Cummings v. Hamilton

• Decision Date: 11 April 1906
• Citation: 77 N.E. 264,220 Ill. 480
• Parties: CUMMINGS et v. HAMILTON.
• Court: Illinois Supreme Court

220 Ill. 480

77 N.E. 264

CUMMINGS et

v.HAMILTON.

Supreme Court of Illinois.

Dec. 20, 1905.

Rehearing Denied April 11, 1906.

Appeal from Circuit Court, Jersey County; O. P. Thompson, Judge.

Bill by Alma C. Hamilton against Thomas H. Cummings and others. Decree for plaintiff, and defendants appeal. Reversed.George W. Herdman and Ed. J. Vaughn, for appellants.

Hamilton & Hamilton and Thomas F. Ferns, for appellee.

On May 15, 1896, Julia I. Whipple died seised in fee simple of 300 acres of land in Jersey county. She left a will by the second clause of which she gave to her husband, Mathew C. Whipple, ‘the rents, use, and possession, for and during his natural life,’ of said real estate. The sixth and seventh clauses of her will are as follows:

‘Sixth. I give, devise, and bequeath, after the death of my beloved husband, to Thomas H. Cummings, Sarah C. Van Horne, and Harry C. Cummings,’ the 300 acres of land, describing it.

‘Seventh. In case of the death of either Thomas H. Cummings, Sarah C. Van Horne, or Harry C. Cummings (prior to the death of my husband or prior to my decease) leaving a child or children, then in that case such child or children, or the descendants of such child or children, shall inherit the share of the real estate which would have vested in their parents under the sixth and last provision above made.’

After the death of the testatrix Mathew C. Whipple conveyed to Thomas H. Cummings, Sarah C. Van Horne, and Harry C. Cummings all his right, title, and interest in and to 120 acres of said real estate. Afterwards Harry C. Cummings and his wife executed and delevered to Alma C. Hamilton a warranty deed purporting to convey an undivided one-third interest in and to the said 300 acres of land, subject to the life estate of Mathew C. Whipple in 180 acres thereof. Both Harry C. Cummings and Sarah Van Horne have children living.

Alma C. Hamilton filed a bill in the circuit court of Jersey county, to the March term, 1904, for partition of the 300 acres of land. Thomas H. Cummings, Sarah C. Van Horne, and Mathew C. Whipple were made defendants to the bill. Afterwards, by amendment, the children of Harry C. Cummings and Sarah C. Van Horne were also made defendants. By the bill it was sought to partition the 300 acres equally between Alma C. Hamilton, Thomas H. Cummings, and Sarah C. Van Horne, subject only to the life estate of Mathew C. Whipple in 180 acres. The defendants Thomas H. Cummings and Sarah C. Van Horne answered part of the bill and demurred to the part not answered. The court heard the evidence and entered a decree for partition in conformity to the prayer of the bill, finding that Alma C. Hamilton, Thomas H. Cummings, and Sarah C. Van Horne were the owners in fee simple of the 300 acres of land, subject only to the life estate of Mathew C. Whipple in the 180 acres, and appointing commissioners to make partition of the premises. Thomas H. Cummings and Sarah C. Van Horne have appealed from that decree to this court, and urge that under the will of Julia I. Whipple they (appellants) and Harry C. Cummings took only a contingent remainder in the land, conditioned upon surviving Mathew C. Whipple, and that it was error to decree partition of any part of said land except the life estate in the 120 acres which had been conveyed by Mathew C. Whipple.

SCOTT, J. (after stating the facts).

Reading this will from the four corners thereof, as it speaks at the death of the testatrix, the devise to Harry C. Cummings was substantially this: If he survived the life tenant he was to take the property in fee; if he did not survive the life tenant the property was, upon the termination of the life tenancy, to vest in his children or their descendants, in fee, provided he died leaving children. The property was to pass to Harry C. Cummings upon an uncertain and dubious event, viz., if he survived the life tenant, and was therefore a contingent remainder. Haward v. Peavey, 128 Ill. 430, 21 N. E. 503,15 Am. St. Rep. 120;Thompson v. Adams, 205 Ill. 552, 69 N. E. 1. It is true that the gift to him by the sixth clause is by words of present devise, and not conditioned upon his surviving the life tenant, and the seventh clause devises the property to his child or children in the event of his dying prior to the decease of the life tenant, and the devise, so far as the provisions just mentioned are concerned, would therefore...