## Facts

- Benjamin Cowart executed a will in 1910, probated in 1921, devising property to his children “in fee simple,” except specified marble and mineral interests.
- As to the mineral interests, the will stated they were to be held in common and “be not sold” by the children or executors during the children’s lives.
- The will authorized executors to lease the mineral interests for the benefit of Cowart’s children and grandchildren, but did not dispose of the mineral interests after the children’s deaths.
- After probate, the executors leased the mineral interests to Georgia Marble Company (Imerys’s predecessor).
- Around the same time, all of Cowart’s children executed warranty deeds conveying “all of our right, title and interest” in the relevant land lots in fee simple to Georgia Marble.
- In 1997, Cowart’s then-current heirs leased the same mineral interests to J.M. Huber Corporation, creating competing claims to ownership.
- Huber and the Cowart heirs filed a declaratory judgment action to establish ownership; the trial court upheld the will’s no-sale restriction on summary judgment, and a jury returned a general verdict for the plaintiffs.

## Issues

1. What estate Cowart’s children received in the mineral interests under the will.
2. Whether the will’s prohibition on sale during the children’s lives was a valid restraint on alienation, and the effect of any invalidity on the estate devised.
3. Whether the children’s warranty deeds conveyed full title in the mineral interests to Georgia Marble notwithstanding the will’s restriction.

## Decision

- The Supreme Court of Georgia reversed the judgment for Huber and the Cowart heirs.
- Cowart’s children took a fee simple interest in the mineral rights.
- The “be not sold” language was an invalid direct restraint on alienation of a fee simple estate and did not reduce the estate devised.
- The children’s warranty deeds effectively conveyed their full fee simple interest in the mineral rights to Georgia Marble, whose interest passed to Imerys.
- Because title had passed to Georgia Marble, the later lease from the heirs to Huber conveyed no enforceable mineral interest.

## Legal Principles

- Construction of a will is a question of law for the court; the controlling objective is to ascertain and effectuate the testator’s intent when consistent with governing legal rules.
- A direct restraint prohibiting a fee simple owner from selling or conveying property is generally void as an unreasonable restraint on alienation.
- When a will’s language indicates a fee simple devise and includes only an invalid anti-sale clause, the restraint is disregarded rather than treated as creating a lesser estate absent a valid subsequent disposition.
- A deed by devisees conveying “all right, title, and interest” in fee simple transfers the entire estate the grantors own, unless a valid limitation restricts their power to convey.

## Conclusion

The court held that Cowart’s will devised the mineral interests to his children in fee simple and that the attempted lifetime prohibition on sale was void; accordingly, the children’s deeds conveyed full mineral title to Georgia Marble, making Imerys the owner and defeating the heirs’ later lease to Huber.


Imerys Marble Co. v. J.M. Huber Corp., 276 Ga. 401, 577 S.E.2d 555 (Ga. 2003)