Barco v. Harkleroad

Mr. Justice Thompson delivered the opinion of the court: Isaac Harkleroad died in 1881 seized in fee simple of 400 acres of land in Madison county. He was survived by his widow, two sons, William and Isaac H., a daughter, Florence Maud, and two grand-daughters, Annie B. Young and Ida Belle Nicholson, daughters of two deceased sons. By the sixth clause of his will as construed by this court in Young v. Harkleroad, 166 Ill. 318, he gave to his son William an estate for life in five-seventeenths of the 400 acres, and to his son Isaac, his daughter Florence and his granddaughter Annie each a life estate in four-seventeenths of said lands, with a remainder in fee to the heirs of their bodies surviving them, (excepting a son of Annie then living,) and in the event of the death of either of the life tenants without such heirs, the portion of such life tenant to go to the heirs of the other life tenants per capita. The reversion in fee which was not disposed of by the will, upon the death of the testator vested in the five heirs as tenants in common, subject to the life estates created by the will and to divestiture upon the vesting of the contingent remainders. Isaac H. died on March 29, 1893, leaving one son, Isaac J., who under the sixth clause of the will of his grandfather became the owner in fee of four-seventeenths of the 400-acre farm, and, as the heir of his father, of an undivided one-fifth interest in reversion in the remaining thirteen-seventeenths of the lands. March 7, 1894, Annie died, and Isaac J., being the only heir of any of the life tenants qualified to take under the sixth clause of the will, became seized in fee of the undivided four-seventeenths interest which she held for life. November 7, 1913, Isaac J., being seized in fee of an undivided eight-seventeenths interest in the 400-acre farm, had set off to him by a decree in a partition suit filed by him, 200 acres of the farm. The remaining 200 acres were allotted five-ninths to William for life and four-ninths to Florence for life, with remainder in fee to the heirs of their bodies, respectively, and, if either of them died without heirs of their bodies, to the heirs of the other life tenants named in clause 6 of the will of their father. December 9, 1913, Isaac J. was made defendant in an attachment suit instituted by W. E. Brooks, and under a judgment obtained by Brooks all of the interest of Isaac J. in the 400 acres of land was on May 9, 1914, purchased by Brooks at the sheriff’s sale. Harrison Barco, appellee, became the assignee of the judgment and certificate of levy, and in due course a deed dated August 30, 1915, was issued to him. It is conceded that Barco became seized of the fee to the 200 acres of land set off to Isaac J. in 1913, and so the title to those lands is not involved in this proceeding. January 29, 1922, William died leaving no heirs of his body. Isaac J., appellant, was the only contingent remainderman in existence qualified to take William’s five-ninths interest in the other 200 acres of the 400-acre farm. It is admitted that four-fifths of this interest passed to appellant, but appellee claims to be the owner of the other one-fifth interest by reason of his sheriff’s deed. He conveyed one-half • of this interest to his son, A. U. Barco, and filed his bill for partition. A decree was entered in accordance with the prayer of the bill, and Isaac J., one of the defendants below, appealed. When the attachment suit was filed appellant was the owner of an undivided one-fifth interest in the reversion in fee in the 200 acres of land set off to William and Florence for life, subject to being divested by the vesting of the one or the other of the alternate contingent remainders, and appellee became the owner of this interest under a sheriff’s deed. When William died he left no heirs of his body, and so his interest under the sixth clause of his father’s will passed to appellant, the only contingent remainderman in existence qualified to take. When the remainder in William’s five-ninths interest vested in appellant the interest in reversion in appellee was divested. The fact that appellee got his title to the one-fifth interest in reversion from Isaac J., the heir, and that his title was subsequently divested by the vesting of the contingent remainder in Isaac J., the contingent remainderman, does not make the title received by appellee of any greater or different value than if the heir and the contingent remainderman had been different persons. When the reversion in fee, which was owned by appellant, passed from him to appellee, appellant had no title to the lands. His only interest in the five-ninths of the lands involved was an expectancy, based upon the double contingency that his uncle, William, die without heirs of his body, and that he survive his uncle and be the only person living capable of taking under the sixth clause of his grandfather’s will. Both contingencies happened and he became the owner in fee of his uncle’s interest, and appellee, the owner of the reversion, lost his interest in the land. The decree of the circuit court is reversed and the cause is remanded, with directions to dismiss the bill for want of equity. Reversed, and remanded, with directions.