Ewing v. Barnes

• Decision Date: 02 April 1895
• Parties: EWING v. BARNES et al.
• Court: Illinois Supreme Court

156 Ill. 61

40 N.E. 325

EWING

v.BARNES et al.¹

Supreme Court of Illinois.

April 2, 1895.

Appeal from circuit court, Macon county; Edward P. Vail, Judge.

Bill by Edwin A. Ewing against William A. Barnes and others. Defendants obtained a decree. Complainant appeals. Reversed.

Crea & Ewing, W. C. Johns, and J. J. Finn, for appellant.

Buckingham & Schroll and J. C. Hostetler, for appellees.

BAILEY, J.

This was a bill in chancery, brought by Edwin A. Ewing, one of the devisees named in the will of John Rucker, deceased, against the executors, heirs, and other devisees of the testator, praying that the will be construed as vesting in the complainant an absolute estate in fee simple in and to the lands thereby devised to him, and enjoining the defendants from setting up any claims or pretenses of title thereto. The bill, on demurrer, was held to be without equity, and a decree was entered dismissing it, at the complainant's costs. To reverse that decree, the complainant has appealed to this court.

John Rucker died July 19, 1872, leaving a last will and testament, bearing date February 7, 1871. By the first clause of the will, he gave to his wife, Elizabeth Rucker, the use, enjoyment, rents, and profits of all his real estate situate in the city of Decatur, during her natural life; also, the use and control of all his moneys, notes, and other evidence of indebtedness, the principal sums to be kept at interest, the interest only to be used and enjoyed by her for her sole benefit; and he also gave to her absolutely his other personal property, consisting of household goods, reserving, however, sufficient money to pay his debts and funeral expenses. By the second clause, the testator devised to his son, James C. Rucker, certain tracts of land in Macon county, particularly described, ‘to have and to hold unto the said James C. Rucker, and to his heirs and assigns, forever, all the aforesaid real estate,’ with a proviso that if the purchaser to whom the testator had sold one of the tracts so devised, and for which he held the testator's title bond, should pay for the same, the devisee should have the price in lieu of the land itself; and he also gave to James C. Rucker a certain promissory note for $900, secured by a mortgage. By the third clause, he devised to his granddaughter, Arminda J. Eldridge, certain lots in the city of Decatur, ‘to have and to hold the said lastdescribed real estate unto the said Arminda J. Eldridge, and to her forever, subject, however, to the life estate of my wife, Elizabeth, as provided in the first clause of this will.’ By the fourth clause, the testator devised to his great-grandson, Edwin Albert Ewing, certain lots in the city of Decatur, particularly described, ‘to have and to hold all the lastdescribed real estate to the said Edwin Albert Ewing, and to his heirs and assigns, forever,’ provided that the testator's wife should have and hold the same, and have the rents and profits thereof, during her natural life, according to the first clause of the will. He also devised to Edwin Albert Ewing a certain tract of land which he had sold, with a proviso that, in case the purchaser should pay for the same, the price should go to the devisee in lieu of the land; also certain lots in Decatur, upon which the testator held mortgages, with the proviso that, in case of redemption from the mortgages, the redemption money should go to the devisee in lieu of the land; the lots in Decatur, however, to be taken by the devisee subject to the life estate of the testator's widow, ‘and upon her death the title thereof is to vest in the said Edwin Albert Ewing, his heirs and assigns, forever.’ And the fourth clause then proceeds as follows: ‘I hereby give, bequeath, and devise all the residue of my estate, both real and personal, except what has been given to my wife, Elizabeth, upon my death, to my son, James C. Rucker, and my granddaughter, Arminda J. Eldridge, and my great-grandson, Edwin Albert Ewing; my son, James C. Rucker, to take one-half thereof, to him and his heirs, forever, and Arminda J. Eldridge and Edwin Albert Ewing each to take one-fourth thereof, to them and their heirs, forever; and upon the death of my wife, Elizabeth, I give and bequeath to my son, James C. Rucker, the one-half of the estate to be held by her during her natural life, and to said Arminda J. Eldridge and Edwin Albert Ewing each one-fourth part of the estate so to be held by my wife during her natural life.’ The remaining clause of the will, upon the proper construction of which the present controversy mainly depends, is as follows: ‘In case of the death of Edwin Albert Ewing without heirs of his body, all the property bequeathed and devised to him in this will is to go to and vest in, upon his death without issue, James C. Rucker and Arminda J. Eldridge, said James C. Rucker and his heirs to take two-thirds thereof, and the said Arminda J. Eldridge and her heirs to take the one-third thereof; and all said property, both real and personal, is given to him upon that express condition, and upon the further condition that the executors of this will and their successors in office shall have the control of all the property, both real and personal, given to said Edwin A. Ewing, until he shall arrive at the age of twenty-five years, when the title shall vest in him absolutely; and, until the age of twenty-five years, he shall enjoy the interest and all the rents and profits of said property. I hereby appoint James C. Rucker and Edwin R. Eldridge executors of this, my last will and testament.’

The bill alleges that Elizabeth Rucker, the widow of the testator, died November 5, 1882, and that James C. Rucker, the testator's son, and one of the devisees named in the will, died, intestate, April 5, 1873, leaving the complainant, who is his grandson, one of his heirs at law; that the complainant is now over 25 years of age, and is married, but has no children; that in 1883 a bill was filed for the partition of the real estate owned by James C. Rucker at the time of his death; and that in that proceeding a decree was entered under which the lands sought to be partitioned were sold, and the share of the proceeds thereof coming to the complainant was paid over to certain trustees appointed by the court to take charge of and control all the interests of the complainantin the lands devised by the will of John Rucker, subject to the conditions in the will expressed; but, that, since the complainant arrived at the age of 25 years, the trustees have settled with him for the rents, issues, and profits of the lands controlled by...