*1 of and Page rendered that recover here $8,389.30. sum of from Smith the Page and adjudged against
All costs are is con- District so far as the Water
Smith paid
cerned, and all costs incurred adjudged against Smith.
Page Ap- of the Court judgment part and reversed
peals is affirmed in part.
rendered Petitioner, MATTERN, al., Respondents.
Magadelina HERZOG et
No. A-9207.
Supreme Court of Texas.
April 1963. May 22,
Rehearing Denied *2 Darden, Stewart, Creigh- & K. Fowler
A. Houston, ton, Conroe, Williams, Lee, Lee & respondents. for NORVELL, Justice. Appeals has
The Court summary reversed District decree Court’s Paragraph and held II of clause the last will and testament of Monika Mattern is invalid violates because it against perpetuities constitutes upon unlawful question pur S.W.2d 86. The clause in ported Mattern, give child Chris testatrix, purchase real certain estate from the named in other beneficiaries the will. have reached the conclusion We clause is not invalid Appeals held we accordingly judgment that Court’s reverse and affirm that of the District Court. The Court of Civil makes following statement case: “Paul and Mattern executed Monika duly probated joint will whereunder Mattern, survivor, Mrs. took their remaining estate and passed at her death their children. daughter Marie Their was devised 20 not here Then acres involved. follows paragraph II as follows: reads “ ‘The remainder of our real all estate, situated, wherever located or possessed die which we seized and give bequeath of we to our beloved children, Mattern, Mat- J. Jack tern, Magadeline Herzog, Paul J. Mattern, Mock, Reginia Barbara Mattern, Gostslig, Agnes Johnnie and Monika Pustka Mattern to share thereof; and share alike in the division bequest however, this is made to our provision said named children with the that our son Chris Mattern shall have each from Barron, Nevasota, E.W. W. their Barron, S. other children interest in said Bryan, Newman, Houston, peti- real estate sum $45.00 Joe J. acre, tioner. making and in equitably according son lights, said other our said to their children parents placed price land, Chris Mattern he entitled to shall *3 per provided supported that price
deduct the son who had $45.00 the from them money may acre he could the from his- land sums of during brothers and have advanced our sisters and take credit for us life- ours) may such sums as he advanced (Italics times.’ have for support. quite simple- plan their This was “After death and Mrs. Mattern’s concept repeatedly in it has said and been probation will, the the of the three that construing courts in wills should con- conveyed their interests children language light sider the in used and the here). appellee (petitioner But the the attendant the- determine circumstances appellant children, (respondents five intent the testator. convey, although re- here) refusing to quested brought convey by appellee, respondents that concede a ap- suit title of this to relieve their will could be make ef drawn which would pellee’s he claim that had the objective fective the which the makers in- under their the will However, wished to attain. it is stated per terests acre.” at $45.00 “Perpetuities our Constitution that and monopolies contrary genius the appears in It affidavits from submitted a government, free never be- shall for petitioner’s with connection motion * * allowed, Vernon’s Ann.St. summary judgment that Paul Mattern died Const, this art. The effect of 1959; in in his widow that 1952 and died provision constitutional and Article petitioner Mattern since the adopt Vernon’s was to Ann.Tex.Civ.Stats. parents with his has lived with his against per- English common-law rule surviving mother until her death con- petuities. public high one of This $2,237.82 tributed some in the form of policy recognized in that but this it is State support. supplies and services their a a construction which render contract will Shortly death, peti- after his mother’s testamentary disposition enforceable option given sought to tioner exercise preferred even rather than invalid is to claiming to him in his mother’s against perpetuities is in- though the rule for his advanced credit the sums holding In that certain which volved. deeds pay parent’s support offering did trusts not violate the rule created up in acre accordance balance to $45.00 Court, Kelly perpetuities, in testamentary clause above with the set Womack, 153 Tex. S.W.2d out the result above noted. with said: the outset it be noted At Mattern, principle “It is cardinal and Monika intentions of Paul will, shall grantor govern. intention of joint seem reason- the makers of ‘ intent definite, especially judicially ascertained “The ably when clear conveyor normally determined light surrounding of the cir- viewed employed in con language concerning out and above set cumstances entirety and veyance, as an dispute. read no Mr. and Mrs. which there its the circumstances of formu light of living with one their sons. were Mattern ’ Rust, supra. (Tex. would, Rust anticipated that lation.” he It was 262, approved Civ.App., 211 S.W.2d money advance their wants and Court, Supreme Tex. for them essential household needs procure 462). services, settled also exact amount of S.W.2d medical an instrument where definitely not be could ascertained constructions, open equally to two will. making time of of the In accepted which renders justly will be to treat their children order void, valid rather Appeals than Court of to reach the Civil intend grantor complaint assumed conclusion that a was made of instrument rather legal Appeals’ to create Court holding with Neely v. illegal. question. However, than one which is reference to this supra. (Tex.Com.App., 239 Brogden, considered and * * * part 192) judgment upon S.W. based the doc- trine, adopt we will a liberal rule of con- opinion “We are that even struction and contentions consider though of time im limitation no parties raised *4 the relating to both the trustees, upon posed intention the the against perpetuities rule re- unlawful indicate, clearly the grantor (cid:127)of would upon straints alienation. they imply, and the law would length to reasonable given were be First, per- we against consider the rule carry their (cid:127)of time in which to out petuities. obligation. reasonable time What that will, all of the Under would be would involve the the estate real involved passed v. simple facts and Parks in fee circumstances. nine the named Powell, Tex.Civ.App., testatrix, children Mattern, 56 323 the S.W.2d Monika points, Tex. (Reversed on 126 “to other share in share alike the division 1 338, 725).” title, however, thereof.” (as S.W.2d This to the interest eight children) the was Kelly v. cites and follows Womack option incumbered an under which Chris Moore, 398, 190 Henderson v. 144 Tex. Mattern could paying the land in was 800 which the Texas rule S.W.2d to the other devisees sum of the $45.00 stated as follows: acre, less such sum as he have con- parents’ support. tributed to his The Court perpetuities against “The rule ren- Appeals considered that this was attempts any ders invalid will which an interest in land could which extend any create interest estate or future beyond life the Mattern. Of by possibility may not become course, if the vested in Chris Mattern or in vested within a life lives did not constitute an interest in land but the testator’s death and personal purely it him, expire was thereafter, twenty-one years and when upon problem his death involving and no necessary gestation.” perpetuities against rule would be en- perpetuities against authority The rule countered. There is relating proposition to restraints on aliena options the doctrine the character al nature, of a tion are somewhat similar here involved create no interest in land. See, though they upon proceed do not identical Annotation 162 c. A.L.R. 1. 584. principles. If, A hand, liberal view must be taken although option the other appellants’ (Herzog et to construe creating order be considered as an interest points in al.) optionee their brief land in that could enforce a question, relating raising conveyance upon payment price, option unlawful an would not offend similarly A must be taken of provided reasonably broad view could (Mattern) rehearing appellee’s motion for contemplated by said that it the settlor pref Gray, Against Perpetuities” 1. a discussion of a constructional For “The Rule see, validity, Ed.) (4th probably 5 Powell on Real § erence stems from Property, Gray opinion Dungannon 777. The statement of § Baron Parke’s “every Eng.Rep. Smith, will or settlement is 12 Cl. & F. 1523. exist, Kelly as if Rule construed did not The rationale of v. Womack is provisions philosophy and then to the so construed more consistent with remorselessly applied.” expressed Gray. rule is to be Powell than with that however, Powell, his option which bound option he enforced that the should reconvey during assigns life his heirs optionee and hence alone Weitzmann, Railway Company for the sum See, time. Weitzmann Options notice. £100 six months written Ind.App. 161 N.E. Court, speaking primarily through Sir testamentary instruments created option Jessel, George life held expiring with construed as often Annotation, reconvey A.L.R. covenant to was obnoxious to optionee. time of Prop perpetuities2 reference With Law of In the American 2d 1214. option, prescribed that: the time element in the it is said erty (Vol. 2456) Rolls, reading after the Master indi- by an given “If covenant, following remarks with made the individual, if to an vidual and/or reference thereto: to be construed can be point “Now it is unlimited in both only during exercisable appear to be does not to me lives, plainly the of these *5 time, possible to insert a limit of be Per- the Rule invalid under words, ‘within a put in the cause petuities.” time’, any words or other reasonable petitioner primary of the attack The exactly the be limiting the holding the Court of parties. the contrary to the intention of argument that it upon the Appeals centers point only It of unlimited and nature reasonably the appears from obviously so to intended time but is language involved, the will purpose of the company do not want railway be. The cir- surrounding the employed therein now, they do not know land the makers thereof, ever, that cumstances it, their they that but want option to Chris intended that the will may bargain it is that whenever within a rea- be exercised Mattern should company required for the of the works of the surviv- the death time after sonable time the owners or owner thus issue is The ing maker will. convey being of the land are Ap- squarely drawn. The Court of very company. essence of The a con- option creates says peals that it be indefinite the contract is that shall dura- of unlimited land tingent interest cannot, point as in time. You with petitioner counters tion. Kemp Railway Com v. Eastern South at option, if exercised that assertion L.R., Ch.App. 364], pany [1872, all, within reasonable be exercised must the limitation intendment insert such reasonable that within time and the land is to taken before option. exercise his elected he has executing the works had time for expired, time for for in this case involving the matter of case leading already execution of works had with the rule options in connection expired. appears to me therefore London and South that of perpetuities is admitted in plain (and indeed was Company (1882) Railway v. Gomm Western Respondents) argument English 562, decided L.R. 20 Ch.Div. point of time.” unlimited in Railway case, this Appeal. In supplied) (Italics conveyed certain land Company pur report Kemp railway v. required From the South by it for longer no Railway Company (mentioned in retaining, Eastern George Powell poses forbidding petuities also, Thaw, or rule restraints on Pa. Barton 2. See 578; 570; Ann.Cas.1916D, 162 A.L.R. American Maddox alienation” A. Keeler, Ky. Institute’s Restatement of the Law Law 177 S.W.2d Property, 578, Annotation, “Option §§ A.L.R. 162 purchase against per- of rule violation
.317 appears pany right in- such Gomm) agreement way additional require they may volved as follows: at the rate of read $60 acre, per privilege dollars with the company “The shall erect and for necessary any changing water course passenger ever maintain a station road, in the construction said piece of land numbered in the and maintain snow build company’s plan, ground one acre of fence for the term of five each months shall be considered as covered year any point where said snow said sum of £2000 for site fence necessary be deemed station; purposes and if the two hundred feet of either side company require shall than one more land, way on said described purposes grouñd acre of for the site or beginning ending November 15th and station, any additional said April year; succeeding 15th of each ground any purpose beyond agree and I damage to settle all specified hereto, in the said schedule tenant on account of his leasehold: they pay shall for the same at the rate Provided, company that said railroad of £100 acre.” years shall during the 1906 and 1907 In construing agreement, construct Lord its said railroad on said - Hatherley, pay land to Lord said: the said Chancellor S. dollars, H. Rice the sum of $150.00 agreement “This would not run for obligation then this shall be of force *6 time, price merely all fixed the law; company and virtue in but if said leaving instead of it to be settled neglect pay refuse shall to jury arbitration —that all. is date, said sum within 1 month from why
I cannot understand it should be party may then damages either have the thought roving agreement to be a ex- Right Way provided of for assessed as land, tending over 200 acres of or for by law.” period an indefinite of time. Supreme While reversed so, “Then reading agreement upon decree the trial grounds of court company may, I hold that the within inequitable specific that it would be to order the time within they which are to performance, the Court considered the con- works, finish their have whatever land agreement tention that the was obnoxious they want at £100 acre.” perpetuities against to the rule and found In Rice v. Lincoln & North Western that it was not. The Court said: Co., Railroad 88 Neb. 129 N.W. similar somewhat situation to that dis- proposition plain- “The second of the Kemp closed in was considered tiff as stated in the brief is as follows: Supreme Court Nebraska. The case contract, ‘The said assuming it to be upon was tried the counterclaim of the valid, otherwise was void so far as it company which sought railroad and was sought bestow to the railroad granted specific performance a decree of option company the to addi- convey ordering Rice certain prop- to real lands, because it tional violated the rule erty provided it. The contract to that Rice perpetuities.’ appears against to be convey a would certain tract of land to the company conceded if the company provided and in railroad addition exercise of that: time, not limited and the as to contract (Rice) agree
“We by express further said terms had been extended proceed company may ‘heirs, executors, the construc- administrators, land, tion of said road over assigns said and the owner or owners we will sell to the said com- railroad the time the lands for con- should and this Mattern persons purchase, with
veyed and all who Chris pur entitled would to deduct from the stated might be interested therein/ price money chase he against perpetuities. “such sums of violate not it does have us company during contends that advanced our life The money time.” The two reasons: advanced this sums so violate personal against would undoubtedly constitute claims its terms The contract it is limited estates of the of the which only; and makers plaintiff to this rail- prescribed of the would have the construction settled time to surviving terms times after the again express death maker road which years named in of the will. the two limited to contract. reasonably think it We can be said that we take “In the view instrument, from the nature of the proposition of defendant second employed wording therein circum and the necessary deter- point, is not this stances surrounding execution of construction the true mine whether will, op that the makers intended that the given the deed contract this tion given to Mattern should Chris cov- contain pursuant should thereto exercised within a reasonable time. doWe land. with the running enants construe clause one which at defendant proposition of second tempts preserve claim contract should point, Mattern the estate of the survivor the exercise limit be construed him, an indefinite giving nor as his of the construc- the time assigns heirs right. road, think we tion of beyond extend time allowed * * * that, if the agreement is by law for the due administration require ‘additional company should Monika Mattern estate settle * ** way construc- in the claims said ment of estate. re We road,’ plaintiff shall con- said tion of *7 gard Kemp of the cases v. South Eastern it, paid vey and be therefor $60 L.R., Railway (1872, Ch.App. Co. 7 364 then, option, the The of acre. exercise & and Rice v. Lincoln North Western years which in the two limited to was Co., 88 Neb. 129 425), Railroad N.W. completed, to be was the construction by analogy as conclusion supporting the we perpetuities the and have reached. not violated.” should here It also be noted that the option with an concerned are here We Kentucky Keeler, case Maddox of v. 296 having in contained a will which Ky. 162 A.L.R. 177 S.W.2d and an estate of the settlement purpose option repurchase an involved which property. of the testator’s the distribution parties contracting intended be the should of options, that generally been stated has It duration. In this indefinite case we hold essence”, v. First Lusher is of the “time makers the did that the will not intend to Worth, Bank of Fort Tex.Civ. National option pur- Mattern an give to Chris e., Tex. ref. r. App., n. 260 S.W.2d duration but of indefinite chase rather one Contracts, we 38. When § Jur.2d exercised, all, had to be if at during which in paragraph the will here the examine period of time bearing a reasonable some volved, part that in the first find we relationship required with the time to ad- thereof, property is to the children left finally settle minister Monika the will “share and makers estate. Mattern thereof.” Then alike the division -share gives option clause which follows contrary A holding only would not from Mattern unrealistic insofar be somewhat as the other children. In connection (cid:127)each probable intention of the makers of restraint alienation. The Restate- a concerned, will but from ment Property undesirable classifies restraints standpoint. indicated, op policy classes, namely, As above alienation into (1)' three disabling restraints, generally tions of limited duration (2) promissory re- they informally stated, though often (3) even straints and Re- forfeiture restraints. may importance proper great be statement of Property, the Law of Vol. 4r ty standpoint. wording Imposed When “Social Restrictions on the Crea- option compel Property Interests, does not a construction tion of il- parties given time element lustrations intended 6 American thereunder. unlimited, will not con Law of Property seq. should court et 26.6 §§ provision strue an contract or a Texas will authorities cited the Court an granting to run for indefinite Civil disabling restraints involve destroy validity support time and thus general rule that such re- option provision. has been stated straints are However, invalid. in the case imply go option, courts far of an disabling so is- direct reasonable time when limit no time involved. There is no direction to the expressly Magee Mercantile- convey, stated. v. devisee him ordering not to but Company, option operates Commerce Bank Trust rather the indirection 1022, 124 conveyance Mo. While S.W.2d 1121. the devisee’s be de- mentioned, Womack, Kelly through case of option. above feated the exercise of the Options deal which an did not with the time within conveyances attached to or devises- exercised, did consider should be whereby land party one receives the the time trustees property subject to- to the of another powers should in them exercise the vested do same not fit into the usual against per- certain deeds. classifications restraints petuities was involved and this Court direct There are numerous cases in which such ly imply options held that law that the upheld have been evidenced given “were reasonable Generally trustees the cases heretofore mentioned. carry obliga time in which to out their legality courts have tested of these Kelly regard options by tions.” We Womack as against perpetuities point upon question primarily before us. problem relating to the II obnoxious estates, Clause the will is not vesting time of the of future but we perpetuities.3 to the rule intimating do no wish to be understood as *8 any
that valid is if the time for the period pre- been said exercise thereof We think what has is by that effectively against perpetuities. answers the assertion also scribed the rule Mo., option provision See, is as a Hurlburt, unenforceable Kershner v. 277 S.W.2d critique against per- agreement 3. a of the rule For breach of an not to con- see, vey; petuities applied options, “The to or against Perpetuities” subject (e) Law Rule to or termination Common terminate to by part Barton and Mr. Professor W. Leach all or conveyed. of the interest Prop- Tudor in American Law Owen erty, Vol. 24.56. § (2) If a on restraint alienation is of the type (1), described Subsection Definitions. 4. § (a), disabling is a Clause it restraint. alienation, (1)A restraint on as that (3) a on If restraint alienation is of the- phrase Restatement, is in this used type (1), described Subsection by attempt an an otherwise effec- (b), promissory it is a Clause re- conveyance or to tive contract cause straint. conveyance. later a void; (a) (4) be a on to If alienation is of the impose liability type (b) (1), contractual to on the described in Subsection conveyance (c), one who makes the later it Clause a forfeiture re- liability from a when results straint. right It instant of testator’s death the suggested 619. has been devised, by fixing possibility, might not perpetuities adapted interest ill options plus years within a and a for vest life limitation of reasonableness gestation. con- are insofar transactions as commercial approach possibly an cerned and Petitioner’s contention is that he had through as to restraints the doctrines reasonable after the testatrix died to promising. alienation would be more purchase the land to deduct from the and 24.56. Property American Law of purchase price the advancements made l.c. 162 A.L.R. Cf. Annotation him to the testatrix her husband. However, alienation the restraint on if socially employed to attain doctrine is by possibility petitioner If had died the results, reason- desired element of day testatrix, after the indebtedness the time ableness of limit due to him would have testatrix not do must be considered. survived his death the benefit of his applicable mechanically apply the acquire heirs and devisees. The inhibit disabling and thus restraints give attempted future interest she employment contractual of desirable a personal right, him was not dying with unnecessarily provisions testamentary him, but his have death it would contract circumscribe the freedom who vested his heirs or devisees likewise Be- power testamentary disposition. could have deducted his advancements ap- it must fore stricken purchase price. possibility By from the relationship to the pear some that it bears these devisees or heirs could have died undesirable governing evil which the rules attempting any without to exercise prevent. designed to restraints purchase. involved, present option limited socially point Petitioner makes the that a will is is not period of reasonable liberally give to be it is valid construed effect' to hold that device. We undesirable the intention of the testator. This is the and enforceable. rule, But usual of course. a construed or indicated, judgment of the As above expressed intention falls when the will Appeals is reversed Court of Civil necessity vest the inter- does future court is affirmed. of the trial within the time not condemned est perpetuities. possibility If peri- might not vest within that the estate JJ., dissenting. SMITH, GRIFFIN od, the intention testator im- rejected by and is Article Sec- material SMITH, Justice. tion the Constitution State. provides appears that the will When respectfully dissent. I beyond vesting an estate possible *9 peti- giving provision in the to will period, is condemned perpetuity respond- purchase unlimited to tioner time regard without to the in- fundamental law against the rule violates title ents’ fee And tention of the testator or devisee. upon a also is perpetuities and time” never be read a “reasonable into permit by possibility a would a will that beyond to vest the perpetuity estate future apply to “reasonable- seeks Petitioner by pos- period. Once it determined escape against rule to in order ness” might interest not sibility the future vest perpetuities. period, perpetuity inquiry unimportant, per- ceases, intention becomes violates the determine To if no at affords relief. There- very the test is whether reasonableness petuity rule
321 it, fore, Womack, property. ordi Property Kelly in 153 “[i]n rule v. * * * 371, upon by nary ‘extends 903, legal signification Tex. 268 S.W.2d relied in Court, application. every species to has no valuable ” * * Womack, terest *.’ Womack v. provision option, If the as an treated 307; 299, Spann 141 172 v. Tex. S.W.2d gift bequest, petitioner, not a or Dallas, 350, City 235 111 S.W. Tex. option is not likewise and is condemned 1387; 513, Department 19 A.L.R. aided or by reasonableness intention. Finance, Financial Institutions v. General 227 N.E.2d A.L.R.2d Ind. 86 10 Gray’s Perpetuities”, In Against “Rule 436. Edition, page Fourth it is at 362: said purchase Whether an valid is a “Where, however, a contract raises an property right, or an invalid claim vio- equitable right property in which the against perpetuities, is lating the rule obligee can chancery enforce in determined testator’s the date of the specific decree for performance, such Gray’s Perpetuities, death. Fourth Edi- equitable right subject the Rule p. 235, cited; tion, and numerous decisions against Perpetuities. was decided This 834; Menefee, v. Anderson Tex.Jur. by the Appeal Court of in London & Tex.Civ.App., 904; Neely v. 174 S.W. South Gomm, Western R. Co. where v. Brogden, Tex.Com.App., 239 S.W. purchase an land, unlimited void; as to held overruling day On the when the testator dies Birmingham Canal Co. Cart v. possibility petitioner might have been not wright.” purchase, able might have de- he not purchase, might sired to or he have died A.L.R., In 162 page 581: purchasing. By possibility, without his “According to weight authority might heirs or not devisees or successors jurisdictions in applying the common- purchase, desire to or could law against perpetuities, op- die purchasing. without one was com- No tion to property, real un- pelled perpetuity pe- within the limited as to the its exercise Keeler, As in riod. was said Maddox beyond extending limited supra: perpetuities, vio- lates such rule and is invalid.” “Assuming, deciding, without that the option retained deed created Court of Civil pages land, equitable future interest quoted approval with from Maddox susceptible inheritance, it is obvious Keeler, Ky. 177 S.W.2d that such interest is a limitation opinion A.L.R. 578. That alienation, power of absolute so keeping with great weight authority long Gray’s as it remains in existence. apparent from the cases cited in the de- Perpetuities, Against The Rule Fourth cision and the annotations in 162 A.L.R. Edition, p. 355, 323. Such inter- Sec. seq. et est, therefore, being subject inheritance, No doubts person would remain a limitation contract power or to devise an of alienation until the not viola- tive perpetuities. Op- concluded to owner *10 by contract, convey tions are pass the tract sell or another. Thus, Property devise descent. exercise C.J.S. 2, p. 151; genera- Code, pass Vernon’s Texas generation Probate could 17A, p. tion, might finally Vol. Sec. vest in one material until The thing or property, expiration res after coming being itself is also into acquire it, it, dispose twenty-one years ten months to use or to after at the a life or lives ”***
of the creation of the estate. correctly- Appeals Civil Court of will under provision of the
held that per-
consideration violates re-
petuities an unlawful and constitutes judgment
straint be af- should
firmed. J., joins this dissent.
GRIFFIN, CO., Inc. MOVING & STORAGE
TARRY Petitioners, al., et al., of Texas et
RAILROAD COMMISSION Respondents.
No. A-9210.
Supreme Court of Texas.
April 3, 1963. May
Rehearing 22, 1963. Denied
Christopher Worth, Bailey, Fort & petitioners. Wilson, Gen., Atty. (Wag- Austin
Will Sentell, Carr, Austin), Marvin goner Asst. Gen., Hatched, Austin, Atty. Lanham & respondents.
CULVER, Justice. Railroad Originally Commission specialized motor carrier granted four cer-