Bails v. Davis

• Decision Date: 26 October 1909
• Citation: 241 Ill. 536,89 N.E. 706
• Parties: BAILS et al. v. DAVIS et al.
• Court: Illinois Supreme Court

241 Ill. 536

89 N.E. 706

BAILS et al.

v.DAVIS et al.

Supreme Court of Illinois.

Oct. 26, 1909.

Appeal from Circuit Court, Macon County; W. C. Johns, Judge.

Bill by Jewell H. Bails and others against Henry Davis and others. Decree of dismissal, and complainants appeal. Reversed and remanded, with directions.

A. C. Anderson, for appellants.

DUNN, J.

A demurrer was sustained to a bill for partition filed in the circuit court of Macon county, the bill was dismissed for want of equity, and the complainants have appealed.

The complainants deraign title from Jonas Nye. He conveyed the premises by a statutory quitclaim deed ‘to Joseph Kretzer and Mora Kretzer, his wife, during their natural lives and after their death to the heirs of said Joseph Kretzer.’ The Kretzers were afterward divorced, and Mora Kretzer conveyed all interest in the premises to Joseph Kretzer, whose title by subsequent conveyances has become vested in the complainants. Joseph Kretzer has two sons, one of whom conveyed his interest in the premises to the other, who was made a party to the bill and filed the demurrer.

Appellants claim to be seised of the premises in fee simple. Whether they are so seised depends upon the question whether the title conveyed by Jonas Nye to Joseph Kretzer was a fee or only a life estate. The language of the deed purports to convey the premises to the grantees during their joint lives, and, after their death, to the heirs of Joseph Kretzer. Appellants claim that this deed is within the rule in Shelley's Case, and conveyed a fee to Joseph Kretzer, subject only to the life estate of Mora Kretzer as a tenant in common of the premises, and that, by the conveyance of her interest, the whole estate vested in Jeseph Kretzer. No brief has been filed on behalf of the appellees. Under the rule in Shelley's Case, which is in force in this state, if an estate for life is granted by any instrument and the remainder is limited by the same instrument, either mediately or immediately, to the heirs of the life tenant, the life tenant takes the remainder as well as the life estate. The rule is one of the most firmly established rules of property and is unshaken in this state. In determining whether it is applicable in a given case the question does not turn upon the quantity of estate intended to be given to the first taker, whether a life estate or more, but upon the nature of the estate intended to be given to the heirs, whether by inheritance or otherwise. Vangieson v. Henderson, 150 Ill. 119, 36 N. E. 974;Ward v. Butler, 239 Ill. 462, 88 N. E. 189. When the heir takes in the character of heir, he must take in the quality of heir, and all heirs taking as heirs must take by descent. Baker v. Scott, 62 Ill. 86. The limitation to heirs by that name as a class, to take in succession from generation to generation, requires the estate of inheritance imported by that limitation to vest in the first taker. The language of the deed clearly indicates the nature of the estate intended to be given to the heirs of Joseph Kretzer. He is given an estate for life with remainder in fee to his heirs as a class, without reference to individuals or any other condition. The estate thus given to the heirs by the operation of the rule vests in the life tenant.

The requisites of the rule are stated to be, first, a freehold estate; second, a limitation of the remainder to the heir or heirs of the body of the person taking the freehold estate by the name of heirs as a class and without explanation, as meaning sons, children, etc.; third, the estates of freehold and in remainder must be created by the same instrument; fourth, the estates must be of the same quality-that is, both legal or both equitable. Baker v. Scott, supra; Ward v. Butler, supra. All these requisites are present here, viz., a life estate to Joseph Kretzer and a remainder in fee simple to his heirs-both legal estates created by one deed. Two reasons suggest themselves which might be urged against the application of the rule: (1) The life estate is in one-half the property only, while the...