dissenting:
It is agreed that the devise created a life estate in Leta Timmons with a contingent remainder in the heirs of her body, and an alternative contingent remainder for life in the testator’s son, Elmo, with a final remainder in the heirs of the body of that son. It is also agreed that any interest taken by the defendants under the will of Elmo, Jr., “remained contingent upon Leta Timmons dying without issue until that actually occurred.” Neither the alternative contingent life tenant, Elmo, nor the alternative contingent remainderman, Elmo, Jr., survived the initial life tenant Leta. Nevertheless, the majority holds that the remainder upon the second alternative contingent vested in Elmo, Jr., during the lifetime of the first life tenant, Leta, and passed by the will of Elmo, Jr., the defendants.
That result is achieved by a construction of the language of section 6 of “An Act concerning conveyances” (Smith-Hurd Rev. Stat. 1923, ch. 30, par. 5). It provides:
“In cases where, by the common law, any person or persons might hereafter become seized, s * * in fee tail, a a a such person or persons, instead of being or becoming seized thereof in fee tail, shall be deemed and adjudged to be, and become seized thereof, for his or her natural life only, and the remainder shall pass in fee simple absolute, to the person or persons to whom the estate tail would, on the death of the first grantee, devisee a a a, first pass, according to the course of the common law, by virtue of such devise, a a a.”
From such statutory language, it is concluded that the testator’s son, Elmo, as devisee of the life estate in the second alternative contingent was a person who “might hereafter become seized in fee tail a a a.” Although testator’s son, Elmo, never became seized of that alternative contingent life estate, the statute is so applied that the remainder passed to Elmo, Jr., at the death of the testator’s son, Elmo, as “the person or persons to whom the estate tail would, on the death of the first a a a devisee a a a in tail, first pass, according to the common law, by virtue of such devise e °
The result appears to defy the logic of the language used. Essential to the functioning of the statute is that testator’s son, Elmo, became “seized” of an estate in fee tail. The term “seised” is used to express “possession of a freehold property.” (Black’s Law Dictionary (3d ed. 1963).) The operative language of the statute is that the person “instead of being or becoming seized thereof in fee tail, shall be deemed and adjudged to be, and become seized thereof, for his or her natural life only, and the remainder shall pass in fee simple absolute e (Emphasis added.) (Ill. Rev. Stat. 1923, ch. 30, par. 5.) It seems apparent that the remainder asserted to be in Elmo, Jr., is not provided by the statute until the testator’s son, Elmo, becomes seized of the life estate. Since it is agreed that the remainder was in the heirs of the body of the initial life tenant, Leta, until it was ascertained that she died without issue, it is difficult to conclude that either the testator’s son, Elmo, or the latter’s issue, Elmo, Jr., became seized in possession of a freehold prior to the death of Leta Timmons without issue.
The thesis of the majority requires the emphasis of the word “might” in the phrase “might hereafter become seized.” The word “might” is the past tense of the verb “may,” which has several nuances including “have power” or “may” or “am able” or “can.” (Webster’s Third New International Dictionary 1396 (1971).) The same source notes that the word “might” has the auxiliary meaning “possibility in the past.” (Webster’s Third New International Dictionary 1432 (1971).) In such context, the language would read “in cases whereby the common law, any person * * * might [have] hereafter become seized ° ° ° in fee tail.”
In the majority opinion it appears that the word “might” is construed or used in the connotation of a future possibility that the testator’s son, Elmo, become seized in fee tail upon the failure of the contingent remainder in the heirs of the body of Leta Timmons. By its terms, the statute functions where a person becomes seized of a fee tail. It does not, upon its face, purport to deal with contingent future seisin, or seisin which is prospective only in substitution for a failed estate. In short, there is no statutory language which served to accelerate the seisin required for the estates provided by the statute.
A second major interpretation in the majority opinion appears equally strained. We consider the statutory language “[T]he remainder shall pass in fee simple absolute, to the person or persons to whom the estate tail would, on the death of the first * * * devisee * * * in tail first pass, according to the course of the common law, by virtue of such devise, * * Ill. Rev. Stat. 1923, ch. 30, par. 5.
The opinion appears to say that although the son of the testator, Elmo, never became seized of a life estate, nevertheless, he is to be deemed “first * * * devisee ” 6 0 in tail” with a result that the remainder “first pass[ed], according to the common law, by virtue of such devise * * *” to Elmo, Jr.
By its terms, the statute does not purport to deal with a series of successive or substitutionary estates tail. By its language, it again functions when a person becomes “seized” of a freehold estate within the meaning of the statute and one cannot find any language that the statute functions without a person having become “seized” of a freehold estate.
In the language of the devise, Leta Timmons was the first devisee in tail. She was the only devisee who ever became seized of a possession of a freehold. In the language of the statute the heirs of her body were the persons to whom the estate would “first pass, according to the common law, by virtue of such devise * ° The “course of the common law” has been stated in detail in Frazer v. Board of Supervisors (1874), 74 Ill. 282; Moore v. Reddel (1913), 259 Ill. 36, 102 N.E. 257; and Biwer v. Martin (1920), 294 Ill. 488, 128 N.E. 518.
The opinion in Moroney v. Haas (1917), 277 Ill. 467, 115 N.E. 648, does not appear to support the pc r 1 ' ...... provision for distribution to her children was held to violate the rule against perpetuities and to be void. In effectuating other portions of the will, the court noted that it provided that if Stockel should die leaving no issue, the property would pass to Hill in fee. When partition was sought, Hill was dead, but the life tenant, Stockel, was living and a party-defendant. The opinion does state that if Stockel should die leaving no issue, the remainder to Hill will take effect in his heirs. The same result can have been true here if Elmo, Jr., had survived the life tenant, Leta. The opinion continued, however, stating, “[B]ut the remainder in case she [Stockel] dies leaving issue has not been disposed of and will vest in the heirs of the testatrix. Until her [Stockel’s] death it cannot be known in whom the title will finally vest — whether in the heirs of James A. T. Hill or those of the testatrix.” 277 Ill. 467, 473, 115 N.E. 648, 650. beneficiary of a trust, Stockel, was
While heirs generally are quite different from the specificity of the heirs of the body, the central critical point is that the determination in whom the contingent estate vests is not determined until the death of the life tenant.
The provisions of the devises here are substantially similar in contingency to those found in Golladay v. Knock (1908), 235 Ill. 412, 85 N.E. 649. As has been noted, Elmo, Jr., was never vested in possession of any interest in the land devised. During his lifetime there was no vesting of interest as a present fixed right of future enjoyment because the contingency that Leta Timmons die without issue prevailed.
The language of the companion and parallel devises to Leta Timmons and the testator’s son, Elmo, discloses testator’s contemplation of survivorship of the initial life tenant. With reference to the failure of issue in the first life tenant, the testator said, “[A]nd in the event of the death of the said Leta Timmons without issue, then in that event 9 9 * I give, devise and bequeath * * In Roper v. Finney (1955), 7 Ill. 2d 487, 489, 131 N.E.2d 106, the will provided that the property “ ‘shall, at her death, descend * * * according to the Statutes of Descent ” 9 ”.’ ” That opinion stated that the stated “words of futurity” disclosed an intention that the remainder interests were to vest, if at all, at the death of the life tenant.
As in Sloan v. Beatty (1953), 1 Ill. 2d 581,116 N.E.2d 375, the phrase “then in that event” which provides the substitutionary gift contains an adverbial statement of time referring to the death of the life tenant. Thus, it is proper to conclude that the testator contemplated, and by his language, provided that survivorship of Leta Timmons was a requisite to the vesting of any estate in substitution.
In Roper, the court said:
“Although in case of doubt courts usually favor that construction which will vest the remainder at the earliest opportunity, it is nevertheless the intention of the testator that controls. The purpose of construing a will is to give it that meaning which the words used warrant.” (7 Ill. 2d 487, 491, 131 N.E.2d 106, 108.)
See also Irish v. Profitt (1975), 28 Ill. App. 3d 607, 330 N.E.2d 861.
The trial court determined that upon the complete failure of the contingent remainders, the testator’s reversion descended to his heirs at law so that one-half of the real estate was devised to plaintiffs by the will of Leta Timmons and one-half was devised to defendants by the will of Elmo, Jr. (Spicer v. Moss (1951), 409 Ill. 343, 100 N.E.2d 761.) I would affirm that decree.