specially concurring:
We regard the conclusion reached in this case as correct but the process by which it is reached as not in accordance with rules of law. In Duffield v. Duffield, 268 Ill. 29, Henry T. Duffield and the heirs of his body were named as grantee and the deed purported to convey to the grantee a present estate in possession. The heirs of the body of Henry T. Duffield not then being in existence could not take such an estate, and the grant was to Henry T. Duffield, alone. In this case there was no grant of a present estate in possession but the conveyance was to Hannah F. Hodges and her bodily heirs of an estate to take effect in possession at the death of the grantor, Charles Cones. The words “and her bodily heirs,” contained in the grant, were words of limitation defining the character of the estate that was granted to Hannah F. Hodges. In the subsequent provision as to the time when the estate granted should take effect in possession, the grantor manifestly used “or her heirs” as denoting the same class of heirs as those to whom the estate had been limited, intending that the full ownership and control should then vest in Hannah F. Hodges if living, or her bodily heirs if she should die before the grantor.
The deed was in the statutory form and contained no habendum clause, which, under the former system of conveyancing, never granted an estate but was only used to define the extent of the estate granted or to qualify or explain its nature, and which is not contemplated or provided for in the forms of conveyances provided by the statute. As there is no habendum clause in the deed, what is said about the effect of such a clause seems to us to be inapplicable. The granting clause defined the nature and character of the estate granted, which at common law would have been a fee tail, and by section 6 of the Conveyance act it was turned into an estate for life in Hannah F. Hodges, with remainder to her bodily heirs.
Mr. Justice Carter, dissenting.