APPEAL from the Circuit Court of Winnebago County; the Hon.
ALBERT S. O'SULLIVAN, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
This case involves the construction of a will executed in 1882. The testatrix, Frances A. Horsman, died in 1889, leaving as her heirs at law a daughter, Mary Alice Underwood, and a granddaughter, Belle Ogden. When the will was executed and when the testatrix died Mary Alice Underwood was married and the mother of a son, John C. Underwood. Belle C. Ogden, the daughter of a deceased daughter of Frances A. Horsman, was twenty-three years of age and unmarried when the testatrix died.
The controversy involves a determination of who will take as "my heirs at law" under the residuary clause of the will, which is as follows: "One half thereof to the said Mary A. Underwood as her absolute estate; and The other one half to William T. Robertson and Rufus C. Bailey of said city of Rockford and to their successors in trust, upon the trusts following, namely; with and out of the use, rents, and profits of said trust estate, if sufficient therefor, and if not, then out of the principal, to provide for the careful support, nurture and education of my granddaughter Belle C. Ogden during her minority and afterwards to pay to her or for her so much as may be necessary for her proper support and living, until such time, if ever, as she shall become married and have a living child or children and then to pay and make over to her all that shall remain of said trust estate; but in case of the death of the said Belle C. Ogden before the said trust estate shall have been made over to her as aforesaid and without a living child or children, then and in that event, to pay and make over to my heirs at law all that shall remain of said trust estate; but in case of her death before said trust estate shall have been made over to her leaving a child or children her surviving then said trust estate shall go to such child or children as her heirs at law."
Mary Alice Underwood died testate in 1924. She was survived by John C. Underwood, her only child, who died in 1949 without surviving descendants. Under the will of Mary A. Underwood her interest in the property here involved passed to a charitable trust known as "The Horsman Memorial Fund."
Belle Ogden married Joseph McKee in 1891. The parties, however refer to her as Belle Ogden, and we shall so refer to her in this opinion. She died testate in 1959 without ever having had a child born to her. Under her will, any interest she might have in a distribution of the property here involved passed to the Western Province, Community of St. Mary, a Wisconsin corporation.
Upon the death of Belle Ogden, the successor trustees of the estate of Frances A. Horsman brought this action in the circuit court of Winnebago County for a construction of the distributive provisions of the testamentary trust established by the will of Frances Horsman. The trial court entered a decree finding that the heirs of Frances Horsman were to be determined at her death; that at that time, Mary Alice Underwood and Belle Ogden were her sole heirs; that Belle Ogden "as one of the heirs at law of said decedent, was not entitled to take any fee of the reversion or the remainder interest in said trust;" and that the entire trust fund should, under the will of Mary Alice Underwood, be paid over to the Horsman Memorial Fund. Western Province, claiming under the will of Belle Ogden, has appealed from that decree. A freehold is involved, and this court has direct appellate jurisdiction.
Thus the question for determination is the meaning of the phrase "my heirs at law" in the following clause of the will: "but in case of the death of the said Belle C. Ogden * * * without a living child or children, then and in that event, to pay and make over to my heirs at law all that shall remain of said trust estate." It is the position of the appellant that since there is no language in the will which limits the meaning of the word heirs, that word must be given its ordinary meaning, which, in this case, includes Mary A. Underwood and Belle Ogden. Under this construction, one half of the trust estate would pass under the will of Mary A. Underwood, and one half under the will of Belle Ogden. The appellees, who claim the entire trust estate under the will of Mary A. Underwood, assert that the phrase "to my heirs" means "to Mary A. Underwood", or "to my heirs, to the exclusion of Belle Ogden." It is their position that the intention of the testatrix that the phrase should be so construed appears (1) from the family circumstances that preceded, coincided with and followed the execution of the will and the death of the testatrix, and (2) from other provisions of the will which show that intent.
Most of the cases that have involved similar problems have turned upon the time when the heirs of the testator were to be determined: at the death of the testator, or at the termination of the intervening estate. (See, e.g., Barnhart v. Barnhart, 415 Ill. 303; Le Sourd v. Leinweber, 412 Ill. 100; Himmel v. Himmel, 294 Ill. 557.) In this case, however, the trial court found that the phrase "to my heirs" meant to those persons who were the heirs at law of the testatrix at the time of her death. Both the appellant and the appellees have acquiesced in the determination, and it is not challenged in this court.
As a general proposition, a beneficiary under a will is not barred from taking, as an heir, property as to which the testamentary disposition has failed, even though the gift that failed was to him. As was stated in Kellett v. Shepard, 139 Ill. 443, 444: "Gifts to a class following a bequest of the same property for life, vest immediately upon the death of the testator. Nor does it make any difference that the person to whom such previous life interest was given is also a member of the class to take on his death." The most dramatic cases occur when the life tenant, upon whose death without issue the remainder interest becomes effective, is also the sole heir. Himmel v. Himmel, 294 Ill. 557, was such a case, and this court there said: "It is the established law of this State that where a life estate is devised to one of several heirs-at-law of the testator with remainder to his heirs-at-law, the life tenant is included within the term `heirs-at-law' and is included in the devise of the remainder." (294 Ill. at 561.) The appellees do not dispute this general proposition, and we turn therefore to the circumstances that are said to call for a different result in this case.
The appellees first emphasize that the Horsman family was one of substantial means and prominence in the city of Rockford, and they point to the provisions of the wills of Charles I. Horsman and Mary A. Underwood as indicating a strong concern for maintaining the property in the Horsman line. Charles I. Horsman was the husband of Frances A. Horsman. By his will he left all of his property to her, if she survived him. If she did not, his will provided the same scheme of distribution that was later included in his wife's will, except that at the critical point here in issue his will used the phrase "my next of kin" instead of the phrase "my heirs at law." The will of Mary A. Underwood left her property in trust for her son during his life, and upon his death to his children in fee, but if he should die without children then to a charitable trust to be known as "The Horsman Memorial Fund."
In these circumstances we see no unusual features that are of value in construing the will of Frances A. Horsman. The wealth and social prominence of the Horsman family is irrelevant. The asserted concern of Charles I. Horsman that the Horsman property should "follow in the Horsman line" would not be unusual if it existed. That he felt any such concern is not readily apparent, however, for at a time when he had a living child and two living grandchildren he left all of his property to his wife if she survived him, thus enabling her to dispose of it to the exclusion of his children and grandchildren. The will of Mary A. Underwood was executed in 1923, and its provisions cast no light upon the intentions of her mother, Frances A. Horsman, who died in 1889.
With respect to the provisions of the will itself, the appellees first emphasize that if Belle Ogden married and had a living child or children the corpus of the trust was to be paid to her, but if she died without a living child or children the corpus was to be paid over to "my heirs at law," while in case of Belle Ogden's death before the trust estate was made over to her, "leaving a child or children her surviving then said trust estate shall go to such child or children as her heirs at law."
Based upon these provisions of the will the appellees argue: "Doesn't Frances Horsman tell us by this last clause whom she intended to designate by the phrase `my heirs at law'? She says that if Belle died without a living child, the corpus should then go to `my heirs at law'; in the very next clause of the same sentence she says if Belle dies before the trust can be made over to her, then the corpus should go `to such child or children as her heirs at law'.
"If Frances Horsman regarded the child or children of Belle as Belle's heirs at law, then when Frances Horsman used the phrase `my heirs at law' in the same sentence, it seems inescapable that she was referring to ...