Carpenter v. Sangamon Loan & Trust Co.

• Decision Date: 23 October 1907
• Citation: 229 Ill. 486,82 N.E. 418
• Court: Illinois Supreme Court
• Parties: CARPENTER et al. v. SANGAMON LOAN & TRUST CO.

229 Ill. 486

82 N.E. 418

CARPENTER et al.

v.SANGAMON LOAN & TRUST CO.

Supreme Court of Illinois.

Oct. 23, 1907.

Appeal from Circuit Court, Sangamon County; James A. Creighton, Judge.

Suit by the Sangamon Loan & Trust Company against John Carpenter and others for partition. From a judgment for complainant, defendants Carpenter appeal. Reversed and remanded.

E. L. Chapin and Hamilton & Catron, for appellants.

Brown, Wheeler, Brown & Hay, for appellee.

SCOTT, J.

Margaret Carpenter died testate on April 12, 1883, a resident of Sangamon county, Ill., and possessed of lands located in that county. At the time of her death she was a widow, and left surviving as her only heirs her children, Samuel Carpenter, Catherine Wood, Elizabeth Cobbs, Margaret Browning, George Carpenter, John Carpenter, Sarah Jane Carpenter, and Mary Ellen Carpenter. Her will contains but four clauses. The first directs the payment of her debts and funeral expenses. The second gives to her daughter Elizabeth a legacy of $1,000. The fourth nominates executors, and the third, the construction of which is involved in this litigation, reads as follows: ‘I will and bequeath to my beloved sons John Carpenter and George Carpenter, and my beloved daughters Sarah Jane Carpenter and Mary Ellen Carpenter, all the remainder of my estate, both personal and real, of whatever kind and wherever situated, of which I may die seized or possessed, to be equally divided between them, share and share alike, each one taking one-fourth; and if one or more of said devisees should die without leaving a wife or husband or child or children, then to the survivor or survivors of them, and to their heirs and assigns, and to their sole use and behoof forever.’ All the devisees named in the third clause were children of, and survived, the testatrix. George Carpenter died intestateon December 10, 1904, and did not leave wife or child, but left certain brothers and sisters and certain nephews and nieces, children of deceased brothers and sisters, as his only heirs at law. On March 27, 1906, his sister Margaret Browning died testate and devised the legal title of her real estate to the Sangamon Loan & Trust Company, and that company, on December 5, 1906, filed its bill for partition in the circuit court of Sangamon, seeking partition of certain real estate which passed under clause 3 of the will of Margaret Carpenter, on the theory that George Carpenter by that clause became seised in fee simple absolute of the undivided one-fourth thereof, and that upon his death intestate Margaret Browning inherited a portion of that undivided one-fourth. All the heirs at law of George Carpenter, deceased, and all others having or claiming to have any interest in the lands, were made defendants. John Carpenter and Sarah Jane Carpenter, two of the devisees named in clause 3, demurred to the bill, on the theory that the interest taken by George Carpenter under that clause was a base or qualified fee, and that upon his death, leaving no wife or child surviving, the one-fourth interest devised to him by that clause passed to the other three devisees named therein. The demurrer was overruled, and the defendants were ruled to answer. John Carpenter and Sarah Jane Carpenter were thereafter defaulted for want of answer. Certain of the other defendants answered, and the cause proceeded in the ordinary manner, and resulted in a decree for partition in accordance with the prayer of the bill. From that decree John Carpenter and Sarah Jane Carpenter have appealed to this court, and assign for error the action of the court in overruling their demurrer.

Is the death contemplated by the third clause a death occurring in the lifetime of the testatrix, or is it a death taking place at any time? If the death contemplated is one occurring only before the death of the testatrix, then George Carpenter took an absolute fee-simple title to the undivided one-fourth of the real estate devised by that clause, and the demurrer was properly overruled. If, on the other hand, the death contemplated is one occurring at any time, either before or after the death of the testatrix, then George Carpenter took only a base or qualified fee, determinable by his death without leaving wife or child, in which event the demurrer should have been sustained, and the decree of the circuit court should be reversed. The rule which we think controls is clearly stated in that portion of the opinion in the case of Britton v. Thornton, 112 U. S. 526, 5 Sup. Ct. 291, 28 L. Ed. 816, which reads as follows: ‘When, indeed, a devise is made to one person in fee, and ‘in case of his death’ to another in fee, the absurdity of speaking of the one event which is sure to occur to all living as uncertain and contingent has led the courts to interpret the devise over as referring only to death in the testator's lifetime. 2 Jarman on Wills, c. 48; Briggs v. Shaw, 9 Allen (Mass.) 516; Lord Cairns in O'Mahoney v. Burdett, I. R. 7 H. L. 388, 395. But when the death of the first taker is coupled with other circumstances which may or may not ever take place, as, for instance, death under age or without children, the devise over, unless controlled by other provisions of the will, takes effect, according to the ordinary and literal meaning of the words, upon death, under...