Hanson v. Robbins

Decision Date07 July 1923
Docket Number24,658
Citation217 P. 311,114 Kan. 141
PartiesFANNIE E. MCCARTNEY and CLARA P. HANSON, Appellants, v. C. D. ROBBINS, Appellee
CourtKansas Supreme Court

Decided July, 1923.

Appeal from Woodson district court; ROBERT E. CULLISON, judge.

Judgment affirmed.



1. WILL--Devise of Land for Life--Remainder to Life Tenant's Heirs--Wife of Life Tenant Took Contingent Remainder. A will devised land for life, remainder to the life tenant's heirs. Held, the wife of the life tenant, living at the time the will became operative, took a contingent remainder depending on survival of her husband.

2. SAME--Wife of Life Tenant Had Mortgageable Interest. After the will became operative, the husband and wife gave a mortgage on the land, which was foreclosed. Held, the wife had a mortgageable interest in the land which was conveyed to the purchaser at the foreclosure sale by the sheriff's deed consummating the foreclosure proceedings.

3. SAME--Mortgage Foreclosed--Remainder Vested in Grantee in Sheriff's Deed. The wife survived her husband. Held, the remainder vested in the successors in interest of the grantee in the sheriff's deed.

F. J. Oyler, G. M. Lamer, Wallace H. Anderson, all of Iola, and M. C. Rogers, of Fulton, Ill., for the appellants.

G. H. Lamb, and W. E. Hogueland, both of Yates Center, for the appellee.



The action was one of ejectment. The plaintiffs were devisees of remainders after a life estate. Fannie E. McCartney and the life tenant joined in a mortgage which was foreclosed. The defendant claims under the purchaser at the foreclosure sale. Clara P. Hanson recovered. Fannie E. McCartney was defeated, and appeals.

Martha McCartney, owner of a certain section 17, died, leaving a will which devised the south half of the section to her son in fee. The will continued as follows:

"The north half of said section 17 I give to my said son, George L. McCartney, during his natural life, and at his death to his heirs, as the statute in such case provides."

The testatrix died in 1878. At that time Fannie E. McCartney was the wife of George S. McCartney. Clara P. Hanson is their daughter. The record does not show whether she was living when the testatrix died. It is not material. George S. McCartney died in May, 1920. In April, 1886, Fannie E. McCartney and George S. McCartney mortgaged the land to Levi Robbins, to secure payment of a promissory note. What, if any, interest did Fannie E. McCartney have in the land at that time?

The rule in Shelley's case has been abolished in this state, as applied to wills. (Gen. Stat. 1915, § 11808.) Therefore, George S. McCartney was given a life estate only, and his heirs were given the remainder in fee simple. The gift of the remainder was an independent gift to heirs as original takers. What kind of a remainder did Fannie E. McCartney take?

When the will took effect, Fannie E. McCartney was wife of the life tenant, not heir. Whether she would be her husband's heir, and consequently whether she would take anything under the will, depended on surviving her husband. If she had died before her husband, and he had remarried, the second wife, surviving her husband, would have been his heir, and would have taken under the will. Therefore the remainder was contingent.

"That the limitation of an estate by way of remainder in favor of an unascertained person or persons necessarily creates a contingent and not a vested remainder, is recognized by the most authoritative writers, and by numerous decisions. . . .

"A very common instance of a remainder contingent because of uncertainty in the remainderman is presented by the limitation of a remainder to the heirs, or to the heirs of the body, of a living person named, in which case the heirs cannot be ascertained till such person's death, on the principle that there can be no heir to a living person, as expressed in the maxim, Nemo est haeres viventis. So soon as the person named dies, his heirs are ascertainable, and, provided there is no further condition precedent, the remainder immediately vests." (1 Tiffany on Real Property, 2d ed., pp. 486, 488.)

The defendant cites the case of Bunting v. Speek, 41 Kan. 424, 21 P. 288. In that case the will read as follows:

"I will and bequeath to my beloved wife, Nancy Bunting, after all my just debts and liabilities are paid, all the rest of my estate, real and personal, to have and to hold them, together with all rights and privileges thereto belonging, during her lifetime, and then they are to descend to my legal heirs." (p. 426.)

It was held the remainder to heirs of the testator was vested. The moment the testator died his heirs were known. In this instance, identity of the heirs of the life tenant could not be determined when the testator died, but was ascertainable only at death of the life tenant.

In the commissioner's opinion in Bunting v. Speek occurs the following:

"We shall adopt Blackstone's classification and definitions of estates in remainder, both vested and contingent. They are approved by Kent; are more easily understood than those of other text-writers; and better suited to the condition of real property in this state." (p. 432.)

Referring to Blackstone's chapter on Expectant Estates, Chancellor Kent said:

"The doctrine of remainders, whether vested or contingent, is there most ably digested, and reduced to a few simple elementary principles. Its merits have never been duly acknowledged by subsequent writers on the subject. It far surpasses them all, if we take into one combined view, its perspicuity, simplicity, comprehension, compactness, neatness, accuracy, and admirable precision." (4 Kent's Commentaries, Revised ed. 1889, p. 208, note "b.")

Strangely enough, the great chancellor said the New York statute accurately and fully expressed the definition of a vested remainder, although the statute, perhaps undesignedly, changed the common law, and he stated the distinction between a vested and a contingent remainder in terms which placed him at variance with Blackstone. In trying to apply Blackstone's and Kent's rules as though they are identical, many judges besides the commissioner have brought confusion to the law. For observations on the opinion in Bunting v. Speek, see Kirkpatrick v. Kirkpatick, 112 Kan. 314, 319, ff., 211 P. 146.

Concerning the New York statute, Professor Gray said:

"It is doubtful whether this piece of legislative definition was intended to change the common law; but the courts have decided, and it would seem correctly, that it has done so. And it is conceived that the adoption of this view necessitates the decisions of the court of appeals, which at first appear rather startling, that since the abolition of the rule in Shelley's Case a remainder to heirs, after a life estate to the ancestor, is vested." (Gray, Rule Against Perpetuities, 3d ed., p. 83.)

In 1 Tiffany on Real Property, section 137 and note 79, we find the following:

"The distinction between a vested and a contingent remainder lies in the fact that a vested remainder is an estate while a contingent remainder is merely the possibility or prospect of an estate. Whether, in any particular case, a remainder is contingent or vested depends on the construction of the language used, as creating a mere possibility of an estate, or as creating an estate. . . .

"In such jurisdictions as have adopted legislation which precludes the failure of a contingent remainder (post, § 140) one in favor of whom a remainder is limited in fee simple upon a condition precedent which is certain to be satisfied, such as some person's death (Fearne's third class) has more than a possibility of an estate; he has a certainty of an estate, but he has no estate."

Therefore, according to this writer, we have estate, certainty of estate but no estate, and mere possibility of estate. In the case of In re Twaddell, 110 F. 145, the court said:

"A contingent remainder is none the less a remainder because limited to persons not in esse. But such a limitation ex vi termini excludes the alienability or transmissibility of the remainder so long as it remains contingent. If land be devised to one for life and at his death in fee to such of his children as shall survive him, there can be, before his death occurs, no remainderman in esse having capacity to take. In such a case it would seem that the existence of remaindermen cannot be dissociated from their capacity to take, and that, as such capacity cannot exist before their ascertainment by the death of the first taker, they cannot be regarded as in esse before that event, so far as the alienability or transmissibility of any interest or title under the limitation is concerned." (p. 149.)

Whatever Fannie E. McCartney had belongs in Tiffany's lowest grade. Could she accomplish anything by executing an instrument in form a mortgage of it, or was the instrument which she signed, acknowledged and delivered as a real-estate mortgage, void in law?

Let us begin with our feet on the ground. Assume Fannie E. McCartney was of strong constitution, in good health, and had a life expectancy of many years. Assume her husband was on his death-bed, suffering from a fatal disease, which had progressed until he was in a state of coma. Under such circumstances, she would bear a relation to the land which, as things go in this world, would amount to a good deal more than a mere possibility of estate. In fact, there would be only a mere possibility, and that so slight as to be negligible, that she would not have an estate in the land. From a business standpoint, her contingent remainder would have value the practical equivalent of the value of an estate in fee simple.

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