Blackstone v. Althouse

• Decision Date: 07 June 1917
• Docket Number: No. 11155.,11155.
• Citation: 278 Ill. 481,116 N.E. 154
• Parties: BLACKSTONE et al. v. ALTHOUSE.
• Court: Illinois Supreme Court

278 Ill. 481

116 N.E. 154

BLACKSTONE et al.

v.ALTHOUSE.

No. 11155.

Supreme Court of Illinois.

April 19, 1917.

Rehearing Denied June 7, 1917.

Appeal from Circuit Court Kankakee County; Arthur W. De Selm, Judge.

Action by Mary A. J. Blackstone against Ellen Hartman Althouse and others, in which the defendant filed cross-bills. From a decree for the plaintiff, the named defendant appeals. Affirmed.H. K. & H. H. Wheeler, of Kankakee (John M. Cameron, of Chicago, of counsel), for appellant.

Granger, Dougherty & Nourie, of Kankakee, Beasley, Douthitt, Crawford & Beasley, of Terre Haute, Ind., John M. Cleary and Leo V. Cleary, both of Kansas City, Mo., and C. Arch Williams and F. S. Loomis, both of Chicago, for appellee.

CARTWRIGHT, J.

Jane Blackstone died on April 30, 1865, leaving a last will and testament executed on March 13, 1865, which was admitted to probate in the county court of Kankakee county. She had taken and brought up from infancy two boys, John Smith and Lawrence McGill (to whom she added the name Blackstone) and a girl, Ellen Hartman, now Ellen Hartman Althouse, appellant. The testatrix had three brothers, William Glover, James Glover, and Samuel Glover, and two sisters, Elizabeth Ray and Ann Glover. After providing for the payment of her debts and funeral expenses she devised to John Smith Blackstone 240 acres of land and two timber lots. The third clause, under which this controversy arose, is as follows:

‘Third.-I give, devise, and bequeath unto Lawrence McGill, known by the name of Lawrence Blackstone (being brought up by me from infancy), all these certain tracts or parcels of land situated in the county of Kankakee and state of Illinois and described as follows, viz.: The northeast quarter of section No. 18, in township No. 31, north of range No. 12, east of the third principal meridian; also the east half of the southwest quarter of section No. 7, in township No. 31, north of range No. 12, east of the third principal meridian; also lot No. 17 of subdivision of lot No. 14 of the west half of the Me-she-ke-ten-o reservation; and also lot No. 6 of the subdivision of lot No. 13 of the west half of the Me-she-ke-ten-o reservation, being in township No. 31, north of range No. 11 east of the third principal meridian, together with the the hereditaments and appurtenances thereunto belonging or in any wise appertaining; to have and to hold the premises above described to the said Lawrence Blackstone, his heirs and assigns forever: Provided, that should the said Lawrence Blackstone die without issue, then in that case all the lands bequeathed to him shall be sold by my executor hereinafter appointed and the proceeds thereof be divided equally among my brothers and sisters and John Smith Blackstone and Ellen Hartman.’

John Smith Blackstone was executor of the will, and legacies were given to John Cooper, Ellen Hartman, and Samuel Glover, to be raised out of a sale of a 55-acre tract of land, and the balance of the proceeds of the tract was given in equal parts to the brothers and sisters of the testatrix. There were other bequests not material in this case. John Smith Blackstone, the executor, died in June, 1910. Lawrence McGill Blackstone died August 6, 1915, without issue, having never been married, leaving a will, by which he gave his property to legatees and devisees who would have been his heirs at law if he had died intestate, and all of the brothers and sisters of the testatrix died before the death of Lawrence McGill Blackstone, so that the appellant, Ellen Hartman Althouse, was the only one of the beneficiaries named in the third clause of the will who was living when the executory devise took effect. In 1869 the devisee, Lawrence McGill Blackstone, executed a deed of the lands described in the third clause of the will to Simon P. Steward, and in 1874 Steward reconveyed the lands. Lawrence McGill Blackstone allowed 4 acres of the land to be sold for taxes, and a sheriff's deed was made to John Forsythe, who afterward, on November 18, 1874, conveyed the tract to Lawrence McGill Blackstone.

The appellee Mary A. J. Blackstone commenced this suit in the circuit court of Kankakee county by filing her bill against the appellant, Ellen Hartman Althouse, the heirs and devisees of the brothers and sisters of the testatrix, Jane Blackstone, and the heirs and devisees of Lawrence McGill Blackstone, praying for a construction of the third clause of the will and the appointment of a trustee to sell the lands and divide the proceeds. She set up as the true construction of the will that she was entitled to one-seventh, Ellen Hartman Althouse one-seventh, and the heirs, representatives and devisees of the five brothers and sisters of the testatrix the remaining five-sevenths, which was to be distributed among them. The appellant, Ellen Hartman Althouse, by her answer denied that the complainant or any other person had any interest in the real estate or the proceeds thereof, but she claimed the whole as the sole surviving member of the class mentioned in the third clause to whom the executory interest was limited, and alleged that there was no necessity for the appointment of a trustee. She also filed a cross-bill, alleging the death of all the brothers and sisters of Jane Blackstone prior to the death of Lawrence McGill Blackstone, and the rearing of herself by Jane Blackstone as a member of her family, and claiming ownership of the land as in her answer. The heirs and devisees of Lawrence McGill Blackstone answered the original bill and cross-bill, claiming to own the land by virtue of the tax deed and the deed by Simon P. Steward to Lawrence McGill Blackstone, and they filed a cross-bill making the same claim. Answers to all the bills and cross-bills and replications thereto having been filed, there was a hearing, upon which the chancellor found as prayed in the original bill, and entered a decree ordering the tax deed and Steward deed removed as clouds upon the title, dismissing the cross-bills of Ellen Hartman Althouse and of the heirs and devisees of Lawrence McGill Blackstone and granting the relief prayed for in the original bill. From the decree Ellen Hartman Althouse prosecuted this appeal.

Jane Blackstone devised a fee in the lands to Lawrence McGill Blackstone, but qualified the fee so devised by a provision that on the contingency of his death without issue the estate should go over to the executory devisees, to be converted into money and the proceeds divided among them. Such an executory interest may be created to arise in the future, and it needs no particular estate to support it. The estate created in Lawrence McGill Blackstone was a base or determinable fee, which came to an end when the executory devise took effect. Fifer v. Allen, 228 Ill. 507, 81 N. E. 1105;Ahlfield v. Curtis, 229 Ill. 139, 82 N. E. 276;Brenock v. Brenock, 230 Ill. 519, 82 N. E. 816;Mayer v. McCracken, 245 Ill. 551, 92 N. E. 355.

An executory devise can only be destroyed by a failure of the contingency upon which it is to take effect, and it could not, at the common law, be prevented from taking effect when the contingency happened, either by fine and recovery or in any of the modes by which contingent remainders could be destroyed. The executory devise being indestructible, the determinable quality of the fee of the first taker follows any transfer by him. Becker v. Becker, 206 Ill. 53, 69 N. E. 49;Williams v. Elliott, 246 Ill. 548, 92 N. E. 960,138 Am. St. Rep. 254. It makes no difference that the real estate in this case is to be sold by the executor and the proceeds distributed, since a limitation over of chattels is good as an executory devise, and the only difference is, if the executory devise takes effect as to chattels it goes to personal representatives. Glover v. Condell, 163...