Straw v. Barnes

• Decision Date: 20 June 1911
• Citation: 95 N.E. 471,250 Ill. 481
• Parties: STRAW et al. v. BARNES et al.
• Court: Illinois Supreme Court

250 Ill. 481

95 N.E. 471

STRAW et al.

v.BARNES et al.

Supreme Court of Illinois.

June 20, 1911.

Appeal from Circuit Court, Carroll County; Oscar E. Heard, Judge.

Suit by Reuben B. Straw against Frank J. Barnes and others for the partition of real estate. From a decree of partition excluding certain of defendants, they appeal. Reversed and remanded.

William N. Cronkrite and Joseph H. Vincent, for appellants.

Cook & Cook and John R. Connell, for appellees.

HAND, J.

This was a bill in chancery filed by Reuben B. Straw in the circuit court of Carroll county against the widow, brothers, sisters, nephews, and nieces and grandnieces of Nathaniel H. Straw, deceased, his brother, for the partition of certain real estate situated in Carroll county of which Nathaniel H. Straw died seised. Answers and replications were filed and the cause was referred to a master to take the proofs, and the court entered a decree finding that the brothers and sisters of said Nathaniel H. Straw, deceased, who survived him, took by devise from the testator all of the real estate of which he died seised, with the exception of the real estate which was devised to the widow and one small tract of land which he had purchased subsequent to the date of the will, which was held to be intestate property, and entered a decree for the partition thereof among said surviving brothers and sisters, and the appellants have prosecuted this appeal.

The facts involved in this controversy, in brief, are as follows: Nathaniel H. Straw was a justice of the peace and retired farmer who had lived in Carroll county for many years and had accumulated a considerable estate, consisting, at his death, of real and personal estate of about the value of $30,000. On the 11th day of December, 1893, he executed a holographic will, which, omitting the formal parts, reads as follows:

‘First-I order and direct that my executors hereinafter named pay all my just debts and funeral expenses as soon after my decease as conveniently may be.

‘Second-After the payment of such funeral expenses and debts, I give, devise and bequeath to my wife, Susan E. Straw, the house where we live, with all in the house, of every kind and nature, except the money and notes, and the east half of the north-east quarter section 14, town 25, range 6.

‘Third-The west half of the north-east quarter section 14, town 25, range 6, to my brothers and sisters or their heirs; also the house and lots in Shannon & Bradshaw's addition to the village of Shannon, being lots (1) one and (4) four in block 4, and also lot (3) three, in block (9) nine, same addition; then $2,000 to my brothers and sisters or their heirs; then out of the balance, when collected, my wife is to have one-half, the other half to my brothers and sisters or their heirs.

‘Lastly, I make, constitute and appoint Reuben B. Straw and Susan E. Straw, my wife, to be executors of this my last will and testament, hereby revoking all former wills by me made.’

The testator died on the 11th day of January, 1910, whereupon said will was admitted to probate in the county court of Carroll county, and Reuben B. Straw qualified as executor. At the time of his death Nathaniel H. Straw left him surviving Susan E. Straw, his widow, Reuben B. Straw, Joseph F. Straw, and Emma Sherretts, his brothers and sister of the full blood, Sarah Tures, Lillian Butterfield, Delmar Straw, John Straw, and Mabel Buckingham, his brothers and sisters of the half blood, Ella Shoals, Harry Straw, and Ethel Williams, the son and daughters of William H. Straw, a brother of the full blood, who had predeceased the testator by 25 years, Minerva E. Beaver, Frank Barnes, Robert S. Barnes, and Senada G. Linder, the sons and daughters of Lydia Barnes, a sister of the full blood, who had predeceased the testator about 22 years, and Luella McBride and Rosella McBride, the daughters of Etta McBride, a deceased daughter of William H. Straw, deceased, who died three years prior to the death of Nathaniel H. Straw, as his sole and only heirs at law.

The sole question in this case is as to the proper interpretation and construction to be placed upon the words ‘my brothers and sisters or their heirs,’ found in the third paragraph of the will. The eight brothers and sisters-three of the full blood and five of the half blood-were all living at the date of the will and at the date of the death of the testator, and the trial court held that the words ‘my brothers and sisters or their heirs,’ found in the third paragraph of the will, only included the brothers...