Duffield v. Duffield

• Decision Date: 22 April 1915
• Docket Number: No. 9659.,9659.
• Parties: DUFFIELD et al. v. DUFFIELD.
• Court: Illinois Supreme Court

268 Ill. 29

108 N.E. 673

DUFFIELD et al.

v.DUFFIELD.

No. 9659.

Supreme Court of Illinois.

April 22, 1915.

Appeal from Circuit Court, Pike County; Albert Akers, Judge.

Suit by William F. Duffield and another against Elizabeth L. Duffield. From a decree granting relief to complainants, defendant appeals. Reversed and remanded, with directions.

Anderson & Matthews, of Pittsfield, for appellant.

Williams & Williams, of Pittsfield, for appellees.

CARTWRIGHT, C. J.

James M. Duffield owned lands in Pike county and had three sons-Henry T. Duffield, John J. Duffield, and William F. Duffield. On March 28, 1894, he divided the lands among his sons and made deeds to them severally, which were identical except as to the name of the grantee and the description of the lands, conveying 80 acres to Henry T. Duffield, 120 acres to John J. Duffield, and the same number of acres to William F. Duffield. The deed to Henry T. Duffield was as follows:

‘This indenture, made this 28th day of March, A. D. 1894, between James M. Duffield (a widower), of the county of Pike and state of Illinois, grantor, and Henry T. Duffield (a son of said grantor) and the heirs of his body, grantee, witnesseth:

‘That the said grantor, in consideration of natural love and affection and the conditions hereinafter stated, conditionally grants, bargains, sells and conveys unto the said grantee the following described real estate, to wit: [Describing it.]

‘First, that said grantee pay to said grantor on the first day of March, A. D. 1895, the sum of $120, and pay to such grantor a like sum of money at the expiration of each year thereafter during the natural life of said grantor, and also that said grantee pay all taxes assessed against said lands ten days before the sale of said lands for delinquent taxes in Pike county each year after the date of this conveyance, during the natural life of the grantor. The said grantee shall farm said lands in a good and husbandlike manner during the natural life of said grantor, and the said granteeby accepting this deed accepts the conditions herein imposed and consents and agrees to perform the conditions herein contained, and that upon a failure so to do will quit and surrender up the possession of said lands to said grantor. The said grantor further covenants that if the grantee herein shall comply with the conditions herein named, then at the death of said grantor the said conditional grant, bargain and sale herein shall and will become an unconditional and absolute conveyance of said lands. If the said conditions providing for the annual payments and for taxes are not complied with, then and in such case six months after demand shall have been made by said grantor (said demand to be in writing), and because of such failure, the said grantor shall have the unconditional right to declare this conveyance null and void and may re-enter said real estate and premises and take possession thereof, including the release of homestead and exemption rights.’

Henry T. Duffield took possession of the lands described in the deed to him and remained in possession until the death of his father, which occurred on March 3, 1896, and the deed, by its terms, then became absolute. He continued in possession of the lands until his death, on December 14, 1913. He never had any children born to him, and left a last will and testament giving all his property, real and personal, to his widow, Elizabeth L. Duffield, who was made the executrix of his will. The will was admitted to probate, and Elizabeth L. Duffield qualified as executrix. On January 27, 1914, William F. Duffield and John J. Duffield filed their bill in this case in the circuit court of Pike county praying for partition of the lands described in said deed. Elizabeth L. Duffield was made a defendant in her own right and as executrix of the will. She did not answer in her capacity as executrix, and the bill was taken as confessed by her as executrix; but she answered in her own right, claiming to be the owner in fee of the lands. The issue was referred to the master in chancery to take and report the evidence, which he did. The chancellor, upon a consideration of the evidence so taken, entered a decree finding the facts as above stated, and finding, as matters of law, that by virtue of the deed Henry T. Duffield became vested with a life estate until the death of his father, James M. Duffield; that upon the death of his father he and the complainants, William F. Duffield and John J. Duffield, became seised, as heirs at law of their father, of an undivided one-third part, subject to the life estate of Henry T. Duffield; that, on the termination of the life estate of Henry T. Duffield by his death, his one-third interest passed to the defendant, Elizabeth L. Duffield, by virtue of his last will and testament; and that the complainants and defendant thereby became seised in fee, as tenants in common, each of an undivided one-third part of the lands. Partition was decreed accordingly.

The theory of counsel for the complainants, adopted by the chancellor, was that the deed gave a life estate to Henry T. Duffield with a contingent remainder to the heirs of his body, and a reversion in fee remaining in the grantor until his death and then descending to his heirs, and there being no heirs of the body of Henry T. Duffield, and the contingency being thereby forever removed, the complainants and defendant became vested with a fee-simple title to the lands.

The decree can only be affirmed if the deed was operative, as a matter of law, to convey a life estate to Henry T. Duffield with a remainder to the heirs of his body. If it had that effect, the remainder was contingent, because he had no child, and, the whole estate not being granted, a reversion remained in the grantor expectant upon the failure of issue, and as there were no heirs of his body to take the remainder it descended to his heirs at law. The rule to be applied was stated in Lehndorf v. Cope, 122 Ill. 317, 13 N. E. 505, that the nature and quantity of the interest granted by a deed are always to be ascertained by the instrument itself ane are to be determined as a matter of law, and the intention is that which is apparent and manifest in the instrument itself. That rule had been previously adopted in Baulos v. Ash, 19 Ill. 187, where the court found it probable that the object of the deed was to vest title in Horace F. Ash in trust, to the use of Amanda V. Ash during her life with remainder to the use of her children, but if that was the purpose it failed for want of a conveyance having that legal effect. The facts in that case showed conclusively that the intention was what the court thought probable, but the deed was construed according to the legal effect of the words employed in it. In the case of a will that intention might have been enforced, because greater latitude is given in the construction of wills than in deeds, and the court, looking to the whole will, may find and effectuate the intent. Butler v. Huestis, 68 Ill. 594, 18 Am. Rep. 589. The rule applied to wills, although for some time subject to must protest, his become firmly established in the law. Wellace v. Noland, 246 Ill. 535, 92 N. E. 956,138 Am. St. Rep. 247;Barnett v. Barnett, 117 Md. 265, 83 Atl. 160, Ann. Cas. 1913E, 1284. In deeds, however, grantors are presumed to intend what their words import and the same license of construction permitted in the case of wills is not allowed.

The power to limit a future estate by deed has been recognized. Abbott v. Abbott, 189 Ill. 488, 59 N. E. 958,82 Am. St. Rep. 470;Stoller v. Doyle, 257 Ill. 369, 100 N. E. 959. But in this deed there are no words of futurity, and it purports to grant a present estate in possession to a certain grantee upon conditions subsequent which are of no importance now, and the grantee to whom such present estate is granted is named as Henry T. Duffield and the heirs of his body. The deed does not purport to convey a life estate to Henry T. Duffield with remainder to the heirs of his body, which by the rule in Shelley's Case would have given him an estate tail, but which the sixth section of our Conveyance Act would turn back into a life estate with remainder in fee to the heirs of his body. That section provides that, where by the common law any person or persons might become seised in fee tail, such person or persons, instead of being or becoming seised in fee tail, shall be deemed and adjudged to be and become seised for his or her natural life, only, and the remainder shall pass in fee simple absolute to the person or persons to whom the estate tail would on the death of the first grantee, devisee, or donee in tail first pass by virtue of the devise, gift, grant, or conveyance. By that section estates in fee tail were abolished, and the only use now made of the rule concerning such estates is for the purpose of determining whether a devisee, grantee, or donee would have become seised in fee tail at the common law. As the deed did not, in terms, purport to grant a future estate, the question of construction involved is whether it granted to Henry T. Duffield an estate limited to a particular class of heirs, which would have been a fee tail at the common law and which our statute on entails converted into an estate for life with remainder to his bodily heirs, contingent upon birth of issue.

In construing a deed the portions operative to define and limit the estate granted are the granting clause and the habendum. Morton v. Babb, 251 Ill. 488, 96 N. E. 279. In this deed there was no habendum limiting or defining the estate granted, and neither were there any words in the granting clause importing a conveyance to Henry T. Duffield limited to the heirs of his body. It named him and the heirs of his body as the grantee of the estate conveyed and purported to convey to said grantee an immediate estate in possession. The requisites of such a deed are that there be persons...