233 Ill. 39 | Ill. | 1908
delivered the opinion of the court:
The rule against perpetuities is thus stated: “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.” “No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.” (Gray on Perpetuities, sec. 201; Owsley v. Harrison, 190 Ill. 235; Lawrence v. Smith, 163 id. 149; Hotue v. Hodge, 152 id. 252.) If provisions of a testamentary character are such that under them a violation of the rule against perpetuities may possibly happen, then the devise of interests dependent upon such provisions is void. Eldred v. Meek, 183 Ill. 26, and cases cited supra.
The will in this case directs the payment by the trustee of all trust moneys in her hands to the child of Elizabeth Wickman that may survive her, on such child arriving at the age of thirty years. If there is more than one such surviving child, then the trustee is to divide the money equally among them on the youngest arriving at that age. Under the settled rules of construction the children of Elizabeth Wickman living whén the estate is to be divided, even those born after the death of the testatrix, if any, are included among those to whom payment is directed to be made. Their interest becomes vested only at the time of distribution. (Schuknecht v. Schultz, 212 Ill. 43; Eldred v. Meek supra; Scofield v. Olcott, 120 Ill. 362; Handberry v. Doolittle, 38 id. 202; Pitzel v. Schneider, 216 id. 87.) The interest of the children of Elizabeth Wickman, under the will, therefore does not necessarily fully vest within a life in being at the death of Ellen Quinlan, the testatrix, and twenty-one years. It is possible that Elizabeth Wick-man may marry and die leaving a child who would not reach the age of thirty years within the time required by the rule. The direction for payment to the children of Elizabeth Wickman is therefore void.
But the invalidity of the limitation to the grandchildren of the testatrix does not necessarily invalidate the bequest to the daughter. “If future interests created by any instrument are avoided by the rule against perpetuities, the prior interests become what they would have been had the limitation of the future estates been omitted from the instrument.” (Gray on Perpetuities, sec. 247.) “When a subsequent condition or limitation over is void, by reason of its being impossible, repugnant or contrary to law, the estate becomes vested in the first taker, discharged of the condition or limitation over, according to the terms in which it was granted or devised. If for life, it then takes effect as a life estate; if in fee, then as a fee simple absolute.” (Howe v. Hodge, supra; Nevitt v. Woodburn, 190 Ill. 283; Chapman v. Cheney, 191 id. 574; Brattle Square Church v. Grant, 3 Gray, 142.) Where effect cannot be given to all the provisions of a will, those parts may be sustained which conform to the rules of law if no violence is thereby done to the general intention of the testator. Lawrence v. Smith, supra; Eldred v. Meek, supra.
The testatrix in her will expressly stated that it was her primary purpose to provide for the welfare of her daughter and the latter’s children. Having four children,—two sons and two daughters,—she provided for a legacy of $4000 to one of the sons and then disposed of all the rest of the property for the benefit of one of the daughters and her children. This daughter was married, though after her mother’s death she obtained a divorce from her husband. She had one child, a boy sixteen years old, at the time of the testatrix’s death. Under the circumstances the testatrix thought best for the welfare of the daughter and her children to create a trust for their benefit, which was done by placing all the property in the control of the other daughter as trustee, subject to the provisions of the will. The provision for the benefit of Mrs. Wickman during her life violates no rule of law but accomplishes precisely the result desired by the testatrix. The provision for the grandchildren is too remote and cannot be given effect. They take nothing as heirs. They cannot take under the will. The testatrix has failed to give effect in her will to her intentions for their benefit, but the disposition of her property in favor of Mrs. Wickman is valid.
The final limitation to Nellie M. Burke, contained in clause D of the paragraph of the will under consideration, depends upon one of two contingencies. One is the death of Elizabeth Wickman without leaving any children; the other, the death of the last surviving child of Elizabeth Wickman before any of her children have attained the age of thirty years. The first is bound to occur, if at all, at Elizabeth Wickman’s death, and the limitation is lawful; the second may not occur until more than twenty-one years after her death, and is therefore within the rule against perpetuities. Where a devise is void for remoteness, all limitations ulterior to or expectant on such remote devise are also void. (1 Jarman on Wills, 283.) But where a limitation is to arise upon an alternative event, one branch of which is within and the other 'is not within the prescribed limits, it will take effect or npt, according to the event. (Ibid. 285.) So far as the gift over depends upon the single' event which may or may not happen within the required time, it is void, and the actual happening of the event within that time cannot make it good; but so far as it depends upon the alternative event, which must happen, if at all, within the limit of the rule, the gift over is good, and if that event actually does happen, the estate will take effect without regard to the consideration that upon a different contingency, which might or might not happen within the lawful limit, the limitation would be void for remoteness. Longhead v. Phelps, 2 W. Bl. 704; Leake v. Robinson, 2 Mer. 363; Monypenny v. Dering, 2 DeG., M. & G. 145; Cambridge v. Rous, 25 Beav. 409; Attorney General v. Wallace, 7 B. Mon. 611; Armstrong v. Armstrong, 14 id. 333; Jackson v. Phillips, 14 Allen, 539.
The limitation to Mrs. Burke if Mrs. Wickman dies leaving no child surviving her is valid, and if that event occurs will be given effect; but the alternative limitation, in the event of the death of Mrs. Wickman’s surviving children before reaching the age of thirty years, is invalid and cannot be given effect even though the event occurs within the year.
Mrs. Nellie M. Burke holds the title to the property involved, in trust for the payment of the legacy mentioned in the will and for the benefit of Mrs. Elizabeth Wickman during her life, pursuant to the terms of the will, and thereafter for her own benefit, if Mrs. Wickman leaves no children; but if Mrs. Wickman leaves a child surviving her, the remainder in the property has not been disposed of and will vest in the heirs of the testatrix. Until the death of Mrs. Wickman it cannot be known in whom the title will finally vest or whether complainant will have any interest therein.
He has therefore no right to a partition and his bill was rightfully dismissed for want of equity.
The decree will be affirmed.
Decree affirmed.
