force,39 it is valid. If that rule is not in force in this state, the future interest is executory and so void for remoteness.40 § 206. Whether or not the first taker does take an estate tail: Under the English cases it is clearly the law that if real estate be limited to A for life with a remainder to B upon an indefinite failure of issue in A, A takes by implication an estate tail.41 A in the same manner takes, under the English cases, an estate tail, if real estate be limited to him in fee, with a gift to B upon an indefinite failure of issue on the part of A.42 Do these rules of construction obtain in Illinois today? In four cases,43 in this state, there was an opportunity for the discussion of the application of the first of these rules. In each, there was substantially a gift to A for life, with a contingent remainder in fee to A's issue, and, if A died without issue then a remainder to B. In not one instance did the court refer in the most remote way to the possibility of A's taking an estate tail by implication. In two cases, at least, our supreme court recognized the existence, under the English cases, of the rule that a gift on an indefinite failure of issue in the first taker would cut down his expressed fee simple to an estate tail. In no case, however, has the application of that rule in this state been directly passed upon. In Strain v. Sweeney 44 the court said that if the gift on the first taker's dying "without issue of his body" meant an indefinite failure of issue the gift over was void for remoteness. Real estate was here involved, yet the court did not even consider the possibility of the first taker's having an estate tail by the rule of construction of the English cases.45 It might be urged that since estates tail are not now, and 39 Ante, §§ 81-92a; post, §§ 270273. 40 If there be the gift of an absolute interest to the first taker's issue and they, on birth, take a vested interest, then the gift over, on an indefinite failure of issue may, if created by deed, be subject to the further objection that it is void by the doctrine of Palmer v. Cook, 159 Ill. 300; ante, § 139. 41 Theobald on Wills, (2nd ed.) 563. 42 Theobald on Wills, (2nd ed.) 324. 43 Healy v. Eastlake, 152 Ill. 424; Kellett v. Shepard, 139 Ill. 433; Seymour v. Bowles, 172 Ill. 521; Johnson v. Askey, 190 Ill. 58. 44 163 Ill. 603, 606. 45 This is the more significant because if the first taker had the never have been part of our system of conveyancing,46 it would be absurd to raise one by implication or to cut down a fee to a fee tail by the application of the above rules of construction. Such reasoning is relevant to support the rule that "dying without issue" means a definite failure of issue in the first generation.47 Why, then, it will be asked, is it not equally relevant to prevent the application of rules of construction which turn the first taker's interest into an estate tail? Estates tail, however, are not abolished by our statute. They still exist as an estate upon which the statute takes effect. The statute only operates upon what would, apart from the statute, be an actual existing estate tail.48 The act in fact provides that wherever at common law (meaning under the statute de donis) an estate tail would, in fact, be created, a certain result shall follow. It is the creation of an estate tail which causes the act to operate. It is the creation of the estate tail which represents the intent and act of the donor. The first step to the operation of the statute is to find an intent properly expressed to create an estate tail. No reason is perceived why the rules of construction of the English cases, founded upon the donor's intent, which raised an estate tail, should not be applicable here to indicate the same expressed intent. Then, too, the Illinois Act on Entails was passed in 1827,49 when the rules of construction of the English cases, by which estates tail were created, had become established and were known. That statute in referring to cases where, by the common law, any person or persons might hereafter become seized, in fee tail," may well be regarded, for the purposes of certainty, as referring to any form of limitation which, under the English cases, at that time amounted to an estate tail. It will doubtless be urged that it would be senseless to turn a life estate into an estate tail, because our statute on entails 50 would turn the estate tail back into the same limita statutory estates raised in place of an estate tail then the ultimate gift, if it be the rule in this state that contingent remainders are destructible (ante, §§ 81-92 a), would not be void for remoteness. (Post, §§ 271, 272). 46 Ante, §§ 114 et seq, also § 202. tions as were originally created. This, however, will not carry very far. It only avoids the application of the rule of construction in the one case where a life estate is limited to A with a fee to his issue, and a gift over to B in fee on an indefinite failure of issue in A;-and, not even then, unless it be that the issue of A take, under the Statute on Entails, exactly the same interest that they take by the express limitations.51 The argument that it is absurd to turn a fee simple into an estate tail when the ultimate result is to cause the fee to be turned into a life estate, is not well taken, since the same sort of reasoning would prevent any formula of words ever being construed to create an estate tail. Furthermore, the creation of the life estate is the work of the statute which operates to defeat the expressed will of the settlor or testator. Observe, finally, that the net result of not applying the rule of construction which cuts down the fee of the first taker, A, to an estate tail with a vested remainder to B, who is to take upon an indefinite failure of issue, is that the future interest is wholly void for remoteness. On the other hand, if the rule of construction be applied, there is a chance of saving the future estate. If A's interest is reduced to a life estate, and the contingent future interest in B is subject to the rule which causes it to fail entirely unless it take effect by way of succession upon the termination of the preceding interest,52 then it will not be void from the beginning for remoteness.53 Should our supreme court decide to recognize the destructibility of contingent remainders it would seem that it ought to incline toward holding that the rule of construction which turns a fee into a fee tail shall be recognized. § 207. Ewing v. Barnes:54 An attempt has been made to explain Ewing v. Barnes upon the ground that the gift over, which was held void, was upon an indefinite failure of issue in the first taker and so too remote.55 This may be done if you treat the gift over as you would a similar gift over of 51 For the exact interest which the statute gives the issue of it, see ante, §§ 116-120. 52 Ante, §§ 81-92a. 53 Post, §§ 270-273. 54 156 Ill. 61, ante, § 166. 55 Article of Mr. Lessing Rosenthal, in 28 Chicago Legal News, personal property, denying the application of the rule of construction of the English cases which would turn the first taker's interest into an estate tail.56 On the other hand, if you turn the first taker's interest into an estate tail then, by the statute, the limitations would read: A term for years in trustees till A reached 25, and subject thereto a legal estate to A for life, contingent remainder in fee to designated heirs of A, and an ultimate interest upon an indefinite failure of issue to B. If, then, the destructibility of contingent remainders is recognized,58 B's interest, though liable to be defeated or fail, is not void from the beginning for remoteness. 59 257, (April 4, 1896). If the same attempt had been made to explain Burton v. Gagnon, 180 Ill. 345, ante, §§ 175, 178, the remarks of the text would apply. bold on Wills, (2nd ed.) p. 527528. (2) Gift to issue of first taker raised by implication from gift over if life tenant leaves no issue: 56 This seems to have been the Orr. v. Yates, 209 Ill. 222; Pinkassumption of the court. 57 Ante, § 114. 58 Ante, §§ 81-92a. 59 Post, §§ 271, 272. NOTE (1) On meaning of "unmarried" in gifts over upon the first taken dying unmarried: Frail v. Carstairs, 187 Ill. 310; Theo ney v. Weaver, 216 Ill. 185; Theobald on Wills, (2nd ed.) pp. 568, 569. (3) When a gift over will be implied to be on condition that A dies "without such heirs": Young v.Harkleroad, 166 Ill. 318. § 208. CHAPTER IX. VESTING OF LEGACIES.1 Distinction between bequests of personalty and legacies charged upon land: The rules applicable to the vesting of bequests of personalty are to be distinguished from those governing the vesting of charges upon land. It should be observed, however, that where realty is devised upon trust to be converted and legacies paid out of the proceeds, or the proceeds divided, the legacies are not payable out of, or charged upon, realty. The directions to sell amount to an equitable conversion and the legacy becomes payable out of personalty.2 The rules applicable to the vesting of legacies payable out of personalty, therefore, apply. Our supreme court has acted in two cases, upon the assumption that this was the law, without, however, particularly noticing the point.* § 209. Vesting of bequests of personalty-Where there is an express direction as to the period of vesting: When a testator expressly declares that a legacy shall vest at a certain period he must ordinarily be taken to mean that it shall vest in interest at that time. This has been held to include the expressed intention that the gift shall be contingent upon the legatees surviving that period.5 Chapman v. Cheney, however, is a reminder that the word "vest" is flexible in its meaning and, that, upon the whole context of the will, it may appear to refer to vesting 1 The following rules may to some extent be applicable to real estate. See Eldred v. Meek, 183 Ill. 26, 37. 2 Lash v. Lash, 209 Ill. 595, 604; Ebey v. Adams, 135 Ill. 80, 85; Dorsey v. Dodson, 104 Ill. App. 589, 592. 3 Theobald on Wills, (2nd ed.) 407; In re Hart's Trusts, 3 DeG. & J., 195, (5 Gray's Cases on Prop., 290). 4 Scofield v. Olcott, 120 Ill. 362; Hawkins v. Bohling, 168 Ill. 214. 5 Theobald on Wills, (2nd ed.) pp. 407-408. See Spengler v. Kuhn, 212 Ill. 186, 194, (207 Ill. 166). 6 191 Ill. 574. |