Opinion
15510.
JULY 2, 1946.
Construction of will, etc. Before Judge Crow. Dougherty Superior Court. March 27, 1946.
James V. Davis, for plaintiffs in error. Leonard Farkas and Walter H. Burt, contra.
1. "Conditions repugnant to the estate granted or to do impossible or illegal acts, or which in themselves are contrary to the policy of the law, are void." Code, § 85-903.
2. Under the Code section just quoted, a devise in fee with an inhibition against alienation is repugnant to the fee, and is therefore void. Freeman v. Phillips, 113 Ga. 589 ( 38 S.E. 943); Crumpler v. Barfield, 114 Ga. 570 ( 40 S.E. 808); Stamey v. McGinnis, 145 Ga. 226, 227 (2) ( 88 S.E. 935).
( a) The same rule obtains, that is, an inhibition to sell a life estate is void, where such inhibition is not accompanied by a limitation over of the life estate to another, with a provision expressly providing for a forfeiture of the life estate to take effect upon such inhibited alienation. 41 Am. Jur. 119, § 81.
( b) The general rule is different, however, and the inhibition against selling the life estate is valid where the creation of the life estate is accompanied by an estate over in remainder to another with a provision for a forfeiture of the life estate in favor of the remainderman, to take effect upon such prohibited attempted alienation. 123 A.L.R. 1475; 41 Am.Jur. 117, § 78.
( c) The rule just stated in subsection ( b) has been extended, by a divided court in Trammell v. Johnston, 54 Ga. 340, to a case where, even though there was no provision for a forfeiture of the life estate in favor of the remaindermen, an attempt was made to violate the inhibition against a sale thereof; but the distinction appears to be that in the Trammell case the testator sought, not only to provide a life estate in the plantation in favor of his wife, but a home thereon for his three children for and during the period of her lifetime; and it was largely on account of that provision of the will that the majority opinion upheld the provision against alienation, and permitted the attack upon the conveyance by the life tenant. See 160 A.L.R. 639 for a general discussion of the subject, in which note this Georgia case is discussed.
3. If a valid limitation imposed against alienation is interwoven with, so as to constitute a part of, the grant itself, the grant or lease will be treated as a defeasible estate; and upon such inhibition being violated, the life estate ipso facto terminates. Atlanta Consolidated St. Ry. Co. v. Jackson, 108 Ga. 635 ( 34 S.E. 184); 51 A.L.R. 1473.
( a) If however, as here, the inhibition is set up by way of an independent condition subsequent, so as not to constitute part of the grant itself, the estate does not ipso facto terminate upon the happening of the thing inhibited, but continues unless the parties interested in a forfeiture should assert their right thereto and thus terminate the interest of the life tenant. Norris v. Milner, 20 Ga. 563 (2); Edmondson v. Leach, 56 Ga. 461; Peacock c. Naval Stores Co. v. Brooks Lumber Co., 96 Ga. 542 ( 23 S.E. 835); Moss v. Chappell, 126 Ga. 196 (8) ( 54 S.E. 968, 11 L.R.A. (N.S.) 398); Wadley Lumber Co. v. Lott, 130 Ga. 135 (1-d) ( 60 S.E. 836).
( b) No one other than the devisor, or grantor, holding the reversionary interest, or a privy in estate under him, will be heard to invoke a forfeiture on account of a breach of a condition subsequent. Richmond v. Cotton Oil Co. v. Castellaw, 134 Ga. 472 (2) ( 67 S.E. 1126).
( c) The right to a forfeiture may be expressly or impliedly waived by those entitled to claim it. City of Barnesville v. Stafford, 161 Ga. 588 (4) ( 131 S.E. 487, 43 A.L.R. 1045); Moss v. Chappell, 126 Ga. 196 (supra); 19 Am.Jur. 552, § 91.
4. In this case the inhibition against a sale of a life estate being clearly a condition subsequent, and there being no effort on the part of any one interested to claim a forfeiture by reason of the execution of the trust deed by the life tenant, but on the contrary, as is conceded, each and every party at interest having by his answer to this proceeding expressly waived and renounced any and all right to a forfeiture, it necessarily follows that the legacy to the life tenant here involved remains valid, and the trust executed by the life tenant with respect to the same is likewise valid and binding upon all parties at interest.
Judgment affirmed. All the Justices concur.
No. 15510. JULY 2, 1946.
STATEMENT OF FACTS BY JENKINS, PRESIDING JUSTICE.
This is a bill for direction by the trustees named under the will of Sam Farkas, by which it is sought to construe the validity of Item Eighteen of the will of Sam Farkas, and the validity of a trust deed executed by Leonard Farkas, one of the beneficiaries as life tenant under said will.
Under the terms of the will, the entire estate was bequeathed to certain named life tenants including Leonard Farkas, to be held in trust by certain named trustees including Leonard Farkas, said trust to continue during the lifetime of said named life beneficiaries, and until the youngest child of any one of them should have attained the age of twenty-one years, after which the trust would cease and the property would then go in fee simple to the direct descendants of the testator, per stirpes. After making such disposition of the estate, and after providing that it be held in trust as above set forth, Item Eighteen of the will declares: "If any of the heirs above named, either directly or indirectly, shall attempt to defeat this will by contesting the validity of the same, or shall by any means attempt to defeat the manner and form that I have expressed my wishes that it shall be held and controlled, or shall mortgage, sell, or convey, or in any way divest, or attempt to divest, themselves of the beneficial interest which they are entitled to under this instrument, then the party guilty of the prohibited act forfeits his right in the estate, and his interest shall terminate, and cease, and the same shall revert to the estate, being divided among the remaining heirs, according to the trust herein declared."
After the death of the testator, Leonard Farkas, one of the beneficiaries of the life estate, executed an instrument whereby he conveyed in trust for a period of ten years, or until the death of Mack Farkas, his brother the trustee, all his right, title, and interest to the profits and income from the estate of Sam Farkas; to be used by said trustee, his brother, to aid any of their brothers and sisters in educating their children, or in sickness, or financial reverses, or extraordinary needs, leaving the disposition of such income entirely in the discretion of his said brother, Mack Farkas as trustee, providing only that no portion of such income should go to Leonard Farkas, the creator of the trust.
The direction prayed for is the construction and validity of said Item Eighteen of the will, as related to the construction and validity of the trust agreement executed by Leonard Farkas. The trustees under the will of Sam Farkas ask that direction be given as to whether the execution of such trust deed by Leonard Farkas operated to extinguish his interest in the estate, or whether the trust deed was valid and should receive the sanction of the court.
In answer to the petition for direction, all the interested parties appeared and by their answer waived and relinquished whatever right they might have to enter and declare the interest of Leonard Farkas forfeited.
The court held: "(1) The provision of the will of Sam Farkas which is contained in Item Eighteen of said will and which reads as follows: `or shall mortgage, sell or convey, or in any way divest or attempt to divest themselves of the beneficial interest which they are entitled to under this instrument, then the party guilty of the prohibited act, forfeits his rights in the estate,' is void in that it is an attempt to restrain alienation and repugnant to the estate devised by the will. (2) That the language in Item Eighteen of the will of Sam Farkas which reads as follows: `then the party guilty of the prohibited act forfeits his right in the estate and his interest shall terminate, and cease, and the same shall revert to the estate, being divided among the remaining heirs according to the trust herein declared.' Whether said provision be construed as a condition repugnant to the estate conveyed or as creating a defeasible fee, said estate devised to Leonard Farkas continues to exist subject to the trust agreement, because, if said provision be construed as repugnant to the estate devised, it would be void; and if construed to be a condition subsequent, the estate remained in the devisee until there has been an election to declare said estate forfeited and entry by those claiming the right to enter. (3) The trust agreement created by Leonard Farkas and attached to the petition as Exhibit `A' is declared to be valid, and the trustee named in said trust agreement, to wit, Mack Farkas, is entitled to receive the income from the estate of Leonard Farkas as provided by said trust agreement. (4) The trustee named in said trust agreement is authorized to handle and dispose of said income in the manner and way provided by said trust agreement. (5) The trustees of the estate of Sam Farkas are authorized to pay the income from the estate of Sam Farkas, that would be payable to Leonard Farkas under the will of Sam Farkas, to Mack Farkas, trustee, under said trust agreement, and are hereby directed to pay said income to Mack Farkas, trustee. (6) Said Mack Farkas, trustee, has authority under said trust agreement to disburse the income as provided in said trust agreement."