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Opinion of the Court.

to his widow, daughter, brother and nephew, respectively, by clauses two, three, four and five, except so far as its effect upon the shares of the daughter and the widow may be modified by the trusts created for their benefit by clauses twenty and twenty-two.

The testator having declared his will that the devises of the shares shall be “ for the personal advantage of” the devisees, and that “ no creditors or assignees or purchasers shall be entitled to any part,” and having directed the devise over to take effect “if either of the devisees shall in any way or manner cease to be personally entitled to the devise made for his benefit,” the devise over of the shares of the brother and the nephew, if valid, would take effect upon any alienation by the first devisee, whether voluntary or involuntary, by sale and conveyance, by levy of execution, by adjudication of bankruptcy, or otherwise; or, at least, upon any such alienation before his vested equitable estate became a legal estate after the expiration of the twenty years.

But the right of alienation is an inherent and inseparable quality of an estate in fee simple. In a devise of land in fee simple, therefore, a condition against all alienation is void, because repugnant to the estate devised. Lit. $ 360; Co. Lit. 206 b, 223 a ; 4 Kent Com. 131; McDonogh v. Murdock, 15 How. 367, 373, 375, 412. For the same reason, a limitation over, in case the first devisee shall alien, is equally void, whether the estate be legal or equitable. Howard v. Carusi, 109 U. S. 725; Ware v. Cann, 10 B. & C. 433; Shaw v. Ford, 7 Ch. D. 669; In re Dugdale, 38 Ch. D. 176; Corbett v. Corbett, 13 P. D. 136; Steib v. Whitehead, 111 Illinois, 247, 251; Kelley v. Meins, 135 Mass. 231, and cases there cited. And on principle, and according to the weight of authority, a restriction, whether by way of condition or of devise over, not forbidding alienation to particular persons or for particular purposes only, but against any and all alienation whatever during a limited time, of an estate in fee, is likewise void, as repugnant to the estate devised to the first taker, by depriving him during that time of the inherent power of alienation. Roosevelt v. Thurman, 1 Johns. Ch. 220; Mandlebaum v. McDonell, 29 Michigan,

Opinion of the Court.

77; Anderson v. Cary, 36 Ohio St. 506; Twitty v. Camp, Phil. Eq. (No. Car.) 61; In re Rosher, 26 Ch. D. 801.

The cases most relied on, as tending to support a different conclusion, are two decisions of this court, not upon devises of real estate, but upon peculiar bequests of slaves, at times and places at which they were considered personal property. Smith v. Bell, 6 Pet. 68; Williams v. Ash, 1 How. 1. In Smith v. Bell, the general doctrine was not denied ; and

l the decision turned upon the construction of the words of a will by which a Virginia testator bequeathed all his personal estate (consisting mostly of slaves) to his wife “ to and for her own use and benefit and disposal absolutely; the remainder of said estate, after her decease, to be for the use of” his son. This was held to give the son a vested remainder, upon grounds summed up in two passages of the opinion, delivered by Chief Justice Marshall, as follows: “The limitation in remainder shows that, in the opinion of the testator, the previous words had given only an estate for life. This was the sense in which he used them.” 6 Pet. 76. “The limitation to the son on the death of the wife restrains and limits the preceding words so as to confine the power of absolute disposition, which they purport to confer of the slaves, to such a disposition of them as may be made by a person having only a life estate in them.” 6 Pet. 84.

In Williams v. Ash, a Maryland testatrix bequeathed to her nephew all her negro slaves, naming them, “provided he shall not carry them out of the State of Maryland, or sell them to any one; in either of which events I will and devise the said negroes to be free for life.” One of the slaves was sold by the nephew, and, upon petition against the purchaser, was adjudged to be free. As stated by Chief Justice Taney, in delivering the opinion of the court, and recognized in the statute of Maryland of 1809, c. 171, therein cited, “By the laws of Maryland, as they stood at the date of this will, and at the time of the death of the testatrix, any person might, by deel or last will and testament, declare his slave to be free after any given period of service, or at any particular age, or upon the performance of any condition, or on the event of any con

Opinion of the Court.

tingency." 1 How. 13; 3 Kilty's Laws. The condition or contingency, forbidding the slaves to be sold or carried out of the State, was, as applied to that peculiar kind of property, a humane and reasonable one. The decision really turned upon the local law, and appears to have been so understood by the Court of Appeals of the State in Steuart v. Williams, 3 Maryland, 425. Chief Justice Taney, indeed, going beyond what was needful for the ascertainment of the rights of the parties, added : “But if, instead of giving freedom to the slave, he had been bequeathed to some third person, in the event of his being sold or removed out of the State by the first taker, it is evident upon common law principles that the limitation over would have been good,” citing Doe v. IIawke, 2 East, 481. But the case cited concerned an assignment of a leasehold interest only, and turned upon the construction of its particular words, no question of the validity of the restriction upon alienation being suggested by counsel or considered by the court; and the dictum of Chief Justice Taney, if applied to a conditional limitation to take effect on any and all alienation, and attached to a bequest of the entire interest, legal or equitable, even in personalty, is clearly contrary to the authorities. Bradley v. Peixoto, 3 Ves. Jr. 324; S. C. Tudor's Leading Cases on Property (3d ed.) 968, and note; In re Dugdale, 38 Ch. D. 176; Corbett v. Corbett, 13 P. D. 136; Steib v. Whitehead, 111 III. 247, 251; Lovett v. Gillender, 35 N. Y. 617.

The case at bar presents no question of the validity of a proviso that income bequeathed to a person for life shall not be liable for his debts, such as was discussed in Nichols v. Levy, 5 Wall. 433, in Nichols v. Eaton, 91 U. S. 716, and in Spindle v. Shreve, 111 U. S. 542. In Steil v. Whitehead, above cited, the Supreme Court of Illinois, while upholding the validity of such a proviso, said: “We fully recognize the general proposition that one cannot make an absolute gift or other disposition of property, particularly an estate in fee, and yet at the same time impose such restrictions and limitations upon its use and enjoyment as to defeat the object of the gift itself, for that would be, in effect, to give and not to give, in the same breath. Nor do we at all question the general prin

Opinion of the Court.

ciple that, upon the absolute transfer of an estate, the grantor cannot, by any restrictions or limitations contained in the instrument of transfer, defeat or annul the legal consequences which the law annexes to the estate thus transferred. If, for instance, upon the transfer of an estate in fee, the conveyance should provide that the estate thereby conveyed should not be subject to dower or curtesy, or that it should not descend to the heirs general of the grantee upon his dying intestate, or that the grantee should have no power of disposition over it, the provision, in either of these cases, would clearly be inoperative and void, because the act or thing forbidden is a right or incident which the law annexes to every estate in fee simple, and to give effect to such provisions would be simply permitting individuals to abrogate and annul the law of the State by mere private contract. This cannot be done." 111 Ill. 251.

The restraint, sought to be imposed by the nineteenth clause, upon any alienation by the brother or by the nephew of the share devised to him in fee, being void for repugnancy, it follows that upon such alienation, or upon an attempt to alienate, his estate was not defeated, and no title passed under the devise over, either to the nephew in the share of the brother, or to the daughter or her children in the share of the brother or of the nephew, and therefore nothing passed by the daughter's deed to her husband.

For the reasons already stated, the appeal of the nephew, Ira Couch, from so much of the decree below, as declared the legal title under the residuary devises to have vested at the expiration of twenty years from the testator's death, is well taken; and the equitable estate in fee in one fourth of the residue of the testator's property, having vested in Ira Couch from the death of the testator, passed by his deed of assignment to Dupee, and by mesne conveyances back to him.

The various alienations of the share of the brother, James Couch, require more consideration.

4. The appellant Potter claims the share of James Couch under proceedings against him by his creditors, at law and in equity, the effect of which depends upon the statutes of Illinois.

Opinion of the Court.

As we have already seen, the legal title in fee was vested in the trustees, not under a passive, simple or dry trust, with no duty except to convey to the persons ultimately entitled; but under an active trust, requiring the continuance of the legal title in the trustees to enable them to perform their duties; and until the trustees had divided the property, either by conveying the lands to the residuary devisees, or by selling them and distributing the proceeds among those devisees, James Couch had only an equitable interest in the testator's whole estate, and no title in any specific part of his property, real or personal. Such being the facts, it is quite clear that the trust was not executed, so as to vest the legal title .in him, by the statute of uses of Illinois. Hurd's Rev. Stat. 1877, c. 30, $3; Meacham v. Steele, 93 Illinois, 135; Kellogg v. Hale, 108 Illinois, 164.

It is equally clear that such an equitable interest was not an estate on which a judgment at law would be a lien, or an execution at law could be levied, under the Illinois statute of judgments and executions, although the term “real estate," as used in that statute, is declared to include "lands, tenements, hereditaments and all legal and equitable rights and interests therein and thereto." Hurd's Rev. Stat. c. 77, SS 1, 3,10; Brandies v. Cochrane, 112 U. S. 344; Baker v. Copenbarger, 15 Illinois, 103 ; Thomas v. Eckard, 88 Illinois, 593; Howard v. Peavey, 128 Illinois, 430.

By the chancery act of Illinois, “whenever an execution shall have been issued against the property of a defendant, on a judgment at law or equity, and shall have been returned unsatisfied, in whole or in part, the party suing out such execution may file a bill in chancery against such defendant, and any other person, to compel the discovery of any property, or thing in action, belonging to the defendant, and of any property, money, or thing in action, due to him, or held in trust for him, and to prevent the transfer of any such property, money or thing in action, or the payment or delivery thereof to the defendant; except when such trust has in good faith been created by, or the fund so held in trust has proceeded from, some person other than the defendant himself." Hurd's Rev. Stat. c. 22, § 49.

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