Murphy v. Westhoff

• Decision Date: 21 March 1944
• Docket Number: No. 27708.,27708.
• Citation: 386 Ill. 136,53 N.E.2d 931
• Parties: MURPHY et al. v. WESTHOFF et al.
• Court: Illinois Supreme Court

386 Ill. 136

53 N.E.2d 931

MURPHY et al.

v.WESTHOFF et al.

No. 27708.

Supreme Court of Illinois.

March 21, 1944.

Action by John P. Murphy and another against Emily M. Westhoff and others for construction of will and termination of a trust, and for partition. From a decree for complainants, defendants appeal.

Affirmed.Appeal from Circuit Court, Coles County; George W. Bristow, judge.

LeForgee, Samuels & Miller, of Decatur, for appellants.

F. R. Wiley, of Decatur, for appellees.

Miles A. Tipsword, of Charleston, guardian ad litem.

SMITH, Chief Justice.

This is an appeal from a decree of the circuit court of Coles county. The decree from which the appeal was taken construed the last will and testament of Thomas M. Pendergast, also a trust deed executed by Kate E. Pendergast, and ordered the partition of certain real estate.

Thomas M. Pendergast died testate on July 1, 1931. At the time of his death he was the owner of three parcels of real estate, referred to in the record as tracts A, B, and C. He left surviving, Kate E. Pendergast, his widow, and Mary H. Murphy, Nelle M. Pendergast, and Emily Westhoff, his children, who were his only heirs-at-law. Kate E. Pendergast, the widow of testator, died intestate on March 2, 1942. Mary H. Murphy, one of the daughters, died intestate on April 20, 1936, and prior to the death of the widow of the testator. Mary H. Murphy left surviving, John P. Murphy, her husband, and John Thomas Murphy, her son, as her only heirs-at-law. Her surviving husband did not elect to take dower in her estate in the manner provided by the statute in force at that time.

After the death of Kate E. Pendergast, John P. Murphy and John Thomas Murphy, the surviving husband and son of Mary H. Murphy, filed the complaint in this case. By the complaint they prayed for a construction of the will of Thomas M. Pendergast and for the partition of the real estate owned by him at the time of his death. The complaint also asks for the termination of a certain trust created by Kate E. Pendergast in her lifetime, and for the partition of certain real estate constituting the subject matter of the trust. This real estate consists of two tracts of land, and is referred to in the record as tracts D and E. Nelle M. Pendergast and Emily M. Westhoff, together with a mortgagee and certain tenants of parts of the property involved, were named as defendants.

The decision of the case involves the construction of the third paragraph of the last will and testament of Thomas M. Pendergast, also the construction of a trust instrument executed by Kate E. Pendergast, in her lifetime.

The third paragraph of the will of Thomas M. Pendergast is as follows:

‘I hereby devise all of the real estate I shall own at my death to my said wife for and during her life, with remainder to my children Mary H. Pendergast, Nelle M. Pendergast and Emily M. Pendergast in fee to be divided equally between them and in the event of the death of one of them or more then to the survivors or survivor of them.’

It is the contention of appellants that by the language of this paragraph of the will, the testator, after giving his wife a life estate in all the real estate owned by him at the time of his death, devised the remainder to his three daughters, Mary H. Murphy, Nelle M. Pendergast and Emily Westhoff; that if any of said daughters survived him, but died prior to the death of his widow, the survivor or survivors of said daughters, living at the time of the death of his widow, were to take all of the said property, in fee. They further contend that the remainder interest devised to the daughters was contingent and did not vest until the termination of the life estate in the widow, and then vested only in the daughters who survived that event. They further contend that Mary H. Murphy, one of the daughters, having died prior to the termination of the life estate, title to all the lands passing under the will vested in the two daughters of the testator who survived the death of his widow, the life tenant. Under this construction appellants contend that Mary H. Murphy took no interest in the property because she died before the death of the life tenant; that she having no interest in the property, her surviving husband and son likewise had no interest therein.

Appellees contend that by the will the testator devised a life estate to his widow with the remainder in fee to his three daughters; that the remainder interests vested at the death of the testator; that only the possession and enjoyment was postponed during the continuance of the life estate; that under the will Mary H. Murphy took a one-third interest in fee at the death of her father, subject only to the life estate of the widow; that upon the death of Mary H. Murphy intestate, her one-third interest descended to her surviving husband and son under the Statute of Descent. The chancellor sustained the contention of appellees and entered a decree for partition, as prayed.

It will thus be seen that the rights of the parties in the real estate belonging to Thomas M. Pendergast, at the time of his death, depend upon whether title in fee vested in his three children at the time of his death, or whether such title passed only to the two of his children who survived his widow, the life tenant. The decisive question, therefore, on this branch of the case, is the time the estate in remainder vested under said paragraph of the will. The controlling consideration in construing a will is to discover and give effect to the intention of the testator as expressed in the will, if this can be done without contravening the established rules of law. Mettler v. Warner, 243 Ill. 600, 90 N.E. 1099,134 Am.St.Rep. 388.

The rule is established by many authorities that estates devised will vest at the death of the testator, unless a later time for vesting is clearly indicated by the express words of the will, or is necessarily implied therefrom. Hartwick v. Heberling, 364 Ill. 523, 4 N.E.2d 965;Northern Trust Co. v. Wheaton, 249 Ill. 606, 94 N.E. 980, 34 L.R.A.,N.S., 1150; Carter v. Carter, 234 Ill. 507, 85 N.E. 292;Knight v. Pottgieser, 176 Ill. 368, 52 N.E. 934. Where, in the construction of a will, there is doubt as to the point of time it was intended the estate should vest, the earliest will be taken. The law favors the early vesting of estates. It has long been the settled rule of construction that estates, legal or equitable, given by will, should be regarded as vesting immediately unless the testator has, by very clear words, manifested an intention that they should be contingent on a future event. Armstrong v. Barber, 239 Ill. 389, 88 N.E. 246;Grimmer v. Friederich, 164 Ill. 245, 45 N.E. 498;Kellett v. Shepard, 139 Ill. 433, 28 N.E. 751,34 N.E. 254.

In Smith v. Chester, 272 Ill. 428, 112 N.E. 325, Ann.Cas.1917A, 925, it was said that if those upon whom the will then devolves the title can be determined at the time of the death of the testator, their right to the estate will be deemed vested to take effect in possession at the termination of the intervening life estate. If the persons to take be dubious and cannot be known until the preceding estate becomes extinct, then the right and title are contingent and not vested. The courts are inclined to the construction that will declare the right and title to be vested and will so hold unless a contrary intention appears in the will. Spengler v. Kuhn, 212 Ill. 186, 72 N.E. 214.

A vested remainder is one which, throughout its continuance, gives to the remainderman, or his heirs, the right to the immediate possession whenever and however the preceding estate may determine. Smith v. Shepard, 370 Ill. 491, 19 N.E.2d 368;Lachenmyer v. Gehlbach, 266 Ill. 11, 107 N.E. 202;Brown v. Brown, 247 Ill. 528, 93 N.E. 357;Carter v. Carter, 234 Ill. 507, 85 N.E. 292. The rule is, that where property is devised simpliciter to one person and in case of his death to another, there being no circumstances of an uncertain nature with respect to such death, the death contemplated by the testator will be regarded as one occurring before his own death, and the devisee takes a fee. De Haan v. De Haan, 309 Ill. 323, 141 N.E. 184. In Smith v. Shepard, 370 Ill. 491, 19 N.E.2d 368, it was said that where by will an estate is devised to one person simpliciter, and in case of his death to another, the contingency of ‘his death’ refers to the death of the devisee during the lifetime of the testator, and such devisee has an absolute estate in fee simple if he survives the testator. The same rule is announced in Knight v. Knight, 367 Ill. 646, 12 N.E.2d 649; Evans v. VanMeter, 320 Ill. 195, 150 N.E. 693;Tomlin v. Laws, 301 Ill. 616, 134 N.E. 24, 26 A.L.R. 606;Williamson v. Carnes, 284 Ill. 521, 120 N.E. 585;Kohtz v. Eldred, 208 Ill. 60, 69 N.E. 900;Fishback v. Joesting, 183 Ill. 463, 56 N.E. 62.

Here there is a gift by the testator to his wife for life, with remainder to his three children, naming them, ‘in fee.’ He then provided that in the event of the death of one of them, or more, ‘then to the survivors or survivor.’ Clearly, this is a gift of the remainder, in fee, to his three daughters. It is a gift simpliciter. It is in no sense contingent. It was an absolute gift of the remainder, in fee, to his three daughters, or in case of the death of one or more, to the survivors. The devise to the daughters was not contingent upon any uncertain event. The devise to them was a devise of the fee. Clearly, he intended that the daughters should take feesimple title in the event they survived him. The gift to them was not postponed until the termination of the life estate. It was a devise of the fee outright, with no restrictions, and based upon no contingency. The three daughters did survive their father.

In the Carter case [234 Ill. 507, 85 N.E. 294] the court said: ‘There is no language in the will inducating an intention that the devise to the children should be contingent upon their...