Appeal from the Circuit Court for the 9th Judicial Circuit, McDonough County, Illinois No. 98--CH--12 Honorable Patricia A. Walton Judge, Presiding
The opinion of the court was delivered by: Justice Breslin
Plaintiff Wallace Westerdale sought to partition his life estate from those interests held by his sisters, defendants Sarah Grace Tolliver and Ruth Carolyn Grossman (collectively, the sisters). The trial court agreed with Ruth's contention that the contingent nature of the remainder interest in Wallace's life estate prevented the partitioning of the land and granted her motion to dismiss. We reverse and hold that a tenant in common, as the holder of a life estate, has an absolute right to force a partition between himself and his co-tenants even when the petitioner's remainder in his life estate is contingent.
Loretta Westerdale died testate in 1978. Loretta's will divided her real estate into three shares for each of her three children, Wallace, Sarah and Ruth. The sisters each received a one-third share of their mother's real estate in fee. Their brother, Wallace, received a life estate in the remaining one-third. A contingent remainder in Wallace's one-third interest was given to any surviving children of Wallace except Victoria Westerdale. Victoria was Wallace's only child at the time this action was filed. It was conceded by the parties that Wallace could have more children before his death.
Should Wallace have no children other than Victoria, the will provides that the remainder of his life estate is to go to his sisters if they survive him and, if not, to the estates of Wallace, Ruth and Sarah.
In 1998, Wallace filed a complaint for partition. The complaint named the sisters and the legal representative of their mother's estate as defendants, along with other unknown owners and parties, due to the contingent nature of the remainder. Ruth filed a motion to dismiss claiming that because Wallace could still have children, partition could not be accomplished as it would be impossible for a court to determine the share that each child of Wallace would take. The trial court agreed, finding that Wallace lacked standing to file a partition action. Wallace filed a motion to reconsider, and the court denied the motion. Wallace appeals.
The sole issue on appeal is whether the trial court erred when it held that Wallace, as a life tenant, was barred from pursuing a partition action because the remainder interest in his life estate is contingent.
A motion to dismiss based upon a lack of standing is generally treated as an affirmative defense under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1998)) and is reviewed de novo. Department of Public Aid ex rel. Marshall v. Ringo, 303 Ill. App. 3d 250, 706 N.E.2d 1047 (1999). We will treat it as such.
On appeal, Wallace argues that a tenant in common has a right to partition by statute. Section 17-101 of the Code of Civil Procedure (Code) provides that "[w]hen lands, tenements or hereditaments are held in joint tenancy or tenancy in common *** any one or more of the persons interested therein may compel a partition thereof." 735 ILCS 5/17-101 (West 1998). While the creation of a joint tenancy requires the four unities of time, title, interest and possession, a tenancy in common needs only the unity of possession to exist, in that each co-tenant has an equal right of possession and enjoyment with respect to the entire property. R. Cunningham, W. Stoebuck & D. Whitman, The Law of Property § 5.2, at 188 (2d ed. 1984); Dunn v. Patton, 307 Ill. App. 3d 375, 718 N.E.2d 264 (1999).
Courts have interpreted section 17-101 of the Code to mean that a tenant in common has an absolute right to partition. In re Marriage of Clearman, 85 Ill. App. 3d 584, 407 N.E.2d 189 (1980). The right to partition is imperative and completely binding upon courts of equity when a case is fairly brought within the law authorizing such proceeding. Peck v. Peck, 16 Ill. 2d 268, 157 N.E.2d 249 (1959). Moreover, the motive for partition is immaterial and the absolute right to partition yields to no consideration of hardship, inconvenience, or difficulty. Heldt v. Heldt, 29 Ill. 2d 61, 193 N.E.2d 7 (1963).
In this case, Wallace and his sisters have an equal right to possession of the land though not an equal interest in the land. Accordingly, they are tenants in common and each tenant has an absolute right to partition the land so long as the partition action will not circumvent established principles of law or public policy. Heldt, 29 Ill. 2d at 63, 193 N.E.2d at 9. We find no evidence in the record, and his sisters do not contend, that Wallace is using the partition action to circumvent the law or public policy of this state.
The trial court relied upon Whittaker v. Porter, 321 Ill. 368, 151 N.E. 905 (1926), for the proposition that no partition may be had when a life estate exists and the class of remaindermen is not closed. Specifically, the court seized upon the fact that the Whittaker court denied partition because it could not fix the share to which each co- owner would be entitled.
It is true that the Whittaker court determined that when the remainder of a life estate is contingent in quantity until the death of the life tenant because of the possibility of the birth of other children, the remainder of the estate cannot be partitioned. This is correct because, as the trial court in this case noted, the number of shares in ...