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05/18/88 Warren-Boynton State Bank, v. William Duke Wallbaum Et

May 18, 1988

MAE WALLBAUM, DECEASED, ET AL., APPELLANTS

v.

WILLIAM DUKE WALLBAUM ET AL., APPELLEES



SUPREME COURT OF ILLINOIS

WARREN-BOYNTON STATE BANK, Executor under the Will of E.

528 N.E.2d 640, 123 Ill. 2d 429, 123 Ill. Dec. 936 1988.IL.765

Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Sangamon County, the Hon. Simon L. Friedman, Judge, presiding.

APPELLATE Judges:

JUSTICE CLARK delivered the opinion of the court. JUSTICE MILLER took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CLARK

The following issues are presented for review in what originated at the trial court level as a partition action requiring construction of language in a 1903 deed: (1) whether alternate contingent remainders created in the 1903 deed are subject to an implied condition of survival to the date of distribution, that is, the time of the death of the life tenant, or whether the remaindermen are instead to be determined at the death of the grantor; (2) whether the Doctrine of Worthier Title is applicable to the deed in question; and (3) whether the Rule in Shelley's Case is applicable to the deed.

The trial court granted the plaintiffs' (appellants here) motion for summary judgment and motion to strike counterclaim and denied defendants' motion to dismiss. An order for partition was entered setting forth the interests of the parties. From this order certain defendants appealed. The appellate court reversed. (143 Ill. App. 3d 628.) We granted the plaintiffs' petition for leave to appeal pursuant to Rule 315. 107 Ill. 2d R. 315(a).

Appellants are the executor of the estate of Emma Mae Wallbaum, the daughter of the grantor of the deed in question, and the executor of the estate of Elaine B. Stillwell, a beneficiary under the will of Emma Mae Wallbaum. Appellees are certain descendants of William Wallbaum's three sons.

In 1903 William Wallbaum executed a deed by which he conveyed 400 acres of property in Sangamon County to his daughter Emma Mae by creating a life estate. Emma Mae's life estate would become possessory at the termination of the life estate which he reserved for himself. The exact language of the deed is as follows:

"The Grantor, William Wallbaum (widower) of the County of Sangamon and State of Illinois for and in consideration of One Dollar and other good and valuable considerations in hand paid, conveys and warrants to Emma May Wallbaum of the County of Sangamon and State of Illinois. A life estate in the following described real estate, to-wit: [legal description omitted.]

Hereby releasing and waiving all rights under and by virtue of the Homestead Exemptions Laws of this State. The said William Wallbaum hereby reserves a life estate in the above described land to-wit: He shall have the right to the use and occupancy of said land and to all the rents, issues and profits thereof during his natural life. And upon the death to said Emma May 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 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."

At the time of the transfer William was 65 years old and Emma Mae was 5. Her mother, William's second wife, had died the previous year. Emma Mae had two half-brothers who were in their thirties, children of William's first marriage. Several months after executing the deed here in question, William married a third time. He had a fourth child, a son, during this marriage. William died, however, in 1905 before his youngest son was six months old.

William Wallbaum's will devised all of his property to his four children and to Martha, his third wife. The will contained no residuary clause and no mention was made of the 400 acres involved here. Over his life time William had accumulated nearly 2,000 acres of farmland in and around Sangamon County. As he got older he gradually transferred some of the acreage to each of his two older sons. While he transferred some of the acreage absolutely in fee, he transferred other acreage with a retained life estate. All of the property transferred to the two sons was, however, in fee at the termination of the reserved life estate. Through his will he left certain acreage to his youngest son in a life estate ...


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