Babb v. Rand
345 A.2d 496 (1975)
Rule of Law:
When a devise grants property "in fee simple" but is immediately followed by conditional language within the same clause, the condition is not void for repugnancy; instead, it creates a defeasible fee that gives effect to the testator's clear intent.
Facts:
- Alma H. Rand owned an undivided share of a vacation property in Maine.
- In her 1932 will, Alma Rand devised this property to her step-son, John Freeman Rand, 'in fee simple with the proviso that he shall never deny access or occupation to the several heirs hereinafter named during their lifetime.'
- The named heirs included Alma Rand's other children and step-children, including Redford M. Rand, II.
- John F. Rand later devised his interest in the property to his daughter, Frances Garside.
- Frances Garside subsequently conveyed her interest by deed to the plaintiff, Muriel A. Babb.
- All of Alma Rand's surviving heirs, with the exception of Redford M. Rand, II, provided Muriel Babb with release deeds to any interest they had in the property.
Procedural Posture:
- Muriel A. Babb filed a complaint in Probate Court seeking to determine the legal effect of Alma Rand's will.
- The Judge of the Probate Court determined that John F. Rand took the property in fee simple absolute and the proviso was void.
- Redford M. Rand, II, the defendant, appealed the Probate Court's decision to the Supreme Court of Probate (a Justice of the Superior Court sitting in that capacity).
- The Justice of the Supreme Court of Probate affirmed the lower court's ruling, holding that the proviso was repugnant to the grant of fee simple and therefore null and void.
- Redford M. Rand, II, the appellant, then appealed that decision to the Supreme Judicial Court of Maine.
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Issue:
Does a clause in a will devising property 'in fee simple' with an immediate 'proviso' that the devisee never deny access or occupation to other named heirs create a fee simple absolute, thereby rendering the proviso void as repugnant?
Opinions:
Majority - Weatherbee, J.
No. A proviso that immediately follows and qualifies a grant of fee simple is not void for repugnancy; rather, the combination of phrases creates a fee simple subject to a condition subsequent, which is a valid defeasible fee. The court's primary duty is to ascertain and give effect to the testatrix's intent, which was clearly to grant John F. Rand ownership while also ensuring the other heirs could use the property during their lives. Seemingly inconsistent clauses must be reconciled if possible. The words 'in fee simple' followed by a condition create a defeasible fee, and the specific term 'proviso that' is classic language for a fee simple subject to a condition subsequent. This creates a right of re-entry for the heirs if the condition is broken. This situation is distinguishable from prior cases where a condition in a separate paragraph was found repugnant to a clear grant of fee simple absolute in an earlier paragraph. Here, the limiting language is part of the same devising sentence, and therefore modifies the grant itself.
Analysis:
This decision reinforces the judicial priority of honoring a testator's intent over applying rigid, formalistic rules of construction. It clarifies that conditional language is not automatically void for being 'repugnant' to a grant of fee simple, particularly when the condition is integrated into the same devising clause. The ruling establishes a clearer distinction between a void condition and a valid defeasible fee, influencing how future courts will interpret wills and deeds with similar limiting language. By upholding the condition, the court favors interpretations that preserve the entirety of a grantor's expressed wishes rather than invalidating parts of them.
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