Babb v. Rand

Facts

BABB V. RAND

345 A.2d 496 (1975)

NATURE OF THE CASE: Rand (D), a decedent's heir who claimed a lifetime right to access and occupy certain property, appealed a decision , which affirmed a ruling of the probate court in favor of Babb (P), purchaser of the property.

FACTS: Alma Rand inherited an undivided share of the estate of Henry Rand consisting of vacation property in Maine on which stood a summer home. Alma Rand inherited an undivided share of the estate of Henry Rand consisting of vacation property in Maine on which stood a summer home. Upon her death in 1932, she left two children and three step-children, and in her will made the following provisions now the subject of the instant litigation: '3rd. That the share of the Estate of Henry Rand of the town of Southport, Lincoln County, State of Maine, shall be left to John Freeman Rand in fee simple with the proviso that he shall never deny access or occupation to the several heirs hereinafter named during their lifetime. 4th. The balance and residue of my estate, real and personal shall be divided into five equal parts, one part to my step-daughter, Katherine F. Lavender, one part to my step-daughter, Elizabeth B. Rand, one to my stepson, John F. Rand, one to my daughter, Martha Rand, and one to my son Redford M. Rand, [II] their heirs and assigns forever.' John F. Rand devised his interest in the subject property to his daughter, Frances Garside, who in turn conveyed that interest by deed to P. With the exception of D, the surviving heirs of Alma Rand have given to P, release deeds to any right, title or interest which they may have had in the subject property. The Judge of the Probate Court determined that John F. Rand took Alma Rand's share of the estate in fee simple absolute and that the other heirs referred to in the will took nothing. D appealed this decision to the Supreme Court of Probate. The Justice ruled that the legal effect of the will was to create in John Freeman Rand an estate in fee simple absolute and that the language of the proviso was repugnant to the earlier creation of the fee and therefore null and void. D appealed. D contends that paragraph three of the will is not internally inconsistent and that the effect of paragraphs three and four is to create either concurrent life estates in the five named individuals with a vested remainder in John or a fee simple determinable in John with a possibility of reverter conditional upon his never denying access or occupation to the other named individuals.

ISSUE: Is the primary duty of the court to seek the intention of the testatrix wherein the court must not rewrite the will to conform to its own notions as to suitability of the bequest?

RULE OF LAW: The primary duty of the court is to seek the intention of the testatrix wherein the court must not rewrite the will to conform to its own notions as to suitability of the bequest.

HOLDING AND DECISION: (Weatherbee, J.) Is the primary duty of the court to seek the intention of the testatrix wherein the court must not rewrite the will to conform to its own notions as to suitability of the bequest? Yes. We believe that the testatrix intended to create and did create a fee simple subject to a condition subsequent and that her purpose need not be defeated by the language she chose to use. The words 'fee simple,' standing alone, create an absolute estate in the devisee. Alma Rand's clear intent was to place some kind of limitation upon the devisee. It is an elementary principle of property law that the words 'fee simple' followed by a condition or special limitation create a defeasible fee. Only two types of defeasible fees are of interest here: The fee simple determinable and the fee simple subject to a condition subsequent. A fee simple determinable is a fee subject to a special limitation. The principal difference between a fee simple determinable and a fee simple subject to condition subsequent is that the former expires automatically on the happening or non-happening of a specified event, while the latter is subject to a power in the grantor, called the right of re-entry, to terminate the estate on the happening of a specified event such as, here, a breach of the condition. While no precise and technical words are required to create a conditional fee, terms such as 'upon condition that,' 'provided that,' 'but if' are language usually held to be indicative of that estate. This provision contains no language to suggest an automatic reverter upon breach of the conditions. The estate devised to John under the will of Alma Rand is a fee simple subject to a condition subsequent. This condition creates in the heirs of Alma Rand right of re-entry for condition broken. No one but the heirs-at-law of the testatrix can re-enter for condition broken and until re-entry is made, the estate continues vested in John. Defeasible fees may carry possible uncertainties as to future title status in situations such as this. We cannot hold that the intentions of this testatrix, so plainly expressed, may not be carried out. The property was devised in fee simple subject to a condition subsequent, the condition being that he not deny the designated heirs access or occupation in the estate. P has an interest in fee simple absolute subject to the condition that she not deny access or occupation to any of the remaining designated heirs. D has the right of access and occupation in the subject estate for the duration of his lifetime.

LEGAL ANALYSIS: Upon the breach of a fee simple subject to condition subsequent the grantor has the right to terminate. 

A small excerpt from Dean’s Law Dictionary (www.deanslawdictionary.com): A fee simple subject to condition subsequent may terminate by being cut short or divested by the transferor or his heirs exercising a right of entry. An estate conditioned on the grantor's power to end the estate if a specified named event occurs. The future interest retained is called a power of termination or a right of entry.

The power of termination for breach of a condition subsequent is in New Jersey an assignable and hence a saleable property interest. Southard v. Central R. Co. of New Jersey, 26 N.J.L. 13 (Sup. Ct. 1856); Bouvier v. Baltimore and N.Y. Railway Co., 67 N.J.L. 281 (E. & A. 1902). There is a distinction recognized in the cases between a waiver of the time for performance and a waiver of the performance itself. Kampman v. Kampman, 98 Ark. 328, 135 S.W. 905 (Sup. Ct. 1911); Firth v. Los Angeles Pacific Land Co., 28 Cal. App. 399, 152 P. 935 (App. Ct. 1915); Chalker v. Chalker, 1 Conn. 79, 6 Am. Dec. 206 (1814); Plummer v. Worthington, 321 Ill. 450, 152 N.E. 133 (Sup. Ct. 1926); Ludlow v. New York & H.R. Co., 12 Barb. 440 (1852); Duryee v. Mayor, etc., of City of New York, 96 N.Y. 477 (Ct. App. 1884); Sanderson v. Dee, 67 Okla. 72, 168 P. 1001 (Sup. Ct. 1917); Annotation, 'Condition Subsequent-Waiver-Estoppel,' 39 A.L.R. 2d 1116, at p. 1132. 

A fee simple subject to a condition subsequent is a fee simple estate in land that gives the grantor a discretionary power to terminate the grantee's estate after the happening of a stated event, not certain to occur. Restatement of Property § 45 at 133 (1936 & Supp. 1948). This type of interest is similar to the fee simple determinable in that the language of conveyance must clearly state the grantor's intent to create a discretionary power to terminate the estate he conveys. Lacer v. Navajo County, 687 P.2d at 409 (quoting Restatement of Property § 45 comments i and j at 138-139 (1936 & Supp. 1948). 

Words commonly used in a conveyance to denote the presence of a fee simple estate subject to a condition subsequent include 'upon express condition that,' 'upon condition that,' 'provided that,' or  'if.' Restatement of Property § 45 comments j through o at 139-143 (1936). In J.M. Carey & Brother v. City of Casper, 66 Wyo. 437, 213 P.2d 263, 268 (1950), the court quoted 19 Am.Jur. Estates § 65 at 527 (1939), which said: It is a well-settled rule that conditions tending to destroy estates, such as conditions subsequent, are not favored in law. They are strictly construed. Accordingly, no provision will be interpreted to create such a condition if the language will bear any other reasonable interpretation, or unless the language, used unequivocally, indicates an intention upon the part of the grantor or devisor to that effect and plainly admits of such construction. [Citations.]

A fee estate subject to a condition subsequent is the kind of defeasible estate in fee which does not terminate automatically by the breach or happening of the condition or event specified. Title to and enjoyment of the estate following the occurrence remain in the grantee or his successors until affirmative action is taken by the grantor or his heirs to bring about a forfeiture or reversion of the estate. Mouat v. Seattle, Lake Shore & Eastern R. Co., 16 Wash. 84, 47 Pac. 233 (1896); Lewiston Water & Power Co. v. Brown, 42 Wash. 555, 85 Pac. 47 (1906); Halvorsen v. Pacific Cy., 22 Wn.2d 532, 156 P.2d 907, 158 A.L.R. 555 (1945); Restatement, Property § 57, p. 196; 1 Tiffany, Real Property (3d ed.) §§ 187, 188, pp. 301, 302, 303; 4A Thompson on Real Property (1961) § 1979, pp. 405-410; 2 Powell on Real Property paras. 188, 191, pp. 39, 57. The future interest retained in the grantor under such a grant is termed a 'right of entry' or 'power of termination,' as distinguished from the 'possibility of reverter' existing in a fee determinable estate, and

'. . . In terms of legal operation of the two future interests, the principal distinction is clear: the possibility of reverter takes effect in possession immediately and automatically upon the happening of the event named, whereas, on the happening of the event named in a common law condition subsequent, the possessory estate does not vest immediately in the one having the right of entry for breach of condition. He must first elect to terminate the granted estate before a possessory estate vests in him.' Simes & Smith, The Law of Future Interests § 282, p. 330.

Thus, so far as the law of adverse possession be concerned, it is not conceptually logical for the grantee of a fee estate subject to a condition subsequent to acquire an indefeasible estate simply by remaining in possession of the property following breach of the condition. His continued possession and enjoyment of the property does not become adverse to any possessory estate of the grantor until the latter, or his heirs, elect to declare a forfeiture. Mills v. Pennington, 213 Ark. 43, 209 S. W. (2d) 281 (1948); Thompson v. Simpson, 128 N. Y. 270, 28 N. E. 627 (1891); New York v. Coney Island Fire Dept., 170 Misc. 787, 10 N.Y.S. (2d) 164 (1939), aff'd. 259 App. Div. 286, 18 N.Y.S. (2d) 923 (1940); Restatement, Property §222 Comment g; Simes & Smith, The Law of Future Interests § 258, p. 309. 

© 2007-2024 Abn Study Partner

Issues

Rule of Law

Holding and Decision

Legal Analysis

© 2007-2024 ABN Study Partner.