Hammond v. Myers

• Decision Date: 07 April 1920
• Docket Number: No. 12910.,12910.
• Citation: 126 N.E. 537,292 Ill. 270
• Parties: HAMMOND v. MYERS et al.
• Court: Illinois Supreme Court

292 Ill. 270

126 N.E. 537

HAMMOND

v.MYERS et al.

No. 12910.

Supreme Court of Illinois.

Feb. 18, 1920.

Rehearing Denied April 7, 1920.

Bill by Josephine Hammond against Addie Myers and others for partition with cross-bill. From a decree ordering partition according to the cross-bill plaintiff appeals.

Reversed and remanded.

Appeal from Circuit Court, Edgar County; John H. Marshall, judge.

Walter S. Lamon and Joseph E. Dyas, both of Paris, for appellant.

J. K. Lauher and Paul B. Lauher, both of Paris, for appellees.

THOMPSON, J.

The question presented by this appeal is the construction to be given the words ‘nearest akin,’ in the following paragraph of the will of John Love, deceased:

‘I give, devise and bequeath unto my son Robert Linton Love forth (40) acres of land, * * * to have and to hold the same during his natural life, for his support and maintenance during his natural life. After his death to revert to his nearest akin.’

The will was executed December 6, 1886, the testator died February 19, 1888, and the will was admitted to probate March 9, 1888. February 9, 1918, Robert Linton Love, son of the testator and devisee under the will, died, leaving him surviving no widow, parent, or child, but leaving him surviving a sister, a brother, seven nieces, and five nephews. May 3, 1918, Josephine Hammond survivingsister of Robert Linton Love, filed her bill seeking partition of the real estate described in the will and making her brother and her nieces and nephews defendants. By her bill she claims to be the owner of an undivided half of said real estate as tenant in common with her brother and that the nieces and nephews of Robert Linton Love have no interest in the premises. The defendants answered the bill, admitting all its allegations except that with reference to the interests of the parties. Defendants filed a cross-bill, setting forth the interests of the parties and the relation of the parties to Robert Linton Love, deceased, as follows: Charles M. Love, brother, Josephine Hammond, sister, and Addie Myers, only child of a deceased sister, each 60/360 of the premises; Howard Wallace and Bessie Bonwell, children of a deceased son of a deceased sister, each 30/360; Clyde Taylor, Emma Kester, Ella Richmond, and william H. Taylor, children of a deceased sister, each 15/360; and Horace G. Phillips, Elizabeth Lemmons, Belle Connor, Anna Jones, and Charles J. Phillips, children of a deceased sister, each 12/360. The cause was heard upon the bill, cross-bill, and answers, and a decree entered finding that the interests of the parties in said real estate were correctly set forth in the cross-bill and ordering partition of said premises accordingly. From this decree appellant prayed and perfected her appeal.

The evidence shows that at the time this will was executed the living heirs of the testator were two sons, four daughters, and five grandchildren, children of a deceased daughter, Margaret L. Phillips. Subsequent to the making of the will and subsequent to the death of the testator but prior to the death of Robert Linton Love, the life tenant, three daughters of the testator, Belle Myers, Harriet Taylor, and Elizabeth Wallace, died, leaving surviving them children, who, with the children of Margaret Phillips, claim to be entitled to an interest in the land here in question, as set forth in the cross-bill. In 1886 the testator, John Love, had some personal property and 180 acres of land. He disposed of 40 acres of this land by will to take care of his son Robert Linton Love, who was not mentally capable of caring for himself. All of the remainder of his property passed intestate and was sold by the administrator of his estate. The only land held in common by the parties to this suit is the 40 acres here in question.

As we have said, the only question presented here is whether the words ‘nearest akin,’ in the will, mean nearest blood relations or include all those relations who would take under the statute of distributions. The terms ‘nearest of kin,’ ‘next of kin,’ and similar phrases used in wills, have been the subject of serious consideration by the courts of last resort of this and other countries. Redfield, in his work on Wills (volume 2, 2d Ed., p. 75), says:

‘Bequests to the next of kin of the testator or of some person named have received somewhat different constructions in the early cases and different views have been maintained by different judges of great learning and ability. On the one hand, the terms were held to include those, only, who would take under the statute of distributions. Of this opinion were Mr. Justice Buller, Lord Kenyon, and Sir John Leach. And on the other hand were Lord Thurlow, Lord Eldon, Sir William Grant, and the decision of Sir T. Plumer in Brandon v. Brandon, who all maintain that the terms ‘next of kin’ apply to those nearest in kindred to the propositus and exclude all of more remote degree. The question came before the court in Elmsley v. Young, and at the rolls it was held that the words ‘next of kin,’ used simpliciter and without explanatory context, must be taken to mean next of kin according to the...