APPEAL from the Circuit Court of Madison County; the Hon. I.H.
STREEPER III, Judge, presiding.
MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
The city of Edwardsville, the first devisee of certain property devised by the will of one Ella Tunnell, appeals from a judgment of the circuit court of Madison County which held that the Southern Illinois Conference of the Methodist Church (the "Conference"), as second alternative devisee, acquired title to the property in question because the city did not comply with the terms of the will by accepting the devise in good faith as required by the will.
Ella Tunnell, who was long a resident of Edwardsville, died on the 12th of February, 1962. The 14th paragraph of her will said:
"I give and devise my home property located at 918 St. Louis St., Edwardsville, Illinois to the City of Edwardsville as a site for a hospital, provided the said city accepts this devise for the purpose specified within one year after my death and if the city does not accept this devise within one year after my death, then said property shall go to the Southern Illinois Conference of the Methodist Church as a site for an old folk's home or in its discretion as a site for a Wesley Memorial for the benefit of the Edwardsville branch of Southern Illinois University, provided the Southern Illinois Conference of the Methodist Church accepts the devise for the purpose specified within two years after my death. If neither the City of Edwardsville nor the Southern Illinois Conference of the Methodist Church accepts this devise for the purposes indicated within the time specified, I give and devise said property to the city of Edwardsville for use as a public park."
On February 5, 1963, the city of Edwardsville passed an ordinance which said that the city accepted the property as a location for a hospital. A year later, on February 4, 1964, the Conference adopted a resolution by which it tried to accept the residence as a place for a Wesleyan student foundation.
The city of Edwardsville has not constructed a hospital on the property. In 1968, the Conference sued for a declaration that it owned the property and was immediately entitled to possession.
The seventh paragraph of the Conference's complaint alleged:
"That at the time the City of Edwardsville attempted to accept said property as a site for a hospital it had no plans formulated for using said property as a hospital and had no funds available or earmarked for said purpose * * *."
In response to this assertion, the city said in the seventh paragraph of its answer:
"Defendant admits the allegations contained in Paragraph 7 of plaintiff's complaint and further states that the defendant did accept said property, performed all acts necessary in accepting said property, and that while no formal plans for use of the property as a hospital site were in process and none in process at the present time, the same was not a condition precedent or subsequent under the Will to acceptance of same."
Pursuant to section 57.1 of the Civil Practice Act (Ill. Rev. Stat. 1967, ch. 110, par. 57.1), the circuit court declared that the Conference was the owner of the property. To support this declaration the Conference advances a theory which has several parts. The Conference asserts that there were two conditions precedent to the vesting of the city's interest: (1) the city's acceptance of the property within one year of Ella Tunnell's death, and (2) the city's construction of a hospital on the property within a reasonable time after Ella Tunnell's death. The Conference says that the ordinance of February 5, 1963, was not an acceptance of the property unless it was passed by the city in good faith, that is, with the intention to build a hospital on the property. Because the city admitted in its answer that it "had no plans formulated for using said property as a hospital" when it adopted the ordinance, the Conference argues that the city admitted its lack of good faith and that the ordinance cannot be regarded as an acceptance. Because no hospital has been built on the property, the Conference says that the second condition precedent has not been satisfied by the city. The Conference therefore argues that neither condition precedent to the vesting of the city's interest was fulfilled and that the city's interest never vested.
To counter this theory, the city argues that acceptance was a condition subsequent to the vesting of its interest. The city contends also that the building of a hospital on the property within a reasonable time after Ella Tunnell's death was not a condition on the city's interest, but was, at most, an obligation imposed on the city by a covenant.
The parties agree, then, that the city's acceptance of the property within one year after Ella Tunnell's death was a condition on the city's interest. They disagree on whether the condition should be characterized as precedent or subsequent to the vesting of the city's interest.
The Conference and the city are unquestionably correct in agreeing that the city's timely acceptance was a condition. If the city failed to accept the property, the Conference was to have a chance to become the owner of the property. This thwarting of the city's ownership of the property could be accomplished only by the operation of a condition; that is, the city's acceptance was a condition on the city's ...