Siddons v. Cockrell

• Decision Date: 21 January 1890
• Citation: 23 N.E. 586,131 Ill. 653
• Parties: SIDDONS v. COCKRELL et al.
• Court: Illinois Supreme Court

131 Ill. 653

23 N.E. 586

SIDDONS

v.COCKRELL et al.¹

Supreme Court of Illinois.

Jan. 21, 1890.

Appeal from circuit court, Peoria county.

Bill for partition, brought by Mary Siddons, Theodore O. Siddons, Jackson L. Gee, and Ida W. Gee, by her guardian, Jackson L. Gee, against Nancy M. Cockrell, Arcilus Cockrell, Abraham L. Hervey, Edward H. Hervey, Susan O. Nye, William Nye, Christiana Foster, Ellen Graham, Charles Cornwell, H. D. Broer, Tinna Mannott, Denny Short, Alfred S. Wilson, William Pullen and wife, James Pullen, and James P. Yates.

Frank R. Henderson, for appellant.

McCulloch & McCulloch, for appellee Corn well.

Judson Starr, for other appellees.

SCHOLFIELD, J.

The second clause of the last will and testament of William Y. Hervey reads as follows. ‘I will, devise, and bequeath to my beloved wife, Nancy Martha, during and so long as she remains my widow, the net use and control of all the real estate and personal property of which I may die seised, wherever the same may be situated or found, for the support of herself and my children. Should she marry, from and after such marriage she shall have and control only one-third in value of the real estate, and one-third of the personal property then remaining, absolute. Should she survive all my children, they having died without issue, I will, devise, and bequeath all my real estate and personal property to be hers, her heirs and assigns, forever. But in case of the death of my wife, leaving any of my children surviving, I will, devise, and bequeath to them all of my estate in equal proportions, share and share alike; the heirs of any of my children taking their deceased parent's share. The personal property I devise in the same manner I have devised the real estate, and subject to the same order of distribution.’ The testator was the owner of several hundred acres of valuable lands, and of a large amount of personal property, at the time of his death. His widow named in the will, and six children, survived him. After the death of the testator the widow married again. One of the children died in infancy, and before the subsequent marriage of the widow. Another one of the children married, had a child, who is still living, born to her, and after the birth of such child, and the subsequent marriage of the widow, conveyed to another her interest in the testator's real estate, and thereafter died intestate. The other children are still living.

The questions before the court below were: (1) Does the widow take a fee or a life-estate, after her marriage, in the one-third then given her in the real estate? (2) Was a fee vested in the children which could pass by descent immediately upon the death of the testator? The court below found that the widow took a life-estate only in one-third of the real estate, after her marriage, and that a fee was vested in the children immediately upon the testator's death, which passed, upon the death of the child dying in infancy, and before the subsequent marriage of the widow, to the heirs at law of such child. The appellant contests the first of these rulings; and these appellees who are children of the testator contest the last. The other appellees insist upon the correctness of both rulings.

1. Counsel for appellant argue that by the use of the words ‘from and after such marriage she shall have and control only one-third in value of the real estate and one-third of the personal property then remaining, absolute,’ the testator clearly intended to vest a fee in the real estate in his widow; that ‘have’ means ownership; ‘from and after,’ being unlimited or qualified by other words, mean ‘thenceforth forever;’ and that ‘absolute’ refers to both the real and the personal estate, and, applied to the real estate, means a fee-simple, in contradistinction to a life-estate. If nothing but these words were to be considered in connection with the devises, there would be much force in the argument. But the familiar rules of construing wills require, if it can be necessarily given, such a construction as shall give force and effect to every word and clause, and, if a prior and a subsequent clause are repugnant, that the prior clause shall be restrained or modified by the subsequent clause. Walker v. Pritchard, 121 Ill. 221, 12 N. E. Rep. 336. It will be observed that, in clauses subsequent to that referred to and relied upon by the counsel, the testator assumes to devise all of his real estate in fee to his children or to his widow. It is, of course, impossible to give one-third of his real estate in fee to his wife, and all of his real estate in fee to his children; and yet the word ‘all,’ in this connection, is unqualified, expressly or impliedly, by any modifying word. But a devise of land, without the use of the word ‘heirs,’ or other words necessary at common law to pass a fee, is only to be construed as a devise of a fee when it does not appear from the entire will that a...