Cast v. National Bank of Commerce Trust & Sav. Ass'n of Lincoln

• Decision Date: 05 February 1971
• Docket Number: No. 37212,37212
• Citation: 183 N.W.2d 485,186 Neb. 385
• Parties: Richard F. CAST, Appellee, v. The NATIONAL BANK OF COMMERCE TRUST & SAVINGS ASSOCIATION OF LINCOLN, Nebraska, Executor, Trustee and Residuary Legatee and Devisee of the Last Will and Testament and Estate of William J. Webermeier, Deceased, Appellant.
• Court: Nebraska Supreme Court

Page 485

183 N.W.2d 485

186 Neb. 385

Richard F. CAST, Appellee, v. The NATIONAL BANK OF COMMERCE TRUST & SAVINGS ASSOCIATION OF LINCOLN, Nebraska, Executor, Trustee and Residuary Legatee and Devisee of the Last Will and Testament and Estate of William J. Webermeier, Deceased, Appellant.

No. 37212.

Supreme Court of Nebraska.

Feb. 5, 1971.

Syllabus by the Court

1. Where an estate in fee simple is devised, an attempt by the testator to prevent alienation by attaching conditions subsequent is ineffective and void for the reason that the conditions are repugnant to the estate created.

2. The intent statute, section 76--205, R.R.S.1943, is a rule of construction and does not have the effect of enlarging, limiting, or modifying any rule of substantive law that existed at the time of its passage or that has thereafter been created.

3. Upon the enactment of the Uniform Property Act, its provisions supersede conflicting provisions of the law of property existing prior to the effective date of the act.

4. A restraint on alienation in the form of a condition subsequent, forfeiting or terminating the fee simple estate, or providing for a limitation over upon the breach of the condition, is void as against public policy.

5. Conditions subsequent attached to a fee simple which restrain alienation are void whether such restraint is direct or indirect.

6. The rule against perpetuities has no application where conditions subsequent attached to a fee simple estate restrain alienability, since such conditions subsequent are void. Where conditions subsequent do not limit alienation and the conditions are otherwise valid, the rule against perpetuities may be applicable.

7. Conditions subsequent to a fee simple title which do not limit alienation and are otherwise valid, are enforcible if they are reasonable and do not affect adversely the marketability of the fee.

8. An estate of a decedent is liable for attorneys' fees for services rendered at the request of a devisee or legatee, even when successful, only when the services preserved the estate, added to its value, or were otherwise beneficial to it.

Samuel Van Pelt, Lincoln, for appellant.

Robert T. Cattle, Jr., Seward, for appellee.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.

CARTER, Justice.

An opinion on the merits of this case was filed on March 27, 1970. Cast v. National Bank of Commerce T. & S. Assn., 185 Neb. 358, 176 N.W.2d 29. Thereafter a reargument was ordered on motion for rehearing and this opinion is in response to the reargument.

The facts in the case are correctly stated in the first opinion. The question here considered is one of law involving the validity of certain provisions of the will of William J. Webermeier, deceased. The questioned provisions are: (1) That Richard Cast or one of his children within a year after testator's death shall move to and occupy the devised farm as his residence and domicile for a period of 25 years; (2) that the occupant shall within 1 year by appropriate legal action add the name 'Webermeier' to his legal name; and (3) that if any of the above conditions are not met as prescribed, presently or in the future, title to the real estate shall revert to the residuary legatee specified in paragraph VI of the will.

It must be conceded that in earlier times, prior to 1929 at least, conditions subsequent, attached to a devise in fee simple were held to be enforcible by this court. As an example, see Peters v. Northwestern Mutual Life Ins. Co., 119 Neb. 161, 227 N.W. 917, 67 A.L.R. 1311. In 1941, the Legislature enacted the Uniform Property Act which at least constituted a change of policy in certain areas of the real property law of this state. In 1953, this court, in Andrews v. Hall, 156 Neb. 817, 58 N.W.2d 201, 42 A.L.R.2d 1239, gave effect to the legislative change in public policy and held: 'We do not say that a testator may not create a vested fee simple estate subject to a condition subsequent, or a determinable or defeasible fee. What we do say is that a restriction against alienation of a vested fee simple estate is not any one of these, nor, since it is void, can it be used as the sole basis for the creation of any of these estates. A restraint on alienation in the form of a condition subsequent, forfeiting or terminating the fee simple estate, or providing for a limitation over upon breach of the condition, is void. * * * The right of alienation is inherent in the vested fee simple estate and it arises by virtue of the fact that such an estate is created. The nature of estates in fee simple determinable, estates in fee simple subject to a condition subsequent, and estates in fee simple defeasible upon a condition subsequent, are fully discussed in Ohm v. Clear Creek Drainage Dist., 153 Neb. 428, 45 N.W.2d 117. A perusal of that case will demonstrate that a restriction against alienation of a vested estate in fee simple is no part of, nor incidental to, any one of these estates. Consequently, cases dealing with the creation of recognized common-law estates have no application to a restriction against alienation of a vested fee simple estate.'

In the instant case, the provisions in question are conditions subsequent to a fee simple title and have the effect of restricting alienation and provide for a limitation over for a breach within a period of 25 years; this for the reason that a breach of the conditions subsequent within 25 years would cause the title to go to the residuary legatee under the provisions of the will.

We deem it necessary to again point out the public policy involved in the enactment of the Uniform Property Act. In Ellingrod v. Trombla, 168 Neb. 264, 95 N.W.2d 635, we said: 'The act was drawn primarily to abolish anachronisms in the law of property, to abolish many out-of-date characteristics which have come down to us from the early feudal law of England, and which are out of place in the law of today, and also to correct many characteristics which have crept into the law from improper application of the early law and which can be gotten rid of today only by statutory enactment. * * * The purpose and policy of the Uniform Property Act is to make the law a much more modern and effective instrument in administering the law of property and to free courts and lawyers of the present from being compelled in cases involving the title to real property to wander in a labyrinth of ancient learning. The modernization of our real property law, including antedated provisions that serve no purpose in our modern ear, was long overdue when the Legislature enacted the Uniform Property Act into the statutory law of this state in 1941. The power of the Legislature to meet the need is not questioned. Its very purpose was to change the old order insofar as the conveyance of property was concerned. This is evidenced by the terms of the law which it enacted. By section 76--121, R.R.S.1943, it enjoined upon the courts the duty to construe the act so 'as to effectuate its general purpose to make uniform the law of those states which enact it.' From this it is made clear that the act is to be interpreted, where doubt as to its meaning exists, in conformity with the intentions of the drafters of the act.'

The rule that the devise of a fee simple subject to conditions providing for a forfeiture or reverter or limitation over upon breach are void, is the general rule announced by the courts of this country irrespective of the fact that there was no statutory authority for so doing. See the following cases: Newkerk v. Newkerk (N.Y.), 2 Caines 345; Wills v. Pierce, 208 Ga. 417, 67 S.E.2d 239; Pardue v. Givens, 54 N.C. 306; Stansbury v. Hubner, 73 Md. 228, 20 A. 904; Casper v. Walker, 33 N.J.Eq. 35. Where an owner of land in fee simple absolute makes an otherwise effective devise thereof to a named devisee and his heirs but if such devisee or his heirs during a fixed term of years attempt to transfer the land by any means, the land shall go over to another, the forfeiture restraint qualified only as to time is invalid. The first devisee has an indefeasible estate in fee simple. Restatement, Property, S. 406, Illustrations 1 and 2, pp. 2397, 2398. In view of the fact that the Uniform Property Act was drafted and promulgated by the American Law Institute as a joint undertaking with the National Conference of Commissioners on Uniform State Laws, it stands to reason that it is intended to be consistent with the Restatement of the Law of Property.

One of the primary incidents of ownership of property in fee simple is the right to convey or encumber it. It is the general rule that a testator may not create a fee simple estate to vest at his death and at the same time restrict its alienation. This is because conditions which restrict alienation are repugnant to the very estate the testator has created. Sections 76--299, 76--2,100, 76--2,101, and 76--2,102, R.R.S.1943, are cited in our former opinion as supporting the validity of the conditions contained in the will. We point out, however, that the foregoing sections of the statute do not purport to create a new estate nor to expand the existing law on the subject. The intention of the testator is clear from the will. But the intent statute is a rule of construction that cannot have the effect of changing substantive law. 'We reiterate, however, that this intent statute does not have the effect of changing substantive law and is, in fact, declaratory of a rule of construction long adopted by the courts. We have held that it relates only to rules of construction and does not enlarge or limit, or in any way modify, any rule of substantive law that existed at the time of its passage or that thereafter has been created. Stuehm v. Mikulski, 139 Neb. 374, 297 N.W. 595, 137 A.L.R. 327; Majerus v. Santo, 143 Neb. 774, 10 N.W.2d 608. We adhere to these holdings.' Andrews v. Hall, Supra.

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