Sprinkle v. Leslie

• Decision Date: 11 June 1904
• Citation: 81 S.W. 1018
• Parties: SPRINKLE et al. v. LESLIE et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 1018

81 S.W. 1018

SPRINKLE et al. v. LESLIE et al.^*

Court of Civil Appeals of Texas.

June 11, 1904.

Appeal from District Court, Tarrant County; Irby Dunklin, Judge.

Action by Mary Leslie and another against B. F. Sprinkle and another. From a judgment for plaintiffs, defendants appeal. Reversed.

Q. T. Moreland, for appellants. Jas. C. Scott, for appellees.

CONNER, C. J.

Appellee Mary Leslie, joined by her husband, William Leslie, brought this suit to recover of appellants the title and possession of a certain lot of land, and dwelling thereon, situated in the city of Ft. Worth, Tarrant county, devised to her by one Minerva McCay, deceased, by will duly probated, and which, so far as pertinent, is as follows: "I give and devise to Mary Leslie, (a sister of Edward Moore) a lot of land and improvements in the north part of the city of Fort Worth, said Tarrant county, that I purchased of George B. Gay and wife about Nov. 30th, 1896, as the deed shows of record in Tarrant county, vol. 105, page 633, and to identify the land I refer to it. If I should sell that land I will invest the proceeds in a farm which will appear in my name, and it shall vest in said Mary Leslie as this aforesaid lot of land will do if I do not sell it. I direct that she shall not sell and convey, or mortgage the said land during her life. She may rent it and use the rents. After Mary's death the title shall vest in her children and their descendants, their heirs and assigns." It is agreed that Minerva McCay had title, and the facts show that after the probate of the will, and after appellee Mary Leslie had, by virtue thereof, assumed control of the premises, she, together with her husband, duly executed for a valuable consideration, a trust deed upon said premises, which was subsequently duly foreclosed by the execution of the power of sale therein given, and that appellants now have full title by virtue of the sale under the trust deed, if Mary Leslie was empowered to execute it. The trial court concluded: "The property in controversy was never the homestead of Mary Leslie and her husband. (2) By the terms of the will a life estate only in the property in controversy was acquired by Mary Leslie, with remainder over to her children named in the petition, and the restriction contained in the will against Mary Leslie's power to alienate her interest was valid; and the defendants and those under whom they claim, back to the common source, having purchased with notice of the provisions of said will, the plaintiffs are therefore entitled to recover of defendants the property sued for, and judgment should be rendered accordingly." We agree with the conclusion that by the terms of the will a life estate only was acquired by Mary Leslie, but are of opinion that the court erred as assigned in its conclusion and judgment to the effect that the restriction in the will against alienation was valid.

Mary Leslie had been reared by Minerva McCay, and was a married woman, with children, at the time of the execution and probate of the will; but the children have been given no interest or right in præsenti to the property in question, or in or to the rents thereof. The only right or interest of the children evidenced by the terms of the will is that of remaindermen. They have only the right to the proper care and preservation of the property and of the title and possession after the termination of the mother's life estate. The will imposes no penalty, nor reserves right of re-entry, as for condition subsequent broken, for a violation of the provision against alienation; and it follows, we think, that the case is plainly distinguishable from the cases invoked by appellees, of Simonton v. White, 93 Tex. 50, 53 S. W. 339, 77 Am. St. Rep. 824; Wallace v. Campbell, 53 Tex. 229; Monday v. Vance, 92 Tex. 428, 49 S. W. 516; Nichols v. Eaton, 91 U. S. 716, 23 L. Ed. 255....