{ "id": 3408349, "name": "Edwin Elmer Kendall et al. Appellants, vs. Olive Lillian Taylor et al. Appellees", "name_abbreviation": "Kendall v. Taylor", "decision_date": "1910-06-29", "docket_number": "", "first_page": "617", "last_page": "622", "citations": [ { "type": "official", "cite": "245 Ill. 617" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "191 Ill. 461", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3246850 ], "weight": 2, "pin_cites": [ { "page": "504" } ], "opinion_index": 0, "case_paths": [ "/ill/191/0461-01" ] }, { "cite": "169 Ill. 432", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3184466 ], "opinion_index": 0, "case_paths": [ "/ill/169/0432-01" ] }, { "cite": "31 N. J. Eq. 234", "category": "reporters:state", "reporter": "N.J. Eq.", "case_ids": [ 728982 ], "opinion_index": 0, "case_paths": [ "/nj-eq/31/0234-01" ] }, { "cite": "111 Mass. 132", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 2113041 ], "opinion_index": 0, "case_paths": [ "/mass/111/0132-01" ] }, { "cite": "67 Me. 493", "category": "reporters:state", "reporter": "Me.", "case_ids": [ 639542 ], "opinion_index": 0, "case_paths": [ "/me/67/0493-01" ] }, { "cite": "173 Ill. 229", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5539543 ], "opinion_index": 0, "case_paths": [ "/ill/173/0229-01" ] }, { "cite": "239 Ill. 389", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 849046 ], "opinion_index": 0, "case_paths": [ "/ill/239/0389-01" ] }, { "cite": "228 Ill. 507", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5628878 ], "opinion_index": 0, "case_paths": [ "/ill/228/0507-01" ] }, { "cite": "244 Ill. 138", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3412320 ], "opinion_index": 0, "case_paths": [ "/ill/244/0138-01" ] }, { "cite": "153 Ill. 368", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3028589 ], "weight": 2, "pin_cites": [ { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/ill/153/0368-01" ] }, { "cite": "68 Ill. 588", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2627870 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/68/0588-01" ] }, { "cite": "208 Ill. 60", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3297351 ], "opinion_index": 0, "case_paths": [ "/ill/208/0060-01" ] }, { "cite": "202 Ill. 239", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 847219 ], "opinion_index": 0, "case_paths": [ "/ill/202/0239-01" ] } ], "analysis": { "cardinality": 521, "char_count": 10518, "ocr_confidence": 0.726, "pagerank": { "raw": 1.9042243650764914e-07, "percentile": 0.7306939516550965 }, "sha256": "36251aa15d3c64fbb997441cac6c5483200ae83371ba267550c7ed5a473064e6", "simhash": "1:fe09f22cf4bdf8ab", "word_count": 1868 }, "last_updated": "2023-07-14T14:47:20.715518+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Edwin Elmer Kendall et al. Appellants, vs. Olive Lillian Taylor et al. Appellees." ], "opinions": [ { "text": "Mr. Justice Carter\ndelivered the opinion of the court:\nThis was a bill filed in the circuit court of Menard county by the appellants, Edwin Elmer Kendall and Albert Leslie \"Kendall, for a partition of about 238 acres of land in that county. After issues were joined and a hearing had the court ordered that the partition be made but determined the interests of appellants in the land to be different from that prayed for by them. From this decree they have appealed to this court.\n\u25a0 The decision in this case hinges upon the construction to be given to the will of Francis M. Kendall, which, so far as it bears on the issues here, reads as follows:\n\u201cI give, bequeath and devise all of my estate, both real and personal, wherever situate, to my two sons, Edwin Elmer Kendall and Albert Leslie Kendall, share and share alike, and in case of the death of either of my said sons without issue, then the estate hereinbefore devised to him shall go to the survivor of them, and in case of the death of both of my said sons without issue, or in case of the death of both of said sons prior to my decease, then in such case, or either of them, I devise all of my estate, of every kind and character, to my sister, Olive Lillian Taylor, -and my half-brothers, Orren Kendall and David Miles Kendall, share and share alike, to have and to hold the same forever.\u201d\nAt the time the will was executed, December 15, 1896, the testator was forty-two years old. Edwin Elmer Kendall was then fourteen years old and Albert Leslie Kendall seven years of age. The testator died May 22, 1909, and the will was duly admitted to probate. He left no widow and appellants herein were his only children and heirs-at-law. Both sons are still living, Edwin having a daughter five years of age and Albert a son about one year of age. These two infant grandchildren of the testator, his sister, Olive Lillian Kendall, and his two half-brothers, Orren Kendall and David Miles Kendall, (the last named being also executor,) were made parties defendant to the bill and are appellees here. The decree found that the will should be so construed that appellants each take a base or determinable fee in the real estate as tenants in common; that the phrase \u201cwithout issue,\u201d as used in the will, means \u201cwithout leaving issue living at the time of said complainants\u2019 decease,\u201d and that in case of the death of either of said appellants without leaving issue living at the time of his decease, the title to the real estat\u00e9 would vest as a base or detenninable fee in the survivor of said two sons; that in case of the death of both of said sons without either of them leaving issue living at the time of the decease of such sons, then the title to such real estate should vest in the sister and two half-brothers, share and share alike, in fee simple absolute. The decree also provided that \u201csiu,ce the principal relief sought in this proceeding is the construction of the will involved herein, and since such construction and determination of the legal effect of said will was necessary to determine the character of partition to be allowed,\u201d $250 be fixed as the fee for the solicitor for the defendants and taxed as costs.\nThe principal contention in this case is as to whether the trial court properly construed by its decree the will in question. The decision rests upon whether the words of the will \u201cdeath without issue\u201d shall be construed to mean \u201cdeath without having had issue\u201d or \u201cdeath without issue surviving.\u201d The courts are disposed to favor such a construction of the will .as to give the absolute fee to the first taker, so as not to tie up the property and prevent its alienation, (Bradsby v. Wallace, 202 Ill. 239,) and a construction is uniformly adopted which favors the heir. (Kohtz v. Eldred, 208 Ill. 60.) In Voris v. Sloan, 68 Ill. 588, the words \u201cshould die without issue\u201d occurred in a deed of trust, and were construed to mean without having had issue,\u2014not without surviving issue. To the same effect are Smith v. Kimbell, 153 Ill. 368, Field v. Peeples, 180 id. 376, and King v. King, 215 id. 100. In Stafford v. Read, 244 Ill. 138, this court, after discussing the authorities just referred to and several others that are cited and relied on by counsel for appellees in this case, construed the words \u201cshall die without issue\u201d as meaning \u201cif they should die without having had issue or children born to them.\u201d\nCounsel for appellees argue that the words \u201cdie with-' out issue\u201d are construed by the courts to mean \u201cdie without having had issue\u201d only when the first taker is vested with a life estate, but that where the first taker receives the fee and the language of the will makes the title return upon his dying \u201cwithout issue,\u201d then such first taker only takes a base or qualified fee. No such distinction is made by the authorities in construing the words \u201cdie without issue.\u201d Their meaning is not controlled by the question whether the first taker has a life estate or a greater or less estate, but rests rather upon the connection in which such words are used and the intention of the testator, as shown by the entire will. It is the settled rule of law that the courts are inclined to construe the words \u201cdie without issue,\u201d or words of similar import, to mean \u201cdie without having had issue,\u201d unless there are \u201cexpressions or circumstances from which it can be collected that these words are used in a more restricted sense.\u201d Voris v. Sloan, supra; and see, also, Kales on Future Interests. see 199; Fifer v. Allen. 228 Ill. 507.\nCounsel for the appellees earnestly insists that there are such expressions or circumstances as would lead to the conclusion that these words were not here used with their primary meaning. We cannot assent to this view. The intention of the testator as expressed in the will must be ascertained and given effect if not prohibited by law. (Armstrong v. Barber, 239 Ill. 389, and cases cited.) The intention of the testator, gathered from the entire will, manifestly was that if both of appellants had issue born to them, then the entire estate should vest in said appellants, share and share alike. This conclusion, in our judgment, must necessarily follow under the general rules of law laid down in this and other jurisdictions as to the construction of wills, as well as from the decisions of this court in applying those rules to particular cases. The birth of a child to each of appellants settled any controversy that might arise in regard to the land ever passing to appellees. The chancellor should have entered a decree partitioning the lands in accordance with the prayer of the bill.\nCounsel for appellants further insist that the trial court erred in taxing the solicitor\u2019s fees of appellees\u2019 counsel as cost\u00a7. It is admitted that the fees are reasonable for the. work performed, but it is argued that appellees should personally pay these fees. The general rule is, that when the testator has expressed his intention in his will so ambiguously as to make it necessary to go into a court of chancery to get' a \u2018construction of the will in order to determine which of two or more adverse claims to the same fund or property is valid, the costs of the litigation should be borne by the fund or property in question. (Arnold v. Alden, 173 Ill. 229; Lombard v. Witbeck, 173 id. 396; Woman\u2019s Union Missionary Society v. Mead, 131 id. 338; Straw v. Societies, 67 Me. 493; Deane v. Home, 111 Mass. 132; Noe\u2019s Admr. v. Miller\u2019s Exrs. 31 N. J. Eq. 234; Ingraham v. Ingraham, 169 Ill. 432.) This is not a bill for the construction of a will but for the partitioning of real estate. No trust was created by the will and no grounds are alleged in the bill that would give a court of equity jurisdiction in the case except that partition is sought of the lands of testator. Under the rules governing the allowance of solicitor\u2019s fees in partition proceedings, appellees are not entitled to the payment of such fees out of the funds of the estate. (Bliss v. Seeley, 191 Ill. 461; McMullen v. Reynolds, 209 id. 504; Jones v. Young, 228 id. 374; Mul loy v. Mulloy, 231 id. 285.) On the facts shown on this record the circuit court erred in allowing solicitor\u2019s fees to appellees.\nThe decree of the circuit court is reversed and the cause remanded for further proceedings in conformity with this opinion.\nReversed and remanded.", "type": "majority", "author": "Mr. Justice Carter" } ], "attorneys": [ "L. A. Whipp, (John M. Smoot, of counsel,) for appellants.", "Milton McClure, for appellees." ], "corrections": "", "head_matter": "Edwin Elmer Kendall et al. Appellants, vs. Olive Lillian Taylor et al. Appellees.\nOpinion filed June 29, 1910\nRehearing denied October 6, 1910.\n1. Wills\u2014courts favor construction giving fee to first taker. In construing wills courts are disposed to favor such a construction as will give the fee to the first taker, so as not to tie up the property and prevent its alienation, and a construction is uniformly adopted which favors the heir.\n2. Same\u2014meaning of words \"die without issue\u201d depends upon intention of the testator. Whether the words \u201cdie without issue\u201d shall be held to mean without having had issue or without leaving issue surviving does not depend upon whether the first taker has a life estate or a greater or less estate, but rests rather upon the connection in which such words are used and the intention of the testator as shown by the entire will.\n3. Same\u2014courts are inclined to construe words \u201cdie without issue\u201d as meaning without having had issue. Courts are inclined to construe the words \u201cdie without issue\u201d as meaning \u201cdie without having had issue,\u201d unless there are expressions or circumstances from which it can be collected that these words are used in a more restricted sense.\n4. Same\u2014when cost of litigation should be borne by the fund. If the testator has expressed his intention in his will so ambiguously as to make it necessary to go into a court of chancery to get a construction of the will in order to determine which of two or more adverse claims to the same fund or property is valid, the costs of the litigation should be borne by the fund or property.\n5. Partition\u2014when defendants are not entitled to solicitor\u2019s fees. Defendants in a partition proceeding are not entitled to have their solicitor\u2019s fees paid out of the estate, even though the case involves the construction of a will, where no trust was created by the will and no grounds alleged which would give a court of equity jurisdiction of the case other than the partitioning of the lands.\nAppeal from the Circuit Court of Menard county; the Hon. Guy R. Williams, Judge, presiding.\nL. A. Whipp, (John M. Smoot, of counsel,) for appellants.\nMilton McClure, for appellees." }, "file_name": "0617-01", "first_page_order": 617, "last_page_order": 622 }