Greer v. Parker

• Decision Date: 07 January 1946
• Docket Number: 4-7782
• Citation: 191 S.W.2d 584,209 Ark. 553
• Parties: Greer v. Parker
• Court: Arkansas Supreme Court

191 S.W.2d 584

209 Ark. 553

Greer v. Parker

No. 4-7782

Supreme Court of Arkansas

January 7, 1946

Appeal from Lee Chancery Court; A. L. Hutchins, Chancellor.

Reversed.

Daggett & Daggett, for appellant.

Hal B. Mixon, for appellee.

OPINION

Millwee J.

This is a suit by appellant, Anna C. Greer, for specific performance of a contract of sale of 120 acres of land situated in Lee county, Arkansas, made December 7, 1944 between appellant and appellee, A. C. Parker. In the contract of sale, appellee agreed to pay $ 3,600 on delivery of a valid warranty deed conveying a merchantable title. In his answer appellee admitted execution of the contract of sale and tender of a deed, but alleged in defense that the deed tendered by appellant did not convey a merchantable title. The cause was submitted to the trial court on an agreed statement of facts, and a decree was rendered dismissing the complaint for want of equity.

T. A Cathey died August 15, 1911, leaving two children, Anna C. Gardner (now Greer, appellant herein) and Mary Rainey, as his only descendants. The last will and testament of T. A. Cathey, which was probated August 26, 1911, designated appellant as executrix and trustee of the testator's property, and contained a provision necessary for a determination of the issue raised by the appeal, as follows:

"In other words, I will and direct that after the payment of my debts and expense of administration, my estate may be divided equally between my two daughters, Mrs. Anna C. Gardner and Mrs. Mary Rainey. However, I desire that Mrs. Gardner's portion shall pass to her absolutely, while as to Mrs. Rainey's portion, she will simply receive the income or interest thereon during her life, and at her death said portion or interest will go to her children or their descendants, as above set out."

According to the agreed statement of facts, appellant duly settled the estate of T. A. Cathey and fully accounted to Mary Rainey for all property devised to her under the will. Mary C. Rainey is a widow 66 years of age and the possibility of issue is extinct. She has two children, Anna R. Ivens, 45 years of age, and Ellen R. Vincent, 37 years of age. On January 8, 1926, in order to repay appellant for funds advanced to Mary Rainey and children in excess of the amount due from the estate of T. A. Cathey, they, Mary Rainey, Ellen R. Vincent, and Anna R. Ivens conveyed to appellant by warranty deed all their interest in the land involved herein.

The sole question presented by the appeal is whether the children of Mary C. Rainey took a vested, or contingent remainder under the terms of the will of T. A. Cathey. If the remainder is vested, then their interest passed to appellant under the warranty deed of January 8, 1926, and the deed tendered by the latter to appellee conveyed a merchantable title.

Many cases involving the subject of contingent and vested remainders have reached this court. In the case of McKinney v. Dillard & Coffin Co., 170 Ark. 1181, 283 S.W. 16, this court had under consideration the following language of a will: "I give to my daughter, Mary V. McKinney, during her natural life, the following described tracts: . . . and at her death I give and devise the same lands to her children in equal portions, and if at the time of Mary V. McKinney's death any of her children be dead leaving children, then such child or children is to have the same interest in said lands that said parents would have had if alive."

In considering the language of the will in that case this court said: "Appellants contend for a reversal of the decree upon the ground that, under the will, they took a contingent remainder in the real estate, which was not subject to partition, and for that reason the court was without jurisdiction to render a decree dividing the land in kind. In other words, they collaterally attacked the decree of partition as being void. The correctness of their attack must depend upon the construction placed upon the provision of the will quoted above. The law favors the vesting of estates as early as possible. Booe v. Vinson, 104 Ark. 439, 149 S.W. 524; McCarroll v. Falls, 129 Ark. 295, 195 S.W. 387. In applying this doctrine, where a life estate was given to parents and to their children after their death, share and share alike, it was ruled by this court that the remainder vested as soon as the child was born and before the life tenant died. Jenkins v. Packingtown Realty Company, 167 Ark. 602, 268 S.W. 620. Also in the case of Black v. Bailey, 142 Ark. 201, 218 S.W. 218, this court ruled that the testator did not intend to create a contingent remainder in the appellants in that case in the lands he devised to them under a provision similar to the provision in the will in the instant case. The provision of the will in the Black case, supra, is as follows:

"'Provided, that if any of my children should die before the expiration of the above trust, hereinbefore created, leaving issue, said issue shall only take the share that should go to my children if living.'

"This court said the language quoted was a mere declaration of the law of descent and distribution and not an expression of an intention to create a remainder interest in the grandchildren. We think the instant case is ruled by the Jenkins and Black cases, supra, and that the remainder estate vested in fee simple in Mrs. McKinney's children, subject to her life estate. . . ."

In the case of Jenkins v. Packingtown Realty Co., supra, the will provided: "I will and devise the east half of my said plantation to my son, James Hayes Jenkins, and his wife, Josephine, to hold, use and occupy and enjoy for and during the term of their natural lives, for the support and education of their children, and, after their death, to be equally divided between their children, share and share alike." There, this court said: "We think that the language used by the testator presents a case of a devise in remainder to a class of persons, whether in being at the time or not, and that the remainder vested immediately upon the coming into being of any one of that class. In other words, we think that the case is one which falls within the rule announced by the Supreme Court of the United States in Doe v. Considine, 6 Wall. (U. S.) 458, 18 L.Ed. 869, as follows:

"'A devises to B for life, remainder to his children, but, if he dies without leaving children, remainder over, both the remainders are...