Miller v. Mowers

81 N.E. 420, 227 Ill. 392

Opinion

Mr. Justice Carter

delivered the opinion of the court:

The main question in this case is as to what interest in the lands in question was conveyed to Catherine M. Miller by the deed of April 5, 1878. If it conveyed only a life estate, then the title to the remainder in the 120 acres in question would have been left in those persons who on April 5, 1878, owned the premises, and the title to the premises at the present time would be in those same persons or those who now rightly claim by, through or under them, respectively. If it should be held that the deed conveyed a fee, then the further question arises whether the court was authorized, on this record, in reforming it by striking out the word “heirs,” so 'that it would only convey a life estate. If the court holds that the deed conveyed a fee to Catherine M. Miller and cannot be reformed, then the property will descend to and be divided among her heirs.

Appellants contend that the deed, in terms, conveys a life interest to Catherine M. Miller and the remainder to her heirs, and that the rule in Shelley’s case must then necessarily apply and the fee to the land, under said rule, have vested by the deed in said Catherine M. Miller. This court held in Baker v. Scott, 62 Ill. 86, that one accurate expression of this rule wás, that “where the ancestor takes an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs, either in fee or in tail, the heirs are words of limitation of the estate, and not words of purchase.” This definition has been quoted many tithes, and always with approval, in the decisions of this court. We held in Johnson v. Buck, 220 Ill. 226, (p. 234,) that two elements must necessarily enter into every deed to.which this rule applies: “First, there must be a gift or conveyance of a freehold estate to the ancestor; and second, there must be a limitation, by way of remainder, to his heirs.” In discussing this rule we have held that the question of intent in determining whether it is applicable in a given case does not turn-upon the quantity of the estate intended to be given to the ancestor but upon the nature of the estate intended to be given to the heirs. (Vangieson v. Henderson, 150 Ill. 119; Carpenter v. VanOlinder, 127 id. 42; Baker v. Scott, supra.) The authorities state that the proper method of applying the rule in Shelley’s case is to interpret the deed or will by the ordinary rules of construction, precisely as if the rule were not in existence; having ascertained the testator’s intention, then look at the rule and see whether such intention conflicts with it. If it does, the rule must nevertheless be applied, as it has no exception and is absolute. Grimes v. Shirk, 169 Pa. St. 82; 25 Am. & Eng. Ency. of Law, (2d ed.) p. 642, and cases cited.

With these principles in mind, does this deed convey anything more than a life estate to anyone, either ancestor or heirs ? Both the granting and habendum clauses undertake to describe the estate conveyed. In the granting.clause the words are, “grant, bargain and sell unto the said party of the second part, her heirs and assigns, all the following described lands, * * * during her natural lifetime.” Then follows the description of the land. The habendum clause reads: “To have and to hold the said premises above bargained and described, with the appurtenances, unto the said party of the second part, her heirs and assigns, during her natural lifetime.” Had the word “heirs” been left out in both clauses there could' have been no question that only a life estate was intended. Had the words “during her natural lifetime” been left out of both clauses then an.estate in fee would be conveyed by the deed to the grantee. Had the words “heirs and assigns” been transposed and placed after the words “during her natural life,” with proper connecting words, the rule in Shelley’s case would then apply, as there would be a plain intention to grant the whole estate, and the fee, under that rule, would be in the grantee, Catherine M. Miller. (Deemer v. Kessinger, 206 Ill. 57-) The use of the word “heirs” in the connection in which it is used in both of these cases is not a common one. We find no decisions in this State that have construed the word in such connection. Preston, in his work on Estates, (vol. 1, p. 479 and the following pages,) discusses in detail this word and its meaning in connection with an estate in fee or a freehold estate, and on page 481 says that “a gift during widowhood is, by construction of law, to determine on the death of A, or, which shall first happen, on her marriage, and for that reason is merely an estate for life though limited to her and to her heirs; hence an estate to A or B and his or her heirs, during widowhood, will, notwithstanding the limitation to the heirs, determine on the death of A or of B, unless it should determine, in the meantime, by her marriage.” By the same line of reasoning, plainly under this authority both of these clauses would be construed as giving a life estate to the grantee. Unless this be the construction then the meaning of the deed is ambiguous, and the court has the right, in construing it, to consider the intention of the parties as gathered from the surrounding circumstances as they existed at the time it was executed, and give the deed a construction such as the parties themselves intended, if consistent with the language used. Seymour v. Bowles, 172 Ill. 521; 17 Am. & Eng. Ency. of Law, (2d ed.) p. 21; Rubens v. Hill, 213 Ill. 523; Storey v. Storey, 125 id. 608; Mueller v. Northwestern University, 195 id. 236.

There can be no dispute that when this deed was signed the parties were simply trying to carry into effect the agreement they had signed the previous summer. Under the authorities heretofore cited, the intention of the parties in a case of ambiguity can be gathered from surrounding circumstances, and this contract may properly be examined in order to find out just what interest was intended to be conveyed by the deed. We have so held in Piper v. Connelly, 108 Ill. 646. The law presumes, also, that if a person makes a will she intends to dispose of her entire estate. (Heller v. Heller, 147 Ill. 621.) Catherine M. Miller, deceased, although she left a will, made no mention of this real estate. Erom 1878, the time when this deed was made, until 1904, when Catherine M. Miller died,—about twenty-six years,—all the parties to this litigation, as well as the grantee in the deed, construed the instrument as if it had only conveyed a life estate. The term “heirs” is not always used with the same meaning. It may be used as a word of limitation or as a word of purchase, according to the context. (Dick v. Ricker, 222 Ill. 413; Seymour v. Bowles, supra.) When a deed was evidently drafted by one not skilled in such work, greater latitude is permitted and less attention paid to technical words in construing the instrument than would otherwise be the case. (Campbell v. Gilbert, 57 Ala. 569; Griswold v. Hicks, 132 Ill. 494.) An examination of the copy of this deed given in the statement shows that whatever ambiguity exists has arisen on account of the printed and written parts of the deed not being in entire harmony. Had the printed form of warranty deed not been used, it is very clear that the term “heirs,” printed in both the granting and habendum clauses, would not have been inserted in the writing. The fact that the words “the sum of” and the word “dollars,” in the granting clause, were not erased shows the lack of skill in the drafter of the instrument, as does also the leaving of the term “heirs” in both clauses, while the fact that the word “forever,” in the habendum clause, was stricken out, furnishes very strong evidence that the interest intended to be granted was not the entire fee, but only a life estate. If there be any conflict in a deed between the printed part and the part written in, the latter will control in construing it. Loveless v. Thomas, 152 Ill. 479; City of Chicago v. Weir, 165 id. 582; 17 Am. & Eng. Ency. of Law, (2d ed.) p. 21; White & Gleason v. City of Chicago, 188 Ill. 392.

The case of Lambe v. Drayton, 182 Ill. 110, is relied upon by appellants to support their construction of the deed. That case held that a fee simple devise in a will could not be limited and reduced to a life estate by a subsequent so-called habendum clause. The reasoning in that case does not conflict with the construction here placed upon this deed. Manifestly, the intention of the parties when the deed now under discussion was executed was to convey only a life estate. The entire fee was not conveyed by the deed, and Ho at7 tempt was made, by way of limitation, to convey the remainder to the heirs. The rule in Shelley’s case cannot be here invoiced, and there is no rule of law that prevents the carrying out the plain intent of the parties to the deed. Riggin v. Love, 72 Ill. 553; Cover v. James, 217 id. 309.

The chancellor, in entering the decree, reformed the deed by striking out the word “heirs.” As our conclusion is that the deed conveyed only a life estate it is unnecessary to reform the deed.

In view of what we have already said it will serve no useful purpose to discuss the other points raised in the briefs.

Finding no reversible error in the record the decree of the circuit court is affirmed.

Dgcrgg affirmgd_