Hamlin v. the United States Express Co..

• Decision Date: 01 October 1883
• Citation: 1883 WL 10321,107 Ill. 443
• Parties: GEORGIETTA L. HAMLIN et al.v.THE UNITED STATES EXPRESS COMPANY.
• Court: Illinois Supreme Court

107 Ill. 443

1883 WL 10321 (Ill.)

GEORGIETTA L. HAMLIN et al.

v.THE UNITED STATES EXPRESS COMPANY.

Supreme Court of Illinois.

Filed at Springfield Oct. 1, 1883.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Sangamon county; the Hon. CHARLES S. ZANE, Judge, presiding.

This was an action of ejectment, brought by Georgietta L. Hamlin and others, against the United States Express Company, for the recovery of certain parts of lots 1 and 2, in block 21, in the old town (now city) of Springfield. The case was tried by the court on an agreed state of facts, namely, that George Woods, at his death, was the owner in fee of the real estate claimed in the declaration; that he died May 8, 1878, leaving a will, which was duly probated September 3, 1878; that on November 17, 1882, Lucinda Woods, his widow, died, without having in any way disposed of said real estate; that plaintiffs were heirs at law of Lucinda Woods, and, if entitled to recover, had the right to the one undivided one-fourth of said real estate. The court found for the defendant, and rendered judgment accordingly.

Messrs. MCCLERNAND & KEYES, and Mr. N. M. BROADWELL, for the plaintiffs in error:

When land is devised to a person with general power to dispose of the same, an estate in fee simple passes. Firman v. Beal, 14 Ill. 244; Ramsdell v. Ramsdell, 21 Maine, 288; 4 Kent's Com. *535, 536; McKenzie's Appeal, 41 Conn. 607. Under our statute every devise of lands is deemed a fee, if a less estate is not limited. Rev. Stat. chap. 30, sec 13; McConnell v. Smith, 23 Ill. 611; Leiter v. Shepherd, 85 Id. 242.

If lands are devised to a person and his heirs, with a gift over if he die intestate or shall not part with the property in his lifetime, the gift over is repugnant and void. 2 Jarman on Wills, *15; Rand v. Meir, 47 Iowa, 607; McKenzie's Appeal, 41 Conn. 607; Ryan v. Meyer, 1 Coldw. 226; Siegwald v. Siegwald, 37 Ill. 430; Holliday v. Dixon, 27 Id. 33; Welsch v. Bank, 94 Id. 203; Brownfield v. Wilson, 78 Id. 471; Roseboom v. Roseboom, 81 N. Y. 356.

A valid executory devise can not subsist under an absolute power of disposition in the first taker. 4 Kent's Com. *270; Jackson v. Robbins, 16 Johns. 537; Ryan v. Meyer, 1 Coldw. 226.

Messrs. GREENE, BURNETT & HUMPHREY, for the defendant in error:

The position contended for by plaintiffs in error is to give effect only to the first few lines of the will, leaving all that follows without purpose,--in other words, that it was not in the power of the testator, after giving an estate without qualification in one part of the will, to qualify the estate in a subsequent part, and that this is true no matter how clearly the intention to limit the estate granted may appear. The intention of the testator, as gathered from every part of the will, must govern. Smith v. Bell, 6 Pet. 68; Johnson v. Johnson, 98 Ill. 564; Bland v. Bland, 103 Id. 12; Smith v. Taylor, 21 Id. 296; Willis v. Watson, 4 Scam. 64; Caruthers v. McNeil, 97 Ill. 256; Holliday v. Dixon, 27 Id. 33; Pool v. Blakie, 53 Id. 495; Markillie v. Ragland, 77 Id. 98; Duryea v. Duryea, 85 Id. 91.

An estate devised may be enlarged, restricted or limited by subsequent words in a will. Smith v. Bell, 6 Pet. 68; Bergan v. Cahill, 55 Ill. 161; Johnson v. Johnson, 98 Id. 564. Mr. JOSEPH M. GROUT, for the legatees in the will:

The intention of the testator must be sought and enforced, if consistent with the rules of law. Boyd v. Strahan, 36 Ill. 358; Bergan v. Cahill, 55 Id. 160; Markillie v. Ragland, 77 Id. 101; Rountree v. Talbot, 89 Id. 249; Johnson v. Johnson, 98 Id. 564; Bland v. Bland, 103 Id. 12; Kennedy et al. v. Kennedy et al. 105 Id. 353.

The intention must be gathered from the whole instrument. Bergan v. Cahill, 55 Ill. 160; Markillie v. Ragland, 77 Id. 100; Caruthers v. McNeil, 97 Id. 256; Johnson v. Johnson, 98 Id. 564; Bland v. Bland, 103 Id. 12.

If possible, all clauses of the will must be given effect. Bland v. Bland, 103 Ill. 12; Johnson v. Johnson, 98 Id. 564; Brownfield v. Wilson, 78 Id. 467; Rountree v. Talbot, 89 Id. 249; Markillie v. Ragland, 77 Id. 101; Bergan v. Cahill, 55 Id. 160.

We think it is clearly settled in this State that a power of sale attached to a life estate will not enlarge it into a fee. If the life estate is given in express terms, it is beyond all question. Fairman v. Beal, 14 Ill. 244; Boyd v. Strahan, 36 Id. 355; Funk v. Eggleston, 92 Id. 532.

Messrs. GROSS & ZANE, also, for the defendant in error:

So far as applicable to the facts of this case, the decisions of this court would seem to establish the following rules of construction:

The prime object in the construction of wills is, to ascertain the intention of the testator. Boyd v. Strahan, 36 Ill. 359; Markillie v. Ragland, 77 Id. 98; Brownfield v. Wilson, 78 Id. 467; Kennedy v. Kennedy, 104 Id. 350.

For this purpose courts will look to the language of the will itself. ( Siegwald v. Siegwald, 37 Ill. 435; City of Peoria v. Darst, 101 Id. 609; Blanchard v. Maynard, 103 Id. 60.) And will consider all parts of the will together. ( Bergan v. Cahill, 55 Ill. 160; Johnson v. Johnson, 98 Id. 564.) And, if possible, give effect to every part. ( Bland v. Bland, 103 Ill. 11; 1 Sheppard's Touchstone, *451.) And this though it may contravene an artificial rule of construction. Kennedy v. Kennedy, 104 Ill. 350.

If the different parts of a will are found to be irreconcilable, the latter provisions must prevail as a modification or abrogation of the former. Murfitt v. Jessop, 94 Ill. 158.

A devise for life may be coupled with an absolute power of disposition in a life tenant. Markillie v. Ragland, 77 Ill. 98; Welsch v. Belleville Savings Bank, 94 Id. 191; Henderson v. Blackburn, 104 Id. 227; Fairman v. Beal, 14 Id. 244.

The gift of an estate of inheritance in lands may be restricted by subsequent words, and changed to an estate for life. Bergan v. Cahill, 55 Ill. 160; Johnson v. Johnson, 98 Id. 564.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

The only question presented upon this record is, whether Lucinda Woods took a title in fee simple under the will of her husband, George Woods. If she did, the judgment below must be reversed. If she did not, it must be affirmed.

The provisions of the will material to the question are as follows: “After the payment of my just debts and funeral expenses, I give, devise and bequeath all my estate, real and personal, of whatever kind and wherever situated, to my wife, Lucinda Woods, for her own use and benefit, with full power to hold, use, enjoy or dispose of the same in any manner she may choose, and, if she so desires, she shall have full power and authority to convey any and all of my real estate by absolute conveyance in fee simple. After the death of my wife, Lucinda Woods, it is my will that all my real estate which shall not have been conveyed by her shall be sold at the best advantage, and in such manner as shall seem for the best interest of said estate, and of the proceeds of said sale it is my will that $5000 be invested for the use and benefit of Carrie Sweet, in the following manner,” etc. “$5000 to be for the benefit of George W. Sweet; $5000 for the benefit of Marion H. Sweet; $2000 to be paid to Joanna D. Stokes,” etc.

It was admitted upon the trial that Joanna D. Stokes, named in said will, was a favorite niece of George Woods; that Carrie Sweet was raised by Mr. and Mrs. Woods as a member of the family; that all the legatees are living, and are taking steps to have said real estate sold as provided by the will, and that Mr. and Mrs. Woods never had any children.

The doctrine relied upon by counsel for plaintiffs in error, that where there is a devise of an unlimited power of disposition of an estate in such manner as the devisee may think fit, a limitation over is inoperative and void by reason of its repugnance to the principal devise, is not controverted by counsel for defendant in error, and is undoubtedly well established. ( Fairman v. Beal, 14 Ill. 244, Welsch v. Belleville Savings Bank, 94 Id. 203, and other authorities cited.) But this doctrine has no application to a case where a life estate is clearly given to the first taker. ( Welsch v. Belleville Savings Bank, supra.) “If an estate be given to a person, generally or indefinitely, with a power of disposition, it carries a fee, unless the testator gives to the first taker an estate for life only, and annexes to it a power of disposition of the reversion. In that case the express limitation for life will control the operation of the power, and prevent it from enlarging the estate to a fee.” 4 Kent's Com. (8th ed.) 603, *526.

The principal rules of construction in such cases have been often quoted by this court, and are familiar to the profession. They are: The intention of the testator, if not inconsistent with the rules of law, shall govern, and this intention is to be ascertained from the whole will and all its parts taken together. Every clause and provision, if possible, should have effect...