Downing v. Grigsby , 251 Ill. 568 ( 1911 )

Mr. Justice Dunn

delivered the opinion of the court:

Strother Grigsby died in 1897, leaving the appellee, his widow, and his four children by a former wife, his heirs. He left a will, by the second clause of which he devised to his widow a life estate in lot 7, block 23, in the town of Pittsfield, — their homestead. The appellee filed a bill for the partition of these premises, subject to such life estate, claiming one-half of the fee in remainder by virtue of the fifth clause of the will. The second and fifth clauses are as follows:

“Second- — I will and bequeath to toy beloved wife, Missouri E. Grigsby, all my household property used about my residence in the town of Pittsfield, including my horse and surrey, which I give to her in lieu of special dower. I also devise unto my said wife, Missouri E. Grigsby, during her natural life and at her death to revert to my estate, my home place in Pittsfield, being lot seven (7), in block twenty-three (23), in said town of Pittsfield, in Pike county, Illinois.

“Fifth — It is my will, after the payment of all my debts, whether the same may be secured by mortgage or " not, all the rest and residue of my estate shall be divided as follows, to-wit: To my wife, Missouri E. Grigsby, one-half ; to my son James EL Grigsby one-eighth; to my son Hug'll DeLoss Grigsby one-eighth; to my daughter, Lola V. Anderson, one-eighth, and to my son Elmer E. Grigsby one-eig'hth.”

The court decreed a partition in accordance with the prayer of the bill, and the defendants have appealed.

The intention of the testator, which must control in the construction of his will, is the intention expressed by its words and not an intention which it may be inferred from circumstances he might have had but has failed to express. The second clause of this will deals with the provision of a home for the testator’s widow during her lifetime, and in it the testator has expressed a manifest intention that she should have an estate for her life in their homestead. In that clause he malees no other disposition of the homestead, but merely declares that at her death it is to revert to his estate. This is the legal result of the grant of a life estate without more. The reversion remains in the grantor, and upon the expiration of the life estate the enjoyment and possession of the property return to the grantor or his heirs or assigns. The ordinary meaning of the words “revert to my estate” is, “return to the aggregate of all the property which I may leave at my death.”

It is contended on behalf of appellants■ that the words “at her death to revert to my estate,” constitute a devise of a contingent remainder to those persons who may answer the description of the testator’s heirs at the time of the death of the appellee. Wills speak from the death of the testator, and, unless controlled by a manifest intention to the contrary, estates devised will be' construed as vesting at that time. The words “at her death” refer not to the time of ascertaining the persons who may be entitled to the estate; but to the time when such persons shall come into the possession and enjoyment of it. The word “estate” is not equivalent to ‘‘heirs.” When a man makes a will the business in which he engages is the distribution of his estate, usually among his heirs and perhaps other persons. The estate is the subject matter with which he deals; the heirs are possible distributees. When a portion of the estate has been placed temporarily at the use or .disposal of a devisee, it is a natural form of expression to declare that upon the cessation of the use such portion shall return to the estate, or fall into the estate, o'r become a part of the estate or of the residue of the estate. All these expressions have substantially the same meaning. This natural meaning of the words may be controlled by a different intention manifested by the language of the will, but unless so controlled it will be given effect. Since the remainder after the life estate to the widow is not otherwise disposed of, it passes by the devise, in the fifth clause, of “all the rest and residue of. my estate.”

It is insisted that it is absurd to suppose that the testator intended to give an estate for life to his widow by the second clause of his will and half the fee in remainder by the fifth clause, and that there never was a case where an estate for life was expressly devised to the first taker that the devisor intended that he should have any more. The latter proposition is true enough where the court undertakes the construction only of the clause creating the life estate, and this expression has been used by this court in reference to devises involving the rule in Shelley’s case. But there is nothing inherently absurd in a testator’s giving to one of several to whom a fee is devised the enjoyment of the whole property during his lifetime, or to a life tenant of the whole a share of the fee in remainder. In Smith v. Winsor, 239 Ill. 567, we stated that the weight of authority established the rule that in case of a devise for life to one who was an heir of the testator with remainder in fee to the testator’s heirs, the devise of the estate for life in all the property will not exclude the life tenant from sharing in the remainder, though an exception to this rule was recognized in Johnson v. Askey, 190 Ill. 58, where the life tenant is the sole heir and the remainder is devised to “heirs” of the testator; and the latter case, while stating the exception, recognized the. rule and referred to and distinguished the case of Kellett v. Shepard, 139 Ill. 433, where it was affirmed.

Some reliance is placed by the appellants upon the acceptance by the appellee of the provisions of the will relating to the personal property as an estoppel against her present claim. It does not appear, however, that she has received anything or done any act inconsistent with her present contention, or upon which any of the appellants have relied or could have relied and acted to their disadvantage. Her failure to demand a partition or seek a construction of the will sooner cannot operate to affect her rights, particularly in the absence of any disadvantage to the appellants.

It is also insisted that partition cannot be had during the existence of the life estate, and the appellants cite Dee v. Dee, 212 Ill. 338, in support of this contention. Jn that case it was held from the language of the will that it was the purpose of the testator to postpone a division of the estate until the death of the widow. This will manifests no such intention, and no legal or equitable reason is shown which should control the ordinary right of an adult tenant in common to a partition of the estate.

After the testator’s death one of his sons died, leaving a widow and two sons his heirs. The decree awarded the widow dower in the share of her sons, and it is argued that this was erroneous. It was erroneous but it is not assigned as error. The widow joined in this appeal, together with her sons, who are adults and all those claiming under the will of Strother Grigsby, except the appellee. The assignments of error question only the construction of the will and the action of the court in decreeing partition. Only the sons of the deceased son can complain of the provisions of the decree in regard to dower, and they have not done so.

Decree affirmed.