Daily Development for February 1, 2001

COTENANCY; PARTITION; LIFE ESTATES: A tenant in common holding a life estate in common with cotenants holding fee interests has an absolute right to force a partition between himself and his cotenants as to the life estate, even where the holders of the remainder interest following the petitioner's life estate cannot yet be ascertained.

Westerdale v. Grossman 728 N.E. 2d 67 (Ill. App. 3 Dist. 2000) appeal den'd 739 N.E. 2d 037 (Ill. 2000)

The mother of three children died leaving each of her two daughters a onethird fee interest in her real estate and leaving her son a onethird life estate interest with a contingent remainder to any surviving children of the son except his thenonly child Victoria. If the son has no children, other than Victoria, then the remainder would go to his sisters if they survived him.

The son brought an action for partition of his life estate from the estate of his sisters. The trial court, relying on Whittacker v. Porter, 151 N.E. 905 (Ill. 1926), which held that no partition may occur when a life estate exists and the class of remaindermen is not closed, denied partition. The court found that, due to the contingent nature of the remainder, it could not determine the share of each of the son?s unascertained children. The son, therefore, lacked standing to file a partition action.

The son appealed. The son pointed out that he was not petitioning to partition the remainder portion of the estate, but only the life estate, which he owned outright. He noted that in Whittaker the petitioner had attempted to partition both the life estate and the associated remainder, and therefore the case was distinguishable. The appeals court agreed. Under Illinois law a tenant in common has an absolute right to partition. See In re marriage of Clearman, 407 N.E. 2d 189 (1980). Such right will be recognized in favor of a life tenant as long as the goal is not to circumvent public policy or established principles of law. Thus, the Appellate Court held that the life estate will remain intact and may be partitioned from the fee estates held by his sisters.

Comment 1: Since only the life tenancy is partitioned, the remainder interest is still in tenancy in common. Does this have any impact on the life tenant's duties to protect against waste of the remainder interest? The editor speculates that the life tenant's use of his own land might be affected by such a duty, which likely goes beyond the general duty to avoid committing a nuisance.

Comment 2: Notwithstanding the little problem discussed in Comment 1, the editor concurs with this practical accommodation of an uncomfortable situation.

Comment 3: But what you really want to know is why was Victoria left out right? The court, not being prone to gossip mongering (unlike DIRT) doesn't say. Was she otherwise provided for? Was she disinherited for joining the Hare Krishnas? The answer lays not in the reported case.

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