Kost v. Foster
94 N.E.2d 302, 406 Ill. 565 (1950)
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Rule of Law:
A remainder granted to a class of persons, such as 'children,' is a vested remainder if there is at least one living member of the class at the time of the grant, even if the remainder is subject to open to let in after-born children or is subject to divestment upon a future condition.
Facts:
- On December 11, 1897, John and Catherine Kost executed a deed for a parcel of real estate.
- The deed granted the property to their son, Ross Kost, 'to have and to hold use and control for and during his natural life only.'
- The deed specified that 'at his death' the property would go 'to his lawful children.'
- At the time the deed was executed, Ross Kost had five living children, including Oscar Durant Kost.
- Ross Kost later had more children, for a total of eight (one of whom died in infancy).
- In 1936, Oscar Durant Kost was declared bankrupt.
- A trustee in bankruptcy sold Oscar's purported interest in the real estate to Marshall C. Foster.
- Ross Kost, the life tenant, died on March 8, 1949.
Procedural Posture:
- The children of Ross Kost, including Oscar Durant Kost, filed a complaint for partition in the circuit court of Fulton County against Marshall C. Foster.
- The complaint sought to declare the trustee's deed conveying Oscar's interest to Foster void.
- Foster filed an answer and a counterclaim, asserting ownership of Oscar's one-seventh interest and requesting partition of the property.
- The trial court overruled the plaintiffs' motions to dismiss Foster's counterclaim.
- The circuit court held a trial and entered a decree for partition in favor of Foster based on his counterclaim.
- Oscar Durant Kost, as plaintiff and counterdefendant, appealed the circuit court's decree to the Supreme Court of Illinois.
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Issue:
Does a deed granting a life estate to a son, with the remainder 'at his death to his lawful children,' create a vested remainder in a child who is alive at the time of the grant, making the interest transferable and subject to sale in bankruptcy proceedings?
Opinions:
Majority - Mr. Justice Daily
Yes. A deed granting a life estate with the remainder to the life tenant's lawful children creates a vested remainder in children who are alive at the time of the grant. The chief characteristic of a vested remainder is the present capacity to take effect in possession should the possession become vacant. Here, Oscar Durant Kost was a person in being, ascertained and ready to take possession immediately upon the death of the life tenant, Ross Kost. The uncertainty was not of the right itself, but of the quantum of the interest, as the class of 'lawful children' could open to admit more members, thereby diminishing each child's share. The court distinguished this from a contingent remainder, where the gift itself is conditional, such as a grant 'to such of his children as survive him.' The language 'at his death' merely refers to the time of possession, not the time of vesting. Therefore, Oscar Kost's interest was a vested remainder that was properly conveyed by the trustee in bankruptcy to Foster.
Analysis:
This case solidifies the legal preference for the early vesting of property interests. It clarifies that an interest can be vested, and therefore alienable and subject to creditors' claims, even if it is not possessory and its exact size is subject to change. The court's distinction between a condition incorporated into the gift (contingent) versus a condition added after the gift (vested subject to divestment) provides a crucial analytical framework for interpreting deeds and wills. This precedent strengthens the position of creditors against debtors who hold future interests in property.
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