{ "id": 5780876, "name": "Alice M. Potter, Appellant, vs. Samuel H. Potter et al. Appellees", "name_abbreviation": "Potter v. Potter", "decision_date": "1922-12-19", "docket_number": "No. 14415", "first_page": "37", "last_page": "49", "citations": [ { "type": "official", "cite": "306 Ill. 37" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "297 Ill. 321", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5041196 ], "opinion_index": 0, "case_paths": [ "/ill/297/0321-01" ] }, { "cite": "136 N. C. 460", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660871 ], "opinion_index": 0, "case_paths": [ "/nc/136/0460-01" ] }, { "cite": "127 Ill. 42", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5410665 ], "weight": 2, "pin_cites": [ { "page": "119" } ], "opinion_index": 0, "case_paths": [ "/ill/127/0042-01" ] }, { "cite": "206 Ill. 57", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5598296 ], "opinion_index": 0, "case_paths": [ "/ill/206/0057-01" ] }, { "cite": "120 Ill. 648", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5384077 ], "opinion_index": 0, "case_paths": [ "/ill/120/0648-01" ] }, { "cite": "163 Ill. 566", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5508066 ], "opinion_index": 0, "case_paths": [ "/ill/163/0566-01" ] }, { "cite": "85 Ill. 41", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2779768 ], "opinion_index": 0, "case_paths": [ "/ill/85/0041-01" ] }, { "cite": "132 Ill. 494", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5420749 ], "opinion_index": 0, "case_paths": [ "/ill/132/0494-01" ] }, { "cite": "239 Ill. 567", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 849047 ], "opinion_index": 0, "case_paths": [ "/ill/239/0567-01" ] }, { "cite": "264 Ill. 548", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5775394 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/264/0548-01" ] }, { "cite": "103 Ill. 11", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2803355 ], "opinion_index": 0, "case_paths": [ "/ill/103/0011-01" ] }, { "cite": "52 Ill. 62", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5301635 ], "opinion_index": 0, "case_paths": [ "/ill/52/0062-01" ] }, { "cite": "135 Ill. 80", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2984693 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/135/0080-01" ] }, { "cite": "67 Ill. 419", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 820093 ], "opinion_index": 0, "case_paths": [ "/ill/67/0419-01" ] }, { "cite": "135 Ill. 80", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2984693 ], "opinion_index": 1, "case_paths": [ "/ill/135/0080-01" ] } ], "analysis": { "cardinality": 801, "char_count": 26433, "ocr_confidence": 0.771, "pagerank": { "raw": 2.6156578539096245e-07, "percentile": 0.8208409061686608 }, "sha256": "c509e0eeb547c85a4c4428272a10d01b4a83587d5f1c985299a64de559c89f81", "simhash": "1:3160ab50254e6892", "word_count": 4684 }, "last_updated": "2023-07-14T20:43:16.851200+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Alice M. Potter, Appellant, vs. Samuel H. Potter et al. Appellees." ], "opinions": [ { "text": "Mr. Justice Dunn\ndelivered the opinion of the court:\nMaltby G. Potter died on August 28, 1908, the owner of lands in Iroquois county, which were devised by his will executed on October 2, 1901, which was admitted to probate, and, omitting the formal parts, reads as follows:\n\u201cFirst \u2014 It is my will and desire that my funeral expenses and all my just debts be fully paid.\n\u201cSecond \u2014 I give and bequeath to my wife, Mahala G. Potter, all my personal and real estate, of every name and nature, during her lifetime, she to receave all rents and revanews for same, and she to pay the taxes and care for the property, and at her death all the property to be equally divided between our living children or to their living heirs, each of our children to share equal and alike.\n\u201cLastly \u2014 I hereby nominate and appoint my sons George B. Potter and James C. Potter, \u2018they not to be required to give bond,\u2019 to be the executors of this my last will and testament, hereby revoking all former wills by me made.\u201d\nThe testator was survived by his wife, Mahala G. Potter, and six children. He had had other children, but all died in his lifetime, leaving no descendants. His daughter Jessie died ten days before his will was executed, leaving her husband, D. William Good, surviving her. The relationship between all the members of the Potter family in the lifetime of the father and mother was pleasant, as shown by the oral testimony. It further appeared from such testimony that William Good, husband of Jessie, was a resident of Roanoke, Virginia, at and since the death of Jessie, and that he was well to do financially. Of his children surviving him, his daughter Minnie G. Posson died leaving no descendants but leaving her husband, Cornelius Posson, surviving her, and his son Fred A. Potter died leaving no descendants but leaving his widow, Alice M. Potter, who is the appellant, surviving him. Afterward the testator\u2019s widow, the life tenant, died, and the appellant filed a bill for the construction of the will, alleging that she is entitled to one-half of the property owned by the testator at the time of his death which her husband, Fred A. Potter, would have taken had he survived his mother, Mahala G. Potter, and that Cornelius Posson was entitled to the same interest in the part which his wife, Minnie G. Posson, would have taken if she had survived her mother; that the surviving children of the testator deny her claims and insist that she did not take anything under the will, and she therefore prays for a construction of the will in accordance with her contention. The surviving children, who were made defendants, answered, admitting all the allegations of fact but denying that the appellant is entitled to any share in the estate of the testator, and averring that the true meaning of the will is that at the death of the widow the estate should be equally divided among the children then living. The court entered a decree finding that the true intention of the testator was that only the children who survived the life tenant were entitled to take under clause 2 of the will; that the words \u201cliving heirs\u201d should be construed as children or descendants and do not include the appellant, and decreeing that the surviving children of the testator are the owners in fee simple of the land and that no other persons have any interest therein. The complainant has appealed and insists that the construction of the court is erroneous, and that she is entitled as an heir of the son of the testator, who died in the lifetime of the life tenant,' to his share of the estate.\nThe case turns upon the construction to be given to the second clause of the will, particularly to the language which directs that all the property at the death of the life tenant shall \u201cbe equally divided between our living children or to their living heirs, each of our children to share equal and alike.\u201d The estate so devised to the children was manifestly a contingent remainder under the well established rule that a gift to survivors which is preceded by a particular estate, at the expiration of which the gift is to take effect in possession, will take effect in favor of those, only, who survive the particular estate. (Ridgeway v. Underwood, 67 Ill. 419; Blatchford v. Newberry, 99 id. 11; Schuknecht v. Schultz, 212 id. 43; Burlet v. Burlet, 246 id. 563; Bender v. Bender, 292 id. 358.) It could not be known until the death of the life tenant who would survive her to take the estate or who would be the heirs of any children who might have died in her lifetime.\nThe devise of the remainder being, \u201cto be equally divided between our living children or to their living heirs,\u201d indicates the intention of the testator to substitute the heirs of any child who may have died before the termination of the estate of the life tenant as a devisee in the place of the child so dying. (Ebey v. Adams, 135 Ill. 80; 1 Redfield on Wills, 486.) The essential question in controversy concerns the meaning to be given to the word \u201cheirs.\u201d Who are the \u201cliving heirs\u201d who are to share with the living children in the distribution of the estate? The word \u201cheirs\u201d is a technical word with a fixed legal meaning, and, unless controlled by or inconsistent with the context, must be interpreted according to its strict technical meaning, as importing those persons designated by law to succeed to the estate in case of intestacy. (Rawson v. Rawson, 52 Ill. 62; Richards v. Miller, 62 id. 417; Alexander v. Masonic Aid Ass\u2019n, 126 id. 558; Belleville Savings Bank v. Aneshaensel, 298 id. 292.) It is, however, frequently used not according to its technical meaning but in a more popular sense, and its signification then is to be taken according to the intention. It has been held to mean children, issue or descendants; (Bland v. Bland, 103 Ill. 11; Summers v. Smith, 127 id. 645; Smith v. Kimbell, 133 id. 368;) heirs of the blood of the testator; (Black v. Jones, 264 Ill. 548;) husband or wife; (Richards v. Miller, supra;) and it has been held to exclude the latter, even though technically an heir, where such meaning is inconsistent with the context. (Black v. Jones, supra; Smith v. Winsor, 239 Ill. 567.) The question is entirely one of intention, and in interpreting the language of the will to ascertain the intention which the testator has expressed, technical words must be given their legal effect even though the testator uses inconsistent words, unless the latter make it clear that the testator did not intend to use the technical words in their proper sense. Griswold v. Hicks, 132 Ill. 494.\nIn this case there is no context, no single word in the instrument, tending to qualify in any degree the three lines disposing of the remainder by directing its equal division among the living children or to their living heirs, each of the children to share equal and alike. No context appearing inconsistent with giving the word \u201cheirs\u201d its technical meaning, the appellees urge that it was the testator\u2019s plain intention to have the property remain in his immediate family, and evidence was introduced as to the condition of the testator\u2019s family at the time of the execution of his will and of his death from which the inference of such intention is sought to be drawn. There is no dispute in the evidence. At the date of the execution of his will the testator had six living children and ten grandchildren. His daughter Jessie had died ten days before, leaving no children but leaving a husband surviving her. Four other children had previously died, leaving no children and no spouses surviving. Four of the living children had children and two more were born during the life of the testator and another after his death and during the life tenancy. The other two children had no children. Both have died since the testator\u2019s death, leaving no children but leaving spouses. Appellant was married to the oldest of the testator\u2019s children on March 27, 1877. He died July 13, 1920, before the death of the life tenant. They had no children.\nIt is argued that the testator\u2019s intention was to keep the property for his own blood by giving it first to his wife for life and then at her death to his then living children and the children of such as had died. This is assuming an intention which may perhaps have existed in the testator\u2019s mind, but it clearly has no foundation in the language of his will. It is said that if the words \u201ctheir living heirs\u201d are to be interpreted in their technical sense, the share of the testator\u2019s son, the appellant\u2019s husband, would go to his heirs, who are his wife, (who is the appellant,) his mother, (the life tenant,) and his brothers and sisters who were alive at the death of the life tenant, all of them being technically the living heirs of Fred. This ignores the fact that the interests in the remainder conveyed by the will are contingent; that no child or heir took any interest in the remainder who was not living at the death of the life tenant; therefore the life tenant, his mother, could not take as an heir of Fred, though his brothers and sisters who were alive at her death, together with his widow, would take under the terms of the will.\nIt is also argued that the words \"or to their living heirs\u201d are intended to substitute the heirs of the children as devisees only in the event of there being no living children of the testator and his wife at the time of the death of the life tenant; that the four children living at that time take to the exclusion of the heirs of the children who died. This conclusion is directly contrary to the conclusion reached in the case of Ebey v. Adams, supra, and in the cases cited in the opinion in that case.\nThe circuit court erred in holding that the words \u201cliving heirs\u201d should be construed as children or descendants. Those words should be given their technical meaning and include all the legal heirs of the two deceased children of the testator that died after the death of the testator.\nThe decree is reversed and the cause remanded.\nReversed and remanded.\nPer Curiam :\nA rehearing having been granted in this cause, we have further considered all of the arguments and authorities submitted and are unable to recede from our former conclusion that the words \u201ctheir living heirs\u201d can not be consistently interpreted as meaning children or descendants, as contended by appellees\u2019 counsel. The meaning of the testator by the use of the words \u201ctheir living heirs,\u201d as shown by the context of the will, is just the same as if the word \u201cliving\u201d had not been used in that phrase at all. The latter part of clause 2 of the will should be interpreted as if it read, \u201cand at her death all the property to be equally divided between our living children or to their heirs, each of our children to share equal and alike.\u201d The word \u201cliving,\u201d preceding the word \u201cheirs,\u201d has no tendency whatever to narrow or limit the meaning of the technical word \u201cheirs\u201d as found in said clause. The living heirs are all those persons upon whom the law would in the first instance cast the inheritance upon the death of the ancestor intestate, as there can be no other heirs than living heirs. In other words, dead heirs cannot inherit or take property under a will, and all heirs that do inherit or take property must necessarily be living heirs, and must include all those persons who stand in the same relation to the ancestor in respect to the right of inheritance. (Jarman on Wills, 326, and citations.) So in this case, it is not possible, \u2014 at least, not reasonable or permissible, \u2014 to construe the words \u201cliving heirs\u201d as indicating an intention of the testator to use those words in the sense of living children or living descendants or as children or descendants. He had already used the words \u201cliving children,\u201d and the context shows that by the use of such words he meant living children, and when he afterwards used the words \u201cliving heirs,\u201d there is no good reason for concluding that he did not mean living heirs. If by such latter words he meant \u201cliving children,\u201d it would have been the most natural and probable thing for him to have used the words \u201cliving children\u201d instead of the words \u201cliving heirs,\u201d and the other parts of the will furnish no reason whatever for concluding that the words \u201cliving heirs\u201d meant living descendants or living issue. To so hold would simply mean that in a will the testator is not to be held as meaning what he plainly expresses therein and without other modification or expression whatever authorizing such interpretation. By the use of the words \u201cliving heirs\u201d the testator simply meant heirs of the deceased children living at the time of the death of the life tenant, as distinguished from those heirs of his deceased children living at the death of such deceased children. He clearly had in mind that if one or more of his six children should die before the life tenant, leaving heirs, some one or more of such heirs of his children might also die before the life tenant died, and he therefore used the term \u201cliving\u201d merely as indicating the heirs living or surviving at the death of the life tenant.\nThe foregoing is the only consistent interpretation, so far as we are able to see, of the words \u201cliving heirs.\u201d The word \u201cliving\u201d is used twice in said clause of the will, and by every rule of interpretation, as well as by the context itself, it must be interpreted as having the same meaning both times. It is not questioned that the words \u201cliving children\u201d used in the second clause mean children living at the death of the life tenant, and we are unable to see why the words \u201cliving heirs,\u201d in the same clause, can mean other than the heirs of the deceased children living at the death of the life tenant, and we must so interpret the words under the familiar rule of construction that words used in one part of a will must be understood in the same sense when used elsewhere in the same instrument, unless something in the context makes a different meaning imperative. (Duryea v. Duryea, 85 Ill. 41; Jenks v. Jackson, 127 id. 341; Stevenson v. Stevenson, 297 id. 338.) The word \u201cliving,\u201d twice used in said clause of the will, simply means \u201csurviving\u201d as used by the testator, and whether we use the term \u201cliving\u201d or \u201csurviving\u201d preceding the word \u201cheirs,\u201d that word is not narrowed or changed so as to authorize us to say that the word \u201cheirs\u201d means children or descendants. Had the testator intended to narrow the meaning of the word \u201cheirs\u201d and to use it in the sense of children or descendants, the proper and the only legal way to have accomplished that purpose would have been to use the ordinary legal words that are commonly employed for that purpose, such as \u201cbodily heirs\u201d or \u201cheirs of their bodies,\u201d or words of similar import. In the case of Glover v. Condell, 163 Ill. 566, the language of the gift over is, that \u201cin the event of the death of any of my children without living heirs of their body,\u201d etc. It was held by this court that the words \u201cwithout living heirs of their body\u201d import a definite failure of issue, and that the language used refers to the death of any one of the children of the testator without heirs of his body, or issue, living at the time of his death. In that holding the words \u201cliving heirs\u201d are held to mean living heirs, and not living children or living descendants. In other words, the word \u201cliving\u201d had no effect whatever to change the meaning of the word \u201cheirs\u201d into children or descendants. The court\u2019s holding in that case amounted to a holding that the words \u201cliving heirs of their body\u201d meant living children and descendants of the testator\u2019s children or living issue of such children, but it was the use of the words \u201cof their body,\u201d following the word \u201cheirs,\u201d that narrowed the meaning of the word \u201cheirs\u201d and caused this court to interpret the words \u201cheirs of their body\u201d to mean children or descendants, and the word \u201cliving,\u201d as is plainly seen, had no effect whatever in making such interpretation. In other words, if the words there used had been simply \u201cwithout living heirs,\u201d the word \u201cheirs\u201d would have been interpreted to mean heirs general, and not heirs of their body or their children and descendants.\nWe are supported by all the authorities that we have examined in making the foregoing interpretation. The word \u201cliving,\u201d like \u201cnearest,\u201d \u201cnext,\u201d \u201clegal,\u201d \u201clawful\u201d and \u201cright,\u201d or other similar adjectives used to qualify or modify the word \u201cheirs,\u201d has not been interpreted by the authorities in any case, so far as we can find, as having the effect to narrow the meaning of the word \u201cheirs\u201d following it so as to mean children, issue or descendants, unless other words are used in the context for that purpose. Accordingly it was held in the case of Ryan v. Allen, 120 Ill. 648, that the words \u201cnearest heirs\u201d should be construed to mean or include all those persons upon whom the law would in the first instance cast the inheritance upon the death of the ancestor intestate, and it was there said that those who are heirs are necessarily \u201cnearest heirs,\u201d and that \u201cnearest heirs\u201d can be no other than heirs general. Upon the same reasoning the words \u201clawful heirs\u201d received a similar construction by this court, and were held to mean the same as if the word \u201cheirs\u201d simply had been used, for the very satisfactory reason that there can be no such thing in law as \u201cunlawful heirs.\u201d (Deemer v. Kessinger, 206 Ill. 57; Silva v. Hopkinson, 158 id. 386.) For the same reason \u201clegal heirs\u201d received a similar construction in the case of Carpenter v. VanOlinder, 127 Ill. 42, and Vangieson v. Henderson, 150 id. 119. In the case of Wool v. Fleetwood, 136 N. C. 460, the provision in one item of the will was \u201cthat Leonard and Elizabeth shall own and occupy the property during their natural lives and at their death it shall go to their lawful heirs.\u201d It was argued before the court that the words \u201clawful heirs\u201d in that item of the will should be construed as meaning the children of the first taker. The court in overruling this contention said: \u201cThere can be no such thing as an unlawful heir. The term \u2018lawful heirs\u2019 means the heirs designated by the law to take from their ancestor, and it cannot be construed as meaning the children of the first taker.\u201d The court held, therefore, that the case fell directly within the rule in Shelley\u2019s case, and that Leonard and Elizabeth were vested with a fee simple title to the property. It is plain to be seen that had the words \u201cliving heirs\u201d been used in that will instead of the words \u201clawful heirs\u201d the construction of the will would have been the same for the very striking reason given by the court that there can be no such a thing as an unlawful heir, and that the court, instead of using that sentence, would have said \u201cthere can be no such a thing as a dead heir,\u201d and the court\u2019s reasoning would have been entirely logical and absolutely correct. In Washburn on Real Property (vol. i, 4th ed. *58,) it is said: \u201cA limitation to one and his \u2018right heirs\u2019 is the same as to his \u2018heirs simply,\u2019 and a limitation directly to the \u2018right heirs\u2019 of one carries a fee without adding the words \u2018and their heirs,' \u201d \u2014 citing Coke\u2019s Lit. ioa, 22b, and other authorities.\nAppellees rely on two cases as authority for construing the words \u201cliving heirs\u201d to mean children or descendants: Lee v. Roberson, 297 Ill. 321, and Wilson v. Wilson, 261 id. 174. An examination of those cases will show clearly by their context that it was not possible to otherwise construe the words \u201cliving heirs.\u201d It was the use of other words in the context there that showed clearly that the testator did not mean to use the word \u201cheirs\u201d in its technical sense, and for that reason the words \u201cliving heirs\u201d were held to mean living children or descendants. There is no such a showing in this record whatever and those cases are not applicable to the question. The authorities on this subject all support the doctrine that the word \u201cheirs,\u201d when simply modified by such words as \u201cright,\u201d \u201cnearest,\u201d \u201cnext,\u201d \u201clegal,\u201d \u201clawful\u201d and \u201cliving,\u201d is not narrowed in meaning, and should not be interpreted as meaning children or descendants unless followed by other words, or other words are found in the context showing clearly that the word \u201cheirs\u201d could only have been used in the sense of children or descendants, and for the simple reason that when such modifying words are given their ordinary interpretation they do not add any characteristic to the word \u201cheirs\u201d that the word does not have when not so modified. In other words, the meaning is the same when the modifiers are used as when the modifiers are omitted.\nThe original opinion in this case has been modified slightly in the language used in the concluding paragraph so as to express more clearly who are the persons to take under the testator\u2019s will, and as modified it correctly expresses the law in this case in every particular.", "type": "majority", "author": "Mr. Justice Dunn Per Curiam :" }, { "text": "Mr. Justice Cartwright,\ndissenting:\nIn real estate law the word \u201cheirs\u201d is a technical word of limitation, but in this case, where there is a devise to the children of the testator and an alternative devise in the event of the death of any of the children before the death of the life tenant, the words \u201ctheir living heirs\u201d are words of substitution, and persons coming within that designation take as purchasers. (Ebey v. Adams, 135 Ill. 80; Tea v. Millen, 257 id. 624.) The testator provided for the contingency of the death of a child or children, and upon the happening of such a contingency provided that the estate devised should go to their living heirs. The purpose of construction is merely to ascertain what was in the mind of the testator, and this is to be determined by the language which he used in his will. I do not agree with the statement that there is no context and no single word in the instrument tending to qualify in any degree the meaning of the word \u201cheirs.\u201d In construing a will it is presumed that every word qualifying another word is intended by the testator to have some meaning. (Tea v. Millen, supra.) In a holding that the testator meant those persons who are made heirs by statute the word \u201cliving\u201d is senseless and has no meaning or application, because those upon whom the law casts an intestate estate are all living, and the testator could not have intended to include only such as should be living. If the words \u201cliving heirs\u201d are applied to children or descendants they have a meaning, and a natural one. It seems clear to me that the testator had in mind children and lineal descendants, only, and had no thought of collateral heirs generally. He not only provided that the property should be equally divided between the living children or their living heirs, but added after the substituted devise, \u201ceach of our children to share equal and alike,\u201d although he had already provided for an equal division.", "type": "dissent", "author": "Mr. Justice Cartwright," } ], "attorneys": [ "A. F. Goodyear, and R. F. Goodyear, for appellant.", "Free P. Morris, and Roscoe C. South, for appellees." ], "corrections": "", "head_matter": "(No. 14415.\n\u2014Reversed and remanded.)\nAlice M. Potter, Appellant, vs. Samuel H. Potter et al. Appellees.\nOpinion filed December 19, 1922.\n1. Wills \u2014 remainder to life tenant\u2019s \u201cliving children or to their living heirs\u201d is contingent. A devise to the testator\u2019s wife for her life, with a provision that the remainder at her death shall \u201cbe equally divided between our living children or to their living heirs,\u201d creates a contingent remainder under the rule that a gift to survivors which is preceded by a particular estate at the expiration of which the gift is to take effect in possession, will take effect in favor of those, only, who survive the particular estate.\n2. Same \u2014 when word \u201cheirs\u201d must be given its technical meaning. A devise of a remainder at the death of the life tenant to the testator\u2019s \u201cliving children or to their living heirs\u201d indicates an intention to substitute the legal heirs of any child who dies before the termination of the life estate as devisees in place of the child so dying, where there is nothing in the will showing a contrary intention; and the word' \u201cliving\u201d merely limits the gift over to those heirs who survive the death of the life tenant.\n3. Same \u2014 when technical words must be given their legal effect. In construing a will, technical words must be given their legal effect even though the testator uses inconsistent words, un- \u25a0 less the latter make it clear that he did not intend to use the technical words in their strict sense.\n4. Same \u2014 who will take as \u201cliving heirs.\u201d Under a devise of a contingent remainder at the life tenant\u2019s death to the testator\u2019s \u201cliving children or to their living heirs,\u201d if a son of the testator dies during the existence of the life estate leaving a wife but no children, his wife and his brothers and sisters living at the life tenant\u2019s death will take the deceased son\u2019s share, but the life tenant, his mother, will take no interest.\n5. Same \u2014 when children who survive the period of distribution must share the gift over with other heirs of any deceased child. Where a testator provides that at the death of his wife, who is made life tenant, his property shall be \u201cequally divided between our living children or to their living heirs,\u201d the \u201cheirs\u201d are not intended to be substituted only in the event of the death of all the children, nor are the children who survive to take all, but the children living at the time of distribution must share, as heirs, with other heirs of any children who died prior to the death of the wife.\n6. Same \u2014 who are heirs. Heirs are all those persons upon whom the law in the first instance casts the inheritance upon the death of the ancestor intestate, and there can be no other heirs than living heirs.\n7. Same \u2014 when words repeated in a will must be understood in same sense as when first used. Words used in one part of a will must be understood in the same sense when used elsewhere in the same instrument, unless something in the context makes a different meaning imperative.\n8. Same \u2014 when modifying words do not affect meaning of the word \u201cheirs.\" The word \u201cheirs,\u201d when preceded by such words as \u201cright,\u201d \u201cnearest,\u201d \u201cnext,\u201d \u201clegal,\u201d \u201clawful\u201d and \u201cliving,\u201d is not narrowed in meaning, and should not be interpreted, in such case, as meaning children or descendants unless followed by other words or where the context clearly shows the modified meaning.\nCartwright, J., dissenting.\nAppeal from the Circuit Court of Iroquois county; the Hon. Frank L. Hooper, Judge, presiding.\nA. F. Goodyear, and R. F. Goodyear, for appellant.\nFree P. Morris, and Roscoe C. South, for appellees." }, "file_name": "0037-01", "first_page_order": 37, "last_page_order": 49 }