Cummings v. Hamilton

Mr. Justice Scott delivered the opinion of the court: Reading this will from the four corners thereof, as it speaks at the death of the testatrix, the devise to Harry C. Cummings was substantially this: If he survived the life tenant he was to take the property in fee; if he did not survive the life tenant the property was, upon the termination of the life tenancy, to vest in his children or their descendants, in fee, provided he died leaving children. The property was to pass to Harry C. Cummings upon an uncertain and dubious event, viz., if he survived the life tenant, and was therefore a contingent remainder. Haward v. Peavey, 128 Ill. 430; Thompson v. Adams, 205 id. 552. It is true that the gift to him by the sixth clause is by words of present devise and not conditioned upon his surviving the life tenant, and the seventh clause devises the property to his child or children in the event of his dying prior to the decease of the life tenant, and the devise, so far as the provisions just mentioned are concerned, would therefore seem to fall within the case of Blanchard v. Blanchard, 1 Allen, 223, quoted from and approved by this court in the case of Haward v. Peavey, supra, and within the principle announced in the case of Orr v. Yates, 209 Ill. 222, and if so, the estate devised to Harry C. Cummings would be a fee in remainder defeasible by his death prior to the death of the life tenant. But one feature of the will now before us was entirely absent in the wills under consideration in the Blanchard case and in the Orr case, namely, by the words devising the estate in the event of. the death of Harry C. Cummings prior to the decease of the life tenant, in the seventh clause of the will of Julia I. Whipple, it is provided that his children or their descendants “shall inherit the share of the real estate which would have vested in their parents under the sixth and last provision above made.” We regard the expression, “which would have vested in their parents,” as significant. The evident meaning thereof is, that the children (or their descendants) shall take the share of the real estate which would have vested in the parent (Harry C. Cummings) had the parent survived the life tenant, and plainly indicates the purpose of the testatrix that the real estate was not to vest in the parent unless the parent survived the life tenant. Whether, however, the estate devised to Harry C. Cummings be regarded as a contingent remainder or as a fee in remainder" subject to be divested by his death prior to the death of the life tenant is not of importance, because in this case, as was said in Knight v. Pottgieser, 176 Ill. 368, (on p. 376) “a fee in the remainder, subject to be divested by the death of the person seized prior to the death of the life, tenant, is not, for any practical purposes, to be distinguished from a remainder contingent upon the remainder-man surviving the life tenant.” A patient examination of the authorities cited by appellee has led us to the conclusion that there is no reasonable basis for her contention that the testatrix devised to Harry C. Cummings a vested remainder which was not subject to be divested. It is then urged that the doctrine of acceleration applies. This doctrine “proceeds upon the supposition that, though the ulterior devise is in terms not to take effect in possession until the decease of the prior devisee, if tenant for life, yet that, in point of fact, it is to be read as a limitation of a remainder to take effect in every event which removes the prior estate out of the way. (1 Jarman on Wills, 539; Blatchford v. Newberry, 99 Ill. 11.) Whether the life estate is determined by a revocation, or by death, or by the renunciation of the widow, or by any other circumstance which puts the life estate out of the way, the remainder takes effect, having only been postponed in order that the life estate might be given to the life tenant.” (Slocum v. Hagaman, 176 Ill. 533.) It is said that the conveyance by Mathew C. Whipple of his interest in 120 acres of the real estate to the remainder-men mentioned in the sixth clause of the will removed the life estate out of the way so far as that 120 acres of land is concerned, and that the 120 acres at least is therefore subject to partition in fee. With this contention we are unable to agree. The conveyance of the life estate does not amount to its removal “out of the way.” It is not removed unless it is in some manner destroyed, as by renunciation or refusal to take, or by its being defeated by some event which takes away the right of the life tenant to-hold the property prior to his decease, where the instrument creating the life tenancy has provided that such event should terminate that tenancy, or where the life tenant has failed in the performance of duties upon the performance of which the life tenancy depends. The conveyance of the life estate to another does not amount to a destruction or removal thereof. It follows, therefore, that the decree of the circuit court was erroneous. That decree will be reversed and the cause will be remanded to that court for further proceedings consistent with the views herein expressed. Reversed and remanded.