Cooper v. Cooper

• Decision Date: 31 January 1875
• Parties: MARK H. COOPER et al.v.SARAH A. COOPER et al.
• Court: Illinois Supreme Court

76 Ill. 57

1875 WL 8149 (Ill.)

MARK H. COOPER et al.

v.SARAH A. COOPER et al.

Supreme Court of Illinois.

January Term, 1875.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Menard county; the Hon. LYMAN LACEY, Judge, presiding.

This was a bill filed by Mark H. Cooper and others, heirs at law of William Cooper, deceased, against Sarah A. Cooper, widow, and the other heirs at law of said William Cooper, for the partition of certain lands and for the assignment of the widow's dower therein. The court below dismissed the bill, and complainants appealed.

Mr. EDWARD LANNING, and Mr. T. W. MCNEELY, for the plaintiffs in error.

Mr. N. W. BRANSON, for the defendants in error.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

It appears that on the 4th day of March, 1865, Noah M. King and wife conveyed to Wm. Cooper and Sarah Ann Cooper, his wife, and the heirs of her natural body, several tracts of land in Menard county. The consideration expressed in the deed was $6,350, and is stated to have been paid by the party of the second part.

Again, on the 9th day of March, 1866, Wm. S. Senter and wife conveyed to Cooper and wife, for the consideration of $4,000, paid by the party of the second part, certain lands in Menard county.

The granting clause of the deed is this: “Have granted, bargained and sold, and by these presents do grant, bargain and sell, unto the party of the second part and his assigns, with power to sell the same, during the life of said Wm. Cooper, and to his wife, Sarah Ann Cooper, after the death of her husband, Wm. Cooper, during her widowhood, and after her death or after she ceases to be the widow of said Wm. Cooper, to the heirs of Wm. Cooper on the body of said Sarah A. Cooper begotten, certain tracts of lands,” etc. And the habendum clause is this: “To have and to hold the aforesaid tracts of land, together with all and singular the privileges and appurtenances thereto belonging, to the only proper use and benefit of the party of the second part, with full power and authority of the said William Cooper to sell, bargain and convey any of said lands or premises during the life of said Wm. Cooper, and after the death of said Wm. Cooper the said lands, if the same shall not have been sold or conveyed by said Wm. Cooper, to be held, possessed and enjoyed by her, the said Sarah A. Cooper, so long as she shall remain the widow of said Wm. Cooper, and all rents and profits thereof, and after she ceases to be the widow of said Wm. Cooper, by death or marriage, the said land and premises to be held and owned by the heirs of said Wm. Cooper on the body of said Sarah A. Cooper, his wife, begotten, or hereafter begotten, in their own right in fee simple, forever, and to their heirs and assigns.”

Cooper and wife sold no portion of the lands embraced in these deeds, and he departed this life some time in June, 1873, leaving complainants and others his heirs at law; the widow, Sarah A. Cooper, is still living and has not married since his death; Albert W., George A., Emma M., Martha A. and Ella J. Cooper, are the only children of the body of Sarah A. Cooper, begotten by intestate-- the other heirs, we presume, are his children by a former wife, and the children of his deceased children. The master reported that they were heirs, but does not report how they became so, but says they are his children.

Complainants filed a bill for partition, making the widow and her children, and some of the other heirs, defendants. A hearing was had, when the court below found that Sarah A. Cooper, the widow, had a life estate in the Senter lands, and that her children held the remainder after her death; and that she was entitled to hold the Senter lands during widowhood, and, if she never married, for life, in remainder to her children, and dismissed the bill at the costs of complainant. From that decree complainants appeal to this court.

We shall consider and give a construction to the Senter deed first. It is urged that this deed vested the absolute fee in intestate; that it was granted to him and his assigns, and, never having assigned the premises, it descended to his heirs generally; and that, on his death, complainants took under the Statute of Descents. On the other side, it is contended that the deed only vested in intestate a life estate, with power of sale, and, in default of a sale, in remainder for life, entailed to his heirs on her body begotten.

There would seem to be no doubt that William Cooper, by this deed, took a life estate, with a power to sell and convey the fee. From the entire grant, this is the only reasonable construction that can be given to the language; otherwise, all the language of the granting clause which limits a life estate on Sarah A. and Cooper's heirs, begotten on her body, must be rejected, and no rule of law requiring its rejection has been referred to, nor does any occur to us. The language undeniably purports to limit a remainder during widowhood, or for life, on Sarah A., and then a fee tail on his heirs begotten on her body.

The rules of construction require that all of the language of the grant shall be considered, and effect given to it, unless so repugnant or meaningless that it can not be done. When that is the case, the repugnant or senseless portion may, in some cases, be rejected; but the language employed in the granting clause of this deed is neither repugnant nor senseless. It is consistent and harmonious. Had the granting clause stopped with the power to sell, the want of any words to carry a fee to intestate would have been obvious. It used no words that could be construed to confer the title upon his heirs, or that he was to take anything more than a life estate. It is not to him and his heirs, but to him and his assigns. Had it been to him, without the words “and his heirs,” had the word “assigns” been omitted, no one would have supposed that he took anything more than a life estate.

That portion, then, of the granting clause only conveying to him a life estate, it was entirely competent to confer on him full and ample power to sell and convey the fee simple of the premises, which was done by this deed. Having created a life estate in him, it was competent for the grantor to limit a conditional life estate upon his wife, to be defeated on marriage after the death of her husband, and then to entail the estate, as far as our statute permits, to his heirs begotten on her body. Under the rules of the common law, this was not only permissible but was common in conveyancing. And that this deed conveyed a contingent life estate to Sarah A., liable to be defeated on her again marrying, we have no doubt, and that, under our statute, it conveyed a remainder in fee simple absolute to his heirs, on her body begotten, before or after the grant, admits, we think, of no doubt. See Beacroft v. Strawn, 67 Ill. 28; Butler v. Hustis, 68 Ill. 594; Voris v. Sloan, 68 Ill. 588; and Blair v. Vanblaircum, 71 Ill. --. In these cases it is held, that the 6th and 14th sections of the Conveyance Act, (R. S. 1845,) have converted what at common law is a fee tail, into a life estate in the donee, and a remainder in fee simple absolute in the heirs of the body of the grantee. And we have no hesitation in saying, that these cases fully cover and control this; hence there is no error in the decree as to the lands embraced in this deed.

Nor can the habendum clause enlarge the estate contrary to the terms of the granting clause. Its proper effect is, not to give anything, but to limit or define the certainty of the estate to the feoffee or grantee who should be previously named in the premises of the deed; but in this case the habendum clause does not profess to enlarge the grant, but follows it in its limitations.

Nor do we see that the...