Grayson v. Tyler's Adm'x
| Decision Date | 14 September 1882 |
| Citation | 4 Ky.L.Rptr. 187,80 Ky. 358 |
| Parties | Grayson v. Tyler's adm'x, & c. |
| Court | Kentucky Court of Appeals |
F. W S. G. devised to his wife and mother portions of his estate during their respective lives, and upon their deaths the residue to be divided between his " nephews and nieces then living that are now, or may before that time, be born." Both wife and mother are dead. In 1851 appellant a nephew, before the death of his mother, sold and assigned his interest in the estate to John W. Tyler.
1. Held --that appellant's interest in the estate was the subject of sale and transfer, and his conveyance is valid in equity, passing to T. all that he was entitled to after the death of the wife and mother of the devisor.
2. It is not satisfactorily proved that Tyler was appellant's attorney when the sale and assignment was made.
APPEAL FROM LOUISVILLE CHANCERY COURT.
HARRISON & MCGRAIN AND R. W. WOOLLEY FOR APPELLANT.
1. The uniform ruling of this court has been, that no sale or transfer is valid unless the thing or right or interest sold or transferred has a potential or actual existence in the vendor. A possibility is not subject to sale or transfer.
2. In Wren v. Hynes, 2 Met., 129, in 5 Dana, 411, and in 11 Bush, 656, this court have fully discussed the distinction between vested and contingent remainders, and the definition of Blackstone of a contingent remainder is approved by this court.
3. It is abundantly proved that, at the time appellant made his sale and assignment to John W. Tyler, the latter was his attorney. A court of equity will not tolerate such a transaction. (Story's Eq. Jur., 218, 219, 311, 314.)
RICHARDS & BASKIN FOR APPELLEES.
1. Courts of equity do not, like courts of law, confine themselves to the giving of effect to assignments of rights and interests which are absolutely fixed or in esse. On the contrary, they support assignments not only of choses in action, but of contingent interests and expectancies. (1 Vesey, 409.)
2. All contingent and executory interests are assignable in equity, and if made for a valuable consideration, will be enforced. .)
3. There is no evidence showing that John W. Tyler was appellant's attorney when the assignment was made.
OPINIONPRYOR JUDGE.
Frederick W. S. Grayson, sr., died, leaving a will by which he made devises to his wife and mother of portions of his estate during their respective lives, " and upon their deaths the said residue to be divided among my nephews and nieces then living, that are now or may before that time be born." His widow and mother are both dead, and this controversy arises as to the interest of one of his nephews in that part of the estate devised to his widow. The nephew, John C. Grayson, who was living at the death of the devisor, on the sixth of September, in the year 1851, sold and transferred to John W. Tyler " all his right, title, and interest, accrued and to accrue, of, in, and to the estate of Frederick W. S. Grayson, deceased, as one of his nephews and devisees." The consideration was seven hundred dollars cash in hand, paid at the date of the agreement. The interest transferred was in personalty.
John Tyler died, and this controversy is between Mary Tyler, his administratrix, and John C. Grayson, the latter claiming that at the date of the sale and transfer to John Tyler he had nothing to assign. That his right to the property or interest in it depending upon his surviving the life-tenant, the mere possibility of survivorship did not give to him either a vested or contingent interest. It is further maintained, that a contingent remainder is not capable of alienation where the person who is to take is not ascertained, or because the remainder may be defeated before it becomes vested.
The contingency upon which the claim of the appellant could be defeated, and no other, was that of his dying before the life-tenant. The nephew and nieces of the devisor living at his death, and thereafter born, such of them as might be living at the death of the life-tenant, were to have the remainder interest. This nephew was living at the testator's death, and had an interest in the estate devised that no one could divest him of by will or deed, and nothing could defeat the devise, so far as he was interested, but the happening of the contingency, viz: his dying before his mother.
In the briefs of counsel, as well as in the oral argument, cases were cited sustaining the proposition that no interest would pass to the assignee or vendee of the contingent devisee in a case like this; and the reported cases are not easily reconciled on the subject; but upon an examination of the more modern authorities, and in fact in the elementary books, it will be found that such contingent interests may be transferred or assigned in equity.
There is a manifest distinction between this case and a mere possibility, such as the expectation or presumption that the child will take from the father. In the latter case the possibility is not coupled with an interest. The estate of the father may be sold or given to some other person, the child may die, and, in fact, there is nothing to sell or convey, and it necessarily follows there is nothing upon which the conveyance or transfer can take hold of.
The transfer in this case is to the nephews and nieces now born and to be hereafter born, such as may be living at the death of the life-tenant. This nephew was living when the testator died, and the clause of the will under which he claims was in fact a devise to him of an interest to be owned and enjoyed by him in the event of his surviving the...
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