Sprinkle v. LeslieSprinkle v. Leslie
- Reporters:
- , ,
- Before:
- Conner
Aрpellee, Mary Leslie, joined by her husband, William Leslie, brought this suit to recover of appellants the title and рossession of a certain lot of land and dwelling thereon, situated in the city of Fort Worth, Tarrant County, devised to her by one Minerva McCay, deceased, by will duly probated, and which, so far as pertinent, is as follows: “I give and devise to Mary Leslie (a sister of Edward Moore) a lot of land and improvements in the north part of the city of Fort Worth, said Tarrant County, that I purchased of George B. Gay and wife about November 30, 1896, as the deed shows of recоrd in Tarrant County, vol. 106, page 633, and to identify the land I refer to it. If I- should sell that land I will invest the proceeds in a farm which will appear in my name, and it shall vest in said Mary Leslie as this aforesaid lot of land will do if I do not sell it. I direct that she shаll not sell and convey or mortgage the said land during her life. She may rent it and use the rents. After Mary’s death the title shall vest in her children and their descendants, their heirs and assigns.”
It is agreed that Minerva McCay had title, and the facts show that аfter the probate of the will and after appellee Mary Leslie had, by virtue thereof, assumed contrоl of the premises, she, together with her husband, duly executed for a valuable consideration a trust deed upоn said premises, which was subsequently duly foreclosed by the execution of the power of sale therein given, аnd that appellants now have full title by virtue of the sale under the trust deed, if Mary Leslie was empowered to execute it. The trial court concluded: “The property in controversy was never the homestead of Mary Leslie and her husband. 2. By the terms of the will a life estate only in the property in controversy was acquired by Mary Lеslie, with remainder over to her children named *357 in the petition, and the restriction contained in the will against Mary Lеslie’s power to alienate her interest was valid, and the defendants and those under whom they claim, back to the common source, having purchased with notice of the provisions of said will, the plaintiffs are therefоre entitled to recover of defendants the property sued for, and judgment should be rendered accordingly.” We agree with the conclusion that by the terms of the will a life estate only was acquired by Mary Leslie, but are оf opinion that the court erred as assigned in its conclusion and judgment to the effect that the restriction in the will аgainst alienation was valid.
Mary Leslie had been reared by Minerva McCay, and was a married woman with children аt the time of the execution and probate of the will, but the children have been given no interest or right in presentí to the property in question, or in or to the rents thereof. The only right or interest of the children evidenced by the terms of the will is that of remaindermen. They have only the right to the proper care and preservation оf the property and of the title and possession after the termination of the mother’s life estate. The will imрoses no penalty nor reserves right of re-entry,-—as for condition subsequent broken,—for a violation of the provision against alienation, and it follows, we think, that the case is plainly distinguishable from the cases invoked by aрpellees, of Simonton v. White, 93 Texas, 50; Wallace v. Campbell, 53 Texas, 229; Monday v. Vance, 92 Texas, 428; Nichols v. Eaton, 91 U. S., L. Ed., Bk. 23, p. 255. General expressions in some of these cases are doubtless to be found favoring appellees’ contention, but all of them are cases in which a trust was clearly created in the instrument under consideration, and in which accompanying provisions, express or implied, in restraint of alienation were upheld as necessary to the fulfillment of the trust, and the opinions are to be interpreted in the light of this fact. We have here, however, a case in which an absolute or complete life estate, unaccompanied with an appointment of a trustee or the creation of аny trust expressed in the will, is devolved upon Mary Leslie, and while authorities to the contrary may possibly be found, we сonclude that under the rule of the common law in force with us the provision in restraint of alienation is repugnаnt to the right conferred by the devise of such life estate, and that hence such provision must give way. The rule of the common law, as we understand it, is thus expressed by Lord Eldon in Blandon v. Robinson, 18 Ves., 433: “If property is given to a man for his life, thе donor can not take away the incidents of a life estate.” See, also, Laval v. Staffel, 64 Texas, 370; Bouldin v. Miller, 87 Texas, 359, 26 S. W. Rep., 134; Hamilton v. Jones, 75 S. W. Rep., 554; Mandlebaum v. McDonnell, 29 Mich., 78; McLeary v. Ellis (Iowa), 6 N. W. Rep., 571; Thompson v. Murрhy (Ind.), 37 N. E. Rep., 1094; Schouler on Wills, 2 ed., secs. 601-602; Page on Wills, sec. 634; Murray v. Green, 64 Cal., 363; Langdon v. Ingram’s Guardian, 28 Ind., 360; Munroe v. Hall, 97 N. C., 206, 1 S. E. Rep., 651; Pritchard v. Bailey, 113 N. C., 521, 18 S. E. Rep., 668.
*358 As before stated the devise to Mary Leslie сonferred upon her a full freehold title which under our law thereupon became her separate lеgal estate, and she had every right therein of any other owner of property, including the power of aliеnation. Speer on Married Women, sec. 99, and authorities cited. The restricting words, under consideration, therеfore, we think, must be construed as advisory merely, and not as a limitation of the estate devised.
Appelleеs also interposed the defense that the property in question was their homestead at the time of the execution of the trust deed under which appellants claim. But the court found against them on this issue, and the evidence is not such as to enable us to set aside this finding, which, together with all other findings of fact by the trial court, is therefore adopted.
These conclusions require us to reverse the judgment of the court below, and here render it for appellants, and it is so ordered.
Reversed and rendered.
Writ of error refused.