Henry v. Metz

• Decision Date: 10 March 1943
• Docket Number: No. 26825.,26825.
• Citation: 46 N.E.2d 945,382 Ill. 297
• Parties: HENRY et al. v. METZ et al.
• Court: Illinois Supreme Court

382 Ill. 297

46 N.E.2d 945

HENRY et al.

v.METZ et al.

No. 26825.

Supreme Court of Illinois.

Nov. 18, 1942.

Rehearing Denied March 10, 1943.

Appeal from Circuit Court, Livingston County; Ray Sesler, judge.

Suit by Aura V. Henry and others against Claude Metz and others for the partition of certain land. From decree entered, the defendant Claude Metz appeals and Mabel M. Metz and Neta V. Metz cross-appeal.

Affirmed.

Greenebaum & Burns, of Pontiac, for appellant.

James & Dolgin, of Fairbury, and Tuesburg & Armstrong, of Pontiac, for appellee Aura V. Henry.

E. A. Simmons, of Pontiac, for other appellees.

GUNN, Justice.

Appellee Aura V. Henry, brought her suit in equity in the circuit court of Livingston county for the partition of certain land. The interests of the parties depend upon the construction of the deed to the real estate involved, to determine the interests of the parties named therein. The construction claimed by appellant would give him a greater portion of the land than decreed by the circuit court, and hence a freehold is involved.

The real estate in question is the south half of the northeast quarter, and the northwest quarter of the northeast quarter of section seven, township twenty-nine north, range seven east of the third P. M., in Livingston county. This was a part of the estate of Peter Metz, who died intestate in February, 1894, leaving surviving a widow and six children, including Thomas J. Metz. He owned considerable other land, and on March 5, 1894, his widow and children partitioned his estate by executing and delivering deeds to the different portions among the several children, or by making money payments. The part allotted to Thomas J. Metz was conveyed to him by a deed signed by all of the cotenants and by the widow of Peter Metz, but was not signed by himself.

The deed is substantially as follows: ‘The Grantors, Angeline J. Metz, [et al.] * * * convey and warrant to Thomas J. Metz the following described real estate [describing.] The estate of said grantee in said premises is limited to a life estate and the remainder in fee simple to the children and heirs at law of said grantee.’ Inasmuch as Thomas J. Metz, as heir-at-law of Peter Metz, had a one-sixth interest in the estate of his father, and did not sign the deed, it was effective to pass title to the grantee in an undivided five-sixths part thereof only, instead of the whole, which is a fact to be kept in mind in ascertaining the interests of the parties.

At the time of the delivery of the deed Thomas J. Metz had two children, the plaintiff, Aura V. Henry, and the defendant Claude Metz. His wife died about a year after the deed was delivered. He married again, and a third child, Neta V. Metz, was born about 1910. At the time of his death he was survived by Mabel M. Metz, his second wife and widow. In 1910 Thomas J. Metz and Mabel M. Metz conveyed by quitclaim deed to the defendant Mabel M. Metz, the east 48 acres of the south half of the northeast quarter of section seven; and December 27, 1917, Claude Metz, by virtue of a sheriff's deed, acquired the interest of Thomas J. Metz in all of the described land.

The proper determination of the case depends upon a construction of the deed made to Thomas J. Metz in 1894 by the widow and other children of Peter Metz. The trial court held Thomas J. Metz took a life estate in said land, and his three children, Aura V. Henry, Claude Metz and Neta V. Metz, took the remainder in fee. The correctness of this decision is questioned by appellant, and also by appellees Mabel M. Metz and Neta V. Metz, by cross appeal.

The deed was in the statutory from, without words of inheritance, and therefore its construction is governed by sections 9 and 13 of the Conveyance Act, Ill.Rev.Stat.1941, c. 30, §§ 8, 12. Section 13 provides every estate in lands so conveyed, without words of inheritance, ‘shall be deemed a fee simple estate of inheritance, if a less estate be not limited by express words, or do not appear to have been granted, conveyed, or devised by construction or operation of law.’

The problem in this case is one of construction. In the construction of deeds, wills, contracts and other instruments in writing the courts seek to ascertain the intention of the parties, and the intention, when found, will be given effect if it is consistent with the language used and with the law and with public policy. Anderson v. Stewart, 285 Ill. 605, 121 N.E. 198;Bear v. Millikin Trust Co., 336 Ill. 366, 168 N.E. 349, 73 A.L.R. 173;Woods v. Seymour, 350 Ill. 493, 183 N.E. 458. All clauses manifesting the grantor's intention must be given effect, unless they violate the law. Farmer v. Reed, 335 Ill. 156, 166 N.E. 498;Williams v. Swango, 365 Ill. 549, 7 N.E.2d 306. In construing a deed, effect must be given to each clause or term employed by the parties, rejecting none as meaningless or surplusage. Woods v. Seymour, supra; Tallman v. Eastern Illinois & Peoria Railroad Co., 379 Ill. 441, 41 N.E.2d 537.

In ascertaining and giving effect to the intent of the parties to a deed, the courts are not confined to a strict and literal construction of the language used, when to do so would frustrate the intent of the parties. Kearney v. Kirkland, 279 Ill. 516, 117 N.E. 100;McCoy v. Fahrney, 182 Ill. 60, 55 N.E. 61;Magnolia Petroleum Co. v. West, 374 Ill. 516, 30 N.E.2d 24, 136 A.L.R. 372. In construing a deed, surrounding or attendant circumstances may be considered, if in them there is any evidence to indicate the construction placed on the words by the parties in the deed (Williams v. Swango, supra), as well as the practical construction of the instrument by the parties. Farnam v. Thompkins, 171 Ill. 519, 49 N.E. 568;Craig v. Rupcke, 274 Ill. 626, 113 N.E. 928; Williams v. Swango, supra.

The correct determination of this case does not depend upon the meaning of the words in the limiting clause of the deed, but rather to what persons the words apply. If the words ‘and heirs at law’ apply to Thomas J. Metz, one result will follow, and if they apply to the children of Thomas J. Metz a quite different one will obtain. There is no occasion to consider the application of legal principles until that question is determined.

It must be remembered in this case that when Peter Metz died Thomas J. Metz was the owner in fee of an undivided one sixth of the real estate of his father, subject to a dower right on the part of the widow. This interest could be obtained in severalty by him, either by parol partition among the heirs, or by a partition proceeding in court. It is important to keep this in mind in determining whether certain words claimed to vest a fee in Thomas J. Metz by the deed under consideration were used with reference to him, or were intended to apply to his children. When the deed from the other heirs was made in the partition proceeding it was in the ordinary statutory form, which would have granted a fee had it not been for the express limitation contained in the words ‘The estate of said grantee in said premises is limited to a life estate, and the remainder in fee simple to the children and heirs at law of said grantee.’ Thomas J. Metz also already had a fee, which was undivided, but he accepted a deed which expressly limited his estate to one for life, and it is now claimed the use of the words ‘and heirs at law of said grantee’ operated to again vest him with the full fee-simple title. This contention is clearly at variance with the apparent intention of the parties, and it grows chiefly out of assuming that the words ‘heirs at law’ are applied to the grantee instead of to the children of the grantee.

In the family adjustment the intent to limit Thomas J. Metz to a life estate is clear, but since he was entitled to the fee in one sixth of the land it would be natural to provide that the children of Thomas J. Metz should have the remainder in fee simple, when he took for himself only a life estate. The construction placed upon the deed by the heirs-at-law of Peter Metz, and by Thomas J. Metz and his children, was indicated on an occasion when it became necessary to have the partition deeds reformed in order to correct descriptions. In 1923 a proceeding was brought in the circuit court of Livingston county on behalf of Ernest P. Metz, one of the other heirs, because it appeared that part of the land that was to go to Ernest P. was included by mistake in that of Thomas J. Metz, and it was alleged in the complaint in the case and found in the decree that the interest conveyed in the Thomas J. Metz deed was only for life, with the remainder to his children. To this proceeding all of the heirs-at-law of Peter Metz, as well as of Thomas J. Metz, and his children and wife, and unborn children were made parties, and no suggestion appears that any different construction of the deed to Thomas J. Metz was urged upon the court.

While we do not regard this last proceeding as res judicata of the proper construction of the deed under consideration, we do regard it in the nature of a construction by the persons interested in it, and as giving us some light upon the actual intention of the parties. The holding of the court in that case, and the practical construction placed upon the deed by persons interested in the land, as well as the actual intent declared in the deed indicate ‘and heirs at law’ referred to the children of Thomas J. Metz and not to Thomas J. Metz, the grantee. In other words every circumstance, including the fact there is some evidence of the improvident character of Thomas J. Metz, indicates the parties prepared and construed this deed as though it read ‘and the remainder...