Dempsey v. Dempsey

795 N.E.2d 996 (2003)

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Nature of the Case

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Facts

Ps and D are the only surviving descendants of David. After David's death, both parties petitioned the circuit court to determine their interests in certain real property devised in his father Ralph Dempsey's will. Ralph died in 1956, leaving a will that provided in part: I give and devise all the real estate owned by me (240 acres) as follows: (a) A life estate to my wife, Gertrude. After the death of Gertrude a joint life estate to my son, David and his wife, Evangeline, and for the lifetime of the survivor thereof. The remainder interest I give and devise to the heirs of the body of my son, David Dempsey, share and share alike, and in fee simple. When Ralph died, David had three children: Ian, Karen, and David Kevin. Gertrude died in 1961, leaving David and Evangeline Dempsey with a life estate in the property. David Kevin died in 1981 and was survived by Ps, his two adopted children. Evangeline Dempsey died in 1984. D's sister Karen died in 1998 and devised her estate to D. David died in 1999, prompting this dispute over the will. Ps and D are the only surviving interested parties. The circuit court found that the conveyance created a contingent remainder in David's heirs, which vested upon his death. Defendant appeals, arguing that the remainder vested upon Ralph's death and that he is entitled to a larger share of the estate.