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Citation. 22 Ill.406 Ill. 565, 94 N.E.2d 302 (1950)
Brief Fact Summary. The property in question was conveyed by warranty deed in 1897 as a life estate for Ross Kost with the property at his death (1949) to go to his lawful child or children. At the time of the deed Ross Kost had five children, and at the time of his death he had seven living children. One of the children was bankrupt in 1936 and the trustee of the bankruptcy court conveyed his interest to one Marshall Foster. Facts.
Synopsis of Rule of Law. The remainder is a vested remainder in those remaindermen in being at the time of the deed where there is no clause inserted in the conveyance which would make the remainder subject to being divested.
On December 11, 1897, John Kost and wife Catherine executed a warranty deed which stated that Ross Kost was to have a life estate in the property and at his death the property was to be given over in fee to his lawful children, and the lawful child of children of any deceased lawful child of Ross Kost to have their deceased parent’s share. The deed was filed in 1909. Ross Kost took possession of the real estate and lived there until his death in 1949. At the time of the 1897 deed Ross Kost had five living children. The other two, and one who lived only 13 days, were born after the deed. Appellant Oscar Kost, one of the seven children, was adjudged bankrupt in 1936 and the trustee conveyed Oscar Kost’s interest in the land in dispute to one Marshall Foster, Defendant and Counter-Plaintiff. After the death of Ross Kost, the seven children filed a suit to have the land partitioned. The complaint alleged that the seven children were the sole owners in common of the land, subject t
o easements and the rights of Gilbert Kost as tenant in possession. The complaint further prayed that the trustee’s deed as to Oscas Kost’s right in the property be declared void and removed as a cloud on title, and that the real estate be partitioned. Defendant Marshall Foster answered the complaint that denied the trustee’s deed is void and arguing that Foster is the owner of the undivided one-seventh interest which Oscar Kost had under the deed of 1897. The lower court found in favor of the partition complaint as set forth in Foster’s counterclaim, and Oscar Kost appealed. Issue.
Was the interest of Oscar Kost a vested remainder at the time of the purported sale by the trustee in bankruptcy?