Property I, Pages 295–297

Kost v. Foster

Supreme Court of Illinois, 1950

Facts:

Plaintiff Kost's grandparents gave his father a life estate to some land, which was to pass to his children upon his death. While plaintiff's father was alive, plaintiff declared bankruptcy. During the bankruptcy, the bankruptcy trustee sold plaintiff's interest in the land to defendant.

Procedural History:

Trial court entered a decree for partition on the counterclaim of counterplaintiff defendant Foster.

Issue:

Was the plaintiff's interest a vested remained at the time of the sale by the bankruptcy trustee?

Rule:

Page 296, Paragraph 5

If the conditional element is incorporated into the description of or into the gift to the remainderman then the remainder is contingent, but if, after words giving a vested interest, a clause is added making it subject to being divested, the remainder is vested.

Reasoning:

The language used by the grantors is not conditional in nature. At the time of the execution there were five children of Ross Kost designated as remaindermen and capable of taking immediate possession upon the termination of the life estate. While more children could have been born, it was vested in the five until then. When more were born, it was vested in them as well at that time.

Holding:

Plaintiff had a vested remainder which the bankruptcy trustee could properly convey to defendant. Defendant then did acquire an undivided one-seventh interest in the fee of the real estate subject to the life estate in Ross Kost.

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