Birdsall v. Birdsall
| Citation | 132 N.W. 809,157 Iowa 363 |
| Parties | CHARLES F. BIRDSALL, MILDRED PAYTON and DAISY BIRDSALL, Appellants, v. G. I. BIRDSALL |
| Decision Date | 18 October 1911 |
| Court | United States State Supreme Court of Iowa |
THURSDAY OCTOBER 18, 1912.
Appeal from Dallas District Court.--HON. J. H. APPLEGATE, Judge.
ACTION in equity to enforce the specific performance by defendant of a contract to convey entered into between defendant and plaintiffs. Plaintiffs alleged ownership of the property and the tender of a warranty deed constituting full compliance with the contract on their part and the refusal of the defendant to accept. Defendant pleaded in answer, in effect that the title of plaintiffs was defective, setting out the facts constituting such alleged defect. There was a demurrer to this answer on the ground that the facts stated did not constitute a defense, and this demurrer was overruled. Plaintiffs elected to stand on their demurrer, and judgment was rendered against them, dismissing their petition, and from this judgment they appeal.
Affirmed.
W. H Fahey, for appellants.
W. H. Winegar, for appellee.
The property to which this controversy relates is a specific portion described by metes and bounds, of the N.W. 1/4 of section 30, township 81 N., of range 27 W., of the fifth prime meridian, in Dallas county, and plaintiffs trace their title through their grandfather, S. G. Birdsall, who died seised of the entire quarter section, leaving a will, of which the following is the significant paragraph: The persons to whom life interests are devised are still living, but by various conveyances and transfers not necessary to be described in detail the plaintiffs, who are children of Walter Gilson Birdsall and his wife Nora Birdsall, have acquired these life interests, and also the interests, whatever they may be, of their brothers and sisters in the portion of the quarter section which is involved in this action, and the question for decision is whether plaintiffs have thus perfected in themselves a complete fee-simple title to the land.
It is not contended for appellants, if we understand the argument in their behalf, that the words, "who shall be living at the time," are intended to describe the children of Walter Gilson Birdsall who shall be living at the time of testator's death; and, in view of the language used in this section of the will, such contention could not reasonably be made. The words, "at their death, I will, devise, and give said quarter section of land," are, of course, not controlling, for they might well be construed as contemplating a present devise of a remainder with right of enjoyment only at the termination of the life estate. But the words "at the time" manifestly describe the devisees as the children of Walter Gilson Birdsall who shall survive him and the issue of any such children as shall not survive him. That such description excludes persons who may be living at the death of the testator, but do not survive the life tenant, is well settled by the authorities. In re Albiston's Estate, 117 Wis. 272 (94 N.W. 169); In re Moran's Will, 118 Wis. 177 (96 N.W. 367); Smaw v. Young, 109 Ala. 528 (20 So. 370).
It is assumed by counsel on each side that the answer to the question involved in this case depends upon whether the remainder provided for in favor of the children of Walter Gilson Birdsall, who shall be living at the termination of the life estate and the issue of any children who may have died, is vested or contingent. Abstractly this may not be true, for, if plaintiffs have acquired all the rights by way of life interest, remainder, and reversion, then they no doubt have a complete title, although the remainder may be contingent. But, as applied to the facts of this case, the issue between the parties is practically whether the remainder is vested or contingent, for, if contingent, then plaintiffs have not acquired all such interests. Other children may be born to Walter Gilson Birdsall, and survive him and his present wife, whose interests have not in any way been acquired by these plaintiffs. And some of the living children, brothers and sisters of the plaintiffs, may die before the death of him and his wife, leaving issue, and the issue of such deceased children would have the same interest in the remainder as the children surviving, for they would not take by representation through their deceased parents, but in their own right by substitution. Taylor v. Taylor, 118 Iowa 407, 92 N.W. 71; Whitesides v. Cooper, 115 N.C. 570 (20 S.E. 295). It is clear, therefore, that in this case, if the remainder devised in the will is contingent, plaintiffs have not a complete title.
Before proceeding further with the discussion of the nature of the remainder devised, we may well notice the argument advanced, that, as plaintiffs in whom are now consolidated all the rights of the children of Walter Gilson Birdsall as remaindermen have also acquired the interests of the tenants for life, there has been a merger perfecting title in them to the exclusion of children subsequently born or the issue of children now living who may not survive Walter Gilson Birdsall and his present wife. But, while it is true that in general the remainderman may by acquiring the existing life estate perfect a complete title in himself, this is not true, if the merger leaves other interests outstanding. If plaintiffs in their own right and by acquisition from their brothers and sisters have only a contingent remainder, they can not by the acquisition of the life estate cut off others whose rights may be dependent upon the same contingency. The estate in which the merger takes place is not enlarged by the accession of the preceding estate. 2 Washburn, Real Property (6th Ed.) 546; 2 Blackstone's Commentaries, 177; 1 Tiffany, Real Property, 76; 4 Kent, Commentaries (14th Ed.) 99; Minor & Werts, Real Property, section 699; Archer v. Jacobs, 125 Iowa 467, 101 N.W. 195.
Coming now specifically to the question whether the devise of a remainder to the children of the life tenant surviving at his death and the issue of such children who do not thus survive creates a contingent remainder, we find the authorities practically agreed, with an exception hereafter to be noted in the conclusion that the remainder is contingent on account of the uncertainty as to the persons who are to take. It is not necessary here to elaborate definitions of contingent remainders which shall be applicable to all possible cases. It is enough to say that in such a case as that which we are discussing, reason and authority point to the inevitable conclusion that during the continuance of the life estate there is a contingency not only as to the extent of the share to be enjoyed by those who may survive, but also as to the persons who are to take shares in the remainder, and this uncertainty relates, not only to the possible exclusion of some who during the continuance of the life estate apparently will be entitled to shares, but also to the inclusion of others who at some time during the continuance of the life estate may not be in existence, or may not be apparently entitled to participate in the distribution of the property. For instance, some of the children of Walter Gilson Birdsall may now have living issue. As matters now stand, the plaintiffs and their brothers and sisters have each an apparent prospect of sharing in the remainder, and the present living issue of one of them has no apparent prospect of thus sharing, but, if the parent of such issue should die, then the issue would be entitled to share. To say nothing of the possibility of the birth of other children to Walter Gilson Birdsall and of other issue to plaintiffs and their brothers and sisters, there may well now be persons living who have a contingent interest in the property. Without elaborate citations of...
To continue reading
Request your trial