I cannot agree with the conclusion reached by the majority opinion. A proper conclusion would be reached in this case if it were considered on the basis of the rule in Shelley's case. The opinion disposes of this rule by saving that it does not apply where the remainder is contingent. Among other cases,Bails v. Davis, 241 Ill. 536, is cited, but it does not support this proposition. The effect of its holding is that where the rule in Shelley's case applies, the contingent remainder cannot be cut off by merger. That is obviously a correct statement, because the remainder is vested in the ancestor by operation of the rule. Stated in another way, where the rule in Shelley'scase applies there can be no contingent remainder to the heirs. *Page 325
The primary inquiry in this case is whether the rule inShelley's case applies to the grant made in the deed from Jacob Gehlbach to Henrietta Ann Briegel and Gustav Briegel. The language used is: "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." Henrietta Ann Briegel died leaving no children. The question then is whether the words "to her heirs according to law" are words of limitation or words of purchase.
It is elementary that words having a technical meaning must be given their technical meaning unless a contrary intention is shown. It is fundamental that if the words are used as words of limitation the rule in Shelley's case applies to vest the remainder in the ancestor. The words "to her heirs according to law" do not describe a class of purchasers but denote the whole line of succession from generation to generation. The language of the deed is such that the rule in Shelley's case should apply. But the majority opinion says that to apply the rule in this case would be "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 merge it with the freehold estate." This is a misconception of the rule. The remainder to the heirs, and not the fee, is vested in the ancestor. Whether there is a merger depends upon whether there is an intervening estate. In the case at bar there could be no merger of the remainder and life estate because one-half of the life estate was in Gustav Briegel. The majority opinion refuses to follow a statement in Kales on Future Interests that the fact that a remainder is contingent does not prevent the application of the rule in Shelley's case. It says that Hanes v. Central Illinois Utilities Co. 262 Ill. 86, does not support the statement in Kales on Future Interests. The statement is dictum, because the case was one where the words used were not of limitation but of purchase. *Page 326 The dictum is not erroneous, however. It is: "The rule inShelley's case could apply to this devise only in case William Thomas Keene had died leaving no child or children surviving him, in which event the grant to Frith would have been binding upon his heirs." So in this case, the devise to Gustav Briegel should be binding upon the heirs of Henrietta Ann Briegel and those of Jacob Gehlbach.
The majority opinion places great reliance upon Boon v. Boon,348 Ill. 120. An examination of that case will show that it is not in point and not contrary to the conclusion I have reached. The will there in question provides: "To my nephew, Elvin E. Boon, I will all my property, both real and personal and of every nature whatsoever for and during the term of his natural life with all the rights and incidents of a life estate therein, 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 have taken." Upon the death of the testator the life tenant had four living children. The circuit court construed the will to give the personal property to Boon as absolute owner and to devise a life estate in the real estate to him, with remainder to the heirs of his body. On appeal we held that the devise to the heirs of his body was so phrased as to be words of purchase and not of limitation, and therefore the rule in Shelley's case did not apply. This was correct, but it must be noted that the limitation to "his heirs-at-law" was not under consideration, and we did not hold that the rule in Shelley's case did not apply to it. We reversed the decree and remanded the cause with directions to enter a decree *Page 327 construing 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 dies 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; and also to construe the will as bequeathing the personal property to Boon for life, with a contingent remainder to the heirs of his body. There is no holding that the rule in Shelley's case does not apply to the alternative limitation to the heirs-at-law.
In principle the case at bar is not unlike that ofRyan v. Allen, 120 Ill. 648. There the devise was to Omar H. Allen, "the use or rents accruing from my house and one acre of land that said house stands upon, after his father's decease, provided his father does not sell said property, which privilege I grant him, provided it is necessary for his maintenance. After the said Omar H. Allen's decease the said house and land is to go to his nearest heirs." The power of sale was not exercised and the rule in Shelley's case was held to apply. So in this case, the contingency that Henrietta Ann Briegel died without leaving heirs of her body did not happen. The rule should also apply here. See, also, Stewart v.Kennoyer, 7 Watts S. 288.
The devise to Gustav Briegel of the estate in fee should have been upheld.