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No. 3-02-0816

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2003

JUSTICE LYTTON delivered the opinion of the court:

Plaintiffs, Jennifer and Kevin Dempsey, and defendant, IanDempsey, are the only surviving descendants of David Dempsey(David). Shortly after David's death, both parties petitioned thecircuit court to determine their interests in certain real propertydevised in his father Ralph Dempsey's will. The circuit courtfound that the conveyance created a contingent remainder in David'sheirs, which vested upon his death. Defendant appeals, arguingthat the remainder vested upon Ralph Dempsey's death, and that heis entitled to a larger share of the estate. We affirm.

FACTS

Ralph Dempsey died in 1956, leaving a will dated October 19,1955. Article Fifth of the will provided:

I give and devise all the real estate owned by me inFulton County, Illinois, (approximately 240 acres) asfollows:

(a) A life estate to my wife, Gertrude L.Dempsey.

(b) After the death of my said wife, GertrudeL. Dempsey, a joint life estate to my son,David Dempsey, and his wife, EvangelineDempsey, and for the lifetime of the survivorthereof.

(c) The remainder interest in said realestate, I give and devise to the heirs of thebody of my son, David Dempsey, share and sharealike, and in fee simple.

When Ralph Dempsey died, David had three children: Ian, Karen,and David Kevin. Ralph's wife Gertrude died in 1961, leaving Davidand Evangeline Dempsey with a life estate in the property. DavidKevin died in 1981 and was survived by plaintiffs Kevin andJennifer Dempsey, his two adopted children. Evangeline Dempseydied in 1984. Defendant's sister Karen died in 1998 and devisedher estate to Ian. David died in 1999, prompting this dispute overthe will. Plaintiffs and defendant are the only survivinginterested parties.

Plaintiffs filed a complaint for "declaration of rights" underRalph's will. Defendant filed a motion for summary judgment. Thecourt denied Ian's motion and ordered the remainder interestdistributed per stirpes to plaintiffs and defendant, with defendantto take a one-half interest and plaintiffs to take an undividedone-half interest.

ANALYSIS

The trial court determined the parties' rights as a matter oflaw, and we review its decision de novo. Arangold Corp. v.Zehnder, 204 Ill. 2d 142 (2003).

Defendant argues that Ralph Dempsey's will created a fee tailestate in David. Defendant notes that section 6 of the IllinoisConveyances Act converts the fee tail into a life estate in David,that, upon Ralph's death, vested in David's living children. See765 ILCS 5/6 (West 2000). Thus, defendant would be entitled to hisone-third share and the one-third share Karen conveyed to him uponher death, leaving plaintiffs with an undivided one-third share.

Plaintiffs respond that section 6 of the Illinois ConveyancesAct does not apply, that the remainder interests created by thewill were contingent, and vested upon the death of the life tenant,David. Because Karen predeceased David, plaintiffs assert that shenever had a vested remainder interest to convey to defendant, andthe trial court correctly divided the property. We agree.

I. The Fee Tail Estate

At common law, a fee tail was an estate of inheritance whichdescended to the heirs of a donee's body, or to a class of thoseheirs, and through them to like heirs in a direct line. Nave v.Bailey, 329 Ill. 235, 240 (1928). The estate continued in aregular order and course of descent for as long as the heirs orclass existed. Upon extinction of the specified issue, the estateterminated and reverted to the grantor. Nave, 329 Ill. at 240.

To better understand this dispute, it may be helpful to reviewa brief history of the fee tail. In medieval times, when landownership was the key to acquiring and maintaining wealth, powerfulfamilies sought a vehicle to permanently keep the land in thefamily, which would allow the primogenitary heir to control it, butwould also prevent him from alienating the land. Landowners couldcreate such an estate by conveying land "to A and the heirs of hisbody." J. Dukeminier and J. Krier, Property, 205, (14^th Ed. 1998).

The courts interfered, however, and decided that if issue wereborn to A, A could take a fee simple, thereby cutting off hisissue's inheritance rights in the land. C. Moynihan, Real Property38 (1962). The estate became known as a fee simple conditional -conditional upon having issue. Dukeminier, Property at 205.

After being pressured by wealthy landowners, Parliamentreplaced the fee simple conditional with the fee tail. The feetail caused land to descend to the grantee's heirs generation aftergeneration, and only expired when the grantor, the grantee, and allof the grantee's descendants were dead. The statute then providedthat land would then revert to the grantor's heirs, or to anothergrantee if specified in the original conveyance. The fee tailrequired use of familiar language: "to [A], and the heirs of hisbody." Dukeminier, Property at 205.

Property law in colonial America closely resembled Englishlaw, but revolutionaries such as Thomas Jefferson resented the feetail as a symbol of the hereditary aristocracy perpetuated by therule of primogeniture in England. Dukeminier, Property at 207. Opposition to the fee tail grew in the decades following theAmerican revolution. Throughout the nineteenth century, manystates enacted legislation that abolished the fee tail estate. Moynihan, Real Property at 41-43. The Illinois legislatureabolished the fee tail in 1827 when it passed the IllinoisConveyances Act (765 ILCS 5/1 et. seq). See Moore v. Reddel, 259Ill. 36, 43 (1913).

II. The Illinois Conveyances Act

Section 6 of the Illinois Conveyances Act provides that whena grantee takes an ownership interest that would have been a feetail at common law, the estate is statutorily converted into a lifeestate in the grantee, with the remainder in fee to the grantee'schildren. 765 ILCS 5/6 (West 2001). If the grantee has nochildren, the remainder is contingent until a child's birth. Ifthe grantee already has children, the remainder is vested, subjectto reopening for any after-born children. Doney v. Clipson, 285Ill. 75 (1918).

Here, we must determine whether Ralph Dempsey's will wouldhave created a fee tail at common law. If so, section 6 of theIllinois Conveyances Act would apply, and the remainder would havevested upon the birth of David's children; in that case, KarenDempsey's devise of her interest to defendant would have been avalid transfer of her one-third share. If no fee tail is created,then section 6 does not apply and common law controls the time atwhich the remainder vested.

Ralph Dempsey's will devised his estate "to the heirs of thebody of my son *** share and share alike, and in fee simple"(emphasis added). The addition of these last three words destroysthe possibility of creating a fee tail. Peters v. Gebhardt, 6 Ill.2d 534, 544 (1955); Benson v. Tanner, 276 Ill. 594, 596 (1917). The fee tail prevented any "tenant in tail" from cutting off therights of other issue or the original grantor. By giving hisdescendants a fee simple estate, Ralph Dempsey forfeited theabsolute right to reverter. Peters, 6 Ill. 2d at 544. Thus,contrary to the premise of the fee tail, his descendants had thepower to cut off the rights of their issue and the right ofreverter in the original grantor. By conveying the estate in feesimple, no matter how far down the lineal chain the conveyance maybe, the fee tail is destroyed.

Because the estate is not a fee tail created by common law,section 6 of the Illinois Conveyances Act does not vest the estateupon the birth of David's children.

III. The Remainder at Common Law

Absent application of the fee tail estate and the IllinoisConveyances Act, we are left with the plain language of the will. The devise gives a life estate to David, with the remainder to theheirs of his body in fee simple. To determine whether thatremainder is contingent or vested, we look to the common law. Aetna Life Insurance, Co. v. Hoppin, 249 Ill. 406 (1911)

A remainder is contingent when it is conditioned upon thehappening of an event. Oak Park Trust & Savings Bank v. Baumann,108 Ill. App. 3d 322 (1982). Since no one can be the heir of aliving person, heirs cannot be ascertained until that person'sdeath. People v. Emery, 314 Ill. 220, 225 (1924). In other words,becoming an heir is contingent upon the death of the ancestor. Consequently, the terms "heirs of the body" must create acontingent remainder:

Future estates, unlike present interests, may be limitedto persons who are not ascertained or who are not evenin existence, provided there is a present particularestate to sustain the remainder and the grantee shall bein existence when the time arrives for the enjoyment ofthe estate. Such an estate is a contingent remainder***. A conveyance for life with remainder to heirs orheirs of the body of a living person creates acontingent remainder. Aetna Life Insurance, Co., 249Ill. at 413-14 (emphasis added).

Illinois courts have consistently construed the remainder to becontingent when the fee tail does not apply. See Aetna, 249 Ill.at 415 (holding that when the devise is uncontrolled by statute andthe remainder is conveyed to the heirs of a person's body, theremainder is contingent until that person's death, at which timeheirs can be ascertained); see also Spicer v. Moss, 409 Ill. 343(1951).

Defendant argues that two Illinois Supreme Court cases, Barker v. Walker, 403 Ill. 302 (1949) and Moore v. Reddel, 259 Ill.36 (1913), support his contention that the remainder vested uponthe birth of David's first child. In reviewing conveyancessimilar to the one here, Barker and Moore both held that theremainder vested upon the birth of the grantee's first child.However, both cases were decided within the context of section 6 ofthe Illinois Conveyances Act. In this case, we have alreadydetermined that the conveyance is not subject to the restrictionsof section 6. Thus, Barker and Moore do not control.

The remainder is contingent and vested upon David's death. Atthe moment of David's death, his heirs were determined. The trialcourt correctly ruled that the estate be distributed per stirpes,with defendant taking a one-half share, and plaintiffs, throughtheir father, taking a one-quarter share each.

IV. The Presumption in Favor of Early Vesting

Defendant also urges this court to reverse the trial courtbased on Illinois' presumption in favor of early vesting of futureinterests. This presumption only applies, however, if a later timefor vesting is not apparent from the express provisions of thewill. Colgan v. Sisters of St. Joseph of Carondelet, 237 Ill. App.3d 579 (1992). Our supreme court has stated that a conveyance forlife with remainder to heirs of the body of a living person createsa contingent remainder. Aetna, 249 Ill. 406. Thus, in this case,the remainder is contingent as a matter of law, and does not vestuntil the grantee dies and the heirs can finally be determined. Weneed not look to presumptions to reach the correct result.

CONCLUSION

The judgment of the circuit court of Tazewell County isaffirmed.

Affirmed.

McDADE, P.J., and SCHMIDT, J., concur.