dissenting:
In construing any written instrument, words ought to be given their ordinary meaning and the intention of the parties ought to be gathered from the language used by them. By the deed of 1873 the grantor conveys the fee to the grantees and then provides for the shifting of the fee upon the happening of a certain contingency. This leaves the fee of the several grantees base or determinable. As the fee is to shift “in case of the death of either of the above vendees before marriage and legitimate heirs,” the question is, To what time does death refer? Death in the lifetime of the grantor or death at any time? “Before” is a word denoting time, and means “prior to” or “preceding.” Prima facie, the language used by the grantor means death at any time. The grantor has definitely fixed the event on the happening of which the fee shall shift. The rule declared by this court for the first time in Lachenmyer v. Gehlbach, supra, which says that if a particular estate precedes a gift over, the latter will usually take effect if the contingency happens at any time during the period of the particular estate, and that in such a case “death without issue” means death before the death of the life tenant, unless the will shows the testator intended to refer to a later date than the termination of the life estate, is, of course, a rule of construction, and will not be applied where the language of the instrument being construed indicates that the maker of the instrument referred to death at any time, either before or after his own death. (Fulwiler v. McClun, 285 Ill. 174; Gavvin v. Carroll, 276 id. 478.) The object to be attained in construing an instrument is to give it the interpretation and meaning which the maker intended, and his intention will be carried out whenever it can be done without violating some established rule of law or public policy. All artificial rules of construction yield to the intention of the maker plainly expressed. (Fifer v. Allen, supra.) Notwithstanding the fact that a life estate precedes the gift over, the language here used by the grantor clearly indicates that he referred to a death before marriage, whether that death occurred before or after his own death. My views on this subject are set forth fully in a dissenting opinion in Harder v. Matthews, supra.
The language used in the deed is unusually confusing. The deed provides that all the lands shall vest in the surviving vendee or vendees where there is a death of one or more before marriage and legitimate heirs, (“heirs” must be construed to mean “children,”) but it makes no provision for the contingency which may happen in this case. One of the grantees is dead, but he left surviving him a widow and six children. If Frederick should die before he is married, will all of the lands pass to Charles, the surviving vendee, or will Frederick’s share only pass to Charles, or will his share pass to Charles and the heirs of Isaac? The grantor declares in his deed that the grantees are his legitimate heirs but does not declare that they are his only heirs, nor is there any evidence in the record to show that he did not leave surviving him other heirs who may make claim to a part or all of this land in the event Frederick remains unmarried and is the last survivor of the three grantees.
Appellants’ title may not be disturbed, but it is clear to me that it is a doubtful one and may subject the owner to expensive litigation in its defense. Under these circumstances I am of the opinion the chancellor properly denied specific performance.