Smith v. Winsor

• Decision Date: 02 June 1909
• Citation: 88 N.E. 482,239 Ill. 567
• Parties: SMITH et al. v. WINSOR et al.
• Court: Illinois Supreme Court

239 Ill. 567

88 N.E. 482

SMITH et al.

v.WINSOR et al.

Supreme Court of Illinois.

April 23, 1909.

Rehearing Denied June 2, 1909.

Appeal from Superior Court, Cook County; Farlin O. Ball, Judge.

Suit by Ira A. Smith and others against Albert W. Winsor and others. From a decree pro confesso for want of answer after overruling a demurrer to the bill, defendants appeal. Reversed and remanded.Wilson, Moore & McIlvaine and Randall W. Burns (N. G. Moore, of counsel), for appellants Albert W. Winsor and others.

Simeon Straus and Ira E. Straus, for appellants Jacob M. Schimberg and others.

Musgrave, Platt & Lee, for appellees.

This is an appeal by Albert W. Winsor and others from a decree of the superior court of Cook county. The court overruled their demurrer to a bill for partition filed by Ira A. Simth and others, appellees, in that court. Appellants elected to stand by their Ira A. Smith and others, appellees, in that against them pro confesso for want of answer.

It appears from the bill that Augustus W. Winsor, Jr., late of the city of Chicago, died testate on or about January 13, 1904; that at the time of the execution of his last will and at the time of his decease he was a resident of this state, seised in fee simple of certain real estate in the city of Chicago and owner of a considerable amount of personal property; and that his will was duly admitted to probate in Cook county on June 16, 1904. The will, after providing for the payment of the testator's debts and the erection of a monument, contained the following provisions:

‘Third. I give, devise and bequeath to my dear wife, Ella A. S. Winsor, in case she shall survive me, all of my real estate and all my personal property that I shall die seized or possessed of at the time of my death, wherever situated and however described, to have and to hold the same for and during her natural life, with full and complete power, however, to sell and convey all or any part of such real estate or personal property for such price or consideration as she shall deem adequate, and to re-invest the proceeds of such sale or sales in other real estate, or to loan the same, or to use and employ the same, or any part thereof, in any other way she shall desire for her comfort or advantage, or, in her discretion, to use or dispose of the same for such charitable purposes as she shall deem worthy; at and upon her death the remainder of said estate, if any, to descend to my heirs-at-law in the proportion as designated and provided by the statutes of the state of Illinois. The purchaser of any such real estate or personal property shall not be required to see to the use or application of such purchase money, nor shall my said wife be required or obligated to account to anyone for the use or disposition of such estate or any part thereof, or the proceeds arising from any sale thereof.

‘Fourth. I will and direct that in case my wife shall not survive me, then and in that case all of my estate, both personal and real, wherever situated and however described, subject to the directions made in the first and second clauses hereof, shall descend to my heirs-at-law in the proportion designated and provided in the statutes of the state of Illinois.’

The deceased was without descendants, but he left surviving him Ella A. S. Winsor, his widow, two brothers, a sister and two nephews, sons of a deceased brother, his only heirs at law. One of the brothers has since departed this life testate, devising his interest in the realty of Augustus W., Jr., to the sister. The remaining brother, the sister, said nephews, with certain others, were made defendants. About two weeks after the death of Augustus W., Jr., his widow died intestate, without descendants and without having executed any of the powers conferred upon her by the will. She left surviving her as her only heirs at law Ira A. Smith, Winfield S. Smith, and Henry C. Smith, her brothers. The latter has since died, and all of his property passed under his will to his widow, Zerelda Smith. The two brothers surviving and the widow of Henry C. were complainants. By their bill they claim through the widow of Augustus W., Jr., a one-half interest in all of the real estate owned by him at the time of his decease and seek partition.

Appellees' position is that by the term ‘heirs at law’ the testator included his wife; that she was given a life estate (with certain powers over the fee) in his real property, and, subject to that life interest, a vested remainder in the one-half of his real estate, which vested remainder, upon her death intestate, passed to her heirs at law, making them the owners of one-half of the real estate of which the husband died seised. It is contended by appellants, who were defendants to the bill, that Ella A. S. Winsor took only a life estate (with certain powers over the fee) in the real estate of the deceased; that it is clearly manifest from the will that the intention of the testator in using the term ‘heirs at law’ was to designate heirs of his blood and exclude his wife, so that, subject to her life estate, all his real estate passed to his heirs who were of his own blood; and that the court erred in overruling the demurrer.SCOTT, J. (after stating the facts as above).

The question is: What intention of the testator is evinced by the words used in his will?

These propositions are clear:

First. The widow took a life estate in all the property of the deceased, with a limited power to dispose of the fee or corpus of the property.

Second. The persons whom the testator designated in the third clause of his will by the words ‘my heirs at law’ took a vested remainder in all his property, which was liable to be defeated, in whole or in part, by the exercise of the power of disposition possessed by the widow.

Third. Upon the death of a man who is a resident of Illinois without descendants, leaving a widow, and being at the time of his death possessed of real...