Wool v. Fleetwood

• Decision Date: 15 November 1904
• Citation: 136 N.C. 460,48 S.E. 785
• Parties: WOOL et al. v. FLEETWOOD.
• Court: North Carolina Supreme Court

48 S.E. 785

136 N.C. 460

WOOL et al.

v.FLEETWOOD.

Supreme Court of North Carolina.

Nov. 15, 1904.

VALIDITY 01? WILL—RESTRAINT OF ALIENATION —PUBLIC POLICY —ESTATE CREATED—"LAWFUL HEIRS" IN SENSE OF "HEIRS."

1. The provision of a will directing that none of testator's real estate be sold by his wife, to whom it was given for life, or disposed of in any way during her life, is void, as against public policy.

2. After giving his real estate to his wife for life, testator directed that his "estate remain in the name of [testator's] estate five years after the death of" his wife, and be administered by a person selected by the surviving heirs. Held, that this provision did not, on the death of testator, interrupt the immediate descent of the land to the heirs, and they took a vested estate in remainder.

3. Testator directed that, after the expiration of the life estate of his widow, his real estate be equally divided between his two children, to be held by them during their lives, and at their death to go to their lawful heirs, if any, and. if there be none, then to the lawful heirs of testator. Held, that on the death of testator's widow the estate would vest absolutely in testator's two children; the word "heirs" being one of limitation, within the rule in Shelley's Case.

4. The use in a will of the word "lawful, " qualifying the word "heirs, " is not sufficient of itself to show an intention not to use the word "heirs" in its ordinary legal sense, as a word of inheritance or of limitation.

5. A limitation over to the lawful heirs of testator on the death without heirs of testator's children, to whom the estate was given, does not render the estate of such children contingent or defeasible.

Appeal from Superior Court, Perquimans County; Geo. H. Brown, Judge.

Submission of controversy, without action, between Elizabeth A. Wool and others, as plaintiffs, and J. J. Fleetwood, as defendant. From a decree for plaintiffs, defendant appeals. Affirmed.

This is a controversy, submitted without action, in which the plaintiffs seek specific performance of a contract with the defend ant by which they undertook and agreed to sell, and the defendant to buy, 125 acres of land, known as the "Saunders Tract." The land originally belonged to Jacob Wool, who devised it to the plaintiffs in the manner set forth in bis will, the material items of which are as follows:

"(3) I give, devise and bequeath my estate and property, real and personal, unto my wife, Elizabeth Arnold Wool, the same to be held by her during her natural life and the income from said property shall go to her for her support.

"(4) I do hereby constitute and appoint my said wife, Elizabeth Arnold Wool, my sole executrix of this my last will and testament without bond to settle my estate.

"(5) I order and direct that none of my real estate be sold by my wife or by my heirs, or disposed of in any way during her natural life.

"(6) I order and direct that my estate remain in the name of Jacob Wool's estate five years after the death of my wife, Elizabeth A. Wool, and at her death the surviving heirs shall select an administrator who shall qualify according to law and shall manage the estate and make a settlement with the heirs, once a year, of all money he has on hand to their credit; upon a failure to do so the heirs may select another administrator if they deem it necessary.

"(7) I order and direct that at the expiration of five years after the death of my wife, Elizabeth A. Wool, my son Leonard Jackson Wool and Elizabeth shall select three commissioners and make an equal division of my estate between themselves, Leonard Jackson and Elizabeth Wool, who shall own and occupy said property during their natural lives and, at the death of Leonard Jackson and Elizabeth Wool, the property shall go to their lawful heirs, and should they have no surviving heirs the property shall go to my lawful heirs.

"(8) I order and direct that the administrator shall receive as compensation for his services one and one-fourth per cent, for receiving and one and one-fourth per cent, for disbursing whatever money may come in hand belonging to my estate."

The devisees all survived the testator, are plaintiffs in this controversy, and are of full age, unmarried, and without any children. The executrix, Elizabeth A. Wool, qualified as such, and has fully settled the estate of her testator. Prior to the 15th day of June the defendant duly contracted with the plaintiffs to purchase of them the tract of land herein first described, in fee simple, at the sum of $1,200, and the plaintiffs contracted to convey to him a good and indefeasible title in fee to the same; and before the commencement of this action the plaintiffs, Elizabeth A. Wool, Leonard J. Wool, and Elizabeth Wool, executed and duly tendered to the defendant, J. J. Fleetwood, a deed in fee simple, with warranty, conveying to him, in terms, the tract of land aforesaid, and demanded of him the purchase money which he had agreed to pay for the same. The defendant, Fleetwood, refused to accept the deed or to pay the purchase money, upon the ground only that by the terms of the will of Jacob Wool, the plaintiffs could not convey a good and indefeasible title to the land. It was agreed between the parties that if, under and by virtue of the will, the plaintiffs had the legal right to convey the land to the defendant, and did, by the deed tendered, convey a good and indefeasible estate in fee to him, then judgment should be entered requiring him to comply with his said contract, by accepting the said deed, and by paying over the money which he had contracted to pay, but if the court should be of the opinion that the plaintiffs are unable to convey, by virtue of the will and deed, a good and indefeasible fee-simple title to the land in controversy, then the defendant should go without day. Upon consideration of the facts agreed, the court held that the plaintiffs had the legal right to convey and make a good and indefeasible title to the land described in the contract, and thereupon adjudged that, upon the plaintiffs tendering to the defendant a deed In due form, with a covenant of warranty, for the land, and with proper probate, they recover of the defendant the amount of the purchase price ($1,200) and the costs. The defendant excepted to this judgment, and appealed.

Charles Whedbee, for appellant.

Pruden & Pruden, for appellees.

WALKER, J. (after stating the facts). We do not see why the plaintiffs are not able, by the deed which they have tendered, to convey a good and indefeasible title to the defendant. The latter contends, as we understand, that the deed will not pass to him such a title, for three reasons: (1) Because by the fifth item of the will the widow and the heirs are forbidden to sell or dispose of any of the real estate during the life of the former; (2) because by the terms of the sixth item no estate vested in the plaintiffs Leonard and Elizabeth Wool, either by descent or purchase, until the expiration of five years after the devisor's death; and (3) because by the seventh item the said Leonard and Elizabeth did not acquire the fee, but only a life estate, the word "lawful, " which qualifies the word "heirs, " having the effect, in law, of preventing the latter word from operating as one of limitation, and of restricting the meaning of the words "lawful heirs" to that of "children, " who will take, not by descent from their parents, but by purchase directly from the devisor, and therefore that the rule in Shelley's Case and the act of 1784 (Code, § 1325) converting fees tail into fees simple do not apply. It is true that the testator places a positive restraint upon the alienation of the real property in the fifth item of his will, and the plaintiffs, by reason of that restriction, cannot convey a good title to the defendant if that provision of the will is valid. We en-tertain no doubt upon the question thus presented, as it is well settled that such a restraint upon the donee's right to dispose of the property is void, as being contrary to a wise principle of the law, which is based upon a sound public policy. As a general rule, it may be conceded that every person may do with his own as he pleases, but this rule is not of universal application, but is subject to some exceptions made necessary by the interest of the public that the titles to land should be as little fettered, and the power of alienation as little subject to restraint, as possible and consistent with a reasonable enjoyment of the right of property and all of its incidents; it being, generally speaking, against public policy to allow restraints to be put upon transfers which that public policy does not forbid. Gray, Restraint on Alienation (2d Ed.) § 3. Hence it has ever been the inclination of the courts, in their decisions, to remove old restraints, and not only to discountenance but to disallow new ones, and to put all obstacles out of the way of a fair and reasonable exercise of this power of alienation, which is one of the most important and valuable incidents of the right of property. While limited restraints of a certain kind have been recognized as valid, when the fee is conveyed, it must be conceded at this time to be well settled that a restraint upon the right of alienation, even for a limited period of time, is, as to such an estate, invalid; it being inconsistent with the nature of the grant, or of the estate which is created by the latter. Gray, supra, 41. The elementary law writers (2 Blk. 157) lay down the rule generally that a condition of nonalienation annexed to a conveyance inter vivos or to a devise of a fee is void, because it is inconsistent with the full and free enjoyment which the ownership of such an estate implies. Twitty v. Camp, 62 N. C. 61. "The doctrine, " says Ruffln, C. J., speaking for the court, "rests upon these considerations: That a gift of the legal property in a thing includes the jus dispouendi, and that a...