{ "id": 5210076, "name": "Charles Leroy Beall et al. Appellees, vs. Edmond Lane Beall et al. Appellants", "name_abbreviation": "Beall v. Beall", "decision_date": "1928-06-23", "docket_number": "No. 18405", "first_page": "28", "last_page": "34", "citations": [ { "type": "official", "cite": "331 Ill. 28" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "316 Ill. 583", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5140949 ], "opinion_index": 0, "case_paths": [ "/ill/316/0583-01" ] }, { "cite": "112 Ill. 242", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2862299 ], "opinion_index": 0, "case_paths": [ "/ill/112/0242-01" ] }, { "cite": "141 Ill. 337", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5457262 ], "opinion_index": 0, "case_paths": [ "/ill/141/0337-01" ] }, { "cite": "235 Ill. 207", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 8499867 ], "opinion_index": 0, "case_paths": [ "/ill/235/0207-01" ] }, { "cite": "306 Ill. 279", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5781967 ], "opinion_index": 0, "case_paths": [ "/ill/306/0279-01" ] }, { "cite": "262 Ill. 86", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4752220 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill/262/0086-01" ] }, { "cite": "67 Ill. 28", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 820171 ], "weight": 4, "pin_cites": [ { "page": "119" }, { "page": "57" } ], "opinion_index": 0, "case_paths": [ "/ill/67/0028-01" ] }, { "cite": "62 Ill. 86", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2606139 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/62/0086-01" ] } ], "analysis": { "cardinality": 579, "char_count": 11244, "ocr_confidence": 0.786, "pagerank": { "raw": 1.755239810877972e-07, "percentile": 0.7091031175948868 }, "sha256": "55b2050223779bf1ccfc5b29dc69558ebd48b6fc1f336f62db943ce9fa91d8b8", "simhash": "1:a676b03b5804f00d", "word_count": 1943 }, "last_updated": "2023-07-14T19:21:24.103213+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Charles Leroy Beall et al. Appellees, vs. Edmond Lane Beall et al. Appellants." ], "opinions": [ { "text": "Mr. Chief Justice DeYoung\ndelivered the opinion of the court:\nEdmond Beall died testate in the city of Alton on January 31, 1920. His will and codicil thereto were admitted to record by the probate court of Madison county. The second and eleventh sections of the will are as follows:\n\u201cSecond \u2014 I hereby give, devise and bequeath unto my wife, Mary E. Beall, my residence at No. 407 E. Twelfth street, Alton, Illinois, together with the contents thereof, in the way of furnishings, etc., for and during the term of her natural life, and the sum of one thousand five hundred ($1500) dollars cash, to be paid to her within three (3) months, after my decease, said money to be her absolute estate forever, and to ber-in lieu of any widow\u2019s dower or allowance under the statutes of the State of Illinois.\u201d\n\"Eleventh \u2014 Upon the death of my said wife, Mary E. Beall, it is my will, and I hereby give, devise and bequeath unto my son, Edmond Harris Beall, my homestead, located at No. 407 East Twelfth street, in the city of Alton, together with all the furniture and effects therein contained; said son to have and to hold all of said property for and' during the term of his natural life, with no right to sell, convey or mortgage the same however, and at his death said property, together with all the furnishings therein, to vest in fee, in his children and grandchildren, share and share alike, if any there be. Should my said son, Edmond Harris Beall, die, no children or grandchildren him surviving, then, in such event, the property herein devised unto him for life shall vest in my remaining children, share and share alike, the children of any deceased child or children to take the parent\u2019s share.\u201d\nMary E. Beall, the testator\u2019s widow, died on April 13, 1925, and her life estate created by the second section of the will became extinguished. Edmond Harris Beall, the life tenant under section 11, thereupon took possession of the property. He has two minor children, Edmond L. Beall\u2019 and Helen M. Beall, both of whom were living when their grandfather, the testator, died. On September 1, 1926, Edmond Harris Beall and Nell L. Beall, his wife, by a warranty deed conveyed to Charles Leroy Beall, another son of the testator, an undivided one-tenth interest in the property described in the eleventh section of the will. This deed was filed for record on September 11, 1926. Thereafter Charles Leroy Beall, the grantee in the deed, and Harriet B. Beall, his wife, instituted suit in the circuit court of Madison county for the partition of the property against Edmond Harris Beall and Nell L. Beall, his wife, and Edmond L. Beall and Helen M. Beall, minors. The bill was taken as confessed by the adult .defendants. A guardian ad litem was appointed for the minor defendants, and he filed a demurrer to the bill in their behalf. The demurrer was overruled, the guardian ad litem elected to stand by the de- \u25a0 murrer, and a decree for partition was rendered. From that decree the minor defendants prosecute this appeal.\nAppellants contend that the title to the real estate in question is vested in them in fee simple, subject only to the life estate of Edmond Harris Beall, and that appellees can not maintain a bill for partition of that real estate against them. Appellees, on the contrary, insist that the eleventh section of the will is governed by the rule in Shelley\u2019s case, and that, consequently, Edmond Harris Beall took the whole estate. Both appellants and appellees agree that, to determine this question, only the provisions of the eleventh section need be considered; that if the rule in Shelley\u2019s case is applicable the demurrer of appellants was properly overruled, and that if the rule has no application the circuit court should have sustained the demurrer and dismissed the bill for want of equity.\nThe rule in Shelley\u2019s case is defined by Preston as follows: \u201cWhen a person takes an estate of freehold, legally or equitably, under a deed, will or other writing, and afterward, in the same deed, will or writing, there is a limitation by way of remainder, with or without the interposition of any other estate, of an interest of the same quality, as legal or equitable, to his heirs generally or his heirs of his body by that name in deeds or writings of conveyance, and by that or some such name in wills, and as a class or denomination of persons to take in succession from generation to generation, the limitation to the heirs will entitle the person or ancestor himself to the estate or interest imported by that limitation.\u201d (1 Preston on Estates, 263; Baker v. Scott, 62 Ill. 86.) Chancellor Kent\u2019s definition is: \u201cWhen a person takes an estate of freehold, legally or equitably, under a deed, will or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality to his heir or heirs of his body, as a class of persons to take in succession from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate.\u201d (4 Kent\u2019s Com. 215.) This statement of the rule, either fully or in a condensed form, is found in many authorities, among which are: Beacroft v. Strawn, 67 Ill. 28; Vangieson v. Henderson, 150 id. 119; Dcenter v. Kessinger, 206 id. 57; Johnson v. Buck, 220 id. 226; Miller v. Mowers, 227 id. 392; Lord v. Comstock, 240 id. 492; Winter v. Dibble, 251 id. 200.\nThe rule in Shelley\u2019s case, Hayes says, \u201cassumes and founds itself upon two pre-existing circumstances: a freehold in the ancestor, and a remainder to the heirs. The absence of either of these ingredients repels the application of the rule; their concurrence irresistibly invites it.\u201d (1 Hayes on Conveyancing, \u2014 5th ed. \u2014 542; Kales on Estates and Future Interests, \u2014 2d ed. \u2014 sec. 413.) It is admitted that the ancestor, Edmond Harris Beall, has a freehold. By the other requisite, the whole line of heirs in succession from generation to generation must take,- \u2014 that is, they must take as heirs and not as designated persons. The inquiry necessarily follows whether the testator intended that the remaindermen should take as heirs of the life tenant, or, originally, as the stock of a new inheritance. (Note on Rule in Shelley\u2019s case, 29 L. R. A. (n. s.) pp. 1012, 1013.)\nTo bring the rule into operation the word \u201cheirs,\u201d in its technical sense as importing a class of persons to take indefinitely in succession, or some equivalent expression, must be used in limiting the remainder. (Hanes v. Central Illinois Utilities Co. 262 Ill. 86; Note on Rule in Shelley\u2019s case, 29 L. R. A. (n. s.) pp. 1000, 1001.) The fact that a remainder to heirs is required excludes the application of the rule in a case where the remainder is to \u201cchildren,\u201d to take either as individuals or as a class, under what is termed as a descriptio persona, as distinguished from a limitation embracing the line of inheritable succession. The words \u201cchild\u201d and \u201cchildren\u201d are not technical legal terms to which' a fixed and determined meaning must be given regardless of the sense in which they are employed, but they are flexible and subject to construction, in order to give effect to the testator\u2019s intention. (Greenfield v. Lauritson, 306 Ill. 279; Connor v. Gardner, 230 id. 258.) The word \u201cchildren,\u201d however, aided by the context, may mean \u201cheirs.\u201d On the contrary, the word \u201cheirs,\u201d when restrained by the context, may have only the force of the word \u201cchildren,\u201d in which case the rule has no application. To accomplish this result there must be something on the face of the instrument to indicate with a sufficient degree of certainty that \u201cchildren\u201d is meant. (Stisser v. Stisser, 235 Ill. 207; Dick v. Ricker, 222 id. 413; Hanes v. Central Illinois Utilities Co. supra; 1 Hayes on Conveyancing, \u2014 5th ed. \u2014 sec. 543; Kales on Estates and Future Interests, \u2014 2d ed. \u2014 sec. 414.) Whether the second limitation is a remainder to the \u201cheirs\u201d as distinguished from \u201cchildren\u201d is purely a question of the construction of the instrument according to proper rules and principles of interpretation. Kales on Estates and Future Interests, (2d ed.) sec. 414.\nThe testator by the eleventh section of his will devised a life estate in the homestead to his son, Edmond Harris Beall. The section further provides that upon the latter\u2019s death the property shall \u201cvest in fee, in his children and grandchildren, share and share alike, if any there be.\u201d Neither the word \u201cheirs\u201d nor any equivalent is used in the eleventh section of the will. There is nothing in the section to indicate that the words \u201cchildren and grandchildren\u201d are to be understood in any other than their natural and ordinary meaning. The mere conjoint use of words indicative of only two degrees of consanguinity does not convey the idea of unlimited succession. The word \u201cchildren,\u201d when used instead of the word \u201cheirs,\u201d is a word of purchase and not of limitation. The use of the word \u201cchildren\u201d is the designation of persons to take originally in their own right, and in such a case the ancestor takes only a life estate and the children take the remainder by purchase. Baker v. Scott, supra; Beacroft v. Strawn, supra; Schaefer v. Schaefer, 141 Ill. 337; Chapin v. Crow, 147 id. 219; Hanes v. Central Illinois Utilities Co. supra.\nThe fact that the testator did not use the words \u201cchildren and grandchildren\u201d in the sense of comprehending the whole line of heirs in succession from generation to generation, but only the individuals who will answer the description of the life tenant\u2019s children and grandchildren at the time of his death, is shown by the provision that upon the death of the life tenant the fee to the property in question shall vest in his children and grandchildren, share and share alike. The use of the words \u201cshare and share alike,\u2019! or equivalent words, usually imports an intention to divide the property devised per capita unless other words in the will indicate that a division per stirpes is intended. (Kelley v. Vigas, 112 Ill. 242; Richards v. Miller, 62 id. 417.) A division among the children and grandchildren per capita shows that the testator did not intend that they should take as heirs of the life tenant.\nThe cardinal rule in the construction of wills is to ascertain the intention of the testator as expressed in his will and to give it effect unless he has attempted to dispose of his property contrary to some rule of law or public policy. (Brill v. Green, 316 Ill. 583; Blinn v. Gillett, 208 id. 473; Black v. Jones, 264 id. 548.) It is manifest that he intended an original taking of the remainder by the persons designated in their individual capacities and not in the character or quality of heirs. Hence the rule in Shelley\u2019s case has no application to the eleventh section of the will.\nThe decree of the circuit court of Madison county is reversed and the cause is remanded to that court, with directions to sustain the demurrer to the bill.\nReversed and remanded, with directions.", "type": "majority", "author": "Mr. Chief Justice DeYoung" } ], "attorneys": [ "E. J. VERLiB, guardian ad litem, for appellants.", "Henry S- Baker, for appellees." ], "corrections": "", "head_matter": "(No. 18405.\nCharles Leroy Beall et al. Appellees, vs. Edmond Lane Beall et al. Appellants.\nOpinion filed June 23, 1928.\nE. J. VERLiB, guardian ad litem, for appellants.\nHenry S- Baker, for appellees." }, "file_name": "0028-01", "first_page_order": 28, "last_page_order": 34 }