Bradsby  v. Wallace

• Citation: 66 N.E. 1088,202 Ill. 239
• Parties: BRADSBY et ux. v. WALLACE et al.
• Decision Date: 24 April 1903
• Court: Supreme Court of Illinois

202 Ill. 239

66 N.E. 1088

BRADSBY et ux.

v.WALLACE et al.

Supreme Court of Illinois.

April 24, 1903.

Appeal from Circuit Court, St. Clair County; M. W. Schaefer, Judge.

Action by James A. Bradsby and wife against J. A. Wallace and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

W. N. Horner and Dill & Wilderman, for appellants.

J. M. Hamill and M. W. Borders, for appellees.

CARTWRIGHT, J.

The circuit court of St. Clair county sustained demurrers of appellees to the amended bill of appellants filed to quiet title to certain property in said county, and to remove alleged clouds therefrom; and, appellants having elected to stand by their bill, it was dismissed, without prejudice, at their cost. They have brought the case to this court by appeal, and assign as errors the sustaining of the demurrers and dismissing of the bill.

The material facts alleged in the bill and admitted by the demurrers are as follows: The complainants, James A. Bradsby and Priscilla Bradsby, are husband and wife, and James A. Bradsby is the son of James W. Bradsby, deceased, who died May 4, 1866, leaving a last will and testament, executed November 6, 1865, which was admitted to probate in the county court on May 8, 1866. The will made the following disposition of the testator's property: By the first paragraph he ordered his funeral expenses and just debts paid. The second paragraph is the portion of the will involved in this suit, and it is as follows: ‘After the payment of my funeral expenses and just debts I give, devise and bequeath unto my son James A. Bradsby my following described real estate, to wit [describing the property]; also all wagons and farming implements; also the undivided half of all the beds and bedding and household and kitchen furniture, and one undivided third part of all my horses and cattle, and all of the hogs, and $1,000 in cash or government bonds at my death. But should the said James A. Bradsby die leaving no heirs, then the said devised property above described to descend to William B. Bradsby, Mary Wallace and Paulina North; all of the foregoing land situate in the county of St. Clair, in the state of Illinois.’ The third paragraph gave to the testator's son William B. Bradsby certain lands therein described. By the fourth paragraph the testator devised and bequeathed to his daughter Mary Wallace the lands therein described; ‘also one gray mare five years old past, and one cow, taking her choice out of the lot of cattle; also one-half of the beds and bedding and household and kitchen furniture.’ By the fifth paragraph he gave to his daughter Paulina North the lands therein described and $300 in cash. By the sixth paragraph he devised to his grandchildren Pauline, Clara, and Hetty Bitzer certain real estate when they arrived at the age of 18 years. By the seventh paragraph he devised to his son-in-law Daniel Bitzer, father of said children, during his natural life, eight acres of the land devised to the grandchildren, upon which there was a brick house, and the remainder of the lands devised to the grandchildren until they should become 18 years of age, on condition that the devisee should raise, support, and school his said children, Pauline, Clara, and Hetty, until they became 18 years of age-the eight acres in which Daniel Bitzer had a life estate to descend to his three daughters above named at his death-and the paragraph ended with this provision: ‘But should either of his daughters die leaving no heirs or children, the deceased sister or sisters' share to descend to the living sister or sisters.’ The eighth paragraph made this devise: ‘I give, devise and bequeath unto James A. Bradsby, William B. Bradsby, Mary Wallace and Paulina North, in equal shares, all of my town property, the same being town lots and houses in the town of Lebanon, in the county of St. Clair and state of Illinois, for which I hold deeds from John L. Sargent and Abbie W. Sargent, his wife, and Charles A. Sargent and Arlitta Sargent, his wife, be the same ten lot in number, more or less, provided not sold or otherwise disposed of before my death.’ After the will was probated the complainant James A. Bradsby entered into possession of the lands devised to him by the second paragraph, claiming that he was seised of said lands by a good and indefeasible estate in fee simple absolute, and he remains in possession under such claim. The household goods, kitchen furniture, wagons, and farming utensils given to him by the second paragraph of the will were turned over by the executor, and the $1,000 in cash was paid to him. The horses, cattle, and hogs, of which one-third was bequeathed to him, were sold by the executor, and one-third of the proceeds were paid to him. The complainants have no children, and have reached ages when there is no possibility of any children being born to them. William B. Bradsby, Mary Wallace, and Paulina North are all deceased, but in their lifetime they claimed that complainant James A. Bradsby's title was a life estate or a determinable fee, and that upon his death without children the fee would devolve upon them, and their heirs make the same claims. The complainants desire to sell and convey the lands devised by said second paragraph, and have an opportunity to sell the complete title, but are hindered and prevented from doing so by the claims of the heirs of William B. Bradsby, Mary Wallace, and Paulina North. The bill asks the court to settle and quiet the title in the complainant James A. Bradsby, and to decree the estate devised by the will to be absolute in him. The adult defendants, in their demurrer, stated as ground, thereof that the matters and things alleged in the amended bill did not show an absolute fee simple title in the complainant James A. Bradsby, and a like reason was alleged as a ground of the demurrer by the guardian ad litem.

The question raised is whether the provision of the second paragraph that, if James A. Bradsby should die leaving no heirs, the property therein devised should descend to William B. Bradsby, Mary Wallace, and Paulina North, was designed by the testator to prevent a lapse of the devise in case of the death of the devisee, James A. Bradsby, in the lifetime of the testator, and was intended as a provision for the substitution of William B. Bradsby, Mary Wallace, and Paulina North upon the happening of such event, or whether it was operative as an executory devise to the testator's other children if James A. Bradsby should die leaving no children. It is clear that the testator, by the use of the word ‘heirs,’ meant ‘children.’ As no one can die without leaving heirs, in the legal sense, the...