Faber v. Police
| Decision Date | 22 November 1878 |
| Citation | 10 S.C. 376 |
| Parties | FABER v. POLICE. |
| Court | South Carolina Supreme Court |
A devise to trustees for the use of A " during his life and after his death in trust for his lawful issue living at the time of his death; and if he should die leaving no issue," (there being none) then over to his residuary devisees and legatees, gives to the remaindermen not a vested but a contingent remainder.
A contingent remainder held under a devise may be defeated by a feoffment with livery of seizin from the tenant for life, and a release from the heir of the testator gives the purchaser good title.
A devise to trustees, their heirs and assigns, " in trust for the use of A during his life," with contingent remainders over, vests, under the Statute of Uses, the legal estate in A.
BEFORE REED, J., AT CHARLESTON, JUNE, 1877.
This was an action by John L. Faber against J. G. Police to recover damages for the breach of a contract for the sale of a lot of land in the city of Charleston.
The case was referred to Samuel Lord, Jr., Esq., to take testimony and report the facts, together with his opinion on the title tendered by the plaintiff to the defendant.
The following is the report of the Referee:
This action was brought to recover damages sustained by the plaintiff in consequence of the refusal of the defendant to comply with the contract made by him on the 19th day of July 1875, for the purchase of the lot of land on the East side of King street, in the city of Charleston, more particularly described in the complaint.
The answer admits the making of the contract, as alleged in the complaint, and the tender of a deed of conveyance to the defendant on the 27th July, 1875. The only defense set up is that the plaintiff had not an estate in fee simple in the premises.
The question thus presented arises under the will of Christian Henry Faber, who was seized of the lot in question at the time of his death, and who, by his last will, admitted to probate in 1828, devised it to his three nephews, Henry Frederick Faber, Joseph W. Faber and John C. Faber, their heirs and assigns, in trust for the use of his son John Lewis Faber during his life, and after his death in trust for his lawful issue then living; and if he should die without leaving issue at the time of his death, then to his residuary legatees, Henry F. Faber, Joseph W. Faber, John C. Faber Maria Christiana Faber, Catharine E. Bennett, Christina Faber and Catharine Faber.
The testator died leaving his will in full force, and leaving his widow Anna Margaret Faber and his son John Lewis Faber, and leaving no other issue.
Henry F. Faber, one of the trustees, died about the year 1839.
On the 30th June, 1843, Joseph W. Faber, John C. Faber, Maria Christiana Faber and Catharine E. Bennett, two of whom (Joseph W. and John C. Faber) were surviving trustees under the will, in consideration of regard and affection and of one dollar paid them by John Lewis Faber, the life tenant, released to him and his heirs and assigns all their interest in the lot in question as residuary devisees of Christian Henry Faber.
On the 1st July, 1843, John Lewis Faber, being then of full age and in possession of the premises, conveyed them, by deed of feoffment and livery of seizin, to Lawrence H. Folker in fee, who, on the 2d July, 1843, reconveyed the same to him and his heirs.
On the 8th day of the same month of July Mrs. Ann Margaret Faber by deed released all her right in the premises to John Lewis Faber. John Lewis Faber, at the time of the execution of this deed, was unmarried. He afterwards married, and has now three children living, the eldest of whom is nineteen and the youngest seventeen years of age. Of the remaindermen, to take in default of issue, living at his death, all have released their interest in the property except Christina and Catharine Faber.
On the 6th February, 1851, John Lewis Faber, in consideration of $6,000, conveyed the premises to his mother, Ann Margaret Faber, who died intestate in 1858, leaving the said John Lewis Faber as sole heir. No letters of administration upon her estate have been taken out.
The objections urged by the defendant to the plaintiff's title were: First, that by the deed of feoffment with livery of seizin, made by John Lewis Faber to L. H. Folker, the contingent remainders created by the will of Christian Henry Faber were not destroyed; and, second, that until administration upon the estate of Ann Margaret Faber has been had the plaintiff cannot convey the premises.
I find, as conclusions of law:
1. That under the will of Christian Henry Faber the legal estate to this lot vested, by the Statute of Uses, in the cestuis que use , the testator not having imposed on the trustees any duties which in any way interfered with the existence of legal estates in the different beneficiaries named in the will.- Ramsay vs. Marsh , 2 McC. 252; Webster vs. Cooper , 14 How., (U. S. S. C.,) 488.
2. That the limitations by the will of Christian Henry Faber to the issue of John Lewis Faber constituted contingent remainders. They are to the issue who shall be living at his death; and until that event happens it must remain perfectly uncertain who will be the persons to take. This is the definition of one species of contingent remainders.
3. That by the deed of feoffment to L. H. Folker, the contingent remainders to the issue of John Lewis Faber and to the residuary devisees were effectually barred and destroyed by the reconveyance to John Lewis Faber. He took a fee simple, subject only to the right of his mother, Ann Margaret Faber, as one of the heirs-at-law of her husband. By her release to him his title became absolute and unquestionable to hold the premises.- Redfern vs. Middleton , Rice, 459.
4. That John Lewis Faber having, upon the death of his mother, taken possession of the property and since that time held it as heir, a purchaser from him would take it discharged from the debts of his mother, although no letters of administration have been taken out upon her estate.
5. That the conveyance tendered by the plaintiff to the defendant would have conveyed to him an absolute estate in the premises.
6. That the plaintiff is entitled to recover from the defendant the sum of twenty-five dollars for his refusal to comply with his contract.
The defendant excepted to the report on the following grounds:
1. That said Referee erred in holding that, under the will of Christian Henry Faber, the legal estate to the land vested by the Statute of Uses in the cestuis que use .
2. That said Referee erred in holding that the limitations by the will of Christian Henry Faber to the issue of John Lewis Faber constituted contingent remainders.
3. That said Referee erred in holding that by the deed of feoffment to L. H. Folker the remainders to the issue of John Lewis Faber and to the residuary devisees were barred and destroyed, and that John Lewis Faber subsequently acquired a valid title to said land.
4. That said Referee erred in holding that the conveyance tendered by the plaintiff to the defendant would have conveyed to him an absolute estate in the premises.
5. That said Referee erred in holding that the plaintiff is entitled to recover from the defendant the sum of twenty-five dollars for his refusal to comply with his contract.
His Honor the Circuit Judge overruled the exceptions and confirmed the report of the Referee.
The defendant appealed on the following grounds:
1. Because under the will of Christian Henry Faber the legal estate in the land did not vest by the Statute of Uses in the cestuis que use .
2. Because the limitations under said will to the issue of John Lewis Faber and to the residuary devisees and legatees of the testator did not constitute contingent remainders.
3. Because the deed of feoffment with livery of seizin to L. H. Folker did not bar and destroy the remainders to the issue of John Lewis Faber and to the residuary devisees under said will.
4. Because His Honor erred in overruling the exceptions to the Referee's report filed herein by the defendant.
5. Because the title tendered by the plaintiff would not convey a fee simple estate.
Ficken , for appellant:
The estate limited to the residuary devisees and legatees of testator in the event of the death of the life tenant without issue constituted vested remainders, and, consequently, could not be destroyed by the deed of feoffment with livery of seizin executed by the life tenant.
" The struggle with the Courts has been for that construction which tends to support the remainder by giving it a vested character." -4 Kent 204; Croxall vs. Shererd , 5 Wall. 268; Seabrook vs. Gregg , 2 S. C., 78.
" The law favors vested estates, and no remainder will be construed to be contingent which may, consistently with the intention , be deemed vested." -4 Kent 203.
" A remainder limited upon an estate tail is held to be vested, though it must be uncertain whether it will ever take place." - Ibid , 204.
" The present capacity of taking effect in possession if the possession were to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, universally distinguishes a vested remainder from one that is contingent." -2 Blackstone's Com., 168; 2 Cruise's Digest, 270.
" It is the uncertainty of the right of enjoyment and not the uncertainty of its actual enjoyment which renders a remainder contingent." - Williamson vs. Field , 2 Sandf. Ch., 533.
" A limitation after a power of appointment as to the use of A for life, remainder to such use as A shall appoint, and in default of appointment remainder to B, is a vested remainder though liable to be divested by the execution of the...
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