Lydick v. Tate

• Decision Date: 12 November 1942
• Docket Number: No. 26730.,26730.
• Citation: 380 Ill. 616,44 N.E.2d 583
• Parties: LYDICK et al. v. TATE et al.
• Court: Illinois Supreme Court

380 Ill. 616

44 N.E.2d 583

LYDICK et al.

v.TATE et al.

No. 26730.

Supreme Court of Illinois.

Sept. 25, 1942.

Rehearing Denied Nov. 12, 1942.

Suit by J. M. Lydick and others against Edgar Tate and others to establish title to interests in land. From a decree of dismissal, complainants appeal.

Affirmed.Appeal from Circuit Court, Marion County; F. R. Dove, Judge.

John Lynch and A. J. McMahan, both of Olney (Don O. Russell and Henry J. Mueller, both of St. Louis, Mo., of counsel) for appellants.

Green & Palmer, of Urbana, Walter E. Will and Kiger & Dilsaver, all of Mattoon, and John L. Kagy, of Salem (Henry I. Green, Oris Barth and Enos L. Phillips, all of Urbana, and Jewell I. Dilsaver, or Mattoon, of counsel), for appellees.

SMITH, Justice.

This is an appeal from a decree of the circuit court of Marion county. On motion of appellees the complaint, filed by appellants, was dismissed for want of equity. By the complaint appellants sought to establish title to certain interests in three separate tracts of real estate, under the last will and testament of Martin Adams, deceased. Martin Adams died on March 21, 1912, a resident of Marion county. He left a last will and testament duly executed by him on April 8, 1902. He was 82 years of age at the time he executed his will. He left him surviving, John Adams, his son, and Emma J. Klein (referred to in the will as Emma Adams,) and Ellen S. Meisen-heimer (named in the will as Ellen Tate,) his daughters, as his only heirs-at-law.

His will was duly admitted to probate by the county court of Marion county and his estate was finally settled and the executor discharged, on September 14, 1914. His daughter Ellen S. Meisenheimer had been married twice prior to the date the will was executed. By her first husband, William Lydick, she had one son, Asa Lydick. By her second husband, William Tate, she had two sons, Samuel N. Tate and Edgar Tate.

Ellen Meisenheimer survived her father, Martin Adams. She died testate on April 16, 1936. By her will, duly admitted to probate by the county court of Marion county, she devised all of her property to her sons, Samuel N. Tate and Edgar Tate. The interests in the property claimed by all parties to this suit are based upon the last will and testament of Martin Adams, deceased. By the third paragraph of his will the testator gave all his property to his wife for her life. Due to the fact that she did not survive her husband, this estate lapsed and need not be further noticed in this opinion.

There is involved in this case the title to three separate tracts of land. In the complaint, three separate causes of action are set out, in separate counts, one relating to each tract of land involved. It will be necessary to discuss more in detail the relationship of the parties, and the claims made, in connection with the different paragraphs of the will on which the titles claimed are based. The titles depend upon the construction of three separate paragraphs in the will. It will be necessary to first determine the intention of the testator, as expressed in his will, and then apply the applicable rules of law to the intention so expressed.

The first paragraph of the will involved, and which constitutes the foundation for the claims made in the first cause of action, as stated in the first count, is paragraph 6. This paragraph reads as follows:

‘Sixth: I give, devise and bequeath to Ellen Tate my beloved daughter during her widowhood, (here describing certain real estate) to have and to hold for and during her natural life, and at her death or remarriage the said land shall descend to her heirs.’

On the date the will was executed, April 8, 1902, Ellen Tate, the devisee named in said paragraph, was a widow. She then had three living children, viz: Asa Lydick, Samuel N. Tate and Edgar Tate. Prior to the death of the testator on March 21, 1912, she had married Meisenheimer. She was not a widow at the time of the death of the testator. Her three sons, above named, were living at the date of the testator's death. No other children were born to her. Appellants Lydick, Roggy and Moore are the children and heirs-at-law of Asa Lydick, the deceased son of Ellen Meisen-heimer, by her first marriage. They claim a one-third interest in the 25 acre tract described in said paragraph of the will. Appellants Duncan and Baird claim under an oil and gas lease executed by appellants Lydick, Roggy and Moore. Their interests depend upon the title of their lessors. The defendants in the suit are Samuel N. Tate and Edgar Tate, together with their wives and certain of their lessees.

It is contended by the appellants above named, who are the complainants in count one of the complaint, that by this paragraph of the will the daughter, Ellen Tate, was given a determinable life estate subject to be defeated upon her remarriage, cither prior or subsequent to the death of Martin Adams, the testator; that her marriage to Meisenheimer prior to the death of the testator, terminated her life estate, or prevented it from ever becoming vested. It is further contended that by this paragraph of the will, the testator devised the remainder in the real estate described in that paragraph, on the death or remarriage of Ellen Tate, to her three children then living. It is further contended that the life estate in Ellen Tate, having failed because of the happening of the contingency which was to terminate it, before the estate vested, her three sons, living at the death of the testator, took title to the property, in fee simple, upon his death. The further contention is made that the testator, by the use of the word ‘heirs' in this paragraph of the will, referred to the children of Ellen, and not to her heirs, generally.

Appellees contend that, by this paragraph of the will, the testator intended to give to his daughter Ellen, a life estate with remainder over to her heirs, and that under the rule in Shelley's case, the fee simple title vested in Ellen, the first taker, at the death of the testator.

In the second cause of action stated in the second count, the plaintiffs are the same as in the first count. The cause of action alleged in this count is based upon the seventh paragraph of the will.

Under this count, appellants Lydick, Roggy and Moore, claim a one-ninth undivided interest in the real estate described in that paragraph of the will. The same contentions are made with reference to the chain of title as are made in the first cause of action, stated in the first count. In so far as the devise to the daughter Ellen in this paragraph of the will is concerned, it differs from the sixth paragraph of the will only in that there is no restriction on her remarriage in the seventh paragraph. It is claimed by appellants by this count, that the daughter, Ellen Tate, took a life estate in the one-third undivided interest in the tract of land there described, with remainder over to her children. From this premise the same contention is made that the title to a one-third undivided interest vested in the three sons of Ellen Tate, living at the date of her death.

As to this paragraph of the will, appellees make the same contention made by them as to the sixth paragraph of the will, viz: that it was the intention of the testator, by this paragraph of his will, to devise a life estate to his daughter Ellen, with remainder over to her children; that he used the word ‘heirs' in its technical or general sense and, under the rule in Shelley's case the limitation over was inoperative and that fee simple title vested in the daughter Ellen, the first taker.

The third cause of action stated in the third count of the complaint, presents a similar factual situation. In that count, all of the surviving children of John Adams, deceased, except one son, Everett Adams, are named as plaintiffs. Also named as plaintiffs in this count are the widow and all of the surviving children of a deceased son of John Adams, except Archie Lloyd Adams. Appellee Everett Adams, one of the sons of John Adams, and appellee Archie Lloyd Adams, the son of a deceased son of John Adams, are named as defendants. The Texas Company is named in this count as a defendant because it is lessee in an oil and gas lease executed by some of appellees.

The cause of action stated in this count involves a construction of the fourth paragraph of the last will and testament of Martin Adams deceased.

In this count, appellants claim that the devise to John Adams by this paragraph of the will, was a life estate with remainder over, at his death, to his children. It is claimed in this connection by appellees, that the language in this paragraph, ‘to have and hold during his natural life and at his death then it shall descend to his heirs' should be construed to mean that at the death of John Adams the land should go to his children. Under this contention, it is insisted that at the death of John Adams, subsequent to the death of the testator, Martin Adams, title to the land vested in the five children of John Adams, living at that time. It is claimed that the three plaintiffs, who were children of John Adams, deceased, each took a one-fifth interest in the property; that the widow of the deceased son of John Adams took a one-fifteenth interest, and each of his three children took a one-thirtieth interest in the land described in this paragraph of the will.

As to this cause of action, appellees make the same contentions they make in defense of the causes of action set out in counts one and two. They assert that Martin Adams, the testator, by this paragraph of his last will and testament, intended to vest a life estate in his son John Adams, with remainder over to his heirs, at his death; that under the rule in Shelley's case the limitation over was inoperative and that upon the death of the testator the fee simple title vested in John Adams, the ancestor, who was the first taker.

In order that the questions involved in the first cause of...