There are few appellate level cases involving fee tails.  But here's one from Missouri, so I thought I'd share it with the list.



Daily Development for Tuesday, November 12, 2002


By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of
UMKC School
of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City,



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 (Mo. App. 10/31/02)


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 Missouri statute provides that a remainder in fee to heirs of the body shall be construed to mean those heirs of the body living at the time of the ancestor's death.  This statute, however, appears to be limited to the situation in which the remainder interest follows the death of the ancestor.  Here is the text of that statute:


"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 Missouri law.

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.



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