Outland v. Bowen

• Decision Date: 12 June 1888
• Docket Number: 12,987
• Parties: Outland et al. v. Bowen et al
• Court: Indiana Supreme Court

17 N.E. 281

115 Ind. 150

Outland et al. v. Bowen et al

No. 12,987

Supreme Court of Indiana

June 12, 1888

From the Wayne Circuit Court.

The judgment is, reversed, with costs.

C. H Burchenal, J. L. Rupe, W. A. Peelle, S. C. Whitesell and B F. Mason, for appellants.

H. C Fox and J. F. Robbins, for appellees.

OPINION

Mitchell, J.

On the 25th day of February, 1855, Joseph Bowen, Senior, executed a warranty deed in the common form, by which he conveyed a tract of land situate in Wayne county to his granddaughter, Rebecca Elizabeth Bowen, for the expressed consideration of eight hundred dollars.

Following the description of the premises conveyed, there was written this stipulation: "The condition of the above deed is such, that if the said Rebecca E. Bowen should die leaving no child or children, the above described land, or its proceeds that may be realized by sale or otherwise, are to fall back to the lawful heirs of Joseph Bowen, Senior; and, also, should the guardian of the said Rebecca E. Bowen see fit to sell the above land, he can, by appropriating the proceeds of the sale to the uses of the said Rebecca E. Bowen while she may live, and then apply the balance, if she should die without heirs of her body, to the heirs of Joseph Bowen, Senior."

Subsequent to the execution of the deed, the grantee was united in marriage with the appellant, Josiah Outland, with whom she lived on the land conveyed until the year 1883, when she departed this life, leaving surviving her no child nor children. Her husband and mother survive as her only heirs at law.

The present litigation involves a controversy between those describing themselves as the lawful heirs of Joseph Bowen, deceased, grantor in the deed above mentioned, and the surviving husband and mother of Rebecca E. Bowen, concerning the title and ownership of the land conveyed by the deed of Joseph Bowen. The final determination of this controversy depends wholly upon the construction to be given to the deed, it being conceded that both parties assert title through that instrument. The inquiry is, what was the duration and quantity of the estate created in Rebecca E. Bowen, the first grantee, and was there a valid remainder or estate of any description limited over to those who now claim as the lawful heirs of the grantor?

It is contended on behalf of the appellants that the estate conveyed to the grantee named in the deed was one which, according to the rules of the common law, would have been adjudged an estate tail, and that since estates of that description have been abolished by statute in this State--section 2958, R. S. 1881, in force since May 6th, 1853--it is now to be construed a fee simple absolute. Without pausing to consider the sometimes apparently artificial refinements, or the numerous technical and ingenious distinctions of the common law in respect to the character of estates in land, we deem it sufficient to state our general conclusion here, and that is, that the estate created by the deed in question, while in many respects bearing some analogy to an estate tail, was not one having the essential characteristics of an estate of that description. Ordinarily, an estate tail is created by a conveyance or devise in fee to some particular person, with a limitation over, in the event of the death of the person named without issue, or upon an indefinite failure of issue. The doctrine of the books seems to be, that whenever it appears in the instrument creating the estate that it was intended that the issue of the first taker should take by inheritance in a direct line, and in a regular order and course of descent, so long as his posterity should endure, and an estate in fee or in tail is given in remainder, upon an indefinite failure of issue, then the estate first created will be construed to be an estate tail. Huxford v. Milligan, 50 Ind. 542; King v. Rea, 56 Ind. 1; Tipton v. La Rose, 27 Ind. 484; Shimer v. Mann, 99 Ind. 190 (50 Am. R. 82); Eichelberger v. Barnitz, 9 Watts 447; Potts's Appeal, 30 Pa. 168; 1 Leading Cases Real Property, 98.

But it is well settled on the other hand, that if it appears from the deed that the limitation over was not postponed until an indefinite failure of issue, but on failure of children only, or on failure of issue within a given time, the estate will not belong to the class known as estates tail. Hill v. Hill, 74 Pa. 173; Nightingale v. Burrell, 15 Pick. 104; Allender v. Sussan, 33 Md. 11.

The deed under consideration created in Rebecca E. Bowen an estate in fee, which was determinable, however, upon the contingency that she should die leaving no child or children. There is nothing in the deed indicative of an intention to limit or restrain the grantee, in the disposition of the estate, in the event she should leave surviving her a child or children. It left the estate to be transmitted to the child or children of the grantee, if any should survive, or to be disposed of by her in such other manner as she might determine, the only limitation or condition being that she leave surviving a child or children. In this respect the deed lacks an essential element in the creation of an estate tail. Moreover, it will be observed that, according to the condition in the deed, if the grantee died without leaving a child or children, it is of no consequence that she may have had children through whom she may have left grandchildren or other lineal descendants. The whole estate was granted to her in fee, but it was made to determine, by a limitation over in fee, upon the contingency of her death without leaving a child or children. Upon the happening of that event, whether soon or late, the land, or in case that had meanwhile been sold or otherwise disposed of, then the proceeds realized, were to vest in such persons, if any there could be, as might at that time occupy the relation of "lawful heirs" to the grantor. The foregoing considerations confirm our conclusion that the estate created in Rebecca E. Bowen was not one which at the common law would have been adjudged an estate tail. Of the estate created by the deed to Rebecca E. Bowen, we may say, primarily it was a fee simple, and, notwithstanding the condition subsequently written in the deed, the estate was liable to become absolute and continue perpetually in the first taker, her heirs and assigns. 1 Washb. Real Prop., pp. 61, 62. This created in her a fee simple conditional, or a fee of a determinable or conditional character. Smith v. Hunter, 23 Ind. 580; Clark v. Barton, 51 Ind. 165; Greer v. Wilson, 108 Ind. 322, 9 N.E. 284; Tiedeman Real Prop., section 26; Gray Rule against Perpetuities, section 14.

It was necessary that two contingencies should arise or exist concurrently in order that the estate created might be defeated. One was, that the grantee of the precedent estate should die without leaving a child or children surviving. The other was, that the grantor prior to that event should have died leaving lawful heirs competent to take the estate limited over. Hennessy v. Patterson, 85 N.Y. 91.

The land was conveyed in fee to the first taker, and it remained uncertain until her death whether the estate conveyed would be defeated by the condition in the deed, or become absolute, and it could not be known until the death of the grantor, who would take as his lawful heirs. Since it was doubtful whether either of these contingencies would happen, the grant created a fee in the grantee, and there remained in the grantor no future estate in reversion, but only what is called a naked possibility of reverter. Tiedeman Real Prop., section 385.

In no event was the estate to revert to the grantor or his heirs so as to give them a right of re-entry as for a condition broken. The estate was to be carried over to the grantor's lawful heirs by the force and effect of the deed. The first taker's estate was, therefore, not an estate upon condition, but it was a conditional or determinable fee with a conditional limitation over. The essential difference between an estate upon condition and an estate in fee, which determines upon the happening of some future uncertain but possible event, with a limitation over, conditioned upon the happening of the event, is, that in the latter case, upon the happening of the event, the estate either reverts to the grantor or is carried by force of the deed to the person to whom it was granted; while in the former, the grantor must have either expressly or by necessary implication reserved to himself or his heirs a right of entry, upon breach of the condition, reentry being necessary to revest the estate. Attorney General v. Merrimack Manfg. Co., 14 Gray 586.

"A conditional limitation is an estate limited to take effect after the determination of an estate, which in the absence of a limitation over would have been an estate upon condition. Strictly speaking, a conditional limitation can not be limited after an estate upon limitation." Tiedeman Real Prop. 281, note; 2 Washb. Real Prop. 562; Brattle Square Church v. Grant, 3 Gray 142; Miller v. Levi, 44 N.Y. 489; Chapin v. Harris, 8 Allen 594; 1 Leading Cases Real Prop 186. Concerning estates upon conditions subsequent, see Cross v. Carson, 8 Blackf. 138. The same case, with valuable note, 44 Am. Dec. 742 (759).

Conditional limitations were not recognized by the common law as estates capable of being created, by the same deed, with a prior estate or limitation. They could only be created so as to become valid and effectual under the statutes of uses and trusts, as shifting uses or executory devises. Tiedeman Real Prop., sections 281, 418.

The second conclusion at which we have arrived is, that the limitation over to the "lawful heirs" of the grantor in the deed in question, whether...