107 Ill. 125 | Ill. | 1883
delivered the opinion of the Court:
The controversy in this case relates solely to the nature and extent of the estate taken, or to be taken, by the respective parties under the will of Henry Steiner, deceased. The decree of the circuit court adjudged that Mrs. Steiner is seized of an estate in fee simple to the undivided half of the lands in question; that she has full power to dispose of the same by deed or by will, and that the appellant, and others mentioned in the proviso in item 13 of the will, can have no vested interest in the property, unless Mrs. Steiner should, while still holding the property, die intestate, without lawful issue her surviving.
Appellant insists that “the words of the proviso constitute an executory devise, and, as such, limits the estate granted to Mrs. Steiner to a life estate, with power of appointment by will, and that in default of such appointment, the fee, or. the proceeds thereof, should go to the parties mentioned in the proviso,” she (appellant) to receive $5000, and that Mrs. Steiner “can not, by deed, transfer the fee and destroy the limitation over in a way not provided in the will.” On the other hand, it is claimed for appellees that the granting words in the will confer upon her a fee simple title, and that the condition contained in the proviso is repugnant to the estate to which it is annexed, and therefore absolutely void.
We can not approve the position taken by either of the jiarties. The estate of Mrs. Steiner can not properly be said to be merely a life estate, with power to dispose of the fee by will, for, by the terms of the will, the lands granted to her may, at her death, be inherited, in fee simple absolute, by heirs of her body. An estate held for the life of the tenant can never be inherited by heirs of the life tenant. Nor does Mrs. Steiner hold an estate in fee simple, for it is (by the will) in no event to descend to her collateral heirs, as a fee simple might. The limitation of the inheritance to the surviving heirs of her body excludes the idea of an estate in fee simple.
We recognize the rule of law that “conditions that are repugnant to the estate to which they are annexed are absolutely void, ” yet, in the construction of a will, we must consider all the words of the will, including all provisos and conditions, for the purpose of ascertaining what estate the testator intended to confer by the granting words of the will; and, weighing the words of the proviso, we think they do qualify the granting words, and do show that the testator did not intend to confer upon his wife a fee simple absolute in this property. Kent says: “Fee simple is a pure inheritance, clear of any qualification or condition, and it gives the right of succession to all the heirs generally.” And again: “It is an estate of perpetuity, and confers an unlimited power of alienation.” Such an estate, we think, was here granted to Mrs. Steiner, except in so far as the same is qualified by the words of the proviso, and we think the words of the proviso do qualify the estate granted, and reduce it below that of a fee simple estate; but this reduction below a fee simple absolute extends no farther than the express words of the jiroviso declare or necessarily imply. One of the qualities of a fee simple estate is the power to convey a fee simple estate to another, or, in the language of Kent, it “confers unlimited power of alienation. ” We find nothing in the words of the proviso to impair this unlimited power of alienation given by the granting words of the will. The words of the grant are so cogent that we can not doubt that it was the intention of the donor to give to her, throughout her life, a dominion over this property as full and as complete as if he had granted the same to her in fee simple absolute, without condition, limitation, restriction or qualification, and also had given her the power of disposition by will, and it was clearly the intention of the testator to give her an estate which might descend to her surviving lawful issue, and thereby become in them an estate in fee simple absolute. We have no doubt about the power of Mrs. Steiner to pass to a purchaser from her a fee simple absolute in the lands of the estate, subject, of course, to the charges imposed upon this property by the earlier provisions of the will. Under this will we think the interest of Mrs. Steiner in the lands of the estate of her deceased husband is not an estate in fee simple, but is “an estate in fee determinable, ” which estate may be perpetual, or may be determined by the death of Mrs. Steiner intestate, without surviving lawful issue, and without previous alienation of the land by her, and, in that contingency, limited over to the beneficiaries mentioned in the proviso in item 13 of the will. See 4 Kent’s Com. p. 8, et seq.
One of the peculiarities of a “fee determinable” is, that it may become a fee simple absolute upon the happening of any event which renders impossible the event or combination of events upon which such estate is to end. An example given of such “determinable fee” is, “where an estate is granted to a man and his heirs until the marriage of B, ” and it is said: “If the event marked out as a boundary to the time of the continuance of the estate becomes impossible, (as, by the death of A before his marriage,) the estate then ceases to be determinable, and changes into a simple and absolute fee; but until that time the estate is in the grantee. ” And it is added: “It is the uncertainty of the event, and the possibility that the fee may last forever, that renders the estate afee, and not merely a freehold.”
In addition to being invested with an estate in fee determinable, Mrs. Steiner is, by necessary implication from the words of the will, clothed with unlimited power of alienation of the projierty in fee simple absolute. Under this will, as we understand it, the determinable fee granted to Mrs. Steiner may be perpetual, and the same may be changed into a fee simple absolute, either by the sale and conveyance of the land by Mrs. Steiner in fee simple, or by the death of Mrs. Steiner leaving a will granting the land to a devisee, or by her death leaving lawful issue her surviving. On the other hand, the determinable fee held by her may end by her death intestate, and without lawful issue, while the estate is unchanged and remaining in her under -the will; and, in such case, the estate given her being thus ended, the contingent or conditional limitation over to appellant and others will take effect, and not otherwise. At present they have no vested interest in the property. The general rule that the determinable quality of the estate follows the transfers where the owner of a determinable fee conveys in fee, applies where such grantor is merely the owner of a base fee, and has no power other than that incident to the ownership of such an estate; but in this ease we hold that Mrs. Steiner not only takes a determinable fee, but is, by necessary implication, clothed with power to convey in fee simple absolute. Declining to exercise this power, she might, no doubt, convey to a grantee the determinable fee which she holds.
It was error in the circuit court to declare and adjudge that Mrs. Steiner’s interest is that of an estate in fee simple. In all other respects the decree is approved. For the error indicated the decree is reversed, and the cause remanded, with directions to the circuit court to enter a decree conforming to the views herein expressed. In fact, it seems probable that the judge of the circuit court held substantially the same views here expressed, and that the error in the record resulted from a want of care in the drafting of the decree.
Decree reversed.
