Green v. Hewitt

• Decision Date: 26 November 1880
• Citation: 1880 WL 10170,37 Am.Rep. 102,97 Ill. 113
• Parties: BENJAMIN GREEN et al.v.AMELIA HEWITT et al.
• Court: Illinois Supreme Court

97 Ill. 113

1880 WL 10170 (Ill.)

37 Am.Rep. 102

BENJAMIN GREEN et al.

v.AMELIA HEWITT et al.

Supreme Court of Illinois.

Filed at Springfield Nov. 26, 1880.

WRIT OF ERROR to the Circuit Court of Scott county; the Hon. CYRUS EPLER, Judge, presiding.

This was a bill in chancery, filed in the Scott county circuit court on the 12th day of December, 1878, by plaintiffs in error, against Amelia Hewitt, Ann Beedham and Sarah Royal, for the partition of certain lands. The bill alleges that Elizabeth Green died intestate on the 14th of November, 1878, leaving her husband, Benjamin Green, and her sisters, Amelia Hewitt, Ann Beedham and Sarah Royal; that at the time of her death Elizabeth Green was seized in fee of the premises mentioned in the bill; that she derived title to the same through the will of William C. Thompson, deceased, who was her former husband; that after his decease she married the said Benjamin Green; that upon the decease of the said Elizabeth Green, without issue, the said Benjamin Green, as surviving husband, became entitled to one-half of said premises, and her surviving three sisters to one-sixth respectively. By an amendment to the bill it was further alleged that the said William C. Thompson, at the time of his death, left him surviving his widow, Elizabeth Thompson, and Mary Thompson, his only daughter; that after her father's death the said Mary intermarried with Henry Abbott, by whom she had one child, and soon thereafter died, leaving her infant child and her husband, its father, her surviving; that the child survived its mother but a short time, when it died, leaving its father, the said Henry, as its only heir; that after the death of the said Mary Abbott, and her said infant child, the said Elizabeth Thompson was married to the said Benjamin Green, and remained his wife up to the time of her death; that said Abbott, husband of the said Mary Abbott, deceased, and father of her said child, still survives them.

A copy of the will of the said William C. Thompson was annexed to and by reference made a part of the bill.

At the April term, 1879, Henry Abbott, upon his own petition, was admitted without objection as a party defendant to the bill, and thereupon filed a demurrer to the same.

At the October term, 1879, the court, upon argument and due consideration, sustained the demurrer to the bill, and complainants electing to stand by their bill, a decree was thereupon rendered dismissing the same. The defendants being dissatisfied with that decree, have brought the record to this court, and assigned for error the sustaining of the demurrer to the bill.

Mr. OWEN P. THOMPSON, and Mr. JOHN G. HENDERSON, for the plaintiffs in error:

The first clause in the devise, standing alone, in express terms gives to Elizabeth Thompson an absolute fee simple title in the farm. Brownfield v. Wilson, 78 Ill. 467.

Taking the words, “the whole, or whatever remains,” in the second clause, as relating to both real and personal property devised to the wife, they are wholly inconsistent with any estate less than a fee. These words imply an absolute right of disposal in the wife, which carries with it the fee. To show that this power of disposal may be given impliedly, and that the idea of an unconsumed residue is not countenanced, we refer to the following cases: Ide v. Ide, 5 Mass. 500; Jackson v. Bull, 10 Johns. 19; Jackson v. Robbins, 16 Id. 537; King's Heirs v. King's Admrs. 12 Ohio, 390; McLean v. McDonald, 2 Barb. 534; Olney v. Hall, 21 Pick. 311; Helmer v. Shoemaker, 22 Wend. 137.

Mr. H. CASE, and Mr. J. M. RIGGS, for the defendants in error:

In construing a will, in case of doubt all its parts should be considered together, and if possible give every clause and provision effect according to the true intention of the testator. Ragland v. Markillie, 77 Ill. 100.

In Siegwald v. Siegwald, 37 Ill. 430, the language of the will was: “I give and bequeath to my beloved wife, Antonia, all my real and personal estate, wherever situate, in fee simple absolute forever; that is to say, that my wife shall have all the benefits thereof until the expiration of her life, at which time my son, Anton, shall be the only heir of my real or personal estate, what may be left.” Held, that the widow took only a life estate in the land with a power of sale, with remainder over to the son. See, also, Brownfield v. Wilson, 78 Ill. 470; Baker v. Copenhagen, 15 Id. 103.

A contingent remainder is an estate limited so as to depend on an event or condition which is dubious and uncertain, and may never happen, or be performed; while a vested remainder is an estate where there is an immediate right of present enjoyment, or a present fixed right of future enjoyment. 4 Kent's Com. 202, 206.

In this case the fee vested in the daughter, subject to the widowhood estate of the mother, and upon the death of the daughter it descended to her child, and upon its death, being the only child, the fee vested in its father.

Mr. JUSTICE MULKEY delivered the opinion of the Court:

The whole controversy in this case turns upon the construction to be given to the second clause of the will of Willian C. Thompson...