198 Ill. 414 | Ill. | 1902
delivered the opinion of the court:
The contention of appellants is, that the remainder created by the will in the lands in which Emory Boatman was the life tenant was a contingent remainder, for the reason it could not be known until the death of Emory in whom the remainder would vest. This view is erroneous. The testator had six sons and two daughters, all living at the date of the will and at his death. The second clause of the will charged George Boatman, one of his sons, with advancements in the sum of $4000, and Emory, another son, with advancements in the sum of $482. The third clause devised to Pet Dora, one of his daughters, real estate and personal property which the testator valued at $1500, and directs that she be charged with that amount in the division of his estate. The fourth clause disposes of the residue of his property. The provisions of this fourth clause are, that the residue of his property is devised and bequeathed to his sons and daughters, share and share alike, (the advancements to George and Emory and the devise and bequest to Pet Dora being deducted,) the share of Emory in the real estate to be an estate for life only, the remainder in fee to go to-the child or children of Emory surviving him, if any, but if he should die leaving no child or children surviving, then to “his brothers and sisters.” In the preceding portion of the same clause of the will the testator provided the residue of his estate remaining after all his sons and daughters had received an equal amount should be “divided equally among my eight children, share and share alike.” The eight childi'en of the testator were Emory and “his brothers and sisters.” The persons intended by the testator to be designated as remainder-men by the term “his brothers and sisters,” were those whom, together with ‘Emory, the testator had immediately before described as “my [his] children.” The same persons were in the succeeding sentence denominated by the testator as “my children,” and were authorized to set off to Emory “what would be his fair, share of said lands, to be by him held during his natural life,” etc., or in case “they” (the brothers and sisters) and Emory could not agree as to the allotment, should apply “to the proper court” for an order making" a fair and just allotment. At the time of the death of the testator Emory was living. The remainder-men in esse at that time were therefore those persons who at the death of the testator could answer the description of brother or sister to the life tenant.
The law favors the vesting of estates. Estates created by a testator will be regarded by the courts as vested estates, and not contingent, unless it is manifest that a contrary result was intended. (Chapin v. Crow, 147 Ill. 219.) Thus, we have held that a power given a life tenant to sell and convey the fee did not render the remainder contingent, but that it is a vested remainder, (Kirkpatrick v. Kirkpatrick, 197 Ill. 144,) and that though power is given to a trustee to pay or deliver over the estate to the life tenant, yet the remainder is vested, (Harvard College v. Balch, 171 Ill. 275,) and in case of a devise to one for life, with remainder over to his child or children, the remainder will vest in the children of the life tenant in being at the time of the death of the testator, but will open up to let in an after-born child, if any. Schaefer v. Schaefer, 141 Ill. 337.
A vested remainder has been defined as follows: “A vested remainder is an estate to take effect after another estate for years, life or in tail, which is so limited that if that particular estate were to expire or end in any way at the present time, some certain person who Was in esse and answered the description of the remainder-man during the continuance of the particular estate would thereupon become entitled to the immediate possession, irrespective of the concurrence of any collateral contingency.” (20 Am. & Eng. Ency. of Law, — 1st ed. — 838.) In 4 Kent’s Commentaries (13th ed. bottom p. 228,) the author says: “A remainder limited upon an estate tail is held to be vested, though it must be uncertain whether it will ever take place.” And in note d to the text it is said: “Thus, in case of a devise to A and the heirs of his body and in default thereof to B, or in the case of devise to B and after his death without male issue to C, and after his death without male issue to D, and if D die without male issue, none of these prior devisees being living, to E in fee, here the remainder, to B in the one case and to E in the other, is vested.”
The brothers and sisters of Emory living at the time of the death of the testator were the only persons in esse who could answer the description of remainder-men. The mere fact that children might afterward be born to Emory and might survive him would not render the interest of the brothers and sisters of Emory contingent. Each of said brothers and sisters, at the death of the testator, became seized of a vested remainder in the land in which Emory had a life estate. The remainder was liable to be divested by the birth of a child to Emory who should survive him, but it was not so divested. Clarence E. Boatman, husband of the appellee, was a brother of the said Emory, and at the time of the death of testator said Clarence E. became seized of a vested, undivided interest in fee in remainder in the lands in which said Emory had a life estate. The said Clarence died childless. Thereupon this undivided vested interest, under the statutes of descent, descended as follows: An undivided one-half interest to the appellee, the other undivided one-half interest to the brothers and sisters of said Clarence, subject to the dower interest of the appellee. The interests so descending by the statutes of descent, upon the death of Emory became vested interests in possession, in fee.
The appellant Clara B. Worsham, a sister of said Emory Boatman, prior to the death of said Emory executed a quit-claim deed to all her brothers except Emory, by which she conveyed and quit-claimed all of her interest, of every nature and kind, in the real estate of which her father died seized. The deed contained no words expressing an intention that it should extend to an after-acquired title. Mrs. Worsham therefore contends that upon the death of Emory she acquired an interest in the fee of the land which was not affected by the quit-claim deed which she had executed to her brothers. The chancellor correctly overruled her contention. At the time of the execution of the quit-claim deed she was seized of a vested remainder in fee in the lands of which Emory was the life tenant, and the quit-claim deed was effective to- transfer such vested interest to the grantees thereof.
The decree is affirmed.
Decree affirmed.