Walker v. Pritchard

• Decision Date: 17 June 1887
• Citation: 121 Ill. 221,12 N.E. 336
• Parties: WALKER, Adm'r, and others v. PRITCHARD and others.
• Court: Illinois Supreme Court

121 Ill. 221

12 N.E. 336

WALKER, Adm'r, and others

v.PRITCHARD and others.

Supreme Court of Illinois.

June 17, 1887.

Appeal from Second district.

George C. Christian, Luther Lowell, and Duane J. Carnes, for John Walker and others, appellants.

H. A. Jones and A. B. Coon, for Reuben M. Pritchard and others, appellees.

SCHOLFIELD, J.

1. We held in Cheney v. Teese, 113 Ill. 444, that, although a freehold may have been involved in the litigation and the decree therein rendered, yet, where no objection is made to that part of the decree, an appeal from another part of the same decree, having no relation to the question of the freehold, but merely settling a matter of account, will not lie from the circuit court to this court, but must be taken to the appellate court. And so, if this appeal had been brought directly to this court, appellant would have been entitled to have had it dismissed; and therefore, if the motion in the appellate court to dismiss had been allowed, it would have been within the power of appellants to have prevented an appeal to any court. The theory of the decision in Cheney v. Teese, supra, is that where different parts of a decree relate to matters wholly independent of each other, so that the decision as to one part has no influence or bearing upon the decision as to the other part, they are severable, and, in effect, distinct decrees, and an appeal may consequently be made from either part without affecting the record as to the other part. When such an appeal is taken, manifestly the question of jurisdiction must be determined by the question affected by the decree, as was there held, and it would inevitably follow that cross-errors could not be assigned as to the part of the decree not brought before the court by the appeal.

2. The second clause of the will of Reuben Pritchard is as follows: ‘ Second. I give, devise, and bequeath to my beloved wife, Elotia Pritchard, in lieu of her dower, certain lots of land being in the county of De Kalb and state of Illinois, and described as lots two, the north-east quarter and east half lots one and two, the north-west quarter of section four, in township (38) north, of range (4) east, containing 168 and 20-100 of acres of land according to government survey. I appoint and fully authorize my wife, Elotia Pritchard, with full power and authority to sell and convey the title to the above-described lands at any time, and convert the avails to her own use and benefit; and also I further bequeath, during her natural life-time, one span of horses,-one an iron gray and one a bright bay; and two colts,-one black, and one bay, coming three years old; three cows; and all the household furniture now by me owned, and all the farming tools that are used and by me owned, on the premises that I now occupy; and other items not particularly named and disposed of in this will,-during her natural life as aforesaid; and, at the death of my said wife, all the property hereby devised or bequeathed to her as aforesaid, or so much thereof as may remain unexpended, to my two sons, Reuben M. Pritchard and Ethan A. Pritchard, and to their heirs and assigns, forever.’

The appellate court, per BAKER, J., speaking of this clause, said: ‘It is plain that, by the terms of this bequest, Elotia Pritchard was made legatee for life of the specific live-stock and chattel property mentioned therein, with remainder over to her step-sons. It was provided, however, that the sons should take, as such remainder-men, not the whole of the property absolutely, but it, or such of it as should be unexpended at the death of the life-tenant. None of the chattels left by Elotia Pritchard at her decease, and inventoried by her administrator, are identified as being the precise or specific articles of property that she took under the will as legatee for life. A life-estate in personal property gives the donee a right to consume such articles as cannot be enjoyed without consuming them, and to wear out by use such as cannot be used without wearing out. The 50 bushels of wheat and 100 bushels of oats were evidently intended by the testator for consumption on the farm; and the horses, cows, wagons, harness, farming utensils, and lumber intended for use on the farm; and presumably, during the 15 years that elapsed between the death of the testator and that of the legatee for life, the articles mentioned either died or were worn out, or used and consumed for legitimate farm purposes. It makes no difference that cows, heifers, steers, and calves appear in the inventory made by the administrator, for they are not shown to be the domestic animals that were given for life, or the increase from them. In the inventory of the estate of Reuben Pritchard, promissory notes and money on hand amounting in the aggregate to $850 are mentioned; but the first clause of his will directed that his funeral expenses and just debts should be paid, and we are unable to say, in the absence of proof, that there is any presumption that these notes and moneys, which were not specifically given by the will, were not used by the executors in payment of funeral expenses, debts, and costs of administration, but went to the legatee for life under the words, ‘and other items not particularly named and disposed of in this will,’ as a residuary bequest. But, even if such were the case, we think it is manifest from a consideration of the various provisions of the will, and in the light of the surrounding circumstances, that it was the intention of the testator that his widow should convert to her own use, and consume, if she deemed she had occasion so to do, the residue of moneys in her possession, whether on hand at his death or realized from the notes, and that the remainder-men should only have such portion thereof, if any, as remained unexpended at the time of her death. In our opinion, the decree of the court upon this part of the case should likewise be affirmed.

The more important question in the case is with reference to the devise of the 168 acres of land. The doctrine is that a will may create a life-estate, with power to sell and convey the fee, and limit a remainder after the termination of the life-estate. Kaufman v. Breckinridge, 117 Ill. 305, 7 N. E. Rep. 666, and cases there cited. In Hamlin v. United States Exp. Co., 107 Ill. 443, the supreme court laid down certain principal rules of construction as applicable to such cases as this, and cited a number of prior decisions of the court as authority therefor. These principal rules are: ‘The intention of the testator, if not inconsistent with the rules of the law, shall govern; and this intention is to be ascertained from the whole will and all its parts taken together. Every clause and provision, if possible, should have effect given to it according to the intention of the maker. A later clause of a will, when repugnant to a former provision, is to be considered as intending to modify or abrogate the former.’ In the Hamlin Case the first clause of the will, by its express terms, gave the real estate with full power to hold, use, enjoy, or dispose of it, and convey it by absolute conveyance in fee-simple, and this language, considered by itself, would vest an estate in fee in the donee. The only words found in the will to qualify the language so used, and indicate the intention of the testator was to limit and restrict such language, so that the effect would be to vest in the donee, not the title in fee, but an estate for life, with power to dispose of and convey the fee, and with remainder for the benefit of specific legatees, are those that occur in the subsequent clause of the will, and create the remainder by directing the limitation over in respect to all real estate not conveyed by the first donee. The decision in the Hamlin Case is cited with approval in Kaufman v. Breckinridge, above. So, also, in Bergan v. Cahill, 55 Ill. 160, and Friedman v. Steiner, 107 Ill. 125, the qualification to reduce the fee that is apparently donated to an estate for life is found only in the limitation clause of the will. The primary consideration is an ascertainment of the intention of the testator, and it is wholly immaterial in what part of the will the words are found which indicate such intention. Nor do we deem it essential to the creation of a life-estate that the intention so to do should be expressed in any set form of words; and all that is required in order to show such an estate, and not the fee-simple title, is given the donee, is that it shall clearly appear from a consideration of all the various clauses and provisions of the will, when taken and compared together, that it was the testamentary intention the donee should have a life-estate.

We are of opinion the will in question gave to Elotia Pritchard a life-estate in the 168 acres of land, with power to sell and convey the same in fee, and convert the proceeds and avails thereof to her own use and benefit, with remainder in the land if unsold under the power, and, if sold, then the remainder in such portions of the proceeds and avails as remained unexpended at the time of the death of the donee, to the two sons of the testator. Both the land and personal property...