Richards v. Miller
| Decision Date | 31 January 1872 |
| Citation | 62 Ill. 417,1872 WL 8063 |
| Parties | ELIZABETH RICHARDSv.JOHN N. MILLER. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Adams County; the Hon. JOSEPH SIBLEY, Judge, presiding.
Francis Miller made her last will and testament, first directing the payment of her funeral expenses and just debts, after which she made various specific and pecuniary bequests to various persons, and to religious associations. Among these was the following:
Joseph Turner, who drafted the will, was named as executor. About a year after making the will the testatrix died. The executor, after qualifying, found the personal assets insufficient to pay the debts and pecuniary bequests, and applied to the county court of Adams County for an order to sell the real estate of which the testatrix died seized, being her homestead of about 100 acres. The court ordered the sale of the whole of it, as prayed for. On report and settlement with the county court, there was $4,177.17 in the hands of the executor for distribution according to the terms of the will. The executor asked for an order directing the distribution of this surplus to the brothers and sisters, and the descendants of the deceased brothers and sisters of the testatrix. The court ordered him to pay one-half of the sum to John N. Miller, the husband of the testatrix, and the other half as asked by the executor. From this order Elizabeth Richards, a sister of the testatrix, appealed to the circuit court.
On the trial in the circuit court, the order of the county court was affirmed, and an appeal taken to this court.
Messrs. BROWNING & BUSHNELL, for the appellant.
Messrs. WHEAT & MARCY, for the appellee.
The testatrix directed the payment of her funeral expenses and debts; and after their discharge she made bequests to her husband and other persons, and several religious societies. She then added this residuary clause:
“I give, devise, and bequeath to my heirs-at-law, the remainder of my estate.”
Upon her death she left surviving her a husband, and brothers and sisters, and their descendants, but no children, and no father or mother.
The personal property was insufficient to pay the debts and specific legacies, and an order was obtained from the proper court to sell the real estate. The whole of the estate was sold, and upon a settlement over four thousand dollars remained in the hands of the executor for distribution.
Who are meant by the words “heirs-at-law,” the husband as well as the brothers and sisters, or only the latter?
We must first ascertain the character of the residuum. Was the real estate, by the sale, converted into personal property?
The will gave no compulsory direction--indeed, none whatever--for the sale of the land; and as the application was made to the court for license, the presumption must be indulged, that the whole was ordered to be sold because it was not susceptible of division, and to avoid injury to the parties interested. The mere order to sell the whole, because it was not susceptible of division without prejudice to the heirs, certainly could not convert the land into money out and out. If so, then the court had the power to change the nature of the bequest and defeat the intention of the testatrix.
The land was devised by the residuary clause. The words “the remainder of my estate” embrace it. After the application of the personal assets, in discharge of the debts and legacies, they being primarily liable for their payment, the heirs-at-law might have taken the land, by satisfaction of the remaining unpaid debts and legacies. It would be strange, then, if a plain devise of land could be changed into a bequest of personalty by the order of the court, and thus a change of devisees effected.
The will gave no directions to sell or convert the real estate. The intention of conversion, then, can not be gathered from it. In express terms it created no charge upon the land for the payment of legacies. The language is: “After the payment of my funeral expenses and debts, I give, devise, etc.” But conceding the right to apply the proceeds of the sale of the land in discharge of the specific legacies, they would only be an implied charge, resulting from a deficiency of personal assets, and not from the language of the will. The right to sell and apply the proceeds was, therefore, limited to the necessity which existed for the payment of the unpaid debts and legacies; and the land can not be regarded as converted out and out. The surplus will retain the character of realty so far as the charge does not extend.
Upon an examination of the authorities, it will be found that even a direction in a will to sell land for a particular purpose does not indicate an intention to convert real into personal property, to all intents, so that any surplus of the proceeds should pass under a residuary bequest of personalty. Much less reasonable is the conclusion of an intention to convert the land, in this case, when there is a devise of it and no direction to sell--no language indicating the intention that it should be converted into money, not even the declared intention that it should be so changed for the purposes of paying legacies. The charge upon it, if any existed, arose only by implication.
We cite a few of the authorities which sustain the view presented.
In Maugham v. Mason, 1 Ves. & B. 409, Sir William Grant said:
Mr. Cox, in his note to Cruse v. Barley, 3 Peere Williams, 22, says that the several cases upon this subject seem to depend upon whether the testator meant to give to the proceeds of the real estate the quality of personalty, to all intents, or only so far as respected the purposes of the will; and that unless he sufficiently declared his intention that the produce of the real estate should be taken as personalty, the surplus will result to the heir.
Mr. Jarman, in his work on Wills (vol. 1, p. 558), declares, that every conversion, however absolute, will be deemed to be a conversion for the purposes of the will only, unless the testator distinctly indicates a different intention.
Under the circumstances of the case at bar, the conversion of the land into money must be regarded as only for the purposes of the will; and when they are satisfied, the money remained as land. 1 Jarman on Wills, 523 b. et seq.; Smith v. McCrary, 3 Iredell Eq. 204; Acroyd v. Smithson, 1 Bro. C. C. 503; Roper v. Radcliffe, 9 Mod. 167; Cruse v. Barley, 3 Peere Williams, 20; Stonehouse v. Evelyn, Id. 252; Chitty v. Parker, 2 Ves. Jr. 271; Berry v. Usher, 11 Ves. Jr. 87; Bourne v. Bourne, 2 Hare, 35; Wood v. Cone, 7 Paige, 472; Wright v. Trustees Meth. Epis. Church, Hoffman, 205.
Is the husband an heir? The statute unquestionably makes him such, when it says, that, upon certain contingencies, one-half of the real estate of the wife shall descend to him as his exclusive estate forever. An heir is one who inherits. He takes an estate in land from another by descent, as distinguished from a devisee, who takes by will. He is one upon whom the law casts the estate immediately upon the death.
It is strenuously objected, that the husband can not be regarded as an heir because the wife died testate; and that the statute makes him an heir only in case of intestacy. The same objection would apply to the brothers and sisters who are contesting the distribution of the surplus; for they could only be heirs-at-law, upon the death without children and without a will. This objection, too, amounts to the assumption, that the will has disposed of the land in a different manner from what the law would do.
The will devised the land, but...
To continue reading
Request your trial
-
Laisure v. Richards
...Ohio St. 57, 70 N. E. 894;Walker v. Webster, 95 Va. 377, 28 S. E. 570;Ramsey v. Stevenson, 34 Or. 408, 56 Pac. 520, 57 Pac. 195;Richards v. Miller, 62 Ill. 417. Appellee, on the other hand, contends that the testator, by his said will, evidenced an intention to provide for a per stirpes rat......
-
Gehlbach v. Briegel
...(Smith-Hurd Ann. St. c. 39, § 1 et seq.), must be interpreted according to its strict technical meaning. Cook v. Sober, supra; Richards v. Miller, 62 Ill. 417;Rawson v. Rawson, 52 Ill. 62. I cannot concur in the statement in the opinion that ‘the rule in Shelley's Case does not apply where ......
-
Lydick v. Tate
...v. Roberson, 297 Ill. 321, 130 N.E. 774;Alexander v. Northwestern Masonic Aid Ass'n, 126 Ill. 558, 18 N.E. 556,2 L.R.A. 161;Richards v. Miller, 62 Ill. 417;Rawson v. Rawson, 52 Ill. 62. ‘Heirs,’ in the legal meaning of the term, are those persons, whoever they may be, upon whom the law, at ......
-
Wooley v. Hays
...Laisure v. Richards, 103 N.E. 679; Ramsey v. Stephenson, 34 Ore. 408, 56 P. 520; Walker v. Webster, 95 Va. 377, 28 S.E. 570; Richards v. Miller, 62 Ill. 417; Hill v. Bowers, 120 Mass. 135.] The rule illustrated by the decision of this court in Records v. Fields 155 Mo. 314, 55 S.W. 1021; su......