{ "id": 3473195, "name": "JENNIFER CORRINNE DEMPSEY et al., Plaintiffs and Counterdefendants-Appellees, v. IAN RANN DEMPSEY, Defendant and Counterplaintiff-Appellant", "name_abbreviation": "Dempsey v. Dempsey", "decision_date": "2003-08-18", "docket_number": "No. 3-02-0816", "first_page": "969", "last_page": "975", "citations": [ { "type": "official", "cite": "342 Ill. App. 3d 969" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "237 Ill. App. 3d 579", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5164762 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-app-3d/237/0579-01" ] }, { "cite": "403 Ill. 302", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2620448 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/ill/403/0302-01" ] }, { "cite": "409 Ill. 343", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5311156 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/ill/409/0343-01" ] }, { "cite": "314 Ill. 220", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5131175 ], "year": 1924, "pin_cites": [ { "page": "225" } ], "opinion_index": 0, "case_paths": [ "/ill/314/0220-01" ] }, { "cite": "108 Ill. App. 3d 322", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3010259 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-app-3d/108/0322-01" ] }, { "cite": "249 Ill. 406", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5644932 ], "weight": 4, "year": 1911, "pin_cites": [ { "page": "413-14" }, { "page": "415", "parenthetical": "holding that when the devise is uncontrolled by statute and the remainder is conveyed to the heirs of a person's body, the remainder is contingent until that person's death, at which time heirs can be ascertained" } ], "opinion_index": 0, "case_paths": [ "/ill/249/0406-01" ] }, { "cite": "276 Ill. 594", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4853679 ], "year": 1917, "pin_cites": [ { "page": "596" } ], "opinion_index": 0, "case_paths": [ "/ill/276/0594-01" ] }, { "cite": "6 Ill. 2d 534", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2709372 ], "weight": 2, "year": 1955, "pin_cites": [ { "page": "544" }, { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/6/0534-01" ] }, { "cite": "285 Ill. 75", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4926592 ], "year": 1918, "opinion_index": 0, "case_paths": [ "/ill/285/0075-01" ] }, { "cite": "259 Ill. 36", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4729245 ], "weight": 2, "year": 1913, "pin_cites": [ { "page": "43" } ], "opinion_index": 0, "case_paths": [ "/ill/259/0036-01" ] }, { "cite": "329 Ill. 235", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5201921 ], "weight": 2, "year": 1928, "pin_cites": [ { "page": "240" }, { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/ill/329/0235-01" ] }, { "cite": "204 Ill. 2d 142", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 609692 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/ill-2d/204/0142-01" ] } ], "analysis": { "cardinality": 603, "char_count": 11859, "ocr_confidence": 0.731, "pagerank": { "raw": 4.2669379767208756e-08, "percentile": 0.269804726067041 }, "sha256": "5d192e974a2982d0daa57fa387c2f2ae9d3b0a45b0a22561be6b46f27e6b8573", "simhash": "1:49f02250703fa485", "word_count": 1994 }, "last_updated": "2023-07-14T17:14:05.196224+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "McDADE, EJ., and SCHMIDT, J., concur." ], "parties": [ "JENNIFER CORRINNE DEMPSEY et al., Plaintiffs and Counter-defendants-Appellees, v. IAN RANN DEMPSEY, Defendant and Counterplaintiff-Appellant." ], "opinions": [ { "text": "JUSTICE LYTTON\ndelivered the opinion of the court:\nPlaintiffs, Jennifer and Kevin Dempsey, and defendant, Ian Dempsey, are the only surviving descendants of David Dempsey (David). Shortly after David\u2019s death, both parties petitioned the circuit court to determine their interests in certain real property devised in his father Ralph Dempsey\u2019s will. The circuit court found that the conveyance created a contingent remainder in David\u2019s heirs, which vested upon his death. Defendant appeals, arguing that the remainder vested upon Ralph Dempsey\u2019s death and that he is entitled to a larger share of the estate. We affirm.\nFACTS\nRalph Dempsey died in 1956, leaving a will dated October 19, 1955. Article fifth of the will provided:\n\u201cI give and devise all the real estate owned by me in Fulton County, Illinois, (approximately 240 acres) as follows:\n(a) A life estate to my wife, Gertrude L. Dempsey.\n(b) After the death of my said wife, Gertrude L. Dempsey, a joint fife estate to my son, David Dempsey, and his wife, Evangeline Dempsey, and for the lifetime of the survivor thereof.\n(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.\u201d\nWhen Ralph Dempsey died, David had three children: Ian, Karen, and David Kevin. Ralph\u2019s 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\u2019s 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.\nPlaintiffs filed a complaint for \u201cdeclaration of rights\u201d under Ralph\u2019s will. Defendant filed a motion for summary judgment. The court denied Ian\u2019s 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.\nANALYSIS\nThe trial court determined the parties\u2019 rights as a matter of law, and we review its decision de novo. Arangold Corp. v. Zehnder, 204 Ill. 2d 142 (2003).\nDefendant argues that Ralph Dempsey\u2019s 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\u2019s death, vested in David\u2019s living children. See 765 ILCS 5/6 (West 2000). Thus, defendant would be entitled to his one-third share and the one-third share Karen conveyed to him upon her death, leaving plaintiffs with an undivided one-third share.\nPlaintiffs respond that section 6 of the Illinois Conveyances Act does not apply, that the remainder interests created by the will were contingent, and that they vested upon the death of the life tenant, David. Because Karen predeceased David, plaintiffs assert that she never had a vested remainder interest to convey to defendant and the trial court correctly divided the property. We agree.\nI. The Fee Tail Estate\nAt common law, a fee tail was an estate of inheritance that descended to the heirs of a donee\u2019s body, or to a class of those heirs, and through them to like heirs in a direct line. Nave v. Bailey, 329 Ill. 235, 240 (1928). The estate continued in a regular order and course of descent for as long as the heirs or class existed. Upon extinction of the specified issue, the estate terminated and reverted to the grantor. Nave, 329 Ill. at 240.\nTo better understand this dispute, it may be helpful to review a brief history of the fee tail. In medieval times, when land ownership was the key to acquiring and maintaining wealth, powerful families sought a vehicle to permanently keep the land in the family, which would allow the primogenitary heir to control it, but would also prevent him from alienating the land. Landowners could create such an estate by conveying land \u201cto A and the heirs of his body.\u201d J. Dukeminier & J. Krier, Property 205 (4th ed. 1998).\nThe courts interfered, however, and decided that if issue were born to A, A could take a fee simple, thereby cutting off his issue\u2019s inheritance rights in the land. C. Moynihan, Real Property 38 (1962). The estate became known as a fee simple conditional \u2014 conditional upon having issue. J. Dukeminier & J. Krier, Property 205 (4th ed. 1998).\nAfter being pressured by wealthy landowners, Parliament replaced the fee simple conditional with the fee tail. The fee tail caused land to descend to the grantee\u2019s heirs generation after generation, and only expired when the grantor, the grantee, and all of the grantee\u2019s descendants were dead. The statute then provided that land would then revert to the grantor\u2019s heirs, or to another grantee if specified in the original conveyance. The fee tail required use of familiar language: \u201cto [A], and the heirs of his body.\u201d J. Dukeminier & J. Krier, Property 205 (4th ed. 1998).\nProperty law in colonial America closely resembled English law, but revolutionaries such as Thomas Jefferson resented the fee tail as a symbol of the hereditary aristocracy perpetuated by the rule of primogeniture in England. J. Dukeminier & J. Krier, Property 207 (4th ed. 1998). Opposition to the fee tail grew in the decades following the American revolution. Throughout the nineteenth century, many states enacted legislation that abolished the fee tail estate. C. Moynihan, Real Property 41-43 (1962). The Illinois legislature abolished the fee tail in 1827 when it passed the Illinois Conveyances Act (now see 765 ILCS 5/1 et seq. (West 2000)). See Moore v. Reddel, 259 Ill. 36, 43 (1913).\nII. The Illinois Conveyances Act\nSection 6 of the Illinois Conveyances Act provides that when a grantee takes an ownership interest that would have been a fee tail at common law, the estate is statutorily converted into a life estate in the grantee, with the remainder in fee to the grantee\u2019s children. 765 ILCS 5/6 (West 2000). If the grantee has no children, the remainder is contingent until a child\u2019s birth. If the grantee already has children, the remainder is vested, subject to reopening for any after-born children. Doney v. Clipson, 285 Ill. 75 (1918).\nHere, we must determine whether Ralph Dempsey\u2019s will would have created a fee tail at common law. If so, section 6 of the Illinois Conveyances Act would apply, and the remainder would have vested upon the birth of David\u2019s children; in that case, Karen Dempsey\u2019s devise of her interest to defendant would have been a valid transfer of her one-third share. If no fee tail is created, then section 6 does not apply and common law controls the time at which the remainder vested.\nRalph Dempsey\u2019s will devised his estate \u201cto the heirs of the body of my son *** share and share alike, and in fee simple\u201d (emphasis added). The addition of these last three words destroys the possibility of creating a fee tail. Peters v. Gebhardt, 6 Ill. 2d 534, 544 (1955); Benson v. Tanner, 276 Ill. 594, 596 (1917). The fee tail prevented any \u201ctenant in tail\u201d from cutting off the rights of other issue or the original grantor. By giving his descendants a fee simple estate, Ralph Dempsey forfeited the absolute right to reverter. Peters, 6 Ill. 2d at 544. Thus, contrary to the premise of the fee tail, his descendants had the power to cut off the rights of their issue and the right of reverter in the original grantor. By conveying the estate in fee simple, no matter how far down the lineal chain the conveyance may be, the fee tail is destroyed.\nBecause the estate is not a fee tail created by common law, section 6 of the Illinois Conveyances Act does not vest the estate upon the birth of David\u2019s children.\nIII. The Remainder at Common Law\nAbsent application of the fee tail estate and the Illinois Conveyances Act, we are left with the plain language of the will. The devise gives a life estate to David, with the remainder to the heirs of his body in fee simple. To determine whether that remainder is contingent or vested, we look to the common law. Aetna Life Insurance Co. v. Hoppin, 249 Ill. 406 (1911)\nA remainder is contingent when it is conditioned upon the happening of an event. Oak Park Trust & Savings Bank v. Baumann, 108 Ill. App. 3d 322 (1982). Since no one can be the heir of a living person, heirs cannot be ascertained until that person\u2019s death. People v. Emery, 314 Ill. 220, 225 (1924). In other words, becoming an heir is contingent upon the death of the ancestor. Consequently, the terms \u201cheirs of the body\u201d must create a contingent remainder:\n\u201cFuture estates, unlike present interests, may be limited to persons who are not ascertained or who are not even in existence, provided there is a present particular estate to sustain the remainder and the grantee shall be in existence when the time arrives for the enjoyment of the estate. Such an estate is a contingent remainder ***. A conveyance for life with remainder to the heirs or heirs of the body of a living person creates a contingent remainder.\u201d (Emph\u00e1sis added.) Aetna Life Insurance Co., 249 Ill. at 413-14.\nIllinois courts have consistently construed the remainder to be contingent when the fee tail does not apply. See Aetna, 249 Ill. at 415 (holding that when the devise is uncontrolled by statute and the remainder is conveyed to the heirs of a person\u2019s body, the remainder is contingent until that person\u2019s death, at which time heirs can be ascertained); see also Spicer v. Moss, 409 Ill. 343 (1951).\nDefendant argues that two Illinois Supreme Court cases, Barker v. Walker, 403 Ill. 302 (1949), and Moore v. Reddel, 259 Ill. 36 (1913), support his contention that the remainder vested upon the birth of David\u2019s first child. In reviewing conveyances similar to the one here, Barker and Moore both held that the remainder vested upon the birth of the grantee\u2019s first child. However, both cases were decided within the context of section 6 of the Illinois Conveyances Act. In this case, we have already determined that the conveyance is not subject to the restrictions of section 6. Thus, Barker and Moore do not control.\nThe remainder is contingent and vested upon David\u2019s death. At the moment of David\u2019s death, his heirs were determined. The trial court correctly ruled that the estate he distributed per stirpes, with defendant taking a one-half share, and plaintiffs, through their father, taking a one-quarter share each.\nIV The Presumption in Favor of Early Vesting\nDefendant also urges this court to reverse the trial court based on Illinois\u2019s presumption in favor of early vesting of future interests. This presumption only applies, however, if a later time for vesting is not apparent from the express provisions of the will. Colgan v. Sisters of St. Joseph of Carondelet, 237 Ill. App. 3d 579 (1992). Our supreme court has stated that a conveyance for life with remainder to heirs of the body of a living person creates a contingent remainder. Aetna, 249 Ill. 406. Thus, in this case, the remainder is contingent as a matter of law and does not vest until the grantee dies and the heirs can finally be determined. We need not look to presumptions to reach the correct result.\nCONCLUSION\nThe judgment of the circuit court of Tazewell County is affirmed.\nAffirmed.\nMcDADE, EJ., and SCHMIDT, J., concur.", "type": "majority", "author": "JUSTICE LYTTON" } ], "attorneys": [ "Sean M. Anderson (argued) and Dean B. Rhoads, both of Sutkowski & Rhoads, Ltd., of Peoria, and Kristin L. Cantu (argued), of McDermott, Will & Emery, of Chicago, for appellant.", "Jeffrey G. Sorenson (argued) and Janice M. Powell, both of Howard & Howard Attorneys, PC., of Peoria, for appellees." ], "corrections": "", "head_matter": "JENNIFER CORRINNE DEMPSEY et al., Plaintiffs and Counter-defendants-Appellees, v. IAN RANN DEMPSEY, Defendant and Counterplaintiff-Appellant.\nThird District\nNo. 3-02-0816\nOpinion filed August 18, 2003.\nSean M. Anderson (argued) and Dean B. Rhoads, both of Sutkowski & Rhoads, Ltd., of Peoria, and Kristin L. Cantu (argued), of McDermott, Will & Emery, of Chicago, for appellant.\nJeffrey G. Sorenson (argued) and Janice M. Powell, both of Howard & Howard Attorneys, PC., of Peoria, for appellees." }, "file_name": "0969-01", "first_page_order": 987, "last_page_order": 993 }