Gehlbach v. Briegel
| Citation | 359 Ill. 316,194 N.E. 591 |
| Decision Date | 13 February 1935 |
| Docket Number | No. 22648.,22648. |
| Parties | GEHLBACH v. BRIEGEL. |
| Court | Supreme Court of Illinois |
OPINION TEXT STARTS HERE
Suit by Jacob Gehlbach against Gustav Briegel. From an adverse decree, defendant appeals.
Affirmed.
Frank K. Dunn, of Charleston, and Leland P. Miller, of Lincoln, for appellant.
Trapp & Trapp, of Lincoln, for appellee.
On April 30, 1888, Jacob Gehlbach, the father of the complainant (appellee), together with his wife, Louisa, conveyed to their daughter Henrietta Ann Briegel and Gustav Briegel, her husband, a quarter section of land in Logan county, Ill. The habendum in that deed is the source of the present litigation and contained the following language: ‘For and during their lifetime, then to the heirs of the body of our daughter, Henrietta Ann Briegel, and if she leaves no child or children surviving her, then to her heirs according to law.’ The grantor in that deed died six years later, leaving as his heirs twelve sons and daughters, including the complainant, and two grandchildren, the children of a daughter who died before him. Several of his sons and daughters who survived him have since died leaving children or grandchildren. Louisa Gehlbach, Jacob's widow, died May 9, 1899, and the daughter Henriettadied December 11, 1932. She never had any child or children, and there was therefore no surviving heir of her body. She left a will, which was proved and admitted to probate, and which devised all of her real estate to Gustav Briegel, her husband, who is the appellant in this case.
This litigation was started by the filing of a bill for partition by Jacob Gehlbach, a son of the grantor in the deed above mentioned, which sets forth the interests in the premises averred to be owned by each of the parties to the bill and alleges that all of those interests are subject to the life estate of Gustav Briegel. The prayer is for partition in the usual form. The defendants include all the numerous heirs of Jacob Gehlbach, Sr., the original grantor, and the bill sets forth the interests of those heirs, which are alleged to be identical with the interest of the complainant. The only adverse interest set forth is that of the defendant, Gustav Briegel, one of the grantees in the original deed, who claims that he is the sole owner in fee simple of the real estate involved. His general demurrer to the bill was overruled, a decree of partition was entered, and from that decree this appeal is taken.
The errors assigned are the overruling of the demurrer and the entry of the decree.
It is appellant's contention and theory that the deed conveyed an estate to Henrietta and Gustav Briegel for their joint lives, with the remainder in fee to Henrietta's surviving children, which remainder was contingent and never vested because of her never having had a child; that the words ‘heirs according to law,’ in the granting clause of the deed, ‘if she leaves no child or children surviving her, then to her heirs according to law,’ under the rule in Shelley's Case, are words of limitation and convey a remainder in fee to Henrietta, which was expectant on the termination of her life estate and contingent on the event which actually happened, of her death leaving no child or children surviving her; that the effect of the deed was to grant, first, a life estate to Henrietta and her husband, second, a contingent remainder to her children in fee, which never vested, third, a contingentremainder in fee to Henrietta which could not vest in possession until the determination of the preceding contingent estate, and therefore could not merge with the life estate until the event upon which it depended occurred; that these remainders were alternative and depended on the event of Henrietta dying with or without children; and that, when she died without children, eo instanti the contingent remainder passed to Gustav Briegel by virtue of her will and became vested in him in fee.
Appellee contends, and the trial court held, that the rule in Shelley's Case does not apply, and that any discussion of it is unnecessary to a decision of this case; that the deed created two life estates, with alternative contingent remainders; that the fee remained in Jacob Gehlbach, Sr., during his lifetime and in his heirs after his death, not vesting until the determination by the death of Henrietta Briegel of the contingency as to the ultimate taker. The question thus presented to us amounts to these two points: (1) Does the deed from Jacob Gehlbach, Sr., express a definite intent as to the devolution of this title with sufficient clearness to be readily ascertainable from the face of the instrument itself? And, if so, (2) does the rule in Shelley's Case, or any other rule of law, prevent that intent from being carried into effect?
On the first point we do not believe any serious doubt can be raised. To us it is clear that Jacob Gehlbach intended his daughter and son-in-law to have the use of this land during their lives and the life of the survivor of them. At this point in time-i. e., upon the death of the survivor-he wished the property to pass in possession as well as in fee to his daughter's children, the issue of her body, if she should have any who might survive to receive such title; this being the first aspect of the alternative contingency.It was further his wish that, if his daughter had no child or children or none surviving her, then that the property might descend in the Gehlbach blood, giving to her surviving husband only such portion as the laws of descent might provide. Our conclusion on this point is not disputed by the briefs of either party. It is contended, however, that the rule in Shelley's Case, which has always been recognized as in derogation of the intent of a grantor or testator, prevents this result; that by the operation of that rule the fee to the remainder pending the determination of the contingencies controlling its final vesting in possession was theoretically in the daughter, lying there dormant, to merge instanter upon her death, by virtue of her last will and testament, with the continuing life estate of her surviving husband.
The remainders created in the deed to Henrietta Ann and Gustav Briegel were contingent remainders with a double aspect. AEtna Life Ins. Co. v. Hoppin, 249 Ill. 406, 94 N. E. 669;Farmer v. Reed, 335 Ill. 156, 166 N. E. 498. Where a grant is of a life estate with contingent remainder or remainders, the reversion is in the grantor and descends to his heirs at law. Peterson v. Jackson, 196 Ill. 40.63 N. E. 643;Bender v. Bender, 292 Ill. 358, 127 N. E. 22;Matthews v. Andrew, 290 Ill. 103, 124 N. E. 871;Belding v. Parsons, 258 Ill. 422, 101 N. E. 570;Bond v. Moore, 236 Ill. 576, 86 N. E. 386,19 L. R. A. (N. S.) 540. The rule in Shelley's Case does not apply where the remainder is contingent. Bails v. Davis, 241 Ill. 536, 89 N. E. 706,29 L. R. A. (N. S.) 937;Robeson v. Duncan, 74 N. J. Eq. 745, 70 A. 685;Cotten v. Moseley, 159 N. C. 1, 74 S. E. 454,40 L. R. A. (N. S.) 768;Westcott v. Meeker, 144 Iowa, 311, 122 N. W. 964,29 L. R. A. (N. S.) 947;Doyle v. Andis, 127 Iowa, 36, 102 N. W. 177,69 L. R. A. 953,4 Ann. Cas. 18; 4 Kent's Com. p. 218; Fearne on Contingent Remainders, p. 25; Perrin v. Blake, Hargrave's L. Tr. 503, 504; Campbell v. Rawdon, 18 N. Y. 412, 420. A contingent remainder is not devisable where the contingency is as to the person who is to take and not as to the event. Du Bois v. Judy, 291 Ill. 340, 349, 126 N. E. 104, 107;Drury v. Drury, 271 Ill. 336, 111 N. E. 140;Blackstone v. Althouse, 278 Ill. 481, 116 N. E. 154, L. R. A. 1918B, 230;Fitzgerald v. Daly, 284 Ill. 42, 119 N. E. 911; 4 Kent's Com. 261.
Appellant contends that the contingent nature of the remainder does not prevent it being devisable by will nor interfere with the operation of the rule in Shelley's Case. We are unable to agree with this contention where the contingency applies to the person who is to receive the title, and we have definitely so held. Thus, in Du Bois v. Judy, supra, we said: It is only when the identity of the remainderman is fixed and certain and the contingency appertains only to the uncertaintyof the event that a conveyance or devise of the contingent remainder may be effected. Kent states the rule that, if the person is not ascertained, contingent remainders can neither be devised nor descend at the common law (4 Kent's Com. 261), and this rule has been consistently followed by this court (Drury v. Drury, supra; Blackstone v. Althouse, supra; Fitzgerald v. Daly, supra). The contingency in the case we are considering was only as to the person or persons who might take. The event-i. e., the death of Henrietta Ann Briegel-was certain to occur, and until the moment of her death no one could in law be an ascertained person qualified to convey or devise the remainder to this property.
In order to conform to appellant's theory of the case, it would be necessary to enlarge upon and add to the rule in Shelley's Case. The effect of that rule, when it applies, is to vest the fee in the ancestor instantly and instantly to merge it with the freehold estate. If it does not apply in this manner, it cannot apply at all. The rule, stated in its most simple form, is that, if an estate of freehold is limited to A, with remainder to his heirs, general or special, the remainder, although...
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