Keeling v. Keeling

• Decision Date: 26 June 1947
• Citation: 203 S.W.2d 601,185 Tenn. 134
• Parties: KEELING et al. v. KEELING et al.
• Court: Tennessee Supreme Court

203 S.W.2d 601

185 Tenn. 134

KEELING et al. v. KEELING et al.

Supreme Court of Tennessee.

June 26, 1947

Rehearing Denied Aug. 1, 1947.

Appeal from Chancery Court, Davidson County; Wm. J. Wade Chancellor.

Suit in equity by Edgar P. Keeling and others against Clementine Keeling, a minor, and others, to secure a construction of a portion of the will of Mary Alice Whitworth, deceased. From a decree construing the will, all parties appeal.

Decree modified, and cause remanded.

On Petition to Rehear.

GAILOR Justice.

In Part II of the Chancery Court of Davidson County, the original bill was filed in this cause, to secure a construction of part of Item 2 of the will of Mary Alice Whitworth, which was probated in Davidson County in October 1926: '2nd. I give my little home with 3 and one eighth acres to my nephew Edgar P. Keeling and his children. He is not to sell the place and if he does not use it for a home it is to be rented and kept up and he and his children to have the rents therefrom.'

Edgar P. Keeling, his wife, and their three adult children were complainants, and their minor child, Clementine Keeling, was made a defendant. Guardians ad litem were appointed for the minor and for the unborn children of Keeling. The cause was heard by the Chancellor on the pleadings and a stipulation. The will was made an exhibit to the bill.

The Chancellor held that the restraint of sale, quoted in the second sentence of the Item above, was 'not sufficient to have the provision declared void'; and further that 'The Court is of the opinion that the testatrix devised the property in question to Edgar P. Keeling and his children, and that the said Edgar P. Keeling and his children, who were living and in being, at the time of the death of said testatrix, took the property in question in fee, but the Court is constrained to hold, that under the plain and unmistakable terms of the will, it was the intention of the testatrix to place a limitation on the sale of said property during the life time of her nephew, Edgar P. Keeling.'

By the final decree entered pursuant to this opinion it was adjudged that the children of Keeling living at the time of the death of the testatrix were,--Leonard Ridley Keeling, Mary V Keeling Simpkins, Margaret Keeling Cole and Clementine Keeling. All parties excepted to the final decree and prayed and perfected appeals to this Court.

It would uselessly prolong this opinion to state the assignments of error severally. The contentions of the parties on the appeal are as follows:

The complainants and Clementine Keeling, who has come of age since the decree and joined with complainants on the appeal, contend: '* * * that the testatrix, Mrs. Mary Alice Whitworth devised the property in question, either to one of the complainants, Edgar P. Keeling, in fee simple, or that she devised this property outright, to the complainant, Edgar P. Keeling and his children then living, as tenants in common, and that the unborn children of Edgar P. Keeling had no interest in said real estate whatsoever.'

They further contend that the restraint on alienation attempted by the second sentence of the second Item of the will was void.

The guardian ad litem for the unborn children of Keeling also insists that the attempted restraint on alienation is void, but contends that the effect of the devise is as follows: 'The testatrix, under paragraph Second of the will, created an active testamentary trust and named her nephew, Edgar P. Keeling, trustee. The legal title to the property vested in Edgar P. Keeling at the death of the testatrix, but said Edgar P. Keeling is to hold said property for the joint use and benefit of himself and all of his children; that at the death of Edgar P. Keeling the trust will terminate, and at his death all the children he may then have will be vested with the legal title to said property.'

Clearly, all questions presented by the appeal reduce themselves to two, viz.: (1) What estate was created by the devise in Item 2 of the will and who were the beneficiaries thereof? (2) Was the restraint on alienation attempted therein valid or invalid? It is unfortunate, perhaps, that because all parties have appealed, the Chancellor's opinion is not supported by brief of the law upon which the opinion was based.

We can find no exception to the rule that conditions subsequent preventing alienation of an estate in fee, even for a limited time, are universally held void as inconsistent with the incidents and nature of the estate devised and contrary to public policy. Overton v. Lea, 108 Tenn. 505, 556, 68 S.W. 250; Vol. 1 Bogert's Trusts and Trustees, § 220, page 702; Perry Trusts, Vol. 1, sec. 386; Scott Trusts, Vol. 1, sec. 150; Sizer's Pritchard on Wills, sec. 161; Potter v. Couch, 141 U.S. 296, 315, 11 S.Ct. 1005, 35 L.Ed. 721; Cushing v. Spalding, 164 Mass. 287, 41 N.E. 297; Fowlkes v. Wagoner, Tenn.Ch.App. 46 S.W. 586.

But restrictions by conditions subsequent or conditional limitation, even if they be absolute restraints on alienation, are generally held valid if annexed to an equitable estate not greater than a life estate. This upon the theory that the unrestricted fee is vested somewhere else. Thompson Wills, sec. 389; Rood Wills, (1926 Ed.) sec. 607; DePeyster v. Michael, 6 N.Y. 467, 57 Am.Dec. 470; Conger v. Lowe, 124 Ind. 368, 24 N.E. 889, 9 L.R.A. 165; Roberts v. Stevens, 84 Me. 325, 24 A. 873, 17 L.R.A. 266; Lampert v. Haydel, 96 Mo. 439, 9 S.W. 780, 2 L.R.A. 113, 9 Am.St.Rep. 358; Yost v. McKee, 179 Pa. 381, 36 A. 317, 57 Am.St.Rep. 604; Trammell et al. v. Johnston et al., 54 Ga. 340; Weller v. Noffsinger, 57 Neb. 455, 77 N.W. 1075; Dulin v. Moore, 96 Tex. 135, 70 S.W. 742.

Our first duty is to carry out the will or intent of the testatrix, rejecting, if possible, a construction which will defeat that intent, and if the law permits, adopting a construction which will dispose of her property in the way that she willed that it be done.

The word 'children' is a word of purchase, not of limitation (Stubbs v. Stubbs, 30 Tenn. 43; Bowers v. Bowers, 51 Tenn. 293, 299), unless there be language in the will to change the usual connotation of the term, and we find no such language in the will before us here.

The general rule is that a devise to 'A and his children' vests the legal title in the parent, he and each child having an equal equitable interest during the life of the parent, and upon his death, the children then in esse taking the property in fee. Bowers v. Bowers, supra.

In the Bowers case the Court had for construction a devise of lands to a woman 'to have and to hold the same to her and her children for their special use and benefit forever.' It was held that the parent took legal title to the land devised, but in trust for herself and her children. The trust ceased at the parent's death and the estate itself, eo instanti, passed to the children in fee free from any limitation.

However, it has been declared in several cases by this Court construing devises with language almost identical with the one before us here, that a 'slight indication of an intent' that the children shall not take jointly with the parent, gives a life estate to the parent with remainder over to the children in fee. Bunch v. Hardy, 71 Tenn. 543; Beecher v. Hicks, 75 Tenn. 207, 209; Cannon v. Apperson, 82 Tenn. 553, 576; Ragsdale v. Mabry, 67 Tenn. 300; Sizer's Pritchard on Wills, sec. 446. What the 'slight indication' may be is hard to say, but it has been found in a majority of Tennessee cases. Bunch v. Hardy, supra, 71 Tenn. at page 549; Harris v. Alderson, 36 Tenn. 250; Moore v. Simmons, 39 Tenn. 545, 546; Turner v. Ivie, 52 Tenn. 222; Hix v. Gosling, 69 Tenn. 560, 568; Squires v. Old, 26 Tenn. 454; McCall v. McCall, 1 Tenn. Ch. 500, 504; Balch v. Johnson, 106 Tenn. 249, 254, 61 S.W. 289.

We have no difficulty in finding and find that the 'slight indication' in the present case was the restraint on alienation which is valid only if the nephew takes an estate for life. Thompson Wills, sec. 289, and authorities cited, supra. This construction carries out the expressed intention of the testatrix and prevents injustice to after-born children. Bowers v. Bowers, supra; Haywood's Heirs v. Moore, 21 Tenn., 584; Union & Planters Bank & Trust Co. v. Alsobrook, 6 Tenn.App. 264, 270.

A condition which prohibits the alienation of an estate for a limited period, is reasonable and valid if it is not subversive of the estate and does not destroy its ultimate alienable and inheritable character: 'But conditions which prohibit the alienation of the estate to a particular person or persons or for a certain limited period, if reasonable, are not subversive of the estate; they do not destroy or limit its alienable or inheritable character.' Sizer's Pritchard on Wills, sec. 161, p. 196.

This statement of Pritchard's was apparently accepted as a sound rule in Bradford v. Leake, 124 Tenn. 312, 319, 137 S.W. 96, Ann.Cas.1912D, 1140, though the case there was decided on other grounds.

It is for the Court to say what is 'reasonable restraint' on the facts of the case. There...