{ "id": 8499867, "name": "Arta W. Stisser et al. Appellants, vs. Charles H. Stisser et al. Appellees", "name_abbreviation": "Stisser v. Stisser", "decision_date": "1908-06-18", "docket_number": "", "first_page": "207", "last_page": "213", "citations": [ { "type": "official", "cite": "235 Ill. 207" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "230 Ill. 258", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5632609 ], "opinion_index": 0, "case_paths": [ "/ill/230/0258-01" ] }, { "cite": "225 Ill. 342", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3331081 ], "opinion_index": 0, "case_paths": [ "/ill/225/0342-01" ] }, { "cite": "139 Ill. 433", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3006538 ], "opinion_index": 0, "case_paths": [ "/ill/139/0433-01" ] }, { "cite": "222 Ill. 413", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3340380 ], "opinion_index": 0, "case_paths": [ "/ill/222/0413-01" ] }, { "cite": "206 Ill. 57", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5598296 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/206/0057-01" ] }, { "cite": "132 Ill. 494", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5420749 ], "opinion_index": 0, "case_paths": [ "/ill/132/0494-01" ] }, { "cite": "193 Ill. 372", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5578279 ], "opinion_index": 0, "case_paths": [ "/ill/193/0372-01" ] }, { "cite": "209 Ill. 222", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3300536 ], "weight": 2, "pin_cites": [ { "page": "318" } ], "opinion_index": 0, "case_paths": [ "/ill/209/0222-01" ] }, { "cite": "163 Ill. 603", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5508190 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/163/0603-01" ] } ], "analysis": { "cardinality": 605, "char_count": 14269, "ocr_confidence": 0.677, "pagerank": { "raw": 1.2985302854678572e-07, "percentile": 0.6215858530748318 }, "sha256": "73f81213689edf87763ad6b01957dc5887bd47389f6ad1a2c2fa4b7000e4083b", "simhash": "1:da10ecefa56e96b6", "word_count": 2556 }, "last_updated": "2023-07-14T20:15:07.814058+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Arta W. Stisser et al. Appellants, vs. Charles H. Stisser et al. Appellees." ], "opinions": [ { "text": "Mr. Justice Carter\ndelivered the opinion of the court:\nNo controversy exists over the facts in this case. All parties seek the construction of the will. The only point of dispute is whether the language of the will brings it within the rule in Shelley\u2019s case. The question turns on the construction that should be given to clause 7. The word \u201csection,\u201d in the seventh clause of this will, is used with the same meaning as we use the word \u201cclause\u201d- in this opinion. If the word \u201cheirs\u201d is used in this clause in its strict technical meaning, then it must be held to be a word of limitation and not of purchase, and the chancellor erred in dismissing the bill.\n\u201cOne of the established rules for the construction of a will is that the court will look at the circumstances under which the devisor makes his will, \u2014 as, the state of his property, of his family, and the like.\u201d (Strain v. Sweeny, 163 Ill. 603; Johnson v. Askey, 190 id. 58; Felkel v. O\u2019Brien, 231 id. 329.) By the second clause of the will the deceased left the remainder in fee in certain land, after certain life estates, to the four children of his step-son. By the third clause he left the remainder in fee in certain land to the children of his oldest son. By the fourth, fifth and sixth clauses of the will he gave a life interest in .certain lands, respectively, to his two sons, Alta W. and Charles L., and to his daughter, Nettie D. Had there been no further provision as to the property described in said clauses 4, 5 and 6, after the death of either of said three children mentioned in those three clauses the property in which that child had a life interest would have gone, by reversion, to the heirs of the testator; but clause 7 of said will attempts to dispose of this reversion and it thereby became a remainder. We think under said clause the remainder, after the death of either of said life tenants, in the property described in said clauses 4, 5 and 6 was devised, by necessary implication, to the issue of the respective life tenants, if they had issue. (Kales on Future Interests, p. 299, note 2; Orr v. Yates, 209 Ill. 222; Young v. Harkleroad, 166 id. 318; Pinkney v. Weaver, 216 id. 185; 2 Jarman on Wills,\u2014Randolph & Talcott ed.\u2014chap. 17, *563 ; Forth v. Chapman, 1 P. Wms. 663.) If it is apparent from a reading of the will that the testator used the words \u201cheirs,\u201d \u201cissue\u201d and \u201cchildren\u201d interchangeably or synonymously, the court is warranted in construing them in like manner, so as to carry out the testator\u2019s intention. (Gannon v. Peterson, 193 Ill. 372; Butler v. Huestis, 68 id. 594; Leiter v. Sheppard, 85 id. 242.) The words- \u201cheirs\u201d and \u201cissue\u201d are to be given their technical meaning, unless, reading the entire will together, it is plain it was not the intention of the testator to so use them. (Griswold v. Hicks, 132 Ill. 494; Vangieson v. Henderson, 150 id. 119.) The intention must be sought from the language of the will. (Deemer v. Kessinger, 206 Ill. 57.) The force or meaning of words must arise from the connection in which they are used. Dick v. Ricker, 222 Ill. 413.\nObviously, from the facts set forth in the bill, it is a fair construction of this will that the testator desired the bulk of his property, after the death of his wife, to go to the children of his children and the children of his step-son. Apparently, at the time he drew the will, and at his death, his step-son and his oldest son, Edgar, had children and his two other sons and daughter had none. If the last three afterwards had children, he wished them to inherit the remainder after the life estates of their respective parents, the same as the children of his oldest son and his step-son. If his three youngest children had no issue, did he intend the remainders after the respective life estates of these three children to descend to the \u201cchildren of his children\u201d or to the \u201cheirs of his heirs?\u201d \u201cChildren\u201d is used twice, \u201cissue\u201d once and \u201cheirs\u201d three times in said seventh clause. \u201cChildren,\u201d where first used in said clause, undoubtedly has the meaning usually given to it in its ordinary, common usage. \u201cIssue,\u201d as used in this clause, we think means the same as \u201cchildren,\u201d for it is plain that the testator intended to provide in the will for the children of his three youngest children along the same lines as he did the children of his oldest son and his step-son. We think, also, that it is clear that the word \u201cchildren,\u201d when used the second time in said clause, was used in its ordinary meaning.\nAppellants contend, as we understand it, that the last sentence in said clause, namely, \u201cit being the will of the testator that the title to the properties under sections No. 4, 5 and 6 herein shall rest and abide in the hands of the legal heirs of the lawful heirs of the testator,\u201d is really a devise as to the remainder over, and must control the meaning to be given to the part of. the said clause immediately before, namely, \u201cthen and in that case the properties herein willed to them, or either of them, or any part thereof, shall revert equally to the legal heirs of the other children.\u201d We can not agree with this contention. We think the words last quoted constituted the devise as to the remainder over, and the last part of said clause quoted above merely attempts, by way of recital, to explain the meaning of the devise theretofore set out. The words \u201clegal\u201d and \u201clawful\u201d do not modify or change the legal effect of the word \u201cheirs.\u201d (Deemer v. Kessinger, supra.) \u201cHeirs,\u201d as used the last time in the said clause, evidently has the same meaning as \u201cchildren\u201d in the devise itself, and as we have stated, \u201cchildren\u201d was used there in its ordinary, common meaning. Did the testator, in using the word \u201cother\u201d before \u201cchildren\u201d in this devise, refer to the three children named in said clause, or did he include his oldest son, Edgar, as one of the \u201cother children?\u201d Considering the wording of this devise alone, there might be some doubt on this question, and the writer of this will might have had that obscurity in mind when he drafted the last explanatory sentence. It is evident from the reading of the entire clause that the testator intended to include all of his remaining children but not his step-son. Manifestly, taking the entire will together, he wanted the remainders in question to go to the children of his children. His children and grandchildren were the natural objects of his bounty. If he had intended the word \u201cheirs\u201d to be used in the technical sense, it hardly seems possible that he would have used \u201cchildren\u201d and \u201cissue\u201d in this clause in the manner he did, We are inclined to hold that the testator used the words \u201cchildren,\u201d \u201cissue\u201d and \u201cheirs\u201d interchangeably in this will, as meaning the same thing, to-wit, \u201cchildren,\u201d in the ordinary sense of the word, and that if either of the three youngest children of the testator died without issue he wished the remainder in the property in which such child had a life estate to descend to the children of his children.\nThere is some argument in the briefs that an executory devise limited to take effect after death without issue should be held void because the contingency is too remote, the argument being that the devise would not take effect until after an indefinite failure of issue. A full discussion of this subject will be found in Kent\u2019s Commentaries, (vol. 4,\u2014 12th ed. \u2014 *281, *282, inclusive,) and Kales on Future Interests, (chap. 8.) We deem it unnecessary to discuss this subject, as this court has frequently decided that such a limitation would be valid. (Kellett v. Shepard, 139 Ill. 433; Summers v. Smith, 127 id. 645; Healy v. Eastlake, 152 id. 424; Smith v. Kimbell, 153 id. 368; Seymour v. Bowles, 172 id. 521; Johnson v. Askey, supra; Strain v. Sweeny, supra; Ortmayer v. Elcock, 225 Ill. 342.) Moreover, if the words in this will \u201cwithout issue\u201d are construed to mean \u201cwithout children,\u201d then it cannot be argued that this is an indefinite failure of issue. Kales on Future Interests, sec. 202, and note; 4 Kent\u2019s Com. (12th ed.) *278, and notes.\nThe words in dispute in the seventh clause of the will being construed to mean \u201cchildren,\u201d the rule in Shelley\u2019s case does riot apply. (Connor v. Gardner, 230 Ill. 258; 4 Kent\u2019s Com.\u201412th ed.\u2014*230.) The construction of the will by the chancellor was therefore correct.\nThe decree of the circuit court will be affirmed.\nDecree affirmed.", "type": "majority", "author": "Mr. Justice Carter" } ], "attorneys": [ "Frank Thomas, and J. H. Rennick, for appellants.", "V. G. FueeER, for appellees." ], "corrections": "", "head_matter": "Arta W. Stisser et al. Appellants, vs. Charles H. Stisser et al. Appellees.\nOpinion filed June 18, 1908.\n1. Wills \u2014 when words \u201cheirs,\u201d \u201cissue\u201d and \u201cchildren\u201d may he treated as synonymous. If it is apparent from the reading of a will that the testator has used the words \u201cheirs,\u201d \u201cissue\u201d and \u201cchildren\u201d interchangeably or synonymously the court is warranted in construing them in like manner so as to carry out the testator\u2019s intention, which is to be ascertained from the language employed, giving effect to the words according to the connection in which they are used.\n2. Same \u2014 when rule in Shelley\u2019s case does not apply. Where the testator has used the words \u201cheirs,\u201d \u201cissue\u201d and \u201cchildren\u201d interchangeably, a provision giving the use for life, in separate tracts of land, to three named children, and if either of them \u201cshall die without issue, then and in that case the properties herein willed to them, or either of them, or any part thereof, shall revert equally to the legal heirs of the other children, it being the will of the testator that the title to the property shall rest and abide in the hands of the legal heirs of the lawful heirs of the testator,\u201d etc., gives a life estate to the named children with remainder to the children of the testator\u2019s children, if any of the life tenants die without issue.\nAppear from the Circuit Court of Stark county; the Hon. Iv. D. Puterbaugh, Judge, presiding.\nThis is a bill filed in the circuit court of Stark county to partition certain lands devised by the will of Charles P. Stisser, deceased, alleging that he died February 23, 1901, leaving a widow, three sons and one daughter, his only heirs-at-lawy that the wife had a son, George W. Hamilton, by a former husband, who was adopted by the deceased and seems to have gone by the name of Stisser; that the will, probated on April 1, 1901, in Stark county, provided, first, that his debts should be paid; second, that his wife have the entire income during her life from a certain eighty acres in Stark county and at her death said land ' should go to his step-son, George W. Hamilton, during his natural life, and at his death to Hamilton\u2019s first four children, Bred, Charles, John and Carrie; third, that his son Edgar E. Stisser have a life interest in certain described lands in Stark county and after his death said land to be divided equally among said Edgar\u2019s children, and also gives the said Edgar, in fee simple, certain lands in New York; fourth, \u201cI give and bequeath unto my son Alta W. Stisser the use, during his natural life, of the following described land,\u201d (describing 160 acres of Stark county land) ; fifth, \u201cI give and bequeath unto my son Charles h- Stisser the use, during his natural life, of 170 acres of land,\u201d (describing 170 acres of Stark county land) ; sixth, \u201cI give and bequeath unto my daughter, Nettie D. Stisser, the use, during her natural life, of 128)4 acres of land, (describing 128)4 acres of Stark county land) ; I also give and bequeath unto my daughter, Nettie, the sum of $3000 in cash, as and for her own use;\u201d seventh, \u201cit is my will that should either of the above named children, Alta W. Stisser, Charles E. Stis-ser or Nettie D. Stisser, die without issue, then and in that cas\u00e9 the properties herein willed to them, or either of them, or any part thereof, shall revert equally to the legal heirs of the other children, it being the will of the testator that the title to the properties under sections No. 4, 5 and 6 herein shall rest and abide in the hands of the legal heirs of the lawful heirs of the testator hereto;\u201d eighth, the remaining personal property, after payment of expenses, is given to his three sons; ninth, appoints Edgar E. Stisser, his son, executor.\nThe bill alleges that by the will the land in New York passed in fee to Edgar E. Stisser; that the tract given for life to testator\u2019s wife vested in fee in the first four children of George W. Hamilton, subject to the respective life estates o'f the widow and George W. Hamilton; that the land in Stark county given to Edgar E. Stisser for life vested in fee, subject to his life estate, in his children. The bill then alleges that the land described in sections 4, 5 and 6, given for life to the two sons and one daughter of testator, was given in fee, by section 7, to the heirs of the heirs of the testator, and that under the rule in Shelley's case the child taking the life estate in the respective farm also took the fee in one-fourth of such farm, and the fee in the other three-fourths of such farm, subject to the life estate, vested in the legal heirs of the other three children. The bill further states that the said Nettie D. Stisser on January 5, 1906, died intestate, being a resident of Peoria cotinty, Illinois, leaving no husband or child or descendant of child her surviving, she never having been married, but leaving her mother, Caroline Stisser, and Edgar E. Stisser, Alta W. Stisser, Charles E. Stisser and George W. Hamilton, her brothers, her only heirs-at-law; that Charles E. Stisser was duly appointed administrator of her estate, and that upon the death of said Nettie D. the undivided one-fourth of said tract of land left to her for life by the will of her father, and which by the effect of the will became hers in fee simple, passed by descent to her mother, three brothers and a half brother, and the other undivided three-fourths of the said property that was left by said will to said Nettie D. Stisser descended to the legal heirs of her three brothers, Edgar E., Alta W. and Charles E. Stisser.\nA general demurrer was filed to the bill, which, on hearing, the chancellor sustained, holding that the appellants took no part of the fee and dismissing the bill for want of equity. From that decree an appeal has been taken to this court.\nFrank Thomas, and J. H. Rennick, for appellants.\nV. G. FueeER, for appellees." }, "file_name": "0207-01", "first_page_order": 207, "last_page_order": 213 }