Butterfield v. Sawyer

• Decision Date: 19 October 1900
• Citation: 58 N.E. 602,187 Ill. 598
• Parties: BUTTERFIELD et al. v. SAWYER et al.
• Court: Illinois Supreme Court

187 Ill. 598

58 N.E. 602

BUTTERFIELD et al.

v.SAWYER et al.¹

Supreme Court of Illinois.

Oct. 19, 1900.

Appeal from circuit court, Cook county; E. Hanecey, Judge.

Bill by Charles W. Butterfield and others, as heirs at law of Adeline B. Gellatly, against Elizabeth Sawyer and others, for a partition of certain lands. From a decree in favor of defendants, plaintiffs appeal. Affirmed.

Boggs, C. J., and Magruder, J., dissenting.

John T. Barker, for appellants.

Bulkley, Gray & More, for appellees Josephine B. Dix and others.

Heckman, Elsdon & Shaw, for other appellees.

Appellants filed their bill in the circuit court of Cook county for the partition of certain lands in that county, claiming to be the heirs at law of Adeline B. Gellatly, and tenants in common with appellees, except Roy Gellatly and his guardian. They base their claim of title to the premises in question upon a certain deed made in February,[187 Ill. 599]1853, by their grandfather Justin Butterfield to Adeline Butterfield, his daughter. After setting out the parties thereto, that deed reads: ‘That the said Justin Butterfield, and Elizabeth, his wife, as well for and in consideration of the natural love and affection which they have and do bear unto the said Adeline Butterfield, as also for the better maintenance, support, and livelihood of her, the said Adeline Butterfield, have given, granted, and confirmed, and by these presents do give, grant, and confirm, unto the said Adeline Butterfield, * * * to have and to hold, all and singular, the premises hereby granted and confirmed or mentioned, or intended so to be, with the appurtenances, unto the said Adeline Butterfield, for and during her natural life, with remainder to her child or children that may be living at the time of her decease, and to the heirs and assigns of such child or children forever, and, in default of child or children of the said Adeline Butterfield at the time of her decease, then to the heirs generally of the said Adeline Butterfield forever, except no part shall go to George Butterfield.’ George Butterfield was a brother of Adeline. After the making of the deed above set out, Adeline Butterfield married, and became the widow of one Francis Gellatly, who died, leaving no children of Adeline Gellatly surviving. Subsequently the widow, by proper proceeding in the county court of Cook county, adopted a child, Roy Cramer (now Roy Gellatly, one of the appellees herein), and in the decree of adoption entered by the county court it was provided that from the date thereof ‘the said Roy Cramer shall, to all legal intents and purposes, be the child or the petitioner, Ada B. Gellatly, and for the purposes of inheritance, and all other legal incidents and consequences, shall be the same as if he had been born to her in lawful wedlock,’ and that the name of the child shall be changed to Roy Gellatly. Adeline Gellatly died, leaving no child or children by birth. The bill alleges that Roy Gellatly, the adopted child of Adeline Gellatly (née Butterfield), is in possession, by his guardian, of the premises in controversy, and collecting the rents, and asks the appointment of a receiver therefor; prays that Roy Gellatly and his guardian shall let appellants and their co-tenants into possession of the premises, and that partition be made of the same. The circuit court, on the hearing, entered a decree finding that by virtue of the decree of adoption the appellee Roy Gellatly became the remainder-man under the deed from Justin Butterfield to Adeline Butterfield (Gellatly), and that upon her death, as her child and sole heir at law, he became seised in fee simple of the premises described in the deed, and enjoined the appellants and their co-tenants from claiming any right, title, or interest in the premises. From that decree of the circuit court the appellants, their co-tenants (appellees) joining them, prosecute this appeal.

WILKIN, J. (after stating the facts).

The habendum clause of the deed in question here, after creating a life estate in the grantee, Adeline Butterfield, presents what is sometimes termed a ‘contingency with a double aspect.’ The first event or aspect contemplated is that the grantee should have a child or children, who should take the remainder in fee simple, limited upon the life estate. In the event of the death of the life tenant, leaving surviving her no child or children to take the remainder, then the second aspect of the deed was to become effective, and vest the remainder in the ‘heirs generally of the said Adeline Butterfield,’ with the exception of George Butterfield. The court below decreed that Roy Gellatly, the adopted child of Adeline Gellatly (née Butterfield), by virtue of his adoption became the ‘child’ of the grantee, within the meaning of the language of the deed. This decree is earnestly opposed by the appellants on the ground that at the date of the conveyance in question, February, 1853, there was in effect no statute of adoption in this state, and that the grantor, therefore, could not and did not, in creating the remainder in the deed in the ‘child’ or ‘children’ of Adeline Gellatly, contemplate the adoption by her of a child, and that to so decree is, in effect, the creation of an artificial child, which at the date of the deed could have and did have no existence, in contemplation of law, or in the mind of the maker of the deed. The question presented for our decision is, who is entitled to the fee in the premises in controversy? And, in our view of the case, so far as the ultimate vesting of the fee is concerned, it does not matter whether or nor Roy Gellatly, the adopted child, is a ‘child,’ within the meaning of the deed, and entitled, as such, to the remainder upon the determination of the life estate. If it should be held that the circuit court committed no error in its finding, the remainder, as a matter of course, vests in Roy Gellatly. If, however, it be conceded that that finding, in so far as it holds Roy Gellatly a ‘child,’ within the meaning of the deed, is erroneous, still, in our opinion, he must take the fee as ‘heir generally’ of Adeline Gellatly, under the second aspect of the contingency in the deed. Appellants and their alleged co-tenants, if entitled to the fee at all, must be the ‘heirs generally’ of Adeline Gellatly. Their estate as such, prior to her death, would have been but a mere expectancy, contingent upon her death without child or children in whom the remainder should vest, and in no sense a vested right. It is well settled that a mere expectation of property in the future is not a vested right, and may...