Bois v. Judy

• Decision Date: 18 February 1920
• Docket Number: Nos. 12945,13019.,s. 12945
• Citation: 291 Ill. 340,126 N.E. 104
• Parties: DU BOIS et al. v. JUDY. SAME v. JUDY et al.
• Court: Illinois Supreme Court

291 Ill. 340

126 N.E. 104

DU BOIS et al.

v.JUDY.

SAME

v.JUDY et al.

Nos. 12945, 13019.

Supreme Court of Illinois.

Feb. 18, 1920.

Partition suit between Charles C. Judy and Laura Du Bois, Allie Redmond, Mrs. Firestock, and others. From the decree rendered, Judy appeals, and Allie Redmond and Mrs. Firestock also appeal.

Reversed and remanded, with directions.Appeals from Circuit Court, Menard County; Guy R. Williams, judge.

Edward H. Golden and Arthur W. Lilienstein, both of Petersburg (John M. Smoot, of Petersburg, of counsel), for appellant Judy.

Thomas P. Reep, of Petersburg, for appellants Redmond and Firestock, and for appellees Greene, Thurman, Harriet Johnson, Louis Johnson, Stephen Johnson, and Ralph Johnson.

Frank E. Blane, of Petersburg, for appellees Du Bois, Wilson, Bownell, and Greene.

DUNN, C. J.

Two appeals have been prosecuted from a decree of the circuit court of Menard county for the partition of two tracts of land, one of 70 acres and the other of 85 acres. The land belonged at one time to Johnson Gaines Greene, who on March 26, 1881, conveyed the 70-acre tract by warranty deed in statutory form to ‘the heirs at law of Woodson P. Greene, * * * reserving herein, however, and hereby conveying to Woodson P. Greene a life estate in the above-described real estate, the said grantees first above named to have and receive said lands at the death of Woodson P. Greene.’ On September 2, 1889, by virtue of a master's deed, under a decree of foreclosure of a mortgage Charles C. Judy became the owner of the interest of Woodson P. Greene in the tract. Johnson Gaines Greene died in 1885, leaving a will, which devised the 85-acre tract as follows:

‘I give and devise to my son, Woodson P. Greene [description of the tract], to have and to hold for and during the term of his natural life and at his death then to the heirs of his body in fee simple.’

The will also contained the following provision with respect to this and certain other devises:

‘In event either of said four sons and daughters should die leaving no heir or heirs of his or her body to take the fee in the portion above devised to them, in such case that particular portion of land shall be taken by my heirs in fee simple, just as though I had died intestate, at date of death of such son or daughter.’

By the virtue of an execution sale and sheriff's deed and mesne conveyances, Judy in 1888 became the owner of the interest of Woodson P. Greene in this tract also. Woodson P. Greene died on October 8, 1918, having had eight children, seven of whom survived him and are parties to this suit. The eighth child, Charity Johnson, died December 25, 1911, leaving five children, who were also parties. Three of Woodson P. Greene's children-Charity Johnson and her husband on February 8, 1897, Minnie Greene (now Firestock) on February 21, 1898, and Allie Redmond and her husband on March 10, 1900-executed quitclaim deeds in statutory form, conveying and quitclaiming to Judy all interest in both tracts. The court decreed that Judy was the owner of one-fourth of both tracts by virtue of the quitclaim deeds of Minnie Firestock and Allie Redmond; that he took nothing by the deed of Charity Johnson, but the other five children of Woodson P. Greene each owned one-eighth and each of the five children of Charity Johnson one-fortieth of both tracts; and that partition should be made. Judy, Mrs. Firestock, and Mrs. Redmond have appealed.

Judy claims to be the owner of all the 70-acre tract and of three-eighths of the 85-acre tract, while the other appellants claim that he has no interest in either tract, but they are each entitled to one-eighth of both.

The rule in Shelley's Case is firmly established in this state as a rule of property. We said in Winter v. Dibble, 251 Ill. 200, 95 N. E. 1093:

‘The rule as stated by Coke (volume 1, 104a) is that ‘when the ancestor by any gift or conveyance takes an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs in fee or in tail, that always in such cases ‘the heirs' are words of limitation of the estate and not words of purchase.’ This is a rule of law and not of construction, and the use of the word ‘heirs,’ unless it clearly appears from the instrument to have been used in a sense different from its strict legal meaning, is conclusive of the intention. No declaration, however positive, that the ancestor shall be tenant for life and no longer, and shall have no power to sell or dispose of the premises or any part of them, or to defeat the intention of the testator, will prevent the application of the rule. Lord v. Comstock, 240 Ill. 492 ;Deemer v. Kessinger, 206 Ill. 57 ;Hageman v. Hageman, 129 Ill. 164 ;Carpenter v. Van Olinder, 127 Ill. 42 [19 N. E. 868,2 L. R. A. 455, 11 Am. St. Rep. 92]. If a testator has used technical language which brings the case within the rule, a declaration, however positive, that the rule shall not apply, or that the estate of the ancestor shall not continue beyond the primary express limitation, or that his heirs shall take by purchase and not by descent, will be unavailing to exclude the rule and cannot affect the result. Daniel v. Whartenby, 17 Wall. 639 ; Hargrave's Law Tracts, 562; 2 Jarman on Wills, 311.'

The deed of Johnson Gaines Greene to Woodson P. Greene comes exactly within the rule as stated by Lord Coke. By it Woodson P. Greene takes an estate of freehold-that is, for life-and an estate is limited immediately to his heirs in fee. In such case ‘the heirs' are words of limitation of the estate and not words of purchase.

The appellees argue that there is no limitation by way of remainder to heirs as the words are used in the rule; that the carving of a life estate by way of reservation out of a grant of a fee simple while leaving a remainder for some purposes does not leave the character of remainder coupled with the freehold in the ancestor contemplated by the rule. The form of the conveyance is not material. There is no reservation of a life estate. Strictly, a reservation in a deed is some right in favor of the grantor created out of or retained in the granted premises. A purported reservation in favor of a third person can only take effect as a grant to him by way of exception to the other grant, and in such case there must be words of conveyance to the third person, except that a grantor may reserve to himself and his wife an estate during their natural lives, which will continue during the life of the survivor. White v. Willard, 232 Ill. 464, 83 N. E. 954. The life estate to Woodson P. Greene is created by construing the words ‘reserving herein, however, and hereby conveying to Woodson P. Greene a life estate in the above-described real estate,’ as a conveyance from Johnson Gaines Greene, and the conveyance to the heirs of Woodson P. Greene would be void if the deed did not contain the conveyance of the life estate to Woodson P. Greene. A conveyance of a present estate to the heirs of a living person is void for uncertainty, because those who will take as heirs cannot be known until the person's death; but future estates may be limited to persons who are not ascertained or even not in existence, provided there is a present particular estate to sustain the remainder and the grantee shall be in existence when the time arrives for the enjoyment of the estate. AEtna Life Ins. Co. v. Hoppin, 249 Ill. 406, 94 N. E. 669. It is only because of the conveyance of the life estate that the conveyance to the heirs has any validity. Chancellor Kent's definition of a ‘remainder’ is:

‘A remnant of an estate in land depending upon a particular prior estate created at the same time and by the same instrument and limited to arise immediately on the determination of that estate and not an abridgment of it.’ 4 Kent's Com. 197.

If any estate was limited by the deed to the heirs of Woodson P. Greene, it was an estate in remainder in fee.

It is argued that the words ‘heirs at law’ of Woodson P. Greene are used to designate the individuals to whom the fee is granted, that is, those persons who shall be Woodson P. Greene's heirs at law at his death; that they are to take directly from the grantor and not by descent from Woodson P. Greene; and that they take a distinct estate from that grantor to Woodson P. Greene. There is nothing in the deed to indicate that the grantor used the words ‘heirs at law’ in any other than their technical sense. The word ‘heirs' is a word of limitation where it is not used to describe individuals but to designate heirs generally or the whole line of heirs in succession. It is not to be construed as a word of purchase unless there are other controlling words showing such intention by the person using it, and if it is used as a word of limitation its effect is to mark out the estate granted. Ortmayer v. Elcock, 225 Ill. 342, 80 N. E. 339. The question of intention does not depend upon the desire of the grantor or testator to have the rule disregarded in the construction of the instrument, but does depend upon the use of the words with a meaning different from their technical sense. A grantor or testator may use the word ‘heirs' in the sense of children, or the language of the instrument may indicate that the words of inheritance were not...