McIntyre v. Dietrich, 13216.

• Decision Date: 07 October 1920
• Docket Number: No. 13216.,13216.
• Citation: 294 Ill. 126,128 N.E. 321
• Parties: McINTYRE et al. v. DIETRICH et al.
• Court: Illinois Supreme Court

294 Ill. 126

128 N.E. 321

McINTYRE et al.

v.DIETRICH et al.

No. 13216.

Supreme Court of Illinois.

June 16, 1920.

Rehearing Denied Oct. 7, 1920.

Bill by Robert McIntyre and others against Jacob Dietrich and others. Decree of dismissal, and complainants appeal.

Affirmed.

Appeal from Circuit Court, Adams County; Albert Akers, Judge.

John T. Inghram and Carl E. Epler, both of Quincy, for appellants.

Govert & Lancaster, Wilson & Schmiedeskamp, and J. Leroy Adair, all of Quincy, for appellees.

CARTWRIGHT, C. J.

The circuit court of Adams county sustained the demurrer of the appellees to the bill filed against them in this case by the appellants, which alleged that Robert McIntyre devised a determinable fee in land in that county to his son James M. P. McIntyre and that such fee had been determined by conveyance of the devisee in violation of a condition of the will and a limitation over by way of executory devise to the lawful issue of the devisee surviving him had taken effect, and prayed for partition of the land. The appellants elected to abide by their bill and it was dismissed for want of equity, and they appealed.

The facts alleged in the amended bill and admitted by the demurrer are as follows:

Robert McIntyre, being the owner of a large amount of land in Adams county, died on March 12, 1876, leaving a last will and testament made on May 13, 1873, by which he devised to each of his seven children a separate portion of his land. Each devise was stated to be in fee simple, and the tenth clause, devising lands to James M. P. McIntyre, is as follows:

‘I also give, devise and bequeath unto my said son James M. P. McIntyre, in fee simple, the following described real estate, to wit [describing 305 acres of land], all of said lands being situated in the county of Adams and state of Illinois.’

By the fifteenth clause the testator declared a restraint upon the right of alienation as to each and all of the devises, as follows:

‘The bequest of the real estate aforesaid to my said respective children is made upon the express condition that they or either of them shall not sell, convey or mortgage the same, or any part thereof, prior to their respectively arriving at thirty years of age, and that any sale, conveyance or mortgage of the same, or any part thereof, made by either of them prior to his or her arriving at thirty years of age shall be absolutely null and void; and in case any of my said children shall previous to their arriving at thirty years of age, sell, convey or mortgage the real estate hereinbefore respectively bequeathed to them, or any part thereof, upon his or her death the part so sold and conveyed or mortgaged shall go and descend to the lawful issue of his or her body if any survive him or her, but if none survives him or her, then to his or her brothers and sisters him or her surviving, in equal parts.’

On December 29, 1879, James M. P. McIntyre, being then 21 years of age, with his wife, Persis C. McIntyre, by his warranty deed conveyed all of the real estate devised to him to his mother, the widow, Maria McIntyre, for the consideration of $3,000, and the other children and devisees on the same day executed their quitclaim deed of all said real estate to said Maria McIntyre. By subsequent conveyances the title conveyed to Maria McIntyre passed to other persons, who are included among appellees. James M. P. McIntyre died intestate on October 5, 1918, leaving a widow, Nellie McIntyre, and his children, James M. P. McIntyre, Jr., Mary E. Seliner, and Robert McIntyre, his only heirs at law. In 1919 Mary E. Seliner, with her husband, Frank Seliner, and Robert McIntyre, executed deeds of undivided one-sixth interests in the land to their uncle, Robert McIntyre, son of the testator. Mary E. Seliner died on March 25, 1919, leaving her husband, Frank Seliner, and her children, Warren Benjamin Seliner, Frank Seliner, Jr., and Mary C. Seliner, her heirs at law. The uncle, Robert McIntyre, claiming under the deeds to him, and the son, Robert McIntyre, filed the bill, and all other parties interested were made defendants.

Counsel for appellants present two propositions in support of the claim that the facts alleged in the bill entitled the complainants to the relief prayed for and that the court erred in sustaining the demurrer: First, that the will did not devise a fee simple but a fee determinable, which might have become a fee simple absolute if the devisee had not conveyed the land before he became 30 years of age, but upon that contingency happening the conditional limitation took effect, ending the determinable fee and passing the real estate to his lawful issue surviving upon his death; second, that while a general and absolute restraint on the alienation of a fee simple is null and void as repugnant to the estate granted, yet a restraint to a limited extent or for a certain reasonable time is valid, and that the restraint on alienation until the devisee became 30 years of age was a reasonable limitation of time.

A base or determinable fee is such a fee as has a qualification subjoined thereto and which must be determined whenever the qualification annexed to it is at an end. It is a fee for the reason that it may last forever if the contingency does not happen, but it is debased because its duration depends upon collateral circumstances which qualify or debase it. Wiggins Ferry Co. v. Ohio & Mississippi Railway Co., 94 Ill. 83;Williams v. Elliott, 246 Ill. 548, 92 N. E. 960,138 Am. St. Rep. 254. It is a fee which may be defeated by some condition independent of the estate granted or devised, on the happening of which the fee will come to an end and the estate be lost. Such a fee may be granted by deed so long as the land is devoted to a particular purpose, or the title may go over by springing or shifting use, and it may also be devised by will with reversion to the testator's heirs or a valid limitation over by way of executory devise, and such a devise may be limited upon any collateral circumstance which is lawful and not opposed to public policy, such as a definite failure of issue, remarriage of a widow, or the like. Becker v. Becker, 206 Ill. 53, 69 N. E. 49;Cummings v. Lohr, 246 Ill. 577, 92 N. E. 970;Friedman v. Steiner, 107 Ill. 125;North v. Graham, 235 Ill. 178, 85 N. E. 267,18 L. R. A. (N. S.) 624, 126 Am. St. Rep. 189; Wiggins Ferry Co. v. Ohio & Mississippi Railway Co., supra.

The testator first devised to his son James M. P. McIntyre the lands in fee simple, and afterward imposed a condition that he should not convey or mortgage the same, or any part thereof, prior to his arrival at 30 years of age, and declared that any sale, conveyance, or mortgage of the same, or any part thereof, made by him prior to his arriving at 30 years of age, should be absolutely null and void, and in case he should make such a conveyance of real estate devised to him, or any part thereof, the land or part thereof so sold or conveyed or mortgaged should at his death go and descend to the lawful issue of his body, if any should survive him, but if none survived him then to his brothers and sisters surviving him, in equal parts. The estate was not devised to endure only until the happening of some contingency independent of the estate devised, but the devise was in fee simple, followed by a limitation over upon a breach of a condition which was to cut down and destroy the estate devised. The testator declared that a conveyance by the devisee should be absolutely null and void, which, if taken by itself, meant that his deed would convey nothing, but the devise over on breach of the condition was to take effect at his death, so that the apparent intention of the testator was that upon breach of the condition the estate of the devisee was to be reduced to a life estate, and the...