Knight v. Gregory

• Decision Date: 20 February 1929
• Docket Number: No. 19096.,19096.
• Citation: 165 N.E. 208,333 Ill. 643
• Court: Illinois Supreme Court
• Parties: KNIGHT v. GREGORY et al.

333 Ill. 643

165 N.E. 208

KNIGHT

v.GREGORY et al.

No. 19096.

Supreme Court of Illinois.

Feb. 20, 1929.

Error to Circuit Court, Moultrie County; D. H. Wawsley, Judge.

Suit by Lillian B. Knight against Charles A. Gregory, individually and as executor under the will of James A. Gregory, deceased, and others. Decree of dismissal, and complainant brings error.

Affirmed.C. R. Patterson and John E. Jennings, both of Sullivan, for plaintiff in error.

Cochran & Sentel, and W. G. Cochran, guardian ad litem, all of Sullivan (George W. Burton, of Peoria, of counsel), for defendants in error.

DUNN, J.

James A. Gregory died on October 14, 1927, leaving a will, which was admitted to probate on November 19, 1927, by the second paragraph of which he disposed of all of his property after the payment of his debts and funeral expenses, as follows:

‘Second-After the payment of such funeral expenses and debts, I direct my estate, both real and personal to be divided into five and one-half shares to be distributed as follows, viz.: to my son, Charles A. Gregory two shares; to my daughter Estella Donovan one share; to my daughter Lillian B. Knight one share, and to my daughter Ginevra F. Wacaser one share and to my grandson Gregory Prichard one-half share. The sale and distribution of my estate after my death to be left entirely to the judgment of my son, Charles A. Gregory, in whom I have the utmost confidence, both as to his ability and intergrity.’

The testator nominated his son, Charles A. Gregory, as executor, and letters testamentary were issued to him by the county court of Moultrie county. He owned at his death real estate in Moultrie county, consisting of a farm of about 264 acres, town lots in the village of Lovington, on which he resided, and two acres of vacant land in the same village. His daughter Lillian B. Knight, one of the beneficiaries of the will, filed a bill for the partition of the real estate, claiming that by virtue of the will the beneficiaries named in the second paragraph became seized of the real estate in the following proportions: Charles A. Gregory, four-elevenths; Estella Donovan, Ginevra F. Wacaser, and Lillian B. Knight, each two-elevenths; and Gregory Prichard, one-eleventh. The bill alleges that there is sufficient personal property belonging to the testator's estate to pay all his just debts, funeral expenses, and costs of administration, and that there will be no necessity to resort to any of the real estate for that purpose. The beneficiaries were all made parties defendant, Charles A. Gregory as executor as well as individually. A demurrer was filed by all the adult beneficiaries and the executor. A guardian ad litem was appointed for the grandson, who was a minor, and he joined in the demurrer of the other defendants. The court sustained the demurrers and dismissed the bill for want of equity. The complainant has sued out a writ of error.

It is contended by the plaintiff in error that Charles A. Gregory took no title to the real estate as executor or trustee; that if he took any title his seizin was momentary, only, and the beneficiaries named in the will became the owners of the real estate immediately on the death of the testator; and that if the will gave any title to Charles it created merely a dry or passive trust in him, which the Statute of Uses (see Smith-Hurd Rev. St. 1927, c. 30, § 3) immediately executed and the beneficiaries thereby became seized of the estate. It is the contention of the defendants in error that the real and personal property should be sold by the testator's son, Charles, and the proceeds should be distributed among the beneficiaries named in the will, that this was a gift of personalty and not of land, and that the beneficiaries of the will took no interest in the land.

[1][2] The question essential to be first determined is the intention of the testator, to be ascertained from the language of his will. When his intention is so ascertained, it must be carried out if it violates no rule of law. The paragraph to be construed consists of two sentences, the first of which by itself is not open to construction, for, considered alone, it unquestionably devises all the residue of the testator's real estate, after the payment of his debts and funeral expenses, to his three daughters, his son, and his grandson in the proportions stated. The estate is directed to be divided, both the real estate and the personal estate, into shares, which are to be distributed, the number of shares indicated, to each person named. No person is directed or authorized in this sentence to make the distribution, but the persons named are left to make the division and distribution among themselves either by voluntary agreement, or, if they cannot agree, by such method as the law provides. The testator, however, did not leave this sentence standing alone. It was a part of his will, but it must be construed with reference to the other provisions. It was subject to qualification by the language of the testator used in any part of his will. This sentence says nothing about a sale of the testator's property, but the second sentence of the paragraph provides that the sale and distribution of the testator's estate, after his death, is to be left entirely to the judgment of his son, Charles. These words cannot be disregarded. They must be considered in connection with the other words of the will. Where a fee simple is expressly devised by one clause of a will, if the intention of the testator ascertained by a consideration of the whole will is that the gift should be other than a fee simple, it is wholly immaterial in what part of the will such intention is manifested. Giles v. Anslow, 128 Ill. 187, 21 N. E. 225;Robison v. Botkin, 181 Ill. 182, 54 N. E. 915;Becker v. Becker, 206 Ill. 53, 69 N. E. 49;Meins v. Meins, 288 Ill. 463, 123 N. E. 554;Glass v. Johnson, 297 Ill. 149, 130 N. E. 473;Buckner v. Carr, 302 Ill. 378, 134 N. E. 760.

[3] To what sale, then, does the testator refer which is to be left to the judgment of his son? Manifestly he expected and intended that in the process of dividing and distributing his estate all his property should be sold and this declaration in regard to the sale is the expression of his intention that such sale shall be made by his son when and as his judgment shall determine. The plan of the testator for the devolution of his estate was simple. His heirs were a son and three daughters. He wanted to treat them all alike, except that he would give the son a double portion. He had a grandson, the child of one of his daughters whom he wished to share directly in his estate, and therefore he determined to leave him half as much as a daughter's share. This resulted in his decision that his whole estate should be divided into five and a half parts and distributed, two parts (or four-elevenths) to his son, one part (or two-elevenths) to each daughter, and one part (being one-eleventh) to the grandson. He left no widow for whom he needed to make provision, and therefore it was unnecessary to postpone the division and distribution of the estate. Doubtless it occurred to him that it might be difficult to divide the land without manifest injury to the interest of some of the parties, but if the whole estate were turned into money it could be easily distributed without loss or unfairness to any one and with little cost. Accordingly, he follows the direction for a division and distribution of all his estate, both real and personal, by the further direction how such division and distribution shall be made; that is, by a sale and distribution to be made by his son,...