Landers Investment Company v. Brown

*354 RAGLAND, J. — This action was instituted by the filing of a bill of interpleader. The controversy here, as in the court below, is between- certain of the defendants who claim adversely to each other rents accruing under a ninety-nine-year lease of real estate. There is no dispute as to the facts. On April 29, 1909, Lizzie M. Sittler was the owner in fee of a tract of *355 land in Springfield, Missouri. Blanche Sittler was her only child and heir apparent. On that date Lizzie M. Sittler and Blanche Sittler by a certain indenture demised the real estate just referred to to John T. Woodruff for a term of ninety-nine years from the first day of May, 1909. The only part of the- lease material to the issues here was the covenant therein providing for the payments of rent. It was as follows: To have and to hold the said lot of ground and all and singular the premises thereto belonging or in anywise appertaining unto the said party of the second part [John T. Woodruff] and unto1 his heirs, executors, administrators and assigns for a term of ninety-nine years from and after the 1st day of May, 1909, the'said party of the second part, his heirs, executors, administrators and assigns yielding and paying for the same unto the said Lizzie M. Sittler for and during her natural life, then [to] said Blanche Sittler for and diuring, her natural life, if she survives her mother, then upon the death of Lizzie M. Sittler and Blanche Sittler to Lizzie M. Sittler’s heirs, administrators and assigns, the yearly rental or sum of $1000, for the first ten years and $1200 per year for the remainder of the term, without any deductions whatever, in quarterly payments of four installments of $250' each for the first period and $300' per quarter for the remainder of the term, in lawful money of the United States, the first pajunent of which is to be made on the first day of -May next, and thereafter on the first day of August, November, February and May, in each and every year of said term.” At the time of the execution of the lease Lizzie M. Sittler was fifty-six years of age and had been a widow since the death of her husband in 1887. Blanche, her daughter, was twenty-seven years of age. She was single but prior to that time had been married twice. She was an actress traveling from place to place in the practice of her profession. No children had ever been born'to her: Lizzie M. Sittler, while still a widow, died June 28, 1916. Blanche married the defendant James L. Crane, *356 December 22, 1913. They continued to live together as husband and wife until her death, which occurred Dlecember 22,1916. No children were born of this marriage. Had Lizzie M. Sittler died immediately following the death of her daughter, Blanche, her heirs would have been the defendants Della Brown, Laura M. Scott, Tarsia M. Short, Linder Middlesworth, Noah Middlesworth, Arthur Middlesworth and Tarsia Houston, her sisters, brothers and niece respectively. As Blanche Sittler Crane died without leaving any children or other descendants in being, or any father or mother, brothers or sisters, or descendants of either, her surviving husband, the defendant James L. Crane, is her heir' at law. By successive assignments the plaintiff, The Landers Investment Company, became and now is the holder of the leasehold. All, rents under the lease were paid as they accrued to Lizzie M. Sittler until her death, then to Blanche Sittler until her death, and then to the defendant Ferguson, administrator of the estates of both, until the institution of this suit. The controversy is between defendant Crane, as heir of his wife Blanche, and the defendants who would have been the heirs of Mrs. Sittler had she died after the demise of her daughter. The court adjudged that the latter were entitled to the rents and from that judgment the defendant Crane prosecutes this appeal. I. Upon the death of Lizzie M. Sittler, the fee in the leased premises passed by inheritance to her daughter Blanche Chañe, and upon the death of the latter the fee descended under our Statute of Descents and Distribution to the defendant, James L. Crane. If it were not for the covenant in the lease with respect to the payn~ent of rents, there would be no question but that they would goto Crane as incident to the reversion. The validity of the provision that the rents should be paid to “Lizzie M. *357 Sittler’s heirs,” upon the death of both her and Blanche, is therefore the subject of contention. Appellant claims that the provision is testamentary in character, in that no present interest vested under it, it merely evidencing an intention on the part of Lizzie M. Sittler to make a gift to taire effect in the future. "While rent to accrue usually accompanies and is incident to the reversion, it is not inseparably incident. The owner of the reversion may convey it, reserving the rents, and he may thereafter assign the rents to' another. [16 R. C. L. 909.] The lease giving rise to this controversy is not set out in full in the abstract of the' record but so far as appears the periodical payments therein provided for are merely sums in gross secured by personal covenants. " The 'contract in that respect is therefore of the same character as a bond for the payment of moneys by annual installments during a period of ninety-nine years. The transaction effected through the lease by Mrs. Sittler was therefore neither more nor less than the purchase by her of an annuity for a term of ninety-nine years. So far as she was concerned the contract of purchase and sale became fully executed and irrevocable. She conveyed the leasehold andi delivered possession of the demised premises. The lessee, his personal representative and assigns, in turn became bound to make the quarter-annual payments according to his covenant and not otherwise. It is now well settled that interests for life and in expectancy, by analogy estates, can be created in personal as well as in real property. Future interests or gwasi-remainders, operating in analogy to remainders or executory devises, may be created in money and other personalty, and they may be created by either deed or will and without the intervention of a trustee. [Keen and West v. Macey, 6 Ky. 39; State ex rel. v. Welch, 175 Mo. App. 303.] Upon the execution of the lease contract there was created 'in praesenti, in the quarter-anmial payments therein provided for, successive life es *358 tates in Lizzie M. Sittler and in Blanche Sittler, and an estate in remainder, expectant'upon their termination, in the “heirs” of Lizzie M. Sittler. That such remainder was contingent is of no consequence. [21 G. J. 1043.] A contingent remainder in personalty, although executory in nature, is such a present interest as to be alienable, descendible and devisable. [21 C. J. 1047.] The interests of the remaindermen under the instrument under consideration did not arise as gifts from Lizzie M. Sittler, but from grants made by John T. Woodruff, based upon a present valuable consideration moving from said Lizzie M. Sittler. II. It is contended by appellant that the word “heirs” in the phrase, “Lizzie M. Sittler’s heirs,” is to be talien in its usual and ordinary sense as meaning the persons on whom the law casts an estate upon the death of the ancestor. If it were used in that sense, then Provisio*s ^ie lease specifically naming the persons to whom the quarter-annual payments should be successively made were wholly superfluous, serving* no purpose whatever. Without .them the rents would have gone to Mrs. Sittler during her lifetime as incident to the reversion, and at her death, Blanche, taking the fee by inheritance, would for like reason have been entitled to the rents. In view of the circumstances surrounding the parties at the time of the execution of the lease it is manifest that they anticipated the possible happening* of the very events that did happen, namely, the death of Blanche, after the decease of her mother, without issue, but leaving a husband surviving her, and that the provisions of the lease with respect to the payments thereunder were inserted for the purpose of preventing* the rents from going to a stranger to the blood, upon the happening of such contingencies. It is clear that “Lizzie M. Sittler’s heirs” wtere used as words of purchase and not of limitation, and comprehended those persons who, “upon the death of Lizzie M. Sittler and *359 Blanche Sittler” would have been the former’s heirs had the latter predeceased her. III. Appellant further asserts that the limitation over after the life estates of Lizzie M. Sittler and Blanche Sittler is void because in violation of the rule against perpetuities. But in this it is plain that he is mistaken. It required the interests of the remaindermen to- vest immediately upon the death of the survivor of two lives in being at the time of the execution of the instrument creating the interests, whereas, the period allowed by the rule included an additional twenty-one years. There are some other contentions, but what we have said fully disposes of them. The judgment of the trial court is affirmed. All concur.