1 Here follows this paragraph :
" But lest this may be thought too narrow a ground, and since the question in all its aspects, with the authorities upon it, has been argued and fully considered, at the risk of being charged with entering upon a discussion which does not properly belong to the case, I proceed to inquire whether the result will be different if this restriction is to be placed upon the same grounds as if it had been made a condition, the non-observance of which had been declared by the will to forfeit or defeat the estate."
The remainder of the opinion (which is very long) contains the best discussion of this branch of the subject to be found anywhere in the books, reviewing the authorities at length. - Ed.
plaintiff's counsel, was overruled by the court. The defendant's counsel insisted that the provision restraining alienation, except among the devisees and their descendants, rendered the devise void, for creating a perpetuity; and also that the plaintiff's title did not take effect in possession until after the decease of all the devisees for life; which objections were overruled by the circuit judge, and a verdict for the plaintiff was taken subject to the opinion of the court
By the Court, Beardsley, J. - I think the objections which were taken on the trial, to a recovery in this case, cannot be sustained. The will of Ryer Schermerhorn was not annulled by the clause which it contained against alienation, although that clause, being repugnant to the nature of the estate devised, was void, at least as to those who were to take a fee under the will. 4 Kent's Com. 131; Newkerk v. Newkerk, 2 Caines, 345; 2 Cruise's Dig. 6; McWilliams v. Nisby, 2 Serg. & Rawle, 513; Co. Litt. 222, 223.
Under the will, the children of the devisor were tenants in common for life. When Jeremias, one of those children, died, his share passed by the will to his children, who thereby became tenants in common with the surviving devisees for life.
As the plaintiff's right did not accrue until the decease of his father, the tenant for life in 1836, the adverse possession, had it been proved, would have been no bar to the action. The testimony offered was therefore properly excluded, and the plaintiff is entitled to judgment on the verdict.
Judgment for plaintiff.1
19 Pennsylvania State, 369. - 1852.
Lowrie, J. - Under the will of P. S. V. Hamot, Mrs. Walker takes a fee simple, and not a life estate, and therefore the judgment should have been entered for the plaintiff, instead of the defendant.
The will is, " I devise to my daughter, Josephine M. Walker, and to her legal heirs," and then it proceeds to describe the property, and adds, " all of which I devise to my said daughter, and to her heirs forever, with this express condition and provision, that she shall not alien or dispose of the same, or join in any deed or conveyance with her husband for the transfer thereof during her natural life, but the same shall be and remain during the period aforesaid inalienable."
1 But such a condition has been held valid in England. In re Macleay, L. R. 20 Eq. 186. See, however, criticism on this case in In re Rosher, 26 Ch. Div. 801. See also In re Dugdale, 38 Ch. Div. 176. See the summing up of the cases as to restraints on alienation qualified as to persons in Gray's " Restraints," §§ 41-43 - ED.
This devise is very like that in the will of James Hunter, who gave a farm to his "son John and to his heirs, with this proviso, that he shall not have any right to sell nor convey the said farm to any person or persons whomsoever, but at his death all the right, title, and interest shall be and remain full and perfect in his lawful heirs; ' and this was held at our late term at Harrisburg, in the case of Reifsnyder v. Hunter, to convey a fee. [19 Pa. St. 41.]
The law does not pretend to carry out the intention of the testator in all cases; for many testators show a very clear intention to shackle the estates granted by them to a degree that is totally incompatible with any real enjoyment of them, and which the law does not allow. Hence, many of the rules of law are designed to control and frustrate the most manifest intent. The great merit of the rule in Shelley's Case is, that it frustrates and is intended to frustrate unreasonable restrictions upon titles; for when an estate is declared to be a fee simple or fee tail, it is at once made subject to a limitation in its proper form, no matter how clear may be the testator's intention to the contrary.
There can be no doubt that in the present case the testator meant to give an estate that should descend exactly as if it were a fee simple, for it is to Mrs. Walker and her proper heirs. This, then, is his primary intent, and the attempt to restrain the power of the first taker is his secondary intent; and it is entirely ineffectual, under the rule that where the primary and secondary intent of the testator are inconsistent with each other, the primary intent shall prevail.
It makes no difference that the testator has expressly withheld one of the rights essential to a fee simple, for the law does not allow an estate to be granted to a man and his heirs with a restraint on alienation, and frustrates the most clear intention to impose such restraint, just as it allows alienation of an estate tail, though a contrary intent is manifest. And it would be exceedingly improper in any court, in construing a devise to a man and his heirs, to endeavor to give effect to the restraint upon alienation by changing the character of the estate to a life estate, with a remainder annexed to it, or with an executory devise over.
The law is wise in not consenting to give effect to all the intentions of testators, for if it did, it would not be many generations before all the land of this country would be effectually shackled, so that the generations in possession of it would have but little power over it. To prevent even stray instances of this kind, the rule that avoids all restraints upon grants to a man and his heirs is most valuable in its influence.