APPEAL from the Circuit Court of Jo Daviess County; the Hon.
JAMES R. HANSGEN, Judge, presiding.
MR. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
The conservator of the estate of Helen A. Evans, an incompetent person, *fn1 petitioned for the sale of the residual real estate in the estate of William H. Evans, the deceased husband of the incompetent. The defendants, who are the descendants of the parents of William Evans, the testator, filed an answer and also a cross-complaint (counterclaim) to construe the will. The trial court construed the will in favor of the incompetent, giving her a fee simple estate in the residual real estate. The defendants-counterclaimants appeal.
William H. Evans executed his will on March 27, 1920. In the will he gave the residence to his wife Helen, together with household goods and the sum of $3,000. The will further provided, as material here:
"Third: I hereby give, devise and bequeath all the rest, residue and remainder of my personal estate, wherever situated, unto my wife, Helen A. Evans and my daughter Celia Stevens, the same to be divided equally between them, share and share alike.
Fourth: I hereby give, devise and bequeath the use, rents, income and control of all the remainder of my real estate, wherever situated, unto my wife, Helen A. Evans, and my daughter, Celia Stevens, for and during the term of their natural lives, and upon the death of either of them the survivor shall have the use, rents and income of said real estate for and during the lifetime of such survivor.
Fifth: Should my daughter, Celia Stevens, at her death, leave any issue of her body surviving her, then, I give, devise and bequeath unto her said issue, in fee simple, all the rest, residue and remainder of my said real estate, the same to be divided among them, according to the law of descents of the State of Illinois, but should my daughter, Celia Stevens, at the time of her death, leave no issue of her body surviving her, then all the remainder of my said real estate shall descend in fee simple, to my own heirs at law living at the time of the death of my said daughter. All gifts under this Fifth Clause of my said Will shall be subject to the life estate given in the Fourth Clause of said Will."
William H. Evans died on April 13, 1937, leaving his wife Helen and his daughter Celia as his only heirs. Celia died on February 1, 1966, leaving no child, no descendant of a child, and leaving her mother, Helen, as her only heir at law.
The trial court concluded that there was no compelling reason to indicate that William H. Evans intended to exclude his widow Helen from the class of persons who would inherit the residuary estate as heirs at law living at the time of the death of his daughter Celia. The court further concluded that such heirs should be determined as of February 1, 1966, the date of the death of Celia, rather than at the date of the testator's death. *fn2
The defendants contend that the language of the will, and in particular that found in Clauses Four and Five, shows that the testator did not intend to have his surviving spouse included as a member of the class of contingent remaindermen upon the death of his daughter without issue since he designated "my own heirs at law living at the time of the death" of his daughter as the class to take the residual estate. They further contend that in construing the will to ascertain the testator's intent we should be governed by the Statute of Descent in effect at the date of the testator's death.
• 1, 2 In construing a will the testator's intention is primary and must be arrived at, if possible, from the words of the will itself. (See, e.g., Bradshaw v. Lewis (1973), 54 Ill.2d 304, 308; Weber v. Hawkins (1964), 30 Ill.2d 278, 283-84.) A gift of a future interest as a matter of testamentary construction is construed as a gift to such persons as are his heirs at the time of the testator's death unless a different intention is plainly manifested in the will. (See Hull v. Adams (1948), 399 Ill. 347, 351; Le Sourd v. Leinweber (1952), 412 Ill. 100, 105; People v. Camp (1919), 286 Ill. 511, 517.) A testator may, however, by his will expressly or by necessary implication fix the time when the members of a class of remaindermen are to be ascertained as a period other than the time of testator's death. Bergendahl v. Stiers (1956), 8 Ill.2d 257, 261-62; Bolon v. Dains (1964), 54 Ill. App.2d 64, 70. See also Fountain v. Fountain (1940), 308 Ill. App. 330, 336.
In the present case, Evans clearly stated in his will that in the event his daughter Celia should die without issue surviving her, his residuary real estate was to "descend in fee simple, to my own heirs at law living at the time of the death of my said daughter." (Emphasis added.) His intention to have the membership of the class of "my own heirs at law" determined at some point subsequent to his death is plainly manifested. Therefore the membership of the class of remaindermen who take as a result of Celia's death without surviving issue must be determined as of the date of her death, February 1, 1966. *fn3
• 3, 4 Where a life estate is devised to one of several heirs at law of the testator with the remainder to the testator's heirs at law the life tenant is included within the term "heirs at law" and thus included in the devise of the remainder in the absence of anything to indicate an intention to exclude the life tenant. (Himmel v. Himmel (1920), 294 Ill. 557, 561.) If the will is construed to find that the testator's intent was to have his heirs ascertained as of the date of his death, it is not inconsistent for the testator to give a life tenant an interest in fee in the remainder (Gridley v. Gridley (1948), 399 Ill. 215, 218); nor does the fact that the life tenant is the testator's sole heir in such a case prevent his taking the remainder in fee upon or after his death under a gift to the testator's heirs contingent upon the death of the life tenant without surviving issue. Hull v. Adams (1948), 399 Ill. 347, 351-52; Restatement of Property § 308, at 1706 (1940).
• 5 Where the courts find from the will that a testator did intend to exclude a life tenant from the class of his heirs to take the remainder interest as the result of a contingency, such as death of the life tenant without surviving issue, it is generally held that the testator's heirs are to be determined at the death of the life tenant so as to preclude the life tenant from taking the remainder interest. Whitmore v. Starks (1959), 17 Ill.2d 202, 207.
We have determined that the intent of the testator was to have his heirs at law ascertained at the time of the death of his daughter Celia and that the law of descent in effect at that point is to control. Since the testator's wife was still living at that time it would be consistent to hold that she was technically the "surviving heir at law" and should take the remainder interest. Despite this consideration, we find it necessary to conclude from the language of the will and the projected testamentary ...