Bragdon v. Carter
2017 Ohio 8257
| Ohio Ct. App. | 2017Background
- Testator Burl Bragdon died in 1998 and devised a tract of real estate “equally to my children and friend, … provided that said real estate not be sold until twenty-one (21) years after the death of my granddaughter, Morgan McKenzie Diles (b. Apr. 14, 1996).”
- The probate court admitted the will, issued a Certificate of Transfer conveying one-fourth interests to the named devisees, and noted the same restraint on sale in the recorded certificate.
- Over time the devisees conveyed their interests, and by 2014 Corey and Heather Bragdon were sole owners of the property.
- Corey and Heather sued for declaratory judgment (marketable title; restraint void; right to convey). Belinda Carter, the former executor and a devisee, defended the restriction.
- The trial court found the testamentary restriction valid and entered judgment for defendants; Heather Bragdon appealed.
- The appellate court reviewed de novo whether the will created a valid restraint on alienation and reversed, holding the restraint void as repugnant to a fee simple devise and public policy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a will provision barring sale until 21 years after granddaughter's death validly restricts alienation of devised land | Bragdon: The restraint is void; the devise conveyed fee simple and restraints on alienation are unenforceable | Carter: The devise should be read as creating a lesser estate (life estate) or otherwise enforceable restriction; transfers violating the restriction are void | The restraint is void; no language shows a lesser estate was intended, fee simple passed, and restraints on alienation of fee simple are repugnant to the devise and public policy |
Key Cases Cited
- Hobbs v. Smith, 15 Ohio St. 419 (Ohio 1864) (testator cannot restrain alienation of a fee simple devise)
- Anderson v. Cary, 36 Ohio St. 506 (Ohio 1881) (restraint on sale of devised land, even for years, is void as repugnant and against public policy)
- Ohio Soc. for Crippled Children & Adults, Inc. v. McElroy, 175 Ohio St. 49 (Ohio 1963) (restraints against sale in a devise are void)
- Dunkel v. Hilyard, 146 Ohio App.3d 414 (4th Dist. 2001) (interpretation of wills is a question of law)
- Margolis v. Pagano, 39 Ohio Misc.2d 1 (C.P. 1986) (attempts to restrain alienation on a fee simple conveyance must be declared void)