Ebey v. Adams

• Decision Date: 01 November 1890
• Citation: 135 Ill. 80,25 N.E. 1013
• Parties: EBEY et al. v. ADAMS et al.
• Court: Illinois Supreme Court

135 Ill. 80

25 N.E. 1013

EBEY et al.

v.ADAMS et al.¹

Supreme Court of Illinois.

Nov. 1, 1890.

Error to circuit court, Scott county; GEORGE W. HERDMAN, Judge.

Bill by John P. Adams and Willis G. Adams, executors of Absalom Adams, deceased, against George Ebey, Adam McLaughlin, Emily McLaughlin, Howard B. M. Peak, administrators of the estate of Minerva Adams, deceased, Martha F. McGlassen, Robert McGlassen, Mary A. McGlassen, William C. Lewis, Francis M. McGlassen, Cora D. Savage, Obanion Savage, Charles C. Lewis, Ora E. Lewis, Florence D. Lewis, Daniel Adams, Anna Adams, Isora Adams, Ann Shanklin and Ezekiel Flynn, to construe the will of complainants' testator. Defendants George Ebey and Adam McLaughlin, who claimed certain land formerly belonging to the testator as grantees of testator's daughter Almira Lewis, deceased, bring error.Morrison & Whitlock, for plaintiffs in error.

J. M. Riggs and J. C. Bowman, for defendants in error.

SHOPE, C. J.

The only question presented by this record is, did Elmira Lewis, daughter of the testator, take a vested interest in the lands and estate of the testator, or in the proceeds thereof? If she did, it is not questioned that her interest therein passed, by her conveyances and transfers thereof, to Ebey and McLaughlin, and her heirs would be estopped by her deeds from asserting the title thereto; and it would follow that the decree of the circuit court is erroneous. If she did not take a vested interest under her father's will, then it is clear that her children are entitled under the will, and Ebey and McLaughlin took nothing by the conveyance from her, and the decree of the trial court should be affirmed. By the second clause of the will, the entire estate, real and personal, after the payment of debts, was devised to the widow of the testator for her life, or widowhood. She having died without again marrying, no significance attaches to that provision of the will, and it will be unnecessary to notice the effect which might have been produced by her remarrying. The third clause of the will provides that ‘upon the death or remarriage of my wife, Minerva, it is my will, and I do so direct, that all my estate, real and personal, shall be sold upon such terms as shall appear best and most judicious to my executors, and from the proceeds they will pay to Minerva Adams, the daughter of Daniel Adams, my son, deceased, if of age, (if not, to her guardian,) the sum of one thousand dollars; and to Daniel Adams, the son of my son James Adams, deceased, if of age, (if not, to his guardian,) the like sum of one thousand dollars; and the balance of the proceeds of my estate my executors are hereby directed to distribute among my children, or their heirs, to-wit, [naming his six living children,] share and share alike, with this exception: My executors will pay or deliver to Elmira Lewis and Mary A. McGlassen one thousand dollars each, more than my other children.’ It was then further provided that if either of the grandchildren named died without issue before ‘they are of age,’ the ‘one thousand dollars' directed to be paid them, or the one so dying, ‘shall be distributed equally among my above-named children.’ There was here no devise of the land, or of any interest in land, either to the children or grandchildren of the testator. Land devised to be sold, and the proceeds distributed, is a devise of the proceeds, and not of the land. Baker v. Copenbarger, 15 Ill. 103;Jennings v. Smith, 29 Ill. 122;Rankin v. Rankin, 36 Ill. 298;In re Corrington, 124 Ill. 363, 16 N. E. Rep. 252. This conclusion is not at all affected, as seems to be supposed by counsel, by the fact that the legal estate is not, in terms, devised to the executors. It can make no difference whether it is held to be devised by implication to the executors, as necessary to enable them to execute the trust, or was left by the will to descend to the heir at law. The general principle applicable to the execution of trusts of this character is that the trustee will take ‘exactly that quantity of interest which the purposes of the trust requires.’ If the fee is required, the fee will be taken. If a less estate will suffice, a less estate only will be vested. 2 Jarm. Wills, 305, 306. But, as was said in the Baker Case, supra: ‘The legal title to the land is held in trust for the purposes specified in the will, whether the title is left by the will to descend to the heir by operation of law, of by the will it is vested in a trustee; nor does it make any difference in this respect that the legal title descends to the devisee, to whom the bequest is to be paid in money when the land is sold.’ In either event, the title would be divested upon the execution of the power of sale. It is undoubtedly the rule, as suggested by counsel, that where land is devised to be sold, and the proceeds distributed, the beneficiaries of the fund thus to be raised may elect to take the land, but each devisee has a separate right to insist upon the provisions made by the will for his benefit; hence, as said in the case last mentioned, such election can only be effective when it is the act of all the distributees of the fund. There has been no such election, if indeed there could be, in this case, and the devise is therefore to be treated as a devise of money, to be raised by a sale of all the testator's estate, after the termination of the particular estate created in the testator's widow.

Did the testator intend, as a condition to his children taking under his will, that they should survive the time appointed for the payment of the legacy? The inquiry always is, what did the testator intend? And the answer is to be sought for and found in the provisions of the will-taking into consideration all its parts, and giving to the language the sense in which it was used by the testator. For this purpose, the court will look to every provision of the will, the better to understand the plan of distribution adopted, and the purpose of the testator in making the particular provision under consideration. The direction, it will be observed, is to distribute the residue of the proceeds of the testator's estate among his children, or their heirs. The specific devises to the two grandchildren are first to be paid out of the proceeds of the sale of the testator's property, which is directed to be made after the termination of the intermediate estate. In determining whether the testator intended, as a condition to the vesting of the legacy in his children, that they should survive the time of distribution, it would seem that some indication may be found in the language employed in respect of such specific legacies. The direction is to pay to the grandchildren, if of age; if not, to their guardian. In a subsequent portion of the will it is provided that, in the event of either of them dying without issue before they are of age, then the portion so bequeathed to them is to fall into the residue, and be subject of the general order of distribution. The testator may control his estate until the time of payment arrives, or distribution thereof is made. It is apparent that the testator must have contemplated that one or both of the grandchildren might die before some period in the testator's mind, other than their arriving at age, or having issue, for it is expressly provided that the legacy to them is to be paid them personally, if of age, and, if they are not of ago, to their guardian. When was such payment to be made? Manifestly, after the sale by the executor of the testator's estate; and it would seem that if the grandchildren died before that period, under age, and without issue, their...