Since 1915, we think, the Illinois cases have uniformly held that such a provision as that under discussion does not prevent the remainder from vesting on the death of the testator but rather fixes the conditions upon which divestiture will occur and the executory gift over, i.e., the gift to the descendants of the deceased remainderman — take effect. Remmers v. Remmers, 280 Ill. 93, 117 N.E. 474; McBride v. Clemons, 294 Ill. 251, 128 N.E. 383; Warrington v. Chester, 294 Ill. 524, 128 N.E. 549; Weberpals v. Jenny, 300 Ill. 145, 133 N.E. 62; Boye v. Boye, 300 Ill. 508, 133 N.E. 382; People v. Allen, 313 Ill. 156, 144 N.E. 800; Smith v. Shepard, 370 Ill. 491, 19 N.E.2d 368. See also Hodam v. Jordan, D.C., 82 F. Supp. 183.

And, more specifically, a similar clause has been passed on by the Illinois Supreme Court in at least three cases, it being held on each occasion, that the language in question did not detract from the vested character of the remainders. Knight v. Pottgieser, 176 Ill. 368, 52 N.E. 934; Warrington v. Chester, 294 Ill. 524, 128 N.E. 549; Smith v. Shepard, 370 Ill. 491, 19 N.E.2d 368. One case cited in the defendants' briefs to the contrary is expressly predicated upon New York law.

This finding was correct. ( Storkan v. Ziska, 406 Ill. 259; Smith v. Shepard, 370 Ill. 491.) The critical consideration is the effect of the language of divestiture employed by the will. Does the reference to the death of Arthur contemplate only his death at a time prior to the testator's death or does it refer to his death prior to the death of the last life tenant?

A vested remainder is one which, throughout its continuance, gives to the remainderman, or his heirs, the right to the immediate possession whenever and however the preceding estate may determine. (Smith v. Shepard, 370 Ill. 491; Lachenmyer v. Gehlbach, 266 Ill. 11; Brown v. Brown, 247 Ill. 528; Carter v. Carter, 234 Ill. 507.) The rule is, that where property is devised simpliciter to one person and in case of his death to another, there being no circumstances of an uncertain nature with respect to such death, the death contemplated by the testator will be regarded as one occurring before his own death, and the devisee takes a fee. (DeHaan v. DeHaan, 309 Ill. 323.)

From the language of the trust here, the settlor created a vested interest in the beneficiary, Adela K. Ziska, by what amounts to a base or determinable fee in her, however, such a vested interest may be divested upon the happening of the named contingency. ( Smith v. Shepard, 370 Ill. 491.) An executory devise is indestructible; upon the happening of the specified event it springs into being, terminating the preceding determinable fee, and is entirely free from conveyance, lien or charge. ( Smith v. Shepard, 370 Ill. 491.) The fact that the conveyance is chattel or personal rather than real property makes no difference, as a limitation over of chattels is good as an executory devise.

The entire discussion in the briefs centers around the construction given by this court to certain words used in wills in which the time of the death of a beneficiary was not expressly fixed or stated, and which depended upon construction of the language in the will to find what time of death was intended. Appellant relies strongly upon the cases of Lachenmyer v. Gehlbach, 266 Ill. 11, and Smith v. Shepard, 370 Ill. 491. Since the particular issue involved in the present case concerns what time the testators intended when referring to the death of Bardwell D. Phenix, we will, for the purpose of simplification of the issues involved herein, point out the rule as set forth in Smith v. Shepard, 370 Ill. 491, since that case refers to many other cases cited in the briefs of both parties. The case cited, we believe, accurately reflects the rule in force in the construction of a will as to fixing the intent of the time of death referred to by a testator, where the intention of the testator is not clearly expressed in the language of the will.

The general rule, as established by a long line of decisions in Illinois, is that a vested remainder is one which throughout its continuance gives to the remainderman, or his heirs, the right to the immediate possession whenever and however the preceding estate may determine. (Brown v. Brown, 247 Ill. 528; Lachenmyer v. Gehlbach, 266 Ill. 11; Carter v. Carter, 234 Ill. 507; Smith v. Shepard, 370 Ill. 491; Fleshner v. Fleshner, 378 Ill. 536.) In the last mentioned case the subject is re-examined and the general rule followed.

See id. at comment c & d. A gift over takes effect if a contingency happens at any time before termination of the particular estate. See Smith v. Shepard, 370 Ill. 491, 496 (1939). ¶ 19 Here, the trial court granted Canton Park District's motion for summary judgment based on res judicata.

" Also see Storkan v. Ziska, 406 Ill. 259, 94 N.E.2d 185; Smith v. Shepard, 370 Ill. 491, 19 N.E.2d 368; Fleshner v. Fleshner, 378 Ill. 536, 539, 39 N.E.2d 9. [7] The main thing which distinguishes a vested from a contingent remainder is its present capacity to take effect in possession in a determinate person immediately upon the determination of the particular estate.

It is thus clearly stated that the quantum of the property to be received by each brother and sister or their substitutes cannot be ascertained until the death of the wife. This seems a clear expression of intention that the quantum and the recipients should be ascertained and determined as of the wife's death within the principles stated in Smith v. Shepard, 370 Ill. 491, 19 N.E.2d 368. It is clear that the recipients and the quantum of the estate can only be determined and "divided between them share and share alike" at the time of her death. We conclude, therefore, that the brothers and sisters surviving the testator took vested remainders subject to divestiture upon death either with or without issue before the termination of the wife's estate.