Bank of Powhattan v. Rooney
1937 Kan. LEXIS 22, 146 Kan. 559, 72 P.2d 993 (1937)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A clause in a will that imposes a disabling restraint on the alienation of real property is void unless the will provides for a forfeiture or other consequence for its breach.
Facts:
- Hugh Rooney died testate, leaving his son, D. Pat Rooney, a life estate in one parcel of land and a one-eighth interest in another.
- Hugh Rooney's will contained a clause stating that beneficiaries could not sell their inherited land interests to an 'outsider' for three years after his death, though sales between beneficiaries were permitted.
- At the time of Hugh Rooney's death, L. E. Laflin held a valid, unsatisfied judgment against D. Pat Rooney.
- Before the three-year period specified in the will had expired, Laflin sought to satisfy his judgment by having the sheriff levy upon and sell D. Pat Rooney's newly inherited property interests.
Procedural Posture:
- L. E. Laflin was the assignee of a 1922 judgment against D. P. Rooney from the district court of Brown county.
- In 1936, Laflin caused executions to be issued against D. P. Rooney's inherited property interests in Brown and Nemaha counties.
- An executor of Hugh Rooney's estate filed a motion in the district court of Brown county to stay the execution sales.
- The district court (trial court) granted the motion and enjoined the sales, finding that the restrictive clause in the will was valid and prevented a sale for three years.
- Laflin, the plaintiff and judgment creditor, appealed the district court's order enjoining the sales to this court.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a clause in a will that prohibits a beneficiary from selling inherited land to anyone other than another beneficiary for a period of three years create a valid restraint on alienation, thereby preventing a creditor from executing a judgment lien against the property?
Opinions:
Majority - Smith, J.
No, the clause in the will does not create a valid restraint on alienation. The great weight of authority holds that a restraint on alienation, even if limited as to time or restricted to a certain class of buyers, is void. For such a restriction to be valid, the instrument must provide a practical bar to its breach, such as a provision for re-entry or a devise over to another party upon an attempted sale. The clause in Hugh Rooney's will contained no such enforcement mechanism and was therefore merely an 'admonitory gesture.' Because the restriction is void, D. Pat Rooney's property interests vested immediately upon his father's death and are subject to execution and sale to satisfy the judgment held by Laflin.
Analysis:
This decision reaffirms the strong judicial policy against restraints on the alienation of property. It clarifies that merely including prohibitory language in a will is insufficient to restrict a beneficiary's right to transfer property. The case establishes that for a restraint to be enforceable, the testator must include a clear consequence for its violation, such as a forfeiture of the interest. This holding protects the rights of creditors by ensuring that inherited property is not shielded from legitimate debts by legally ineffective restrictions, thereby promoting the free transferability of property.
