Bond v. Moore

• Decision Date: 08 December 1908
• Citation: 236 Ill. 576,86 N.E. 386
• Parties: BOND et al. v. MOORE et al. CURTIS v. SAME.
• Court: Illinois Supreme Court

236 Ill. 576

86 N.E. 386

BOND et al.

v.MOORE et al.

CURTIS

v.SAME.

Supreme Court of Illinois.

Oct. 26, 1908.

Rehearing Denied Dec. 8, 1908.

Appeal from Circuit Court, Cook County, G. A. Carpenter, Judge.

Petitions by W. A. Bond and others and by Lester Curtis against Sally Palmer Curtis Moore and others, to register land titles. From decrees dismissing the petitions, petitioners appeal, and the appeals were consolidated. Reversed and remanded.

Horace K. Tenney and Albert M. Kales, for appellants.

John S. Huey, for appellees.

DUNN, J.

Sarah Walker died testate in 1883, seised of the west quarter of lot 2, in block 32, known as No. 205 Lake street, and of the west quarter of lot 3, in block 16, known as No. 103 South Water street, both in the original town of Chicago. The second clause of her will, which was executed September 25, 1876, was as follows: ‘I give bequeath and devise all of my estate, real and personal, unto my son, Lester Curtis, during his lifetime, and authorize him to sell or exchange any or all of my real estate, and to invest the proceeds thereof as in his judgment he may think best; but should he die without children, then the estate, or so much of it as may remain after his reasonable expenses for living, etc., shall go to my nearest relatives, in such proportions as the law in such cases does provide.’ Lester Curtis was the only heir of the testatrix. He was unmarried at the date of the will, but at the time of the death of the testatrix he was married and had two children. Immediately after his mother's death he entered into possession of the premises, and has ever since continued in possession of them. In February, 1908, he conveyed them to William A. Bond, by deeds reciting the second clause of the will of Sarah Walker that under it Lester Curtis took a life estate, and that he was also entitled, by descent, to a legal reversion of the fee pending the event of his dying without children, and the taking effect in possession, in that event, of the gift to the testatrix's nearest relatives, and that it was the intention of the grantor to convey the life estate and the reversion in fee, so that the life estate should merge in the fee and be extinguished and prematurely destroyed, and the grantee be vested at once with a legal estate in fee in possession, and that any contingent future interest in the nearest relatives should be destroyed. On February 13, 1908, William A. Bond executed a declaration of trust in favor of Lester Curtis for the premises at No. 103 South Water street in fee, and on February 24, 1908, together with his wife, by special warranty deed conveyed the premises at No. 205 Lake street to Lester Curtis. On February 26, 1908, Bond, claiming the fee as trustee, filed his application to have the title to the premises at No. 103 South Water street registered under the Torrens act, and Curtis filed a separate application for the registration of the title to the premises at No. 205 Lake street. The two daughters of Curtis were made parties defendant, as were also various nieces and nephews of Sarah Walker, her next of kin. Mary Isabel Curtis, one of the daughters, assented to the petition, but the appellee Sally Palmer Curtis Moore, the other daughter, filed an answer, denying that Lester Curtis and Bond were the owners of the fee, and alleging that she and her sister were the owners of the fee in remainder, subject to the life estate. The answers of the nieces and nephews alleged that, next to the daughters, they were the nearest relatives of Sarah Walker, and in case of the death of the two daughters without issue before the death of their father, such of the nieces and nephews as should survive Lester Courtis would be entitled to the fee. The causes were referred to an examiner, who found that the petitioners were the owners of the fee and entitled to have their titles registered; but upon objection the reports were disapproved, and decrees were entered dismissing the applications, but without prejudice to the rights of the petitioners in an estate less than the fee. The appeals, prosecuted separately to this court, have been consolidated.

The principal question arising upon the construction of the second clause of Sarah Walker's will is whether or not there was a devise, by implication, of the remainder in fee to the children of Lester Curtis, by reason of the gift over to the nearest relatives of Sarah Walker should he die without children. The appellees contend that under this clause the daughters of Lester Curtis took a vested remainder in fee, subject to his life estate, while the appellants contend that no remainder was given, by implication, to the children of Lester Curtis, but that the reversion in fee descended to Lester Curits, as sole heir at law of his mother, pending the happening of the events upon which the estate given over to the nearest relatives depended, and that upon the conveyance of the life estate and the reversion to Bond the life estate merged in the reversion, and the contingent remainder to the nearest relatives was destroyed because of this termination of the particular estate before the happening of the event upon which the contingent remainder depended. The object of the construction of wills is to ascertain the intention expressed by the testator. The intention sought is not that which by inference may be presumed to have existed in the mind of the testator, but that which by the words used in the will he has expressed. Engelthaler v. Engelthaler, 196 Ill. 230, 63 N. E. 669;Williams v. Williams, 189 Ill. 500, 59 N. E. 966;Bingel v. Volz, 142 Ill. 214, 31 N. E. 13,16 L. R. A. 321, 34 Am. St. Rep. 64. It will be presumed that it was the intention of the testator to dispose of his entire estate, and not to die intestate as to any portion thereof. Any reasonable construction will be adopted, consistent with the terms of the will, so as to dispose of the entire estate; but, where no intention is shown by the will as to the disposition of a part of the testator's property, it must be regarded as intestate. Minkler v. Simons, 172 Ill. 323, 50 N. E. 176;Craw v. Craw, 210 Ill. 246, 71 N. E. 450. Devises by implication have been recognized, but they can only be given effect in cases of such clear necessity that from the will itself no reasonable doubt of the intention can exist. Probabilities as to the testator's intentions cannot be weighed, but the implication must be so strong that an intention contrary to that imputed to the testator cannot be supposed to have existed in his mind. Barlow v. Barnard, 51 N. J. Eq. 620, 28 Atl. 597;Brown v. Quintard, 177 N. Y. 75, 69 N. E. 225. It must be such as to leave no hesitation in the mind of the court, and permit no other reasonable inference. Connor v. Gardner, 230 Ill. 258, 82 N. E. 640. Moreover, a gift by implication must be founded upon some expression in the will. It cannot be inferred from an absolute silence on the subject. In re Reinhardt, 74 Cal. 365, 16 Pac. 13; Nickerson v. Bowly, 8 Metc. (Mass.) 424; O'Hearn v. O'Hearn, 114 Wis. 428, 90 N. W. 450,58 L. R. A. 105.

The estate given to Lester Curtis by the will is expressly limited to his life. Should he die without children, the remainder is disposed of. The will says nothing as to the disposition of the remainder should Lester Curtis have children. Appellees contend that the gift over, in default of children, implies a gift to the children should any be born. This question has arisen in the English courts, and a series of decisions has established the rule there that a devise to one for life, with a remainder over if he dies without issue, does not, of itself give an estate, by implication, to his issue. Greene v. Ward, 1 Russ. 262; Sparks v. Restal, 24 Beav. 218; Ranelagh v. Ranelagh, 12 Beav. 200; Neighbour v. Thurlow, 28 Beav. 33; In re Hayton's Trusts, 4 N. R. 55; Seymour v. Kilbee, 3 L. R. Ir. 33; In re Rawlin's Trusts, 45 Ch. Div. 299; Scale v. Rawlins [1892] L. R. A. C. 342. Such is stated to be the rule of law in Page on Wills, 554, and 2 Redfield on Wills (3d Ed.) 204. In the case of Neighbour v. Thurlow, supra, it was said: ‘The court will give the most liberal construction to the words of a testator in order to carry out his intention, but it is contrary to every principle to introduce words into a distinct bequest in order to make the will more reasonable, or to supply a gift which is not to be found in the will. It is settled that, where there is a gift to A. for life, and, if he die without leaving issue, to B., it does not create an implied gift to the children of A. Though it is natural enough to suppose that some words may have been omitted, still the answer is that the testator has not inserted them, and the court cannot do so for them.’ In Seymour v. Kilbee, supra, it was said that ‘no such gift [to children] can be implied from the gift over only, and it could only be supported by some other matters existing in the will raising an inference in favor of the issue. I can find nothing of the kind in this will. It does not contain a single word favoring the implication of an interest in the issue beyond the mere gifts over.’ Where in a will there is a gift to A. for life, with a gift over ‘on the death of A. without leaving children,’ those words are not, by themselves, without assistance from other parts of the will, sufficient to create a gift, by implication, to the children. In re Rawlin's Trusts, supra. The same principle was followed in the cases of Brown v. Quintard, supra, and Barlow v. Barnard, supra. In the former case the testator directed the division of his residuary estate into four parts, one of which was to be given to one of his children, with certain deductions on account of advancements. The testator had four children but no disposition was made of the other three parts of the residuaryestate. The court held that there was not a devise by implication, citing a number of cases illustrating the...