1The rule is the same in the case of attempts to restrain the alienation of equitable interests in the nature of a fee. Potter v. Couch, 141 U. S., 296. But see Claflin v. CLaflin, 149 Mass., 19, and the discussion in Gray's " Restraints," §§ 120-124P.
A provision (conditional limitation) that a fee shall be forfeited in case the grantee aliens a life interest in another parcel conveyed by the same deed would seem to be a purely collateral condition, and not void. Camp 7/. Cleary, 76 Va., 140. Sec, however, Gray's discussion of this case in his " Restraints on Alienation " (2d ed.), §§ 29a-29c - En.
devise, the devise is not made upon the condition that it shall be forfeited on a sale, or an attempted sale, and that the interest of the devisees shall terminate, or go to the heirs, nor is it limited over to any other person upon a breach of the restriction upon the power of sale, but that the devise and the interest intended to pass by it were to be absolute and unconditional in this respect, whether the restriction should be observed or violated. And as to the agreement to these restrictions, which the devisees were required to sign, suppos-ng it to have been signed, who were the parties whose interests were to be affected by it? Who had a right to insist upon its performance, or to any remedy for its breach? Clearly none but the devisees themselves, who might, therefore, mutually release, abandon and put an end to it, at least with the unanimous consent of all, which they did by their conveyances, if these were in other respects valid. It was, in fact, very frankly admitted by the counsel for the defendants that the interest given by the will to these devisees was a present vested interest, though it was insisted that it was not properly an interest in the land, but the proceeds; that these proceeds could only be obtained through the execution by the executors of the power of sale.
But when such a bare power of sale is given to the executors merely to sell the lands for the purpose of paying over the proceeds to devisees, whose right under the will to such proceeds is an absolute and vested right, we understand the law to be settled, not only that all such devisees may collectively, before the power of sale is executed, elect to take the land, instead of the proceeds, according to their respective interests in the latter, and thus prevent a sale, but that each of them may ordinarily so elect as to his own share. See Reed v. Underhill, 12 Barb. 113; Kirkman v. Miles, 13 Ves. 338; Craig v. Leslie, 3 Wheat. 563; Tazewell v. Smith's Admrs., 1 Rand. (Vir.)313; Burr v. Sim, 1 Whart. 252; Broome v. Curry's Admrs., 19 Ala. 805; Quin v. Skinner, 49 Barb. 132; Story's Eq. Jur. § 793. This is the effect which the law itself gives to such devise, - which gives a vested interest in the whole proceeds to the devisees, - whether the will provides for such an election or not, and even though it should expressly forbid the election.
Whether it would be competent to make a devise upon the express condition that the proceeds alone should be received or the devise to be forfeited, or the property or proceeds go over to another in case of a refusal to accept the proceeds, or of claiming the land, we need not consider, as this devise is not made dependent upon any such condition. And though the language makes it in form a devise of the proceeds instead of the land, yet so far from providing in reference to this devise or that of other property in Detroit, against the election (as it may be said the testator has undertaken to do in reference to the devise of other portions of property which the executors might sell at any time), the last provision of the will in reference to the property in Detroit seems to me to recognize the right of the devisees to elect to hold the land instead of the proceeds, and dispense with a sale as soon as the time should arrive, when, by the will, the executors were to be authorized to sell, viz.: as appears in a former provision in reference to this particular devise, upon Breckenridge reaching the age of twenty-five and the death of the testator's widow, etc.; thus recognizing the right to elect at that time, but undertaking to restrict the right until that time.
We must, therefore, hold that the devise to the widow was of a life estate (should she remain unmarried), and that to the other devisees it was a devise of the fee subject to the life estate; in other words, the remainder in fee. And though they might at their election permit or prevent a sale by the executors for their benefit and on their account, it was a present vested remainder in fee, or the entire estate in fee, subject to the life estate of the widow.
Now. as to the restriction against alienation, while there is, as to the particular lands here in question, a direct and express restriction upon the executors not to sell it until Breckenridge should reach the age of twenty-five, or during the life of the widow if she remained unmarried, the restriction upon the devisees not to sell this property is not so direct and express. It is clear, however, and admitted, that the result of all the provisions taken together is a sufficiently clear expression of intention to forbid and restrict the devisees from selling the property or its proceeds, in other words, the estate devised so far as these lands are in question, until the period last above mentioned. The estate devised being an absolute vested estate in fee, the only remaining question is whether such a restriction of the right of the devisees to sell such an estate is valid. This is the main question in the case and was very properly so treated and discussed by the counsel on both sides. And before proceeding to determine this question, it may, for the sake of clearness and to avoid the confusion which might arise from confounding questions which might otherwise seem analogous, be as important to point out what the question does not involve, as what it does. It does not, then, involve the question whether a restraint upon the sale of this property for an equal length of time might not have been rendered legally effective by the conveyance of the legal title to trustees, in trust for the benefit of these devisees, according to instructions as to time of sale, which might have been inserted in the will; in which case the validity of the restrictions as to time would depend mainly upon the question whether the period exceeded that allowed by the rule against perpetuities. Nor does the question involve an inquiry how far a somewhat similar object might have been accomplished by making this estate in fee in these devisees defeasible, upon the condition of their executing, before a certain period, a conveyance to certain persons, or to any other than certain persons, or to any party whatever, or of their becoming bankrupt, or allowing a sale upon execution, or permitting a judgment to become a lien, or upon condition of using the property in some particular way, the property being limited over to another, or to be forfeited and revert on breach of the condition. In these cases there would be some party besides these devisees interested in the observance of the condition, with a right to take advantage of the breach, viz., the heirs of the devisor, or the person to whom the property was limited over. It is quite possible that many restrictions or qualifications upon the right of devisees or grantee may be made effectual by making the estate itself dependent upon such condition, to which it could not be subjected if the estate given is absolute, as it is admitted to be here.