Alsup v. Montoya


The deceased Alsup devised a will to have his land sold and the proceeds reinvested for the benefit of “the life tenants and contingent remaindermen.”  The will read:

“These tracts of land I devise to my daughters for and during the periods of their natural lives, and after their deaths, they are to go to their children, or the heirs of any child who may then be dead, the heirs of any child who may then be dead to represent its parent and take his or her share of said land.”  “The land herein devised to my daughters shall not be sold or alienated during their lives and no court shall sell the same for reinvestment or alter the situation of said land as it exists today, it being my purpose that it shall not be sold in any way whatever.”

Plaintiffs in the case are the three daughters of the deceased and the minor daughters are defendants, who are sued individually as the possible class of “remaindermen.”  Plaintiffs did not use the land for farming and usually leased it out and allowed use by the federal government.  The value of the land at sale drastically exceeds what they would receive in leasing it out as annual income.


Whether a “material change in conditions” warrants the setting aside of a restraint on alienation.


Restraint on alienation:  Prohibits the recipient from selling their interest in the property.  These are void at common law, as it is a fee tail.  “But restrictions by conditions subsequent or conditional limitation, even if they be absolute restraints upon alienation, are generally held valid if annexed to an equitable estate not greater than a life estate.


Yes, the right to sell exists despite the will.  The law in TN has generally held that “wholly removes” the power of the recipient to sell or alienate the property is “absolutely void.”  The deceased “testator” may place restrictions, for instance, on to whom/how the property is sold, but may not absolutely restrict its sale altogether.  Therefore, when conditions present themselves the court certainly has the power to allow the recipients of the land to sell/alienate themselves.

The deceased wanted to leave this land for his daughters and their decedents to farm because he envisioned them as being married to farmers and their daughters being married to farmers.  The idea was to protect them from spouses who would inherent the land and sell it and so on.  That is not the reality of the world today; Plaintiffs don’t even live in the same state, nor are they farmers, nor is the land as valuable for income as it is for sale.  His land, moreover, was more appropriate for the lease as a government operated soil bank than it was for farming.  Based on the probable intent of the deceased were he to be living in the present day to allow the sale of the farm land, the court rules the restraint upon alienation as invalid.  The court further orders that the reinvestment be “manifestly advantageous to the interests of all the parties.”

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