Green v. Hewitt

97 Ill. 113, 1880 Ill. LEXIS 230

• Court: Illinois Supreme Court
• Decided: November 26, 1880
• Status: Published

Opinion

Mr. Justice Mulkey

delivered the opinion of the Court:

The whole controversy in this case turns upon the construction to be given to the second clause of the will of WiIlian C. Thompson, through which all the parties claim. It is as follows:

“ Second. After the payment of such debts and funeral expenses, I give and bequeath to my beloved wife, Elizabeth Thompson, the farm on which we now reside, situate in said county, and known and described as the north-east quarter of the south-west quarter of section seven, township fifteen,* range thirteen, also all my personal property of every description, so long as she remains my widow; at the expiration of that time the whole, or Avhatever remains, to descend to my daughter, Mary Thompson.”

Plaintiffs in error insist that under this provision of the will Elizabeth Thompson took an absolute fee simple estate in the premises therein mentioned, Avhich are the same lands now in controversy, and of which partition is sought by complainants’ bill. If she did not take an inheritance, as contended, but a mere life estate, as is claimed by defendants in error, then it is clear complainants shoAved no title to the premises in themsehres, and the demurrer to the bill Avas therefore properly sustained by the court.

To us there seems no room for doubt as to the proper construction of the clause in question. The devise of the farm and personal estate is expressed in a single sentence, one clause of which relating to the land, and another to the personalty. By their punctuation these clauses of the sentence are merely divided by a comma and are connected by the conjunctive adverb “also,” which, in that connection signifies in like manner, or in addition to; that is, the testator gives and bequeaths the farm, and in like manner gives and bequeaths the personalty. Then follows the qualifying or adverbial clause, “so long as she remains my widoAV,” Avhich is introduced for the purpose of limiting the entire gift, both of personalty and realty, to the Avidowhood of the taker. He gives and bequeaths both only so long as she remains his widow. This is both the grammatical and legal construction of the sentence. The meaning is precisely the same as if the testator had said: “ I give and bequeath to my beloved wife, so long as she remains my widow, the farm, etc., on which we now reside, and in like manner I give and bequeath to her all my personal estate.” She took a mere life estate in the entire gift. The misapprehension as to the legal effect of the devise doubtless grows out of the use of the expression “whatever remains” by the testator, in limiting the remainder to his daughter. The use of that expression is of no vital significance, and can not be permitted to override the clearly expressed intention that the widow should take a life estate only.

As part of the estate devised was personalty, it is but reasonable to suppose that some of it would be of that species of property whose value and use consist solely in its consumption, such as provisions, etc., and it was doubtless the intention and expectation of the testator that property of this character should and would be consumed by his widow, and of course not in existence when her estate terminated. It was also reasonable to suppose that if she lived long as his widow, some of the articles of personalty would be worn out, lost or destroyed; hence, in making the limitation over, it was but natural and proper to use the expression “ whatever remains.” It had reference to the anticipated condition of the personal estate when it would, under the limitation, pass into his daughter’s hands. And this is all the significance the expression has.

It is further claimed by plaintiffs in error that the estate of the daughter was a contingent remainder, and that inasmuch as she died before the the termination of the particular estate which supported it, it never vested at all. Counsel are entirely mistaken in this view. The estate of the daughter had not a single element in it that distinguishes a contingent from a vested remainder. There was certainly no uncertainty as to the person who was to take. It was Mary Thompson, the daughter, clearly. And the time of her taking in possession was equally certain, namely: when Elizabeth Thompson ceased to be the widow of the testator, whether it was effected by death or a second marriage.

A clearer example of a vested remainder could scarcely b.e conceived. But admitting, for argument’s sake, plaintiffs in error are right upon this question, the admission is certainly fatal to' their right of recovery; for, if the daughter took a contingent remainder, of necessity the widow could not have taken a fee, and their right of recovery rests entirely upon the hypothesis that she took a fee simple title under the will.

We are, in any view, clearly of opinion that the decree of the circuit court was right, and it is therefore affirmed.

Decree affirmed.