Laval v. Staffel

Citations

• 64 Tex. 370

Syllabus

<p>1. Will — Construction — Restraint on alienation — Executory devise — Limitation.— A will bequeathed to the son of deceased certain real estate, but with the restriction that up to the age of twenty-five years he should only have the right to receive and dispose of the revenue thereof, without the right to mortgage, incumber or sell the property. In case the son died before reaching the age of twenty-five years, the property should pass in full right and free from all charges to the daughter of deceased. The son mortgaged the property, and died before arriving at the age of twenty-five years. Held:</p> <p>(1) That the intention of the testator is the first and great object of inquiry in the construction of a will, and must govern, provided it is not inconsistent with the rules of law.</p> <p>(2) That it is, perhaps, settled law, that general restraints upon alienation are void, and the devisee in fee takes the estate free of the restriction. Not so as to partial restraint, such as a prohibition of sale to particular persons, or before arriving at a named age. As to the validity of such restrictions the authorities differ. (See authorities cited in the opinion.) It is not necessary to canvass the decisions upon this subject for the purposes of the present case.</p> <p>(3) Even if the restriction on alienation were stricken out, the result would be that the son would take an estate in fee-simple, subject to be defeated, and to pass to the daughter in case he died before arriving at the age of twenty-five years.</p> <p>(4) That the testratrix was authorized to make such a disposition of the property; it is the most common form of executory devise, and from time immemorial has been sustained by the courts of England and America, when there was no prohibiting statute on the subject. It is well recognized in this state (see cases cited in the opinion), that a devise like the present, limiting a fee after a fee, is legal when the contingency upon which the first estate