Howe v. Howe

• Decision Date: 29 October 1894
• Parties: HOWE et al. v. HOWE et al.
• Court: Illinois Supreme Court

152 Ill. 252

38 N.E. 1083

HOWE et al.

v.HOWE et al.¹

Supreme Court of Illinois.

Oct. 29, 1894.

Appeal from circuit court, La Salle county; George W. Stipp, Judge.

Bill by Jerome Howe and Charles Howe, executors of Peter Howe, deceased, against Cora Howe and others, for construction of the will of said testator. A decree was rendered construing the will, and defendants appeal. Reversed.McIlduff & Torrence, for appellants.

Winslow Evans, Mayo & Widmer, and McDougal & Chapman, for appellees.

On the 25th day of January, 1887, Peter Howe, since deceased, made his last will and testament, in the words and the figures following:

‘1. I, Peter Howe, of the county of La Salle and state of Illinois, do hereby make, publish, and declare this, my last will and testament, in manner and form following:

‘(1) I direct that my funeral expenses and all my just debts shall be fully paid.

‘(2) To my wife, Arvilla Howe, I give and devise my present homestead, consisting of one hundred and sixty acres, for her sole use and benefit for and during her natural life. Further, I give to her absolutely all my household furniture, my horse, cow, carriage, and harness, and the sum of twenty thousand dollars.

‘(3) To my daughter Mrs. Marietta A. Ervin I give and devise all of section three (3) in township twenty-nine (29) north, range two (2) east of the third principal meridian, in the county of La Salle and state of Illinois, for and during her natural life, and at her decease I give and devise said section three (3) to the lawful issue of said Marietta, their heirs and assigns, forever.

‘(4) To my daughter Mrs. Harriet E. Hodge I give and devise lots one (1), two (2), and three (3), being the northwest quarter of section one (1) and township thirty (30) north, range one (1) east of the third principal meridian, in the county of Marshall and state of Illinois; also, the southwest quarter of section six (6), the northwestquarter and west half of the northeast quarter of section twenty-eight (28),-the three last-described tracts all being situated in township thirty (30) north, range two (2) east of the third principal meridian, in the county of La Salle and state of Illinois,-for and during her natural life; and at her decease I give and devise all the real estate in this paragraph described to the lawful issue of said Harriet, their heirs and assigns, forever.

‘(5) To my daughter Mrs. Ida E. Fowler I give and devise the southeast quarter of section twenty (20) in township (30) north, range (2) east of the third principal meridian; the southwest quarter of section twenty-one (21), except right of way on the east side to pass wagons, in township thirty (30) north, range two (2) east of the third principal meridian; and the southeast quarter and all that part of the southwest quarter of section thirty (30) in township twenty-nine (29) north, range two (2) east of the third principal meridian, lying east of the Illinois Central Railroad, in the county of La Salle and state of Illinois; and the northwest quarter of section twenty-three (23) in township twenty-nine (29) north, range one (1) east of the third principal meridian, containing one hundred and fifty-three acres, more or less, in the county of Marshall and state of Illinois, for and during her natural life; and at her decease I give and devise all the real estate in this paragraph described to the lawful issue of said Ida, their heirs and assigns, forever.

‘(6) I have already deeded a section of land each to my sons, Jerome and Charles, and now name them here to show that I have not overlooked them.

‘(7) I give and devise all the right I have in fifty acres of land in Tazewell county, Illinois, to my wife, Arvilla Howe, during her life; and at her decease it shall go to our children, as provided by the will of Hezekiah Park.

‘(8) All the rest, residue, and remainder of my property, real and personal, and wheresoever situated, I give to my executors hereinafter, in trust for the following purposes: All my real estate not situated in the state of Illinois, and all my small tracts of less than one hundred and sixty acres in a body, shall be sold, and the proceeds arising from such sales, and all moneys coming to their hands under this paragraph, shall be invested and kept secured on farm lands, the interest being yearly turned into principal, and the fund thus arising shall be divided among all my grandchildren as they shall respectively arrive at the age of thirty (30) years. So long as any real estate shall remain unsold, the rent or income from it shall be put and kept at interest, and disposed of in the manner provided for the other funds named in this paragraph. But if my executors, in the execution of this trust, shall think it better to divide such lands, or any part of the same, among my said grandchildren, instead of making such sale, they are hereby fully authorized to do so, and divide the proceeds of what they shall sell. My intention in disposing of the property named in this paragraph is to divide it equally among all my grandchildren.

‘(9) It is my intention, by this will, to direct that no person shall inherit from my children any of the property acquired from me under this will, or by descent, who is not, or would not if I were living be, related to me by blood.

‘(10) In case of the death of any grandchild before receiving his or her respective share, then the share that he or she would have been entitled to shall be equally divided among all my surviving grandchildren.

‘(11) In case of the death of any grandchild who may become possessed of property under any or either paragraph of this will without leaving lineal issue, then what he or she shall have received shall be equally divided among all my surviving grandchildren.

‘(12) In case of the death of either of my daughters, or if either shall fail to keep the lands herein given them as a life estate, productive and in good condition, then my executors shall take charge of said land, and pay over the annual proceeds to those entitled thereto.

‘(13) If any of my children, or any other legatee or devisee, shall attempt to contest this, my will, then he or she so attempting to break or interfere with any or either of its provisions shall be deprived of all benefit under the same.

‘Lastly, I hereby appoint my sons, Jerome Howe and Charles Howe, executors of this my last will and testament, and revoke all other wills by me made, and I hereby direct that my said executors shall not be required to give security as such executors.

‘In testimony whereof, I, the said Peter Howe, have hereunto set my hand and seal this, the twenty-fifth day of January, A. D. 1887. Peter Howe [Seal].

‘Signed, sealed, published, and declared as and for his last will and testament by the said Peter Howe, in the presence of us, who, in his presence and in the presence of each other, and at his request, have subscribed our names as witnesses thereto. A. J. Stateler. Henry Gunn.’

Peter Howe, the testator, died November 11, 1888, leaving, him surviving, Arvilla Howe, his widow, and five children, his heirs at law; Mrs. Marietta A. Ervin, who was then 46 years of age; Mrs. Harriet Elvira Hodge, then 44 years of age; Jerome Howe, then 40 years of age; Charles Howe, then 36 years of age; and Mrs. Ida E. Fowler, then 32 years of age. Arvilla Howe, the widow, died intestate soon after the decease of the testator, leaving, her surviving, the abovenamed children, her only heirs at law. The testator also left, him surviving, fourteen grandchildren: One, a child of Mrs. Ervin; one, a child of Charles Howe; two, children of Mrs. Hodge; three, children of Mrs. Fowler; and seven, children of Jerome Howe. At the time of the testator's death the oldest of these grandchildren, George O. Hodge, was 21 years of age, and the youngest, a son of Jerome Howe, was about 1 year old. Since the testator's death, four of his grandchildren then living have died, all of whom were infant children of Jerome Howe; and one grandchild, a son of Jerome Howe, has been born; hence, there are now living eleven grandchildren of the testator. Two of these, George O. Hodge and John W. Hodge, are now of full age. The others are all minors. Since the testator's death, two of his daughters, Mrs. Hodge and Mrs. Fowler, have died, both intestate; the former leaving her husband and two sons surviving, and the latter her husband and three children. Lewis J. Hodge, surviving husband of Mrs. Hodge, is administrator of her estate; and Charles H. Fowler, surviving husband of Mrs. Fowler, is administrator of her estate. The testator died seised in fee of the real estate described in the second, third, fourth, and fifth paragraphs of said will. He also died seised in fee of real estate not situated in the state of Illinois; also, of real estate, of less than 160 acres in a body, situated in the state of Illinois; also, of other real estate, of 160 or more acres in a body, situated in the state of Illinois. All the debts of the testator, and the pecuniary and specific legacies given to his wife, have been paid in full. Of the residue of the testator's estate, the personal property and the lands directed to be converted into money now amount to about $200,000, while the tracts of land in the state of Illinois, each of which contains not less than 160 acres in a body, including the homestead given to the wife for life, which the court below held is embraced in the residuary clause of the will, are worth some $100,000. The present litigation arises out of a bill in chancery that was filed by Jerome Howe and Charles Howe, executors, for the purpose of obtaining a construction of the will. All persons in interest were made parties defendant. The several adult defendants filed answers to the bill, and the infant defendants answered by their respective guardians ad litem. The cause was heard on the pleadings and proofs, and the court thereupon made certain findings of fact, and entered a...