Mittel v. Karl

• Decision Date: 14 May 1890
• Citation: 133 Ill. 65,24 N.E. 553
• Parties: MITTEL et al. v. KARL et al.
• Court: Illinois Supreme Court

133 Ill. 65

24 N.E. 553

MITTEL et al.

v.KARL et al.¹

Supreme Court of Illinois.

May 14, 1890.

Appeal from circuit court, Cook county; LORIN C. COLLINS, Jr., Judge.

William Vocke and Arnold Heap, for appellants.

Francis Lackner and Otto C. Butz, for appellees.

CRAIG, J.

This was a bill by appellees for partition of certain lands in Cook county. Originally the title to the lands was vested in Michael Jobst and Maria Jobst, his wife, who on July 7, 1875, conveyed by warranty deed of that date to John Mittel. On July 8, 1875, John Mittel, by warranty deed, conveyed the premises to Maria Jobst and Michael Jobst, her husband, and ‘the survivor of them, in his or her own right.’ On February 28, 1885, Maria Jobst died intestate, leaving, her surviving, no issue, but her husband and the complainants in the bill her next of kin. Afterwards, on April 19, 1888, Michael Jobst died, leaving no children, but leaving a will in which he devised his property to his brothers and sisters, who claim the whole of the property conveyed to Jobst and his wife by the deed of July 8, 1875; while, on the other hand, appellees, complainants in the bill, claim that, upon the death of Maria Jobst, an undivided onequarter of the property descended to Michael Jobst as surviving husband, and the other undivided quarter descended to appellees, her next of kin. From the foregoing statement it is apparent that the decision of the case rests entirely upon the construction to be placed upon the deed of July 8, 1875, wherein the premises are conveyed to Maria Jobst and Michael Jobst, her husband, and the survivor of them, in her or his own right. If, under the deed in question, Maria Jobst and Michael Jobst took the fee as tenants in common, then it is plain that, upon the death of Maria, the undivided one-half of the lands which was held by her would descend, one half thereof to her husband, and the other half to appellees. Prior to the adoption of the act of 1861, commonly known as the ‘Married Women's Law,’ under a deed made to a man and his wife, upon the death of one the whole estate passed to the survivor. Mariner v. Saunders, 5 Gilman, 124;Lux v. Hoff, 47 Ill. 425. This rule is predicated upon the principle that in law husband and wife are but one person, and hence cannot take an estate by moities, but both are seised of the entirety, so that neither can dispose of the estate without the consent of the other, but the whole must remain to the survivor. 2 Bl. Comm. 182. Both of the cases cited followed the law as declared by Blackstone: it was held that, where an estate was granted to a man and his wife, they are neither properly joint tenants nor tenants in common. But after the adoption of the act of 1861, conferring upon married women the right to acquire property, and hold and enjoy the same free from the husband's control, this court held that the reason for the rule, holding that a conveyance to husband and wife made them tenants by the entirety with right of survivorship, had ceased to exist, and they will now take and hold as tenants in common. Cooper v. Cooper, 76 Ill. 57. Under the rule as declared in the case last cited, had the land been conveyed to Maria Jobst and Michael Jobst without the words, ‘and the survivor of them, in his or her own right,’ it is clear they would have held the fee as tenants in common, and upon the death of either the land held would have descended to his or her respective heirs. The question, then, to be determined, is, what construction is to be placed on the words found in the deed, ‘and the survivor of them, in his or her own right.’ It is suggested that they may be rejected as surplusage. That cannot be done. These words were placed in the deed by the contracting parties for a purpose, and they cannot arbitrarily be rejected. In the construction of written contracts if is the duty of the court to ascertain the intention of the parties, and the intention when ascertained must control; but, in ariving at the intention, effect must be given to each clause, word, or term employed by the parties, rejecting none as meaningless or surplusage. Lehndorf v. Cope, 122 Ill. 317, 13 N. E. Rep. 505. But it is said, if the words cannot be rejected as surplusage, the deed created a joint tenancy, which has, in effect, been extinguished by our statute, leaving the parties occupying the relation of tenants in common.

Section 5, c. 30, Rev. St., provides that ‘no estate in joint tenancy, in any lands, tenements, or hereditaments, shall be held or claimed under any grant, devise, or conveyance whatsoever, heretofore or hereafter made, other than to executors and trustees, unless the premises therein mentioned shall expressly be thereby declared to pass, not in tenancy in common, but in joint tenancy; and every such estate, other than to executors and trustees, (unless otherwise expressly declared as aforesaid,) shall be deemed to be in tenancy in common.’ Section 1 of chapter 76 of the statute provides: ‘If partition be nor made between joint tenants, the parts of those who die first shall not accrue to the survivors, but descend or pass by devise, and shall be subject to debts, dower, charges, etc., or...