Webbe v. Webbe , 234 Ill. 442 ( 1908 )

Mr. Justice Farmer

delivered the opinion of the court:

The question presented for determination by this record is whether the four children of Henry Header, the testator, by the residuary clause of his will took an estate in fee simple, or whether they took life estates with remainder in fee to the heirs of their bodies.

The will gave the testator’s wife a life estate in all his real and personal property, except some specific articles of personal property, with power to sell and dispose of any portion of the personal property that should suit her convenience. The residuary clause is as follows: “The balance of all my estate, both'personal and real, I give and bequeath to my dear children, John Header, Ezekiel E. Header, Henry Header and Hatilda J. Smith, and to their personal and lawful heirs, share and sharq alike.”

Appellants contend that the words “personal and lawful heirs,” as used in the will, were intended to mean “heirs of the bodies,” which, under the statute de donis, would have created an estate tail, and which the sixth section of our statute on conveyances converted into a life estate in the children of the testator, with remainders in fee simple absolute to the person or- persons to whom the estate tail would, on the death of the first devisee, pass, according to the course of the common law, by virtue of such devise. There could be no question that if the word “personal” were omitted from the will the estate conferred upon the children of the testator would have been a fee simple. The will before the court in Deemer v. Kessinger, 206 Ill. 57, gave certain real estate to the testator’s son “and to his lawful heirs.” In a codicil to the will the testator stated that he desired to change the will to read that his son should have “use, benefit and control” of the lands “during his lifetime only, and that at his death said lands shall go to his lawful heirs.” The court said (p. 61) : “In legal effect the devise to William L. Deemer contained in the codicil and that contained in the will are the same,—that is to say, a freehold estate by each of said provisions is given to William L. Deemer and an estate in fee is limited immediately to his lawful heirs, and the fee to the premises, under the codicil as well as under the will, vested in William L. Deemer. * * * The words ‘nearest,’ ‘legal,’ ‘lawful,’ or similar expressions preceding the word ‘heirs,’ without other words of limitation, in a devise, do not convert the word ‘heirs’ from a word of limitation to that of purchase.” If the word “personal,” as used in the will, is to be construed as a limitation to the heirs of the bodies, of the testator’s children, then it would have to be held- that they took only a life estate; but if the words “personal and lawful heirs” were intended by the testator to mean the heirs, in general, of his children, then said children took an estate in fee.

Counsel say in their briefs they have been unable to find any case where the word “personal,” as used in this will, has been construed. As the word has no technical legal meaning, the question here involved is one of construction.

We cannot agree with counsel for appellants that as used in this will the words “personal and lawful heirs” are equivalent to or synonymous with “heirs of the body begotten.” It is true, as said by Preston, (vol. 2, p. 503) : “It is not necessary that the words of procreation, descriptive of the person by whom or on whose body the heirs inheritable under the entail are to be begotten, shall be in the clause of immediate gift to the donee. It will be sufficient that on the collective sense of the will or deed it appears that by the heirs described in that clause, heirs of the body were intended.” It is necessary to the creation of an estate tail that in addition to the word “heirs,” words of procreation to indicate the body from which the heirs are to proceed must be used or necessarily implied from the language of the will. 1 Washburn on Real Prop. sec. 199; Blackstone’s Com. book 2, p. 115; Butler v. Huestis, 68 Ill. 594; Metzen v. Schopp, 202 id. 275.

In Lehndorf v. Cope, 122 Ill. 317, it was said that while the ordinary form was to make the gift or grant to the donee or grantee “and the heirs of his body,” or “heirs upon her body to be begotten,” or “upon her body to be begotten by A,” there is no especial efficacy in these forms of words, and an estate tail, at common law, may be created by equivalent words “which, by necessary implication, describe and designate the particular body out of which the heir should proceed.” It has accordingly been held that in a will a devise to one “and his offspring,” “his lineal descendants,” “his issue,” “his seed,” and similar expressions in the connection used, were equivalent to the words “heirs of the body begotten.” The reason for such construction was, that the words were held to indicate the bodies out of which the heirs should issue, and clearly no straining of words was required in so construing the language used. In our opinion “personal and lawful heirs” no more indicates the bodies out of which the heirs shall issue than if the word “personal” had been omitted. They are no more words of limitation than the word “children” or heirs,” without other qualification. In Leiter v. Sheppard, 85 Ill. 242, a devise to a devisee, “and to her children, heirs and assigns after her,” was held to give the fee to the devisee. In Ryan v. Allen, 120 Ill. 648, it was held that the word “nearest,” “next” or “first” prefixed to the term “heirs,” without use of other words of limitation, would not vary or affect the devise. See, also, Silva v. Hopkinson, 158 Ill. 386; Vangieson v. Henderson, 150 id. 119.

It is contrary to the policy of our law and the spirit of our statute to tie up property and courts are not disposed to adopt a construction that will produce that result, but, on the contrary, where it can be done without violating a settled rule of law, they will adopt the construction that will give an estate of inheritance to the first taker. (Leiter v. Sheppard, supra; Davis v. Ripley, 194 Ill. 399; Kellett v. Shepard, 139 id. 433; Strawbridge v. Strawbridge, 220 id. 61; Dick v. Ricker, 222 id. 413.) In Bútler v. Huestis, supra, it was said (p. 603) : “If we are to interpret wills in the light of precedents, we ought to follow those that are most in harmony with the genius and laws of this country and the manners and customs of its people. We ought rather to be guided by those that would most effectually do justice, and not by such as would give an arbitrary and technical meaning to words never understood or contemplated by the testator; that may defeat all the objects of his beneficence, as manifested by the last solemn act of his life, in disposing of his property to those he may deem most worthy of his bounty.”

In the introductory part of the will the testator gives reasons for making the will and disposing of the property “which I may leave to my heirs at my death,” and no reference anywhere in the will is made by the testator about leaving property to any other persons than his widow and children. In the residuary clause he disposes of both personal and real estate, and the language used is applicable to both. No estate tail can be created in personal property, and the testator must be held to have intended that the devisees should take the personal property absolutely. The fact that he included real estate in the same sentence of the will, when not otherwise indicated in some other part of the instrument, indicates an intention that the devisees should take the same estate in the land that they were given in the personal property. This," of course, is not conclusive, but is an important circumstance to be considered in arriving at the intention of the testator. In Leiter v. Sheppard, supra, it was said (p. 247) : “The fact that personal estate was comprehended in this residuary clause and was expected by the testator to go, with the shares of real estate in question, to the legatees named, is an indication that an absolute estate was intended to be given them.” This language was substantially quoted and applied in Giles v. Anslow, 128 Ill. 187.

Greater latitude is allowed in the construction of wills than is allowed in the construction of deeds. In the for-' mer, effect is to be given to the intention of the testator, and this is to be determined from a consideration of all of the provisions of the instrument. When such intention is ascertained, if not in conflict with some rule of law, it is to be given effect in the construction of the will. In Blackmore v. Blackmore, 187 Ill. 102, the court said (p. 108) : “A technical construction of words and phrases, although prima facie the one which should prevail, will not be carried to the extent of defeating any obvious general intention of the testator, since wills are often prepared by those wholly unacquainted with the precise technical force of legal formulas, and who, from a consciousness of such deficiency, often exert themselves to drag in such phrases wherever they suppose they would probably have been adopted by an experienced draughtsman.”

Our conclusion is, from the language used by the testator in his will, that it was his intention to give his four children named, an estate in fee in the real estate, and to so construe the will is not contrary to and does not conflict with any settled rule of law or rule of property. It is unnecessary, therefore, to refer to the question of laches discussed by counsel in their briefs.

The decree of the circuit court is affirmed.

Decree affirmed..