Hall v. Wright

BURNETT, J.

The action is for specific performance of a written contract for. the purchase of a tract of land in Sonoma county. The facts are not disputed and the only question of

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law presented is, as agreed by counsel, “whether or not the plaintiffs have a present title in fee in the lands involved which they can convey by deed to the defendant. ” It is stipulated that on the twentieth day of April, 1883, W. S. M. Wright was the owner in fee of the premises, and on that day he executed a deed thereof to Mrs. M. 0. Hall “for the natural life of the said party of the second part, and then to the heirs of her body begotten forever.’’ On said date Mrs. Hall had five living children, two of whom have since died and two other children have since been born. The interests, if any, of the deceased children have been distributed to Mrs. Hall, and she and all the living children have joined in the deed which has been tendered to appellant. One of the said children is a minor, and Mrs. Hall has been appointed the guardian of his person and estate, and by an order of the superior court she has been authorized and directed to sell the minor’s interest in the property.

Appellant states his case substantially as follows: Section 779 of the Civil Code provides: “When a remainder is limited to the heirs of the body of a person to whom a life estate in the same property is given, the persons, who, on the termination of the life estate, are the successors or heirs of the body of the owner for life, are entitled to take by virtue of the remainder so limited to them and not as mere successors of the owner for life. ’ ’ In other words, the remaindermen take, so it is asserted, as purchasers under the deed and not as heirs of the life tenant. Section 780 of the same code is: “When a remainder in an estate for life or for years is not limited on a contingency defeating or avoiding such precedent estate, it is to be deemed intended to take effect only on the death of the first taker, or the expiration, by lapse of time, of such term of years. ” It is contended, therefore, that since the.life estate vested by the deed in Mrs. Hall was not to be defeated or avoided by any contingency, by the operation of the above section it follows that the estates of the remaindermen are not to be deemed to take effect until the death of Mrs. Hall. There are no words in the grant that preclude the application of the said provision of the code. Hence no “heirs of the body/’ of Mrs. Hall have any vested interest in the land. The two deceased children had no interest, and therefore Mrs. Hall took no interest from them.