21 N.E.2d 563 | Ill. | 1939
Joseph Simons Sr., and Flora Simons, his wife, conveyed one hundred sixty acres of land to Jennie Donovan in 1910, in trust for twenty-one years, and at its expiration "to Jennie Donovan and the heirs born of her body in fee simple." Jennie Donovan had twelve children, all of whom were living when the trust terminated in 1931. Prior to the expiration of the twenty-one year period, Mrs. Donovan and five of her children executed first and second mortgages to the Illinois State Bank, of Assumption, Illinois, mortgaging and conveying all their rights and title acquired under the deed from Simons. After the trust terminated, the receiver of the bank foreclosed both mortgages and purchased the mortgagors' interests in the property at the foreclosure sale, receiving therefor a master's deed. By virtue of this deed the receiver claims a fee simple in an undivided six-thirteenths of the property, and brought this suit for partition. Jennie Donovan and her twelve children were made defendants. A guardianad litem was named for two incompetents. The guardian answered, but all other defendants defaulted. The circuit court of Christian county granted partition and ordered the property sold. From this decree involving a freehold, the present direct appeal was taken.
Our decision, here, depends upon the construction given the clause in the deed conveying the legal title "to Jennie Donovan and the heirs born of her body in fee simple." The circuit court held that at the termination of the twenty-one-year trust, Jennie Donovan and her then living children, under the deed, became tenants in common in fee simple. Appellants contend the deed created a fee tail estate which *460 by statute (Ill. Rev. Stat. 1937, chap. 30, par. 5) was converted into a life estate in Jennie Donovan with remainder in fee simple to the heirs of her body, and since Jennie's "heirs" cannot be determined until her death, the land can not be partitioned at the present time.
In most American jurisdictions estates tail are not favored because of the delay in the vesting of title. (Dick v. Ricker,
It is urged that even if the deed does not create a common-law fee tail the estate cannot be partitioned at this time because the "heirs" of Jennie Donovan, who are to share with her in the fee simple estate, cannot be determined until her death. This view entirely loses sight of the fact that throughout the entire instrument the grantors referred to Jennie Donovan and her "children" then in being or born during the twenty-one year period, using the words "Jennie Donovan and the heirs born of her body in fee simple" only once near the end of the deed. In our judgment the word "heirs" was not used in its narrow or technical sense. If so interpreted, the deed would give the entire fee to Jennie, and her children would take nothing, since a deed to a living person and the heirs of his body is void as to the heirs.(Duffield v. Duffield,
Each of the appellants in this case was entitled to an undivided one-thirteenth interest in the real estate, as tenants in common. The circuit court correctly held that appellee, as purchaser of the interests of Mrs. Donovan and the five children who joined in the mortgages, became the owner of their undivided six-thirteenths' interest and was entitled to partition.
The decree is affirmed.
Decree affirmed.
Mr. CHIEF JUSTICE SHAW, dissenting. *463