Harrison v. Weatherby

Mr. Justice Magruder delivered the opinion of the court: This case comes up from an order of the court below sustaining a demurrer to the bill and dismissing it for want of equity. Therefore, as to the facts we are confined to the allegations of the bill. Both appellants, who were complainants below, and appellees, who were defendants below, claim title under one Richard Smith, who, in his lifetime, was a resident of Wake county in the State of North Carolina, and died testate in that State in the year 1852. A copy of his will, dated October 10,1851, is attached to the bill, and referred to therein as an exhibit. Richard Smith left surviving him a widow, named Penelope Smith, and one child only, a daughter named Mary A. Smith, his only heir-at-law. The widow is dead, and the daughter, who married one Morehead after the execution of the deed hereinafter mentioned, died on January 4,1891, leaving no issue, and without having had any child or children. Morehead is also dead. At the time of his death Richard Smith owned in fee thirty-five quarter sections of land situated in Adams,' Pike, Calhoun,. McDonoug'h, Schuyler, Fulton, Peoria, Stark, Knox, Warren, Henderson, Mercer and Henry counties in Illinois. On February 20, 1856, Penelope Smith and Mary A. Smith executed a warranty deed to one Silas T. Green of Richmond, Kentucky, conveying to him all the lands in Illinois, which Richard Smith owned at his death, describing them as “all those certain tracts of land situated in the military bounty land district in the State of Illinois.” The grantors in the deed are described as “Penelope Smith, widow, and Mary A. Smith, only child, together sole heirs of Richard Smith, deceased, late of Raleigh, North Carolina.” A copy of the deed is referred to in the bill and attached thereto as an exhibit. The deed contains no reference whatever to any will of Richard Smith, and no intimation that the grantors held as devisees, or otherwise than as heirs of a deceased intestate. The deed to Green was recorded in many of the counties where the lands are situated. After Green had conveyed away “most, if not aR, of said lands” he died in Kentucky where he lived, and left certain persons as his heirs, who are made defendants under the name of unknown owners. The appellees, defendants below, hold under Green, and claim that the deed, executed by Penelope Smith and Mary A. Smith to Silas T. Green in 1856, passed the title to the lands to Green, and that they, as holding under Green, are the owners of all of said lands. On the contrary, appellants claim that, under the will of Richard Smith, his daughter, Mary A. Smith, took an absolute title to only an undivided one-third part of all his lands, including those in Illinois, and had merely an interest as life tenant in the remaining undivided two-thirds of said lands. The appellants allege in their bill, that the fee of the said two-thirds remained in abeyance until the determination of the life estate of Mary A. Smith, and then descended to the heirs-at-law of Richard Smith, the testator, his brothers and sisters and their descendants, and vested in those, who survived Mary A. Smith at her death, and is now held by them as tenants in common. Appellants claim to be the heirs-at-law of Richard Smith, who were such at his daughter’s death in 1891, or to hold under or through such heirs-at-law. The contention of the appellants is, that the deed from Mrs, Smith and her daughter to Green conveyed to him the fee simple title to an undivided one-third of the lands, and the life estate of Mary A. Smith in the other undivided two-thirds thereof, but did not convey to him the fee of said two-thirds; that, since the death of Mary" A. Smith in 1891, and the termination thereby of her life estate, the grantees of Green, or those holding under him in any way, have no further interest in said two-thirds; and that the two-thirds of the lands are now owned by the appellants, as tenants in common with those holding the other third under the deed from Green. Upon the theory thus stated, that appellants are the owners of two-thirds and appellees of one-third of these lands, the present amended and supplemental bill was filed against appellees for partition on February 16,1898, more than seven years after the death of Mary A. Smith. The original bill appears to have been filed on January 3, 1898, but there is no copy of it in the record, and nothing to show what its contents were. There were two codicils to the will. The amended and supplemental bill, which was demurred to below and dismissed, alleges that the “will and codicils thereto were duly probated in the proper court for the probate of wills in said county of Wake, North Carolina.” But the certificates appended to the copy of the will, attached to the bill as. an exhibit leave it in doubt whether the proceedings for the probate of the will were taken in the county court for Wake county, or in the court of pleas and quarter sessions for that county. The bill further alleges that, during all the time from the execution of the deed to Green on February 20,1856, until the death of Mary A. Green on January 4, 1891, a period of nearly thirty-five years, Green, his grantees and assigns, remained and continued in the control and management of said lands; that neither the appellants, nor any of the heirs of Richard Smith, had any right of possession, or right of entry into or control over said lands until after the death of Mary A. Smith; and that, until that time, it was the duty of her g'rantees and those of Green to pay the taxes. The abstract of the record as filed here does not correctly set forth paragraph 7 of the bill. The abstract represents orators as showing, “that, soon after the death of said Richard Smith, said will and codicils of said Richard Smith, together with the probate thereof, were recorded in the several counties in the State of Illinois in which said lands respectively lie.” Paragraph 7, as found in the récord, is as follows: “Your orators further show unto your honors, that the said will of the said Richard Smith, deceased, together with the codicils thereto, were, soon after the death of the said Richard Smith, duly probated in the proper court for the probate of wills of Wake county, North Carolina, and a copy thereof, together with the probate, was duly recorded in the several counties in the State of Illinois in which said lands respectively lie.” Between 1849 and 1857 foreign wills and the probate of them could only be filed in Illinois in the office of thé county clerk. An act passed in 1857 authorized them to be filed in the office of the recorder of deeds. The foregoing allegation of the bill is technically inaccurate in averring merely, that the copy was recorded in the several counties, without stating whether it was so recorded in the county clerk’s office or in the recorder’s .office, and in omitting to state that the copy so recorded was an authenticated copy. First—If it be admitted for the present, that the construction placed by appellants upon the will of Richard Smith is the correct one, the first question, which arises, is whether the copy of the will and of the certificates appended thereto, as recorded in Illinois, had the effect of passing the title to the lands in the latter State. The claim of appellants to these lands, if valid, must be made out under and based upon the copies of the will as recorded in Illinois. If it were true, that the will gave Mary A. Smith nothing but a life estate in two-thirds of the lands, and that the fee of such two-thirds did not vest immediately upon the death of the testator, but remained in abeyance until the death of his daughter, and, at her death without issue, reverted to the next of kin. or heirs-at-law of the testator, was the will, with its probate and certificates, as recorded in Illinois, 'good and available in law for the granting of the fee of two-thirds of the Illinois lands to the. next of kin, or heirs-at-law of Richard Smith, who were alive at the time of his daughter’s death? The validity and construction, as well as the force and effect, of all instruments affecting the title to land, j depend upon the law of the State where the land is situated. This rule includes wills, as well as deeds, contracts or agreements; and it includes the form and mode of the execution of the will, as well as the power of the testator to make the devise or disposition of property contained in the will. (West v. Fitz, 109 Ill. 425; McCartney v. Osburn, 118 id. 403; City Ins. Co. of Providences. Commercial Bank of Bristol, 68 id. 348; Wunderle v. Wunderle, 144 id. 40; Ford v. Ford, 70 Wis. 44; Robertson v. Pickrell, 109 U. S. 608; McCormick v. Sullivant, 10 Wheat. 192; Darby v. Mayer, 10 id.465). Under the statute of this State, a will, in order to be entitled to probate, must be reduced to writing, and signed by the testator, and attested by two or more credible witnesses, two of whom shall declare that they saw the testator sign it in their presence, or acknowledge the same, and that they believe him to be of sound mind and memory. (Dickie v. Carter, 42 Ill. 376; Crowley v. Crowley, 80 id. 469; Canatsey v. Canatsey, 130 id. 397). “A paper, that has not thus been subscribed and witnessed, has no force or effect as a will under our statutes.” (Rigg v. Wilton, 13 Ill. 15). Section 2 of the act in regard to wills provides, “that every will, testament or codicil, when thus proven to the satisfaction of the court, shall, together with the probate thereof, be recorded by the clerk of said court, in a book to be provided by him for that purpose, and shall be good and available in law for the granting, conveying and assuring the lands, tenements and hereditaments, annuities, rents, goods, and chattels therein and thereby devised, granted and bequeathed.” (3 Starr & Curtis’ Stat.—2d ed.—p. 4026). The will of Richard Smith does not conform to the requirements of our statute as above indicated. The certificates, accompanying the copy which is attached to the bill, show it to be a holographic will, that is to say,,a will written, dated and signed entirely by the testator’s own hand, and unattested by any witness. (26 Am. & Eng. Ency. of Law, 127). Richard Smith lived in North Carolina, and his will was made there. It is claimed by appellants that the will was a valid one under the laws of North Carolina, and was duly admitted to probate in that State, where Smith died. In order to sustain their claim, appellants must show, that such an authenticated copy of the will, as is required by section nine (9) of the act in regard to wills, has been recorded in this State. Said section 9 is as follows: “All wills, testaments and codicils, dr authenticated copies thereof, proven according to the laws of any of the United States, or the territories thereof, or of any country out of the limits of the United States, and touching or concerning estates within this State, accompanied with a certificate of the proper officer, or officers, that said will, testament, codicil or copy thereof was duly executed and proved, agreeably to the laws and usages of that State or country in which the same was executed, shall be recorded as aforesaid, and shall be good and available in laio, in Wee manner as loills made and executed in this State.” (3 Starr & Curtis’ Stat.—2d ed.—4040). Wills made and proven out of this State are only “good and available in law, in like manner as wills made and executed in this State,” when the proceedings in relation to the authentication thereof are in compliance with section 9. It is not alleged in the bill, that the appellees, or Green, under whom they hold, had any actual notice of the will of Richard Smith, or that the same was recorded in Illinois. By alleging, however, that a copy of the will was recorded in Illinois, it is impliedly charged, that Green or appellees had constructive notice of the will. But the copy, as recorded, did not operate as constructive notice, unless it was authenticated and certified in the manner required by section 9. (Lewis v. Barnhart, 145 U. S. 79; Saffordy. Stubbs, 117 Ill. 389; Rohn v. Harris, 130 id. 525; McCormick v. Sullivant, 10 Wheat. 192; Keith v. Keith, 97 Mo. 223; Slaton v. Singleton, 9 S. W. Rep. (Tex.) 876). Much discussion is indulged in by the various counsel engaged in the case as to the meaning of section 9. It is claimed by one qr more of the counsel for appellees, that section 9 merely provides the manner of proving a will in this State, which has already been admitted to probate by the proper court of another State or country, and had its origin in the general rule that wills once admitted to probate cannot thereafter be removed from the files of the court where probated; that section 9 simply dispenses with original proceedings and was not intended to confer any validity upon a foreign will that would be invalid under our law. It is also contended, that the certificate of the clerk, attached to the copy of the will, is defective in not stating that the will was executed, as well as proven, according to the laws of North Carolina. A discussion of these contentions is unnecessary to the decision of this case, though it may be said that some doubt is cast upon their correctness by the decisions of this court in Gardner v. Ladue, 47 Ill. 211, and Shephard v. Carriel, 19 id. 313. We are, however, of the opinion for another reason' than either of those above indicated, that the copy of the will, as recorded here, did not comply with the requirement laid down in section 9. That section provides that “authenticated copies” of foreign wills shall be recorded, in order that they may have the same effect in passing title to lands in this State, as is given to the recording of domestic .wills by said section 2 Section 9 requires that the will shall be proven according to the laws of the foreign State, territory or country, and that the will or copy must be accompanied by a certificate as to its due execution and proof; but, in addition to such proof and certificate, the copy of the will must be an authenticated copy. How must it be authenticated? We can conceive of no other meaning here intended by the legislature than such authentication as is prescribed by the act of Congress in relation to the authentication of records. (Newman v. Willetts, 52 Ill. 98). The act of 1790, or section 905 of the Revised Statutes of the United States, provides that “the records and judicial proceeding's of the courts of any State or territory shall be proved or admitted in any court within the United States by the attestation of the clerk and the seal of the court annexed, together with a certificate of the judge, chief justice or presiding magistrate that the said attestation is in due form.” The certificate here, that the attestation of the clerk is in due form, is made by the Governor of the State, acting through his private secretary, and not by the judge, chief justice or presiding judge of the court in North Carolina where the will was admitted to probate. Such a certificate is insufficient. The act of 1804, or section 906 of the Revised Statutes of the United States, provides for the certificate of the Governor of the State as to certain records “not pertaining to a court.” The probate of a will, however, is a judicial proceeding, and the record of the will and its probate are matters which “pertain to a court.” It follows, that the copy of the will of Richard Smith, as recorded in Illinois, did not have the effect of passing title to the land in this State, because the certificate of attestation attached to such copy is fatally defective in that it is made by the Governor of the State, and not by the judge of the probate court in North Carolina. It is to be noted, that this will contains no description of any particular land. It is general in its terms, and contains no words to indicate that the testator owned land in Illinois, or anywhere else outside of North Carolina. If the record of the copy of such a will is to operate as constructive notice of an alleged title to Illinois lands not described therein, the statute, which gives it such an effect, must be literally complied with. Second—If, however, we are wrong in the view above expressed, and the copy of the will of Richard Smith was properly proven, certified, authenticated and recorded, the question arises, what is a proper construction of the provisions of the will? It was written by the testator himself, apparently without the advice of legal counsel, and is therefore inartistically drawn. Its provisions are somewhat obscure, and perhaps inconsistent with or repugnant to each other. As has often been said, the important question to determine, in construing a will, is what is the intention of the testator? (Whitcomb v. Rodman, 156 Ill. 116). This intention must be ascertained from the whole will; and all of its parts must be considered in connection with each other. (Lunt v. Lunt, 108 Ill. 307; Dickison v. Dickison, 138 id. 541; Osborn v. Jefferson Nat. Bank, 116 id. 130). If these rules of construction be applied, it clearly appears that the testator intended to give the whole of his estate, both real and personal, to his wife, Penelope Smith, and his daughter, Mary Ann Smith. The first item of the will begins as follows: “It is my will and desire that the whole of my estate, both real and personal, be divided between my wife and daughter, Mary Ann Smith, as the laws of the State have and are made and provided, believing those laws make as equitable and fair a division, as I can make, with the following proviso and exceptions, to-wit,” etc. It seems to be conceded by counsel on both sides, that the laws of North Carolina in regard to the descent of property, at the time when the will was made, were substantially the same, as are the laws of Illinois upon that subject. Consequently, as Mary Ann Smith was the only child of the testator, Richard Smith, she, as his heir, would inherit the whole of the real estate owned by him, subject to the dower of her mother; and one-third of the personal property would belong to the widow and two-thirds thereof to the daughter.. By the provisos and exceptions in the first three items of the will, the widow was to take, instead of what the law would thus allow her, one-half the net profits of the whole estate, both real and personal, for her maintenance and support during her life, and the daughter was to take the other half of the net profits for her maintenance and support during the life of her mother. It is claimed by one or more of the counsel for appellees, that the first three items of the will dispose of the whole of the estate, and that, therefore, the fourth item, which professes to give and bequeath all the rest and residue of the estate, is void, because there was no residue left to be given. It is also contended by some of the counsel for appellees, that, if there,was a residue remaining, which was disposed of by the fourth item, the latter item attempted to create a perpetuity by tying up the property in the hands of trustees for a longer period than the law allows, and that, for this reason, the fourth item is void. We are inclined to think, however, that when all parts of the will are considered together, these contentions will be seen to be without force. After giving the use of the net profits of the estate, one-half to the widow during her life, and one-half to the daughter during the life of the widow, the fourth item then proceeds to dispose of the estate at the mother’s death by giving one-third thereof absolutely to the daughter, and by disposing of the remaining two-thirds by placing the same in the hands of trustees, who are not permitted to diminish the same; and “it is to remain as a separate and special and trust fund for her benefit and her heirs forever, she receiving the net profits after the decease of her mother, as mentioned in another clause of this will for and during her natural life, and then to such of her child or children as she may have or leave surviving her.” It is apparent, that the most material question in the case is, where did the fee in the undivided two-thirds, in which Mary Ann Smith is said to have had a life estate merely, go' upon the death of the testator? It is claimed by the appellants, that Mary Ann Smith had only a life estate in the two-thirds, with fee in her children, if she died leaving any; and that the fee rested in abeyance until her death, and, if she should die childless, then the fee in such two:thirds reverted to the heirs of Richard Smith, who were living at the death of Mary Ann Smith. It is conceded, that Mary Ann Smith died never having had any child or children. We do not regard this construction of item 4 of the will as the correct one. Either the fee of the undivided two-thirds remained in the testator and was not disposed of by the provisions of the will, or such fee vested in Mary Ann Smith, sole heir of the testator, subject to be divested upon her having or leaving surviving her a child or children. If the fee did not pass by the terms of the will, then it was intestate estate, and went to Mary Ann Smith, as the only child and heir of the testator. If this is the córrect view, then by the deed, which Mary Ann Smith and her mother executed to Silas T. Green in 1856, the fee passed to Green, and through him, and his grantees and assigns, to the present appellees. The doctrine of the authorities is, that, in such cases as this, the fee title does not rest in abeyance during the continuance of the particular estate and before the birth of children, but that it vests in the heir-at-law ad interim, subject to be divested by the birth of persons who can take under the will. Having thus vested in the heir-at-law upon the death of the testator, it remains there unless divested by parties who can take under the will. When a devise is made giving a life estate to the testator’s daughter and a contingent remainder in fee to her children not yet in being", and no other disposition is made of the fee, the fee descends to the testator’s heirs as intestate property; and it so remains as a vested estate in fee simple until the contingency happens. The heirs in such a case take the estate, subject to the condition of being divested on the contingent remainder-men coming into being. In the case at bar, the testator gave his daughter a life estate and a contingent remainder to her children, and made no disposition of the reversion. Therefore, the testator either died intestate as to two-thirds, or his daughter took the fee under the will, determinable upon her death having had issue, or with issue living". It makes little practical difference, whether she took the fee under the will, or whether the residuary estate, being undevised, went to her by operation of law. As she died without issue, and without having had issue, the fee simple became absolute, and, as she conveyed to Green during her life, the latter, and his grantees and assigns, held an absolute, indefeasible title in fee simple. The fact that, in such cases, the life tenant may be the sole heir, does not prevent the vesting of the estate in her, but it passes to her as h er property, subject only to the condition or possibility of contingent remainder-men coming into being. There is nothing in the will of Richard Smith to indicate, that he intended any of this property to pass to his brothers and sisters or their descendants. He makes no mention whatever of them, but his sole object is to provide for his daughter and for her children, if she should have any. The weight of authority is against the position, that where a particular estate is devised and a contingent remainder is provided for, the fee remains in abeyance. Where a grant is made by way of use or by devise, the fee remains in the grantor, or passes to his heirs as intestate property. It will be found, as a general thing, that where the fee is held to be in abeyance, the contingency is not created by will or by grant by the way of use. The case at bar is almost on all fours -with the case of Kellett v. Shepard, 139 Ill. 433, where the will of a testator gave his daughter a life interest in a certain share of the estate, and then provided, that “after her death it shall descend and go in reversion to her child or children, should she have any, but in case she died having no issue, in such case to go to and descend in reversion to my heirs-at-law.” There, the life estate ended, and the tenant for life died without issue, and it was held that the heirs-at-law were the persons, who answered that description at the death of the testator, and not at the death of the life tenant. And it was there said (p. 442): “The word ‘heir, ’ in its strict and technical import, applies to the person or persons appointed by law to succeed to the estate in case of intestacy. * * * This construction or definition is not changed by the fact, that a life estate may precede the bequest to the heirs-at-law, nor by the circumstance that the-bequest to the heirs is contingent on an event that may or may not happen, -x- -x- -x- rp2ie reversionary estate, vested in the. heirs-at-law at the testator’s death, was liable to open to let in her children in case she should have any, but in the meantime it subsisted in the heirs for the purpose of drawing the possession to them in the event of her death without children. The law always gives preference to vested over contingent remainders. It does not favor the abeyance of estates.” (Grimmer v. Friederich, 164 Ill. 245; McConnell v. Stewart, 169 id. 374). In Kellett v. Shepard, supra, the testator in one part of his will provided for no disposition whatever of the one-half of the residue in the event of his daughter’s death without issue; and it was there said, that, in such case, the law would give the share, at the death of the daughter without children, to those who were the testator’s heirs-at-law at his decease. In Bates v. Gillett, 132 Ill. 287, we said (p. 295): “According to the modern doctrine, there being no person in esse to take, the remainder vested, upon the death of the testator, in his heirs-at-law, subject to be divested when the will became operative as to such remainder. Primarily, the vesting of the remainder, under the will, depended upon the birth of children of the body of Sophronia. If she had died without issue, the estate would have descended, as intestate estate, to the heirs-at-law of the testator.” Where a testator creates a life estate, and then disposes of the fee by a contingent remainder, which is void, or for any reason fails, then the fee goes as intestate property to the testator’s heirs-at-law, not to those who are the heirs-at-law at the time of the death of the life tenant, but to those who are the heirs-at-law at the time of the testator’s death. So far as the adopted opinion of the circuit court in Madison v. Larmon, 170 Ill. 65, lays down a contrary rule, such opinion must be regarded as here changed and modified to conform to the views here announced. The views hereinbefore expressed are sustained by the weight of authority. In Bell’s Estate, 147 Pa. St. 387, it was held as follows: “If an intestacy occurs by reason of the failure of a contingent remainder where there is no limitation over, the next of kin and heirs entitled to take the estate are to be ascertained as of the date of the death of the testator, and not at the date of the determination of the contingency; and the fact, that the person, to whom the particular. estate was given, though his death was to precede the ultimate limitation, is himself an heir, does not change the result.” In Gilpin v. Williams, 25 Ohio St. 295, the Supreme Court of Ohio say: “We shall therefore dispose of the case upon the theory, that the only estate in these lands which passed to the trustees, was an estate for the natural life of Euretta, and remainder in contingency to her children, the contingency being that she will die leaving children surviving her. The right, by means of which the real owner of the fee will eventually come into possession of this property as an. estate of inheritance, is vested in some person or persons awaiting the event which will unite the right of property and the right of possession in thé same person or persons. We do not believe it is in abeyance, or that it rests in nubibus. It is clear that it is not in Euretta—her only title is to an estate for her natural life; nor in her children—she has none. It is not in the trustees, as we have assumed. The fee simple title was in the testator until bis death, and if it did not pass by his will to any devisee therein named, it either ceased to exist in any one, or it passed by way óf descent to his heirs-at-law. In our ojDinion, it descended to the heirs; subject, however, to be divested, by force of the will, in the event that Euretta shall die leaving children; but subsisting in -the meantime in the heirs, for the purpose of drawing the possession to them in the event of her death without children. This right in the heirs is an estate in reversion. It is the residue of the whole estate as owned by their father not disposed of by his will. When the reversion takes place, the heirs will hold by virtue of the title which descended to them at the time of his death, and not by virtue of any new title acquired by purchase. And although their estate may divest upon the happening of an uncertain event, it is now, nevertheless, a vested right. After much consideration upon this point, we are content to adopt the doctrine as stated by Mr. Fearne, in his work on Remainders, chapter 6, page 351, namely, ‘that where a remainder of inheritance is limited in contingency by way of use, or by devise, the inheritance in the meantime, if not otherwise disposed of, remains in the grantor and his heirs, or in the heirs of the testator, until the contingency happens to take it out of them.’” (See, also, Stokes v. Van Wyck, 83 Va. 724: Coots v. Yewell, 95 Ky. 367; Nightengale v. Burrell, 15 Pick. 104; Harris v. McLaren, 30 Miss. 533; In re Kinyon, 17 R. I. 149; Bigley v. Watson, 98 Term. 353; Joslin v. Hammond, 3 Myl. & K. 109; Robinson v. Palmer, 90 Me. 246; Hills v. Barnard, 152 Mass. 67; Rand v. Butler, 48 Conn. 293). We are of the opinion, that Mary Ann Smith took a fee simple title in the land of her father, which was determinable by her having" or leaving" children at her death, and which became absolute upon her death without having" had and without leaving any child or children. The will of Richard Smith, which is now under consideration, was construed by the Supreme Court of North Carolina at the June term, 1855, before the execution of the deed by Mrs. Smith and her daughter to Green, in the case of Winder v. Smith, 47 N. C. 327, where the Supreme Court of North Carolina say: “The devisor was manifestly inops concilii, and his will requires all the aid, which can be derived from that consideration, to enable us to carry out his presumed intention. Looking at the whole will and endeavoring to give effect to every part of it, as it is our duty to do, we are led to the conclusion that by the fourth clause the devisor has given to his daughter, Mary Ann, an estate in fee in all his real estate, subject to the dower of her mother therein, with an executory devise in fee, in two-thirds thereof, to her children, should she marry and die leaving issue. The devise is, in form, rather a gift to her for life, with a contingent remainder in fee to her children, and upon default of children, remainder to her and her heirs; but the legal effect of it is as we have above stated.” While the construction given to this will by the Supreme Court of North Carolina is not binding upon us, so far as it applies to real estate in Illinois, yet it presents a view of the matter, which leads substantially to the same result as that above announced. The North Carolina Court holds, as we understand the decision, that the children of Mary Ann Smith did not take as heirs of her body, and, therefore, the estate in her was a fee simple determinable upon the happening of a certain contingency, namely, having or leaving children at her death, which contingency never happened, and therefore the fee remained in her. Under this view, the title passed by the deed made in 1856 to Green, the remote grantor of 'the appellees, and his heirs and assigns. Our conclusion is, that the appellees, who bold under Mary Ann Smith, either by the deed executed to Green or otherwise, are the owners of the fee simple title to the property; and that the remainder in the two-thirds thereof did not pass to the heirs-at-law or next of kin of Richard Smith, who were surviving at the time of the death of Mary Ann Smith in 1891. Accordingly, the decree of the circuit court, sustaining the demurrer and dismissing the bill, is affirmed. Decree affirmed.