APPEAL from the Circuit Court of Sangamon County; the Hon.
DeWITT S. CROW, Judge, presiding.
MR. CHIEF JUSTICE DAILY DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 19, 1959.
This is an action commenced in the circuit court of Sangamon County by certain heirs of Alice Murray, Sr., deceased, to construe her will, to partition a 90-acre tract of real estate located in Sangamon County in which she had a one-third interest, and for an accounting. Some 40 others, being kindred of the decedent, were named as parties defendant together with Charles A. Slivka, a contract purchaser of the premises. Answers and counterclaims were filed by the various parties in interest which placed in issue not only the will construction and partition problems but also the interpretation of a purchase contract not signed by all the heirs, the question as to who should be bound thereunder, and whether the contract could be specifically enforced by the vendee. The cause was referred to a master in chancery who found that certain defendants, namely Agnes Murray and Harold Murray, had by inheritance acquired a substantial portion of the property interest owned by Alice Murray, Sr., that they were not bound by the real-estate contract executed by other parties in interest, and that the vendee, Charles A. Slivka, should account to them for rents and profits realized from the premises since he took possession in 1948. A decree of partition was subsequently entered in accordance with the master's recommendations which expressly found that no just reason existed for delaying an appeal thereon, and a freehold being involved, direct appeal has been taken to this court by the plaintiffs and the contract vendee.
At the time of her death in 1914, Alice Murray, Sr., owned an undivided one-third fee-simple interest, and her children, Alice Murray, Jr., Margaret Foley, and Michael J. Murray, owned an undivided two-thirds interest, in the north half of the northwest quarter and a part of the northeast quarter of section 19, township 15 north, range 5 west of the third principal meridian, Sangamon County, Illinois. The will of the said Alice Murray, Sr., devised her interest as follows:
"Second: I give and devise to my daughter Alice Murray a life estate in my Real Estate with remainder over in fee to Michael J. Murray and John J. Murray my sons, and Margaret Foley, my daughter, in equal parts provided that if either said Michael, John or Margaret shall die before said Alice the life tenant the share (one-third) devised to such as shall die shall be taken in equal parts by the said survivors."
Margaret Foley departed this life intestate on August 20, 1932, leaving surviving her husband, James Foley, and her children, Catherine Leahy, James Foley, Alice O'Brien, Edward Foley, and Charles Foley. The husband has since died leaving the children as his heirs; Edward Foley passed away on February 20, 1933, leaving his wife, Opal Foley, as his only heir; and Catherine Leahy died during the pendency of these proceedings leaving her husband, Joseph J. Leahy, and three daughters surviving. The children of Margaret Foley, being Catherine Leahy, James Foley, Alice O'Brien, and Charles Foley, together with the said Joseph J. Leahy, are the plaintiffs-appellants in this cause.
Michael J. Murray conveyed his interest in the subject property to Alice Murray, Jr., on September 22, 1920, and subsequently passed away on June 18, 1937, intestate, leaving his wife, Elizabeth Murray, and his children, Kermit J. Murray, Thomas Murray, James Murray, and Geraldine Murray, all defendants herein, as his surviving heirs.
John J. Murray, the last living remainderman, died intestate on May 5, 1941, with his wife, Agnes Murray, and his sons, Clement J. Murray and Harold Murray as his only heirs-at-law. Clement J. Murray passed away intestate on July 24, 1952, leaving his mother and brother surviving. The said Agnes Murray and Harold Murray, defendants, are sometimes referred to as the "heirs of John" and were the prevailing parties in the lower court.
Alice Murray, Jr., the life tenant under the aforesaid will and grantee of Michael J. Murray, departed this life testate on September 20, 1946, devising all her interest therein to Kermit J. Murray, defendant, a son of the said Michael J. Murray. During the pendency of these proceedings, Kermit J. Murray died intestate leaving his wife, Ann M. Murray, and his minor children, the latter being represented herein by a guardian ad litem.
On May 3, 1948, a real-estate contract to sell the 90-acre parcel for $27,000 was executed by Kermit J. Murray and Catherine M. Leahy, as vendors, and Charles A. Slivka, as vendee, under which $2,500 of the purchase money was placed in escrow pending the closing of the transaction, with the balance to be paid on or before September 1, 1948, upon receipt of a warranty deed conveying mechantable title. The contract also stated that the sale was subject only to the lien of the 1948 taxes and the rights of the year-to-year tenant in possession, that the vendee should receive the landlord's share of the 1948 crops and could at any time remove the farm buildings from the premises, and contained the usual covenants concerning abstract of title, insurance, and so forth. No provision was made for the payment of interest on the unpaid balance of the purchase price. Upon examining the abstract of title, the vendee discovered that the vendors did not own the entire fee and reported this fact in writing to the vendors on May 18, 1948. Thereafter, the vendee notified the tenant that he was the property owner and proceeded to collect rents and manage the property as his own. On September 2, 1948, being the day after the transaction was to have been closed, the vendee informed the vendors by letter that he was ready and willing to complete his part of the bargain, and since that time has kept the cash sum of $24,500 uninvested and available for immediate payment. Although there is a dispute as to the quantity, it is agreed that Agnes Murray and Harold Murray own an undivided interest in the premises, and since they have refused to join in the deed, the vendors have been unable to convey mechantable title. The plaintiffs James Foley, Alice O'Brien, and Charles Foley, although not parties to the original agreement, have since ratified the contract so as to be bound thereby.
Many contentions have been advanced by the various parties to this proceeding. The plaintiffs argue that under the will of Alice Murray, Sr., a life estate was created in favor of Alice Murray, Jr., with an equal remainder interest vesting in Michael J. Murray, John J. Murray, and Margaret Foley at the testator's death, each remainder interest being subject however to divestiture (1) by the death of its owner prior to that of the life tenant plus (2) the survival of the life tenant by at least one remainderman. Since no remainderman survived Alice Murray, Jr., they contend that no divestiture occurred and the interests of Margaret, Michael, and John passed to the heirs and assigns of each, freed from such conditions, so as to now vest equally in the plaintiffs, as heirs of Margaret, in Kermit J. Murray, as the devisee of Alice Murray, Jr., the grantee of Michael, and in Agnes Murray and Harold Murray, the "heirs of John," respectively. The plaintiffs also urge that even though the "heirs of John" did not execute the sales contract, by their acts and acquiescence they became bound by its terms on the principles of estoppel and ratification. As to the vendee, they insist he should be required to pay interest on the purchase price during the time he received the rentals from the premises.
On the other hand, the "heirs of John" interpret the will as creating vested remainders in each of the three named children with divestiture in favor of the survivors upon the death of a remainderman before the life tenant. They argue that such divestiture applies only to the remainder interest acquired under the will and not to any interest acquired as a survivor, and that upon the death of two remaindermen, the interests of John J. Murray became absolute without regard to when he died. Therefore, as they see it, upon the death of Margaret, her interest passed equally to Alice Murray, Jr., and John, the former having previously acquired Michael's interest. When Michael died, his original interest passed to John but the portion which was acquired as a survivor of Margaret remained vested in Alice Murray, Jr. Finally, upon John's death, his original interest plus the interests which he had acquired as the survivor of both Margaret and Michael, passed to his heirs in fee simple. These defendants also deny that they have in any manner become bound by the contract.
The vendee, Charles A. Slivka, contends that the life tenant must be included within the term "survivors," and that since she outlived the remaindermen, the bulk of the Alice Murray, Sr., interest passed to her. He also argues that the "heirs of John" are bound by the contract, that he was under no obligation to pay interest on the contract balance, and that the vendors should reimburse him for any rents which he may be forced to pay to the "heirs of John" as a result of these proceedings. The guardian ad litem for the minor children of Kermit J. Murray insists the the vendee has not complied with the contract provisions so as to warrant specific performance.
Admittedly, all remainder interests initially vested upon the testator's death. (See Fleshner v. Fleshner, 378 Ill. 536). Therefore we are concerned only with the divestiture effect of the will provisions. The second paragraph thereof expressly created a life estate "with remainder over in fee to Michael J. Murray and John J. Murray, my sons, and Margaret Foley, my daughter in equal parts." If no more had been said, it is evident that each of these children would have acquired an absolute undivided fee-simple interest upon the testator's death which would have thereafter passed to their respective heirs or assigns regardless of when the remainderman's death occurred. However, the will goes on to state that "if either said Michael, John or Margaret shall die before said Alice the life tenant the share (one-third) devised to such as shall die shall be taken in equal parts by the said survivors." Clearly, the word "survivors" refers to the enumerated "Michael, John or Margaret" and was not intended to include Alice, the life tenant, so as to permit her to share in a divested estate. Neither do we interpret this language to mean that divestiture could occur only if at least one remainderman survived the life tenant. To do so would not only place a strained interpretation upon otherwise unambiguous language but, in case a remainderman died before the life tenant, would also postpone the operation of the divestiture conditions until it could be determined whether the holder of the life estate would outlive all the remaindermen. If she did, then according to the plaintiff's theory no divestiture would have occurred, but if she did not, then her death would have the retroactive effect of activating an otherwise dormant executory devise. Such abeyances of title are not to be encouraged. (19 Am.Jur., Estates, sec. 14.) By devising the remainder interests to three of her children, and to the survivors thereof should either die before the life tenant, the testator indicated that she intended to benefit these three children to the exclusion of her other two children and her grandchildren. In other ...