32 N.E.2d 154 | Ill. | 1941
Appellee, Wirt Herrick, executor of the last will and testament of Edith M. Lafferty, deceased, brought suit in the circuit court of McLean county for specific performance of a contract in writing selling real estate to Ira D. Lain. The circuit court decreed the relief prayed, and appellant appeals to this court on the ground that a freehold is involved.
By written contract dated July 11, 1940, appellant agreed to buy and appellee agreed to sell the real estate involved for a consideration of $56,000. The contract, among other things, provided that an abstract showing merchantable title should be furnished to the purchaser. The abstract disclosed that appellee's title to a portion of *570 the premises was based upon a deed executed December 4, 1882, by James L. Crumbaugh and his wife to their daughter, Edith M. Lafferty. Appellee, the executor of the last will and testament of Edith M. Lafferty, executed the contract by virtue of certain powers set out in the will.
By the deed in question the grantors convey and warrant the property "to Edith M. Lafferty, daughter of said grantors, and to her children," etc. In addition to the granting clause the deed, following the description, contained this language: "If at any time thereafter should the grantors become destitute so as to need help, then and in that case the said grantee agrees to pay to the grantors the sum of one hundred sixty dollars per year. Said one hundred sixty dollars to be demanded at the time said help is needed and if not demanded at that time said grantee shall not be bound to pay the same," etc. After the waiver of homestead clause an additional warranty appears: "With the appurtenances, and all the estate, title and interest of said party of the first part therein. And the said party of the first part does hereby covenant and agree with the said party of the second part that at the time of the delivery hereof the said party of the first part is the lawful owner of the premises above granted and seized thereof in fee simple absolute, that he will warrant and defend the above granted premises in the quiet and peaceable possession of the said party of the second part, his heirs and assigns forever, and that they are free from all encumbrances whatsoever." Edith M. Lafferty did not, at the time of the delivery of the deed nor at any time thereafter, have children.
Appellant contends that Edith M. Lafferty acquired only a life estate, and that upon her death the fee simple is vested in the heirs of the grantors by descent. The appellee contends that, by the deed in question, Edith M. Lafferty acquired a fee simple title to the property and, *571 therefore, a merchantable title in this respect was tendered to appellant.
An examination of the deed discloses that it purports to convey a present interest in the grantees named therein and contains no words of inheritance or procreation. Under such circumstances, we have frequently held that if a deed purports to create a present estate in possession to a certain grantee or grantees, then title will pass only to those who are in being at the time of the delivery of the deed.
In Faloon v. Simshauser,
A case similar in principle is that of Morris v. Caudle,
Our attention is called to the case of Frazer v. Board ofSupervisors,
Any doubt there might be on the subject is settled by an examination of Hartwick v. Heberling,
In view of the repeated decisions of this court, there is no merit in the contention of the appellant that the use of the word "children," in the deed under consideration, created an a mbiguity, or that the word was used in any special sense. Construed in its ordinary sense, the deed attempted to make a present grant to Edith M. Lafferty and any children she might have. Under well-settled rules of law, the persons not in being took nothing, and the fee was, therefore, vested in Edith M. Lafferty, which, under her will, enabled her executor to contract for the conveyance thereof.
The decree of the circuit court of McLean county is affirmed.
Decree affirmed. *574