{ "id": 3231178, "name": "Otto S. Lancaster et al. v. Robert H. Lancaster et al.", "name_abbreviation": "Lancaster v. Lancaster", "decision_date": "1900-10-19", "docket_number": "", "first_page": "540", "last_page": "546", "citations": [ { "type": "official", "cite": "187 Ill. 540" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "161 Ill. 73", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "6 N. J. L. 111", "category": "reporters:state", "reporter": "N.J.L.", "opinion_index": -1 }, { "cite": "96 Mass. 204", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 2138256 ], "weight": 3, "pin_cites": [ { "page": "348" }, { "page": "267" } ], "opinion_index": -1, "case_paths": [ "/mass/96/0204-01" ] }, { "cite": "113 Ind. 23", "category": "reporters:state", "reporter": "Ind.", "opinion_index": -1 }, { "cite": "112 Ill. 242", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2862299 ], "opinion_index": -1, "case_paths": [ "/ill/112/0242-01" ] }, { "cite": "8 Metc. 450", "category": "reporters:state", "reporter": "Metc.", "opinion_index": -1 }, { "cite": "11 Pet. 54", "category": "reporters:scotus_early", "reporter": "Pet.", "opinion_index": -1 }, { "cite": "87 Ill. 89", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5342275 ], "opinion_index": -1, "case_paths": [ "/ill/87/0089-01" ] }, { "cite": "20 N. E. Rep. 528", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": -1 }, { "cite": "8 N. J. L. 97", "category": "reporters:state", "reporter": "N.J.L.", "opinion_index": -1 }, { "cite": "145 Ill. 625", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5485299 ], "opinion_index": -1, "case_paths": [ "/ill/145/0625-01" ] }, { "cite": "139 Ill. 433", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3006538 ], "opinion_index": -1, "case_paths": [ "/ill/139/0433-01" ] }, { "cite": "7 Cush. 163", "category": "reporters:state", "reporter": "Cush.", "opinion_index": -1 }, { "cite": "127 Ill. 341", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5410921 ], "opinion_index": -1, "case_paths": [ "/ill/127/0341-01" ] }, { "cite": "127 Ill. 42", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5410665 ], "opinion_index": -1, "case_paths": [ "/ill/127/0042-01" ] }, { "cite": "4 Pick. 198", "category": "reporters:state", "reporter": "Pick.", "case_ids": [ 2031164 ], "opinion_index": -1, "case_paths": [ "/mass/21/0208-01" ] }, { "cite": "109 Ind. 476", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1314066 ], "opinion_index": -1, "case_paths": [ "/ind/109/0476-01" ] }, { "cite": "8 N. E. Rep. 917", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": -1 }, { "cite": "105 Pa. St. 200", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 454259 ], "opinion_index": -1, "case_paths": [ "/pa/105/0200-01" ] }, { "cite": "19 L. R. A. 472", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": -1 }, { "cite": "18 Gratt. 574", "category": "reporters:state", "reporter": "Gratt.", "case_ids": [ 6733442 ], "opinion_index": -1, "case_paths": [ "/va/59/0717-01" ] }, { "cite": "9 N. J. Eq. 130", "category": "reporters:state", "reporter": "N.J. Eq.", "case_ids": [ 797902 ], "opinion_index": -1, "case_paths": [ "/nj-eq/9/0130-01" ] }, { "cite": "1 Sandf. Ch. 357", "category": "reporters:state", "reporter": "Sand. Ch.", "case_ids": [ 2163566 ], "opinion_index": -1, "case_paths": [ "/sand-ch/1/0357-01" ] }, { "cite": "62 Ill. 417", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2608357 ], "opinion_index": -1, "case_paths": [ "/ill/62/0417-01" ] }, { "cite": "44 Ill. 363", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5222215 ], "opinion_index": -1, "case_paths": [ "/ill/44/0363-01" ] }, { "cite": "118 Ill. 403", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5382543 ], "opinion_index": -1, "case_paths": [ "/ill/118/0403-01" ] }, { "cite": "98 Ky. 349", "category": "reporters:state", "reporter": "Ky.", "case_ids": [ 8591834 ], "opinion_index": -1, "case_paths": [ "/ky/98/0349-01" ] }, { "cite": "20 Ga. 512", "category": "reporters:state", "reporter": "Ga.", "opinion_index": -1 }, { "cite": "132 Ill. 287", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5419194 ], "weight": 3, "pin_cites": [ { "page": "341" } ], "opinion_index": -1, "case_paths": [ "/ill/132/0287-01" ] }, { "cite": "118 Ill. 403", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5382543 ], "weight": 2, "pin_cites": [ { "page": "433" } ], "opinion_index": 0, "case_paths": [ "/ill/118/0403-01" ] } ], "analysis": { "cardinality": 726, "char_count": 13997, "ocr_confidence": 0.598, "pagerank": { "raw": 9.66954086672857e-08, "percentile": 0.5288736910916428 }, "sha256": "ee39b3430cd6baeb3587538d48a853f0a4199d8bdd9fa4726db6513de08baf4f", "simhash": "1:530d20566fb316d3", "word_count": 2492 }, "last_updated": "2023-07-14T18:39:43.135598+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Otto S. Lancaster et al. v. Robert H. Lancaster et al." ], "opinions": [ { "text": "Mr. Justice Wilkin\ndelivered the opinion of the court:\nThis is a proceeding in chancery by Robert H. Lancaster, one of the devisees under the will of Nimrod Lancaster, in the superior court of Cook county, to partition certain lots and tracts of land, and adjust encumbrances thereon, described in the bill, as a part of the estate of Nimrod Lancaster, deceased, late of Chicago, who died testate on June 14, 1895,\nThe will, which is the basis of the claim of the respective parties to the lands in controversy, was executed in July, 1890, and is as follows:\n\u201cChicago, July\u2014,1890.\n\u201cKnow all persons by these presents, That I, Nimrod Lancaster, of the city of Chicago, do hereby make my last will and testament, and that I am firm in body and sound in mind.\n\u201cItem first\u2014-I will that all my estate, both real and personal, shall be divided into four equal parts.\n\u201cItem second\u2014I give and bequeath to the legal and direct descendants\u2014the heirs of their bodies begotten and their heirs \u2014of my eldest brother, William P. Lancaster, and his wife, Mary Lancaster, (now both deceased,) the one-fourth part of my estate so divided as above mentioned.\n\u201cItem third\u2014I give and bequeath to the legal and direct descendants\u2014the heirs of their bodies begotten and their heirs\u2014 of my brother Robert P. Lancaster, and Amanda Lancaster, his wife, (now both deceased,) the one-fourth part of my estate so divided as above mentioned.\n\u201cItem fourth\u2014I give and bequeath to the heirs of their bodies begotten, and their heirs, of my sister, Sallie Wallace, and her husband, Thomas Wallace, (now both deceased,) one-fourth part of my estate so divided as above mentioned.\n\u201cItem fifth\u2014I give and bequeath to my sister-in-law, Mrs. Edmonia P. Guard, (now living at Cleves, Ohio,) to herself during her lifetime and to heirs of her body begotten, after her death, one-fourth part of my estate so divided as above mentioned.\n\u201cItem sixth\u2014It is my will, and I so bequeath, that my friend, William A. Barton, and his wife, Harriet Barton, shall remain in and occupy, free of rent, the house (2941 Wabash ave.) they now have, for ten years after my death.\nNimrod Lancaster.\u201d\n\u201cItem seventh\u2014I do hereby constitute and appoint Mrs. Mary Phipps, my niece, and her husband, William C. Phipps, my executors, to execute this my last will and testament.\n\u201cNovember 23, 1891.\u201d\nThe petitioner is one of the \u201cheirs of the bodies\u201d of Robert P. and Amanda Lancaster, designated in item 3.\nUpon the hearing below there was no controversy as to the description of property sought to be partitioned, the encumbrances or the right to partition, but the conte$t arose as to the proper construction to be placed upon the second, third, fourth and fifth items of the will, and several interpretations were insisted upon in the court below by the respective parties, but one of which, as stated below, is urged here. The decree there rendered was in conformity with the prayer of petitioner as to the interpretation and construction of the will, finding, in effect, that under each clause the devisees \"who took the estate were the persons who, at the time of the testator\u2019s death, were the heirs, generally, of the ancestors named in the several items. From that decree this appeal is prosecuted, and the only construction here insisted upon by the appellants, different from that placed upon it by the chancellor, is* that under the language, \u201cto the legal and direct descendants,\u201d all who have descended directly from the ancestors named in items 2, 3 and 4 take as devisees, and that the several gifts are not affected by the subsequent words, \u201cthe heirs of their bodies begotten and their heirs.\u201d\nAlthough the rights of appellants arise under item 3 of the will, in construing the several gifts it will be sufficient for the present to give attention, first, to item 2, the language of .each, except the last, being in substance the same. What is the proper construction to be given to the language of this item, \u201cI give and bequeath to the legal and direct descendants\u2014the heirs of their bodies begotten and their heirs\u2014of my eldest brother, William P. Lancaster, and his wife, Mary Lancaster, (now both deceased,) the one-fourth part of my estate so divided as above mentioned?\u201d The clause \u201cto the legal and direct descendants,\u201d would, if standing alone, undoubtedly be interpreted as designating a large class; but it is clearly qualified by the language which follows: \u201cThe heirs of their bodies begbtten and their heirs.\u201d This latter clause is a parenthetical expression, and is to be understood as explaining or qualifying the clause immediately preceding. Interpreted as such parenthetical clauses are generally understood, the sentence would read as though it had been written, \u201cI give and bequeath to the legal and direct descendants,\u2014that is to say, the heirs of their bodies and their heirs,\u2014of my eldest brother, William P. Lancaster, and his wife,\u201d etc. This construction is made without adding to the language employed, but by simply setting out in words what is actually expressed by the grammatical construction and punctuation of the sentence. Nor does it result in rejecting the first clause, as claimed by appellants, but it gives effect to both clauses. \u201cThe heirs of their bodies\u201d are, in fact, \u201clegal and direct descendants,\u201d but it cannot be said that all the \u201clegal and direct descendants\u201d are \u201cheirs of their bodies.\u201d The interpretation insisted upon by appellants would necessarily reject the second clause, and violate the well known general rule of construction which requires the giving effect to every part of a written instrument in its interpretation, if it can be done.\nThe next consideration is, who, under the foregoing construction, shall take under item 2 of the will? Manifestly, only those who, singly or as a class, come within the description of \u201cheirs of the bodies\u201d of the ancestors named. Being a simple devise to a class, and the will not expressly or by necessary implication fixing a time when the devisees are to be ascertained or when the division is to be made, the law will fix it at the testator\u2019s death, that being the time when the will first speaks. (McCartney v. Osburn, 118 Ill. 403. See, also, Kellett v. Shepard, 139 id. 433.) From the evidence in the record we find the only person living at the testator\u2019s death who comes within the description \u201cheirs of the bodies\u201d of William P. and Mary Lancaster, to be the defendant John E. Lancaster, the son. The decree below, however, divides the part of the estate mentioned in that item into two parts, giving one to John E. Lancaster and the other to the heirs, generally, of his deceased sister, Mrs. Jane Grubbs, they being the only children of the ancestors mentioned: and it is contended by appellee that the estate should be divided, according to the Statute of Descent, among the heirs, generally,-of the ancestors mentioned in the several items. The position cannot be sustained. Jane Grubbs was living at the time of the making of the will but not at the date of the testator\u2019s death, and was therefore not in being at the time the estate vested. Had the devise been to Jane Grubbs and John E. Lancaster, specifically, as \u201cthe heirs of the bodies\u201d of the ancestors, then the share of Mrs. Grubbs, she being dead at the time of the vesting of the estate, would have lapsed, and her heirs generally, even in that case, could not have taken. The devise here being to a class, the death of one of them before the testator will not cause a lapse of any part of the gift, \u201cbut those of the described class who survive the testator will take the whole.\u201d (Am. & Eng. Ency. of Law, 13,\u20141st ed.\u201433, and cases cited.) John E. Lancaster is the sole person coming within the designated class, and the children and grandchildren of Mrs. Grubbs can by no proper construction of the will be included therein.\nIt is unnecessary to enter into a discussion of items 3 and 4 of the will, as the language of each is the same as in item 2, and the same rules of construction and interpretation necessarily apply. Item 5 is unlike the others, but it is a direct gift for life to Mrs. Edmonia P. Guard, with remainder to the class named in that devise. (See Hurd\u2019s Stat. 1897, sec. 6, p. 391.) The life estate being at an end, Mrs. Guard having died, the \u201cheirs of her body\u201d living at the death of the testator take that part of the estate, and take it not as her heirs generally, but by virtue of the original gift to them as a class, to be ascertained when the will should take effect.\nFor the error indicated the decree below will be reversed and the cause remanded, with direction to the superior court to make partition of the lands in conformity with the views herein expressed.\nReversed and remanded.", "type": "majority", "author": "Mr. Justice Wilkin" } ], "attorneys": [ "Follett W. Bull, and Louis Grollman, for the guardian ad litem:", "Hamline, Scott & Lord, (Frank E. Lord, and Gwynn Garnett, of counsel,) for appellee Lancaster:", "William Prescott, for appellee William Wallace.", "Smith, Helmer, Moulton & Price, for other appellees." ], "corrections": "", "head_matter": "Otto S. Lancaster et al. v. Robert H. Lancaster et al.\nOpinion filed October 19, 1900.\n1. Wills\u2014when devise to a class mil take effect. In case of a devise to a class, if the will does not expressly or impliedly fix a time when the devisees are to be ascertained or distribution made, the law fixes such time at the testator\u2019s death.\n2. Same\u2014devise construed. A devise to \u201cthe legal and direct descendants\u2014the heirs of their bodies begotten and their heirs\u2014of my eldest brother * * * and his wife,\u201d limits the class of devisees to the \u201cheirs of the bodies\u201d of the ancestors named, and, in the absence of any contrary provision, only those of that class who are living at the testator\u2019s death will take.\n3. Same\u2014devise of life estate with remainder construed. In case o\u00ed a devise to the testator\u2019s sister-in-law, \u201cto herself during her lifetime and to heirs of her body begotten, after her death,\u201d upon the death of such sister-in-law the \u201cheirs of her body\u201d living at the testator\u2019s death will take, not as her heirs generally, but by virtue of the original gift to them as a class, to be ascertained when the will takes effect.\nAppeal from the Superior Court of Cook county; the Hon. A. H. Chetlain, Judge, presiding.\nFollett W. Bull, and Louis Grollman, for the guardian ad litem:\nThe term \u201cdescendants\u201d includes all who descend from the body of another, however remotely. 9 Am. & Eng. Ency. of Law, 399; Bates v. Gillett, 132 Ill. 287; 1 Rapalje & Lawrence\u2019s Law Dic. 379; Bouviers Law Dic.; Bryan v. Walton, 20 Ga. 512; Tichenor v. Brewer, 98 Ky. 349.\nOnly the descendants living- at the death of the testator would take under the will. 29 Am. & Eng. Ency. of Law, 410; Jarman on Wills, (6th Am. ed.) 167; McCartney v. Osborn, 118 Ill. 403; Bates v. Gillett, 132 id. 287; Ridgway v. Underwood, 67 id. 419.\nUnder a devise to descendants the distribution should be per capita. Crossley v. Clare, 1 Ambl. Ch. 306; 29 Am. & Eng. Ency. of Law, 420, 427; Pitney v. Brown, 44 Ill. 363; 2 Jarman on Wills, (6th Am. ed.) 105; Richards v. Miller, 62 Ill. 417; Butler v. Stratton, 3 Bro. Ch. 304; Bumer v. Storm, 1 Sandf. Ch. 357; Stokes v. Tilly, 9 N. J. Eq. 130; Hoton v. Griffith, 18 Gratt. 574.\nThe terms \u201clegal and direct descendants\u201d and \u201cheirs of their bodies begotten and their heirs\u201d should be construed as passing the gift to the individuals composing the class \u201cdescendants.\u201d We are not at liberty to disregard or reject as meaningless any word of the testator. Bates v. Gillett, 132 Ill. 287; Jenks v. Jackson, 127 id. 341.\nThe terms \u201cissue,\u201d \u201cheirs of the body\u201d and \u201clineal descendants\u201d have been held to be synonymous. Brandon v. Cannon, 1 Grant\u2019s Cas. 60; Pearce v. Rickards, 19 L. R. A. 472; Wistar v. Scott, 105 Pa. St. 200.\nThe words \u201cheirs\u201d and \u201cheirs of the body\u201d are sometimes construed as words of purchase. Willett v. Ford, 8 N. E. Rep. 917; Allan v. Craft, 109 Ind. 476; Bowers v. Porter, 4 Pick. 198; Goodright v. White, 2 W. Bl. 1010; Carpenter v VanOlinder, 127 Ill. 42; Butler v. Huestis, 68 id. 594; Belslay v. Engel, 107 id. 182; Summers v. Smith, 127 id. 645; Strain v. Sweeny, 163 id. 603; Griswold v. Hicks, 132 id. 494.\nWords used in one part of a will must be understood in the same sense when used elsewhere. Jenks v. Jackson, 127 Ill. 341; Duryea v. Duryea, 85 id. 41.\n, Title by descent is superior to title by devise or purchase. Devise is void if same estate passes as by descent. Ellis v. Page, 7 Cush. 163; Kellett v. Shepard, 139 Ill. 433; 4 Kent\u2019s Com. 506, 507.\nCourts favor a construction which gives effect to every part of a will and which does not defeat the will. 29 Am. & Eng. Ency. of Law, 350; Crerar v. Williams, 145 Ill. 625; Den v. Crawford, 8 N. J. L. 97.\nHamline, Scott & Lord, (Frank E. Lord, and Gwynn Garnett, of counsel,) for appellee Lancaster:\nIn construing a devise, regard may be had to the probability or improbability of the construction claimed. Lang v. Pugh, 1 Y. & C. 718; Henry v. Thomas, 20 N. E. Rep. 528; 1 Jarman on Wills, 453.\nPunctuation in a will may be supplied or ignored when necessary for its true interpretation. Osborn v. Farwell, 87 Ill. 89; 11 Am. & Eng. Ency. of Law, 521; Ewing v. Burnett, 11 Pet. 54.\nThe expression \u201cissue of the body\u201d is not synonymous with \u201cheirs of the body.\u201d The former expression embraces all descendants, and is applicable to them as well in the lifetime of the parent as after his death, while \u201cheirs of the body\u201d may embrace only a portion of the descendants, and does not embrace even them as long as the parent is living. 1 Jones on Real Prop. sec. 614.\nWhen the devise is to heirs, whether to one\u2019s own heirs or the heirs of another, the presumption is that such heirs take according to the laws of descent,\u2014i. e., per stirpes. Daggett v. Slack, 8 Metc. 450; Tillinghast v. Cook, 9 id. 143; Kelley v. Vigas, 112 Ill. 242; Thomas v. Miller, 161 id. 72; Henry v. Thomas, 113 Ind. 23.\nThis presumption will prevail even over the words \u201cequally divided.\u201d Balcolm v. Haynes, 96 Mass. 204; Bassett v. Granger, 100 id. 348; Hall v. Hall, 140 id. 267; Roome v. Counter, 6 N. J. L. 111; Thomas v. Miller, 161 Ill. 73; Kelley v. Vigas, 112 id. 242.\nWilliam Prescott, for appellee William Wallace.\nSmith, Helmer, Moulton & Price, for other appellees." }, "file_name": "0540-01", "first_page_order": 540, "last_page_order": 546 }