THE

NORTHEASTERN REPORTER

VOLUME 104

(261 Ill. 424)

FORBES et al. v. FORBES et al (Supreme Court of Illinois. Dec. 17, 1913. Rehearing Denied Feb. 12, 1914.)

and plaintiffs appeal. Reversed and remanded.

H. M. Steely and H. M. Steely, Jr., both of Danville, for appellants. Robert F. Pettibone, of Chicago, for appellee Mary E. Goodwin. O. A. McFarland and A. P. McFarland, both of Danville, for appellees Julia Claypool and Chester W. Forbes. James A. Meeks, of Danville, guardian ad litem.

1. WILLS (8 608*)-CONSTRUCTION-RULE IN SHELLEY'S CASE. Where a will devised land to testator's daughter in fee, subject only to a condition that, if she died without issue, it should pass to other designated beneficiaries, it was not a devise of a freehold with a limitation over in remainder to the heirs of the devisee, and hence the rule in Shelley's Case did not apply. [Ed. Note.-For other cases, see Wills, Cent on January 9, 1895, leaving a last will and Dig. 8 1372-1378; Dec. Dig. § 608.*] 2. WILLS (8 616*)-ESTATE DEVISED-POWER OF SALE.

A provision in a will that the devisee should have the right to sell and convey the property, or any part thereof, in fee, did not enlarge the estate devised to her.

[Ed. Note. For other cases, see Wills, Cent. Dig. 88 1418-1430; Dec. Dig. § 616.*]

3. WILLS (8616*)-ESTATE CREATED-POWER OF SALE-LIMITATION.

A power of sale added to a life estate does not defeat the limitation over in the will, though nothing may be left at the termination of the original estate.

[Ed. Note. For other cases, see Wills, Cent. Dig. 88 1418-1430; Dec. Dig. § 616.*] 4. WILLS (8 603*) - CONSTRUCTION ESTATE DEVISED.

Testator devised to each of his two daugh- | ters certain land in fee to have and to hold to each, their heirs and assigns, subject to a condition that, in case either of them died without issue surviving, then the lands devised to her should vest in testator's widow and the survivor of the two daughters, in fee in equal shares, and, in case both daughters should die leaving no issue surviving, then the lands devised should vest in the widow in fee. The will also provided that nothing therein contained should deprive the widow and the daughters, or either of them, of the right to sell and convey the lands devised to them respectively, or any part thereof, in fee. Held, that the devise to the daughters was not of an estate in fee simple, but a fee subject to a condition, and would be determinable on the happening of the condition, and become a fee absolute only when the condition became impossible.

CARTWRIGHT, J. Thomas C. Forbes died

testament dated June 22, 1891, to which a codicil dated March 16, 1892, was annexed, and the will, including the codicil, was admitted to probate. The controversy in this case relates to the estate taken by his daughter Cordelia K. Forbes under the second and tenth paragraphs of the will. The construction of the will contended for by the appellees was adopted by the chancellor in the circuit court of Vermilion county.

Thomas C. Forbes was twice married and had three children of the first marriage and two of the second. When the will was made

the two sons of the first marriage had died leaving surviving children, and one daughter of that marriage was living and survived her father. The two children of the second marriage were Cordella K. Forbes and Caroline C. Forbes, who were minors, and they and the widow survived the testator. The testator by his will disposed of a large estate, including many tracts of land, and by the first paragraph he gave to his wife several tracts in fee simple and personal property and $4,000 in money. The second paragraph was as follows: "Second. I hereby will and devise unto my daughter Cordelia K. Forbes, in fee simple, the following described tracts or parcels of land: (Describing them.) The said Cordelia K. Forbes to have and to hold the said lands above described unto her, her heirs and assigns, in fee simple, subject only to the condition hereinafter set forth." There was also a bequest of $2,000 unconditionally. The third paragraph contained the following: "I hereby will and devise unto my Action by Caroline C. Forbes and others daughter Caroline C. Forbes, in fee simple, against Chester W. Forbes and others for the following described lands: (Describing the construction of the will of Thomas C. them.) The said Caroline C. Forbes to have Forbes, deceased. Judgment for defendants, and to hold all the above described lands unto

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 1351-1359; Dec. Dig. § 603.*]

Appeal from Circuit Court, Vermilion County; E. R. E. Kimbrough, Judge.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 104 N.E.-1

The intention of the testator is not in doubt. He had been twice married and had two sets of children, and, after providing for his wife, the next two paragraphs of the will

her and her heirs and assigns forever, in fee | simple, because it was to her and her heirs simple, subject only to the conditions herein- and assigns. The rule does not apply, beafter written." There was also a bequest in cause there was no estate of freehold devised this paragraph of $2,000, and a devise of two to Cordelia K. Forbes with a limitation by acres of land in fee simple without the men- way of remainder to her heirs. Johnson v. tion of any condition. The fourth, fifth, Buck, 220 Ill. 226, 77 N. E. 163. sixth, and seventh paragraphs contained devises or bequests to the testator's living daughter, Sarah Scott Davison, and his grandchildren, children of the deceased sons, without any condition. The eighth para-devised real estate to their two minor chilgraph directed payments of legacies or bequests, and the ninth directed that the rents and profits of the lands devised to the testator's wife and the two children, Cordelia K. Forbes and Caroline C. Forbes, should be paid to his wife for the support of herself and the two daughters until the daughters should reach their lawful majority or marry, when they were to become entitled to possession of the lands devised to them, severally. | The tenth paragraph was as follows: "Tenth. In case of the death of either of my said daughters, Cordelia K. Forbes or Caroline C. Forbes, without issue of the body surviving, then the lands hereinbefore devised to such deceased daughter shall descend to and vest in my said wife and the survivor of said two daughters in fee simple, in equal shares; and in case both of said daughters should die leaving no issue of their bodies surviving them, then the lands hereinbefore devised to them, respectively, shall descend and vest in my said wife, Mary E. Forbes, in fee simple. Nothing herein contained shall be taken or construed as depriving my said wife, Mary E. Forbes, and my said daughters, Cordelia K. Forbes and Caroline C. Forbes, or either of them, of the right and power to sell and convey the lands devised to them, respectively, or any part thereof, in fee simple."

Cordelia K. Forbes died intestate on May 11, 1911, never having been married and leaving no child or descendant. The appellants, Caroline C. Forbes and Mary E. English, the widow of the testator, filed their bill in this case in the circuit court of Vermilion county for partition, alleging that Cordelia K. Forbes died seised of certain lands acquired by purchase, which descended to all her heirs, including the appellees, and that she took under the devise other lands, subject to the condition that, if she died without issue of her body surviving, the lands should descend to and vest in fee simple in the appellants, her sister and mother. Answers were filed, claiming that Cordelia K. Forbes took title in fee simple to the lands devised to her and that they had descended to her heirs at law. The evidence was taken by a special master and reported. The chancellor construed the will as giving title in fee simple to Cordelia K. Forbes and the condition as repugnant to the estate granted and the attempted limitation over as void.

[1] In support of the decree it is contended that the rule in Shelley's Case applies and

dren, together with a bequest of money to each. In the devise to Cordelia K. Forbes he used the language, "In fee simple, subject only to the condition hereinafter set forth;" and in the devise to Caroline C. Forbes the language was, "In fee simple, subject only to the conditions hereinafter written." The testator then provided for the issue of the first marriage by devises and bequests to his living daughter and the children of the sons who had died. The tenth paragraph contained the condition mentioned in and annexed to the devises to the two daughters of the second marriage, and it is immaterial that he separated the condition from the devises in a different paragraph. The condition is to have the same effect as if written in the paragraphs making the devises. That condition was that, in the case of the death of either devisee without surviving issue, the lands devised to her should descend to and vest in the survivor and the widow in fee simple, in equal shares, and, in case of the death of both without surviving issue, the lands should go to the widow in fee simple. Here was plainly manifested the intention to keep the lands devised to the children of the second marriage separate from the property given to the children and grandchildren, issue of the first marriage. Thus far the devises with limitations over were unquestionably valid, and the controversy is over the question whether the intention of the testator can be carried out or is to be frustrated and defeated by some positive rule of law. We are to determine in this case whether the devise to Cordelia K. Forbes, subject to the terms of the condition annexed to and incorporated in it, was in law subject to no condition because of a power given to her to sell and convey a fee.

[2] This depends upon the construction to be given to the devise, together with the provision that nothing contained in the will should be taken or construed as depriving the devisee of the right and power to sell and convey the lands in fee simple. The language of the devise did not import an estate in fee simple, which is a pure inheritance, clear of any qualifications or conditions, and must be given or granted generally, absolutely and simply. 2 Blackstone's Com. 104; 4 Kent's Com. 5. If Cordelia K. Forbes did not have an estate in fee simple, such an estate did not descend to her heirs at law. The devise not being of a fee-simple estate, but of a fee subject to a condition, it could