Carr v. Hermann

• Decision Date: 22 May 1959
• Docket Number: No. 35156,35156
• Citation: 73 A.L.R.2d 462,16 Ill.2d 624,158 N.E.2d 770
• Parties: , 73 A.L.R.2d 462 Melvin J. CARR, Appellant, v. Clarence HERMANN et al., Appellees.
• Court: Illinois Supreme Court

Page 770

158 N.E.2d 770

16 Ill.2d 624, 73 A.L.R.2d 462

Melvin J. CARR, Appellant, v. Clarence HERMANN et al., Appellees.

No. 35156.

Supreme Court of Illinois.

May 22, 1959.

Lindauer, Lindauer, Pessin & Nieman, Belleville, for appellant.

Meryl T. Schroeder, Mascoutah, John T. Thomas, and Wilbur E. Krebs, Belleville, for appellees

DAILY, Chief Justice.

A complaint for partition of a 183-acre farm was filed in the circuit court of St. Clair County by the plaintiff, Melvin J. Carr, who claimed a 1/21st interest therein as executory devisee under the will of Peter Hermann, deceased, and some 35 parties, including the executors of the William Hermann estate, the St. Paul's Evangelical Church of Freeport, and other descendants and devisees of Peter Hermann, were named as defendants. Certain of these parties filed a motion to dismiss the complaint on the ground that by its own allegations it showed plaintiff had no interest in the property, and upon hearing the lower court sustained the motion and dismissed the complaint. Upon direct appeal the sole question presented is whether plaintiff has such an interest as would warrant his instituting the present suit.

The complaint alleged that by a will executed in 1881, the said Peter Hermann provided for the division of his property among his eleven children so that upon the testator's death each would receive either cash or land worth $5,400, and as a part of this testamentary plan, one of such children, namely William Hermann, was given the 183 acres now in question (which was then valued by the testator at $6,400) upon condition that he pay $1,000 to his father's estate in order to equalize the shares. In 1903 a codicil was attached to this will which read as follows:

'In case my son, William Hermann, dies without any children or descendants of children and leaves a wife surviving him, then in that event, the property real and personal devised and bequeathed to him in this will, shall go to my remaining children or descendants of a child, the descendants of a deceased child taking the share of the parent, in equal shares except the surviving widow of my said son, William Hermann, if he leaves any, shall have from my estate the sum of Four Thousand Dollars in money. The word children herein shall be taken to mean children of his body.'

The complaint further alleged that Peter Hermann died in 1904 leaving surviving his children. Philip Hermann, Peter Hermann, Louis Hermann, Edward Hermann, William Hermann, Christina Schatte, Catherine Joseph, Emma Wilderman, Elizabeth Hermann, Julia Hermann, and Louise Hermann. In 1913, all right, title, and interest which Peter, Catherine, Phillip, Emma, and Louis had in the 183-acre tract was conveyed by warranty deed to William Hermann, who thereafter continued in possession of the property until he died testate in 1957, a widower without descendants surviving. By his own will, William Hermann directed that all his property be sold by his executors, and, after the payment of certain debts and bequests, that the residue pass to St. Paul's Evangelical Church of Freeport, Illinois.

The complaint also alleged that Peter Hermann's remaining five children who had not joined in the 1913 conveyance all predeceased William Hermann, and only two, namely Edward and Christina, left descendants who survived him. The plaintiff, Melvin J. Carr, is the only child of a predeceased daughter of Edward Hermann. The defendants, Lorraine Hermann, Lester Hermann, and Quido Hermann, are Edward's son and children of a deceased son, respectively. Adolph Schatte, Augusta Schatte, Elmer Gain, Edward Gain, Evelyn Thompson, and Ethel Reeves, defendants herein, are the descendants of Christina Schatte.

The plaintiff contends that upon the death of Peter Hermann in 1904, fee title to the 183-acre tract vested in William Hermann, subject however to being divested by the latter's death without children or descendants surviving, and that when William Hermann so died in 1957, title passed to the then remaining descendants of Peter Hermann, the original testator. On the other hand, the defendants insist that under the terms of Peter Hermann's codicil, divestiture was to have occurred only if William Hermann died (1) without children or descendants and (2) leaving a wife surviving. They argue that since William Hermann died a widower, the second contingency did not occur and the property therefore passed to his executors in accordance with the latter's will.

Where, as in the present case, a devise is made to one person but upon the happening of a certain contingency the title immediately passes to another, a base or determinable fee is created in the first taker subject to an executory devise which may either ripen or fail depending upon whether the specified event occurs (Fifer v. Allen, 228 Ill. 507, 81 N.E. 1105), and where the gife over is contingent upon, not one, but two separate events, both must happen before divestiture takes place. Illinois Land and Loan Co. v. Bonner, 75 Ill. 315; 96 C.J.S. Wills § 721; 57 Am.Jur., Wills, sec. 1246; 3 Page on Wills, Lifetime Edition, sec. 1282. As stated in the last cited authority: 'A gift over on the death of the first taker unmarried and without issue fails if he dies married but without issue, as does a gift over on the death of the first taker without issue and intestate where he dies without issue but leaving a will. A gift over if one should die leaving a wife and lawful issue fails if he dies leaving a wife but no issue * *...