In re Estate of Gray

• Decision Date: 30 March 1914
• Citation: 146 N.W. 722,27 N.D. 417
• Court: North Dakota Supreme Court

146 N.W. 722

27 N.D. 417

IN THE MATTER OF THE ESTATE OF JOHN D. GRAY, Deceased. JOHN HENDERSON et al. v. JULIA ANN GRAY et al

Supreme Court of North Dakota

March 30, 1914

Rehearing denied April 13, 1914.

Appeal from District Court, Barnes County; J. A. Coffey, J.

From a final order adjudging void certain provisions of a will devising real property, upon the ground that the same operate to unlawfully suspend the power of alienation, the petitioners for the probate of such will appeal.

Reversed.

Reversed and remanded.

Page & Englert, for appellants.

The will here in question does not operate to suspend the power of alienation. Hagen v. Sacrison, 19 N.D. 160, 26 L.R.A.(N.S.) 724, 123 N.W. 518; Robert v. Corning, 89 N.Y. 226; Dillenbeck v. Dillenbeck, 134 A.D. 720 119 N.Y.S. 134; Sawyer v. Cubby, 146 N.Y. 192, 40 N.E. 869; Garvey v. McDevitt, 72 N.Y. 556; Re Heberle, 155 Cal. 723, 102 P. 935; Re Pforr, 144 Cal. 121, 77 P. 825.

The devise to the son was subject to the life interest of the widow, and is an unconditional estate. Torpy v Betts, 123 Mich. 239, 81 N.W. 1094; Murphy v. Whitney, 140 N.Y. 541, 24 L.R.A. 123, 35 N.E. 930.

The absolute power of alienation is not suspended, because there were at all times persons in being who could convey an absolute fee in possession. Sawyer v. Cubby, 146 N.Y. 192, 40 N.E. 869; 18 Am. & Eng. Enc. Law, 377; Thatcher v. St. Andrew's Church, 37 Mich. 264; Case v. Green, 78 Mich. 540, 44 N.W. 578; State v. Holmes, 115 Mich. 456, 73 N.W. 548.

The testator had the right to select the life that should measure the period of suspension. Crooke v. King County, 97 N.Y. 421; Bailey v. Bailey, 97 N.Y. 460; Chaplin, Suspension of Power of Alienation, §§ 222, 227, 230; Case v. Green, 78 Mich. 540, 44 N.W. 578.

The absolute power of alienation is not suspended in violation of the statute of perpetuities so long as there are persons in being by whom an absolute interest in possession can be conveyed. Rev. Codes 1905, § 4745; Torpy v. Betts, supra; 18 Am. & Eng. Enc. Law, 377; Sawyer v. Cubby, 146 N.Y. 192, 40 N.E. 869; Garvey v. McDevitt, 72 N.Y. 556; Nellis v. Nellis, 99 N.Y. 505, 3 N.E. 59; Murphy v. Whitney, 140 N.Y. 541, 24 L.R.A. 123, 35 N.E. 930; Baldwin v. Palen, 24 Misc. 170, 53 N.Y.S. 520; Re Campbell, 149 Cal. 712, 87 P. 573; Fitz Gerald v. Big Rapids, 123 Mich. 281, 82 N.W. 56.

Where the beneficiaries are some permanent institution, or one to be created, and not natural persons in being, such provisions are void. Murphy v. Whitney, 140 N.Y. 541, 24 L.R.A. 123, 35 N.E. 930; Sawyer v. Cubby, 146 N.Y. 192, 40 N.E. 869; Fitz Gerald v. Big Rapids, supra.

If there are in existence persons who, by joining in a conveyance, or by successive releases, are able to pass the whole estate, the law is complied with. 18 Am. & Eng. Enc. Law, 377; Rong v. Haller, 109 Minn. 191, 26 L.R.A.(N.S.) 825, 123 N.W. 471, 806; State v. Holmes, 115 Mich. 456, 73 N.W. 548; Rose v. Rose, 4 Abb. App. Dec. 108; Yates v. Yates, 9 Barb. 324; Fitz Gerald v. Big Rapids, supra; Booth v. Baptist Church, 126 N.Y. 215, 28 N.E. 238; Haynes v. Sherman, 117 N.Y. 433, 22 N.E. 938; Sawyer v. Cubby, 146 N.Y. 192, 40 N.E. 869.

The amounts to be paid other beneficiaries by the beneficiaries under the will are mere charges upon the land. Radley v. Kuhn, 97 N.Y. 26; 30 Cyc. 1504.

Taylor Crum, for respondent.

The creation of the limitation or condition in a will takes place at the death of the testator. The absolute power of alienation is equivalent to the power of conveying an absolute fee. Re Walkerly, 108 Cal. 627, 49 Am. St. Rep. 97, 41 P. 776; Tucker v. Tucker, 5 N.Y. 417.

Any conveyance by the heirs would be liable to be defeated by the nonexercise of the conditions precedent imposed upon the sons. The executors could not convey an absolute title in fee. The will is illegal. Garvey v. McDevitt, 72 N.Y. 564.

By the terms of the will there is left a period of two years, during which the power of alienation might be suspended. Cruikshank v. Home for the Friendless, 113 N.Y. 337, 4 L.R.A. 140, 21 N.E. 65; Haynes v. Sherman, 117 N.Y. 433, 22 N.E. 939.

The only persons who can convey a complete title are those who are actually in being at the time when the sale is made. Trowbridge v. Metcalf, 5 A.D. 318, 39 N.Y.S. 245.

In the case at bar, there are conditions precedent which are uncertain of fulfilment. State v. Holmes, 115 Mich. 456, 73 N.W. 549; Booth v. Baptist Church, 126 N.Y. 215, 28 N.E. 239; Leonard v. Burr, 18 N.Y. 107; Cruikshank v. Home for the Friendless, 113 N.Y. 337, 4 L.R.A. 140, 21 N.E. 64; Rong v. Haller 109 Minn. 191, 26 L.R.A. (N.S.) 825, 123 N.W. 471, 806; Re Walkerly, 108 Cal. 627, 49 Am. St. Rep. 97, 41 P. 777; Crew v. Pratt, 119 Cal. 139, 51 P. 42; Whitney v. Dodge, 105 Cal. 197, 38 P. 636.

The duration of designated lives must always be, and be made, the ultimate measure of duration. Other measures may be adopted, but it matters not, so long as they cannot extend the period of suspension beyond designated lives. Re Hendy, 118 Cal. 657, 50 P. 753; Re Cavarly, 119 Cal. 406, 51 P. 630; Hawley v. James, 16 Wend. 120.

OPINION

FISK, J.

In April, 1911, one John D. Gray died testate, leaving certain real and personal property in Barnes county. The provisions of his will, so far as material to the question presented, are as follows:

"II. Unto my wife, Julia Ann Gray, I will and bequeath all of the personal property in my possession at the time of my death and a life interest in and to my real estate, more particularly described as the north one-half of section twenty-eight, and the southeast one-fourth of section twenty-one, all in township one hundred forty of range sixty in Barnes county, North Dakota (N.1/2 28, and S.E.1/4 21-140-60), it being my wish and direction that she retain full possession and enjoy the income from said real estate during the period of her natural life, but this interest and title shall terminate promptly at her death.

"III. Subject to the aforesaid life interest of my wife, Julia Ann Gray, and the following further provisions: (a) That within two years next succeeding the death of my wife, Julia Ann Gray, he pay or cause to be paid unto my daughter, Ruth Beleal, or her heirs, the sum of fifteen hundred dollars ($ 1,500); (b) that he pay or cause to be paid unto my daughter, Myra Pieldman, or her heirs, within two years next succeeding the death of my wife, Julia Ann Gray, the sum of fifteen hundred dollars ($ 1,500), I will and bequeath unto my son, Arthur Pierce Gray, or his heirs, the north one-half of section twenty-eight, township one hundred forty, range sixty, (N.1/2 28-140-60).

"IV. Subject to the aforementioned life interest of my wife, Julia Ann Gray, and the further provision that within the two years next succeeding the death of my wife, Julia Ann Gray, he pay or cause to be paid unto my son, James Burley Gray, or his heirs, the sum of five hundred dollars ($ 500), I will and bequeath unto by son, George H. Gray, the southeast quarter of section twenty-one, in township one hundred forty, of range sixty (S.E.1/4 21-140-60)."

Thereafter a petition in due form was presented to the county court for the probate of such will, and one Rachel M. Zellers, a daughter of the deceased, opposed the allowance of such probate upon the ground, among others, "that said alleged will is void, as the intent of the testator to give the remainder in fee to heirs of Julia Ann Gray is legally impossible, as the intention of the testator would put the freehold in abeyance; that no provision is made for any disposition of the decedent's real estate in case Arthur Pierce Gray and George H. Gray, or either of them, fail to pay certain money to other heirs at law; and that there is an attempt to suspend alienation longer than the continuance of the lives in being at the testator's death. For a period of two years after the death of Julia Ann Gray, the real estate attempted to be devised might belong to no one, there being no devisee who has not attained his majority, as appears by the petition for proof and probate of the alleged will."

The county court overruled such objection and allowed the probate of the will, from which decision Rachel M. Zellers appealed to the district court, which court reversed the decision of the county court, holding such will of no validity in so far as the testator attempted to devise the real property therein described. From such decision this appeal is prosecuted.

Counsel, in their original briefs and orally, argued the case mainly upon the assumption that the devises to Arthur Pierce Gray and to George H. Gray were subject to conditions precedent, and that as a consequence the decision must turn upon the question of law as to whether by paragraphs 3 and 4 of the will the testator attempted to suspend the power of alienation for any period in excess of that permitted by the Code, §§ 4744 and 4745, which are as follows:

"Sec. 4744. The absolute power of alienation cannot be suspended by any limitation or condition whatever for a longer period than during the continuance of the lives of persons in being at the creation of the limitation or condition, except in the single case mentioned in § 4772."

"Sec. 4745. Every future interest is void in its creation, which by any possibility may suspend the absolute power of alienation for a longer period than is prescribed in this chapter. Such power of alienation is suspended when there are no persons in being by whom an absolute interest in possession can be conveyed."

Appellants' counsel earnestly contend that under the paragraphs of the will aforesaid the power of alienation is not unduly suspended contrary to § 4745. Numerous authorities are cited and relied upon in support of their...