## Facts

- In 1897, John and Catherine Kost conveyed land to their son, Ross Kost, by warranty deed granting Ross “use and control” for life only, with the fee “at his death to his lawful children,” and the descendants of any deceased child to take that child’s share.
- At execution, Ross had five living children (including Oscar Durant Kost); two additional children were later born, and another child born in 1899 died in infancy.
- Ross possessed the property until his death in 1949; at his death, seven children were living.
- In 1936, before Ross died, Oscar was adjudicated bankrupt, and the bankruptcy trustee conveyed “the interest of the bankrupt” in the land to Marshall C. Foster pursuant to a referee’s order.
- After Ross’s death, the seven surviving children sued for partition, alleging they were the sole owners in common and seeking to declare the trustee’s deed to Foster void as a cloud on title.
- Foster answered and counterclaimed, asserting ownership of an undivided one-seventh interest (Oscar’s share) and seeking partition accordingly.
- The circuit court recognized Foster’s one-seventh interest and ordered partition; Oscar appealed.

## Issues

1. Whether the 1897 deed gave Ross’s then-living children (including Oscar) vested remainders or contingent remainders.
2. If Oscar held a vested remainder in 1936, whether it passed to the bankruptcy estate and was validly conveyed to Foster.
3. Whether Foster could obtain affirmative relief by counterclaim in the partition action to have his interest recognized and partition ordered.

## Decision

- The Supreme Court of Illinois affirmed.
- The deed created a life estate in Ross and vested remainders in his children living at the deed’s execution, subject to open for afterborn children and subject to a substitutional provision for descendants of a deceased child.
- Because Oscar’s remainder was vested, it passed to the bankruptcy trustee and was effectively conveyed to Foster.
- Foster properly sought affirmative relief by counterclaim in the partition suit, and the decree recognizing his one-seventh interest and ordering partition was upheld.

## Legal Principles

- A remainder is vested when an ascertained person exists who would take possession immediately upon termination of the preceding estate, and no condition precedent must occur before enjoyment.
- A gift to a class such as “children” can vest in existing class members at the time of conveyance while remaining subject to open to include afterborn members; this does not make the remainder contingent.
- A substitutional provision directing a deceased child’s descendants to take that child’s share does not, by itself, convert the existing children’s interests into contingent remainders.
- A vested remainder is an alienable property interest that becomes part of the bankrupt’s estate and may be conveyed by the bankruptcy trustee.
- In a partition action, a defendant asserting title may seek affirmative relief by counterclaim to have the interest adjudicated and partition decreed.

## Conclusion

The court treated the deed’s remainder to Ross Kost’s children as vested subject to open, making Oscar’s interest transferable and thus properly conveyed through bankruptcy to Foster; Foster’s counterclaim was an appropriate vehicle to secure recognition of his undivided share and partition.


Kost v. Foster, 406 Ill. 565, 94 N.E.2d 302 (Ill. 1950)