Page images
PDF
EPUB

it

"die without issue” cannot be taken to mean before X's death, should be taken to mean before B's death.

E. M. L.

PROPERTY-ESTATES—CONTINGENT REMAINDERS AND CONTINGENT FUTURE INTERESTS.—The case of Hasemeier v. Welke 309 Ill. 460 recalls the distinction between contingent remainders and contingent future interests in a connection that reveals the distinction between them in a most forcible way. Occasion has been had, heretofore, to comment on cases where the distinction is made (Ill. L. Rev. XVI 631, XVII 329). That distinction apparently is that the contingent remainder is one that does not invoke the Statute of Uses to sustain it, whereas the contingent future interest is a creature of the Statute of Uses and of the invention responsible for that statute.

The inquiry to determine if a particular limitation is one of contingent remainder or one of contingent future interest thus depends at the very outset upon whether or not there is a gap or a lap in the devolution from the termination of the particular estate to the inception of the vesting of the remainder interest. It is, therefore, safe to say that if the interest which the particular estate gives is other than a life estate it cannot be a contingent remainder, but must operate, if at all, by way of contingent future interest, i. e., as a springing or shifting future interest. But it does not follow, it seems, that if the particular estate is a life estate, the limitation thereon, even if involved in contingency, is a contingent remainder. That, the cases seem to indicate, depends upon whether or not the limitation over is vested in interest at once, as if it is, then, even though it is subject to be divested before any enjoyment of it, it becomes a contingent future interest instead (İLL. L. Rev. XVI 383).

Another rule must be mentioned before taking up the consideration of the limitation in the principal case, and that is that a limitation will be construed as taking effect under the common law, if possible, even if the result is the extinction of the contingent remainder interest (Fuller v. Black 298 Ill. 353).

With that in mind, attention should be directed to the limitation in the case now under comment. It is in effect: X, testator, to his wife, A, to be used by her as long as she lives and at her death to be equally divided "among my children, or in case of their death, then to the heirs of their body.” Unless the provision by which the particular estate is expressed as "to A, to be used by her as long as she lives" gives an estate in fee simple determinable upon A's death, one would have here a full life estate. Similar estates have in fact been so construed (Ill. L. Rev. XVI 383), and with the effect to render the limitations thereon contingent interests, as it should be observed the limitation was not to any persons named, but to an indefinite class, viz., "my children."

On the other hand, if the children had been named, one would have a situation where the limitation was no longer to a class, but to individuals. The distinction is well voiced in the case of Hill v. Hill 264 Ill. 226, and Volunteers of America v. Peirce 267 Ill. 415, 416, in the former of which, however, within that distinction, the limitation was to a class and not to individuals, the latter of the two cases being one strictly of limitation to individuals. Examples of limitation to individuals under that rule appear also in McBride v. Clemons 294 Ill. 353, Stevens v. Van Brocklin 295 Ill. 441, Remmers v. Reminers 280 Ill. 95, and Hull v. Hull 286 Ill. 80. The principal case itself furnishes the case of Warrington v. Chester 294 Ill. 526, which is another example of that kind of limitation. In such cases, it would seem to be the rule that, unless there is other language qualifying the interest as not to vest at once (see the example suggested in Stevens v. Van Brocklin, X to A for life of herself and life of her husband, remainder to A if she survives her husband), the limitation to the individuals thus named vests at once and coeval with the life estate, subject, of course, to be divested at the termination of the life estate.

But the limitation in the case at bar is not of that type. On the contrary, the limitation there is to a class. That, however, does not determine whether or not the limitation to the members of the class vested in interest during the life estate. Whether or not it did depends, it would seem, upon some other rule; and that rule was stated in Brewick v. Anderson 267 Ill. 170 thus: “Where there is a devise to a class, as to children of the testator, and the gift is postponed pending the termination of a particular estate which intervenes between the death of the testator and the period of distribution of the estate devised to the class, those members of the class, and those only, take who are in existence at the arrival of the time for distribution.” Indeed, a New York case (Clark v. Clark 23 Misc. 281) points to the language "to be divided among," and draws from that the conclusion that if the direction so to divide is at a future time and there is no gift except in that direction so to divide, then the estate flowing from such direction to divide does not vest until that time arrives. And this would seem to be the sense of Potter v. Potter 306 Ill. 41, by its language: “The devise of the remainder being “to be equally divided between our living children or to their living heirs' indicates the intention to substitute the heirs of any child who may have died before the termination of the estate of the life tenant as a devisee in place of the child so dying.

In the rule above quoted from Brewick v. Anderson stress should be laid on the language, "and the gift is postponed.” Thus, wherever the gift was not postponed, the limitation vested at once, viz.: X to A for life, then to children and their heirs (Lynn v. Worthington 266 I11. 418, Thomas v. Thomas 247 111. 546) and that is true, notwithstanding the limitation thus vested may open up before enjoyment to let in others, as in X to A for life, then to B and children (Way v. Geiss 280 I11. 154, 157), and X to A for life, remainder in fee simple to the heirs of their bodies (Gibbs v. Andrews, 299 Ill. 511), and notwithstanding, it may be defeated altogether before any enjoyment of it by a further limitation upon condition, as in X to W for life, then to children of X, but if any children die without issue then to the survivors. (Lachenmyer v. Gehlbach 266 Ill. 13, 15).

Upon reference again to the case under comment, it must be evident that whether or not the limitation here is of a postponed gift depends upon what follows, for if the language following this limitation was one qualifying it in the sense that thereby the gift was not immediate in its terms (Drury v. Drury 271 Ill. 341), then the limitation was not vested. Examples where very similar language was held to be immediate in its terms appear in Weberpals v. Jenny 300 I11. 149, 157 (X, testator, to A during her life and at her death the reversion in fee to her children and if any die leaving children living at the death of A, such to receive the parent's share) and in Deem v. Miller 303 Ill. 242, 245 (X to A for life and upon death of A to be divided among his children), and of this type, it would seem, is the other authority cited in the principal case in support of the conclusion that the limitation in the principal case is vested, viz.: Boye v. Boye 300 Ill. 508 (X, testator, to wife for life and at her death to X's children, and in the event that any shall be dead at that time, leaving child or children, then such child or children to take their parent's portion). If the language of the limitation in the principal case had read: "and at her death to be equally divided among my children, but if any of them should be dead at that time, then to the heirs of their body," this would be a sufficient condition subsequent to render the gift immediate, subject only to be divested. If, on the other hand, the language had read: "and at her death to be equally divided among my children or, if any be dead at that time, then to the heirs of their body," it would be equally clear that the gift was not immediate in its terms and did not vest. It therefore becomes a matter of determining what is the effect of the alternative, viz. : to him or to them. It would seem to be no different than if the language had been “and in the event of their death, then to the heirs of their body” (the language used in Hill v. Hill 264 Ill. 220 and there held not to vest the interest at once), or if the language had been "and in case of their death,” as it was in Brewick v. Anderson, 267 Ill. 170.

If the limitation did not vest at once in the principal case, then it would be a contingent remainder and the rule of acceleration would have applied. (Northern Trust Co. v. Wheaton 249 Ill. 616; Fowler v. Samuel 257 Ill. 34; Sherman v. Flack 283 Ill. 460; Kern v. Kern 293 Ill. 250, 255.)

E. M. L.

BY

PROPERTY-ESTATES-FUTURE INTERESTS DEED-CON

-ConSTRUCTION—“DEATH" REFERABLE TO WHAT TIME?—Now comes a decision, Harder v. Matthews 309 Ill. 548, 141 N. E. 442, for which the bar of the state has been waiting a long time (Ill. L. Rev. VII 131, 132, XIV 151, 152, XIV 225, XIV 458), holding squarely that future shifting and springing interests can be created by deed in this state. The decision is to be welcomed because it

[ocr errors]

does settle the question, but it is submitted that its settlement of it raises some interesting problems that do not seem to be answered by it.

The limitation involved in the case was: X, grantor in a deed to A, her heirs and assigns, reserving a life estate in X, but if A should die without child or children or descendants of child or children, then over. The problem resulting from this limitation contemplated an estate for life in X, a remainder in fee in A, and then a shifting interest which was to operate to cut A's estate short upon the happening of A's death without child or children or descendants of child or children. Upon this it was the contention that such a shifting future interest could not be created by deed and was void, leaving A's fee unaffected by it. That was part of the problem. The other part was: When did this limitation contemplate that the happening of A's death with children, etc., was referable to, whether to the time of X's death (life tenant) or at any time (up to A's death)?

Upon the first phase of the problem, viz., whether a future shifting interest can be created by deed, the court starts with a proposition that our authorities must be conceded to have held that such an interest can be created where the deed is a statutory one, i. e., where it operates under section 13 of the Conveyancing Act. That section applies to wills as well as deeds and in words provides that words of inheritance are not necessary, and in the absence of any words of inheritance, it will be assumed that it was intended to give the fee (Bender v. Bender 292 Ill. 360, 361). This section of the statute introduces a rule of construction as to the intention of the grantor or devisor, as the case may be, and does not affect the technical rules relative to the passing of title to real estate further than to supply by implication words of inheritance. Section 9 of the same act would seem to have the same effect with the addition only that by force of that section a deed in the simple form there prescribed is given the same effect as a deed with full warranties.

In that aspect of the text of the sections of the Conveyancing Act relied upon, it is interesting to note the cases cited in the opinion of the principal case now under comment (309 Ill. 555). Starting with the earliest case, Riggin et al. v. Love et al. 72 Ill. 553, was limitation X, grantor, to A (no words of inheritance), to have and to hold to said A during her life, and at her death to B, her husband, "and in case of” the death of B before her, then to B's heirs at law. The case holds merely that the habendum clause might be resorted to to determine the intention of the parties as to whether A got a fee or a life estate, the rule of intention supplied by section 13 of the Conveyancing Act operating only in the absence of other words in the deed limiting a less estate. That case does not decide that the limitation over, if B should predecease A, was a valid future shifting interest. On the contrary, it says:

"He [B] could have no present estate in the property so long as his wife's life estate continued, and, dying intestate before her, invested with the remainder in fee simple, it would necessarily descend to his

[ocr errors]
[ocr errors]
[ocr errors]

.

heirs at law, just as well without, as with the use of these words in the deed."

The next case, in point of time, cited is Welch v. Welch 183 Ill. 237. There the limitation was: X to A (no words of inheritance), habendum to A for life, "remainder to the heirs of her body and their assigns forever.” Following the language in Riggin v. Love, the court says that inasmuch as no estate was mentioned in the granting part, the habendum might be resorted to, to fix the estate. It must be apparent that no question of future shifting or springing interest was involved. The next case, Stoller v. Doyle 257 III. 369, presented the limitation: X, grantor, to A (in statutory form of deed) without power to reconvey or mortgage and in case A dies before A's wife, with children surviving him, then to the surviving children and wife for the life of the wife, then to A's children if any are living, but if none survive A, then to revert to X. Of this the court says (p. 375):

“The future interest of the wife and children under that deed will take effect, if at all, in derogation of the estate of the grantee conveyed by the granting clause of the deed. Such a limitation could not be created by a deed at common law, but a deed of bargain and sale, such as the deed in this case, takes effect under the Statute of Uses and such a limitation is valid.

The deed operated as a conveyance of the fee with a limitation over, which may terminate the estate upon the conditions specified in the deed, and did not create a contingent remainder destructible by the act of the grantor in subsequently conveying the reversion to the grantee."

It results from this language that it was the opinion of the court that because the Statute of Uses was necessary to make this deed a valid one, the rules applicable in case of uses applied, and therefore a shifting future interest was good. But further than that the case does not go. Buck v. Garber 261 Ill. 378 presented the liimtation: X, grantor, to A (statutory form of deed) to A, habendum to X for life, then to A; if A die leaving no widow and no children, then to legal heirs of C; if A die leaving widow and no children, then one-half to widow and one-half to lawful heirs of C; if A die leaving widow and child or children, then to wife and children as law directs. The court says of this (p. 384): "The instrument was a present conveyance of a life estate to Henry Garber (A), with contingent remainders to his widow (if he should marry and leave a widow), to his unborn children and to the heirs of Frederick Buck (C)." Thus, this case throws no light upon the question other than to hold merely that here the habendum clause operated to define the estate granted, for the court expressly holds that the limitation (contingent remainder) was one at common law and not one under the Statute of Uses.

The last case in point of time, of those cited, is the case of Roberts v. Dazey 284 Ill. 244, and there the limitation was X, grantor, to A (statutory form of deed) subject to an annuity; and also if A die before twenty-one years of age, then over. A died

« PreviousContinue »