Oberlander v. Eddington

HALLEY, Vice Chief Justice

(specially concurring).

I concur in the result of the foregoing opinion but arrive at the same conclusion by a different route.

The principal question we have here is who inherited the one-half interest in the land which Wilma Gangloff Eddington was awarded in the probate proceeding in Jackson County ? The husband and father, Plarold Eddington, Sr., contends here that he inherited one-half of the one-half that his wife Wilma took under her father’s will and that her remainder was set aside *894to her in final decree of the County Court of Jackson County on May 20, 1914.

His son, Harold Eddington, Jr., contends that he inherited the half interest that his mother took under his grandfather’s will under the following clause:

“ * * * after the natural term of life of my said dear wife, my remaining real estate shall be divided between my children in as many shares as there be children, share and share alike, and if my children or one, of all, should die, leaving any of their children (in other words my grandchildren) shall have the share of their parents.”

It would appear that if the remainder was vested in Wilma Gangloff Eddington on May 20, 1914, the father, Harold Eddington; Sr., should take a quarter interest in the land as of the death of Mary Gangloff. If this remainder did not vest until the death of Mary Gangloff in 19S6 then Harold Eddington, Jr. should take all of the half interest that his mother would have unquestionably taken had she lived.

I think the case of Whitmore v. Smith et al., 94 Okl. 90, 221 P. 775, is controlling here. The first and second paragraphs of the syllabus in that case are as follows:

“Where a will provides that certain property of the testator shall be rented by the executors during the life of the wife of the testator, and the revenues derived therefrom be equally divided among the children and wife named as legatees, and that after the death of the said wife said property be sold for cash and divided equally among the children, held, that the legal title to the property became vested in the children named as legatees in the will, subject to the interest for life of the widow at the death of the testator, and is such an interest as may be conveyed or devised by the legatees prior to the death of the widow.
“The remaindermen take a vested interest at the death of the testator, under a will giving the wife an interest in property for life, postponing the sale ■ and distribution of the proceeds of same among the legatees, until the death of the wife, when the devise to the legatees is certain and definite as to the interest derived.”

The will that was construed in that case, as was indicated by the above paragraphs of the syllabus, provided a life estate for the wife and at her death the property was to be sold and the proceeds divided among the testator’s children. It was held that the legal title to the property mentioned in the will became vested in the children named as legatees in the will at the death of the testator subject to the interest for life of the widow, and the children took as remaindermen a vested interest.

The will in that case provided that the grandchildren should take the share of their parent in case the parent should die before receiving their share of the estate.

A sale there by the legatees of their interest under the will devising the same to them subject to the life interest of the wife of the testator, after the will was duly probated without objection on the part of the legatees, was held valid.

In that case we quoted with approval from Indiana Ry. Co. v. Morgan, 162 Ind. 331, 70 N.E. 368, as follows:

“Under this rule, during the life estate of the widow, the title to the land in controversy “was not in abeyance, nor in the widow, nor in the executor, but in the beneficiary children of the testator, and subject also to conveyance by them.”

It does not appear that we have passed squarely on the question but other jurisdictions hold that a devise of a remainder to an unborn person is contingent until the birth of such person at which time the remainder immediately becomes vested unless postponed by reason of some other contingency. Reese v. Reese, 190 Md. 311, 58 A.2d 643; Hackensack Trust Co. v. Clark, 141 N.J.Eq. 96, 56 A.2d 129; 96 C.J.S. Wills, § 948, p. 429.

I think that Wilma Gangloff at her birth became the owner of a vested remainder-of *895half of the half section involved in this lawsuit. This being true, the action in 1914 of the County Court of Jackson County, Oklahoma, was correct in declaring that the two sisters were the owners of this half section subject to the life estate of their mother. Our holding in Baldwin v. Chappell, 105 Okl. 38, 231 P. 496, supports my position here. In that case we approved a definition of vested remainder as follows:

“A vested remainder is a present interest in the property which the remainderman may convey by deed.”

I also call attention to the case of Faris v. Nickel et al., 152 Kan. 652, 107 P.2d 721, in which it was held that where á will provided that testator devised all of his estate to his wife for life, with remainder at wife’s death to testator’s children, in fee simple, descendants of any deceased children to take the parent’s share, and testator was survived by his wife and nine children, and one son died before death of life tenant without children but was survived by son’s widow, remainder to children was a “vested remainder”, and son’s interest passed to his widow as his statutory heir, and she could maintain partition for her share of testator’s estate.

For further consideration of vested remainders see 31 C.J'.S. Estates, § 88, sub. par. b.

I have not found that we have passed on the question of whether a vested remainder of a person dying intestate passes to his heirs by the same rules as an estate in possession. It appears that the prevailing rule, and to me the best rule, is that a vested remainder does so pass. 26A C.J.S. Descent and Distribution § 18; Brown v. Brown, 53 N.M. 379, 208 P.2d 1081.

Since one-half of the remainder in the half section in question became vested in Wilma Gangloff,. láter Eddington; at her birth, then at her death even though before the demise of the life tenant the vested remainder passed to her heirs who in this case were her husband and son, each a half of her interest. Therefore the judgment of the County Court of Jackson County as well as the District Court, was correct.

I am authorized to state that WILLIAMS, J., concurs in the views expressed herein.