Waldon v. Baker

• Citation: 88 P.2d 352,184 Okla. 492,1939 OK 82
• Decision Date: 07 February 1939
• Docket Number: 28488.
• Parties: WALDON et al. v. BAKER et al.
• Court: Oklahoma Supreme Court

88 P.2d 352

184 Okla. 492, 1939 OK 82

WALDON et al. v. BAKER et al.

No. 28488.

Supreme Court of Oklahoma

February 7, 1939

Rehearing Denied March 21, 1939.

Syllabus by the Court.

1. A devise to the testator's children, leaving to each an undivided interest in the life estate in all his lands, with remainder in fee limited upon each of said interests to the respective surviving issue of each life tenant, and, in default of such issue, over in fee to testator's surviving children, constitute contingent remainders, and valid suspension of alienation, and such remainders are not subject to partition.

2. The vested owners in possession of an undivided interest in the fee simple estate in lands, and the life tenants, owners of the particular estate upon which a contingent remainder in the balance of the fee simple estate is limited, are tenants in common in the life estate in said lands, and such life estate is subject to judicial partition.

3. A judicial partition of the life estate in lands among the tenants in common thereof is without force or effect to partition the contingent estates in remainder limited upon the respective interests in the life estate.

4. Where land is devised to one for life with contingent remainder in fee simple to another, the title to the land remains in the testator's heirs, or his residuary legatees, as the case may be, subject to divestiture upon the happening of the designated contingency.

5. It is the duty of the life tenant to pay all general taxes assessed against the land, and a tax deed procured by him will inure to the benefit of the remainderman or reversioner.

Appeal from District Court, Grady County; Will Linn, Judge.

Action in ejectment and to quiet title by Hosea Waldon and others against Ben F. Baker and others. From an adverse judgment the plaintiffs appeal.

Judgment reversed and cause remanded, with directions.

Hatcher & Bond, of Chickasha, for plaintiffs in error.

Melton McElroy & Vaughn, of Chickasha, for defendants in error.

GIBSON Justice.

This action is one in ejectment and to quiet title, instituted by plaintiffs in error against defendants in error, and others. The parties will be designated in the order of their appearance at the trial.

Plaintiffs claim title to the premises as alleged devisees of a remainder in fee therein under their father's will. The will had been duly probated, distribution had according to its terms, final settlement made, and the estate closed.

The aforesaid will devised to the testator's widow an undivided one-seventh interest in and to all the deceased's lands, and a like interest to the children of a then deceased child of the testator. To each of the living children, consisting of these plaintiffs, and a son, Byrd Waldon, since deceased, the will devised "an undivided one-seventh (1/7) interest in all the farm land owned by me at the time of my death, * * * during their natural life, creating a life estate, the fee to descend to their children, as follows:" Then follow separate paragraphs, all in identical words, except each one names a different living child. Omitting name and sex of devisee, as indicated, each paragraph reads as follows: "To my (son, or daughter, naming him, or her), I give, bequeath and devise during (his or her) natural life, an undivided one-seventh (1/7) interest, the fee to descend to the issue of (his or her) body."

The sixth paragraph of the will follows the above devises, and is in the following language: "I further direct that should any of my children die without living issue or children of living issue, then the fee shall go to my living children in equal parts."

Subsequent to the settlement of the estate in county court as aforesaid, all the devisees in esse became parties to a partition suit in district court wherein the lands of the testator were divided in kind among said devisees. The fee simple title to a certain tract was set aside and confirmed to the widow, and a certain portion in fee to the children of the deceased child. To each of the living children a life estate in separate parcels was set aside, in the following language: "A life estate in and to the following described land (describing it) is hereby vested in (naming child), the fee to descend to his children."

In that action the will was construed and, as to the children, these plaintiffs and Byrd Waldon, now deceased, was interpreted as leaving to each of said children an undivided one-seventh interest in the life estate, with remainder in fee to the issue of his body.

The present action is by the living children of testator to recover the fee simple title to that portion of the lands in which a life estate was vested in Byrd Waldon who died without issue. They assert that by virtue of the sixth paragraph of the will devising to them a remainder in fee in default of children of the life tenant, they are entitled to possession and to have the fee simple title quieted in them.

We gather from the record that the defendant Ben F. Baker claims fee simple title to the premises by virtue of a quitclaim deed procured from Byrd Waldon, and by a tax deed thereafter acquired by Baker. He asserts that the aforesaid judgment in partition and the order therein confirming the report of commissioners vested the fee simple title in the said Byrd Waldon, and that the plaintiffs are now bound by that judgment, and estopped to assert any right under the sixth paragraph of the will, above, purporting to devise to them a remainder in fee on default of issue surviving Byrd Waldon.

The judgment in the partition suit seems to have been silent concerning the sixth paragraph of the will.

After the issues were settled defendants moved for dismissal, contending that the pleadings disclosed no right in the plaintiffs to maintain the action. This motion was sustained, with prejudice to future action. The appeal is from that order.

The motion to dismiss is equivalent to a motion for judgment on the pleadings, and will be so treated. We are therefore to determine from the facts pleaded which of the two asserted claims was the superior one.

Without doubt, the will passed to each of the living children a life estate in an undivided one-seventh interest in all the testator's lands and, in addition thereto, the remainder in fee and in co-tenancy to the survivors in event of death of any of said children without surviving issue. Aside from their respective fractional life estates, the will passed to or created in the testator's children merely a contingent remainder in fee to those respective interests.

The contingency was failure of surviving issue of the life tenant of each interest. 69 C.J. 635, sec. 1725; Id., 655, sec. 1749.

A remainder in fee limited to the children or the heirs of the life tenant's body, though such heirs be unborn at the time of the grant, is recognized by statute as a valid grant. Sec. 11766, O.S. 1931, 60 Okl.St.Ann. § 41. A remainder made contingent upon the failure of such heirs cannot vest until such failure becomes a settled fact. The latter is a contingent remainder and may not vest until failure of surviving issue of the life tenant becomes certain....