Hartwick v. Heberling

• Decision Date: 04 December 1936
• Docket Number: No. 23694.,23694.
• Citation: 4 N.E.2d 965,364 Ill. 523
• Parties: HARTWICK et al. v. HEBERLING et al.
• Court: Illinois Supreme Court

364 Ill. 523

4 N.E.2d 965

HARTWICK et al.

v.HEBERLING et al.

No. 23694.

Supreme Court of Illinois.

Oct. 27, 1936.

As Modified on Denied of Rehearing Dec. 4, 1936.

Appeal from Circuit Court, Jersey County; Walter W. Wright, judge.

Bill by William Hartwick and others against Belle Heberling and others, wherein Crandall Grimes filed a cross-bill. From a decree dismissing the bill and cross-bill after sustaining general and special demurrers to bill and cross-bill, Crandall Grimes and another appeal.

Affirmed.Dryer, Brown & Poos, of Hillsboro, and Walter J. Chapman, of Alton, for appellant Crandall Grimes.

Chapman & Motz, of Alton (W. J. Chapman and I. W. Giberson, both of Alton, of counsel), for appellant Gertrude Cowan.

George E. Drach, of Springfield, for appellee Prudential Ins. Co. of America.

Hugh W. Cross and F. A. Du Hadway, both of Jerseyville (Merrill I. Schnebly, of Urbana, of counsel), for other appellees.

FARTHING, Justice.

Jarrett T. Grimes, a widower, died testate on July 11, 1915. After providing for payment of debts and funeral expenses, his will reads as follows:

‘Second-I give and devise to my son, James K. P. Grimes, and to the heirs of his body begotten, my homestead farm, upon which I now reside. [Then follows the description of approximately 240 acres of land in Jersey county.] And in case my said son James K. P. Grimes shall die leaving no heirs of his body begotten, then all of the lands herein described, as above set forth, shall vest in my daughters, Isabella Grimes, and Florence Grimes, and the survivor of them, in case either of them be dead at the time of the decease of my said son.

‘Third-I give and devise to my daughter, Florence Grimes, [describing approximately 280 acres of land in Jersey county,] to have and to hold to her and the heirs of her body begotten; and in case my said daughter Florence, shall die leaving no heirs of her body begotten, then all of the lands in this section devised to her, shall vest in my said son James K. P. Grimes, and my said daughter, Isabella Grimes, and the survivor of them, in case either of them be dead at the time of the decease of my said daughter, Florence Grimes.

‘Fourth-I give and devise to my daughter, Isabella Grimes, [describing approximately 160 acres of land in Jersey county,] to have and to hold to her and to the heirs of her body begotten; and in case my said daughter, Isabella, shall die leaving no heirs of her body begotten, then all of the lands in this section devised to her, shall vest in my said son, James K. P. Grimes, and my said daughter, Florence Grimes, and the survivor of them, in case either of them be dead at the time of the decease of my said daughter, Isabella Grimes.

‘Fifth-I give and bequeath to my son Edward Grimes the sum of one thousand dollars ($1000.00).

‘Sixth-I give and bequeath to my daughter, Mary E. Hartwick, the sum of one thousand dollars ($1000.00).

‘Seventh-I give and bequeath to my grand-daughter, Gertrude Grimes, the sum of one thousand five hundred ($1500.00) dollars.

‘Eighth-I give, devise and bequeath, all of the rest, residue and remainder of my property, of whatsoever kind and description, real, personal and mixed, and wheresoever situated, to my said children, James K. P. Grimes, Florence Grimes, and Isabella Grimes and to the heirs of their bodies begotten, and in case of the death of either of them, leaving no heirs of their dodies begotten, then to the survivor or survivors of them.

‘Ninth-I nominate and appoint my said son, James K. P. Grimes to be the executor of this my last will and testament, without bond or security.’

The will was dated January 30, 1911. By a codicil dated April 12, 1911, the testator devised to his daughter Isabella an additional 40 acres out of the lands devised by the third clause of his will. The terms of this devise in the codicil are the same as those in the fourth clause of the will, and for that reason wherever the fourth clause of the will is mentioned hereafter it will be understood to include this codicil.

When the will and codicil were executed, Jarrett T. Grimes and his three children, Florence, Isabella, and James K. P. Grimes, were living together on the homestead farm. Phillip Grimes, a married son, had died in 1900, leaving appellant Gertrude Cowan and four other children as his heirs. Gertrude Cowan was given a legacy of $1,500 by the seventh clause of the will. Edward Grimes, another son of the testator, died intestate in 1921, and at the time of this suit appellant Crandall Grimes, a grandson, was his only heir. Edward received $1,000 by the fifth clause of the will. Mary Hartwick, a daughter of Jarrett T. Grimes, died intestate on November 12, 1926, leaving five children as her only heirs. She received a legacy of $1,000 by the sixth clause of the will. James K. P. Grimes, a bachelor, died intestate on November 6, 1914, during the testator's lifetime. He is the son mentioned in the second, third, fourth, and eighth clauses of the will. Florence and Isabella were never married. They survived the testator and both died testate, the former January 23, 1932, and the latter in 1933. None of the last three children had descendants.

William Hartwick, since deceased, and Gertrude Cowan, filed the original bill for partition in the circuit court of Jersey county. They made the heirs at law of Jarrett T. Grimes, the heirs, legatees, and devisees of Isabella Grimes and the executrix of her will, parties defendant. The bill sought partition of the 200 acres of land devised to Isabella Grimes by the fourth clause of her father's will. They alleged that this land was devised to Isabella for and during her natural life, but that no disposition of the remainder was made; that, since she died without leaving heirs of her body surviving her, this land passed as intestate property to the heirs of Jarrett T. Grimes; and that the attempted devise of this land by Isabella Grimes was void.

Crandall Grimes answered the original bill and filed a cross-bill. In addition to the other parties to the original suit, he made defendants to the cross-bill the executors, trustees, legatees, and devisees named in the will of Florence Grimes, and certain other persons who had acquired interests by deed or mortgage in the lands devised to Florence and Isabella Grimes by the will of their father. The cross-bill alleges that only life estates were created by a deed made in 1874 by Jarrett T. Grimes and wife to Isabella Grimes and by the will and codicil of Jarrett T. Grimes, and that the eighth clause of his will did not devise the reversionary interest in any of his property but that all his property passed to his heir as intestate property.

The circuit court sustained general and special demurrers to the amended bill for partition and the amended cross-bill as amended. Cross-complainant Crandall Grimes and Gertrude Cowan, one of the complainants, stood by their pleadings, and the bill and cross-bill were dismissed. They have appealed to this court, since freeholds are involved.

A determination of the issues requires a construction of the Jarrett T. Grimes will. The purpose of construing a will is to ascertain the intention of the testator and to give effect to that intention. Liesman v. Liesman, 331 Ill. 287, 162 N.E. 855;Fairview Lodge v. Gaddis, 296 Ill. 570, 130 N.E. 315. In interpreting a particular provision of a will, the law authorizes and requires a consideration of the whole will, and the testator's intention will be arrived at from a consideration of all the language he has used, in whatever portion of the will that language may be found. Johnson v. Boland, 343 Ill. 552, 555, 175 N.E. 794;Drager v. McIntosh, 316 Ill. 460, 147 N.E. 433. All rules of construction of wills yield to the intention of the testator clearly expressed. Technical rules will not be permitted to defeat such intention when it is not in violation of a rule of law or public policy. Walker v. Walker, 283 Ill. 11, 118 N.E. 1014;Lawson v. Merchants Trust Co., 337 Ill. 49, 168 N.E. 681. While decisions involving wills may serve to guide this court with respect to general rules as to the construction to be placed upon the will under consideration, yet, unless the case be in every respect directly in point, the decision will not control, but at most will only be persuasive. Smith v. Garber, 286 Ill. 67, 74, 121 N.E. 173;Ward v. Caverly, 276 Ill. 416, 114 N.E. 924;O'Hare v. Johnston, 273 Ill. 458, 113 N.E. 127. There is also a presumption against intestacy which arises from the making of a will, and any reasonable construction which avoids a partial intestacy will be adopted. Halderman v. Halderman, 342 Ill. 550, 556, 174 N.E. 890, and cases there cited. The law favors the vesting of estates at the earliest possible time, and the rule is established by many authorities that estates devised will vest at the death of the testator unless a later time for their vesting is clearly determined by the express words of the will or is necessarily implied therefrom. Northern Trust Co. v. Wheaton, 249 Ill. 606, 612, 94 N.E. 980,34 L.R.A.(N.S.) 1150;Carter v. Carter, 234 Ill. 507, 85 N.E. 292;Knight v. Pottgieser, 176 Ill. 368, 52 N.E. 934.

This case involves a construction of the second, third, fourth, and eighth clauses of the will, its codicil, and the deed made in 1874 by Jarrett T. Grimes and wife to Isabella Grimes.

With reference to the second clause of the will, it is contended that the death of James K. P. Grimes during the testator's lifetime lapsed the devise to James for life; that the alternative gifts over after this life estate were contingent remainders with a double aspect; that, since this life estate never vested, the gift in remainder to the heirs of the body of James begotten, and the gift to his sisters Florence and Isabella, ‘and the survivor of them,’ in the event of his death leaving no bodily heirs, both failed. It is also contended that contingent remainders must be supported by...