McGlothlin v. McElvain

• Decision Date: 21 September 1950
• Docket Number: No. 31524,31524
• Citation: 95 N.E.2d 68,407 Ill. 142
• Court: Illinois Supreme Court
• Parties: McGLOTHLIN et al. v. McELVAIN et al.

Page 68

95 N.E.2d 68

407 Ill. 142

McGLOTHLIN et al. v. McELVAIN et al.

No. 31524.

Supreme Court of Illinois.

Sept. 21, 1950.

As Modified on Denial of Rehearing Nov. 17, 1950.

William G. Peacock, of Morris, for appellant.

Murphy & Murphy, and Hemphill & Kelsey, all of Carlinville, for appellees.

GUNN, Justice.

This is an appeal from a decree of the circuit court of Macoupin County, partitioning certain real estate which passed under the will of Jonathan Plowman, who died February 19, 1900, leaving surviving him seven children, and leaving a certain last will and testament which was admitted to probate.

The case concerns property which was devised to his daughter Rachel Plowman by the sixth and ninth paragraphs of his will. By the sixth paragraph of the will it was provided: 'Sixth: I give and bequeath to my daughter Rachel Plowman, the east half of the northeast quarter, and the northeast quarter of the southeast quarter, all in Section two (2), Township twelve (12), North, Range Seven (7) West of the third Principal Meridan, in Macoupin County, Illinois.' and the ninth paragraph of the will reads as follows:

'Ninth: I give, devise and bequeath to my daughters, Mary E. and Rachel Plowman, my homestead in Virden, described as follows, to-wit: Lots eight (8), nine (9) and twelve (12), also Lots one (1), four (4), and five (5) all in block forty-three (43), in Hickox and Others Addition to the Town (now City,) of Virden, also Out Lot 'H' in said addition to the City of Virden, all being in the County of Macoupin and State of Illinois, also all of my personal estate of every kind which my said daughters are to take without appraisement.'

The controversy concerns the construction of the eleventh paragraph of the will, which provided: 'Eleventh: In the event of the death of any of my said children, without leaving them surviving lawful issue, I direct that the portion devised to such child be distributed share and share alike among my said children then surviving.'

Of the seven children of Jonathan Plowman, Emily Cheney died January 17, 1917 leaving surviving issue; Mary E. Plowman died August 19, 1920, leaving no issue. She was survived by five of her brothers and sisters, viz., Adoniram J. Plowman, who died August 9, 1921, without issue; Charles Plowman, who died January 13, 1927, leaving issue; Edward Plowman, who died January 14, 1931, leaving issue; Hattie Cooper, who died July 6, 1931, leaving issue; and Rachel Plowman, who died without issue on January 14, 1948. It is to be noted that Rachel Plowman, who died without issue, was not survived by any of the other children of the testator.

It is the contention of the plaintiffs-appellees that, upon the death of Rachel without issue, her interest was divested by operation of paragraph 11 of the will, and that such interest then became vested in such persons as were the heirs-at-law of Jonathan Plowman, determined as of the date of Rachel's death.

The defendants-appellants contend that paragraph 11 does not operate to divest the fee-simple estate devised by paragraphs 6 and 9 to Rachel, for the reason that Rachel had no brothers and sisters surviving at the time of her death, and that the will and the eleventh paragraph must be read as a whole, and that the testator's intent was to divest the estate devised to Rachel only in the event she died without lawful issue surviving her, and was survived by other children of the testator.

The lode star of will construction is to ascertain the intention of the testator. When the intention is ascertained it will be given effect by the court if it is lawful, is not against public policy, and not contrary to words having a fixed or technical meaning. Lawson v. Illinois Merchants Trust Co., 337 Ill. 49, 168 N.E. 681. To ascertain this intention the entire will must be examined so each clause may be given effect, and in ascertaining this intention certain elementary rules applying to testamentary disposition must be observed, among which are: (a) the language construed must be found within the four corners of the instrument (Halderman v. Halderman, 342 Ill. 550, 174 N.E. 890,); (b) a construction should be given avoiding intestacy of the whole or any part of the property, if possible (Hartwick v. Heberling, 364 Ill. 523, 4 N.E.2d 965); (c) give the language used its ordinary common meaning, unless other language manifests that it be used in a special or limited sense (Carlin v. Helm, 331 Ill. 213, 162 N.E. 873; MeClure v. McClure, 319 Ill. 271, 149 N.E. 748); (d) render a construction that will vest the whole title in the earliest taker, the first if possible. Bradsby v. Wallace, 202 Ill. 239, 66 N.E. 1088; McFarland v. MdFarland, 177 Ill. 208, 52 N.E. 281; Davis v. Ripley, 194 Ill. 399, 62 N.E. 852. And even technical rules will not be permitted to defeat the intention of the testator when not in violation of law. Lawson v. Illinois Merchants Trust Co., 337 Ill. 49, 168 N.E. 681.

Having regard for such rules of construction, we observe that by the sixth paragraph of the will of Jonathan Plowman there was a plain devise to Rachel Plowman of one hundred twenty acres by the use of the words 'I give and bequeath.' Were the same language used in a deed, transposing the words 'convey and warrant' for those of 'give and bequeath,' a fee-simple title would result under the statute of Illinois. (Ill.Rev.Stat.1949, chap. 30, par. 8.) The same result would apply to paragraph 9, devising the homestead, except that Rachel was given a half interest only therein, with her sister Mary E. Plowman. There was likewise no residuary clause, and there was no property of the testator that was not disposed of by the will.

Jonathan Plowman had seven children at the date of his will, October 5, 1895, and at the date of his death on February 19, 1900, each of whom was devised a certain parcel of land on the same terms as that given Rachel in the sixth paragraph of the will, and each of the seven children were included in the eleventh paragraph, making the provision that in case of any child dying without leaving surviving lawful issue the portion devised to such child should be distributed among the children then surviving, share and share alike. The word 'then' can refer to no other time than the date of the death of the devisee and the word 'children' refers to the children of the testator, and not to his grandchildren or great grandchildren, because he recognizes that a child may die leaving surviving issue, but he makes the eleventh paragarph apply only to the share of a child dying without lawful issue, and makes no provision for the share so abating being distributed to 'issue,' but only to 'children then surviving.' This language clearly indicates that only children can take such share; and this view is fortified by the well-settled principle that a devise to a child is not construed to mean a grandchild unless a clear intention or necessary implication requires it. Watterson v. Thompson, 404 Ill. 515, 89 N.E.2d 381, and cases cited.

The testator knew all of his children would die, and ultimately one child would survive the others, and the apparent object of the eleventh paragraph was to terminate the devise to such of his children as died without leaving surviving lawful issue, and was survived by brothers, or sisters, or both. From this it follows that in order for the eleventh paragraph to have effect, the child whose share is involved must (a) die without issue surviving; and (b) have a brother or sister surviving. The actual intent is clear and obvious. If a child died without issue and another child or children of the testator survived, such share of the one so dying without issue was, by executory devise, given over to a surviving child, in which event the last child dying, without surviving issue, would leave no one qualified to take under the literal terms of the will. Such ultimate situation is presented in this case. Rachel died without surviving lawful issue, and was not survived by any brother or sister, children of the testator. Rachel died testate, and disposed of the properties given to her in the will, to appellants.

The circuit court held that the estate of Rachel aterminated with her death, and that it descended to the heirs of Jonathan Plowman, computed as of the time of Rachel's death, thus leaving a certain portion of Jonathan Plowman's estate intestate. Counsel for appellees contend the eleventh paragraph of the will limited the fee of Rachel by a requirement that she be survived by lawful issue, and, having none, her share became intestate and descended to the heirs of Jonathan Plowman. On the contrary, appellants claim that the eleventh paragraph of the will created a conditional limitation by reason of such executory devise, and that the events which would divest her of her interest having failed, her fee, which before the death of all of her brothers and sisters had been determinable, now became absolute, subject to her testamentary disposition.

We do not believe that the precise question presented by the facts in this case has ever been directly decided by this court, and therefore its correct disposition must necessarily depend upon principle or analogy derived from decisions of other States, similar, if not precisely in point.

Estates in land range down from a fee simple absolute, which includes every interest therein, a transfer giving to the grantee or devisee all interest as far as duration is concerned. Sometimes an estate is granted or devised which is a fee, subject to being transferred to another person upon the happening or not happening of certain specified events, or one which will exist perpetually unless a certain condition or event occurs, the failure of which leaves the estate absolute in the first instance.

Such estates, so restricted or competent to become absolute, may be designated as estates which may ripen into fee simple, as for illustration: (1) a qualified fee at...