dissenting:
I dissent from the majority opinion for the reasons that section 2 — 7(e) of the Probate Act of 1975, as stated in the majority opinion, bars the right to disclaim property where an assignment, conveyance, encumbrance, pledge, sale or other transfer of the property, part or interest, or a contract therefor, by the disclaimant or his representative has been made.' Ill. Rev. Stat. 1985, ch. 110½/a, par. 2 — 7(e).
The majority holds the reference to “conveyance, encumbrance *** or other transfer” in section 2 — 7(e) refers only to such dispositions made after the interest being disclaimed has passed to the person or entity attempting to disclaim. The section in question does not say this, nor is any authority cited which so holds.
When the will of Donald’s mother was admitted to probate, title to the real estate in question vested in Donald as devisee under her will as of the time of her death. (In re Estate of Hall (1984), 127 Ill. App. 3d 1031, 469 N.E.2d 378.) As the majority opinion stated, the doctrine of after-acquired title applies to mortgages. The mortgage previously executed by Donald and Mary Ellen to Tompkins State Bank would create a valid lien against the real estate under the after-acquired-title doctrine. Consequently, Donald would be barred from disclaiming his interest in the subject real estate due to the mortgage lien. Since Donald could not disclaim his interest, the lien of Monmouth would also be enforceable.
I have no quarrel with the cases cited by the majority which hold when a valid disclaimer is made of a devise of a present interest, the property passes as if the “diselaimant had predeceased the decedent” unless the testator had provided otherwise. The key word is “valid” disclaimer. Here the encumbrance of the mortgage lien bars a disclaimer by Donald.
I further reject the assertions of the defendants that under the facts of this case the after-acquired-title doctrine does not apply. Their theory is this doctrine is not applicable where its imposition would enlarge the interest given under the original conveyance, citing Cooper v. Robinson (1922), 302 Ill. 181, 134 N.E. 119. In the instant case the covenants of title agreed to by Donald and Mary Ellen as contained in the mortgage were stated to apply to a full fee interest. Cooper v. Robinson (1922), 302 Ill. 181, 134 N.E. 119, is distinguishable.
I would affirm the trial court.