Appeal from the Circuit Court of Sangamon County; the Hon.
Simon L. Friedman, Judge, presiding.
JUSTICE MORTHLAND DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 13, 1986.
This is an appeal from a judgment of the circuit court ordering partition. The appeal is brought by various children and descendants of Ernest A. Wallbaum and William Conway Wallbaum. The appellees are the executor of the estate of Emma Mae Wallbaum, a sister of Ernest and William Conway; the guardians of a disabled adult, the surviving widow of a grandson of Emma's third brother Frederick C. Wallbaum; and the executor of the estate of Elaine Stilwell and Hudelson Baptist Children's Home, certain of the residuary devisees under the will of Emma Mae Wallbaum.
The basic facts are not in dispute. William Wallbaum during his life fathered four offspring by his three wives; Ernest A. in 1869, Frederick C. in 1871, Emma Mae in 1898, and William Conway in 1904. By various conveyances over the course of his life William deeded 561.03 acres to his son, Ernest, reserving a life estate in 361.03 acres; 579.25 acres to his son, Frederick, reserving a life estate in 319.50 acres; 208 acres to his third wife, Martha for her life, reserving also a life estate in himself, with remainder to the issue of that marriage their son William Conway; and 400 acres to his daughter, Emma Mae under certain conditions which will be developed more fully below.
The deed to Emma was executed by William on July 31, 1903. The instrument reserved a life estate in William in 400 acres and conveyed to Emma, a then 5-year-old child, a life estate. The portion of the deed in controversy further provides:
"And upon the death of said Emma Mae [sic] Wallbaum leaving children of her body her surviving, the above described real estate shall descend to such children Share and Share alike. The children of any deceased child, taking only the share which their parent would inherit if living. Upon the death of said Emma May [sic] Wallbaum leaving no such children her surviving the above described Real Estate shall descend to the heirs of said William Wallbaum, Share and Share alike. The children of any deceased child taking only the share which their parent would inherit if living."
William Wallbaum died testate at the age of 67 on January 9, 1905, leaving a will dated December 28, 1904. At his death, his four children Ernest, Frederick, Emma, and William Conway were his heirs at law. Ernest and Frederick were 35 and 33 years old, respectively, at the time of their father's death. Emma was 6 years old and William Conway was 3 months of age.
By his will, William devised all his property to his children and his third wife, Martha, in varying proportions. No devise was made of any interest in the 400 acres in question. The will did not contain a residuary clause.
Emma Mae Wallbaum died testate on March 6, 1984, having neither married nor borne children. Prior to her death all of her brothers had died. Each brother was survived by children. The executor of Emma's will made a claim that under the terms of the deed she was an owner in fee of a one-fourth interest in the 400-acre parcel which passed as part of her residuary estate to a friend and certain religious and charitable organizations. Certain descendants of William Wallbaum's sons maintained that upon Emma's death without issue, her estate in the land terminated and no interest passed under her will.
In construing the deed the court applied the general rule that heirs are to be determined upon the death of the testator unless the intention to refer to those who will be heirs at a period subsequent to the ancestor's death is plainly manifested. Finding no language in the will requiring or implying that an heir survive the life tenant, the court held that Emma had a one-fourth interest in the property and that interest passed under her will. From the order of partition this appeal is taken.
Defendants contend that in construing the deed the trial court applied the Rule in Shelley's Case and/or the Doctrine of Worthier Title in error. Defendants also argue that under the deed the grantor intended to create an alternative contingent remainder to take effect upon the failure of the prior contingent remainder which vested in a class consisting of the grantor's lineal descendants who actually survived the death of the life tenant. Because Emma necessarily could not survive herself, defendants claim the trial court erred in determining she had an interest in the property subsequent to her death.
• 1 The first two issues may be dealt with summarily. We note, at the outset, that the trial court made no reference to either the Rule in Shelley's Case or the Doctrine of Worthier Title in reaching its conclusion. The absence of any apparent reliance on either the Rule or the Doctrine would seem appropriate and consistent with the court's ruling, since we believe neither applies.
The Rule in Shelley's Case may be described briefly as follows:
"If a life estate in land is conveyed or devised to A, and by the same conveyance or devise, a remainder in the same land is limited, mediately or immediately, to the heirs of A, or the heirs of A's body, and the life estate and remainder are of the same quality, then A has a remainder in fee simply or in fee tail." ...