By the statutes of Illinois in force when the will of Romeo Lewis was made and took effect, it was provided that 'in cases where, by the common law, any person or persons might hereafter become seised in fee tail of any lands, tenements, or hereditaments, by virtue of any devise, gift, grant, or other conveyance hereafter to be made, or by any other means whatsoever, such person or persons, instead of being or becoming seised thereof in fee tail, shall be deemed and adjudged to be and become seised thereof for his or her natural life only, and the remainder shall pass in fee simple absolute to the person or persons to whom the estate tail would on the death of the first grantee, devisee, or donee in tail first pass, according to the course of the common law, by virtue of such devise, grant, or conveyance.' Act Jan. 31, 1827, (Rev. Laws Ill. 1833, pp. 129, 131, § 6;) Rev. St. 1845, c. 24, § 6; Rev. St. 1874, c. 30, § 6. The court below held (43 Fed. Rep. 854) that Mrs. Lewis, under the will of her husband, would have taken, at common law, only an estate in fee tail; that is, an estate 'confined in its descent to the posterity of some individual, so as to cease upon failure of such posterity;' citing Burt. Real Prop. p. 4. After observing, in the words of the same author, that, upon a devise to a person and his issue or children, the construction varies according to the circumstances, and that, if the party have issue or children at the time when the devise is made, they will take estates for their lives, jointly with their parent, but if he had no issue at that time he takes an estate tail, the court said that under the above statute Mrs. Lewis took only an estate for her natural life, and at her death, in default of heirs of her body, the heirs at law of the testator took the estate in fee. But, in view of the admitted facts, it was held that the defendants were protected by the statute of Illinois, prescribing the periods within which actions for the recovery of lands may be brought.
Much of the elaborate argument submitted by counsel is devoted to an inquiry as to the nature of the estate that Mrs. Lewis took under the will of her husband, the plaintiffs insisting that the court below correctly interpreted the will of the testator in connection with the statute. The defendants insist that the devise to Mrs. Lewis and to the heirs of her body was intended to be a devise to her and to the children of herself and the testator, as a class of persons to take at the death of the testator; and that she, as the only survivor, at his death, of that class, took the whole estate absolutely. The defendants further insist that, even if the estate did not wholly vest at the death of the testator in Mrs. Lewis, as the survivor of the class of persons who were the declared objects of his bounty, the fee did not remain in abeyance until her death, but vested, at his death, in those who were then his heirs at law, although such estate was liable to be divested on the birth of an heir to the body of the life tenant.
These questions have been discussed by counsel with marked ability. But it will not be necessary to pass upon them, if, as is contended, these actions, under any construction of the will, are barred by the statute of limitation of Illinois. To this question of limitation we will therefore direct our attention.