Handberry v. Doolittle

Citations

• 38 Ill. 202

Syllabus

<p>1. Wills—construction thereof—of a devise to a class of persons—rights of afterborn persons of that class. It is a well settled rule in the construction of wills, that where there is a devise to a class of persons, as to the children or issue of A, and the estate is to come into possession of the devisees immediately upon the death of the testator, those persons of the class who are in being at the death of the testator will take the devise, to the exclusion of those thereafter born.</p> <p>2. But if the will carves out a particular estate, which intervenes between the death of the testator and the period of distribution of the estate devised to the class, then all persons belonging to such class at the time when the estate is divided, are included, though born after the death of the testator.</p> <p>3. Same—application of the rule in this case. In this case the testator devised a certain portion of his estate to “ the children” of hi? brother Rawley, declaring, however, that Rawley “should have uncontrolled and absolute management and disposal of all such part of the estate his said children at the testator's decease should become entitled to, until the youngest of said children should become of full age, to use said means at his discretion, without having to account to any person or persons in court or courts whatsoever, as to his application thereof.” Held, that Rawley took a particular estate, which prevented the estate devised to his children from vesting in possession at the death of the testator, and thus let in, with the children of Rawley who were in being at the testator’s death, another child who was born afterwards.</p> <p>4. Same—the construction sustained from other provisions of the will. In the same will, the testator, in providing for the children of another brother, who was -then dead, devised to them by their proper names, instead of describing them merely as children of his brother, thus indicating an intention, in the case of his brother Rawl