Steele v. Robinson

• Decision Date: 27 October 1952
• Docket Number: No. 4-9765,4-9765
• Citation: 251 S.W.2d 1001,221 Ark. 58
• Parties: STEELE et al. v. ROBINSON et al.
• Court: Arkansas Supreme Court

Page 1001

251 S.W.2d 1001

221 Ark. 58

STEELE et al. v. ROBINSON et al.

No. 4-9765.

Supreme Court of Arkansas.

Oct. 27, 1952.

Clarence Clifton, Memphis, Tenn., J. H. Spears, West Memphis, J. W. Kirkpatrick and John B. Mack, Memphis, Tenn., for appellant.

Armstrong, McCadden, Allen, Braden & Goodman and Lowell W. Taylor, Memphis, Tenn., Hale & Fogleman, Marion, and Barrett, Wheatley & Smith, Jonesboro, for appellee.

GEORGE ROSE SMITH, Justice.

This is an effort by the two surviving bodily heirs of Sallie Haden to regain two 160-acre tracts that have been out of the Haden family's possession for about twenty-five years. In 1895 the property was conveyed to the plaintiff's ancestor, Sallie Haden, and to her heirs by J. T. Haden. Sallie Haden, after having obtained deeds from her own children, sold the land to the Bank of Crittenden County in 1926. The appellees, remote grantees of the Bank, rely upon the title conveyed by Sallie, Haden in 1926. The main question in the case is whether Sallie Haden had a life estate with (a) a vested remainder in her children or (b) a contingent remainder in her bodily heirs.

In the court below the chancellor sustained demurrers to the separate complaints filed by the two appellants. These complaints, with their exhibits, allege that in 1895 C. A. Jenkins conveyed this land to Sallie Haden 'and unto her heirs by her present husband, J. T. Haden, and assigns forever.' It is shown that J. T. and Sallie Haden had eight children in all. One died in infancy, without issue, before the execution of the 1895 deed. Three others died in infancy, without issue, between 1900 and 1911. In 1912 the four surviving children gave their mother, Sallie Haden, a warranty deed to the property. Their father, J. T. Haden, died in 1917, and in 1918 these four children again conveyed the land to their mother, this time by a quitclaim deed.

One of the four children, Carrie, died without issue a few months after the execution of the quitclaim deed in 1918. Another, Hugh, died in 1922, leaving as his only descendant a daughter, Huella Haden Steele, who is one of the two plaintiffs. In 1926 Sallie conveyed the land to the Bank. The next death was that of Sallie herself, who died January 4, 1948. Thirteen days later one of her two surviving children, Thurman, died intestate and without issue. The fourth child, Irene Haden Cockrill, is still living and is the other plaintiff. In short, the two plaintiffs are Sallie Haden's child and grandchild.

It is the plaintiffs' contention that the 1895 deed conveyed a life estate to Sallie Haden with a contingent remainder to her bodily heirs. From this premise it is argued that under the long line of cases beginning with Horsley v. Hilburn, 44 Ark. 458, Sallie's children had no interest which they could convey during their mother's lifetime. Upon this theory it is contended that upon Sallie's death in 1948 the remainder vested in equal thirds in Thurman Haden and the two plaintiffs. It would follow that upon Thurman's death the plaintiffs inherited his interest and became the sole owners of the land.

The plaintiffs' chain of reasoning depends for its validity upon the initial assertion that the deed to Sallie Haden created a contingent remainder in her bodily heirs. If, on the other hand, that deed created a vested remainder in Sallie's children it is evident that the children transferred their interest to Sallie, and she in turn conveyed a perfect title to the Bank.

In theory the distinction between a vested and a contingent remainder is clear-cut, but in practice the distinction is apt to be troublesome, since the language in a particular deed or will may fall very near the borderline. Although in this case we need not undertake a complete analysis of the subject it is essential to distinguish the three classes of remainders that are involved in the arguments presented.

It is familiar law that all remainders may be divided into four classes, and at any given moment every remainder belongs to one and to only one class. Rest., Property, § 157. First and simplest is the indefeasibly vested remainder, such as that created by a grant to A for life with remainder to B. Here B owns the fee subject only to A's life estate; B's interest may be transferred during his lifetime or upon his death, although it does not become a possessory estate until the life tenant dies.

Almost equally simple is the remainder that is vested subject to open and let in afterborn members of the class. Here the typical grant is to A for life with remainder to his children, as distinguished from his bodily heirs, issue, etc. This remainder vests upon the birth of A's first child, but it opens up to admit other children later born to A. Thus the membership in the class may increase; but it cannot decrease, since the interest of a child who predeceases A passes by will or intestacy--still subject to open and let in additional children. In our reports the case of Jenkins v. Packington Realty Co., 167 Ark. 602, 268 S.W. 620, may be cited as a typical illustration of this type of remainder.

The third class of remainders, one that is vested subject to defeasance, is not involved in the case at bar. See Rest., Property, § 157, Comments o to t.

Last is the contingent remainder, which is in most cases contingent because the identity of the remaindermen cannot be definitely ascertained until the occurrence of some future event, such as the death of the life tenant. Our leading case is Horsley v. Hilburn, 44 Ark. 458, where the deed was to Marietta Hilburn and the heirs of her body. In that case we adhered to the traditional common law conception of a contingent remainder's character and alienability, as modified by our fee tail statute. Ark.Stats.1947, § 50-405.

In the case before us the deed was to Sallie Haden 'and unto her heirs by her present husband, J. T. Haden.' This is manifestly a borderline case; for the reference to Sallie's 'heirs' by J. T. Haden could mean either her children, in which case the remainder is vested subject to open, or her bodily heirs in general, in which case the remainder is contingent.

After studying this question for some months we have concluded that, upon the authority of Shirey v. Clark, 72 Ark. 539, 81 S.W. 1057, the reference to Sallie Haden's heirs by J. T. Haden meant her children, and therefore the remainder was originally vested subject to open. In the Shirey case the conveyance was from A. W. Clark to his wife, Emily Clark, 'to have and to hold during her life or widowhood * * * and after her death or future marriage, then to the heirs of the said A. W. Clark by the said Emily Clark.' We held that the remainder was vested rather than contingent, for the reason that the word 'heirs' meant children. 'What other meaning could attach to the words 'heirs of said A. W. Clark by the said Emily Clark.?' They could only mean the children of the said A. W. Clark by the said Emily Clark then living. The maxim, 'Nemo est haeres viventis,' does not apply here, because the word 'heirs' as used, evidently means children in esse. The intention of the grantor in the deed must prevail, and it is evident by the use of the words 'heirs of said A. W. Clark by the said Emily Clark' he could have meant nothing else than the children of the said A. W. Clark by the said Emily Clark.' In several other cases we have held that, in the particular circumstances, a reference to heirs was intended to mean children. Wyman v. Johnson, 68, Ark. 369, 59 S.W. 250; Powell v. Hayes, 176 Ark. 660, 3 S.W.2d 974; Taylor v. Cammack, 209 Ark. 983, 193 S.W.2d 323, noted in 1 Ark.L.Rev. 182.

Even though the deed in the Shirey case was so similar to the deed to Sallie Haden that we regard the earlier case as controlling, it is nevertheless true that the Shirey opinion is open to a dual interpretation. There we said that the reference to A. W. Clark's heirs by Emily Clark could only mean the couple's children then living. This language of the...