Wolfer v. Hemmer

• Decision Date: 31 March 1893
• Citation: 33 N.E. 751,144 Ill. 554
• Parties: WOLFER v. HEMMER et al.
• Court: Illinois Supreme Court

144 Ill. 554

33 N.E. 751

WOLFER

v.HEMMER et al.¹

Supreme Court of Illinois.

March 31, 1893.

Appeal from appellate court, first district.

This is an action of ejectment, brought by John and Angela Hemmer against Rosalie Wolfer, Patrick McAulif, and John C. Bodenwick, for the possession of certain pieces of land situated in the city of Chicago. By agreement between the parties the intervention of a jury was waived, and the case submitted to the court for trial, which resulted in findings by the presiding judge for the plaintiffs, and a judgment on such finding, Rosalie Wolfer, one of the defendants, appeals. Reversed.

Craig, J., dissenting.Blanke & Chytraus, (Wm. Vocke, of counsel,) for appellant.

Robert H. McMurdy and Frank G. Allen, for appellees.

WILKIN, J.

Appellees brought their action of ejectment against appellant and certain tenants holding under her to recover possession of lots 24 and 25, etc., in the city of Chicago. A trial in the superior court of Cook county on a plea of the general issue resulted in a judgment for the plaintiffs for the said lots in fee, and from that judgment the defendant below prosecutes this appeal.

The premises in controversy were formerly owned by one John Hemmer, who died June, 1872, leaving the following last will and testament, which, after his death, was duly probated: ‘First. I give, devise, and bequeath unto my beloved wife, Angela Hemmer, her heirs and assigns, all the following-described real estate, located in the city of Chicago, Cook county, and state of Illinois, and known and described as follows, to wit: Lots numbered twenty-four (24) and twenty-five, (25,) in the northeast corner of the southeast quarter of section twenty, (20,) in township thirty-nine (39) north, of range fourteen (14) east of the third principal meridian; also lots ninety-nine (99) and one hundred (100) in Given and Gilbert's subdivision of the fifteen acres in section fourteen, (14,) township thirty-nine, (39,) range thirteen, (13.) Second. I give, devise, and bequeath unto my beloved wife, Angela Hemmer, all my remaining estate, both real and personal, in whatever it may consist, or wherever it may be situated, at the time of my death, to be by her used and disposed of during her natural life precisely the same as I myself might do were I living; and giving my said wife full power to sell, mortgage, exchange, invest, and reinvest the same in the same manner I might do if living; and to distribute the same, by gift or otherwise, among my children, at any time during her life, as to her shall seem meet and proper, and to appoint the same among my children by will after her decease, accordingto her own judgment and discretion. But if any of my said real estate or any of my personal estate shall remain undisposed of by my said wife at the time of her decease, I give, devise, and bequeath all such residue and remainder of my said estate to be equally divided among my children who shall be living at that time and the issue of any child who may have been then deceased, such issue taking the share to which such deceased child would be entitled if living. This proviso is to apply to all my estate. Lastly. I hereby appoint my said wife, Angela Hemmer, sole executrix of this, my last will and testament, and shall not be required to give any bond as such executrix. In testimony whereof I have hereunto set my hand and seal this 29th day of May, A. D. 1872. [Signed] John Hemmer. [Seal.]’ Subsequently his widow, Angela, intermarried with one Lorenz Wolfer, and died intestate, having made no disposition of said lots, and leaving appellees and one Leopold Wolfer (a child of the last-named marriage) her only children and heirs at law. Said Leopold died in infancy, leaving his father, Lorenz Wolfer, and appellees, his heirs at law. Said Lorenz thereafter married appellant, Rosalie, and died intestate, leaving an only child, Josephine C., surviving him, his sole heir at law; and this child thereafter also died intestate, leaving appellant, her mother, her sole heir at law. No issue of a deceased child of John Hemmer survived his widow, Angela, and at her death appellees were his only living children. Under this state of facts, appellees insist that upon the death of their mother they took the title to said lots in fee, under said will. This claim is based upon the theory that, properly construed, the will gave their mother only a life estate in those lots, with a power of disposition, and that upon her death the title in fee to the same, or so much thereof as remained undisposedof, vested in them. On the contrary, appellant contends that by the terms of said will the wife, Angela, took said lots in fee, and upon her death the title thereto became vested in her heirs, under our statute of descent; appellant taking an interest in the same as tenant in common with appellees.

The only question, therefore, presented for our decision is, did the wife of John Hemmer, under his said will, take the title to these lots in fee simple or was her estate therein for life only, with a power to dispose of the same? That the language in the first clause, ‘I give, devise, and bequeath unto my beloved wife, Angela Hemmer, her heirs and assigns, the following-described real estate,’ amounted to a devise of the title in fee, cannot be seriously questioned. It is said in Redfield on Wills, (volume 2, p. 326:) ‘The usual form of creating a devise in fee simple is by giving the property to the devisee, his heirs and assigns, forever; but to him and his heirs is all that is technically required.’ In either form of expression, the words ‘her heirs,’ as here used, would be words of limitation, the fee vesting in the devisee, Angela Hemmer. Baker v. Scott, 62 Ill. 86;Brislain v. Wilson, 63 Ill. 173;Beacroft v. Strawn, 67 Ill. 28;Butler v. Huestis, 68 Ill. 594;Wicker v. Ray, 118 Ill. 472, 8 N. E. Rep. 835; Ryan v. Allen, 120 Ill. 648, 12 N. E. Rep. 65; Carpenter v. Van Olinder, 127 Ill. 42, 19 N. E. Rep. 868; Griswold v. Hicks, 132 Ill. 494, 24N. E. Rep. 63, Hageman v. Same, 129 Ill. 164, 21 N. E. Rep. 814; Fowler v. Black, 136 Ill. 363, 26 N. E. Rep. 596. But counsel for appellees say: ‘If the intention of the testator, upon a fair construction of the whole instrument, is such as to warrant the construction, the fee granted will be cut down to a life estate, with a power of disposition of the fee, and the subsequent words in that way will be given effect;’ and upon this proposition rests their entire case....