Opinion
No. 72-162
Decided June 12, 1973. Rehearing denied July 3, 1973. Certiorari denied September 17, 1973.
In action for partition of real property, claimant alleged that her grantor had received, pursuant to his father's will, an indefeasible vested remainder which could be effectively conveyed by him prior to the death of the life tenant. From summary judgment denying plaintiff's claim, plaintiff appealed.
Affirmed
1. WILLS — Life Estate — Remainder to Children — If Children — Shall Have Died — Interest to Descendants — Vested Remainder — Subject to Complete Defeasance. Where testator left his real property to his wife in the form of a life estate with the remainder to pass to his children at her death, but provided that if any of his children "shall have died, leaving descendants" then those descendants would take that child's share, the interest held by each of the testator's children was a vested remainder subject to complete defeasance upon the child's death before the death of the life tenant.
2. ESTATES — Interest of Child — Vested Remainder — Subject to Complete Defeasance — Predeceased — Life Tenant — Interest to Descendants — Deed to Wife — No Claim. Where child of testator held vested remainder subject to complete defeasance upon his death before the death of the life tenant, and where that child predeceased life tenant after having deeded his interest in the property to his wife, the interest received by the wife under the deed was that of the remainderman; and, that interest having passed to the remainderman's descendants upon his death, the wife had no claim to the property.
Appeal from the District Court of Eagle County, Honorable Charles R. Casey, Judge.
Stewart H. Brown, for plaintiff-appellant.
Mincer, Larson and Hartert, Gerald D. Hartert, for defendants-appellees.
Division II.
Martha C. Morris, formerly Martha C. Bailey, brought suit for partition of certain real property. The trial court entered summary judgment denying plaintiff's claim for relief, and she appeals. We affirm.
The facts are undisputed. John W. Bailey died September 16, 1927, testate, owning the subject property. His will provided,
"(3) I give and bequeath to my beloved wife, Harriett A. Bailey, all of my real property, wheresoever situate, for and during her lifetime, and to have absolute control of all lands and to handle as she deems best during her said lifetime. At her death, I will that all real estate which I own at my decease shall be divided equal among my children, namely: Edward J. Bailey [and five other children]. And, if any of my children above named shall have died, leaving descendants, then the share that would go to such child shall go to such descendants."
John was survived by his widow, Harriett, and all six of his children.
By warranty deed dated February 24, 1945, Edward J. Bailey conveyed all of his interest in the subject property to his wife, Martha. On April 24, 1945, Edward died, survived by Martha and two children, the defendants Lois Marie (Bailey) Myers and Harold Edward Bailey. Harriett died on April 13, 1969, and this suit was commenced on October 20, 1969. The dispute here is over the one-sixth interest devised to Edward. Martha asserts ownership under the deed from Edward. Edward's children, Lois and Harold, claim under the will.
Martha claims that the provision of the will is ambiguous, that the law favors a construction which will give rise to early vesting, and that the words "And, if any of my children . . . shall have died" should be construed as applying to the testator's date of death. She contends that since Edward survived the testator, he had an indefeasible vested remainder which could be effectively conveyed prior to the death of the life tenant.
His surviving children (and the other children of the testator — who are all defendants) claim that Edward's interest was contingent upon his surviving the life tenant and was a determinable estate which terminated on his death.
We find no ambiguity in the provision of the will. The first sentence of the paragraph covers the disposition of the property at testator's death; to his wife for life. The following sentences cover the disposition at her death; that is, to the children, or to the descendants of those of the children who "shall have died." In order for a child of the testator to receive his portion it was necessary that he survive both the testator and the life tenant. In Hale v. Wheeler, 108 Colo. 119, 114 P.2d 566, a case involving a similar problem, it is stated;
"In case of doubt as to persons, places, dates, etc. not specifically mentioned . . . we ascertain the intention of the maker by referring to the immediately preceding expression because presumably such was the person, place or date, in the mind of the executor as he wrote."
The rights of the parties are therefore determined by the situation as it existed at the death of the life tenant.
The rights of the parties are similar to those in Barnard v. Moore, 71 Colo. 401, 207 P. 332. In that case a decedent devised real property to his wife for life with the remainder to his six children, but if any child should predecease the widow then his share would pass to his heirs. One child conveyed his interest and then died, survived by the life tenant. The court held that the grantee of the deed took nothing thereby, stating that the child held a "determinable estate" which terminated on the death of the child while the widow was still living. Here Edward's interest ended upon his death, with the life tenant surviving.
Remainders are classified in Restatement of Property § 157 as follows:
"A remainder can be
(a) indefeasibly vested; or
(b) vested subject to open; or
(c) vested subject to complete defeasance; or
(d) subject to a condition precedent."
Comment r. to this section states that a remainder vested subject to complete defeasance "arises when the duration of the remainder is measured by a life which may end before the end of the prior interest." Such is the case here where the measuring life is that of the remainderman, Edward.
[1,2] Edward's interest was a vested remainder subject to complete defeasance upon his death before the death of the life tenant, Harriett. On the termination of the life estate, the interest which would have been his had he lived passed to his descendants, Lois and Harold. The interest which Martha received under the deed was that of the grantor, and that interest having terminated, she has no claim to the property.
Judgment affirmed.
JUDGE DWYER and JUDGE PIERCE concur.