during the period of their natural lives, and the title of said grantees as joint tenants, in equal parts, in said land shall become absolute only on the death of said Charles H. Willard and Ruth A. Willard, or the survivor of either of them." It was contended that the deed was testamentary in character, and, therefore, void because not executed in conformity with the statute of wills. The court says: "While it is not necessary to determine whether the estate to the grantees is a vested remainder in fee, or contingent upon the grantees surviving their parents, we are inclined to the opinion that a fair construction of the clause would give the grantees a vested estate in remainder. There can be no doubt about this view were it not for the survivorship clause in regard to the grantees. The use of the word "absolute" in reference to the title that the grantees are to have, seems to imply that the grantees were to take a title presently, but that such title should not be perfect, but would become so on the death of the grantors. The thing that was to be united with the title of the grantees on the death of the grantors, and by which it would "become absolute," was, the "use and absolute control of said premises," which was expressly reserved to the grantors during their natural lives.37 Although a deed may in terms state that it is made in lieu of a will, yet such a statement would not, of itself, render the deed void as a testamentary instrument. Such a statement has never been held to render an otherwise valid instrument void as a testamentary disposition of property. Where the instrument contains all of the requisites to constitute a valid conveyance of real estate under our statute, a grantor and grantee, coupled with a valid consideration and apt words of conveyance, and is duly executed, acknowledged and delivered as required by law, this is sufficient.38 37-White v. Willard, 232 Ill. 464. 38-Young v. Payne, 283 Ill. 649. A deed executed by a grantor and delivered to a third person with instructions to deliver it to the grantee on the death of the grantor, the provision fixing the time when the grantee was to come into the actual enjoyment and possession of the land did not make the deed testamentary in character. The deed operates as a present conveyance of a remainder after the death of the grantor and required no intermediate estate to support the remainder.39 § 1479. Power of Revocation in Deed-A grantor made a deed of trust conveying certain property to a trustee to be held and managed by him for the benefit of the children of the grantor. The instrument gave no right of control to the grantor of any of the property conveyed or even the right to direct the management or enjoyment of the estate, but it contained a power of revocation in the grantor. This character of a deed, with such a power of revocation, has long been recognized by our law as a proper mode of an ancestor deeding his property to his children and in protecting them in the use and enjoyment of the same. All well skilled and far seeing attorneys advising for the benefit of their clients usually suggest the insertion of such a clause of revocation and no court has ever declared that such a deed is testamentary in character or is to be held to take effect only after death, by reason, alone, of such a clause of revocation. In fact it is not possible for such a clause to have such effect. As a matter of fact, such a deed takes effect at once and continues in full force and effect until actually revoked. If revoked, it can only be revoked during the lifetime of the grantor and if he does not call into effect such power of revocation during his lifetime it continues in full force and effect forever after his death. If he revokes the deed under such power of revocation the deed becomes a nullity, and the title will be reinvested in the grantor by a deed of reconveyance by the trustee. 39-Bullard v. Suedmeier, 291 Ill. The latter clause of this sentence in the opinion was doubtless added because the deed of trust contained the expression, "and in case of such revocation said trust estate, or the portion thereof so revoked, shall be conveyed by the trustee to the settler to be held by him as his sole and absolute property and discharged of the trust declared in said trust agreement." 40 § 1480. Titles Affected by Estoppel-Introduction— Titles are frequently affected by the law of estoppel, and it is proper that they should be considered here. But it cannot be expected that, in a work of this kind, anything more than a cursory view should be taken of them. The law in regard to them is applicable both at law and in equity, although the rules in regard to them may be different in one case than they are in the other. Or, more properly speaking, the rules appertaining to them which may apply in equity have no application in some cases at law. § 1481. Estoppel Defined-An estoppel may generally be defined to be the preclusion of a person from asserting or calling in question a fact which by his previous acts, allegations or denials, on his part, or on the part of those under whom he claims, or by a proper adjudication upon his rights, the contrary of which has been alleged, denied or adjudicated. § 1482. Equitable Estoppels-Pomeroy in his Equitable Jurisprudence, draws a distinction between legal and equitable estoppels and gives the definition of equitable estoppels: Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded both at law and in equity, from asserting rights which might otherwise have existed, either of property, or of remedy, as against another person who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquires some cor 40-People v. Northern Trust Co., 289 Ill. 475. responding right, either of property, of conduct, or of remedy. 41 § 1483. Origin of Equitable Estoppel-In considering the origin of equitable estoppel the learned author says: 'Equitable estoppel, in the modern sense, arises from conduct of the party, using that word in its broadest meaning, as including his spoken or written words, his positive acts, and his silence or negative omission to do anything. Its foundation is equity and good conscience. Its object is to prevent unconscionable and unequitable assertion or enforcement of claims or rights which might have existed or been enforced by other rules of law, unless prevented by the estoppel, and its practical effect is, from motives of equity and fair dealings to create and vest opposite rights in the party who obtains the benefit of the estoppel. The doctrine of equitable estoppel is pre-eminently a creature of equity. It has, however, been incorporated into the law, and is constantly employed by courts of law at the present day in the decision of legal controversies. Preserving its original character, and depending upon equitable principles, it is administered in the same manner, and in conformity with the same rules, by courts both of law and equity." 42 The doctrine of equitable estoppel proceeds on the theory that a party is forbidden to set up his legal title, because he has so conducted himself in regard to the property that to do it would be contrary to equity and good conscience. When the foundation of the estoppel insisted upon is silence, and an omission to give notice of one's rights, the rule is, the party relying on the same must not have had the means of ascertaining the true state of the title by reference to the public records. They are supposed to show the true state of the title.43 If a parol agreement, even though it be without considera 41-2 Pomeroy's Equity, Sec. 804. 42-2 Pomeroy's Equity, Sec. 802. 43-Thor v. Oleson, 125 Ill. 365. tion, has been executed, and, by means thereof, one of the parties has been led into a line of conduct which would be prejudicial to his interest if the parol agreement were not enforced, an equitable estoppel will arise in his favor. So where one of the parties to an agreement under seal, by parol, waives his right thereunder and accepts other considerations therefor, he will be estopped from demanding a performance of the sealed agreement.** If the party in possession of land is aware that a third party claims to own the land and has exhibited evidence of title thereto to the purchaser, and stands silently by and sees the purchaser buy it, under the impression that he is getting a good title to the land, the court will not allow him to set up a claim he had thus fraudulently concealed. Then it might be said that he kept silent when equity required him to speak, and not having spoken when he ought to have spoken, equity will command him to keep silent.45 Where there was no fraudulent purpose in the party acting, and no change in the position or conduct of the other party in consequence thereof the doctrine of estoppel does not apply. The doctrine of estoppel in pais, or equitable estoppel, is based upon a fraudulent purpose and a fraudulent result. If, therefore, the element of fraud is wanting, there is no estoppel, there must be deception and a change of conduct in consequence, in order to estop a party from showing the truth.46 It is not permissible, in an action in ejectment, to invoke estoppel in pais in order to defeat the legal title to land. Estoppel in pais is only available in equity. It is a principle recognized in equity only.47 A party who has parted with all his interest in real estate cannot defeat the title of his innocent grantee by making statements or admissions in disparagement of the 44-Worrell v. Forsythe, 141 Ill. 22. 47-Linnertz v. Dorway, 175 Ill. 508; Wakefield v. Van Tassell, 202 Ill. 41. |