Griffiths v. Griffiths

• Decision Date: 25 October 1902
• Parties: GRIFFITHS v. GRIFFITHS et al.
• Court: Illinois Supreme Court

198 Ill. 632

64 N.E. 1069

GRIFFITHS

v.GRIFFITHS et al.

Supreme Court of Illinois.

Oct. 25, 1902.

Appeal from superior court, Cook county; Axel Chytraus, Judge.

Bill by Ellen Griffiths against Edward Griffiths and others to remove a cloud on title. From a judgment dismissing the bill, plaintiff appeals. Affirmed.

David Fales, for appellant.

Moran, Mayer & Meyer, for appellees Edward and Robert Griffiths.

WILKIN, J.

This proceeding in chancery was begun by Ellen Griffiths, widow of William Griffiths, deceased, in the superior court of Cook county, against Edward Griffiths and others, to construe the will of her husband, William Griffiths, who died April 18, 1895, and to remove a cloud upon her title to certain real estate in Chicago which had been devised to her by that will. The will, after providing for the payment of certain debts and legacies, gives all the personal property to the wife, ‘for her own and sole use forever,’ and then provides:

‘Fifth. I give, devise, and bequeath to my said wife, Ellen Griffiths, all my real estate, with improvements thereon, situate in the county of Cook and state of Illinois, and described as follows, to wit: [describing it.]

‘Sixth. After the death of my said wife, Ellen Griffiths, and after all my and her just debts have been fully paid and discharged, it is my will, and I do hereby direct, that all the residue and remainder of said estate shall be divided in equal shares, share and share alike, excepting, however, such donations as my wife shall deem fit and proper to make, between my brethren, Edward Griffiths, Thomas Griffiths, and Robert Griffiths; and in case of death of my said brethren before the decease of my said wife, Ellen Griffiths, then and in that case their respective share or shares shall go to their respective legal heirs and next of kin, in equal shares.’

The bill alleges that by said section 5 complainant was given an estate in fee simple, and that she is entitledto ‘sell, convey, and dispose thereof in fee simple, and is entitled to use and dispose of the proceeds of any sale thereof, absolute and without limitation’; that the devisees mentioned in section 6 claim to be the owners of the real estate, subject only to the life estate of complainant, and that by reason of such claim a cloud exists upon complainant's title, preventing her from disposing of the property; that at the time of her husband's death a part of the property was incumbered by a mortgage which is now past due, and that the holder thereof is threatening to foreclose; that by reason of the claim of the defendants she is unable to extend the time of payment, and the property is therefore in danger of being lost. The prayer is that the will be construed to vest the title absolutely in complainant. By an amendment to her bill she asks that the claim of defendants be set aside as a cloud upon her title. Defendants demurred to the bill generally, and upon the hearing it was dismissed.

The complainant claims nothing, in her bill, under the language in the sixth clause, ‘excepting, however, such donations as my wife shall deem fit and proper to make,’ nor under the language, ‘after all my and her just debts have been fully paid and discharged.’ Therefore that language need only be considered in the decision of the case for the purpose of arriving at a proper construction of the will.

All will agree that the language used in section 5 could not, under any consideration, have vested the fee to the real estate in the wife under the common law. It is only by virtue of the provisions of section 13 of chapter 30 of our statutes that she could, under that clause, claim the absolute, fee-simple title thereto. But that statute, often repeated in our decisions, is: ‘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 limitedby express words, or do not appear to have been granted, conveyed or devised by construction or operation of law.’ Starr & C. Ann. St. 1896, p. 925. It seems too clear for argument that by the sixth clause a less estate than a fee-simple title of inheritance is devised, both by express words and by construction, and operation of law. That clause expressly says: ‘After the death of my said wife, Ellen Griffiths, * * * it is my will, and I do hereby direct, that all the residue and remainder of said estate shall be divided in equal shares,’ etc. That these two clauses together...