Love v. Lindstedt

Mr. Justice McBride delivered the opinion of the court. 1-4. One phase of this case was before the court in Love v. Walker, 59 Or. 95 (115 Pac. 296), and we there [72] held that the will and codicil gave plaintiff a life estate in the property with a remainder over to his issue. Frank Souers and Inita Souers, now Inita Souers Dixon, the grandchildren of plaintiff, were living at the time of the death of Lewis Love, and they therefore had a contingent remainder, because the fee in any event could only vest in such of them as survived plaintiff: 1 Tiffany, Real Property, § 120. The remainder over to the devisees is a contingent remainder, being conditional upon an event which may never occur, namely, the death of plaintiff without issue surviving him. Nevertheless, the devisees had a vested interest in the contingent remainder which they could convey: Dunwoodie v. Reed, 3 Serg. & R. (Pa.) 435; Putnam v. Story, 132 Mass. 205. The case first cited is conclusive as showing that where there are alternative remainders, and the vesting of the second depends upon the failure of the first, and the same contingency decides which one of the two alternative remainders shall take effect in possession, the rule that a remainder cannot be limited after a fee has no application. In the instant case the remainder over to the issue of plaintiff in case of his death, they surviving, and the further provision for a remainder over to the devisees of decedent in case no issue of plaintiff should be alive at his death, are alternative remainders conditioned upon the occurrence of one contingency, namely, the death of plaintiff; and, under the rule last stated, the bequest to the devisees of decedent‘constitutes a contingent remainder and not an executory devise: Dunwoodie v. Reed, supra. The courts will, if possible, construe a future estate to be a contingent remainder rather than an executory devise: 40 Cyc. 1645; Burleigh v. Clough, 52 N. H. 267 (13 Am. Rep. 23); Waddell v. Rattew, 5 Rawle (Pa.), 231; Watson v. Smith, [73] 110 N. C. 6 (14 S. E. 640, 28 Am. St. Rep. 665). At common law all contingent estates could be released to tbe tenant for life: 1 Tiffany, Real Property, § 129(b). Under the more modern doctrine all estates in land, whether in fee or remainder, may be conveyed by deed. Some of the authorities hold that such deeds operate only equitably by way of estoppel, and others, that the contingent interest passes directly. The latter we think the better rule in this state as being more in conformity with the spirit of our Code: Section 7100, L. O. L.; 1 Tiffany, Real Property, pp. 306, 307. The interest of possible unborn children of plaintiff is a contingent remainder, as is also the interest of possible unborn children of Fred D. Love, and, with the exception of such unborn children, the interest given to the other devisees in the will, while contingent as to the event which will cause it to devolve, is a vested interest so far as the persons who are to enjoy it are concerned. 5. This brings us to a consideration of the effect of the conveyances of the grandchildren of plaintiff and of those of the devisees upon the contingent remainder of the possible unborn children of plaintiff and Fred D. Love; there being no such possibility in the case of Mrs. Stafford, who is 74 years old. If plaintiff should die leaving only these two grandchildren, or one of them, surviving him, there is no question but that by their conveyance the title in fee would be in his estate; and the remainder .over to the devisees would fail. Remote contingent remainders not being favored in law, it has always been in the power of the tenant for life to extinguish his life tenancy and convert it into a fee simple by merging it with the ultimate estate; and this is what has happened here. The plaintiff has a conveyance from every living being upon which the [74] estate could devolve upon termination of his life estate. These interests, contingent as to their occurrence, but vested as to the persons who should enjoy them, have become merged with the life estate, and thereby remainders remotely possible are destroyed. The reason for this is that the conveyance of the ultimate estate destroys the life estate, and, as the contingent remainders are predicated upon the life estate, they fall with the foundation upon which they are built. “Contingent remainders may be defeated, by destroying or determining the particular estate upon which they depend, before the contingency happens whereby they become vested. Therefore, when there is a tenant for life, with divers remainders in contingency, he may, not only by his death, but by alienation, surrender or other methods, destroy and determine his own life estate before any'of those remainders vest; the consequence of which is that he utterly defeats them all”: 2 Blackstone, p. 172. For this reason Blackstone relates that a device was invented of interposing trustees having a legal estate upon which the contingent remainders might rest to preserve them from annihilation by a merger of the life estate. The •rule is thus stated in 4 Kent, Com. (10 ed.), page 284: “If the particular estate determine, or be destroyed before the contingency happens on which the expectant estate depended, and leave no right of entry, the remainder is annihilated. * * The particular estate in the tenant in tail, or for life, may be destroyed by feoffment or fine; for these conveyances gain a fee by disseisin, and leave no particular estate in esse, or in right, to support the contingent remainder, (d) So, if the tenant for life disclaimed on record, as by a fine, a forfeiture was incurred upon feudal principles; and if the owner of the next vested estate of freehold entered for the forfeiture, the contingent remainder was [75] destroyed, (a) A merger, by the act of the parties, of the particular estate, is also equally effectual as a fine to destroy a contingent remainder, (b) But with respect to this doctrine of .merger, there are some nice distinctions arising out of the case of the inheritance becoming united to the general estate for life by descent; for, as a general rule, the contingent remainder is destroyed by the descent of the inheritance on the particular tenant for life. Out of indulgence, however, to last wills, the law makes this exception: That if the descent from the testator or the particular tenant be immediate, there is no merger; as if A devises to B for life, remainder to his first son unborn, and dies, and the land descends on B as heir at law. Here the descent is immediate. But if the fee, on the death of A had descended on C, and at his death on B, here the descent from A would be only mediate, and the contingent remainder to the unborn son of B would be destroyed by merger of the particular estate on the accession of-the inheritance. Mr. Fearne (c) vindicates this distinction, and reconciles the jarring cases by it; and it has been since judicially established, in Crump v. Norwood [7 Taunt. 362] (d).” To like effect, see Bennett v. Morris, 5 Rawle (Pa.), 9; Dunwoodie v. Reed, supra; Archer v. Jacobs, 125 Iowa, 467 (101 N. W. 195). Upon the whole case we are satisfied that by the conveyances before mentioned the contingent remainders of possible unborn children of plaintiff and Fred D. Love have been annihilated, that plaintiff is the owner in fee simple of the property in controversy, and that his title thereto is marketable. The decree of the Circuit Court is therefore affirmed. Affirmed. Mr. Justice Bean took no part in the consideration of this case. Mr. Chief Justice Moore, Mr. Justice Benson, Mr. Justice Eakin and Mr. Justice Harris concur. Mr. Justice Burnett concurs in the result.