Deener v. Watkins

• Decision Date: 11 November 1935
• Docket Number: No. 4-4034.,4-4034.
• Citation: 87 S.W.2d 994
• Parties: DEENER v. WATKINS et al.
• Court: Arkansas Supreme Court

87 S.W.2d 994

DEENER v. WATKINS et al.

No. 4-4034.

Supreme Court of Arkansas.

November 11, 1935.

Rehearing Denied December 16, 1935.

Appeal from White Chancery Court; Frank H. Dodge, Chancellor.

Suit by J. H. Deener, trustee, against W. D. Watkins and others. Defendant W. D. Watkins died and the suit was revived in the name of his heirs. From a judgment for defendants, plaintiff appeals.

Affirmed.

Brundidge & Neelly, of Searcy, for appellant.

Gordon Armitage and B. E. Taylor, both of Searcy, for appellees.

BUTLER, Justice.

On February 17, 1928, W. D. Watkins was indebted to the Blanton Company and, to evidence this indebtedness, on that date with his wife, Zula, executed a note secured by a deed of trust on an undivided one-fifth interest in two tracts of land situated in White county, Ark. Suit was brought for judgment on the note and for foreclosure of the mortgage. W. D. Watkins died and the suit was revived in the name of his heirs. An answer and intervention were filed, which in effect defended on the ground that W. D. Watkins, the mortgagor, had no interest of any nature in the lands mortgaged which he could convey or encumber. This defense was based upon the provisions of the will of J. R. Coody, deceased, which, by clause 6 thereof, devised to Dora Watkins, his daughter, who is the mother of W. D. Watkins, the tracts of land mortgaged by said W. D. Watkins. This clause is as follows: "* * * give, devise and bequeath to my daughter, Dora Watkins, as her sole and separate property during her natural life and at her death to her children absolutely, the following real estate: (Then follows the description.)"

Mrs. Dora Watkins, the devisee in the will of her father, J. R. Coody, is still living and enjoying her life estate. The main question presented for the trial court's decision was whether, by the terms of the devise, W. D. Watkins, as one of the children of Dora Watkins, became seized of a vested remainder in the life estate devised to his mother, or, was it contingent? The court found: "That under the provisions of the will of J. R. Coody as interpreted by the court the said Dora Watkins was bequeathed a life estate in and to the said lands; that the remainder was bequeathed contingently by the said will to her children at her death; that the said W. D. Watkins had no such interest in the said lands; that the deed of trust in which he and his wife, Zula Watkins, undertook to encumber a part of the said lands is void and should be canceled, set aside and forever held for naught."

The appellant contends that the quoted devise created a vested remainder in W. D. Watkins by which he had a present interest in the lands devised, the enjoyment thereof being postponed until the termination of the particular estate. It is insisted that the conveyance involved is similar to that considered in the case of Landers v. People's Building & Loan Association, 190 Ark. 1072, 81 S.W.(2d) 917, 919, and that this case is controlled by that. In that case the general rule from Thompson on Real Property, vol. 3, p. 193, is quoted as follows: "A vested remainder is a present interest which passes to a party to be enjoyed in the future, so that the estate is invariably fixed in a determinate person after a particular estate terminates. It is an estate to take effect after another estate for years, for life, or in tail, which is so limited that if that particular estate were to expire or end in any way at the present time, some certain person who was in esse and answered the description of the remainderman during the continuance of the particular estate would thereupon become entitled to the immediate possession, irrespective of the concurrence of any collateral contingency. * * * A vested remainder exists where real estate is granted or devised to one for life with remainder to another at the death of the life tenant." Applying this rule to the conveyance in question in that case, the court held that it created a vested remainder. That conveyance was a...