19 Marketability 19 Marketability
Contact: Jeremy Sheff
As we saw in our discussion of estates and future interests, the common law gave property owners a fairly diverse and subtle array of tools to effectuate their intent regarding the use and disposition of their property. But this level of control raises serious potential for conflicts between the plans and wishes of the property owners of yesterday and the needs and desires of (actual and aspiring) property owners of today.
Consider that about 80 years before the Empire State Building was constructed, the land on which it now stands was a farm situated a mile beyond the northern edge of the urban quarters of New York City. See JAMES REMINGTON MCCARTHY & JOHN RUTHERFORD, PEACOCK ALLEY: THE ROMANCE OF THE WALDORF-ASTORIA 4-10 (1931). What if the first private owner of that farm—John Thompson, who purchased it in 1799 out of the common lands held by the city government for $2,400 (id.)—had executed a conveyance of the land that included a future interest in “the eldest of my great-great-great-great-great grandchildren”? What if he had devised the land to his eldest child “on condition that the family farm may never be sold”? Or “on condition that the land may be used for farming purposes only”? Could the Empire State Building ever have been built? If not, is that a result we would be happy with?
The common law recognized that some property owners might try to dictate the disposition of property much farther into the future than could be justified by any legitimate interest or expertise they might have. As one commentator put it, writing in 1967: “[I]t would have been utterly impossible for any testator dying in 1866 to foresee the events that have taken place in the succeeding century, and ... any prediction as to what may occur in the century following 1966 would be even more unlikely to conform to reality.” W. BARTON LEACH, PROPERTY LAW INDICTED! 71 (1967). As years pass, new generations undertake stewardship of resources, and the economic, social, and cultural demands on those resources change with the times. Allowing long-dead property owners to dictate the disposition of those resources to the fourth, fifth, or sixth generation after they’re gone significantly limits the ability of the possessors of today to flexibly direct resources to uses appropriate to the age.
The common law developed various doctrines designed to balance respect for property owners’ wishes to provide for their families as they see fit with vigilance against the dangers of dead-hand control. One powerful tool for striking this balance is the infamous Rule Against Perpetuities. We will not be studying the Rule at any length here, but its classic formulation—that an interest in property is void unless it necessarily will vest within 21 years of the end of a life in being at the time the interest is created—essentially operates to limit a property owner’s control to one generation beyond the end of his own life. For example, a grant to John Thompson’s great-great-great-great-great grandchild would be clearly invalid under the Rule Against Perpetuitites, but a grant by John Thompson to his living daughter’s yet-unborn child would almost certainly be valid.1
Beyond limiting the duration of property owners’ control, the common law developed additional rules regarding the types of restrictions grantors could place on otherwise valid interests in property that they conveyed. The following cases provide some examples. As you read them, consider how the principles they rely on relate to the aforementioned balance between respecting property owners’ wishes and guarding against dead-hand control.
Footnote 1: We say “almost” only because if Thompson for some reason made the future interest in his unborn grandchild subject to the condition precedent of that grandchild attaining an age of more than 21 years, the interest would be void under the common-law Rule Against Perpetuities.
19.1 Ford v. Allen 19.1 Ford v. Allen
Court of Civil Appeals of Texas, Austin.
No. 12255.
Clyde M. FORD, Appellant, v. Ronald Albright ALLEN et al., Appellees.
July 23, 1975.
Rehearing Denied Aug. 13, 1975.
Stephen D. Ramsey, Coffee, Goldston & Bradshaw, Austin, for appellant.
William S. Lott, Georgetown, for appellees.
O’QUINN, Justice.
Clyde M. Ford, individually and as administrator with will annexed of the estates of his deceased parents, brought this suit in 1973, naming as defendants the three grandsons of his mother, by an earlier marriage, and sought judicial construction of certain portions of the wills which plaintiff asserted are ambiguous.
The three defendants, Ronald Albright Allen, James Donald Allen, and Claude William Allen, all non-residents of Texas, answered and defended under two principal contentions. Defendants contended that the wills of their grandmother and her husband were not ambiguous, and that their grandmother, who survived her husband, after taking under his will died without providing a contingent devisee in event her husband, the sole devisee, predeceased her. Since there was no taker under her will, defendants contended, the entire estate passed under the laws of descent and distribution of Texas, entitling them to share in the property.
Trial was before the court without intervention of a jury, and the court entered judgment sustaining contentions of defendants that the wills were not ambiguous and that the surviving wife died intestate, after taking all property under the will of her husband, and that her estate “passed and descended in fee simple to her heirs at law under the laws of descent and distribution of Texas.”
We will affirm the judgment of the trial court.
The trial court filed findings of facts and conclusions of law in addition to the findings and conclusions contained in the judgment. A statement of facts has been brought forward. When specific findings and conclusions are filed and a statement of facts is before the appellate court, the findings will be sustained if there is any evidence to support them. The appellate court will review the legal conclusions drawn from the facts found to determine their correctness. 4 McDonald: Texas Civil Practice, sec. 16.10(b), p. 29 (1971).
Chester Melvin Ford and Lola Mae Ford, the deceased persons whose wills are under review, were married in August of 1943, and Clyde M. Ford, appellant here and plaintiff below, was the only child born to their marriage. Mr. Ford had been married twice prior to his marriage to Mrs. Ford, but had no children from those marriages. Mrs. Ford also had been married earlier, and from that marriage she had a son, Otis Martin Allen, who died in April of 1958, leaving three sons, resulting from two marriages. The three surviving sons were defendants below and are appellees in this appeal.
The undisputed evidence supports the finding of the trial court that Chester Melvin Ford and his wife, Lola Mae Ford, each executed a holographic will on the same day in April of 1960, and each of them devised “all my property to my beloved” spouse, followed by certain additional identical language which is under dispute. Mr. Ford died November 25, 1972, and less than a month later Mrs. Ford died, on December 18, 1972.
It also appears undisputed that, as the court found, Mr. Ford at the time of his death owned approximately 450 acres of land in Bell County, as his separate property, and owned community property with his surviving wife which consisted of cattle, money, and other personal property.
The language of the wills giving rise to this suit, as contained in the will of Mr. Ford, follows:
“After the Payments of my Just Debts I devise all my property to my beloved wife Lola Mae Ford to do with as she See fit except that she is not to Sell, Morage [sic], or Lease any of our real Estate for more than Three (3) years without the written agreement of our son Clyde Melvin Ford.”
Appellant contends that the language is ambiguous and requires construction, and that under a proper construction the language “created a life estate in real property in Lola Mae Ford with remainder to Clyde M. Ford in fee simple, or alternatively created a testamentary trust expressly or by implication for the use and benefit of Clyde M. Ford.”
The trial court correctly determined that the language of the wills, identical in each instrument, is clear and unambiguous, and that Mr. Ford devised “fee simple title to all the property, real and personal, owned by [him] at the time of his death to his surviving wife . . . ” and that if Mr. Ford had been living at the time of his wife’s death, Mrs. Ford’s will would have devised all the property to Mr. Ford.
The trial court further concluded properly that (1) “ . . . neither of such wills create [sic] a life estate to the surviving spouse with remainder to Clyde M. Ford.” and (2) “ . . . such wills do not create testamentary trusts, expressly or by implication, for the use and benefit of Clyde M. Ford.”
The trial court concluded (1) that the language in the wills, providing that the devisee was not to sell, mortgage, or lease any of the realty for three years without written agreement of Clyde M. Ford, was “void as being a restraint on alienation and repugnant to the devise in fee;” and (2) the language of the wills, under provisions of Article 1291, Vernon’s Ann.Tex.Civ.8t., devised fee simple title to all property, since the wills contained no “language clearly showing a lesser estate than the fee was intended to be devised.” We approve these conclusions as correct applications of the law to the language of the wills.
Appellant contends that by extrinsic evidence it may be demonstrated that the true intent of Mr. and Mrs. Ford was to devise their real property to their only son, Clyde M. Ford, and that because of the ambiguity of the language in the wills, such evidence should have been considered. The trial court permitted the introduction of extrinsic evidence offered for the purpose of showing an intent different from results reached by the trial court.
In brief, the evidence was that the real estate was the separate property of Mr. Ford, and that the three grandsons of Mrs. Ford were not kin to Mr. Ford; that Clyde M. Ford had helped to work the lands contained in the 450 acres, whereas the defendants had never worked any part of the land; that the grandsons were not close to their grandmother or to Mr. Ford, and none of them attended either the funeral of Mr. Ford or their grandmother; that Mrs. Ford set up a savings account for the grandsons and this alone was intended to take care of them; that Clyde M. Ford was close to his parents and was the natural object of the deceaseds’ bounty, and the defendants were not; that during their life both Mr. and Mrs. Ford indicated orally that they wanted Clyde to have the land.
It is the established rule that an ambiguity arises only when the meaning which emanates from language used in the will admits of more than one interpretation. We find no ambiguity in the language of the Ford wills which in each writing clearly and plainly devises all property to the other spouse to do with as the other may see fit. The attempt, in language that follows, to place a restraint on alienation could not change or nullify the devise. It is not a function of the courts, nor is it a role the courts may assume, to revise or to make over the writing in a will to achieve results different from results which flow from the plain language used by the maker of the will. The courts may not speculate, from extrinsic evidence or otherwise, that some other result may have been intended. Huffman v. Huffman, 161 Tex. 267, 339 S.W.2d 885 (1960). These principles were examined in greater detail and additional authorities were reviewed in the recent opinion of this Court in Price v. Austin National Bank, 522 S.W.2d 725, 781 (Tex.Civ.App. Austin 1975, writ ref., n.r.e.).
Appellant presents twenty-seven points of error on appeal. Under the holdings we have announced, we have disposed of appellant’s principal contentions, and those points are overruled. Appellant also urges that the trial court erred in refusing to make a determination of heirship, and under these points insists that if Mrs. Ford died intestate, appellant is entitled to one-half of her estate and defendants are entitled only to the remaining one-half. The trial court correctly declined to decide the matter of heirship since administration of the estates is still pending in Bell County, where the County Court has acquired jurisdiction to determine heirs of the deceased. Sec. 48, Texas Probate Code (as amended Acts 1971, 62nd Leg., p. 971, ch. 173); 17 Texas Practice, Woodward and Smith: Probate and Decedents’ Estates, sec. 7, p. 15; sec. 202, p. 170 (1971), and cases cited.
All of appellant’s points of error have been carefully examined and considered, and all points are overruled.
The trial court in its judgment denied the request of Clyde M. Ford that attorney’s fees, court costs, and other expenses incurred by this suit to construe the wills be paid out of the two estates as costs and expenses of administration, and ordered all such costs and expenses to be paid by Ford individually.
The judgment of the trial court is in all things affirmed. It is ordered that costs of this appeal be taxed against appellant, Clyde M. Ford, individually.
Affirmed.
19.2 Ford v. Allen: Notes + Questions 19.2 Ford v. Allen: Notes + Questions
Notes and Questions
1. Do you think Clyde is right that his parents wanted him to have the farm after both of them died? Or at least that they would rather Clyde have it than Lola Mae’s estranged grandchildren from another marriage? If so, why do you think both Chester and Lola Mae executed wills without any explicit devise to Clyde? If not, why do you think the Fords’ wills included a restriction on alienating the farm without Clyde’s consent? (Incidentally, what is a “holographic” will?)
2. Why is the court unwilling to consider Clyde’s evidence that his parents wanted him to have the farm? What’s wrong with looking outside the four corners of the will itself to understand what the testator really wanted? Would we take a similar view of extrinsic evidence if the document being interpreted were, say, a contract for the sale of goods?
3. Justice O’Quinn says that the language of the Fords’ wills “clearly and plainly devises all property to the other spouse to do with as the other may see fit.” But this is at best disingenuous and at worst deliberately false: the wills also, in the very next clause, “clearly and plainly” purport to limit what the other spouse can do with the property in the absence of Clyde’s consent. Why does the court enforce the former clause and render the latter clause void?
The reasoning of the trial court in this case may help explain things. Note that the trial court is said to have given two somewhat different reasons for invalidating Clyde’s power to block any effort by his surviving parent to alienate the farm (and with it any future interest he might have claimed by implication from this right). We are told that an attempt to convey such a power to Clyde must be void, both “as a restraint on alienation,” and as “repugnant to the … fee.” These reasons invoke two long-standing common-law principles: a policy against restraints on alienation, and the doctrine of numerus clausus.
Courts have generally strongly disfavored overt restraints on a grantee’s right to alienate their interest. Such restraints can make it quite difficult to move resources from lower-valued to higher-valued uses. A current owner of a resource might well be willing to sell it to a willing buyer who wants it more and can make more valuable use of it, but if we enforce a restraint on alienation imposed on the current owner by a past grantor, such a beneficial transaction cannot happen. The result would be serious misallocation of resources, and the rule that restraints on alienation are void demonstrates the common law’s willingness to defeat even the clearly expressed intent of a grantor where necessary to avoid such misallocation.
Numerus clausus (literally, “the number is closed”) is a legal principle derived from civil law systems but invoked in Anglo-American property law to refuse recognition of any interest in land other than the traditional common-law estates. Under this principle property owners may not create any new “bundle of rights” other than those that are already represented by the common-law estates themselves. So, because a possessory estate subject to a veto on the right of alienation by someone other than the possessory estate’s owner is not a “bundle of rights” that we can identify among our common-law estates, it must be outside the power of the Fords to create it. Courts have similarly rejected efforts by testators to, for example, give their surviving spouses unfettered control over devised property while also giving any property left over at the surviving spouse’s death to another beneficiary. Such hybrid bequests are, like the devise in Ford, typically treated as a fee simple (rendering the putative future interest void). See, e.g., Sumner v. Borders, 98 S.W.2d 918 (Ky. 1936).
Is the rule of numerus clausus motivated by the same rationales that give rise to the rule against restraints on alienation? Imagine if, rather than selecting from the fixed menu of common-law estates, property owners were free to build their own tailored bundles of property interests for grantees, with their own ad hoc collections of limitations and restrictions on the rights of those grantees, and that these idiosyncratic collections of rights and limitations became commonplace across society. Suppose you now want to buy a parcel of land in that society. Can you be sure what you’re buying? How? How well would we expect a real estate market built on a potentially infinite variety of interests in real property to function? See generally Thomas W. Merrill & Henry E. Smith, Optimal Standardization in the Law of Property: The Numerus Clausus Principle, 110 YALE L. J. 1 (2000).
4. Are there other principles underlying the rule against restraints on alienation or the numerus clausus principle other than ensuring a well-working market for property rights? Consider that the law of intellectual property has long included a so-called “first sale” doctrine, which provides that the first authorized purchaser of a good embodying an intellectual property right (for example, a book embodying a copyrighted work, or a machine embodying a patented invention) has the power to alienate that particular article free of any claim by the intellectual property right owner. See, e.g., 17 U.S.C. § 109(a) (copyright); Adams v. Burke, 84 U.S. 453, 456 (1873) (“[W]hen the patentee, or the person having his rights, sells a machine or instrument whose sole value is in its use, he receives the consideration for its use and he parts with the right to restrict that use.”) At least where the owners of the relevant intellectual property rights can be clearly identified, can this rule be justified by the same principle as the rule against restraints on alienation of land? If not, what is the rationale for the first-sale doctrine?
5. Consider the following excerpts from the September 6, 2012 Amazon Kindle Store Terms of Use Agreement (available at http://www.amazon.com/gp/help/customer/display.html?nodeId=201014950), which governs the downloading of electronic copies of copyrighted literary works from Amazon for viewing on electronic devices.
“Kindle Content” means digitized electronic content obtained through the Kindle Store, such as books, newspapers, magazines, journals, blogs, RSS feeds, games, and other static and interactive electronic content.
…
Use of Kindle Content. Upon your download of Kindle Content and payment of any applicable fees (including applicable taxes), the Content Provider grants you a non-exclusive right to view, use, and display such Kindle Content an unlimited number of times, solely on the Kindle or a Reading Application or as otherwise permitted as part of the Service, solely on the number of Kindles or Supported Devices specified in the Kindle Store, and solely for your personal, non-commercial use. Kindle Content is licensed, not sold, to you by the Content Provider….
Limitations. Unless specifically indicated otherwise, you may not sell, rent, lease, distribute, broadcast, sublicense, or otherwise assign any rights to the Kindle Content or any portion of it to any third party, and you may not remove or modify any proprietary notices or labels on the Kindle Content. In addition, you may not bypass, modify, defeat, or circumvent security features that protect the Kindle Content.
…
Termination. Your rights under this Agreement will automatically terminate if you fail to comply with any term of this Agreement. In case of such termination, you must cease all use of the Kindle Store and the Kindle Content, and Amazon may immediately revoke your access to the Kindle Store and the Kindle Content without refund of any fees. Amazon’s failure to insist upon or enforce your strict compliance with this Agreement will not constitute a waiver of any of its rights.
Is this agreement consistent with the rules you’ve just learned? If not, is it enforceable? See Vernor v. Autodesk, Inc., 621 F.3d 1102, 1111 (9th Cir. 2010).
6. Might a grantor impose restrictions on a grantee other than explicit limitations on the power to alienate that would raise the same concerns as those that motivate the rule against restraints on alienation? Consider the following cases:
19.3 Wills v. Pierce 19.3 Wills v. Pierce
No. 17557.
WILLS et al v. PIERCE et al.
Decided October 10, 1951.
Submitted September 10, 1951
All the Justices concur.
Newell Edenfield and Phillip Sheffield, for plaintiffs in error.
R. R. Jones, contra.
Atkinson, Presiding Justice.
(After stating the foregoing facts.) The granting clause in the deed under consideration was: “In consideration of the sum of one dollar to me paid, I . . do hereby sell and convey to [the grantee and,] . . his heirs, a tract or parcel of land and appurtenances in fee simple.” Then followed a description of the land, after which the grantor inserted the provision that the property was to be used as a home by the grantee, his family, and his heirs, and that upon the abandonment of the property as a residence by the grantee, his family, or his heirs, the same should revert to the grantor’s estate and go as provided in his will.
Standing alone, the first clause in the deed would have conveyed an unconditional fee-simple estate, and the sole question for determination is whether or not the condition subsequent under which the forfeiture is claimed is valid and enforceable.
A provision in a deed or will that a fee-simple estate may not be sold is void as being repugnant to the estate granted. Code, § 85-903; Freeman v. Phillips, 113 Ga. 589 (38 S. E. 943); Crumpler v. Barfield & Wilson Co., 114 Ga. 570 (40 S. E. 808); Stamey v. McGinnis, 145 Ga. 226 (88 S. E. 935); Leach v. Stephens, 159 Ga. 193 (125 S. E. 192); Farkas v. Farkas, 200 Ga. 886 (2), (38 S. E. 2d, 924).
While no express language is used in the present deed inhibiting alienation of the property, nevertheless—the condition being that the property was to be used as a home by the grantee, his family, and his heirs—the requirement to use as a home and the right to sell are mutually exclusive, and whether or not the case falls within the rule against perpetuities, the conclusion is inescapable that since the grantee and his heirs must use the premises as a home they cannot sell it.
The instant case is distinguished by its facts from Wadley Lumber Co. v. Lott, 130 Ga. 135 (1), (60 S. E. 836), where the condition subsequent was that the grantor reserved the right to repurchase the land, and Blevins v. Pittman, 189 Ga. 789 (2a), (7 S. E. 2d, 662), where the the restriction against alienation was limited to one person and her children.
A different question would have been presented if the condition subsequent had been that the premises should be used “as a home” or “for residential purposes” generally. See, in this connection, City of Barnesville v. Stafford, 161 Ga. 588 (1), (131 S. E. 487, 43 A. L. R. 1045), Taylor v. Bird, 150 Ga. 626 (104 S. E. 502), Rustin v. Butler, 195 Ga. 389, (24 S. E. 2d, 318), Williams v. Ramey, 201 Ga. 737 (1), (41 S. E. 2d, 159), Tabor v. Gilmer County, 205 Ga. 439 (1), (53 S. E. 2d, 915), and similar cases, where conditions subsequent requiring use of property generally for park, school, religious, and courthouse purposes were held valid and enforceable.
Accordingly, the present petition, seeking to enforce a forfeiture for breach of a void condition subsequent, failed to set forth a cause of action, and the trial court erred in overruling the defendants’ general demurrer.
Judgment reversed.
19.4 Wills v. Pierce: Notes + Questions 19.4 Wills v. Pierce: Notes + Questions
Notes and Questions
1. We learned in our unit on estates and future interests that grantors may use the defeasible fees to impose conditions subsequent on the continued enjoyment of a possessory estate. Are we still confident that grantors have such a power? If so, what are its limits?
2. Why does the court consider the enforcement of the condition that the property at issue “be used as a home by [the grantee], his family and his heirs” to present a “different question” than the enforcement of a condition “that the premises should be used ‘as a home’ or ‘for residential purposes’ generally”? What makes these questions different?
3. Is there any relationship between the holding of Wills and our previously discussed rule against restraints on alienation or the principle of numerus clausus? If so, what’s the connection?
19.5 Smedley v. City of Waldron 19.5 Smedley v. City of Waldron
United States Court of Appeals, Eighth Circuit.
No. 83-2222.
Harry H. SMEDLEY, Appellant, v. CITY OF WALDRON, Thomas Sawyer, Mayor, Waldron, Arkansas, Appellee.
Decided July 27, 1984.
Submitted May 14, 1984.
Rehearing Denied Aug. 21, 1984.
Before HEANEY, BRIGHT and JOHN R. GIBSON, Circuit Judges.
John R. Beasley, Bethell, Callaway, Robertson & Beasley, Fort Smith, Ark., for appellant.
David L. Rush, Walters & Rush, P.A., Greenwood, Ark., for appellee.
PER CURIAM.
In 1940, the City of Waldron, lacking funds to acquire a reservoir site, asked Hannah Smedley to donate land for that purpose. The governing agreement provided in part that:
5. The City of Waldron shall never sell, transfer, convey, lease, rent or otherwise dispose of the lands herein above described to other persons, firms, groups and/or corporations, except successors and/or assigns of itself, and if it attempts to do so, the lands immediately revert to Hannah Smedley and her heirs[.]
In 1977, Harry Smedley (Hannah Smedley’s sole heir and devisee) sued unsuccessfully for reconveyance, arguing that the city had abandoned the land. In dismissing the complaint, the district court found that the city had not abandoned the reservoir; rather, it continuously maintained and used it as a reserve water supply.
In 1981, the city leased the oil and gas rights of the deeded land to Texas Oil and Gas Corporation. As a result, Harry Smedley brought this case, alleging that the city’s lease of the mineral rights subjacent to the land violated paragraph 5 of the 1940 agreement. For relief, he demanded immediate reconveyance of the land and payment of all monies the city received under the lease. Both parties moved for summary judgment. The district court found that the agreement was an impermissible restraint on alienation and granted the city’s motion for summary judgment. We reverse and remand for further proceedings.
Some Arkansas courts have disapproved restraints on alienation. See, e.g., First National Bank of Fort Smith v. Graham, 195 Ark. 586, 593, 113 S.W.2d 497 (1938); Letzkus v. Nothwang, 170 Ark. 403, 408, 279 S.W. 1006 (1926). The district court erred in failing to distinguish the case at bar from the authority on which it relied regarding the impropriety of restraints on alienation. The district court relied heavily on a student note, Note, Sligh v. Plair: Right of Entry: An Effective Method of Controlling Land Use?, 33 Ark.L.Rev. 755 (1980). The note criticized the Arkansas Supreme Court’s decision in Sligh v. Plair, 263 Ark. 936, 569 S.W.2d 58 (1978), which held that, in a transaction between private parties, a grantor may not invoke his right of entry for breach of a condition in a deed if he has previously waived that right. Citing a prevailing trend in case law, the writer suggested that the court should instead have invalidated the conveyance as a restraint on alienation. Note, supra, at 762 n. 53.
However, the writer’s logic and the cases he cites in support of his contention are distinguishable from the case at bar. When the grant is to a governmental unit for a public purpose, Arkansas courts have been reluctant to void the grant as impermissibly restraining alienation if doing so would flout the grantor’s intent. One line of Arkansas cases, for example, approved disabling language in grants to localities where the land was to be used for school purposes. McCrory School Dist. of Woodruff v. Brogden, 231 Ark. 664, 333 S.W.2d 246, 249-50 (1960); Vanndale Special School Dist. No. 6 v. Feltner, 215 Ark. 252, 220 S.W.2d 131, 133 (1949); Taylor v. School Dist. No. 45 of Searcy County, 214 Ark. 434, 216 S.W.2d 789 (1949); Coffelt v. Decatur School Dist. No. 17, 212 Ark. 743, 208 S.W.2d 1, 2 (1948); Milner v. New Edinburg School Dist., 211 Ark. 337, 200 S.W.2d 319, 322 (1947); Williams v. Kirby School Dist., 207 Ark. 458, 181 S.W.2d 488, 490 (1944); Steel v. Rural Special School Dist. No. 15, 180 Ark. 36, 20 S.W.2d 316, 317 (1929). Because summary judgment in favor of the city ignores the public purpose of the grant and defeats the donor’s intent, we reverse the district court’s judgment.
Having decided that the restraint on alienation here is not impermissible, we remand the case to the district court to resolve the important remaining factual questions. The district court shall determine whether the mineral lease is a violation of the parties’ agreement. Because Arkansas courts hold that if the restraint is valid the intent of the donor controls, Gibson v. Pickett, 256 Ark. 1035, 512 S.W.2d 532, 535 (1974), the district court shall determine whether the donor intended that the city would lose the land only if the land was not used for a reservoir. Finally, the district court should determine the best means of fulfilling the donor’s intent: will her intentions be satisfied merely by awarding her heirs the revenues from the lease, or will the extreme remedy of forfeiture of the reservoir to the heirs be necessary?
19.6 Smedley v. City of Waldron: Notes + Questions 19.6 Smedley v. City of Waldron: Notes + Questions
Notes and Questions
1. Wait…what? How can Hannah Smedley’s clearly expressed intent to absolutely forbid the City of Waldron from alienating the reservoir get around the common-law rule against restraints on alienation? And why can’t Chester Ford’s far more modest but no less clearly expressed intent to restrain Lola Mae’s right to alienate do the same thing?
2. Restraints on Alienation vs. Restrictions on Use. In Wills the court seemed to be concerned that the condition subsequent restricting the grantee’s use of the land conveyed was a sort of restraint on alienation in disguise. Could a naked restraint on alienation—such as the one in Smedley—really be a restriction on use in disguise? If so, would it be any less offensive to the principles underlying the rule against restraints on alienation?
3. Does Smedley reach the opposite result from Ford and Wills because the grantor’s motivation is different in Smedley than in the other cases? (Is it?) Because the grantee is a public entity rather than a private individual? Because the restraint on the grantee is less onerous? (Is it?)