61 So. 942 | Ala. | 1913
The reporter will set out, in his statement of the facts of this case, items, 1, 3, and 8 of the will, which, in this case, we are called upon to construe.
Under the above will Mr. Ashurst did not attempt to devise the lands described in item 3 of the will to his three sons “severally, successively and jointly, and to the heirs of the body of the survivor if they came of age, and in default thereof, over.” He undertook to devise to his three sons, and, under certain conditions, to their children, a term of 25 years — a chattel real— in the said lands. While he declares, at the end of item 8 of the will, that it Avas his purpose to vest in each of his six children an undivided one-sixth interest in remainder in the said lands, subject to the previous life estates limited in item 3 of the will, the truth is that he had not in item 3 created a previous life estate in said lands. To so construe the provisions of item 3 of the Avill Avould be to juggle with mere words. Item 3 simply and plainly creates a term of 25 years in said lands and declares who shall enjoy that term.
The above is not only true, but the purpose of the testator in creating the term of 25 years is not left in doubt. The purpose he himself in item 1 plainly declares was to secure to his children a decent subsistence against the accidents and misfortunes of life and to postpone, for a considerable period, a final division or sale of the lands described in item 3 of the Avill. The open purpose of the testator in items 3 and 8 of his Avill was to so fetter the lands described in said terms as to render their sale in any Avay, by any person or by any court, impossible until a period of 25 years had elapsed after his death.- “The rule against perpetuities is a restraint imposed for reasons of public policy by the law
It seems to us that the vital points at issue in this case were fully considered and determined by this court in the case of Lyons, et al. v. Bradley, supra. In that case, as in this, a plain effort was made by the testator to evade our statute against perpetuities, and in this case, as in that, the result must be the same. Estates and interests created in lands, whether directly or through the medium of a trustee, which offend the above-quoted provision of our Code, are void. — Lyons, et al. v. Bradley, supra.
3. The above-quoted section 1030 of the Code provides, among other things, that lands may be conveyed so a§ to extend the estate conveyed for a period of three lives in being and ten years thereafter. Section 3410 of the Code of 1907 also provides that “no trust of estate for the purpose of accumulation only can have any force or effect for a longer term than ten years.” This period of “ten years” fixed in the above sections of the Code may evidence a legislative license to testators and grantors to so fetter the estates devised or granted by them as to prevent their alienation for a -fixed period of ten years, but certainly not longer. This question is not before us, and it is therefore unnecessary for us to determine it.
The decree of the court below is affirmed.
Affirmed.