Ellingrod v. Trombla, 34476
| Decision Date | 27 March 1959 |
| Docket Number | No. 34476,34476 |
| Citation | 168 Neb. 264,95 N.W.2d 635 |
| Parties | Polly Anna Ludlow ELLINGROD, Appellant, v. O. D. TROMBLA et al., Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. The provisions of a uniform act must be construed together to give effect to the whole act.
2. In construing a uniform act, such as the Uniform Property Act, the meaning of which is not clear, the intention of those who drafted it, if ascertainable, should be given controlling consideration.
3. The enactment of a uniform property act is within the general legislative power of the Legislature to fix the policy of the law as it relates to the conveyance of property in this state.
4. Upon the enactment of the Uniform Property Act, its provisions supersede conflicting provisions of the law of property existing prior to the effective date of the act.
5. Under section 76-113, R.R.S.1943, of the Uniform Property Act, a devise to a person and 'to his descendants' creates a life estate in such person and a contingent remainder in his descendants as a class.
6. When a party enters into a contract to sell certain real estate and agrees to furnish a warranty deed conveying a good and merchantable title thereto, he is not entitled to the specific performance of the contract where it appears that he has only a life estate in such property.
Howard S. Foe, Clifford H. Phillips, Red Cloud, for appellant.
Cline, Williams, Wright & Johnson, Lincoln, William A. Letson, Red Cloud, for appellees.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
This is a suit to obtain specific performance of a contract for the sale of real estate. The trial court denied the prayer of plaintiff's petition and the plaintiff has appealed.
The sole question involved is whether a devise of the real estate contained in the will of Mildred Ludlow, the mother of the plaintiff, vested a fee simple title or a life estate with a remainder in her descendants. The devise provided: 'To my daughter, Polly Anna Ludlow, and her descendants, I will the quarter section of about 162 acres of farm land, SE 1/4 4-2-11 in Webster County, Nebraska.' There is no other language within the four corners of the will to indicate the intention of the testatrix other than the foregoing provision.
The testatrix died in 1948. The will was executed about 3 months prior to her death. The will was in the handwriting of the testatrix and was evidently made without the assistance of one skilled in the drafting of wills. At the time of the death of testatrix Polly Anna Ludlow was unmarried and had no children. She was married in 1950 and at the time of trial had two children, Holly and Ruth Ellingrod, ages 5 and 2 years, respectively.
On July 25, 1957, plaintiff entered into a contract to sell real estate to O. D. Trombla, Robert A. Dodson, and Adna A. Dodson. The latter contend that the title is not merchantable by reason of the provisions of section 76-113, R.R.S.1943, which provides: 'When an otherwise effective conveyance of property is made in favor of a person and his 'children,' or in favor of a person and his 'issue,' or by other words of similar import designating the person and the descendants of the person, whether the conveyance is immediate or postponed, the conveyance creates a life interest in the person designated and a remainder in his designated descendants, unless an intent to create other interests is effectively manifested.' This section must be construed with section 76-110, R.R.S.1943, by which fees simple conditional and fees tail are abolished and any attempt to create such estates is stated as creating a fee simple title in the person who would have taken a fee simple conditional or a fee tail. The latter section specifically provides that: 'Nothing herein contained shall affect the operation of sections 76-111, 76-112 and 76-113 of this act.'
The foregoing sections are a part of a single legislative enactment. All are a part of a uniform property act and therefore must be construed together to give effect to all. It will be noted by section 76-110, R.R.S.1943, that fees simple conditional as they existed under the law of England prior to the 'statute de donis' are no longer permitted. The statute also prohibits the creation of fee tail estates. Since by the adoption of the 'statute de donis' a fee simple conditional became a fee tail, the inhibiting provisions of the statute have the effect of prohibiting the creation of fee simple conditional and fee tail estates, and any attempt to create them results in a fee simple title in the person who would otherwise take a fee simple conditional or a fee tail estate. We point out that the pertinent language of the will creates a fee tail estate under the common-law doctrine of Wild's Case, 6 Coke 16b, and except for section 76-113, R.R.S.1973, the fee tail estate in plaintiff would be converted into a fee simple estate by section 76-110, R.R.S.1943. But we must take notice of the fact that section 76-110, R.R.S.1943, is inapplicable by its own terms to conveyances that fall within the scope of section 76-113, R.R.S.1943.
By section 76-113, R.R.S.1943, the Legislature has provided that a conveyance of property in favor of 'a person and his 'children,' or in favor of a person and his 'issue,' or by other words of similar import designating the person and the descendants of the person,' creates a life interest in the person and a remainder in his descendants in the absence of a contrary intent manifested in the will. When the testatrix devised the property 'to my daughter, Polly Anna Ludlow, and her descendants,' the devise came within the scope of section 76-113, R.R.S.1943, which is the applicable provision rather than section 76-110, R.R.S.1943, by reason of the express terms of the latter section. The words 'and her descendants' contained in the devise are words of similar import within the meaning of that term contained in section 76-113, R.R.S.1943. Godden v. Long, 104 Neb. 13, 175 N.W. 655; Wilkins v. Rowan, 107 Neb. 180, 185 N.W. 437; Seybert v. Seybert, 118 Neb. 246, 224 N.W. 1; Salmons v. Salmons, 142 Neb. 66, 5 N.W.2d 123, 8 N.W.2d 517.
We necessarily come to the conclusion that under section 76-113, R.R.S.1943, plaintiff would take a life estate and her descendants would take a fee simple interest as a class if there were descendants in being at the death of testatrix, the effective date of the will. This interpretation of section 76-113, R.R.S.1943, is admittedly in conflict with Restatement, Property, § 283(a), p. 1483. In the special note to section 283, Comment a, this is made clear. By the enactment of section 13 of the Uniform Property Act by the Legislature as section 76-113, R.R.S.1943, the life interest and remainder construction was adopted in this state and it applies to all cases which are within either the rule stated in (a) or (b) of Restatement, Property, § 283, p. 1483. See, also, 5 American Law of Property, § 22.26, p. 306, and note 9, p. 310; Simes and Smith, Law of Future Interests (2d Ed.), § 701, p. 173. The question then arises as to the nature of the estate conveyed when the devise is to a named person and her descendants and there are no living descendants on the effective date of the will, as in the present case.
We think the rule is correctly stated in the Restatement of the Law of Property as follows: 'When a conveyance limits property in favor of 'B and his children' or by other words of similar import, then, unless a contrary intent of the conveyor is found from additional language or circumstances, * * * (b) if B has no child at the time when this conveyance becomes effective, the named parent is not a member of any class, but the conveyance is construed to limit a life interest in favor of such named parent and a class gift in favor of the children of such parent.' Restatement, Property, § 283, p. 1483. See, also, 5 American Law of Property, § 22.20, p. 294 and footnote 5, p. 295, and § 22.21, p. 297, and footnote 12, p. 299; Simes and Smith, Law of Future Interests (2d Ed.), § 692, p. 157, and footnote 7, p. 160.
It is important, we think, to discuss the historical background of the Uniform Property Act, now sections 76-101 to 76-123, R.R.S.1943. In this respect we point out that the Uniform Property Act was prepared by the National Conference of Commissioners on Uniform State Laws and the American Law Institute acting jointly. The act received years of study on the part of a dozen or more of the best-known authorities on the law of property to be found in America. The act was drawn primarily to abolish anachronisms in the law of property, to abolish many out-of-date...
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...We deem it necessary to again point out the public policy involved in the enactment of the Uniform Property Act. In Ellingrod v. Trombla, 168 Neb. 264, 95 N.W.2d 635, we said: 'The act was drawn primarily to abolish anachronisms in the law of property, to abolish many out-of-date characteri......
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...76-110, R.R.S.1943, now creates an estate in fee simple in the child of the testator. A similar argument was made in Ellingrod v. Trombla, 168 Neb. 264, 95 N.W.2d 635. In the Ellingrod case the devise was to a child of the testatrix 'and her descendants.' This court held that section 76-113......
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