View this case and other resources at:
Citation. 22 Ill.45 Del. 394, 6 Terry 394, 75 A.2d 222 (Super. Ct. 1950)
Brief Fact Summary. The Plaintiff received certain real estate pursuant to a will of one Benjamin Potter, which was granted in fee simple but in case Plaintiff died without leaving lawful issue of her body then the estate was to be given over to the children of one William Potter in fee simple. Facts.
Synopsis of Rule of Law. The Plaintiff became seized of a estate tail in the provisions of the will, which by statute can be defeated where, as here, the Plaintiff conveyed by deed a fee simple interest to Defendant.
Benjamin Potter, deceased, by his will devised certain real estate to his wife, and upon her death, devised “all the same over to my granddaughter, Anna Naomi Coverdale (now Caccamo), in fee simple and absolutely forever; but in case the said Anna Naomi Coverdale should die without leaving lawful issue of her body begotten then and in that case I give, devise and bequeath all the same over unto” the children of William B. Potter in fee simple. Anna Naomi Coverdale, now married to Caccamo, purported to bar the estate tail devised to her in the will by use of a statute which provided that an ordinary deed purporting to convey a fee simple absolute “shall have the same effect and operation for barring all estates tail” as a common recovery (a type of common law suit). Then, on April 29, 1950, Plaintiff Caccamo sold the lands in question at public auction to Defendant Delema Banning, for the high bid of $2,025, of which Defendant paid to Plaintiff $405 and agreed to pay the balanc
e of $1,620 on June 3, 1950. On June 3, 1950, Plaintiff tendered a deed to Defendant which purported to convey a fee simple title to the lands in question, which Defendant refused to accept and refused to pay the balance of the purchase price based on the grounds that Plaintiff could not convey a fee simple and marketable title to the lands. Issue.
Did the Plaintiff have a fee tail in the lands under the devise in the will, and if so, did she properly bar the estate tail under the statute such that the tail is barred and the Plaintiff may convey the lands in fee simple with marketable title?