Mr. Justice Dunn
delivered the opinion of the court:
Sarah Walker died testate in 1883,' seized of the west quarter of lot 2, in block 32, known as No. 205 Lake street, and of the west quarter of' lot 3, in block 16, known as No. 103 South Water street, both in the original town of Chicago. The second clause of her will, which was executed September 25, 1876, was as follows: “I give, bequeath and devise all of my estate', real and personal, unto my son, Lester Curtis, during his lifetime, and authorize him to sell or exchange any or all of my real estate, and to invest the proceeds thereof as in his judgment he may think best; but should he die without children, then the estate, or so much of it as may remain after his reasonable expenses for living, etc., shall go to my nearest relatives, in such proportions as the law in such cases does provide.” Lester Curtis was the only heir of the testatrix. He was unmarried at the date of the will, but at the time of the death of the testatrix he was married and had two children. Immediately after his mother’s death he entered into possession of the premises and has ever since continued in possession of them. In February, 1908, he conveyed them to William A. Bond by deeds reciting the second clause of the will of Sarah Walker, that under it Lester Curtis took a life estate, and that he was also entitled, by descent, to a legal reversion of the fee pending the event of his dying without children, and the taking effect in possession, in that event, of the gift to the testatrix’s nearest relatives, and that it was the intention of the grantor to convey the life estate and the reversion in fee, so that the life estate should merge in the fee and be extinguished and prematurely destroyed and the grantee be vested at once with a legal estate in fee in possession, and that any contingent future interest in the nearest relatives should be destroyed. On February 13, 1908, William A. Bond executed a declaration of trust in favor of Lester Curtis for the premises at No. 103 South Water street in fee, and on February 24, 1908, together with his wife, by special warranty deed conveyed the premises at No. 205 Lake street to Lester Curtis. On February 26, 1908, Bond, claiming the fee as trustee, filed his application to have' the title to the premises at No. 103 South Water street registered under the Torrens act, and Curtis filed a separate application for the registration of the title to the premises at No. 205 Lake street. The two daughters of Curtis were made parties defendant, as were also various nieces and nephews of Sarah Walker, her next of kin. Mary Isabel Curtis, one of the daughters, assented to the petition, but the appellee Sally Palmer Curtis Moore, the other daughter, filed an answer, denying that Lester Curtis and Bond were the owners of the fee and alleging that she and her sister were the owners of the fee in remainder, subject to the life estate. The answers of the nieces and nephews alleged that next to the daughters they were the nearest relatives of Sarah Walker, and in case of the death of the two daughters without issue before the death of their father, such of the nieces and nephews as should survive Lester Curtis would be entitled to the fee. The causes were referred to an examiner, who found that the petitioners were the owners of the fee and entitled to have their titles registered, but upon objection the reports were disapproved and decrees were entered dismissing the applications, but without prejudice to the rights of the petitioners in an estate less than the fee. The appeals prosecuted separately to this court have been consolidated.
The principal question arising upon the construction of the second clause of Sarah Walker’s will is whether or not-there was a devise, by implication, of the remainder in fee to the children of Lester Curtis by reason of the gift over to the nearest relatives of Sarah Walker should he die without children. The appellees contend that under this clause the daughters of Lester Curtis took a vested remainder in fee, subject to his life estate, while the appellants contend that no remainder was given, by implication, to the children of Lester Curtis, but that the reversion in fee descended to Lester Curtis, as sole heir-at-law of his mother, pending the happening of the events upon which the estate given over to the nearest relatives depended, and that upon the conveyance of the life estate and the reversion to Bond the life estate merged in the reversion, and the contingent remainder to the nearest relatives was destroyed because of this termination of the particular estate before the happening of the event upon which the contingent remainder depended.
The object of the construction of wills is to ascertain the intention expressed by the testator. The intention sought is not that which by inference may be presumed to have existed in the mind of the testator, but that which by the words used in the will he has expressed. (Engelthaler v. Engelthaler, 196 Ill. 230; Williams v. Williams, 189 id. 300; Bingel v. Volz, 142 id. 214.) It will be presumed that it was the intention of the testator to dispose of his entire estate and not to die intestate as to any portion thereof. Any .reasonable construction will be adopted, consistent with the terms of the will, so as to dispose of the entire estate, but where no intention is shown by the will as to the disposition of a part of the testator’s property it must be regarded as intestate. (Minkler v. Simons, 172 Ill. 323; Craw v. Craw, 210 id. 246.) Devises by implication have been recognized, but they can only be given effect in cases of such clear necessity that from the will itself no reasonable doubt of the intention can exist. Probabilities as to the testator’s intentions cannot be weighed, but the implication must be so strong that an intention contrary to that imputed to the testator cannot be supposed to have existed in his mind. (Barlow v. Barnard, 51 N. J. Eq. 620; Brown v. Quintard, 177 N. Y. 75.) It must be such as to leave no hesitation in the mind of the court and permit no other reasonable inference. (Connor v. Gardner, 230 Ill. 258.) Moreover, a gift by implication must be founded upon some expression in the will. It cannot be inferred from an absolute silence on the subject. In re Reinhardt, 74 Cal. 365; Nickerson v. Bowly, 8 Metc. 424; O’Hearn v. O’Hearn, 114 Wis. 428.
The estate given to Lester Curtis by the will is expressly limited to his life. Should he die without children the remainder is disposed of. The will says nothing as to the disposition of the remainder should Lester Curtis have children. Appellees contend that the gift over in default of children implies a gift to the children should any be born. This question has arisen in the English courts, and a series of decisions has established the rule there that a devise to one for life with a remainder over if he dies without issue, does not, of itself, give an estate, by implication, to his issue. (Greene v. Ward, 1 Russ. 262; Sparks v. Restal, 24 Beav. 218; Ranelagh v. Ranelagh, 12 id. 200; Neighbour v. Thurlow, 28 id. 33; In re Hayton’s Trusts, 4 N. R. 55; Seymour v. Kilbee, 3 L. R. Ir. 33; In re Rawlins’ Trusts, 45 Ch. Div. 299; Scale v. Rawlins, L. R. (1892,) A. C. 342.) Such is stated to be the rule of law in Page on Wills, 554, and 2 Redfield on Wills, (3d ed.) 204. In the case of Neighbour v. Thurlow, supra, it was said: “The court will give the most liberal construction to the words of a testator in order to carry out his intention, but it is contrary to every principle to introduce words into a distinct bequest in order to make the will more reasonable or to supply a gift which is not to be found in the will. It is settled that where there is a gift to A for life and if he die without leaving issue, to B, it does not create an implied gift to the children of A. Though it is natural enough to suppose that some words may have been omitted, still the answer is that the testator has not inserted them and the court cannot do so for them.” In Seymour v. Kilbee, supra, it was said that “no such gift [to children] can be implied from the gift over only, and it could only be supported by some other matters existing in the will raising an inference in favor of the issue. I can find nothing of the kind in this will. It does not contain a single word favoring the implication of an interest in the issue beyond the mere gifts over.” Where, in a will, there is a gift to A for life with a gift over “on the death of A without leaving children,” those words are not, by themselves, without assistance from other parts of the will, sufficient to create a gift, by implication, to the children. (In re Rawlins’ Trusts, supra.) The same principle was followed in the cases of Brown v. Quintará, supra, and Barlow v. Barnard, supra. In the former case the testator directed the division of his residuary estate into four parts, one of which was to be given to one of his children, with certain deductions on account of advancements. The testator had four children but no disposition was made of the other three parts of the residuary estate.- The court held that there was not a devise by implication, citing a number of cases illustrating the inflexibility of the rule that to uphold a devise by implication there must be so strong a probability of the testator’s intention that the contrary cannot be supposed.
Opposed to the English decisions above cited is the case of Ex parte Rogers, 2 Madd. 49, in deciding which the vice-chancellor refers to Crowder v. Cowles, 2 Ves. Jr. 449, Wainwright v. Wainwright, 3 id. 558, and Harman v. Dickenson, 1 Bro. C. C. 91. The decision in Ex parte Rogers was, however, overruled by the court of appeals, and its authority is denied in Dowling v. Dowling, L. R. 1 Ch. App. 612, reversing the order of the vice-chancellor in L. R. 1 Eq. 441. It was disregarded in the cases heretofore cited, all of which were decided subsequent to it.
We are referred to a number of cases as supporting the claim of appellees that a remainder is devised to the children of Tester Curtis- by implication, and it is contended that the decisions of all the American courts of last resort in which a like question was involved sustain appellees’ position. The cases specially pressed upon our attention are Anderson v. Messinger, 77 C. C. A. 179, Wetter v. Hydraulic Cotton Press Co. 75 Ga. 540, Shaw v. Hoard, 18 Ohio St. 227, Holton v. White, 23 N. J. T. (3 Zabr.) 330, and Carr v. Green, 2 McCord’s L. (S. C.) 75. In each one of the first three of the cases above cited the language of the will which devises the property to the first taker imports a devise in fee simple and not a life estate. It is expressly so stated in the opinion in Anderson v. Messinger. In that case, after the devise of the fee to the testator’s two sons, the qualifying clause provides: “If either of my sons die without lineal descendants, the one surviving shall take his estate' above bequeathed, and if the survivor die without lineal descendants” thén the devise over follows. This devise of a fee, with the provision that upon the'death of the devisee without lineal descendants or without issue the property shall go to another, created a fee, variously called a qualified, conditional, base or determinable fee, in the first devisee, with an executory devise in favor of those who are to take upon the determination of such base fee by the happening of t'he condition by which it is limited. (Friedman v. Steiner, 107 Ill. 125; Smith v. Kimball, 153 id. 368; Fifer v. Allen, 228 id. 507.) If the event marked out as a boundary to the time of the continuance of the estate becomes impossible, the estate then ceases to be determinable and changes into a single and absolute fee, but until that time the estate is in the grantee. The case of Anderson v. Messinger arose in the State of Ohio, where the effect of such a devise has been held by the Supreme Court to be the same as in this State. (Piatt v. Sinton, 37 Ohio St. 353; Niles v. Gray, 12 id. 320; Collins v. Collins, 40 id. 353.) In this case there was an express devise of the fee determinable upon the happening of the death of both of the sons without issue. There was therefore no room for implication.
The court to a large extent founded its decision upon another of the cases cited by appellees,—Shaw v. Hoard,supra. In that case the language of the will was as follows : “I give and bequeath unto my said wife and daughter all the, real estate of which I may be seized at the time of rny death, to each one-half. On the death of either my wife or daughter, then the survivor shall have the property left them by me; and if both die without leaving any heirs of their body, then and in that case said property shall be given to my wife’s brother, David Campbell.” The first sentence would give a fee to the wife and daughter, to each one-half, if it were not controlled by the first clause of the second sentence, which reduces the estate devised by the first to a life estate in the one dying first; but there is no limitation on the estate given to the survivor, and she therefore took a fee determinable upon the death of both the wife and daughter without issue. The wife died leaving a daughter by a subsequent marriage. Thereupon the daughter, the other devisee, became the owner in fee of all the property, and upon her death the daughter of the second marriage, her half-sister and only heir, inherited the estate. The Supreme Court of Ohio arrived at the same result, but it was done by disregarding the express devise of the fee and implying a gift to the issue as a purchaser, thus reducing the fee to a life estate and giving a remainder to the daughter of the wife by implication. This case is inconsistent with the earlier case of Niles v. Gray, 12 Ohio St. 320, and is, in effect, overruled by the later cases of Carter v. Reddish, 32 Ohio St. 1, Piatt v. Sinton, 37 id. 353, and Collins v. Collins, 40 id. 353.
In Piatt v. Sinton, just cited, the devise was to Lucinda Frances Piatt of all of. the testator’s property of every description, and it was further provided that in case she should die without leaving any legitimate heir of her body the property should go to certain nephews and nieces of the testator. It was held that Lucinda Frances Piatt took all the estate of the testator, subject to be defeated upon the happening of the contingency named in the will, and that until such contingency happened the fee was vested in her and her grantees.
In the case of Wetter v. Hydraulic Cotton Press Co. supra, the devise was to the testatrix’s daughter, “to have and to hold .the same and her heirs forever.” A subsequent clause provided that if the daughter should depart this life leaving no issue or lineal heirs, the estate should go over. This, at common law, was a devise to the daughter in fee simple, and the subsequent clause merely added a condition upon which the estate should be terminated and the property pass to the subsequent takers. The court, however, disregarding the express devise of the fee, held that there was a gift, by implication, to the issue as purchasers, and that the daughter took only a life estate, with the remainder to her children in fee.
We cannot follow these cases or regard them as authority, In each there is an express devise of the fee. In each a subsequent clause imposes a condition, upon the happening of which the estate in fee is to terminate and another is to take its place. This we have always held to constitute a determinable fee, subject to an executory devise to the subsequent takers. It leaves no room for implication. The fact that the event.upon which the estate is to terminate is the death, without issue, of the first taker cannot affect the estate granted or give the issue any interest in the devise.
The case of Holton v. White, supra, appears to support the appellees’ contention, though the construction there was not based entirely on the gift over, but to some extent on the other provisions of the will. This case does not go into the authorities, and the court contents itself with a very brief statement of its conclusions.
In Beilstein v. Beilstein, 194 Pa. 152, it is held that in a devise over in case of the death of a devisee for life “without leaving a family,” there is a necessary implication, in the contingency of her leaving a family, that the estate is to go to them. It is said that “this is practically assumed, without question, in the long line of cases on the subject which are carefully reviewed in Seybert v. Hibbert, 5 Pa. Superior Ct. 537.” This is true. At a very early period this principle was assumed in Pennsylvania without discussion, and the courts have followed it down to the latest decisions, merely referring to their prior adjudications.
In Lytle v. Beveridge, 58 N. Y. 592, the court, after distinguishing the words used there, “legitimate heirs,” as not being the equivalent of “issue” or “issue of the body,” as imputing an indefinite limitation, held that their use did not enlarge the life estate given to the first taker into a fee, but that such estate was limited to a life estate, and that upon the happening of the contingency the estate did not descend as an inheritance, but the remainder over took effect. It is true that in argument the court said that the law would imply a devise to the children of the first taker if any had survived him; but no such decision was made or was involved in the case, and the implication seems less necessary there than in the later case of Brown v. Quintará, supra, where the court held there was no devise by implication.
The case of Carr v. Green, supra, sustains appellees’ contention, but that case is not, and never was, the acknowledged law in South Carolina. It was decided by the court of appeals in equity in May, 1822. In May, 1821, the court of appeals at law, having this same will before it for consideration, had arrived at a precisely opposite result. (Carr v. Jeannerett, 2 McCord’s L. 66.) Thus the rights of the parties depended upon the court in which the proceedings for their determination were brought. In 1824 these two courts were abolished and a court of appeals was established having final appellate jurisdiction in all cases. In 1825 a case involving the same will as the two former cases was brought to the court of appeals. The reasoning of the former cases, and the decisions upon which they were based, were carefully reviewed, and the court of appeals, after an elaborate examination of the authorities and consideration of the principles involved, held that under the devise to the testator’s grand-sons with a devise over in default of issue, there was no devise to the issue by implication, and that an estate is never implied to issue as pu'irchasers. (Carr v. Porter, 1 McCord’s Ch. 60.) This principle has since been recognized as the law by the courts of South Carolina. In Manigault v. Deas, Bailey’s Eq. 298, it is held that issue cannot take as purchasers, by implication, from a valid limitation over in the event of death without leaving issue, where there is no direct gift to the issue. So, also, it is held in McLure v. Young, 3 Rich. Eq. 559, and Addison v. Addison, 9 id. 58.
In this State the cases of King v. King, 168 Ill. 273, and Orr v. Yates, 209 id. 222, are relied upon by appellees. In the former case the testator’s scheme of distribution involved the division.of his estate into five equal parts and the giving of one portion to each living child and one portion to the representatives of each deceased child. A trust was created as to one share to be held for a grand-son of the testator and his family, with a gift over in case of the death of the grand-son’s wife and of his leaving no children surviving him. It was the clear intention of the testator, in setting apart the grand-son’s portion to him and his family, to provide for the children also, and that if any part of the property held by the trustees remained after the death of the grand-son and his wife it should go to the children. It was held that such was the plain intention of the testator on the face of the will, and the court refers to the case of Kinsella v. Caffrey, 11 Irish Ch. 154, in which case, also, the remainder was sustained, and in which the rule of law was stated to be, that “if there is a bequest to a parent for life, and if he die without having or leaving children, to B, if the parent dies leaving children they are not entitled by implication.” What was said in the case of Orr v. Yates as to the succession of the issue of Mary Maria Yates was beyond the question under consideration, and the question where the fee would go in case of her death leaving issue was expressly left undetermined.
In the case of Stisser v. Stisser, 235 Ill. 207, the testator, after devising a life estate in separate tracts of land to each of three children, directed that in case of the death of either without issue the land should revert equally to the legal heirs of the other children. He then added the statement, “it being the will of the testator that the title to the properties under sections 4, 5 and 6 herein shall rest and abide in the hands of the legal heirs of the lawful heirs of the testator hereto.” The context thus clearly indicated the intention of the testator that the title should pass to the issue of the children. A devise for life with a gift over on the death of the life tenant without issue is not, of itself, sufficient to create a gift, by implication, to the children of the life tenant. Such implication can only arise when supported by some other matter appearing in the will raising an inference in favor of the children.
When we undertake by construction to arrive at Mrs. Walker’s intention in regard to the disposition of her property at her son’s death in case he should happen to leave children, we are left entirely without aid from the will itself. It is a case for which she has not provided,—whether unintentionally or purposely we have no means of determining. We may speculate or conjecture as to what may have been in her mind, but we can find no indication in the will itself to enable us to say that she intended her son’s children to take the remainder. It is clear that the testatrix intended her son to have the use and benefit of the property during his lifetime, with a certain power of disposition. It is clear that she intended, if he died without children, that her nearest relatives at the time of his death should have what was left of the property. It is equally clehr that it is impossible to determine her intention as to the disposition of the property if he had children. She had confidence in him, and did not refuse to give him the fee and limit his interest to a life estate because she feared he would squander the property, for she made him executor of her will without bond, and authorized him alone, and not in conjunction with his co-executor, to sell the real estate. She is presumed to have known that her son was her only heir, and that, as such, the property would all descend to him after the termination of the life estate unless she disposed of it by her will. She may have believed that he would use the property for the benefit of his children, should he have any. She knew the property would naturally descend to them as his heirs. The children yet to be born might be deserving or not deserving. Circumstances as developed by the future might make an unequal division of the property among the children just and proper or a diversion of a part of it in another' direction desirable. It may be that upon a consideration of all the circumstances of the situation the testatrix wished to leave to the discretion of her son the disposition of her property, except in the one event of his dying without children. The will shows that in such contingency she wished to control the disposition of such part of the property as might remain after his reasonable expenses for living were satisfied, and she did so by directing it to go to her nearest relatives. There is no word in the will indicating a desire to interfere with the statutory disposition of the property in the alternative of her son’s death having children. She may have desired him to have the use of the property during his life and in case of his having children the power to dispose of it as he might in his own discretion think best for the interest of his family, but have also wished the property, in case he had no children, to go to her relatives. It is possible that the testatrix, in case of her son’s death having children, desired them to take the property directly from her, but the will expresses no such wish. It is equally consistent with the will that she desired her son to inherit the fee in such event. Being content with the statutory rule of descent, she made no provision to the contrary.
It may be said that it will be presumed that the testatrix intended to dispose of her entire estate, and that the will should be so construed unless this presumption is rebutted by its provisions. It is true that any reasonable construction of a will consistent with its terms will be adopted so as to give it effect to dispose of all the testator’s property and not to leave a part intestate, but this rule cannot be carried to the extent of inserting provisions in the will which the testator failed to insert. Clear words are necessary to disinherit an heir, and even where the intention is clearly manifested the heir will take unless the testator devises the property to someone else. (Parsons v. Millar, 189 Ill. 107; Lawrence v. Smith, 163 id. 149.) The court cannot presume a will for a testatrix on mere speculation as to what might have been her intention. It is the intention of the testatrix only so far as she has communicated that intention by her will which is to govern the descent of her estate. The omission to make any gift in the one case may have been the intention of the testator as’ fully as the gift over in the alternative.
The limitation of the estate to the nearest relatives of the testatrix should Lester Curtis die without children is a contingent remainder. Since Lester Curtis was himself the nearest relative of the testatrix at the time of her death, the devise comes within the rule that where there is a gift to one for life with remainder to the testator’s next of- kin, and the life tenant is the sole next of kin at the death of the testator, the remainder will be considered as given to the persons answering the description at the termination of the estate for life. (Johnson v. Askey, 190 Ill. 58.) Both the event upon which the estate in remainder is to come into possession, the death without children of Lester Curtis, and the persons who may at that time be entitled, as the nearest relatives of Sarah Walker, to take the estate, are uncertain and the remainder is therefore contingent. Until its vesting, or the determination of the impossibility of its vesting, the reversion in fee descended to Lester Curtis as the heir. Peterson v. Jackson, 196 Ill. 40; Harrison v. Weatherby, 180 id. 418; Pinkney v. Weaver, 216 id. 185.
It is contended by appellants that by the conveyance to William A. Bond of the life estate devised to Lester Curtis and of the remainder in fee inherited by him, the life estate became merged in the fee and the contingent remainder to the nearest relatives was destroyed. The effect of a conveyance of his estate by a life tenant to the remainder-man is to cause the destruction of the particular estate, which becomes merged in the fee. (Field v. Peeples, 180 Ill. 376; 2 Blackstone’s Com. 177; 4 Kent’s Com. 100.) Every remainder requires a particular estate to support it, and a contingent remainder must vest during the continuance of the particular estate or eo instanti that it determines. (2 Blackstone’s Com. 168.) If the particular estate comes to' an end before the event upon the happening of which the contingent remainder is to take effect occurs, the remainder is defeated; and this is so whether the preceding estate reaches its natural termination or is brought to a premature end by merger, forfeiture or otherwise. “Unless a contingent remainder becomes vested on or before the determination of the preceding vested estate it can never come into possession,—it has perished. It makes no difference whether the preceding estates have ended by reaching the limit originally imposed upon them, or whether they have been cut short by merger, forfeiture or otherwise.—Gray on Perpetuities, sec. 10.” (Madison v. Larmon, 170 Ill. 65.) “Contingent remainders may be defeated by destroying or determining the particular estate upon which they depend, before the contingency happens whereby they become vested. Therefore, where there is tenant for life with divers remainders in contingency, he may, not only by his death, but by alienation, surrender or other methods, destroy and determine his own life estate before any of those remainders vest, the consequence of which is that he utterly defeats them all.” (2 Blackstone’s Com. 171.) So a tenant for life, with subsequent contingent remainders, might make a tortious conveyance by deed of feoffment with livery of seizin, and thus forfeit his life estate for the express purpose of destroying the contingent remainders, and upon re-conveyance of the tortious title would hold it free from the contingent remainders. It was to prevent contingent remainders from being defeated by such premature determination or destruction of the preceding estate that the device was invented of interposing trustees to preserve contingent remainders having a legal estate to support the remainders until the happening of the contingency. When the estate for life and the next vested estate in remainder or reversion meet in the same person, notwithstanding intervening contingent remainders, the particular estate will merge in the reversion or remainder and the contingent remainders will be destroyed. A qualification of this rule exists where the creation of the particular estate and the remainder or reversion occur at the same time and by the same instrument.. Fearne on Contingent Remainders, secs. 316-324; 3 Preston on Conveyancing, (3d ed.) 399; 2 Washburn on Real Property, (6th ed.) 553, pars. 1597, 1598; Williams on Real Property, 233.
In Egerton v. Messey, 3 C. B. (N. S.) 338, the devise was to Eunice Highfield for life, remainder, in default of issue of Eunice, to Peter Highfield in fee, residuary devise to Eunice in fee. After the death of the testatrix, Eunice, by lease and release, conveyed to Peter Jackson in fee, and after her death without issue the question of title arose between those claiming under Peter Jackson and those claiming under Peter Highfield. It was held that under the residuary devise, the reversion in fee went to Eunice High-field; that the life estate did not merge in it so long as both remained in the devisee, but that upon her conveyance, of both estates to Peter Jackson the life estate merged in the fee and that the contingent remainder of Peter High-field was destroyed. The same question arose in Bennett v. Morris, 5 Rawle, 8, and a similar question in Craig v. Warner, 5 Mackey, 460, and were similarly decided. In Faber v. Police, 10 Rich. 376, and McElwee v. Wheeler, id. 392, the devise was for life with contingent remainders over, the life tenant being the sole heir of the testator. The devisees made deeds of feoffment with livery of seizin, and their grantees re-conveyed to the grantors. It was held that the common law not having been modified in South Carolina at the time, the effect of the deeds was to destroy the life estates and perfect the absolute title in the life tenants. Redfern v. Middleton, 1 Rice’s L. 459.
The case of Fraser v. Supervisors of Peoria County, 74 Ill. 282, is cited as sustaining the proposition that the court will not permit a contingent remainder to be destroyed contrary to the will of a testator or grantor. A deed was made to an unmarried woman and the heirs of her body. She re-conveyed before having issue, and it was held that the contingent remainder to her children was not thereby destroyed. The question there discussed was the effect of section 6 of the Statute of Conveyances, which modifies estates tail so as to give the first taker a life estate with the remainder in fee simple absolute to the next. The doctrine of merger, which has just been considered, did not apply to estates tail under the statute de donis, which were an exception to the rule. Such estates were protected and preserved from merger by the operation and construction given to the statute de donis for the express purpose of preventing the particular tenant from thus barring and destroying the estate tail. (2 Blackstone’s Com. 177, 178.) It was held in Fraser v. Supervisors of Peoria County that the General Assembly did not intend to restore the common law as it stood before the adoption of the statute de donis and leave the donee with power to alien the estate and repurchase, and thus cut off both the remainder and reversion, but did intend that the person who should first take from the tenant in tail should take a fee simple absolute, without any power in the donee to dock the remainder or any reversion in the donor except on failure of issue. The case deals with an estate, tail only under our statute and is a case of statutory construction only, having nothing to do with the general question of the destruction of contingent remainders.
Our conclusion is that the language of the will does not warrant the implication of a devise of the remainder to the children of Tester Curtis; that the reversion descended to Lester Curtis, as heir-at-law; that by his deed to William A. Bond the life estate merged in the reversion and the contingent remainder to the nearest relatives of the testatrix was destroyed, and that the appellants hold the title to the premises involved in the respective causes in fee simple.
The decrees are reversed and the causes remanded for further proceedings in accordance with this opinion.
Reversed and remanded.