## Facts

- A testator died in 1956 owning approximately 240 acres of Illinois real estate and left a will disposing of the property in three steps: (1) a life estate to his wife; (2) after her death, a joint life estate to his son and the son’s wife for the survivor’s life; and (3) then “the remainder” to “the heirs of the body” of the son, “share and share alike, and in fee simple.”
- The testator’s wife died in 1961; the son and the son’s wife then held the joint life estate.
- The son had three children at the testator’s death: one living biological child (Ian) and two other children (Karen and David Kevin).
- David Kevin died in 1981, leaving two adopted children (Jennifer and Kevin).
- The son’s wife died in 1984.
- Karen died in 1998 and devised her estate to Ian.
- The son died in 1999; at that time, the son’s only surviving descendants were Ian and the adopted children of David Kevin (Jennifer and Kevin).
- Jennifer and Kevin sued for a declaration of their interests in the property under the will.
- Ian contended the remainder vested at the testator’s death in the son’s then-living children (one-third each), allowing Ian to claim Karen’s share by devise; the trial court instead distributed the remainder per stirpes, one-half to Ian and one-half to Jennifer and Kevin together.

## Issues

1. Whether the devise “to the heirs of the body of my son ... in fee simple” created a fee tail in the son that would be converted by statute into a life estate with a vested remainder in the son’s children at the testator’s death.
2. Whether the remainder interest vested at the testator’s death or remained contingent until the son’s death, when “heirs of the body” could be identified.

## Decision

- The appellate court affirmed the judgment after de novo review.
- The will did not create a fee tail; it created successive life estates followed by a remainder to the son’s “heirs of the body.”
- A remainder to the “heirs” or “heirs of the body” of a living person is contingent because heirs cannot be ascertained until the person dies.
- The remainder vested upon the son’s death and was properly distributed per stirpes: one-half to Ian and one-half (undivided) to Jennifer and Kevin.

## Legal Principles

- A fee tail requires language granting an estate to a person and “the heirs of his body”; a will that instead grants defined life estates and then a remainder “in fee simple” to “heirs of the body” does not create a fee tail in the life tenant.
- A remainder limited to the “heirs” or “heirs of the body” of a living person is a contingent remainder because the class of heirs is unascertainable until the person’s death.
- When a contingent remainder vests at the ancestor’s death, distribution is determined by the qualifying heirs at that time, and per stirpes distribution may apply so that descendants of a deceased child take that child’s share.

## Conclusion

The court held that the will created successive life estates and a contingent remainder to the son’s “heirs of the body,” which could not vest until the son died; therefore, the remainder vested at the son’s death and was distributed per stirpes, giving the surviving child one-half and the adopted children of the deceased child the other half.


Dempsey v. Dempsey, 342 Ill. App. 3d 969, 795 N.E.2d 996 (Ill. App. Ct. 3d Dist. 2003)