Sweinhart v. Plant Investment Co.

MELVIN, J. Plaintiff, here appealing from an adverse judgment, sued unsuccessfully to partition certain real property, asserting that she is the owner of an undivided eighth of the realty involved, claiming as the devisee of her deceased husband, Roger Plant, Jr., who survived his father, Roger Plant, Sr., by more than ten years. The younger Roger Plant died childless, and by his will all of his property went to his widow, who is the plaintiff here. She has married since his death. The sole question involved is the proper construction of the decree of distribution in the estate of Roger Plant, Sr., by which the whole of the real property is distributed as follows: “To said William Plant, Susan Plant Tweedy, Roger Plant, Henry Plant, Phoebe Plant, David Walter Plant, *127 George Washington Plant, Richmond Plant and Charles Plant, said children of deceased, all of whom are over 21 years old, the said real property is hereby distributed share and share alike, but in trust nevertheless, they to use the net rents and profits during their lives, or until such a time after ten years from the date of the death of said Roger Plant as that all of his said children, or in case any of them shall be dead, then all said children then surviving and the heirs of the body of said deceased children, shall mutually agree in writing to sell said real property and divide the proceeds, when the same shall be sold and the proceeds divided equally among said children and in the event any of said children are dead, the heirs of the body of said deceased child or children shall succeed to the interest of their parent in equal proportions, and if they shall not agree in writing to sell said realty as aforesaid, then on the death of all of said children, said real property or the proceeds thereof shall be divided among the heirs of the body of said children, each child’s children to be entitled to share equally in the portions of its parent, and if any of said children shall die prior to distribution without issue, then the portion of such deceased child shall be equally divided among the surviving children and the heirs of the body of any deceased child, each deceased child’s heirs to share equally in their deceased parent’s portion of said child dying without issue.” Plaintiff’s contention is that the distributees under this decree took an estate in fee simple absolute either at the date of the entry of the decree or ten years later and that the trust provisions are repugnant to this estate. In this behalf her counsel cites many authorities to the effect that where an absolute property in the estate is devised, or where an unrestrained power of sale is given, a limitation over to another is void as inconsistent with the first estate. Unquestionably that is the rule, but an examination of the trust clause of the decree here involved reveals the fact that there is no unrestrained power of disposition conferred. ' The validity of the decree establishing the trust is not open to attack in this suit. (Goldtree v. Allison, 119 Cal. 344, [51 Pac. 561].) By the terms of that part of the decree none of the property could be sold without the written agreement of the surviving children of the testator and heirs of the body of those original distributees who had died. Before *128 such division by agreement the interest of each distributee would, upon his death, pass to the heirs of his body, or in default of any to the survivors of the trustees. Such limitation upon the power of alienation may not be questioned by plaintiff, and under the terms of the trust, as there never was any agreement to dispose of the property during her husband’s life, she never acquired any interest in it. A very similar trust has been upheld by the supreme court of Missouri. (Dougal v. Fryer, 3 Mo. 40, [22 Am. Dec. 458].) The judgment is affirmed. Wilbur, J., and Victor E. Shaw, J., pro tern., concurred