Drury v. Drury

• Decision Date: 03 February 1916
• Docket Number: No. 10270.,10270.
• Citation: 271 Ill. 336,111 N.E. 140
• Parties: DRURY et al. v. DRURY et al.
• Court: Illinois Supreme Court

271 Ill. 336

111 N.E. 140

DRURY et al.

v.DRURY et al.

No. 10270.

Supreme Court of Illinois.

Dec. 22, 1915.

Rehearing Denied Feb. 3, 1916.

Appeal from Circuit Court, Whiteside County; Frank D. Ramsay, Judge.

Appeal by Lydon R. Drury and others against Walter C. Drury and others. From a decree for plaintiffs, defendants appeal. Reversed and remanded, with directions.L. T. Stocking, of Morrison, and Elmer M. Liessmann, of Chicago, for appellants.

McMahon & Rogers, of Fulton, for appellees.

CARTWRIGHT, J.

On April 24, 1893, Richard Drury made his last will and testament and by the second and third clauses provided for his wife, Mary Drury, who afterward, as his widow, renounced the provisions made for her. The sixth clause was as follows:

‘Sixth. I give and bequeath to my granddaughter, Myrtle A. Drury, the life use of the following piece of land, to wit, [describing it], to have, hold, use and enjoy the same during her natural life. At her death the fee-simple title to all of said lands shall pass to and become vested in the heirs of her body, and in case of her death without a child or children the title thereto shall become so vested in my great-grandchildren, and all of said land so willed to her shall be subject to the payment of one-third of the rents, issues and profits thereof, after payment of taxes and repairs, to my wife, the said Mary Drury. And the said last-described piece of land, of about seventy-seven and 30/100 acres, shall be subject to the payment of one-half of such rents, issues and profits thereof to my daughter, Mary J. Huggins, during her life.’

The testator died on April 28, 1899, leaving Mary Drury, his widow, his children, Mary J. Huggins and William W. Drury, and his grandchildren, Myrtle A. Drury and Lydon R. Drury, children of his deceased son, Robert I. Drury, his heirs at law. When the will was made the testator had no great-grandchild, but at his death there was a great-grandchild, Gertrude M. Dineen, capable of taking the estate limited to great-grandchildren, and who died on or about November 8, 1899, during the continuance of the life estate. Myrtle A. Drury, the life tenant, died intestate about August 21, 1912, without a child or children. At the time of her death there were two great-grandchildren of the testator, Harriet A. Drury and Richard J. Drury, children of Walter C. Drury, a grandson; and Marian Drury, another child of Walter C. Drury, was afterward born. The appellees, Lydon R. Drury, Lily A. Beeken, and William W. Drury, three heirs at law of the testator, filed their bill in this case in the circuit court of Whiteside county for partition of the land described in the sixth clause, making the appellant Bessie May Drury, the present owner of any interest which passed to her deceased daughter, Gertrude M. Dineen, and the appellants Harriet A. Drury and Richard J. Drury, great-grandchildren of the testator who were living at the termination of the life estate, and others interested as heirs or otherwise, defendants. Bessie May Drury by her answer alleged that at the death of the testator Gertrude M. Dineen became the owner of the entire remainder after the life estate, contingent only upon the life tenant dying without a child, which contingent remainder descended to her father and mother and had become vested in her mother, said defendant. A guardian ad litem was appointed for the infant defendants, Harriet A. Drury, Richard J. Drury, and Marian Drury, and they answered by their guardian ad litem. The chancellor heard the evidence and entered a decree finding that the sixth clause of the will was void because in violation of the rule against perpetuities; that the lands descended to the heirs at law of the testator as intestate estate, subject to the dower of the widow, and appointing commissioners to assign dower and make partition. Bessie May Drury was allowed and perfected an appeal, and the guardian ad litem of Harriet A. Drury and Richard J. Drury also appealed in their behalf.

The rule against perpetuities is that no interest subject to a condition precedent is valid unless the condition must be fulfilled, if at all, within 21 years after some life in being at the creation of the interest. It is not enough that the contingent event upon which the estate is limited may happen, or even that it will probably happen, within the limits of the rule; but if it can possibly happen beyond those limits the interest is too remote and its creation prohibited by the rule. Howe v. Hodge, 152 Ill. 252, 38 N. E. 1083;Nevitt v. Woodburn, 190 Ill. 283, 60 N. E. 500;Lawrence v. Smith, 163 Ill. 149, 45 N. E. 259. The ground upon which it is claimed that the sixth clause is void under that rule is that, upon the death of the first taker without children, the great-grandchildren would include all children standing in that relation to the testator that might be born in the future, and the class to whom the remainder was limited could not be determined until the death of the last grandchild of the testator. Whether that is true depends upon the proper construction of the will. Myrtle A. Drury, to whom the life estate was...