In my judgment the language used by the testator affords no basis for the construction adopted in the foregoing opinion nor for the rules of law applied therein. The opinion seeks to justify the conclusion reached by applying the well known presumption that the testator did not intend to die intestate as to any of his property. But such presumptions are not usually resorted to in cases where, as in this case, the testator, or his attorney or other person who drew the will, through ignorance of the law made an ineffectual attempt to dispose of the fee. Here the testator provided that if appellant "should decease before coming into the possession of said farm, then in that case I do hereby give and bequeath said farm to my oldest grandson or great-grandson, in fee simple, to him and to his heirs forever." Whether this attempt to convey the fee failed or not, it is at least an expression of an intent altogether *Page 440 contrary to the result reached in the opinion, and when this clause is read in connection with the preceding clause of the will, providing that after the death of his parents, "the use, rents, and possession of the same farm * * * shall descend to their son William Henry Churchill Junior which he shall have, use and possess under the same circumstances with regard to paying taxes, keeping up fences, buildings and restoring fences and buildings when destroyed as are imposed upon the said William Henry and Matilda," etc., it makes the intention of the testator all the more manifest not to give to appellant anything more than a life estate.
No violence is done to the conclusion that the testator intended to pass only a life estate to appellant by the fact that he was required to pay $1000 to his sister, Isadora. The will also required appellant's father and mother to pay a total of $1575 to certain persons, and yet it is not denied that they were only devised life estates. Surely the testator did not use almost the same restrictive language in these two devises and intend in one case to make the payments a charge upon the land and in the other a personal charge upon the devisee. If the testator had intended to convey a fee simple estate to appellant, it was strange that he should have restricted the gift with requirements to pay taxes and keep the fences and buildings in good repair. Such restrictive language is almost universally associated with devises of estates less than a fee.
Nor does it follow, as the opinion holds, that because a devise imposes a personal liability upon the devisee the latter will take a fee. True it is that this rule was so stated in the early case of Funk v. Eggleston, 92 Ill. 515, but this court modified the rule in Zimmer v. Sennott, 134 Ill. 505, by holding that under the circumstances the devisee takes the fee only in cases where there are no limitations upon the devise. And in Morrison v. Schorr, 197 Ill. 554, this court again stated that "where the devise imposes a personal *Page 441 liability on the devisee, the devisee will take the estate devised, as a purchaser and in fee, unless a less estate is limited." In the present case the devise to appellant was limited by requirements that he pay taxes, repair fences and buildings, etc., thus evidencing an intention of the testator to have the property preserved in good condition for some future beneficiary rather than an absolute and unlimited devise.
The rule that a devise of the rents, profits or income is a devise of the corpus of the estate will not be applied where its effect will be to defeat the testator's intention as expressed in the will. (Guerin v. Guerin, 270 Ill. 239.) It is not the function of section 13 of the Conveyance act to establish a rule of construction which would prevent consideration of all of the language in the will, and its only effect, so far as wills are concerned, is to make every devise of an interest in land a devise of a fee simple estate of inheritance unless otherwise limited by express words or appearing to be devised by construction or operation of law. (Drager v. McIntosh, 316 Ill. 460.) If from the will it appears that the testator intended that the estate should be less than a fee simple, it is wholly immaterial in what part of the will such intention is manifested. (Gahan v. Golden, 330 Ill. 624.) In the case of Pease v. Davis, 225 Ill. 408, commented and relied upon in support of the opinion, the devise to the nieces was absolute and unlimited. Such is not the condition in the present case, where, as above stated, certain conditions imposed upon appellant were wholly inconsistent with the conclusion that the testator intended to pass a fee simple title to him.
The judgment of the circuit court should have been affirmed.
Mr. JUSTICE DEYOUNG, also dissenting. *Page 442