Matthews v. Andrews
| Citation | 290 Ill. 103,124 N.E. 871 |
| Decision Date | 05 December 1919 |
| Docket Number | No. 12845.,12845. |
| Parties | MATTHEWS v. ANDREWS. |
| Court | Supreme Court of Illinois |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Henry County; Emery C. Graves, Judge.
Bill by Theodore A. Matthews against James H. Andrews. From a decree for complainant, defendant appeals. Reversed and remanded, with directions to dismiss the bill.
James H. Andrews, of Kewanee, pro se.
T. W. Hoopes, of Springfield, for appellee.
This is another case of the attempted destruction of contingent remainders. It was a bill for the specific performance of a contract which set out the complainant's title to the land in controversy derived through the will of Simeon Matthews, who owned the land at the time of his death. The will was admitted to probate October 10,1891, and after devising certain real estate to Minerva Matthews, the testator's wife, devised the quarter section of land in controversy to Theodore Augustus Matthews for life--
‘and upon the death of the said Theodore Augustus Matthews leaving children or descendants, then in that case I give and devise the quarter section of land lastly described in this the third item to the child or children, or their descendants, of the said Theodore Augustus Matthews, and in the event that the said Theodore Augustus Matthews should die leaving no child or children or their descendants, in such case, after the death of said Theodore Augustus Matthews, I give and devise the said tract in this the third item named to Rhoda Eliza Elwell, my youngest sister, of Springfield, Massachusetts.’
The will devised certain other real estate, and its fifth clause is as follows:
‘I give all my personal estate, together with the rest and residue of my lands or other estate, unto my said wife, Minerva Mattews.’
Theodore Augustus Matthews was the grandson of the testator and his only heir. On December 9, 1918, he conveyed the land by quitclaim deed to Virginia L. Matthews, his wife, reciting the purpose to convey the life estate which the grantor had as devisee under the will of Simeon Matthews, and also the reversion, so that the life estate would merge in the reversion and be prematurely determined, and the contingent remainders created by the will would be destroyed. On the same day Virginia L. Matthews reconveyed the land to her husband by quitclaim deed, and he entered into a written agreement for the sale of it to James H. Andrews. Upon the tender of a conveyance by Matthews and his wife, Andrews declined to accept it on the ground that Matthews did not have a merchantable title in fee simple. The answer of the defendant denied that the complainant had a merchantable title in fee simple. The cause was heard on the bill and answer, the court entered a decree of specific performance, and the defendant appealed.
It is the position of the appellee that the reversion descended to him as the sole heir of the testator, and that by the conveyance of both estates to his wife the life estate was merged in the fee, and the contingent remainders were destroyed.The appellant's claim is that the reversion in fee did not descend to the appellee, but that the fee, subject to taking effect of the contingent remainders, was devised by the fifth clause of the will to the testator's wife, and that the deed from the appellee to his wife conveyed only the appellee's life estate. The only question in the case, therefore, is whether the residuary clause devised the fee subject to the happening of the contingency upon which one or the other of the contingent remainders would vest. The appellee contends that it is void for uncertainty. The testator in the same sentence gave all his personal property to his wife; therefore the appellee argues that ‘the rest and residue of my lands or other estate’ does not apply to personal property but to lands or other real estate in the alternative-that is, to lands or incorporeal hereditaments, being uncertain as to which is meant. There is no uncertainty, the intention being to give the residue, whatever its character may be.
Where a contingent remainder is created by a will, and the fee is not otherwise disposed of during the time until the happening of the contingency, such fee descends, in the meantime, to the testator's heirs, and when the contingency happens it opens to let in the remainder. Peterson v. Jackson, 196 Ill. 40, 63 N. E. 643;Harrison v. Wealther by, 180 Ill. 418, 54 N. E. 237;Bates v. Gillett, 132 Ill. 287, 24 N. E. 611;Bond v. Moore, 236 Ill. 576, 86 N. E. 386,19 L. R. A. (N. S.) 540; 4 Kent's Com. 257; Gray on Perpetuities, § 11. This proposition is the foundation of the appellee's case,...
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