58 Neb. 539 | Neb. | 1899
This action was instituted in the court below by Catherine Walther to have adjudicated whether she possessed a life estate in the undivided one-third of certain portions of lots 7 and 8, in block 58, in Falls City, and to recover the value of one-third of the rents of such real estate. On *' iv nr .TO'lfc the trial a decree was entered in her favor as prayed, and for the sum of $72 as.rents. The defendant appeals. Sub-. sequently plaintiff died, and the cause has been revived in this court in the name of Charles T. Burchai’d, executor of her last will and testament. Thére is no controversy over the facts, and they may be briefly summarized as follows: On May 10, 1883, one J. P. C. Walther, being the owner of the real estate in controversy, execnted and delivered to his granddaughter, Julia E. C. Walther, without any compensation therefor*, a warranty deed for the land, containing this clause: “Said J. P. C. Walther reserves possession and life estate, in the premises during his natural life, and his son, Charles F. Walther, after
The important question presented is whether the deeds executed by the said J. P. C. Walther to his granddaughter conveyed a contingent estate in the property to the said Catherine Walther. If any estate passed to her, it was by virtue of the clauses in the deeds heretofore quoted. It will be observed that in each instrument possession of the property, and a life estate therein, were re
In Hurd v. Hurd, 20 N. W. Rep. [Ia.] 740, a reservation in the deed of a grantor of “a life estate from year to year” during the natural life of herself and husband was held to be a reservation of an estate continuing during their joint lives. That was a contest between the grantor and grantee. It is an authority for the position that a contingent life estate vested in the husband of the grantor.
In Bassett v. Budlong, 43 N. W. Rep. [Mich.] 984, a hus
The decision upon which most reliance is placed by the plaintiff is Martin v. Cook, 60 N. W. Rep. [Mich.] 679. There the clause was inserted in the deed made by William H. Martin, reserving to the grantor and his daughter named an estate for the lives of both in the property. The clause was held as constituting an exception to the grant in the deed; in other words, that the fee passed to the grantee by the deed subject to an estate for the lives of both the grantee and his daughter. But the court did not decide in that case that the deed passed to the daughter a contingent life estate in the property and that the same became absolute on the death of the father. The quantum of the estate which passed to the grantee was determined. McGrath, G. J., in delivering the opinion of the court, observed: “The language here used must, we think, be treated as excepting from the grant the use and enjoyment of the land conveyed during the lives of both father and daughter, as effectually as though that reservation had been for a fixed term of years, extending beyond the life of the father, and at the death of the father, the right to that use for the unexpired portion of the period must be held to have descended to the heirs of William H. Martin. This construction gives to the grantee the estate which both parties to the instrument evidently intended that he should take. It does not appear from the record that petitioner is the sole heir. The record will therefore be remanded, with directions to set aside the order heretofore entered, for the proper determining that question, and the entry of an order, after such hearing, in accordance with this opinion.” It is clear from the language
Reversed and remanded.