| Ill. | Feb 21, 1906
delivered the opinion of the court:
By the terms of the fifth item of the will of Peter Keister a particular estate was carved out of the fee, to continue until the death of Susan Keister and Julius Keister, and the death or re-marriage of Matilda Keister, and the arrival at legal age of all the grandchildren of the testator named in the will. .Upon the happening of these contingencies the particular estate was to determine, and the remainder to go to such of the grandchildren, being children of Julius Keister and Matilda Keister, as should be then living and the descendants of such as should be then dead, share and share alike, the descendants of any deceased child to take the share that their parent would have been entitled to had such parent survived the termination of the particular estate.
The first question which arises upon this record is whether the remainder was vested or contingent.
“A contingent remainder is one limited to take effect to a dubious and uncertain person or upon a dubious and uncertain event.—2 Blackstone’s Com. 168.” Thompson v. Adams, 205 Ill. 552" date_filed="1903-12-16" court="Ill." case_name="Thompson v. Adams">205 Ill. 552.
Here the events upon the happening of which the particular estate shall determine and the remainder take effect are certain, and all must occur, in the natural course of events, at some time, (unless, indeed, all the children of Julius and Matilda Keister should have died without reaching the age of twenty-one.) The remainder, however, is limited to dubious and uncertain persons. It cannot be ascertained until the termination of the particular estate what persons will come within the description of the remainder-men, as contained in the will. It is not similar to a remainder limited to a class, where the remainder vests in the persons belonging to such class in esse at the death of the testator, subject to open and let in any persons thereafter born, prior to the termination of the particular estate, who shall answer to the description of members of that class. In such case the remainder vests in the members of such class who are in esse at the death of the testator. It is definitely ascertained at that time that they or their heirs shall come into possession of some interest in the remainder at the termination of the particular estate, although the exact quantity of such interest cannot be ascertained until the termination of the particular estate. But in the case at bar, by the express terms of the will, if any of the grandchildren, who are children of Julius Keister and Matilda Keister, shall die before the termination of the particular estate, then his or her interest shall go to his or her descendants,—not as heirs of the deceased grandchild, but as devisees of the testator. The heirs of the grandchild so dying before the termination of the particular estate can in no event inherit any interest from such deceased person, because the interest has been, by the provisions of the will, transferred to another person upon the death of such grandchild.
In the will involved in the case of Ruddell v. Wren, 208 Ill. 508" date_filed="1904-04-20" court="Ill." case_name="Ruddell v. Wren">208 Ill. 508, the testator had given a life estate to his daughter, Elnora Alice Alkire, and had disposed of the remainder, so far as is necessary here to be shown, as follows: “And in case my said daughter shall die without leaving any child or children, then and in that event I give, devise and bequeath in equal parts, share and share alike, all my real and personal estate to my brothers and sisters, and in case any one or more or all of them shall be dead at the time of the death of my said daughter, then the share of such deceased brother or sister shall go to and be equally divided among his or her children, share and share alike.” In discussing the question whether the remainder to the brothers and sisters was vested or contingent, this court said (p. 515) :
“The remainder, which is devised to take effect upon the death of the life tenant, Elnora Alice Alkire, without leaving any child or children, is to dubious and uncertain persons. If the brothers and sisters of the testator, who were alive when he died, survive the life tenant, Elnora Alice Alkire, she leaving no child or children, they become entitled to the estate; but their title is conditional upon their being alive at the time of Elnora’s decease. If either one of the brothers and sisters is dead at the time of the decease of the life tenant, his or her share is to go to his or her children. As it is uncertain whether either one or more of the brothers .and sisters of the testator will die before the death of the life tenant, it is uncertain whether the shares of the brothers and sisters will belong to them, or to such children of theirs as may be alive when the life tenant dies.”
We think the reasoning of the court just quoted is decisive of the question presented in the case at bar, and that the remainder to the six grandchildren is a contingent one. The particular estate has not yet terminated because one of the contingencies, viz., the death or re-marriage of Matilda Keister, has not yet occurred.
It is insisted, however, that inasmuch as appellant has, by mesne and direct conveyances, obtained the interest of Matilda Keister and the interest of the six grandchildren of the testator in the land, the particular estate has been merged in the fee and has become extinct.
The interest which appellant acquired from the grandchildren was only such interest as they had at the time they executed deeds of conveyance. That interest was a contingent remainder. “In order to effect a merger there must be at least two estates in the same property which have vested in the same person.” (Clark v. Glos, 180 Ill. 556" date_filed="1899-06-17" court="Ill." case_name="Clark v. Glos">180 Ill. 556.) The remainder has not vested in the appellant, therefore there has been no merger.
Neither was the remainder accelerated by the conveyance of Matilda Keister of her interest. Cummings v. Hamilton, (ante, p. 480.)
It is urged that the court should have retained jurisdiction of the bill in order to remove the clouds from the title, which are alleged to exist.
It appears from the bill that some of the defendants are in possession of the land. The law is well settled that a court of equity is without jurisdiction to hear and determine a bill to remove a cloud from title, where the lands are in the possession of the defendants, unless some other ground of equitable cognizance appears from the bill and is established upon the hearing. (Toledo, St. Louis and New Orleans Railroad Co. v. St. Louis and Ohio River Railroad Co. 208 Ill. 623" date_filed="1904-04-20" court="Ill." case_name="Toledo, St. Louis & New Orleans R. R. v. St. Louis & Ohio River Railroad">208 Ill. 623; McConnell v. Pierce, 210 id. 627.) In this case no other matters of equitable cognizance could have been established upon the hearing, because the bill itself showed that complainant was not entitled to any relief on the other grounds set up by the bill. The court was therefore without jurisdiction to entertain that portion of the bill seeking to have clouds removed from the title.
It is also assigned as error that the court refused to permit appellant to file a supplemental bill setting up that since the commencement of this suit he had obtained possession of the real estate here involved. This was not error for the reason that the original bill failed to show any ground for relief, and it, therefore, could not be aided by a supplemental bill setting up matters that had arisen since the filing of the original bill. 15 Ency. of PI. & Pr. 15; Fahs v. Roberts, 54 Ill. 192" date_filed="1870-06-15" court="Ill." case_name="Fahs v. Roberts">54 Ill. 192; Miller v. Cook, 135 id. 190; Hughes v. Carne, 135 id. 519.
The decree of the circuit court will be affirmed.
Decree affirmed.