Bergan v. Cahill

• Decision Date: 30 September 1870
• Citation: 55 Ill. 160,1870 WL 6394
• Parties: WILLIAM BERGAN et al.v.PATRICK CAHILL et al.
• Court: Illinois Supreme Court

55 Ill. 160

1870 WL 6394 (Ill.)

WILLIAM BERGAN et al.

v.PATRICK CAHILL et al.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Peoria County; the Hon. SABIN D. PUTERBAUGH, Judge, presiding.

This was a proceeding for the partition of two certain lots of ground, brought by the heirs of Martin Morris, deceased, against William Bergan and others. Bergan resists the partition, claiming entire ownership of the lots in question, by virtue of a conveyance from Martin Morris, Jr., who, it is claimed, received the property in fee under the will of his father, upon the termination of a life estate in his mother. The circuit court decreed for the sale of the property and for the distribution of the proceeds as prayed by the bill, and Bergan appeals. The question arises upon the construction of the will of Martin Morris, deceased.

Messrs. BRYAN & COCHRAN and Messrs. O'BRIEN & HARMON, for the appellants.

The whole of a will is to be construed together, irrespective of the form of particular expressions, in order to arrive at the intention of the testator. “If a testator in one part of his will gives to a person an estate of inheritance in lands, and in subsequent passages unequivocally shows that he means the devisee to take a life interest only, the prior gift is restricted accordingly.” 1 Jarman on Wills, 412; Siegwald v. Siegwald, 37 Ill. 435; Smith v. Bell, 6 Peters, 72; Boyd v. Strahan, 36 Ill. 361; Redfield on Wills, part 1, p. 174-5. Mr. THOMAS CRATTY, for the appellees.

The will in this case provides:

1. “I give, devise and bequeath to my beloved wife, Johannah Morris, all my real estate and personal property; also one cow. All, without reserve, I give unto my beloved wife.

2. In case my wife is not supported by her children, so as it may be necessary for her bodily comfort, I give her power to sell and dispose of any or either of the two lots which I now possess and own, etc., (which are the two lots in controversy.)

3. Also, I hereby declare it my wish, that after my wife's decease, whatever property, real or personal, of which she may be possessed, or which she may own at the time of her decease, shall be devised and bequeathed to my faithful son Martin,” etc.

Now, when we consider the first and second clauses above quoted, and apply the doctrine announced in Siegwald v. Siegwald, 37 Ill. 436-7, and cases there cited, it will be impossible to make the third clause operate as a limitation, as contended for by appellants. And it makes no difference that the contingency mentioned in the second clause did not arise, or that she did not sell the lots during her lifetime. Such a limitation is repugnant to the former provision-- the “power to sell”--and therefore void. Jackson v. DeLancy, 13 Johns. 537; Jackson v. Bull, 10 Johns. 19; Ide v. Ide, 5 Mass. 500; Siegwald v. Siegwald, 37 Ill. 430-1.

Mr. JUSTICE THORNTON delivered the opinion of the Court:

Martin Morris died, leaving a will containing the following disposition of his property:

“First--My will is that all my just debts and funeral expenses shall, by my executors hereafter named, be paid out of my estate as soon after my decease as shall by them be found convenient. First, I give, devise and bequeath to my beloved wife, Johanna Morris, all my real estate and personal property; also one cow. All, without reserve, I give unto my beloved wife. N. B. In case my wife is not supported by her children, so as it may be necessary for her bodily comfort, I give her power to sell and dispose of any or either of the two lots which I now possess and own in Underhill's Addition to the City of Peoria. Also, I hereby declare it my wish that after my wife's decease, whatever property, real or personal, of which she may be possessed, or which she may own at the time of her decease, shall be devised and bequeathed to my faithful son, Martin, providing that he pays over unto my daughter, Julia, one hundred dollars or an equivalent.”

The will...