Owsley v. Harrison

| Ill. | Apr 18, 1901

Mr. Justice Magruder

delivered the opinion of the court:

The question, presented by the record in this case, is whether article 6 of the will of Carter H. Harrison, deceased, as the same is set forth in the statement preceding this opinion, violates the rule against perpetuities.

The rule prohibiting perpetuities requires that the absolute ownership of property must vest in some one within the period of a life or lives in being- and twenty-one years and nine months thereafter. (Waldo v. Cummings, 45 Ill. 421" date_filed="1867-09-15" court="Ill." case_name="Waldo v. Cummings">45 Ill. 421; Schaefer v. Schaefer, 141 id. 337). “No interest subject to a condition precedent is good unless the condition must be fulfilled, if at all, within twenty-one years after some life in being at the creation of the interest.” (Gray on Perpetuities, sec. 201; Howe v. Hodge, 152 Ill. 252" date_filed="1894-10-29" court="Ill." case_name="Howe v. Hodge">152 Ill. 252; Lawrence v. Smith, 163 id. 149).

Where the possibility exists that the fee would not vest within the limit fixed by the rule the devise is void for remoteness. In other words, if there is a possibility that a violation of the rule can happen, then the devise must be held void. (Bigelow v. Cady, 171 Ill. 229" date_filed="1897-12-22" court="Ill." case_name="Bigelow v. Cady">171 Ill. 229; Schaefer v. Schaefer, supra; Postv. Rohrdach, 142 id. 600; Eldred v. Meek, 183 id. 26).

An application of the rule against perpetuities, as above defined, to clause 6 of the will in this case leads to the conclusion that, under that clause, contingencies might have happened under which the estate would not have vested within the life or lives of persons in being at the death of the testator or twenty-one years thereafter. (Summers v. Smith, 127 Ill. 645" date_filed="1889-04-05" court="Ill." case_name="Summers v. Smith">127 Ill. 645).

The plain meaning of clause 6 of the will is that, in the event of the death of either of the testator’s children prior to the expiration of two years after his death, leaving issue surviving at the expiration of such two years, such surviving issue should take a life estate in one-eighth of the estate of the'testator, with remainder to the heirs of the body of such issue. Upon the happening of such contingency, the remainder in fee might not vest until the death of the issue of a deceased child of the testator born after his death; and, therefore, the vesting of the estate might be postponed during the life of a person not in being at the death of the testator. Such a postponement of the vesting of the estate is a violation of the rule against perpetuities, which requires that every estate granted must vest within a life or lives in being at the death of the testator, ór twenty-one years and nine months thereafter.

Under the sixth clause of the will the surviving issue of any child of the testator dying during the two years next following the death of the testator wpuld be substituted for such deceased child, and, consequently, would take a life estate in one-eighth of the testator’s estate, with remainder to the heirs of the body of such _ issue. The issue of such deceased child, so taking a life estate, might be born after the death of the testator. If the vesting of the remainder might be postponed under the will until the death of the issue born after the death of the testator, the rule against perpetuities would be violated.

We are, therefore, of the opinion that the decree of the circuit court correctly construed clause 6 of the will in this case; and correctly held that the one-half of the residue of the testator’s estate, not devised to his children in fee, descended at his death to his four children in equal shares as in case of intestacy.

Accordingly, the decree of the circuit court is affirmed.

Decree affirmed.