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Orme v. Northern Trust Co.

JANUARY 9, 1961.




Appeal from the Circuit Court of Cook county; the Hon. CORNELIUS J. HARRINGTON, Judge, presiding. Affirmed.


Rehearing denied and opinion modified February 27, 1961.

Rehearing denied February 9, 1961.

This is a suit to construe the will of Mrs. Louisa G. Bigelow, made in Geneva, Switzerland in 1873. Her three minor granddaughters were named primary beneficiaries. In 1941 Louise de Haven, one of the granddaughters, died testate in the United States devising her interest in the Bigelow estate to plaintiff Orme. He sued for construction of the will in 1943 and in 1959 a decree was entered adverse to him. The decree allowed substantial attorneys' fees and the United States Attorney General, a substitute defendant, appealed challenging the allowances. Orme and several other parties then cross-appealed.

Mrs. Bigelow sojourned in Geneva, Switzerland from about 1871 until her death in 1873. She had made her will on May 26, 1873. Her three granddaughters, Josephine, Louise and Sarah de Haven, then eight, six and four years old respectively, resided with her and were her only heirs at law. At her death Mrs. Bigelow owned a number of parcels of Chicago real estate which she devised as part of the corpus of a testamentary trust provided for in her will. The real estate itself has been sold since the filing of the present suit, and the proceeds are trust assets. The Northern Trust Company, as successor trustee, is administering the trust.

Under the Bigelow will the trustees were directed to collect the income from the real estate, pay expenses, and pay over the residue of the income to the three granddaughters "in equal parts, individually, during their natural lives." The trust corpus was to be distributed only on the death of all three grandchildren. Then the estate was to be divided equally among the "children or heirs" of the grandchildren, "one-third to the child or children, heirs or heirs" of each grandchild.

Josephine de Haven Caldwell, the eldest grandchild, died intestate in 1919 leaving her five children as her only heirs at law. Louise de Haven married Baron Curt von Alten, a German citizen, in 1896. She had two daughters, who are German nationals. She became estranged from her family before World War I, returned to this country after the war, obtained a Nevada divorce from her German husband in 1921, in 1923 adopted Raymond Edwin de Haven and died testate in 1941. In her will she named plaintiff Orme devisee of her interest in the Bigelow estate. Sarah de Haven married Hans von Campe who died before her. She died in Switzerland in 1951, leaving three children and a will devising to her daughter, defendant Alice von Campe Lohrer, whatever interest she had under the Bigelow will.

On March 22, 1949, the Attorney General, as Successor to the Alien Property Custodian by virtue of the Trading With The Enemy Act, vested the interests of the German nationals, original defendants, including the daughters of Louise de Haven. His petition for leave to appear and defend in lieu of the German nationals was granted, and on appeal to the Supreme Court in 1952, the order of substitution was sustained. Orme v. Northern Trust Co., 410 Ill. 354 (1951), cert. denied, Von Hardenberg v. McGrath, 343 U.S. 921 (1952).

When Josephine Caldwell died her children demanded the income which had been previously paid her. The Trustee declined to accede to the demand because the Bigelow will made no express provision for disposition of the income upon the death of a granddaughter leaving issue surviving. It provided only for disposition of income in the event of the death of a granddaughter "without issue surviving." The Caldwell children sued for construction of the will and a decree was entered granting the income to four of Josephine's children and her daughter-in-law and the latter's children. This decree is called the "1920 decree."

The pleadings in the instant case raised the issues whether the "1920 decree" was res judicata of Orme's suit; whether the Rule in Shelley's case applied so as to enable Louise de Haven to devise her interest to Orme; and whether Raymond de Haven qualified as a beneficiary under the Bigelow will. The issues were referred to a Master in Chancery who found that the 1920 decree "necessarily" decided the Rule in Shelley's case did not apply to vest a fee in Louise de Haven. But he also construed the will against Orme. He also found that Raymond de Haven did not qualify as a beneficiary under the Bigelow will. The Master recommended a decree accordingly. The Chancellor approved the report and decreed that the Bigelow will was valid, "capable of construction" and under it the three granddaughters of Mrs. Bigelow were given life estates with remainders to the heirs of their bodies. And the decree allowed the various parties the attorneys' fees recommended by the Master.

We shall consider the issues on appeal necessary for our decision in what we consider the most logical order.


The Caldwell decree in 1920 awarded the income from Josephine's share to her children, with the share of her son William going to his wife and children as a result of certain conveyances by William through Josephine to them. In dictum the Chancellor sought to apply the construction with respect to Josephine's share to the interests of Louise and Sarah.

Cross-appellants Caldwells and the Attorney General contend that the "1920 decree" is res judicata and bars Orme's claim that the Rule in Shelley's case operated to vest a fee in Louise de Haven and that he is owner of her fee interest by virtue of the devise in her will. They say that that decree necessarily decided that the Rule in Shelley's case did not apply and that the decree settled the question of the interests of Louise and Sarah de Haven as well as that of Josephine.

We think that the 1920 decree is not res judicata of the issue raised by Orme. The decree does not expressly hold that the Rule in Shelley's case did not apply to Josephine Caldwell's interest nor did the dictum as to Louise and Sarah's interest mention the Rule. The decree did not find either that they took by descent through Josephine or that they took by purchase through the Bigelow will. To decide the questions before him the Chancellor in 1920 did not necessarily have to determine by which of the two alternative methods Josephine's interest passed to her children. This he carefully avoided. We agree with Orme that the 1920 decree states the result of a construction but does not state the method of construction or interpretation of the language of the will.

This conclusion on the res judicata issue coincides with that of three Chancellors before whom motions to strike and dismiss Orme's suit were made.


In paragraph 6th of the will, after providing life estates in the income for her three granddaughters, Mrs. Bigelow directed that no division of the corpus should be made until the "death of all" three; then all of her property was to "be divided equally among the children or heirs of [her] grandchildren. . ., one third to the child or children, heir or heirs" of each. She went on to provide for gifts over in the event of a death "without issue."

Plaintiff Orme contends the words "children or heirs," properly construed, means heirs in the technical, legal sense and that consequently the Rule in Shelley's case operates so as to vest in Louise de Haven a fee simple interest in the Chicago real estate which she devised to him.

No Illinois case has construed the precise words "children or heirs." Plaintiff cites the Pennsylvania case of Shapley v. Diehl, 203 Pa. 566, 53 A. 374 (1902) wherein the words "children or heirs" were used. That case is distinguished from this because under a Pennsylvania statute fee tails merge to create a fee in the first taker. Therefore the court had only to determine that the term "children or heirs" described an estate in fee tail. Even if "children or heirs" was there construed to mean "issue" the Pennsylvania court could have applied the Rule in Shelley's case. In Illinois the Rule applies only when the words can be construed to mean "heirs" in the technical sense. Hanes v. Central Ill. Utilities Co., 262 Ill. 86, 104 N.E. 156 (1914). The case, moreover, was not complicated by gifts over as in the Bigelow will. Finally, in the Pennsylvania case there was but one Shapley child in existence when the will was made, this "naturally suggesting the very common form of expression `child or children.'" 53 Atl. at 375. The court there, as our Supreme Court has done in Hartwick v. Heberling, 364 Ill. 523, 537 (1936), 4 N.E.2d 965, took into consideration the fact of children in existence in resolving ambiguities. It suggested that the grantor, "the thought occurring to him that there might not be any children, . . . added `or heirs' to complete the expression of his intent." 53 Atl. at 375. Here, however, Mrs. Bigelow's estate plan anticipates children or their lineal descendants surviving.

[2-4] Where the word "heirs" is used it should be given its technical meaning unless qualified by other language which shows beyond reasonable doubt that a different meaning be given. Kaup v. Weathers, 302 Ill. 569 (1922). On the other hand "`children' . . . does not ordinarily mean `heirs' . . . unless the context of the will leaves no doubt of such intention." Hanes v. Central Ill. Utilities Co., 262 Ill. 86, 89, 104 N.E. 156 (1914). Also, although "the word `issue' as a general thing, means lineal descendants indefinitely, . . . whether it means descendants generally, or merely children, will depend upon the intention of the testator . . ." gleaned from the entire will. Arnold v. Alden, 173 Ill. 229, 238-39, 50 N.E. 704 (1898). The ordinary meaning of "issue" is "to proceed out of; offspring of a common ancestor; and includes not only a child but descendants of a child." Miller v. Wick, 311 Ill. 269, 275, 142 N.E. 490 (1924); Tree v. Continental Ill. Nat. Bank & Trust Co., 346 Ill. App. 509, 521, 105 N.E.2d 324 (1952).

The meaning of each of the words "children," "heirs," or "issue," standing alone, may be influenced by other language in a will and when used together their total meaning may be influenced by each other as well as by other language in the will. See Porter v. Cutler, 380 Ill. 215, 43 N.E.2d 929 (1942); Noe v. Moseley, 377 Ill. 152, 36 N.E.2d 240 (1941); Hege v. Provident Mut. Life Ins. Co., 341 Ill. 559, 173 N.E. 610 (1930); Patterson v. McCay, 313 Ill. 491, 145 N.E. 87 (1924); Kaup v. Weathers, 302 Ill. 569, 35 N.E. 38 (1922); Cook v. Sober, 302 Ill. 498, 135 N.E. 60 (1922); Lee v. Roberson, 297 Ill. 321, 130 N.E. 774 (1921); Sellers v. Rike, 292 Ill. 468, 127 N.E. 24 (1920); Stisser v. Stisser, 235 Ill. 207, 85 N.E. 240 (1908); Dick v. Ricker, 222 Ill. 413, 78 N.E. 823 (1906); ...

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