Mather v. Mather

• Decision Date: 30 September 1882
• Citation: 1882 WL 10358,103 Ill. 607
• Parties: SAMUEL MATHER et al.v.ASA F. MATHER et al.
• Court: Illinois Supreme Court

103 Ill. 607

1882 WL 10358 (Ill.)

SAMUEL MATHER et al.

v.ASA F. MATHER et al.

Supreme Court of Illinois.

Filed at Ottawa May 12, 1882.Rehearing denied September Term, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Will county; the Hon. JOSIAH MCROBERTS, Judge, presiding.

Mr. A. O. MARSHALL, for the appellants, made the following points among others:

No life or intermediate estate is provided for by the will. There can be but one actual seizin of an estate at one and the same time, and that can only be in him who has a freehold therein. 2 Washburn on Real Prop. 498, sec. 1.

A freehold is necessary to keep the seizin for the remainder-man. 2 Washburn on Real Prop. sec. 8, page 502; 4 Kent's Commentaries, (10th ed.) 268.

It is an essential and imperative rule of law that a remainder should take effect immediately on the determination of the prior estate, the particular estate and remainder together, forming one continuous ownership. 2 Washburn on Real Prop. sec. 10, page 503.

If the particular estate is void, the remainder is left without support. 2 Washburn on Real Prop. sec. 21, page 512; 4 Kent's Commentaries, 269; Broom's Legal Maxims, 180.

A possibility at the creation of the limitation that the event upon which it depends may exceed in point of time the authorized period, is fatal to it. 5 Abbott's (N. Y.) Digest, sec. 12, page 147, and cases there cited.

A limitation void as to some of the persons comprised in the class to which it is made, is void as to the whole class. Courts will not undertake to separate the interests of those who might take from those who can not. Caldwell v. Willis, 57 Miss. 555; Smith's Appeal, 88 Pa. St. 492; Williams on Real Prop. 262; Davenport v. Harris, 3 Grant, 164; Jarman on Wills, 233.

A devise can not be made to an unborn child of an unborn child. That tends to perpetuity. 1 Washburn on Real Prop. 97.

Mr. ASA F. MATHER, pro se:

Courts will, if possible, adopt such construction as will uphold all the provisions of the will. And in carrying this purpose into effect, it is permissible to resort to any reasonable intendment. Redfield on Wills, chap. 9, sec. 6.

The courts will not, without absolute necessity, hold a devise void for uncertainty, but will give it a meaning if it is possible. 1 Jarman on Wills, 643, and note 1.

The devise is not open to the objection that it creates a perpetuity. The rule is, that a devise may be limited to a life or lives in being, and twenty-one years and a few months over.

The devisees of the fee are a class named by the testator. Who or what persons constitute that class is limited and determined at the expiration of a life in being at the death of the testator. Grandchildren and children of deceased grandchildren of the testator only will answer the description. Blatchford et al. v. Newberry et al. 99 Ill. 11.

If the will carves out a particular estate which intervenes between the death of the testator and the period of distribution of the estate devised to the class, then all persons belonging to such class at the time when the estate is divided are included, though born after the death of the testator. Handberry et al. v. Doolittle, 38 Ill. 202.

A testator may make such disposition of his property as he pleases, provided it be not against the statutory rights of his widow, or some law imposing limits to the disposition of property by will. Heuser v. Harris, 42 Ill. 425; Broomfield v. Broomfield, 43 Id. 147; Rhoads v. Rhoads, 43 Id. 239; Waldo v. Cummings, 45 Id. 421.

The devise is not void for remoteness. The devise is to the testator's own grandchildren. All the children of the testator must be in esse at his decease, and their children must be born in their lifetime, so that they necessarily come into existence during a life in being. 1 Jarman on Wills, 542.

As an heir or devisee a child in its mother's womb is regarded as in esse. Botsford v. O'Conner et al. 57 Ill. 72; McConnell et al. v. Smith et al. 23 Id. 611; Detric v. Migatt et al. 19 Id. 146. The will provides for a valid intermediate estate sufficient to support the remainder. It gives the testator's children a life estate in equal parts, limiting each one's share over in case of death. They would then take per autre vie.

It matters not how contingent or uncertain the duration of the estate may be, or how probable is its determination in a limited number of years, if it is capable of enduring for the term of a life it is within the category of estates for life. 1 Washburn on Real Prop. (3d ed.) page 103.

The general intent of the testator must govern, even if a special intent has to yield. Redfield on Wills, 433; 2 Washburn on Real Prop. 540.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This bill was brought by a portion of the heirs of Joshua E. Mather, deceased, against the executor and other heirs, to have the will of the decedent set aside and declared null and void because of the uncertainty of its provisions. Omitting the formal beginning and conclusion, the following is the will as admitted to probate: “After all my debts are paid and discharged, that the residue of my property, both real and personal, shall remain as my estate as long as I have a living child. The rents, use and interests of my estate, both personal and real, I dispose of as follows: First, to my beloved wife, Maria, I will and bequeath one-third of the net income of my estate, both personal and real, during her life, if she accepts it in lieu of dower. Secondly, I will and bequeath to my children the remaining two-thirds of the net income of my estate,”--naming each child,--“during the life of their mother, and after the death of their mother, the whole of the net income of my estate during their lives; and should any of my children die before the time for the final division of my estate, leaving heirs of their body, then their children shall take the share of their parent until the final settlement of my estate, and at the death of my last surviving child my will is that my estate be equally divided between my grandchildren, they to share and...