Bender v. Bender

• Decision Date: 21 April 1920
• Docket Number: No. 13127.,13127.
• Citation: 127 N.E. 22,292 Ill. 358
• Parties: BENDER et al. v. BENDER et al.
• Court: Illinois Supreme Court

292 Ill. 358

127 N.E. 22

BENDER et al.

v.BENDER et al.

No. 13127.

Supreme Court of Illinois.

April 21, 1920.

Bill by Herman Bender and others against Mary Bender and others. From a decree for defendants, complainants appeal.

Reversed and remanded, with directions.

Appeal from Circuit Court, Madison County; George A. Crow, judge.

D. E. Keefe and S. W. Baxter, both of East St. Louis, for appellants.

Geers & Geers, of Edwardsville, for appellees.

DUNN, C. J.

Herman Bender died on March 27, 1901, leaving his wife and their ten children surviving. By his will executed at Texarkana, Tex., two weeks before his death, he disposed of his property as follows:

‘I will and bequeath unto my beloved wife, Mary Bender, all my real estate and personal property of every kind and description that I may own at my death and direct that she shall be put in possession of the same immediately after my death. I direct further that my wife. Mary Bender, have exclusive control of all property herein bequeathed to her by me and at her death the same to be divided equally among our surviving children, share and share alike. This distribution to be made by will of my wife, appointing two of our surviving sons executors of her will to carry into effect her wishes.’

The estate consisted of personal property of the value of $15,000 and over 400 acres of land in Madison county, where the testator resided. Mrs. Bender was appointedadministratrix with the will annexed, took charge and assumed the management and control of all the property. No appraisement was made, and she never made any report of her acts as administratrix, but, assuming that she was the absolute owner of all the property, has managed, controlled, and exercised authority over it as owner ever since her husband's death, and has sold, exchanged, and disposed of all the chattel property. Soon after the testator's death, a railroad company condemned a part of the land, and the condemnation money, amounting to $10,000, was paid to Mrs. Bender, who purchased a farm with it, taking the title in her own name. She also invested money arising from the estate in other real estate, taking the title in her own name. Three of the children filed a bill to the May term, 1919, of the circuit court of Madison county against their mother and the other children, averring the facts which have been stated and praying for an accounting by Mrs. Bender of all the personal property of the testator which has come into her possession and of the amount of money which she has used belonging to the estate, and for a decree, if any such money has been invested in real estate, establishing a lien upon such real estate for the amount found due from Mrs. Bender, and for general relief. The court sustained a demurrer to the bill, which was dismissed for want of equity, and the complainants appealed.

The questions arising on the record are: Does the will give Mrs. Bender a fee simple in the real estate and the absolute ownership of the personal property or only a life estate? If the latter, is the remainder to the children vested or contingent? Have the complainants such an interest as entitles them to maintain the bill?

The effective part of the will consists of the three sentences which have been quoted. The first, under the terms of section 13 of chapter 30 of the Revised Statutes, is clearly sufficient to invest the testator's wife with the absolute ownership of all his property in fee simple. That section requires this sentence to be construed in connection with the next, which with equal clearness limits the estate to the wife for life with remainder in fee to the children of the testator and his wife. Counsel for the appellees concede that this construction might be given to the language thus far were it not for the effect of that which follows. What follows in no manner limits the estate given. It does not affect the interests created by the will, but merely provides a method for making the distribution at the death of the life tenant of ascertaining the equal shares to which each of the surviving children will then be entitled. The method is not an essential part of the gift. The testator might have selected some way of making a division other than to give the life tenant power to make the distribution by will. He might have named an executor and directed him to make the division or the power might have been given to some other person or some other method of making the division might have been directed. The gift is of the remainder in equal shares. The division is to be made in the manner provided in the will, if possible. If it is not possible, the estate may be partitioned in the usual way.

The appellees contend...