179 Iowa 1295 | Iowa | 1917
1.Payment of debts and charges against his estate.
2. B'equest of $1,000 to his great niece, Marguerite Tracey.
3. Subject to the foregoing provisions, he devised one ninth of his entire estate to his half brother, Silas Porter; one ninth to the heirs of his half brother, Jared Porter; one ninth to the heirs of his sister, Nancy Yearous; one ninth to the heirs of his brother, James Porter; one ninth in equal parts to two named dar "liters of his brother, Isaac Porter; one ninth to the heirs of his brother, Caspar
On July 12, 1912, the testator executed a codicil to the foregoing will, providing as follows:
1. Directing the executors to pay a certain promissory note made by Ella A. Tracey to the Monroe National Bank and signed by himself as surety, and that the said Ella A. Tracey be released from any and all claims, direct or indirect, in favor of the testator or his estate.
2. A bequest to Ella A. Tracey of all his household goods and kitchen furniture.
3. Changing the devise made in the will in favor of two named daughters of his brother Isaac. Porter so as to give- another daughter, Sarah Rosenow, a one-third part of such devise.'
4. The fourth and last paragraph of the codicil is in the following form.:
“I desire that none of the real estate of which I die seized be sold for at least five years after my death, unless all legatees under my said will shall sign a written agreement or consent to said sale.”
The testator died February 7, 1914, after which the will and codicil were duly admitted to probate. On July 12, 1915, the plaintiff, James Porter, the son and only heir of Caspar Porter, deceased, named in said will, began this action for partition of the lands owned by the testator, A. J. Porter, at the time of his decease. The petition impleaded as defendants all the persons appearing to be entitled to any interest in said property under the terms of said will, and set forth the fractional shares or parts thereof owned or held by each of said individuals, claiming for himself, as the sole heir and representative of Caspar Porter, an equal one-ninth part. He further alleges that the property cannot be equitably-, divided in kind, vtnd asks that
In support of this argument, we are cited to the familiar authorities that a. grantor or devisor of a fee cannot burden it with restraints .upon its alienation, or in other words, he cannot devise an absolute estate in land and at the same time limit or restrict the devisee’s right of sale, which is one of the essential elements of absolute ownership. He cannot give the whole and withhold part. The authorities to this effect are quite universally followed by the courts, and we need not take time to collate or discuss them. The serious inquiry in this case is whether the devise is within the rule so established; or, in other word's, whether there is any insuperable repugnancy in the terms of the will, when read and construed as a whole in accordance with the apparent intent of the testator.
Counsel for appellant seem to treat the will and the subsequent codicil thereto as distinct and separate instruments, and say that the will as first executed devises an
“But if the condition be that the grantee shall not alien to ■ any particular persons, or within a reasonable limited period, these conditions shall stand, not being inconsistent with the nature of the estate granted. Coke-Litt. 223. * * *
Still more directly in point is the following from Gray’s Restraints on Alienation of Property (2d Ed.), Sec.'30: “Whatever the true doctrine may be, a prohibition against partition is not a restraint on alienation, as the undivided share is always assignable.”
In Hunt v. Wright, supra, the court also quotes from Platt on Covenants, 404, as follows:
“A grantor, when he conveys an estate in fee, cannot annex a condition to his grant absolutely restraining alienation; * * * such restrictions being imposed on him to prevent perpetuities; but short of that restriction, both parties may model it in what manner they please.”
Possibly the quoted declaration is overbroad, but it may be stated much less sweepingly and still sustain the devise in this case, including the temporary restraint on enforced partition. Quite in point with the case at bar is the case of Peterson v. Damoude, (Neb.) 152 N. W. 786., The will there under consideration devised land to the testator’s wife for life, and thereafter to his 13 children, adding to the devise the following, “provided, however, that said real estate shall not be disposed of nor divided among my children prior to the 5th day of October, 1921.” It will be seen that the condition that the property “shall not be disposed of or divided” is even a more comprehensive restriction than the one with which we have to deal, but the court reaffirms and sustains the rule of the authorities above cited, holding that such restriction is not within the rule against repugnancies. In Dee v. Dee, 212 Ill. 338, 354, the court holds that, while “the general rule is that an adult tenant in common may demand partition as a matter of right, * * * equity will not award partition at the suit of one in violation of his own agreement, or in violation of a condition or restriction imposed upon the estate by one
In Springer v. Savage, 143 Ill. 301, the testator devised his lands in express terms to his sons and daughters, and then, after some directions as to the method of arriving at an estimate of values for the purposes of distribution, he added a provision as follows:
“I want it positively understood that my landed estate * * * shall not be sold, under any consideration whatever, as long as any one or more of my sons or daughters remain single and desire to make it their home, unless so agreed by them.”
Because of this restriction, the court refused to enforce partition. See, also, Kepley v. Overton, 74 Ind. 448; Hill v. Jones, 65 Ala. 214; Leyrer’s Estate, 17 Pa. Co. Ct. 132; Young v. Young, (Ky.) 49 S. W. 1074; Cahill v. Cahill, 62 N. J. Eq. 157; Wells v. Houston, (Tex.) 56 S. W. 233.
We are, therefore, disposed to hold that the will and codicil in this case are to be construed as a single instrument, and that, when so construed, it operates to vest the devisees with the title to the property as tenants in common, subject, however, to the condition that, unless it be by common consent, a sale or partition thereof cannot be enforced until the expiration of the specified five-year period. It follows that the trial court rightly refused the relief prayed by appellant. Quite in point in principle is the discussion by the court in Elberts v. Elberts, 159 Iowa 332.
II. Appellant further argues that, as the provision of the codicil which provides for the five-year suspension of sale and partition is introduced with the words, “I desire,” it should be held to be only precatory, a mere wish on his part, something left to the discretion of the devisees, but
There is nothing in the context of these words in the present will which either requires or justifies the construction which appellant places upon them.
The result of this holding is that the plaintiff a.nd defendants get precisely what the testator provided for them. In accepting the gift made to them by the deceased, they must take it with all the legal restrictions which he saw fit to place upon it, and none of them suffer any wrong because the court refuses to decree them more.
The judgment below is therefore — Affrmed.