Mattern v. Herzog, A-9207

• Decision Date: 17 April 1963
• Docket Number: No. A-9207,A-9207
• Citation: 367 S.W.2d 312
• Parties: Chris MATTERN, Petitioner, v. Magadelina HERZOG et al., Respondents.
• Court: Texas Supreme Court

Page 312

367 S.W.2d 312

Chris MATTERN, Petitioner, v. Magadelina HERZOG et al., Respondents.

No. A-9207.

Supreme Court of Texas.

April 17, 1963.

Rehearing Denied May 22, 1963.

W. E. Barron, Nevasota, W. S. Barron, Bryan, Joe J. Newman, Houston, for petitioner.

A. K. Stewart, Darden, Fowler & Creighton, Conroe, Williams, Lee & Lee, Houston, for respondents.

NORVELL, Justice.

The Court of Civil Appeals was reversed a District Court's summary decree and held that a clause of Paragraph II of the last will and testament of Monika Mattern is invalid because it violates the rule against perpetuities and constitutes an unlawful restraint upon alienation. 359 S.W.2d 86. The clause in question purported to give Chris Mattern, a child of the testatrix, the right to purchase certain real estate from the other beneficiaries named in the will. We have reached the conclusion that this option clause is not invalid as held by the Court of Civil Appeals and we accordingly reverse that Court's judgment and affirm that of the District Court.

The Court of Civil Appeals makes the following statement of the case:

'Paul and Monika Mattern executed the duly probated joint will whereunder Mrs. Mattern, the survivor, took their estate and the property remaining passed at her death to their children. Their daughter Marie was devised 20 acres not here involved. Then follows paragraph II which reads as follows:

"The remainder of all our real estate, wherever located or situated, which we may die seized and possessed of we give and bequeath to our beloved children, Chris Mattern, Jack J. Mattern, Magadeline Herzog, Paul J. Mattern Barbara Mock, Reginia Gostslig, Johnnie Mattern, Agnes Pustka and Monika Mattern to share and share alike in the division thereof; however, this bequest is made to our said named children with the provision that our son Chris Mattern shall have the right to purchase from each of the other children their interest in said real estate for the sum of $45.00 per acre, and in making such purchase from said other children our said son Chris Mattern shall be entitled to deduct from the price of $45.00 per acre such sums of money as he may have advanced to us during our lifetimes.' (Italics ours)

'After Mrs. Mattern's death and the probation of the will, three of the children conveyed their interests to appellee (petitioner here). But the five appellant children, (respondents here) refusing to convey, although requested to convey be appellee, brought this suit to relieve their title of appellee's claim that he had the right under the will to purchase their interests at $45.00 per acre.'

It appears from affidavits submitted in connection with petitioner's motion for summary judgment that Paul Mattern died in 1952 and his widow died in 1959; that since 1951, the petitioner Chris Mattern has lived with his parents or with his surviving mother until her death and contributed some $2,237.82 in the form of supplies and services to their support. Shortly after his mother's death, the petitioner sought to exercise the option given to him in his mother's will by claiming credit for the sums advanced for his parent's support and offering to pay the balance up to $45.00 per acre in accordance with the testamentary clause above set out with the result above noted.

At the outset it may be noted that the intentions of Paul and Monika Mattern, the makers of the joint will, seem reasonably clear and definite, especially when viewed in the light of the surrounding circumstances above set out and concerning which there is no dispute. Mr. and Mrs. Mattern were living with one of their sons. It was anticipated that he would, from time to time, advance money for their wants and procure for them essential household needs and medical services, the exact amount of which could not be definitely ascertained at the time of the making of the will. In order to treat their children justly and equitably according to their lights, the parents placed a price upon the land, and provided that the son who had supported them could purchase the land from his brothers and sisters and take credit for such sums as he may have advanced for their support. This plan was quite simple in concept and it has been repeatedly said that courts in construing wills should consider the language used and in the light of the attendant circumstances determine the intent of the testator.

The respondents concede that a will could be drawn which would make effective the objective which the makers wished to attain. However, it is stated by our Constitution that 'Perpetuities and monopolies are contrary to the genius a free government, and shall never be allowed, * * *.' Vernon's Ann.St.Const. art. 1, § 26. The effect of this constitutional provision and Article 1 of Vernon's Ann.Tex.Civ.Stats. was to adopt the English common-law rule against perpetuities. This rule is one of high public policy but in this State it is recognized that a construction which will render a contract or testamentary disposition enforceable rather than invalid is to be preferred even though the rule against perpetuities is involved. In holding that certain deeds which created trusts did not violate the rule against perpetuities, this Court, in Kelly v. Womack, 153 Tex. 371, 268 S.W.2d 903, said:

'It is a cardinal principle that the intention of the grantor shall govern. "The judicially ascertained intent of a conveyor is normally determined by the language employed in the conveyance, read as an entirety and in the light of the circumstances of its formulation." Rust v. Rust, supra. (Tex.Civ.App., 211 S.W.2d 262, approved by the Supreme Court, 147 Tex. 181, 214 S.W.2d 462). It is also the settled rule that where an instrument is equally open to two constructions, the one will be accepted which renders it valid rather than void, it being assumed that a grantor would intend to create a legal instrument rather than one which is illegal. Neely v. Brogden, supra. (Tex.Com.App., 239 S.W. 192) * * *

'We are of the opinion that even though no limitation of time was imposed upon the trustees, the intention of the grantor would clearly indicate, and the law would imply, that they were to be given a reasonable length of time in which to carry out their obligation. What that reasonable time would be would involve all of the facts and circumstances. Parks v. Powell, Tex.Civ.App., 56 S.W.2d 323 (Reversed on other points, 126 Tex. 338, 86 S.W.2d 725).' ¹

Kelly v. Womack cites and follows Henderson v. Moore, 144 Tex. 398, 190 S.W.2d 800 in which the Texas rule was stated as follows:

'The rule against perpetuities renders invalid any will which attempts to create any estate or future interest which by possibility may not become vested within a life or lives in being at the time of the testator's death and twenty-one years thereafter, and when necessary the period of gestation.'

The rule against perpetuities and the doctrine relating to restraints on alienation are of a somewhat similar nature, although they do not proceed upon identical principles. A liberal view must be taken in order to construe appellants' (Herzog et al.) points in their brief in the Court of Civil Appeals as raising a question relating to an unlawful restraint upon alienation. A similarly broad view must be taken of appellee's (Mattern) motion for rehearing in the Court of Civil Appeals to reach the conclusion that a complaint was made of the Court of Civil Appeals' holding with reference to this question. However, as the Court of Civil Appeals considered and in part based its judgment upon the doctrine, we will adopt a liberal rule of construction and consider the contentions raised by the parties relating to both the rule against perpetuities and unlawful restraints upon alienation.

First, we consider the rule against perpetuities.

Under the will, the real estate involved passed in fee simple to the nine named children of the testatrix, Monika Mattern, 'to share and share alike in the division thereof.' This title, however, (as to the interest of eight of the children) was incumbered by an option under which Chris Mattern could purchase the land by paying to the other devisees the sum of $45.00 per acre, less such sum as he may have contributed to his parents' support. The Court of Civil Appeals considered that this was an interest in land which could extend beyond the life of Chris Mattern. Of course, if the right vested in Chris Mattern did not constitute an interest in land but was purely personal to him, it would expire upon his death and no problem involving the rule against perpetuities would be encountered. There is authority for the proposition that options of the character here involved create no interest in land. See, Annotation 162 A.L.R. 581, 1. c. 584. If, on the other hand, although the option be considered as creating an interest in land in that the optionee could enforce a conveyance upon payment of the purchase price, such option would not offend against the rule provided it could reasonably be said that it was contemplated by the settlor that the option should be enforced by the optionee alone and hence during his lifetime. See, Weitzmann v. Weitzmann, 87 Ind.App. 242, 161 N.E. 385. Options created by testamentary instruments are often construed as expiring with the lifetime of the optionee. Annotation, 44 A.L.R.2d 1214. In the American Law of Property (Vol. 6, § 2456) it is said that:

'If the option is given by an individual and/or to an individual, and if the option can be construed to be exercisable only during one or both of these lives, plainly the option is not petuities.'

The primary attack of the petitioner upon the holding of the Court of Civil Appeals centers upon the argument that it reasonably appears from the nature and purpose of the will involved, the language employed therein and the surrounding circumstances thereof, that the makers of the will intended that the option to Chris Mattern should be...