4. Wills 629, 634(1)-Remainder vested Suit by Cora E. Baley against John H.

according to legal meaning of devise not con- Straban and another. From a decree of distingent because of subsequent provisions. missal, plaintiff appeals. Affirmed.

Law favors vesting of estates, and remainder vested according to legal meaning of words

John E. Wall, of Quincy, and Scofield & of devise will not be held contingent because of Bell, of Carthage, for appellant. subsequent provisions not necessarily requir

Govert & Lancaster, of Quincy, for ap ing it.

pellees. 5. Remainders Own 4-Remainder contingent, 11 life estate depends on contingency.

DE YOUNG, J. An amended bill, in lieu If continuance of life estate be on some of an original bill of complaint, was filed in contingency, or if there be some other uncer- the circuit court of Adams county by Cora E. tain and dubious event necessary to be deter- Baley, the appellant, against John H. Stramined before vesting of estate, remainder would han and Andrew J. Straban, the appellees, be contingent.

for the partition of certain real estate in 6. Remainders m4_"Vested remainder" and that county. A demurrer to the amended "contingent remainder" distinguished. bill was sustained. Appellant stood by her

Remainder is vested if at every moment amended bill, which was dismissed at ber during its continuance it becomes present es- costs. This appeal followed. tate, whenever and however preceding freehold Peter Strahan died testate in Adams counestates determine, but is contingent, if fulfill- ty on June 4, 1914, leaving him surviving ment of condition precedent, other than de- Ellen Strahan, his widow, Cora E. Baley, termination of preceding estates, is necessary the appellant, his daughter, John H. Strahan for it to become present estate.

and Andrew J. Strahan, the appellees, his [Ed. Notę. For other definitions, see Words and Phrases, First and Second Series, Contin- sons, and Margaret E. Strahan, another

daughter, his only heirs at law. His will gent and Remainder; Vested Remainder.]

was probated on July 22, 1914. By the first 7. Wills Cm 634(16)-Remainder is vested, if section of his will he directed the payment of words giving vested interest are followed by his debts; by its second section he bequeathclause divesting it.

ed to his wife all his personal property, inIf condition is incorporated in description cluding money, to be taken by her in lieu of of or gift to remainderman, remainder is contingent; but if, after words giving vested in her award; by the third section he gave to his terest, clause divesting it is added, remainder is wife "all the use, rents and income of the vested.

northwest quarter of the northwest quarter 8. Remainders en 4-Uncertainty of right to of section 13 and the northeast quarter of estate renders remainder contingent.

the northeast quarter of section 14, It is not uncertainty of actual enjoyment of to have and to receive the same during her estate, but uncertainty of right thereto, which natural life, in lieu of any other rights that makes remainder contingent.

she may have by law in real estate"; and 9. Wills Em 634(9) - Remainder to ascertained he gave to his son Andrew J., an appellee,

by its fourth and fifth sections, respectively, person on event certain to happen is vested, and to his daughter Cora E. Baley, the apthough subject to defeat by remainderman's death,

pellant, each “$1,000, payable after the death When person to whom remainder after life of my wife.” The sixth section of the will, estate is limited is ascertained, and event on which is in controversy here, reads: which it is to take effect is certain to hap "Sixth-I give, devise and bequeath to my pen, it is a vested remainder, though by its daughter Margaret E. Straban the northwest terms it may be entirely defeated by such per-quarter of the northwest quarter (further deson's death before termination of particular es- scribing the property), to have and take pos.

session of the same after the death of my said 10. Wills 634 (8)–Remainder held to have wife, Ellen Strahan. In case of her death be

vested in testator's daughter on his death, fore that time this tract of land shall pass and not contingent on her survival of life and become the property of my son John H. tenant.

Strahan." Under will deviging land to testator's daughter, "to have and take possession of the

By the seventh section the testator desame after the death of my said wife,” to whom vised the northeast quarter of the northeast he devised life estate, and providing that, in quarter of section 14 "to my son John H. case of daughter's death before such time, Strahan, to have and take possession of the "land shall pass and become the property of same after the death of my said wife, Ellen my son,” remainder vested in daughter on tes- Strahan.” John H. Strahan was appointed tator's death, and, she having conveyed her executor. After the probate of her father's interest in her lifetime, no interest descended to her heirs on her death, and there was noth- will, on May 2, 1917, Margaret E. Strahan ing to partition.

conveyed to her brother John H. Strahan,

one of the appellees, by quitclaim deed dated Appeal from Circuit Court, Adams Coun- that day, the land devised to her by the sixth ty; Harry Higbee, Judge.

section of the will. Ellen Strahan, the wid


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(145 N.E.) ow, died in 1919 or 1920. Margaret E. Stra-, time of the vesting of the remainder, while ban died shortly after the death of her the appellees argue that they have reference mother.

solely to the time of taking possession. The The question at issue is whether Margaret identical pbrase also appears in the seventh E. Strahan had any alienable interest in the section, which devised the remainder in the property at the time of her conveyance to other tract to John. In both sections the her brother John H. Strahan. Appellant words "have" and "take" are followed by a contends that by the will Margaret E. Stra- single object, "possession.” It is not unhan took only a contingent remainder, while common to find such words as “to have and the appellee John H. Strahan insists that the to hold," "to have and to take," "to take efremainder was vested, the possession only fect and be enjoyed,” and similar expresbeing postponed, and that Margaret E. Stra- sions, in instruments, especially wills, where han's interest was subject to divestiture in the same intention could be conveyed by the the event that she died before her mother. use of the words “to have," or "to take efIf the remainder became vested in Margaret fect,” or “to be enjoyed,” without the use E. Straban upon her father's death, the quit- of additional words. claim deed conveyed her interest, nothing [2, 3] Blackstone defines a remainder as remained to descend to her heirs at law upon an estate "limited to take effect, and be enher death, and consequently there would be joyed after another estate is determined." nothing to partition.

1 Sharswood's Blackstone's Com. bk. 2, p. [1] The court will consider the will and 163. There must be a precedent particular all its parts in their relation to each other, estate in order to support a remainder. The to ascertain the intention of the testator in term “remainder" is relative, and implies a any particular provision, and give effect to prior disposition of some part of the estate; such intention if it can be done consistently but the particular estate and the remainder with the law. By the third section the wid- constitute one whole, are carved out of the ow was given "all the use, rents and income" same inheritance, and may both vest at the of the real estate devised, “to have and to same time and subsist together. It does not receive the same during her natural life, in follow that an estate in remainder which is lleu of any other rights that she may have subject to a condition is a contingent reby law in real estate." This section only mainder. The condition may be precedent or purports to make provision for the widow subsequent. If the latter, the estate vests during her life, without any suggestion of 'immediately, subject to being divested by the the vesting of the remainder. The testator happening of the condition; if the former, devised the remainder in one tract uncondi- the remainder cannot vest until that which tionally to his son John. The remainder in is contingent has happened. Haward v. Peathe other tract he devised to his daughter vey, 128 Ill. 430, 21 N. E. 503, 15 Am. St. Margaret in the same language, but he added Rep. 120; Golladay v. Knock, 235 Ill. 412, 85 a sentence to the effect that, if Margaret N. E. 649, 126 Am. St. Rep. 224; Meldahl v. died before his widow, the tract devised to Wallace, 270 Ill. 220, 110 N. E. 354. Margaret should pass and become the prop [4-7] The law favors the vesting of eserty of John. The persons in the mind of tates, and a remainder vested, according to the testator, as shown by these three sec- the legal meaning of the words of the detions, were his widow, for whom he wished vise, is not to be held contingent by virtue to provide for life, his son John and his of subsequent provisions of the will unless daughter Margaret. The gift of the life es- those provisions necessarily require it. Pin. tate was the reason for postponing the tak- grey V. Rulon, 246 Ill. 109, 92 N. E. 592; ing of possession by Margaret and John of Knight v. Pottgieser, 176 Ill. 368, 52 N. E. their respective tracts. No reason is appar. 934. If the continuance of the life estate ent from the will, considered as a whole, for were upon some contingency, or if there were postponing the vesting of the remaind rs. some other uncertain and dubious event necBy the fourth and fifth sections the son An-essary to be determined before the vesting drew and the daughter Cora were bequeathed of the estate, then necessarily the remain$1,000 each. No bequest of personal prop- der would be contingent. Stevens v. Van erty was made by the will to either John or Brocklin, 295 Ill. 434, 129 N. E. 68. "A reMargaret. There was no devise of real es- mainder is vested if at every moment during tate to either Andrew or Cora. A section its continuance it becomes a present estate of the will was devoted to each child, and whenever and however the preceding freethere was no reference to any child in any hold estates determine. A remainder is conother section except the sixth, by which it tingent if, in order for it to be become a was provided that the tract devised to Mar- present estate, the fulfillment of some congaret should pass, to John, if Margaret died dition precedent, other than the determinabefore her mother.

tion of the preceding freehold estates, is necThe appellant contends that the words "to essary." Gray's Rule Against Perpetuities have,” in the phrase "to have and take pos- (3d Ed.) § 9. "If the conditional element is session," in the sixth section, denote the incorporated into the description of or into

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the gift to the remainderman, then the re- entirely defeated by the death of such permainder is contingent; but if, after words son before the termination of the particular giving a vested interest, a clause is added di- estate. An estate in remainder is not renvesting it, the remainder is vested." Id. 8 | dered contingent by the uncertainty of the 108; Brechbeller v. Wilson, 228 Ill. 502, 81 time of enjoyment. The right and capacity N. E. 1094.

of the remainderman to take possession of Because the law favors the vesting of es- the estate if the possession were to become tates, it prefers to construe conditions as vacant, and the certainty that the event un subsequent rather than precedent. In the on which the vacancy depends must happen beginning of the sixth section the testator some time, and not the certainty that it will used the words "give, devise and bequeath.” happen in the lifetime of the remainderman, If he had not believed that these words dis- determines whether or not the estate is vestposed of the remainder, he could as readily ed or contingent.” 23 R. C. L. 501, 502. have used language to denote a condition (10) We believe the words "to have and precedent, and then have employed the words take," properly construed, refer to possession "give, devise and bequeath" to dispose of the only, and not to the title and possession, but remainder to John upon his sister's death be- that the words "shall pass and become the fore that of the widow; but in providing for property of” refer to the title. The remainder that contingency he used the words "shall was not devised to Margaret upon the conpass and become the property of," which are tingency that she survive her mother, but entirely consistent with the prior devise of on the theory that her death before that of the remainder subject to a condition subse- her mother constituted a condition subsequent. Appropriate terms, which are ordi- quent, on the happening of which the estate narily used to create a condition precedent already vested in her was to be divested, to the vesting of a remainder, are absent and pass to and become the property of her here. The sixth section contains no express brother John. provision which postpones the vesting of the Authorities cited by counsel for appellant remainder until the death of the widow. No contain expressions such as "would have condition precedent prevented the vesting, vested," or other conditional elements which immediately upon the testator's death, of prevented the vesting of the estate until the the remainder devised to John by the seventh happening of some contingency. The statesection of the will.

ment in Cummings v. Hamilton, 220 III, 480, [8, 9] The devise of the remainder to Mar-177 N. E. 264, and Knight v. Pottgieser, supra, garet by the sixth section is in identical lan- that “a fee in the remainder, subject to be guage, except that there is added, by a com- divested by the death of the person seized plete and independent sentence, the condi. prior to the death of the life tenant, is not, tion that, if she should die before the widow, for any practical purposes, to be distinthe land should become the property of John. guished from a remainder contingent upon The widow was the life tenant. Her death the remainderman surviving the life tenwas certain to occur; the time of her death ant,” is not applicable to this case. Here only was uncertain. Margaret, the person to the interest vested in Margaret could be conwhom the remainder was devised, was ascer- veyed, while if there were only a contingent tained. She survived the widow, and the life interest there would be nothing alienable. estate terminated. Had her death occurred Kenwood Trust Co. v. Palmer, 285 Ill. 552, prior to the termination of the particular 121 N. E. 186; Friedman v. Friedman, 283 estate, it would not have made the remain- Ill. 383, 119 N. E. 321 ; Du Bois v. Judy, 291 der contingent. It is not the uncertainty of 111. 340, 126 N. E. 104. the actual enjoyment of the estate which Since the remainder devised to Margaret renders a remainder contingent; it is the un- was vested, and not contingent, and was concertainty of the right to the estate which veyed in her lifetime to her brother John, no makes it so. "When the person to whom a interest descended to her heirs upon her remainder after a life estate is limited is death. There was therefore nothing to parascertained and the event upon which it is to tition. The decree of the circuit court of take effect is certain to happen it is a vested Adams county is affirmed. remainder, although by its terms it may be Decree affirmed.

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(145 N.E.) (314 Ill. 170)

DUNCAN, C. J. Appellee, as administraHARGES V. ZANDER et al. (No. 15028.) tor with the will annexed of the estate of

Lucy Pope Lachat, deceased, filed his bill in (Supreme Court of Illinois. Oct. 28, 1924. the superior court of Cook county for a conRehearing Denied Dec. 3, 1924.)

struction of the fifth clause of the will of 1. Wills 104—Uncertainty of complete ful- the decedent, making as parties defendant fillment of intention of testator does not ren

thereto Louis Otto Zander, Harry J. Grabo, der intention indefinite.

Longley Taylor (the latter as the Christian That there is uncertainty of complete ful- Science committee on publication), the people fillment of intention of testator does not ren

of the state of Illinois, and the unknown der intention uncertain and indefinite.

devisees under the will. Appellants, Louis

Otto Zander and Harry J. Grabo, the only 2. Charities ww34—Clause providing for dona. heirs at law of the testatrix, answered the

tions by trustee of $500 to building funds of bill, alleging that the fifth clause of the will Christian Science churches held not to limit application of churches organized at time of tioned therein might be decreed to pass as in.

was void, and praying that the property men. death.

Clause of will leaving property in trust, and testate property. They also filed a directing that sums of $500 be paid by trustee bill. On the hearing a decree was entered, deinto building funds of Christian Science church claring the fifth clause of the will valid, and es until total sum is exhausted, held not to limit appointing a trustee to administer the trust application of fund to churches organized at created in said clause, and dismissing the time of death.

cross-bill for want of equity.

Lucy Pope Lachat died on March 31, 1921, 3. Charities om 21(5)-Bequests in trust for

purpose of aiding building of Christian Sci- seised of real property valued at $5,000, and ence churches held not indefinite and uncer possessed of personal property valued at tain.

$10,000. By her will Joseph E. Otis was Bequests of fund in trust, directing pay- named executor and trustee. He declined to ment of sums of $500 toward building of loyal act as such executor and trustee, and appelbranches of Christian Science church, held not lee was appointed administrator with the indefinite and uncertain, so as to render clause will annexed. After first directing that void.

all of her just debts and funeral expenses be 4. Perpetuities em8(1) - Bequest in aid of paid, she bequeathed to her nephews, Louis

church building charitable, not in contraven. Otto Zander and Harry J. Grabo, of Chicago, tion of rule against perpetuities.

and Charles F. Harges, of Chicago, the sum Bequest of fund in trust, to aid in con

of $100 each. By the fifth clause of the will struction of churches, created charitable trust, she devised and bequeathed to Otis, as frusand was not in contravention of rule against tee, all of her estate and property remaining perpetuities; gift being in præsenti.

after the payment of her debts and funeral

expenses and the legacies aforesaid, in trust 5. Perpetuities 8(1)-Unconditional gift to

charity regarded as immediate, and not sub for the purposes therein mentioned, with the ject to condition precedent.

power, during the period of the trust, to hold, If intention of testator is to make uncon

manage, lease, control, care for, and protect ditional gift to charity, gift will be regarded as.

such trust property, and collect the income immediate, and not subject to any condition therefrom in accordance with his best judgprecedent, and therefore not within scope of ment and discretion, with full power to sell rule against perpetuities.

and convey the same, and to reinvest the pro

ceeds in real estate, high-grade stocks, rail6. Charities 22(5)-Gift in trust held not road, public utility, and other corporate void, as lacking definite object.

bonds, in government, state, county, drainage, Gift in trust to trustee, to further cause of and municipal bonds, and other bonds of a Christian Science by aiding in building of loyal similar character, or in any other interestbranches of church, was not void, as lacking bearing securities or property. The further certain definite object.

directions to the trustee were in the follow

ing language: Appeal from Superior Court, Cook County; Charles M. Foell, Judge.

"Out of said trust estate said trustee shall, Bill by Charles F. Harges, administrator Christian Science as taught and promulgated

for the purpose of furthering the cause of with will annexed of the estate of Lucy Pope by Mary Baker Eddy in her work "Science and Lachat, deceased, against Louis Otto Zander Health, with Key to the Scriptures,' make the and others, for construction of the will. following payments until the entire estate is From the decree, defendants appeal, Af exhausted: To the building fund of any Church firmed.

of Christ, Scientist, of Chicago, Illinois, which

is a loyal branch church of the mother church, Milton 0. Naramore, of Chicago, for ap- the First Church of Christ, Scientist, in Bospellants.

ton, Mass., and which may at the time of my Bangs & Frankhauser, of Chicago, for ap death be building a church edifice or which may pellee.

thereafter build a church edifice in the city of

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Chicago, the sum of five hundred dollars ($500), government, and that no conference of each.

churches shall be held, "unless it be when our “Should any such church so building desire churches located in the same state convene that $500 be given to its building fund it may to confer on a statute of said state, or to conapply to said trustee therefor, and thereupon fer harmoniously on individual unity and acthe trustee shall forthwith pay said sum of $500 to said church, but said trustee shall not tion of the churches in said state.”

[1] The first contention of appellants is wait for such request to be made, but shall ascertain through the proper channel-i. e., the that the language of the fifth clause of the Christian Science committee on publication of will is so indefinite and uncertain that it is Illinois—what churches are from time to time impossible of execution. Their argument is entitled to distribution of said fund hereunder.” | that in 39 years only 14 Christian Science

churches have been built in Chicago, and No successor in trust to Otis was named in that in order that a full distribution of the the will, and no method or authority given trust fund may be made there must be a rapfor the appointment of a successor in trust. id and continuous growth of the Christian The Christian Science committee on publica- Science faith in Chicago, and that such pretion in Illinois consists of one man, Longley sumption is unreasonable. Even if this court Taylor, who was made a defendant to the could say that such presumption is unreason. original and cross bills and filed answers.

able, there would be only an uncertainty of The testatrix at the time of her death was complete fulfillment of the intention of the a Christian Science practitioner and had been testatrix. The meaning of the language of for 20 years. She was a member of the Sec- the will and the intention of the testatrix ond Church of Christ, Scientist, of Chicago. would not thereby be rendered uncertain and The proof shows that there is in Boston,

indefinite. Mass., a church known as First Church of

[2, 3] It is also argued that by the lanChrist, Scientist, of Boston, Mass., which was guage of the fifth clause of the will the testafounded by Mary Baker Eddy and is known trix limits the application of the fund to as the mother church, The teachings of churches organized at the time of her death, Christian Science were first introduced in and that by reason thereof the clause is Chicago about 1883. In 1886 the first church made uncertain and impossible of execution. was organized in that city. Since that time The language used in this clause clearly there have been 15 other churches organized means that $500 may be given to the building in Chicago that are loyal to the mother fund of any Church of Christ, Scientist, of church. At the time of the death of testa Chicago, which is at the time of the gift a trix 12 or 13 of those churches had church loyal branch church, whether that time be at buildings and one other was constructing a

or after the death of the testatrix. Appelchurch. Three of those buildings were erect- lants arrive at their conclusion, we think, by ed between July 26, 1918, the date of the ex- giving too narrow a construction to the last ecution of the will, and March 31, 1921, the words in the first paragraph of the fifth date of the death of testatrix. Two of such clause above quoted, to wit: churches have started buildings in the city

“And which may at the time of my death be of Chicago since the death of the testatrix, and another is at work on a building project, after build a church edifice in the city of Chi

building a church edifice or which may thereThe churches erected are of stone and

cago.” brick and are very substantial structures, but the nature of the communities around The pronoun “which," twice used in this some of the older edifices has changed since clause of the will, has for its antecedent their erection, so that their location is no “any Church of Christ, Scientist, of Chicalonger the most desirable.

go,” etc. To arrive at the clear meaning of The church manual, which was introduced this language, we are at liberty to repeat bein evidence, provides that a member of the fore the second pronoun "which" its antecedmother church who obeys its by-laws and is “a ent, which is legitimate in arriving at a corloyal, exemplary Christian Scientist working rect construction and meaning of this clause. in the field” is eligible to form a church, but It will then read thus: that "a branch church” shall not be organized with less than 16 loyal Christian Scien-Christ, Scientist,

"To the building fund of any Church of

* which may at the tists, 4 of whom are members of the mother time of my death be building a church edifice, church, and that this membership shall in- or to the building fund of any Church of clude at least one active practitioner, whose Christ, Scientist, which may thereafter build a card is published in the list of practitioners church edifice.” in the Christian Science Journal. The manual sets out several rules governing the con It is also contended that what is “a loyal duct of services in the mother and branch branch church" is uncertain and indefinite. churches. It provides, also, that each branch | The record shows that among Christian Scichurch shall be distinctly democratic in its entists a loyal branch church is one that is government, and that no individual and no organized and conducts its services in acother church shall interfere with its affairs; cordance with the manual of the mother that each church shall have its own form of church. This is clearly the meaning that the

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