Scholfield stated, still more emphatically, that the rule was an absolute one, and that the emphasized expression of an intent on the part of the testator to give the ancestor only a life estate, would not defeat its operation. He expressly repudiated, on behalf of the whole court, the language of Mr. Justice Scott in Belslay v. Engel. Finally, Fowler v. Black 48 may almost be regarded as setting the point at rest. The deed in that case ran to A for life "and upon his death then unto his heirs and their assigns forever, it being the true intent and meaning of this indenture to convey to said party of the second part [A]to have and to hold only during his natural life, and upon the death of said party of the second part, said premises to be held in fee simple by his heirs and assigns forever," The court declared the rule in Shelley's case to be "a rule of property which overrides even the express intent of the testator or grantor that it shall not operate," and consequently held the rule applicable to the limitations quoted.49 § 134. Peculiar application of the rule: Our supreme court has not always kept clearly in mind the proper statement of the rule and its application and operation. This appears from its attempt to invoke the rule for the purpose of giving A a fee simple where there is a conveyance to "A and his heirs.''50 Of course, in such a case, A has a fee. simple because of the use of the words of limitation most appropriate for conveying that estate. The rule in Shelley's case can have nothing to do with the result. For one thing, there simply is no remainder upon which the rule can operate.51 In several cases 52 of this sort, resort to the rule in Shelley's case may be explained upon the ground that the contention was being put forward that A had a life estate. To this 48 136 Ill. 363. 49 All the dicta of our Supreme Court since Carpenter v. Van Olinder, 127 Ill. 42, have repeated that the rule is an absolute rule of law overriding the express intention of the testator or grantor: Hageman v. Hageman, 129 Ill. 164; Ewing v. Barnes, 156 Ill. 61; Silva v. Hopkinson, 158 Ill. 386; Wolfer v. Hemmer, 144 Ill. 554, 559; Strain 51 Ante, § 129. 52 Baker v. Scott, 62 Ill. 86; Lehndorf v. Cope, 122 Ill. 317; Wolfer v. Hemmer, 144 Ill. 554, 559. the court replied, in substance, that, even so, the rule in Shelley's case will give A the fee simple. In at least three cases,53 however, the language of the court in applying the rule in Shelley's case to give A the fee simple, where the conveyance ran to A and his heirs, is quite inexplicable.54 § 135. Application of the rule in cases of limitations of personalty: It has been conceded by our supreme court that the rule in Shelley's case does not, in strictness, apply to limitations of personal property.55 The court has, however, clearly recognized the rule that a gift of personal property to A for life, and then to his executors or administrators, or to his personal representatives, gives to A the absolute property at once.5 56 This, clearly enough, rests upon the ground that it is the expressed intent of the testator or settlor that A should have the absolute interest. That intent is only expressed in a somewhat "roundabout way."57 Now, if the rule in Shelley's case were a rule of construction which declared that upon the limitation of real estate to A for life, with remainder to A's heirs, a fee simple was expressed to be limited to A, then it might fairly be said that the rule regarding personal property was analogous to the rule in Shelley's case. But it must be perfectly clear from the foregoing exposition of the rule in Shelley's case 58 that there is absolutely no point which can serve as a connection between it and the above rule of construction regarding limitations of personalty. The suggestion of our supreme court,59 repeating what was said in Williams on Personal Property,60 and perhaps repeated by judges from time to time,61 that the rule in Shelley's case applies by way of analogy to limitations of personalty should receive no encouragement. 53 Ewing v. Banes, 156 Ill. 61; Silva v. Hopkinson, 158 Ill. 386; Davis v. Sturgeon, 198 Ill. 520. 54 See the comments of Lessing Rosenthal, Esq., in 28 Chicago Legal News, p. 258. 55 Glover v. Condell, 163 Ill. 566, 587. 56 Glover v. Condell, 163 Ill. 566, 587. 57 Alger v. Parrott, L. R. 3 Eq. Cas. 328. 58 Ante, §§ 127-133. 59 Glover v. Condell, 163 Ill. 566. 587. 60 3d Am. ed. side page 244. 61 Avern v. Lloyd, L. R. 5 Eq. Cas. 383, 388. CHAPTER IV. FUTURE USES. § 136. Scope of the chapter: When the destructibility of contingent remainders was dealt with,1 full consideration was given to the character and validity of contingent future interests which, if the actual intent of the settlor be carried out, may take effect by way of succession or by way of interruption, according as the contingency, upon which they are limited, happens before or at the time of, or after the termination of a preceding estate of freehold. The present chapter, therefore, will be devoted to considering how far future interests in land, taking effect, if at all, only by way of interruption, i. e., springing and shifting future interests,2 are valid in Illinois when attempted to be created by a conveyance inter vivos. 3 So far as equitable springing. and shifting future interests are concerned, their general validity, apart from the question of remoteness, and the rules restricting the creation of gifts over by way of forfeiture on alienation, may be entirely relied upon. In no decided case, however, in the supreme court of this state, has the validity of legal future springing interests by deed, as such, been unequivocally sustained. As to the ordinary legal shifting future interest by deed, there is much in the reports of the court to lead the careful conveyancer to regard any attempt to create one, by an instrument operating inter vivos, with suspicion. Nevertheless, the writer will endeavour to maintain the validity of both. 1 Ante, §§ 81-92a. 2 For more detailed description of these future interests, see ante, § 67. 3 Gray's Rule against Perpetuities, § 69. In Wilson v. Galt, 18 Ill. 431, a springing trust by deed was fully sustained. 4 Post, §§ 168-176. 5 Post, §§ 157-159. In Conkling v. City of Springfield, 39 Ill. 98, and Thomas v. Eckard, 88 Ill. 593, PART 1. SHIFTING INTERESTS BY DEED ARE VALID IN ILLINOIS AS A GENERAL RULE. § 137. I. Introduction'-Interest in the question: If an intelligent layman desiring to make a settlement inter vivos were told that his deed limiting a legal estate in fee to his daughter, with a gift over to B if the daughter died without issue her surviving, would be absolutely void to pass anything to B, he would, doubtless, be surprised. If it were explained to him that it was impossible by deed to create any shifting future interests in lands in this state perhaps he would be indignant. He might argue that the land was his and, provided he complied with the legal formalities for transfer, he ought to be able to do with it what he pleased. No doubt he would admit the good sense in the rule which made invalid shifting interests, whether created by deed or will, violating the Rule against Perpetuities. He might concede the propriety of the rule that all gifts over in deeds or wills by way of forfeiture on an attempted alienation by deed or will should be, as they clearly are, invalid." He would object, but he would be obliged to submit, to the rule that a gift over on the intestacy of the first taker, whether created by deed or will, is void.10 But what reason could possibly be given him for the rule that all shifting interests by deed are void in this state? And how would you explain to him that he could do this thing by will 11 but not by deed? § 138. Origin of the question lies in the fact that the Illinois authorities are divided-Cases in support of the validity of shifting interests by deed: It seems pretty clearly settled here that a power, created by deed, to appoint a new 7 This introduction is constructed upon lines suggested by H. L. Prescott, Esq., in a leaflet entitled "Skeleton of Fundamental Form of Introduction for an Argument," used by him in his Course on Argumentation at the Northwestern University Law School in 1904- 8 Post, §§ 254 et seq. trustee is valid.12 The donee of the power may be the cestui que trust,13 or an utter stranger to the transaction, as the court of chancery of a judicial circuit.14 Furthermore, upon the appointment being made under the power the new trustee becomes ipso facto vested with the legal title to the trust premises, and no conveyance need be made to him by the former trustee,15 or the former trustee's heirs, if he be dead. Nor are the cases to this effect to be put upon any narrow ground that the power occurs in a trust deed by way of mortgage, for in Morrison v. Kelly 16 the trust was an active one for the benefit of the settlor's wife.17 The same object is, in the present day Cook County Trust Deed by way of mortgage, more often accomplished directly without the exercise of any power by this provision: "In case of the death, absence, inability or refusal to act, of said party of the second part, then [here insert name of successor in trust], of the said city of Chicago, shall be, and he is hereby appointed and made successor in trust to said party of the second part under this deed, with like powers and authority, and said premises shall thereupon become vested in said successor in trust, for the uses and purposes aforesaid." Here the clause is, so to say, self-acting, for at once 12 Morrison v. Kelly, 22 Ill. 610; Lake v. Brown, 116 Ill. 83; Craft . I. D. & W. Ry. Co., 166 Ill. 580; West v. Fitz, 109 Ill. 425, 442 (semble). 13 Lake v. Brown, 116 Ill. 83; Craft v. I. D. & W. Ry. Co., 166 580. 14 Morrison v. Kelly, 22 Ill. 610; See also Leman v. Sherman, 117 III. 657, 668. 15 Morrison v. Kelly, 22 Ill. 610; Craft v. I. D. & W. Ry. Co., 166 Ill. 580. In the latter case the court passed upon this point specifically: (saying at page 586) "We also think the position that no title to the property or power to execute the trusts vested in them as successors for want of a written conveyance to them, un tenable. By the terms of the deed the same title and power which were conferred upon the original trustees vested in their successors, when lawfully appointed." See also to the same effect: 2 Lewin on Trusts, 1st Am. from 8th Engl. ed. pp. 650-651; 2 Chance on Powers, 400 et seq. 16 22 Ill. 610. 17 Observe also the English practice of inserting such powers in settlements inter vivos where trustees have active duties. 2 Hayes's Conveyancing, pp. 71-72. For the law generally relating to power to appoint new trustees see Sugden on Powers 8th ed. pp. 883890; 2 Chance on Powers, pp. 393411; 2 Lewin on Trusts (1st Am. from 8th Engl. ed. pp. 645-673. |