Riddle v. Killian

• Decision Date: 02 June 1937
• Docket Number: No. 23945.,23945.
• Citation: 366 Ill. 294,8 N.E.2d 629
• Parties: RIDDLE v. KILLIAN et al.
• Court: Illinois Supreme Court

366 Ill. 294

8 N.E.2d 629

RIDDLE

v.KILLIAN et al.

No. 23945.

Supreme Court of Illinois.

Feb. 18, 1937.

Rehearing Denied June 2, 1937.

Suit by Harry E. Riddle, trustee in bankruptcy of William A. Killian, against William A. Killian and others, for the construction of the will of Michael Killian. From an adverse decree, the plaintiff appeals.

Affirmed.Appeal from Circuit Court, McLean County; Chalmer C. Taylor, judge.

Bracken, Radliff, Livingston & Murphy, of Bloomington, Lederer, Livingston, Kahn, Adler & Adsit, of Chicago, and Hoopes & Pefferle, of Springfield (Sigmund Livingston, of Chicago, and Thomas W. Hoopes, of Springfield, of counsel), for appellant.

Whitmore & Whitmore and Stone & Wright, all of Bloomington, for appellees.

WILSON, Justice.

A decree entered by the circuit court of McLean county construed the last will and testament of Michael Killian. From that decree, Harry E. Riddle, the trustee in bankruptcy of William A. Killian, a son of the testator, prosecutes this appeal.

Michael Killian, a resident of McLean county, died testate on January 1, 1913. He left surviving Maria Killian, his widow, and their five children, John J., Edmond J., and William A. Killian, Mary A. Killian Kelley and Katherine Dee, his only heirs at law. Killian's last will and testament was proved and admitted to record by the county court of McLean county. By the third section of his will Michael Killian devised and bequeathed to his wife all of his real estate for her life, ‘it being my express intention that she shall have full power and control over all of said lands, the same as if she owned them absolutely during her entire life, and it shall be her duty to keep the same in good repair and condition and to pay all taxes on the same.’ The fifth section is as follows: ‘It is my will that at the death of my beloved wife the following described land, * * * in McLean county, Illinois, containing in all two hundred (200) acres, more or less, shall go to and vest in my son, William A. Killian to whom the above land is given, devised and bequeathed, with this express condition, namely: That he shall not sell nor convey the same during his life time, but he may during his life time, and after the death of my said wife, make such conveyance of the same as he may desire; said conveyance, however, not to take effect until after the death of the said William A. Killian, and with this further express condition, namely: That the said William A. Killian shall pay on the first day of June, of each and every year after the death of myself and my wife, the sum of three hundred ($300) dollars to my son, John J. Killian during his lifetime and the land hereby devised to my said son, William A. Killian, is hereby charged with the payment of the above sums as herein provided. In case said William A. Killian shall convey or attempt to convey the said land or any part thereof contrary to the provisions of this will, his title thereto shall be deemed forfeited, and the land granted to him shall revert to and become a part of my estate. Said William A. Killian after coming into possession of said land shall keep the buildings and improvements on the same in good condition and repair and pay all taxes on the same.’

By the sixth section of the will 225 acres of land in McLean county was devised in identical language to another son, Edmond J. Killian, with the exception that this tract was charged with the payment of $300 annually to the testator's daughter, Katherine Dee, after the deaths of the testator and his wife. The fourth section devised another parcel of land to Mary A. Killian Kelley and charged the land with the payment of $100 annually to Katherine Dee and a like sum to John J. Killian. The seventh section then provided for the payment of $400 annually to Katherine Dee after the deaths of the testator and his wife, $300 to be paid each year by Edmond J. Killian and $100 by Mary A. Killian Kelley, as provided by the fourth and sixth sections, so long as Katherine Dee should live. The eighth section, similar to the seventh, provides: ‘I give, devise and bequeath to my son, John J. Killian, the sum of four hundred ($400) dollars to be paid annually to him in person on the first day of June in each and every year after the death of myself and my beloved wife, and so long, as the said John J. Killian shall live. And it is my will that the said sum of four hundred ($400) dollars be paid as follows: Three hundred ($300) dollars each year by my son, William A. Killian, and one hundred ($100) dollars each year by my daughter Mary A. Killian as hereinbefore provided.’

The ninth section of the will declares: ‘It is further my will that in case of the death of my son, William A. Killian, his widow, if he should leave a widow, shall have the use of eighty (80) acres of the land herein bequeathed to the said William A. Killian, to be selected by her, for her use during her natural life only, and in that case she shall keep the buildings on the same in good condition and repair, and pay the taxes assessed against said eighty acres; and shall also pay her proportion, based upon the number of acres, of the annuity charged against said land.’ The same provision is made for the widow of Edmond J. Killian by the tenth section.

The eleventh section of the will provided further: ‘It is my will that in case of the death of Mary A. Killian, William A. Killian or Edmond J. Killian that the following provisions be observed and binding upon my estate: First-Should either of these three named children did prior to the death of my said wife leaving child or children, of their own, then the child or children of the one so dying, shall take the full share of such deceased child, subject to all the conditions of this will. Second-Should either of my said three children die prior to the death of my said wife leaving no child or children, then the property hereby devised and bequeathed to said child shall go to and become the property of the remaining of said three children jointly, subject to the foregoing provisions as to the widows of William A. Killian and Edmond J. Killian. The three children herein referred to are Mary A. Killian, William A. Killian and Edmond J. Killian.’ The will contained no residuary clause.

William A. Killian was adjudged a bankrupt on January 6, 1933. His bankruptcy schedules listed the land described in the fifth section of his father's will but did not state the quality or quantity of title which the bankrupt claimed to own in the property. Pursuant to the order of the referee in bankruptcy of the District Court of the United States for the Southern District of Illinois, Southern Division, the trustee in bankruptcy initiated the present litigation for the purpose of seeking a judicial construction of the will of Michael Killian. On the day that William A. Killian was adjudicated a bankrupt, and at the time the trustee filed his complaint, the widow and the five children of the testator were living. The children and, in addition, the wife of William A. Killian and their four children, all of whom had attained their majority, were made parties defendant. The widow, Maria Killian, was eighty-seven years of age at the time of filing the suit.

Other facts disclosed by the pleadings pertinent to the issues involved are: John J. Killian was dissatisfied with the annuity of $400 bequeathed to him, the payments to commence only after the deaths of the testator and his wife. He threatened to contest the will. To avoid this, an agreement was entered into about a year after Michael Killian's death by which William and Edmond agreed to pay John $400 per year during the lifetime of their mother. The contract provided that these annual payments to John should be made a charge upon the land devised to his brothers to the extent of $200 each.

The present controversy concerns the construction of the fifth, eighth, ninth, and eleventh sections of the will. The decree construed the will, so far as pertinent to this inquiry, as a devise to William A. Killian of a contingent interest in the land described in the fifth section of the will, such interest to vest only if he survives his mother, in which event he will become vested with an estate for life with the power to convey, limited, however, by the condition set up in the fifth section of the will that such conveyance of the fee shall not take effect during the lifetime of William, and subject to the charge of John J. Killian, for the payment of $200 annually until the death of Maria Killian and $300 per year thereafter, as provided in the eighth section of the will. The chancellor accordingly found that on January 6, 1933, the day on which William A. Killian was adjudged a bankrupt, he had no interest in the farm which was subject to seizure or sale upon execution, or that could have been otherwise transferred.

To obtain a reversal of the decree the plaintiff makes the contention, among others, that under the fifth and eleventh sections of the will William A. Killian took a vested remainder in fee and, conversely, that his interest is neither contingent nor a life estate. In determining whether the interest of the bankrupt, William A. Killian, on January 6, 1933, in the property described in the fifth section of the will of Michael Killian was vested or contingent, certain cardinal canons of testamentary construction as well as established rules of property are applicable. The purpose of construing a will is to give it the meaning and interpretation which the testator intended, and his intention, as ascertained from a consideration of the entire will, will be carried out whenever it can be done without violating some established rule of law or public policy. Johnson v. Boland, 343 Ill. 552, 175 N.E. 794;Liesman v. Liesman, 331 Ill. 287,162 N.E. 885;Jones v. Miller, 283 Ill. 348, 119 N.E. 324, 327;Little v. Bowman, 276 Ill. 125, 114 N.E. 519. Whether a remainder is vested or contingent...