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Docket Number

Civ. No. 874.

Attorney(S)

F. A. Cromwell, for Appellant. T. J. Butts, for Respondents.

Judges

BURNETT, J. —

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Smart Summary

Summary of Opinion: M. Olive Hall et al. v. S. B. Wright, Civ. No. 874 (Cal. Ct. App., Nov. 18, 1911)

Factual and Procedural Background

This action was for specific performance of a written contract for the purchase of a tract of land in Sonoma County. The parties stipulated the material facts. On April 20, 1883, W. S. M. Wright (the grantor) executed a deed conveying the premises to Mrs. M. O. Hall "for the natural life of the said party of the second part, and then to the heirs of her body begotten forever." At the time of the deed Mrs. Hall had five living children; two of those children have since died and two other children have since been born. Interests of the deceased children were distributed to Mrs. Hall. Mrs. Hall and all living children joined in a deed tendered to the appellant (defendant). One child is a minor; Mrs. Hall was appointed the guardian of that minor and authorized by the superior court to sell the minor's interest.

The only question of law presented by stipulation of counsel was whether the plaintiffs (respondents) then held a present title in fee in the lands that they could convey by deed to the defendant (appellant). The trial court entered a judgment (not detailed in the opinion), and the Court of Appeal reversed that judgment.

Legal Issues Presented

Whether the plaintiffs (respondents) have a present title in fee in the lands involved which they can convey by deed to the defendant (i.e., whether the remainder to "the heirs of her body" created a vested present fee in the children at the time of the 1883 deed or a contingent remainder that does not vest until the death of the life tenant).

Arguments of the Parties

Appellant's Arguments

Relied on Civil Code section 779: a remainder limited to "heirs of the body" of a life tenant are to be treated as taking by purchase (not by inheritance) — i.e., remaindermen take as purchasers under the deed.
Relied on Civil Code section 780: where a remainder is not limited on a contingency defeating the precedent estate, it is intended to take effect only on the death of the first taker (the life tenant). Because the life estate here is not defeasible by any contingency, the estates of the remaindermen do not take effect until Mrs. Hall's death.
Consequently, at the time of the deed the "heirs of the body" had no vested present interest; the two children who later died never had an interest to convey; therefore the deed executed by Mrs. Hall and her children could convey only Mrs. Hall's life estate and not a present fee.
Hypothetical consequences were noted under this construction (e.g., grandchildren potentially taking at the life tenant's death regardless of intermediate conveyances), to illustrate why the remainders should be treated as contingent and vesting at the life tenant's death.

Respondents' Arguments

Relied on Civil Code sections 690 and 694: a future interest only entitles possession at a future period (sec. 690), and a future interest is vested when there is a person in being who would have a right, defeasible or indefeasible, to immediate possession upon the ceasing of the precedent estate (sec. 694).
Argued that the heirs of Mrs. Hall had a vested future interest because at the time of the deed there were persons in being (her then-living children) who would have the right to immediate possession upon the life estate's termination.
Invoked the general rule that a remainder limited to a class vests in those members of the class in esse and answering the description at the time of the instrument (subject to opening for children born before the end of the particular estate), and cited a large number of cases in support.
Argued that the word "heirs" in the deed should be construed to mean "children" to avoid uncertainty (a conveyance to the "heirs" of a living person is ordinarily void for uncertainty unless it is clear the grantor intended "children").
Under this construction, respondents argued the fee was vested because no possibility existed, given the life tenant's age, of the birth of additional heirs.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
County of Los Angeles v. Winans, 13 Cal.App. 234 (109 P. 640)	Held that a conveyance to a mother for life, with remainder to the heirs of her body, creates a contingent remainder; the persons to take and the time of vesting are uncertain at creation and the remainder cannot vest until the death of the life tenant. Section 694 (vested future interest) does not apply to contingent remainders in unborn grandchildren.	The court treated this decision as directly in point and controlling. It adopted the Winans court's reasoning that the remainder is contingent and does not vest until the life tenant's death, and applied that rule to reverse the judgment below.
Fearne on Contingent Remainders and Executory Devises (Butler, 6th ed.)	Articulates the doctrine distinguishing vested and contingent remainders: remainders limited to persons in esse and ascertained are vested; remainders limited to persons not in esse or requiring dubious events are contingent.	The court read Civil Code section 694 in connection with Fearne's exposition (as was done in Winans) and relied on that analysis to conclude the remainder was contingent rather than vested.

Court's Reasoning and Analysis

The court began with the stipulated facts and the narrow legal question—whether the plaintiffs had a present fee title capable of conveyance. It summarized both parties' statutory and doctrinal positions (appellant relying on Civil Code sections 779 and 780; respondents relying on sections 690 and 694 and the general rule concerning class remainders).

The court then identified County of Los Angeles v. Winans as directly on point. In Winans the Court of Appeal had carefully considered the same subject and held that a remainder to "the heirs of the body" of a life tenant is a contingent remainder that cannot vest until the life tenant's death because at the time of creation the identity of those who would take and the time of taking were uncertain. Winans also held that section 694 (vested future interest where a person in being would have the right to immediate possession upon termination of the precedent estate) does not apply to contingent remainders involving unborn grandchildren.

The opinion here explained that the two deeds (the one in Winans and the deed before the court) are virtually identical in their language and must therefore receive the same interpretation. The court observed that the term "then" in the present deed clearly points to the time of expiration of the life estate, reinforcing the interpretation that the remainder takes effect at the death of the life tenant rather than immediately upon the deed's execution.

By aligning the statutes (sections 694 and 780) with the rule explicated in Fearne (as read in Winans), the court concluded that the remainder was contingent and did not create a present fee in the remaindermen. The decision in Winans was characterized as controlling. The trial judge was probably unaware of Winans; regardless, the Court of Appeal applied Winans and reversed the judgment below.

The opinion also notes, as a procedural matter, that a petition to have the cause heard in the supreme court after judgment in the district court of appeal was denied by the supreme court on January 18, 1912.

Holding and Implications

Holding: The Court of Appeal reversed the judgment below, adopting County of Los Angeles v. Winans as controlling authority and concluding that the remainder to "the heirs of her body" is a contingent future interest that does not vest as a present fee at the time of the 1883 deed.

Implications:

Direct effect on the parties: The Court of Appeal's ruling means the respondents did not possess a present fee title capable of conveyance at the time of the tendered deed; the remainder was contingent and would not vest until the death of the life tenant (Mrs. Hall). Accordingly, the judgment in favor of respondents (as entered below) was reversed.
Precedential effect: The court relied on and applied existing precedent (County of Los Angeles v. Winans and the doctrinal exposition in Fearne). The opinion itself does not purport to create a new rule but treats Winans as dispositive and controlling on these facts.

End of summary—prepared from the text of the Court of Appeal opinion (Burnett, J.) dated November 18, 1911.

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M. OLIVE HALL et al., Respondents, v. S. B. WRIGHT, Appellant.

BURNETT, J. —

The action is for specific performance of a written contract for the purchase of a tract of land in Sonoma county. The facts are not disputed and the only question of law presented is, as agreed by counsel, "whether or not the plaintiffs have a present title in fee in the lands involved which they can convey by deed to the defendant." It is stipulated that on the twentieth day of April, 1883, W. S. M. Wright was the owner in fee of the premises, and on that day he executed a deed thereof to Mrs. M. O. Hall "for the natural life of the said party of the second part, and then to the heirs of her body begotten forever." On said date Mrs. Hall had five living children, two of whom have since died and two other children have since been born. The interests, if any, of the deceased children have been distributed to Mrs. Hall, and she and all the living children have joined in the deed which has been tendered to appellant. One of the said children is a minor, and Mrs. Hall has been appointed the guardian of his person and estate, and by an order of the superior court she has been authorized and directed to sell the minor's interest in the property.

Appellant states his case substantially as follows: Section 779 of the Civil Code provides: "When a remainder is limited to the heirs of the body of a person to whom a life estate in the same property is given, the persons, who, on the termination of the life estate, are the successors or heirs of the body of the owner for life, are entitled to take by virtue of the remainder so limited to them and not as mere successors of the owner for life." In other words, the remaindermen take, so it is asserted, as purchasers under the deed and not as heirs of the life tenant. Section 780 of the same code is: "When a remainder in an estate for life or for years is not limited on a contingency defeating or avoiding such precedent estate, it is to be deemed intended to take effect only on the death of the first taker, or the expiration, by lapse of time, of such term of years." It is contended, therefore, that since the life estate vested by the deed in Mrs. Hall was not to be defeated or avoided by any contingency, by the operation of the above section it follows that the estates of the remaindermen are not to be deemed to take effect until the death of Mrs. Hall. There are no words in the grant that preclude the application of the said provision of the code. Hence no "heirs of the body" of Mrs. Hall have any vested interest in the land. The two deceased children had no interest, and therefore Mrs. Hall took no interest from them. They who take the remainder in fee will be those who are the "heirs of the body" of Mrs. Hall at the time of her death. It would follow that if one of the children of Mrs. Hall should die prior to the latter's death, leaving a child, such child would take an interest in fee as a remainderman, although the parent of such child in his lifetime and the lifetime of Mrs. Hall had attempted to convey his interest. If all of the children of Mrs. Hall and all their issue were dead at the time of the termination of the life estate, the remainder would revert, under the deed, to W. S. M. Wright, but since he has died, it would vest in his heirs or devisees. The conclusion is that the children of Mrs. Hall have no present interest in the lands; hence their deed conveys nothing and the deed of M. O. Hall can convey only her life estate.

On the other hand, respondents cite section 690 of the Civil Code, providing that "A future interest entitles the owner to the possession of the property only at a future period," and section 694 of the same code, to the effect that "A future interest is vested when there is a person in being who would have a right defeasible or indefeasible to the immediate possession of the property upon the ceasing of the intermediate or precedent estate," and contends "That under these two sections the interest which the heirs of M. O. Hall would take in the property would be a vested future interest, because at the time said deed was made there were persons in being who would have the right indefeasible to immediate possession of the property upon the ceasing of the life estate of said M. O. Hall." It is also declared that the general rule is that "in the absence of the contrary intention, a remainder limited to a class vests in such of the objects as are in esse and answer the description at the death of the testator if they take by will, or upon the execution of the deed, if they take by deed; subject to open and let in any that may be afterward born before the determination of the particular estate." A large number of cases is cited in support of the foregoing rule.

It is also claimed that the word "heirs," as used in the deed, should be construed to mean "children," for the reason that, under this construction alone is it possible to give effect to the whole of the deed. For the general rule is that a conveyance to the "heirs" of a living person is void for uncertainty, as before his death it cannot be ascertained who will be his heirs, but if the grantor means "children" when he uses the word "heirs," the uncertainty is avoided. Under the foregoing view it is claimed that the whole of the fee is vested, since the age of the life tenant, as stipulated by the parties, precludes the possibility of the birth of another heir.

The case, however, of County of Los Angeles v. Winans, 13 Cal.App. 234, [ 109 P. 640], not cited by either party, is directly in point, and seems altogether decisive of the controversy. In the opinion in that case the subject involved herein received very careful consideration, and it was held, as stated in the syllabus, substantially in the language of the court, that "When property in this state is conveyed to a mother for life, with remainder to the heirs of her body, those interested in the remainder take by purchase and not by inheritance. Such remainder is a contingent interest, future in character, and the person to whom and the time of the happening of the event upon which it is limited to take effect were both uncertain at the time of its creation. Since the uncertainties at the time of the creation of the contingent remainder continue to exist until the death of the life tenant, it did not and could not vest until her death, because she could have no 'heirs of the body' prior to her decease. In the interval all her children may die, and the entire estate might vest wholly in her unborn grandchildren. The interests of unborn grandchildren in the contingent remainder are not void because of the impossibility of the contingency on which they are limited to take effect; nor can such interests be regarded as mere possibilities, such as the expectancy of an heir apparent, as they do not depend upon the law of succession to determine whether or not they will take effect, and they cannot be defeated by the testamentary or other act of the ancestor. Section 694 of the Civil Code relating to a vested future interest 'in a living person' has no application to a future contingent remainder in unborn grandchildren." In discussing this section of the code, the court said that it was in effect the enactment into a statute of the rule laid down in Fearne on Contingent Remainders and Executory Devises, Butler's sixth edition, page 216, and should be read in connection with the language of Fearne which immediately follows it, to wit: "In short, upon a careful attention to this subject we shall find, that wherever the preceding estate is limited, so as to determine on an event which must certainly happen; and the remainder is so limited to a person in esse, and ascertained, that the preceding estate may, by any means, determine before the expiration of the estate limited in remainder, such remainder is vested. On the contrary, wherever the preceding estate is limited so as to determine only on an event which is uncertain, and may never happen; or wherever the remainder is limited to a person not in esse or not ascertained; or whenever it is limited so as to require the concurrence of some dubious, uncertain event, independent of the determination of the preceding estate and duration of the estate limited in remainder, to give it a capacity of taking effect, then the remainder is contingent." The views of the court in the said Los Angeles case, in which a rehearing was denied by the supreme court, are entirely in accord with the contentions of appellant here.

It seems impossible to make any distinction between the deed in that case and the one to be construed by us. By placing in juxtaposition the expressions limiting the estates, we can see that they are almost identical, and must receive the same interpretation. In the former, the deed conveyed the lands to Mrs. Emma Means "for and during the term of her natural life and upon her death to the heirs of her body." Here the limitation is "for the natural life of the said party of the second part and then to the heirs of her body begotten forever." If in the one case the "heirs of the body" take a future contingent, and not a vested, interest, so it must be in the other case. It cannot be doubted that this view gives effect to the ordinary signification of the terms employed and harmonizes the apparently conflicting sections, 694 and 780, of the Civil Code. It may be remarked that the word "then" clearly refers to the time of the expiration of the life estate. The language would be exactly equivalent if it were "for the natural life of the said party of the second part and 'afterward' to the heirs of her body begotten forever."

The attention of the learned trial judge was probably not called to the aforesaid decision. At any rate, it is controlling, and the judgment is reversed.

Chipman, P. J., and Hart, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 18, 1912.

HALL v. WRIGHT