Ashurst v. Ashurst

de GEAFFENRIED, J.

The reporter will set out, in his statement of the facts of this case, items, 1, 3, and 8 of the will, which, in this case, we are called upon to construe.

1. Section 1030 of the Code of 1896, which controls the provisions of this will, is as follows: “Lands may be conveyed to the wife and children, or children only, severally, successively and jointly; and to the heirs of tlie body of tbe survivor, if they come of age, and in default thereof, over; but conveyances to other than the wife and children or children only, cannot extend beyond three lives in being at the date of the conveyance, and ten years thereafter.”

Under the above will Mr. Ashurst did not attempt to devise the lands described in item 3 of the will to his three sons “severally, successively and jointly, and to the heirs of the body of the survivor if they came of age, and in default thereof, over.” He undertook to devise to his three sons, and, under certain conditions, to their children, a term of 25 years — a chattel real— in the said lands. While he declares, at the end of item 8 of the will, that it Avas his purpose to vest in each of his six children an undivided one-sixth interest in remainder in the said lands, subject to the previous life estates limited in item 3 of the will, the truth is that he had not in item 3 created a previous life estate in said lands. To so construe the provisions of item 3 of the Avill Avould be to juggle with mere words. Item 3 simply and plainly creates a term of 25 years in said lands and declares who shall enjoy that term.

The above is not only true, but the purpose of the testator in creating the term of 25 years is not left in doubt. The purpose he himself in item 1 plainly declares was to secure to his children a decent subsistence against the accidents and misfortunes of life and to postpone, for a considerable period, a final division or sale of the lands described in item 3 of the Avill. The open purpose of the testator in items 3 and 8 of his Avill was to so fetter the lands described in said terms as to render their sale in any Avay, by any person or by any court, impossible until a period of 25 years had elapsed after his death.- “The rule against perpetuities is a restraint imposed for reasons of public policy by the law upon an owner’s power to dispose of property. Every deed and will is therefore to be construed as though no rule against perpetuities existed. The intention-of the owner having been thus determined, the rule is to be applied.” — 30 Cyc. p. 1498. So construing the will in question, it seems to us that the provisions of items 3 and 8 are offensive to our statute against perpetuities and are therefore void. If Mr. Ashurst had the power to so fetter the lands, to which we have above referred, for a period of 25 years, he had the power to prevent their sale for a much longer period, and to so hold would be, in effect, to strike the above-quoted statute against perpetuities from our Code. The Legislature has seen fit to declare that the measure of the period during which the right to alienate lands may be suspended shall be determined by human lives, and the provisions of this will are clearly offensive to the above-quoted provision of our Code.

2. We recognize that some effect, if possible, should be given to every will, deed, or, as to that matter, to every written instrument. We have, however, no authority to make a will for Mr. Ashurst nor to say what he would have done with his property if he had not, when he made his will, labored under the erroneous impression that he had the power to postpone a sale of his lands for the definite period of 25 years after his death. This term of years was created by Mr. Ashurst as a part of his scheme to prevent the alienation of the lands for a period not permissible under the law, and it “happens that whenever a testator, through temerity or ignorance, violates' the plain mandate of the statute, as in this case, and creates a trust by which the absolute power of alienation is sought to be suspended for a term of years, he must pay the penalty of his rashness or folly in the destruction of his cherished design.” — In re Walkerly, 108 Cal. 627, 41 Pac. 772, 49 Am. St. Rep. 97; Lyons, et al. v. Bradley, 168 Ala. 505, 53 South. 244.

It seems to us that the vital points at issue in this case were fully considered and determined by this court in the case of Lyons, et al. v. Bradley, supra. In that case, as in this, a plain effort was made by the testator to evade our statute against perpetuities, and in this case, as in that, the result must be the same. Estates and interests created in lands, whether directly or through the medium of a trustee, which offend the above-quoted provision of our Code, are void. — Lyons, et al. v. Bradley, supra.

3. The above-quoted section 1030 of the Code provides, among other things, that lands may be conveyed so a§ to extend the estate conveyed for a period of three lives in being and ten years thereafter. Section 3410 of the Code of 1907 also provides that “no trust of estate for the purpose of accumulation only can have any force or effect for a longer term than ten years.” This period of “ten years” fixed in the above sections of the Code may evidence a legislative license to testators and grantors to so fetter the estates devised or granted by them as to prevent their alienation for a -fixed period of ten years, but certainly not longer. This question is not before us, and it is therefore unnecessary for us to determine it.

The decree of the court below is affirmed.

Affirmed.

Dowdell, C. J., and Anderson and Mayfield, JJ., concur.