Potter v. Potter

• Decision Date: 19 December 1922
• Docket Number: No. 14415.,14415.
• Citation: 137 N.E. 425,306 Ill. 37
• Parties: POTTER v. POTTER et al.
• Court: Illinois Supreme Court

306 Ill. 37

137 N.E. 425

POTTER

v.POTTER et al.

No. 14415.

Supreme Court of Illinois.

Dec. 19, 1922.

Suit by Alice M. Potter against Samuel H. Potter and others. From the decree rendered, complainant appeals.

Reversed and remanded.

Cartwright, J., dissenting.

Appeal from Circuit Court, Iroquois County; Frank L. Hooper, judge.

A. F. Goodyear and R. F. Goodyear, both of Watseka, for appellant.

Free P. Mooris and Roscoe C. South, both of Watseka, for appellees.

DUNN, J.

Maltby G. Potter died on August 28, 1908, the owner of lands in Iroquois county, which were devised by his will, executed on October 2, 1901, which was admitted to probate, and, omitting the formal parts, reads as follows:

‘First-It is my will and desire that my funeral expenses and all my just debts be fully paid.

‘Second-I give and bequeath to my wife, Mahala G. Potter, all my personal and real estate, of every name and nature, during her lifetime, she to receave all rents and revanews for same, and she to pay the taxes and care for the property, and at her death all the property to be equally divided between our living children or to their living heirs, each of our children to share equal and alike.

‘Lastly-I hereby nominate and appoint my sons George B. Potter and James C. Potter, ‘they not to be required to give bond,’ to be the executors of this my last will and testament, hereby revoking all former wills by me made.'

The testator was survived by his wife, Mahala G. Potter, and six children. He had had other children, but all died in his lifetime, leaving no descendants. His daughter Jessie died 10 days before his will was executed, leaving her husband, D. William Good, surviving her. The relationship between all the members of the Potter family in the lifetime of the father and mother was pleasant, as shown by the oral testimony. It further appeared from such testimony that William Good, husband of Jessie, was a resident of Roanoke, Va., at and since the death of Jessie, and that he was well to do financially. Of his children surviving him, his daughter Minnie G. Posson died leaving no descendants, but leaving her husband, Cornelius Posson, surviving her, and his son Fred A. Potter died leaving no descendants, but leaving his widow, Alice M. Potter, who is the appellant, surviving him. Afterward the testator's widow, the life tenant, died, and the appellant filed a bill for the construction of the will, alleging that she is entitled to one-half of the property owned by the testator at the time of his death which her husband, Fred A. Potter, would have taken had he survived his mother, Mahala G. Potter, and that Cornelius Posson was entitled to the same interest in the part which his wife, Minnie G. Posson, would have taken if she had survived her mother; that the surviving children of the testator deny her claims, and insist that she did not take anything under the will, and she therefore prays for a construction of the will in accordance with her contention. The surviving children, who were made defendants, answered, admitting all the allegations of fact, but denying that the appellant is entitled to any share in the estate of the testator, and averring that the true meaning of the will is that at the death of the widow the estate should be equally divided among the children then living. The court entered a decree, finding that the true intention of the testator was that only the children who survived the life tenant were entitled to take under clause 2 of the will; that the words ‘living heirs' should be construed as children or descendants, and do not include the appellant, and decreeing that the surviving children of the testator are the owners in fee simple of the land, and that no other persons have any interest therein. The complainant has appealed, and insists that the construction of the court is erroneous, and that she is entitled as an heir of the son of the testator, who died in the lifetime of the life tenant, to his share of the estate.

The case turns upon the construction to be given to the second clause of the will, particularly to the language which directs that all the property at the death of the life tenant shall ‘be equally divided between our living children or to their living heirs, each of our children to share equal and alike.’ The estate so devised to the children was manifestly a contingent remainder under the well-established rule that a gift to survivors which is preceded by a particular estate, at the expiration of which the gift is to take effect in possession, will take effect in favor of those only who survive the particular estate. Ridgeway v. Underwood, 67 Ill. 419;Blatchford v. Newberry, 99 Ill. 11;Schuknecht v. Schultz, 212 Ill. 43, 72 N. E. 37;Burlet v. Burlet, 246 Ill. 563, 92 N. E. 965;Bender v. Bender, 292 Ill. 658, 127 N. E. 22. It could not be known until the death of the life tenant who would survive her to take the estate, or who would be the heirs of any children who might have died in her lifetime.

The devise of the remainder, being, ‘to be equally divided between our living children or to their living heirs,’ indicates the intention of the testator to substitute the heirs of any child who may have died before the termination of the estate of the life tenant as a devisee in the place of the child so dying. Ebey v. Adams, 135 Ill. 80, 25 N. E. 1013,10 L. R. A. 162; 1 Redfield on Wills, 486. The essential question in controversy concerns the meaning to be given to the word ‘heirs.’ Who are the ‘living heirs' who are to share with the living children in the distribution of the estate? The word ‘heirs' is a technical word, with a fixed legal meaning, and, unless controlled by or inconsistent with the context, must be interpreted according to its strict technical meaning, as importing those persons designated by law to succeed to the estate in case of intestacy. Rawson v. Rawson, 52 Ill. 62;Richards v. Miller, 62 Ill. 417;Alexander v. Masonic Aid Ass'n, 126 Ill. 558, 18 N. E. 556,2 L. R. A. 161;Belleville Savings Bank v. Aneshaensel, 298 Ill. 292, 131 N. E. 682. It is, however, frequently used not according to its technical meaning, but in a more popular sense, and its signification then is to be taken according to the intention. It has been held to mean children, issue, or descendants (Bland v. Bland, 103 Ill. 11;Summers v. Smith, 127 Ill. 645, 21 N. E. 191;Smith v. Kimbell, 153 Ill. 368, 38 N. E. 1029); heirs of the blood of the testator; (Black v. Jones, 264 Ill. 548, 106 N. E. 462, Ann. Cas. 1915D, 1173) husband or wife; (Richards v. Miller, supra); and it has been held to exclude the latter, even though technically an heir, where such meaning is inconsistent with the context. (Black v. Jones, supra; Smith v. Winsor, 239 Ill. 567, 88 N. E. 482). The question is entirely one of intention, and in interpreting the language of the will to ascertain the intention which the testator has expressed, technical words must be given their legal effect, even though the testator uses inconsistent words, unless the latter make it clear that the testator did not intend to use the technical words in their proper sense. Griswold v. Hicks, 132 Ill. 494, 24 N. E. 63,22 Am. St. Rep. 549.

In this case there is no context, no single word in the instrument, tending to qualify in any degree the three lines disposing of the remainder by directing its equal division among the living children or to their living heirs, each of the children to share equal and alike. No context appearing inconsistent with giving the word ‘heirs' its technical meaning, the appellees urge that it was the testator's plain intention to have the property remain in his immediate family, and evidence was introduced as to the condition of the testator's family at the time of the execution of his will and of his death, from which the inference of such intention is sought to be drawn. There is no dispute in the evidence. At the date of the execution of his will the testator had six living children and 10 grandchildren. His daughter Jessie had died 10 days before, leaving no children, but leaving a husband surviving her. Four other children had previously died, leaving no children and no spouses surviving. Four of the living children had children, and two more were born during the life of the testator, and another after his death and during the life tenancy. The other two children had no children. Both have died since the testator's death, leaving no children, but leaving spouses. Appellant was married to the oldest of the testator's children on March 27, 1877. He died July 13, 1920, before the death of the life tenant. They had no children.

It is argued that the testator's intention was to keep the property for his own blood by giving it first to his wife for life, and then at her death to his then living children and the children of such as had died. This is assuming an intention which may perhaps have existed in the testator's mind, but it clearly has no foundation in the language of his will. It is said that if the words ‘their living heirs' are to be interpreted in their technical sense, the share of the testator's son, the appellant's husband, would go to his heirs, who are his wife (who is the appellant), his mother (the life tenant), and his brothers and sisters who were alive at the death of the life tenant, all of them being technically the living heirs of Fred. This ignores the fact that the interests in the remainder conveyed by the will are contingent; that no child or heir took any interest in the remainder who was not living at the death of the life tenant; therefore the life tenant, his mother, could not take as an heir of Fred, though his brothers and sisters who were alive at her death, together with his widow, would take under the terms of the will.

It is also argued that the words ‘or to their living heirs' are intended to substitute the heirs of the children as devisees only in the event of there being no...