Archer v. Jacobs

Decision Date27 October 1904
Citation125 Iowa 467,101 N.W. 195
PartiesARCHER v. JACOBS.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Emmet County; A. D. Bailie, Judge.

The opinion states the case. Reversed.

Soper, Allen & Alexander, for appellant.

E. A. Morling, for appellee.

WEAVER, J.

This appeal is from a judgment rendered against plaintiff upon demurrer to his petition. The facts disclosed by said pleading may be stated as follows:

Plaintiff, claiming to be the owner of a 160-acre tract of land situated in Emmet county, Iowa, entered into a written contract to convey the same in fee simple to the defendant. Thereafter, in alleged pursuance of said contract, plaintiff offered and tendered to the defendant his warranty deed of the land, and demanded payment of the agreed price; but defendant refused to receive or accept the conveyance or to pay the agreed price on the ground that the title thus tendered was not marketable, and thereupon this suit was begun to enforce a specific performance.

The plaintiff's title is derived as follows: In the year 1865 the land was patented by the United States to William H. English, of the state of Indiana, and the title remained in him, unincumbered, until his death, on February 7, 1896. He left a will, which was duly probated, disposing of an estate of over a million dollars, much of which was in landed property. By the terms of his will, after providing for a few minor legacies, the residue of the estate, including the land in controversy, was devised to his descendants. He left no surviving widow, and the devisees hereinafter named constituted all his surviving heirs and next of kin. The residuary devise to which we have referred is in the following words:

(8) All the rest and residue of my estate, real, personal and mixed and wherever the same may be situated I give and bequeath to my beloved children and grandchildren in the proportion following, that is to say:

To my son, William E. English, 1/2 of my said estate.

To my grandson, William English Walling, 1/8 of my said estate.

To my grandson, Willoughby George Walling, 1/8 of my said estate.

To my daughter, Rosalinda English Walling, mother of my said grandsons, 1/4 of my said estate, to have and to hold the same for and during her natural life with the right to use and enjoy the accretions thereof and manage said estate without impairing the principal or aggregate value of the same, which estate at her death I will and devise shall go upon her death, share and share alike to her children, or if there be grandchildrento them shall go the share the parent would have received, if living. If she should die leaving neither child nor grandchildren, then the 1/4 of my estate last mentioned, less the profits and accumulations of the same which my daughter may have used or otherwise disposed of, shall go to my son, William E. English, or if he be dead leaving child or children, then to it or them.

The 1/8 of my estate in this item bequeathed directly to my grandson, William English Walling, and the 1/8 of my estate bequeathed to my grandson, Willoughby George Walling, are to be paid to my said grandsons, with the earnings and accretions thereof, as they shall each arrive at the age of 21 years, but each shall be supported and educated out of the same before that time, I mean that their 1/8 shall be paid or set off to each.

(9) In the event of the death without issue of my grandson, William English Walling, or my grandson, Willoughby George Walling, before receiving the bequest made to them by this will of the 1/8 to each of my estate, the share such grandson would have received, had he lived, shall go to my said daughter, Rosalinda English Walling, subject to the same conditions as the bequest hereinbefore made to her. But if either of my said grandsons shall marry and die before receiving the bequest of 1/8 of my estate leaving child or children by such marriage, then such child or children shall be entitled to the share the parent would have received, had such parent lived.

(10) I hereby appoint my son, William E. English, and my daughter, Rosalinda English Walling, the Executrix and Executor of this Will and request that no bond shall be required of them above the amount of the specific money bequest made herein by paragraphs No. 2, 3, 6 and 7.”

The estate has been fully administered, and the executors discharged. After the death of the testator, the devisees mentioned in the will, William E. English and Rosalinda E. Walling, acting in their own right, and William English Walling and Willoughby George Walling (then being minors), acting by their duly appointed guardian, Willoughby Walling, proceeded to make a partition of the devised lands among themselves by mutual deeds of conveyance, with the intent and purpose of enabling them, and each of them, to obtain and hold in severalty the several tracts or parcels of land according to the allotment agreed upon. In this partition the land in controversy was allotted to William E. English, and, to confirm and effectuate said allotment, Rosalinda E. Walling and her husband, together with Willoughby Walling, as guardian of the two minor devisees, united in a deed conveying to the said William E. English all their interest in said land. The deeds by which this partition was accomplished were reported to the circuit court of Marion county, Ind., where the said estate was being settled, and by which said guardian was appointed, and were by said court ordered approved and confirmed. Thereafter, and after the said William English Walling and Willoughby George Walling had arrived at their majority, they each ratified and confirmed said partition by executing and delivering to said William E. English a deed conveying and releasing to him all interest held or owned by said grantors in or to said land. Later William E. English sold and conveyed said land by warranty deed to the plaintiff in this case. Taking this recital of facts as admitted, is the title thus derived good and marketable?

1. It will be observed from the foregoing showing that the title of William H. English at the date of his death was perfect, and that all persons in being, having any present or contingent interest of any kind in said land under his will, have conveyed the same, either mediately or immediately, to the plaintiff. It follows, therefore, that plaintiff's title is also good, unless we are required to hold that the several estates devised by the testator to his children and grandchildren specifically named in the will, or to some of them, are so limited or restrained that, when all are combined or merged by proper conveyances in a common grantee, they aggregate something less than the entire fee. It is the contention of the appellee that such defect does exist. It is conceded, as we understand counsel, that by the will of William H. English, and by the deeds from Mrs. Walling and her two sons to William E. English, and from William E. English to plaintiff, the latter obtained a good title to a three-fourths interest in the land. It is urged, however, that, as to the one-fourth interest in which a life estate was given to Mrs. Walling, the remainder over is contingent and uncertain, and it cannot be ascertained until her death who will take the same. It is said that such remainder is subject to the following contingencies: (1) The life tenant may bear other children to share in the inheritance; (2) her children may die during her lifetime, in which event the remainder will pass to their children, if any survive the life tenant; (3) no child or grandchild may survive her, in which event the remainder will pass to her brother William E. English, or, if he be dead, then to his children, or, if he leave no children, then the title will revert to the estate of William H. English. Assuming, for the purposes of argument, the existence of these remote possibilities, what is the nature of the remainder devised to the sons of Mrs. Walling?

The distinction between vested and contingent remainders has been the subject of frequent consideration by courts and text-writers from an early day in the development of the common law. In the statement of general rules and definitions there is no great diversity of opinion, but in their application to cases there is considerable confusion. We will here make no attempt to collate, contrast, or reconcile inharmonious decisions, but content ourselves with reference to some of the authorities on which we base our conclusions. Thus far in the legal history of Iowa the courts have rarely been called upon to consider the more intricate phases of the common law of real estate titles, the result being that even to the professional ear the technical words and archaic expressions with which the literature of that law abounds are suggestive of darkness and mystery rather than light. Some of these difficulties are of a very substantial and obdurate character, but in other respects the meaning and effect of the ancient rules and principles, even which couched in the formal and ponderous language of past centuries, may readily be ascertained. Avoiding, so far as possible, mere abstract definitions, it may be said if A., being the owner of land, gives it by deed or will to B. for life, and after the death of B. to C. in fee, the estate given to C. is called a “remainder,” because it is the remnant or remainder of the estate or title which is left after taking out the lesser estate given to B. The same is true where, instead of a life estate, B. is given an estate for years, or any other terminable estate less than a fee. B. is ordinarily spoken of as the “first taker,” because he is the first to come into the possession and enjoyment of the land; and his estate is called a “particular estate,” because it is but a part of the general estate which is finally to pass to or culminate in C. The case here given illustrates the simplest form of creating a remainder. Stated in brief, the grantor or...

To continue reading

Request your trial
18 cases
  • Savela v. Erickson (In re Savela's Estate)
    • United States
    • Minnesota Supreme Court
    • July 27, 1917
    ... ... On his death, the right of the grandchildren to take became vested remainder. Archer v. Jacobs, 125 Iowa, 467, 101 N. W. 195;Matter of Allen, 151 N. Y. 243, 45 N. E. 554. See Johrden v. Pond, 126 Minn. 247, 148 N. W. 112.It is a ... ...
  • Atchison v. Francis
    • United States
    • Iowa Supreme Court
    • December 18, 1917
    ... ... Kellett v. Shepherd, 139 Ill. 443, 28 N. E. 751, 34 N. E. 254; Schouler on Wills (2d Ed.) 563; Archer v. Jacobs, 125 Iowa, 467, 101 N. W. 195;Putbrees v. James, 162 Iowa, 618, 144 N. W. 607;Ross v. Ayrhart, 138 Iowa, 121, 115 N. W. 906. It is equally ... ...
  • Savela v. Erickson
    • United States
    • Minnesota Supreme Court
    • July 27, 1917
    ... ... until the death of August. On his death, the right of the ... grandchildren to take became vested remainder. Archer v ... Jacobs, 125 Iowa 467, 101 N.W. 195; Matter of ... Allen, 151 N.Y. 243, 45 N.E. 554. See Johrden v ... Pond, 126 Minn. 247, 148 N.W. 112 ... ...
  • Atchison v. Francis
    • United States
    • Iowa Supreme Court
    • December 18, 1917
    ... ... and the latter will be rejected. Kellett v. Shepard , ... 139 Ill. 433, 443, 28 N.E. 751; Schouler on Wills (2d Ed.), ... Sec. 563; Archer v. Jacobs , 125 Iowa 467, 101 N.W ... 195; Putbrees v. James , 162 Iowa 618, 144 N.W. 607; ... Ross v. Ayrhart , 138 Iowa 117, 121, 115 N.W ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT