Williamson v. Carnes

• Decision Date: 21 October 1918
• Docket Number: No. 11994.,11994.
• Citation: 120 N.E. 585,284 Ill. 521
• Parties: WILLIAMSON et al. v. CARNES et al.
• Court: Illinois Supreme Court

284 Ill. 521

120 N.E. 585

WILLIAMSON et al.

v.CARNES et al.

No. 11994.

Supreme Court of Illinois.

Oct. 21, 1918.

Appeal from Circuit Court, Pike County; Harry Higbee, Judge.

Suit by Salena Williamson and others against S. Edward Carnes and others. Bill dismissed, and complainants appeal. Affirmed.

Anderson & Matthews, of Pittsfield, for appellants.

W. E. Williams and A. Clay Williams, both of Pittsfield, for appellees Carnes.

Louis T. Graham, of Pittsfield, for appellees Miller.

Edwin Johnston, of Pittsfield, guardian ad litem, for infant appellees.

DUNCAN, C. J.

Richard Carnes died testate in Pike county, Ill., on July 26, 1902, leaving him surviving Guldy Carnes, his widow, and five children and three grandchildren, as his only heirs at law. George Carnes, a son, died July 19, 1917, without ever having had any child or children born to him, but leaving surviving his widow, Margaret Carnes. The surviving children of Richard Carnes are Henry Carnes, who has 3 living children, Mary Nelson, who has 3 living children, Salena Williamson, who has living 12 children, and S. Edward Carnes, who has never had born to him any child. The three grandchildren are Thomas R. Miller, David Miller, and Harvey Miller, sons of Eliza Miller, a daughter, who died February 14, 1878. The will of the testator was admitted to probate in the county court of Pike county, and, after the direction that all his just debts should be paid, provided as follows:

‘Second-I give to my grandchild Thomas R. Miller the sum of $500, and also give to my grandson David Miller the sum of $500, and also give to my grandson Harvey Miller the sum of $500, the said above named grandchildren being the sons of Eliza Miller, the deceased daughter of the said Richard Carnes.

‘Third-I direct that my beloved wife shall take and have her legal right and interest in the estate of the said Richard Carnes.

‘Fourth-I give, bequeath and devise the remainder of my estate, both real and personal, to my sons and daughters now living, to be divided equally between said sons and daughters, and if any of said sons or daughters shall die before the said Richard Carnes, and leave a child or children, such deceased child or children's share shall go to the child or children of such deceased child or children, and any son or daughter shall die without child or children, then in such case such deceased child's share so dying without child or children shall be divided equally between the living children and the child or children of any dead child.’

The will was executed February 8, 1890, and named S. Edward Carnes and George Carnes as executors. The testator died seised in fee simple absolute of 1,663.15 acres of land in Pike county, of the value of $125,000, and possessed of personal property of the value of $50,000. After his death the five living children made partition of his real estate by quitclaim deeds to each other of their respective portions. The other four children deeded to George Carnes, November 13, 1902, the following of said lands: The northeast quarter of the southwest quarter and the west half of the southwest quarter of section 20; all that part of the east half of the northwest quarter of said section lying south of the right of way of the Wabash railroad; the northeast quarter of the southeast quarter of section 19, and the south half of the northwest quarter of section 29-all in ownship 4 south, range 3 west of the fourth principal meridian. Guldy Carnes, widow of the testator, also signed said deed, the consideration named being $1. The language used in the deed to convey said land is as follows:

‘Do alien, release, remise and quitclaim unto the said party of the second part, and to his heirs and assigns, those certain tract or parcel of land, with the appurtenances, lying and being in the county of Pike and state of Illinois, described as follows, to wit: * * * To have and to hold the aforesaid granted premises to the said party of the second part, his heirs and assigns, to his and their use and behoof forever including the release and waiver of the right of homestead.’

George Carnes made a will, which was duly probated in the county court of Pike county, by which, after directing that all just debts and funeral expenses be paid, he bequeathed to Margaret Waters the sum of $1,000, and, subject to said provisions, he devised to his wife, Margaret, for life, all property of every kind and nature of which he might die possessed, she to have full use and control of the same. By the further provisions of his will, at the death of his wife, Edna Koontz, Alice White, George Carnes (son of the testator's nephew, Hayes Carnes), George Edward Williamson, George Carnes (son of his cousin, Jerry F. Carnes), the United Brethren Church of Maysville, and Margaret Waters were bequeathed legacies ranging from $300 to $3,000. Subject to all the foregoing provisions and at the death of his wife, Margaret, by his will he gave, devised, and bequeathed to his nephews and nieces, except his nephew Emmett Carnes, all the remainder of his property, to be divided share and share alike, and named Margaret Carnes as his executrix.

Salena Williamson, Mary Nelson, and Henry Carnes, two daughters and a son of Richard Carnes, filed a bill in the circuit court of Pike county, Ill., December 6, 1917, for the partition of the lands deeded by the widow and children of Richard Carnes to George Carnes, as aforesaid. The bill set forth the foregoing facts, and it was charged therein that the complainants in the bill, and their brother, S. Edward Carnes, were the owners in fee simple of said premises as tenants in common, each being entitled to one-fourth thereof, by reason of the provisions of the will of Richard Carnes and the death of George Carnes without leaving children or descendants of children. S. Edward Carnes and all of the legatees and devisees named in the will of George Carnes, and Thomas Belford and Henry Weiniger, tenants in possession of the land, were made parties defendant to the bill. Certain of the defendants were minors, and a guardian ad litem was appointed for them, who filed a demurrer to the bill. Demurrer thereto was also filed by Thomas R., David, and Harvey Miller. Margaret Carnes and S. Edward Carnes also filed a third demurrer to the bill. The other adult defendants made default. The demurrers of the guardian ad litem and of Margaret Carnes and S. Edward Carnes were sustained, and the court entered a decree on the demurrers, dismissing the bill for want of equity. The complainants in the original bill have prosecuted this appeal.

The decision in this case depends solely upon one question, and that is: What is the proper construction and interpretation to be placed upon the latter part of the fourth paragraph of the will of Richard Carnes? reading thus:

‘And any son or daughter shall die without child or children, then in such case such deceased child's share so dying without child or children shall be divided equally between the living children and the child or children of any dead child.’

Appellants contend that the testator, by the words in said clause ‘shall die without child or children,’ meant die without child or children at any time, either before or after the death of the testator. They therefore contend that they, together with S. Edward Carnes, their only other living brother, at the death of George Carnes became seised of the lands deeded to him as tenants in common in fee simple, under the provisions of their father's will. They also contend that the Miller children could not take under the fourth paragraph of said will, because their mother was dead and had been dead for a number of years at the time the will was made, and that the gift to the grandchildren was a substitutionary gift, and the Miller children could not take by way of substitution, as their mother was not a...