Woods v. Seymour (350 Ill. 493, 1932)

Mr. Justice Orr

delivered the opinion of the court:

This appeal comes from the circuit court of Morgan county, where in an ejectment suit a judgment was entered declaring that the right of possession of 200 acres of farm land was in Ona Woods, the appellee, in fee simple. The essential facts were stipulated and are as follows:

On December 24, 1902, Andrew J. Woods, then owning the real estate involved and being the common source of title through whom the appellants and appellee all claim, executed a certain deed in the following form:

“The grantors, Andrew J. Woods and Margaret E. Woods, his wife, for and in consideration of the natural love and affection which they have for their son, and for the further consideration of one ($1.00) dollar, in hand paid, convey and warrant to Newton E. Woods, of the county of Morgan and State of Illinois: [Description of land.]

“Reserving unto the said Andrew J. Woods and Margaret E. Woods, his wife, the sole use, control, benefit and income of all the premises and lands above described, during their natural lives. Said Newton E. Woods shall have full right and lawful authority to sell and convey all the lands above described at any time after the grantors’ death during his lifetime, but in case said Newton E. Woods should die without living children and without himself having disposed of and conveyed the lands, then all the lands remaining unsold shall revert to grantors’ estate, and be divided equally between their surviving children. The surviving child or children of any deceased son or daughter to receive the share the parent would have received if living.

“Situated in the county of Morgan in the State of Illinois.

“Hereby releasing and waiving all rights under and by virtue of the homestead exemption laws of this State.

“Dated this twenty-fourth day of December, A. D. 1902.

Andrew J. Woods, (Seal)

Margaret E. Woods. (Seal)”

The foregoing deed was acknowledged on the date it bears and was filed for record October 1, 1907. The mother, Margaret E. Woods, died on May 8, 1907, and the father, Andrew J. Woods, died intestate on January 14, 1918, leaving surviving him his son, Newton E. Woods, and his daughters, the appellants, Effie Seymour, Lillie Kimber, Ella Rogers and Lettie McConnell, as his only heirs-at-law. Newton E. did not in his lifetime, after the death of his father, sell and convey or dispose of the lands described in the deed, or any part thereof, and died in 1926 without living children surviving him, his only child, Byron, having died unmarried and without issue in 1921, more than five years before the death of his father, Newton E. By his will Newton E. gave and devised to his widow, Ona, the appellee, his entire estate.

In behalf of the appellants it is contended that the deed to Newton E. Woods conveyed a determinable fee to him, with an independent, limited power of sale, which was never exercised, and that on his death without surviving children the limitation over took effect and the title to the land vested in the appellants as the surviving children of the grantors. The appellee, however, asserts that the power of sale in the deed was a part and parcel of the estate conveyed to Newton E., and that since he could have conveyed an estate in fee simple under this power in his lifetime, the attempted limitation over to the appellants was void.

It is a fundamental rule in the construction of deeds that the intention of a grantor, as gathered from a consideration of the whole instrument, will be given effect where not contrary to some positive rule of law. Where words of inheritance are not used the entire context may be considered, and every word used must, if possible, be given weight in determining the estate granted. (Bear v. Millikin Trust Co. 336 Ill. 366; Kearney v. Kirkland, 279 id. 516.) Under the provisions of sections 9 and 13 of the Conveyance act (Smith’s Stat. 1931, chap. 30, pars. 8, 12, pp. 705, 706,) the deed in question conveyed a fee simple estate provided “a less estate be not limited by express words, or do not appear to have been granted, conveyed or devised by construction or operation of law.” If a less estate is limited by express words or appears to be granted by construction or operation of law a fee simple estate does not pass. Cutler v. Garber, 289 Ill. 200; Patterson v. McKay, 313 id. 491.

The language used in the deed before us leaves little room for doubt as to the grantors’ intentions. They first reserved a life estate to themselves during their natural lives. They then conferred upon their son full authority to sell and convey the lands at any time after their death, during his lifetime. This was a restricted power of alienation, as it did not give Newton E. Woods the power of disposition by will and limited his power of sale to the period “after the grantors’ death during his lifetime.” The grantors in the same sentence further provided, “but in case said Newton E. Woods should die without living children and without himself having disposed of and conveyed the lands, then all the lands remaining unsold shall revert to grantors’ estate, and be divided equally between their surviving children.” By this provision the grantors further restricted the fee by prescribing a limitation over in case Newton E. should die without living children and without having conveyed the lands. The language of the grant to Newton E. did not import an estate in fee simple, which is a pure inheritance, clear of any qualification or conditions, and must be given or granted generally, absolutely and simply. (2 Blackstone’s Com. 104; 4 Kent’s Com. 5.) By denying the right to dispose of the property by will the power of disposition was limited during the lifetime of Newton E. By also restricting the inheritance only to the living children of Newton E., rather than to his heirs generally, the fee was further limited. There was thus clearly expressed an intention on the part of the grantors that if their son did not convey all or any part of the lands deeded to him during his lifetime and left no children surviving him, such remainder of the lands unsold at the time of their son’s death should revert to the grantors’ estate and be divided equally among their blood relatives. This clearly expressed intention cannot be frustrated on the ground of repugnancy, for unless a fee is created with an unrestricted power of disposition, a subsequent clause conveying to others all property not disposed of in the lifetime of the first taker is not void for repugnancy. (Bohn v. Irvington, 303 Ill. 82.) A power of disposition, in order to defeat a base or determinable fee created by way of an executory devise, must be absolute and unlimited and such that it may be exercised not only during the lifetime of the devisee but also by will at his or her death. Defrees v. Drydon, 275 Ill. 530.

No question arises here concerning an executory devise, as this case involves a deed — not a will. In construing a deed the rule is that the nature and extent of the estate granted is to be determined, as a matter of law, from the instrument itself, and the intention of the grantor must be ascertained from the language used within the four corners of the instrument. (Harder v. Matthews, 309 Ill. 548.) Sections 9 and 13 of the Conveyance act must be read and construed together, and the words “if a less estate be not limited by express words,” found in section 13, must be applied to a deed drawn in accordance with- the form prescribed by section 9, where the only granting words are “convey and warrant.” (Bauman v. Stoller, 235 Ill. 480.) In the last cited case this court fully considered the effect of words of limitation inserted after the description of premises in a deed prepared in accordance with the statutory form prescribed by section 9 of the Conveyance act, in which the only granting words were “convey and warrant,” and there held that the grantor had reduced the grantee’s estate to less than a fee simple by using words following the description of real, estate which were a limitation upon the title, and, so holding, this court there said: “Manifestly, the purpose of the legislature in enacting section 13 was to require that every word used in' a conveyance, no matter in what part found, should be given weight in construing the instrument, where the party making the conveyance did not use words of grant or devise which at common law would have conveyed an-estate of inheritance. The doctrine by which words in some part of a deed following the premises, which apparently cut down or reduce the estate conveyed by the words of grant, shall be disregarded as repugnant to the words of conveyance, has no application where the granting words are not such as would at common law convey an estate of inheritance. * * * The phrase, ‘if a less estate be not limited by express words,’ found in section 13, must be applied to a deed drawn in accordance with section 9 where the only granting words are ‘convey and warrant.’ ” In construing this deed effect must be given to each word, clause or term employed by the parties, rejecting none as meaningless or surplusage. Cover v. James, 217 Ill. 309.

Upon execution and delivery of the deed, Newton E. Woods, the grantee, took title conditioned as follows: (a) Subject to life estate of the grantors; (b) without power of alienation during the existence of the life estate; (c) with power of alienation only during the period between the date of the grantors’ death and the death of Newton E. Woods; (d) without power to devise; (