Nor does the fact that, in the case of an executory devise, or in that of a contingent remainder, or any other interest not vested, a restriction upon the power of the devisees to sell before it shall become vested in interest, would be good,1 in any manner tend to sustain such a restriction upon a vested estate in fee.
This devise is not made to trustees for the benefit of the devisees, but directly to the devisees themselves. The estate devised is not a conditional one to be forfeited or to revert to the heirs of the testator, or to go over to others on a breach of the restrictions, nor one which is to vest at some future day, or upon the happening of some future event, but an absolute vested remainder or estate in fee, and though not to come into actual enjoyment until the death of the widow, to whom a life estate is given, it is just as much vested and the devisees have just as much right to sell the interest or estate devised as if there had been no intervening estate for life.
And the question of the validity of the restriction is, in my view, precisely the same in all its legal aspects as if no life estate had been given to the widow, but the whole had been given in fee directly to these devisees, as an absolute estate in fee and in possession, with the same provisions restricting the power of sale. My first difficulty in holding the devisees or their estate bound by the restriction is this: A legal obligation always involves the idea, not only of a party upon whom it rests, but of another party in whose favor, or for whose interest or benefit it is imposed, and who, therefore, has the right to call for its enforcement.
1 See § 46 Gray's " Restraints on Alienation " - Ed.
To give vitality and force to the current of a legal obligation, it requires, like the galvanic current, a battery with two opposite poles, between which the current is to pass and the force to operate. A circuit formed upon only one remains quiescent. The force of gravitation itself would cease to act, if not to exist, without at least two bodies (or particles) between which it could be exerted. And it is not easy to see how this restriction can impose any legal obligation upon the devisees or limit their power over the estate, when the observance or violation of the restriction can neither promote nor prejudice any interest but their own; and it has not been claimed that any other interest could be affected here. Let us test this a little further by a few analytical questions. In whose behalf, for whose interest, is the restriction imposed? Is it not solely for that of the devisees themselves? And who has a right to enforce it or complain of its breach. What species of legal tie or obligation is that which attaches only at one end, and, ending where it begins operates only in behalf of the very party upon whom, or on whose property it is imposed, making him at the same time the obligor and obligee? May not a party in whose behalf an obligation exists forego or release its performance? If not, then at whose instance will the court compel him to insist upon its performance? It must be admitted that such a restriction, in such a case, is not naturally calculated to lead to litigation, since, if the party in whose favor the obligation exists insists upon its performance, it would in all probability be performed; and if the party upon whom it rests, should refuse to obey the restriction, the party in whose favor it was imposed would not be likely to insist upon it, both these parties being one and the same. But does it not seem to result that he may do very much as he pleases about performing such an obligation? I confess my inability to see how the restriction is any more binding upon the devisees or their estate than it would have been upon the heirs or their estate, had the testator disposed by the will, only of the life estate to the wife, and left the remainder to descend to the heirs, and undertaken to impose the same restrictions upon them or upon the estate in their hands. In either case the whole estate (subject to the life interest) is equally centered in the devisees, in one case, and in the heirs in the other, and no interest but their own to be affected by its observance or violation. In neither case, as it seems to me, can the restriction be regarded as anything more than the expression of a desire, or the mere advice of the testator, which though the devisees might choose more or less to respect, they had a clear legal right to disregard. To make it obligatory would be to sanction a testamentary guardianship over parties not subject to that species of control.
These considerations seem to me sufficient to dispose of this case, and to show that, as in Hall v. Tufts, 18 Pick. 459, and Blackstone Bank v. Davis, 21 Pick. 42, the intent expressed is contrary to law, or, at least, one which courts cannot enforce. See, also, Brandon v. Robinson, 18 Ves. 429; Graves v. Dolphin, 1 Sims. 66; Rochford v. Hackman, 9 Hare, 479; Doebler' s Appeal, 64 Penn. St. 9; Kepple's Appeal, 53 Penn. St. 211; Craig v. Wells, 11 N. R. 315.1
(b.) Qualified restraints.
1 Denio (N. Y.), 448. - 1845.
Ejectment. The will of Ryer Schermerhorn devised to each of his six children for life a one-sixth part of certain premises and after their decease, respectively, the share of each was to go to his children. The will contained this provision: " No part or parcel of the real estate herein above by me devised shall be sold or alienated by any of my above named children, or by any of their descendants or posterity, except it be to each other, or to their and each of their descendants, upon pain that he, she or they shall forfeit the same and be debarred of holding any part thereof." One child died in 1838, leaving children of whom plaintiff is one.
The defendant offered to prove a conveyance in fee of the premises from Jeremias Schermerhorn, the plaintiff's father, and a possession by the defendant and those under whom he claimed title under that conveyance for twenty-six years which, being objected to by the