## Facts

- John B. Franke devised real property to his daughter, Lucile, for life, with the remainder: one-half to Lucile’s “child or children” and one-half to a named Lutheran theological seminary; if Lucile died without surviving children, the seminary would take the entire remainder.
- After the estate closed, Lucile acquired the seminary’s remainder interest.
- Lucile (life tenant and holder of the seminary remainder), joined by her husband and by their two minor children (existing remaindermen) acting through the husband as guardian, contracted to sell the property to Dwight T. Bond.
- Bond refused to close unless a court decree confirmed that the sellers could convey a merchantable fee simple title free of any claim by children born to Lucile in the future.
- The sellers filed a bill for specific performance based on an agreed statement of facts.

## Issues

1. Whether a life tenant, joined by her husband and existing child-remaindermen (through their guardian), can convey merchantable fee simple title free of claims by any after-born children of the life tenant under a class remainder to “child or children.”

## Decision

- The Supreme Court of Florida reversed the chancellor’s decree denying specific performance.
- The court held the sellers could convey a fee simple title free and clear of any claims by after-born children.
- The court determined the title tendered to Bond was merchantable, permitting enforcement of the contract.

## Legal Principles

- When a remainder is devised to a class, and living members of that class are made parties to litigation affecting the property, the resulting decree is binding on the entire class, including members who later come into the class.
- In Florida, the presence of existing class remaindermen in the proceeding can conclusively address concerns about possible future class members for purposes of title marketability.
- A purchaser cannot refuse performance for lack of marketability where a decree, binding on the remainder class, establishes that the conveyed title is free of claims by after-born class members.

## Conclusion

The court held that the life tenant and existing child-remaindermen could, through a binding decree in a class-remainder setting, convey merchantable fee simple title unaffected by potential interests of after-born children, and the purchaser could be compelled to specifically perform the sale contract.


Popp v. Bond, 158 Fla. 185, 28 So. 2d 259 (Fla. 1946)