Crawford v. Solomon

• Decision Date: 02 April 1923
• Docket Number: 22261
• Citation: 95 So. 686,131 Miss. 792
• Court: Mississippi Supreme Court
• Parties: CRAWFORD et al. v. SOLOMON et al

95 So. 686

131 Miss. 792

CRAWFORD et al. v. SOLOMON et al

No. 22261

Supreme Court of Mississippi

April 2, 1923

INFANTS. Chancery court may sell land of minor for reinvestment, even where remainder, if alienation not prohibited by will or deed during period when property may be held.

Under section 159 of the Constitution of 1890, and under section 2419, Code of 1906 (Hemingway's Code, section 1980, the chancery court, in a proper proceeding supported by proper evidence, may sell the land of a minor for purposes of reinvestment, even where such interest is a remainder provided there is no prohibition against alienation in the will or deed during the period when property may be held under section 2765, Code of 1906 (Hemingway's Code section 2269).

2 WILLS. Alienations, of property constituting life estate may be prohibited for life of devisee.

A testator devising a life estate to his wife may prohibit alienation of the property in which the life estate exist during her life and such provision is legal and binding there being no statute or public policy prohibiting it. Section 2765, Code of 1906 (Hemingway's Code, section 2269), not prohibiting it, and such section declaring the policy of the state in that regard is the full measure of restraint. Leigh v. Harrison, 69 Miss. 923, 11 So 604, 18 L. R. A. 49, cited.

HON. A. J. McINTYRE; Chancellor.

APPEAL from chancery court of Chickasaw county, HON. A. J. MCINTYRE, Chancellor.

Suit by Mrs. Sudie Crawford and others, against Edward Solomon and others. From a decree dismissing the bill, plaintiffs appeal. Affirmed.

Affirmed.

J. E. Harrington, for appellant.

In view of the brief for the appellees we have decided to go further in the discussion of the power of a testator to provide for the restraint of alienation of property transferred by will where a life estate is established, and especially the power to restrain the alienation of a life estate. There is apparently considerable conflict of authority upon this point, but when the authorities are properly analyzed it will be seen that the conflict is more apparent than real. There are two kinds of life estates; one of which is where the legal title is vested in a trustee with power to handle the estate and account to the life tenant for the profits or income from the life estate. The latter class of life estates is what is commonly called spendthrift trusts. As to this class of life estates our supreme court has decided that restraints on alienation are valid. Leigh v. Harrison, 69 Miss. 923, 11 So. 604, 19 L. R. A. 49. But a careful reading of the decision in that case will show that the court was careful to limit the application of the rule there announced to equitable life estates. We find this language. "Our statute against perpetuities would seem to express the whole legislative will on the subject, and to fix the limit which may not be exceeded, but within which restraints against alienation may be lawfully imposed, at least upon equitable estates for life which, whatever may be the rules as to legal estates, either in fee or for life, would seem not to be subject to the objection that the limitation is in derogation of the estate." From which it will be seen that the court in that case was dealing alone with equitable life estates and not legal life estates. Here there was no equitable life estate, no trustee was appointed to manage the estate. As to legal life-estates, our supreme court has never decided as to whether a restraint of alienation on them is valid or invalid. But by the weight of authority elsewhere it will be seen that such restraints are held to be invalid and void. Mattison v. Mattison, 53 Or. 254, 133 Am. St. Rep. 829, 100 Pa. 4, 18 Ann. Cas. 218; Sprinkle v. Leslie, 36 Tex. Civ. App. 356, 81 S.W. 1018; Seay v. Cockrell, 102 Tex. 280, 115 S.W. 1160; Millard v. Beaumont, 194 Mo.App. 69, 185 S.W. 547; Blackstone Bank v. Davis, 21 Pick. (Mass.) 42, 32 Am. Dec. 241; Butterfield v. Reed, 160 Mass. 361, 35 N.E. 1128; Hunt v. Hawes, 191 Ill. 343, 54 N.E. 395; Henderson v. Harness, 176 Ill. 302, 52 N.E. 68; Ehrisman v. Sener, 162 Pa. 577, 29 A. 719; Verdier v. Youngblood, 24 Am. Dec. 417; 24 Am. & Eng. Ency. Law, 870, and note.

In addition to the authorities cited in the original brief on the power of the chancery court to order a sale of an infant's property, and especially his land, we desire to cite the statute authorizing the guardian of a minor to sell the land for re-investment. Section 2419, Code 1906, Hemingway's Code, section 1980. Under this section the guardian is given the power, "where in the opinion of the chancellor or court, it is to the interest of the ward to convert any of his property, real or personal, into money for the purpose of changing the character of the investment, the court may, as in other cases, order it done, and how the money shall be reinvested." Also under section 2422, Code 1906, Hemingway's Code, section 1983, the guardian can petition the chancery court to sell the real estate of the ward, by making the next of kin parties to the suit.

Of course no such sale could be had under this proceeding, but this is a suit for construction of the will, and to determine under the provisions of the will that a sale could be had under any of these statutes, then proper proceedings will be instituted to make necessary parties to a suit for sale of land for reinvestment. The only time that these statutes have been under consideration as to life estates is in the case of Robertson v. West, 67 Miss. 213, 7 So. 224. In that case a life estate was created, by will in money, with remainder to minor children. A trustee was provided to protect and administer the life estate for benefit of life tenant and remaindermen. The trustee with the approval of the chancery court invested the funds in land for the benefit of the life tenant during her life, with remainder to the children. An appeal was taken by the guardian ad litem from the order of the chancellor approving the purchase of the land with the trust funds, the life tenant having died. In this case the court merely decided that sufficient reason had not been shown for investing the funds in land, because the facts did not make the statute applicable. But here we have a different state of facts. The proof shows conclusively that the property does not provide sufficient income to pay the taxes and keep the property in repair. The chancellor finds as a matter of fact that it is for the best interest of all the parties to have the land sold; there are yet remaindermen in all probability not in esse, and to hold that this property cannot be sold until the youngest of these remaindermen reach the age of twenty-one years, would practically mean that some twenty-five thousand dollars worth of property must remain for some thirty years without profit to anyone, the improvements thereon to be allowed to gradually go to waste as time passes, and finally defeat the intention of the testator and instead of giving his wife and children and his children's children the use and benefit of the property, the objects of his bounty will be forced to expend the funds that they themselves realize from their labor to keep the property from going to waste and thereby the property becomes a burden instead of a benefit. That such was not the intention of the testator is clearly shown by the will where it provides that the property shall not be sold until the death of Mrs. Sudie C. Crawford, the widow. This shows clearly that the testator did not intend to restrain the sale of this land until the youngest grandchild should reach the age of twenty-one years. While our court holds that the chancery court has no inherent power to sell the lands of an infant, contrary to the great weight of authority, still the statute giving the chancery court authority, through the guardian of the infant, to sell real estate of ward for reinvestment, does not limit to the estate in fee, and we think that a just and reasonable construction, as suggested in the case of Clark v. Foster, 110 Miss. 543, 70 So. 583, would be to hold that this statute authorizes the sale of any and all of the property of an infant, whether in fee, life estate or in remainder. It is a remedial statute and should be liberally construed in order to effect and apply the remedy intended; it does not limit the remedy to any class or kind of property, and the courts should not engraft exceptions on the statute.

Jeff Busby, for appellee.

The learned chancellor held that he was without powers, there being no statute giving him the power in this state, to direct a sale of the remainder interest of the minors in the property devised. While other questions are presented by the pleadings of appellants, it seems they have practically abandoned all save this one. In the brief for appellants counsel states: "There seems to be but little doubt that the will does not violate the statute against perpetuities and cites authorities, he does not insist on this point as being worthy of notice.

Appellants under division "2" in their brief cite a number of authorities on the point that the provision in the will which provides that his land shall not be sold during the life of Mrs. Sudie C. Crawford is a restraint on alienation and is therefore void. There are authorities for and against this view on wills and conveyances worded similar to this. This proposition is fully discussed in the case of Kerns v. Carr, -- W.Va. --, 95 S.E. 606; L. R. A. 1918E 568.

An extensive note is appended to this decision in L. R. A entitled "Validity of restraint on alienation of legal life estates" where many decisions are collated and discussed. This, however, is not the point in the case before the court. Has the court power to decree...