## Facts

- Fred Casey’s will left $50 to six of his seven children and devised the residue, including Pope County real property, to his son Donald J. Casey.
- Shortly before Fred’s death in 1974, he executed a codicil imposing restrictions tied to Donald’s daughter, Karen Kim Casey.
- The codicil stated that Karen Kim Casey could never (a) own the devised real estate, (b) possess it “as a tenant,” or (c) be on it “as a guest” for more than one week in any calendar year.
- The codicil attempted to create a defeasible estate in Donald that would immediately terminate upon any prohibited ownership/possession/guest stay by Karen, with the affected property shifting to Sam Casey in fee simple absolute.
- After Fred’s death, Donald held title subject to the asserted restriction.
- In 1984, Donald petitioned in chancery court to remove the cloud on title by declaring the codicil restriction invalid; other family members opposed and sought enforcement of the limitation over to Sam.

## Issues

1. Whether a testamentary condition causing forfeiture if a named individual ever owns, possesses as a tenant, or visits the land beyond a specified time is void as an unreasonable restraint on alienation and use.
2. Whether the codicil’s restriction is unenforceable because its key language is too vague or ambiguous.
3. If the restriction is void, whether the attempted shifting limitation over to Sam Casey fails and the primary devisee takes in fee simple absolute.

## Decision

- The Arkansas Supreme Court affirmed the chancery court’s decree.
- The court held the codicil restriction invalid as an unreasonable restraint on alienation and also too vague to enforce.
- Because the restriction was invalid, Donald J. Casey owned the property in fee simple absolute, and the attempted executory limitation over to Sam Casey was ineffective.
- The court ordered the cloud on Donald’s title removed.

## Legal Principles

- A testator may not enforce a condition that imposes an unreasonable restraint on the free use or disposition of property, even if the condition is framed as a defeasible estate with a limitation over.
- A condition that effectively restricts ownership and ordinary incidents of possession by tying forfeiture to the conduct or presence of a particular person, including limits on mere visitation, may constitute an unreasonable restraint.
- Ambiguous or uncertain testamentary language material to the condition (including wording susceptible to materially different readings) may render the condition too vague to enforce.
- When a testamentary restriction is void, the primary devise is not cut down by the invalid condition, and the devisee takes a fee simple absolute free of the attempted limitation over.

## Conclusion

The court invalidated a codicil that conditioned Donald’s inheritance on permanently excluding his daughter from ownership, tenancy, and extended visits, finding the restriction both vague and an unreasonable restraint on alienation; Donald therefore took the property in fee simple absolute, and the shifting gift to Sam failed.


Casey v. Casey, 287 Ark. 395 (Ark. 1985)