invalidating as condition encouraging divorce a perpetual rental restriction conditioned on daughter not being married to her husband at whatever time in the future that she wished to rent
How later courts described this case
- invalidating as condition encouraging divorce a perpetual rental restriction conditioned on daughter not being married to her husband at whatever time in the future that she wished to rent
- explaining that “[i]n. both the will and tryst contexts, substance trumps form”
- “If at any time [the property] shall be placed for sale . . . .”
Written by the judges who cited it.
The opinion
BAKER, Judge,
concurring in part and dissenting in part.
My colleagues have done an admirable job of giving life to Owen's testamentary words. I concur in large part with their conclusions but must respectfully dissent from the finding regarding the "rental restriction." Slip op. p. 9.
Article V bestows a life estate in trust upon Lyke. It does not, however, afford her the right to rent the residence; and in fact, it imposes the duty of renting the residence upon the Logans without in any way requiring that they rent or consider renting the farm to Lyke. As noted by the majority, the trust's purpose "is the management of the farm and the rental of the residence during Lyke's lifetime." Slip op. p. 7. The trust, therefore, is not intended to bestow upon Lyke the right to rent the residence. Had the document been silent on this matter, we would not conclude that Lyke had a right to rent the residence *614 because it places rental responsibility on the Logans and does not give Lyke a right of first rental refusal. Thus, in my view the trial court erred in finding that Lyke's "right to either rent or rent out the residence" was restricted, inasmuch as she did not have such a right in the first place. Appellant's App. p. 31 (emphasis added).
I also part from my colleagues' conclusion that this clause tends to encourage Lyke to divorce Brian, inasmuch as Article V does not prevent the Logans from renting to Brian while he and Lyke are married; it merely provides that Lyke may not be the tenant. Moreover, whether Lyke is a tenant in no way affects her right to receive the rent proceeds. Thus, she need not divorce Brian either to live on the property or to receive the income from the rental of the residence. I would reverse the trial court, therefore, on its finding that the rental restriction is void as against public policy. In all other respects, I concur with the majority opinion.