Smith v. Shepard

• Decision Date: 15 February 1939
• Docket Number: No. 24818.,24818.
• Citation: 19 N.E.2d 368,370 Ill. 491
• Parties: SMITH et al. v. SHEPARD et al.
• Court: Illinois Supreme Court

370 Ill. 491

19 N.E.2d 368

SMITH et al.

v.SHEPARD et al.

No. 24818.

Supreme Court of Illinois.

Feb. 15, 1939.

Suit by Merlin Smith and others against Mabel L. Shepard, Adah Laura Zilm Mattice and others to obtain an interpretation of the third clause of a will of Frederick Zilm, deceased, and the foreclosure of a trust deed. From an adverse decree, the last-named defendant and others appeal.

Reversed and remanded with directions.Appeal from Circuit Court, Marshall County; Joseph E. Daily, judge.

Paul N. Holtgreve and Todd, Arber, Pendarvis & Anderson, all of Peoria (Robert D. Morgan, of Peoria, of counsel), for appellants.

Wallace J. Black, Clyde M. West, Glen J. Cameron, and George W. Hunt, all of Peoria (Kenneth W. Black, of Peoria, of counsel), for appellees.

GUNN, Justice.

Fred Zilm died in 1915 leaving a last will and testament. Item 2 of the will provided: ‘To my beloved wife, Fredericka Zilm, if she survives me, I will, devise and bequeath all of my estate both real and personal which shall remain after the payment of my funeral expenses and the just claims against my estate, to have and to hold and the use, control, income and profits thereof to have and enjoy, for and during her natural life.’ Item 3 provided: ‘It is my will that upon the death of my said wife, all of my estate then remaining shall be divided equally among my children, share and share alike, the descendants of any deceased child to take the parent's share.’

Fred Zilm left him surviving his widow, Fredericka, and his children, nine in number, one of whom was named Awald Zilm. The widow occupied the lands as life tenant until her death on November 19, 1931. On September 12, 1921, Awald Zilm and his wife, Mabel, now Mabel L. Shepard, executed a trust deed to John S. Thompson upon a one-ninth interest in the land devised by the father, to secure a loan of $5300. On January 8, 1923, Awald Zilm and wife negotiated an additional loan of $2,500, secured by a second trust deed to John S. Thompson upon the same land. The debts were evidenced by six notes, all of which became due March 1, 1927. Awald Zilm died intestate April 25, 1928 (before the death of his mother) leaving surviving Mabel L. Zilm, his widow, and three children, the appellants, Adah Laura Zilm Mattice, Walter Vernon Zilm and Lester Awald Zilm, his only heirs and descendants. On July 13, 1928, Mabel L. Zilm filed in the office of the recorder of deeds a written election to take in lieu of dower a one-third in fee of each parcel of real estate owned by Awald Zilm, including his supposed one-ninth interest in the real estate devised by the will of Frederick Zilm. On July 28, 1934, the owners of the notes secured by the first trust deed, together with the trustee, filed a suit in the circuit court of Marshall county, Illinois, praying for an interpretation of the third clause of the will of Frederick Zilm and setting forth the execution of the two trust deeds, making defendants the holders of the notes under the second trust deed, and all other necessary parties in interest, and further praying for a foreclosure of the first trust deed.

The specific dispute as to the interpretation of Frederick Zilm's will, as disclosed by the complaint and answer, arises from a claim of plaintiffs that Awald Zilm took an indefeasible interest in the estate of Frederick Zilm, subject only to the life estate of Fredericka Zilm. The appellants, children of Awald Zilm, claimed that Awald Zilm took a remainder in fee, which, whether vested or contingent, was a base or determinable fee subject to being divested by an executory devise over to themselves as descendants of Awald Zilm, if his death should occur prior to the death of the widow, and further praying that the trust deeds, and the election of Mabel L. Zilm (now Shepard) to take a fee simple interest in said real estate in lieu of dower, be canceled. A decree was entered by the court finding Awald Zilm, under item 3 of the will of the father, was vested with a fee simple title to an undivided one-ninth interest in the lands of which Frederick Zilm was seized at the time of his death, subject to the life estate of Fredericka Zilm, and that Mabel L. Zilm (now Shepard),the widow of Awald Zilm, by reason of her election not to take dower, became vested in fee of an undivided three eighty-firsts of the land left by Frederick Zilm, and the three children of Awald Zilm each became seized of an undivided two eighty-firsts of said real estate, all subject to the life estate of Fredericka Zilm, and that, therefore, the interest of Awald Zilm became liable for the payment of his debts and accordingly ordered the one-ninth interest in certain described real estate left by the said Frederick Zilm to be sold to satisfy the unpaid indebtedness. From that decree this appeal is taken.

There can be no doubt that a freehold is necessarily involved in a decision of this case. Wright v. Logan, 364 Ill. 33, 2 N.E.2d 904;Kagy v. Luke, 357 Ill. 512, 192 N.E. 559. The principal controversy is the proper construction to be given the third clause of the will of Frederick Zilm.

Two contentions are made-one, that Frederick Zilm intended his children, at the moment of his death, to have an indefeasible interest subject to his widow's life estate, and if it happened that the child should predecease him the descendants of such child would take in his place, and the other, that the indefeasible title would not be in a child or descendant of child until a time not fixed by the testator's death, but by an event which might happen before or after his death. It is, therefore, necessary for us to ascertain to what time the testator referred by the sentence ‘the descendants of a deceased child to take the parent's share,’ because, if he referred to a child dying before himself, a different estate is created than one that would arise if he referred to the death of a child occurring before the death of the life tenant.

The intention of a testator manifested in his will is determined in two ways. One, by ascertaining his actual meaning from the words employed, to which all rules of construction give way, and the other, by finding his presumed intention gathered by the application of rules of construction applicable to all cases where the meaning is obscure, doubtful or uncertain. The general rule of ascertaining the time ‘of death’ in a will as fixing a time for an estate to take effect, has been frequently announced in the following language: ‘Where there is a devise simpliciter to one person and in case of his death to another, there being no contingent or doubtful circumstances connected with such death, the testator will be presumed to intend a death preceding his own, but if the devise over is to take effect in case of the death of the first taker under circumstances which may or may not take place, the devise over, unless controlled by other provisions of the will, will take effect upon the death of the first taker under the circumstances specified, either before or after the death of the testator. Thus, when a gift over is preceded by a particular estate, the gift over will usually take effect if the contingency happens at any time during the period of the particular estate, and in such case death without issue has uniformly been held to mean death before the death of the life tenant unless the will shows that the testator intended to refer to a later date than the termination of the life estate.’ Johnson v. Boland, 343 Ill. 552, 175 N.E. 794, 796;Clark v. Leavitt, 330 Ill. 350, 161 N.E. 751;Risser v. Ayers, 306 Ill. 293, 137 N.E. 851;Morris v. Phillips, 287 Ill. 633, 122 N.E. 831;Fulwiler v. McClun, 285 Ill. 174, 120 N.E. 458. This statement of the rule involved has been employed to ascertain the ‘time of death’ referred to by a testator in the following situations:

(1) Where, by will, an estate is devised to one person simpliciter, and in case of his death to another, the contingency of ‘his death’ refers to the death of the devisee during the lifetime of the testator, and such devisee has an absolute estate in fee simple if he survives the testator. Evans v. Van Meter, 320 Ill. 195, 150 N.E. 693;De Haan v. De Haan, 309 Ill. 323, 141 N.E. 184;Williamson v. Carnes, 284 Ill. 521, 120 N.E. 585;Tomlin v. Laws, 301 Ill. 616, 134 N.E. 24, 26 A.L.R. 606;Kohtz v. Eldred, 208 Ill. 60, 69 N.E. 900;Fishback v. Joesting, 183 Ill. 463, 56 N.E. 62;Knight v. Knight, 367 Ill. 646, 12 N.E.2d 649.

(2) Where, by will, an estate is devised to one person, and in case of his death to another, if the contingency of ‘his death’ is coupled with a condition such as ‘without issue,’ ‘without heirs,’ ‘without heirs of his body,’ ‘without husband or wife,’ or similar conditions, making the contingency upon which the estate vests, in itself uncertain, the devise over to the ultimate beneficiary takes effect upon the death of the first taker, under the circumstances indicated, at any time, whether before or after the death of the testator. Liesman v. Liesman, 331 Ill. 287, 162 N.E. 855;Millikin Nat. Bank v. Wilson, 343 Ill. 55, 174 N.E. 857, 75 A.L.R. 117; Risser v. Ayers, supra.

(3) There is another class of cases where the devise is not immediate but is of a future interest to take effect in possession upon a termination of an intervening particular estate. In such case, unless the will shows the testator intended to refer to a different date than the termination of the particular estate, the rule is that the gift over will take effect if the contingency happens at any time before the termination of the particular estate, and death without issue means death without issue before the termination of the particular estate. Lachenmyer v. Gehlbach, 266 Ill....