Story Case

Mr. John Marlow became owner of a farm near Cairo, Illinois, by devise in his father's will. In July, 1915, he decided to dispose of his land and return to the city. Marlow opened negotiations with Mr. Howard Timothy, who asked to see the will by which Mr. Marlow had inherited the estate. He found that the provision read "I devise my farm in fee simple to John Marlow, but I want him to keep it in the family." Mr. Timothy was not a member of the family, and hence hesitated to take the risk of putting his money into an estate which he might be obliged to surrender. Mr. Marlow answered Mr. Timothy that he had consulted a lawyer who advised that Marlow could sell, and that the restriction was not binding. Was the lawyer right?

Ruling Court Case. Smith Vs. Kimball, Volume 153, Illinois Reports, Page 368

Sarah Jane Dunstan received land from her mother, whose will stipulated that, should Sarah Jane die leaving no heirs, the land should go to her aunts. Sarah Jane sold the land to Smith, the plaintiff in the case, who contracted to sell the same land to Kimball. Kimball agreed to take the property, should the abstract of title to be furnished within twenty days, show a good fee simple title in Smith. After Kimball read the abstract, he refused to take the property, on the ground that a fee simple did not exist.

The question in dispute arises upon the construction of the will made by Sarah Jane's mother. The question is whether Mrs. Dunstan took a fee simple estate or took one subject to being cut off if she had no children, so that the ownership would pass to her aunts, or whether she took simply an estate during her life.

Mr. Justice Magruder, speaking for the court, held in substance as follows: "In this state, it is not necessary to use the word 'heirs' to pass the fee simple title. Any words showing this intention will pass such an estate. The intention of the donor will be carried out as determined from this word. In this case, Mrs. Dunstan was not given an absolute fee simple estate, but one qualified by the fact that if she died leaving no children the absolute ownership was to pass to her aunts. Therefore, Smith had not an absolute fee simple interest in the property as he contracted to convey to Kimball, and the case should be decided in favor of Kimball."

Ruling Law. Story Case Answer

An estate in fee simple is the largest possible estate that can be devised or conveyed in any property. A fee simple estate cannot be withdrawn from commerce, that is, it cannot be given as a fee simple and at the same time prevented from being sold by the owner of the fee. In the Story Case, the lawyer was right. The fee simple estate in its very nature carries with it the right of sale, the right of alienation. Mr. Timothy can buy this farm of Mr. Marlow without fear, for Mr. Marlow, being owner in fee simple, had unlimited power of alienation. This case should be carefully distinguished from the Ruling Court Case, where only a limited fee was given to Sarah Jane.