Voellinger v. Kirchner

• Decision Date: 16 December 1924
• Docket Number: No. 16275.,16275.
• Citation: 145 N.E. 638,314 Ill. 398
• Parties: VOELLINGER et al. v. KIRCHNER et al.
• Court: Illinois Supreme Court

314 Ill. 398

145 N.E. 638

VOELLINGER et al.

v.KIRCHNER et al.

No. 16275.

Supreme Court of Illinois.

Dec. 16, 1924.

Error to Circuit Court, St. Clair County; George A. Crow, Judge.

Action by Christine Voellinger and others against Dina Kirchner and others. Decree for plaintiffs, and defendants bring error.

Affirmed.

Barthel, Farmer & Klingel, of Belleville, for plaintiffs in error.

P. K. Johnson, of Belleville, for defendants in error.

THOMPSON, J.

Jacob Voellinger died testate, possessed of certain real estate situated in St. Clair county. The following are the provisions of his will material to a decision of this case:

‘First-I give and bequeath unto my wife, Christine Voellinger, all my estate, real and personal, * * * for the use of herself and such of my unmarried daughters as shall remain with her and as long as they or either of them, remain with their said mother, but in case my said daughters shall make and take up other homes for themselves and leave their mother, then in that case my wife shall have an annuity of $600 per year, payable to her in semiannual installments. I further direct, however, that in case, by reason of sickness or any other cause, my wife should require more than $600 per annum, a sum shall be added to said sum which shall be sufficient for the comfortable support and maintenance of my said wife.

‘Second-Subject to the provisions in clause 1 for my wife, I give and devise all my real estate to my own children and to my stepson, Joseph Voellinger, the son of my wife, and to my granddaughter, Martha V. Mental, daughter of my deceased daughter, Elizabeth Mental, to be equally divided between them, share and share alike. * * *

‘Third-My real estate devised to my children, my granddaughter and my stepson shall not be sold until after the death of my wife, and shall not become their property so as to be by them possessed or enjoyed, until after the death of my wife. * * *

‘Fifth-I further will and devise that upon the settlement of the administration of my estate by my executors herein named in another clause of this will, that my friend Lucius D. Turner, son of my deceased friend Lucius D. Turner, be and I hereby appoint him trustee to take charge of all personal assets and real estate shown by such settlementto belong to my estate, and he is hereby authorized to invest and keep invested such personal assets and collect the rents of the real estate, and after payment of the taxes, insurance and necessary repairs, to pay the net proceeds to my wife, in accordance with the provisions of clause 1 of this will, during her natural life, and after her death to distribute the assets in his hands to the persons entitled thereto, as is provided in clause 2 of this will. * * *’

The widow and three of testator's children filed a bill in the circuit court of St. Clair county for the partition of the lands and made the other children and descendants of deceased children defendants. A demurrer to the bill was overruled and a decree entered in accordance with the prayer of the bill. The cause is here on writ of error.

Plaintiffs in error contend that the decree should be reversed because the interests of the parties are not properly set out in the bill, and because, under the provisions of the will, the lands are not subject to partition until the determination of the particular estate. The bill states, and the decree holds, that under the will the widow took a life estate in the lands and the children a vested remainder in fee.

Plaintiffs in error contend that the estate of the widow is not a life estate, but that she had an estate subject to such contingencies that it may be more or less than a life estate. They contend that the daughters living with the widow have an interest in the income from the property, and that the widow is under obligation to maintain them, as long as they live with her. It is further contended that, under the will, the corpus of the estate may be consumed to provide for the widow and the daughters...