Rose v. Hale

• Decision Date: 17 April 1900
• Citation: 56 N.E. 1073,185 Ill. 378
• Parties: ROSE v. HALE et al.
• Court: Illinois Supreme Court

185 Ill. 378

56 N.E. 1073

ROSE

v.HALE et al.

Supreme Court of Illinois.

April 17, 1900.

Appeal from circuit court, Fulton county; John J. Glenn, Judge.

Bill by Lucinda Hale and others against William Rose. From a decree for plaintiffs, defendant appeals. Affirmed.

John S. Winter and Harry M. Waggoner, for appellant.

M. P. Rice, T. C. Robinson, Chiperfield, Grant & Chiperfield, and Lucien Gray, for appellees.

BOGGS, J.

This is a bill in chancery filed by Lucinda Hale, Catherine Severns, Phedora Combs, and Mariah Cluney, appellees, for the partition of certain real estate, the title whereof formerly rested in one Reason Church, who died January 1, 1880. On the hearing the court construed the will of said Reason Church to invest a life estate only in the land sought to be partitioned, in Mariah Church, wife of the testator, and that the remainder in fee descended to the heirs at law of the said testator. The appellant, by this appeal, questions the correctness of the construction given said will by the court. He insists that the true construction of said will vested in the said Mariah Church the title to the lands in fee simple, subject to the condition she should not marry again, and defeasible on that condition. Said Mariah Church conveyed the land to the appellant, and died without having again remarried. The position of the appellant is that the fee-simple title to the said land rests in him.

The will of the deceased reads as follows:

‘I, Reason Church, of Isabel, Fulton county, and state of Illinois, do make and declare this my last will and testament, in manner and form to wit:

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

‘Second after the payment of my funeral expenses and debts I give devise and bequeath unto my beloved wife Mariah Church the farm on which we now reside, situate in said county and known and described as one hundred forty-five acres of the northwest quarter of section number thirty in township four north of range three east of the fourth principal meridian.

‘Thirdly all the live stock horses cattle sheep hogs by me now owned and kept thereon also all the household furniture wagons, carriages and all my farming implements and all my personal property not herein enumerated or otherwise disposed of whilst she remains my widow. But if she should marry then it is my will that she divide the farm and give each of my children an equal share after taking her thirds and lastly I hereby constitute and appoint my said wife Mariah Church executor of this my last will and testament.’

As to the true construction thereof it is said in the brief of appellant: ‘Any one who is acquainted with philology and grammatical construction of the English language, by reading said will will perceive its second and third clauses, as written, consist of three sentences. If ‘a sentence is the expression of a thought in words,’ as it has been defined, then a construction of this will would be: (1) An absolute devise in fee of the farm on which they resided to his wife; (2) a bequest of all his personal property to his wife so long as she remained his widow; and (3) a limitation to the devise in fee of his farm to the wife; if she should marry again, she should divide the farm equally among his children, ‘after taking her thirds.’ That part of the third clause of said will in which the testator attempts to bequeath his personal property to his wife ‘whilst she remains my widow’ is obviously a parenthetical phrase, intervening between the devise in the second clause of the will and the concluding part of the third, limiting that deivse to a third of the farm if his wife should marry, the remainder to be equally divided among his children. Certainly that intervening sentence could be omitted without destroying the meaning of the composition in which it is found, which is the usual test as to whether a phrase is parenthetical or not. By such transposition, and thus placing the first and third of said sentences in their apparent natural relation to each other, the intent of the testator in his will becomes clear and obvious,-that he intended to debase the devise of the fee of his farm to his wife from an absolute to a determinable fee, subject, however, to his wife's marrying again. The second clause clearly, in the first instance, was intended as a devise to his wife of an absolute fee to his farm; the first sentence of the third clause, which, by its position, should be taken as parenthetical, and considered as intended as a bequest of his personal property to his wife during her widowhood, and wholly disconnected with the devise in the second clause; and the second or concluding sentence of the third clause as intended as a limitation to the devise of the fee to the farm he had made to his wife in said second clause.' We agree with counsel for appellant that the unmistakable intention of the testator was to bequeath his live stock, etc., and all his personal property, to his wife ‘while she remained his widow.’ But we gather this intention by reading as one sentence that part of the will beginning with the word ‘second’ and concluding with the word ‘widow.’ It will be observed that, unless this part of the will is read as one sentence, there is no gift or bequest of the live stock, etc., and personal property; for, if the phrase relating to such personal property, etc., be regarded, as app...