delivered the opinion of the court:
Jane Blackstone died on April 30, 1865, leaving a last will and testament executed on March 13, 1865, which was admitted to probate in the county court of Kankakee county. She had taken and brought up from infancy two boys, John Smith and Lawrence McGill, (to whom she added the name Blaclcstone,) and a girl, Ellen Hartman, now Ellen Hartman Althouse, appellant. The testatrix had three brothers, William Glover, James Glover and Samuel Glover, and two sisters, Elizabeth Ray and Ann Glover. After providing for the payment "of her debts and funeral expenses she devised to John Smith Blackstone 240 acres of land and two timber lots. The third clause, under which this controversy arose, is as follows:
"Third—I give, devise and bequeath unto Lawrence McGill, known by the name of Lawrence Blackstone, (being brought up by me from infancy,) all these certain tracts or parcels of land situated in the county of Kankakee and State of Illinois and described as follows, viz.: The northeast quarter of section No. 18, in township No. 31, north of range No. 12, east of the third principal meridian; also the east half of the southwest quarter of section No. 7, in' township No. 31, north of range No, 12, east of the third principal meridian; álso lot No. 17 of subdivision of lot No. 14 of the west half of the Me-she-lce-ten-o reservation; and also lot No. 6 of the subdivision of lot No. 13 of the west half of the Me-she-lce-ten-o reservation, being in township No. 31, north of range No. n,.east of the third principal meridian, together with all the hereditaments and appurtenances thereunto belonging or in anywise appertaining; to have and to hold the premises above described to the said Lawrence Blackstone, his heirs and assigns forever: Provided, that should the said Lawrence Blackstone die without issue, then in that case all the lands bequeathed to him shall be sold by my executor hereinr after appointed and the proceeds thereof be" divided equally among my brothers and sisters and John Smith Blackstone and Ellen Hartman.”
John Smith Blackstone was executor of the will, and legacies were given to John Cooper, Ellen Hartman and Samuel GloVer, to be raised out of a sale of a 55-acre tract of land, and the balance of the proceeds of the tract was given in equal parts to the brothers and sisters of the testatrix. There were other bequests not material in this case. John Smith Blackstone, the executor, died in June, 1910. Lawrence McGill Blackstone died August 6, 1915, without issue, having never been married, leaving a will, by which he gave his property to legatees and devisees who would have been his heirs-at-law if he had died intestate, and all of the brothers and sisters of the testatrix died before the death of Lawrence McGill Blackstone, so that the appellant, Ellen Hartman Althouse, was the only one of the beneficiaries named in the third clause of the will who was living when the executory devise took effect. In 1869 the devisee, Lawrence McGill Blackstone, executed a deed of the lands described in the third clause of the will, to Simon P. Steward, and in 1874 Steward re-conveyed the lands. Lawrence McGill Blackstone allowed four acres of the land to be sold for taxes, and a sheriff’s deed was made to John Forsythe, who afterward, on November 18, 1874, conveyed the tract to Lawrence McGill Blackstone.
The appellee Mary A. J. Blackstone commenced this suit in the circuit court of Kankakee county by filing her bill against the appellant, Ellen Hartman Althouse, the heirs and devisees of the brothers and sisters of the testatrix, Jane Blackstone, and the heirs and devisees of Lawrence McGill Blackstone, praying for a construction of the third clause of .the will and the appointment of a trustee to sell the lands and divide the proceeds. She set up as the true construction of the will that she was entitled to one-seventh, Ellen Hartman Althouse.one-seventh, and the heirs, representatives and devisees of. the five brothers and sisters of the testatrix the remaining five-sevenths, which was to be distributed among them. The appellant, Ellen Hartman Althouse, by her answer denied that the complainant or any other person had any interest in the real estate or the proceeds thereof, but she claimed the whole as the sole surviving member of the class mentioned in the third-clause to whom the executory interest was limited, and alleged that there was no necessity for the appointment of a trustee. She also hied a cross-bill, alleging the death of all the brothers and sisters of Jane Blackstone prior to the death of Lawrence McGill Blackstone, and the rearing of herself by Jane Blackstone as a member of her family, and claiming ownership of the land as in her answer. The heirs and devisees of Lawrence McGill Blackstone answered the original bill and cross-bill, claiming to own the land by virtue of the tax deed and the deed by Simon P. Steward to Lawrence McGill. Blackstone, and they filed a cross-bill making the same claim. Answers to all the bills and cross-bills and replications thereto having been filed, there was a hearing, upon which the chancellor found as prayed in the original bill, and • entered a decree ordering the tax deed and Steward deed removed as clouds upon the title, dismissing the cross-bills of Ellen Hartman Althouse and of the heirs and devisee's of Lawrence McGill Blackstone and granting the relief prayed for in the original bill. From the decree Ellen Hartman Althouse prosecuted this appeal.
Jane Blackstone devised a fee in the lands to Lawrence McGill Blackstone but qualified the fee so devised by a provision that on the contingency of his death without issue the estate should go over to the executory devisees, to be converted into money and the proceeds" divided among them. Such an executory interest may be created to arise in the future and it needs no particular estate to support it. The estate created in Lawrence McGill Blackstone was a base or determinable fee, which came to an end when the executory devise took effect. (Fifer v. Allen,
The controversy between the appellant, Ellen Hartman Althouse, and the parties claiming as heirs and devisees of the brothers and sisters and John Smith Blackstone is whether appellant took the entire estate upon the death of Lawrence McGill Blackstone, as the sole surviving person to whom the executory interest was limited. An executory devise before coming into possession is never vested, but it is above the grade of a mere possibility and is regarded as a certain interest in the estate. If the persons to whom the estate is to pass are not ascertainable until the contingency happens the executory interest is not transmissible, because it cannot be known until the happening of the contingency in whom the interest will vest, but those entitled are then to be determined. If, however, the identity of the executory devisee, is certain and the object of the devise is fixed, so that upon the happening of the contingency the executory devisee will take the estate, the future interest is assignable and transmissible. That rule of law was declared in 1823 in the case of Ackless v. Seekright, Breese, 76, and it has never been departed from. In that case the testator gave all his property, real and personal, to his daughter, but provided that if she died before she came of age the estate was to go to his friend, George Lunceford. The testator died in 1806 and Lunceford died in 1808, during the lifetime of the daughter, who died in 1815 or 1816, under the age of twenty-one j^ears. The court said that at common law contingent remainders and executory devises were transmissible and would descend to the heirs of the persons to whom they were limited although they should die before the contingency happened, and held that George Lunceford had such an interest as descended to his heirs-at-law. The law as to a contingent remainder was recognized in Drury v. Drury,
One exception to the rule of law that executory interests are transmissible and descend to heirs is, as above stated, where the interest is contingent on account of the person in whom it will vest on the happening of the contingency. In that case the executory interest is not transmissible, because if there is no person answering the given description no interest has attached to anyone. Under that exception counsel for appellant contend that the executory devise to the brothers and sisters of the testatrix and John Smith Blaclcstone and Ellen Hartman was a gift to a class, the members of which were to be, ascertained when the devise should take effect in possession. If a gift is to a class, those members of the class 'who are in being when the gift takes effect will take all to the exclusion of predeceased members of the class, with the statutory exception in favor of a child or grandchild who shall die before the testator and where no provision is made for the contingency. (Brewick v. Anderson,
A devise is not a gift to a class where at the time of making it the number of devisees is certain and the share each is to receive is also certain and in no way dependent for its amount on the members surviving when the contingency happens. (In re Smith, 9 Ch. Div. 117; In re Kimberly,
The brothers and sisters were definitely ascertained when the will was made and were not to be ascertained at some future time, and they, with John Smith Blackstone and Ellen Hartman, did not come within any definition of a class of persons. The devise was therefore not a gift to a class and the executory interest was transmissible and descendible.
The decree is affirmed.
Decree '