Citation. 22 Ill.45 Del. 394, 6 Terry 394, 75 A.2d 222 (Super. Ct. 1950)
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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.
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.
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?
Yes. Judgment for Plaintiff for $1,620 plus costs.
The Plaintiff argued that the language of the devise which conveys the lands to Plaintiff in fee simple but provides that if Plaintiff should die without lawful issue then the lands should be given over to another is language which creates an estate tail. The Defendant claimed that the language would create a fee simple subject to defeat if the Plaintiff died without lineal descendants. The Court found that the language created an estate tail.
The effect of the Plaintiff’s actions in conveying a deed which purported to be in fee simple to Defendant was to bar the estate tail. The Court based this decision on a statute which provides that whenever the holder of an estate tail conveys what is purported to be a fee simple, then the estate tail is effectively barred. The result of this is that the Plaintiff could have conveyed marketable title to Defendant.
The Court found that the language of the devise was that the gift over to Potter’s children would occur only in the failure of issue of Plaintiff, and as such was a definite contingency. Thus, the estate was a fee tail with a vested remainder of reversion to the collateral heirs of the testator (Potter’s children). However, the Plaintiff, by way of conveying the lands away in a deed purporting to be in fee simple and then having the lands conveyed back to her, had become seized, by statute, of a fee simple and good marketable title.
The Defendant could have received an estate in fee simple from the Plaintiff on June 3, 1950, and as such, judgment must be entered for the Plaintiff in the amount of $1,620.
Note that the effect of the statute is to provide protection to the buyer of property. Suppose the Court held that the estate tail was not defeated: in that case the Plaintiff could die many years after the 1950 sale and Defendant could be divested of her interest by the children of Potter. The result of the case is to favor certainty in land transact