111 Ill. 144 | Ill. | 1884
delivered the opinion of the Court:
The bill in this ease is framed on the theory the lands of which Robert Franey died seized became intestate property on the filing of the renunciation of the benefit of his will by his widow, as was done, under the provisions of the statute, and that in consequence of such renunciation his widow would take one-half of the real estate absolutely, and the other half would go to his heirs at .law, of whom complainant Mary Brown alone sustained that relation to the testator. If this view is sustained, it Would exclude the devisee in the will from any interest whatever in the lands involved in this litigation.
It is assumed in support of this view of the case, the estate created by the will in the devisee was a contingent remainder, and was lost or was defeated when the life estate of the widow7 was terminated by the renunciation of the will. The argument in support of the position taken is, the life estate created by the will in the widow, and the remainder to John Ledwith, constituted but one estate, in law, and it is said, as the remainder depended upon the life estate for support, and by the act of the widow7, there was no precedent estate, — “the thing supported must fall to the ground if once its support be severed from it. ” The reasoning on this branch of the case is subtle in the extreme, and so in the books that treat of the definition of estates at common law, the lines of distinction between vested and contingent remainders are so nicely drawn they are sometimes difficult to trace, and it is said in some instances a vested remainder would seem to possess the essential qualities of a contingent estate. But divesting the subject of all technical learning, it is seen the simplest form of an estate vesting in succession at the same moment, is that of a fee simple devised to one for life, and after his decease to another in fee. The first is an estate in possession, and the latter is a vested remainder. A vested remainder is where the estate is fixed to remain to a determinate person after the particular estate is spent or comes to an end. A contingent remainder is where the estate in remainder is limited to take effect either to a dubious and uncertain person or upon a dubious and uncertain event, so that the particular estate may chance to be determined and the remainder never take effect. The principle is, the precedent particular estate and the remainder are one estate, in law, and hence the rule is, they must subsist and be in esse at one and the same time, either during the continuance of the first estate, or at the very instant when that is determined, so that no other estate can come between them. (2 Blackstone’s Com. 168.) It will be seen the will in this case creates a vested remainder in the devisee, within these common law definitions. The estate devised was a fee simple. A life estate was devised to the widow, and the fee to Led-with. On the death of the testator both estates became vested. The fee vested in the devisee during the continuance of the precedent particular estate, and that is all the law requires to make it a vested remainder. Had the widow never renounced the benefit of the will, it would not be insisted the fee did not pass to the devisee. It vested in him on the death of the testator and during the continuance of the particular estate which supported it. That was the condition for some time after the death of • the testator. It is true that as to one-half of the estate it was- subject to be divested at the election of the widow, which was done. That is consistent with law. An estate may vest in one, liable to be divested, for the benefit of another. This construction of the will finds support in the doctrine of Nicoll v. Scott, 99 Ill. 529.
- But the whole bill rests upon a mistaken theory. It is, that after the widow renounced the benefit of the will the estate devised was intestate property. Such is not the law. It is still testate property, and the statute has provided for equalizing bequests and legacies in cases where the widow renounces the will. That is a legislative construction of the statute, under which the will may stand. This is not a new question in this court. In McMurphy v. Boyles, 49 Ill. 110, a question closely allied to the one involved in this case was considered. The testator left considerable personal estate, and provided by his will the income of one-half of it should be paid to his wife during her life, and disposed of the other half. The widow in that case, as in this, renounced the benefit of the will. There were no children or descendants of any child; and the widow claimed the entire estate on the ground it was intestate property. It was held the will remained, notwithstanding the widow chose to decline its provisions in her favor, and that by no act of hers could it be annihilated and the estate of her husband be converted into intestate property. That is precisely the case here. Notwithstanding the widow declined the provisions of the will of her husband made for her benefit, his will must stand. The effect may be, and doubtless is, that the quantity of the estate devised may be lessened, but that does not prevent the remainder from passing to the devisee. It is still testate property, and is not subject to distribution among the heirs of the decedent, as is intestate property. In no view that can be taken could the property be divided among the heirs, and complainants’ bill was therefore properly dismissed.
The decree of the circuit court must be affirmed.
Decree affirmed*.
