In re Camden

• Decision Date: 08 May 1963
• Docket Number: No. 3333.,3333.
• Citation: 217 F. Supp. 634
• Parties: In the Matter of Edward Stuart CAMDEN, Vera Brydges Camden, Bankrupts.
• Court: U.S. District Court — Western District of Virginia

217 F. Supp. 634

In the Matter of Edward Stuart CAMDEN, Vera Brydges Camden, Bankrupts.

No. 3333.

United States District Court W. D. Virginia, Roanoke Division.

May 8, 1963.

Ben M. Richardson, Roanoke, Va., for bankrupts.

Henry J. Foresman, Lexington, Va., for trustee in bankruptcy.

MICHIE, District Judge.

W. H. Brydges of Bedford County, Virginia, died May 7, 1957 leaving a will which was duly probated before the Clerk of the Circuit Court of Bedford County. The will provided in part:

"Item 3: All of the rest, residue and remainder of my estate, whether real, personal or mixed, wheresoever located and whether now owned or hereafter acquired by me, I do give, devise and bequeath to my wife, Margaret L. Brydges, if she survives me, for and during her natural life, with the right, however, in my said wife to use or dispose of all or any part of personal estate during her lifetime.

"Item 4: After the death of my said wife, or if she should predecease me, then I do give and devise unto my daughter, Vera Camden, the wife of E. Stuart Camden, upon the condition that she shall pay into my estate the sum of twelve thousand ($12,000) dollars, in fee simple absolute, all of that certain tract or parcel of land located in Forest Magisterial District, Bedford County, Virginia, on Boonsboro Road on which is located my home in which I am living. I direct that the said sum of tewlve thousand ($12,000) dollars, when so paid be treated as personal property and shall pass as directed in Item 7 hereinafter set forth. In the event my said daughter, Vera, does not comply with this condition, then I direct that my executor hereinafter named shall sell the said property and that the proceeds of said sale shall pass as personal property under the provisions of Item 7 below.

* * * * * *

"Item 7: After the death of my said wife, if there shall be any personal property remaining from my estate not used or disposed of by her during her lifetime, or if she should predecease me, or not otherwise bequeathed by me herein, then I do give and bequeath the same to all my children, jointly and equally, per stirpes."

Mrs. Brydges, the widow of the testator, is still living. Mrs. Camden, who will become the sole owner of the property described in Item 4 of the will upon the death of her mother, subject to the condition of payment of $12,000.00 to the father's estate, is now in bankruptcy. The question involved in the petition for review is whether the Trustee in Bankruptcy can sell Mrs. Camden's interest in the Bedford County property referred to in Item 4 of the will, subject of course to the mother's life estate therein.

Section 70, sub. a of the Bankruptcy Act (11 U.S.C.A. § 110, sub. a) insofar as possibly material provides as follows:

"The trustee of the estate of a bankrupt and his successor or successors, if any, upon his or their appointment and qualification, shall in turn be vested by operation of law with the title of the bankrupt as of the date of the filing of the petition initiating a proceeding under this title, except insofar as it is to property which is held to be exempt, to all of the following kinds of property wherever located * * * (5) property, including rights of action, which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him, or otherwise seized, impounded or sequestered: * * * (7) contingent remainders, executory devises and limitations, rights of entry for condition broken, rights or possibilities of reverter, and like interests in real property, which were nonassignable prior to bankruptcy and which, within six months thereafter, become assignable interests or estates or give rise to powers in the bankrupt to acquire assignable interests or estates; * * *."

The attorney for Mrs. Camden claims that the interest which she has in the Bedford County property is a "contingent remainder" and non-assignable prior to bankruptcy and that it did not become assignable within six months after bankruptcy and therefore is not subject to sale in the bankruptcy proceedings. The attorney for the Trustee however contends that the interest acquired by Mrs. Camden was a vested remainder subject to divestment in the event that she did not pay the sum required to be paid to the executor within a reasonable time after the death of her mother, and that it was therefore transferable by Mrs. Camden and so passed to her Trustee in Bankruptcy. And he further argues that even if it were a contingent remainder it was nevertheless transferable. I agree with counsel for the Trustee and so hold.

In Minor on Real Property (2d Ed. Ribble) at p. 927 a vested remainder is defined to be "a remainder limited to a certain person and on a certain event, so as to possess a present capacity to take effect in possession, should the possession become vacant at any moment."

The devise here involved fits this definition like a glove. It is limited to a certain person, i. e., Mrs. Camden. It is to take effect on a certain event, i. e., the death of Mrs. Brydges. And it is so limited as to possess a present capacity to take effect in possession of Mrs. Camden should the possession of Mrs. Brydges become vacant at any time (of course if Mrs. Camden should die before Mrs. Brydges the remainder which she now owns would pass to her heirs or devisees who would then be the certain persons who would take on the happening of the event).

In the same work a contingent remainder is defined on p. 928 to be "a remainder (1) limited to an uncertain person, or (2) limited upon an uncertain event, or (3) limited to a certain person and on a certain event, but so as not to possess the present capacity to take effect in possession, should...