McBride v. Clemons

• Decision Date: 08 October 1920
• Docket Number: No. 13330.,13330.
• Citation: 128 N.E. 383,294 Ill. 251
• Parties: McBRIDE et al. v. CLEMONS et al.
• Court: Illinois Supreme Court

294 Ill. 251

128 N.E. 383

McBRIDE et al.

v.CLEMONS et al.

No. 13330.

Supreme Court of Illinois.

June 16, 1920.

Rehearing Denied Oct. 8, 1920.

Suit for partition by Glen H. McBride and others against Cecil Clemons and others. From a decree granting partition, defendants appeal.

Reversed and remanded, for further proceedings consistent with opinion.

Appeal from Circuit Court, Piatt County; Franklin H. Bogg, judge.

Carl S. Reed, of Monticello, guardian ad litem, for appellants.

Herrick & Herrick, of Farmer City, and Leonard W. Ingham, of Clinton, for appellees.

FARMER, J.

Appellees, Glen H. McBride and his wife, Lea, filed their bill in chancery in the circuit court of Piatt county for partition of real estate therein described. A decree for partition as prayed was granted, and the minor defendants to the bill, by their guardian ad litem, have appealed to this court.

The land sought to be partitioned belonged to David T. McBride in his lifetime. He died testate August 13, 1918, and his will was duly admitted to probate, and the correctness of the decree for partition depends upon the construction to be given the second paragraph of the will.

The testator left surviving him his widow, Laura E. McBride, and five adult children, Jesse H. McBride, Bert W. McBride, Olive V. Clemons, Hattie A. Bartison, and Glen H. McBride, his only heirs at law. The will was executed the day before testator's death, and the second paragraph is as follows:

‘Second-After the payment of such funeral expenses and debts, I give, devise and bequeath all my property, both real and personal, of which I may be possessed at the time of my death, to my beloved wife, Laura E. McBride, for her use during her natural lifetime and at her death to be divided, share and share alike, among my five children, Jesse H. McBride, Bert W. McBride, Glen H. McBride, Olive V. Clemons and Hattie A. Bartison, or their descendants in case of the death of any of the above five named children before the death of Laura E. McBride, my wife, and in which case the children of each heir are to receive only their parent's share.’

The bill for partition alleged the five children of the testator took by the will title to the real estate in fee simple, but that a question had arisen as to the character of their estate, and whether their interest was contingent upon their surviving the widow; that on August 6, 1919, the widow and the five children of testator, with their respective husbands and wives, had joined in a conveyance of the premises by warranty deed to J. B. Rinehart; that thereafter, on the next day, the widow and the five children made another warranty deed conveying the premises to the same grantee, in which it was stated that it was the intention of the grantors to convey the reversion in fee to the grantee, and that the particular estate owned by him should merge with the reversion in fee thereby conveyed, and be prematurely destroyed, and he be vested at once with the fee-simple title in possession, and all contingent interests of any kind or character be thereby destroyed. August 7, 1919, Rinehart and his wife conveyed the same land by quitclaim deed to appellee Glen H. McBride, who conveyed the undivided four-fifths thereof of to his brothers and sisters, and then filed his bill for partition. All of the five children of the testator at the time of his death were married, and all had one or more children, except Glen, who has no child or children, and all of said grandchildren of the...