Appeal from the Circuit Court of St. Clair County; the Hon.
Francis E. Maxwell, Judge, presiding.
PRESIDING JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:
The defendant, Margaret W. Trauernicht, appeals from a final judgment of the circuit court of St. Clair County which, after a trial on the merits of the case, quieted title to certain real estate in favor of the plaintiff, Belleville National Bank. The defendant contends first that a contingent remainder created by deed in 1913 under section 6 of the Illinois Conveyances Act (Ill. Rev. Stat. 1919, ch. 30, par. 6, current version at Ill. Rev. Stat. 1981, ch. 30, par. 5) could not be destroyed in 1919 by conveyances merging the life estate and the reversion in fee in a third party (the plaintiff's predecessor in interest). Second, the defendant asserts that the deed creating the contingent remainder precluded destruction of the contingent interest by virtue of an implied covenant. The defendant's final contention is that the deed which created the contingent remainder also created a trust sufficient to preserve the contingent interest. We affirm.
In 1913, the defendant's grandparents, William C. Penn and Margaret A. Penn, executed a deed conveying to their daughter, Gladys L. Penn, a life estate in certain real property. The deed provided that the "conveyance is made subject to the following terms, conditions and reservations, to-wit:
First - The said grantors hereby reserve to themselves a life estate in the above described real estate to continue and exist during the joint lives of these grantors and also during the lifetime of the survivor of them; * * * Second - And upon the death of both of these grantors, then and in that event, any Court having legal jurisdiction of the matter, shall appoint some competent person or corporation to act as trustee for the said grantee, and such trustee after giving a good and sufficient bond for the faithful performance of his duty as such trustee, shall thereupon have the control and management of said real estate, * * *. Said trustee shall from time to time, and as often as it may practically done, pay over to the said grantee the net rent and income collected by said trustee from said real estate, during her natural lifetime; and said net rent and income shall by said trustee be paid in cash into the hands of the said grantee in person, or by draft or check payable directly to her, and not upon any written or verbal order, nor upon any assignment or transfer made by the said grantee. And at the death of said grantee said trust shall cease and be determined and said real estate shall vest in the heirs of the body of the said grantee, and in default of such heirs, said real estate shall descend to the heirs of the body of the said William C. Penn then living, according to the laws of the State of Illinois, then in force regulating descents.
This conveyance is made by the grantors for the purpose of assuring to their said daughter Gladys Lucille Penn a fixed income, after the death of these grantors, during the remainder of her natural life."
The parties stipulated that when William C. Penn died on January 14, 1914, his only heirs at law were Margaret A. Penn, his widow, and his children Frederick H. Penn, Eugene A. Penn, and Gladys L. Penn. William C. Penn's last will was admitted to evidence pursuant to stipulation.
On October 30, 1919, Margaret A. Penn, Eugene A. Penn, Gladys Lucille Penn, Frederick H. Penn and his wife Roxie Penn, executed a conveyance to the Belleville National Bank and Trust Company. This conveyance recited that "it is the aim, object and intention of the life tenants, Margaret A. Penn and Gladys Lucille Penn, as also the other heirs of William C. Penn, deceased, viz: Frederick H. Penn and Eugene A. Penn, to convey an absolute fee simple title to a part of said real estate, and to destroy all contingent remainders created by said deed of conveyance * * *."
On September 15, 1926, Gladys Lucille Penn married S.M. Wallace and on September 2, 1927, the defendant, Margaret Penn Wallace, was born of that marriage. Gladys Penn Wallace gave birth to no other children. On September 7, 1949, Margaret Wallace married Carl Trauernicht. On December 8, 1980, Gladys Penn Wallace died.
The Belleville National Bank, successor in interest to the Belleville Bank and Trust Company, filed this action to quiet title. The defendant filed an answer and amended counterclaim and the case was submitted to the court on the exhibits, stipulations, and briefs of counsel. The trial court rendered judgment for the plaintiff and concluded that the 1919 deed "did effectively vest the fee simple title in the grantee" and "did destroy the contingent remainder in favor of the heirs of the body of Gladys Lucille Penn * * *." The court also concluded that the 1913 deed did not create a trust which would preclude Margaret Penn from conveying her life estate, nor did it create a completed trust, and that no intervening estate was created to prevent destruction of the contingent remainder. The court also concluded that the reversion in the property was in the heirs of the body of William C. Penn, under the terms of the 1913 deed, rather than in the devisees under his will. The court ordered title quieted in favor of the Belleville National Bank and the defendant thereafter perfected an appeal to this court from that order.
• 1 The defendant's first contention on appeal is that a contingent remainder created by deed in 1913 under section 6 of "An Act concerning conveyances" (current version at Ill. Rev. Stat. 1981, ch. 30, par. 5) could not be destroyed in 1919 by conveyances merging the life estate and the reversion in fee in a third party. We disagree.
Initially, we note that although a statute prevents the destruction of contingent remainders, it did not become effective until 1921 — after the conveyances in question (see Ill. Ann. Stat., ch. 30, par. 40, Historical Note, at 520 (Smith-Hurd 1969)) — and was not retroactive. Edmiston v. Donovan (1921), 300 Ill. 521, 525, 133 N.E. 237.
As the statute does not apply to the instant case, we next consider the defendant's argument that Frazer v. Board of Supervisors (1874), 74 Ill. 282, is authority for the proposition under consideration. Although Frazer supports the defendant's contention, a substantial line of cases decided after Frazer held that a conditional remainder could be destroyed by the premature termination of the life estate supporting the remainder through a merger of the life estate and the reversion in fee. (See, e.g., Edmiston v. Donovan (1921), 300 Ill. 521, 524-25; Brinkerhoff v. Butler (1921), 296 Ill. 368, 370-71, 129 N.E. 742; Lewin v. Bell (1918), 285 Ill. 227, 230, 120 N.E. 633; Messer v. Baldwin (1914), 262 Ill. 48, 51, 104 N.E. 195; Bond v. Moore (1908), 236 Ill. 576, 591-92, 86 N.E. 386.) The rule before 1921 was that:
"Every remainder requires a particular estate to support it, and a contingent remainder must vest during the continuance of the particular estate or eo instanti that it determines. (2 Blackstone's Com. 168.) If the particular estate comes to an end before the event upon the happening of which the contingent remainder is to take effect occurs, the remainder is defeated; and this is so whether the preceding estate reaches its natural termination or is brought to a premature end by merger, forfeiture or otherwise." (Bond v. Moore (1908), 236 Ill. 576, 591.)
The defendant argues that Frazer is nevertheless applicable to the instant case for two reasons. First, she contends that because Frazer involved estates in land which were created by deed, rather than by will, Frazer is distinguishable from, and therefore not necessarily overruled by, the line of cases beginning with Bond v. Moore. Second, the defendant argues that under the 1872 act concerning conveyances, estates fee tail constituted an exception to the general rule of ...