Fleshner v. Fleshner

• Decision Date: 15 January 1942
• Docket Number: No. 26366.,26366.
• Citation: Fleshner v. Fleshner, 378 Ill. 536, 39 N.E.2d 9 (Ill. 1942)
• Parties: FLESHNER et al. v. FLESHNER et al.
• Court: Illinois Supreme Court

378 Ill. 536

39 N.E.2d 9

FLESHNER et al.

v.FLESHNER et al.

No. 26366.

Supreme Court of Illinois.

Nov. 24, 1941.

Rehearing Denied Jan. 15, 1942.

Appeal from Circuit Court, Moultrie County; William S. Bodman, judge.

Suit by Charles Fleshner against Paul Fleshner, Edna Young, the National Bank of Mattoon, and others to partition certain lands, wherein the National Bank of Mattoon filed a cross-complaint.From a decree entered in accordance with the prayer of the bank's cross-complaint, Edna Young appeals.

Affirmed.

Harry I. Hannah and Thomas R. Figenbaum, both of Mattoon, for appellant.

Kiger & Dilsaver, of Mattoon (George N. Gilkerson, of Mattoon, of counsel), for appelleeCharles Fleshner.

H. Ogden Brainard, of Charleston, for appellee National Bank of Mattoon.

STONE, Justice.

AppelleeCharles Fleshner filed a suit in the circuit court of Moultrie county to partition certain lands devised by the last will and testament of Thomas F. Fleshner, deceased.Charles Fleshner is his son, Thomas F. Fleshner died on June 5, 1922, leaving as his only heirs-at-law his widow and seven children.Appellee National Bank of Mattoon was made a defendant as claiming some interest in the land, and it filed its cross-complaint alleging that by mesne conveyances it is the owner of that share of the land devised to the appellant, Edna Young.

The part of the will of Thomas F. Fleshner important to the inquiry in this case, is the second clause thereof, which reads as follows: ‘Second: After the payment of such funeral expenses and debts, I give, devise and bequeath all of my property of every description, wherever situated to my beloved wife, Cena Fleshner, to have and to hold for and during her natural life.After the death of my wife, Cena Fleshner, I give, devise and bequeath, share and share alike, to my beloved children, namely, Charles Fleshner, Edna Young, Lelah Kees, Mary Philpott, Mabel Fleshner, Elmer Fleshner and Paul Fleshner, or the surviving heirs of their body, the residue of my estate.’

The life tenant, Cena Fleshner, died October 21, 1939.Further facts on which this suit is based are that the appellant, Edna Young, was adjudicated a bankrupt on June 9, 1936, and scheduled among her assets an undivided one-seventh interest in the lands involved in this suit, devised to her by her father.On petition, the trustee in bankruptcy was empowered to convey and he did convey appellant's undivided one-seventh interest in and to the premises to one Ownby, who, in turn, conveyed the same to the appellee bank.

The chancellor, on hearing, entered a decree in accordance with the prayer of the cross-complaint of the bank, and Edna Young brings the cause here for review contending that she took but a contingent remainder under the will of her father and that at the time she was adjudicated a bankrupt her interest was still contingent and so nothing passed to the trustee or by his subsequent deed to Ownby; that upon the death of her mother, the life tenant, she became seized in fee of an undivided one-seventh interest, and that she is entitled to have that interest so declared in this proceeding.On the other hand, the appellee bank contends, and the chancellor so found, that appellant became seized of a vested remainder in the real estate on the death of the testator, which passed by the deed of the trustee in bankruptcy.It is also argued by the bank that even though appellant's interest be contingent, it passed to the trustee in bankruptcy and from him by mesne conveyances to the bank.The question whether Edna Young, by the second clause of the will, took a vested or a contingent interest, is the first point to be considered.

The rules governing the determination of this issue have frequently been announced by this court.Section 13 of the Conveyances Act(Ill.Rev.Stat.1939, chap. 30, par. 12) provides that every estate in lands which shall be devised, although words formerly necessary to transfer an estate of inheritance be not added, shall be deemed a fee-simple estate of inheritance, if a less estate be not limited by express words, or do not appear to have been devised by construction or operation of law.It is a rule applicable to the construction of wills that the law favors the vesting of estates, and a remainder vested according to the legal meaning of the words of the devise is not to be held contingent by virtue of subsequent provisions of the will unless those provisions necessarily require it.Baley v. Strahan, 314 Ill. 213, 145 N.E. 359;Pingrey v. Rulon, 246 Ill. 109, 92 N.E. 592.

In Lachenmyer v. Gehlbach, 266 Ill. 11, 107 N.E. 202, 204, this court said: ‘If any estate, be it ever so small, is always ready, from its commencement to its end, to come into possession the moment the prior estates, be they what they may, happen to determine, it is then a vested remainder and recognized in law as an estate grantable by deed.It would be an estate in possession were it not that other estates have a prior claim; and their priority alone postpones, or may perhaps entirely prevent, possession being taken by the remainderman.The gift is immediate, but the enjoyment must necessarily depend on the determination of the estates of those who have a prior right to the possession.’

The rule as stated in Gray's Rule Against Perpetuities, section 108, and frequently announced by this court, is as follows: ‘If the conditional element is incorporated into the description of, or into the gift to, the remainder-men, then the remainder is contingent; but if, after words giving a vested interest, a clause is added divesting it, the remainder is vested.’

A pertinent application of this rule would be in a case of a devise to A for life, remainder to his children; but if any child dies during the lifetime of A, his share to go to those who survive, the share of each child is vested subject to being divested by its death.But if the devise be to A for life, remainder to such of his children as survive him, the remainder is contingent.Riddle v. Killian, 366 Ill. 294, 8 N.E.2d 629;Lachenmyer v. Gehlbach, supra;Smith v. Chester, 272 Ill. 428, 112 N.E. 325, Ann.Cas.1917A, 925;Brechbeller v. Wilson, 228 Ill. 502, 81 N.E. 1094.

Appellant argues that by the words of the second paragraph ‘after the death of my wife,’ the testator intended to postpone the vesting of any remainder to that time for the reason that the will expressly grants a life estate and does not make a devise subject to such life estate.It is also argued...