Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Macon County,
the Hon. Albert G. Webber III, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 29, 1981.
This is an action for partition and an accounting. The circuit court of Macon County entered a decree granting the relief requested. On appeal by defendants, the appellate court reversed the judgment of the circuit court and ordered that the property in its entirety be awarded to defendants. (80 Ill. App.3d 270.) We allowed plaintiffs leave to appeal.
The facts relevant to the disposition of this cause have been adequately developed in the appellate court opinion and as stated therein are as follows:
"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."
The circuit court ruled that Sard Giles' will created alternative contingent remainders and that both remainders had failed. The court reasoned that the first contingent remainder, to the heirs of the body of Leta Timmons, failed at the date of her death without issue. The court further reasoned that the alternate contingent remainder, to Elmo S. Giles, Sr., for life with remainder to the heirs of his body, failed because both he and Elmo S. Giles, Jr., predeceased Leta Timmons. The court accordingly ruled that the failure of both remainders caused the property to revert to Sard Giles, to pass by intestacy to Leta Timmons and Elmo S. Giles, Jr., and thereafter to be distributed under the wills of Leta Timmons and Elmo S. Giles, Jr. The court then entered its decree partitioning the property, as requested by plaintiffs. The appellate court, one justice dissenting, reversed the judgment of the circuit court. (80 Ill. App.3d 270.) Relying primarily upon the decision of the court in Hofing v. Willis (1964), 31 Ill.2d 365, and the public policy against partial intestacy, the appellate court reasoned that a contingent remainderman, such as Elmo S. Giles, Jr., in the absence of an express provision by the testator, need not survive the life tenant in possession, Leta Timmons. The appellate court therefore ruled that the property in its entirety should pass under the will of Sard Giles to Elmo S. Giles, Jr., and thereafter according to the will of Elmo S. Giles, Jr., to defendants. We affirm.
The parties agree that the devise in question created alternative contingent remainders, and they agree that the first contingent remainder failed on the death of Leta Timmons without issue. Plaintiffs contend, however, that a condition precedent to vesting of the alternative remainder of Elmo S. Giles, Jr., is that he and Elmo S. Giles, Sr., survive Leta Timmons.
As noted by the appellate court, a threshold issue in characterizing the respective interests of the parties is the application of the Rule in Shelley's Case. That rule, in effect at the date of testator's death, 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 expressed, as noted by one commentator, is a condensed statement of the common law, for it is not the Rule in Shelley's Case which creates in the first taker a fee or a fee tail, but the operation of the doctrine of merger. (Young, The Rule in Shelley's Case in Illinois: A New Analysis and Suggestions for Repeal, 45 Ill. L. Rev. 173, 186 (1950).) The Rule in Shelley's Case operates only on the contingent remainder given to the heirs of the ancestor, converting the contingent remainder into a vested remainder in the ancestor himself. The doctrine of merger then operates to vest in the first taker a fee or fee tail. (Moynihan, Introduction to the Law of Real Property 142 (1962).) The Rule in Shelley's Case is applicable to remainders limited to the heirs of one's body (Barker v. Walker (1949), 403 Ill. 302, 306; Winchell v. Winchell (1913), 259 Ill. 471, 475; see generally Young, The Rule in Shelley's Case in Illinois: A New Analysis and Suggestions for ...