Wharton v. Mollinet

BARNARD, P. J.—

This is an action for a partition, as between the three owners, of a described 40 acres of land in Kern County.

The land formerly belonged to Neis P. Clausen. In the second, third and fourth paragraphs of his will he gave full title of this land to his three nieces, respectively, giving a one-half interest to one of them and a one-fourth interest to each of the other two. The fifth paragraph appointed one of the nieces as executrix. In the sixth paragraph he stated that if he was still in possession of this land at the time of his death “I hereby decree that my heirs do not sell or dispose of the same for twenty (20) years after my demise.”

A decree of distribution was entered on March 18, 1948, in which the court found that the property in question was devised and bequeathed by the will to the three nieces, one-half to the one and one-fourth to each of the others, and further found that Paragraph 6 of the will read as above described. Thereafter, it was ordered and decreed that the property in question be distributed to the three nieces in the proportions

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above named “subject, as to (the property in question) to the decree of Neis B. Clausen, that they do not sell or dispose of the same for twenty years after his death.”

On March 3, 1949, after the decree of distribution had become final, this action for partition was brought by one of the nieces. The court found that the three nieces are the owners of the property as tenants in common; that one of the nieces is the owner in fee simple of a one-half interest in the land and each of the other two nieces is the owner in fee simple of a one-fourth interest therein; and that they acquired their title to the property through the provisions of said will and the decree of distribution which was entered. The court then further found “that the provisions of said will and said decree restraining the sale or disposition of the above property for a period of twenty (20) years is a restraint on alienation and is void under section 711 of the Civil Code,” and that the devisees took the property free from that restriction. An interlocutory decree was entered providing for a partition of the property between the three nieces, or in the event this could not be fairly done for a sale of the property and a division of the proceeds. Prom this interlocutory decree one of the nieces has appealed.