Spicer v. Moss, 31886
| Decision Date | 24 May 1951 |
| Docket Number | No. 31886,31886 |
| Citation | 409 Ill. 343,100 N.E.2d 761 |
| Parties | SPICER v. MOSS et al. |
| Court | Illinois Supreme Court |
George V. Dole, of Paris, for appellants Hilah Moss Steele and others.
Schuyler, Richert & Stough, of Chicago, and Cotton, Massey, Anderson & Gibson, of Paris (Daniel M. Schuyler, of Chicago, Robert F. Cotton, Raymond I. Massey, and Earl R. Anderson, of Paris, of counsel), for appellant E. Paul Spicer.
Craig & Craig, of Mattoon, for appellees.
Appellant E. Paul Spicer filed a complaint in the circuit court of Edgar County to remove a cloud from the title to certain land in that county, which he claimed to own. The defendants are the heirs-at-law of William H. Moss, Sr., who died in 1912, and the persons who at the present time are interested in said land either as his heirs or interested under the terms of a deed made by the said William H. Moss. Sr., dated November 27, 1911. The interests of the several parties defendant will be disclosed in the course of the opinion.
The instrument dated November 27, 1911, was a warranty deed from William H. Moss, Sr., and Priscilla Moss, his wife, purporting to convey certain real estate 'to Willella Moss Harris and to the heirs of her body if any such heirs survive her; if no heirs of her body survive her then to the heirs of the body of Frank L. Moss.' At the time the deed was made William H. Moss, Sr., had a wife, Priscilla; a son, Frank L. Moss; a son, William H. Moss, Jr.; and a daughter, Willella Moss Harris. William H. Moss, Sr., died January 9, 1912. He left a will, which did not affect this land, and which had no residuary clause. His survivors were the widow and the children named above. At that time William H. Moss, Jr., had living daughters, Adda W. Moss and Hillah Moss, now Hilah Moss Steele, and no wife. Frank L. Moss at that time had two children, Louise Moss, now Louise Shoaff, and a son Clarence C. Moss. The daughter, Willella Moss Harris at that time had no children, and was thereafter childless. At the present time Louise Shoaff, daughter of Frank L. Moss, has two living children, William Shoaff and Charlotte Shoaff; and Clarence C. Moss, son of Frank L. Moss, at the present time has three children living, Marcia Moss, Larry Moss, and William Moss. William H. Moss, Jr., died January 6, 1913.
After the death of William H. Moss, Jr., Adda W. Moss, his daughter, on December 16, 1916, executed a quitclaim deed for all of her interest in said property to Frank L. Moss. On January 15, 1917, Willella Moss Harris and her husband executed a warranty deed for all of her interest in said real estate to Zada M. Harris, and on January 16, 1917, Zada M. Harris executed a warranty deed for all of her interest in said property to Willella Moss Harris. These deeds were executed for the purpose of destroying the contingent remainders claimed to exist in said property. The reason said deeds were thought to have such effect was that, William H. Moss, Sr., having by said deed of November 27, 1911, left a portion of the interest in said land undisposed of, because of the possibility of a failure of the contingent remainders created thereby, his death caused a one-third interest in such reversion to vest in Willella Moss Harris, and hence the remainders were destructible by merging her life estate with her share of the reversion fee.
On April 18, 1940, Willella Moss Harris and her husband executed a quitclaim deed to The Edgar County National Bank of Paris, for the same premises, and the bank in turn leased the premises to Willella Moss Harris and her husband until 1990, or until Willella died. On November 21, 1942, the bank quitclaimed the same property to E. Paul Spicer. Willella Moss Harris died in March, 1950, and this suit followed to interpret the deed made by William H. Moss, Sr., and to determine the effect of the various deeds above mentioned. The spouses of the respective persons in interest are made parties, and also Dale Ross, as trustee in a trust deed to secure an unpaid loan on said property made by Clarence C. Moss and wife.
The circuit court decreed that the deed executed by William H. Moss, Sr., in November, 1911, created a life estate in Willella Moss Harris, with a contingent remainder in her issue, and an alternative contingent remainder over to the children of Frank L. Moss; that the deeds made to extinguish the contingent remainders in favor of 'the heirs of the body of Frank L. Moss' were ineffective, and that Louise Shoaff and Clarence C. Moss are the owners in fee simple of said real estate, subject to the trust deed in favor of Dale Ross, as trustee, and also continued in effect a receiver to collect the rents and profits and report to the court. This decree necessarily deprived Spicer of his freehold interest in the real estate, and denies the claim that Hilah Moss Steele has a fee in one sixth of the property described in the deed of November 27, 1911.
The controlling point to be decided in the first instance is a proper interpretation of the deed executed by William H. Moss, Sr., in November, 1911, and depending upon how that deed is construed, the ancillary question of the effect of the deeds made for the purpose of cutting off the future interests arising from the contingent remainders created by the deed of William H. Moss, Sr.
The deed of William H. Moss, Sr., made a grant to Willella Moss Harris, 'and to the heirs of her body,' and an alternative grant 'to the heirs of the body of Frank L. Moss.' The words 'heirs' and 'heirs of the body' have long had a well-settled meaning in real-estate law. They were words by which an estate in fee simple or fee tail was created at common law. While the effect originally given these words has been modified by section 6 of the Conveyances Act (Ill.Rev.Stat.1949, chap. 30, par. 5), the import of their use in deeds of conveyance has not changed. In AEtna Life Ins. Co. v. Hoppin, 249 Ill. 406, 94 N.E. 669, 671, we said: 'The word
In a case between the same parties, involving the same deed, tried in the Federal Court, a good explanation is given for the effect attributed to the use of the words 'heirs' or 'heirs of the body,' as follows: 'Under the English law of primogeniture no ancestor could leave surviving him more than one heir. If he left sons, the eldest was his heir. If daughters only, they took as one heir as coparceners. * * * 'Heirs' could not be taken as descriptive of the one person; it could only mean the indefinite succession from generation to generation. * * * 'Heirs of the body,' being usable only to create an estate in tail, could not be descriptive of coexistent persons who on the death of the donee for life could then answer as the heirs of his body, and whose estate would be defined by the added words 'their heirs and assigns' as a remainder in fee simple. * * * But in Illinois, and in this country generally, where the surviving children as tenants in common stand for the surviving eldest son, 'heirs' may have different meanings, just as under English law the singular form 'heir' might have different meanings. If there is no context, 'heirs' must be held to indicate the indefinite succession by inheritance, and Shelley's Case applies.' AEtna Life Ins. Co. v. Hoppin, 7 Cir., 214 F. 928, 932. The Illinois case was followed, and a great number of decisions from many different jurisdictions were cited, as following the same rule.
Cases giving the same meaning to the words 'heirs' or 'heirs of the body' are numerous, notable among which are Coogan v. Jones, 278 Ill. 279, 115 N.E. 877; Sauls v. Cox, 394 Ill. 81, 67 N.E.2d 187; Bibo v. Bibo, 397 Ill. 505, 74 N.E.2d 808; Beasley v. Beasley, 404 Ill. 225, 88 N.E.2d 435, all of which involve the construction of deeds. Likewise, the same result was announced in Lewin v. Bell, 285 Ill. 227, 120 N.E. 633, and Gridley v. Gridley, 399 Ill. 215, 77 N.E.2d 146, where like words were used in wills. This does not by any means exhaust the authorities supporting this generally recognized effect given to the use of such words, and an additional list of cases construing the words 'heirs of the body,' or 'bodily heirs' in like manner will be found cited in the opinion of Sauls v. Cox, 394 Ill. 81, 67 N.E.2d 187.
The effect at common law of the words 'heirs of the body' in a deed or in a will has, however, been altered by section 6 of the Conveyances Act. This section provides, in cases where a fee tail might be created by the grant, that in place thereof the first grantee shall be deemed to be seized for the natural life only, and the remainder pass to the deferred beneficiaries to whom the estate would fall upon the death of the first grantee in tial, according to the common law, by virtue of such grant. Where the first taker, at the time of the execution of the deed to one and the heirs of his body, has no children, it has been held that the first taker obtains a life estate, and the contingent remainder is to his or her unborn children, if, at the time of the execution of the deed, the grantee has no children. Lewin v. Bell, 285 Ill. 227, 120 N.E. 633; Hartwick v. Heberling, 364 Ill. 523, 4 N.E.2d 965. This principle is so well understood that it is unnecessary to...
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