I do not concur in the conclusions reached in the majority opinion. While correctly stating that the rule in Shelley'scase is a rule of law and not one of construction, the opinion, in considering the applicability of the rule, in effect treats it as a rule of construction. It is said that it was the testator's intention that the property descend "in *Page 328 the Gehlbach blood, giving to her surviving husband only such portion as the laws of descent might provide." There is nothing in the deed to indicate that the grantor intended the property to descend in the Gehlbach blood alone, and such view appears not to have been advanced in the briefs of either side. The language of the deed, "and if she leaves no child or children surviving her, then to her heirs according to law," is apt language for the application of the rule in Shelley's case. The grant is to Ann Briegel for life and then to the heirs of her body surviving, with disposition to her heirs general on failure of surviving heirs of her body. By the words "heirs of her body" a grant is made to those heirs as a class, without explanation as to whether the word "heirs" means sons, children or the like. The word "heirs" is unrestricted, and so by all authorities is deemed to have been used in a technical sense, regardless of the intention of the grantor. The grant is in strict conformity with the requirements of the rule inShelley's case. (Bails v. Davis, 241 Ill. 536; Baker v. Scott, 62 id. 86.) The words "heirs according to law" are to be regarded as words of limitation and not of purchase. There is nothing in the phrase qualifying the word "heirs." "Heirs," when so used, has been uniformly held to be a word of limitation and not of purchase. (People v. Emery, 314 Ill. 220;Depler v. Dyer, 312 id. 537; Cook v. Sober, 302 id. 498;Ætna Life Ins. Co. v. Hoppin, 249 id. 406; Pease v.Davis, 225 id. 408; Deemer v. Kessinger, 206 id. 57; Fowler v.Black, 136 id. 363; Ryan v. Allen, 120 id. 648; Baker v. Scott,supra.) Words in a deed or will are in law considered words of limitation when they define the extent or quality of the estate conveyed, and where the limitation is to heirs-at-law they take by descent, and the statute is resorted to to determine the persons upon whom the law casts the estate on the death of the ancestor. The heirs contemplated by the rule are those of the whole line of inheritable blood who are to take from generation to generation as heirs of the *Page 329 one who takes the particular estate. The word "heirs" is a technical word with a fixed legal meaning, and, unless controlled by qualifying words so as to describe a different class of heirs from those who would take by virtue of the Statute of Descent, must be interpreted according to its strict technical meaning. Cook v. Sober, supra; Richards v. Miller,62 Ill. 417; Rawson v. Rawson, 52 id. 62.
I cannot concur in the statement in the opinion that "the rule in Shelley's case does not apply where the remainder is contingent," and with deference I suggest that the cases cited in support of this conclusion of law do not afford such support. Bails v. Davis, supra, was a grant "to Joseph Kretzer and Mora Kretzer, his wife, during their natural lives and after their death to the heirs of said Joseph Kretzer." The rule in Shelley's case was held to apply, and I am unable to discover any statement in the opinion indicating that the rule does not apply where the remainder is contingent. So with the citation to Fearne on Contingent Remainders, page 25. The devise there described is declared to be one not in contingency or abeyance. No intimation is there given that the author considered that the rule in Shelley's case does not apply where contingent remainders are created by deed or will.
Other cases cited as holding that the rule in Shelley's case did not apply are based on the conclusion that the language used constituted such qualification or explanation of the word "heirs" as to restrict its meaning and forbid its use in the technical sense. These cases contain no hint that the non-applicability of the rule in Shelley's case is because of the existence of contingent remainders but because of the fact that the word "heirs" was not used in its technical sense. Language which so qualifies the word "heirs" as to restrict the meaning of the term to persons who may be the heirs at a particular time renders the word "heirs" a word not of limitation but of purchase. Such *Page 330 was the holding in Ætna Life Ins. Co. v. Hoppin, supra, where the remainder was conveyed to the heirs of the body of Sarah Hoppin, "their heirs and assigns." It will be noted that the remainder was not to the heirs of Sarah Hoppin but to the heirs and assigns of the heirs of the body of Sarah Hoppin, thus creating new ancestors from whom the succession was to be derived and from whom an estate in fee simple descended. It is such a contingent remainder as is held not devisable in DuBois v. Judy, 291 Ill. 340, and Benson v. Tanner, 276 id. 594. It may be further observed that the devisability of contingent remainders is now provided by the Statute of Wills. Laws of 1829, sec. 1, p. 191.
I am unable to find any case or text book supporting the broad statement in the opinion that the rule in Shelley's case does not apply where a contingent remainder is created. On the other hand, in Cook v. Sober, supra, and Ryan v. Allen, supra, where a remainder, contingent because of a condition precedent to which it was subject, was considered, the rule in Shelley'scase was held to apply. It was there further held that upon the occurrence of the contingency or performance of the condition the remainder would vest in the ancestor. (See, also, 1 Tiffany on Real Prop. 530, Kales on Future Interests, (2d ed.) sec. 440, and Eby v. Shank, 196 Pa. 426.) Preston, in his work on Estates, at page 266 states that it is immaterial to the application of the rule in Shelley's case whether the limitation to the heirs is to give a vested or contingent interest. This statement is, in effect, repeated on pages 315 and 324. In 2 Washburn on Real Property, (6th ed.) p. 562, it is said: "The mere fact that the remainder was contingent does not hinder the operation of the rule the moment the remainder vests." These authorities, together with Smith on Executory Interests, sec. 418, p. 212, 1 Hayes on Conveyancing, 544, and Challis on Real Prop. 163, all support the proposition that the rule in Shelley's case applies though the subsequent limitation of the estate be contingent. *Page 331
The misconception, as I view it, arising in the majority opinion on this subject, lies in a failure to distinguish those cases where the deed or will conveys to heirs, or heirs of the body in the technical sense, from those where the gift or grant is to such as would be heirs at a certain time, or to children where the word "child" or "children" is used not in the sense of heirs but as distinguishing those taking from the heirs or heirs of the body as a class. This is the distinction upon which the decision in Hanes v. Central Illinois Utilities Co.262 Ill. 86, is based. That case is not, therefore, in my opinion, authority for the statement in the majority opinion that the rule in Shelleys case does not apply to contingent remainders. As I understand the rule, where the word "heirs" or "heirs of the body" are used in their technical sense — and there is always a strong legal presumption that the word "heirs" is so used, (Winter v. Dibble, 251 Ill. 200, Carpenter v. Hubbard, 263 id. 571,) — they are words of limitation and not of purchase, and the rule that the ancestor takes the remainder so limited, and not the heirs, invariably applies; and this is so regardless of whether the remainder thus created was contingent. The requisites of the rule are: (1) A freehold estate in the ancestor; (2) a limitation of the remainder to the heirs or heirs of the body of the person taking the freehold estate, by the designation of heirs as a class, without words showing that the testator meant sons, daughters, children, etc.; (3) the estate of freehold and the remainder must be created by the same instrument; and (4) must be of the same quality — that is, both legal estates or both equitable estates. (Bails v. Davis, supra; Lord v. Comstock,240 Ill. 492; Baker v. Scott, supra.) It seems to me clear that this conveyance fully meets all of these requisites.
I am also of the opinion that Boon v. Boon, 348 Ill. 120, on which the majority opinion places main reliance, should be further considered. In that case two alternative *Page 332 contingent remainders were conveyed. At the death of the life tenant the property was to vest in the heirs of the body of Elvin E. Boon, provided if said Boon should die without children or descendants of children then the lands at his death should vest in his heirs-at-law, and further provided that if any child born to Boon should die before his death leaving a child or children, then such child or children to take under that clause the same interest that the parent would have taken. Elvin E. Boon was the only heir. He had four children at the time of the testator's death. The rule in Shelley's case was held inapplicable. The opinion in that case discusses the first devise, only. The effect of the devise to Elvin Boon's heirs in case he died leaving no children was not discussed, but the direction, on remandment, was to construe the will as "devising the land to Elvin E. Boon for life with remainder in fee simple to the heirs of his body, if any, the child or children, if any, of a child of Boon that died in his lifetime to take the interest in the property that his or their parent would have taken had he or she survived the life tenant, and in case Boon dies without leaving a child or descendant of a child him surviving, then at his death the real estate to go to his heirs-at-law." Under the authorities cited herein, the words "in case Boon dies without leaving a child or descendant of a child surviving him, then at his death the real estate to go to" the heirs-at-law of Boon, in the absence of explaining or qualifying words, conveyed a fee, under the rule in Shelley'scase, to the life tenant, since those words as there used were words of limitation and not of purchase.
I am of the opinion that the decree in this case should be reversed. *Page 333