18 S.W.2d 957 | Ky. Ct. App. | 1929
Affirming.
Malon Courts died testate in December, 1913, and his will was probated at the February, 1914, term of the Logan county court. He devised to his great-nephew and namesake, Malon Clay Courts, the R.W. Courts homestead, *142 situated on Main street in Russellville, Ky., with a restraint on the alienation thereof to the effect that the homestead was not to be sold "out of the name Courts." The devisee is an infant, and this action was instituted by his guardian for a declaration of rights and a construction of the will. The circuit court adjudged that Malon Clay Courts took a fee-simple title to the homestead property described in the will free from any restraint whatever. The basis of the judgment was that the limitation on the fee that it was not to be sold "out of the name of Courts" was an unlawful and unreasonable restraint on alienation, and therefore ineffective and void. The guardian ad litem of the infant has prosecuted this appeal. The sole question presented is the validity of the limitation on the title that the property may not be sold to any one not bearing the name of Courts.
At common law all restraints on the alienation of land held in fee were void, but the rule prevailing in this jurisdiction is that a restraint for a reasonable period may be imposed upon the alienation of property. No invariable test has been prescribed by which to determine the reasonableness of restraints or limitations, and each case must be decided upon the particular and peculiar circumstances presented by it. Chappell v. Frick Co.,
In Thurmond v. Thurmond,
It is clear in this case that the attempted limitation on the power of disposition is not confined to a definite and reasonable time, but continues during the entire life of the devisee, extends to all persons not bearing the name of Courts, and seems to contemplate that it should run with the land and extend to all vendees of the devisee, immediate and remote. Such a restraint is clearly unreasonable, pot only because of its reaching beyond a reasonable time, but also because it limits the right to sell to a class so small as to amount to a denial of the right to sell at all.
It follows that the circuit court was correct in the conclusion that the restraint on alienation annexed to the devised fee was void and that the infant took the title free of the attempted limitation.
The judgment is affirmed.
Whole court sitting.