Dempsey v. Dempsey
795 N.E.2d 996, 342 Ill. App. 3d 969, 277 Ill. Dec. 328 (2003)
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Rule of Law:
A devise of a remainder interest to the "heirs of the body" of a life tenant that also grants the interest "in fee simple" creates a contingent remainder that vests upon the death of the life tenant, not a fee tail subject to statutory conversion that would vest earlier.
Facts:
- In 1955, Ralph Dempsey executed a will devising approximately 240 acres of real estate.
- The will granted a life estate to his son, David Dempsey, and David's wife, Evangeline.
- Upon their deaths, the will gave the remainder interest to "the heirs of the body of my son, David Dempsey, share and share alike, and in fee simple."
- At the time of Ralph's death in 1956, his son David had three children: Ian, Karen, and David Kevin.
- David Kevin died in 1981, survived by his two adopted children, Jennifer and Kevin Dempsey.
- Karen died in 1998, devising her entire estate to her brother, Ian Dempsey.
- The final life tenant, David Dempsey, died in 1999, prompting the dispute over who held the remainder interest in the property.
Procedural Posture:
- Jennifer and Kevin Dempsey (plaintiffs) filed a complaint for a 'declaration of rights' in the circuit court to determine their interest in the property.
- Ian Dempsey (defendant) filed a motion for summary judgment, arguing he was entitled to a two-thirds share.
- The trial court denied Ian's motion and ordered the property to be distributed per stirpes, giving Ian a one-half interest and Jennifer and Kevin a combined one-half interest.
- Ian Dempsey appealed the trial court's judgment to the appellate court.
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Issue:
Does a devise of a remainder interest to the "heirs of the body" of a life tenant, "share and share alike, and in fee simple," create a contingent remainder that vests upon the life tenant's death?
Opinions:
Majority - Justice Lytton
Yes. A devise to the "heirs of the body" of a living person that includes the words "in fee simple" creates a contingent remainder that vests upon that person's death. The defendant argued that the will created a fee tail, which under section 6 of the Illinois Conveyances Act, would have been converted to a life estate in David with a vested remainder in his children at the time of their birth. However, the court found that the addition of the words "in fee simple" was fundamentally inconsistent with a fee tail, which is designed to restrict alienation and keep property within a bloodline. By granting the remainder in fee simple, the will gave the ultimate takers the power to convey the property freely, thus destroying the essential character of a fee tail. Since the statute did not apply, the court turned to common law. Under common law, a living person has no heirs; their heirs can only be ascertained at the moment of death. Therefore, the gift to the "heirs of the body of my son, David" was a contingent remainder, dependent on the condition of surviving David. Because Karen Dempsey predeceased David, her interest never vested, and she had no property right to devise to Ian. The remainder vested upon David's death in his then-living heirs: his son Ian and the children of his predeceased son, David Kevin (Jennifer and Kevin).
Analysis:
This decision reinforces the critical importance of precise language in drafting wills and trusts, particularly concerning future interests. It clarifies that the statutory conversion of a fee tail under the Illinois Conveyances Act is not triggered if the conveying instrument contains language, such as "in fee simple," that is antithetical to the nature of a common law fee tail. The ruling solidifies the common law principle that a gift to the "heirs" of a living person is a contingent remainder, delaying vesting until the ancestor's death. This precedent serves as a clear guide for determining when an interest vests, which directly impacts who inherits property when potential heirs predecease a life tenant.
