APPEAL from the Circuit Court of Marshall County; the Hon.
HOWARD WHITE, Judge, presiding.
MR. JUSTICE HOUSE DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 25, 1963.
The second paragraph of the will of Utelles H. Griffin provides: "I give, devise and bequeath to my beloved wife, Dessie M. Griffin, [legal description] consisting of 183 acres more or less to have, to use and enjoy the income her natural life, subject to the payment of the taxes, insurance, repairs and interest, if any, during that time; and at her death I give, devise and bequeath to my son, Stanley W. Griffin, this farm, subject to the same conditions mentioned above; at his death I give, devise and bequeath to the children of Stanley W. Griffin, in their own right the said farm of 183 acres; then at their death, the farm is to be sold and the proceeds divided equally between my brothers and sisters, Perry Griffin, Benjamin H. Griffin, Jessie M. Glover, Daisy L. Griffin, Ella O. Morphew, the children of my deceased brother, Charles E. Griffin and herself; the children of a deceased brother and sister are to take the parents' share equally."
The will was executed in 1955, the testator died in August 1960 and the will was thereafter admitted to probate in the probate court of La Salle County. Stanley is an only child of the testator and Thomas Griffin is the only child of Stanley. The widow, Stanley and Thomas instituted this action to have the quoted paragraph of the testator's will construed. Defendants, Perry Griffin, Benjamin H. Griffin, Daisy L. Griffin and Ella O. Morphew, are the testator's living brothers and sisters who are named in the paragraph; defendants Maurine Weber and Viola Rowe are daughters of the testator's deceased sister Jessie Glover who is named in the paragraph; defendant Peggy Ann Beam is a granddaughter of Jessie Glover and daughter of Harold Glover who died in 1956 after his mother Jessie Glover; defendant Abbie Griffin is the widow of Charles E. Griffin the testator's deceased brother to whom reference is made in the paragraph, and defendant Irene Williams is the daughter of Charles E. Griffin. Perry Griffin filed his answer to the complaint. Maurine Weber and Viola Rowe each entered their written appearance in which they consented to the entry of any and all orders without notice and disclaimed any interest in the farm under the provisions of the will of the testator. A default order was entered against each of the other defendants.
The trial court construed the quoted paragraph as creating successive life estates in the widow and in the son Stanley and a vested remainder in fee in Stanley's son Thomas subject to be opened up for future children of Stanley; it found that the gift of a fee simple to the children of Stanley, subject to the prior life estates, was repugnant to the gift to the brothers and sisters or children of a deceased brother or sister and therefore the gift to the brothers and sisters or children of a deceased brother or sister was void; and it further found that since the sale of the farm might take place after the lapse of a period of time greater than a life or lives in being, plus 21 years, the provision for the sale of the farm and distribution of the proceeds among the brothers and sisters or children of a deceased brother or sister violates the rule against perpetuities and is therefore void. The court then decreed that the widow was the owner of an undivided 1/3 interest in fee in the farm by virtue of her renunciation of the will; that the grandson Thomas is the owner of an undivided 2/3 interest in fee subject to his father's life estate and subject to be opened for future children of the father, and that the defendants have no right, title or interest in the farm.
A freehold being involved, Perry Griffin appealed directly to this court. The other defendants have not joined in the appeal.
The parties agree that the paragraph in question created successive life estates in the widow and Stanley. The defendant argues, however, that the trial court erred in construing the phrase "to the children of Stanley W. Griffin, in their own right" as creating a fee-simple estate in the children subject to the prior life estates. He argues that the phrase "in their own right" is of no legal significance and could apply to the creation of a life estate as well as a fee interest and that the phrase "at their death" shows that the testator intended to create a life interest in the children of Stanley.
A considerable number of cases have come before this court where an estate is given to one person in general terms without express language, such as "for life" or "in fee simple", defining the estate in the first taker followed by subsequent language in the same or another sentence, paragraph or clause of the will giving the property to another "when", "at", or "on" the death of the first taker. This court, in applying the simple rule of interpretation that an instrument will be given effect in all its parts, has viewed the ambiguous character of the first limitation in such a manner that the second limitation can also be given effect, and held that the first limitation creates a life estate, since to hold otherwise would make all the language of the gift over meaningless. (See e.g. Hoge v. Hoge, 17 Ill.2d 209; Knisely v. Simpson, 397 Ill. 605; Scott v. Crumbaugh, 383 Ill. 144; Keiser v. Jensen, 373 Ill. 184.) There are, however, a few cases where this court has held that the gift to the first taker in words other than "in fee simple" created a fee and that subsequent language merely showed how the testator wished the first taker would dispose of the property upon the first taker's death, (see e.g. Edgar County Children's Home v. Beltranena, 402 Ill. 385; Carrico v. Barker, 408 Ill. 182); and in a very early case where a gift to the wife in "fee simple absolute" was followed by the provision "until the expiration of her life" with a gift over, this court held the wife took only a life estate. (Siegwald v. Siegwald, 37 Ill. 430.) These few cases departing from the general rule may be deemed as limited to their particular factual situations.
A gift to one person in general terms followed by a gift over at the death of the first taker is a common practice of draftsmen unskilled in the art of drafting wills. There can be little doubt that the testator in most of these situations intended the first taker to have only a life estate. It must be remembered, however, that the intent of the testator as manifested, either expressly or by necessary implication, from the language of the will is controlling.
Here we have a testator who gave the income from his 183-acre farm to his wife for her life and at her death to his son "on the same conditions". The parties agree that this was a clear expression of his intent to create a life estate in his wife followed by a life estate in his son. At the death of his son he provided that the farm should go to the children of his son "in their own right." While the gift to his grandchildren is made in general terms with a gift over "at their death", this will differs from the many where it was held that the necessary implication of the gift over showed the testator's intent to create a life estate in the first taker in that the testator here expressly created two prior life estates. The gift to his son was made "on the same conditions" as the gift to the widow, but the gift to the grandchildren was made "in their own right". The clear implication raised by the difference in language used to make the gift to the son and to the grandchildren is that he intended to create something other than a life estate in the grandchildren, namely, a fee interest.
We cannot agree with the plaintiffs, however, that the grandchildren have a fee simple absolute subject to the prior life estates. To hold that they had such an interest would render meaningless all the language of the gift over "at their death". On the other hand, we cannot agree with the defendant that the grandchildren have only a life estate. To hold that they had such an interest would be to ignore the clear implication that the testator intended to create a fee interest in them. While the testator did not use express language to manifest his intent, the plain implication is that he intended to make the gift over of a fee interest to his brother and sisters or the children of a deceased brother or sister substitutionary to the gift of a fee interest in the grandchildren.
This conclusion is further supported by the fact that a life estate was created in a person of the first generation, followed by a life estate to a person of the second generation, followed by a gift to members of the third generation and then a gift over to persons of the first generation. The testator could not reasonably expect his brothers and sisters, who range in age from 72 to 80 years, or even the children of deceased brothers and sisters, to come into possession and enjoyment of their gift if the children of Stanley lived normal life expectancies, Thomas Griffin now being only 23 years old. The testator could, however, reasonably expect the possibility of his brothers and sisters still being alive, and the stronger possibility of the children of a deceased brother or sister being alive at the time their gift became possessory if the children of Stanley would die before their gift became possessory. Furthermore, if the testator's grandchildren were held to hold only a life estate rather than a fee interest the descendants of brothers and sisters would be favored over his own descendants, which is contrary to human nature. That his brothers and sisters or their children should enjoy the proceeds of the sale of the farm and probably would be alive to enjoy them if the grandchildren were not alive to enjoy their gift, when it became possessory, is in harmony both with human nature and reasonable expectations.
As we have pointed out, this court has generally held that the necessary implication of a gift to one followed by a gift over "when", "at" or "on" the death of the first taker is that the first taker has a life estate. On the other hand, a gift over "in the event", "in case", or "if" the first taker dies does not generally show an intent to create a life estate in the first taker but shows an intent to substitute the second taker for the first taker if the first taker dies before the testator, the life tenant or some other time fixed for substitution. (Mitchell v. Snyder, 402 Ill. 279.) While the testator here used the phrase "at their death" rather than "in the event of their death", we believe, in view of the fact that he made the gift to the children of Stanley "in their own right" rather than "subject to the same conditions," as the gift to his wife and to his son Stanley, and the fact that the gift over is to persons who are two generations older than such children, that the testator intended the gift to his brothers and sisters or the children of a deceased brother or sister to be substitutionary to the gift to the children of his son Stanley. By treating the interest of the children of Stanley as a remainder, with the gift over to brothers and sisters or children of a deceased brother or sister as substitutionary to the gift to Stanley's children, all the terms of the will become consistent and meaningful.
Unless a contrary intent appears from the language of the will, we have held that in cases where there is a gift for life, followed by a gift in remainder, which is followed by a substitutionary gift over upon the "death" of one or more remaindermen, the word "death" is referable to a death prior to the supporting estate. (O'Connell v. Gaffney, 23 Ill.2d 611; Phelps v. Seeley, 3 Ill.2d 210; Harris Trust & Savings Bank v. Jackson, 412 Ill. 261.) Thus, those children of Stanley who are alive at the time their gift becomes ...