Lash v. Lash

• Decision Date: 20 April 1904
• Parties: LASH v. LASH et al.
• Court: Illinois Supreme Court

209 Ill. 595

70 N.E. 1049

LASH

v.LASH et al. ^*

Supreme Court of Illinois.

April 20, 1904.

Appeal from Circuit Court, McLean County; C. D. Meyers, Judge.

Bill for partition by James A. Lash against William E. Lash, and others. From a decree dismissing the bill, complainant appeals. Affirmed.

Louis Fitz Henry and D. D. Donahue, for appellant.

Welty, Sterling & Whitmore, for appellees.

BOGGS, J.

Isaac Lash, of McLean county, departed this life May 13, 1902, seised of the title to the W. 1/2 of the E. 1/2 of section 27, and the W. 1/2 of the N. E. 1/4 of section 31, in township 23 N., range 2 E. of the third principal meridian, in said county. He left his last will and testament, which reads as follows:

‘I, Isaac Lash, of the city of Bloomington, in the county of McLean and state of Illinois, aged eighty-one (81) years, being of sound and disposing mind and memory, do hereby make, publish and declare this instrument to be my last will and testament. That is to say, after the payment of my debts and funeral expenses I give and devise to my beloved wife, Anna Lash, all those tracts or parcels of land described as the west half of the east half of section No. twenty-seven (27), also the west half of the north-east quarter of section No. thirty-four (34), all being in township No. twenty-three (23), north, range two (2), east of the third principal meridian, situate in the county of McLean and state of Illinois. To have and to hold, together with the rents and profits thereof, during her natural life, and at her death the above described lands shall be sold and the proceeds thereof shall be divided as follows between my heirs, to wit: To my daughter Eliza Jane Lash I give the sum of $1,000. To my son James A. Lash I give the sum of $1,000. The balance of the proceeds of the sale of the foregoing described lands shall be divided equally between my six (6) children, to wit: Martha Ann Lash, Levi A. Lash, David N. Lash, Mary E. Orendorf (formerly Mary E. Lash), Frank O. Lash and William E. Lash, save and except Martha Ann Lash is to have $600 out of my estate over and above her equal share with the other five heirs. The sum of $1,000 is to be deducted from Mary E. Orendorf's share and to be equally divided between Martha Ann Lash, Levi A. Lash, David N. Lash, Frank O. Lash and William E. Lash, I having to pay $1,000 for Mary E. Orendorf as guardian. I give all my personal property to my beloved wife, Anna Lash. I hereby appoint William E. Lash, of McLean county, Illinois, executor of this instrument without bond, hereby revoking all former wills by me made. My executor shall have the use of the above described lands for one year free of rent, and is to have one year after my decease to sell the lands, and charge no fee for settling up the estate.’

On the 1st day of July, 1903, the appellant filed this his bill in chancery, in which, as amended, he alleged the execution and probate of the will; that the testator was his father, and that certain of the appellees herein were the other heirs at law of the testator; that Martha Ann Lash, a daughter of the testator, and one of the persons entitled under the will to a portion of the proceeds arising from the sale of the land, departed this life after the execution of the will and before the death of the testator; that the true construction of the will is, to quote from the bill, ‘that the said lands were to be sold and the proceeds divided among the testator's children, providing that the said wife died within the space of one year after the testator's death, but that the said wife did not die within the space of one year, and that the power of sale and gifts were contingent upon the death of the said wife within the space of one year after the death of the testator, and the said power of sale and gifts, being contingent upon the death of the said wife within one year after the testator's death, failed, and neither the gifts and power of sale ever vested’; that the provisions of the will as to the said Martha Ann Lash, deceased, lapsed by reason of her death prior to the death of the testator; and that, as the legal effect thereof, the interest of Martha Ann in said lands became intestate property, and descended, as land, to the heirs at law of the testator, of whom one was the appellant. The bill also alleged that on June 28, 1902, Frank O. Lash conveyed all his right, title, and interest in the land, under the will of Isaac Lash, to William E. Lash, the executor and the possessor of the power of sale, and that the grantor warranted all his interest in said land to the grantee, and the deed expressly covenanted ‘that in the event of the sale of the said land by the executor of the will of Isaac Lash, deceased, or otherwise, the said grantee shall take all the proceeds arising from the grantor's interest.’ The bill also averred that by reason of errors, omissions, and misdescriptions in conveyances in the chain of title to the lands, different persons (some 75 in number, who were also named and made parties defendant to the bill) had apparent interests in the title to the land. The prayer of the bill was that a decree should be entered finding the title in fee to the lands to be in the heirs at law of the said testator as tenants in common, and ordering that the title thereto should be quieted and the lands be partitioned and allotted in severalty to said complainant and the other heirs at law of the testator, in accordance with their rights and interests under the statute of descent as such heirs at law and tenants in common. A general demurrer to the bill was sustained, and a decree entered dismissing the bill for want of equity, at the cost of the appellant. From this decree the appellant has prosecuted this appeal.

We think the demurrer was properly sustained. It is very clear from a consideration of the will that it was the intention of the testator that the land should not descend as land to his heirs at law. He caused it to be set down plainly and explicitly in his will that his wife should have the use and benefit of the land during her natural life, and that after the death of his wife the land should be sold, and the proceeds paid to his sons and daughters, not in the proportions in which it would descend under the statute of descent, but in amounts and proportions as fixed upon by himself and specified in the will. The direction that the land shall be sold is positive and absolute, the only restriction being that the sale should not be made until after the death of his widow. The testator did not contemplate that in any contingency his heirs at law, or any of them, would succeed to the title to the land. The testator did not in express terms confer power on the executor to sell the land, but the executor was charged by law with the duty of applying the fund produced by the sale of the land to the payment of the amounts ordered by the will to be paid therefrom to the appellant and the other persons designated in the will to receive it, and power to sell the land vested in the executor by implication of law. 11 Am. & Eng. Ency. of Law, 1046; Williams on Executors, p. 413; Rankin v. Rankin, 36 Ill. 293, 87 Am. Dec. 205. Moreover, there is an express recognition that the executor possessed such power, to be found in the provisions of the concluding sentence of the will. This final sentence of the will was incorporated therein for the purpose of nominating an executor and for providing the compensation to be paid to such executor, and in it is to be found the language on which the appellant bases the contention...