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there was no want of necessary parties as to that feature of the bill. Hurd's Stat. 1913, c. 2, §§ 2, 18; Angelo v. Angelo, 146 Ill. 629, 35 N. E. 229. The demurrer should have been overruled.

Appeal from Circuit Court, Mason County; Guy R. Williams, Judge.

Bill by Oscar Blakeley and others against Henry Mansfield and others to construe a will and to quiet title. Decree for complain

The decree of the circuit court is reversed, ants, and the defendants appeal. Affirmed. and the cause remanded.

Reversed and remanded.

(274 Ill. 133)

BLAKELEY et al. v. MANSFIELD et al. (No. 10653.)

A. V. D. Rousseau, of Peoria, for appellants. Lyman Lacey, Jr., of Havana, for appellees.

COOKE, J. This is an appeal from a decree of the circuit court of Mason county construing the last will and testament of Henry Mansfield, Sr., and quieting title to

(Supreme Court of Illinois. June 22, 1916.) 1. WILLS 634(3)-CONSTRUCTION-CONTIN- certain lands in that county. GENT REMAINDERS.

A devise of land to a son for life and after his death to his children, if any survived him, in fee simple, created a contingent remainder' in the children.

Henry Mansfield, Sr., died testate May 29, 1893, leaving surviving him his widow and nine children. To each of the children he devised a life estate in certain real estate. [Ed. Note.-For other cases, see Wills, Cent. To his son Henry Mansfield, Jr., he devised Dig. §§ 1490, 1491; Dec. Dig. 634(3).] a life estate in considerable real estate sit2. WILLS 634(8)-CONSTRUCTION-CONTIN- uated in Mason county, about 300 acres of GENT REMAINDER "DIE WITHOUT ISSUE."

--

Under a will devising land to each of several children for life and after their death to go to their children, if any survived them, in fee simple, or on the death of any child before the taking effect of the will then to his children surviving or their descendants, on condition that, if any of testator's children should "die without issue," the land should be equally divided among their brothers and sisters or their descendants, the devise to the brothers and sisters or their descendants created a contingent remainder, as the words "die without issue" meant to die without issue surviving, and imported a definite failure of issue at the death of the life tenant, and as the word "issue" was used in the sense of "children."

[Ed. Note. For other cases, see Wills, Cent. Dig. § 1496; Dec. Dig. 634(8).

For other definitions, see Words and Phrases,
First and Second Series, Die Without Issue.]
3. WILLS 455, 470-CONSTRUCTION-MEAN-
ING OF Words.

In construing a will and in determining the
meaning to be given to the words "die without
issue," used in the disposition of a remainder, all
the provisions of the will must be looked into,
and, if possible, the meaning which the testator
intended to give such words should be applied.
[Ed. Note.-For other cases, see Wills, Cent.
Dig. 88 972, 973, 976, 988; Dec. Dig. 455,
470.]

4. WILLS

865(2)-CONTINGENT REMAINDER

-TITLE OF HEIRS.

Under a will devising a life estate to a son, with a contingent remainder over, the reversion in fee descended to the heirs at law pending the vesting of the remainder.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 2196; Dec. Dig. 865(2).] 5. REMAINDERS 10 - CONTINGENT REMAINDER-MERGER.

Where a life estate devised to testator's son, with contingent remainder over, was conveyed to complainants' ancestor, and thereafter the testator's heirs at law, having title to the reversion in fee pending the vesting of the remainder, conveyed their reversion to the complainants for the life of the life tenant, the life estate and the reversion in fee were combined in the complainants, destroying the life estate and defeating the contingent remainder.

[Ed. Note. For other cases, see Remainders, Cent. Dig. § 7; Dec. Dig.

10.]

Aft

which is the land involved in this suit.
er making the devises to his children in sepa-
rate clauses, Mansfield provided by the elev-
enth clause of his will as follows:

pressly provided that all the lands, tenements
"It is by this my last will and testament ex-
and real property hereinbefore specifically de-
vised to my said children, and each of them,
shall be had and held by them, and each of them,
to go and descend to their children, if any sur-
solely for their natural life and after their death
vive them, in fee simple, or in the event of the
death of any of my said children before the tak-
ing effect of this will, then to his or her or their
child or children surviving, or their descendants,
provided, however, should any of my said chil-
dren to whom such lands herein described are
given, die without issue, then such lands shall
be equally divided among their brothers and sis-
ters or their descendants."

On July 21, 1903, Henry Mansfield, Jr.,

sold about 300 acres of the lands devised to him in Mason county to Rufus Blakeley. At that time he had a divorced wife and three children, Margaret, Henry, and Elias B., living at Lincoln, Neb. Blakeley was advised that, if a guardian for these three children were appointed by the county court of Mason county, and that court, upon application, ordered a sale of the interests of the minors in this property, the purchaser at the sale, upon receiving a deed from Henry Mansfield, Jr., conveying his life estate, would acquire a perfect title. Pursuant to this advice a guardian for the minor children of Henry Mansfield, Jr., was appointed by the county court of Mason county, and an order procured for the sale of their interests in the 300 acres of land in question. Conveyances were made to Blakeley by the guardian and by Henry Mansfield, Jr., and in consideration thereof Blakeley paid off a mortgage of $3,000 on this land, paid Henry Mansfield, Jr., $7,868.88, and the guardian of the three minor children $6,531.12, which it is conceded was the full market value of the land at that time. Henry Mansfield, Jr., has since mar

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ried again, and two children, John and and the intestacy of Rufus Blakeley as to 20 Brasher, have been born to this union.

acres of said land became vested in the children of said Rufus Blakeley; that the contingent remainders in these lands in the children of Henry Mansueld, Jr., should any such survive him, and the contingent remainders in the brothers and sisters, or their descendants, of Henry Mansfield, Jr., were prematurely extinguished by the merger of the estate for life of Henry Mansfield, Jr., and the reversion in fee, by virtue of the conveyances from the heirs at law of Henry Mansfield, Sr., in the children of Rufus Blakeley. The title to the lands was accordingly quieted in the children of Fufus Blakeley according to their respective ownership.

This appeal has been perfected by the guardian ad litem of the three minor children of Henry Mansfield, Jr. The sole question presented for determination is whether the devise to the children of Henry Mansfield, Jr., should any survive him, and the devise to his brothers and sisters or their descendants, should he die without issue, created contingent remainders, and, if so, whether such contingent remainders have been destroyed by the conveyances from the heirs at law of Henry Mansfield, Sr., to the owners of the life estate devised to Henry Mansfield, Jr.

Rufus Blakeley died testate April 12, 1912. During his lifetime he conveyed to his daughter Edith Prettyman 140 acres, and to Edith Prettyman and her husband, Henry D. Prettyman, 40 acres of the land in question. By his last will and testament he devised 80 acres of this land to his daughter Daisy Hill and 20 acres to his son Walter Blakeley. As to the remaining 20 acres he died intestate and this portion of the land descended to his nine children. Shortly before his death he was informed that he held only an estate during the life of Henry Mansfield, Jr., in these lands. He was advised to secure deeds from the heirs at law of Henry Mansfield, Sr., who, he was told, owned the reversion in fee, and thus perfect his title. Before this could be accomplished Blakeley died, and his children have since procured deeds from the heirs at law of Henry Mansfield, Sr., to the lands in question, they deeding to Edith Prettyman and Henry D. Prettyman the lands conveyed to them by Rufus Blakeley, to Daisy Hill and Walter Blakeley the lands devised to them, respectively, and to all the children of Rufus Blakeley the 20 acres as to which he died intestate. These deeds recited that it was the purpose and desire of the grantors to convey to the grantees the rever[1-3] The devise to the children of Henry sion in fee to the premises conveyed and no Mansfield, Jr., clearly creates a contingent other interest whatever, so that the life es- remainder. Whether the devise to the brothers and sisters, or their descendants, of tate so held by the grantees under convey-ers and sisters, or their ances, devises, and inheritance from Rufus Henry Mansfield, Jr., creates a contingent Blakeley should merge in the reversion in remainder, depends upon the meaning to be fee and be extinguished and prematurely de- given to the words "die without issue," as stroyed, and that the grantees be vested at used in the eleventh clause in connection once with the legal estate in fee simple in the testator to mean die without children surwith the devise. If these words are used by possession, and that any contingent future viving, and are meant to import a definite interest be destroyed and held for naught. failure of issue at the time of the death of Two of the children of Henry Mansfield, Jr., the life tenant, then the devise to the by his first marriage, who have become of brothers and sisters, or their descendants, age, also executed conveyances to the chil- creates a contingent remainder. That this dren of Rufus Blakeley of the lands in ques- is the sense in which these words are used tion. After these conveyances had been se- seems to us to be apparent. In construcured the Blakeley children filed this bill in ing this will and determining the meanthe circuit court of Mason county to construe ing which should be given to the words "die the will of Henry Mansfield, Sr., and to quiet without issue," all the provisions of the will their title to these lands. The court found must be looked to, and, if possible, the meanthe issues for the complainants in the bill, ing which the testator intended to give these and decreed that the estate given by the will words should be applied. If, upon making of Henry Mansfield, Sr., in these lands at the such examination, it appears clearly from the death of Henry Mansfield, Jr., to the chil- entire will that the testator intended the limdren of Henry Mansfield, Jr., if any such itation over to take effect only in case Henry children should survive him, and the estate Mansfield, Jr., should die without issue surgiven by the will in said lands to the broth-viving him, that intention should be given efers and sisters, or their descendants, of fect. Stafford v. Read, 244 Ill. 138, 91 N. E. Henry Mansfield, Jr., in the event of his 91. In this same clause the testator pro death without issue him surviving, were each and all contingent remainders, and that the particular estate which supported said contingent remainders was the life estate vested by the will in Henry Mansfield, Jr.; that said life estate became vested in Rufus Blakeley by virtue of the deed of July 21,

vides that the lands devised to his children shall be held by them solely for their natural lives, and after their death to go to their children, if any survive them, or, in the event of the death of any of his children before the taking effect of the will, then to his or her or their child or children surviving,

vision that, should any of his children die without issue, then the lands devised shall be equally divided among their brothers and sisters or their descendants. It is clear when this whole clause is considered that the testator used the word "issue" in the sense of children, and that by this provision he meant that, should any of his children die without children surviving, then the lands devised should be divided among their brothers and sisters or their descendants. The remainders over, whether Henry Mansfield, Jr., died with or without issue, were contingent.

alike, then each child's share to the children of each in fee, or, if one left no child, to the children of the other, where both children survived their mother and had children and the son then died, his children took one-half in fee in equal parts; the daughter took a life estate in the other half, with contingent remainder to her children if surviving her; if not, to the son's children.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1440-1444; Dec. Dig. 622.] 2. PARTITION 12(5)-ESTATES SUBJECT TO

PARTITION-CONTINGENT REMAINDER.

sists of a life estate with contingent remainder, Where an undivided part of an estate consuch part is not subject to partition.

[Ed. Note.-For other cases, see Partition, Cent. Dig. §§ 41, 42, 47, 48, 50; Dec. Dig. 12(5).]

3. PARTITION 12(5)-ESTATES SUBJECT TO

PARTITION-CONTINGENT REMAINDER.

Where only part of an estate is subject to a contingent remainder, those having vested interests may have partition to set off their shares under the Partition Act.

[Ed. Note.-For other cases, see Partition, Cent. Dig. §§ 41, 42, 47, 48, 50; Dec. Dig. 12(5).]

4. PARTITION 12(5) PROCEEDINGS DEFENDANTS-POSSIBLE AFTER-BORN MEMBERS OF A CLASS.

[4, 5] It only remains, then, to determine the effect of the conveyances from the heirs at law of Henry Mansfield, Sr., to the grantees, devisees, and heirs at law of Rufus Blakeley. By the deed of July 21, 1903, Rufus Blakeley acquired the life estate of Henry Mansfield, Jr., and by conveyances, de vises, and inheritance the children of Rufus Blakeley succeeded to this life estate. In Bond v. Moore, 236 Ill. 576, 86 N. E. 386, 19 L. R. A. (N. S.) 540, it was held that, where a testator devised a life estate in lands to his sole heir at law, and the remainder limited to take effect upon the death of the life tenant is contingent, the reversion in fee descends to the heir at law pending the vest-setting off of that interest in partition, since the ing of the remainder, and that a conveyance of the life estate and of the reversion in fee to the same person will operate to destroy the life estate, which becomes merged in the fee, and to defeat the contingent remainder, which no longer has a particular estate to support it. To the same effect are Belding v. Parsons, 258 Ill. 422, 101 N. E. 570; Barr v. Gardner, 259 Ill. 256, 102 N. E. 287; Messer v. Baldwin, 262 Ill. 48, 104 N. E. 195; and Hill v. Hill, 264 Ill. 219, 106 N. E. 262.

Following the holding in Bond v. Moore, supra, the decree of the circuit court must be affirmed. There is no essential difference between that case and this. Here the testator devised a life estate to one of his sons, who conveyed the same to Blakeley, whose children, in turn, succeeded to his title. Thereafter the heirs at law of the testator, to whom had descended the reversion in fee pending the vesting of the remainder, conveyed said reversion to the then holders of the estate for the life of Henry Mansfield, Jr. The life estate and the reversion in fee were thus combined in the same persons, destroying the life estate and defeating the contingent remainder.

The fact that an undivided part of an estate is subject to a contingent remainder in a class of children of one yet living does ont prevent the

living children represent in such suit those who may later be born; the statute providing not be named in the bill shall be bound by the that those having uncertain interests who candecree.

[Ed. Note.-For other cases, see Partition, Cent. Dig. §§ 41, 42, 47, 48, 50; Dec. Dig. 12(5).]

5. PARITIONS 12(5) CONDITIONS PRECEDENT-CONSENT OF LIFE TENANT.

Partition Act (Hurd's Rev. St. 1915-16, c. 106) § 32, providing that in case of sale the court may, with the consent in writing of the person having a life estate, sell it with the rest, applies only where a person has a life estate in the whole or some definite part of the premises; and the consent of one having a life estate in merely an undivided interest, to a sale of the premises, is not necessary.

Cent. Dig. §8 41, 42, 47, 48, 50; Dec. Dig.
[Ed. Note. For other cases, see Partition,
12(5).]

6. PARTITION 111(1)

MAINDERS.

CONTINGENT RE

Where one half of an estate was vested, and the other half subject to a life estate with a contingent remainder, the premises were ordered sold in partition, one half the proceeds to be paid to the vested owners, and the other half invested by a trustee to pay the income to life tenant during life, and at her death to petition for directions as to distribution.

[Ed. Note.-For other cases, see Partition, Cent. Dig. §§ 401-407, 410, 411; Dec. Dig.

The decree of the circuit court is affirmed. 111(1).]
Decree affirmed.

(274 III. 107)

BETZ et al. v. FARLING et al. (No. 10337.) (Supreme Court of Illinois. June 22, 1916.)

1. WILLS 622 - CONSTRUCTION CONTINGENT REMAINDER.

Under a will devising to wife for life, then to son and daughter for life, share and share

Error to Circuit Court, Marshall County; T. N. Green, Judge.

Suit for partition by John Betz and another against Laura Farling and others. There was a decree ordering sale which was executed, and defendant Rebecca Lowden Scholes moved to vacate the decree and to set aside the sale, which motions were denied, and

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

said Scholes and others bring error. Affirmed.

Quinn & Quinn, of Peoria (Frank J. Quinn and Charles V. O'Hern, both of Peoria, of counsel), for plaintiff's in error. Fred W. Potter, of Henry, guardian ad litem. Barnes & Magoon, of Lacon (William J. Black, of Lacon, of counsel), for defendants in error.

CARTWRIGHT, J. May Lowden Betz, one of the four children of Henry B. Lowden, with her husband, John Betz, filed a bill in equity in the circuit court of Marshall county for partition of four tracts of land in which she claimed an interest under the will of her grandfather, William D. Lowden, and made the other three children, and all persons having any present or future interest, defendants. The adult defendants were defaulted, and a guardian ad litem was appointed for the infant defendants, and he filed an answer, to which a replication was filed. The cause was then referred to the master in chancery to take the evidence and report his conclusions of law and fact. The master made his report, and a decree was entered in accord with his conclusions, finding the interests of the parties and appointing commissioners to make partition. There was no question concerning a tract of 160 acres, the title of which was in the children of Henry B. Lowden; but their interest in the three remaining tracts was an undivided interest, and the chancellor by the decree found the interests of all the parties in those tracts. The commissioners reported that the three tracts which are in controversy were not susceptible of division without manifest prejudice to the parties in interest, and the court entered an order of sale, which was executed by the master in chancery. Upon the report of the sale being filed, Rebecca Lowden Scholes, one of the defendants who had been defaulted and who had been found to have a life estate in an undivided one-half of the three tracts, appeared and entered her motion to vacate the order and decree of sale; the material grounds of the motion being that she had not consented to a sale of her life estate and that the parties entitled to the fee in remainder after her life estate could not then be ascertained. The motion was denied. She also moved to set aside the sale and objected to the same, but her exceptions to the report of the sale were stricken from the files. A writ of error was sued out of this court by the defendants, Rebecca Lowden Scholes, George Scholes, Jay Scholes, Mrs. Jay Scholes, and Walter Scholes, who were interested in the undivided one-half of the three tracts.

[1] The tracts of land in question were owned by William D. Lowden, who died on January 19, 1873, leaving a last will and testament, by which he devised the same as fol

"I give and devise to my wife, Nancy H. Lowden [here follows a description of the three tracts in question, containing 76 acres, 20 acres, and 27 acres, respectively], to be used and enjoyed by her during the term of her natural life; give and devise the same to my son and daughand from and immediately after her decease I ter, Henry B. and Rebecca Lowden, share and share alike, in case both shall be living at the time of their mother's decease, and if one of my said children shall decease before its said mother, then the whole of the same to such sur

vivor in case the brother or sister deceased shall leave no issue of his or her body at the time of its said mother's death living, to be used and enjoyed by them (my said children) during the term of their natural lives, and from and immesame to the issue of their bodies, their heirs and diately after their decease I give and devise the assigns forever, and in case of failure of issue of the bodies of my said children, or either of state of Illinois, for the use of the inhabitants them, then to the county of Marshall, in the thereof, hereby meaning that a life estate in said lands after the decease of my said wife shall vest in my said children or the survivor, death that the same shall vest immediately in (the deceased being childless,) and after their fee simple in their children or the child or children of either, the other leaving no child, and that they shall succeed each other in the other's life estate upon the decease of one childless, and upon their decease leaving no child or children or descendants of such child or children then to said Marshall county, as aforesaid."

Nancy H. Lowden, who was given a life estate, was afterward married to Harmon J. The son, Henry Adams, and died in 1905. B. Lowden, and the daughter Rebecca Lowden, who was married to Walter Scholes, survived their mother. Henry B. Lowden died in 1907, and left a widow, Laura Lowden, since married to William Farling, and his children, the complainant May Lowden Leona Lowden, and Nancy Lowden, his heirs Betz and the defendants William B. Lowden and has two sons, George Scholes and Jay at law. Rebecca Lowden Scholes is living Scholes, both adults, and she is 56 years of

age.

The findings of the decree were that the four children of Henry B. Lowden were entitled to one-half of the premises in fee simple, in equal parts; that Rebecca Lowden Scholes was entitled to a life estate in the other half; and that her children who should be living at her death would be entitled to that half in equal parts. After these findings, however, the decree declared that the defendant Rebecca Lowden Scholes should be endowed of one full, equal one-third part of the undivided half; that the children of Henry B. Lowden should each be endowed of the full, equal one-fourth part of the undivided one-half; and that the defendants George Scholes and Jay Scholes, and any other children that might be living at the death of Rebecca Lowden Scholes, should be endowed of the undivided one-half of the tracts, subject to the life estate of their mother, Rebecca Lowden Scholes. There is a misuse of the word "endowed" in the decree, and an evident error in declaring that Rebecca Lowden Scholes should be endowed of one full,

half, as well as the declaration of any present estate in George Scholes and Jay Scholes. Other parts of the decree, however, show that these were errors, and that it was intended that Rebecca Lowden Scholes should have a life estate in the undivided one-half with a contingent remainder in that half to any children who might survive her, with the further qualification that if she leaves no children the remainder will vest in the children of Henry B. Lowden.

William D. Lowden by his will devised a life estate in the land to his wife, with a remainder for life to his son and daughter, contingent upon their surviving their mother. They did survive her, and thereupon their estates for life became vested. The estate of each was for his or her own life, and there was a several devise after the decease of either of them to the issue of their bodies, their heirs and assigns forever. On the death of either leaving issue, the remainder in his or her half would pass to such issue, and, in default of issue surviving, the land was devised to the county of Marshall. The will provided that the children should succeed each other in the other's life estate upon the decease of one childless, which was impossible, because upon the death of one the other could not succeed to a life estate which terminated by the life tenant's death. The testator undoubtedly meant that upon the decease of one childless the other should succeed to a life estate in the premises in which the deceased had a life estate. Henry B. Lowden having died leaving children, the undivided one-half of the lands became finally vested in them in fee simple, but it cannot now be known in whom the other half will finally vest. If Rebecca Lowden Scholes leaves children surviving her, it will vest in them. If she leaves no children, it will vest in the children of Henry B. Lowden. No interest in the land can vest in the county of Marshall, because the devise over to the county was to take effect only in case of the failure of issue of both the son and daughter, and, as Henry B. Lowden left surviving children, the happening of the condition is impossible. The widow, Laura Lowden Farling, has no interest, for the reason that her husband, Henry B. Lowden, was not seised of an estate of inheritance but only of a life estate. The undivided one-half of the land belongs to the children of Henry B. Lowden in fee simple, and Rebecca Lowden Scholes has a life estate in the other half and the remainder in that half is contingent.

[2, 3] The plaintiffs in error contend that the land is not subject to partition for the reason that the persons who will take the fee cannot be determined until after the death of Rebecca Lowden Scholes; and that is true as to the undivided one-half devised to Rebecca Lowden Scholes and the issue of her body surviving her. It cannot be determined until her death in whom the re

mainder after her life estate will vest, and the remainder in that half is contingent and not subject to partition. Seymour v. Bowles, 172 Ill. 521, 50 N. E. 122; Ruddell v. Wren, 208 Ill. 508, 70 N. E. 751; Richardson v. Van Gundy, 271 Ill. 476, 111 N. E. 494. ParV tition can only be made between cotenants or joint tenants, and one who would be presently entitled to an estate if a contingency should happen has only a possibility of an estate, and is not a tenant of any estate, either in possession or remainder. It is not true, however, that the remainder after the life estate of Henry B. Lowden, which is now finally vested in fee simple in the four children who survived him, is contingent in any sense and not capable of being separated from the undivided half in which the remainder is contingent. In the cases above cited the remainders in the whole estate were contingent, and partition could not be made which would finally determine the rights of any party nor the extent of the respective shares or interests, which is not the case here. Neither the existence of the life estate nor the fact that the fee is determinable on some future event will be an obstacle to a partition on the application of one in whom a remainder is vested and where the estate is of such a character that the court can determine the extent of the interest. Scoville v. Hilliard, 48 Ill. 453; Drake v. Merkle, 153 Ill. 318, 38 N. E. 654; Deadman v. Yantis, 230 Ill. 243, 82 N. E. 592, 120 Am. St. Rep. 291; Askins v. Merritt, 254 Ill. 92, 98 N. E. 256; Cummins v. Drake, 265 Ill. 111, 106 N. E. 456. The partition act contemplates that one having a vested interest may have partition so that his interest may be set off and be available to him, since it provides that every person who upon any contingency may be or become entitled to any beneficiary interest in the premises shall have his interest set forth, and where the share or interest is uncertain or contingent or the ownership or inheritance shall depend upon an executory devise or the remainder shall be contingent, so that the parties cannot be named, the same shall be stated in the bill, and, if partition cannot be made without manifest prejudice to the owners, a sale thereof shall be made and the proceeds be divided according to the respective rights of the parties. The children of Henry B. Lowden had an estate in fee simple in the undivided one half of the land not subject to any contingency and Rebecca Lowden Scholes had a vested estate for her life in the other undivided half, and both were estates in possession.

[4] The fact that other children may yet be born to Rebecca Lowden Scholes who will survive her and become entitled to a share of the portion in which she has a life estate did not prevent the setting off of that portion in which such after-born children might acquire an interest. The statute pro

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