Haight v. Royce

• Decision Date: 22 June 1916
• Docket Number: No. 10580.,10580.
• Citation: 274 Ill. 162,113 N.E. 71
• Parties: HAIGHT v. ROYCE et al.
• Court: Illinois Supreme Court

274 Ill. 162

113 N.E. 71

HAIGHT

v.ROYCE et al.

No. 10580.

Supreme Court of Illinois.

June 22, 1916.

Appeal from Circuit Court, Du Page County; Mazzini Slusser, Judge.

Bill to construe the will of Adela Hobson, brought by Hally Haight, Jr., by his next friend, against Emma Royce and others. From the decree rendered, complainant appeals. Affirmed.Childs & Childs, of Chicago, for appellant.

Fischer & Fischer, of Chicago, for appellee Elvira Haight.

William S. Hefferan, of Chicago, and S. L. Rathje, of Wheaton, for appellee Ellen Crossman.

J. C. Murphy and E. L. Lyon, both of Aurora, for appellee Albert Page.

CRAIG, C. J.

Appellant, Hally Haight, Jr., by his next friend, filed his bill in the circuit court of Du Page county, praying that the will of Adela Hobson be construed as to the rights of all parties in interest, and especially that his rights be determined and fixed. The last will and testament of Adela Hobson consisted of a will made June 5, 1885, and a codicil thereto dated September 10, 1894. The will, omitting the attesting clause, is as follows:

‘I, Adela Hobson, of the Village of Naperville, Du Page county, being of the age of thirty-nine years, do hereby make and declare this to be my last will and testament, as follows:

‘First-I direct that my funeral expenses and all my just debts be paid.

‘Second-I give and devise to my nephew, Hally Haight, in fee simple, the land which was set off to me at the division of my father's estate, and which consists of thirty-five acres of prairie land and ten acres of cleared land, marked as lots No. 5 and 6 on the map attached to the report of the commissioners who divided the estate of Baley Hobson.

‘Third-I also give and devise to my nephew, Hally Haight, in fee simple, all my title and interest in the homestead property formerly held by my mother as her dower in the estate of my deceased father, consisting of one share in the said homestead property inherited by me and one share purchased by me from the heirs of my deceased brother, Merritt S. Hobson.

‘Fourth-I give and devise to my nephew, Hally Haight, in fee simple, my house and lots on Washington street, in the village of Naperville, Du Page county, Illinois.

‘Fifth-I also give, devise and bequeath to my nephew, Hally Haight, all the other property, including household furniture, notes, accounts, cash or real estate not before mentioned in this my will, which I may own at the time of my death.

‘Sixth-The above mentioned legacies to my nephew, Hally Haight, are, however, left to him on this condition: that he pay, at the end of each year, to my sister, Charlotte, wife of David M. Haight, of Oswego, Kendall county, Illinois, during her lifetime and for her use and benefit, one-half of the rents and profits annually derived by him from the properties devised and bequeathed to him as above.

‘Seventh-If my nephew, Hally Haight, shall die before either myself or my sister, Charlotte Haight, then it is my will that my sister, Charlotte Haight, shall take in fee simple and as her absolute property all the lands and properties given and devised in the above legacies to my nephew, Hally Haight.

‘Eighth-I hereby appoint my nephew, Hally Haight, executor of this my last will and testament, and give him full control and authority over everything belonging to my estate the same as I myself had during my lifetime. And if my nephew, Hally Haight, shall die before either myself or my sister, Charlotte Haight, then my sister, Charlotte Haight, shall be executor of this my last will and testament, with the same control and authority over everything belonging to my estate which I myself had during my lifetime.

‘Ninth-It will be understood by my nephew, Hally Haight, and my sister, Charlotte Haight, that should any of my near relatives become so reduced in circumstances as to need assistance, then it is my wish that they assist such relatives in such ways as my said nephew and sister shall judge to be the best.

‘Tenth-I hereby revoke all former wills and testaments made by me.

‘In witness of all which I have hereunto set my hands and seal this fifth day of June, A. D. 1885.

Adela Hobson. [Seal.]'

The codicil is in the following words and figures:

‘I, Adela Hobson, of the city of Naperville, Du Page county, Illinois, of the age of forty-eight years, and being of sound mind and memory, do hereby make, publish and declare this my codicil to my will executed by me on the fifth day of June, A. D. 1885, hereby making this codicil a part of my said will, as follows:

‘First-I hereby re-affirm and re-declare my said will in every particular except as the same is modified by this my codicil.

‘Second-I hereby give and bequeath to my niece, Elizabeth Haight, the sum of $300, lawful money of the United States, to be paid to her by my executor within six months after my death.

‘Third-I hereby give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, which is not otherwise disposed of in my said will and in this codicil, to my nephew, Hally Haight, and to his heirs, in fee simple and forever.

‘In witness of all which I, the said Adela Hobson, have hereto set my hand and seal the tenth day of September, A. D. 1894.

‘Adela Hobson. [Seal.]’

The defendants to the bill were the heirs at law of the testatrix and the administrator of her estate cum testamento annexo, and certain of them (appellees here) answered, denying that appellant, Hally Haight, Jr., had any rights in the estate of said Adela Hobson, averring that the devises, bequests, and legacies of said will had all lapsed because of the death of all the legatees and devisees prior to the death of Adela Hobson, and that the property should descend as intestate estate to the heirs at law, and asking that a decree be entered in their favor. The other defendants were defaulted. Replications were filed to the answers and the case was heard upon the issues as joined.

It appears that Adela Hobson died November 19, 1912, leaving said will and codicil, which were probated. She was never married, had no children, and left her surviving, as her only heirs and next of kin, two sisters and the descendants of certain deceased brothers and sisters. Hally Haight, named in said will, died testate May 3, 1911, and his will was duly probated. He left him surviving a son, Hally Haight, Jr., the appellant. Charlotte Haight, named in the will, died February 4, 1911. Elizabeth Haight, also named in the will, died June 21, 1904.

The court by its decree found, in accordance with the foregoing facts, that:

‘All of the legatees and devisees mentioned by name in the will of Adela Hobson, deceased, died prior to the death of said Adela Hobson, and that the said Adela Hobson did not leave any child or children or descendants of any child or children her surviving, and that the said last will and testament, and codicil thereto, of the said Adela Hobson, deceased, made no provision for the distribution of the property of said testatrix in the event of the death of any or all of said legatees or devisees.’

The court decreed that said will and codicil were inoperative to pass any right, title, interest, or estate in the property of Adela Hobson; that, because of the death of all the devisees and legatees prior to her death, all devises and bequests contained in said will and the codicil thereto lapsed and nothing passed under the residuary clause; that all of the property of Adela Hobson descends to her heirs at law under the laws of descent, and none of her property can be construed to have passed under the will and codicil and that none did so pass. The court also decreed the payment of $500 from the estate as complainant's solicitor's fees, and made the same a lien upon the real estate of said estate. The complainant prayed and was allowed an appeal, and has assigned as error that the decree does not construe the will in accordance with the law; that the decree erroneously found that all of the legacies and devises provided for in the will of Adela Hobson lapsed and her estate descended to her heirs at law as intestate estate; that the court should have held that the will passed the title to the real and personal property of the testatrix to Hally Haight, Jr., by executory devise, and the decree should have so found. Appellee Elvira Haight has assigned cross-errors as to the finding of the court that a construction of the will was necessary, and to the allowance of a solicitor's fee to be paid from the estate and making the same a lien upon the real estate of the estate.

It is the contention of appellant that the property devised by the testatrix to her nephew, Hally Haight, in the second, third, fourth, and fifth clauses of the original will and the third clause of the codicil would not have the effect of vesting in him an indefeasible estate in fee simple in said property, but a base or determinable fee; that by the sixth and ninth clauses of the will trusts were created, the effect of which was that Hally Haight could not alienate any portion of the property devised or bequeathed to him during the lifetime of Charlotte Haight; and that he took, not only a base or determinable fee, but also a conditional fee, conditioned upon the carrying out of the alleged trusts. It is also contended that by the third paragraph of the codicil there is shown the intention of the testatrix, by the use of the words ‘to my nephew, Hally Haight, and to his heirs, in fee simple and forever,’ to designate a class who should take her estate in case of the death of both Charlotte and Hally; that the words ‘and to his heirs' are in the nature of an executory devise to appellant, Hally Haight, Jr., who stands as the representative of the class designated as heirs.

To arrive at the proper construction of the will it is necessary to consider all of its parts somewhat in detail. The devises to Hally Haight under the second, third, fourth, and fifth clauses of the will, if the testatrix...