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Kost v. Foster | 94 N.E.2d 302 (1950)
A remainder is a future interest in real property that can become possessory when the prior estate naturally ends, such as when the holder of a life estate dies. Illinois’s highest court considered whether a remainder following a life estate was vested or contingent in Kost versus Foster.
In the late eighteen-nineties, John and Catherine Kost deeded a life estate in real property to their son Ross. The same deed provided that the remainder of the estate should go to Ross’s children when he died and that the children of any deceased child of Ross should receive their parent’s share. One of Ross’s children, Oscar, filed for bankruptcy while Ross was still alive. The trustee in bankruptcy sold Oscar’s remainder interest to a third party, Marshall Foster, and then issued him a trustee’s deed.
After Ross’s death in nineteen forty-nine, Oscar and the other surviving children sued Foster, seeking to void the trustee’s deed to Foster and partition the property amongst themselves. Under local law, the trustee in bankruptcy was only allowed to sell vested remainders, not contingent ones. Thus, Ross’s children argued that Oscar’s remainder was only contingent when it was purportedly sold to Foster. Foster countersued, arguing that the remainder was fully vested at the time of the sale. The trial court found for Foster, and Ross’s children appealed to the Illinois Supreme Court.
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