You have asked for legal advice on issues regarding a Warranty Deed executed on December
6, 1983 by J.P. J~. Specifically you have asked: 1) Does Mr. J~ retain ownership as
a joint tenant, along with the other individuals identified in the Warranty Deed?;
2) Does Mr. J~ have a life estate (or remainder) to the property without ownership
rights?; 3) Are Virginia M~, Jerry J~, and Zebedee J~ the owners of the property,
remaindermen, or both owners and remaindermen?; and 4) Does J.P. J~ retain ownership
rights to the property while having a life remainder?
In a Warranty Deed executed on December 6, 1983, J.P. J~ conveyed a tract of land
located in New Madrid County, Missouri to himself for life with the remainder in fee
simple to go to Virginia M~, Jerry J~ and Zebedee J~, as joint tenants and not as
tenants in common.
1. With respect to your first question, we conclude that Mr. J~ is not a joint tenant
with the other named individuals. As noted above, Mr. J~ conveyed to himself a life
estate, and to the other named individuals a fee simple estate. A life estate is an
estate which is not terminable at any fixed or computable period of time and has its
duration measured by the life or lives of one or more persons. Cornelius J. M~, Introduction
to the Law of Real Property § 9 Life Estates at 43 (2nd ed. 1988). On the other hand,
a fee simple estate is the largest estate known to the law: it denotes the maximum
legal ownership, the greatest aggregate of rights, powers, privileges and immunities
which a person may have in land. Id. § 2 The Fee at 26. It is an estate of general inheritance and it is of potentially
infinite duration. Id. §3 Modern Law-Creation and Characteristics of a Fee Simple at 31. In order to have
a joint tenancy, the following four essential elements must exist: 1) the joint tenants
must have one and the same interest (unity of interest); 2) the interests must accrue
by one and the same conveyance (unity of title); 3) the interests must commence at
one and the same time; and 4) the property must be held by one and the same undivided
possession (unity of possession). In the Matter of Mattie L. Robinson v. Western Surety Company, 791 S.W.2d 844, 848 (Mo. Ct. App. 1990). Because the interest in a life estate is
by definition, less than the interest in a fee simple estate, it naturally follows
that Mr. J~ is not a joint tenant with Virginia M~, Jerry J~, and Zebedee J~, all
of whom received an undivided fee simple interest. As such, no further discussion
is needed on this issue.
2. With respect to your second question, as noted above, Mr. J~ has a life estate
instead of a remainder interest. However, in order to answer your question with respect
to Mr. J~ ownership rights, we must examine the characteristics of a life estate.
As previously noted, a life estate is an estate which is not terminable at any fixed
or computable period of time and has its duration measured by the life or lives of
one or more persons. Cornelius J. M~, Introduction to the Law of Real Property § 9
Life Estates (2nd ed. 1988). As between a life tenant and a remainderman, the life
tenant alone enjoys the right to possession and enjoyment (to the exclusion of the
remainderman). Mathis, et al. v. Melton, et al., 238 S.W. 806, 808 (Mo. 1922); Bryan M. D~, Planning with Life Estates 6
Probate and Property 38 (July/Aug. 1992). A life tenant possesses only the right to
the beneficial use and income from the land. Miller
v. Bowen Coal & Mining Co., 40 S.W.2d 485, 489 (K.C. Ct. App. 1931); see Beauchamp v. Beauchamp, 381 S.W.2d 804, 806 (Mo. 1964). A life estate has the quality of alienability and
the life tenant can convey his or her estate to a third person, mortgage it, lease
it, or sell it for a term of years no greater than the duration of the life estate.
Cornelius J. M~, Introduction to the Law of Real Property § 12 Characteristics of
a Life Estate at 53 (2nd ed. 1988); see Root v. Mackey, 486 S.W.2d 452 (Mo. 1972) (citations omitted); Beauchamp v. Beauchamp, 381 S.W.2d 804, 806 (Mo. 1964) (citations omitted); Miller
v. Bowen Coal & Mining Co., 40 S.W.2d 485, 489 (K.C. Ct. App. 1931) (citations omitted).
Nevertheless, the life tenant has a legal duty to preserve the corpus of the estate
for the remainderman in the condition in which he or she received it. Muzzy v. Muzzy, 261 S.W.2d 927, 931 (Mo. 1953). According to the foregoing, Mr. J~ has an interest
in the property which includes the right to convey his interest to a third party,
but he does not have ownership rights which permit him to dispose of the property
3. In response to question number three, Virginia M~, Jerry J~, and Zebedee J~ are
both owners and remaindermen. "'A gift or grant of a life estate with remainder to
a named person on the death of the life tenant creates a vested remainder on the death
of the testator.'" Harlow
v. Benning, et al., 207 S.W.2d 471, 473 (Mo. 1948) (citing 33 Am. Jur., Sec. 115, p. 573; Annotation
128 A.L.R. 306). "Or to put it another way, a remainder is vested when it is limited
to an ascertained person or persons with no further or other conditions imposed upon
the taking effect in possession than the determination of the precedent life estate."
Id. (citing Norman v. Horton, 126 S.W.2d 187 (Mo. 1939)). It is characteristic of a vested remainder that the legal
title comes to reside at once in an identifiable person or persons, although his or
their possession may be postponed until termination of the preceding estate. Graves v. Hyer, 626 S.W.2d 661, 664 (Mo. Ct. App. 1981). Because the deed limited the remainder
to Virginia M~, Jerry J~, and Zebedee J~, all of whom were ascertainable individuals
at the time of the grant, they have a vested remainder. Consequently, the remaindermen,
and not Mr. J~, are the owners of the property in issue because title to the property
vested in them at once even though they are not entitled to possession until the death
of J.P. J~.
4. With respect to question number four, Mr. J~ does not have a "life remainder."
No such an interest exists. As pointed out above, Mr. J~ merely received a life estate
in the property in question and the other three named individuals received a remainder
interest in fee simple. The confusion comes because the person drafting the deed left
out a comma. The Deed should read as follows: ". . . J.P. J~ for life, remainder in
fee simple to Virginia M~, Jerry J~ and Zebedee J~."
In response to your ultimate question of whether Mr. J~ life estate can be considered
a resource for purposes of SSI, we are of the opinion that if he uses the property
as his home, his life estate interest cannot be counted as a resource. In determining
the resources of an individual, the home is excluded. 20 C.F.R. § 416.1210 (a). However,
assuming that Mr. J~ does not use the property in question as his home, his life estate
interest can be considered as a resource. 20 C.F.R. § 416.1201(a).