Foster v. Stowers

The opinion of the court was delivered by Thiele, J.: This was an action to quiet title. Defendants appeal from an order overruling their demurrer to plaintiff’s petition. The petition alleged that prior to July 12, 1922, John T. Kerfoot owned the involved real estate, and on the above date he and his wife conveyed the real estate to their daughter, Virginia Nell Kerfoot, by warranty deed, a copy of which was made part of the petition; that thereafter Virginia "Nell Kerfoot married one Henry Stowers. The defendants are their children. The children were born prior to October 27, 1936, on which date Virginia Nell Kerfoot Stowers and her husband conveyed a part of the land to Ethel M. [600] Beymer by warranty deed. On December 14, 1938, Mrs. Stowers and her husband conveyed the remainder of the land to Phillip Shell. By subsequent conveyances the plaintiff became the owner of the entire tract. Plaintiff alleged that the defendants, the children of Virginia Nell Kerfoot Stowers, claimed some interest in the real estate, and that such claims constituted a cloud on his title, and he prayed that his title be quieted as against the defendants. The deed above mentioned is abstracted as follows: In the caption the grantors are John T. Kerfoot and Elsie V. Kerfoot, his wife, and the grantee is “Virginia Nell Kerfoot, daughter of the grantors.” The granting clause recites that the first parties grant and convey “unto said party of the second part, during her life” certain described real estate. Immediately following the description is the following statement: “The intention of this deed is, That the said Virginia Nell Kerfoot shall have a life estate in the property hereby conveyed, and after her death the heirs of her body shall share equally in the said property.” The habendum clause is: “To have and to hold the same, ... to the said party of the second part during her life and after her death to the heirs of her body in equal shares.” In the warranting clause the grantors covenant they will warrant and defend “unto said party of the second part, during her life, and after her death to the heirs of her body in equal shares.” The gist of appellants’ contention is that the above deed gave the grantee a life estate only, with a remainder in the heirs of her body, here the defendants, and that they have an interest in the real estate which cannot be cut off by the action to quiet title. Appellee contends that the deed created an estate tail in Virginia Nell Kerfoot and her subsequent deeds cut off the entailment and vested a fee-simple title in his grantees. Appellant places some reliance on Meyer v. Meyer, 147 Kan. 664, 78 P. 2d 910, wherein it was held: “A devise to A for life, with remainder in fee simple to the heirs of the body of the life tenant, creates a life estate with a contingent remainder, and not a fee tail.” (Syl.) After that opinion was filed, a rehearing was allowed, as a result of which the court concluded that the above ruling was contrary to the established rule in this state, and should not stand. In the opinion on the rehearing, Meyer v. Meyer, 149 Kan. 23, 86 P. 2d [601] 493, a review of some of our decisions was made, and it was said they had established a rule of property in this state, and it was held that: “A devise to A for life, remainder in fee simple to the heirs of his body, creates a fee-tail estate in A.” A résumé of the history of estates tail may be found in Ewing v. Nesbitt, 88 Kan. 708, 129 Pac. 1131, and reference to the efforts made to abolish such estates in Kansas may be found in Gardner v. Anderson, Trustee, 116 Kan. 431, 227 Pac. 743. In the last case an estate tail was defined: “An estate tail or fee tail is a freehold estate in which there is a fixed line of inheritable succession limited to the issue of the body of the grantee or devisee, and in which the regular and general succession of statutory heirs at law is cut off.” (Syl. It 3.) This definition has been followed in subsequent cases. (See Woodley v. Howse, 133 Kan. 639, 3 P. 2d 475; Brann v. Hall, 141 Kan. 749, 43 P. 2d 229.) Appellants have cited a number of cases in which an apparently contrary result was reached. All may be distinguished from the instant case. In Klingman v. Gilbert, 90 Kan. 545, 135 Pac. 682, language in a will was construed. Assuming it open to a contention an estate tail was created, no such contention was made, nor does the opinion discuss such an estate. The contention was whether a disposition was obnoxious to the rule against perpetuities. In Miller v. Miller, 91 Kan. 1, 136 Pac. 953, a deed was made to a son for life, remainder to his wife under certain conditions and remainder in fee to the heirs of his body. The father filed the deed for record. The son refused to accept. Later the father sought to cancel the deed. It was held refusal of the son to accept the deed did not accelerate the remainder and that recording of the deed by the grantor made it effective to all persons who did not dissent. The question of whether the deed might have created an estate tail was not raised, was not discussed and was not decided. In Grossenbacher v. Spring, 108 Kan. 397, 195 Pac. 884, it was held the will created an active trust, vested the title in trustees and did not create an estate tail in the beneficiary grandchildren. In Browne v. Boone, 129 Kan. 786, 284 Pac. 436, there was specific provision that the life-tenant devisee in the will and the life-tenant grantee in the deed should have no power of alienation. In Berthoud v. McCune, 130 Kan. 634, 287 Pac. 904, it was held that the limitation over was upon [602] definite failure of issue and an estate tail was not created for that reason, and a similar result was reached in Burnworth v. Fellerman, 131 Kan. 186, 289 Pac. 433. In Brann v. Hall, supra, the language used did not cut off the regular and general succession of the statutory heirs. In Coleman v. Shoemaker, 147 Kan. 689, 78 P. 2d 905, a trust was also held to have been created. In that case is a review of some of our cases to which reference is made. Under our decisions there is no doubt but that the words used in the deed before us were appropriate to and did create an estate tail. The demurrer admits the execution and delivery of warranty deeds by the grantee. The legal effect of those latter deeds was to cut off the entailment. It follows that appellants’ contentions they were possessed of interests in the lands cannot be sustained. It may be observed that the provisions of Laws of 1939, chapter 181, section 2, that the rules of the common law pertaining to estates tail shall not be applied in this state, apply only to instruments becoming effective after the effective date of the act. The judgment of the lower court is affirmed.