Drager v. McIntosh

• Decision Date: 24 April 1925
• Docket Number: No. 16365.,16365.
• Citation: 147 N.E. 433,316 Ill. 460
• Parties: DRAGER v. McINTOSH.
• Court: Illinois Supreme Court

316 Ill. 460

147 N.E. 433

DRAGER

v.McINTOSH.

No. 16365.

Supreme Court of Illinois.

April 24, 1925.

Bill for specific performance by Gustav G. Drager against William G. McIntosh. From a decree for specific performance, defendant appeals.

Affirmed.Appeal from Circuit Court, Livingston County; Stevens R. Baker, judge.

H. G. Greenebaum, of Pontiac, and Cyril A. Burns, of Fairbury, for appellant.

Kennedy & Kennedy, of Bloomington, for appellee.

DUNN, J.

The appellant and appellee entered into a contract for the exchange of real estate in Livingston county, each to give to the other an abstract showing a ‘good, merchantable, and sufficient’ title to the property he agreed to convey. Abstracts of title were exchanged, and the appellee on the date fixed for that purpose offered to perform the contract, but the appellant refused to accept the offer, because he had been advised by his attorney that the title offered was not good. The appellant concedes that the appellee has fully complied with the contract if his title is good, and that is the only question presented for decision. The appellee filed his bill in the circuit court of Livingston county for the specific performance of the contract. The appellant demurred, the demurrer was overruled, and a decree for specific performance was rendered, from which the defendant appealed.

The premises in question were formerly owned by John Crabb, a resident of Jasper county, Ind., where he died on September 1, 1916, having on July 17, 1909, executed his will, which was probated in the circuit court of Jasper county, Ind., and on February 25, 1918, was probated in Livingston county, Ill. His heirs were his seven adult children. The will in three items made a complete disposition of the testator's property, as follows:

‘Item 1. It is my will that all my just debts and funeral expenses be all first fully paid.

‘Item 2. I give, devise and bequeath all the remainder of my property real, personal and mixed of every kind and description and wherever situated, to my seven children, viz. Ada May Beeks (née Crabb), Charles Albert Crabb, Elizabeth Ann Phillips (née Crabb), Walter James Crabb, Dora Celia Cornwell (née Crabb), Ethel Janet Pampel (née Crabb), and Zephyr Grace Crabb, they to have the same in fee simple absolute, in equal proportion, share and share alike.

‘Item 3. In case of the death of any of my said children leaving heirs of their body alive, then the interest of such deceased child shall go to his or her child or children in equal proportions, but in case any of my said children shall die leaving no child or children or descendants of deceased child or children, then the interest of such deceased child shall go to the remainder of my said children or to the descendants of such as may be dead in the proportion herein expressed.’

It appears from the allegations of the bill that for many years prior to 1909, continuously to his death, John Crabb resided in Jasper county, in the state of Indiana. At the time of making his will, and for some time prior and until his death, he was a widower, and his heirs were his seven adult children. At the time of making his will all except the youngest, a daughter about 18 years old, who was keeping house for her father, were married and had homes of their own. All of them but one, the oldest, had children. At the time of the testator's death all his children were living and married. All had children but the youngest, who now has two, born since her father's death, and the oldest, who died after her father's death, never having had a child. The testator's second child, a son, died in 1924, leaving three children. The testator at the time of making his will was about 60 years old, strong physically and mentally, and was, and always had been, a man of good health, happy and genial disposition, on friendly and intimate terms with his children, visiting them frequently at their homes, always manifesting great interest in them and their affairs, and fond of each and all of them. He had lived in Jasper county all his life, owned various tracts of land in that state, and had at various times in his life bought and sold land in that state. At that time, in addition to being the owner of the tracts of land in Indiana, he also owned the land in question in Livingston county, Ill. At the time of the execution of his will four of his children resided in Jasper county; all having good business qualifications and settled residence in that county, competent to act as executors and in every way, and he had confidence in their business ability. But he did not nominate any of his children as executors, but named one of his sons-in-law and a collateral relative. The bill represents that the will vested the title to the lands in fee simple in the testator's children; that afterward, on February 2, 1918, they conveyed the land by warranty deed to the appellee; that item 3 of the will was inserted for the sole purpose of providing against lapses; that there is no statute in the state of Indiana providing for children or grandchildren in case a devisee should die in the lifetime of the testator, and it is the usual and common practice in that state to place in wills provisions of the character in item 3 of this will to guard against lapses, and the purported devises in that item were simply substitutional devises for the purpose of covering conditions which might arise in case any of the children of the testator should die before his death; that his intention, as shown by his whole will, was to give an absolute fee-simple estate in his real estate to his children; that he did give them such estate in item 2 of his will; that item 3 did not in any way affect such estates, and that the deaths contemplated in item 3 were deaths which might occur in the lifetime of the testator.

The language of item 2 of the will is clearly sufficient to devise the land to the testator's children as tenants in common, in fee simple. The question for us to determine is, How is this devise affected by the language of item 3? The appellee's answer is: Not at all; that the reference in item 3 to the death of any of the testator's children relates only to death in the lifetime of the testator, and the purpose of the clause is only to substitute as devisee for any child so dying the persons mentioned in item 3. This is directly contrary to the well-established rule of construction which has been announced in numerous cases in which this court has construed strued similar clauses in wills, that when a devise is made to a person in fee and in case of his death to another in fee the absurdity of treating as contingent or uncertain the one event which is sure to occur to all living requires an interpretation of the devise over as referring only to death in the testator's lifetime, but when the death of the first taker is coupled with other circumstances which may occur or may never occur, as death under age or without children, the devise over takes effect, unless controlled by other provisions of the will, according to the ordinary and literal meaning of the words, upon death under the circumstances indicated, whether before or after the death of the testator. Summers v. Smith, 127 Ill. 645, 21 N. E. 191;Smith v. Kimbell, 153 Ill. 368, 38 N. E. 1029;Bradsby v. Wallace, 202 Ill. 239, 66 N. E. 1088;Fifer v. Allen, 228 Ill. 507, 81 N. E. 1105;Ahlfield v. Curtis, 229 Ill. 139, 82 N. E. 276;Carpenter v. Sangamon Loan & Trust Co., 229 Ill. 486, 82 N. E. 418;Britton v. Thornton, 112 U. S. 526, 5 S. Ct. 291, 28 L. Ed. 816; O'Mahoney v. Burdette, L. R. 7 H. L. 388.

The cases of Arnold v. Alden, 173 Ill. 229, 50 N. E. 704,Fishback v. Joesting, 183 Ill. 463, 56 N. E. 62, and Kohtz v. Eldred, 208 Ill. 60, 69 N. E. 900, have sometimes been regarded as inconsistentwith the above rule, but the first two of these cases were discussed and distinguished in Bradsby v. Wallance, supra, and the third in Carpenter v. Sangamon Loan & Trust Co., supra. In Fifer v. Allen, supra, there was a full consideration of the question with reference to the various decisions, and the rule was again announced as it had been previously established and consistently observed. In accordance with this rule, the death of any of the testator's children mentioned in item 3 of the will must refer to death at any time, whether before or after that of the testator. Since the death of any child must be leaving heirs of his body alive or leaving no child or descendants of a deceased child, the language used exhausted all possible contingencies. The estate of each child of the testator must terminate with his life, and is therefore a life estate. King v. King, 215 Ill. 100, 74 N. E. 89;Johnson v. Askey, 190 Ill. 58, 60 N. E. 76;Thomas v. Miller, 161 Ill. 60, 43 N. E. 848;Healy v. Eastlake, 152 Ill. 424, 39 N. E. 260;Furnish v. Rogers, 154 Ill. 569, 39 N. E. 989;Johnson v. Johnson, 98 Ill. 564.

The language of item 3 is substantially the same as that of paragraph 3 of the will in Lachenmyer v. Gehlbach, 266 Ill. 11, 107 N. E. 202, which was as follows:

‘Third. After the death of my said wife all of said property and estate above mentioned and described to go to my children, share and share alike, and shall any of my children die, then the children of such deceased child, should any children be surviving such deceased child, to take the share of the parent so deceased; and should any of my children die leaving no issue, then the share of such deceased child shall be divided equally among my surviving children.’

There was, however, the distinction between that case and this that in the former the devise to the children was preceded by a particular estate to the testator's widow for her life. In such case the rule is that the estate dependent on the death of the previous taker will take effect if the contingency happens at any time during the continuance of the particular estate. In such case death without issue means...