Let this judgment be reversed, and the record remitted to the Court of Common Pleas of Erie county, with directions to enter judgment in favor of the plaintiff, in accordance with the terms of the case stated. Judgment reversed, etc.
Phillip's Equity (N. C), 61. - 1866.
Battle, J. - In the events which have happened since the death of the testator, it has become unnecessary for us to decide the question raised in respect to the slaves given to his daughter, Mary Jane.
The only inquiry pressed upon us relates to the clause of non-alienation annexed to the devises of land to each of the testator's children. These devises are in fee simple, and the condition, by which the testator has attempted to restrain the alienation of the land before the devisees respectively attain the age of thirty-five years, is contrary to the nature of the estate, and is therefore void. See Pardue v. Give/is, 1 Jones Eq. 306, where a condition restrictive of the power of free alienation was pronounced a nullity. The present case differs from that only in the circumstance, that here the restriction is confined to a disposition of the land under the age of thirty-five years. But this, we think, makes no difference. If the testator had the power to impose such a condition for thirty-five years, he might have imposed it for fifty, seventy or a hundred years, for we are not aware of any particular age up to which the restriction would be good, and beyond which it would be bad. Coke, Blackstone, and other elementary writers, lay down the rule generally, that a condition of non-alienation annexed to the conveyance inter vivos, or to a devise of a fee, is void, because it is inconsistent with the full and free enjoyment which the ownership of such an estate implies. Our conclusion is, that the devisees in fee under the will before us have the full power of selling, or otherwise disposing of their lands respectively, without the danger of incurring a forfeiture for so doing. A decree to that effect may be drawn accordingly.
1But "a condition or conditional limitation upon alienation of a contingent interest before it vests is good." Gray's "Restraints," $46. For" restraints
(c.) Exception in case of separate estate of married woman1 FEARS v. BROOKS. 12 Georgia, 195. - 1852.
By the Court., Nisbet, J., delivered the opinion. - Whether the demurrer to the bill ought to be sustained or not depends upon two questions.
First. Does the will create a separate estate in the testator's daughter? If it does not, upon her marriage, the property left to her, vested in her husband by the marital right, and his assignment of it to Brooks, the complainant, was good.
Second. If the will creates a separate estate in the daughter, does it at the same time restrain her power of alienation? If it does not, as she joined with her husband in the assignment to Brooks, his title is good, and he ought to recover.
(1) As to the first, I remark, that a separate estate may be made in a feme sole, as well as in a married woman, which, upon marriage, will be good against the marital right; and this although no particular marriage be in contemplation. Upon marriage, the trust will immediately attach upon the property, so as to exclude the husband's title, although no further settlement be executed. Anderson v. Anderson, 2 M. & R. 427; Davis v. Thorneycrof, 6 Sim. 420; Tullett v. Armstrong, 1 Beav. 1; 4 M. & Cr. 390; Scarborough v. Bowman, 1 Beav. 34; 4 M. Cr. 377.
The contrary was held by Lord Cottingham, in Massey v. Parker, 2 M. & R. 174. In that case, it was ruled, that when property is given or settled to the separate use of an unmarried woman it vested in her husband upon her marriage. In the subsequent cases of Tullett v. Armstrong and Scarborough v. Bowman, his decision was overruled; and in affirming these decisions on appeal, Lord Cottingham overruled himself. 4 M. & Cr. 377. So the doctrine is to be considered settled as first stated.
(2) The interposition of a trustee to protect the separate estate was at first deemed essential, because the interest of a married woman is the subject only of equitable cognizance. Harvey v. Harvey, 1 P. Williams, 125; s. c. 2 Vern. 659; Barton v. Pierpont, 2 P. Williams, on alienation qualified as to manner," see §§ 55-5og of Gray. Fines for alienation and provisions as to the payment of quarter sales are now forbidden in New York by the Constitution. Art. 1 § 14.- Ed.
1 See Gray's "Restraints," §§ 125 to 131k. As will be seen, the restraint may be good though there be no gift over and no forfeiture of any kind imposed. This class of estates, however, is likely soon to be obsolete in the United States. - Ed.
79. It is, however, now settled that a separate estate may exist, without the intervention of trustees. In that case, the husband will take the legal interest, but equity will treat him as a trustee for his wife. Bennet v. Davis, 2 P. Wil. 316; Darley v. Darley, 3 Ath. 399; Lee v. Prideaux, 3 Bro. C. C. 383; Parker v Brooke, 9 Vesey, 583; Major v. Lansley, 2 R. & M. 355.
The better course is to provide a trustee. 2 Roper, H. & W. 152. In this case, the testator appointed a trustee.
(3) My next proposition is that no particular form of words is necessary to create a trust for a feme's separate use. It may be declared in express terms, or it may be inferred, from the provisions or directions as to the mode of enjoyment, or management of the property. Hill on Trustees, 420; Stanton v. Hall, 2 R. & M. 180; Tyler v. Lake, b. 188.
The intention, however, to create a separate estate must be clearly expressed. Lord Brougham held, in Tyler v. Lake, 2 R. & M. 189, that the expressions must be such as "leave no doubt of the intention, and which forbid the court to speculate on what the probable object of the donor might have been." Taking this stringent rule as our guide, we think that a separate estate was created by the will now under consideration, and that there really is no room to speculate about what the object of the father was, in the provision which he made for his daughter. There are two clauses of the will which bear upon the question. The testator, Andrew Hall, divides the residuum of his estate equally among his nine children and directs that "the shares of his daughters be paid over, by his executors, to the trustee afterwards appointed, for their use." The seventh item of the will appoints Mr. Fears trustee for his daughters, one of whom, Amanda, after his death, intermarried with Cate, who assigned her interests in the estate to Brooks, the complainant. The duties of the trustee he proceeds to define thus: - "to receive from and receipt to my executors for the distributive shares due to each of my daughters, and to be vested by him in such property as, in his judgment, may be most conducive to their comfort and interest, and to have the title to such investment made to him, as trustee, for their use and benefit."