Hamlin v. United States Express Co. , 107 Ill. 443 ( 1883 )

Mr. Justice Scholpield

delivered the opinion of the Court:

The only question presented upon this record is, whether Lucinda Woods took a title in fee simple under the will of her husband, George Woods. If she did, the judgment below must be reversed. If she did not, it must be affirmed.

The provisions of the will material to the question are as follows: “After the payment of my just debts and funeral expenses, I give, devise and bequeath all my estate, real and personal, of whatever kind and wherever situated, to my wife, Lucinda Woods, for her own use and benefit, with full power to hold, use, enjoy or dispose of the same in any manner she may choose, and, if she so desires, she shall have full power and authority to convey any and all of my real estate by absolute conveyance in fee simple. After the death of my wife, Lucinda Woods, it is my will that all my real estate which shall not have been conveyed by her shall be sold at the best advantage, and in such manner as shall seem for the best interest of said estate, and of the proceeds of said sale it is my will that $5000 be invested for the use and benefit of Carrie Sweet, in the following manner,” etc. “$5000 to be for th.e benefit of George W. Sweet; $5000 for the benefit of Marion H. Sweet; $2000 to be paid to Joanna D. Stokes,” etc.

It was admitted upon the trial that Joanna D. Stokes, named in said will, was a favorite niece of George Woods; that - Carrie Sweet was raised by Mr. and Mrs. Woods as a member of the family; that all the legatees are living, and are taking steps to have said real estate sold as provided by the will, and that Mr. and Mrs. Woods never had any children.

The doctrine relied upon by counsel for plaintiffs in error, that where there is a devise of an unlimited power of disposition of an estate in such manner as the devisee may think fit, a limitation over is inoperative and void by reason of its repugnance to the principal devise, is not controverted by counsel for defendant in error, and is undoubtedly well established.' (Fairman v. Beal, 14 Ill. 244, Welsch v. Belleville Savings Bank, 94 id. 203, and other authorities cited.) But this doctrine has no application to a case where a life estate is clearly given to the first taker. (Welsch v. Belleville Savings Bank, supra.) “If an estate be given to a person, generally or indefinitely, with a powTer of disposition, it carries a fee, unless the testator gives to the first taker an estate for life only, and annexes to it a power of disposition of the reversion. In that case the express limitation for life will control the operation of the power, and prevent it from enlarging the estate to a fee.” 4 Kent’s Com. (8th ed.) 603, *526.

The principal rules of construction in such cases have been often quoted by this court, and are familiar to the profession. They are: The intention of the testator, if not inconsistent with the rules of law, shall govern, and this intention is to be ascertained from the whole will and all its part's taken together. Every clause and provision, if possible, should have effect given to it according to the intention of the maker. A later clause of a will, when repugnant to a former provision, is to he considered as intending to modify or abrogate the former. It is not opposed to any rule of law to create a life estate, with power to sell and convey, and limit a remainder after its termination. Rountree v. Talbot, 89 Ill. 249; Brownfield v. Wilson, 78 id. 467; City of Peoria v. Darst, 101 id. 609; Bland et al. v. Bland et al. 103 id. 11; Henderson v. Blackburn, 104 id. 227; Bergan v. Cahill, 55 id. 160; Friedman v. Steiner, ante, p. 125; Smith v. Bell, 6 Pet. 68.

The language of this will is such as to leave no rational doubt that it was intended the wife of the testator should take a life estate, with power of disposing of and conveying the fee, and that the specific legatees should take the remainder. The wife is given everything, with full power to use, enjoy and dispose of the same, and convey the real estate by absolute conveyance in fee simple. This, if unqualified, would, of course, vest a fee simple in the real estate; but being qualified, in order to give the language of the qualification any effect this language must be restricted to the life of the wife of the testator. It is contemplated there will be real estate which shall not have been sold by the wife in her lifetime, and this is to be sold, not for the benefit of the wife’s estate, but for the benefit of the estate of the testator, and the proceeds divided among other designated objects of his bounty. Having no children, it was not unnatural, but was, indeed, most reasonable, that the testator should design that his wife should have the use of his entire estate during her life, with the privilege of conveying whatever part of it she might deem necessary, and yet at the same time intend that what she should not consume should go to other objects of his bounty,—those standing next highest in his affections. The latter part of the will is to be considered no less than the former part, and to the extent there is repugnance the language of the former part is to he read as modified by that of the latter part. So reading it, the words, “during her ,natural life, ” must be understood as annexed to and qualifying the first clause. The cases before cited as quoting the tules of construction applicable to the present case, will be found to be entirely analogous in principle.

We see no cause to disturb the judgment below, and it is therefore affirmed.

Judgment affirmed.