Westerdale v. Grossman, No. 3-99-0619

3rd District, 3 April 2000

JUSTICE BRESLIN delivered the opinion of the court:

Plaintiff Wallace Westerdale sought to partition his life estate from those interests held by his sisters, defendants SarahGrace Tolliver and Ruth Carolyn Grossman (collectively, the sisters). The trial court agreed with Ruth's contention that thecontingent nature of the remainder interest in Wallace's life estate prevented the partitioning of the land and granted hermotion to dismiss. We reverse and hold that a tenant in common, as the holder of a life estate, has an absolute right to forcea partition between himself and his co-tenants even when the petitioner's remainder in his life estate is contingent.

FACTS

Loretta Westerdale died testate in 1978. Loretta's will divided her real estate into three shares for each of her three children,Wallace, Sarah and Ruth. The sisters each received a one-third share of their mother's real estate in fee. Their brother,Wallace, received a life estate in the remaining one-third. A contingent remainder in Wallace's one-third interest was givento any surviving children of Wallace except Victoria Westerdale. Victoria was Wallace's only child at the time this actionwas filed. It was conceded by the parties that Wallace could have more children before his death.

Should Wallace have no children other than Victoria, the will provides that the remainder of his life estate is to go to hissisters if they survive him and, if not, to the estates of Wallace, Ruth and Sarah.

In 1998, Wallace filed a complaint for partition. The complaint named the sisters and the legal representative of theirmother's estate as defendants, along with other unknown owners and parties, due to the contingent nature of the remainder.Ruth filed a motion to dismiss claiming that because Wallace could still have children, partition could not be accomplishedas it would be impossible for a court to determine the share that each child of Wallace would take. The trial court agreed,finding that Wallace lacked standing to file a partition action. Wallace filed a motion to reconsider, and the court denied themotion. Wallace appeals.

ANALYSIS

The sole issue on appeal is whether the trial court erred when it held that Wallace, as a life tenant, was barred from pursuinga partition action because the remainder interest in his life estate is contingent.

A motion to dismiss based upon a lack of standing is generally treated as an affirmative defense under section 2-619 of theCode of Civil Procedure (735 ILCS 5/2-619 (West 1998)) and is reviewed de novo. Department of Public Aid ex rel.Marshall v. Ringo, 303 Ill. App. 3d 250, 706 N.E.2d 1047 (1999). We will treat it as such.

On appeal, Wallace argues that a tenant in common has a right to partition by statute. Section 17-101 of the Code of CivilProcedure (Code) provides that "[w]hen lands, tenements or hereditaments are held in joint tenancy or tenancy in common*** any one or more of the persons interested therein may compel a partition thereof." 735 ILCS 5/17-101 (West 1998).While the creation of a joint tenancy requires the four unities of time, title, interest and possession, a tenancy in commonneeds only the unity of possession to exist, in that each co-tenant has an equal right of possession and enjoyment withrespect to the entire property. R. Cunningham, W. Stoebuck & D. Whitman, The Law of Property