Leiter v. Robert D. Sheppard.

• Citation: 1877 WL 9533,85 Ill. 242
• Parties: LEVI Z. LEITERv.ROBERT D. SHEPPARD.
• Decision Date: 31 January 1877
• Court: Illinois Supreme Court

85 Ill. 242

1877 WL 9533 (Ill.)

LEVI Z. LEITER

v.ROBERT D. SHEPPARD.

Supreme Court of Illinois.

January Term, 1877.

APPEAL from the Circuit Court of Cook county; the Hon. E. S. WILLIAMS, Judge, presiding. Mr. JOHN BORDEN, for the appellant.

Messrs. DENT & BLACK, for the appellee.

Mr. CHIEF JUSTICE SHELDON delivered the opinion of the Court:

The appellee, Sheppard, filed a bill for the specific performance of a contract for the purchase, by the appellant, Leiter, of the east two-thirds of lot 7, in block 54, in the original town of Chicago, situate on East Madison street, in said city, at the price of $90,000. The circuit court granted the prayer of the bill, and the defendant, Leiter, appealed.

The west half of the premises, or middle third of original lot 7, belonged to one Sandford Johnson in his lifetime. He died on or about April 10, 1873, leaving a will, and this portion owned by him passed to his devisees under the fifth or residuary clause of the will. Appellee became seized of all such estate as could be conveyed by the several mentioned persons who were named as immediate devisees. And the only question raised is, whether these named persons took life estates, only, under the will, or took a fee simple in their respective shares of the property devised. Unless they took the latter, appellee could not convey to appellant the good title contracted for.

The fifth or residuary clause of the will follows a specific devise and bequest to Martha L. Johnson, the widow of the testator, and a specific devise of other property to Mercy Dye, and also a specific devise to Julia A. Blackford, during coverture, etc., and directs that the rest, residue and remainder of the estate, both real and personal, be divided into three equal parts, one of which parts was to go to said Martha L. Johnson, “to be held and enjoyed by her and her heirs and assigns forever,” (as to this interest no question is made,) and the two other parts were to go to the persons in respect to whose interests the question under consideration is made, the words of the devise being as follows:

“Another of said three parts I give, devise and bequeath unto her who was Jane S. White, now the wife of my friend Jno. W. Smith, of the city of Chicago, in the county of Cook, and State of Illinois, to be held by her in her own right, then to her children, heirs and assigns, forever.

And the other of said three parts I give, devise and bequeath, as follows: To Susan Dickinson, of Chicago, Cook county, Illinois, one-fourth part thereof; to Mrs. Olive Munger, of the city of Ottawa, in the State of Illinois, and to her children, heirs and assigns after her, one-fourth part thereof; to Mrs. Margaret Fairfield, widow of M. F. Fairfield, deceased, of Minneapolis, Minnesota, and to her children, heirs and assigns after her, one-fourth part thereof. (The last three named devisees are surviving sisters of my first wife, who was, before marriage to me, Caroline Dickinson, now deceased.)

And to Mrs. Mercy Dye, the wife of John R. Dye, of Hancock county, Ohio, and to her children, heirs and assigns after her, I give, devise and bequeath one-fourth part thereof of the said last third part.”

It is contended on the part of the appellee, that Mrs. Smith, Mrs. Munger, Mrs. Dye, and Mrs. Fairfield, each took only a life estate, with a vested remainder in fee to the children. It is said that the words employed in the devise to Martha L. Johnson, show that the testator knew how to give a fee in strict technical language. That he next gives one-third to Jane S. Smith, to be held by her in her own right, then to her children, heirs and assigns forever; that this change of language after the devise to his wife, indicates a change of intention; and that the words “heirs and assigns,” in this clause of the will, mean the heirs and assigns of the children, and not of the mother; that any other construction would render null the word “children,” and also the word “then,” in the devise to Mrs. Smith, and the words “after her,” in the devises to Mrs. Munger, Dye and Fairfield.

There is a degree of plausibility in the claim thus asserted. But it is an unsafe construction, which depends upon mere change of phraseology in respect of different devises, as denoting difference of intention, or which is based upon the assumption of a will being framed upon the plan of the use of entire accuracy of expression, and the employment of no redundant words.

Reference is to be made here to the provision of our statute...