Bowen v. John

Mr. Justice Boggs

delivered the opinion of the court:

This was a proceeding in chancery for the partition of certain lands, the ownership whereof depends upon the true construction of the second clause of the will of James M. John, deceased. Said second clause of the will reads as follows:

“Second—I give and devise unto my brother, Thomas John, and my sisters, Caroline John and Eliza John, in equal parts or shares between them, all my right, title, interest and claim in and to the south-west quarter of section twenty-seven (27), in township twenty-seven (27), north, range two (2), west of the third principal meridian, in the county and State aforesaid; and also ten acres off of the north end of all that part of the north-east quarter of section twenty-one (21), in township twenty-seven (27), north, range two (2), west of the third principal meridian, which is situated and lies west of the public road running north and south through said last named quarter section, the same being ten acres, more or less. And it is my will, and I so order and direct, that neither of said tracts of land, nor any part thereof, shall-be sold nor mortgaged nor otherwise encumbered during the lifetime of either of said devisees, unless it shall become absolutely and indispensably necessary for their support. And it is my will when one of said devisees shall decease or depart this life, that hi's or her share and interest in said premises shall descend to and vest in the surviving devisees aforesaid, and that when two’ of said devisees shall have departed this life, then their interest and share in said premises shall descend to and vest in the survivor of said devisees, and such sole survivor shall then be sole owner in fee of all said premises, and shall so continue to be the sole owner thereof during the remainder of the life of such sole survivor: Provided, however, that such sole survivor may sell said premises, or any part thereof, if it should be absolutely and indispensably necessary to do so for the support of such sole survivor.”

The three devisees mentioned in the clause were a brother and two sisters of the testator. All were dead when this petition for partition was filed. Eliza died July 16, 1884, and Caroline in the year 1892, and neither of them left a child, children or descendants of a child or children. Thomas John thereupon became the sole survivor of the three devisees. He departed this life March 28, 1901, leaving neither child, children nor descendants thereof. The contention of the appellants is, that under the true construction of this clause the said Thomas John, as sole surviving devisee, took a life estate.

In no other clause of the will is there any express devise or disposition made of any supposed remainder in the lands described in said second clause. The will contains a general residuary clause, which devises and bequeaths “all the rest and residue of the estate which is not hereinbefore disposed of” to the three devisees named in the said second clause of the will. This general residuary clause is to be regarded as having been introduced to prevent intestacy as to any part or portion of the estate not disposed of by the will, and the suggestion that it was the intent of the testator to create a life estate in the premises described in the second clause of the will in the three devisees, and by this general residuary clause to devise the remainder in fee in the same three devisees, cannot be entertained. We think clause 2 devises an estate in fee to the sole surviving devisee. Words of inheritance are not now essential to create an estate in fee simple, but every estate in lands granted or devised is to be deemed a fee simple estate of inheritance if a less estate be not limited by express words or does not appear to have been granted, conveyed or devised by construction or operation of law. (1 Starr & Cur. Stat. chap. 30, sec. 14, p. 925.)

The terms “fee,” “fee simple” and “fee simple absolute” are equivalent terms. (12 Am. & Eng. Ency. of Law,— 2d ed.—890.) An estate in fee simple is the greatest estate or interest which one can possess in lands. The term “owner,” when applied to real estate, means an estate in fee simple. (Illinois Mutual Ins. Co. v. Marseilles Manf. Co. 1 Gilm. 236.) The language employed in the second clause of the will is, that the said Thomas John, sole survivor of the devisees, shall be “the sole owner in fee of all said premises.” The further declaration of the clause that such sole survivor should continue to be the sole owner in fee during the remainder of his life, had no effect to detract from the character and nature of the estate so granted to him. It is by no means equivalent to a declaration that an estate less than a fee was intended to be devised. The estate remained, notwithstanding this expression, an estate of inheritance. The further expression in said second clause that the sole survivor may sell the premises, or any part thereof, if absolutely and indispensably necessary for his support, cannot be construed to'divest the estate in fee vested in said survivor by the preceding- express declaration found in the clause, that said survivor should be sole owner in fee.

It is the policy of the law, well evinced by statutory enactment and judicial decisions of this court, that every estate shall be deemed to be an estate in fee unless a contrary intention is clearly expressed. Where a testator in a devise employs language sufficient to pass the fee simple title, in the absence of the expression of a clear intention to cut down the fee to a life estate an estate in fee simple will pass. (Wicker v. Ray, 118 Ill. 472.) “It is the' disposition of courts to adopt such a construction as will give an estate of inheritance to the first donee. When, therefore, the fee is devised by a clause or clauses of a will, and other portions or clauses are relied on as limiting or qualifying the estate thus given, they should be such as show a clear intention on the part of the testator to thus limit or qualify the estate granted. Such an intent should clearly and unequivocally appear.” Giles v. Anslow, 128 Ill. 187; Davis v. Ripley, 194 id. 399; Walker v. Pritchard, 121 id. 221.

The intention to confer a fee having been clearly expressed by the testator, the estate is not to be cut down by dubious, vague and ambiguous expressions which follow the explicit devise of the fee. Neither could the testator, after - having devised an estate in fee, take from such estate the quality of inheritance or the right of the owner to alien the estate, for that would be to grant an estate in fee simple and then prevent the consequences of ownership in fee from attaching thereto, which the law will not permit to be done. Jones v. Port Huron Engine and Thresher Co. 171 Ill. 502.

The court correctly construed the will to confer an estate in fee upon said Thomas John, sole surviving devisee. The decree is therefore affirmed.

Decree affirmed.