Butler v. Huestis

Citations

• 68 Ill. 594

Syllabus

<p>1. Power—person homing power to appoint a fee may appoint a less estate. Where a party has the power to appoint a fee, if there are no words of positive restriction he may appoint a less estate. But where an appointment is to be made of a particular estate, or in a certain manner, and in no other way, the negative words must control, and the donee of the power is not permitted to appoint a different estate, or in any .other manner.</p> <p>2. Where real estate was conveyed to a trustee for the benefit of A, and the trustee was required, upon the death of A, to convey the same, or so much thereof as might remain undisposed of, to such person or persons as A, by her last will and testament, or by an instrument in the nature of a last will, should direct and appoint, in fee simple, and she, by her last will, gave and bequeathed the property to B during her natural life, with the reversion and fee thereof to the heirs of her bod}', it was held that if the appointment was void, so far as the reversion was concerned, for the want of a person in being to take the same, there was no reason why the life estate in B could not take effect, and operate as a valid appointment, there being no words in the trust deed restricting the exercise of the power, except that it should be by will or an instrument in the nature of a will.</p> <p>3. Shelly’s case—rule in. If in any instrument a freehold be limited to the ancestor for life, and the inheritance to his heirs, either mediately or immediately, the first taker takes the whole estate; if it be limited to the heirs of his bod)r, he takes a fee tail; if to his heirs generally, a fee simple. The words “heirs,” or “heirs of the body,” in such case, are words of limitation, and not of purchase.</p> <p>4. Same—rule in respect to estates tail repealed by owr statute. An estate tail is where lands and tenements are given to one and the heirs of his body begotten, and may be either general or special. As our statute has saved the entail t