Harkness v. Lisle

132 Ky. 767 | Ky. Ct. App. | 1909

Opinion op the Court by

Wm. Rogers Clay, Commissioner

Reversing.

These appeals involve the construction of the will of Rufus Lisle, a prominent farmer and breeder of thoroughbred' stock, who died a resident of Fayette county, Ky., in the year 1891, and the validity of the proceedings of the Scott circuit court decreeing a sale of the tract of land devised by Rufus Lisle to ■his son, James L. Lisle.' The appeals will therefore be considered together.

This action was instituted by James1 L. Lisle and his wife, Pattie O. Lisle, against their only living children, Rufus Lisle, Jr., and Lillian Lisle, infants over 14 years of age, and their statutory guardian, Victor Bradley, and John H. Payne and E. P. Halley, Sr., trustees under the last will and testament of Rufus Lisle, Sr. , The petition charges that by the fifth clause of the will of Rufus Lisle, Sr., the testator devised' to James L. Lisle a fee-simple title to the 250 acres of land known as the “Duke place,” located in¡ Scott county, Ky., and that the fifteenth clause of said will was an unreasonable restraint upon the fee so devised, and was therefore null and void. It is further charged: That if the estate devised to James L. Lisle was not a fee simple, it was a joint estate in fee with his children and a vested estate in possession, and could not be divided without materially impairing its value and the value of plaintiff’s interest therein; that it would be to the interest of the joint owners therein, including the infant defendants, to sell the property and reinvest the proceeds in other land which would yield a better income. It was further charged: That the trustees named in the will attempted to comply with its provisions by deeding the 250 acres of land in Scott county to James L. Lisle and his children. That the granting clause of said deed was as follows, “The party of the first part does hereby sell and convey unto the party of the second part, their heirs and assigns., the following described real property,” etc.; and the habendum of said deed was as follows: “To have and to hold said property upon the party of the second part, their heirs and assigns forever.” The petition then alleges that the deed so made did not conform to the provisions of the will, and prays for a construction of said will, asking that, if it be adjudged that plaintiff James L. Lisle was the exclusive owner of the fee in said property, the deed be reformed so as to invest him with that character of title; also, that paragraph 15 of said will be adjudged an unreasonable limitation upon the estate devised, and that it be held for naught and void'; and that if the property be held to be a joint fee in James L. Lisle and his children, or that he be the owner of a life estate with remainder to his children, the property be sold and the proceeds reinvested under the direction of the court.

Process was properly served upon John EL Payne and E. P. Halley, Sr., trustees, and upon the infant defendants, Rufus Lisle, Jr., and Lillian Lisle, and upon their statutory guardian, Victor Bradley. All the parties therefore were before the court. A demurrer was filed by the infant defendants to that portion of the petition charging that plaintiff was entitled either to the absolute fee or to a joint fee with his children. It was contended by their guardian that the estate devised to James L. Lisle was simply a life estate. This demurrer was sustained to that paragraph containing the plea that the estate devised Was an absolute fee simple in James L. Lisle. It was overruled as to that paragraph pleading a joint estate in fee simple in him and his children, and judgment entered in accordance with the decision on the demurrer. James L. Lisle appeals from that portion of the judgment sustaining defendants’ demurrer to the paragraph pleading an absolute fee-simple title in James L. Lisle. The infant defendants and their guardian appeal from that portion of the judgment adjudging a joint fee-simple estate in James L. Lisle and his children. Thereafter proof was taken upon the question of indivisibility and the advantages to be derived from a sale and reinvestment of the proceeds. The case was then submitted, and it was adjudged by the court that the property could not be divided without materially impairing its value as a whole, or the several parts thereof, that the fifteenth clause of the -will of Rufus Lisle, Sr., was illegal and1 void, and that the property he sold ■for the purpose of reinvestment. It was further ordered that the proceeds of the sale be held subject to the further orders of the court. It appears that, prior to the institution of the proceedings, appellant L. V. Harkness agreed in writing with James L. Lisle to purchase the land at the price of $150 per acre. The testimony shows that this was in fact a high price, and that the sale at such a price was very advantageous to all parties concerned. Upon the sale by the master commissioner, L. V. Harkness complied with his agreement and purchased the property at a specified price. In due time he filed exceptions to the sale. Certain of these exceptions it will be unnecessary to notice. The principal exceptions relied upon are: (a) That the court erred in holding that the estate devised was a joint estate in fee simple in James L. Lisle and his children; it being contended that plaintiff James L. Lisle had either a fee-simple estate or an estate for life, with remainder to his children, (b) That the court erred in' holding that the restraint upon the alienation of the property, imposed by the fifteenth clause of the will, was illegal and void, (c) That the deed from John H. Payne and E. P. Halley, Sr., trustees for James L. Lisle and his children, does not conform to the will of Rufus Lisle, Sr. All of the purchaser’s exceptions were overruled, and he appeals.

We shall now proceed to a consideration of the questions involved on this appeal. The will in question bears date of October 7, 1890. It was probated November 23, 1891. In the first clause the testator directs the payment of his debts. In the second clause the testator devises and bequeaths to Ms wife, Mary ,M. Lisle, for and during her natural life, a certain farm, also tbe income of certain shares of stock. He then provides that, at the death .of Ms wife, the shares of stock should be divided equally among his eMldren, •James L. Lisle, Hampton Halley Lisle, Virginia H. Lisle, Nancy Lisle, and Miriam Lisie, but that at the •death of his wife, if any of Ms children should be dead .leaving issue, said issue should take, in such shares of stock, the same interest that the parent would have taken, if living, and, if any child should die without issue living, then the share of such child should be divided equally among his living children and the issue of any child that might be dead. • In the third •clause certain stock and agricultural implements and household furniture are devised to his wife. Clause 4 directs that the testator’s blooded horses he- sold by his executors. Clause 5, which relates particularly to the property involved in this action, is as follows: “I give, devise and1 bequeath to my son -James L. lisle and his children two hundred and fifty (250) acres of the tract of land I own in Scott •county, Kentucky, known as the Duke place, said two hundred and fifty (250) acres is to be laid off so as to include all the houses, buildings and improvements on said land, upon the condition that my said son shall pay to my daughter VirgiMa H. Lisle one thousand dollars ($1,000.00) at once, and the further sum of eight hundred dollars ($800.00) when she is twenty-five (25) years of -age, and upon the further -condition that -he shall pay my other children, Hampton Halley, Nancy and Miriam, each the sum of eight hundred dollars ($800.00) as they respectively become twenty-five (25) years of age. I require my said son to make said eight hundred dollars ($800.00) payments, because of advancements that I have heretofore made to him. I also devise and bequeath to- my said son James fifty (50) shares of stock in the Payette National Bank, Lexington, Kentucky, to be delivered to him as soon as possible after my death. He shall have the right to do as he pleases with said stock.” By clause 6 the land devised to the testator’s wife for life, together with certain bank stock, is devised and bequeathed ‘ 'to my son Hampton Halley Lisle, and his children.” By clause 7 the remainder of the Duke place (the other part of which was conveyed to James L. Lisle) was devised "to my daughter, Virginia H. Lisle and her children,” and it is. provided: "* * * The said land shall be owned and held1 by my said daughter as her sole and separate estate, free from the debts and control of any husband she may have.” Certain bank stock is also-bequeathed to his said1 daughter. By clause 8 the testator devised and bequeathed “to my daughter Nancy Lisle and her children” one-half of a tract of 350 acres, with the provision that "said land shall be owned and held by my said daughter as1, her sole and separate estate, free from the debts or control of any husband she may have.” By this clause certain shares' of Stock were also bequeathed to his daughter Nancy. By clause 9 the testator devised and bequeathed "to my daughter Miriam H. Lisle- and her children” the other half of the 350 acres of land, "to be owned and held as her sole and separate estate, free from the debts and control of any husband she may have.” This daughter is also bequeathed certain bank stock. Clause 10 is as follows r “If it is deemed advisable by the trustee hereinafter named to invest the fifty-eight hundred dollars ($5,800.00) mentioned in the devise to my daughters Nancy and Miriam, or any part in buildings1 and improvements on the tracts of land devised to them, the said trustee shall have power and authority to expend the whole or any part of said sum1 in such buildings and improvements.” Clause 11 is1 as follows: “I hereby authorize John H. Payne and Edmond Halley, Senior, to divide the tract of three hundred and fifty (350) acres of land devised to my daughters Nancy and Miriam and to execute the deeds necessary to- invest each of them and the trustee hereinafter named with title to the land allotted to them in said division. The said John H. Payne and Edmond Halley, Senior, are also authorized and empowered to divide the land devised to my daughter Virginia and son James, and to make deeds investing them and the trustee hereinafter named, with title to the lands allotted to each of - them in said division, and for the purpose of making said division and deeds I hereby invest- them with all necessary power and authority in the premises.” Clauses 12, 13, and 11 it will be unnecessary to- consider. Clause 15 is as follows: ‘“Neither of my, children nor the trustee herein named shall sell, convey or in any way ■charge or incumber the land herein devised, for any purpose whatever during the lifetime of any of my ■said children.”

The first question to be determined is1: "What estate in the land in question was devised to James L. Lisle? The language employed is: “I give, devise and bequeath to my son James L. Lisle and his children,” etc. This language brings the case within the :rule laid down in one of three lines of cases. One class of cases is to the effect that the parent takes a joint estate in fee simple with his children then born, or thereafter to be born. Turner v. Patterson, 5 Dana, 295; Cessna v. Cessna’s Adm’r, 4 Bush, 516; Powell v. Powell, 5 Bush, 620, 96 Am. Dec. 372; Bell v. Kinneer, 101 Ky. 271, 40 S. W. 686, 72 Am. St. Rep. 410. Another class of cases is to- the effect that the parent takes merely a life estate with remainder to his children. Fletcher v. Tyler, 92 Ky. 145, 17 S. W. 282, 36 Am. St. Rep. 584; Smith v. Upton, 13 S. W. 721, 12 Ky. Law Rep. 28; Davis v. Hardin, 80 Ky. 672. Then there is another Class of cases where the word “children” is used in the sense of “heirs.’ This construction is adopted only in those cases-where, upon consideration of the whole will, it is evident that the words were used as words of limitation, and not of purchase. Childers v. Logan, 65 S. W. 124, 23 Ky. Law Rep. 1239; Moran v. Dillehay, 8 Bush, 434; Hood v. Dawson, 98 Ky. 285, 33 S. W. 75; Lachland’s Heirs v. Downing’s Exr’s, 11 B. Mon. 32; Williams v. Duncan, 92 Ky. 125, 17 S. W. 330.

In the case of Williams v. Duncan, supra, the court said: “ ‘Children’ is not, like ‘heirs,’ or, as construed under our statute, ‘heirs of the body,’ a word of limitation, importing by its own force a fee-simple estate. Nevertheless it has been often found necessary, in order to effectuate the intention of the testator, made-manifest to the court by considering the whole will,, to give it a meaning different from its legal, and perhaps popular, signification. Accordingly, it has been, in some cases held to indicate a life estate, in others a joint estate, and in others courts have not hesitated to interpret it in the.sense of ‘heirs’ and allow it the same effect. The testator in this case left a-widow and four children, two sons, one being married, and his daughters, both of whom had husbands. To each of the sons he gave a lot of land absolutely. To each of his two daughters he also gave a distinct parcel, and one lot jointly; but in every instance previous to the eleventh clause; the name of each daughter was coupled with the words ‘and her children,’ or in case of the joint devise ‘their children,’ and in one clause a sum of money was required to be paid by one son to Mrs. Tyler to make her equal, which he directed to be invested ‘for the benefit of said daughter and her children,’ and he was even so particular as to direct the lot, given jointly, to be laid off, so as ‘ ‘to give my said daughters and their children a front of 200 feet.’ It is manifest from the repeated and persistent use of the words1 mentioned that he had a definite, uniform, and fixed idea of their meaning, or of what he supposed and intended them to mean, and it is therefore persuasive he designed the words ‘and their children’ used in the fifth clause to have the same meaning as when used in making devices to his daughters. A partial solution of the question of his intended meaning may be derived from the eleventh clause, as follows: ‘If either of my two daughters should die without leaving children or grandchildren I direct that the property devised to her herein shall go to my remaining daughter and her children, and if both of my daughters should die and either of them leave no children I direct that the property herein devised to her shall go to the children of my other daughter. ’ Now it is evident the object of that clause was to keep the real property devised to his daughters in the enjoyment of his immediate descendants, and' the husbands from having a life estate, even, in any part of it, in ease the. wife of either died before he did; and as that object could be accomplished only by providing expressly and explicitly, as was done in the eleventh clause, they should take a life 'estate only, it is plain he believed the words ‘and her children,’ or ‘and their children,’ unexplained, did not. import a life estate, but would be understood and interpreted as meaning a fee-simple . estate in each of his two daughters, either wholly or jointly with her children; and if such was the case it is altogether reasonable that he did not intend for the words ‘and their children,’ as Used in the fifth clause, to signify a life estate merely in- his grandsons. Consequently he must have intended them each to take absolutely one-sixth, that being the number then born, or else for each to take that fractional part jointly with the indefinite number to be thereafter born to him. The latter construction we think unreasonable, for, if he had intended his then living grandsons to have less than one-sixth, he woidd have provided for their after-born brothers and sisters, his grandchildren, instead of their children,-his great-grandchildren, some of whom he must have known and expected might not possibly, - in due course of nature, be born to take their shares, in waiting, for more than half a century. In our opinion the six grandchildren living, and the two born within the period of gestation after his death, take, under the will, each one-eighth of-the land in fee simple.”

In the case of Childers v. Logan, supra, the provision of the will was as follows: “I will to Addy and her children and Charley and his children $5,000, the money to be invested in bank stock until they are twenty-five years of age.” The court said: “He (the testator) evidently meant by this clause of bis will to give the $5,000 to Ms children Addy and Charley, and that it should be paid to them when they arrived at the age of 25 years. The daughter, Addy, was seven, and the son, Charley, three', years of age when the will was made'. The testator did not intend that his daughter and son should not take the $5,000 until their children were 25 years of age. He did not intend to postpone the payment of the money to them until that time should arrive. He evidently used the words children in the sense of heirs, and the absolute title to the sum thus devised vested in his eMldren named, and it was his intention that they should receive their shares upon the arrival of the age of 25 years,”

In the Am. & Eng. Encyc. of Law, vol. 5, p. 1092, the rule is thus stated: “The term ‘children’ is a word of purchase, and will not be construed as equivalent to ‘heirs’ in the absence of other words or circumstances showing it to have been used in that sense. But where it is necessary to give effect to' the instrument, or where there are other words showing that, ‘children’ was used in the sense of ‘heirs,’ the term will be construed as a word of limitation equivalent to ‘heirs’ or ‘heirs of the body,’ etc. Sio the term ‘heirs’ has been construed as equivalent to ‘children.’ ”

Under the more recent decisions of tMs court, where there is nothing in the deed or will to show • a contrary purpose, the tendency is to hold an estate deeded or devised to a man and his children or to a woman' and her children is a life estate to the first taker, with remainder to the children. Hall v. Wright, 121 Ky. 16, 87 S. W. 1129; Brumley v. Brumley, 89 S. W. 182, 28 Ky. Law Rep. 231.

We therefore find ourselves1 forced to the position of holding that James L. Lisle took a fee-simple or a life estate. To determine the character of the estate devised to him, we may consider the provisions of the will with reference to the other devisees. It is manifest that he used the word “children” advisedly, for he repeats it in connection with the devises and bequests made to each of his children. The devise to the testator’s wife has an important bearing. The land devised to her is “for and during her natural life. ’ ’ This plainly shows that when the- testator intended to devise a life estate he knew what language to employ for that purpose. If he had intended a mere life estate in James L. Lisle, the most natural thing for him to have done would have been to use the same language employed in the devise to his wife. Furthermore, it is evident that the restraint imposed by clause 15 upon the alienation of the land devised to his children was imposed in the belief on the part of the testator that the language employed in the respective devises to his children would import a fee, and without such a restraint the devisees would have full power to sell-and convey the same. Then, too, in each of the devises to his daughters, there is the following provision: “* * * The said land shall be owned and held by my said daughter as her sole and separate estate, free from the debts and control of any husband she may have.” It is evident from this language that the testator supposed he had conveyed a fee to his daughters, and that without such qualifying language the husband would have control over the land. Besides, the land is to be held “as her sole and separate estate,” and not as the sole and separate estate of her children, or as their sole and separate estate. In clause, 10 the testator speaks of “the devise to my daughters Nancy and Miriam, or any part in buildings and improvements on the tracts of land devised to them.” It is evident from this language that he. believed he had devised the land to them. . This is made all the stronger by the language employed with reference to the devise to his wife. When he speaks in the sixth clause of giving to his son Hampton Halley Lisle and his children the farm of 185 acres, he does not employ the language “heretofore devised to my wife,” but he uses the language, “heretofore devised to my wife for life.” When the testator comes to the question of dividing the tract of 350‘ acres of land between his daughters Nancy and Mliriam, he authorizes the trustees “to execute the deed's necessary to invest each of them and the trustee hereinafter named with title to the land allotted to them in said division.” Likewise, when he provides for the division of the Duke place between his daughter Virginia and his son James, he authorizes the trustees “ta make deeds investing them and the trustee hereinafter named, with title to the lands allotted' to each of them in said division.” We therefore conclude that, when the whole will of the testator is considered', it was his evident purpose to invest his son James L. Lisle with' a fee-simple title to the land in controversy.

We are fortified in this conclusion by the rule laid down in the early case of Lindsay’s Heirs v. McCormack, 2 A. K. Marsh. 229, 12 Am. Dec. 387, decided in the year 1820. That ease involved a construction of a certain provision of the will of Joseph Lindsay, which was probated Jarmary 21, 1783. The provision in question was as follows: “I give to my loving wife, Ann Lindsay, one thousand acres of land, lying in the fork of. Elkkorn, obtained by certificate from the commissioners of the district of Kentucky, granted to Flilton Lindsay, and conveyed to me by bill of sale from said Lindsay, bearing date the 12th of April, 1781. The said Ann is to pay Pulton.Lindsay, Jr., at the time he arrives at the age of twenty-one, two hundred pounds, provided she obtains a legal title for the same, also to pay off the heir of William Pogue, deceased.” In that case the court, in an opinion by Judge Owsley, said: “It is contended on the part of the appellants that as the devise to Ann Lindsay is in general terms to her, without containing any words descriptive of the nature of the estate intended to be devised, it should be construed to pass an estate for life and not of inheritance. As Lindsay, the testator, died before the passage of th'e act of the Virginia Legislature dispensing with .words otherwise necessary in a deed or will to transfer an estate of inheritance, the legal import of the devise must be deduced upon common-law principles applicable to' the construction of wills before the passage of the act. Testing the decree by those principles, there can, however, be little doubt but Ann Lindsay acquired an estate of inheritance and not barely an estate for life. It is apparent from the devise that no grant had been obtained for the land from the commonwealth; when the will was made, and that it was intended by the testator to authorize a perfection of the title in the name of the devisee. It could not therefore have beeen deemed material by him in the devise to Ann to describe specifically the nature of the estate intended to be given, for, as by obtaining a grant’ from the commonwealth, she would be invested with an estate in fee, he must have supposed that his intention to dispose of such an interest would be sufficiently clear by providing for her procurement of the title. As a question of intention therefore, depending upon a construction of the will, we would have no hesitation in deciding that an estate of inheritance passed to Ann; but admitting, if no provision had been. made requiring the devisee to pay Fulton Lindsay, £200, etc., the devise might have been differently construed, yet, as that provision clearly imposes a personal charge and not a charge upon the estate devised, the devisee must be held to have taken an estate in fee, for it is well settled that a devise which would otherwise pass but for a life estate, by creating a personal charge upon the devisee, passes an estate of inheritance.”

In the case under consideration the devisee, James L. Lisle, was directed to pay to testator’s daughter Virginia EL Lisle the sum of $1,000 immediately, and the .further sum of $800 when she arrived at 25 years of age. He was further required to pay to testator’s children Hampton Halley Lisle, Nancy Lisle, and Miriam Lisle, each, the sum of $800 as they respectively became 25 years of age. It is inconceivable that the testator intended that James L. Lisle should have only a life estate in the land devised, and yet, in order to secure it, have to pay the sum of $4,200 to his brother and sisters. Under such circumstances the benefit he might derive from the land' devised might be far less than the sum required to be paid. The sum required to be paid was a personal charge upon the devisee, and this is a strong circumstance in favor of the view that the estate devised! was one of inheritance, and not for life. Being of the opinion that said estate is a fee simple in James L. Lisle alone, we think the court erred in holding that he had a joint estate in fee simple with his children.

We shall next discuss the question of the validity of clause 15 of the will. By that clause the testator’s children and their trustees are ¡jrohibited from selling, conveying, or in any way charging or incumbering the land devised, for any purpose whatever, during the lifetime of any of said children.

The general rule of law applicable to restraints on alienation may be found in Littleton, section 360; and is as follows: “If a feoffment be made upon this condition, that the feeoffee shall not alien the land to any, this condition is void, because when a man is enfeoffed of lands or tenements he hath power to alien them to any person by the law. Por if such a condition be good, then the condition should oust him of all power which the law gives him which should' be against reason; and therefore such a condition is void.’ ’ The exception to this doctrine may be found in Littleton, section 361, which section is as follows: “But if the condition be such that the feoffee shall not alien to such a one, naming his name, or to any of his heirs, or of the issues of such a one, etc., or the like, which conditions do not take away all power of alienation from the feoffee, then such a condition is good.”

In the well-considered case of Mandlebaum v. McDonell, 29 Mich. 78, 18 Am. Rep. 61, the court said: “Now, neither Littleton nor Coke, nor any of the annotators of Ooke upon Littleton, so far as I have been able to discover, has mentioned any such qualification of the general rule laid down by Littleton in section 360, nor anywhere intimated that such a condition against alienation for a particular time, or for a reasonable time, or for any time whatever, would be valid; and the same may be said of the other ap>proved English works upon real estate: Blackstone’s Commentaries, Sheppard’s Touchstone, Bacon’s Abridgement, Cruise’s Digest, Comyn’s Digest, and; all other English works which I have been able to examine. And if there is any English decision since the statute Quia Emptores, where the point was involved, in which it was held competent for a feoffer, grantor, or devisor of a vested estate in fee simple, whether in remainder or in possession, by any condition or restriction in the instrument creating it, to suspend all power of the feoffer, grantee, or devisee, otherwise competent, to sell, for a single day, I have not been able to find it; and the able counsel for the defendants, whose research nothing of this kind is likely to escape, seem to have been equally unsuccessful. In making this statement I do not overlook Large’s Case, 2 Leonard, 82 and 3 Leonard, 182, which by some elementary writers and annotators, and in some dicta by judges, and perhaps one or two decisions in this country, seems to have been understood as warranting such a restriction, and upon which all such elementary writers, annotators, and judges, who profess to rest such an opinion upon any authority, rely, but which I propose presently to show decides no such thing as to any vested estate of any kind.”

In Am. & Eng. Encyc. of Law, vol. 24, p. 867, the rule is thus stated: “There are many dicta, as well as a few direct authorities, to the effect that restraints on alienation for a limited time are valid, but in a number of eases the validity of such restraints has been said' to be doubtful; and on principle, and according to the weight of authority, a restriction, whether by way of condition, or of limitation over, or of bare prohibition against any and all alienation, although for a limited time, of a vested estate in fee, whether in possession or remainder, is void. In the case of a contingent remainder, however, or of any other interest not vested, a restriction upon the power of alienation to last as long as the interest remains contingent is valid. ’ ’

As an inseparable part of this doctrine, it is the recognized rule of law that a devise over of an estate devised in fee is void', and this court has so held in a number of carefully considered cases. Barth v. Barth, 38 S. W. 511, 18 Ky. Law Rep. 840; Clay v. Chenault, 108 Ky. 77, 55 S. W. 729; Ray v. Spears' Ex’r, 61 S. W. 113, 23 Ky. Law Rep. 816; Humphrey v. Potter, 70 S. W. 1062, 24 Ky. Law Rep. 1264; Cralle v. Jackson, 81 S. W. 669, 26 Ky. Law Rep. 417; Becker v. Roth (decided Jan. 29, 1909, but not yet officially reported) 115 S. W. 761. But this court is committed to the doctrine that a restraint on alienation for a reasonable time is valid. In Stewart v. Brady, 3 Bush, 623, the restraint upon alienation was until the devisee arrived at the age of 35 years. In Stewart v. Barrow, 7 Bush, 368, the restraint was for a specified length of time. In Kean’s Guardian v. Kean, 18 S. W. 1032, 19 S. W. 181, 13 Ky. Law Rep. 956, alienation was restrained until the devisee reached the age of 28. In Wallace v. Smith, 113 Ky. 263, 68 S. W. 131, the devisee was prohibited from selling the property until he reached the age of 35. In Johnson v. Dumeyer, 66 S. W. 1025, 23 Ky. Law Rep. 2243, the devisee, a daughter, was restrained from disposing of the property for a period of 20 years after the death of the testator. In Morton’s Guardian v. Morton, 120 Ky. 251, 85 S. W. 1188, the restraint was during the lives of the joint life tenants. In Lawson v. Lightfoot, 84 S. W. 739, 27 Ky. Law Rep. 217, it was provided that the remainder interest should not be sold during the life of the tenant for life. Jh all of these cases it was held that the restraints upon alienation were for a reasonable time, and therefore valid. In discussing the question, this court, in the case last cited, speaking through Judge Settle, said: “It must be conceded that the great weight of authority outside of Kentucky is to the effect that, where the fee-simple title to- real estate passes under a deed or will, any restraint attempted to be imposed by the instrument upon its alienation by the grantee, or devisee, is to be treated as void, and such is clearly the rule announced by Mr. Gray in his excellent work on Restraints of Alienation; but the contrary view has been adopted by this court in repeated decisions, beginning with Stewart v. Brady, 3 Bush, 623, and ending with Wallace v. Smith, 113 Ky. 263, 68 S. W. 131. Stewart v. Barrow, 7 Bush, 368; Rice v. Hall, 42 S. W. 99, 19 Ky. Law Rep. 814; Kean’s Guardian v. Kean, 18 S. W. 1032, 19 S. W. 184, 13 Ky. Law Rep. 956; Johnson v. Dumeyer, 66 S. W. 1025, 23 Ky. Law Rep. 2243. In other’ word's, the accepted doctrine in this state is that restraints upon alienation may be imposed for a reasonable period. This court has, however, never fixed a limit to such restraint, but in Stewart v. Brady, supra, it was held that a devise of land to the testator’s daughter, with the limitation, that it should not be disposed of by her until she became 35 years of age, was reasonable, and in Kean’s Guardian v. Kean, 18 S. W. 1032, 19 S. W. 184, 13 Ky. Law Rep. 956, it was held that a restriction accompanying a devise of real estate to a son of the testator that he should not have the power to dispose of it until he became 28 years of age was good. If such a restriction may be imposed for the periods indicated by the cases supra, why may it not endure for a longer time, or, as contemplated by the testator in this case, during the life of his widow, the tenant for life of the real estate, the alienation of which is attempted to be restricted? The manifest intention of the testator', R. A. Lightfoot, was to preserve the property intact during the life of the widow, and until it should be taken in possession by the daughters. The widow was beyond middle life when the will was probated, so after all her life expectancy was not then so great as to render unreasonable the restriction placed by the testator upon the right of the devisees to dispose of the property. After a careful consideration by the whole court of the question presented by the record, it is deemed safer to adhere to the former decisions of the court thereon, though this conclusion has not been reached without misgiving as to its correctness upon the part of a minority of the court: the writer of this opinion being of that minority. It may not, however, be improper to suggest that, notwithstanding the restriction imposed by the will upon the power of the devisees to dispose of the real estate in question, if the deed of general warranty tendered appellant by them should be accepted, they probably could not thereafter recover the property at any rate, they could not do so without being made to account upon their warranty for the consideration received by them, with interest.’ ’

We then come to the question whether or not the restriction contained in the will under discussion is reasonable. Here the testator attempted to impose a restraint upon alienation, ncj, for a specified' period of time, nor until the devisee arrived at a certain age, but during the entire lifetime of the devisee. The general rule, is that the right of alienation is an inherent and inseparable quality of every vested fee-simple estate. To hold that alienation could be restrained during the lifetime of the fee-simple holder would be to deprive the fee of all its essential qualities. As said by Littleton: ‘ Tf such a condition be good, then the condition should' oust him of all power which the law gives him, which! should be against reason.” "While bound by the former adjudication of this court to adhere to- the doctrine that a limitation for a reasonable length of time is valid, we have no* hesitation in saying that the limitation attempted to be imposed by the will in question is unreasonable. A testator cannot devise a fee, and then destroy it entirely. We therefore conclude that clause 15 of the will is invalid.

In view of the fact that the deed executed to James L. Lisle by John H. Payne and E. P. Halley, Sr., does not convey a fee-simple estate, and inasmuch as said trustees are before the court, judgment may be entered upon the return of the case declaring that deed void- and directing the trustees to make, in conformity with this opinion, a deed to the property in question to James L, Lisle.

On the appeal of L. V. Harkness and of Rufus Lisle, Jr., etc., the judgment is affirmed. Judgment on the appeal of James L. Lisle, etc., is reversed, and canse remanded for proceedings consistent with this opinion.

Case Details

Case Name: Harkness v. Lisle

Court Name: Court of Appeals of Kentucky

Date Published: Mar 16, 1909

Citation: 132 Ky. 767

Court Abbreviation: Ky. Ct. App.