Friedman v. Steiner

Citations

• 107 Ill. 125
• 1883 Ill. LEXIS 235

Syllabus

<p>1. Will—of the estate devised—a determinable fee. A testator, after making certain bequests, devised the residue of his estate to his wife, “and unto her heirs and assigns forever, to the total exclusion of any and all person or persons whatsoever,” but upon the express condition that in case the wife, after his decease, should die intestate, and without leaving her surviving lawful issue, then all the rest and residue of the estate so bequeathed to the wife should be converted into money, and paid over by his executors, as follows: To A B, $5000, C D, $1000, etc.: Held, that the estate of the wife in the realty was not a mere life estate,' with power to dispose of the fee by will, as that could not be inherited, nor was it an estate in fee simple, as it can not descend to her heirs generally, but to the heirs of her body, but that her estate was an estate in fee determinable, which may be perpetual, or may be determined by her death intestate, without lawful issue, or previous alienation of the land. . '</p> <p>2. Under such devise the determinable fee granted to the wife may be changed into a fee simple absolute, either by the sale and conveyance of the land by her in fee simple, or by her death leaving a will granting the land to a devisee, or by her death leaving lawful issue.</p> <p>3. Same—qualities of a fee determinable. One of the peculiarities of a “fee determinable” is, that it may become a fee simple absolute upon the happening of any event which renders impossible the contingency upon which such estate is to end.</p> <p>i. Same—construction—■condition repugnant to estate given. • While conditions repugnant to the estate granted to which they are annexed are absolutely void, yet in the construction of a will the court must consider all the words of the will, including all provisos and conditions, for the purpose of ascertaining what estate the testator intended to confer by the qualifying words of the will.</p>