Wolfer v. Hemmer

Citations

• 144 Ill. 554
• 33 N.E. 751

Syllabus

<p>1. Wills — devise in fee—devise over, void. A testator, by the first clause of his will, devised and bequeathed to his wife, “her heirs and assigns,” certain city lots, and by the second clause bequeathed to her all his remaining estate, both real and personal, to be by her used and disposed of during her natural life, the same as he might do if living, and gave her “ full power to sell, mortgage, - exchange, invest and reinvest the same in the same manner I (the testator) might do if living, and to distribute the same by gift or otherwise among my children at any time during her life as to her shall seem meet and proper, and to appoint the same among my children by will after her decease according to her own judgment and discretion.” The will then provided that if any of the testator’s estate, real or personal, should remain undisposed of by his wife at the time of her decease, then he gave and devised all such residue and remainder of his estate to be equally divided among his children then living, etc.: Held, that the wife took an estate in fee in the lands, and that the devise over was void, however clearly it was expressed.</p> <p>2. If there be an absolute power of disposition given by a will to the first taker, as if an estate be devised to A. in fee, and, if he dies possessed of the property without lawful issue, the remainder over to the heirs of the testator, the devise of the remainder over is void, because of the preceding fee; it is void by way of executory devise, because the limitation is inconsistent with the absolute estate or power of disposition expressly given, or necessarily implied by the will. A valid executory devise can not subsist under an absolute power of disposition in the first taker.</p> <p>3. When the first devisee has the absolute right to dispose of the property in his unlimited discretion, and not a mere power of appointment among certain specified persons or classes, an estate over is void as being inconsistent with the first g