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any remedy to her to disturb him in the possession of the property.

The decree will be reversed, and the cause will not be remanded. Decree reversed.

(197 III. 144)

KIRKPATRICK et al. v. KIRKPATRICK et al.

(Supreme Court of Illinois. June 19, 1902.) WILLS-CONSTRUCTION "HEIRS"- LIFE ESTATE-POWER OF SALE-VESTED REMAINDERS-DOWER-DIVORCE.

1. Where testator gave his wife certain realty "during her life," to manage, rent, or sell as she might direct, with remainder over, she, having been expressly given an estate during life, did not take a fee, under the doctrine that, when there is a devise of power of disposition of an estate in such manner as the devisee may direct, a limitation over is inoperative because of repugnancy.

2. Where a testator, in the bequest of his personal property, and in the devise of certain realty in remainder, and in the nomination of executors, employs the word "request" as expressive of will, purpose, and desire, and the will further "requests" that on the death of his wife all his real estate shall go to his heirs, the word "request," as last used, will be given the same meaning.

3. Where testator's will gave his wife an estate for life in certain lots, and provided that on her death all his realty should go to his heirs, the wife being given no power over the realty other than the lots, such realty other than the lots vested in the heirs on testator's death.

4. Testator directed that his personalty be divided into five equal portions, and divided among four sous and a daughter-in-law, widow of a deceased son, naming them, and that his real estate should go to "the heirs in equal portions as heretofore mentioned." Testator was survived by his children named and the children of the deceased son. Held, that a contention that the words "heretofore mentioned" referred to "heirs," rather than to "equal portions," and that only those took who were mentioned and also "heirs," was of no merit, but the realty passed to testator's heirs at law, his children and grandchildren, in five equal portious, per stirpes.

5. Where a widow accepts a devise of a life estate, her dower in other lands is barred.

6. Where there is nothing in a will to indicate that a devise to heirs is to be other than such as an heir would take under the statute, the devisees take per stirpes.

7. Where a decree of divorce contains nothing affecting the wife's right of dower, she is entitled on the husband's death to dower in any lands of which he was seised when the decree was entered.1

8. A remainder after a life estate is not contingent because the life tenant has power of sale, but the remainder vests subject to the power.

9. Dower does not attach to realty in which the husband has but an interest in remainder, unless the particular estate terminates during coverture.

10. Where a will gives the wife a life estate, with power to manage, rent, or sell, and recites that after her death, "if not already disposed of," it shall go to certain persons in remainder, the quoted phrase does not enlarge the power of disposition, so as to authorize a testamentary disposition by the life tenant.

11. Where a will gave the life tenant power to manage and sell, she had no authority to make a testamentary disposition, especially where it 1 See Dower, vol 17, Cent. Dig. §§ 102, 104.

appeared the object of her will was to defeat the passage of title to the heirs of the children of testator's deceased son, to whom it would pass by testator's will and by operation of law.

Appeal from circuit court, Madison county; Wm. Hartzell, Judge.

Suit by Clark Kirkpatrick and others against Lulu C. Kirkpatrick and others. From a decree for complainants, defendants Lulu C. Kirkpatrick and another appeal. Reversed.

Travous, Warnock & Burroughs and S. T. G. Smith, for appellants. John G. Irwin, for appellees.

BOGGS, J. This was a petition for the partition of lots Nos. 193 and 195 and outlot No. 44, in the city of Edwardsville, Madison county, and the N. 1⁄2 of section 33, township 13 S., range 2 W., in Union county. One Hugh Kirkpatrick died seised of the title to these lots and the land. Said Hugh Kirkpatrick died May 29, 1895, leaving a last will and testament, which, so far as is important to be here considered, is as follows: "That after my decease and funeral expenses are paid, which should not exceed $100, and an amount not to exceed $350 for the erection of a suitable monument on my lot in Woodlawn cemetery, I request that all the money, consisting of notes, bonds, or bank deposits, that I may possess, shall be divided in five equal parts and distributed as follows: One share to William Kirkpatrick or his heirs, one share to Clark or his heirs, one share to Harry, one share to Mamie, and one share to my daughter-in-law, Lulu C. Kirkpatrick; but, having already given her the sum öf $1,500 in behalf of my deceased son, Frank, this amount shall be deducted from her share. The property known as the 'St. James Hotel,' situated on lots Nos. 193 and 195, together with all the furniture and fixtures, except the piano, which belongs to Mamie, I give to my wife during her life, to manage, rent, or sell, as she may direct. After her death, if not already disposed of, I request that the property, together with any other real estate that I may own, shall go to the heirs in equal portions, as heretofore mentioned; and also I request that my wife and my son William execute the will in accordance with the wishes herein expressed, and that they shall not be required to give bond for the faithful performance of the same." Prior to the execution of the will, Frank Kirkpatrick, a son of said testator, departed this life, leaving the appellant Lulu Kirkpatrick his widow, and two children, both of whom died in infancy in January after the death of the testator. After the death of the testator, Anna, wife of his son William, mentioned in the will, was on January 30, 1899, granted a divorce from her husband because of the wrong of the husband. Ruth Kirkpatrick, widow of the testator, rented and used said lots Nos. 193 and 195, being the St. James Hotel prop

erty, during her lifetime, but did not sell or convey the same to any one. She died July 4, 1900, leaving a last will and testament, in which she devised all her property, of every kind and character, to her four children, William, Harry, and Clark Kirkpatrick, and Mamie Keller. The will also contained the following: "It is my purpose and intention by this clause of my will to pass title to lots 193 and 195 on Main street, in the city of Edwardsville, and the hotel building, and all appurtenances thereto belonging, which is upon said lots, and to all furniture and fixtures therein contained, and to exclude the widow of my deceased son Frank, and her heirs, from all interest therein. One reason for this is that advancements were made to her, after my deceased husband made his will, which it was his intention should be charged to her; and another reason is that since his death all the children of my deceased son Frank have died, and I know that under existing circumstances my husband would have disposed of it as this will does, and I therefore dispose of it in that way by virtue of the power conferred upon me by the will of my deceased husband, Hugh Kirkpatrick." After the death of said Ruth, William Kirkpatrick departed this life, leaving no child, children, or descendants thereof, or widow,-Anna, one of the appellants, who was his wife, having obtained a divorce from him, as before stated. The chancellor found and decreed that neither of the appellants, Lulu or Anna Kirkpatrick, had any interest, of any nature or kind, in the real estate of which said Hugh Kirkpatrick died seised. This appeal questions the correctness of the decree.

The gift found in the will of said Hugh Kirkpatrick of lots 193 and 195 to his wife, Ruth, "during her life, to manage, rent, or sell, as she may direct," invested her with a life estate, with power to sell the fee. The doctrine that when there is a devise of an unlimited power of disposition of an estate in such manner as the devisee may direct, a limitation over is inoperative because of its repugnancy to the principal devise, has no application in the case of this will, for the reason the will expressly gives the devisee an estate "during her life." Welsch v. Bank, 94 Ill. 191; Hamlin v. Express Co., 107 Ill. 443. When a life estate is clearly given to the first taker, with power to sell and a limitation over, the limitation will control the operation of the power and prevent it from enlarging the estate to a fee. 4 Kent, Comm. (13th Ed.) p. 617 (*536). "The power of absolute disposition annexed to a life estate does not enlarge it into an estate in fee." Skinner v. McDowell, 169 Ill. 365, 48 N. E. 310, 61 Am. St. Rep. 183. In the bequest of his personal property, in the devise of the remainder in his real estate, and in the nomination of the executors of the will, the testator employs the word "request" as expressive of his will, purpose, and desire. The word must therefore be given that meaning in that portion of the

will which directs the devolution of the title to his real estate. That clause is as follows: "After her death, if not already disposed of, I request that the property, together with any other real estate that I may own, shall go to the heirs in equal portions, as heretofore mentioned." This clause controls the disposition of the Union county land and said outlot 44 in Edwardsville, as well as said lots 193 and 195,-the hotel property. On the death of the testator this clause became presently operative as to the Union county land and the outlot 44. The clause cannot be given the construction that as to said land and said outlot the will did not become effective until after the death of Ruth Kirkpatrick, the widOw. The will gave her power to rent and manage or to sell lots Nos. 193 and 195, but conferred no authority whatever to her over the Union county land or the outlot No. 44. The devise to the widow of the life estate in lots Nos. 193 and 195, having been accepted by her, barred her dower in the land in Union county and in the outlot. Scheible v. Rinck, 195 Ill. 636, 63 N. E. 497. There was no life estate or other intervening estate in the Union county land or in the said outlot No. 44, and no power was given to the widow to sell them, or rent or manage them, and no reason the fee title to those properties should not become vested at once, on the death of the testator, in those entitled to take as devisees under this clause of his will. It is the policy of our law that estates shall become vested at the earliest possible moment, unless a contrary intention appears. Kellett v. Shepard, 139 Ill. 433, 28 N. E. 751, 34 N. E. 254. The true construction of the clause in this respect is that at the death of the testator any and all real estate of which the testator should die seised, other than that which under the will the widow, Ruth, had power to manage, rent, or sell during her lifetime, should go to the heirs of the testator in like equal portions as he had disposed of his personal property, and that after the death of the said Ruth lots Nos. 193 and 195, if the same had not been disposed of by her, should go to the same persons to whom the land and the outlot would pass under the devise. The title to the Union county land and the outlot vested at once upon the death of the testator. We may therefore inquire in whom such title vested.

The contention of the appellees is that the persons who are to take the real estate under this clause are those persons mentioned in the preceding clause of the will as entitled to take shares of the personal property, and who are also "heirs" of the testator. Their interpretation of the clause is that the words "heretofore mentioned," in the clause, refer to the word "heirs" in the same clause, as if the clause read, "the real estate I may own shall go to the heirs heretofore mentioned in equal portions." We do not agree with this view. We think the words "heretofore mentioned" refer to the words "equal portions,'

and that the meaning of the clause is that the lands shall pass by the devise to the legal heirs of the ancestor in five equal portions, as did the personal property. True, he gave one of the five portions of the personal property to Lulu Kirkpatrick, who was not one of his heirs, and the clause declares that the real estate shall descend in equal one-fifth parts, as did the personal property. But the clause does not declare the real estate shall pass to the same persons who were to receive the personal property, but, on the contrary, that it shall go to the heirs of the testator. The appellant Lulu Kirkpatrick was not one of his heirs, and therefore not a devisee of any of the real estate of which the testator died seised. The testator was not learned in the law. He wrote the will without legal advice or assistance. He divided his personal property on the principle per stirpes. The intention is, we think, to be gathered from his will that he intended the lands to go in equal portion to his heirs per stirpes, not per capita. The devise is to his heirs. The interest each heir shall take is fixed by the statute in case of intestacy. There is nothing in the will to indicate the devise to the "heirs" of the testator was to be other than such as an heir would take under the statute. In such state of case, the devisees should take per stirpes. Kelley v. Vigas, 112 Ill. 242, 54 Am. Rep. 235. Nor can the clause be construed, as counsel for appellees urge, to disclose that it was the intention of the testator that the persons entitled to take as devisees were such only of the persons mentioned in the clause bequeathing the personal property as were also "heirs" of the testator. This con

struction would operate to disinherit the two children of Frank and grandchildren of the testator, who were living at the time of the execution of the will and at the time of the death of the testator, but who are not mentioned in the will. This result is never permitted, unless the intention to disinherit is expressly declared in the will, or results as a necessary implication from the language employed therein. Taubenhan v. Dunz, 125 Ill. 524, 17 N. E. 456. There are no express words of disinheritance, nor do we think that intention is necessarily implied from anything found in the will. Upon the contrary, if the words "as heretofore mentioned" are held, as we think they must be, to refer to and qualify the words "equal portions," then the word "heirs" in the clause in question will be given effect without qualification, and will be necessarily held to include all the heirs at law of the testator, and thus no legal heir will be deemed to be disinherited.

The testator left surviving him three sons, one daughter, and two grandchildren, the children of his deceased son, Frank, who was the husband of the appellant Lulu. His real estate would descend to them, as his heirs at law, in the absence of a will, per stirpes, in equal, undivided one-fifth parts; the grandchildren taking the share of their father.

William D. Kirkpatrick was one of said sons of the testator, and upon the death of the testator said William became seised of an undivided one-fifth interest in the Union county land and in outlot No. 44. The appellant Anna was then the wife of said William, but was afterwards divorced from him for his fault, and the decree contained nothing affecting her right of dower. She was entitled, after his death, to dower in any land of which he was seised at the time of the entry of the decree of divorce. Gordon v. Dickison, 131 Ill. 141, 23 N. E. 439; Adams v. Storey, 135 Ill. 448, 26 N. E. 582, 11 L. R. A. 790, 25 Am. St. Rep. 392. He died in 1901, and her right to dower became consummate upon his death. The chancellor erred in denying her right to dower in an undivided one-fifth interest in the Union county land and a like interest in dower in said outlot No. 44.

The devisees of the remainder created by the will in lots Nos. 193 and 195 took vested interests, subject to the power given said Ruth, the widow, to sell the lots. It was uncertain whether the power would be exercised, and therefore uncertain whether either of the lots would be left, at the death of said Ruth, to go to the remainder-men; but the remainder was not contingent because it was uncertain whether the power would be exercised. The remainder vested, subject to the power. Ducker v. Burnham, 146 Ill. 10, 34 N. E. 558, 37 Am. St. Rep. 135. But at the time of the divorce the life estate in Ruth had not been terminated, and the right of said Anna to dower did not attach to the interest of her husband in said lots 193 and 195, for the reason dower does not attach to realty in which the husband has but an interest in remainder, unless the particular estate terminates during coverture. Strawn v. Strawn, 50 Ill. 33; Kellett v. Shepard, 139 Ill. 433, 28 N. E. 751, 34 N. E. 254; 10 Am. & Eng. Enc. Law (2d Ed.) 134. Anna was therefore not entitled to be endowed in said lots Nos. 193 and 195.

At the time of the death of the testator, two children of Frank, the deceased son of the testator and husband of the appellant Lulu, were living. They were, as we have seen, devisees under the will, and upon the death of the testator became seised, as tenants in common, of an undivided one-fifth interest in the Union county land and of a like estate in said outlot 44. They both died in infancy, leaving no heir other than their mother, the appellant Lulu. She inherited the undivided one-fifth interest in the Union county land and in said outlot No. 44 owned by them, and the court erred in decreeing otherwise.

It then but remains to be determined whether the power of disposition of lots Nos. 193 and 195, which was vested in said Ruth, the widow of the testator, was exercised by the execution of the will by said Ruth devising the lands to certain of the children of the testator and herself. If the execution of the

will was a valid exercise of the power, then the devisees in her will would take the title to those lots, and no title thereto would inure to the appellant Lulu. The two children of Lulu, as we have seen, were upon the death of the testator, vested with an undivided one-fifth interest in these lots 193 and 195, subject to the power with which their grandmother, Ruth, was invested by the will to sell the lots. The power given in the will is to sell the lots. No attempt was made to dispose of them in that manner. The later provision in the will, that "after her death, if not already disposed of, I request," etc., cannot be construed to give Ruth any additional estate or power of disposition. The true meaning is, "if not disposed of" in the manner authorized in that part of the will which confers power of disposition. We have seen that the power of absolute disposition annexed to a life estate does not enlarge it into an estate in fee. Ruth had not the fee, and consequently was not clothed with the right to devise the lots as owner of the fee title thereto. The power which she took under the will was to sell the lots, and was limited to a disposition of the lots by sale thereof. A sale of property presupposes a contract of sale, or some transaction in the nature of a contract of sale, absolute or conditional, as a mortgage, and based upon a consideration. The sale of real estate can only be consummated by the execution of a deed. Power to make disposition by sale confers the right to dispose of the land by a deed, and, by implication, power to make disposition by gift, as a devise in a will, must be regarded as excluded where the power expressly given is to sell. Kent. v. Morrison (Mass.) 26 N. E. 427, 10 L. R. A. 758, 25 Am. St. Rep. 616. It is, moreover, clearly shown by the express declarations in the will of said Ruth that she did not execute her will as in obedience to the will of her husband, but that she sought to thereby pervert the power given her to sell the property to the purpose of defeating the devolution of the title to the lots to the persons intended in the will of the husband to receive such title in the event she should not sell them. Ruth understood the will of her husband as we have interpreted and construed it, and executed her will for the purpose of preventing the will of her husband from going into effect as to the heirs of the children of Frank, the deceased son of the testator. In her will the widow, Ruth, expressly declared that her purpose and intention in executing the will is to exclude "the widow of my deceased son Frank, and her heirs, from all interest" in the lots 193 and 195, and states as a reason therefor "that since his [the testator's] death all the children of my deceased son Frank have died, and I know that under the existing circumstances my husband would have disposed of it [the lots] as this will does, and I therefore dispose of it in that way by virtue of

the power conferred upon me by the will of my deceased husband, Hugh Kirkpatrick." This will cannot be regarded as an exercise of the power of disposition given in the will of Hugh Kirkpatrick. On the death of the testator an undivided one-fifth interest in said lots 193 and 195 in Edwardsville became vested in the two children of Frank, the deceased son of the testator, the husband of the appellant Lulu, subject to the power of Ruth to dispose of the same by sale. That power was not exercised. The title which vested in these two children descended, by reason of their death, to their mother, the appellant Lulu Kirkpatrick. The court should have found that said appellant Lulu was entitled to an undivided one-fifth of all the real estate of which Hugh Kirkpatrick died seised.

The decree is reversed, and the cause will be remanded to the circuit court for further proceedings consistent with this opinion. Reversed and remanded.

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1. Under Hurd's Rev. St. 1899, p. 109, § 30. providing that the county court may revoke letters of administration granted to persons who mismanage the estate or endanger their securities, where the administrator of an estate which has no personal property, but with existing debts and a mortgage on the real estate, which is about to be foreclosed, removes from the county, and refuses to petition for the sale of the real property, which largely exceeds in value the amount of the mortgage, the county court may remove him.

2. Where the record on the removal of an administrator shows facts which confer jurisdiction on the court to make such removal, the facts cannot be impeached collaterally.

3. Where an administrator de bouis non is an administrator de facto, the regularity of his appointment cannot be questioned in a collateral proceeding.

4. An heir who was a party to proceedings by the administrator to sell lands, and answered by his guardian ad litem, will not be permitted, in a collateral proceeding, to take advantage of mere errors in the original proceedings.

5. Where, in a petition by an administrator to sell land to pay debts, it sufficiently appears that the debts amount to about $1,100, any irregularity that may exist because of defects in the statement are insufficient to affect the sale on collateral attack.

6. Where lands have been sold by an administrator by order of the court, and the proceeds applied to the payment of debts of the estate, the sale should not be declared void because the court failed to order the administrator to give an additional bond as required by Rev. St. c. 3, § 7.

Appeal from circuit court, Pope county; A. K. Vickers, Judge.

Action by William Petty against Levi Frothingham and others. From a judgment for plaintiff, defendants appeal. Reversed.

D. G. Thompson, for appellants. Whiteside & Durfee, for appellee.

RICKS, J. This is a suit in partition | paid by H. Clanahan, the purchaser of said

brought by William Petty against appellants in the circuit court of Pope county. Appellee avers that he is the owner in fee of an undivided one-half interest in the premises described in the bill, acquiring title by descent from his grandmother Emily Mansfield, who died intestate June 21, 1890, leaving Margaret J. Mansfield, her daughter, and appellee, as her only heirs at law. Defendants filed their joint and several answer to complainant's bill, setting up title by mesne conveyances from the administrator de bonis non, Willis Baker, of the estate of Emily Mansfield, under a decree of the county court ordering a sale of said premises for the payment of the debts of the estate; and by stipulation in writing all the files, records, orders, and processes, etc., of the probate court of Pope county in the matter of the estate of Emily Mansfield were considered as part and parcel of the answer. The complainant objecting to the sufficiency of the answer, the cause was set down for hearing on bill and answer thereto under stipulations, and the court found that the answer of the defendants was insufficient, and that the probate court proceedings in the county court of Pope county were insufficient to pass title to the purchaser at the administrator's sale, and decreed that the complainant was entitled to partition of the land described in said bill, and was the owner of an undivided half interest in and to said land. The defendants stood by their answer, and the cause now comes before us on appeal.

The controversy in this court arises upon the question whether the county court had power to make the sale of the lands in question upon the application of Baker, as administrator de bonis non, appellee's contention being that Steagall, the administrator, was not properly removed, and that Baker's appointment was therefore void, and, being void, the county court did not have jurisdiction or authority to direct the sale on Baker's petition.

It appears that a petition was filed in the county court of Pope county by Margaret J. Mansfield, in which it was alleged that on July 2, 1890, William O. Steagall was duly appointed administrator of said estate by the county court of Pope county; that the deceased left a large amount of land, and not sufficient personal property to pay the child's award and to pay the debts against the estate; that a decree of said court was obtained to sell all of said land, and the same was by said administrator sold to pay the said debts, and a deed made to one Harrington Clanahan, the purchaser, and that on bill filed by petitioner and the other heir, William Petty, the said decree, sale, deed, and order approving said sale were all set aside and annulled by the circuit court of Pope county at its last May term, 1892; that, in addition to said matters before mentioned, the said circuit court made the $100

land, on said purchase, a first lien on said land, and ordered that the whole matter be remitted to the county court for the purpose of further proceeding to sell said land to pay the debts due from said estate; that there was a mortgage of $500 and interest held by F. M. Clanahan on said land, which was overdue, and the said Clanahan was about to, and would, foreclose said mortgage if steps were not taken at once by the administrator to obtain a decree for the sale of said land to pay the same; that, if a decree was obtained to sell said land soón, a part of the land could be sold for enough to pay off the debts of the estate, and leave enough land for a home for petitioner; that the administrator had become a resident of Shelby county, in this state, and had neglected and refused to take any steps toward obtaining a decree for the sale of said land, and had failed to make report, as he should. Petitioner therefore asked that a citation or notice might be sent to the administrator, and he might be removed and some other discreet person appointed in his stead, and such orders might be made as would protect the rights of said petitioner and other heir. This petition was properly verified. Thereupon the following order was entered by the court:

"Now, on this day, comes Margaret J. Mansfield, the petitioner herein, and presents to the court her petition for citation, and represents to the court that William O. Steagall, administrator of said estate, has failed to make report and take proper steps towards obtaining a decree to sell real estate to pay debts; that said Steagall is now a resident of Shelby county, Illinois. The court carefully examines said petition, and finds the allegations therein to be true; and, the court being sufficiently advised in the premises, it is by the court ordered that citation issue from this court under the seal thereof, that said Steagall be and appear before the court at the time and place therein set forth, or show good reason why he should not be removed from his said office. Said citation to be directed to the sheriff of Shelby county, Illinois, returnable to the September term of this court, A. D. 1892, as the law directs, and which is accordingly done. First day of August term, Monday, 1st, 1892."

On the 2d day of August, 1892, a citation in the usual form was issued, reciting that "William O. Steagall has not made report and proceeded to obtain decree for sale of real estate to pay debts, and is guilty of other delinquencies," and notifying said Steagall to appear before the county court of Pope county on September 5, 1892, "then and there to make report and file petition for sale of real estate to pay debts, or, in default thereof, that he show cause why he should not be removed from his said office, and to further do and perform what shall

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