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Property Law Keyed to Kurtz
Dempsey v. Dempsey
Citation:342 Ill. App. 3d 969, 795 N.E.2d 996
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The late Ralph Dempsey died in 1956. His will left a life estate to his widow, followed by a life estate to his son, David Dempsey, and then a remainder interest to “the heirs of the body of my son, David Dempsey, share and share alike, and in fee simple.” When Ralph Dempsey died, David had three children, one of them being the defendant. When Ralph’s widow died, David received a life estate to the property. One of David’s children subsequently died, leaving behind two children, the plaintiffs. One of David’s other children, and sister to the defendant, also died and left her estate to the defendant. When David died in 1999 there was a dispute over the will.
The defendant argued that Ralph Dempsey’s will created a fee tail estate to David’s children. Under Illinois law, an attempt to create a fee tail would be converted into a life estate. The defendant argued that Ralph Dempsey’s will gave a life estate in David which vested in David’s living children upon Ralph’s death. Therefore, each of David’s children would have received a vested remainder in 1/3 of the property each. As a result, the defendant’s sister would have had a vested remainder interest to transfer to him, and the defendant would have had an interest in two-thirds of the property.
The plaintiffs argued that the remainder interests created by the will were contingent, and vested upon the death of David Dempsey. Therefore, the plaintiffs argued that because the defendant’s sister predeceased David, she did not have a vested remainder interest to convey to the defendant, meaning that the trial court correctly divided the property.
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