{ "id": 3442365, "name": "John G. Kleinhans et al. Appellees, vs. Edwin Kleinhans et al. Appellants", "name_abbreviation": "Kleinhans v. Kleinhans", "decision_date": "1912-02-23", "docket_number": "", "first_page": "620", "last_page": "624", "citations": [ { "type": "official", "cite": "253 Ill. 620" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "163 Ill. 603", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5508190 ], "opinion_index": 0, "case_paths": [ "/ill/163/0603-01" ] }, { "cite": "228 Ill. 507", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5628878 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/228/0507-01" ] }, { "cite": "153 Ill. 368", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3028589 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/153/0368-01" ] } ], "analysis": { "cardinality": 429, "char_count": 10395, "ocr_confidence": 0.692, "pagerank": { "raw": 1.487649105594913e-07, "percentile": 0.6624258788832863 }, "sha256": "a9571ee6955a7127da3a70476e0456d62b553b9727e28c8ed4a75669b719a0fd", "simhash": "1:a364bc76d414aba7", "word_count": 1850 }, "last_updated": "2023-07-14T17:53:56.303877+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "John G. Kleinhans et al. Appellees, vs. Edwin Kleinhans et al. Appellants." ], "opinions": [ { "text": "Mr. Justice Vickers\ndelivered the opinion of the court:\nThis is an appeal from a decree of the superior court of Cook county construing the last will and testament of acob Kleinhans, deceased. Jacob Kleinhans died January 18, 1878, leaving a widow, Anna Maria Kleinhans, and two children, Johann G. Kleinhans and Anna M. Greifenhagen, him surviving. The two children of the testator are both living and each of them has children, who are appellants in this cause. The will of the testator provides in the first clause for the payment of all just debts and funeral expenses, and in the second clause the real estate of the testator is devised to his wife during her natural life. The third clause gives the wife all the personal property, of every kind and character. The fourth clause provides that the wife shall not sell or dispose of, by will, any of the real or personal property devised to her, and directs that certain income derived from loans made by the testator shall be used to give his son, Johann Georg Friedrich, a high school education and for the support of the children until they arrive at their majority. By the fifth clause the daughter, Anna Maria, is given $300, to be paid when she arrives at the age of eighteen years. The sixth clause is the one that is in question in this litigation, and is as follows: \u201cAfter the death of my said beloved wife, Anna Maria, I give, bequeath and devise the rest, residue and remainder of my estate, real and personal, to my two children,\u2014to my son, Johann Georg Friedrich, and to my daughter, Anna Maria Friedricke,\u2014share and share alike, and in case of their death, then to their children, only, and if no children are left by them, then the survivor of my said children shall inherit the other\u2019s.\u201d The superior court held that under the sixth clause the son \"and daughter took an estate in fee and rendered a decree accordingly, to reverse which the grandchildren of the testator have prosecuted an appeal to this court.\nThe bill in this case avers, and the answer admits, that after the son and daughter attained their majority they executed quit-claim deeds to the widow, and it is admitted that the widow died intestate, leaving as her only heirs-at-law her son, Johann Georg Kleinhans, and Anna M., who had married one Greifenhagen. The son and daughter of the testator claim the real estate in fee by descent from their mother. Whether this claim is well founded depends upon the construction to be given to the sixth clause of the testator\u2019s will. The first sentence of said clause, standing alone, would clearly pass a fee simple title to the son and daughter. That sentence reads as follows: \u201cI give, bequeath and devise the rest, residue and remainder of my estate, real and personal, to my two children,\u2014to my son, Johann Georg Friedrich, and to my daughter, Anna Maria Friedricke,'\u2014share and share alike.\u201d Since the enactment of section 13 of our Conveyance act it is not necessary that words of inheritance should be used in order to convey a fee simple estate. Smith v. Kimbell, 153 Ill. 368; Metzen v. Schott, 202 id. 275; Hill v. Gianelli, 221 id. 286.\nAppellees insist, and the court below held, that the latter portion of clause 6 does not cut the fee simple estate down to a life estate in the primary devisees. The latter part of said clause, which appellants contend modifies the preceding clause, is as follows: \u201cAnd in case of their death, then to their children, only, and if no children are left by them, then the survivor of my said children shall inherit the other\u2019s.\u201d We are unable to agree with the chancellor who tried this cause that the latter part of clause 6 has no effect upon the meaning to be given to the entire clause. The testator clearly intended to devise his' estate in such way that his widow and his two children, and any grandchildren that he might thereafter have, would enjoy the benefit of his property to the exclusion of all other persons. He first provides for his widow by giving her a life estate in all of his property, both real and personal. He then provides that after the death of his wife his son and daughter should have the estate, share and share alike, and in case of their death, then to their children, only, and if no children are left by them, the survivor would take the entire life estate.\nThere is a well recognized distinction between a devise simpliciter to one person and in case he should die (which is inevitable) to another, and a devise over coupled with a contingency, such as die under age or unmarried, which may or may not happen. In the former case it is held that the time of death referred to is before the death of the testator, and under such a clause, if the primary devisee survives the testator he will take an estate in fee and the devise over will never take effect. (Fifer v. Allen, 228 Ill. 507.) But this rule has no application to a devise over which is connected with a contingency which may or may not happen. (Fifer v. Allen, supra.) In'such case the time of death referred to is death at any time under the conditions named, either before or after the death of the testator. Under the clause of the will before us it is clear that the testator intended that his son and daughter should have a life estate, only, and the devise over of a remainder in fee was to such of their children as might be living at the time of the death of their parents, and in case either of said children of the testator died without leaving any child or children surviving them, then the survivor of the two children should take the entire life estate. The words, \u201cin case of their death, then to their children, only,\u201d mean that the remainder to the grandchildren is contingent upon their surviving their parents. The word \u201cthen\u201d in this connection is an adverb of time, and means \u201cat that time.\u201d (Strain v. Sweeny, 163 Ill. 603.) This conclusion is further borne out by the next clause of the sentence, \u201cand if no children are left by them.\u201d\nThis case is to be distinguished from cases where the expression \u201cdie without issue,\u201d and the like, is used, which is held to mean death without having had issue. Here only the children \u201cleft\u201d at the death of the primary devisees can take, which is equivalent to saying, \u201csuch of their children as survive their parents shall take.\u201d The remainder, therefore, to the appellants is contingent and depends upon their surviving their parents. While both of the appellees now have living children it is not impossible that the children may die before their parents, in which event the surviving brother or sister would take the share of the one dying without leaving children surviving. ,\nIn Smith v. Kimbell, supra, the will devised certain real estate to the testator\u2019s daughter, Sarah Jane Spears, and provided, \u201cand should the said Sarah Jane Spears die leaving no heirs, I will and direct that all of the above described property shall be equally divided between my sisters,\u201d (naming them.) It was held that the word \u201cheirs\u201d in the clause quoted meant \u201cchildren,\u201d and that the clause should be construed as though it read, \u201cshould the said Sarah Jane Spears die leaving no children at the time of her death.\u201d It was held in that case that the devise to Sarah Jane Spears was a base or determinable fee, subject to be divested upon her dying without leaving children at the time of her death. But the language of the will in the case before us cannot be construed as creating a base fee, for in no contingency does the estate of the testator\u2019s two children ever become anything more than a life estate in them. If either of them dies leaving children the estate vests in such children, and in case either should die leaving no children the life estate vests in the survivor, and upon the death of such surviving devisee, leaving children, such children would take the whole estate in fee. If both of the testator\u2019s children die leaving no child or children, the fee. is not disposed of and would become intestate property.\nIt follows from what we have said that the court below erred in holding that the two children of the testator took a fee simple title under the sixth clause of the will.\nThe decree of the superior court of Cook county is reversed and the cause remanded, with directions to enter a decree in conformity with the views herein expressed.\nReversed and remanded, with directions.", "type": "majority", "author": "Mr. Justice Vickers" } ], "attorneys": [ "Edmund W. EroEhlich, for appellants.", "Goldzier, Rodgers & Eroeheich, for appellees." ], "corrections": "", "head_matter": "John G. Kleinhans et al. Appellees, vs. Edwin Kleinhans et al. Appellants.\nOpinion filed February 23, 1912\nRehearing denied April 3, 1912.\n1. Wiles\u2014section 13 of Conveyances act removes necessity for using words of inheritance. Since the enactment of section 13 of the Conveyances act it has not been necessary to use words of inheritance in order to convey or devise a fee simple estate.\n2. Same\u2014when devise over will not take effect. If there is a devise simpliciter to one person and in case he should die (which is inevitable) to another, the time of death referred to is before the death of the testator, and if the first devisee survives the testator he takes an estate in fee and the devise over never takes effect; but if the devise over refers to death connected with a contingency which may or may not happen, the time of death referred to is at any time under the conditions named, either before or after the testator\u2019s death, and the mere fact that the first devisee survives the testator does not vest the fee simple in him.\n3. Same\u2014when will creates only a life estate with a contingent remainder. A devise to the testator\u2019s wife for life and after her death to the testator\u2019s son and daughter in equal shares, \u201cand in case of their death then to their children, only, and if no children are left by them, then the survivor of my children shall inherit the other\u2019s,\u201d creates in the son and daughter a life estate after the death of the testator\u2019s wife, with remainder to those children of the son and daughter who may survive their' parents; and if either life tenant digs leaving no children then the surviving life tenant takes the entire life estate, and the children of such survivor, if any there be, will take the whole estate in fee, but if no children survive either life tenant then the fee becomes intestate estate.\nAppeal from the Superior Court of Cook county; the Hon. Theodore BrEntano, Judge, presiding.\nEdmund W. EroEhlich, for appellants.\nGoldzier, Rodgers & Eroeheich, for appellees." }, "file_name": "0620-01", "first_page_order": 620, "last_page_order": 624 }