Bunting v. Speek

• Decision Date: 05 April 1889
• Citation: 21 P. 288,41 Kan. 424
• Parties: THOMAS M. BUNTING v. MICHAEL C. SPEEK et al
• Court: Kansas Supreme Court

21 P. 288

41 Kan. 424

THOMAS M. BUNTING v. MICHAEL C. SPEEK et al

Supreme Court of Kansas

April 5, 1889

Error from Doniphan District Court.

EJECTMENT by Bunting against Speek and wife. Judgment for defendants at the October term, 1886. The plaintiff brings the case to this court. The opinion states the material facts.

Judgment affirmed.

David Rea, Joseph Rea, and F. Babcock, for plaintiff in error.

Albert Perry, for defendants in error.

SIMPSON C. HORTN C. J., concurring. VALENTINE, J. JONHSTONE, J.

OPINION

SIMPSON, C.:

This action was commenced by the plaintiff in error in the district court of Doniphan county, on the 9th day of February, 1886. It is an action in ejectment to recover the possession of eighty acres of land, and to recover rents and profits. The plaintiff below and plaintiff in error is a grandson of one Michael Bunting, who by will devised his estate, real and personal, to his wife during her lifetime, and then to descend to his legal heirs. The father of the plaintiff in error died before the death of the grandmother, and at her death he claimed the estate as sole surviving heir. The defendant in error claims the realty by virtue of conveyances from the grandmother and father of the plaintiff in error executed in their lifetime. The defendant in error has had the possession and use of the real property since the execution of the conveyances in October, 1868. The answer is a general denial, and a plea of the statutes of limitations. There was a trial by the court at the October term, 1886.

All the material facts are stated in the special findings of fact made by the court on the trial. They are as follows:

"1. Michael Bunting died in said county and state, January 9, 1862, seized in fee simple of the following-described land, to wit: north half of northeast quarter of section 9, township 3, range 20, being the land in controversy.

"2. At his death he resided with his family upon said land.

"3. Michael Bunting at his death left surviving him his widow, Nancy Bunting, and his son, Jacob L. Bunting, who was the only child of said Michael Bunting known to be living at his death.

"4. Michael Bunting had one other child, Daniel Bunting, born to him in his lifetime, but said son Daniel Bunting left Elwood, Kansas, with his wife, in 1857 or 1858, going off in a flat-boat on the Missouri river, and himself and wife were never heard from thereafter, and he left no children, and so far as the evidence shows, none were born to him.

"5. Nancy Bunting, widow of Michael Bunting, died April 27, 1885.

"6. Jacob L. Bunting died March 5, 1870, his widow, Sarah E. Bunting, and his only child, Thomas M. Bunting, the plaintiff in the case, surviving him.

"7. Sarah E. Bunting, widow of Jacob L. Bunting, after her husband's death married Isaac Erickson, and said Erickson and one child by said marriage are now living.

"8. Sarah E. Erickson, former wife of Jacob L. Bunting, died January 26, 1880.

"9. Michael Bunting made a will on the 5th day of October, 1861, which was thereafter admitted to probate, and recorded in the office of the probate court of Doniphan county, Kansas, and letters testamentary with a copy of the will and certificate thereof, issued to Hugh Robertson, executor therein, on March 5, 1862.

"10. The said will and letters testamentary are in words and figures as follows, to wit:

" THE TERRITORY OF KANSAS, COUNTY OF DONIPHAN, SS.--To all Persons to whom these Presents shall come, Greeting: Know ye, that the last will and testament of Michael Bunting, deceased, hath in due form of law been exhibited, proven and recorded in the office of the judge of the probate court for Doniphan county, a copy of which is hereunto annexed; and inasmuch as it appears that Hugh Robertson has been appointed executor in and by the last will and testament to execute the same, and to the end that the property of the testator may be preserved for those who shall appear to have a legal right or interest therein, and that the said last will may be executed according to the request of the testator, we do hereby authorize him, the said Hugh Robertson, as such executor, to collect and secure all and singular the goods, chattels, rights and credits which were of the said Michael Bunting at the time of his death in whosesoever hands or possession the same may be found, and to perform and fullfill all such duties as may be enjoined upon him by said will, so far as there shall be property, and in general to do and perform all other acts which are now or hereafter may be required of him by law.

" In testimony whereof, I, James B. Maynard, judge of the probate court in and for said county of Doniphan, have hereunto signed my name and affixed the seal of said court, this fifth day of March, 1862.

JAMES B. MAYNARD, Judge of Probate.

" THE LAST WILL AND TESTAMENT OF MICHAEL BUNTING, OF THE COUNTY OF DONIPHAN AND STATE OF KANSAS.

" I, Michael Bunting, considering the uncertainty of this mortal life, and being of sound mind and memory, do make and publish this my last will and testament in manner and form following, that is to say:

" First. I give and bequeath to my son Jacob Bunting the sum of ten dollars.

" Second. I will and bequeath to my beloved wife, Nancy Bunting, after all my just debts and liabilities are paid, all the rest of my estate, real and personal, to have and to hold them, together with all rights and privileges thereto belonging, during her lifetime, and then they are to descend to my legal heirs.

" Third. I do hereby appoint Hugh Robertson, of the county and state aforesaid, executor of this my last will and testament, hereby revoking all former wills by me made.

" In witness whereof, I have set my hand and seal, the fifth day of October, in the year of our Lord one thousand eight hundred and sixty-one. MICHAEL BUNTING.

Attest: HUGH ROBERTSON, JAMES MATTERSON WARLEY, MARY JANE WARLEY.

" I, James B. Maynard, judge of the probate court within and for Doniphan county, state aforesaid, do certify that the above and foregoing to be a true copy of the will of Michael Bunting, deceased, placed on file in my office.

" Witness my hand and seal of court, affixed at office in Troy, this fifth day of March, 1862. JAMES B. MAYNARD, Judge of Probate.'

"Hugh Robertson thereafter acted as executor of said estate.

"11. On August 13, 1868, Nancy Bunting executed a quitclaim deed of' said above-described land to John D. Paden, which deed was on the same day filed for record and recorded in the office of the register of deeds of Doniphan county.

"12. On August 13, 1868, Jacob L. Bunting and Sarah E. Bunting his wife also executed a quitclaim deed of said land to John D. Paden, which deed was duly filed for record and recorded in the office of the register of deeds of Doniphan county, Kansas, August 21, 1868.

"13. In both of said deeds last described the conveyance is of the whole of said lands described in finding No. 1.

"14. On October 27, 1868, John D. Paden and wife conveyed said land to Michael C. Speek, the defendant, who has ever since been in possession thereof; said deed was filed for record and recorded in the office of' the register of deeds for Doniphan county on October 27, 1868, the consideration thereof being five hundred dollars.

"15. It does not appear from the evidence that Nancy Bunting, widow of Michael Bunting, ever elected to take under the will.

"16. The rental value of the premises in dispute is the sum of two dollars per acre for forty-five acres of cultivated land, to be calculated from and after the 25th day of April, 1885."

"CONCLUSION OF LAW.

"Thomas M. Bunting, the plaintiff, has no interest in the land in controversy, and the defendants, Michael C. Speek and Ellen Speek, are entitled to a judgment for costs."

It is claimed by the plaintiff in error that the will of Michael Bunting created a life estate in favor of his wife, Nancy Bunting, and a contingent remainder in favor of his heirs. About the creation of the life estate there was not nor can there be any controversy. The controlling question is whether the remainder is a vested or a contingent one. We have given this question very earnest consideration, because it is an open one in this court, and the decision of it establishes to a certain extent a rule of property not heretofore determined in this state.

Blackstone defines "an estate in remainder" to be "an estate limited to take effect and be enjoyed after another estate is determined." To create an estate in remainder, the owner of the fee must first carve out of the fee an estate for life, or for years, as a supporting or precedent estate to the estate in remainder. This is called the particular estate, for the reason that it is only a small part or particle of the inheritance. The necessity for the creation of the particular estate arises from the fact that "remainder" is a relative expression, and implies that some portion of the estate is previously disposed of, for where the whole is granted there cannot possibly exist a remainder. The particular estate for life, and the remainder in fee, are only parts of one and the same estate, upon a principle grounded in mathematical truth, that all the parts are no more than equal to the whole. This particular estate and the estate in remainder must be created at the same time, and by the same conveyance; for, as the estate in remainder must have a particular estate to support it, and as the particular estate and the remainder constitute the whole estate, it follows that the remainder must commence, or must pass out of the grantor, at the time of the creation of the particular estate, and must vest in the remainderman during the continuance of the particular estate.

Remainders are either...