Henderson v. Blackburn
| Decision Date | 28 September 1882 |
| Citation | 1882 WL 10399,104 Ill. 227,44 Am.Rep. 780 |
| Parties | DEBORAH HENDERSONv.WILLIAM BLACKBURN. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Clark county; the Hon. C. B. SMITH, Judge, presiding.
This was an action of ejectment, brought by Deborah Henderson, against William Blackburn, for two certain tracts of land, situated in Clark county. There was a judgment for the defendant, and the plaintiff appealed. Both parties claim title from a common source,--the will of Julius H. Blackburn, deceased, who died testate January 12, 1869. The will, among others, contains the two following clauses:
“ Second--After the payment of said funeral expenses and debts, I give, devise and bequeath unto my beloved wife, Polly Blackburn, all of my estate, both real and personal, to have and to hold, or to dispose of so much of the same as she may need, or wish to use, during her lifetime.
Third--And after her death, if there is anything left, it is my will that whatever there may be left shall be divided equally between William Blackburn, my son, and my daughter, Deborah Hogue, wife of William Hogue.”
The Deborah Hogue mentioned in the will, is now Deborah Henderson, the plaintiff in the suit, and the William Blackburn named, is the defendant.
On the trial, to show title on her part, the plaintiff introduced in evidence said will, and the record of two judgments in the Clark circuit court against William Blackburn, the defendant,--one obtained at the April term, 1869, and the other at the November term, 1873,--together with regular sheriff's deeds, of the dates, respectively, of June 17, 1874, and January 11, 1876, under sheriff's sales, on executions issued upon the judgments, to one Lindsey, conveying to him all the interest of the defendant in the lands of which Julius H. Blackburn died seized, and a deed from Lindsey quitclaiming to the plaintiff all Lindsey's interest in the lands in controversy in this suit, being part of the lands conveyed to him by such sheriff's deeds. The sheriff's sales were made in 1874. Polly Blackburn, wife of Julius H. Blackburn, died September 26, 1878.
The defendant introduced in evidence a deed from Polly Blackburn to himself, dated December 3, 1875, purporting to convey to him the premises in controversy, being lands of which Julius H. Blackburn died seized, the deed containing the following: “Now, the condition of this indenture is this: That Polly Blackburn shall still retain the right, title and possession of the above described property so long as she lives, and nothing herein shall be construed so as to deprive her of all the rights, title and profits of the within named premises while she lives, but after her death the property, as described in this deed, shall belong to William H. Blackburn and his heirs, as described in this indenture, and this deed will have full force and effect; and William H. Blackburn also agrees to attend to the above described property, and keep it in repair, and attend to the instructions of Polly Blackburn in making such repairs as she thinks needful, and attend to her wants generally, so long as she lives, and at her death this deed shall be in force.”
Messrs. GOLDEN & WILKIN, for the appellant:
Under the will the widow took an estate for life, with remainder to the parties to this suit, and the power of disposal conferred on her was only coëxtensive with the estate she took under the will,--that is to say, power was granted her to dispose of her life estate,--and consequently her deed to appellee, if it ever took effect, ceased to represent any estate after her death. The phrase, “if there is anything left, it is my will that whatever may be left,” should be limited to the personal property only. Boyd v. Strahan, 36 Ill. 355; Bradley v. Westcott, 13 Ves. 445; Smith v. Bell, 6 Pet. 68; Siegwald v. Siegwald, 37 Ill. 430; Mulberry v. Mulberry, 50 Id. 67; Burnett v. Lester, 53 Id. 325; Green v. Hewitt, 97 Id. 113; Brant v. Virginia, 93 U. S. 326.
The court erred in excluding the evidence offered to show the circumstances under which the will was made, the state of the testator's property, etc. Giles v. Little, 104 U. S. 291; Brownfield v. Wilson, 78 Ill. 472; 1 Redfield on Wills, 425, note 6, rule 10. The appellee's interest was a vested remainder in the lands of which his father died seized, which was sold by the sheriff. Green v. Hewitt, 97 Ill. 117.
Mr. S. S. WHITEHEAD, for the appellee.
The controversy in this case is upon the construction of the second and third clauses of the will of Julius H. Blackburn--what, thereunder, was the power of disposition of the real estate devised, which was given to the widow, Polly Blackburn.
It appears to be the quite well settled doctrine that where a power of disposal accompanies a bequest or devise of a life estate, the power of disposal is only coëxtensive with the estate which the devisee takes under the will, and means such disposal as a tenant for life could make, unless there are other words clearly indicating that a larger power was intended. Bradley v. Westcott, 13 Ves. 445; Smith v. Bell, 6 Pet. 68; Boyd v. Strahan, 36 Ill. 355; Siegwald v. Siegwald, 37 Id. 430; Mulberry v. Mulberry, 50 Id. 67; Brant v. Virginia Coal and Iron Co. 93 U. S. 326; Giles v. Little, 104 U. S. 291. This doctrine is relied upon in favor of the appellant, it being insisted that it was a life estate which was here devised to the widow, and that the power of disposal which was given to her was such disposal only as a tenant for life could make. There was not here a devise of an estate for life in express terms, but the devise was, “to have and to hold, or to dispose of so much of the same as she may need or wish to use during her lifetime.” The power being given to dispose of so much of the property as she might need or wish to use during her lifetime, we can not doubt that had the widow needed all this property for her support during her lifetime, she might have disposed of the whole of it for such purpose, the power to do so being...
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