Jordan v. Jordan

117 N.E. 1049, 281 Ill. 421
CourtIllinois Supreme Court
DecidedDecember 19, 1917
DocketNo. 11533
StatusPublished
Cited by3 cases

This text of 117 N.E. 1049 (Jordan v. Jordan) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jordan v. Jordan, 117 N.E. 1049, 281 Ill. 421 (Ill. 1917).

Opinions

Mr. Justice Dunn

delivered the opinion of the court:

George E. Jordan filed a bill in the circuit court of DeWitt county for the partition of 235 acres of land and certain other real estate devised by the will of James Jordan, and the court decreed that John W. Jordan, Mary M. Greene, George E. Jordan and Nellie Jordan wrere each entitled to an undivided one-fourth of the real estate in fee simple, subject to the payment of legacies, and that the devise to John W. Jordan was subject to the payment of $1000 to the estate of the testator, with five per cent interest from one year after the testator’s death. John W. Jordan and Gertrude Jordan, to whom he had conveyed his interest, appealed from the decree, and insist that the court erred in decreeing that George F. Jordan and Nellie Jordan had title in fee simple instead of a base fee, and in decreeing that the title of John W. Jordan was subject to the payment of $1000 and interest to the estate of the testator.

The will of James Jordan, after directing the payment of the debts and funeral expenses, gave all of his real estate and personal property to his wife for life. The controversy arises out of the succeeding clauses of the will and the second codicil. The clauses of the will in question are as follows:

“Fifth—After the death of my said wife, Johanna Jordan, all of my real estate hereinbefore described, and all the other real estate I may own at the time of my death and devised to her, and all of my personal property, including all money on hand at time of her death, and all property of every kind and character, shall descend to and all title and interest therein held by her at the time of her death shall descend to and vest in my four children, viz., John W. Jordan, Michael C. Jordan, Mary M. Greene, George F. Jordan and Nellie Jordan, share and share alike, as their sole and absolute property forever, in fee.
“Sixth—I give, devise and bequeath to my two sons James J. Jordan and Thomas A. Jordan, each, the sum of $2000, I having paid them large sums of money during my lifetime.
“Seventh—All money that may be due and owing to me or my estate at the time of my death from any of the above named-children, or any debts that my estate may be compelled to pay for any of them after my death by reason of my being on any note or other security, or any debts that I may pay for them before my death and .remain unpaid by them at-the time of my decease, shall be charged against them and deducted from his or her share of my estate, excepting, however, that it is my will that nothing be deducted from the bequests of James J. Jordan and Thomas A. Jordan, and that the sum of $iooo be deducted from the bequest of John W. Jordan.
“Bighth—I give, devise and bequeath to my three grandchildren, being the children of my deceased son, Edward M. Jordan, viz., Edward Carroll Jordan, Mary Jordan and Jerome Jordan, each the sum of $50. In order ■that all further disputes, controversy or litigation may be avoided, I make the following statement as a reason why I have not willed or devised more of my estate to the widow and heirs of my deceased son, Edward M. Jordan, viz., because I have paid to him and for him, in cash and otherwise, and assisted him in different ways during my lifetime and during his lifetime to such an extent that he or they would be owing the estate more than their share if the same were equally divided with the other heirs named.
"Ninth—In case of the death of any one or more of my above named heirs without issue who are made devisees under this will, before or after my death or before the death of my said wife, then and in that event the share herein devised to them shall be equally divided between John W. Jordan, Michael C. Jordan, Mary M. Greene, George F. Jordan and Nellie Jordan, share and share alike, as an estate in fee simple, and in case of one or more of the devisees after my death, then their share shall descend according to the laws of descent in this State.”

By a codicil the testator revoked the bequests of $2000, each, to his sons James and Thomas, and directed that their amount should be divided equally among his children named in the fifth clause of the will, and instead directed that James and Thomas should receive $25, only. On September. 23, 1913, the testator’s wife and his son Michael C. Jordan having died in the meantime, the testator executed a second codicil, by the first clause of which he directed that the sum of $3000 should be paid to the three children of his deceased son Edward, to be divided equally among them. The second clause of the codicil is as follows:

"Second—My son M. C. Jordan having died since the making and execution of my said last will and codicil, I give, bequeath and devise the share to him given by me in said last will and testament and codicil thereto, to my following named children, share and share alike, viz., John W. Jordan, Mary M. Greene, George E. Jordan and Nellie Jordan, in fee simple, and in case of the death of one or more of the children named in this clause, his or her share shall be divided equally between the survivor or survivors, otherwise ratifying and confirming my said last will and testament and the codicil thereto signed by J. .C. Myers and Sherman G. Hull as witnesses.”

The testator left as his heirs, his sons, John W. Jordan, James J. Jordan and George F. Jordan, his daughters, Mary M. Greene and Nellie Jordan, and the three children of his deceased son Edward. John W. Jordan and Mary M. Greene are married and have children, but neither George F. Jordan nor Nellie Jordan has ever had a child. The fifth clause devised the remainder to the five children named, in fee simple. The object of the ninth clause was to limit the estate thus devised, but it is hard to tell exactly what was intended. None of the children except Michael did die either before or after the death of the testator or before the death of his wife, and the testator changed his will to provide for the changed condition caused by this death and the subsequent death of his wife, by his second codicil. A consideration of the meaning of “death * * * without issue, * * * before or after my death or before the death of my wife,” is unnecessary, therefore, except as it may throw light upon the meaning of the rest of the clause. The purpose of this expression was probably to postpone the vesting of the estate so that only such of the children named as survived both the testator and his wife should take the estate. No mention of survivorship is made, however, and if such was the testator’s intention he failed to express it.' The concluding sentence of the clause is senseless as written. It probably refers to the death of a devisee, though it does not say so. The appellants argue that this sentence is the antithesis of that in the earlier part of the clause, and as the latter refers to death without issue the former should be regarded as referring to death leaving issue, and the words “leaving issue” should be inserted after “death.” It may be that such was the intention of the testator, but he may as well have referred to the death of himself and his wife.

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Bluebook (online)
117 N.E. 1049, 281 Ill. 421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jordan-v-jordan-ill-1917.