CORNELL LAW LIBRARY ((nrn^U Statu ^rI|onI library Cornell University Library KFI1319.K14 Estates, future nterests. and illeaal c 3 1924 024 669 420 Cornell University Library The original of tiiis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024669420 Estates, Future Interests and Illegal Conditions and Restraints In Illinois by i Albert M. Kales of the Chicago Bar Chicago Oallaghan & Co. 1920 ■ DEDICATED TO THK, MEIHOBX OF JOHN CHIPMAN GRAY ; "He Was the Better Teacher foe Being in Active 'RACTICE; He WAS THE BETTER LAWYER FROM THE LEARNING i'^HiOH Came from Teaching Law." "It is a great mistake to be frightened by the ever increasing num- ber of reports. The reports of a given jurisdiction in the course of a generation take up pretty much the whole body of the law, and restate it from the present point of view. We could reconstruct the corpus from them if all that went before were buriied. " — ilr. Justipe Holmes in an address entitled "The Path, of the Law," 10 Barvard Law Seview, 457, 458. PREFACE The distinctions which must be taken in determining the legal attributes of Estates and Future Ihterests in the modern law are best appreciated and understood by considering their origin in the feudal land law and their development after the Statutes of Uses and Wills of Henry VIII. Some historical and introductory matter cannot, therefore, be avoided. It i?, how- ever, more advantageous to deal with the historical aspect of the subject by itself than to attempt to mingle with it a de- tailed analysis and exposition of the modem law. This volume, accordingly, commences with an historical introduction to the law of Estates and Future Interests. Any reasonably complete exposition of the modern law of Estates and Future Interests will be found to involve a great many questions on the construction of wills and settlements inter vivos. These cannot be handled satisfactorily without first de- termining the general principles of interpretation applicable to unilateral writings. The second book of the present work, therefore, deals with the law relating to the interpretation of writings — more especially wills. Then follows the main treatise on Estates and Future In- terests. The former subject is new. The latter is a rewriting and enlargement of the author's earlier work on Future In- terests, published in 1905. All the chapters have been enlarged and supplemented. The most considerable revision is in the chapter on Remainders. This has been entirely rewritten and many new topics added. The writer came to regard that chapter of the former work as quite inadequate. On the subjects of Estates and Future Interests all the cases decided by the Illinois Supreme Court and appearing in its reports up to and including the 287th volume, have been dealt with. A number of the author's law review articles, written originally with a view to the revision of the former work on Future In- terests, have been incorporated into the text.^ This wiU account for the fact that on some subjects the citation of cases is very complete and from ihany common law jurisdictions. On many 1 For a full liirt; of these, see post, p. liv. T VI PREFACE other special problems leading English' and American author- ities have been used, especially those collected in the writer's Case Book on Future Interests.^ It is possible that -where a belief in expositions of the "general common law" still pre- vails, it might be thojight that the present work had some claim to being a treatise on the general common law of- Es- tates and Future Interests. Always, however, in the present work, as in the former, the object in the use of materials from many jurisdictions has been to make clear the present state of the law in Illinois. The writer's work on Future Interests published in 1905 was undertaken for three reasons. First: Excellent as was the course en future interests, given by Professor Gray at ' the Harvard Law School, it was quite inadequate tb prepare the writer to handle litigation in Illinois relating to the law of this subject until he had read, classified and arranged aU the Illinois cases in regard to it, so that he knew at first hand what the Supreme Court of this state had been doing and where it • stood.^ Second: The writer was then teaching the subject of fu- ture interests and believed that a teacher of law should practice, at least in the courts of appellate jurisdiction and in cases involving the law on the subjects which he taught, and that there was no possibility of doing this unless he attempted to master the local law and submitted the results of his efforts t(f the consideration of lawyers and judges.* Third: It" had be- gun to dawn upon the writer that so long as the administration ; of justice was left to each state to the extent that it had been- and now is, it was vastly important that law teachers' and ' practitioners should write about the local law and should critic cize and analyze the decisions of a single jurisdiction on all important subjects, and that in time some law schools should teach the local law of the jurisdiction where they were located; In the fifteen years which have elapsed ' since Future In- " 1 erests was published, each of these reasons has been found ^to be not only sound but of constantly increasing force. 2 Cases marked with an asterisk in in the Evolution of the Case Book; ' ' the Table of Cases are reprinted by the same author, 4 111. Law Ee v. in the author's Cases on Future In- 11. "An Unsolicited Report on Le- terests. gal EducatioUj ' ' by the same author, 3 ' ' The Next Step in the Evolu- 18 Columbia Law Rev. 21. tion of the Case Book, ' ' by Albert 4 ' ' Should the Lkw Tdacher Prdc- M. Kales, 21 Harv. Law Eev. 92. tice Law?" 25 Harv. Law Eev. 253. ■ ' ' A Further Word on the Next Step f PEEPACE Vll The inadequacy of law school courses — given today about as they were outlined (if not indeed perfected) by the great teachers of the Harvard Law School from the '80s to the 1900s — ^to enable the student to practice in a given jurisdiction like Illinois, has become each year more apparent. While teaching law and having little, if any, practice, it took the writer three years to complete the earlier work. William B. Hale, who wrote a book of the same sort on the Illinois law of corpo- rations, spent at least the same amount of time spread over a greater number of years. Today similar efforts with other leading subjects of the law are no less difficult of accomplish- ment. The gulf between the l^w which the law schools teach and the local law, which the practitioner needs to ^ow to use and to train his legal thinking on, grows each year a little wider and more impossible for the beginner in practice to bridge, without having had^;he aid of able scholars and teachers who are also masters of the local law. It has always been apparent to the writer that practitioners (as we know them in this country) should not attempt to teach law. It has been equally apparent that the law teacher to be a first-cliass teacher must have (not have had) some practice. Not, however, a pr^tice as a client caretaker, or even as a success- ful advocate engaged constantly in long and difficult trials. Ex- .cluding these lines of practice there is still room for the law teacher to. engage in some activity at the bar. The work of the law teacher is closer to that of our judges in courts of appeal than is the work of the average lawyer. The teacher is accus- tomed to classify, arrange, analyze and criticize the opinions of courts of last resort. That brings his thinking very close to the thinking of the judges who are writing thbse opinions. The law teacher has a fair opportunity to practice before courts of appeal, particularly in cases involving such branches of the law as he makes his special field in teaching. In this line of prac- tice his position should be that of an advocate employed by other lawyers. The sine qua non for a practice of this kind is that the teacher should not only be a master of the local law in some important subjects but should demonstrate his mastery to judges and lawyers by producing a text-book on the local law by which he may be judged. Such a practice would not only produce a substantial income and confer a staiiding at the bar among lawyers and judges, but it would make the dif- ference between a somewhat colorless academic teacher and one Vlll PREFACE who knew the problems that were vital and could assume to speak with some authority. Contests with able counsel and the effort to persuade judges of ability and long experience on the bench regarding the very problems which were taken up in the class-room, would furnish a training for teaching which, in the writer's opinion, could not be excelled. That the writer is not alone in this opinion appears from the remarks made by Mr. Justice Loring, at a meeting of the Bar Association of Boston and of the Supreme Judicial Court of Massachusetts, to honor the memory of the late John Chipman Gray. "When Mr. Gray in 1875 accepted a professorship in the Harvard Law School he deliberately chose that as his career for life. He continued in active practice to be sure ; but he continued in practice be- cause he thought that if he was in touch with the realities of liti- gation and of affairs he would be a better teacher of law. So much I had from Mr. Gray himself. * * * He was the bet- ter teacher for being in active practice ; he was the better lawyer from the learning which came from teaching law." During the twelve j'ears from 1905 to 1917 the writer spent at least one-third of his time in teaching law at Northwestern University and other law schools. He finally had the privilege of teaching at the Harvard Law School in the year 1916-1917. That entire experience, taken with his experience in practice, has only confirmed the belief that so long as our states administer justice as they now do, some law schools in some jurisdictions must soon begin to teach the local law. In the larger and older states the law teachers must do again what Langdell and his associates did. They must re-write and re-state the law for law students. Only this time the work must be done with reference to the decisions and statutes of two jurisdictions, the single state and the United States. This is a task which needs (and as yet has not secured) the same genius and industry that Langdell and his associates exhibited when they undertook to re-state and re- analyze the great subjects of the common law. No teacher o£ today need think his .talents superior to the task of today. The writer acknowledges the many and invaluable services of Miss Mary A. Howie, in the preparation of the manuscript for this book. He is indebted to Professor Joseph "Warren for valuable suggestions and to Mr. Neil C. Head for a critical read- ing of th^ proofs. A. M/K. Chicago, Feb. 6, 1920. TABLE OF CONTENTS BOOK I INTRODUCTION TO THE LAW OF ESTATES AND FUTURE' INTERESTS CHAPTER I. . THE FEUDAL LAND LAW. Title I. TENURE AND ITS INCIDENTS. See. The feudal system of tenures 1 Military tenures 2 necessary services 2 incidents 3 ■ Socage tenures 4 kinds 4 services and incidents 5 Frankalmoigne tenure , 6 Effect of the Statute of Quia Emptores 7 Effect of the Statute of Charles II 8 Tenure in the United States ; 9 Title II. SEISIN IN ITS EELATION TO ESTATES. Seisin defined in relation to estates 10 Topic 1. estates in possession freehold, less than freehold, and joint interests. Freehold estates 11 fee simple ^ ^ '■ '• 11 fee subject to a condition subsequent 12 fee simple determinable or base fee 13 fee tail ., 14 introductory , 14 ix CONTENTS t '■^ See. before the Statute De Donis 15 origin of the estate tail under the Statute De I)onis 16 the struggle to make the estate taU alienable in fee simple. ... 17 the further effort to secure an inalienable estate tail 18 modem legislation 1^ estates for life 20 Estates less than freehold 21 Joint -ownership 22 Topic 2. PUTUEE INTEEESTS. Possibilities of reverter and rights of entry for condition broken 23 Beversions after a particular estate of freehold 24 Remainders after a particular estate of freehold '. 25 Springing and shifting future interests and limitations to classed 26 Contingent remainders , 27 defined 27 is the contingent remainder valid or invalid under the feudal law 28—- distinction between vested and contingent remainders 29 Seisin of future interests after estates of freehold . ." 30 Future interests after estates less than a freehold 31 by operation of law ■ 31 by act of the parties 32 non-contingent interests 32 contingent interests 33 Topic 3. RUI-E IN SBELIiEY's CASE. Statement of the rule, 34 _ Reasoning upon which the Bule was established 35 Persistence of the Bule 36 Operation of the Rule 37 Title III. SEISIN IN ITS RELATION TO CONVEYANCE. Distinction between descent and purchase 38 Descent 39 from whom traced 39 feudal rules of descent i 40 Devise 41 Livery of seisin , 42 Grant and attornment — releases 43 Conveyances by record 44 Conveyanqe of estates less tha,n freehold 45 Disseisin and tortious conveyance , 46 X CONTENTS • Sec. Inalienability , 47 of mere rights of entry 47 of contingent future interests 48 CHAPTER II. LAND LAW UNDER THE STATUTE OF USES. Title I. USES BEFORE THE STATUTE. Uses defined , 49 Origin of uses 50 Enforcement of the use by the cestui 51 Position of the feoffee and oestwi que use at law as distinguished from their position in the chancery ; 52 Title II. THE STATUTE OP USES. The statute 53 Title III. USES AFTEE THE STATUTE. Topic 1. uses raised on transmutation op possession. Pefined 54 Transmutation of possession and an express declaration of the use .... 55 Transmutation of possession and the payment of a consideration 56 Transmutation of possession, declaration of the use by one and pay- ment of the consideration by another 57 Resulting uses 58 Topic 2. uses raised without transmutation op possession. Defined 59 The bargain and sale and Statute of Enrollments 60 The Statute of Enrollments avoided by the "lease and release" 61 No particular form of words is necessary to make a bargain and sale. . 62 Covenants to stand seized 63 Summary 64 Topic 3. operation op the statute — uses which the statute did not execute. Operation of the statute 65 Suppose A seized in tail or for life were directed to hold to the use -of one in fee 66 xi ■ CONTENTS Sec. Uses which the statute did not execute 67 Status of uses which the statute did not execute 68 Whether or not the statute executes a use is to be determined finally at the time the use is created 69 Topic 4. estates and limitations bt wat op use. Estates of freehold and less than freehold in possession 70 Future interests 71 those permitted by the feudal land law could be created by way of use ^. . 71 some not permitted by the feudal land law were valid when created' by way of use 72 springing and shifting uses / 72 powers 73 limitations to classes by way of use 74 conveyance creating estates will take effect in any way possible 75 basis for new freedom in creating estates and future interests 76 contingent remaiiiders by way of use 77 the rule of destruetibility applies 77 trustees to preserve contingent remainders 78 the feudal distinction between vested and contingent remain- ders continued to be important 79 contingent future interests by way of use after terms for years . . 80 the Bule in Shelley's Case 81 Alienability of future interests created by way of use 82 Topic 5. summary op changes 'wrought bt statute of uses. Summary 83 CHAPTEE III. WILLS AND TRUSTS OF LAND. ' Title I. "WILLS. Origin under the Statute of Wills of Henry VIII 84 Limitation of estates by devise. 85 Devise as a mode of alienation ; . . . . .'; 86 TrPLB II. TRUSTS. Origin and reappearance of trusts of land '. 87 Equitable estates in land 88 The Bule in Shelley's Case applied to equitable interests in land 89 xii CONTENTS CHAPTEE IV. THE LATER HISTORY OF REVERSIONS, REMAINDERS AND THE ' RULE OF DESTRUCTIBlLITY OF CONTINGENT REMAINDERS. Title I. REVERSIONS. Sec. Vested and indefeasible 90 Vested, but uncertain ever to take effect in. possession and defeasible — e. g., a reversion pending the vesting of a contingent remainder. ... 91 Vested, but subject to be defeated by events happening after the rever- sion came into possession ■ 92 TitIjE II. EEMAINDERS. Vested and indefeasible 93 Defeasible and uncertain ever to take effect in possession 94 The problem of Egerton v. Massey , . . 95 Title III. THE RULE or DESTRUCTIBlLITY OF CONTINGENT REMAINDERS. Contingent remainders defined >. 96 The eontinuation of the rule of destructibility of contingent remain- ders after springing and shifting future interests became valid and indestructible 97 Application of the rule of destructibility in the modern cases 98 where the remainder is limited to an individual 98 where the remainder is limited to a class 98 where, when the life estate terminates, no member of the class has attained a vested interest 99 where, when the life estate terminates, one member of the class has attained a vested interest •. ■ ■ • ■ : ■ •. 100 typical cases stated and analyzed 100 1 state of the English authorities ; 101 where the limitations are to "A for life, remainder to such children of A as reach twenty -one "...... 101 where the limitations are to "A for life, remainder to such children of A as, either before or after A's death, reach twenty-one " 102 the rule of the Massachusetts Supreme Court 103 where the remainder is to a class the operation of the rule of de- structibility must be distinguished from the operation of rules of construction for the determination of the class 104 Application of the rule of destructibility where the future interest is limited on such events that it may take effect either as a remainder or as a shifting interest cutting short a prior rested remainder in fee 105 Abolition of the rule of destructibility by legislation 106 xiii CONTENTS CHAPTER y. ESTATES AND FTJTUBE INTERESTS IN PERSONAL PROPERTY. Sec. Chattels personal 107 English Law 107 American cases 108 Chattels real 109 No doctrine of destruetibility 110 The Rule in Shelley's Case has no application Ill Future interests in personal property created by means of trusts 112 CHAPTER VI. THE RULE AGAINST PERPETUITIES. The necessity for a rule limiting the length of time in the future at which future interests could be designated to take effect became apparent in the 17th Century 113 Manning's Case and Child v. Baylie 114 Duke of Norfolk's Case 115 Subsequent leading cases completing the statement of the Rule against Perpetuities 116 In determining when a freehold interest took effect in possession resort was had to certain purely feudal conceptions 117 It was enough if the future interest vested in interest (as distin-* guished from taking effect in possession) within the required time. . 118 Statement of the Rule 119 Inaccurate and unsatisfactory statements of the Rule 120 Public policy behind the Rule against Perpetuities 121 BOOK II INTERPRETATION OF WRITINGS— MORE ESPECIALLY WILLS CHAPTER VII. THE THEORY OF LEGAL INTERPRETATION AND AVAILABILITY OF EXTRINSIC EVIDENCE. Introductory 122 Title I. SUB-TECT MATTER Or INTERPRETATION. Inducement distinguished from legal act — the writing constituting the legal act is the only subject matter of interpretation 123 xiv CONTENTS Title II. STANDARDS OP INTERPRETATION. Sec. Wigmore's three standards applicable to unilateral acts 124 Mr. Justice Holmes' single standard of interpretation 125 The "will" or "intention" of the inducement as a standard of inter- pretation , 126 Title III. SOURCES rOR ASCERTAINING THE TENOB OP THE STANDARD OP INTERPRETATION EXTRINSIC EVIDENCE. The instrument itself 127 Extrinsic evidence 128 introductory 128 the rule against ' ' disturbing a clear meaning " 129 direct declarations' by the testator or settlor 130 such declarations -as relate to the standard of interpretation used, when they, do not also disclose the objects and pur- poses of the inducement, should be received 130 declarations of the testator or settlor which disclose the ob- jects and purposes of the inducement 131 when excluded ,. 131 exception in the case of equivocation 132 even where extrinsic evidence (other than direct declarations of the testator or settlor) tends to prove an individual standard of interpretation in eases of ambiguity, it may still be excluded because of too slight and remote probative force and too likely to be used improperly to establish the inducement as a rival subject matter or standard of inter- pretation 133 Title IV. CASES ILLtrSTBATING THE APPLICATION OP SOME OP THE FOREGOING PRINCIPLES PARTICULARLY THE BULB AGAINST DISTURBING THE PLAIN MEANING. Introductory .* 134 Description of property devised 13.5 where the description of the land devised is precisely and in all particulars applicable to an existing piece of land no ambiguity arises and, though the extrinsic evidence shows beyond question a mistake in using the description expressed, that description must prevail as a matter of construction 135 where, however, the description of the land devised is not precisely and in all particulars applicable to an existing piece of land, the description is not sensiblfe with reference to the extrinsic circumstances and that part of the description which, in view of admissible extrinsic circumstances, appears to be false may be rejected under the rule falsa demcmstratio non nocet 136 XV CONTENTS Sec. the principal difficulty is in determining whether or not the descrip- tion of the land devised is precisely and in all particulars ap- plicable to an existing piece of land 137 after part of a description has been rejected under the rule of "falsa demonstratio" the meaning of what is left must be con- strued and given effect according to the usual principles of con- struction 138 Indentification of the devisee 139 Who are included in words of general description — such as ' ' children, ' ' ' ' heirs, " or " issue " 140 Where the question is as to the estate created or the nature of a con- tingency 141 , Title V. COMMENTS UPON THE "OBJECT OT INTERPRETATION" AND IIPON "STRICT" I AND ' ' LIBERAL ' ' CONSTRUCTIONISTS. The object of interpretation — what part does the "intention" of the inducement play 142 Strict and liberal constructionists 143 CHAPTER VIII. SUGGESTIONS CONCERNING THE PRACTICE OF THE 'ART OF INTERPRETATION. There is an art of interpretation .' 144 Caution against indulging in speculation and conjecture as to what the testator intended — the interpreter should not infer what he (the in- terpreter) would .have intended had he been placed in the position of the testator 145 In determining the effect to be given to surrounding circumstances (even when admissible) to support a secondary meaning, a practical distinction should be observed between the eases where the difficulty is one of ascertaining what persons are to take, or what property is conveyed, and those where the question is what estate is created or the nature of a contingency 146 The interpreter should, whenever possible, inquire into the primary and secondary meanings of words and phrases with a view to adhering to the primary meaning unless the secondary meaning is fairly re- quired 147 It is an especially strong reason for adhering to the primary mean- ing of the language in question as against slight contextual elements and surrounding circumstances supporting a secondary meaning, that the difficulty of construction is one upon which the testator's mind never acted, so that there is no actual intent of the inducement .... 148 The place of the argument from absurdity or incongruity 149 The art of balancing all the considerations on one side against all those on tHe other 150 xvi CONTENTS See. The language used must be able to bear, the meaning placed upon it and no additions must be made to the context of what is not in it. . 151 The place of precedent in handling problems of construction 152 BOOR III ESTATES CHAPTER IX. PEE SIMPLE. Title I. HOW CREATED AT COMMON LAW AND TJNDER THE STATUTES OP USES AND WILLS. In conveyances inter vivos 153 Where the transfer was by devise 154 I'he common law rules prevailed in this State until July 31, 1837 155 Title II. ' ■UNDER SEC. 13, R. % 1874, CH. 30. The statute 156 Cases where an estate less than a fee is limited by express words 157 Cases where the primary effect of the cbnveyance to create a fee was confirmed by the use of the common law words of limitation, i. e., "heirs?' w 158 Cases where the primary effect of the transfer to create a fee was con- firmed by the use of expressions other than the common law words of limitation ; ; 159 Cases where there is a transfer to A simpliciter and no context showing an intent that A shall or shall not take the fee, but where tinder the statute he nevertheless does so 160 Case? where the only special context tends to indicate that a less estate than a fee was intended, but where this context is deemed to be in- suflcient to overcome the primary statutory meaning 161 Transfer to A simpliciter followed by a gift "at iis decease" 162 Transfer to A simpliciter followed by a gift ' ' in case of his death ' ' or some other expression treating A's death as a contingent event.... 163 Effect of gifts over 164 where the limitations are to A simpliciter with a gift or gifts over on A's death and on one or more collateral contingencies, which, however, do not exhaust all the possibilities 164 '^ where the limitations are to A simpliciter, with gifts over on sev- eral contingencies which exhaust all the possibilities 165 %/^ xvii CONTENTS where the limitations are to X for life, remainder to A simpliciter, with a gift or gifts over on A's death and on one or more col- lateral contingencies which do not exhaust all the possibilities. . 166 where the limitations are to X for life,, remainder to A siinpliciter, with gifts over on several contingencies which exhaust all the possibilities ^ 167 Limitations to A simpliciter with power in A to dispose of an absolute interest in the property, and upon failure to do so, over to B 168 Miscellaneous contexts only superficially related — ^limitations to A and his children and their children 169 Title III. LIMITATIONS TO "A OE HIS HEIRS." Where there is no preceding estate 170 in a conveyance inter vivos 170 by way of devise • 171 Where there is a preceding life or other estate 172 limitations in a conveyance inter vivos 172 by way of devise 173 meaning of "or his heirs" where the words introduce a substitu- tionary gift 174 Where there is a preceding life estate with gifts over on conldngencies, with an ultimate gift over to "A or his heirs " 175 Where the ultimate gift is to the grantor "or his heirs" 176 Title IV. CONFLICTING PEOVISIONS CONrLICT BETWEEN THE PBBMISES AND THE HABENDUM. Courts attempt to reconcile apparently conflicting clauses 177 Where an actual conflict occurs 178 the rule as to deeds 178 the view of the common law 178 common law rule, how far modified 179 where the premises provide for the lesser estate and the habendum for the larger 179 where the premises provide for the larger and the haben- dum the lesser estate 180 modification of the common law rule by statute .... 180 tendency, apart from statute, to modify the strict- ness of the common law rule 181 where devises are involved 182 Title V. ESTATE WHICH A TRUSTEE TAKES. Introductory 183 Testamentary trusts 184 cases where there are no explicit words of devise to the trustee. . . 184 xviii CONTENTS . Sec. cases where there are explicit words of devise to the trustee 185 effect of R. S. 1874, Ch. 30, Sec. 13 185 where real estate is devised to trustees and an estate for the ' life of the beneficiary is expressly indicated 186 where real estate is devised to trustees, although with words of inheritance, or where such words are supplied in effect by R. S. 1874, Ch. 30, Sec. 13, prima fame the trus- tees take only so much of the legal estate as the purposes' of the trust require 187 a fortiori, where no words of inheritance are used and no statute like R. S. 1874, Ch. 30, See. 13, exists, the trustee takes only such estate as the purposes of the trust require 188 where there are words of devise to the trustee and the trustee is given power to sell and convey the fee and is directed to wind up the trusts by making an actual division among the beneficiaries and conveyances to them, the trustee takes the fee 189 where there are words of devise to the trustee and he is to make conveyances upon the temliiiatiOn of the trusts, but has no. power of sale '. 190 where there are words of devise to the trustee and he is given power to sell but not directed to convey to the beneficiaries at the termination of the trusts 191 where there are words of devise to the trustee and power to make leases, but no power to sell the fee and no direction to convey to the beneficiaries at the termination of the trusts. . 192 Where the trusteeship is created by a conveyance inter vivos 193 CHAPTER X. TEE TAIL. • The Statute on Entails 194 Words sufBcient under the Statute De Donis to create an estate tail. . 195. in conveyances inter vivos 195 by devise 196 in several eases where the context contained the phrase "heirs of the body" an estate tail was upon the whole context held not to have been created. 197 Suppose the words used are not sufScient under the Statute De Donis to create an estate tail, but are sufiicient to express an intention to create such an estate 198 Suppose personal property is limited with such expressions as, if used in a conveyance or devise of real estate, would create an estate tail. . 199 suppose the limitations of personal property are to "A and the heirs of his body," or to "A for life and then to the heirs of his body" 199 ' suppose the limitations of personalty are to "A and his issue" or to "A and the issue of his body " 200 xix ' CONTENTS CHAPTER XI. ESTATES FOR LIFE. Title I. BY EXPRESS WORDS. Sec. Defined 201 Created 202 by words explicitly. 202 expressly by construction 203 Title ll. IMPLICATION OF LIFE ESTATES, DISTRIBUTrVll CONSTRtTCTltoN AND DISPOSITION or INTERMEDIATE INCOME. The problems stated 204 Implication of the life estate where there is a gift after the death of A 205 The distributive construction 206 Intermediate income 207 introductory 207 the rules established by the cases .• 208 criticism of the rule that the intermediate rents and profits of a residue of realty go to the heir-at-law 209 CHAPTER XII. ' JOINT INTERESTS." Of real estate 210 joint tenancies other than those in trustees and executors 210 the statutes 210 construction 211 joint tenancies in executors and trustees 212 estates by the entirety in husband and wife. 213 tenancy in common 214 In personal property 215 BOOK IV FUTURE INTERESTS CHAPTER XIII. RIGHTS OF ENTRY FOR CONDITION BROKEN. Title I. ESTATES WHICH MAT BE SUBJECT TO A CONDITION SUBSEQUENT. Fee simple gig mortgages 217 Terms for years , ; 218 XX CONTENTS See. Title II. concerning the existence and character or the conditions. Topic 1. conditions created by act op the parties. What words are effective to create a right of entry for condition broken 219 effect of a re-entry clause 219 where the conveyance is for certain express purposes, or upon a motive expressed, or upon a certain consideration, or "upon the express agreement," or "provided, however, the grantee sjiall do ' ' thus and so, and there is no re-entry clause 220 eases where a grantee is to support the grantor for the remainder of his life or pay him an annuity 221 cases where words of condition are used, but there is no re-entry clause 222 the primary meaning of the words of condition 222 how far resort may be had to circumstances surrounding the making of the deed to impose upon words of condition alone •the effect of creating a covenant only 223 introductory 223 a strong circumstance that a condition is created 224 Post V. Weil 225 Druecker v. HcLaughlin 226 Breach of condition created by act of the parties. 227 Topic 2. conditions created bt operation of law. Upon the conveyance of a fee simple 228 in general . ; 228 mortgages 229 diflBloulty in the rule that when the debt is barred the mort- gagee has no right to possession 229 view that the mortgagee has a base or determinable fee 230 view that the mortgagee's interest after default is subject to a condition subsequent i 231 barring of the debt is simply an equitable defence to the mort- gagee's legal title 232 In case of leaseholds .'. . 233 implied condition that a tenant shall not repudiate the tenancy and claim to hold against the landlord 233 by Acts of 1865 and 1873 234 prior to 1865 no ground of forfeiture in the absence of express condition 234 introductory , 234 on principle -. 235 not altered by any statute down to 1865 236 xxi CONTENTS Sec. see. 2 of the Act of 1865 afterwards appearing as see. 9 of the Act of 1873 237 sec. 8 of the Act of 1873 238 whether these acts have any retroactive effect 239 Title III. WHO MAY TAKE ADVANTAGE OF A BREACH OP A CONDITION SUBSEQUENT AND WHO TAKE SUBJECT TO THE CONDITION. When attached to a fee simple 240 When attached to an estate for life or years 241 Who take subject to the condition 242 Title IV. EFFECT OF THE BREACH OF A CONDITION SUBSEQUENT AND MODE OF PERFECTING A FOEPBITUEE. Estate voidable, not void 243 Mode of perfecting a forfeiture 244 of freiehold estates 244 of estates less than freehold 245 the common law method of forfeiture 245 effect of Illinois statutes upon the common law method of for- feiture 246 in case of default in payment of rent ; 246 Act of 1827 246 sec. 2 of the Act of 1865, appearing as sec. 9 of the Act of 1873 247 sec. 4 of the. Act of 1865 248 sec. 8 of the Act of 1873 249 how far has a forfeiture by a common law demand for rent been abolished by the Acts of 1827, 1865, and 1873 250 for cause other than default in the payment of rent 251 sec. 2 of the Act of 1865, appearing afterwards as sec. 9 of the Act of 1873 251 how demand may be made or notice served 252 retroactive effect of the Acts of 1827, 1865 and 1873 253 method of perfecting a forfeiture as altered by the agreenient of the parties 254 provisions for the benefit of the landlord ; . . 254 provisions for the protection of the tenant 255 Title V. REMEDY IN CASE OF FORFEITURE DULY PERFECTED. By ejectment or forcible detainer suit 256 Actual entry upop the land 257 action of forcible entry and detainer for possession by the one put out 257 xxii CONTENTS Sec. introductory 257 where the entry is forcible 258 before 1872 _. 258 since 1872 '. 259 where the entry is peaceable 260 what entry is peaceable and what forcible 261 how far may the one put out sue in trespass q. c. f., assault and battery, and d. b. a 263 three possible views 262 the Illinois cases i 263 first indications 263 Keeder v. Purdy ■. 264 its real scope. 264 subsequent cases: Fort Dearborn Lodge v. Klein.. 265 the ground of the rule laid down in'Reeder v. Purdy 266 distinction between forcible and peaceable entry 267 the vice of Eeeder v. Purdy 268 the virtue of Fort Dearborn Lodge v. Klein 269 some further questions 270 view of the AppellatB Court in the first district 271 ■ before the Klein ease 271 since the Klein case 272 ' in trespass q. c. f 272 Judge Gary 's view 272 sustained by other judges 273 contrary to the rule of the Supreme Court. . 274 in trespass for assault and battery and de bonna asportatis 275 defence of leave and license 276 How far equity will enforce a forfeiture 277 Title VI. KELIEP AGAINST FORrEITUEE. At law : , 278 several methods of relief. 278 license ■. 279 waiver 280 estoppel 281 In equity ■ 282 Tl-PLE VII. RIGHT OP ENTRY FOR CONDITION BROKEN DISTINGUISHED FROM A POSSI- BILITY OP REVERTER WRIGHTS OP THE DEDICATOR AND ABUTTING OWNER ON A STATUTORY DEDICATION. Distinction between a right of entry for condition liroken and a poBsi- bility of reverter ' 283 xxiii CONTENTS See. The iixtereat of the dedicator upon a statutory dedication 284 what sort is, it 284 on principle 284 on authority 285 how does it arise 286 Rights of abutting owners upon vacation of a statutory dedication .... 287 jn the absence of statute 287" Ihe Acts of 1851, 1865 and 1874 288 effect and constitutionality of these acts. .- 289 the •frider and narrower meaning of these acts 289 these acts only operative in their narrower meaning, because » in their wider meaning they would be unconstitutional and unjust 290 are these acts in their wider meaning unconstitutional or unjust 291 a difficulty about opening this question 291 such acta are neither unjust to the dedicator nor contrary to public policy 292 their constitutionality 293 retroactive effect of these acts 294 when their narrower meaning is adopted 294 upon their wider meaning 295 application of these statutes in their narrower meaning to the case of vacations of streets in canal trustees' subdivisions 296 introductory 296 power of canal commissioners and canal trustees to dedicate streets 297 upon such dedication the fee passes, leaving a right to enter in the dedicator in case of vacation 298 upjon, the vacation of a canal subdivision the fee in the street should go to the abutting owners , 299 CHAPTEE XIV. POSSIBILITIES OP EEVEETER, Possibilities of reverter described 300 Distinguished, from a conditional limitation 301 How far valid in Illinois 302 CHAPTEE XV. EEVEESIONS AND EEMAINDEBS. Title I. REVERSIONS. Examples of reversions 303 Eeversions are indestructible by any rule of law defeating intent\ and alienable,. .' , 304 A difficulty of construction .305 xxiv CONTENTS :-. Sec. Whether after the creation by devise of a freehold followed by contin- : " gejit interests a residuary gift results in the CTea:tion of a reversion or a- remainder i 306 Title II. •* THE CREATION OP REMAINDERS. Several points which have been passed upon 307 Title III. REMAINDERS WHICH AS CREATED ARE CERTAIN TO TAKE BPPBCT BECAUSE THEY ARE NOT LIMITED IN DURATION OR DEFEASIBLE ON ANT EVENT EXPRESSED AND WHICH STAND READY TO TAKE EFFECT IN POSSESStON WHENEVER AND HOWEVER THE PRECEDING PARTICULAR ESTATE OF FREEHOLD DETER- MINES — COMMONLY CALLED VESTED REMAINDERS. Examples of such remainders — they are valid, indestructible and ali«nable ; 308 Title IV. REMAINDERS LIMITED TO TAKE EFFECT 'UPON AN EVENT EXPRESSED AS A CONDITION .PRECEDENT IN FORM WHICH MAY HAPPEN BEFORE OR AFTER, OR AT THE TIME OF OR AFTER, THE TERMINATION (WHENEVER OR IN WHATEVER MANNER) OF THE PRECEDING PARTICULAR ESTATE OP FREE- HOLD—COMMONLY CALLED CONTINGENT REMAINDERS. Examples of contingent remainders 309 Topic 1. rule of destructibilitt of contingent remainders. This rule in force in Illinois 310 Method of operation of the rule 311 by the premature destruction of the life estate by merger .311 by forfeiture of the life estate • 312 by the expiration of the life estate in due course before the hap- pening of the event upon which the contingent remainder is to vest ,. 313 the partial destruction of a contingent remainder occurs where the life estate terminates before the contingency happens as to an un- divided interest only .■ ' 314 Where the remainder is to a class and has vested in one or more mem- bers of the class before the termination of the life estate, the rule of destructibility does not apply to the interests of the other mem- ■ bers of the class 315 The rule of destructibility does not apply where the interests are equit- ■ able . . . . ; 316 The rule of desfructibilty appears not to be called into operation when the widow, having a life estate by will, renounces 317 XXV CONTENTS Sec. Does the rule of destructibility apply to the statutory remainder created by the Statute on Entails 318 Methods of securing an adjudication that a contingent remainder has been destroyed 319 Topic 2. » inalienability op legal contingent eemainders. Inalienable by conveyance inter viv(ys 320 Extinguishment by release 320a Operation of the doctrine of estoppel by covenants of warranty 321 where the remainder vests in the warrantor 321 where the remainder vests in the warrantor 's heir 322 case stated and considered on principle 322 the state of the cases in this State makes the l^w uncertain. . 323 Alienable by descent 324 Alienable by devise 325 Topic 3. when the contingent remainder vests. Bemainderman en ventre sa mere 326 Title V. REMAINDERS WHICH ARE UNCERTAIN EVER TO TAKE EFFECT IN POSSESSION BECAUSE OF LIMITED DURATION 'OR SUBJECT TO BE DIVESTED BY SOME EVENT EXPRESSED AS A CONDITION SUBSEQUENT IN FORM, BUT WHICH STAND READY THROUGHOUT THEIR CONTINUANCE TO TAKE EFFECT IN POS- SESSION WHENEVER AND HOWEVER THE PRECEDING ESTATE OF FREEHOLD DETERMINES REMAINDERS VESTED, BUT OF LIMITED DURATION OR DE- FEASIBLE. Examples of such remainders — their validity and indestruetibilty by any rule of law defeating intent — ;their alienability. . . .' 327 Propriety of calling remainders of this class vested 328 Title "VI. PROBLEMS OF CONSTRUCTION WHICH ARISE IN DETERMINING WHETHER PAR- TICULAR REMAINDERS ARE CONTINGENT, AND SO DBSTRUCTIBLB AND IN- ALIENABLE, OR VESTED (WHETHER INDEFEASIBLE OR DEFEASIBLE) AND SO INDESTRUCTIBLE BY ANY RULE OF LAW DEFEATING INTENT, AND AMEN- ABLE. introductory 329 Limitations to A for lite, remainder to B "after the death of A". . . . 330 Where the limitations are to A for life and "if B overlive A," then to B for life .• , . 331 Bemainders in default of appointment 332 xxvi CONTENTS Sec. Where the limitations are by devise to A for life, remainder to B (an individual as distinguished from a class), "if" or "when" he shall attain a given age, or "at" a given age, with a gift over in the event of his dying under that age 333 Suppose the life estate be omitted and limitations are directly to A " if , " or " when ' ' he shall attain twenty-one, with' a gift over in case he dies under that age ; 334 Where the limitations are by devise to A for life, then to the children of A (a class), "at," "when," or "if" they attain twenty-one, with a gift over in default of children who attain twenty-one 335 Where the remainder is to "the children of A who shall attain twenty- one" or "to such children of A as shall attain twenty-one," with a gift over in default of children attaining that age 336 Limitations to A for life, reinainder to B "if he survive A; if he does not," to C 337 Limitations to A for life, remainder to the children of A "who sur- vive," and if any die before A, to their children, if any; if not, then over 338 Where the limitations are to "A for life, remainder to the children of A who survive A, and to the children of any who do not survive A," without any further gift over 339 Where the limitations are to A for life, remainder to B "if he survive A," and if he does not and dies without leaving issue, over to C. . . . 340 Where the limitations are to A for life, remainder to "his children surviving him, ' ' with a gift 'over if A die ' ' without issue surviving him " 341 Where the limitations are to A for life, remainder ' ' in case A dies leav- ing any children surviving," to them, the issue of any child taking their deceased parent's share; but should A survive all the children (they having died without issue), then to A 342 Bemainder to A, B and C, "or the survivor or survivors" of them 343 Limitations to A and B for life and in case of 'the death of either, to the other 344 Cases where a remainder has been limited, without any explicit condition precedent in form that the remainderman survive the life tenant, but where there has been a gift or gifts over in case the remainder- man dies before the life tenant 345 bearing of the results noted in the preceding sections upon the problem of construction now presented 345 where the remainder is to named, individuals with a gift ovfer if any die before the life tenant, to survivors 346 where the remainder is to named individuals or to a class, with two gifts over — ^usually one, ' ' if any die leaving children, to such chil- dren," and the other, "if any die without children, to the sur- vivors," or "if all die without children, to A". . ; 347 where the remainder is to named individuals (who are adults), or to a class (wi esse and adult) , with a single gift over if any die without leaving children or issue, to the survivors 348 xxvii CONTENTS See. where the remainder is to the unborn children of the life tenant with a single gift over if the life tenant dies ^without leaving children oir issue surviving ^ 349 where the remainder is to named persons or to a class, with a single gift over if any die before the life tenant leaving children, then to those children 350 Suppose the remainder be limited "to the life tenant's children who survive the life tenant and in case any die leaving children, to such children," is the ultimate gift over also contingent upon the grand- children surviving the life tenant 351 Suppose there is first a contingent remainder to the life tenant's sur- viving children or to her lineal heirs and then a remainder is limited to a class upon the life tenant's dying without leaving children or issue, is the second remainder to the class also contingent upon the remainderman surviving the life tenant 352 Effect on vesting of the fact that the remainder is limited to a class. . 353 Effect of special directions that the remainder is to "vest" or "become absolute ' ' on the death of the life tenant 354 Whether a future interest is a vested remainder subject to a charge, or a springing executory interest contingent upon the one to whom it is limited paying a sum after the termination of the life estate 355 Cases dealing with whether there is a condition precedent, in form that the remainderman survive the life tenant where personal property is involved, are not authoritative where real estate is involved 356 Title VII. THE NBVT YORK STATUTORY DISTINCTION BETWEEN VESTED AND CONTINGENT REMAINDERS USED TO DETERMINE THE ALIENABILITY OR INALIENABILITY OF REMAINDERS IS NOT IN FORCE IN ILLINOIS. The New York statutory distinction between vested and contingent remainders : 357 The Illinois cases regularly and without exception assume the common law or feudal distinction between vested and contingent remainders to be in force in this State and endeavor to apply it, and have explicitly rejected the New York statutory distinction 358 C^ses which it is claimed show the adoption in Illinois of the New York - statutory distinction in every instance, excepting one, will be found to reach a proper result without applying the New York doctrine, and the one case which did apply the New York statutory distinction, and another purporting to follow it, have been in terms overruled. . 359 cases dealing with the statutory remainder created by the Statute on Entails 359 Voris V. Sloan '. 360 Smith V. West - 361 Siddons v. Coekrell 362 Kellett V. Shepard 363 Burton v. Gagrno" 364 xxviii ' CONTENTS See. Boatman v. Boatman 365 Chapin v. Nott , 366 Euddell V. Wren 367 Orr V. Yates 368 ;■ ' Title VIII. JURISDICTION OP EQUITY TO SET ASIDE AND ENPOECE TKANSPERS OP EEVEE- SIONS AND EEMAINDERS. Introductory 369 Setting aside transfers of reversions and vested remainders which were indefeasible '370 Setting aside transfers of reversions and vested remainders which are defeasible ., 371 Suppose the transfer of the reversion orWested remainder were by a guardian 's sale •, 372 Suppose the transfer of the reversion or remainder were by execution sale ; 373 Specific performance of transfers of contingent remainders as contracts to convey when the remainder ve^ts 374 Specific performance of a guardian's attempted taansfer of the ward's contingent remainder " 375 Equitable execution upon contingent remainders by creditor's bill.... 376 Suppose the interest attempted to be ' transferred, whUe in form like a contingent remainder, is equitable and not legal , 377 Conclusion 378 Title IX. ATTORNMENT. Attornment no longer necessary for the transfer of reversions and vested remainders 379 Title X. DESCENT OF REVERSIONS, REMAINDERS AND OTHER PUTURB INTERESTS, PROM WHOM TRACED. At common law 380 Under the . Illinois statute 381 No distinction in the tracing of descent between reversions and vested remainders on the one side and contingent remainders and executory interests on the other 382 Title XI. adverse possession against reversioners and remaindermen. Topic 1. vhere one enters under a conveyance prom the lipe tenant. Where one enters under a conveyance purporting to transfer the life estate only 383 XXIX CONTENTS Sec. Where one enters under a conveyance hj the life tenant purporting to transfer the fee ^ • • ■ 384 Topic 2. when, the life tenant is disseised and the eemaindee is vested. Besults reached by the cases generally ' 385 What estate does the disseisor of the life tenant have after the statute has run against the life tenant only • 386 Illinois cases apparently contra ." 387 where the life estate is that of a husband by the marital right in his wife 's fee 387 before the first Married Woman's separate property act 387 effect of the Illinois Married Woman's separate property act of 1861 388 Castner v. Walrod 388 Enos V. Buckley 389 where the disseisor of the life tenant enters under a void guardian 's sale of the reversioner's interest 390 Nelson v. Davidson 390 Field V. Peeples 391 Miscellaneous problems 392 suppose the life estate is released to the vested remainderman, or both the life tenant and the vested remainderman convey to a third person 392 it becomes important in applying the statute of limitations to de- termine whether a life estate is subject merely to a forfeiture for a breach of condition, or whether it comes to an end by express limitation before the life tenant 's death 393 suppose the remainderman is also interested in the life estate 394 Topic 3. where the remainder is contingent. The statute cannot begin to run against the remainderman till the event happens upon which the remainder is to vest 395 Where the life tenant is barred by the statute will a legal contingent remainder be destroyed 396 Topic 4. where the adverse claimant has no notice, actual or constructivb, op the instrument creating the life estate. Results of the cases stated 397 Title XII. VARIOUS LEGAL CONSEQUENCES WHICH DEPEND UPON WHETHER THE PUTUBB INTEREST — USUALLY A REMAINDER IS CONTINGENT OR NON-CONTINGENT. When can the tenant in common of a future interest maintain a bill for partition 398 XXX CONTENTS Sec. Bight of holder of future interest to prevent waste by the one in poe- session 399 When the holder of a future interest need not be made a party de- fendant to a suit in chancery 400 Whether an inheritance tax is immediately assessable 401 CHAPTEE XVI. THE STATUTORY EEMAINDEB CHEATED BY THE STATUTE ON ENTAILS AND BEMAINDEBS LIMITED AFTEB AN ESTATE TAIL. ' Title I. THE STATUTORY EEMAINDEB, Statutes 402 Their operation ; . . . 403 The statutory remainder 404 prior to the birth of issue of the donee in tail 404 after the birth of issue of the donee in tail 405 three views as to the character of the remainder and the per- sons entitled to it 405 state of the decisions of the Illinois Supreme Court. 406 Assuming that the statutory remainder is limited to ' ' children " 407 can the remainderman be restricted to a special class of children in the case of an estate tail special 407 at what ppriod of time does the class close* 408 If the langua.ge of the statute were taken literally, who precisely would be entitled to the remainder .' 409 Title II. EEMAINDEES AFTER THE ESTATE TAILi Before the statutory remainder vested by the birth of children of the donee in tail 410 Aftef the statutory remainder has vested by the birth of a child of the donee in tail 411 CHAPTEE XVII. EULE IN SHELLEY'S CASE. Title I. statement of the eule and its application. Topic 1. in general. The Bule in force in Illinois stated 412 Where the life estate and remainder differ in quality— one being legal and the other equitable — the Eule does not apply 413 xxxi CONTENTS Sec. Where tie remainder is not to "heirs" but to "children" the Rule does not apply 414 Where the grant or devise is "to A and his heirs" the Rule has no application j 41^ It does not, however, prevent the application of the Ejile that other estates or interests are inserted between the life estate and the re- minder to heirs 416 The Bule applies though the life tenant takes a part interest in the estate for life and a remainder in the whole, or the entire interest for life and a part interest in the remainder 417 Topic 2. where the limitations are to a for life, remainder "to the heirs OP THE body" of a. There have l;>een dicta and decisions that the Eule does not apply to such limitations 41.8 There are three grounds for insisting that the Rule does not apply , where the remainder is to the "heirs of the body" of the life tenant 419 The recent cases, however, hold that the Rule does apply where the remainder is to "the heirs of the body" of the life tenant 420 Topic 3. WHERE THE REMAINDER IS TO "HEIRS," OR "HEIRS OF THE BODT" OP THE LIFE TENANT, TO WHAT EXTENT CAN "HEIRS," OR "HEIRS OF THE BODT^' BE^ CONSTRUED TO BE WORDS OP PURCHASE AND NOT WORDS OP LIMITATION AND THE APPLICATION OP THE RUl^ THEREBY BE AVOIDED. Conflicting results of the cases 421 What is meant by ' ' heirs " as a word of purchase and as a word of limitation . . . '. 422 The first theory of the application of the Rule is that it applies only when "heirs" in a remainder to heirs is used as a word of limita- ;, tion embracing the whole line of inheritable succession, and that it does not and cannqt apply where "heirs" in a remainder is used as : a word of purchase ". 423 The second theory respecting the application of the Eule is that it applies when the word "heii^" in the remainder is used as a word of purchase '. 424 Neither of the above two theories -is supported by all the results of the English cases which are now recognized as law 425 A third theory which will reconcile at least all the English cases 426 In American jurisdictions the situation is apt to be ehaotifi in the ex- treme 427 The cases in Illinois , 428 Topic 4. where the interests are equitable executory trusts. The Eule applies where the limitations are equitable 429 The Rule does not apply where the trust is executory 430 xxxii CONTENTS See. What trusts are executory 431 ' twp views not generally adopted 431 the generally accepted view 432 suggestions qf the cases in aid of the problem of construction .... 433 Topic 5. the rule does not apply to personal property. • ■ ■ / Conclusion stated 434 Where the bequest is to A for life and then to "A's executors and administrators " 435 Where the bequest is to A for life and then to his "heirs" 436 Where there is a bequest to A for life with a remainder to "the heirs of A's body" 437 There are decisions which seem to hold that upon a bequest to A for life and then to A's heirs, the Rule applies and A has an absolute interest 438 Suppose the limitations of personal property are included in a residuafy gift of real and personal property to A for life and then to A's heirs 439 Title II. METHOD or OPERATION OE THE RULE. The Rule operates in no manner whatever upon the estate of freehold in A, but only upon the remainder , 440 Title III. ' CHARACTER Or THE RULE. The Rule is not one of construction, but an absolute rulp of law which . operates to defeat the intent of the testator or settlor ....'. 441 CHAPTER XVIII. SPRINGI^fG AND SHIFTING FUTURE INTERESTS. Introduction 442 'Title I. by deed — ^future uses. Topic 1. shifting interests by deed are valid in illinois. Introduction , , 443 The- Illinftis authorities are divided 444 cases in support of the validity of shifting interests by deed.... 444 cases against the validity of shifting future interests by deed.... 445, xxxiii CONTENTS ' \ See. Contentions 446 of the oases which seem to hold shifting interests invalid 446 stated '. 446 repugnancy '. . .■ 447 the common law rule that a fee cannot be limited after a fee 448 of cases which hold the shifting interest by deed valid 449 Reasoning of both lines of cases valid so far as it goes. * 450 general view 450 the common law system of conveyancing 451 development under the Statute of Uses 452 the principles of the common law and of the system of conveyanc- ing which developed under the Statute of Uses exist, side by side as part of the layp of Illinois today. 453 The special issue 454 Shifting limitations by deed may be supported here by force of the Statute of Uses 455 conveyances by deed in Illinois have never operated under the eom- , mon law 455 conveyances by deed in Illinois have always taken 'effect un^er the Statute of Uses '. ; .' 456 the fact that our deeds in Illinois may operate under the acts of 1827 and 1872 cannot interfere with the validity of Shifting interests created by them 457 Shifting interests by deed may be supported in Illinois under the acts of 1827 and 1872 458 ^he tendency to hold shifting future interests by deed invalid is re- actionary 459 character of the changes in the law of conveyances 459 the attitude of our Supreme Court , 460 The weight of authority in this State is in favor of the validity of shifting interests by deed 461 Trend of the recent Illinois authorities 462 ' Topic 2. springing future interests bt deed. Conveyances to take effect at the grantor 's death valid 463 the future interest, void at common law, sustained on two theories 464 which of these two views is. correct 465 Conclusion 486 Title II. BY will — EXECUTOBT DEVISES. Executory devises in general valid 457 the authorities 467 three cases contra '4g8 Andrews v. Andrews 46g ixxiv CONTENTS Sec. Ewing V. Barnes and Silva v. Hopkinson 469 Ewing V. Barnes and Silva v. Hopkinson now overruled 470 the recent cases have also disposed of the fallacy that because some shifting interests were void for "repugnancy" all must be void 471 Title III. BT MEANS OF TRUSTS WHETHER CREATED INTER VIVOS OB BY WILL. Equitable springing and shifting interests valid 472 Title IV. validitt' op gifts to classes. Under the feudal land law 473 By devise after the Statute of Wills 474 By a conveyance inter vivos which can take effect as a bargain and sale or otherwise by way of use 475 if the conveyance is to " the children of A, born and to be born ' ' and A has at the time of the conveyance no children, can the after-born children of A take 475 suppose A has at the time of the conveyance a child m esse 476 suppose that by a deed the limitations are to A for life, remain- der to the children of A, "born and to be born," and one child is im esse at the time of the conveyance 477 By the creation of equitable interests in favor of the class 478 TlW-E v. alienation op springing and shifting future INTERESTS IN LAND — PARTITION. By descent, devise, release, and sale on execution 479 By a conveyance to a stranger inter vivos 480 validity at law 480 in equity 481 Title VI. WHEN an EXECUTORT INTEREST VESTS IN INTEREST. Springing and shifting future interests never vest in interest till they take effect in possession or are turned into vested remainders 482 Title vtl. INDESTRUCTIBILITT OP SPRINGING AND SHIFTING FUTURE INTERESTS. General principle .' iS.'? Title VIII. ■WHETHER DOWER IN THE FIRST TAKER 'S PEE IS DEFEATED BT THE TAKING EFFECT OF A SHIFTING GIFT OVER. Buckworth v. Thirkell 484 XXXV CONTENTS CHAPTEE XIX. FUTURE INTEEE3TS IN PEBSONAL PROPEBTY. Sec. Their validity 485 in general ■ 485 exception where articles are necessarily consumed in the using. . . . 486 Nature of the future interest 487 whether legal or equitable 487 whether vested or executory. 48S ' where a chattel real is involved 488 where the limitation is of a chattel 4)ersonal 489 the language of the Supreme Court 489 the point actually decided ". 490 wtether contingent upon surviving the life tenant 491 Eights of those interested in personal property in which future inter- ests are created 492 enjoyment in specie or conversion and investment. 492 where the intent of the settlor is expressed in words 492 where no intent has been explicitly indicated by words 493 how may the secoid taker protect his property interest. 494 CHAPTEE XX. VESTING OF LEGACIES. Sense in which "vest" is used when the question of the vesting of legacies is considered 495 A distinction must be drawn between the case where the question is whether a legacy is contingent on the legatee surviving at a future period of distribution and where the same question arises in respect to legal remainders and. springing interests in land 496 Title I. LEGACIES CHARGED ON LAND. A distinction must be observed between the cases where the question is whether a. legacy payable out of the personal estate is contingent cm the legatee surviving at a future period of distribution and where the same question arises in respect to a legacy charged on land and actually paid out of the proceeds of the land 497 TimB II. ' LEGACIES ACTUALLY PAID OUT,' OP PEBSONAL PROPEBTY. The results reached by' the couTts are for the most part merely sug- gestive as to what considerations will furnish a substantial inference ■ ifbr or against the ■vesting of the legacy ' 498 xxXvi CONTENTS Topic 1. ■where there is a direct gif* with a superadded direction to pay at ■ A FUTUKE TIME. Sec. In these cases the context justifies the prima fade inference that the gift is immediate subject only to a postponement as to payment and , is not contingent upon the legatee surviving the period of distribution 499 TOPIC 2. WHERE THE ONLY GIFTJS TO BE FOUND IN THE DIRECTION TO PAY OE DIVIDE AT A FUTURE TIME. In such cases the context justifies the prima facie inference that the legaqy is cpntingent upon the legatee surviving the date of payment 500 Cases where a difficulty arises in determining whether there is a direct gift with a superadded direction to pay at a future time, or a gift only in the direction to pay at a future time 501 Topic 3. whether the direction to pay at the future time is for reasons personal to the legatee or merely for the convenience op the estate. This ife important in determining whether or not the legacy is con- tingent 502 Gases where the only gift was contained in the direction to convert and divide after a life estate and where the postponement was held to be merely for the convenience of the estate 503 Similar cases which hold, or appear to hold, the legacy contingent upon the legatee surviving the life tenant 504 People V. Jennings 504 Banta v. Boyd 505 • Ebey v. Adams , 506 Barnes y. Johnston '. ^ 507 Strode v. McCormiok 508 Cases where it is doubtful whether the direction to pay at a future time is for the convenience of the estate or personal to the legatefe . . 509 Topic 4, effect on vesting of the payment of interest or income. Cases where the payment of interest or income has no effect on vest- ing distinguished from those where it may have such an effect 510 Principle upon which the payment of interest or income gives rise to an inference in favor of vesting the legacy 511 Where the legacy is to a named individual at a future time, with in- terest or income in the meantime ... .... 512 Where the legacy is' to a class at a future time, with ' tie liieome'in-- ' the meantime • ■ • • ■ -513 XXXVli CONTENTS I Sec. Cases (a) where the inoome is not given during the entire period before ' distribution, and (b) where all the income is accumulated and given at the period of distribution along with the principal 514 Topic 5. legacies' payable when the youngest of sevekal legatees eeaches a given age. ^ The rule of Leeming v. Sherratt 515 Topic 6. miscellaneous grounds op inrerence in favoe of vesting. The fact that the legacy is of a residue, or consists of a trust fund separated from the balance of the estate 516 Where a charge is placed upon the share of the legatee 517 Effect of references to "shares" or "portions" of legatees to whom the only gift is in a direction to pay or divide at a future time. .... 518 Topic 7. EFFECT or GIFTS OVER. Inference in favor of vesting founded upon the presence of a gift over 519 Cases where the gift over furnished an argument for vesting 519a Inference in favor of the gift being contingent founded upon the pres- ence of a gift over .■ 520 Beflecting back a contingency of survivorship from the coiitext of a gift over of what the legatee would have had if living. 521 ' , Topic 8. ' express directions AS TO VESTING. Inference in favor of contingency where there is an express direction as to vesting 522 Topic 9. effect of the gift or legacy being to a class. The general rule is that no inference of contingency arises from the fact that the legacy is to a class 523 Drnry v. Drury 534 Topic 10. effect to be given to the testator's inducement. What attention should be paid to inferences in favor of vesting or , contingency derived from a probable inducement of the testator 525 xxxviii contents Topic 11. cases where no question of vesting arises should be carefully distinguished. See. The cases where there is a gift over if the legatee dies before the period of distribution and where by the happening of the divesting contingency the gift over takes effect,' must be distinguished from the cases where the question is whether the future legacy is subject to a condition precedent that the legatee survive the period of dis- tribution 526 Topic 12. balancing inferences foe- and against vesting. Cases illustrating the manner in which the foregoing considerations, or some of them, must be discovered and balanced against each other in order to obtain a result as to whether or not the legacy is vested or contingent 527 Title III. EQUITABLE INTERESTS IN LAND OR IN A MIXED RESIDUE OP REAL AND PERSONAL PROPERTY. On what basis is the vesting or contingency of l^e gift of such in- terests to be decided 528 [Note on the period to which survivorship is referred in gifts to "sur- vivors" or persons "surviving."] CHAPTEB XXI. GIFTS OVEE UPON THE "DEATH" OF A PBEVIOUS TAKES 8IMPLICITEE OR "WITHOUT CHILDREN," OE "WITHOUT ISSUE," OR "WITHOUT HEIRS.," Title I. TO WHAT PERIOD IS "DEATH" REFERRED. Limitations by will to A simpliciter followed by a gift "at his de- cease " .' 529 Limitations by will to A simpliciter followed by a gift "in case of his death, ' ' or some other expression treating A 's death as a coij- tingent event 530 Limitations by will to a A simpliciter with a gift or gifts over on A 's death and one or more coIUiteral contingencies 531 Limitations by will to X for life, then to A simpliciter, with a gift or gifts over on A's death and one or more collateral contingencies. . 532 the rule of the English eases 532 the course of decision in Illinois is somewhat in doubt 533 some results reached by our Supreme Court are supported by defi- nite special contexts .* 534 xssis. CONTENTS Sec. Limitations to X for life, then to A for life, and in case of A's death and on the happening of a collateral contingency over: 535 Where property is vested in trustees who are directed to distribute at a certain time, so 'that the trust then determines and the legatees, who are to take upon the death of prior legatees, are to do so through the medium of a conveyance from the same trustees 536 Limitations by will to A at a period of distribution after the testator's death, with a gift over if A dies before the period of distribution. . 587 Title II. MEANING or "without" IN GIFTS OVER Ir THE FIRST TAKER DIES "without children." Two possible meanings of the word ' ' without " 538 If there is no independent gift to the children of the first taker, ' ' with- out ' ' means primarily ' ' without children surviving " 539 When there is an independent gift to the first taker 's children or issue, so that a child upon birth acquires a vested interest, "without" may mean ' ' without ever having had " 540 Where there is an independent gift to the first taker's children con- tingent upon their surviving the first taker, a gift over if the first taker "die without children" means die without children surviving the first taker 541 Title III. MKANING OF "vnTHOUT ISSUE" IN GIFTS OVER IP THE FIRST TAKER DIES WITHOUT ISSUE. There are three possible meanings to the phrase "die without issue". . 542 Where there is an independent gift to the issue of the first taker which vests an interest in such issue as soon as born 543 Suppose, however, there is no independent gift to the issue of the first taker 544 results of the English cases and effect of the WlUs Act 544 the position taken by the Illinois Supreme Court 545 in general 545 Stafford v. Bead and Kendall v. Taylor 546 O 'Hare v. Johnston 547 Whether an indefinite failure of issue is mea* where "die without issue ' ' introduces a remainder after an estate tail 548 Results which would follow if our Supreme Court^held a future interest other than a remainder after an expressly created estate tail to have been limited upon an indefinite failure of issue 549 Ewing V. Barnes 550 Title rv. JlIEANING OF "ISSUE" IN GIFTS OVER IP THE FIRST TAKER "DIES WITHOUT ISSUE. ' ' When construed as meaning ' ' children " 551 CONTENTS Title V. MEANING OP "heirs'' IN A GIFT OVER IP THE PIBST TAKEB "DIES WITHOUT HBms. ' ' See. When eonstrued as meaning "heirs of the body" or "children" of the first taker 552 CHAPTER XXII. LIMITATIONS TQ CLASSES. Title I. A GIFT to A CLASS DISTINGUISHED PEOM A GIFT TO INDIVIDUALS. Importance of this question 553 Cases where the class may increase or diminish even after the tes- tator 'a death 554 Cases where the' class may increase or diminish up to the testator's death, but cannot increase afterwards, or may neither increase nor diminish afterwards 555 Suppose ihe gift is to the "children" of a person deceased at the time the will is executed 556 Volunteers of America v. Peirce 557 Title II. VALIDITY OP GIFTS TO A CLASS. . Whfere no interest is limited preceding the gift to the class and sub- sequently born members of the class are intended to take 558 Where the gift to the class is a remainder *. 558 which vests in interest upon , the birth of a member of the class and where it is expressly provided that afterborn members of the class are to take 559 where the - remaindeij to the class is subject to a condition pre- cedent in form which may not happen until after the termina- tion of the life estate -, 560 Title III. RULE IN wild's CASE. Where a devise is made to "A and his children" and at the time of the devise and of the testator's death A has children 561 Where a devise is made to "A and his children" and A has at the time of the devise no children 562 Title IV. DETERMINATION OP CLASSES. Distinction between the rules for the determination of classes and those which determine whether the gift to the class is contingent upon the Biembers of the class surviving the period of distribution 563 xli CONTENTS Sec. Rule when the period of distribution is the death of the testator S64 Eule when the period of distribution is the termination of a life estate 565 Suppose the property to be distributed to the class is subject in part to a life estate and the gift to the class is in terms immediate 566 Eule when the period of distribution comes because of the happening of a contingency to, a member of the class 567 where there is a contingent gift to the children of A who reach twenty-five ^."^ where the gift to the class is vested. 568 where the gift is to children of A, to be divided among them when the youngest reaches twenty-one 569 where the gift is after a life estate to such children of A as reach twenty-one 570 Title V. MEANING OP "hEIES" IN A LIMITATION TO THE TESTATOR'S " HEIRS, '^ OR THE ' ' HEIRS " OP A LIVING PERSON. Primaty meaning of ' ' heirs " 571 Gift to the testator 's heirs where a, preceding interest is expressly lim- ited to one who is an heir or the sole heir of the testator at his death 572 Whether a surviving spouse is included in a gift to the deceased spouse 's heirs-at-law 573 where no preceding interest is limited — distributive construction. . 573 where a preceding interest for life is limited to the spouse with a gift over to the testator's heirs , 574 [Note on eases where "heirs" has been construed to mean "children."] v Title VI. MEANING OP "issue" IN GIFTS TO "ISSUE." The primary meaning of "issue" — "i^sue" as including descendants and as limited to children '. 575 When issue has been held to include all descendants the question arises, does it mean all descendants per capita or does it include only those descendants who have no ancestors living and who stand in the place of their ancestors deceased 576 introductory 576 suppose the gift is direct to issue and not to issue by way of sub- stitution after an anaestor deceased to whom the gift was orig- inally made 577 suppose the gift is to issue by way of substitution in place of a gift to the ancestor 578 suppose the gift is "to the children of A and the issue of any deceased child " 579 suppose there is a gift "to the children of A and the issue of any deceased child, such issue to take the parent's share" or "to represent and take the parent's share". 580 xlii CONTENTS See. suppose the gift is of one thousand dollars "to A, a;id if A die before the period of distribution then to his issue, said issue to take the share of their parent" or "to represent and take the parent's share," or suppose the gift is to A for life and then to his issue, "the issue to take the .parent's share" or "to represent and take the parent 's share " 581 the present state of the cases in Massachusetts 582 what is meant by the statement that "where the gift to the issue is substitutional they take per stirpes and not per capita" 583 Title VII. ADOPTED CHILDEEN — HOW PAR INCLUDED IN GIFTS TO "HEIRS," "ISSUE,'' OR "children" of the ADOPTING PARENT. Problem stated and principles to be applied. 584 Analysis of the cases with reference to whether the adoption act can be construed as suflieient to give the adopted person the status of an "heir," "child" or "issue" 585 Analysis of the cases with reference to whether the language of a will, settlement or insuralice policy is to be interpreted as including all persons who acquire the status of "heirs," " children'" or "issue," no matter in what manner 586 the construction given to the word ' ' heirs " 586 as to the construction of the words "children" or "issue" in a will, settlement or insurance policy , 587 the words "children" or "issue" in a will, settlement or insurance policy executed when a general adoption act was in force and by, or procured by, the adopting parent, prim- arily and in the absence of a special context to the contrary, includes a person who obtained by adoption the status of a child ; 587 the words "children" or "issue" in a will, settlement or in- surance policy executed while a general adoption act was in force, and even though the same be executed or pjrocured by one other than the adopting parent, primarily and in the absence of a special context to the contrary, includes a person who obtains by adoption the legal status of a "child" or "issue" 588 the foregoing proposition is not controverted. .. .: 589 ' by the exception in the adoption act providing that the adopted child "shall not take property expressly lim- ited to the heirs of the body or bodies of the parents by adoption" 589 by the Massachusetts Act of 1876 which expressly ex- cludes the adopted child from taking under the desig- nation of ' ' children ' ' in the will or settlement of one other than the adopting parent, unless there is an ex- press intention that such child shall' be included 590 xliii CONTENTS Sec. by those cases where the adopted child was excluded be- cause the will or settlement was executed long before there was any adoption act in force -. 591 by cases where the special context of the instrument shows that "children" or "issue" meant a class composed of those who obtained their status by actual birth only 592 it is controverted by two cases — one from Maine and the other from Wisconsin - 593 in the priinary meaning to be placed upon ' ' children "or "issue" in a will, settlement or insurance policy, no dis- tinction is to be made between the instrument executed or procured by the adopting parent and one executed or pro- cured by a stranger 594 quaere whether the fact that when the will, settlement or in- surance policy is executed there is no general adoption act in force will prevent the word "children" from including a person adopted under a subsequent adoption act 595 CHAPTEB XXIII. DIVESTING CONTINGENCIES AND CONDITIONS PEECEDENT TO THE TAKING EFFECT OF EXECUTORY DEVISES AND BEQUESTS— ACCELERATION. Interests are not divested unless the event upon which the divesting is to occur strictly happens 596 Effect of the failure of a gift over upon the preceding interest. ..... 597 Effect upon an executory devise of the failure of the prior gift 598 Acceleration of future interests 599 CHAPTER XXrV. CROSS LIMITATIONS. Title I. IMPLICATION OP CROSS LIMITATIONS. General principles 600 Cheney v. Teese and Addicks v. Addicks 601 Title II. "survivor" construed "other." The typical case where ' ' survivor ' ' is construed ' ' other " 602 Suppose in the typical case given the ultimate gift over on the death of all the tenants for lif q without leaving issue be eliminated 603 Suppose, while the original gifts are to individuals for life then to their issue, the gift over is to the survivor absolutely and not merely to the survivor for life and then to the survivor 'a issue 604 xliv CONTENTS Sec. Suppose the first gift to A and B is absolute (instead of being for their lives with remainder to their issue), with a gift over if. either die without leaving issue, to the survivor 605 Suppose the limitations are to sons absolutely at twenty-one, and to daughters for life, and then to their issue, but if either sons or daugh- ters die before the period of distribution without issue, then to the survivors 606 Suppose all the shares are "settled" on daughters, as in the typical case, and suppose one daughter dies without leaving issue and then her issue all die; subsequently another daughter dies without issue; dp the representatives of the issue of the first daughter take a share of the interest of the daughter dying without issue 607 Title III. ACCRUED SHAEES. Accrued shares 608 CHAPTEE XXV. POWEES. Title I. CLASSIFICATION, VALIDITY AND EXTINGUISHMENT OP POWERS — APPOINTMENT IN FRAUD OF POWERS. Classification of powers 609 Validity of legal interests created by the exercise of a power . . 610 Extinguishment of powers 611 Appointment in fraud of powers 612 Special restrictions upon the capacity to be a donee of a power or to exercise a power attempted to be conferred 613 Title II. ILLUSORY APPOINTMENTS AND NON-EXCLUSIVE POWERS. Illusory appointments 614 Non-exclusive .powers 615 The hotchpot clause 616 Title III. SURVIVAL OP POWERS. Introductory ■ t • ■ • • 617 Topic 1. powers surviving pursuant to statute. Survival in case of the death of one of several executors 618 Survival in case one of several executors refuses to act 619 slv CONTENTS See. Survival in case one of several executors fails to qualify 620 ■ No survival to the administrator with the will annexed 621 Topic 2. bxebcise op the power which did not sdevive supplied by holding as constructive trustees those who take in depault op appointment. Where the power is in executors to sell real estate to pay debts or legacies, or both 622 Suppose the power is given to executors to sell real estate and dis- tribute the proceeds to those who would take the real estate if it were not sold 623 Topic 3. POWERS IN executors' AND TRUSTEES CONSTRUED AS EXERCISABLE BY WHOEVER rOE THE TIME BEING HOLDS THE OITICE. Distinction between real and spurious powers 624 Problem wholly one of expressed intent '. 625 Cases where the power is given to trustees who take an absolute interest in the trust estate 626 Cases vfhere the beneficial interest is in A and where B and have power to divert the beneficial interest by appointment to D 627 Cases where a real power is given to executors to sell to pay debts or legacies, or both 628 . Cases where the power in executors is one not only to sell to pay debts or legacies, or both, but also to sell for the convenience of the estate and hold the proceeds for the one entitled to the land 629 Cases where there is a power in executors to sell, not, however, to pay debts or legacies, but to hold the proceeds for the benefit of those entitled to the land in place of the land. 630 Cases where the executors have a discretionary power to sell and apply the proceeds in a way which changes the beneficial interests 631 Suppose that trustees have only a term for years or a life estate and a power to sell the fee and hold the proceeds for the devisee of the legal estate in fee after the term or the life estate 632 Treatment of the subject of survival of powers by distinguished English writers 633 Title IV. POWERS IN TRUST AND GIFTS IN DEFAULT OP APPOINTMENT. The problem stated 634 Where there is a devise to trustees upon trust to transfer to certain per- sons, with power in the trustees to make a selection or exercise a * power to appoint among the beneficiaries 635 Where there is no gift to trustees but only a real power, there may still be sufficient language from which the court can properly find a direct gift to the objects of the power ; 636 xlvi CONTENTS See. Suppose there is merely a power to appoint to special objects and no express gift in default of appointment, and no basis in the language used for any direct gift to such objects 636 / Title V. APPOINTED PKOPEBTT AS ASSETS. The usual rule in force in Illinois 638 Title VI. I defective execution. Suggestions by our Supreme Court in favor of the usual doctrine 639 Title Vll. ' V7HAT WORDS BXEECISE A POWEE. The plain ease ' 640 The difficult case occurs where the donee makes a general gift of all his property without any direct reference to the power or his intention to exercise it , 641 Title VIIl. EFFECT OF EXCESSIVE EXECUTION. Usual rule followed in Illinois 642 I Title IX. EXISTENCE AND SCOPE OF POVCEBS OF SALE AND LEASE. Power in executors and trustees to sell and dispose of the fee of real I estate '. 643 existence of the power 643 extent of the power .- 644 Power in trustees to make leases 645 when the trustee' has a legal estate in fee simple 645 when the trustee has a legal estate for years or for the life of the equitable life tenant only 646 In the absence of power in trustees to seU the fee or to make a long- term lease, such sale or lease may be effected with the aid of a court of equity in cases of necessity 647 Power in life tenants to sell or dispose of the fee 648 existence of the power , 648 extent of. the power 649 disposition of the proceeds of sale 650 Power of life tenant to make leases 651 xlvii CONTENTS CHAPTEE XXVI. BULE AGAINST PEEPETUITIES. Title I. THE BTTLE AND ITS COROLLARIES. See. The Enle as stated by Professor Gray is in force in Illinois.' 652 The future interest must vest in the proper time 653 What is meant by "vest" ■ , 654 Other corollaries referred to , 655 Eeferences to the Eule as stated in Bouvier's Law Dictionary 656 The dif&culty in most cases has to do with the application of the. Eule to the particular limitation 657 Title II. THE rule against PERPETUITIES DISTINGUISHED PROM THE RULE WHICH MAKES VOID RESTRAINTS ON ALIENATION AND PROVISIONS REQUIRING A TRUSTEESHIP (OTHERVnSE VALID) TO BE EPPECTTVEl AT TOO REMOTE A TIME. The special rule as to restraints on alienation and provisions for inde- ■ struetible trusts ,. 658 The Illinois eases 659 Trusts for the perpetual care of a cemetery lot 660 Effect on other provisions of holding void a requirement that a trust should remain indestructible for too long a time 661 Title III. INTERESTS SUBJECT TO THE RULE. Legal interests 662 Equitable interests 663 Contracts 664 Bauer v. Lumaghi Coal Co. and London & S. W. Ey. v. Gomm 664 , options to purchase , . 665 Title IV. INTERESTS LIMITED TO TAKE EFFECT "VTHEN DEBTS ABE PAID," "A TRUST EXECUTED," OR "A VnLL PROBATED." Introductory 666 Suppose a term is given to trustees upon trust to pay debts and subject to the term the property is devised to A absolutely 667 Suppose the fee is given to tTustees upon trust to pay debts and when debts are paid the land is devised to A absolutely -668 is A 's interest legal or equitable 668 suppose A 's interest be equitable _ 669 xlviii CONTENTS See. Suppose legacies are bequeathed to several and the residue of the testa- tor 's personal estate alone is bequeathed to A "when the testator's debts and legacies are paid and the estate settled". 670 Suppose there are bequests of several legacies and then a devise to A absolutely of the residue of the testator's real and persoiial estate "when debts and legacies are paid and the estate settled" 671 Suppose that Blackacre be devised to A in fee when the testator's debts are paid, there being no charge of the debts upon the real estate by words, but only by the usual statute making real estate liable for the payment of debts after the personal estate is exhausted 672 Suppose a devise be made of Blackacre to A in fee when the testator's . debts and legacies are paid and neither the debts nor legacies are charged upon the real estate by the testator's words or by any statute 673 Suppose a devise in fee to trustees upon trust to pay debts and legacies and when the same are paid to divide the estate among such of his children or more remote issue as may "then" be living 674 Suppose that the devise be in fee to trustees upon trust for A for life and immediately upon A 's death to pay A 's debts and when his debts are paid to divide among the testator 's then living issue .... 675 Gifts conditioned upon the devisee making payments to others 676 Title V. lilMITATIONS TO CLASSES. Introductory 677 Problem where the interest to the class is vested as distinguished from executory, but subject to a postponed enjoyment clause 678 cases (a) and (b) 678 cases (c) and (d) 679 eases (e) and (f ) 680 Problem where the interest to the class is contingent upon their attain- ing twenty-five 681 cases (a) and (b) .'' 681 TiTLK VI. SEPARABLE LIMITATIONS. Contingencies separated by act of the testator or settlor 685 Separation of contingencies by operation of law — Eule of Challis v. Doe. 686 Title VII. APPLICATION OF THE RULE OF DESTRUCTIBILITY OP CONTINGENT REMAINDERS TO PREVENT THE VIOLATION OF THE RULE AGAINST PERPETUITIES. Introductory 687 Suppose the legal contingent remainder is limited to a class 688- Supppose the future interest is one which may take effect as a remainder or as a shifting interest ,. • 689 CONTENTS Title VIII. POWERS. See. Powers void in their creation because they may be exercised at too remote a time 690 Invalidity for remoteness in the exercise of a valid power 691 where the power is special 691 where the power is general to appoint by deed or will , 692 where the power is to appoint by will only, but is as general as such a power can possibly be ^ I . .. . 693 problem stated 693 the cases are in. conflict 694 solution of the problem on principle 695 Title IX. LIMITATIONS AFTER AN ESTATE TAIL. Validity of such limitations 696 Title X. CHABITIES. Trust for charitable purposes not void for remoteness though the trust must last indefinitely 697 Where a charitable bequest is to a corporation or association not yet formed , 698 Title XL accumulations. Topic 1. apart teom the statute on accumulations. Accumulations other than for charity 699 Accumulation for charitable purposes 700 Topic 2. the statute on accumulations. The Thellusson Act re-enacted in Illinois .'.... 701 Title XII. CONSTBUOTION. Attitude of the court in handling questions of construction which must be determined before the Rule is applied 702 Modifying clauses 703 Title XIII. ESTOPPEL AND ELECTION. One who has received an interest devised by a wiU is not precluded from attacking the provifiions of the same will on the ground that they ' violate the Rule against Perpetuities 704 1 CONTENTS Title XIV. effect op failure of some limitations for remoteness on others. Topic 1. effect on prior limitations not too remote when subsequent limita- tions fail for remoteness. Sec. General rule as stated by our Supreme Court in Barrett v. Barrett 705 Cases where the court held that the limitations not void for remote- ness should be enforced ,. 706 Cases where the valid portions of the will failed along with the invalid. 707 Summary of conclusions from the cases 708 Gray's statement in his Rule against Perpetuities 709 Topic 2. effect on subsequent limitations when prior limitations are void for remoteness. The rule of Monypenny v. Bering 710 BOOK V ILLEGAL 'CONDITIONS AND RESTRAINTS ON ALIENATION CHAPTER XXVII. FORFEITURE AND RESTRAINTS ON ALIENATION. Forfeiture on alienation distinguished from restraints on alienation . 711 Title I. forfeiture on alienation. Topic 1. of a fee simple absolute or an interest in personalty. Where the fee simple or absolute interest is in j)ossession 712 Forfeiture upon alienation of future interests 713 Topic 2. of estates for life or for tears. Forfeiture upon the alienation of a life estate 714 Forfeiture upon the alienation of a term for years 715 Topic 3. of an estate tail or the statutory estates in place thereof. Forfeiture upon the alienation of an estate tail 716 li CONTENTS Title II. forfeituke on failure to alienate gifts over on intestacy. Topic 1. where the first taker has a fee or absolute interest. Sec. Intrpduetory — Typical cases stated for consideration 717 Consideration of cases 3 and 3a 718 Cases 2 and 2a 719 Case 1 — Gifts over on intestacy 720 result of the authorities ,- 720 excuse for reconsidering the authorities upon principle 721 reasons for holding void gifts over on intestacy -. 722 of personal property 722 of real estate 723 Case la — Gifts over on intestacy and failure of issue 724 on principle the gift over should be held valid even though the gift over on intestacy be held void 724 state of the authorities 725 Topic 2. where the first taker has only a life estate. Gifts in default of the exercise of a life tenant's power of disposi- tion or appointment are valid 726 Title III. RESTRAINTS ON THE ALIENATION OF A FEE SIMPLE OR ABSOLUTE INTEREST IN PERSONALTY. Eeetraints on the alienation of a legal estate in fee or an absolute in- terest in personal property 727 Where the interests are equitable there are serious diflS.culties in effect- ing an involuntary alienation, even where no express restraints on alienation are imposed 728 By an extension of the Rule of Claflin v. Claflin which permits the crea- tion of indestructible trusts of absolute^ and indefeasible interests, restraints on alienation during the time the trust remains inde- structible have also been permitted 729 Title IV. RESTRAINTS ON THE ALIENATION OF ESTATES FOR LIFE OR FOB, YEARS. Restraints on alienation of a life estate 730 when the interest is legal 730 where the life interest is equitable '. 731 lii CONTENTS TlTIiE V. indestructible tbds'ts op absolute and indefeasible equitable interests. 'Topic 1. taken by themselves and considered separatelt from any restraints ' on alienation the'i^ are valid provided they are properly limited in time. See. The doctrine of Claflin v. Claflin 732 how far recognized in this State 732 how far sound on principle 733 the authorities at large 733 reasoning of the English cases 734 the reason of repugancy unsound ....,-..' 735 reasoning based upon public policy'. 736 preliminary 736 the duration of the postponement must be limited in time. 737 consideration of the precise issue involved '. 738 Topic 2. a holding, however, that restraints' on alienation (attached to the absolute and indefeasible equitable interest while the trust remains indestructible) are valid, is indefensible. Such a holding has been made in Massachusetts and Illinois 739 The position of the court in the above eases is inconsistent with deci- sions already made and adhered to, and contrary to the weight of authority , 74? It is contrary to, public policy 741 Title VI. CONSTRUCTION — ^WHAT WORDS ARE SUFFICIENT TO CREATE RliSTRAINTS ON ALIENATION OR A SO-CALLED SPENDTHRIFT TRUST. Introductory 742 Bennett v. Bennett , '. 743 Wagner v. "Wagner 744 Wallace v. Foxwell 745 O 'Hare y. Johnston 746 Hopkinson v. Swaim and Newcomb v. Masters 747 Conclusion 748 CHAPTER XXVIII. ILLEGAL AND IMPOSSIBLE CONDITIONS. When the condition is subsequent and impossible of f ulfilhnent or illegal 749 Where the condition is precedent and illegal or impossible. ." '. , 750 liii CONTENTS See. What conditions are illegal 751 conditions in restraint of marriage , 7S1 conditions to induce huslDand and wife to live apart or get a divorce. 752 THE AUTHOE'S ARTICLES PUBLISHED IN VARIOUS REVIEWS AND USED WHOLLY OR IN PART IN THE PREP- ARATION OF THIS WORK: INTERPRETATION : Considerations Preliminary to the Practice of the Art of In- terpreting Writings, 28 Yale Law Journal, 33. .§§ 122-183, 142, 143 ESTATES CREATED: Estates Created, 2 Illinois Law Bulletin, 3 §§ 153-215 Estate Which a Trustee Takes, 6 Illinois Law Review, 549. .§§ 183-193 Implication of Life Estates, Distributive Construction and Disposition of Intermediate Income, 10 Michigan Law Review, 509 §§ 204^209 RIGHT OF ENTRY FOR CONDITION BROKEN: Effect of Words of Condition in a Deed, 3 Illinois Law Review, 280 §§ 219-225 CLASSIFICATION OF FUTURE INTERESTS, REVERSIONS AND REMAINDERS, CONTINGENT REMAINDERS, AND DISTINCTION BETWEEN VESTED AND CONTINGENT REMAINDERS: Contingent Future Interests After a Particular Estate of Freehold, 21 Law Quarterly Review, 118 Future Interests in Land, 22 Law Quarterly Review, 250, 383. ■ Vested and Contingent Remainders, 8 Columbia Law Review, 245 A Modem Dialogue Between Doctor and Student on the Dis- tinction Betwen Vested and Contingent Remainders, 24 Law Quarterly Review, 301 Vested and Contingent Future Interests in Illinois, 2 Illinois Law Review, 301 Distinction Between Vested and Contingent Remainders in Illinois, 8 Illinois Law Review, 225 §§ 357-368 The Later History of the Rule of Destruetibility of Contin- gent Remainders, 28 Yale Law Journal, 656 §§ 96-106 Adverse Possession Against Future Interests, 14 Illinois Law Review, 124 y 383-397 STATUTORY ESTATES IN PLACE OF ESTATES TAIL: Statutory Estates in Place of Estates Tail, 13 Yale Law Journal, 267 '. RULE IN SHELLEY'S CASE: Application of the Rule in Shelley 's Case Where the Limita- tions are Equitable or Where There is an Executory In- terest, 8 Illinois Law Review, 153 §§ 429-=433 liv CONTENTS Sec. Application of the Eule in Shelley's Case Where "Heirs" in a Bemainder to the Heirs is Used as a Word of Pur- chase and not as a Word of Limitation, 28 Law Quar- terly Eeyiew, 148 ' §§ 421-428 The Eule in Shelley 's Case Does Not Apply to Personal Property, 4 Illinois Law Review, 639 §§ 434-439 SPECIAL PROBLEMS OF CONSTRUCTION: Meaning of the Word "Issue" in Gifts to "Issue," 6 Illi- nois Law Review, 217 , §§ 575-583 Rights of Adopted Children, 9 Illinois Lfiw Review, 149 §§ 584-595 POWERS: Survival of Powers, 6 Illinois Law Review, 448 §§ 624-633 Power in Trustees to Make Leases, 7 Illinois Law Review, 428 ^ §§ 645-646 Power of Life Tenant to Dispose of the Pee, 7 Illinois Law Review, 504 §§ 648-649 EULE AGAINST PERPETUITIES: How Par Interests Limited to Take Effect "When Debts are Paid," or "An Estate Settled," or "A Trust Executed and Performed, ' ' are Void for Remoteness, 6 Illinois Law Review, 373 §§ 666-675 Vested Gifts to a Class and the Rule Against Perpetuities, 19 Harvard Law Review, 598 Several Problems of Gray's Rule Against Perpetuities, 2nd. ed., 20 Harvard Law Review, 192 General P'owers and the Rule Against Perpetuities, 26 Har- vard Law. Review, 664 §§ 690-695 MISCELLANEOUS : The Will of an English Gentleman of Moderate Fortune, 19 Green Bag, 214 Reforms in the Law of Future Interests Needed in Illinois, 1 Illinois Law Review, 311 It TABLE OF CASES Note. — Oases marked with an asterisk are reprinted in the author 's Cases on, Future Interests. Abbott V. Abbott..444, 449, 461, Abbott V. Essex Co. . , Abbott V. Holway 458, Abbott V. Jenkins 99, 106, 309, 312, Abel's Case 34, Abend v. Endowment Tumd. . . . Abrahams v. Sanders 141, Abrams v. Watson Ackers v. Phipps 208, Ackland v. Lutley 187, 192, Ackless V. Seekright ......157, 445, 467, 471, 479, Adams V. Guerard * Adams v. Savage 80, 452, Adams v. Valentine 222, Addicks V. Addioks Adshead v. Willetts *Aetna Life Ins. Co. v. Hoppin 309, 321, 359, 406, 412, 418, 420, 421, 423, 424, 427, Ablfield V. Curtis 164, 420, 467, 470, Alton V. Brooks Akers v. Clark... 176, 305, 412, Aldborough v. Trye Alexander v. Masonic Aid Ass 'n Alford V. Bennett AUardt v. People Allen V. McParland.. .303, 307, Allen V. Markle Allen V. Tobias Allen V. Watts Allison V. Allison Sec. Sec. 462 Allison v. White 384 164 Aloe V. Lowe i i . 465 161, 166, 301, 467, 470, 484 Alton V. Fiahback 292 358 Ambrose v. Boot. .......,, 266, 276 423 American Bible Society v. Price 400 697 American Express Co. v. Pinck- 534. Bey *. 181 282 Ames v, Ames 69, 190 209 Ames v. Smith .^ 533 645 Anderson v. Anderson 196 Anderson v. Menefee. .... .500, 513 720 Anderson v. Smith. 323 67 Anderson v. Stewart 178 465 Anderson v. Williams. ..... 574, 657 223 Andrew v. Andrew 486 601 Andrews v. Andrews 171 468, 656, 697, 698 Andrews v. Lincoln 500, 513 Andrews v. Eoye. 724 428 Angell, Petitioner 431 Angell V. Eosenbury 193 552 Angus v. Noble 660 604 Annable v. Patch 566 723 Annin's Ex'rs v. Vandoron's 370 Adm'r 719 573 Anonymous (Bro. N. C. by 137 March, 89) . . .' 66 291 Anonymous (Cro. El. 46) .' 65 732 *Anonymous (2 Haywood 161) 196 '. 108, 487 259 Anonymous (Jenk. 190) 50, 59 503 *Anonymous (March, 106) 107 573 Anonymous (Mooie, 554)...'... 399 Ivii ' TABt/B OP CASES * Archer 'a Case 77, 81, 85, 97, 309, 421, 423, 425, 427, Archer v. Brockschmidt 421, 423, Archer v. Jacobs. . . .' , . . . 101, 103, 104, 106, * Armstrong v. Barber 499, 500, 509, 510, 512, 516, ■ 518, 523, 527, 528, 657, 659, 660, * Armstrong v. Eldridge Armstrong v. Wholesey Arnold v. Alden 472, 528, 531, 544, 545, 574, Arnold's Trusts, In re Ashby V. McKinloek 467, 470, 531, ' Ashelf ord v. Willis * Ashf orth 's Trusts, In re Ashland, Village of, v. Greiner *Ashley v. Ashley *Aslunore's Trusts, In re Ashton 's Estate, Be , Askew V. Askew Askins v. Merritt 301, 398, 467,470, Aspinall v. Petrin 205, *Astley V. Micktethwait. . 88, 99, Atherton v. Boche. Atkinson v. L 'Estrange Atkinson v. Lester 261, Attorney-General v. Bracken- bury . Atty. General v. Corporation of Southmolton Attorney General v. Gleg Attorney General v. Hall . . 199, Attorney General v. Merrimack Mfg. Co., ! Attorney General v. Wax Chan- dlers^ Co *Attwater v. Attwater 206, * Atwaters v. Birt 6lT|' Auburn, Village of, v. Goodwin. Auger V. Tatham Augusta, Village of, v. Tyner. Sec. Sec. Austin V. Bristol 575 Austin V. Cambridgeport Parish 219 428 Avery v. Avery 678, 733 Avery v. N. Y. Cen. B. E. Co. . 225 424 Avery v. United States 220 Ayer v. Bitter'. 69, 190 311 Ayers v. Chicago Title & Trust Co 170, 401, 571, 572 Ayres v. Clinefelter 619, 630 Ayling v. Kramer 225 673 Aylesford v. Morris. 370 600 Bacon, In re "... 626 58 Bacon 's Appeal 69, 189, 190, 192, ,645 575 Bacon v. Proctor. . . .' 669 603 Badger v. Gregory. 602 Bagshaw v. Spencer 89, 429, 430 720 Bails v. Davis. 412, 417, 440 64 Bainton v. Ward 638 662 Baker v. Baker 196 220 Baker v. Brown 740 600 Baker v. Hays y 258 513 Baker v. Oakwood 385, 392 573 Baker v. Parson 187, 192, 645 602 Baker v. Scott 158, 184, 412, 413, 415, 418, 727 419, 429, 430, 440, 441, 453 206 Baker v. White 187 316 Balch v. Johnson 584 404 Balch v. Pickering 603 435 Ball V. Peck 252 268 Ballance v. Fortier 233, 245 Banta v. Boyd 641 472, 499, 505, 520, 526 Baldrige v. Coffey 647 222 Barclay v. Piatt.. 69, 169, 307, 308 ana Barger v. Hobbs .64 719 219 Barker's Estate 678 Barker v. Barrens^. 220 Barker v. Keete. 61, 65, 456 Barnardiston v. Lingood 370 Barnes v. Allen '. 324 222 Barnes v. Gunter 393 712 Barnes v. Johnston 627 507, 520, 526, 534 292 Barnes v. Northern Trust Co. . 571 241, 379 292 Barnet v. Barnet 205 Iviii TABIiB OF CASES Barnitz v. Casey v Barr v. Gardner 99, 186, 309, 310, *Barrett v. Barrett ....705, 706, 707, Barrett v. Hinckley.'. . .64, 217, Bartlett, Petitioner » Bartlow v. C. B. & G. E. Co Barton v. Barton 494, Barton v. Briscoe Bashore v. Mackenzie Bassett v. Wells. 575, Bastard v. Proby Bates V. Gillett 173, 174, 196, 303, 324, 330, ...504, 506, 563, 565. Bates V. Schraeder Bates V. Spooner Bates V. Winif rede Coal Co ... . Battersby's Trusts, In re Batterton v. Yoakum Bauer v. Lumaghi Coal Co. 664, Baulos V. Ash 178, Bauman v. Stoller 162, 164, 165, Bawtree v. Watson Bayley v. Bishop Bayley v. Morris Beacroft v. Strawn 414, Beattie v. Mair Bechdoldt v. Bechdoldt Beet's Trusts, In re Becker v. Becker 301, 467, Beckwith v. Beckwith Beddall v. Maitland Beeson v. Burton 20, Balding v. Parsons 99, 106, 309, 310, Belfast Town Council, In re . . . *Belfield v. Booth Belinski , v. Brand BeU V. Bruhn 238, 249, Belmont v. O 'Brien Belslay v. Engel. 414, Bence, In re 410, Benn, In re Sec. 380 338 708 230 678 384 650 611 648 577 433 575 380 669 193 579 202 665 197 462 370 503 309 562 262 384 603 751 603 262 201 311 343 674 254 252 626 441 686 603 Sec. *Bennett v. Benilett .*.... 430, 436, 438, 500, 501, 512, 516, 522, 525, 526, 527, 731, , 732, 740, 743 Bennett v. Morris 106, 309, 311 Benson v. Tanner 95, 99, 106, 306, 809, 310, 311, 319, 412, 428 Bergan v. Cahill ; 162, 168, 717, 726 Bergengren v. Aldrich 192, 645, 646 Bergman v. Arnhold..l89, 191, 332 Berny v. Pitt 370 Berridge v. Glassey 181 Berrien v. Berrien 628 Berry v. Williamson 433 Berwyn, City of, v. Berglund. . 300 Botz V. Parling 347, 398, 524 Berans v. Murray 641, 649 Bewick, In re, Byle v. Byle 674 *Beyf us v. Lawley 612 Bigelow V. Cady 412, 596, 621, 653, 656, 658, 659, 661, 663, 678 BiggerstafE v. Van Pelt , 304, 379, 723 *Bilham, In re 607 Billings V. People 401 Bingel v. Volz. ...... .135, 137, 138 Binns v. La Forge 69, 728, 731 Bird V. Hunsdon 205 Bird V. Luckie 572 Birdsall v. York 575, 578 Birmingham Canal Co. v. Cart- wright 665 Bishop V. Davenport 374 Bishop V. Morgan 135, 137 Bishop V. Eemple 648 Black V. Jones 574 Black V. Ligon 645 Blaekman r. Fysh 99, 101, 104, 442 Blackmore v. Boardman 665 Blackstone v. Althouse 158, 352, 353, 467, 470, 479, . .480, 483, 524, 531, 546, 556, 563 Blackwell v. Bull 205 lix TABbE OP CASES Sec. Blair v. Carr , 293 Blair v. Johnson 383 Blair v. Vanblarcum .196, 411 Blakeley v. Mansfield 99, 106, 309, 310, 319, 338, 541, 546, 551 *BlanehaTd v. Blanohard 327 Blanchard v. Brooks 309 Blanchard v. Detroit, Lansing & Lake Michigan E. E. Co . . 222, 225 Bland v. Bland 574 Bland v. Williains 519 *Blasson v. Blasson 326 Blanchard v. Maynard 207, 472, 482, 528 Blatchford v. Newberry 123, 472, 528, 563, 565, 599 Blinn v. Gillett 151 Blodgett V. Stowell 590, 593 Bloomington v. Brophy 260 Boatman v. Boatman 307, 308, 309, 320, 358, 365, 367, 378, 444, 482 Board of Education v. Trustees 220, 240, 243, 244, 662 Boehm v. Baldwin 561, 562 BoUes V. Smith 556 *Boud V. Moore 99, 106, 123, 151, 164, 309, 310, 311, 318, 319, 359, 363, ■ '. 539, 572, 577 Bond V. O 'Gara 383 Bonner v. Bonner. 421, 423, 424, 425 Boon V. Cornf orth 205 Boone v. Clark 240 Boosey v. Gradner 160 *Booth V. Booth 516 Boothby V. Booihby 370 Boraston's Case 309, 334 Bordereaux v. Walker 379 "Boston Safe Deposit & Trust Co. V. Collier 729, 739 Boston Safe Deposit Co. v. Mister 191 Bourne, In re 99, 102, 104 Bowen v. AUen ; . .135, 136, 137 Bowen v. Humphreys 67 Sec. Bowen v. John 1-59, 162, 727 Bowerman v. Sessel 168, 202, 499, 648, 649, 722, 723 Bowers v. Smith 704 Bowes V. Heaps 370 Bowler v. Bowler 330, 465, 466 Bowlin V. White ' 406 Bowman, In re 603 Boyd V. Broadwell 504, 505 Boyd V. Fraternity Hall Ass'n.. 227 Boyd V. Strahan 108, 168, 202, 490, 648 Boyer v. Allen 648 Boyes v. Cook 641 Boykin v. Ancrum 392 Boynton v. Hubbard 370 Brackenbury v. Gibbons 102 Bradford v. Monks 626 Bradley v. Jenkins.. . .162, 168, 726 Bradly v. Westeott 648 Bradsy v, Wallace 164, 301, 467, 531, 552, 574 *Bradshaw, In re 612 Brandenburg v. Thorndike 674 *Brandon v. Robinson 731 Branson v. Bailey. .. .531, 656, 657 * Brant v. Virginia Coal & Iron Co 648 Brantley v. Porter 187 Brasher v. Marsh 173 Brassey v. Chalmers 628 *BTay V. Bree 665, 690 Bray v. Miles 585, 588, 594 Breckbeller v. Wilson 173, 328, 338, 345, 351, 358 Bredenburg v. Bardin .. c ..... . 628 Breit v. Yeaton 639, 644 Brenchley v. Higgins 370 Brenoek v. Brenock 164, 531 Brewick v. Anderson 351, 353, 524, 563 Brian v. Melton 395 Brislain v. Wilson 412, 440 Britten v. Miller 566 Brokaw v. Ogle 308 Bromley v. Wright 503 Brooke v. O 'Boyle 268, 272 Bromfield v. Crowder 333 Ix TABLE OF CASES Broughton v. Langley Brown v. Brown (247 111. 528) 303, 307, 308, 330, 462, 597, Brown v. Brown (253 111. 466) Brown v. Bryant.. 421, 423, 424, Brown v. Chicago & N. W. Ky. Co 222, *Brown v. Higgs Brown v. Kamerer Brown v. Keller Brown v. Miner Brown v. Peck Brown v. Smith Brown v. Tilley Brown v. Wadsworth. .187, 192, Brown v. Williams Brownback v. Keister 350, Browne v. Browne 99, Brownfield v. Wilson 161, Bruce v. Charlton Brummell v. Maepherson *Brummet v. Barber 108, Bryan v. Spires Buck V. Garber 164, Buck V. Lantz Buckingham v. Morrison ". 485, 486, 492, Bueklin v. Creighton 431, Buckworth v. Thirkell 465, 484, Bull V. Pritchard 99, BuUard v. Goffe Bullock V. Stones Burbach v. Burbaeh ,69, Burden v. Thayer Burges v. Thompson 421, Burke v. Burke 660, Burlet V. Burlet Burnett v. Lester 485, 486, 493, Bjira^y v. Arnold 350, Burris v. Page 359, *Burrows, In re, Cleghom v. Burrows *Burrough v. Philoox Burt V. French '. 237, See. See. 55 Burton V. Gagnon 168, 364, 398, 400, 482, 550, 654 .'.572, 721, 725 572 Bush V. Hamill. . .187, 1S9, 334, 398 425 Butcher v. Leach 513 Butler V. Huestis 225 195,. 359, 360, 405, 406, 414, 635 418, 421, 423, 424, 428, 441, 303 610, 648, 649 233 Butterfield v. Butterfield. . .199, 437 643 ~ Butterfield v. Sawyer 750 123, 307, 320, 571, 585, 586, 265 594, 595 219 Byam v. Byam 626 645 Byars v. Spencer 390 324 Byrnes v. Stilwell 330 354 *Cadell v. Palmer 116 336 Calef •>. Parsons. .463, 464, 465, 466 Xi77 Callard v. Oallard. .63, 307, 453, 464 500 Callison V. Morris 327 oyg Cameron, In re 734 . „„ Canal Trustees v. Haven 284 Caraher v. Lloyd 95, 320a Carberry v. McCarthy 637 *Carpenter v. Hubbard ^^^ 416, 428, 429, 440, 571, 572, 703 Carpenter v. Sangamon Trust 493 Co 163, 164, 165, 531 438 Carpenter v. Van Olinder ' 412, 414, 440, 441, 574, 727 520 Carper v. Crowl. 497, 503 336 Carrigan v. Drake 431 417 Carroll v. Ballance 217 208 Carroll v. Burns Igg 421, 423, 424, 425 43 Carson v. New Bellevue Ceme- 424 *ery Co^ 322 726 158 494 354 Carter v. Bloodgood's Exr's... 602 Garter v. Carter. .307, 308, 334, 353 Cartledge, Be 500 Caruthers v. McNeill 472 Carwardine v. Carwardine 97 Gary's Estate, In re 604 ^^^ Gary v. Slead 69, 190, 528 *Cashman, In re Estate of 326 -.168, 485, 492, 648, 649, 726 636 Casey v. Canavan 643 248 Cassem v. Kennedy. . .467, 481, 500 Ixi TABLiE OP CASES Sec. Cassem v. Prindle 384 Gassidy v. Mason 220 *Casterton v. Sutherland 636 Castner t. Walrod 388 Catlin Coal Co. V. Lloyd 64 Central Land Co. v. Laidley 384 *Chadock v. Cowley 544 Chadwick V. Parker . .23*6, 237, 243, 245, 246, 247, 248 *Chamberlain v. Hutchinson... 695 Chamberlain v. Maynes 69 Chambers v. Brailsford 208 Chambers v. Tulane 630 Chandler v. Eider 631 *Chandos v. Talbot , 497 Channel v. Merrifield 280 Chapin v. Crow 167, 329, 340, 358, 528, 533 Chapin v. Nott 303, 307, 309, 324, 358, 366, 367, 444, 482 Chapman v. Cawrey 264 Chapman v. Cheney ' 329, 350, 354, 485, 499, 522, 527, 563, 652, 678, 706, 707, 708, 732 Chapman v. Kirby '245, 247, 253 Chapman v. Pingree 222 Chapman v. Wright 245 Charter v. Charter. 128 Chase v. Ladd 648 Chase v. Peckham 554 Cheney v. Bonnell 245, 251 Cheney v. Teese 330, 528, 563, 565, 601 Cherry v. Greene l 643 Chicago & W. I. E. E. Co. v. Slee ■ 272, 273 *Child V. Baylie 109, 114, 115 Chiles V. Stephens 258 Christie v. Gosling 433 Christy v. Ogle 730, 740 Christy v. PuUiam 467, 610, 641, 648, 649, 730, 740 *Chudleigh's Case.. ....77, 97 *Claflin V. Claflin . .526, 568, 658, 678, 729, 732, 739 Clancy v. Clancy 135, 137, 138 Clark V. Clark 467, 610, 644 Clark V. Cox ; 324 Clark v.. MeCormiek 292 Clark V. Middlesworth 648 Clark v; Neves. . .421, 423, 424, 425 Clark V. Shawen 308, 500, 503, 528, 571, 572 Clarkson v. Hatton 584, 585, 595 Clay, etc., v. Clay 573 Clay V. Hart 630 Clemens, V. Heckseher 199, 437 *Clere 'a Case 641 Clerke v. Day. 421 Cleveland v. Havens 200 Clifford V. Clifford 641 Clifford v. Davis 493 Clinefelter v. Ayres 619, 630 1*Clobberie'8 Case 512 Close V. Burlington, etc., B. E. Co 220 Coat's Ex'r v. Louisville & Nashville E. E. Co 648 *Coates V. Burton 577, 582 Coafes Street 320a, 481 Cochran v. Cochran 585 Chess 's Appeal 324 I Cockins and Harper, Appeal of 438 Chicago V. Chicago' & W. I. E, E. Co. .280, 749 Chicago V. Middlebrooke. ... . . . 319 Chicago V. Eumsey 297, 298 Chicago Attachment Co. v. Davis Sewing Machine Co.. . . 243 Chicago, P. & St. L. E. Co. v. Vaughn 383, 384 Chicago Term. E. E. Co. v; Winslow .' 69 Cockshott V. Cockshott 205 •Coffin V. Cooper 612 Coffing V. Taylor 641 Cole V. Bentley 453 Cole V. Sewell 97, 602 Cole V. Wade 626 *Ooleman, In re 731 Coleman v. Coleman 403 Coleman v. Connolly 617 ) Collier v. Grimegey 499 Ixii TABLE OP CABHB See. CoUier v. Walters 192, 645 CollinB V. Brackett 220 Collins V. Capps 137, 138 Collins V. MacTavish 645 Collins V. Sanitary District..303, 309 Collins V. Smith 882 Colmore v. Tyndall 193 Commonwealth v. Nanerede . \ . . 585 Compton V. McMahan. 628 Comstock V. Brosseau. .265, 267, 268 Comstock V. Eedmond 657 Cone V. Woodward 247, 248 Congress Constr. Co. v. Farson Co 160 Congreve v. Palmer 579 Conklin v. Egerton's Admr. . 628, 631 Conkling t. City of Springfield. 463 Connelly v. O'Brien 357, 358 Conn. Trust & Safe Dep. Co. v. Hollister 678, 733 Conner v. Johnson 353 Connor v. Gardner 151, 160, 169, 562 Consolidated Coal Co. t. Sehaef er 252 Coogan v. Jones. .179, 180, 195, l'97 Cook V. Cook 474; 575, 577 Cook V. Councilman 421 Cook V. Gferrard. 206 Cook V. Hammond 381 Cook's Estate 599 Cooke V. Blake 187, 192, 645 Cooke 's Contract, In re 626 Cooper V. Cooper (7 Houst. (Del.) 488) 602 Cooper V. Cooper (76 111. 57) 177, 178, 197, 213, 405, 407, 418, 476, 726 Cooper V. Franklin 66 Cooper V. Gum 221 Coover 's Appeal 599 Corbet's Case . . . ., • .. 70 Corbett v. Laurens 575, 577 Corbett's Trust, Be 604 Corbin v. Healy 177, 409 Cordal's Case 187 Coster V. Lorillard 357 See. Cote 's Appeal 381 ♦Cotton V. Heath 109 Coulden, In re 196, 200 Coventry v. Coventry 566, 734 Cover V. James 162, 164, 211, 344, 462 Coverdale v. Curry. '. 268 Cowman v. Glos 202 Cox V. Cunningham 233, 251 Cox V. Preedley 292 Coyle V. Coyle 575 Crabtree v. Dwyer 414 Craft v. I. D. & W. Ry. Co 444 Craig V. Warner 99, 106,311, 314, 358 Crandall v. Sorg. 255, 277 Cranley v. Dixon.j 205 Craven, In re 173 Craven v. Brady 599 Craw V. Craw 168, 726 Crawford v. Clark 324 Crawford v. Forshaw 626 Crawford v. Weam 199, 437 Crerar v. Williams 697, 698 Cresswell, In re, Parken v. Cresswell . . . : 324 Cripps V. Wolcott 528 Crisfield v. Storr 322 Crocker v. Van Vlissingen. .164, 531 Croff V. Ballinger 261, 268 Croft V. Lumley 280 Crosby v. Davis 191, 192, 645 *Crowder v. Stone 605 Crozier v. Cundall 579 Crozier v. Hoyt 467, 610, 648, 649 Cruiksbank v. Home for the Friendless . 209 Crum V. Sawyer , 374 Crump V. Norwood 81, 314, 421, 424, 425 Cumby y. Cumby 221 *Cummings v. Hamilton • 311, 350, 354, 358, 398 Cummings v. Lohr 202, 398, 479, 481 Cummings v. Shaw 648 Cummings v. Stearns 324 Ixiii tabi;e of cases Sec. Ciimniiiis v. Drake 398 Cunliffe v. Brancker. , 99, 309 *Curtia v. Lukin 734, 736, 788 Curtiss V. Brown 647 Cusack V. The Gunning System 282 Gushing v. Blake 190, 431, 432 Da Costa v: Keir. 167 Dakin T. Savage 69 Dale T. Bartley 599 Dalrymple v. Leach 168, 471, 717, 720, 722 Danne v. Annas 627 Danahy t. Noonan 678, 732 Daniel v. Crusenbury 136, 138 Dart T. Dart. 320a Daughetee v. Ohio Oil Co 203 Davenport v. Coltman 206, 208 Davenport v. Davenport 433 Davenport v. Hanbury 575, 578 Davenport v. Kirkland 485, 643 •Davenport v. The Queen 280 liavenport v. Young 641 Davenport Bridge By. Co. v. Johnson 292, 298 Davidson v. Eimpton 160 Davie v. Stevens ' 196 Davis T. Christian 628 Davis V. Hutchinson 712 Davis V. Eipley 562, 564 Davis V. Sturgeon. 158, 412, 414, 415 Davies v. Moreton 282 *Davies' Trusts, In re 695 Dawson v. Edwards 385 Day V. Wallace 177 Deadman v. Yantis 308, 398 Dean v. Comstoek 263, 265 *Dean v. Dean 99, 688 Dean v. Northern Trust Co ... . 485 Dearlove v. Herrington 265, 268 Decker v. Decker 136, 138 De Costa v. Bischer 221 Dee V. Dee. .398, 493, 500, 503, 727 Deemer v. Kessinger 123, 412, 414, 440, 441 "Dees V. Cheuvronts 302, 386, 399 Def rees v. Brydon 160, 187, 301, 472, 485, 536 De Ladson v. Crawford 738 Sec. Delahay v. Clement 217 Delany v. Delany 626 Denegre v. Walker 643, 647 Dennett v. Dennett 106, 311 Denson v. Thompson 199, 437 Des Boeuf v. Des Boeuf 203 Despain v. Wagner 323 De Vaughn v. De Vaughn.... 421, 423, 424, 428 De Vaughn v. Hutchinson .■ 421, 423, 424, 428 De Vitto V. Harvey 202, 330 *Dewar v. Brooke 510 De Wolf V. Gardiner 320a *Dexter v. Inches 575, 581, 582, 583 Dick V. Harby 628, 630 Dick V. Bicker 66, 169, 180, 195, 198, 406, 414, 418, 476, 564 Dickenson v. HoUoway 380 Dickenson v. Petrie 237, 249 Dickinson v. GriggsviUe Nat'l Bank 168, 485, 486, 493, 726 Diekison v. Dickison 140 Dickson v. Dickson 324 Dickson V. New York Biscuit Co 643, 644, 648 Dillard v. Dillard 626 Dillon V. Paloon 648 Dime Savings Co. v. Watson. . 191, 500, 565, 652, 657, 702, 707, 708 Dimond v. Bostock 556 Dingman v. Boyle 617 Dinsmoor v. Bowse ■. 304 Dinwiddle v. Self 195, 303, 404 Dockrill v. Schenk. . . .227, 251, 280 Dodge v. Wright 245 Doe V. Biggs 182 Doe V. Brazier 206 Doe V. Cafe 192 *Doe V. Challis. .105, 335, 410, 686 Doe V. Considine 330 Doe V. Dill 597 Dbe V. Edlin 69, 190 *Doe V. Eyre 597 Doe V. Field 69, 190 Ixiv TABLE OP CASES Sec. *Doe V. Glover 719 Doe V. Gregory 384 Doe V. GwUlim 123 Doe V. Harvey. . .421, 423, 424, 425 Doe V. Hull 384 *Doe V. Jones 611 Doe V. Laming 81, 421, 423, 424, 425 *Doe V. Martin 332 Doe V. Nowell 335 Doe V. Passingham 67 *Doe V. Pearaon !...?.. 712 Doe V. Prigg 343 Doe V. Provoost 330 Doe V. Roach 97 Doe V. Scudamore 309, 337, 358 Doe V. Simpson 187, 192, 645 Doe T. Tomkinson 324 Doe V. Walhank 192, 645 Doe Vi Ward 335 Doe V. "Webb 600 Doe T. Wnian 192,645 Dohn's Exeeutor v. Dohn..^. .. 513 Dloney v. Clipson , 181, 195, 404, 406, 428 Donnelly v. Bastes 277 Donnersberger v. Prendergast . . 253 Donough V. Garland 374 *Doo V. Brabant 598 Doody V. Higgins 173 Dorsey v. Dodson 497,503 Dott v. Cunnington.. 199,437 Dott V. Willson 421, 423, 424 Doty V. Burdick >. 233, 251, 259, 261, 268 Doty V. Doty 139 Dttty V. Teller 407 Dougherty v. ^Dougherty . . .208, 209 Doughty V. StillweU 205, 208 Douglas V. Bolinger.'. 136, 138 Douglas V. Union Mutual Life Ins. Co 277 Downen v. Eayburn 220 Downing V. Grigsby 572 Doyley v. Attorney General .... 635 Drake v. Merkle 398 Drake v. Steele 67, 69, 184, 191, 308, 624 Sec. Drakeley's Estate, In re 208 Drew V. Killiek 206 Drew V. Mosbarger 237, 241 Drueeker v. McLaughlin. ..224, 226 Drummond's Ex'r 'v. Drum- mond 597 *Drury v. Drury .324, 352, 353, 524, 563 Dacker v. Burnham 168, 308, 321, 327, 328, 330, 345, 348, 349, 353, 467, 500, 503, 648, 669, 726 Duffield V. Duffield. .... .179j 197, 199, 462, 475, 476 Duffield V. Duffield 208 Dugan V. I^oUett , 397 *Duk« V. Dyches 108, 487 *Duke of Norfolk's Case. . .109, 115 Dull's Estate 438 Durable, In re, Williams v. Mur- reU ,. '. 208 *Dumpor's Case 279 Duncan v. Bluett 433 Duncan v. Martin . . , 199 Dunlap V. Taylor 389 Dunshee v. Dunshee 574 Dunwoodie v. Eeed 98, 106 Durand, In re 704 Duryea v. Duryea.528, 531, 597, 606 Dustin V. Cowdry 262, 272 Dwyer v. Cahill 160, 565, 656 Dyer v. Dyer 205, 206 Earll V. City of Chicago 292 Earnhari v. Earnhart 421 East Rome Town Co. v. Coth- ran 394 Eaton V. Smith. 626 *Eavestaff v. Austin 599 Ebey v. Adams 173, 183, 184, 497, 506, 520, 526, 555, 563, .'ies Eceles v. Birkett 510, 513 Eckford v. Knox 585 Eckhart v. Irons. 177, 178, 220, 222 Eddels ' Trusts, In re 208 , Eddowes v. Eddowes -474 Edmondson v. Dyson "431 Edwards v. Burt ,370 Ixv TABLE OF CASES Sec. Edwards v. Edwards 166, 532 •Edwards v. Hammond 333, 334 Edwards v. Variek a20a Edwards v. Woolf oik's Adm'r. 106 Edwick V, Hawes. 270, 276 Edyvean v. Archer 575, 577 •Egerton v. Massey ; . '....95, 306, 309, 311, 358 Eichengreen v. Appel ,272,, 273 Eldred v. Meek 499, 500, 510, 513, 520, 528, 654, 663, 707, 708, 709 Eldridge v. Trustees of Schools 220, Ellis V. El9,imigan 494, 650, 726 Elton V. Eaaon 199, 437 Elton T. Sheppard 160 Eley's Appeal 190 Ely V. Dix. .467, 610, 611, 619, 620 Elyton Land Co. v. South & North Alabama E, K. Co 226 Emerson, Etc. v. Marks 730, 740 Emmerson v. Merritt 183, 184, 187, 624 Emmert v. Hays 136, 1-38 Emory v. Keighan 229 Engelthaler v. Engelthaler.123, 151 Enos V. Buckley 388, 389 Equitable Trust Co. v.- Fisher. . 444 Erwin v. Eelter 215 Eshbach's Estate 187 Esker v. Heffeman 217 Espen V. Hinchliffe 249, 254 'Evans v. Evans 421, 423, 424, 425,428 Evans v. Scott 497 •Evans v. Walker 118 Evans v. Weatherhead 438 Eve, Ee 500 Ewiug V. Barnes 158, 168, 349, 414, 415, 436, . 441, 447, 461, 469, 471, 550 •Eyres V. Paulkland 109 Faber v. Police... 99, 106, 312, 358 Fabre v. Bryan 276 Fabrioe v. Von der Brelie 221 Fairman v. Beal 168, 202, 467, 610, 641, 648, 649 Faith V. Bowles 220 Sec. Faloon v. Simshauser 476, 561 Farnam v. Farnam 333 Farnam v. HohWn. . .238, 249, 252 Farrar v. McOue 630 Farwell v. Warren 265, 267 Faulkner v. Lowe 626 Faulkner v. Wynford 636 Felkel v. O 'Brien 137 133 Fellows V. Eipley 56 Fenton v. Hall 134 •Ferguson v. Dunbar 604 Fergussn v. Mason 453 Femeley's Trusts, In re 678 Ferre v. American Board 631 •Festing v. Allen 99, 309, 336 Field V. Brokaw 229 Field V. Peoples 329, 389, 391, 392, 540,' 546, 565 Field V. Providence 220 Fienhold v. Babeock 647 Fifer v. Allen 163, 164, 165, 399, 531^ '532,' 533 Fifleld V. Van Wyck 704 Fifty Associates v. Howland... 276- Finalson v. Tatlock 173 Finch V. Lane 340, 341 Finlon v. Clark 217 Fishback v. Joesting . 528, 531, 574 Fisher v. Deering 43, 241, 322, 379, 453 Fisher v. Milmine 217 Fisher v. Smith 241, 247 Fissel's Appeal 579 Fitoh V. MUler 232 Fitzgerald v.. Daly... 467, 470, 479 Fitzgerald v. Standish 628 FitzGerald's Settlement, Be. . . 734 Planner v. Fellows 191, 563, 643, 652, 656, 678, 732 Fleishman, In re 729 Plinn V. Davis 719 Flournoy v. Plournoy 173 Flower, Ee 578, 694, 695 Forbes v. Forbes 161, 164,415, 471, 725 Forbes v. Peacock 628 Ford V. Rawlins 515 Forlouf V. Bowlin 217 Ixvi TABIiE OF CASES Sec. Forrest v. Porch 572 Forsythe v. Forsythe 648 Forsythe v. Lansing 's Ex 'rs. . . 327 Fort Dearborn Lodge v. Klein. 261, 262, 265, 267, 268, 269, 271, 272 Forteseue v. _ Seatterthwaite . . . .320a *Forth V. Chapman '....' 544 Fortier v. Ballance 233, 245 Foster v. Grey 641 Foster v. Marshall 385, 387 Foster v. Eoberts.- 370 Fowler v. Black f .412, 414, 421, 423, 424, 425, 428, 440, 441, 465, 466 Fowler v. Samuel 599 Fox's, Edward, Case 62, 75, 379, 456 Fox 's Estate ^ 603 *Fox V. Fox 510, 513 Frail v. Carstairs.467, 534, 552, 598 Frame v. Humphreys 359, 409 Franke v. Berkuer 394 Franklin v. Hastings 698 Franklin Savings Bank v. Tay- lor 644 Frazer v. Board of Supervisors ...194, 303, 318, 402, 404 Frazier v. Oaruthers. .272, 276, 280 Frazier v. Miller '. ... 221 Freeland v. Pearson 637 Freeman v. Freeman 307 Freeman v. Parsley 575, 578 Freeman 's Estate 592 Freme, In re 99 French v. Calkins 701 French v. Wilier 276 Friedman y, Friedman'. 95, 309, 310 Friedman v. Steiner 158, 168, 467, 482, 483, 542, 725 I'riend's Settlement, In re 607 Frith, Re, Hindson v. Wood. . . 572 Frogmorton v. Wharrey 309 Frost,. In re. • 662 'Fuller V. Chamier...417, 421, 428' Fulwiler v.; MeOlun . . . 467, 470, 534 Funk . V. Eggleston .... 168, 467, 610, 641, 648 Furness v. Fox 501 Furnish v. Rogers 162, 165; 307, 320, '349, 378, 469 Fusselman v. Worthington . 233, 245 Fyffe v. Fyffe... 139 Gaffield v. Plumber ■ .....162, 202, 467, 610, 648, 722 Gage V. Hampton 319 Gaines v. 'Fender 626 Galbraith v. McLain. 374 Gallaher v. Herbert .. 221, 278, 727 Galland v. Leonard 167 Gambell v. Trippe 626 Gammon v. Gammon 643 Gano v. Gano. 137, 138 Gardiner v. Savage 575, 582 Garland v. Smyth 602 Garrison v. Hill 380 Garrison v. Little 697 Garth v. Baldwin 437 *Gatenby v. Morgan 597 Gauch V. St. Louis Mutual Life Ins. Co 573 Gaunt V. Stevens, 211, 212 Gannon v. Peterson 301, 399, 465, 467, 494, 545, 574, 575 Gavvin v. Carroll 161, 319, 323, 467, 470, 480 533 Gavin v. Curtin '. 6-l.'i, 647 ' Gawler v. Standerwick '(97 Gazzard v. Jobbins 713 Gebhardt v. Beeves 284, 287, 290, 292, 293, 295, 299 Geist v. Huffendick 202, 421, 428, 430 Genery v. Fitzgerald. 208, 209 Gerrish v. Hinman 579 Gibson ,v. Montford ,208, 209 Gibson v. Eees 229 Gilbert v. Holmes 227 Giles V. Little 648 Giles V. Anslow 164, 472 Giles V. Austin 282 Gilman v. Bell 467, 472, 610, 638, 639 Gilman v. Hamilton 697 Gittings V. M'Dermott 173 Ixvii TABLE OF CASES Glaubensklee v. Low Glanvill v. Glanvill *Glover v. Condell 151, 307, 349, 413, 429, 435, 436, 444, 445j 446, 447, 461, 470, 472, 481, 482, 485, 489, 542, Glover v. Stillson 627, Goddard v. Brown ' GofE V. P«nsenhaf er 467, 481, 610, 641, Gokonda Ey. v. Gulf Lines R. R 240, 244, Golder v. Bressler *Golladay v. Knock 158, 173, 309, 320, 323, 324, -349, 358, 363, 364, 365, 366, 367, 374, Gooah V. Gooeh Goodrich v. Goodrich 398, 609, 637, *Gore V. Gore Goxhara v. Daniels 458, Gorman v. Mullins Gosling V. Gosling Gosselin v. City of Chicago. . . Gott V. Nairne Gould V. Howe Gould V. Mather 630, *Goulder, In re Gowland v. De Faria Gowling V. Thompson 575, Gradle v. Warner 280, Graff V. Rankin 320, 375, 394, 395, Graves v. Colwell , Graves v. Rose 135, *Gray v. Blanchard 222, Gray v. Chicago, M. & St. P. By 216, 219, 240, 244, 662, 749, Gray v. ' Lynch Gieaves v. Simpson Gregg V. Tesson 385, 387, Gregson's Trust Estate, In re 343, Green v. Bridges Sec. 453 208 544 648 645 750 277 626 382 474 639 85 464 647 734 292 738 292 632 713 370 579 282 397 139 137 223 752 626 421 392 528 282 See. Green v. Ekins 208 Green v. Grant 160, 183, 187, 189, 191 Green v. Hewitt 202, 307, 308, 324, 486, 492 Green v. Old People 'b Home . . 216, 219, 240 Green v. Spicer 731 Greene v. Flood 205 Greene v. O'Connor. 220, 224 Greenoiigh v. Greenough 412 Greenway v. Greenway 173 Grey v. Pearson 123 Greyston v. Clark 723 Griffin v. Griffin 168, 467, 610, 640, 641, 648, 649, 726 Griffith V. Plummer 187 Griffiths V. Griffiths. . .162, 168, 726 Grimmer v. Friederieh.3a4, 503, 528 Grimshaw's Trusts, In re 513 Griswold v. Hick8.179, 197, 414, 418 Gronimes v. St. Paul Trust Co. 254 Gross V. Sheeler 436 Gruenewald v. Neu 168 Guthrie v. Walrond 208 Guerin v. Giierin.160, 203, 659, 732 Gulliver v. Taux 716, 723 Gutman v. Buckler 626 Gwynne v. Heaton 370 Hadley v. Hadley 626 Hadwen v. Hadwen 433- Hageman v. Hageman ....158, 412, 414, 440, 441, 727 Hagger v. Payne 566 Haig V. Swiney '. 160 Haight V. Royee 158 Hale V. Hale a25 111. 399) 207, 472, 643, 656, 699 Hale V. Hale (146 111. 227) 184, 190, mS, 647 Hale V. Marsh 648 Hall V. Hall 575, 577, 579 Hall V. Hankey. 418 Hall V. Irwin 621 Hall V. La France Fire Engine Co 309, 357 Hall V. Nute 331 Ixvfii TABLE OF CASES Hall V. Preble Hall V. Terry.... Hamel v. Minneapolis, St. P. & S. 8. M. By Hamilton v. Chicago, B. & Q. R. B. Co 287, Hamilton v. Hamilton 467, 610, 643, Hamlin v. U. S. Express Co. . . . 162, 168, 182, 648, 720, Hammond v. Doty 261, Hammond v. Port Royal & Au- gusta Ry. Co... 222, 223, 225, Hampton v. Bather 199, Hampson v. Brandwood Hancock, In re 410, Handberry v. Doolittle.564, 565, Handy v. McKim.lS?, 192, 193, Hanes t. Central Illinois TTtili- ties Co 414, 416, Hanna v. Hawes 309, *Hanson v. Graham Harbin v. Masterman 733, Hiardin t. Forsythe ..... 233, Harding v. Butts *Harding v. Glyn Harding v. Sandy. *Harman v. Dickenson Harms v. Kransz Harris v. Cornell Harris v. Davis. Harris v. Du Pasquier ; Harris v. Ferguy 182, Harris t. Lloyd Harris v. Shaw .220, ''Harrison y. Foreman *Harrison v. Harrison Harrison v. Weatherby. . . .303, Harshbarger v. Carroll.463, 464, Hart V. Lake 219, 244, Hart V. Seymour.. 69, 652, 656, *Hart's Trusts, In re 497, Hartwell v. TefEt 585, 588, 589, 594, Harvard College v. Balch 325, 332, 503, Han-ey v. Ballard 183, 187, Haskins v. Haskins 265, Sec. Sec. 648 Hathaway v. Cook. , . 463 500 Haughton v. Harrison. 208 Havens v. Healy . . . . . 568, 736, 740 219 Haward v. Peavey 321, 327, 328, 339, 345, 358, 292 528, 643 Hawes v. Favor 227, 281 644 Hawkins v. Bohling 324, 467, 497, 503, 610, 669 726 Hawkins v. Kemp. ..'. 627 268 Hawley v. Kafltz 220 Hawthorn v. Ulrich 614, 640 244 Hay v. Bennett. .' 215 437 Hayes v. Lawver. , 237, 379 324 Hayes v. Tabor 331 686 Hayle v. Burrodale 486 569 Hays v. St. Paul Church 222 645 *Hayward v. Spaulding. . .104, 106 Headen v. Rosher 370 440 Healey v. Toppan 486 433 Healy v. Eastlake 512 162, 165, 168, 329, 545, 551, 726 734 Heard v.^ Read 573 251 Heardson v. Williamson 187 389 Hedges v. Biker 645 635 Heelis v. Blain 53, 67 272 Heims Brg. Co. v. Flannery . ... 254 602 Heininger v. Meissmer 398 319 Heisen v. Ellis.. 671, 702 69 Heller v. Heller Ui 173 Helm v. Webster 205 ' ....240, 284, 287, 290, 293, 295 467 Hemphill's Estate. .. .187, 192, 645 208 Hempstead v. Dickson 222 304, 482, 499, 528 597 Hempstead v. Hempstead. .197, 198 603 Henderson v. Blackburn 467 168, 610, 640, 648, 717, 726 466 Henderson v. Carbondale Coal 277 Co 245, 252 659 Henderson v. Constable 205 512 Henderson v. Harness . . : 123, 596, 712, 714, 716, 727, 731 595 Henderson V. Hatterman . . . 287, 292 Henderson v. Hill 309, 358 641 Henderson v. Mack 181 413 Henderson v. Viiden Coal Co. . . 656 267 Henkins v. Henkins. .330, 571, 572 Ixix TABLE OF CASES Hennessy v. Patterson .... 324, Henson v. Wright 69, Herbert v. Webster Herrell v. Sizeland Heslop V. Gatton. : Hess v'. Lakin ' Hetfield v. Fowler 485, Heuser v. Harris 697, Hewitt V. Green. Hicks V. Pegues *Hide V. Parrat Higgins V. Crosby.384, 385, 387, Higgins V. Dawson Higgins V. Wasgatt Hill V. Barclay *Hill V. Chapman HiU V. Dade Hill V. Gianelli 162, 571, 572, 652, *Hill V. Hill 308, 320, 349, 353, 375, 378, '. 395, Hill V. Eeno Hillhouse v. CSiester Hills. V. Barnard 575, 581, Hilton V. Hilton Hincksman v. Sinith Hind V. Poole Hinriehsen v. Hinrichsen ....327, 348, 349, 353, 467, Hinze v. People. *Hoare v. Parker 107, *Hoath V. Hoath Hobbie v. Ogden 176, 305, 489, 500, Hobgen v. Neale 575, Hodge V. Foot Hodgson V. Becktive 208, Holland v. AUsop . , Holland v. Wood 353, Holliday v. Dixon *Holloway v. HoUoway Holmes v. Coghill *Holmes v. Godson Holmes v. Prescott 99, Holt V. Bees Holton V. White Hooper v. Cummings , . . .. Sec. Sec. 357 Hoots V. Graham 263,272 190 *Hopkins v. Hopkins 208 678 Hopkinson v. Swaim 233- 642, 649, 659, 690, 691, 729, 123 ...; 739, 747 417 Hoppock V. Tucker 556 494 Home v. Lyeth 438 698 Horner v. C. M. & St. P. By. 708 Co 220 381 *Horner v. Swann 611 107 Horner's Estate, In re 603 389 Horseman v. Abbey 173 133 Horsley v. Hilburn 359, 405, 409 181 *HoueU V. Barnes '. 628 282 House v. Jackson 357, 358 566 Houston & T. C. B. Co. V. Ennis- 184 Calvert Co 219 Howe V. Hodge 676 329, 499, 500, 510, 563, 566, 568, 652, 656, 663, 677, 678, 684, 706, 707, 708, 732 477 *Howe v. Morse 658 398 Howland v. White 245, 249, 379 381 Howston v. Ives 200 582 Hoyt v. Ketcham. 219 734 Hubbell Trust, In re 192, 645 370 Hubner v. Feige 259 626 Huckabee v. Newton 69, 190 Hudleston v. Gouldsbnry 205 545 Hudnall v. Ham 374 253 Huffman v. Young 137, 138 287 Huftalin v. Misner 258 512 *Hughes v. Ellis... 598 Hughes V. Nicklas 199, 437 574 *Hughes v. Sayer 544 578 Hughes v. Washington.467, 610, 644 603 Hull V. Ensinger 209 186, 202, 321, 343, 472, 528 602 Hull V. Hull 308, 574 523 Humiston, Keeling & Co. v. 158 Wheeler 254 572 Humphrey v. Foster 180 638 Humphrey v. Humphrey 160 718 Humphreys v. Humphreys 205 336 Hunt v. Fowler 697 217 Hunt V. Hawes 182, 714 205 Hunter v. Middleton 284 222 Hunter's Trusts, In re 515 tabi;e op cases \ \ Sec. Hurry v. Morgan 602 Hurst V. Hurst 597 Hurt V. McCartney 162 Hutcheson v. Hodnetf 184, 192, 645, 646 Hutchins v. Hey wood 56 Hutton V. Simpson 206 Hyde Park, Village of, v. Bor- ■ den 284, 295 Tde V. Ide ' 719 Iglehart v. Iglehart • 660 ' 111. Cen. Ins. Co. v. Wolf 456 I. C. E. E. Co. V. Wathen 227 Illinois Land Co. v. Bonner. . . . 467, 499, 519a Illinois Mission Soe. v. Ameri- can Mission Soc 643 Illinois & St. L. E. E. Co. v. Cobb 264, 265, 267 Indianapolis) etc. E. E. Co. v. . Hood '. 220 Ingraham v. Ingraham 499, 564, 567, 655, 656, 677, ..-..684, 697, 698, 699, 700, 731 Ingraham v. Mariner 727 Irish V. Antioch College 444 Irvine v. Newlin 106, 309 Irwin V. Powell 64 Isaacson v. Van Goor 205 Jacob's Will, Ee 374 Jacobs V. Ditz 222, 355, 442, 467, 470, 479, 483 Jacobs V. Jacobs 173 Jacobs V. Eice 385, 387, 392 Jackson, In re 556 Jackson v. Bull 719 Jackson v. Hendricks 380 Jackson v. Hilton 380 Jackson v. Jackson. . .575, 581, 582 Jackson v. Mancius 384 Jackson v. Marjoribanks 737 *Jackson v. Noble 597 * Jackson v. Eobins 720, 723 Jackson v. Schoonmaker 385 ' Jackson v. Sparks 606 Jackson d. Gouch v. Wood. .64, 456 James v. Shannon 205 Sec. Jarvis v. Wyatt 309' Jeffers v. LampSon 320a, 327 Jenkins v. Bonsai 380 Jenkins v. Jenkins 591,595 Jenkins v. Pye 370 Jenks V. Jackson 182, 640, 644 Jenne v. Jenne. ..... .163, 530, 712 Jennings v. Jennings ,750 * Jesson V. Wright 81, 421, 423, 424, 425 Jodrell, Ee .'.'.'. 129 Johannes V. Kielgast 249, 254 Johns V. Johns 647 Johnson v. Askey 162, 165; 545, 551, 572 Johnson v. . Buck 415, 462, 467, 471, 472, 542, 647, 732 Johnson v. Jacob 309 Johnson v. Johnson 159, 162, 165, 469, 545 Johnson v. Johnson 648 Johnson v. Norway 6 Johnson v. Preston 173, 652, 653, 656, 657, 673, 1 706, 708 Johnson's Appeal 585, 586, 595 Johnson's Trustee v. Johnson.. 678,737 Johnston 's Estate 708 Joliet Gas Light Co. v. Suther- land 240, 243 Jones V. Bramblet 749 Jones V. King 177, 178 Jones V. Miller.. .329, 501, 515, 528 Jones T. Morgan 429 Jones V. Neely 221 Jones V. Port Huron . Engine Co 727, 731 Jones V. Eees 436 Jones V. Eicketts. '370 * Jones V. Westcomb 598 * Jones V. Winwood 611 Jones' Estate, In re 575, 578 * Jordah v. Adams 441 Jordan v. Jordan 123 Josselyn v. Josselyn 734 Jul! V. Jacobs 336, 599 Ixxi TABIiiE OF CAlSES Kaiies v. Ewert Kamerer v. Kamerer 303, 304, 306, 309, Kaufman v, Breckinridge 168, 202, 467, 610, 640, 648, 649, Kavanagh v. Gudge Kean 'g Lessee v. Boe Kearaley v. Woodcock Keep 'b Will, In re KeUett V. Shepard 30, 311, 363, 482, 538, 545, 551, 571, Kelley v. Meins Kdley v. Vigas 571, 572, Kelly V. Gonoe .499, Kelly V. Stinson , Kelso, In re Estate 359, Kemmerer v. Kemmerer Kendall v. Gleason •Kendall v. Taylor Kennard v. Kennard Kennedy v. Kennedy •Kennedy v. Kingston Kenwood Trust & Sav. Bank v. Palmer 370, Kepler v. Castle Kepler v. Larson 20, 421, 423, 424, Kepler v. Beeves Kershaw v. Kershaw *Kevern v. Williams 568, *Kew V. Trainor 251, 279, Keys 's Estate, In re -Keys V. Wohlgemuth Kiallmark v. Kiallmark Kibbie v. Williams. . .385, 387, Kilgore v. Kilgore Kilgour V. Gockley Kilpatriek v. Mayor Kindig's Exr's v. Smith's Adm'r King V. Edwards King y. Frost King V. Hamlet King V. King , ....162, 165, 531, 540, 546, King V. King 69, 190, Sec. Sec. 552 King v. Lee 220, 302 King V. Norfolk & Western. By.' 310 Co 220 King V. Savage 575 King V. St. Louis Gas Light 726 Co 258 276 King v. Withers 497 381 King's Heirs v. King's Admr. 713 199, 437 . 602 Kingman, In re Estate of . » . . . . 401 Kingman v. Harmon 307, 334, 442, 467, 481, 501, 572 513, 515 719 Kirby v. Brownlee 431 574 Kirkland v. Cox 503 69, 189, 191, 697 205 Kirkpatriek v. Kirkpatriok.. . . 405 168, 324, 332, 467, 571, 572, 184 610, 648, 649, 726 573 Kittredge v. Locks & Canals. . 387 546 Kleinhans v. Kleinhans 331 162, 163, 165, 167, 310, 330, 648 347, 533 637 Kline v. Marsh 506 Knight V. Knight 259 376 Knight v. Pottgieser 475 196, 301, 308, 324, 330, 500, 503,528 425 Knox v. Barker 438 417 Koch V. Streuter 226 374 Koeffler v. Koeffler 679 168, 301, 467, 542, 725 280 Kohtz V. Eldred.530, 531, 678, 737 438 Kolb V. Landes 526 184, 442, 467, 470, 530, 535, 713 652, 656, 657, 701 392 Kolmer v. Miles 579 ....177, 178, 196,, 406, 411, 548 217 Kountzleman 's Estate 187 220 Kountz's Estate 500, 513, 527 Kransz v. Uedelhofen 217 170 Kratz v. Kratz 177, 202 227 Krevet v. Meyer 258 604 Kron v. Kron 370 158, 168, 307, 445, 446, 447, 461, 720 647 Kruse v. Scripps 217 731 Kurtz V. Graybill 467, 610, 644 TABLiE OP CASES See. Kurtz V. Hibner. .123, 127, 135, 137 Kuuku V. Kawainui 458, 464 Kyner v. Boll 195, 196, 326, 359, 406, 408, 409, 477, 565 Laohemnyer v. Gehlbaoh 161, 167, 307, 327, 328, 345, 347, 353, 530, 533 Laehlan v. Reynolds 173,208 Lake v. Brown 444 Lakey v. Scott 381 Lambe v. Drayton 158, 168, 178, 182, 471, 717, 720, 726 Lambert v. Harvey 184, 208, 467, 610 *Lambert v. Thwaites 636 Lampet 's Case 320a, 485 Lancaster V. Lancaster. ....... 418, 553, 556, 564, 565 *Lane V. Debenham 626 Langlois v. Lesperance 178 Lapsley v. Lapsley 605 *Larges ' Case 713 Lash V. Lash 151, 497, 644 Latham v. I. C. E. K. Co : . ..., 216, 219, 242 Latimer v. Latimer 453, 463, 464, 466 Laurence v. La-wrence (181 111. 248) 69, 190, 431 Lawrence ,v. Lawrence (255 111. 365) 136, 138 Lawrence v. Lawrence (4 W. Australian L. B. 27) 674 Lawrence v. Phillips. .'... .603, 604 Lawrence v. Pitt 380 Lawrence v. Smith 652, 653, 659, 663, 677, 684, 685, 707, 708, 709 Lawrence 's Estate 694 Lawton V. Corlies 573 Lazarus v. Lazarus 734 *Leake v. Bobinson 677, 684 Leary v. Kerber 69, 190 Leary v. Pattison. . . .237, 247, 248 •Lechmere & Lloyd, In re 99, 102, 103, lt)4, 105, 688 " See. Lee V. Lee 552 *Lee V. Stone 604 Lee V. Town of Mound Station 265, 292 *Leeming v. Sherratt . 496, 503, 515 Lehnard v. Specht 332 Leiter v. Sheppard. . .160, 161^ 169 Lehndorf v. Cope 158, 195, 359, 406, 409, 412, 415, 418, 565 Lemacks v. Glover 309, 421, 423, 424 Leman v. Sherman 444, 613 Lemp Brg. Co. v. Lonergan . . . 249 Leonard v. Haworth 660 Leonard v. Sussex 430 Leslie v. Moser 493, 494 Letchworth v. Vaughan 220 Lewin v. Bell . 196, 309, 310, .314, 318, 404, 406 Lewis V. Barnhart 397 Lewis V. narrower 303 Lewis V. Palmer 648 Lewis., V. Pleasants 303, 397 Lewis V. BeSs 193 L'Herminier, In re, Mounsey v. Buston 160 Lichter v. Thiers 593, 594 Life Ass'n v. Fassett 302, 381 Lightcap V. Bradley 2^0,231 Lill V. Lill 206 Lilley v. Fifty Associates 282 Linn v. Ddwning 731 Little V. Bowman 69, 162, 727 Little V. Giles 648 Little V. Wilcox 187 Little Bock Granite Co. v. Shall 282 Livingston v. Greene 330 *Lloyd V. Carow 116 Lloyd V. Lloyd 515 Ijocke V. Lamb 514 Lockhart v. Lockhart 579 Lockridge v. Mace 708 *Loddington v. Kime..91^ 309, 358 Lomax v. Lomax 135,137 Lomax v. Shinn 203, 467, 610 Ixxiii TABLE OF CASES Sec. Lombard v. Witbeck 301, 528, 600, 604, 608 •London & S. W. By, Co. v. Gomm 664, 665 Long V. Moore 220 Longshore v. Longshore 374 Longwith v. Butler 610 Longwith v. Eiggs...64a, 644, 647 *Lord V. Bunn - 731,739 Lord V. Comstock . .'. 189, 191, 412, 429, 431, 436, 439, 739 Loring v. Arnbld 324 Lorings v. Marsh 626 Los Angeles University "v. Swarth 222 Lovat V. Lord Eanelagh 282 Loveless v. Thomas 181 Levies 's Case 332 Low V. Elwell 262 Low,v. Graff 564 Low V. Smith 430 Lowe V. Land . . .' i . 602 *Lucena v. Lucena 606, 607 Lunt v. Lunt ■ 334, 350, 354, 500, 519, 520, 522, 527, 528, 545, 568, 656, '. 678, 732 Lutwich V. Milton 61, 65 Lux V. Hoff 213 *Luxford V. Cheeke 330 Lyle V. Richards 98, 106, 312 Lyman v. Suburban E. E. Co. 277, 662, 752 {jynch V. Swayne...67, 69, 158, 190 Lynde v. Estabrook 648 Lynn v. Worthington '330 Lyon V. Acker 579 McCaffrey 's Estate, In re ... . 187, 192, 645, 646 McCagg V. Heacock 389 MeCall V. Lee 108, 485 MeCampbell v. Mason 307, 309, 347, 359, 400, 418, 428, 445, 446, 448 McCartney- v. Hunt 233, 245 McCartney v. Osburn 405, 472, 496, 497, 499, 500, 510,' 515, 516, 518, 523, 528, 553, 563, 564, 565, 569, 571, 574, 579 McCarty v. McCarty . . 309, 310, 319 McClintock v. Meehan 162, 164, 467, 470 MeClure 's Appeal 503 MoComb V. Morf ord 503 McConi^ell v. Pierce 280 McConnel v. Smith 160 McConnell v. Stewart. .324, 330, 467 McCoy v. Fahrney 574 McCoy v. Poor 394 McCreary v. CoggeshalL . . . 95, 311 McCuUough 's Adm 'r v. Ander- son 648 McCutcheon v. Pullman T. & S. Bank 652, 671, 702 McDavid v. Bohn 200 M 'Donald, Ex'rs of, v. M 'Mul- len , 324 MeDuffee v. Sinnott 319 McElwee v. Wheeler 99, 106, 312, 358 McPall V. Kirkpatrick 69, 190, 384, 395, 412, 416, 429, 609, 611 McParland v. McFarland . .467, 596 McGinnis v. Campbell 574 McGinnis v. Eernandes 233, 251 MoGunnigle v. MeKee.585, 586, 595 Mclntyre v. Mclntyre.421, 423, 424 McKindsey v. Armstrong. .728, 731 McMillan v. Deering & Co 648 McNab V. Young 69 McNair v. Montague 191, 526 McNear v. McComber 181 Maehen v. Machen...^ 199,437 Maekey v. Kerwin, 220 *Macleay, In re 712 Mactier v. Osborn 282 Macy V. Sawyer , 205 Madden v. Madden 631 Maddock v. Legg 575, 577 Maden v. Taylor 600,604 Ixxiv TABLiB OP CASES Madison v. Larmon 106, 303, 309, 327, 329, 358, 528, 565, 652, 654, 655, 656, 662, Maginn v. McDevitt Magrath ,v. Morehead Maher v. Maher Mandeville 's Case 39, *Mandlebaum v. McDonell. . . . Mann v. Martin.. 168, 648, 722, Mannerback, Estate of •Manning's Case 108, 114, Mansfield v. Mansfield Mara v. Browne Mariner v. Saunders Markillee v. Bagland ....168, 467, 610, 640, 648, Marks v. Gartside *Marlborough v. Lord Godol- phin '. Marriott v. Turner Marsh c. Eeed 643, 647, Marsh v. Wheeler Marshall v. Grosse Clothing Co. Martin, In re Martin v. Aetna Life Ins. Co.. Martin v. Martin 151, Marvin v. Ledwith '. . . 308, Mason v. Bloomington Library Ass'n 660, 661, Mason v. Pate's Ex'r 199, Massey 's Appeal Mather v. Mather 202, 329, Matthiesson & H. Zinc Co. v. La Salle.. .284, 285, 297, 298, Maulding v. Scott.- May V. Boston 222, Maybank v. Brooks Mayer v. McCraeken 161, 164, 467, 470, Meacham v. Bunting 383, Meaoham v. Steele Mead v. Ballard Mead v. lilitchell 357, Mead v. Pollock 272, Meath y. Watson Medinah Temple Co. v. Gurrey I 227, Sec. Sec. Meldahl v. Wallace 308, 332, 343, 347, 500, 718, 720 *Mellichanip v. Mellichamp. .74, 476 704 Melson v. Cooper 719 325 Melvin v. Looks & Canals 387 734 Mengel's Appeal 438 568 Mercer v. Safe Dep. Co 187 405 Meredith v. Joans '. 66 713 Merkel's Appeal 108 726 Merrill v. Trimmer 282 187 Mervin, In re 513 485 Messer v. Baldwin 648 99, 106, 309, 310, 572 394 Mette V, Feltgen. .210, 211, 212, 215 213 Mettler y. Miller 384, 387, 388, 389 649 Mettler v. Warner. 276 499, 509, 528, 652, 656, 657, 659, 673 637 Metzen v. Schopp 208 196, 406, 410, 545, 548, 648, 654 720, 726 504 Michael's Trusts, In re 678 254 *Middieton V. Messenger.. 523 513 Mildmay 's Case : 18, 73 584 Miles v. Jarvia 102, 104 160 Miller v. Emans 320a 599 Miller v. Ewing. 384 Miller v. Gilbert 173 704 Miller v. Lanning 398 437 *Miller v. McAlister 209 74, 445, 461, 476 565 Miller v. Mowers. . 181, 182, 415, 437 Miller v.. Pence. 388, 395 299 Miller v. Riddle 302 438 Miller v. Travers 123 224 Miller's Appeal 595 ,133 Mills V. Newberry 598, 697, 717, 720, 722 471 Mills V. Seattle, etc., By. Co 222 384 Mills V. Seward.. .421, 423, 424, 425 69 Mills V. Teel 149 222 Milsom v. Awdry 603 358 Minard v. Delaware L. & W. B. 273 Co. 219, 222 280 Minchell v. Lee 583 Mining v. BatdorfE 330 251 Minot v. Paine 694 .IXXY TABLE OP CASES Minot V. Tappan 324, Mires v. Laubenheimer Missionary Society v. Mead. . . . Mittel V. Karl 211, 213, 309, 358, Mixter v. Woodooek *Mogg V. Mogg..l01, 104, 474, Molineaux y. Baynolds Moll V. Gardner 67, 69, 183, 187, 190, Monast v. Letourneau Monteflore v. Browne Montgomery v. Montgomery. . . . Monypenny v. Bering Moody V. Tedder *'Moore, In re Moore v. Ffolliot Moore v. Heraneourt *MooTe V. Littel 357, 358, Moore v. Luce 385, Moore v. Bake *Moore v. Reddel 308, 309, 359, 404, 406, 408, 409, 420, 428, 477, Moores v. Hare Moran's Will, In re 357, Morgan v. Grand Prairie Semi- nary 697, "■Morgan v. Gronow 690, Morgan v. Morgan 668, Moroney v. Haas 324, 513, 515, 528, 657, 685, 706, 708, Morrill V. Morrall 136, Morris, In re Morris v. Caudle 445, 461, Morris v. Phillips 414, 467, 470, 483, 533, 545, Morrison v. Kelly 444, 610, Morrison v. Bossignol Morrison v. Schorr Morrison v. Sessions Estate Morse v. Cross , Morton V. Babb.301, 415, 462, Moses V. Loomia Moss V. Chappell Moss V. Sheldon Sec. See. 572 *Mott V. Danville Seminary... 374 244, 277, 30.0, 302, 381, 662 139 Mowtem, In re 208 Moyston v. Bacon 648 528 Mudge v. Hammill 309 384 Mueller v. Kuhn 476 254, 268, 272, 273, 275, 27^ 209 Muhlke v. Tiedemann (177 111. 606), 161, 440, 727 728 Muhlke v. Tiedemann (280 111. 187 534) 546 627 Mulberry v. Mulberry 202 421 Mxildrow's Heirs v. Pox's Heirs 628 710 MuTfitt V. Jessop. ... ..158, 182, 196 648 Mmkin v. Phillipson 497 750 Murphy's ' Estate 626 637 Murray v. Emery 232 503 Mussett v. Single. .'. 660 361 Mustain v. Gardner 211 392 Myar v. Snow 409 381 Myers v. Warren County Li- brary 4s8 'n 596 Neale v. Neale 133 565 Neilson v. Monro 173 327 Nelson v. Davidson 389, 390 358 Nesbitt v. Berridge 370 Nevitt V. Woodburn 698 652, 663, 706, 707, 708 694 Nevius v. Gourley 222, 481, 676 669 Newburgh v. Newburgh 123 Newcomb v. Masters 69, 244, 712, 714, 747 709 Newhall v. Wheeler 153, 193 138 Newland v. Marsh 389 513 Newman v. Willetts 202 47g Newton v. Harland 262, 266, 272, 276 546 613 . . 665 . . 203 . . 584 . . 648 New York Life Ins. Co. v. Viele 592 Nice 's Estate 575 Nichols V. Gould 370 Nichols V. Guthrie 309, 358 Nicoll V. Seott 308, 324, 499, 517, 528, 621 471 Nightingale v. Phillips 431 280 Nimmo v. Davis 370 219 Nixon v. Nixon 184, .187 181 Noble V. Fiekes 463 Ixxvi TABLE OP CASES See. Nodine v. Greenfield 338 Noel V. People 253 Nor*^!! V. &rabam 302, 323, 381, 382 Northern Trust Co. v. Wheaton 307, 327, 328, 338, 345, 350, 354, 534, 599 Nott V. Johnson 370 Nowak V. Dombrowski 219, 220, 226 No-^vakowski v. Sobeziak 463 Nowlan V. Nowlan 183, 187, 191, 412, 429 Oard V. Oard 221 O 'Brien v. Battle 626 Oddie V. Brown .' 669 O'Donnell v. Eobson 220, 240 *0 'Hare v. Johnston 150, 152, 500, 509, 510, 513, 516, 524, 525, 527, 546, 547, 551, 657, 659, 661, 746 Ohio Oil Co. V. Daughetee 586, 399, 645 Oleott V. Tope 151, 170, 184, 189, 191 Oldham v. Pfleger 217 Oliver v. Powell 381, 382 Oliver 's Settlement, In re ... . 704 Olney v. Lovering 573 •^O'Mahoney v. Burdett 166, 167, 532, 597 O 'Melia v. MuUarky . . .69, 307, 308, 320, 324, 330, 37S O'Neil V. Caples 220, 221, 227 Opening of One Hundred and Tenth St., In re. 189, 192 "Oppenheim v. Henry 568, 679, 680, 732 Orme 'S Case 53, 67, 723 Orr V. Yates 158, 168, 301, 368, 467, 483, , 717, 720, 725 Orthwein v. Thomas 384 Ori;mayer v. Elcock 173, 320a, 324, 596, 706 Orton's TrJist, In re 580, 581 Osgood V. Eaton 56 O^ood V. Frankin 628 Sec. Ostatag -v!. Taylor 272, 275 Owsley V. Harrison 652, 653, 663, 707, 709 Owston V. .WUliama 178 Page V. DePiiy 265, 270, 276 Page V. Dwight 259 Page V. Gilbert 556 Page V. Soper 611 Pahbnan v. Smith. 467, 610, 619, 644 Paine v. Barnes 648 *Palmer v. Cook 164, 307, 445, 446, 448, 461, 465, 466, 471, 544 Palmer v. Pord 282 *Palmer v. Locke 612 Palmer's Trusts, In re 602 PapiUon v. Voice 430, 433 Papst V. Hamilton 222, 224 *Parkef, In re 513 Parker v. Bolton 433 Parker v. Ross , 331, 337 Parker v. Sears t ....... . 626 Parker v. Sowerby 503, 515 *Parkin, In re 612 Parkin v. Knight 173, 200 Parrott v. EdmondsMi 630, 632 Parrott v. Hodgson 268 Parry, Be 734 Parsons v. Ely V.' 374 Parsons v. Miller 222 Parsons v. Parsons 173 Paschall v. Passmore. ! 222 Patch V. White 138 Patten v. Herring 740 Paul V. Carver 292 Payne v. Eosser 382 Payne v. Sale 187 Peacock v. Evans 374 Peadro v. Carriker 392 Pearce v. Loman 497 *Pearee v. Bickard. . .575, 577, 583 Peard v. Kekewieh 734 Pearson v. Hanson 596 Pease v. Davis 160 Pedder v. Hunt 421 Pederson v. Cline 259, 268 Peer V. Hennion 421, 428 Ixxvii TABLE OF CASES "Pells V. Brown ..77, 85, 97, 328, 452, 480, Penn and Wife v. Heisey Pennsylvania, Co. v. Bauerle... _. , 613, Pennsylvania Co. v. Price Penny v. Peppin People V. Braueher •People V. Byrd 358, 503, 520, 521, 534, 552, People V. Camp. . .^ 380, 571, People V. C. & N.'w. By People V. Cooper People V. Dulaney. . : People V. Freese People V. Gilbert People V. Hazelwood People V. Jennings ^ .504, 505, 520, People V. Knopf People V. MeCormick People V. Martin *Peoria v. Darst 307, 340, 343, 358, 445, 446, Perceval v. Perceval •Perrin v. Blake 37, 437, Perrin v. Lepper 322, Peter v. Beverly Peterson v. Jackson 303, 304, 318, Phayer v. Kennedy. .. 309, 358, Phelps V. Cameron 575, Phelps V. Randolph... 259, 261, * Phene's Trusts, In re 635, Philipps V. Chamberlaine Pliillips V. Gannon 219, Piatt V. Sinton Pibus V. Mitf ord Pierce v. Brooks *Pierey v. Roberts Pinbury v. Elkin Pingrey v. I^ulon 327, 347, Pinkney v. Weaver 303, 305, 309, Piper V. Connelly Pirbright v. Salwey Pirrung v. Pirrung Pitney v. Brown See. Sec. Pittenger v. Pittenger 221 483 Pitzel v. Schneider 390 309, 336, 499, 500, 513, 528, 563, 565, 570,. 652, 653, 677j 626 684, 707 658 Pitzer v. Morrison 160 158, 161, 166, 323, 398, 462, 302 467,470 Plunket V. Holmes 309, 311, 358 555 Polk V. Faris .^ 199, 437 572 Pollock V. Maison..'. 229 296 Pollock V. Speidel 322 253 Pool V. Blakie 158 181 Pool V. Potter 644 202 *Porter, In re 713 227 Porter v. Doby 431 253 Portland v. TerwiUiger 222 Post V. Rohrbaeh 526 301, 467, 653, 662 '253 *Post V. Weil 222, 225 401 Postal Tel. Co. v. Western 253 Union Tel. Co 727 Potter V. Couch 183, 727, 728 448 Potts V. Curtis 370 99 Poulter v. Poulter 64S 441 *Powell V. Boggis 435, 713 379 Powell V. Brandon 199, 437 628 *Powell's Trusts, In re... 694, 695 Powers V. Egelhoff 497, 500 384 Powers v. Wells 332, 649, 651 469 Prather Roberts 390 528 Trafton v. Black 697 181 Tredennick v. Tredennick . . 690, 694 *Treharne v. Lay ton 540 164 *Tritton, In re 107, 491 208 Trogdon v. Murphy 485 602 Truman, In re 584 209 Trustees v. Brainard 297 116 Trustees v. Petefish 697 540 Trustees of Schools v. Braner. . 662 220, 227 Trustees of Union College v. 572 ' City of New York 219 Ixzxiii TABLE OP CASES Tucker v. Adams Tucker v. Billing Turner v. Hause 233, 384, 390, 409, Turner v. Ivie Turner v. Meymott Turner v. Wright , 399, Tnrney> ^tn re 510, Twisleton v. Griflath: Twist V. Herbert. 604, Tjrler v. Moore Tyler v. Yates Tynte v. Hodge Tyrrel 's Case Underhill v. Saratoga & Wash- ington E. B. Co 222, Union Safe Deposit v. Dudley. 575, Ure V. Ure 187, 192, TJzzell V. Horn ,67, *Vachel V. Vachel Vallette v. Bennett Valter v. Blarka *Vanatta v. Carr Vanderheyden v. Crandall Vamgieson v. Henderson 412, 414, *Van Grutten v. Foxwell. . .37, Van Home v. Campbell Van Bensselaer v. Hays Vansant v. AUmon Vermont, Village of, v. MiUer. Vernon v. Wright Vestal V, Garrett 137, 138, *Viner v. Trancis Vinson v. Vinson ....451, 453, 456, 463, 464, Virgin v. Marwiok 587, Vogt V. Vogt -.187, Volunteers of America v. Peirce Von Beek v. Thomsen '. . Voris V. Benshaw.240, 279, 662, Voris V. Sloan 195, 360, 406, 409, 418, 540, 544, 546, 565, Waddell v. Battew.98, 106, 312, Wade-Gery v. Handley Wafer v. Mocato Sec. Sec. 309 Wagner v. Wagner. . . . . ; 196 659, 732, 740, 744 Wagstaff V. Lowerre 431 565 Waite v. Littlewood .". 602 187 Wake v. Varah 602 258 Wakefield v. Van Tassel 465 .'216, 662, 752 513 Wakefield v. Wakefield 370 317, 338, 358,599 606 Waldo v. Cummings 181 480, 483, 485, 488, 489, 494, 370 545, 652, 656, 714 370 Walker v. Converse 319 67 Walker v. Mulvean 390 Walker v. Pritehard 240 168, 202, 467, 485, 486, 492, 610, 648, 649, 722, 726 580 Walker v. Shepard 714 645 Walker v. Taylor 704 69 Walker v. Walker (25 Ga. 420) 196 107 Walker v. Walker (283 111. 11) 69 500, 509, 520, 526^527, 537, 573 465 Walker's Estate, In re 603 648 Walkerly's Estate, In re 704 187 Wall V. Goodenough. . .233, 245, 453 Wallace v. Bozarth 182 440 Wallace v. Poxwell 421 372, 412, 417, 429, 436, 448, 719 .626, 729, 739, 745 9 Wallace v. Monroe 183, 728 217 Wallace v. Noland 292 552, 585, 591,595 196 Wallace v. Wallace 617 308 Wallingford v. Hearl 384 556 Walpole and Conway 332 Walsh V. Wallinger 637 466 Walton v. Follansbee 593 183, 187, 192, 193, 309, 320, 191 321, 358, 645 557 Ward v. Amory 191, 192, 645 587 Ward v. Butler ..'.....?... 417, 441 712 Ward v. Caverly. 648 Warden v. Bichards 628 Wardle v. Carter 370 647 Wardner v. Baptist Memorial 358 Board 647, 648 208 Wardwell v. McDowell 282 .619, 620, 628^ 630 Ixxiv TABIVE OP CASES See. Ware v. Bichardson 187, 192, 193, 645 Ware v. Schintz 217, 230 Wiarner v. Bennett 277 Warner 's Appeal 556 Warren v. Warren 319 Warren v. Webb 648 Watkins v. Reynolds 69 Watkina v. Speeht 67, IBS', 193 Watkins v. Weston 160 Watson V. Dodd 309, 358 Watson V. Meteher 245, 280 Watson v. Pearson 183, 191 Watson V. Smith 375 Watson V. Watson 387 Watson V. Young ,. 686 Watts V. Clardy 199, 437 Watts V. Parker , 64 Way T. Geiss 562,565 Weale v. Lower 97 Weart v. Cl-nser '. 407 Weatherall v. Thomburgh. . 733, 734 *Webb V. Hearing 331 Webbe v. Webbe 195, 196 Webster v, Nichols. 243, 280 Wieehawken Ferry Co. v. Sisson 575, 577 *Weekes' Settlement, In re... 637 Wehrhane v. Safe Dep. Co 440 Weigel V. Green 384, 390, 397 Weihe v. Lorenz 161 Weimar v. Fath 628 Weinreich v. Weinreieh 222 Welch V. Allen 69 Welch V. Ciftwe 167, 533 Welch V. Welch 178, 180,418 *Weld V. Bradbury 476 Weldon v. H6yland 575, 578 Welliver v. Jones 196, 324, 359, 406, 407 Wells' Estate, In, re 359, 405 Wells V. Prince 385 Welsch V. Belleville Savings Bank 168, 441, 471, 485, 486, 487, 488, 489, 492, 493, 494, 648, 720, 722, 723, 726 Wendell v. Crandall 380 See. Wenner v. Thornton 621 *West V. Berney 611 West V. Fitz.184, 185, 187, 191, 444 West Side Auction Co. v. Conn. Mut. Life Ins. Co 254 Westcott V. Arbuekle. .267, 268, 271 Westcott V. Edmunds. 69 Westcott V. Meeker. . .421, 423, 424 Wetmore v. Henry 635 Wetzel V. Meranger 276 Weymouth v. Irwin 503 *Whartori v. Masterman. . . 733, 734 Whelen v. Phillips 370, 375 Whitaker v. Rhodes 398 Whitaker v. Whitaker 392 Whiteomb v. Rodman 137, 138 White V. Collins 421 White V. Crawford 170 White V. Glover 643, 644 White V. Green. 205 White V. Naerup 220, 251, 272 *White V. Summers 98, 309 White V. Taylor 628 White V. Warner 282 White V. Willard.....354, 463, 464 Whiting V. NichoU 395 Whittaker v. Gntheridge . . . 720, 726 Wicker v. Ray... 184, 190, 430, 433 Wiggins Ferry Co. v. O. & M. Ry. Co 301 Wiggin V. Perkins 331 Wight V. Thayer 409 *Wild's Case 561,562 Wilder v. House 265, 267 *Wilkes V. Lion 411 Wilkinson, In re 641 *Wilkinson v. Duncan 691 Willhite V. Berry'. 384 Williams, In re. .... . .510, 512, 513 'Williams v. Elliott 158, 168, 301, 471, 483, 725 WUliams v. Esten 320, 320a, 321, 479 * Williams v. Herrick 658 Williams v, VanderbUt 248, 254 Williams v. Williams (189 111. 500) 135, 137 Ixxxv TABLE OF CASES See. Williams v. Williams (91 Ky. 547) ; 173 Williams, Re; Spencer v. Brig- house 208 Williamson v. Qarnes 531 Williamson v. Baniel 199, 437 •Willing V. Baine 598 Willis V. Hiseox 421 Willis V. Lucas 205 Willoughby v. Brideoke 370 Willoughby v. Lawrence. ..240, 243 Wills V. Wills 208 Wilmans v. Bobinson .....' 409 Wilmington Star Mining Co. v.' Allen ■ 282 Wilson V. Duguid.' 636 Wilson V. Gait 216, 472 Wilson V. Jones & Tapp 282 Wilson V. Knox 510, 513 Wilson V. Kruse 64 Wilson V. Mason 617 •Wilson V. Piggatt 616 Wilson V. Turner 159, 168, 471, 485, 717, 720, 722, 726 Wilson V. Wilson (261 111. 174) - 531, 546, 551, 552 Wilson V. Wilson (268 111. 270) 131, 158, 168, 718 Wimberly v. Hurst 641 Winchell v. Winohell 404, 406, 411, 420, 546, 548 Wingfield v. Wingfield 173 Winslow V. Goodwin 324 *Winsor v. Mills 658, 678, 737 Winston v. Jones 643 Winter v. Dibble 412, 420, 421, 423, 424, 425, ...428, 441, 535 Winter v. Gorsuch 178, 181 Winterbottom v. Pattison 403 Wintle, In re... 513 Wiseot 'b Case 314 Wisdom V. Becker 620 • Wistar v. Scott 575, 577 Witham v. Brooner 69, 453 Wolfe V. Hinea 628 Sec. Wolfer V. Hemmer 158, 414, 415, 441, 471, 717, .720, 721 WoUaston v. King 690, 694 *Wood, In re ; 674 Wood V. Burnham 433 Wood V. Morton 233 Wood V. Robertson. 339, 579 Wood V. Taylor 178 Wood V. Wood 652, 653, 657 ■Woodall V. Clifton 665 *Woodbridg«! v. Jones 648 Woodcock 's Appeal 593 Woodhouse v. Spurgeon. ... . . . 205 - WoodrufE V. Water Power Co.. . 219 Woodruff V. Woodruff 222 Woods V. Soucy '.237, 245, 248, 249, 253 Woodstock Iron Co. v. FuUen- wider 390 Woodward v. Cone... 247, 248, 254 Wooldridge's Heirs v. Watkins 630 Wren v. Bradley 750 Wright V. Pearson 429 Wright V. Wilkia .' 222 Wright V. Wright 173 Wrightson, In re 98 Wrightson v. Macaulay. .;.... 572 Wyeth V. Stone 590,593 Wynch, Ex parte 187 Wyndham v. Wyndham.'. 208 Xander v. Easton Trust Co 187 * Yates V. Compton 622, 628 Yates V. Phettiplaee 497 Yelverton v. Yelverto* 63 Youman's Will, In re 190 Young V. Davies 196 Young V. Harkleroad 106, 472, 482, 552; 565, 571 Young V. Snow 678, 732 * Young V. Waterpark 616 Young V. Young. .'. 309, 358 Young's Settlement, Re 734 *Younghusband v. Gisborne 731 Zabriskie v. Wood 407 Zebaeh v. Smith- 629 Zuver V. Lyons 187 Ixxivi Conditional eScI Future' Interests And Illegal Conditions and Restraints in Illinois BOOK I. INTRODUCTION TO THE LAW OF ESTATES AND FUTURE INTERESTS. Ptefatory Statement: It will be assumed that the Roman, occupation of Britain left no vestige of the Roman law there and that no remnants of the Anglo-Saxon law of property have so far survived in America as to make any reference to that law necessary. A beginning is made, then, with the feudal system of land law introduced into England by the Normanu after the Conquest. The distinctly feudal land law flourished and developed between the time of William the Conqueror and that of Henry VIII. During the first half of this period, from 1066 to 1300, the more important and vital subjects of land law related to feudal tenure and its incidents., After 1300 the development of estates in land and conveyance became perhaps the predominant feature of the law. In the reign of Henry VIII. forces which had been gaining headway for more than a century laid the foundation for a freedom in conveying land and creating interests in it which had not before existed, and which made the beginning of our modern law of estates and con- veyance. Within the last century legislation has taken steps in many directions to simplify and make more rational modes of conveyance, and to increase the liberty of the individual in creating interests in land. Thus, the gaieral course of evolution Kales Fut. Int.— 1 ]_ INTRODUCTION TO THE LAW OF REAL PROPERTY has been from a system of feudal land-law, in which the creation of estates in land and the modes of conveyance were restricted, to a modern freedom in both respects. It is the purpose of this -introduction to set out the general outlines of this evolution, and more particularly to emphasize the way in which the modern law, permitting greater freedom in the creation of future inter- ests in land, emerged from the restrictions and limitations of the feudal land law. CHAPTER I. THE FEUDAL LAND LAW. TITLE I. ' TENURE AND ITS INCIDENTS. § 1. The feudal system of tenures: It was an essential feature of the feudal system in England that all lands were held mediately, or immediately, of the king.i This condition of land holding was introduced into England after the Norman Conquest in two ways : first, by the confiscation of lands by the crown and the regranting^ of them by the crown ; second, by the voluntary surrender of lands by owners, and the receiving of them back from the crown as feudal tenants, subject to the obli- gations which the feudal system imposed. By this means the king became the feudal lord paramount of all England.^ The feudal tenants who held immediately of the king were the great feudal overlords, and were called tenants in capite. They in turn granted estates to feudal tenants who held under them, and these, in turn, might , have feudal tenants under them. The tenant on the land, was known as the tenant paravail. He was supposed to make avail, or profit, out of the land. The tenant between the king and the tenant paravail, was a mesne, or intermediate tenant.* The existence of this system of tenures, or feudal holding, under another became universal. There were three kinds of tenures.' Each fulfilled a different function in the feudal orgaiiization. There were military tenures, socage tenures, and frankalmoigne tenures. These' tenures were, however, compara- tively empty relations apart from the incidents and services attached to them. The vital and practical importance of tenure was not that it established an intangible relation between the iCo. Lit. 65a; 2 Bl. Com. 59, 60; 2 2 Bl. Com. 59. 1 Sray's Cases on Prop., 2na ed. 3 2 Bl. Com. 59, 60; 1 Gray's 307. Cases on Prop., 2nd ed. 307, 308. 3 § 2] INTRODUCTION TO THE LAW OF REAL PROPERTY [Ch. I lord and the tenant, but that it fixed the character of the serv- ices which the tenant rendered to the lord. When, therefore, the feudal system was in fuU life the determination of the tenure by which land was held was the same as a determination of the incidents and services which one holding by that tenure must render to the lord. §2. Military tenures — necessary services: Military ten- ures existed where land was held by knight service. This was the most honorable tenure. Of this tenure Pollock and Maitland say : * "By far the greater part of England is held of the King by knight's service, (.per servitum militaire). It is compara- tively rare for the king's tenants in chief to hold any of the other tenures. In order to understand this tenure we must form the conception of a unit of military service. That unit seems to be the service of one knight, or fully armed horseman {servitum unius militis) to be done to the king in his army for forty days in the year, if it be called for. In what wars such service must be' done, we need not here determine; nor would it be easy to do so, for from time to time the king and his barons have quarrelled ^ about the extent of the obligation, and more than one crisis of constitutional history has this for its cause. It is a^ question, we may say, which has never received any legal answer. " Other services which belonged to military tenures were homage and fealty.^ The first was the formal oath which the tenant who had a fee simple rendered to his lord. Fealty was the less formal oath exacted from a life tenant. § 3. Incidents of military tenure : The incidents of mili- tary tenure were as follows: Aids, relief, primer seizin, fines, wardship, marriage, and escheat. All but the last are thus described by PoUock : * " First there were payments called aids:'' in the theory of our earlier authors they were offered of the tenant 's free will, to meet the costs incurred by the lord on particular occasions; but they settled into a fixed custom afterwards if they had not really done so when those authors * 1 Pollock & Maitland 's History, s Lit. §§85, 90-93, 95, 97; 1 2na ed. 254; 1 Gray's Cases on Gray's Cases on Prop., 2na ed. 313, Prop., 2nd ed. 312. See also. Lit. 314. §§95, 97; Co. Lit. 72b; Lit. §§98, « Pollock on Land Laws, 60, 61. 100, 110-112; 1 Gray's Cases on 7 2 Bl. Com. 63; 1 Gray's Cases Prop., 2nd ed. 312, 313. on Prop., 2nd ed. 315, 316. Oh. I] FEUDAL LAND LAW. [§ 4 wrote. The occasions in question were the ransoming of the lord from captivity; the knighting of his eldest son, 'a matter that was formerly attended with great ceremony, pomp, and ex- pense,' and the marriage of his eldest daughter. The amounts payable for the two latter purposes were assessed at the fixed proportion of a twentieth, of the assumed annual value of the holding by statutes of the thirteenth and fourteenth centuries. Then there was the relief * payable by an heir of full age on his entry, which likewise became fixed at an early time. ' In the case of land held of the crown, the king also took a year's profits, which was called primer seisin,^ and a fine ^° was payable by the tenant on every alienation of the land. If the heir was under age, the king or other lord became the guardian of both the heir and estate, and rendered no account of the profits; on the heir's coming of age a fine was payable to the guardian for quitting the Iftnd. This privilege of the lord, in many cases a highly lucrative one, was called wardship ; and incident to it was the right of disposing of the ward in marriage, which ap- pears to have been commonly treated as a matter of sale a,nd barter iii the guardian's interest." ^^ The return of the land to the lord when the tenant died without heirs, was termed escheai.^^ As lands during the feudal period could not, except in a few cases by special custom, be devised by will, escheat must have been a profitable incident for the lord. Furthermore, un- der the feudal law the failure of heirs could much more easily occur than at the present time. The tenant's heirs might fail by attainder. This occurred where the tenant was hung for crime, abjured the realm, or became an outlaw. . So, if the ten- ant were illegitimate and died withput heirs of his body, there was a real failure of heirs, for an illegitimate person could have no collateral heirs. So, if the tenant died leaving relatives who were aliens, there would be an escheat, for they could not be his heir^^. ' ^ § 4.'^ Socage tenures — Several kinds: Petit Serjeanty: The tenant % soc;^age held of the king, to whom he yielded a trifle in lieu of irent^gnd services.^^ Borough English: The youngest 8 2 Bl. Com!l65; 1 <3ray's Cases ii Id. 317-320. on Prop., 2nd ed. 316.' 12 Id. 320. 9/^.317. , 13 Lit. §159; 1 Gray's Cases on 10 Id. 320. *^' Prop.,„2Dd ed. 322. 5 § 5] INTRODUCTION TO THE LAW OF REAL PROPERTY [Ch. 1 son inherited the land upon the death of the tenant.^* Burgage: Land in an ancient borough held of the king by a certain fixed rp.Tit.i5 Gavel kind,: All the sons inherited equally. If there were no sons, aU the daughters inherited equally. There was no escheat in case of felony. Lands held by this tenure could be disposed of by will.^^ By Divine Service: The religious serv- ices were definite and the incidents of this tenure limited,^'' § 5. Services and incidents : Socage tenure was adapted to the peaceful occupations of the feudal order. The feudal tenant in socage rendered to the overlord a certain or definite service, or a certain or fixed rent, in lieu of all services. ^^ In this way the burden was precisely known and did not involve the de- parture of the tenant from the land to take part in military con- flicts. Homage was seldom rendered by a tenant in socage. Fealty was the usual service. ^^ The regular incidents of socage tenure are thtis described by Pollock: 2*' "In the case of non-military free tenure,' & relief ^^ of a year's rent was payable where a rent in money or kind was reserved, and primer seisin if the land was immediately held of the crown; 22 and the aids for the knighthood of the lord's eldest son, or marriage of his eldest daughter, were also due. But the rules of guardianship were quite different; the guardian in socage was not the lord, but the nearest of kin to the heir among those to whom the land could not possibly descend, the wardship lasted only tUl the heir was fourteen years old (when he was free to chose his own guardian until full age), and, most important of all, the guardian was accountable. ' Such guardian in socage,' says Littleton, 'shall not take any issues or profits of such lands or tenements to his own use, but only to the use and profit of the heir ; and of this he shall render an account to the heir, when it pleaseth the heir, after he accomplisheth 1*7^.323. 19 Lit. §§118-120, 130-132; 1 15 Lit. §§ 162-164; 1 Gray's Cases Gray's Cases on Prop., 2nd ed. 321, on Prop., 2nd ed. 322, 323. 322. 10 Lit. §265; 2 Bl. Com. 84; 1 20 Land Laws, 61. Gray's Cases on Prop., 2nd ed. 324- 21 Lit. §§ 126-1?!»; 1 Oray's Cases 325. on Prop., 2nd)«a. 323. "Lit. §137; 1 Gray's Cases on 22 Co r.Jt. (|77a; 1 Gray's Cases Prop., 2nd ed. 326. on Prvp . ; ,1 ed. 323-324. 18 Lit. §§ 117, 120; 1 Gray's Cases on Prop., 2nd ed. 321. Oh. I] FEUDAL LAND LAW [§ 7 the age of fourteen years. ' " 2s There was no incident of mar-^ riage. Whether there were aids or not has been the subject of dispute. Fines and escheat,^* however, existed as under military tenures. §6. FrankaJmoigne tenure: Land was held by frankal- moigne tenure when it was held in return for general religious services which were voluntary on the part of the tenant.^^ The tenant was a religious corporation. There were practically no incidents at all to frankalmoigne tenure.^® There might pos- sibly have been aids. Fines might have existed if the corpora- tion were allowed to, or did in fact, alienate. Escheat it would seem clearly must have existed. Thus, upon the dissolution of a corporation still possessed and entitled to lands, it would seem that they would escheat to him of whom the land were held or his heirs. It was said, however, by Coke that the land did not escheat to the lord, but that upon the dissolution of the corpora- tion it passed to the donor. ^^ The fact, however, was that since no new frankalmoigne tenures could be created after the Stat- ute of Quia Emptores in 1290, all religious corporations held their lands of the donor or his heirs. Hence, when they were dissolved, an escheat was in fact to the donor. As" the ecclesias- tical corporations were practically the only corporations. Coke's general statement that upon the dissolution of a corporation the land returned to the donor, was in fact a statement that the land escheated. The English courts, in the time of Coke him- self, so held.2* § 7. Effect of the Statute of Quia Emptores (1290) : The Statute of Quia, EmptoHs permitted free alienation by tenants in fee simple, prohibited the creation of any further frankal- moigne tenure except by the king and stopped subinfeudation. The effect of the Statute is thus described by Pollock: 29 "The Statute of Quia Emptores passed in 1,290, and one of the great statutes ,of Edward I.' was made in the interests of the great 23 Lit. §123; 1 Gray's Cases on dJray's Cases on Prop., 2na ed. 326. Prop., 2nd ed. 324. 27 Co. Lit. 13b. 2*2 Bl. Com. 89; 1 Gray's Cases 28 Johnson v. Norway, Winch. 37 on Prop., 2nd ed. 324. (1622); Gray's Rule against Per- 25Lit. §135; 1 Gray's Cases on petuities, §50. Prop., 2nd ed. 326. 29 Land Laws, 67-70. 26 (No fealty.) Lit. §131; 1 § 7] INTRODUCTION TO THE LAW OF REAL PROPERTY [Ch. I feudal overlords. It dealt a heavy blow to the consistency and elegance of the feudal theory, but made the conditions of land tenure far more simple. It was the first approximation of feudal tenancy to the modern conception of full ownership. Before 1290 the feudal tenant who aliedated the whole of 'his land put the new tenant in his place, as' regards the lord; but, if he alienated a part only, the effect was to create a new and distinct tenure by suhinfeudation, as it is called. Thus, if the king granted a manor to Bigod, and BigoS granted a part of it to Pateshull, Bigod was tenant as regards the king, and lord as re- gards Pateshull. Bigod remained answerable to the king for the services and dues to be rendered in respect of the whole manor, and Pateshull to Bigod in respect of the portion Bigod had granted him. Pateshull, again, might grant over to Spigor- nel a portion of what he had from Bigod, and as to that portion, would be Spigornel's lord, and Spigornel would be his tenant. A person who, being himself a tenant, is lord of under-tenants, is called a mesne lord. These under-tenants were constantly multiplying, and not only titles became complicated, but the interests of the superior lords were gravely affected. The lord's right to the services of his tenant were in themselves unchanged by suhinfeudation; but, his chance of getting them practically depended on the punctuality of the under-tenants, against whom he had no personal rights, in rendering their contribu- tions to the immediate tenant. The profits coming to him by escheat, marriage of wards, and wardship, were also diminished. Many years before the statute in question the great lords had thought themselves ill-used in this matter. It was provided by Magna Charta that no free tenant should alienate more of his holding than would leave him enough to perform the services — this shows, by the way, that at the beginning of the thirteenth century feudal services and dues had ceased to represent any- thing like the full annual value of the land. But this was found inadequate by the superior lords, and in 1290 the law was funda- mentally changed. It was enacted that every free man might thenceforth dispose at will of his tenement, or any part thereof, but, so that the taker should hold it from the same chief-lord and by the same services. The incomer became the direct tenant of the chief -lord, and liable to him, and to him only, for a pro- 8 Ch. I] FEUDAL LAND LAW [§ 9 portionate part of the services due in respect of the original holding." § 8. Effect of the Statute of Charles II: During the three centuries ^following the Statute of Qma Emptores there was a general tendency toward the commutation of services exacted from lands held by military tenure into such fixed escuage as parliament might assess, and the gradual (disappearance of some of the incidents of tenure, especially of military tenure. Thus fealty and relief in socage tenure became obsolete. Military tenures themselves were, however, entirely swept away by the Statute of 12 Charles II., c. 24 (1660).3» That abolished all military tenures and their incidents, except certain honorary services relating to grand serjeanty. It turned all military tenures into common socage tenures. The statute had no effect on socage tenures except to do away with socage fines and aids. Fealty and relief in socage tenures had become obsolete so that escheat was the only incident which remained. The guardianship in socage was developed and improved by permit- ting the father to appoint persons of his own choice to be his children's guardians after his death, if he left them under age. This is, indeed, the basis of the modern law of guardianship. The Statute ^of Charles II. prohibited even the king from grant- ing land in frankabnoigne tenure. As far as there was any fine incident to frankalmoigne tenure it was abolished. § 9. Tenure in the United States: If there is in this coun- try any tenure between the owner of lands in fee and another, that other is the state, for the Statute of Quia Emptores is in force prohibiting subinfeudation and the state has taken the place of the crown.^^ The single incident of tenure left is escheat. The statutes, however, are so general, providing for an escheat to tne state, that land as a matter of fact might be held allodiaUy — ^that is, without any tenure — and the escheat be the result of the statute, i 30 1 Gray's Cases on Prop., 2nd Hays, 19 N. Y. 68, 73; 1 Gray's ed. 327. / Cases on Prop., 2nd ed. 330, 331. 31 Benio, J., in Van Benssclaer v. § 10] INTRODUCTION TO THE LAW OF REAL PROPERTY [Ch. I TITLE II. SEISIN IN ITS RELATION TO ESTATES. § 10. Seisin defined in relation to estates : Today owner- ship, as distinguished from possession, is the important matter in the law of real property. Ownership is protected. Owner- ship, and not possession, is what contributes to the state inithe Avay of taxes. Social organization is built up upon ownership. Under the feudal system quite the reverse was the case. The feudal state depended upon the performance of services and the personal rendering of the feudal dues. The only practical way of determining who was responsible for these was to look to the physical possession of the land. "Whoever was in possession, claiming an interest which carried with it the performance of the feudal dues, was the person from whom the feudal dues might be exajited. Since the maintenance of the state was based upon the ^rendering of the feudal services by the person in possession claiming the feudal estate, it was inevitable that such feudal possession should be protected in much the same way that we today protect ownership as distinguished from possession. This feudal possession was called seisin. By the time of Edward I. the estates or interests to which the feudal dues attached had become, to a certain extent, differ- entiated so that there were three of them — the fee simple, the fee tail, and the estate for life. These were called freehold es- tates. They might with propriety be called feudal estates because they were the different sorts of estates which the feudal system recognized as carrying with them feudal services and dues, de- pending of course, upon the tenure under which they were held. The statement that seisin is "possession claiming a freehold," now becomes intelligible. Freeholds were feudal estates, the pos- session of which carried the feudal dues. Seisin is the possession whifsh determines what feudal dues shall be rendered. Hence "possession claiming a freehold," is possession of a character which fixes the feudal dues! In contrast with the freehold or feudal estates were the es- tates less than freehold, or non-feudal estates. These were terins for years and estates at will. Possession of these did not involve the payment of any feudal dues. In fact the feudal system did 10 Ch. I] FEUDAL LAND LAW [§ 11 not at first recognize any such estates, nor was the possession of the tenant for years, or tenant at will, protected in any way. Tenants for j^ears, or at wiU, did not have any right of property at aU until the thirteenth century.^^ Topic 1. Estates in Possession — Freehold, Less Than Freehold, and Joint Interests. J 11. Freehold estates— fee simple: Froin the feudal point of view, this was an estate which passed upon the death of the one seized of it to whojpver among his lineal, or collateral, rela- tions was his heir at law, and when that person hecame seized in his turn of the fee simple and died, the land would pass by descent in the same way to his heir at law. The estate was created by this form of gift -."To A and his heirs. ' ' The phrase "and his heirs" expressed the intent that A and his heirs for- ever were to enjoy the land. In the feudal land law, when alienation inter vivos was restricted, A and his heirs could take, for the most part, only by the succession of inheritances. The words "and his heirs" were called words of limitation since they operated merely to define the character of A's interest. It was the rule of. the feudal land-law that the use of the word "heirs" was necessary to create a fee simple. "Words which expressed the intent that A should have an "absolute estate," or a "fee simple," or an estate "forever," were insuf- ficient to create an estate in fee simple when the word "heirs" was omitted. The use of any expression which did not contain the word "heirs," no matter how emphatic, resulted only in the creation of an estate for life.^^ The rule that the word "heirs" was necessary to the creation of a fee simple in a conveyance inter vivos has persisted down to modern times. In this country statutes, dating back now, for a century or more, have abolished the rule, and usually provide, in substance, that a conveyance shall operate to transfer a fee simple unless a contrary intent expressly appear's. 32 Post, § 21. ' 33 Lit. § 1 ; 1 Gray 's Cases on Prop., 2nd ed. 332. 11 § 12] INTRODUCTION TO THE LAW OP REAL PROPERTY [Ch. I § 12. Fee simple subject to a condition subsequent : It seems to have been permissible from the earliest period of the feudal land law to create a fee' simple subject to a condi- tion subsequent, upon the breach of which the fee simple would come to an end and the creator of the fee, or his heirs, would have a right to enter and effect a forfeiture. It was, of course, a necessary corollary to the validity of such a limited fee simple that the right of entry on the breach of the condition was a valid future interest in the land.^* § 13. The fee simple determinable or base fee : Before the Statute of Qviia Emptores stopped subinfeu'dation- it is probable that a fee simple to last for an indefinite length of time — ^viz., till a certain tree should fall — might be created, leaving a right of reverter in the creator of the estate or his heirs. This resulted in a different situation from that where the fee was subject to a condition subsequent. There the fee was subject to be defeated by the breach of the condition subsequent. The fefe did not ipso facto come to an end upon the happening of the condition, but did so upon the entry of the creator of the estate or his heirs. The fee simple determinable, however, came to an end ipso facto by the happening of the event which speci- fied the ultimate limit of its existence. The right to create such a fee before the Statute of Quia Emptores was justified upon the ground that the transferee of such a fee held of the trans- feror. Some controversy has of late occurred among distin- guished writers as to whether there could be created, since the Statute of Quia Emptores, such a determinable or base fee. Gray maintains that logically such a fee could not be created because there could be no tenure between the feofor and feofee. He produces some .authority to that effect. On the other hand, less logic, but more alleged authority, is produced to show that the courts did actually permit such base or determinable fees to be created after the Statute of Quia Emptores.^^ In this country it has been assumed, and in some cases actually held, that when there has been a gift of land to a charitable corpora- tion which dissolves without transferring its- property, the fee of the corporation comes to an end upon the dissolution of the ^^Post, § 23. ties, §§ 31-42, 744 et aeq.; 1 Gray's s5 Gray 's Eule against Perpetui- Cases on Prop., 2nd ed. 339. 12 Ch. I] FEUDAL LAND LAW [§16 corporation, and in that event, ipso facto, reverts to the donor or to his heirs.^® § 14. Pee tail — Introductory: There have been four stages in the history of the estate tail: First, its position before the Statute De Donis,^'^ as a conditional fee simple; second, its origin under the Statute De Bonis as an estate tail; third, the struggle to make the estate tail alienable in fee simple ; fourth, modern legislation. >| 15. Before the Statute De Donis: If, before the Statute De Donis, the landowner attempted to make a settlement of lands so that they could be enjoyed only by A and the heirs of his body, the effect was to permit the descent of the land from A to his lineal heirs in infinitupi so long as they should last. When the line of lineal heirs ceased to exist, the fee would go to the original creator of the estate or his heirs. Befor"^ the Statute De Donis the estate so attempted to be created in A was a feie simple conditional. It was a fee simple in A which was subject, however, to be terminated when A ceased to have any lineal heirs. If the intent expressed had been fully carried out no alienation in fee simple of the land so limited would have been permitted to interfere with the ultimate return of the fee to the creator of the estate. But the courts did not enforce, to this extent, the expressed intent. They held that as soon as issue were born to A, A had a fee simple which he could alienate so as to deprive his issue and prevent any return of the fee to the donor.** § 16. Origin of the estate tail under the Statute De Donis : The law, as it existed before the Statute De Donis, was unsat- isfactory to the landowner who wished to perpetuate the owner- ship of his lands in his lineal issue forever by making the land inalienable in the hands of successive lineal heirs. The Statute De Donis was secured for the purpose of effecting this object. It provided that where there was a conveyance "to A and the heirs of his body," the intent as expressed should be carried out, and that neither A nor his issue should have any power to alienate the land so as to prevent the continued descent to . ^ioPost, § 302. 38 Co. Lit. § 19a; Leake, Digest of 37 Stat. 13 Edw. I. eh. I. 1285; Land Law, 35; 1 Gray's Cases on 1 Gray's Cases on Prop., 2nd ed. Prop., 2nd ed. §§334, 335. 335. 13 § 17] INTRODUCTION TO THE LAW OF REAL' PROPERTY [Ch. I lineal heirs of A, or so as to defeat the rights of whoever would be ultimately entitled to the fee- simple upon failure of A'& issue. The issue were given an action to enforce their rights ' against any attempted alienation made by A, and the one ulti- mately entitled to the fee was given an action to enforce his rights upon the failure of issue. The former action was called a formedon en le descender, the latter, a formedon en le re- verter. The estate thus created by statute became and has ever since been called an estate tail. It is improper to speak of the estate tail as a common law estate. It is a purely statutory estate. It was not an estate tail until the rights of the issue, ' and the one ultimately entitled to the fee, were protected by the Statute De Bonis. To the creation of an estate tail in a conveyance inter vivos it has always been necessary that the word "heirs" be used. No other word or phrase will do. In addition to the word "heirs" any formula may be used which shows that -heirs are to be confined to lineal heirs, or heirs of the body, ThQ donor may create an estate tail general,*^ namely, to A and the heirs of his body; or an estate tail special,*" namely, to A and the heirs of his or her body by a particular wife or husband; or an estate tail male or female, namely, to A and the heirs male of his body; or to A and the heirs female of his body.*i § 17. The strugfg^le to make the estate tail alienable in fee simple: For almost a century the Statute De Bonis was given full effect. The result must have been that a large portion of all the land in England became, or were in process of becoming, ■ estates tail, and wholly inalienable by any one until there was a failure of issue and, by this means, a termination of the estate tail. This was an intolerable condition, Three ways were found by the courts to defeat the object of the statute and to make the estate tail alienable in fee. First: It was held that if any one warranted an estate to a stranger, if the warrantor's heir was a tenant in tail, such i tenant was barred from claiming the estate tail if assets had descended on him from the warrantor. Even where the war- 39 Lit. §§14, 15; 1 Gray's Cases *i Lit. §§21-24; 1 Gray's Cases on Prop., 2nd ed. 336. on Pro^., 2nd ed. 337, 338. ■I" Lit. §§16, 17; 1 Gray's Cases on Prop., 2nd ed. 337. 14 Ch. I] FEUDAL LAND LAW [§ 17 ranty had been given by one from whom the estate tail could not possibly have descended to the heir, the tenant in tail was held to be barred to claim the estate tail, even though no assets descended. This was known as the doctrine of collateral war- ranty.*^ I Second: The courts allowed a collusive suit to be brought by the one to whoim the tenant in tail wishdd to convey the land in fee. This was called a common recovery. The judg-- ment in thi^ suit barred not only the issue in tail, but also all • reversioners and remaindermen. The validity of common re-, coveries to disentail land was first judicially recognized about. 1473. The common recovery is thus described by Blackstone : *^ "Edwards being tenant in tail in possession and being desirous of barring the entail and alienating in fee to Giolding, proceeds as follows : Golding, who is called the demandant, is procured to bring a writ of prcecipe against Edwards; who is called the tenant to the prcecipe, alleging that Edwards came into posses- sion after Hunt had turned the demandant out. The tenant appears and calls Jacob Moreland, ' who is supposed, at the original purchase by the tenant, to have warranted his title, and prays that Jacob Moreland be .summoned to defend. This is known as the voucher, Morelandl is the vouchee. Golding, the demandant, then demands leave to imparl with, the vouchee in private, after Mfhich Moreland, the vouchee, makes default. Golding then has judgment againW Edwards, the re'coveree, and Edwards has judgment to recover of Jacob Moreland land of equal value." A recovery with 'double voucher occurred in this wise: Edwards first conveyed aTa estate of freehold to an indifferent person who becomes tenant to the prcecipe. There is a Avrit of prcecipe against such tenant who vouches Edwards, who in turn vouches Moreland. Goldii^g recovers the land and the tenant recovers against Edwards, who recovers against Moreland. If Edwards is tenant in tail and is vouched, the recovery bar^ every latent right which Edwards may have in the lands recovered.** *2 1 Gray 's Cases on Prop., 2nd of the court officials was known as ed. 338, note. , the common vouchee. It ' was cus- 43 2 Bl. Com. 357. tomary to vouch Mm to warranty ** The warranty by Moreland was and judgments for lands of unto)d fictitious. In Blackstone 's time one value stood against him. 15 § 18] INTRODUCTION TO THE LAW OF REAL PROPERTY [Ch. I Third: The Statutes of 4 Henry VII. ,ch. 24 (1490), and 32 Henry VIII. ch. 36 (1540), gave to finesthe same general effect as had been given to common recoveries. A fine was another sort of collusive suit. In it the transferor was called the conusor, the transferee, the conusee. The fine was unlike a recovery, in that it ended with a concord, or compromise, instead of with a judgment. A fine levied with proclamations in accordance with the provisions of the statutes mentioned bound immediately all persons claiming under the conusor, and bound, unless claim was made within five years, all other persons.*^ § 18. The further effort to secure an inalienable estate tail: After fines and recoveries became effective to bar the entail, an attempt was made in creating the estate tail to impose a condition that upon the levying of a fine, or suffering a re- covery, or, taking any steps to either end, the estate tail should be forfeited, or go over to another. This effort failed because the condition yras held to be an illegal ground for forfeiture, since it attempted the forfeiture of an estate upon a lawful aliena- tion.*^ The word "perpetuity" was first ^used in the law in connection with this attempt to forfeit an estate tail if any steps were taken toward the levying of a fine, or suffering a recovery, by the tenant in tail.*'^ It was said by the judges that this was an attempt to create a "perpetuity.' ' Perpetuit yjn. this sense meant the attempt to create anV^lienable and inde- structible estate tail. "^^ i Still the English landowner did not give up the struggle to attain the practical objects of the inalienable and indestructible estate tail. By the end of the seventeenth century what is known as the strict settlement had been fairly well perfected in outline. This" represents the landowner's final effort to achieve an inalienable and indestructible series of estates in the family. A, the landowner in fee, having a son B, conveys the property so that the legal title will vest in himself for life with a remailider to B for life; with a remainder to B's 45 1 Gray's Cases on Prop., Snd I'Mildmay's Case, 1 Co. 175 ed. 338, note. (1582) ; 6 Co. 40a (1605) ; 1 Gray's *8Co. Lit. 223b, 224a; Kales' Cases on Prop., 2ad ed. 398; Kales' Cases on Future Interests, 1214, Cases on Future Interests, 1215, note, note 8. 16 CH. I] FEUDAL LAND LAW [§ 19 first, and other sons successively in tail male; with other re- mainders to females in tail, and an ultimate gift to A's right heirs. A and B are tenants for life and the eldest son of B is the first tenant in tail. Upon A's death, B finds himself tenant for life in possession, and his infant son C is the first tenant in tail. C, even if he were of age, could not bar the entail without B's consent, because C.is not the tenant in tail in possession. In order to give fuU effect to a fine, or recovery to bar the entail, the consent of the person in possession to be made a tenant to the praecipe must be obtained. B cannot bar the entail alone because he has only a life estate. When C comes of age, B proposes that C, in consideration of being well provided for during the remainder of B 's life, shall join with B , in the barring of the entail and making a new settlement of the estate so that B shall be tenant for life with a remainder to C for life, and a remainder to C's first and other sons successively in tail male, with estates tail to the females, and an ultimate gift over to B's right heirs." In well-regulated families C does not refuse. This process fs repeated from generation to genera- tion, and so long as it can be kept up, the land is never subject to alienation of the fee. In this manner the English convey- ancers finally accbmplished the practical objects of the estate tail as provided by the Statute De Donis with the one qualifica- tion that dijring each succeeding generation the new tenant in tail must consent to continuing the inalienability of the estate.** § 19. Modern legislation: In England the estate tail re- mains as under the Statute Be Bonis, with a practical power of alienation in fee by the tenant in tail ,by means of a fine or recovery. The principal change has been to provide simpler! methods of docking entails. Thus, instead of a fine or recovery,"! a simple disentailing conveyance by the tenant in tail is all that is required.*** But the rules applicable to fines and re- coveries so far obtain that the tenant in tail can only dock the entail by a disentailing conveyance where he could do so ' 48 "Changes in the English Law *!> 3 and 4 Wm. IV. ch. 74; 1 ^ Of Eeal Property in the Nineteenth Gray's Cases on Prop., 2nd ed. 338, Century," by Arthur XJnderhHl. A note. Century of Law Eeform, 280-340; Three Select Essays in Anglo-Amer- ican Legal Histbry, 675. Kalpj! Tfiit. Int. 2 1 7 § 19] INTRODUCTION TO THE LAW OP REAL PROPERTY [Ch. I f by a fine or recovery. Hence, if he is merely the tenant in tail ' in remainder and a life tenant is in possession, the life tenant must join with him in the disentailing conveyance, precisely as he must join with him in the levying of a fine or feuflfering a recovery. In Massachusetts the entailment is apparently good so long as the estate is not conveyed. The statute provides that "a person actually seized of lands as tenant in tail may convey such lands in fee simple by a deed in commop form, in like ijaanner as if he were seized thereof in fee simple, and such oonveyance shall bar the estate tail, and all reversions and ^remainders expectant thereon. "^'^ ^"The Massachusetts statute also provides that where lands are held by one person for life, with a vested remainder in tail to "another, the tenant for life and the remainderman may convey such lands in fee simple by the ordinary form of deed in like manner, as if the re- mainder had been limited in fee simple, and that such deed shall bar the estate tail and all rcA^ersions and remainders ex- pectant thereon.®^ In many American jurisdictions, estates tail are in terms abolished arid turned into estates in fee simple. In a few states the estate tail is made a life estate in the first taker, with a remainder in fee simpl? absolute to the children of the, first taker, or to the person or persons to*whom the estate would first pass according to the course of 'the common law at the death of the first taker.^- ' In a considerable number of American states, however, the statutes are silent as to estates tail. What is the state of the law in such jurisdictions ? If the Statute Be Bonis be regarded as in force, under the general rule that in this country we brought with us the common law as modified by English statutes passed prior to the first settlement, we should have in these jurisdictions the estate tail as it existed in England just after the Statute Be Bonis. It would logically follow, that the force and effect given to fines and recovei-ies, must also be adopted and that the whole law of barring estates tail, by means of fines and recoveries, must be incorporated into the law of these states. As a practical matter, Jiowever, fines and recoveries ' 50 Public Stats,'' M^ss. 1882, ch. si Id. § ll6. 120, § 115. \ 52 Fost, §402 et seq. 18 CH. I] FEUDAL LAND LAW [§ 20 are regarded. as obsolete in these states, and the learning with respect to them is unknown. Yet, if these states recognized the estate tail, as it was created by the Statute De Bonis, without fines and recoveries, or some other method to bar the estate tail, we should have the extraordinary condition that inalienable and indestructible estates tail would still be flourish- ing at the present day in an American jurisdiction, where they are utterly inconsistent with the manners and customs of the people. In Iowa, where the court had to face the problem of what the law was when the statutes were silent with regard to estates tail, it was held that the Statute Be Bonis w^s utterly incon- sistent with the manners and customs of the people of that state, and so far inapplicable that it could not be considered as brought into that state wfth the common law. That left the attempted estate tail in Iowa in the same position that an attempted estate tail was in England prior to the Statute Be Bonis. It was a fee simple conditional, and the fee was alien- able, so as to become indefeasible as soon as issue had been born. Such seems to be the law in lowa.^ As a specimen of a legal antiquity it is certainly entitled to first place. § 20. Estates for life : An estate for any uncertain period, and not an estate at will, is a life estate. An estate at will is an estate at the will of both the lessor and the lessee.^* The fact that the estate is expressed to be at the will of one of the parties usually raises the inference that it is at the will of both.^^ If, however, an estate be at the will of the lessee alone, or of \ the lessor alone, it must be classed as a life, estate and conse- i quently as a freehold estate.^s Usually, however, life estates are expressly limited to continue during the life of the person taking the estate, or during his and other lives, or during the lives of other persons alone. ^'' There are a number of life estates which arise by operation o'f law. The tenant in fee tail, after possibility of issue ex- tinct, has but a life estate. The extinction of the possibility of 53 Kepler v. Larson, 131 la. 438. 3 Gray 's Cases on Prop., 2iid ed. 54 Co. Lit. 55a; 3 Gray's Cases 311. on Prop., 2nd ed. 315. 57 Lit. §§56, 57; 1 Gray's Cases 55 Id. on Prop., 2nd ed. 341, 342. soBeeson v. Burton, 12 C, B. 647; 19 § 21] INTRODUCTION TO THE LAW OP REAL PROPERTY [CH. I issue occurs when there is an estate tail special to A, and the heirs of his body by B, and B dies without issue.^* When a man married a woman who was seized of land, he became seized by operation of law of an estate in the marital right for the joint lives of himself and his wife in all the land of the wife. Upon the birth of issue, if the wife had been seized in fee, he became entitled at her death to an estate for his life in the whole. This last was called the tenancy by curtesy.^* A wife upon the death of her husband became entitled to a liffc estate in one-third of all the real estate of which her husband was seized in fee in his lifetime. It was not necessary that any issue be born of the marriage. The wife's life' Estate was called dower.'^'^ In determining whether the wife had dower, or the husband had curtesy, the actual seisin of the husband or wife Avas necessary. A remainderman or reversioner after a free- hold had no seisin, and hence there could be no dower, or curtesy, in such a remainder or reversion.®^ § 21. Estates less than freehold: These were terms for years, at will, and at sufferance. A term for years is one which continues until a day certain.^^ ^jj estate at will is one which is terminated at the will of both the lessor and the lessee.** There is, however, a well-recognized rule of construction, that an estate at the will of the lessor is also an estate at the will of the lessee.** Perhaps an estate at the, will of the lessor may be construed to be at the will of the lessee also. An estate, however, at the express will of one party, is an estate at will only because, by a process of construction, it is at the will of both parties. If it were in fact an estate at the will «f one party alone it would not be an estate at will, but a life estate.*^ An estate at sufferance was not really an estate at all. It was the name given to the possession of one who h^d entered law- fully but eontinueJvto hold unlawfully.** Prom the present day point of view it is plain that a term 58 Lit. i§32, 33; 1 Gray's Cases 62 Lit. §58; 1 Gray's. Cases on on Prop., 2nd ed. 340. Prop., 2nd ed. 342. 59 §§ 34, 35; Co. Lit. 29b, 30a; 1 o^Ante, § 20. Gray's Cases on Prop., 2nd ed. 341. «*7A 80 Lit. §§36, 53; 1 Gray's Cases i^^ Id. on Prop., 2nd ed. 341. flo Lit. § 68 ; 1 Gray 's Cases on 61 Post, § 30. Prop., 2nd ed. 342. 20 Ch. I] FEUDAL LAND LAW [§ 21 for years — ^let us say, one hundred and ninety-eight years — is as much an interest in land as an estate in A for his life. Both estates give a right of possession which the law protects to the same extent and by the same remedies. . Yet the fact remains that the term for years has all the attributes of an interest in personal property, land is called personal property, or a chattel real, while the life estate has the attributes of an interest in land and is called real property. The explanation of this dif- ference is to be found in the way in which the feudal law treated terms for years. In the feudal scheme of society the term for years seems to have had no place. No feudal duesj or services were exacted from tenants 'for years. The pos- session did not count for anything from the feudal point of view. The relation between the landlord and tenant was only that produced by a personal contract. The feudal tenant was the one who had the freehold estate, while the tenant for years ' was in possession simply by reason of the personal contract he had with the freeholder. The freeholder was from' the feudal point of view in possession. He was actually seized in spite of the presence of the tenant upon the land. From the feudal point of view the tenant for years had no estate at all, but only a personal claim against the freeholder to occupy accord- ing to the agreement. The tenant only came to have an estate, or right of property, when the law began to give him a remedy whereby he might specifically enforce the contract by securing and retaining the possession which was promised. "Originally he [the tenant] had no. remedy in case of his ejectment, unless he held under a covenant with his landlord. If so, he might have an action of covenant against his landlord in case he had been ejected by the landlord himself or any one claiming the land by superior title and might recover, in the former ease, possession of his holding for the rest of his term, if unexpired, but otherwise damages only. But afterwards special actions were given to a tenant for years against any person, who had wrongfully ousted him or acquired possession of his land from a wrongful ejector. And though at first it was doubted whether these actions enabled him to recover anything but damages, in the reign of Edward the Fourth it was established that he should therein recover possession of his holding as well." "'' At 67 Williams on Heal Property, 18th ed., 17; 1 Gray's Gases on 21 § 22] INTRODUCTION TO THE LAW OF REAL PROPERTY [Ch. I this point the possession of the tenant for years became legally- secure. In time it became as secure as that of the freeholder. The tenant for years then had a right of property in addition to his personal contract. But this right of property was not a feudal property-right. It did not involve the rendering of feudal dues or services. It was, and it has remained to this day, a non-feudal estate essentially different from the feudal estates of freehold. § 22. Joint ownership: The feudal law recognized four sorts of joint ownership as follows: 'Coparceners:^^ Under the common-law rule of descent where females were entitled, they took altogether as one male heir. There was no such thing as a descent tq heirs in the plural. "Where several females held by descent as one male heir they held as coparceners. If one coparcener died leaving a son, her undivided interest passed by descent to that son and he became a coparcener with his mother's sisters. The coparcenery continued so long as the descents kept up. But if one coparcener aliened her share, the alienee and the remain-, ing coparcener were tenants in common.** Joint Tenants: ''<* Several might hold as joiiit tenants. They also were regarded as holding by a Single title. When one died the others took the entire property, but a joint tenant might transfer his undivided interest to a third party, who would then hold as a tenant in, common with the others.'' ^ Upon his death the share would descend as his own property. The third party might re-convey to the joint tenant who had conveyed to him, ; and the joint tenant would then hold as tenant in common with the other joint tenants, and upon his death his interest, so held as tenant in common, would pass to his heir. This process was known as severing the joint tenancy. Estates by the entirety: When there was a conveyance to a man and his wife, both held by the entirety. Upon the death Prop., 2nd ed. 1; Pollock on Land '"Lit. §§277, 280-282, 287, 291; Laws, 137, 138; Kales' Cases on 1 Gray's Cases on Prop., 2nd ed. Future Interests, 241. 344. 68 Lit. §§241, 242, 254, 265; 1 7iLit. §§292, 294; 1 Gray's Gray's Cases on Prop., 2nd ed. 343. Cases on Prop., 2nd ed. 345. 69 Lit. §309; 1 Gray's Cases on Prop., 2nd ed. 345. 22 Ch. I] FEUDAL LAND LAW [§ 24 of one, the otl^er took the whole estate. This estate by entirety could not be severed by the alienation of one spouse alone. ''^ Tenants in common: These held undivided interests by sep- arate titles '^^ and upon the death of any one his undivided interest passed by descent in the same manner as property held by him alone. The common-law rule was that when land was conveyed to several persons a joint tenancy was meant and not a tenancy in common. ■'* In this may be seen the feudal purpose of keep- ing the land always in a single own^r as far as possible, so that the responsibility for the feudal dues might be the more easily ascertained and enforced. Of course, today the rule that a joint tenancy is meant would )ae contrary to the fact and the common-law rule has, therefore, been generally abol- ished by statute, and in its place has been established the rule that a tenancy in common is meant unless the joint tenancy be expressly provided iorJ^ Topic 2, Future Intebests. • § 23. Possibilities of reverter and rights of entry upon con- dition broken: These have already been dealt with in con- sidering the propriety of determinable fees and fees subject to a condition subsequent.'^^ It follows that if you may have a fee, subject to a condition subsequent, the right, of entry which accrues to the creator of the estate, or his heirs, upon the breach of the condition, is a valid future interest. So, if a determinable fee is valid, and determines upon the event specified happening, there exists a valid future interest by way of a possibility of reverter in the creator of the determinable fee or his heirs. § 24. Reversions after a particular estate of freehold : Whenever one seized in fee created out of his fee a lesser estate of freehold — as an estate tail, or a life estate — after the ex- 72 Lit. §291; Challis on Eeal 7* Lit. §277; 1 Gray's Cases on Property, 2nd ed. 344, note; 1 Prop., 2nd ed. 344. Gray's Cases on Prop., 2Bd _ed. 344, ^s Post, §§ 210, et sect. note. , ' IS Ante, §S12,-13. 73 Lit. §292; 1 Gray's Cast, on ' ■ Prop., 2nd ed. 845. 23 § 25] INTRODUCTION TO THE liAW OP HEAL PROPERTY [Ch. I piration of the less estate, the owner in fee would have the fee which he had not wholly parted with. The less estate is called the particular estate, and what is left in the owner in fee is called, during the continuance of the particular estate, the reversion.'''' Clearly the reversion arises liy operation of law. Under the feudal law, and ever since, it has been a valid future interest. Its existence and validity were, in reality, corollaries to the permitting of estates less than a fee simple. The reversion was clearly unobjectionable from the point of view of the feudal requirement that someone must always be in possession claim- ing a freehold, so that he might be responsible for the feudal dues. If the lesser estate were a freehold there was such a tenant in possession. There was clearly no chance for a gap between the time when the particular estate terminated and the time when the reversioner could enter. The reversioner, or his heir by descent from him, stood ready during the con- tinuance of the reversion to take possession whenever and how- ever the particular estate might determine.^* § 25. Remainders after a particular estate of freehold : Suppose under the feudal law an attempt was made to create by the act of the parties a future estate in a third party, having precisely the same attributes as the reversion already described: Thus, land is conveyed to A for life, and by the same instru- ment a future interest is limited to B and his heirs. B and his heirs here stand ready at all times during the continuance of A's estate to take possession 'whenever and however A's life estate terminates. If A forfeits his life estate before his death, B or his heirs may at once step in. There will be no gap in the feudal possession. There will always be a tenant seized of the freehold to answer for the feudal dues. Such a future interest was clearly unobjectionable. It was held v^,lid in all prob- ability long before the fifteenth century. It was called a re- mainder,''^ and more recently, a vested remainder. From the 17 2 Pollock & Maitland's His- "-Williams on Tjeal Property, tory, 21, 22; Williams on Eeal 21st ed. 333, 3iC; Kales' Cases on Property, 21st ed. 332,' 333; Kales' Future Interests, 57; 1 Gray's Cases on Futfire Interests, 56. Cases on Prop., 2nd ed. 316. T8 Gray, Bule Against Perpetui- ties, § 113 ; Kales ' Cases on Future Interests, 57. 24 CH. I] FEUDAL LAND LAW [§26 of view it was vested because it stood ready at all times to''l!Ske effect in possession, whenever and however the particular estate determined. This was the vital characteristic because it precluded the possibility of any gap between the time when the particular estate^ ended and the time when the person to whom the future interest was limited, would have a right to enter. Such a gap would leave the seisin in abeyance and interrupt the continuity of the feudal services and dues. It would, therefore, have been highly objectionable. In fact the mere possibility that such a gap might occur was originally so objectionable that its existence would have caused the future interest to be wholly void.*" When, therefore, the future interest was so limited by the same instrument which created the particular estate, that it stood ready, during its continuance, to take effect in pos- session whenever and however the preoeding estate determines, the possibility of a gap was eliminated and the future interest was unobjectionable and valid. § 26. Springing: and shifting' future interests and limita- tions to classes: When the future interest is limited to take effect upon an event which will certainly leave a gap unfilled by any estate expressly limited, it is^aid to be a springing future interest. Thus, a conveyance to A for life and one year after A's death to B and his heirs, insures the gap of one year be- tween the termination of A's life estate and the taking effect of B's future interest. So, if an estate be limited to A, be- ginning one year hence, there is a gap of one year before A's estate begins. Such future interests were highly objectionable from the feudal point of view. If there. could be a gap for one year, there could be a gap for* longer. During the gap no person would be seized of the freehold and none would be liable for the feudal dues and services. It was of no avail to argue that there would be a reversion by operation of law to fill the gap for the year, or that where the estate was to . begin in A one year from the date of the conveyance, the trans- feror would retain the fee until the year was up. From the feudal point of view it was not to be expected that any one would undertake the burden of performing the feudal dues so Post, §28. 25 § 26] INTRODUCTION TO THK LAW OP REAL PROPEB;^^ ff»H. I attaching to a fee simple for the brief space of a y^r. Prom the feudal point of view the fact that there wouldlbe no in- ducement to any on^ to remain in possession of the ^e for one year was enough to justify the assertion that the ise would be in abeyance or in nubibus. The springing future interest was wholly void under the feudal land law.*^ When the future interest is limited upon an event which would terminate prematurely the preceding freehold, it is called a shifting future interest. Thus, if the conveyance be to A in fee and if A die without issue surviving, to B in fee, B has a shifting future interest. B's interest is said to lap over upon A's. A shifting future interest has been defined as one which laps over on the preceding estate. It is thus distinguished from a springing future interest which takes effect after a gap. The^ shifting future interest was also objectionable from the feudal point of view. The first taker who had the fee could not be expected to perform the feudal dues attaching to a fee when he might be obliged to give it up at his death. If the first taker did retain the seisin and perform the feudal dues, upon his death his heir might be expected to take advantage of the situation to continue in the actual seisin, and if B then attempted to enforce a right of possession, disorder and strife would be engendered. The shifting future interest was held wholly void under the feudal land law.^^ Suppose a freehold were attempted to be limited to the children of A, who had no children at the time. Clearly the attempt would be to create a springing future interest and the limitation to the class would be void. If, however, one child of A were in esse the conveyance would take effect as to that child. As to the other children, if they were expressly included in the conveyance, the attempt would be to create a shifting future interest divesting pro tanto the fee of the child in esse. Hence the conveyance as far as the afterbom children were concerned would fail. The net result was that in a conveyance to a class or to A and a class, such as his children, the con- veyance was valid to A and any members of the class in esse when the conveyance took effect, and invalid as to all others.®^ 81 Leake, Digest of Land Law, Cases on Future Interests, 58, 59. 2nd ed. 230, 231; id., 33; 1 Gray's ^^ Id. Cases on Prop., 2nd ed. 347; Kales' 83 Co. Lit. 9a; Sheppard's Touch- 26 CH. IJ FEUDAL LAND LAW [§ 27 This must^have been the rule under the feudal land law, no matter how clearly it was expressed that the afterborn mem- bers of the class were to share. §27. Contingent remainders — defined: If, after the crea- tion of a freehold, there is limited in the same instrument a future interest which stands ready during its continuance to take effect in possession whenever and however the preceding estate determines, so that there is no possibility of a gap in the seizin between the particular estate and the future interest, the future interest is valid by the feudal law. But if the future interest is limited so that it is sure to take effect after a gap between the termination of the preeeding«estate and the taking effect of the future interest, it is void. Now, suppose the future interest be so limited that it may- take effect by coming into -possession immediately upon the termination of the-preceding estate of freeholdi^ whenever and however that may occur, or as limited, it may take^'effect in possession some time after the termination of the preceding estate of freehold. Suppose, ■for instance, the limitations are to A 'for life, remainder to P in fee if he survive A. Here, if A's lite estate' continues till A's death, I?, will take in possession, if "he takes at all, at once on the termination of A's life estate. There will be no gap. If, however, A's life estate terminates prematurely before A's death, thfi fatal gap 'wiir~6ccur, l)ecause it will not be ascertained »t thjit time whether B will survive A 's death. Tak;6 another case: Suppose the limitations are to A for life,^then to the heir of B, B cannot have an heir till his death, sojthat it cannot be determined who is to take after 'the life estatgf until B's death. If B outlive A there will again be the f^al^ gap, but ef B die before A's life estate terminates, no gap 'can ^jossibly occur. It cajlnOfrb-^ foretold in advance whether the .objectionable gap will^pccur or n(Jl. Suppose esfctes are Ignited to A for Jife, then tO(. such cMldren of J;'a%reacii twenty-one. If at A's d/gath jfio childreji have reache(^ twenty-one then the objection- ^ible gap will hate occurred. If th^y have all reached twenty- one it will not. J It cannot i)e, fore*6ld in advance whether the gap will occ«*4|or not. The essential characteristic of all these cases 'is that|faiking the estates according to the expressed in- |36; Kakjj' Case s on Futiire §28] INTRODUCTION TO THE LAW OF REAL PROPERTY [Ch. 1 tention, the fatal gap may or may not occur. To put it another way, the event upon which the future interest is to take effect in possession is one which may 'happen before or after, or at the time of or after, the termination of the preceding particular estate of freehold. If the event liappens before, or at the time of the termination of the preceding particular estate, no gap occurs. If it happens afterwards, the gap does (occur.** Fu- ture interests which answer this description, are common-law contingent remainders. Their essential characteristic is the pos- sibility of a gap. § 28. Is the conting'ent remainder valid or invalid under the feudal law? It may be confidently asserted that before 1430 the contingent remainder was wholly void.*® The possibil- ity that there would be a gap in the seizin between the termina- tion of the particular estate and the taking effect in possession of the future interest caused the future inter^t to be discarded as void. It must, however, ultimately have been perceived that these contingent future interests might take effect without any gap; that they would do so if the event upon which they were limited happened before or at the termination of the particu- lar estate, and that if they actually did take effect in this man- ner they were not objectionable under the feudal system of l^nd laws. It is not surprising, therefore, to find that about 1430, such a^ture interest was allowed to take effect provided it did so in this|^nobjectionable manner .^e "When this happened the contingent remainder of the common law commenced its existence. The rule became this: If the e^ent upon which the future in- /tereat was limited to take effect in possession happened before, or at the tiftie of , the termination of the preceding estate, so. that the^ would be no gap, the future interest took -ffek as a remainder' and was'^lld. If, however, the event unf)ii • iiich the 1 future interest was iiMted to take effect m ^b^isession iiapr^ned after the tern^patioEtof the preceding estatf. so that t'e "^ap occurred, the fttture iiiter^. t was void, "fhis way of stati?>g the matter was ultinwiteji^',. tiAnslated intb the rule that the 84 Fearne, Contingent Eenl'ainderai sb Williams lou Heal Propnty, 3, 4; id. Butler's note (g); Lsake 21st ed. 356, 358; Kales' Cases on on Property in Land, 2nd ed. a33; ' I'uture Intere^s,^y80i>l. Kales' Cases on Future! Interests, ^oid, '■' ( 82. ■ « 28 Ch. I] FEUDAL LAND LAW [§29 contingent remainder -vfas destroyed unless it vested before the ' terfiiination of the precediqg interest/ 17The. word ''yistl'^ HiBant no more than that the future interest must come into a position where it stood ready to take effect whenfever and how- ' ever the preceding estate determihed, so that there could be no i gap. It is entirely immaterial whether it be said that the fu- ture interest must vest at, or before, the termination of the pre- ceding estate, or else be destroyed; or whether it is stated that the future interest is void unless the event upon which it is to take effect in possession happens at or before, and not after, the termination of the preceding estate. Both ways of putting the rule amount to the same thing. Both formulffl state what is known as the rul^.Qf,dejitructibility of contingent remainlders. TTie full force of this doctrine of destructibility of contin- gent remainders cannot be appreciated unless it be perceived that the particujar estate may. be prematurely terminated by the act of the one seized of it. ^'The life estate may be forfeited by a tortious conveyance, as by levying a fine, o.r_sufferuig^ re- covery, or making a feoffment in fee.*'^ The life estate may also terminate prematurely by merger. Thus if .A create an estate in B for life with remainder to B's unborn son, there will be a reversion in A by operation of law pending the birth of the eon. If, then, B convey his life estate to A, B's life estate will terminate by merger in the reversion in fee of A, and by this means the life estate will come to an end before B's death. Hence where A has a life estate with a remainder to B in fee if he survive A, there is the chance of a gap because A, by for- feiture or merger, may prematurely terminate his life estate before his death. Common law conveyancing js full of examples where, by prematurely terminating the life estate by forfeiture or merger^, the contingent remainder is destroyed.*^ § 29. Distinction between vested and contingent remain- ders: The common-law 'distinction between a vested and a ' contingent remainder, and the reason for the distinction, ought now to be plain. The feudal law singled out remainders which throughout their continuance stood ready at all times to take effect in possession whenever and however the preceding estate came /QJ'' an end, as unobjectionable because there was no possi- 87 Post, § 46. 88 Post, §§ 311, 312. 29 § 30] INTRODUCTION TO THE LAW, OP REAL PROPEETY [CH. I bility of a gap. Remainders having these essential cha,racter- istics wereLcaU.§d "vested." A vested remainder is, there- fore, very properly defined by Professor Oray as follows : *9 "A remainder is vested in A, when, throughout its continuance A, or A and his heirs, have the right to the immediate possession, whenever and however the preceding estates may determine." On the other hand a remainder limited to take effect in possession upon an event which may not happen till after the termination of the particular estate, presents the possibility of a gap. Re- mainders having this essential characteristic are properly called contingent remainders. A contingent remainder is thus per- fectly defined by Bu.tler : ^o "All contingent remainders appear to be so far reducible under one head that they depend for their vesting on the happening of an event, which, by possibility, may not happen during the continuance of the preceding estate, or at the instant of its determination. ' ' § 30. Seisin of future interests after estates of freehold: Not even the vested remainderman had any actual seisin. After mentioning that the reversioner had a sort of seisin because of the services rendered by him, the learned authors of Pollock and Maitland's History say: ^^ "On the other hand, we cannot find that any sort or kind of seisin was as yet attributed to the re- mainderman. He was not seized of the land in desmene, and he was not, like the reversioner, seized of it in service, for no serv- ice was due him." The absence of seisin in the remainderman seems always to have continued, for Hargrave says (the italics are his) : ^2 "But, in dpposition to what may be termed the ■ expectant nature of the seisin of those in remainder or reversion the tenant in possession is said to have the actual seisin of the lands." It followed, from the fact that the remainderman had no seisin that he did not render feudal services.®^ He could not bring a writ of right.^* In order to transfer a remainder the co-operation by attornment of the tenant was necessary, so that the actual seisin of the freehold in possession might be held for ^ 89 Gray's Eule Againbt Perpetui- 9i 2 Pollock & Maitland's History, ties, 2na ed. § 101. 39. "OFearne, Contingeat Eemainders, 92 Co. Lit., Hargrave 's note, 217. 9 Butler's note (g) ; Challis on Eeal 9s 2 Pollock & Maitland's History, Property, Srd ed. 125, 126; Leake, 39. Digest of Land Law, 2nd ed. 233. b4 Lit. § 481. 30 CH. I] FEUDAL LAND LAW [§31 . the grantee of the remainderman.^^ A remainderman, other than one who was an original purchaser, did not constitute a new stock of descent.* « The consequences arising from the fact that the remainderman had no seisin have come down to us in the rule that there can be no dower or courtesy in a remainder.®'^ § 31. Future interests after an estat? less than a freehold— By operation of law: Suppose A, being the owner in fee, en- ters into an agreement with B by which B ig allowed possession I for three years. "When this was merely a personal contract,** and B had no right of property which he could enforce, it ip plain that from the -feudal point of view A -was still in actual posses- sion of the freehold. ...B'spossessioil tvas not recognized by the feudal law. When, however, B came to have a right of prop- erty as against A, and against A's 'transferee, it is clear that A actually had only a future interest. He was not in possession. He had no right to possession ■ till the three years were up. Nevertheless B, having only a term for years, was not seized. A was still regarded as the feudal tenant having the, actual i seisin. This seisin was no doubt somewliat fictitious but, his- torically, it was the continuance as a fictitious seisin of what had been (before the tenant's possession was protected), an actual seisin. In more recent times it has been openly called a reversion, as if there were no difference between the rever- sion after a term and the reversion after a life estate^. In fact,\ however, there is this great difference: the reversion after aj term is in one who has an actual' seisin of a freehold in pos- " ' session, while the reversioner after a life estate has no actual seisin at all, and is not put upon the footing of one who hag."" This difference becomes of practical importance when it is to be determined whether a widow has dower. She has no dower 95 "Mystery of Seisin," by F. W. respect Hie remainder wag on the Maitland, 2 Law Quart. Bev., 481, footing of a mere right of entry by 490-493. . '' one disseised. "The Mystery of 9«4 Kent Com. 3#7'l In this re- Seisin," 2 Law Quart. Rev. 481, speet also the remainder was on the 485, et seq.; Kellett v. Shepard, 139 footing of a mere right of entry 111. 433, 449. by one ^disseised. The "Mystery ^^ Ante, §21. of Seisin," by F. W. Maitland, 2 ss Challis on Eeal Property, 3rd Law Quart. Eev. 481, 485. ed. 99; Kales' Cases on Future In- 97 Go. Lit. 29a, 32a; Seribner on terests, 242; 1 Gray's Cases on Dower, 2nd ed. 233, 321. In this Prop., 2nd ed. 350. 31 § 32] INTRODUCTION TO THE LAW OP REAL PEOPERTT [CH, I except in lands of which her husband was actually seized during coverture. Hence, she has dower in his so-called rever- sion after a term for years, but not in a reversion after a life estate.! §32. By act of the parties — Non-contingent interests: Suppose that a term for ten years is limited to A with a so- called remainder after that to B in fee. Here the estate of B is exactly like the so-called reversion after the term, except that it is an interest attempted to be created by express words. Tt might be assumed that before the tenant had any property right, his presence on the land did not at all prevejjt the trans- fer of the fee to B, so that B would actually be seized of a freehold. When the tenant came to have a right of property, B's interest was reaUy a future' interest exactly as where one had a reversion after a life estate. Nevertheless, B's interest continued to be valid, and what had perhaps before been a real seizin, was continued in JB as a fictitious seisiw. The reality of B's seizin was approximated as nearly as possible by requiring livery of seizin to be made to A, the tenant for years, for B.^ The theory still was that B received tha actual seisin, and the tenant became his tenant. Hence B's widow was entitled to dower in B's interest after the term. § 33. Conting'ent, future interests after a term: Suppose that after a term for ten years limited to A, an interest is limited to B provided he survive the term. Hel"e me condition upon which B is to take makes it impossible that B should receive anything approaching actual seisin at once. There can be, no tenant to the freehold until it is determined that 5 has out- lived the ten years. Since the term for years is a tion-feudal estate, the fatal gap in the seisin has occurred, and the interest of B must be void. Such was the feudal law.* Topic 3. Rule in Shelley's Case. §34. Statement of the Rule: This Rule deals with the legal effect of limitations to A for life (or in tail) with a remainder 1 Seribner on Dower, 2nd . ed. s Leake on Property in Land, 2nd §233. ed. 35; Kales' Cases on Future In- 2 Lit. §60; 1 Gray's Cases on terests, 242; 1 Gray's Cases on Prop., 2nd e^. 352. Prop., 2nd ed. 351. 32 CH. I] FEUDAL LAND LAW [§35 ■ to the heirs of A or to the heirs of the body of A. Where the remainder is thus limited to the "heirs" of A, the Rule requires thaj; A take the fee simple. If the remainder be to the "heirs of the body" of A, the Rule places the fee tail in A. The Rule may be thus stated: Wherever an estate of freehold is limited to A, followed by a remainder to A's heirs, or the heirs o:^ the body of A, A will take a fee simple, or a fee tail, as the ease may be. - ^ This rule dates back at least as far as 1324,* although Shelley 's Case appears not to have been decided until about 1581.5 § 35. The reasoning upon which the Rule was established : This is admittedly conjectural only. It has been insisted « that because, under the feudal law, there could be only one heir, "heirs" in the plural was not used as a word of purchase but as a word of limitation, meaning the indefinite line of inherit- able succession. An intent that the whole line of inheritable succession should take could only be given effect by holding that A took the fee simple or fee tail as the case might be so fhat the line of inheritable succession would take by descent from A? On the other hand it might well be urged ® that the remainder to the "heirs" of A, means that a remainder is at- tempted to be limited to the person or persons who would be the life tenant's heir or heirg. at the time of his death — ^heirs being used in the context as a word of purchase; that such a remainder would have been a contingent remainder and there- i fore wholly void before 1430 ; ^ that the result of the invalidity ' of the remainder would be to give A a life estate with a reversion jn fee to the settlor, which would disappoint the expectations of A's family and destroy the settlement; that to avoid this the law simply and directly deof eed that A should have the fee or the fee tail, as the case might be, and th^t A's heirs or the heirs of A's body wduld take by descent from A instead of by pur- * Abel's Case, Y. B. 18 Ed. II, e Goodeve, Law of Real Prop., 577 (1324), translated in 7 M. & G. 4tli ed. by Elphinstone, Clark and 941 note (a); Provost of Beverley's Dickson, 239, 240; Kalea' Cases on Case, Y. B. 40 Edw. Ill, fol. 9 a. b. Future .Interests, 251. ' [1366] ; Williams on Real Property, T Fost, § 423. 21st ed. 350, 351; 5 Gray's Cases s Compare, Challis on Real Proper- on Prop., 2nd ed. 83; Kales' Cases ty, 3rd ed. 152, 166, 167; Kales' on Future Interests, 250. Cases on Future Interests, 252, 253. 5 1 Co. Lit. 93b, 8 Ante, § 28. Kales Fut. Int. — 3 33 §36] INTRODUCTION TO THE LAW OP REAL PROPERTY [Ch. I chase from the settlor. In this view the Rule applied where the word "heirs" was used as a word of purchase and just because when so used the remainder would fail. The often repeated statement that "heirs" is used as a word of limita- tion is not so much the basis for the application of the Rule as a description of the situation after the ,Rule has been applied.^" Both lines of reasoning come to the same result but, as will hereafter appear, it may make a difference in determining the application of the Rule which vfew is emphasized.!^ § 36. Persistence of the Rule: The Rule in Shelley's Case has exhibited great vitality. It has been ^plied to equitable ^^ as well as legal estates in land. Some courts have (without ' justification, it is believed) applied it by analogy to interests ', in personal property. ^^ The Rule is stiU in force in England and in many states of this country. Sometimes repeated efforts in a state legislature to dislodge it have met with failure. Thus, a product of feudalism without a vestige of feudal reasoning left to support it, has come down to us and though the rule today clearly upsets testators' and settlors' intentions by giv- ing to the life tenant more than was expressly allowed him, yet legislatures are to be found which will not, or have not, abolished it. § 37. Operation of the Rule: The older view was that the Rule in Shelley's Case was sufScient by its own force to place the whole fee in A, the life tenant, and eliminate the life estate. It was assumed that the limitation to the heirs by virtue of some force of attraction united and coalesced with the limita- tion of the freehold to the ancestor and thus operated to vest in him a fee simple, or a fee tail, as the case might be. The later view is, that the limitation to the heirs is executed in the an- cestor, to whom a gift is implied, so as to vest in him a new and larger estate in which the particular estate of freehold merges when there is no intervening estate.^* In this view the Rule operates not at all on the life estate in A, but only on the re- mainder. It turns the remairider to heirs into a remainder to A. himself, so that in the usual case, when the Rule has operated^ 10 Tost, § 424. 1* Per Lord MacNaughton in "Van iiP(M«, §§421-428. Grutten v. Foxwell, [1897] A. C. 12 Posi, §§429 et seg. 658, 668;. Kales' Cases on Future 13 Post, §438. Interests, 285; yost, §440. 34 Ch. I] FEUDAL LAND LAW [§ 39 A has a life estate with a remainder in fee to himself. Then, A's life estate merges in A's fee and the only estate in A is a fee. It therefore, makes no difference how emphatically it be stated that A is to have only a life estate, the rule will apply. . That is settled.i5 If^ between the life estate to A, and the, remainder to A's heirs, a life estate to B be inserted, it is settled that, upon the application of the rule, A has a life estate, B has a life estate^ and A has a remainder in fee. No merger can occur be- cause of the intermediate estate. TITLE III. SEISIN IN ITS RELATION TO CONYEYANCE. §38. Distinction between descent and piirchase: ^^ The feudal, or commonjaw distinction between title by descent and title by purchase was this: Title came by descent when it passed by operation of law as by inheritiuice, by esQheg,t or where the tenant became seized of an estate of curtesy or dower. Title came by purchase where it passed by act of the parties.- A title was acquired by purchase if it came by act of the trans- feror, although no consideration whatever was paid. There- fore, where title came by devise, it came by purchase. In speak- ing hereafter of title by descent, or of title by purchase, it should be observed that these terms are used in this feudal or common-law sense. § 39, Descent — From whom traced: Today the rule is be- lieved to be universal in this- country that descent is traced from „the. person last entitled.^'^ This is the logical result of the fact that ownership is the'-vital thing at the present day. The feudal law, however, was intent rather upon the seisin or feudal possession, and, therefore, required that descent be traced from the person last seized. Suppose X, being seized in fee has, by his first marriage. A, a son, and B, a daughter, and by his second marriage, D, a son, and then dies. A the son is the heir at law. If A in fact entered and became seized and died, B would inherit from him because the half blood was excluded,^* isPerrin v. Blake, 1 W. Bl. 672 Gray's Cases on Prop., 2nd ed. 351. (1769); 5 Gray's Cases on Prop., ^t Post, §§380-382. 2nd ed. 89; Kales' Cases on Future is Lit. §8; 4 Gray's Cases on Interests, 260 ; post, § 441. Prop., 2nd ed. 8. "Lit. §12; Co. Lit. 18b; 1 35 § 40] INTRODUCTION TO THE LAW OF REAL PROPERTY [CH. I but if A died befor,e being actually seized, then descent would be traced from X, and D the son by the second marriage would be the heir at law.^* The feudal rule that descent must be traced from the person last seized made a practical difference where the descent of reversions and remainders was being traced. For instance, if subject to a life estate in A, B had a remainder in fee and died before A, B was not actually seized. Nevertheless, descent was traced from him because he was the first purchaser. The feudal law allowed this much relaxation in favor of the remainderman named. If, in the above case, B died before A, leaving as his heir C, and G thereupon died before A, on A's death descent was traced from B, and not from C.20 In the ease of an estate tail, however, descent is traced from the first purchaser — ^the first donee in tail. The issue' in tail take, not one from another, but one after another. Thus, if A having an estate tail, has a son X and daughter Y, by his first wife, and a son Z by his second wife, and dies, the son by the first wife takes the estate tail. If he dies without issue, then the son by the second wife takes, for Z takes from A.^} If descent were traced from X, Y Would take, and the property would escheat, rather than that the half blood, Z, should inherit. § 40. Feudal rules for descent of property: ^^ When the person last seized, or the person from whom we are to trace descent has been found, we have either one of two cas^s: first, where the person last seized has issue ; or second, where the per- son last seized has no lineal descendants. In the former case, descent was traced according to the following feudal rules: (1) The male issue must be admitted before the female. (2) Where there were two or more males in equal degree the eldest inherited, but the females all together. (3) The lineal descend- ants in infinitum of any person represented their ancestor. ^ y Where there were no lineal descendants, it is first necessary to observe that descent amon'g collaterals could only be to those Avho were of the blood of the first purchaser. This meant that " Id. 22 Canons of Descent, 2 Bl. Com. 20 Po«f, §§380-382. c. 14, 201-240; 4 Gray's Cases on 21 Co. Lit. 26b (Mandeville's Prop. 2nd ed. 9. Case) ; 4 Gray 's Cg,ses on Prop.,- 2nd ed. 9. 36 CH. I] FEUDAL LAND LAW [§41 land which descended from the father to the deceased must go to the collateral heir on the father's side. It would escheat rather than go to the collateral heir on the mother's side. Lands -which descended from the mother to the deceased must go to the collateral heir on the mother's side. It would escheat rather than go to the collateral heir on the father's side. If the de- ceased were himself the first purchaser, the heir might be f ouild from among the collateral relations on either side. Thus, it was first necessary in all cases of collateral descent to ascertain ' from among what class of collateral relations the heir might be found. When this had been ascertained the following rules applied: (1) The inheritance cannot ascend — ^that is td^ say, neither the father nor mother could take by descent from the deceased. An uncle would inherit before the father. (2) The male issue shall be admitted before the female — that is, the male collateral relations shall be preferred to the female. (3) When there are two or more males in equal degree the eldest only shall inherit, but the females all together. (4) The lineal descend- ants in infinitum of any persons deceased shall represent their ancestor, that is, shall stand in the same place as the person himself would have done had he been living. (5) The collateral heir of the person la^t seized must be his next collateral kinsman of the whole blood. (6) In collateral inheritances the male stock shall be preferred to the female, that is, kindred derived from the blood of the male ancestors, however remote, shall be ad- mitted before those from the blood of the female, however near; unless where lands have in fact descended from a female. In this country these rules of descent have been replaced by statutory provisions of descent based upon the equal division of property amongst children or issue per stirpes, or amongst col- laterals standing in the same degree of relationship to the de- ceased. §41. Devise: Devises of land are here noticed for the purpose of emphasizing that they were not permitted by the feudal, or common law of land. In some localities by custom, devises were permitted and the devisee after the death of the devisor might enter and 'hold without livery of seisin.'''^ 23 Lit. §167; 1 Oray's Cases on Prop. 2nd ed. 357. 37 § 42] INTRODUCTION TO THE LAW OP REAL PROPERTY [Ch. I § 42. Livery of seisin : Since it was of vital importance to the maintenance of the feudal system that it always be clear who had possession of a freehold, so that it might be known who was liable for the feudal dues, it was natural that, so far as the transfer of interests were permitted at all, they should be effected by a livery or transfer of the seizin or feudal posses- sion. Relying upon some picturesque phrases of the old books one is apt at the present day to exaggerate the importance of the delivery by the feoffor of a ring of the door, or a turf, or twig, upon the land to the feffffe in the name of seisin.'^* The really important thing was that the feoffor actually hand over the possession to the feoffee, so that as the feoffor moved off the land the feoffee moved on. A ceremonial livery where this did not occur was of extremely doubtful and precarious effect. Where the actual possession changed hands the livery was said to be a livery in deed or in fact.^s There was also livery in law. This occurred where the feoffor or feoffWlSemg in view of the land, but not on it,^he feoffor directed the feoffee to take pos- session of a freehold and the feoffee did so. But the livery was, only complete on the actual transfer of p&session, ajgd, if either the feoffor or forffee died before that occurred, the atftmpted livery was ineffective.^® The rule was that all freehold interests which possibly could, must be transferred by livery of seizin. Practically, that meant that when the feoffor had a present freehold interest in pos- session which he desired to transfer he was obliged to do it by livery of seisin.'^'' If the feoffor h^d a tenant at will in posses'-^, sion, he must determine the estate at will and make livery of seisin. § 43. Grant ajid attornment — Release : Some freehold in- terests, however, could not be, transferred by livery of seisin. That was so where a tenant for life, or in tail, was in possession, or where a tenant for years was in possession, and the one de- siring to make the transfer had a j-eversion or remainder only. The holder of the interest by way of reversion or remainder, "* Co. Lit. 48a ; 1 Gray 's Cases on 2t Lit. § 59 ; 1 Gray 's Cases on Prop. 2nd ed. 352. Prop. 2nd ed. 352. 26 Co. Lit. 48b; 1 Gray's Cases on Prop. 2nd ed. 352. 38 CH. I] FEUDAL LAND LAW [§ 43 had no immediate right of possession. He could not enter upon the possession of his tenant and make any lawful livery. Hence he could not transfer at all unless some method other than livet:^ were adopted.^s As a matter of fact the transfer of a future interest was permitted by grant, that is to say, an instrument under seal, called a grant.^* To supply the place of livery of seisin or transfer of the feudal possession, the tenant in possession was obliged to attorn,3o or assent to the grant, thereby becoming the tenant of tFe grantee and holding of him. The grant was wholly void and ineffective if no attornment oc- curred. To be effective, attornment must occur in the life of the grantor.^i A grant by the king, or to the king, however, was good without an attornment.^'^ No attornment was nec-| essary where the reversion was transferred by descent, escheat I or devise.ss The Act of 4 Anne, c. 16, § 9 (1705) , abolished the requirement of attornment in all cases.^* That Act has been re- ' enacted in this country ; ^^ or else is in force by reason of our adoption of the English common law and English statutes passed prior to the Revolution ; or else because attornihent is regarded as so far inconsistent with our manners and customs that it was never incorporated into our law.*® In on^ instance, however,^ where the common law and statutes of England in force prior to 1609 were expressly made part of the state law, the court said that the Statute of Anne was not in force and that attorn- ment was necessary,*'^ Release was the special name ^ven to a conveyance by grant by a reversioner or remainderman, when out of possession, to 28 Williams on Eeal Property, 256, 257; I Gray's Cases on Prop., 18th ed. 309; 1 Gray's Cases on 2nd ed. 354, note. Prop., 2nd ed. 353. 2* 1 Gray 's Cases on Prop., 2nd 29 Co. Lit. 172a; 1 Gray's Cases ed. 355. on Prop., 2nd ed. 353. ^s Stimson, American Statute 30 Lit. §551; Co. Lit. 309a, b; 1 Law, §2009. Gray's Cases on Prop., 2nd ed. 353, lePer Shaw, C. J., in Burden v. 354. Thayer, 3 Met. 76, 78; 1 Gray's 31 Co. Lit. 309a; Lit. §§567-569; Cases on Prop., 2nd ed. 355, note 2. 1 Gray's Cases on Prop., 2nd ed. 37 Fisher v. Deeding, 60 111. 114; 354, 355. 1 Gray's Cases on Prop., 1st ed. 32 Co. Lit. 309a, b ; 1 Gray 's Cases 446. Por the law in Illinois, see on Prop., 2nd ed., 354. post, § 379. 33 2 Shep. Touch. (Preston's ed.), 39 § 44] INTEODUCTION TO THE LAW OF REAL PKOPEETY [Ch. I the tenant who was in possession.®* It operated without any further formality to invest the tenant at once with the estate of the releasor. § 44. Conveyance by record: These were fines and re- coveries. The form of these collusive suits has been already sufficiently described.^^ § 45. Conveyance of estates less than freehold: Terms for years are non-feudal estates. They have the attributes of per- sonal property. So far as they are concerned seisin is jii. no importance. Hence in their creation and transfer, livery of seisin, or its equivalent, was unnecessary. Terms for years could be created by parol. But they were not fully launched as estates until the tenant had entered.*" Before entry he had but an interesse termini.*^ 'The tenant might surrender his interest by pa/rol and this extinguished the term without any other formality. It was essential, however, to such a sur- render by parol that it be made to the person having the next estate in reversion or remainder, so that the estate surrendered would merge in the estate of the surrenderee and thereby be- come extinguished.*^ This Statute of Frauds of Charles II. required surrenders, except those by operation of law, to be in writing. § 46. Disseisin and tortious conveyance: Disseisin was the wrongful entry upon the land and dispossession of the free- holder.*^ Today we regard the disseisor as the wrongdoer, and the disseisee is still the owner ; but so important was the fact of seisin to the feudal system that seisin unlawfully obtained, but nevertheless maintained, was favored in one way at least, which is unknown today. The disseisee was reduced to a mere right of entry which was barred if the disseisor's heir succeeded by inheritance before the disseisee recovered the seisin. The right of entry of the disseisee was said to be tolled by descent cast. Thereupon the disseisee was put to his reaf action. His right of entry was gone.** ssLit. §§444, 445, 459, 460; 1 *2 Co. Lit. 337b; 1 Gray's Cases Gray's Cases on Prop., 2nd ed. 356. on Prop., gnd ed. 356. 39 Ante, §17. *s Leake, Digest of Land Law, 40 Lit. §58; Co. Lit. 46b; 1 Part I, 56 ; 1 Gray 's Cases on Prop., Gray's Cases on Prop., 2nd ed. 342. 2nd ed. 357. *^Id. iiChallis on Real Pro^rty, 2nd 40 CH. I] FEUDAL LAND LAW [§47 Any person having actual possession could by feoffment invest another with the seisin, of an estate of freehold in. fee, fee tail, or for life. It made no difference that the feoffor had no right to possession and no seisin and no estate.- It made no difference whether the feoffor of the fee had an estate for years, or for life. In any case the feoffment operated to invest the feoffee with a feudal estate as designated. In short, one could by livery of seisin create in another a greater estate than he had. The feoffment was in that case called a tortious feoffment, or tor- tious conveyance.*^ "When a tenant for life made a tortious feoff- ment in fee, it operated to forfeit the life estate and at once disseise the reversioner, or remainderman. Such was taken to be the law until Lord Mansfield determined in Taylor v, Horde,**^ that the disseisin of the remainderman or reversioner should be considered a disseisin at his election. He might elect to treat it as a disseisin and enter, or he might elect to treat the life estate as still outstanding in the tortious feoffee. This was ^n innova- tion, but it was also a blow at the tortious operation of feoff- ments. An Act of 8 & 9 Victoria, chapter 106, section 4, abol- ished all tortious operation of feoffments. In this country the common-law doctrine of disseizin and tor- tious conveyance was in force to some extent in the colonies and States on the Atlantic seaboard, but the tortious effect of such conveyances has been abolished directly by statute, or 'ceased because the conveyance by livery has itself fallen into disuse. § 47. Inalienability of mere rig^hts of entry: Today, when we regard ownership as the important thing, it would seem ab- surd to say that one whose land was in the possession of a disseisor had nothing which he could alienate. Indeed, no such ruletnow exists, but the person disseised may alienate his rights or his so-called title with entire freedom. Not so in the feudal law. Professor Maitland suggests that the feudal holder did not conceive of the disseisee having anything which he could convey. He had a right to repossess himself of the seisin, but if he did not do that, he had nothing which could be made the subject of trdnsfer.*^ ed. 371-374; I Gray's Cases on •'siBlirr. 60. Prop., 2nd ed., 3,57, 358. ""Mystery of Seisin," 2 Law isia. Quar. Eev. 481. 41 § 48] INTRODUCTION TO THE LAW OF EEAJJ PROPBBTT [Ch. I §48. Inalienability of contingent future interests: Con- tingent future interests which were valid under the feudal land law, such as rights of entry for condition broken, possibilities of reverter, and contingent remainders, were inalienable. The contingent remainder in particular was voidtill it vested. The rule of inalienability inter vivos of such interests has come doWn to the present time.** 18 Post, §320. 4 CHAPTER II. LAND LAW UNDER THE STATUTE OF USES. TITLE I. USES BEFOBE THE STATUTE. § 49. Uses defined : There is nothing mysterious or diilfi- eult about the conception of a use. ' ' Use ' ' is simply the name for what today we call a trust when speaking about the relation created where A holds the legal title of property as trustee for H. Thus, when before the time of Henry VIII., A was seized in fee of land for the use of B and his heirs, A had the seisin as trustee for B. A was called the feoffee to uses. B was the cestui que use. The difficulty in understanding the law of uses arises largely in determining the origin, following out the de- velopment, and observing the purposes of uses, and in perceiving the evolution which, under the Statute of Uses, went on in modes of conveying land and the estates which might be validly created. § 50. Origin of uses: ^ From the time of the Norman Con- quest large amounts of land were given to religious houses. The crown and the feudal overlords became jealous of such gifts, for by them a new tenure was created, that is, frankalmoigne tenure. The only services required were general prayers for the donor's soul. The religious house was a corporation and the incidents of the tenure were insignificant. The Statutes of Edward I. at- tempted to stop these gifts in frankalmoigne tenure to religious houses. The Statute of Quia Emptores prohibited the creation of any new frankalmoigne tenures except by the king. The Statute of Mortmain prohibited the acquisition of lands by re- ligious corporations. To avoid the Statute of Mortmain the re- ligious corporations resorted to common recoveries, already de- scribed,^ by which they pretended to recover back lands of which 1 The description here given of the ^ Ante, § 17. origin of uses is taken largely from Pollock on Land Laws, 89. 43 § 51] INTRODUCTION TO THE LAW OP REAL PROPERTY [Ch. II they had already, been possessed and seized. In the same session of Parliament that the Statute De Bonis was passed tliis device was stopped. Again the religious houses evaded the law by a conveyance to a third party for their use. This again was stopped ty a Statute of 15 Eichard II. (1391). The idea of taking title to land in A for the use of B survived, however, for it was found to serve a useful purpose for laymen. Thus, where the cestui que use was attainted, a forfeiture was avoided.^ There was no payment to the lord on the death of the cestui. A num- ber of feoffees que use were kept seized so that there could never be a succession of the legal seisin by death. The incidents of wardship and marriage were avoided, but wardship and relief were restored by a Statute of 4 Henry VII. in spite of the use.* The cestui que use practically, had power to make a wiU since he might by testamentary declarations direct for whose use the feoffees que use should hold.^ The device of a use was also employed to avoid the payment of debts. Uses represented a distinct movement against the feudal land law. They provided a means for mitigating the burden of the incidents of feudal tenure and of achieving a greater liberty on the part of the real owner — ^that is, the one who held the use — in dealing with his land as he pleased, and without the formali- ties of conveyancing required by the feudal law. § 51. Enforcement of the use by the cestui: At first the ■ cestui que Use had no standing in any court for the enforcement , of the use. The feoffees did their duty in carrying out the pro- visions of the use solely by reason of the power of the church over the consciences of the feoffees. About the time of Edward III., however, the chancery began to enforce the use of the cestui against the feoffee by specifically requiring the feoffee to perform the trust.^ At first the use was enforced only against the orig- inal feoffees. It was not enforced against any one who had a conveyance from the feoffees, even though such transferee paid no value and had full notice of the use.. Later, however, the rights of the cestui were enforced against every one who took 3 Anonymous, Jenk. 190 (22 H. = Gilbert on Uses, 35; Bacon on VIL); 1 Gray's Cases on Prop., Uses, 16, 20; 1 Gray's Cases on 2na ed. 369. Prop., 2nd ed. 368, 369. * 1 Gray 's Cases on Prop., 2nd ed! 6 Keilw. 42, pi. 7 (1502); 1 370, note. Gray's Cases on Prop., 2nd ed. 368. 44 CH. II] STATUTE OF USES [§ 53 from the feoffees unless he were a bona fide purchaser for value. In that case the cestui had his remedy against the feoffees for breach of trust. At first the heir of the surviving feoffee to uses was not bound by the use. Later the chancery enforced the use against him. This occurred as early as the time of Henry VI.'^ The chancery would compel the feoffee to uses to add to their/ number if the cestui que use so desired. The cestui que usfe could assign his use without feoffment, deed, attornment, or any other common-law formality, and the chancery would enforce such assignment.* An estate of inheritance in the use de- scended according to the rules of the common law or special custom.^ § 52. Position of the feoffee and cestui que use at law as distingfuished from their position in the chancery: Outside of chancery the use received no recognition in any court. Out- side of chancery the cestui who was in possession of land was a mere tenant at will. The feoffee to uses held the feudal or legal title. He had the seisin and was liable for all the services and incidents of the feudal tenure.^** TITLE II. THE STATUTE OE USES. § 53. ToA Statute of Uses : Of all the statutes affecting the law of real property the Statute of Uses is the most famous and in its effect upon the land laws the most far-reaching. The statute revolutionized the law of conveyancing and greatly in- creased the freedom of creating future interests in land. ■ Never- theless, the forces which secured the statute were reactionary. The statute was passed in the interests of the feudal lords who took alarm at the inroads upon feudal tenures which were ef- fected by means of uses. It was their purpose by the Statute of Uses: (1) To abolish wills of real estate; (2) To prevent any convejranee which would not have been good at common law; (3) To prevent the existence of any use apart from the semw; tld. 10 Anonymous, Jenk. 190 (22 H. sBkeon on Uses, 16; 1 Gray's VIL) ; 1 Gray's Cases on Prop., Cases on Prop., 2nd ed. 368, note. 2nd ed., 369, 370. 9 2 Roll. Ab. 780; 1 Gray's Cases on Prop., 2nd ed. 368. 45 § 53] INTRODUCTION TO THE LAW OP REAL PROPERTY [CH. II (4). To destroy the secrecy of conveyances by requiring all con- veyances to be effected by the common-law modes. For accomplishing these results it was provided ^^ that ' ' where any person or persons stand or be seised, or at any time hereafter shall happen to be seised * * * to the use, confidence or trust of any other person or persons, * * * that in every such case, all and every such person and persons, * * * shall from henceforth stand and be seised, deemed and adjudged in lawful seisin, * * * of and in such like estates as they had or shall have in use, trust or confidence * * *. " Thus if an estate in fee were transferred to A and his heirs, to the use of B and his heirs, A stood seized of an estate in fee, to the use of B and his heirs, and B became at once seized of a fee by opera- tion of the statute. The statute only applied where one was "seized" of land to the use of another. Hence the statute only operated when a use was raised of a freehold, since only of a freehold was one seized. Thus, if A had a term for years, and assigned it to B, for the use of C, the statute had no operation.^^ So long, how- ever, as the estate held to the use of another was an alienable freehold it was not necessary that it be a freehold of which there was actual seisin. Thus, a vested remainderman, or a re- versioner after a freehold, had no actual seisin ^^ and yet such reversions and remainders could be transferred to uses and the statute operated.!* rpjiis ^ay fairly have rested upon the terms of the statute which refers to persons standing seized of "rents, services, reversions, remainders," to the use of another. But 11 27 Hen. VIII. e. 10 (1536) ; Cases on Prop., 1st ed. 524. Never- 1 Gray 's Cases on Prop., 2nd ed. theless, if the same rent charge were 372. granted to A and his heirs to the 12 The statute does not execute a use of B and his heirs, B was in use of personalty; Smith v. Smith, actual possession or seisin of the 254 111. 488. rent at once by the Statute of Uses. 13 Po«t, § 30. Heelis v. Blain (1864), 18 C. B. N. " Saunders on Uses, 5th ed. 106 ; S. 90 ; 1 Gray 's Cases on Property, 1 Gray's Cases on Prop., 2nd ed. 2nd ed. 404. If before the Statute 397. So if a rent charge is granted of Uses would execute the use to to A and his heirs, A was in by the B, A must have had an actual sei- common law and had no possession sin, B could have had no actual pos- or seisin of the rent till the first session or seisin by way of use till payment was made. Orme's Case A was seized or possessed, according (1872) L. B. 8 C. P. 281; 1 Gray's to the common law. lit is, there- 46 Oh. II] , STATUTE OF USES [§55 no use could be raised by tbe attempted transfer of an in- alienable future interfest, such as a contingent remainder. ^^ TITLE III. USES AFTER THE STATUTE. Topic 1. Uses Raised on Transmutation of Possession. § 54. Defined: This rather formidable phraseology con- tains a simple idea. Uses are raised upon transmutation of pos- session when there is a transfer of the seisin, according to the requirements of the feudal law, to A, with a use raised in favor of another — let us say, B. The phrase "transmutation of pos- session" means merely that there has been a transfer of the seisin according to the requirements of the feudal land law. When such a transfer is made to A and his heirs, and a use is raised in any way in favor of B, we have a use raised on trans- mutation of possession. §55. Transmutation of possession and an express declara- tion of the use: Assuming then that there is a transfer of seisin according to the requirements of the feudal land law to A and his heirs, what are the .different ways in which a use may be raised in favor of another ? The easiest method of raising the use is by an express declaration of it. Thus, if upon the con- veyance to A and his heirs, a use be expressly declared in favor of B and his heirs, the use in fee is raised in B which the statute executes, and B becomes seized in fee simple.i^ Until the Stat- ute of Frauds there was no, requirement that this use should be evidenced by a writing. It could be declared orally upon the making of livery of seisin to A. But since the Statute of Frauds,^'^ the declaration must be evidenced by some writing signed by the party declaring the use. fore, plain that the statute executes i8 Broughton v. Langley, 2 Salk. all uses of freeholds which are alien- 679 (1703); 1 Gray's Ca^es on able, whether there is any actual Prop., 2nd ed. 377. standing seized to uses or not. i' 29 Charles II. c. 3, § 7 (1676). 15 Saunders on Uses, 5th ed. 106 ; 1 Gray's Cases on Prop., 2nd ed. 397. 47 § 56] INTRODUCTION TO THE LAW OP REAL PROPERTY TCh. II § 56. Transmutation of possession and the payment of a consideration: If, upon the feoffment to A and his heirs, the consideration were paid by B, it was said that a use was raised in favor of B. After the Statute of Uses, however, the statute did not execute any use in favor of B, so that B would have the legal estate. When B's interest was enforced by the courts, it seems to have been as a trust or a use, which the statute did not execute, and not as a use which it did execute. Tpday it is believed to be almost universally the fact that the person pay- ing the consideration, and taking title in the name of another, has no standing to claim the legal title. In New Hampshire, however, the court saw the logic of the position which gave B, the party paying the consideration, the legal title, because he had a use before the Statute of Uses and after the Statute of Uses that use must have been executed.^^ § 57. Transmutation of possession, declaration of the use by one and payment of the consideration by another: Sup- pose, upon a feoffment to A and his heirs, there is a use de- clared in favor of B and his heirs, but as a matter of fact C pays the. consideration. Here there is a conflict between the declara- tion of the use and the payment of the consideration. Assuming that a use is raised by the payment of a consideration alone yet where the consideration is paid by one, and there is a declaration of use for another, the declaration of the use prevails over the payment of the consideration and the use will be in favor of B in the case put.^^ § 58. Resulting uses: There might be a resulting use, or use by operation of law, without any declaration of use or pay- ment of any consideration. Thus, where there was a feoffment to A and his heirs for the use of B for life, there would be a resulting use of reversion on partial use in favor of the feoffor?^ So, where there was a feoffment to A and his heirs, but no con- sideration was paid by A ©r any one else, and no declaration of the use, and no evidence indicating that A was intended 18 Hutehins i). Heywood, 50 N. H. 20 Leake, Digest of Land Law, 491; Osgood 1-. Eaton, 62 N. H. 512; 107, 108; 1 Gray's Cases on Prop., ^ Fellows V. Ripley, 69 N. H. 410. 2nd ed. 381, 382. m Same 's Case, 2 Roll. Ab. 791 (1609); 1 Oray's Cases on Prop., 2nd. ed. 376. 48 Ch. II] STATUTE OP USES [§ 58 to have the beneficial ownership, there was a resulting use of the fee in favor of the feoffor. There was, in short, an inference that the feoffor intended a secret use for himself. No doubt this inference was justified prior to the Statute of Uses. It was then no doubt extremely common to make feoffments upon secret resulting uses for the feoffor. But it has been suggested that at the present day no such inference ought to be made. , It was held as late as 1756 in England that there 'would be a resulting use to the conusor of a fine.^i There is no resulting use, however, where upon a feoffment to A a use is declared to A, or A pays the consideration. Upon such a transaction , A did not take because the use was declared to him, or because he paid the consideration. He took by force of the common- law conveyance. The rule was that where he could take the legal title by the common law, he did so and did not take it by the Statute of Uses. The declaration of the use in favor of A, or the payment of a consideration by A, was in that case merely rebutted the resulting use. A consideration paid by A, how- ever slight, was sufficient by itself to rebut any possible re- sulting use. Thus, where A was the owner in fee, subject to a term for years, and, by release, granted the reversion to the tenant for years, without any declaration of the use, or any payment of consideration, the resulting use was held to be re- butted by the fact that the releasee, the tenant for years, paid a consideration bx the extinguishment of the lease.^^ go where a feoffment was made to A for life, or to A in tail, or where A was given a term for years, the tenure created between A and the feoffor, rebutted any resulting use of the estate actually attempted to be created.^^ Where a feoffment was made to A and his heirs for the use of the feoffor for lifC) the resulting use of reversion on partial \ use was to A, for, if it had been to the feoffor, then the whole \ transaction would have resulted in the feoffor's having the fee } as if he had made no conveyance.^* On the other hand, if a 21 Armstrong v. Wholesey, 2 Wils. 23 Leake, Digest of Land Law, 19; 1 Gray's Cases on Prop., 2nd 107, 108; 1 Gray's Cases on Prop., :■ ed. 378. -■ 2nd ed. 382. 22 Shortridge v. Lamplugh, 2 Salk. 24 Dyer, 111b, in marg. ; Leake, 678; 1 Gray's Cases on Prop., 2nd Digest of Land Law, 107, 108; 1 ed. 376. Gray's Cases on Prop., 2nd ed. 375. Kales Fut. Int. — 4 ' 49 '' § 59] INTEODUCTION TO THE LAW OF REAL PKOPERTT [CH. II feoffment were made to A and his heirs for the use of the feoffor in tail, the resulting use of reversion on partial use was in favor of the feoffor, because it was proper and even customary for one to have an estate tail and a reversion or remainder in fee to himself afterwards. ^^ Finally, it should be noted that all resulting uses are in f ee.^^ Thus if X enfeoffs A and his heirs, to the use of B and his heirs, from and after the death of X, the resulting use to X is in fee and not for life. Topic 2. Uses Raised Without Transmutation op Possession. §'59, Defined: Today there is no objection to one who has the legal title to land executing a declaration of trust which turns himself into a trustee for such persons as he may name. So before the Statute of Uses, there was no objection to one seized of land executing a covenant or a contract by which he declared that he stood seized of this land to the use of another. When this was done with certain formalities, about to be men- tioned, a use was raised by the one seized of land, without any transfer whatever of the seisin. The seisin remained where it was and the holder of that seisin simply declared to whose use he held it. After the Statute of Uses this use so declared was executed by the statute and seisin passed at once to the cestui que use. This declaration of the use might become effective in two ways, either by what was known as a "valuable" con- sideration paid, or by a consideration of blood relationship in the person for whom the use was declared. The former was called a "bargain and sale"; the latter, a "covenant to stand seized." § 60. The bargnin and sale and Statute of Enrollments : A bargain sale was merely the declaration by one seized that he held the seisin for the use of another. It was essential to the enforcement of this declaration of use, as a xf^se, that some valu- able consideration be paid to the one declaring the use. The consideration, if valuable, might be ever so slight. Thus, a declaration of use in consideration of the payment of a pepper- corn was an enforceable use before the Statute of Uses. The 25 W. ed. 464, 465; 1 Gray's Cases on 2» 2 Hayeg on Conveyancing, 5th Prop. 2nd ed. 380. 50 Ch. II] STATUTE OF USES [§61 effect of the Statute was naturally to execute the use so raised and by this means confer upon the cestui the legal seisin. This, of course, at once permitted the transfer of the legal title with- out any formality whatever, which was so contrary to the de- sires of those seeking the passage of the Statute of Uses, that the Statute of Enrollments was at once enacted,^'^ providing that bargains and sales of freeholds to be valid must be evi- denced by a writing indented, sealed, and enrolled in one of • the king's courts of record at Westminster. Thus, the possibility of conveying a legal title by bargain and sale without any for- mality whatever, and by parol was apparently avoided. § 61. The Statute of Enrollments avoided by the "lease and release": So great was the desire of the English landowner to preserve the secrecy in designating the beneficial interests of the land which had been enjoyed before the Statute of Uses, that the ingenuity of conveyancers was taxed to the utmost to devise a means of avoiding the enrollment in the public records required by the Statute of Enrollments. A loophole in the statute was found by reason of the fact that it applied only to bargains and sales of "freeholds." It, therefore, followed that it did not apply to the bargain and sale of a term for years. It followed then, that one seized in fee coiild orally, upon a valu- able consideration, however slight, declare himself seized to the use of A for a term of years. The statute at once executed the use and A had the term, and the bargainor had the reve^ sion. Under these circumstances the bargainor could make a common law conveyance by way of release to A, and by this means the fee would be transferred. No enrollment was re- quired for the release. By the simple process then of first making a lease for one year to A, and then making a release of the fee to A, A was in possession of the fee without any common law formality of livery of seisin, or any formality of enrollment under the Statute of Enrollments. The secrecy 'of the conveyance was preserved. At common law the lease, to have been wholly effective, re- quired an entry by the lessee, and the conveyance by way of release would have been ineffective at common law unless the lessee had actually entered. But the force of the Statute of 27 27 Hen. VIII., c. 16 (1536) ; 1 Gray's Cases on Prop., 2nd ed. 382. 51 § 62] INTRODUCTION TO THE LAW OP KEAL PEOPBETY [Ch. II Uses was to give to the lessee the legal title of the term with- out entry, so that the release to the lessee was sufficient by the common law, although the lessee had not entered.^* That enabled the lease and release, to be drawn in a solicitor's office in London, many miles away from the land intended to be con- veyed. Not even the formality of the tenant's entering upon possession before the release was made, was necessary to the effectiveness of the lease and release. It became customary to draw the lease and release as one instrument, the first part being a lease for one year, and the second part, the release. Both were executed at the same time. These two instruments taken together were known as a single' conveyance by way of "lease and release. ' ' ^^ § 62. No particular form of words is necessary to make a bargain ajid sale: It is not necessary that the one seized of land should in terms declare that he stands seized, or contract or covenant that he stands seized, to the use of another. That is, in fact, what he does; but, if he merely purports to convey to another, and that other pays the proper consideration, it is as effective as if the one seized had covenanted or declared that he stood seized to the use of the one paying the consideration.^" Thus, if the one seized executes an instrument in which he pur- ports to convey to A and his heirs, in consideration of £5 paid by A, the instrument is sufficient in form for a bargain and sale. . If signed, sealed, and enrolled according to ,the Statute of Enrollments, it is a valid bargain and sale. If the instru- ment is under seal and the consideration is recited to have been paid, although it is not actually paid, still the presence of the seal upon the instrument prevents the grantor from denying that some consideration was paid. It, therefore, pre- vents him from showing that a state of facts exists which would deprive the instrument of the characteristics of a bargain and sale. It must, therefore, as between the parties, be taken as sufficient in form for a bargain and sale. That is the reason 28Lutwich V. Mitton, Cro. Jac. 13th ed. 187-189; 1 Gray's Cases on 604 (1620); Gray's Cases on Prop., Proi*., 2nd ed. 395. 2nd ed. 388; Barker v. Keete, so Edward Fox's Case, 8 Co. Freem. 249 (1678); 1 Gray's Cases 93b (1610); 1 Gray's Cases on on Prop., 2nd ed. 389. Prop., 1st ed. 489. 29 Williams on Eeal Property, 52 CH. II] STATUTE OF USES [§ 64 for the continued recital at the present day of the payment of a consideration which, in many cases, is not actually paid, and ' is known by both parties not to have been paid. § 63. Covenants to stand seized: The special characteristic of the bargain and sale is that it is founded upon a valuable consideration paid to the bargainor. If, however, the use, in an instrument under seal, is declared in favor of a blood re-» lative of the bargainor, it is said to be founded upon a good as distinguished from a valuable consideration; and the use is validly created in favor of the blood relative. The technical name given to this declaration of use is a "covenant to stand seized." Thus, if A being seized in fee, purports to convey, by an instrument under seal, to B, his cousin, all the elements are present to' furnish the basis for a valid declaration of a' use and a covenant to stand seized. ^^ The Statute of Enroll- ments has no application. If the blood relationship exist and the instrument is under seal, the form of it is immaterial. It may be in form a direct. conveyance by A to the blood relation.^^ There could, however, be no effective covenant to stand seised of lands afterwards to be acquired and of which there was no seisin at the time of the covenant.^^ § 64. Summary: To illustrate the application of the above principles concerning the raising of uses by bargain and sal6, and covenants to stand seized, and the transfer of the legal title by means thereof, under the Statute of Uses, consider the following three problems : Suppose A, in consideration of one dollar, conveys to B and his heirs. The instrument is signed but not under seal. Is it a good bargain and sale? Apart from the Statute of Enroll- ments it is. It complies with the Statute of Frauds because it is in writing, and signed by A. If it fails as a bargain and sale it is because the Statute of Enrollments is applicable. If the question arises in this country it may be argued that the Statute of Enrollments has no application. The fact -that the w Sharington v. Strotton, Plowd. (1757); 1 Gray's Cases on Prop., 298 (1565); 1 Gray's Cases on 2nd ed. 391. Prop., 2nd ed. 384; Callard r. Cal- ss Yelverton v. Yelverton, 1 Cro,, lard, Moore, 687 (1593); 1 Gray's El. 401 (1594); 1 Gray's Cases on Cases on Prop., 2nd ed. 386. Prop., 2nd ed. 387. 82 Eoe V. Tranmcr, 2 Wils. 75 53 § 65] INTRODUCTION TO THE LAW OP REAL PROPERTY [Ch. II Statute of Enrollments requires enrollment in one of the king's courts of record at Westminster, or else in the county where the land lies, obviously makes it inapplicable to the colonies, and consequently it has not come down to us through our colonial governments. If the Statute of Enrollments does not apply, so far as enrolling is concerned, it might fairly be argued that it did not apply at all because it should not be taken to apply in part only.^* Hence, in this country no seal is necessary to the validity of a bargain and sale. Some courts, however, in this country are found holding blindly that the legal title can- not be conveyed without an instrument under seal.^^ The mis- conception has arisen by following the dogmatic statement of Blackstone that to every conveyance of land in England with- out livery of seizin a seal is necessary. 3* That statement is perfectly sound for England, for there the Statute of Enroll- ments applied and required the seal. Suppose A, in consideration of $...., conveys to B and his heirs. A signs and the instrument is under seal. As some- times happens the blank for the consideration is not filled in, and no consideration is, in fact, paid. The instrument is not good as a bargain and sale because no consideration was paid or recited. If 5 is a blood relative, the conveyance is good as a covenant to stand seized. If A conveys to B with the amount of the consideration left blank, and 5 is a stranger and no consideration is in fact paid, then even though it be under seal it fails both as a bargain and sale and as a covenant to stand seized. ^^ Topic 3. Operation of the Statute — ^Uses Which the Statute Did Not Execute. § 65. Operation of the Statute: The Statute of Uses oper- ated to place the legal seisin and title at once in the cestui que 3*Tiedemen, Eeal Property, 3rd 32; Irwin v. Powell, 188 111. 107; ed., §fe42. Ashelford v. Willis, 194 111. 492; 35 Jackson v. Wood, 12 Johns. (N. Wilson v. Kruse, 270 111. 298, 302. Y.) 73 (1815); 3 Gray's Cases on See also, Maupin on Marketable Prop., lat ed. 233 ; Watts v. Parker, Title to Eeal Estate, 2nd ed., § 22. 27 111. 224; Barger v. Hobbs, 67 111. 86 2 Bl. Com. 297, 312. 592; Barrett v. Hinckley, 124 111. st it would seem that title should 54 CH. II] STATUTE OF USES [§67 Use. It followed that the cestui could bring an action of tres- pass against any stranger for entering, although the cestui had not entered.** The statute also operated to convey the estate or interest designated in the cestui without any common law formality. Thus the use of a term placed the possession of the term in the tenant without entry,*" The use of a reversion or remainder transfered the reversion or remainder without any attornment.*" § 66. Suppose A, seized in tail or for life, were directed to hold to the use of one in fee : It was the law before, the statute that such a use, enforcible in chancery, could not arise out of the seisin of a tenant in tail.*i It followed that after the stat- ute no such use would be executed. The use was void and the feoffee had the estate tail limited to him.*^ If, however, the feoffee to uses were seized of a life estate, the use to another would be executed by the statute, but not for a greater estate than the life estate of the feoffee.** §67. Uses which the statute did not execute: (1) It has already been observed that where there was a feoffment to A and his heirs for the use of A, the statute did not operate. J. was in by the common lavf and the declaration of the use simply rebutted any possible resulting use.** If, however, there was a feoffment to A and his heirs for the use of A, B, and C, all were in by the statute, since they could not be in by the common law.*^ pass in Illinois by virtue of B. S. Prop., 2nd ed. 354. Quaere: Must 1874, oh. 30 sec. 1. But see, Bed- there have been an attornment till mond V. Cass, 226 HI. 120; Catlin the Statute of Anne (ante, §43), Coal Co. V. Lloyd, 180 111. 398 ; 2 in order that the assignee might col- Ill. -Law Bev., 269. leet rentf 38 Anonymous Cro. El. 46 (1582); *i Anonymous, Bro. N. C. by 1 Gray's Cases on Prop., 2nd ed. March, 89; 1 Gray's Cases on 396. But see Lutwich v. Mitton, Prop., 1st ed. 465. Cro. Jao. 604 (1620); 1 Gray's *2 Cooper v. Franklin, Cro. Jac. Cases on Prop., 2nd ed. 388. 400; 1 Gra.y's Cases on Prop., 2nd 39 Lutwich V. Mitton, supra; ed. 411. Compare, Dick v. Bicker, Barker v. Keete, Freem. 249 222 111. 413, 419. tl678); 1 Gray's Cases on Prop., « Bacon on Uses, 47; Gilbert on 2nd ed. 389. Uses, 297; Cruise on Uses, 96; Mere- *o Gilbert on Uses, 73; 1 Gray's dith v. Joans, Cro. Car. 244. Cases On Prop., 2nd ed. 396; Taylor a Ante, § 58; Orme's Case, L. E. V. Vale, Cro. El. 166 (1589); 1 8 C. P. 281 '(1872) ; 1 Gray's Cases Gray's Cases on Prop., 2nd ed. 385; on Prop., list ed. 524. Co. Lit. 309a, b; 1 Gray'? Cases on le Heelis v. Blain',' 18 C. B. N. S. 55 § 67] INTRODUCTION TO THE LAW OF REAL PROPERTY [CH. II (2) Another use which the statute would not execute has al- ready been referred to. Since the statute operated only when one person was seized to the use of another, it followed' that whenever the person holding an estate to the use of another had less than a freehold estate, for instance, a term for years, and was holding that for the use of another, the use was not executed by the statute.*® Although, however, there was no actual seisin in a reversioner or vested remainderman after an estate of free- hold, yet such a reversioner or remainderman could limit the future interest to uses which the statute would execute.*'^ But a contingent remainderman clearly could not do so because he had no alienable interest. (3) The statute would not execute a use on a use. That is to say, if there were a feoffment to A and his heirs to the use of ;B and his heirs to the use of C and his heirs, the statute would execute the first use to B and his heirs, but not the second.** The legal estate, therefore, would be in .B. Suppose A bargains and sells Blackacre to B and his heirs, to the use of C and his heirs. "Who have what leffal estates? The bargain and sale is in fact a declaration by A that he stands seized to the use of the bargainee. A, therefore, stands seized, for a valuable con- sideration, to the use of B and his heirs, to the use of C and his heirs. The first use is in B and the second use is in C, and the statute, therefore, executes only the use in B, and B has the legal estate.*® Suppose a feoffment or release to A and his heirs to the use of A and his heirs to the use of B and his heirs. Is the use of B and his heirs the first use or the second use? It is submitted that it might have been held that since A was in by the common law, and not by the Statute of Uses, the use to B was the first use. It was settled, however, that B '.s use was the second use.®" 90 (1864); 1 Gray's Cases on Ab. 220, pi. 2, 383, note; 1 Gray's Prop., 2nd ed. 404. ^ Cases on Prop., 2nd ed, 411. i»Ante, §53; Symson and Tur- ^9 Tyrrel's Case, Dyer, Pt. II, ner, 1 Eq. Cas. Ab. 220, pi. 1, 383, 155a (1557); 1 Gray's -Cases on note; 1 Gray's Cases on Prop., 2nd Prop., 2nd ed. 410. ed. 411 ; Bacon on Uses, 42 ; 1 5o Doe v. Passingham, 6 B. & C. Gray's Cases on Prop., 2nd ed. 411, 305; 1 Gray's Cases on Prop., 2nd note 2. .. ed. 412; Watkins v. Speeht, 7 Coldw. ' *■! Ante, §53. ' (Tenn.) 585. eeversions and ri;maindebs — plater history [§ 102 and to defeat the intention of the testator that those who after- wards attained twenty-one should participate." These dicta rather induce the conclusion that while direct authority may be lacking, yet conveyancers and conveyancing counsel in England have for a long time acted upon the assump- tion that the above statement of the law and its application were correct. Perhaps it is now too late to overturn the con- clusion stated, so that in England it must be accepted that the feudal rule of destructibility applies to Y's interest and defeats it. Yet the precarious position of such a conclusion at once appears when we have come to observe the result reached by Sir George Jessel, M. R., in Lechmere and Lloyd's case and the favor with which that case was received.*^ § 102. Where the limitations were to A for life, remainder to such children of A as "either before or after" A's death, reach twenty-one and where at the time of A's death, X, one of the children of A, has reached twenty-one and another, Y, has not: Here we have precisely the same case as that dealt with in the preceding section. The fact that the remainder is limited to such children as ' ' either before or after the death of A" attained twenty-one makes no difference in the expressed meaning. It does not make a gift to two separate classes on different events. The gift is still to the same class on the same event. Precautionary words have merely been added to make it plain that the children are to take no matter when the event occurs with reference to the termination of the preceding life estatel Hall, V. C, in Brackenbury v. Gibbons,*^ evidently observ- ing that the case now presented was exactly the same as that dealt with in the preceding section, and believiiig the law, to be as there stated, held the interest of Y to be destroyed. Fjve years later precisely similar limitations came before Jessel, M. B., in Lechmere and Lloyd's case.** He said the rule of destructibility was "harsh. Why should I extend it?" He clearly felt that he had a case which he could deal with in the freest manner on principle and that on principle the rule of destructibility should be held down to the precise cases where i'^Post, §§102, 103. Cases on Prop., 2nd ed. 69; Kales' *3 [1876] 2 Ch. D. 417. Cases on Future Interests, 126. *4 [1881] 18 Ch. D. 524; 5 Gray^s 95 § 102] INTKODUCTION TO THE LAW OF REAL PROPERTY [CH. IV its applicability had been determined by authority. The con- tinuance of the doctrine of destructibility after springing and shifting future interests became valid and indestructible was illo- gical and anomalous. Jessel was prepared on this round to refuse the application of the rule of destructibility in any case where authority did not require it. In the case where the remainder had already vested in one member of the class, the feudal rule requiring the vesting of the remainder before the termination of the life estate was certainly satisfied, and it was clear that the interests of the other members of the class were bound to take effect as shifting executory interests divesting a previously vested remainder. Authority, so far as judicial decisions were concerned, was apparently entirely lacking to require an appli- cation of the, rule of destructibility to Y's interest. It may be assumed that the practice of conveyancers had nevet dealt extensively with the ease where the remainder was limited to the children "who either before or after the termination of A's life estate attained twenty-one. " Jessel, therefore, very properly insisted that the fule of destructibility should not be applied. Jessel should have admitted that the logic of his conclusion would have made Y's interest indestructible where the remainder was "to such children of A as reached twenty-one," and that if Y's interest in such a case was to be regarded as still de- structible it was because a long continued practice of con- veyancers required that it should be so. The weakness of Jessel's opinion is that instead of doing this he put forward a purely subtle and scholastic distinction without a difference between the case where the remainder was to "such children of A as reached twenty-one" and where the remaindei; was to "such children of A as either iefore or after A's death reached twenty-one." In Miles v. Jarvis *^ the limitations were to A for life, re- mainder to the ch,ildren of B "living at the time of A's death or thereafter to be born." At A's death some children were in esse and the remainder had vested in them. Hence, the inde- structibility of the gift to those afterwards to be born was clear upon the reasoning upon which Lechmere and Lloyd's case is to be supported. In In re Bourne *^ the limitations were to A 15 24 Ch. D. 633. 46 56 L. T. Rep. (N. S.) 388. 96 Ch. IV] REVERSIONS AND REMAINDERS — LATER HISTORY [§ 103 for life and then to such children of A as should attain twenty- one. The mystical words "before or after A's death" were not present. There wasi merely a clause that trustees were to take the rents and issues during the minority of any child after the life tenant's death upon trust for the child, thus shoeing that children who did not reach twenty-one till after the life tenant's death were expected, and expressly intended to take. Two children reached twenty-one before the life tenant died and Kay, J., held that the gift took effect in the others as an. executory devise. This, it is submitted, presses Lechmere and Lloyd's case far toward its logical conclusion that in all cases where the limitations are to A for life, remainder to such children of A as reach twenty-one, without the words "either before or after A's death" the interest of Y is inde- structible. § 103. The Massachusetts Supreme Court has extended the rule of In re Lechmere and Lloyd logically to the case where the limitations are to A for life, remainder to such children of A as reach twenty-one, and where one child has reached twen- ty-one before the life tenant's death: This is the holding in the recent case of Simonds v. Simonds." The court seems very clearly to have perceived that where the remainder vested in two children before the life estate terminated, the interest' of the other children took effect only as a shifting use and as such was not subject to any rule of destructibility. The court very properly relied upon Lechmere and Lloyd's case and, in Massa- chusetts no doubt, very properly threw out any distinction between the case, of a remainder to the children "who reached twenty-one" and the children who "either before or after the life tenant's death" reached twenty-one. There was, in all probability, no conveyancers' practice in Massachusetts which would require the rule of destructibility to be applied in one of these cases any more than in the other. It is believed that in other American jurisdictions the result reached in Simonds V. Simonds ought to be and will be followed.*^ " 199 Mass. 552 ; Kales ' Cases on then to A 's children, and before the Future Interests, 148. termination of A's life estate by *8 Observe, however, that in Arch- merger two children were born, the er V. Jacobs, 125 la. 467, where the court held that the interest of the limitations were to A for life and unborn children was destroyed. Kale* Fut. Int. — 7 97 § 104] INTEODUCTION TO THE LAW OF REAL PEQPERTY [CH. IV § 104. Where the remainder is to a class, the opers^tion of the rule of destructibility must be distinguished from the operation of rules of construction for the determination of the class: Where the limitations are to A for life, remainder to the children of B who reach twenty-oney if the rule of de- structibility be in force and applicable, only such children will take as reach twenty-one before the termination of the life estate. If that rule is not in force or is inapplicable then the question arises as to how many are included in the class. This is a question of construction. If the usual rule as to personal property be followed the class will close when the life tenant dies or the, first child reaches twenty-one, whichever last hap- pens.*® But if this be regarded as a rule which cuts down the natural and usual meaning because of the inconvenience of having new interests arise in personal property after it has been distributed, then where real estate is involved and there is not the same inconvenience, the natural and usual meaning of the words might be taken and the class enlarged to include all the children born at any time. This was done in Blackman V. Fysh 50 where the remainder was to children born or to be born who should live to attain twenty-one. Now suppose the limitations are to A for life, remainder to the children of B, and B has a child or children at the date of the will, at the testator's death and at the death of the life tenant, and others are born afterwards. Does the class close at A's death? If the rule of destructibility is in force and applicable this need not be decided, because that rule will permit only those children who are in esse at the testator's death to take,5i If the rule of destructibility be not in force or not Lechmere and Lloyd's Case and its 388, and Simonds i;. Simonds, 199 logical extension was not observed. Mass. 552, only needed to go this Perhaps the result reached nlight far. have gone on , the ground that by a «» [1892] 3 Ch. 209. rule of construction concerning the 5i in Mogg v. Mogg, 1 Mer. 654 determination of classes the class (Kales' Cases on Future Interests, closed when the life estate termi- 232) it is impossible to say whether nated and the remainder vested in the court went upon the applicatior possession. of the rule of destructibilty or a <9 Theobald, "Wills, 7th ed. 310. rule of construction as to the deter In re Bobson, [1916] 1 Oh. 116, In mination of the class. The learned re Bourne, 56 L. T. Eep. (N. S.) author in 3 Preston on Conveyanc- 98 CH. I"V ] REVERSIONS AND REMAINDERS LATER HISTORY [§ 104 applicable, then the question of construction arises as to the determination of the class, and the reasoning already indicated is applicable. If personal property were involved the class would close at the life tenant's death.^^ jf tj^^t is in accordance with the fair and primary meaning of the language used then it should apply equally where real estate is invdlved. If, how- ever, the natural and primary meaning would include all the children of B born at any time, but that meaning is cut down because of the inconvenience of holding up a distribution of personalty until all possible members of the class are ascer- tained, then such reason of convenience would not have the same application where real estate was involved and all the children born at any time might be let in to share in the re- mainder. Now suppose the limitations are to A for life, remainder to the children of JB|, but B has no child when the will was made or at the testator's death or at the death of the life tenant, can children born afterwards take? If the rule of destructibility is in force and applicable they cannot. If that rule is not in force or is not applicable, then if personalty were involved all the children born at any time could take.^^ In Hayward v. Spaulding s* the same rule was applied to a remainder in real estate which was not destructible. The rules for the determination of classes are rules of con- struction merely and yield at once to any expressed intention inconsistent with them. Where, for instance, the remainder, as in Lechmere and Lloyd's case,^^ was limited to the children of the life tenant who should "either before or after the life tenant's death" attain twenty-one, the words quoted were ob- viously inserted to overcome any supposed rule of construc- tion that, where the remainder was to children who reached twenty-one, only those were intended to take who had reached twenty-one when the life estate terminated. The phrase ' ' either ing,_ 555, evidently thought that the 52 Theobald, Wills, 7th ed. 306, rule of destructibility applied. In 307. Archer v. Jacobs, 125 la. 467, the ss Id. 307. children born after the termination s* 75 N. H. 92. of the life estate by merger were ss is Ch. D. 524; 5 Gray's Cases excluded on the ground of the ap- on Prop., 2nd ed. 69; Kales' Gases plication of the rule of destructibil- on Future Interests, 126. ity. 99 § 105] INTRODUCTION TO THE LAW OF REAL PROPERTY {CH. IV before or after the life tenant's death" did not, therefore, change the character of the remainder or the meaning to be given to the language by which it was created. It did not make distinct gifts to two different classes. In Miles v. Jarvis ^* the limitations were to A for life and then to the children of B "who survived A or were born afterwards." The phrase "who survived A or were born afterwards" was plainly put in to overcome any rule of construction that only such children would take as were born prior to the death of the life tenant. The extent of the class was made clear. Then the question of the destructibility (by a rule of law defeating intent) of the in- terest of those not born until after A's death, arose. § 105. As to the appUcation of the rule of destructibility where the future interest is limited on such events that it may take effect either as a remainder or as a shifting interest cut- ting short a prior vested remainder in fee: In all the cases where the rule of destructibility of contingent remainders has been applied, the future interest which was destroyed has been so limited that, if no rule of destructibility existed and the event happened after the termination of the preceding estate of freehold, there would be a gap in the estates expressly limited, and the future interest, if it took effect, would have cut short a reversion in fee in possession. It should be ob^ served that precisely the same situation may be presented except that the future interest, if it took effect, would cut short a vested remainder expressly limited which might have come into possession. Thus, suppose the limitations are to A for life, remainder to A's children (now unborn), but if A leaves no children who shall reach twenty-one then to B in fee. Here B's interest may take effect as a remainder. This occurs if A dies leaving no children. The possibility that B's interest may take effect as a remainder continues as long as A has no children. On the other hand, the moment a child is born to A it takes a vested remainder and B's interest then takes effect, if at all, as a shifting future interest. If it is a corollary of the rule' of destructibility, or a part of it, or the rule itself, that future interests which may by possibility take effect as remainders, must do so or fail entirely and cannot be turned into executory s6 24 Cai. D. 633. 100 Ch. IV] REVERSIONS AND REMAINDBBS — LATER BlSfORY [§103 interests by events happening after the creation of the limita- tions, then B's interest fails as soon as a child is born to A.^'' It cannot be doubted that under the strictly feudal land law B's interest would be destroyed on the birth of a child to A. It is equally clear that when springing and shifting uses and devises became valid and indestructible the application of such a rule of destructibility was illogical and incongruous. It continued only because it had been established. But Lechmere and Lloyd's case and those following it®^ show that in these days the courts regard themselves as fully authorized to refuse to extend the rule of destructibility beyond the precise cases where its application has become settled, and that any feature ' of the remainder which gives it a novelty sufficient to enable the court to say that its destructibility has never been passed upon is a valid ground for holding that the rule of destructibility shall not be applied to it. The result reached in Doe d. ^vers V. Challis 59 might have gone on the ground that the remainder to B in the case put was subject to the rule of destructibility and could not therefore be void for remoteness. It is significant that the court refused to put its decision on that ground and insisted that the contingencies might be split by operation of law. On the contingency that A had no children B's interest was a contingent remainder and must vest if at all on A's death. In the event that A had children but they died under twenty-two, B's interest was a shifting executory devise and void for remoteness. The testator did not split the contingencies by his words. They were split by the court, by operation of law, because in one event the future interest was a remainder and in the other it was an executory devise. This splitting of the contingencies by operation of law is in fact a refusal to apply the rule of destructibility to B's interest so that it would fail the moment the remainder vested in a child of A. Such, it is submitted, was a proper result for the House of Lords, to reach, and the decision of Jessel, M. R., in Lechmere and Lloyd's case proceeds upon the application of the same principle^ namely, that the rule of destructibility will not in these days 5^ See Gray, Rule Against Perpe- 2nd ed. 582; Kales' Cases on Future tuities, i 338, note 3 ; Doe d. Evera Interests, 1059. v. Challis, 18 Q. B. 224, 231; 7 H. ^s Ante, §102. L. C. 531; 5 Gray's Cases on Prop., 59 18 Q. B. 224; 7 H. L. C. 531. 101 § 106] INTRODUCTION TO- THE LAW OF REAL PROPERTY [CH. IV \ y be permitted to apply to any remainders presenting distinctive features unless authority or long practice requires it. § 106. Abolition of the rule of destructibility by legislation: In the ab^nee of any legislation abolishing the rule of de- structibility even American courts, where the survival of feudal principles might be regarded as least likely to occur, have regularly recognized and applied the rule of destructibility of contingent remainders.^** During the nineteenth century statutes both in England and the United States havd under- taken to abolish wholly or in part the rule of destructibility. The Real Property Act of 1845 *i provided that any con- tingent remainder existing after 1844 should be capable of taking effect "notwithstanding the determination by forfeiture, surrender, or merger, of any preceding estate of freehold, in the same manner in all respects, as if such determination had «» 1st : Cases where tlie destruction of GOritingent remainders vms held to have occurred: District of Co- lumbia: Craig V. Warner, 16 D. C. (5 Maek.) 460. Mississippi: Irvine V. Newlin, 63 Miss. 192. South Carolina: Eedfern v. Middleton, Eice L. (S. C.) 459;,Faber v. Po- lice, 10 • S. 0. 376 ; MeElwee v. Wheeler, 10 8. C. 392. Pennsylva- nia: Lyle V. Eichards, 9 Serg. & B. (Pa.) 322; Abbott v. Jenkins, 10 Serg. & E. (Pa.) 296; Stump v. Findlay, 2 Eawle.(Pa.) 168; Ben- nett V. Morris, 5 Eawle (Pa.) 9, 15; Waddell v. Eattew, 5 Eawle (Pa.) 231. Dunwoodie v. Eeed, 3 Serg. & E. (Pa.) 435, is only contra to the extent of maintaining that a common recovery by the holder of the particular estate does not bar the contingent remainder. Upon this point it vfas clearly overruled. Illi- nois: Bond^v. Moorej 236 111. 576, Kales' Cases on Future Interests, 144; Belding v. Parsons, 258 111. 422; Barr v. Gardner, 259 111. 256; Messer v. Baldwin, 262 111. 48; Smith V. Chester, 272 lU. 428; Blake- ley V. Mansfield, 274 111. 133; Ben- son V. Tanner, 276 I|J. 594. Iowa: Archer v. Jacobs, l25 la. 467. 2nd: Cases containing dicta rec- ognizing the doctrine by which con- tingent remainders may he de- stroyed: Kentucky: Edwards v. Woolf oik's Adm'r, 56 Ky. (17 B. Mon.) 376. New Hampshire: Den- nett V. Dennett, 40 N. H. 498. Illi- nois: Madison v. Larmon, 170 111. 65. See also Young v. HarkTeroad, 166 111. 318, and Spencer v. Spruell, 196 111. 119. Haywood v. Spaulding, 75 N. H. 92 (Kales' Cases on Future Inter- ests, 152) refused to apply the rule, but only by the subterfuge of ap- pointing trustees to preserve the contingent remainder. Simonds v. Simonds, 199 Mass. 552 (Kales' Cases on Future Inter- ests, 148) as already explained, mte, § 103, is a correct application of the reasoning upoii which Ije(jhmere and Lloyd's Case is to be sustained and a logical deduction from the result reached in that case. 81 8-9 Vic. c. 106, see. 8. 102 CH. IV] REVERSIONS AND REMAINDERS LATER HISTORY [ § 106 not happened." This act, however, failed to provide for the case where the preceding estate of freehold terminated from causes other than those mentioned. A contingent remainder was, therefore, still liable to be defeated by the death of the life tenant before the contingehcy had happened. In 1877 another contingent remainder act ^^ ^as passed which applied only to contingent remainders created by an instrument executed after August 2, 1877, and provided that every contingent remainder "which would have been valid as a springing or shifting use or executory devise or other limitation had it not had a suffi- cient estate to support it as a contingent remainder, shall, in the event of' a particular estate determining before the con- tingent remainder vests be capable of taking effect in all re- spects as if the contingent remainder had originally been created as a springing or shifting use or executory devise or other executory limitation." A doubt has long existed, and still re- mains, whether the act of 1877 applied where the remainder was to the children of a life tenant who reached twenty-one and one child had reached twenty-one before the terinination of a life estate and others were in esse who might do so after- wards.** It has been suggested** that a simple and compre- hensive form of contingent remainders act might be worded as follows: "No remainder or other interest shall be defeated by the determination of the precedent, estate or interest prior to the happening of the event or contingency on which the re- mainder or expectant interest is limited to take effect." This, however, fails to cover the case mentioned, ante § 105. To do so we might add to it the following : ' ' and any rule which requires a future interest which by possibility may take effect as a re- mainder to do so or fail entirely is hereby abolished."*^ 82 40-41 Vic. c. 33. ders Act are given in Washburn on 63 Williams on Seisin, 205; Jar- Eeal Property (6th ed.) sec. 1600, man on WiUs (6th ed. by Sweet), note, as follows: Ala., Ga., Ind., 1445; Vaizey, Law of Settlements, Ry., Mich., Minii., Mont., N.^Y., N. 1164-, 1165. The point was left un- Dak., Va., W. Va., Wis. To this decided in In re Bobson, [1916] 1 should now be added Massachusetts. Ch. 116. ~ In some states the act which is 84 Kales ' Cases on Future Inter- now in force, or has existed, has a ests, 155. partial effect only, like the English 85 The only states which seem to Act of 1845. Maine: Eev. St. 1871, have a complete Contingent Bemain- ch. 73, sec. 5. Massachusetts: Eev. 103 § 106] INTRODUCTION TO THE LAW OF REAL PROPERTY [Ch. IV Laws 1902, p.- 1268, sec. 8. The acts in both these states antedate the English Contingent Bemainders Act of 1845. The Massachusetts act ap- pears in Bev, St. 1836, eh. 59, see. 7 ; the Maine act in Rev. St. 1841, ch. 91, sec. 10. In South Carolina (1 Bev. St. 1893, ch. 66; 1 Code of Laws 1902, sec. 2465) the act goes no farther than to provide that ~ a contingent remainder shall not be "defeated by feoffment with livery of seisin." In Texas the statute goes no far- ther than to provide that the re- mainder shall not be defeated by the alienation of the particular estate, either by deed or wUl, or by the union of such particular estate with the inheritance by purchase or de- scent. Battis' Ann. Civ. St. 1897, see. 626. 104 CHAPTER V. ESTATES AND FUTURE INTERESTS IN PERSONAL PROPERTY. § 107. Chattels personal — English law: Prior to the be- ginning of the seventeenth century it is probable that no in- terest, other than an absolute and indefeasible one, could be created in a chattel personal. In the seventeenth century the distinction was taken that if the use of a chattel were given by will to A for life, the property or absolute interest might be limited to B after A's death.^ By the end of the seventeenth century it became settled that a bequest to A for life ajid then to B absolutely, gave B a valid future interest at law^-^By a deed or act of transfer inter vivos, no future interest could however be created in a chattel personal in England. This seems to be the law at the present day, though the reason for it is not apparent. The nature of the future interest when it is validly created by will is in some doubt. It is clear that it is a valid legal interest recognized and protected by courts of law as distin- guished from courts of equityU^ But is it like a remainder after a limited estate for life, or is the interest in the life tenant an absolute interest in the property, which comes to an end only when A^ life terminates? If the latter view be tak§n, then the gift to B is a shifting interest. The English cases seem to adopt this view.* 1 Anonymous, March, 106, pi. 183 _kOT^2 "Term K. 376 (1788) ; 5 (1641); 5 Gray's Cases on Prop., Gray's Cases on Prop., 2nd ed. 123; 2nd ed. 118; Kales '/Cases on Future Kales' Cases on Future Interests, Interests, 344; Vaehel v. Vaehel, 1 347. Ch. Gas. 129 (1669); Kales' Cases /sTkoare v. Parker, supra. on Future Interests, 345. /3ln re Tritton, 6 Morrell's 2 Hide V. Parrat, 2 Vern. 331 Bankcy. Cas. 250; 5 Gray's Cases (1696); 5 Gray's Cases on Prop., on Prop., 2nd ed. 124; Kales' Cases 2nd ed. 118; Kales' Cases on Fu- on Future Interests, 349. ture Interests, 346; Ho are v. Pa r- 105 § 108] INTRODUCTION TO THE LAW OF REAL PROPERTY. [CH. V § 108. The American cases : In the United States the courts go farther than in England in permitting future in- terests in chattels personal. Except, perhaps, in North Caro- lina,^ the future interest may be created by a transfer inter vivos ^ or by deed ^ as well as by will, and it makes no differ- ence whether the first taker has a lii& estate with a gift over on his death,* or an absolute interest, subject to a gift over to another absolutely upon a specified contingency, as for instance, if the first taker dies without issue him surviving.^ It may be assumed also that the American cases incline to the older view of the English eases, that when the first taker is given only a life estate the first taker has only the use and ' occupancy for life, so that a limited estate is created and the future interest takes effect like a vested remainder in real estate after a life estate, or, if no such future intierest is limited, there will be a reversionary interest to the creator of the life estate. I*' § 109. Chattels real: Prior to the seventeenth century it is probable that future interests in chattels real were not at- tempted or were invalid. But early in the seventeenth century it was held that when a leasehold interest was limited by will to A for life, and then to B, B's interest was valia,iV A little later, it, was held that if the future interest limited by will in chatty real were contingent, as to A's unborn son, it was validj^^ In 1618, however, it was held that a gift over of a term to B, if the first taker (to whom an absolute interest in the term was expressly limited) died without issue him sur- 5 Gray, Rule Against Perpetui- C.) 161 (1802); 5 Gray's Cases on ties, §§92-94. - Prop., 2nd ed. 125; Kales' Cases on >6 McCall V. Lee, 120 111. 261 ; Future Interests, 350 ; Boyd v. Stra- Brummet v. Barber, 2 Hill 543 (8. han, 36 111. 355. Contra, State v. C.) ; 5 Gray's Cases on Prop., 2nd Savin, 4> Harr. (Del.) 56, note; ed. 129; Kales' Cases on Future In- MerEel's Appeal, 109 Pa. 235. terests, 354. (^ii.Manning 's Case, 8 Co. 94b 'Duke V. Dyches, 2 Strob. Eq. (1609); 5 Gray's Cases on Prop., (S. C.) 353, note; 5 Gray's Cases 2nd ed. 112; Kales' Cases on Fu- on Prop., 2nd ed. 126; Kales' ture Interests, 316. Cases on Future Interests, 351. i?_!potton v. Heath, 1 -Boli. Abr. 8 Duke -w. Dyehes, «Mpra. 612, pi. 3 (1638); 5 Gray's Cases 9Brummet'v. Bairber, supra. on Prop., 2nd ed. 117; Kales' Cases 10 Anonymous, 2 Hay ward (3 N. on Future Interests, 324. 106 Oh. V] FUTURE INTERESTS IN PERSONAL PROPERTY [§ 109 viving, was void.^^ Thus the English judges started to draw a distinction between future interests in chattels real after a life interes t expressly liaiite d and after an absolute interest expressly limited. But this was put an end \o in the Duke of Norfolk's Case ^* in 1682. Thereafter future interests in chattels real could be freiely created by will subject only to the rule against remoteness which was first definitely suggested in the Duke of Mortolk's Case." The theory of the English cases seems to have been that the first taker, even when given only a life estate,, had an absolute , interest in the chattel real, subject to a shiftip ff g^ft. nvpr nj\nn his death, which was like a sh ifting e-gppntnry Hpifigp nf rAal gstat e.^" Th^ theory was adhered to even when. a life estate in the chattel real was limited to A, and nothing further was said.i^ The position was then taken th at A's absolute intere st came to an end at A's deat h, and thereupon there was a re- ve rter, like a reverter ot real estate whenTa determinable, fee came to an end. The logical basis for the theory that A had an absolute interest in a chattel real where it was limited to him only for life, rested upon the feudal notion that every life estate was in law longer than any term for years. Hence a life estate in a term for years must, always include the entire term. • '^ The Engl ish law apparently do ^s not. pRT-mit. an y future in - terest in a chattel real to be created by deed, or of.her mn^p nf transfe r intc) vivos ' ^^* — Pl'ecl!;Jely wny is not perceived. It may be assumed that in most of the states in this country future interests in chatjtels real could be created by deed, or- convey- ance inter vivos as well as by will. This, it is believed,, is a sound inference from the fact that future interests can', in this country, be created by deed or other mode of transfer inter vivos in a chattel personal.^* n Child V. Baylie, Cro. Jae. 459 ties, 3rd ed. §S 71a, 807 et seq. (1618) ; 5 Gray's Cases on Prop., ,'^t' Eyres v. Faulkland, 1 Salt. 231 2nd. ed. 425; Kales' Cases on Fu- (1697); 5 Gray's Cases on Prop., tare Interests, 321. 2nd ed. 119; Kales' Cases on Fu- 1* 3 Ch. Cas. 1 ; 5 Gray 's Cases ture Interests, 341. on Prop., 2nd ed. 428; Kales' Cases is Gray, Rule Against Perpetui- on Future Interests, 324. ties, 3rd ed. § 853 G. IB Id. 19 Ante, § 108. 16 Gjay, Biile Against Perpetui- ao7 § 110] INTRODUCTION TO THE LAW OF REAL PROPERTY [Ch. V § tlO. No doctrine of destructibility: The rule of de- structibility of contingent remainders never had any applica- tion to personal property. Hence the reason which that rule furnished for distinguishing between vested and contingent re- mainders does not exist where personal property was involved. The future interest in personal property was either valid or invalid. If it was valid it took effect according to the expressed intent. § ill. The Rule in Shelley's Case had no application to per- sonal property: The English authorities have now made it clear that the Rule in Shelley's Case does not apply to per- sonalty.** On the contrary a bequest of personal property to A for life and then to A's heirs is to be considered as creating such interests as the expressed intent of the testator calls for. It is believed that a number of jurisdictions in this country have adopted the same rule.^i On principle this is correct. When one turns to the feudal origin, and the conjectured feudal neces- sity and feudal reasons supporting the Rule in Shelley's Case,^^ it is apparent that they have no possible application to interests in personal property. § 112. Created by means of trust: If the legal title to a chattel real or to any other form of personal property be placed in a trustee, the utmost freedom was allowed in the creation of the future equitable interests. It made no difference whether the trust was created by a conveyance to a trustee inter vivos, or by will.** 10 Post, §436. 23 Gray, Rule Against Perpetui- 21 Jd. ties, §§75, 87. 22 Ante, 8 35. 108 CHAPTER VI. THE RULE AGAINST PERPETUITIES. § 113. The necessity for a rule limiting' the length of time in the future, at which future interests could be designated to take effect, became apparent in the seventeenth century: It was during the seventeenth century that the new freedom in creating future interests was realized. In 1609 it was estab- lished that legal future interests in chattels real could be created by will,i and the reported cases during the balance of the cen- tury show that the use of long term leases became a popular form of property, and their limitation by wills creating future interests in them naturally followed. In 1620 it was established that shifting future interests in real property could be created and that the same were not only valid but indestructible.^ It followed that springing future interests in land were valid and indestructible when created by will. It followed also that both springing and shifting future interests were valid and inde- structible when created by way of use. Trusts of land and of personal property began to appear and to be enforced by the court of chancery. With regard to them the utmost freedom in the creating of future interests prevailed. In 1696 it was settled that a legal future interest after a life estate in a chattel personal could be created by will.* In the seventeenth century, and especially toward its end, it became apparent that some limits must be placed upon this new power to create future interests. The owner of property could not be permitted to direct the course of the beneficial ownership throughout succeeding generations. The courts, however, did not refer the matter to parliament — or wait for parliament to act. They laid the foundation for the rule themselves, in the seventeenth century, and developed it to completion in the nine- teenth century. The rule so wrought out by the courts is called the Rule against Perpetuities, or the rule against remoteness. 1 Ante, § 109. ^ Ante, § 107. 2 Ante, § 85. 109 § 114] INTRODUCTION TO THE LAW OP REAL PROPERTY [Ch. VI It is one of the most striking instances of a purely judge-made- rnle of law of comparatively modern origin. '■ § 114. Manning's Case and Child v. Baylie: In Manning's Case in 1609 * it was settled that a chattel real might be limited to A for life, then to B, and that B's interest was valid. In OhUd V. Baylie in 1618 ^ it was held that if a chattel real were limited to A absolutely but if he leaves no issue him surviv- ing, to B absolutely, the limitation to B was void. In both cases alike the future interest was bound to take effect at the end of a life in being. The results reached indicate that the courts were attempting to make an arbitrary distinction de- pendent upon the manner in which the future interest was expressly limited. Nothing like the modern rule against re- moteness was suggested. § 115. Duke of Norfolk's Case (1682) : « Here a future in- terest in a chattel real like that held void in Child v. Baylie"^ was held valid because it was certain to take effect at the end of a life in being at the creation of the interests. This established the rule that future interests which were certain to take effect at the end of a life in being were valid. It equally suggesf^d that future interests which might not take effect at some time (not yet determined) after a life in being, would be void.^ § 116. Subsequent leading cases completing the statement of the rule against perpetuities: In Lloyd v. Garew « (1697), *there was a conveyance to A and his wife for life ; remainder to her children successively in tail; remainder io A in fee, pro- vided that if at the death of the survivor of A and his wife, there should be no issue of theirs then living, and if the heirs of the wife should, within twelve months after such death with- out issue, pay to the heirs of A £4,000, then the estate should go to the heirs of the wife forever. A and his wife both died with- out leaving issue living at the death of the survivor. The heir of the wife tendered the £4,000. It was held in the House of Lords that the executory devise over was valid. This case estab- *8 Co. 94b; 5 Gray's Cases on on Prop., 2nd ed. 428; Kales' Cases Prop., 2nd ed. 112; Kales' Cases on on Future Interests, 324. Puture Interests, 316. ? Ante, § 114. eCro. Jae. 459; 5 Gray's Cases ' s Show. P. C. 137 ; 5 Gray's Cases on Prop., 2nd ed. 425 ; Kales ' Cases on Prop., 2nd ed. 445 ; Kales ' Cases on Puture Interests, 321; on Future Interests,. 858^ 6 3 Ch. Cas. 1; 5 Gray's Cases 110 Ch". yi]' RULE Against PERPETUITIES [§117 lished the proposition that the future interest will be valid although it is not to take effect until some period of time in grossi after the termination of some lives in being. Here the period of time in gross was one year. ' In Stephens v. 8iephe*ns ^ it was held that an executory devise I to the child of a person living at the testatdr's death on such ^ child reaching twenty-one was valid. In Thellusson v. Woodford,^" it was settled that in fixing the time when the future interest should take effect as the termina- tion of lives in being when the interests were created, it was proper to take the lives of persons who were entii-ely uncon- nected with the beneficial interests in the trust estate. In Cadell v. Palmer ^^ it was held by the Hpuse of Lords that where the future interest did not take effect in possession, until the end of a period of twenty-one years in gross after lives in being, it was still valid. This case fixed the limit of time within which the future interest might take effect and still be valid. As the law stood after that case the future intereist was valid if it was certain to take effect, if at all, in possession within lives in being and twenty-one years after the date of the creation of the interests. § 117. In determining when a freehold interest took effect in possession resort was had to certain purely feudal conceptions : Thus a non-contingent freehold after a term was, from the feudal point of view, a present freehold in possession. '^ The free- holder was seized. Hence the Rule as formulated was not violated, no matter how long the term might be. The freehold was valid, regardless of the length of the term, before the Rule against Perpetuities existed. Hence it was most natural that the Rule should be so formulated as not to make invalid that which before had been valid. Thus did the feudal position of a freehold after a term survive to determine the application of the Rule against Perpetuities. 9 Cas. femp. Talb. 228 (1736) ; 5 " 1 CI. & F. 372 (1833) ; 5 Gray's Cases on Prop., 2nd ed. 452; ■ Gray's Cases on Prop., 2nd ed. 482; Kales' Cases on Future Interests, KalesI' Cases on Future Interests, 863. 898. 104 Ves. 227 (1799), 11 Ves. 112 laAmie, §32. (1805); 5 Gray's Cases on Prop., 2nd ed. 460; Kales' Cases on Future Interests, 871. ' 111 § 118] INTRODUCTION TO THE LAW OF REAL PROPERTY [CH. VI Suppose the freehold after the term be contingent on an event which must happen, if at all, within lives in being and twenty- one years from the creation of the interests ; and suppose it be allowable as a springing use or executory devise. '^ j^ will be valid so far as the Rule against Perpetuities is concerned be- cause when the event happens the freehold becomes non- contingent and the holder is then seized and in possession subject to the term, and it makes no difference how long the term may be. § 118. It was enough if the Ifuture interest vested in interest (as distinguished from taking effect in possession) within the required time: A future interes.t might not take effect in pos- session in either a modem or a feudal sense within the time specified by the Rule against Perpetuities, and yet.it might "vest in interest" within such time. Thus, if the limitations were to A for life, remainder to the eldest son (unborn) of A for life, remainder to B and his heirs if he survive A, B's remainder would vest in interest at A's death, but it might not come into possession till the death of an unborn person. So if the limita- tions were to A for life, remainder to the eldest son (unborn) of A for life, remainder to B and his heirs, B's remainder is vested at once, but may not come into possession till after lives in being and twenty-one years. B's remainder in both cases is valid be- cause the Rule against Perpetuities only required that the future interest vest in interest in the required time. This was a natural development because otherwise remainders which, before the Rule was known, would have been valid, would suddenly have been made void. The conception of vesting in interest is the same as the feudal conception of a vested remainder after a particular estate of freehold. Thus, a future interest vests in interest when it stands ready, throughout its continuance, to take effect in pos- session whenever and however the preceding estate of freehold (or estate analagous thereto) terminates. Under the feudal law the determination of whether a remain- der was vested or not had reference to its validity and alienabil- ity under that law. It was a relevant inquiry only when a legal remainder after a particular estate of freehold was concerned. But when the Rule against Perpetuities took over this concep- isAnte, §180, 85. 112 CH; VI] BULE AGAINST PEKPETUITIES [§119 tion of vesting, as indicating the condition into which the future interest must come within lives in being and twenty-one years fi'om the time of the creation of the interests, it was applied indiscriminately to all future interests in property. Thus it was applied to equitable future interests in land and to interests in personal property," whether legal or equitable. It may be that the feudal distinction between vested and contingent remainders is no longer of much account in determining the validity or alien- ability of the remainder, or the application of the doctrine of destructibility because of modern statutes ma,king contingent remainders indestructible and alienable. But the feudal dis- tinction between what future interests are vested remainders according to the feudal law and what are not, lives and is of importance in determining whether future interests in real or personal property, and whether legal or equitable, offend against the Eule against Perpetuities. § 119. Statement of the Rule : Professor Gray thus states the Rule against Perpetuities : ^^ "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. ' ' If the difficult word "vest" be eliminated by incorporating ^ into the Rule what is meant by "vest" the Rule would read something like this: No interest is good unless it must come into possession, if at all, not later than twenty-one years after some life in being at the creation of the interest ; except that if the interest, whether in real or personal property, or by way of equitable interest in real or personal property, must, if at all, not later than twenty-one years after some life in being at the creation of the interest, stand ready throughout its continuance to come into immediate possession, whenever and however a preceding estate which, if a legal interest in land, would have been a particular estate of freehold, determines, it is valid. To avoid the clumsiness of this formula three propositions may be stated : (1) All interests which are sure to take effect j^-Possession, if at all, not later than twenty-one years after some life in being 1* Evans v. Walker, 3 Oh. Div. 211 is Gray, Eule against Perpetuities, (1876); 5 Gray's Cases on Prop., §201. 2nd ed. 493 ; Kales '^Cases on Future Interests, 348. Kales Fut. Int. — 8 W^ § 120] INTRODUCTION' TO THE LAW OF REAL PROPERTY [CH. VI at the creation of the interest, are so far as the question of remoteness is cyoncerned valid. (2) Every interest which must, if at all, not later than twenty- one years after some life in being at the creation of the interest, stand ready throughout its continuance to come into possession, whenever and however a preceding estate which, if a legal inter- est in land, would have been a particular estate of freehold, determines, it is, sp far as the question of remoteness is con- cerned, valid. (3) Future interests not embraced in the t'Wfo preceding classes are void. § 120. Inaccurate and unsatisfactory statements of the Rule against Perpetuities: The Rule against Perpetuities is often stated as if it were a rule making void restraints on alienation. Thus, in Bouvier's Law Dictionary, a perpetuity is defined to be ' ' Any limitation tending to take the Subject of it' out of com- merce for a longer period than a life or lives in being, and twenty-one years beyond. ' ' i^ Such a method of stating the rule is unfortunate, for it mixes up the Rule against Perpetui- ties with the rules making void restraints on alienation. The Rule against Perpetuities should be carefully distinguished at all times from the rules making void restraints on alienation. There are two different principles of public policy involved and each finds expression in a different rule. § 121. Public policy behind the Rule against Perpetuities: While it is in accordance with modern views that the owner of property may dispose of it as he pleases, yet it is clearly in- expedient that he should be allowed to dictate who shall beneficially enjoy it much beyond the limits of his own personal experience. It is fair that he should designate who among persons living at his death should enjoy it, for these he knows. It is liberal to allow him to designate who shall enjoy it at the death of persons living at his death, although these he may not know; but it would clearly be most unwise and inexpedient to permit him to dictate the beneficial enjoyment into the third generation. This is completely beypnd his own experience. It runs into a time when other lives ought to be allowed to dictate the enjoyment of the property. It was to place a limit upon the power of owners of property to designate who in the future shall 16 Post, § 656. , i 114 ■ , Ch. VI] RULE AGAINST PERPETUITIES [§121 enjoy the beneficial ' ownership that the Rule against Perpetui- ties was invented. It does not seek directly to prevent restraints on aliena:tion. It is not guided in its application by the fact of whether the fee is alienable or inalienable It merely seeks to stop the creation of future interests which may take effect at too remote a time in the future. It says to the testator or settlor: "you cannot control the beneficial ownership of your property beyond a certain time in the future." The law has developed an entirely different set of rules which undertake to make in- valid all improper restraints and forfeitures on alienation as sueh,^'^ iT Ante, § 18; post, §§ 711 et seq. 115 BOOK II. INTERPRETATION OF WRITINGS — MORE ESPECIALLY WILLS. CHAPTER VII. THE THEORY OP LEGAL INTERPRETATION AND AVAILABILITY OF EXTRINSIC EVIDENCE. § 122. Introductory: In performing the process of inter- preting writings, three steps preliminary to the practice of the art of, interpretation must be taken: (1) the subject matter to be interpreted must be precisely defined; (2) the standard of interpretation in the given case must be determined; (3) the sources from which. the tenor of that standard is to be derived must be ascertained. TITLE I. SUBJECT MATTEE OF INTEEPEETATION. § 123. Inducement distinguished from legal act — The writ- ing constituting the legal act is the vnly subject matter of interpretation: A testator or settlor in the effort to express himself has two mental reactions. He first desires to accomplish a certain object and to do so may have the will or purpose to use certain words according to a given standard, such as their ordinary and general usage. AH this is preliminary, or by way of inducement, to his legal act of using certain words according to some standard. Then comes the decisive step of completing or making final a legal act in writing in which certain words are used with reference to a standard of meaning. If the words of the legal act, according to the standard used, express perfectly the purpose or object of the inducement, we have no occasion to consider whether the words used or the inducement is the subject matter of interpretation or to dis- tinguish between them for any purpose of interpretation. If, 117 § 123] INTEEPBETATION OF WILLS [Ch. VII however, words are missing from the legal act or if the wrong word is used so that what was willed to be expressed is not, in fact, expressed, we are at once required to choose between two possible subjects matter 6i interpretation — ^the object and pur- pose of the inducement or the words used. Conceivably, of course, a. system of law might exist where the courts endeavored to give effect to the objects and purposes of the inducement which were sought to be expressed in the formal act reduced to writing. In such a system, the writing might be used merely as evidence — no doubt often prima facie correct— of the objects and purposes of the inducement to the act. In such a system the subject matter to be interpreted would be the objects and purposes of the inducement to the writing — ^the "will" or "desire" of the actor. Whether for good or ill the. common law did not take this course. It has unequivocally made the writing the legal act which is enforced, and in conse- quence it is the writing alone which constitutes the subject mat- ter to be interpreted. That which is unequivocally withdrawn as a subject matter of interpretation is the inducement. This is uncompromisingly fundamental. ^ It follows that nothing can be inserted in the writing which is not there.2 No word not in the writing can be substituted for one that is there.* These rules apply with special force where the legal act is required by law to be in writing. They apply, however, as well where the legal act is, in fact, in writing, though not required to be. This is the result of the rule of law as to writings that where a legal act is expressed in writing (though not required to be) it may, and in most cases must, by a necessary inference that the party so wills, be taken as the sole memorial of the act.* 1 This has been laid down so many 2 4 Wigmore on Evidence,. § 2459; times that a complete list of refer- Thayer, Preliminary Treatise on Ev- •ences in the Illinois cases could idence, 411-412; Bond v. Moore, 236 hardly be given. A few picked up 111. 576; Heslop v. Gattorf, 71 HI. at random, are as follows: Blatch- 528; Jordan v. Jordan, 281 lU; 421,. ford V. Newberry, 99 111. 11, 50; s Kurtz v. Hibner, 55 lU. 514. Henderson v. Harness, 176 111. 302, 44 "Wigmore on Evidence, §§2401, 305; Butterfleld v. Sawyer, 187 111. 2425 et seq. 59§, 602; Engelthaler v. Engeltha- ler', 196 111. 230; Deemer v. Kessin- ,ger, 206 111. 57, 62. ,118 CH.VII] principles op interpretation [§124 "With the rise and development of equity and its jurisdiction to remedy mistakes the court of chancery might conceivably have provided a remedy to rectify the mistake of a testator or settlor in a unilateral instrument of devise or. gift, due to the omission of a word or phrase or the insertion of the wrong word. This, however, it has refused to do.^ It may, therefore, be stated generally that (apart from excep- tional eases, if any, where a remedy is given to reform a uni- lateral instrument because of mistake and by this process to give effect to the objects and purposes of the inducement) the >only subject matter of interpretation is the legal act of the party or parties contained in the words of the writing as distinguished from the inducement to the legal act. It makes no difference whether the legal act is required by law to be in writing or not, or whether the question arises at law or in equity. To this proposition, there is general agreement, though it is stated in a variety of ways. Wigram distinguished,. "What the testator meant " from ' ' What is the meaning of his words. " ^ " Intent ' ' has been distinguished from " meaning. "'' Mr. Wigmore dis- tinguishes "will" from "sense."* All alike are merely at- tempting to fihd suitable expressions for distinguishing the in- ducement to the legal act from the legal act itself for the pur- pose of emphasizing the fundamental rule that the latter only is the proper subject matter of interpretation. TITLE II. STANDARDS OF INTERPEETATION. § 124. Wigmore 's three standards applicable to unilateral acts: So far as unilateral acts — such as wills or settlements by way of gift inter vivos — are concerned, Mr. Wigmore sets out three possible standards of interpretation : ^ First: "The stand- ard of the normal users of the language of the forum, the com- munity at large, , represented by the ordinary meaning of 5 Newburgh v. Newburgh, 5 Madd. in Bickman v. Carstairs, 5 B. & Ad. 364; Miller v. Travers, 8 Bing. 244. 651, 663; Lord Wensleydale in Grej "Wigram, Extrinsic Evidence in v. Pearson, 6 H. L. C. 61, 106. Aid of the Interpretation of Wills, s 4 Wigmore on Evidence, § 2459. Introductory par. 9. ^4 Wigmore on Evidence, §§ 2458, 'Parke, J., in Doe v. Gwillim, 5 2461. B. & Ad. 122, 129; Denman,- C. J. 119 §125] INTERPRETATION OP WILLS [Ch. VII words"; Second: "The standard of a special class of persons within the community"; Third: "The standard of an individual actor who may use words in a sense wholly peculiar to himself." §125. Mr. Justice Holmes' single standard of interpreta- tion; Mr. Justice Holmes seems to be of opinion that one standard only is used — that "of a normal speaker of English, using them [the words in question] in the circumstances in which they were used." i" Justice Holmes does not quite make it clear whether he is merely asserting a fact or a rule of law. Does he say that all the so-called possible standards really reduce themselves to one ? Or does he say that the law allows only the one? Perhaps he means that the law allows only the one and that the different standards so far as they appear to be available are really reducible to the one.'i Mr. Wigmore, on the other hand, asserts: "All the standards are provisional only, and therefore each may be in turn resorted to for help";** and "a unilateral act may be interpreted by the individual standard of the actor"; i^ the point being to find out which standard is used. Suppose, for instance, the testator wrote his will in a cipher Avhich made sense as the words stood according to common usage, could it be shown that he had used a cipher or special individual standard of interpretation so that his words would, for the purpose of detertnining their legal consequences, bear a different meaning? Judge Holmes indicates that he would answer this in the negative.^* Would Mr. "Wigmore answer in 10 ' ' The Theory of Legal Inter- to a contract orally agreed that pretation," 12 Harv. Law Eev., when they wrote five hundred feet 417. ■ it should mean one hundred inches, 11 That would explain the follow- or that Bunker Hill Monument ing passage in ' ' The Thebry of Le- should signify Old South Church, gal Interpretation," 12 Harv. Law On the other hand, when you have Eev., 417, 420: "I do not suppose the security of a local or class cus- that you could prove, for purposes torn or haljit of speech, it may he of construction as distinguished presumed that the writer conforms from avoidance, an oral declaration to the usage of his place or class or even an agreement that words in when that is what a normal person a dispositive instrument making in his situation would do." sense as they stand should have a 12 4 Wigmore on Evidence, § 2461. different meaning from the common is Id. § 2467. one; for instance, that the parties 1* See note 11 supra. 120 Ch. VII] PRINCIPLES OP INTERPRETATION [§ 127 the affirmative," or would he avoid making a decision in the case put decisive of his theory by advocating a special rule that, on grounds of policy, the individual standard differing from that of common usage would not be permitted in the special ease? § 126. The "will" or "intention" of the inducement as a standard of interpretation: There is still another possible standard of interpretation — ^the inducement of the testator to his act, — what he intended to accomplish by his legal act. "Why should not his words be interpreted in the light of such "inten- tion" as a standard? It would seem that Hawkins may have contended for some such view,i* and that perhaps Thayer fol- lowed him in it.^''' Certainly Mr. Phipson^s more recently so interpreted Hawkins' and Thayer's views and appears to have agreed with them and to have thought that some authorities went so far. It is believed that no authority has ever consciously adopted such a view. To do so would be in effect to make the inducement the subject matter of interpretation in the guise of considering it as an appropriate standard for determining what the words used mean. There is little practical difference be- tween taking the words used as the subject matter of interpreta- tion while at the same time using the inducement to them as a standard, and taking the inducement as the subject matter of in- terpretation and then considering whether the words used express the meaning which is found in the interpretation of the induce- ment. If the inducement is to be kicked out of the :^ront door as the subject matter of interpretation, it should not be taken in at the back as the standard of interpretation. TITLE III. SOUBCBS FOE ASCEETAINING THE TENOR OF THE STANDARD OP INTERPRETATION— EXTRINSIC EVIDENCE. § 127. The instrument itself : The instrument itself not infrequently on its face indicates what standard of interpreta- '5 See 4 Wigmore on Evidence, it Thayer, Preliminary Treatise §§ 2462, 3481. on Evidence, 412, 480. 18 Hawkins, ' ' Principles of- Legal is < ' Extrinsic Evidence in Aid of Interpretation, ' ' 2 Jurid. Soe. Pa- Interpretation, ' ' 20 Law Quart. Rev. pers 298, reprinted in Thayer, Pre- 245, 253. liminary Treatise on Evidence, App. C. 121 § 128] INTERPRETATION OP WILLS [CH. VII tion is to be used. It may disclose on its face that it was written in cipher. Most frequently, of course, the instrument shows that the words employed were used in their usual and ordinary meaning. Indeed, it may be laid down that prima, facie the popular or common usage standard is to be taken. A mistake may have been made. The testator may have inadvertently used the wrong word, but the face of the instrument may show that he was not consciously putting any unusual meaning upon the language used. It may show that he was using the word which he did use by mistake according to the standard of the normal user of English. For instance, if he devises "section thirty- one," there may be evidence showing that his object was to devise ' ' section thirty-two ' ' and that he made a mistake in using "thirty-one," but the evidence may still be conclusive that the testator when he used "thirty-one," was not making use of a code in which "thirty-one" meant "thirty- two," but that he was using "thirty-one" in its usual sense. The interpretation of what he said is, therefore, plain, according to his words and the standard which he employed. If there is any relief, it is to correct a mistake and not to effect a different interpreta!tion of the instrument.^® §128. Extrinsic evidence — Introductory: All evidence which is relevant to complete or ascertain the tenor of the standard of interpretation to be applied and which is not ex- cluded by any special rules of exclusion, is admissible and must be considered. (1) According to Mr. Justice Holmes ^o the standard is that of "a normal speaker of English" using words in the "circum- stances in which they were used." If, however, the "circum- stances" are part of the test they must be carefully defined. Apparently Judge Holmes means by "circumstances" those which the courts, proceeding on an entirely different theory, — Namely, that the individual standard of the writer may be used, — ^have been accustomd to admit for consideration. (2) According to Mr. Wigmore (following, it is believed, the usual view of the coilrts)^ the individual standard of a testator or settlor may be used. Ilenee extrinsic evidence of that stand- ard may be considered if it is not excluded by some rule of 19 Kurtz V. Hibner, 55 111. 514; 20 "The Theory of Legal Inter- see post, § 134 et seq. pretation, ' ' 12 Harv. Law Eev. 417. 122 CH. VII] PRINCIPLES OP INTERPRETATION [§128 evidence. Always, however, the ultimate fact to be proved is whether the testator or settlor had an individual standard and if so, what it is. Never is the interpreter permitted to use the extrinsic evidence to prove the object and purposes of the in- ducement as a standard of interpretation. (a) In some cases, extrinsic evidence tends to prove an indi- vidual standard and does not, at the same time, tend to prove the objects and purposes of the indueemeiit. In such cases the use of the extrinsic evidence does not run the danger of intro- ducing the immaterial and improper issue of what are the objects and purposes of the inducement. Extrinsic evidence of this sort is, therefore, admitted. Thus, evidence that the testator habitually called a devisee by a particular name would tend to prove the use of an individual standard in the use of that name by the testator, and so with regard to habits of speech generally. If a will were on its face in cipher, the testator's key to the cipher would be relevant to show the individual standard in the use of the words and the inducement would be untouched by the evidence. (b) In most cases, however, any effort to go into extrinsic circumstances in oVder to establish an individual standard of the testator without, at the same time, showing the objects and purposes of the inducement to the legal act, is impossible. The ultimate facts regarding the objects and purposes of the in- ducement and the ultimate facts as to the individual standard are usually founded upon the same extrinsic evidence. The two issues are inextricably mixed- Take, for instance, "the knowledge and surrounding circumstances of the testator" or "his treatment of and relations with particular persons" or "his mode of enjoying and dealing with property." ^^ It is precisely out of evidence along these lines that the objects and purposes of the testator may be built up and used as a standard of interpretation. At the same time, evidehce on these lines often tends with varying degrees of probative value to show that the testator was using words according to a standard pe- culiar to himself. 21 ' ' Extrinsic Evidence in Aid of Interpretation of Wills," 20 Law Quart. Eev. 257. 123 § 128] INTERPRETATION OP WILLS [CH, VII In Charter v. Charter,^^ for instance, the testator having only two sons, William Foster Charter and Charles Charter, ap- pointed as his executor "my son, Foster Charter." The testa- tor's habits of speech were allowed to be proved, i. e., that he called his first son "William" or "Willie," but never Foster. Evidence was also considered that William had quarreled with the testator and had left the house. Other evidence was con- sidered of the testator's treatment of and feelings toward his sons. Such evidence may be of very slight or remote relevancy in determining whether the testator had a special individual standard of interpretation in writing Foster so that it referred to a son named Charles, but that it had some probative value in that connection should not be open to doubt. Proof of an inducement or "will" or "desire" to make Charles executor would tend to show either mistake in using the wrong name or else that the name used was to be interpreted with reference to a special individual standard of interpretation. It is proba- tive of either fact. It is, therefore, at least relevant to prove a special individual standard of interpretation. Sir James Stephen asks ^s "How can any amount of evidence to show that the testator intended [i.e., "willed" or "desired"] to write Charles, show that what he did write means Charles?" The answer is simple. What the testator "willed" or "intended" by way of inducement to say, tended to prove that what he did say was so said with reference to an individual standard of interpretation in which "Foster" designated the person named Charles. It must, therefore, be conceded that what a testator "wills" or "intends" by way of inducement, will frequently be of some probative value in determining whether or not he has used words according to some special individual standard.^* 22 (1874) L. B. 7 H. L. (Eng. & dividual standard, and that, there- Ir. App.) 364. fore, such cases prove that the in- 23 Digest of Evidence, note 33. dueement was a real and proper 2* It should be observed that factor in the process of interpreta- other writers, perceiving that some tion. Thus, Mr. Phipson in 20 Law of the evidence of surrounding cir- Quart. Eev. 245, 252, after aceept- cumstances considered by the courts ing the view that the evidence of the was relevant to prove the "intent" testator's treatment of and feelings of the inducement, have insisted towards his sons in Charter i;. Char- that it was not relevant to prove ter was relevant only to show the that the testator used any special in- testator's "intention" by way of 124 CH. VII] PRINCIPLES OF INTBRPRETATION [§128 Here, then, is the Achilles' heel of the subject for the inter- preter who wishes to use the inducement to control the meaning of the legal act. Here we have a theoretically correct issue upon which all evidence of the inducement — the "will," "desire" or "intention" — of the' testator, may be , received if not ex- cluded by any rule of evidence. The logical pursuit of sound theory has, therefore, brought us to an investigation of the theoretically forbidden field of the inducement to the legal act. The situation is a practical theoretic dilemma. A theory founded upon the fact that it is the legal act which is to be interpreted,' which tolerates no competition by the purposes and objects of the inducement, either as a subject matter of interpretation or as a standard of interpretation, is faced with a logical ground upon which the whole inducement may be gone into by way of showing an individual standard of interpretation. In this situation, the courts have done the only thing that could be expected. They have allowed experience to dictate several rules which have the effect of excluding to a consider- able extent, but not wholly, inquiries into the "inducement" or "will" or "intent" of the testator. In short, an effort has been made to allow some proof of the inducement of the testator in order to ascertain the tenor of an individual standard of interpretation without, at the same time, throwing the whole subject of the inducement open to proof and thus, in practical effect, making the inducement the subject matter to be inter- preted or the standard of interpretation. Such a course is a practical solution of the theoretic dilemma. It cannot be called illogical or unsound in theory because the theory of interpreta- tion, itself, pressed to its logical conclusion, results in a hope- less theoretic dilemma. The practical solution of a theoretic dilemma means that of two completing theoretically correct re- sults one gives way before the other. It remains, then, to con- sider the special rules by means 6i which evidence of the ob- indueement, says: "The issue or ing according to the actual intention object, then, could not have been of the testator, for otherwise the ev- to ascertain the meaning of the idence would have been irrelevant." words 'Foster Charter' according The fallacy here is the assertion to either general or special stand- that the evidence would otherwise ards; apparently, therefore, it must "have been irrelevant." ' have been to ascertain their mean- 125 § 129] INTERPRETATION OF WIL.LS [Ch. VII jects and purposes of the inducement — the "will" or "desire" of a testator — is excluded when offered to prove that the testator had a special individual standard of interpretation and what that standard was. . §129. The rule against "disturbing a clear meaning": This is embodied in 'Wigram's Proposition II as foUows^^^ "Where there is nothing in the context of a will, from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, and where his words so interpreted are sensible with reference to extrinsic circumstances, it is an inflexible rule of construction, that the words of the will shall be interpreted jn their strict and primary sense, and in no other^ although they may be capable of some popular or secondary interpretation, and stlthough the most conclusive evidence of intention to use them in such popular or secondary sense be tendered." The practical operation of this rule was to forbid the resort to any surrounding circumstances or to any individual standard where the words used in their primary sense were ' ' sensible with reference to extrinsic circumstances." In such cases the rule cut off the interpreter from the opportunity to build up the inducement and use that as a standard of interpretation. This, so far as it tends to prevent the objects and purposes of the inducement from being used as a rival subject matter of interpretation or a rival standard of interpretation, is theo- retically soimd. So far as it prevents proof of t^he use by the testator of an individual standard of interpretation, it is theo- retically unsound. A theoretic dilemma is presented. It has been solved by the application of practical considerations. The rule against disturbing a plain meaning rests in the last analysis upon grounds of practical expediency which support one theoretically correct result at the expense of another. Its only basis is the practical danger to the whole theory of interpreta- tion in letting in the intent of the inducement to be used as a , competing subject matter or standard of interpretation., There is no use in saying that it would not compete but would only furnish the basis for ascertaining the individual standard of 25 Wigram, Extrinsic Evidence in Aid of the Interpretation of Wills, Introductory par. 14. 126 CH. VH] PRINCIPLES OF INTERPRETATION [§129 the testator. Practically it would compete. Counsel are quick to build up a whole structure of inducement and to use it as a subject matter or standard of interpretation in order to over- throw the meaning of the words according to the standard which the testator has in most cases actually used. Practically, counsel would use the inducement for the purpose of so molding the process of interpretation as to correct mistakes. When the door had been opened that wide we would enter the realm of false, exaggerated and speculative claims. The inconvenience and expense of uncertainties in conveyancing and the handling of trust estates would arise and multiply. No cause would be hopeless and no cause secure. Suits to construe or for the pro- tfeetion of trustees or purchasers would multiply. Questions which ought to be settled inexpensively without litigation would have to go through the courts for a final determiiiation as to the proper meaning of the writing. In determining the force to be given to these practical considerations the opinions of a writer like Wigram and of judges and lawyers having the most considerable experience in the construction of wills and settle- ments are eiititled to much weight. There have been in recent timeis at least two views as to the . rigidity of this rule against disturbing a plain meaning. Wig- ram laid it down as a rule of law — "an inflexible rule of con- struction" — ^to be obeyed as other rules of law are obeyed. This view of the rule has been held and enforced in England and to some extent in this country.^e Lord Bowen, on the other hand, declared the rule to be not so much "a canon of construction as a counsel of caution" — not so much a rule of law as a reminder to judges that they were "not to give weiglit to guesses or mere speculation as to the probabilities of an intention, but to act only on such evidence as can lead, a rea- sonable man to a distinqt conclusion. ' ' ^"^ How far Lord Bowen 's suggestion as to the character, of the rule should prevail is again a practical question. In the hands of judges with the special training which success in practice at the English chancery bar furnishes, a "counsel of caution" might be sufficient to achieve all the best results of the more rigid rule and still leave some margin for the special case. Suppose, however, among 2» 4 Wigmore ' on Evidence, 27 Bowen, L. J. in Me Jodrel], 44 §§ 2462, 2463. Ch. D. 590. 127 § 130] INTERPRETATION OF WILLS [Ch. VII judges of far less specialized training the "counsel of caution" comes to mean merely the absence of any rule against disturbing a plain meaning and complete freedom to proceed as if no such rule existed. Such a condition continuing for a generation means that all suggestion of the rule would disappear and that judges and counsel alike would assume the freest right to con- sider all the extrinsic evidence, not excluded by recognized rules, in order to build up the inducement and to use it as the standard of interpretation. If that is the result of turning the rule against disturbing a plain meaning into a mere "counsel of caution," then the rule against disturbing a plain meaning has not only been wholly lost but the supreme effort of the common law to keep the inducement from becoming the sub- ject matter or a controlling standard of interpretation has to a large extent failed. § 130. Direct declarations by the testator or settlor — Such declarations as relate to the standard of interpretation used, when they do not also disclose the objects and purposes of the inducement, should be received: Thus, if a writing is appar- ently in cipher the declarations of the writer which reveal the key should be received. They are relevant. There is no rule of exclusion. If they are regarded as hearsay, then the ex- ception which permits declarations showing the state of the declarant's mind is applicable. So declarations of a testator which show his "habits of speech" should be received on the same ground. They preponderate to show the actual, individual standard. They may have practically no effect in indicating the objects and purposes of the inducement. § 131. Declarations of the testator or settlor which disclose the objects and purposes of the inducement: These are rele- vant in determining the individual standard used. They are not excluded by the hearsay rule because they fall within a well recognized exception. They are excluded ^^ because they are too certain to be used improperly to make the objects and purposes of the inducement the subject matter of interpreta- tion or the standard of interpretation-^^ They give more com- as Wilson V. Wilson, 268 111. 270. a kind of evidence to which both of 29 Nichols, "Extrinsic Evidence in these reasons [securing certainty of the Interpretation of Wills," 2 title and preventing fraudulent Jurid. Soo. Papers 352: "There is proof] and the analogy of the law 128 Oh. VII] PRINCIPLES DP INTERPKETATION ' [§ 132 fort to the false and improper issue than they give aid to the proper one. § 132. Exception in the case of equivocation: To the gen- eral rule excluding such declarations there is an exception in the case where the term to be ' interpreted, upon application to external objects, is found to fit two or more equally.**' The basis of this is the fact that upon a balance of all the considera- tions the objections to not using the evidence overcome the dangers from its use. For instance, if the evidence be not used, the gift may fail entirely for uncertainty. In such a situation, any evidence of the actual individual standard of interpreta- tion used ought to be resorted tO; Mr. Justice Holmes makes the acute suggestion ^i that ' ' while other words may mean different things, a proper name means one person or thing and no other." Hence (though this is not quite the way Mr. Justice Holmes puts it)^- the declaration of what the testator meant is in the highest degree probative of the individual standard of interpretation which he has, in fact, used. It has been argued that because in one case it is permissible to put in direct declaratibns which show the objects and purposes of the indueeinent, such objects and purposes are theoreticall;^ proper facts to be considered in the process of interpretation. The present exposition is made for the purpose of pointing out the danger of adhering to such a statement. The objects and purposes of the inducement are not in and of themselves either the proper subject matter of interpretation or a proper standard of interpretation. They are, as such, and in accord- ance with our legal theory, rigidly excluded. Indeed, even requiring the will to be in writng, an aspect of rivalry to the will, must strongly apply; I mean, of which raises a prejudice against its course, the species of evidence which reception." we have called direct evidence of ^o 4 Wigmore on Evidence, § 2472. intention; and which, if admitted, si "The Theory of Legal Inter- would consist for the most part of pretation, " 12 Harv. Law Bev. 417, declarations and informal written 418. memoranda of the testator, and of 32 He says : " * * * recogniz- instructions given by him to the per- ing that he has spoken with theo- aons employed in the preparation of retie certainty, we inquire what he the formal instrument. Evidence so meant in order to find out what he nearly allied in character to that has said. ' ' furnished by the will itself, presents Kales rut. Int. — 9 J29 § 132] INTERPRETATION OF WILLS [Ch. VII when evidence of the objects and purposes of the inducement tends to show an individual standard of interpretation, it is still excluded because of the danger arising in permitting any opportunity for the objects and purposes of the inducement to become a competing subject matter or standard of inter- pretation. To a slight extent, evidence which tends -to reveal the objects and purposes of the inducement is let in because it also tends to prove an individual standard of interpretation. That is the true basis for the exception which lets in direct declarations of intention in the case of equivocation. Some controversy has arisen as to whether the rule excluding direct declarations of intention, and the exception which admits them in the ease of equivocation, are rules of the substantive law of evidence or of the substantive law of interpretation. This is a debate over the names to be given to ideas. It is a profitless field of discussion except so far as it offers the opportunity again to state essential differences. The rule which excludes objects and purposes of the inducement as a subject matter of interpretation or as a standard of interpretation is a rule of the substantive law of interpretation. Hence, so far as direct declarations of intention, which show the objects and purposes of the inducement, are excluded because they are irrelevant, the application is of the substantive law of interpretation. So far as direct declarations of intention tend to prove an in- dividual standard of interpretation the substantive law of in- terpretation makes them relevant. When they are still excluded merely because they are of slight probative value to the proper issue and almost certain to be used improperly to make the objects and purposes of the inducement a subject matter of interpretation or a standard of interpretation, a rule of the substantive law of evidence is being applied. When this general principle of exclusion becomes inapplicable in the case of equivo- cation, we simply have a well defined situation where the prin- ciple of the substantive law of evidence upon which the rule of exclusion is founded becomes inapplicable. The results, therefore, logically reached by applying the rules of the sub- stantive law of interpretation to determine what is relevant, coupled with the absence of any rule of exclusion, are pro- duced. It is futile to spend time debating whether the failure of the general rule of exclusion to operate in the particular 130 CH. VII] PRINCIPLES OP INTEEPEETATION [§ 133 case is a mere application of the rule of the substantive law of interpretation, coupled with an absence of any rule of the substantive law of evidence requiring exclusion, or whether it is a part of the rule of exclusion of the substantive law of evidence which determines 'when the general rule of exclusion does not operate. § 133. Even where extrinsic evidence (other than direct declarations of the testator or settlor) tends to prove an in- dividual stajidard of interpretation in cases of ambiguity under Wigram's Proposition II, it may still be excluded because it is of slight and remote probative force to establish any standard of interpretation on the one hand and is likely to be used im- properly to establish the inducement as a rival subject matter or standard of interpretation: Wigram,^* so far as he went, was exactly correct when he said, "Any evidence is admissible, which, in its nature and effect, simply explains what the testator has written; but no evidence can be admissible which, in its nature or effect, is applicable to the purpose of showing merely what he intended to have written." His error was in assuming that evidence presented tended to prove merely one thing or the other. The fact is that most extrinsic evidence tends to prove both things — ^namely, that the testator used an individual standard and that he intended to accomplish certain objects and purposes by his words. Wigram?s error in refusing to notice that the same evidence might be relevant on both issues, and, indeed, that because it tended to prove the intent of the inducement it tended to prove the special individual standard of the testator, made it difficult for him to explain some cases where extrinsic evidence was, in fact, admitted. At the same time, Hawkins, whose views would seem to require that the intention of the inducement be regarded practically as a standard of interpretation, finds many apparent difficulties in the cases^ where the evidence of extrinsic circumstances tending to prove the intent of the inducement was excluded. The true view, however, and the one which will best reconcile all the cases is this: In determining that the testator has used a special individual standard, one may go into evidence of the intention 33 Wigram, Extrinsic Evidence in Preliminary Observations, Pars. 9 Aid of the Interpretation of Wills, and 10. 131 §133] INTERPRETATION OF WILLS [Ch. VII of the inducement, but in so doing it must be remembered that there is danger of the evidence of the "intention" of the in- ducement being used as in and of itself a standard of inter- pretation or a rival subject of interpretation. This is to be avoided as improper. Hence, on a familiar principle (believed by the writer to be a rule of the substantive law of evidence, but this is wholly inconsequential), fact^ which tend only very remotely to prove the "intention" of the inducement and therefore, still more remotely, to prove any special standard of interpretation, are of such slight and remote value regarding the proper issue and so likely* to be used in an improper way to make the intention of the inducement a subject matter or standard of interpretation, that courts have refused to consider them at all and have, therefore, excluded them.^* On the other hand, in many cases the extrinsic evidence (other than direct declarations) has much probative force to show an individual standard of interpretation and are weak and indirect in their 3* Examples of such rulings will be found in Mr. Phipsbn^s article in 20 Law Quart. Rev. 245, at 258, as follows: "In Maybank v. Brooks (1780), 1 Bro. C. C. 84, A left a legacy to 'B, his executors administrators and assigns' but, B having died before the date of the will, B's representative claimed the legacy, tendering evidence tliat A knew of B's death when making the will, in order to show that A meant the legacy to be transmissible. Lord Thurlow held proof of A's knowl- edge to be evidence of intention and inadmissible. Again, in Neale v. Neale (1898, C. A.), 79 L. T. 629, A, a widow, having settled property on certain trusts to arise after the 'Solemnization of her intended mar- riage,' B, a beneficiary, claiming that these trusts had arisen, ten- dered evidence that the settlement was made in contemplation of a mar- riage, which had in fact taken place, although known by the parties to be invalid, between A and her deceased husband 's brother. These facts were held to be evidence of intention and rejected. 'The intention of the par- ties cannot,' Smith, L. J., held, 'be taken into account for the purpose of construing the plain words of a deed, ' which here clearly referred to a valid and not an invalid union. Lastly in Higgins v. Dawson, [1902] A. C. 1, the question being whether the words 'residue and remainder,' in a will, referred to the surplus of tw6 sums recited to have been lent by the testator on mortgage, or to the surplus of his whole estate, proof that the mortgage debts were all the property the testator possessed at the time of the will was tendered as favoring the former view, but held to be evidence of intention and rejected. ' The purpose and effect of the evidence, ' Lord Shand remarked, 'is to supply a basis for inferring the intention of the testator.' " 132 Ch. VII] PRINCIPLES OP INTERPRETATION [§135 tendency to show the objects and purposes of the inducement. Typical cases of this sort are those where the extrinsic evi- dence relates to "the knowledge and surrounding circumstances of the testator," or "his treatment of and relations with par- ticular persons," or "his mode of enjoying and dealing with property. ' ' ^® Clearly the determination of whether a par- ticular item of extrinsic evidence which tends to prove the in- tention of the inducement, does so to a degree so slight as to be excluded as evidence of a special individual standard lies largely in the discretion of the court. All courts and all judges would not rule the same in every case and the facts of the different cases are infinitely various. It is enough to have pointed out the actual line of reasoning upon which the difference in re- sults rests. It is not to be supposed 1;hat all results can be reconciled or that any generalization can be made under which they could be reconciled. TITLE IV. CASES ILLUSTRATING THE APPLICATION OF SOME OF THE FOEEGOING PBINCIPLES— PAETICITLARLY THE RULE AGAINST DISTURBING THE PLAIN MEANING. § 134. Introductory: The central point in the theory of legal interpretation is whether the objects and purposes of the inducement — what Wigram calls the "meaning of the testator" as distinguished from "what his words mean," — what others have called the "intent" as distinguished from "meaning," — what Mr. Wigmore calls the "will" as distinguished from the "sense" — may be used as the subject matter of interpretation or as a standard of interpretation, or to what extent they may be used to prove a special individual standard of interpretation. The cases relating to the description of property devised are especially useful in furnishing the answers to these questions. §135. (1) Description of property devised — Where the description of the land devised is precisely and in all particu- lars applicable to an existing piece of land no ambiguity arises and, though the extrinsic evidence shows beyond question a mistake in using the description expressed, that description S5 See Mr. Phipson 's article, id., 257. 133 § 135] INTEEPKETATION OP WILLS [Ch. VII must prevail as a matter of construction: In such a case the language employed was used with reference to the ordinary standard of usage. It is sensible with reference to extrinsic circumstances. The difficulty is one of mistake. If no remedy is permitted for mistake and the question becomes purely one of construction the problem must be solved in favor of the meaning of the words according to the usual and ordinary primary meaning. This is the proposition oi Kurtz v. IIibner.^'> In that case a testator devised to James ' ' The south half of the east half of the south quarter, Section 31, in Township 35, Range 10, containing forty acres, more or less." In a suit for partition by one of the heirs at law of the south half of the south half of the southeast quarter of Section 32, Township 35, Range 10, containing forty acres, James offered to prove that at the time of the death of the testator he was in the actual possession of the forty acre tract sought to be partitioned as tenant of the deceased and "that the draftsman of the will, by mistake, inserted the word 'one' after the words 'Section thirty' instead of 'two' so as to bequeath to James land in Section thirty-owe instead of Section ihirty-two." The evidence was rejected and this was affirmed. It is submitted that the result reached is a correct application of the principles already set out. In the first place, it should be noted that the description as written does not refer in any way to the land described as land belonging to the testator. Hence there is no ambiguity arising from the face of the writing taken in connection with the ex- ternal facts. The testator has devised forty acres in Section 31 and there was such land as he described. The offer of proof was merely an offer to show that the objects and purposes of the inducement sought a different result. But such objects and purposes were not relevant as a subject matter of interpretation or as a standard of interpretation. Nor, as they were offered, were they relevant to indicate that the testator in using the figure 31 was employing any special individual standard of in- terpretation — as if he had been using 31 as a sort of cipher code 36 55 111. 514. This case has been Williams v. Williams, 189 111. 500; followed by our Supreme Court in Lomax v. Lomaz, 218 111. 629; the following: Bishop v. Morgan, Graves v. Eose, 246 111. 76; Clancy 82 111. 351; Bowen v. Allen, 113 111. v. Clancy, 250 111. 297; Stevenson 53; Bingel v. Volz, 142 111. 214; v. Stevenson, 285 111. 486, 489. 134 CH. VII] "principles OF INTERPRETATION [§137 number for 32. Indeed, the evidence was in terms offered to prove "mistake" on the part of the testator, which meant that the offerer admitted that the testator had used the figure 31 in its ordinary and usual meaning but had done so by mistake. No question, therefore, of interpretation of the writing arose as a result of the offer. The only question presented was whether a will can be reformed in equity for mistake. The court assumed that this could not be done. § 136. Where, however, the description of the land devised is not precisely and in all particulars applicable to an existing piece of land, the description is not sensible with reference to the extrinsic circumstances and that part of the description which, in view of admissible extrinsic circumstances, appears to be false may be rejected under the rule "falsa demonstratio non nocet": Thus, where, along with the description of land which the testator never owned, there is an added designation of the land devised as "my homestead,"*^ "my house and lot," 38 "two lots of land known as the house lot and mill lot," ^^ "Hays' farm," *" "home farm containing 200 acres," ^^ property "which I now own" or "belonging to me," ^^ or "a part of my estate," *3 the description is not precisely and in all particulars aipplicable to an existing piece of land. Therefore an ambiguity arises and that part of the description which is false may be rejected, leaving a balance to be used, if possible, to designate some tract of land. § 137. The principal difficulty is in determining whether or not the description of the land devised is precisely and in all particulars applicable to an existing piece of land: Thus in Lomax v. Lomax,** there was a devise of the ' ' southwest frac- tional quarter of Section 24, T. 40, containing about 55.87 acres more or less. ' ' There was no such fractional quarter in Town- . ship 40 and the only fractional quarter in Township 40 con- ■ taining about 55.87 acres more or less was one in Section 14 and it was owned by the testator. Under these circumstances it S7 Morrall v. Morrall, 236 111. 640. *2 Douglas v. Bolinger, 228 III. 23 ; 38Bowen v. Allen, 113 111. 53. Daniel v. Crusenbury, 279 lU. 367; 39 Swift v'. Lee, 65 111. 336. Stevenson v. Stevenson, 285 111. 486. 40 Emmert v. Hays, 89 111. 11. *3 Decker v. Decker, 121 111. 341. 41 Lawrence v. Lawrence, 255 111. ^i 218 111. 629. 365. 135 i 137] INTERPRETATION OP WILLS [Ch. VII would seem that the description used did not apply precisely and in all particulars to any land. Hence an ambiguity arose and the false portion which would be "24" of Section 24 could be stricken out, leaving as the description the southwest frac- tional quarter in Township 40 containing about 55.87 acres more or less. This would have been sufficient to designate the frac- tional quarter in Section 14. The holding of the court that there was no ambiguity must have been based upon the opinion that the description as contained in the will was precisely and in all particulars applicable to an existing piece of land. The court's conclusion is, therefore, with deference, doubted. Suppose, however, no super-added descriptive phrase (such as "belonging to me") is explicitly used. Suppose, for instance, there is simply a devise of Section 1 in Township 7, Eange 6, and that there is such a tract of land but that it was never owned by the testator. If the additional descriptive phrase "belonging to me" cannot by any process of interpretation be found in the four corners of the instrument, the description is precisely and in all respects applicable to an existing tract of land. There is no ambiguity and therefore no ground for any departure from the primary meaning. If, on the other hand, by any legitimate process of construction the additional descriptive phrase "belonging to me" can be found expressly included, an ambiguity does arise and the false part may be rejected and the balance construed. The apparently conflicting decisions of our Supreme Court are due to the fact that different judges and, in some instances, the same judges at different times, incline one way or the other on the. question whether the context of a particular instrument justifies the finding that the words "belonging to me" are actually and expressly contained in the instrument as part of the description, though such words are in a physical sense absent. The results of the authorities as they now stand appear to be as follows: 1. If there is nothing on the face of the instrument except the legal description of land, the fact that the testator never owned that land, the further fact that he purported to devise the exact number of acres which he owned but, if the description be taken as it stands, he would die intestate as to all or all but 136 CH. VII] PRINCIPLES OP INTERPRETATION [§ 138 a few acres which he owned, does not warrant the court in interpreting the will as including the super-added words of description "belonging to me."*^ 2. On the other' hand, to some extent, which defies any precise statement, the court may, upon a special context, find such a situation as warrants the determination by it that the words "belonging to me" are an actually expressed part of the de- scription, although such words are not explicitly set out in the instrument. Thus, in Alford v. Bennett*^ where the tes- tator devised all his land by special descriptions except the odd amount of twenty-five acres in the northwest quarter of Section 17, and where by a previous clause he had devised fifteen acres from that quarter section leaving still undisposed of twenty-five acres, the will was construed as expressly referring to land which the testator owned, so that when he devised "twenty-five acres in the northeast quarter of Section 17" the "northeast" could be rejected as false.*^ § 138. After part of a description has been rejected under the rule of "falsa demonstratio" the meaning of what is left must be construed and given effect according to the usual principles of construction: In many cases this produces a satisfactory result.*^ In some cases, however, the rejection of what is false in the description may leave the description so ^6 Stevenson v. Stevenson, 285 111. " See also Whiteomb v. Eodman, 486; Clancy v. Olaney, 250 111. 297; 156 111. 116 (where the descriptions Graves v. Eose, 246 111. 76; Lomaz overlapped if taken literally and V. Lomax, 218 111. 629 ; Williams v. were therefore contradictory) ; Huff- Williams, 189 111. 500; Bingel v. man v. Young, 170 111. 290 (where Volz, 142 111. 214; Bowen v. Allen, an odd number of acres was referred 113 111. 53; Bishop v. Morgan, 82 to); Vestal v. Garrett, 197 111. 398. lU. 351; Kurtz v. Hibner, 55 111. 514. ■'s Swift v. Lee, 65 111. 336; Em- If the following cases hold the mert v. Hays, 89 111. 11; Decker v. contrary they must be' regarded as, Decker, 121 111. 341; Whiteomb v., for the time being at least, oyer- Bodman, 156 HI. 116; Huffman v. ruled:' Felkel v. O'Brien, 231 111. Young, 170 111. 290; Vestal v. Gar- 329; Collins v. Capps, 235 111. 560; rett, 197 111. 398; Douglas v. Bol- Gano V. Gano, 239 IlL 539. inger, 228 111. 23 ; Felkel v. O 'Brien, As to the advisability and method 231 111. 329; Collins v. Capps, 235 of changing the rule now in force 111. 560; Morrall v. Morrall, 236 111. see a m. Law Bulletin 175, 286; 14 640; Gano V. Gano, 239 111. 539; 111. Law Bev. 147. ' Lawrence v. Lawrence, 255 111. 365; *« 279 111. 375. Daniel v. Ousenbury, 279 111. 367. 137 § 138] INTERPRETATION OF WILLS [Ch. VII mutilated that it does not describe anything. In that case the devise fails for uncertainty.*" ' Patch V. White,^" is the leading example of a sound but extremely ingenious handling of what was apparently a hope- lessly mutilated description so that it expressed a sensible and an appropriate meaning. In that case the testator devised to his brother "Lot numbered six in Square four hundred three to- gether with the improvements thereon erected and appurte- nances thereto belonging." The will, itself, and the extrinsic facts disclosed the following : The testator referred to the lots devised as his own property in the opening words of the will as follows: "and touching worldly estate, wherewith it has pleased the Almighty God to bless me in this life I give, devise, and dispose of the same in the following manner and form." It appeared that the lot described did not belong to the testator and never had and that there were no improvements upon it. Plainly, therefore, the description taken altogether was inapt. An ambiguity arose. The first thing the court had to do was to decide what part of the description was false and what part true. It naturally decided that that part was false which re- ferred to lot six in square four hundred three. The false part of the description having been rejected the devise stood as the devise of a lot owned by the testator at the date of his will number in square which was improved. Now, the difficulty which arose was whether this was a sufficiently certain description to make identification of any lot possible. If the devise, as quoted, had stood alone with nothing else in the instrument it would certainly have been too uncertain to enable any lot to be identified and the devise would, therefore, have failed. From the rest of the will, however, it appeared that every other lot which the testator owned at the date of the will was specifically devised and expressly described with the exception of lot three in square four hundred six and that this lot three was improved with a dwelling house. It also appeared that by a subsequent clause of the will the testator had devised the balance of his real estate which he believed to consist of certain lotSj describing them, thereby contributing ■ts Bingel v. Volz,- 142 . 111.- 214.; bo 117 xj. S. 210. Heller V. Heller, 147 111. 621; Clan- cy V. Clancy, 250 111.. 297. 138 GH. VII] PRINCIPLES OP INTERPRETATION [§ 139 an expressed declaration in the will that the descriptions of the lots devised covered every lot he then owned. The further residuary clause related only to personalty. Under these cir- cumstances a devise of lot in square having im- provements was as sufficient to identify the lot as if it had said "my only remaining lot" or "my only lot left." The court very properly held, therefore, that the will was to be inter- preted to convey lot three in square four hundred six. It should be noticed that the court did not use any evidence of the objects and purposes of the inducement, either as a subject of interpretation or as a standard of interpretation. Indeed, the extrinsic evidence used can hardly be said to have been evidence of the objects and purposes of the inducement at all. Nor did the court construe "lot six, square four hundred three" as meaning "lot three square four hundred six." To have done so the court must have found that lot six, square four hundred three, was a code expression for something en- tirely different — that the testator was using the figures accord- ing to an individual code standard. There was no evidence at all of anything of the sort. The inference was that the testator had used the figures in their ordinary and usual significance and that he had done so by mistake. This mistake, as such, could not be rectified by a court of equity. In spite of some inadvertent phrases about the "correction" of errors or "slips of attention" the court did not undertake the establishment of any jurisdiction in equity to correct mistakes in wills. What the court did do was this: it found a description which taken altogether did not fit the extrinsic facts. Then it rejected that which appeared on the evidence to be false and iiiapplicable. After this it still found sufficient in the whole instrument to de- scribe and identify lot three, square four hundred six, as the property devised. §139. (2) Identification of the devisee: Where the de- scription of the devisee is precisely and in all particulars ap- plicable to an existing person, and one only, no ambiguity arises ; and even though the extrinsic evidence, however strong, shows a mistake in using the description, as a matter of construction simply the description as made must prevail. Where, however, the description of a devisee is not precisely and in all particulars applicable to any existing person an am- 139 § 140] INTEEPRETATtON OP WILLS [CH. VII biguity arises and extrinsic circumstances may be resorted to for the purpose of determining that the testator used a standard of interpretation which justifies the use of the description in question in a secondary meaning. Thus, where several charities were designated as legatees but no corporation or association precisely answered the description used, it was proper to examine the extrinsic circumstances to determine what institutions were designated by the names used.'^ 50 where the description of the devisee is precisely and in all particulars applicable to two or more persons an ambiguity arises and extrinsic circumstances may be resorted to. Thus if the devise is to A. B. and there are two of the same name, the ex- trinsic circumstances may be gone into, but if they show that one is the father and the other the son, that circumstance will raise a prima facie inference that the father is meant rather than the son.^^ § 140. (3) Who are included in the words of general de- scription: Where the general description of devisees taken in its primary meaning is sensible with reference to extrinsic circumstances because some one answers the primary meaning of the description, no ambiguity arises and so far as any ques- tion of construction is concerned the primary meaning must prevail, even though the extrinsic circumstances show a mistake in not qualifying the designation so as to include others. Thus, if there is a gift to children and there are legitimate children, they and they alone will take and the illegitimates will be ex- cluded even though the extrinsic evidence showed that they and they alone were intended. Even where, there were no other than illegitimate children, when the will took effect or at any other period, so that the gift, if confined to legitimate children would fail for want of objects, the primary meaning of "children" was adhered to ^* because the word as used by the testator was still sensible in its reference to extrinsic circumstances, since at the time it was used it might 51 Preachers' Aid Society u. Eng- 53 Smith v. Garber, 286 111. 67, land, 106 111. 125; Missionary Soei- 69, quoting with approval 2 Jarman ety V. Mead, 131 la 338. on Wills, 217. 52 Graves v. Colwell, 90 111. 612; FjtCe V. Fyffe, 106 111. 646; Doty v. Doty, 159 111. 46, 140 Ch. VII] PRINCIPLES OP INTERPRETATION [§ 141 have had reference to a future possibility of marriage and the birth of legitimate children. It was only, therefore, when it could be shown that the illegitimate children had become, accord- ing to a usage indulged in by the testator himself, "children'' of the person named that they were regarded as designated.^* Section 2 of the Act on Descent ^^ which provides that an ' ' ille- gitimate child shall be the heir of its mother," hais now, how- ever, been held so far to place the illegitimate child in the cate- gory of lawful children of the mother, that it is at least ambigu- ous whether in the will of the mother's aunt devising a re- mainder to the "child or children" of the mother, the illegiti- mate child is referred to.^^ This ambiguity makes a resort to extrinsic circumstances possible, so that where they indicated that the testatrix knew of the existence of the illegitimate child when her will was made and that the age of the parent made the existence of legitimate children doubtful, the illegitimate child was included in a devise to the chUd or children of the mother. ^'^ § 141. (4) Where the question is a. Griggsville Nat. Bank, 209 111. 350; Craw v. Craw, 210 111. 246;- Eiemenschneider v. Tortoriello, 287 111. 482. See alsoFairman v. Beal, 14 111. 244; Boyd f- Strahan, 36 111. 355;. Markillie v. Eagland, 77 111. 98; Funk v. Eggleston, 92 111. 515. 167 § 169] ESTATES [Ch. IX court, never permits the fact that a power is given to dispose of the fee or absolute interest to enlarge the life estate into a fee or absolute interest.*" When, however, the transfer is to A and "his heirs and assigns," ^^ or "in fee,"®^ or "absolutely" ^^ it has been regularly held that the first taker had the absolute interest and the gift over was void. In a number of cases where the transfer was not to A "and his heirs," or to A "in fee," or to A "absolutely," it has been held that A took a fee or abso- lute interest by reason of a strong special context supporting the creation of a fee.** § 169. Miscellaneous contexts only superficially related — Limitations to A and his children and their children: In Leiter v. Sheppard,^^ the testator devised the residue of his real and personal estate to A "to be held by her in her own right, then to her children, heirs and assigns forever," and "to C, and to her children, heirs and assigns after her." The court held that A and C took indefeasible estates in fee simple and not life estates with the remainders in fee to their children. This is correct. By the statute the primary effect of the devise gave A and C a fee. The question was whether there was any context which justified a construction which would produce a life estate. soWelseh v. Belleville Savings Kron v. Kron, 195 111. 181; Orr v. Bank, 94 111. 191; Henderson v. Yates, 209 111. 222; Williams v. El- Blackburn, 104 111. 227; Skinner v. liott, 246 111. 548; Wilson d. Wilson, McDowell, 169 111. 365; Griffiths v. 268 111. 270. Griffiths, 198 111. 632. 82 Stewart v. Stewart, 186 111. 60; Compare, however, the cases where 83 Wilson v. Turner, 164 111. 398. a trustee whose active duties re- 84 in Burton v. Gagnon, 180 111. quire him to take a legal estate only 345, the devise was of a residue for the life of a beneficiary, is held "according to the laws of descent to take a fee where a general power of the State of Illinois." In Koef- of sale is conferred upon him. Post, fler v. Koeffler, 185 111. 261, the de- § 191. vise was ' ' my natural son * * * Compare also the general rule shall be my principal heir." In stated that a limitation to A with Dalryn^ple v. Leach, 192 111. 51, the a general power to dispose of the gift over failed because it was prec- fee indicates a fee simple. Mar- atory and too indefinite as to sub- killie V. Eagland, 77 111. 98, 101 ; ject matter, and the gift to the first Tunk V. Eggleston, 92 111. 515, 533 ; taker was to a wife ' ' of all my Fairman v. Beal, 14 111. 244, 245. property, real and personal, arid of 81 Friedman v. Steiner, 107 111. every character whatsoever." See 125 ; Ewing v. Barnes, 156 111. 61 ; ante, § 159. Lambe v. Drayton, 182 111. 110; 85 85 111.242. 168 Ch. IX] PEE SIMPLE [§169 The word "then" in the devise to A, and "thereafter" in the devise to C, furnished an argument that the devise was to A and C respectively and then, or at their death, to their children. On the other hand, the words "heirs and assigns forever" were regu- lar words of limitation which went with the gifts to A and C and in both cases the word "children" seems to have been used as part of the formula of words of limitation and not as a separate word of purchase. Assuming that one of these considerations balanced the other, we have left gifts to A and C simpUciter, which under the statute are in fee. The result reached and the reasoning of the Court are valuable as emphasizing the prima facie effect of a devise to A simpUciter and that the context which overcomes it must be decisive and not doubtful. In Schaefer v. Schaefer,^^ real estate was devised to a daugh- ter "for her sole use and benefit, and of her children and their children thereafter — but in the event that my daughter * * # should die and leave no children as heirs" over to J and his heirs. It was held that the daughter took only an estate for life. Here the word "children" is not included in the words of limi- tation applicable to the gift to the daughter. The phrase is "children and their children." This suggests that the children are to take in fee. The second use of the word "children" is in effect an attempt to use a word of limitation. Hence the de- vise is to the daughter and in fee to her children thereafter— i. e., after the daughter's death. This brings the gift to the daughter within the class of cases where the limitations are to A and "at his death" to B, and where A regularly takes a life estate.*'^ Then too, the gift over is really on two contingencies, one of which must happen — if A has children and if she does not. Under the authorities already noted, this furnished an argument that the first taker had only a life estate.*^ In Strawiridge v. Strawhridge,^^ the devise was to several children (naming them) "and to. their children forever." The placing of this last clause and the word "forever" clearly indi- cate an attempted use of words of limitation.. Hence there was no ground for departing from the prima facie effect of the stat- ute conferring a fee upon the children named.^" 86 141 III. 337. 8!) 220 111. 61. »^ Ante, % 162. " " so See also Dick i;'.' Eieker, 222 88 Ante, § 165. 111. 413, 417. 169 g 169] ESTATES [Ch. IX In Conner v. Gardner,^^ after a devise, expressed only by im- plication from the whole instrument, to the testator's daughter, this provision occurred: "the shares or portions of my estate falling to my daughters, respectively, shall be theirs and their child's or children's exclusively." The italicized words were held to be merely attempted words of limitation, so that the daughters took the fee. Other elements of the context aided this result. In Barclay v. Piatt, ^'^ the devise was "for the benefit of" M and J, "for them and their children, should they have any." This was construed to give M and J life estates with a remainder in fee to their children, which vested in those born, and opened to let in those afterwards born. The inference from the phrase used, that' "children" was not an attempted word of limitation, may readily be approved. The basis, however, for holding that the children did not take as tenants in common with M and J is not so clear. There is no phrase which suggests that at the death of ^l and J the children are to take. If the statute had been effective to create a fee, ]\I and J and their children would have taken as tenants in common. This would have prevented any after born children from sharing and the context and circum- stances here presented were such as to indicate that after born children were to share. Suppose that personalty be limited to A "and the issue of her body," are the words "issue of her body" attempted words of limitation so that an estate tail in personal property is intended, with the result that an absolute interest in the personal property is created in A? Or is "issue" used as a word of purchase? If so, do the issue living take jointly with A, or does A take a life interest with a gift over to such issue as may be born to her in her lifetime ? The preceding authorities suggest the possibil- ity of any one of these results and yet cannot be said to be de- cisive in favor of any. The proper result to be reached where personalty is limited to A and the "issue of her body" rests upon considerations which can best be dealt with in the chapter on es- tates tail.83 ni 230 111. 258. 93 See post, § 300. 92 170 111. 384. 170 Ch. IX] FEE SIMPLE [§171 TITLE III. LIMITATIONS TO "A OB HIS HEIRS." § 170. (1) Where there is no preceding^ estate — In a con- veyance inter vivos: It was said by Coke** that, if real estate were conveyed inter vivos to " A or his heirs, ' ' A had ' ' but an estate for life, for the uncertainty. ' ' An early Massachusetts ease*5 suggests that "or" be read "and"*® and that A take the fee. Under See. 13 of our Conveyancing Act, A would clearly take the fee and the words "or his heirs" would be in- operative as words of purchase, or would be looked upon as an effort to use informal words of limitation intended to create a fee. § 171. By way of devise: If A, in the case put, survives the testator, he takes the absolute interest in personalty, and, since Sec. 13 of our Conveyancing Act, a fee in real estate.*^ If A dies before the testator, the question arises whether "or his heirs" is merely an informal expression indicating words of limitation intended to carry a fee (in which case there would be a lapsed devise or bequest ** ) , or does it mean that the heirs of A are to take in his place. The latter seems to have been the usually accepted construction.'* Where the gift is to a class of persons, as the children of A, "or their heirs," and the heirs of a child are regarded as taking if the child dies before the testator, the further question arises whether the heirs of a child of A, who died before the will was made, take. This is said to depend upon whether the phrase "or their heirs" was merely substitutionary or a special original gift. If the former, the heirs of the children dying before the will was executed, do not take ; if the latter, they do. The Eng- lish eases seem regularly to have held a devise or bequest to a class "or their issue" to be properly substitutionary, so that the issue of members of the class, dead at the date of the will, could 91 Co. Lit. 8b, 3 Gray's Cases on v. Chicago Title & Trust Co., 187 Prop., Snd ed. 304. 111. .42; Smith v. Dellitt, 249 111. 95 White V. Crawford, 10 Mass. 113. 183, 188 (1813). 97 Theobald on Wills, 7th ed. 676; , 96 gee the following cases where Adshead i), Willetta, 29 Beav. 358. "or" construed "and:" Kindig's ss gioan ii. Hahse, 2 Bawle (Pa.) Executors v. Smith, 39 111. 300; 28. Olcott V. Tope, 213 111. 124; Ayers 99 Straw v. Barnes, 250 111. 481. 171 §172] ESTATES [Ch.IX not take.i In Straw v. Barnes,'' however, where the devise was to "my brother and sister or their heirs," the court reached a' different result and the heirs of a brother and sister, who died before the will was executed, were held to be entitled. § 172. (2) Where there is a preceding' life or other estate — Limitations in a conveyance intw vivos: Suppose the lim- itations are to X for life, remainder to "A or his heirs." If this be in a conveyance inter vivos, operating at common law, or under the Statute of Uses, A would, it is believed, take only a remainder for life with a contingent remainder over to his heirs if A died before X. But A would take only a life estate in remainder, while his heirs, if they became entitled, would take the fee. What results (if any) the English cases reached, are unknown to the writer. Under Sec. 13 of our Conveyancing Act, A would take the fee if he took at all. But the question arises Avhether "or his heirs" will not be treated as words of limitation so that A alone takes the fee without any gift over, if he dies before the death of the life tenant. One would sup- pose that since shifting gifts over by deed were valid, and since there was an obvious reason for a gift over in the fact that A might die before the death of the life tenant, the construction adopted where bequests of personalty were concerned* would be followed, and "or his heirs" would be construed as a gift to A's heirs if he died before the death of the life tenant. § 173. By way of devise : It seems to have been usually held, where the limitations were of personalty, that A took abso- lutely if he survived the life tenant. If he survived the testator but died before the life tenant, his heirs took absolutely.* Such was the holding in Eiey v. Adams.^ The same result has been reached where real estate was involved.^ 1 Theobald on Wills, 7th ed. 673. M'Dermott, 2 M. & K. 69; Beiff i'. 2 250 111. 481. Strite, 54 Md. 298, 304. 3 Post, § 173. 5 135 111. 80. * Doody V. Higgins, 2 K. & J. 8 Eobb v. Belt, 12 B. Mon. [Ky.] 729; Finlason v. Tatlock, L. E. 9, 643. See also Bates ■!;. Gillett, 132 Eq. Cas. 258; In re Craven, 23 111. 287, where the limitations were Beav. 333; Parsons v. Parsons, 8 to A for life, then to her child or Eq. 260; Neilson v. Monro, 27 W. its descendants, the descendants of E. 936 ; In re Stannard, Stannard v. each child to take one share. See Burt, 52 L. J. Ch. 355; Jacobs v. also the special concurring opinion Jacobs, 16 Beav. 557 ; Gittings v. of Cartwright, J., in Preston v. John- 172 Ch. IX] FEE SIMPLE [§173 There are good reasons in support of these results. First: The turning of "or" into "and," so as to make the gift "to A and his heirs," is a forced and unnatural process which prima facie does violence to the express language. On the face of it the phrase "to A or his heirs" has the meaning which has al- ways been attributed to it where the subject matter of the gift was personal property, — namely to create alternative limita- tions. Since Straw v. Barnes,'' in which it was held that a devise of real estate to brothers and sisters "or their heirs" naturally and primarily created distinct gifts to the brothers and sisters on the one hand, or to their heirs, if the brothers and sisters died before the testator or were dead at the date of the will, there is no reason for not taking the same phrase in the same way where the same limitations follow a life estate. /Sec- ond: The reason given for construing "A or his heirs" as "A and his heirs" where real estate is involved, was that if this had not been done when the question first arose in the 18th century. A, if he took, would have had only a life estate. This was regarded as so far from the expressed intent as to warrant the change of "or" into "and." Since the Wills Act of 1 Victoria, however, and since legislation on similar lines in this country, which make a gift to A simpliciter prima facie a fee, this reason fails, for now A, if he t^kes in possession at all, will take the fee, which will be indefeasible. If A does not take in possession, his heirs will take the indefeasible fee. Todaj'-, therefore, there is no more reason for not taking the language as it stands in its primary meaning than there was formerly where the subject matter of the gift was personal property. Third: Hawkins on Wills ^ and Theobald on Wills * both assume that for the reasons just indicated, the courts in England would today give the same construction to "A or his heirs" where the subject matter was real estate, as they regularly did where it was personal property. Fourth: This position is clearly main- tained by Wingfield v. Wingfleld,^'^ where there was a life estate son, 226 111. 447. In Golladay v. the remainder was to children or Knock, 235 111. 412, a remainder to issue. "Moses and his heirs," was treated , '250 111. 481. as if it were to "Moses or his s p. igo. heirs." See post, §§323, 382. In 9 6th ed. 400. Brechbeller v. Wilson, 228 111. 502, loL. E. 9 Ch. Div. 658. 173 § 173] ESTATES [Ch. IX in a mixed fund of real and personal property, and a remainder after the life estate to the testator's brothers and sisters then living "or their heirs." It was held that the gift was substitu- tibnary. Hall, V. C, suggested that before the Wills Act the remaindermen might have had a fee, because otherwise they would have had only a life estate if they took possession at all, and that a different rule should obtain after the Wills Act. The earlier cases of Wrighi v. Wright and Lachlan v. E^ynolds were distinguished." There are, of course, cases where courts have been persuaded by a special context, ^^ or the fact that the testator was obviously illiterate,!^ to hold that "or" was to be read "and" and that A took the fee without any alternative or substitutionary gift over.!* j^ happens in these cases that real estate was involved and recently our Supreme Court seems to have proceeded as if, where real estate was involved, these cases not only repre- sented the general course of decision (apart from any special context), but also established a rule of construction which it would be difficult for a special context to overturn. In Ortmayer V. Elcock,^^ there was presented for construction the phrase "or their heirs, if deceased," where the limitations were in substance to A for life, then to B, C, D and E, "or their heirs, if deceased." The court held that B, C, D and E took at once vested and indefeasible interests in fee, subject to the life estate, 11 See also Plournoy v. Plournoy, 1 G. P. & J. 128 ; Parkin v. Knight, Bush (Ky.) 515; Taylor o. Conner, 15 Sim. 83. It made no difference 7 Ind. 115, and Eobb i). Belt, 12 B. in the above cases that the gift of Mon. (Ky.) 643, for cases tending real estate was included in a mixed in the same direction as Wingfleld fund of real and personal property, V. Wingfleld, supra. as where the gift was a residue of 12 Wright V. Wright, 1 Ves. Sr. real and personal property "to B 409; Lachlan v. Eeynolds, 9 Hare for life, and then to A, or his heirs." Ch. 796. Greenway v. Greenway, 2 De 6. P. 13 Miller v. Gilbert, 144 N. Y. 68. & J. 128 ; Parkin v. Knight, 15 Sim. 1* See also Williams v. Williams, 83; Sloan v. Hanse, 2 Eawle (Pa.) 91 Ky. 547 ; Brasher v. Marsh, 15 28. The rule seems to have obtained Ohio St. 103. after the passage of the Wills Act Where the gift was "to A or of Victoria, making a simple gift the heirs of his body" or "to A to A prima facie the gift of a fee or his issue," it has been held ih&t simple. Harris v. Davis, 1 Coll. A had an estate tail. Bead v. Snell, 416; Greenway v. Greenway, 2 De 2 Atk. 642; Harris v. Davis, 1 Coll. G. P. & J. 128. 416; Greenway v. Greenway, 2 De 15 225 111. 842. 174 Ch. IX] PEE SIMPLE [§175 and that there was no gift over to their heirs in case any of them died before the termination of the life estate. ^"^ Even, how- ever, if the distinction should obtain in this state thait a gift "to A or his heirs" means one thing with regard to realty, and another with regard to personalty, and that the same language may have two different meanings when applied to a mixed fund of realty and personalty, still the decision reached in Ortmayer V. Elcock is inexplicable. The special context may always make it clear that a substitutionary or alternative gift was provided. Thus, in Speakman v. Speahnan ^'' there was a gift to A for life with a remainder to B, C and D "or their heirs of anyone that might happen to pe dead. ' ' It was held that the language here was too explicit to -avoid construing "or their heirs" as introducing a substitutionary gift.. It is submitted that the addition of the words "if deceased" in Ortmayer v. Elcock presents a special context in all respects similar and quite as strong as that appearing in Speakman v. Speakman.^^ §174. Meaning of "or his heirs" where the words intro- duce a substitutionary gift: Having determined that "or his heirs" makes a substitutionary gift where the limitations are to A for life, then to B or his heirs, the phrase "or his heirs" must be expanded to "or in case of," or. "at" B's death, to his heirs. The question then arises, to what period does ' ' death ' ' refer. If it refers to death at any time it might cut A's interest down to a life estate, which is out of the question. Nor can it be confined to the death of B during the testator's life only. It means death of B before the period of distribution. Hence if A renounces the life estate so that B's remainder is acceler- ated, no gift over can occur. ^^ § 175. (3) Where there is a preceding life estate with gifts over on contingencies with an ultimate gift over to "A or his heirs": In such a case the context raises a legitimate inference that the ultimate gift is really to A and that "or his heirs" is merely an informal effort to add words of limitation which signify that if A's heirs take, they take by descent from 16 See, however, the special con- Jac. & W. 381 ; Bichey v. Johnson, curring opinion of Cartwright, J., -SO Ohio St. 288; Bates v. Gillett, in Johnson v. PreSton, 226 111. 447. 132 111. 287. " 8 Hare 180. is Sherman v. Plack, 283 111. 457. 18 See also Horseman v. Abbey^ 1 175 § 176] ESTATES [Ch. IX him and not as independent purchasers. Such a result has been reached in this state where the limitations were created by will.^o § 176. (4) Where the tiltimate gift is to the grantor "or his heirs": In such a case, a reversion is created in the grantor. 21 So where the provision is that the land is to revert back to the grantor's heirs, a reversion is created in the grantor.22 TITLE IV. CONFLICTING PROVISIONS— CONFLICT BETWEEN THE PREMISES AND THE HABENDUM. § 177. Courts attempt to reconcile apparently conflicting clauses: ^^ "Where the same land was devised to two differ- ent persons, both took as tenants in common.^'* So where A was devised a life estate in lands and later, without reference to the life estate, the same lands were devised to B in fee, B took only a remainder.^^ So where A was devised forty acres and then all the testator's lands were dcA'^ised to a named person in fee, with a direction that they be sold after A's death, A took the fee to the forty acres and the later clause was held to devise only the lands excepting the forty acres. -/^ Where the premises of a deed granted to "A and the heirs of his body" and the habendum was to "A and his heirs," the opinion of Lord Coke was that A took a fee tail with a remainder in fee.^' Our Supreme Court would hardly regard similar limitations as reconcilable in this manner for the reason that estates tail have long since been abolished in this state and turned into estates for life with remainder to the life tenant 's children in fee ^^ 20 Smith V. Dellitt, 249 111. 113. apparent conflict by holding that it 21 Hobbie v. Ogden, 178 111. 357. was the life estate which the widow 22Akers v. Clark, 184 111. 136. was to hold absolutely. Kratz v. 23 Eckhart v. Irons, 128 111. 568. Kratz, 189 111. 276. Observe the following eases where 24 Day v. Wallace, 144 111. 256. it was held that there was no con- 25 Rickner v. Kessler, 138 111. 636 ; flict between the premises and the Rountree v: Talbot, 89 111. 246. habendum. Jones v. King, 25 111. 26 Brownfield v. Wilson, 78 111. 334; Cooper v. Cooper, 76 111. 57. 467. Where there was a devise to the 27 Co. Lit. 21a; see also Corbin widow 'during widowhood, to hold v. Healy, 20 Pick. 514 (Mass..l838). absolutely, the court reconciled the 28 Post, § 406. 176 Ch. IX] FEE SIMPLE [§ 178 and the gift over or remainder in fee after the estate tail may be regarded as destroyed by the statute.^s § 178. Where an actual conflict occurs — (1) The rule as to deeds — The view of the common law: It was a well settled common-law rule of long standing that if the premises and habendum of a deed contain different express limitations of the estate which are repugnant to each other, the construction which is most beneiicial to the grantee will be adopted.^" Pursuant to this rule the hahendum where such repugnance occurs may enlarge an estate expressly contained in the premises, but may not abridge or make void any such estate, ^i The clearest case for the application of this rule seems to have been where the premises contained an express grant of a fee simple by the use of the words "to the grantee and his heirs," while the habendum was "to the grantee for life" or for a term of years. In such a case the grantee took the fee.^^ From the English writers and cases it would appear that this rule was one of marked rigidity. If the premises expressly designated the fee and the habendum a life estate, no extended argument from the sur- rounding circumstances that the grantor meant a life estate would have been effective to prevent the. creation of the fee. As Challis^'' states it: "The habendum cannot abridge any estate contained in the premises, unless such estate either is not ex- pressly contained, or else is not capable of taking effect. ' ' This he shows is the result of the authorities.^* The same rule has often been referred to by our Supreme Court.^^ § 179. The common law rule, how far modified — Where the premises provide for the lesser estate and the habendum for the larger: Suppose the premises grant an estate to A and zoKolmer v. Miles, 270 111. 20; U. C. Q. B. 405; Langlois v. Les- 13 111. Law Eev. 132 ; post, § 411. perance, 22 Ont. Eep. 682. 80 Elphinstone, Interpretation of as Baulos v. Ash, 19 111. 187 ; Eig- Deeds, Eule 66, p. 217. gin v. Love, 72 lU. 553, 555; Jones siOhallis, Eeal Property, ch. 30. v. King, 25 111, 334, 337; Cooper v. 32 Winter i;. Gbrsuch, 51 Md. 180; Cooper, 76 III. 57, 61; Eekhart v. Eobinson. ■«. Payne, 58 Miss. 690; Irons, 128 111. 568, 580; Lairibe ■!;. Eatliffe «. Marrs, 87 Ky. 26; Smith Drayton, 182 111, 110, 113; Sassen- V. Smith, 71 "Mich. 633; Wood v. berg v. Huseman, 182 111. 341, 350; Taylor, 30 N. Y. Supp. 433. Welch v. Welch, 183 111. 237, 338 ; 33 Eeal Property, ch. 30. Anderson v. Stewart, 285 • 111. •605, 3* See also Owston v. Williams, 16 611. Kales Fut. Int. — 12 jyy § 179] ESTATES [dn. IX the heirs of his body, while the habendum pi'ovides for an estate to A and his heirs and assigns forever, and suppose these clauses cannot be regarded as reconeilable.^s It has been held that A takes the fee.^'' In Griswold v. Hicks,^^ the deed in question recited that it was between A, party of the first part, and B, C and D "and the heirs of their bodies, party of the second part." By the premises the conveyance was to B, C and D "and their heirs and assigns, as aforesaid, forever * * * meaning and intending by this conveyance to convey to my said children the use and control of said real estate during their natural lives and at their death to go to their children; should they die without issue to their legal representatives;" habendum to the party of the second part "their heirs and assigns forever." It was held that B, C and D took life estates with the remainder to their children. One ground for this was that "heirs and as- signs as aforesaid" meant "heirs of the body," as aforesaid. Hence by the premises an estate tail was created which the statute tux-ned into a life estate with a remainder to the donee's children. The case, therefore, is not an instance of the premises conveying the lesser estate prevailing over the habendum which designated the larger. Another ground for the decision was that on the whole context it was the expressed intent that B, C and D should have only life estates with the remainder to their children and that this actually expressed intent must pre- vail. This ground is hardly consistent with the strict and arti- ficial rule that the habendum which described the larger estate would prevail over the premises which described the lesser. In Cooffan v. Jones ^* the deed conveyed and warranted to A ' ' and her bodily heirs, ' ' reserving a life estate in the grantor, and "at his death, then the above described tract of land to go into full ownership and control" of the said A "or her heirs." If "full ownership and control" meant a fee, then the latter clause conflicted with the former but enlarged its meaning. Under the common law rule the habendum could be used to enlarge but not restrict the estate designated by the premises. 39 Ante, § 177. 38 133 m. 494. 31 Tennison v. Walker, 190 S. W. ao 27is m 279. 9 (Mo. 1916). 178 Ch. IX] FEE SIMPLE [§ 181 By that rule a fee would have been created.**' But the court held that a fee tail was created. This may proceed upon the ground that " full . ownership and control" meant only full ownership and control of the estate already created, namely, a fee tail, arid that A or her heirs, meant A or the heirs of her body. § 180. Where the premises provide for the larger and the habendum the lesser estate — Modification of the common law rule by statute: Where a statute provides "if two clauses in a deed be utterly inconsistent, the former must prevail, but the intention of the parties, from the whole instrument, should, if possible, be ascertained and carried into effect," *^ the haben- dum which mentions a life estate prevails, as a matter of course, over the premises designating a fee simple by the use of the words "to the grantee and his heirs." ** So also where the fee in the premises is created by the force of Sec. 13 of our Con- veyancing Act without the use of the word "heirs," then, since the statute throws the whole deed open to take effect according to the expressed intent, the habendum may be relied upon al- most as a matter of course to create a life estate.*^ § 181. Tendency apart from statute to modify the strict- ness of the common law rule: In this country, the courts have seemed disinclined to follow the common law rule in all its strictness. Even where the court held that a fee had been created according to the premises by the use of the word "heirs" as a word of limitation, it will be found asserting its authority to find that a life estate had been created by the habendum if from the whole context such was the expressed intent.** In several cases courts have supported the holding that a fee had *» Comyare, Duffield v. Duffield, inefEective to create a fee tail. If 268 III. 29. effective to create a fee in aceord- *i 6a. Code 1867, sec. 2655. ance with the view expressed, post, *2 Eemshart v. Ham, 40 6a. 344. § 198, by the operation of sec. 13 of *3 Humphrey v. Poster, 13 eratt the Conveyancing Act, then it was (Va.) 653; Eiggin v. Love, 72 111. proper for the court, in accordance 553; Welch v. Welch, 183 111. 237; with the above cited cases, to resort Sassenberg v. Huseman, 182 111. to the habendum to determine the 341 ; Coogan v. Jones, 278 111. 279, character of the estate created. 285; Anderson v. Stewart, 285 111. **Eobinsori v. Payne, 58 Miss. 605, 611. 690, 709; Ratliffe v. Marrs, 87 Ky. In Dick V. Kicker, 222 111. 413, 26. the. granting clause of the deed wasi 179 §181] ESTATES [Ch. IX been created according to the premises, not upon the rule of construction alone, but also on the ground that such on the entire context was the expressed intent of the grantor.* ^ it has been held that where the premises grant to another "his heirs and assigns forever subject to the limitations hereinafter ex- pressed as to part thereof" the habendum directing a life estate as to one-half prevailed over the premises.*" Repeated instances are to be found where the premises contain an express grant of a fee, but where the lesser estate expressed in the haben- dum prevailed because it was deemed to express the actual in- tent of the grantor.*' Where a fee tail was created according to the premises, but the habendum indicated a fee, a holding that A took the fee has been supported upon the ground that all parts of the deed were equally to be considered in deter- mining the expressed intent.** In Miller v. Mowers *" the deed in question reads as follows r The grantor granted unto the party of the second part "her heirs and assigns" certain described real estate "to have and to hold the said premises above bargained and described with the appurtenances, unto the said party of the second part, her heirs and assigns during her natural lifetime." The words italicized were written in longhand and the other words were part of the printed form. There was not here a mere repug- nance between the premises and the habendum, but the premises and the first half -of the habendum both were equally appro- priate for the creating of a fee simple estate and the words suggesting the limitation of a life estate were really part of the habendum and inconsistent with the beginning of the haben- dum itself. The holding of the court then that the grantee took only a life estate was a particularly striking failure to apply in all its original rigidity the rule of construction. The action of the court was rested wholly upon the fact that the sur- rounding circumstances and inferences from the face of the deed showed that the creation of a life estate was expressly ■15 Smith V. Smith, 71 Mich. 633; Ky. 379; Higgins v. Wasgatt, 34 Winter v. Gorsuch, 51 Md. 180. Me.. 305. 46 Tyler v. Moore, 42 Pa. St. 374. is Tennison v. Walker, 190 S. W. 47Berridge v. Glassey, 112 Pa. St. 9 (Mo. 1916), 16 Law Series Mis- 442; Moss v. Sheldon, 3 W. & S. souri Bulletin 31. (Pa.) 160; Hendersons. Maek, 82 49 227 111.392. 180 Ch. IX] FJEE SIMPLE [§ 182 intended. The court laid special stress upon the fact that the words of the haiendum "during her natural lifetime" were written into the printed form, and applied the rule that, where there is a conflict between the written and printed portions, the written must prevail.^'' This last was not so strong because before the word "heirs" in the premises and habendum the word "her" was written in full, showing that the word heirs had been read and noted, and this was fortified also by the' fact that the word "forever" after "heirs and assigns" in the habendum was crossed out. The decision of the court M^ould seem then to come very near holding that the rule relating to a conflict between the premises and the habendum gives way readily to what the court on all the evidence deems the true expressed intent. In Doney v. Clipson ^i the deed ran to A and the heirs of his body, to have and to hold to A for life and then to the heirs of his body. The only question was whether A had a life estate or a fee. It was clear that he did not have a fee. He had a life estate whether the granting clause or the haben- dum prevailed. §182. (2) Where devises are involved: Where incon- sistent expressions creating different estates occur in a will, there never has been any rigid rule that what might correspond to the habendum of a deed should not be permitted to cut down or abridge an estate devised by language which might corre- spond to the premises of a deed. Not only was there no mention of such a rule relating to the construction of devises in Jarman on Wills or Theobald on Wills, but at least one Engtish judge has particularly noted the fact that, in a deed, of two repug- nant provisions the first prevails, while in a will the rule is that the last will be taken.^^ Furthermore, the older and more arti- ficial rules regarding the effect of language in a conveyance inter vivos have never been operative where the transfer was 50 American Express Co. v. Pinek- 52 Doe v. Biggs, 2 Taunt. 109, ney, 29 111. 392; People D.Dulaney, per Sir James Mansfield, C. J. See 96 111. 503; Loveless v. Thomas, also Hamlin v. United States Ex- 152 111. 479; McNear v. MeComber, press Co., 107 111. 443; Jenks v. 18 la. 12; Eeed v. Hatch, 55 N. H. Jackson, 127 111. 341, 350; Harris v. 327. Ferguy, 207 IlL 534, 539. 51 285 111. 75. 181 § 182] ESTATES [Ch. IX by devise.^ 8 The principle always applied has been that the expressed intent as it appears from the whole instrument must prevail. To this has been added the rule that in case of irre- concilable conflict, the later expressions in the will are preferred to the earlier as indicating the intention expressed.^* Thus in Siegwald v. Siegwald,^^ the testator devised to his wife all his real and personal estate "in fee simple absolutely forever, that is to say, — ^that my said wife shall have all of the benefits there- of until the expiration of her life," at which time the testator's son should be the only heir of what might be left. It was held that the wife took a life estate only. So in Wallace v. Bozarth '« the testator devised all the residue of his property "absolutely and in fee simple to my wife, Samantha Poole, for life, after her death to be equally divided between my three heirs. "'^ This was held to give the wife only a life estate. Since Miller V. Mowers,^^ these results should be regarded as in line with the court's usual course of decision on contexts presenting similar conflicts. Two cases, however, appear in the reports which seem to be out of line and to require special notice. In Lamhe v. Drayton ^^ a will was presented to the court for construction which contained a devise to the testator's wife and ' ' her heirs and assigns ♦ * * To have and to hold * * * to my said wife * * * (during) her lifetime." It was held that the wife took by this an estate in fee and the court seemed to go not upon what it deemed the expressed intent of the testator, biit upon the hard and fast rule of construction relating to the effect of the habendum of a deed when it conflicts with the premises and purports to give a less estate. Such a rule never did prevail in regard to wills, and, since Miller v. Mowers,^" it must be doubtful whether it still applies in this state as to deeds. 53 Co. Lit. 9b, lOa. bs 37 m. 431. 64 Samlin v. United States Ex- se 223 111. 339. press Co., 107 111. 443; Jenks v. 5' Siddons v. Cockrell, 131 111. Jackson, 127 111. 341, 350; Harris 653. V. Ferguy, 207 111. 534, 539; Mur- 58 227 111. 392; ante, §181. fitt V. Jessop, 94 111. 158; Rountree 59 182 111. 110. V. Talbot, 89 111. 246, 249. Com- 00227 lU. 392; ante, §181. pare, however, Little v. Bowman, 276 111. 125. 182 Ch. IX] FEE SIMPLE [§183 In Bissman v. Wierth*^^ "all the rest, residue and remainder of my estate both real and personal" was devised to the tes- tator's "beloved wife," Sibilia "to hold and to have" "to her, my said wife, and to her heirs and assigns forever." Other clauses of the will appear in the report marked 2nd, 3rd and 4th. If we stop with the words "heirs and assigns forever" Sibilia clearly took the fee. The premises carried the fee and the haben- dum confirmed it. If, however^ we stop at the end of the clause mai'ked 2nd, or the clause marked 3d, then Sibilia took a fee subject to an executory devise over on her marriage, which, however, never occurred and, therefore, this gift over never took effect. When, however, we add the 4th clause we find a gift if Sibilia does not marry, to her ' ' until her death and after her death the residue shall be devided" to named persons. This clause makes the case not only one where the last expressed intent is that the wife shall have a life estate, but also one Avhere there is a gift over on two contingencies which exhaust all the possibilities,- — i. e., Sibilia marrying or not marrying, — so that under the rule already discussed '^^ Sibilia would have had only a life estate. The court, however, reached the result that Sibilia had an indefeasible estate in fee simple. This defeats and dis- regards a clearly expressed gift over. The discussion of the Rule in Shelley's Case by the court is, it is submitted, without justi- fication. The handling of the language of the will in question represents a course which cannot be relied upon to be repeated. TITLE V. ESTATE WHICH A TEUSTBE TAKES. § 183. Introductory-: In many cases where courts venture an opinion as to the estate which the trustee takes, the point will be found on analysis not to be material.* ^ Much dicta may thus be discarded. A few of the instances where the estate which the trustee takes becomes of vital importance are as follows : If the trustee takes the fee in trust for A for life and then in trust for A's heirs, so that all tne beneficial interests are equitable, the Rule in «» 320 UL 181. 63 See Ebey v. Adams, 135 III. 80, 6Mn. Welch, 175 Mo. App. Tillinghast, 25 E. I. 338; King's 303 ("to my beloved daughter Heirs v. King's Adm., 12 Ohio 390; Agnes Farley, and the heirs of her Williamson v. Daniel, 12 Wheaton body"); Crawford v. Wearn, 115 568; Stockton v. Martin, 2 Bay (S. N. C. 540 (to A for life and then C.) 471; Hughes v. Nicklas, 70 Md. to the heirs of A's body); Clemens 484; Polk v. Faris, 9 Terg. (Tenn.) li. Heeksfeher, 185 Pa. St. 476. 209 ; Pressgrove v. Comfort, 58 io Ante, § 162. But see Duffleld Miss. 644; Hampton v. Bather, 30 - v. Duffield, 268 111. 29. Miss. 193 ; Powell vi Brandon, 24 " 4 111. Law Rev. 642. Miss. 343;' Smith v. McCormick, 46 203 20O] KSTATES [Ch.X A's body, so that A would have a life estate with a gift over to the heirs of his body. What the court will do where per- sonal property is limited "to A and the heirs of his bodyf remains in doubt.*^ § 200. Suppose the limitationB of personalty are to "A and his issue" or to "A and the issue of his body": When the courts in England and in this country have had to deal with limitations to "A and his issue" (or to "A and the issue of his body," which is the same), they have regularly declined to regard the words "and his issue" or ''and the issue of his body" as words of limitation indicating an attempt to create an estate tail. They have, on the contrary, taken these expres- sions as primarily words of purchase.*^ Usually A and his issue who are in esse have been held to take absolutely as tenants in common.** In a few instances a special context has seemed to require that A take an estate for life with a gift over to the issue of A at his death.*^ Where the gift is to a class of persons "and their issue" at a future period of distribution, the "issue" have been held to take only in place of members of the class dying before the period of distribution.*® *2 It should be observed, however, that in Duffield v. Duffield, 268 111. 29 {ante, §196), where in a deed conveying real estate the grantee was described as Henry "and the heirs of his body ' ' and the grant was to "said grantee," our Su- preme Court intimated that , ' ' heirs of the body" was used as words of purchase, and that an attempt was made to create a joint estate in Henry and the heirs of his body; that Henry took the fee alone be- cause "heirs of his body" could not be ascertained until his death and the attempted conveyance to grantees not in esse when the deed took effect failed, according to a doctrine followed in this state. See post, §§475, 476. *3ln re Coulden L. R., [1908] 1 Ch. 320; 2 Jarman on Wills, 6th. ed. by Sweet, vol. 2, 1930; Theo- ,bald on Wills, 7th ed. p. 478; Haw- kins on Wills, 2nd ed. by Sanger, 241. In Parkin v. Knight, 15 Sim. 83, where a different result was reached, real and personal property were given together and as to the real estate, the words "and issue" were regarded as intended to create an estate tail and were capable of so doing in England at the time. Nev- ertheless, the soundness of the case as applied to personal property is now doubted in Hawkins on Wills, 2nd ed. by Sanger, 241. See also Howston V. Ives, 2 Eden 216. ** Hawkins on Wills, 2nd ed. by Sanger, 241 ; Theobald on Wills, 7th ed. 478; McDavid v. Bohn, 212 111. App. 534. ■*s Cleveland v. Havens, 13 N. J. Eq. 101. See also Seymour ti. Bowles, 172 111. 521. "e/ji, re Coulden L. R., [1908J 1 Ch. 320. 204 CHAPTER XI. ESTATES FOR LIFE. TITLE I. BY EXPEESS WOBDS. § 201. Life estate defined: A life estate is one for an un- certain duration and not an estate at will or a fee simple determinable. An estate at will is one at the will of both par- ties.i An estate at the will of one party is usually construed to be at the will of both parties.^ If, however, an estate is at the will of one party only, it is an estate for an uncertain period and not an estate at will. It is therefore classified with life estates as a freehold.^ § 202. Life estates created — B7 words explicitly : Any words which indicate explicitly that one is to hold for an Un- certain period, but not at the will of both the grantor or rever- sioner and the transferee, will create a freehold or life estate. Practically the usual formula is to limit an estate "to A for his life."* A devise to- a wife during widowhood,^ or so long as she remains unmarried® creates a life estate in the wife for the period indicated.'^ It makes no difference that the gift 1 Co. Lit. 55a ; 3 Gray 's Cases on erts v. Eoberts, 140 111. 345 ; Prop., 2nd ed. 315. Springer v. Savage,^ 143 111. 301 ; 2 Co. Lit. 55a. Gaffield v. Plumber, 175 111. 521; s.Beeson v. Burton, 12 C. B. 647 Bowerman v. Sessel, 191 111. 651; (1852); 3 Gray's Cases on Prop., Eadebaugh v. Eadebaugh, 266 111. 2nd ed. 311. 199; The People v. Freese, 267 III. *Fainnan v. Beal, 14 111. 243; 164; Geist v. Huffendiok, 272 111. Batterton v. Yoakum, 17 111'. 288; 99. Boyd V. Strahan, 36 111. 355; Mul- s Green v. Hewitt, 97 111. 113; berry v. Mulberry, 50 111. 67; New- Kratz v. Kratz, 189 111. 276. man v. Willetts, 52 111. 98 ; Mather e Cowman v. Qlos, 255 lU. 377. V. Mather, 103 111. 607; Eailsback 'But in Cummings v. Lohr, 246 V. Lovejoy, 116 111. 442; Kaufman 111. 577, where the devise was to the V. Breckinridge, 117 111. 305; Walk- wife "provided she remains my er u. Pritchard, 121 111. 221; Sid- widow," the widow took a fee sub- dons V. Coekrell, 131 111. 653 ; Eob- jeet to an executory devise over. 205 §203] ESTATES [Ch.XI over is "after her death."* A lease for ten years after the death of A,* or for five years and as much longer as oil and gas is produced by the land^" create freehold or life estates for the periods indicated. In Geist v. Huffendick ^i where land was devised to two daughters for their lives and the interest of each to descend to her heirs, it was held that each took an estate for the life of the longest liver as tenants in common and that on the death of either, her interest till the death of the other descended to her heirs. § 203. Expressly by construction: The cases of life estates expressly created by construction have been largely dealt with in drawing the line between language which creates a life es- tate and that which is sufficient to limit a fee simple. ^^ In addition to the cases already referred to, notice should be taken of the following. In Thompson v. Mason,^^ there was in question a devise of the net income to the ■Wife until the majority of the testator's youngest child,, "which one-third is to be for her dower in my estate," This was held to give the wife a life estate, which ceased at her death, before the youngest child reached twenty- one. The special context relied upon was that the income was to be for her dower. That indicated, by reference to the primary meaning of dower, an estate for not longer than the widow's life. In Des Boeuf v. Des Boeuf,^* the testator provided that the balance of his estate^ both real and personal, should "descend to my wife, Julia, and my son [naming him], as the statutes of the state of Illinois provide." Under the statute, the son being the only heir, took the fee and the wife had only her dower interest in one-third during her life. It was held that the wife and the son took interests in this manner. The reference to the statutes of the state of Illinois was sufficient not only to fix the proportion of the whole estate which each took, but also to determine the character of the estate of each. 8 De V,itto V. Harvey, 262 111. 66. n 27^ 111. 99. 9 Hull V. Ensinger, 257 111. 160. i^ Ante, §§160 et seq. 10 Daughetee v. Ohio Oil Co., 26.3 i3 61 111. 208. 111. 518. 1*274 111. 594. 206 Ch. XI] , LIFE ESTATES [§203 In Lomax v. Shinn,^^ there was a devise to a wife of certain described re^l estate in general terms sufficient to confer the fee under Section 13. There followed a devise of "all the per- sonal property" and a further devise of "the balance of my estate" to the wife for life, with gifts over. Upon proof that the testator had no other real estate except that particularly described, it was held that "balance of my estate" referred to the real estate already specifically described and gave the wife only a life estate in it. In Rose v. Hale,^^ on a very special context, words limiting personal property to a widow during widowhood were held to apply also to a previous devise of real estate. In Morrison v. Schorr,^"^ the testator devised specifically de- scribed real estate to his wife for life "also all rents, income and profits arising from all my real estate" except the specifi- cally described property already devised, until "the eldest one of my children has attained the age of eighteen * * * after which my wife shall recover one-third only of the net rents and income of such real estate, the other two-thirds to be paid to and equally divided among my children." In a subsequent clause, the testator devised, "all my real estate to my children by my present wife in equal shares." It was held that while a gift of rents and profits to the wife was equivalent to a gift of an estate of some sort, and while under Section 13 that estate would, -prima facie, be a fee simple, yet on the whole context the estate devised was only for life. The gift of all the testator 's real estate to his children indicated that the wife 's estate was restricted. The word "also" was read "in like manner," so that the wife took the same estate by the gift of the income that she had taken in the specifically described real estate. ^* ^ In Stvaim v. Swaim,^^ where the devise was of real estate to the wife simpliciter, followed by these Avords: "I also be- queath" personal property "to be held by her until her death," the wife took a life estate only in the realty. 15 162 111. 124. that a direction that the share of i« 185 111. 378. a daughter -should "always remain 17 197 111. 554. ' in trust" meant a trust only during 18 In Guerin v. Guerin, 270 III. the life of the daughter, 239, it was intimated by the Court is 284 111. 105. 207 § 204] ESTATES [Ch. XI TITLE II. IMPLICATION OF LIFE ESTATES, DISTRIBUTIVE CONSTRUCTION AND DISPOSITION OP INTERMEDIATE INCOME. § 204. The problems stated: Suppose a testator makes a devise or bequest to take effect after the death of A, without, •however, expressly giving any interest to A. Does A take a life estate by implication % If not, what happens to the income or the rents and profits? Suppose a testator devise Blackacre to A for life and after the death of A Blackacre together with other property is devised to B. Here three questions at once arise. Does A take a life estate by implication in the property other than Blackacre ? If not, then are the words "after the death of A" to be taken distributively so that they will apply only to - Blackacre, thus making a devise of the rest of the estate to take effect in B immediately upon the testator's death? If there is no impli- cation of a life estate to A and no distributive construction, then what becomes of the intermediate income of the property other than Blackacre until A's death? These cases show the way in which the questions to be con- sidered may arise and also the way in which three apparently unconnected subjects may in fact come up for consideration in a given case. Obviously also the difficulties presented in the cases put must in most instances be caused by the failure of the testator's mind to work upon the effect of the language used under the circumstances which will probably be presented. Clearly the circumstances surrounding the making of the in- strument can be of no particular benefit in throi^ing light upon the expressed intent. The rules, therefore, established by the cases must be regarded as supplying results independently of any actual intention on the part of the testator. They should, therefore, be adhered to as establishing definite rules of con- struction, not to be departed from unless ^ real special context warrants \\. § 206. Implication of the life estate where there is a gift after death of A: Where the gift after the death of A is to all of the testator's heirs at law (if real estate is ijjvolved), or to all the next of kin (if personalty be involved)— no more and no less — and there is no special context affecting the mat- 208 Ch. XI] LIFE ESTATES [§205 ter, a life estate in A is regularly found. ^o The reason for this was that since the heir was expressly excluded till the death of A, an incongruity or absurdity would arise if, before the death of A, the heir were let in to enjoy the estate because of an intestacy. The only way to prevent this absurdity or incon- gruity was to give a life estate to A. The b^sis for the regular implication of the life estate in these cases is the incongruity which would otherwise arise. Any circumstances, therefore, which eliminate that incongruity necessarily prevent the ap- plication of the general rule in favor of the implication of the life estate. For instance, if the gift after the death of A be to one who is not the testator 's heir at law, and there be no special context, no estate for life in A can be implied.^^ How- ever plausible it may be that A was intended to take a life estate, that inference is mere speculation and conjecture, and insuf- ficient as a basis for implying the life estate in A. Suppose a gift be made to all the testator's heirs at law and no others from and after the death of A, and thereafter a residuary clause is added, so that if it be held that there is no gift to A by im- plication the residuary devisee will be entitled. If the residuary devisee is not the same as the heir or heirs at law it would seem that no gift to A for life could be implied, for again the in- congruity has been eliminated. 22 The same is true if property 20 (a) Cases where real estate was 21 Aspinall v. Petvin, 1 S. & St. involved and the gift after the death 544 (1824) ; Bamet v. Barnet, 29 of A was to the testator's heirs at Beav. 239 (1861); Harris v. Du law: 1 Jarman onWills (6 ed. Bige- Pasquier, 26 L. T. 689 (1872); low), *49S, 499, and many cases Greene v. Flood, 15 L. B. Ir. 450 there cited, to which may be added (1885) ; Doughty v. Stillwell, 1 the following: Doughty v. Stillwell, Bradf. 300, 310 (1850). But see 1 Bradf. (N. Y.) 300, 310; White Willis v. Lucas, 1 P. Wms. 472, of V. Green, 1 Ired. Eq. (N. C.) 45; , which case Jarman says -(1 Jarman, Macy V. Sawyer, 66 How. Pr. 381; 6 ed. Bigelow, *499, n. b.) : It Kelly V. Stinson, 8 Blackf. (Ind.) "seems inconsistent with, and is 387; Eathbone «. Dyckman, 3 Paige, overcome by the mass of authori- Ch. 8, 27. ties. The point indeed was not defl- (b) Cases where personalty was nitely disposed of." involved: 1- Jarman on Wills (6 ed. =2 Oranley v. Dixon, 23 Beav. 512; Bigelow), ""SIC, 511; James V. Shan- Hudleston v. Gonldsbury, 10 Beav. non, Ir. R. 3 Eq. 118. Contra, die- 547. turn of White v. Green, 1 Ired. Eq. (N. C.) 45. Kales rut. Int. — 14 209 § 205], ESTATES [Ch. XI is appointed from and after the death of A, but there is a gift in default of appointment which will take effect as to the interest prior to A*& death .2 s Again, suppose that the gift after the death of A is itself a residue of personalty or a mixed residue of realty and personalty, so that according to the usual rule ^* if A does not take a life estate by implication the intermediate income must accumulate and pass to the one ultimately en- titled. Here the fact that the one entitled after the death of A is the testator's heir at law or next of kin — no more and no less — presents no incongruity whatever. Hence there can be no basis for the implication of a life estate according to any general rule.^^ ' If the gift after the death of A is to part only of the heirs at law or next of kin of .the testator, or to all the heirs at law or next of kin and to a stranger there is less incongruity than in the case where the gift after the death of A is to the heirs at law or next of kin — no more and no less. There is less incongruity in all the heirs at law being let in during the life of A and then part only allowed to take after the death of A, or all allowed to take together with a stranger after the death of A, than there is where the heirs at law are let in until A's death and then the same heirs at law take after A's death. At first there was an inclination to imply the life estate in A readily, even where the gift after the death of A was to part only of the heirs at law or to all the heirs at law and a stranger. This seems to have been the attitude of the English judges in the eighteenth century.26 In the first three-quarters of the nineteenth century we have a period of clearly conflicting opinions. In 1862, Kindersley, V. C, in Stevens v. Hale,'''' held that where the gift after the death of A was to the testator 's heirs and strangers, no life estate would be implied. On the other hand, in 1867, Stuart, V. C, in Humphreys v. Humphreys/'^ held that where the gift was to part only of the next of kin of the testator the 23 Henderson v. Constable, 5 Beav. 5 Burr, 2608 ; Bird v. Hunsdon, 2 297. Swanst. 342. 24 Post, § 208. 2^2 Dr. & Sm. 22.. See also Eom- 25 Cf. Ealph V. Carrick, 5 Ch. Div. illy, M.E., in 'Barnet v. Barnet, 29 984, per Hall, V. C. Beav. 239. 20 Koe d. Bendale v. Summerset, 28 l. k., 4 Eq. 475. 210 CH. XI] LIFE ESTATES [§205 life estate would be implied.^^ Finally in 1879 Ralph v. Car- rick 30 seems to have settled the law in England that where the gift is to all the heirs at law or next of kin of the testator and a stranger after the death of A, no life estate in A will be im- plied. Thereafter it was held with equal firmness where the gift after the death of A was to less than all the next of kin or heirs at law that the life estate would not be implied.*^ Thus the English judges, from implying the life estate loosely as the result of what they guessed to be a probable intention on the part of th^ testator, came to regard such implication as rather the result of speculation and conjecture and as leaving the rights of parties too much in the discretion of individual judges. Accordingly they substituted in its place a definite rule designed to supply a recognized gap either in the testator's intention or in his 'expression of intention, or both. There may, of course, be cases containing a special context sufficient to support the inference of a life estate in A apart from the application of any rule by which such life estate is regularly implied. ^^ So there will be cases where all the ele- ments are present for the regular implication of a life estate but where a special context will negative any such implication.*^ This is, very likely to be the case where a particular property is given to A for life and then after the death of A that, to- gether with other property, is given to the testator's heirs at 29 See also Blackwell v. Bull, 1 James, L. J., Brett, L. J. and Cotton, Keen. 177 (1836) and Cockshott v. L. J.; Ralph v. Carrick approved in Coekshott, 2 Coll. 432 (1846) where, Greene v. Tlood, 15 L. R. Ir. 450 however, the implication ef the life (1885). estate when the gift was to part of si Woodhouse v. Spurgeon, 52 L. the testator's heirs or next of kin J. Ch. 825 (1883) (gift to five out has been justified upon the special of six who would take as next of kin context of the wills there involved of testator) ; In re Springfield, according to Hall, V. C, in Ralph Chamberlin v. Springfield, [1894] V. Carrick, 5 Ch. Div. 984, 994; 11 3 Ch. 603. Ch. Div. 873. See also Doughty v. 22 Blackwell v. Bull, I Keen. 177 Stillwell, 1 Bradf. (N. Y.) 300, 311 (1836); Cockshott v. Coekshott, 2 {semhle) ; Maey v. Sawyer, 66 How. Coll. 432 (1846) as explained in Pr. (N. Y.) 381 ; Holton v. White, Ralph v. . Carrick, 5 Ch. Div. 987 23 N. J. L. 330. (1877). 3»5 Ch. Div. 984, 987 (1877); ss Isaacson v. Van Goer, 42 L. J. before Hall, V. C, 11 Ch. Div. 873 Ch. N. 8. 193; Rathbone v. Dyck- (1879) ; before the Court of Appeal, man, 3 Paige 8. 211 §206] ' ESTATES [Ch.XI law. Here the incongruity of A taking a life estate in the whole when he is expressly given a life estate, in part only is matched against the incongruity of the heirs at law, who are expressly excluded until the death of A, taking the estate at once on the testator's death. It may be safely affirmed that in the ordinary case the incongruity of A's taking a life estate in the whole where he is expressly given only a life estate in part, is suffi- cient to prevent the implication of a life estate in A?^ But that does not permit the incongruity of the heir at law who was expressly excluded until A's death, taking in the meantime. Both incongruities are avoided by adopting what is known as the distributive construction. ^^ § 206. The distributive construction : Suppose a particular estate be devised to A for life and after the death of A the same property together with other property is devised to B. Suppose also that B is the testator's sole heir at law. Here then we have the usual situation where, to avoid an incongruity, a life estate will be implied in A. But the fact that A is already expressly given a life estate in part tends to indicate that A was to have no further interest in the whole.^^ In short, there is about as much incongruity in A's being let in for a life estate in the whole, vhen he is expressly given a life estate in part only, as there is in B's being let in as heir at law at once on the testator's death when he was expressly excluded until the death^ of A. In the case put both incongruities may be avoided by taking the words "after A's death" in a distributive sense — that is, applying them only to the property in which A takes an express life estate. Thus B will take immediately on the testator's death excepting as to the property given to A for life, and as to that property he will take upon A's death. Whether in the case put a life estate wiU be implied to A or the distribu- tive construction adopted seems not to be the subject of any rule,^'^ and yet it is believed that in. order to avoid the two 34 Boon V. Coinforth, 2 Ves. Sr., man, 3 Paige 8. Cf. however. Bird 277; Dyer v. Dyer, 19 Ves. 612; d. Hunsdon, 2 Swanst. 342; Macy d. Stevens v. Hale, 2 Dr. & Sm. 22; Sawyer, 66 How. Pr. (N. Y.) 381. Sympson v. Hornsby, Finch's Prec. ^^'Bost, §206. Ch. 439 ; James v. Shannon, Ir. E. sa AmU, § 205. 2 Eq. 118; White v. Green, 1 Ired. 3? Hawkins on Wills, 177. Eq. (N. C.) 45; Eathbone «. Dyck- 212 CH. XI] LIFE ESTATES [§206 incongruities presented a court would incline at once to the distributive construction. ^ Observe, however, that the distributive construction is resorted to to avoid two incongruities. Whenever, therefore, the circum- stances are such that these incongruities are not presented this argument for the adoption of the distributive construction loses its force. For instance, when the gift after the death of A is not to the heirs at law of the testator and those alone, there is no incongruity whatever in an intestacy until the death of A. Hence no life estate would be implied in A and the inclination would be against the adoption of the distributive construction, in the absence of a special context supporting it.^* In the same way, if the gift after the death of A be to the heirs at law of the testator, but an intestacy, until the death of A, may be avoided under well settled rules without adopting the dis- tributive construction or the implication of a life estate in A] the argument from incongruity again fails. Thus, if the gift of the whole property after the death of A is of a mixed residue of realty and personalty, so that under the usual rule hereafter mentioned ^^ there will be no intestacy, but the intermediate income in the mixed funds will accumulate and be added to the principal and pass to B on the death of A, all argument from incongruity in favor of the distributive construction is removed and thait construction, if it be adopted, must be founded upon the special context.*** If, however, a special context sup- ports the distributive construction, it has been adopted where the gift after the death of A was to a stranger, or to the heirs at law of the testator and a stranger, or to a part only of the heirs at law or next of kin of the testator.*^ Of course, where there are explicit words postponing the gift until after the death of A the distributive construction is defeated.*^ So if 38 Bex V. Inhabitants of Biiig- Doe v. Brazier, 5 B. & A. 64; Epx stead, 9 Barn. & Cr. 21^; Aspinall i). Inhabitants of Bingstead, 9 Barn. V. Petvin, 1 S. & St. 544; Dayen- & Cr. 218; LiU v. Lill, 23 Beav. port V. Coltman, 12 Sim. 588; Att- 446; Bhodes v. Bhodes, 7 App. Cas. water v. Attwater, 18 Beav. 330. 192 ; Dyer v. Dyer, 19 Ves. 612 ; 39 Pogt, § 208. Drew v. Killiok, 1 De. G. & S. 266. 4« Lill V. Lill, 23 Beav. 446; Bath- *2 See Balph v. Carriek, 5 Ch. Div. bone V. Dyekman, 3 Paige 8. 984; 11 Ch. Div. 873 (aa commented 41 Cook V. Gerrard, 1 Saund. 181 ; on in 1 Jarman on Wills, 6 ed. Bige- Hutton ■». Simpson, 2 Vern. 722; low, *S05). 213 §207] ^ ESTATES ^ [Ch. XI there is a distinct separation of the contingencies so that the devise of all the property is expressed to be made "at the testator's death and after the death of A," the distributive construction would naturally be adopted.*^ §207. Intennediate income ** — Introductory: In the cases considered in the two preceding sections, where a life estate cannot be implied and the distributive construction cannot be adopted, there is left a gift to take effect in futuro after the death of A with no apparent disposition in the meantime. What then is to become of the rents and profits or intermediate in- come prior to the time the gift after the death of A takes effect ? The same question, of course, arises in all eases where there is a gift to take effect in futuro and apparently no disposition of the property in the meantime. §208. The rules established by the cases: If the subject matter of the devise be specific lands or specific personal prop- erty, there is an intestacy or the residuary devisee or legatee is entitled. *5 If, however, a residue of personalty alone be bequeathed, the intermediate income must accumulate and be added to the principal and pass to the one ultimately entitled.*® This is based upon the proper meaning of the word "residue." Thus, when a devise or bequest is made to A to take effect in fuiuro and then the residue of real and personal property is, given to B, B will be entitled to the intermediate income by *3 See Bex v. Inhabitants of Eing- on Wills, 6 ed., Bigelow, * 614; The- stead, 9 Barn. & Cr. 218, 227, per obald on Wills, 7 ed. 182; Green r Bailey, J. referring to a case from Ekins, 2 Atk. 473; Hodgson *. Bee- Moore's Reports. tive, 1 Hem. & M. 376; 10 H. L. C. ** This is often, and always should 656; Marriott v. Turner, 20 Beav. be, explicitly disposed of, as in 557; Bullock v. Stones, 2 Ves. Sr. Blanchard v. Maynard, 103 111. 60; 521 ("all my real and personal es- Hale D. Hale, 125 111. 399; Waldo D. tate") ; In re Drakeley's Estate. Cummings, 45 111. 421, and Bhoads 19 Beav. 395 ("all my real and per V. Rhoads, 43 lU. 239. sonal estate") ; Studhohne v. Hodg ■•5 1 Jarman on Wills, 6 ed., Bige- son, 3 P. Wms. 300. Note that Hop low, 614; Theobald on Wills, 7 ed. kins v. Hopkins, Cas. temp. Talb: 180, 181 ; Hopkins v. Hopkins, Cas. 44, so far as it held the contrary has temp. Talb. 44, Hawkins on Wills, been overruled. Hodgson v. Bective, App. 1; Haughton v. Harrison, 2 1 Hem. & M. 376; per Wood, V. C, Atk. 329; Doughty v. Stillwell, 1 at S99, and io H. L. C, p. 356, per Bradf. (N. Y.) 300, 310. Westbury at p. 666. 'lePearne, C. R. 546; 1 Jarman 214 Ch. XI] LIFE ESTATES [§208 reason of the gift of the ' ' residue. ' ' *^ Hence when a residue itself of personal property is devised to -A in futuro the inter- mediate income must accumulate and ultimately pass to A.*^ On the other hand, if the devise be of a residue of realty alone, the English cases hold that there is an intestacy, and the heir at law is entitled to the intermediate rents and proflts.*^ Here obviously enough the courts refused to give to the word "resi- due" the same meaning and effect as was given to it where a residue of personalty was involved. If, however, the devise be of a mixed residue of real and per- sonal property the intermediate income must, in the absence of a special context requiring a different result,^" be accumu- lated and paid over to the one ultimately entitled. This rule has been given a wide applicatioij under varying circumstances. It has been applied where an express trust was created and ,the gift was of the "residue" of real and personal property.®^ It " Stephens v. Stephens, Cas. temp. Talb. 228, 233; In re Bddels' Trusts, L. E. 11 Eq. Cas. 559; In re Mowlem, L. i^. 18 Eq. 9; Harris V. Lloyd, Turn. & E. 310; In re Tharel's Trusts, 13 L. E. Ir. 337; Wyndham v. Wyndhaiu, 3 Bro. C. C. 58; Guthrie v. Walrond, L. E. 22 Ch. Div. 573; Sanford v. Blake, 45 N. J. ^q. 247. ^8 See cases cited, supra, note 46 and especially Green v. Elkins, 2 Atk. 473, 475. Also Gibson v. Montfort, 1 Ves. Sr. 485; Eogers v. Eoss, 4 Johns. Ch. (N. Y.) 388, 399. *9 Hopkins v. Hopkins, Cas. temp. Talb. 44; Hawkins on Wills, App. 1; Hodgson v. Bective, 1 Hem. & M. 376; 10 H. L. C. 656; Wade- Gery v. Handley, 1 Ch. Div. 653 ; 3 Ch. Div- 374; Wills v. Wills, 1 D. & War. 439; Davenport v. Coltman, 12 Sim. 605; Chambers v. Brailsford, 18 Ves. 368; Be Williams ;" Spencer V. Brighouse, 54 L.T. 831; Bullock V. Stonesj 2 Ves. Sr. 521 ("a,ll my real and personal estate") ;DufSeld V. Duffield, 1 Dow & Clark, 268. 50 Eor instance, in In re Town- send 's Estate, Townsend v. Town- send, 34 Ch. Div. 357, the gift of the residue of real and personal property was upon trust to pay the income to W. S. T. for life and then to W. 8. T. 's children in equal shares. The gift of the life estate to W. S. T. was void because his wife witnessed the will. The gift to the children of W. S. T. coWd not be accelerated because there were no children in esse. It was held that the ineome of the real estate would not be accumulated but must go in the meantime to the heirs at law. The preceding life estate expressly given negatived any inference that the children who were to take in futuro were to have the accumulations of income. siGlanvill v. Glanvill, 2 Meriv. 38. In the following cases there was not only a gift of the residue of real and personal property and a trusteeship, but other facts ^hich aided the theory that the gift of the residue in futuro was intended to 215 208] ESTATES [Ch. XI makes no difference, however, that there is no trusteeship but a devise of legal interests only.^^ fhe use of the word "residue" would seem to be unnecessary so long as some form of expres- sion is used which brings real and personal property into a single blended fund of a residuary character.^^ Qn the other hand, when a testator begins to enumerate property specifically and to designate both real and personal property, but does not include them together in a single blended fund, it may be that, while the income of the personal property will accumulate be- cause the personal property mentioned is in fact a residue, the rents of the real estate will go to the heir at law as intes- tate property.''* The rule applicable to a mixed residue of real and personal property has been justified on the ground that when the testator devises in ftituro a mixed or blended fund of real and personal property he expresses an intention that the rule in regard to personalty shall operate upon both.'^ But obviously enough carry accumulations. Gibson v. Montford, 1 Ves. Sr. 485; Ackers «. Phipps, 3 CI. & Fin. 665. 32 Genery v. FitzgeraJd, Jac. 468 ; Rogers v. Boss, 4 Johns. Ch. (N. T.) 388. 53 In re Taylor, Smart v. Taylor, [1901] 2 Ch. 134 ("all real and personal estate not otherwise dis- posed of"); Lachlan v. Eeynolds, 9 Hare, 796 ("the interest of real and personal property"); Dough erty v. Dougherty, 2 Strob. Eq. (S. C.) 63, ("all my property both real and personal"); In re Dumble, Williams v. Murrell, L. R. 23 Ch. Div. 360, (realty and personalty were devised by different clauses, yet the intermediate income from both realty and personalty was ac- cumulated). Bullock V. Stones, 2 Ves. Sr. 581, so far as it is contra seems to be overruled. Ackers v. Phipps, 3 CL & Fin. 665, pervjjord Brougham, p. 6d7. Is Lambert v. Harvey, l6o 111. 338, the devise was of "all property both real and per- sonal and mixed." The holding, however, that there was an intestacy as to the real estate, so that title descended to the heir at law, was not contrary to the above men- tioned English Cases, because the action was ejectment by the resid- uary legatee, and the only question was whether the residuary legatee possessed the legal title to the real estate prior to the time when the springing future interest vested in possession. The court were not called upon, and did not pretend to decide that the heir at law did not hold the rents and profits in trust to accumulate for the benefit of the residuary legatee. 04 /» re Drakeley's Estate, 19 Beav. 395 (devise of "freehold, copyhold and all his real estate, and bequeathed all bis ready money, securities for money, stock and per- sonal estate, etc.-")- 35 Genery v. Fitzgerald, Jac. 468, 216 CH. XI] LIFE ESTATES ' [§209 this is an arbitrary assumption, for why may not the inference as well be that the testator intends the rule in regard to realty to prevail both as to realty and personalty? The reason for the rule with respect to the mixed residue of realty and per- sonalty must be that, of the two opposing tules regarding a residue of realty and a residue of personalty, the latter is more in accordance with the natural and proper meaning of the language usedsthan the former. § 209. Criticism of the rule that the intermediate rents and profits of a residue of realty go to the heir at law: Three rea- sons have been .urged for construing the word ' ' residue ' ' dif- ferently when applied to personalty alone and when applied to realty alone. First: It has been said that if the heir did not take so as to be entitled to the rents and profits until the future event happened, the freehold would be in abeyance.''^ This is hot strictly* true for the fee may descend to the heir at law and his seisin should satisfy, in t^iese times at least, any surviving requirement , of the feudal land law. If it be said that the heir cannot take the legal estate and at the same time be deprived of the rents and profits, the answer is that that is exactly what Lord Eldon did in Genery v. Fitzgerald,^'' where a mixed residue and realty and personalty was involved. Fui^thermore, Chancellor Walworth in Rogers v. Boss,^^ met the objection by declaring that a court of chancery would make the heir at law a constructive trustee ^^ of the* rents and profits for the one ultimately entitled, or would appoint a receiver to take the rents and profits. Second: It has been said that the heir cannot be disinherited without express words. Logically this assumes the very point at issue, since the question is, has the testator expressed an intention to give the rents and profits to the devisee who is to take in futuro? Practically this second reason expresses merely a prejudice in favor of the heir founded upon the recognition . per Lord Eldon; Ackers v. Phipps, .3 58 4 Johns, Ch. (N. Y.) 388, 402. 01. & Pin. 665, per Lord Brougham, so 4 Kent. Com. * 387, 14th ed.; p. 699. Dougherty v. Dougherty, 2 Strob. 56 Hodgson V. Beetive, 10 H. L. C. Eq. (S. C.) 63, 66 accord. 656, per Lord "Westburyj p. 664. STJac. 468. ; 217 §209] ^ , ESTATES [Ch.XI by the English courts of the prevailing English custom of per- mitting the eldest son to take the ancestor's or settlor's entire landed property.^** Such a prejudice has no place in American jurisdictions today. It is entirely inconsistent with our manners and customs. Third: It has been said that prior to the time when after- acquired real estate could be devised, a residuary devise of real estate was looked upon as a specific devise of real estate. Hence the rule applicable to a specific devise of real estate applied and the rents and profits could not be accumulated.^ i The rule, hav- ing become established on this logical ground, could not be re- garded as repealed by implication when after-acquired real es- tate was made ^evisable by the Wills Act.*^ The premise in 'this reasoning is defective because the material question is not whether the devise was one of specific real estate, but what meaning shall be given to the word "residue" when specific real estate was described as a "residue?" Of course, in an American jurisdiction where the question comes up for the first time, long after statutes have made after-acquired real estate devisable, there is the same opportunity for ignoring the rule of the English cases based upon the fact that after-acquired real estate was not devisable that there is where the question is whether a lapsed devise falls into the residue or goes to the heir at law.^^ ' The unsatisfactory character of the rule that the heir at law was entitled to the intermediate income of a residue of realty "o Hodgson V. Bective, 1 Hem. & that a lapsed devise of real estate M. 376, per Wood, V. C, p. 397: went to the residuary devisee and ■ ' The rule which gives the interme- not to the heir at law as a result of diate rents to the heir is the arti- the fact that after acquired real ficial result of our peculiar doctrine estate might be devised, in the same in this country in favor of the heir 's way as after acquired personal prop- position." erty. Molineaux v. Baynolds, 55 N. 61 Hodgson V. Bective, 1 Hem. & J. Eq. 187 ; Thayer v. Wellington, M. 376, per Wood, V. C, p. 396; 9 Allen (Mass.) 283, 295; Beeves v. 10 H. L. C. 656, per Lord Cranworth, Beeves, 5 Lea (Tenn.) 653; Cruik- p. 669. shank v. Home for the Friendless, 02 Hodgson V. Bective, 1 Hem. & 113 N. Y. 337, 354. Contra, Mas- M. 376, per Wood, V. C, p. 396. sey's Appeal, 88 Pa. 470; Bizer v. 63 In the following cases it was held Perry, 58 Md. 112, 134. 218 Ch. XI] LIFE ESTATES [§209 alone and the weakness of the reasons upon which that rule is based, have been pointed out by eminent judges.** 6* In Gibson v. Montf ord, 1 Ves. Sr. 485, 490, Lord Hardwicke said: "It is pretty hard to say, that in any case where one devises all the rest and residue of his real estate, the heir should be enabled to claim anything out of it; for how can he claim or take these intermediate profits? He must claim [them] as part of the real* estate undisposed [of] and not by any particular trust." This passage Chancellor Walworth quotes with approval in Eogers v. Eoss, 4 Johns, Ch. (N. Y.) 488, 500. In Ackers v. Phipps, . 3 CI. & Fin. 665, 691, Lord Brough- am, referring to the same passage from Lord Hardwicke, says: "It does seem difficult to understan'd a residuary devise, even when confined to real estate, in any other than this genetal and absolute sense. For what can it mean, but to give away from the heir whatever had not be- fore been given away from him?" Again (p. 699), he says, after ap- proving the rule with respect to a mixed residue of real and personal property: "But I am also of the opinion that the gift of a real resi- due, without blending it with a per- sonal residue, would of itself, have the same effect upon another ground, namely the meaning of ' residue '. ' ' 219 CHAPTER XII. JOINT INTERESTS. § 210. Of real estate — Jbint tenancies other than those in trustees and executors — The Statutes: At common law a con- veyance w^er vivos or by devise to several created prima facie a joint tenancy. In 1821 ^ the right of survivorship between joint tenants was abolished by language broad enough to apply to real property as well as personal. In 1827,^ however, the present Section 5 of the Act on Conveyances was passed, which reads as follows: "No estate in joint tenancy, in any lands, tenements or hereditaments, shall be held or claimed under any grant, devise, or conveyance, whatsoever, heretofore or here- after made, other than to executors and trustees, unless the premises therein mentioned, shall expressly be thereby declared to pass, not in tenancy in common, but in joint tenancy; and every such estate, other than to executors and trustees, (unless -otherwise expressly declared as aforesaid) shall be deemed to be in tenancy in common." Since the passage of this act. Section 2 of the Act of 1821, Which has continued in the various revisions of the statutes, has been held not to apply to real estate.* The re-enactment of the Act of 1821 with an amend- ment relating to bank deposits would not, it is believed, operate to abolish the right of survivorship in joint tenants of real estate. That part of the Act of 1917, which was mei^ely a re- enactment of Sec. 2 of the Act of 1821, would be construed, as it had been in connection with the Act of 1827, not to apply to real estate. §211. Construction: Under the Act of 1827 (now Sec. 5 of the Act on Conveyances), it is important to determine what language is sufficient to enable one to find an expressed intent to create a joint tenancy. The exact words of the statute "not 1 Gale's 111. Stats. 514, 515, §2; 1845, Ch. 24, §5; E. S. 1874, Cli. R. S. 1845, Ch. 56, § 1; R. S. 1874, 30, § 5, Ch. 76, §-1. 3 Mette D. Feltgen, 148 111. 357. 2 Gale's 111. Stats. 149, §5; E. S. 220 Ch. XII] JOINT INTEKESTS [§211 in tenancy in common, but in joint tenancy" are clearly suffi- cient for the creation of a joint tenancy.* It has been said a number of times by our Supreme Court ^ and actually held in • at least one case ® that it is not necessary to use the exact words of the statute in order to create a joint tenancy. It is only necessary that some words be used which show a clear intent to create such interests. Nevertheless, it should be observed that it requires a very clear expression of intent to create a joint tenancy, ■ The inclination of the court has been entirely against its creation. In Mitt el v. Karl,'' the deed ran to a husband and wife and "the survivor of them, in his or her own right." It was held that this did not confer an estate by the entirety. The court said: "The declaration which the statute requires to establish the estate [i. e., the exact words of the statute 'not in tenancy in common, but in joint tenancy'] is nowhere found in the deed, and in the absence of such a declaration we are inclined to hold that the estate was not created." There could be no tenancy in common because of the clause concerning survivor- ship. The court, therefore, seemed driven to the construction that the husband and wife took life estates with a contingent remainder over to the survivor. Later dicta anA. at least one decision * indicate that the court laid down too strict a rule when it intimated that, in order to create a joint tenancy, the precise language of the statute must be used. With the more liberal view of the later cases that any language is sufficient which shows a clear intention to create a joint tenancy, it would seem that the language of the deed in this case might be held to have created a joint tenancy, rather than life estates with contingent remainder subject to be destroyed by the action of the life tenants and reversioner. In, Slater v. Gruger,^ the deed referred to the husband and wife "and the survivor of, them, in his or her own right," as party of the second part. The granting clause was "unto said party of the second part, their heirs and assigns forever." Following the description of the property granted, the deed *U. • ' c Slater v. Gruger, 165 111. 329. 5 Cover V. James, 217 111. 309, ' 133 lU. 65. 315; Gaunt v. Stevens, 241 111. 542, s Supra, notes 5 and 6. 548. ' 9 165 111. 329. 221 § 212] ESTATES [Ch. XII declared that the "conveyance herein is made to said grantees in joint tenancy" and the habendum was "unto the said party of the second part, their heirs and assigns forever. ' ' It was held that a joint tenancy had been created. The court made it clear that any words indicating an intent to create a joint tenancy were sufficient, and that it was not necessary to follow the exact words of the statute. In Mustain v. Gardner, ^° there was a devise to the testator's daughter and his wife "jointly" of certain described property "to them and their heirs and assigns forever." This was held to create a tenancy in common and not a joint tenancy. The mere use of the word "jointly" was not sufficient to indicate a joint tenancy. In Cover v, James,^^ the deed ran to a husband and wife and after the description of the propq,rty and the release of the homestead, there appeared this clause : " in case of the death of either A. Ford or Bessie Cover, the other to have the whole of said property without litigation. ' ' It was held that the husband and wife took life estates with contingent remainder to the survivor. Eeliance may have been placed upon the phrase "in case of the death" as indicating a separate gift in any event upon the death of either.^^ fj^g court, however, seems to have relied very largely upon the result reached in Mittel v. KarU^ In Gaunt v. Stevens,^* the limitations were by will to the testator's wife and two named daughters "and to the survivor or survivors of them, share and share alike." It was held that a tenancy in common and not a joint tenancy was created. The fact that a devise was involved made it possible to construe "sur- vivor or survivors of them" as meaning those who survived the testator, and "share and shate alike" as giving to those who sur- vived the testator a tenancy in common in fee. This course the court regarded as required by the settled disinclination to find a joint tenancy, if any other explanation of the language used was permissible. § 212. Joint tenancies in executors and trustees: The Act of 1821,16 which in Sec. 1 permitted the partition of joint ten- ancies and then provided in Sec. 2 that if no partition was 10 203 111. 284. 13 133 111. 65. 11 217 111. 309. 11 241 111. 542. 12 Ante, §§ 162, 163. is Gale's 111. Stats. 514, 515. 222 Ch. XII] JOINT INTERESTS [§214 made there should be no right of survivorship, by the terms of Sec. 1, applied only to joint tenants ' ' in their own right, or in the right of their wives." It has been suggested that it, there- fore,- did not apply to joint estates held by executors and trustees in the right of another. ^^ The Act of 1827 ^'^ made it clear that limitations of real estate to executors or trustees were subject to the common law rule that a joint tenancy was prima facie created in such executors or trustees. Since n6 right of survivorship was ever taken away, such right continued as an attribute to the joint tenancies of executors and trustees. The fact that the Act of 1827 was construed as providing for the continuance of the right of survivorship where a joint tenancy was created pursu- ant to this act in real estate, confirms the view that trustees and executors who take as joint tenants do so with the common law right of survivorship.18 § 213. Estates by the entirety in husband and wife : Before the Married Women's Act of 1861,1^ a conveyance to a husband and wife in fee created in both, estates by the entirety.^" Each had a right to the whole property upon surviving the other, and this right of survivorship neither one alone could extinguish by any act during the marriage. Since that act, they are tenants in common.*! It has yet to be decided whether an estate by the entirety in the husband and wife can be created if an intention to do so is fully expressed. §214. Tenancy in common: Since 1827 a transfer inter vivos or by devise has, in this state, been sufficient prima facie to make the grantees tenants in common. This rule applies regu- larly where there is a conveyance or devise to named persons, or to a class of persons. In cases, however, where the convey- ance is to a named -person or persons, together with a class of persons, such as a conveyance to A and his children, there has been a disposition by our Supreme Court to permit a slight additional special context to give rise to the inference that ' ' chil- le Mette v. Feltgen, 148 111. 357, is Laws 111. 1861, p. 143. 363; Gaunt v. Stevens, 241 111. 542, 20 Mariner v. Saunders, 5 Gilm. 547. (111.) 113; Lux v. Hofe, 47 111. 425. " Now E. S. 1874, Ch. 30, § 5. 21 Cooper v. Cooper, 76 111. 57, "Beichert v. Mo. & III. Coal Co., 64; Mittel v. Karl, 133 111. 65, 68. 231 111. 238, 244. 223 §215] ESTATES ' [Ch:XII dren" was used as an informal word of limitation so that A alone took the fee." §215. In personal property: Since the Act of 1821 and until its recent amendment in 1917, the right of the survivor or survivors of joint tenants to take the whole has been abol- ished.2* The amendment of 1917 '^* made a special exception in the case of bank deposits if certain formalities were observed. It has been suggested, however, that the Act of 1821, by the terms of Sec. 1, applied only to joint tenants ' ' in their own right, or in the right of their wives," and hence Sec. 2 did not apply to joint interests in trustees or executors, or joint tenants hold- ing in the right of another.^s Sec. 1 of the Act of 1821 appears to have been dropped out of the Revised Statutes of 1845 or else it must be regarded as having been rewritten and incor- porated into See. 1 of Ch. 79 on Partition, and in Sec. 1 of Ch. 106 of the Revised Statutes of 1874 on Partition. Nevertheless, it may be assumed in accordance with the rule of construction laid down in Sec. 2, Ch. 131 of R. S. 1874 that Sec. 2 of the Act of 1821 appearing as See. lof Ch. 56, R. S. 1845, and Sec. 1, Ch. 76, R. S. 1874 wiU be construed as a mere continuation of the original statute with the same construction which it originally •had.^* By this process it will still be ineffective to eliminate the common law right of survivorship in the case of joint tenan- cies of personal property in executors and trustees and those holding in the right of another. 22 See ante, § 169. As to gifts to where the above rule and the statute A and "his descendants" see ante, seems to have been entirely over- § 196. As to gifts of personalty to looked. "A and the heirs of his body," or 24 Laws 1917, p. .557. *to "A and the issue of his body" 25 Mette v. Feltgen, 148 HI. 357, see ante, §§ 199, 200. 363. 23 Hay V. Bennett, 153 111. 271. 26 la., 367. But see Erwin v. Felter, 283 HI. 36, 224 BOOK IV. FUTURE INTERESTS. CHAPTER XIII. RIGHTS OP ENTRY FOR CONDITION BROKEN. TITLE I. ESTATES WHICH MAY BE SUBJECT TO A CONDI-TION SUBSEQUENT. §216. Fee simple: A fee simple estate may be made sub- ject to forfeiture by the breach of a condition subsequent. This, it is believed, has been the law from the earliest times,i and this liberty has been fully sustained in this state by Gray v. Chicago, M. & St. P. By.^ There were, in that case, two conveyances in fee simple executed in favor of the railroad subject to an express condition subsequent that the land conveyed should revert to the grantors upon the failure of the railroad to stop at a certain station all its accommodation trains to take and leave passengers. ' There was a breach of the condition and the grantor in one deed and the devisee of the grantor in the other brought eject- ment. A verdict was directed for the defendant and judgment was rendered on this verdict. This was reversed. The only questions discussed; were the construction of the condition and its legality.^ § 217. Mortgages : * It seems worth observing that a mort- gage, so often considered as a conveyance wholly in a class by 1 Gray's Eule against Perpetu- 111. 294; Green v. Old People's ities, §§ 12, 30. How far it may Home, 269 III. 134; Latham v. I. C. be limited by the rule against per- E. E. Co., 253 111. 93. An equitable petuities or public policy against interest in personalty may also be forfeitures for alienation will be subject to a condition subsequent: considered post, §§662, 711 et seq., Green v. Old People's Home, supra. 749 et seq. s Dedication : The nature of the 2 189 111. 400. See also in accord : interest of the dedicator upon a Wakefield v. Van Tassell, 202 111. statutory dedication will be consid- 41; Wilson v. Gait, 18 111. 431, 437; ered post, §§ 284, 285. Sherman v. Town of Jefferson, 274 - It is not proposed here to in- Kales Put. Int. — 15 225 § 217] FUTURE INTERESTS [Ch. Xlll itself, is, fundamentally, merely the transfer of a fee simple, sub- ject' to a condition subsequent.^ If the debt be paid according to the terms of the condition the mortgagee 's fee is subject to for- feiture. The mortgagor has a right of entry and if already in possession he has a legal title in fee simple at once. Prom this it followed that the mortgagee could maintain ejectment and was, in the absence of any stipulation to the contrary, entitled to possession before condition broken. Such, indeed, - was the doctrine of the English cases,^ and in one of our early cases '' there is a dictum that such is the rule in this state. It is now, however, settled in this state that the mortgagee cannot maintain ejectment until after condition' broken.* This must rest upon the ground that equity, regarding the mortgagor as the real owner, would enjoin an action for possession by the mortgagee until the non-pajonent of the sum secured. The fact that there has been no such failure to pay becomes, therefore, an equitable defence which a court of law in a suit for possession recognizes and admits under the general issue pleaded.^ The burden of proof, therefore, is upon the defendant — the mort- gagor — ^to show that there has been no breach of the condition. This is the rule which the Supreme Court recognizes.^'' After default in the payment of the amount due equity will no longer enjoin a suit for ejectment, so that the basis of an equitable defence is lacking and the ejectment may proceed.^^ There is, dieate how far the Illinois Courts '' CarroU v. Ballance, 26 III. 9, have modified the original view of 17. the character of a mortgage, but s Kransz v. Uedelhofen, 193 111. only to call attention to some of 477. the points in which the logical re- « It would seem to follow, also, suits of that original view have that before default the mortgagor been retained, and to explain some might maintain ejectment against departures in a way to cause the the mortgagee, on the ground that, least disturbance to the law of to the mortgagee's defence of legal future interests. title, the mortgagor would have an 5 Co. Lit. ch. 5, § 332, note (1) ; equitable reply, founded upon the Butler and Hargrave'a notes, 1st fact that equity would enjoin the American ed. from 19th London ed. mortagee from setting up the legal « See the exposition of the Eng- title before default, lish doctrine to be found in Bar- lo Tinlon v. Clark, 118 111. 32. rett V. Hinckley, 124 111. 32, 41 et n Delahay v. Clement, 3 Scam. seq., and Kransz v. Uedelhofen, (111.) 201, 203 (semhle) ; Kruse v. 193,111. 477, 484. Scripps, 11 HI. 98; Vansant v. AU- 226 Ch. XIII] CONDITIONAL ESTATES [§219 then, no accuracy in speaking of the default of the naortgagor as if it operated to forfeit a legal fee simple in the mortgagor and invest the mortgagee with it.^^ § 218. Terms for years: A term for years is the interest most commonly subject to a condition subsequent. The for- feiture of leases for nonpayment of rent or for the breach of covenants in the lease, which are made conditions by express stipulation, are so common as to require no citation of authori- ties regarding their validity in general, i^ TITLE II. OONCEENING THE EXISTENCE AND CHAEACTBK OP THE CONDITIONS. Topic 1. Conditions Created by Act of the Parties. § 219, What words are effective to create a right of entry for condition broken — Effect of a re-entry clause: The clearest way to make a conditional fee is to use words of condition and mon, 23 111. 30 (semhle) ; Carroll V. Ballanee, 26 111. 9; Fisher v. Mil- mine, 94 111. 328; Bsker v. HefEer- nan, 159 111. 38; Ware v. Schintz, 190 111. 189. In Kruse v. ScrippS, supra, and Carroll v. Ballanee, supra, it was held that no notice to quit was necessary before the mortgagee brought ejectment. This was put on the ground that the mortgagor had no estate at all. It is believed that this is strictly correct. The mortgagor's possession is protected by equity merely, and by the privi- lege which the mortgagor has to urge an equitable defence to the mortgagee's action of ejectment at law. The moment that bar is re- moved the right to possession of the mortgagee which has all along ex- isted becomes fully cfEeotive. This must have been the view of the court because it not only said that the mortgagor had no tenancy, but in Carroll v. Ballanee, supra, it de- clared that the mortgagee had a legal right to maintain ejectment before default. Such a view is not inconsistent with the rule that the mortgagor's possession beomes adverse only upon default, since the cause of action by the mortgagee for possession can- not be said to arise, in the meaning of the Limitation Acts, so long as the mortgagor has a good defense. After a default it is clear that tfie mortgagor cannot maintain an eject- ment against the mortgagee because the equitable reply (supra, note 9) of the mortgagor is gone: Holt v. Eees, 44 111. 30; Kilgour v. Gock- ley, 83 111. 109; Oldham v. Pfleger, 84 111. 102. 12 If this were the correct view, the mortgagee would have a shift- ing future interest by deed. Post, §§ 443 et seq. See also Forlouf v. Bowlin, 29 111. App. 471. 13 See cases cited and dealt with, post, §§ 233-239, 241, 245-253. 227 220] FUTUKE INTERESTS [Ch. XIII also insert a re-entry clause, i* When the conveyance is fors certain express purposes or upon a motive expressed, or upon a certain consideration, with a re-entry clause, or if there is a covenant with a re-entry clause the estate is upon a condition subsequent.!^ -^q^ infrequently there is created both a covenant by the grantee and a condition subsequent, and the grantor may proceed by way of enforcing the covenant or declaring a for- feiture. Sometimes, however, a condition subsequent, and that alone, is created, so that if the breach of the condition be waived there can be no claim at all for damages which may have oc- curred prior to the waiver of the breach of condition.!^ § 220. Where the conveyance is for certain express pur- poses, or upon a motive expressed,!'^ or upon a certain con- sideration 1^ or the upon " Gray v. C, M. & St. P. Ey. Co., 189 111. 400; Sanitary Dist. v. Chi- cago Title & Trust Co., 278 111. 529 ; Trustees of Union College v. City of New York, 73 N. Y. Supp. 51; Moss V. Chappell, 126 Ga. 197; Minard v. Delaware, L. & W. K. Co., 139 Fed. 60; Brown v. Tilley, 25 B. I. 579; Austin V. Cambridge Port Parish, 21 Pick. (Mass.) 215; Houston & T. C. E. Co. V. Ennis-Calvert Co., 23 Tex. Civ. App. 441; Hoyt v. Ketcham, 54 Conn. 60. 15 Atty. Gen. v. Merrimack Manu- facturing Co., 80 Mass! 586; Wood- ruff V. Water Power Company, 10 N. J. Eq. 489; Hamel v. Minneap- olis, St. P. & S. S. M. Ey., 97 Minn. 334; Sherman v. Town of Jeflferson, 274 111. 294; Hart v. Lake, 273 111. 60; Green v. Old People's Home, 269 111. 134; Latham v. I. C. E. E. Co., 253 111. 93; Springfield, etc. Trac- tion Co. V. Warrick, 249 111. 470. 18 Sanitary Dist. v. Chicago Title & Trust Co., 278 111. 529. As be- tween holding a condition to be pre- cedent to the transfer of title, or subsequent, divesting a title which has passed, the courts lean toward the latter construction: Phillips v. express agreement, ^^ or Gannon, 246 111. 98 ; Nowak v. Dom- browski, 267 111. 103. 17 Tinker v. Forbes, 136 111. 221, 239; Thornton v. Natchez, 88 Miss. 1; Id., 129 Fed. 84; Barker v. Bar- rens, 138 Mass. 578; Long v. Moore, 19 Tex. Civ. App. 363; Faith v. Bowles, 86 Md. 13; Field v. Provi- dence, 17 E. I. 803; Horner v. C, M. & St. P. Ey. Co., 38 Wis. 165, 175; Eawson v. School District, 7 Allen (Mass.) 125. See also Greene V. O'Connor, 18 E. I. 56; Avery v. V. S., 104 Fed. 711; Kilpatrick v. Mayor, 81 Md. 179; Collins v. Brackett, 34 Minn. 339. In O'Don- nell V. Eobson, 239 111. 634, the court assumed the existence of a condition subsequent only for the purposes of argument. IS Letchworth v. Vaughan, 77 Ark. 305 (in consideration of build- ing a railroad to be completed by a certain date). See, however, contra, Close V. Burlington, etc., E. E. Co., 64 la. 149 (in consideration of es- tablishing a railroad station, held to create an estate upon condition) ; Indianapolis, etc. E. E. Co. u. Hood, 66 Ind. 580 (same sort of case). 18 Hawley v. Kafitz, 148 Cal. 393 228 Ch. XIII] CONDITIONAL ESTATES [§ 220 "provided, however, the grantee shall do" thus and so,2« and there is no re-entry clause: Here the eases are overwhelm- ingly in favor of the proposition that the estate is not upon condition. Nevertheless, upon a conveyance to school trustees expressed to be for school purposes, our Supreme Court seems to have admitted that if the school trustees sold the land or used it for other than school purposes the grantor might declare a for- feiture of the estate conveyed.^i So where a lease of premises was made "to be occupied for a grocery store and for no other purpose whatever," it was held that the failure to so use the store was the breach of a condition subsequent. ^^ On the other hand, where a deed was made to supervisors "for court house and other county buildings," no condition was created.^s So, where the deed ran to commissioners in consideration of the location of the county seat having been made upon the granted premises, it was pretty clear that there was no condition. 2* So, too, when the conveyance was for church purposes and a pro- viso was added that if it were not used for such purposes the grantor was to be paid two hundred dollars, it is clear that there was no condition of forfeiture of the estate. ^^ (upon the express agreement to effect. The conveyance of lots was build a house to cost a certain sum) ; there made upon condition that a Mackey v. Kerwin, 222 111. 371 ; No- strip twenty feet wide at the front wak V. Dombrowski, 267 111. 103 ; of each lot should be used only as O'Neil V. Caples, 257 111. 528. a front yard and not built upon and 20 King V. Norfolk & Western Ky. in case of a breach of this stipula- Co., 99 Va. 625; Cassidy v. Mason, tion the grantee was to pay a pen- 171 Mass. 507; Village of Ashland alty of ten dollars per day. The V. Greiner, 58 Ohio 67. Court intimated (p. 579) that this 21 Trustees of Schools v. Braner, was not an estate upon condition, 71 111. 546; Eldridge v. Trustees of but only a contractural restriction Schools, 111 111. 576. upon the use of the premises con- 22 White v. Naerup, 57 111. App. veyed. Observe that the Court lays 114,118 (1st Dist., Gary, J.). stress upon the fact that there is 23 Supervisors Warrpn Co. v. Pat- no clause of re-entry. That, how- terson, 56 111. 111. ever, is not necessary if the condi- 2* Harris v. Shaw, 13 111. 456. tion is clearly expressed. 25 Board of Education v. Trus- Clearly where property is con- tees, etc., 63 111. 204. Eckhart v. veyed to a church there is no ground Irons, 128 111. 568, is to the same of forfeiture when it ceased to be 229 § 221] FUTUKE INTERESTS [Ch. XIII § 221. Cases wliere a grantee is to support the grantor for the remainder of his life ^s or pay him an annuity: ^t is the support or the payment of an annuity merely a personal cove- nant or is its breach made a ground of forfeiture of the fee simple? It is of course possible by explicit terms, to make it the latter, but in none of the cases mentioned here was it done. In each case a bill was filed by the grantor to rescind the contract and for a reconveyance. In three cases where the con- tract was for personal support, 2* which the grantee failed to furnish under shameful circumstances, our Supreme Court said there were equitable gi-ounds for sustaining the prayer of the bill.^" This holding does not, however, in any way proceed upon the gi-ound that the estate is conditional. In a recent case,^* where the grantee fully perfonned his contract so long as he lived, but where his heirs failed to do so, it was held that there was no ground in equity for the rescission prayed for; and the court expressly said that "the intervention of equity in such cases has been sanctioned in this state on the theory that the neglect or refusal of the grantee to comply with his contract raises a presumption that he did not intend to comply with it in the first instance, and that the contract ^as fraud- ulent in its inception." In another case where the contract was merely for the payment of a life annuity to the grantor *^ the court said there was no condition and no equitable grounds for rescission and a decree for the grantor was reyersed. § 222. Gases where words of condition are used, but there is no re-entry clause — The primary meaning of the words of condition: Words of condition without a re-entry clause are prima facie effective to create an estate upon condition.** In used for the ehureh edifice : King 27 Gallaher v. Herbert, 117 111. V. Lee, 282 111. 530. So where the 160. property was conveyed for a ^8 Supra, note 26. ' ' church location, ' ' the unrestricted 29 See alsp O 'Neil v. Caples, 257 fee was held to have been conveyed : 111. 528 ; De Costa v. Bischer, 287 Downen v. Eayburn, 214 111. 342. 111. 598. 26Frazier v. Miller, 16 111. 48; so stebbins v. Petty, 209 111. 291. Oard V. Oard, 59 111. 46; Jones v. See also Pittenger v. Pittenger, 208 Neely, 72 111. 449; Stebbins v. Petty, 111. 582. 209 111. 291; Cooper v. Gum, 152 ai Qallaher v. Herbert, 117 IlL 111. 471 ; Fabriee v. Von der Brelie, 160. 190 111. 460 ; Oumby v. Cumby, 240 »= Hays v. St. Paul Church, 196 111. 235. ' 111. 633; Supervisors Warren Co. v. 230 Ch. XIII] CONDITIONAL ESTATES [ § 222 many of the cases, the courts note the absence of the re-entry clause and declare that its presence is not necessary to make an estate upon condition where there are express words of condition.33 ^j the decisions noted were made in spite of the fact that the court leaned against construing the deed as one upon condition with a right pf re-entry in the grantor. In several this attitude of the court was very forcibly expressed.^* Even in the leading case of Post v. Weil,^^ where the court, relying upon all the circumstances surrounding the execution of the deed, held that the words of condition did not make an estate upon condition, but merely a promissory obligation on the part of the grantee, it concedes that the primary and ac- cepted meaning of words of condition without a re-entry clause creates an estate upon condition which it takes special circum- stances or a special context to overcome. It is clear also that this same leading case does not regard the absence of a re-entry clause as significant against the creating of a conditional estate by virtue of the words of condition.^^ It is no doubt true that in cases where the court holds that words of condition create merely a promissory obligation on the part of the grantee, the. absence of a re-entry clause may be commented upon. Never- theless, in all of these eases the absence of a re-entry clause is mentioned simply as a circumstance which makes it possible for the court to resort to the surrounding circumstances in aid Patterson, 56 111. Ill, 120; Harris Y.) 455; Mead v. Ballard, 74 U. S. r. Shaw, 13 111. 456; Gray i). Blanch- 290; Hooper v. Cummings, 45 Me. ard, 8 Pick. (Mass.) 283; Blanchard 359; Chapman v. Pingree, 67 Me. V. The Detroit, Lansing & Lake 198; Weinreich v. Weinreich, 18 Mo. Michigan Bailroad Co., 31 Mich. 43; App. 364; Parsons v. Miller, 15 Hammond v. Port Boyal and Angus- Wend. (N. Y.) 561. ta Railway Co., 15 S. C. 10; Taylor 33 Gray v. Blanchard, 8 Pick, f. Cedar Eapids and St. Paul R. E. (Mass.) 283; Papst v. Hamilton, Co., 25 la. 371; May v. Boston, 158 133 Calif. 631; Brown v. Chicago Mass. 21; Papst i;. Hamilton, 133 & N. W. By. Co., 82 N. W. 1003 Calif. 631; Adams v. Valentine, 33 (la.). Ted. Eep. 1 ; Eeiehenbach v. Wa,sh- 34 Weinreich v. Weinreich, 18 Mo. ington, etc., Ey. Co., 10 Wash. 357; App. 364; Adams v. Valentine, 33 Mills V. Seattle, etc., Ey. Co., 10 Fed. Eep. 1. Wash. 520; Brown v. Chicago & N. 35 115 N. Y. 361, 369. W. By. Co., 82 N. W. Rep. (la.) 36 Post v. Weil, 115 N. Y. 361, 1003; Underhill v. Saratoga and 371. Washington E. E. Co., 20 Barb. (N. 231 §223] ESTATES [Ch.XIII of construction, and not as a fact which of itself in any way controls the construction. This is brought out with exactness and precision by Gray, J., in Post v. Weil.^'' In Stilwell v. St. L. & H. By. Co.,^^ the court says that "some of the au- thorities hold that such words [words 'on condition'] when used in private grants, are not sufficient [to create an estate upon condition,] unless conjoined with others giving a right to re-enter, or declaring a forfeiture in a specified contingency." This is the only suggestion of any such rule which has been found. It is borne out by no authorities whatever so far as is known. The court itself says: '"This, probably, is too broad a statement of the rule." It would seem therefore, that the first principle established by the cases is that words of condi- tion without a re-entry clause, according to their normal and accepted meaning, create an estate upon condition and not a mere promissory obligation on the part of the grantee. Of course, the special context of the whole instrument has been allowed to turn the condition into a covenant. Thus, if the conditional words require the grantor, instead of the grantee, to do something, it has never been taken as a condition, but always as a covenant. ^^ So, if the word "condition" is used in a will, the context frequently shows that it was used as a word designating the trusts of a fund or the charging of a gift with the payment of legacies.*" The cases of unclassified special contexts where the word "condition" has meant "covenant" are of course legion.*^ § 223. How far resort may be had to circumstances sur- rounding the makings of the deed to impose upon words of con- dition alone the effect of creating a covenant only — Introduc- 37 115 N. Y. 361, 371. Newman, 239 111. 616. But in Nev- 38 39 Mo. App. 221, 227-228. ius v. Gourley, 95 111. 206, 97 111. 39 Paschall v. Passraore, 15 Pa. 365, and Jacobs v. Ditz, 260 111. 98, St. 295, 307, 309; Woodruff v. post, §442, the payment was held Woodruff, 44 N. J. Eq. 349. to be a condition precedent to the *o Stanley v. Colt, 5 Wall. 119; taking effect of the gift. Wright V. Wilkin, 2 B. & S. 232 4i Eckhart v. Irons, 128 111. 568; (110 Eng. Com. Law Rep.); Attor- Portland v. Terwilliger, 16 Ore. 465; ney-General v. Corporation of South- Minard v. Delaware, L. & W. B. Co., molton, 14 Beav. 357 ; Attorney-Gen- 139 Fed. 60 ; Los Angeles University eral v. Wax Chandlers Co., 42 L. J. v. Swarth, 107 Fed. 798. A fortiori, Ch. N. S. 425; Sohier v. Trinity where there are merely words of Church, 109 Mass. 1; Spangler v. agreement. 232 CH. XIII] CONDITIONAL ESTATES [§224 tory: So long as the words "on condition," without a re- entry clause, have the legal primary meaning of words of con- dition and not of covenant, hardly any resort, as a practical matter, can be had to extrinsic circumstances.*^ This is the view of some courts still.** Other courts, however, have in effect denied the words "on condition," without a re-entry clause, any such legal primary meaning and have treated such words as inherently ambiguous. The result is that a resort to the extrinsic circumstances becomes necessary in every case. The question then arises, what character of extrinsic circumstances are helpful in showing that a condition was meant, or that a covenant only was meant.** § 224. A strong circumstance that a condition is created : If the conveyance is for a special purpose which excludes all beneficial use by the grantee excepting in the line of the special purpose, so that there must be a natural desire when the special purpose is fulfilled or the land no longer required for it, that the grantor should have his land back, the words of condition will usually be taken in their primary meaning. This is espe- cially apt to be the case where land is conveyed for a particular charitable purpose,*^ or for highway purposes.*^ *^ Ante, §§ 128 et seq. ties which they have not seen fit to ■ts Gray v. Blanchard, 8 Pick. make for themselves, nor can the (Mass.) 283; Adams v. Valentine, courts relieve them from their folly, 33 Fed. 1; Hammond v. Port Eoyal however great, in entering into im- Ey. Co., 15 S. C. 19, 32. provident contracts." Per Eom- ii ' ' That conditions subsequent bauer, P. J., in a dissenting opinion are not favored in the law, because in StilweU v. St. L. & H. Ey. Co., their violation works forfeitures, 39 Mo. App. 221. and forfeitures are not favored, no *5 Papst v. Hamilton, 133 Calif, one disputes; but, if any has 631. gone to the- extent of deciding that *<5 May v. Boston, 158 Mass. 21. the courts will disregard a condition, The case of Greene v. O 'Connor, 18 provided for in express terms as a E. I. 56, is not jn any way contra condition, simply because under to this last, for there by the opera- ' surrounding circumstances ' a condi- tion, of a special statute the opening tion was not the wisest thing for the of the strip of land conveyed for a parties . to agree upon, the opinion ptiblic highway was complete, and certainly fails to cite it. Such an there could be no proof of any opinion' .would be subversive of the breach. But see Druecker v. Mo- fundainental. rule, that the courts Laughlin, 235 111. 367. cannot ihake contracts for" the par- 233 § 225] ESTATES [Ch. XIII §225. Post V. Weil: *^ This was an action by the seller against the buyer for specific performance. The defense was that the plaintiff's title was defective, because subject to a con- dition subsequent upon which a forfeiture might be declared. The conditional clause of the deed was as follows: "Provided, always, and these presents are upon this express condition, that the aforesaid premises shall not, nor shall any part thereof, or any building or buildings thereon erected or to be erected, be at any time hereafter used or occupied as a tavern or public house of any kind." At the time of the conveyance the grantor owned other property in the vicinity of that conveyed. A judg- ment below, decreeing specific performance, Avas affirmed on the aground that that language did not make a conditional estate. The court admitted that according to the normal meaning of the words they created an estate upon condition. The absence of the re-entry clause merely permitted the court to go into the surrounding circumstances in aid of construction. The result reached was rested wholly upon the bearing of the circumstances surrounding the making of the deed upon the intention of the parties. The extrinsic circumstances were as follows:** (1) The grantee paid the full consideration for the fee. (2) He received, with the very slight qualification of the deed, the full and complete enjoyment of the property. (3) It was the sole and necessary consequence of complying with the condi- tion that the neighboring lands of the grantor would be bene- fited.^-' (4) By taking the words as making a covenant, the *" 115 N. Y. 361. See also Ayl- words have been taken as condition- ing V. Kramer, 133 Mass. 12. al. Thus, in Blanchard v. The De- *8 These circumstances, or at least troit, Lansing & Lake Michigan E. the first three, were present in Avery E. Co., 31 Mich. 43, where a con- V. N. Y. Cen. E. E. Co., 106 N. Y. veyance to a railroad was made upon 142; Stilwell v. St. L. & H. Ey., 39 the "express condition" that the Mo. App. 221, and Ayling v. said railroad company should buUd Kramer, 133 Mass. 12. and maintain a station upon the land *" If the act to be performed in suitable for the public and that cer- fulfilling the condition may indirect- tain trains should stop, the clause ly benefit some neighboring land of was held to be a condition and not the grantor; yet, if that is not the a covenant. See also Taylor v. Ce- sole, necessary and inevitable result dar Bapids & St. Paul E. B. Co., 25 —if, in addition, there is the ele- la, 371, and Brown v. Chicago & ment of a conveyance for a particu- N. W. By. Co., 83 JT. W. 1003 (la.), lar use in a particular way— the to the same effect. 234 Ch. XIII] CONDITIONAL ESTATES [§ 226 benefit to the neighboring land as such would be fully assured to the owner by a suit in equity for specific performance ; while as a condition the neighboring owner, who was an assignee of the grantor, would have no benefit at all.'*'' §226. Druecker v. McLaughlin: ^i This case follows Post V. Weil ^2 to the extent of holding that the words ' ' on condition," without a re-entry clause, have no legal primary meaning, but are inherently ambiguous, so that resort may be had to extrinsic circumstaiujes in aid of interpretation. The words of condition involved were: "This conveyance is made, however, upon the express condition that said grantee and his assigns shall keep the said premises open as a private way," etc. The surrounding circumstances relied upon to show that these were words of condition were — the fact that all use of the strip in question was denied the grantee except its use in com- mon with others for right of way purposes; the fact that by reason of a small piece of land being retained by the grantor, the land in question was not available as a way appurtenant to any lots in the subdivision except those immediately adjoining, and that the clause could not be enforced as an easement be- cause the grantee did not sign the deed. The last point the court put aside by holding that an easement could be created by reservation without the grantee signing, even though there had been no de facto existence of the easement before the deed. The other points were overcome by looking into the surround- ing circumstances and by finding an intent of the inducement of the parties that the grantee, who bought several lots adjoin- ing the strip in question should receive the condemnation money when the strip was taken as a street. This agreement could not certainly be carried out if the strip were subject to forfeiture. The court insisted also that the words of condition were for the benefit of all lots in the subdivision. On the whole, this case indicates that the Supreme Court was prepared to go further than Post V. Weil in relying upon extrinsic circumstances to turn words of condition into words of covenant.^* 50 In Hammond v. Port Eoyal & seal the instrument, and so a con- Augusta Ey. Co., 15 8. C. 10, the dition was created, court held that the words of eon- 5i 235 111. 367. dition, if taken as words of cove- 3= Ante, § 225. nant, could not create any rights, be- ss Koch i;. Streuter, 232 lU. 594 ; cause the grantee did not sign and Nowak v. Dombrowski, 267 111. 103, 235 § 227] FUTURE INTERESTS [Ch. XIII § 227. Breach of condition, created by act of the parties: The question of whether a condition has been broken has arisen regarding conditions of forfeiture on alienation.^* Thus, in Voris V. Benshaw *^ the conveyance of the fee in 1850 was "upon this express condition, that the said grantee shall not convey the above property, except by lease for a term of years, to any person whomsoever prior to January 1st, 1861. ' ' It was held that this condition was not broken when the grantee gave a lease for 99 years and contracted to sell his reversion. A con- veyance upon condition that the land be not used for other than school purposes is not broken according to the dictum of Trustees of Schools v. Braner ^^ if the land be leased and the income applied to school purposes. A sale of the land by the school trustees would, according to the same case, be a breach of the condition. In leases this sort of condition takes the form of a provision against assignment or subletting. It has been held that a voluntary assignment for the benefit of creditors is the breach of such a condition.*'^ But where one of two joint lessees occupying part of the premises takes in a partner the condition has been held not to be broken.^s In Hawes v. Favor ^^ it was held that there was no breach of a condition in a lease not to destroy the dwelling house on the premises without the lessor's consent. In King v. Edwards ^o there was held to be no default in the payment of rent under the provisions _of a coal lease. In Dockrill v. SchevJi^^ it was held that there was no breach of the condition that the tenant semble, where the condition was that right to run a parallel track along the grantee pay money, the court the same right of way," did not construed the clause as a covenant create a condition, merely. 54 As to the validity of such con- In Elyton Land Company v. South ditions see post, § 711 et seq. and North Alabama R. R. Co., 100 5549 m. 425. Ala. 396, the court went outside tbe so 71 m. 546, 547. record and assumed that the grantor 67 Medinah Temple Co. v. Cur- had land in the vicinity of the rail- rey, 162 111. 441. road which it desired to benefit. It bs Boyd v. Fraternity Hall Assn., then held a clause in a deed of the 16 111. App. 574. right of way which read : ' ' Pro- ts 161 111. 440. vided, however, that any other rail- «» 32 111. App. 558. road running into or through the oi 37 111. App. 44. City of Birmingham shall have the 236 Ch. XIII] CONDITIONAL ESTATES [§229 pay all special assessments, since the landlord had given him no notice to pay them.^^ Topic 2. Conditions Ceeated by Operation op Law. § 228. (1) Upon the conveyance of a, fee simple — In gen- eral: Conditions of this sort are comparatively rare. The one attached to the conveyance of a fee simple passing to the municipality upon a statutory dedication will be fully dealt with hereafter.63 § 229. Mortgages — Difficulty in the rule that when the debt is barred the mortgagee has no right to possession: The law seems settled in this state that the moment the mortgage debt is barred by the statute of limitations no ejectment can be maintained by the mortgagee against the mortgagor or those who claim under him.^* This seems to be the law quite regard- less of any special statute of limitations governing mortgages such as sec. 11 of the act of 1872,65 for the rule obtains in a ease where the right of entry by the mortgagee has not been barred by adverse possession, and where sec. 11 of the act of 1872 has no application, — as, for instance, where the mortgage is not governed by that act because executed before 1872,*^ or where the mortgage, though controlled by the act, is given to secure a debt not evidenced by a writing ^^ so that it is barred 82 See also Gilbert v. Holmes, 64 the doctrine of the text but thp ease 111. 548 and People v. Gilbert, 64 could have been fully disposed of 111. App. 203. In Tomlin v. Blunt, under see. 11 of the Act of 1872 31 111. App. 234, the condition seems {infra, note 65). to have been relied upon as embody- 85 Laws 1871-2, p. 558, § 11 ; E. ing also a covenant. See also, I. C. S. 1874, ch. 83, § 11. E. R. Co. V. Wathen, 17 111. App. ee Pollock v. Maison, 41 111. 516 ; 582; O'Neil v. Caples, 257 111. 528; Emory v. Keighan, 88 111. 482. Springfield, etc. Trae. Co. v. War- st Practically this would occur rick, 249 111. 470. only when a deed absolute on its 83 Post, §§ 283-299. face was construed to be a mort- 6* Pollock V. Maison, 41 111. 516 ; gage securing a debt not evidenced Gibson v. Eees, 50 111. 383, 405 by a writing, for in a mortgage {semhle) ; Emory v. Keighan, 88 securing an open account the mort- 111. 482; Schumann v. Sprague, 189 gage itself is apt to recite the items 111. , 425 (semhle). In this last of the open account and to contain case the court seems to announce a written promise to pay it which 237 230] FUTURE INTERESTS [Ch. XIII in five years.*® This holding has disturbed the law of future interests be- cause of the attempt to explain it upon some theory as to the nature of the mortgagee's legal interest, instead of on the prin- ciple of equitable defenses. § 230. View that the mortgagee has a base or determinable fee: The rule set out in the preceding paragraph having be- come well settled our Supreme Court began to call the title of a mortgagee in fee "in the nature of a base or determinable fee," saying that "the term of its existence is measured by that of the mortgage debt."** If this means that the mort- gagor has a possibility' of reverter upon the termination of a fee simple it is open to some objection. Since the statute of quia emptores the possibility of the existence of such an interest by act of the parties may well be doubted.'^'' But even if the mortgagor has a possibility of reverter arising by operation of law,'^ such an interest would not, in general, be transferable by deed '^2 as it is admitted the mortgagor's is. Under such a view it would be difiBcult to explain the holding that even after the debt is barred, yet, by a new promise or part pay- ment, all the rights of the mortgagee spring into existence again and he may maintain ejectment.''^ For how, if the mort- gagee 's interest terminate by its own limitation, can it ever arise again? Such juggling in legal titles would seem to be indefensible. § 231. View that the mortgagee's interest after default is subject to a condition subsequent: It is believed, also, that it cannot be satisfactorily argued that there is in the mortgage would be barred only by the ten-year "> Post, § 302. statute. See Field v. Brokaw, 148 TiWare v. Schintz, 190 111. 189, 111. 654. 193. 68 Laws 1871-2, p. 559; E. S. 1874, 72 Post, § 302. ch. 83, § 15. 73 This rule has been applied in 09 Mr. Justice Mulkey in Barrett the case of bills to foreclose : V. Hinckley, 124 111. 32, 46, seems Sehifferstein v. Allison, 123 111. 662. to have first used these expressions. No reason is perceived why the same They were repeated in Lightcap v. result should not obtain in case the Bradley, 186 111. 510, 522, and mortgagee brings ejectment, adopted in Ware v. Schintz, 190 111. 189, 193. 238 Ch. XIII] CONDITIONAL ESTATES [§-231 a condition subsequent which gives the mortgagor a right of entry upon the extinguishment of the debt by the statute of limi- tations.! There is, of course, no such condition in fact expressed, so it must arise, if at all, by operation of law. But, even so, the interest of the mortgagor would be one that is not usually transferable by deed.''* This, as under the view of § 230, is a constant difficulty with working out the peculiarities of the estate of the mortgagee upon principles governing legal future inter- ests generally.''^ There is another diiHculty which, however, it is believed may be met. Statutes of limitations barring the owner.'s remedy against a stranger do not operate to transfer his title to the stranger, but the stranger is in of a new and original title by the statute. It might be thought, then, that a statute which declared that a mortgagor should be invested with a new and original legal title against the mortgagee after the mortgage debt was barred or after ten years of default in payment of the debt, would be unconstitutional. Such an act applying only wjien the mortgagor remained in possession during the ten years would be valid enough as a short statute of limitations for ad- verse holders of a particular sort. So, if the act applied when the premises were vacant and unoccupied provided, at the end of the ten years, the mortgagor took possession, it might be sus- tained. Suppose, now, that the act applied even though the mortgagee was in possession all the time. It seems to be the intimation of Mr. Justice Cartwright that it would be uncon- stitutional, as taking the mortgagee 's legal title without due process of law.'''^ But is there not a perfectly rational ground ■ for destroying the mortgagee 's legal rights, held by him as a security, when the debt secured is lost? It is only another way of eifectually barring all remedy for the collection of the debt. There is no arbitrary deprivation in such action. T4 Post, i§ 240, 300, 302. the premises, not by any new title, T5 Observe an objection which but by the title which he always the court itself has raised against had. Statutes of limitation do not this view: In Lightcap v. Bradley, transfer title from one to another; 186 in. 510, 528, Mr. Justice Cart- and a statute of limitations which Wright said: "The mortgagor's would have the effect of transfer- title is then [after the debt is ring the legal title back from the barred by the statute of limita- mortgagee to the mortgagor would tions] freed from the title of the be unconstitutional." mortgagee, and he is the owner of ^e j,^. 239 § 232] FUTURE INTERESTS [Ch. XIII § 232. Barring of the debt is simply an equitable defence to the mortgagee's legal title: The writer suggests that the barring of the debt by the statute of limitations is simply an equitable defence to the mortgagee's legal title, and that this equitable defence may be urged in an action of ejectment. Equity may say that the debt is the real thing and that when this is extinguished in any way, either by payment after the day it is due, or by being barred by the statute of limitations, or in any other mode, equity would enjoin the action at law for possession. This would furnish the basis for the equitable de- fence. On the same reasoning equity would, upon a bill filed, decree a reconveyance.'^'^ The difficulty with this explanation is that the extraordinary jurisdiction of equity is not usually to be invoked unless the com- plainant is willing to do equity, and doing equity in the case put would seem to require payment of the sum due. Our Su- preme Court has, however, decreed otherwise,'^* and the subse- quent act of the legislature ''^^ providing that "no person shall commence an action or make a sale to foreclose any mortgage or deed of trust in the nature of a mortgage, unless within ten years after the right of action or right to make such sale ac- crues," "if not actually covering the ease of ejectment by the mortgagee, would, at least, seem to have supplemented and re- inforced the rule already established by the decisions. Neverthe- less, the recent case of Fitch v. Miller *" indicates that we may still hope to overthrow the rule of the earlier cases ®i to the ef- fect that the mortgagee cannot maintain ejectment after his debt is barred. Nor need we despair of confining the operation of the statute to that of barring the right to foreclose or sell under a power, thus leaving the mortgagee to his legal title, which must prevail unless the mortgagor, without laches, seeksi to redeem. Fitch V. Miller actually holds that where a deed, absolute on " In Murray v. Emery, 187 111. 's Ante, § 229. 408, the mortgagor 's transferee 79 E. S. 1874, ch. 83, § 11. filed a bill to remove the trust deed 8o 200 111. 170. as a cloud. It was dismissed be- si Ante, §229. cause the trust deed and debt were not barred by the statute of limita- tions. 240 Ch. XIII] CONDITIONAL ESTATES [§232 its face, was, in equity, a mortgage by virtue of an instrument in writing, but not under seal, stating that it was the intention of the parties that the deed should be considered a mortgage, and when seventeen years had elapsed since default ' and no tender of the amount due had ever been made, no petition in equity for partition could be maintained by the heirs of the mortgagor. The reasoning is, that since the mortgagor can in such a case, have no remedy except in equity, he shall have none there, if he is guilty of laches and fails to do equity by tendering the amount of the loan. SemMe, that ten years' default and failure to tender the amount due are always prima facie sufficient to bar the mort- gagor 's relief in equity. SemMe, also, that mere failure to tender the amount of the loan, even though the debt be barred, will de- prive the mortgagor of relief in equity. The court also intimates that the ten year limitation act does not prevent the mortgagee from standing on his legal title. This reasoning must, it is be- lieved, apply equally well to ihe case of the ordinary mortgage with a defeasance clause. After default the mortgagee has the legal title and the right to possession. The mortgagor's rights are wholly in equity. Suppose, then, the mortgagor be in default for ten years, and then the mortgagee, relying upon his legal title, brings ejectment. If there is any defence it is a purely equitable one — a defence founded upon the fact that the mortgagor could have a bill for an injunction to restrain the mortgagee's action at law. If equity would not interfere di-- rectly because of the mortgagor's laches and because of his failure to tender the amount due, then there should be no defence at law; and if, in partition without tender and with laches, the mortgagor could have no relief surely the same court of equity would not grant an injunction restraining the mort- gagee's suit at law or the mortgagee's defence of legal title in an action of ejectment against him by the mortgagor. If that be so, why does not Fitch v. Miller go a long way toward overrul- ing the earlier eases ^^ which held that, when the mortgage debt, is barred, the mortgagee cannot bring ejectment? "Why does it not practically confine the operation of sec. 11 of the limita- tion act to foreclosure proceedings and sales under powers? It is submitted, however, that, if the view that the mort- 82 Id. Kales rut. Int.— 16 241 § 233] FUTURE INTEKESTS [Ch. XIII gagee cannot maintain ejectment after the debt is barred be adopted, the theory that the mortgagor has an equitable de- fence explains the result with the least disturbance to well settled principles, for the mortgagor's equitable interest may always be transferred and there is no difficulty about his transferee being allowed to take advantage of the same equitable defences that he might have availed himself of. It also explains rationally the holding that when the statute of limitations against the debt has once been waived by a new promise or a part pay- ment the mortgagee becomes entitled to all his old rights,- for at once upon the waiver the equitable defence is gone and there is no impediment to an action founded upon the mortgagee's legal title. § 233. In case of lease-holda — Implied condition that a ten- ant shall not repudiate the tenancy and claim to hold against the landlord: It is clear that if a tenant not only disclaims to hold under his landlord but acknowledges another as such and pays rent to him, the former may, without any formality, elect to forfeit the tenancy and sue for possession in a forcible detainer suit against the tenant and the new landlord whom he has acknowledged.** It seems also that the giving up of posses- sion by a tenant to a stranger who takes an assignment or sub- lease from the tenant, but claims to hold under a paramount title is a sufficient ground for the immediate forfeiture of the original lease. Upon such forfeiture the landlord may at once maintain forcible detainer against the stranger.®* Even a mere oral disclaimer by the tenant coupled with the claim of title in himself is, in this state, a sufficient ground of forfeiture.*^ The attempt by a tenant to transfer more than he has operates merely as an assignment of his interest.*^ It does not seem that such a conveyance should by itself furnish a ground of for- feiture.*^ 83 Ballance v. Fortier, 3 Gilm. 85 Fusselman v. Worthington, 14 (111.) 291; Fortier v. Ballance, 5 111. 135; McGinnis v. Fernandas, Gilm. (111.) 41; McCartney «. Hunt, 126 111. 228; Brown v. Keller, 32 16 111. 76; Cox v. Cunningham, 77 111. 151; Herrell v. Sizeland, 81 111. 545; Doty v. Burdick, 83 111. III. 457; Wood v. Morton, 11 111. 473; Wall v. Goodenongh, 16 HI. 547. 415 (semble). so Xurner v. Hauee, 199 HI. 464. »* Hardio v. Forsytbe, 99 111. 312 ; See also post, § 384. ThomasBOn -y. Wilson, 146 111. 384. 8' It has been said that any con- 242 Ch. XIII] CONDITIONAL ESTATES [§235 §234. By acts of 1865 «« and 1873 s^— Prior to 1865 no ground of forfeiture in the absence of express condition — In- troductory: Prior to the act of 1865 there was an important distinction between covenants and conditions in leases for years. For the breach of a covenant there was no ground of forfeiture. To present a ground of forfeiture it was necessary that the breach of the covenant should also be made by express lan- guage the breach of a condition subsequent. Unless, therefore, the non-payment of rent were made in terms a ground of for- feiture the landlord's only remedy was to sue for rent due and wait for the expiration of the tenancy. Direct authority upon this point is not forthcoming. No opinion, however, has been found against it and, on principle, it is believed that it must be sound. § 235. On principle : There was, it is true, an implied con- dition, upon which the feudal vassal held of his lord, that the vassal should perform the feudal services and that default in their performance was ground for forfeiture though no condi- tion was ever expressed.^" From a consideration, however, of the origin of leasehold interests in terms for years, it will appear that this feudal doctrine of implied conditions could have no application whatever to them. Terms for years started, as Sir Frederick Pollock has pointed out,^^ in the conception that "the relation between the landlord and the tenant is simply a personal veyance by a tenant at sufferance demand was not satisfied within a will forfeit the tenancy: Proctor v. certain time. (Wright on ^enures, Tows, 115 111. 138, 150. The owner, 196-197.) Still later by the statute however, is always entitled to pos- of 52 Hen. Ill, o. 22, the right session as against a tenant at suffer- of forfeiture by inferior lords was ance. entirely taken away, leaving them 88 Laws 1865, p. 107, § 2. In force only a right to distrain upon chat- Feb. 16, 1865. Be-enacted in 1873; tels. (Wright on Tenures, 200.) By Laws 1873, p. 119, § 9; see B. S. the statutes of Gloucester (6 Ed. I, 1874, ch. 80, §9. ch. 4), and Westminster (13 Ed. I, 89 Laws 1873, p. 119, § 8. In ch. 21) the right of forfeiture was force July 1st, 1873; see E. S. 1874, somewhat restored. (Wright on eh. 30, § 8. Tenures, 201.) 9" But prior to the time of Hen. What then is the law to-day III even this right was modified, where a life estate is, created re- so that the lord was only put into serving rent, but no express condi- possession of the fee until the de- tion of forfeiture? Is the nonpay- mand should be satisfied, and a ment of rent a cause of forfeiture? forfeiture could be had only if the si Land Laws, 137. 243 § 236] FUTURE INTERESTS [Ch. XIII contract." From a strictly feudal point of view there was "not an estate at all, only a personal claim against the freeholder to be allowed to occupy the land ^n accordance with the agree- ment. ' ' ^2 But as early as the thirteenth century it came to be the law that if the tenant "was ejected in breach of his land- lord's agreement, he could recover not merely compensation for being turned out, but the possession itself; and this not only against the original landlord but against a purchaser from him. ' ' 9* Thus, the leasehold became property, but it was dis- tinct at almost every point from the interest of the feudal ten- ant. "Being in legal theory," writes Sir Frederick PoUock,^* "the creature of contract, it has neither the dignities nor the burdens peculiar to freehold tenures. It is not the subject of feudal modes of conveyance, nor of the feudal rules of in- heritance. No particular form of words is necessary for its creation ; * * * . It could always be disposed of by will if the tenant died before the expiration of the term; and in case of such death the law deals with it in the same way as cattle or money and it goes to the executor, as part of the 'personal es- tate, ' to be administered by the same rules as movable property. If undisposed of by wUl, the leasehold tenant's interest belongs on his death to the same persons, and in the same proportions, as cash or railway shares which he has not disposed of.*^ There is no such thing as an heir of leaseholds. In one word, which for the lawyer includes all that has been said, a leasehold is not real but personal estate." The origin then and consequent de- velopment of the status of a leasehold interest preclude the appli- cation to it of any feudal rule raising an implied condition im- posing a forfeiture for non-payment of rent, and make the in- sertion of such a condition in express terms necessary. § 236. Not altered by any statute down to 1865 : This it is believed must have been the law of Illinois down to 1865.^* The act of 1827 ^'^ which now appears as see. 4 of the Landlord and Tenant Act *® merely gave the landlord the right to com- 92 Pollock on Land Laws, 138, se C!hadwiek v. Parker, 44 111. ante, §§ 21, 31, 32. 326, 335-336, infra, note 4 {semhle). 93 Pollock on Land Laws, 138. 9? E. S. 1827, p. 279, §4; E. S. 94 Land Laws, 137-138. 1833, p. 675, §4; E. S. 1839, p. 96 Thornton v. Mehring, 117 111. 435, §4; E. S. 1845, p. 334, §4. 55. 98 E. s. 1874, ch. 80, §4. 244 Ch. XIII] CONDITIONAL ESTATES [§237 mence ejectment without any formal demand or re-entry where one-half year's rent was in arrear and unpaid, provided "the landlord or lessor to whom such rent is due has a right by law to re-enter for non-payment thereof." This statute, then, only operated if the landlord already had a right to re-enter by a clause of forfeiture in the lease. § 237. Sec. 2 of the act of 1865 ^^ afterwards appearing as sec. 9 of the act of 1873 : ^ This statute was a wide departure from the common law. It proceeded to minimize the distinction between covenants and conditions in leases by making all cov- enants in leases conditions. More accurately speaking every breach of covenant in a lease is, since the act of 1865, a cause of forfeiture which may be taken advantage of by the statutory ten days' notice to quit. The language of the act as it now appears in R. S. 1874 ^ is : " When default is made in any of the terms of a lease,^ it shall not be necessary to give more than ten days' notice to quit or of the termination of such ten- ancy, and the same may be terminated on giving such notice to quit at any time after such default in any of the terms of such lease. ' ' What is meant by ' ' default in any of the terms of such lease"? Does it mean breaches of express conditions, or does it include also breaches of covenants or promises — as for instance the usual one to pay rent? It would seem that the expression used was broad enough to cover all contracts, stipula- tions or covenants, even though no condition was expressed, thus in effect, turning all such contracts, stipulations and cov- enants into conditions by force of the statute. This construction is borne out by the fact that in the previous act of 1827 the legislature gave the landlord a summary remedy only if he had the ' ' right by law to re-enter. ' ' There are some pointed dicta * 99 Laws, 1865, p. 107; ante, §234, 111. 203, 205; Woods i). Souey, 166 note 88. ' 111. 407, 420. iLaws, 1873, p. 118, 119; E. S. In Chadwick v. Parker, supra, 1874, ehap. 80, see. 9, p. 658, ante, Walker, C. J., said: "If his [the §234, note 89. landlord's] lease contains a clause 2 Ohap. 80, sec. 9. cf reentry, he can, if he choose re- 3 May not the term ' ' lease ' ' in- sort to- his common law remedy, elude a lease for life? 'or failing in that, he may, after de- * Chadwick v. Parker, 44 ' 111. fault, give notice [under the stat- 326, 335-336; Leary v. Pattison, 66 ute of 1865] * * * and on the 245 238] PUTUBE INTEKKSTS [Ch. XIII and at least one clear decision of our Supreme Court ^ in favor of this view. § 238, Sec. 8 of the a«t of 1873: « The innovation carried out in the act of 1865 was again applied in Sec. 8 of the act of 1873. That provides : ' ' The landlord '' or his agent may, at any time after rent is due, demand payment thereof, and notify the tenant, in writing, that unless payment is made within a time mentioned in such notice, not less than five days after the service thereof, the lease will be terminated. If the tenant shall not, within the time mentioned in such notice, pay the rent due, the landlord may consider the lease ended and sue for the pos- session under the statute in relation to forcible entry and de- tainer, or maintain ejectment without further notice or de- mand." It is, if possible, even more clear in this act than in failure of the tenant to pay such arrears he may, after the expiration of the time, bring his suit without further notice. If the lease contains no such clause, then the landlord may, after default in pay- ment, gfiye a similar notice, and with like effect. This was no doubt what was intended by the legislature, as it brings within its provisions a large class of cases, not embraced in the common law; and affords a remedy in such cases, not previously possessed, of terminating a lease and regaining possession, where an insolvent tenant would not pay his rent, in- stead of leaving the landlord, as he was before, to his action for the recovery of his rent.'-' This above passage is quoted with approval in Woods v. Soucy, supra. In Leary l>. Pattison, supra, the Court speaks of Chadwick v. Parker as holding: "that the sec- ond section of the Act of 1865 was designed to dispense with the ne- cessity of making a common law demand for rent on the very day it became due, and to give a rem- edy when the lease contained iu> clause for a re-entry." 5 Burt V. Trench, 70 111. 254. Here the lease was by parol and we may fairly assume that there was no express condition of for- feiture, yet it was held that a for- feiture for default in rent was properly perfected under the Act of 1865. Observe also that in Dickenson V. Petrie, 38 111. App. 155, and Hayes v. Lawver, 83 HI. 182, there was not so far as the report shows any condition of forfeiture. In Drew v. Mosbarger, 104 111. App. 635, it was held in terms that a lease might be forfeited by a ten-day notice to quit for a breach of covenant to cut burrs, even though there was no express condi- tion of forfeiture. 6 Laws, 1873, p. 118, 119; E. S. 1874, ch. 80, see. 8, p. 658; Hurd's B. 8. 1903, ch. 80, sec. 8, p. 477. 7 Observe that the statute refers to landlords rather than to leases. Will it, then, govern in the case of a lease for lifef 246 Ch. XIII] CONDITIONAL ESTATES [§240 the act of 1865 that the default in payment of rent is a cause of forfeiture even though the lease contains no express condi- tion. Our Supreme Court seems to have so held.* § 239. Whether these acts have any retroactive effect : * If the acts of 1865 and 1873 are sufficient for the purpose of cre- ating a forfeiture of leaseholds, even though the lease contains no express condition,!" it is difficult to see how they can affect any leases made prior to the time these acts took effect, and in which there is no express clause of forfeiture. If the statutes were held to operate in such a case, they wo'iild most clearly change the already existing contract of the parties. They would in fact impair it directly and be unconstitutional. TITLE III. WHO MAY TAKE ADVANTAGE OF A BEEACH OP A CONDITION SUBSEQUENT AND WHO TAKE SUBJECT TO THE CONDITION. § 240. When attached to a fee simple : The general rule was that the right of entry for condition broken could only be taken advantage of by the grantor or his heirs.^^ So our Su- preme Court has said,!^ and in Presbyterian Church v. Ven- able 1" it was actually held that a possibility of reverter upon the dissolution of a corporation did not pass by a devise prior to the dissolution. Nevertheless, the court has held (though noth- 8 Farnam v. Hohman, 90 111. 239 111. 634. Observe, however, that 312. See also Bell v. Bruhn, 30 111. the assignee of the dominant estate App. 300. may forfeit an easement which is 9 See further on this matter, subject to a condition subsequent: post, § 253. Eeichenbach v. Washington By., 10 ioAnte, §§237, 238. Wash. 357. " Gray 's Eule against Perpetui- 12 Board of Education v. Trustees, ties, § 12 ; Underhill v. Saratoga, etc., 63 111. 204, 205. Observe also etc., Ey. Co., 20 Barb. (N. Y.) 455; the language of Sexton v. Chicago Sherman v. Town of Jefferson, 274 Storage Co., 129 111. 318, 332. III. 294; Oreen v. Old People's is 159 m. 215; Voris u. Eenshaw, Home, 269 Bl. 134 (heirs of . de- 49 III. 425, might have been put on visor). Neither a stranger nor the the ground that the grantee of the grantee can set up the breach of heirs of the original grantor, who, condition: Joliet Gas Light Co. v. as was contended, had imposed a Sutherland, 68 111. App. 230; Wil- condition of forfeiture, was trying loughby V. Lawrence, 116 111. 11 ; to take advantage of the forfeiture, Golconda Ey. v. Gulf Lines E. B., if any. 265 m. 194; O'Donnell v. Eobson, 247 § 241] FUTURE INTERESTS [Ch. XIII ing was made of the point in either case) that the right of entry was assignable by a general conveyance i* of the land which was subject to the condition, and that a devisee ^^ of the grantor could take advantage of the breach. The latter holding may possibly be supported on the ground that the language of our statute of wiUs in regard to what interest in land may be devised ^^ is broad enough to include the right of entry for con- dition bi-oken. § 241. To an estate for life or years : Prior to the statute of Hen. VIII. 1'^ the rule as to who might take advantage of the breach of a condition subsequent was the same in case of a tenancy 'for life or years as in the case of a fee simple, — only the feoffor, or lessor and his heirs could take advantage of the right of entry for condition broken.^* By the statute of Hen. VIII., however, this was altered and the assignee of the reversioner was entitled to enforce a forfeiture.^^ This statute may fairly be regarded as part of the common law of this state.^" In addi- tion we have a further act of 1873 ^^ which is sufficient to ac- complish the same result.^^ A concurrent lease is "one granted for a term which is to commence before the expiration or other determination of a pre- vious lease of the same premises to another person. If under seal it operates as an assignment of part of the reversion during the "Helm V. Webster, 85 111. 116, Co., 169 111. 112, 116; Scheldt v. post, § 290. Belz, 4 111. App. 431, 435, the right 15 Gray v. Chicago, M. & St. P. of the assignee of the reversion to Ey., 189 111. 400. In Boone v. sue for and recover rent reserved Clark, 129 111 466, 498, the Court in the lease under the statute of said: "A breach of a condition Hen. VIII was sustained, subsequent can be taken advantage As to how far upon the assign- of only by the grantor, his heirs or ment of a remaiader or reversion devisees." attornment by the tenant in posses- 16 Post, § 325. sion is necessary in Illinois see post, 17 32 Hen. VIII, c. 34; Co. Lit. §379. .215a; 5 Gray's Cases on Property, 21 Laws 1873, p. 120, §14; K. S. 2nd ed. 4; 2 Starr & Curtis, 111. 1874, oh. 80, sec. 14, Stats. (1896), p. 2515... 22 Thomasson v. Wilson, 146 111. IS Ante, §240,. 384, 389-390; Fisher v. Smith, 48 19 In/ra, note 20. 111. 184; Springer v. Chicago Real 20 In Fisher v. Deering, 60 111. Estate Loan Co., 202 111. 17, 26 114, 115; Barnes v. Northern Trust (semhle). 248 Ch. XIII] CONDITIONAL ESTATES [§ 243 continuance of such previous lease. " ^^ It is clear that the holder of the concurrent lease has a right to collect rent to be P9,id during the then residue of the term granted by the first lease and the continuance of the concurrent lease.^* In Drew v. Mosbarger ^s the Appellate Court for the 3rd district went a little farther and held that the holder of the concurrent lease could declare a forfeiture of the lease in possession because of the failure of the tenant in possession to perform a stipulation of his lease. §242. Who take subject to the condition: In the pictur- esque language of Shepard's Touchstone.^" "The condition doth always attend and wait upon the estate or thing whereunto it is annexed ; so that although the same do pass through the hands of an hundred men, yet it is subject to the condition stiU; and albeit some of them be persons privileged in divers cases, as the king, infants, and women covert, yet they are also bound by the condition.^'^ And a man that comes to the thing by wrong, as a disseisor of land, whereof there is an estate upon condition in being, shall hold the same subject to the condition also." TITLE IV. EFFECT OF THE BREACH OF A CONDITION SUBSEQUENT AND MODE OF PERFECTING A FORFEITURE. § 243. Estate voidable, not void':- The breach of a condi- tion subsequent does not operate at once to avoid the grantee's estate, but only enables him, in whose favor the condition is imposed, to avoid the estate if he so elects.^* In shor^, no mat- 23 Woodf all, Landlord and Tenant, paying rent under it : Webster v. 16th ed. (1898), 222. Nichols, 104 111. 160, 171; Sexton 2'■ Consolidated Coal Co. v. Schae- ss Ante, § 246. fer, 135 III. 210. so Ante, § 237. 88 Sec. 11 reads: "When any si Ante, % 238. such demand is made or notice 0249 m. 21I, 216. served by an officer authorized to as 166 111. 407, 416-417. 259 §254] FUTURE INTERESTS [Ch. XIII entered into before 1865. The lease involved in that case con- tained a clause of forfeiture for default in the payment of rent;^^ so that the act of 1865 was not given any retroactive operation, which would result in the creation of a cause of forfeiture which- was not expressly provided for by the act of the parties. Nor could the act of 1865 be given any such retroactive operation without impairing the obligation of the contract of lease.** If however, the act be construed to have a retroactive effect as far as the mode of creating a forfeiture is concerned it is diffi- cult to see why it must not equally be construed to have a retro- active effect so far as the creation of a new cause of forfeiture goes. But, if so construed, it is void as far as the latter effect is concerned and, since both applications of the act are in^ separable,"^ the whole must be bad. The way to have met this difficulty would have been to hold either that the act had nO retroactive effect of any kind, or else that it had no effect at all unless there was an express condition, of fdrfeiture in the lease. In Woods v. Saucy our Supreme Court refused to take the former step and, in cases which we have already examined, it has refused to take the latter.^^ § 254. Method of perfecting a forfeiture as altered by the agreement of the parties — Provisions for the benefit of the landlord: (1) Suppose he has a responsible tenant who wants to quit : If he declares a forfeiture that is exactly what the ten- ant desires. On the other hand, if the landlord accepts posses- sion of the premises from the tenant the claim will be made that the lease has been terminated by a surrender.^' The first of these difficulties has been overcome by a provision for entry by the landlord without forfeiture.* * The second might con- Bi Ante, § 239. , so^nte, §§ 237, 238. 95 Cooley, Oonstit. Lim., 1st ed., »' ~West Side Auction Co. v. pp. 178-179; People v. Cooper, 83 Conn. Mut. Life Ins. Go., 186 III. 111. 585, 595; Hinze v. People, 92 156; Marshall v. Grosse Clothing 111. 406, 424; People v. Martin, 178 Co., 184 111. 421; Hmniston, Keel- Ill. 611, 625; People v. Knopf, 183 ing & Co. v. Wheeler, 175 111. 514.x 111. 410, 422 ; Noel 1;. People, 187 ss Grommes v. St. Paul Trust Co., 111. 587, 597; Donnersberger v. 147 111. 634; Heims Brg. Co. 'v. Prendergast, 128 111. 229, 234; Plannery, 137 111. 309. Cf, J[o: People i;. Hazelwood, 116 111. 319 hannes v. Kielgast, 27 111. App.\ 576. 326; Strong v. Dignan, 207 111. 385, 394. 260 Ch. XIII] CONDITIONAL ESTATES [§ 257 ceivably be obviated by a clause that any surrender shall be in writing signed by the party to be charged.®^ (2) When an irresponsible tenant pays no rent and under; takes to keep possession he is met by clauses providing for for- feiture without entry, without demand for rent and without notice tp quit.^ § 255. Provision for the protection of the tenant : No rea- son is perceived why the common law and statutory modes of forfeiture may not be done away with by mutual agreement for the benefit of the tenant as well as of the landlord. Thus, it may be provided (and this is especially appropriate in long leases), that a forfeiture shajl occur only upon a longer notice than that provided by the statute; and this, it is submitted, will exclude any forfeiture upon a five or ten day notice. ^ TITLE V. EEMEDY IN CASE OF FORFEITUEE DULY PERFECTED. §256. By ejectment or forcible detainer suit: An action of ejectment would seem to be an appropriate remedy in all cases of forfeiture duly perfected. Where a fee simple hag been for- feited, forcible entry and detainer may not be available, since the forcible entry and detainer statute provides a summary rem- edy for possession in case of forfeiture onjy "when any lessee of the lands or tenements, or any person holding under him, holds possession without right after the determination of the lease or tenancy by its own limitation, condition or terms, or by notice to quit or otherwise." ^ § 257. Actual entry upon the land— Action of forcible entry and detainer for possession by the one put out — Introductory: A forfeiture having been duly perfected, how far may the grantor or landlord physically enter and take possession? To 99 Perhaps this would not help 245 ; Belinski v. Brand, 76 111. App. matters much for it might fairly 404; Mueller v. Kuhn, 46 111. App. be contended that the. parties could 496. See, however. Woodward v. waive such a clause, by mutual agree- . Cone/ 73 • 111. 241, where the lan- ment, and that the acts relied upon guage of the lease was not suflS^eient as a surrender by mutual assent to constitute a waiver, could be used also to show such a 2 Crandall v. Sorg, 99 111. App. ■waiver. 22. 1 Espen V. HinchlifEe, 131 111. 468; a R. S. 1874, ch. 57, sec. 1, § 4. Williams v. Vanderbiltj 145 111. 238, 261 § 258] FUTURE INTERESTS [Ch. XIII answer this question let us suppose that he, does actually enter and take possession. "Will he have any defence to the several actions which the one put out may bring against him? Sup- pose an action of forcible entry is brought. Is it any defence that at the time the defendant entered, a forfeiture had been perfected and he had a right to possession? § 258. Where the entry is forcible— Before 1872 : The an- swer to the question of the preceding paragraph must depend upon the construction to be given our forcible entry and de- tainer statutes. Up to 1872 the form of the act so far as it touches the present problem followed the first section of the act of 1827.* It was this : "If any person shall make any entry into any lands, ten- ements or other possessions, except in cases whei'e entry is given by law, or shall make any such entry by force, * * * such person shall be adjudged guilty of a forcible entry and de- tainer * * * " It was further provided that if the defendant be found guilty, judgment should be given ' ' for the plaintiff to have restitution of the premises. ' ' By the literal language of this act, a forcible entry by one having the immediate right to possession gave to the one put out the statutory remedy for repossession, yet this was an absurd result, for when accomplished it simply produced further liti- gation, viz., an action of forcible entry and detainer or ejectment against the person who had just been restored by judicial process to an unlawful possession.^ It has even been said that the effect of such a construction of the act was to produce in some degree the evil sought to be avoided, by encouraging the scramble for a possession which, however defective the title upon which it was founded might be, could only be attacked by an action involving the validity of the plaintiff's title.® Perhaps such a result was impossible under the English statutes on forcible entry and de- *E. S. 1827, p. 230; R. S. 1833, 5 "Eight of a Landlord to Regain p. 311; R. S. 1839, p. 313; E. S. Possession ty Force," 4 Am. Law 1845, ch. 43, p 256; Gross' Stats. Rev. 429, 447; dissenting opinion of 111., vol. 1, ch. 43, p. 299; super- of Mills, J., in Chiles v. Stephens, seded by Forcible Entry and De- 3 A. K. Marshall (Ky.), 340, 350. tainer Act of 1872 (Gross' Stats, of s "Eight of a Landlord to Regain 111., vol. 2, ch. 43, p. 187). Re- Possession by Force," 4 Am. Law pealed in terms by R. S. 1874, cli. Rev. 429, 447. 57, sec. 21. 262 Ch. XIII] CONDITIONAL ESTATES [§259 tainer, for those acts had a distinct criminal character and opera- tion by which the one having the right to possession might be punished for a forcible entry, even though he were not restored to possession J Furthermore, restitution under the English acts was never awarded ' ' except to a freeholder under the ^stat. 8 Hen. VI., or to a tenant for years under the stat. 21, Jac. I.," * and where, under these statutes, a writ of restitution was sought, "it was requisite for the title of the plaintiff to be truly set out, and mere possession made a prima facie title, only if not traversed. ' ' *• The Illinois , forcible entry and detainer act of 1827, however, was not in character or operation a criminal stat- ute ; nor did it limit the right of restitution in any way so as to exclude the case where the plaintiff had no right to possession. Perhaps, then, there was no alternative but to follow the lan- guage of the act and restore to a wrongful possession the one forcibly put out by him who had the immediate right to posses- sion. At all events that is what our Supreme Court did.^" § 259. Since 1872 : In 1872 our forcible entry and detainer statute was fundamentally changed,ii being altered to conform pretty closely to the provision of the Massachusetts act of 1836,^2 then in force in that state as chap. 137 of the Gen. Stats, of 1860.13 Sec. 1 of the Illinois act follows word for word sec. 1 7 Turner v. Meymott, 1 Bing. 158 ^of a Landlord to Eegain Possession (sembie); Taunton v. Costar, 7 T. by Force," 4 Am. Law Kev. 429, B. 431 (semile); Taylor v. Cole, 437; 1 JCawkins, Pleas of the Crown, S'T. E. 292 (semhle). 495, see. 8. 8 "Bight of a Landlord to Be- lo Baker v. Hays, 28 111. 387; gain Possession by Force," 4 Am. Shoudy v. School Directors, 32 111. Law Eev. 429, 446. See also, F. N. £90; Smith v. Hoag, 45 111. 250; B., 248 H. Of. 1 Hawkins, Pleas Huftalin v. Misner, 70 111. 205. See of the Crown, 508, see. 47 (chap. ^^^^ chiles v. Stephens, 3 A. K. 28 of Forcible Entries and Detain- Marshall (Ky.), 340: "Eight of a Landlord to Eegain Possession, by Force," 4 Am. Law Eev. 429, 446, ers). 9 Bex V. Wilson, 8 T. E. 857, 360 ; 2 Chit. Crim. Law, 1136. See also .^. „ , ,, „, ,, in„ "Bight of a Landlord to Eegain "^^''^ ^'''"' ''■ ^'^''^ ^^ ^"j /^^ Possession by Force," 4 Am.' Law ^""^ ^^"S "■ ^^- ^°^^« ^^^ ^^^^t Eev. 429, 446. ^°-' ^^ ^°- ^^■ It seems clear the one forcibly "Gross' 111. Stats. Vol. 2 (1871- put out had no quA tarn action for 1872) Ch. 48, p. 187; E. S. 1874 damages under the English stat- Ch. 57j p. 535. utes if the defendant showed a right i^ e. S. Mass. (1836) Ch. 104. to possession in himself: "Eight is S'ee also Jub. Stats. Mass. 263 § 259] FUTURE INTERESTS [Ch. XIII of the Massachusetts act.^* It reads: "No person shall make an entry into lands or tenements except in cases where entry is allowed by law, and in such cases he shall not enter with force but in a peaceable manner. " Sec. 2 of the Illinois act is modeled upon sec. 2 of the Massachusetts statute as it appears in E, S. (Mass. 1836) ch. 104, and in Genl. Stats. (Mass. 1860), ch: 137.*' This is the Section which actually gives the remedy for restitution or possession in certain cases. The Illinois statute provides in part as follows : " § 2. The person entitled to the possession of lands or tenements, may be restored thereto in the manner hereinafter provided : First — ^When a forcible entry is made thereon. Second — ^When a peaceable entry is made and the possession is unlawfully withheld." Like the Massachusetts acts 1® the Illinois statute provides in sec. 5 that the complaiiit shall be made by the party "entitled to possession." Like the Massachusetts acts ^'' the Illinois statute, in sections 13, 14 and 16, provides that the plaintiff shall have an execution for pos- session "if it shall appear that the plaintiff is entitled to pos- session, ' ' and ' ' if the plaintiff is non-suited or fails to prove his right to possession, the defendant shall have judgment." In the recent Massachusetts case of Page v. Dwight ^^ it was held that since 1836, with the exception of one year from 1851 to 1852, it had been the law under the Massachusetts forcible entry and detainer statutes that one forcibly put out by another, (the latter having the immediate right to possession) could not bring forcible entry and detainer. The court conceded- that under the early laws of Massachusetts ' ' every forcible entry by a private individual was unlawful, and might subject him to pun- ishment, and that in addition, in most eases, the person forcibly ' put out of possession might be put back by legal proceedings (1882), Ch. 175; Eev. Laws Mass. sec. 4; Genl. Stats.^Mass, (1860), (1902), Ch. 181. Ch. 137, sec. 5; Pub. Stats. Mass. 11 E. S. Mass. (1836), Ch. 104, (1882), Ch. 175, see. 2; Eev. Laws sec. 1; Genl. Stats. Mass. (1860), Mass. (1902), Ch. 181, sec. 2. Ch. 137, see. 1; Pub. Stats. Mass. "E. S. Mass. (1836), Ch. 104, (1882), Ch. 126, see. 15; Eev. Laws sees. 6 and 7; Genl. Stats. Mass. Mass. (1902), Ch. 136, see. 15. (1860), Ch. 137, sees. 7 and 8; Pub. "See also Pub. Stats. Mass. Stats. Mass. (1882), Ch. 175, see. 5; (1882), Ch. 176, sec. 1, and Eev. Eev. Stat. Mass. (1902), Ch. 181, Laws Mass. (1902), Ch. 181, sec. 1. sec. 3. 18 E. 8. Mass. (1836), Ch. 104, i8 170 Mass. 29. 264 Ch. XIII] CONDITIONAL ESTATES [§259 without regard to the question of the true title or right of pos- session." This vas, however, changed by R. S. (Mass. 1836), ch. 104, which provided that only "the person entitled to posses- sion" might be restored to it. "This language," the court says, "seems to leave without remedy under the statute the case where one not legally entitled to possession is forcibly put out by the true owner, or by one entitled to possession; for in such case the party forcibly put out is not a 'person entitled to the premises, ' and by the terms of the statute such persons only are to be restored." Benjamin R. Curtis and others, commissioners to revise and reform proceedings in courts 6f justice, recog- nized this effect of R. S. ch. 104 and recommended a change back to the rule of the earlier statutes. This was accomplished by an act of 1851 which was, however, repealed after a year, and p. S. ch. 104 again became the law of Massachusetts. It was embodied in Massachusetts Genl. Stat. (1860), ch. 137, and it was from this, in all probability, that our Illinois forcible entry and detainer act of 1872 was modeled.^* The holding in Page V. D'wight was rested by the Massachusetts court upon those very features of the Massachusetts statute which were copied into the Illinois act of 1872, viz., that it is provided in terms that "the person entitled to the premises may recover possession thereof," that if it appears "that the plaintiff is entitled to the ^possession of the premises, he shall have judgment and execution for the possession and for his costs"; that "such person may take * * * a writ," that is to say, "the person entitled to the premises, ' ' as stated in the section preceding ; and that it is ^provided that if the plaintiff becomes non-suited "or fails to prove his right to the possession" the defendant shall have judgment-^"^ IS The writer asked the late Har- you will find I stuck pretty closely vey B. Hurd, the author of the Ee- to them." ' vised Statutes of 1874 about the 2° The ■ Massachusetts court it is source of the Illinois Forcible Entry true was aided in reaching ^ts con- and Detainer Act of 1872 and re- elusion by a feature of the Massa- ceived this in reply: "While I chusetts statutes not embodied in consulted the Mass. Statutes on the Illinois Act of 1872; i.. e., the many subjects I do not think I did provision that if it appeared that in reference to Forcible Entry and title was involved the suit might Detainer. I think by consulting be summarily removed to the Su- statutes of 1845 and amendments, perior Court. But it is observable 265 § 259] FUTURE INTERESTS [Ch. XIII Considering, then, the language of the Illinois forcible entry and detainer act of 1872 as contrasted with that of 1827, and the fact that our act of 1872 was modeled "after the Massa- chusetts act of 1836, which was thought by eminent counsel in 1851 to furnish no remedy to one forcibly put out by him who had the immediate right to possession — an opinion since declared to be entirely correct — a, clear opportunity was given our Supreme Court to hold that, under the Illinois forcible entry and detainer act of 1872, one forcibly put out had no action for restitution against him who had the right to possession. There was a further reason, not present in Massachusetts, for our courts so construing the act of 1872. It had become well established here that the forcible entry and detainer statutes had given the one forcibly put out by him who had the immediate right to possession, an action of trespass.^! As to this result no distinc- tion was to be drawn between the acts of 1827 and 1872.2^ By this holding, therefore, the one forcibly deprived of a wrongful possession was given a remedy — but not the futile one of putting him back into a wrongful possession of which he might at once be deprived by legal proceedings. "Without, however, in the least adverting to these considerations, our Supreme Court con- tinued to hold, under the act of 1872, as it had under the act of 1827, that the immediate right to possession was no 'defence in a suit of forcible entry and detainer where the plaintiff had been forcibly, put out.^* In one case ^* only does the court contrast the language of the act of 1872 with that of 1827. The conclu- sion at which it arrives after so doing is thus stated: "It wiU be observed that the two statutes are substantially alike and hence any decision of the court rendered under the statute of 1845 [same as act of 1827] is applicable under the present statute." *^ that the opinion of the court in ^^^ Id. Page V. Dwight does not at all rest ,23 Allen 1;. Tobias, 77 111. 169 ; upon this provision, but finds the Doty v. Burdick, 83 111. 473; Hub- other clauses already referred to ner v. Feige, 90 111. 208 ; Stillman which were embodied in the Illinois v. Palis, 134 III. 532; Phelps v. Act amply sufficient as a basis for Randolph, 147 111. 335; Knight v. its decision. Cf. "Eight of a Knight, 3 111. App. 206; Pederson Landlord to Eegain Possession by v. Cline, 27 111. App. 249. Force," 4 Am. Law Rev. 429, 447- 2* Phelps v. Randolph, 147 111. 449. 335, 339. 21 Post, § 266. 26 Then the court goes on to cite 266 Ch. XIII] CONDITIONAL ESTATES [§ 260 § 260. Where the entry is peaceable : If, however, the entry by one entitled to possession were peaceable there was not the slightest ground for saying that the person dispossessed could maintain a forcible entry and detainer suit to be restored to possession. He who entered had done no act described in sec. 1 of the act of 1827.26 He had done nothing prohibited by the 1st section of the act of 18^2.^'^ He had done nothing for which any action is given by sec. 2 of the act of 1872. It seem^ clear to the writer, therefore, that the Appellate Court for the 3rd district in City of Bloomington v. Brophy ^^ was entirely sound in holding the right of possession of the city to a strip of land, upon which it had peaceably entered, a complete defence to an action of forcible entry and detainer by the person dispossessed. It would seem to follow from this that the defendant in a forcible entry and detainer suit who has entered in a peacaeable manner, may always show title in himself in order to maintain his right to possession. It is inconceivable that one should be ■told by a court that he had a good defence in the right to pos- session where the hntrj was peaceable, and yet in the next breath be informed that he could not show his right to possession by proving his title. ' The Appellate Court therefore, in City of Bloomington v. Brophy ^9 acted with commendable discrimina- tion when it held that the defendant in the forcible entry and detainer suit who had entered peaceably might prove its title in fee.30 the cases decided under the Act of state, that title is never involved 1827, holding the immediate right in a suit of Forcible Entry and De- to possession no defense in forcible tainer, is unsatisfactory as a prop- entry and detainer by one forcibly ositioii of law. It is an incomplete put out. (Ante, § 258.) statement of actual results. (City ^^Ante, §258. of Bloomington i;. Brophy, 32, 111. ^T Ante, §259. App. 400.) It is unfortunate so 28 32 111. App. 400.. The case of far as it is correct because it doe.s Phelps V. Eandolph, 147 111. 335 is not suggest any legal principle upon not contra, for there, as will be which it may rest. The proper dis- pointed out directly (post, §261), tinction is, it is submitted this: the whole question , really turned When title becomes relevant under, upon whether the entry was in fact the statute it may be involved, peaceable or forcible. When it is irrelevant under the 2932 lU. App. 400. . statute it is not involved. Now in so The general statement often almost all cases the question of title met with in the decisions of this is by the terms of the statute en- 267 § 261] FUTURE INTERESTS [Ch. XIII § 261. What entry is peaceable and what forcible: Since the immediate right to possession is a defence to him who enters peaceably and no defence to one who enters forcibly, the ques- tion becomes important — when is an entry peaceable and when forcible? -' This question was fully dealt with and apparently settled for the time being by our Supreme Ciourt in Fort Dearborn Lodge v. Klein.^^ There force within the meaning of the statute was held to be "actual force as contradistinguished from that force which is implied from an unlawful entry merely," and an end was made of the idea that had grown up around a dictum of Beeder V. Purdy,^^ that the forcible entry forbidden was any entry against the will of the occupant. Thus the law stands unless we can say, upon an examination of the more recent case of Phelps V. Bandolph,^^ that there has been some return to the dictum of Beeder v. PurdyJ Phelps V. Bandolph was a peculiar case. The plaintiff who had been put out by the one having the immediate right to pos- session, sued in forcible entry and detainer to be restored to his wrongful possession. This he might do if the entry of the rightful owner had been forcible.** The plaintiff clearly had the right of it on the facts, for the entry was with actual physical force and violence. On the other hand the defendant would seem to have had the best of it upon the record, because the court below had instructed the jury that "the taking of such property by opening a gate and removing cattle or other stock therefrom, against the will of the one occupying such property, is a forcible entry under the law." This was open to the criticism that it did hot fairly tell the jury that "forcible" meant actual phys- ical force according to the doctrine of the Klein case, but left them to infer that an entry merely against the will of the occu- tirely immaterial. Thus, when the session becomes a good deferise and entry is forcible, evpn by one en- in showing the right to possession titled to possession, the right to pos- the title may become involved, session and consequently title as (City of Bloomin^on v. Brophy, 32 showing the right to possession, is 111. App. 400.) entirely irrelevant under our deci- si 115 111. 177; post, §269. sions. ' (Ante, §§258, 259.) On the S2 41 m. 279; post, §267. other hand when the entry is peace- ss 147 111. 335. able by one who has the immediate ^* Ante, §§258, 259. right to possession, the right to pos- 268 / / Ch. XIII] CONDITIONAL ESTATES , [§ 262 :paiit was forcible. The judgment for the plaintiff was, however, sustained and the court certainly appears to support the idea that any entry against the will of the occupant is forcible. ' AU the authorities cited to sustain such a position are, however, curiously vulnerable. The court quotes from Atkinson v. Les- ter ^5 and Croff v. BalUnger,^^ where the person in peaceable possession had been dispossessed by one haviiig no right to pos- ^session.^^ In such a case the entry, no matter how peaceable, is the foundation of an action of forcible entry and detainer under the very terms of the statute. The court cites Smith v. Hoag ^s where the entry was clearly with actual force. Finally, they refer to that dictum of Reeder v. Purdy,^^ which long pre- -vailed to demoralize the law where the one dispossessed brought trespass, but which was entirely disposed of in F,ort Dearborn Lodge v. Klein.*" Phelps v. Randolph is, it is believed, properly explained as a case where the facts in the record overbore the fault in the instructions; — ^where the court could say that upon thfe undisputed facts the trial court should have peremptorily instructed that the entry was forcible, so that the fault in the instruction did not do the defendant any harm. Viewed in this way the definition of a forcible entry contained in the Klein Case is not in any way modified or interfered with. § 262. How far may the one put out sue in trespass q. c. f., assault and battery, and d. b. a. — Three possible views: To counts in trespass for assault and battery and de bonis aspor- tatis the substance of the defence will be the same : that the defendant had the immediate right to possession of the prem- ises and after requesting the plaintiff to leave he entered and ,put him and his goods out; using no more force than was neces- Sary.*i In the case of trespass quare clausum fregit, the plea is technically one of liberum tenementum, and consists merely in the allegation that the locus in quo was the freehold of the de- fendant,*2 jt teing left to the plaintiff to set up in his repli- es I Seam. (111.) 407. *i For the form of the plea see 36 18 111. 206; 2 Chitty on Pleading (ed. of 1809), 37 Doty V. Burdiek, 83 111. 473, 529 ; also Newton v. Harland, 1 M. 478; Hammond ■!>. Doty, 184 111. 246, & G. 644, 1 Scott N. B. 474; 1 to same efCect. Ames ' Cases on Torts, 136. 38 45 111. 250. " ' ■'2 2 Chitty on Pleading (1st ed. sopojrt, §268. I 1809), 551-554. impost, §269. 269 § 262] ^ FUTURE INTERESTS [Ch. XIII cation any further facts which show a right to possession in him consistent with the defendant's having the freehold.*^ The basis, then, of the plea of liberum tenementum is the immediate right to possession of the defendant.** Concerning the validity of these defences, there are three views : (1) It has been held that these defences are all valid, no mat- ter what sort of an action of trespass is brought, or how much force is used, provided only no more than necessary is employed. This rests upon the assumption that by the common law the de- fence was valid and that no statute had ever taken it away; that the forcible entry and detainer statute only punished forcible entries as crimes — viz., as offences against the public and did not alter the common law as between individuals.*^ (2) On the other hand some cases go to an opposite extreme, holding the defences bad in all cases where the entry is made with actual force.*" These seem at bottom to go upon a judicial conception of what sound policy demands. They are designed to discourage violence and the taking of the enforcement of law into private hands. It is made possible because the common law *3"The plea [of liberum tene- hold in the defendant with a right mentumj has sometimes been ci-iti- to immediate possession as against cised for being anomalous and il- the plaintiff' (Byan v. Clark, 14 Q. logical in this, that the defendant, B. 71). And this we think is the though a freeholder, might never- legal effect of the plea." Mulkey, theless be guilty of a trespass, — as C. J., in Port Dearborn Lodge v. where a landlord wrongfully enters Klein, 115 111. 177, 187. upon his tenant. But in such case *5 Low v. Elwell, 121 Mass. 309; that is proper matter to be set up 1 Ames Cases on Torts, 2nd ed. in a replication, — the very thing 146, — and see cases there cited on which was done in this case. ' ' Mul- page 149, note 9. In Low v. Elwell, key, C. J., in Fort Dearbfarn Lodge the action was trespass for assault V. Klein, 115 111. 177 at p. 187. For and the defense was valid. A for- the form of the replication see 2 tiori, it would have been valid in Chitty on Pleading (1st ed. 1809), trespass guare clausv/m f regit. 648. isDuston v. Cowdry, 23 Vt. 631; **"As a /plea of confession and see cases cited 1 Ames' Cases on avoidance it [a plea of liberum Torts (2nd ed.), p. 152, note 2. In tenementvm] has been construed to Duston v. Cowdry, supra, the de- admit 'such a possession in the fense was denied in an action of plaintiff as would enable him to trespass q. c. f. and d. b. a. A for- maintain the action against a tiori, it would have been denied in wrongdoer, and to assert a free- trespass for assault and battery. 270 Ch. XIII] CONDITIONAL ESTATES [§264 relied upon in the first class of cases supra did not early become crystallized in decisions to the extent of the view there an- nounced. (3) The English courts have reached results consistent with both the above views. The earlier English cases settled it as law that in trespass q. c. f. the plea of liberum tenementum was valid even where the entry was forcible/'^ and such has always continued to be the law in England.*^ It was not, however, until the middle of the 19th century that the question arose as to the validity of the defences mentioned in the case of trespass for assault and battery. In spite of much opposition the newer public policy prevailed and the defence was held insufficient in Newt'on V. Harland.*^ Such has not only remained the law in England, but in the more recent ca,se of Beddall v. Maitland,^° the defence to a count of trespass d. b. a. was denied. § 263. The Illinois cases — First indications : The first tend- ency exhibited in the Illinois cases was to follow the result of the English cases that in trespass, q. c. f. the plea of liberum ten,ementum was a good defenee.^^ § 264. Reeder v. Purdy^^ — ^^g j-gal scope: In this case the plaintiff joined counts in trespass for assault and battery upon his wife, d. 6. a. and q. c. f. The plaintiff and his wife sued also declaring upon two counts in assault upon the wife. In both suits the general issue was filed and by agreement all de- fences might be made under it. The plaintiff had entered under a parol contract for the purchase of the land and the defendant *J 4: Am. Law Eev. 431-437. defendant must be made "in a 18 Beddall v. Maitland (1881), 17 peaceable manner." See post, Ch. Div. 174; 1 Ames' Cases on §§264, 265 et seq. Torts (2nd ed.), 148; Beattie v. At the time of these two cases Mair (1882), l!. B. 10 Irish 208; 1 the Forcible Entry and Detainer Ames' Cases on Torts (2na ed.), statute of 1827 {ante, §258) was 151. in force. <9 1 M. and G. 644; 1 Ames^ Cases 62 41 lU. 279. Note that this case on Torts (2nd ed.), 136. is cited almost indifferently as 50 17 Ch. Div. 174; 1 Ames' Cases Header v. Purdy and as Eeeder v. on Torts, 143. Purdy. The reason seems to be 51 Hoots V. (Jraham, 23 111. 81. In that the former is the title in Den- Dean V. Comstook, 32 111. 'l73, 179, glow's edition of 41 111., and the the Court seems to fully sustain latter is the spelling used in Free- this plea, adding, however, the man's edition of the same report, qualification that the entry by the 271 § 264] FUTURE INTERESTS [Ch. XIII claimed to be the owner with an immediate right to possession. The court instructed ^s that ' ' The fact that the defendant Reeder was the owner, and entitled to the possession of the premises oc- cupied by the plaintiff is.no justification for the assault and bat- tery upon the plaintiff's wife, if any such is proven, and no justi- fication of his attempts to take possession of the premises occu- pied by the plaintiff by force, and no justification for the removal of the plaintiff's property therefrom by force, if any such force is proven ; provided that the plaintiff and his family were in /the quiet possession of the said premises at the time of such assault and force. " There was a verdict and judgment for the plaintiffs, and upon appeal this was affirmed. The propriety of the above quoted instruction was directly called in question, fully consid- ered by the supreme court and approved. It might have been objected that this instruction did not make clear that it was to be applied only in case the entry was made with actual physical force. But this might well have been met by saying that it was not material error because the trial court was warranted from the evidence in assuming that actual force had been used.^* Indeed the supreme court seems to make this assumption as a matter of course. The approval of this instruction then, taken together with the fact that the jury could not have found other- wise than that actual force had been used, establishes this rule 53 These instructions are set out sailanta with hot water, a stick of only in 41 111. 27^, 280 (Denslow's wood and a bayonet beloiiging to Beports). her husband, who had been a sol- s'* The following is a description dier in the army, and, insomuch of the means employed to get that one of the assailants . was Purdy out, given in Denslow 's i-e- obliged to hold her by the wrists, port of the case: "Reader, Baker to enable the other two to get out and Barker, in the absence of the furniture. Finally, after all Purdy from home, got admission the furniture had been got out of into the house, and then proceeded the house, except that in her bed to put Mrs. Purdy and the furni- room, she succeeded in- nailing a ture out of the house by force. board across the door and barring Mrs. Purdy, who is described as a her assailants out. By this time weak little woman, weighing nine- the city marshal and others had ai;- ty-six pounds, fought for her pos- rived, and the attempt to dispossess session with great energy. She her, which had occupied from nine locked one of the doors and gave to twelve o'clock in the morning; the key to her daughter, from whom was abandoned. ' ' it was taken, then went at the as- 272 Gh-XIJI] conditional estates [§ 265 only : in trespass quare clausum f regit, assault and battery, or de bonis asportatis the right of possession is no justification where, the entry was f orcible.^^ J §265. Subsequent cases — Fort Dearborn Lodge v. Klein; ^b The scope of Beeder v. Purdy as above indicated has been re- peatedly ai3&rined and followed. It mattered not whether the Suit Was trespass with the three counts ''^ as in Beeder v. Purdy, or with a count de bonis asportatis joined with one or the other of the two out of the three counts,^ ^ or in trespass quare clausum fregit alone.®* In every instance the result was the same. Any justification based upon the immediate right to possession was out of the question where the entry was with actual force. Thus, Beeder v. Purdy came very properly to stand for the proposir tion that the common law right of a person entitled to possession to forcibly enter upon the land, using as milch force as might be necessary, had been done away, with in this state.^*^ Fort Dearborn Lodge v. Klein and the eases following it ®^ have only made this more clear. In none of them is it suggested that any entry by actual force can be justified. In the Klein case the court especially distinguishes that case from Beeder V: Purdy and Page v. DePuy in the following manner: "In the present case the plea expressly avers that the entry was peaceable, and moreover the proofs show that such was the fact. There was such force in the Page and Beeder cases as to Clearly bring them within the forcible entry and detainer laws, even as construed in Bngla,nd. " ■ The Kleip case and more recently Byan v. Sim Sing^^ have justified so far as the action of trespass quare clausum fregit is •• 35 Observe, in passing, that if the 6. a,); Oomstock v. Brosseau, 65 defendant has himself been wrong- 111. 39 {q. e. f. and d. h. a.). folly dispossessed by the plaintiff, 59 page v. De Puy, 40 111. 506, de- and the defendant has forcibly re- cided at the same term (Apl. 1866) taken possession, the defendant's as Eeeder v. Purdy, and following right to possession seems to be a rather than preceding that case. valid defense: Chapman u. Cawrey, (See 40 111. 509-5l0) ; Illinois & 5*0 III. 512 ; Illinois & St. L. R. R. St. L. E. R. Co. v. Cobb, 68 111. 5.S. Co. V. Cobb, 82 111. 183, 94 111. 55, .' sffDearlove v, Hesrrington, 70 111. ; .5<^ 115 111. 177. 251, 253. sTHaskins d. Haskins, 67 111. 440. si Lee v. Mound Station, 118 Ilh 58 Wilder v. House, 48 111. 279 .304; Ryan «. Sun , Sing, 164 111. (assault and d. 6. a.); Harwell v. 259; Rose tj. Ruyle, 46 111. App. 17. Warren, 51 111. 467 {q. c. f. and d. 62 164 111. 259. Kales Fut. Int.— 18 273 § 266] FUTURE INTERESTS [Ch. XIII concerned,83 the writer's view of the true scope of Beeder v. Purdy. They hold that if the entry is peaceable the immediate right to possession is a complete defence.^* The plea of liberum tenementum is, however, bad on demurrer unless it contain an addition not found in Chitty, — that the defendant entered "not with force, but peaceably. ' ' *^ § 266. The ground of the rule laid down in Reeder v. Purdy : "The statute of forcible entry and detainer [of 1827] " ^^ said Mr. Justice Lawrence in that case "not in terms, but by neces- sary construction forbids a forcible entry, even by the owner, upon the actual possession of another.*'^ Such entry is, there- i^ore, unlawful. If unlawful it is a trespass, and an action for the trespass must necessarily lie." The first section of the forcible entry and detainer statute of 1872,^* however, left nothing to implication, but, in terms provided, "that no person shall make an entry into lands or tenements except in cases where entry is allowed by law, and in such cases he shall not enter with force but in a peaceable manner. ' ' The English statutes against forcible entry and detainer were criminal acts. They punished and prohibited offences against the public. It early became the settled law in England that these statutes, though that of 5 Rich. II, ch. 7, contained a prohibition in the same language as sec. 1 of our act of 1872, did not do away with the defence of liberum tenementum in an action of trespass q. c. f. even when the defendant had entered with such force as the statute made a criminal offense.*' This was sustained on the ground that the creation by statute 6s What the holding will be where Sing, 164 111. 259. In Bose v. Buyle the entry is peaceable but the ae- 46 III. App. 17 (33 dist.) the tion is for assault and battery or Court, by Pleasants, J., follows the de bonis asportatis still remains an Beeder and Klein cases with great open question in our Supreme Court discrimination, laying it down dis- (post, §270). tinctly that a good plea of liberum 8* See also Dean v. Comatoek, 32 tenementum must contain the ad- 111. 173, 179 (semble) ; Brown v. ditional allegation that the entry Smith, 83 III. 291 ' (semble) ; Piper was peaceable. V. Connelly, 108 111. 646; Lee v. «» Ante, §258. Mound Station, 118 111. 304; Bose ^' See also Ambrose v. Boot, 11 V. Buyle, 46 111. App. 17. 111. 497, 500, accord.- 65 Such was the form of the plea es Ante, § 259, in Fort Dearborn Lodge v. Klein, oa Ante, § 262. 115 111. 177; also in Eyan v. Sun 274 Ch. XIII] CONDITIONAL ESTATES [§ 267 of a public offense punished by the state did not alter the rights of individuals toward each other. Now, the Illinois acts, though modeled to some extent upon the English acts, are not criminal statutes. They neither define, prohibit or punish an act against the public as did the English acts. They contain in addition to the civil remedy for restitution, simply a general prohibi- tion and, if that is to be given full effect as a prohibition, it must operate to prevent any justification for entries by the one entitled to possession where such entries are by force. The English cases, having started in to say that the criminal forcible entry and detainer statutes had nothing to do with the rights of individuals toward each other, should have continued so to hold, and to regard the right of entry using no more force than is necessary as a justification, not only in trespass q. c. /. but in assault and battery and d. i. a. as at common law.''" The inconsistency of the English eases is ihat they did not do this, but, in Newton v. Harland''^ held that, in trespass for assault and battery the defence of right to possession was not good. Our Supreme Court, with more consistency, it is believed, has continued down to the present time, to consider the forcible entry and detainer statute of 1827 and 1872 as containing a sweeping prohibition on all forcible entries, even when made by the person having the right to possession. It has constantly held, therefore, that such an entry constituted an unjustifiable trespass q. c. f. and that there was no defence to counts for assault and battery and trespass d. h. a. § 267. Distinction between forcible and peaceable entrj: The actual decisions of our Supreme Court and the grounds upon which they rest clearly make the distinction between a forcible entry and a peaceable entry all important. When, then, is an entry forcible and when peaceable? The answer to this question depends wholly upon the construction to be given the terms "forcible," and "peaceable" in our forcible entry and detainer statutes. It is believed that these were so far modeled after the English acts that our construction of these terms should follow that given to the same words in the English stat- utes.'2 This is certainly the view taken by our Supreme Court '"This is the position which the ",1 M. & 6., 644, 1 Scott N. E. Massachusetts Court has taken. 474; 1 Ames Case on Torts, 136. Ante, § 262. '^2 Post, § 453, note 5. 275 § 268] FUTURE INTERESTS [Ch. XIII in Port Dearborn Lodge v. Klein.''^ "The word forcible, as used in the statute [s] " says Mr. Justice Mulfcey in his ad- mirable opinion in that case, referring to the statute of Rich. 2 and some other English forcible entry and detainer acts, "was held to mean actual. force as contradistinguished from that force which is implied from an unlawful entry merely. By actual force was meant such as breaking open doors, or other like violent acts. So where an entry was effected by means of threats or intimidation, of any kind, such as being attended by an unusual number of persons or by making a display of dan- gerous weapons, it would be deemed a forcible entry within the meaning of these statutes."''* § 268. The vice of Reeder v. Purdy: '^s The vice, if any, of Reeder v. Purdy was the impression which it left that a forcible entry- such as made a right to possession no defence in trespass, meant any entry against the will of the person in possession. This would practically make every entry forcible and deny any justification for the ehtry of one entitled to the possession. - Some color for this view was to be found in Reeder v. Purdy. Mr. Justice Lawrence, in that case, after quoting from Black- stone to the effect that "an eighth offence against the public peace is that of forcible entry and detainer, which is cojnmitted by .violently taking or keeping possession of lands, and tene- ments with menaces, force and arms, and without the authority of law, * * *" goes on to say, "In this state it has been con- stantly held that any entry is forcible, within the meaning of this law, that is made against the will of the occupants " In another portion of his opinion after admitting that one entitled to possession may enter "if he can do so without a forcible dis- turbance of the possession of another," continues, "but the peace and good order of society require that he shall not be permitted to enter against the will of the occupant." "115 111. 177, 185-187; ante, HI. 53; Westcott v. Arbuckle, 12 §261. 111. App. 577. 7* Observe the following cases In the following oases the entry where the entry was forcible undej' was peaceable: Fort Dearborn this. YiewK Beeder v: Purdy, 41 111. L6dge v.. Klein, 115 111. 177; Ryan 279; Wilder v! House, 48 111. 279; v. 'Sun Sing, 164 111. 259; Com- FarweU v, Warren, 51 111. 467 ; Has- stock v. Brosaeau, 65 111. 39; kins V. Haskins, 67 111. 446; lUi- 7541 m. 279; ante, §264, ^ ,; nois & St. L. R. B. Co. 0. Cobb, 68 ■. 276 .Ch^XIII] conditional estates [§ 268 Observe that since the entry in Beeder v. Purdy was indis- putably \y;ith actual force and the instructions were sustained iipon that assumption,'^'' these remarks of Mr. Justice Lawrence were entirely unnecessary to the decision. They might,' then, .well have been passed by as carrying farther than was intended. ■Instead, they were evidently seized upon and exploited for the ^purpose of making all entries illegal, for an entry, however .peaceable, might always be against the will of the occupant. .So long as Beeder v. Purdy was cited as the leading case upon the subject, it was not uncommon to find judges at nisi prius ''"' giving instructions that not even one who had an immediate right to possession could make an entry without legal process against the will of the one in possession. Even the supreme ^courtJ* itself appears to have approached very close to such a .Tule. , : i Mr. Justice Lawrence did not cite any cases for his proposi- tion that an entry by one entitled to possession is forcible within -the meaning of the forcible entry and detainer statute if it be made. " against the will of the occupant." He did, however, ■speak of. its having been constantly so held in this state. The leiaiiied judge, doubtless had in mind two well known previous ^judications '^^ that where one, who has no right to do so, enters upon the one in peaceable possession, the one so entered upon can bring an action of forcible entry and detainer under the stat- ■'SAiite, §.264. 79 Atkinson v. Lester, 1 Scam. , 77 Brooke D. O 'Boyle, 27 111. App. (111.) 407; CrofE v. BalUnger, 18 384; Mueller v. Kuhn, 46 111. App. 111. 200. 496; Fort Dearborn Lodge v. Klein, Many eases decided since Eeeder 115 111. 177 (observe attitude of «. Pjirdy follow the doctrine of these the trial court) . two cases : Smith v.. Hoag, 45 111. J. T.8 Dearlove v. Herrington, 70 111. 250; Doty v. Burdiek, 83 111. 473; |251, 253; Comstock v.. Brosseau, 65 Phelps v. Randolph, 147 111. 335; ,IU. 39; Westeott v. Arbuckle, 12 Hammond v. Doty, 184 111. 246; 111. App. 577j 580. In Dearlove v. Pratt v. Stone, 10 lU. App. 633; Herrington, supra, the Court cited Pederson v. Cline, 27 111. App. 249; •Eeeder v. Purdy, as holding that Parrott v. Hodgson, 46 111. App. "if the owner in fee be wrongfully 230; Coverdale v. Curry, 48 111. App. kept out of possession, he is not 213; Boberts ii. MpEwen, 81 111. permitted to enter against the will App. 413. of the oecupaht, except for the pur- pose of demanding .rent, or to mak^ necessary repairs." 277 § 269] FUTURE INTERESTS [Ch. XIII ute. In these cases it was urged that the plaintiff eould not sue because the entry was not forcible. The obvious reply to this was that by the statute, under which those cases were decided,** an action for possession was given if the defendant made "any entry into any lands, tenements or other possessions, except in cases^where entry is given by law, or shaU make any such entry by force. * * *" If the entry were wrongful it did not have to be with actual force to enable the one dispossessed to bring his action. In Atkinson v. Lester *i this was stated pretty directly. In Croff V. Bollinger ^^ however, the court spoke to the point more at length, using expressions more picturesque than accu- rate. It was said that ' ' If one enters into the possession of an- other against the will of him whose possession is invaded, how- ever quietly he may do so, the entry is forcible in legal con- templation. The word force in our statute, means no more than the term vi et armis does at common law, that is, with either actual or implied force." It is submitted that these remarks properly had reference only to the case where the plaintiff, in the action of forcible entry and detainer, had been put out by one who had no right to the possession. It is believed that the vice of Beeder v. Purdy consisted in suggesting by way of obiter dictum that the same language applied where the plaintiff in trespass had been put out by one having the immediate right to possession. § 269. The virtue of Fort Dearborn Lodge v. Klein: The real virtue of Fort Dearhorn Lodge v. Klein was that it put an end to the idea which apparently began with Reeder v. Purdy that the forcible entry forbidden to one entitled to the posses- sion was any entry which was against the will of the occupant. Mr. Justice Mulkey, in giving the opinion of the court in that case, said: ** "With respect to the prohibitory featiire contained in the first section it is, in legal effect, the same as that contained in 5 R. 2 chap. 8 above cited. A person not having a right to enter is, forbidden to do so. One having such right may enter provided he do so without force, and in a peaceable manner. 80 In both cases it was the si i Seam. (111.) 407. Forcible Entry and Detainer Act of 82 18 111. 200. 1827: E. 8. 1827, p. 228; R. S. 1833, ss 115 m. 177, 191. p. 311; R. 8. 1839, p. 313; R. S. 1845, p. 256. 278 Ch. XIII] CONDITIONAL ESTATES [§ 271 The word 'force' as here used, means actual force, as contra- distinguished from implied force. Any entry requires force, in the literal sense of the term, but that, of course could not have been meant, for it would involve an absurdity. Nor does it mean that force which the law implies where a peaceable entry is made by one having no right to enter, for the act absolutely prohibits a person of that kind from making an entry at all. The conclusion^ therefore, is irresistible that the force which the statute inhibits is actual force." § 270. Some further questions : It would seem that acts which would constitute a prima facie case of irespass to chattels ttiay be perfectly consistent with a peaceable entry. The right to possession ought therefore, in such a case to be a good defence. In the same way acts which would constitute a prima facie case of assault and battery might, if the damages were merely nomi- nal, be perfectly consistent with a peaceable entry. In such case, also, the right to possession should be a valid defence. A more difficult question is the determination of when a peaceable entry becomes complete, so that any further acts to- ward the person and chattels of the former occupant may be justified as the legitimate defence of a lawful possession, rather than acts done in the course of gaining possession in an unlaw- ful manner. In Page v. Be Puy ** Mr. Chief Justice Walker said: the one entitled to possession has "no right to make a forcible entry, or, having lawfully entered, to inflict injury upon the person or property of the occupant." This seems to , point to the rule which the English cases have adopted ^^ that "if an entry be made pe£^ceably, and if, after entry made, and before actual and complete possession has been obtained, violence be used towards the person who is in possession, that is criminal within the statute of Richard II. " § 271. View of the appellate court in the first district — Be- fore the Klein case : *® The first case *'' decided by. the ap- pellate court of the first district involving the validity of the defence of immediate right to possession in an action of tres- pass came up in 1883, two years before the Klein case. It seems, however, to have followed the true rule as announced by the »*40 111. 506, 510. 86 115 111. 177; ante, §§265, 269. ssEdwick V. Hawkes, 18 Ch. Div. STWestoott v. Arbuckle, 12 111. ' 199, 210-212. App. 57*7. 279 § 272] FUTURE INTERESTS [Ch. XIII Supreme Court in the Klein case, — that, in trespass, with feounts for assault aud battery, de bonis asportatis, and quare clausum f regit, where the entry was with actual force, the right of pos- session by the defendant was no defence.** § 272. Since the Klein case *» — ^In trespass q. c. f.^Judge Gary's view: Since the Klein case the appellate court of the first district seems to have gone back to the settled rule of the English cases,^" — ^that in trespass quare elausum fregit, even where the entry of the defendant has been made with actual force, the plea of liberum tenementum is a complete defence.®^ In five 82 of the nine cases ®* containing actual decisions or dicta to this effect the opinion of the court was given by Judge ^Gary. It wiU be convenient to examine these cases together since the repetition of his views on several different occasions upon the same subject will go far toward precluding error as to what he meant. In three ** of the five cases where Judge Gary gave the opinion of the court the form of action seems to have been trespass quare clausum fregit alone.®^ The trial judge seems fairly to have instructed the jury that even though the plaintiff might have wrongfully withheld the possession of land from the defendant, the latter would not' be justified in entering and taking possession with actual foree.'^ In all of these eases ssAnte, §§264-266. 19 (Waterman, J.); Mead v. Ppl- 80 115 111. 177; ante, §§265, 269. lock, 99 111. App. 151 (Waterman, 90 Ante, § 262. J.) ; Mueller v. Kuhn, 46 111. App. 81 The only qualification to this, 496 (Shepard, J.). suggested merely and never acted «* Brooke v. O 'Boyle, 27 111. App. upon, is that there must be no 384; Harding v. Sandy, 43 111. App: breach of the peace accompanying 442; Ostatag v. Taylor, 44 111. App. the entry: Brooke v. O 'Boyle, 27 469. 111. App. 884, 386. ss In Brooke v. O 'Boyle, supra, A breach of the peace obviously the ease came up from a justice includes more than actual force. of the peace, so there were no written 02 Brooke v. O 'Boyle, 27 111. App. pleadings, but from the evidence'tres- 384; Harding v. Sandy, 43 111. App. pass q. c. f. was all that could have 442; Frazier v. Oaruthers, 44 111. been complained of. App. 61 ; Ostatag v. Taylor, 44 111. oe in Brooke v. O 'Boyle, 27 III. App. 469; White v. Naerup, 57 111. App. 384, the Court instructed': App. 114. "Although possession of land may OS The cases, supra, note 92, and be acquired wrongfully by the also Chicago & W. I. B. E. Co v. plaintiff this will not justify even Slee, 33 111. App. 416 (Moran, J.) ; the owner of property in entering Eichengreen v. Appel, 44 111. App. and talcing possession forcibly 280 Ch.XIII] conditional estates [§272 suqh an instruction was held improper. In White v. Naerup ^t the action was trespass quare clausum f regit. The appellate cpjirt held that an instruction should have been given which in Substance declared that if the plaintiff (the tenant) did acts which amounted to a breach of a covenant of the lease "then the .defendant [the landlord] had the right to enter said store and take possession thereof. " It is noticeable here that there is no qualification that the defendant must enter peaceably and without force. In all .the cases above referred to the temper of the court quite manifestly leans to the view that one having a right to possession may enter even with actual force, provided there be no breach of the peace. In Brooke v. 'Boyle ?* Judge Gary says: ' ' The heresy introduced into the law of this state in 1886 ®® based upon Dustan v. Cowdry, 23 Vt. 635, has after much prun- ing been got rid of in Fort Dearborn Lodge v. Klein, 115 111. 177. The owner may take from a wrongful holder his* own if he can do so : without a breach of the peace. ' ' In Harding v. Sandy i the same learned judge said : ' ' The profession is slow to unlearn what in Brooke v. 'Boyle, 27 111. App. 384, we called 'the heresy introduced into the law of the state in 1866.' The case there cited, Fort Dearborn Lodge v. Klein, 115 111. 177, holds that against the will of the person in though he is entitled to possession J)Ossession. " of certain premises, to take the law In- Harding i). Sandy, 43 111. App. into his own hands and employ force 442, the. Court instructed: '.'That and use violence to regain posses- ^: person in the actual peaceable sion even though such possession possession of premises, is presumed is wrongfully withheld. The law to be there rightfully and no one, has provided the action of forcible riot even the dwner of the property, entry and detainer arid the action has a riglrt to go upon the premises of ejectment for this purpose and aad forcibly eject the person so in no one has the right to forcibly eject possession of the premises or any another in the peaceable possession part of them, or remove his prop- of premises witliout legal process." erty therefrom against his will, un- 9? 57 111. App. H4. less the person so entering has some ^8 27 111. App. 384, 386. legal process from a court of com- »« This is obviously a misprint petent, jurisdiction, authorizing him for 1866, the year Eeeder v. Purdy to do so, or consent of the one in was decided. The Court itself makes possession." the correction in Harding v. Sandy, In Ostatag v. Taylor, 44 111. App. 43 111. App. 442. 469, the Court instructed: "The 1 43 111. App. 442. law does not prevent a man, al- 281 § 273] PUTUEE INTERESTS [Ch. XIII the owner may take from a wrongful holder his own if he can do so without a breach of the peace. * * * The contrary doctrine for some time held in this state was first adopted by the swpreme covoct in B&Bder V. Purdy, il 111.279 * * '."^ In Frazier v. Caruthers,^ Judge Gary says: "Whenever there is an abuse of the right of entry by excessive force (and for that purpose all force is excessive) * restoration of the possession may be obtained by an action of forcible entry, but trespass qu. cl. will not lie. * * * The same argument that induced the decision to the contrary in Reeder v. Purdy, 41 111. 279, has more than once been held specious in England. ' ' A little further on he continues: "The true rule is laid down in Hoots v. Graham, 23 111. 81,^ where it is said 'no case has been referred to, and it is believed none exists which holds that a trespasser or a person in possession as a wrong doer can recover against the owner of the fee, with right of possession. Such a rule would be an end to the enjoyment of property and its protection by judicial determination. It would be to hold that the actual possession however acquired, was paramount title.' The ex- perience of the last twenty-five years in this city [Chicago] justifies the statement that also imder it blackmail is lawful gain. ' ' In White v. Naerup ^ he said • ' ' This court has gone back to the common law, as held in Hoots v. Graham, 23 111. 81, that a trespasser or a person in possession as a wrong doer cannot recover against the owner of the fee with right of possession." §273. Sustained by other judges: The four cases, where ,the opinions of the court were given by other judges, seem to back up the clear cut views of Judge Gary.'' In Chicago & W. I. B. B. Co. V. Slee,^ Judge Moran seems to have laid it down as law that in trespass qu. cl. fr. the right to possession alone is a good defence, making no qualification that the entry must be 2 The Court here goes on to say s 44 111. App. 61, 67. that Eeeder v. Purdy was based * This may well be doubted, see upon Duston v. Cowdry, 23 Vt. 631, ante, §§ 267-269. and that the latter was in turn 5 This is repeated in Ostatag v. based upon Newton v. Harland, 1 Taylor, 44 111. App. 469, 470. M. & Gr. 644, 1 Scott, Nj R. 474, e 57 m. App. 114, 118. which ' ' has beien long since over- ' Ante, § 272. ruled in England." This last s 33 m. App. 416, would seem incorrect. See ante, §262. 282 Ch. XIII] CONDITIONAL ESTATES [§275 peaceable. In, Eichengreen v. Appel,^ Judge Waterman said : "Proceeding with reasonable notice, in a reasonable manner and with ;ao unnecessary rigor, as appellant did, appellee has no cause of action because appellant merely took what belonged to him and which appellee held without right. " i" In Mueller v. Kuhn^^ Judge Shepard said: "The principal vice in each of the instructions consists in the assumption of the first and the expression of the- sixth that a landlord may not re-enter and retake possession of his premises withheld by a tenant in pos- session after the determination of a lease, except by process of law. It would put an end to the enjoyment of property to hold that trespass quare clausum f regit could be maintained against the owner, with right of possession, who merely takes possession of what is his own. ' ' § 274. Contrary to the rule of the Supreme Court: If the writer is correct in finding the doctrine of our Supreme Court to be that the right to possession is only a defence in trespass qu. cl. fr. when the entry of the defendant is peaceable as dis- tinguished from an entry with actual force and violence,^^ jt is plain that the appellate court of the first district has tempered justice with mercy for the landlord or landowner. It apparently allows the one entitled to possession to use as much force as may be necessary up to the point of committing a breach of the peace. It would apparently regard the plea of liberum tenementum in the form given by Chitty ^^ as a good defence. To this extent the rule of the appellate court in the first district is materially different from that of our supreme court. § 275. In trespass for assault and battery and de bonis as- portatis: How the appellate court of the first district would hold when the action is for assault and battery or de bonis aspor- tatis instead of qimre clausum fregit is not clear. There seems to be not much doubt but that Judge Gary would hold the defence of right to possession good, — the plaintiff being left to recover if at all, under a replication alleging excessive force or perhaps a breach of the peace. In Ostatag v. Twylor^* the learned judge says : "No trespass is committed in taking posses- » 44 III. App. 19, 20. 11 46 111. App. 496. 10 See also the remarks of the 12 4n*e, §§ 261, 267-269. same learned judge in Mead- v. Pol- is Ante, § 265. lock, 99 111. 151, 154. " 44 111. App. 469, 470. 283 § 276] FUTURE INTERESTS [CH-XIII sion of one 's own ; we add, if an assault is committed in so doing, it may or not, be justifiable. ' ' On the other hand Judge Shepard in Mueller V. KvJm^^ suggests the distinction recognized by the English cases that it is only in trespass qu. cl. fr. that the defence of right to possession is valid even when the entry is forcible. In that case the declaration contained counts in trespass for assault de bonis asportatis, and quare clcmsum f regit. The instructions were general and calculated to give the jury to understand that no entry could be made by one entitled to possession except by process of law. These instructions were held bad only because they led the jury to believe that, for the mere entry into the land, there was no defence and the judgment for the plaintiff was reversed because the jury might have given damages for^ the mere entry upon the land. The natural inference is that the court was by no means prepared to say that in trespass for as- sault and de iomis asportatis the defence of right to possession was valid under any circumstances, much less when the entry was forcible. §276. Defence of leave and license: Our Supreme Court, having adhered to the view that See. 1 of the forcible entry and detainer statutes of 1827 and 1872 prohibited all entry with actual force by him who had the right to possession, so that the one so entering was without defence in trespass qu. cl. fr., d. b. a., or for assault and battery,^* it remains to be inquired how far a plea of leave and license may be a good def ence^ to an entry with actual force." : ^ -• If the forcible entry by one having the immediate right; of possession be prohibited by statute, and if such sts,tutory ...pro- hibition be based upon the injury to the public which arises from such entries, rather than upon the conferring of any benefit to the one wrongfully holding possession, on what ground 15 46 111. App. 496. As we have seen (ante, § 270), ^oAnte, §§264-266. the forcible entry or the peaceable I'' It is not believed that any entry and putting out of the oc- proper distinction can be made be- cupant by force are within the prw- tween a license to enter with as hibition of the Forcible Entry and miieh force as may be necessary Detainer statutes. Compare,- how- and a license to expel and put out ever, Fifty Associates v. Howlahd, the occupant and his goods, using 5 Gush. (Mass.) 214. as much force as may be neces- sary. 284 (SM.2SIII] CONDITIONAL. ESTATES [§276 dair a plea of leave, and license to a forcible entry ,be sup- ported? 1* It was very pertinently suggested by Judge Gary in Frazier.v. Caruthers,^^ that if the forcible entry and detainer statute proliibits the entry then no plea of leave and license was gdod^ because the parties should not by their agreement be al- lowed to permit that to be done which by a statute pro 6owo publico is prohibited. Yet nothing now seems clearer under the authorities in this state' ^o than that such a defence is valid, and that, too, quite regardless of whetherthe plaintiff counts in' tres- pass for assault and battery ,21 de honis asporiatis^^ or quare dausum fregit.^^ ' The logical difficulty with this result is recognized in a curious way in French v. Wilier.^* There the question was whether a power of attorney to confess judgment in a forcible entry and detainer kuit was valid or not. The majority of the court atgiied that only the legislature could authorize such a pro- ceeding, since it would be contrary to the mode of suit prescribed by the forcible entry and detainer statute. To^ this the three minority judges replied that if leave and license was a good defence to the forcible entry prohibited by the forcible entry and detainer statute there was no reason why the parties might not, by their agreement, so far alter the mode of suit prescribed by -the statute as to make lawful the confession of judgment in anaction of . forcible entry and ' detainer. It may well be assumed" that the retort of the majority of the court was that so far as the plea of leave and license was a defence to an of- , 18 Note that, where, as in Massa- by the defendant and could only go ehuBetts, they deny the forcible in mitigation of damages, entry and detainer statutes any 2* Ambrose v. Root, 11 111. 497; effect except to give a civil remedy Page ■;;. De Puy, 40 111. 506; Fabri for restitution {ante, §262) a plea v. Bryan, 80 111. 182; Mueller v. of leave and license is unneces- Kuhn, 46 111. App. 496; Schaeffer |ary. A fortiori, it is suf&cient. v. Silverstein, 46 111. App. 608; and 1944 111. App. 61, 67. See also Wetzel v. Meranger^ 85 111. App. Marks v. Gartside, 16 lU. App. 177, 457, may be cases of the same soyt. 179, where the plea in trespass set 21 Ambrose v. Eoot, 11 111. 497. up leave and license, to the land- 22 Fabri ■!). Bryan, 80 111. 182;' lord, who was defendant, to enter Mueller v. Kuhn, 46 111. App; 496. and repair. The Court suggested 23 page' v. De Puy, 40 111. 506; ■that under the Keeder v. Purdy Fabri v. Bryan, 80 111. 182; Muel- {ante, §§ 264-266) doctrine such a ler v. Kuhn, 46 111. App. 496. plea was no defense to the entry 24 126 III. 611. 285 § 277] FUTUEE INTERESTS [Gh. XIII fense against the public .prohibited by the forcible entry and detainer statute its admission was illogical and anomalous and it should not be made the basis for a further anomaly. Perhaps the best ground for the rule that the plea of leave and license is good in trespass for a forcible entry is to be found in the illogical punishment which our forcible entry and detainer statute furnishes. Logically the entry should be made a crime and prosecuted as such, and the punishment by fine or imprisonment be exacted by the state. The one dispossessed should be restored to possession unless the one entering were entitled to it. This was the theory upon which the English statutes operated. Newton v^ Hwrland ^^ broke the symmetry of these results and it is not inconceivable that the illogical step taken in that case might, in order to correct to some ex- tent the first error, have led to the further iUogical position that a plea of leave and license in trespass for assault and bat- tery or d. h. a. is valid.^^ So long, however, as our forcible entry and detainer statutes punished the offence against the public by permitting the person entered upon to pocket the fine awarded in the shape of actual and punitive damages in an action of tort against the person forcibly entering — a remedy in form purely civil — it was not unnatural that the usual prin- ciples applicable to such suits should prevail. In short, if the forcible entry and detainer statutes, apart from restoring pos- session, did no more than give the one put -out forcibly by him who had the right to possession, a civil remedy, why should not the plea of leave and license be good? § 277. Hew far equity will enforce a forfeiture : "Where no forfeiture has been perfected by entry or ejectment, a proceed- ing in equity cannot itself be used as an act of foj^eiture.^'^ 25 1 M. & G. 644; 1 Scott, N. B. as being in effect a license to com- 474; ante, §262. mit a crime" under the statute of 28 Cf. Kavanagh v. Gudge, 7 M. Bicliard II. & G. 316. There is, however, a 27 Hart v. Lake, 273 111. 60 ; Gol- dictum in Edwick v. Hawkes, 18 conda By. v. Gulf Lines B. B., 265 Ch. Div. 199, 208, to the effect that 111. 194 (semile) ; Mott v. Dan- a leave and license given by a ten- ville Seminary, 129 - 111. 403, 416 ant to his landlord to enter and (iemhle) ; Warner v. Bennett, 31 "upon so entering to use all neces- Conn. 468, 478; Donnelly v. Eastes, sary force in putting out the plain- 94 Wis. 390. tiff and his family ' ' would be ' ' void 286 CH. XIII] CONDITIONAL ESTATES [§278 Where a forfeiture has been perfected the remedy at law for possession is adequate, and a bill in equity praying for a de- cree that the premises might be forfeited by reason of a breach of condition would seem to be improper. ^s If, however, the interest is forfeited and the one having the legal title has such possession, and the acts of him whose interest has been for- feited are such, that equity could grant relief, apart from any question of forfeiture, then the bill may lie. Thus, where the defendant had an easement over the plaintiff's land which was subject to forfeiture for breach of a condition subsequent, our supreme court declared the mere filing of a bill sufficient com- pletion of forfeiture and then allowed the bill on the ground that it was filed to restrain repeated and continuous trespasses upon the complainant's land.^^ Again, since the grantee or lessee, whose interest has been legally forfeited for breach of condi- tion has a right in equity under some circumstances — especially when the forfeiture is for nonpayment of rent or money — ^to redeem from such forfeiture,^" no reason is perceived why, after a legal forfeiture, he may not file a bill to foreclose the right to redeem, just as a mortgagee files a bill to foreclose the mortgagor's equity to redeem or the vendor sues to end the vendee's equity to purchase. It would seem as if the bill ef the appellee in Crandall v. Sorg ^i might have been sustained on this ground since he had declared his forfeiture and was in possession. The appellate court, however, directed the bill to be dismissed, because equity would not enforce a forfeiture. TITLE VI. RELIEF AGAINST FOEFEITUEE. §278. At law — Several methods of relief: The common law tempered the rigors of forfeiture in several ways — ^by de- claring the estate merely voidable and not void when the breach occurred '^ — ^by requiring some further act on the part of the grantor or lessor to complete the forfeiture, as an entry in the 2« Douglas V. Union Mutual Life 29 Lyman v. Suburban R. R. Co., Ins. Co., 127 111. 101, 116 {semble); 190 111. 320. Toledo, St. L. & N. O. R. R. Co. v. so Post, § 282. St. Louis & O. R. R. Co., 208 111. si 99 m. App. 22. 623. ^^Ante, §243. 287 § 279] ' FUTURE INTERESTS [Ch. XIII ease of the forfeiture of a freehold estate,^^ or an election in the case of the forfeiture of a term for years ** — and, in the case of a forfeiture for the nonpayment of rent, a very par- titsular sort of a demand for rent.^^ ; § 279. License : ^° By the rule in Dumpor's ease a con- sent, onee having been obtained to assign contrary to the pro- visions of the covenant against assignment, any further assign- ment might be made without consent, and that, too, whether the first consent was to assign "to any person or persons what- soever," *'' or to a single specified person.^* Prom. the lan- guage of our supreme court in Eew v. Trainor 3* there must be. a doubt whether it would recognize Dum/por's case at all as law.*'* It is even probable that, if it did recognize it, the rule would be confined strictly to the facts of Dumpor's case where the consent was to assign "to any person or persons whatso- ever, ".and not applied to the common case of the consent to an assigiiment to a particular person. At' all events, it is per- fectly clear that" when the lessor consents to an. assignment with an express proviso "that no further assignment of said lease or subletting of the premises, or any part thereof, shaU be made without my written consent first had thereto," no further assignment can be made withoift such written consentj*^ If that be so, why would not a clause inserted in the lease itself to the effect that one consent to an assignment should not waive the required consent for any future assignment, be sufiScient to abrogate the rule in Dumpor's case? § 280. Waiver: *2 Of course there is no question about the validity of any express release of the right to declare or com- plete a forfeiture.** The common law, however, in it^ endeavor 3^ Ante, §244. 14 Ves. 173; 5 Gray's Cases on 34 Ante, § 245. Prop., 2na ed. 20. 35 Ante, § 245. Observe also that so 150 m. 150, 157. the tendency was to construe pro- *o But see Voris v. Eenshaw, 49 visions as covenants rather than 111. 425. conditions: GaJlaher v. Herbert, 4i Kew v. Trainor, 150 111. 150; 117 111. 160. SJpringer v. Chicago Real Estate impost, §280, note 43. Loan Co., 202 111. 17 (semble). 3T Dumpor's Case (1603), 4 Co. *2 See Chicago v. Chicago & W. 119b ; 5 Gray 's Cases on Prop., 2nd I. E. B. Co., 105 111. 73. ed. 16. 43 The common ease of this is 3s Brummell'M. Macpherson (1807), where the landlord gives a licen* 288 Ch. XIII] CONDITIONAL ESTATES [§280 to soften the hardships of forfeiture went farther than this. Both at law and in equity our Supreme Coui't has assumed that (^e holder of a right of entry upon a fee for breach of condi- tion may, by his acts, waive the breack of the condition]** It has been said that '(any act done by a landlord knowing of a cause of forfeiture by his tenant, affirming the existence of the lease, and recognizing the lessee, is a waiver of such for- feiture.]' *5 Thus if the landlord assents to certain acts which, in effect, recognize the existence of the tenancy, that is a waiver though the landlord never actually thought about any waiver at all. The receipt of rent due for a period subsequent to the happening of the breach of condition amounts to a waiver of the cause of forfeiture in the absence of any express reserva- tion of the rigbt to declare a forfeiture in spite of the receipt of rent.*^ In the same way other acts, which recognize the or consent to the tenant to do such acts as would amount to a breach of the terms and conditions of such lease were it not for such consent: Moses V. Loomis, 156 111. 392 (con- sent by parol). ** Sherman v. Town of Jefferson, 274 111. 294; Sanitary Dist. ii. Chi- cago Title & Trust Co., 278 111. 529. « Webster v. Nichols, 104 111. 160, 172. See also Channel v. Merri- field, 106 111. App. 243, where the tenant's right to terminate the lease by 30 days' notice after fail- ure of the lessor to furnish power was waiyed by tenant's remaining in possession after the expiration of the 30 days. In the Supreme Court this was ffiversed (206 111.- 278) on the ground that the lessor had the 30 days in which to begin again to keep his covenant and avoid the forfeiture so that the lessee did not have to move until a reasonable time after the 30 days expired. "Watson V. Fletcher, 49 111. 498; Webster v. Nichols, 104 111. 160, 172; Stromberg v. Western Tel. Cons. Co., 86 111. App, 270. Cradle i). Warner, 140 111. 123, seems to be practically a case of waiver by acceptance of rent. The rent was tendered in the shape of a certificate of deposit* for more than the rent itself, and the land- lord did not settle the question of rent then because the change was not to be had. Meath v'. Watson, 76 111. App. 516, seems curiously reactionary. It is hardly to be supported as -it is reported. There the tenant sub- let in violation of the lease on July 30th. On August 1st "the original tenant paid by check $100 rent for August in advance, as by the terms of the lease, and then informed the agent of appellee of the sublet- ting." The Court said there was no merit in the contention that this receipt of rent amounted to a waiver of the cause of forfeiture. If, as seems to have been the case, the in- formation of the subletting was given at the same time as the giv- ing of the check, this would be Kales Fut. Int. — 19 289 § 280] FUTURE INTERESTS » [Ch. XIII existence of a tenancy, amount to a waiver. A notice to quit for nonpayment of rent is a recognition of the tenancy up to that time and waives a cause of forfeiture arising from sub- letting.*^ So, it was recently intimated,** that the conveyance by the landlord of the reversion subject to the lease was a waiver of any cause of forfeiture which had then accrued. The question has not yet arisen in this state whether, in the interest of preventing forfeitures, it shall be held that the acts of the landlord, which recognize the existence of a tenancy, amount to a waiver of forfeiture by operation of law, so that an express reservation by the landlord that the receipt of rent or other act shall not, in a particular case, amount to a waiver of any existing cause of forfeiture, will be ineffective to prevent the waiver. When this question arises it is likely to be argued from Kew v. Trainor*^ that the rule that (the consent to one assignment by the tpnant waives the requirement of any con- sent for any future assignment^ was a waiver by operation of law, and that if the landlord by express proviso may prevent the operation of this rule of law, why may he not, in the same way, prevent the operation of a rule of law which declares that the acceptance of rent for a period subsequent to the occurrence of the cause of forfeiture is a waiver of such cause? It is con- ceived that this argument, while logically sound, overlooks the fact that the rule of Dumpor's case is barely tolerated, if it is tolerated at all, in this state, and that the desperate inclination to get away from it led to the decision in Kew v. Trainor. On the other hand the general rule that waivers of forfeiture occur by operation of law in certain cases — especially by the receipt of rent — is the direct outcome of a sound public policy which seeks to prevent forfeitures. Our supreme court may, there- fore, well say, when the time comes, that a landlord cannot be permitted to receive rent and at the same time keep available a cause of forfeiture."" wrong. The case may have been 40 150 111. 150; ante, ^279. decided correctly Upon another cause so Davenport ' v. The Queen, 3 of forfeiture which was not waived. App. Cas. 115; 5 Gray's Cases on *i Frazier v. Caiuthers, 44 111. Prop., 2nd ed. 36 ; Croft v. Lumley, App. 61; Dockrill v. Schenk, 37 6 H. L. C. 672. 111. App. 44. "8 McConnell v. Pierce, 210 111. 627. 290 ,Ch. XIII] CONDITIONAL ESTATES [§282 §281. Estoppel: Hawes v. Favor, ^^ was entirely disposed of on the ground that no conditions were broken by the tenant. At ths end of its opinion^ ^however, the court says that even if there had been a breach the landlord had waived his right of forfeiture because he stood by while large sums of money were being expended by the tenant in the improvements and- alterations which formed the basis of the alleged cause of for- feiture. It may well be questioned whether this dictum is sound. Can there be a waiver from mere inaction when there is no legal duty to act ? Are we to infer that the landlord, when he knows that the tenant is spending money in doing certain things which may amount to a cause of forfeiture, must warn the tenant that his acts are amounting to a cause of forfeiture? That would be a serious enough proposition. The dictum of fhe court seems, however, to go even farther. It appears from the opinion oi the court that it must have been very difficult to tell whether the acts of the tenant in rebuilding amounted to a breach of the condition or not. The landlord, it seems, did not, during the time that the changes were being made, file a bill for an injunction because it was very doubtful if the acts of the tenant amounted to a breach of covenant. The inquiries of the landlord as to what was being done, and out of which the court raised the waiver or estoppel to declare a forfeiture, seem to have been made in order to fiild out whether there was a breach of the covenant or not, and apparently he did not make up his mind that there was a cause of forfeiture until the tenant's alterations were completed. The^ position of the court would, then, seem to go, to the length of requiring the landlord, whenever he perceived any act of the tenant, which cost the tenant money, and which might result in a breach of condition, to give notice to the tenant that, if his acts did result in a breach of condition, he, the landlord, would forfeit the lease.^^ § 282. In equity: The principle applied by courts of equity is that where the only damage suffered by the party declaring the forfeiture could be fully compensated for in money, equity would relieve against the forfeiture as a matter of course. Thus the 51 161 111. 440. ' the condition was created is no ex- i 52 Impossibility in the perform- cuse: Sherman v. Town of Jeffer- ance of the condition arising after son, 274 111. 294; post, §§749-750. -/ 291 § 282] FUTURE INTERESTS [Ch. XIII jurisdiction of equity has been* asserted to relieve against for- feiture for nonpayment of rent,'** for nonpayment of taxes and assessments,^ 5 -and for the breach of a condition in not laying out a specific sum in repairs.^® Beyond this it is doubtful how far equity will go. It has been held that equity will not relieve against a forfeiture founded on the breach of a covenant not to assign or sublet,^^ or to insure.^* There seems, however, not to have been much resort in this state to equity by tenants to obtain relief against forfeitures already declared,®* even for nonpayment of rent.** In Palmer V. Ford ^1 the tenant filed a bill for an accounting and relief, after forfeiture for nonpayment of rent had been declared and notice served. The lessee offered to pay whatever should be found to be due and prayed that the lessor be restrained from prosecuting suits for possession against his sub-tenants; that an account be taken and that he be restored to possession of the premises under the lease. The chief question discussed by the supreme court was whether there was any equity in the bill. It would seem as if the, bill might have been sustained as an effort by the tenant to redeem from a forfeiture for nonpayment of rent, provided the time for such redemption had not gone by. But the court distinctly said that if the forfeiture was well de- 5* AbramsD. Watson, 59 Ala. 524; ssRolfe v. Harris, 2 Price, 206; Little Rock Granite Co. v. Shall, Reynolds «. Pitt, 19 Ves. 134; White 59 Ark. 405; Wilson v. Jones & v. Warner, 2 Meriv. 459; Green v. Tapp, 64 Ky. (1 Bush) 173; Lilley Bridges, 4 Sim. 96. Where, how- V. Fifty Associates, 101 Mass. 432; ever, the failure to insure was due Sunday Lake Mining Co. v. Wake- to accident or mistake, and no actual field, 72 Wis. 204; Merrill v. Trim- damage had occurred to the lessor, mer, 2 Pa. Co. Ct. Rep. 49. relief was given in equity: Mactier 55 Giles V. Austin, 62 N. Y. 486. v. Osborne, 146 Mass. 399. 56 Sanders v. Pope, 12 Ves. 282. 59 In Wilmington Star Mining But this was doubted by Lord El- Co. v. Allen, 95 111. 288, no question don in Hill v. Barclay, 16 Ves. 401, of this sort seems to have been and 18 Ves. 56, where it was held raised. But see Ousack v. The that equity would not relieve against Gunning System, 109 111. App. 588. a forfeiture occurring because of 'o In Gradle v. Warner, 140 111. the breach of a condition to keep 123, the Court found a waiver of a premises in repair. .^ cause of forfeiture for non-payment 5T Wafer v. Moeato, 9 Modern, of rent, instead of suggesting that 112; Davies v. Moreton, 2 Ch. Cas. relief might be had from forfeiture 127 ; Lovat v. Lord Ranelagh, 3 Ves. under the circumstances. & B. 24, 31. 61 70 111. 369. 292 Ch. XIII] CONDITIONAL ESTATES [ § 283 clared then the bill ought to have been dismissed. The suit was, however, sustained upon the ground that the forfeiture actually declared had been waived by the lessor and that the plaintiff was entitled to relief because of the accounting prayed for. In Sanitary District v. Chicago Title & Trust Co.,^^ our Su- preme ,Court said: "Equity will sometimes relieve against the consequences of a breach of condition and save from forfeiture an estate which has vested and is in danger of being defeated by a failure td perform a condition subsequent, when the breach was not willful, the injury can be adequately compensated by damages and there is a certain rule by which to measure the damages." In Springfield and Northwestern Traction Co. v. Warrich,^^ the court held that equity would relieve from forfeiture a rail- way which did not comply with a condition that it finish its line in two years, when it in fact finished the line four months after that time. The complainants, however, were required to offer and to do equity by the payment of damages which the breach caused, and the defendant was entitled to such damages without the necessity of filing a cross bill. TITLE VII. BIGHT OF ENTRY EOE CONDITION BROKEN DISTINGUISHED FROM A POSSIBILITY OF REVERTER— RIGHTS OF THE DEDI- CATOR AND ABUTTING OWNER ON A STATUTORY DEDICA- TION. § 283, Distinction betvreen a right of entry for condition broken and a possibility of reverter: "The distinction," ac- cording to Professor Gray in his Rule against Perpetuities,®* is this ; "after the statute [of quia emptor es] , a feoffor, by the feoff- ment, substituted the feoffee for himself as his lord's tenant. By entry for breach of condition, he avoided the substitution, and placed himself in the same position to the lord which he had for- merly occupied. The right to enter was not a reversionary right coming into effect on the termination of an estate, but was the right to substitute the estate of the grantor for the estate of the grantee.' A possibility of reverter, on the other hand, did not work the substitution of one estate for another, but was essen- 6=278 111. 529, 543. o* § 245. 63 249 111. 470. 293 § 284] FUTURE INTERESTS [Ch. XIII tially a reversionary interest,^ ^ — a returning of the land to the lord of whom it was held, because the tenant's estate had de- termined. ' ' § 284. The intere&t of the dedicator upon a statutory dedica- tion — What sort is it — On principle: Upon a statutory dedica- tion the fee simple estate in the land dedicated passes to the municipality.^" It is admitted on all jhands, however, that should the dedication be vacated there is some right in the orig- inal dedicator to recover back the lands dedicated.*'' Is this right a possibility of reverter or a right to enter for breach of a condition subsequent? In the ordinary case there is no explicitly expressed intention of the dedicator 8* upon which to found a solution of this question. Nor do the terms of the statute throw any light upon the matter. If, therefore, th^ right arises by an expressed intent of the dedicator such intent must be expressed by implication from the act of dedication. If it arises by operation of the statute in regard to dedication it must be upon the construction of that statute as a whole — ^not because of any particular words in it. Whichever way you take it a court would seem to be pretty free to choose what sort of interest the dedicator shall be 65 The question, therefore, of the Webster, 85 111. 116, 118 (semble) ; validity of such interests in IIU- Village of Hyde Park «. Borden, 94 nois is considered in connection with 111. 26, 34; Matthiesson &. H. Zinc reversions, post, §§ 300-302. Co. v. City of LaSalle, 117 111. 411, «« Canal Trustees v. Hayens, 11 418 (gemtle). HI. 554; Hunter v. Middleton, 18 es in Helm d. Webster, 85 111. 116, 111. 50; St. John ii. Quitzow, 72 111. the intent of the dedicator was 334, 336; Gebhardt v. Reeves, 75 fully expressed in ithe following 111. 301, 304 (citing other cases); language: "It is hereby provided Matthiesson & H. Zinc Co. v. La- and understood that, when said Salle, 117 111. 411, 414-417, 16 111. premises shall, after being opened App. 69, (citing other Illinois as a street, cease to he. used as cases). such or whenever such street as may Of course until the vacation does be opened on said premises shall occur there is no right of posses- be abandoned or vacated by said sion in the dedicator or in any one city, the same shall revert to the else : Matthiesson & H. Zinc Co. v. present owners thereof, their ■ heirs LaSalle, 117 111. 411, 418. ' or assigns, the same as though this 0' Hunter v. Middleton; 13 111. 50, deed had never been made." This 54 (semble) ; St. John v. Quitzow, looks like a condition subsequent 72 111. 334, 336 ; Gebhardt v. upon the breach of which the dediea- Eeeves, 75 111. 301, 306;, Helm v. tor would have, a right of entry. - 294 Ch. XIII] CONDITIONAL ESTATES [§285 held to possess. Possibilities of reverter, however, as will here- after be indicated,*^ are of very doubtful validity since the statute of quia emptores. On the other hand there is no doubt that a right of entry for condition broken may be attached to a fee simpleJP It would seem, therefore, more in accordance with the general symmetry of the law to regard the dedicator's in- terest as a right of entry for the breach of a condition subsequent. § 285. On authority; No case in our Supreme Court has actually involved the question of the nature of the dedicator's interest. The expressions concerning it, so far as they go, haye been conflicting,''^ and it may well be doubted whether our court was, in any case, really undertaking to pass upon the point. Nor can the nature of the dedicator's interest be determined by inquiring whether, in ease of vacation, an entry was made by him before bringing ejectment, since ejectment may be main- tained without entry .'^2 It is believed, however, that the nature of th€ dedicator's interest must be involved where the question arises as to the alienability of his interest after the dedication has been vacated and before any entry or the equivalent of entry by him or l\is heirs. ,In such a state of facts, if the right of the dedicator were a possibilitj'^ of reverter, then the fee wotild haVe expired by the terms of its original limitation and the dedicator, if, he be living, or his heirs if he be dead, could convey without entry.''* If, on the other hand, the right of the dedicator was to enter for condition broken, neither he nor his heirs could convey until the forfeiture had been perfected by entry or some equivalent act.^* It is worth observing , somewhat in detail that the point was raised in just this way in Buck v. Bock IslandJ^ There it <"> Post, |§ 30,0-302. original dedicator] does not have a 70 Ante, § 216. reversion, but a possibility of re- 'iln St. John v. Quitzow, 72,111. verter only." In this latter case, 334, 336, the Court says : ' ' The new however, the court was contrasting streets were dedicated upon condi- a reversion with a possibility of tion the fee in the streets and al- reverter and not a possibility of re- leys vacated should vest in appel- verter with a right of entry for the lant [the original dedicator]." On breach of a condition suosequeiit. the other hand in Matthiesson & H. ^2 Ante, § 244. Zinc Co. V. City of LaSalle, 117 111. ''3 Post, §§ 300-302. 411, 418, Seholfleld, J. saps: "The n Ante, §244. adjacent lot owner [referring to the 's 97 U. S. 693. 295 § 286] FUTURE interests' [Ch. XIII seems to have been assumed that the fee vested in the town by dedication for schools and churches. Subsequently to the con- veyance by the town for other purposes the heirs of the original dedicator, without having entered or done any act sufficient to perfect a forfeiture for the breach of a condition subsequent (if any), conveyed to the plaintiffs who brought ejectment. A judgment for the defendants was affirmed. The court, speaking by Mr. Justice Swayne, pointed out that the heirs at law had conveyed before doing any act to forfeit the estate for breach of a condition subsequent and that this was quite conclusive against the plaintiff's recovery. The following language was used: "It was not denied by the plaintiff' that the title had passed, and that the estate had vested by the dedication. If the conditions subsequent were broken,''® that did not ipso facto produce a reverter of the title. The estate continued in full force until the proper step was taken to consummate the for: f eiture. This could be done only by the grantor during his life- time, and after his death by those in privity of blood with him. In the meantime, only a right of action subsisted, and that could not be conveyed so as to vest the right to sue in a' stranger. Conceding the facts to have been as claimed by the plaintiff in error [the plaintiff in the ejectment] , this was fatal to his right to recover, and the jury should have been so instructed." § 286. How does it arise? Does it arise by act of the parties or by statute, or merely by operation of law apart from the statute? It is believed that it must arise by virtue of the statute on dedication. If it does not, then if it be a possibility of reverter it arises by operation of law apart from the statute. But it must be very doubtful whether such an interest can prop- erly so arise since quia emptores,'''' and, if it can, it should be objectionable on the ground of remoteness.''* Tf it is a right of entry for condition broken, it may be yalid apart from the question of remoteness,''® especially if created by the statute. In either case, where is the expressed intent of the dedicator 76 There do not appear to have " post, §§ 300-302. been any express condition subse- 's Gray 's Eule against Perpetui- quent. Whatever condition there ties, § 312 ; but see post, § 662. was arose out of the fact of a dedi- 79 But see post, % 662. cation for schools and churches. See p. 695 of the report. 296 Ch. XIII] CONDITIONAL ESTATES [§287 that the fee shall continue only until the dedication is vacated, or that the dedicator shall have a right to re-enter when such vacation occurs? These considerations indicate that the interest of the dedicator arises by force of the dedication statute alone. § 287. Rights of abutting owners upon vacation of a statu- tory dedication — In the absence of statute: It is apparent from the preceding -^sections that, in the absence of statute, the abutting owner has no right upon the vacation of a statutory dedication. The only possible ground upon which the abutting owner might have claimed anything was this: Where land abutting on a highway, the fee of which is in the owner of the abutting property, is conveyed, without expressly excluding the highway, the fee tothe center of the way is held, by the proper construction of the deed to be transferred.*" In the same way, where the dedication passes the fee of the way with a right in the dedicator to retake possession in case of vacation, the deed of the dedicator covering the abutting property ought, unless it in terms exclude all interest in the way, to be construed as ex- pressing an intent to transfer such right to one-half the street. On this reasoning the dedicator's right to retake the fee on vacation of the dedication will vest in the grantee. In St. John V. Quitzow'^^ this view seems to have failed for no other reason than that the dedicator, when she conveyed to the abutting owners, expressly reserved in the deed the right to vacate the streets. The difficulty with such a position is that it might be held, m the absence of statute, that the right of the original dedicator, whether it be a possibility of reverter or a right of entry for condition broken, cannot be transferred by deed.** Perhaps this difficulty was really in the mind of the court in Geihardt v. Reeves.^^ There it was clearly intimated that where upon a "> Post, § 292 ; Hamilton v. Chi- whatever in the land embraced - cago, B. & Q. B. E. Co., 124 111. 235 ; within them, — absolutely nothing, Henderson v. Hatterman, 146 111. within any definition of estate or , 555, 564. , property, that he could sell and 81 72 ni. 334, 336. convey. It had all passed to the ^^Ante, §240; post, §300. corporation by the former grant, 83 75 111. 301, 306-307 : ' ' Until the subject only to the possibility it municipality shall elect to abandon might revert to him, if the con- the use of the streets and alleys, tingency ever happened [that] the the former owner has no interest municipality should ever abandon 297 § 288,] ■ ftJtuee interests [Ch. XIII statutory dedication, the fee had passed, the conveyance of the abutting property could not cari^ ^he right of the dedicator to any part of the land dedicated. It is worth observing, however, that in Helm v. Webster ** one of the very cases in which the abutting owner was defending his possession in a street that had been vacated after a statutory (iedication, the plaintiff was the grantee of the original dedicator in a deed executed before the vacation occurred. In af&rming a judgment for the plaintiff the court must have sustained the transferability by deed of the right of the original dedicator to the plaintiff. Why, then, did not the same right pass by the deed of the plaintiff to the abutting owners who purchased lots from him ? § 288. The acts of 1851,85 1865,86 and 1874: st The act of 1851 was the first legislation in this state in favor of the abutting owner. It seems to have been restricted in its application to vacations by "Cities" only. It provided: "That when the corporate authorities of any city may deem it for the best in- terest of their respective cities, that, any street or part of a street shall be changed, altered or vacated, said authorities shall have the power, "upon the petition of the property holders own- iag property on such street or part of street to change, alter, or vacate the same, and to convey, by quit claim deed, all interest which said city may have, had in the street or part of street so vacated, to the owner or owners of lots and lands next to and adjoining the same, upon the payment by such owner or owners of all assessments which may be made against their lots or lands, for and on account of benefits to the same, arising, from such change, alteration or vacation of any street or part of street as aforesaid. ' ' The act of 1865 seems to have had reference only to cases where the vacation was by "act or acts of this state," and was therefore, in no way inconsistent with the act of 1851. It pro- vided in part as follows : ' ' That when any street, square, lane, the trust. Logically it follows, by 1861, p. 112; 1 A. &'D. R. E. S. the grant of the adjacent lot, the 1044. Repealed July 1, 1874, by R. grantee takes no interest under his S. 1874, p. 1018, § 156. deed in the street or alley, other so Approved Feb. 16th, 1865. Laws than he acquires in common with 1865, p. 130; 1 A. & D. R. E. S. the public." p. 1045. Repealed July 1, 1874, by 84 85 111. 116. R. S. 1874, p. 1033, § 550. 85 Approved Feb. 15, 1851. L. S7 R. s. 1874, chap. 145, p. 1092. 298 Ch. XIII] CONDITIONAL ESTATES [§289 alley, highway or part thereof, shall have been or may hereafter be vacated, under or by virtue of any act or acts of this state, the lot or tract immediately adjoining shall extend to the central line of any such street, square, lane, alley, highway, or part thereof, so vacated, unless otherwise specially provided in the act vacating the same : * * * " The act of 1874 took effect upon the repeal of the two pre- ceding acts. This statute was a consolidation of the, two preced- ing acts in that it was made to apply , to vacations by any municipality or the state. In other respects it followed with some additions, the act of 1865. It provided in part as follows (the italics showing the additions made to the act of 1865): "When any street ["square" omitted], alley, lane or highway, or any part thereof, has been or shall be vacated under or by virtue of any act of this state or hy order of the city council of any city or trustees of any village or town, or by the commis- sioners of highways, county hoard, or other authority authorized to vacate the same, the lot or tract of land immediately adjoining on eitlher side shall exterid to the central line of such street ["square" omitted], alley, lane or highway, or part thereof so vacated, unless otherwise provided in the act, ordinance or order vacating the same, unless in consequence of more of the land for such street, alley, lane or highway having been contributed from the land on one side thereof than the other, such division is inequitable, in which case the street, alley, lane or highway so vacated shall be divided according to the equities of the adjoining owners." • ' §■289. Effect and constitutionality of these acts — The wider and narrower meaning of these acts: Taken in th^ir wider meaning these statutes have reference to dedications by any owner of land. In its narrower meaning the act of 1851 must be interpreted as applying only when upon the vacation of a dedication, an incorporated city becomes invested with a fee .which it could hold as private propei-ty. Practically that nar- rows its operation to the case where the city dedicates its own private property. In such case the statute gives the city the power to convey to the abutting owijers — a privilege, which, so far as the cases go, the mimicipality seems never .to have exer- cised.** In their narrower meaning the acts of 1865 and 1874 "8 Presumably the statute auth- orizes the city to convey to the 299 ' § 290] FUTURE INTERESTS [Ch. XIII would apply, whenever, upon the vacation of the dedication, the fee, or the right thereto, came to the hands either of the state or any, municipal corporation or organization as distinguished from a private person or corporation. § 290. These acts only operative in their narrower meaning, because in their wider meanings they would be unconstitu- tional and unjust: The only two cases upon the point seem to commit our Supreme Court to the narrower meaning of these statutes — not, however, upon the actual language of the acts, which will certainly bear the broader interpretation, but because the statutes, if they have the broader meaning, would be un- constitutional. The first of these cases was Gebhardt v. Reeves.^^ There the dedication ^^ and vacation were both under the act of 1851, and it seems to have been squarely held that the statute was not effective to prevent the original dedicator from maintaining ejectment upon his legal title in fee. Our Supreme Court de- clared shortly that, by the proper interpretation of the statute, "it simply authorizes the city to release whatever interest in the street it could lawfully convey." This is the primary ground for the decision, but observe that, in the mind of the court, the only reason for adopting this narrow construction of the statute was that any interpretation of the act which caused it to apply where the dedication was by an individual would have made it unconstitutional as depriving the original dedicator of his prop- erty without due process of law. The court says, without, it would seem, much elaboration upon so important a point: "The fee plaintiff had in the street and alley could not be divested and transferred to the adjacent lot owners by direct legislative action; nor could authority be given to any agency to do it for private purposes. An intention to take the property of one man and transfer to another, without compensation, ought not to be attributed to the legislature, where a different motive may be abutting owners without the pay- dedication occurred, but the writer ment by them of any consideration; ig informed by James Murray Esq., for, if they gave the city value, no that from the tract books of the statute would seem to have been Chicago Title and Trust Co. it ap- neeessary. pears that the plat was aeknowl- 89 75 111. 301. edged June 13th, 1856 and recorded 90 It does not clearly appear from about the same date, the report of the case when the 300 Ch. XIII] CONDITIONAL ESTATES [§291 assigned for its action. A law that would have that effect, or that would authorize it to be done, would be palpably in violation of the constitution, as well as unjust." "^ Helm V. Webster ** seems to have applied the same doctrine to the act of 1874."* The dedication, in that case, was in 1855, and the vacation occurred by the ordinance of an incorporated city in 1876. At that time the act of 1851, under which the dedica- tion was made? was no longer in force, so that the abutting owner could not claim under it. Whether the act of 1874 could be given a retroactive effect so as to control the vacation when the dedication had been made under the act of 1851, would depend upon whether or not the act of 1874 was, in substance, merely a re-enactment of the act of 1851. The court seems to have indi- cated that it was. They then went on to hold that any other than the narrower meaning of these statutes was impossible because in their wider meaning the acts would be unconstitu- tional. "The fee," the court says, "plaintiff had in the street and alley could not be divested and transferred to the adjacent owners by direct legislative action. An intention to take the property of one, and transfer it to another, without compensa- tion, ought not to be attributed to the legislature, and a law that would have that effect, would be in violation of the constitution, as well as unjust." § 291. Are these acts in their wider meaning unconstitu- tional or unjust? — ^A difficulty about opening this question: i There is a difficulty about opening this question in regard to the statutes which have already been passed. Our Supreme Court has not, as has been observed, held them void as uncon- stitutional, but has merely given them a narrow meaning, be- cause, with the wider one, they would have been void. As they stand, then, these acts have an effect. Our Supreme Court SI Upon this point Justices Shel- act of the state, and the vacation - don and McAllister appear to have here was by ordinajnce of a city, dissented. The act of 1874, however, applied 02 85 111. 116. both where the vacation was by act 93 In the opinion of the court the of the state or by a city ordinance. Act of 1865 is particularly spoken In other respects it was modeled of. Of all three acts, however, that after the Act of 1865. Doubtless, is the one which could .-not possibly therefore, the court, in 'mentioning have been applied since it only op- the Act of 1865, was really referring erated where the vacation was by to the act of 1874. 301 § 292] FUTUEE INTERESTS [Ch. XIII might, therefore, say that, if the legislature re-enacted a new law to operate prospectively and in terms applying to a dedica- tion by anybody, it would reconsider its constitutionality unprejudiced by its former rulings upon the ground that a deci- sion as to the validity of an act of the legislature, made in a merely private controversy, should not preclude the reconsidera- tion of the same question at a future time in a suit by other parties.^* However, as to the statutes already enacted, their effect has been fixed by decisions twenty-five years old and, up to the present time, unimpeached. The reasoning upon which these eases went may be erroneous and may not be followed, but the actual decision has possibly become a rule of property which may have been relied upon and it might unsettle titles now to disturb it. The question, then, of the constitutionality and justice of these acts will be considered as if it referred to new legislation in form like the acts of 1851, 1865 and 1874 and clearly applying to a dedication made by anybody at all. § 292. Such acts are neither unjust to the dedicator nor contrary to public policy: It is to be observed that while the fact that a statute in one construction operates unjustly is no ground for its being held unconstitutional, it is a reason for its being so construed as not to operate harshly. But do these acts in favor of the abutting owner in their wider meaning operate unjustly? Where is the injustice in saying to the dedicator: You need riot dedicate at all. Even if you want to dedicate you need not do so under the statute so that the fee will pass to the municipality; but if you do you must part with all rights tor this land so that when the dedication is vacated the fee will remain in the city with power to convey, or go to the abutting owners direct. This does not deprive the dedicator of any right , that he has. It does not substantially deprive him of all right 9* In Ailardt i;. People, 197 111. cept in so far as it is founded upop 501, 509, the propriety of the de- sound reasoning and authority, and cision in Burdick v. People, 149 111. wiU then be re-aflbmed or over- 600, holding a certain act of the ruled, as shall appear right and legislature valid, was questioned. proper." See also "The Doctrine The court said: "If the constitu- of Stare Decisis as applied to De- tionality of that act should again cisions of Constitutional Questions, ' ' be presented by parties not before by D. H. Chamberlain, 3 Harv. Law the court in the Burdick case, that Eev. 125. decision will not preclude tliem, ex- 302 Ch. XIII] CONDITIONAL ESTATES [§ 292 to dedicate by imposing an oppressive condition. Practically, it does not even discourage dedication, for if the dedicator ever considered the possibility that the fee would come back to him (which is extremely unlikely) he would simply have added some- thing to the price of the lots if it did not do so. Such a statute merely places by act of the legislature a condition upon the dedi- cator's doing that which, in the absence of the general statute on dedication, he could not possibly do. Prom the point of view of the dedicator, what injustice or harshness is there in this 'I Not only are these acts not unjust to the dedicator but, it is submitted, they are dictated by a sound public policy. The legislature has simply attempted to effect the same result which the courts reached in the ease of a common law dedication where the fee did not pass. It has become a universally accepted rule of construction for conveyances that an instrument transferring the title to lands bordering upon a highway, the fee of which to the center is in the transferor, will pass, the fee to the center of the way unless a very clear intention be indicated to leave the strips of land in the highway unconveyed. Our Supreme Court in one case has gone so far as to hold that even where there was no dedication at all the conveyance of lots in a subdivision by number will pass a title to the center of strips of land indicated as intended streets.*' In another case it has held that "although the meas- urement set forth in the deed brings the line only to the side of the highway, the title will still be carried to the center of it, unless such words are used and such meets and bounds are set forth as show a contrary intention. "96 j^ support of this position the two Pennsylvania cases of Paul v. Carver^'' and Cox V. Freedley,^^ are cited. In both, the deeds in direct lan- guage bounded along "the northerly side of the" street. In the latter case the measurements of the lot were also given and if followed, would have fixed the boundary at the side of the way in question. Yet in both cases the deed carried to the 85 Hamilton v. C!hicago B. & Q. E. the streets passed to the grantees E. Co., 124 111. 235; Village of Ver- of the original dedicator, even mont 1). Miller, 161 111. 210. though the conveyance to them was 90 Henderson v. Hatterman, 146 made ' ' reserving streets and alleys, 111. 555, 564. See also Gould v. according to the recorded plat." Howe, 131 111. 490, where upon a 97 26 Pa. 223. common law dedication, the fee to os 33 Pa. 124. 303 § 292] FUTURE INTERESTS [Ch. XIII center of the way. Our Supreme Court may or may not go so far, but it has gone far enough clearly to affirm the general rule of law of construction that the deed will carry to the middle of the way unless there be some clear expression to the contrary. Such a rule of law repts, as the courts have frankly declared, upon a public policy which seeks to prevent profitless litigation and fuj;ure difficulties and inconvenience by avoiding the exist- ence of outstanding titles to small strips of land in numberless and untraceable heirs. "No doubt the rule," said Mr. Justice Scott in Gebhardt v. Beeves,^^ "in its practical operations, sub- serves the public good by preventing the existence of strips of land of no great value formerly a part of the highway, but on the abandonment of which would induce profitless and vexatious litigation*. ' ' ^ The beneficent results, thus carefully worked out by the court^ in the absence of legislation, were rudely broken into when it came to be held that a statutory dedication passed the fee to the municipality, leaving only a right of reverter or of entry on condition broken ^ in the dedicator. Since the dedicator had parted with the fee and since his interest, whatever it might be, was probably not transferable by deed ^ there was no way in which the remnant of title left in the dedicator could pass upon the conveyance of lots abutting on the street. The general as- sembly, therefore, stepped in to correct this by such legislation as has been above set out.* The public policy which actuated it was exactly the same as that which had inspired the courts for a long time previous. The legislature was in fact endeavor- ing to prevent the interruption of the very salutary rule of the court with which its dedication acts had tended to interfere. In this view the holding that such legislation was unconstitutional and unjust becomes almost grotesque. Some have thought that our Supreme Court, by requiring so technical and literal a compliance with the letter of the dedica- tion statute that many dedications, especially many of those made before 1874,^ must fail as statutory dedications, has sub- 08 75 111. 301. 4 Ante, § 288. 1 See also Paul v. Carver, 26- Pa. 6 The Act of 1833 (Lawa, 1833, 223. p. 599; 1 A. & D. E. E. S. p. 1039) -Ante, §§284-286. seems to have governed dedications 3 Ante, §§ 240, 300. between 1833 and 1874, except when 304 Ch. XIII] CONDITIONAL ESTATES [§292 stantially conceded that the result of Gebhardt v. Reeves^ was unfortunate. The effect of finding only a common law dedica,tion certainly is that the fee of the streets remains in the original dedicator and passes by the conveyance of the lots to the abutting owners.'' Thus, the desirable result is attained. It is true, also, that Gebhardt v. Reeves took the view that "substantial compliance with the provisions of the statute" was all that the law re- quires^ — ^the ease actually holding (1) that a plat not made and certified by the county surveyor according to the act of 1833 but by another' surveyor, was valid,* and (2) that the absence of a corner stone did not invalidate it where there were other monuments. It cannot be denied that later cases have consistently held that the same statute must be very literally complied with in order to make a statutory dedication. First, it was held that the acknowledgment of the dedicator by his attorney in fact was not a compliance with the act of 1833,* because that statute read that "every person or persons whose ^ duty it may be to comply with the foregoing requisitions, shall, at or before the time of offering such plat or map for record, acknowledge the same," etc.^" Then Gebhardt v. Reeves was in terms overruled so far as it held that the plat need not be such dedications were by special act win, 128 111. 57, 63, were, therefore, of the legislature. (See post § 298, only justified in saying that the note as to Canal Trustees subdivis holding that one, other than the ions). The act of 1833 was incor- County surveyor, might make the porated into E. S. 1845, ch. 25, div. plat, was unnecessary to the decision. 1, sees. 17 et seq. This was repealed s Gosselin v. City of Chicago, 103 by E. S. 1874, ch. 131, sec. 5, § 8. 111. 623 ; Thomsen v. McCormiek, 136 75 111. 301. 111. 135; Earll v. City of Chicago, 7 Supra, notes 95-98. 136 III. 277 ; Blair v. Carr, 162 111. 8 The Court also said on this 362; City of Alton i;. Fishback, 181 point that it might be presumed, 111. 396; Thompson v. Maloney, 199 after the destruction of all written 111. 276; Eussell v. City of Lincoln, evidence of his official capacity, that 200 111. 511. the plat was made by the County Observe that this was changed by surveyor in fact. There were, there- E. S. 1874, chap. 109, sec. 2; Kurd's fore, two grounds for the decision E. S. (1903) chap. 109, sec. 2. that the plat was made by the proper i" Laws 1833, p. 599, sec. 4, (1 person. Each gi-ound is part of the A. & D. E. E. S. p. 1039) ; E. S. actual decision of the case. (Warn- 1845, ch. 25, div. 1, sec. 20, (A. & baugh. Study of Cases, §26). The D. E. E. S. p. 1041). Eepealed E. court in Village of Auburn v. Good- S. 1S74/ oh. 131, see. 5, § 8. Kales Put. Int.— 20 305 292] FUTURE INTERESTS [Ch. XIII made and certified by the county surveyor. ^^ Still later we have a further line of cases to the effect that under this act of 1833 a plat acknowledged before a clerk of the circuit court or be- fore a notary was insufficient ^^ because the statute required acknowledgement before a justice of the supreme court, a justice of the circuit court or a justice of the peace. ^^ It has also been declared to be the law that there can be no statutory dedica- tion without the acceptance of the municipality. ^* These rules have , operated so often to defeat a statutory dedication in the cases coming up to the Supreme Court, that the point of the construction or validity of the acts which give the fee of the street to the abutting owner upon the vacation of a statutory plat made subsec[uent to such acts, has never once arisen since Gebhardt v. Beeves. Instead, the Supreme Court, again and again, finds that there is only a common law dedication so that the fee of the streets is in the abutting owners.^^ All this may not be sufficient to charge the court with having consciously adopted a technical and literal construction of the 11 Village of Auburn v. Goodwin, 128 111. 57; "Village of Augusta v. ,Tyner, 197 111. 242. Observe, however, that now by the Act of 1874 (R. S. 1874, chap. 109, sec. 1; (Hurd's R. S. (1903) chap. 109, sec. 1) the holding of Gebhardt v. Reeves is law. The plat may be made by any "compe- tent surveyor. ' ' In Lee v. Town of Mound Station, 118 111. 304, 313, it was held that a plat by a surveyor who was not the County surveyor was valid under the Act of 1874. There is a difficulty about the case, however, because the plat there in question was made in 1862. Observe, also, that the other point of Gebhardt v. Rieeves, that the plat was suflicient under the statute even if there was no corner stone, if there were other known and perma- nent monuments, has been made law by statute: R. S. 1874. Chap. 109, sec. 1; Hurd's R. S. (1903) chap. 109, sec. 1. 12 Gould V. Howe, 131 111. 490; Village of Vermont v. Miller, 161 ' 111. 210; Davenport Bridge Ry. Co. V. "Johnson, 188 111. 472; Rock Island & P. Ry. Co. v. Johnson, 204 lU. 488. 13 Laws 1833, p. 599, sec. 4, (1 A. & D. R. E. S. p. 1039) ; R. S. 1845 ch. 25, Div. 1, sec. 20, (1 A. & D. R. E. S. p. 1041) . 1* Hamilton v. Chicago, B. & Q. R. R. Co., 124 111. 235; Village of Vermont v. Miller, 161 HI. 210. 15 Village of Vermont v. Miller.^ 161 111. 210; Gould v. Howe, 131 111. 490; Davenport Bridge Ry. Co. i). Johnson, 188 111. 472, 204 111. 488; Earll V. City of Chicago, 136 111. 277; Thomsen v. McCormick, 136 111. 135; Thompson v. Maloney, 199 lU. 276; Clark «t MeCormiok, 174 111. 164; Hamilton v. Chicago, B. & Q. R. R., 124 111. 235; Henderson V. Hatterman, 146 111. 555. 306 Ch. XIII] CONDITIONAL ESTATES [§293 dedication Act of 1833 in order to avoid, as far as possible, the effect of Gebhardt v. Beeves, but it does make it clear that the object attempted to be accomplished by the acts in favor of the abutting owner are neither unjust to the dedicator nor contrary to public policy. § 293. Their constitutionality: It may well be wondered how a statute which is not unjust to an individual, which is founded on a sound public policy and against which there is no express constitutional prohibition can be invalid as without the power of a legislature in which is vested all legislative power except that expressly denied it. The argument in favor of the power of the legislature may, however, be put a little more formally in this way : The act in favor of the abutting owner constitutes one of the terms upon which statutory dedications may be made. One who voluntarily makes such a dedication, therefore, submits to give up his right to get back the land upon vacation of the dedication, and acquiesces in' its passing, either directly as under the acts of 18G5 i« and 1874 ^^ or indirectly by conveyance by the municipality as under the act of 1851,** to those who may be the abutting owners at the time of the vacation. This argument seems to have been very clearly presented in Gebhardt v. Beeves ^^ and the court flatly refused to recognize its force, saying: "The fee plaintiff had in the street and alley, could not be divested and transferred to the adjacent lot owners by direct legislative action; nor could authority be given to any agency to do i,t for private purposes." The court speaks of this legislation as if it amounted to taking the prop- erty of one man and transferring it to another, without com- pensation. Such language was intelligible in St. John v. Quitzow ^o where the dedication had been made prior to 1851, but in Gebhardt v. Beeves, where the court recognize that the dedication was made 16 Ante, § 288. he, in effect, disclaimed, in favor 17 Ante, § 288. of his grantee, all interest in the 18 Ante, § 288. street, in case it should thereafter ' 19 75 111. 301, 308 : ' ' The proposi- be vacated, and agreed that what- tion relied on," the Court says, "is ever interest the city may have ^ had [that] tiis law, in force when the therein should be convened to the plat was made, in some way made adjoining owners." a contract for plaintiff, by which 20 72 111. 334. 307 § 293] FUTURE INTERESTS [Ch. XIII after the law of 1851 went into force,^^ such, language is unin- telligible.^- If applied in the slightest degree to other legisla- tion it would require some curious results. Why, :^or instance, would it not make a statutory dedication invalid to pass a fee simple to the municipality? At common law the dedication gives the public only an easement over the land. Why, then, does not the statute deprive the dedicator of his property and transfer it to another without compensation? If the legislature may, to a limited extent, take the fee out of the dedicator upon a statutory dedication, why may it not take it out of him to the whole extent and, in that case, of what consequence is it to him what becomes of it? If the legislature has no power to give a certain legal effect to the dedication how has it any power to give a particular legal effect to what, under the statute de donis, would be an estate tail? If it can be said that the statute in favor of the abutting owners deprives the dedicator of his property without due process of law, because it deprives him of what, but for the statute, would return to him, may it not as plausibly be said that the turning of an estate tail into an estate for life in the donee in tail with a remainder in fee to the heirs of the body of the donee, ^^ is equally depriving, without due process of law, the creator of the estate and the first taker, of their property? In the absence of statut^e, the first taker would have an estate tail and the creator of the estate a reversion in fee. If the legislature has ,the power to impose such conditions upon grantors and devisors that when they try to do one thing, their act shall have an' entirely, dif- ferent effect, surely there can be no objection to the legislature saying to an individual: You shall make a statutory dedica- tion only upon the condition that the legal effect of your act shall be to pass the fee to the dedicated strip to the abutting owners upon the vacation of the dedication.^* 21 Ante, § 290, note 90. Act of 1865, afterwards appearing 22 Yet St. John v. Quitzow, 72 as sec. 9 of the Landlord and Ten- Ill. 334, is quoted both in Gebhardt ant Act of 1873, providing for for- V. Beeves, 75 111. 301, and Helm v. feiture upon a 10 day notice to Webster, 85 111. 116, as quite de- quit, made any breach of covenant cisive against the abutting owner. or agreement on the part of the 23 Post, §§402 et seq. lessee a ground of forfeiture, even 24 Our Supreme Court has held though it was not expressly made also {ante, § 237) that sec. 2 of an a ground of forfeiture in the lease. 308 Ch. XIII] CONDITIONAL ESTATES - [§294 An excellent argument can be made in favor of these acts upon the ground that the right of the dedicator exists only by the favor of the legislature.^^ Why, then, may not such legislative favor be at any time withdrawn, leaving the fee to vest absolutely in the municipality upon a statutory dedication, so that even upon their narrower meaning these acts would operate very greatly in favor of the abutting owner ? Or it may be inquired: If the legislature can cause the dedicator, who otherwise would get nothing, to become invested with a right to the fee if the dedication is vacated, why may not the legislature cause the abutting owners, who would otherwise get ■ nothing, to become invested with title upon the same event? In short, if" the legislature can, upon a statutory dedication, pass a fee subject to a condition subsequent in favor of the dedicator who otherwise would obtain nothing, why can it not shift the fee of the municipality to the abutting owners upon the happening of the same condition ? So long as the person to whom the fee is shifted is not arbitrarily selected, who can say that the act is not as constitutional in one case as in the other? Finally, it may well be contended that since the only ob- stacle in the way of the right of the dedicator upon the con- veyance by him of the abutting lots is that a possibility of reverter or a right of entry for condition broken is not trans- ferable by deed,^^ these statutes in favor of the abutting owner may well be construed as permitting this right of the dedicator to pass under the same circumstances and in the same way that the fee of the dedicator passes where the dedication is at common law.^'^ §294. Retroactive efifect of these acts— When their nar- rower meaning is adopted: If a municipality, before 1851 had dedicated, according to the statute, land which it held in its No one ever suggested that this be unconstitutional and void. In fact, was unconstitutional as applied to one wonders what acts will not be leases entered into after the act void under such a holding as that was passed. But if these acts in in Gebhardt v. Beeves, favor of the abutting owner upon 25 Ante, § 286. the vacation of a statutory plat are ^2) are the words to be taken as words of purchase creating alternate limitatio&s to the grantor or his heirs? ^^ The first view seems to be the one adopted in Hoibie v. Ogden ^^ and Ak&rs v. Clark}^ § 306. Whether after the creation by devise of a freehold followed by contingent interests a residuary g'ift results in the creation of a reversion or a remainder : Egerton v. Massey i* held that the i^esiduary devise resulted in the creation of a re- version. The contingent interests after the freehold were, therefore, contingent remainders which were destroyed by the premature termination of the life estate by merger in the re- version. The same view has been adopted by our Supreme Court in two recent cases.'* The difficulties in sustaining such a posi- tion have already been pointed out.'® They were not considered by the court. TITLE II. THE CREATION OF EEMAINDEES. §307. Several points which have been passed upon: '^ The first inquiry concerning the creation of remainders may well be : By what form of conveyance may they be created today in Illi- nois ? Since the law of remainders goes back to the feudal period 7 Hempstead v. Dickson, 20 111. is C. B. N. S. 338 (1857) ; Kales' 193; Kamerer v. Kamerer, 281 111. Cases, on Future Interests, 111. 587 (reversions defeasible by the "Benson v. Tanner, 276 111. 594; vesting of contingent remainder) ; Kamerer v. Kamerer, 281 111. 587. Dinsmoor v. Bowse, 200 111. 555. is Ante, § 95. 8 Post, § 311. 18 In Eiekner v. Kessler, 138 111 9 Post, § 379. 636, where, by one clause of' a will, i» Ante, § 170 et seq. A got a life estate, and by a later 11178 111. 357; ante, §176. clause the same property was de- "184 111. 136; ante, §176. vised to B in fee, B's interest was For another problem of the same a remainder. sort see Pinkney v. Weaver, 216 - 111. 185. Kales Fut. Int. — 21 ggl § 307] FUTURE INTERESTS [Ch. XV of English history, remainders must originally have been created by feoffment or some other purely common law mode of con- veyance. Today, however, our conveyances in this state operate under the Statutes of Uses ^^ and Wills, and under such modern conveyancing acts as those of 1827 ** and 1872.^' These modern forms are as effective as feoffment to create future interests by way of remainder.^" The rule that a fee cannot be limited upon a fee by way of remainder 21 is correct as far as it goes. A remadnder was the future interest after a particular estate of freehold created by acts of the parties which the feudalland law allowed. It was permitted by that law only if it stood ready throughout its continuance to take effect in possession whenever and however the preceding estate determined, or became so prior to the ter- mination of the preceding estate of freehold.^^ j^ shifting future interest cutting short a prior interest was not permitted by the feudal land law.^^ To say, thein, that there cannot be a fee mounted on a fee by way of remainder, is to say that the second fee cannot be a remainder because it does not fall within the feudal definition of a remainder and because the feudal land law did. not permit shifting future interests at all. To say, therefore, that a fee cannot be limited after a fee by way of remainder does not at all mean that you cannot have a fee mounted upon a fee by way of executory devise or shifting use.^* nPost, §456. 650; Smith v. KimbeU, 153 111. 368, 18 Po*t, §§457, 458. 372. See also Seymour «. Bowles, 19 Id. 172 lU. 521 and Green v. Hewitt, 97 20 In the following cases the re- 111. 113. mainder was created by a convey- In a number of cases the court ance to uses raised on transmuta- seems to have stated the same doc- tion of possession: O'Melia v. Mul- trine less accurately by saying that larky, 124 111. 506; Both v. Mich- a fee could not be "mounted upon alis, 125 111. 325; Barclay v. Piatt, a fee by deed." Seigwald v. Sieg- 170 111. 384. wald, 37 111. 430, 438; Glover v. In Freeman v. Freeman, 274 111. Condell, 163 111. 566, 592; Strain v. 228, the mere recital in an ante- Sweeny, 163 111. 603, 605; Kron v. nuptial contract of what was _to be Kron, 195 111. 181 ; Stewart v. Stew- done for the wife's children was art, 186 111. 60. not suflicient to create a remainder. ^^Ante, §§ 28, 77, 85, 97. 21 City of Peoria v. Darst, 101 111. ^a Ante, § 26. 609; McCampbell d. Mason, 151 111. a* Ante, §§ 72, 85; post, §§443 et 500; Palmer v. Cook, 159 111. 300; seq., 467. Summers l). Smith, 127 111. 645, 322 Ch. XV.] REVERSIONS AND REMAINDERS [§ 308 It has often been correctly said that two contingent remainders in fee, one to take effect if the other does not, can be properly limited.25 It does not seem probable that our Supreme Court, in King- man V. Hwrmon,^^ meant so far to overturn the common law definition of remainders,*^ as to hold that a contingent future interest after a term for years should be called a contingent remainder. The future interest in that case must, if contingent, be sustained as a springing executory devise.** The general rule of the common law that the feoffor could limit no estate to himself *® seems to have been so far abrogated in this state by the act of 1827 concerning conveyances, if not also by construing deeds to be bargains and sales under the Statute of Uses,*° that one may now convey a fee simple reserv- ing to himself a life estate.^^ Why, then, may he not limit a life estate by deed to third party with a remainder in fee to himself? TITLE III. REMAINDEBS WHICH AS CREATED ARE CERTAIN TO TAKE EFFECT BECAUSE THEY ARE NQJ LIMITED IN DURATION OR DEFEASIBLE ON ANY EVENT EXPRESSED, AND WHICH STAND BEADY TO TAKE EFFECT IN POSSESSION WHENEVER AND HOWEVER THE PRECEDING PARTICULAR ESTATE OF FREE- HOLD DETERMINES 32 — COMMONLY CALLED VESTED RE- MAINDERS.33 § 308. Examples of such remainders — They are valid, in- destructible and alienable: In Illinois as elsewhere the plainest 25 City of Peoria v. Darst, 101 Moore, 687 ; 1 Gray 's Cases on 111. 609; MeCampbell v. Mason, 151 Prop., 2nd ed. 386. 111. 500; Furnish v. Rogers, 154 so po«t, §456. 111. 569. Cf. Boatman v. Boatman, sipost, §§463-466. 198 111. 414 and Chapin v. Nott, 203 32 Ante, §§ 25, 29. 111. 341; post, §§365, 366. Also 33 in Brown v. Brown, 247 111. 528, Buddell t;. Wren, 208 111. 508 ; post, 532, Mr. Justice Cartwright adopts § 367. Also Butterfleld v. Sawyer, this definition of a vested remainder. 187 111. 598. In Carter v. Carter, 234 111. 507, 511, ' 26 131 111. 171. Mr. Justice Dunn puts very clearly 27 Allen V. McFarland, 150 111. the common law distinction between 455, 464. vested and contingent remainders. 28 Post, §§467 et seq. See also Lachenmyer v. Gehlbach, 29Po«t, §463; Callard v. Callard, 266 111. 11, 19; Smith v. Chester, 323 §308] FUTURE INTERESTS .[CH.XV case of such a remainder is where the limitations are to A for life, remaihder to B and his heirs with no gift over.** In the case of a remainder to a class — as to A for life, remainder to the children of A — the remainder vests as soon as any child is born.25 True, the r'emainder is said to be vested, subject to open and let in other members of the class so that the share of each remainderman may be diveSted in part. To this extent the remainder is not indefeasible, yet the remainder to the class as a whole is not subject to be divested by any express gift over. For that reason the remainder to a class without any further gift over has been classified here with remainders which are vested and indefeasible. The validity and indestructibility of vested and indefeasible remainders are unquestioned.** These attributes have come down to our law from the feudal land law.*'^ Such remainders are transferable by any mode of conveyance by operation of law or by act of the parties appropriate for the passing of title to real estate.** Attornment by the tenant in possession is no longer necessary to the validity of the con- veyance, 39 272 lU. 428, 437; Northern Trust Co. V. Wheaton, 249. 111. 606, 612. 3* Brown v. Brown, 247 111. 528; Drake v. Steele, 242 111. 301; Dead- man V. Yantis, 230 111. 243 ; Marvin V. Ledwith, 111 111. 144; Knight v. Pottgeiser, 176 111. 368; Green v. Hewitt, 97 111. 113; Clark v. Shaw- en, 190 111. 47; Bickner v. Kessler, 138 111. 636; see also Vestal v. Gar- rett, 197 111. 398; NieoU v. Scott, 99 111. 529, 548; Springer v. Savage, 143 111. 301; CMelia v. MuUarky, 124 111. 506, 509; Barclay v. Piatt, 170 111. 384. 35 Carter T. Carter, 234 111. 507; Thomas v. Thomas, 247 111. 543, Observe, however, Meldahl v. Wall- ace, 270 lU. 220 ; also post, f 353. 36 Hull V. Hull, 286 111. 75. ?T Ante, §25. 38 They are subject to sale on ex- ecution and attachment: BaUsback V. Lovejoy, 116 111. 442; Ducker v. Burnham, 146 lU. 9; Brokaw v. Ogle, 170 111. 115; Springer v. Sav- age, 143 111. 301, 304, semble. They may be conveyed by .the usual quit claim deed: Boatman v. Boatman, 198 111. 414. They pass by guardian's deed. If the remainder is to a class sub- ject to open and let in others, the guardian's deed will pass the inter- est of those in esse when the sala occurs: Moore v. Beddel, 259 illl. 36; Hill V. HiU, 264 111. 219 (first opinion of the court holding the re- mainder vested, not published). But it does not pass the interests oi afterborn members of the class: Hill V. Hill, supra (unpublished opinion). 30 Post, § 379. 324 Ch. XV] REVERSIONS AND REMAINDERS [§309 TIJLE IV. EEMIAINDERS LIMITED TO TAKE EFFECT UPON AN EVENT EXPRESSED AS A CONDITION PRCEDENT IN FORM, WHICH MAY HAPPEN BEFORE OR AFTER OR AT THE TIME OF OB AFTER THE TERMINATION (WHENEVER OR IN WHATEVER MANNER) OF THE PRECEDING PARTICULAR ESTATE OF EREE- HOLD— COMMONLY CALLED CONTINGENT REMAINDERS. § 309. Examples of contingent remainders: A remainder to an unborn person is necessarily limited on an event which may happen before or after, or at or after, the termination of the particular estate. It is a contingent remainder,*^ destruc- tible and in the nature of things inalienable. The remainder to the "heirs" of a living person is a contingent remainder and inalienable inter vivos and destroyed by the termination of the life estate before the death of the ancestor whose heirs are to take in remainder.*^' This was in fact the case, decided about 1430, where the contingent remainder was for the first time rfeeognized and given a sort of conditional validity.** A re- mainder to the "heirs of the body" of the life tenant (the rule in Shelley's case not applying) is a contingent remainder, de- structible *3 and inalienable, especially by execution sale,** and ^oMcCampbeU v. Mason, 151 111. 500; Pinkneyv. Weaver, 216 111. 185; Lewin v. Bell, 285 lU. 227; post, §404. *iWmiams, Real Prop., 17th ed. 411, notes (d) and (e) ; Digby, Hist, of the Law of Real Prop., 4th ed. 264-269 (translating case from Year Books antedating 1568) ; Fearne, Contingent Remainders, '9; ChaJUs, Real Prop., 2nd ed. 120; Bcraston's Case, 3 Co. 19a, 20b; Irving V. Newlin, 63 Miss. 192. See also Bayley v. Morris, 4 Ves. 788; Frogmorton v. Wharrey, 2 Wm. Black. Rep. 728; Mudge i). HammiU, 21 R. I. 283; Hanna v. Hawes, 45 la. 437, 440; Thurston v. Thurston, 6 R. I. 296, 300; Jarvis v. Wyatt, 4 Hawks. (N. C.) 227; Lemacks v. Glover, 1 Rich. Eq. (S. C.) i41; Tucker v. Adams, 14 Ga. 548; Shar- man v. Jackson, 30 Ga. 224; Johnson V. Jacobs, 74 Ky. (11 Bush.) 646; Hall V. LaFrance Fire Engine Co., 158 N. Y. 570; McCampbell v. Ma- son, 151 111. 500; Aetna Life Ins. Co. V. Hoppin, 249 111. 406; id., 214 Fed. 928. *2 Ante, i 28. *3 Archer's Case, 1 Co. 66b; Kales' Cases on Future Interests, 98; Bennett v. Morris, 5 Rawle (Pa.) 9; Benson v. Tanner, 276 111. 594. In Moore v. Reddel, 259 111. 36, the court assumed that the rule in Shelley's Case applied. It fol- lowed that the life tenant took an estate tail which the Statute on En- 1 tails turned into a life estate in the first taker and a remainder to his "children" indefeasibly vested in each child upon birth. Post, §§ 405, 406. ** Aetna Life Ins. Co. v. Hoppin, 249 111. 406; id., 214 Fed. 928. § 309] FUTURE INTERESTS [Ch. XV the contingent remainderman may be bound by a decree in chancery by representation.^^ The heirs of the body of a life tenant cannot be ascertained till the life tenant's death because till then he cannot have any heirs. This event may not occii.r until after the termination of the life estate by forfeiture or merger. A remainder limited to the person or persons who would hav£ answered the description of the testator's heirs if the testator had died at the time of the death of the life tenant is the same as a remainder to the heirs at law of a living person. It is a contingent remainder and destructible.*® A remainder limited to an ascertained person upon a collateral contingency such as that the life tenant die without leaving children or i^ue is a contingent remainder *'' and inalienable ** and destruc- tible,*® The life tenant cannot die without issue him surviving until his actual death occurs. This may occur after the termina- tion of the life estate. If a remainder be limited to the children of the life tenant who reach the age of twenty-one, the remainder is contingent^" and destructible .®i Again, the event of the children reaching twenty-one might occur after the termination of the life estate by the death of the life tenant. Perhaps the commonest example of a contingent remainder is where after a life estate an interest is limited to individuals, or to a dass, provided they survive the life tenant. ^^ T^g survivorship seme- ns MeCampbell V. Mason, 151 111. dington v. Kime, 1 Salk. 224; Pure- 500. foy V. Sogers, 2 Saund. 380; Eger- 48 Bond V. Moore, 236 111. 576, ton v. Massey, 3 G B. N. S. 338. semble (remainder here was also »o Quinlan u. Wickman, 233 111. 39. subject to a collateral contingency 6i Fasting v. Allen, 12 Mees. & W. that the life tenant should die with- 279 ; Ithodes v. Whitehead, 2 Dr. & out leaving children). Sm. 532; White v. Summers [1908] *7 Walton V. Follansbee, 131 111. 2 Ch. 256; Pitzel v. Schneider, 216 147; Kamerer v. Kamerer, 281 III. 111. 87. 587. . 52 Doe v. Scudamore, 2 B. & P. 48Golladay v. Knock, 235 111. 412; 289; Abbott v. Jenkins, 10 Serg. & Watson V. Dodd, 68 N. C. 528; R. (Pa.) 296; Belding v. Parsons, id., 72 N. C. 240. Boatman v. 258 111. 422; Barr v. Gardner, 259 Boatman, 198 III. 414 and Chapia 111. 256; Messer v. Baldwin, 262 111. V. Nott, 203 111. 341, are in 48; Smith v. Chester, 272 111. 428; terms overruled by GoUaday v. Blakeley v. Mansfield, 274 111. 133; Knock, supra, so far as they hold Kamerer v. Kamerer, 281 111. 587; the contrary. Post, % 358. Mittel i;. Karl, 133 IlL 65; Temple *9Bond V. Moore, 236 111. 576; v. Scott, 143 111. 290; Phayer v. Plunket V. Holmes, 1 Lev. 11; Lod- Kennedy, 169 111. 360; Madison v. 326 Ch. XV] REVERSIONS AND REMAINDERS [§311 times is of one other than the life tenant.^* Such remainders are inalienable on sale by execution.^* They are also destruc- tible.s^ Wher^ two remainders were limited to the children of the life tenant, one on the contingency that the life tenant sur- vive the husband, and the other on the contingency that she did not survive her husband, both remainders were contingent and neither was alienable by a quit claim deed, even though it con- tained covenants of warranty,"^ Topic 1. EuLE OF Destruotibility op Contingent Remainders. §310. This rule in force in Illinois : Since Bond v. Moore,^'' there have been a number of cases in .which the common law rule of destructibility of ; contingent remainders has been ap- plied.s* § 311. Method of operation of the rule by the premature destruction of the life estate by merger : Where the life estate and the reversion were originally in different persons but both came into the hands of the same party by conveyance, a merger occurred and the life estate was prematurely terminated.*® "Where, however, the life tenant took a life estate under a will and at once upon the death of the testator became invested with the reversion in fee by descent or by virtue of the residuary clause of the will pending the taking effect of the contingent Larmon, 170 111. 65 ; Spengler v. ss Belding v. Parsons, 258 III. Kuhn, 212 111. 186; Robertson v. 422; Barr v. Gardner, 259 111. 256 Guenther, 241 111. 511; Collins v. Messer v. Baldwin, 262 111. 48 Sanitary Dist., 270 lU. 108. Smith v. Chester, 272 111. 428 53 Pripp. 1). Hall, L. R. 5 Eq.,399; Blakeley v. Mansfield, 274 111. 133 Cunliffe v. Brancker, 3 Ch. Div. 393. Benson v. Tanner, 276 111. 594 5* Taylor v. Taylor, 118 la. 407; Kamerer v. Kamerer, 281 111. 587 Young V. Young, 89 Va. 675; Nioh- Friedman v. Friedman, 283 111. 383 ols V. Guthrie, 109 Tenn. 535; Hea- MeCarty v. McCarty, 284 111. 196 derson v. Hill, 77 Tenn. 26; Eound- Spatz v. Paulus, 285 111. 82; Lewin tree v. Eoundtree, 26 S. C. 450, 471. v. Bell, 285 111. 227. See also Klein- 55 Friedman v. Friedman, 283 111. hans v. Kleinhans, 253 HI. 620 and 383 ; MeCarty v. McCarty, 284 111. comments, post, § 347. 196; Spatz v. Paulus, 285 111. 82. 59 See Illinois cases cited supra, 58 Blanchard v. Brooks, 12 Pick. note 58 ; also Craig v, Warner, 5 (Mass.) 47. ' Mackey (D. C.) 460; Archer v. Ja- 57 236 111. 576. cobs, 125 la. 467. 327 ' § 812] FUTURE INTERESTS [Ch. XV remainder, there was no merger of the life estate in the re- version.®" In such cases the merger occurred when the one who was both life tenant and reversioner conveyed to a third party both the life estate and the reversion.^! There can be no merger of the life estate in any contingent' remainder. Hence, a tranfser by a remote contingent remainderman to the life tenant does not destroy the life estate.® ^ So the transfer of a life estate to a contingent remainderman does not destroy the life estate.®^ § 312. By forfeiture of the life estate : There have been a considerable number of cases in the United States where the life estate was terminated prematurely by forfeiture by the tortious feoffment or common recovery of the life tenant.®* No reason is perceived why in Illinois a tortious feoffment may not be made by a life tenant. There is no impediment to makiAg livety of seisin if the life tenant Wants to do so. It has been said that livery of seisin has been abolished,®^ but the fact is it has only been made unnecessary by Section 1 of the Act on Conveyancing,®® which is quite different from its being abolished. § 313. By tlie expiration of the life estate in due course before the happening of the event upon wliich the contingent remainder is to vest: Thus, where the limitations are legal estates to A for life with remainder to B if he surArive G, or are contingent upon his attaining the age of twenty-one, ,if A dies before C or before B has attained twenty-one, as the case eo Plunket v. Holmes, 1 Lev. 11, 40 N. H. 498 and MpCreary v. Cog- semble; Egerton v. Massey, 3 0. B. geshaU, 74 S. C. 42. N. 8. 338; Challis on Eeal Property, 82 Stewart v. Neely, 139 Pa, St. 2nd ed. 126; Fearne on Contingent 309. Remainders, 341 et seq.; 3 Preston °3 Cummings v. Hamilton, 220 111. on Conveyancing, 3rd ed. 51, S88, 480. 491; Bennett v. Morris, 5 Rawle «< Faber v. Police, 10 8. C. (10 (Pa.) 9; Bond v. Moore, 236 111. Rich.) 376; McElwee v. Wheeler, 576; Benson v. Tanner, 276 111. 594. 10 S. C. (10 Bich.) 392; Waddell v. See also Kellett v. Shepard, 139 111. Rattew, 5 Bawle (Pa.) 231; Stump 433. V. Pindlay, 2 Eawle (Pa.) 168; 81 Egerton v. Massey, supra; Lyle v. Richard^, 9 Serg. & R. (Pa.) Bennett v. Morris, supra; Bond v. 322; Eedfern v. Middleton, Eice, L. Moore, supra; Belding v. Parsons, (S. C.) 459; Abbott v. Jenkins, 10 supra; Benson v. Tanner, supra; 3 Serg. & R. 296. Preston on Conveyancing, 3rd ed. 85 Post, § 453. 489. But see Dennett v. Dennett, 88 r. g. 1874, Ch. 30, § 1. 328 Ch. XV] REVERSIONS AND REMAINDERS [§ 316 may be, the contingent remainder would be destroyed.'^ Such a case has not yet arisen in this state but it is to be expected at any time. § 314. The partial destruction of a contingent remainder occurs where the life estate terminates before the contingency happens as to an undivided interest only: Suppose the life estate and an undivided half of the reversion unite in one person. A merger thereupon occurs as to an undivided one- half, and the life estate is destroyed in that' half. ^* The con- tingent remainder is thereupon destroyed in an iindiyided half of the property.^8 § 315. Where the remainder is to a class and has vested in one or more members of the class before the termination of the life estate, the rule of destructibility does not apply to the interests of the other members of the class: Thus, if the. limitations be to A for life, remainder to such children of A as reach twenty-one, and at A's death one child has reached twenty-one and there are others who have not, the latter, it is submitted, may share on reaching twenty-one.''" This point has not been passed upon in- this state as yet, but the case is likely to arise at any time. The argument in support of the interests of those who were not twenty-one when the life tenant died has been set forth, ante, §§ 100-103. It should be observed, however, that the remainder cannot be saved consistently with the rule of destructibility where none of the children have reached twenty-one before the termination of A's life estate.''^^ § 316. The rule of destructibility does not apply where the interests are equitable: This is the explanation of Pinkney V. Weaver.''' There the deed as construed by the court limited a life estate to A with a contingent remainder to her children if they reached twenty-one. There was a reversion ip the grantor which descended to his heirs, who conveyed to A. This would have terininated the life estate by merger and destroyed the 87 4n" and that assets,- — viz., the very land in question or the possibility of getting it, — ^have descended to him; that being, therefore, bound by the covenants of his ancestor, there is raised against the heir an original estoppel. But because the heir is bound on his ancestor's covenants by reason of assets descending, hardly justifies, without more, the further holding that the lands so descending are subject to an equity' with which they were not charged while in the hands of the ancestor. It is one thing to create a personal liability on the heir to the extent of assets descending, and quite another to add to that the creatiqn of a duty, enfprceable specifically by a court of equity, to donvey the very lands so descending.^i In the former case the purchaser from the heir, knowing all the facte, is protected in his title. In the latter case he could be charged to make a conveyance. in the same way that the heir could be. If the fact that the descent of assets raises any new and original estoppel by deed against the heir it must be on analogy to the effect of the ancient "lineal warranty." Suppose that a life tenant in possession, with remainder or reversionary interests in others, conveys in fee with full covenants of warranty, in which the heirs are named, and then dies, leaving as his heirs those entitled in remainder or reversion. The heirs do not take the land from their ancestor. Hence they cannot take it subject to any equities against the ancestor. If they are bound by any estoppel it must be because an original estoppel is raised against them by the fact that they are bound by their ancestor's cove- nants because assets descended to them. By the ancient feudal warranty, which was implied from a conveyance by feoffment, the heir in the case stated was estopped to deny the title of his ancestor's feoffee.^^ This was the application of the doctrine of "lineal warranty. "< It was not until the tinrfe of Queen Anne that "lineal warranties" were substantially abolished in Eng- land, and the heir in the case stated, no longer bound by any estoppel.^^ The ancient implied feudal warranty no longer 9 Eawle, Covenants for Title, 5th 12 Rawle, Covenants for Title, 5th ed. 515. ed. 4. 10 B. S. 1874, Ch. 30, § 9. ^^ Id., 11, 353. 11 Eawle, Covenants for Title, 5th .■..,.. ed. 358. 338 Ch. XV]' REVERSIONS AND REMAINDERS [§323 exists. It disappeared with the passing of conveyances by feoffment. The modem express covenants of warranty which began with the introduction of conveyances under the Statute of Uses have taken its place.^* It might be argued that the effect to be given to these covenants must follow the analogy to the effect of the ancient feudal warranty; that since the •statute of Anne is not in force in this state by re-enactment it is not in force at all, nor is there any other statute which pre- vents the application of the doctrine of "lineal warranty"; that, therefore that doctrine must govern, and the heir be estopped. Such an argument has in it enough logic to be danger ous,i^ but it neglects the force of the passing of time and the change in social conditions. The Supreme Court may or may not hold the statute of Anne actually in force here.^® If it does not^ regard it as in force it may very well hold that the doctrine of "lineal warranty" is peculiarly applicable to the time when "homage and warranty were reciprocal, ' ' ^'^ — ^when the vassal gave up his land to the lord in return for the protection which the lord and the lord's heir were bound to make good, — and therefore en- tirely inapplicable to the conditions of society m England when the colonies were first settled, and much more inapplicable to the conditions existing in the colonies themselves, in fact un- known in the law of Virginia or any other colonies, or of the original states of the Union, g,nd therefore not incorporated itito the law of Illinois. ^^ / § 323. The state of the cases in this State makes the law uncertain: In three cases ^* a householder residing upon premises subject to a homestead, conveyed by warranty deed to a third party, not waiving the homestead exemption, and there- after continued to reside upon the premises up to the time of his death. Upon the death* of the householder the court held that " Id., 16. 18 Pollock V. Speidel, 17 Oh. St. 15 It prevailed in Carson d. New 439; Crisfield v. Storr, 36 Md. 129; Bellevue Cemetery Co., 104 Pa. St. - Euss v. Alpaugh, 118 Mass. 369 ; 4 575. > Kent's Com. 469. Compare, Perrin 18 Buss V. Alpaugh, 118 Mass. v. Lepper, 34 Mieh. 292. 369; Crisfleld v. Storr, 36 Md. 129. "Anderson v. Smith, 159 111. 93; Compare, however, dictum in Fisher Despain v. Wagner, 163 111. 598; V. Deering, 60 111. 114. Stickel v. Crane, 189 111. 211. 1' Eawle, Covenants for Title, 5th ed. 2. 339^ § 323] FUTURE INTERESTS [Ch, XV the one thousand dollar homestead interest passed to his heirs and that the heirs were not bound by any estoppel. This was an appropriate place to apply the doctrine of estoppel by deed following the analogy of lineal warranty, so as to bind the heir, if the court had had any inclination to do so.^o In Golladay v. Enack,^^ the testator devised rpal estate to his wife for her life, with a remainder to such of her children as survived her, and if none, to "Moses and his heirs." The wife died in 1907, without children surviving her. Moses died in 1855, leaving as his heirs William and Mary. William conveyed by warranty deed to Fuller, and died in 1904. The decree found that, Fuller was not entitled to atiy thing under this deed, and this was affirmed. If the heirs of William' were claiming under him (as it seems they must have done, because Moses' contingent interest descended to William, and from William passed to his heirs at his death under the rule-,of North v. Graham), ^^ and if the warranties of William operated to bind th^m by way of estoppel because of assets descending (i. e., the very land war- ranted), the heirs of William must have been bound by the estoppel, and the after-acquired title must have inured to the grantee in the deed by force of the estoppel. Such a view, then, the court may in fact have refused to adopt. It is probable, however, that the court never intended to rule upon the question of estoppel at all.^* In Pitzer v. Morrison,^* there was a life estate to Susan with a remainder in fee to James and an executory devise over if James died before the testator's wife and daughter to the wife and daughter, with a further gift over, if they died and the daughter left ho children, to the heirs of James. Susan, James and his wife, and the testator's wife and daughter conveyed by warranty deed to Morrison, who (fonveyed an undivided half to the complainant, who filed a bill for partition. It was held that Morrison and the plaintiff held the fee, subject only to the gift over to the wife and daughter; that the gift Over to the latter had been eliminated because, though their warranty deed did not pass their executory devise, yet their warranties bound not only the wife and daughter so as to pass any after-acquired title 20Kalea, Homestead Exemption 22 235 111. 178; post, i 381. Laws, §§79-108. 23 Post, §382, note 84. 21 235 lU. 412. 24 272 111. 291, 340 Ch, XV] REVERSIONS AND EEMAINDEES [§323 coming to them, but it also bound the heirs (and presumably the devisees also) of the wife and daughter, so that any title to the executory dtevise passing to the heirs or devisees of the wife and daughter would also inure by way of estoppel to the grantee. Still more recently we have a third case which seems to adopt an intermediate view between denying any effect of estoppel to the warranties and allowing them full effect. In Qavvin v. Garroll^^ the testator's son John had a fee with an executory devise over if he died without issue to the testator's surviving children. All John's brothers and sisters conveyed to him by warranty deed, and he thereupon claimed an indefeasible title in fee simple, and filed a bill to remove the executory devise as a cloud. A decree that he held an indefeasible title in fee was reversed. It seems to have been conceded, at least for the sake of argument, that the estoppel created by the warranty might prevent the brothers and sisters, and their heirs as well, from claiming unde/ the executory devise; but the court then held that this was the limit of the estoppel; that it would simply operate to prevent anyone claiming to take under the executory devise ; that the result of this would be that if John died with- out leaving issue his fee would be divested, the gift over could not take effect, and there would therefore be an intestacy. This, it is submitted, is the least satisfactory solution of the problem. If the heirs and devisees of the warrantors are bound by the estoppel because of assets descending (i. e., an interest in the land which has been warranted and the title to which ultimately vests in the heirs or devisees of the warrantor), then aU the consequences of the estoppel should follow, and an after- acquired title should pass to the grantee by estoppel, even though it passes from the heirs or devisees of the warrantor. If, on the other hand, the heirs or devisees of the warrantor are not to be bound by any estoppel which will pass an after-acquired title, they should not be bound by any estoppel at all, but should be entitled to claim the title which has passed to them. The com- promise position, that the heirs of the warrantor are bound by the warranty so that they cannot claim and yet the first taker's interest may be divested so that there will be an intestacy, would seem to be unnecessary and at the same time to do the maximiim 2S 276 111. 478. 341 § 324] FUTURE INTERESTS [Ch. XV harm to those who were intended to enjoy the property and to benefit those who were least likely in the long run to be marked out for benefit in the events which have happened. It is incon- gruous that the warranty deed should bring no benefit to the warrantee ; should prevent the heirs of the warrantor from mak- ing any claim, and throw the estate on a remote heir at law of the creator of the interests who never supposed that there was a possibility of his securing it. § 324. Alienable by descent: ^6 To the general rule "that a contingent remainder of inheritance is transmissible to the heirs of the person to whom it is limited, if such person chance to die before the contingency happens, ' ' Fearne ^^ adds only the practical exception of the case "where the existence of the devisee, etc., of the contingent interest, at some particular time, may by implication enter and make part of the contingency itself, upon which such interest is intended to take effect." By way of illustration he puts a case where the husband's remainder in fee was contingent upon his surviving his wife, the life tenant, and where he, having died first, the contingency never arose and so his heirs took nothing. There is, therefore, nothing artificial about this exception. The rule and the exception amount only to this : That all contingent remainders descend unless the death of him who is to take upon the happening of the contingency, is such an event as forever makes it impossible for his interest to vest.28 Thus, if the remainder is contingent upon the life tenant 26 For the tracing of the descent an interest, where the person to take of contingent remainders, see post, is certain, are transmissible by de- §§ 380-382. scent. * * * it the person be z' Fearne, Cont. Bern. 364; see not ascertained, they are not then also Gray, Eule against Perpetui- possibilities coupled with an inter- ties, § 118. est, and they cannot be either de- 28 In the 6th ed. of Washburn on vised or descend. at the Common Real Property, vol. 2, §1557, it is Law." (Quoted in Eidgeway v, laid down that "where the. person Underwood, 67 111. 419, 427). It is is ascertained who is to take the submitted that this language is on remainder, if it becomes vested, and its face suggestive of highly arti- he dies, it wiU pass to his 'heirs. ' ' ficial rules concerning tha descent In Kent's Commentaries, I4th ed. of contingent remainders and, so far vol. 4, star page, 261, it is /said that as it means anything different from "all contingent estates of inheri- the simple suggestion of Fearne, it tance, as well as springing executory is obscure and perhaps , erroneous, uses and possibilities, coupled with For instance, suppose the limitations 342 Ch. XV] REVERSIONS AND REMAINDERS [§324 dying without leaving issue surviving, the remainder is trans- missible by descent even while it remains contingent.*^ There is, however, much in the Illinois Reports to lead the unwary to the conclusion that if a remainder is contingent upon some event which may occur after the death of the remainder- man, and the remainder-man dies before the life-tenant and before the contingency happens, the remainder is gone, and the grantor takes by way of reversion. This is the natural inference from a number of cases where the whole question seemed to be the general one of whether the remainder was vested or eon- be to A for life, then to the young- eat son of B in fee (bulf without any contingency that the youngest son survive A). B has two sons, C au^ D.' D, the youngest, dies in the life of A. Does his remainder descend? it is possible that under the lan- guage used by "Washburn and Kent it might not. It is submitted, how- ever, that it should. There is no reason in making a distinction be- tween a remainder in D which is contingent on the life tenant 's dying without issue surviving and one which is contingent upon his re- maining the youngest son of B. D really has in the latter case a re- mainder contingent upon B not hav- ing another son. , Any other result would, it is submitted, be incon- gruous because if D who died be- fore A turned out to. be the young- est son on B 's death- before A, then the remainder would fail entirely because no one else fiould take it and yet it could not descend. A condi- tion of survivorship would in fact have been included, though such a contingency has been by hypothesis, expressly excluded. 29 Golladay v. Knock, 235 111. 412; Drury v. Drury, 271 111. 336, 341 ("It is also true that a contingent remainder is descendible where the contingency is not as to the' persons who will take the ultimate remainder in ease it should ever vest."); Mo- roney v. Haas, 277 111. 467, 472 Ortmayer v. Elcock,^ 225 111. 342 Diekson v. Dickson, 23 S. C. 216 Executors of M 'Donald v. M 'Mullen, 9 S. C. L. E. (2 Mill's Consti. Eep.) 91; Roundtree v. Eoundtree, 26 S. C. 450, 471; Eembert v. Evans, 86 S. C. 445, 450; Clark v. Cox, 115 N. C. 94, 99; Crawford v. Clark, 110 Ga. 729, 739; Hennessey v. Pat- teison, 85 N. Y. 91, 93; Chess's Ap- peal, 87 Pa. 362; Minot v. Tappan, 122 Mass.- 535; Cummings v. Stearns, 161 Mass. 506, 507; Wins- low V. Goodwin, 48 Mass. 363, 375 ; Loring v.. Arnold, 15 E. I. 428; Brown v. Williams, 5 E. I. 309, 311- 316; Hampson v. Brandwood, 1 Maddock, 381, 386, 387; In re Cress- well, Parkin v. Cresswell, 24 Ch. Div. 102 ; Barnes v. Allen, 1 Brown 's it is ready to come into possession whenever and however A's estate determines.*'^ The much discussed remainder to trustees to preserve con- tingent remainders is clearly a vested remainder within the common law definition and not a contingent remainder, though it very seldom took effect in possession at all and was intro- duced with words which in form at least seem like a condition 45 10 & 11 Wm. IIIj ch. 16 (1699), , however, like the statute of Wm. Ill 5 Gray's Cases on Prop., 2nd ed. in not applying to the case where 48, note 1. See Smith v. McCon- the remainder is limited to a third nell, 17 111. 135, 140. * person contingent upon the bu'th As the Stat, of Wm. " III was of a child, — viz., where it is for the worded it did not cover the case benefit of another that the child where the remainder to the unborn in utero should be considered born, child was limited in a will. That For the proper result in such a case was provided for in accordance case see Blasson v. Blasson, 2 DeG. with the rule of the statute by the J. & S. 665 (1864) and In re Bur- decision in Reeve «. Long, 3 Lev. row3, Cleghorn v. Burrows, L. E. -408. (5 Gray's Cases on Prop., 2nd [1895] 2 Ch. 497. ed. 47). See Smith V. MeConnell, "182 111. 171. 17 111. 135, 140. The Illinois Act, "J Gray's Rule against PorpStui- however, applies equally to remain- ties, § 102 ; Madison v. Larmon, 170 ders created by deed or will. It is. 111. 65. 348 ' Cm XV] REVERSIONS AND BEMA^DERS [§ 327 precedent, viz., "after the determination of the precedent estate by forfeiture or otherwise, in the lifetime of the tenant, tothe use of the trustees and their heirs during the life of such tenant, in trust for him and to preserve contingent remainders." Clearly, however, by its very terms, the remainder to trustees stood ready throughout its continuance to take effect in posses- sion whenever and however the preceding estate determined. It was not limited upon an event which could by any possibility happen after the termination of the life estate.** If the limitations are to A for life, remainder to B and his heirs, but if B dies before A, then over to C and his heirs, B, to take indefeasibly, must outlive A. But B's interest is not con- tingent upon his surviving A in any other sense, for if A V estate terminated before his death, B would at once be entitled in pos- session, subject to have his fee in possession divested if he did not survive A. B would, therefore, stand ready at all times during the continuance of his estate to take possession whenever and however A's life estate determined. B's remainder is, therefore, vested in the feudal sense, although in order to take indefeasibly, B must putlive A.*^ B's remaindler is, therefore, alienable ^^and indestructible.^* The cases of this sort are numerous./ So, where the remainder is to the children of B, with a gift over, if any child dies before the life tenant leaving a child or children, to such child or children, they to take the share which their parent would have taken, gives the child or children of B, upon birth, a vested and alienable remainder.^^ The same is true where the remainder is to the children of B, with a gift over if B dies leav- ing no children.53 *8ChaUis, Beal Property, 2nd ed. Pingrey v. Eulon, 246 111. 109; 130 et seq. Northern Trust Co. v. Wheaton, .249 *9 Gray's Rule against Perpetui- 111. 606; Laehenmyer v. Gehlbaeh, ties,'f lt)8; Strickland v. Strickland, 266 111. 11; Bemmers v. Eemmers, 271 111. 614. 280 111. 93; Haward v. Peavey, 128 soBlanchard v. Blanehard, 1 Al len (Mass.) 223; Jeffers v. Lamp- son, 10 Ohio St. 102. 61 Piagrey i). Bulon, 246 111. 109 Lach«nmyer v. Gehlbaeh, 266 111 11. ■ ' 52 Smith V. West, 103 111. 332 Siddona v. Gockrell, 131 lU. 653; lU. 430, 439, {semble) ; In re Eog- ers' Estate, 97 Md. 674; Moores v. Har£, 144 Ind. 573 ; Oallison v. Mor- ris, 123 la. 297. 53 Ducker v- Burnham, 146 111. 9 ; Hinrichsen v. Hinriehsen, 172 111. 462; Fors'ythe v. Lansing's Exr's, 109 Ky. 518. 349 § 328] FUTURE INTERESTS [CH. XV § 328. Propriety of calling remainders of this class "vested": A remainder to B "if he survive" the life tenant is contingent.^* Many lawyers no doubt have been puzzled as to the basis for calling a remainder "to B, but if he does not survive" the life tenant then over to C, vested. The uncertainty that the remainder will take effect as an indefeasible interest is just as great in one case as in the other. In both cases alike the remainder-man B must survive A in order to take an indefeasible interest. True, the condition is precedent in 'form in the first case and subsequent in form in the second, but why should the mere difference in the form of the words used make a difference as to whether or not the remainder^ is alienable inter vivos by quit claim deed or guardian's deed or execution sale? From the purely modern and rationalistic point of view these remarks are pertinent. The answer to them, however, lies in the historical basis of the law of real property and the survival in our law today of certain rules of the feudal land law. / It is often overlooked that the absolute inalienability of conr tingent remainders by any mode of conveyance inter vivos is a survival of the feudal system of land laws. It is a survival of the time when contingent remainders were absolutely void or were void until they, vested, when there was a public policy against the assignment of contingent interests and when even a right of entry by a disseisee could not be transferred by act of the party. As a modern and rationalistic rule the comglete inalienability of contingent remainders is somewhat incongruous. Modern statutes which have made the contingent remainder and other contingent interests alienable indicate that there is today little or no public policy in favor of the absolute inalienability of contingent remainders insisted upon by the feudal land law.^^ The same is even more true of the rule of destruetibUity of con- tingent remainders. All recognize this as a survival of the feudal system. For the purpose of administering these two feudal survivals — the rule of absolute inalienability inter vivos of contingent remainders and the rule of destructibility — ^we have had to cling to the feudal distinction between vested and 5* Ante, § 309. 55 8 and 9 Viet. eh. 106, sec. 6 (18*5). 350 Ch. XV] EEVERSIONS AND EEMAINDEES [§328 contingent remainders, even though ,it does not satisfy modern rationalistic conceptions. The feudal distinction had to do largely with what remainders were destructible by a rule of law defeating intent. That rule clearly applied to a remainder to i? "if he survive" the life tenant. "Survive" meant literally survive the "death" of the life tenant. The life estate therefore might terminate preala- turely by forfeiture or merger, leaving the future interest not yet ready to vest, so that it could no longer take effect as a remainder according to the feudal requirements. It was there- fore destroyed or failed. On the other hand, if the remainder were to"B, but if he did not survive" the life tenant then over to C, the remainder could not be destroyed by any rule of lay defeating intent. If the life estate terminated prematurely by forfeiture or merger B 's. remainder was ready to come into pos- session at once, though it might afterwards be divested if B died before the life tenant. The condition subsequent in form, therefore, made an actual and, from the feudal point of view, a sutetantial difference in the two cases by causing the remainder "throughout its continuance" to stand ready to take effect in possession whenever and however the preceding estate deter- mined. The change in situation thus effected by the fact that the conditionwas expressed as subsequent in form made the rule of destructibility inapplicable. Under these circumstances the feudal law could hardly escape calling the remainder vested. Conceivably the feudal law could have held this vested re- mainder in B inalienable inter vivos on the ground that it was uncertaija ever to take effect indefeasibly till the life tenant's death. But the case where the condition was expressed as subse- quent in form by means of a gift over to C if -B did not survive the life tenant, did not arise in the feudal period before the Statute of Uses and Wills because before those statutes the gift over to C would have been wholly void. It did not begin to come up until the gift over to C had been held valid and indestructible, which was not until after Pells v. Brown ^^ in 1620. The question, therefore, of the alienability of B's remainder where the condition was expressed as subsequent in "Cro. Jac. 590, 2 Eoll. Eep: 196; Kales' Cases on Future Interests, 65. 351 § 329] FUTURE INTERESTS [Ch. XV form came up for settlement so long after the purely feudal period of land law that it is not surprising that, what had been called a vested renjainder because it was indestructible by any rule of law defeating intent, should have been held to be alien- able inter vivos according to the letter of the feudal land law applicable to vested remaiiiders. These then are the reasons for Mr. Gray's very precise state- ment 5'^ which has been repeated by our Supreme Court in sub- stance^® or verbatim ^8 many times: "Whether a remainder is vested or contingent depends upon the language employed. If the conditional element is incorporated into the description of, or into the gift to the remainder-man, then the remainder is contingent; but if, after words giving a vested interest, a clause is added divesting it, the remainder is vested. Thus, on a devise to A for life, remainder to his children, but' if any child dies in the lifetime of A his share to go to those who sur- vive, the share of each child is vested, subject to be divested by its death. But on a devise to A for life, retaainder to such of^ his children as survive him, the remainder is contingent." TITLE VI. PROBLEMS OF CONSTBITCTION WHICH ARISE IN DETERMINING WHETHER PARTICULAR REMAINDERS ARE CONTINGENT, AND SO DESTRUCTIBLE AND INALIENABLE, OR VESTED (WHETHER INDEFEASIBLE OR DEFEASIBLE) AND SO IN- DESTRUCTIBLE BY ANY RULE OF LAW DEFEATING INTENT AND ALIENABLE.eo §329. Introductory: A difficulty of construction frequently arises in determining the proper interpretation of language 57 Gray's Rule against Perpetui- vested or contingent may come up: ties, § 108. 1. Upon a bill by the remainder- s' Ducker v. Burnham, 146 111. 9, man as vendor for specific perform- 23 ; Haward v. Peavey, 128 111. 430, ance of the contract of sale : . Cha- 439; Northern Trust Co. v. Wheaton, pin v. Crow, 147 111. 219; Healy v. 249 111. 606, 612. E9,stlake, 152 111. 424. =9 Brechbeller v. Wilson, 228 111. 2. Upon a bill to set aside a will 502; Lachenmyer v. Cehlbaeh, 266 for uncertainty in its provisions: 111. 11, 19; Smith xi. Chester,, 272 Mather v. Mather, 103 111. 607. ' 111. 428, 437. 3. In ejectment, where the quea- fto Miscellaneous ways in whidk the tion arises as to how the plaintiff's question whether a, remainder is estate shall- be described in the judg- 352 Ch. XV] BEVBESIONS AND REMAINDEES [§330 used where the ultimate question is whether the future interest falls within the feudal definition of a vested or a contingent remainder. This happens most frequently where there is- doubt as to whether a condition precedent in form that the remainder- man must survive the death of the life tenant has been ex- pressed^; or as to whether a condition has been expressed as precedent in form or subsequent in form. Complicated, how- ever, with the difficulty of construction as such is the rule that' the courts will in all cases of doubt lean toward an interpreta- tion which brings the remainder within the definition of a vested remainder.81 This rule has been one of extraordinary vigor for two reasons at least: First, because contingent remainders were destructible by a feudal rule defeating intent which was illogical and incongruous after springing and shifting interests created by way of use or devise became valid and indestructible. Second, because contingent remainders were inalienable by a feudal rule which had its origin in the avoidance of champerty and the fact that the contingent remainder was void till it vested. The following sections are arranged to show the extraordinary lengths to which courts have gone in special cases to reach an interpretation which will bring the remainder within the feudal definition of a vested remainder, and also the limits of such extraordinary processes of interpretation. Then there will be pointed out certain tendencies of our Supreme Court to find, by a species of implication, a condition precedent in form that the remainderman must survive the life tenant so that the re- mainder is brought within the feudal definition of a contingent remainder and becomes destructible and inalienable. § 330. Limitations to A for life, remainder to B "after the death of A": If the language used in limitations of this ment, according to E. S. 1874, ch. the court sometimes declares 45, sec. 30, clause 7; Field v. whether a remainder is vested or Peeples, 180 111. 376. contingent: Thompson v. Adams, 4. If the remainder is vested the 205 111. 552; Orr v. Yates, 209 111. rule against perpetuities does not 222. apply. See post, §§652 et seq.; ei It is a corollary to this rule that Howe i;. Hodge, 152 111. 252; Madi- remainders will be construed to vest son V. Larmon, 170 111. 65; Chap- at the earliest moment: Jones v. man v. Cheney, 191 111. 574. Miller, 283 111. 348, 356. 5. Upon a bill to construe a will Kales rut. Int. — 2S 353 §331] -FUTURE INTERESTS [Ch, XV sort be accepted literally B cannot take till A's death, which would be an event possibljy not occurring till after the termi- nation of A's life estate by forfeiture or merger. The remainder would, therefore, be contingent and destructible and inalienable. . From the beginning courts have always read the words "after the death of A'J and i similar expressions as if "they were "at the termination (whenever and in whatever manner it may occur) of the particular estate of freehold." The remainder is, therefore, vested in the feudal sense. ^^ j^ jg precisely like the remainder where the limitations are to A for life, remainder to B for life.® 3 So where the limitations were to the wife for life "if she do not marry but if she do marry", to H "presently after her decease", the life estate was construed to be in the widow during widowhood only, with the remainder to H when- ever and however the life estate terminated, and the remainder in H was therefore vested.^* § 331. Where the limitations are to A for life and "if B overlive A" then to B for life: Here if the contingency be taken literally B has a contingent Remainder because the event of B's overliving A might not occur till after A's estate had come to an end prematurely by forfeiture or merger.®^ The approved construction, however, has always been that the phrase «2Doe V. Considine, 73 XT., S. 458, of the life tenant's death then" as 475; Minnig D. Batdorff, 5 Pa. 503; a basis for finding a condition Doe V. Pfovoost, 4 Johns. (N. T.) precedent in form that the remain- 61; Byrnes v. Stilwell, 103 N. Y. derman must survive the life ten- 454; Livingston v. Greene, 52 N. Y. ant violate a long settled practice 118; Cheney i;. Teese, 108 111. 473; against attaching any significance O'Melia v. MuUarky, 124 111. 506; to such phrases and greatly un- Dueker v. Burnham, 146 111. 9; Me- settle the interpretation to be given Connell v. Stewart, 169 111. 374; to language used in the creation of Knight V. Pottgieser, 176 111. 368; remainders. Bowler v. Bowler, 176 111. 541; es Ante, §327. Brown v. Brown, 247 111. 528; Lynn 64 Luxf ord v. Cheeke, 3 Lev. 125 V. "Worthington, 266 111. 414, 418; (1683); De Vitto v.' Harvey, 262 People V. Camp, 286 111. 511 ("then 111. 66. and in such case"); Henkins v. os The New Hampshire court so Henkins, 287 III. 62. 'Expressions long as it took the contingency lit- by our Supreme Court in BatSs v. erally was sound in holding the re- Gillett, 132 111. 287 and Kleinhans mainder to be contingent: Hall v. V. Kleinhans, 253 111. 620, relying Nute, 38 N. H. 422; Hayes ih Ta- upon such contexts as "after the bor, 41 N. H. 521. life tenant's death" or "in case , 354 Ch. XV] EBVERSIONS AND REMAINDERS [§332 " if B overlive A ' ' means -"if B survive tlie termination, when- ever and however that may occur of A's life estate." In, this view B 's interest is bound to take effect; if at all whenever and however the preceding estate determines. It is, therefore, a vested remainder.^" Again, by a process of construction, the remainder is the same as where the limitations are to A for life, remainder to B for life.*''^ If, however, the remainder is to B in fee then the expressed condition precedent that.B over- live A must be taken as it stands and B's remainder is con- tingent.^* -^ § 332. Bemainders in default of appointment: The English courts adopted an extremely artificial and strained construc- tion to bring a remainder ''in default of appointment" within the definition qf a vested remainder. The usual formula of words for creating limitations with a remainder in default of appointment is as follows : to A for life, remainder to such chil- dren of A as he shall by deed or will appoint, and in default of appointment, to B and his heirs. If this language be taken as it stands the event upon which B's remainder is to take ef- fect is the failure of A to appoint. If A can appoint after he ceases to be a life tenant, but still lives, then the event upon which B's remainder may take effect is one which may occur after the determination of A's life estate. Hence it would be a contingent remainder. The English courts at first so held.®* But later it was determined and settled that the limitations should be read as if they wereJ;o A for life, remainder to B and his heirs, provided, however, that A shall have power to appoint among his children and by such appointment divest the interest of B, — thus making the exercise of the power of appointment a condition subsequent instead of the default of appointment a condition precedent.'''' This rule has been 16\- * »6 Webb V. Hearing, Oro. Jae. 415 67 Ante, § .327. (1617), Kales' Cases on Future In- «i Ante, §309. terests, 155. The New Hampshire "a Levies 's Case, 10 Co. 78a; Wal- oases referred to, supra, appear to pole and Conway, Barnard. Ch. 153. have been overruled: Kennard v. 'oDoe d. "Willis v. Martin, 4 T. Kennard, 63 N. H. 303; Wiggin v. E. 39. Perkins, 64 N. H. 36; Parker v. Boss, 69 N. H. 213. 355 § 333] FUTURE INTERESTS [Ch. XV lowed in many cases ever since J* It is the settled rule in Illi- noisJ2 § 333. Where the limitations are by devise to A for life, remainder to B (an individual as distinguished from a class) "if" or "when" he shall attain a given age, or "at" a given age, with a gift over in the event of his dying under that age: Here the contingency that B reach twenty-one is expressed both as precedent in form and as subsequent in form. If the ex- pression of the condition as precedent in form were eliminated, the remainder would be vested subject to be divested. During its continuance it would stand ready to take effect whenever and however the life estate terminated. It came to be the result of the English cases, under what was known as the rule of Edwards v. Hammond^ ^ that in just the case put the words embodying the expression of the condition as precedent in form might be disregarded and the remainder was, therefore, held to be vested.^* This shows the lengths to which the English judges have gone in construing a remainder so that it would fall within the definition of a vested remainder. It illustrates the vitality of the rule that courts lean in favor of a construction which will make the remainder vested. § 334. Suppose the life estate be omitted and the limitations are directly to A "if" or "when" he shall attain twenty-one, with a gift over in case he dies under that age: The English cases applied the rule of Edwards v. Hammond''^ even here and held that A took a fee at once in possession subject only to be divested by an executory devise over if he died under the specified age.''* Again the condition precedent was disregarded. This course of decision was carried even a step farther. If real 71 Gray 'a Eule against Perpetui- 7* Edwards v. Hammond, 3 Lev. ties, §112. 132 (1683); Bromfield v. Crowder, 72 Harvard College v. Baloh, 171 1 B. & P. N. R. 313 (1805) ; Eoome 111. 275; Kirkpatrick v. Kirkpatriek, ii. Phillips, 24 N. Y. 463; Theobald 197 111. 144; Bailsback v. Lovejoy, on Wills, 7th ed. 573; Hawkins on 116 111. 442; Sayer v. Humphrey, Wills, 2nd ed. by Sanger, 287. 216 HI. 426; Bergman v. Arnhold, 753 Lev. 132 (1683). 242 111. 218; Powers v. Wells, 244 76 Leake, Digest of Land Law, 111. 558; Meldahl v. Wallace, 270 367; Theobald on Wills, 7th ed. 111. 220. See also, Lehnard v. 573; Hawkins on Wills, 3rd ed. by Specht, 180 111. 208. Sanger, 287. 733 Lev. 132 (1683). 356 Ch. XV] REVERSIONS AND KEMAINDERS [§335 estate were devised to B for a term of years till A reached twenty-one and then to A when he attained that age, A was held to take the fee absolutely and indefeasibly, subject to the term. If A died before he reached twenty-one his interest went to his heirs subject to the term. The apparent contingency is made to read as if it were "at the end of the term, to A. This is known as the rule in Boraston's Case.'''' It was referred to with approval in Carter v. CarterJ^. In Btish v. Hamill ^^ the rule in Boraston's Case and the extension of the rule in Edwards V. Hammond were approved and applied.*" An undivided one- fourth was devised to Charles for a term of years till Eldon reached twenty-oiie. Subject to this term the fee was devised to Eldon in these words: "In ease my said grandson lives to attain the age of twenty-one years, it is my will that said un- divided one-fourth of my real estate shall become his prop- erty in fee simple." Then there was a gift over, "In case my said grandson, Eldon Hamill, should die before attaining the age of twenty-one years." The court discussed these ques- tions: Did this give Eldon a fee subject to a term, which fee was limited upon a condition precedent that Eldon must sur- vive the age of twenty-one years, or was the fee an immediate estate in possession (often called vested) subject to a term, and liable merely to be divested ? The latter position was sustained. This would seem to commit our Supreme Court to the rule of Edwards v. Hammond, and to the extreme position taken in the English cases that in some instances an excuse must be found for disregarding or getting' rid, by interpretation, of a condi- tion precedent in form to the taking effect of a remainder or other interest. § 335. Where the limitations a,re by devise to A for life, then to the children of A (a class) "at," "when" or "if" they attain twrenty-one, with a gift over in default of children who attain twenty-one: Here the rule is the same as in § 333. The remainder to the children is vested subject only to be divested. It makes no difference that the ramaihder is to a class. *' This "3 Co. 19a, 20b; HawMns on 79 273 111.132. Wills, 3ra ed. by Sanger, 284; so See also Lunt i). Lunt,/108 111. Leake, Digest of Land Law, 266. 307, 313, 314; Kingman v. Harmon, "234 111. 507,' 514. But compare 131.111. 171, 175. the result reached in Kingman v. si Doe v. Nowell, 1 M. & S. 327 ; Harmon, 131 111. 171. .5 Dow. 203 (H. of L.) ; Doe v. 357 § 336] FUTURE INTERESTS [Ch. XV again shows how far the English judges would go to construe a remainder so that it would fall within the feudal definition of a vested remainder. §336. Where the remainder is to "the children of A who shall attain twenty-one" or "to such children of A as shall attain twenty-one," with a gift over in default of children attaining that age : Here the attainment of a given age is so explicitly made a part of the description of the devisee that the English courts were unahle to say that there was not an ex-- pressed condition precedent to the taking effect of the remainder. They were obliged, therefore, to hold the remainder contingent and destructible by a rule of law defeating intent.** § 337. Limitations to A for life, remainder to B "if he sur- vive A; if he does not" to C: In one English case where such limitations were involved,*^ the court refused to apply the rule of Edwards v. Hammond.^* The condition precedent in form that the remaindei'man survive the life tenant could not be dis- regarded. The remainder was, therefore, contingent and de- structible by a rule of law defeating intent. The New Hampshire court on the other hand, relying on the rule of Edwards v. Ham- mond, disregarded the condition precedent of survivorship and held the remainder vested and therefore liable to be accelerated by the renunciation of the life tenant.*^ This indicates what Ward, 9 Ad. & El. 582; Doe d. were to A for life, remainder to B Evers v. Challis, 18 Q. B. 224, 231; and his heirs "in case she shall 7 H. L. 531. survive and outlive the said A but 82Festing ■;;. Allen, 12'Mees. & not otherwise, and in case she die W. 279 (1843); -Bull v. Pritchard, in the lifetime of the said A, then 6 Hare, 567 (1847), 1 ftuss 213; to A and his heirs." Holmes v. Prescott, 33 L. J. Ch. S4 Ante, § 334. ' N. S. 264 (1864) ; Rhodes v. White- ss Parker v. Ross, 69 N. H. 213. head, 2 Br. & Sm. 532 (1865) ; In this ease after a life estate in Theobald on Wills, 7th ed. 573-574; the whole property there was a de- Hawkins on Wills, 3rd ed. by San- vise of portions to the children gcr, 289. Contra: Browne v. ''then living" of three different Browne, 3 Sm. & Q. 568 (1857). sisters, then follows the gift over Cf. Jul! V. Jacobs, 3 Ch. D. 703, in these words: "If there should 713 (1876). See also, Pitzel v. not be any of the children of any Schneider, 216 111. 87. of my deceased sisters living, their 83 Doe V. Scudamore, 2 Bos. & P. portion shall be divided equally 289 (1800). Here the limitations among the other legatees." 358 Ch. XV] REVERSIONS AND REMAINDERS [§339 courts are likely to do and the length to which they may go in construing a remainder so that it will be vested. § 338. Limitations to A for life, remaindei' to the children of A "who survive^" and if any die before A to their chil- dren, if any; if not, then over: Here the remainder to the children who survive A is regularly held contingent and de- structible ** and inalienable.*'' Mr. Justice Vickers in Northern Trust Pompany v. Wheaton ss brings out very clearly the dif- ference between the ease where the contiilgency that the remain- derman survive the life tenant is expressed only as subsequent in form and where it is expressed both as precedent and subsequent in form. He says, "An estate may be vested and a clause added introducing a condition upon the happening of which it will be divested. Thus, a devise to A for life, remainder to his children, but if any child dies in the lifetime of A his share to go to those who survive, the share of each child is vested but subject to be divested upon his death during the life of A, On the other hand, a devise 'that all of the residue, rest and remainder of my estate, real, personal and mixed, then remaining in the ■ hands of said trustees shall be equally divided among such of my four children [naming them] as may survive my said wife or the issue of any of my said children who may have died before my wife, such issue to take the share that would have belonged to the parent,' creates a contingent remainder." § 339. Where the limitations are "to A for life, remainder to the children of A who survive A and to the children of any who do not survive A," without any further gift over: Here also the remainder is held to be contingent. The expressed con- dition precedent in form that the children of, A must survive A cannot be disregarded.^^ s'Blakeley v. Mansfield, 274 111. 53 Conn. 261; Nodine v. Greenfield, 133; Barru. Gardner, 259 111. 256; 7 Paige Ch. (N. T.) 544. Brechbeller v. Wilson, 228 111. 502. ss 249 111. 606, 612. 87 Bobeson v. Cochran, 255 111. 89 Haward v. Peavey, 128 111. 430 ; 355. See also Wakefield v. Wake- Thompson v. Adams, 205 111. 552. field, 256 111. 296. See also Starr v. Willoughby, 218 In other jurisdictions a tendency 111. 485, where, however, the point may be observed to disregard the was not really involved because the condition precedent of survivorship remainderman died, leaving children in the case put and to hold the re- who were entitled in any event, mainder vested: Famam v. Farnam, Cases may no doubt be found 359 § 340] FUrUEE INTERESTS [Ch. XV § 340. Where the limitations axe to A for life^ remainder to B "if he survive A" and if he does not and dies without leav- ing issue, over to C: Here if B must survive A in order to take, then, upon B's death before A leaving children, the chil- dren will be excluded but the gift over will not take effect, and there may be an intestacy or the residuary clause may apply. Under these circumstances the inclination is very strong to con- ' strue the remainder vested by disregarding the express condi- tion precedent of survivorship. Romilly, M. R. in Pinch v. Lane^° held the remainder vested and the children of the re- mainderman who died before the life tenant were entitled. Our Supreme Court had the same situation before it in City of Peoria v. Darst ^i and declared the remainder was contingent. This was unnecessary to the decision, however, because the re- mainderman died before the life tenant without issue and the gift over, therefore, took effect whether the remainder was vested or contingent. It may be that the court felt bound- to hold the remainder contingent so that the gift over would take effect as a further contingent remainder and not as a shifting interest or fee on a fee. The court may have thought it neces- sary to take the latter view because it labored under the mis- apprehension, that the ultimate gift over was a fee on a fee by deed, and therefore, void.*^ Once the fallacy that there cannot be a fee on a fee by deed operating under the Statute of Uses is dissipated, as it now seems to be,^* there is no reason why the court should not handle the question of construction upon general and well-settled principles and consider the remainder vested, as was done in Finch v. Lane. Where, however, the re- mainder was limited to A and B if they survived the life tenant, with a gift over to the survivors if either died without issue, and if one died leaving issue one-half to such issue and the other half to the survivor, there was not the same argument as in Finch V. Lane for vesting the remainder and the remainder where even such a remainder as is soL. E. 10 Eq. 501 (1870). referred to in the text has been held oi 101 111. 609. vested, the condition precedent of 92 Post, .§ 445. survivorship being disregarded. as post, § 462. See Wood v. Eobertson, 113 Ind. 323. 360 Ch. XV] EEVERSIONS AND REMAINDERS [§342 was, therefore, held to be contingent on the remainderman sur- viving the life tenant.^* § 341. Where the limitations are to A for life, remainder to "his children surviving him" with a gift over if A die "without issue surviving him": Here if A has a child who dies before him leaving issue, the latter cannot take if the re- mainder to the children is contingent on their surviving the life tenant. The gift over cannot take effect befeause A does not die without issue surviving. There may be an intestacy. These circumstances, together with the fact that the remainder if con- tingent is destructible and inalienable and the fact that the courts construe it vested if possible, might warrant the remainder being held vested as in the case of Finch v. Lane.^^ If the re- mainder, instead of being limited to A's children "who survive A," were limited to A's children "or the survivor or survivors of them, "'there would be a still further argument in favor of vesting the remainder in the feudal sense subject only to be di- vested, so that the remainder would be indestructible by any rule of law defeating intent. Our Supreme Court in Smith v. Chester ^^ seems to have inclined to the contrary opinion and the remainder was there held contingent and destructible. In Robeson v. Cochran,^'' where the limitations were by deed to A for life and on his death leaving issue, to such issue in fee, but in case of A's death without such issue, to the grantor, the re- mainder to the children of A was held to be contingent on their surviving the life tenant. It appeared that no child of A, who died in A's lifetime, had left issue. §342. Where the limitations are to A for life, remainder, "in case A dies leaving any children surviving," to them, the issue' of any child taking their deceased parent's share; but should A survive all the children (they having died without issue) then to A: Here the contingency of one of A's children dying without leaving any issue is not provided for. If that child's interest is vested it will descend upon the child's death before the life tenant. If not, there may be an intestacy. In Siddons v. Cochrell ^^ our Supreme Court appears to have dis- regarded the express condition precedent of survivorship and 91 Chapin v. Crow, 147 111. 219. 97 255 HI- 355. 95 L. E. 10 Eq. 501 ; ante, § 340. 98 131 111. 653. 96 272 111. 428. 361 § 343] FUTURE INTERESTS [Ch. XV held the remainder vested, with the result that when one child died without issue in the life of the lif^ tenant his interest passed by descent. This case is notable as showing how far the court is prepared to go to make a remainder vested. It is es- pecially important in view of the eases referred to, post, §§ 350 et seq., where our Supreme Court seems to have developed an extraordinary astuteness in making the remainder contingent. § 343. Remainder to A, B and C, "or the survivor or sur- vivors" of them: Here survivorship must be referred to the death of the life tenant and not to the death of the testator. Hence only those can take who survive the life tenant.®^ This is so whether the remainder is vested subject to be divested or subject to a condition precedent in form that only those are to take who survive the life tenant. Suppose, however, the life estate and what would be the reversion in fee if the remainder were contingent unite so as to terminate prematurely the life estate. In that case the question would arise whether the re- mainder were to those of A, B and C who survive the life tenant, so as to be a contingent remainder and destructible, or a re- mainder to A, B and C, vested subject only to be divested if any die before the life tenant in favor of survivors.^ It is sub- mitted that having due regard for the fact that taken literally OS In re Gregson's Trust Estate, i So if A, B and all died before 2 De G. J. & S. 428; In re Belfast the tenant, the question would arise Town Council, 13 L. R. (Ir.) 169; whether the remainder to A, B and City of Peoria v. Darst, 101 III. C was vested subject to be divested 609. in favor of a survivor, or was not The same rule has long been ap- to take effect at all except in such plied in bequests of personalty. as survived the life tenant. It may Hawkins on Wills, 3rd ed. by San- be worth noting in this connection ger, 312. that according to the English cases The earlier English cases, in the ' ' a bequest to several, or to a class, effort to vest a remainder of real 'or' to such of them as shall be , estate and thus avoid the feudal living at a given period, is con- consequences of the remainder being strued as a vested gift to all, sub- eontingent, construed ' ' survivor ' ' as ject to be divested in favor of those meaning survivor of the testator living at that period, if there be and not of the life tenant. Doe v. such; and if none are then living, Prigg, 8 B. & Cr. 231, and see the all are held to take." Hawkins on opinion of the Lord Justices in In Wills, 8nd ed. by Sanger, 318. re Gregson's Trust Estate, supra. These decisions must now be re- garded, as overruled. 362 CH. XV] REVERSIONS AND REMAINDERS [§ 345 the form of words used makes only a condition subsequent or divesting clause and the rule that the courts will construe a remainder vested, if possible, the remainder might be wholly vested in A, B and C, subject only to be divested and hence not destructible by any rule of law defeating intent. The con- trary result seems to have been reached, however, in Smith v. Chester.^ The remainder has also been held to be inalienable inter vivos by execution sale during the life of the life tenant.* § 344. Limitations to A and B for life and in case of the death of either, to the other: This creates a remainder which is subject to a condition precedent in form that the remainder- man survive the life tenant. It is, therefore, a contingent re- mainder.* § 345. Gases where a remainder has been limited without any explicit condition precedent in form that the remainder- man survive the life tenaat, but where there has been a gift or gifts over in case the remainderman dies before the life tenant — Bearing of the results noted in the preceding sections upon the problem of construction now presented: An examination of the preceding sections, especially §§ 330-344, will show that the cases considered have been those where there was in the context an express condition precedent in form to the remainder taking effect and where the courts went to an extreme limit in disregarding the language providing for such a condition prece- dent in order to bring the remainder within the feudal defini- tion of a vested remainder so that it would be indestructible and alienable. In some instances the courts disregarded the express "contingency entirely or turned it into a phrase introducing the remainder by such words as "whenever and however the pre- ceding estate determines. " ^ In one instance they twisted the condition expressed as precedent in form only into a condition 2 272 111. 428. See also Thomp- by deed was void. The moment son V. Adams, 205 111. 552, and this fallacy is exploded there is no Meldahl v. Wallace, 270 111. 220. longer any reason why the court As already explained, ante, § 340, should adhere to the proposition that the only reason for the courts in- the remainder in such a case must sisting, in the City of Peoria v. be contingent. Darst, 101 IlL 609, that the re- s Hull v. Ensinger, 257 111. 160. mainder was contingent was to * Cover v. James, 217 lU. 309. avoid the rule that a fee on a fee 5 Ante, § 330. 363 § 345] FUTURE INTERESTS [Ch. XV expressed as subsequent in form.* In other instances they dis- regarded the express condition precedent in form and regarded only the condition expressed as subsequent in formJ The errors (if they may be so called) of the English judges were in favor of vesting the remainder, not against vesting. Ameri- can cases have in some instances gone further than the English in making the remainder vested.* In view of these results what is to be expected when the re- mainder has been limited to individuals or a class without any explicit condition precedent in form that the remainderman survive the life tenant but with a gift or gifts over which pur- port to divest the remainderman's interest if he dies before the life tenant? First: There is no doubt about the difference (so far as vest- ing is concerned) between the remainder on the one side limited without any condition precedent in form to its taking effect and with a condition subsequent in form which purports to divest it if the remainderman dies before the life tenant, and on the other, the remainder which is subject to a condition precedent in form that the remainderman survive the life tenant. The former is vested and the latter not. Our Supreme Court has made its perception of this plain beyond question. Mr. Justice Vickers in Brechbeller v. Wilson » quoted from Gray's Rule Against Perpetuities, as follows: "Gray, in his Rule Against Perpetuities (sec. 108), lays down the following clear test for distinguishing between a vested and a contingent remainder: 'Whether a remainder is vested or contingent depends upon the language employed. If the conditional element is incorporated into the description of or the gift to the remainder-man, then the remainder is contingent ; but if, after words giving a vested interest, a clause is added divesting it, the remainder is vested. Thus, a devise to A for life, remainder to his children,, but if any child dies in the lifetime of A his share to go to those who survive, the share of each child is vested, subject to be divested by its death; but a devise to A for life, remainder to such of his children as survive him,, the remainder is contingent. The above statement of the rule is in accordance with the 6 Ante, § 332. s Ante, § 340. TAnte, §§ 333, 334, 335, 340. 9 228 111. 502, 506. 364 CH;Xy] REVERSIONS AND REMAINDERS [§345 previous decisions of this court." ^"^ In Smith v. Chester ^^ the Court said: "Where a devise by its terms is to a person for life with the remainder to such of the children of that person as survive at his death the remainder is contingent * * *. On the other hand, where the devise by its terms is to a person for life, remainder to the children of such person, with the provi- sion that should any of said children die without issue, the chil- dren surviving at the death of the testator shall take the share of such deceased children, the remainder in such case has been held to be a vested remainder, * * *." Second: The only way, then, to find a condition precedent in form that the remainderman must survive the life tenant when none is explicitly inserted is to resort to a species of implication or interpretation by which the condition precedent in form is reflected from other parts of the context — in the case under consideration, from the gifts over expressed as subsequent in form. Such a process of implication, that is to say, the finding of express words making a condition precedent in form when no such words are to be found physically in the instrument is a step of doubtful propriety. Third: The chief objection to such a process of implication or reflection of a condition precedent in form of survivorship is that it violates the fundamental rule that courts will do all they legitimately can — and sometimes a little more — to so in- terpret the limitations creating the remainder that there will be no condition precedent in form to the taking effect of the re- mainder. Such a violation of so dearly established and vital a rule is unfortunate enough, but consider the enormity of the error of implying a condition precedent in form that the re- mainderman must survive the life, tenant from the mere fact that there are gifts over if the life tenant does not survive! Of what use is it to announce that a gift over on a condition subsequent in fprm, divesting the remainder if the remainderman 1" The same statement of Gray nounced in Ducker v. Burnham, 146 was quoted with approval by the 111. 9, 23; Haward v. Peavey, 128 Court in Smith v. Chester, 272 111. 111. 430, 439. See also statement of 428, 437. In Lacheumyer v. Gehl- Mr. Justice Vickers in Northern bach, 266 111. 11, 19, and in Trust Company v. Wheaton, 249 111. Strickland v. Strickland, 271 111. 606, 612, already quoted, ante, § 338. 614, 621. The same doctrine is an- n 272 HI. 428, 437. ■ 365 ' § 346] FUTURE INTERESTS [Ch. XV does not survive the life tenant, causes the remainder to be vested and indestructible and alienable, if from the mere fact of the gift or gifts over the court immediately raises by im- plication a condition precedent in form that the remainderman must survive the life tenant ? It would certainly be a reasonable expectation on the part of conveyancers and counsel that when a remainder has been lim- ited to individuals or to a class without any explicit condition precedent in form that the remainderman survive the life tenant, but where there has been a gift or gifts over on a condition sub- sequent in form which divests the remainder if the remainder- man does not survive the life tenant, the remainder would be vested and indestructible and alienable inter vivos. More than that, it would be a fair expectation that a condition precedent in form that the remainderman survive the life tenant would never be reflected back or found by implication from a gift or gifts over if the remainderman died before the life tenant. But even more than that, it might fairly have been expected that slight elements of context connected with the gift over would not be permitted to produce a condition precedent in form that the remainderman survive the life tenant. Such expectations have been fulfilled in some decisions of our Supreme Court. In others they have not. The decisions are in a state of practical confusion. The distinctions drawn are so fine as to escape the perception of any but the most diligent and penetrating constructionist. The writer, while not in sym- pathy with some of the distinctions taken, has nevertheless en- deavored to express them as clearly as possible. § 346. Where the remainder is to named individuals with a gift over, if any die before the life tenant, to survivors: Here our Supreme Court has said the remainder was vested in the feudal sense, following literally Gray's statement in § 108 of his Rule Against Perpetuities.^^ § 347. Where the remainder is to named individuals or to a class with two gifts over, usually one, "if any die leaving children, to such children"; and the other "if any die with- out children, to the survivors," or, "if all die without chil- 12 Striekland v. Strickland, 271 proceeds as if a remainder of real 111. 614 (personal property only was estate were in question), involved, but the court's opinion 366 • Ch. XV] REVERSIONS AND EEMAINDERS [§347 dren, to A": In such cases we should be able ta start with a strong prima facie assumption that the remainder is vested, that no express condition precedent in form that the remainderman must survive the life tenant is present, and that none may be implied or reflected back, from the gifts over. The remainder is, therefore, indestructible by any rule of law defeating intent and alienable inter vivos. The following cases definitely sup- port this position : In Siddons v. Cockrell^^ the limitations were to the widow till her remarriage. After that one-third for life. Then the will provided, "should she survive all my children (they hav- ing died without issue)," to the wife absolutely "but in case of the death of my wife leaving any of my children surviving" to them absolutely, "the heirs of any of my children taking their deceased parent's share." This the court insisted must be read as follows: "I devise all my remaining real and per- sonal estate to my children, and if any children be dead leaving children surviving them, then to them also, — the children of the deceased child, taking the part of their parent; but if all my children shall die without issue before my wife shall die, I devise the same to her." This is a striking example of the courts re-writing the language of a will so as to dissolve away the express condition .precedent in form that the children must survive the death of the life tenant, thus leaving only divest- ing conditions subsequent in form. Taking, however, the limi- tations as the court read them we have a clear case of a re- mainder to a class of children without any explicit condition precedent in form that they must survive the life tenant, with a gift over on the two events specified. No condition precedent in form that the children must survive the life tenant was re- introduced by implication or by any reflection back from the gifts over. The limitations, therefore, stand without any such express condition precedent in form. The remainder is, there- fore, vested in the feudal sense and alienable and indestruc- tible. The court so held.' The result reached was that a child who died before the widow's remarriage had an interest which descended to her heirs.^* 13 131 lU. 653. 1* See also McCampbell v. Mason, Ibl III. 500, 510. . 367 § 347] FUTURE INTERESTS [Ch. XV In Pingrey v. Rvlon ^? the limitations were to two daughters for life and the life of the survivor, with a remainder to four named grandchildren with these provisos: "Provided, however, that should any one or more of my above named grandchildren come to his or her decease without issue before taking in fee simple, that then the share or shares of such deceased grand- child or grandchildren shall be apportioned in equal parts among those of my grandchildren surviving: But provided, also, that if at the time of such decease my said grandchildren left issue, that then such grandchild's share shall go to his or her issue, share and share alike, in fee simple." It was further provided that if either of the life tenants should have other children then the additional grandchildren should take in fee simple on the same terms as the other grandchildren, including those born after the four who were named. The holding of the court recognized that the remainder was in fact to all the grandchil- dren as a class.*® The remainder was, however, vested, sub- ject merely to be divested by the provisos, and hence was in- destructible by conveyances which, if the remainder had been contingent on the remainderman surviving the life tenant, would have terminated the life estate prematurely by merger. We have here, therefore, a perfect example of the remainder which is uncertain to vest indefeasibly until the death of the life tenants — a remainder which, in order to vest indefeasibly, re- quires that the remainderman actually survive the life tenants — and^yet is vested in the feudal sense at the time of its creation because it stands ready, throughout its continuance, to take effect in possession whenever and however, the preceding estates for life determine. Lachenmyer v. GeJilbach^'^ is another leading case of the same kind and to the same effect. There the limitations were to the wife for life; "after the death of my said wife * * • to my children, share and share alike, and should any of my children die, then the children of such deceased child, should any children be surviving such deceased child, to take the share 15 246 111. 109. that the remainder was, in effect and 18 See also Lachenmyer v. Gehl- in form, to the whole class of grand- bach, 266 111. 11, 21, where the children." court said, speaking of Pingrey v. it 266 111. 11. Rulon, 246 111. 109, "It was held 368 . Ch. XV] REVERSIONS AND REMAINDERS [ § 347 of the parent so deceased; and should any of my children die leaving no issue then the share of such deceased child shall he divided equally among my surviving children." It was held that the remainder was vested in the children and was in- destructible by any rule of law defeating intent. /This was directly involved because if the remainder in the children had been contingent there were conveyances which would have ter- minated the life estate prematurely by merger and destroyed all contingent remainders, i* Now let us turn to the cases which might be thought to be out of line with those just analyzed. In Eleinhans v. Kleinhans ^^ the limitations were to a son and daughter for life "and in case of their death, then to their children, only, and if no children are left by them, then the survivor of my said children shall inherit the other's." The court was chiefly concerned in this case with whether the son and daughter took life estates or a fee.^" It ventured the statement, however, that the remainder to the children of the son and daughter was contingent on their surviving the life tenants and therefore was a contingent remainder. The court said: "J'he words 'in case of their death, then to their chil- dren, only' mean that the remainder to the grandchildren is contingent upon their surviving their parents." The use of the context mentioned has long been discouraged as a basis for holding the remainder contingent.^^ It is important to ob- serve also that if the remainder to the children had really been held to be contingent in the feudal sense because subject to a condition precedent in form that the children survive the life tenants, conveyances had occurred which would have termi- nated the life estate prematurely by merger and destroyed the contingent remainders.^^ The decision actually reached re- quired a decree which recognized that the remainder to the children had not been destroyed. The decision, therefore, is 18 In Smith v. West, 103 111. 332, like that presented to the court in the preeise lianguage of the iimita-- Siddons v. Gockrell, supra, Pingrey tions involved is not given. The v. Eulon, supra, and Laehenmyer v. way in which they were summar- Gehlbach, supra. ized and the fact that the remainder i» 253 111. 620. to the children was held vested is 20 Ante, §§166, 167. persuasive that the ld,ng)iage con- 21 Ante, § 330. strued by the court in that case was 22 9 111. Law Bev. 438. Kales Fut. Int. — 24 ggg § 347] , FUTXIEE INTEEESTS [Ch. XV really inconsistent with the holding that the remainder to the children was contingent in the feudal sense. That it was con- tingent in the sense that the remaindermen did not take inde- feasibly till they survived the life tenant is, of course, clear. In Meldahl v. Wallace,^^ the limitations after a life estate were to the grantor's daughters without any explicit condition precedent in form that they survive the life tenant. Then there were the following gifts over: "In case of the decease of any of my daughters herein named, intestate, before my death, then in that case the children of such deceased daughter shall take their parent's share, both as to realty and personalty, and if any such deceased daughter so dying intestate leaves a hus- band surviving, that the husband have the same right to the use and enjoyment of both the realty and personalty and the benefit of it as given by the statutes of the State of Illinois." One daughter died childless and intestate and her husband claimed all the personal property and half the realty by in- heritance from her. This was denied. It is submitted the de- cision was correct on the simple ground that the divesting event had happened. The daughter had died intestate leaving a hus- band. The remainder was contingent in the sense of being de- feasible in the events which happened and its indefeasibility could not be ascertained until the daughter survived the life tenant. The remainder of the daughter having been defeated, the husband took only what the deed gave him. The objection to this solution might have been made that the husband's in- terest under the deed' would be a fee after a vested remainder in fee and as such a fee on a fee by deed and void. This is an old fallacy which has been prevalent in this state.** It is now believed to be completely exploded.*® Hence there is no longer any need to twist remainders into being contingent in the feudal sense in order to make a gift over after them valid. ■ In the case under consideration the interests, it is believed, were all equitable and therefore no rule that a fee on a fee could not be created by deed could by any possibility be applicable.*' The expression of the court to the effect that the remainder was contingent upon the daughter surviving the life tenant must be 28 270 111. gao. 35 post, § 462. 3* Post, § 445. , 29 Post, § 472. 370 Oh. XV], BErraRSiONS and eemaindbrs [ § 348 read as meaning that the daughter's vested remainder was sub- ject to be defeated when she died intestate before the life tenant. In Betz V. Farling,^'' the limitations were to the two children for life with gifts over upon the death of either, to his or her children or issue, and if one died leaving no children or issue, to the survivor or her children, with a gift over if both died without issue, to the county of M. One of the life tenants died leaving children and one-half the estate vested in them inde- feasibly. The interest in the other half was contingent in the sense that , if the life tenant died without leaving children it would go over to the children of the deceased life tenant. The question was whether the children of the deceased life tenant could have partition. It. was held that they could. The fact that the children of the living life tenant could not have had it did not prevent the suit. This case did not involve the feudal distinction between vested and contingent remainders. The decree, however, found expressly that the remainder to the chil- dren of the living life tenant was to those who "should be liv- ing at her death" and this was affirmed. This meant that if one child died leaving children before the life tenant, the life tenant's grandchildren would not share, and yet the gift over would not take effect because some children of the life tenant did. survive her. If the decree so provided, its affirmance was unfortunate because the remainder was not subject to any con- dition precedent in form of survivorship. The remainder was vested in the children of the life tenant as they were born, sub- ject only to be divested if all the children . of the life tenant died before the life tenant. > § 348. Where the remainder is to named individuals (who are adults) or to a class (in esse and adult) with a single gift over if any die without leaving children or issue to the sur- vivors; Here the gift over furnishes an argument in favor of vesting and there is an absence of any condition precedent in form that the, remainderman survive the life tenant. If the remainderman die before the life tenant, leaving children, and Ms remainder were subject to a condition precedent in form that he survive the life tenant, his own children would be en- tirely cut off. Where the remaindermen are adults, especially if they are married and have young children, this is a real " 274 m. 107. 371 § 348] FUTUKE INTERESTS [CHrXV danger. Such a result is clearly incongruous .for a testator or settlor who makes a gift over if the remainderman dies with- out leaving children must mean, especially where there is no condition precedent of survivorship, that the remainderman is to take absolutely and indefeasibly in every other event, so that upon his death leaving children they may take by descent or devise from him.^* Under these circumstances the practitioner would surely be justified in a strong prima facie assumption that the court would not find, by any process of implication or reflection back from the gift over, an express condition prece- dent in form that the remainderman must survive the life tenant. The prima facie inference would therefore be that the remainder was vested, alienable and indestructible. Two excellent deci- sions of our Supreme Court support this position. In Ducker v. Burnkam^^ the limitations involved after the creation of a life estate in the testator's wife were as follows: "After the death of my wife I direct that all my property and estate then remaining, both real and personal, be by my surviv- ing executor equally divided between my said five children, share and share alike. In case of the death of any of my said children without issue, either before my death or before receiving either of the portions above given him or her, I direct that the share of such child be equally divided among my surviving children, share and share alike. ' ' The remainder in the children was held to be vested in the feudal sense and therefore alienable upon execution sale. In Hinrichsen v. Hinrichsen ^° the will provided for a life estate in the wife "and at her death the same to be divided equally among my children" and "in case either of my said sons shall die without leaving legal heii-s of their body or heirs thereof, that the said estate shall be inherited by the remaining gQjj « # # " One son died before the life tenant leaving children. The eVent did not happen upon which the gift over was to take effect. No condition precedent of survivorship could be implied or reflected back from the gift over so as to deprive the son 's children of the possibility of inheriting from him. In short, the court held the remainder vested in the feudal sense and not divested by any of the events which had happened. 28 See ante, § 340. 30 172 111. 462. 29 146 111. 9. 372 Ch; XV] REVERSIONS AND REMAINDERS [ § 349 In Spatz v. Paulus ^^ the devise was to the lineal descendants of the life tenant, with a gift over if any life tenant died ' ' with- out leaving lineal descendants or descendant living at his or her death," to the testator's lineal descendants. The court did not construe lineal descendants as heirs of the body so as to make the remainder contingent. It rested its decision that the re- mainder was contingent upon the issue surviving the life tenant entirely upon the gift over if any child died without lineal de- scendants surviving, and perhaps on the ground that in an- other clause the remainder was in terms to lineal descendants surviving the life tenant. The consequence of the remainder beingo contingent on the lineal descendants surviving the life tenant was that it was destroyed by the termination of the life estate by merger. § 349. Where the remainder is to the unborn children of the life tenant with a single gift over if the life tenant die without leaving children or issue surviving: Here the argument from the gift over in favor of vesting the remainder is the same in principle as in the case put in the preceding section. Prac- tically, however, the danger of a remainderman dying before the life tenant, leaving children, is not acute. If the remainder- men are not born when the interests are created the chances that they will be born, grow up, marry and have children before the death of' the life tenant are slight.^^ That this situation should give the court any liberty to imply or reflect back a condition precedent in form that the remainderman must sur- vive the life tenant seems to the writer clearly wrong. That such an implication or reflection back of a condition precedent of survivorship should be effected or not, depending upon whether the remainderman was not in esse or was a married adult, places the subleties of construction upon a par with the mysteries of the infinite extent of the unknowable. Yet the decisions of our Supreme Court show that its views have been decidedly in favor of implying by reflection back from the gift over the condition precedent in form that the remainderman survive the life tenant where the remainderman is unborn at the time the remainder is created. SI 285 111. 82. life tenant is the testator 's wife as »2 They are still slighter if the in Golladay v. Knock, 235 111. 412. 373 § 349] FUTUBE INTERESTS [Ch. XV In Furnish v. Rogers ^^ the limitations were by -mil and the language was very informal. The devise was to the testator's grandniece of certain premises described, "aU of which is to go ,to her children, should she marry; if she should die child- less, then it is to be divided between her mother and the rest of my grandnieces and nephews." It appears to have been held that the grandniece Jessie took a life estate and that the re- mainder to her children was contingent on their surviving her. Hence the interest of the one child born to her was a contin- gent remainder and could not be sold by the guardian. No condition precedent of survivorship could have been foimd in the limitations except by implication and by reflection back from the gift over. The holding may have been influenced by the fact that the case was decided at a time when our Supreme Court was holding that a fee upon a fee could not be created by will.'* The court may have thought that if the remainder to the children of Jessie was vested, the gift over, if she would die childless, would be a fee upon a fee, and so void. To get away from this unfortunate result the court may have felt warranted in turning the remainder to the children of Jessie into a con- tingent remainder, so that it and the gift over if Jessie died childless could both be valid as contingent remainders in double aspect. Since it has become settled that a fee upon a fee by will is good as an executoi^y devise,*^ all necessity for the construc- tion adopted in Furnish v. Rogers is removed and the case is left, it is submitted, without any proper foundation for the holding that the remainder to the children of Jessie was con- tingent on their surviving Jessie. In Golladay v. Knock,^^ the remainder after a life estate in Nancy was "to her children after her death; and if the said Nancy does not have children that will live to inherit said real estate, that the said real estate, at the death of Nancy and her children, fall to Moses and his heirs." Nancy was the testator's wife, She had no children at the testator's death. Subsequently the widow died having had one child who lived to be tweiity-three years of age but died childless prior to the !i3 154 111. 569. overruling Ewing v. Barnes and 3* Ewing V. Barnes, 156 111. 61 ; Silva v. Hopkinson. Silva V. Hopkinson, 158 111. 386. so 235 111. 412. 35 Glover v. Condell, 163 111. 566, 374 Ch. XV] BEVEBSIONS AND REMAINDERS [§349 death of Nancy. The principal question in the case was whether the interesf of Moses was alienable by deed during the life of Nancy. It was held that it was not. In the course of the court's opinion it said: "The clearly expressed intention of the testator was to give his wife a life estate in the premises, with a remainder in fee to such of her children as might be living at the time of her death. ' ' The question whether the interest of the child of Nancy was a contingent remainder in the feudal sense was not in any way involved. If we assume it to have been vested at the birth of the child, then when that child died her vested remainder descended, but when the life tenant died leav- ing no child the vested remainder was divested in favor of Moses or his heirs. At all times after the birth of Nancy's child, Moses had a contingent shifting executory interest and the in- alienability of, that interest by deed inter vivos is the same as the inalienability of a contingent remainder.^^ It is submitted that Golladay v. Knock cannot be used as an authority in sup- port of the proposition that the remainder to the children in the case under consideration is contingent in a feudal sense and destructible and inalienable. Hill V. Hill ** purports to follow Furnish v. Rogers 3" and Golladay v. Knock *° and to be distinguished from Dueker v. Burnham *i and Hinrichsen v. Hinrichsen.^^ In Hill v. Hill the limitations were by deed to the daughter for life and "from and after her decease or determine said estate, to the sole use, benefit and behoof of the child and children of her body, their heirs and assigns forever ; and in the event of the death of the said Mary Jane Hill [the life tenant] leaving no child or chU- ~ dren her issue her surviving, then and in that case to the heirs at law of" the grantor. . When this deed was executed in 1848 the life tenant was a young woman. She had two children prior to 1853 and a number of others afterwards. She lived until 1910. Her children grew up, married and had children and one child died before her, leaving children. Here then, as events turned out, the argument for vesting derived from the gift over be- came a very practical consideration. If the remainder to the life tenant's children was not vested but was subject to a con- 3T Post, § 480. *o 235 lU. 4XS. 38 264 lU. 219. *i 146 111. 9; ante, § 348. 38 154 HI. 569. 42 172 HI. 462; ante, | 348. 375 § 349] FUTURE INTERESTS [Ch. XV dition precedent in form that the children must survive the life tenant, then the children of the child who died before the life tenant never could take by descent or devise from their parent. This was incongruous in view of the fact that the only gift over was if the life tenant died leaving no children at all. Never- less, the Court held the remainder subject to a condition prece- dent in form that the remainderman must survive the life tenant. Hence, the remainder was contingent in the feudal sense and inalienable inter vivos during the life of the life tenant. The point that seems to have weighed most with the court was that when the deed was executed the remainder was to "a class not in existence, which might never come into ex- istence." Ducker v. Burnham^^ was distinguished because there the remainder was to "certain named children." "What the court was driving at was, it is believed, that if the remainder were to certain adults in esse the danger of cutting out the chil- dren of the remainderman dying before the life tenant would be so great as to warrant the court in holding the remainder vested; while if the remainder were to a class not in esse the chance of this would be so slight that the court need pay no attention to it and would be required, therefore, to imply or reflect back a condition precedent in form of survivorship from the gift over. If this line of distinction is sound it also applies to differentiate Hill V: Hill from Hinrichsen v. Hinrichsen. The fault of the decision in Hill v. Hill is the assumption that where there is no explicit condition precedent in form that the remainderman must survive the life tenant, the court is required by some mysterious force to imply it or reflect it back from the gift over unless there is some positive context or incongruity against implying it by such reflection back. This position is fundamentally erroneous. The rule against implications, and especially implications which make the remainder contingent, together with the rule requiring a construction which will vest the remainder, is sufficient to deny the finding of such a condi- tion precedent in form of survivorship. When we add the fact that such argument as is to be fpund in the gift over is an argument in favor of vesting, we should be permitted to set Hill V. Hill down as wrong — a decisipn not to be submitted to 43 146 111. 9. 376 Ch. XV] REVERSIONS AND REMAINDERS [ § 350 until the court has unequivocally stood by it in the face of criticism.** § 350. Where the remainder is to named persons or to a class with a single gift over if any die before the life tenant leaving children then to those children: Here there is little need for the gift over if the remainder is not subject to a con- dition precedent in form that the remainderman survive the life tenant. That is a slight argument that the remainder is subject to such a condition precedent in form. Clearly, however, it is too slight an argument to have the effect of inserting by impli- cation and reflection back from the gift over such a condition precedent in form when none has been explicitly expressed. The rule against implications as well as the rule in favor of vesting forbids it. The practitioner should, therefore, have felt warranted in this class of cases in starting with a strong prima facie assumption that there woiild be found no condition precedent in form that the remainderman must survive the life tenant and that the remainder was, therefore, vested but sub- ject to be divested. Yefe the decisions of our Supreme Court show a strong tendency to find the existence of a condition prec- edent in form that the remainderman must survive the life tenant, so that the remainder is contingent in the feudal sense. These eases can best be appreciated if taken in their chron- ological order. In Spengler v. Kuhn *^ the limitations were equitable and to A for life, or until remarriage, then "the title to the real estate [shall] become vested in my children * * * and if, in the meanwhile, any or more of my children shall have died leaving a descendant or descendants, such deceased child's share shall go to his or her issue, descendant or descendants." The ques- tion arose whether, while the life tenant lived, the interests of two children passed to their- trustee in bankruptcy. It was held that the interests were contingent and did not pass. This meant ** It may be worth noting that been of counsel for the appellee up the first opinion of the court in to that time, were dispensed with ; Hill V. Hill, written by Mr. Justice a rehearing was applied for by both Cartwright, held the remainder sides and obtained. The present vested and gave to the appellee two- opinion of the court was the result, sixths of the property which he had *5 212 111. 186. See also Security acquired by the guardian's sale. Insurance Co. v. Kuhn, 207 111. 166. The services of the writer, who had i 377 § 350] FUTURE INTERESTS [Ch. XV that the court found an express condition precedent in form that the children to take must survive the life tenant. No such con- dition precedent was explicitly included. It is submitted that none should have been implied or reflected back from the gift over. Furthermore, the reference in the will to the remainder "vesting" at the termination of the life estate might have been and should have been held to speak only of vesting in possession or vesting indefeasibly.** Such a reference to "vesting" is too slight a context upon which to find an express condition prece- dent in form of survivorship which will cause the remainder to be contingent in the feudal sense and inalienable and destructible. In Cummings v. Ilamilton *'' the limitations were in substance to A for life with a direct devise of the fee to B, C and D, with a gift over "in case of the death of either B, C or D (prior to the death of my husband [the life tenant] or prior to my decease) leaving a child or children, then in that case such child or chil- dren, or the descendants of such child or children shall inherit the share of the real estate which would have vested in their parents." It was held that the remainder to B, C and D was con- tingent upon their surviving the life tenant so that no merger of the life estate occurred by the conveyance of the life tenant to the remaindermen B, C and D. The question of whether there was a merger raised the question as to whether the remainder was vested according to the purely feudal conception of a vested remainder or a contingent remainder according to the purely feudal conception of such a remainder. In support of the deci- sion holding the remainder contingent in the feudal sense and, therefore, not subject to merger it was urged that "would have vested" indicated that the testator did not regard the interest of the remaindermen B, C and D as vested. But "vest" may equally well refer to "vesting in possession" or "vesting inde- f easibly. " ** So used the word ' ' vei^t ' ' produces no argument in favor of the remainder being subject to a condition precedent in form that the remainderman survive the life tenant. It is sub- mitted that it is not sound or proper that so slight and ambigu- «e Chapman v. Cheney, 191 111. «8 nhapman v. Cheney, 191 111. 574; Lunt v. Lnnt, 108 111. 307; 574; Xunt v. Lunt, 108 111. 307; Burney v. Arnold, 134 Ga. 141; Burney v. Arnold, 134 Ga. 141; pogt, § 354. post, § 354. « 220 111. 480. 378 Ch. XV] REVERSIONS AND KEMAINDERS [§350 ous a special context should overcome the general rule against implications of conditions precedent in form of survivorship and be used to support a construction which will vest the remainder. In Brownback v. Keister,*^ ^after life estates, it was provided that the lands "shall vest in fee simple absolutely in the said now living children of my said son Julius [the life tenant] and his present wife, Matilda, and their descendants, share and share alike, the descendants of any of said above named children taking the share of their parents. " As the children of Julius had al- ready been named there was a direct gift to them without any explicit condition precedent in form of survivorship. The whole context indicated that the gift to descendants was substitutionary and in the event that any child of Julius died during the con- tinuance of the life estates leaving descendants. It was held that the remainder to the children of Julius was subject to a condi- tion precedent in form that they survive the death of the life tenants, with the feudal consequence that the interests of the children were not alienable inter vivos during the life of the life tenants. It was. of course, true that to take indef easibly the chil- dren of Julius must survive the l^fe tenants, but since this is expressed solely by inserting a condition subsequent in form, the remainder in fact stood ready, so long as it continued undi- vested, to take effect in possession whenever and however the preceding life estate determined. It was therefore vested in the feudal sense and alienable inter vivos. The result reached by the court seems even less justifiable than that which obtained in Gumnings v. Hamilton. In Northern Trust Company v. Wheaton^'^ an equitable re- mainder was limited to ten named beneficiaries without any ex- plicit condition precedent in form of survivorship. In fact, the limitation of the remainder was directly to the named persons. Then there was the following gift over: "In the event of the death of any of the ten persons above named as beneficiaries before the interest in my estate shall vest in them, leaving a child or children surviving at the time said estate shall vest, then said child or children of such deceased person shall take their par- ent's share." One of the ten died before the life tenant, leaving no child. It was held that her interest was not subject to any " 220 111. 544. 60 249 111. 606. 379 § 351] FUTUBE INTERESTS [Ch. XV condition precedent in form that she must survive the life tenant, and therefore since the divesting event had not occurred her interest was indefeasible and passed to her heirs at law or de- visees. This looks at first like a strong case for the general rule that the remainder in question will not be subject to any condi- tion precedent in form that the remainderman survive the life tenant by a process of implying by reflection back from the gift over such a condition, and that therefore such remainders may be taken as prima facie vested, subject merely to be divested. But upon a closer examination it appears that the result was reached by referring "death," in the gift over if the remainder- man died leaving children, to death in the lifetime of the testator exclusively. The basis for this was the fact that death before vesting was particularly mentioned, so that if "vest" were used in the feudal sense the vesting occurred at the testator's death and "death before vesting" meant "death before the testator." The court, therefore, avoided holding the remainder vested but subject to a gift over upon the remainderman's death after the death of the testator and in the life of the life tenant. The case does not, therefore, rebut the inference from Spengler v. Euhn, Cummings v. Hamilton and Brownback v. Keister, that in this class of cases a condition precedent in form that the remainder- man must survive the life tenant is being regularly implied or reflected back from the gift over, fespecially if any reference appears in the context to the remainder "vesting" at the death of the life tenant. ' In Bemmers v. Eemmers ^^'the devise after a life estate was to the testator's sons, with a single gift over if any died before the life tenant to their children, if any, the children to "take the shares of their deceased parents. ' ' The remainder was held to be vested subject to a gift over. The actual decision was that the remaindermen could not have specific performance against the buyer because of the gift over. § 351. Suppose the remainder be limited "to the life ten- ant's children who survive the life tenant and in case any die leaving- children to such children," is the ultimate gift over also contingent upon the grandchildren surviving the life tenant? The writer's answer would be no. There is no ex- plicitly expressed condition precedent in form that the grand- 51280 111. 93. 380 Ch. XV] REVERSIONS AND REMAINDERS [§351 children survive the life tenant. The rule against implications of such contingencies forbids it. The rule against construing re- mainders to be contingent and, therefore, destructible and in- alienable forbids it.^^ guch inferences as may be made from the context are against the jQnding of any condition precedent of survivorship. The gift is an ultimate one. There is no further gift ov£(r. If, therefore, the additional contingency of survivor- ship be added, the danger of an intestacy is greatly increased. There is also the remote possibility that those ultimately to take may die in the lifetime of the life tenant leaving children. These would be cut off if the contingency of survivorship, be found to exist. The fact that the ultimate gift over is subject to one contingency, namely, that the life tenant's children die in the life tenant's lifetime leaving children, does not in and of itself produce the slightest argument that another and different con- tingency is to be added. Nor is there any logic in the assertion that a contingency of survivorship applicable to the children of the life tenant can be reflected forward to the next gift. What- ever logic there may be in reflecting a condition of survivorship back from gifts over, no similar process justifies the reflection of a condition of survivorship forward.^* These views, while perhaps not yet permanently discarded by our Supreme Court, have certainly up to the present time not been followed. In Brechieller v. Wilson ^* the remainder after a life estate in the wife was limited to "such of my four children [naming them] as may survive my said wife, or the issue of any of my said children who may have died before my wife ; such issue to take the share which would have belonged to the parent ; aud in the event of the death of any one or more of my said four children without issue before the death of my said wife then his, her or their share" shall go to the survivors and the children of any who may have died leaving issue. Before the life tenant 's death one child of the testator died leaving a child who also died before the life tenant. It was held that no interest passed by descent 52 The English cases seem to have ders but shifting executory devises reached results in accordance • with makes no difference because such these views. Theobald on Wills, interests are valid by will, and also 7th ed. 678. by deed, taking -effect under the 63 The fact that the interests of Statute of Uses. Post, §§ 462, 467. the grandchildren were not remain- 54 228 111. 502. 381 § 352] FUTURE INTERESTS [Ch. XV from the grandchild because his interest was also contingent on surviving the life tenant. In Bremck v. Anderson ^^ the testator limited the remainder, after a life estate in the wife, to his children without any ex- press condition precedent in form that they must survive the life tenant, and "and in case of the death of any of my chil- dren before the distriblition of my estate, then in .ease they have left at said time of distribution any living issue, then said child or children to take the part of my deceased child or children." When the will was made one child of the testator, Josephine, was dead, leaving a daughter Clara. At the testator's death, therefore, Josephine's interest was eliminated and there was a direct and immediate remainder (subject to the life estate) to Clara, with an express condition precedent, that she must be alive at the time of the distribution of the estate, which meant the death of the life tenant. The case, therefore, is a plain one of a remainder limited with an express condition precedent in form that the remainderman survive the life tenant. That suf- ficiently explains the result reached. § 352. Suppose there is first a contingent remainder to the life tenant's stirviving children or to her lineal heirs and then a remainder is limited to a class upon the life tenant's dying without leaving children or issue — Is the second re- mainder to the class also contingent upon the remainderman surviving the life tenant? The reasons for answering this in the negative are the same as those set out in the preceding sec- tion. The cases do not differ in any material respect. Yet our Supreme Court has held the ultimate remainder to be subject to a condition precedent in form that the remaindermen survive the life tenant. In Drury v. Drury ^® the limitations were to Myrtle, a grand- daughter for life. "At her death the fee simple title to all of said lands shall pass to and become vested in the heirs of her body, and in case of her death without a child or children the title thereto shall become so vested in my great-grandchildren." Myrtle died in 1912 without issue. Gertrude, one of the testa- tor's great-grandchildren in esse at the time of his death died prior to the death of the life tenant and her heirs at law claimed. It was held that they^ were not entitl the mother was not entitled. The heirs of the brother only were en- , titled who were ascertained as such at the death of E, thus excluding E); Jenkins v. Bonsai, 116 Md. 629 (to the daughter for life; if she leaves no children then to the testator's son T. M. J. absolutely. T. M. J. died intestate before the daughter leaving a wife but no de- scendants. The widow died leav- ing a will in which L. B. was named as executor. Upon the death of the daughter without descendants it was held that the remainder of T. M. J., though descendible, did not pass to T. M. J. 's widow and therefore did not pass by her will. Descent was to the heirs of T. M. J. at the death of the life tenant, at which time T. M. J. 's jwidow was dead. Held, also, that the rule applied to personal property as well as to real estate). 8* Cook V. Hammond, 4 Mason (U. S.) 467, (Story, J.) Massachusetts Act: "When any person shall die seized of any lands, tenements or hereditaments, or of any right there- to, or entitled to any interest there- in." Kean's Lessee v. Eoe, 2 Harr. 103, 113 (Del. 1841). (The statute read: "When any person having title or any manner of right, legal or equitable.") Hicks V. Pegues, 4 Eich. Eq. (S. C.) 413. Act. of 1791 read: "Where any person possessed of, interested in, or entitled unto, a real estate." Lakey v. Scott, 15 N. Y. Weekly Digest 148. Evidently a New York statute changing the law from what it had formerly been. Moore v. Bake, 26 N. J. L. 574, 582 (1857). Statute read: "When any person shall die seized of any lands, etc., in his or her i own right in simple fee." Held, "die seized" was the same as "entitled." 65 E. S. 1874, ch. 39, sec. 1. 413 § 381] FUTURE INTERESTS [Ch. XV our Statute on Descent since 1829.®^ It is now settled by North V. Graham^'' that "estates" in this Act refers to estates to which the deceased is ' ' entitled, ' ' so that descent is traced from the person last entitled. In that case a grantor upon a con- veyance to a charitable corporation became, according to the settled view in this State,^® entitled to a possibility of reverter which gave him the right to obtain back his fee again upon the dissolution of the grantee corporation without debts. During the life of the corporation the grantor died leaving surviving him as his only heirs three daughters. One daughter died un- married without issue, leaving as her only heirs her two sisters. Of the tVo remaining sisters one died married, leaving a child. That child died leaving as her only heir, her father. Subse- quently the corporation dissolved. According to the common law doctrine of descent the surviving daughter of the grantor would have taken the whole estate, while under the rule as generally adopted by statute in this country, descent would have been traced from the person last entitled in regular succession, and the surviving daughter of the grantor would have taken an undivided one half interest and the grantee of the brother-in- law the other undivided one half. The latter view and the results depending thereon were adopted by the Court. The soundness of the result reached is clear. The natural meaning of the word "estates," as used in the Statute on Descent, is "estates to which deceased shall be entitled." Such it is believed is the primary meaning of the language used at the time it was used by the legislature. To say that it referred only to estates to which the deceased died actually seized, would be. far-fetched and uncalled for. Such a construction upon lan'guage substantially similar has been adopted in Georgia,®' and Pennsylvania.'^" The interpretation of the Illinois Act adopted by our Court is fortified by reason of the fact that in 66 Laws 1829, p. 191, sec. 43; E. 67 235 111. 178. S. 1845, ch. 109, see. 46; 1 A. & os Life Assn. v. Fassett, 102 111. D. E. E. S. 505. Prior to 1829 the > 315, 323; Mott v. Danville Semi- statutes seem to have read: "The nary, 129 111. 403; Presbyterian estates, both of resident and non- Church v. Venable, 159 111. 215. resident proprietors » * * shall 69 Thompson v. Sandford, 13 Ga. descend." See 1 A. & D. B. E. S. 238; Oliver v. Powell, 114 Ga. 592, 439, 450, ordinance of 1787, sec. 2, 600. Laws 1819, p. 223, sec. 21. 'o Cote's Appeal, 79 Pa. St. 235. 414 Ch. XV] REVERSIONS AND REMAINDERS [§ 382 the Act real and personal property are treated together so far as the rules for tracing descent are concerned. The common law rule never, of course, had any relation to the distribution of personal property. The fact then that real and personal property follow the same rules of descent and the incongruity of applying the common law rule to personal property, is a strong argument that the rule relating to personal property was intended to he applied in the case of real estate. This argu- ment was potent in Hillhouse v. Chester ; ^^ Thompson v. San- ford;'"' and Cote's Appeal.'^^ Furthermore, the Illinois Act follows the general, scheme of the Statute of Distributions of Charles II, relating to personalty. This was held in Hillhoiise V. Chester ''* to be a sound argument in favor of a construction of the Statute which repudiated the common law rule that descent must be traced from the person last seized. The com- mon law mode of tracing descent is, is it submitted, extremely foreign to the customs and practice in this state and in^ the country at large, and this was found in Hillhouse v. Chester ''^ to be a strong argument for^a construction of the Statute on Descent which abolished the common law rulei §382. There should be no distinction in the tracing of descent between reversions and vested remainders on the one side and contingent remainders and executory interests on the other: Since the mode of tracing descent from the person last entitled depends upon the Statute on Descent there can be no ground for saying that the descent of reversions and vested remainders is to be traced in one way and the descent of con- tingent remainders and contingent executory interests in an- other. If the contingent remainderman dies before the life tenant his right or interest passes by descent to his heir and upon that heir's death before the contingency happens, to his heirs, and so on. There is no difficulty in this because the con- tingent remainderman has the right to secure an estate. It passes by descent even under the feudal land law.^^ The legis- lature has full power to say how that descent shall be traced and it has spoken. In Georgia, however, where the descent of reversions and vested remainders is from the person last '1 3 Day (Conn.) 166, 210. " 3 Day (Conn.) 166; 210. 72 13 Ga. 238. ■'s Id. " 79 Pa. St. 235. 76 Ante, § 324. 415 § 382] FUTURE INTERESTS [Ch. XV entitled/'' the descent of a contingent remainder or contingent executory interest is traced from the first purchaser at the time the contingency happens J^ It looks as if our^Supreme Court' had dallied with the same distinction. In North v. Graham''^ a possibility of reverter was involved which was inalienable inter vivos at common law, like a contingent remainder, and from the feudal point of view after the Statute of Quia Emptores had abolished tenure, was no more than a remote future right. Nevertheless, before the Statute of Quia Emptores it was in effect a reversion. Our Supreme Court emphasized the fact that "the right or interest under the possibility of reverter is very like, though, as we haVe seen, not strictly identical with, a reversion,"*" thus indicating that in tracing its descent the rule applicable to a reversion would be followed. On the same day that the opinion of the court in North v. Graham was handed down, the opinion of the court in Golladay v. Knock ^i was filed. In that case there was a contingent remainder after a life estate in case the life tenant died without leaving children,, to "Moses Golladay and his heirs." Moses, the contingent re- mainderman, died during the life of the life tenant leaving as one of his heirs his son William. William made a warranty deed to Ftiller and died before the life tenant leaving the com- plainants as his heirs. It was held that the complainants were entitled as agai'nst Fuller. This goes on the ground that the doctrine of lineal warranty did not apply,*^ or that descent was traced from Moses when the remainder vested, so that there . was never any descent to William. It could not have gone on the ground that the limitation to "Moses and his heirs" meant Moses "or his heirs" without running necessarily into the question of lineal warranty. If ' ' and ' ' had been construed " or " the limitations would have been to Moses, or if he were dead, to his heirs. This would have meant his heirs at the time of his death,*^ and so would have included William, and the question of lineal warranty would have arisen. There is no indication that the court was intending to deal in any way with the doc- " Oliver v. Powell, 114 Ga. 592, 79 235 111. 178. 600; Thompson v. Sandford, 13 Ga. so/d., 184. 238. '81235 lU. 412. , 78 Payne v. Eosser, 53 Ga. 662; S2 Ante, §323. Collins V. Smith, 105 Ga. 525, 532. ss Post, § 571. 416 Ch. XV] KEyERSIONS AND REMAINDERS [§383 trine of lineal warrant}^ The only language used by the court was "No title ever vested in him [William]. His children are not estopped by the covenants in this deed for the reason that they are not asserting a title by descent from their father, but are claiming under the will of George GoUaday, as heirs of Moses Golladay/' If this be read "the complainants were claiming under the will a contingent "remainder as heirs of Moses," it would amount to a statement that descent was being traced from Moses ; but it could hardly do that and at the same time ignore North v. Graham. It is not unlikely that the court thought by taking "heirs" in the limitation to "Moses and his heirs, " as a word of purchase, the persons who would have been Mases' heirs if he died at the time of the vesting of the remain- der, were designated.** The statement of such a position indi- cates the difficulty in supporting it.*' Perhaps the best course is to put the case down as not deciding anything about lineal ■warranty, the tracing of descent, or the meaning of the phrase to "Moses and his heirs." TITLE XI. ADVERSE POSSESSION AGAINST REVEESIONEBS AND eemaindeemen. Topic 1. Where One Enters Under a Conveyance from the Life Tenant.'' § 383. Where one enters under a conveyance purporting to transfer the life estate only: If the conveyance by the life 81 The writer saw the opinion of letter from the justice) shows that Mr. Justice Vickers in GoUaday v. the latter regarded the complainants Knock after it had been filed and as taking as a class of persons who while the case was pending on a would in a certain event receive the petition for rehearing. He wrote estate. There would seem, therefore, to the learned justice raising the to have been no intention to make point that under the decision in any decision counter to North v. North V. Graham the contingent re- Graham, or to hold that the eom- mainder descended from Moses to mon law method of tracing descent William and from William to the would be used where a contingent complainants and that the warranty remainder passed by descent, while of William did not work any estop- a different method of tracing de- pel because the doctrine of lineal scent would be used where a warranty was not in force. The reversion or vested remainder writer's letter of July 8, 1908, to descended. Mr. Justice Vickers (in reply to a ss Ante, §158; post, §577. Kales rut. Int. — 27 ^.yj 384] PUTUEE INTERESTS [Ch. XV tenant purports to convey only the life estate, there is of course no adverse possession against any one, much less against the remainderman,^^ prior to the death of the original life tenant.?' Even upon the death of the life tenant the inference might well be that the holding over was in conscious subordination to the true owner and therefore not adverse until some act or expres- sion of intention indicated the contrary and that possession as of right was claimed.** § 384. Where one enters tinder a conveyance by the life tenant purporting to transfer the fee: If the conveyance is tortious — by fine, feoffment or recovery — a ground of forfeiture arises by operation. of law; but under Taylor v. Horde ^^. no forfeiture of the life estate actually occurs until the one entitled to enter elects to declare it in some appropriate manner. Until, therefore, the forfeiture is complete, the possession of the one entering under the tortious conveyance is not adverse to the remainderman.®" The moment, however, that the original life tenant dies, the possession of the tortious transferee becomes 88 For the sake of simplicity, whenever vested remainders are re- ferred to, reversions are also in- cluded. 87 See Eohn v. Harris, 130 111. 525; Chicago, etc., Ey. Co. v. Vaughn, 206 111. 234; Blair v. John- son, 215 111. 552; Meaeham v. Bunt- ing, 156 111. 586, 594 (possession of original life tenant not adverse). 88 See Bond v. O'Gara, 177 Mass. 139, where a licensee in possession after the termination of the license by the conveyance 6t the land by the licensor continued in possession and it was held that possession was still in conscious subordination to the right of the owner and not adverse. 89 1 Burr. 60. »o Jackson v. Mancius, 2 Wend. (N. Y.) 357 (held that the life tenant had not made a feoffment and therefore no forfeiture of the life estate occurred; but the court vfent on to say that i if such a feoff- ment were made and a forfeiture occurred "yet the reversioner is not bound to enter until the natural termination of the life estate, as the law does not require him to look after the estate, the presmnp- tion being that the tenant in pos- session holds by such a conveyance as the tenant for life had a right' to give"); Wallingford v. Hear!, 15 Mass. 471: Parker, C. J., said: "If tenant for life acknowledge a fine for a longer time than for the life of the tenant for life, the fine may be good; but it is a for- feiture of the estate, and he in re- version or remainder may enter. Yet he is not obliged so to do, for he may wait the termination of the estate for life, and has five years after that (Shop., ''Touch." 14; Jenk., -"Cent." 254)." See also Stevens v. Winship, 1 Pick. (Mass.) 317; Miller v. Ewing, 6 Gush. (Mass.) 34, 41. 418 Ch. XV] REVERSIONS AND REMAINDERS [§384 adverse to the remainderman.^ i Possession under a tortious conveyance rebuts any inference that the possessor was holding over in conscious subordination to the remainderman. Now suppose the life tenant has conveyed' in fee by deed, or by bargain and sale, so that the conveyance has no tortious opera- tion. Such a conveyance transfers only what the grantor has — namely, the life estate. It has been intimated that such a con- veyance might be a cause of forfeiture.^^ If, however, there is no forfeiture of the life estate, the grantee of the life tenant becomes the holder of a life estate pw auter vie and his possession cannot be adverse to the remaindei-man during the life of the original life tenant.®* One English case at least has gone so far as to determine that the holding over after the death of the original life tenant by the one entering under a convey- ance in fee from the life tenant did not become by that fact alone adverse to the remainderman.^f This must proceed ^upon the ground that the transferee of the life tenant w«ts in the same position as if he had obtained a conveyance expressly trans- ferring only a life estate, and therefore must be regarded prima facie as holding over in conscious subordination to the remainder- si Doe V. Gregory, 2 A. & E. 14 adverse."); Meaeham v. Bunting, (where the husband entered upon 156 111. 586, 594. an estate by the marital rig^it in "3 Mixter v. Woodcock, 154 Mass. lands of which his wife was the own- 535 ; Central Land Co. v. Laidley, er for life, and then he and his 32 W. Va. 134; Higgins v. Crosby, wife levied a fine in fee to them- 40 111. 260; Orthwein v. Thomas, 127 111. 554, 564, 568-570; Mettler 62 Mixter v. Woodcock, 154 Mass. v. Miller, 129 111. 630; Peterson «. 535 ("if the mortgages executed Jackson, 196 IlL 40; TuTner v. by her [the life tenant] may be re- Hause, 199 111. 464; C. P. & St. L. garded as acts of disseisin, so that E. Co. v. Vaughn, 206 III. 234; the reversioner could have entered, Bechdoldt v. Beohdoldt, 217 111. 537 ; he was not obliged to do so, but Weigel v. Green, 218 111. 227; eould wait until his right of entry Schroeder v. Bozarth, 224 111. 810; accrued upon her death"); Eigg Willhite r. Berry, 232 111. 331; ,Mc- V. Cook, 4 Gihn. (111.) 336 ("And FaU v. Kirkpatrick, 236 III. 281; where the possession hiis been con- Bartlow v. C. B. & Q. il. Co., 243 sifltent with, or in submission to 111. 332; Cassem v. Prindle, 258 111. the title of the real owner, nothing 11 (life estate passed by condem- bnt a clear, unequivocal and notor- nation) ; Allison v. White, 285 111. ious disclaimer and disavowal of the 311. title of suchi owner, will render the »* Doe v. Hull, 2 Dowl. & E. 38. possession, however long continued, 419 § 385] FUTURE INTERESTS [Ch. XV man. It is believed, however, that in American jurisdictions today the holding over would be regarded as prima facie adverse from the date of the death of the original life tenant.'^ Topic 2. When the Life Tena'nt Is Disseised and the Remainder Is Vested. § 385. Results reached by the cases generally: It is clear that the life tenant, after the statutory period of adverse posses- sion, is barred from again securing possession. The difiQcult question is: what is the effect of the running of the statute against the life estate upon the reversion or vested remainder? It would have been a very simple answer to say that the life estate had been extinguished and that the vested remainderman had an immediate right to possession, so that the continued possession of A would be adverse to him. Indeed, it might have been urged that this followed from the fact that the running of the statute operated to extinguish the life estate, and that a vested remainder is by its very definition one which stands ready throughout its continuance to take effect in possession whenever and however the preceding freehold estate determines."" Such a view would have the advantage to the adverse claimant of caus- ing the statute to begin to run against the remainderman as soon as it had run against the life tenant. It would have had the disadvantage to him that at once upon the running of the statute against the life tenant the remainderman would be entitled to possession. The courts seem very clearly to have rejected this view and to have proceeded upon the supposition that when the statute has run against the life tenant, the adverse holder obtains an estate of some sort which is good against the remainderman as long as the life estate, which is extinguished by the adverse pos- session, would have been good against the remainderman — ^that is to say, in the usual case, during the life of the original life tenant. Accordingly, it has been regularly held that no right to 95 In Safford v. Stubbs, 117 111. of any instrument creating a life 389, such, was the holding where the estate in the grantor, grantee in fee from the life tenant se Gray 's Eule against Perpetui- had no actual, or constructive notice ties, § 101. 420 Ch. XV] REVERSIONS AND REMAINDERS [§ 386 possession arises on the part of the remainderman until the actual death df the original tenant for life, even though the remainder be vested and though the statute has run against the original life tenant. In the cases, therefore, where the rever- sioner or vested remainderman has sued for possession after the life estate has been barred, but before the death of the original life tenant, the action has failed.^^ So where the. reversioner or vested remainderman sues for possession after the death of the original tenant for life, the possession of the disseisor of the life tenant does not become adverse to the reversioner or vested remainderman until the actual dea;th of the original life tenant. Hence, the disseisor may still be ousted by the remainderman, though the statute has first run against the life tenant and then the possession of the disseisor has continued for the statutory period during the life of the original life tenant.®* § 386. What estate does the disseisor of the life tenant have after the statute has run against the life tenant only? If we said that the life estate passed to the disseisor and he became a tenant for the life of the original life tenant, we should be met with the general proposition that the statute of limitations operates to extinguish the title of him who is barred and to raise a new and original title in favor of the disseisor. If we said that the disseisor obtains a new and original title in fee simple, good against all the world during the life of the tenant for life, but subject to a right to enter on the part of the remainderman upon the death of the original life tenant, we should run into the difS.culty that the relation between the remainderman and the disseisor had been so changed as- to prejudice the rights of the remainderman. For instance, what would have been waste on the part of a life tenant would not be waste when committed by the holder of a fee, the remainderman being as to him merely one entitled to re-enter ,upon a future contingency, or the holder "Shortall v. Hinckley, 31 111 219; Jacobs v. Eioe, 33 111. 370. Gregg V. Tesson, 1 Black (66 IT S.) 150; Higgins v. Crosby, 40 111 260; Kibble v. Williams, 58 111. 30 Moore''!). Luce, 29 Pa. St. 260, Baker v. Oakwood, 123 N. Y. 16; Thompson Js Heirs v. Green, 4 Ohio St. 216. 98 Dawson v. Edwards, 189 111. 60; Wells v. Prince, 9 Mass. 508; Jackson v. Schoonmaker, 4 Johns. (N. Y.) 390; Tilson v. Thompson, 10 Pick (Mass.) 359; Poster v. Marshall, 22 N. H. 491. 421 § 387] PUTUEE INTERESTS [Ch. XV of what is in appearance at least a possibility of reverter.** On the whole, perhaps the least objectionable position is that the disseisor of the life tenant becomes the holder of a new and original estate for the life of the original tenant for life. § 387. Illinois cases apparently contra— (1) Where the life estate is that of a husband by the marital right in his wife's fee — Before the first Married Woman's separate property act: Before the first Married Woman's Act of 1861, which gaVe to married women their separate property as if they were femes sole, the husband of every woman with a fee simple had an estate for the joint lives of himself and his wife, known as the estate by the marital right. If the husband conveyed this estate, the grantee had an estate fo'r life pur outer vie — namely, for the joint lives of the husband and wife. In that case clearly the wife must have become an actual reversioner. The wife or her heirs could have no right to possession until the death of the husband or wife. No possession could, therefore, become adverse to the wife or her heirs till the death of her husband, or till her death. 1 Suppose, however, that the husband did not convey. Suppose a disseisor entered and held possession for the statutory period and for such additional period after as the statute pro- vided in the case of the disability of coverture — ^namely, accord- ing to the Statute of James I, the period of ten years after the coverture terminated. Did he disseise both the husband and wife so that the interests of both were barred and the fee acquired by the disseisor good against the world? Or did the disseisor bar only the husband's interest by the marital right so that there was no adverse possession against the wife or her heirs until the death of the husband or the wife ? On this question courts and judges have differed. The Massachusetts Supreme Court at an early date held that it was only by reason of the peculiar legal relation of husband and wife that the actual seisin of the wife's fee was in the hus- band during the joint lives of husband and wife, thus giving the husband what was technically an estate for the joint lives of husband and wife ; that in fact the unity of husband and wife »9 Ohio Oil Company v. Daughe- i Higgins v. Crosby, 40 111. 260 ; tee, 240 111. 361; Dees v. Cheuv- Mettler v. Miller, 129 111. 630. ronts, 240 111. 486; 4 111. Law Bev. 429. 422 Ch. XV] REVERSIONS AND REMAINDERS [ § 388 caused both together, and the husband as the representative of both, to have in their legal unity the entire fee and the seisin in fee; that while the husband had actual seisin by the marital right, there was in fact no. separation of estates, but that the fee was in possession of the husbaiid and wife. Hence,; when the statute began to run against the husband, it ran against the wife's interest as well, and upon the completion of the twenty years required by the statute and the ten years in addition after the coverture was ended, the wife's interest was barred.^ This was consistent with the statute and its assumption that during coverture there might be adverse possession against a wife who had a fee and that she was permitted the period of ten years after the coverture ended in which to bring her action. Other courts, however (including our Supreme Court), have treated the wife as having an actual reversion in fee, subject to the husband's estate for life by the marital right, so that there could be no adverse possession whatever against the wife during coverture, and; therefore, upon the termination of the coverture the statute would first begin to run against the wife or the wife's heirs and they would be entitled^ to the full period of twenty years, although that might mean that the wife or her heirs were entitled to the running of the full period of the statute after the husband had during his life been disseised for forty yea.rs.3 In Connecticut 'the opinions of four judges were equally divided as to which view was correct.* § 388. Effect of the Illinois Married Woman's separate property act of 1861— Oastner v. Walrod: s The first Illinois Married Woman's Act of 1861 operated to prevent the creation of any estate by the marital right in a husband for the joint lives of the husband and wife in the wife's fee. This act, however, had no general retroactive effect. A husband 's vested est^ate by the marital right which existed at the date when the act took effecjt continued. If, therefore, the statute of limitations had run 2Melvin v. Locks & Canals, 16 Gregg «. Tesson, 1 Black (66 U.S.) Pick. (Mass.) 161; Kittridge v. 150; Kibble v. Williams,, 58 111. Locks & Canals, 17 Pick. (Mass.) 30, semble; Thompson's Heirs v. - 246. Green, 4 Ohio St. 216, 8 Foster v. Marshall, 22 N. , H. 4 Watson v. Watson, 10 Conn. 77. 491; Shortall v. Hinckley, 31 111. 5 83 111.171. 219; Jacobs v. Bice, 33 111. 370; 423 § 388] ^ FUTURE INTERESTS [Ch. XV against the husband's life estate by the marital right before the act of 1861 and then the possession of the disseisor had continued after the act of 1861 for the statutory period while the husband and wife still lived, it might with great force have been urged that, in accordance with the rulings already made by our Su- preme Court,* the adverse holder had secured an estate good against all the world during the joint lives of the husband and wife, and that there could, according to the general rule, be no adverse possession against the wife or her heirs until the death of the husband or the wife, and then the full statutory period must run against the reversion. Our Supreme Court, however, did not adopt this view. Instead it gave a mysterious effect to the Married Woman's Act of 1861 to reach the result adopted by the Massachusetts court prior to the time of any married women's legislation, that the disseisin of the husband was the disseisin of the husband and wife, and the statute began to run against both at the same time. The first step toward this result was taken in Castner v. Wal- rod. In that case Hall agreed to convey to Haskins in 1849. Haskins' son assigned the bond for the deed fraudulently in the name of his father to Walrod. Haskins, the father, died in 1850. Walrod presented the bond to Hall, secured a deed and took possession. In 1869 complainants, who were the children of Haskins, filed a bill to obtain a conveyance pursuant to the bond. They were really attempting to enforce a constructive trust against Walrod who had the legal title. It was held that the complainants were barred by laches. Their claim was purely equitable and the doctrine of laches in equity and not the statute of limitations applied. It was insisted on. behalf of three of the complainants that when Walrod took possession of the land they were married women, and still were, and that this fact placed them under a disability which the statute of limitations recog- nized and which equity would also recognize. That was met by the ruling of the court that since the Married Woman's Act of 1861 there was no longer any disability of coverture under the limitation act '^ and equity would not recognize any such excuse 8 Ante, § 385. her property was concerned, the con- 7 The court said (p. 178): "If, elusion is irresistible that the sav- then, under the act of 1861, a feme ing clause in favor of married wom- covert became unmarried, so far as en, in the limitation law, was abro- 424 Ch.^XV] reversions and bemaindebs [§ 388 for delay. While not so precisely stated, the court recognized another argument on the part of the complainants who were married when Walrod took possession. It was this: The equitable interests in the fees of the married women were merely reversionary, since their hushands had the present interest in possession by the marital right which accrued before 1861 and was not disturbed bj'^ that act. The husbands were still living. Hence, it was contended the wives could not be guilty of laches since they had no power to act. There are a number of sufficient answers to this position which the court did not formulate. For instance, the wife's interest was only an equity to secure a legal title. The husband's estate by the marital right did not. attach until the wife got in the legal title and became legally seized in fee. Hence, the husband and wife together had a right to sue for conveyance. The delay, therefore, was the delay of both and dated from the year 1850. Another answer might have been that since the husband and wife did not get in the legal title for the wife before 1861 the right of action to secure it became by the act of 1861 the wife's separate property and she was barred by laches from asserting it by reason of her delay since 1861, especially in view of the fact that she knew of all the circumstances since the year 1850. Another answer to the married women's position was that it was self -destructive. If the husbands had an estate for life by the maritaj right it still existed. The husbands were barred by laches, but the wives' right to possession had not yet accrued, so that the complainants ' case would fail. The court, however, passed by these answers to the position of the married women and adopted another. It assumed for the sake of argument that the husband had a life estate by the marital right and that the wife's interest was reversionary. It then proceeded to hold that since the hus- band's estate by the marital right was barred before 1861 by the running of the statute, the continued possession of the disseisor after the act of 1861 for the statutory period barred the wife.* gated, as the two acts are so ut- Ute of limitations was concerned : terly inconsistent that they can not Enos v. Buckley, 94 111. 458, 462; stand together." • Miller v. Pence, 132 111. 149, 158. Subsequent decisions have referred « The court said (p. 180): "The to Castner v. Walrod as holding that possession of the defendant com- after 1861 the disability of cover- menced as early as 1850, and the ture was removed, so far as the stat-, statute of limitations then began to 425 § 388] FUTURE INTBEESTS [Ch. XV The court thus in effect held that where a husband had a life estate by the marital right in the wife's fee before the Married "Woman's Act, and the husband's life estate was terminated by adverse possession before that statute, the Married Woman's Act operated to give the wife an immediate right to possession of her separate estate as if she were a feme sole, and the con- tinued possession of the disseisor became adverse to the wife and after the statutory period had run was barred, though she and her husband were still alive.^ In short, while the act of 1861 had no retroactive effect to divest what was already vested in the husband, yet when the husband's estate for life by the mari- tal right had already been divested by the statute of limitations before the act of 1861, that act became effective to give the wife a right to possession at once. This means that the act of 1861 was given a retroactive effect so far as the rights of the adverse holder (as one who had acquired an estate good against all the world during the joint lives of the husband and wife) were concerned. The estate for the joint lives of the husband and wife, which the disseisor would, by the operation of the Usual rule already noted, secure by the operation of the statute, caine to an end by the act of 1861, and the wife had an immediate right to possession. To this extent the act of 1861 operated retroactively. Whether this proposition of Castner v. Walrod run against the life 'estate in the mitted the defendant to remain upon husbands of the complainants. This the land, undisturbed, for more than life estate was, therefore, barred seven years after the passage of the prior to the passage of the act of act of 1861." 1861, and when barred, it was, for s> Such is the statement of the all practical purposes, gone, and the holding in Castner v. Walrod, which husbands, in effect, no longer had was made by the court in Mettler v. any interest in the premises. Miller, 129 111. 630, 643, 644, where * * * When, therefore, the life the court said:' "In Castner v. Wal- estate which the husban'ds had ac- rod it was held, that when the es- quired by virtue of the marriage, tate which the husband had acquired was terminated by operation of the by virtue of the marriage, was ter- statute of limitations, and the act minated by operation of the statute of 1861 removed the disability of of limitations, and the act of 1861 coverture of the complainants, they removed the disability of coverture, were then bound to bring their ac- the wife was bound to bring action tion within seven years, or their within seven years, or her right and right to title would be barred. This title would be barred." complainants failed to do, but per- 426 Ch. XV] REVERSIONS AND REMAINDERS [§ 389 is right or wrong is perhaps of little if any importance today so long as its very limited application is observed. It only causes difficulty when counsel attempt to generalize from it that any possession will become adverse to any remainderman or rever- sioner as soon as any life estate is extinguished by the running of the statute — a proposition which, as already noticed, might have been the result of the authorities, but as a matter of fact has not been adopted by the courts.^" § 389. Enos v. Buckley: " The dictum of this case goes the full length of holding that after the act of 1861 a disseisor of a husband having an estate by the marital right in the wife 's fee is a disseisor of the wife also, and, when the statutory period of adverse possession has run, the interests of both are barred. Thus, in effect, the act of 1861 is given a mysterious operation to bring the court to the rule of the Massachusetts eases which held that, prior to any married women's legislation, a disseisin of the husband who had an estate by the marital right was at the same time a disseisin of the wife.^* In Enos v. Biockley, the husband and wife who had a record title bi'ought ejectment in 1878. The defense was adverse pos- session for the statutory period from 1865 to 1872. When the adverse possession began in 1865, t^e wife who had the fee was married to her present husband, who then had an estate by the marital right in the wife's fee which arose prior to the act of 1861 and was not disturbed by that act. A judgment for the defendant was very properly affirmed. The husband's estate for life was clearly barred while the wife's reversion was not, but the husband and wife being still alive the wife had no right to possession when the ejectment was brought. The court, how- ever, appears to hold that since the act of 186l the disability of married women under the limitations act had been entirely removed, and that this had the effect of causing the statute to run against a married woman as if she were a feme sole and regardless of whether the property was acquired by the married woman while covert before or since the act of 1861. i* 19 Ante, § 385. cision in the case of Castner et al. v. 11 94 111. 458. ' Walrod, that since the passage of ^^Ante, §387. the Married Woman's Act of 1861, 13 The court said (page 462): the saving clause in favor of married "We regard, then, under the de- women in this limitation law has no 427 § 389] FUTURE INTERESTS [CH. XV So long as Eiiios v. Biickley is recognized as applying only where a husband, who is seized of an estate by the marital right in a wife 's fee as at common law, is dispossessed and the adverse holding continues for the statutory period after the act of 1861, it is a matter of small importance whether it is sound or not. The danger of having the case in the supreme court reports is that counsel always, apd even the court itself sometimes,^*' deduces from it the general proposition that any adverse pos- session against any life tenant is at once an adverse possession against any reversioner or vested remainderman^a proposition which it may safely be said no court has recognized and which all decisions, particularly those already noted,' ^ holding that no adverse possession begins to run against a reversioner or re- mainderman until the actual death of the original tenant for life, no matter how long the original life tenant may have been disseised, repudiate. Furthermore, it should not be overlooked that if any such general rule were announced and applied, it would be void under the Fourteenth Amendment of the Federal Constitution as a deprivation of the remainderman's property without due process of law, and the decision of a state Supreme Court should be reversed by the United States Supreme Court on that ground.'® A remainderman who has no right to sue for force, and that the statute since that diced by the non-assertion of a right time applies against a married that does not exist."); Mettler ■«. woman equally as ag;ainst an un- Miller, 129 111. 630, 642, 643 ("All married woman, without regard to statutes of limitation are based on whether the property of the married the theory of laches, and no laches woman be strictly in legal under- can be imputed to one who has no standing, before the passage of the remedy or right of action, and to act, her separate property or not, hold the bar of the statute could and without regard to the time of run against the title of a person so its acquisition, whether since or be- circumstanced, would be subversive fore the passage of the act, whether of justice, and would be to deprive during or before coverture. ' ' such person of his estate mtliout his 14 Nelson v. Davidson, 160 111. day in court."). 254 ; post, § 391 ; Field v. Peeples, It should be observed also that 180 111. 376; post, § 390. the Illinois seven-year statute of lim- 15 Ante, § 385. itations as to vacant lands was first 18 Higgins V. Crosby, 40 111. 260, held unconstitutional as a taking ("It would be unprecedented to hold of property without due process of that a right of entry was barred law because there was no sufficient where such a right had never ac- substitute in the act for adverse crued. A party cannot be preju- possession: Harding v. Butts, 18 111. 428 Ch. XV] REVERSIONS AND REMAINDERS " [§390 possession till the death of the original tenant for life cannot constitutionally be barred by any possession of a disseisor during the life of the original tenant for life. The fact is, however, that in the dicta of Nelson v. Davidson ^'^ we find the court using Enos V. Buckley for the general proposition that when the statute begins to run against any life tenant it begins to run against the remainderman. In Field v. Peeples,^^ our Supreme Court seems to use Enos v. Buckley for the proposition that when the statute has run against any life tenant it also runs against any reversioner or remainderman under any. disability such as infancy, so that the remainderman must within the addi- tional time allowed by the statute sue for possession although the original life tenant still lives. It is important, therefore, that these two cases be carefully analyzed, and the dicta of the court, which are derived from a misconception of Enos v. Buck- ley and which canfaot be supported, be separated as far as pos- sible from the actual decision in each ease. § 390. (2) Where the disseisor of the life tenant enters under a void guardian's sale of the reversioner's interest — Nel- son V. Davidson : i^ In this case the mother died in 1845, leav- ing her husband tenant for life by curtesy, and Mary her heir at law, the reversioner. In 1852, the father as guardian for Mary purported to sell at guardian's sale the minor's interest. In 1892 the father died. Mary brought ejectment in 1896. The defense was a regular chain of title from the purchaser at the guardian's sale and possession, payment of taxes under color of title during the ten years immediately preceding 1892. Judg- ment for the defendant was affirmed. The court first held that the objections to the guardian's sale were trivial and not well founded. That disposed of the case, for the guardian's sale transferred the remainder and the life estate had been barred by the statute of limitations as well as terminated by the death of the life tenant. The 6ourt, however, went on to deal with the 503. The act was only held valid as Marsh, 19 111. 376; Dunlap v. Tay- a limitation act by reading into it lor, 23 111. 387 ; MeCagg v. Heaeock, the requirement that the claimant, 34 111. 476; 42 111. 153. after seven years' payment of taxes i7 160 111. 254; post, § 390. under color of title, must enter and is igo 111. 376; post, § 391. take possession in order to complete is 160 111. 254. the bar of the statute: Newland v. 429 § 390] FUTURE INTERESTS [Ch. XV ease on the supposition that the guardian's sale was void for irregularity and reached the conclusion that even in that event the defendant was entitled to judgment. The problem of the* case is : how can this dictum be supported ? Can it be sustained on the ground that the void guardian's sale was made valid by the laches, estoppel and affirmance of the minor ? 20 The guardian's sale if void was so, not on the ground that the minor's interest was contingent and therefore not trans- ferable, but because of 'irregularities in the proceedings to sell an interest, which, however, was alienable by guardian's sale. It is true also that the reversioner came of age in 1863, thirty years, before bringing suit. It must be very doubtful, however, if the reversioner could have filed any bill to remove the guar- dian's deed as a cloud, for she was not in possession and the property was not vacant. Nor was there any evidence that the minor ever received any part of the purchase price paid at the guardian 's sale after she came of age. The case presented, there- fore, is nbt, it is submitted, sufficient to bar the complainants from attacking the guardian's sale if it were actually void.21 What the court appeared to go upon was a generalization from the dictum of Enos v. Buckley — ^namely, that an adverse posses- sion against any life tenant is at the same time an adverse pos- session against the reversioner. Such a generalization cannot be- supported. It cannot properly be extracted from Enos v. BuckJ,ey, for that case dealt only with the effect since 1861 of an adverse possession against a husband holding an estate by the marital right in the fee of his wife to bar the right of the wife. It was merely a reversion to the Massachusetts common law rule that a disseisin of the husband who had only an estate by the marital right in his wife's fee was at the same time a 20 See Tracy v. Roberts, 88 Me. was void for irregularity. But in 310; Price v. Winter, 15 Fla. 66, that ease the purchase money had 121; Penn and Wife 1;. Heisey, 19 been paid to the administrator and 111. 295 ; Walker v. Mulvean, 76 111. used for the payment of debts. The 18, 20; Byars v. Spencer, 101 111. reversioner made no offer to repay 429, 436. , it and he could have filed a bill to 21 In Woodstock Iron Co. v. Full- remove the conveyance as a cloud enwider, 87 Ala. 584, the reversioner during the continuance of the life was barred by laches, estoppel and estate. Under these circumstances affirmance from attacking an admin- he allowed twenty years to elapse istrator '3 sale of his interest which before taking action. 430 Ch. XV] REVERSIONS AND REMAINDERS [§391 disseisin of the wife. In Nelson v. Davidson, when the adverse possession began,' the life tenaiit was a widower who had an actual estate for life by curtesy. The reversioner was the heir of the wife. Under these circumstances, the dictum of Enos v. Buckley could have no application. The dictum of Nelson v. Davidson ruiis counter to the general rule which must be re- garded as established in this state, not only by express decision ^^ but also by statute,^^ that an adverse possession against a life tenant not only does not become adverse to the remainderman when the statute has run against the life estate, but does not become adverse to the reversioner until the actual termination of the life or lives which measure the duration of the original estate for life. The dictum of Nelson v. Davidson, in fact, ap- proves a rule which if actually applied would amount to a taking of the reversioner's property without due process of law. § 391. Field v. Peeples: ^^ The Supreme Court in this case, appears to approve the proposition attributed by it to Enos v. Buckley and Nelson v. Davidson, that when adverse possession commences against any life tenant it immediately begins to run against any remainderman undei^ any disability such as infancy, so that when the statute has run against the life tenant before the disability is removed, the remainderman must sue within the additional time allowed by the statute after the disability is removed or be entirely barred. By a will which took effect in 1871, Ellen became life tenant with a vested remainder in her children who were then born. In 1894, while the life tenant was still alive, but after she had conveyed in 1893 all her interest to her children, the children brought ejectment against the de- fendant in possession. A judgment was entered for the plaintiffs, the two children, Clarence and Cornelia. In the Supreme Court 22 Ante, 1 385. intermediate or precedent estate 23 Section 3, subsection third of would have expired by its own limi- the Limitation Act of 1872 (R. S. tation, notwithstanding any forfeit- 1874, chapter 83, section 3, subsec- ure thereof for which he might have tion third): "When there is such entereS at an earlier time. " an intermediate estate, and in all This section has been referred to other cases when the party claims and declared to govern the other by force of any remainder or rever- sections of the Limitation Act. See sion, his right, so far as it is affected Turner v. Hause, 199 111. 464; Wei- by the limitation herein prescribed, gel v. Green, 218 111. 227. shall be deemed to accrue when the 24 iso 111. 376. 431 §391] FUTURE INTERESTS [Ch. XV the defendants successfully contended that all the interest of Clarence had passed to them by a guardian 's sale of 1873. Hence, the judgment was reversed. That really disposed of the case. But the court, in order apparently to settle further questions, intimated that the other child, Cornelia, not having had her interest sold by the guardian would be "entitled to judgment for her share. It was this suggestion of the court that the defendants sought to combat. They relied upon the fact that they had had adverse possession against the life tenant so that the life estate was barred. As a result of this they claimed a right to possession good as against all the world during the life of the original life tenant who was still living. There was evidence of possession and payment of taxes frpm 1883 to 1894 and the court seems to have assumed that there was also color of title. Nevertheless, the defendants failed in this defense because no issue was pre- sented by the pleadings which would entitle them to claim an estate for the life of the original life tenant by the statute of limitations.^" The defendant no doubt claimed the fee under the 25 The court said (p. 383) : "The fact that the statute of limitations might have been successfully inter- posed as a defense had the action been brought by Ellen Pool Peeples, has no special bearing on this case. Here, appellees are claiming to re- cover as owners of the fee, and it is not claimed, as we understand the argument, that they are barred by the statute of limitations." On the rehearing, the court said (p. 389) : ' ' The right of possession, under color of title to the life estate is not in- volved in the casfc Plaintiffs below, by their declaration, claimed the premises in fee, and the defendant, both by virtue of the guardian's sale and deed and possession under that deed as claim and color of title and payment of taxes for more than seven years, also claimed the title in fee simple. He does not claim color of title to the life estate, and coun- sel are therefore mistaken in the assertion that the opinion heretofore filed overrules cases cited,^ to the ef- fect that when the bar of the stat- ute is complete the holder of the title by limitation may assert it against all others; that his right of posses- sion is as perfect as though he were invested with a paramount title, and that his title is as available for at- tack as defense. The petition and argument in support of it, assume a state of case not shown by this record. If appellant had set up and shown color of title to the life estate, and relied upon that title under the statute of limitations, then the posi- tion here contended for would have been tenable. In that case the re- maindermen would undoubtedly have been postponed in their right of ac- tion until after the death of the life tenant, but under the issues in this ease they were bound to bring their action within the time limited by the statute after they became of age, and if they had delayed their action until the death of their mother, and 432 Ch. XV] REVERSIONS AND REMAINDERS [§391 statute of limitations. This would-be an afSfirmative defense. If the defendant were successful in maintaining it, the plaintiff -^would have been adjudicated out of the fee. Hence, the issue raised was not whether the defendant had an estate for the life of the original life tenant by the statute, but whether the fee of the remainderman had been barred by the statute, so that the defendant would have the fee as against the remainderman. Whether the court was right or wrong in so analysing the precise issue is not material to the present discussion. That is the posi- tion which it took and that disposed of the case. As" a parting shot, however, to the defendants on the rehearing, the court called attention to the decisions in Enos v. Buckley and Nelson v. Davidson, and said that the court in those cases held, "that possession for the statutory period, under claim of title, to an estate in fee, sufficient to constitute color of title, with payment of taxes for the same period, would bar the estate in remainder, notwithstanding the existence of the outstanding life estate, where the remainderman claiming title was under no disability." The court then concludes that in view of such holdings the plaintiffs were bound to bring their action within two years after they came of age, and therefore could not wait until the death of the original life tfenant.^^ This is a plain intimation that when a remainderman is under any disability, whether of coverture or infancy, the statute of limitations begins to run against him as soon as it commences to run against the life tenant, but that the remainderman under a disability of infancy has the additional time after that disability is removed within- which to sue, and must sue within that time or be forever barred. This dictum of the court again overlooks the fact that when a remainderman is under no disability, the statute does not begin to run against him until the original life tenant actually dies, and the fact that the reversioner is finder a disability does not put him in any worse position, or any better for that matter. The dictum of the court in Field v. Peeples, like the dictum of that event had oocurEed more than their action within two year^ after two years after they became of age, they became of age, and, at the they would have been barred. ' ' same time, that they had no right 26 The court said (p. 390): to do so until after death of the, "* * * it cannot be held that life tenant." plaintiffs below were bound to bring Kales Fut. Int. — 28 433 § 392] FUTURE INTERESTS [Ch;. XV the court in Nelson v. Davidson, fails to observe that the dictum of Enos V. Bimhley applied only where a husband holding by the martial right in his wife's fee was disseised after the act of 1861. The dictum of Field v. Peeples, like that of Nelson v. Davidson, runs counter to the many cases already noted,^^ which support the general rule that reversioners and remaindermen have no right to possession until the actual death of a life tenant who has been disseised, and whose estate for life has been barred by the statute. § 392. Miscellaneous problems — (1) Suppose the life estate is released to the vested remainderman, or both the life tenant and the vested remainderman convey to a third person: Sup- pose the vested remainderman is using the release or conveyance as the basis of a merger to enable him to secure possession from the adverse holder before the actual death of the life tenant. He will, of course, succeed if the adverse possession has not yet barred the life tenant. If, however, the statute has run against the life' tenant when the conveyance relied on to effect the merger occurs, there cannot ibe a merger which will prejudice the adverse holder whosCi possession is protected until the actual death of the life tenant.^® If, however, when the conveyance which is relied upon to affect a merger is executed, the statute has not run against the life tenant but subsequently it does so before the remainderman sues for possession, will the adverse holder's possession be protected for the life of the original life tenant? This has been answered in the affirmative ^" on the ground that the merger will not be permitted to prejudice the situation of the adverse holder after the possessory title has become good against the life tenant. Perhaps this might be expressed by saying that 27 Ante, § 385. the original life tenant was not in- 28 Moore v. Luee, 29 Pa. St. 260 ; volved. The moment it is assumed, Baker v. Oakwood, 123 N. Y. 16; under the issue made, that the life, Jacobs V. Eiee, 33 111. 370 ; Gregg estate might have continued, the V. Tesson, 1 Black (U. S.) 150. court could with propriety say that The remarks of the court in Field the conveyance by the life tenant to V. Peeples, 180 111. 376, are not con- the remainderman would give the tra, because the court there held remainderman an immediate right to that whether the life tenant was possession by the doctrine of merger, barred by the statute so as to give 29 Shortall v. Hinckley, 31 111. the adverse holder an estate good 219; Kibbie v. Williams, 58 111. 30,- against the world during the life of semble. 434 Ch.XV] reversions and remaindkes [§392 w]i6ii the adverse possession becomes complete to bar the life tenant, the adverse holder's title relates back to the beginning of the adverse possession and, therefore, as to him no merger has ever occurred. Suppose now the disseisor is using the attempted merger to contend that adverse possession began against the remainderman upon the termination of the life estate by merger and therefore the remainder is barred by the statute, although the statutory period has not run since the death of the original life tenant. Clearly after the statute has run against the life estate the origi- nal life tenant's interest is gone and there can be no merger by his release or conveyance at that time.*** If the release or con- veyance by the life tenant occurred before any adverse possession began, clearly a merger occurs and when the adverse possession does commence there is no reversioner or remainderman, and the statute runs against the entire fee at once.** The difficult case "is where the release or conVeyance, which is the basis for the merger, occurs after the statute has begun to run against the life tenant, but before the life estate is barred, and then the statute does run completely against the life tenant and would have run against the remainderman if it had started to run against the remainder at the time of the alleged merger. It is submitted that a merger which could not be used against the adverse holder where the remainderman was seeking possession could not be used for him. If the disseisor 's possession bars the life estate by relation back so as to prevent any merger, that will equally prevent any adverse possession against, the remain- derman from the time of the alleged merger. The result is that when an alleged merger occurs after a disseisin of the life tenant, the reversioner or remainderman can sue at once for possession, and hence the possession becomes adverse to the remainderman, but when the life estate is barred, then the adverse possession against the remainderman ceases and does not begin again until the death of the life tenant, and then must run for the entire statutory period. However incongruous this may seem, it would, appear to be the logical and necessary result of the taking effect 30 Talcott V. Draper, 61 111. 56 ; 3i Whitaker v. Whitaker, 157 Mo. Peadro v. Carriker, 168 111. 570, 342; BoyMn v. Ancrum, 28 8. C. 580 {semlU). 486. 435 § 393] FUTURE INTERESTS [Ch. XV of a limitation title by relation back fo the time when the adverse possession commenced. § 393. (2) It becomes important in applying the statute of limitations to determine whether a life estate is subject merely to a forfeiture for a breach of condition, or whether it comes to an end by express limitation before the life tenant's death: If a life estate is subject to forfeiture for breach of an express condition subsequent, no forfeiture will occur until the one en- titled to enter for the breach elects to declare the forfeiture, and in an appropriate way completes the forfeiture.^^ No possession can, therefore, become adverse against the remainderman or reversioner until the forfeiture has been perfected. If, on the other hand, a life estate is expressly made terminable upon an event other than the death of the life tenant — as, for instance, ' alienation by the life tenant — and the event happens, the re- mainderman is at once entitled to possession and the possession of a disseisor of the life tenant at once becomes adverse to the remainderman.^* § 394. (3) Suppose the remainderman is also interested in the life estate: Suppose, for instance, a trustee acquires an estate for the life of a wife in trust for the wife and her children during the life of the wife, with a legal remainder to the children of the marriage. Suppose the trustee is disseised and the legal estate for life barred by the running of the statute. Is the usual rule that the statute does not run against the remainderman until the death of the original tenant for life altered by the fact that the -remaindermen are themselves interested in the life estate? Clearly not.** The interests of the children are dif- ferent and separate. In barring their several interests, the statute must be applied to each.*® If, however, the trustee holds the fee and conveys that in breach of trust, there is no question of the statute of limitations in a suit to enforce the trust against the transferee of the land conveyed. The legal title has passed. The only -question is whether the equitable remaindermen are barred by laches from recovering the trust res from one who ^iAnte, §384. 81 On. 359; Graff v. Eankin, 250 33 Barnes v. Gunter, 111 Minn. Fed. 150. 383. •"•^ See also Mara v. Browne, 34 Franks v. Berkner, 67 Ga. 264; [1895] 2 Oi. 69. East Eome Town Co. v. Cothran, 436 Ch. XV] REVERSIONS AND REMAINDERS [§395 takes with notice of the trust. It might well be urged that the vested equitable remainderman or reversioner had a right to sue at once to have the trust estate restored to the trustee to hold upon the trusts designated, and that laches on the part of the remainderman would commence at once upon notice of the breach of trust and the removal of any disability, such as in- fancy. The same might be true even if the equitable remainder were contingent on the remainderman surviving the equitable life tenant. If, however, we add the fact that the equitable remaindermen, whether having a vested or contingent interest, also have a present equitable interest in the equitable life estate, there can be no doubt of their right to sue to have the trust estate which has been transferred in breach of trust turned back to the trustee for the purposes of the trust— and ncTt only for the purposes of the present equitable interests but to serye the future equitable interests as well. In such a case then, the period of laches would commence to run from the knowledge of the breach and the removal of any disability.** Topic 3. Where the Remainder Is Contingent. § 395. The statute cannot begin to run against the re- mainderman till the event happens upon which the remainder is to vest: Where the remainder is subject to a condition precedent tO| its vesting which does not happen till the life tenant's death, there can be no right to possession by the re- mainderman till the event has happened, and no possession can be adverse to the remainderman till then. This is clearly so where one in possession during the life of the original life tenant takes by deed from the life tenant.^'^ It is equally so where the 2^ This is the explaiiation of Me- This case is sometimes erroneously Coy V. Poor, 56 Md. 197, where cited for the proposition that if the forty-nine years elapsed after the remainderman is also interested in breach of trust and the coming of the life estate and has, permitted his age of some of the equitable remain- interests therein to be barred, the dermen, and thirty-six years elapsed statute bars the remainderman. See after the youngest remainderman GrafE v. Eankin, 250 Fed. 150. came of age before suit was brought, 3' McFall v. Kirkpatrick, 236 111. and seven years had elapsed after 281 ; Hill v. Hill, 264 111. 219. the equitable life tenant's death before suit was brought. 437 § 396] FUTURE INTERESTS [Ch. XV life tenant is disseised.** Even where a husband who owns in fee has been disseised and the fee is barred, the statute will not run against the wife's contingent dower interest until the hus- band's death.39 Even though the dictum of Nelson v. DoAtidson were accepted, that adverse possession against any life tenant becomes at once adverse to any remainderman so that both are barred when the statutory period has once run, it has very properly been held that such a rule could have no application to a remainder which was contingent upon an event which was to happen or not only on the death of the life tenant. In such a case there can be no right to possession until the event happens and only then can the possession of the disseisor of the life tenant become adverse to the remainderman.*** § 396. Where the life lenant is barred by the statute will a legal contingent remainder be destroyed? If the effect of the running of the statute against a life estate were to transfer the life estate originally created to the adverse, holder, then, of course, there could be no destruction of any legal contingent remainder by the running of the statute against the life estate. We may, however, assume that when the statute runs against the life tenant, the original life estate is destroyed, or brought to an end. The life tenant no longer has any right of entry or right of action. That such a state of affairs operated to destroy the contingent remainder seems to have been the view of both Pearne and Butler.*^ This conclusion must have rested upon the further fact, not stated, that the reversioner (pending the vest- ing of the contingent remainder) had an immediate right to 38 Graff V. Bankin, 240 Fed. 150. a descent be east as will take away 39 Steele v. Gellatly, 41 111. 39 ; the entry of tenant for life within Whiting V. Nicholl, 46 111. 230; the statute of H. 8 e. 33, and drive Brian v. Melton, 125 111. 647 ; Miller him to his action, then is the eon- V. Pence, 132 111. 149. tingeht remainder gone; because ^o Graff V. Eankin, 250 Fed. 150. there' no longer subsists any right of 41 Fearne, Cont. Rem. 287 : entry to support it, that right being "Thus, if A be tenant for life with turned into a right of action." a contingent remainder over, and Butler in his note says : " that, tenant for life be disseised, all the when, by the death of the disseisor, estates are divested; but the right or by any other means, the right of of entry of tenant for life will sup- entry under a previous estate is lost, port the contingent remainders; but there is no longer a rightful estate, in this case, if the contingent re- capable of supporting the contingent mainder does not vest before such remainder." 438 Ch. XV] REVERSIONS AND REMAINDERS [§396 possession as soon as the life estate was extinguished. Under such circumstances, the contingent remainder, if it took effect at all upon the happening of the contingency, vrould be bound to do so as a spyin^iig executory interest cutting short a previ- ously vested reversion in fee. Rather than permit a contingent remainder to take effect in this way it was held void and de- stroyed. The American authorities, however, clearly deny to the reversioner any right of entry during the life of the original life tenant and protect the disseisor in his possession during the life of the original life tenant. ^^ Hence, if Pearne's opinion rests upon the fact that the reversioner has a right of entry as soon as the life estate terminates by the running of the statute, his opinion cannot be used in this country as the basis for the destruction of a legal contingent remainder by the running of the statute against a preceding life estate. . If the disseisor were regarded as obtsiining a fee simple which was good during the life of the original tenant for life against the reversioner, and the contingent remainder took effect like a shifting executory interest after a prior fee, it is hardly prob- 'able that it would be held void and destructible.*^ Suppose, however, that the disseisor of the life tenant were held to acquire a new title to an estate for the life of the original life tenant — a view heretofore put forward as the least objection- able consistent with the authorities.** "Why under such circum- stances should the contingent remainder be destroyed? There is a freehold to support it. Indeed, the series of estates would be almost precisely the same as where A was given a life estate with an estate to B and his heirs for the life of A to preserve con- tingent remainders, with a contingent remainder to the eldest son of A.' In such a case if A's life estate terminated before A's death and before A's first son was born, B would step into a freehold for the life of A to preserve the contingent remainder. So in the case put, the disseisor obtains a new freehold for the life of the original tenant for life and no reason is perceived why this should not operate, to preserve the contingent re- mainder. *2Amfe, §385. ture Interests," page 120, Moot ^3 This is not, however, entirely case, certain. See Kales, ' ' Cases on Fu- ** Ante, § 386. 439 § 397] FUTURE INTERESTS [Ch. XV Topic 4. i Where the Adverse Claimant Has No Notice, Actual or Con- structive, OF THE Instrument Creating the Life Estate. § 397. Results of the cases stated : Where the instrument which creates the life estate and remainder or reversion is not recorded and the adverse holder or holders have no actual notice of it,*" adverse possession, for a single statutory period is sufS- cient to give the disseisor a title in fee valid against both the life tenant and the remainderman or reversioner.* ^ In the applica- tion of this rule it makes no difference whether the adverse, holder takes by deed from the life tenant *^ or disseises the life tenant, ot whether the remainder is vested or contingent. ' The rule evidently proceeds upon the theory that the adverse holder takes from the one who appears of record to have the fee, and such transferee takes free from all unrecorded instruments and interests thereunder. The premise here is hardly- correct. The adverse holder does not take title from any one. • He holds in opposition to that title. He extinguishes a former title and obtains under the statute a new and: original one. In this posi- tion he certainly does not fall within any protection given by the recording acts. On the other side, the remainderman is equally barred from suing whether the instrument which creates the remainder is recorded or not. Where the title rested, as it mostly does in this class of cases, in an ancestor who is dead, there is much carelessness in the recording of a will in all counties where the lands lie so as to give notice under the recording acts. The remainderman has some cause for complaint, when he sues for possession after the life tenant's death, to find that he has been barred because the adverse holder had no notice, actual or constructive, of the instrument which created the estates, due to some technical defect in recording a will or to a failure to record it where the land lay. Nevertheless it must not be for- gotten that the American cases which give the remainderman no right to possession till the actual &eath of the original tenant for life, and hence permit no adverse possession to begin against 45 Graff V. Rankin, 250 Fed. 150; Lewis v. Pleasants, 143 111. 271; Weigel V. Green, 218 111. 227; Du- Lewis v. Barnhart, 145 U. S. 56. gan V. Pollett, 100 111. 581. iTDugaa v. FoUett, 100 111. 581; isDugan v. Follett, 100 111, 5§1; Lewis v- Pleasants, 143 111. 271. 44Q Ch. XV] KEVERSIONS AND REMAINDERS [§398 the remainder until that time, have allowed reversioners and remaindermen to recover forty or sixty years after the adverse possession commenced against the life tenant. No doubt this has often appeared to be a great hardship and the courts have to some extent been driven to giving the recording acts an extra- ordinary operation in order to prevent such results. TITLE XII. VARIOUS LEGAL CONSEQUENCES WHICH DEPEND UPON WHETHER THE FUTURE INTEREST— USUALLY A RE- MAINDER—IS CONTINGENT OR NON-CONTINGENT. § 398. When can the tenant in common of a future interest maintain a bill for partition: One of several tenants in com- mon of a reversion** or a remainder, which is sure some time to take effect in possession and which the feudal or common law called vested, may file a bill for partition.*^ It is equally clear that one of several persons who were contingent remaindermen by the common law or feudal conception of that term, cannot have partition in this state.^" Recent cases here have gone far toward establishing the further proposition that a remainder which under the feudal or common law was called vested, but which -was uncertain ever to take effect in possession because it may be divested by a condition subsequent, is not> subject to involuntary partition while the uncertainty of its ever taking effect m possession continues.®^ The fact that the remainder is *8Hill V. Reno, 112 111. 154; 111. 105; Quinlan v. Wickman, 233 Whitaker v. Rhodes, 242 111. 146. 111. 39. *» Drake v. Merkle, 153 111. 318 ; The suggestion of Burton v. Gag- Deadman v. Yantis, 230 111. 243. non, 180 111. 845, that for the pur- See also Miller v. Lanning, 211 111. pose of enabling one of the several 620; Dee v. Dee, 212 111. 338, 354; co-owners of a future interest to file Cummins v. Drake, 265 111. 111. a bill for partition, a shifting exeeu- soRuddeU v. Wren, 208 111. 508, tory devise would be "vested" pro- 513, et seq.; Cununings v. Lohr, 246 vided it conformed to the New York 111. 577 (where the interest of which statutory definition of a vested in- partition was sought was an execu- terest, must be regarded as entirely tory devise). unsound and overruled by the later 51 Goodrich v. Goodrich, 219 111. cases above cited : See Chicago Le- 426, 1 111. Law Rev. 184; Cummings gal News, June 24, 1905, p. 362, V. Hamilton, 200 111. 480 (as to 180 et seq.; post, §482. acres) ; Seymour ■;;. Bowles, 172 111. Observe, however, that interests 521; Heininger v. Meissmer, 261 in possession may be partitioned 441 § 399] PUTUBE INTERESTS [Ch. XV vested in the children of the life tenant subject only to be divested pro tawto by the birth of' other children, will prevent any child filing a bill for partition.^^ But the fact that the inter- ests of some co-tenants of the future interest are uncertain to vest indefeasibly and so are not subject to partition at their request, does not prevent the filing of a bill for partition by one co-tenant of the future interest whose interest is indefeasibly vested.^* It is clear, therefore, that whether a bill for partition lies by the holder of a future interest does not depend upon whether the future interest is a vested or contingent remainder in the feudal sense, but upon whether it is vested and indefeasible on the one side, or vested and defeasible, or contingent on the other. It would follotv, therefore, that partition may be had of a certain executory interest, i. e., one which is neither vested nor con- tingent in the common law sense ^* — as where land is limited to A, B and C from and after the 1st of January next. It appears that at least so long as the remainderman is out of possession he may agree, or the creator of the remainder may provide that it shall not be subject to partition.^^ § 399. Right of holder of future interest to prevent waste by the one in possession: Where the person in possession of the laud and committing the alleged act of waste is the holder in fee and the plaintiff is an executory devisee or the holder of a shifting executory interest, or a possibility of reverter after a determinable fee, he has no action for waste at law. Nor will equity enjoin the commission of such acts, done iona fide, as a prudent man who was the absolute and indefeasible owner of the land would do.''^ But equity will enjoin the acts of the person in possession where such are done maliciously or where they are in excess of what a prudent man would do with his own.^^ The contingent remainderman after a life estate had no action though subject to be terminated,: 05 Post, § 727. Askins «. Merritt, 254 111. 92. oe Gannon v. Peterson, 193 111. 52 Richardson v. Van Gundy, 271 372; Fifer v. Allen, 228 IlL 507; 111. 476. Dees v. Cheuvronts, 240 111. 486. 53 Bush D.I HamiU, 273 111. 132; st Turner v. Wright, 2 De G., F. .Pitzer V. Morrison, 272 lU. 291; & J., 234; Ames' Cases on Equity Betz V. FarUtg, 274 lU. 107. Jurisdiction, 476. 5* Pearne, Cont. Rem. 1, Butler 's note. 442 Ch. XV] REVERSIONS AND EEMAINDEBS [§400 at law for waste, because he was iiot the holder of the next estate of inheritance after the estate in possession, for the reason that the reversioner pending the vesting of the contingent remainder had it, and hence was the only one who had an action at law for waste. The situation so far as the contingent remainderman was concerned was like that where the estates were to A for life, to B for life, and to C in fee. C had no action for waste at law against A. But equity gave C an injunction against A to restrain the same acts on the part of A that C could have recovered damages for at law had C held the next estate in reversion after A's life estate.^® The injunction was for waste which was in the nature of legal waste. So, it is believed, where after the life estate there is a reversion in fee in B and a con- tingent remainder in C in fee, while B could have an action at law for waste, and C could not, C could have an injunction in equity to restrain the doing of any acts by the life tenant which would constitute waste, if the suit were by p. That, it is be- lieved, is exactly the result reached in the recent case of Ohio Oil . Co. V. Dauffhetee.^^ > Thus, it is clear that if the act of the first taker in fee is that of obtaining oil from the land, one entitled to a shifting estate of inheritance has no ground for an injunction to restrain waste,** while a contingent remainderman after a life estate has.^i In the former case the act must be either malicious or such as a prudent man would not do with his own. Obviously, sinking oil wells is not such an act, vi^hile in the latter case any act on the part of the life tenant which would be waste when the suit was by the reversioner, would be enjoined by a court of equity at the instance of the contingent remainderman. Clearly, sinking new oil wells is such an act. § 400. When the holder of a future interest need not be made a party defendant to a suit in chancery : Those who have . equitable interests subject to a condition precedent in fact. and in form to their ever taking effect in possession are represented 58 Anonymous, Moore, 554, placi- injunction was denied because the ti^, 748; Ames' Cases on Equity remainder was contingent. ' Jurisdiction, 467. - <»> Dees i). Oheuvronts, 240 111. 486. 59 240 111. 361. See also Smith v. ei Ohio Oil Co. v. Daughetee, 240 Tucker, 250 111. 50. But in Bobert- ' 111. 361. son V. Guenther, 241 111. 511, the 443 §401] FUTURE INTERESTS [Ch. XV by the trustee in any litigation relating to the trust estate. The rule is that they are bound by the decree though not made parties.®'^ If, however, the future interest is vested in the feudal sense and indefeasible, the holder, to be bound, must be made a party.®* In one case -where the remainder was vested in the feudal sense but was defeasible upon the happening of a condi- tion subsequent in form the remainderman was bound, though not made a party.** If this stands it indicates that the deter- mination of what holders of future interests may be bound by a decree when they are not parties, does not turn on the feudal distinction between vested and contingent remainders. § 401. Whether an inheritance ta^ is immediately assess- able: Before Section 25 of the Inheritance Tax Act*^ the question arose whether an inheritance tax on a future interest was immediately assessable or not. Of course if the future interest was a vested remainder in the feudal sense and also indefeasible, the t^x was assessable at once. On the other hand, if the future interest were subject to a condition precedent in form to its ever taking effect in possession, the assessment of the tax must await the happening of the contingency. It was also held that even though the remainder was vested in the feudal sense, but was also defeasible by the happening of a condition subsequent in form divesting the remainder, it was contingent in such a sense that the inheritance tax was not immediately assessable.*® This makes it clear that the feudal distinction between vested and contingent remainders was not involved. The real distinction was between non-contingent and indefeasible interests and contingent and defeasible interests. It followed that the tax was assessable upon a non-contingent or certain executory interest — as a gift to A ten years after the testator's death.6^ 62 American Bible Society v. Price, e4 McCampbell v. Mason, 151 111. 115 111. 623, 644; Temple v. Scott, 500, 510-511. 143 111. 290 ; Thompson v. Adams, eo Laws 1909, p. 311 (111. Session 205 111. 552, 559 (unborn persons). Laws). 63 In Burton v. Gagnon, 180 111. oe People v. McCormiek, 208 111. 345, the court went very far (post, 437, 443, 444; Billings v. People, §482) in making out a vested re- 189 111. 472, 485; Ayers v. Chicago mainder so that the rem3,inderman Title & Trust Co., 187 111. 42. would be bound by a partition de- 6? Jn re Estate of Kingman, 220 cree to which they were parties. 111. 563. 444 CHAPTER XVI. THE STATUTORY REMAINDER CREATED BY THE STATUTE ON ENTAILS AND REMAINDERS LIMITED AFTER AN ESTATE TAIL. TITLE I. THE STATUTOEY REMAINDER. § 402. Statutes : There have been in Arkarisas, Colorado, Missouri and Vermont statutes concerning estates tail, in every respect material to the present inquiry, identical with section 6 of the Illinois Act on Conveyances.^ This last is as follows: "In cases where, by the common law,^ any person or persons might hereafter become seized, in fee tail, of any lands, tene- ments or hereditaments, by virtue of any devise, gift, grant or other conveyance, hereafter to be made, or by any other means whatsoever, such person or persons, instead of being or becoming seized thereof in fee tail, shall be deemed and adjudged to be, and become seized thereof, for his or her natural life only, and the remainder shall pass in fee simple absolute, to the person or persons whom the estate tail would, on the death of the first grantee, devisee, donee in tail, first pass, according to the course 1 E. S. 1874, Ch. 30, § 6. Hurd 's estates by the common law, when B. S. 1899, Ch. 30, § 6. we have seen that estates tail grew 2 The present Missouri Statute out of the Statute de donis, and (E. S. 1899, Vol. 1, par. 4592) not out of the common law. * * » s, "where by the Common or If, as is contended by the defend- Statute law of England any person ants in error, the General Assembly might become seized in fee tail, intended to restore the common law * * "so that it may be re- as it stood before the adoption of garded as clearly referring to es- the Statute de donis, they would tates tail created by the Statute de simply have repealed that statute, donis of Edward I. The same con- and left the donee with power, on struction is put upon the language the birth of issue, to 'alien the estate, of the Illinois Statute: "The Gen- and re-purchase, and thus cut off eral Assembly must have intended both the remainder and reversion." to refer to estaties tail created by the Per Walker, C. J., in Frazer it. Statute de donis. They speak of Board of Supervisors, 74 111. 28-2, persons becoming seized of such 287, 288. 445 402] FUTURE INTERESTS [Ch. XVI of the common law, by virtue of such devise, gift, grant or con- veyance. ' ' Of these the Missouri Act of 1825 * seems to have been the first. It remained in force in Missouri until 1845, when it was so altered* as to read that "upon the death of such grantee or grantee, -devisee, donee in tail, first pass, according to the course devisee [in tail], the said lands and tenements shall go and be vested in the children of such grantee or devisee, equally to be divided between them, as tenants in common in fee ; but if there be only one child, then to that one in fee; and if any child be dead, the part which would have come to him or her, shall go to his or her issue, and if there be no issue, then to his or her heirs. " ^ In 1866," however, the Missouri Legislature restored the Act of 1825 to the statute book. In 1827,'^ Illinois copied « the Missouri Act of 1825 and since then the law here has re- ' mained in force without change.^ In Arkansas the statute appeared first in 1837; ^" in Vermont in 1840; ^i and in Colo- rado in 1867.12 In these three states the' statute has remained in force since its first passage 'in its present form.^* 3 E. S. 1825, Act coneerning con- veyances, §4; E. S. 1835, Act regu- lating conveyances, § 5. * E. S. 1845, Act on Conveyances, §5; E. S. 1855, Ch. 22, § 5. B Observe that the New Jersey Act of June 13th, 1820 (Eev. Stat. 1821, page 774, §2), was in sub- stantially this form, giving the re- mainder in fee to "children" of the donee. It seems to have con- tinued in force in New Jersey down to the present time. (Elmer's Di- gest, p. 130, §6; Stat, of N. J. 1874, p. 341, §11; Nixon's Digest 1709-1855, p. 196, § 11; Gen'l Stats, of N. J. 1709-1895, Vol. 2, p. 1195, §11). 8.E. S. 1866, Ch. 108, §4; Wag- ner's Mo. Stat. 1870, p. 1351, §4; E. S. 1879, p. 675, §3941; E. S. 1899, Vol. 1, § 4592. 7 Laws 1827, p. 95; 1 A. & D. E. E. 8., p. 75. 8 It would seem as if the Illinois Statute of 1827 must have been copied from the Missouri Act of 1825. The two are absolutely iden- tical in language, except that the Illinois Act has omitted six words which in the Missouri Statute make it apply to all estates tail created and existing at the time when the act went into effect. 9E. S. 1845, p. 104; E. S. 1874, p. 273. 10 E. S. 1837, p. 189, Ch. 31, § 5. 11 E. S. 1840, Ch. 59, § 1, p. 310. 12 E. S. 1867, Ch. 17, § 5. isArlcansag: Sandels & Hill, Di- gest of Statutes 1894, p. 352, Ch. 29, § 700. Vwmont: G. L. 1862, Ch. 64, § 1, p. 446; V. S. 1894, Ch. 105, § 2201, p. 426. Colorado: E. S. 1877, Ch. 18, § 6; Mill's Ann. Stats., Vol. 1, p. 584, §432 (1891). 446 Ch. XVI] REMAINDER BY THE STATUTE ON ENTAILS [ § 404 § 403. Their operation : Do these statutes operate to turn an estate tail of which a grantee actually becomes seized into the statutory life estate and remainder, or dq they operate to give to language of a deed appropriate to create an estate tail the effect, when finally utteted upon the delivery of the deed, of language apt and sufficient to create the statutory estates? The result in Spencer v. Spruell,^* seems to present a decisive answer to this question. There the conveyance by deed ran. to A and the heirs of her body. The deed was fully delivered so far as the grantor was concerned by being put into the hands of a third person and thereby placed irrevocably out of the grantor's con- trol. It looks (though the report is not clear upon the point) as if at the time the deed was executed, A had children alive. The donee in tail, A, refused to accept the conveyance. It was held that, in consequence, the deed never had any effect at ^all, because A never became actually seized of an estate tail. If the statute had operated only to cause one form of language to be equivalent to another appropriate to confer the statutory estates, the result must have been different. A remainder would then have been limited to minor great grandchildren of the grantor and, under the doctrine of our Supreme Court, acceptance would have been presumed.^' The life tenant would have renounced, and the children would, accordingly^, at once have taken the fee." § 404. The statutory remainder — Prior to the birth of issue of the donee in tail : So long as there is no issue of the donee in tail the statutory remainder is a common law contingent remainder.!^ It now seems to be subject to the rule, of de- 1*196 111. 119. mination of the preceding estate or 15 Winterbottom v. Pattison, 152 fail altogether, be applicable, the In. 334; Coleman v. Coleman, 216 result reached in the above case is 111. 261. ' explainable upon the application of 18 Of course if A had no children that rule, living at the time of the execution i7 Frazer v. Board of Supervis- of the deed, or if the statutory re- ors, 74 111. 282, 290; Atherton v. mainder to the iftiildren be regarded Eoche, 192 111. 252, 257, semble; as contingent, after a child is boru Dinwiddle v.- Self, 145 111. 290, 300, (which it seems it is not in this semble; Winchell v. Winchell, 259 state, post, § 406), and the rule, that 111. 471, 475; Moore v. Eeddel, 259 a contingent future interest after 111. 36, 47 ; Doney v. Clipson, 285 111. a particular estate of freehold which 75; Lewin v. Bell, 285 111. 227. can, must vest at or before the ter- 447 §405] FUTURE INTERESTS [Ch, XVI structibility of contingent remainders.'^* § 405. After the birth of issue of the donee in tail— Three views as to the character of the remainder and the persons entitled to it: First: The statute expressly limits the re- mainder in fee to the "person or persons whom the estate tail would, on the death of the first grantee, devisee, donee in tail, first pass, according to the course of the common law, by virtue of such devise, gift, grant or conveyance." At common law, it was impossible to ascertain to whom the estate would pass until the death of the donee in tail, since, by the course of the common law, the estate tail at that time passed regularly by descent to the first tenant in tail's heir at law, provided such heir* at law was of the issue of the body of the tenant in tail,^* and since no one can be the heir of a living person.^" The remainder, then, was clearly subject to a condition precedent and the conditional element was incorporated iiito the description of the remainder- man.21 The case, under the English authorities, would be one of the typical examples of a contingent remainder.^^ In Ar- i«Ante, § 318; Lewin v. Bell, 285 III. 227; Frazer i). Board of Super- visors, 74 111. 282 contra. 19 John de Manville 's Case, Co. Lit. 26b; 4 Oray's Cases on Prop., 9. 20 Seymour v. Bowles, 172 111. 521, 524; McCartney v. Osburn, 118 111. 403, 415; Cooper v. Cooper, 76 111. 57; Butler v. Huestis, 68 111. 594, 598. 21 Gray, Eule against Perpetui- ties, § 108 ; ante, § 345. 22 ^nte, §308; Fearne C. R. 9; Pearne Cont. Eem. Smith's Notes, §§383-385; Leake, Digest of Land Laws, p. 324; Challis, Eeal Property, 2nd ed. 120. All these writers state the typical case of a contingent re- mainder of Pearne's fourth class to be to A for life, remainder to the right heirs of J. S., who is at that time living. Challis says: "* * * the remainder cannot vest until the ascertainment, or coming into being of a person to satisfy ^he description in the limi- tation; and in the case of limita- tions to the heirs of a living per- son, such ascertainment can only take place upon his death; because nemo est heres viventis. It might at first sight be thought that the remainder is vested in the heir pre- sumptive or heir apparent; but as the heir is, by the terms^ of the limitation, to take as a purchaser, and as the purchaser is to be the person who in ' fact comes within the description of heir, it is clear that the remainder cannot vest in the heir presumptive or apparent so long as his heirship remains only presumptive or apparent, because such a person may not, in fact, ever be the true heir at all, and there- 448 CH. XVI] REMAINDER BY THE STATUTE ON ENTAILS [§ 406 kansas^^ and Vermont 2* the remainder is held to be contingent. Second: Under the New York statutory definition's the remainder would be vested and alienable inter vivos. It would, however, be divested as to those who died before the life tenant, so that at the life tenant's death only those who were in fact heirs of the body of the life tenant would take. Third: If the remainder were vested in the feudal or common law sense and not subject to be divested, the statute must be regarded as creating a remainder in the "children" of the life tenant, so that the remainder vests in the feudal sense in each child when born, subject only to open and let 'in others, and not subject to be divested so far as the operation of the statute is concerned. , § 406. State of the decisions of the Illinois Supreme Court; These have leaned more or less in favor of each of the three views aibove mentioj^ed, but seem now to have settled down in favor of the third. In a number of cases where, however, the point was not strictly involved, the court has referred to the statutory remainder as one to the "heirs of the body" of the life tenant,'® or to "the person or persons who were in the class of persons to whom the estate tail might first pass on the death of the first grantee, as soon as such person or persons came into being.'''' Such expressions described a contingent remainder according to a literal reading of the statute. During the considerable period when the court was not" dis- tinguishing clearly between the New York statutory definition of a vested remainder and the common law definition, it was inclined to say that the remainder to the "heirs of the body" vested upon the birth of an expectant or presumptive heir of the body, but that such a vested interest was subject to be divested by the death of such a presumptive or expectant heir before the tote may never be qualified, under 23 Horsley v. Hilburn, 44 Ark. the terms of 'the limitation, to take , 458, 476. the estate at all." '* In re Estate Kelao, 69 Vt. 272; Observe that the English writers In re Wells' Estate, 69 Vt. 388. had no occasion to deal with the 25 Ante, i 357. case of a limitation to A for life 26 Metzen v. Schopp, 202 111. 275; with a remainder to the heirs of Bowlin v. White, 244 111. 623 ; Dick A's body because .sueh a limitation v. Bicker, 222 lU. 413. would have been subject to the 27 Aetna Life Ins. Co. v. Hoppin, Eule in Shelley's Case. 249 111. 406, 415; 214 Fed. 928. Kales rut. Int. — 29 44Q § 406] FUTURE INTERESTS [Ch. XVI life tenant, so that those who finally took would be in fact heirs of the body of the life tenant at his death. Thus in Butler v. Buestis^^ the court said "Mrs. Huestis [the donee in tail] under our statute, would take a life estate in the property and the remainder would pass in fee simple absolute to her children, although it might open to let in after born children, and he divested as to such as should die before the determination of the life estate." Later, in Lehndorf v. Cope,^^ we have the dictum of Mr. Justice Shope that the remainder though vested, is sub- ject to be divested. Speaking of the statutory remainder he said : ' ' The person to whom the remainder is limited is ascer- tained, the event upon which it is to take effect is certain to happen, and although it may be defeated by the death of such person before the determination of the particular estate, it is a vested remainder." Prom the first, however, there have been dicta and actual hold- ings that the remainder vests in each child of the life tenant upon birth and, when so vested, is indefeasible. This means that the statiitory remainder was in reality a remainder to the "children" of the life tenant. Thus in Voris v. 8loan,^'> the court actually held the remainder indefeasible by declaring it error in a decree not to recognize that, upon the death of two children of the donee without issue surviving, the children's share descended to their mother, the donee in tail, as well as to the other children. Subsequently in Welliver v. Jones,^^ the court again held squarely that the remainder was not subject to be divested, so that, when the sole lineal heir of the donee died without leaving issue in the life of the donee, the remainder passed by descent to her collateral heirs, viz. her mother the donee, and half brothers and sisters who were children of the donee's husband's first wife. Still later, in Kyner v. Boll,^^ there is an express recognition of the propriety of the result 28 68 111. 594, 598. life estate, and subject to open ^nd 29 122 111. 317, 331. let in 'after born children, proceed- so 68 111. 588. ed as follows: "When the child 31 166 111. 80. Eugene died before the birth of an- sa 182 111. 171, 177. There the other child, such fee so vested in Court, after stating that upon the him passed to his heirs-at-law, who birth of Eugene, the first child of were his father and mother, subject the donee in tail, he took an estate to be divested pro tanto to let in in fee simple subject to the donee's after born children." 450 Ch. XVI] REMAINDER BY THE STATUTE ON ENTAILS [§407 reached in Voris v. Sloan and Welliver v. Jones. Recently the court in Moore v. Beddel ^^ and Winchell v. Winchell ^* appears to have settled the law of the State in favor of the holding in Welliver v. Jones.^^ For a long time it was apparently the holding of our Supreme Court that the Rule in Shelley's Case only applied to create a fee. It had no application to create an estate tail.^® Hence it would not apply where the limitations were to A for life, re- mainder to the heirs of the body of A. The reason for this was that, if upon the application of the Rule in Shelley's Case to create an estate tail, the Statute on Entails immediately turned the estate tail back into the same limitations,' there was no use in applying the Rule in Shelley's Case.^'' Hence it was said that the Bide in Shelley's Ca^e was abolished so far as a fee tail was concerned.^* Since, however, it has become the settled rule of the court that the remainder is in fact to the chil- dren of the donee in tail and vests in each child upon birth, sub- ject only to open and let in others, the reason for not applying the Rule in Shelley's Case to effect the creation of an estate tail, fails. "We, therefare, find the court applying the Rule in Shel- ley's Case freely where the remainder is to the heirs of the body of the life tenant.*' § 407. Assuming that the statutory remainder is limited to "children" — (1) Can the re^iainderman be restricted to a special class of children in the case of an estate tail special? A New Jersey statute of 1820,*" in terms created a remainder 33 259 III. 36. remainder in fee to the bodily heirs 3< 259 111. 471. of herself and her husband. The 35 See also Kolmer v. Miles, 270 Court then said that, even proeeed- 111. 20; Biehardson v. Van Gundy, ing upon the supposition that M. A. 271 111. 476; Doney v. Clipson, 285 L. took a life estate by the original 111. 75; Lewin v. Bell,. 285 111. 227. limitation in the deed, the result 38 Post, § 418. would be the same, since M. A. L., 3' Such is the reasoning of Mr. by the Eule in Shelley 's case, Justice Shope in Lehndorf v. Cope, "would, at conunon law, be seized 122 111. 317, 331. There the deed of an estate in fee tail; and brought ran to " M. A. L. and her heirs by directly within the terms of Section her present husband, H. L." This 6" of the Act Concerning Convey- was held to give M. A. L. a fee ances. tail special at common law which sa Post, § 418. the statute on estates tail turned , 39 Post, § 420. into a life estate to M.*A. L. and a *» Eev. p. 299, §§ 10, 11. 451 § 408] FUrUBK INTERESTS [Ch. XVI in the "children" of the donee.*i Under this Act if an estate tail be limited to A and the heirs of his body by a particular wife, B, and he have no children by B, but does have children by ano'ther and different wife, the issue of such different \rife will take the remainder in fee, because the statute says "chil- dren" without distinguishing between special classes of chil- dren.*2 Yet in this State the remainder has been restricted to children of the donee in tail by the particular wife *^ even when the statutory remainder was held to be vested indefeasibly in the children when born.** § 408. (2) At what period of time does the class close? The court evidently assumes that the usual rule applies and that the class may increase up to the time of the death of the life tenant; nor does the court find any impediment to this in the circumstances that the estate tail is created by deed*^ and the donee in tail had children in esse when the estate tail was created.*® § 409. If the laxiguage of the statute were taken literally, who precisely would be entitled to the remainder — Those who are lineal heirs according to Blackstone's Canons of Descent? or those who are lineal heirs according to the Statutes on Descent? Since it is now settled that the statutory remainder is "to children" and not to the "heirs of the body" of the donee entail, the proposed inquiry is academic, and yet it is useful and important as indicating some of the difficulties, and a very great incongruity of result, in taking the wording of the statute literally. Indeed, it may be surmised that these were the considerations which drove the court in Moore v. Beddel*'' to hold decisively that the statutory remainder was to "chil- dren." itDoty V. Teller, 54 N. J. L. 163. ■'s Moore v. Reddel, 259 111. 36; *2Zabriskie v. Wood,' 23 N. J. Eichardson v. Van Gundy, 271 111. Bq. 541 ; Weart v. Cruaer, 49 N. J. 476. Compare this with the holding L. 475, 480. that a conveyance by deed to A and " 43 Cooper V. Cooper, 76 111. 57; , his children, "born and to be Welliver D. Jones, 166 111. 80. born," does not permit after-born <*Welliver v. Jones, 166 111. 80. children to' take any interest, post, 45 Richardson v. Van Gundy, 271 §§475, 476. 111. 476; Moore v. Eeddel, 259 111. 47 259 111. 36, 44. 36; Kyner v. Boll, 182 111. 171. 452 CH. XVI] REMAINDER BY THE STATUTE ON ENTAILS [§409 In Arkansas,** and Vermont,** it seems clear that the re- mainder under the sta!tute vests in such issue of the donee in tail as are his heirs under the statute on descent. In all the eases the point is assumed, no other view being suggested. It is hard to say that this is not a proper result, and yet there are difficulties with it. The holding is precisely one of those which the court ought to have justified when it was made, so as to put forever at rest doubts based upon very plausible reasoning.' Ac- cording to the language of the statute the remainder in fee is limited "to the person or persons whom the estate tail would, on the death of the first grantee, devisee, donee in tail, first pass, according to the course of the common law." It is clear that the descent if traced literally "according to the course of the common law," must have followed such of Blackstone's canons ^4 as are applicable to lineal descent, viz., "the male issue shall be admitted before the female." "Where there are two or more males in equal degree, the eldest only shall inherit, but the females altogether." "The lineal descendants, in infinitum, of any person deceased shall represent their ancestor: that is, shall stand in the same place as the person himself would have done had he been living." Thus, the eldest son alone, if there were one, would take the remainder in fee, and the rule of primo- geniture would have survived to the present day in this on« case. Such a conclusion is not so impossible as it might at first seem. It was in fact adopted in two Missouri cases. ''^ In the more recent one the court said : "That under this statute, by the grant in the deed, to Mary A. Walker and the heirs of her body, she took only a life estate, is beyond dispute. The serious question is, to whom did the other part, the remainder in fee simple absolute, go ? The answer of the statute is, to the persons to whom the estate tail would on her death first pass according to the common law, by virtue of the grant. This grant being of a fee tail general, according to the common law, its course by that law is similar, so fdr as it goes, to that of an estate in fee simple (Williams, R. P. 120, 17 Int. Ed.), and as at the date of *' Horsley v. Hilburn, 44 Ark. si Frame v. Humphreys, 164 Mo. 458; Myar v. Snow, 49 Ark. 125; 336; Burris v. Page, 12 Mo. 358. Wilmans v. Epbinson, 67 Ark. 517. Observe the admission of our Su- ^» Thompson v. Carl, 51 Vt. 408. preme Court in Moore v. Beddel, 5»2 BI. Com., Ch. 14, 200-240; 259 111.36,44. 4 Gray's Cases on Prop., 9. 453 § 409] FUTURE INTERESTS [Ch. XVI the grant there were living sons and daughters of the said Mary, A. Walker, of whom John D. Walker was the eldest, and as to him the estate tail would first pass on the death of his mother according to the common law (I Cooley's Black., 4 Ed. bottom pp. 605 and 606), to him the remainder in fee simple absolute passed under the statute by virtue of the grant, * * *." " There would seem to be only two possible grounds for reach- ing a different result: First, that a modern statute changing the common law mode of descent had, prior to the statute on entailments, altered the course of descent in cases of estates tail and that the act concerning entails, in referring to "the course of the common law, ' ' really indicated the common law as modified by the modem statute. Second, that a statute of descent, passed subsequent to the act regarding entails, by im- plication modified it so that, "according to the course of the common law," must be read "according to the statute of descent. ' ' An examination of the statutory history of Illinois will show how difi&cult it is, in that state at least, to sustain either of the grounds suggested. At the time the Act of 1827 concerning entails was passed, there had been in force in Illinois as a territory and as a state since 1787, a statute changing the common law course of lineal descent so that children and descendants of a deceased child shared in equal parts, the descendants of a deceased child or grandchild taking the share of their deceased parent in equal 52 This reasoning evidently pre- grounds upon which his contention vailed over a strong prejudice could possibly exist in this ease, against the result which it entailed, the stress of work forbids that we for in Kozier v. Graham, 146 Mo. should enter upon such a disous- 352, at page 360, the Court had sion. While it is somewhat start- said: "It might prove interesting ling, we do not think it is alto- to examine and discuss at length gether new, and we feel justified the exceedingly ingenious and in saying that however plausible plausible argument of the able the theory evolved from the mere counsel for Mrs. Mullen that our words of the statute, no siieh eon- statute of 1835 [Mo. R. S. 1835, struction ever has been given that Act of Conveyances, Sec. 5] dock- statute in this State, or ever will ing entails has been the means of be. There are no mourners for the preserving the common law rule of doctrine of primo-geniture in this descent of primo-geniture, but hav- State." ing disposed of the only two 434 Ch. XVI] HBMAINDEB BY THE STATUTE ON ENTAILS [§409 parts among them.^^ j)i,j these acts change the course of descent in the case of an estate tail? If so, did the Act of 1827 refer to the coui;se of descent as changed by them 1 It is clear that the first statutes of descent were not in terms confined in their application to estates in fee simple, for they begin: "That the estate of both resident and non-resident pro- prietors * * * dying intestate shall descend."' "Propri- etors" is a word which might well have included holders of an estate tail. An examination, however, of some early cases in Massachusetts,^* Pennsylvania,^® and Maine,^^ will seem to in- dicate a strong tendency to hold that the modern statutes con- cerning 'descent, even when they are not in terms confined to estates in fee simple,^'^ do not apply to estates tail so that the descent there still continues to be to the eldest son, etc., accord- ing to the course of the common law.^^ But, from a careful examination of these cases, it will appear that the results reached were influenced by a long period of recognition of estates tail and their descent according to the, common law ^® and a conse- quent disinclination to overrule, by implication merely, a settled 53 1 A. & D. E. E. S., 439; also L. 1819, p. 223 (1 A. & D. B. E. S. 446). "Corbin v. Healy, 20 Pick. (Mass.) 514 (1838) ; ' Wight v. Thayer, '67 Mass. 284 (1854). 55Beinhart v. Lantz, 37 Pa. St. 488 (1860), overruling the earlier case of Price v. Taylor, 4 Casey (Pa.) 95, 106; 28 Pa. St. 95, 106; Sauder v. Morningstar, 1 Yeates Pa. 313 (1793), is no authority upon the point of -the text because there the statute of descent (Act of 1705) only regulated the descent of lands where the father is seized thereof, and might dispose of them by deed or will. "Eiggs V. SaUy, 15 Me. 408 (1839). 57 In Corbin v. Healy, supra, the statute of descent involved (Mass. Laws of 1780-1791, p. 124, Act of March 9, 1784) read: "That when any person shall die seized of lands. tenements' or hereditaments, not by him devised, the same shall descend in equal shares to and an^ong his children," etc. In Eeinhart v. Lantz, supra, the statute involved (Session Laws of Pa., 1832-3, p. 315) applied to "the real and personal estate of a de- cedent, whether male or female, re- maining after payment of all just debts and legal charges, which Shall not have been sold or disposed of by wUl or limited by marriage set- tlement. ' ' 58 In 1 Leading Cases in Ameri- can Law of Eeal Property (note by Sharswood and Budd), 104. 59 ",The existence and incidents of an estate tail have always been refcognized in this Commonwealth, and provision made for an easy mode of barring them; and com- mon recoveries to bar them have been in frequent use." Per Shaw, C. J., in Corbin v. Healy, 20 Pick. 455 § 409] FUTURE INTERESTS [Ch. XVI rule of property.®^ It may fairly be asstuned, however, that such considerations never could have influenced the courts of Illi- nois and would not now do so. We may, therefore, assume for the purpose of the present discussion that the supreme court of this state would hold that the statutes of descent in force prior to 1827 did apply to alter the course of descent of estates taU.61 Then we reach this question: Does the Act of 1827, in de- claring that the remainder shall pass "to the person or persons, whom the estate tail would, on the death of the first grantee, devisee, donee in tail, first pass, according to the course of the common law" mean the common law as altered by previous, statutes then in force? It is difficult to answer this question in the affirmative. The common law and the statutory rules concerning descent were radically different. The latter did away with the former and superseded them. When, therefore, a new act was passed which referred in terms to descent "ac- cording to the course of the common law," the common law course of descent would seem to have been unequivocally dis- tinguished and pointed out, and not a wholly different stat- utory mode.* 2 This was the position taken by the Missouri (Maas.) 514, 517 (1838). In Sau- eo gee language of the Court in der*v. Morningstar, 1 Yeates (Pa.) Price v. Taylor, 28 Pa. St. (4 313 (1793), counsel who were argu- Casey) 95, 106. ing that the estate tail descended to 6i See the suggestion of Lowrie, all the sons equally were stopped J., in Price v. Taylor, 28 Pa. St. (4 by the Court. • ' The Court observed Casey) 95, 106. that it was too late now to stir <>- It might be urged that the Act this point whatever reason there of 1827 itself furnishes an exam- might have been for it in the first pie where a reference to the com- instance. The invariable opinion mon law admittedly includes a stat- of lawyers since the Act of 1705 utory amendment of the common has been, that lands entailed de- law, since, while referring to "cases soended according to the course of where by the common law any per- the common law, and it has been un- son or persons might hereafter be- derstood generally, that it has been come seized, in fee tail," cases so adjudged in early times. All where by the statute de donis of the common recoveries which have Edward I, any person is seized in been suffered by the heirs of donees ,fee tail are meant. But a fair argu- in tail have been conformable to ment can hardly be drawn from this that principle; to unsettle so many because the result was reached not titles at this late day would be pro- because "common law" includes a ductive of endless confusion." subsequent statutory amendment of 456 Ch. XVI] REMAINDER BY THE STATUTE ON ENTAILS [§410 court in the recent case of Frame v. Humphreys.^^ There the court said: "Although the common law of descents was never in force in this jurisdiction (Terr. Laws of Louisiana, 1807 Cap. 39; Terr. Laws of Mo. 1815 Cap. 143; R. S. 1825, p. 326; R. S. 1835, p. 222) that law was, as we have seen, preserved in the statute of conveyances, not as a law of descent, but to the ex- tent only and for the single purpose of affording, a rule for the determination of an estate tail by grant or devise * * *. " «* It is difficult to, say that the statute of 1829 *^ concerning descents, operated in any way to alter the language of the Act of 1827 concerning entails. If it did so it must be by implica- tion merely. But there is no ground for any such implication since the Act of 1827 deals completely with the subject of en- tails and the subsequent statute conaerning descent does not in terms, nor, indeed, need it be regarded as in the slightest de- gree inconsistent with the Act of 1827. Subsequent events re- pel any inference that these two acts are at all inconsistent with each other, since they have been re-enacted in their orig- inal form in the subsequent revisions of 1845,** and 1874.*'^ TITLE II. REMAINDEBS AFTER THE ESTATE TAIL. § 410. Before the statutory remainder vests by the birth of children of the donee in tailr A remainder limited after the estate tail is not destroyed by operation of the statute, since (the fee in remainder created^ by the statute has not vested and the eommon law, but because the ' ' shall go and be vested in the chil- statute in terms ajplied to es- dren of such grantee or devisee tates tail and at eommon law there equally to be divided among them, ' ' were none such at all. , etc. But by the Act of 1866 (ante, 83164 Mo. 336. §402, note 6, this "last vestige 6* The Court adds that by the of the system of feudal tenures" Eevision of 1845 "this last vestige was evidently restored by the re- of the system of feudal tenures was enactment of the Act of 1825 re- swept from our statute book." garding entails. (Frame i;. Humph- That is true because the Act of reys, 164 Mo. 336.) 1845 referred to must have been es Laws 1829, p. 191; 1 A. & D. Mo. R. S. 1845, p. lliS, Sec. 5 (Act R. E. S., p. 464, § 46. regulating conveyances), wh^re it 6« R. S. 1845, p. 534, § 46. was provided that the I'emainder " R. S. 1874, p. 417, Ch. 39, § 1. 457 § 411] FUTURE INTERESTS [Ch. XVI may not vest.^^ If the interest after the estate tail be limited to take ■ effect after a definite failure of issue pf the donee in tail, it is clearly not void for remoteness.*' It would, however, be a contingent remainder after the statutory life estate and subject to the rule of destructibility of contingent remainders J* Even though the interest after the estate tail were limited to take effect upon an indefinite failure of issue of the donee in tail,''! II would be valid because it would be a contingent re- mainder and subject to the rule of destructibility, which re- quires it to take effect before or at the termination of the statutory life estate or fail entirely. It could not, therefore, be void for remoteness.''^ Furthermore, the remainder is lim- ited in two events: One, if the statutory life tenant dies with- out having had any issue ;' and the other if the life tenant hav- ing had issue, such issue fail in any generation. In the first event the future interest is a contingent remainder and not too remote. In the second, -it is a shifting executory interest and void for remoteness. The two events are not separated by any language of the instrument creating the estates, but under the rule of Doe d. Evers v. Challis,''^ they are separable by opera- tion of law and if the event occurs which enables the future interest to take effect as a vested remainder, it may do so. § 411. After the statutory remainder has vested by the birth of a child of the donee in tail: Recently our Supreme Court said^* "The statute [on Entails] operated to destroy the entail supporting the remainder, and necessarily destroyed the remainder expectant on the estate tail. The statute operat- ing upon the estate tail to turn the entail into a fee simple, all es Metzen v. Schopp, 202 111. 275. cannot apply where they are all 69 ig, equitable : In re Bence, [1891] 3 Ch. ■'(^Ante, §318. 242; In re Hancock, [1901] 1 Gh, "Posi, §548. 482; [1902] A. C. 14. See Post 72 Post, §§ 687 e< seq. § 689. 73 18 Q. B. 224, 231; 7 H. L. C. JiKolmer v. Miles, 20 111. 20, 26 531; 5 Gray's Cases, 2nd ed. 582; In Blair v. Vanblarcum, 70 111. 2 Kales' Cases on Future Interests, 294, the court refused to deal with 1059; Gray, Eule against Perpetui- the same point because the contin ties, 3rd ed. §§ 340-340a. The rea- gency which would make its consid- Boning of this case only applies ©ration necessary had not arisen.; where the limitations are legal. It 458 CH.XVr] REMAINDER BY THE STATUTE ON ENTAILS [§411 subsequent limitations fell."^" If "die without issue" which introduces the limitation after the estate tail means "die with- out ever having had issue," the gift over can, of course, never take effect when issue have been bornJ* If "die without issue" means an indefinite failure of issue,'''^ the gift over is void for remoteness. Whether the gift over is on a definite or indefi- nite failure of issue, the question, arises whether at once on the birth of issue to the statutory life tenant the gift over is not destroyed by the application of the common law rule that the future interest after a particular estate of freehold, which may take effect as a remainder, shall never be permitted to take effect in any dther way J® '6 See Wilkes v. Lion, 2 Cow. (N. ^^ Post, § 549. * Y.) 333. 78 For a discussion of this rule TOWinchell v. Winehell, 259 111. and its possible application, see -amte, 471. For the circumstances under §^05. which such a construction is proper, see post, § 540. 459 CHAPTER XVII. RULE IN SHELLEY'S CASB.i TITLE I. statement of the eule anb its application. Topic 1. In Gbnbbal. §412. The Rule in force in Illinois stated: The Bule in Shdley's Case is in force in this state.^ This Rule is not a mod- 1 The origin and history of the Eule have been dealt with ante, §§ 34, 35. In Baker v. Scott, 62 111. 86, 95, 96, our Supreme Court touched upon some of the sugges- tions which have been made to ex- plain the existence of the Rule. See also, post, §§ 423, 424. In Alters v. Clark, 184 111. 136, 137, the court ' observed (quoting from Washburn on Eeal Property, Vol. 2, p. 242) that the limitations to which the Bule applied would, without the ap- plication of the rule, give a life es- tate to A and a contingeiit remain- der to A 's heirs. This actually hap- pened in Aetna Life Ins. Co. v. Hop- pin, 249 111. 406; 214 Fed. 928; Benson v. Tanner, 276 111. 594. , 2 Baker v. Scott, 62 111. 86; Bris- lain V. Wilson, 63 111. 173; Biggin V. Love, 72 111. 553, 556, semble Eyan v. Allen, 120 111. 648; Car penter v. Van Olinder, 127 lU. 42 Hageman v. Hageman, 129 111. 164 Fowler v. Black, 136 111. 363; Van gieson v. Henderson, 150 111. 119 Davis 1). Sturgeon, 198 111. 520 Deemer v. Kessinger, 206 111, 57 McFall V. Kirkpatriek, 236 111. 281; Lord V. Comstoek, 240 111. 492; Wal- lace V. Foxwell, 250 III. 616; Win- ter V. Dibble, 251 p. 200; Smith v. Smith, 254 lU. 488; Nowlan v. Now- lan, 272 111. 526; Greenough v. Greenough, 284 ill. 416. In all the above eases the limitations were substantially, to A for life, remain- der to A's heirs, and the rule was applied, the ultimate result being that A had a fee simple. In Bigelow v. Cady, 171 111. 229, the heirs of the testator filed a bill for partition. A demurrer by the administrator with the will annexed (on the ground of insufficient par- ties, presumably) was overruled. This was affirmed upon the ground that the complainants had the whole interest. 'Professor Gray suggested to the writer that possibly this might be explained upon the ground that, by the application of the Eule in Shelley's Case, the complainants were the only persons interested. (See post, § 659, for ground upon which the court placed its decision.) 460 Ch. XVII] RULE IN Shelley's case [§ 414 ern rule founded uppn the ancient one, but it is the ancient feudal rule itself as adopted and developed by the English courts. Our Supreme Court has recognized the Rule as given by Pres- ton ^ and Jarman.* Hayes' ^ statement of it may well be added as being particularly accurate and complete : ' ' The Rule in Shelley's Case says, in substance, that if an estate of freehold be limited to A, with remainder to his heirs, general or special, the remainder, although importing an independent gift to the heirs, as original takers, shall confer the inheritance on A, the an- cestor. ' ' ® § 413. Where the life estate and remainder differ in quality (one being legal and the other equitable) the BtQe does not apply: "The rule," says Hayes,'' "assumes and founds itself upon two pre-existing circumstances, — a freehold in the an- cestor, and a remainder to the heirs. The absence of either of these ingredients repels the application of the rule; their con- currence irresistibly invites it." The fact that a remainder is required admits the application of the Rule where the estates are all legal. It excludes its application in the case of limitations diifering in quality, the one being legal and the other equitable.® § 414. Where the remainder is not to "heirs," but to "chil- dren" the Rule does not apply: The fact that a remainder to heirs is required excludes the application of the Rule in the case where the remainder is, to quote again from Hayes,' "to sons, children, or other objects, to take, either as individuals' or as a class, under what is termed a descriptio personae, as distin- guished from a limitation embracing the line of inheritable suc- cession." Whether or not the second limitation is a remainder 3 Baker v. Scott, 62 111. 86 at p. expositions of the Eule see Bails v, 90, 91; Brislain v. Wilson, 63 111. Davis, 241 111. 536, 539, 540, and 173, citing 1 Preston on Estates, Winter v. Dibble, 251 111. 200, 221. 264. r 1 Hayes on Conveyancing, 5th * Lehndorf v. Cope, 122 111. 317 ed. 542. to 331 ; citing Jarman on Wills, 5th s Baker v. Scott, 62 111. 86, 93- ed. 332. 94, semhle; Eyan v. Allen, 120 111. « 1 Hayes on Conveyancing, 5th 648, 653, semble; Glover v. Condell, ei 542. ,163 111. 566, 588, semble; Harvey "The scheme of this chapter and v. Ballard, 252 111. 57; Smith v. much of the substance of the dif- Smith, 254 111. 488, 493, semble. ferent sections is founded upon the 9 1 Hayes on Conveyancing, 5th exposition in 1 Hayes' Conveyanc- ed. 543. ing 5th ed. 542 et seq. Tor other 461 §415] FUTURE INTERESTS [Ch. XVII to the "heirs" as distinguished from "sons or children" is purely a question of the construction of the instrument accord- ing to proper rules and principles of interpretation. Even the word "children" aided by the context may mean "heirs." ^^ It must, however, be an unusual case where this can happen. It is noticeable that, where our Supreme Court has been urged to give such a cqnstruction to the word "children," it has usually refused to do so.i* On the other hand, the word "heirs," restrained by the context, may have only the force of the word "children," in which case, of course, the Rule has no appli- cation.12 This again is the unusual and exceptional result, where the word "heirs" is used. There must be something on the face of the instrument to indicate with a sufficient degree of plainness that "children" is meant.^* § 415. Where the grant or devise Js "to A and his heirs" the Rule has no application : Here a fee is created, in A by the formula of words required by the feudal land law.^* The Bule in Shelley's Case has nothing to do with the result.^^ There is no life estate and no remainder to the life tenant's heirs. Of course, if the contention is being put forward that A has only ID Dick V. Bicker, 222 111. 413 For other instances where " heirs " (remainder to children of life ten- ant 'a body in fee tmi) . 11 Beaeroft v. Strawn, 67 111. 28 Griswold v. Hicks, 132 111. 494 Schaefer v. Schaefer, 141 HI. 337 Hanes v. Central 111. Utilities Co., 262 111. 86. 12 Morris v. Phillips, 287 111. 633. Our Supreme Court, in Butler v. Huestis, 68 111. 594, goes very far in declaring that "heirs of the body" means "children"; the grounds being that the words were used in the exercise of a power and that the remainder was lim- ited "at and after" the life ten- ant 's decease. Beslay v. Engel, 107 111. 182 is, according to the subsequent case of Carpenter v. Van Olinder, 127 111. 42, 51, to be explained on the ground that "heirs" must there have been construed "children." is construed children, see post, § 574 note. 13 Cases where ' ' heirs ' ' is used and the court holds rigidly to its technical meaning: Fowler i;. Black, 136 111. 363, 374-375; Davis v. Stur- geon, 198 111. 520, 522; Vangieson V. Henderson, 150 111. 119, 121; Hageman v. Hageman, 129 111. 164, 168; Carpenter v. Van Olinder, 127 111. 42, 53; Kyan v. Allen, 120 111. 648, 654 ; Deemer .v. Kessinger, 206 111. 57; Crabtree v. Dwyer, 257 111. 101. Observe also the expressions of the court iii Wolfer v. Hemmer, 144 111. 554, 560; Ewing v. Barnes, 156 111. 61, 67 ; Silva v. Hopkinson, 158 111. 386, 389. i*'Ante, §§153, 158. "Johnson v. Buck, 220 111. 226; Morton v. Babb, 251 111. 488; Forbes v. Forbes, 261 111. 424. 462 Ch. XVII] RULE IN Shelley's case , [§ 417 a life estate with a remainder to his heirs, it might be replied that, assuming sneh a situation, the Bide in Shelley's Case would give A the fee.^® In at least three cases,^'' however, our Supreme Cou!rt appears to have applied the Eide in Shelley's Case to give A the fee where the conveyance ran "to A and his heirs." ^® The danger of introducing an issue of the application of the Rule in Shelley's Case in this class of cases appears from Bissman v. Wierth?^ In that case there was a devise to the wife "and to h^r heirs and assigns forever," with subsequent language in- dicating that the wife was to have only a life estate. Then there was a clearly expressed gift over to the ' ' above named persons. ' ' The court having held that the Rule in Shelley.'s Case applied to give the wife a fee, affirmed a decree which gave the prop- erty to the wife 's heirs as against the named devisees. The Rule in Shelley's Case had nothing to do with the limitations unless they could be construed as giving the wife a life estate with a 'remainder to her heirs.?'* But whatever view be taken of the •wife's estate there was a clear gift over to the named devisees upon her death which was good as a remainder after a life estate or as a shifting executory devise. § 416. It does not, however, prevent the application of the Rule that other estates or interests are inserted between the life estate and the remainder to heirs: This is clear from a number of cases.^^ "What the operation of the Eule is in such ea?es is considered, post, § 440. § 417. The Rule applies though the life tenant takes a part interest in the estate for life and a remainder in the whole,22 or the entire interest for life and a part interest in the re- 16 Baker v. Scott, ^2 III. 86; and her heirs for life, the court con- Lehndorf i;. Cope^ 122 1111 317; strued it as creating a life estate Wolfer V. Hemmer, 144 111. 554, . and not as giving A a life estate 559. with a remainder to her heirs.' " Ewing V, Banes, 156 111. 61 ; 21 McFall v. Kirkpatrick, 236 111. Silva V. Hopkinson, 158 111. 386; 281; Hanes v. Central 111. Utilities Davis V. Sturgeon, 198 111. 520. Co., 262 111. 86; Carpenter v. Hub- is See the 'comments of Lessing bard, 263 111. 571. Bosenthal, Esq., in 28 Chicago Le- 22 Bails v. Davis, 241 111. 536 gal News, p. 258. Wallace v. I'oxwell, 250- 111. 616 19 220 111. 181. Fuller v. Chamier, L. B- 2 Eq. 682 20 In Miller v. Mowers, 227 111. Hess v. Latin, 7 Oh. Dee. 300 ; Kepr 392, 403, where the deed ran to A ler v. Eeeves, 7 Oh. Dec. Eeprint, 463 Ch. XVII] BULB IN Shelley's case [§ 418 body" to mean children. The court, howevfer, said: "If the word 'heirs,' when used the second time in the deed in the granting clause, cafi with certainty be said to mean, 'heirs of their bodies,' as expressly stated immediately following the names of the grantees, then the Rule in Shelley' sCase, as at com- mon law, would have no application, our statute expressly provid- ing in such case that he who would hy the common law have taken a fee tail, shall become seized for his iiatural life only, and the heirs of his body, tenant^ in tail according to the common law, take the fee." In McCampbell v. Mason^'^ the limitations in- volved Were .to the parties of the second part for life "and to the issue, or heirs of the bodies respectively, of said parties of the second part in fee simple," with a gift over if any of the parties of the second part died without leaving issue or heirs of the body, then his portion to go to the surviving party or parties of the second part respectively for life, "an'd then to the issue or heirs of the body of such survivor or survivors in fee simple," with a gift over if all the parties of the second part died without leaving issue or heirs of their bodies, "to the heirs of the said party of the first part. ' ' It was assumed without argument that the Rule in Shelley's Case did not apply and that an estate tail was therefore not created and that the remainder , in fee to the heirs of the bodies in fee simple was a contingent remainder. This was the actual holding of the case and regarded as necessary not only to support the validity of the ultimate gift and avoid the objection that a fee on a fee was being created by deed, but also in order that the contingent remaindermen might be bound by decree by representation, to which they were not made . parties. The court said : ' ' Such construction, we think, is plain, viz., that the persons who were to take the remainder on the death of either of the life tenants was left dubious and uncertain, so that until such death, it is impossible to ascertain the persons to- whom the remainder will go. If at the death of a life tenant, he or she has issue or heirs of his or her body surviving, it goes to such issue, but if not, it goes to the surviving life tenants for their lives, with remainder in fee to their issue or the heirs of their bodies. It thus- seems to be plain that the remainder granted to the grantor's grand- children, so long as the parent is surviving, is contingent, and 27 151 m. 500, 510. Kales rut. Int.— 30 435 § 418] FUTURE INTERESTS [Ch. XVII that it could only become vested upon the death of the parent leaving surviving children or descendants." After the pre- vious dicta and decisions this would seem to rest naturally upon the ground that the Bute in Shelley's Case was abolished so far as it applied at common law, where the remainder was to the "heirs of the body'_^' of the life tenant.^* In Dick v. Richer, ^^ the deed ran to Eliza and the children of her body, to have and to hold to Eliza for life and then to the children of her body in fee tail. This was held to create a fee tail, but not because the Rule in Shelley's Case applied. The court said : "It has been held by this court that the RvXe in the Shelley Case did not ap- ply to an estate tail in this State for the reason that our statute had provided to the contrary." In Aetna Life Insurance Co. v. Hoppin,^" the Illinois Supreme Court had two grounds for hold- ing that the Rule in Shelley's Coise did not apply. One was that the words "heirs of the body" were used as words of purchase by reason of the superadded words of limitation, "their heirs and assigns." The second reason, which the Supreme Court as a matter of fact put first, was that the Ride in Shelley's Case would never apply where the remainder was to the "heirs of the body" of the life tenant, for the reason that the Rule in Shelley's Case had been abolished by the indirect effect of the Statute on Entails. This meant that in no case of a remainder to the "heirs of .the body" of the life tenant would the Rule in Shelley's Case apply, even though there were no superadded words of limitation at all. This position was made very clear by Mr. Justice Dunn, speaking for the court: "The appellees have cited section 6 of the Conveyance Act as decisive of this case. This section abolished, estates tail, and with them the Bide in Shelley's Case as applied to such estates. * * * That Rule applies in' this state only to fees simple. Under the opera- tion of the Rule where in force as to estates tail, a conveyance to one for life with remainder to the heirs of his body is the same as a conveyance to one and the heirs of his body, and the 28 In recent cases where the limi- Henderson v. Harness, 176 111. 302; tations were substantially to A for Welch v. Welch, 183 HI. 237; Lan- life with remainder to the heirs of caster v. Lancaster, 187 HI. 540. the body, of A, it was assumed by See also Hall v. Hankey, 174 Fed. "the court that the limitations stood 139. as expressed, the Riile in Shelley's 29 222 111. 413, 420. Case not even being mentioned: so 249 111. 406, 411; 2UFpd. 928. 466 Ch. XVII] RULE IN SHELLEY'S CASE [§418 first taker Las an estate tail, which is an estate of inheritance. In this state, however, where the Bide is nat in force as to estates tail, the conveyance operates according to its terms, and the first taker has a life estate, only. Section 6 has no application to this case, because it refers only to ' cases where, by the common law, any person or persons might hereafter become seized in fee tail, ' etc., and this is not such a case.'.' In Cooper v. Cooper,^^ there was nothing inconsistent with these dicta and decisions. In that case one of the deeds involved seems to have created a life estate in William Cooper and a life estate in his wife, and then a remainder to the heirs of the body of William Cooper "in fee simple, forever, and to their heirs and assigns." One expression of the court seems to indicate that these limitations "under our statute" conveyed a remain- der in fee simple absolute to the heirs of the body of William Cooper. It is hard to tell whether this means "under the stat- ute providing that a fee simple may be limited without words of limitation," or whether it means that the Statute on Entails applies. In any event, it is entirely immaterial in the case be- cause William Cooper had died, the heirs of his body had been ascertained, and their remainder had vested, and there was no question whatever which would depenH upon whether the re- mainder was created by the language used> or by the Statute on Entails., There is nothing in this case, therefore, to indicate that the Bule in Shelley's Case applied where the remainder was limited to the "heirs of the body" of the life tenant. Nor is there anything in Voris v. Sloan,^^ to indicate that the Bule in Shelley's Case applies where the remainder is to the "heirs of the body" of the life tenant. In that case the limitations were to Francis and Samuel Voris as trustees, in trust for "the use and behoof solely of the said Christiana Morton and the heirs of her body forever; and upon the decease of the said parties of the second part, then the legal title to the said premises is to be and remain in the said Christiana Morton during her nat- ural life, with a remainder to the heirs of her body; and in case she should die without issue, then, in that case, the legal title to revert to the said party of the first part or his heirs." .These limitations were taken as if they created an active trust, although as the statement goes, the trust would seem to be pas- si 76 III. 57, 61. 32 68 111. 588. 467 § 418] FUTURE INTERESTS [Ch. XVII sive and executed by the Statute of Uses. Mrs. Sloan, as the life tenant and as the guardian for her children, filed a bill to have the property sold. The surviving trustee was the only party defendant. The sale was ordered and it was decreed that out of the proceeds Mrs. Sloan should receive the value of her life estate and hold the balance as guardian for her children. This was affirmed except that it was held that on the death of two children already deceased, their shares descended to their mother in part, who was entitled on that ground to a portion of the principal. This could only be supported on the theory that the children took absolute indefeasible interests when bprn. The court received no aid from any counsel opposed to the interests of Mrs. Sloan, the life tenant. No basis upon which the children took an absolute and indefeasible fee on birth is directly stated by the court. The clearest ground upon which this assumption was made is that the gift over "in cas^ the life tenant should die without issue," by reference caused "heirs of the body" to mean "issue." The result of this would be that each issue on birth took a vested and indefeasible interest, subject only to open and let in other members of the class. Voris v. Sloan can- not possibly go upon the ground that the Statute, on Entails applied, because the court held the children took not only abso- lute, but also indefeasible interests, while in the very next case reported, Butler v. Huestis,^^ the court distinctly declared that the remainder created by the Statute on Entails was subject to be defeated by the death of children before the life tenant. The words of the court are: "Mrs. Huestis, under our statute [on entails], would take a life estate in the property, and the re- mainder would pass in fee simple absolute to her children, al- though it might open to let in afterborn children, and le divested as to such as should die before the determination of the life estate." If, therefore, the holding of Voris v. Sloan, that the children take absolute and indefeasible interests on birth de- pended on the Statute on Entails, then it is absolutely contra to the above dictum^ in the very next case of Butler v. Huestis, decided at the same time. It is, not necessary to place our Su- preme Court in the position of such inconsistency. The way out is the explanation just given, that the gift over in Voris v. Shan, 'if the life tenant should die without issue," causes "heirs of 33 68 111. 594, 598. 468 Ch. XVII] bulb lisr shelley's case [§ 419 the body" to be construed "issue." It is true that the Court in Voris V. Sloan said : ^* " Had the deed contained no limitation over to the grantor or his heirs, then it is manifest that, by the statute de donis, the heirs of her body would have taken an estate tail, but as entails have been abolished by our conveyance act they would at birth have taken a fee." It is very difficult to tell what this means. The following explanation is believed to be correct: Omitting the gift, there would have been a straight gift to A for life, remainder to the heirs of her body. Assuming the Bvle m Shelley's Case did not apply, A would have a life estate. But what estate would the heirs of the body have had by way of remainder ? Under the common law strictly they would have had a remainder in tail. The Statute on IJntails would, then, apply to this remainder in tail to the heirs of the body of the life tenant, turning the remainderman in tail into tenants for life, with a further remainder in fee simple to the heirs of their bodies. The court, however, regarded this as an absurd result. It regarded the indirect effect of the Statute on Entails as sufficient to warrant the holding that when the heirs of the body of the life tenant took in remainder they would take a fee simple, as if the words of limitation indicating a fee sim- ple had b^en added, thereby terminating a further entailing at once. In Lehndorf v. Cope,^^ however, the deed ran to "M. A. L. and her heir^ by her present husband, H. L. " This was held to give M. A. L. a fee tail special at common law, which the Statute on Entails turned into a life estate to M. A. L., and a remainder in fee to the bodily heirs of herself and her husband. The court then said that even proceeding upon the supposition that M. A. El. took a life estate by the original limitation the re- sult would be the same, since M. A. L., by the Rule in Shelley's Case, "would at common law be seized of an estate in fee tail and brought directly within the terms of section 6 of the Conveyanc- ing Act." § 419. There are three grounds for insisting that the Rule does not apply where the remainder is to the "hejrs of the body" of the life tenant: First: Estates tail have in effect been abolished by the Statute on Entails. Hence the application of the Rule in Shelley's Case, which would result in an estate tail, should be denied as a necessary effect of the Statute on En- 3* 68 lU. 588, 592. ss 122 lU. 317, 331. 469 § 419] FUTURE INTERESTS [Ch. XVII tails.3* Second: When it was first stated in Baker v. Scott, ^"^ that the Rule in Shelley's Case did not apply where the remain- der was to the "heirs of the body" of the life tenant, our Su- preme Court very likely read the Statute on Entails as creating a life estate in the first taker with a remainder to the "heirs of his body" in fee. Indeed, this was the literal force and effect of the statute.' 8 If, then, the Rule in Shelley's Case applied to create an estate tail, the statute would turn the limitations back into exactly what they were before the Rule applied. This was absurd and incongruous. Naturally it was avoided by re- garding the B%le in Shelley's Case as abolished by the Statute on Entails so far as the case of a remainder to "the heirs of the body" of the life tenant was concerned. There is stiU a third ground for the refusal to apply the Rule m Shelley's Case. It is the incongruity of result in using one rule to defeat the settlor's or testator's intention in order to apply another rule which does the same thing. Thus, where the remainder is to the heirs of the body of the life tenant, the intent of the testator is twice defeated. The RiUe in Shelley's Case defeats it by giving A an estate tail, and then the Statute on Entails defeats it by turning it into a life estate in A and a vested and indefeasible remainder to his children on birth thereby destroy- ing any remainder limited over after A's death without heirs of his body at his death.'* The intent of the testator may be shattered even more violently. Suppose, for instance, that the limitations are to A for life, remainder to the heirs of the body of A, but if A dies without heirs of his body at his death, then to B and his heirs. Suppose that A died without issue surviv- ing him after having had issue. If the Rule in Shelley's Case applies A will take an estate tail with a gift over on a definite failure of issue. By the statute A will take a life estate with a remainder in fee in his children, vested in them indefeasibly upon birth, and the gift over, by force of the statute, will be destroyed and the heirs or devisees of A's children (their spouses included) will take. This is ruining the testator's intention with a vengeance. 30 Compare the reasoning upon st 62 111. 86, 98. which the rule in Wild's ease, ^^ Ante, §405. which operated to creatp an estate sa Ante, § 411. tail was eliminated from the law of this State, post, § 562. 470 Ch. XVII] BUUE IN Shelley's case [§ 420 § 420. The recent cases, however, hold that the Rule does apply where the remainder is to "the heirs of the body" of the life tenant: "When it was settled that the statutory re- mainder created by the Statute on Entails vested indefeasibly in the children of the first tenant in tail upon birth *" one of the reasons for holding that the Bide in Shelley's Case did not apply when the remainder was to the heirs of the body of the life tenant failed. The question then arose whether the other reasons were sufficient. Kecent cases have assumed without discussion that they were not. In Moore v. Beddel,^^ the limitations were to Marshall Brown for life "with remainder to the heirs of the body of said Marshall Brown and their assigns forever." The question of the appli- cation of the Biile in Shelley's Case was not mentioned by the court. Nevertheless, the decision necessarily starts with the assumption that the Bule in Shelley's Case did apply and gave to Marshall Brown a fee tail by the common law, upon which the Statute on Entails then operated. This assumption appears to have been promoted by the admissions and argument of coun- sel for the appellants, who were vitally, interested in the non- application of thei Bule in Shelley's Case. An examination of the briefs filed on behalf of these appellants shows~'that counsel in- sisted that the Bule in Shelley's Case did apply and that an estate tail was created. If Moore v. Beddel stood alone it might be seriously doubted that the Supreme Court intended to go l)ack upon the line of precedents already established to the effect . that the Bule in Shelley's Case would not apply. An assumption of the court induced by a clear admission of counsel could hardly be regarded as making the law of the state and of overruling a line of consistent dicta and actual decisions holding contra to counsel's admissions. In ^inchell v. Winchell,*^ however, decided at the same term of court as Moore v. Beddel, and with an opinion by the same justice who wrote the opinion in Moore v. Beddel, our Supreme Court held and in terms declared that the Bule in Shelley's Case would apply where the remainder was to the heirs of the body of the life tenant. The limitations in Winchell v. Winchell were to Fannie ^Eor life ' ' and at her death to go to her heirs ; but in «^Ji*e, §406. 42 259 111.471- « 259 111. 36. ' " 471 § 420] FUTURE INTEEESTS [Ch. XVII case she shall die without issue, then the property above devised to her shall go to my other heirs, share and share alike." "Heirs" in the remainder to Fannie 's heirs was construed heirs of the body, and the limitations are to be read as if the re- mainder was limited to the heirs of the body of the life tenant. Fannie filed a bill to quiet her title as against her daughter and brother, the latter representing those who might be entitled upon the gift over if Fannie died without issue. The decree was that Fannie was entitled in fee simple and that there was no other interest present or future. On a writ of error by the daughter this was reversed and remanded with directions to enter a decree that Fannie had only a life estate with a Vested remainder in fee in her children subject to open and let in other children that might be born, and that the gift over if Fannie died without issue could not take effect. This direction can only rest upon the ground that the Rule in Shelley's Case applied so that an estate tail was created upon which the Statute on Entails might operate so as to create, under the rule of Moore v. Bed- del, a remainder in Fannie 's children vested as soon as born, and indefeasibly vested except so far as the same was subject to open and let in other children. If the Bule in Shelley's Case had not applied, then the Statute on Entails would not have applied and the remainder would have been contingent to those persons who answered the description of heirs of the body of the life tenant at the life tenant's death.*^ The gift over would have been valid as a contingent remainder which was sure to take effect, if at all, at the time of the life tenant's death if the life tenant then died without issue surviving. The court, by Mr. Justice Cartwright, said, that "it [the Ride in Shelley's Case] has been abolished as to estates tail by the sixth section of the Conveyance Act. As to limitations controlled by that section, the only use made of the rule is for the purpose of determinuig whether by the common law a fee tail would have been created. If it would, the person who would have been seized in fee tail is seized for her or his natural life, only, and the remainder passes in fee simple absolute to the person or persons to whom the remainder is limited. ' ' ** *' Aetna Life Ins. Co. v. Hoppin, NOTE; When a remainder to 249 111. 406, 473; 214 Ted. 928. "hairs" of the Ufe tenant is con- **Eichaardson v. Van Gundy, 271 strued to mean "ihevrs of the body" 111. 476, aocord. of the life tenant: Where there is 4T2 Ch. XVII] RULE IN Shelley's CASE [§421 Topic 3. Where the Remainder Is to "Heirs," or "Heirs of, the Body" op the Life Tenant, to What Extent Can "Heirs," OR "Heirs op the Body" Be Construed to Be Words op Purchase and Not Words 'of Limitation and the Appli- cation OF THE Rule Thereby Avoided. §421. Conflicting results of the cases: It has been held that the Rule in SheUey's Case does not apply where the remain: der is limited to the Ijfe tenant's "heir male" (in the singular number) with superadded words of limitation, such as "and the heirs of such heir male." *^ So, if the remainder is to the life tenant's heir (in the singular number) "for life," the Sule in Shelley's Case does not apply.** In Evans v. Evans *'' the re- mainder was limited to " such person or persons as at the decease of the said A [the life tenant] shall be his heir or heirs at law, and of tne heirs and assigns of such person or persons." Sir Howard Elphinstone ** supports this as within the precise scope of Archer's case*^ because the remainder is to the "heir." in the singular number and words of limitation are superadded, , together with the direct reference to the "person or persons" who answer the particular description. The wor,d "heirs" in the plural is disregarded because it is inconsistent with the ex- plicit provision that the "person or persons" answering the particular description are to take in fee as a new stock of descent. There is much, however, in the opinion of the court to lead one to conclude that the Rule in Shelley's Case was re- a gift to the testator's daughter for only in case she died without leav- life with a remainder to the life ten- ing heirs of her body. See also ant's "heirs," and a gift over if Winter v. Dibble, 251 lU. 200, 216. the life tenant dies without issue to *5 Archer 's case, 1 Co. 66b ; Willis "my other heirs," the remainder to v. Hiscox, 4 My. & Cr. 197; Gierke the heirs of the daughter means v. Day, 'Moorfe, 593; Greaves v. "heirs of the body." (Winchell v. Simpson, 12 W. E. 773, 10 Jur. N. Winehell, 259 111. 471.) But in Ahl- S. 609. field V. Curtis, 229 111. 139, where ^e white v. Collins, Comyn's Hep. the limitations were to the testa- 289; Pedder v. Hunt, 18 Q. B. D. tor 's daughter and ' ' then to ' her 565. heirs," with a gift over if the *7 [1892] 2 Ch. 173. daughter died ' ' leaving no heirs of 48 9 Law Quart. Eev. 2. her own," it was held that the « 1 Co. 66b. daughter took a fee with a gift over 473 §421] FUTURE INTERESTS [Ch. XVII garded as not applying in the case where the remainder was "to the person or persons who should be the life tenant's heirs at law and their heirs and assigns. ' ' In several American jurisdictions there are eases supporting the holding that the Rule does not apply to such a remainder.^* In Maryland, .however, it has re- cently been held that the Eule does apply to such remainder. ^^ It has been held that the Rule applies when the remainder is lim- ited to the life tenant's "heir" (in the singular number) omit- ting the subsequent words of limitation, such as ' ' and the heirs of such heir, ' ' ^^ and it makes no difference that the remainder is to the "heir" (in the singular number) "forever." ^* It has been held also that the Rule applies when the remainder is "to heirs of the body" with the words of limitation superadded, such as "and their heirs and assigns forever, "^^ or to "heirs and their heirs and assigns " or " in fee simple. ' ' ^^ But the holding in the English cases was formerly that a remainder to "heirs of the body" as tenants in common, with words of limitation super- Bo Peer v. Hennion, 77 N. J. L. 693 (remainder "to such person or persons as shall be her heir or heirs of lands held by her in fee sim- ple"); Taylor v. Clea^y, 29 Gratt. (Va.) 448 (remainder "to such per- son or persons as shall at that time [the death of the life tenant JJ] an- swer the description of heir or heirs at law of the said -B, and such per- son or persons shall take the said land under that description as pur- chasers under and by virtue of this deed and not by inheritance as heirs of the said S") ; Earnhart v. Earn- hart, 127 Ind. 397 (remainder "to the persons who would have inher- ited the same from the said" life* tenant "hafl he owned the same in fee simple at the time of his death"). In Eobinson v. Le Grand & Co., 65 Ala. Ill, it was provided that after the life tenant's death the land "shall pass according to the Statutes of Descent and Distri- bution of the State of Alabama now in force. ' ' The Eule did not apply. Geist V. HuffendieV 272 111. 99 (remainder for Ufe of another "shall descend in accordance with the laws of Illinois"). 51 Cook V. Councilman, 109 Md. 622 (remainder "to such person or persons as would, under the laws of the State of Maryland, inherit the same as the heirs of my said nephew [the life tenant] if he had died in- testate seized in fee thereof"). 62 Eichards v. Bergavenny, 2 Vern. 324; Theobald on Wills, 7th ed. 422. =3 Puller V. Chamier, L. E. 2 Eq. 682. 5* Jessou V. Wright, 2 Bligh. 1 ; Doe V. Harvey, 4 B. & C. 61,0; Mills V. Seward, 1 J. & H. 733; Clark v. Neves, 76 S. C. 484; Carroll v. Burns, 108 Pa. St. 386; Kepler v. Larson, 131 la, 438. BB Bonner v. Bonner, 28 Ind. App. 147; Brown v. Bryant, 17 Tex. Civ. App. 454; Powler v. Black, 136 111. 363; Winter v. Dibble, 251 111. 200. 474 Ch. XVII] EULB IN Shelley's case [§421 added, prevented the application of the Rule,^^ and some Ameri- can jurisdictions seem to have gone so far as to hold that the Eule did not apply where only words "were added to the effect that the heirs of the life tenant were to take equally as tenants in common.^'' In some American jurisdictions it has been held that the rule does not apply when the remainder is "to heirs of the body" with the superadded words of limitation, such as "and their heirs and assigns forever"^* or "in fee simple."'" Suppose now the remainder were limited to "heirs" with words of limitation superadded, such as "and their heirs and assigns forever," and then it was expressly stated that heirs were to take as purchasers in fee simple, and thereby become a new stock of descent, and that the word heirs was used as a word of purchase and not as a word of limitation. Would the Rule apply ? Clearly not in the jurisdiction holding that the Rule does not apply where the remainder is to heirs with words of limi- tation superadded. But in jurisdictions holding that the Rule does apply even where the remainder is to heirs with words of limitation superadded, what would the court do? Butler,**' Fearne,^! Preston,62 and Sugden *» aU seem to have thought the Rule would not apply in such a case; On the other hand, Lord ^ Commissioner Wilmot ** seems to have been quite positive that the Rule would apply. The Law Lords in the recent case of Van Grutien v. Foxwell ^^ seem to leave the question open. Lord Davey seems to say the Rule would not apply ; ^* Lord 58 Doe V. Laming, 2. Burr. 1100 ; C. 290 ; Butler v. Huestia, 68 111. Crump V. Norwood, 7 Taunt. 362. 594; jEtna Life Ins. Co. v. Hoppin, 57 Surges V. Thompson, 13 B. I. 249 111. 406, 412-413; 214 Fed. 928. 712 (remainder to life tenant 'a ^9 Westeott v. Meeker, 144 la. "heirs at law, him surviving, share 311; Archer v. Brockschmidt, 5 Oh', and share alike"); Simonton v. N. P. 349. White, 93 Tex. 50 (remainder "to so Butler's Notes Co. Lit. 376b be equally and impartially divided et seq. between her [the life tenant 's] bod- " Contingent Remainders, p. 189. ily heirs"). ' «2 Preston on Estates, 282. 58 DeVaughn v. DeVaughn, 3 App. es Montgomery v. Montgomery, 3 Cas. (D. C.) 50; DeVaughn v. Jones & LaT. 47, 51. Hutchinson, 165 U. 8. 566; Dott v. e* Sayer v. Masterman, Wilm. 386. Willson, 1 Bay. (S. C.) 457; Le- «= [1897] A. C. 658. macks v. Glover, 1 Eich. Eq. (S. C.) 88 Id., 685. 141; Melntyre v. Mclntyre, 16 8. 475 § 422] FUTURE INTERESTS [Ch. XVII Macnaghten that it would.^'^ Lord Chancellor Herschell is non- committal.^ ^ It is proposed to show that underlying these conflicting results are two theories with respect to the application of the Rule in Shelley's Case: The fi/rst, that it applies only when the word "heirs" in the remainder is used as a word of limitation and not as a word of purchase; the second, that the Rule applies precisely when the word "heirs" in the remainder is used as a word of purchase.89 § 422. What is meant by "heirs" as a word, of "purchase"' and as a word of "limitation": When "heirs" or "heirs of the body" are used as embracing the whole line of inheritable succession they are said to be used as words of limitation. When "heirs" or "heirs of the body" are used to designate the person or persons who would be entitled to take by descent from the an- cestor — such person or persons when thus ascertained to take as individuals because they answer that description, and, if they take in fee, to thereupon become a new stock of descent — ^they may be said to be used as words of purchase. Thus, in the com- mon case of a devise to A for life and then to the testator's heirs at law, heirs is Used to designate the person or persons who are entitled to take by descent from the testator at his death. "Heirs" is used as a word of purchase. No doubt in applying the Bide in Shelley's Case "heirs" is said to be used as a word of purchase when, in a remainder to the life tenant's heirs, it has been construed to mean "issue" or "children." It is not, how- ever, the most accurate mode of expression to say that "heirs" in such a case is lised as a word of "purchase." The word used is used as a word of purchase no doubt, but that word is "issue" or "children" and not "heirs." Let it be understood then that when in this topic reference is made to "heirs" as a word of pur- chase reference is not made to the case where "heirs" is con- strued as meaning "children" or "issue," but to the case where "heirs" is used as a word to designate the person or persons who would be entitled to take by descent from the life tenant in case the life tenant died seised and possessed of a fee simple, such person or persons when thus designated to take as individuals because they answer that description. 67 Id., 680. 69 Ante, § 35. 88 /(J., 663. 476 Ch. XVII] RULE IN Shelley's case [§ 423 § 423. The first theory of the appHcation of the Rule is that it applies only when "heirs" in a remainder to heirs is used as a word of limitation embracing the whole line of inheritable succession, and that it does not and cannot apply where "heirs" in a remainder is used as a word of purchase: According to Sir Howard Elphinstone the BvZe in Bhelley's Case jSinds its log- ical justification in the meaning of the word " heirs. " " The heirs of A [the life tenant] are not a definite coexisting group of per- , sons, but an indefinite number of persons who must take, if at all, in succession to one another. They cannot take as joint tenants or tenants in common, and there is no other way for them to take by purchase. Descent, therefore, is the only way in which they can take, and it must be descent from A."''° "The reason given by Sir Howard [for the Rule in SJidley's Case] is that there is no way in which "the heirs of A," a living person, can take as purchasers, for they are an indefinite suc- cession of persons. Therefore the only way of giving effect to such a limitation, following a freehold estate not of inheritance given to A by the same instrument, is to say that it creates no new estate, but enlarges the ancestor's estate into a fee and en- ables his heirs to take by descent." ''^ The fundamental premise in this explanation is that in 1324, ^2 when the Rule first made its appearance, "heirs" in a remainder to heirs actually did include the whole line of inheritable succession. It was naturally and primarily taken not as a word of purchase designating the indi- vidual or individuals who might answer the description of heir or heirs of the life tenant at the life tenant's death, but as a word of limitation. If this be the basis for the Rule, then it should follow that the condition which invokes the application of the Bule in Shelley's Case is the use of the word "heirs" in the remainder as a word of limitation.^ ^ It should follow also 7» Review of 4th ed. of Good- & G. 941, note (a). C/, also Pro- eve's Law of Beal Property, 14 Law vost of Beverley's case, Y. B., 40 Quart. Eev., 98. Edw. Ill, fol. 9a, b (1366), and "Beview of 5tli ed. of Good- Shelley's case, 1 Oo. 93b (1581), eve 's, Law of Real Property, 22 Law from which the Eule has its name. Quart. Rev., 333. 5 Gray's Cases on Prop., 2nd ed. '2 "The Rule in Shelley's case 83. is said to be first mentioined in 73 Butler's Notes Co. Lit. 377a; Abel's case, 18 Edw. 11, 577 (1324), Fearne, Cont. Rem., p. 189; Preston which will be found translated 7 M. on Estates, 282. 477 § 423] FUTURE INTERESTS [Ch. XVII that if the settlor made it perfectly clear by direct declaration that he used the word heirs as a word of purchase and not at all as a word of limitation, the Rule would not apply.'* From this it would logically follow that whether "heirs" in the re- mainder to the life tenant's heirs was used as a word of pur- chase or as a word of limitation would become a question of con- struction.'s The word "heirs" would be in its primary meaning a word of limitation, but a special context sufficiently clear to show that heirs was used as a word of purchase would be avail- able to give heirs a meaning which would prevent the application of the Rule. Such was substantially the position taken in Archer's case.'^* There the remainder was to the life tenant's "next heir male" and "to the heirs male of the body of such next heir male." The word "heir" in the singular number was in its primary meaning a word of limitation, so that the Bule in, Shelley's Case applied.'* But when the words of limitation were superadded to "heir" in the singular number it indicated that the person who turned out to be the heir was to take in fee or in fee tail, as the case might be, and thereupon become a new stock of descent. Hence the Rule did not apply. The Rule, in short, did not apply because upon the special context the primary meaning of "heir" as a word of limitation embracing the whole line of inheritable succession was departed from, and "heir" was upon its proper interpretation taken as a word of purchase- It logically followed that when the remainder was "to the per- son or persons who would be the life tenant's heir or heirs at law and their heirs and assigns forever," the context clearly indicated that the heir or heirs were to take in fee as a new stock of descent as purchasers and that the word "heirs" was not used as a word of limitation but as a word of purchase. Such seems to have been the position actually taken by the Court of Appeal in Evans v. EvansJ'' It would logically foUow that a remainder limited to "heirs" of the life tenant "and their heirs and assigns" or "in fee simple" would prevent the Rule from applying. This position also the English courts, under the lead of Lord Mansfield, seem to have started to take,'* and T4 Butler's Notes Co. Lit. 377a. Vern. 324; Theobald on Wills, 7th 70 Pearne, Cont. Eem. 189 ; Pres- ed. 422. ton on Estates, 282. 77 [1892] 2 Ch. 173. 70a 1 Co. 66b. 78 Doe v. Laming, 2 Burr. 1100; 70 Eichards v. Bergavenny, 2 Crump v. Norwood, 7 Taunt. 362. 478 Ch. XVII] BUUE IN Shelley's case [§ 424 some American courts have taken it.'^* Yet the later English cases, and several American courts, have distinctly repudiated it and applied the Rule in Shelley's Case.*" § 424. The second theory respecting the application of the Rule is that it applies when the word "heirs" in the remainder is used as a word of purchase: This view starts with the premise that there is no difference between the case of a life estate to A and a remainder "to the heirs of B," and the case of a life estate to A and a remainder ' ' to the heirs of A. " In both cases alike "heirs" is used as a .word of purchase to indi- cate the person or persons who answer the description of B's or A's heirs, as the case may be, at the ancestor's death. Thus Challis 8^ gives as the example of Fearne 's fourth class of con- tingent remainders, the remainder after a life estate to A "to the right heirs of J. S.," who is at that time living. He takes "right heirs of J. S." as being naturally and primarily words of purchase.' The remainder which they create is contingent because the persons who are to take cannot be ascertained till J. S. dies. The same learned author,* * in referring to the case where the remainder is limited to the heirs of the life tenant, declares that "grammatically, the construction of the second limitation [the i-emainder to the heirs] might be, to give a re- mainder by purchase to the specified heirS. And since the person whose heirs they are, or rather are to be, is living at the date of the limitation, such a remainder, if taken by the heirs as pur- chasers, would be a contingent remainder of Fearne 's fourth class, being a limitation in remainder to a person not yet ascer- tained or not yet in being. ' ' Such, it is believed, was the situa- tion in 1324 as clearly as it is today. True, under the feudal law of descent no ancestor could have more than one heir, for 'SDeVaughn i;. DeVaughn, 3 so Jesson v. Wright, 2 Bligh. 1; App. Gas. (D. C.) 50; De- Doe v. Harvey, 4 B. & G. 610; Mills Vaughn v. Hutchinson, 165 U. S. v. Seward, 1 J. & H. 733; Glark v. Neves, 76 S. G. 484; GarroU v. Burns, 108 Pa. St. 386; Kepler v. Larson, 131 la. 438; Bonner v. Bon- ner, 28 Ind. App, 147; Brown v. Bryant, 17 Tex. Civ. App. 454; Fowler v. Black, 136 111. 363; Win- ter V. Dibble, 251 111. 200. SI Eeal Property, 3rd ed. 131. 566; Dott v. Willson, 1 Bay. (S, C.) 457; Lemacks v. Glover, 1 Eich, Eq. (S. 0.) 141; Mclntyre v'. Mo Intyre, 16 S. C. 290; Butler v. Hues tis, 68 111. 594; Mtna. Life Ins, Co. V. Hoppin, 249 111. 406, 412, 413; 214 Fed. 928; Westcott v, Meeker, 144 la. 311; Archer v, Brockensohinidt, 5 Oh. N. P. 349. sa id., 152, 479 § 424] ' FUTURE INTERESTS [Ch. XVII though several females may be co-heiresses, they were in point of law only one heir.^* The same is true where the males took altogether gavelkind lands.^* Hence "heirs" in the plural was technically inappropriate as a word to designate the person or persons who would be entitled to take by descent from the life tenant. But today this technically inaccurate use of the word "h^irs" in the plural is easily overcome as a matter of con- struction wherever it is apparent that the word "heirs" is used to describe the individual or individuals who are to take as pur- chasers. It is surmised that it made no more difference in the fourteenth century than it did in the nineteenth that "heirs" in the plilral was used in limiting the remainder to the "heirs" of the life tenant or to the "heirs of J. S." In both cases alike the way in which heirs was used naturally and primarily showed it to have been used as a word of purchase and not as a word of limitation. The result, however, before 1430 of the use of the word "heirs" in a remainder to the heirs of B or of the life ten- ant A being taken as a word of purchase, was that a contingent remainder was attempted to be limited which was wholly void. The feudal system was not prepared in the fourteenth century to permit any future interest limited after a freehold to any person whose identity could not be ascertained until the termina- tion of a life then in being. The exigencies of tenure and the protection of the feudal dues forbade the practical abeyance of the fee until the death of a living person. • A special reason existed for not permitting a remainder to the heirs of the life tenant in the fact that such a remainder might be used to defeat wardship and other feudal burdens if the heirs of the life tenant came in as purchasers and not by descent from the ancestor.*^ The remainder, therefore, to the heirs of the life tenant or to the heirs of B, if the word "heirs" were taken in its natural and primary meaning as a word of purchase, must before 1430 have failed entirely.®^ The result was harsh, especially in the case of the remainder limited to the life tenant's heirs. In that case only the life estate would be left and there would be a re- version in fee to the settlor. The main object of the settlement 88 Lit. § 241. 88 Ante, § 28. 8* Lit. §265. 85 Challis on Eeal Property, 3rd ed. 167. 480 Ch. XVII] RUIJ3 IN Shelley's case [§424 would be defeated and A's family deprived. The Rule in Shelley's Case dealt with this situation, and endeavored to ameliorate the hardship of it by placing the fee or fee tail, as the case might be, in the ancestor who was named as life tenant. In view of the fact that the remainder to the heirs as purchasers was wholly void the Rule did carry out the object of the settlor as nearly ^s might be in the then existing state of the law. The ' fact that the life tenant took the fee or fee tail, so that upon his death his heirs or the heirs of his body could take by descent from him, was the only way in which the life tenant's heirs or the heirs of his body could take at all. Thus the "heirs" or the "heirs of the body" obtained through the ancestor by descent what they were given as purchasers, but which the feudal land law did not permit them to take as purchasers. Thus the Bide in Shelley's Case was actually invented to give effect to the settlor's object as neary as possible. - In this view the Rule was designed to operate when the words used would have created a contingent remainder to the "heirs" of the life tenant- or to the "heir" of the life tenant. The talk about the Rule carrying ,out the "general intent" meant only that it was better to give the life tenant a fee or fee tail than to have the entire remainder held void and the fee returned to the feoffor. The talk about "heirs" being used as a word of limitation rather than a word of purchase was a mere echo of the result reached and not at all a basis for what was actually done. It was an afterthought to bolster up a rule which gave to words of purchase an- effect some- thing like words of limitation. First, the Rule was applied when the remainder was to heirs as purchasers, and then to justify the Eule, or perhaps as merely descriptive of the effect of the Rule, "heirs" was said to be used as a word of limitation. In this view the test of the application of the Rule must always be: would the remainder be a contingejit remainder to persons who would answer the description of heir or heirs at law of the life tenant at his death in the jurisdiction where the land lies? In short, if heir or heirs is used as a word of purchase the Rule applies. The settlor might, therefore, declare as emphatically as he pleased that the heirs were to take as purchasers, and he would only the more clearly have furnished the basis for the ap- .^plication of the Rules'^ A fortiori, if the remainder were, to 8' Sayer v. Masterman, Wilm. 386. Kales Fut. Int. — 31 4gl §425] FUTURE INTERESTS [Ch. XVII "heirs" witli the words of limitation superadded, together with a direction for co-ownership, the Rule would apply .*8 The Eng- lish cases to the contrary *» were properly overruled, and Ameri- can cases to the contrary,, under the second theory, are un- sound, ^o So, if the remainder is limited "to the person or per- sons who may be the heir or heirs at law of the life tenant and to their heirs and assigns" the Rule will apply. If Evans v. Evans ^^ is contrary, it is inconsistent with our second theory. So, if the remainder is to the "heir" (in the singular number) the Rule still applies because as a word of purchase there is no difference between the remainder to the "heir" in the singular number and to "heirs" in the plural.^ ^ So, if the words of limi- tation be added to the remainder to the heir in the singular number the Rule should stiU apply. Archer's case to the con- trary is, therefore, inconsistent with this second theory. § 425. Neither of the above two theories is supported by all the results of the English cases which are now recognized as law: The second, however, seems to have, a little the best of it. The first has Archer's case,^* and perhaps the more recent case of Evans v. Evans?^ .The second theory has all the other results, including the one that a remainder to the life tenant's heirs with words of limitation superadded will not prevent the application of the Rule.®^ This last represents the triumph in 88 Jesson V. Wright, 2 Bligh. 1; Intyre, 16 S. C. 290; Butler v. Hues- Doe V. Harvey, 4 B. & C. 610; Mills tis, 68 111. 594; JEtna Life Ins. Co. V. Seward, 1 J. & H. 733; dark v. v. Hoppin, 249 111. 406, 412, 413; Neves, 76 S. C. 484; Carroll v. 214 Fed. 928; Westeott v. Meeker, Burns, 108 Pa. St. 386; Kepler v. 144 la. 811; Archer i;. Broekschmidt, Larson, 131 la. 438; Bonner v. Bon- 5 Oh. N. P. 349. ner, 28 Ind. App. 147; Brown v. " [1892] 2 Ch. 173. Bryant, 17 . Tex. Civ. App. 454 ; . ' s2 Richards v. BergaveiSpy, 2 Fowler v. Black, 136 111. 363; "Win- Vern. 324; Theobald on Wills, 7th ter V. Dibble, 251 111. 200. ed. 422. 89 Doe V. Laming, 2 Burr. 1100; as 1 Co. 66b. Crump V. Norwood, 7 Taunt. 362. m [1892] 2 Ch. 173. 80 Burges v. Thompson, 13 E. I. as Jesson v. Wright, 2 Bligh. 1 ; 712; Simonton v. White, 93 Tex. Doe v. Harvey, 4 B. & C. 610; Mills 50; DeVaughn v. De Vaughn, 3 v. Seward, 1 J. & H. 733; Clark v. App. Cas. (D. C.) 50; DeVaughn Neves, 76 8. C. 484; Carroll v. V. Hutchinson, 165' XT. S. 566; Burns, 108 Pa. St. 386; Kepler ii. Dott V. Will^on, 1 Bay. (S. C.) Larson, 131 la. 438; Bonner u. Bonr 457; Lemacks v. Glover, 1 Eich. ner, 28 Ind. App. 147; Brown v. Bq. (8. C.) 141; Melntyre v. J^To- Bryant, 17 Tex. Civ. App. 454; 482 Ch. XVII] BULB IN Shelley's case [§ 425 the nineteentli century of the second view over the first, which had already practically secured two holdings the other way.®^ Nevertheless, this is somewhat balanced by the recent result reached in Evans v. Evans,^'' if the opinion in that case be taken as afSnning the proposition that the Rule does not apply to a remainder "to the person or persons who answer the description of the life tenant's heirs at law and their heirs and assigns for- ever." On the English cases alone it seems to be a close contest between the two views. In this country it jis plain that the results reached in different jurisdictions show in a number of instances a greater tendency than in England toward the first theory. In a way both theories are being supported at the same time in single jurisdictions. Bach theory retains the results which it captures and holds. The point actually undecided in England — i. e. where the remainder is to heirs and it is expressly declared that the word is used as a word of purchase and not as a word of limitation — is still open to contest by the advocates of each view. It is probably impossible to say from any direct historical evidence which theory is the correct one. The actual historical foundations for the Rule are largely matters o:^ speculation. If we seek to determine which theory wiU produce results conform- ing to the soundest legislative policy the outcome of the contest is still doubtful. The first theory obviously limits the application of the Rule and the second extends it. In favor of restricting its application it may be said that since 1430, when contingent re- mainders have been permitted,®^ subject, however, to being de- stroyed by the termination of the preceding freehold estate be- fore the remainder vests, the Bide in Shelley's Case defeats the expressed intent and causes a remainder to the "heirs of A" to be a remainder to A in fee. Where the rule of destructibUity of contingent remainders has been abolished there is no excuse what- ever for thus defeating the expressed intention of the settlor. On the other hand, it is argued that a contingent interest in unascertained persons, especially where" those interests are legal, and especially where contingent remainders are no longer de- structible, leaves the title in a highly inconvenient state, and i'owler v. Black, 136 lU. 363; Win- S7 [1892] 2 Ch. 173. ter V. Dibble, 251 111. 200. ss Williams, Eeal Prop., 412, 413 ; '6 Doe V. Laming, 2 Burr. 1100; Gray's Eule against Perpetuities, Crump V. Norwood, 7 Taunt. 362. § 134. 483 § 426] PUTUKE INTERESTS [Ch. XVII that it is a valuable rule which will at once vest the whole fee in a living person and destroy the contingent remainder or ex- ecutory interest. § 426. If a third theory be desired which will reconcile at least all the English cases it must be formulated something like this: The Bule in Shelley's Case only applies when "heirs" in the remainder to heirs is used as a word of limitation and not of purchase. But whether the word "heirs" is so used or not is , not left to any ordinary process of construction, but is determined by certain results arbitrarily fixed by certain speci- fied adjudications which become a part of the Rule itself. Thus '"heirs" in the plural must always be taken as a word of limita- tion. It makes no difference that words of limitation are super- added, which as a matter of interpretation show that "heirs" in the remainder to heirs was used as a word of purchase. Some American cases to the contrary make the mistake of assuming that whether "heirs" in the plural is used as a word of pur- chase or of limitation was a question of construction and not the subject of a rule quite as arbitrary as the Bwle in Shelley's Case itself. So "heir" (in the singular) standing alone in a re- mainder to the heir of the life tenant must be taken as a word of limitation, so that the Rule applies; but if to "heir" in the singular words of limitation be superadded, the special context is sufficient to show 'that "heir" in the singular was used as a word of purchase and the Rule in Shelley's Case will not ap-, ply. Of course, this so-called reconciling theory is not a ra- tional explanation of the cases at all, since it is founded on an arbitrary assumption as to the meaning to be given to the word "heir" or "heirs" in order to make the particular case fit the theory. The moment it is said that the Bule in Shelley's Case does not apply unless "heirs" in the remainder is used as a Tvord of limitation and not as a word of purchase, but that there is an arbitrary rule that "heirs" in a remainder to the heirs of the life tenant must be taken as a word of limitation overriding a context which rationally makes it a word of pur- chase, we know that we are dealing with the law's roundabout way of saying that the Rule applies even though the word heirs is used as a word of purchase. All the results, therefore, which introduce an arbitrary assumption that the word "heirs" is used as a word of limitation and therefore the Rule applies, are 484 CH. XVII] -K0tE IN SHEI^LEY'S CASE [§ 427 really applications of the theory that the rule applies when the word heirs is used as a word of purchase. On the other hand, the results based upon the fact that some special context shows that "heir" or "heirs" was used as a word of purchase so that the Rule does not apply, are applications of the theory that the Rule does not apply unless the word "heirs" be in fact used as a word of limitation. Bach theory in every gene- ration seems to have had its advocates. Each has captured results which are recognized as law. Neither seems to have triumphed entirely over the other. ■ § 427. In American jurisdictions the situation is apt to be chaotic in the extreme: When there is a tendency to adopt the second theory the opportunities for logically extending the rule of Archer's case ^* are considerably increased.' It may be argued here that since, undpr the usual American statutes on descent, there is no longer one single heir but always a provi- sion for several heirs to take as teqants in commoij, the use of the word "heirs" in the plural is just the same as the use in England of the word "heir" in the singular. Hence, "heirs" in the plural in this country does not have any stronger pri- mary meaning as a word of limitation than "heir" in the sin- gular does in England. ^ On the other hand, when the Bide in Shdley's Case is applied in this country to the case where heirs in the plural is coupled with words of limitation or any other special context which showed that it was used as a word of pur- chase, the first theory is very clearly sustained, because the added rule that "heirs" must be taken as a word of limitation appears the more arbitrary and the more indefensible from the point of view of the application of rational principles of con- struction than it does m England. It is, however, impossible to say that any theory bearing upon the problem here presented has any standing in American jurisdictions. The whole matter is open to contest. Even where some results have been settled in accordance with one view, it does not follow that others will be. If the course of action followed by the English Courts be imitated there should be a fair division of results between the two theories, but what theory will get what result cannot be 99 1 Co. 66b. 1 Mtna, Life Ins. Co. v. Hoppin, 249 111. 406; 214 Fed. 928. 485 § 428] FUTURE INTERESTS [Ch. XVII known in advance. Much, if not everything, will depend upon the temper of the court when the point comes up for decision. It is even possible that with respect to the same point a given court may lean toward a' result founded upon one view at one time and toward an opposite result founded upon the other view at another time. § 428. The cases in Illinois : In Butler v. Huestis * the limi- tation after the life estate was in these words: "The reversion and fee thereof to the heirs of her body at and after her de- cease." The EwZem /S^eHej/'s Case was held not to apply. The special context consisting principally of the use of the word "fee" in the phrase "the reversion and fee thereof" was held to indicate that heirs of the body was to be taken as a word of purchase and not as a word of limitation. ^ This, of course, pro- ceeds upon the first theory.* In Fowler v. Black,^ however, we have the remainder limited in these words: "and upon the death of said party of the second part said premises to be held in fee simple by his heirs and their assigns forever. ' ' Here the Rule was applied. The court said : ' ' There is nothing in the deed which can be held, either expressly or by implication, to limit or qualify the word 'heirs,' or to give to it any other than its ordinary legal significance, viz., those persons, whoever they may be, upon whom the law at the death of the ancestor would cast the inheritance, thus including all possible- heirs, to take in succession from generation to generation, under the name of heirs of the ancestor." On the whole this result, together with the language used, supports the second theory. The court in effect says that when the word heirs is used as a word of purchase, meaning the person or persons designated by the statute as heirs at law of the life tenant, it must be taken to embrace the whole line of inheritable succession as a word of limitation, and hence the Rule in SJielU'if's Case applies. Of course, the second step is a fiction. The plain truth is that when heirs is used as a word of purchase so as to create a contingent 2 68 IlL 594. remainder was to "heirs of the 3 See also MeCampbell v. Mason, body." Ante, §418. This seems 151 III. 500. to be no longer the law in this * Another ground for the deci- state. Ante, § 420. slon was that the Rule in Shelley 's 5 136 111. 363. Case had no application where the 486 Qh. XVII] RULE IN Shelley's case [§ 428 remainder in the heirs of the life tenant as purchasers, the Rule applies. However, in ^tna Life Ins. Co. v. Hoppin,^ where the remainder was to "the heirs of the body of the said Sarah Hop- pin [the life tenant], their heirs and assigns," one ground for the decision of the court was that the Rule in Shelley's Case did not apply because "heirs" in the phrase "heirs of the body" was used as a word of purchase by reason of the added words of limitation. The court refers to the passages from Preston on Estates,^ Fearne on Contingent Remainders,® and Butler's Notes to Coke on Littleton,^ which lay it down that the Rule does not apply unless the word "heirs" be used as a word of limita- tion, and then the court relies upon Archer's case,^* Evoms v. Evans,^^ DeVaughn v. Hutehinson,^^ D&VoMffhn v. DeVcmghn,^^ Taylor v, Cleary,^* and Peer v. Henwion ^^ for the proposition that when words of limitation are added to a remainder to heirs of the body, "heirs" is used as a word of purchase and not of limitation. This, of course, is all in support of the first theory. The rehearing in ./Etna Life Ins. Co. v. Hoppin^^ was denied at the April Term, 1911. At the June Term of the Court in the same year a decision was made in the case of Winter v., Dihble.^'' There the remainder was limited in these words: after the death of the life tenants "the property shall descend to their [the life tenants'] respective heirs in fee simple absolute." It was here strongly pressed upon the court that the words "in fee simple absolute" showed that the word "heirs'* was used as a word of purchase and not of limita- tion, and therefore the Rule should not apply. The passages from Preston, Fearne, and Butler, which the court referred to in JStna Life Ins. Co. v. Hoppin, and also the cases relied upon in that case, were called to the attention of the court, to- gether with the first theory. Nevertheless, the court, relying upon Fowler v. Black, held the rule did apply, thus in fact pro- ceeding upon the second theory. In Carpenter v. Hubbard,^^ there was a devise to the testatrix's husband, Gilbert Hubbard, 6 249 III 406; 214 Fed. 928. " 3 App. Gas. (D. C.) 50. 'p. 282. 1*29 Grati. (Va.) 448. 8 p. 189. 15 77 N. J. L. 693. 9 p. 377a. 16 249 111. 406; 214 Fed. 928. 16 1 Co. 66b. IT 251 111. 200. 11 [1892] 2 Ch. 173. " 263 111. 571. 12 165 V. S. 566. 487 § 428] FUTURE INTERESTS [Ch. XVII with a reiilainder for life to the children of the testatrix and Gilbert Hubbard, with an ultimate remainder to the heirs of Gilbert Hubbard. A great eifort was made to show by the ap- plication of the ordinary rules of construction that "heirs at law" was used as a word of purchase, meaning those persons who would have been the heirs at law of Gilbert Hubbard had he died at the period of distribution— thus excluding his chil- dren as his heirs at law — and that, therefore, the Bule m Shel- ley's Case did not apply. This, however, was denied and it was held that the Rule did apply. In Moore v. Beddel,^^ the limita- tions were to A for life, remainder "to the heirs of the body of A and their assigns forever." Surely the words "and their assigns forever" were superadded words of limitation sufficient under section 13 of our Act on Conveyancing to show an intent that the heirs of the body of A were to take the fee. This point was not made by counsel. Indeed, it was assumed both by coun- sel and the court that the Bule in Shelley's Case did apply. It might have been urged in attempting to reconcile the re- sults in the foregoing cases that the superadded words of limi- tation which will prevent the application of the Bule in Shelley's Case must be the words of limitation of the common law and that " therefore the superadded words of limitation must in- clude the word "heirs." Therefore, superadded words such as "in fee simple," or "assigns forever," would be insufficient, while "heirs and assigns" would be effective. Technical as such a distinction would appear to be, there is some authority for it.2° The recent case of Benson v. Tanner,^^ however, now removes this ground for reconciling the cases. There the limi- tations were to A for Hfe "remainder in fee simple to the heirs of her body." It was held that the superadded words of limi- tation "in fee simple" were sufficient to prevent the applica- tion of the Bule in Shelley's Case?^ The cases, therefore, leave our Supreme Court in this position: If the remainder is to "heirs of the body," the first theory would be applicable, and 18 259 111. 36. the first taker had a life estate or 2« Puller V. Chamier, L. E. 2 Eq. a fee. It was held that he had a 682 (1866). life estate. This was correct wheth- 21276 111. 594; 12 111. Law Eev., er the Eule in Shelley's Case ap- 564. plied ol' not, for the limitatidns were 22 In Doney v. Clipson, 285 111. to A for life and then to the heirs 75, the only question was whether of his body in fee simple forever. 488 Ch. XVII] rum: in Shelley's case [§ 429 a special context which showed that heirs of the body was, as a matter of construction, used as words of purchase and not as words of limitation, would be sufficient to prevent the Rule from applying.^* But if the remainder is to "heirs" generally, the second theory is applicable and the Rule applies precisely when heirs is used as a word of purchase, meaning the person or per- sons who would be entitled to take by the Statute on Descent, from the life tenant. It would make no difference that the super- added words of limitation included the word "heirs." 2* This is simply a new way of dividing, the results obtained equally between the first and second theories. It is hard to say that it is not just as rational as the division of results which the English cases have reached. The important thing always is that neither theory should triumph over the other. There should always be, in every jurisdiction, the possibility of getting re- sults according to each theory until all possible variations which may occur have been passed upon and each theory awarded the results to which it is to be entitled for all time to come. 1 Topic 4. "Wheee the Interests Abe Equitable — Exbcutoey Trusts. § 429. The Rule applies where the limitations are equita/ble : The Rule in Shelley's Case was of purely feudal origin, dating at least from the year 1324.2^ Modern equitable interests in land, however, commenced about the middle of the 17th cen- tury .2 s It is not surprising, therefore, that at the beginning of the 18th century.it should still be a matter of doubt under the decisions whether the Rule in Shelley's Case would be held to apply where the limita!tions were equitable. As a matter of fact Lord Hardwicke undertook in Bagshaw v. Spencer,^'' to hold the Rule in Shelley's Case would not apply where the limi- ts In view of this, the assump- ant] in accordance with the laws of tion by counsel in Moore v. Eeddel, Illinois. ' ' Qiiaere, whether the Eule 259 111. 36, that the Eule did not in Shelley's Case applied, apply, was unfortunate. "^ 25 Ante, §§ 34, 35. 2« In Geist u. HufEendick, 272 111. 26' 240 Dl. 492. '« Ante, i 429. *i Gushing v. Blake, 30 N. J. Eq. 3i4nte, 1420. 689. 491 § 433] FUTUEE INTERESTS [Ch. XVII Shelley's Case will not apply, may thus be stated: Even if the terms of the trust require a settlement or conveyance to be ex- ecuted by a trustee, yet if the testator has acted as his own conveyancer and defined precisely the settlement to be made, then a court of equity has nothing to do but to direct a settle- ment according to the directions and the trust is not executory in any sense which ^prevents the application of the Bule in Shel- ley's Case. The trust is executory, so that the Rule in Shelley's Case does not apply only where a settlement is to be executed or a conveyance made by the trustee and where there is an in- formal or imperfect indication as to what that settlement is to, be, or where the language used to describe the settlement to be made is not intended by the settlor or testator to be taken in its strict legal sense. This statement of what active trusts are executory and what are not, so far from eliminating difficulties, is the source of them. It now becomes a question of construction to determine whether the testator "has been his own conveyancer" or whether he has used language not in its strict legal sense, but informally and imperfectly as the mere suggestion for a settlement or con- veyance to be made in apt language to carry out his. intention. § 433. Suggestions of the cases in aid of the problem of construction: First: When there is a direction that a con- veyance be made by the trustee to contain certain limitations, an inference at once arises that the gift is imperfect and the language describing the limitations to be made is informal and that the testator or settlor has not been his own conveyancer.^^ This suggestion is sound because there is ordinarily no reason for the testator or settlor directing such a conveyance to be made if he is intending, to act as his own conveyancer. Second: The usual cases where the testator is held to have acted as his own conveyancer, although direicting the execution of a future instrument, are (1) wh^re the settlement to be executed is designated by reference to another instrument con- *2 In Davenport v. Davenport, 1 fully all the details of his scheme. Hem. & M. 775, 777, Sir Page Wood, and endeavors to give the fullest V. C, said: "Where a future, deed possible effect to his directions by is directed, the court assumes that the mode in which it carries them the testator may not have stated into execution." 492 ■ Ch. XVII] RULE IN Shelley's case [§ 433 taining full and complete limitations,*^ and (2) where the di- rection is very short and simple — such as a direction to convey to A and the heirs of his body.** • Third: It is regularly held that when there is a direction to convey to A for life with a remainder to A's heirs or a re- mainder to the heirs of A 's body, an intention is manifested not to jise the words in their strict legal sense and it follows, there- fore, that the expression is regarded as informal and imperfect and merely suggestive of what the testator or settlor desires to have done by an instrument appropriately framed to carry out his purpose. It is believed that the English *^ and American *" eases support without dissent this position. The logical basis for this position is as follows: It is con- ceded that the Bide in Shelley's Case always defeats the inten- tion as expressed, by placing upon the language used by the testator or settlor a legal effect different from the ordinary meaning of the words, and the meaning actually placed by the testator 'or settlor upon the words as used. From this it neces- sarily follows that whenever thereis a direction that trustees are to make a conveyance or settlement upon A for life and then to the heirs of A, the words actually used by the testator or settlor are not used in accordance with their strict legal import. The legal effect of the words which results from applying the Ride in Shelley's Case being what it is, and the actual expressed in- tent of the testator being what it is and different from the legal effect of the words, it follows' that the words are necessarily used informally and imperfectly as suggesting what the testator or settlor desires to have accomplished and not at all because the testator is acting as his own conveyancer. Hence, whenever the ■direction is to trustees to make a conveyance with limitations to A for life and then to A's heirs, the trust is executory so that the Ride in Shelley's Case will not apply. IS Theobald on Wills, 7th ed. 725; Sim. 264; Bastard v. Proby, 2 Cox dristie v. Gosling, L. E. 1 H. L. 6; Eochfort v. Fitzmaurioe, 2 D. & (Eng, & Ir. App.) 279. War. 1. "Seale v. Seale, 1 P. Wms. 290. *e Tallman v. Wood, 26 Wend. 9; <6 Theobald on Wills, 7th ed. 725, Wood v. Burnham, 6 Paige (N. Y.) 726; Papilion v. Voice, 2 P. Wms. 513; Hanna v. Hawes, 45 la. 437; 471; Parker v. Bolton, 5 L. J. Oh. Saunders v. Edwards, 55 N. C. 134; N. S. 98; Duncan v. Bluett, Ir. Berry v. Williamson, 11 B. Mon. Rep. 4 Bq. 469; Hadwfen v. Hadwen, (Ky.) 245, '258, 261. 23 Beav. 551; Stoner v. Curwen, 5 493 § 434] FUTURE INTERESTS [Ch. XVII The only ease found which seems at all opposed to this is that of Wicker v. Bay.*'' In that case there was a direction that the one-fourth devised to the testator's daughter Harriet "shall be so secured to her that she shall enjoy it during her natural life, and after her decease then to her right heirs for- ever." The testator directed that the one-fourth interest of his grandchildren, Jennie and Eliza, be secured to them "in like manner." He clothed his executors "with power to secure to my daughter, Harriet, the one-fourth interest in my estate as above, and also to secure to my grandchildren their interest of one-fourth." It is submitted that here was most clearly an executory trust, and yet the court held that the grandchildren, Jennie and Eliza, had the absolute interest in fee. The briefs of counsfel as reported contain no suggestion whatever with re- spect to the rule that the Kvle in Shelley's Case does not apply where the trust is executory. The court did not refer to it. The court seems to have regarded the will itself as vesting the fee in the grandchildren and the subsequent words as very doubtful in their effect of cutting down the fee to a life estate, and then merely added in the most offhand manner that if the subsequent words did cut down the fee to a life estate, the Bvle in Shelley's Case applied. It is submitted that if Wicker v. Bay stands in any degree for the proposition that the Bule in Shel- ley's Case applies where the trust is executory, or that the trust is not an executory trust so that the Eule will apply where there is a direction to trustees to make a conveyance with limi- tations in favor of A for life and then to A's heirs or the heirs of A's body, it is out of line with all the authorities and should not be followed as the law of this state. Topic 5. The Rule Does Not Apply to Personal Peopebtt. § 434. Conclusion stated : If the Bule in Shelley's Case were a rule of construction it might fairly be argued that it would apply to the appropriate limitations of personal property. But the Rule arose as early as 1324 in England to create limitations of freeholds.*^ It was dictated by purely feudal considerations which have had little or no reality since the sixteenth century. 47 118 ni. 472. *^Ante, §§ 34, 35. 494 Ch. XVII] RULE IN Shelley's case [§ 435 It h'as long been known as a rule of law defeating a clearly- expressed intent. For a short time' only in the eighteenth cen- tury an attempt was made prabtically to destroy it by turning it into a rule of construction. This failed in England, and has failed in Illinois.*® Since future interests in personal property were recognized as valid in the seventeenth century j^" long after feudal considerations which were the basis for the Rule in t Shelley's Case had ceased to exist, and since feudal considera- tions were inapplicable anyway to limitations of personal prop- erty, there never was any reason why the Bide in Shelley's Case should apply to personal property. On the contrary there was' every reason why it should not. An examination of the au- thorities will demonstrate that it does not apply to personal property. § 435. Where the bequest is to A for life and then to A's "executors aad administrators": Here it is settled that A takes an absolute interest.^^ This, however, proceeds upon the ground that such is the intention actually expressed by what amounts to a gift to A, and then to his estate. That this result depends upon the application of the principle of carrying out the testator's real intent, and not at all upon the Rule in SJieh ley's Case, sufficiently appear^ ivam Powell v. Boggis^^ and Atkinson v. L'Estrange.^^ In both of these cases the gift was to A for life and then to A's heirs. In both cases there was a considerable special context which justified the court in taking "heirs" as meaning "personal representatives," so that by the application of the general rule, A took an absolute interest. In both cases, however, the court proceeded solely upon what it found to be the real expressed intent, and denied that the Rule in Shelley's Case applied to personality, or that the result reached was in any degree due to the application of the Rule in Shelley's Case. In Powell v. Boggis, Lord Romilly, Master of the Rolls, said : "It is quite true that the Rule in Shelley's Case is a tech- nical rule and applies only to real estate. # * * There is no question as to the Rule in Shelley's Case, which in no sort of way applies to this case." ^* In Atkinson v. L' Estrange, Chat- terton, "V. C, said: "I do not rely upon the Rule in Shelley's " Post, § 441. 52 35 Beav, 535. , 50 4)t«e, §§107, 109. 53 L. E. Ir., 15 Ch., 340. 51 Theobald on WUls; 6th ed. 461. at 35 Beav. 535, 541. 495 § 436] FUTURE INTERESTS . [Ch. XVII Case, as governing this case, to which I think it has no applica- tion, "^b It is unfortunate that the Illinois court, in Glover v. Cbndell,^^ while referring with approval to the rule that a bequest, whether legal or equitable, to A for life, and after his decease to his executors, administratcirs and assigns, will cause A to be entitled absolutely, should have seemed to ascribe such a result to the application by analogy of the Bvle in Shelley's Case. § 436. Where the bequest is to A for life and then to his "heirs": Even where the court holds that "heirs" in the technical sense of those who inherited real estate, was meant, we iind it held that the interest which A takes is limited to a life estate, and a separate and distinct future interest in A's heirs is recognized, thus repudiating the proposition that A ob- tains an absolute interest in the personalty. The language of the court is also clear that the Rvle in Shelley's Case is not ap- plicable to bequests of personalty. The principal case to this effect is Smith v. Butcher,^'' decided by Jessel, M. R. This was followed by In re Russell '* arid in this country by two Delaware cases^. Gross v. Sheeler ^^ and very recently Jones v. Bees.^" So, where the gift was to A for life, with (as the court construed the language) a future interest to A's "next of kin," A did not take an absolute interest, and there was no application of the Rule in Shelley's Case by analogy. On the contrary, A was held to take a life interest with a separate and distinct future and contingent interest to those who should turn out to be her next of kin at her death.^^ The ease of Glover v. Condell ^^ does not seriously militate in this state against the adoption of Jessel's ruling. In the Con- deir case the testator devised personal property to trustees to pay the income to Albert for life, and after his death ' ' the prin- cipal of his share or part to be paid to his heirs. ' ' Then fol- lowed a gift over in the event of Albert's death "without living heirs" of his body, to the testator's wife for life and after her 55 L. E. Ir. 15 Ch., 340, 343. at 262, the court says that the Eule 58 163 111. 566, 587. in Shelley 's Case does not apply to 57 L. R. 10 Ch. Div. 113. personal property. 58 52 L. T. R. 559. 6o 6 Penn. (Del.) 504. 59 7 Houst (Del.) 280. In Siee- si Low v. Smith, 25 L. J. Ch., 503. loff V. Redman 's Adm., 26 Ind. 251, 62 igg m, sgg. 496 Ch. XVII] RULE IN Shelley's case [§436 death to the testator's children. Albert died without leaving any living heirs of his body. The trustees asked for instructions and the court held that the gift over upon Albert's death with- out living heirs of his body was valid and must take effect as limited. That is all the court needed to hold on this branch of the ease. Against this view it was evidently argued that the gift over was void for repugnancy, because A took an absolute in- terest. The court needed only to admit for the sake of argu- ment that A did take an absolute interest, and then to make the obvious holding that the executory devise was valid, overruling in terms as it did, the previous cases of Emng v. Barnes ^^ and Silva V. HopMnson.^* As a matter of fact, that is all the court did. The court said in substance that whether the Bule in Shelley's Case be applied, or whether the gift be regarded as to A and his heirs, A would 'take the ownership of the fund ' ' sub- ject to the limitation over thereof to the children of the testator, upon the contingelicy of his death without living heirs of his body at the time of his death." If the court undertook to go beyond this and to say that Albert did actually have an abso- lute interest because a gift of personalty to Albert for life and then to Albert's heirs gives Albert an absolute interest by the ^ application by analogy of the Bule in Shelley's Case, it is mere oibiter dictum, and is open to subsequent re-examination when- ever that question becomes directly involved. It seems, how- ever, extremely doubtful whether the court ever took any such position. It is worth noticing that in referring to the applica- tion of the Rule in Shelley's Case by analogy to personality, the court does so only in connection with the supposed gift to A for life and then to A 's executors, administrators and assigns. In such a case, as we have seen, the authorities are agreed that A takes the absolute interest. It is simply an unfortunate adop- tion of some generalization of the American and English En- cyclopedia of Law, that leads the learned judge who wrote the opinion of the court, to refer to such a result as the application by analogy of the Bule in Shelley's Case.^ '3 156 m. 61. ~ to personal property to some ex- "158 111. 386. tent: Bennett v. Bennett, 217 111. '5 In the following cases there 434; Wallace v. Toxwell, 250 111. are suggestions that the Eule in 616. Shelley 's Case may apply by analogy Kales Fut. Int. — 32 497 § 437] PUTUEE INTERESTS [Ch. XVII Whatever doubt previous decisions may have cast upon the matter, the law is now clearly settled by the recent decision of our Supreme Court in Lord v. Comstock,^^ whure it was held that the BvXe in Shelley's Case as such did not apply to personal property, and that the limitations of equitable iaterests in per- sonal property in substance to A for life and then to A's heirs, conferred upon A only a life interest, with a future interest to A's heirs according to the expressed intent of the testator.*'' § 437. Where there is a bequest to A for life, with a re- mainder to "the heirs of A's body": Here the situation is peculiar. It is settled by a long line of English cases,®* which have been followed apparently without exception or dissent, at least in the earlier cases in the United States,®^ that A takes an absolute interest. Upon what reasoning, however, does this ap- parently settled result rest? It is clear from Smith v. Butcher and the cases following it, that it cannot rest upon the Bvle in Shelley's Case, for if that Rule does not apply where the limita- tions are to A for life, and then to A's heirs, it certainly cannot apply where the limitations are to A for' life and then to the heirs of A's body. The sound explanation of the rule that a bequest to A for life and then to the heirs of A's body, gives A an absolute interest, is this : The English cases so settling the rule were decided in the eighteenth century, if not before, and at a time when there was certainly a very strong impression abroad that the Rule in Shelley's Case was a rule of construction which somehow determined and fixed the meaning of the words which a testator had used.''*' If that were true, then what would 66 240 111. 492. Fla. 369; Mason v. Pate's Exr., 34 67 ^ocor is void.^^ gyj. what reason could possibly be given him for the rule that all shifting interests by deed are Void in this state ? And how would you explain to him- that he could do this thing by will ^^ but not by deed ? § 444. The Illinois authorities are divided— Cases in support of the validity of shifting interests by deed: It seems settled here that a power, created by deed, to appoint a new trustee is valid.^* The donee of the power may be the cestui que trust/^ or an utter stranger to the transaction, as the court of chancery of a judicial circuit.^® Furthermore, upon the appointment being made under the power the new trustee becomes ipso facto vested with the legal title to the trust premises, and no con- veyance need be made to him by the former trustee,^^ or the former trustee's heirs, if he be dead. Nor are the cases to this effect to be put upon any narrow ground that the power occurs in a trust deed by way of mortgage, for in Morrison v. Kelly ^* the trust was an active one for the benefit of the settlor's wife.^* The same object is, in the present day Cook County Trust Deed by way of mortgage, more often accomplished directly without 12 Post, §§ 722-725. for want of a written conveyance to 13 Post, § 467. them, untenable. By the terms of 1* Horrison v. Kelly, 22 Iir 610 ; the deed the same title and power Lake v. Brown, 116 111. 83; Craft which were conferred upon the origi- V. I. D. & W. Ey. Co., 166 lU. 580; nal trustees vested in their sueces- West V. Pitz, 109 111. 425, 442, sors, when lawfully appointed." semble; Eeichert v. Mo. & 111. Coal See also to the same effect: 2 Lewin Co., 231 111. 238. on Trusts, 1st Am. from 8th Engl. 15 Lake v. Brown, 116 III. 83; ed. 650-651; 2 Chance on Powers, Craft V. I. D. & W. Ey. Co., 166, 400 et seq. 580. 18 22 m. 610. 16 Morrison v. KeUy, 22 111. 610 ; i9 Observe also the English prac- See also Leman v. Sherman, 117 tice of inserting such powers in 111. 657, 668. settlements inter vivos where trus- 17 Morrison v. Kelly, 22 111. .610 ; tees have active duties. 2 Hayes Craft V. I. D. & W. Ey. Co., 166 on Conveyancing, 71-72. For the 111. 580. In the latter case the court law generally relating to power to passed upon this point specifically: appoint new trustees see Sugden on (saying, page 586) "We also think Powers, 8th ed. 883-890; 2 Chance the position that no title to the on Powers, 393-411; 2 Lewin on property or power to' execute the Trusts, 1st Am. from 8th Engl. ed. trusts vested in them as successors 645-673. 510 CH. XVIII] SPRINGING AND SHIFTING INTERESTS [§ 445 the exercise of any power by this provision: "In case of the death, absence, inability or refusal to act, of said party of the second part, then [here insert name of successor in trust], of the said city of Chicago, shall be, and he is hereby appointed and made successor in trust to said party of the second part under this deed, with like powers and authority, and said premises ' shall thereupon become vested in said successor in trust, for the uses and purposes aforesaid." Here the clause is self-acting, for at once upon the happening of the event the successor in trust becomes invested with the legal title.^** These results can be sustained only upon the ground that shifting interests by deed are valid. The operation of the power is to divest the legal title from the first trustee or, if he be dead, from his heirs, and to give the same legal title to the new trus- tee, — ^in short, to shift a legal title in fee from one person to another. Exactly the same thing occurs where a successor in, trust is specifically named — upon the happening of the con- tingency the legal fee shifts from the first trustee to the suc- cessor.^^ We have, also, the direct dictum of Abbott v. Abbott ^^ that shifting interests by deed may be valid ^3 ini this state. § 445. Cases ag^ainst the validity of shifting future interests by deed: The court has frequently referred to the rule that, while there cannot be a remainder after a remainder in fee, you may have two contingent remainders in fee in double aspect.^* 20 Equitable Trust Co. v. Fisher, 22 igS 111. 488, 498. 106 HI. 189, semhle; Irish v. Anti- "s in Glover v. Condell, 163 111. oeh College, 126 111. 474. 566, 592, Mr. Justice Magruder 21 Observe that the holding in quotes, apparently with approval. Boatman v. Boatman, 198 lU. 414, Mr. Gray's summary of his chapter and Chapin v. .Nott, 203 111. 341, on Future Interests from the Eule now overruled {ante, § 359), logi- against Perpetuities, § 98, as fol- cally leads to the sustaining of lows: " 'The result of the investi- shifting future interests by deed. In gation pursued in the present chap- both cases we have created by deed ter is this: Originally the creation a life estate with a contingent fu- of future interests at law was ture interest to unborn persons, and greatly restricted, but now, either a further gift upon failure of is- by the Statutes of Uses and Wills, sue to living persons. The last was or by modern legislatipn, or by the held to be a vested remainder in gradual action of the courts, all fee. Clearly, however, upon the restraints on the creation of future birth of the unborn persons' who interests, except those arising from are to take first, the fee held to be remoteness, have been done away '. ' ' vested would be divested. 24 City of Peoria v. Darst, 101 511 § 445] FUTURE INTERESTS [Ch. XVIII This is a perfectly sound proposition as regards remainders, or common law future interests by way of suceession,^^ and no confusion need have arisen out of the expression of it, had not the court, on at least three occasions,^® Where such a prin- ciple was announced, strained mightily to construe future in- terests created by deed as contingent remainders in double aspect rather than a vested remainder in fee, with a gift over upon a contingency cutting it short, — ^thereby leaving the impression that the latter sort of limitation by deed would have been held void. In some eases the court has apparently gone further in its ' ddcta and declared that a fee on a fee by deed was void, as if all shifting interests by deed were invalid.^'^ In two instances where the validity of a shifting future interest by deed was actually involved, it appears, at first glance, to have been held invalid upon the sweeping ground that all limitations of a fee on a fee by deed are void.^® The decisions in both these cases may, however, be sustained upon the ground that the gift over was to take effect, in one case,^^ upon the first taker's intestacy, and in the other, 3" upon an attempted alienation by will by the first taker. Passing from dicta to actual decisions : In two eases ^^ our Supreme Court has held that, upon a conveyance to the chil- dren of A "bom and to be born," only those children in ex- istence when the conveyance is executed can take, thus denying to the deed the power of creating, in the then existing children, a vested fee simple which may be divested or shifted pro tanto to let in after-born children. In Palmer v. Cook,^^ an ordinary shifting interest was held invalid on grounds which would make void all shifting interests whatsoever. There, the conveyance 111. 609; McCampbell v. Mason, 151 163 111. 603, 605; Stewart v. Ste- III. 500; Seymour v. Bowles, 172 wart, 186 111. 60; Kron v. Kron, 111. 521. See also Summers v. 195 111. 181. Smith, 127 111. 645, 650; Smith v. 28 Kron v. Kron, 195 111. 181; Kimbell, 153 111. 368, 372. Stewart v. Stewart, 186 111. 60. 25 Ante, § 307. 29 Kron v. Kron, 195 111. 181, 26 City of Peoria v. Darst, 101 post, §§720 et seq. 111. 609, McCampbell v. Mason, 151 so Stewart v. Stewart, 186 III 111. 500 ; Seymour v. Bowles, 172 60, post, § 718. , 111. 521. SI Morris v. Caudle, 178 111. 9; 27.Siegwald v. Siegwald, 37 111. MUler v. McAlister, 197 111. 72; 430, 438; Glover v. Condell, 163 posi, §§ 475, 476. 111. 566, 592; Strain v. Sweeny, 32159 111. 300. 512 Ch. XVIII] SPRINGING AND SHIFTING INTERESTS [§ 446 by deed was in the usual form to M. A. S. and E. C. S. in fee, and "in case either of the grantees dies without a heir, her interest to revert to the survivor." The surviving husband of E. C. S. filed a bill for dower and partition against M. A. S., who survived E. C. S. It was decreed accordingly. This was af- firmed upon the ground that the future limitation to the sur- vivor was void. It could not have been void for remoteness for the gift over could not, by any proper construction, be upon an indefinite failure of issue.^^ Nor does the court put the case upon any such ground, but declares briefly as follows: "It is an established principle of construction of contingent remaind- ers, that an estate cannot, by deed, be limited over to another after a fee already granted. The term 'remainder' necessarily implies what is left,** and if the entire estate is granted there can be no remainder. This deed effected an absolute fee simple conveyance by the first clause of the deed and vested the es- tate. By the last clause an attempt is made to mount a fee upon a, fee, which can only be done by executory devise." ^^ § 446. Contentions— Of the cases which seem to hold shift- ing interests invalid — Stated: In the cases, the dicta or actual decision of which seem to' deny the validity of any shifting in- terest by deed, we find two forms of bare assertion and one reason. It is most often said that " a f ee cannot be limited after a fee by deed. ' ' "o Sometimes it is said that by deed a fee can- not be limited upon a fee by way of remainder, or that there can be no remainder after a vested remainder in fee.*^ The S3 Post, § 544. vise. ' ' See, however, as to this pas- si But see "Eemainders after sage, post, § 448, note 54, and § 449, Conditional I'ees," by F. W. Mait- note 57. land, 6 Law Quart. Rev. 22, 25. se Siegwald v. Siegwald, 37 111. 35 In Aekless, v, Seekright, 1 430, 438; Summers v. Smith,' 127 Breese (111.) 76, 78, the court quotes 111. 645) 650; Glover v. Condell, 163 from 2 Blackstone's Com. 174, as III. 566, 592; Strain v. Sweeny, 163 follows: "When a devisor devises 111. 603, 605; Stewart v. Stewart,, his whole estate, in fee, but limits 186 111. 60; Kron v. Kron, 195 I11.I a remainder thereon to commence 181. on a future eontingen,cy, as if a 37 Peoria v. Darst, 101 111. • 609, man devises land to A and his heirs; 616, 619; McCampbell v. Mason, but if he dies before the age of 151 111. 500, 509; Smith v. Kimbell, twenty-one, then to B and his heirs, 153 111. 368, 372; Palmer v. Cook, his remainder, though void in a deed, 159 111. 300. is good by way of executory de- ' Kales rut. Int. — 33 513 § 447] PUTXJRE INTERESTS [Ch. XVIII only i;eason ever suggested for this is, that the shifting future interest is repugnant to the grant and void.^^ § 447. Repugnancy : It is worth observing that only two cases put forward this reason of repugnancy.^* In both of them, the holding of the gift over void, was sound, because the shifting interest was, in one case,*" to take effect if the first taker died without having aliened in his lifetime,*^ and, in the other,*^ if the first taker died intestate.** The .reason of repugnancy has always been confined to just such cases, and is particularly invoked in support of the latter.** In fact, it was the original ground for holding gifts over on intestacy void. The reason of repugnancy, as thus advanced, meant only that the proviso, that an absolute interest shall be forfeited if alienation in a particu- lar manner {viz.: hy descent) is attempted, is void, and hence the gift over cannot take effect.*^ In this view, the only re- pugnancy that exists is between the first absolute interest and the direction for its forfeiture. Until Ewing v. Barnes,*'^ our Supreme Court always carefully recognized the very special and limited application of the reason of repugnancy to this par- ticular sort of case. In Ewing v. Barnes and Silva v. Hopkin- son/'^ the court did, in fact, so far misconceive the scope of this doctrine of repugnancy as to hold shifting executory devises in general void. But in Glover v. Condell,*^ these two cases were overruled. The error into which they fell was fully recognized and corrected, and, since then, the court has been very accurate in limiting the application of the idea of repugnancy to the case where ^ gift over on intestacy is held void. When, therefore, the court, in holding gifts over upon the intestacy of the first taker, or upon his attempted alienation by wUl, refers to re- pugnancy as a ground of decision, it would seem to be entirely proper to regard it as referring to the conventional reason which is given for such results, and not as declaring that repugnancy is a general ground upon which all shifting interests by deed are 38 Stewart v. Stewart, 186 111. 60 ; *3 post, § 720 et seq. Kron V. Kron, 195 111. 181. *< Post, § 723. 39 Stewart v. Stewart, 186 111. 60 ; *is Id. Kron V. Kron, 195 111. 181. <« 156 111. 61, post, § 469. 40 Stewart v. Stewart, 186 111. 60. " 158 111. 386, post, § 469. 41 Post, § 718. . *8 163 111. 566, post, § 470. 42 Kron V. Kron, 195 111. 181. 514 CH. XVIII] ^PBINGING AND SHIFTING INTERESTS [§ 448 to be held invalid. This method of calculating the scope of the reason of repugnancy receives much encouragement from the fact that such a reason cannot refer to any rational impossibility in recognizing the validity of shifting future interests in gen- eral, since no difficulty is found in their recognition dnd en- forcement when limited by will.*^ § 448. The conunon law rule that a fee cannot be limited after a fee: In a very considerable proportion of the cases where our Supreme Court has said that a fee cannot be limited upon a fee by deed, it clearly appears that reference was being made to a rule of the common law, i. e.,, a rule of the feudal system of land law. In one case, the court said that an attempt to limit a fee on a fee was void "by the rule of the ancient common law, which did not permit any limitation of an estate over after the grant of a previous fee. " ^^ In another, the court says: "at common law a fee could not be limited upon a fee." ^^ In other cases, the court has been very careful to express the rule as a part, of the law of remainders, i. e., future interests in land allowed by the feudal system of land law.^* Thus, it has said that "a remainder limited after a remainder in fee would be void;"®^ and that "it is one of the rules governing con- tingent remainders that an estate cannot be limited over to another after a fee already granted. A remainder implies some- thing left, and there can be nothing left after the whole has once been disposed of. It is for this reason that a fee already granted, cannot be defeated and transferred to another by way of remainder. "5* Practically, then, the basis put forward to sustain the court's decisions and dicta to the effect that shifting interests by deed are void, is a restriction of the feudal system of conveyancing upon the creation of future interests in land ^^ «oPo«t, §§467 et aeg. 111. 300, 303. Doubtless Blact- so Peoria v. Darst, 101 111. 609, stone in the passage quoted ante, 616. § 445, note 35, meant no more than 51 Summers v. Smith, 127 111. 645, a shifting future interest though 650. , void as a remainder, was good as ^'Anie, §§25, 26, post, §451. an executory devise. See pOst, " Peoria v. Darst, 101 111. 609, § 449, note 57. 619; MeCampbell t). Mason, 151 111. *5 This analysis of the court's 500, 509. meaning finds additional support in '* Smith V. Kimbell, 153 111. 368, the court's constant admission that 372. See also Palmer v. Cook, 159 shifting interests by will were valid, 515 § 449] FUTURE INTERESTS [Ch. XVIII § 449. Of cases which hold the shifting interest hy deed valid: In all but one of the cases which sustain the shifting interest by deed, the validity of the future interest is assumed. The dictum of the court in Ahiott v. Ahlott,^^ however, gives us the hint of a red^son for reaching such a result. That dictum is as follows: "Counsel for the appellants, * * * have argued with ability, and, we think, successfully, in support of the proposition, 'that where the fee in the first taker created by a deed, is made determinable as upon the happening of a valid condition subsequent, followed by a limitation over of the fee or use to another upon the happening of the prescribed event, the fee or use shifts from the first to the second taker, where the deed is a conveyance under the Statute of Uses, as all of our American deeds are, and is a clear case of shifting use.' " ^'' § 450. Reasonings of both lines of cases valid so far as it goes — General view: The usual result of contrasting the rea- soning upon which two opposite results are supported is to reach the question — ^which reasoning is correct? One position must be wrong, and the other right. Thus, we reach a specific issue for argument. In this instance, however, such a course does not lead to this result because it must be conceded that both lines of reasoning are, so far as they go, unassailable. It is literally true that, at common law, a fee could not be limited upon a fee, — that all shifting interests were void.^® It is equally true that, by conveyances operating under the Statute of Uses, such future interests might be limited.^® It is true, also, that both of these principles are preserved in our law to-day. This will appear more. clearly from a brief survey; first, of the com- mon law system of conveyancing; second, the development un- der the Statute of Uses ; and third, the demonstration that the principles of both systems are a part of our law, today, in Illinois. for, at common law, there was no so igg, m. 488, 498. power to devise lands, and the 57 in spite of the language quoted power of testators to create f u- from Blackstone, ante, § 445, note ture interest created by way. of 35, that learned writer clearly lec- wholly from the Statute of Wills ognized the validity of shifting fu- of Hen. VIII and modern wills acts ture interests created by way of following it — that is, by statute as use. 2 Bl. Conl. 334. distinguished from the common law. ss Ante, § 26. Post, §§451, 452. , 53 Ante, §72. 516 Ch. XVIII] SPRINGING AND SHIFTING INTERESTS [§ 451 § 451. The common law system of conveyancing : In con- sidering the common law system of land law, it should first be observed that we are dealing with a system founded upon the social and political organization of the middle ages, and de- veloped consistently with the requirements of feudalism. In this system of land law one of the essential features was tenure — the relation of the lord to the vassal^which carried with it the feudal incidents and dues from the vassal to the lord."" Another important conception was that of seizin, or the feudal posses- sion of a freehold interest. So much turned on the existence of this fact of seizin that one writer, at least, has said of the law of land of this period that it "was not a law of ownership, but a law of seizin." •'^ The feudal system required a conveyance of the present free- hold interest to be by livery of seizin,''^ — a mode of conveyance which would be found extremely inconvenient today, since it required the presence of the parties upon the land or in sight of it, and the actual physical transfer of possession at the time of the 'conveyance.*^ Freehold interests which could not pass by livery of seizin, as reversions or remainders, must have been conveyed by grant with an attornment (by the tenant in posses- sion. Attornment was the means by which actual seizin was given the transferee,** and without it, therefore, the grant was void.*^ The requirement of attornment at the present day would, it is believed, be about as inconvenient as Jivery itself. The alienation of real estate by way of devise was unknown to the common law."* With regard to the creation of future interests, the limita- 60 1 Pollock & Maitland, History Challis on Real Property, 363-374. of English Law, 207-332. For form of deed of feoffment with •1 ' ' Future Interests in Land, by form for endorsement of livery of Edward Jenks," 20 Law Quart. seisin, see 2 Hayes on Conveyane- Bev. 280, 282. ing, 5th ed. 3. «2Co. Lit. 48a, b; 1 Gray's Cases «3 2 Pollock & Maitland, History on Prop., 2nd ed. 352; 2 Pollock & of English Law, 82 et seq. Maitland, History of English Law, e*"The Mystery of Seisin," F. 82; Thoroughgood's Case, 9Co. 136; W. Maitland, 2 Law Quart. Eev. 1 Gray's Cases on Prop., 1st ed. 481, 490. 437; Digby, History of the Law of «b Ante, §§ 43, 379. Beal Property 146 et seq.; "WiUiams so Digby, History of Law of Eeal on Eeal Property, 17th ed. 174-176; Property, 28, 377; 1 Gray's Cases Pollock on Land Laws, 75,. 76; on Prop., 1st ed. 451, 452, note. 517 § 451] FUTURE INTERESTS [Ch. XVIII tions of the common law were particularly rigid and unyielding. To strangers, only those future interests by act of the parties were allowed which were bound, by express provision or by operation of law, to take effect, if at all, whenever and however the preceding interest determined.^'^ That reduced the possible future interests of this sort to those which are properly called remainders.*^ If a future interest to a stranger, when carried out accord- ing to the settlor's intetit, was certain to take effect by way of interruption of a preceding interest, either expressly limited, or resulting to the settlor by way of reversion, it was void.*^ If it cut short or interrupted a preceding freehold estate expressly limited, it was a shifting interest.^" It was inconsistent with the feudal system of land law because the existence of such in- terests "would have positively encouraged dissensions, or violent interruptions of feudal possession — an evil which it was one of the chief objects of the King's courts to suppress. " '^^ If the future interest was certain, in case it took effect at all, to cut short a reversionary interest in the settlor, it was a springing estate.'^2 j^s invalidity at common law followed logically froni the nature of the essential act of conveyance by livery of seizin and grant with attornment, and "because any interval between the expiry of the particular estate and the vesting of the re- mainder would have involved an abeyance or suspension of the seizin, i. e., of that feudal possession upon which the state levied, its dues, and to which it looked for the maintenance of order." '* Under these common law rules governing the creation of future 67 Ante, § 25. by Edward Jenks, 20 Law Quart. esld. Rev. 280, 281. See also Weatises 69 Leake,. Digest of Land Law, referred to, supra, note 69, except 46-48; 1 Gray's Cases on Prop., that for the invalidity of shifting 2nd ed. 348-350; Digby, History of interests at common law see Chal- Law of Real Property, 262; Sug- lis on Real Property, 2nd ed. 71-73. den on Powers, 8th ed. 26; 1 Hayes ■''Ante, §26. on Conveyancing, 5th ed. Ill, 112; 73 "Future Interests in. Land," Challis on Real Property, 2d ed. 90, by Edward Jenks, 20 Law Quart. 93 et seq. Per Baker, P. J., in Vin- Rev. 280, 281. "The King's son 1). Vinson, 4 111. App. 138, 140, Courts," says the same wjiter, "re- ante, § 26. garded an abeyance of the seisin as 70 Ante, § 26. only less perilous than an interrup- 71 "Future Interests in Land," tion of the seisin." 518 Oh. XVIII] SPRINGING AND SHIFTING INTERESTS [§ 452 interests, a present conveyance to A's children, A not having any' child at the time, was entirely ineffective J* So, if A had a child at the time of the transfer, that child alone took, though the feoffment was expressed to be to the "children of A born and to be bom." ''^ Thus, did the common law system of con- veyancing refuse to countenance the giving, by act of the parties or by operation of law, an estate to one and afterwards divesting it to any extent in favor of another. The future interest after a particular estate of freehold could be limited on such a contingency that, until the event happened, there would be an uncertainty as to whether it would take effect by way of succession or interruption. This was the case where the future ,interest was limited after a particular estate of free-' hold upon a contingency which might happen either before, or at the time of, or after, the termination (whenever and in what- ever manner) of the preceding estate.''® In that case the future interest would take effect by way of succession or interruption, according as the event upon which it depended, happened before or at the time of, or after, the termination (whenever and how- ever) of the preceding estate.^^ In short, there would, from the start, be a chance that the future interest would take ef- fect by way of succession. At first such future interests were held entirely void. By 1430, however, the rules of the com- mon law system of conveyancing were so far relaxed that the future interest of this sort was allowed to take effect, provided it did so by way of succession, i. e., if the event happened be- fore or at the time of the termination (whenever and however) of the preceding estate of freehold. Otherwise it was void.''* §452. Development under the Statute of Ilses: The en- forcement of uses by the chancery before the Statute of Uses of Hen. VIII, and the turning, by the statute, of those uses into legal estates, worked important and striking changes in the feudal or common law system of conveyancing. Before the Statute of Uses, land was conveyed to such uses as the feoffor should appoint by will, and, when the chancery enforced the use so appointed, the right to devise lands was '*l Hayos on Conveyancing, 5th ■!« Ante, §§27, 28, 96, 309. ed- 119. 77 Id. "■^f?- IS Ante, §§28, 97. 519 § 452] PUTUEE INTERESTS [Ch. XVIII to a certain extent accomplished J ^ The effect of the Statute of Uses, was, it has been said, to interrupt this practice,*"* but the Statute of Wills of Henry VIII ^^ directly established, to a limited extent, the validity of testamentary conveyances. The Statute of Uses, among other things, did away with all the inconvenience of livery of seisin resulting from the require- ment that the parties go upon the land, or within sight of it, at the time of the transfer, and actually, then and there, de- liver possession. By a covenant to stand seised to uses, or by a bargain and sale (enrolled), or by a lease for a year operating as a bargain and sale without entry, and a subsequent release, operating at common law, the legal title might at all times be transferred by acts done in a solicitor's office.*^ By similar modes of conveyarice the transfer of a remainder or reversion inight be effected without attornment.*' The most marked change in the development of the law of conveyancing which occurred under the Statute of Uses was the new liberty allowed in t^ie creation of future interests. Before the statute the chancery carried out springing and shift- ing uses as trusts,*'* and after the statute these springing and shifting interests by way of use were turned into springing and shifting legal estates.*^ Thus, it became possible, by the crea- tion and exercise of powers of appointment, to limit a legal future interest, taking effect by way of interruption long after the execution of the original conveyance under which the legal title was transferred.*® In the same way, it became possible '9 Gray's Eule against Pei-petui- 158; Digby, History of Law of Eeal ties, § 53 ; Pollock on Land Laws, Property, 332 ; Oray 's Rule against 95, 96. Perpetuities, §§ 52, 135, 136, 138. 80 Sugden on Powers, 8th ed. 20 ; sb i Hayes on Conveyancing, 5th Pollock on Land Laws, 102; Gray's ed. 113-115; Pollock, Land Laws, Eule against Perpetuities, §53. 124-125; Leake, Digest of Land 8132 Hen. VIII, C. I. (1540); 4 Law, 112-113; 1 Gray's Cases on Gray's Cases on Prop., 2nd ed. 30. Prop., 2nd ed. 402; Digby, History 82 Pollock on Land Laws, 104- of Law of Real Property, 357-360; 107; Digby, History of the Law of Challis on Real Property, 157-159, Real Property 357; Williams on 161-164; Feame, Cont. Rem. 372; Real Property, 17th ed. 233 ; 1 Hayes Sugden on Powers, 8th ed. 26-28, on Conveyancing, 5th ed. 118; 1 32-34; Gray's Rule against Per- Gray 's Cases on Prop., 2nd ed. 395. petuities, § 52. 83 Ante, § 379. se Leake, Digest of Land Law, 84 Challis on Real Property, 157- 114; Sugden on Powers, 8th ed. 520 Ch. XVIII] SPRINGING AND SHIFTING INTERESTS [§452 to provide, in a manner before unknown, for the substitution of new trustees in place of old ones by means of a simple shift- ing use, or a use which shifted upon appointment by some desig- .nated person. This practice, as we have seen,*^ has continued down to the present day. The new freedom in conveying the title to real estate under the Statute of Uses was strikingly ex- hibited in the case of gifts to a class of persons. "Thus," says Hayes,** "if A conveyed, at the common law, to the 'children' of B, who had no child then in being, the conveyance was sim- ply void. If A conveyed, at the common law, to the ' children born and to be born' of B, who had a child or children then in being, the estate vested in such child or children to the exclu- sion of after-born children. But if A conveyed to B, to the M^e of the ' children ' of B, who had no child at the time of the conveyance, the use was a valid disposition in favour of all his future children. If A conveyed to'B, to the use of 'children bom and to be bom ' of B, who had a child or children then in being, the use was executed in such child or children, not finally, but with a capacity of enlarging to admit the after-born chil- dren." By a curious historical development one very great restric- tion upon the creation of executory interests by way of use was retained from the common law. "Within a few years after the Statute of Uses it had been held that springing and shifting uses were valid and operated to confer springing and shifting legal estates.*^ Logically, it should have followed that the future interests were indestructible.'" Until 1599, however, the impression seems to have obtained that they were destructible upon some analogy to the rule of the common law, which caused certain contingent future interests to fail entirely unless they took effect as remainders, by way of succession.^! That analogy was entirely superficial and im- proper in all cases of contingent future interests except one.®'' If to be applied at all, it was appropriate only to the case of future uses, limited after a particular estate of freehold upon 17-18; 1 Hayes on ConTeyaneing, 's A»«e, §§ 73, 85. 5th ed. 70 etaeq. ^o Id. ST Ante, § 444. si Id. '8 1 Hayes on Co9veyaneing, 5tb 0= Ante, §§ 77, 97. ed. 119. 521 § 453] FUTURE INTERESTS [Ch. XVIII a contingency which might occur, either before or after, or at or after, the termination (whenever and in whatever manner) of the preceding estate. Here, since the future interest might pos- sibly take effect as a remainder by way of succession, there was presented exactly the case where the common law required it to do so, or to fail entirely. It was held in the 1590s that this restriction of the common law upon the creation of future in- terests applied to contingent future uses of the same descrip- tion.? ^ It was in the course of upholding the decisions of this decade that the rule came to be stated that every gift which can take effect as a remainder absolutely excludes its being treated as an executory devise or a springing use. Such con- tinued to be the law down to the time of the English contingent remainders acts of the 19th century .8* It is believed that this rule of law represents the extreme limit to which the validity of future uses were controlled by the re- strictions of the common law.^^ Its only effect was to place a limitation upon the creation of such contingent uses as. might possibly take effect by way of succession. Pells v. Brown^^ in 1620, however, settled it that future interests which were abso- lutely incapable of taking effect in possession by way of suc- cession, i. e., what have been called springing and shifting fu- ture interests, were indestructible. These were wholly void at common law because they could not possibly take effect as re- mainders. When recognized at all, in conveyances by way of use, they were, therefore, entirely valid. § 453. The principles of the common law and of the system of conveyancing virhich developed under the Statute of Uses exist side by side as part of the law of Illinois today: Ob- serve, now, that, of these two systems, — the feudal or common law, and uses under the Statute of Uses,— the older was never ss ig;. these cases have been subjected, it 8* Ante, § 97. may well be doubted whether they 95 It is true that in Adams v. stand as law. Gray 's Rule against Savage, 2 Ld. Eaym. 854; 2 Salk, Perpetuities, §§58-60. "A Point 601, 679, and Eawley v. Holland, in the Law of Executory Limita- 22 Vin. Ab. 189; 2 Eq. Cas) Ab. tions, " by Henry W. Challis, 1 Law 753, it was held that a contingent Quar. Rev. 412; and Sugden on future interest after a term for Powers, 8th ed. 35 et seq. years was wholly void. In view, wCro. Jac. 590; 2 Roll. Rep. 196; however, of the criticisms to which ante, § 85. 522 Ch. !^VIII] springing and shifting interests [§ 453 directly abolished by that which came after. The second, for the time being at least, left the first standing in full force. The Statute of Uses, while it furnished the basis for a freer and more flexible system of conveyancing, which . eventually superseded the feudal or common law system, never by legislative enact- ment, abolished the latter.*'' The rules of both these systems, existing as they did side by side, have come down to us in Illi- nois. Even if this be not so because of our connection with England through the Virginian colonial government, the North- west Territory and the territorial government of Illinois, it is, clearly established by an early act of our state legislature.®* Are not, therefore, the common law modes of conveyance the^ , oretically, at least, in force in this state 1 In Fisher v. Deering,^^ our Supreme Court, as we have seen,i went very far toward say- ing that the common law conveyance by grant and attornment, was the only mode by which a reversion or remainder could be transferred. It is clear that since 1873, at least, no attorn- ment is necessary. The dictum, however, of Fisher v. Deering must stand for this at least, — ^that you can use such 'a form of conveyance if you want to. Why, then, may you not transfer a present freehold interest by livery of seizin if you care to take the trouble to do so? There certainly is no statutory aboli- tion of livery of seizin. Sec. 1 of the Act concerning Convey- ances ^ is very particular not to abolish it. That act reads: "Livery of seizin, shall in no case be necessary for the convey- ance of real property. ' ' The hint is, indeed, thrown out in sev- eral cases that livery of seizin has been abolished.* Strictly, this is not so. Livery of seizin, it is true, is quite unnecessary, even without the statutory enactment, because of the statutory forms now in use,* and because the Statute of Uses is in 97 Livery of seisin for example, 2 E. L. 1827, p. 95, sec. 1 ; E. S. continued to be used in England as 1845, Ch. 24, sec. 1, , p. 102 ; E. S. a mode of conveyance into the 19th 1874, Ch. 30, sec. 1; 1 A. & D. E. century. "Seisin," by Charles E. S. pp. 75, 100. Sweet, 12 Law Quart. Eev. 239. ' Wall v. Goodenough, 16 111. 415, . 98 In force Feb. 4, 1819. Eevised 418 ; Witham v. Brooner, 63 111. Laws 1833, p. 425; E. S. 1845, Ch. 344, 346; Shackelton v. Sebree, 86 62, sec. 1; E. S. 1874, ch. 28. See 111. 616, 621; Latimer v. iatimer, also Baker v. Scott, 62 111. 86, 94 174 lU. 418, 429; Vinson v. Vinson, «* seq. 4 111. App. 138, 140-141. 99 60 111. 114. 4 E. S. 1874, ch. 30, sees. 9, 10, lAmte, §379. IL 523 § 454] FUTURE INTERESTS [Ch. XVIII force,' by which validity is practically given to all deeds of con- veyance as bargains and sales. Furthermore, livery of seizin in actual use is unknown.* There is nothing, however, which de- clares that it shall not be used. It would seem, also, on the same reasoning, that the feudal rules concerning the creation of future interests are very prop- erly recognized by our Supreme Court '' as in force in this state. It is, then, perfectly accurate for the court to reiterate, as it has done, that, by the ancient common law, a fee cannot be mounted upon a fee.^ If, therefore, a shifting interest were attempted to be created in a conveyance by livery of seizin, which could not possibly take effect in any other way, it would be void. So, if, a conveyance, which can only take effect as a" transfer by livery of seizin, be made to the children of A, "born and to be bom," it is wholly void to confer any rights upon those children who are not in esse at the time of the coiivey- ance. These rules may now, however, be avoided in this state exactly as they were in England since the time of Hen. VIII, by a conveyance operating under the Statute of Uses. § 454. The special issue: From this point the solution of our problem as to the validity of shifting interests by deed in Illinois becomes very simple. Having found it to be lit- erally true that, under the common law system of land laws, the limitation of a fee upon a fee was impossible; that, by a conveyance operating under the Statute of Uses, such a limi- tation was perfectly valid ; and that the common law rules and the Statute of Uses are both in force in this state today, the real question becomes this : Are shifting limitations in a deed, in the usual form adopted in this state, dependent for their validity upon the application of the common law rules regarding remainders or upon the law of future interests as developed under the Statute of Uses? This is to be settled in favor of the 5B. L. 1827 p. 96, sec. 3; B. S. act by the English courts: Ee Qua 1845, dh. 24, sec. 3; E. S. 1874, eh. v. Graham, 187 111. 67; Glaubensklee 30, sec. 3; 1 A. & D. E. E. S. pp. v. Low, 29 111. App. 408; Cole v. 75, 103. See also Witham v. Broon- Bentley, 26 111. App. 260. er, 63 111. 344. It must be clear s ghackelton d. Sebree, 86 111. 616, also that, by the incorporation of 621. the Statute of Uses into our law, 7 Ante, § 448. we have adopted the general prin- s id. ciples of the interpretation of that 524 Ch. XVIII] springing and shifting interests [§ 456 application of the common law rules if a conveyance, in the or- din?iry form in use in this state, operates solely as a common law conveyance. If it operates under the Statute of Uses, then the futui'e shifting interest must be valid. If it operates under any modern conveyancing act it may be valid. § 455. Shiftingf limitations by deed may be supported here by force of the Statute of Uses — Conveyances by deed in Illi- nois have never operated under the common law: The first argument in support of the proposition that shifting limitations by deed may be sustained under the Statute of Uses is, that the usual deed in this state, conveying a freehold interest has prac- tically never acquired its force from the common law at all. At common law, a present freehold interest must have been con- veyed by livery of seizin; a reversion or remainder, by grant with attornment. It is a matter of common knowledge that livery of seizin has never been used. Attornments may have been made upon grants of reversions or remainders, but it is believed that, except in case of the transfer of reversions after terms for years where the tenants paid rent, formal attornment was not usually demanded.' The application of the feudal rule of remainders, that you cannot limit a fee on a fee, survives at the present day only as an academic possibility, since the case for the application of such a rule would only arise if a con- veyance attempting to limit a fee on a fee were made in such form that it could not possibly take effect otherwise than at common law. This would narrow the possibility practically to the case of a cojiveyance by livery of seizin of a present freehold interest. § 456. Conveyances by deed in Dlinois have always taken effect under the Statute of Uses: As soon as there came to be in force in England two modes of transferring the title to real estate inter vivos, each quite distinct in character, one at common law and the other under the Statute of Uses, by one of which the conveyance might be void and by the other valid, it became necessary to announce a rule for the construction of conveyances so that it might be ascertained whether any given transfer operated under one system or the other. The principle was early promulgated, and ever since maintained, that an in- ' See eases of transfer of remain- ders after a life estate, ante, § 379. 525 J 456] > FUTURE INTERESTS [ClI. XVIII strument of conveyance may be sustained upon whichever sys- tem it is necessary to rely in order to carry out the intention of the parties. This was so when the question was whether a conveyance of a present interest was effective. The mode of transfer might be, in form, a grant at common law without at- tornment, or a deed of feoffment without livery, and so, in either case, ineffective under the common law system of conveyancing. Yet, if it were for a consideration of blood or for a valuable con- sideration, or if a consideration of money were even mentioned, the conveyance was valid under the Statute of Uses.^" The same rule applied with regard to future interests. Springing and shifting future interests which could not take effect by a com- mon law conveyance, were perfectly valid if the conveyance, by which they were attempted to be created, could take effect as a covenant to stand seized or a bargain and sale.^^ The law was equally liberal as to what amounted to a bar- gain .and sale or covenant to stand seized. For the former it was only necessary to have any language showing an intent to trans- fer title and a consideration, however insignificant, actually given. 12 If the instrument be under seal the recital of the giv- ing of some consideration could not be denied by the parties, so that the mention of the giving of a consideration was as ef- fective to make a bargain and sale as the act itself would have been.i* If so much of the Statute of Enrollments i* as requires a bargain and sale of a freehold to be created by an instrument under seal, is not in force here, then a bargain and sale does not require a seal.^^ For a covenant to stand seized, only an 10 Edward Fox's Case, 8 Co. 93b; 1 Gray's Cases on Prop., 2iid ed. 1 Gray's Cases on Prop., 1st ed. 389. 489. 13 3 Gray's Cases on Prop., 2nd 11 Eoe V. Tranmer, 2 Wils. 75 ; ed. 249, note on recital of eonsidera- 1 Gray's Cases on Prop., 2nd ed. tion; also Vinson v. Vinson, 4 111. 391; Fraser's note to Edward Fox's App. 138; 111. Cent. Ins. Co. v. Wolf, Case, 8 Go. 93b; 1 Gray's Cases on. 37 111. 354. Prop., 1st ed. 490. ^ i4 27 Henry VIII, eh. 16 (1536), See also H. Clay Horner 's con- 1 Gray 's Cases on Prop., 2nd ed. tribution on this subject, dealing 382-383. with the Illinois cases; Chicago is Tiedeman on Real Property, Legal News of July 12, 1902, p. 2nd ed. § 783. See, however, Jaek- 375. son d. Goueh v. Wood, 12 Johns. 12 Barker v. Keete, Freem. 249, (N. Y.) 73. 526 CH. XVIII] SPEINGING AND SHIFTING INTERESTS [§ 457 * instrument under seal was necessary, purporting to convey title to the blood relation of the transferor.^® It must be apparent, then, that the form of deed of convey- ance, which has been used as far back as our records go, and which is now in use in this state, is entirely capable of taking effect as a bargain and sale;" It always purports to be a trans- fer of title. It always contains the recital of a consideration paid. It is, always under seal. If it is made to the transferor's blood relation, it may also take effect as a covenant to stand seized. The well settled rule, then, applies. If it be necessary in order to support the validity of a shifting interest, the con- veyance will take effect as a bargain and sale or a covenant to stand seized under the Statute of Uses. § 457. The fact that our deeds in Illinois may operate under the acts of 1827 and 1872 cannot interfere with the validily of shifting^ interests created by them: It is believed that not a few conveyancers, in Illinois, if asked to put their finger upon the authority which gives force to our deeds to pass a title, would refer to the act of 1872 providing for the statutory forms of conveyance.^* If the transfer occurred before 1872, they would fall back upon section 1 of the Act of 1827 concern- ing Conveyances.^® It would at once occur to these' lawyers that, while all that has been said about conveyances under the Statute of Uses may be true, yet our deeds do not operate under such a statute, and, therefore, it may perhaps be held that the common law rules apply and that shifting interests cannot be created by conveyances operating under our modem statutes. This position may seem to some too fallacious to require answer- ing, and yet it is believed that there is nothing connected with the problem under discussion that does not require patient ex- amination. Even if it be admitted, for the sake of argument, that our modern statutes giving effect to conveyances by deed in the "Callard v. Callard, Moore 687; is Laws 1871-2, p. 282, sees. 2, 9, 1 Oray's Cases on Prop., 2nd ed. 10, 11. . 386; Eoe v. Tranmer, 2 Wils. 75; . is R. L. 1827, p. 95, sec. 1; E. S. 1 Gray's Cases on Prop., 2nd ed. 1845, ch. 24, sec, 1 (p. 102); E. S. 391. 1874, eh. 30, sec. 1; (1 A. & D. E. "Shaekelton v. Sebree, 86 III. E. S. pp. 75, 100). 616, 621. 527 § 458] FUTURE INTERESTS [Ch. XVIII usual form, do not authorize the creation, by such deeds, of shifting future interests, yet such modern statutes do not in any way preclude the operation of such deeds under the Stat- ute of Uses if they are in proper form. They simply give a cumulative ground for sustaining the conveyance by deed. The situation is not essentially different from that which existed when one might convey either under the Statute of Uses or at common law by livery of seizin or grant and attornment. Then, it was the rule founded upon the d.esire of the courts to sup- port conveyances, that if the mode of transfer failed as a con- veyance at common law, it might nevertheless take effect under the Statute of Uses. It is submitted, therefore, that if, at the present time, there be any difference in the extent to which a future interest may be created by a deed operating under the Statute of Uses and under modern statutes, and the deed may operate under either, it will, in order to give effect to the intent of the parties, operate as that mode of conveyance by which the future interest in question may be created. § 458. Shifting interests by, deed may be supported in Illi- nois under the a«ts of 1827 and 1872: In reality, however, there is not the slightest ground for saying that, under our Illinois statutes giving effect to conveyances, shifting future in- terests cannot be created. The reasons why such future interests could not be created under the common law system had reference only to the ex- igencies of tenure and the necessities of seizin and of conveyance' by livery. Neither the Statutes of Uses or "Wills in terms gave any power to create shifting future interests. The reasons in support of their validity under those statutes seem to have been as follows : It was argued that, as such interests were valid by way of use before the statute, and, as the statute turned uses into legal estates, shifting' uses became shifting legal estates. Before the Statute of Uses upon a feoffment to the use of the feoffee's will, shifting uses might be created by will.*" So, after the Statute of Wills direct shifting devises of legal interests were permitted.21 The result in both instances was doubtless aided by the fact that conveyances to uses and devises after the Stat- utes of Uses and Wills were modes of transferring title without 2" Pollock, Land Laws, 91. 24 M. 98.^ 528 CH. XVIII] SPEINGING AND SHIFTING INTERESTS [§ 458 the common law formality of livery and seizin or grant and at- tornment.2* Finally, it is believed that the feudal organization of society was, in the reign of Hen. VIII, so far giving way to the more modem or commercial order of things, that the reasons for the feudal prohibition upon such springing interests, no longer existed. At least two of those reasons are distinctly applicable to our modern conveyancing acts, with this difference, however, that the lapse of time has intensified almost beyond calculation in words, their compelling force. An odd relic here and there of the feudal system of land law may remain, but the system as such and the social and political conditions which gave it birth, have not existed for at least two or three centuries in England, and never did exist on this side of the Atlantic. There can, therefore, be no reason for attaching to conveyances, under our modern statutes, the restrictions of the feudal system. They should be handled in accordance with the modern effort to give the gifeatest liberty to land owners in the disposition of their property. The reason in favor of springing and shifting uses and executory devises, that, in conveyances under the Statutes of Uses and Wills, no feudal formality was required, certainly applies with peculiar force when urged in support of similar interests created under our modem conveyancing acts. Our Supreme Court has actually approved and asted in ac- cordance with this reasoning in holding that, unde^ the act of 1827, a grantor may by deed limit a life estate te- ^limself.^^ This, it is conceded, was impossible at common law.^* But it was argued, that the rule of the common law depended upon the principles of feudal land law and the requirements of con- veyances by livery of seizin and that these considerations had no place in Illinois today. The statute of 1827, therefore, al- lowed the grantor to carry, out his intention. Exactly this same reasoning will apply to warrant the inference that shift- ing interests by deed pperating under the acts of 1827 and 1872 alone, are valid. Such is the actual effect given to similar stat- utes in other states.^^ This view is strictly in accord with the 22 Digby, History of Law of Eeal 2< Post, § 463. Property, 332. 25 Gray 's Bale against Perpetui- 23 Sha<3kelton v. gebree, 86 HI. ties, §§ 67, 68, citing Abbott v. Hol- 616; post, §463. way, 72! Me. 298; Gorham v. Dan- Kales Put. Int.— 34 529 § 459] FUTURE INTERESTS [CH. XVIII way uses were treated after they had received recognition, and in direct analogy to the results reached under the Statute of Wills. § 459. The tendency to hold shifting future interests by deed invaJid is reactionary — Character of the changes in the law of conveyances: It was doubtless consistent wilh the system of feudalism that the transfer of land should have been permitted only with the formality of livery of seizin and that testamentary dispositions should be unknown. It was, doubt- less, equally proper that no springing or shifting interests should have been permitted. It may even have been necessary to the retention of the feudal system that the intent of individuals in dealing with their lands should be thwarted in this manner. When, however, the feudal system, as a real condition of society, fell into decay, when feudal England was becoming commer- cial England, the new social organization demanded new free- dom from the restraints of the common law. The history of uses before the Statute of Uses reveals a struggle to break free from the burdens of tenure and to deal with interests in land according to the will and pleasure of the owner.^^ The Stat- ute of Uses was reactionary ^^ in purpose. It was passed to stop the rising tide against the burdens of tenure and the feudal sys- tem of conveyancing. But the operation of the Statute of Uses was not only not permitted to prove reactionary, but under the favor of the judges, means were quickly found to give it an operation and found a practice upon it which did away with the inconvenience of livery of seizin or entry upon the land, and gave land owners new freedom in the creation "of legal springing and shifting future interests, limited by the only rules of public policy which had any application to the new non- feudal order of society — ^the rules of public policy embodied in the Rule against Perpetuities and the prohibition of gifts over by way of forfeiture on alienation. The modern wave of reform in real property law in England " has accomplished among other things, the further simplicity in the form of conveyances,^* the decreased cost of transfer'" lels, 23 Vt. 600; Ferguson v. Ma- Observe, however, Sugden on Pow- son, 60 Wis. 377; Kuuku v. Ka- ers, 8th ed. 8. wainui, 4 Hawaiian 515. 2s Pollock on Land Laws, 165-171. 26 Sugden on Powers, 8th ed. 3. 29 Id. 171-178. 27 Pollock on liand Laws, 102-104. 0oO CH. XVIII] SPBINGING AND SHIFTING INTERESTS [§ 460 and the abolition of particular survivals of the feudal law which operated to defeat the expressed intention of testators and set- tlors. All of these currents of reform have been felt in Illi- nois. Sec. 1 of our Act concerning Conveyances and the statu- tory forms have simplified our modes of conveyance. The reg- istry system, and recently the enactment of the Torrens law for the registration of land titles,^" are efforts toward decreasing the cost of land transfers.^ ^ The whole progress, then, has been from the restrictions of feudalism to the freedom demanded by modern commercialism. The evolution has been from a system in which it was neces- sary to frustrate the will of the land owner, to one, the whole object of which is to carry it out.** § 460. The attitude of our Supreme Court : How, then, must a doctrine, which casts doubt upon the validity of spring- ing and shifting interests created by deeds operating as bar- gains and sales or as covenants to stand seized under the Stat- ute of Uses, be regarded ? It would be entirely consistent with a condition of things which flourished in the time of Henry II and Edward I, which was becoming obsolete in the time of Henry- VIII and was buried, as long Since dead, by legislative enactment in the time of Charles 11.** It would be opposed to that fundamental endeavor of modern times to give effect to the expressed intention of the land owner whenever possible — an endeavor which was accomplished by the chancery before the Statute of Uses and under the very fist of feudalism, which not only survived the blow aimed at it by the Statute of Uses, but, by the astuteness of the judges, turned that statute to its permanent advancement, and has continued to hold the ad- vantage then gained as one of the heritages of freedom. 30 Laws 1897, p. 141. written contract, and it is based 3'^" But as commerce and trade upon a sufficient consideration, and advanced, and the necessities of no rule of public policy has been the people changed, most, if not all contravened, such agreement should of the rigid rules of the feudal sys- be enforced, unless some stern and tem have entirely disappeared." inflexible rule of law prevents." Shackelton i). Sebree, 86 111. 616, Shaekelton v. Sebree, 86 111. 616, 620. 621. 32 "Where parties have clearly 33 12 Car. II (1660), «h. 24; 1 expressed their intention by their Gray's Cases on Prop., 2nd ed. 327. 531 § 461] FUTURE INTERESTS [Ch. XVIII § 461. The weigfht of authority in this state is in favor of the validity of shifting interests by deed: It is impossible for the writer to believe that, under the cases as they stand, it ever was the law of this state that shifting future interests by deed were void. We have only one case,^* actually holding the ordinary shifting interest by deed void, and two eases hold- ing gifts to classes by deed inoperative to transfer any title to the additional members of the class.^^ Everything else is dicta', being wholly ohiter,^^ or else consisting of expressions in cases where the gifts over are void on settled principles, because to take effect on the intestacy of the first taker,*^ or by way of forfeiture on alienation by will.*® Furthermore, these dicta are, in a way, perfectly explainable as the statement of the feudal rule of remainders which is to be found in all the books and which, as a common law rule of remainders, is still, aca- demically speaking, the law. These dicta, then, are not mis- statements. They simply fail to observe the later history of the creation of future interests under the Statute of Uses. In consequence, they do not tell the whole story. Palmer v. Cook,^* the one case holding an ordinary shifting interest by deed void, was decided at exactly the time when our Supreme Court had just held similar shifting interests by devise void in two cases.^" It was decided, then, at a time when a real misconception had gained momentary lodgment in the court. Almost immediately, however, the cases holding shifting executory devises void were overruled,*! and it is submitted that if the validity of shiftirig interests by deed came up today and the question fully consid- ered. Palmer v. Cook could not stand. In the two cases involv- ing gifts by deed to a class the court does not seem to have in the least perceived the real scope of its decision.** On the other side we have the actual result of at least two lines of cases*' which cannot be sustained without recognizing the validity of shifting interests by deed. We have, also, the assurance from Abbott V. Abbott ** that, whenever the effect of the Statute of 3* Palmer v. Cook, 159 111. 300. loEwing v. Barnes, 156 111. 61; 35 Morris v. Caudle, 178 111. 9; Silva v. Hopkinson, 158 111. 386. Miller v. McAlister, 197 111. 72. 4i Glover v. Condell, 163 111. 566; se Ante, § 445, notes 24, 27, 28. post, § 467, 470. 37 Kron V. Kron, 195 111. 181. 42 Post, § 476. 38 Stewart v. Stewart, 186 111. 60. *s Ante, § 444, notes 14, 20. 89 159 111. 300. *4 189 m. 482, 498. 532 Ch. XVIII] SPRINGING AND SHIFTING INTEaiESTS [§ 462 Uses to support the future interest is i3learly pointed out to the court, it will recognize the soundness of that position. § 462. Trend of the Illinois authorities since the foregoing argument appeared: The foregoing §§ 443-461 have been re- printed substantially as they appeared in the author's Future Interests, published in 1905. Since then our Supreme Court has made progress toward a definite holding that shifting in- terests by deed are valid — that is, that a fee on a fee by deed may be created. ■ • The court has only once said,*^ and then as the most casual dictum, that a fee on a fee "in a conveyance is void." On two occasions the court has made statements by way of dicta merely, which indicated that it was referring to the feudal or common law of land or to the law of remainders as distinguished from the law of future uses. In one case Mr. Justice Cartwright sai^:** "A remainder cannot be limited to take effect after a fee simple for the reason that, a fee being the entire estate, there can be no remainder after it to be disposed of." Mr. Justice Dunn iii another case said:*'' "A fee cannot be lim- ited upon a fee in a deed at commort law." In Cover v. James ** where the limitations were by deed to A and in case o(£ his death to B in fee, the court seems to haive been anxious to con- strue A 's interest as a life estate so as to avoid the difficulty which might arise if B 's interest were a fee on a fee by deed. The same is true of Bawman v. Stoller,*^ where the limitations were in substance to A, and if A died before his wife leaving children surviving him, to the wife and surviving children. - In Brown v. Brown,,^" however, the limitations created by deed were to Catherine in fee with a shifting interest to Cora when she reached eighteen for her life, and then to Cora's chil- dren for life. After the death of Cora and her children Cath- erine and those taking under her claimed to be entitled in fee. It was held that they were so entitled; that if the life estate were valid Catherine's fee was only cut down to the extent of that life estate. The validity of the shifting interest for life *5 Johnson v. Buck, 220 111. 226, 48 217 111. 309. 235. "235 111.480. «8 Morton v. Babb, 251 111. 488, 5« 247 111. 528. 492. " Pitzer V. Morrison, 272 111. 291, 293. 533 § 462] FUTURE INTERESTS [Ch. XVIII was not actually involved but its validity was aissumed and the case decided upon that assumption rather than on the assump- tion that the life estate upon the fee was void.. In principle^ there is no difference between a life estate after a fee and a fee on a fee. If the former is valid so is the latter. In Morton v. Bali ^^ the limitations by deed were to A in fee, but if A died without leaving issue, to the grantor. The gift to the grantor was a fee on a fee by deed. It was held valid. This was placed upon the ground that a determinable fee in the feudal or common law sense might be created with a possibility of reverter in the creator of the base fee and that that was what had been done. The court said : ' ' The rule that a fee cannot be mounted upon a fee by deed does not mean that it is impossible to grant an estate less than a fee simple [a base or determinable fee] by deed. '■* Thus we observe that the court preferred to resort to the difficult doctrine that determinable fees in the feudal or common law sense might still be. created rather than to rest its decision on the clear ground that a fee could be mounted upon a fee by way of use and that the deed in question operated as a bargain and sale and therefore by way of use. The decision in Bauman v. Stoller ^'^ seemed to rest upon the ground that, the limitations were to A for life and if he died before his wife and left children surviving, to such children and his wife. If such were the interests created it was pointed out that the contingent remainders had been destroyed by the merger of the life estate in the reversion, due to certain con- veyances which had been made.^* This point was urged when the case came up to the Supreme Court a second time under the title of Stoller v. Doyle.^* The only way of avoiding the defeat of the interests of the children was to hold that the first taker had a fee and that the shifting limitation to the children was valid and indestructible. This was done and the court recog- nized that a fee on a fee could take effect as a future use under the Statute of Uses. Here, therefore, we have a direct decision that a fee can be mounted upon a fee by deed.*'^ 51251 lU. 488, 493; 7 111. Law o* 257 111. 369; 8 111. Law Eev. Eev. 130. 495. 52 235 IlL 480. 55 In Duffleld v, Duffield, 268 III 53 3 IlL Law Eev. 383. 29,- the court said: "The power 534 CH. XVIII] SPRINGING AND SHIFTING INTERESTS [§463 In Boberts v. Dazey ^^ the deed conveyed and warranted the title to Amanda, with the proviso "if said grantee herein die before attaining the age of twenty-one years" over to Mary and Martha. Amanda died under twenty-one and it was held that the gift over took effect as a conditional limitation. Thus the ERRATUM Kales Estates, Future Interests— Page 535 Bead second line of Sec. 4^3 as: ^'valid: Conveyances by deed to a person in esse expressed to" §"463. Coiiveyaiices to take effect at the grantor's death: tv/o theories: Our Supreme Court has fully recognized that take effect at the grantor's death, hut not in terms reserving to the grantor a -life estate, have frequently, in this state, been held to create a valid future interest. ^'^ to limit a future estate has been recognized," citing Abbott v. Ab- bott, 189 111. 488 and Stoller v. Doyle, 257 111. 369. If the conveyancer must create . legal future shifting interests by deed the safest way to proceed would, it is conceived, be as fol- lows: Let the deed in the statu- tory form or valid , under see. 1 of the Act on Conveyances run to some indifferent person "for the use of the (real grantee) and his heirs, but if the said (real gran- tee) die without leaving issue him surviving, then to the use of B and his heirs." See H. Clay Horner's article entitled "The Statute of Uses," in Chicago Legal News for July 12, 1902, p. 375. This is simply a shifting use, raised on transmutation of posses- sion, as distinguished from such a use raised by bargain and sale or covenant to stand' seized, without any transmutation' of possession. On principle and authority, a shift- ing use may arise as well in one of these ways as another. It is conceived, however, that to a court unfamiliar with assurances, under the Statute of Uses, the form sug- gested would present the case in favor of the future shifting inter- est as a more elementary problem. S8 284 111. 241. 57 Shackelton v. Sebree, 86 111. 616; Harshbarger v. Carroll, 163 111. 636; Latimer v. Latimer, 174 111. 418; Noble v. Tiekes, 230 111. 594; White V. Willard, 232 111. 464, 472; Hathaway v. Cook, 258 111. 92, 96; NowakowsM v. Sobeziak, 270 111. 622; Vinson v. Vinson, 4 111. App. 138; Oalef v. Parsons, 48 111. App. 253, 257, semUe. In Conkling v. City of Spring- field, 39 111. 98, and Thomas v. Eck- ard, 88 III. 593, the conveyance was conditioned not to take effect till a certain condition precedent had ' been performed.' In both cases it was held that the condition had not been fulfilled and so the title never 535 § 464] FUTURE INTEEESTS [Ch. XVIII § 464. The future interest, void at common law, sustained on two theories: Our Supreme Court has fully recognized that a future interest limited to take effect at the grantor's death was void at common law.''* This, however, is only an academic conclusion, for at common law the conveyance would ordinarily have been by livery of seizin and that, with other common law forms appropriate for transfer by one having a freehold inter- est in possession, probably never were used here, or, if they were, have long since become unnecessary and obsolete.^® The principal ground for sustaining such a future interest, as set out in the leading case of Shackelton v. Seiree,^'^ is, that, by the operation of the conveyance, the grantor becomes seized of a life estate and the future interest then takes effect as a re- mainder.*^ The power of the grantor to convey to himself a life estate might have been rested upon the fact that the deed operated as a bargain and sale or a covenant to stand seized under the Statute of Uses.*^ As such it is read as if the grantor was expressec^ to stand seized for the use of himself for life and then to the use of the grantee in fee. The statute executes the uses and the grantor becomes seized of a life estate and the grantee of the remainder in fee.*' In fact, however, the court held that the deed was effective to carry out the grantor's in- tention by virtue of sec. 1 of the Act on Conveyances.** They agreed that the inability of the feoffor upon making a trarfs- took effect. The validity of the eaOilberton TTses (Sugden's ed.), springing interest was, therefore, 150-152 note, quoted in 1 Gray's not involved. Cases on Prop., 2nd ed. 403-404; 38 Latimer v. Latimer, 174 111. Sugden on Powers, 8th ed. 2526; 418, 429, 430; Shackelton v. Se- Challis on Eeal Property, 2nd ed. bree, 86 111. 616; Vinson v. Vinson, 384, note; see also opening para- 4 111. App. 138, 140; Calef v. Par- graph in the opinion of Lyon, J., sons, 48 111. App. 253, 257. in Ferguson v. Mason, 60 Wis. 377; 59 Shackelton v. Sebree, 86 111. also 2 Hayes on Conveyancing, 5th 616, 621. See also cases cited ante, ed. 90. The dictvm of Callard v. § 4153. Callard, Moore, 687 (1 Gray's Cases 80 86 m. 616. on Prop., 2nd ed. 386), contra, is 61 This is the only ground relied not sound, upon in Harstbarger v. Carroll, 163 «* E. L. 1827, page 95, sec. 1 ; B. 111. 636, and Latimer v. Latimer, S. 1845, chapter 24, sec. 1 (p. 102) ; 174 HI. 418. E. S. 1874, chapter 30, sec. 1; 1 A. 82 Ante, § 456. & V. E."!!. S., pp. 75, 100. 536 CH. XVIII] SPRINGING AND SHIFTING INTERESTS [§ 465 1 fer, to reserve to himself a life estate,^' arose from the char- acter and formalities of the conveyance by livery of seizin, which required an actual change of possession.^* When, therefore, the deed took eifect under the statute, by the force of which an in- strument signed and sealed without livery of seizin was all that was peeessary to convey title to real estate, there was no obstacle to the intent of the grantor beiiig carried out.*''^ The future interest might have been sustained as a springing estate, that is, a future interest cutting short a resulting rever- sion in fee in the grantor. The deed might with propriety be regarded as operative under the Statute of Uses as a covenant to stand seized or as a bargain and sale.*® So construed it would be entirely capable of creating a springing future interest. This view was convincingly maintained by Mr. Justice Baker in the Appellate Court in Vinson v. Vinson.^^ ' It was somewhat vaguely suggested in Shackelton v. SehreeJ^ The future spring- ing interest might as well have been regarded as validly created on the ground that the deed operated under sec. 1 of the Act on Conveyances. This would be the logical result of the reason- ing used by the court to justify the grantor's right to limit a life estate to himself. If that can be done because our statute provides a mode of transfer free from the feudal requirements of livery of seizin, then, equally, may a springing future inter- est which was prohibited only by the requirements of feudal conveyancing and policy, be created by a deed in the ordinary form operating under if* § 465. Which of these two views is correct? Does the grantor have a life estate (whether under the Statute of Uses or by sec. 1 of the Act on Conveyances is immaterial), with a remainder in fee to the grantee, or does the grantor have a fee resulting to him by operation of law with a springing interest in the grantee cutting it short? '5 Callard v. Callard, Moore, 687. «!> 4 III. App. 138. See also for "^ Ailte, § 451. the same view : Leake, Digest of «' Shackelton v. Sebree, 86 111. Land Law, 112, 113; Roe v. Tran- 616; White v. Willard, 232 111.^464, mer, 2 Wils. 75; 1 Gray's Cases 472; Vinson v, Vinson, 4 111. App. on Prop., End ed. 391. 138. See also to the same effect : ""> 86 111. 616. Kuuin V. Kawainui, 4 Hawaiian 7i Vinson v. Vinson, 4 111. App. 515; Gorham v. Daniels, 23 Vt. 600. 138. 68 Ante, § 456. 537 § 465] FUTURE INTERESTS [Ch. XVIII In a number of cases a different result may be reached ac- cording as one or the other of these two lines of reasoning be accepted. Thus, in case the grantor retains only a life estate, the woman becoming his wife, subsequent to the conveyance, will have no dower. If, however, he has a fee, even though it be subject to be defeated, she will haye dower out of it after the grantor's death under the application of the rule of Biickworth V. Thirkell.''^ So, if the grantor have a life estate, the remain- derman may have an action of waste. If the grantor have a fee resulting to him by operation of law, it seems probable that any remedy to prevent legal waste may be denied him.''* Again, if A stood seized to the use of his heirs after his death, then, if there be a resulting use to A in fee in his lifetime, the Rule in Shelley's Case ''* would not apply, and there would be a valid springing interest in the heirs of A. If, on the other hand, A took an estate for life by implication, the Rule in Shelley's Case would apply, and A would have a fee simple — his standing seized being thus entirely nugatory.'^^ It is believed that the view which supports the future in- terest as a remainder after a life estate where there is no ex- pressed reservation to the grantor of a life estate,'^* cannot be '2 1 Coll. Juris. 322 ; 3 Bos. & Pul. no application where the executory 652, note, Butler's Co. Lit. 241a, interest was to take effect with ah- note; Gray's Cases on Prop., 2nd solute certainty after the grantor's ed. 588; 1 Scribner on Dower, 2nd death. ed. 302, 10 Am. & Eng. Enc, 2nd 73 Abbott v. Holway, 72 Me. 298; ed. 161, which held that the exeeu- Gannon v. Peterson, 193 111. 372; tory devisee does not take free from Turner v. Wright, 2 De G.'P. & J. dower of the first taker's wife, in 234; 1 Ames' Cases on Equity Jur- the absolute interest which the first isdiction, 476. taker may have had. Post, §484. '!*Ante, §§412 et seq. Observe, however, that the executory 76 Eearne, Cont. Eem., 41, 42. devise over in this case was re Of course, where there is an upon the contingency that the first express reservation of the life es- taker died without issue him sur- tate in the grantor it is perfectly viving and the decision is sup- proper to sustain the future inter- ported upon the ground that the est as a remainder: Eowler v. children of the marriage, if there Black, 136 111. 363; Palmer v. Cook, had been any, would have taken, 159 111. 300; Bowler v. Bowler, 176 If the extent of the case be limited 111. 541; Valter v. Blavka, 195 111. by this reasoning, then the rule of 610; Calef v. Parsons, 48 111. App. Buckworth v. Thirkell would have 253. 538 GH. XVIII] SPRINGING AND SHIFTING INTERESTS [§ 466 sustained.'^'^ There can be no resulting estate for life, since resulting estates by operation of law are always in fee J* Nor is it possible, when one observes how strong a necessity must exist before a life estate will be implied,'^* to imagine upon what ground there can be any implication of a life estate in the grantor. No doubt, there was a time when the English courts were willing to imply a life estate in such a case as the one under discussion.^" That, however, was before the general principles upon which life estates are regularly implied, had been fully developed, and when, under the influence of a rule which found expression in Adams v. Savage,^^ it was thought that a con- tingent future use, unsupported by a freehold, was bad because of the application of the common law or feudal rule, that there must be a freehold to support the future interest. Under these circumstances the English judges seem to have been quick to imply a life estate limited to the covenantor himself.*^ Adams V. Savage, however, is unsound on principle and should not be regarded as law in a jurisdiction where it has not already been adopted.*^ There would appear, therefore, to be no ground to day for implying any life estate. § 466. Conclusion : It would seem best to sustain a limita- tion after the grantor's death, when no life estate is expressly reserved,** as a springing, interest, cutting short a resulting estate in fee in the grantor, and valid either under the Statute of Uses or under sec. 1 of the Act on Conveyances. If a life estate be expressly reserved to the grantor,*^ a legal limitation "Abbott v. Holway, 72 Me. 298. si 2 Ld. Eaym. 854; 2 Salk, 601, "2 Hayes on Conveyancing, 5th 679 (1703). Ante, §80. ed. 464, 465; Leake, Digest of Land 82 gugden on Powers, 8th ed. 36, Law, 112, 113. ' 37. 79 1 Jarman on Wills, 6th ed. ^3 Gray's Eu,le against Perpetui- (Bigelow) Star pages 498 et seq. *i«^^' §§58-60; "On a point in the Ante, §§ 204 et seq. ^^^ °* Executory Limitations," by ■ sn T3-1, -nr-i.^ \ ■, -rr j. o„o ChalUs, 1 Law Quart. Eev. 412 ; Sug- soPibus V. Mitford, 1 Vent. 372; , ' o^t. ;. o^ ^ _ „ _ ' ' den on Powers, 8th ed. 35 et seq. I'earne, C. E., 42 ; Elphmstone on ^^^^ „ gp Interpretation of Deeds, 288; and si Shackelton ,;. Sebree, 86 111. even so careful a modern writer as 616; Harshbarger v. Carroll, 163 ChaUis in an article entitled "On m. gsg. Latimer v. Latimer, 174 a Point in the Law of Executory m. 418; Vinson v. Vinson, 4 111. Limitations," 1 LaT\f Quart. Eev. App. 138. 412,414. • sspowleiLV. Black, 136 lU. 363; 539 § 467] PUTUEE INTEKESTS [CH. XVIII for life to the grantor, with a valid remainder in fee to the grantee, may be sustained under the Statute of Uses or sec. 1 of the Act on Conveyances. TITLE II. BY WILL— EXE(!tUTOEY DEVISES. § 467. Executory devises in general valid — The authorities : It is not believed that there is now, or that there ever has been, any serious question in this state concerning the validity in general of springing and shifting future interests in real and personal property created by will. That our supreme court should, in the face of the establishment of such executory limi- tations under the Statute of Wills of Hen. VIII,^^ and their continued use in England for three centuries and a half and in this country since its settlement, have, in blind ignorance, judicially legislated the executory devise out of existence is so monstrous and absurd a conclusion, that it cannot be seriously suggested.*'' Furthermore, a thorough examination of all the authorities in this state which touch the subject will find the validity of executory devises in general unimpeaehed. In several instances®* wills have been before the Supreme Court containing a springing executory limitation, and, while in none was the main pressure brought to bear to impeach the validity of this interest, yet in not one was it suggested that the future limitation was invalid. In fact, the contrary seems to have been assumed. Instances of shifting executory limita^ tions are more common. In a considerable number of eases the validity of a shifting executory devise has been directly in- volved and sustained,*® often with a fullness of reasoning which Palmer v. Cook, 159 111. 300; Bow- 111. 660; Jacobs v. Ditz, 260 111. 98; ler V. Bowler, 176 111. 541; Calef Kolb v. ,Landes, 277 111. 440, 446. V. Parsons, 48 111. App. 253. i Por some observations on the dis- s«Ante, § 85. position of the intermediate income, 87 For a view of the modern pol- or legal title, see ante, §§ 207-209. . icy of the law which is at the bottom so Ackless v. Seekright, Breese of the validity of all springing and (III.) 76; Friedman v. Steiner, 107 shifting interests, whether created 111. 125; Summers v. Smith, 127 III by deed or will, see ante, § 459. 645; Ducker v. Burnham, 146 111. 9; 88 Lambert v. Harvey, 100 III. Smith v. Kimbell, 153' 111. 368; 338 ; Kingman v. Harmon, 131 111. Strain v. Sweeny, 163 111. 603 ; Koef- 171, 172; Oassem v. Kennedy, 147 fler v. KoefSer, 185 111. 261; Harri- 540 CH. XVIII] SPEINGING AND SHIFTING INTERESTS ' [§ 467 leaves the validity of executory devises in general beyond all doubt. 1 I Springing ^"' and shifting ®} limitations by way of executory son V. Weatherby, 180 111. 418, semble; Frail v. Carstairs, 187 111. 310; Gannon v. I^eterson, 193 111. 372; Thompson v. Becker, 194 111. 119, 122; Becker v. Becker, 206 111. 53; Bradsby v. Wallace, 202 111. 239; Harris v. Ferguy, 207 111. 534; Orr V. Yates, 209 111. 222 ; Johnson V. Buck, 220 111. 226; Ahlfleld v. Curtis, 229 111. 139; Mayer v. Mc- Cracken, 245 111. 551 ; Askins v. Mer- ritt, 254 111. 92; Ashby v. McKin- lock, 271 111. 254; Pitzer v. Mor- rison, 272 111. 291; McCliritock v. Meehan, 273 111. 434; Gayvin v. Car- roll, 276 111. 478; Aloe v. Lowe, 278 111. 233; Blackstone v. Althouse, 278 lU. 481; Fitzgerald v. Daly, '284 111. 42; Fulwiler v. MeOlun, 285 111. 174; Smith v. CarroU, 286 111. 137; Morris v. Phillips, 287 111. 633. Observe the dicta of the follow- ing cases sustaining the general va- lidity of shifting limitations by way of executory devise: Siegwald v. Siegwald, 37 111. 430; Illinois Land Co. V. Bonner, 75 111. 315. In Post v. Bohrbaeh, 142 lU. 600 the gift over was void because if was too remote. Apkrt from remoteness it was a perfectly valid executory de- vise. In the following eases the valid- ity of a shifting executory limita- tion seems to have been as8umec(: Eidgeway v. Underwood, 67 111. 419; McParland v. MoFarlaiid, 177 HI. 208; McConnell v. Stewart, 169 111. 374; Hinriehsen v. Hinrichsen, 172 111. 462. '" (a) Cases where the exercise of a power by an executor cuts short thp interest which has descended to an heir at law: (But these casos' may rest upon a statute in force since 1829. See post, § 610, note 5.) Bankin v. Eankin, 36 111. 293; Purser v. Short, 58 111. 477 ; Hughes V. Washington, 72 111. 84; Funk v. Eggleston, 92 111. 515; Starr v. Moulton, 97 111. 525; Lambert v. Harvey, 100 111. 338, semble. (b) Cases where the exercise of a power by a life tenant cuts short the interest which has descended to the testator's heirs: Fairman v. Beal, 14 III. 244; Christy v. Pul- liam, 17 111. 59; 19 111. 331; Mar- killie V. Kagland, 77 111. 98; Cro- zier V. Hoyt, 97 111. 23; Lomax v. Shinn, 162 111. 124. 91 (a) Cases where the exercise of a. power by an executor cuts short the\ interest of the devisee under the will: (But these cases may rest upon a statute in force since 1829, see post, § 610, note 5.) Pahl- man v. Smith, 23 111. 448; Hamil- ton V. Hamilton, 98 111. 254; Bails- back V. Lovejoy, 116 111. 442, semble; Ducker v. Burnham, 146 111. 9, semble; Hawkins v. Bohling, 168 111. 214, 220, semble; Kirkpatrick v. Kirkpatrick, 197 111. 144, semble. Also Oilman v. Bell, 99 111. 144, semble; and Ely v. Dix, 118 lU. 477. (b) Cases where the exercise of a power by a life tenant cuts short the interest of the devisees in re- mainder: Kaufman v. Breckin- ridge, 117 111. 305 ; Walker v. Prit- • chard, 121 ID. 221; Gaffield v. Plumber, 175 111. 521; GofE i). Peu- senhafer, 190 111. 200; Kurtz v. Graybill, 192 111. 445. See also the dicta of cases where the power was 541 § 468] FUTURE INTERESTS [Ch. XVIII devise, arising by the exercise of a power, have been repeatedly- upheld. §468. Three cases contra. — Andrews v. Andrews: ^^ ijj that case the testator left his property, after certain life estates, to charity, devising specifically to the First Presbyterian Church of Chester upon certain charitable trusts. The testator then directed the manner of the election of a trustee after- the death of the life tenants, in whom the title should vest. On a bill filed by the heirs at law to have the gift to charity declared void, it was urged that "the testator could not vest a fee in the church and by the same instrument divest it after it was thus vested, and vest it in another. ' ' Not only does our Supreme Court seem to, have countenanced this proposition, but it even went the lengthwof adding: "Nor could he [the testator] limit a fee upon a fee, unless the first fee limited failed for the want of the hap- pening of a specified contingency, which was not the case in this devise." This discussion was doubtless irrelevant in the case, for even if the shifting gift to the new trustee had been void the trust would not necessarily have failed for that reason. Even if revelant it was answered by the court's holding that by statute the fee was in the church corporation so that the new trustee provided for by the will could only have a right ot management. Pt is submitted that, so far as the testator ex- pressed an intent that upon the death of the life tenants the fee was to be shifted from the Presbyterian Church as trustee to a new trustee selected in a certain way, there was no more dif- ficulty, apart from the statute mentioned, in its being given effect, than in the common case where provision is made as in a deed or will for the substitution of a successor in trust. The obiter of Andrews v. Andrews must then remain subject to doubt. §469. Ewing v. Barneses and Silva v. Hopkinson:** In both these eases there was a devise in fee to the first taker, with a gift over upon the first taker's dying without issue. In both the gift over was held invalid, apparently upon the ground that a fee could not be limited upon a fee by will. Soon after these cases were decided they were subjected to a very acute held not 'to have been properly ex- 02 110 111. 223. ercised: Griffin v. Griffin, 141 111. 03 156 111. 61. 373; Caark v. Clark, 172 111. 355. "158 111. 386. 542 CH. XVIII] SPRINGING AND SHIFTING INTERESTS [§ 469 scrutiny by a learned member of the Chicago laar,^^ .who at- tempted, not it must be admitted, without a full realization of the difficulties of so doing, to point out that the actual decision in each case might be sustained. It was suggested that in the first case the gift over was to take effect upon an indefinite fail- ure of issue and was, therefore, too remote. It might be ob- jected to this explanation that a devise of real estate was in- volved and that by a very ancient rule of construction,®^ the first taker would have an estate tail, with a vested remainder in fee to the. ultimate devisee, which could not be too remote.*^ By our statute,®* however, the estate tail would be turned into a life estate to the first taker, with a contingent remainder in fee to children still unborn, so that the ultimate gift would he a "contingent remainder and not void for remoteness be- cause of the rule of destructibility of contingent remainders.®** In regard to SUva v.Hopkinson, it was observed that, while the gift over must have been regarded as taking effect upon a definite failure of issue, yet there was some ground for saying that the executory devise over only took effect upon the death of the first taker without ever having had issue. The difficulty here is that it did not appear from the bill filed that any children had ever been born to the two devisees who took a fee simple subject to the attempted gift over.®® The present writer would suggest that, if both cases are to be supported in any event, it must he upon the ground that there was no gift over at all, but that the death of the first taker, without issue, or without leav- ing issue him surviving,' meant the death of the first taker in the lifetime of the testator without issue. This is a very forced, if not unjustifiable, construction i in both cases.^ . '5 Mr. Leasing Bosenthal in 28 Court with the executory devise Chicago Legal News, 257 " (April 4, that, upon several occasions, it has 1896). strained to construe limitations as ' se Postj § 549. a life estate with contingent remain- "' Gray 's Eule against Perpetui- ders in double aspect rather than as ties, § 443 et seq. a vested remainder in fee simple 9' Ante, §§ 402 et seq. after the life estate and an execu- mipost, I 550. tory. devise over. In each case, this 9' See 28 Chicago Legal News, course seems to have proceeded upon 260. the assiunption that in no other 1 Post, f § 531, 539. way could the future interests be 2 It is significant of a certain given effect: Furnish v. Rogers, lack of facility in our Supreme 154 111. 569, ante, § 349 ; Phayer v. 543 § 470] FUTURE INTERESTS [Ch. XVIII § 470. Ewing v. Barnes and Silva v. Hopkinson now over- ruled: The attempts to sustain Ewing v. Barnes and Silva V. Hopkinson may now, however, be dispensed with, for our Supreme Court shortly after the criticism above referred to, in sustaining the validity of an equitable shifting interest created by will and arising upon a definite failure of issue,* took occa- sion to say: "This court has held in a number of cases that although a fee cannot be limited upon a fee by deed, yet it can be so limited by will by way of executory devise. [Citing sev- eral cases, including Siegwald v. Siegwald, 37 111. 430.] The case of Ewing v. Barnes, 156 111. 61, so far as it holds to the contrary is overruled. The language used in Silva v. Hopkinson, 158 111. 386, should be construed as applicable only to the facts of that case and not as contravening the doctrine of Siegwdd V. Siegwald supra, and the other eases of a like character above referred to.". The recent cases have established beyond ques- tion the validity in general of springing * and shifting ^ execu- tory devises. § 471. The recent cases have also disposed of the fallacy that because some shifting interests were void for "repug- nancy" all must be void: In another place® those cases are dealt with in detail which hold that shifting gifts over by way of forfeiture on alienation of the first taker's interest and gifts over on intestacy are void. They are mentioned here because in them one of the reasons given for the result is that of the repugnancy of the gift over to the fee or absolute interest iii the first taker.'' This reason of repugnancy, often repeated, Kennedy, 169 111. 360. See also Daly, 284 III. 42; Fulwiler v. Mo- Johnson V. Johnson, 98 111. 564; Clun, 285 111. 174; Smith v. Carroll, Schaefer v. Sehaefer, 141 111. 337. 286 III. 137; Morris v. Phillips, 287 3 Glover v. Condell, 163 111. 566. 111. 633. » Jacobs V. Ditz, 260 111. 98; Kolb «Post, §§ 717-725. V. Landes, 277 111. 440, 446. ' In Ackless v. Seekright, Breese = Ahlfield V. Curtis, 229 111. 139; (111.) 76, our Supreme Court ap- Mayer v. McCraoken, 245 111. 551; proved Chancellor Kent's view that Askins v. Merritt, 254 111. 92; Ash- the gift over on intestacy was void. hj V. McKinlock, 271 111. 254; Pit- Since then nothing seems to have zer V. Morrison, 272 lU. 291; Mc- been ventured except that the gift Clintook V. Meehan, 273 111. 434; over is repugnant to the devise to Gawin v. Carroll, 276 111. 478 ; Aloe the first taker. See Welseh v. Belle- V. Lowe, 278 111. 233;^ Blackstone v. , villa Savings Bank, ^4 111. 191, 203; Althouae, 278 111. 481; Fitzgerald v. Wilson v. Turner, 164 111. 398, 405- 544 CH. XVIII] SPRINGING AND SHIFTING INTKBESTS [§ 471 came in the minds of some judges to mean that the gift over was void because it was an attempt to cut short a previous absolute bequest or devise in fee. This meant that all shifting executory- devises and all shifting interests by deed were void.* It was evi- dently while laboring under this misapprehension, induced by an over-emphasis of the reason of repugnancy, that, our Supreme Court in Swing v. Barriss^ and Silva v. Mopkinson'^^ held an ordinary executory devise over on a definite failure of issue of the first taker void, and in Palmer v. Cook ^^ held a similar shift- ing interest by deed void. In all these cases alike the courll rested its decision on the ground of repugnancy, not perceiving at all that that reason was confined to gifts over on intestacy and gifts over by way of forfeiture on alienation 'by the first taker. In E wing v. Barnes the court most explicitly rested its decision on the doctrihe of repugnancy as referred to in the cases > of gifts over on intestacy. "This is clearly an attempt," ,said Mr. Justice Bailey, "to create a limitation in the nature of a contingent remainder or of an executory devise. Such limita- tion being clearly inconsistent with the devise in fee, cannot be sustained. This result clearly follows from the doctrine laid down by Chancellor Kent ^^ and adopted by this court in Wolfer v.. Eemmer." In recent cases the court has not only repudiated Swing v. Barnes,, Silva v. Hopkinson^^ and Palmer v. Cook^^ but has clearly recognized that while shifting executory devises in general are valid, gifts over by way of forfeiture on aliena- tion by the first taker and gifts over on intestacy are void for 410; Lambe v. Drayton, 182 111. not be -done. Upon the absolute 110, 116; Dalrymple v. Leaeh, 192 transfer of an estate, the grantor 111. 51, 56 ; Wolfer v. Henmier, 144 cannot, "by any restrietwns or limi- 111. 554. • _ tations contained in the instrument 8 This even appears from the ex- of transfer, defeat or annul the amination of the lS,nguage of the legal consequences which the law Court in cases where the gift was annexes to the estate thus trans- in fact a gift over on intestacy or f erred. " on alienation by will. Thus in Wil- <> 156 111. 61 ; ante, § 46^9. son 1). Turner, 164 111. 398, 409, the lo 158 111. 386; ante, §469. Court, per Craig, J. said: "By the "159 111. 300; ante, §445. limitation over the testator under- 12 4 Com. 270. took to take away the absolute prop- i3 Johnson v. Buck, 220 111. 226, erty in the rents which had been 235; Morton 1;. Babb, 251 '111. 488, conferred on the wife by a preced- 492. ing clause in the will. That could i^ Ante, § 462. Kales Fut. Int. — 35 545 § 472] FUTURE INTERESTS [Ch. XVIII special reasons, and that the reason of repugnancy, so far as it may be a reason at all, applies only to the latter class of shift- ing interests. ^^ TITLE III. BY MEANS OP TRUSTS— WHETHER CREATED INTER VIVOS OR BY WILL. §472. Equitable springingf and shifting interests valid: So far as equitable springing and shifting future interests are con- cerned, their general validity, apart from the question of remote- ness, and the rules restricting the creation of gifts over by way of forfeiture on alienation, may be entirely relied upon.^^ TITLE rv. VALIDITY OP GIPTS TO CLASSES. § 473. Under the feudal land law: If under the feudal land law a conveyance were attempted to be made to a class none of whom were in esse, without any preceding estate whatever, it failed entirely ^^ for two reasons : First, because there was no transferee in esse; and second, because springing future in- terests even to an ascertained transferee were void. If a con- veyance were attempted to A and his children "bom and to be born," or to the children of A "born and to be born," where one chUd was in esse, the gift to the after-born child would, if valid, have been a shifting interest divesting pro tanto interests already vested in possession. This was contrary to the feudal rule and the gift to the after-born child failed entirely.^* 15 Mayer v. McCracken, 245 lU. See also Caruthers v. McNeill, 97 551, 557; Williams v. Elliott 246 lU. 256; Young v. Harkleroad, 166 111. 548, 552; Porbes v. Porbes, 261 111. 318, and Giles v. Anslow, 128 111. 424, 430. ' IlL 187; Hull o. Ensinger, 257 111. 16 Gray's Rule against Perpetui- 160. ties, § 69. In Wilson v. Gait, 18 In the following cases there was 111. 431, a springing trust by deed a shifting equitable interest by way was fully sustained. ' of trust: Glover v. Condell, 163 111. Observe the following examples 566. See also Banta v. Boyd, 118 of springing equitable interests of 111. 186; Young v. Harkleroad, 166 this sort: Rhoads v. Rhoads, 43 111. 318; Arnold v. Alden, 173 111. 111. 239; Blatchford v. Newberry, 229; Johnson d. Buck, 220 111. 226; 99 111. 11; Gilman v. Bell, 99 111. Defrees «. Brydon, 275 111. 530, 546. 144; Blanchard v. Maynard, 103 it 1 Hayes on Conveyancing, 5th 111. 60; McCartney v. Osburn, 118 ed. p. 119; ante, §26. 111. 403; Hale v. Hale, 125 111. 399. is Id. 546 CH. XVIII] SPBINGING AND SHIFTING INTERESTS [§ 475 § 474. By devise after the Statute of Wills : By will spring- ing and shifting executory devises were allowed. This meant that the deviseTo'ircIass, none of whom were in esse, was valid even though no preceding interest was attempted to he con- ferred. The devise vested in the first memher of the class horn, subject to open and let in the others who were, by the proper interpretation of the devise, included. So if a member of the class were in esse when the testator died and if the devise were to those "born and to be born," the gift to the member of the class in esse took effect subject to open and let in the others.^* If by devise there is limited a life estate to A with a remainder to the children of A and the remainder vests in interest in one child born before A's death, it is subject to open and let in others born after the testator's death and before the death of the life tenant.20 § 475. By a conveyance inter vivos which can take effect as a bargain and sale or otherwise by way of use — (1) If the conveyance is to "the children of A bom and to be bom" and A has at the time of the conveyance no children, can the after- born children of A take? This is purely a question of whether, or how far, a springing interest to persons not in esse may arise by bargain and sale or covenant to stand seized, for a deed in the usual form can always take effect as one or the other, if necessary in order to sustain its validityl^^ As to a covenant to stand seized to the use of a person not in esse there should not be the slightest doubt about its effectiveness so long as the cestui que use comes within the consideration of blood. Professor Gray, in his Rule against Perpetuities,^^ has set out the reason- ing upon which a bargain and sale to a person not. in esse is to be, sustained. Owing, however, to the turn which the authorities in this state have taken in regard to the problem discussed in the next section, the application of the views set out must be regarded as in doubt. In Kepler v. Castle ^s the court appears to have expressed a definite opinion that a deed to "the heirs" loMogg V. Mogg, 1 Mer. 654; ''o See ante, §308. Gooch V. Gooch, 14 Beav. 565; Ed- 2^ Ante, §§ 62, 456. dowes V. Eddowes, 30 Beav. 603; 22 §§ 61-65. ~ Cook V. Cook, 2 Vern. 545; Theo- 23 281 111. 444. See also Duffield bald on Wills, 7th ed. 311. ■;;. Duffield, 268 111. 29. 547 § 476] FUTURE INTERESTS [Ch. XVIII of a husband and wife who were then alive is void because no heirs are or can be ascertained when the deed becomes effective. § 476. (2) Suppose A has at the time of the conveyance a child in esse: It is well settled that if the conveyance be merely to the "childi^n of A," and A have existing children,' they alone will take, and after-born children of A are excluded.''* This goes upon the ground that, by the proper construction of .the deed, the grantor intended that only existing children should take.^^ How, then, shall we deal with the case where the grantor, by using the words "born and to be born," has expressed his in- tent that all the children which A may have shall take? Can such an intent be given effect ? This is a question of the validity of shifting interests. Will the children in existence at the time the deed is executed take the fee subject to open and let in after-born children? This question has in other jurisdictions very properly received an affirmative answer.^^ Two very recent Illinois cases have answered the question in the negative-^'' In Morris v. Caudle^^ the conveyance ran to a child in esse arid his ' ' own brothers and sisters. " He had no brothers and sisters at the time the deed was signed, but one was afterwards born and lived two months. The deed was held to have taken effect as to the one in existence when it was signed but not as to the child afterwards born. This was supported upon the hypothesis that the deed was delivered either before or after the death of the subsequently born child. Upon the latter assumption the case is clearly correct. If, however, the deed was delivered before the birt^ of the after-born child, then, since the grantee in esse had no brothers and sisters at that time, the deed must, by its proper construction, have included all the brothers and sisters of the grantee in esse and to be born.29 -^e have, then, a holding that such an intent cannot be given effect in a deed in the ordinary form in use in this 2'traloon V. Simshauser, 130 111. Mellichamp, 28 S. C. 125; Pieree '«. 649; Elphinstone on Interpretation Brooks, 52 Ga. 425. ' of Deeds, p*. 358. 2' See also Cooper v. Cooper, 76 25 Post, § 564. 111. 57, 6o, 66. 2»Mogg V. Mogg, 1 Mer. 654; ss 178 111. 9. Kales' Cases on Future Interests, 29 See, for instance, Weld v. 232 ; 3 Preston on Conveyancing, Bradbury, 2 Vern. 705, where upon a 555; 1 Hayes on Conveyancing, 5th devise to children of A, A having ed. 119, ante, § 452 ; Mellichamp v. no children at the time the will 548 Ch. XVIII] SPEINGING AND SHIFTING INTERESTS [§476 state. Miller v. McAlister,^'^ is more palpably to the same effect. The deed there involved conveyed to M. B. McA. ' ' and her chil- dren horn and to be born. ' ' It was held that only the children born when the deed was delivered could take. One born after- wards was, the court held, properly excluded.^^ So serious and direct an interference with the expressed will of the grantor deserves some explanation. For authority the Supreme Court cites only its owii case of Faloon v. Simshauser.^^ ' This, however, does not touch the point at all, since there the conveyance was to A "and her children" and by the proper construction of the deed only children in existence at the time the deed was executed were designated. So far as the matter was considered upon principle, the court says in Miller v. Mc- Alister:^^ "A grantee must be in esse at the time the deed is executed, otherwise no title will pass by the deed." In short, you cannot by deed have an immediate vested gift to one per- son which will afterward be divested pro tariio in favor of an after-born child. You cannot do by deed what you can do by will.5* Such a rule is reactionary. It is the application of a principle which got its life from the feudal system of conveyanc- ing.8' It ignores the fact that every modern deed containing the recital of a consideration may, if desired, operate as a bar- gain and .sale under the Statute of Uses,^* and that, whatever supposed difficulties there may be with regard to a bargain and sale to persons, none of whom are in esse,^'' there can be no doubt about the validity of the limitations where there is one grantee in esse who might have paid the consideration and taken the whole legal title a,t once.** It ignores, too, the freedom which such modern legislation as sec. 1 of our Act on Conveyances ^* may have introduced.*" was made or at the death of the ss Ante, §§ 26, 451. testator, it was held that all the ss Ante, § 456. children of A born at any time a ' Ante, §475. were included. < 3S i Hayes on Conveyancing, 5th 30 197 111. 72. ed. 119; ante, §452. 'iSee also Duffleld v. Duffield, ' 39 R. L. 1827, p. 95, §1; E. S. 268 111.29; Dick ■». Bicker, 222 111. 1845, ch. 24, §1 (p. 102); E. S. 413, 416. 1874, ch. 30, § 1; 1 A. & D. E. B. S. 32 130 111. 649. pp. 75, 100. 33 197 111. 72, at p. 77. ' *» Ante, § 458. 3* Post, § 467. 549 § 477] FUTURE INTERESTS [CH. XVIII § 477. (3) Suppose that by deed the limitations are to A for life remainder to the children of A "born and to be bom," and one child is in esse at the time of the conveyance: On principle there is no difference between the situation of the after-born child in this case and that of the after-bom child where there is no preceding life estate. If he cannot take where no preceding estate is limited then he cannot take in the case now put. Yet our Supreme Court is committed to the rule that when an estate tail is created by deed, which the statute turns into a life estate in the donee in tail with a remainder in fee to his children vested and indefeasible on the birth of any child, the remainder opens during the life of the life tenant to let in after- born children.*! It is difficult to believe that the same result will not be reached when the court has before it a case where there is limited by deed, a life estate to A with a remainder vested in A's children on birth.*^ § 478. By the creation of equitable interests in favor of the class: If the interest of the class is equitable there is, it is believed, no reason why (apart from such special rules as the Rule against Perpetuities) the gift to the class should not be carried out as it is expressed. If land be limited to trustees upon trust, with active duties, for the children of A "born and to be born," the after-bom children are entitled whether any were in esse when the deed was executed or not and whether there is any preceding life estate or not. TITLE V. ALIENATION OF SPRINGING AND SHIFTING PITTTJEE INTERESTS IN LAND— PARTITI0N.*3 § 479. By descent, devise, release, and sale on execution: As an executory devise, before coming into possession, is never vested the problem of how far such an interest is alienable may be referred to the more general question of how far future in- terests not vested are alienable. It would seem safe to argue *i Richardson v. Van Gundy, 271 held the remainder to the children 111. 476 ; Moore .v. Reddel, 259 111. of the life tenant vested, alflo held 36 ; Kyner v. Boll, 182 111. 171. that the remainder opened to let in 42 Indeed, the Supreme Court in after-born children, its first opinion in Hill v. Hill, 264 *^ As to partition of executory 111. 219 (not published), where it interests, see ante, § 398. 550 Ch. XVIII] SPRINGING AND SHIFTING INTKBESTS [§ 480 that there was as much freedom in the alienation of executory devises as in the alienation of contingent remainders.** If so the executory devise may pass by descent *^ or devise, provided always of course, the death of the executory devisee be not itself such an event as prevents the executory devise from ever com- ing into possession. So, the, executory devisee's interest may be released to the holder of the preceding interest *® just as a con- tingent remainderman may release to the holder of the particular estate.*'' It seems, however, that an executory devisee's legal interest is not subject to sale on execution.** § 480. By a conveyance to a stranger inter vivos — Validity at law: The difficult question is this: Can the executory devisee convey inter vivos by an instrument sufficient to pass his future interest if it had been vested ? If the deed contain covenants of title doubtless the doctrine of estoppel may be invoked to pass any interest subsequently becoming vested.*' In the absence of any statute or ground of estoppel it seems to be the rule of the English cases that an executory devise, like a contingent remainder, is not transferable by deed of grant to a stranger.^" Why is this? A contingent remainder was not transferable in this manner because, first, feudally it was noth- ing until it was vested, and, second, a feudal public policy for- bade such conveyances, as being champertous.^^ Until Pells V. Brown,^"^ in 1620 — that is for nearly a century after executory devises came to be recognized as valid under the Statute of Wills of Henry VIII — there were indications that they were to be put on the same footing as contingent remainders.^^ Per- haps it was during that time that the rules applicable to the ^■*Ante, §§320 et seq. ^9 Smith v. Carroll, 286 111. 137; *" AcWess V. Seekright, Breese Gawin v. Carroll, 276 111. 478, 481 ; (111.) 76; Blackstone v. Althouse, ante, § 321. As to how far an ex- 278 111. 481; Fitzgerald i). Daly, ecutory devise may pass by estoppel 284 111. 42. upon a lease and release, see Ridge- M Williams v. Esten, 179 111. 267. way v. Underwood, 67 111. 419, 428. But see Oummings v. Lohr, 246 111. oo Smith on Executory Devises, § 577; ante, § 320a. 751; 2 Preston on Abstracts, 284.. "Ante, ^ 320a. si ^nte, § 48. "Eidgeway v. Underwood, 67 111. S2 Cro. Jae. 590; 2 BoU. Eep. 196. 419, 430; Jacobs v. Ditz, 260 111. 53 Gray, Eule against Perpetui- 98. ties, §§142-147, 159. 551 § 481] FUTURE INTERESTS [CH. XVIII transfer of contingent remainders came to control the convey- ance of an executory devise.. Then, by the time the conveyance of such interests ceased to be champertous, and executory de- vises, by becoming indestructibl e under Pells v. Brown, be came something,^* even before vesting, it was t "" ^tp tn f\ip7ifro tVio rule concerni ng their ,trp^''^'^!l ^^^1^t.y. Since our Supreme Court has followed the common law rule that contingent remainders are inalienable inter vivos, we should expect the court to fol- , low with the same strictness the rule that springing and shift- ing future interests kre inalienable inter vivos. Yet in two re- cent cases there are dicta to the effect that where "the identity of the executory devisee is certain and the object of the devise is fixed, so that upon the happening of the contingency the executory devisee will take the estate, the future interests is assiffnable and transmissible. ' ' ^^ Very likely the court was only referring to transmissibility by descent. § 481. In equity: In equity at least springing and shifting future interests are assignable ^^ in the sense that the attempted conveyance will be treated as a contract to convey, of which equity will give specific performance if the proper requirements as to the consideration given have been fulfilled,^^ and if the event has happened upon which the future interest is to take ef-. fect.^® The conveyance, however, must show an intent to trans- fer the future interest. As to when the instrument of convey- ance sufficiently shows such an intent, it is believed that no dis- tinction need be made between the case of a legal executory devise and springing and shifting equitable interests by will. The careful conveyancer, of course, will so draft 'the instru- ment that the future interest to be transferred is expressly de- scribed and mentioned, leaving no doubt as to the intention of the transferor to convey it. Suppose,, however, the future interest is not mentioned ex- 04",These limitations [executory 481, Farmer, J., said: "It is gen- devises} are not held to be mere erally, though 'perhaps not universal- possibilities, but are regarded as ly, held that executory devises are substantial interests or estates," alienable when the devisee is an per Walker, J., in Waldo v. Cum- ascertained person." mings, 45 111. 421, 428. oe Smith on Executory Devises, 65 Per Cartwright, J., in Black- § 749. stone V. Althouse, 278 111. 481, 486. bt See ante, §§ 369 ei seq. In Gawin v. Carroll, 276 111. 478, 58 Cummings v. Lohr, 246 111. 577. 552 Ch. XVIII] SPRINGING AND SHIFTING INTERESTS [§ 481 pressly. Suppose, for instance, thefe is merely a quit claim deed from the executory devisee. If the transferor has a present, as well as a future interest in the property mentioned in the deed, it seems clear that there will be no expressed intent to convey the future interest,^^ and it seems to make no difference whether the quit claim deed be gov- erned by the law as it stood before *" the act of 1872 concern- ing the effect of the statutory quit claim deed, or after that act.*^ Even where the grantor and grantee are co-tenants and their quit claim deeds are mutual and by way of partition, only the interest in possession is affected and the future interest remains as it was. Thus, if each has an undivided interest in fee with a gift over in case he dies without children to the survivor, upon a partition and giving of quit claim deeds each will hold the , fee which is allotted to him, but with a gift over to the survivor if he dies without children.** Suppose, however, that the grantor has only a future interest in the land mentioned and nothing else. Is a quit claim deed in the usual form, without mentioning any future interest, suffi- cient in equity to transfer the executory devise ? The cases seem inclined to answer this question in the negative. In Kingmcm v. Harman,^^ the testator (as the court construed the will there in- volved) created a springing executory interest by devising lands to his children to be divided among them when the youngest at- tained the age of twenty years.** The guardian of the children by proceedings in the county coUrt,*^ mortgaged the children's interest. On a bill to foreclose the mortgages it was assumed that since the children's interest was contingent (as the court 59 Bidgeway v. tJnderwood, 67 III. «2 Thompson v. Becker, 194 111. 419; Glover v. Condell, 163 111. 119; Striker v. Mott, 28 N. Y. 82. 566; Thompson ■«. Becker, 194 111. Contra, Coates Street, 2 Ashm. Il9. -See also Shephard v. Clark, (Pa.) 12. 38 111. App. 66. Compare, however, 63 131 m. 171. 6o£f V. Pensenhafer, 190 111. 200, e* The trustees took apparently 216. for a term of years, until the young- '" Bidgeway fe. Underwood, 67 111. est reached the age specified. They 419. did not hold the fee subject to a «i Glover v. Condell, 163 111. 566; trust to divide and distribute it Thompson v. Becker, 194 111. 119. among the children. See also Shephard v. Clark, 38 111. os No objection was made to these Apjj. 66. Compare GofE 1;. Pensen- proceedings, so it is assumed that hafer, 190 111. 200, 216. they were proper. ' ' § 482] FUTURE INTERESTS [Ch. XVIII put it) the wards had no assignable estate. It may be that the court meant that under the statute the guardian had no power to convey an interest which was not assignable at law by the party if he had been of age.*® Such a view would dispose of the case without any decision as to whether in equity, the deed would be taken to refer to the future interest and thereby op- erate in equity as if made by the ward if of full age. Both Nevius v. Gourley ^'' and Cassem v. Kennedy,^^ present instances of \he attempted transfer of legal executory devises. In both cases there had been a conveyance by deed and in both relief was sought by the transferee. In neither case, however, had the event happened upon which the future interest was to take effect. In the first case it never could take effect and so the assignee of the future interest by way of mortgage, was denied any foreclosure. In the latter case the assignee brought a bUl to construe the will and this was dismissed. The decision might have been put on the ground that the actual question might never require a decision. Upon the plaintiff's, applica- tion, however, the court declared that the executory devisees' deed "conveyed nothing." TITLE VI. WHEN AN EXECUTORY INTEREST VESTS IN INTEREST. § 482. Springing and shifting future interests never vest in interest till they take effect in possession or are turned into vested remainders: ''« It does not follow, however, that an executory interest is always contingent until it vests. It may be an interest which is neither vested nor contingent,^^ but merely what is known as a "certain executory interest."'^ Such is a gift to take effect at a certain time in the future, 8«Shepliard v. Clark, 38 111. App. Becker, 194 lU. 119, 122; rriedman 66; ante, §320. v. Steiner, 107 Ilf. 125, 132, 133. 67 95 m. 206; 97 IlL 365. Any expression to the contraij in 68 147 111. 660. Hempstead v. Dickinson, 20 111. 193, '"> Gray 's Ride against I^erpetni- 196, must be regarded as a slip. ties, §114; Glover v. Oondell, 163 n Gray's Rule against Perpetui- m. 566, 593: "By an executory de- ties, §114;. 1 Fearne, Contingent vise no estate vests upon the death Remainders, 1, Butler's note, of tBe testator, but only on some v Smith on Exiecutory Derises, future contingency." Thompson «. §5 85,90,117,301. 554 Oh. XVIII] SPRINGING AND SHIFTING INTERESTS ( [§ 482 which is sure to arrive — as a gift to come into possession after ten years,'''^ or after a certain life.'^* In Blanchard v. Maynard,''^ it was recognized that the certain executory interest could not be vested. There the testator de- vised real estate and personal property to trustees to hold and manage for ten years. At the end of the ten years all the estate and income was to be distributed and vest in the testator's three sons, with a gift over to the survivors in case any son died leaving no issue before the ten years had elapsed. One of the sons did die b)efore the ten years had elapsed and his wife claimed dower and a share by descent. Her bill was, however, dismissed and this was affirmed. Assuming the rule of Buck- worth V. Thirkell,''^ to be the law of this state, it is clear that the ground that the son had no vested interest in the lands in- volved till the ten years had expired was sufficient.''"^ In Burton v. Oagnon,''^ however, we have an instance where the opinion published as that of the court takes the position that a shifting executory devise is a vested interest. The will involved in that case, after making a gift to children, which the court recognized as an absolute one, provided for a gift over in case "all of my children die intestate and without lawful issue and not survive my wife. ' ' A decree for the complainants that the gift over was ineffective as against the first takers was affirmed. One of the grounds for this holding was that the executory devises were precluded by a former decree in parti- tion to which they were parties. To this the executory devisees answered that their interest was contingent and so it could not have, been the subject of adjudication in the partition suit. The court replied that the interest of the executory devisees was "Gray's Eule against Perpetui- '3 103 111.60. ties, §114; Blanchard v. Maynard, ' a gee poat, §484. 103 111. 60 ; Bhoads v. Bhoads, 43 '' It seems, however, that it is 111. 239, post, § 732. also law that where the owner of '* In Young 1;. Harkleroad, 166, a reversion dies before the termina- 111. 318 there was a not uncommon tion of the life estate, his widow gift to take effect after the death is not entitled to dower: Kellett v. of the testator ^s wife, without ap- Shepard, 139 HI. 433, 449; ante, parently disposing of any interest § 30. to the wife in the meantime. No '» 180 111. 345. question, however, arose on the na- ture of the gift in question. 555 § 483] FUTURE INTERESTS [Ch. XVllI ■ vested — apparently upon some such view of what interests are vested as afterwards obtained in Boatman v. Boatman ''^ and Ghapin V. Nott.^'> The court said: *^ " Here the persons to take were in being and ascertained, and by the language of the limita- tion it was to take effect when the contingency indicated might happen. That was sufficient. The fact that the event was uncer- tain upon which the limitation over might become effectual was immaterial." This view is only the opinion of a minority. Three judges dissented entirely, and Mr. Justice Wilkin, while agreeing in the result, did "not consent to the construction placed upon the will, ' ' — that is, he dissented from the view that the future interest was vested.®^ ' TITLE VII. INDESTRUCTIBILITY OF SPBINGING AND SHIFTING FUTUBE INTBEESTS. § 483. General principle : When a future interest is spoken of as destructible, destructibility by a rule of law defeating the expressed intention of the settlor, is referred to. Thus, the rule of law which requires certain contingent future interests after a particular estate of freehold to vest in possession at the termination of the preceding estate or fail entirely,** made the future interest destructible by the act of the holder of the preceding estate in prematurely terminating the preceding in- terest by forfeiture or merger. The idea of destructibility, then, became associated with the power of the owner of the first in- terest to destroy the second. , Since Pells v. Brown,^* in 1620, it is fundamental t hjtt spring.- ing ain d shifting interests bv wav of use or devise are n ot destructible in this sense bv any act of the first taker. ^" There is 79 198 111. 414; ante, §365. devises] are not held to be mere 80 203 III. 341 ; ante, § 366.t possibilities, but are regarded aa sip. 356. substantial interests or estates." »2 Post, § 725. 85 Williams v. Elliott, 246 111. 83^mte, §§28, 97, 310 et seq. 548, 552; Jacobs v. Ditz, 260 UL siCro. Jao. 590; 2 EoU. Bep. 196, 98; Blackstone v. Althouse, 278 lU. 21'6. The fact that executory de- 481, 485, 486; Morris v. Phillips, •vises are indestructible makes it 287 111. 633. proper for our Supreme Court to say Where the first taker has a fee in Waldo v. Cummings, 45 111. 421, subject to a shifting executory de- 428: "These limitations [executory vise over, there is no reversion in 556 CH. XVIII] SPRINGING AND SHIFTING INTERESTS [§ 484 no exception to this in the case where the gift over, is to take effect only if the first taker alienates in a particular manner. In such cases the gift over is usually, held invalid as being an illegal forfeiture upon alienation. *« But if the gift over be held valid, as in the case of an executory limitation conditioned to take effect upon the first taker's dying without issue him sur- viving and intestate, it is clear that if the first taker alienate by deed or will the event will never happen upon which the gift over is to take effect.. Hence, it will fail. In a very loose sense it may be said that the conditional limitation is destruct- ible by the act of the first taker. It was only in this sense that it was hinted in Friedman v. Steifier.^'' that the future interest might be defeated. TITLE VIII. WHETHER DOWER IN THE TIRST TAKER'S FEE IS DEFEATED BY THE TAKING EFFECT OF A SHIFTING GIFT OVER. §484,' Buckworth v. Thirkell:*^ In this case a fee was devised to A with a shifting executory devise over to B if A died under twenty-one without having issue. The event happened. The executory devise took effect. It wa,s held, however, that A's wife had dower as against the executory devisee. This has recently been followed in this state.^' The soundness of this has been questioned and it should Ipe observed that where A had a fee with a general power to appoint by deed or will and appointed in his lifetime to B and then died, A's wife did not have dower.^" Yet the cases are the same in principle. The appointee, when the power was exercised, took a shifting in- terest cutting short the previous fee of A.- which the first taker 's , interest can note; 6 Gray's Gases on Prop., 2nd merge: Morris v. Phillips, 287 111. ed. 588; 1 Scribner on Dower, 2nd 633; Stoller v. Doyle, 257 111. 369. ' ed. 302; 10 Am. & Eng. Ene. 2nd 86 Post, §§717-725. ed. 161; ante, §465, note 72. " 107 111, 125; post, §§724,J25. 89 Aloe i). Lowe, 278 lU. 233. 88 Coll. Juris., 322; 3 Bos. & Pul. so Sugden on Powers, 8th ed. 144. 652, note; Co. Lit. 241a, Butler's 557 CHAPTER XIX. FUTURE INTERESTS IN PERSONAL PROPERTY.i § 485, Their validity— In general: Where personal prop- erty is conveyed either inter vivos 2 or by will ^ upon certain trusts, it seems that the equitable future interests of whatever sort are validly created.* The important problem of his chap- ter is : How far are future interests in personal property valid where there is no intervention of trustees and no trust created? So far as future interests in chattels real are concerned we have no actual decisions. Our Supreme Court has, however, on two occasions recognized the validity of a gift by wiU after an expressed life interest in a chattel real. In Waldo v. Cum- mings ^' the court recognized the force of Manning's case* and Lampet's ca^e'' which established the validity of such a future interest. In Welsch v. Bellville Savings Bank * the same result was approved. As to the creation of future interests in chattels real by a transfer inter vivos, there is nothing in thife state ex- cept what may by inference be included in the dicta and de- cisions recognizing the validity of future interests in chattels personal ^ created in this manner. As regards chattels personal it seems to be the law here that the future interest limited by will after a gift for life is en- forcible. i" The validity of the same future interest when at- lAnte, §§ 107-112. « 8 Co. 94b. 2Welseh v. Belleville Savings ^ 10 Co. 46b (1612). Bank, 94 lU. 191, 205. s 94 m. 191, 204. sHetfield v. Fowler, 60 111. 45; 9 See infra this section. Buckingham v. Morrison, 136 111. 10 Waldo v. Oummings, 45 111. 437; Davenport v. Kirkland, 156 421; Burnett «. Lester, 53 111. 325; 111. 169; Glover v. Condell, 163 111. Trogdon v. Murphy, 85 111. 119; 566; Ransdell 1;. Boston, 172 111. Walker v. Pritchard, 121 lU. 221; 439, semble; Chapman v. Cheney, Welsch v. Belleville Savings Bank, 191 lU. 574. 94 111. 191, semble; In re Estate * Gray on Eule against Perpetui- of Cashman, 134 HI. 88, semble; ties, §i 75, 78, 87. Dickinson v. Griggsville Nat. Bk., 5 45 111. 421, 427. 209 111. 350, 353, semble; Dean v: 558 CH. XIX] FUTURE INTERESTS IN PERSONALi PROPERTY [§486 tempted to be created by deed might well have been regarded as left in doubt by the dictum of Mr. Justice Mulkey in Welsch V. Belleville Savings Bank.^^ But since the case of McCall v. Lee 1^ the rule in this state is settled, that such an interest can be limited by deed. The case goes beyond that proposition be- cause there the instrument, by which the future interest was created, was not even a deed. It was simply a written contract founded upon valuable consideration accompanied by a delivery of the personal property itself to the first taker. §486. Exception where articles axe necessarily consumed in the using:' It is well settled that upon a gift to A- for life of specific chattels personal which are by their nature to be en- joyed and- used -by consuming them, as a cellar of wine, the absolute property passes to A. He may consume them and he will be answerable to nobody. This proposition is clearly recognized by the dicta of our Supreme Court.^^ Suppose, now, that a future interest in these same chattels be limited to B absolutely after the death of A, to whom a gift for life is made, and that at the time of A's death a portion of them have not been consumed, will the future interest take effect as to the unconsumed portion as a valid executory devise after an ab- solute interest, or will it fail as an attempted gift which is void for uncertainty ? ^* This is a question of some nicety upon the authorities at large.^^ Our Supreme Court has not hinted at the result which it might reach.^^ ' Northern Trust Co., 266 111. 205. Dickinson v. Griggsville Nat. Bk., See also Wilson v. Turner, 164 111. 209 HI. 350, 353; 2 Williams Exec- 398; 55 111. App. 543; Bandolph v. utors, 7fli Am. from 9th Engl. ed. Hamilton, 84 111. App. 399. star page 1253. In Defrees v. Brydon, 275 111. 530, i* Ante, § 722. 542, "Executory devises are appli- is in favor of the future interest cable to testamentary dispositions in such a case: Hayle v. Burro- of personal property as well as real dale, 1 Eq. Cas. Abr. 361, § 8 -estate." (1702); Healey v. Toppan, 45 N. "94 111. 191, 205. H. 243, 260, semble. 12 120 111. 261. See also Thorn- Contra: Randall v. Eussell, 3 ton V. Davenport, 1 Scam. (2 111.) Meriv., 190 (1817), semble; An- 296, 299, eonible, accord. drew v. Andrew, 1 Coll. Ch. Cas. "Burnett v. Lester, 53 HI. 325, 686, 690 (1845). 334; Welsch v. Belleville Savings is Observe, however that if the Bank, 94 lU. 191, 205; Bucking- chattels personal specifically be- ham V. Morrison, 136 111. 437, 446; queatheS be not of the sort neces- 559 § 487] ' FUTURK INTERESTS [CH. XIX § 487. Nature of the future interest whether legal or equi- table: Is the valid future interest in personal property legal or equitable? In Welsch v. Belleville Savings Bank,^'^ Mr. Justice Mulkey said : "In equity Arthur Herold had a vested remainder in the $4,000 in question. "We say in equity, for the whole doctrine of remainders in personal estates is a product' of purely equitable growth. Strictly speaking it is unknown to the law as distinguished from equity." This language was dictum in the case and in view of the number of authorities English and American to the effect that the future interest is legal,i8 the view of the learned judge may be doubted. § 488. Whether vested or executory ^^ — Where a chattel real is involved: The more difficult theoretical question is whether the future interest after a present interest for life is a vested or an executory limitation. 20 So far as we may judge from the language of our Supreme Court the future interest in case of chattels real is to be regarded as an executory limitation after an absolute interest in the first taker.^i This was cer- tainly the view upon which the earlier English cases pro- ceeded.^^ "The reason why there could be no estate or. interest for life in a chattel -real, " says Professor Gray,?^ "was the technical one that in tjie eye of the law a life estate was greater " sarily consumed in the using, the Eq. (S. C.) 353n; Brummet v. Bar- addition of a power for life in the b^r, 2 Hill, (S. C.) 543; Rogers v. ' first taker to sell, dispose, or use up Randall, 2 Speers. (S. C.) 38. for his own benefit {post, §§648 et i9 On vesting of legacies in gen- seq.; Green v. Hewitt, 97 111. 113, eral, see post, §§ 495, et seq. ■ 117, semble; Siegwald v. Siegwald, -" For a full treatment of this 87 111. 430; Welsch v. Belleville question see "Future Interests in Savings Bank, 94 111. 191, 202; Personal Property," by John Chip- Walker V. Pritchard, 121 111. 221, man Gray, 14 Harv. Law Rev. 397. 229-230), will not prevent the sec- 21 Waldo i;. Cummings, 45 111. 421, ond taker from acquiring what may 427 (adopting the doctrine of Man- be left at the first taker's death. ning's Case & Lampert's Case); See post, § 726. Welsch v. Belleville Savings Bank, " 94 111. 191, 204. 94 111. 191, 204. 18 "Future Interests in Personal 22 "Future Interests in I*ersonal Property," by John Chipman Gray, Property," by John Chipman Gray, 14 Harv. Law Rev. 397, 417; Gray's 14 Harv. Law E'ev. 397, 410, 411. Rule against Perpetuities §§86, 88; 2s "Future Interests in Personal Hoare i;.' Parker,. 2 T. E. 376; Property," by John Chipman Gray, Anonymous (1802), 2 IJaywood (3 14 Harv. L?,w Rev. 397, 402. N. 0.) 161; Duke v. Dyches, 2 Strob. 560 CH. XIX] PUTUBE INTERESTS IN PEESONAL, PROPERTY [§ 489 than any estate for years; and therefore as a term for years, even for a thousand years, would merge in a life estate, so a grant of a term for years to one for his life purported to carry something which was greater than a term for years and which carried merely a term for years only because that was all there was to carry, and did carry the whole term." § 489. Where the limitation is of a chattel personal — The language of our Supreme Court: As regards the future in- terest after a limitation for life in chattels personal, it must remain doubtful, upon the language of the court, whether it is vested or executory. In ^Yaldo v. Gummings ^* the court said, in substance, that the gift of a chattel ^^ for life came finally to be held to be a gift of the use only, and that the remainder over was good as an executory devise. This state- ment contradicts itself. If the first taker has merely the use for life, the second taker must have the absolute property and so a vested and not an executory interest. The language of Mr. Justice Mulkey in Welsch v. Belleville Savings Bank ^6 is, therefore, more consistent. "When," he says, apparently speaking of a chattel personal, "a chattel, is given to one for life, with a limitation over to another the first tak^r really acquires nothing but the right to the use, and such is the recog- nized doctrine at the present time. ' ' In Glover v. Condell ^t we find an apparent subscription to the statement from the American & English Encyclopedia of Law ^s to the effect that "all future interests in personalty, whether vested or con- tingent, and whether preceded by a prior interest or not, are in their nature executory. "It certainly is a little difScult to see how, if the interest be vested, it can also be executory in the ordinary sense. Finally, in Hobiie v. Ogden 29 -n^e find the court saying that "the principles applicable to the vesting of real egtate apply generally in the case of personal property." 2*45111.421,427. chattel real for life had the abso- 25 The court did not speak of lute property and the gift over was chattels personal specifically, but good as an executory devise. Ante, such must have been the import' of § 488. its language since the theory that 26 94 m. 191, 204, 205. the first taker held the use for life 27 1^ m. gee, 586. never had any application where ^ Vol. 20, 1st ed. 930. a chaftel real was involved. On 20178 111. 357, 365. the contrary the one who took a Kales Tut. Int. — 36 561 § 490] FUTURE INTERESTS [Ch. XIX §490. The point actually decided: The language of our Supreme Court, then, will hardly settle anything concerning whether the future interest is vested or executory. Nor is the point involved in the usual case of a gift of a chattel personal to A for life and then to B absolutely. In such a case it does not become material whether B's interest is vested or executory. Professor Gray*" has, however, pointed out two test cases where the question does become vital. The second of these is this: Suppose chattels personal are bequeathed to A for life and there is no gift over. If A take an absolute interest, then, there being no gift over, the property on A's death must go to his executor or administrator. If, however, A has merely the use of the property for life there will be a reversion to the testator's executor. This exact case was presented to our Su- preme Court in Boyd v. Strahan.^^ It was there held that A had only the use for life and that after A's death the repre- sentatives of A's devisor might recover the property from the residuary legatees of A. This is in accord with the view of the earlier English cases. They proceeded upon the theory that the first taker for life had only the use for life and that the second taker had the absolute property.^* § 491. Whether the future interest in chattels personal is contingent upon the one who takes it surviving the life tenant or not: This is the same question which comes up in regard to remainders in real estate after a life estate.^* Even though the rules regarding the vesting of legacies apply, the interest in personal property is in futuro only for the convenience of the estate — to accommodate the life estate — and no contingency of survivorship is found by interpretation unless it be definitely- expressed.'* That in effect makes the problem of construction the same whether real or personal property is involved. Cases of this sort, where only personal property was involved, have, 30 "Future Interests in Personal 32 "Future Interests in Personal Property," by John Chipman Gray, Property," by John Chipman Gray, 14 Harv. Law Rev. 397, 413-414, 14 Harv. Law. Eev. 397, 410-411. 417. 33j,nte, §§329 et. seq. 3136 lU. 355. For other oases 34 po«t, §§503 et seq. But see jn accord with this see Professor In re Tritton, 6 Morrell, Bank- Gray's article, 14 Harvard Law Be- ruptcy Cases, 250. view, 397, 418, note 5; cases contra referred to pp. 417-418. 562. Ch. XIX] FUTUKE INTERESTS IN PEKSONAL PROPERTY [.§ 492 therefore,, already been classified with the cases involving re- mainders of real estate.*^ § 492. Rights of those interested in personal property ^^ in which future interests are created — Enjoyment in specie or conversion and investment — ^Where the intent of the settlor is expressed in words: The first difficulty to be met with is whether the first taker for life is to enjoy the property in specie, or whether it must be converted into cash, the proceeds invested, and the income only paid to the first taker for life. This is a question which in the first instance depends upon the expressed intent of the creator of the interests.*'^ Thus, where the gift after the limitation for life is of "what is left," it is held that the life tenant has the right to enjoy in specie, even to consum- ing or using up perishable and depreciating personal property.^* So, if the right be given to the first taker for life to use up and consume the subject-matter of the gift, he will be entitled to it in specie, even though it be given by a general or residuary clause and though the property may be such as must ordinarily be converted and invested and the income paid to the first taker for life.39 ssStriekland v. Strickland, 271 111. 614; ante, if 345, 346. S8 Questions on the subject mat- ter of this and §§ 493 and 494 come ' up most frequently in courts hav- ing probate jurisdiction upon the distribution of assets to the lega- tees. A draft of these sections was therefore submitted to the Hon. Charles S. Cutting, Judge of the Probate Court of Cook County, ask- ing how far they had stated the law as he was accustomed to lay it down in his court. In reply he said: "I think you may say, if you care to, that on this subject, your statement is quite in accord with tbe rulings of this court on the same subject." »T Buckingham ii. Morrison, 136 lU. 437, 449. ssWelseh v. Belleville Savings Bank, 94 Dl. 191, 201-203; Green V. Hewitt, 97 HI. 113, 117; Sieg- wald V. Siegwald, 37 111. 430. See post, § 648. 39 in re Estate of Cashman, 134 111. 88. Here the gift was of $3,000 for life. This must ordinarily have been invested by the executor and the income paid to the legatees for life. (See infra.) The executor, however, paid over the money in specie to the legatee and the credit for this amount in his final account was sustained. See also Sheets v. Wetzel, 39 111. App. 600. It is often an important and dif- ficult question to determine whether the first taker has a right to use up and consume the principal or no^. The inclination seems to be to hold that a gift to the second taker after the first taker's life interest of "all that remains" or words of like effect, is suf&cient to give the first taker. the power to use up and con- 563 § 4r93] FUTURE INTERESTS [Ch. XIX § 493. Where no intent has been explicitly indicated by words: For the determination of the result to be reached in this sort of case certain rules have arisen founded upon the im- plicitly expressed intention of the testator. 1. If the bequest is of a specific legacy the first taker is en- titled to use the subject-matter of it in specie, and the second taker must receive the property at its value as lessened by any depreciation, which is the result of ordinary use.*" 2. Suppose the bequest be a general legacy and yet not a general residuary legacy : If the entire subject-matter of the general legacy- be money — viz: if the bequest be of a general pecuniary legacy — ^then the only proiSt which the life tenant can derive from its use arises from its investment.*^ The investment must, it is be- lieved, be in such securities as trustees are allowed to hold.** If the entire subject-matter of the general legacy be income bearing securities, not proper for trustees' investments, as shares of stock in a private corporation, can the stock be retained as an investment and the income used by the life tenant, or niust it be converted into cash and invested in proper trustees' securi- ties? If the former is the correct rule, then the result is the same, as if the stock had been specifically bequeathed. If the entire subject-matter of the general legacy be an income pro- ducing property of a wasting or depreciating character,*^ as a general gift of leaseholds or live stock, can the life tenant take the profits of such wasting property in specie or must they be converted and invested, and only the net income paid to the life tenant?** sume the principal fund: Qreen ■». 603; Leslie v. Moser, 62 111. App. Hewitt, 97 111. 113, semble; Walker 555. V. Pritehard, 121 111. 221; in re *2 Investment may be in real es- Estate of Cashman, 134 111. 88. In tate if the remaindermen do not 6b- Welsch V. Belleville Savings Bank, ject, but title must be taken to' life 94 111. 191, 201-202, a different re- tenant for life with remainder over; suit was reached upon the context Dee v. Dee, 212 111. 338, 355. of the will in other respects. *3 Por a more particular enu- 40 Welsch II. Belleville Savings meration of property of this de- Bank, 94 111. 191,. 206; Bucking- seription, see infra in this same ham V. Morrison, 136 111. 437, 446. paragraph., 4x Welsch V. BelleviUe Savings ** In Welsch v. Belleville Savings Bank, 94 111. 191, 206 semble; Bank, 94 111. 191, 206, the Court Sheets v. Wetsel, 39 111. App. 600, speaks as if any general be- 564 CH, XIX] FUTURE INTERESTS IN PERSONAL PROPERTY [§493 3. Supposp, as is frequently the case, the bequest is a gen- eral residuary gift of personal estate : *^ / In such a case the residue may consist of cash, personal prop- erty of a depreciating or wasting character {i. e., property 'the depreciation of which in using is in fact a consumption of capital, as in- the case of leasehold interests,** annuities, or chat- tels, such as live stock,*'^ or wagons, or machinery), chattels of a permanent or non-wasting character, such as pictures ,or ornaments, the actual use of which involves no necessary de- preciation or using up of the thing itself, interest bearing in- vestments proper for trustees to hold, and finally, improper trustees' investments, as stoelf in private corporations. As to the cash, if it is to be enjbyed by the life tenant at ail, it must be invested in proper trustees' securities and the income only appropriated by the first taker.*^ It seems en- tirely clear that the wasting or perishable property must be at once converted and the proceeds invested.*® As to chattels which may be spoken of as of a permanent or non-wasting char- acter, as pictures or ornaments, we have no very clear hint in our Supreme Court of the result which would be reached, s" No reason is perceived why they should be converted. The in- terest bearing securities which are proper trustees '' investments, the life tenant can take the income from as they stand. Those which are improper trustees' investments must,' it is believed, be converteji into cash and invested in such securities as it is quest of wasting personal property, *8 Burnett v. l/ester, 53 111. 325, whether residuary or otherwise, 835. must be converted and the proceeds *'' Id. invested. 48 Welseh v. Belleville Savings ■15 Welseh v. Belleville Savings Bank, 94 111. 191, 206. Bank, 94 111. 191, (bequest of "all « Welseh v. Belleville Savings my estate of whatever the same Bank, 94 111. 191, 206; Burnett v. inay consist"); Burnett v. Lester, Lester, 53 111. 325, 335; Biicking- 53 111. 325, (bequest of "all my ham v. Morrison, 136 111. 437, 447; personal property consisting of live Dickinson v. Griggsville ' Nat. Bk., stock, and also the interest on all 209 111. 350, 354. moneys and credits due me at my bo See, however, Dickinson v. death"); Buckingham v. Morrison, Griggsville >fat. Bk., 209 111. 350, 136 III. 437, 447, (general reaidu- 354. ary clause involved) ; Dickinson v. Griggsville Nat. Bk., 209 ill. 350, 854. ■ , ■ ■ 565 § 493] FUTURE INTERESTS [Ch. XIX proper for trustees to hold, and the income from these latter only, paid over to the life tenant. "^ This seems to be an ex- tension of the rule w^iich requires perishable or depreciating property to be converted. The reason which required a con- version in this latter case, was that unless such a course were pursued, it was certain that the second taker could not enjoy the property actually given him. In the case of improper trus- tees' investments there is no such certainty, but only a danger that the second taker will not so enjoy the property in question. Nevertheless, the improper trustees' investments must be con- verted in order to avoid such danger.^^ One reason for making a distinction between the different sorts of residuary property which must be converted, is that there are different rules fixing the amount upon which the in- come of the tenant for life is to be calculated. Under the rule of the English cases, perishable property is valued at the time of the testator's death and the life tenant is entitled to interest on that value from the testator's death. On the other hand, so much of the personal estate as is not in a proper state of in- vestment at the testator's death, or which has not since become so, must be valued at a period of one year after his death, and interest on the value so taken, be allowed from the testator's death at the standard rate.®^ "In some of the American cases," 51 Buckingham v. Morrison, 136 duty of the trustees to convert, in- Ill. 437, 448, semble, (partnership vest and pay over to the cestwi for interest must be converted). life, the income, or to permit the 92 In Buckingham v. Morrison, cestui for life to enjoy the profits 136 111. 437, 448, our Supreme Court of the partnership in specie. The said: "Gradually the meaning of above language may have applied to 'perishable' property has been en- the case of conversion by trustees larged so as to include securities and it does not appear that no dis- of a wasting nature, or any form tinction would have been made be- of investment of an uncertain kind, tween that case and the case of a or attended with risk. The conver- legal life interest in the residue of sion and investment here spoken of personal property, were thus required, whenever the os Williams on Executors, (7th property so devised by the testator Am. from 9th Eng. ed.) star page vras found at his death to be in- 1248-9. This is what our Supreme vested in ships, annuities, leaseholds. Court referred to in Buckingham v. railway shares, insurance, canal and Morrison, 136 111. 437^ 448, when it gas stocks, partnerships, etc." The said: "In the English cases, the actual point involved in that case, conversion is 'feigned' to have oe- however, was whether it was the curred at a given period, that is to 566 Oh. XIX] FUTURE INTERESTS IN PERSONAL PROPERTY [§ 494 our Supreme Court said in BucMngham, v. Morrison,^*' "each amount received from the conversion of the estate is distributed between the tenant for life and the remainder-man, by comput- ing what sum with interest at the standard rate from the date fixed for the beginning of the income will produce the amount so received at the time when it is received, and by investing tho original sum so computed as principal, and distributing the remainder as income. ' ' There are questions also as to when interest begins to run in favor of the life tenant,^' the standard rate of interest to be used,®" and whether the income in favor of the life tenant is to be computed at simple interest or with rests. *^ § 494. How may the second taker protect his property in- terest: In answering this, several distinctions must be taken: 1. If the tenant for life is entitled to the possession of the property in specie — as in the case of a specific bequest — no security can be demanded, unless there is a threatened damage.^® 2. If the first taker is entitled to the possession of the prop- erty in specie and has power, either express or because of the nature of the property, to consume and use it up, it is clear that no security can be demanded at any time. 3. Suppose, however, there is no right to the actual posses- sion and enjoyment of the property in specie — as if there is a general residuary gift of perishable or depreciating property, and no right in the owner for life to use it up. Must the legatee for life, in that case, before he can receive the actual property from the executors, give security for its proper conversion and investment ? The language of the court in Burnett v. Lester,^^ and in Welsch V. Belleville Savings Bank,^" certainly furnishes some say, a value is placed upon the 54 136 111. 437, 448. estate at the date of the testator's ss Buckingham v. Morrison, 136 death, 'or one year thereafter; the 111. 437, 447. estate is considered as converted ^^ jg, 448. into money at such date; this value '^ /(j. 448. is made a principal, upon which the 's Williams on Executors (7th Am. standard rate is computed to de- from 9th Eng. ed.) star page termine the income to he paid to 1253-3. the tenant for life until the trust »9 53 HI. S35, 335. estate is actually converted and so 94 111. 191, 206. invested." 8ee also Clifford v. Da- ■ vis, 22 111, App. 316. 567 §494] FUTURE INTERESTS [Ch. XIX ground for answering this question in the affirmative. In the latter ease it almost seems to have been made one of the grounds for the decision that "where a testator gives to one for life a certain sum of money out of his estate, with a limitation over to another, the former has no right to the possession of the money so bequeathed. The title thereto devolves upon the ex- ecutor, and it is his duty to see that the same is properly in- vested and that the annual accumulations are paid over to the tenant for life, and the principal to the remainder-man upon the former's decease."®^ Hetfield v. Fowler,^^ which is apt to be cited as the strongest case in support of the position that the probate court may re- quire the life tenant to give security as a condition precedent to his receiving the principal, does not, it is believed, support such a proposition. In that case the ,county court had decreed that the property be turned over by the executors upon the legatee for life giving security. This was reversed upon the ground that by the proper construction of the will creating the life interest the executors were the trustees of the fund and were directed to hold the principal and only pay the income to the life tenants.®^ The court did say, however: "At least, the exacting of reasonable security, on payment over of the funds, for its preservation for those entitled in remainder would seem to be no more than acting in the line of the faithful perform- ance of the trusts of the will." But this merely indicates that if the trustees choose to pay over the principal to the life tenant before the time of payment, in breach of trust, it would have only been decent at least to demand security. It does nptJn any way countenance the proposition that the probate court has any power to exact security from the life tenant.®* 6i>See also Sheets v. Wetsel, 39 distributing to the legatee for life, 111. App. 600, 603. In Leslie v. the trustees had no discretion but to Moaer, 62 111. App. 555, a bill was distribute and could not demand filed by the life tenant to compel security. the holders of the fund to invest 64 The -writer at first thought that as trustees should. 'f ' the language of the court in Het- 62 60 111. 45, 48. field v. T'owler ' went very far to- es This distinguishes the case from ward the establishment ,of a rule Waldo V. Cummings, 45 111. 421, that the Probate Court might re- 430, where the time having come by quire the legatee to give security, the express terms of the will for Upon submitting to the Honorable 568 Ch. XIX] FUTURE INTERESTS IN PERSONAL PROPERTY [§ 494 4. It has been suggested that, even if the first taker have no right to the possession of the property in specie, yet if the future interest is to take effect upon a contingency which may or may not happen, and not merely after the first taker's death, no security need be given by the first taker, unless cause be shown for so doing.®' The result reached in Gannon v. Peterson,^'^ may indicate that such a distinction would be sustained. There it was held that an executory devisee of real estate who was to take upon the death of the first taker without leaving issue him surviving, could not maintain a bill to prevent waste against the first taker in possessioh unless there were a strong probability Charles S. Cutting, Judge of the Probate Court of Cook County, the text as originally written dealing with that case, the following reply was received: "I notice you cite Hetfield v. Fowler, 60 111. 45, as holding that it is proper for the court exercising probate jurisdic- tion to require a bond as a condi- tion precedent to the turning over of the personal property to the life tenant, if I may use that expres- sion. I have never considered that courts of probate had this power, ^ and although, under the peculiar cir- cumstances of the Hetfield ease the Supreme Court sustained inferen- tially such a procedure, you will note that the case was reversed upon other grounds and sent back; that it was not paid over at all, hence the question as discussed by the Supreme Court was purely academic. The money never was paid over and no bond ever was given after the hearing of the case by the Supreme Court. I know of no other case in Illinois that holds as tlje Supreme Court seems to hold in the Hetfield case, and I much doubt the exist- ence of the rule as there stated. I think I would be willing to aid in the passage of a statute which would give such power, but as there is none, I doubt very much whether the Probate Court possesses it. "The method of disposing of many troublesome cases of that kind has grown up from the prac- tice in this court where the holder of the intermediate estate is also administrator or executor. In such cases we approve the final account, distribute all fhe distributable as- sets, find the personal estate in the hands of the first taker and excuse him from further duty-. This leaves him still an officer of this court, subject to its orders and bound to account, at such times thereafter as the court may direct, which would only be, of course, upon the complaint of some party in inter- est. At the death of the interme- diate holder of the personalty, the second taker has two remedies: first, of course, against the estate of the deceased first taker, and second, against the bondsmen of the first taker who was also admin- istrator or executor. We find in practice that this works well, and tends strongly to preserve the estate for its ultimate possession." «5 Gray 's Eule against Perpetui- ties, § 90 ; 2 Woerner on Adminis- tration, 2nd ed. § 454. 68 193 111. 372. 569 § 494] FUTURE INTERESTS [Ch. XIX that the event would happen upon which the gift over would take effect. 5. "Where real estate is devised to A for life with power to sell the fee and A exercises the power and converts the real estate into pergonal property, if the power is merely to convert and enjoy the proceeds for life, the life tenant must invest and use the income only and is under a fiduciarj' obligation to pre- serve the principal for the remainderman."^ Even if the life tenant has unlimited power to use up the proceeds of sale it is suggested that, to prevent the gift over being void for uncer- tainty, the life tenant should be held to be under a fiduciary obligation at least to account, so that what is left may at all times be ascertainable. Where the life tenant has a limited power to use the proceeds for a particular purpose — as for her support — it is submitted that the life tenant should be subject to the fiduciary obligation to account so that what part of the principal is so used and what part remains niay at all times be ascertainable.®* 87 Barton v. Barton, 283 111. 338. «8 But see Ellis v. Flannigan, 279 111. 93. 570 CHAPTER XX. VESTING OF LEGACIES. § 495. Sense in which "vest" is used when the question of the vesting of legacies is considered: "Vest" is not here used in the «ense in which the feudal land law employed the term — namely, as that quality of a remainder which consisted in its standing ready throughout its continuance to take effect in pos- session whenever and however the preceding estate determined.^ It is used in the more popular sense as describing that quality of an interest which consists either in its not being subject to any condition precedent in form to its taking effect in posses- sion, or in its taking effect in possession immediately as dis- ^ tinguished from the future. If the legatee dies before the period of distribution and the question arises whether the legatee's representatives are entitled, the sole question is whether the legacy was contingent on the legatee's surviving the period of distribution. In that case whether the legacy is vested or not is simply the question whether the legacy is subject to a con- dition precedent that the legatee must survive the period of dis-^; tribution or not. If thp point is whether the legacy payable at a future time violates the Rule against Perpetuities, it is not enough that the legacy is not subject to a condition precedent that the legatee survive the period of distribution. The legacy would still violate the rule if it were a certain executory inter- est — that is, an interest limited certainly to take effect- in pos- session at too remote a time, but not subject to any condition precedent of survivorship and hence transmissible in the mean- time upon the death of the legatee. To render such a legacy valid it must appear to be not only not contingent but actually effective in .possession at once (or within the time required by the Rule against Perpetuities) subject only to a postponement as to payment. Here, then, the distinction between a legacy which is vested and one which is not is a distinction between a legacy ^Ante, §29. 571 § 496] , FUTURE INTERESTS [Ch. XX which takes effect in possession at once (or within the limits re- quired by the Rule against Perpetuities) subject to a postpone- ment of the payment merely, and one which does not take effect at all till too remote a time whether it be contingent upon the legatee surviving that time or not. Thus, the problem of whether a legacy is vested or not conceals at least two problems which are slightly different. It is highly desirable, therefore, to deal with the actual problems involved without leaning too much on the term "test." § 496. A disiinction must be drawn between the case where the question is whether a legacy is contingent on the legatee surviving a. future period of distribution and where the same question arises in respect to legal remainders and springing in- terests in land: The considerations involved in determining whether a legal remainder is subject to a condition precedent that the remainderman survive the life tenant have been dealt with ante, § § 329-356. It has been assumed that when the re- mainders are equitable the" courts will reach the same conclu- sion as where they were legal, on the principle that equity fol- lows the law. So where the future interest jn land is a spring- ing executory interest which vests in interest and in possession at a future time, the question may arise whether the one who is to take must survive that time.^ In the present chapter the same problem with reference to legacies and trusts of personal property which are made payable at a future time is considered. Are they contingent upon the legatee's surviving the period of distribution ? Do they take effect in possession at once subject to a postponement as to payment, or are they actually not given until the future time? The reason for tbis separate treatment of a question of con- struction which is apparently the same, regardless of the sub- ject-matter of the gift, is this: The determination of whether a legal remainder was subject to a condition precedent of sur- vivorship was decided in England by the common law courts^ A remainder which was so contingent was destructible by a rule of law defeating intent. The common law courts, therefore, leaned very strongly against finding any such contingency. They would not imply it. They insisted that it must expressly ap- pear.3 So iwhere legal springing and shifting future interests 2 Ante, §482. s Ante, §§329 et seq. 572 CH. XX] VESTING OF LEGACIES [§ 497 in land were involved the common law courts passed upon the question of construction. It is believed that they required here, as well as in the case of remainders, that any contingency that the devisee survive the period when the interest vested in posses- sion must be definitely expressed.* When the courts of chan- cery dealt with equitable remainders in land they followed the rules of the courts of law and declined to find by any process of implication or construction a condition of survivorship unless it was explicitly expressed.^ The question whether a legacy pay- able at a future time was contingent upon the legatee's surviv- ing that time came up in the chancery court in suits for the administration of deceased's estates. In these cases the chancery adopted and followed its own rules, based to some extent, upon the civil law.* It happened, thei^efore, that the results reached rested upon some rules and considerations which were not recog- nized as effective by the common law courts in dealing with future interests in land. So where' equitable interests in per- sonal property 'were involved, the court of chancery followed its own rules applicable to the cases of legacies. The result has been, and still is, that the cases dealing with whether a legacy or an equitable interest in personalty payable at a future time is contingent upon the legatee surviving that time mUst be con- sidered apart from similar questions as to legal or equitable interests iil land by way of remainder. TITLE I. LEGACIES CHARGED ON LAND. § 497. A distinction must be observed between the cases where the question is vsrhether a legacy payable out of the per- sonal estate is contingent on the legatee surviving at a future period of distribution and where the same question arises in respect to a legacy charged on land and actually paid out of the proceeds of the land: Where a legacy payable in futuro was charged on land and actually paid out of the proceeds of *Ante, §§ 329 et seq. property are involved, see post, ^ As to the position -which our § 528. courts have taken where equitable « Leeming v.. Sherratt, 2 Hare, 14 interests not analogous to remain- (1842) ; McCartney v. Osburn, 118 ders in land or equitable interests in 111. 403, 420. a mixed fund of real and personal 573 § 497] FUTURE INTERESTS [CH. XX the land, the determination of whether the legacy was contingent on the legatee surviving the period of distribution was subject to the rules enforced by the common law courts. Even where the question was decided by the chancery court in the adminis- tration of estates that court purported to follow the decisions of the common law courts.'^ The latter seem to have deter- mined that a legacy not payable till a future time was regu- larly contingent upon the legatee surviving the date of pay- ment. Even when the legacy was "to A, to he paid at twenty- one," so that it would not, as a legacy payable out of personal property, be contingent on A's reaching twenty-one, it was held to be contingent on A's surviving twenty-one if and so far as the legacy -^as paid out of the proceeds of real estate upon which it was charged.* This result was recognized as a proper one by our Supreme Court in McCartney v. Osbiirn.^ Even when interest was given in the meantime upon a legacy charged on land the legacy, so far as it was actually paid out of the land, was held by the English common law courts to be con- tingent upon the legatee surviving the period of distribution.^" It was held, however, that where payment was "postponed until the happening of an event not referable to the person of the party to be benefited, but to the circumstances of the estate out of which the portion or legacy is to be paid, such as the death of a tenant for life," the legacy was not contingent upon the legatee surviving the date of payment.^i This was recognized and applied in Carper v. Growl ^^ and a legacy payable out of land after the death of the widow, who had a life estate in it, ' Per Lord Hardwieke, C, in ii Per Lord Cottenham, C, in Ev- ProwBe V. Abingdon, 1 Atk. 482, ans v. Scott, 1 H. L. C. 43, 57 486 (1738). See occord, Pearee D. (1847). See also 1 Jarman on Wills Loman, 8 Ves. 135 X1796) . (6th ed. Bigelow) star page 792. sTates v. Phettiplace, 2 Vern. Same passage quoted with approval 416; Chandos v. Talbot, 2 P. Wms. in Powers v. Egelhoff, 56 111. App. 6W. 606; Theobald on Wills, 2nd ed. 9 118 111. 403, 420. In Powers v. 407 (same statement) ; King v. ■ Egelhoff, 56 111. App. 666, the court Withers, 2 Eq. Cas. Ab. 656, pi. 10, seizes upon the rule to aid it in Cas. temp. Talb. 117; 5 Gray's Cases holding the legacy contingent upon on Prop., 1st ed. 266. the legatee's reaching twenty-flve. i3 149 111. 465, 482, 485. 10 Gawler v. Standerwick, 2 Cox , 15. But see Murkin v. Phillipson, 3 M. & K. 257. 574 Ch. XX] VESTING OP liEGACIES [§ 498 was not contingent on the legatee surviving the date of pay- ment. The different rules as to the contingency of legacies payable out of personalty and those charged upon, and actually paid out of, land, might result in the same legacy being non-con- tingent so far as it was payable out of personalty and contingent on the legatee surviving the period of distribution so far as it was payable out of the proceeds of land on which it was charged.i^ Where realty is devised upon trust to be converted and lega- cies paid out of the proceeds, or the proceeds divided, the lega- cies are not payable out of, or charged upon, realty. The directions to sell amount to an equitable conversion and the legacy becomes payable out of personalty.^* The rules applicable to the vesting of legacies payable out of personalty^® therefore apply." TITLE 11. LEGACIES ACTUALLY PAID OUT OP PERSONAL PBOPBETY. § 498. The results reached hj tlie courts axe for the most pairt merely sug-gestive as to what considerations will furnish a substantial inference for or against the vesting: of the legacy: It is improper to dogmatize about the results reached by courts in determining whether or not a legacy is contingent upon the legatee surviving the period of distribution. Each ease depends upon a balance of all the considerations for and against the presence of the contingency and most cases will present a some- what different alignment of these considerations. All the writer can do is to classify the elements of context which make for and against the contingency and indicate as far as possible the weight which the courts give to each. The process of balancing these considerations must be done by the practitioner in each 13 Chandos v. Talbot, 2 P. Wms. i5 Theobald on WUIs, 2nd ed. 407 ; 601. In re Hart's Trusts, 3 DeQ. & J., 14 Lash V. Lash, 209 111. 595, 604; 195. Ebey v. Adams, 135 111. 80, 85; le Scofleld v. Olcott, 120 111. 362; Dorsey v. Dodson, 104 111. App. 589, Hawkins v. Bohling, 168 111. 214. 592. § 499] FUTURE INTERESTS [CH. XX case as it arises. The writer has, however, at the end of this chapter undertaken to present a few leading cases and to ana- lyze them for the reader for the purpose of illustrating the process of balancing all the elements of a context for and against the contingency of the gift.^^ Topic 1. Where There is a Direct Gift With a Superadded Direction TO Pat at a Future Time. § 499. In these cases the context justifies the prima facie inference that the gift is immediate subject only to a post- ponement as to pajnnent and is not conting'ent upon the legatee surviving the period of distribution : If, for instance, a legacy be bequeathed "to A, to be paid at twenty-one," the gift is con: strued to take effect at once with merely a postponed enjoyment. The legacy is, therefore, said to vest immediately upon the tes- tator's death.i* This follows the well settled rule of the English cases. 1** Howe V. Hodge ^^ presents an example of such a context. In that case the testator devised the residue of his estate, consist- ing of reversions after life interests created by previous clauses of the will, real estate in fee not subject to any estate for life or years, and personal property, to his executoj-s in trust for the following purposes : Certain real estate ' ' shall be sold, and the proceeds arising from sudh sales, and all moneys coming into their hands -under this paragraph, shall be invested and kept secured on farm lands, the interest being yearly turned into principal, and the fund thus arising shall be divided among all my grandchildren, as they shall respectively arrive at the age of thirty (30) years. * * * My intention in disposing of the property named in this paragraph is to divide it equally among all my grandchildren." A decree in the lower court found this gift to the grandchildren void for remoteness. This 17 Po«t, §527., 19 Theobald on Wills, 2nd ed. isRuffin V. Parmer, 72 111. 615. 410. See also Sheets v. Wetsel, 39 111. 20 152 m. 252. See also 111. Land App. 600; Bowerman v. Sessel, 191 and Loan Co. 1;. Bonner, 75 111, 315. 111. 651; Eldred v. Meek, 183 111. But compare Pitzel v. Schneider, 26, 37, semhle; Ingraham v. Ingra- 216 111. 87, and Eeid v. Voorhees, ham, 169 111. 432, 453; McCartney 216 111.236. V. Osburn, 118 111. 403, 419-422. 576 Ch. XX] VESTINO OP LEGACIES [§ 500 our Supreme Court reversed upon the ground that the gift to the grandchildren was vested at once upon the testator's death, ,with only the right to possession postponed. This result was founded wholly upon the ground that, by the last sentence of the residuary clause of the will above quoted, there was a present gift to the grandchildren, and that the direction to divide among the grandchildren as they should respectively arrive at the age of thirty years, had reference only to the distribution or the taking effect of the interests in possession. Of course it made no difference that the direct gift to the grandchildren came after instead of before the clause postponing the possession of the interest.^ ^ So, in Armstrong v. Barber ^^ and Mettler v. Warner, ^^ where there was a direct gift to trustees with a direction tha|; the trust was to continue for a certain number of years from the> probate of the will, the gift to the trustees was clearly immediate and did not violate the Rule against Perpetuities. Suppose a legal or equitable life estate is created in A with a direct gift after the death of A to B and C, with a direction to the executor or the trustee to convert and divide or distribute after the death of A. Here the fact that the gift is only to take effect in possession after A's life estate does not make it con- tingent because the postponement >is inevitable considering the position of the estate. The case must, therefore, be treated as if there were, a direct gift to B, and C with a direction to divide at a future time, thus giving B and C a presently vested interest with a postponed enjoyment. Such has been the holding in this state,^* and elsewhere.^"* Topic 2. Where the Only Gift is to Be Pound in th:e Direction to Pat oe Divide at a Future Time. § 500. In such cases the context justifies the prima facie inference that the legaxjy is contingent upon the legatee sur- 21 Theobald on Wills, 2nd ed. 410; 538; Hempstead v. Dickson, 20 Dl. 1 Jarman on Wills (6th ed. Bige- 193; Kelly v. Gonee, 49 111. App. low), star page 796. 82. Banta v. Boyd, 118 111. 186, 22 239 111. 889, 397. post, § 505, seems contra. 23 243 111. 600, 608. 25 Collier v. Grimesey, 36 Oh. St. 24 Chapman v. Cheney, 191 111. 17. 574; Nicoll v. Scott, 99 111. 529, Kales rut. Int. — 37 577 § 500] FUTURE INTERESTS [Ch. XX viving the date of pajmient: This has been constantly recog- nized as the well settled rule.^" It has been applied where the time of distribution is sure to arrive and is unconnected with the legatee — such as the expiration of a given number of years.^'' It applies also where the legacy is contained only in the direc- tion to pay to the legatee kt a certain age. Thus, where the legacy is "to A at twenty-one," it is contingent upon A's reach- ing that age.28 It has been asserted that the_ general rule which makes a legacy contained only in the direction to pay at a future time con- tingent ' ' is usually applied where the gift is to a class, but the court will hesitate in applying it where the gift is to legatees by name. "29 It is difficult to deny this carefully phrased state- 28 Dee V. Dee, 212 111. 338, 352, 353; Clark v. Shawen, 190 111. 47, 56; Knight v. Pottgieser, 176 111. 368, 373-374; Ducker v. Burnham, 146 111. 9, 24; McCartney v. Osburn, 118 111. 403, 419; Hobbie v. Ogden, 178 111. 357, 366; Schukneclit v. Sehultz, 212 lU. 43; Armstrong v. Barber, 239 111. 389, 399; Dime Sav- ings Co. V. "Watson, 254 111. 419, 425; Meldahl v. Wallace, 270 111. 220, 231 (semble) ; O 'Hare v. Johnston, 273 111. 458, 467; Walker V. Walker, 283 111. 11. 27 Walker v. Walker, 283 111. 11; Eeid V. Voorhees, 216 III. 236 (dis- position of the principal "thirty years after my death ' ' — held contin- gent and void) ; Smell v. Dee, 2 Salk. 415 (legacy "to the two chil- dren of J. S. at the end of ten years after my' decease ' ') ; Bruce v. Charl- ton, 13 Sim. 65 (legacy "at the expiration of ten years from the time of my death '^ ; Be Eve, 93 L. T. E. 235 (legacy payable "six years after my decease"); Me Cartledge, 29 Beav. 583 (legacy of £1000 payable immediately after daughter 's death) ; Hall v. Terry, 1 Atk. 502 (legacy payable six months after a certain reversion came into possession) ; Kountz's Estate, 213 Pa. 390, 399 (gift ten years after the testator's youngest grandchild reached twenty-one to the testator's grandchildren held contin- ' gent) ;' Andrews v. Lincoln, 95 Me. 541 (gift thirty years after testa- tor's death to two named grand- children in esse at the testator's death, but if they died within the thirty year period then to their is- sue at the termination of said period — held gift to the issue of the grandchildren contingent and void) ; Anderson- v. Menefee, 174 S. W. 904 (Tex.) (disposition of residue thirty years from testator's death to children or heirs of the body of such as die before thai time). 28 Bennett v. Bennett, 217 111. 434 ; 66 111. App. 28; Eldred v. Meek, 183 111. 26; Pitzel v. Schneider, 216 111. 87; Howe v. Ho^ge, 152 111. 252, 275-277; Cassem v. Kennedy, 147 111. 660; Schofield v. Olcott, 120 III. 362, 372 ; McCartney v. Osburn, 118 111. 403, 421, 423; Powers v. Egel- hofe, 56 111. App. 606. 29 Armstrong v. Barber, 239 111. 389, 400. In Dime Savings Bank v. , Watson, 254 111. 419, 424, the court Ch. XX] VESTING OP LEGACIES [§ SOJ ment, and yet it may easily be misleading. The fact is, the general rule is constantly applied where the legacy is to one by name as well as where the gift is to a class. It is sub-, mitted that the circumstance that the gift is to a class does not give rise to any substantial inference in favor of the con- tingency of the gif t.^" Of course, where the only gift is con- tained in the direction to pay to A "when" or "if "he reaches twenty-one, or "to such children of A as reach twenty-one," the context fortifies the inference, which arises according to the rule, that the legacy is contingent upon the legatee surviving the age in question.*^ The context may even more clearly require the gift to be contingent.^,^ § 501. Cases where a difficulty arises in determining whether there is a direct gift with a superadded direction to pay at a future time, or a gift contained only in the direction to pay at a future time: In Furness v. Fox^^ a testator be- , queathed to his grandson ' "five hundred dollars, if he shall arrive to Ihe age of twenty-one years, then to be paid over to him by my executor hereinafter named." It was held that the words "if he shall arrive to the age of twenty-one years" re- lated to what followed and not to what went before, so that the gift was "to John William Furness; to be paid to him if he reached twenty-one:" Hence the gift was vested at once sub- ject only to a postponement. This case at least indicates that where there is doubt the court will adopt the construction which vests the legacy.^* In two cases, however, our Supreme Court seems to have over- emphasized the application of the it was practically conceded that, general rule where the gift was to a apart from the effect of other class. clauses (post, §519), the gift to 30 Fogt, § 523. the testator 's children, which read 31 In Howe v. Hodge, 152 111. 252, "when my children, or the surviv- 275-277, we have the very carefully ors, shall arrive at the age of thirty considered dictvm of the court that years, if my wife still survive, the the gift to trustees upon trust to sell remainder of said twO-thirds of my and divide the fund arising ' ' among property shall go to and vest in my all my grandchildren, as they shall said children equally," conferred a respectively arrive at the age of contingent future interest. thirty (30) years," gives to the 33 1 Gush. (Mass.) 134.' grandchildren only kn interest con- 34 See Jones v. Miller, 283 111. tingent upon their attaining thirty. 34Si, 356. 32 In Lunt V. Lunt, 108 111. 307, 579 § 502] FUTURE INTERESTS [CH.' JXX looked the fact that there was a direct gift to the legatee with merely a superadded direction as to payment. In Bennett v.- Bennett ^^ there was a bequest to trustees for the "benefit of my son, Charles W. Bennett, * * * as hereinafter provided." Then followed the provision that the income was to be paid him till he reached forty and the principal "shall then become his absolutely, ' ' with a gift over if he died before the period of dis- tribution. The only question was whether the trust could be terminated by the son at once and before he reached forty. The gift over ^^ as well as the refusal of the trustee to permit the termination of the trust ^^ prevented the result which the son sought. The opinion of the court, however, seems to be based upon the fact that because the only gift was in a direction to pay at a future time, it was contingent upon the legatee's surviving the period of distribution. It is submitted that so much of the opinion is misleading. In Kingman v. Harmon ^* the testator provided that all of his real estate "be reserved for my children, and be divided equally among them when the youngest attains the age of twenty-one years." The court here applied the rule relating to legacies that where the only gift was contained in the direction to pay at a future time the legacy was contingent on the legatee surviving that time. The court entirely overlooked the fact that there was in the words "be reserved for my chil- dren," a fair basis for a direct gift with a superadded direction to divide at a future time. Topic 3. Whether the Direction to Pat at the Future Time is Foe Eeasons Personal to the Legatee or Merely For the Con- venience OP THE Estate. § 502. This is important in determining whether or not the legacy is contingent: When the only gift is in the direction to pay or divide at a fu-ture time the fact that the payment ap- pears to be deferred for reasons which are personal to the lega- tee — for instance, till he reaches a certain age — is an added con- sideration in favor of the contingency of the gift. On the other 35 217 111. 434. 37 Post, §§ 732 et seq. 36 Post, § 526. ' 38 131 111. 171. 580 CH. XX] VESTING OF LEGACIES [§ 503 hand; our Supreme Court, following the statements of Jarman ^^ and Theobald *" has actually announced that ' ' even though there be no other gift than in the direction to pay or distribute in futuro, yet, if such payment or distribution appear to be post- poned for the convenience of the fund or property, as where the future gift is postpctned to let in some other interest,, for in- stance, if there is a prior gift for life, or a bequest to trustees to pay debts, and a direction to pay upon the decease of the legatee for life, or after payment of debts, the gift in remainder vests at once; and will not be deferred until the period in ques- tion." § 503. Cases where the only gift was contained in the direc- tion to convert and divide after a life estate and where the postponement was held to be merely for the convenience of the estate: In Ssofield v. Olcott,*^ there was a devise of real and, personal property to trustees to pay the rents and profits thereof to the wife for life, and, after her death, to convert sufficient to pay certain bequests. The testator then proceeded: "I order and direct my said trustees to convey, assign, and deliver all the rest and residue of my estate to my said «on, William, as soon as said legacies have been fully paid." William died before the life tenant. After the death of the life tenant, the trustee having a balance in his hands after paying the legacies, a contest arose between the heirs of the testator who were his brothers and sisters, and the devisees of the mother and only heir of William. A decree for the latter was affirmed. As to the proceeds of the conversion, the court took the position that the will bequeathed a legacy out of personal estate. The court also considered whether William's interest was vested upon the theory that "there was no original gift to him, but only a di- rection to pay, or to 'convey, assign and deliver' at a future time." Looking at the will this way they were satisfied that William's legacy vested at once upon the testator's death. The general rule was repeated "that when there is no original gift, but only a direction to pay at a future time, the vesting will be postponed till after that time." The court then went on to state from Jarman and Theobald the qualification of the ssJarman on Wills (6th ed. Bige- ^o Theobald on Wills, 2nd ed. 412. low), star page 798. *i 120 111. 362. 581 § 503] , FUTURE INTERESTS [CH. XX general rule given in § 502 and to apply it to the limitations in question. So, in Hawkins v. Bohting,*^ there was a devise upon trust for the husband for life, with a direction that what real estate remained unsold at the time of the husband's deatli be sold "and the proceeds of said sale to be divided, share and share alike,'-' between Bttie Bohling and Margaret Craig. Margaret Craig died before the death of the life tenant. After the death of the life tenant the heir of the testatrix filed a bill for partition. This was dismissed and the decree was aflS.rmed. Again the contention was made that "here there was no original gift to Mrs. Craig, but only a direction to sell and pay over to her after the death of the' life tenant. The court, however, relying upon Scofield v. Olcott, met this suggestion by saying, "It ap- pears by the will that the payment or distribution was post- poned for the convenience of the estate — ^that is, to let in the prior interest given to the husband — and was not postponed for reasons personal to the legatee, and that in such cases the interest will vest on the death of the testator." *^ In Ducker v. Burnham** the testator devised to his wife for life and on her death the estate then remaining to "be by my surviving executor equally divided between "my said five chil- dren. " The interest of the children was held to be vested be- cause the division was postponed only for the convenience of , the property. In Knight v. Pottgieser,^^ there was a devise to the testator's wife for life and upon her death "the same to go to and be divided amongst my children and their descendants in equal shares." Here, also, it was held that the children took vested interests, because, though the gift arose wholly out of the direc- tion to distribute in futuro, yet such distribution was deferred merely because of the presence of the life estate and not for any reasons personal to the legatee. In Dee v. Dee*'' after a gift to the testator's wife for life «2 168 111. 214. a 146 111. 9, 24. *3 This rule is repeated again in is 176 lU. 368, 373. Harvard College v. Balch, 171 111. «« 212 111. 338, 352-354. See, also, 275, 282, semble. See also Kelly v. Clark v. Shawen, 190 111. 47, 56; Gonce, 49 111. App. 82, 89-90; Dor- Grimmer v. Friederieh, 164 111. 245, sey V. Dodson, 104 111. App. 589. 248; Carper v. Crowl, 149 111. 465, 582 Ch. XX] vESTme op legacies [§ 504 of all real and personal property, the will provided: ' "After the decease of my said wife all my property, both real and personal, shall be divided between all of my children." It was held that the children took vested interests because the postponement- was merely for the convenience of the estate and not for reasons personal to the legatee.*^ ' In these cases the fact tl^at the gift is expressed to take effect ' ' on the death ' ' of the life tenant ought to be, and no doubt is, negligible as the basis of an inference in favor of contingency,*® but on occasion it is put forward as justifying such an in- ference.** § 504. Similar cases which hold, or appear to hold, the legacy contingent upon the legatee surviving the life tenant — People V. Jennings : 5** The will in that case contained a direc- tion to executors to seU ' ' as soon after my death as convenient. ' ' It then provided that ' ' should there be anything remaining after paying my just debts, funeral expenses, bequests and necessary expenses of the settlement of my estate, that the same may be equally divided between my following named children * * * [naming four] and in case of the death of either or all of my last named children, then to be divided among their children, the child, or children of each one taking their deceased parent's portion among them." One child died after the testator, but before any conversion, leaving a wife. Bulla, and several chil- dren. Upon the land being sold the share of the deceased child was paid by his administrator to his children to the exclusion 483; Dueker i;. Burnham, 146 111. ^t Acoord: Strickland v. Strick- 9, 24. land, 271 111. 614; ante, §§ 345, 346; See the following cases at large Sherman v. Flack, 283 111. 457; Mc- in accord trith those of the text Bayley v. Bishop, 9 Ves. Jr. 6 Smith V. Palmer, 7 Hare Ch. 224 Bromley v. Wright, 7 Hare Oh. 334 Parker v. Sowerby, 1 Drew 488 Leeming v. Sherratt, 2 Hare 14 Bumsey v. Durham, 5 Ind. ^71, 75 Allen V. Watts, 98 Ala. 384; Mc Clure's Appeal, 72 Pa. St. 414 Thomman's Estate, 161 Pa. St. 444 Weymouth v. Irwin, 5 Oh. N. P 248; Moore i;. Herancourt, 10 Oh C. C. 420. Comb V. Morford, 283 111. 584 (where the first taker took an abso- lute interest with a gift over at her death). 48 Ante, §330; People v. Byrd, 253 111. 223, 228. 49 Ante, § 330, note 62. 50 44 111. 488. See also, Bates v. Gillett, 132 111. 287, and Boyd v. Broadwell, 19 111. App. 178. 583 § 505] FUTURE INTERESTS [CH. XX of_his widow. Suit was brought by the widow upon the bond of the administrator. It was dismissed and this was aflBrmed. The decision i? clearly correct upon the ground that the testator specifically provided that, upon the death of one of his children, the share of that child shall go to the deceased child's children (excluding the widow). There was absolutely no reason why that clause should not be given effect. The court certainly placed its decision upon this ground, Mr. Chief Justice Breese saying : " * * * by the express terms of the will, in case of the death of any one of testator's children, his share was to go to such children as he might leave." The court, however, also said "we are satisfied no present interest passed to Israel Jennings, Jr. [the deceased son], as the land was not converted into money until after his death." It is submitted that this additional ground for the decision is erroneous. One could hardly put a case where the postpone^ ment of the legacy was more clearly for the mere convenience of the estate — convenience in turning realty into personalty, to pay debts and legacies. If the court intended to cite Marsh, V. Wheeler, ^'^ to sustain its position that the son here did not take a vested interest till the conversion, it was unfortunate, for that case is a most excellent authority for the contrary. It is in accord with the Illinois cases cited in § 503, only if any- thing, stronger in favor of holding the legacy vested, because the conversion was not to take place till a year after the testator's death.^^ § 505. Banta v. Boyd: ^^ Here we have People v._ Jennings over again with the same correct ground of decision present and the same misleading view taken upon the point of vesting. In this case there was a direct bequest in these words: "I devise and bequeath to each one named below, a part or por- tion of all the proceeds of all the real and personal estate of which I may die possessed (after paying all my debts, which may be few, or probably none), which portion or share is to be paid to each one named below, to-wit: * * * [then follow 512 Edw. Ch. (N. T.) 156. 53 118 lU. 186; see also Boyd v. 52 Whether the diotum that the Broadwell, 19 111. App. 178. interest is contingent can be sup- ported by the gift over, see post, §§ 519-521. 584 Ch. XX] VESTING OP LEGACIES [§506 the names of the legatees]." The testator then appoints execu- tors and gives them power to sell and divide the proceeds as designated "in a convenient and reasonable time." Then the will concludes: "In the event of the death of anyone named above, then the portion or share of the deceased to be paid to his or her offspring * * *." One of the legatees died thir- teen days after the testator and long, before any conversion was made. In holding that the deceased legatee 's children were entitled and not the deceased's administrator, the court took due notice of the clause expressly providing that they should "take in the events which happened. The opinion, however, is pregnant with the idea that the gift to the deceased legatee was contingent, whereas by every rule in aid of construction it was vested. This is clearer than in People v. Jennings,^* be- cause here the gift is not alone contained in the direction to divide, but there is a present direct bequest to the legatees. It would seem to be clear enough also that the postponement of the legacy Avas merely for the convenience of the estate. Unless, therefore, the construction sustained can be supported by in- ferences drawn from the gift over it must be open to criticism.^^ § 506. Ebey v. Adams: ^® In this case the whole estate real and personal was devised to the widow for life. Then the will provided: "Upon the death or re-marriage of my wife, Minerva, it is my will, and I do so direct, that all my estate, real and personal, shall be sold," and from the proceeds cer- tain legacies be paid, "and the balance of the proceeds of my estate my executors are hereby directed to distribute among my children or their heirs." One ©f the testator's children, Elmira Lewis, died before the life estate terminated, leaving her children as her heirs. She had, however, conveyed all her interest under the will to Ebey. A decree that the children took as against Ebey was affirmed. Nothing could be clearer than that this decision is correct. It is correct upon the supposition that Elmira took a vested interest, for, even if she did, the effect of the word "or" was to nxake a substitutionary gift, which would, and did in fact, 54 44 111. 488, ante, § 504. ^« 135 111. 80. 55 As to how far the argument based upon the gift over will take you, see post, §§519-521. 585 ■ . § 507] FUTURE INTERESTS {CH. XX operate to divest any previously vested interest in Blmira.^^ Any vested interest, therefore, which Ebey took by deed from Elmira was divested. Nor could the heirs of Elmira be estopped by her deed because they did not take under her but under the will of the testator. The court, however, placed its decision wholly upon the ground that "the vesting of the estate in interest, as well as in possession, in the children of the testator, depended upon their surviving the day of distribution — in other words, time is of the substance of the gift, and relates to the vesting of the legacies in interest as well as in possession." The first ground for this result was that the gift was contained only in a direction to divide at a future time — i. e., the time of con- version after the termination of the life estate. This is clearly contrary to the settled doctrine of the English cases, under which it would, it is submitted, without question, have been declared that the postponement in this case was merely for the convenience of the estate and the legacy vested upon the testator's deal;h. In the next place, the court construed (and very properly as, it would seem)^* the word "or" to mean "in case a child dies before the death of the life tenant, then over to that child's heirs." From this limitation over they under- took to say that the gift to the children must be contingent." It may be conceded that an argument against vesting arises from the presence of the gift over, but, unless the decision against vesting is required by it, the case must be regarded as open to criticism.^" § 507. Barnes v. Johnston: «i Here the testator after pro- viding for various legacies and making provision for the widow, directed his executor to convert all the estate not specifically 57 Ante, § 173. legatees tooik a contingent interest 58 Theobald on Wills, 2nd ed., and the reasoning of the court upon 493. which this was based was precisely 59 See also Bates v. Gillett, 132 ■ like that in the Illinois ease. See 111. 287, 294. also Kline v. Marsh, 12 Ohio C. C. The limitations involved ^n Eiohey 645. V. Johnson, 30 Oh. St. 288 (1876), eo As to how far the arguments were, as the court there construed based upon the gift over will oar- them, identical with those in Ebey ry, see post, §§ 519-521. V. Adams, supra. The actual deoi- ei 233 111. 620, 622. sion of the Ohio court was that the 586 Ch. XX] VESTING OP LEGACIES [§ 508 devised to pay legacies, and to "divide .the said remainder equally among my children [naming them]'," with a gift over - "if either of them shall be then deceased, leaving then a child or children of their bodies, such child or children shall take the deceased parent's share of such remainder." One of the children died before the period of distribution leaving a widow and children and the question arose whether the widow of the deceased child was entitled , as next of kin or devisee of her husband. It was held that she was not. This is correct because the gift over took effect. The court, however, instead of placing its decision on that ground, declared that the legacy was con- tingent upon the legatees surviving the period of distribution, as if such a contingency existed for all purposes. The gift over, while it furnished some argument for contingency, was not strong enough to overcome the inference in 'favor of vesting from the fact that the postponement was for the convenience of the estate. The language of the court should have been that the gift was vested subject to be divested, and that the event upon which the divesting was to occur had happened. The statement that the gift was contingent is sure to lead to unfor- tunate results in the case where the only gift over is if the legatee dies leaving children and then the legatee dies before the period, of distribution without leaving any children, but leaving a widow or devisee. In such a case the gift -over does not take effect. The divesting clause does not operate and the widow or devispe should be entitled. But if the gift is to be taken literally as contingent on the legatee surviving the period of distribution, the widow or devisee will not take. § 508. Strode v. McOormick: 02 i^ 1846 James M. Strode conveyed by deed to trustees certain real estate in trust for his wife for life, and "at her death" the trustees were directed to "sell and dispose of said lot and its appurtenances, and di- vide the proceeds equally among the children of said James M. Strode, the issue of his marriage with said Mary B. Strode, share and share alike * * *." There was no gift over here. In 1871, one son, Eugene, died leaving a wife and five children. In 1874 the land was mortgaged by the trustees and others equitably interested, not including the cliildren of Eugene. In 62 158 111. 142. 587 § 509] FUTURE INTERESTS [CH. XX 1879 a master's deed issued upon foreclosure proceedings. In 1878 the life estate expired and in 1891 the children of Eugene filed a bill to establish their equitable rights and for a partition or sale. The bill was dismissd with a finding that McCormick claiming under the master's deed was the owner in fee and that the plaintiffs had no rights. This was affirmed. The Supreme Court disregarded all reasons in favor of their decision based upon the power of the trustees of the original settlement to mortgage, or of the wife of Eugene (who joined in the mortgage) to bind her children under the will of Eugene, or upon the Statute of Limitations, and rested its whole opinion upon the point that the children under the settlement took an interest contingent upon surviving the period of distribution — i. e., the death of the life tenant. As Eugene died long before the life tenant he never took anything under the settlement. His children, therefore, took nothing from him by devise or descent. This construction of the settlement was based entirely upon the view that the only gift to the children was contained in the direction to divide equally among them after the death of the life tenant, and that this was to be read as if it were a limitation to such as might be the children of the settlor after the death of the life tenant. The court entirely disregarded the fact that the postponement was clearly for the convenience of, or owing to the position of the estate in the hands of the life tenant.®* § 509. Oases where it is doubtful whether the direction to pay at the future time is for the convenience of the estate or personal to the legatee: Suppose the direction is to divide among aU the testator's grandchildren ten years from his death. Here the testator may have designated the ten-year period as a convenient one in which to settle and realize most effectively his assets, or he may have done it because he thinks a distribu- tion at that time for the best interests of the legatees them- ere, whether Kidgeway v. a gift after the re-marriage or Underwood, 67 111. 419, is not open death of the widow, which was cen- to criticism upon the same ground tained only in the direction to dis- as Strode v. McCormick, supra, and tribute at that time was contingent the cases in §§ 504-506. See also upon the legatees named surviving Spengler v. Kuhn, 212 111. 186, 194. that period. In fact, however, there In Thompson v. Adams, 205 111. 552, was other language in the wiU which 559, the court appears to say that supported this construction. 588 Ch. XX] VESTING OP LEGACIES [§ 510 selves, allowing them to reach a certain period of maturity be- fore having the care and disposition of property. If the con- text is entirely indecisive and there is no resort to surround- ing circumstances, there is no argument either way and the -fact that the only gift is in the direction to pay at a future time may be decisive in favor of the contingency of the gift/'* In Armstrong v. Barber ^^ the surrounding circumstances in- dicated that the fixing o| the period of distribution at ten years from the probate of the will was for the convenience of the estate. The personal property was not sufScient to pay debts and. it was apparent that the real estate was not to be sacrificed to pay them, but was to be sold from time to time over a period of years. In 'Hare v. Johnston ^^ it is sub- mitted that the surrounding circumstances showed the post- ponement to be personal to the legatees, or at least not at all for the convenience of the estate. The trust estate started with no debts and with first class bonds. It was a special trust fund taken out of the entire estate for the special protection of the testator's children and their children. The trust was to last for thirty years from the testator's death and the dis- tribution was to occur at the end of that time. The extrinsic evidence showed that the period of distribution was postponed for the protection of the beneficiaries and hence the payment in future was personal to them. More recently in Walker v. Walker,^'' where the period of distribution was ten years from the testator's death, the court while not finding it necessary so to decide, seems to have been inclined to regard the post- ponement as personal to the legatee, or at least not for the con- venience of the estate. Topic 4. Effect on Vesting of the Payment of Interest ok Income. § 510. Ca^es where the pasrment of interest or income has no effect on vesting distinguished from those where it may have such an effect: Where the context, apart from the pay- ment of interest or income, is such that the legacy will be con- 64 Ante, § 500. os 273 111. 458, 470. 65 239 111. 389, 400. See also, 67 283 111.11,19-22. Mettler v. Warner, 243 111. 600, 610- 611. 589 § 511] FUTURE INTEEKSTS [Ch. XX sti'ued to be vested and not contingent upon the legatee sur- viving the period of distribution, the payment of income or interest, if it be an independent circumstance in favor of vest- ing, merely confirms a construction already clear. On the other hand, the legacy may be so uncompromisingly contingent that the payment of the interest or income cannot modify the ex- pressed intent. If the gift is "to A provided he survive the age of twenty-one," or any other period of distribution, it eould hardly be claimed that the payment of interest or income in the meantime would dispose of the express contingency of sur- vivorship. So if the gift were to a contingent class — as a gift "to the children of A who attain twenty-one," or "to such children as attain twenty-one,"^* the contingency is so emphatically expressed that the payment of income in the meantime will not dispose of the express contingency. But where the legacy is "to A ten years after the testator's death," "9 or to a class at such time,™ or "to A at the age of twenty-one, " or " upon his attaining twenty-one, " ^^ or to a class on a contingency-^— as "to the children of A at twenty- one, "^2 Qj. "qji attaining twenty-one," ^^ the context so far fails of explicitness in requiring the gift to be contingent or that the legatee survive the period of distribution, that a di- rection that interest or income shall be paid in the meantime may become a decisive circumstance in vesting the gift and thus prevent its being construed to be contingent on the legatee sur- viving the period of distribution. § 511. Principle upon which the payment of interest or in- come gives rise to an inference in favor of vesting^ the legacy: If the interest, dividends or income be the subject of a separate gift no argument for vesting arises. If the interest, dividend or 08 Theobald on Wills, 7th ed. 582 ; ti jn re Williams, L. E. [1907] 1 Dewar v. Brooke, ik Ch. Div. 529 Ch. 180. (1880) ; Wilson v. Knox, L. E. 13 . 72 Fox v. Fox, L. E. 19 Eq. 286 Ir. (Ch. Div.) 349; Howe ti. Hodge, (1875); Eccles v. Birkett, 4 DeG. & 152 111. 252, 276; McCartney v. Os- 8. 105. burn, 118 111. 403, 421. , liln re Turney, L. E. [1899] 2 OS Armstrong v. Barber, 239 111. Ch. 739. See also, Eldred v. Meek, 389. 183 111. 26, 37. 70 O 'Hare v. Johnston, 273 111. 458. But see Eeid v. Voorhees, 216 111. 236. 590 Ch. XX] VESTING OP LEGACIES [§512 income be given as necessarily following the gift of principal, there is an admission in the context that the gift of principal has been made and an inference in favor of vesting arises. In determining whether the interest or income is the subject of a separate gift or follows the original gift, it is important to observe whether the interest or income given is upon or out of the precise subject of the legacy and whether the whole interest or income till the period of distribution is given. If it is not the inference in favor of vesting will not arise. It will be found, convenient, though not necessarily logical, in determining whether the interest or income is, or is not, the subject of a separate gift, to consider separately the cases where the gift is to named individuals and those where it is to a class. § 512. Where the legacy is to a named individual at a future time with interest or income in the meantime : When the only gift to a named individual is contained in a direction to pay at a future time — as "to A at twenty-one," the direction that the legacy bear interest at the legal rate in the meantime is effective to prevent the legacy being contingent on the legatee surviving that age.''* The legacy is vested at once. The same is true where income from an investment of the amount of the legacy, or interest in the sense of such income, is given in the meantime ; ''^ or where it is given only for the maintenance of the legatee and payable absolutely,^® or in such part as the trustees deem wise, the unpaid portion being accumulated and held fdr the ultimate benefit of the legatee.'^'' The diflBcult case is where the income, or so imuch thereof as the trustees see fit, is to be paid to a named beneficiary and nothing is said as tp what shall be done with the balance.'^* The fair inference is that it is to be accumulated and paid over with the principal, so that the legatee receives it. An inference, therfore, arises in favor of vesting. In Bennett v. Bennett '^^ the attempt by the legatee to end ' This seems to have been the 80 Mr. Lessing Rosenthal's article assumption of the court. in 28 Chicago Legal News, p. 257. ^i Ante, § 402. If the same attempt had been made ^2 Ante, §§ 310 et seq. to explain Burton v. Gagnon, 180 "s Ante, §§410, 411. 637 §551] FUTURE INTERESTS [GH. XXI TITLE IV. MEANING OF "ISSUE" IN GIFTS OVEE IF THE FIRST TAKER "DIES WITHOUT ISSUE." §551. When construed as meaning "children": If there be no independent gift to the children or issue of the first taker and no special context, it would seem that the word "issue" should have its primary meaning of descendants and the ques- tion will arise whether a definite or indefinite failure is meant."* But if there is an independent gift to the "children" of the first taker then in a gift over if the first taker "die without issue, " " issue ' ' has been held to mean ' 'children. ' ' *' The, effect of this is to prevent ' ' die without issue ' ' from meaning an indefinite failure of issue. It would perhaps be a more conven- tional interpretation to hold that "without issue" meant "with- out such issue. " *® TfTLE V. MEANING OF "HEIRS" IN A GIFT OVER IF THE FIRST TAKER "DIES WITHOUT HEIRS."" § 552. When construed as meaning "heirs of the body" or "children" of the lirst taker: Where the gift over if the »*Ante, §§542 et seq. In a number of cases we find a gift over expressed to be upon the first taker 's dying ' ' without heirs of his / bo3y " 1 (Summers v. Smith, 127 111. 645) or "leaving no issue" (Smith V. Kimbell, 153 111. 368), or "without issue -of his body" (Strain V. Sweeny, 163 111. 603). In all of these cases it was held that the gift over was on a definite fail- ure of issue, ante, § 545. Appar- ently some ground was found for this construction from the, fact that "heirs" or "issue" might mean "children." It is clear, however, from Strain v. Sweeny, that it was not held that "heirs" or "issue" in these cases were the absolute equivalent for "children," for they included any issue of the first taker that might be living at the time of his death. ssBIakeley v. Mansfield, 274 lU. 133; O'Hare'^. Johnston, 273,111. 458; Wilson v. Wilson, 261 111. 174; Stisser v. Stisser, 235 111. 207. 96 Where thd limitations are to X for life and then to his issue, or his issue surviving him, with a gift over if A dies without issue, "die without issue" may be construed to mean ' ' die without such issue, ' ' which will cause it to mean Vdie without ever having had issue," or "without issue surviving," as the case may be. Theobald on Wills, 7th ed. 711-712. See also Kellett v. Shepard, 139 III. 433; Healy v. Eastlake, 152 111. 424; Seymour v. Bowles, 172 111. 521; Johnson v. Askey, 190 111. 58. 97 For the cases generally where ' ' heirs ' ' is construed to mean ' ' chil- dren, ' ' see post, § 574, note. 638 Ch. XXI] GIFTS OVER UPON DEATH WITHOUT ISSUE [§552 first taker dies "leaving no heirs" is to the persons, or some of them, who would be the first taker's collateral heirs if he died without heirs of his body, a prima facie inference arises that "without heirs" means "vt'ithout heirs of the body."'** Our Supreme Court has not, however, been content merely to con- strue the word "heirs" in such a case as "heirs of the body," but has insisted that "heirs" meant "children," so that an adopted child who was within the meaning of heir "of the body" but not within the meaning of "children" was not included.'" This is likely to make trouble where the first taker dies leaving no child or children but a grandchild or more remote ' issue. Then it will probably be held that when "heirs" is construed to mean "children" in the case now under consideration it also includes grandchildren. 98Bradsby v. Wallace, 202 111. 239. In Ahlfield v. Curtis, 229 111. 139, the gift over was if the first taker died, "leaving no heirs of her own," and here "heirs" meant ' ' heirs of the body " or " children. ' ' See also Kalies v. fiwert, 248 HI. 612; Wilson v. Wilson, 261 111. 174; Theobald on Wills, ,6th ed. 395; Lee V. Lee, 46 Ky. '€05 ; Bryan '"• Spires, 3 Brewster (Pa.) 580. 99 In Wallace v. Noland, 246 111. 535, it was held that it had been decided in Bradsby v. Wallace that "heirs" meant "children." See also the language of the court in Ahlfield V. Curtis, 229 lU. 139, 142, to the effect that "heirs" meant ' ' children. ' ' NOTE — (1) On meaming of "un- married" m gifts over upon the first talcer ^ying wnmarried: Frail V. Carstairs, 187 111. 310; Theobald on Wills, 2nd ed. 527-528. (2) When a gift over will be im- plied to he on condition that A dies "without suoli (heirs:" Young v. Harkleroad, 166 111. 318. 639 CHAPTER XXII. LIMITATIONS TO CLASSES. TITLE I. A GIFT TO A CLASS DISTINGUISHED FROM A GIFT TO INDIVIDUALS. §553. Importance of this question: If the gift is to a class and one dies before the testator there is no lapse, but the members of the class who are in esse at the testator 's death take the entire fund.^ If the gift had been to individuals there would have been the lapse of a share. In applying Section 25 of the Illinois Inheritance Tax Act it may make a difference in the amount of the tax whether the gift is to a class or to indi- viduals.2 So where the rule is that a gift to a class payable at a future time is contingent on each member of the class surviving the period of distribution, when a gift to individ- uals in the same terms would not be so continjgent,^ the question will become important whether the gift is to a class or to in- dividuals. § 554. Cases where the cliEiss may increase pr diminish even after the testator's death: If a devise is made to persons who are described collectively as "children," "heirs," or "issue," and at the time the will is made the number may diminish or increase up to the time of and after the testator's death, we have the most obvious case of a gift to a claSs. Thus, where there is a devise to A for life, then to A's children, A's children 5 McCartney v. Osburn, ] 18 111. 403, leaving children, and no provision 41 8 ; Lancaster i;. Lancaster, 187 111. is made for that contingency, the 540, 546; Rudolph v. Eudloph, 207 children of the child or grandchild 111. 266, 271. Observe, however, that so dying will take the share their under sec. 11 of our Act on Descent parent would have taken had he (E. S: 1874, ch. 39, sec. 11), if outlived the testator: Rudolph v. the class consists of children or Rudolph, sup^-a. grandchildren of the testator and 2 People v. Byrd, 253 -111. 223. one dies in the life of the testator ^ Ante, §524; post, §563. 640 Ch. XXII] UMITATIONS TO CLASSES [§ 556 may increase or diminish during the life of the testator and after the death of the testator and before distribution at A's death. So if the devise is to "my nephews and nieces" (their parents being then alive), the number may increase or diminish before the testator's death and afterwards. Even where the gift is to individuals, naming them and also describing them collectively as "A, B and C, children of my sister" (the sister being then alive), or "A, B and C, my nephews and nieces," the designation of the individuals has been held to be over- come by the collective description and the gift has been held to be to a class, so that on the death of one befpre the testator there was no lapse, but those in esse at the testator 's death took the whole,-^ § 555. Gases where the class may increase or diminish up to the testator's death but cannot increase afterwards, or may neither increase nor diminish afterwards: It is not necessary in order to have a gift to a class that the personnel of the class should be able to increase after the testator's death. Thus if the testator devises to his widow for life and then to his chil- dren, the gift to the children is to a class though the number of children, while it may diminish, cannot increase after the tes- tator's death.5 Even when the gift after the widow's death was to "my children A, B and C," our Supreme Court held that the collective designation prevailed over the naming of the in- dividuals, so that the gift was to a class.^ If the devise were to the testator's children at his death, so that the class can- not increase or diminish after the testator's death and before distribution, yet so long as the designation is collective the gift is to a class and not to individuals. §556.' Suppose the gift is to the "children" of a person deceased at the time the will is executed : Here the personnel of the class cannot increase. It may, however, diminish dur- ing the life of the testator and the designation of those who are to take is exclusively collective. It is held that the gift is to a class.'' This would seem to indicate that the presence of a eol- * Chase v. Peekham, 17 E. I. 385 ; v. Adams, 135 111. 80, the court ' Eoosevelt v. Porter, 36 Misc. Kep. speaks of a gift to the testator's 441 ; 73 N. Y. Supp. 800. children (naming six) or their heirs, 5 People V. Byrd, 233 111. 223. as if the gift were to a class. » People V. Byrd, supra. In Ebey ^ Viner v. Francis, 2 Cox 190 Kales Put, Int. — 41 g^^ § 556J FUTURE INTERESTS [CH. XXII lective designation of the devisees is the more important ele- ment in determining whether or not the gift is to a class. Cer- tainly the fact that the personnel of the class cannot increase does not prevent the gift being to a class. A more difficult question arises where the personnel of the class cannot increase after the will is executed and where the objects of the gift are described both collectively and indi- vidually, as where the devise is to "A, B and C, the chil- dren of my deceased sister." One might guess that the indi- vidual designation would override the use of the collective word "children" and that the gift would be to those named, and the collective word "children" would be merely descriptive or for complete identification. Yet when the question arises as to whether there is a lapsed legacy or not courts have repeatedly found the gift to be to a class even in such a ease as that put.* In the face of these results the recent case of Blackstone v. Althouse ^ requires special notice. There a testatrix whose par- ,ents were deceased devised to her "brothers and sisters as fol- lows [naming them]." In another clause she devised a fee to > A with a gift over if he died without issue (which happened) to "my brothers and sisters and John Smith Blackstone and Ellen Hartman." As John and EUfen were not within the class of brothers and sisters there is authority that as to them the gift would not be to a class and that on the death of one of them before the testatrix there would be a lapse. ^^ The principal question was whether the executory devise to the brothers and sisters was contingent upon their surviving the period of dis- (1789) ; Dimond v. Bostock, L. E. was to a class so that J. E. L. took 10 Oh. App. 358. In Lancaster v. the whole. Lancaster, 187 111. 540, the testa- « Springer v. Congleton, 30 Ga. tor devised "to the legal and direct 9^6; Warner's Appeal, 39 Conn. , , , . V , . i ii, • V, J 253: Swallow v. Swallow, 166 Mass. descendants — the heirs of their bod- „ ^' „ , „ „.,. J ,, .„ , , . • . „ 241; Schaffer v. Kittell, 14 Allen les begotten and their heirs-of my ^^^^^^ g^g. H„pp„,k ^_ T„,ker, eldest brother W. P. L. and his gg jj_ ^ g^g. p^^^ ^_ q^^^^^^^ 33 wife M. L. (now both, deceased)." jj^^ (jj_ y.) 301; Bolles v. Smith, J. E. L. and J. L. G., both heirs 39 Conn. 217. of the bodies of the given ancestors, ' 9 278 111. 481. were alive at the making of the 10 in re Jackson, L. B. 25 Ch. ' will, but J. L. G. died before the Div. 162 ; Theobald on Wills, 7th testator. It was held that the gift ed. 788. 642 Ch. XXII] LIMITATIONS TO CLASSES [§ 557 tribution, namely, when A died without issue. It was urged upon' the court (quite improperly, it is submitted) " that if the gift w^re to a class it must, for that reason alone, be Re- garded as contingfent on the members of the class surviving the perio^ of distribution. To meet this the court held that the gift to brothers and sisters was not to a class but to ascertained individuals. The court seems to have been influenced by the fact that the parents of the brothers and sisters were long since dead so' that there could be no more brothers and sisters and that the brothers and sisters were particularly named in another clause. If such considerations are to prevail over the collec- tive designation it shakes the holding that the gift is to a class where the gift is "to the children of my deceased sister," ^^ and especially where it is to the children (naming them) of a person then deceased.^^ The result reached by the court should rest upon the ground that the executory devise was not expressly made contingent on the members "of the class surviving the period of distribution an^ the fact that the gift was to a class did not furnish a sufBcient inference of any such contingency of sur- vivorship. § 557. Volunteers of America v. Peirce : " Here there was a gift to the Illinois Humane Society of Chicago, the Old Peo- ple's Home of Chicago, the Home of the Friendless in Chicago, Buchanan Anti-Saloon League of Buchanan, Michigan, the Young Men's Christian Association of Buchanan, Michigan, if it is in existeiice, and if not to the Young Men's Christian As- sociation of the City of Chicago. It is difficult to see how this could be construed to be a gift to a class of charities. If one made a gift to all the charities in a given town, or all the chari- ties for educational purposes in a given district, the gift might be regarded as a gift to a qlass of charities, but when specific charities are named having no obviously common characteristic exdfept that they are charities, and where no common character- istic is attempted to be designated it is impossible to say that the gift is to a class of charities. The contention that the gift was to a class of charities and, therefore, when the gift to one failed the remaining charities took the entire fund, was prop- erly denied by the court. ^^Ante, §523; post, §563. , ^i Supra, note 8. " Supra, note 7. i* 267 lU. 406. 643 § 558] FUTURE INTERESTS [CHw XXII TITLE 11. VALIDITY OF GIFTS TO A CLASS. § 558. Where no interest is Umited preceding the gift to the class and subsequently born members of the class are in- tended to take : H no members of the class are in esse at the time of the gift'the attempt made is to create a springing future interest. This is valid by devise ^^ or by way of equitable in- terest, i* It is valid by way of use ^^ and even by bargain and sale where the consideration is paid by another. ^^ If one member of the class is in esse at the time of the gift the title vests in possession in him, and, so far as the subse- quently born members of the class are concerned, the attempt is to create a shifting future interest. This is valid by devise ^* or by way of equitable interest. ^^ It is valid also by way of use, and a bargain and sale may be used to create such an in- terest. ^^ In this state it has been erroneously held that where the conveyance is by deed the after-born children cannot take.^^ § 559. Where the gift to the class is a remainder — (1) which vests in interest upon the biith of a member of the class, and where it is expressly provided that after-born members of the class are to take : Before the birth of any member of the class the remainder is contingent and follows the rules relating to such remainders. By the birth of a member of the class before the ■ termination of the life estate the remainder vests in a member of the class.2* Thereafter the question is whether the vested remainder will open to let in other members of the class who are intended to take. That is the same question as whether shifting interests are valid. Where the interests are created by will the after-born children may take. The same result should be reached where the interests are created by way of use. If the interests are equitable or in personal property it is assumed that the intent expressed may be carried out. * § 560. (2) Where the remainder to the class is subject to a condition precedent in form which may not happen until IB Ante, §474. 20 Ante, §§472, 478. wAnte, §§472, 478. 21 Ante, §476. 1' Ante, § 475. 22 Id. 18 Id. • 23 Ante, § 477. ^9 Ante, §474. 644 Ch; XXII] LIMITATIONS TO CLASSES [§ 561 after the termination of the life estate: Suppose, for instance, the remainder is limited to such children of the life tenant as reach twenty-one. If none have reached twenty-one when the interests are created the remainder is contingent and subject to the usual rules relating to contingent remainders. The mo- ■ ment, however, one child reaches twenty-one before the termi- nation of the life estate the remainder vests. It wiU open and let in other children who reach twenty-one before the life estate terminates.^* Suppose, now, that some children are in esse when the first child reaches twenty-one and the life estate terminates before they reach twenty-one, can they share upon reaching twenty- one? The answer must be in the affirmative if the interests are equitable or in personal property because in such interests there is no rule of destructibility. If, however, the remainder is a legal interest in land created by will or by way of use inter vivos and the rule of destructibility of contingent remainders - is in force, the English authorities have assumed that the chil- dren who reach twenty-one after the tennination of the life estate cannot take ^^ except in the one case where the remainder is limited to such children as "either before or after" the death of the life tenant reach twenty-one.^® There is anthority in this country, which is believed to be sound, that the children who reach twenty-one after the termination of the life estate will take even when the remainder is limited merely to the children who reach twenty-one, without -saying "either before or after" the life tenant's death. ^^ TITLE III. RULE IN "WILD 'S CASE.zs § 561. Where a devise is made to "A and his children" and at the time of the devise and of the testator's death A has children: In Wild's Case it is said that A and his children take as joint tenants for life by the common law.^^ Today in this state they would, of course, take as tenants in common in 2*4jite, §308. 28 6 Co. 17 (1599). 25 Ante, § 101. 29 Falopn v. Simshauser, 130 111. 26 Ante, § 102. 649 ; Boehm v. Baldwin, 221 111. 2' Ante, § 103. 59, 63. 645 § 562] FUTURE INTERESTS [CH. XXII fee.^o This is what might be expected upon the usual con- struction of the language used. It can hardly be said to be an application of any special rule. It is not the result of what has been called the Rule in Wild's Case. § 562. Where a devise is made to "A and his children" and A has at the time of the devise no children: By the Rule in "Wild's Case^i A takes an estate tail.*^ This rule has been regarded by our Supreme Court as connected with the fact that, if there were no Rule in Wild's Case, A at common law would have taken merely a life estate and A's children, if he had any, would be disappointed. .Hence the rule operated to enlarge a life estate into a fee tail which, if the entail were not barred, would operate to pass the property by descent to the heirs of A's body upon his death. If the entail were barred A woul'd take the fee. Under Section 13 of our Conveyancing Act A would take not a life estate but a fee, and hence his children might take by descent from him or he might alien in fee. If the Rule in Wild's Case operated in this state today it would cut down A's fee to a fee tail which the statute would cut down still further to a life estate, and this would give a result quite out of harmony with Section 13 of the Conveyancing Act, which seeks to vest the fee in a grantee unless a less estate is expressly, or by operation of law, limited, and quite out of harmony with the operation of the Rule in Wild's Case which sought to enlarge a life estate into a fee tail. Our Siiprertie Court has therefore, very properly settled it that the Rule in Wild's Case is not in force in this state. ^^ TITLE IV. ' DETERMINATION OF CLASSES. § 563. Distinction between the rules for the determination of classes and those which determine whether the gift to the class is contingent upon the members of the class surviving the period of distribution: In determining what members of the class are entitled to shai-e two questions arise : first, what is the so Ante, §§210-211. sa Hawkins on Wills, Snd ed. by 31 6 Co. 17 (1599) ; Beacroft, v. Sanger, 243. StrawB, 67 111. 28, 33; Baker v. ss Davis v. Ripley, 194 111. 399; Scott, 62 111. 86. Boehm v. Baldwin, 221 111. 59; 646 Ch. XXII] LIMITATIONS TO CLASSES [§ 563 maximum number of the class which may be admitted to share ; and second, which of those included in this maximum number will be permitted to share. The second of these questions is entirely one of determining whether the gift to the class is contingent upon the members surviving a particular time, us- ually the period of distribution. Here, whether the gift is vested or contingent, or vested indefeasibly, or defeasible upon death before the period of distribution, is all important. The first question is strictly one of the determination of the class and is subject to certain rules known as rules for the determi- nation of classes. These rules are concerned merely with the total number of those who may possibly be admitted -to share — that is to say, with the length of time during which the class may be increased. They have nothing whatever to do with whether the interest is vested or contingent. Thus, if there is a gift to the children of A to be p .aid-at- twentv-one the gift is vested. If it be to the children of A who reach twenty-one it is contingent. Yet in each case the class is determined, not with reference to when the interest vests, but to the time when the first distribution is made.^* "Whether the interest is vested or not, while it may be a factor in determining the period of distribution, for the most part only affects the amount which the members of the class will take. If it be vested,^^ then upon the death of any member of the class taking a vested interest, such interest will pass to his - representatives. That is, the maximum amount which each member of the class can possibly take is fixed ; but this may be cut down if other' members are added to the class. On the other hand, if the interest is con- tingent,!*^ then, if one dies before the contingency happens, the Connor v. Gardner, 230 111. 258, 111. 574; Flanner v. bellows, 206 272; Seed v. Welborn, 253 111. 338; 111. 136. ' Way V. Geiss, 280 111. 152. ^ s" In the following cases the gift ^* Post, §§564 et seq. to the class was .contingent on its 35 In the following cases the gift members surviving the period of to the class was vested at the tes- distribution: Ridgeway ■"■ Under- tator's death, yet the class, accord- w6od, 67 111. 419; Blatohford v. ing to the general rule, -was allowed Newberry, 99 111. 11; Bates v. Gil- to increase until the period of dis- lett, 132 111. 287; Ebey i^-. Adams, tribution: Cheney v. Teese, 108 111. 135 111. 80; Pitzel v. Schneider, 472, 473; Howe v. Hodge, 152 111. 216 111. 87. 252, 277; Chapman v. Cheney, 191 In Schuknecht v. Schultz, 212 647 § 563] FUTURE INTERESTS [CH. XXII other members of the class surviving' the contingency take all. In this case the maximum amount of the share of each is not determined until the contingency happens and all the interests vest. The distinction between the determination of what maximum nuTHber of the class may be admitted to share, and whether the members of the class, who may' be so admitted, must survive the period of distribution in order to take, was recognized by our Supreme Court in McCartney v. Osburn.^'' The court said: "where the gift or devise is to a class, none will be per- mitted to take except such as are in esse at the time of distribu- tion. ' ' This was intended as an announcement of the rule which allowed the class to increase only until the period of distribution, whether the gift were vested or contingent. If, hdwever, the statement of the court had stopped at this point it would have been inaccurate because it would have required all who took to survive the period of distribution. The court evidently per- ceived this and therefore added that this general statement was subject to the qualification "that where the gift or devise is to a class, as tenants in common, with no provision for survivor- ship, and one or more of the class die after the gift or devise has taken effect in interest, and before the time of distribution, the shares or portions of those so dying will go to their devisees, or, in case of intestacy, to their heirs or next of kin, as the case may be. " Thus the court clearly recognized the difference between the rule for the determination of the maximum number of the class who might share and the question whether the mem- bers of that class must survive the period of distribution in order to take. Recently, however, the court has announced without qualifi- cation, as a rule for the determination of the- class, that** "the rule is that where the gift is not in terms immediate and so confined and a gift to a class is postponed pending the termi- nation of a life' estate, those members of the class, and those lU. 43, the future interest was ^^ 118 lU. 403, 418, ante, § 523. either certain or non-contingent 38 Drury v. Drury, 271 III; 336, executory or else o'ontingent execu- 341. tory, yet that did not affect the rules for the determination of classes. 648 Ch'. XXII] LIMITATIONS TO CLASSES [§ 564 only, take who are in existence at the death of the life tenant. ' ' ^^ Along with this statement the court has shown a tendency to hold that a gift to a class merely as such, made the gift con- tingent on the members of the class surviving the period of dis- tribution.*" This, it is submitted, confuses the question of the determination of the class with the question whether the gift was contingent on the members of the class surviving the period of distribution. A rule is stated for the determination of the class which would make every gift to a class contingent on the members of the class surviving the period of distribution. This, it is believed, is erroneous. The rule for the determination of the class is that those born up to the period of distri,bution are entitled to be considered as members of the Class. But whether all of those born before the period of distribution are entitled to share, or only such as survive the period of distribution, is settled by considering whether the gift is \o members of a class who survive, so that it is contingent, or whether it is non-con- tingent and vested, so that upon the death of any member of the class before the period of distribution his interest wiU pass to his representative. That is a question of construction which should be considered entirely apart from any rule for the de- termination of the possible maximum number of the class. It is very questionable whether the fact that the gift is to a class is even a circumstance in favor of the gift being held to be con- tingent upon the members of the class surviving the period^of ■ distribution. *i In the following sections the rules relating strictly to the determination of classes are dealt with. No attempt at this point is made to consider whether thef gift to the class is con- tingent on the members surviving the period of distribution or, not. That difficulty of construction has already been considered elsewhere.*^ § 564. Rule when the period of distribution is the death of the testator: Suppose there is a gift to all the children of A, and they are to take at the testator's death. It is the settled rule that if A have children at the death of the testator, they 38 Similar expressions are to be '>'<> Ante, §§353, 524. found in Brewiok v. Anderson, 267 *i Id. _ 111. 169, and Blackstone v. Althouse, *2 Id. 278 111. 481, 487. 649 § 565] FUTURE INTERESTS [CH. XXII take and subsequently born children are not let in.^^ Of course the testator may, by apt words, include in the class designated, not only those born at his death, but all who may at any time thereafter be born to A. This effect was given to the language of the will in Handherry v. Doolittle,** on the ground that, while in one part of the will the devise to the children of a deceased brother was by name, tl^e gift to the children of a living brother was "to the children of R." If, however, the devise is to "A and his children" and none are m esse at the testator's death, A alone is entitled.*^ § 565. Rule when the period of distribution is the termina- tion of a life estate: ** If no members of the class are in existence at the time the testator dies or the settlement is made, then the class may increase at least till the death of the life tenant, but not beyonji that time.*^ This is brought out by the cases where there is involved the limitation of an estate tail to A, who is at the time without issue. By the Statute on En- tails *® A at once takes a life estate with a contingent remainder to a class. Under the decisions of our Supreme Court it is now settled that this remainder is the equivalent of a gift to "chil- dren. ' ' *8 It seems always to have been assumed that all the children born to A at any time will take.^° If there be one or more members of the class in existence at the time the testator dies or the settlement inter vivos is executed, it seems clear *s Lancaster v. Lancaster, 187 tion was whethe'r, by the proper 111. 540; Ingraham v. Ingraham, construction of the will, the period 169 111. 432, 467 et seg., semble; for the distribution of the residue Handberry v. Doolittle, 38 111. 202, came at the death of both the tes- 206, semble; Schuknecht v. Schultz, tator's daughters without leaving is- 212.111. 43, 46, 47, semble; Low v. sue, or upon that event and the death GrafE, 80 111. 360, 370 ; McCartney of the widow, who took no life' estate i;. Osburn, 118 111. 403, 418. So in the residue under the will. where the conveyance is by deed *'f Eeed v. Welborn, 253 111. 338 ; to A and her children, and one child Way v. Geiss, 280 111. 152. is then in esse, A and that child <' Ante, § 402. alone will share : Dick v. Eicker, <9 Ante, § 406. 222 111. 413. sovoris v. Sloan, 68 111. 588'; 44 38 111. 202. Kyner v. Boll, 182 111. 171; Turner « Davis V. Ripley, 194 111. 399. ■;;. Hause, 199 111. 464; Richard- 40 Observe that in Blatchford v. son v. VanGundy, 271 III. 476; Newberry, 99 III. 11, the great ques- Moore v. Reddel, 259 111.' 36. 650 ,PH. XXII] LIMITATIONS TO CLASSES ■ [§ 566 that the cl^ss may increase' until the death of the life tenant, but not beyond that tinle.si , Lancaster v. Lancaster,^^ is somewhat peculiar. There the de- ,vise was to A for life "arid to. the heirs of her body begotten after her death. ' ' At the time of the testator 's death A had one child. The. court seems to have said that this one child should take to the exclusion of any others which might after- wards be born because the class was determined at the testator's death. It is not clear that this was necessary- to the decision. It must be regarded as an oversight. In any view that is taken of the limitations, the period for the determination of the class must, according to the general rule, have been the death of the life tenant. It is most clearly so if they are left as they are. It is equally so if the rule in Shelley 's case, be first applied and then the Statute on Entails,^^ and if the further assumption be made that under that statute the remainder is substantially to children.^* In Lehndorf v. Cope,^^ for instance, where an estate tail was in terms limited, we have the dictum of the court that the remainder created by the statute went to the children of the life tenant (the donee in tail) "in esse at the time of making the deed [crea,ting the estate tail], subject possibly, however, to be opened to let in after-born children of the same class." § 566. Suppose the property to be distributed to the class is subject in part to a life estate and the gift to the class is in terms immediate: If there is nothing in the will from which it could be specially inferred that children born up to the time 51 Handberry v. Doolittle, 38 111. little, supra, the court found tHis 202; Mather v. Mather, 103 111. additional reason from the context 607; Cheney v.. Teese, 108 111. 473, of the will for declaring that 482; McCartney v. Osburn, 118 111. children born after the testator's 403, 418 ; Bates v. Gillett, 132* 111. death were included. In providing 287; Schaefer v. Schaefer, 141 111. for the children of the testator's 337, 345; Young v. Harkleroad, deceased brother Irwin he rnentioned 166 111. 318; Madison v. Larmon, them by their proper names. When 170 111. 65, 81 ; Field v. Peoples, 180 he devised to children of his living 111. 376, 381; Ebey v. Adams, 135 brother Eawley he did so by flam- Ill. 80; Schuknecht V. Schultz, 212 ing them as a class. 111. 43, 47, 48; Pitzel v. Schneider, 52 187 111. 540, 546. 216 111. 87; Dwyer v. Cahill, 228 111. ss Ante, § 420. 617; Dime Savings Co.-i;. Watson, ^* Ante, §406. 254 111. 419. In Handberry v. Doc- ss 122 111. 317, 330. 651 § 567] FUTURE INTERESTS [CH. XXII of the death of the life tenant, or later, were intended to share, the rule of the English cases ^* would seem to be that only chil- dren born at the death of the testator could take.^'^ In ac- cordance with this holding the class of grandchildren in Rowe V. Hodge,^^ must have been determined, as regards the whole estate, including that part subject to a life interest, not when the life tenant di«d, but when the time came for actually pay- ing over a share to one of the members of the elass,^^ that is, when the eldest grandchild reached twenty-five. § 567. Rule when the period of distribution comes because of the happening of a contingency to a member of the class — Where there is a contingent gift to the children of A who reach twenty-five : The ^rst period of distribution here comes when the first child, whether the first born or otherwise, actually reaches twenty-five. If a specific sum, or a residue, be left to be distributed among the whole class, then the class will deter- mine at that time.*" § 568. Where the gift to the class is vested : Suppose the gift to the class, inistead of being contingent upon the members of it reaching a certain age, is vested in interest at once upon the testator's death or the execution of the settlement inter vivos, but subject to a postponed enjoyment until the members of the class respectively reach a certain age, — ^let us say twenty- five. Apart from any question of remoteness in the gift to the class, or of the invalidity of the postponed enjoyment clause E8 Coventry v. Coventry, .2 Dr. class remained open as to the whole & Sm. 470; Hill v. Chapman, 1 estate till the end of the life estate Ves. 405; Hagger v. Payne, 23 in pait, seems -to have gone upon Beav. 474; Hawkins on Wills, 74- the ground that by the special con- 75; Theobald on Wills, 2nd ed. 246; text of the will involved air the 2 Jarman on Wills, (6th ed. Bige- grandchildren born at anytime were low), star page 1013._ included. 57 A North Carolina case, Brit- bs 152 111. 252. ton V. Miller, 63 N. C. 268, 270, an- ss Post, § 568. nouncing a little different rule, did 6« This rule yields to the special not go farther than to let children context of the instrument, as in born after the testator's death, but Ingraham v. Ingraham, 169 111. 432, before the termination of the life 469, where the distribution was to estate, share in that part subject occur to nephews and nieces if they to the life estate. should be at any time during their Annable v. Patch, 3 Pick. (Mass.) respective lives in need, but by the 360, where it was held that the words describing the nephews and 652 Ch. XXII] LIMITATIONS TO CLASSES [§ 568 itself because it may last too long, the postponement would be valid. It is of course, valid, where Claflin v. Claflin,^''- is law. It is equally valid under the English cases ^^ which recognize as a general rule that these postponements of absolute equitable interests beyond the period of the cestui's minority are bad. There the postponement is said to be valid as a relaxation of tiie general rule when the sustaining of it is for the benefit of persons other than the cestui — viz., other members of the class.^^ When does the class determine in such a case? This depends according to the usual rules for the determina- tion of classes upon the time when the first period of distribu- tion arrives. * There are three possible points of time at which this may occur. First, when the first child living at any time reaches twenty-five; second, when the eldest child actually reaches, or if he had lived, would have reached twenty-five; third, when the eldest child reaches twenty-five or dies under that age. It is submitted that the first time indicated is out of the question. It would of course lead to absurdity where all the children die under twenty-five. There can be no reason for thus adopting a view which may in fact greatly extend the time for, the payment of the share of the children beyond the period actually expressed in the testator's will.®* As between the second and third views perhaps a choice may be difficult." ^ The English eases have held that the second is the proper period nieces as those "who are the chil- tion of classes be too remote. As dren" of the testator's brothers the eldest grandchild in that case and sisters, the class was determined was ten years old at the testator 'a at the testator's death. death, such an assumption must 61149 Mass. 19, post, §§732 et have proceeded upon the supposi- geg. tion that the first period of dis- 62 Oppenheim v. Henry, 10 Hare tribution does not come till the first 441. grandchild born at any time actually 63 Fost, § 680. reaches twenty-five. Such a pre- «* Comments upon Kevern v. mise is, it is believed, out of the Williams, 5 Sim. 171 (1832), have, question. it is believed, assumed the gift to es The attitude of the court in the grandchildren of the testator's Howe v. Hodge, 152 111. 252, re- living brother, which was vested, garding the increase of the class but subject to a postponement of seems consistent with either view, ■payment till each respectively since tie eldest grandchild in esse reached twenty -five, would, -upon at testator's death was over four the usual rule for the determina- years old. 653 §569] FUTURE INTERESTS [Ch. XXII of distribution,"" except where the whole interest of the legacy is given to the legatee in the meantime.*'' In that case the inference is that the third period is the propei* one because it is the earlier, the postponement is purely personal to the legatee,*' and the actual rights of others to the income or interest are not affected by its adoption. § 569. Where the gift is to the children of A, to be divided among them when the joungest reaches twenty-one: What is meant by the "youngest?" Does it mean the youngest living at the testator's death, the youngest of all the children living at any one time, or the youngest of any that may ever be born? It is believed that our Supreme Court has never had to go farther than to hold that it meant the youngest of those living at the testator's death, for in the only two eases in this state where the point has been raised, the youngest living at the tes- tator's death had not reached the required age.*^ .In both cases, however, the court refers to a child born subsequent to ceEoden v. Smith, Amb. 588 (1744); Maher v. Maher, 1 L. E. Ir. 22 (1877). <" Eoden v. ^mith, supr,a. 88 In support of this, see the hint in Claflin •«. Cliflin, 149 Mass. 19, to the effect that a creditor or gran- tee of the cestwi might be entitled to immediate possession of the prop- erty, although the cestui had not reached the age set for the distri- bution. Consistent with this sug- gestion as well as with the view that the postponement is wholly void, are Sanford v. Lackland, 2 Dill. (p. S.) 6, (Gray's Eestraints on Alienation, 2nd ed. § 114) , and Havens v. Healy, 15 Barb. 296 (id. §116). Note, also, that in Lunt V. Lunt, 108 111. 307, the postponed enjoyment clause, so far as it affected the share of the youngest child would last for too long a time; unless by its proper construction it was operative only untU the dfevisee actually reached thirty or jjgd und erjhat age, since the youngest child was only one year old at the testator's death. The actual holding of the postponement valid^is really a decision that the postponement only continues, till 'the devisee reaches thirty, or dies undar_that_age. ~ 69 In Haudberry v. Doolittle, 38 111. 202, the child of A, born after the testator's death but when the youngest child living at the testa- tor 's death was only seven years old, was permitted to share. In McCartney v. Osburn, 118 111. 403, partition proceedings were held to have been prematurely brought, ' where a child of A, bo^n after the testator's death, bad not reached twenty-one. It is fair to infer, however, that A's youngest child living at the testator's death had not reached twenty-one because A was a woman and had borne seven other children at the time of the testator's death and one born a yeftr afterwards. 654 Ch. XXII] LIMITATIONS TO CLASSES [§ 571 the testator's death as the "youngest" child designated, and gives the impression that the period of distribution would not arrive until that child reached the required age. This would sug'gest the rule that the period of distribution arrived when (yPth£_ehildren Jivingjt any .one_tiiiie_had_xeacheiJhe requicfid § 570. Where the gift is after a. life estate to such children of A as reach twenty-one: If the preceding life estate is in A then the class closes _at_ A 's death and then only. If the life interest is in one other than A, then the class closes only upon the happening of two events,'^'' —the termination of the life estate and, the coming of the time when the eldest njember of the class actually reaches twenty-one, or would have done so had he lived, or, perhaps, when he reaches that age or. dies before attaining it.'^i TITLE V. MEANING OP "HEIRS" IN A LIMITATION TO THE TESTATOR'S "HEIE8," OB THE "HEIRS" OF A LIVING PERSON. §571. Primary meaning of "heirs": The primary mean- ing of "heirs," in a gift to the heirs (^ the testator or of a livirig person, includes those persons who answer the description of heirs at the testator's or living pei'son's death. It cannot desig- nate anyone prior to that time because a person while alive can have no heirs.''** Nor can it be confined to a special class of heirs, such as collateral heirs by blood, so as to exclude an adopted child who is a statutory lineal heir. Thus in Butier- field V. Sawder ''^^ where the limitations were by deed to a daugh- ter for life, then to her children, and in default of such children to her "heirs generally," except George (a brother), '^heirs" ToPitzel V. Schneider, 216 111. 87. Ayers v. Chicago T. & T. Co., 187 " Ante, § 568. 111. 42, 60 ; Clark v. Shawen, 190' 7ialn its primary Meaning the III. 47; Kirkpatriek v. Kirkpat- worfl "heirs" refers to p/jrsons en- rick, 197 111. 144, 151, 152; Hill v. titled to succeed in case of intes- Gianelli, 221 111. 286; Carpenter v. tacy; Bawson v. Rawson, 52 111. Hubbard, 263 111. 571; People v. 63; Richards v. Miller, 62 111. 417; Camp, 286 111. 511; Henkins v. Hen- Kelley v. Vigas, 112 111. 242; Kel- kins, 287 111. 62. lett V. Shepard,"139 111. 433, 442; "b 187 111. 598. Smith V. Kimbell, 153 111. 368, 375; 655 § 572] FUTURE INTERESTS [CH. XXII meant those persons whom the S'tatute designated as heirs and the adopted child was includedJ^ So far as heirs .by blood are concerned the Statute on Descent determines who are in- cluded in a gift to heirs. Whether a surviving spouse, or an adopted child, who are heirs by the statute are included, is considered post, §.§ 573, 574, 584 et seq.''^ The statute also determines the quantity of state which each heir, who is included, takesJ^ Our Supreme Court has recog- nized and followed ''^ the general rule stated by Jarman '^'^ that if a gift be made to one person and the children of another — as, for instance, to A and the children of B — A and the children of B in such case primarily take per capita and not per stirpes. But this construction yields to a very faint glimpse of a dif- ferent intention in the context, which was found by the court in the cases in this state recognizing the general rule. Where, however, the gift is to the "heirs of A" and A leaves as his heirs a child and the children of a deceased child, the children of the deceased child will take only the share their parent would have taken. Hence the distribution is per stirpes and not per capita.''^ The heirs will, however, take per capita if such in- tention is clearly expressed.''^ It should be observed, however, that the direction to "divide equally among my heirs" is not sufficient to induce a construction that the heirs take per capita and not per stirpes.^'^ § 572. Gift to the testator's heirs where a preceding inter- est is expressly limited to one who is an heir or the sole heir of the testator at his death: Suppose the testator limits a "Post, §§584 et «eg. "2 Jarman on Wills (6th ed. 73 Whether an illegitimate child, Bigelow), star pages 1050, 1051. who is heir of its mother, is in- 78 Richards v. Miller, 62 111. 417, eluded, see ante, § 140. 425 (what law governed was here '5 Kelley V. Vigas, 112 111. 242 ; also considered) ; Kelley v. Vigas, Richards v. Miller, 62 111. 417; 112 111. 242; Thomas d. Miller, 161 Kirkpatrick v. Kirkpatrick, 197 III. 111. 60, 72-73; Kirkpatrick v. Kirk- 144, 150, 152; Thomas v. Miller, patrick, 197 lU. 144, 148, 149. See 161 111. 60, 73. But the terms of also Young v. Harkleroad, 166 III. the will may include a different 318. quantity or distribution, as in Au- 79 Auger v: Tatham, 191 111. 296. ger V. Tatham, 191 111. 296.- so Kelley v. Vigas, 112 111. 242; 76 Pitney v. Brown, 44 111. 363; Kirkpatrick v. Kirkpatrick, 197 111. McCartney v. Osburn, 118 111. 403, 144. 424. 656 Ch. XXII] LIMITATIONS TO CLASSES [§ 572 future interest after a life estate, or a shifting executory devise after a fee, to his heirs or next of kin. What is the scope of the word "heirs?" Does it mean the testator's heirs at the time of his death or those persons who would have been the testator's heirs if he had died at the time of the death of the life tenant? Of course, the primary meaning of "heirs" is heirs of the testator at the time of his death,*i and this will be the meaning of heirs in the cases put unless something ap- pear to lead to a contrary conclusion.** The testator may, no doubt, by apt words, make his meaning perfectly clear. But suppose he does not do so. Under what circumstances will a court undertake to say that those persons who would have been the testator's heirs, if he had died at the time of the life tenant's death or upon the termination of the fee, are meant? The above problem has come up in Illinois in this form : The testator devises to A for life, and if A dies without issue living at his death then to the testator's heirs' at law. Suppose A is one of several heirs at law of the testator. Following the lead- ing English case of Bolloway v. Holloway ^^ our Supreme Court has held that under these circumstances there is nothing to prevent "heirs" from having its primary meaning of heirs of the testator at the time of his death.** If, on the other hand, the life tenant, A, is the sole heir of the testator at the time of his death, it may be argued that the giving of the life tenant a fee in remainder would defeat the plain gift of the life estate. Jphnso Sewall V. Roberts. 11.^ Mass. the case is one of a settlement of BfB § 589] FQTURE INTERESTS [CH^ XXII § 589. The proposition of § 588 is not controverted by the exception in the adoption act providing that the adopted child "shall not take property expressly limited to the heirs of the body or bodies of the parents by adoption": si This exception covers the case where the adopting parents, or one of them, would by the common law, take an estate tail. The Massachusetts and Ehode Island decisions have both declared that the exception in the adoption act is confined strictly to a limitation to "heirs of the body or bodies" of the parents by adoption ; that these words have a technical meaning and that the exception does not cover a limitation to the issue or children of the adopting parents.*^ § 590. The proposition of § 588, so far from being contro- verted, is rather strengthened by the Massachusetts act of 1876, which expressly excludes the adopted child from taking under the designation of "children" in the will or settlement of one other than the adopting parent, unless there is an express in- tention that such child shall be included : In Wyeih v. Stone «=* the testator devised the residue of his estate to his adopted daughter E, but if the said II shall die without issue before the decease of nly said wife, then I give, bequeath and devise said remainder "to the heirs at law of my said wife." E died without issue. The testator's widow subsequently died having had no children hy birth, but having adopted H, who .sur- his own property upon himself is than the adopting parent. This that in equity the subject-matter of statute was passed in view of what the settlement belonged to him. The was regarded as the holding in adopting parent was himself entirely SewaJl v. Roberts, and, therefore, divorced from any connection with shows the authoritative acceptance the language actually employed in of Sewall v. Roberts, as a case an- the settlement. In the other cases, , nouncing a rule where the settle- supra, Sewall v. Roberts, is treated ment was made by one other than as a direct authority for the case the adopting parent. ' where the will or settlement was «i See Supplement to the Gen. made by one other than the adopt- Stats, of Mass., Vol. 1, 1860-1872, ing parent and subsequently the ch. 310. legislature of Massachusetts amend- 62 Sewall v. Roberts, 115 Mass. ed the adoption act so as to 262; Tirrell i). Bacon, 3 Fed. 62 provide in terms what should be (U. S. Cir. Ct. of Mass.) ; Hart- done where the word "heirs," "is- well v. TefEt, 19 R. I. 644. sue " or " chjldren ' ' was used in 63 144 liass. 441. ( the will or settlement of one other 680 Ch. XXII] LIMITATIONS TO CLASSES [§ 591 vived her. The court seems to admit that under the Massa- chusetts act as it stood in 1871 and prior to 1876, and in view of the case of Bewail v. B&berts ^* the adopted child H would have taken. The .result reached against the adopted child in Wi/eth V. Stone was due wholly to the amendment of 1876. There never has been added to the Illinois act what was added to the. Massachusetts act by the amendment of 1876. Therefore, the Illinois act stands as the Massachusetts act stood before 1876, and the case of Wyeth v. Stone, therefore, has no application in Illinois except to prove that apart from the special statutory provision which does not exist, the adopted child must be in- cluded. In Blodgett v. Stowell^^ the testdtor devised to his son I^emuel for life and after his death to his ' ' issue, ' ' but if he left no "issue," then to those of hig "heirs who shall then be living, in equal shares, by right of representation." Lemuel died leaving him surviving only an adopted daughter, who was adopted in 1891. The question was whether the adopted child came within "issue" or "heirs." The Massachusetts, court held that under the adoption act as it stood since 1876, the adopted child could not come under either designation, biit it again intimated its opinion that under Sewall v. Roberts, the result must have been otherwise and that the amendment of 1876 miide a material change in the law with regard to the rights of adopted children and probably was passed in consequence of the decision in Sewall v. Boberfs. § 591. The proposition of § 588 is not controverted by those ca^es where the adopted child was excluded because the will or settlement was executed long before there was any adoption act in force: Even where "children" or "issue" in a will or settlement refers to those who acquire the status of "child" or "issue," yet it is possible to say that the status referred to is such as may be acquired under the law as it stands at the time the will or settlement is executed. Hence, if no general adoption act be then in force, the child adopted under a subsequent act will not be included in those designated. Some cases so hold.'® "Whether this is the better view will be considered hereafter, post, § 595. It is enough at this point to indicate that the cases «« 115 Mass. 262. See also Jenkins v. Jenkins, 64 N. 85 189 Mass. 142. H. 407; Schafer v. Eneu,-54 Pa. 6» Wallace v. Noland, 246 111. 535. St. 304. 681 § 592] FUTURE INTERESTS [Ch. XXII SO holding do not necessarily interfere with the proposition that the adopted child is included when at the time of the execution of the will or settlement there is in force a general adoption act giving to tlie person adopted the status of a child or issue. § 592. The proposition of § 588 is not controverted by cases where the special context of the instrument shows that "chil- dren" or "issue" meant a class composed of those who ob- tained their status by actual birth only: ^'' In Freeman's Es- tate^^ there w.as a trust to pay the income to the testator's sons and daughters and then to pay the share of income of each "to such person or persons of kin, to such son or daughter," as he or she may by will appoint, and in default of such appointment, to the child or children of such son or daughter. It was held that as a result of the words "of kin" the power to appoint did not include the power to appoint to an adopted child and that the gift over in default of appointment to the child or children by natural inference also required that they be of kin — that is, of the blood of the testator. As a matter of fact the opinion of the court hardly takes up the contention of the adopted child. In New York Life Ins. Co. v. Viele ^^ the testatrix devised to her daughter Eniily for life, then to her "then living lawful issue. " If no such issue, then the share to be held in trust for my ten grandchildren hereinafter named. Emily married and had no children by birth, but had a child adopted under the law of Saxony, which gave her the status of a child or issue. The adopted child was, however, excluded on the ground that the special context of the instrument showed clearly that "issue" Was used as including only descendants by blood and not chil- dren by adoption.'^" No purpose would be served by analyzing the special context. It is sufficient to say that the special con- text was so strong that the court remarked in conclusion: "It would be difficult to conceive of a clearer indication of the purpose of the testatrix to transmit the whole estate to her own descendants." ''^ 67 See cases cited ante, 584, where ea lei N. Y. 11. "heirs" by the special context was '"The court analyzes the special held to mean only heirs by birth, context, pp. 20-22. and so the adopted child was ex- 7i The court also placed its de- cluded. cision upon th? ground that "if 68 40 Pa. Sup. Ct. 41. Olga had been adopted under the 682 Ch. XXII] LIMITATIONS TO CLASSES [§ 593 § 593. The proposition of § 588 is controverted by two cases —one from Maine and the other from Wisconsin. In Wood- cock's Appeal ^2 the testatrix, making a will in 1890, eight years after her son Horatio had adopted a child, devised a share to Horatio, and in case he died before the death of the life tenant (which event happened), then over to "the child or children of said deceased child." Horatio died leaving only the adopted child. It was held that she was not entitled. This could not go on the ground that the child did not have the status of a child under the Maine adoption act, for it had been already deter- mioed in several cases, and among others Virffm v. Ma/rwick,''^ that the person adopted did acquire, the status of sf child. The Woodcock case, then, goes solely upon the ground that the testatrix must, be held to have used the word "children" when acquired the status of children, but only those who were children by birth. The court said: "When in a will provision is made for 'a child or children' of some other person than the testator, an adopted child is not included unless other language in the will makes it clear that he was intended to be included, which is not the case here."'^* Nevertheless, the court in Virgin v. Marmck, had just held that ' ' children ' ' as used in an insurance policy ob- tained by the adopting parent long before any adoption was con- templated was on a different footing and did refer to all who acquired the legal status of child, even though it were by adop- tion. Nor does the court find any difference in the mind of the insured or the testator between the case where the testator or the insured provides for his children long before any adoption is thought of and the case where somebody else provides for his children. Plainly -there is none. With reference to possible future adoptions the mind of each is exactly the same. In most cases probably neither the third party nor the person who subse- quently becomes the adopting parent thinks of the inclusion or exclusion of an adopted child at all. They merely use general words in a general way to indicate the class of persons who obtain a certain status. The Maine court finds its only basis for statutes of this staie, she woul3 be '2 103 Me. 214. precluded from^ taking anything un- 's 97 Me. 578. der this will by the express words '* 103 Me. 214, 217. of the law regulating domestic re- lations (§64) ■* * *." 683 § 593] FUTURE INTERESTS [CH. XXII making a diiference between the insurance policy of the adopt- ing parent, obtained long before any adoption, and the will of a third party, in the fact that: "Where one makes provision for his own. 'child or children' by that designation, he should be held to have included an adopted child, since he is under obliga- tion in morals if not in law to make provision for such child." This is an interesting proposition. The court gives the words used a primary meaning different in the two cases, because it believes the moral duty in one differs from the moral duty in the other. For authority the Maine court rests upon Russell v. B'wssell,'^^ and Schafer v. Eneu,''^ both of which went off on'the ground that the adoption act in force was too meager to give the person adopted the status of a child. Schafer v. Eneu, also went off on the ground that when the will was made there was no adoption act in force and vested interests were created under the law as it stood before any adoption act, and those vested interests could not under the constitution be interfered with by any adoption occurring under a subsequent act of the legislature. In Russell v. Rnssell the court expressly declared that had the statute been as broad as the Maine act in giving the person adopted the status of a child by birth, the adopted child would have been included. In Lichter v. Thiers '^^ a testator made his will after the pas- sage of a general adoption act, which, so far as the rights and status of the adopted child are concerned, is like the statute in force in Massachusetts in 1874, and like the Rhode Island and Illinois acts. The testator's will, however, was made long be- fore any adoption had occurred or was thought of. The testa- tor devised to Mary for life and then to her children living at her death, with a gift over if she had no ' su^ch children, to whomsoever she should appoint, and in default of appointment to a nephew in England. The testator died before any adoption occurred. Mary died leaving only an adopted child. It was held that the adopted child did not take. This, of course, could not go upon the ground that the adopted child did not acquire the status of a child in whatever manner, but only those who language of the opinion ''^ shows that the court , inclined to a " 84 Ala. 48. '7 139 Wis. 481. 78 54 Pa. St. 304. 's id. 487. 684 Ch. XXII] MMITATIONS TO CLASSES [§ 593 rather narrow construction of t"he statute in this respect. Never- theless, it is submitted that the terms of the statute are too broad and clear to prevent the conclusion that the adopted person obtained the status of a child by birth. The basis for the de- cision in the Wisconsin ease was that according to the proper construction of the will in question the word "children" in- cluded in the, first instance and primarily, not those who acquire the status of a child in whatever manner, but only those who were children by actual blood relationship. The court, however, refuses to make any such distinction as was made in the Maine ease. It insists upon the primary meaning of "children" as including only childrten by birth, whether the word is used in the will of the adopting parent or in the will of a third person, provided always it be used long prior to any adoption. The court speaks of the Woodcock case as adopting a "pretty arbi- trary rule of construction" in making a distinction between the will of the adopting parent and the will of a third person. The weakest aspect of the opinion in the Wisconsin case is the line of cases cited as "directly in point." They are Schafer v. Eneu,"'^ Woodcock's Appeal,^^ Wyeth v. Stone,^^ Blodgett v. Sto^vell.^^ Schafer v. Eneu, proceeded, as has already been several times indicated,** principally upon the ground that the Pennsylvania statute was not sufficiently broad to give the per- son adopted the status of a child at all. The Woodcock case, the Wisconsin court itself speaks slightingly of, and refuses to adopt the distinction which it draws. The Wisconsin court's special reliance upon Wyeth v. Stone and Blodgett v. Stowell, is quite incomprehensible. These eases, it declares, are "sig- nificantly in point since they are from Massachusetts, the state from which it is supposed our statute was borrowed, and were decided long subsequent to Sewall v. Roberts,^* upon which counsel for appellant rely with confidence." But these two later Massachusetts cases went off on the special statutory pro- vision enacted in Massachusetts two years after Sewall v. Rob- erts was decided and in express terms covenng the very point which the Wisconsin case had before it, so as to exclude the '!> 54 Pa. St. 304. 82 189 Mass. 142. 80 103 Me. 214. 83 Ante, § 585. 81 144 Mass. 441. »* 115 Mass. 262. 685 § 594] FUTURE INTERESTS [CH. XXII adopted child. One could hardly think of a circumstance that could make the later Massachusetts cases of less value in aiding the "Wisconsin court in its conclusion. §594. In the' primary meaning to be placed upon "chil- dren" or "issue" in a will, settlement or insurance policy, no distinction is to be made between the instrument executed or procured by the adopting parent and one executed or pro- cured by a stranger: Tirrell v. Bacon,^^ Hartwell v. Tefft,^^ • and Bray v. Miles, ^'^ all hold that the words "children" or "issue" in the will of one other than the adopting parent are sufficient to include a person acquiring by an adoption act the status of a child. These same cases have regarded the leading case of Sewall v. Roberts ^^ as necessarily supporting the same result. So also^ has the Massachusetts legislature.** These cases, therefore, most clearly deny any distinction in the pri- mary meaning of "children" b£ised upon wjiether "children" is used in a will or settlement of one other than the adopting parent or the will or settlement of the adopting parent. In Lichter v. Thiers, ^° although "children" in the will of a third party excluded an adopted child, yet the court insisted that no difference was to be made between that case and the case of. the will of an adopting parent, executed long before any adoption was in contemplation. Only the Woodcock case *i suggests that a difference be made. If our Supreme Court had had any intention of making a distinction founded upon the fact that the will or settlement was executed by one other than the adopting parent, it certainly should have done so in Butterfield v. Sawyer.^^ In that case the court had before it the deed of a third party made long before any general adop- tion act, and there was a strong special context in favor of "heirs generally," meaning "heirs collateral by blood," and the question was so close that two jujiges dissented. Clearly it .was a case where the fact that the deed was made by one other than the adopting parent, if it were to be given any effect, ought to have defeated the adopted child. Yet the adopted 85 3 Fed. 62 (XJ. S. Clr. Ct. of 89 Ante, § 589. Mass.). 90 139 Wis. 481. 8« 19 E. I. 644. 91 103 Me. 214. 87 23 Ind. App. 432. 92 187 111. 598. 88 lis Mass. 262. 686 Ch. XXII] LIMITATIONS TO CLASSES [§ 595 child was included and no suggestion was made by this court that the question was any different because the deed was ex- ecuted by one other than the adopting parent than it would have been if the deed had been executed by the adopting parent long before any adoption was in contemplation.' Butterfield v. Sawyer at least indicates that in Illinois no great stress can be laid upon the fact that the deed or will is that of a person other than the adopting parent. § 595. Quaere whether the fact that when the will, settle- ment or insurance policy is executed there is no gfeneral adop- tion act in force will prevent the word "children" from includ- ing a person adopted under a subsequent adoption act: Where "heirs" is used in a will or settlement, it seems regularly to have been taken as meaning all who acquire the legal status of heir at the time when the class is determined — namely, at the death of the ancestor. Hence, it is immaterial whether when the will or settlement is executed there is a general adop- tion act in force or not.^* Logically the same line of reason- ing should be followed when "children" or "issue" is used, as referring to a class of persons who secure the status of "child" or "issue" at a future time. "Whoever obtains the status when the class is finally determined should be included. Hence it should make no difference that when the will or settle- ment was executed no 'general adoption act was in force. Such is the precise holding of a number of cases. ^* Wallace v. Noland^^ seems directly contra, the exclusion of the adopted person being in that' case properly based only upon the ground that no adoption act was in force when the will was executed.^^ Butterfield v. Sawyer ^^ is distinguished 03 Butterfield v. Sawyer, 187 111. »" See also Clarkson v. Hatton, 598; Johnson's Appeal, 88 Pa. St. 143 Mo. 47, where one reason for 346 ; MeGunnigle v. MeKee, 77 Pa. not allowing an adopted child to take St. 81. ' a statutory remainder to ' ' children ' ' »* Sewall V. Roberts, 115 Mass. which was substituted in place of an 262; Tirrell v. Bacon, 3 Fed. 62 estate tail, was that when the Stat- (TJ. S. Cir. Ot. of Mass.). In Hart- ute on Entails was passed there was well V. TefEt, 19 E. I. 644, there no general Adoption Act. There was no Adoption Act in force, but were, however, other reasons for tlie the will was confirmed after a gen- result reached, era! Adoption Act had been passed. o' 187 111. 598. 05 246 111. 535. 687 § 595] FUTURE INTERESTS [CH, XXII because there the word "heirs" in the deed was coupled with the word "generally." This the court thought presented a special context sufficient to hold that "heirs" included all who had acquired the status at the time when the class was finally- determined. This suggests that if the will contained a devise to the "lawful" children of A living at his death, it might be held to include the adopted child, though.no adoption act was in force when the will was executed. In ScJiafer v. Eneu^^ a testator died in 1851, devising a life estate to his wife, remainder in fee to }ier children and the residue to the testator's children in fee. After the adoption act of 1855 the wife adopted children in conformity with the act, and died in 1861. The adopted children were excluded. This proceeded j)rimarily upon the ground that the adoption act did not give them the status of children, but only the status of heirs. The court, however, did say that the testator's chil- dren had a vested interest at his death and that it could not be divested by an adoption under the act of 1855. This really involves the question whether the word "children" meant those who acquired the status at any time before the wife's death, when the class closed. If it did, then there was no objection to the divesting of a vested interest pursuant to the actual meaning of the testator's language. If, on the other hand, "her [referring to the wife] children" meant only children by actual birth, then the subsequent adoption act was ineffectual to confer any benefit on a person adopted, even though it conferred the status of a child upon the person adopted. The court in declaring the act of 1855 ineffectual to divest a vested interest, must have had in mind a construction of "children" of , the wife which restricted those who could take to such as were able to acquire the status of children at the time the will was executed. In this view it presents the same conclusion as Wallace v. Nolcmd. In Jenkhis v. Jenkins ^9 a testator in 1830, long before there was any general adoption act, died leaving a will devising to his son William, absolutely, and if the said William should die "leaving no issue," then over to a brother. William died in 1886 leaving only an illegitimate child. A year later a decree 98 54 Pa. St. 304. m 64 N. H. 407. 688 Ch. XXII] LIMITATIONS TO CLASSES [§595 of adoption of his illegitimate daughter upon the joint petition of himself and his wife was entered. It was held that the adopted child was not included in the term "issue." It would seem that this result might have gone upon the ground that the adoption decree was not entered until after the death of "William. Hence the adoption proceedings must have alDated so far as William was concerned and the child was, therefore, only the adopted child of the mother. The court, however, actually put its decision upon the ground that the word "issue," when the will was executed and the testator died, had a statutory ' meaning which included all the lawful lineal deseendents, and as such it could not include the bastard or an adopted child, and any attempt of an adoption act subsequent to the testator's death to alter the meaning df the word "issue" must be unconstitutional and void. The soundness of this last may well be doubted.*^* In any event, however, the reasoning of the case does not controvert the general proposition that "children" or "issue" in a will or settlement of one other than the adopting parent, executed long before any general adoption act is in force, primarily includes those who secure by adoption before the class is determined, the status of "children" or "issue." 09a Butterfield v. Sawyer, 187 111. »» 598, serrible. See also Miller's Ap- peal, 5S Pa. St. 113. Kales rut. Int. — 44 :.' ggg CHAPTER XXIII. DIVESTING CONTINGENCIES AND CONDITIONS PRE- CEDENT TO THE TAKING EFFECT OF EXECUTORY DEVISES AND BEQUESTS— ACCELERATION. § 596. Interests are not divested unless the event upon which the divesting is to occur strictly happens : ^ This is the application of a general rule that the courts lean against a construction which will divest an interest already vested.^ When, however, there is a divesting clause and the event hap- pens, it must be given effect. Nevertheless, there are several cases in our Supreme Court reports where, upon grounds not perceived by the writer, the gift over, which might possibly have taken effect, was ignored and the first taker decreed to have an absolute and indefeasible interest discharged of the gift over. In Pearson v. Hanson-,^ where a residue was given in trust to pay the income for ten years to named persons, with an express gift overftf any died within the ten year period, to such deceased person's heirs-at-law, the court held that each beneficiary took an absolute and indefeasible interest which on his death within the ten year period, passed to his devisee and that his heir-at-law had no claim. This was in effect a holding that there was no gift over at all. In Rissmwn v. Wierth* there was a devise to the wife "and to her heirs and assigns forever," with a gift over after her death. It was held that she took a fee and the gift over was apparently ignored.^ § 597. Effect of the failure of a gift over upon the preced- ing interest: Where the gift over is to persons described as "liying" at the first taker's death, or to persons who may 1 Henderson v. Harness, 176 111. s 230 111. 610. 302; McFarland v. McFarland, 177 * 220 HI. 181. 111. 208, 217; Myers v. Warren Conn- 6 Ortmayer v. Elcock, 225 111. 342, ty Library Assn., 186 111. 214. ante, § 173. See also Bigelow v. 2 Ante, § 540. Cady, 171 111. 229, post, § 661. 690 Ch. XXIII] DIVESTING CONTINGENCIES — ACCELERATION [§ 597 come into being, the quality of surviving or the existence of the persons designated has been held to be a part of the divest- ing contingency. If, therefore, there are no survivors, or the persons designated do not come into existence, the first taker's interest will not be divested.^ Duryea v. Duryea'' is a case of this sort. There the gift over was to 'the survivor if the first taker died without leaving issue. "Survivor" did not mean "other"* but literally "survivor." Hence, when, upon the death of the first taker without issue, there was no survivor, the first taker's interest was not divested.^ If the gift over fails because it is in excess of a power or because of illegality under the Mortmain Acts (as distinguished from illegality for remoteness), but the divesting contingency literally happens, it has been held that the first taker's interest . is divested." The mere taking effect of the gift over was not part of the divesting contingency. But if the gift over is void for remoteness then if any other gift, whether by the testator or due to descent upon an intestacy, were given effect, it would equally offend the Rule against Perpetuities. No divesting of the first taker's interest by the happening of the divesting con- dition is, therefore, permitted to occur. ^^ Suppose the gift over fails because of lapse where the gift Harrison ,v. Foreman, 5 Ves. Perpetuities, 2nd ed. §786), but he 207 (1800) ; Jackson v. Noble, 2 only suggests that the decision is in-' Keen 590 (1838). explicable to him because it is ' 85 m. 41. ' ' against the marked policy of the 8 Post, § 606. law for not readily divesting veste'd 8 See also South Norwalk Trust estates." That policy, however, is Co. V, St. John, 92 Conn. 168, where only one of the aids to interpreta- there was a provision of forfeiture tion. When, however, the court if any beneficiary contested the will, finds a clearly expressed divesting with a gift over to those who did not contingency which has happened and contest. All contested, so there where the person is in esse, but the could be no gift over. There, nev- gift fails because of a rule of law ertheless, was held to be an intes- defeating expressed intent, the pol- tacy. iey of the law against divesting in- 10 Doe V. Eyre, 5 Com. Bench. terests would seem to have no logi- 713 (1848) ; Kobinson v. Wood, 27 cal bearing on the question of inter- Law J. Ch. 726 (1858). See also pretation of the language used. Hurst V. Hurst, 21 Ch. Wiv. 278, n See post, §§ 705-709 for a.iull 284-286, 290, 293, 294 (188|2). discussion of the effect on prior in- Mr. Gray strongly disapproved of terests of the failure, of subsequent Eobinspn v. Wood (Eule ' against interests because^ of remoteness. 691 § 598] FUTURE INTERESTS [CH. XXIII over is to A simpliciter if the first taker dies without leaving issue. This is not quite the same as where the gift over is to A if he survives tlie first taker ; nor is it quite the same as where the gift over fails for illegality (other than for remoteness). In O'Mahoney v. Burdetf^^ the first taker's interest was di- vested. In a New Jersey case ^^ it was not. If the divesting contingency happens and the gift over is only for life, the interest of the first taker is not wholly divested but only divested pro tanto to serve the life estate, i* § 598. Effect upon an executory devise of the failure of the prior gift : Usually the gift over takes effect upon some event which divests the preceding interest. Occasionally the case arises where the prior gift fails for a reason which raises a question whether or not the event has happened upon which the gift over is to take effect. Suppose thp first gift is to a class — such as the children of A — with a gift over if they die under twenty-pne to B. If no members of the class ever come into being B will, nevertheless, take. 15 If a member of the class does come into existence, but dies under twenty-one after the testator's death, clearly the gift over will take effect, i'* If a member of the class comes into being and dies under twenty-one in the life of the testator the gift over takes effect ^'^ because, following the general rule i* "die" means "die either before or after the testator's death." i* If a member of the class comes into being and survives twenty- 12 L. B. 7 Eng. & Ir. App. Cas. it Willing v. Blaine, 3 P. Wms. 388 (1874). 113 (1731). 13 Druramond 's Ex'rs v. Drum- is^nic, §§ 531, 532. mond, 26 N. J. Eq. (11 C. 'A. " This was overlooked by our Su- Green) 234. preme Court in Frail v. Carstairs, 1* Gatenby v. Morgan, 1 Q. B. Div. 187 111. 310. In that case there was 685 (1876) ; Brown 99 111. 144, 149. ton V. Ward, as it appears in the re- 21 See also the language of Breit port in Atkyns was inaccurately v. Yeaton, 101 III. 242, 263. stated and that anything contra to 22 101 111. 242, 263. 738 § 640] FUTURE INTERESTS [CH. XXV attesting witnesses. She made a conveyance to her husbapd. This was defective as an execution of the power because of the absence of the attesting witnesses. The wife was dead. There was a jneritorious consideration and a substantial appointment. All the requirements of the English cases, for aiding a defective appointment were present, except thal^ the defective appoint- ment was by a wife in favor of her husband. On that ground our Supreme Court held that a court of equity would not aid ihe defective execution. In Goodrich v. Goodrich ^^ a widowhaving power to appoint among her children, contracted to appoint to her son whenever he requested a conveyance. The son died with- out having made any request. It was held that for that reason there was no substantial execution which could be aided by a court of equity. TITLE VII. WHAT WORDS EXERCISE A POWER. § 640. The plain case : Where the instrument recites that it is made pursuant to the power and for the purpose of exer- cising it, the words are clearly sufficient to accomplish th^t object.^* Careful conveyancing should not be satisfied with less than this. § 641. The difficult case occurs where the donee makes a general gift of all his property without any direct reference to the power or his intention to exercise it: In considering whether the power is exercised or not in such a case, several distinctions must be taken: (1) It may fairly be said that the rule of Clere's case ^^ has been followed so far as it declared that one who had no land of his own, but only land over which he had a power of appoint- ment would be held to have exercised the power, though he con- veyed, only in general terms, ^s 23 219 111. 426. ence to the power may have been. 2* Hawthorn v. Ulrieh, 207 III. 26 6 Co. 17b. 430, 432; Griffin v. Griffin, 141 111, 373, 383. In Henderson v. Black burn, 104 111. 227; Markillie v. Rag- land, 77 111. 98; Kaufman v. Brect inridge, 117 111. 305 and Jenks v. 26 Wimberly v. Hurst, 33 111. 166, 173, semhle. Is not this the proper explanation of Purser v. Short, 58 111. 477? Here the executors with power of sale under the will, but Jackson, 127 111. 341, it does not having themselves no beneficial in- appear what the terms of refer- terest in the real estate conveyed, 734 Ch.XXV] POWERS [§641 (2) The chief difficulty is over the ease where the donee con- veys in general terms only, without explicit reference to any power, and has lands or personal property of his own to which the language used may apply. The English courts, before the Wills Aijt,*^ administered this very rigid rule: General words of conveyance which might ap- ply to the property of the transferor over which he had a right of disposal apart from the power, operated ,to transfer such property only, and could not amount to the exercise of the power, unless there were a very direct and specific indication of an intention so to do. The, Wills Act changed this for a large number of cases by providing that a general devise of real and personal property shall operate as the exercise of a general power unless a contrary intent appear from the will. Our Supreme Court has not adopted either of these views. It certainly cannot be relied upon as administering the statutory rule, for in Harvard College v. Balch,^^ it distinctly held that the general residuary clause of the will of the donee would not oper- puiported to sell under a decree which was void. It was held, how- ever, that the deed could operate as the exercise of a power. Christy ■». Fulliam, as reported in 17 111. 59, might go upon the same ground. In this ease, how- ■ ever, as reported in Pulliam v. Chris- ty, 19 lU. 331, it appears that the donee of the power had a life estate in the property over which she had a power of appointment. It was held, however, that her life estate was inalienable. {Fast, § 730.) Upon that supposition she had no transferable interest except that over which she had a power of ap- pointment and hence the power may be regarded as well exercised under the rule in Clere's case, supra. ^7 Wm. IV and 1 Vict., c. 26, s. 27. 28 171 111. 275, 283. See also Cof- fing V. Taylor, 16 111. 457, 474; Davenport v. Young, 16 111. 548, 552. Observe, however, the following cases which seem almost to come up to the rule of the Wills Act: GofE V. Pensenhafer, 190 111. 200, 210 et seq., and Fairman v. Beal, 14 111. 244. See also Christy v. Pulliam, 17 111. 59 and Pulliam v. Christy, 19 111. 331, supra, note 26. In Griffin v. Grifdn, 141 111. 373, 381-382, the widow, who took a life estate under the will and had power of sale to pay debts, made a deed to Henry Griffin. The exer- cise of the power was sustained though the court said: "It is true that the power there granted was granted to Mary Griffin, the execu- trix, in her trust official capacity of executrix, and that she did not attach the designation of executrix to her signature to the conveyance, or name herself therein as execu- trix, or refer to any will or power. These, however, in our opinion are only matters of form and not ma- terial. 735 § 641] FUTURE INTERESTS [Ch. XXV ate as a valid appointment. According to the English cases un- der the Wills Act, the result would have been otherwise.** The fact, which the Illinois court calls attention to, that the will of the donee was made prior to the time when the will creating the power was probated, would not have made any difference under the English cases.^" In the same way the attitude of the Eng- lish eases before the "Wills Act seems to have been directly re- pudiated in this state.*^ The rule as administered in Illinois lies somewhere between the extremes. It is this : The instrument of appointment must still affirmatively show an express intent on the part of the donee to exercise the power ; ^2 but any circumstances, actually indi- cating that intent and appearing upon the face of such instru- ment, are sufficient. Thus, in Funk v. Eggleston,^^ the court laid great stress upon the fact that the donee specifically devised a wat^ which belonged to the estate of the donor and over which she had no power of disposal by will, except in the exercise of the power. She devised this watch as her property. From this it was argued by the court that whenever she spoke of her prop- erty she was including the property over which she had a power of disposition under the will of her husband. In Goff v. Pensen- hafer,^* the power was held to have been well exercised by a quit- claim deed of land in which the donee had a life estate and a power of appointment in fee, both held under the wiU of her hus- band. For this result the court relied only upon the language of the deed by which the grantor conveyed all her right, title and interest in the land of which her husband died seized and "which shall have or shall hereafter accrue to her by virtue of the last will and testament of her deceased husband. ' ' ^^ So, in Foster V. Grey,^^ the donee bequeathed legacies three times in excess of 29Spooner's Trust, 2 Sim. N. S. 474; Davenport D.^ Young, 16 ID. 129; CUfford v. Clifford, 9 Hare, 548, 552. 675 ; Attorney General v. Bracken- as 92111. 515. bury, 1 Hurl. & C. 782; In re Wil- 34 190 111. 200. kinson, L. E. 4 Ch. App. 587; Theo- 35 So, in Fairman v. Beal, 14 111. bald on Wills (2nd ed.), 178. 244, the exercise of a power by the 30 Boyes v. Cook, 14 Ch. Div. 53 ; devisee who was life tenant under Theobald on Wills, 2nd ed. 179. the will which created the power, 31 Funk V. Bggleston, 92 111. 515. was held valid, though the deed See, also, cases cited infra, notes contained only "a reference to the 34-36. will." 32 CofSng V. Taylor, 16 111. 457, 38 96 111. App. 38. 736 Ch. XXV] POWERS [§ 643 her own personal property, but less than her assets and those over, which she had a power of disposition combined. She also gave her executors full power to convey real estate. She had no real estate of her own, but she did have a power of appointment over some. From all these circumstances an expressed intent was found to exercise the power as to realty and personalty. In Bevans v. Murray ^'' a quit-claim deed was held to be a sufficient exercise of a power by a life tenant having power to convey the fee. This, however, went upon the ground that the adverse party alleged in his bill that such an effect should be given to the deed. In Biemenschneider v. Tortoriello ^^ a life tenant with power to convey the fee, who had contracted to make a convey- ance, offered a warranty deed which contained no reference to the power. The court intimated that this would have conveyed only the life estate so that the vendor was in default in the car- rying out of the contract. TITLE VIII. EFFECT OF EXCESSIVE EXECUTION. § 642. Usual rule followed in Illinois : In Hopkinson v. Swaim ^^ the life tenant had power to appoint a trustee for the remainderman, but no power to alter the beneficial interests. He appointed the trustee but attempted to make gifts over in certain events. The latter were in excess of the power, but were held to be so far separable from the provision appointing the trustee that the appointment was void only as to the excess and the entire appointment did not fail. TITLE IX. EXISTENCE AND SCOPE OP POWEES OF SALE AND LEASE.*" § 643. Power in executors and trustees to sell and dispose of the fee of real estate — Existence of the power: *i When the power to sell real estate is directly given to executors or 3T251 ID. 603, 621-622. powers. Whether a power exists 38 287 lU. 482. in an executor or trustee or in a' 39 284 111. 11, 21. life tenant or trustee, the question *" It is not believed that it is of construction is, it is believed, the necessary here, to make any dis- same. tinction between real and spurious *i Observe the jurisdiction of a Kales Put. Int. — 47 737 § 643] FUTURE INTERESTS [Ch. XXV trustees,*- the only difficulty is the extent of that power.*^ When the power is not directly expressed, nice questions arise as to when one may with certainty say that it is found expressed by interpretation. One line of reasoning at least by which a power may be thus expressed has been approved in this state. It is this : Where a testator expressly provides that a mixed fund of realty and personalty shall be dealt with as cash, there is, by necessary implication, a power to sell real estate. There is such an express provision clearly enough when the testator directs that a distribution be made in cash,** or, if the mixed fund be directed to be loaned out at the highest rate of interest obtain- able,*B or invested "in good bonds or mortgages,"*" and even where the trust estate is designated as a "fund."*^ So, where, in a settlement inter vivos, there was a direction to trustees to pay debts, to devote the principal of the fund to' the support of the settlor's family, and to pay over the fund to persons named, it was held that a power of sale of real estate was given.** It is equally clear, however, that no express intent that the mixed fund shall be dealt with as cash, arises frbm the direction to trustees or executors to "divide" the estate.*' court of equity to break in upon press direction to treat a mixed trusts and order a sale where no fund as cash and so adduce a pow- power is expressed: Longwith v. er of sale by implication. See also Eiggs, 123 111. 258; Gavin v. Cur- Dickson v. New York Biscuit Co., tin, 171 111. 640; Stoff v. McGinn, 211 111. 468, 482, for implication of 178 111. 46; Marsh v. Eeed, 184 111. power from direction to trustees to 263; Thompson v. Adams, 205 III. distribute what remains, see post, 552; Spengler v. Kuhn, 212 111. X86; § 644. Denegre D. Walker, 214 111. 113. ^9 Hale v. Hale, 125 111. 399 (di- *2 White V. Glover, 59 111. 459. rection to trustees to "divide"); ^sPost, §644. Poulter v. Poulter, 193 III. 641 (di- ** Poulter V. Poulter, 193 111. 641. rection to executors • to divide See also Brown v. Miner, 261 111. equally) ; Gammon v. Gammon, 153 543. 111. 41 (direction to executors to di- is Davenport v. Kirkland, 156 111. vide into parts and the parts to 169. belong, etc.) ; Haward v. Peavey, * t V. Lunt, 108 III. 307; Howe v. lives in being and twenty-one years, Hodge, 152 III. 252; Bigelow v. and in case of a posthumous birth, Cady, 171 111. 229, 232; Tlanner v. nine mouths more after the termi- Fellows, 206 111. 136, 141; Hender-' nation of the life estates." son V. Virden Coal Co., 78 111. App. is Howe v. Hodge, 152 111. 252, 437; Johnson v. Preston, 226 111. 274; Ingraham v. Ingraham, 169 447; Branson v. Bailey, 246 111. 111. 432, 451; Madison v. Larmon; 490; Dwyer v. Cahill, 228 111. 617, 170 lU. 65, 71. 623. 16 243 111.600,609. In Hart v. Seymour, swpra, a i' 277 111. 440, 447. definition to the same effect from is Eeid v. Voorhees, 216 111. 236, Andrews' Law Dictionary was ante, §§499, 500, 510, 513, 527; quoted with approval. Armstrong u. I^arber, 239 111. 389, In Andrews v. Andrews, 110 111. ante, §§ 499, 500, 509, 510, 516, 223, 230, the court stated the same 518, 523, 527, 528; Mettler v. War- idea in this way: "The law will ner, 243 111. 600, ante, §§499, 509, not permit estates in land to be 528; O'Hara v. Johnston, 273 111. tied up longer than for a life or 458, ante, § 527. 752 Ch. XXVI] RULE AGAINST PEBPETUITIES [§ 658 applying the Rule as a measure to the ' limitations which are, expressed.i^ In some instances this is a process requiring care and skill.2o TITLE II. THE EULE AGAINST PEBPETUITIES DISTINGUISHED EEOM THE BULE WHICH MAKES VOID BE8TEAINTS ON ALIENATION AND PBOVISIONS BEQUIBING A TBTJSTEESHIP (OTHEBWISE VALID) TO BE EFFECTIVE AT TOO EEMOTE A TIME. f § 658. The special rule as to restraints on alienation and pro- visions for indestructible trusts : As soon as any restraints on alienation are permitted the question arises, how long will they be allowed to continue or at what time in the future may they be imposed. The English judges met these questions with re- gard to restraints on alienation attached to the separate prop- erty of a married woman. The interest vested in the married woman in time so that the Rule against Perpetuities was not violated. But a restraint on alienation could be imposed which might be in operation more than lives in being and twenty-one years after the i creation of the interests. Jessel, M. R., was right; when he said that the Rule against Perpetuities was not violated. His opinion was that since restraints on alienation upon a married woman's separate property were an exception to the invalidity of restraints on alienation in general, there ought to be no restriction upon them. But he yielded to deci- sions which had already heen rendered and held that if the re- straint might be in operation more than lives in being and twenty-one years after the creation of the interest it would be void.21 This, however, was not an application of the Rule against Perpetuities. It was the application of a special rule to control the creation of restraints on alienation which were in general valid. 18 Johnson v. Preston, 226 111. 164; Kolb v. Landes, 277 111. 440; 447; Dwyer v. Cahill, 228 111. 617; Moroney v. Haas, 277 111. 467. Quinlan v- Wiekman, 233 111. 39; 20 See especially , Mettler v., War- Mettler ■». "Warner, 243 111. 600; ner, 243 111. 600; Comstoek v. Bed- Branson V. BaUey, 246 111. 490; mond, 252 111. 522; Dime Savings Comstoek v. Bedmond, 252 111. 522; Co. v. Watson, 254 111. 419; Moroney Dime Savings Co. v. Watson, 254 v. Haas, 277 111. 467. 111. 419; Anderson v. Williams, 262 , 21 /» re Bidley, 11 Ch. Div. 645 in. 308; Wood v. Wood, 276 111. (1879). Kales Fur. Int.^48 753 § 658] FUTURE INTERESTS [CH. XXVI With the advent in this country of the doctrine of Claflin V. Claflin,^"^ which permitted trusts of absolute and indefeasible equitable interests to be made indestrufetible for some period beyond the minority of the beneficiary ^^ the question at once arose, for what period might the trust be made indestructible. Clearly a trust to last "forever" was not to be permitted j^^ nor was one which was to continue "as long as the trustees saw fit, "2^ or for an indefinite period.^" So if the trust was required to continue during the lives of persons unborn at the testator's death,^'' or till a person unborn at the creation of the interests reached twenty -five.^® In these cases the provision for the continuance of the trust was void. Thus, the courts drifted naturally into fixing the limit of time, during which the trusteeship of an absolute and indefeasible interest might be required to continue, at lives in being and twenty-one years after the creation of the interests. They not infrequently called this an application of the Rule against Perpetuities. This was natural in the seventies and eighties.^^ Indeed, it was natural enough until the second edition of Gray's Rule against Per- petuities, which appeared in 1906. There it was pointed out that this was not an application of the Rule against Perpetuities but a new rule required to control the length of time a trustee- ship may be continued.*" When this rule is violated no bene- ficial interests are void. The legal title conveyed to the trustees is not invalidated.^^ Even where no limit is placed upon the 22 149 Mass. 19 (1889). on the ground that it was to last impost, §§738 et seq. too long. It would seem that the 2* Williams v. Herriek, 19 E. I. court incorrectly applied the rule 197 (1895); Bigelow v. Cady, 171 which was recognized, because the 111. 229. child in question was a life in being 25Slade V. Patten, 68 Me. 380 at the testator's death. (1878). 29 siade v. Patten, svi^a; Penn- 88Winsor v. Mills, 157 Mass. 362 sylvania County v. Price, supra; (1892). Winsor v. Mills, supra; Williams 27 Pennsylvania Co. v. Price, 7 v. Herriek, supra. Phila.- (Pa.) 465 (1870). a" Gray's Eule against Perpetui- 28 Sadler v. Pratt, 5 Sim. 632 ties, 2nd and 3vd ed., §§ 121f, 121g, (1833). . 121h, 121i. In In re Shalleross's Estate, 200 si Pulitzer v. Livingston, 89 Me. Pa. 122 (1901), a provision that a 359 (1896), overruling on this point trust should continue till a child Slade v. Patten, supra. reached twenty-five was held void 754 CH. XXVI] RULE AGAINST PERPETUITIES [§ 659 length of time the trusteeship is to last, yet if each beneficiary has power to terminate the trust as to his share at any time, the rule controling the length of time a trusteeship may be required to continue is not violategl.^^ When, however, as in the usual real estate or stock trust, the trusteeship is to last indefinitely or for the life of a corporation which is longer than twenty-one years, and the beneficial interests are always absolute and indefeasible and the trust cannot be terminated earlier by any individual beneficiary, but only by a vote of a proportion of them, it is necessary that the trust should be limited to lives in being at the creation of the trust and twenty- one years after the death of the last survivor in order to insure, for that period at least, the indestructibility of the trust. The omission of this precaution exposes the continuance of the trust to assault by a single beneficiary.^^ §659. The Illinois Cases: Bigelow v. Cady^* very closely follows the earlier Maine case of Slade v. Patten.^'^ In the former there was a trusteeship for the benefit of the testator's two daughters, one son and the widow. There were gifts over in these words : "In case of death of either of the four above named heirs it shall go (their share) to the heirs of the de- ceased heir, if they have any; if not, it shall be equally divided between my remaining heirs above mentioned, and their heirs forever, share and share alike. If my wife, Mary J. Mascall, dies leaving no heirs of mine, then her share (one-fourth) shall go to my heirs and. their heirs forever, share and share alike." The court, by reference to other clauses, regarded the testator as having expressed the intention that the trusteeship should remain indestructible forever. Whether this is correct or not is immaterial in determining the principle upon which the court proceeded. The effect of the gift over was to reduce the gift to the two daughters and the son to a life estate, because the gift over is on no other contingency except their death.^^ Hence 32 Pulitzer v. Livingston, supra. conscious that a great many such 33 The holding to tie contrary in trusts had been made without any Howe V. Morse, 174 Mass. 491 provisions limiting the time they (1899), may perhaps be set down were to continue. to the fact that it arose in the 3*171 111. 229. jurisdiction of the so-called Massa- ss 68 Me. 380. chusetts or Boston Real Estate so Ante, § 162. Trust and the court was no doubt 755 § 659] FUTURE INTERESTS [Ch. XXVI there was an equitable interest in the two daughters and the son for life and then to their heirs, .which by the rule in SheUey's case would give them the fee.^^ Thus the same situation is present as was before the Maine court in Slade v. Patten — a trusteeship to last forever in favor of adults who took an ab- solute and indefeasible fee. As in Slade v. Patten our court held the provision for the trusteeship void, insisting that it violated the Rule against Perpetuities. Our court also, as in Slade V. Patten, went a step further and declared that no title passed by the will to the trustees ; ^® that there was an intestacy and that the legal heirs, who were the two daughters and the soil, should have partition. The holding that no title passed to the trustees was, it is believed, strictly erroneous. But no harm was done because the beneficiaries were entitled in any event to have the trusteeship terminated at once. In holding the attempt to create a trust of an absolute and indefeasible interest, which should last forever, void, the court was entirely correct. In Mart v. Seymour ^^ the grantee who had received his title from the trustees was attempting to redeem from a sale on ex- ecution. One of his contentions was that the sheriff's deed was void because the deed of trust under which the trustee purported to act was a perpetuity and Void, so that no legal title passed. The court, however,, held that the trustees did have title in fee and that title passed to the grantee. There was no provision for any indestructible trust. The court re- garded the trusteeship as a mere real estate trust for handling certain subdivided lands for sale and that the trusteeship was to last not longer than a reasonable time,' which would neces- sarily be less than twenty-one years. The property was to be immediately divided and immediately sold. For aught that appears there was no impediment to any cestui demanding the termination of the trusteeship as to his interest at once. In Mettler v. Warner *° the trustees were directed to con- tinue the trusteeship during a term commencing at the testator's death and ending fifteen years after the first day of the next ^T Ante, % 412. 89 147 m. 598. 38 Lawrence v. Smith, 163 111. 40 243 111. 600, 5 111. Law Ee*. 149, contains dictvm to the same 251. effect. 756 CH. XXVI] RULE AGAINST PERPETUITIES [§659 March after the probate pf the will. The beneficial interests created were held to be valid. The trusteeship itself was valid. So far as the invalidity of the provision for the continuance of the trusteeship was concerned no question arose and, there- fore, was not passed upon. In Armstrong v. Barher*^ the trusteeship was to continue for various periods from and after the probate of the will. Again it was held that the beneficial interests were valid and that the trusteeship itself was valid. Then the court pointed out that if the provision requiring the trusteeship to last a given length of time after the probate of the will was void, it was not by reason of an application of the Rule against Perpetuities, but by reason of the application of another and different rule re- lating to the length of time a trusteeship might be made in- destructible. In Wagner v. Wagner *^ the trust in question was to last as long as the trustee saw fit, but no point was made that for that reason the trusteeship could be terminated at any time by one having an absolute and indefeasible interest. In Guerin v. Guerin^^ a direction that the beneficial interest shall always remain in trust was held to mean ' ' remain in trust during the beneficiary's life," and, therefore, was not void. In O'Hare v. Johnston** it was apparently conceded that the provision requiring a trust to continue for thirty years from the testator 's death might be void, but as the beneficial interests were all valid and no beneficiary with an absolute indefeasible interest was claiming any right to terminate the trust, no que's- tion was raised as to the invalidity of the provision for the continuance of the trust. In Hophinson i). Swaim *^ the provisions f oi-' a trusteeship and restraints on alienation created by the exercise of a special testamentary power were not, when referred to the will creating . the power, to continue for too long a period from the donor's death. Hence they were valid so far as the special rule con- cerning the length of time they were permitted to last was concerned. « 239 lU. 389. > " 273 lU. 458. *2 244 lU. 101. , « 284 111. 11. *S270 111. 239. 757 § 660] FUTURE INTERESTS [CH. XXVI §660. Trusts for the perpetual care of a cemetery lot: In the absence of a statute expressly permitting it,** a trust for the perpetual care of the testator's cemetery lot is held void.*'^ This result was obtained by our Supreme Court in Mason v. Bloomington Library Assns.*^ It may be assumed that any trust for a similar purpose, which is expressly required to, or which pursuant to the terms of the attempted trust, may last longer than lives in being and twenty-one years from the testator's death will be void in toto. It is usually assumed that the in- validity of such trusts rests upon an application of the Rul^ against Perpetuities.*^ It is submitted that Mr. Gray is entirely correct in denying that the Rule against Perpetuities has any application.^* That rule makes void future interests which may vest at too remote a time, but in the case put there is no future interest at all. Whatever interest exists is a present interest. The vice in the attempted trust is that it is an effort to create a trusteeship which must, or which may, according to the terms of the gift, last or remain indestructible for longer than lives in being and twenty^one years from the testator's death. An expressed intent to create such an indestructible trust, if valid in aiiy case, is void if the attempt is made to cause it to la^t for too long a time.^i When there is a cestui que trust, however, the expressed intent that the trusteeship shall be kept up for too long a time is merely unenforceable by the trustee. It is left to any cestui who is entitled to an absolute indefeasible equitable' interest to terminate the trusteeship at his pleasure. But where there is no cestui to terminate the trust, as in the case of a trust for the care of a cemetery lot, the so-called trusteeship is all there is, and hence the courts would seem to have no alternative but to hold the whole trust void from the beginning. Any other course would leave the trustee free to carry out the trust which the law forbade in a way in which the law forbade. The prin- ciple announced by Gray ^^ jg the one really applicable. This 18 Iglehart v. Iglebart, 204 U. S. Rule against Perpetuities, 2nd and 478; Bhode Island Hospital Co. v. Srd ed., § 899. Town Council of Warwick, 29 R. I. so Rule against Perpetuities, 2nd 393. and 3rd ed., § 898. *' See cases cited in Ames ' Cases 5i Armstrong v. Barker, 239 111. on Trusts, 2nd ed. 201, note 1. 381, ante, § 659. Gray's Bule *8 237 111. 442. See also Burke against Perpetuities, 2nd ed., § 121i. V. Burke, 259 HI. 262, 269-271. 62 Bule against Peqottuities, 2nd «9 See cases referred to in Gray '3 and 3rd ed., § 121i. 758 ' / Ch. XXVI] RULE AGAINST PEKPETUITIBS [§661 the learned author seems to have overlooked, because he supports the holding that the trust for the perpetual care of a cemetery lot is void solely upon the ground that there is no cestui at all. "The vice," he feays, "in siich devises is not that the interests of the cestuis que trust are too remote,- but that there are no cestuis que trust at all. ' ' ^^ This requires him to say that all the trusts for the care of cemetery lots, or like objects, where there is no cestui que tru,st, but which are limited to last for not to exceed lives in being and twenty-one years from the testator's death, are void also, but here he runs contrary to the authori- ties, such as they are.^* It seems difficult also to give a satis- factory reason for holding a trust without a cestui wholly void for that reason. The trustee has the legal title. Equity raises a constructive trust for the settlor or testator's heirs or next of kin or residuary legatee, if the trustee refuses to perform the acts specified. But why should it interfere, until the trustee does so refuse? What rule of public policy is infringed by the car- rying out of the objects specified by the testator 1 It is believed that none has ever been suggested. Why, then, should the trustee not be permitted to do what the testator directs? This, it is believed, is substantially the view of Professor Ames.^° It is submitted that it is sound and that the authorities relied upon by him should be followed. § 661. Effect on other provisions of holding void a require- ment that a trust should remain indestructible for too long a time : Clearly only the postponement should be held void.- It was urgeS in O'Hare v. Johnston ^^ that such a postponement was introduced for the protection of the beneficiaries, so that if void, the entire scheme of the testator would be destroyed and therefore the beneficial interests also must fail. This, however, the court denied. In Slade v. Patten,^'' however,, a valid gift over was discarded because the whole trust was regarded as void. The same steps precisely were taken under almost identical cir- 53 Id., § 898. ' ' The Failure of the ' Tilden 5 be formed within a reasonable time and if not that the gift to charity will be carried out cy pres.^^ 625, 643; 44 111. App. 497; Andrews Trust for charity "or other pur- V. Andrews, 110 111, 223; Heuser v. poses" void for uncertainty: Tay- Harris, 42 111. 425; Hunt v. Fow- lor v. Keep, 2 111. App. 368. ler, 121 lU. 269; Traiton v. Black, 85 Heuser v. Harris, 42 111. 425; 187 111. 36; Garrison v. Little, 75 Andrews v. Andrews, 110 111. 223; 111. App. 402; Morgan v. Grand Abend v. Endowment Fund, 74 111. Prairie Seminary, 70 111. App. 575 Taylor v. Keep, 2 111. App. 368 Gilman v. Hamilton, 16 111. 225 Trustees v. Petefish, 181 111. 255 App. 654; Garrison v. Little, 75 111. App. 402. 86 Ante, § 656. Note that in Kirkland v. Cox, 94 111. 400, 416, Abend v. Endowment Fund, 74 111. where there was a gift over to App; 654. charity, if the first taker died with- Charitable bequests valid al- out issue the court declined to pass thougih the cestui is indefinite : upon whether the gift over was Heuser v. Harris, 42 111. 425 ; An- void for remoteness, drews i;. Andrews, 110 lU. 223 ; »'' Ingraham v. Ingraham, 169 Mills '«. Newberry, 112 111. 123 111. 432, 452 (quoting Gray's Eule (condition precedent that a selec- against Perpetuities, § 607). tion be made) ; Trafton v. Black, ss This must be the ground upon 187 111. 36; Morgan v. Grand Prai- which Morgan v. Grand Prairie rje Seminary, 70 111. App. 575. Seminary, 70 111. App. 575, is to 798 Ch. XXVI] RULE AGAINST PERPETUITIES [§ 699 Crerar v. Williams, ^^ is a case where the charitable gift was a present one to a non-existing corporation or association. It was held valid. The testator directed a corporation to be formed. The formation of such a corporation was impossible under the Illinois laws as they stood at the time of the testator's death. Nevertheless, the court upheld the gift and said it should be enforced cy pres. Ingraham v. Ingraham,^^ sustained the va- lidity of a gift to a hospital to be founded in the future, on the ground that it was an inimediate gift to charity.^^ In Franklin V. Hastings ®2 the testator provided : ' ' For the purpose of aid- ing in the establishment and support of a public library in the village of Lexington, Illinois, and in honor of my deceased parents, I direct, empower and authorize my executor to hol(^ and apply the sum of ten thousand ($10,000) dollars as follows: Upon the organization of a regularly incorporated library asso- ciation by the people of Lexington, Illinois^ the name of which corporation shall include in it and as a part of it the name of Smith, and that upon provision being made by the people of Lexington, Illinois, and such other persons as may desire, for a fund for the use of said library association sufficient, together with the fund of $10,000 aforesaid, to properly establish and maintain said library, the sufficiency of whiph fund shall be in the discretion of my said executor but which need not exceed the sum of five thousand ($5,000) dollars, then and in that case my said executor shall pay to the proper officers of said library association the said sum of $10,000." This was held to be an immediate and unconditional gift to charity. TITLE XI. accumulations. Topic 1. Apart prom the Statute on Accumulations. § 699. Accumulations other than for charity: When the future interest is executory and there is a provision for aecu- be supported. The charitable be- 425, and Andrews v. Andrews, 110 quest there was held valid although 111. 223, the gift was an immcdi- the gift was on eondition that the ate one to charity. There was sim- city donated a lot. ply a failure to name trustees to 89 145 111. 625. administer the trust. 90 169 111. 432, 454-459. 92 253 111. 46, 48-49. 91 In Heuser v. Harris-, 42 111. 799 § 700] FUTURE INTERESTS [Ch. XXVI mulation in the meantime, such accumulation may be provided for up to the most remote time at which the future interest can vest and still be valid.^^ If the executory interest does not vest within the time prescribed by the Rule against Perpetuities and the accumulation is to continue up to the time of the vesting of the future interest, then the future interest must be void, and the provision for accumulation, if it is part of the testator's scheme, in connection with the gift which is. too remote, will also fail. Suppose now, that the interest in the legatee is vested at once with a postponed enjoyment clause, valid under the doc- trine of Ctaflin v. Clwflin,^* or upon any other ground, with a provision for accumulation in the meantime. The accumulation, it is submitted, may continue up to the most remote time that the postponed enjoyment can last. If it is to continue beyond that time, then the whole postponement is void and the trust for' accumulation is bad This, however, it should be observed, is not an application of the Rule against Perpetuities, but of the rule which limits the length of time that a postponed enjoyment clause may be operative.^^ § 700. Accumulation for charitable purposes : Suppose there is an unconditional gift to charity with a direction for accumulation which may last longer than a life or lives in being ■ and twenty-one years. It is not perceived upon what ground the clause for accumulation can be void for remoteness. If void at all, it must be because it is an improper restraint on alienation. The corporation, association or trustees directing the charity might disregard it and the attorney-general would not be allowed to enforce it for the same reason that a postponed enjoyment upon the absolute equitable interest of an individual, which lasts for too long a time, might be disregarded by the cestui and by the trustees.®* "Whether such a provision for ac- cumulation can be so diregarded, is, perhaps, not yet settled in this state. Assuming, however, that the direction for accumulation may be disregarded, it is clear that the doing so cannot be of any ssRhoads v. Bhoads, 43 lU. 239; 95 Post, §737; ante, §§658 et Hale V. Hale, 125 111. 399; Ingra- seq. ham V. Ingraham, 169 111. 432, 450. ae id, 9* Post, § 732. 800 CH. XXVI] RULE AGAINST PERPETUITIES [§ 702 advantage to the heirs at law of the testator, for as against them, the whole fund is at once payable to charity.^'' Topic 2. The Statute on Accumulations. § 701. The ThelluBson Act re-enacted in Illinois: The Illi- nois Act of 1907 ^^ relating to accumulations is substantially a copy of the Thellusson Act.^ The English cases construing the English Act decided prior to 1907 are, therefore, authority for the construction of the Illinois Act.i It would seem that no. question of the invalidity of a,ny clause for accumulation can arise till at least twenty-one years after the Act was passed, because the question of what shall be done with the income, which cannot be accumulated, can only arise after the accumu- lation which is permitted by the statute has been effected.* Our Supreme Court has twice indicated 'that under the terms of the statute the accumulations, if they exceed what the statute per- mits, are only void as to the excess.* The invalidity of a clause for accumulations can hardly affect the validity of other clauses.* TITLE XII. CONSTEUOTION. § 702. Attitude of the court in handling questions of' con- struction which must be determined before the Rule is applied: Mr. Gray thus summed up the attitude announced by the Eng- lish judges : 5 " The Rule against Perpetuities is not a rule of construction, but a peremptory command of law. It is not, like a rule of construction, a test, more or less artificial, to determine intention. Its object is to defeat intention. Therefore, every provision in a will or settlement is to be construed as if the rule " Ingraham v. Ingraham, 169 111. 2 French v. Calkins, 252 111. 243, 432. 254. 88 Laws 1907, p. 1. 3 French v. Calkins, supra; Kolb 90 39 and 40 Geo., Ill, ch. 98 v. Landes, 277 111. 440, 449. (1800). ■'Kolb V. Landes, supra. 1 For an exposition of the Eng- 5 Gray 's Rule against Perpetui- lish cases construing the English ties, § 629. Act, see Gray's Eule against (Per- petuities, §§ 686 et aeq. Kales Fut. Int. — 51 gQl §703] PUTUKB INTERESTS [Ch.. XXVI did not exist, and then to the provision so construed the rule is to be remorselessly applied." Our Supreme Court in Bime Savings and Trust Company v. Watson * approved this attitude and the English eases which, announced it. Mr. Gray, however, says :'' " There is a legitimate use of the Rule against Perpetuities in matters of construction. When the expression which a testator uses is really ambiguous, and is fairly capable of two constructions, one of which would produce a legal result, and the other a result that would be bad for re- moteness, it is a fair presumption that the testator meant to create a legal j^ther than an illegal interest." It should be observed that this presupposes a case where the two possible constructioiis are evenly balanced, and where there is, in con- sequence, an actual ambiguity. It does not mean that where the highest degree of ingenuity can demonstrate that there are two possible constructions the court may adopt that which does not offend the rule. Our Supreme Court has several times de- clared the rule to be that "where a will is susceptible of two constructions, one of which will render it valid and the other void, courts will, if they can do so without doing violence to the intention of the testator, adopt the construction that will render the will valid.^ This probably means what Mr. Gray says. As worded, however, it takes the emphasis away from the idea that the two constructions must be fairly .balanced so that a real ambiguity arises. §703. Modifyinif clauses: The English cases adopted a special rule with regard to modifying clauses. Mr. Gray states it as follows: 8 ""When there is a good absolute gift, and the settlor or testator goes on, in an additional clause, to modify the gift, and, by modifying it, makes it, in part, too remote, the modification is rejected in toto, and the original gift stands. Thus if land is devised to an unborn child in fee, and by a sub- sequent clause of the will the testator directs that the land so devised shall be settled on such child for life, remainder to its children in fee, which remainder is void for remoteness, the, whole modifying clause is disregarded, and the child takes a e 254 111. 419, 427. 429 ; MeCutcheon v. Pullman T. & 7 Gray 's Bule against Perpetui- S. Bank, 251 111. 550, 555. ties, § 633. » Gray's Rule against Perpetui- sHeisen v. Ellis, 247 111. 418, ties, § 423.~ 802 Ch. XXVI] RULE AGAINST PERPETUITIES [§ 704 fee simple." This rule was applied by our Supreme Court in Carpenter v. Hubbard}" There a clause at the beginning of the will fixed a period of distribution which did not violate the rule. A later clause altered the time of distribution so that the rule was violated. It was insisted in argument that of two conflicting clauses in a will, the later one represented the ex- pressed intent and the validity of the entire will must be judged with reference to that expressed intent alone, and hence the ultimate gift was void for remoteness. This the court denied and applying the rule as to modifying clauses, reiecte4 the period of distribution as stated in the latter part of the will, and permitted the intent as expressed in the first part of the will, as to the period of distribution, to stand. TITLE XIII. ESTOPPEL AND ELECTION. § 704. One who has received an interest devised by a will is not precluded from attacking^ the provisions of the same will on the ground that they violate the Rule against Perpetuities: The Rule against Perpetuities is a rule founded upon public policy which individuals cannot waive to the detriment of the public. It is true that it is left to the interest of individuals to vindicate the rule. But the rule itself, is none the less one in which the public is so much interested, 'that the individual is not permitted to estop himself from asserting its application. It seems, therefore, to be the rule that an heir claiming property because a limitation, in violation of the Rule against Perpe- tuities, fails, is not precluded from asserting his fight to it merely, because he has taken benefits under valid provisions of the will." 10 263 111.571. Y.) 193, 204; .Walker v. Taylor, 11 Sehukneeht v. Schultz, 212 111. 15 App. Biv. 452, 457-458; 44, N. 43, 48; Mason v. Bloomjngton Li- Y. Supp. 446; Staples v. Hawes, brary Assn., 237 111. 442; In re 24 Misc. Eep. (N. Y.). 475, 480; Oliver's Settlement, [1905] 1 Ch. In re Durand, 56 Misc., Eep. (N. 191, 198-199; In re Walkerly's Y.) 235, 240. Estate, 108 Cal. 627, 658-659; Fi- The dictum in the opinion of field V. VanWyck, 94 Va. 557, 562; Judge Tuley, set out at length in In re Schmidt's Estate, 15 Mont. Madison v. Larmon, 170 111. 65, 82, 117; Bowers v. Smith, 10 Paige (N. if it be to the contrary, cannot be 803 §705] PUTUKE INTERESTS [CH.' XXVI TITLE XIV. EFFECT OF FAILURE OF SOME LIMITATIONS FOR REMOTENESS ON OTHERS." I Topic 1. Effect on Prior Limitations Not Too Remote When Subse- quent Limitations Fail Foe Remoteness. § 705. General rule as stated by oiir Supreme Court in Barrett v. Barrett: ^^ Whenever some one or more of the limitations of a will are void for remoteness, the important prac- tical question at once arises, how far will the valid limitations also fail. In the recent case of Barrett v. Barrett, ^'^ the court laid down the general rules as follows: "Where several trusts are created by will which are independent of each other and each is complete within itself, some of which are lawful and .others are unlawful, and which may be separated from each other, the illegal trusts may be cut out of the will and the legal ones permitted to stand." On the other hand, "when some of the trusts in the will are legal and some are illegal, if they are so connected together as to constitute an entire scheme for the dis- position of the estate, so that the presumed wishes of the tes- tator would be defeated if one poi'tion were retained and other portions rejected, or if manifest injustice would result from such construction to the beneficiaries or to some of them, then all the trusts must be construed together and all must stand or all must fall. ' ' These general statements do not go very far in determining results in particular eases. The question still re- mains, when are the gifts separable and when are they insep- arable? When is it to be held that the presumed wishes of the testator would be defeated if one portion were retained and othet portions rejected? When does manifest injustice result from regarded as law. The remarks of to the residuary legatee, so that the the learned judge were unnecessary residuary legatee was in the posi- to the decision. The recent ease tion of taking the residue under the in~ this state of Schuknecht v. will and also of increasing his resid- Schultz, 212 111. 43, is directly con- uary gift by urging the invalidity tra to Judge Tuley 's dictwm. The of one of the bequests, decision in Mason v. Bloomington iz Compare ante, §§ 642, 661. Library Assn., 237 111. 442, is also is 255 111. 332, 338. contra, because there the legacy i* Id. Which was void for remoteness, went 804 Ch. XXVI] ' RUDE AGAINST PERPETUITIES [§ 706 a construction which sustains some portions of the will while others are eliminated? It is only when we come actually to classify all results reached that we obtain any insight into the considerations which induce the court to answer these ques- tions one way or the other. § 706. Cases where the court held that the limitations not void for remoteness should be enforced : In Howe v. Hodge i» we have the devise of a residue to trustees to convert and di- vide the principal among all the testator's grandchildren, so as to vest an interest in them at birth, but subjec^t to a postpone- ment of payment of the principal until each arrived at thirty years of age. Then there was a gift over if any grandchild died before that age. The gift over was held void for remoteness, but the original gift to the grandchildren stood. This was in spite of the fact that there was a trusteeship and because the valid gift was the disposal of an absolute interest in the corpus of the estate direct to the grandchildren. This is the controlling feature noted in Barrett v. Barrett}^ In Nevitt v. Woodburn,^'' a devise was made to the testator's son for4ife, with a remainder in fee to his children, with a gift over if he died. childless to the families of the testator's brothers. The gift over was void for remoteness. It was held, however, that this did not invalidate the gift to the grandchildren. The court said that there was no such connection between the limi- tations as required both to stand or fall together and that no injustice was done by permitting the valid part to stand. In Barrett v. Barrett, the following characteristics are noted as controlling the decision: (1) That there was no trusteeship. The estates were legal. (2) The valid portion of the will in- cluded a life estate and a disposition of the fee directly and ab- solutely, the void part being a gift over after such disposition in fee. Hence, with the gift over eliminated, there was a simple life estate with a vested and indefeasible interest in fee in re- mainder. In Chapman v. Cheney, ^^ the trustees appear to have had only a legal estate for the life of the son, upon trust for the son for life, with legal remainders to the, son's children vesting in interest at once (as the court construed the will) , with a post- is 152 III. 252. " 190 111. 283. 16 255 111. 332, 346. i» 191 HI. 574. 805 § 706] FUTURE INTERESTS [Ch. XXVI ponement of payment until the grandchildren reached thirty, and a gift over if any died before reaching that age. The gift to the grandchildren was valid and the gift over, if they died under thirty, was void. The court held, however, that the valid portions of the will should stand and be enforced. The charac- teristics noted in Barrett v. Barrett, for this result were (1) the absence of a trusteeship covering the remainder and gifts over; (2) the fact that the valid parts of the will include a life estate and a disposition of the remainder in fee simple, so that when the ultimate gift over was held void there remained a life estate and a vestesd and indestructible fee in remainder. In Johnson v. Preston,^^ land was (as the court construed the will) devised to trustees to take effect from and after the pro- bate of the will and to continue thereafter for twenty-five years. This was held void for remoteness. The beneficial interests, however, (as the court construed them) were in presenti to J. R. P. and G-. H. P. and after the twenty-five years the land to go to them "or their heirs." This last phrase "or their heirs" seems to have been taken, following Ortmayer v. Elcock,^° as if it indicated merely that the persons named were to take the fee. There was an annuity given of $100 a year for the twenty-five year period or the life of the annuitant. The heirs filed a bill for partition on the theory that the entire will, because of the remote limitation to trustees, failed. The bill was dismissed and this was affirmed by the Supreme Court. It was clear to the court that the gift to the trustees was void for remoteness, but it was denied that the devise to the trustees was so connected with the limitations"^to the beneficiaries that the latter could not be enforced. The annuity was enforced as a charge against the land. From the point of view of what is manifest justice and also the presumed intent of the testator, this result seems proper enough. The trusteeship is the subordinate thing and the bene- ficial interest the main thing. There is no reason, therefore, why the illegality of the former should carry down the latter. In Barrett v. Barrett, however, the court speaking by Mr. Justice Hand, seems to suggest that the will was in effect entirely set aside, the property passing as intestate estate, and that the court did in effect find the trusteeship and beneficial interests so bound up together that when the former failed, the whole failed. The 19 226 111. 447. 20 225 111. 342. 806 Ch. XXVI] RULE AGAINST PERPETUITIES [§ 706 court said: "The entire trust was held void and the estate intestate." We do not so understand the scope of the court's opinion in Johnson v. Preston. , In Quinlan v. Wickman,^'- the trustee took an absolute interest in the trust estate upon trust for the testatrix's child Elizabe'th for life, then to such of her children as reached thirty, with a gift over on two contingencies, (1) if Elizabeth died leaving no children; and (2) if she died leaying children who died be- fore they reached thirty; then over to Nellie absolutely. The gift to the children of Elizabeth at thirty was void ; also the gift over on the contingency that Elizabeth died leaving children and they died under thirty. A bill was filed by the heirs at law for partition on the theory that .the whole will failed. The bill was dismissed. This was affirmed because, while part of the will was void, yet the life estate in Elizabeth was valid subject to a valid gift over if she died without leaving any children, Hence, although the heirs had a vested reversionary trust pend- ing the happening of Elizabeth 's dying leaving children, yet since it was uncertain ever to vest in possession, they could not have partition. Here, then, the valid portions of the will were sus- tained (1) although there was a trusteeship covering the in- valid as well as the valid gifts; (2) although one valid gift was in the same clause and a part of the same sentence with the void gift over; and (3) although the sustaining of the valid portion resulted in Elizabeth having a life estate and also a share as heir, if the event of her dying leaving no children did not hap- pen. It very likely appeared to the pourt that the will indicated a general purpose on the part of the testator to prefer Eliza- beth and Nellie to the rest of his heirs at law and that he^ there- fore, made these special provisions for them by his will. To hold them all invalid would be to defeat that purpose complete- ly and divide the property set aside for Elizabeth and Nellie between the heirs at law. Hence it probably seemed fair and reasonable to the court to sustain th.e special gifts for, Eliza- beth and Nellie as far as possible. This the court was able to do by giving Elizabeth her life estate and sustaining the gift over to Nellie in the one contingency of Elizabeth dying with- out leaving children. On the other hand, if Elizabeth died leaving children, the gift over would not take effect; Elizabeth 21233 111. 39. 807 § 707] FUTURE INTERESTS [Ch. XXVI 1 would inherit part of the fee and be able to dispose of it to her children. In Moroney v. Haas ^^ the situation was very similar to that in the last case. There was created a trusteeship for Sadie (one of the testatrix's heirs at law) for life, then to her children or issue of a deceased child, with a gift over "in case no such children or issue of deceased children shall survive" the life tenant, "or in case no surviving child shall attain the age of twenty-five years and all shall die without issue," to James iPill (another one of several heirs of the testatrix). The gift over on the first contingency was valid ; on the latter void ; yet dply the invalid portion was rejected. * § 707. 'Cases where the valid portions of the will failed along with the invalid : In Lawrence v. Smith ^s the testator gave all his property to trustees to pay annuities to two sons and a daughter and to pay to each of three daughters,. A, B and C, six hundred dollars annually during their lives, and upon their death to pay three hundred -dollars to each of their children till such children reached twenty-five, and then to pay such children each $10,000. The gift of $10,000 was valid- to each child born during the life of the testator. After the pay- ment of all of the above sums the testator directed the principal of his estate to be paid to his grandchildren then living. This last was void for remoteness. It was decided that all the above mentioned gifts failed because the ultimate limitation over was void for remoteness. This was affirmed. Here there was a trusteeship covering all the gifts. Furthermore, the gift of $10,000 to each grandchild was contingent on such grandchild reaching twenty-five. Hence with the ultimate gift over elimi- nated there was no absolute and direct gift of the corpus of the estate to any beneficiary. There was left merely the annuities, the payment of sums to the daughters for life and to the grand- children till each reached twenty-five. This situation presents some distinction from that presented in Howe v. Hodge, '^^ Nevitt V. Woodburn,^^ and Chapman v. Cheney. '^^ In spite of this dis- tinction, however, the gifts can hardly be said to be inseparable so far as the language used is concerned. The result seems to 22 277 111. 467. 25 190 111. 283. 23 163 111. 149. 26 191 111. 574. 2* 152 111. 252. 808 Ch. XXVI] EULE aculinst perpetuities [§ 707 ► be based rather upon the ground of what is manifestly just under all the circumstances, or is a guess as to what the tes- tator would have desired had he known that the ultimate gift ov^r was void, or perhaps both. On the question of the injustice of sustaining the valid limitations the court probably observed that to sustain the annuities and gift^ to daughters and their children till each reached twenty -five, and the payment of $10,000 • to each grandchild living at the testator's death who reached twenty-five, would in fact tie up the distribution of the entire estate. The children, as the testator's heirs at law, would be ultimately entitled, subject to deductions for indefinite amounts, which would prevent the distribution as long as they lived. Such a situation no doubt appealed to the court as unjust to the children. It no doubt' also appealed to the court that the testator, under the circumstances, would have desired his chil- dren to receive the estate at once rather than that they should actually have an equitable ownership in it without being able to obtain a distribution. As the testator's children, who were his heirs at law, and their families were all treated substantially alike, there was absent the siftiation presented in Qwmlan v. Wicjcman,^'' where the testator was specially preferring two of his heirs over the remainder. According to Gray ^® our Supreme Court made a very poor guess as to what the testator would have intended had he known' the ultimate limitation was void. , If, however, guessing as to what the testator would have in- tended is permissible, it is 6n the whole futile to complain that the court has not made as good a guess as it ought to. In Eldred v. Meek,^^ there were, by clauses 4, 5 and 6, gifts of separate parcels to named grandchildren, contingent upon their reaching twenty-five. These were valid. Then by clause 10 there was a gift over if the grandchildren died under that age, to such children of them as reached twenty-five. This was void. It was held that bepause the gift over in clause 10 failed, the separate contingent gifts in clauses 4, 5 and 6 failed also. The situation presented here was like that in Lawrence v. Smith,^" to this extent, that there was a trusteeship covering all the gifts and the gifts which were valid were contingent "233 III. 39; ante, §706. 29 188 111. 26. 28 Gray's Eule against Perpetui- 30 163 111. 149. ties, 2na and 3rd ed., § 249e. 809 §707] FUTURE INTERESTS [CH. XXVI upon the devisees reaching twenty-five, so that with the gifts over eliminated there was no absolute present gift to any de- visee. Here, however, the testatrix's only heir at law seems to have been her child. The gifts to the grandchildren were gifts to the children of the testatrix's only child. Hence if the gift over were held void and the valid portions of the will 'sustained, the fee would not go to the grandchildren but to the testatrix's only child, subject to be divested if the grand- children reached the age of twenty-five. If the gifts to the grandchildren are entirely eliminated, then the daughter would obtain the whole property as intestate estate. As the daughter was given one-fourth of the personal property absolutely, there would seem to be a clear purpose on the part of the testatrix to prefer her grandchildrepi by giving them specific portions of, her estate when they reached twenty-five. Following the decision of the court in Quintan v. Wickman,^^ it might have been expected that the purpose of the testatrix would be carried out as far as possible by permitting the specific gifts to the grand- children to stand. It is difficult to perceive any ground in the supposed intent of the testator, or as a matter of justice to the daughter, for holding void the valid gifts to the testatrix's grandchildren who reached twenty-five. In Owsley v. Harrison,^'-^ one share of the estate was to be kept together for two years after the testator's death, and one- half of such share was devised to the testator's children for life, and on the death of any one of them within the two years leaving issue, such surviving issue should take a life estate with a remainder to the heirs of their bodies. The remainder to the hieirs of the body was void for remoteness. The court held that the life estates failed along with the gift over and there was an intestacy. Here there appears to have been no trustee- ship. But if the ultimate gift over only, was held invalid the children would have taken life estates, with a succeeding life estate to their children and an ultimate fee in the children of the testator themselves as heii?s at law. Thus, the children of the testator would have had the fee subject to a possible life estate after their death. This would have prevented distribu- tion at once and caused the inconvenience in the matter of dis- position which such contingent estates make. This inconvenience 31 233 111. 39. 32 190 III. ^35. 810 Ch. XXVI] RUL.E AGAINST PBEPETUITIKS [§707 was avoided by the elimination of the second life estate, thus giving the children of the testator the fee at once. In Pitzel V. Schneider, ^^ there was a trust for the widow for life of an annuity and then a provision that the income should go to two children of the testator for their lives. Then there was a gift over to all the testator's grandchildren when they reached twenty-five. It was held that the last was clearly void and that this resulted in the whole {rust failing and an intestacy. The language of the court on this point is very brief. It should be noted that the wife had died before the testator, so that there was no question about the validity of her annuity. The two children who received the income at the widow's death were the testator's only heirs at law. Hence when the ulti- mate gift failed they took as heirs at law the remainder, and having an equitable life estate also, they might well say that they had the entire equitable interest and the trusts should be wound up. The remarks of the court might be regarded as applicable to this precise situation. In Eeid v. Voorhees,^* there was no trusteeship. The third clause disposed of the rents of land to nephews and nieces for thirty years. If during that time any died without an heir, his or her share was to go to the living heirs. By the fifth clause all the property devised by the third clause went, after thirty years, to the nephews and nieces or their heirs. The last was void for remoteness. This was held to carry down with it the third clause, because, otherwise, a mere gift of rents for thirty years would be left with no further disposition of the property. Then the question arose as to the second clause. That gave the residue of personal property to two nephews. There was no verbal connection between the gift by the second clause and that by the third clause. The properties given by each clause were distinct. Yet the court held that the second clause failed , with the third and fifth. The second clause disposes of personal property to two nephews. The third clause disposes of real estate to other and different nephews and nieces. There was no trusteeship. Why should the failure of the gift in the third clause carry with it the gift in the second clause? The only : explanation seems to be that by holding the second clause in- valid the court was able to distribute the testator's property 33 216 111. 87, 98. 34 216 111. 236. 811 § 707] FUTURE INTERESTS [Ch. XXVI to the two nephews named in the second clause and the nephews and nieces named in the third clause in the proportions which the court believed the testator intended. The personal property devised by the second clause and the real estate devised by the third were practically equal in value. If there was an in- testacy with respect to the property named in both clauses then the two nephews named in the second would take one-half the personalty and one-half the real estate, which was about equal to the value of all the personalty named in the second clause. The other nephews and nieces would ta^e one-half the personalty and one-half the realty, which was about equal in value to the real estate named in the third clause. This seemed to the court a practically equitable result. On the bther hand, if the third clause were held void and the second sustained, the two nephews named in the second clause would" receive one-half the real estate attempted to be devised by the third clause in addition to what they received by the second. This seemed to the court manifest injustice. They probably said to themselves that the testator would not have so intended had he known that the gift in clause three had failed. Dime Savings Co. v. Watspn,^° and Ba/rrett v. Barrett,^^ present a situation very like Owsley v. , Harrison., except that the interests were all equitable. In Dime Savings Co. v. Wai- son the testator gave nine-tenths of the income of the estate held by trustees to nephews and nieces and the lineal descend- ants of any deceased nephew or niece until twenty years after the death of the last surviving nephew and niece, when there was to be a division among th? testator's grandnephews and nieces. The ultimate gift over was void. If the rest had stood it would have left the nephews and nieces who were the tes- tator's heirs at law to take the income for life, with a gift of the income to their lineal descendants for a further period, with the ultimate interest in the nephews and nieces as heirs at law. Thus, the nephews and nieces would fail in securing an actual distribution because of the v Howe V. Hodge, supra. Eq. 345, 363. *iBeid ■». Voorheea, 216 111. 236 813 § 709] FUTURE INTERESTS [Ch. XXVI heirs at law will take at once as upon an intestacy. ^^ (b) On the other hand, if the instrument shows a plan to prefer some of the heirs to others by giving the life estate and the contingent interests to particular heirs and excluding other heirs entirely, then the limitations which are valid wiU stand in order to carry out such preference as far as possible.*^ (c) In Eldred v. Meek ** no life estate preceded the contingent gifts and the testator seemed to have a plan to prefer the children of his daughter to the daughter herself in respect to the gift of cer- tain pieces of property devised to the daughter's children if they reached twenty-five. It would seem that the views acted upon by the court *^ might well have been applied in this case to sustain the specific gifts of real estate to the children of the testator's daughter which were valid, holding only invalid the gift over which was void for remoteness. 4. Several cases rest upon situations so special in character that they hardly warrant any generalization with respect to what facts will cause the valid limitations to fail along with the invalid.*® § 709. Gray's statement in his Rule against Perpetuities *'' not followed: Gray states what he considers to be the proper rule thus: "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." He points to Eldred v. Meek*^ Lawrence v. Smith *^ and Owsley v. Har- rison s" as in opposition to this statement and insists upon the impropriety of the results therein reached. It must now be plain from the entire line of cases on this subject in this State that Gray's view, as above expressed, has not been followed by our Supreme Court.' ^ It is equally apparent that our Su- preme Court is not really guided in its conclusion by any actual t *2 l)awrence v. Smith, 163 111. 149. <7 § 247. *3 Quinlan v. "Wickman, 233 111. *» 183 111. 26. 39; MOroney v. Haas, 277 111. 467. *» 163 111. 149. *i 183 111. 26. so 190 111. 235. *5 Id. 51 This may be said in spite of *« Johnson v. Preston, 226 lU. the fact that the court has recently 447; Reid v. Voorhees, 216 111. 236 quoted Grayjs statement with ap- (as to the invalidity of the second proval in Moroney v. Haas, 277 IH. clause). .467, 472. git CH. XXVI] KULE AGAINST PERPETUITIES [§710 consideration of whether the limitations, according to the lan- guage used, are separable and independent or dependent and part of a single scheme which must stand or fall together as a whole. What it really does is to obtain a result which it regards as manifestly just under all the circumstances. As a part of the inquiry regarding what is manifest justice the court undertakes to determine what the testator would have desired with re- spect to the valid dispositions if he had known that part of his will must fail, and were given no time within which to make a new one. In short, where part of the limitations fail for remoteness, the court exercises a discretion in determining whether it is advisable that any other part of the will shall also fail. The appeal in the present state of the decisions must be to the discretion of the court. Topic 2. Effect on Subsequent Limitations When Peior Lijiitations ABB Void for Remoteness. § 710. The rule of Monypenny v. Bering : ^^ The English cases have countenanced a rule "that a vested limitation, or a limitation for_life, to a living person is void if it follows an interest which is too remote." °^ The principal English case iii support of such a rule is Monypenny v. Bering. The same rule has been more loosely expressed as follows: "Where a devise is void for remoteness, all limitations ulterior to or ex- pectant on such remote devise are also void." This rule has been referred to with approval by our Supreme Court, and Monypenny v. Bering cited.^* Gray strongly disapproves of the doctrine, which he says,'^ "introduces an arbitrary element into the Rule against Perpetuities, and defeats the intentions of testators without any pretext of public policy, under the false pretence of supporting them. ' ' 52 2 De G. M. & G. 145. ss Gray's Rule against Perpetui- 5S Gray 's Rule against Perpetui- ties, § 257. ties, §§ 251-257. 5*Quinlan v. Wickman, 233 111. 39, 46, 47. 815 BOOK V. ILLEGAL CONDITIONS AND RESTRAINTS ON ALIENATION. CHAPTER XXVII. FORFEITURE AND RESTRAINTS ON ALIENATION. § 711. Forfeiture on alienation as distinguished from re- straints on alienation: The cases of forfeiture on alienation deal with those limitations where it is provided that upon alien- ation the estate sl^all come to an end or that a gift over shall take effect. The operation of the provision is to deprive the person holding the estate subject to it and also his alienee. A restraint on alienation, on the other hand, simply endeavors to make an attempted alienation inoperative, leaving the title still in the person holding subject to the restraint. Its opera- tion is merely to deprive the alienee. TITLE I. rOEFEITURE ON ALIENATION.i Topic 1. Op a Fee Simple or an Absolute Interest in Personalty. § 712. Where the fee simple or absolute interest is in pos- session: The doctrine is recognized in this state that a pro- vision of forfeiture upon the alienation of the fee simple, or an absolute interest in personalty, is in general void.^ In Davis 1 Attitude o£ the court in rlgard 2 Henderson v. HTarness, lupra, to the eonstruetion of alauses of semble; Davis v. Hutchinson, 282 forfeiture:. Henderson v. Harness, 111. 523; Jenne I'v. Jenne, 271 111. 176 111. 302. In Newcomb "v. Mas- 526, 537. In Voris v. Eenshaw, 49 ters, 287 111. 26, the question as to 111. 425, the court seems to have whether a breach had occurred and assumed that the clause of f orf ei- whether notice must- be given were ture of the fee upon alienation, ex- eonsidered. cept by lease during a certain num- Kales Fut. Int —52 ». ^1' § 713] ILLEGAL CONDITIONS AND RESTRAINTS [Ch. XXVII V. Hutchinson ^ the court quoted with approval Gray 's state- ment that since the invalidity of the provision for forfeiture- on alienation depended upon public policy "the technical form of putting an end to a fee simple upon alienation must be immaterial. ' ' Littleton said : * " But if the condition be such, that the feoffee phall not alien to such a one, naming his name, or to any of his heirs, or of the issues of such one, etc., or the like, which condi- tions do not take away all power of alienation from the feoffee, etc., then such condition is good." The inference from this is that if the provision for forfeiture was operative if the one taking the fee aliened to anyone except a person named, or a small class of persons, it would be void. It was so held in Att- water v. Attwater.^ In Doe v. Pearson " and in In re Macleay ^ such a provision of forfeiture was sustained. Our Supreme Court has recently gone to an opposite extreme and denied the statement of Littleton by holding void a gift over if any devisee aliened to a named person or his wife.® § 713. Forfeiture upon alienation of future interests : A contingent remainder being inalienable, a provision for the for- feiture of the chance ever to have it vest if alienation is attempted while the interest remains future, cannot be void.® Where tlie remainder is vested in interest and indefeasible a provision for forfeiture upon alienation while the interest remains a future one has been sustained by the English cases ^° and denied validity ber of years, was valid merely for the remainder was indefeasible when the sake of argument, since it went the clause of forfeiture was at- on to hold that it had not been vio- tempted to be applied. Gray, Be- lated, straints on Alienation, 2nd ed., 3 282 111. 523, 528. § 51a. In re Goulder, L. R. [1905] 4 §361. 2 Ch. 100; Kiallmark v. Kiallmark, = 18 Beav. 330 (1853). 26 L. J. Ch. 1; Kearsley v. Wood- 6 6 East, 173 (1805). cock, 3 Hare, 185. But Powell v. TL. E. 20 Eq. 186 (1875). Boggis, 35 Beav. 535, seems contra. 8 Jenne v. Jenne, 271 111. 526. The scope of Gazzard v. Jobbins, 14 9 Larges' Case, 2 Leon. 82 (1588). N. S. W. E. Eq. 28 (1893) is uncer- 10 In re Porter, L. R. [1892] 3 tain because the court, after de- Ch. 481. Here the remainder was termining that the forfeiture clause subject to be divested if the re- applied whether the remainderman mainderman died under twenty-one, was out of possession or in posses- but Mr. Gray assumes the remainder- sion, may have held that it could not man had reached twenty-one, so that separate the clause of forfeiture but 818 Ch. XXVII] fokpeiture and restraints on alienation [§ 714 in Michigan.ii The reason for this difference in result is that the Michigan court emphasized the fact that a vested remainder was alienable at law like a fee in possession. , Hence a provision of forfeiture on alienation wa^s void. The English judges, on the other hand, may have remembered that in equity an at- tempted alienation of a vested and indefeasible remainder or reversion would be set aside unless a proper consideration was paid.^^ In short, there was a public policy against allowing the unrestricted alienation of such interests. Hence, a provision of forfeiture on attempted alienation was not so far contrary to public policy as to be void. Topic 2. Of Estates for Life or for Years. § 714. Forfeiture upon the alienation of a life estate : Waldo V. Cumminffs,^^ seems to have assumed that a provision in a gift of a life estate, providing for forfeiture upon aliena- tion, is valid. The gift in that case was of a legal life estate in persona] property upon the condition that the life tenant should have no power to sell or encumber the fund, and that it should not be subject to sale on legal process or for the life tenant's debts; and that if this provision was violated the sub- ject matter of the gift should pass to the next person in re- mainder. In Henderson v. Harness,^* however, the court seems to have intended to hold that such a provision of forfeiture, attached to a life estate, was invalid.^^ In that case a legal life estate was created by will in M. H., with the proviso that "he shall not sell nor in any way encumber said realty during his lifetime. * * * In case my son, M. H., during his life- time * * * shall sell or in any way encumber the same, that his life estate therein shall terminate," and the remainder-men may enter at once. M. H.'s interest was sold upon execution. must regard it as all bad, since it i^ 45 m. 421. would b? void so far as it was in- i« 176 111. 302. See also Hunt v. tended to operate after the re- Hawes, 181 111. 343; Streit v. Fay, mainder vested in possession. 230 111. 319; Newcomb v. Masters, 11 Mandlebaum v. McDonell, 29 287 111. 26. Mich. 78 (1874). is Walker v. Shepard, 210 111. 1 00, ^2 Ante, §§370 et seq. Ill, 112, semble, accord. 819 § 714] ILLEGAL CONDITIONS AND RESTRAINTS [CH. XXVII He filed a bill to construe the will aM set aside these sales. The decree was in his favor. This was reversed. It is hard to perceive how the decree could have been sus- tained, even assuming that the gift over by way of forfeiture on alienation, was valid. Under such circumstances the life tenant would have had no standing in court, either to construe the will or to set aside the sales as against the creditor, since he would have lost his estate by the taking effect of the gift over. Our Supreme Court, however, puts its decision upon the ground that there was no distinction to be taken between a proviso by way of forfeiture on the alienation of the fee and one attached to a legal life estate. In the former case, they say, the clause of forfeiture is void for repugnancy, and it is just as repugnant to the legal life estate as to the fee simple.'* But observe where this reasoning takes one. Every right of re-entry attached to a fee ought to be void for repugnancy. Every for- feiture of a life estate ought to be void for the same reason. Every gift over cutting short a fee simple, whether by deed or by way of executory devise, must be void .for repugnancy. A second thought must make it plain that there is nothing in this reason of repugnancy,'^ excep.t so far as it contains the suggestion that gifts over upon forfeiture for alienation, are void on grounds of public policy. When the forfeiture, which jt is provided shall occur upon alienation, is void, it is not so because of any technical grounds of repugnancy, but because a sound reason of public policy in favor of freedom of alienation is contravened. The real question is whether any public policy forbids the carrying out of the provision of forfeiture upon alienation. It has become settled that the forfeiture of a fee upon alienation is void.'^ It is equally well settled that the provision for forfeiture of a term for years, imposed at the time the term is created^ is valid.'" The reason for this latter result is that there is no public policy against it, for it is proper that landlords should be able to pro- tect themselves from the occupancy of the premises by others than the original tenant. Exactly the same reason prevails in the case where a tenancy for life is created. No reason of policy 16 Same reasoning approved \ in is Ante, § 712. Walker v. Shepard, gupra. is Posi, J 715. "^wte, §447; pogf, §§723, 735. 820 CH. XXVII] FORFEITURE AND RESTRAINTS ON ALIENATION [§ 716 forbids the reversioner after a life estate to dictate who shall have possession. It is equally proper that, in the creating of a life estate with a remainder, the remainder-man should be pro- tected in the same way by restricting the possession of the life estate to the original life tenant. The overwhelming weight of authority, as well as principle, is, therefore, in accord with the rule that "a provision in the gift of a life estate or" interest that the estate or interest shall cease or shall go over to a third person upon alienation, voluntary or involuntary, of the life estate or interest, is good."^'' Henderson v. Harness seems to stand alone as a decision contrary to such a rule.^^ § 715. Forfeiture upon the alienation of a term for years : It is a matter of common practice to insert in, leases a covenant against assignment or sub-letting without the consent in writ- ing of the landlord, and to make the breach of such a covenant a ground of forfeiture. It is hardly necessary to observe that these are valid. ^^ < Topic 3. Op AN Estate Tail or the Statutory Estates in Place Thereof. § 716. Forfeiture upon the alienation of an estate tail : Suppose a limitation, which would, under the statute de donis, produce an estate tail, is expressly made subject to forfeiture on alienation. Apart from our Statute on Entails ^^ the pro- vision for forfeiture is void.^* Applying, however, the statute you must resolve the estate tail into a life estate to the donee in tail, with a remainder in fee to his children.^s The ques- tion in this statCi therefore, becomes: Will the provision for 20 Gray 's Restraints on Aliena- That is the most appropriate, if not tion, 2nd ed., § 78. ' the only way of accomplishing the 21 It should be observed that the protection of the subject of a devise dictum of the court confines the from creditors. ' ' This was repeated operation of Henderson v. Harness in Streit v. Fay, 230 111. 319, 324. to a ease of legal life estates. The 22 ^,tte, §§ 233-239. court says, (page 309) : ' ' The rule 23 Ante, § 402. would be different where the legaT 24 Gray's Restraints on Aliena- title to the property has been vested tion, 2nd ed., §§ 75-77. in a trustee for the use of the bene- -^^ Ante, § 405. flciary under specific conditions. 821 § 717] ILLEGAL CONDITIONS AND RESTEAINTS [CH. XXVII forfeiture upon alienation be discharged as to both the life estate and the remainder, or will the life estate and the re- mainder in fee both be subject to the restraint, and the provision of forfeiture on each interest be dealt with separately ? This question becomes important in dealing with Heiiderson V. Harness.^'^ There the limitations of real estate were to A for life with a remainder to the heirs of his body. A's life estate was subject to be forfeited before his death and the re- mainder took effect if alienation by the life tenant should occur. If the Bule in Shelley's Case could be applied,^'^ A would have a fee tail with a restraint on alienation going to the ^yhole estate. If, then, it could be said that the provision of forfeiture, being attached to the fee tail, is wholly void, the life estate, into which our Statute on Entails would resolve the estate tail, must be discharged of the restraint. This would be consistent with the holding of the court, tha|; the life estate was not subject to the provisions of forfeiture. The difficulty here, is that our statute turns the estate tail into limitations to A for life with a remainder to the life tenant's children. It will, therefore, be urged that one cannot say A has ever had a fee tail with a restraint on alienation. He only has the fee tail for the pur- pose of the mental operation of applying the Statute on En- tails. He never in fact has anything but a life estate. This reasoning, however, would seem to be met by the doctrine of Spencer v. Sprtiell,^^ that before the Statute on Entails operates, the donee must become actually seized of an estate tail. While so seized the provisions of forfeiture on alienation were void and ceased to exist. TITLE II. foefeiture on failure to alienate— gifts over on intestacy. Topic 1. Where the First Taker Has a Fee or Absolute Interest. § 717. Introductory — Typical cases stated for consideration: The validity in general of springing and shifting executory in- 28 176 111. 302. 28 196 111. 119; ante, §403. ST Ante, §412. 822 Ch. XXVII] foefeitubb' and restraints on alienation [§ 717 terests in real and personal property, especially when created by will, is now fully established.^® It is important, therefore, to classify and arrange cases where certain classes of shifting in- terests are void because there is in feet a provision of forfeiture on alienation which is void on grounds of public policy. Some- times these cases take the form oi. a gift over on failure to alien- ate. An analysis showing the distinctions which may be taken can best be effected by presenting six typical eases for consider- ation, both on principle and under the authorities. Case 1: To A absolutely, but if he does not dispose of the property by deed or will, then to B. This is the same as if the gift over read "if A die intestate." The case is not altered in substance if A be given a power to dispose of the property by deed or will, with a gift over of what remains undisposed of in that manner. The case is the same if the devise be to A absolutely, but if he die without having disposed of the prop- erty by conveyance in his lifetime or by will at his de&th then over to B, for the express power in A to dispose by conveyance in his lifetime or by will at his death is really immaterial. A, having the fee, has the power to dispose by deed or will and the substance of the condition, upon which the gift over takes effect, is such that upon a conveyance by deed or will the gift over could not possibly come into possession. It may be difficult to tell whether there is a gift over on in- testacy or a gift over by way of forfeiture for alienation by will. (Case 2, infra.) Thus, suppose the gift over be of" 'all that remains" or "of all that remains undisposed of" by the first taker at his death. The gift over here is to take effect if the first taker does not dispose of the property in his lifetime. Is it, however, to take effect if the first taker-does not dispose of the property by will? This difficulty was_ presented in Wilson V. Turner,^° and Lambe v. Brayion.^^ It has seemed to the present writer that such language as "what remains" or "what remains undisposed of" should properly refer to what remains li^disposed of by any manner of conveyance by act of the trans- feror as distinguished from a transfer by operation of law. Wilson V. Turner and Lambe v. Drayton have, therefore, been I ^9 Ante, §§462,463-467. ^i 182 lU. 110. See also Orr v. so 164 111. 398; 55 111. App. 543. Yates, 209 111. 222. 823 §717] ILLEGAL CONDITIONS AND BESTBAINTB [CH. XXVII classed as cases of gifts over on intestacy.^^ There is much to glipport this in the fact that our Supreme Court regarded them as falling within the rule of Wolfer v. Hemmer,^^ where the gift over was clearly upon intestacy. Case la: To A absolutely, but if he die without leaving issue and without disposing of the property by deed or will, to B. The case is the same if the gift is upon A 's death intestate and without leaving issue; or if the limitations are to A absolutely, with power to dispose of it by deed or will, and if A dies with- out leaving issue then what remains undisposed of, to B. Case 2: To A absolutely,! but if he does not dispose of the property by deed, then to B. This is the same in effect as a gift over to B if A attempts to dispose of the property by will. The case is still the same if A be given a power to dispose of the property in his lifetime, with a gift over of all that remains undisposed of in th^t manner.^* The ease is still the same if there be a gift over of all that remains undisposed of by the first taker during his lifetime, ^^ for where the first taker is given 32 On the other hand in Dalrymple V. Leach, 192 111. 51, 57, where the gift over was expressed to take effect "if at my wife's death there is any property then in her posses- sion and control," there wovild seem to be much ground for saying that the gift over was to take effect not upon an intestacy but on an at- tempted alienation by will. 33 144 111. 554. 34 This was the form of the gift in Sheets v. Wetsel, 39 111. App. 600, but the validity of the future interest was not there passed upon. It should be observed that the more you qualify the power con- ferred upon the first taker the more surely is the gift over, if the first taker does not exercise that power, a case of forfeiture upon aliena- tion in the manner not specified. In this view the following language of our Supreme Court in Dalrymple V. Leach, 192 111. 51, 57, is very difS- cult to support: "Of course, if the power of disposition of the first taker is a qualified or limited power, there is not necessarily a repug- nancy, and this we think, will gen- erally explain any seeming conflict in the authorities." 35 The difficult ease is where the testator has simply made a gift over of "all that remains at the death of the first taker" or "re- mains undisposed of at the death of the first taker," without saying explicitly whether he means undis- posed of by the first taker dur- ing his life time, or undisposed of in any manner, including failure to dispose by will. It would seem as if, in such a ease, the primary meaning of "undisposed of" was undisposed of in any madner, which is accomplished by the act of the devisee, — i. «., by conveyajice in the first taker's life time or by will at his death, so that the gift over is really on an intestacy. This is the view taken by the writer 824 CH. XXVII] FORFEITURE AND RESTRAINTS ON ALIENATION [§ 717 an absolute interest the express power to alienate by deed is surplusage. The absolute interest gives the first taker power to convey and the substance of the condition — viz: that the property is to go over if he does not dispose of it by deed — makes it certain that the interest which he has transferred can never be cut short. Case 2a: To A absolutely, but if he dies without leaving issue and without disposing of the property by deed, then to B. This case, while remaining substantially the same, may be worded of the limitations over involved in Wilson v. Turner, 164 111. 398, where the gift over was of all "which at her [the first taker's] death shall remain undisposed of," and Lambe v. Drayton, 182 111. 110, where the gift over was of "iwhat is left at my wife's death." These cases, then, find their proper place in connection with gifts over on intestacy, post, §§ 720 et seq. On the other hand, Dalrymple v. Lep,ch, 192 111. 51, 57, where the gift over was to take efEect "if at my wife's death there is any prop- erty then in her possession or con- trol," may well proceed upon the ground that the gift over is to take effect as to all the first taker does not dispose of by conveyance in his life time, and so was void as an attempted forfeiture upon a conveyance by will. So, in Mills V. Newberry, 112 111. 123, where the gift was. to the testator 's moth- er upon the express condition that she devise so much "as shall re- main undisposed Of or unspent at the time of her decease" to a char- ity for women, the power to devise generally was clearly taken away and the gift over, then, was an at- tempt to impose a forfeiture in case of an attempted devise in any other manner. It should be noted that the cases where the question has arisen ^as to whether a power of disposition 4n a life tenant can be inferred from the gift of ' ' all that remains, ' ' (ante, §§ 648, 649), do not help here. In those eases the only ques- tion discussed was whether the life tenant had any power of disposi- tion by implication. If there was any power of disposal at all it was a power in the life tenant to alien- ate during his life, and the ques- tion as to whether the life tenant had a power to dispose by will was not involved. In Henderson v. Blackburn, 104 111. 227, 233, it was hinted that the life tenant could not dispose of the fee by will, but the instrument in that case creat- ing the power in terms provided that the life tenant might "dis- pose of so much of the same as she may need or wish to use during her life time." The words, "if there is anything left" must, then, have meant, "anything not disposed of by the life tenant in her life time." Noi power, therefore, to convey by will was given. Observe, also, that the express power given to the absolute owner may aid materially in construing the phrase "what remains," at the first taker's death: Bergan v. Oa- hill, 55 111. 160 ; Henderson v. Black- burn, 104 111. 227. 825 § 718] ILLEGAL CONDITIONS AND RESTRAINTS [Ch. XXVII in the same different ways as Gase 2, always adding, however, the contingency of A's dying without leaving issue. Case 3: To A absolutely, but if he does not dispose of the property by will, then to B. This is the same in effect as if the gift over were to B if A did attempt to dispose of the property by deed. The case is the same if the first taker be given ex- pressly a right to dispose of the property by will with a gift over of all that is not so disposed of. Again, the case is still the same if there is simply a gift over of all that remains un- disposed of by the will of the first taker, since the express power of alienation by will is immaterial. Having the absolute in- terest, the first taker may dispose of it by will and the condition upon which the gift over was to take effect can then never happen. Case 3a: To A absolutely, but if he dies without leaving issue and does not dispose of the property by will, then to B. This case also, while remaining substantially the same, may be worded in the same different ways as Case 3, always, however, with the addition of the contingency of A's dying without leaving issue. § 718.' Consideration of Cases 3 and 3a: In Case 3 the gift over is upon a failure to alienate by will. This ig in effect an indirect way of .providing a forfeiture if the first taker does alienate by deed. The gift over is, therefore, void.*^ In Case 3a it might be argued that the gift over on a definite failure of issue was valid taken by itself, but that its presence made the fee of the first taker unmarketable and that the power to alienate by will, so to convey an indefeasible title €ven if there were a failure of issue, was a practical extension of the first taker's liberty of alienation. This practical liberty in alienation would, however, be slight because it is only a liberty to convey at death. The case, therefore, presents strongly the feature of a provision of forfeiture upon attempted aliena- tion by deed and the gift over has accordingly been held void.*^ This result was reached by our Supreme Court in Wilson v. se Holmes v. Godson, 8 De Oex, without making a will) before the M. & G. 152 (1856). But see Mel- life tenant, was apparently sus- dahl V. Wallace, 270 111. 220, where tained. Compare ante, § 713. the gift over of a remainder after 3? Gulliver v. Vaux, 8 De G., M. a life estate if the remainderman & G. 167, set out very fully in died intestate (probably meaning Holmes v. Godson, sii/pra. 826 CH. , XXVII ] FOEPEITUEE AND RESTRAINTS ON ALIENATION [§719. Wilson.^^ The deed in question in that case, as the court con- strued the words, conveyed a fee to John Wilson with the fol- lowing gift over : " It is further provided that the above land is not to be transferred, but if said John Wilson and Julia Wilson, his, wife, should die intestate (with no children), the above described lands are to be the undivided property of my three youngest sons [naming them]." Upon the death of John Wilson without children and intestate, the court held that his fee descended, one-half to his widow and the other half to his collateral heirs, subject to the widow's dower, and that the gift over was void. The gift over was not, however, void because it was a fee on a fee by deed.^' The gift over was on "intes- tacy." This usually means intestate as to the paHicular prop- erty, which is the same as "without disposing of the property by deed inter vivos or by will at the first taker's death." We have, however, the very peculiar circumstance that John's fee is made expressly inalienable inter vivos in the very sentence which expresses the gift over. We are, therefore, bound to construe the word "intestate" with reference to the fact that the grantor has already declared "that the above land is not to be transferred" inter vivos by the first taker. The gift over, then, could not be read' as taking effect if John failed to alienate by deed hiter vivos or by will, because that would necessarily give to John the right to defeat the gift over by an attempted alienation inter vivos, which is directly contradictory to the language used. In order, therefore, to reconcile the declara- tion that John's fee is to be inalienable inter vivos and that there should.be a gift over if he died intestate, we must give the word "intestate" a meaning which it is quite capable of bearing without any great departure from the natural meaning of the word, — viz: the failure -to alienate the property in ques- tion by will. Hence, the gift over is in the event that John dies without children and without alienating the property by will. This is the same as a gift over if John dies without chil- dren and does attempt to alienate the property by deed. § 719. Oases 2 and 2a: In Case 2 the gift over is upon the failure of the first taker to dispose of the property by deed. This is the same as a provision of forfeiture if A does dispose of the 38 268 111. 270. 39 Ante, § 462. -827 §720] IliLEGAb CONDITIONS AND RESTRAINTS [Ch. XXVII ' property by will. The gift over is accordingly void.^* That is the result reached by our Supreme Court in Stewart v. Stewart.*^ There the gift over was to take effect if the first taker did not dispose of the property inter vivos, which is the same as a gift over if he did attempt to dispose of the property by will. In Case 2a the situation is practically quite different. A gift over on a definite failure of issue taken by itself is valid. It, leaves, however, the first taker with an interest which is practically unmarketable in his lifetime because of the un- certainty as to whether he will die without issue or not. When, therefore, you add the fact that the gift over does not take effect unless the first taker also fails to dispose of the fee by deed, you have in fact given to the first taker a power of dis- posal of his fee so as to cut off the gift over. This makes his fee or absolute interest marketable during his life. Instead of creating a provision of forfeiture on alienation, an unmarket- able title has in fact been made marketable. Accordingly, the gift over has been held valid in Case 2a.*^ In New York *^ and Massachusetts,** however^ where they have failed to draw any distinction between Case 2a and Case 1, the gift over has been held void.*^ § 720. Case 1 — Gifts over on intestacy — ^Result of the authorities: In whatever form it may appear the legal effect 40 Shaw V. Ford, 7 Ch. Div. 669 43 Jackson v. Bull, 10 John?. 19. (1877). 44 He V. He, 5 Mass. 500. 41 186 111. 60. 45 In accord with Jackson i;. 42 Doe V. Glover, 1 Com. Bench, Bull and Ide v. Ide, see the f ol- 448 (1845). lowing: Flinn v. Davis, 18 Ala. 132; Attorney -General v. Hall (5 July, Kelley v. Meins, 135 Mass. 231; 1731), Fitzg. 9, 314, W. Kel. 13, Annin's Ex'rs ^.Tandoren's Adm'r, while apparently contra, went only 1 McCart. (14 N. J. Eq.) 135 (per- on the proposition that no gift over sonal property); Van Home «. after an absolute interest in per- Campbell, 100 N. Y. 287; Eiddiek sonal property would be permitted, D. Cohoon, 4 Rand. (Va.) 547 (per- drawing a distinction between gifts sonal property; only ground of de- of chattels real and gifts of chat- cision was uncertainty in the sub- tels personal. Since gifts over of ject-matter which would go over) ; chattels personal are now permitted Melson v. Cooper, 4 Leigh (Va.) by will and in this country by deocl 408. or will, Attorney-General v. Hall has no standing whatever as an author- ity. 828 CH. XXVII] FORPMTUBE AND RESTRAINTS ON ALIENATION [§ 721 of the gift over on intestacy is the same. By the authority of the English eases,** by the authority in this country of Chan- cellor Kent *^ especially, and of many state jurisdictions ** including Illinois,*^ the gift over is absolutely void. This is the rule, also, whether the gift be of real "** or personal ^'^ property. § 721. Excuse for reconsidering the authorities upon prin- ciple : The several decisions in this state holding invalid gifts over on intestacy seem to have proceeded rather upon authority than'upon principle. In fact our Supreme Court has never seemed to think it necessary to go farther than to refer to the doctrine of "repugnancy." This is somewhat remark- able because, when Woi/er v. Hemmer,^^ which established the invalidity of gifts over on intestacy, was decided, Gray's first edition of Eestraints on the Alienation of Property had been in print for three years. In that book the idea of repugnancy as well as the whole doctrine that gifts over upon intestacy were void, was disposed of as an unsound and irrational innovation. Yet Wolfer v. Hemmer took no notice of what was there said. Four years after the appearance of the 2nd edition of the same work, containing a further emphasis upon the authorities and ■•8 Gray's Eestraints on Aliena- semble; Randolph v. Hamilton, 84 tion, 2nd ed., §§ 57-64. 111. App. 399, semble; Whittaker v. *7 Jackson v. Eobins, 16 Johns. Gutheridge, 52 111. App. 460, «em- (N. Y.) 537; 4 Kent Com. 270. He; ^Heets v. Wetsel, 39 111. App. *8 Gray 's Restraints on Aliena- 600, semble. tion, 2nd ed.,'i§ 65-74g. Observe, however, that in Mel- ■«9AcMess V. Seekright, Breese dahl v. Wallace, 2 TO 111. 220, the (111.) 76, semble; Welsch v. Belle- gift over of a remainder ,if the re- ville Savings Bank, 94 111. 191, 203, mainderman died intestate before semble; Hamlin v. U. S. Express the life tenant, was held invalid. Co., 107 111. 443, 448, semble; Mills See ante, §§ 713, 718. V. Newberry, 112 111. 123, 138; so Ackless v. Seekright, supra; Wolfer V. Hemmer, 144 111. 554 Hamlin v. U. S. , Express Co., su- (the leading case) ; Wilson v. Tur- -pra; Mills v. Newberry, supra; ner, 164 111. 398; 55 111. App. 543, Wolfer v. Hemmer, supra; Lambe semble; Lambe i;. Drayton, 182 111. v. Drayton, supra; Dalryn^ple i>. 110, semble; Saeger v. Bode, 181 Leach, supi-a; Orr v. Yates, supra. 111. 514, 518; Dalrymple v. Leach, si Welseh v. Belleville Savings 192 111. 51, 57, semble; Kron v. Bank, swpra; Mills v. Newberry, Kron, 195 111. 181; Metzen v. supra; Wilson v. Turner, sv,pra; Schopp, 202 111. 275, semble; Orr Orr v. Yates, supra. V. Yates, 209 111. 222, semble; Ash- =2 144 111. 554. by V. McKinlock, 271 111. 254, 259, § 722] ILLEGAL. CONDITIONS AND RESTRAINTS [Ch. XXVII reason against holding gifts over on intestacy void, we find our Supreme Court speaking of the rule of Wolfer v. Hemmer as if there were no respectable authority for any other position.'* There is, it is believed, a legitimate excuse for restating Gray's reasoning in support of the validity of gifts over on intestacy. There is another reason why the holding invalid of gifts over on intestacy should be examined in detail here. Repugnancy on the part of the future interest to the absolute interest in the first taker was originally assigned as the ground for the rule that the gift over was void. .This notion has been used by our Supreme Court in such a way as momentarily to .cast doubt upon the validity of all shifting interests by deed or will.'* A re-examination on principle, then, of the real nature cf the rule, will, it is believed, do much to aid in permanently removing this doubt. § 722. Reasons for holding void gifts over on intestacy — Of personal property: Gifts over on intestacy of personal property are, it has been suggested, properly held void because the gift over is too uncertain.' ° While this is not the reason generally given in the American cases,^^ and though in this state our Supreme Court has apparently gone far in holding valid a future interest in personal property after a life estate with full power of disposition in the life tenant,^'' yet in Mills 53 In Burton v. Gagnon, 180 111. ^t Ante, §§445-447, 468-469. 345, at p. 352, Mr. Justice Craig 55 Gray's Restraints on the Alien- said: "Our attention has been ation, 2nd ed. §58. called to no well considered case 56 id. § 65. in which an executory devise was 5? 'Walker v. Pritchard, 121 111. held to exist, where such power of 221, 228-230 ; Maun v. Martin, 172 alienation was conferred on the 111. 18. In Gaffield v. Plumber, 175 first taker as exists in this case. ' ' 111. 521, it could hardly be said that Gray in his Eestraints on the Aliena- the gift over was uncertain because tion of Property (§ 74) cites several the principal was placed in the hands cases which hold the gift over valid. of trustees and the cestui for life If it be urged that these can hardly was obliged to petition the court of be called "well considered" it may chancery for leave to use the prin- be replied that Professor Gray has cipal. In Welsch v. Belleville Sav- furnished the well considered basis ings Bank, 94 111. 191, after giving upon which they rest and that his his wife a life estate in all of the opinion is quite as valuable and residue, the testator provided that fully as binding in this state as that liis grandchild Arthur should "re- of the judges of the courts of other eeive from the estate she [the wife] jurisdictions. may leave at her death the sum of 830 Ch. XXVII] PORFEITUEE AND RESTRAINTS ON ALIENATION [§ 723 V. Newberry ^^ we kave a strong authority for resting the in- validity of the gift over on intestacy of personal property ^^ upon the ground of its uncertainty.'^*' § 723. Of real estate : The ground for the rule that gifts over on intestacy, of real estate are void has been phrased in several different ways.*"^ It vra.s first said that the condition, which prevented heirs or next of kin of the first taker in fee from inheriting, was repugnant to the estate in fee given to the first taker and so was void.**^ Taken literally this reason was unworkable since it would make all shifting interests by deed or will invalid. The idea evidently contained in this reasoning of repugnancy was later developed in expression, so that it became this: It i is a necessary incident to the estate in fee that it dpscend to the owner's heirs upon his death intestate, so that the gift over upon the death of the first taker intestate is in reality a for- feiture upon alienation by descent.''^ In this view the invalid- ity of gifts over on intestacy is merely an extension of the rule that gifts over by way of forfeiture upon alienation in a partic- ular manner, viz., by deed or will, are void.^* The difficulty with this is that it is not every gift over by way of forfeiture on alienation that is invalid. Those only are condemned where some principle of public policy is violated. Thus, gifts over by way of forfeiture on alienation to a partic- • ular person have been sustained."" Curiously enough it has $4,000." It was held that even if berry, 112 111. 123, some real estate the wife had a complete right of was also involved. disposal during her life time, yet »<• See Dalrymple v. Leach, 192 Arthur's interest was valid. In 111. 51, the gift over of real estate Wilson 1). Turner, 164 111. 398; there was held void on the ground of un- was a gift of personalty for life certainty which is properly applied with power in the life tenant to dis- only in cases of personalty. pose by deed or will, and yet the ei See H. Clay Horner's Article, future interest was held valid. See Chicago Legal News, June 17, 1905, also Eandolph v. Hamilton, 84 III. p. 354. App. 399. In Bowerraan v. Sesscl, ^^ Gulliver v. Vaux, 8 DeG. M. & 191 111. 651, the power was merely G. 167. to dispose by will so there was no fs Per Fry, J. in Shaw v. Ford, uncertainty. 7 Ch. Div. 669. 58 112 111. 123, citing Ross v. oi^wte, §§ 218, 219. Ross, 1 Jac. & W. 154. 65 Gray's Restraints on Aleina- 59 Observe that in Mills v. New- tion, 2nd ed. §§31-44. 831 § 723] ILLEGAL CONDITIONS AND RESTRAINTS [Ch. XXVII never been contended that any principle of public policy was violated by a gift over on intestacy. Quite the contrary in fact appears, for it always has been held that upon a gift to A for life, with full power of disposal by deed or will, a remainder, in case he does not so alienate, is valid."* The lower courts in New York have seized upon a section of the New York Re- vised Statutes,*''' evidently designed to abolish the common law rule by which certain contingent future interests after a par- ticular estate of freehold were destructible, to justify a decision that a gift over on intestacy is valid."® In one case "" at least, so holding, the court, by Peckham, J., speaks with contempt of the rule which makes the gift over on intestacy void. The learned judge calls it, "a wholly artificial and technical rule founded, as I think, neither upon any policy or sound rea- soning. ' ' The supporters of the rule which makes the gift over on in- testacy void, are thus driven to the assertion that the gift over is in reality by way of forfeiture on alienation by will, as well as by descent, because one cannot devise to those who take by descent.'^'* Conceding this rule to be applicable, the class, upon alienation to which the forfeiture occurs, is very small and the sort of alienation aimed at is very restricted. Is it possible, however, that the technical rule that one caniiot devise to an heir will prevail in such a case to support the argument? Pro- fessor Gray says:''^ "This reasoning would hardly find ac- ceptance at the present day." Why not? The learned author does not explain precisely. May it not be this : The rule that you could not devise to an heir rested upon the principle that if a conveyance could operate at common law it must do so rather than under a statute.''^ Thus, upon a feoffment or release to A and his heirs to the use of A and his heirs, A was in by the «»Pos% § 726, on life interests 137 ; Biggerstafe v. Van Pelt, 207 with power of disposition or ap- 111. 611, 618. pointment. ti Gray 's Eestraints on Aliena- 87 Part 2, § 1, Tit. 2, Art. 1, par. tion, 2nd ed. § 59. 32, p. 725. " In Akera v. Clark, 184 111. 136, 88 Gray's Eestraints on Aliena- 137, the ^ame idea was expressed tion, 2nd ed. §§ 56g, 70. when the court gave as the reason osGreyston v. Clark, 41 Hun. (N. "that a title by descent is regarded T.) 125, 130. as a worthier or better title than by 70 Akers v. Clark, 184 111. 136, devise or purchase. ' ' 832 Ch. XXVII] FORFEITURE AND RESTRAINTS ON ALIENATION [§ 723 common law, i. e., by the feoffment or release.'^* But if for any reason A could not be in by the common law mode of convey- ance, as where there was a grant foi' a valuable consideration to A and his heirs to the use of A and his heirs, and there was no attornment, then he was at once in by the Statute of Uses. The rule was that if the conveyance could not take effe(3t in the mode intended, it took effect as it might.''* Why then, when — the transfer cannot take effect according to the common law by descent because of the gift over, may it not do so in the mode the testator intends — that is by will ? The second phrasing of the reasoning of the rule that gifts over on intestacy were void is this: "That any executory de- vise defeating or abridging an estate in fee by altering the course of its devolution and at no other time, is bad. ' ' ''^ This sug- gestion is out of the question since it exactly applies to the case of a gift over on the first taker 's dying without leaving issue him surviving. If literally carried out, it would, like the reason of repugnancy, destroy the most common and unobjectionable sort of executory devises. The reason given by Chancellor Kent,'^ in favor of holding the gift over on intestacy void, was that the executory devise was contingent upon a circumstance which it was in the power of the first taker to prevent happening. This has been restated by our Supreme Court in this form : '' " An executory devise is indestructible by any act of the owner of the preceding estate, and if the owner of a determinable fee conveys in fee, the de- terminable quality of tjie fee follows the transfer." The rule that an executory devise was indestructible meant that the fin -^ taker could not by any tortious conveyance destroy it as the life tenant could destroy a contingent remainder. Such a rule has no possible connection with the question whether an executory de- vise is void. Furthermore, if it did have any bearing upon the validity of the gift over, the inference would be, not that the gift over was void but that the gift over was valid and the power given to the first taker to destroy it by conveying by deed or "Orme's Case, L. R. 8 C. P. 281. (N. T.) 537; 4 Kent's Commen- ■liAnie, §§62, 456. taries, 270. 75Fr7, J., in Shaw /v. Ford, 7 77 Williams v. Elliott, 246 IB. Oil. Div. 669. 548, 552. 70 Jackson v. Eotiins, 16 Johns. Kales rut. Int. — 53 g33 § 724] ILLKGAL CONDITIONS AND RESTRAINTS [Ch. XXVII will would be void. Yet our Supreme Court asserts:^'* "It necessarily follows that if the first devisfee has an estate which he can convey in fee simple so as to destroy an attempted limi- tation over, such limitation is void!" What then, is the status of the rule that gifts over on intestacy are void? The rule is founded on no sound reasoning. It does not, like the Rule against Perpetuities, carry out any sound principle of public policy. It is, like the rule in Shelley's case,'"' a technical and arbitrary frustration of that thing so sacred to modem courts, the direct expressed intention of the testator. The rule in Shelley's case has at least the merit of being founded upon very ancient authority, and of having been originally de- signed to prevent the total defeat of the settlor's intent.*" But , what shall be said of a comparatively modern rule, purely tech- nical and arbitrary, not founded upon any rule of policy, and thwarting the intention of the testator? It is not even what Professor Gray calls it *^ — "a reversion to a primitive type." § 724. Ca,se la — Gifts over on intestacy and failure of issue ^On principle the gift over should be held valid even though the gift over on intestacy alone be held void: The only reason for holding the gift over in Case la void is because gifts over on intestacy are void and no sound distinction can be drawn between a gift over on intestacy alone and a gift over on failure of issue and intestacy. A distinction, however, can be made between the cases on two grounds : First, the gift over if the first taker dies without leav- ing issue standing by itself is valid. The gift ''over, however, makes the first taker's interest practically unmarketable. The , actual eifeet, then, of the added contingency of intestacy is that the first taker has added to his fee the power to appoint by deed or will a merchantable title to anyone he may choose. Hence, the gift over on the contingency of intestacy is greatly in favor of alienation and not in substance a gift over by way of for- 78 J. for the cestui's support, can be Port Huron Co., 171 111. 502, 507 ; grafted on to our statute. Henderson v. Harness, 176 111, 302, 844 Ch. XXVII] FORFEITURE AND RESTRAINTS ON ALIENATION [§ 732 BeQua v. Graham.,^^ the operation of that section is fully brought out. In the former case it was clearly held that a creditor could not by a bill in chancery, reach the income settled upon the debtor for, his life. In the latter case it was held that if the income was settled by the cestui upon himself the bill would lie. Under this statute, therefore, the extraordinary result is reached that a cestui can convey his interest, but his creditors cannot get it.** TITLE V. INDB8TBUCTIBLE TBXJSTS OF ABSOLUTE AND INDEFEASIBLE EQUITABLE INTEEESTS. , Topic 1. Taken by Themselves and Considered Separately prom any Restraints on Alienation, they are Valid Provided they are properly limited in time. '§ 732. The doctrine of Claflin v. Claflin,3i — How far recog- nized in this state: How far does our Supreme Court recog- nize the doctrine of Claflin v. Claflin, that a proviso declaring that an absolute equitable owner shall not receive the principal of his gift from the hands of the trustee until a certain future time beyond the period of the cestui' s minority, is valid? Graj'-'in his Restraints on Alienation has dealt with the case of Rhoads v. Rhoads,^^ as supporting the rule of Claflin v. Claflin. The language of the Illinois court may be open to the strictures which the learned author has put upon it. It is not so clear, however, that the result reached is not correct upon the ground that the children had a certain executory interest after fifteen years — i. e., that they took an interest which was neither 29 187 111. 67. protect the property from creditors 30 See also Linn v. Dowijing, 216 and enforced the spendthrift trust 111. 64, which seems to deny the doctrine its decision could be read- creditor any right ' upon a new ily understood. On the reason given ground, viz., that where there are it is inexplicable. several beneficiaries to a common si 149 Mass. 19 ; Young ■;;. Snow, or blended fund, the creditor of 167 Mass. 287; Danahy v. Noonan, one cannot reach his debtor's share. 176 Mass. 467, accord. If the court had found, by- can- 32 43 111. 239; Gray's Restraints struction, an expressed intent to on Alienation, ' 2nd ed., § 124. 845 § 732] ILLEGAL CONDITIONS AND RESTRAINTS [Ch. XXVII vested nor contingent, but still executorji^* If so, the decision that the children, although they were of age, could not compel a division of the estate before the end of the fifteen years, must be sound. In fact, the court seems to assume the rule of the English cases, which are opposed to Claflin v. Clafdn, to be the lav. Howe V. Hodffe,^* Chapman v. Cheney, ^^ and Planner v. Fel- low^,^^ might be mentioned as tending to support the rule of Claflin V. Claflin. It is clear, however, that the two latter cases do not in any way involve the validity of a postponement clause and the result reached is perfectly consistent with the view that the postponement clause is void. Howe v. Hodge is equally indecisive as far as any support of Claflin v. Claflin is con- cerned. "We may suppose the gift, in that case, to be not pre- ceded by any life estate,^'^ so that it is a direct vested gift in the testator's grandchildren with a postponed enjoyment till each grandchild respectively reaches the age of twenty -five. We may even assume that the court was of the opinion that the class would be allowed to increase until the eldest grandchild actually reached thirty, because the postponed enjoyment clause was valid. Nevertheless, the doctrine of Claflin u. Claflin is not supported, because, even where Claflin v. Claflin is not law, the postponed enjoyment clause is valid where its existence is for the benefit of other members of a class.** So where there are gifts over during the period of the trusteeship so that the equitable interest is not indefeasible, there can be no ground for prematurely terminating the trust.*® When the author !s Future Interests appeared in 1905, the only ease in this State actually supporting the holding of Claflin V. Claflin was Lunt v. Lu-nt.*^ In that case the testator made certain provisions for his children (two daughters) when they or the survivor of them arrived at the age of thirty years, if his wife still survived. Then he provided "and in ease my said wife shall die within thirty years from the birth of my youngest 33 Ante, % 482. 441 ; Gray 's Bule against Perpetui- 3< 152 111. 252. ties, 2nd & 3rd, § 639aa. 30 191111.574. 39 Bennett ■u. Bennett, 217 111. 38 206 111. 136. 434; Johnson v. Buck, 220 111. 226. V Ante, § 566. lo 108 111. 307. 38 Oppenheim v. Henry, 10 Hare, 846 Ch. XXVII] fobfmtube and restraints on auenation [§ 732 child, then at the expiration of said thirty years my whole prop- erty shall go to my heirs-at-law. " The wife died before the youngest child attained thirty, and the two daughters, being then over twenty-one, claimed to be entitled at once upon the ground that the said clause quoted was void for remoteness, being executory after thirty years. The validity of this con- tention the court denied upon the ground that, at least, upon the widow's death while the youngest child was under thirty (the event which happened), the children took a vested interest subject to a postponed enjoyment until the youngest reached thirty. That at once raised the question of whether the- post- poned enjoyment clause was not void as an improper restraint upon alienation, so that the daughters would be at once entitled. This point was not elaborately discussed but the court seems to have been perfectly clear that the intent of the testator must prevail. "By the plain terms of the will," the court said, "the property * * * would remain in the hands of the trustees until the youngest daughter arrived at the age of thirty. ' ' Ac- cordingly, the daughters were denied any relief.*^ Recently there have been three cases *^ which have firmly es- tablished rule of Claflin v. Claflin in this state. In considering whether the rule of Claflin v. Claflm is law in this state, the attit'ude of our Supreme Court upon ithe validity of spendthrift trusts should not be overlooked. While it does not follow that, because a postponed enjoyment attached to 41 Allen V. MeFarland, 150 111. children who survived the wife, then 455, ought to be read in eonneetion the court's position would seem to with Lunt v. Lunt. It is, however, be in accord with the rule of Claf- almost impossible to state what view lin v, Claflin. If such gift over is the court took of the limitations in properly derived^ from the words that case. They seem to have re- "or as many of them [testator 's garded the gift to the children as children] as may be living at that a present vested interest subject to time [wife's death]," then the rule a postponed enjoyment till the of Claflin v. Claflin is not involved, wife's, death and to have actually for the plaintiff would have no held that the heirs of the child of standing in court a^d the postpone- the testator dying after the testator, ment would be valid even where could not maintain a bill to compel Claflin v. Claflin is not law, on ac- a distribution before the death of count of the gift over, the wife. If the court also regarded 42 Wagner v. Wagner, 244 111. 101 ; the will as containing no gift over Guerin v. Guerin, 270 111. 239, 245; of the shares of children dying be- Sheley v. Sheley, 272 111. 95. fore the death of the wife to those 847 § 733] ILLEGAL. CONDITIONS AND EESTBAINTS [Ch. XXVII an absolute equitable interest is valid, spendthrift trusts must be recognized, the converse proposition is true. If, therefore, Steib V. Whitehead,*^ recognizing the validity of spendthrift trusts, be regarded as law, it is not surprising that the rule of Claflin V. Claflin applied in Lunt v. Lunt, should be followed. § 733. How far sound on principle — The authorities at large : Should the rule of Claflin v. Claflin be simply tolerated as something bad that exists, or should it be supported as sound on principle? If one looked simply at the result of the au- thorities, they would doubtless take the first alternative, for the English cases have long since settled the law for that juris- diction, that the postponement is void.** It may^be conceded, also, that the great deference which we pay to the long settled rules of the English equity judges on questions of this sort would make the weight of authority preponderate against Claflin v. Claflin, even though American jurisdictions had more frequently followed the Massachusetts rule than that of the English cases.*" §734. Keasoning of the English cases: When we come to ask what are the reasons in support of the view that the postponement is void, we naturally turn to those given by the English equity judges. Here we find few reasons given. Saun- ders V. Vautier,*^ which is the foundation of the whole doctrine in the English courts, gives no reason at all. Similarly a great i^ass of English cases decided since, follow the rule without the slightest suggestion of the reasons upon which it is based.*' *3 111 III. 247. ties: Shallcross's Estate, 200 Pa. ** Saunders v. Vautier, 4 Beav. St. 122; also one in' Connecticut: 115; 1 Or. & Ph. 240 (Lord Gotten- Conn. Trust & Safe Dep. Co. v. ham, C.) ; Weatherall v. Thorn- HoUister, 74 Conn. 228. Cf., how- burgh, 8 Ch. Div. 261 (Court of ever, Gray's Eestraints on Aliena- Appeal) ; Harbin v. Masterman tion, 2nd & 3rd ed., §§ 124e and [1894], 2 Ch. 184, affirmed in the 124d for reference to some Pennsyl- House of Lords, sub nam. Wharton vania decisions looking the other V. Masterman [1895], A. C. 186. way. For other cases decided by single The rule of Claflin v. Claflin equity judges, see Gray's Be- seems to be law in Kentucky as straints on Alienation, 2nd ed., well as Illinois : Smith v. Isaacs, §§ 105-112, and also the recent case 78 S. W. 434 (Ky.); Avery v. of In re Thompson, 44 W. E. 582. Avery, 90 Ky. 613,' semUe. For the 45 There is a dictum in a recent Illinois cases, see ante, § 732. Pennsylvania case in accord with *« 4 Beav. 115 ; 1 Cr. & Ph. 240. the long line of English authori- *t Josselyn v. Josselyn, 9 Sitti. 63 ; 848 Ch. XXVIl] FORPKITUKE AND RESTRAINTS ON ALIENATION [§ 734 Lord Hershel in Whfrton v. Mmterman,*^ said, speaking of the foundation of the rule of Saunders v. Vautier: "The point seems in the first instance to have been rather assumed than decided." In C^lrtis v. Lukin*^ Lord Langdale, M. R., after stating the grounds upon which he supposed Lord Cottenham's decision in Saunders v. Vautier rested, plainly queried whether the rule was based on sufficient grounds. So in Pmrd v. Keke- wichp^ where the postponement was actually held good, the Master of the Rolls, Sir John Romilly, plainly declares he sees no reason against it.^ In the few cases where reasons have been given for the rule, they are of a somewhat varied and uncer- tain nature. In Gosling v. Gosling,^^ Sir W. P. Wood, V. C, said in supporting the rule of Saunders v. Vautier: "If the property is once theirs, [the cestuis] it is useless for the testator to attempt to impose any fetter upon their enjoyment of it in full, so soon as they attain twenty-one." This is merely a reiteration of the rule. It contains no reason upon which the rule is founded. Lord Langdale, M. R., in Curtis v. Lukin,^^ in an opinion rendered a year and a half after Saunders v. Vautier, said, speaking of the case~of an absolute vested interest in a legatee, subject to a provision that he is not to have pos- session until a time subsequent to his attaining twenty-one: "The court, therefore, has thought fit (I do not know whether satisfactorily or not) to say, that since the legatee has such the [a] legal right and power over the property and can deal with it as he pleases, it will not subject him to the disadvantage of raising money by selling or charging his interest, when the thing is his own at the very moment." More recently, the court of appeal has put forward such reasons as inconsistency or repug- nancy in the postponement, and that it is a necessary conse- Eocke V. Eocke, 9 Beav. 66; Swaf- 475; Talbot v. Jevers, L. R. 20 Eq. field V. Orton, 1 DeG. & Sm. 326 255; Se Cameron, 26 Ch. Div. 19; (Knight Bruce, V.-C, said of post- Se FitzGerald's Settlement, 37 Ch. ponements: "Precarious and un- Div. 18; Me Parry, 60 L. T. N. S. effectual"); Se Toung's Settle- 489; Lazarus v. Lazarus, 14 Viet, ment, 18 Beav. 199; Coventry v. L. R. 806, note (c). 'Coventry, 2 Dr. & Sm. 470; Se « [1895] A. C. 186, 193. Jacob's Will, 29 Beav. 402; Ma- « 5 Beav. 147. grath V. Morehead, l! E. 12 Bq. »" 15 Beav. 166. 491; Snow v. Poulden, 1 Keen 186; si h. E. V. Johns 265, 272! Hilton V. Hilton, L. E. 14 Eq. 468, 52 5 Beav. 147, 156. Kales Fut. lot. — 54 §49 § 735] ILLEGAL CONDITIONS AND RESTEAINTS [CH. XXVII quence of making an absolute gift that there can be no post- ponement of enjoyment.^3 Such reasons have even been half- heartedly urged by th^ Law Lords.^* § 735. The reason of repugnancy unsound : It is believed that the last of the reasons above mentioned is 'the most 'easily disposed of. It can hardly be said that the postponement is void for repugnancy or because one cannot make an absolute gift and then direct how it shall be enjoyed. If such argu- ments are to prevail or be conceded as of general validity, all shifting interests by deed and shifting executory devises will be void for repugnancy as well as a provision for forfeiture on alienation attached to a legal life estate, and, gifts over on intestacy. It would hardly seem possible, on the ground of repugnancy alone, to violate that modern fundamental principle of all conveyances and especially of conveyances by will, that, in the absence of any ground of public policy embodied in a rule to the contrary, the intent of the transferor shall be carried out. It is the freedom founded upon this rule which has dis- tinguished the development of conveyancing since the time of Henry the VIII, and it is the constant gain in force of this principle which enables Gray, at the end of his chapter on future interests, in his Rule against Perpetuities,^® to declare that "originally the creation of future interests at law was greatly restricted, but now, either by the Statutes of Uses and "Wills or by modern legislation, or by the gradual action of the courts, all restraints on the creation of future interests, ex- cept those arising from remoteness, have been done away. ' ' It may be argued that if one proceeds upon the principle of allowing the testator to do what he wants with his own, he does so in obedience to a principle which declares that dominion over an absolute interest should not be interfered with. Why, then, where there is an absolute equitable interest, does not the application of the same principle require that the cestui can terminate the trust regardless of the postponement? To this it must be answered that the very question at issue is whether the cestui has the whole interest or merely an interest hampered with an indestructible trust. The principle in favor of per- B3 Weatherall v. Thornburgh, 8 54 Wharton v. Mastermam, [1895] Ch. Div. 261; Harbin v. Master- A. C. 186. man, [1894] 2 Ch. 184. os § 98. 850 Ch. XXVII] FORFEITURE AND RESTRAINTS ON ALIENATION [§ 737 mitting one to do what he pleases with his own cannot be in- voked to make the trust destructible until you have decided the very point in issue. On the other hand, all are agreed that the settlor or testator is the absolute owner without restriction. All must, therefore, agree that the principle conceded applies when we come to consider what he may do with his own. He should be able to settle it with what restrictions he pleases so long as no principle of public policy is violated. §736. Reasoning based upon public policy — Pi^eliminary: Lord Langdale,^® adopted the only line of reasoning open to one endeavoring to support the decision of Saunders v. Vautier', when he attempted to justify the rule of that case upon some ground of public policy. It is clear, however, that the public policy which makes void restraints an alienation of absolute in- terests is inapplicable, for in the case of a postponed enjoy- ment merely, no alienation is prohibited and no creditor is de- prived.'''' The cestui whose interest is subject to a postponed enjoyment, may alienate with perfect freedom. The whole effect of the postponed enjoyment clause is simply to provide- that the trust shall continue. The narrower question, therefore, be- comes : is there any reason of public policy against the making of a trust indestructible so insistent that it warrants the in- troduction of a rule which defeats the settlor's intention? § 737. The duration of the postponement must be limited in time: ^^ At the outset of this discussion it must be conceded that the duration of the postponement must be limited in time. The allowance of postponements C3,lculated to make trusts in- destructible forever, or for a great length of time, is not to be sustained under any consideration. Fortunately for the argu- ment, the length of time that a postponed enjoyment may la.st, assuming it to be valid, has been settled by the English cases themselves. In England the restraint upou alienation of an absolute equitable interest has been permitted only when im- posed for the benefit of married women and to be effective during ?8 Curtis 1). Lukin, 5 Beav. 147, § 114a; Sanford v. Lackland, 2 156. Dill (U. S.) 6; Gray's Restraints on o^Piercy v, Roberts, 1 Myl. & K. Alienation, 2nd ed., §114; Havens 4; Gray's Restraints on Alienation, v. Healy, 15 Barb. 296; GrAy's Re- 2nd ed., § 106; Sears v. Putnam, straints on Alienation, 2nd ed., 102 Mass. 5, semhle; Gray's Re- §116. straints on Alienation, 2nd ed., ss See ante, §§ 658-661. 851 738] ILLEGAL CONDITIONS AND RESTRAINTS [Ch. XXVII coverture. With regard to such a restraint on alienation, it has now become the settled rule of the English cases, that it is wholly void if it may possibly last longer than a life in being and twenty-one years.^® Nothing ought to be more certain than that the postponed enjoyment clause, valid under the doctrine of Claflin .v. Claflin, must be subject to the same qualification. It is, therefore, wholly void if it may possibly continue longer than a life in being and twenty-one years."** It should be ob- served, however, that the above qualification is not an applica- tion of the Rule against Perpetuities. So long as it is assumed that the cestui has a present absolute interest subject only to a postponed enjoyment, no future interest is involved. There can, therefore, be no question of the application of the Rule against Perpetuities.®^ The rule governing the creation of post- ponements is a separate one which limits the time during which a trust may be rendered indestructible. • § 738. Consideration of the precise issue involved: The precise question has then become: what reason of publia policy 59 J» re Ridley, 11 Ch. Div. 645 (1879) ; Gray's Bestraints on Alien- ation, 2nd ed., §§ 272b-272e. eoKohtz V. Eldred, 208 111. 60, 72, Semite. See also Sadler v. Pratt, 5 Sim. 632; Jackson v. Mar- joribanks, 12 Sim. 93; Shalloross' Estate, 200 Pa. St. 122 (1901), semble; Winsor v. Mills, 157 Mass. 362, semble, accord. In Kentueky there is a statutory provision to the same effect: Ky. Stats. (1903), sec. 2360; Johnson's Trustee v. John- son, 79 S. W. 293 (Ky. 1904). 61 Gray, in the first edition of his Rule against Perpetuities, § 432, at- tempted to support the result of the English cases, making void re- straints on anticipation in married women's settlements which lasted too long, upon the ground that the Rule against Perpetuities was vio- lated. It was there argued that it was a condition precedent to the payment of each dividend that the time for its payment should arrive. But even under such a view there was the difficulty that the whole re- straint was void and not merely so much as extended beyond the life or lives in being and twenty-one years. But what condition prece- dent can be imagined where there is only a postponement as in Claf- lin v. Claflin? The reasoning pro- posed by Professor Gray to sup- port the rule of the English cases cannot, it is believed, apply where you eome to the rule of Claflin v. Claflin. In the second and third editions of Gray 's Rule against Per- petuities we find the learned author suggesting the validity on principle of the married women's clause against anticipation (§121f) and placing the invalidity of the post- poned enjoyment clause, not on the ground that the Rule against Per- petuities is violated, but upon the ground that the restraint lasts too long (§ 121i). 852 Ch. XXVII] FORFEITURE AND RESTRAINTS ON ALIENATION [§ 738 is there against a postponed enjoyment, properly limited as to its duration in time, of an absolute equitable interest ? It seems not to have been decided whether a creditor or a grantee of the cestui would be entitled to immediate possession of the property, or would take only the cestui's title sub moda.^^^ Gray makes 4he point, that " if a creditor or grantee can get immediate possession of the fund, the restraint is a mere form. The cestui que trust can by the simple ceremony of making a deed of his interest to a third person and taking a deed back, hold the property free from all fetters. "^^ But if the post- ponement is a mere form, how can it do any harm to anybody? The testator's harmless whim ought to be allowed to prevail in the interest of supporting his expressed intention. Who ever heard of its being a ground of public policy, upon which a testator's object was to be completely frustrated, that what he desired to accomplish njight be avoided? Such an argu- ment would defeat the very rule which Gray contends for, since it is perfectly clear that even under the English cases all the results of Claflin v. Claflin can be obtained by making the trus- tee a beneficiary to a small extent. Equity, then, acting ac- cording to the general rule, will not decree a conveyance to the beneficiaries unless all join in the request."^ "If, on the oth«r hand," Professor Gray continues, "the creditor or grantee can take possession of the property only at the time when the settlor or testator has directed, for example when the cestui que trust reaches forty years, then any sale or taking from the cestui que trust will be under the circumstances, highly disadvantageous to him." Obviously, the learned au- thor's idea, is, that if the cestui be a spendthrift, the position for him is the very worst, since he will sell at a ruinous dis- count. If he is not a spendthrift, then there is no use in such a clause. It is submitted, however, that there is nothing in these considerations which rises to the dignity of a ground of pub- lie policy strong enough to frustrate the settlor's or testator's in- tention, as expressed. The two extreme cases put, indicate no more than the settlor's or testator's lack of wisdom in inserting oiaSee De Ladson v. Crawford, «3 Gott v. Nairne, 3 Ch. Div. 278; 106 Atl. 326 (Conn.). Ames' Cases on Trusts, 2nd ed., 455. 62 Gray's Eestraints on Aliena- tion, 2nd ed., § 124n. 853 §73,8] ILLEGAL CONDITIONS AND RESTRAINTS [CH. XXVII the provision which he has expressed. It may, perhaps, be ad- mitted that lack of wisdom is clearly shown where the cestui is a spendthrift. Lord Langdale, M. R.** suggested that there might be a per- fectly legitimate reason for a well conducted legatee to turn his interest into cash, and that it would be unwise to enforce the testator's intention so as to "subject him to the disadvantage of raising money by selling or charging his interest, when the thing is his own at this very moment." Nevertheless, in giving this reason, the Master of the Rolls seems to be in doubt whether it is a satisfactory one or not. It certainly has not been re- peated. It does not, it is believed, come up to a reason of public policy of suf&eient strength to overturn -the testator's intention. At most it shows merely a lack, of wisdom on the part of the testator. If the testator's intention is to fail because the pro- vision which he has made is unwise, there would be no end of freaking wills. ' It is submitted, however, that it is by no means clear that the postponed enjoyment clause is, in the long run, even an unwise provision where the cestui is not a spendthrift. Is it such a foolish thing for a testator, even when he has per- fect confidence in his grown children, to direct that property left them shall remain in the hands of trustees until the children reach a more mature age than that of twenty-one years? Is it such a foolish thing to encourage cestuis to leave the personal care of their property in the hands of trustees of the testator's selection until after the age of twenty-one? The worst charge that can be made against holding these post- poned enjoyment clauses valid, seems to be that they are either harmless, or in an pxtreme case, viz : where the cestui is a spend- thrift and insists on selling his\ equitable interest for cash, un- wise. To defeat the testator's intention wholly upon so trivial a ground ought not to be thought of. • The attitude of the court in Claflin v. Claflin is in favor of carrying out the settlor's in- tention and the result reached is, it is submitted, proper. It is believed that Gray's violent dislike for the rule of Claflin V. Claflfin, is due to his abhorrence of spendthrift trusts. Thus, ' he suggests ^^ that, if twenty-one is too young for a person to come of age, the legislature extend the period of minority, and 64 Curtis V. Lukin, 5 Beav. 147, ob Restraints on Alienation, 2nd 156. ed., §1240. 854 CH. XXVII] FORFEITURE AND RESTRAINTS ON AUENATION [§ 739 that holding valid postponed enjoyment clauses, is a species of paternalism witTiout the advantages of paternalism and with only its irritating and demoralizing features retained. All this points to the fact that an overflow of animosity towards spend- thrift trusts has been leveled at the validity of postponed en- joyment clauses. There is, however, no reason why the repulsion, however excessive, for the former, should include the latter. It is coneeived that the only connection between the doctrine of spendthrift trusts and the doctrine of Claflin v. Claflin, is that both rest fundamentally upon the rule that a testator or settlor can do what he likes with his property so long as no rule founded on public policy is contravened. Hence, where spendthrift trusts are allowed it may be expected that Clctflin y. Claflm will be followed. It is by no means triie, however, that, because there is no reason of public policy against such a postponement as was sustained in Claflin v. Claflin, there is none against spend- thrift trusts. The writer believes, therefore, that while spend- thrift trusts are entitled to all the abhorrence which Grray has given them, yet it does not follow that the postponement clause, limited properly as to the time of its duration^ is not' entirely harmless and proper. Topic 2. A Holding, However, that Restraints on Alienation (At- tached TO THE Absolute and Indefeasible Equitable Interest While the Trust Remains Indestruc- tible) ARE Valid, is Indefensible. § ^39. Such a holding has been made in Massachusetts and Illinois: The writer's defense of Claflin v. Claflin ^^ was predi- cated upon the fact that restraints on alienation attached to the equitable interest while the trust remained indestructible would be held void. Gray's distrust of the doctrine of Claflin V. Claflin was founded upon the view that it meant ultimately that restraints on alienation attached to the equitable fee while the trust remained indestructible would be held valid. It turns 88 149 Mass. 19 (which is printed Future Interests in 1905, ante, substantially as it appeared in Ms §§732-738). 855 § 739] HjLEgaij conditions and restraints [Ch. XXVII out that Gray, was right. A recent case in Massachusetts "'^ and two cases in Illinois®* have so held. In Wallace v. Foxiwell ®® the will in question devised an ab- solute interest in realty and personalty to trustees upon trust to pay the income to the wife for life and at her death one- half the net income was to be paid to the testator's daughter for life, and on her death the principal was to be distributed among her right heirs. The other one-half of the net income and principal was disposed of by the 4th and 5th clauses a^ follows: "Fcmrth — Upon the decease of my said wife, Marcia I. Spaulding, to pay over to my son, Howard H. Spaulding, and to his wife, Florence B. Spaulding, one-half of the net income of my estate in such proportions as they may see fit, paying more of less to the one or the other, as they may deem best, during the lifetime of my son, Howard H. Spaulding, and upon the decease of my said son, Howard H. Spaulding, to convey one-half of my estate to the right heirs of my son, Howard H. Spaulding. ' ' "Fifth — To convey to my son, Howard H. Spaulding, after the decease of my wife, Marcia I. Spaulding, one-half of my estate at such time as- may seem best for them to do so." Howard became a bankrupt during the widow's life and all his interest was sold by a trustee in bankruptcy. After the death of the widow the trustee filed a bill to determine what interest the person claiming under the bankruptcy sale had. A decree was entered that the purchaser at the bankruptcy sale had obtained no interest whatsoever. This was affirmed. As to the personal estate the decision is unquestionably cor- rect. The Rule in Shelley's Case was not applicable to give to Howard any absoMte interest in the personalty.^" The fifth clause did not tend to indicate that Howard was to have any absolute interest in the personalty. It merely gave to the trus- tees a power to convey the absolute interest to Howard in his lifetime if they saw fit. As to the real estate there is more difficulty. It was argued in support of the decree that there was a general trust for con- <" Boston Safe Deposit & Trust eo 250 111. 616. Co. V. Collier, 222 Mass. 390 (1916). to i^rd v. Comstoek, 240 111. 492. 68 Wallace v. Poxwell, 250 111. 616; Hopkinson v. Swaim, 284 111. 11. 856 Ch. XXVII] FORFEITURE AND RESTRAINTS ON ALIENATION [§ 739 version so that all of Howard's interest was personal property. Therefore the 'Rule in Shelley's Case could not apply. This point is not touched upon by the court. It is fair to say, therefore, that in reaching its conclusion it assumed, at least for the sake of argument that there was no trust for conversion, and that the Rvle in Shelley's Case applied,''^ so that the remainder to the heirs of Howard became a remainder in fee to Howard himself. The court sustained the decree below by holding that the ab- solute equitable interest of Howard obtained by him as a result of the application of the Rule in Shelley's Case was subject to a restraint on involuntary alienation placed upon it by the tes- tator, ''^ which was valid and effective to defeat the bankruptcj' sale. ■'^Ante, §412. 72 first ; It should be noted that no restraint on alienation is created by words directly. The restraint is found only as a result of a supposed general scheme to protect the bene- ficiary. The analytical argument, however, is very strong against the existence of any restraint on alien- ation even on this theory. The scheme actually used is the regular one adopted where spendthrift trusts are held void. We have here a power given to the trustees to pay more or less, as they see fit, to the spendthrift Howard or his wife. In short, if Howard gets into financial difficulties the trustees are given the means of saving the estate from his creditors by transferring the pay- ments to his wife. This is the scheme that is approved by Lord Eldon in Lord v. Bunn, 2 Y. & C. C. C. 98. It is regularly used in Eng- land . and states where restraints on alienation were held void even when attached to a life estate. The de- vice is entirely distinct and different from the direct restraint on alien- ation. It presupposes the accom- plishment of the testator's purpose without any restraint on alienation. 857 For the court to work a direct re- straint on alienEition out of it, is to impose upon the testator a scheme which there is every reason to believe from the language used he did not have. See post, §§ 742- 748. Second: If there be a restraint on_ alienation then it is observable that it is .attached to the life estate of Howard and to that alone. By the Rule in Shelley's Case, How- ard's life interest is not affected at all. Only the remainder to How- ard's heirs is turned into a remain- der in fee to Howard himself, so that Howard then has an equitable life estate together with his wife, with a restraint upon his alienating that life estate, and then a separate • equitable and vested remainder in fee ia himself not subject to any restraint or alienation. As the life estate and the remainder in fee only coalesce and come together in a single fee by the doctrine of mer- ger, there will be no merger if that will prejudice the rights of others or defeat the express , provision of the testator in the carrying out of some other provisions of the will. In the principal case if the wife be § 740] ILLEGAL CONDITIONS AND EESTBAINTg [Ch. XXVII In Bopkinson v. Sttmim''^ the testator devised to William for life and the fee to the children of William, with power in Wil- liam to appoint a trustee for the children's interest. William appointed a trustee and provided restraints on the alienation of the children 's_ interests. It was apparently assumed that the trusteeship was to continue at least for the lives of the children who had absolute and indefeasible equitable interests. It was assumed also that the restraints on alienation would continue for the same period. In an attempt to have the execution of the power declared wholly inoperative, it was contended on behalf of the children that the restraints on alienation were void. The court, however, sustained them. After pointing out that re- straints on the alienation of an equitable life estate were valid spendthrift trusts, the court said : ' ' There is no reason for such a rule in the case of a life estate which does not apply equally to a fee during the life of the owner. ' ' § 740. The position of the court in the above cases is fncon- sistent with decisions already made and adhered to, and con- trary to the weight of authority : The one holding that seems secilre is that a restraint on alienation attached to a legal fee is void.'^* On the other hand, it, is equally well settled in this State that a restraint on alienation attached to an equitable life estate is valid.''^ The same rule has been applied to legal life estates in this state, the position being taken that there was no logical difference in the application of a rule of public policy regarded as having an equitable would stand subject to the rights of charge upon the life estate of her his wife and the restraint on alien- husband for such part of the in- ation and Howard would have a come as the trustees shall determine, separate and distinct equitable, re- then a merger, which destroyed the mainder in fee not subject to any life estate, would prejudice the restraint on alienation. In this view rights of the wife. So a merger the ultimate remainder in fee of might destroy the restraint on alien- Howard must have passed by the ation attached to Howard's life bankruptcy sale. The court denied estate because the life estate to this conclusion, it is believed, only which the restraint was attached by assuming that the restraint on would have been extinguished and alienation was applicable to the ceased to exist by reason of the equitable fee which Howard took by merger. These reasons would lead the Eule in Shelley's Case, to the conclusion that no merger f^ 284 111. 11. would occur, (anie, §440), and that t* Ante, §727. Howard's equitable life estate ''s Ante, ^§ 730 et seq. 858 Ch. XXVII] FORFEITURE AND RESTRAINTS ON ALIENATION [§ 740 to the .restraint on the alienation of a legal life estate and the restraint on an equitable life estateJ^ In view of these known results, what should the court do with the restraint on the alien- ation of an indefeasible equitable fee? As far as logical de- duction is concerned one would have supposed it impossible to reach any other conclusion than that the restraint was void. Such, it is believed, was the unanimous result of the author- ities ^^ prior to the recent Massachusetts and Illinois cases. The latter represent an innovation in the law. Every case relied upon by our Supreme Court where the restraint was held valid, was one where the restraint was placed upon an equitable life estate.'^® In Wagner v. Wagner ''* it is true that the restraint on 'alienation was attached to. an absolute equitable interest. In that case, however, no creditor or alienee was attempting to enforce the conveyance from the cestui. The only point actually involved was .the attempt to make the trust of an absolute, and indefeasible equitable interest indestructible for a time so that the cestui could not terminate the trusts without 1;he consent of the trustee. The rights of creditors or involuntary alienees of the cestui were not in the slightest degree involved or under consideration. 'The holding of the court that the trust was in- destructible by the cestui was placed upon the precise ground that such a provision was valid as against the cestui. To such a holding there cannot well be any sound ob.jection.*" The lan- guage of the court which referred to the trust as a spendthrift trust and intimated that there w^s a restraint on alienation which would Ise valid as against creditors or alienees was entirely uncalled for and outside the scope of the decision. It was mere dictum. 76 Christy v. Pnlliam, 17 111. 59 ; see Poulke 's Rule against Perpetui- PuUiam v. Christy, 19 111. 331; ties in Pennsylvania, §§ 245-254. Christy v. Ogle, 33 lU. 295; Emer- 's stambaugh's Estate; 135 Pa. son V. Marks, 24 111. App. 642. St. 585; Baker v. Brown, 146 Mass. "Gray, Eestraints on Alienation, 369; Patten v. Herring, 9 Tex. Civ. 2nd ed; §§105, 106, 113 et seq. Sec App. 640; Steib v. Whitehead, 111 also Sears v. Putnam, 102 Mass. 5, 111. 247; Bennett v. Bennett, 217 9; Saaford v. Lackland, 2 I)iU. (IT. lU. 434. S.) 6; Havens v. Healy, 15 Barb. " 244 111. 101. (N. T.) 296. For a discriminating . »o Ante, §§ 732 et seq. report upon the. Pennsylvania cases 859 § 741] ILLEGAL CONDITIONS AND EESTRAINTS [CH. XXVII § 741. The recent cases sustaining the restraint on aliena- tion attached to absolute and indefeasible equitable interests are contrary to sound public policy: Six centuries ago the great feudal landowners of England, by the Statute Be Bonis. secured for themselves the right to create an estate in A and the heirs of his body which would descend to A's heirs as long as his issue continued and would be inalienable by any holder of the estate so as to bar the right of the issue to inherit. For a century the estate tail so created remained inalienable. Then the courts brought the intolerable evil of such a restraint on alienation to an end by allowing the estate tail to be aliened in fee by the common recovery.*^ A few years later by statutes the same effect was given to the levying of a fine by the tenant in tail.*2 Ever since, the fee tail has been freely alienable in fee simple by fines and recoveries, and, more recently, by modern disentailing conveyances. In the 16th century the effort to place a condition of forfeiture on any attempt to bar the entail by a fine or recovery was held invalid.^^ The attempt was branded as an effort to create a perpetuity — meaning a perpetually in- alienable estate. Have we not in effect returned to the state of the law as it was originally made in favor of the great feudal land owners by the Statute De Bonis? We cannot, of course, in Illinois today create an estate tail. We can do better. We can have an equitable fee or an absolute equitable interest in personal property which can be made inalienable during the life of the owner. His interest cannot be taken for his debts and he cannot part with his interest. The obvious thing which he can do is to pass it on to the next generation with the same restraint and so on in infinitum. If such a practice becomes popular will not thcN distribution of wealth in Illinois in time be about as satisfactory as it was in England in the 15th century after the Statute De Bonis had been in force for a hundred years ? We had supposed that the courts were traditionally inter- ested in the freedom of alienation and the continuous redistribu- tion of wealth, and against decisions which aid the perpetuation of great fortunes in the hands of the feW; We had supposed that one of the reasons urged to mitigate the evil of large »'^ Ante, §17; Gray, Rule against ^^ Ante, §17; Gray, Bestraints on Perpetnities, Snd ed. § 141. Alienation, 2nd ed. § 77. 860 CH. XXVII] FORFEITURE AND RESTRAINTS ON ALIENATION [§ 743 fortunes in the hands of individuals was that in a few genera- tions they would all be redistributed by natural processes. We had supposed that a rule which, when taken advantage of, tended to stop this process of redistribution, was in the highest degree inimical to the interests of the pu,blic. "We had sup- liosed that this was the well recognized basis upon which courts had for centuries held the restraint on alienation attached to a legal or equitable fee to be void. TITLE VI. CONSTRUCTION— WHAT WOEDS ARE SUFFICIENT TO CREATE RESTRAINTS ON ALIENATION OR A SO-CALLED SPENDTHRIFT TRUST. § 742. Introductory : A mere trusteeship, even though it is for the protection of the beneficiaries, ought not, as a matter of taste, if for no other reason, to be called a ' ' spendthrift trust. ' ' Only where there is added to the trusteeship express restraints on alienation is it justifiable to call the creation a spendthrift trust. Whether restraints on alienation, voluntary or involun- tary, or both, are added ought to be determined by the applica- tion of the usual principles of 'construction to the language used. If the restraint is not expressed, no amount of extrinsic evidence or speculation and conjecture as to the testator's or settlor's inducement ought tO be permitted to inject it into the will or settlement. The fact is, however, that our Supreme Court has applied the term "spendthrift trust" to ti'usts where there were no express restraints on alienation. A more detailed analy- sis of these cases and the extent to which they go is important. § 743. Bennett v. Bennett : ** The precise question at issue in this case was whether a legacy in trust at the legatee 's age of forty could be required to be paid to the legatee before he reached forty. The fact that there was a gift over if the legatee died under forty settled any such contention in the negative. But the court went on to hold that the legacy was contingent in the s,ense of being subject to a condition precedent that the legatee survive the age of forty and in aid of that interpretation insisted that the testator had expressed the spendthrift trust purpose. The real argument, it is submitted, was not that there was a 8'i217'IIl.' 434, 442. 861 § 744] ILLEGAL CONDITIONS AND RESTRAINTS [Ch. XXVII restraint on alienation by implication, but that the spendthrift trust purpose made an argument in favor of the contingency of the legacy because it was only by holding the legacy con- tingent that the spendthrift trust purpose could be effected in the absence of express restraints on alienation. Nevertheless, the court said : " It is not necessary that an instrument creating a spendthrift trust should contain an expressed declaration that the interest'of the cestui que trust in the trust estate shall be beyond the reach of his creditors, provided such appears to be the clear intention of the testator or donor as gathered from all parts of the instrument construed together in the light of the circumstances." There was no discretion vested in the ■ trustee with regard to the payment of income or principal to the beneficiary. All the court had before it upon which to find a spendthrift trust was the trusteeship and the gift of income. The court said : ' ' The fact that a ' trustee was appointed and vested with the estate and the beneficiary was given the income only is a circumstance from which the intention of the testator to create a spendthrift trust may be inferred. ' ' § 744. Wagner v. Wagner : ss Here the question was whether the cestui, who was of age, could terminate the trustee- ship of his absolute and indefeasible equitable interest before the time fixed by the testator. It was held that he could not, fol- lowing the Rule of Claflin v. Glafiin.^^ This decision is believed to be sound.8'^ The court had no occasion to pass on the question whether there was a spendthrift trust in the sense of restraints on alienation of the absolute equitable interest. Nevertheless, although there were no express restraints on alienation the court insisted that there was a spendthrift trust. It said : "To create a valid spendthrift trust it is riot necessary that .the cestui que trust should be denominated a spendthrift in the will or that the testator should give his reasons for the creation of it. Nor is it necessary that the will shall in express terms contain all the restrictions and qualifications incident to such trusts. If, upon a consideration of the will, it appears the intention of the testator was to create such a trust, effect will be given to the intention. Where the language used is sufiScient to create a spendthrift trust, we think no inquiry can be made whether the 85 244 IIJ. 101, 111. 88 Ante, § 732. ^T Ante, §§ 732 et seq. 862 Ch. XXVII] PORFEITUKE AND KESTBAINTS ON AUENATION [§ 745 person for whose use it was created was, in faet^ a spendthrift, and the allegations of the bill in this case that the sons were sui juris, compos mentis and sober and industrious business men cannot be considered in construing the codicil," It is, of course, possible that the court was here using "spendthrift trust" only in the sense of an indestructible trust without re- straints on alienation. The later cases, however, make this im- probable. ' § 745. Wallace v. Foxwell: ^^ Here the court held that the interest in question was not subject to a. sale in bankruptcy and this was based upon the fact that a spendthrift trust was created. Thus the existence of a valid restraint on involuntary aliena- tion was directly involved. There was, it is submitted, no lan- guage expressly creating any such restraint on alienation. The language of the will was "to pay over to my son, Howard H. Spaulding, and to his wife, Florence B. Spaulding, one-half of the net income of my estate in such proportions as they may sec fit, paying more or less to the other, as they may deem best, during the lifetime of my son, Howard H. Spaulding, and upon the decease of my said son, Howard H. Spaulding, to convey oneialf of my estate to the right heirs of my son, Howard H. Spaulding." What the court did was to find by reference to the extrinsic circumstances, an intent of the testator's induce- ment to place the property beyond the reach of Howard's cred- itors. This appears from the following language of the court: "Considering, in connection with the will, the financial condi- tion of Howard, which was known to ihis father,- and the fact that Howard was a married man twenty-nine years old and then had one child, we find reasons why the testator' might have de- sired to conserve the property by placing it beyond the reach of Howard's creditors and leaving it so his family might receive the income from it. * * * [Quoting from Bennett v. Beii- nett.] It is not necessary that an instrument creating a spend- thrift trust should contain an expressed declaration that the interest of the cestui que trust in the trust estate shal^ be be- yond the reach of his creditors, provided such appears to be the clear intention of the testator or donor as gathered from all parts of the instrument construed together in the light of the circumstances. ' ' • 88 250 111, 616, 618, 626, 628. 863 § 746] ILLEGAL CONDITIONS AND RESTRAINTS [Ch. XXVII § 746. O'Hare v. Johnston: *» This case is consistent with the other decisions of the court. There the question was whether a gift to grandchildren thirty years after the testator's death was contingent on the grandchildren surviving that period. One of the arguments in favor of the contingency of the gift was that a spendthrift trust was created, or at least that there was a spend- thrift trust purpose manifested. The court held that if such were the fact, nevertheless, the arguments in favor of vesting overcame it. But the court intimated in this case that there was no spendthrift trust purpose. It said: "There is nothing in the wording of the will itself as to this trust that indicates that it is of a spendthrift character. We find no restraint on alienation and no discretion as to the payment of income or 'principal." Then the court weighed and balanced the extrinsic evidence as follows: "It is true there is evidence tending to show that the testator had expressed doubts as to the son settling down to business and as to whether he would be able to, take care of himself, and stated that the daughter, while in school, had been accustomed to spend a good deal of money which the father had provided; that she was under age at the time the will was drawn and that both the son and daughter had de- pended on their father for support. But it is also true that this fund referred to the grandchildren as well as the children, and the testator, naturally, could not form any idea as to whether they would need the protection of a spendthrift trust. It is the intention of the testator that decides, under the authorities, the character of the trust. If it is shown that his intention in- dicates a spendthrift trust, the court will not inquire whether the beneficiary is, in fact, a spendthrift. This will does not in- dicate that the testator thought his children were spendthrifts. He gave to each of them valuable real estate and a large amount of other property. In addition to this he gave -them the in- come from the trust fund, which tends strongly to show that he had no suspicions or apprehensions as to their ability to handle their own property * * * the giving of large sums directly to them [the children] indicates that the trust was not of a spendthrift character. There is another reason that could be urged against the view that the testator considered this a spend- thi'ift trust. He would hardly have appointed his son one of S9 a73 111. 458, 468-469. 864 Ch. XXVII] POEFEITUEE AND RESTRAINTS ON AUENATION [§ 748 the executors if he had considered him a person not to be trusted with business matters. We think the conclusion might well be drawn that the reason for creating this trust was based on the desire of the testator to keep his property in his own descend- ants and prevent it from going, in the next generation, to strang- ers to his blood. This trust was certainly an appropriate method for bringing about this result." § 747. Hopkinson v. Swaim*" and Newcomb v. Masters: »! In the former case the main question was whether an indestruc- tible trust was void because it was required to continue too long. Incidentally it was argued that there were restraints on alienation of absolute equitable interests which were void. There was here an express restraint on alienation for the payment of debts. The court, however, seem to have found from the whole context and the ' ' object ' ' of the testator a restraint on voluntary alienation also. In Newcomb v. Masters there was a devise to trustees for the life of the life tenant with no active duties, but with express provisions of forfeiture on alienation by the life tenant. It was held that th^ presence of the provision of forfeiture on aliena- tion did not create a spendthrift trust so as to give rise to active duties in the trustee which would prevent the Statute of Uses from executing the so-called trust, or to create restraints on alienation which would make void a lease made by the life tenant without the perfecting of a forfeiture. ^ This conclusion is sound. A provision of forfeiture on alienation cannot, it is believed, be turned into a mere restraint on alienation, and the presence of a provision of forfeiture on alienation certainly does not provide active duties in the trust so as to prevent the execution of a use by the Statute of Uses. § 748. Conclusion: Taken as a whole the foregoing cases show as Well marked an instance as any where our Supreme Court actually interprets the instrument by finding, not what\ the testator expressed in words, but what was the intention of his inducement. The object and purpose of the inducement is ill these cases apparently made not merely the standard of in- terpretation but the very subject-matter to be interpreted. This 9» 284 111. 11, 22-23. 9i 287 -111. 26. Kales Put. Int.— 55 ggg I § 748] ILLEGAL CONDITIONS AND RESTRAINTS [Ch. XXVII position has been taken without any apparent appreciation by the court of the complete departure from the fundamental prin- ciples of interpreting writings which it involves. "^ 92 Ante, § 123. 866 CHAPTER XXVIII. ILLEGAL AND IMPOSSIBLE CONDITIONS. § 749. When the condition is subsequent and impossible of fnlfiUment or illegal: Under these circumstances the preced- ing estate is never divested. ^ But the later breach of a condi- tion subsequent is not excused -because the fulfillment of the condition has become no longer possible,^ unless this impos- sibility of performance arise because of the act of the person for whose benefit the performance was imposed.* § 750. Where the condition is precedent and illegal or im- possible: In such a case the future interest can never vest.'* In Goff V. Pensenhaf'er,^ there is a suggestion of the recogni- tion of the rule laid. down in Jarman on "Wills,^ that when the condition precedent is impossible, the gift upon a condition precedent takes effect in spite of the non-fulfillment of the con- dition under certain circumstances. It should be observed that these circumstances according to Jarman are : Firsts That the impossibility exists at the time the future interest is limited, and, second, that the testator knows of the impossibility. This can hardly be an exception of any great practical importance. Jarman states as a further exception to the general rule, that the fulfillment of a condition precedent which is illegal only be- cause it is malum prohibitum as distinguished from imilum in se, will not prevent the future interest from taking effect. Curi- ously enough, while the several English cases where this excep- tion has been discussed have declared that a condition, illegal iSt. Louis, J. & Ch, E. E. Co. v. (111.) 276; Jennings 'v. Jennings, Mathers, 71 111. 592; Chicago v. 27 lU. 518; Chicago v. Chicago & Chicago & W. Ind. E. E. Co., 105 W. Ind. E. E. Co., 105 111. 73. 111. 73, 78, semble; Gray v. Chicago, * Jennings .v. Jennings,. 27 111. Mil. & St. P. Ey., 189 111. 400, 409, 518, 522, semble; Goff v. Penson- semile. hafer, 190 111. 200, 210. 2 Sherman v. Town of Jefferson, e 190 111. 200, 210. 274 III. 294. * ^ 6 6th ed. (Bigelow), ,vol. 2, star 3 Jones V. Bramblet, 1 Scam. page 852. 867 § 751] ILLEGAL. CONDITIONS AND RESTRAINTS [Cp. XXVIII as tending to cause the separation of husband and wife, is merely malum prohibitum, yet they have strained, in order to avoid the alleged exception, to construe the condition subsequent, rather than precedents In Ransdell v. Boston,^ our Supreme Court seems very sensibly to have construed the condition tend- ing to separate husband And wife, as precedent. Accordingly, it was held that the gift to the son, to take effect upon the per- formance of the condition {viz: getting a divorce) could not be enforced. No authority is to be found countenancing any distinction between conditions malum prohibitum and malum in se. § 751. What conditions are illegal — Conditions in restraint of marriage: One, case in our Supreme Court, Shackelford v. Hall,^ has covered all of this subject that has been dealt with in this jurisdiction. That case affirmed, by way of dictum, the doctrine that conditions in total restraint of marriage were in general void, except in the case of a devise to the testator's widow.i" The same case also affirmed by way of dictum, that in case of partial restraints on marriage where the gift is of per- sonalty and there is no gift over, the condition is merely in terrorem and may be entirely disregarded. The actual decision in this case touched a most unusual point. It was conceded that a condition in restraint of marriage till the devisee reached twenty-one, was valid and would be enforced when attached to real estate. The logical result, however, of this admission was avoided because the condition was attached to a gift to all the heirs-at-law of the testator, and it was not proven that the complainant, who was attempting to take advantage of the breach of condition, had given to the particular heir, any notice. of the condition. The case, therefore, fell within the rule of the English authorities as stated by Jarman,!* "that where the devisee on whom a condition affecting real estate is imposed is also the heir-at-law of the testator, it is incumbent on any person who would take advantage of the condition, to give him notice thereof; for as he has, independently of the will, a title 'Brown v. Peek, 1 Eden 140; lo Becker «. Becker, 206 111. 53 Wren v. Bradley, 2 DeG. & S. 49; (gift over on widow's remarrying In re Moore, 39 Ch. Div. 116. valid). 8 172 111. 439. " Jarman on Wills, 6th ed. (Bige- 9 19 111. 212, low)', vol. 2, star page 853. 868 Ch. XXVIII] illegal and impossible cbNDITIONS [§751 by descent, it is not necessarily to be presumed from his entry on the land, that he is cognizant of the condition." ^^ 12 The following interesting ac- count of the way in which the de- cision in ShacMeford v. Hall was reached, is told by John Dean Ca- ton, ex-Justice and Chief Justice of the Supreme Court of lUinois, ia a volume entitled "Early Bench and Bar of Illinois," at pages 200 to 203: "The only other case to which I shall refer is that of Shackle- ford V. Hall, 21 [19] 111. 212. (A bad mistake was made by the re- porter in this case; the position occupied by the several parties is misplaced.) In this a question was presented which had never before been considered in this country, and very rarely in England. " 'The facts of the ease show that all of the devisees of the estate in remainder, now in controversy, were the heirs at law of the tes- tator, and as isueh heirs at law had an expectation of the estate. In the absence of the will each would have been entitled to his or her re- spective proportions of it according to our statute of descent. ' The tes- tator having devised the estate in his will precisely as the statute would have cast it in the absence of a will, imposed the subsequent condition that if either of his chil- dren should marry before attaining the age of twenty-one years, he or she should forfeit the estate thus be- queathed. Mrs. ShacMeford did not choose to wait until she was twenty- one years old, and so was married before that time. Her brother, Henry H. Hall, then 'filed a bill to declare the forfeiture, which, upon hearing in the Circuit Court, was dismissed, and thence was brought to the Supreme Court. Upon the arguments for the complainant, the plaintiff in error, the violation of the condition subsequent was relied upon, and really that was about all he had to say in the opening. Tor the defense it was claimed that the condition was in restraint of marri- age, and therefore void; but to this a conclusive answer was given that a reasonable restraint was not only proper but commendable, and that a restraint to the age of twenty: one years, or even a greater age, was not unreasonable, and upon this the case was submitted. So soon as we reached the conference room with the record, Breese broke out and said: 'That brother is a mean fellow; yes, he's a great ras- cal, and we must beat him if pos- sible. Now, Caton, how can it be done?' I replied that the law re- ferred to on the argument was cer- tainly all in his favor, and I didn't remember any law to controvert that, and Judge Walker was equally at a loss to find any way to get around it. I then stated that dur- ing the argument there seemed to be, as if it were floating in the atmosphere, some intangible, unde- fined idea that I had seen some- thing somewhere, some idea, derived from something I had read some time, probably when I was a stud ent, when reading some text book, that might have some bearing on the case, but what it was I could not say. It was but a vague, iu definite impression, and seemed rather like a fleeting dream than a tangible idea; that I felt confident that I had never seen a case from whkh that thought had arisen, and 869 752] iUjBgal conditions and restraints [Ch. XX VIII § 752. Conditions to induce husband and wife to live apart or to get a divorce: Such conditions are illegal in general. that I felt no assurance that there ■was any principle laid down in the books, in any way qualifying the decisions which seemed to be so directly in point, holding that this condition subsequent was valid. "Breese then picked up the rec- ord from my desk, placed it in my hands, and said: 'You take this record and hang on to the tail of that idea till you follow it up to its head, until you find some law to beat this unnatural rascal, who would cheat his sister out of her in- heritance just because she wanted to get married a few months before the time fixed by the old man.' "I took the record home with me, and after I had finished writing opinions in all my other cases I took up this. I examined carefully all the Digests in the library, and went through the English reports. I sought thoroughly, without finding a single word bearing in any way upon the case, still believing that there was something somewhere that would throw some light upon it on one side or the other. I took down Jarman on Wills, and went home determined to read every text book in the library, on that subject be- fore I would give up the search, and commenced reading at the very beginning, and then proceeded very deliberately page by page until I had got, perhaps, two-thirds of the way through the book, when I read a short paragraph which did not at first attract my attention particular- ly, and I passed on ; but before I ^ had finished the next paragraph the previous one began to impress itself upon me, and I looked back and read it again, and the more I studied it the more I thought it contained something to the purpose. It referred to several old Englisk cases, the reference to which I took down, and made my way to the library as soon as possible, impa- tient to see what these references would develop. In less than an hour I found the law to be as well settled, as any other well recognized principle of law, that where a tes- tator devises an estate to his heir accompanied with a condition of forfeiture, a breach of that condi- tion shall not work the forfeiture, unless its existence is brought home to the knowledge of the heir, and this rule applies as well to convey- ances by deed as by devise. I still - think it a little remarkable that these cases, although few and most - of them very old, are not found re- ferred to in any of the Digests which I have consulted, and that no such case appears ever to have arisen in any of the courts of the United States, or in later times in England, and it is probable that to-day this case stands alone in the American reports. "When I read my opinion at the next conference Judge Breese espe- cially manifested great satisfac- tion at the result of my investiga- tions, and walked across the room and patted me on the back, saying, 'Well done, my good boy,' and seemed not less pleased at the stric- tures I had expressed in the latter part of the opinion upon the con- duct of the hard-hearted brother, as he termed him, and in this expres- sion we all cojieurred." 870 Ch. XXVIIl] ILLEGAL AND IMPOSSIBLE CONDITIONS [§752 This was the dictum of Bansdell v. Boston.^''- In that case, however, the court, having regard to competent extrinsic evi- dence (viz: that long before the testator's dea|;h, the husband and wife had lived apart and that divorce proceedings had been pending) construed the will as merely making "one pro- vision for him [the son] in case they were not divorced, and another if they were." It may well be asked whether the dis- tinction attempted in this case was sound. The will gave the son only the rents and profits for life if he were not divorced, and the fee if he were. Is the condition to be considered void or not, according to the motive of the testator, so that if he makes a condition with no motive to separate the husband and wife, it is valid? Is not the true principle, that the condition is void or not according to its nature and probable effect? If so, it would seem that the condition involved in Bansdell v. Boston, was illegal.** 13 172 lU. 439, 445. " See the following cases where the question arose as to the illegal- ity of conditions precedent and sub- sequent: St. Louis, J. & Chi. B. B. Co. V. Mather's, 71 111. 592; Gray V. Chicago, Mil. & St. P. By., 189 111. 400; Lyman v. Suburban B. E. Co., 190 111. 320; "Wakefield v. Van Tassell, 202 111. 41. 871 INDEX [Keferences are to sections. The letter n after a section number directs atten- tion to the footnotes^ of that section. ] ABUTTING 0WNEE8 ON STREETS, RIGHTS OP: (see Dejhoation.) upon the vacation of a statutory dedication: in the absence of statute 287 the acts of 1851, 1865, and 1874 ? 288 their effect and constitutionality: the wider and narrower meaning of these acts 289 these acts only operate in their narrower meaning, be- cause in their wider meaning they would be unconsti- *' tutional and unjust 290 are these acts in their wider meaning unconstitutional or unjust? a difficulty about opening this question. 291 such acts are' neither unjust to the dedicator, nor contrary to public policy. 292 their constitutionality 293 retroactive effect of these acts: when their narrower meaning is adopted; < . . . 294 upon their wjder meaning ■ 295 application of these statutes in their narrower meaning to the case of vacations of streets, in canal trustees' sub- , divisions: introductory , , ■. 296 power of canal commissioners ' and canal trustees to dedicate streets ■ , 297 upon such dedication the fee passes, leaving a right to enter in the dedicator in case of vacation 298 upon the vacation of a canal sub-division the fee in the street should go to the abutting owners 299 upon the ' vacdtion of a common law dedication 292 AOCELEEATION: of remainders and springing executory devises 599 ACCETJED SHARES: 608 ACOTJMULATIONS: of .interniifediate' inct)me. . i 207 other than for charity, validity of 699 for charity, validity of t, 700 , 873 INDEX [Hefcrences are to sections. The letter n after a section number directs atten- tion to tile footnotes of tliat section.] ADJUDICATION: ' * method of securing, that contingent remainder has been destroyed 319 ADOPTED CHILDBEN: how far included in gifts to "heirs," "issue" or "children": problem stated and principles to be applied 584 analysis of the cases with reference to whether the adoption act can be construed as sufficient to give the ado^pted person the status of an "heir," "child" or "issue" 585 analysis of the cases with reference to whether the language of a will, settlement or insurance policy is to be interpreted as including all persons who acquire the status of "heirs," "children" or "issue," no matter in what manner 586 the construction given to the word ' ' heirs " 586 as to the construction of the words ' ' children " or " issue ' ' in a will, settlement or insurance policy 387 the word "children" or "issue" in a will, settle- ment or insurance policy executed while a general adoption act was in force and by, or procured by, the adopting parent, primarily and in the absence of a special context to the contrary, includes a per- son who obtained by adoption the status of a child 587 the word "children" or "issue" in a will, settle- ment or insurance policy executed while a general adoption act was in force, and even though the same be executed or procured by one other than the adopting parent, p'rimarUy and in the absence of a special context to the contrary, includes a person who obtains by adoption the legal status of a "child" or "issue" 588 the foregoing proposition is not controverted 589 by the exception in the adoption act providing that the adopted child "shall not take prop- erty expressly limited to the heirs of the body or bodies of the parents by adoption" 589 by the Massachusetts Act of 1876 which expressly excludes the adopted child from taking under the designation of "children" in the will or settlement of one other than the adopting par- ent, unless there is an express intention that such child shall be included 590 by those cases where the adopted child was ex- cluded because the wiU or settlement was ex- ecuted long before there was any adoption act in force 591 874 INDBX [Keferences are to sections. The letter » after a section number directs atten- tion to the footnotes of that section.] ADOPTED CHILDEEN— Continued. by cases where the special context of the instru- ment shows that ' ' children " or " issue ' ' meant a class composed of those who obtained their status by actual birth only 592 it is controverted by two cases — one from Maine and the other from Winconsin 593 in the primary meaning to be placed upon "children" or ' ' issue " in a will, settlement or insurance policy, no distinction is to be made between the instrument executed or procured by the adopting parent and one executed or procured by a stranger 594 quaere whether the fact that when the will, settle- ment or insurance policy is executed there is no general adoption act in force will prevent the word ' ' children ' ' from including a person adopted under a subsequent adoption act. 595 ADMINI8TEAT0B WITH THE WILL Al^NEXED: survival of power to 621 when a foreign 621 can he file a bill for the appointment of a trustee to exercise a power 621 ADVEB8E POSSESSION: against reversioners and remaindermen: where one enters under a conveyance from life tenant: where one enters under a conveyance purporting to trans- . fer the life estate only , 383 where "one enters under a conveyance by the life tenant purporting to transfer the fee 384 where life tenant disseised and remainder is vested: results reached by the cases generally 385 what estate does the disseisor of the life tenant have after the statute has run against the life tenant only 386 Illinois cases apparently contra where the life estate is that of a husband by the marital right in his wife 's fee 387 before the first Married Woman's separate prop- erty act 387 effect of the Illinois Married Woman's separate property act of 1861 388 Castner v. Walrod 388 Enos V. Buckley 389 where the disseisor of the life tenant enters under a void guardian's sale of the reversioner's interest.. 390 875 INDEX IKelerences are to sections. The letter n after a section number directs atten- tion to the footnotes of that section.] ADVERSE POSSESSION— Continued. Nelson v. Davidson 390 Field V. Peeples , 391 miscellaneous problems 392 suppose the life estate is released to the vested re- mainderman, or both the life tenant and the vested remainderman convey to a third person 392 it becomes important in applying the statute of limita- tions to determine whether a life estate is subject merely to a forfeiture for a breach of condition, or whether it comes to an end by express limitation before the life tenant's death 393 suppose the remainderman is also interested in the life estate 394. where the remainder is contingent: the statute cannot begin to run against the remainderman till the event happens upon which the remainder is to vest 395 where the life tenant is bai-red by the statute will a legal contingent remainder be destroyed; 396 where the adverse claimant has no notice, actual or construc- tive, of the instrument creating the life estate 397 of mortgagor against mortgagee 217 n AETER ACQUIRED TITLE: I passing by warranty 321-323 ALIENATION: (see TRANsrEB.) ALTERNATIVE LIMITATIONS: 305, 506 ANTICIPATION: clauses against, in married women's settlements 737 n APPOINTMENT: (see Powers.) ASSAULT AND BATTERY: (see Trespass.) right to possession may be a defense to 270 ASSETS: appointed property as 638 ASSIGNMENT: (see Transfer.) covenant against ' 279 Dumpor 's case 279 of heir's expectancy. . . ; . ; '.''. 374 condition against, in lease 254, 715 876 INDEX [References are to sections. The letter n after a section number directs atten- tion to the footnotes of that section.] ATTOENMENT : moat fully dealt with 43, 379 means by which livery of seisin was given 451 not necessary when conveyance by bargain and sale or covenant to stand seized 452 necessity of, never generally recognized in Illinois 455 BAEG-AIN AND SALE: as a mode of conveyance 60, 452 no attornment necessary 75, 452 what amounts to a 456 effect of Statute of EnroUments 60, 456 must it be under seal 64, 456 deeds in this state take effect as 456 life estate may be limited to the grantor by 70, 464 to persons not in esse 72, 74, 475 deed reciting a consideration may operate as ^ 64, 476 BASE FEE: (see Fee Simple.) BOEASTON'S CASE, ETJLE IN: ■ 334 CANAL COMMISSIONEES AND TEUSTEES: jiower to dedicate streets 297 effect of dedication by , 298 rights of abutting owners upon vacation of subdivision made by. . 299 CANAL LANDS, (see Canal Commissioners and Trustees.) CEMETEEY LOT: trust for perpetual care of 660 CHAMPEETY: conveyance of a contingent remainder was 480 CHANCEEY: (see Equity.) suit in, sufficient declaration of forfeiture ; 277 court of, may be donee of a power 444 court of, has power to appoint new trustees 613 supplies trustees for a charitable bequest when none are named 697 » CHAEITY: trusts for, when void for remoteness 697, 698 what is a gift to 697 « gift to, when it fails for indefiniteness or uncertainty in bene- ficiary I 697 n trustees for, supplied by equity when none named 697 n accumulations for, validity of 700 877 » INDEX [Ueferences are to sections. The letter n after a section number directs atten- , tion to the footnotes of that section.] CHATTELS PERSONAL: (see Peesonal Property.) trespass to, defence of right of possession 270 (see Trespass.) consumed in the using — future interests in 486 CHATTELS REAL: (see Terms for Years, Personal Property.) future interests in 485-488 CHILD EN VENTRE SA MERE: contingent remainder vests in when 326 "CHILDREN": (see Ciw\.sses.) construed to mean ' ' heirs " 414 conveyance to, "born and to be born" ; 452, 476 meaning of ' ' youngest child " 515, 569 who included in 140 when ' ' issue ' ' construed ' ' children " 551 when ' ' heirs ' ' construed ' ' children " 552, 574 n when, includes ' ' grandchildren " 574 when illegitimates included in gift to 140 how far adopted child included in (see Adopted Children) 587 et seq. CLASSES, LIMITATION TO: remainders to, whether vested or contingent 308, 335 et seq. 353, 523, 524 a gift to a class distinguished from a gift to individuals: importance of this question 553 cases where the class may increase or diminish even after the testator 's death 554 cases where the class may increase or diminish up to the testator's death, but cannot increase afterwards, or may neither increase nor diminish afterwards 555 suppose the gift is to the "children" of a person deceased at the time the will is executed 556 Volunteers of America v. Peirce 557 validity of: where no interest is limited preceding the gift to the class.. 445, 451, 452, 453, 461, 558 under the feudal land law 26, 473 by devise after the Statute of Wills 474 by a conveyance inter vivos which can take effect as a bargain and sale or otherwise by way of use 74, 475 if the conveyance is to "the children of A, born and to be born" and A has at the time of the con- veyance no children, can the after-born children of A take 475 suppose A has at the time of the conveyance a child in esse 476 878 INDEX [ References are to sections. The letter n after a section number directs atten- tion to thfi footnotes of tliat section.] CLASSES, LIMITATION TO— Continued. suppose that by a deed the limitations are to A for life, remainder to the children of A, "born and to be born," and one child is in esse at the time of the conveyance ,. . .' 477 by the ereatioA of equitable interests in favor of the class 478 where the gift to the class is a remainder 559 which vesta in interest upon the birth of a member of the class and Where it is expressly provided that afterborn members of the class are to take : 559 where the remainder to the class is subject to a con- dition precedent in form, which may not happen until after the termination of the life estate 560 rule in Wild's Case: where a devise is made to "A and his children" and at the time of the devise and of the testator's death A has chil- dren 561 where a devise is made to " A and his children ' ' and A has at the time of the devise no children 562 determination of classes: distinction between the rules for the determination of classes and those which settled whether the gift to the class is con- tingent upon the members of the class surviving the period of distribution 563 rule when the period of distribution is the death of the tes- tator .■ 564 rule when the period of distribution is the termination of a life estate 565 suppose the property to be distributed to the class is subject in part to a life estate and the gift to the class is in terms immediate .-. , 566 rule^wh^n the period of distribution comes because of the hap- pening of a contingency to a member of |jhe class 567 where there is a contingent gift to the children of A who reach twenty-five '■ 567 where the gift to the class is vested. ^ 568 where the gift is to children of A, to be divided among them when the youngest reaches twenty -one 569 where the gift is after a life estate to such, children of A as reach twenty -one 570 in case of the statutory remainder in place of an estate tail. . 408 meaning of "heirs" in a limitation to the testator's heirs or the heirs of a living person (see Heirs) 571-574 meaning of "issue" in gifts to issue (see Issue) 575-583 adopted children, how far included in gifts to "heirs," "issue" or "children" (see Adopted Childeen) 584-595 , 879 INDEX [BeferenceB are to sections. The letter » after a section number directs atten- tioh to tbe footnotes of tliat section.] CLASSES, LIMITATION TO— Continued. application of rule of destructibility' of contingent remainders to 98-103, 315 distinguished from operation of rules for the determination of the class . ., 104 rule against perpetuities applied to gifts to 677-681 postponed enjoyment-in gift to, valid 568 COMMON LAW: (see Feudal System op Conveyancing.) statutory adoption in Illinois of the common law of England. . . . 453 CONCUEBENT LEASE: 241 CONDITION, ESTATES UPON: (see Eight of Entry toe Con- dition Broken.) CONDITIONS: illegal and impossible 749-752 in restraint of marriage , 751 to induce divorce .-. 752 CONDITION PEECEDENT : to the taking effect of executory devises and bequests 598 CONDITIONAL LIMITATION: (see Shifting Interests.) distinguished from a possibility of reverter 301 CONFLICTING PEOVISIONS, CONFLICT BETWEEN THE PEEMISES AND THE HABENDUM: courts attempt to reconcile apparently conflicting clauses . . ■ 177 where an actual conflict occurs '. . ; . i . . . . 178 the rule as to deeds 178 the view of the common law ■ 178 common law rule, how far modified 179 where the premises provide' for the lesser estate and the habendum for the larger 179 where the premises provide for the larger and the habendum the lesser estate 180 modification of the common law rule by statute 180 tendency, apart from statute, to modify the strictness of the cqmmon law rule 181 where devises are involved 182 CONSIDEEATION: cannot be denied when recited in a deed under seal .62, 456 of blood, in covenant to stand seized 63, 456 valuable, in a bargain and sale '••.59, 456 covenantee must be within, in covenant to stand seized. . . . . . . ... 73 meritorious, by appointee under a power. ^ ....'.....'.' . 639 880 INDEX [References are to sections. The letter n after a section number directs atten- tion to the footnotes of that section.] CONSTITUTIONAL LAW: questions of, already passed upon will be considered in a suit between other parties 291 validity of acts in favor of abutting owners on vacation of stat- utory dedication 289-294 validity of acts of limitation applicable to mortgages 231 how far the landlord and tenant act, which creates new causes of forfeiture, may be retroactive 254 validity in general of acts having retroactive effect 239 validity of statute on entails 293 CONSTRUCTION OF STATUTES: (for construction of partic^ilar acts see Statutes.) I rule that when a statute from another jurisdiction is enacted here, decisions of the foreign jurisdiction construing it, are fol- lowed , 453 n will not be given retroactive effect, when 239, 293, 294, 295 CONSTBUCTIVE TKUST: (see Trusts.) CONTINGENCY: question of interpretation where question is as to nature of; 141 contingent interests after terms: 31-33 by way of use 80, 307 contingent future interests: , inalienability ■...•.... 48 CONTINGENT RBMAINDEES: ... defined and examples given .27, 96, 309 in double aspect..,. ■.......;...; ;..... 307, 445 after terms for years! 33, 80, 85, .307, 452 is the contingent remainder valid or invalid under the feudal law 28 distinction between vested and contingent remainders 29, 79 by way of use and devise ./ ; 77-79, 85 trustees to preserve 78 rule of destmctibility of 79 " the continuation of the rule of destruetibility of contingent re- , mainders after springing and shifting future interests became valid and indestructible , . , 97 application of the rule of destruetibility in the modern cases 98 where the remainder is limited to an individual 98 where the remainder is limited to a class ;..... 98 where, when the life estate terminates, no member of the class has attained a vested interest .....,.,.. 99 where, when the life,, estate terminates, one, member of the class has attained a vested interest. ...■.■.,.-. 100 Kales Fut. Int.— 56 881 INDEX [References are to sections. The letter n after a section number directs atten- tion to the footnotes of that section.] CONTINGENT REMAINDEKS— Continued. typical cases stated and analyzed 100 state of the English authorities 101 where the limitations are to "A for Ufe, remain- der to such children of A as reach twenty-one ' ' 101 where the limitations are to "A for life, remain- der to such children of A as, either before or after A's death, reach twenty-one " 102 the rule of the Massachusetts Supreme Court 103 where the remainder is to a class the operation of the rule of destructibUty must be distinguished from the operation of rules of construction for the determination of the class. . 104 application of the rule of destructibility where the future interest is limited on such events that it may take effect either as a remainder or as a shifting interest putting short a prior vested remainder in fee 105 abolition of the rule of destructibility by legislation 106 rule of destructibility in force in Illinois 310 method of operation of the rule: by the premature destruction of the life estate by metger. . . . 311 by forfeiture of the life estate 312 by the expiration of the life estate in due course before the ' happening of the event upon which the contingent remainder is to vest • '. . 313 the partial destruction of a contingent remainder occurs where the life estate terminates before the contingency happens as to an undivided interest only 314 where the remainder is to a class and has vested in one or more members Of the class before the termination of the life estate, the rule of destructibility does not apply to the interests of the other members of the class 315 the rule of destructibility does not apply where the interests are equitable 316 the rule of destructibility appears not to be called into operation when the vridow, having a life estate by will, renounces 317 does the rule, of destructibility apply to the statutory remainder created by the Statute on Entails 318 methods of securing an adjudication that a contingent remainder has been destroyed 319 effect of rule of destructibility to prevent violation of Rule against Perpetuities 687-689 inalienability of: inalienable by conveyance inter vivos 320 extinguishment by release 320a operation of the doctrine of estoppel by covenants of war- ranty 321 882 INDEX I References are to sections. The letter n after a section number directs atten- tion to the footnotes of that section.] CONTINGENT EEMAINDEES— Continued. where the remainder vests in the warrantor 321 where the remainder vests in the warrantor 's heir 322 case stated and considered on principle 322 the state of the cases in this State makes the law uncertain 323 alienable by descent 324 alienable by devise , 325 equitable contingent remainders , 88 alienability of, accomplished by New York statutory defini- tion of a vested remainder 357 jurisdiction of equity to give specific performance of transfers of 374-377 when it vests when remainderman a child en ventre sa mere 326 problems of construction in determining whether a remainder is vested or contingent 329-356 New York statutory distinction between vested and 357-368 descent of, from whom traced 380-382 adverse possession against 395-396 to a class and the Bule against Perpetuities 688 whether subject to the Bule against Perpetuities 662 partition of: (see Partition.) CONTRACT: rescission of, for support in a deed of conveyance 221 creation of future interests in chattels personal by 485 subject to rule against perpetuities '. . . . 664-665 CONVEESION: of personal property subject to future interests 492-493 CONVEYANCES: (see Construction, Deeds, TKANsrEE, Uses, Wills.) effect of statutory form of, to create springing and shifting future interests 457, 458 to the grantor I 307, 464 construction of — whether they take effect under the statute of uses or at common law 75, 723 of executory devises — in equity, must show an intent to transfer the future interest 481 by record 43 tortious ■ • . 46 CONVEYANCING, SYSTEM OF: (see Feudal System, Uses.) the feudal or common law 38 et seq., 451, 464 development under the statute of uses 54 el? seq., 452 883 INDEX [References are to sections. Tbe letter n after a section number directs atten- tion to the footnotes of that section.] CONVEYANCING, SYSTEM OP— Continued. in lUinois 453, 455, 456, 457 character of changes in 459, 460 COPABCENEES: 22 COVENANT: against assignment or sub-letting: waiver of breach of 279 valid •■ 715 of renewal of lease — whether void for remoteness 6,65 to stand seized: a mode of transferring title 63, 452 no attornment required 452 what amounts to 456 to persons not in esse 456 COBPOEATIONS: charitable bequest to one not yet formed .- 698 on dissolution of charitable, do lands escheat or go to the donor. . 302 foreign, exercise of power by 613 CREDITOR: (see Restbaints on Alienation.) povper of, to reach appointed property 638 CREDITOR'S BILL: to reach equitable contingent remainder 376 CROSS LIMITATIONS: implication of 600-601 ' ' survivor ' ' construed ' ' other " 602-607 CURTESY: 20 CY PEES: doctrine of, in gifts to charity 697 DECREE : when it binds contingent remainderman by representation. ...... 400 DEDICATION: common law right of abutting owner 292 effect of 293 deed of abutting property passes fee to center of the way 287, 292 statutory : requirements of 292 interest of the dedicator 284, 286 (see Conditions.) 884 INDEX [References are to sections. The letter n after a section number directs' atten- tion to the footnotes of that section.] , DEDICATION— Continued. how far it is transferable 285, 287, 293 eondition attached to fee simple conveyed by 228 rights of abutting owners 287, 299 (see Abutting Owners.) I by canal commissioners or trustees, effect of to pass fee 298 ^ DEEDS OF CONVEYANCE : effect of consideration recited in , . ' .456, 476 whether they take effect at common law, or under the statute of uses, or by modern statute. ; .455, 456, 457, 723 construction of, when conveying land abutting on a highway. .287, 292 good to limit an estate to the grantor , 464 creation of shifting interests by ...» 443-461 (see Shifting Interests.) creation of springing interests by 466 (see Springing Interests.) conveyance by, to a class 445, 451/452, 453, 456, 476 (see Classes.) limiting an estate to commence at the grantor's death. ...... .463, 466 creation by, of future interests in chattels real and personal 485 form of, in use in Illinois . ; 456 forfeiture on alienation by 718, 719 recording of .......' 459 transfer by.: of executory devise 480 of possibility of reverter 301 n of dedicator's right in a way dedicated by statute 287 (see also Transfer, Eemainders, Contingent Eemainder, Reversions.) DESCENDANTS: coextensive in meaning with "issue". 575 DESCENT: ' distinction between, and purchase ; 38 from whom traced. 39, 380-382 Dy Blaokstone 's Canons, and by statute J 40, 409 of contingent remainders 324 of executory devises and future uses 479 effect of see. 11 of the Illinois statute on. ; 534, 598 meaning of word "heirs" (see Heirs.) , statute on, governs amount when heirs take -....; 571 rule for, at common law, of an estate tail. ; 409 who take the statutory remainder in place of the estate tail 409 when heir takes' by, though ancestor make a will devising to him 723 885 INDEX [References are to sections. The letter » after a section number directs atten- tion to tlie footnotes of that section?} DESCRIPTION OF PBOPEBTY DEVISED: where the description of the land devised is precisely and in all particulars applicable to an existing piece of land no ambiguity arises and, though the extrinsic evidence shows beyond ques- tion a mistake in using the description expressed, that descrip- tion must prevail as a matter of construction 135 where, however, the description of the land devised is not pre- cisely and in all particulars applicable to an existing piece of land, the description is not sensible with reference to the ex- trinsic circumstances and that part of the description which, in view of admissible extrinsic circumstances, appears to be false may be rejected under the rule falsa demonstratio non nocet. . . . 136 the principal difficulty is in determining whether or not the de- ' seription of the land devised is precisely and in all particulars applicable to an existing piece of land 137 after part of a description has been rejected under the rule of "falsa demonstratio" the meaning of what is left must be con- strued and given effect according to the usual principles of con- struction 138 DESTBTJCTIBILITY OF CONTINGENT BEMAINDEBS, BULE OF : (see Contingent Bemaindkbs.) DETEBMINABLE FEE: (see Fee Simple, Possibilities op Ee- VEBTEE.) interest preceding a conditional limitation is not a 301 DETEBMINATION OF CLASSES: (see Classes.) DEVISE: (see Wills; Exeoutoky Devise.) before Statute of Wills 40 under Statute of Wills 84-86 what interests subject to: right of entry for condition broken 240 contingent remainders 325 executory devises and future uses , 479 possibilities of reverter 240 «ne cannot devise to his heirs 723 contingent upon payment of debts 666 et seq. identification of devisee 139-140 description of property devised 135-138 "DIE WITHOUT ISSUE": (see Issue, Gifts on Failure of.) DISCLAIMEB: oral, by tenant for years 233 DISSEISIN: (see Adverse Posskssion.) 46 886 INDEX [Ucferencee are to sections. The letter n after a section number directs atten- tion to the footnotes of that section.) DISSOLUTION OF CHARITABLE CORPORATION: do lands escheat upon 302 DISTRIBUTION: (see Classes, Determination op.) period of, when present absolute equitable interest is to a class with a postponed enjoyment. 568, 678 DISTRIBUTIVE CONSTRUCTION: where gift to testator 's heirs at law 573 where gift is after a person 's death 206 DIVESTING CONTINGENCIES: 596-597 DIVORCE: conditions to induce husband or wife to get, or to live apart . . 750, 752 DOWER: 20 none in reversion or remainder subject to a. freehold 30, 31 arose out of reversion subject to a terra 31 in a fee subject to a conditional limitation over 465, 482, 484 DUMPOR'S CASE, RULE IN: 279 - EJECTMENT : when may mortgagee maintain 217 whether bringing, is proper mode of declaring a forfeiture 244 as a remedy in ease of forfeiture duly perfected 256 ELECTION: necessary at common law to perfect forfeiture of a term for years 278 ENBOLLMBNtS, STATUTE OF: (see Statutes.) does it apply in the United States generally '. . 456 ENTAILS: (see Fee Tail.) ENTRY: not necessary to the termination of a possibility of reverter 300 how far necessary to perfect a forfeitujre 244, 278, 285 to perfect a forfeiture may be dispensed with by agreement 254 how far suitable as a remedy to enforce a forfeiture duly per- fected 257, 277 (see FoErEiTtTEE.) action of forcible entry against one making entry: forcibly 258, 259 peaeeably 260 what entry is peaceable and what forcible 261, 267-269 peaceable, when complete so that one entering may defend the use of force against the one put out 870 bargain and sale of a term wttjjout 452 887 INDEX [EeferenceB are to sections. The letter n after a section number directs atten- tion to the footnotes of that section.] BNTEY, RIGHT OP TOR CONDITION BROKEN: (see Condition, POBFEITUEE, DEDICATION.) distinguished from a possibility of reverter .283-299 not a reversionary right. 283 right of dedicatoi' on a statutory dedication is a 284 how far transferable ' 285 by deed 240* by devise 240 by statute : 293 whether subject to the rule against perpetuities 662 EQUITABLE CONVERSION: (see Conversion.) EQUITABLE DEFENSES:- of mortgagor before default 217 barring of debt an, to mortgagee 's legal title 232 one availing himself of, must do equity 232 EQUITABLE INTERESTS: future interest in 88 transfer of interests in , 88 application of Rule in Shelley's Case to. ./. 429-433 contingent future, not destructible 316 in personal property, valid. . .' : 485 whether future interest in personal property is an 487 subject to rule against perpetuities 663 postponed enjoyment of: ■ (see Postponed Enjoyment.) whether valid 732-738 invalid when it lasts-t'oo long. ...'■...■..._..". : 663, 678-680, 737 do not fall with spendthrift trusts. .......'......•.■.'.■. 738 in gifts to classes /........ 568 invalid when they last too long. .'. 678-680 in trusts to accumulate 69&-70d life estate subject to restraint on alienation 731 • springing and shifting valid ; . . 472 EQUITY: : . jurisdiction of, to set aside and enforce transfer of reversion and remainders: introductory ; '...... 369 ' setting aside transfers of reversions and vested remainders which were indefeasible ;...;.. 370 setting aside transfers of reversions and vested remainders ■ :■. , which, ate defeasible^ ..;:... . . ; . .'. .."... .-.'. ■. 371 suppose the transfer of the reversion or' vested remainder, were by a guardian's sale...:.;...',:'......... ;..'........'.•.. 372 888 INDEX [Heferences are to sections. The letter n after a section number directs atten- tion to the footnotes of that section.] EQUITY— Continued. suppose the transfer of the reversion or remainder were by execution sale 373 specific performance of transfers of contingent remainders as contracts to convey when the remainder vests 374 specific performance of a guardian's attempted transfer of the ward's contingent remainder. 375 equitable execution upon contingent remainders by creditor's bill . . . . ; 376 suppose the interest attempted to be transferred, while in form like a contingent remiander, is equitable and not -legal 377 conclusion i 378 relief against forfeiture in 282 how far equity ,will enforce a forfeiture 232, 277 when equity will aid defective execution 639 when it permits rescission of contract of support. 221 specific performance of contracts in 664-665 transferability in: of contingent remainders 374 of executory devises ; . . . . 481 of expectancy of an heir i 374 gives relief to prevent continuous trespasses. . j 277 jurisdiction of, to break in upon trusts and give power of sale. . . . 647 supplies a trustee for charitable trust when none is named 697 n ESCHEAT: in the feudal land law I 3 are lands of charitable corporation on dissolution, subject to 302 ESTATES: (see Fee Simple, Fee Tail, Liee Estate,' Terms for Years, Joint Interests.) which trustee takes:, (see Trustee.) on condition: (see Eights or Entry tor Condition Broken.) at will: (see Tenancy at Will.) in personal estate: (see Personal Property.) limitation of, by devise. 85 limitation of, by way of use 70-81 by way of trust 88 less than freehold, conveyances of , 45 for life by marital rig'ht 20 by entirety • ■ — • ^^i ^•'•^ nature of question of interpretation where question is as to, created 14:1 limitation of, to the grantor , 70, 464 ESTOPPEL: (see Warkantt.) as a defence to forfeiture. 281 889 [Itetereuces are to sections. The letter n atter a sectioD number directs atten- tion to tlie iootaofea of that section.] ESTOPPEL— Continued, transfer by: of contingent remainders 321-323 of executory devises 480 by lease and release 480 n as a means of passing an after-acquired title 321 et seq. ESTOPPEL AND ELECTION: whether any, when Eule against Perpetuities violated. 704 EVIDENCE: (see Interpretation op Writings.) - EXECUTION SALE : what interests subject to: vested remainders 308, 327 contingent remainders 309, 376 reversions 304 executory devises and future uses 479 equitable 728 equitable execution 376 EXECUTOES: failure to qualify 620 renunciation of 619 power of sale in: existence of 643-646 survival of .618-633 right to exercise by foreign executor, whether natural person ' or corporation 613 joint interests in ' 212 EXECUTORY DEVISES: defined , 85, 442 in general valid 85, 467 the authorities 467 three cases contra 468 Andrews v. Andrews 468 Ewing V. Barnes and Silva v. Hopkinson 469 Ewing V. Barnes and Silva v. Hopkinaon now overruled . . 470 the recent cases have also disposed of the fallacy that because some shifting interests were void for ' ' repugnancy ' ' all mus;t be void 471 gifts over by way of forfeiture on alienation and upon in- testacy 717-725 (see Restraints on Alienation.) when an executory devise becomes a vested interest 482 890 INDEX [References are to sections. Tbe letter » after a section number directs atten- tion to tile footnotes of that section.] EXECUTORY DEVISES— Continued, alienation of executory devises: by descent, devise, release, and sale on execution 479 by a conveyance to a stranger inter vivos: validity at law 480 in equity 481 effect on accumulations, of failure, of the future interest for remoteness , 700 acceleration of springing executory devises 599 indestructibility of executory devises 483 subject to the Rule against Perpetuities 662 executory devisee cannot have waste against the one in posses- sion 399, 494 divesting contingencies and conditions precedent to taking effect of gift over 596-598 interests are not divested unless the event upon which the divesting is to occur strictly happens 596 effect bf the failure of a gift over upon the preceding interest. . . . 597 effect upon an executory devise of the failure of the prior gift. . . . 598 EXECUTORY INTERESTS: contingent remainders are, when indestructible 662 those are, which are neither vested nor contingent 482, whether future interests in personal property are 487 who is entitled to intermediate income 207 et seq. Rule in Shelley's Case does not apply to 89, 429 et seq. in a gift to classes — application of Rule against Perpetuities. , 681-683 transmissible by descent and devise 479-481 descent of, from whom traced 380-382 held vested, when 482 EXECUTORY TRUST: appUeation of Rule in Shelley's Case to 430-433 EXTRINSIC EVIDENCE: (see Interpretation of Writings.) EXPECTANCY: of an heir : may be released to ancestor 374 assignable in equity to a stranger ,. . i . . . 374 FEE SIMPLE: base or determinable fee: whether mortgagee has 230 distinguished from interest cut short by a. conditional limita- tion • 301 ' 891 INDEX [References are to sections. The letter n after a section number directs atten- tion to the footnotes of that section.] FEE SIMPLE— Continued. may be subject to a condition subsequent 216, 217 condition attached to, arising by operation of law 228-232 who may take advantage -of a breach of condition attached to ... . 240 effect of breach of condition attached to 243 to center of highway passes by deed of the abutting owner. . . .287, 292 cut down to an estate tail, when , 469 passes upon dedication by canal commissioners or trustees 298 passes upon a statutory dedication 284 subject to be cut short — dower in 465 mortgagee has a 217 postponed enjoyment of equitable 732-738 resulting estate always a , 465 application of the Eule in Shelley's Case to confer a (see Shki/- LEY 's Case, Rule in) ; words necessary to create, under feudal land law 11 how created at common law and under the Statute of Uses and Wills .70, 153-155 how created under R. S. 1874, ch. 30, sec. 13: the statute 156 cases where an estate less than a fee is limited by express words 157 cases where the primary effect of the conveyance to create a fee was confirmed by the use of the common law words of limitation, i. e., "heirs" 158 cases where the primary effect of the transfer to create a fee was confirmed by the use of expressions other than the common law words of limitation 159 cases where there is a transfer to A simpliciter and no context showing an intent that A shall or shall not take the fee, but wher« under the statute he nevertheless does so 160 cases where the only special context tends to indicate that a less estate than a fee was intended, but where this context is deemed to be insufficient to overcome the primary statutory meaning 161 transfer to A simpliciter followed by a gift "at his decease" 162 transfer to A simpliciter followed by a gift "in case of his death" or some other expression treating A's death as a contingent event 163 effect of gifts over 164 where the limitations are to A simpliciter with a gift or gifts over on A's death and on one or more collateral contingencies, which, however, do not exhaust all the possibilities 164 where the limitations are to A simpliciter; with gifts over On several contingencies which exhaust all the possibili- ties 165 892 I INDEX [References are to sections, The letter n after a section number directs atten- tion to the footnotes of that section.] FEE SIMPLE— Continued. where the limitationB are to X for life, remainder to A simplieiter, -with a gift or gifts over on A's death and on one or more collateral contingencies which do not exhaust all the possibilities 166 where the limitations are to X for life, remainder to A simplieiter, with gifts over on several contingencies which exhaust all the possibilities 167 limitations to A simplieiter with power in A to dispose of an absolute interest in the property, and upon failure to do so, over to B 168 miscellaneous contexts only superficially related — limitations to A and his children and their children 169 limitation to A or his heirs 170-176 conflicting provisions — conflict between the premises and the habendum 177-182 estate which a trustee 'takes 183-193 forfeiture and alienation of 712-729 restraints on alienation of 727-729 equitable: subject to restraints on alienation 789-741 subject to a condition subsequent 12 determinable oj base fee : 13 fee on .a fee .♦307 rule that there can be no remainder in fee after a vested remainder in fee 445, 446, 448, 453, 455, 461 fee on a fee by deed: introduction 443 the Illinois authorities are divided 444 cases in support of the validity of shifting interests by deed 444 cases against the validity of ^ shifting future interests by deed 445 contentions 446 of the eases which seem to hold shifting interests invalid . 446 stated 446 repugnancy 447 the common law rule that a fee cannot be limited after a fee 448 of cases which hold the shifting interest by deed valid . . . 449 reasoning of both lines of oases valid so far as it goes 450 general view 450 the common law system of conveyancing 451 development under the Statute of Uses 452 893 INDKX [References are to sections. The letter n after a section number directs atten- tion to the footnotes of that section.] PEE SIMPLE— Continued. the principles of the common law and of the system of con- veyancing which developed under the Statute of Uses exist side by side as part of the law of Illinois today . . 453 the special issue 454 shifting limitations by deed may be supported here by f oice of the Statute of Uses 455 conveyances by deed in Illinois have never operated under the common law 455 conveyances by deed in Illinois have always taken effect under the Statute of Uses 456 the fact that our deeds in Illinois may operate under the acts of 1827 and 1872 cannot interfere with the validity of shifting interests created by them 457 shifting interests by deed may be supported in Illinois under the acts of 1827 and 1872 458 the tendency to hold shifting future interests by deed invalid is reactionary 459 character of the changes in the law of conveyances 459 the attitude of our Supreme Court 460 the weight of authority in this State is in favor of the validity of shifting interests by deed 461 trend of the recent Illinois authorities 462 springing future interests by deed: • conveyances to take effect at the grantor 's deatli valid 463 the future interest, void at common law, sustained on two theories .' 464 wliich of these two views is correct 465 conclusion 466 FEE TAIL: history of 14-19 modern disentailing conveyances 19 modern statutes dealing with estates taU 19 peculiar situation in Iowa 19 tehant in, after possibility of issue extinct 20 barred by fines and recoveries 17 barred by warranty 17 by way of use 70 by rule in Shelley 's case 565 by rule in Wild's case .561, 562 created by a gift over on an indefinite failure of issue. .469, 544, 549 rule of descent in 409 implication of cross remainders, where limitations are to daughters as tenants in common in tail '. 600 forfeiture upon alienation of 716 894 INDEX [Ueterences are to sections. The letter » after a section number directs atten- tion to ttie footnotes of that section.] FEE TAIL— Continued, creation of: the Statute on Entails 194 words sufficient under the Statute De Donis to create an estate tail 195 in conveyances imter vivos 195 by devise 196 in several cases where the context contained the phrase ' ' heirs of the body ' ' an estate tail was upon the whole context held not,, to have been created 197 suppose the words used are not sufficient under the Statute De Donis to create an estate tail, but are sufficient to express an intention to create such an estate 198 suppose personal property is limited with such expressions, as, if used in a conveyance or devise of real estate, would create an estate tail 199 suppose the limitations of personal property are to "'A and the heirs of his body," or to "A for life and then to the heirs of his body " 199 suppose the limitations of personal property are to "A and his issue " or to "A and the issue of his body " . . 200 the statutory estates in place of estate tail: statutes 402 their operation ,403 the statutory remainder 404 prior to the birth of issue of the donee in tail 318, 404 after the birth of issue of the donee in tail 405 three views as to the character of the remainder and the persons entitled to it 359, 405 state of the decisions of the Illinois Supreme Court. . 406 assuming that the statutory remainder is limited to "chil- dren" 407 can the remainderman be restricted to a special class of children in the case of an estate tail special 407 at what period of time does the class close 408 if the language of the statute were taken literally, who pre- cisely would be entitled to the remainder 409 effect of feoffee to uses having 66 forfeiture on alienation of 716 limitation after and Eule against Perpetuities 696 FEOFFMENT: (see Livekt op Seisin, Feudal System op Land Law.) FEUDAL SYSTEM OF LAND LAW: in general ■ 1-48, 451 implied condition upon which feudal tenant held 235 895 INDEX [Ueferences are to Sections. The letter n after a section number directs atten- tion to tbe footnotes of that section.] FEUDAL SYSTEM OF LAND LAW— Continued. doctrine of, had no application to terms for year 235 feoffor cannot limit an estate to himself under '. 307 required the destruotibility of certain contingent future inter- ests 28, 77, 97, 310 etseq. forbade fees on fees or shifting future interests 26, 448, 449 springing interests invalid under 26 in Illinois: ' feudal mode of conveyance in force but not in use 453 feudal rules of eonveysincing regarding the creation of future interests in force in 453 feudal rules regarding remainders survive in, only as an aca- demic possibility '. 455 law of remainders part of. . . ., 25, 29 vested remainders under 29 contingent remainders under 27-29, 96-106 place of terms for years in 21, 235 abrogation of, after the Statutes of Uses and Wills 83, 307, 453, 458, 459 riNES: :; 44 as a means of barring estate tail 17 FORCIBLE : what entry is 261, 267-269 FOECIBLE ENTRY AND DETAINEE: whether action of, sufficient declaration of forfeiture 245 action of, as a remedy for forfeiture duly perfected 256 action of, by a tenant ejected from leased premises: introductory 257 where the entry is forcible: before 1872 258 since 1872 259 where the entry is peaiceable 260 what entry is peaceable and what forcible. . .' 261 is right of possession involved in action of 260 is title ever involved in action of 269 n statutes of, construction of: J Illinois act of 1827 258, 266 Illinois act of 1872 259 of English acts 258, 266, 270 of Massachusetts acts 259 demand for possession under statutes of 245 n FORFEITURE: (see Conditions, Construction.) " ' what estates may be 'subject to: fee aimpljB 216, 228 896 INDEX [Keferences are to sections. The letter n after a section number directs atten- tion to the footnotes of thalt section.] FOEFEITUEE— Continued. mortgages 217, 229-232 t^ms for years 218, 233-239 not subject to, for breach of stipulation or covenant unless there is an express condition 234-236 tenancy at sufferance 233 n mode of perfecting a forfeiture: of freehold estates ! 244 of estates less than freehold : the common law mode of forfeiture 245, 277, 285 effect of Illinois statutes upon the common law modes of forfeiture : in case of default in payment of rent: act of 1827 246 sec. 2 of the act of 1865, appearing also as sec. 9 of the act of 1873 247 sec. 4 of the act of 1865 248 see. 8 of the act of 1873 249 how far has a forfeiture by a common law de- mand for rent been abolished by the acts of ^ _ 1827, 1865 and 1873 250 for cause other than default in the payment of rent: sec. 2 of the act of 1865, appearing afterwards as sec. 9 of the act of 1873 251 how demand may be made or notice served 252 retToactive effect of the acts of 1827, 1865 and 1873 253 mode of perfecting a forfeiture as altered by the agree- ment of the parties: provisions for .the benefit of the landlord 254 1 provisions for the protection of the tenant 255 remedy in case of forfeiture duly perfected: by ejectment or forcible detainer suit 256 actual entry upon the land: action of forcible entry and detainer for possession by the one put out: introductory 255 where the_ entry is forcible: before 1872 258 since 1872 259 where the entry is peaceable 260 what entry is' peaceable and what forcible 261 how far may the one put out sue in trespass g. c. f., assault and battery and d,. 'b. a.: three possible views 282 the Illinois cases: first indications . . . .' 263 Kilea Fut. Int.— 5 7 °" ' INDEX V [UelereneeB are to sections. The letter n after a section niunber directs atten- tion to the footnotes of that section.] FOBFEITUEE— Continued. Eeeder v. Purdy: its real scope 264 subsequent cases: Fort Dearborn Lodge V. Klein 265 the ground of the rule laid down in Beeder V. Purdy '. 266 distinction between forcible and peaceable entry 267 the vice of Beeder v. Purdy. 268 the virtue of Fort Dearborn Lodge v. Klein 269 some further questions 270 view of the Appellate Court in the first district: ' before the Klein case 271 since the Klein case: ,in trespass's, o. f.: Judge Gary's view 272 sustained by other Judges 273 contrary to the rule of the Su- preme Court 274 in trespass for assault and battery and d. b. a 275 defence of leave and license 276 how far equity wUl enforce a forfeiture 277 relief against forfeiture: at law: several modes of relief ^ 278 license 279 waiver — ^release of causes of forfeiture 280 ■ estoppel 281 in equity ; 282 by holder of concurrent lease 241 breach of condition makes estate voidable not void '. 243 rigors of, tempered by the common law , 243, 278 for breach of covenant not to assign 279 POEPEITUBE ON ALIENATION: (see Bestbajnts on Alienation.) public policy behind invalidity of gifts over by way of 723 distinguished from restraints on alienation 711 upon the alienation of a fee simple or absolute interest: generally 712-713 in a particular manner : construction of clauses of 717 by deed or will 445, 461, 717, 718 on intestacy 445,461,720-723 defined and result of authorities stated 720 898 INDBZ [Keferences are to sections. The letter n after a section number directs atten- tion to the footnotes ol that ^ection.] FOEFEITURE ON ALIENATION— Continued. excuse for reconsidering the authorities upon prin- ciple 721 reasons for holding void gifts over on intestacy. .447, 722 of personal property 722 of real estate 723 valid in New York by statute 723 gifts over upon a definite failure of issue and intestacy : state of the authorities 725 upon principlp the gift over is valid 724 upon the alienatjlon of a fee tail 716 upon the alienation of a life estate 714 upon the alienation of a term of years 715 FEANKALMOIGNE : (see Tenure.) FEAUD: appointment in fraud of powers 612 FEEEHOLD ESTATES: (see Estates, Fee Simple, Fee Tail, Life Estate) 11-20, 70 entry necessary to perfect forfeiture of i 278 what pass by livery and what by grant 451 hqw fa* transferable by livery in Illinois 453 FUTUEE INTEEESTS : (see Possibilities op Eevbrtee, Eights op Entry for Condition Broken, Eeversions, Eemaindebs, Contin- gent Eemainders, Springing and Shipting Interests, Future In- terests AFTER A Term, Personal Property, Terms for Years.) after terms for years ., 31-33, 80, 85 GARNISHMENT: whether cestui 's interest is subject to 728 GESTATION: periods of, and application of rule against perpetuities 655 GIFTS OVER: in default of appointment 332, 634-637, 726 effect of, on estate created in first taker 164-167 effect of, on failure of first taker to dispose of property 168 how far they give rise to a contingency of survivorship . . . 245 et seq. ignored in several cases as if void. 596 effect of, on vesting of legacies 519-521 on failure to alienate 717-726 on intestacy ' 720-725 when intestacy occurs before testator's death 598 899 INDEX [Ueterences are to sections. The letter n after a section number directs atten- tion to the footnotes of that section.] GIFTS OVER— Continued. on intestacy and failure of issue 724 et seq. effect on of failure of preceding interest. 597-598 effect on subsequent limitations when prior limitations fail for remoteness 710 failure of, for remoteness — effect on prior limitations 705 etseq. upon the "death" of a previous taker simplieiter or "without children, " or " without issue, " or " without heirs ' ' : to what period is "death" referred: limitations by will to A simplieiter followed by a gift ' ' at his decease " 529 limitations by will to A simplieiter followed by a gift ' ' in case of his death," or some other expression treating A 's death as a contingent event 530 limitations by will to A simplieiter with a gift or gifts over on A's death and one or more collateral contin- gencies 531 limitations by will to X for Ufe, then to A simplieiter, with a gift or gifts over on A '& death and one or more collateral contingencies 532 the rule of the English cases 532 the course of decision in Illinois is somewhat in doubt 533 some results reached by our Supreme Court are sup- ported by definite special contexts 534 limitations to X for life, then to A for life, and in case of A's death and on the happening of a collateral con- tingency over 535 where property is vested in trustees who are directed to distribute at a certain time, so that the trust then determines and the legatees, who are to take upon the death of prior legatees, are to do so through the medium of a conveyance from the same trustees 536 limitations by will to A at a period of distribution after the testator's death, with a gift over if A dies before the period of distribution '. 537 meaning of "vrithout" in gifts over if first taker dies without children : two possible meanings of the word "without" 538 if there is no independent gift to the children of the first taker, "-without" means primarily "without children surviving " 539 when there is an independent gift to the first taker's children or issue, so that a child upon birth acquires a vested interest, "without" may mean "without ever having had " - 540 900 INDEX [Ueferences are to sections. The letter n after a section number directs atten- tion to the footnotes of that section.] GIFTS OVEE— Continued. where there is an independent gift to the first taker's , children contingent upon their surviving the first taker, a gift over if the first taker "die without children" means die without children surviving the first taker. . . . 541 meaning of "without issue" in gifts over if first taker dies without issue: there are three possible meanings to the phrase "die without issue " 542 where there is an independent gift to the issue of the first taker which vests an interest in such issue as soon as born 543 suppose, however, there is no independent gift to the issue of the first taker 544 results of the English cases and effect of the Wills Act 544 ' the position taken by the Illinois Supreme Court. . . . 545 in general 545 Stafford v. Eead and Kendall v. Taylor 546 O 'Hare v. Johnston , ^ 547 whether an indefinite failure of issue is meant where ' ' die without issue" introduces a remainder after an estate taU 548 results which would follow if our Supreme Court held a . future interest other than a remainder after an ex- pressly created estate tail to have been limited upon an indefinite failure of issue 549 Ewing V. ( Barnes 550 "issue" in gifts over if first taker dies "without issue," when construed ' ' children " 551 "heirs'"' in gift over if first taker dies "without heirs," how construed • 552 ' ' GEANDCHILDREN ' ' : who included in the term 574 GEANT AND ATTOENMENT: (see Attornment.) a mode of conveyance 43, 451 how far, used or in force in Illinois 453, 455 GUARDIAN'S SALE: jurisdiction of equity over, to set aside or enforce 372, 375 entry under void guardian 's sale of reversion : when possession adverse 390-391 HABENDUM: conflict between premises and (see Conflicting Provisions.) 901 INDEX [liefereneea are to sections. The letter n after a section number directs atten- tion to the footnotes of that section.] HEIES: meaning of: in limitations to grantor and his heirs 305 in gift over if first taker. dies "without heirs" 552 as a word of purchase or as a word of limitation 422 to include adopted child i 586 in a limitation to the testator's heirs or heirs of a living person : primary meaning of ' ' heirs " 140, 571 gift to the testator's heirs where a preceding interest is , expressly limited to one who is an heir or the sole heir of the testator at his death ■/. 572 whether a surviidng spouse is included in a .^if t to the deceased spouse's heirs-at-law. i 573 where no preceding interest is limited:=^distributive construction : 573 where a preceding interest for life is limited to the spouse with a gift over to the testator's heirs. . . . 574 when construed to mean "children" 574 ?i of devisor take by descent from, devisor, when 728 expectancy of, how far assignable 374 HIGHWAY: fee to middle passes by deed when'. 287, 292 HOMESTEAD: legal life interest in, might be made subject to restraint on alienation ,. 730 n HOTCHPOT CLAUSE: (see Powers.) HUSBAND AND WIFE: exercise of power by wife for husband not aided in equity when defective 639 condition to induce, to live apart or get a divorce . . , , 750, 752 estate by entirety in 213 dower: (see Dower.) IDENTIFICATION: of devisee 139 ILLEGAL AND IMPOSSIBLE CONDITIONS: when the condition is subsequent and impossible of fulfilment or illegal 749 where the condition is precedent and illegal or impossible 750 what conditions are illegal 751 902 INDEX [References are to sections. The letter n after a section number directs atten- tion to the footnotes of that section.] ILLEGAL AND IMPOSSIBLE CONDITIONS— Contiiiued. conditions in restraint of marriage 751 conditions to induce husband and wife to live apart or get a divorce .'...' 752 ILLEGITIMATE CHILDREN: when included in devise to children 140 ILLINOIS AND MICHIGAN CANAL: (see Canal Commissioners AND TEUSTEES.) , ' ILLINOIS LAW: sources of i 453 ILLUSORY APPOINTMENTS : (see Powers) 614 IMPLICATION: not indulged 123-151 life estate by 205, 465 of power of sale ; 250-251 of cross limitations 600-601 -of contingency of survivorship — rfrom, gift over 345 et seq., 521 of gift in default of appointment 637 INALIENABILITY: of contingent future interests 48 of mere rights of entry 47 of contingent remainder: (see Contingent Remainders.). 47 INCOME: intermediate 207-209 effect of payment of, on vesting of legacies ; . ,510-513 INHERITANCE TAX: assessment of, on future interests , . . . 401 INTEREST: effect of payment of, on vesting of legacies^. 207-209 INTERMEDIATE INCOME: (see Income.) INTERPRETATION OF WRITINGS: the theory of legal interpretation: introductory 122 subject-matter of interpretation: i inducement distinguished from legal act 123 903 INDKS; [Kel'erences are to sections. The letter n after a section number directs atten- tion to the footnotes of that section.] INTEEPRETATION OF WRITINGS— Continued, standards of interpretation: Wigmore 's three standards applicable to unilateral acts . . 124 Mr. Justice Holmes ' single standard of interpretation . . . 125 the "will" or "intention" of the inducement as a stand- ard of interpretation 126 sources for ascertaining the tenor of the standard of inter- pretation — extrinsic evidence: the instrument itself 127 extrinsic evidence 128 ' introductory 128 the rule against ' ' disturbing a clear meaning " 129 direct declarations by the testator or settlor ........ 130 such declarations as relate to the standard of in- terpretation used, when they do not also dis- close the objects and purposes of the induce- ment, should be received 130 declarations of the testator or settlor which disclose the objects and purposes of the induce- ment 131 when excluded 131 exception in the case of equivocation 132 even where extrinsic evidence (other than direct declarations of the testator or settlor) tends to prove an individual standard of interpreta- tion in cases of ambiguity, it may still be ex- cluded because of too slight and remote proba- tive force and too likely to be used improperly to establish the inducement as a rival subject matter or standard of interpretation 133 application of the foregoing principles 134-141 comments upon the "object of interpretation" and upon ' ' strict ' ' and ' ' liberal ' ' constructionists 142-143 the practice of the art of interpretation: there is an art of interpretation 144 caution against indulging in speculation and conjecture as to what the testator intended — the interpreter should not infer what he (the interpreter) would have intended had he been placed in the position of the testator 145 in determining the effect to be given to surrounding circum- stances (even when admissible) to support a secondary meaning, a practical distinction should be observed be- tween the cases where the difficulty is one of ascertaining what persons are to take, or what property is conveyed, and • those where the question is what estate is created or the nature of a contingency 146 904 INDEX [Keferences are to sections. The letter » after a section number directs atten- tion to the footnotes of that section.] ' INTEBPEETATION OF WBITINGS— Continued. the interpreter should, whenever possible, inquire into the primary and secondary meanings of words and phrases- with a view to adhering to the primary meaning unless the second- ary meaning is fairly required ^. 147 it is an especially strong reason for adhering to the primary meaning of the language in question as against slight con- textual elements and surrounding circumstances supporting a secondary meaning, that the difficulty of construction is one upon which the testator's mind never acted, so that there is no actual intent of the inducement 148 the place of the argument from absurdity or incongruity. . . . 149 the art of balancing all the considerations on one side against all those on the other 150 * the language used must bo able to bear the meaning placed upon it and no additions must be made to the context of what is not in it 151 the place of precedent in handling problems of constructicin . . 152 INTESTACY, GIFTS OVBB ON: (see Restraints and Forfeiture ON Alienation.) 720-725 INVESTMENT: of personal property subject to future interests 492, 493 can life tenant of personal property invest proceeds in real estate. . 493 ISSUE; meaning of, in gifts to • 140 the primary meaning of "issue" — "issue" as including descendants and as limited to children - 575 when issue has been held to include all descendants the ques- tion arises, does it mean all descendants per oafiia, or does it include only those descendants who have no aittCestors liv- ing and who stand in the place of their ancestors deceased . . 576 introductory 576 suppose the gift is direct to issue and not to issue by way of substitution after an ancestor deceased to whom the gi£t was originally made 577 suppose the gift is to issue by way of substitution in place of a gift to the ancestor 578 suppose the gift is "to the children of A and the issue of any deceased child " 379 ^ suppose there is a gift "to the children of A and the issue of any deceased child, such issue to take the parent's share" or "to represent and take the parent's share" 580 Suppose the gift is of on6 thousand dollars "to A, and if A die before the period of distribution then to bis 905 INDEX [ References are to sections. The letter n after a section' number directs atten- tion to tile footnotes of that section.] ISSUE— Continued. issue, said issue to take the share of their parent" or "to represent and take the parent's share," or suppose , the gift is to A for life and then to his issue, "the issue to take the parent's share" or "to represent and take the parent 's share " 581 the present state of the cases in Massachusetts 582 what is meant by the statement that "where the gift to the issue is substitutional they take per stirpes and not per capita 583 as including ad,opted Child 587 et seq. meaning of, in gift over if first taker dies without issue 551 ISSUE, GIFT OVER ON FAILURE OF: (see Gifts Ovee.) ^ validity of 445, 467, 469, 470 and intestacy, validity of 724-725 possible meanings of "die without issue" and importance of the usual question of construction which arises 542 gifts on a definite failure of issue 542 et seq. the interest after an estate tail must be considered as limited upon an indefinite failure of issue 548 results in Illinois of holding a gift to be limited upon an indefinite ■failure of issue i 549 Ewihg V. Barnes 469, 550 remoteness of gifts on an indefinite failure of issue 549 to charity ' 697 n JOINT INTERESTS: of real estate ,.,.,..., , ;..,.., 210 joint tenancies other than those in trustees and executors. .22, 210 the statutes , .' 210 construction 211 i joint tenancies in executors and trustees 212 estates by the entirety in husband and wife 213 tenancy in common 214 ^ in personal property '. 215 JUDGMENT CREDITOR: (see Creditok.) LACHES: ground for refusing' speeifle performance 664 LANDLORD AND TENANT: (see Conditions, IIoepeitubb, Leases, Notice to Quit, Terms toe Years.) leaseholds subject to a condition. 218 ; 906 INDEX [Eeferences are to sections. The letter n after a section number directs atten- tion to the footnotes -of that section.] LANDLORD AND TENANT— Continued, conditions in leases: arising by operation of law: implied condition that a tenant shall not repudiate the tenancy and claim to hold against the landlord 233 by acts of 1865 and 1873 : prior to 1865 no ground of forfeiture in the absence of express condition: introductory 234 on principle 235 not altered by any statute down to 1865 236 sec. 2 of the act of 1865 afterwards appearing as sec. 9 of the act of 1873 237 sec. 8 of the act of 1873 238 whether these acts have any retroactive effect 239 by act of the parties .219-227 who may take advantage of the breach of a condition attached to a term for years or a life estate 241 effect of the breach of a condition in a lease 243 mode of perfecting the forfeiture of a leasehold 244-255 (see FOEPEITDKE.) remedy in case of forfeiture of a lease duly perfected. ....... .256, 277 right of landlord to regain possession by force 257, 276 condition, estates upon: (see Condition, Estates Upon, Forcible Entbt and Detainee, Pokpeiture, Trespass.) effect of assignment by tenant of more than he has 233 concurrent leases , 341 covenants against assignment 279, 715 surrender by the tenant ^ 254 LAW EEFOEM: trend of, in the law of real property 459 LEASE: (see Conditions, FoRrEiTURE, Landlord and Tenant, Teems foe Yeaes.) • provision that surrender shall be in writing 254 provision for forfeiture without entry, demand for rent or notice to quit 254 clause extending the time for giving notice in case of default 254 provision for leave and license to enter with necessary force in case of forfeiture ■ 276 covenant against assignment or subletting. 279, 715 provision that consent to one assignment shall not waive consent to future assignments 279 clause of renewal and Eule against Perpetuities 665 power of life tenant to make '. 651 907 INDEX [References are to sections. The letter n after a section number directs atten- tion to tlie footnotes of that section.] LEASE— Continued. power in executor and trustee to make 645-646 power of a court of equity to permit in absence of power 647 LEASE AND EELEASE: conveyance by 61, 452 by estoppel 480 n LEAVE AND LICENSE: defense of, in trespass 276 LEOACIES: (see Life Estate, Personal Property, Vested Inter- ests.) LEGACIES, VESTING OF: sense in which ' ' vest ' ' is used when the question of the vesting of legacies is considered 495 a distinction must be drawn between the ease where the question is whether a legacy is contingent on the legatee surviving at a future period of distribution and where the same question arises in respect to legal reniainders and springing interests in land. . 496 legacies charged on land: a distinction must be observed between the cases where the question is whether a legacy payable out of the personal estate is contingent on the legatee surviving at a future period of distribution and where the same question arises in respect to a legacy charged on land and actually paid out of the proceeds of the land 497 legacies actually paid out of personal property: the results reached by the courts are for the most part merely suggestive as to what considerations will furnish a sub- stantial inference for or against the vesting of the legacy. . 498 where there is a direct gift vrith a superadded direction to pay at a future time: in these cases the context justifies the prima facie inference ~ that the gift is immediate subject only to a postponement as to payment and is not contingent upon the legatee surviving the period of distribution. 499 where the only gift is to be found in the direction to pay or divide at a future time: . in such oases the context justifies the prima facie inference that the legacy is contingent upon the legatee surviving the date of payment .' 500 eases where a difficulty arises in determining whether there is a direct gift with a superadded direction to pay at a future time, or a gift only in the direction to pay at a future time 501 908 INDEX [References are to sections. The letter n after a, section number directs atten- tion to the footnotes of that section.] LEGACIES, VESTING OF— Continued. whether the direction to pay at the future time is for reasons per- sonal to the legatee or merely for the convenience of the estate: this is important in determining whether or not the legacy is contingent 502 cases where the only gift was contained in the direction to convert and divide after a life estate and where the post- ponement was held to be merely for the convenience of the estate 503- similar cases which hold, or appear to hold, the legacy con- tingent upon the legatee surviving the life tenant -504 People V. Jennings 504 Banta v. Boyd 505 Ebey v. Adams . .' 506 Barnes v. Johnston ^ 507 Strode v. McCormick 508 cases where it is doubtful whether the direction to pay at a future time is for the convenience of the estate or personal to the legatee 509 effect on vesting, of the payment of interest or income: cases where the payment of interest or income has no effect on vesting distinguished from those where it may have such an effect 510 principle upon which the payment of interest or income gives rise to an inference in favor of vesting the legacy 511 where the legacy is to a named individual at a future time, with interest or income in the meantime 512 where the legacy is to a class at a future time, with the income in the meantime 513 cases (a) where the income is not given during the entire period before distribution, and (b) where all the income is accumulated and given at the period of distribution along with the principal '. 514 legacies payable when the youngest of several legatees reaches a given age 515 miscellaneous grounds of inference in favor of vesting: the fact that the legacy is of a residue, or is constituted a trust fund separated from the balance of the estate 516 where a charge is placed upon the share of the legatee 517 effect of references to "shares" or "portions" of legatees to whom the only gift is in a direction to pay or divide at a future time 518 effect of gifts over: inference in favor of vesting founded upon the presence of a gift over '. 519 cases where the gift over furnished an argument for vesting. .519a 909 INDEX [References are to sections. The letter n after a section number directs atten- tion to tbe footnotes of ttiat section.] LEGACIES, VESTING OF— Continued. ' inference in favor of the gift being contingent founded upon tbe presence of a gift over 520 reflecting back a contingency of survivorship from the context of a gift over of what the legatee would have had if living . . 521 inference in favor of contingency where there is an express X ■ direction as to vesting, j ^ 522 effect of the gift or legacy being to a class: the general rule is that no inference of contingency krises from the fact that the legacy is to a class 523 Drury v. Drury 524 effect to be given to the testator's inducement 525 cases where no question of vesting arises should be distinguished: the eases where there is a gift over if the legatee dies before the period of distribution and where by the happening of the divesting contingency the gift over takes effect, must be dis- tinguished from the cases where the question is whether the future legacy is subject to a condition precedent that the legatee survive the period of distribution 526 balancing inferences for and against vesting: eases illustrating the manner in which the foregoing considera- tions, or some of them, must be discovered and balanced against each other in order to obtain a result as to whether or not the legacy is vested or contingent 527 equitable interests in land or in a mixed residue of real and per- sonal property: on what basis is the vesting or contingency of the gift of such interests to be decided 528 subject to payment of debts and other legacies 666 et seq. LIBEEUM TENEMENTTJM, PLEA OF: (see Trespass.) LICENSE: as a defense to forfeiture 279 LIFE ESTATE: by express words: i defined 201 created i ■ 202 by words explicitly 202 expressly by construction 203 by implication 205 when trustee takes 183-193 by way of use j 70 in husband by marital right 387 premature determination of, by merger 311 910 INDEX I [ References are to sections. , The letter n after a section number directs atten- tion to the footnotes of that section. ] LIFE ESTATE— Continued. when estate comes to an end hj limitation or is forfeited 393 created by Statute on Entails in place of estate tail 402-403 determination of classes when period of distribution comes at the termination of a 565, 566 implied condition upon which the feudal tenant held 235 whether pee. 8 of the Landlord and Tenant Act of 1873 applies to 238 who may take advantage of the breach of condition attached to. . 240 effect of breach of condition attached to 243 mode of perfecting forfeiture of .^ ' 244 effect of a restraint on alienation in construing a 727 n when first taker has a 717 when turned into an estate tail by a gift on failure of issue.'. .... 549 forfeiture upon alienation of . ; . ; 714, 730, 731 by implication 465 can be limited to the grantor by a statutory conveyance 458, 465 in personal property 490 whether power in life tenant to use up and consume the prin- cipal 492 n investment by life tenant ". 493 when life tenant must give security 494 with power of disposition or appointment 726 •when life tenant has a power of sale ■. .648-651 effect of express reservation of, in a deed. 4:65,n, 466 legal and equitable, subject to restraints on alienation 730, 731 effect of deeds not in terms reserving a 463, 466 LIMITATIONS, STATUTE OF: (see Adverse Possession.) ■ ; operation • • • 231 application to mortgages 232 how far constitutional ■ • ■ • 231 .effect on mortgage of barring of debt 229-232 effect of new promise after mortgage debt is barred 230 possession of mortgagor, when adverse 217 «. LIVEEY OF SEISIN: (see Seisin.) what interests transferred by 42 no shifting interests created by ^ 26, 453 no estate can be limited to the feoffor by , • • -70, 464 in use in England in the 19th century 453 n how far in use, or available for use, in lUinois 453, 455, 464 LIVES IN BEING: Rule against Perpetuities 116j 652-655 MARRIAGE: ^ ^ conditions in restraint of 751 911 INDEX [References are to sections. The letter n after a section number directs atten- tion to the footnotes of that section.] MAEEIBD WOMEN: clauses against anticipation in settlements of 737 n construction of powers in settlements of 644 n separate property act 388, 389 MERGER: destruction of life estate by ,311 occurs when rule in Shelley 's case applies 440 MODIFYING CLAUSES: ^ -> Rule against Perpetuities 681, 682, 683 MORTGAGES: (see Tsusr Deed bt Wat op Mortgage.) elementary character of, as the conveyance of a fee simple subject to a condition subsequent ._ 217 when may mortgagee maintain ejectment 217 no notice to quit necessary befbre ejectment by mortgagee 217 n difficulty in the rule that when the debt is barred the mortgagee has no right to possession 229 view that the mortgagee has a base or determinable fee 230 view that the mortgagee's interest after default is subject to a condition subsequent 231 barring of the debt is simply an equitable defence to the mortgagee 's legal title 232 effect of new promise after debt barred 230 ^ower of sale in .610 n I MUNICIPALITY: fee passes to, upon a statutory dedication 212 MUTUALITY: lack of, ground for refusing specific performance 664 NON-EXCLUSIVE POWERS: (see Powers) 615 NOTICE TO QUIT: not necessary before mortgagee brings ejectment 217 n ten-day : under see. 9 of Landlord and Tenant Act 247 effect upon of sec. 4 of the act of 1865 248 is it necessary for forfeiture other than for default in the payment of rent ., 251 statutory time extended by mutual agreement 255 dispensed with by agreement 254 giving, for uon-paynieijt of rent a waiver of forfeiture 280 how SeiVed 233 912 INDEX [References ave to sections. The letter » after a section number directs atten- tion to the footnotes of that section.] OPTION TO PUECHA8E: subject to rule against perpetuities 664-665 "OB" CONSTRUED "AND": 170 ' ' and ' ' construed " or " 382 r PARTITION: by tenant in common of future interest 398, 480 validity of clause forbidding 727 PERPETUITIES, RULE AGAINST: the necessity for a rule limiting the length of time in the future at which future interests could be designated to take effect became apparent in the 17th Century 113 Manning 's Case and Child v. Baylie 114 Duke of Norfolk 's Case 11.5 subsequent leading cases completing the statement of the Rule against Perpetuities 116 in determining when a freehold interest took effect in possession re- sort was had to certain purely feudal conceptions 117 it was enough if the future interest vested in interest (as distin- guished from taking effect in possession) within the required time 118 statement of the Rule 119 inaccurate and unsatisfactory statements of the Rule 120 public policy behind the Rule against Perpetuities 121 the Rule and its corollaries : ^, the Rule as stated by Professor Gray is in force in Illinois. . 652 the future iiiterest must vest in the proper time 653 what is meant by ' ' vest " 654 other corollaries ref ei-red to 655 references to the Rule as stated in Bouvier's Law Dictionary. 656 the difficulty in most cases has to do with the application of the Rule to the particular limitation 657 the Rule against Perpetuities distinguished from the rule which makes void restraints on alienation and provisions requiring a trusteeship (otherwise valid) to be effective at too remote a time: the special rule as to restraints on alienation and provisions for indestructible trusts 658, 737 the Illinois cases 659 trusts for the perpetual care of a cemetery lot 660 effect on other provisions of holding void a requirement that a trust should remain indestructible for too long a time .... 661 interests subject to the rule: legal interests 662 equitable interests 663 Kites Put. Int.— 58 gj3 INDEX [References are to sections. The letter » after a section number directs atten- tion to the footnotes of that section.] PEEPETUITIES, RULE AGAINST— Continued. contracts • 664 Bauer v. Lumaghi Coal Co. and London & S. W. Ey. v. Gomm 664 options to purchase 660 interests limited to take effect "when de,l>ts are paid," "a trust executed," or "a wiU probated": ' introductory 666 suppose a term is given to trustees upon trust to pay debts and subject to the term the property is devised' to A absolutely. . 667 suppose the fee is given to trustees upon trust to pay debts and ■when debts are paid the land is devised to A absolutely. . . . 668 is A 's interest legal or equitable 668 suppose A 's interest be equitable 669 suppose legacies are bequeathed to several and the residue of the testator's personal estate alone is bequeathed to A "when the testator's debts and legacies are paid and the estate settled" 670 suppos^ there are bequests of several legacies and then a devise to A absolutely of the residue of the testator's real and personal estate "when debts and legacies are paid and the estate settled" 671 suppose that Blackacre be devised to A in fee when the tes- tator's debts are paid, there being no charge of the debts upon the real estate by words, but only by the usual statute making real estate liable for the payment of debts after the personal estate is exhausted 672 suppose a devise be made of Blaekacre to A in fee when the testator's debts and legacies are paid and neither the debts nor legacies are charged upon the real estate by the tfesta- tor 's words or by any statute ,. 673 suppose a devise in fee to trustees upon 'trust to pay debts and /legacies and when the same are paid to divide the estate among such of his children or more remote issue as may "then" be living 674 suppose that the devise be in fee to trustees upon trust for A for life and immediately upon A's death to pay A's debts and when his debts are paid to divide among the testator's then living issue 675 gifts conditioned upon the devisees making payments to others 676 limitations to classes: introductory 1 677 problem where the interest to the class is vested as distin- guished from executory, but subject to a postponed en- joyment clause 678 cases (a) and (b) '■ ■' 678 914 INDEX [References are to sections. The letter « after a section number directs atten- tion to the footnotes of that section.] PEBPETUITIE8, RULE AGAINST— Continued. cases (o) and (d) 679 eases (e) and (f ) \ . 680 problem where the interest to the class is contingent upon their attaining twenty-five .' 681 cases (a) and (b) 681 ' separable limitations: contingencies separated hj act of the testator or settlor - 685 separation of eontingeiicies by operation of law — Rule of Challis V. Doe , 686 application of the rule of destructibility of contingent remainders to prevent the violation of the Rule against Perpetuities: introductory , 687 suppose the legal contingent remainder is limited to a class. . 688 ♦ suppose the future interest is one which may take effect as a remainder or aS a shifting interest 689 powers : ' powers void in their creation because they may be exercised at too remote a time 690 invalidity for remoteness in the exercise of a valid power. . . . 691 where the power is special 691 where the power as general to appoint by deed or wiU. . . . 692 where the power is to appoint by will only, but is as gen- eral as such a power can possibly be 69o problem stated 693 the oases are in conflict 694 solution of the problem on principle 69") limitations after an estate tail ; , 696 charities : trust for charitable purposes not void for remoteness though the trust must last indefinitely 697 where a charitable bequest is to a corporation or association not yet formed 693 ' accumulations : apart from the statute on accumulations: accumulations other than for charity 699 accumulation for charitable purposes 700 the Thellusson Act re-enacted in Illinois 701 construction : attitude of the court in handling questions of construction which must be determined before the Rule is applied 702 modifying clauses 7-03 estoppel and election: one who has received an interest devised by a will is not pre- cluded from attacking the provisions of the saine will on the ground that they violate the Rule against Perpetuities 704 915 INDEX [References are to sections. The letter » after a section number directs atten- tion to tbe footnotes of that section.] PERPETUITIES, RULE AGAINST— Continued. effect of failure of some limitations for remoteness on others: effect on prior limitations not too remote when subsequent limitations fail for remoteness: general rule as stated by our Supreme Court in Barrett V. Barrett 705 cases where the court held that the limitations not void for remoteness should be enforced 706 cases where the valid portions of the will failed along with the invalid 707 summary of conclusions from the cases 708 Gray 's statement in his Rule against Perpetuities 709 effect on subsequent limitations when prior limitations are void for remoteness: ' the rule of Monypenny v. Dering 710 PERPETUITY: first used in referring to the attempt to make an estate tail iBalienable 18 PEACEABLE: what entry is 261, 267-269 PERSONAL PROPERTY: estates and future interests in: chattels personal 107, 485 English Law 107 American eases 108 chattels real 109 no doctrine of destructibUity .• 110 the Rule in Shelley's Case has no application Ill, 434, 439 future interests in personal property created by means of trusts 112 exception where articles are necessarily consumed in the using 486 nature of the future interest 487 whether legal or equitable 487 whether vested or executory 488 Where a chattel real is involved 488 where the limitation is of a chattel personal 489 the language of the Supreme Court 489 the point actually decided 490 whether contingent upon surviving the life tenant 491 rights of those interested in personal property in which future interests are created 492 enjoyment in specie or conversion and investment 492 where the intent of the settlor is expressed in words 492 where no-intent has been explicitly indicated by words 493 916 INDEX t References are to sections. The letter » after a section number directs atten- tion to the footnotes of that section.] • PEBSONAL PROPERTY— Continued. how may the second taker protect his property interest. . 494 cases holding that condition precedent of survivorship exists not authority in case of real estate 356 effect of limitations of, to A and the heirs of his body, or to A for life and then to the heirs of his body, or to A and his issue ,. 199-200 joint interests in 215 • terms for years are . . . l 21, 235 PER STIRPES OR PER CAPITA: where gift is to " heirs " 571 where gift is to " issue " 575 et seq. PLATS: (see Dedication.) PLEADING: on behalf of defendant in trespass: (see Teespass.) POSSIBILITIES or REVERTER: reversionary interests 283 described 23, 300 distinguished from a right of entry for condition broken 283 distinguished fhim a conditional limitation 301 none since Quia Emptores 230, 286 how far valid in Illinois 302 is right of dedicator upon a statutory dedica.tion a 284 whether entry necessary to perfect. . .' 285, 300 whether mortgagee has 230 application of the Rule against Perpetuities to 662 transfer of: ' in general 30O.m by statute 293 by devise 240 POSTPONED ENJOYMENT: (see Besteaints on Alienation.) of absolute equitable interests: how far recognized in this state 732 how far valid on principle: the authorities at large 733 reasoning of the English cases 734 ' the- reason of repugnancy unsound 735 reasoning based upon public policy: preliminary 736 the duration of the postponement must be limited in time , .678, 679, 680, 737 917 INDEX [Keferences are to sections. The letter n after a section number directs atten- tion to tlie footnotes of tliat section.] POSTPONED ENJOYMENT— Continued. consideration oi the precise issue involved 738 do not fall with spendthrift trusts 73S a matter purely personal to the legatee 568 for the purpose of accumulation 699, 700 where gift is to a class: validity of , 568 period of distribution 568 remoteness of vested interests which are subject to post- ponement 678-680 clauses of, for convenience of estate — effect of, on vesting. . . .502 ei seq. remainders vested subject to 333 et seq. POWERS: created: by way of use 73, 452 by devise ; 85 classification, validity and extinguishment of powers — appointment in fraud of powers: classification of powers 609 validity of legal interests created by the exercise of a power C 468, 6101 extinguishment of powers 611 , appointment in fraud of powers 612 special restrictions upon the capacity to be a donee of a power or to exercise a power attempted to be conferred 613 illusory appointments and non-exclusive powers: illusory appointments 614 non-exclusive powers 615 the hotchpot clause 616 survival of powers 617 powers surviving pursuant to statute: survival in case of the death of one of several executors . . . 618 survival in case one of several executors refuses to act. . . 619 survival in case one of several executors fails to qualify. . 620 no survival to the administrator with the will annexed . . . 621 exercise of the power which did not survive supplied by hold- ing as constructive trustees those who take in default of ap- pointment : where the power is in executors to sell real estate to pay debts or legacies, or both 622 supJ)ose the power is given to executors to sell real estate and distribute the proceeds to those who take the real estate if it were not sold. 623 918 INDEX [References are to sections. The letter m after a section number directs atten- tion to tlie footnotes of that section. ] ■ POSTPONED ENJOYMENT— Continued. powers in executors and trustees construed as exercisable by whoever for the time being holds the office ; distinction between real and spurious powers 624 problem wholly one of expressed intent 625 cases where the power is given to trustees who take an absolute iiiterest in the trust estate 626 cases where the beneficial interest is in A and where B and C have power to divert the beneficial interest by ap- pointment to D 627 cases where a real power is given to executors to sell to pay debts or legacies, or both 628 eases where the power in executors is One not only to sell to pay debts or legacies, or both, but also to sell for the convenience of the estate and hold the proceeds for the one entitled to the land 629 cases where there is a power in executors to sell, not, how- ever, to pay debts or legacies, but to hold the proceeds for the benefit of those entitled to the land in place of the land 630 cases where the executors have a discretionary power to seU and apply the proceeds in a way which changes the beneficial interests 631 suppose tliat trustees have only a term for yea,r3 or a life estate and a power to sell the fee and hold the pro- ceeds for the devisee of the legal estate in fee after the term or the life estate .' 632 treatnient of the subject of survival of powers by dis- tinguished English writers ■ 633 powers in trust and gifts in default of appointment: the problem stated 634 where there is a devise to trustees upon trust to transfer to certain persons, with power in the trustees to make a selection or exercise a power to appoint among the beneficiaries ' 635 where there is no gift to trustees but only a real power, there may still be sufficient language from which the court can properly find a direct gift to the objects of the power ^ 636 suppose there is merely a power to appoint to special objects and no express gift in default of appointment, and no basis in the language used for any direct gift to such objects .'. 636 appointed property as assets^ 638 defective execution- .' 639 what words exercise a power 640 919 INDKX [References are to sections. The letter » after a section number directs atten- tion to tile footnotes of that section.] POWEES— Continued. the plain case 640 the difficult ease occurs where the donee makes a general gift of all his property without any direct reference to the power or his intention to exercise it 641 effect of excessive execution 642 existence and scope of powers of sale and lease: power in executors and trustees to sell and dispose of the fee of real estate '. 643 existence of the power 643 extent of the power 644 power in trustees to make leases 645 when the trustee has a legal estate in fee simple . . 645 when the trustee has a legal estate for years or for the life of the equitable life tenant only 646 in the absence of power in trustees to sell the fee or to make a long'term lease, such sale or lease may be ' effected with the aid of a court of equity in cases of necessity 647 power in life tenants to sell or dispose of the fee 648 existence of the power 648 extent of the power 649 disposition of the proceeds of sale 650 power of life tenant to make leases 651 remainders in default of . appointment 832 gifts over in default of appointment 726 application of Eule against Perpetuities to 690-695 in life tenant to use up principal 486 to appoint new trustees 444, 452 PEECEDENT: place of, in matters of interpretation 152 PEIMO-GENITURE, EULE OF: whether it survives in Illinois 409 PROBATE COUET: practice in, when there is a life estate in personal property 494 whether it has power to order life tenant of personal property to give security 494 power to appoint new trustee 613 PUBLIC POLICY: in favor of preventing the outstanding of title to ways dedicated in persons other than the abutting owner 292 behind the acts in favor of the abutting owner upon a statutory dedication 292 920 ' INDEX [ References are to sections. The letter n after a section number directs atten- tion to tile footnotes of that section.] , PUBLIC POLICY— Continued. in favor of the greatest freedom to land owners in the creation of future interests in land 458, 459, 460, 735 in favor of the non-recognition of possibilities of reverter so that upon dissolution of a charitable corporation its lands escheat .... 302 source of the rule that gifts over by way of forfeiture on alienation are void 714, 723 source of the Eule against Perpetuities 121, 459 not violated by holding gifts over on intestacy and a definite failure of issue valid i 724 the holding of gifts over on intestacy void rests upon no 723 none in support of the holding that postponed enjoyments of abso- lute equitable interests are void 736-738 against, to allow restraints on alienation of absolute equitable interests 727 et seq. against permitting the alienation of future interests. 369-378 QUALIFIED FEE: (see Fee Simple, Possibilities or Eevebtek.) QUIT-CLAIM DEED : does not refer to any other than a present transferable interest. .374 ji vested remainders^transferred by 308 insufScient to transfer contingent remainders 309 good to pass reversions , 304 sufficient to release a future interest 43, 32pa effect of, to pass an executory devise., 480,- 481 EEAL ESTATE: difference between, and personal property in construction of "die without issue " 544 gifts over on intestacy of . , . 722 gifts over on failure of issue of 542 et seq. vesting of legacies charged upon 497 legacies charged on, distinguished from bequests of personalty. . . 497 investment in, by life tenant of personal property 493 n ' ' real estate trusts, ' ' rthether void for remoteness 658-661 EEALPEOPBBTY: reform of law of 459 EECOED: conveyances by . ,. 44 EECOEDING ACTS: effect of not recording on adverse possession against remaindermen 397 EECOVEEIES: .V ; . . . . 44 as a means of barring estates tail 17 921 INDEX [References are to sections. The letter n after a section number directs atten- tion to the footnotes of that section.] REDEEM: right of tenant to, for forfeiture of lease 277 EEFOEM : ( see Law Eepoem. ) EE6ISTEY OF DEEDS: 459 EELEASE : (see Lease and Eblease.) 43 of cause of forfeiture .' 280 heir's expectancy may be released to ancestor 374 of contingent remainder / 320a of executory devise and future uses 479 effect of release of lif,e estate to vested remainderman 392 EEMAINDEES: (see Contingent Eemaindees, and Vested Inter- ests.) in the feudal land law 25, 32 by way of use 71 vested and indefeasible.' 93 defeasible and uncertain ever to take effect in possession 94 the problem of Egerton. v. Massey 95 creation of 307 vested — examples of and characteristics 308 ^ vested, subject to be divested 327-328 problems of construction in determining whether remainder vested or contingent 329-356 - in default of appointment 332 New York statutory distinction between vested and contingent remainders 357-368 jurisdiction of equity to set aside transfer of 369-373 adverse possession against 383-397 descent of, from whom traced .380-382 - statutory remainder in place of estate tail 402-409 after estate tail 410-411 acceleration of 599 BENT : , default in, as a cause of forfeiture 234-238 mode of forfeiture for default in, by tenant 245 forfeiture for non-payment of, relieved against by equity 277, 282 receipt of, when a waiver of forfeiture 280 demand for, to perfect forfeiture of a term 278 under sec. 4, Act of 1865 248 common law demand for, how far abolished in Illinois 250 how made 252 dispensed with by agreement 254 922 INDEX [References are to sections. The letter n after a section number directs atten- tion to the footnotes fof that section.] EENUNCIATION: effect of, by executor with a power of sale 619 REPUGNANCY: origin and scope of the reason of ; 447 used to make void all shifting interests by deed or will 446, 447, 471, 721 as a ground for holding gifts over on intestacy void 721, 723 as a ground for holding gifts over by way of forfeiture on the alienation of a life estate void ; 714 as a reason for holding void postponements of absolute equitable interests '. 734-735 EES AD JUDICATA: contingent remainder-man bound by decree, by representation. . . . 326 RESCISSION: o£ contract for support in a conveyance 221 RESIDUE: effect of gift of, on intermediate income 207-209 on vesting 516 RESTRAINTS ON ALIENATION: first attempted, to make estates tail inalienable 18 gifts over on failure to alienate distinguished from executory devises in general 471 rules holding restraints void distinguished from Rule against Perpetuities 658-661 forfeiture on alienation as distinguished from restraints on aliena- tion 711 forfeiture on alienation: of a fee simple absolute or an interest in personalty: where the fee simple or absolute interest is in possession . . 712 forfeiture upon alienation of future interests., 713 of estates for life or for years: forfeiture upon alienation of a life estate 714 forfeiture upon alienation of a term for years 715 of an estate taU or the statutory estates in place thereof. . . . 716 forfeiture on failure to alienate — gifts over on intestacy: where the first taker has a fee or absolute interest: introductory — typical cases stated for consideration 717 consideration ofl cases 3 and 3a. 718 cases 2 and 2a 719 case 1-^gifts over on intestacy 720 result of the authorities. . . ., '. 720 923 INDEX [Kefereuce's are to sections. The letter n after a section number directs atten- tion to tlie footnotes of that section.] EBSTEAINTS ON ALIENATION— Continued. excuse for reconsidering the authorities upon principle 721 reasons for holding void gifts on intestacy 722 of personal property 722 of real estate 723 case la — gifts over on intestacy and faUure of issue 724 on principle the gift over should be held valid even though the gift over on intestacy be held void .... 724 state of the authorities 725 where the first taker has only a life estate: gifts in default of the exercise of a life tenant's power of disposition or appointment are valid 726 restraints on the alienation of a fee simple or absolute interest in personalty: restraints on the alienation of a legal estate in fee or an abso- lute interest in personal property 727 where the interests are equitable there are serious diflSculties in effecting an involuntary alienation, even where no express restraints on alienation are imposed 728 by an extension of the Eule of Claflin v. Claflin which permits the creation of indestructible trusts of absolute and indefeas- ible interests, restraints on alienation during the time the trust remains indestructible have also been permitted 729 restraints on the alienation of estates for life or for years: restraints on alienation of a life estate 730 when the interest is legal 730 where the life interest is equitable ' 731 indestructible trusts of absolute and indefeasible equitable inter- ests: taken by themselves and considered separately from any re- straints on alienation they are void provided they are prop- erly limited in time : the doctrine of Claflin v. Claflin '. 732 how far recognized in this State 732 how far sound on principle 733 the authorities at large 733 reasoning of the English cases 734 the reason of repugnancy unsound 735 reasoning based upon public policy 736 preliminary 736 the duration of the postponement must be limited in time 737 consideration of the precise issue involved. . 738 a holding, however, that restraints on alienation attached to the absolute and indefeasible equitable interest while the 924 INDEX [References are to sections. The letter n after a section number directs atten- tion to the footnotes of that section.] EESTEAINTS ON ALIENATION— Ciontinued. trust remainder indestructible are valid, is indefensible: such a holding has been made in Massachusetts and Illi- nois ; 739 the position of the court in the above cases is inconsistent with decisions already made and adhered to, and con- trary to the weight of authority 740 it is contrary lib public policy 741 construction — what words are sufS.cient to create restraints on alienation or a so-called spendthrift trust: introductory 742 Bennett v. Bennett 743 Wagner v. Wagner ' 744 Wallace v. Foxwell '. 745 O 'Hare v. Johnston 746 Hopkinson v. Swaim and Newcomb v. Masters 747 conclusion 748 RESULTING ESTATES: always in fee 465 by way of use 58 REVERSIONS: " under the feudal land law .24, 31 possibilities of reverter are 283 by way of use 71 vested and indefeasible 90 vested, but uncertain ever to take effect in possession and defeas- ible — e. gf., a reversion pending the vesting of a contingent re- mainder : 91 _ vested, but subject to be defeated by events happening after the reversion came into possession 92 examples of reversions 303 reversions are indestructible by any rule of law defeating intent aid alienable 304 a difficulty of construction 305 whether after the creation by devise of a freehold followed by con- tingent interests a residuary gift results in the creation of a ■ reversion or a remainder ' 306 jurisdiction of equity to set aside transfers of 369-373 attornment no longer necessary for transfer 379 descent of, from whom traced 380-382 adverse possession against 383-397 REVERTER, POSSIBILITIES OF: (see Possibilities of Re- verter.) 925 INDEX [References are to sections. The letter n after a section number directs atten- tion to the footnotes of that section.] EIGHTS OF ENTRY: inalienability of 47 EIGHTS OP ENTEY FOE CONDITION BEOKEN: under feudal land law 23 estates which may be subject to a condition subsequent: fee simple 216 mortgages 217 terras for years > 218 concerning the existence and character of the conditions: conditions created by act of the parties: what words are efEective to create a right of entry for con- dition broken 219 effect of a re-entry clause 219 where the conveyance is for certain express purposes, or upon a motive expressed, or upon a certain con- sideration, or "upon the express agreement," or "provided, however, the grantee shall do" thus and so, and there is no re-entry clause 220 cases where a grantee is to support the grantor for the remainder of his life or pay him an annuity. . 221 cases where words of condition are used, but there is no re-entry clause . . . : 222 the primary meaning of the words of condition. . 222 how far resort may be had to circumstances sur- rounding the making of the deed to impose upon words of condition alone the effect of creating a covenant only 223 introductory 223 a strong circumstance that a condition is created 224 Post V. Weil 225 Druecker v. McLaughlin 226 breach of condition created by act of the parties 227 conditions created by operation of law: upon the conveyance of a fee simple 228 in general 228 mortgages 229 dlflS.culty in the rule that when the debt is barred the mortgagee has no right to possession. . . . 229 view that the mortgagee, has a base or determin- able fee 230 view that the mortgagee's interest after default subject to a condition subsequent 231 barring of the debt is simply an equitable defence to the mortgagee's legal title 232 926 INDEX [ References are to sections. The letter n after- a "section number directs atten- tion to the footnotes of that section.] BIGHTS OF ENTEY FOE CONDITION BEOKEN— Continued. in case of leaseholds 233 implied condition that a tenant shall not repudiate the tenancy and claim to hold against the landlord . . . 233 by Acts of 1865 and 1873 234 prior to 1865 no ground of forfeiture in the absence of express condition 234 introductory 234 on principle 235 , not altered by any statute down to 1865. . . . 236 see. 2 of the Act of 1865 afterwards appearing as see. 9 of the Act of 1873 237 see. 8 of the Act of 1873 238 whether these acts have any retroactive effect . . . 239 who may take advantage of a breach of a condition subsequent and who take subject to the condition: when attached to a fee simple 240 when attached to an estate for life or years 241 who take subject to the condition 242 effect of the breach of a condition subsequent and mode of per- fecting a forfeiture: estate voidable, not void 243 mode of 'perfecting a forfeiture 244 of freehold estates 244 of estates less than freehold 245 the common law method of forfeiture 245 effect of Illinois statutes upon the common law method of forfeiture 246 in case of default in payment of rent 246 Act of 1827 246 sec. 2 of the Act of 1865, appearing as sec. 9 of the Act of 1873 247 sec. 4 of the Act of 1865 248 sec. 8 of the Act of 1873 249 how far has a forfeiture by a common law demand for rent been abolished by the Acts of 1827, 1865 and 1873 250 , for cause other than default in the payment of rent 251 see. 2 of the Act of 1865, appearing after- wards as sec. 9 of the Act of 1873 251 how demand may be made or notice served 252 retroactive effect of the Acts of 1827, 1865 and I 1873 '. ....253 927 INDEX [References are to sections. The letter n after a section number directs atten- tion to tbe footnotes of that section;] f RIOHTS OF ENTEY FOE CONDITION BROKEN— Continued. method of perfecting a forfeiture as altered by the agreement of the parties 254 provisions for the benefit of the landlord 254 provisions for the protection of the tenant 255 remedy in case of forfeiture duly perfected: ' by ejectment or forcible detainer siiit 256 actual entry upon the land 257 action of forcible entry and detainer for possession by the one put out i 257 introductory 257 where the entry is forcible 258 before 1872 258 since 1872 : 259 where the entry is peaceable . . . . , 260 what entry is peaceable and what forcible 261 how far may the one put out sue in trespass q. c. f., assault and battery, and d. b. a 262 three possible views 262 the Illinois cases 263 first indications 263 Reeder v. Purdy 264 its real scope 264 subsequent cases: Fort Dearborn Lodge v. Klein 265 the ground of the rule laid down in Reeder V. Purdy 266 distinction between forcible and peaceable entry 267 the vice of Reeder v. Purdy 268 the virtue of Fort Dearborn Lodge v. Ellein 269 some further questions. 270 view of the Appellate Court in the first district. . 271 before the Klein case 271 since the Klein case 272 in trespass q. c. f 272 Judge Gary 's view 272 sustained by other judges 273 contrary to the rule of the Supreme Court 274 in trespass for assault and battery and de bonis asportatis 275 defence of leave and license 276 how far equity will enforce a forfeiture 277 relief against forfeiture: at law 278 several methods of relief 278 928 INDEX [References are to sections. The letter n after a section number directs atten- tion to tbe footnotes of that section.] BIGHTS OF ENTEY FOR CONDITION BROKEN— Continued. license 279 waiver , . . . 280 estoppel 281 in equity 282 right of fentry for condition broken distinguished from a possibility of reverter — rights of the dedicator and abutting owner on a statutory dedication: distinction between a right of entry for condition broken and a possibility of reverter 283 the interest of the dedicator upon a statutory dedication.... 284 what sort is it ' 284 on principle 284 on authority 285 how does it arise 286 rights of abutting owners upon vacation of a statutory dedica- tion 287 in the absence of statute 287 the Acts of 1851, 1865 and 1874 288 effect and constitutionality of these acts 289 the wider and narrower meaning of these acts 289 these acts only operative in their narrower meaning, because in their wider meaning they would be un- constitutional and unjust ". 290 are these acts in their wider meaning unconstitu- tional or unjust 291 a difliculty about opening this question 291 such acts are neither unjust to the dedicator nor contrary to public policy 292 their constitutionality 293 retroactive effect of these acts 294 when their narrower meaning is adopted 294 upon their wider meaning 295 application of these statutes in their narrower meaning to the case of vacations of streets in canal trustees' sub- divisions 296 introductory 296 power of canal commissioners and canal trustees to dedicate streets 297 upon such dedication the fee passes, leaving a right to enter in the dedicator in ease of vacation 298 upon the vacation of a canal subdivision the fee in the street should go to the abutting owners 299 whether subject to Rule against Perpetuities 662 when condition illegal or impossible 750-752 construction of condition in a deed of dedication i . .. .283 n Kalea Fut. Int.— 5 9 929 INDEX \ [References are to sections. The letter n after a section number directs atten- tion to tile footnotes of tliat section.] SEAL: necessary to a covenant to stand seized 63, 456 is it necessary to a bargain and sale 60, 456 effect of recitals in a deed under .62, 456 SEISIN: defined in relation to estates 10 freehold estates 11 fee simple 11 fee subject to a condition subsequent 12 fee simple determinable or base fee 13 fee tail 14 introductory 14 before the Statute De Donis 15 origin of the estate tail under the Statute De Bonis.'. 16 the struggle to make the estate tail alienable in fee ^ simple ; 17 * the further effort to secure an inalienable estate tail 18 modern legislation 19 estates for life 20 estates less than freehold 21 joint ownership 22 of future interests after a particular estate of freehold 30 in relation to conveyance 38-48 SEISIN, LIVEEY OF: mode of conveyance 41, 451 essential feature of feudal system of land law 41, 451 necessity for done away with by statute of uses 59-64, 452 how far a valid form of conveyance in Illinois 453 SEPARABLE LIMITATIONS: Eule against Perpetuities 685 SHELLEY'S CASE, EULE IN: l origin and history of the rulei 34-37 when interests created by way of use 81 applied to equitable interests 89 does not apply to personal property '. Ill in general: the Eule in force in Illinois stated . .^ 412 where the life estate and remainder differ in quality — one being legal and the other equitable— the Eule does not apply 413 where the remainder is not to "heirs" but to "children" the Eule does not apply 414 where the grant or devise is "to A and his heirs" the Eule has no application : 41'5 930 INDEX [Keferences are to sections. The letter n after a section number directs atten- tion to the footnotes of that section.] , SHELLEY'S CASE, RULE IN— Continued. it does not, however, prevent the application of the Rule that other estates or interests are inserted between the life estate and the remainder to heirs 416 the Enle applies though the life tenant takes a part interest in the estate for life and a remainder in the whole, or the entire interest for life and a part interest in the remainder 417 where the limitations are to A for life, remainder "to the heirs of the body" of A: there have been dicta and decisions that the Rule does not apply to such limitations 418 there are three grounds for insisting that the Rule does not apply where the reipainder is to the ",heirs of the body" of the life tenant 419 the recent eases, however, hold that the Rule does apply where the remainder is to "the heirs of the body" of the life tenant 420 where the remainder is to "heirs," or "heirs of the body," of the life tenant, to what extent can "heirs," or "heirs of the body" be construed to be words of purchase and not words of limitation and the application of the Rule thereby be avoided : conflicting results of the cases 421 what is meant by "heirs" as a word of purchase and as a word of limitation 422 the first theory of the application of the Rule is that it applies only when ' ' heirs " in a remainder to heirs is used as a word of limitation embracing the whole line of inheritable suc- cession, and that it does not and cannot apply where "heirs" in a remainder ip used as a word of purchase. . . . 423 the second theory respecting the application of the Rule is that it applies when the word "heirs" in the remainder is used as a word of purchase 424 ;ieither of the above two theories is supported by all the re- sults of the English cases which are now recognized as law 425 a third theory which will reconcile at least all the English eases 426 in American jurisdictions the situation is apt to be chaotic in the extreme 427 the cases in Illinois 428 where the interests are equitable — executory trusts: the Rule applies where the limitations are equitable 429 the Rule does not apply where the trust is executory 430 what trusts are executory 431 two views not generally adopted 431 the generally accepted view 432 suggestions of the eases in aid of the problem of con- struction 433 931 INDEX [References are to sections. The letter « after a section number directs atten- tion to tlie footnotes of tliat section.] SHELLEY'S CASE, BULB IN— Continued. the Rule does not apply to personal property: conclusion stated 434 where the bequest is to A for life and then to "A's executors and administrators " 435 where the bequest is to A for life and then to his "heirs". . 436 where there is a bequest to A for life with a remainder to "the heirs of A 's body " 437 there are decisions which seem to hold that upon a bequest to A for life and then to A's heirs, the Bule applies and A has an absolute interest 438 suppose the limitations of personal property are included in / a residuary gift of real and personal property to A for life and then to A's heirs 439 method of operation of the Eule: the Eule operates in no manner whatever upon the estate of freehold in A, but only upon the remainder 440 character of the Bule: the Bule is not one of construction, but an absolute rule of law which operates to defeat the intent of the testator or settlor ". 441 SHIFTING FUTUEE INTEBESTS: (see Executory Devises, Fee Simple, Fee on a Fee by Beed, Classes.) created by deed or will are conditional limitations 301 defined 26, 443 cannot be created by livery of seisin 453 void under the feudal system of conveyancing 26, 451 by way of use: valid before the Statute of Uses 452 after the statute they became legal estates ; . . .72, 452 valid by way of use or by will . ." 72, 85, 453 reason why allowed under the Statute of Uses 458 equitable, valid 88, 472, 721 by deed: whether valid: interest in the question 443 origin of the question lies in the fact that the Illinois authorities are divided: cases in support of the validity of shifting interests by deed 444 against the validity of shifting interests by deed 445, 721 contentions : of the cases which seem to hold shifting interests invalid : stated 446 932 INDEX [References are to sections. The letter n after a section number directs atten- tion to the footnotes of that section.] SHII^TING PUTUEB INTEEESTS— Continued. repugnancy 447, 721 the common law rule that a fee cannot be lim- ited after a fee 448 of cases which hold the shifting interest by deed . ) valid 449 reasoning of both lines of cases valid so far as it goes: general view 450 the common law system of conveyancing 451 , development under the Statute of Uses 452 the principles of the common law and of the system of conveyancing which developed under the Statute of Uses exist side by side as part of the law -of Illinois today 453 the special issue ' 454 shifting limitations by deed may be supported here by force of the Statute of Uses: conveyances by deed in Illinois have never operated under the common law 455 conveyances by deed in Illinois have always taken effect under the Statute of Uses 456 the fact thjit our deeds in Illinois may operate under the acts of 1827 and 1872 cannot interfere with the validity of shifting interests created by them. . 457 shifting interests by deed may be supported in Illinois under the acts of 1827 and 1872 458 the tendency to hold shifting future interests by deed invalid is reactionary: character of the changes in the law of conveyances. . 459 the attitude of our supreme court 460 the weight of authority in this state is in favor of the validity of shifting interests by deed 461, 462 by will, whether valid (see Executoet Dkvises) 467 et seq. by exercise of power 73, 468, 610 indestructible when valid 483 how far alienable 476 n, 479-481 subject to the rule against perpetuities 662 SOCAGE: (see Tenure.) SPECIFIC PERFOEMANCE: (see Equity.) SPENDTHEIFT TEUSTS: (see Eesteaint on Alienation.) validity of 730, 731 if valid, then postponed enjoyment of absolute equitable interests valid 732 the converse does not necessarily follow 738 933 INDEX [References are to sections. The letter n after a section number directs atten- tion to the footnotes of that section.] SPOUSE : whether surviving, included in gift to heirs at law 573-574 SPBINOING PUTTJEE INTERESTS: defined 26, 33, 442 contingent future interests after terms for years are 33, 307 validity of: under feudal system of conveyancing 26, 33, 451, 452 after the gtatute of Uses 72, 452 when created by deed: equitable are valid 88, 472 legal '. 463-466 when created by will: equitable valid 88, 472 legal valid 85, 467-471 (see BxEcuTOEY Devises.) result from the exercise of powers 73, 468, 610 indestructible , ' 483 who entitled to intermediate income in case of 207-209 subject to rule against perpetuities 113, 662 transfer of 479-481 whether vested or executory : 476 n, 482 STAEE DECISIS: as applied to constitutional questions 291 n STATE : right of, on dedication by canal commissioners or trustees 299 STATUTES: (see Constitctional Law, Construction op Stat- utes.) English : 5 Eich. II, ch. 7 (Forcible Entry and Detainer) 266, 270 13 Ed. I, c. 1 (De Donis) 15, 195, 402 n, 409 n 18 Ed. I, c. 1 (Quia Bmptores) 7, 13, 230, 283, 286 8 Hen. VI (Porcible Entry and Detainer) 258 1 Eich. Ill, c. 1 (Uses) 50 4 Hen. VII (Incidents of Wardship) 50 4 Hen. VII, c. 24 (Fines) .' 17 21 Hen. VIII, ch. 4 (Survival of Powers) 619 27 Hen. VIII, ch. 10 (Statute of Uses) 53, 307, 452, 456, 610 27 Hen. VIII, ch. 16 (Statute of Enrollments) 60, 456 32 Hen. VIII, ch. 1 (Statute of Wills) 84, 307, 325, 452, 467, 610 32 Hen. VIII, ch. 34 (Covenants and Conditions in Leases) 241, 379 934 INDEX [ Eeferences are to sections. The letter « after a section number directs atten- tion to tlie footnotes of tliat section,] STATUTES— Continued. 32 Hen. VIII, c. 36 (Fines) 17 21 Jae. I (Forcible Entry and Detainer) '. 258 12 Car. II, ch. 24 (Abolition of Military Tenures) 8, 460 29 Car. II, ch. 3 (Statute of Frauds) 325 4 Anne, ch. 16, § 9 (Attornment) 379 10 and 11 Wm. Ill, ch. 16 (Bights of Posthumous Child) 326 39 and 40 Geo. Ill, c. 98 (Statute on Accumulation, Thellus- son Act) 701 1 Wm. IV, ch. 46 (Illusory 4-PPointments) 614 7 Wm. IV and 1 Vic, c. 26 (Wills Act) : sec. 3 (Contingent Interests Devisable) 325 s6a. 27 (What Words Exercise a Power) 641 sec. 29 (Meaning of "Die without Issue") 544 sec. 30 (Estate which a Trustee Takes) 187 8 and 9 Vic, ch. 106 (Real Property Act) : sec. 8 (Contingent Remainders Indestructible) 106 31 Vict., c. 4 (Sales of Reversions) 370 37 and 38 Vic, c. 37 (Non-exclusive Powers) 615 40 and 41 Vic, ch. 33 (Contingent Remainders Indestruct- ible) , 106 Arkansas : Sandels & Hill, Digest of Stat. (1894), p. 253, ch. 29, sec 700 (Entails) '. 402, 403, 409 Colorado : R. S. 1877, eh. 18, sec 6; Mills Ann. Stats., vol. 1, p. 584, sec 432 (1891) (Entails) 402, 403, 409 IlUuois : adopted prior to Revised Statutes of 1874 and not appearing therein : acts relating to the Illinois and Michigan canal and the power of the canal commissioners and trustees to dedi- cate street, etc 297-299 R. S. 1827, p. 230; R. S. 1833, p. 311; R. S. 1839, p. 313; R. S. 1845, ch. 43, p. 256 (Forcible Entry and De- tainer) .' 258, 266 Laws 1865, p. 108, sec 4 (Landlord and Tenant) ... 248, 253 Laws 1851, p. 112 (Vacation of Streets) 288,287-299 Laws 1865, p. 130 (Vacation of Streets) 288, 287-299 appearing in Revised Statutes of 1874: ch. 3 (Administration of Estates) : sec. 37 (Survival of Power to Administrator, w. w. a.) 621 sec. 97 (Exercise of Power; Survival of Power to Executor) 618-620 chap. 4, sec. 5 (Adoption Act) 585 935 INDEX [Keferences are to sections. The letter n after a section number directs atten- tion to tile footnotes of tbat section.] STATUTES— Continued. chap. 22, sec. 49 (Creditors' BiUs) 316, 731 ehap. 28, sec. 1 (Common Law) 453, 619 chap. 30 (Conveyances) : sec. 1 (Conveyance by Deed Valid) 307, 379 n, 457, 458, 464, 476 see. 2 (Statute of Uses of Eieh. Ill) 457 see. 3 (Statute of Uses) 453 sec. 5 (Joint Tenancy) 210, 315 sec. 6 (Entails). 293, 318, 402, 403, 409, 469, 565, 716 sec. 9 (Warranty Deed) ^ 457, 458 sec. 10 (Statutory Form of Quit Claim Deed) . . . 307, 457, 458, 480, 481 sec. 13 (Words Sufficient to Create a Eee Simple) 156 et seq. effect of, on Rule in Wild's Case 561-562 sec. 14 (Rights of Posthumous Child) 326 sec. 3 (Recording Act) 397 sec. 34 (Suspension of Right to Exercise Power ■ by Foreign Executors) 613 chap. 32 (Corporations), sec. 26 (Foreign) 613 ehap. 39 (Descent) : sec. 1 (Rules of) 381-382, 409 sec. 11 (Death of Devisee, being a child, etc., of testator) 534, 598 chap. 57 (Forcible Entry and Detainer) 259 chap. 76, sec. 1 (Joint Interests) 210-215 chap. 77 (Sale on Execution), sees. 3 and 10 308, 309, 327 chap. 80 (Landlord and Tenant) : sec. 4 (One-half Year's Rent in Arrear) 236, 246 sec. 8 (Demand for Rent) 238, 239, 249, 250, 253 sec. 9 (Notice to Quit). .237, 239, 247, 250, 251, 253 sees. 10 and 11 (Service of Demand or Notice) . 252 sec. 14 (Remedies Extended in Favor of the Gran- tee, etc.) 241, 379 chap. 83 (Limitations) .232 sec. 1-10 (Adverse Possession against Reversion- ers and Remaindermen) 383 et seq. sec. 11 (Mortgages) 232 chap. 109 (Plats.) 228, 285-286, 287-289, 292 chap. 145 (Vacation of Streets) 288, 287-299 chap. 148 (Wills), sec. 1 (What may be Devised) ... 325 adopted since the Revised Statutes of 1874: Laws 1879, p. 211 (Power of sale in mortgages and trust deeds invalid) 610 n 936 INDKX [References are to sections. The letter n after a section number directs atten- tion to tlie footnotes of tliat section.] STATUTES— ^Continued. Laws 1887, p. 144, and Laws 1889, p. 99 (Foreign corpo- rations having power to act as executors) 613 Laws 1907, p. J (Statute on Accumulations — Thelluason Act) 701 Indiana : Adoption Act 584 et seq. Kentucky : Statutes (1903), sec. 2360 (Kestraints on Alienation) 737 Maine : E. S. (1841), ch. 91, sec. 10; Eev. Stat. (1871), ch. 73, see. 5 (Contingent Eemainders) 106 Massachusetts : E. S. (1836), ch. 104; Gen'l Stats. (1860), ch. 137; Pub. Stats. (1882), ch. 126, sec. 15, ch. 175; Eev. Laws (1902), ch. 136, sec. 15, ch. 181 (Forcible Entry and Detaiuer 'Statutes) 259 E. S. 1836, eh. 59, sec. 7; Eev. Laws (1902), p. 1268, sec. 8 (Contingent Eemainders Act) 106 Laws 1780-1791, p. 124, act of Mar. 9, 1784 (Descent) 409 n Adoption Act 584 et seq. Missouri : E. S. 1825, act on conveyances, sec. 4; E. S. 1835, act on con- veyances, sec. 5; E. S. 1845, act on conveyances, sec. 5; E. S. 1855, ch. 22, sec. 5; E. S. 1866, ch. 108, see. 4; Wag- ner ?s Mo. Stat. 1870, p. 1351, §4; E. S. 1879, p. 675, § 3941; E. S. 1899J vol. 1, § 4592 (Statutes on Entails) . .. . 402, 403, 409 New Jersey: . Eev. Stats. (1820), p. 299, sees. 10 and 11; Eev. Stats. 1821, p. 744; sec. 2; Elmer's Digest, p. 130, sec. 6; Stat. 1874, p. 341, see. 11; Nixon's Digest, 1709-1855, p. 196, sec. 11; Gen'l Stats. (1709-1895), vol. 2, p. 1195, sec. 11 (Statutes on Entails) 402 New York: ' E. S., part 2, sec. 1, tit., 2, art. 1, § 32, p. 725 (On Contin- gent Eemainders and Gifts Over on Intestacy) 357, 723 Pennsylvania : ' Session Laws of 1832-3, p. 315 (Descent) 409 m Ehode Island: Adoption Act 584 et seq. South Carolina: 1 Eev. Stats. (1893), ch. 66; Code of Laws (1902), vol. 1, § 2465 (Contingent Eemainders) ; 106 - ■ Texas : ' , . ' Battis' Am. Civ. Stat. (1897) §626 (Contingent Eemainders) 106 937 INDEX [Keferenceg are to sections. The letter n after a section number directs atten- tion to the footnotes of that section.] STATUTES— Continued. Vermont: G. L. (1862), eh. 64, sec. 1, p. 446; V. S. (1894), ch. 105, sec. 2201, jj. 426 (Statutes on Entails) 402, 403, 409 STATUTORY ESTATES: in place of estate tail (see Fee Tail) : STBEETS AND ALLEYS: (see Abutting Owner, Dedication.) STRICT SETTLEMENT: description 9! 18 SUBLETTING: conditions against, valid 254, 715 SUBSTITUTIONAL GIFTS : 305, 506 SUIT IN CHANCERY: when holder of futjire interest would not be made party to 400 SURRENDER: by tenant 254 SURVrVOE: construed ' ' other " : ' the typical case where ' ' survivor ' ' is construed ' ' other " . . . . 602 suppose in the typical case given the ultimate gift over on the death of all the tenants for life without leaving issue I be eliminated 603 suppose, while leaving the original gifts to individuals for life then to their issue, the gift over be to the survivor absolutely and not merely to the survivor for life and then to the^ survivor 's issue 604 suppose the first gift to A and B is absolute (inatead of being for their lives with remainder to their issue), with a gift over if either die without leaving issue, to the survivor .... 605, suppose the limitations are to sons absolutely at twenty-one, and to daughters for life, and then to their issue, but if either sons or daughters die before the period of distribu- tion without issue, then to the survivors 606 suppose all the shares are "settled" on daughters, as in the typical case, and suppose one daughter dies without leaving issue and then . her issue all die ; subsequently another daughter dies without issue; do the representatives of the issue of the first daughter take a share of the interest of the daughter dying without issue 607 gift to '. 336, 343 938 INDEX [Ueferences are to sections. The letter n after a section number directs atten- tion to the footnotes of that section.] SUBVIVORSHIP: contingency that remainderman survive the life tenant (see Vested Eemaindbbs) : contingency that legatee purvive the period of distribution (see Legacies, Vestino op) : implication of a contingency of, from gift over 345 et seq. period to which survivorship is referred in gifts over to survivors. 528 m TAIL, ESTATE: (see Pee Tail.) TENANCY: at sufferance 21, 233 n at will 21 TENANTS IN COMMON: implication of Cross remainders among 22, 214, 600, 601 TENUEE AND ITS INCIDENTS: the feudal system of tenures 1, 451 ' military tenures. ..•. 2 necessary services 2 incidents , , 3 socage tenures 4 Mnds 4 services and incidents 5 Erankalmoigne temire 6 effect of the Statute of Quia Emptores 7 eflfect of the Statute of Charles II 8 tenure in the United States 9 TEBMS EOR YEAES: (see Chattels Eeal, Conditions, Eor- FEiTURE, Landlord and Tenant, Notice to Quit, Sent.) origin of 21, 70, 235 why personal property 235 may be subject to a condition subsequent 218 subject to implied condition that tenant shall not repudiate the tenancy and claim agaipst the lessor. 233 subject to statutory forfeiture for breach of covenants or stipu- lations 234-239 who may take advantage of a breach of condition attached to. . 241 mode of perfecting forfeiture: for non-payment of rent 246-250, 252, 253 for cause other than non-payment of rent 251, 252, 253 as altered by the agreement of the parties .254, 255 election necessary to perfect forfeiture of 278 demand for rent, how far necessary to perfect forfeiture 278 939 INDEX [Heferences are to sections. The letter n after a section numbey directs atten- tion to tile footnotes of tbat section.] TEEMS POK YEAES— Continued. / forfeiture upon alienation of, valid 715 restraints on alienation of 730-731 concurrent leases 241 covenants for renewal 752 n covenant against assignment of 277, 279 passes to executor or administrator 235 transfer by bargain and sale without entry 452 no remainder after 61 not too remote, therefore, though the term be for 1,000 years 654 contingent future interest after, validity of 31-33, 80, 307, 452, 465 THELLTJSSON ACT: (see Accumulations.) TOEEENS LAW: 459 TOETIOlTS CONVEYANCE : 46 TRANSPEE: of right of entry for condition broken 285, 293 (see Entry, Eight or, fob Condition Broken.) of contingent remainders: (see Contingent Ebmaindebs.) of dedicator's right after a statutory dedication 285, 287, 293 of executory devises (see Executory Devises) 479, 481 heir's expectancy may be transferred 374 of remainders: (see Eemaindees.) of reversions: (see Eeversions.) a waiver of a cause of forfeiture 280 of possibility of reverter: (see Possibility op Eeveeter.) of springing and shifting interests: (see Springing Inteeests, Shifting Interests.) TEESPASS: how far may one put out of possession by one having^ the right to possession sue in 262-276 (see Forfeiture.) plea of liberum tenementum,: form at common law 262 form under Illinois Statute of Porcible Entry and Detainer 265, 274 to chattels: defense of right of possession 270 TETJST DEED BY WAY OP M0ET6AGE: power to appoiftt new trustee is valid 444 Shifting interest to successor in trust valid. 444 power of sale in 610 n 940 ' INDEX [ Kefeiences are to sections. The letter n after a section number directs atten- tion to tlie footnotes of tliat section.] TEUSTBE: (see Trusts.) proper investments by 492-493 power to appoint new trustee 444 new trustee appointed to exercise power 621, 624 power of sale and lease in .-. . 643-646 survival of power of sale to new trustee 624 et seq. power of court of equity to break in on trusts and give power of sale to 647 new, substitution of by conveyance to uses 452 canal trustees: (see Canal Commissioners and Trustees.) to preserve contingent remainders 78 joint interests in 212 estate which trustee takes: / introductory ., 183 testamentary trusts f 184 uases where there are no explicit words of devise to the trustee 184 cases w'here there are explicit words of devise to the trustee 185 effect of E. S. 1874, Ch. 30, See. 13 185 where real estate is devised to trustees and an estate for the life of the beneficiary is expressly indicated 186 where real estate is devised to trustees, although with words of inheritance, or where such words are sup- plied in effect by E. S. 1874, Ch. 30, Sec. 13, prima fade the trustees take only so much of the legal estate as the purposes of the trust require 187 a fortiori,, where no words of inheritance are used and no statute like E. S. 1874, Ch. 30, Sec. 13, exists, the trustee takes only such estate as the purposes of the trust require 188 where there are words of devise to the trustee and the trustee is given power to sell and convey the fee and is directed to wind up the trusts by making an actual division among the beneficiaries and con- veyances to them, the trustee takes the fee 189 where there are words of devise to the trustee and he is to make conveyances upon the termination of the trusts, but has no power of sale 190 where there are words of devise to the trustee and he is given power to sell but not directed to con- vey to the beneficiaries at the termination of the trusts 191 where there are words of devise to the trustee and power to make leases, but no power to sell the fee 941 INDEX [References are to sections. The letter n after a section number directs atten- tion to the footnotes of that section.] TEUSTEE— Continued. and no direction to convey to the beneficiaries at the termination of the trusts '. 192 where the trusteeship is created by a conveyance inter vivos. . 193 TpUSTS: origin of, in uses Vhich the statute did not execute : 68 origin and reappearance of trusts of land 87 equitable estates in land T 88 the Rule in Shelley's Case applied to equitable interests in land. . 89 dry trust executed by Statute of Uses 67, 69 of personal property: ^ future interests in ; 112 springing and shifting equitable interests valid 472 requirement that trusts shall remain indestructible for too long a time, void 658-660 for perpetual care of cemetery lot 660 to pay debts and legacies: application of Rule against Perpetuities 666-676 spendthrift: (see Restraints on Alienation.) restraints on alienation attached to equitable fees 739-741 executory — Rule in Shelley's Case does not apply 430 et seq. constructive trust for payment of debts and legacies supplied the loss of a power which did not survive 622-623 whether constructive trust supplies want of gift in default of appointment 637 indestructibility of absolute equitable interest: (see Postponed Enjoyment)^ '. 732-738 Teal estate, whether void for remoteness 658-661 for charitable purposes — whether void for remoteness 697 whether cestui 's interest subject to garnishment 731 powers in trust: (see Powers.) UNCERTAINTY: when gift to charity fails for 697 « gift over on intestacy of personal property void for 722 gift over of personal property after a life interest with full power in life tenant to dispose or use up principal not void for 486, 486 n, 722 UNMARRIED : meaning of 552 n USES: before the statute 262 , uses defined 49 origin of uses 50 942 INDEX J [References are to sections. The letter n after a section number directs atten- tion to the footnotes of that section. ] USES— Continued. enforcement of the use by the cestv/i 51 position of the feoffee and cestvA que use at law as distingfuished from, their position in the chancery. 52 statute of 53, 249 after the statute 452, 453, 458, 464 raised on transmutation of possession: defined 54 transmutation of possession and an express declaration of the use 55 transmutation of possession /and the payment of a con- sideration 56 transmutation of possession, declaration of the use by one and payment of the consideration by another 57 resulting uses 58 after the statute: raised without transmutation of possession: defined 59 the bargain and sale and Statute of Enrollments 60 the Statute of Enrollments avoided by the "lease and release " 61 no particular form of words is necessary to make a bar- gain and sale .' 62 covenants to s1;ana seized 63 summary . . . ; 64 after the statute: operation of the statute 65 uses which the statute did not execute: suppose A seized in tail or for life were directed to hold to the use of one in fee 66 uses which the statute did not execute 67 status of uses which the statute did not execute 68 whether or not the statute executes a use is to be deter- mined finally at the time the use is created 69 after the statute: estates and liniitations by way of use: estates of freehold and less than freehold in possession 70 future interests 71 those permitted by the feudal land law could be created by way of use 71 some not permitted by the feudal land law were valid when created by way of use 72 springing and shifting uses 72 powers 73 limitations to classes by way of use 74 943 INDEX [KefeTences are to sections. The letter n after a section number directs atten- tion to the footnotes of that section.] USES — Continued. conveyance creating estates will take effect in any way possible 75 basis for new freedom in creating estates and future interests 76' contingent remainders by way of use 77 the rule of destructibility applies 77 trustees to preserve contingent remainders 78 the feudal distinction between vested and con- tingent remainders continued to be important 79 contingent future interests by way of use after terms for years 80 the Rule in Shelley 's Case 81 alienability of future interests created by way of use ... 82 use after a use 67 use on a use 67 a dry trust ' 67 with active duties, a trust 67, 69 summary of changes wrought by statute of 83 conveyancing, under the Statute of Uses ....;.. 452 (see also: Fee Simple, Fee on a Feb, Shifting and Springing Future Interests, Eemaindees, Reversions, Contingent Re- mainders.) VACATION OF DEDICATION: (see Dedication.) rights of dedicator on 284-285 rights of abutting owners on 287-299 of streets in canal trustees' subdivision^ effect of; 296-299 (see Canal Commissioners and Trustees.) VEST, VESTED, VESTING: 1^ meaning of, in Rule against Perpetuities 117-118, 654 when springing and shifting future interests vest 482 ^ meaning of as applied to remainders which are uncertain ever to take effect because of divesting clause 328 rule that favors construction of vested interests 329 ir- sense in which vest is used when question is as to vesting of legacies 495, 496 when equitable interests in land or in a mixed residue of real and personal property are involved 528 '^ vesting of legacies: (see Legacies.) future interests in personal property, when vested 489, 490 vested interests not subject to Rule against Perpetuities 118, 654 yet in one case a vested interest in a member of a class may fail for remoteness vrith the gift to the whole class. . 684 determination of classes doe? not depend upon whether members of the class take vested interests 653 944 INDEX [Keferences are to sections. The letter n after a section number directs atten- tion to tile footnotes of tliat section.] VEST, VESTED, VESTING— Continued. application of the Rule against Perpetuities to vested gifts to classes 678-680, 684 VESTED REMAINDERS: distinction between vested and contingent 29, 79, 96 examples and characteristics of 308 subject to be divested 327, 328 problems of construction in determining whether a remainder is vested or contingent: introductory , 329 limitations to A for life, remainder to B "after the death of A" 330 where the limitations are to A for life and " if B overlive A, ' ' then to B for life , 331 remainders in default of appointment 332 where the limitMions are by devise to A for life, remainder to B (an individual as distinguished from a class), "if" or "when" he shall attain a given age, or "at" a given age, with a gift over in, the event of his dying under that age 333 suppose the life estate be omitted and limitations are directly to A "if," or "when" he shall attain twenty-one, with a gift over in case he dies under that age 334 where the limitations are by devise to A for life, then to the children of A (a class), "at," "when," or "if" they attain twenty-one, with a gift over in default of children who attain twenty-one 335 where the remainder is to " the children of A who shall attain twenty-one" or "to such children of A as shall attain twenty-one," with a gift over in default of children attain- ing that age 336 limitations to A for life, remainder to B "if he survive A; if he does not," to C 337 limitations to A for life, remainder to the children of A "who survive, ' ' and if any die before A, to their children, if any ; if not, then over 338 where the limitations are to "A for life, remainder to the children of A who survive A, and to the children of any who do not survive A, ' ' without any further gift over 339 where the limitations are to A for life, remainder to B "if he survive A," and if he does not and dies without leaving issue, over to C 340 where the limitations are to A for life, remainder to "his children surviving him," with a gift over if A die "with- out issue surviving him " 341 Kales Fut. Int.— 60 g^g INDEX [References are to sections. The letter » after a section number directs atten- , tion to the footnotes of that section.] VESTED EEMAINDEES— Continued. where the limitations are to A fpr life, remainder "in case A dies leaving any children surviving, ' ' to them, ti\e issue of any child taking their deceased parent's share; but should A survive all the children (they having died without issue), then to A 342 remainder to A, B and C, "or the survivor or survivors" of them 343 limitations to A and B for life and in case of the death of either, to the other 344 cases wljiere a remainder has been limited without any explicit condition precedent in form that the remainderman survive the life tenant, but where there has been a gift or gifts over in case the remainderman dies before the life tenant 345 bearing ,of the results noted in the preceding sections upon the problem of construction now presented 345 where the remainder is to named individuals with a gift over if any die before the life tenant, to survivors .... 346 where the remainder is to named individuals or to a class, with two gifts over — ^usually one, "if any die leaving •children, to such children," and the othpr, "if any die without children, to the survivors," or "if all die with- out children, to A" , 347 where the remainder is to named individuals (who are adults), or to a class (m esse and adult), vnth a single gift over if any die without leaving children or issu^ to the survivors 348 where the remainder is to the unborn children of the life tenant with a single gift over if the life tenant dies without leaving children or issue surviving 349 where the remainder is to named persons or to a class, with a single gift over if any die before the life tenant leaving children, then to those children 350 suppose the remainder be limited " to the life tenant 's children who survive the life tenant and in case any die leaving chil- dren, to such children," is the ultimate gift over also con- tingent upon the grandchildren surviving the life tenant. . . 351 suppose there is first a contingent remainder to the life tenant 's surviving children or to her lipeal heirs and then a remainder is limited to a class upon the life tenant's dying without leaving children or issue, is the second remainder to the class also contingent upon the remainderman surviving the life tenant 352 effect on vesting of the fact that the remainder is limited to a class 353 946 INDEX [Eeferences are to sections. The letter n after a section number directs atten- tion to the footnotes of that section.] VESTED EBMAINDERS— Continued. effect of special directions that the remainder is to "vest" or "become absolute" on the death of the life tenant 354 whether a future interest is a vested remainder subject to a, charge, or a springing executory interest contingent upon the one to whom it is limited paying a sum after the termination of the life estate , 355 cases dealing with whether there is a condition precedent in form that the remainderman survive the life tenant where personal property is involved, are not authoritative where real estate is involved ; y 356 New York statutory definition of vested and contingent remainders : the New York statutory distinction between vested and con- tingent rettiainders 357 the Illinois cases regularly and without exception assume the common law or feudal distinction between vested and con- tingent remainders to be in force in this State and endeavor to apply it, and have explicitly rejected the New York statutory distinction , 358 cases which it is claimed show the adoption in Illinois of the New York statutory distinction in every instance, excepting one, will be found to reach a proper result without applying the New York doctrine, and the one case which did apply the New York statutory distinction, and another purporting i to follow it, have been in terms overruled 359 cases dealing with the statutory remainder created by the Statute on Entails 359 Voris V. Sloan 360 Smith V. "West 361 Siddons v. Oockrell 362 Kellett V. Shepard 363 Burton v. Gagnon 364 Boatman v. Boatman 365 Chapin v. Nott 366 Euddell V, Wren 367 Orr V. Yates 368 WAIVER: as a defense to forfeiture 280 WARRANTY: as a method of barring estates tail 17 passing of title by 321-323 WASTE: right of holder of future interest to prevent. . . / 399, 465, 494 947 INDEX [References are to sections. The letter » after a section number directs atten- tion to the footnotes of that section.] WILLS: (see Devise, Intbepeetation or Writings, Executobt Devise.) origin under the Statute of Wills of Henry VIII 84 limitation of estates by devise 85 devise as a mode of alienation y. 86 WORDS AND PHRASES: (see Heibs, Issue, Children, Grand- children, Survivors.) limitations to "A or his heirs ' ' : where there is no preceding estate 170 in a conveyance mter vivos 170 by way of devise 171 where there is a preceding life or other estate 172 limitations in a conveyance inter vivos 172 by way of devise 173 meaning of "or his heirs" where the words introduce a substitutionary gift 174 where there is a preceding life estate with gifts over on con- tingencies, with an ultimate gift over to "A or his heirs". . 175 where the ultimate gift is to the grantor "or his heirs" 176 "after the death of A": effect of 162, 163, 529 distributive construction of .' 206 where it commences the limitation of a remainder 330 "in ease of A's death" 530 "if B outlive A" 331 WRITINGS: interpretation of: (see Interpretation op Writings.) 948