On April 30, 1888, Jacob Gehlbach, the father of the complainant, (appellee,) together with his wife, Louisa, conveyed to their daughter Henrietta Ann Briegel and Gustav Briegel, her husband, a quarter-section of land in Logan county, Illinois. The habendum in that deed is the source of the present litigation and contained the following language: "For and during their lifetime, then to the heirs of the body of our daughter, Henrietta Ann Briegel, and if she leaves no child or children surviving her, then to her heirs according to law." The grantor in that deed died six years later, leaving as his heirs twelve sons and daughters, including the complainant, and two grandchildren, the children of a daughter who died before him. Several of his sons and daughters who survived him have since died leaving children or grandchildren. Louisa Gehlbach, Jacob's widow, died May 9, 1899, and the daughter Henrietta *Page 318 died December 11, 1932. She never had any child or children, and there was therefore no surviving heir of her body. She left a will, which was proved and admitted to probate and which devised all of her real estate to Gustav Briegel, her husband, who is the appellant in this case.
This litigation was started by the filing of a bill for partition by Jacob Gehlbach, a son of the grantor in the deed above mentioned, which sets forth the interests in the premises averred to be owned by each of the parties to the bill and alleges that all of those interests are subject to the life estate of Gustav Briegel. The prayer is for partition in the usual form. The defendants include all the numerous heirs of Jacob Gehlbach, Sr., the original grantor, and the bill sets forth the interests of those heirs, which are alleged to be identical with the interest of the complainant. The only adverse interest set forth is that of the defendant Gustav Briegel, one of the grantees in the original deed, who claims that he is the sole owner in fee simple of the real estate involved. His general demurrer to the bill was overruled, a decree of partition was entered, and from that decree this appeal is taken.
The errors assigned are the overruling of the demurrer and the entry of the decree.
It is appellant's contention and theory that the deed conveyed an estate to Henrietta and Gustav Briegel for their joint lives, with the remainder in fee to Henrietta's surviving children, which remainder was contingent and never vested because of her never having had a child; that the words "heirs according to law," in the granting clause of the deed, if she leaves no child or children surviving her, then to her heirs according to law," under the rule in Shelley's case are words of limitation and convey a remainder in fee to Henrietta, which was expectant on the termination of her life estate and contingent on the event which actually happened — of her death leaving no child or children surviving her; that the effect of the deed was to grant, *Page 319 first, a life estate to Henrietta and her husband; second, a contingent remainder to her children in fee, which never vested; third, a contingent remainder in fee to Henrietta which could not vest in possession until the determination of the preceding contingent estate, and therefore could not merge with the life estate until the event upon which it depended occurred; that these remainders were alternative and depended on the event of Henrietta dying with or without children, and that when she died without children, eo instanti the contingent remainder passed to Gustav Briegel by virtue of her will and became vested in him in fee.
Appellee contends, and the trial court held, that the rule inShelley's case does not apply and that any discussion of it is unnecessary to a decision of this case; that the deed created two life estates, with alternative contingent remainders; that the fee remained in Jacob Gehlbach, Sr., during his lifetime and in his heirs after his death, not vesting until the determination by the death of Henrietta Briegel of the contingency as to the ultimate taker. The question thus presented to us amounts to these two points: (1) Does the deed from Jacob Gehlbach, Sr., express a definite intent as to the devolution of this title with sufficient clearness to be readily ascertainable from the face of the instrument itself? And if so, (2) Does the rule in Shelley's case, or any other rule of law, prevent that intent from being carried into effect?
On the first point we do not believe any serious doubt can be raised. To us it is clear that Jacob Gehlbach intended his daughter and son-in-law to have the use of this land during their lives and the life of the survivor of them. At this point in time — i. e., upon the death of the survivor — he wished the property to pass in possession as well as in fee to his daughter's children, the issue of her body, if she should have any who might survive, to receive such title, this being the first aspect of the alternative contingency. *Page 320 It was further his wish that if his daughter had no child or children or none surviving her, then that the property might descend in the Gehlbach blood, giving to her surviving husband only such portion as the laws of descent might provide. Our conclusion on this point is not disputed by the briefs of either party. It is contended, however, that the rule inShelley's case, which has always been recognized as in derogation of the intent of a grantor or testator, prevents this result; that by the operation of that rule the fee to the remainder pending the determination of the contingencies controlling its final vesting in possession was theoretically in the daughter, lying there dormant, to merge instanter upon her death, by virtue of her last will and testament, with the continuing life estate of her surviving husband.
The remainders created in the deed to Henrietta Ann and Gustav Briegel were contingent remainders with a double aspect. (Ætna Life Ins. Co. v. Hoppin, 249 Ill. 406; Farmer v.Reed, 335 id. 156.) Where a grant is of a life estate with contingent remainder or remainders the reversion is in the grantor and descends to his heirs-at-law. (Peterson v. Jackson,196 Ill. 40; Bender v. Bender, 292 id. 358;Matthews v. Andrew, 290 id. 103; Belding v. Parsons, 258 id. 422; Bond v. Moore, 236 id. 576.) The rule inShelley's case does not apply where the remainder is contingent. (Bails v. Davis, 241 Ill. 536; Robeson v. Duncan,74 N.J. Eq. 745, 70 A. 685; Cotton v. Mosely, 159 N.C. 1,74 S.E. 454, 40 L.R.A. (n. s.) 768; Wescott v.Meeker, 144 Iowa, 311, 122 N.W. 964, 29 L.R.A. (n. s.) 947;Doyle v. Andes, 127 id. 36, 102 N.W. 177, 69 L.R.A. 953; 4 Kent's Com. p. 218; Fearne on Contingent Remainders, p. 25;Perrin v. Blake, Hargrave's L. Tr. 503, 504; Campbell v. Rawdon, 18 N.Y. 412, 420.) A contingent remainder is not devisable where the contingency is as to the person who is to take and not as to the event. DuBois v. Judy, 291 Ill. 340,349; Drury *Page 321 v. Drury, 271 id. 336; Blackstone v. Althouse, 278 id. 481;Fitzgerald v. Daly, 284 id. 42; 4 Kent's Com. 261.
Appellant contends that the contingent nature of the remainder does not prevent it being devisable by will nor interfere with the operation of the rule in Shelley's case. We are unable to agree with this contention where the contingency applies to the person who is to receive the title, and we have definitely so held. Thus, in DuBois v. Judy, supra, we said: "It is only in cases where the contingency upon which the remainder is to vest is not in respect to the person but the event, and where the person who is to take if the event happens is ascertained, that the remainder may be granted or devised, but if the contingency is in the person who is to take, as where the remainder is limited to the heirs of one who is alive, there is no one who can make an effectual grant or devise of the remainder. — 2 Washburn on Real Prop. (6th ed.) 527, sec. 1557." It is only when the identity of the remainderman is fixed and certain and the contingency appertains only to the uncertainty of the event that a conveyance or devise of the contingent remainder may be effected. Kent states the rule that if the person is not ascertained, contingent remainders can neither be devised nor descend at the common law, (4 Kent's Com. 261,) and this rule has been consistently followed by this court. (Drury v. Drury,supra; Blackstone v. Althouse, supra; Fitzgerald v. Daly,supra.) The contingency in the case we are considering was only as to the person or persons who might take. The event — i. e., the death of Henrietta Ann Briegel — was certain to occur, and until the moment of her death no one could in law be an ascertained person qualified to convey or devise the remainder to this property.
In order to conform to appellant's theory of the case it would be necessary to enlarge upon and add to the rule inShelley's case. The effect of that rule, when it applies, is to vest the fee in the ancestor instantly and instantly to *Page 322 merge it with the freehold estate. If it does not apply in this manner it cannot apply at all. The rule, stated in its most simple form, is, that if an estate of freehold is limited to A, with remainder to his heirs, general or special, the remainder, although importing an independent gift to the heirs as original takers, shall confer the inheritance on A, the ancestor. (Hayes on Conveyancing, (5th ed.) 542; Johnson v. Buck, 220 Ill. 226;Peacock v. McCluskey, 296 id. 87.) As stated by Coke (vol. 1, 104a): "When the ancestor by any gift or conveyance takes an estate of freehold and in the same gift or conveyance an estate is limited either mediately or immediately to his heirs in fee or in tail, that always in such cases 'the heirs' are words of limitation of the estate and not words of purchase." In the deed which we are considering it is apparent that no estate is limited either mediately or immediately to the heirs of the life tenant. There is nothing more than a provision for the remote contingency that such heirs may receive the estate if Henrietta Ann Briegel should live her life and die without issue of her body surviving her, and it would be an express enlargement upon the rule to hold that it, in derogation of the intent of the grantor, conferred any kind of an estate upon Henrietta other than that expressly given by the deed. In one of his greatest opinions (Perrin v. Blake, supra,) Blackstone points out that the rule in Shelley's case is intended to defeat the express intent of the grantor or testator. In this court we have held that where the rule in Shelley's case does not apply, we are left free to adopt a construction which will carry into effect the intention of the testator or grantor.Hanes v. Central Illinois Utilities Co. 262 Ill. 86.
Appellant relies upon Kales on Future Interests (sec. 440) as authority for the proposition that a remainder, being contingent, does not prevent the application of the rule inShelley's case. The only authority cited by Kales in his text is Hanes v. Central Illinois Utilities Co. supra, *Page 323 which clearly does not sustain so broad an interpretation as appellant contends for. In that case the devise was to William Thomas Keene for life and at his death to his children in fee if he left any child or children surviving, and if not, then to his heirs-at-law. He died intestate, leaving two children, having in his lifetime granted a right of way which was assigned to the utilities company. Keene's daughter having acquired full title from her brother, brought ejectment against the utilities company and recovered. The utilities company contended that Keene had acquired a fee by the original devise under the rule in Shelley's case, but this court rejected that theory, saying: "This contention cannot be sustained. To apply the rule in Shelley's case this will must be construed as devising to William Thomas Keene an estate for life with remainder to his heirs." The will plainly did not do so, any more than does the deed in the present case. In the Hanes case we further said: "In a devise to one for and during his natural life, with remainder to his 'child' or 'children' in fee, the rule in Shelley's case has no application and the court is left free to adopt a construction which will carry into effect the intention of the testator." This holding of the court disposed of the merits of the Hanes case, and anything further that was said therein was unnecessary to its decision.
The case of Boon v. Boon, 348 Ill. 120, is quite in point and we believe decisive of the present inquiry. The devise then before the court was to Elvin E. Boon for life, "and at his death it is my will that the fee in said premises shall vest in the heirs of the body of said Elvin E. Boon. Provided that if said Elvin E. Boon should die without children or descendants of children then said land at his death shall vest in his heirs-at-law and provided, that if any child or children, born to the said Elvin E. Boon shall die before his death leaving a child or children then such child or children shall take under this clause the same interest in said premises that the parent would otherwise *Page 324 have taken." The testator died June 13, 1928, leaving Boon as his only heir, who was then forty years of age and had four living children. The cause came before the court on a bill to construe the will. We there held that the rule in Shelley'scase had no application and that Boon would not at common law by the devise become seized of an estate in fee tail, and that section 6 of the Conveyance act therefore had no application; that the devise was to Boon for life with a contingent remainder to the heirs of his body in fee simple. In that case we said: "The proper construction of the will, so far as the real estate is concerned, is that Boon takes a life estate with remainder at his death to the heirs of his body, if any, the child or children, if any, of a child of Boon that dies in his lifetime to take the interest in the property that his or their parent would have taken, and in case Boon dies leaving no child or descendant of a child surviving him, then at his death the real estate to go to the heirs-at-law of Boon."
We are of the opinion that the trial court correctly interpreted the deed in question, and that its decree should be, and is therefore, affirmed.
Decree affirmed.