{ "id": 2548954, "name": "F. H. Henry et al. Appellees, vs. Sarah A. Henry et al. Appellants", "name_abbreviation": "Henry v. Henry", "decision_date": "1941-11-24", "docket_number": "No. 26464", "first_page": "581", "last_page": "595", "citations": [ { "type": "official", "cite": "378 Ill. 581" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "343 Ill. 90", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5255585 ], "opinion_index": 0, "case_paths": [ "/ill/343/0090-01" ] }, { "cite": "331 Ill. 213", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5210959 ], "opinion_index": 0, "case_paths": [ "/ill/331/0213-01" ] }, { "cite": "44 Ill. 363", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5222215 ], "opinion_index": 0, "case_paths": [ "/ill/44/0363-01" ] }, { "cite": "120 Atl. 653", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "94 N. J. Eq. 606", "category": "reporters:state", "reporter": "N.J. Eq.", "case_ids": [ 20795 ], "opinion_index": 0, "case_paths": [ "/nj-eq/94/0606-01" ] }, { "cite": "71 Atl. 933", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "104 Me. 333", "category": "reporters:state", "reporter": "Me.", "case_ids": [ 483349 ], "opinion_index": 0, "case_paths": [ "/me/104/0333-01" ] }, { "cite": "102 N. W. 433", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "126 Iowa, 511", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 8647908 ], "opinion_index": 0, "case_paths": [ "/iowa/126/0511-01" ] }, { "cite": "126 N. E. 886", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "100 Oh. St. 447", "category": "reporters:state", "reporter": "Ohio St.", "case_ids": [ 960173 ], "opinion_index": 0, "case_paths": [ "/ohio-st/100/0447-01" ] }, { "cite": "226 Ill. 46", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3327565 ], "opinion_index": 0, "case_paths": [ "/ill/226/0046-01" ] }, { "cite": "83 Pa. 59", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1050811 ], "opinion_index": 0, "case_paths": [ "/pa/83/0059-01" ] }, { "cite": "55 S. W. 1021", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "155 Mo. 314", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 461756 ], "opinion_index": 0, "case_paths": [ "/mo/155/0314-01" ] }, { "cite": "82 Mass. (16 Gray) 102", "category": "reporters:state", "reporter": "Mass.", "opinion_index": 0 }, { "cite": "37 N. J. Eq. 63", "category": "reporters:state", "reporter": "N.J. Eq.", "case_ids": [ 775688 ], "opinion_index": 0, "case_paths": [ "/nj-eq/37/0063-01" ] }, { "cite": "29 Atl. 750", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "162 Pa. 369", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 856761 ], "opinion_index": 0, "case_paths": [ "/pa/162/0369-01" ] }, { "cite": "278 Ill. 481", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4870503 ], "opinion_index": 0, "case_paths": [ "/ill/278/0481-01" ] }, { "cite": "62 Ill. 419", "category": "reporters:state", "reporter": "Ill.", "pin_cites": [ { "page": "p. 425" } ], "opinion_index": 1 }, { "cite": "44 Ill. 365", "category": "reporters:state", "reporter": "Ill.", "weight": 2, "pin_cites": [ { "page": "403" } ], "opinion_index": 1 }, { "cite": "94 N. J. Eq. 606", "category": "reporters:state", "reporter": "N.J. Eq.", "case_ids": [ 20795 ], "opinion_index": 1, "case_paths": [ "/nj-eq/94/0606-01" ] }, { "cite": "104 Me. 333", "category": "reporters:state", "reporter": "Me.", "case_ids": [ 483349 ], "opinion_index": 1, "case_paths": [ "/me/104/0333-01" ] }, { "cite": "226 Ill. 46", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3327565 ], "opinion_index": 1, "case_paths": [ "/ill/226/0046-01" ] }, { "cite": "155 Mo. 314", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 461756 ], "opinion_index": 1, "case_paths": [ "/mo/155/0314-01" ] }, { "cite": "82 Mass. (16 Gray) 102", "category": "reporters:state", "reporter": "Mass.", "opinion_index": 1 } ], "analysis": { "cardinality": 869, "char_count": 26043, "ocr_confidence": 0.784, "pagerank": { "raw": 1.3112524904001284e-07, "percentile": 0.6245412377323929 }, "sha256": "ac64a7a8765aafa7a7ff648414fbb4985e62731ddd51a9b47cbf4122cfbdb8c3", "simhash": "1:d22184ab0c66d56f", "word_count": 4675 }, "last_updated": "2023-07-14T21:19:47.428479+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "F. H. Henry et al. Appellees, vs. Sarah A. Henry et al. Appellants." ], "opinions": [ { "text": "Mr. Chief Justice Murphy\ndelivered the opinion of the court:\nThis appeal is from part of a decree entered in the circuit court of Wabash county in a suit to quiet title. A number of persons claim interests in the lands involved and some of them had, prior to the beginning of this suit, executed oil and gas leases covering their respective claims. The rights of the holders of such leases were determined in this litigation and certain defects and irregularities in the chain of title were removed as clouds, but the only part of the decree involved on this appeal pertains to the construction to be given the will of John L. Henry. A freehold is involved.\nAside from a direction as to the payment of debts, the will provides as follows: \u201cI leave and bequeath unto my beloved wife Sarah A. Henry all my estate, consisting of all property, both real and personal property, to have and to hold the same during her natural life and at her death, the residue, if any, shall be equally divided between my brothers and sisters and her heirs, in equal parts.\u201d\nThe testator died in 1892 leaving his wife, Sarah A. Henry, surviving. They had no children. When the testator. died he was seized of an undivided one-half interest in a tract of land referred to as tract number one, an undivided one-third interest in tract number two and the whole of the title to tract number three. His wife owned the other undivided interests in tracts one and two. The widow remarried and is now Sarah A. Mussett. She, her husband and their two children are appellants. The testator had nine brothers and sisters living when the will was executed, all of whom survived him. All except his brother Charley died prior to the beginning of this suit. The descendants and representatives of the deceased brothers and sisters, with the surviving brother, forty-seven in all, are appellees.\nFor a better understanding of the issue presented, brief reference will be made to the matters adjudicated and from which no appeal has been prayed. Appellee Charles V. Henry filed a counterclaim and asked for a construction of the will declaring the devise to the brothers and sisters to be a contingent remainder. The court denied this prayer and decreed that the remainder to the brothers and sisters vested at the time of testator\u2019s death subject to the life estate. It was further adjudged that the heirs and representatives of the deceased brothers and sisters took per stirpes. No appeal has been taken from that part of the decree and counterclaimant Charles V. Henry has joined as an appellee.\nOn the hearing appellants contended that the will gave the widow the power to dispose of the entire estate and that such power could be exercised at any time before death. The court rejected such contention and no error is assigned on that ruling. Appellants further contended that the devise to Sarah A. Henry for life and then to her heirs, was within the rule in Shelley\u2019s case and that whatever the fractional interest might be, the same was, by operation of the rule vested in the life tenant in fee simple. The court adopted this view and no appeal is taken from that part of the decree.\nAppellants\u2019 third contention was that the devise of the remainder was to two classes, \u2014 one-half to testator\u2019s brothers and sisters, constituting one class, and the other one-half to the heirs of Sarah A. Henry, and that by the operation of the rule in Shelley\u2019s case this one-half was devised to appellant Sarah A. Mussett in fee simple. The legal effect of the decree is that it was a devise to ten persons, viz., the nine brothers and sisters of testator and Sarah A. Henry. The decree vested an undivided on\u00e9tenth interest in Charles V. Henry and eight-tenths in the heirs and representatives of the eight deceased brothers and sisters, they taking per stirpes. All of said interests were decreed to be subject to the life estate of the widow.' As to the remaining one-tenth it was decreed that the rule in Shelley\u2019s case should be applied and that such interest was thereby vested in Sarah A. Mussett in fee simple. The review on this appeal is limited to this part of the decree.\nAppellees contention is that since the words ' \u201cand her heirs,\u201d as here used, have a fixed meaning under the rule in Shelley\u2019s case, they can not be given any significance in determining the intent of the testator. To state their contention more pointedly, they say the question is not as to the quantity of the title the heirs of Sarah A. Henry would have taken but for the rule in Shelley\u2019s case, but the question is: What did she take under the rule in Shelley\u2019s case? They say the will should be construed and given effect as if it read \u201cthe residue, if any, shall be equally divided between my brothers and sisters and my wife Sarah A. Henry in equal parts.\u201d\nConsideration must first be given to the nature of the devise. Was it a devise to individuals, as the chancellor held, .or was it a devise to two groups, one of them constituting a class? The devise to the testator\u2019s brothers and sisters was construed by the trial court as a vested remainder. There being no appeal from that part of the decree, we need not consider it further and will refer to their part of the devise as one to a group, merely to distinguish it from the devise to the heirs of Sarah A. Henry.\nDisregarding the application of the rule in Shelley\u2019s case,- which will be hereinafter discussed, the words \u201cand her heirs\u201d as used in this will referred to a class of persons, \u2014 that is, to the heirs of Sarah A. Henry. While living she has no heirs and who her heirs will be can not be determined until her death. The class is uncertain as to the number that will constitute it and the amount that each will take can not be fixed until the number in the class has been determined.\nIn Blackstone v. Althouse, 278 Ill. 481, it was said: \u201cA class, in its ordinary acceptation, is a number or body of persons with common characteristics or in like circumstances or having some common attribute, and, as applied to a devise, it is generally understood to mean a number of persons who stand in the same relation to each other or to the testator.\u201d The definition of such a devise in Jarman on Wills (vol. 1, 6th ed. 232) which has been generally approved, is as follows: \u201cA gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, and who are all to take in equal or in some other proportions, the share of each being dependent for its amount upon the ultimate number of persons.\u201d The part of the remainder attempted to be devised to the heirs of Sarah A. Henry was a gift to a class.\nIt is obvious the testator intended a division of the remainder between two groups and that the element of relationship to him or his wife was the basis for such division. He desired to divide his property between his brothers and sisters as one group and his wife\u2019s heirs as the other. In expressing his intent he directed that the remainder should \u201cbe equally divided between my brothers and sisters and her heirs, in equal parts.\u201d In construing this will and giving effect to the testator\u2019s intention, the words used should be given their ordinary meaning. The word \u201cbetween\u201d used in the sense employed in this will has been given a meaning in many cases that has virtually made it the key word to a determination of the testator\u2019s intent.\nIn Ihrie\u2019s Estate, 162 Pa. 369, 29 Atl. 750, the court said: \u201cThe testator wrote: \u2018The residue of my estate is to be divided between my husband\u2019s grandchildren and the children of Ferdinand Poree.\u2019 * * * The word \u2018between\u2019 refers properly to two, and not more. It is true that it is not infrequently used, especially by the uneducated, and colloquially, in the sense of \u2018among\u2019 as referring to more than two objects. But that, admittedly, is not its correct use. * * * On a general view of the whole will we see no ground on which to give the word \u2018between\u2019 any other than its proper meaning; and according to that the grandchildren of General Ihrie are one class, taking half, and the children of Ferdinand Poree are another class, taking the other half, of the residuary estate.\u201d\nIn Stoutenburgh v. Moore, 37 N. J. Eq. 63, the clause construed was: \u201cAll the residue of my estate, real, personal, and mixed, I give, devise, and bequeath the income to my two sons Robert and Edward, to be equally divided between them during their lives, and at their death, to be equally divided between my grandchildren, to them, their heirs and assigns.\u201d The court held that the residue going to the grandchildren went in classes and the grandchildren took per stirpes and not per capita, saying \u201cThe language is, \u2018and at their death to be equally divided between (not among) my grandchildren.\u2019 The word \u2018between\u2019 is commonly used in reference to two only, and there is some evidence in the use of the word here of the intention to divide between two families of children.\u201d '\nIn Holbrook v. Harrington, 82 Mass. (16 Gray) 102, the clause to be construed was: \u201cTo be equally divided between the heirs of my late husband and the heirs of my brothers and sisters.\u201d It was held this gave one-half to the heirs of her husband and the other half to the heirs of her brothers and sisters.\nIn Records v. Field, 155 Mo. 314, 55 S. W. 1021, the clause in question was: \u201cThe balance of my property and money I want equally divided between the heirs of W. and J. deceased.\u201d W. and J. were brothers of the testator, both deceased at the date of the will. Three children and four grandchildren of W. and two children of J. were living at the date of the will and survived the testator. It was held that they took per stirpes, and not per capita, and that the estate was divided in equal parts to be distributed among the heirs of these two people.\nA leading case is Young\u2019s Appeal, 83 Pa. 59. The clause to be construed was: \u201cI will the residue of my estate, real, personal, and mixed, to my beloved wife Alcy, for and during her life; and, further, I will that at her decease, such moneys or property as she may possess be equally divided between her relations and mine, or such of them as she may believe most worthy.\u201d The court said: \u201cWhat then does the language of this will indicate to be the intention of the testator? After the expiration of the life estate of his wife, he directs the property to \u2018be equally divided between her relations and mine.\u2019 He and his wife were childless. There was no issue of either to whom the property could be transmitted. It may have been the joint product of their industry and economy. This or some other moving cause prompted him to direct that the property be \u2018equally divided\u2019 between families of different blood. The language clearly points to one general division \u2014 one separation of the fund. Two classes were in his mind. One class was his relations; the other class was his wife\u2019s relations. The property was to be equally divided \u2018between\u2019 these two classes, and each class to take one half \u2014 his relations one half; his wife\u2019s relations the other half. Neither the language nor the spirit of the will indicates that each relation should have an equal share. To reach such a result would require all the relations of each, the testator and his wife, to be thrown together in one class, regardless of their relative number. So, if the wife had twenty and the testator two, her relations would take ten times as much as his relations. That would be a most manifest disregard of the direction for an equal division between the two families.\u201d\nIn Mosier v. Bowser, 226 Ill. 46, the will, after devising a life estate in personal and real property to the wife provided : \u201cThe property belonging to my estate at the death of my dear wife, * * * I direct and order that it, or the proceed thereof, shall be equally divided between my and my dear wife\u2019s relations according to their heirship. The heirship not to descend further than to and include grandnephews and nieces.\u201d Another provision in the will was that the \u201cproceed of said sale or sales * * * divide equally between my and her relation according to their heirship.\u201d It was held that after the life estate of the widow terminated, the remainder was to be divided one-half to the heirs-at-law of the testator and one-half to the heirs-at-law of the widow, excluding certain distant blood relatives. Other cases involving similar provisions in wills where the same conclusion was reached, are Godfrey v. Epple, 100 Oh. St. 447, 126 N. E. 886, Knutson v. Bidders, 126 Iowa, 511, 102 N. W. 433, Ruggles Estate, 104 Me. 333, 71 Atl. 933, and Rowley v. Currie, 94 N. J. Eq. 606, 120 Atl. 653.\nAppellees cite many cases from this and other jurisdictions where the word \u201cbetween\u201d was considered to have been used by the testator in the sense of a division \u201camong\u201d a number of persons rather than a division between, two groups or two objects. These cases are evidently controlled by a difference in the relationship of the two classes to the testator or by something else in the context of the will indicating an intent to make a gift per capita and not per stirpes. Appellees rely upon Pitney v. Brozan, 44 Ill. 363, where the division was directed to be between the children of a deceased brother of testator and a brother-in-law. The rule of construction found in Jarman on Wills, was followed, \u2014 i.e., when a legacy is to the children of several persons, they take per capita and not per stirpes. It is there stated that same rule applies when a bequest is made to a person, described as standing in a certain relation to the testator, and to the children of another person standing in the same relation. The will in this case is distinguishable from the facts upon which the author predicated the rule which the court followed in the Brown case. Here the relationship of the brothers and sisters to the testator is quite different from the relationship of the wife\u2019s heirs to the testator, and it would be assumed that such devises would be moved by entirely different considerations.\nIn Carlin v. Helm, 331 Ill. 213, the will directed that after the termination of the wife\u2019s life estate all the property should be divided \u201cbetween\u201d the lawful heirs of the testator. It was said that it is contended that the second paragraph, bequeathing all property to \u201cmy lawful heirs * * * to be equally divided between them\u201d implies a division involving only two legatees and that had a different division been intended the direction should have been to divide among. The court said: \u201cThat is true, but it is conceded that, as in the case of punctuation, the use of the word \u2018between\u2019 is not of itself final and conclusive as to the meaning of the testator. The concession is well made. The entire will evinces the testator\u2019s intention to have each of the four persons take an equal part. They are entitled to have it divided in equal parts among them, quantity and quality considered.\u201d This case is not controlling. The other cases cited and relied upon by appellees are readily distinguishable from the will at bar.\nUnder the authorities cited, we are of the opinion that if it were not for the application of the rule in Shelley\u2019s case the will should be construed as evidencing an intent to divide the remainder in equal parts, one-half to testator\u2019s brothers and sisters and the other one-half to a class designated as the heirs of Sarah A. Henry.\nThe contention made by appellants in reference to the application of the rule in Shelley\u2019s case raises the question as to whether any consideration shall be given to the intent of the testator as to the quantity of the estate intended to be devised to the heirs of his wife. In other words: Does the application of the rule in Shelley\u2019s case override the testator\u2019s intent as to the -fractional part of the remainder he intended to devise to the heirs of his wife? It is well settled that the rule in Shelley\u2019s case is a rule of property and that it will, under proper circumstances, be applied notwithstanding it violates the manifest intention of the testator. Havely v. Comerford, 343 Ill. 90.\nNotwithstanding the courts of this State have adopted the rule in Shelley\u2019s case and declared that is so even though its application overrides the intent of the devisor, we do not believe it has been applied to the overriding of the testator\u2019s intent to the extent contended for by appellees. The intent of the testator which the application of the rule in Shelley\u2019s case overrides is as to the character of the estate given to the ancestor and his heirs. Its application takes the estate intended to be devised to the heirs and vests it in the ancestor. In the many cases cited in the briefs, and others we have examined, its application has always been limited to a changing of the estate intended to be devised to the heirs of the testator. The application of the rule does not have the effect of overriding the testator\u2019s intention as to the quantity of title intended to be devised to the heirs. If a testator in a will directs that the heirs of the first taker are to have a fractional part of the title of which he was seized, the application of the rule does not operate to override the intention of the testator and reduce the fractional part of the title from that intended to be given to a lesser amount. If appellees\u2019 theory was sustained, the direct effect of the application of the rule would be to take four-tenths of the title which we believe testator intended to devise to the heirs of his wife and vest it in his brothers and sisters. Its application is limited to a transfer of the interest given to the heirs of the ancestor, the first taker, by vesting the whole of the devise in the ancestor in fee simple.\nOur conclusion is that the testator intended to devise one-half of the remainder to the heirs of Sarah A. Henry, now Mussett, and, by operation of the rule in Shelley\u2019s case, that one-half is now vested in fee simple in Sarah A. Mus-sett, and that the remaining one-half is vested in Charles B. Henry, and the heirs and representatives of the testator\u2019s deceased brothers and sisters, they taking per stirpes.\nFor the reasons assigned, that part of the decree limited by the appeal is reversed and the cause remanded, with directions to enter a decree in accordance with the views expressed.\nReversed and remanded, with directions.", "type": "majority", "author": "Mr. Chief Justice Murphy" }, { "text": "Mr. Justice Farthing,\ndissenting:\nFor the following reasons I must dissent from the opinion of the majority of the court in this case.\nThe nine brothers and sisters of the testator do not fit the definition of a devise to a class quoted from Jarman on page 585 of the opinion, as all nine were living when the will was made and survived the testator.\nIn re Ihrie\u2019s Estate (Pa.) and Stontenburgh v. Moore (N. J.) the word \u201cbetween\u201d was given its strict meaning, but this is not the rule in Illinois. Here \u201cbetween\u201d when used in a will has been often interpreted to mean \u201camong\u201d when applied fo more than two persons. See Pitney v. Brown, 44 Ill. 365; McCartney v. Ozburn, 118 id. 403; Carlin v. Helm, 331 id. 213.\nWhere a question has been repeatedly adjudicated in this State we will look to its decisions rather than those of another State. . Every party to this cause now concedes that (1) the devises vested at testator\u2019s death and (2) the rule in Shelley\u2019s case operated at testator\u2019s death to vest in Sarah A. Henry (now Mussett) the fee to an undivided interest.\nIn Young\u2019s Appeal (Pa.) the words were to \u201cher relations and mine;\u201d in Mosier v. Bowser (Ill.) they were \u201cmy and my dear wife\u2019s relations;\u201d in Godfrey v. Eppel (Ohio) they were \u201cmy and my wife\u2019s nearest kin;\u201d in Knutson v. Vidders (Iowa) they were \u201cour lawful heirs on both sides;\u201d in Ruggles Bstate (Me.) they were \u201cmy heirs and the heirs of my late husband.\u201d\nTo the same effect are the following cases cited in the brief of appellants but not in the majority opinion: Tucker v. Nugent, 104 Me. 333, where the words were \u201cmy heirs and the heirs of the said Matthew Dagnan\u201d- (who was the husband of testatrix) and Laisure v. Richards, 103 N. E. (Ind.) 679, where the words were \u201cmy nearest blood relatives and the nearest blood relatives of my wife.\u201d\nThese cases are not controlling here and there is no analogy. There is a different reason for these decisions as it is clear in them that the testator meant two classes. The classes were exactfy alike and the testator did not know when he wrote the will who if anyone would compose either class. Testator Henry in this case knew his nine brothers and sisters when he wrote his will.\nAlthough the opinion also cites Rowley v. Currie, 94 N. J. Eq. 606, at page 588 of the opinion as a case of \u201csimilar provisions in wills where the same conclusion was reached\u201d that case does not have testamentary provisions similar to the other cases in this group cited in the opinion and does not reach the same conclusion as those cases. The testamentary words in the Rowley case were \u201cto be equally divided, share and share alike, among each of my heirs as would have taken under the laws had I died intestate, and also to Mrs. R. and her children,\u201d and the holding was that each heir took one share and each member of Mrs. R.\u2019s family took one share \u2014 that all took per capita and that it was not a devise to two classes and the reason the court gave was there was no other provision in the will expressing any intention to devise to two classes.\nThe opinion admits on page 589 that some of the cases where \u201cbetween\u201d is held to mean \u201camong\u201d are controlled by the fact that there is a difference in the relationship between the testator and the members of the two classes. That is this case because testator\u2019s brothers and sisters were all living people in 1891 when the will was made and in 1892 when he died, and they are the people to whom he devised a 9/ioths interest in his land in fee (by operation of the rule in Shelley\u2019s case) subject to a life estate in his widow, just the same as if he had set out their respective names. The other devisees were whoever would turn out to be his wife\u2019s heirs \u2014 people not necessarily in being, uncertain in number, to be ascertained in the future and coming within Jarman\u2019s definition of a class, and furthermore they were total strangers in blood to the testator.\nThe rule in Illinois is that when the words \u201cequally,\u201d \u201cto be equally divided,\u201d \u201cshare and share alike,\u201d or \u201cin equal parts\u201d or equivalent words are used in a will, they import an intention to divide the property per capita. That is the construction to be given unless other words are contained in the will which indicate a division per stirpes is intended. Richards v. Miller, 62 Ill. 419, at p. 425; Dollander v. Dhaemers, 297 id. 276, at p. 278; Beall v. Beall, 331 id. 28, at p. 34; and Carlin v. Helm, 331 id. 213.\nAs the trial court said there is not even a faint indication in the Henry will that the distribution. was to be per stirpes. There certainly is no such indication in the punctuation used by the testator but on the other hand it indicates the division to be per capita as it is pointed out that the will reads \u201cshall be equally divided between my brothers and sisters and her heirs, in equal parts,\u201d and there is no break by a comma or any other punctuation after the word \u201csisters\u201d but there is a comma after the word \u201cheirs.\u201d\nThe opinion adopted apparently has this rule reversed and goes on the assumption that a devise goes per stirpes unless there is something in the context to indicate that it goes per capita. The rule is the other way around. Almost without exception it has been held that equally between the \u201crelatives,\u201d \u201cheirs,\u201d or \u201cnext of kin\u201d of the testator and of the husband or wife of the testator, connotes a division into two classes: \u2014 one-half to each class. Such is the case of Mosier v. Bowser, 226 Ill. 46, and most all of the cases cited by the court on pages 4, 5, and a part of page 6 of the opinion, including Holbrook v. Harrington, 82 Mass. (16 Gray) 102, and Records v. Field, 155 Mo. 314, where the devise was to the \u201cheirs\u201d of one person and the \u201cheirs\u201d of another or the classes were of the same kinship.\nThis case should not be confused with those cases nor should it be confused with cases containing questions of per stirpes and per capita as applied to contingent remainders. Henry made no provision in his will for descendants of such of his brothers and sisters who might predecease him. They were all living when he made the will and they are the same brothers and sisters who outlived him one year later when he died. They were all of the same kinship to him so that what they took was undoubtedly per capita as to them.\nThe widow cannot have the rule in Shelley\u2019s case apply half way or apply one moment and not apply the next. By its application at the death of testator there is eliminated from this case the question as to the manner in which her heirs would take if they had taken, because they did not take.\nThere is no more reason to interpret this will as making provision for two classes than there is to interpret it as making provision for three classes. Nothing in the will indicates that the testator intended to create two classes, viz., (i) his brothers and sisters and (2) whoever his wife\u2019s heirs should turn out to be. Nothing in the will indicates that he intended to create three classes, viz., (1) his brothers, (2) his sisters, and (3) whoever his wife\u2019s heirs should turn out to be.\nTo hold with the opinion it is necessary to ignore the punctuation of the will, the ordinary meaning in wills of the words \u201cin equal parts\u201d and \u201cequally divided\u201d and to arbitrarily read into the will an unexpressed intention of the testator.", "type": "dissent", "author": "Mr. Justice Farthing," } ], "attorneys": [ "Keen, Pearce & Pearce, Keener & Harris, and S. PiERRE RobinEau, for appellants.", "P. J. Kolb, A. M. Woodeord, Walter F. Kolb, and Valmore Parker, for appellees." ], "corrections": "", "head_matter": "(No. 26464.\nF. H. Henry et al. Appellees, vs. Sarah A. Henry et al. Appellants.\nOpinion filed Nov. 24, 1941\nRehearing denied January 15, 1942.\nFarthing, J., dissenting.\nKeen, Pearce & Pearce, Keener & Harris, and S. PiERRE RobinEau, for appellants.\nP. J. Kolb, A. M. Woodeord, Walter F. Kolb, and Valmore Parker, for appellees." }, "file_name": "0581-01", "first_page_order": 581, "last_page_order": 595 }