Grosvenor v. Bowen

• Decision Date: 02 July 1887
• Citation: 15 R.I. 549,10 A. 589
• Parties: GROSVENOR and others v. BOWEN.
• Court: Rhode Island Supreme Court

10 A. 589

15 R.I. 549

GROSVENOR and others

v. BOWEN.

Supreme Court of Rhode Island.

July 2, 1887.

Bill in equity for specific performance.

James Tillinghast, for complainants. Edward C. Dubois, for respondent.

DURFEE, C. J. This is a suit by the complainants, claiming to be owners of a lot of land in East Providence, to enforce the specific performance of a contract with them by the defendant for the purchase of said lot. The suit is amicable, the defendant being willing to perform his contract if the complainants can make a good title in fee-simple. The bill, which is demurred to, sets forth the title as follows, to-wit: The estate formerly belonged in fee-simple to Rosa Ann Grosvenor, who died intestate, leaving five children, who inherited it subject to the curtesy of her surviving husband. One of said children died intestate, without issue, so that his share descended to the others. Another of said children, to-wit, Alice G. Mason, wife of John G. Mason, died later, leaving a will by which she devised all of her real estate which she inherited from her mother to said John for life, and upon his decease to such person or persons, and upon such limitations and conditions, as he might by his last will and testament name, limit, and appoint, and, in default of such appointment, to her own heirs at law. The heirs at law of Mrs. Mason are William Grosvenor, Jr., Rosa Ann Grosvenor, and James B. M. Grosvenor, who, together with William Grosvenor, surviving husband of Rosa Ann Grosvenor deceased, and said John G. Mason, devisee for life under the will of said Alice, are the parties complainant in this suit. The entire estate is in them, if those of them who are the heirs at law of Mrs. Mason took vested remainders under her will; no question being made but that the interest inherited by Mrs. Mason from her deceased brother descended upon her death to her surviving brothers and sisters; and therefore they can make a clear title to the defendant if John G. Mason, devisee for life and donee of the power of appointment under the will, can release the power, or can extinguish it by joining with the other owners in a conveyance of the lot in fee-simple.

Upon the question whether estates limited in default of appointment are to be considered as vested or contingent during the continuance of the power, there has been some diversity of decision. In Lovies' Case, 10 Coke, 78, decided in A. D. 1614, and in Walpole v. Conway, Barnard. 153, decided in A. D. 1740, such remainders were held to be contingent; but later, in Cunningham v. Moody, 1 Ves. Sr. 174, (A. D. 1748,) they were held to be vested, subject to be divested by the execution of the power; and in Willis v. Martin, 4 Term R. 39, the latter view was affirmed after great consideration upon elaborate arguments; and Chancellor Kent says: "The doctrine is now definitely settled, and it applies equally to personal estate." 4 Kent, Comm. 324; also Osbrey v. Bury, 1 Ball & B. 53. We think the estate in remainder vested in the heirs at law of Alice G. Mason, subject to be divested by the execution of the power given to John G. Mason.

We think it was competent for John G. Mason to release the power to the tenants in remainder, or to extinguish it by joining with the...