No. 3--09--0170
Filed December 7, 2009
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2009
DOROTHY I. PORUBA, ) Appeal from the Circuit Court
) of the 13th Judicial Circuit
Plaintiff-Appellant, ) La Salle County, Illinois
)
v. ) No. 08--CH--351
)
FRANK A. PORUBA, JR., )
) Honorable James A. Lanuti,
Defendant-Appellee, ) Judge, Presiding.
JUSTICE SCHMIDT delivered the opinion of the court:
Plaintiff, Dorothy Poruba, filed a complaint against
defendant, Frank A. Poruba, Jr., to partition certain real
estate. Plaintiff is the sole life tenant and defendant the sole
remainderman. The circuit court of La Salle County granted
defendant's motion to dismiss plaintiff's complaint pursuant to
section 2--615 of the Illinois Code of Civil Procedure (the
Code). (735 ILCS 5/2--615 (West 2008)). We affirm.
BACKGROUND
Plaintiff, Dorothy Poruba, transferred real estate commonly
known as 1105 North Otter Creek Street, Streator, Illinois, to
Frank Poruba, reserving a life estate. Plaintiff is the sole
owner of a life estate in the property, and defendant is the sole
owner of the vested remainder.
Plaintiff filed a complaint seeking to partition the real
estate. Defendant filed a motion to dismiss the complaint,
indicating that a life tenant could not maintain a partition
action against a remainderman. The trial court dismissed the
complaint, holding that a single life tenant with exclusive
possession to the entire piece should not be able to force a
partition action against a single remainderman. Plaintiff filed
a timely appeal.
ANALYSIS
Plaintiff contends that the trial court erred by granting
defendant's motion to dismiss the complaint because a life tenant
has a right to compel a partition against a remainderman. A
judge's ruling pursuant to section 2--615 of the Code (735 ILCS
5/2--615 (West 2008)) is reviewed de novo. King v. First Capital
Financial Services Corp., 343 Ill. App. 3d 404, 798 N.E.2d 118
(2003).
Plaintiff seeks to force a sale of the real estate pursuant
to the Code (735 ILCS 5/17--101 (West 2008)). The Code provides:
"When lands, tenements, or hereditaments
are held in joint tenancy or tenancy in common
or other form of co-ownership and regardless of
whether any or all of the claimants are minors
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or adults, any one or more of the persons
interested therein may compel a partition
thereof by a verified complaint in the circuit
court of the county where the premises or part
of the premises are situated." (Emphasis added.)
735 ILCS 5/17--101 (West 2008).
According to plaintiff, this statute does not require that
the land be held in joint tenancy or tenancy in common, or that
the landowners have a concurrent right to possession of the
property in order to be subject to a partition suit.
Specifically, plaintiff contends that under the Act, land can be
held in any "other form of co-ownership" such as a single life
tenancy and a remainder interest.
Plaintiff cites Westerdale v. Grossman, 312 Ill. App. 3d
884, 728 N.E.2d 67 (2000), and Wells v. Dalies, 318 Ill. 301, 149
N.E. 279 (1925), in support of her argument. However, the facts
of both Westerdale and Wells are inapposite to the case at bar.
Neither case authorizes a single life tenant to force a partition
upon a single remainderman. Rather, both cases deal with
partition actions between multiple life tenants or between
multiple remainderman.
In the case at bar, we have a single life tenant and a
single remainderman. A life estate is defined as "[a]n estate
whose duration is limited to the life of the party holding it, or
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some other person. *** Upon the death of the life tenant, the
property will go to the holder of the remainder interest or to
the grantor by reversion." Black"s Law Dictionary 924 (6th ed.
1992). A remainderman is "[o]ne who is entitled to the remainder
of the estate after a particular estate carved out of it has
expired." Black's Law Dictionary 1293 (6th ed. 1992). There-
fore, we conclude that a single life tenant and a single
remainderman do not have a concurrent right to possession of the
real estate and are consequently not "co-owners" of the property
under the Act.
Put another way, a single life estate and a single
remainder interest are two separate estates in land. There is
nothing to partition. Plaintiff is the sole owner of the life
estate. Defendant is the sole owner of the remainder. The deed
that granted plaintiff the life estate and defendant the
remainder has already partitioned their respective interests.
CONCLUSION
For the foregoing reasons, we affirm the circuit court of
La Salle County.
Affirmed.
O'BRIEN, P.J., and HOLDRIDGE, J., concur.
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