There are few appellate level cases involving fee
tails. But here's one from
Daily Development for
By: Patrick A.
Randolph, Jr.
Elmer F. Pierson Professor of
Of Counsel: Blackwell Sanders Peper Martin
Kansas City,
prandolph@cctr.umkc.edu
ESTATES IN LAND; FEE TAIL; STATUTORY MODIFICATION: Under statute providing that grant in fee
tail shall be construed to create a life estate in the grantee, with remainder
in fee simple to those persons who would be the heirs of the body of the
grantee, a grant of a remainder to the "heirs of the body" of A
following a life estate in B will create a vested remainder in those persons
who were the "heirs of the body" of A at A's death, and there is no
requirement that such persons be alive at B's death.
Hess v. Proffer, No. 244774 (
In 1958, Grantors apparently simultaneously, executed and
delivered two deeds of the same parcel.
The first deed transferred an interest to George Franklin
Proffer, for life, with a remainder for life to his spouse, Margueritte
Proffer, and "then to the bodily heirs of said George Franklin
Proffer."
The second deed (which in fact was not recorded until after
George's death), transferred basically the same life estate to George with a
life estate thereafter to Margueritte "and at
her death to the heirs of the body of George Franklin Proffer." No explanation is given as to why the two
deeds were used and why the second was later recorded.
Like many states, Missouri has modified grants in fee tail
by statute, making a grant in fee tail into a grant of a life estate to the
first grantee, with a vested remainder in fee in those persons who would be the
"heirs of the body" of the life tenant. Here is the text of that statute:
"Where a remainder shall be limited to the heirs, or
heirs of the body, of a person to whom a life estate in the same premises shall
be given, the persons who, on the termination of the life estate, shall be the
heir or heirs of the body of such tenant for life shall be entitled to take as
purchasers in fee simple, by virtue of the remainder so limited in them."
George Proffer died in 1966, survived by four children. His wife, Margueritte,
survived him and died in 2002. One of
George's children, Charles, died in 1974, with a single heir, his daughter
Stephanie. Stephanie, in turn, died in 1990, and devised her property to the
Respondents in this case.
Anyone who survived the estates in land portion of a first
year law school Property Law class will know that the basic question here is
whether Charles' interest vested at the time of his father's death, even though
the time for distribution of the estate did not occur until almost thirty years
later, when Charles' mother died.
Another
"Where a remainder in lands or tenements, goods or
chattels shall be limited, by deed or otherwise, to take effect on the death of
any person without heirs, or heirs of his body, or without issue, or on failure
of the issue, the words 'heirs' or 'issue' shall be construed to mean heirs or
issue living at the death of the person named as ancestor. (Emphasis
added.)"
Thus, the court was faced with construing the intent of the
grantor in a situation in which the grantor used language whose effect the
legislature had significantly altered.
Those arguing against Respondent's position pointed out that in the
first deed, the grantors had stated that, following Margueritte's
death the property would "then" go to the heirs of George's
body. They argued that the persons who
were the heirs of George's body should be determined as of the death of Margueritte, not the death of George.
The court, however, noted that there is a general
constructional presumption favoring early vesting. Further, a prior case had stated that the use
of adverbs such as "then" do not necessarily reflect the time for
vesting of an interest:
"[W]e also note that adverbs of time, such as
"then," "thereafter," "when," etc., appearing in
conveyances or devises of remainder interest in property are held to refer only
to the enjoyment and possession of the property by remaindermen,
and generally do not postpone the vesting of the remainder interest."
Hence, when George died, Charles became a cotenant with his
siblings, and at his death his interest passed to Stephanie, who validly
devised the interest to Respondent, who now can realize upon that interest.
Comment 1: It may be that the grantors were aware of the
statutory reformulation of the "heirs of the body" construction, and
thus the result reached by the court is consistent with their intent, even
though it apparently results in the property passing to strangers to their
blood line upon the end of Margueritte's life
estate. It may well be, however, that
the grantors believed that the traditional fee tail language was effective to
keep the property in their family. In
that circumstance, it may well have been that, if asked, they would have
preferred a construction that accomplished that result for as long as possible
under
They didn't get that.
Comment 2: The fact is, however, that early vesting is a
common and desirable approach for a variety of policy reasons, and
consequently, where the grantor's intent in fact is vague,
the early vesting approach is generally sound.
Comment 3: One wonders whether estate tax returns filed by Charles and Stephanie's estates took this property into account. Hmmmm.
Readers are urged to respond, comment, and
argue with the daily development or the editor's comments about it.
Items in the Daily Development section
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