Pritchett v. Turner

• Court: Alabama Supreme Court
• Writing for the Court: ALMON; TORBERT
• Citation: Pritchett v. Turner, 437 So.2d 104 (Ala. 1983)
• Decision Date: 05 August 1983
• Parties: Carolyn McCreary PRITCHETT and Wilsie McCreary Gillespie v. Mary Elizabeth M. TURNER, etc., et al. 81-741.

Page 104

437 So.2d 104

Carolyn McCreary PRITCHETT and Wilsie McCreary Gillespie v. Mary Elizabeth M. TURNER, etc., et al.

81-741.

Supreme Court of Alabama.

Aug. 5, 1983.

George R. Fusner, Jr., Jackson, Tenn., and J. Milton Coxwell of Coxwell & Coxwell, Monroeville, for appellants.

David T. Hyde, Jr., Evergreen, and Broox G. Garrett, Sr., Brewton, for appellees.

ALMON, Justice.

This is an appeal from a summary judgment, rendered in a declaratory judgment action, in which certain conditions annexed to a devise of real property were held void.

Wynell McCreary and Wilson Ashley McCreary were married from 1946 until their divorce on March 24, 1975. Two children were born during their marriage, namely, Lynn Ashley McCreary, a son, and Mary Elizabeth M. Turner, a daughter.

On November 5, 1977, Wilson died testate. His will was admitted to probate in Conecuh County, Alabama, with his daughter Mary serving as administratrix. The disputed section of the will provided as follows:

"I will and devise unto my two children, Lynn Ashley McCreary and Mary Elizabeth McCreary Abbott [now Mary Elizabeth M. Turner], jointly, share and share alike equally, all of my real estate owned by me at the time of my death, or to which I may be entitled, absolutely and in fee simple. TO HAVE AND TO HOLD unto my said two children, jointly, share and share alike, equally, absolutely and in fee simple, forever.

"PROVIDED, HOWEVER, that the above devise is made subject to the following conditions: If at any time after my death my said two children, or either of them, should attempt to convey any part of my said lands to their mother (my ex-wife), or should they, or either of them, allow to her the right of possession or use or benefit of said lands, or any part thereof, then and in any of said events, the devise herein made to said child or children shall be and become void, and the interest herein devised unto said child or children shall vest in my two sisters, Carolyn McCreary Pritchett and Wilsie McCreary Gillespie, jointly, share and share alike, absolutely and in fee simple."

On April 23, 1979, Lynn McCreary died intestate, leaving as his only heirs at law his mother, Wynell, and his sister, Mary, who was also appointed as administratrix of his estate.

On November 6, 1979, an action for declaratory judgment was filed on behalf of both Mary, as administratrix of the estates of her father and brother, and Wynell, individually, against Wilson's sisters, Carolyn McCreary Pritchett and Wilsie McCreary Gillespie. The plaintiffs sought a determination of the rights of the parties under the second section of Wilson's will. The complaint stated that:

"5. A juticiable [sic] controversy exist [sic] between the parties in that the defendants are purported to claim an interest in the estate of Lynn Ashley McCreary by virtue of the provision of the will of Wilson Ashley McCreary providing for divestiture of title. As Lynn Ashley McCreary died intestate, with his only heirs at law being his sister, Elizabeth M. Turner, and his mother, Wynell McCreary, [the latter] would be entitled to an undivided one half interest in the estate of Lynn Ashley McCreary, and as such would be entitled to an undivided one fourth interest in the estate of Wilson Ashley McCreary under the laws of descent and distribution of the State of Alabama. However, because of the said provision referred to in said will the plaintiff Elizabeth M. Turner, as representative of the estate of Wilson Ashley McCreary and Lynn Ashley McCreary, is unable to ascertain how to disburse any settlements from the estates of Wilson Ashley McCreary and Lynn Ashley McCreary. Also, because of the provision referred to above in said will, there is a cloud on the title to the real estate owned by Wilson Ashley McCreary at the time of his death, and Elizabeth M. Turner is unable to sell or mortgage said property, as an individual or as the representative of said estates, because of the cloud on the title to said property."

Motions for summary judgment were filed by both the plaintiffs and defendants. The trial court granted the plaintiffs' motion, finding that the second paragraph of the second section of Wilson's will (hereinafter referred to as the divesting provision) was void as a matter of law.

We quote in part from the trial court's judgment:

"8. The plaintiffs contend that said provision is invalid as being an absolute restraint on alienation. This Court agrees with this contention of the plaintiffs. Should this provision be held valid, no one could purchase said property or take a mortgage on said property from Mary Elizabeth M. Turner or Wynell McCreary with the certain knowledge that the provision had not been breached. With the provision in effect, the title to said lands is completely unmarketable because the title to the property would be unsettled for as long as Wynell McCreary lived. If the provision is valid, no judicial action could ever finally settle the title as this case, if tried on the present facts, would not be res judicata as to any later acts which the defendants might claim breached the will. The law in Alabama is that once a fee simple estate has been devised, an absolute restraint on the power of alienation is void as against public policy. Libby v. Winston, 207 Ala. 681, 93 So. 631 (1922). Because of the said provision, no intending purchaser or mortgagee from Mrs. Turner or Mrs. McCreary could know with certainty that the provision had not been breached in some manner or would [not] subsequently be breached in some manner, thus preventing said intending purchaser or mortgagee from receiving a good and valid fee simple title. Therefore, the said provision must be held null and void. This Court has found no Alabama cases on this point, but the Minnesota case of Morse v Blood, 68 Minn. 442, 71 N.W. 682 (1892) concerned a provision in a will that was very similar to the provision in the McCreary will. The testator in the Minnesota case provided that the devisee should 'in no case give or bequeath one cent of said estate to any member of my family, or to any relation of her own'. In Morse, the Court held as follows:

" 'If the condition is good, any purchaser from plaintiff [of any] parcel takes it at the peril of subsequent forfeiture by any act done by plaintiff after the purchase amounting to a breach of the condition. Thus, plaintiff might give one of her relatives or one of the testator's family a meal of victuals out of the property left to her by her deceased husband, and it would forfeit the whole estate so devised to her, as well as that part of it which she had conveyed away to strangers as that part which she still held.'

"Should Mary Elizabeth M. Turner convey to a stranger her interest in all of the land with the exception of one acre, and subsequent to that conveyance she conveyed to her mother the one remaining acre, or allowed to her the right of possession or use or benefit of the one acre, then the conveyance to the stranger would fail if the provision is valid. This would be so even though there had been no breach of the provision at the time of the conveyance to the stranger. The Court further finds that this restraint clause of the will could be interpreted in such a manner that, if Lynn A. McCreary had, during his lifetime, and in spite of the strenuous objection of his sister, Mary Elizabeth M. Turner, conveyed one acre of said lands to his mother and placed her in possession of same, such action on his part would have divested him and his protesting sister of this inheritance as well and voided and/or forfeited all prior conveyances by either of them to strangers. Therefore, the Court finds that these provisions of said will create an absolute restraint of alienation.

"9. This Court further finds that the provision providing for forfeiture is null and void because of vagueness and uncertainty. The acts that would constitute 'the right of possession or use or benefit of said lands' are uncertain. This phrase has no definite legal construction or interpretation and can mean many things to many people. Title to real estate should not be subject to forfeiture on such uncertain, indefinite and vague conditions.

"WHEREFORE, the premises considered, it is ORDERED and ADJUDGED as follows:

"1. That the second paragraph of paragraph SECOND of the Last Will and Testament of Wilson Ashley McCreary, deceased, dated April 8, 1975, is held to be null and void and of no effect, and any interest present, future, contingent or otherwise allegedly created by said paragraph SECOND in said will in favor of Carolyn McCreary Pritchett or Wilsie McCreary Gillespie is likewise cancelled and held for naught.

"2. That Lynn Ashley McCreary and Mary Elizabeth McCreary Abbott took title to all real estate, owned by Wilson Ashley McCreary at the time of his death, or to which he was entitled, in fee simple absolute, without restriction upon said fee simple estate.

"3. That Wynell McCreary and Mary Elizabeth M. Turner inherited an undivided one-half ( 1/2) interest each in the estate of Lynn Ashley McCreary, deceased, according to the laws of descent and distribution in effect in Alabama at the time of his death...."

We initially find that the trial court improperly designated the divesting provision as an "absolute" restraint on alienation. We associate the modifier "absolute" with a provision which, without qualification, undertakes to deny the devisee of a legal estate in fee simple the power to alienate his acquired estate, or which, without qualification, undertakes to render such an estate forfeitable on any attempted alienation. See, 6 R. Powell and P. Rohan, The Law of Real Property, §§ 839, 840 (1981).

The divesting provision is qualified so that it does not completely prohibit the legal power to alienate. Only the mother, Wynell, is excluded as a permissible alienee: "If at any time after my death my said two children, or either of them, should...