Long v. Long

343 N.E.2d 100, 45 Ohio St. 2d 165, 74 Ohio Op. 2d 287, 1976 Ohio LEXIS 555
CourtOhio Supreme Court
DecidedFebruary 25, 1976
DocketNo.75-356
StatusPublished
Cited by5 cases

This text of 343 N.E.2d 100 (Long v. Long) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Long v. Long, 343 N.E.2d 100, 45 Ohio St. 2d 165, 74 Ohio Op. 2d 287, 1976 Ohio LEXIS 555 (Ohio 1976).

Opinion

Corrigan, J.

I.

The unique issue in this case concerns the nature of the interest remaining in the grantor, Henry Long, after the creation by deed of a fee tail estate which was conveyed by the grantor to his son “Jesse S. Long, and the children of his body begotten, and their heirs and assigns forever. ’ ’

The parties agree that the estate created by the grantor was a fee tail. Pollock v. Speidel (1867), 17 Ohio St. 439.

Appellant maintains that the interest remaining in the grantor is a “possibility of reverter” which is a descendible, devisable estate at the death of the original grantor of the estate tail. Appellant contends that, upon the death of the first donee in tail without issue, the interest then passes to the heirs of the grantor living at his death, and to their descendants.

The appellees, too, maintain that the interest remaining in the grantor of a fee tail estate is a possibility of reverter. Appellees contend, however, that this possibility of [169]*169reverter was not of sufficient quality to descend to an heir until the donee in tail dies without issue. At this point, appellees argue, the possibility ripens into a fee simple estate in the grantor and, where he has predeceased the donee in tail, the estate then passes by the law of intestate succession to his heirs living at the time of the ripening of the possibility.

II.

Considerable confusion exists in the present case because of the term used to designate the nature of the grant- or’s future interest in the property conveyed.

At early common law, prior to the enactment of the Statute of Westminster, 13 Edward I. Chapter 1, De Donis Gonditionalibus, in 1285, the transfer of a fee restrained to some particular heirs exclusive of others, e g., to the heirs of a man’s body, created an estate designated a fee simple conditional. 20 Ohio Jurisprudence 2d 278, Estates, Section 43; 4 Kent’s Commentaries (13 Ed.) 12-14; Pollock v. Speidel, supra (17 Ohio St. 439).

The future interest in the grantor of a conditional fee at common law was generally called a possibility of reversion or right of reverter. The usual practice at common law, however, was for the tenant in tail to alien the land conveyed and afterward repurchase, taking an absolute estate in the land which would descend to his heirs generally and prevent any reversion to the donor. To prevent this practice, the statute de donis was enacted, imposing a restraint upon the power of alienation by the tenant in tail. Prior to the enactment of the statute, a fee simple conditional became absolute upon the birth of issue. By operation of the statute the tenant now held an estate tail and the donor had a reversion of fee simple expectant on the failure of the issue in tail. The tenant could no longer alien, upon his having issue, but the feud (estate) was to remain to the issue according to the form of the gift, i. e., the issue of the donee in tail took per formam doni (by the form of the gift) or from the grantor rather than through any particular tenant in tail. The statute • preserved the [170]*170estate for the benefit of the issue of the grantee and the reversion for the benefit of the donor and his heirs by declaring that the intention of the donor manifestly expressed according to the form of the deed should be observed. Ohio Jurisprudence, supra, at page 278; Kent’s Commentaries, supra, at pages 12, 13; Carroll v. Olmsted (1847), 16 Ohio St. 251; Pollock v Speidel, supra (17 Ohio St. 439).

The real source of the title was the donor, himself, who always retained a reversion expectant upon the failure of issue. Pollock v. Speidel, supra; Richardson v. Cincinnati Union Stockyard Co. (1901), 8 N. P. 213, 11 O. D. 367; Gibson v. McNeely (1860), 11 Ohio St. 131.

It should be noted that the statute de donis did not create the estate tail but rather gave it perpetuity.

More importantly, for purposes of the present case, the statute de donis converted the donor’s bare possibility of reversion or right of reverter into a reversion or fee simple expectant upon failure of issue. Kent’s Commentaries, supra, at page 12. This distinction is important because a reversion in fee is a vested interest or estate and is descendible, alienable or assignable by deed or conveyance, and is also devisable. Ohio Jurisprudence, supra, at page 356, Section 117; Kent’s Commentaries, supra, at page 354; Welsh v. Weyrich (App. 1952), 68 Ohio Law Abs. 584, 123 N. E. 2d 661; Richardson, supra; Gibson, supra.

A reversion is the residue of an estate left in the grantor or other transferor, to commence in possession after the determination of some particular estate transferred by him. A reversion arises only by operation of law and is a vested right. Ohio Jurisprudence, supra, at page 356; 33 American Jurisprudence 668, Life Estates, Remainders, and Reversions, Section 194.

A reversion arises whenever a person having a vested estate transfers to another a lesser vested estate. Since the reversion is the undisposed of portion of a vested estate, it follows that all reversions are vested interests. A reversion is said to be vested because there is no condition precedent to the taking effect in possession other than the termination of the preceding estates. This does not mean, however, [171]*171that every reversion is certain to take effect in possession and enjoyment. The distinguishing feature of the reversion is that it is not subject to a condition precedent to its taking effect in possession, and all other conditions defeating a reversion are regarded as conditions subsequent. 1 Simes & Smith, Law of Future Interests (2 .Ed.), Neversions, Sections 82, 90; 2 Nestatement on Property 525, Section 154.

A reversion is historically distinguishable from a possibility of reverter in that a reversion arises when the estate transferred is of a lesser quantum than the transfer- or owns. A possibility of reverter arises when the estate conveyed is of the same quantum as the transferor owns. Simes, supra, at page 329, Section 282.

111.

In Ohio, the term “possibility of reverter” is used to denominate the future interest remaining in the transferor of a “qualified fee.” Ohio Jurisprudence, supra, at page 357, Section 119; American Jurisprudence, supra, at page 681, Section 204.

Ohio cases have held that this interest is not an estate but only the possibility of having an estate at a future time, and that the estate is vested in the grantee, subject to divestment at a future time. Gilpin v. Williams (1874), 25 Ohio St. 283; Walker Branch of Methodist Church v. Wesleyan Cemetery Assoc. (1896), 11 C. O. 185, 5 C. D. 326, dismissed without opinion, 39 W. L. B. 384 (1898); Cincinnati v. Babb (1893), 4 O. D. 464, affirmed, 55 Ohio St. 637 (1896); In re Vine Street Cong. Church (1910), 20 O. D. 573.

The possibility of reverter is regarded as a lesser interest than the reversion because of the nature of the fee transferred.

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Bluebook (online)
343 N.E.2d 100, 45 Ohio St. 2d 165, 74 Ohio Op. 2d 287, 1976 Ohio LEXIS 555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/long-v-long-ohio-1976.