Blair v. Vanblarcum
| Decision Date | 31 January 1874 |
| Citation | 71 Ill. 290,1874 WL 8658 |
| Parties | NANCY BLAIR et al.v.MARY G. VANBLARCUM. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of McLean county; the Hon. THOMAS F. TIPTON, Judge, presiding.
Messrs. STEVENSON & EWING, for the plaintiffs in error.
Mr. O. T. REEVES, and Mr. C. R. DICKINSON, for the defendant in error.
The father of Mary Vanblarcum died testate, leaving her as his only child. This is the second clause of his will: “I will, give, bequeath and devise unto my daughter, Mary Gamble, and to the heirs of her body, and to their heirs and assigns, all of my real estate, of whatever description and wherever situated; and in case the said Mary Gamble shall die without issue, then the real estate hereby willed, bequeathed and devised unto her, shall go to and descend unto my brothers and sisters, and to their heirs and assigns, in equal proportions.” The will was duly probated, and remains in full force.
Subsequently, Mary intermarried with Jacob C. Vanblarcum, and they have filed this bill, alleging that plaintiffs in error, with other persons, are the sisters and brothers of the testator, claiming that the will vested in Mary Vanblarcum the unconditional fee simple title to the lands of which testator died seized; that the limitation over to the heirs of her body, and in case of her death without issue then to the brothers and sisters of testator, is inoperative and void at law, but operates as a cloud on her title. The bill prays for a construction of the will, and that the conditional limitation over be declared void, and that Mary be decreed the owner in fee simple absolute. To this bill defendants below filed a demurrer, which was overruled by the court, by which defendants abided, and the court granted the relief sought, which is the error assigned on this record.
Under the ancient English tenures, where a person conveyed real estate to another and the heirs of his body, it was held, that the grantee took only a conditional fee, and in the event of his death without such heirs, the title reverted to the grantor. But to enlarge the estate, and free it from the reversion, it came to be held that, as soon as an heir of the body of the grantee was born, the condition was performed, and if he then sold he could pass the fee, and thus bar the reversion, and cut off any title that might have vested in the heir. But this rule was changed by the statute of 13 Edw. I, chap. 1, commonly called the statute de donis conditionalibus. That statute enacted, that from thenceforth the will of the donor be observed, and the tenements so given to a man and the heirs of his body should, at all events, go to such issue, if there were any, or if none, should revert to the donor. And in construing this statute, the courts held the donee had no longer a conditional fee, which became absolute on the birth of issue, but they divided the estate into two parts, leaving in the donee a new kind of particular estate, which they called a “fee tail,” and vesting in the...
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