Dickerson v. Morse

• Decision Date: 10 March 1925
• Docket Number: 35745
• Citation: 202 N.W. 601,200 Iowa 115
• Parties: FOREST G. DICKERSON, Appellant, v. ISABELLE MORSE et al., Appellees
• Court: Iowa Supreme Court

202 N.W. 601

200 Iowa 115

FOREST G. DICKERSON, Appellant, v. ISABELLE MORSE et al., Appellees

No. 35745

Supreme Court of Iowa, Des Moines

March 10, 1925

REHEARING DENIED JUNE 25, 1925.

Appeal from Marion District Court.--J. H. APPLEGATE, Judge.

ACTION in equity, to rescind a contract of purchase of land because of an alleged defect of title. A demurrer to the petition was sustained. From a resulting judgment against plaintiff for costs, he appeals.--Reversed and remanded.

Reversed and remanded.

Johnson & Teter, for appellant.

Johnston & Shinn, for appellees.

VERMILION J. FAVILLE, C. J., and STEVENS and DE GRAFF, JJ., concur.

OPINION

VERMILION, J.

The petition is in equity, and alleges that the plaintiff agreed to purchase a certain described 80-acre tract of land from the defendants, and in the contract of purchase the defendants agreed to furnish plaintiff an abstract showing good and merchantable title; that defendants delivered possession of the premises to plaintiff, and assured him that they had a good title, and would furnish him an abstract showing good and merchantable title; that, relying thereon, plaintiff accepted the warranty deed of the defendants, paid part of the purchase price, and executed his note, secured by mortgage, to the defendant Isabelle Morse, for the balance; that the defendants held title to such land under and by virtue of the will of Charles A. Morse, whereby the testator gave to the defendant Isabelle Morse a life estate therein, with remainder to the defendant William Arthur Morse, subject to a trust provided for in the will; that defendants had no title to the real estate which they could convey to plaintiff; and that the abstract furnished by defendants to plaintiff did not show good and merchantable title. The plaintiff, in effect, asks a rescission of the contract.

The will in question is set out. It gives to Isabelle Morse, the widow of the testator, the land in question, with other land, "to have, hold and use with all the rents, income and profits arising therefrom, for her sole use, benefit, and pleasure during the term of her natural life, or so long as she remains my widow, and in case of her marriage, then in that event, the one third of said property * * * shall be her sole and absolute property, and the remaining two thirds thereof to be held in trust as here-inafter directed for my son, William Arthur Morse * * *." The next paragraph of the will is as follows:

"I give, will, devise and bequeath to my beloved son, William Arthur Morse, the following real property [describing the land in question], to be his sole and absolute property, subject, however, to the said life estate of my said wife, or the termination thereof by her marriage, as herein directed in the event of her marriage, and also subject to the trust hereinafter created and directed. That is to say, I hereby will and direct that at the termination of the life estate of my said wife, by her death, that the said next above described 80-acre tract of real property, together with all the rents, income and profits arising there from shall be held in trust for a period of five years thereafter for my said son, William Arthur Morse, or at the termination of the terminable estate of my said wife in the said property by her marriage, that the two thirds of the said next above described 80-acre tract, together with all rents, income and profits arising therefrom shall be held in trust for a period of six years thereafter for my said son; and that if by reason of the marriage of my said wife it becomes necessary to partition the said tract of land by legal proceedings, or otherwise, and the court determines that a sale and not a partition in kind is advisable and for the best interest; then, in that event I will and direct that the proceeds of the sale of the said two thirds thereof together with the interest, income and profits arising therefrom be held in trust for my said son for the said period of six years."

The will provides for the appointment by the court of a trustee, to carry out its provisions. To the petition, a general equitable demurrer was sustained.

Two questions are presented in argument. (1) Was the remainder to William Arthur Morse a vested or a contingent remainder? (2) Did the trust created by the will operate to prevent the conveyance by the life tenant and the remainderman from passing a good title?

"'A vested remainder, whereby the estate passes by the conveyance, but the possession and enjoyment are postponed until the particular estate is determined, is where the estate is invariably fixed to remain to certain determinate persons. Contingent remainders are where the estate in remainder is limited to take effect either to a dubious or uncertain person or upon a dubious or uncertain event, so that the particular estate may be determined and the remainder never take effect.'" Fulton v. Fulton, 179 Iowa 948, 162 N.W. 253.

"If the gift is immediate, though its enjoyment be postponed, it is vested; but if it is future, and is dependent on some dubious circumstance, through which it may be defeated, then it is contingent." Taylor v. Taylor, 118 Iowa 407, 92 N.W. 71; Horner v. Haase, 177 Iowa 115, 158 N.W. 548.

If the provision for the creation of the trust be left out of view there can be no doubt that the devise creates a vested remainder in the son. It would give simply a life estate to the widow, with remainder over to a person certain, depending only on whether the first estate is one for life or years. The event, the termination of the precedent estate is certain to occur,--if not by the remarriage of the widow, then by her death. It is also certain that the son will take the fee in all or a portion of the land, depending on whether the particular estate is terminated by the death or the remarriage of the widow. There is no contingency that can prevent the taking effect in possession of the remainder in fee, in one or both of those to whom it is given by the will. The only uncertainty is whether the son will take all the land, on the termination of the particular estate by the death of the life tenant, or he two thirds, and the widow one third, on the termination of the particular estate by her remarriage. The amount or portion of the land going to the son may be diminished; but the character of his interest or estate is the same. An uncertainty as to the quantity or value of the interest given in remainder does not make the remainder contingent. Jonas v. Weires, 134 Iowa 47, 111 N.W. 453. The devise is not to the son in case he survives his mother, or is living at her remarriage or at the termination of the trust. The devise of the remainder after the termination of the particular estate is to the son, to be his "sole and absolute property," subject to the trust. No disposition is made of the estate in case of his death before the termination of the trust. He may die before coming into the actual possession of the remainder; but...