But it is said that the rule in Shelley's Case should be applied; but it will be seen that its application will produce the same result. That rule, as formulated in 2 Jarman on Wills, page 332, will best illustrate the position here. It is: "The rule simply is, that where an estate of freehold is limited to a person, and the same instrument contains a limitation, either mediate or inmediate, to his heirs, or the heirs of his body, the word "heirs" is a word of limitation, - i. e., the ancestor takes the whole estate comprised in this term. Thus, if the limitation be to the heirs of his body, he takes a fee tail; if to his heirs general, a fee simple." The rule operates upon the words of inheritance without affecting the words of procreation, so that if, in any case, the words, " heirs of his body," or other equivalents sufficient to create an estate tail, are used, a fee tail is vested in the first taker, and not the fee simple, as seems to be supposed. Therefore, if the rule be applied, Mrs. Lehndorf would, at common law, be seized of an estate in fee tail, and brought directly within the terms of section six of the Conveyance act, before cited. When, therefore, Mrs. Lehndorf, joined by her husband, mortgaged the land to Humphrey, it was not in her power to incumber the fee, and that estate passed to and vested in her two children then living, unincumbered by the lien created by the mortgage.1
3. The Necessary Incidents of a Fee.
(1.) In General: Voluntary and Involuntary.2 Inter vivos and by Devise.
97 North Carolina, 206. - 1887. [Reported herein at p. 561.]
1 Estates-tail are practically non-existant as such in the United States, - the statutes converting them, at the moment of their creation, into some other form of estate or estates. In New York and several other States, they become estates in fee-simple, some of these States preserving any remainder in fee under certain circumstances. N. Y, R. P. L., § 22. Other States follow the rule of Lehndorf v. Cope. In Massachusetts and Pennsylvania the estate seems to remain in-tail until a conveyance occurs by some tenant-in-tail. See the American note, p. 121, of Hutchins' Williamson Real Property. - Ed.
2 "Involuntary," i. e., by process of law for the payment of debts of its owner and for taxes and assessments; also in the exercise by the State of its right of eminent domain. - Ed.
(2.) Validity and Effect of Clauses Intended to Restrain the
Alienation of a fee.
(a.) Conditions, limitations and conditional limitations Declarations that the fee shall be inalienable,2 General restraints.
97 North Carolina, 206. - 1887.
Action by the children and heirs-at-law of Thomas Munroe to recover certain lands from the heirs of W. S. Hall to whom they were conveyed by Annabella and Mary Munroe.
The lands in question were deeded by N. Munroe to his children, Thomas, Patrick, Annabella and Mary, their heirs, etc., upon certain terms and conditions set out in the opinion. Defendants succeeded below.
Merrimon, J. (after stating facts). - The sole question presented by the record in this case for our decision is, did the deed in question operate to convey the fee simple estate in the land therein described as situate and being on the north side of the road mentioned to Annabella Munroe and Mary Munroe?
We cannot hesitate to answer this question in the affirmative. The deed by appropriate terms for that purpose, conveys the fee to them, and there is nothing in it that at all indicates a contrary intention on the part of the donor, except the words limiting the estate to these sisters " as long as either of them is single," and the proviso in a subsequent part of it, that they should never " sell or dispose of any part of the above named land ... in any manner whatever."
The effect of the words " as long as either of them is single," need not be considered, because both the sisters died many years ago, and were never married. In any possible view of these words, they could only indicate a purpose to give the land to Patrick in a contingency that never happened and never can happen. There is no intimation of any purpose to abridge the estate given them, unless in the contingency of marriage.
1" No attempt is made to attach any character of inalienability to the estate, but the estate is given either on condition that it shall not be alienated, or until it is alienated." Gray's " Restraints on Alienation " (2d ed.), § 10. That no special favor is shown to limitations or conditional limitations in restraint of alienation over conditions, see §§ 29a-29c. Id. - Ed.
2See Gray's " Restraints," § 10. With a third class of attempted restraints - covenants not to alien - we have here nothing to do. See, however, note to § 19 of Gray's " Restraints." - Ed. LAW OF PROP. IN LAND - 36
As to the proviso recited above, it is repugnant to the fee simple estate previously conveyed, and is in absolute restraint of all alienation, and is, therefore, simply void. An important incident of the fee simple estate is the right of alienation, and hence, any condition in a deed conveying lands or a devise that seeks to prevent alienation altogether, is void, being repugnant to the estate conveyed The rule, however, is not so comprehensive in its operation as to prevent all conditions and restraints upon the power of alienation. Such as are limited and reasonable in their application, and as to the time they must operate, are valid and will be upheld. 1 Wash, on R. P. 67-69; 4 Kent Com. 135; Pearson's Law, Lec. 135
There is no error and the judgment must be affirmed.1
Christiancy J., in
29 Michigan, 78. - 1874.
This devise, it is true, is not in form a devise of the lands themselves, but of the proceeds when sold. If, however, there is anything in the will made perfectly clear and placed beyond all possible doubt, it is that the proceeds should be the absolute and exclusive property of the devisees (except the interest of Ellen Daily and Ann Baxter might be defeated by a condition subsequent), and that no other person should, in any event, have any right or interest in them under any circumstances. Not even the violation by them of the provisions restricting their power of sale, was to defeat or affect their interest, forfeit it to the heirs, or pass it over to others; but all conveyances of that kind, it is declared, shall be void; and the testator even goes so far as to declare it to be his intention " that no proceedings whatever, either in a court of law or chancery, shall in any way impair or deprive any of (his) devisees of any of the bequests in this will made, before the same is actually paid into the hands of such devisees." It is very clear, therefore, that though the word "condition" is used in connection with this