Crawford v. Solomon

Ethridge, J., delivered the opinion of the court. Nathan B. Crawford, deceased, made a last will and testament in which he devised certain real estate to his wife, appellant Sudie C. Crawford, and to his two daughters, Josie Nace Crawford and Annie B. Crawford, together with three thousand dollars in money to each of these three. The will then provided that out of the balance of his estate all debts be paid, and, after placing monuments at certain graves, the balance of the property, real and personal, to be divided, among nine other children, naming them. The wall then appointed his son, John A. Crawford, and two sons-in-law, J. E. Logan and J. W. Logan, executors of the will without bond, with power to sell, lease or rent any and all of the testator’s lands as in their judgment might be best; also made John A. Crawford guardian, without bond, of testator’s two daughters, Josie Nace Crawford and Annie B. Crawford, until they reached twenty-one years of age. The will then provided: “It is my will that my wife, S'udie C. Crawford, and my two daughters, Annie B. Crawford and Josie Nace Crawford, shall each be entitled to a one-third interest in (he rents of the real estate herein conveyed to them, during the life of their mother, Sudie C. Crawford, and I will that said real estate shall not be sold during her life, and at her death her interest in the same shall go to Annie B. Crawford and Josie Nace Crawford, and at their death to their children, provided they have children, and if not, at the death of either Annie B. Crawford, and Josie Nace Crawford, the surviving one sister shall have the property.” The bill filed in this case is filed by Mrs. Sudie C. Crawford, Mrs. Josie Nace Solomon, Mrs. Annie B. Bife, John [799] A. Crawford, J. E. Logan, and J. W. Logan, and malíes the minor children of Mrs. Josie Nace Solomon and Mrs. Annie B. Rife defendants, all of whom were minors of tender years. The bill alleges that the daughters named in the will have each married and have children (the same children being made defendants), and set forth that Mrs. Sudie C. Crawford is a resident of New Orleans, La., and sets forth that the property devised to Sudie C. Crawford and the said daughters, located in the town of Houston, Miss., is not worth anything as an investment to them; that the taxes, repairs, and other expenses incident thereto amount 'nearly to the whole of the rents derived therefrom, and that the property, although worth twenty-five thousand dollars is practically worthless to the complainants Sudie C. Crawford, Mrs. Josie Nace Solomon, and Mrs. Annie B. Rife; that said property is deteriorating in value, and it is to the best interest of all parties concerned to have said property sold and the proceeds invested in more profitable property. The bill then alleges that the will makes a devise of land to a succession of donees tlien living exceeding two, and that by the provisions of said will the executors, John A. Crawford, J. E. Logan, and J. W. Logan, were authorized to sell any of the real estate belonging to the estate of said Nathan B. Crawford, which provisions complainants would show was not limited to any special real estate. The bill prays that the minor children of the daughters named in the will be made defendants, and that on final hearing the court would construe the will and determine the validity of the clause providing for the succession of donees under said will, and declare the said clause in said will to be against and contrary to the statute on perpetuities, and to declare Mrs. Sudie C. Crawford, Josie Nace Crawford Solomon, and Annie B. Crawford Rife to hold said title to said lands in fee simple, and they be authorized to sell and convey the same by deed, and, if mistaken in this relief, that the court will so construe the said will as [800] to authorize the executors to sell the real estate of said Nathan B. Crawford and to convey the said property, and, if mistaken in this, then the court to appoint a guardian for Edward Solomon, William Solomon, and Crawford Solomon, the only children of Mrs. Josie Nace Crawford Solomon, and Josie Bife and Annie Bife, the only children of Annie B. Crawford Bife, and that such guardian, under sections 2419 and 2420, Code of 1906, be authorized, together with the remaindermen and life tenants, to sell said real estate and invest the same in more productive real estate, the title to be taken and held under the same conditions, and provisions as provided for in the will, and that the court will construe the will and determine whether a' guardian can legally sell the land for reinvestment of proceeds. The court below found that the property involved in said will was worth about twenty-five thousand dollars, that it was in bad repair, and that the taxes and expense of upkeep of the property is about equal to the income derived from the same, and that it would be, as a matter of fact, to the best interest of all the parties to have the property sold and the proceeds reinvested in more productive property, to be held under the same limitations as the estate that was devised in the will; that the will did not violate the statute against perpetuities, and that the court had no jurisdiction to order the sale of the property left to Mrs. Sudie C. Crawford with cross-remainder to her two daughters, said children now in esse being minors, with the possibility of other children being born in the future, and, it- further appearing that the court would be without authority to order the sale of such property on the petition of the guardian if one was appointed, it dismissed the bill on which this appeal was prosecuted. Section 159 of the state Constitution confers full jurisdiction on the chancery court of minor’s business, and we see no reason why the chancery court would not have jurisdiction in a proper case to order the,sale of property of minors held in remainder, 14 R. C. L., p. 270, section [801] 43; Goodman v. Winter, 64 Ala. 410, 38 Am. Rep. 13; McCreary v. Billing, 176 Ala. 314, 58 So. 311, Ann. Cas. 1915A, 561; section 2419, Code of 1906; Hem. Code, section 1980. We think, however, that the chancery court was without power to order the sale under the present will, because the will specifically provides: “I will that said real estate shall not be sold during her life,” referring to the life of Sude C. Crawford, the wife of the testator. It is urged by the appellant that this provision against alienation is void, but we think that it is not void, and that under the “two donee statute” (section 2765, Code of 1906; Hemingway’s Code, section 2269) it is competent for a person making a will to limit the right of alienation during the period therein provided for. This seems to have been expressly held in Leigh v. Harrison, 69 Miss. 923, 11 So. 604; 18 L. R. A. 49. At page 935 of the Mississippi Report of this case, at page 606 of 11 So. (18 L. R. A. 49), the court said: “The argument in favor of the validity of these limitations impresses us as both sound and conservative. Our statute against perpetuities would seem to express the whole legislative will oñ that subject, and to fix the limit which may not be exceeded, but within which restraints against alienation may lawfully be imposed — at least upon equitable estates for life — which, whatever may be the rule as to legal estates, either in fee or for life, would seem not to be subject to the objection that the limitation is not in derogation of the estate. We can perceive no reason why courts of equity, whose principles and administration give rise to- and protect these estates, should not so mold and preserve the trusts declared, as to protect and give effect to trusts for improvident and spendthrift persons, who are objects of solicitude to their parents and friends. It is not more generally true that married women need the intervention of equity to protect their estates from the avarice and improvidence of husbands, than that the unfortunate class called spendthrifts require like restraint [802] from the consequences of their own vices and extravagance.” The testator had in mind a provision for his wife during her life which she could not alienate. It was his evident purpose to insure her a home during her lifetime at any and all times, and we do not think the statutes Or public policy forbid placing a limitation upon alienation during the life of a particular person. It is true the testator could not foresee the consequences or situation that would develop. He no doubt weighed these considerations against other considerations of which he had to judge in mailing the provisions for his wife during her lifetime. In view of the construction we have placed upon this provision of the will, under which property cannot be sold during the life of the appellant Mrs. Sudie Crawford, it will not be necessary to now decide whether the will would vest any estate in the children of the daughters as remaindermen or whether they would take the fee at the death of their mother. We will reserve decision upon this until the contingency arises making necessary decision on that point. Liberty Bank v. Wilson, 116 Miss. 377, 77 So. 145. This court held, in Reddoch v. Williams, 129 Miss. 706, 92 So. 831, that even where a will violated the statute, it was good up to the point where the statute is violated. Affirmed.