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Dempsey v. Dempsey

August 18, 2003

JENNIFER CORRINNE DEMPSEY AND KEVIN JOHN DEMPSEY, PLAINTIFFS-COUNTER-DEFENDANTS-APPELLEES,
v.
IAN RANN DEMPSEY, DEFENDANT-COUNTER-PLAINTIFF-APPELLANT.



Appeal from the Circuit Court of the 10th Judicial Circuit Tazewell County, Illinois No. 00-MR-89 Honorable Richard Grawey, Judge, Presiding

The opinion of the court was delivered by: Justice Lytton

UNPUBLISHED

Plaintiffs, Jennifer and Kevin Dempsey, and defendant, Ian Dempsey, are the only surviving descendants of David Dempsey (David). Shortly after David's death, both parties petitioned the circuit court to determine their interests in certain real property devised in his father Ralph Dempsey's will. The circuit court found that the conveyance created a contingent remainder in David's heirs, which vested upon his death. Defendant appeals, arguing that the remainder vested upon Ralph Dempsey's death, and that he is entitled to a larger share of the estate. We affirm.

FACTS

Ralph Dempsey died in 1956, leaving a will dated October 19, 1955. Article Fifth of the will provided:

I give and devise all the real estate owned by me in Fulton County, Illinois, (approximately 240 acres) as follows:

(a) A life estate to my wife, Gertrude L. Dempsey.

(b) After the death of my said wife, Gertrude L. Dempsey, a joint life estate to my son, David Dempsey, and his wife, Evangeline Dempsey, and for the lifetime of the survivor thereof.

(c) The remainder interest in said real estate, I give and devise to the heirs of the body of my son, David Dempsey, share and share alike, and in fee simple.

When Ralph Dempsey died, David had three children: Ian, Karen, and David Kevin. Ralph's wife Gertrude died in 1961, leaving David and Evangeline Dempsey with a life estate in the property. David Kevin died in 1981 and was survived by plaintiffs Kevin and Jennifer Dempsey, his two adopted children. Evangeline Dempsey died in 1984. Defendant's sister Karen died in 1998 and devised her estate to Ian. David died in 1999, prompting this dispute over the will. Plaintiffs and defendant are the only surviving interested parties.

Plaintiffs filed a complaint for "declaration of rights" under Ralph's will. Defendant filed a motion for summary judgment. The court denied Ian's motion and ordered the remainder interest distributed per stirpes to plaintiffs and defendant, with defendant to take a one-half interest and plaintiffs to take an undivided one-half interest.

ANALYSIS

The trial court determined the parties' rights as a matter of law, and we review its decision de novo. Arangold Corp. v. Zehnder, 204 Ill. 2d 142 (2003).

Defendant argues that Ralph Dempsey's will created a fee tail estate in David. Defendant notes that section 6 of the Illinois Conveyances Act converts the fee tail into a life estate in David, that, upon Ralph's death, vested in David's living children. See 765 ILCS 5/6 (West 2000). Thus, defendant would be entitled to his one-third share and the one-third ...


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