Anderson v. Edwards

80 S.E.2d 260 (1954)

239 N.C. 510

ANDERSON et al. v. EDWARDS et al.

No. 95.

Supreme Court of North Carolina.

February 24, 1954.

*261 Weeks & Muse, Tarboro, for defendant-appellants.

Leggett & Taylor, Tarboro, for petitioner-appellee.

WINBORNE, Justice.

This is the determinative question: The testator having in Item One of his will devised and bequeathed his real and personal property to his wife and children "subject to and in accordance with the stipulations and conditions as set out in the further items of this my last will and testament", is the provision of Item Three postponing partition for ten years void as a restraint on alienation, and against public policy? Manifestly the trial court was of opinion that it is. However, this Court is constrained to hold that the provision is valid.

The annotators of decided cases in this and in other jurisdictions state that: "It seems to be well settled that a provision in a will which prohibits and postpones a partition of the estate is valid, and that, since a will is to be executed in accordance with the intent of the testator, no partition *262 will be granted where the will expressly or by necessary implication directs that the property shall be kept intact." Annotation 14 A.L.R. 1238. Citations follow from eighteen States, England and Canada, including the case of Blake v. Blake, 118, N.C. 575, 24 S.E. 424.

And in later annotation reported in 85 A.L.R. 1321, the author, after digesting cases from Illinois, Iowa, Kentucky, Nebraska and New York, and our own case of Greene v. Stadiem, 198 N.C. 445, 152 S.E. 398, in respect to the general rule that "testamentary provisions prohibiting or postponing partition for a reasonable time or until the happening of a designated event are upheld as not involving a restraint on alienation or limitation repugnant to the fee", comes to say: "Therefore the general rule is that effect will be given to the intention of the testator as expressed in the will, and that no partition suit will lie before the date so fixed or the happening of the event named."

In the light of this general rule applied to case in hand, it seems clear that the testator having amassed a large farmland estate, which he had financed on amortization plan, was concerned about the preservation of it. And it is clear that he was of opinion that by pulling together for ten years his wife and children could liquidate the indebtedness or, at least, so reduce it as to be in position to carry on singly.

In Holden v. Rush, 1907, 119 App.Div. 716, 104 N.Y.S. 175, 176, the court, in holding that partition could not be granted during the minority of the youngest child, said: "I find no authority which holds that a testator may not in one and same sentence in his will use words which apparently make an absolute devise of real estate and restrict the devisees, his children, from disposing of the real estate until the youngest child reaches his majority. I know of no principle of law which forbids that the plain intent of the testator, as expressed in this will, should not be given effect."

This case is distinguishable in factual situation from cases relied upon by appellee. They are not controlling here.

For reasons stated, the judgment below is

Reversed.

ERVIN, J., dissents.

BARNHILL, C. J., took no part in the consideration or decision of this case.