Gahan v. Golden

• Decision Date: 23 June 1928
• Docket Number: No. 17734.,17734.
• Citation: 162 N.E. 164,330 Ill. 624
• Parties: GAHAN v. GOLDEN.
• Court: Illinois Supreme Court

330 Ill. 624

162 N.E. 164

GAHAN

v.GOLDEN.

No. 17734.

Supreme Court of Illinois.

June 23, 1928.

Suit by Mery L. Gahan against Flora B. Golden and others. Decree for complainant, and defendant named appeals.

Reversed and remanded, with directions.Appeal from Circuit Court, Clay County; F. R. Dove, Judge.

Smith & Smith, of Flora, for appellant.

Harold S. Williams, of Taylorville (Walter M. Provine, of Taylorville, of counsel), for appellee.

DUNCAN, J.

Allen E. Golden, a resident of Clay county, died testate on July 31, 1918, seized of a large amount of real estate and possessed of several thousand dollars' worth of personal property. He left surviving him, as his only heirs at law, Flora B. Golden, his widow, and his two children, Marjorie M. Golden, of the age of 11 years, and Ruth E. Gahan, of the age of 21 years. His will was admitted to probate by the county court of Clay county and his widow was appointed and qualified as executrix. She administered the estate and paid the debts and legacies, and was by order of the county court discharged and the estate declared closed. By the second clause of his will, after providing for the payment of his debts and funeral expenses, Golden devised to his daughter Ruth a store building in the town of Flora, Ill., and bequeathed to her $1,000 of insurance covered by a policy in the Modern Woodmen of America. By the third clause of his will he bequeathed to his wife, to be held in trust for his daughter Marjorie until she reached the age of 18 years, 20 shares of stock of the First National Bank of Flora and $1,000 of insurance covered by a policy in the AEtna life Insurance Company, which were to be kept invested and the interest accumulated until Marjorie reached the age aforesaid, at which time they were to become hers absolutely and the trust dissolved. The fourth and last clauses of the will provide as follows:

‘Fourth-I give, devise and bequeath all the rest, residue and remainder of my estate, both real, personal or mixed, to my beloved wife Flora B. Golden, desiring of her only that she give to Marjorie an education in music such as was given Ruth.

‘The residue of this my estate, at the death of my wife Flora B. Golden to go to my two daughters Ruth E. Gahan and Marjorie M. Golden, share and share alike.

‘Lastly, I make, constitute and appoint Flora B. Golden to be executrix of this, my last will and testament, hereby revoking all former wills by me made, and ask that she be permitted to serve as executrix without the usual bond.’

It is disclosed by the pleadings and the evidence in the record that Golden was 60 years of age at the time of his death. He was a successful business man and trader and had accumulated approximately 1,000 acres of land in Clay county. This land was in small tracts, situated in three different townships, and was in the main unimproved and unproductive land, and the majority of it is referred to in the evidence as ‘thin’ or ‘trading’ land. He was also the owner of two business properties and 26 or more pieces of city property in Flora, some of which were vecant lots, and two of the lots were occupied by him as his homestead at the time of his death. He was possessed of personal property, consisting of cash, notes, mortgages, bonds, bank stock, judgments, tax sale certificates, cattle, mules, farming implements and other chattels, which, after the payment of his debts, funeral expenses, the specific legacies under his will, and the costs of the administration of his estate, amounted to $14,459.04. His will was executed a few days before his death, while he was in a hospital in St. Louis, Mo., awaiting an operation, which terminated fatally.

The entire will, with the exception of the signatures of the testator and the attesting witnesses and the concluding sentence in the fourth clause, was either printed or typewritten; the typewritten part having been inserted in the blank spaces of a printed form. The original will was certified and transmitted with the record for our inspection. The concluding sentence of the fourth clause was written with pen and ink, and is as follows:

‘The residue of this my estate, at the death of my wife Flora B. Golden to go to my two daughters Ruth C. Gahan and Marjorie M. Golden, share and share alike.’

It is apparent, from an inspection of the original will, that the pen and ink sentence was inserted in the will after it had been first drafted with a typewriter, and it is in the handwriting of the attesting witness, J. O. Pride, an attorney whom the testator had employed to prepare his will.

At the time the will was executed the testator's daughter Ruth was married to appellee, Meryl L. Gahan. She had been given an education by her parents in music, voice culture, and harmony, and had been given three diplomas, one from the Kroeger School of Music of St. Louis and two from Forest Park University of St. Louis. She died intestate in 1920, leaving her surviving her husband, Flora B. Golden, her mother, and Marjorie M. Golden, her sister, as her only heirs at law. After the death of Ruth her husband filed his bill in the circuit court of Clay county against Flora B. and Marjorie M. Golden and others, alleging that by the last will and testament of Allen E. Golden his property, both real and personal, except that specifically devised and bequeathed to his two daughters under the second and third clauses of his will, vested in fee simple and became the absolute property of his two daughters at the death of the testator, subject only to a life estate therein of his widow, and that on the death of Ruth her share of the property devised and bequeathed to her by the will descendedto her heirs at law, of whom her husband is one. The bill prayed for partition of the real estate between appellee, Flora, and Marjorie, and that Flora be required to state an account of all items of personal property received by her from the estate of the testator in which she has a life estate and that she exhibit such property to the court, and, if any such personal property has been converted to her personal use, the amount thereof be determined, and that she be required to account for the same.

Flora and Marjorie answered the bill and denied that the appellee had any interest in any of the real estate or personal property of which the testator died seized or possessed, and averred that all of the testator's property, both real and personal, not specifically devised under the second and third clauses of the will, became vested in Flora under the terms of the fourth clause of the will, in fee simple if real estate, and as her absolute property if personalty. All of the other defendants, who are interested as tenants or mortgagees or who hold other similar interests, adopted the answer of Flora and Marjorie as their answer to the bill. Replications were filed to the answers, and there was a hearing upon the issues formed by the court in open court.

There is virtually no dispute as to any of the facts in this case. The store building specifically willed to Ruth E. Gahan was disposed of and the proceeds thereof divided among her husband, mother, and sister, and the personal property bequeathed to her descended to her husband. No question arises as to the property bequeathed to Marjorie M. Golden. It is therefore to be understood that all questions arising on this appeal relate solely to the residue of the property, real and personal, devised and bequeathed by the fourth clause of the will and described in the bill for partition.

Appellant contends that, under the proper construction of the fourth clause of the will, she is entitled to all of the real estate in fee simple devised by the testator by the fourth clause, and that she is the sole and absolute owner of all of the personal property thereby bequeathed. The court found that the testator, at the time of his decease, occupied two of the lots in Flora as his homestead, and that Flora B. Golden has continuously resided on said lots and occupied the same as a homestead, and is now entitled to a right of homestead therein, and that she is also entitled to a life estate in all the lands devised by that clause; that on the death of the testator the remainder in fee of the land so devised vested in Ruth E. Gahan and Marjorie M. Golden in equal shares, as tenants in common, subject to the rights of Flora; that upon the death of Ruth her share in such real estate descended to her husband, her mother, and her sister as her only heirs; that appellee is entitled to an undivided one-fourth or three-twelfths, Flora to an undivided one-sixth or two-twelfths, and Marjorie to an undivided seven-twelfths of such remainder in fee, subject to the life estate and homestead right of Flora. The court further found that the share of appellee in the real estate is incumbered by a first mortgage given by him and Faun Gahan, his wife, to Lee T. Nichold for $1,500, and by a second mortgage given by him and his wife to A. J. Gahan in the sum of $2,500, which mortgages are liens on his share, and that no other persons have any interest in the real estate devised by the fourth clause of the will and described in the bill for partition. It was further ordered and decreed by the court that a division and partition of the premises be made among the parties in accordance with said findings, and commissioners were appointed to make such division and partition.

[1][2][3][4][5] Section 13 of our Conveyance Act (Smith-Hurd Rev. St. 1927, c. 30, § 12) provides that:

‘Every estate in lands which shall be granted, conveyed or devised, although other words heretofore necessary to transfer an estate of inheritance be not added, shall be deemed a fee simple estate of inheritance, if a less estate be not limited by express words, or do not appear to have been granted, conveyed or devised by construction or operation of law.’

Under that section of the statute, appellant would, under the first sentence of the fourth ...