Fuller v. Fuller

• Decision Date: 06 February 1925
• Docket Number: No. 16128.,16128.
• Citation: Fuller v. Fuller , 315 Ill. 214, 146 N.E. 174 (Ill. 1925)
• Parties: FULLER v. FULLER et al.
• Court: Illinois Supreme Court

315 Ill. 214

146 N.E. 174

FULLER

v.FULLER et al.

No. 16128.

Supreme Court of Illinois.

Dec. 16, 1924.

Rehearing Denied Feb. 6, 1925.

Suit by Smith Fuller against Carrie Fuller and others, in which defendant Lulu Reid filed cross-bill. From the decree, defendant Reid appeals.

Reversed and remanded, with directions.

Appeal from Circuit Court, De Witt County; Franklin H. Boggs, judge.

F. K. Lemon, Grover C. Hoff, and Arthur F. Miller, all of Clinton, and John A. Bagley, for appellant.

L. O. Williams and Herrick & Herrick, all of Clinton, for appellees.

HEARD, J.

This is an appeal by Lulu Reid from a decree of the circuit court of De Witt county in a suit brought by appellee Smith Fuller for partition, awarding partition and dismissing the cross-bill of appellant.

Amanda Klein, late of Clinton, Ill, departed this life testate on October 8, 1914, and by her will, among other things, provided:

‘Third-It is my will that my real estate, being lots three (3) and four (4), in block eleven (11), in the original town of Clinton, consisting of the Central Hotel, three store buildings facing north on Washington street and four store buildings facing east on Monroe street, together with vacant plat of land immediately east of said buildings, be divided by a line running east from the northwest corner of the north store building which faces west and extending east to a point due south of the east line of said Central Hotel, thence south to alley in said block, said east and west line being the north line of the new store buildings erected by me in the year 1913; that the said Central Hotel and three store buildings facing north, together with all lands in said block facing north and being north and east of said lines, I hereby give and devise to my beloved daughter Lulu Reid, to have and to hold for and during her natural life, then at her death it is my will that the same be given in fee simple to the heirs of her body or their descendants, per stirpes and not per capita: Provided, however, that said premises shall not be sold, mortgaged and encumbered during the life of the youngest child of the said Lulu Reid which may be living at the time of my decease.

‘Fourth-It is my will that all land and real estate south and west of said division lines, as described in the foregoing clause, shall be given to my beloved daughter Carrie Fuller for and during her natural life, and at her death, should she survive me, then it is my will that the fee simple title in the remainder vest in the heirs of her body or their descendants, and in case none such should be living at the time of her death, then in that event said premises shall descend to my legal heirs in the same proportion as though I had died intestate.’

Deceased left her surviving her husband, Matt Klein, and her daughters, Lulu Reid and Carrie Fuller, her only heirs at law. She was the owner of lots 3 and 4, in block 11, in the original town of Clinton. Carrie Fuller has no children, is without issue of her body, and was at that time past 50 years of age. Appellees, Carrie Fuller and Smith Fuller, being husband and wife, conveyed the premises sought to be partitioned on July 19, 1919, to Ralph Parker by warranty deed, a copy of which is attached to the original bill. On July 21, 1919, Carrier Fuller and Smith Fuller by warranty deed conveyed the same premises to Ralph Parker, stating therein that they were conveying the reversion in fee to unite it with the life estate, and prematurely destroy the contingent remainder in the heirs of the body of Carrie Fuller. Parker conveyed, by warranty deed of July 22, 1919, the same premises to Carrie Fuller, and on December 6, 1919, Carrie Fuller and Smith Fuller conveyed to Smith Fuller an undivided one-third interest in said premises. Appellees claim that thereby Smith Fuller became the owner of one-third interest, and Carrie Fuller became the owner of two-thirds interest in fee simple in said premises as tenants in common, and that they are the only persons interested in any manner in said premises.

The original bill made Robert H. Reid, son of Lulu Reid, and Elizabeth, Florence, and Robert Reid, Jr., only children of Robert H. Reid, defendants, but alleged that they had no right or title to said premises. The appellant answered the original bill and admitted the making of the deeds as alleged, but denied that the particular estate was merged in the reversion, or that Ralph Parker became the owner of said premises, or that Carrie Fuller and Smith Fuller are the only persons interested in the premises.

By the terms of the will, there being no person in esse at the death of testatrix who could take under the designation of heirs of the body of Carrie Fuller, the devise to the heirs of the body was necessarily contingent until the birth of an heir of the body of Carrie Fuller, and it was destructible, pending the contingency, by a merger of the life estate in the reversion in fee. Calvert v. Calvert, 297 Ill. 22, 130 N. E. 347. By the provisions of the cause two estates in remainder were created, one in the heirs of the body of Carrie Fuller and the other in the legal heirs of testatrix. The second is to take effect only in case the first does not, and is not in substitution of it.

By the terms of the will Carrie Fuller took a life estate, with alternate contingent remainders with a double aspect to the heirs of her body and to the legal heirs of Amanda Klein, who were Carrie Fuller and Lulu Reid, and at the same time the reversion in fee vested in Carrie Fuller and Lulu Reid. Friedman v. Friedman, 283 Ill. 383, 119 N. E. 321. This vesting was not affected by the fact that Carrie Fuller, to whom the life estate was devised, was also a reversioner. Kellett v. Shepard, 139 Ill. 433, 28 N. E. 751,34 N. E. 254.

Since the case of Bond v. Moore, 236 Ill. 576, 86 N. E. 386,19 L. R. A. (N. S.) 540, there is an unbroken line of decisions that where there is an estate for life with a contingent remainder, a conveyance which unites the life estate and the reversion before the happening of the contingency on which the remainder is to vest, destroys the remainder.

Where the life tenant conveys the property to a third person, and all the reversioners convey the property to the same person, each expressly for the purpose of destroying the remainder, the person to whom the conveyances are made will take the fee in the entire property divested of the remainder; but where such conveyances are made by the life tenant, and only a part of the reversioners, the grantee in the deed will take the fee to only such proportional undivided part of the property wherein the person making the deed had a reversionary interest. Where there are two reversioners, each having an undivided half interest in the reversion, and the deed is made by the life tenant and one reversioner, the contingent remainder is thereupon destroyed in an undivided half of the property. Lewin v. Bell, 285 Ill. 227, 120 N. E. 633; Kales on Estates and Future Interests (2d Ed.) 329. The contingent remainder in the other undivided one-half is not affected by the conveyance.

In accordance with the above rule the court decreed:

‘That the rights and interests of the parties in said premises are as follows: That said Smith Fuller is seized in fee simple of an undivided one-third interest in an undivided one-half interest in said premises, subject to the dower of said Mathias Klein therein; that Carrie Fuller is seized in fee simple of an undivided two-thirds interest of an undivided one-half interest of said premises, subject to the dower of said Mathias Klein therein, and that said Carrie Fuller is further seized of a life estate in the remaining one-half interest of said premises, also subject to the dower interest of said Mathias Klein; that said half of said premises in which said Carrie, Fuller has an estate for her natural life therein she is possessed of said life estate with a contingent remainder to the heirs of her body or their descendants, if she should have any living at the time of her death, subject to the dower interest of said Mathias Klein, and with a reversion in fee in said half interest last named in the appellant Lulu Reid in the event that Carrie Fuller should die leaving no children or descendants thereof living at the time of her death, and that none of the other defendants in this proceeding other than the said Carrie Fuller, Smith Fuller, Lulu Reid, and Mathias Klein have any interest, right, title, estate, or claim in and to the said premises which are the subject-matter of this suit, and that no other persons have any interest in the same in any way except as to the contingent remainder in the heirs of the body of said Carrie Fuller.’

A much more difficult question to determine is as to what property was devised by this provision. In appellant's cross-bill, among other things, she alleged a latent ambiguity in the description of the property devised to her and Carrie Fuller by the will, and alleged that by the devise of the Central Hotel to appellant she became seized of the life interest nor only in the building itself, but in the appurtenances thereto, together with the ground south of the hotel facing on Washington street.

The evidence shows such latent ambiguity. There are no store buildings facing east on Monroe...