APPEAL from the Circuit Court of Macon County; the Hon. ALBERT
G. WEBBER, III, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 19, 1980.
This case concerns title to 320 acres of Macon County farmland. At issue is the construction of the will of Sard Giles who died November 22, 1925. Article Third of his will devised the land to his daughter Leta Timmons for life,
"* * * with remainder over to the heirs of the body of her, the said Leta Timmons, and in the event of the death of the said Leta Timmons without issue, then in that event, the real estate herein, * * *, I give, devise and bequeath to Elmo S. Giles for and during his natural life with remainder over to the heirs of the body of him, the said Elmo S. Giles."
The parties agree that this devise created a life estate in Leta Timmons followed by alternate contingent remainders.
On April 8, 1972, Leta G. Timmons died never having had children. The parties agree that this caused the failure of the first contingent remainder to the heirs of her body. Previously on February 9, 1951, Elmo S. Giles, son of Sard Giles, died leaving Elmo S. Giles, Jr., the only child ever born to him. On February 26, 1968, also prior to Leta's death, Elmo S. Giles, Jr., died never having had children. The precise question to be decided is whether all estates after the life estate of Leta Timmons failed causing the title to the tract, in the absence of a residuary clause, to revert to the heirs of Sard Giles, thus enabling plaintiffs as devisees of Leta Timmons to take her one-half interest in that reversion, or whether defendants, the devisees of the contingent remainder interest of Elmo S. Giles, Jr., take through him and are entitled to the remainder in fee.
Plaintiffs filed suit for partition and an accounting in the circuit court of Macon County on August 2, 1977. On March 16, 1979, the circuit court entered a decree finding that plaintiffs had a one-half interest in the property and holding survival of Leta Timmons by Elmo S. Giles, Jr., was necessary for defendants to have taken the entire interest. Defendants have appealed, asserting that neither rules of construction nor the expressed intent of the testator required Elmo S. Giles, Jr., to have so survived. Based upon our analysis of the interests created by Article Third of the will, we agree with defendants. Accordingly, we reverse.
The question presented is most complicated and requires lengthy analysis. We begin by discussion of an aspect of the case not discussed at length in the briefs: the question of the application of the Rule in Shelley's Case to the limitations set forth in Article Third of the will. That rule has been defined as follows,
"`In any instrument, if a freehold be limited to the ancestor for life, and the inheritance to his heirs, either mediately or immediately, the first taker takes the whole estate; if it be limited to the heirs of his body, he takes a fee tail; if to his heirs, a fee simple.' 1 Preston on Estates, 263." (Frazer v. Board of Supervisors (1874), 74 Ill. 282, 287.)
The rule was in effect at the time of Sard Giles' death and continued until abolished by legislation in 1953 (Ill. Rev. Stat. 1977, ch. 30, par. 186). Plaintiffs maintain that the rule does not apply to remainders given to the heirs of the body of a life tenant. Consideration of the question requires that we also consider section 6 of "An Act concerning conveyances" which at the time of the death of Sard Giles provided:
"In cases where, by the common law, any person or persons might hereafter become seized, in fee tail, of any lands, tenements 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 to whom the estate tail would, on the death of the first grantee, devisee, or donee in tail, first pass, according to the course of the common law, by virtue of such devise, gift, grant or conveyance." Smith-Hurd Rev. Stat. 1925, ch. 30, par. 5.
1 Absent the operation of the Rule in Shelley's Case, a limitation to A for life remainder to the heirs of A's body does not create an entailment but a life estate in A and a remainder to the heirs of A's body as a class. (See Hofing v. Willis (1964), 31 Ill.2d 365, 369, 201 N.E.2d 852, 854; Hauser v. Power (1934), 356 Ill. 521, 191 N.E. 64; Boon v. Boon (1932), 348 Ill. 120, 180 N.E. 792.) Thus, operation of the Rule in Shelley's Case is necessary to convert a limitation to A for life with remainder to the heirs of his body to an entailment. However, once this is done, section 6 of "An Act concerning conveyances" operates to substantially reverse the effect of the rule and change the limitation into a life estate in A with a remainder in fee to those who, under an entailment, would be the first takers upon A's death. It is for this reason that the rule is sometimes said to be inapplicable to remainders in the heirs of the body of the life tenant. See Winchell v. Winchell (1913), 259 Ill. 471, 102 N.E. 823; Simes, Handbook of the Law of Future Interests § 25, at 55 (2d ed. 1966) (hereinafter Simes).
2, 3 In any event, in the case before us, the parties agree that section 6 operated upon the limitation to Leta Timmons for life with, in effect, a remainder to the heirs of her body to create a life estate in Leta and a remainder which failed upon her death without having had issue. The dispute is as to the analysis of the alternate contingent limitation to Elmo S. Giles, Sr., for life with remainder to the heirs of his body. In Gehlbach v. Briegel (1934), 359 Ill. 316, 194 N.E. 591, the supreme court stated that the rule did not operate upon contingent remainders. If that were so, the contingent limitation here would have created a contingent life estate in Elmo, Sr., and a contingent remainder to the heirs of his body as a class. But subsequently in Richardson v. Roney (1943), 382 Ill. 528, 47 N.E.2d 714, that court criticized the language of Gehlbach and held that the rule does operate on contingent remainders.
Under Richardson, the rule did operate upon the effective date of the will and created a contingent entailment in Elmo, Sr. The question then arises as to whether section 6 then operated upon that contingent estate tail. That provision states it to be applicable when by the common law "any person or persons might hereafter become seized in fee tail * * *" (emphasis added). If the section does not take effect until someone is actually seized of an entailment, the contingent entailment to Elmo, Sr., never took effect and never could take effect because of the failure of that blood line before anyone in that line ever became seized of the property.
However, it would seem illogical to have allowed the Rule in Shelley's Case to operate upon the limitation to create a contingent fee in tail and then not permit section 6 to also operate at the same time to change that entailment to a contingent life estate with a contingent remainder in fee. To so hold would be contrary to the language in Winchell that the effect of section 6 was to nullify the operation of the Rule in Shelley's Case with respect to fee tail estates. We, therefore, conclude that if the Rule in Shelley's Case created a contingent entailment in Elmo, Sr., he was then a person who "might [thereafter] become seized in fee tail" in the ...