/^/ Cornell University Law Library FROM THE BENNO LOEWY LIBRARY RECEIVED BY CORNELL UNIVERSITY UNDER THE WILL OF MR. BENNO LOEWY KF 654.G77 "*" ""'""^'^ "-Ibrary 'miS!i}^,!^:^^S,:!!>!:^P^iO'' of property The original of tliis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018769632 RESTRAINTS ON THE ALIENATION OF PROPERTY BY JOHN CHIPMAN GRAY STORY PROFESSOE OF LAW IN HARVARD UNIVERSITY BOSTON SOULE AND BUGBEE 1883 3 /7y/a Copyright, 1883, By John Cbipmah Gray. TTniyeksity Press : John Wilson and Son, Cambeidok. PEEFACE. W' L'r- How far the law will aUow a man to enjoy rights in property, which he cannot transfer, and which his creditors cannot take for their debts, is a question becoming more and more frequent in this country. In 1876 I shared the surprise, common to many lawyers, at the opinion of the Supreme Court of the United States in the case of Nichols v. Eaton, 91 U. S. 716, containing, as it did, much that was contrary to what, both in teaching and practice, I had hitherto supposed to be settled law. Upon investigation, I be- came convinced that the questions raised by that opin- ion could be satisfactorily solved only by studying as a whole the history and present condition of the law governing restraints on the transfer of property, both voluntary and involuntary; and I determined that I would at some time collect the authorities for that pur- pose. The present essay is the result of this determi- nation, the carrying out of which has been delayed by other engagements until now. Begun for my own enlightenment, I pubhsh it as the first attempt, so far IV PREFACE. as I know, to deal systematically with the whole of a legal doctrine, whose development is, I venture to think, in danger of being marred by too exclnsive an attention to particular aspects. I should add, that the book was substantially written before the publi- cation of the decision of the Supreme Judicial Court of Massachusetts in Broadway Bank v. Adams, 133 Mass. 170. J. C. G. JULT, 1883. CONTENTS. BECTIONS INTRODUCTION 1-10 I. FOEFEITURE FOE ALIENATION. A. Estates in Feb Simple 11-74 B. Estates Tail 75-77 C. Estates foe Life 78-100 D. Estates foe Yeaes 101-103 II. RESTRAINT ON ALIENATION. A. Estates in Feb Simple 105-131 B. Estates Tail 132, 133 C. Estates foe Life 134-277 a D. Estates foe Yeaes 278, 278 a SUMMARY 279 APPENDIX I. Decisions undee the New Yoek Statutes 280-296 APPENDIX II 297-299 TABLE OP CASES. (the kefekences ake to the sections.) A. Ames v. Clarke 239 Amherst's Trusts 78 Anderson v. Briscoe 202 V. Gary 40, 43, 54 Andrews ■». Eoye 73, 74 V. Spurlin 23, 52 Annin v. Vandoren 65 Anon. (Brownl. 45) 75 (Dal. 58) 32, 35, 43 (Dyer, 6, 45, 66, 79, 152) 101 (Jenk. 243) 75 Apple V. Allen 275 Armitage v. Coates 129, 272 b Armstrong v. Kent 70 V. M'Alpine 53, 64 V. Pitts 170, 248 Arnolds. Gilbert 286 Arnsbyi). Woodward 101 Arton V. Hare 75 Arzbacher v. Mayer 296 Asb V. Bowen 276 Asblmrst v. Given 223, 226, 265 a Attorney-General u. Hall 68-70 Attorney-General of Victoria V. Ettershank 101 Attwater v. Attwater 36, 37, 43 Austin V. Cambridgeport Parish 42 Avery v. Payne 30 Bacon's Appeal Baggett V. Meuz 215, 216, 218 125 Bailie v. McWhorter 184 Baker v. Newton 47 Ballance v. Eankin 135 Bank of the State v. Forney 182 Barkers. Davis 28 Barnard v. Bailey 40 Barnes v. Rowley 83 Barnett's Appeal 218, 226 Barnett v. Blake 46, 78 Barton v. Barton 58, 62 !). Briscoe 149 Battle V. Petway 174 Baxter's Trusts 298 Bayley v. Bishop 84, 86 Beachcroft v. Broome 69, 70 Beaufort v. Collier 275 Bellows, Ke 254 Belmont v. O'Brien 282 Bennet, Ex parte 91 Bergin v. Sisters of St. Joseph 40 Best V. Conn 210 Billing V. "Welch 37, 43 Billson V. Crofts 78 Black V. Tyler 30 Blackstone Bank v. Davis 52, 113, 181 Blackwell, Den d. v. Black- well 40 Blanchard v. Taylor 202 Bland v. Williams 298 Blea.se v. Burgh 298 Boddam, Ex parte 91 Bolles V. State Trust Co. 172, 192 Bowes V. Goslett 68, 62 Bowser v. Colby 101 Boyd's Appeal 226 Bradley v. Peixoto 27, 47, 82 vm TABLE OF CASES. SECTION Braman v. Stilea 122, 123, 236, 240 6 Bramhall v. Ferris 78, 181, 291 Branch Bank v. Wilkins 171 Brandon v. Aston 78 V. Eobinson 79, 80, 134, 146, 149, 179, 181, 185, 193, 194, 238, 240 b, 252, 254 Brattle Sq. Church v. Grant 42 Brettle, Re 273 Bridge v. Ward 24, 134, 194 a Bridges v. Wilkins 275 Brigden v. Gill 240 Broadway Bank v, Adams 240 b, 240 d, 256-258, 265, 267, 268 a, 277 a Brooke v. Pearson 97 Brothers v. McCurdy 40 Brown v. Graves 174 V. Harris 181, 286 V. Pocock 149, 194 V. Williamson 226, 265 a Browne's Will 85 Bryan, Doe d. v. Bancks 101 Bryan v. Knickerhacker 180, 268 a, 290 Buckman v. Wolbert 233 Buckton V. Hay 272 d, 272 e Buford V. tJuthrie 54 Bull V. Kingston 68 Burbank v. Whitney 64 Bute V. Harman 298 Butler V. M'Cann 241 a CaiUaud v. Estwick 174 Campau v. Chene 23 Campbell v. Brannin 210 V. Foster 265(1, 286, 289, 293, 294 V. Low 285 Garleton v. Banks 171 Carradine v. Carradiue 28 Carter v. Carter 78 V. Doe d. Chaudron 42 Carver v. Bowles 272 a V. Peck 170 Casey's Trusts 91, 99 Caul'field v. Maguire 78 Chase v. Chase 240 Chomley v. Humble 75 Christy, Ex parte 254 V. Ogle 137 V. PuUiam 135 Churchill v. Marks 46, 49, 60 Glamorgan v. Lane 53 Clapp V. Ingraham 4 Clarke v. Windham 171 Clarke's Trusts 131 Gierke v. Chambers 91 Clute V. Bool 281, 285, 286, 290, 291, 294, 295 Cochran v. Paris 249 Godrington v. Foley 1 46 Coe's Trusts 106, 165 Coleman v. Coleman 30 Collins V. Glamorgan 53 V. Plummer 77 Collins Manuf. Co. v. Marcy 42 Commonwealth v. DuflSeld 219 Congregational Society 1). Stark 42 Cook, Re 254 Cook V. Kennerly 171 Cooke, Ex parte 92 Cooper V. Cooper 299 V. Laroche 272/ t>. Macdonald 126, 133 V. Wyatt 78 Corbet's Case 77 Goriielius v. Ivins 42 Gorr V. Corr 92 Cosby u. Ferguson 176,203,211 Coster -0. Lorillard 284, 285 Counden v. Clerke 59 Coutts V. Walker 249 Cowell V. Springs Co. 40, 42, 52 Craig V. Hone 291 Craven v. Brady 78 Crawford v. Lundy 23 Creighton v. Clifford 172 Cridland's Estate 231 a Croker v. Trevithin 75 Crompton w. Anthony 170 Croughton's Trusts 131 Cruger v. Cruger 286 V. Jones 282, 291 Cunynghame's Settlement 272 c, 272/ TABLE OF CASES. DC Curtis V. Luldn Cuthbert v. Furrier D. SECTION 108, \U 68 Daniel i>. Uply 33, 35, 43 Daniels v. Eldredge 116 Davenport v. Lacon 171 V. The Queen 101 Davidson v. Foley 145-147 V. Kemper 118, 210 Davies v. Fislier 298 Dawkius v. Penrhyn 77 Dawson v. Hearn 83 Day V. Day 85-88 Deering v. Tucker 23 Degraw v. Clason 181, 286, 291, 295 Dehorty v. Jones 23 Den d. Blackwell v. Black- well 40 Den d. Southard v. Central K. K. Co. 42 Den d. Trumhull v. Gibbons 40 De Peyster v. Clendining 286 V. Michael 25, 26, 42 Dick v. Pitchford 182 Dickinson w. Mort 272 a Dodson V. Ball 218, 276 Doe V. Hawke 27, 28 Doe d. Bryan v. Bancks 101 d. DoUey v. Ward 298 d. Gill ■». Pearson 35, 36, 41, 43 d. Hull V. Greenhill 174 d. Mclntyre v. Mclntyre 23 d. Mitchinson v. Carter 101 d. Nash V. Birch 101 d. Stevenson v. Glover 56, 60 62, 63, 74 Doebler's Appeal 23 Dolley, Doe d. ■». "Ward 298 Dommett v. Bedford 80 Donalds v. Plumb 195 Dorland v. Dorland 28, 113 Dorsett v. Dorsett 78 Doswell V. Anderson 243 Dougal V. Fryer 53 Downing v. Marshall 284 SECTION', Dred Scott Case 254 Durapor's Case 101 Durant v. Mass. Hosp. Life Ins. Co. 176, 266 E. Earls V. M' Alpine 53 Earp's Appeal 218 Easterly v. Keney 173, 177, 198, 199 Eastland v. Jordan 201, 211 Eastwick's Estate 276 Edgingtou's Trusts 78 Ellis's Trusts 127, 130, 131 Emei-y v. Van Syckel 78 Everett v. Stone 254 Everitt v. Everitt 286 Eyriok v. Hetrick 228, 235 Eyston, Ex parte 78 Farmer v. Francis 298 Farmers' Sav. Bank v. Brewer 197 Fears v. Brooks 275 Fellows V. Heermans 282 V. Tann 172 Fisher v. Dewerson 30 V. Taylor 171, 220, 265 a Flanders v. Clark 68 Floumoy v. Johnson 118, 176, 204, 211 Foley V. Bumell 146, 238 Force v. Brown 191 Ford V. Batley 83 Foster, Ex parte 254 ■V. Foster 176, 240 c Fowler v. Fowler 21, 134 Fox V. Fox 298 Foy V. Hynde 75, 76 Frazier v. Barnum 191 Freeman v. Bowen 78 French v. Old South Society 29, 42 Freyvogle v. Hughes 276 Fry V. Capper 272 5 Fulton V. Fulton 23, 28 TABLE OF CASES. G. Gallinger v. Farlinger 40, 43 Gamble v. Dabney 171 Gaskell's Trusts 129, 131 Genet v. Beekmau 291, 294 V. Foster 291, 293 Gifford V. Choate 72 Gill, Doe d. v. Pearson 35, 36, 41, 43 Gill II. Morgan 99 Gillis V. Bailey 42 Girard Ins. Co. v. Chambers 173, 227, 232 ' Gleason v. Fayerweather 23 Godden v. Crowhurst 157, 166, 176 Goring v. Warner 101 Gosling V. Gosling 111 Gott V. Cook 284-286, 295 Goyeau v. Great West. R. Co. 42 GtaSv. Bennett 181, 284, 286, 288, 290, 291, 293 Graham v. Lee 46 Grant v. Carpenter 23 Graves v. Dolphin 134, 149, 181 Gray v. Blanchard 23, 40, 42, 52 ■0. Obear 115 Greated v. Created 64 Green v. Harvey 58 V. Spicer 150, 180, 181 Greet v. Greet 298 Griffen v. Ford 295 Grout V. "Van Sohoonhoven 286 Guild V. Richards 42 Gulliver v. Vaux 59, 60, 61, 63, 72 H. 286 72 Hagerty v. Hagerty Hale V, Marsli Hall V. Cooper V. Williams 240, 240 b Hallett V. Thompson 181, 286, 291 Hamersley v. Smith 222, 276 Hann v. Van Voorhis 289 Hardenbursh v. Blair 191, 192 Harris i). Booker 174 V. Judd 268 V. Pugh 174 SECTION Harrison v. Grimwood 298 Hartley's Estate 218, 276 Haswell v. Haswell 78 Hatton u. May 88 Hauer v. Sheetz 54 Havens v. Healy 116, 181, 286 Hawley v. James 282, 284, 285, 295 V. Northampton 23 Heald v. Heald 175 Heath v. Bishop 183 Heermans v. Robertson 282 Henderson v. Cross 56, 58 V. Hill 171 Hendrick v. Robinson 174 Henning v. Harrison 23 Herbert «. Webster 272 «, 272/ Hexter v. Clifford 296 Higginson v. Kelly 92 Higinbotham v. Holme 91 Hill, Ex parte 91 V. Hill 54 V. Jones 30 V. McRae 176, 186, 188 Hinton, Ex parte 92 Hobbs V. Smith 172, 190, 278 Hodgson, Ex parte 92 Holdship®. Patterson 171, 219, 221, 226, 265 a Holingshed v. Alston 54 Holmes v. Godson 56, 59, 61, 62, 63, 72 ■u. Penney 163, 176, 268 6 Homer v. Shelton 72 Hone V. Van Schaiok 286 Hooberry v. Harding 189 b, 250 Hood V. Oglander 19, 55 Hooper v. Cunimings 42 Horner v. Chicago, &c. R. R. Co. 42 Hoyt V. Swift 173, 212 Hubbard v. Rawson 72, 74 Huber's Appeal 218 Hughes ■». Ellis 64 V. Palmer 101 Hull, Doe d. V. Greenhill 174 Hulme V. Tenant 270 Hunt V. AVi'ight 30 Hunt-Foulston v. Furber 89 Hutchins v. Hey wood 171 Hyde v. Woods 265 6 TABLE OF CASES. XI Ide I). Ide 67-69, 72 Indianapolis, &o. R. Co. v. Hood 42 loor V. Hodges 171 Ireland v. Ireland 181 J. Jackson v. Bull V. Delancy V. Groat ■V. Hobhouse 69, 70, 72 70 81 141, 269 V. Majoribanks 107 V. Robins 70, 72 V. Schutz 25, 26, 40, 52 V. Silvernail 81 V. Topping 42 Jacob's Will 297 Jarvis v. Babcock 285 Jauretche v. Proctor 23, 40, 52 Jeei;. Audley 272/ Jermine v. Arscot 75 Joel V. Mills 80 Johnson v. Conn. Bank 171 V. Hurley 189 V. Woodruff 191 V. Zane 246 JoUands v. Burdett 273 Jones's Will 27, 47 Jones V. Carter 101 V. Fort 172 V. Langhorne 202 V. Reese 176, 188 V. Salter 149 Josselyn v. Josselyn 107, 124, 163 Kane v. Gott Karker's Appeal Kay V. Scates Kearsley v. Woodcock Kempton v. Hallowell Kepple's Appeal Keyser's Appeal 286 71 215, 218 49, 50, 159, 176 170, 176, 184 23 115, 230, 257 SECTION Keyser v. Mitchell 232 Kiallmark ■». Kiallmark 48, 50 King's Estate 233 a King V. Burchell 26, 77 Kittredge v. Emerson 254 V. Warren 254 Knefler v. Shreve 209, 211 Knight 1). Browne 98,100 Knox V. Wells 298 Kuhn V. Newman 215, 218, 276 L. Lackland v. Smith 171, 193, 268 a Lamb v. Wragg 171 L'Amoureux v. Van laer Lancaster v. Dolan Landon's Trusts Lane v. Lane Lang V. Eopke Langdon v. Ingram Large's Case Lario v. Walker Lawe V. Hyde Leavitt v. Beirne 177, Leeming v. Sheratt Leggett v. Perkins Lester v. Garland Lewis V. Henry Lightburne v. Gill Lindsay v. Harrison Livingston v. Stickles Locke V. Mabbett Lockyer v. Savage Lord V. Bunn Loring v. Loring Lovett ». Gillender V. Kingsland Ludlow V. Bunbury V. N. Y. & If. R. R. Co. Luxon V. Wilgus Lynch v. Utica Ins. Co. 291, 292 219, 276 106 54, 299 295 53 46, 62 23 42 196, 199, 265 a 124 285, 286 91, 92 249 68 171, 194 26, 81 289, 293 78 158, 176 240 23, 28 23, 28 38, 44 H. 42 210 174 M. McBride v. Smyth 276 xu TABLE OF CASES. McCleary «. EUia 134,194 a. McCullough V. Gilmore 40 McDonald v. Waldgrove 70 McDonogh v. Murdoch 23 McDowell V. Brown 23 McEvoy V. Appleby 290 M'Gregor u Hall 171 M'llvaine v. Smith 171, 193, 268 a Mclntyre, Doe d. v. Mclntyre 23 McKelway v. Seymour 42 MoKenzle's Appeal 65 McKinster v. Smith 40 McKissick v. Pickle 42 M'Laurine v. Monroe 172 McMaster v. Morrison 23 M'Williaras v. Nisly 52 Machu, Re 22 Mackason's Appeal 226, 268 a Mackay, Ex parte 95 Macleay, Re 39, 41, 42, 43, 44, 51, 55 Magrath v. Morehead 112 Mainwaring v, Baxter 77 Mandlebaum v. McDonell 20, 48, 54, 113 Manning ■». Chambers 78 Mappin v. Mappin 298 Marbury ■». Madison 254 Markham v. Guerrant 242 Marston v. Carter 139 Martin v. Davis 175 V. Margham 78 Marvin v. Smith 282 Massey i). Parker 194, 274, 276 Mead v. Penn. Co. 226 Meaghan, Re 92 Mebane v. Mebane 116, 182 Megargee v. Faglee 276 Melson v. Doe 70 Metcalfti. Scholey 174 Michael's Trusts 272 e Mildraay's Case 75-77 Mildmay v. Mildmay 77 Miller v. Bingham 275 V. Miller 289, 291 Milroy v. Milroy 298 Minot V. Tappan 240 Mitchell V. Starbuck 30 Mitchinson, Doe d. o. Carter 101 Montefiore v. Behrens 78, 92 SECTION Moore v. Sanders 73 Mortlock's Trust C8 Moultou V. De ma Carty 291, 294 Moyses B. Little 143 ns Muggeridge's Trusts 78 Murphy, Ee 91 V. Abraham 91 Murray v. Addenbrook 298 Mnsohamp v. Bluet 34 N. Naglee's Appeal 23 Nash, Doe d. «. Birch 101 Nevvis V. Lark 75 Newkerk v. Newkerk 23 Nice's Appeal 216 Nichols V. Eaton 78, 205, 240 6 251-267, 289 D.Levy 189, 189 a, 250, 265 Nickell V. Handly 176, 245, 265 a Nix 1). Bradley 274, 275 Nixon V. Rose 247 Norris v. Johnston 225, 228, 235 Noyes v. Blakeman 285, 291, 292 o. O'Brien v. "Wetherell 42 Ogden's Appeal 218, 276 Oldham v. Oldham 78 Ontario Bank v. Root 174 Osgood V. Abbott 42 Overbagh v. Patrie 25, 26 Overman's Appeal 6, 234, 236, 240 d, 259 Oxley, Ex parte 91 V. Lane 54 P. Pace V. Pace 182 Pacific Bank v. Windram 240 c, 268 a, 277 a Page V. Way 155, 176 Palmer v. Craufurd 83 V. Stevens 238, 240 b TABLE OF CASES. XUl SECTION Pardue v. Givens 23 Parker v. Harrison 289 Payne, Ee 46 Pearson v. Dolman 49, 50, 80, 297 Peck V. Cardwell V. Jenness Peillon 1). Brooking Pennsylvania Co. v. Price Peunyman v. McGrogan People V. McKissick Perkins v. Dickinson ■0. Hays Perry v. Cross V. Merritt Phillips V. Eastwood V. Grayson Phipps V. Ennismore Pickering v. Coales V. Langdon Pierce v. Win Piei-cy v. Roberts 30 254 271 299 40, 53 42 176, 244 237, 240 b 72 66, 58 58 275 96-100 276 70 76 106, 151, 180, 181 42 77 205, 206, 265 a 75, 77 Plumb V. Tubbs Poole's Case Pope V. Elliott Portington's Case Power V. Hayne 87, 89 Presley v. Eodgers 174 Price V. School Directors 42 Pritchard v. Brown 171 Pnllen v. Paanhard 217 PuUiam v. Christy 136 Rippon V. Norton Rishtou V. Cobb Eoanes v. Archer Robert v. "West Roberts v. Davey V. Hall Robertson v. Johnston 154, 176 27, 47 171, 241 a 275 101 171, 212 176, 187 Robinson v. Wheelwright 271 Eochford v. Haokmau 24, 78, 80, 161 Rocke v. Eocke 109, 124 Roe V. Galliers 101, 103 V. Harrison 101 Roffey V. Bent 78 Rogers v. Ludlow 285, 291, 292 Rome Exchange Bank Eames Roosevelt v. Roosevelt V. Thurman Boss V. Ross Rowan V. Rowan Ruddall V. Miller Rudhall V. Milward Rugely V. Robinson Russell V. Grinnell 131, 284 282, 286 54 58 207 20 75 185 17 119, 120, 240 a, 240 b R. Eamsdell v. RamsdeU Rawlings v. Bailey Rea V. Cassel Rede v. Farr Eees V. Livingston Eeifsnyder v. Hunter Eenaud u. Tourangeau Rhoads v. Rhoads Rice V. Burnett Richardson v. Merrill Riddick v. Cahoon Rider v. Mason Ridley, Re 70 135 276 101 171, 226 23 47, 60 119, 124 171 30 65 286, 291, 295 272 d, 272 e Rife V. Geyer 216, 216, 218, 231, 240 a.! Samuel v. EUis V. Salter V. Samuel Sanderson's Trust Sanford v. Lackland Sarel, Re Saumarez v. Saumarez Saunders v. Vautier Schg.froth v. Ambs Schermerhom v. Negus Scott V. Gibbon V. Loraine V. Nevius 286, V. Scholey Sears v. Putnam Seers v. Hind Sevier v. Brown Shankland's Appeal Sharingtou v. Minors 116, 210 206, 211 46 164 52, 114, 250 a 128, 131 298 108, 124 275 23 171, 241 a 171, 241a 290, 291, 293, 294 174 299 101 65 229, 235, 265 a 75 ZIV TABLE OF CASES. SECTION Sharp V. Cosserat 78 Shaw V. Ford 63, 64, 66, 74 Shee V. Hale 78, 80, 89 Shute, Ex parte 92 Sillick i: Mason 290, 291, 294 Simonds «. Simonds 52 Slade V. Patten 299 Smith V. Bell 65 V. Clark 23, 30 «. Faught 40, 53, 55 V. Moore 117, 188 Snowdon v. Dales 152, 181 Snyder's Appeal 276 Snyder v. Snyder 276 Sonday's Case 77 Southard, Den d. v. Central E. R. Co. 42 Sparhawk v. Cloon 114, 120, 240 a, 240 b Spaulding v. Woodward 30 Spear i). Walkley 171 Sperry v. Pond 42 Spindle v. Shreve 267 Spittle V. Davie 76 Spring V, Pride 126 Springer v. Arundel 276 Staub V. Williams 189 Steuart v. Williams 28 Stevenson, Doe d. v. Glover 56, 60, 62, 63, 74 Stewart v. Barrow 53 V. Brady 53 V. McMartin 289, 295 Still V. Spear 226, 265 a Stock V. Stipe 42 Stokes V. Cheek 83 Stones V. Maney 54 Stringer's Estate 64 Stroud V. Norman 79 Sykes's Trusts 127, 131 Synge v. Synge 93, 95 T. Taaffe, Ex parte 91 Taltarum's Case 6, 168 Tatton V. Mollineux 77 Taylor v. Cedar Eapids, &e. R. R. Co. 42 V, Frobisher 298 SECTION Taylor v. Harwell 115, 116, 188 V. Mason 23 V. Shaw 77 Teague's Settlement 272 c Thompson v. Ford 174 Thornton v. Bright 272 a, 272 b Tillinghast v. Bradford 179, 254, 268 Tinkham v. Erie R. Co. 42 Titus V. Weeks 286 Tobey v. Moore 42 Tobias v. Ketchum 285 Towle V. Remsen 42 Townsend v. Early 78 Townshend v. Windham 4 Trumbull, Den d. v. Gibbons 40 TuUett V. Armstrong 142, 269, 274, 275 Turley v. Massengill 113, 189 a Turner v. Fowler 23 Twitty V. Camp 54 Twopeny v. Peyton 156, 166 u. Underbill v. Saratoga, &c. R. R. Co. 42 Upham V. Varney 171 Upwell V. Halsey 58 V. Vail V. Vail 286 Van Epps v. Van Epps 285 Van Rensselaer v. Dennison 20, 23 Vaux V. Parke 171, 224 Vere, Ex parte 93 Verner, Ex parte 92 Voris V. Eenshaw 54 W. Walker v. Vincent 23 Wallace v. Anderson 162, 176 V. McMicken 190 V. Smith 190 Ware v. Cann 19, 47, 55, 63 Warner v. Bennett 42 TABLE OF CASES. XV Watkins v. Williams Weale v. Ollive Weeks v. Weeks Weller v. Weller Wells V. Ely V. McCall Westoott V. Edmunds Wetmore v. Truslow Whitcomb v. Cardell White V. Thomas 177, V. White 121, Whitmore v. Mason Wilcocks's Settlement Wilkinson v. Wilkinson Williams's Appeal Williams, Ex parte V. Ash V. Bradley V. Jones V. Ijeach V. Eobinson V. Thorn Willis V. Hiscox Willson V. Cobley Wilson V. Greenwood SECTION 58, 257 58 139 173, 212 192 125, 276 215 284 212 208, 211, 240 a 172, 173, 177, 212 94 58, 62 80 218 95 28 240 171 23 40 286, 290 19, 55 298 94 BECTIOK Wilson V. Wilson 272 e Wolstenholme, Re 82 Woodmeston v. Walker 85, 149, 194 Woodworth v. Payne 42 Wylie V. White 172 Y. Yalden, Re 58 Yates V. Compton 83 ■u. Yates 83 Young, Ex parte 92 Young's Settlement 110 Younghusband u. Gisborne 160 Year Books. 33 Ass. pi. 11 19, 21 21 Hen. VI. 33 b, pi. 21 19, 20, 21 8 Hen. VII. 10 h, pi. 3 19, 20, 31 10 Hen. VII. 11 a, pi. 28 19 13 Hen. VII. 22, 23, pi. 9 19 21 Hen. VII. 8 a, pi. 6 19 21 Hen. VII. 11, 12 19 RESTRAINTS 01 ALIENATION § 1. Some rights are in their nature inalienable. Such are the rights not to be beaten, not to be slan- dered, not to be imprisoned. The right to recover damages for battery, for slander, for imprisonment, we can conceive of as transferable, but the original rights themselves are incommunicable. A man may, it is true, have a right that another person, his wife or ser- vant, shall not be beaten ; but this right is not the right of the wife or servant transferred to him. It is an independent right. § 2. There are other rights whose nature presents no obstacle to alienation, but of which the law, for one reason or another, forbids the transfer. Some, such as rights under ordinary contracts, though not assign- able at law, are assignable in equity ; but a transfer of others — such, for instance, as the right to recover damages for a libel — will not be recognized in either forum; and, again, a statute will sometimes forbid a transfer which common law or chancery would in its absence have allowed. Thus St. 54 Geo. III. (1814), c. 161, § 28, restrains the alienation of the estate set- tled by Parliament on the Duke of Wellington; and 1 2 RESTRAINTS ON ALIENATION. U. S. Eev. Sts. § 4745, avoids any assignment of a pension. § 3. With some exceptions, like the ones just noted, those rights which are by nature assignable may be transferred, if not at law, at least in equity. If there are any restraints on their free alienation, such re- straints are not imposed on them by public policy, but by the will of those persons who have created or trans- ferred them. It is proposed to consider how far such restraints can be lawfully imposed; in other words, under what limitations, if any, does the law say, "It is against public policy to allow restraints to be put upon transfers which public policy does not forbid." § 4. The current of law has for centuries been in favor of the removal of old restraints on alienation ; in favor of the disallowance of new ones ; and especially in favor of compelling a debtor to apply to his debts all property which he could use for himself or give at his pleasure to others. The legislatures and the courts have co-operated to this end. Family and ecclesias- tical pride, natural dishonesty, and narrow precedents, have been formidable obstacles to this movement, but its general success has been unmistakable. Thus, in the first place, land held in fee simple became alien- able (Digby, Hist. Law Eeal Prop., c. 2, § 7 ; c. 3, sect. 2, § 14) ; then the courts ruled that land granted to a man and the heirs of his body became freely alienable on the birth of issue (Preamble to St. De Donis, 13 Edw. I. c. 1); then came the Mortmain Acts, begin- RESTRAINTS ON ALIENATION. 3 ning with Magna Carta (1217), c. 43 ; then the St. Westm. II., 13 Edw. I. c. 18 (1285), enacted that land could be taken on elegit, for the payment of debts; then, by the St, "Westm. III., Quia Emptores, 18 Edw. I. c. 1 (1290), fines on alienation, except those from tenants in capite, were abolished, and subinfeudation done away with ; then the Sts. of Wills, 32 Hen. VIII. c. 1 (1540), and 34 & 35 Hen. VIII. c. 5 (1543), made land de- visable; then, by St. 32 Hen. VIII. c. 34 (1540), cove- nants and conditions annexed to estates for life or years were made to run for and against the assignees of such estates, and of the reversions ; then equity recognized choses in action as assignable; then came the Sts. 13 Eliz. c. 5 (1571), and 27 Eliz. c. 4 (1585), against fraud- ulent conveyances ; then the long series of Bankrupt Acts; then, by St. 12 Car. II. c. 24 (1660), the aboli- tion of military tenures and of fines to the Crown did away with the last restraints upon the transfer of es- tates in fee simple, either inter vivos or by will ; then the Statute of Frauds, 29 Car. II. c. 3, §§ 10-12 (1676), made trust estates subject to execution, and estates pur auter vie liable for the debts of deceased tenants ; then, by the St. 3 W. & M. c. 14 (1691), the remedy on lands was extended, so that an action lay against the devisees of an obligor; then came the recognition of the negotiability of commercial paper, with its nu- merous extensions in modern times to the bonds of rail- road and other corporations ; then the establishment of the rule against perpetuities; then the doctrine that general powers exercised for volunteers are assets for 4 EESTEAINTS ON ALIENATION. creditors, a doctrine very significant as showing the spirit which animates courts of equity ; Townshend v. Windham, 2 Ves. Sen. 1 ; Clapp v. Ingraliam, 126 Mass. 200 ; and finally the legislation in England of the present century, by which real estate of all kinds, including estates tail, may be sold for payment of debts. § 5. In America the course of events has been the same, though in several respects more rapid. Thus, land could be sold or set off on execution here, while in England the clumsy method of an elegit was still the only way in which a creditor could reach his debtor's real estate. § 6. Some eddies there have been at times in the stream. In the thirteenth century, for instance, estates tail were established, by the statute De Donis, to be inalienable estates ; and in modern times the courts of Pennsylvania have given effect to " spendthrift trusts," so called. But two hundred years after its passage the statute De Donis was substantially repealed by Tal- iarum's Case, 12 Edw. IV. 19, pi. 25, and already the Chief Justice of Pennsylvania has spoken of spendthrift trusts as contravening " that general policy which for- bids restraints on alienation and the non-payment of honest debts," and as being "tolerated," but not "ap- proved of," by the law. Overman's Appeal, 88 Pa. St. 276, 281. See § 234, post. § 7. Such errors as have arisen in discussing re- straints on alienation are largely due to the subject having been dealt with disconnectedly. If the restraint EESTEAINTS ON ALIENATION. 5 was in the form of a condition, it was treated with conditions. If it was in the form of a direction to a trustee, it was treated with trusts. Involuntary alien- ation, or hability for debts, has been considered without reference to voluntary transfers. It will be a gain to clear thought to bring the whole subject together. § 8. The rule against perpetuities is sometimes spoken of as aimed at restraints against alienation. In a sense this is true. Executory devises and other future interests, to limit which is the object of the rule, render an estate less marketable, and therefore the rule does, to this extent, favor alienation. But, speaking strictly, and as the expression is used here, a future interest is not a restraint on the alienation of an estate imless the contingency upon which the future interest depends is itself the alienation of the estate. The owner of an estate subject to a future interest can grant all that he has got, and the grantee has everything that the grantor would have had if the transfer had not been made. § 9. In every case of an alleged attempted restraint upon alienation two questions arise : 1. What restraint was it intended to impose? 2. Is the intended re- straint lawful? It is the second class of questions, viz. what restraints on alienation are lawful, which will be considered. The first class of questions, or questions of construction, will be spoken of only incidentally.^ 1 The cases in which these questions of construction present the most difficulty arise on limitations over of life interests upon aliena- b RESTRAINTS ON ALIENATION. § 10. Eestraints on alienation are sought to be effected in two ways : First. No attempt is made to attach any character of inalienability to the estate, but it is given either on condition that it shall not be alienated, or until it is alienated ; that is, it is subject either to a condition for breach of which the grantor may enter, or to a limitation which, upon alienation, puts an end to it without entry. The owner of the estate may assign it as he pleases ; he is not compelled to keep it against his will, but on assignment it is for- feited, or liable to forfeiture. Second. The estate may be declared inalienable. If this declaration is legally valid, then the holder of the estate cannot assign it; any attempted assignment is inoperative; the estate remains with him; he cannot rid himself of it. The subject will be considered under these two heads, and under each in turn will be taken up, — (1.) Estates in Fee Simple ; (2.) Estates Tail ; (3.) Estates for Life ; (4.) Estates for Years. In the 1st, 3d, and 4th, abso- lute interests, life interests, and interests for years in personal property, will be respectively included. There is no interest in personal property corresponding to an estate tail. tion, the doubt being whether involuntary alienation, such as bank- ruptcy, is intended by the language used. The learned reader will find the cases collected in 2 Jarm. "Wills (4th ed. ), 31-37. I. FOEFEITURE FOR ALIENATION. A. ESTATES IN FEE SIMPLE. § 11. The alienation against which the threat of for- feiture is made may be, (1.) alienation generally, i. e. to any one, at any time, under any circumstances ; or it may be alienation (2.) to certain persons ; or (3.) within a certain time ; or (4.) in a certain manner, as by mort- gage. Closely connected is (5.) the question whether an estate in fee simple can be forfeited for failure to alien- ate ; the shape in which this question arises in practice being that of a gift over of property, on the owner dying without having made a will. § 12. Upon the point of validity, it is immaterial whether the provision intended to terminate an estate is in the form of a condition or of a conditional limita- tion. As we shall see, it has been sometimes said that in a life estate there is a difference in this respect be- tween a condition and a limitation, (§§ 79-81-, post,) but no distinction has ever been suggested in the case of a fee. 8 RESTRAINTS ON ALIENATION. 1. Unqualified Alienation. § 13. In a fee simple a condition or conditional limitation against alienation generally is void. This is now past dispute. § 14. In the earliest times it is doubtful how far land was freely alienable. At the end of the twelfth century, it appears, from Glanville, that the holder of land could not ahenate the whole of it from his heir, but the lord of whom the land was held does not seem to have been considered as having any rights in the matter. Glanvillej lib. 7, o. 1 (Beames's ed.), pp. 137- 150 ; Digby, Hist. Law Eeal Prop., c. 2, § 6. § 15. In Magna Carta, c. 39 (1217), it is provided, " iJ'ullus liber homo de cetero det amplius alicui vel vendat de terra sua quam ut de residue terrae suae pos- sit sufficienter fieri domino feodi servitium ei debitum quod pertinet ad feodum illud." § 16. Bracton, who wrote in the reign of Henry III., says that the tenant can alienate the land at his pleas- ure, "nisi ad hoc specialiter agatur in possessione ne possit," recognizing the legality of restraints upon alien- ation. Bract., lib. 2, c. 19, fol. 45 ; Digby, Hist. Law Eeal Prop., c. 3, sect. 2, § 13. § 17. The statute of Quia Emptores, 18 Edw. I. c. 1 (1290), forbade subinfeudation, but gave full power to tenants to .ahenate their land at pleasure. § 18. Britton was written in the reign of Edward I., but after the statute of Quia Emptores, which is spoken of in hb. 3, c. 4, § 20, as " novele constitucioun." It is FOEFEITUEB FOK ALIENATION. 9 said (lib. 2, c. 8, § 6), " Sometimes a gift may be en- larged, sometimes restricted It may be restricted as follows In another way thus: 'to hold to him and his heirs without making alienation/ or ' with- out making alienation to such a one,' or ' except to such a one.' " See the note of the learned editor, Mr. Nichols, lib. 2, c. 5, § 2, that in the time of Britton the effect of the statute of Quia Emptores was not apparent. § 19. But in 33 Ass. pi. 11 (1359), Green, J. said that a condition not to alien upon a feoffment in fee was void; and in 21 Hen. VI. 33 6, pi. 21 (1443), Paston and Yelverton, JJ. agreed that such a condition was bad. In 8 Hen. VII. 10 h, pi. 3 (1493), Huse, C. J. and Fairfax, J. said the same. In 10 Hen. VII. 11 a, pi. 28 (1495), Sergeant Keeble said, arguendo,' th&t if a grant be made to a man in fee, leaving out the word "assigns," with a proviso that he does not alien, the condition is good, "quod fuit negatum per plurimos." And finaUy, in 13 Hen. VII. 22, 23, pi. 9 (1498), upon Sergeant Keeble attempting to argue that a condition on a fee simple not to alien was good, " Bryan, C. J. interrupted him, and said that they would not hear him argue this conceit, because it is simply contrary to com- mon learning, and is now, so to speak, a principle (m mannere un principal), because in this way we should transpose all our old precedents. Therefore speak no more of this point." And the matter has been at rest ever since. 21 Hen. VII. 8, 11, 12 ; Doct. & St., Dial. I. cc. 24, 29 ; Dial. II. c. 35 ; Lit. §§ 360, 361 ; Co. Lit. 206 b, 223 a. See Ware v. Cann, 10 B. & C. 433 ; 10 EESTRAINTS ON ALIENATION. Willis V. Eiscox, 4 Myl. & Cr. 197, 201, 202 ; Rood v. Oglander, 34 Beav. 513. § 20. The reason sometimes given for this prohibi- tion of conditions against alienation is that the statute of Quia Emptores, by putting an end to subinfeudation, did away with reversionary interests after a fee simple. This was the reason given by Yelverton, J., 21 Hen. VI. 33 6. So in 8 Hen. VII. 10 h, Huse, C. J. and Fairfax, J. said that a gift in tail or a lease for life might be made on condition not to alien, because there was a reversion, otherwise with a feoffment. In Buddall v. Miller, 1 Leon. 298, Sergeant Fleetwood, arguendo, said, " Before the statute of Quia Emptores Terrarum, if A. had enfeoffed B., upon condition that B. nor his heirs should alien, the same was a good condition (which was granted "per curiam)!' And thus Lord Coke : " So it is said that then [i. e. before the statute Quia Emptores] the lord might have restrained the alienation of his tenant by condition, because the lord had a possibility of reverter ; and so it is in the King's case at this day, because he may reserve a tenure to himself." Co. Lit. 223 a. And see Van Rensselaer v. Dennison, 35 N. Y. 393 ; Mandlebaum v. McDonell, 29 Mich. 78, 95. § 21. This reason serves to justify the distinction which undoubtedly exists between conditions against alienation attached to fees, and those attached to lesser estates. But, notwithstanding this, the absence of rever- sionary interest cannot be the real reason for the rule, for that would strike at the root, not only of unqualified conditions against alienation, but of qualified conditions FORFEITURE FOE ALIENATION. 11 against alienation, and indeed of all conditions on fees whatever.' Paston, J., 21 Hen. VI. 33, in opposition to Yelverton, points out that the presence or absence of a reversion cannot be the test of the validity of a condi- tion, and says that the reason for holding a condition invalid is " le inconveniencie " ; and so in 33 Ass. pi. 11, it is said that a condition on a fee not to alien would be bad, for it would be " discordant a la ley " that the tenant should have a fee, and yet could not alien. See 1 Sm. L. C. (7th Am. ed.) 101 ; 20 Am. Law Eeg. (n. s.) 185 et se,g. The rule seems not to allow nor call for any reason except public policy.^ § 22. In B& Machu, 21 Ch. D. 838, A. gave land by will to his daughter E. and her heirs, " subject, never- theless, to the proviso hereinafter contained for deter- mining her estate and interest on the event therein mentioned." The proviso was, that if E. should be declared p, bankrupt, or liquidate with her creditors, or avail herself of any act for the relief of insolvent debt- ors, then the devise to her should be void, and the premises devised to her should go to her children. Chitty, J. held that the proviso was void.^ ' The statement of Lord Coke, that a condition not to alien, attached to a grant in fee by the King, is valid, has been repeated. Shep. Touch. 130; Chitty, Prerog., 386, note A, 388; Fowler v. Fowler, 16 Ir. Ch. 507. But its sole support is a dictum of Vavasour, J., 21 Hen. VII. 8 a, pi. 6 (1506),and the reason given by him is not that suggested by Lord Coke, butbecause "every deed that the King makes shall be taken most beneficially for him." See 20 Am. Law Eeg. (n. s.) 188. 2 The learned judge considered that the proviso purported to create a condition, and not a conditional limitation. It certainly did not purport to create a condition, for upon a condition there can be no gift 12 EESTEAINTS ON ALIENATION. § 23. As in England, so in America, a condition, or a conditional limitation, restraining an owner in fee over to a third person ; none but the heir can take advantage of it. The term "conditional limitation" is used in two senses. In the sense in which it is generally employed by courts and writers, it is a generic term, comprising two species, (1.) shifting uses, and (2.) execu- tory devises, and is a proviso cutting short an estate previously cre- ated, and substituting another in its stead. This is the sense in which it is used in this essay. It is very convenient to have sucli a common term for shifting uses and executory devises ; hut, unfortunately, some writers have confused legal nomenclature by attempting to use it in another sense. With them it means a proviso operating to determine an estate by its intrinsic force, but not by itself substituting another. In a devise to A. and his heirs, but if A. dies unmarried then to B. and his licirs, the words in italics form a conditional limitation in the first sense ; while in a devise to A. so long as he remains unmarried, the words in italics form a conditional limitation in the second sense. A proviso of this latter kind is generally called a special limitation. Among the treatises in which the term " conditional limitation " is used in the first sense are, Fearne, Cont. Rem. 14, 15 ; Butler, notes to Fearne, Cont. Eem. 381 ; Smith, Executory Interests, § 149 ; 3 Prest. Abs. 284 ; Williams on Settlements, 21 ; 2 Cruise, Dig. S15 ; 4 Kent, Coram. 249, 250. See Gilbert, Uses (Sugd. ed.), 178, note. Those in which it is used in the second sense are, 1 Sand. Uses, 150, 151 ; 1 Steph. Comm. (8th ed. ) 295, note (k) ; 1 Leake, Land Law, 216, note (a) ; Tud. L. C. on Eeal Prop. (3d ed.) 347, 348. In Re Machu, the gift certainly purported to be a conditional limit- ation in the usual sense. In the second sense of the term, the sounder opinion seems to be that a fee simple cannot have a conditional limita- tion. See 1 Leake, Land Law, 36, note {d). Chitty, J. left undecided the question whether a fee could have a conditional limitation in this sense at all. P. 843. He seemed to think that, if a conditional limita- tion in this sense could exist at all, the validity of such a limitation conditioned on bankruptcy was arguable, although apparently his incli- nation was against it. P. 842. But it is submitted, that there can be no rational distinction between restraining the alienation of a fee by a. conditional limitation in the usual sense, and restraining it by a condi- tional limitation in the second sense, — that is, by a special limitation, — even if a fee can be created with any special limitation at all, which, as has been said, it probably cannot. See §§ 79, 80, infra. FOEFEITUEE FOE ALIENATION. 13 simple from selling his land, is bad. H&nning v. Har- rison, 13 Bush, 723. Smith v. Clark, 10 Md. 186. Gleason v. Fayerweather, 4 Gray, 348. Campau v. Chene, 1 Mich. 400. McDowell v. Brown, 21 Mo. 57. Par due v. Gfivens, 1 Jones, Eq. 306. Schermerliorn v. Negus, 1 Denio, 448. Lovett v. Kingsland, 44 Barb. 560 ; s. 0. sub nom. Zoy«<^ v. Gillender, 35 N. Y. 617. Walker V. Vincent, 19 Pa. St. 369. Williams v. Leach, 28 Pa. St. 89. Naglee's App., 33 Pa. St. 89. Jauretche v. Proc- i!or, 48 Pa. St. 466. Zep^pZe's ^jj^'-. 53 Pa. St. 211. Lario v. Walker, 28 Grant, 216. These cases are decis- ions directly in point, and dicta to the same effect are found in abundance ; e. g. in Taylor v. Mason, 9 Wheat. 325, 350; McDonogh v. Murdoch, 15 How. 367, 412; Andreivs v. Spurlin, 35 Ind. 262, 268 ; Deering v. Tucker, 55 Me. 284, 289; ffawley v. Northam-pton, 8 Mass. 3, 37 ; Gray v. Blanchard, 8 Pick. 284, 289 ; Fan. Rensselaer v. Dennison, 35 N. Y. 393 ; Turner v. Fowler, 10 Watts, 325; Beifsnyder v. Hunter, 19, Pa. St. 41; Doebler's App., 64 Pa. St. 9 ; Grant v. Carpenter, 8 E. I. 36 ; Z>o« d. Mclntijre v. Mclntyre, 7 U. G. Q. B. 156 ; McMaster v. Morrison, 14 Grant, 138, 141 ; Crawford v. ZzmcZw, 23 Grant, 244, 250 ; PtiZtow y. PViton,, 24 Grant, 422. See Dehorty v. t/b^es, 2 Harrington (Del), 56, note; Ncwkerk v. Newkerk, 2 Caines, 345. § 24. The only suggestion to the contrary is a remark in Bridge v. Ward, 85 Wis. 687. In this case a testa- tor devised to his son a life estate in land, and restricted him from selling it. It was held that the son's interest could be sold on execution against him. The court 14 EESTRAINTS ON ALIENATION. say, "It is quite probable that the will might have been so framed that an alienation of the plaintiff's in- terest," either voluntary or involuntary, " would deter- mine his estate." They cite a passage from Eedfield on Wills to that effect, and then add: "And again he [Eedfield] states as a rule, 'that either a life or an absolute estate by bequest may be legally so framed as to cease upon the happening of a particular event.'" The passage cited from Eedfield is in the second volume (3d ed.), p. 289. He is giving the propositions to be deduced from the opinion of Turner, V. C, in Bochford V. Hachnan, 9 Hare, 475, and says they are : " (1.) That property cannot be given either for life or absolutely, without the power of alienation being incident to the gift. (2.) That either a life or an absolute estate by bequest may be legally so framed as to cease upon the happening of a particular event." It might seem from the context that it was intended to imply that an abso- lute estate might be made to cease upon the happening of an attempt at alienation, but the learned commenta- tor does not say so, and it is perhaps unnecessary to remark that no semblance of such an idea is to be found in Rocliford v. Hackman. § 25. In King v. Burclull, Amb. 379, a provision that an estate tail should be charged with a sum of money on its alienation was held void, and a like con- dition on a fee simple has been held bad in New York. Be Pcyster v. Michael, 6 N. Y. 467 ; Overbar/h v. Patrie, 8 Barb. 28 ; s. c. 6 K Y 510, overruling the dicta of Piatt, J. in Jackson v. Schutz, 18 Johns. 174, 184^187, FOEFEITUEE FOE ALIENATION. 15 and Nelson, 0. J. in Livingston v. SUcJdcs, 7 Hill, 253, 257. The question would doubtless everywhere meet a like decision. § 26. In Jackson v. Schutz, ubi sup., it was held that a condition on a grant in fee not to sell without offer- ing to the grantor was good, and this has been approved in Overbagh v. Patrie, 8 Barb. 28, 34, and Be Peyster V. Michael, 6 K Y. 467, 491; but perhaps the desire not to utterly demolish Jackson v. Schutz may have prompted the approval. Such a condition, if good, would greatly clog the conveyance of land. The ques- tion deserves careful reconsideration. § 27. A condition or conditional limitation on alien- ation attached to a transfer of the entire interest iu personalty, is as void as if attached to a fee simple ia land. Co. Lit., 223 a ; Bradley v. Peixoto, 3 Ves. Jr. 324; Bishton v. Gobi, 5 Myl. & Cr. 145; Be Jones's Will, 23 L. T. K S. 211. This is as true of chattels real as of chattels personal. Therefore, although, as we shall see, (§§ 101, 102, post), in a lease for years the lessor can impose a condition against alienation upon the lessee, the lessee upon making an assignment can- not impose such a condition upon his assignee, for the lessee is transferring his whole interest, while the les- sor is not. Co. Lit. 223 a. Such a condition upon an assignment of a lease seems to have been held good in Doe v. Haivke, 2 East, 481, without any objection occurring to either court or counsel. The only point discussed was whether the condition was broken: its validity was assumed. But, it is submitted, this de- 16 EESTEAINTS ON ALIENATION. cision cannot be supported. Chattels real and chattels personal stand alike, and Lord Coke expressly says that conditions against alienation are void with one equally as with the other. § 28. So in America an absolute interest in person- alty cannot have a condition against alienation attached to it. Lovett V. Kingsland, 44 Barb. 560 ; S. C. sub nom. Lovett V. Gillender, 35 N". Y. 617. Barker v. Davis, 12 U. C. C. P. 344. And see Borland v. Borland, 2 Barb. 63 ; Fulton v. Fulton, 24 Grant, 422 ; Carradine v. Carradine, 33 Miss. 698. In Williams v. AsTi, 1 How. 1, male and female slaves were bequeathed to A., pro- vided he should not sell them, in which case they should be free. A. sold a male slave. Held, that he was free. Taney, C. J., in giving the judgment of the court, said : " If, instead of giving freedom to the slave, he had been bequeathed to some third person, in the event of his being sold, .... it is evident, upon com- mon law principles, that the limitation over would have been good. 2 East, 481." The case cited is Boe v. Rawke, where, as is stated in the preceding section, the court seem to have overlooked the distinction between a condition against alienation attached to an estate for years in its creation, which is good, and such a condi- tion attached to the transfer of an estate for years when created, which is bad. In Steuart v. Williams, 3 Md. 415, Williams v. Ash is said to have established the law in Maryland. The prohibition against selling was, it would seem, confined to the life of the devisee; it was certainly confined to the life of the male slave. As FORFEITUKE FOR ALIENATION. 17 to whether it could be sustained as confined to a limited time, see §§ 45 et seq., post ; but unless on such ground, the decision, it is submitted, can be supported only as made infamrem, libertatis. § 29. It was held, in French v. Old South Society, 106 Mass. 479, that a pew in a church in Boston, where pews are personalty, was a peculiar species of property, and might be laid under restrictions against alienation. See § 42, note, post. § 30. A covenant to hold lauds iu common, or a condition that they shall not be subject to partition, has been held a bar to a petition for partition. JIunt V. Wright, 47 K H. 396. Coleman v. Coleman, 19 Pa. St. 100. Avery v. Payne, 12 Mich. 540. So a direction in a devise to two women, that the land devised should be kept together until one of them married. Hill v. Jones, 65 Ala. 214. See Peck v. Cardwell, 2 Beav. 137. In Hunt V. Wright it was said that such a condition does not render the undivided shares inalienable, and that it could not be repugnant to the estate, because at com- mon law tenants in common could not be compelled to make partition (Lit. § 318), the right to compel parti- tion being first given to them by St. 31 Hen. VIII. c. 1. In Mitchell v. Starhuck, 10 Mass. 5, 11, it was ruled that a plea of a prescription not to part was bad, such prescription being against the law, inasmuch as it was " essential to an estate in common to be subject to partition"; and in Black v. Tyler, 1 Pick. 150, it was ruled that an agreement to hold in common, not under seal, was no bar to a petition for partition, though per- 2 18 EESTEAINTS ON ALIENATION. haps there might be a remedy in equity. See Fisher v. Dewerson, 3 Met. 544 ; S-paidding v. Woodward, 53 N. H. 573 ; RicKardson v. Merrill, 21 Me. 47 ; Smith v. Clark, 10 Md. 186 ; and § 64, ^oost. Whatever the true doc- trine may be, a proliibition against partition is not a restraint on alienation, as the undivided share is always assignable, and therefore it is only spoken of here inci- dentally. 2. Alienations qualified as to Persons. § 31. In 8 Hen. VII. 10 b, pi. 23, Huse, C. J., and Fairfax, J., said that a condition not to alien to a partic- ular person vras good. Littleton, § 361, says, "If the condition be such that the feoffee shall not alien to such a one, naming his name, or to any of his heirs, or of the issues of such a one, &c , or the like, which conditions do not take away all power of alienation from the feoffee, &c., then such condition is good." See Doct. & Stud., Dial. II. c. 35 ; Shep. Touch. 129. § 32. In 1561, according to a short note. Anon., Dalison, 58, pi. 5, there was a devise of land to the testator's widow " to dispose and employ it on herself and on her son at her will and pleasure," and it was held in the Common Pleas, by Dyer, C. J., and "Weston & Walsh, JJ., that she took a fee, and not a life estate ; and Dyer, C. J., and Walsh, J., held that it was a fee on condition, "so that she could not grant the land to a stranger, but could hold it or give it to one of her sons." Whether the point was material, or the validity of the devise questioned, does not appear. FOEFEITUEE FOR ALIENATION. 19 § 33. In Daniel v. Upbj, Latch, 9, 39, 134 ; s. c. Wm. Jones, 137; there was a devise of a house to the testator's widow, " to dispose at her will and pleasure, and to give it to any of my sons which she pleases." She conveyed it to X., one of the testator's sons. It was held by the Court of King's Bench that X. had a good title. Two of the judges thought that the widow took a life estate with power of conveying in fee, and the other two thought that she took a fee simple on condition that she should not alien except to the sons. As the condition was not broken, (even if we agree with the latter two judges that there was a condition,) there was no occasion to question its validity ; and nothing is said about it. § 34. Sergeant Bridgman, in his argument in Mus- champ V. Muet, J. Bridg. 132, 137, contends that a condition upon a devise to the testator's younger son, that he shall not alien except to his elder brother, is void.^ § 35. The question does not seem to have come up for decision until Doe d. Gill v. Pearson, 6 East, 173 (1805). In that case there was a devise to two of the testator's daughters, Ann and Hannah, to hold to them, their heirs and assigns, as tenants in common, "upon this specific proviso and condition, that in case my said daughters, or either of them, shall have no lawful issue, that then and in such case they or she having no lawful issue as aforesaid shall have no power to disT ^ This is not the decision of the court, as stated in 2 Tarm. Wills (4th ed. ), 17, but only the contention of the learned Sergeant. 20 RESTRAINTS ON ALIENATION. pose of her share in the said estates so above given to them, except to her sister or sisters, or to their chUdren." Ann levied a fine of her share. Held, that the testator's heirs could enter for breach of the condition. Lord EUenborough, in giving judgment, relied on the note in Dalison, 58, and on Daniel v. Uply, uhi supra. § 36. In Attwater v. Attwater, 18 Beav. 330, there was a devise of land to the testator's nephew, " with an injunction never to sell it out of the family ; but, if sold at all, it must be to one of his brothers hereafter named," of whom there were five. Lord Eomilly, M. R., declined to follow Doe v. Pearson, and held that the clause was simply inoperative. § 37. In Billing v. Welch, I. R 6 C. L. 88, a cove- nant by the grantee of land that he, his heirs and as- signs, would not alien, sell, or assign to any one except his or their child or children, without the license of the grantor, and reserving a penal rent for its breach, was held repugnant to a fee simple, Attwater v. Attwater being approved. § 38. In Ludlow v. Bunbury, 35 Beav. 36, property, real and personal, in the hands of trustees, was ap- pointed to A. and his heirs, but upon condition that in case B. or his wife, or any descendant of either of them, should, by any conveyance executed by A., be- come interested in the property, then the interest of A. should cease. The trustees filed a bill for instructions whether they could safely convey to A. The Master of the Rolls (Sir John Romilly) ordered a conveyance. FOKFEITUEE FOK ALIENATION. 21 holding that the condition was void. There is no opinion, and there was no opposition. § 39. In re, Madeay, L. E. 20 Eq. 186. Here a devise of land to the testator's brother, " on the condition that he never sells it out of the family," was held by Sir George Jessel, M. E., to be valid. § 40. In America it has been often said that a con- dition not to alien to particular persons is good. Cowell v. Springs Co. 100 U. S. 55, 57. Jackson v. Schutz, 18 Johns. 174, 184. Gray v. Blanchard, 8 Pick. 284, 289. Jauretclie v. Proctor, 48 Pa. St. 466, 472. In Anderson V. Gary, 36 Ohio St. 506, and Gallinger v. Fcorlinger, 6 U. C. C. P. 512, conditions not to alien except to the devisee's brother or brothers were held bad ; but it seems to have been the opinion of the Court in Ben d. Blackwell v. Blackwdl, 3 Green, 386, 389, 392, and Pennyman v. McGrogan, 18 U. 0. C P. 132, that such a condition was good. And see Smith v. FaugM, 45 U. C. Q. B. 484, 488. In McGullough v. Gilmore, 11 Pa. St. 370, a prohibition not to leave devised land to any but the heirs of the devisee's father's family was held void for uncertainty; and the court said that a condition not to devise except to the grantee's heirs would be bad. In Barnard v. Bailey, 2 Harrington (Del), 56, it was declared that a condition in a devise that the devisee should not dispose of the property by will to the blood kin of either the testator or the devi- see, was bad. In Brothers v. McCurdy, 36 Pa. St. 407, a testator directed that land devised should not be sold for the purpose of making brick, and that, if the devl- 22 EESTEAINTS ON ALIENATION. see should offer to sell it for such purpose, it should go over. The devisee sold the land for the making of brick. Held, that the condition was void for uncer- tainty. See also Williams v. Bobin&on, 16 Conn, 517 ; McKinster v. Smith, 27 Conn. 628 ; Den d. Trumbull v. Gibbons, 2 Zabr. 117, 154, 155 ; Bergin v. Sisters of St. Joseph, 22 U. C. Q. B. 204. § 41. The authorities, it will be seen, are in hopeless confiict. The rule which naturally suggests itself is that a condition is good if it allows of alienation to all the world with the exception of selected individuals or classes ; but is bad if it allows of alienation only to selected individuals or classes. Perhaps this rule might be difficult of application, or easily evaded. At any rate the leading case of Doe v. Pearson and the latest case of In re Macleay cannot be brought within it, for they both allow the power of alienation to be restrained within the narrowest limits; and Sir G-eorge Jessel says, "The test is whether the condition takes away the whole power of alienation substantially." L. E. 20 Eq. 189. § 42. In England the evil from such provisions is greatly mitigated by applying to them the rule against perpetuities, to which conditions as well as con- ditional limitations are subject. In In re Macleay, the provision against alienation was a condition, and Jes- sel, M. R., said, " Of course, if unlimited as to time, it would be void for remoteness." L. E. 20 Eq. 186, 187, 188, 190. In America this mitigation is to a great extent impossible, for such provisions are generally in FOEFEITUEK FOR ALIENATION. 23 the form of conditions, and conditions have been re- garded in this country as not subject to the rule against perpetuities.^ § 43. Laying aside the rule against perpetuities, there are tlien two tests: — (1.) The one suggested in 1 There is no reason in the liistory of the law, or in its principles, why the rule against perpetuities should not he applied to conditions. The reason sometimes given for applying it to an executory devise and not to a condition, that the former cannot be released, while the latter can be, is unsound, for an executory devise to A. and his heirs may always be released by A., and yet is unquestionably within the rule. The practical inconvenience of not applying the rule to conditions is great, especially in America, where all a man's children are his heirs, and where, in a generation after his death, his heirs may be half a hundred or more in number, and scattered all over the continent. Since the establishment of the rule, there has been, it is believed, not one case in England where a condition exposing to a forfeiture has been sustained when it violated the rule. And there is the statement of Jessel, M. K. , quoted in the text, that "of course" a, condition might be bad for remoteness. There is but one case in America where the court have considered the objection of remoteness to a condition and have rejected it, and that was in the case of the right to a pew, which was held inalienable, and to which, therefore, as in the case of charities, the rule does not apply. French v. Old South Society, 106 Mass. 479. See § 29, ante. But, notwithstanding all this, there have been many cases in Amer- ica where conditions obnoxious to the rule against perpetuities have been sustained ; and though they have been upheld without appar- ently the objection of remoteness occurring to either court or counsel, they now form a body of precedents which it would take some courage to overthrow. These cases are Cowell v. Springs Co. 100 U. S. 55 ; Carter v. Doe d. Cliaudron, 21 Ala. 72 ; Stock v. Stipe, 12 Ind. 74 ; Indianapolis, eal, 88 Pa. St. 276, 281, § 234, ante. 172 RESTRAINTS ON ALIENATION. remainderman, the testator intending that the trustee should give, and the trustee in fact giving, the whole income to A., and yet no creditor of A. being able to reach it ; and it may be urged that a rule of law which can be so readily evaded is not worth preserving, and in fact that it is derogatory to the courts to announce a rule of law, and yet at the same time declare them- selves unable to prevent its obvious and easy evasion. There is weight in this argument. § 261. But, in the first place, the evasion is not so easy. Many a testator will hesitate about giving trustees an uncontrolled power to give the income en- tirely away from the only person he desires to benefit; and, if the trustees cannot give the income entirely away from such person, then such person has rights, and his rights his creditors can reach. But, again, there are many cases where an msolvent man enjoys the benefit of wealth which is not liable for his debts, and there is not felt to be any scandal upon public justice. A rich father supports an insolvent son, and no one supposes that a creditor of the son has any legal claim against the father. One may think that the father would make a better use of money by paying the debts of the son, than by supporting him in idleness ; but no one has ever suggested that the law should interfere. Yet, if the money used for the support of the son was paid to him, his creditors could take it. Why is it felt to be no discredit upon courts of justice that they are foiled by this distinction ? Simply be- cause the son has no rights in the matter. The court EESTEAINTS ON ALIEKATION. 173 may feel perfectly sure that the father will use the property for the benefit of the son ; but such use is voluntary. And if the son has no legal demand on the father, the creditors of the son, who claim under him, can have no demand either. Now it is possible for the father to continue this state of things by substituting some one in his place, by deed or wiU, who may con- tinue this same voluntary action ; he may appoint a trustee with discretion whether to pay to the son or not, and the son's creditors are in the same position that they were in during the father's lifetime. But if the trustee has not this discretion whether to pay or not, then the son has rights, and therefore his creditors have rights. If a man resolves to keep a child after his death dependent for income on the absolute discretion of an individual, he can do it ; he is not bound to give the child any rights, and law and morals are not con- cerned in the question. But it is submitted that law and morals are concerned in upholding the doctrine that a man's rights of property should be used to pay his debts. To say whether a man has rights, is often difficult, but there is and ought to be no difficulty in saying that his rights, whatever they are, are alienable, and can be reached by his creditors. See § 167, ante. § 262. The most singular thing in the opinion in Nichols V. Eaton is the theory that these " spendthrift trusts " are something American (p. 725), and that the subjection of equitable life interests to creditors is Eng- lish and un-American. Unless the payment of debts be considered un-American, it is hard to see the Ameri- 174 EESTEAINTS ON ALIENATION. canism of spendthrift trusts. That grown men should be kept all their lives in pupilage, that men not paying their debts should live in luxury on inherited wealth, are doctrines as undemocratic as can well be conceived. They are suited to the times in which the Statute De Donis was enacted and the law was administered in the interest of rich and powerful families. The general in- troduction of spendthrift trusts would be to form a privileged class, who could indulge in every specula- tion, could practise every fraud, and, provided they kept on the safe side of the criminal law, could yet roll in wealth. They would be an aristocracy, though certainly the most contemptible aristocracy with which a country was ever cursed. § 263. The American character of these trusts is de- duced by the learned judge in Nichols v. Eaton from the analogy of the statutes exempting property from exe- cution which prevail in most of the States. But the analogy is fallacious. The object of the exemption laws is to save poor men from being pushed to the wall. They are to be supported on the theory that a man is more likely to be a useful member of society, and to pay his debts, if he is not deprived of his tools, or of a bare subsistence. The object of spendthrift trusts is to ena- ble the children of rich men to live in debt and in luxury at the same time. The cestui que trust of a spend- thrift trust is not likely to become a valuable citizen. § 263 a. None have more reason to regard this new doctrine with dislike than those persons who have accumulated or inherited property. There is much and EESTEAINTS ON ALIENATION. 175 growing jealousy of wealth. The general introduction of these spendthrift trusts would greatly and justly inflame it. Some particularly impudent defiance of his creditors by an insolvent millionnaire would attract attention; the legislatures would be sure to interfere, and to sweeping and clumsy statutes would pass the control over these trusts, which the courts of equity should never have given up. § 264. The divergence of opinion on the subject arises from there being two different views of morality and policy. According to one view, morality requires that a man should use, and the public weal requires that he should be compelled to use, all his rights of property to pay his debts, in preference to using them for his own pleasure or profit. According to the other view, it is consistent with morality for a man to take and enjoy, and consistent with the public weal to allow him to take and enjoy, rights of property for his pleasure and profit, and to leave his debts unpaid, provided the person giving him those rights has declared that they shall not be subject to debts. § 265. If the former doctrine cannot literally be said to have been received, semper, uhique et ab omnibus, the exceptions were insignificant (see § 213, a7ite) until the courts of Pennsylvania gradually slid into the latter doctrine; and, however much some of the judges in that State may regret the new departure, it is now probably too late for them to return to the old road. §§ 234, 235, ante. In 1866 the Supreme Court of the United States expressed its approval of the former 176 EESTEAINTS ON ALIENATION. view; Nichols v. Levy, 5 Wallace, 433, 441, § 250, ante; but in 1875 it gave its adhesion to the-- latter. Nicliols V. Ectton, 91 U. S. 716. The Supreme Court of Massachusetts has now also based a decision on the latter view. Broadway Bank v. Adams, 133 Mass. 170, § 240 6, ante. It has been a main object of these pages to show that authority is overwhelmingly in favor of the former view. It is submitted that the ethics and policy of the latter are not so clearly preferable as to require a departure from that authority. § 265 a. In support of his view in Nichols v. Eaton, Judge Miller cites the Pennsylvania cases, Fisher v. Taylor, 2 Eawle, 33, § 220, ante ; Iloldship v. Patterson, 7 Watts, 547, § 221, cmte ; Ashhurst v. Given, 5 W. & S. 323, § 223, ante ; Brown v. Williamson, 36 Pa. St. 338, and Still v. Spear, 45 Pa. St. 168, § 226, ante; Shank- land's Appeal, 47 Pa. St. 113, § 229, ante; Nichell v. Eandly, 10 Grat. 336, § 245, ante ; Pope v. Elliott, 8 B. Monr. 56, § 205, ante; and Leavitt v. Beirnc, 21 Conn. 1, § 196, ante; and he refers, finally, to Campbell v. Foster, 35 N. Y. 361, § 289, post. But the doctruie of Campbell v. Foster has been overruled in New York. See § 290, post. Nichols v. Eaton is well criticised in 10 Am. L. Rev. 591 ct seq. § 265 b. In Hyde v. Woods, 94 U. S. 523, apropos of the validity of a by-law of the San Francisco Stock Exchange, that the proceeds of the sale of a delinquent member's seat should be first applied to debts due the board. Judge Miller states his continued approval of Nichols v. Eaton, EESTEAINTS ON ALIENATION. 177 § 266. Bur ant v. Mass. Hospital Ins. Co., 2 Lowell, 575. A trust company declared that they would hold $10,000 in trust to pay the income to S. for life, upon his separate receipt, to be applied to the support of S. and of his wife, and the education and support of their children, which annuity and principal sum were both declared to be inalienable by S., and not subject to his debts or control. S. became bankrupt. His assignees brought a bill against the company, ask- ing that the annuity might be assigned to them. The court, Lowell, J., held that S. had a full discretion how to dispose of the income, and said, if he became unfit, that a new trustee could be appointed, and such new trustee would have a full discretion in the appropri- ation of the income. The judge continues : " If this is not so, but the bankrupt is entitled to some part of this income, yet I think it impossible for any court to say what that part is, for the reason that it may be a constantly varying quantity, and that it would be both impracticable and unjust for me to undertake to decree to the assignee an interest for the life of the bankrupt in any such aliquot part. It is plain that, if I cannot do that, I cannot give him anything which will be of value to the creditors. No doubt this amounts to say- ing that the bankrupt will have some benefit from the trust ; but this is the actual result of the English decisions concerning discretionary trusts, which is ap- proved and followed in Nichols v. Eaton. This effect is pointed out by Mr. Eobson in his work on Bankruptcy (3d ed.), 396 ; and I do not see how a court can prevent 12 178 RESTRAINTS ON ALIENATION. it. The case is a hard one for the creditors." On the separableness of the interests of cestuis que trust, see § 176, ante. § 267. S-pindle v. Shreve, 9 Biss. 199 ; s. c, 4 Fed. Eep. 136 (Circuit Court North. Dist. 111.). Devise in Kentucky of land in Illinois to a trustee for the use and benefit of A. during his life, and then to descend to his heirs, without any power or right on A.'s part to encumber the estate, or anticipate the rents, the trustee to pay the rents to A. quarterly. Held, that A.'s inter- est did not pass to his assignees in bankruptcy. The opinion is based on the dicta in Nieliols v. Eaton, and carries them to their logical conclusion. Here A. was entitled to the rents, the trustee had no discretion as to the time or mode of payment, and yet A. was not obliged to use them to pay his debts. That this decision is the logical conclusion of the dicta in Nichols v. Eaton is perhaps one of tlie best criticisms that can be made on them. Tliis case had no parallel at the time of its decision ; but the Supreme Court of Massachusetts has now gone to the same length in Broadway Bank v. Adams, 133 Mass. 170, § 240 h, ante. § 268. Sandwich Islands. — Finally, the law in the Sandwich Islands agrees with that generally laid down in England and America. In Harris v. Jiidd, 3 Ha- waii, 421, a testator devised to 0. realty and personalty, " the income of the same to be paid to him by my ex- ecutor for his use and support for the term of his life, and after the death of 0." he devised the property to O.'s heirs. Held, by the Supreme Court (Allen, C. J. dissenting), that O.'s interest was assignable. EESTEAINTS ON ALIENATION. 179 § 268 a. A clause forbidding alienation being invalid in a settlement upon others, it is a fortiori iavalid in a settlement upon the settlor himself. See §§ 91-95, ante. And even where, as in Massachusetts, a clause against anticipation has been held good in a devise of a life estate {Broadway Bank v. Adams, 133 Mass. 170, § 240 h, ante), it has been held bad ia a conveyance of property to a trustee in trust to pay the income to the settlor for life, " upon lier sole and separate order or re- ceipt, the same not to be by way of anticipation," with a gift over, and this even though the settlor was a mar- ried woman. Pacific Bank v. JVindram, 133 Mass. 175, § 277 a, post. Bryan v. Knickerhacker, 1 Barb. Ch. 409, § 180, ante. Mcllvaine v. Smith, 42 Mo. 45, and Lack- land\. Smith, 5 Mo. App. 153, § 193, ante. Mackason's Appeal, 42 Pa. St. 330, § 226, ante. § 268 6. C. gave a life interest which he possessed to trustees in trust during his life, to pay, apply, lay out, and expend the income in and towards the mainte- nance, clothing, lodging, and support of himself and his present or any future wife, and his children or any of them, or otherwise for their or any of their use and benefit, in such manner as the trustees should in their uncontrolled discretion think proper. This was done at the request of C.'s brother, and on the consideration of the brother's paying C.'s debts. It was held, by Wood, V. C, that the settlement, being for valuable con- sideration, and C. having no rights against the absolute discretion of the trustee, the trust was good. Holmes v. Penney, 3 K. & J. 90, § 163, ante. See § 176, ante. 180 EESTEAINTS ON ALIENATION. § 269. The well-recognized exception to the inva- lidity of restraints on the alienation of life interests which prevails in the case of the separate estate of married women, has been already referred to. §§ 140- , 142, ante. It is perfectly consistent with the general doctrine which underlies this whole subject. That doc- trine is, that it is against public policy to permit re- straints to be put upon transfers which the law allows. But the common law does not allow married women to transfer their property. The separate estate which al- lows a transfer is the creature of equity, and it cannot be deemed against public policy for equity to permit its creation to be moulded by a clause against anticipation ; for the tendency of such clause is only to put the mar- ried woman where the common law has always put her. Jackson v. Eohhouse, 2 Mer. 483, 487. Tullett v. Armstrong, 4 Myl. & Cr. 377, 393, 394, 405. § 270. The only estate to which a restraint upon anticipation can be joined is a married woman's sepa- rate estate in equity. What words will suffice to give a separate estate, this is not the place to consider. See Hulme V. Tenant, and notes, 1 L. C. Eq. (5th ed.) 521, (4th Am. ed). *481 ; Haynes's Outlines Eq., Lect. VII. The separate estate is generally for life, but it may be a fee or absolute interest ; and a clause against antici- pation may be attached to a fee when it is separate estate, as well as to a life interest. See §§ 125-131, 133, ante. § 271. The restraint against anticipation cannot be removed by any one ; even the court cannot release it. RESTRAINTS ON ALIENATION. 181 although to do so would be for the unquestionable ad- vantage of the feme covert ; Bohinson v. Wheelwright, 21 Beav. 214; s. o. 6 DeG. M. & G. 535 ; or although she is domiciled in a country where such restraints are unlawful. Peillon v. Brooldng, 25 Beav. 218. § 272. There is one class of cases, however, in which the courts disregard a restraint upon anticipation at- tached to a separate estate ; and that is, when to regard it would make the estate to which it is attached too re- mote. The rule against perpetuities declares that every estate or interest which requires the happening of a con- tingency, or the arrival of a time certain, as a condition precedent, is bad, unless the contingency must happen, or the time must arrive, within a life or hves in being and twenty-one years. An estate in fee simple or a life estate may be given to the unborn child of a living per- son, because the whole interest must vest, and the child have an estate free from any condition, within the re- quired time. But if there is a clause against anticipa- tion attached to the estate, then the estate cannot be dealt with as a whole ; but it will be a condition prece- dent to dealing with the income of each year, that the year should arrive ; and as this may not happen within the time limited by the rule against perpetuities, an estate to an unborn child with a clause against anticipa- tion will be too remote. Such estates might be treated in two ways ; either they might be declared bad, or else the clauses against anticipation might be disregarded, in which case the estates would be good. The latter method is that which has been adopted. 182 BESTEAINTS ON ALIENATION. § 272 a. The course of decision has been as follows. In Carver v. Bowles, 2 Euss. & M. 301, 303, 307, 308 (1831), Sir John Leach, M. E., held that a clause against anticipation attached to a gift under a power to a daughter unborn at the date of the settlement contain- ing the power, was good ; but the only point discussed was whether the power allowed anticipation to be re- strained; the question of remoteness was not alluded to. In Thornton v. BrigJd, 2 Myl. & Cr. 230 (1836), under a power in a marriage settlement to appoint to the children of the marriage, Lord Cotteuham, C, held that an appointment to trustees for the sepa- rate use of a daughter was good. The appointment directed that the daughter should have no power of anticipation. Nothing was said about this clause in the arguments, and the Chancellor does not appear to have passed upon its validity. In Dickinson v. Mort, 8 Hare, 178 (1850), the same question arose as in Thornton v. Bright, and the appointment to separate use, with a clause agaiast anticipation, was held good ; but here again the question of remoteness did not oc- cur to court or counsel. § 272 h. In Fry v. Capper, Kay, 163 (1853), Wood, V. C, held that an appointment like that in Thornton V. Bright was good, notwithstanding there was a clause against anticipation. All that he had to decide was that the appointment was good ; but he strongly inti- mated that the clause against anticipation was bad for remoteness, and must be rejected. See 3 Jur. N. s. Part 2, p. 213, for an article on Fry v. Capper and the RESTRAINTS ON ALIENATION. 183 earlier cases. In Armitage v. Coates, 35 Beav. 1 (1865), Lord Eomilly, M. E., gave it as his " strong impres- sion " that such a clause would be too remote ; but he " expressed no opinion " on it, and determined the case on a ground which made the decision of the question unnecessary. § 272 c. In Be league's Settlement, L. E. 10 Eq. 564 (1870), Vice-Chancellor James held that a clause against anticipation attached to an estate given to an unborn child should be disregarded. This was tlie first time that the point was distinctly determined. The same question was decided in the same way by Malins, V. C, in Re Cunynghame's Settlement, L. E. 11 Eq. 324 (1871). § 272 (^. In Re Ridley, Bucldon v. Hay, 11 Ch. D. 645 (1879), Jessel, M. E., followed the cases cited in the two precediag sections, but reluctantly, thinking them wrongly determined. He argued that the re- straiut on anticipation was an exception to the whole law, including the rule against perpetuities; that it was not merely an exception to the rule allowing free alienation, " but an exception along the whole line, so to speak." (p. 651.) But was not the decision of the learned judge right, in spite of his own argument against it? The clause against anticipation subjects all dealuig with the income of property to a condition, namely, that the income must be earned ; but such a condition, when it may continue beyond the time fixed by the rule against perpetuities, is as obnoxious to the rule as any other. The rule is peremptory in its 184 EESTEAINTS ON ALIENATION. character; and the point having been repeatedly ad- judged that these cases should not form an exception, it is hard to see the principle on which such exception can be insisted on. The learned judge said that alio whig the clause against anticipation in the case of married women was an exception to the rule that all property must be alienable, and as the rule against perpetuities is also a rule in favor of alienation, the clause against anticipation ought to be allowed as an exception to that too. But there would seem to be a fallacy here. The general rule that property is alienable, to which the clause against anticipation is an exception, is a rule that people may convey their interests in property, whatever they may be ; but the rule against perpetui- ties is not a rule favoring alienation in this sense; its effect is to forbid the creation of certain future estates ; it is only a rule favoring alienation in so far as estates subject to remote conditions are not as marketable as those which are not. The possessor of any interest in property could alienate what he had got just as well if the rule against perpetuities did not exist, as he can under it. See § 8, ante. § 272 c. In this case of Be Ridley, Bachton v. Hay, 11 Ch. D. 645, the married women the restraint on whose interest was held invalid were in fact born in the life- time of the testator, although they belonged to a class which might have included persons born after his death ; and the same was the case in Be Michael's Trusts, 46 L. J. Ch, 651 (1877), where Hall, V. C, held like restraints to be void. But this point was not RESTRAINTS ON ALIENATION. 185 brought to the attention of the court in either case; and in Eerhert v. Webster, 15 Ch. D. 610, Hall, V. C, held that where the shares ia settled property must all be determined withia the time prescribed by the rule, a clause against anticipation was not void, so far as it attached to the shares of those who were alive at the date of the settlement. This decision followed fFilson V. Wilsoji, 28 L. J. Ch. 95, 4 Jur. N. s. 1076 (1858), in which Wood, V. C, held that, where the shares under a will must be determiaed within the prescribed period, limitations over were good so far as they affected the shares of persons alive at the death of the testator, though they would not necessarily have been good if applied to the shares of all whom the class might have included. § 272/ In Cooper v. Zaroche, 17 Ch. D. 368 (1881), Malins, V. C, adhered to his decision in Be Cunyng- hame's Settlement, L. R 11 Eq. 324, § 272 c, ante. He thought that he was not called upon ia Cooper v. La- roche to decide the point, because the woman to whose daughters the restricted interest was given was past child-bearing at the testator's death, and therefore all the persons who could possibly take were then alive. The fact that the mother was past child-bearing can have no effect on the result. This has been settled law since Jee v. Audley, 1 Cox, 324. But, notwithstanding this palpable error, the decision may be supported on what seems the sound view taken in Herbert v. Webster, 15 Ch. D. 610, § 272 e, ante. See articles in 71 Law Times, 186 (1881), and 73 Law Times, 409 (1882). 186 EESTEAINTS ON ALIENATION". § 273. Although interest on securities is often, for many purposes, deemed to accrue de die in diem, a mar- ried woman who is restrained from anticipation cannot assign the interest until it becomes payable according to the terms of the security. Be Bretile, Jollands v. Burdett, 2 DeG. J. & S. 79. § 274 There was at one time in England great doubt whether a restraint against anticipation placed on the property of a single woman would become effectual upon her marriage, and also, what is really the same question, whether such a restraint imposed on a mar- ried woman, and which ceased on her becoming a widow, would revive on her second marriage. Lord Cottenham, C, in Massey v. Barker, 2 Myl. & K. 174, said it would not; but he subsequently decided the contrary, ia Tullett v. Armstrong, 4 Myl. & C. 377, affirming the decree of Lord Langdale, M. E., 1 Beav. 1 ; and it is now settled that a restraint against alienation will not bind a woman so long as she is single or a widow, but will bind her whenever she is married, although, if the testator or settlor wishes, he may limit the restraint to any particular coverture.-' § 275. When the question has come up in America, Tullett V. Armstrong has been followed. Nix v. Brad- ley, 6 Eich. Eq. 43. Fears v. Brooks, 12 Ga. 195. Boh- ert v. West, 15 Ga. 122. Beaufort v. Collier, 6 Humph. 1 A woman may, of course, so deal with separate estate, while un- married, as to destroy the separate character of the property, and it will then become her husband's on coverture. See L. C. Eq. (5th ed.) 670-572 ; Mx v. Bradley, 6 Rich. Eq. 43. KESTEAINTS ON ALIENATION. 187 487. Phillips v. Grayson, 23 Ark. 769. Bridges v. Wilkins, 3 Jones, Eq. 342, overruling anything to the contrary in Apple v. Allen, lb. 120, and Miller v. Bing- ham, 1 Ired. Eq. 423. See Schafroth v. Amis, 46 Mo. 114. § 276. Pennsylvania is an exception. As we have seen (§§ 214-217, ante), in that State, trusts are deemed passive whenever it is possible to consider them so, and in passive trusts, whether of real or personal estate, the cestui que trust is vested with the legal title. A trust for the separate use of a married woman is deemed an active trust, because, unless it is so considered, it can- not be preserved from her husband or his creditors. Lancaster v. Bolan, 1 Eawle, 231, 247. Hartley's Estate, 13 Phil. 392. But whenever a married woman for whom property is held as her separate estate, with or without a clause against anticipation, becomes dis- covert, the trust is held to become passive, the legal estate passes to her, and the trust is destroyed, and does not revive on a subsequent marriage. So a trust of like kind for a single woman vests in her the legal estate, and the trust becomes extinct, and is not re- vived on her marriage. Such trusts are, however, allowed when made in contemplation of a particular marriage. The leading case is Ramersley v. Smith, 4 Whart. 126, in which, following Massey v. Parker, 2 Myl. & K. 174, it was held that a trust for the sepa- rate use of a woman ceased on her husband's death, and did not revive on her second marriage. See Frey- vogle V. Hughes, 56 Pa. St. 228 ; Megargee v. Naglee, 64 188 EESTEAINTS ON ALIENATION. Pa. St. 216 ; Bea v. Cassd, 13 Phil. 159. In Kuhn v. Nev;man, 26 Pa. St. 227, trusts for the separate estate of a woman were held not to become operative on a subsequent marriage not in contemplation at the crea- tion of the trust ; and so it was again held in McBride V. Sviijth, 54 Pa. St. 245 ; Ogden's Appeal, 70 Pa. St. 501; and Snyder s Appeal, 92 Pa. St. 504.1 j^ ]Yells v. McOcdl, 64 Pa. St. 207, it was held that a trust for a separate estate made in " immediate contemplation of marriage" was good. So in Springer v. Arundel, 64 Pa. St. 218, and Ash v. Bowen, 10 Phil. 96. See Dodson v. Ball, 60 Pa. St. 492 ; Bickering v. Coales, 10 Phil. 65 ; Eastwick's Estate, 13 Phil. 350. § 277. The results reached in Pennsylvania are curi- ous. Persons sui juris are allowed the benefit of prop- erty which their creditors cannot touch, contrary to the law elsewhere; but trusts for the benefit of married women, who are not sui juris, which have been favored in all other jurisdictions, are in Pennsylvania kept within the strictest limits. § 277 fl. In Bacific Bank v. Windram, 133 Mass. 175, see § 268 a, ante, a married woman conveyed per- sonal property to trustees, in trust to pay the income to herself for life, " upon her sole and separate order or receipt, the same not to be by way of anticipation," with a gift over. She and her husband assigned all her 1 Snyder v. Snyder, 10 Pa. St. 423, holds that chattels given to a ■widow for her separate use do not pass to her second husband. The case does not seem to be noticed in the later decisions, but must be talcen to he overruled by them. KESTEAINTS ON ALIENATION. 189 interest in the income. Held, that the assignment was good. To appreciate the effect of this decision, it must be borne in mind that in Massachusetts such assign- ment, if made by a man upon whom property not his own had been settled, with a like clause against antici- pation, would not have been good. Broadway Bank v. Adams, 133 Mass. 170, § 240 6, ante. In Massachusetts, therefore, the law is, that in a settlement upon a person other than the settlor, or in a devise, a clause against anticipation of an equitable life interest is good, whether the life tenant be a married woman or not; but that a clause against anticipation of an equitable life interest settled upon the settlor is bad, whether the settlor be a married woman or not; that is, married women are treated in these matters just like the rest of the world. It is singular that Pennsylvania and Massachusetts, the two jurisdictions which have departed from the rest of the common law world in allowing spendthrift trusts, are also the two which have departed from the protec- tion given elsewhere to the separate estates of married women. 190 EESTEAINTS ON ALIENATION. D. ESTATES FOE YEAKS. § 278. As we have seen, § 101, ante, a condition against alienation attached to an estate for years is valid ; but can a man be compelled to remain a tenant for years in spite of himself ? Will not an assignment always be operative to take the estate from the assignor, although it may subject the estate to forfeiture in the hands of the assignee ?i There is no authority on the point except ITobbs v. Smith, 15 Ohio St. 419, in which a provision that a term for ninety-nine years should not be Hable for the debts of the lessee, there being no con- dition or gift over, was held void. This follows the analogy of estates for life, and seems iu accordance with principle; in the absence, therefore, of any authority to the contrary, it may be assumed to be a correct statement of the law. § 278 a. If an estate for years is the separate prop- erty of a married woman, a restraint on its anticipation is undoubtedly good. 1 The continuance of the tenancy must not be confounded with lia- hiUty on the covenants of a lease. The original lessee remains bound by the covenants, though he has made a valid assignment of the prop- erty. SUMMARY. FORFEITURE FOR ALIENATION. § 279. A. Fee Simple. — An unqualified condition or conditional limitation on alienation, either in gen- eral or in any particular mode, cannot be joined to a fee simple or to an absolute interest in personalty. §§ 13-30, 55, 56. A condition or conditional limitation not to alien to certain specified persons can be attached to a fee simple or to an absolute interest in personalty ; but how far a condition or conditional limitation not to ' alien except to certain specified persons can be so attached is doubtful. §§ 31-44 A condition or conditional limitation not to alien an estate or interest while contingent is good ; but, by the present weight of authority, if a fee simple or an absolute interest in personalty has vested, a condition or conditional limitation against alienation attached to it is void, Jiovjever limited in time. §§ 45-54. A condition or conditional limitation attached to a fee simple or on an absolute interest in personalty to take effect if the owner does not alienate, e. g. if he dies intestate without having disposed of the estate, 192 EESTKAINTS ON ALIENATION. has generally, though not universally, been held void. §§ 57-74. B. Fee, Tail. — A condition or conditional limitation against alienation attached to an estate in fee tail is good, but is destroyed by barring the estate, and the barring of an estate tail cannot ,be restrained by any condition or conditional limitation. §§ 75-77. C. Estate for Life. — A condition or conditional limitation on alienation is good when attached to a life estate or interest in either realty or personalty. §§ 78-89. Exception. If the life tenant is the settlor, a condi- tion or conditional limitation is bad against involuntary, and, semUe, against voluntary alienation. §§ 90-100. D. Estate for Years. — A condition or conditional limitation against alienation attached to an estate for years is good. §§ 101-103. EESTEAINT ON ALIENATION. A. Fee Simple. — Any provision restraining the alien- ation, voluntary or involuntary, of an estate in fee sim- ple or an absolute interest in chattels real or personal, whether legal or equitable, is void. §§ 105-124. Exception. Married women may be restrained from alienating their separate estates. §§ 125-131. B. Fee Tail. — Any provision restraining the alien< ation of an estate tail is destroyed by the barring of the estate. § 132. Exception. If an equitable fee tail, being the sepa- SUMMARY. 193 rate estate of a married woman, is subject to a pro- vision against alienation, the fee simple which arises on the barring of the estate tail is subject to a like provision. § 133. C. Estate for Life. Any provision restraining the alienation, voluntary or involuntary, of a life estate or interest, in realty or personalty, whether legal or equitable, is void. §§ 134-213, 241-249, 268-268 h. Exception 1. In Pennsylvania and Massachusetts an equitable life interest may be subjected to a provision against alienation. §§ 214-240 d. In the Federal courts tlie authorities are conflicting. §§ 250-267. Exception 2. Married women may be restrained from alienating their separate life estates or interests. §§ 269-277 a. D. Estate for Tears. — Any provision restraining the alienation of an estate for years is void, semble. § 278. Exception. Married women may be restrained from alienating estates for years, which are their separate property. § 278 a. 13 APPENDIX I. DECISIONS UNDER THE NEW YOEK STATUTES. § 280. Apaet from statute, the invalidity of restraints against alienation attaclied to equitable life interests has been held aa strictly in New York as anywhere. See §§ 180, 181, ante. But the matter is now entirely governed by statute, and the modern New York decis- ions throw, therefore, no light on the points which have been considered. As, however, those decisions have sometimes been erroneously referred to as authorities on the general question, and as it may be convenient to have them collected, the statutes, with the cases under them, are here given. § 281. The sections of the Eevised Statutes affecting the matter are as follows : — Part 2, chapter 1, treats of Eeal Property; of this chapter, title 2, art. 2, contaii^s the following sections. " § 45. Uses and trusts, except as authorized and modified in this article, are abolished." " § 55. Express trusts may be created for any or either of the following purposes : — "1. To sell lands for the benefit of creditors. " 2. To sell, mortgage, or lease lands, for the benefit 196 RESTRAINTS ON ALIENATION. of legatees, or for the purpose of satisfying any charge thereon. " 3. To receive the rents and profits of lands, and apply them to the education or support only^ of any person, during the life of such person, or for any shorter term, subject to the rules prescribed in the first article of this title.^ " 4. To receive the rents and profits of lands, and to accumulate the same, for the purposes and within the limits prescribed in the first article of this title." " § 57. Where a trust is created to receive the rents and profits of lands, and no vahd direction for accumu- lation is given, the surplus of such rents and profits, beyond the sum that may be necessary for the educa- tion and support of the person for whose benefit the trust is created, shall be liable, in equity, to the claims of the creditors of such person, in the same manner as other personal property which cannot be reached by an execution at law."^ "§ 63. No person beneficially interested in a trust for the receipt of the rents and profits of land can assign or in any manner dispose of such interest ; but the rights and interest of every person for whose ben- efit a trust for the payment of a sum in gross is created are assignable." ^ This was the. language of the section as originally reported by the revisers. For its change by the legislature, see § 283, post. 2 These rules do not touch the present (question. 8 The statement in Clute v. Bool, 8 Paige, 83, 87, that this section was not originally reported by the revisers, but was introduced by the legislature, is iucoiTect. 3 N. Y. Rev. Sts. (2d ed. ) 579. APPENDIX I. 197 " § 65. Where the trust shall be expressed in the instrument creating the estate, every sale, conveyance, or other act of the trustees, in contravention of the trust, shall be absolutely void." In Part 3, chapter 1, title 2, art. 2, on the general powers of the Court of Chancery, are the following sections. " § 38. Whenever an execution against the property of a defendant shall have been issued on a judgment at law, 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 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 where such trust has been cre- ated by, or the fund so held in trust has proceeded from, some person other than the defendant himself].^ " § 39. The court shall have power to compel such discovery, and to prevent such transfer, payment, or delivery, and to- decree satisfaction of the sum remain- ing due on such judgment, out of any personal property, money, or thiags in action, belonging to the defendant, or held in trust for him [with the exception above stated],^ which shall be discovered by the proceedings in chancery, whether the same were originally liable to be taken in execution at law or not." 1 The clauses in brackets were not in the original revision, but were added by the legislature. 3 N. Y. Eev. Sts. (2d ed.) 669. 198 EESTEAINTS ON ALIENATION. § 282. This crude and reckless legislation seems to have been as unsuccessful in practice as it deserved to be. It has led to great litigation, and there has been the utmost difference of opinion on points which ought to have been put beyond doubt. The revisers seem to have looked at the subject of trusts solely from the con- veyancer's point of view, and with the object of simpli- fying titles. This is shown by the fact that they have made no provisions with regard to personalty similar to those of Part 2, c. 1, tit. 2, art. 2. Their intention evi- dently was to pass the legal title to every one except those who were legally or naturally incapable of man- aging property. In their notes to article 2 they say : "An assignment for the benefit of creditors would in most cases be entirely defeated, if the title were to re- main in the debtor, and where the trust is to receive the rents and profits of lands, and to apply them to the education of a minor, the separate use of a married woman, or the support of a lunatic or spendthrift, (the general objects of trusts of this description,) the utility of vesting the title and possession in the trustees is suf- ficiently apparent." 3 IST. Y. Eev. Sts. (2d ed.) 585. In fact, in order to simplify conveyancing, and not warned by the history of the Statute of Uses, the revisers deter- mined to destroy trusts in land (and in land only) by not allowing any one to enjoy any interest in land with- out having the legal title, except in the case of those persons who were not legally fit to have it ; and to pre- vent any difficulty arising in the transfer of land in those cases where the legal title was separated from the APPENDIX I. 199 equitable, they provided that in such cases the land could not be transferred at all. §§ 63, 65.^ § 283. To prevent abuse, however, they provided that any surplus of rents and profits, not needed for education and support, should be liable in equity to the debts of the cestui que trust ; but apparently for- getting this, the legislature, when they came to give remedies in equity, provided that trust property might be taken in equity for debts, " except where such trust has been created by, or the fund so held in trust has proceeded from, some person other than the defendant himself." (Part 3, c. 1, tit. 2, art. 2, § 38.) Although this last section contradicts the provisions of Part 2, c. 1, tit. 2, art. 2, these latter had a certain consistency among themselves. But this was soon destroyed. In the third clause of § 55 the words " or support only " were stricken out, and "and support or either" were inserted by the legislature. And in 1830, the revisers recommended, and the legislature adopted, an amend- ment, by which the words " education and support or either" were stricken out, and the word "use" inserted. 3 N. Y. Eev. Sts. (2d ed.) 579. So that the clause now reads, " To receive the rents and profits of lands, and apply them to the use of any person," &c. No corre- I A power authorizing, for the purpose of changing the investment, the sale of land held in trust, is held, however, not to be in violation of §§ 63, 65. Belmont v. O'Brien, 12 K. Y. 394. See Roosevelt v. Eoose- velt, 6 Hun, 31 ; s. c. 6i K. Y. 651 ; ffawley v. James, 5 Paige, 318, 444 ; Marvin v. Smith, 56 Barb. 600, 605 ; Eeermans v. Robertson, 5 T. & C. 596 ; Fellows v. Heerm,ans, 4 Lans. 230 ; Oruger v. Jones, 18 Barb. 467. 200 RESTRAINTS ON ALIENATION. spending change was made in the other sections, and thus equitable interests were allowed to be created for persons sui Juris and competent, and yet they were not authorized to alienate them (alv/ays provided they were realty). § 284. In this condition the statutes were turned over to the courts to deal with them as best they could. See Gott v. Cool; 7 Paige, 521, 536 ; Coster v Lorillard, 14 Wend. 265, 321, 330, 332, 352, 377; Hawlmj V. James, 16 Wend. 61, 147, 148 ; Downing v. Marshall, 23 N. Y. 366, 378, 379 ; Graff v. Bonnett, 31 N. Y. 9, 19-21, 24^31 ; Wetmore v. Truslow, 51 K Y 338, 342 ; Rome Exchange Bank v. Eames, 4 Abb. Ct App. 83, 99. § 285. A question early rose into great prominence. By the provision that an express trust might be created to receive the rents and profits of lands, and apply them to the use of any person, was it meant to allow trusts only when the trustees had to apply the money, or was it meant to allow them when the trustees had merely to pay the money over ? The latter interpretation was certainly inconsistent with the scheme as originally framed, and was letting in by a side door many of those trusts which had been so ostentatiously thrust forth from the front ; but after great conflict it finally pre- vailed. Leggett v. Perkins, 2 Comst. 297. See Moijes v. Blakeman, 3 Sandf. S. C. 531, 541 ; s. c. 6 N. Y. 567 ; Campbell v. Low, 9 Barb. 585 ; ToUas v. Ketchum, 32 N. Y. 319, 330 ; Jarvis v. BahcorJc, 5 Barb. 139. For earlier cases, see Gott v. Cook, 7 Paige, 521 ; Clute v. APPENDIX I. 201 Bool, 8 Paige, 83; Van Epps v. Van Epps, 9 Paige, 237; Rogers v. Ludlow, 3 Sandf. Ch. 104 ; Coster v. Lorillard, 14 "Wend. 265; Hawley v. Jam.es, 16 Wend. 61. § 206. As has been said, the revisers, having in view only simplifying the transfer of land, did not limit the trusts which might be created in personal property, thus making a new distinction between real and personal estate, when the distinctions which al- ready prevail are among the chief opprdbria of the common law, and when the whole course of civilization and of the natural growth of the law has been to min- imize these distinctions. It has never been disputed in New York that, notwithstanding the Eevised Statutes, trusts of personalty may be created for any purpose which was lawful before the statute. See Gott v. Goolc, 7 Paige, 521, 534; Kane v. Gott, 24 Wend. 641, 661; Leggett v. Perkins, 2 Comst. 297, 313 ; De Peyster v. Clendining, 8 Paige, 295, 305 ; Everitt v. Everitt, 29 N. Y. 39, 71 ; Vail v. Vail, 7 Barb. 226, 238 ; Brown v. Harris, 25 Barb. 134; RagertyY. Hagerty, 9 Hun, 175. But is the clause of the Eevised Statutes, § 63, which declares trusts of real estate inalienable, to be extended to trusts of personalty? The argument for its extension is to be found in Eev. Sts., Part 2, c. 4, title 4, §§ 1, 2. § 1 provides that the ownership of personal property shall not be suspended by any limitation or condition whatever for more than two lives. § 2 provides " that, in all other respects, limitations of future or contingent interests in personal property shall be subject to the rules prescribed in the first chapter of this act in rela- 202 EESTEAINTS ON ALIENATION. tion to future estates in lands." It is clearly shown by Co wen, J., in Kane v. Gott, 24 Wend. 641, and Denio, 0. J., in his dissenting opinion in Graff v. Bonnett, 31 N. Y. 9, 19-25, that this clause applies only to the pro- visions concerning future interests in the first chapter, and that trust interests to commence immediately on the execution of the trust deed or the death of the tes- tator are not future interests. To the same effect are Grout V. Fail ScJwonhoven, 1 Sandf. Ch. 336 ; Arnold v. Gilbert, 5 Barb. 190, 198 ; Cruger v. Cruger, lb. 225, 266 ; Vail v. Vail, 7 Barb. 226, 238 ; Brown v. Harris, 25 Barb. 134; Titus v. TVeeks, 37 Barb. 136, 149. Chan- cellor Walworth, however, in several decisions, held that the Revised Statutes made trusts of personalty inalien- able. Hallett V. Thompson, 5 Paige, 583. Hone v. Van Schaick, 7 Paige, 221, 233, 234. Clute v. Bool, 8 Paige, 83. Degraw v. Clason, 11 Paige, 136. And the weight of authority, though not of reason, is now the same way. Arnold v. Gilbert, 3 Sandf. Ch. 531, 554, 555. Bider v. Mason, 4 Sandf. Ch. 351. Graff v. Bonnett, 2 Eobertson, 54; s. c. 31 N. Y. 9, 13. Campbell v. Foster, 35 K Y. 361, 371. Roosevelt v. Roosevelt, 6 Hun, 31 ; s. c. 64 N. Y. 651. Scott v. Nevius, 6 Duer, 672. And see Hone v. Van Schaick, 20 Wend. 564; Havens v. Healy, 15 Barb. 296, 301 ; Williams v. Thorn, 70 N. Y. 270, 278. § 287. K Y. Eev. Sts., Part 2, c. 1, tit. 2, art. 2, § 57, provide that the surplus of rents and profits of land held in trust beyond what is necessary for the educa- tion and support of the cestui que trust shall be liable, APPENDIX I. 203 in equity, to his creditors. Part 3, c. 1, tit. 2, art. 2, §§ 38, 39, provide that, when an execution is returned unsatisfied, the creditor may bring a bill to have his debt satisfied out of any property held in trust for the debtor, except where the trust has been created by some person other than the debtor. See § 281, ante. Three modes have been suggested of dealiiig with these contradictory provisions. § 288. First. That §§ 38, 39, forbid only the taking of the principal of trust funds created for a debtor, but leave it open to take the surplus of the income. This view seems to be confined to Chief Judge Denio, who states and defends it in his dissenting opinion in Graff V. Bonnett, 31 K Y. 9, 25-30. § 289. Second. That the exception in §§ 38, 39, prac- tically leaves the creditor without a remedy. This was said by Wright, J. to be his opinion, in Campbell v. Foster, 35 N. Y. 361, 373. See Stewart v. McMartin, 5 Barb. 438, 444 ; Zocke v. Mahhett, 2 Keyes, 457, 460 ; S. C. 3 Abb. Ct. App. 68 ; Parker v. Harrison, 10 Jones 6 Sp. 150. The opinion in Campbell v. Foster was followed, apparently with reluctance, in Hann v. Van Voorhis, 5 Hun, 425; and see accordingly Miller v. Miller, 7 Hun, 208. It should be observed that the case of Campbell v. Foster*\& one of those relied on by Miller, J. in his opinion in Nicliols v. Eaton, 91 U. S. 716, 729. § 290. Third. But this latter doctrine is now dis- tinctly overruled, and it is settled that the surplus in- come of a trust fund not necessary for the support and 204 EESTKAINTS ON ALIENATION. maintenance of the cestui que trust can be reached by a creditor's bill. The case of Williams v. Thorn, 70 N. Y. 270, followed in McEvoy v. Applehj, 27 Hun, 44, is the unanimous decision of the Court of Appeals, that in a proceeding like a creditor's bill against a trust fund, consisting of both realty and personalty, the surplus in- come beyond what is necessary for the suitable support of the debtor and those dependent on him, is applicable to the payment of his creditors ; and that this is true not only of the accrued income, but — overruling on this point Clute v. Bool, 8 Paige, 83 ; and see Bryan v. Knickerlacker, 1 Barb. Ch. 409, 427 ; Graff v. Bonnett, 2 Eobertson, 54 ; Sillich v. Mason, 2 Barb. Ch. 79, 82 ; Scott V. Neviiis, 6 Duer, 672 — that the accruing in- come will be ordered applied in like manner. The only question left open is whether the ivliole of the personalty cannot be reached by the creditors. § 291. That such surplus can be reached by credi- tors has also been held in Sillich v. Mason, 2 Barb. Ch. 79; Rider v. Mason, 4 Sandf. Ch. 351 ; Miller v. Miller, 1 Abb. ISr. C. 30 ; and has been said or assumed in many cases ; e. g. Halhtt v. Thompson, 5 Paige, 583 ; Clute v. Bool, 8 Paige, 83; Bcgraw v. Olason, 11 Paige, 136; L'Amoureux v. Van Rensselaer, 1 Barb. Ch. 34 ; Rogers V. Ludlovj, 3 Sandf. Ch. 104 ; Craig v. Eonc, 2 Edw. Ch. 376, 554, 570 ; Bramhall v. Ferris, 14 K Y. 41, 46; G-raffv. Bonnett, 2 P^obertson, 54; s. C. 31 N. Y. 9; Noyes v. Blaheman, 3 Sandf. S. C. 531 ; s. c. 6 N. Y. 567; Cruger v. Jones, 18 Barb. 467; Genet v. Bcekman, 45 Barb. 382 ; Seott v. Nevius, 6 Duer, 672 ; Moulton APPENDIX I. 205 V. Be ma Carty, 6 Eobertson, 533 ; Genet v. Foster, 18 How. Pr. 50. § 292. Although this surplus can be reached by creditors, the cestui que trust cannot alienate it by any voluntary conveyance ; and therefore property held in trust for the separate use of a married woman is not liable for her debts, because a married woman's debts can affect her separate estate only by way of charge. L'Amourcux v. Van Rensselaer, 1 Barb. Ch. 34. Rogers V. Ludlow, 3 Sandf. Ch. 104 Noijes v. Blakeman, 3 Sandf. S. C. 531 ; s. c. 6 K Y. 567. § 293. This surplus can be reached only by a pro- ceeding in the nature of a creditor's bill, and not by proceedings supplementary to execution, if the income has not yet accrued ; Scott v. Ncvius, 6 Duer, 672 ; Campbell v. Foster, 16 How. Pr. 275 ; s. C. 35 N. Y. 361, 373 ; or even if it has accrued ; Locke v. Mahhett, 2 Keyes, 457 ; s. c. 3 Abb. Ct. App. 68 ; Genet v. Foster, 18 How. Pr. 50. See G}'aff v. Bennett, 2 Eobertson, 54 ; s. c. 31 N. Y. 9. § 294. To determine what is necessary for the edu- cation and support of a cestui que trust, and what stan- dard of expense is to be taken, is obviously a difficult task for a court of equity. In what condition of life is a man entitled to be supported as against his creditors ? See Clute v. Bool, 8 Paige, 83, 87; Sillick v. Mason, 2 Barb. Ch. 79 ; Genet v. Beekman, 45 Barb. 382 ; Moul- ton V. De ma Carty, 6 Eobertson, 533 ; Scott v. Nevius, 6 Duer, 672, 677; Campbell v. Foster, 35 N. Y. 361, 373. 206 EESTKAINTS ON ALIENATION. § 295. Whether an annuity payable out of rents and profits is alienable and liable for debts, or whether it is inalienable and not liable for debts, is left very doubtful on the authorities. In Hawley v. James, 16 Wend. 61, the matter was much discussed; but the re- sult is not clear. In the same case, before Walworth, C, 5 Paige, 318, 461, and in Gott v. Cook, 7 Paige, 521, 535, the Chancellor seems to have thought that an an- nuity was alienable ; but -iu Clute v. Bool, 8 Paige, 83, 86, he says that, since the decision of the Court of Er- rors in Hawley v. James, he concludes he must have been wrong. In Degraw v. Clason, 11 Paige, 136, he held that an annuity charged on realty and personalty was liable for debts. In Eider v. Mason, 4 Sandf. Ch. 351, the Vice-Chan cellor seems to have thought that creditors could reach so much of an annuity (and only so much) as was not needed for support ; and a lilce decision was made in Stewart v. McMartin, 5 Barb. 438, 444, 445, an annuity being thought to be inalien- able under the case of Hawley v. James. On the other hand, in Lang v. Bophe, 5 Sandf. S. C. 363, it was held, on the strength of Hawley v. James, that an annuity was alienable. In Griffen v. Ford, 1 Bosw. 123, a tes- tator gave realty and personalty to trustees, " to take, appropriate, and apply so much thereof as shall be necessary and proper for and towards the suitable sup- port and comfortable maintenance of my wife." It was held that the wife's interest was in its nature an annuity, and therefore alienable. If this be law, it will not be difficult to evade the provision against the APPENDIX I. 207 I alienation of trust estates ; and the case perhaps shows the fallacy of attempting to distinguish between the payment of rents and profits, and the payment of an annuity out of rents and profits; and that under the Ee vised Statutes both such interests must be regarded as inalienable. § 296. Besides Tennessee and New Jersey, as to which see §§ 189-189 h, 191, 192, ante, several States have copied in whole or in part the legislation of New York; e. g. California, Civil Code (1872), §§ 857, 859, .867, 868; Kansas, Gen. Sts. c, 114, § 4; Michigan, Comp. Laws (1871), §§ 4124, 4126, 5060, 5061 ; Min- nesota, Eev. Sts. (1866), c. 43, §§ 11, 13, 19 ; Wiscon- sin, Eev. Sts. (1878), §§ 2071, 2081, 2083, 2089, 3029 ; but no decisions upon the points in question have been made under these statutes. But see Arzbacher v. Mayer, 53 Wis. 380 ; and compare also Hexter v. Clifford, 5 Colorado, 168. 208 EESTKAINTS ON ALIENATION. APPENDIX II. § 297. To the cases in §§ 106-112 should be added Re Jacob's Will, 29 Beav. 402. There a residue was bequeathed to the testator's four sons equally, the cap- ital not to be divided until tliey should all become settled in ' life ; the interest of their portions alone to be paid after they were all provided for, until they sev- erally became thirty years old, when the capital was to be placed at, their disposal. Held that each son was entitled to his share of the capital on reaching twenty- one. See Pearson v. Dolman, L. E. 3 Eq. 315. § 298. The invalidity of provisions postponing the payment of the principal of a fund in which a devisee has an immediate absolute interest, is shown by the numerous cases in which such postponement beyond the limit fixed by the rule against perpetuities has not deprived the devisee of the right to have the principal paid him, if he has an absolute interest in the fund within the required time ; or, in other words, the devi- see is considered as acquiring, within the required limits, all the rights to the property, and the postponement of the right to payment of the principal is deemed void If the postponement of the right to the principal were APPENDIX II. 209 valid, then that right could never be enjoyed by the devisee, for it would be bad for remoteness. Farmer V. Francis, 2 Bing. 151 ; 9 Moore, 310 ; 2 S. & St. 505. Murray v. Addenhrooh, 4 Euss. 407. Bland v. Wil- liams, 3 Myl. & K." 411. Doe, d. Dolleij v. Ward, 9 Ad. & E. 582. Blease v. Burgh, 2 Beav. 221. Greet v. Greet, 5 Beav. 123. Davies v. Fisher, lb. 201. Milroy v. Mil- roy, 14 Sim. 48. Bute v. Harman, 9 Beav. 320. Har- rison V. Grimwood, 12 Beav. 192. Knox v. Wells, 2 H. & M. 674. Saumarez v. Saumarez, 34 Beav. 432. Willson V. Co&%, Weekly N. 1870, p. 46. -foa; v. i^ba^, L. R 19 Eq. 286. Mappin v. Mapinn, Weekly N. 1877, p. 207. See Taylor v. Frobisher, 5 DeGr. & Sm. 191 ; Baxter's Trusts, 10 Jur. N. s. 845 ; Lewis on Perp., c. 22, and SuppL, pp. 170, 171. § 299. That restraints against alienation attached to legal or equitable fees are bad, see also Lane v. Zane, 8 Allen, 350 ; Sears v. Putnam, 102 Mass. 5, 9. Although Slade V. Patten, 68 Me. 380, is demonstrably erroneous, except on the supposition that the court thought an equitable fee inalienable, they probably had no such idea. See 14 Am. Law Eev. 237. Cf. Pennsylvania Co. V. Price, 7 Phil. 465. The case of Cooper v. Cooper, 36 ISr. J. Eq. 121, is so imperfectly reported, that it is impossible to tell what it decided, or whether the de- fendant was considered as having an equitable fee or an equitable life estate. 14 INDEX. THE EEFERENOES ARE TO THE SECTIONS. I SECTION Alabama, cases on restraining the alienation of equitable life interests 175, 177, 178, 185-188, 313 AMERICAN, spendthrift trusts alleged to be . . . . 362, 363 ANNUITY terminable on assignment or bankruptcy, when payable in gross 83-89 ARKANSAS, case on restraining the alienation of equitable hfe interests 175, 177, 178, 19i, 313 ATTACHMENT, equitable interests cannot be taken on 173, 312, 327 IJOND payable on bankruptcy, invaUd, 92 BRACTON, lib. 3, c. 19, fol. 45 16 BRITTON, lib. 3, c. 5, § 2; Kb. 3, c. 8, § 6; lib. 3, c. 4, § 20 . 18 BUTLER, CHARLES, his opinion on restraining the aUenation of equitable life interests 147 vHANCERY follows common law as to the allowance of restraints on ahenation . . .... 144, 168, 356 how far creditors have a remedy in . . 170 CHARGE on alienation .... 25, 81 CHATTEL REAL. See Estate foe Yeaks. CONDITIONAL LIMITATION, meaning of . . . 32 note and condition, of Kke effect as to forfeiture for ahenation 13, 79, 80 CONNECTICUT, cases on restraining the alienation of equitable life interests . . 175, 177, 178, 195-199, 213 212 INDEX. SECTION CKEDITORS' RIGHTS, not the reason for disallowing restraints on alienation ... 258, 259 CROWN. See Kiks. Equity. See chanceet. ESTATE FOR LIFE, forfeiture of, on alienation . . 78-100 charge on alienation of 81 right of pre-emption by grantor 81 restraint on alienation of 134-277 « settled on settlor, forfeited for alienation, involuntary . . 91-95 voluntary 96-100 restraint on alienation of . . . 268 a, 268 i, 277 a ESTATE- FOR YEARS, condition against alienation oa assignment of, bad . 27,102 condition not to alien, good .... .... 101 limitation on, always construed condition .... 101 note restraint on alienation of . . 278, 278 a ESTATE IN FEE SIMPLE. See Fee Simple. ESTATE TAIL. See Feb Tail. EXECUTION, equitable interests not taken on . . . 171-174 exceptions 171 note EXECUTORS, conditions against alienation of leases by . . 101 EXEMPTION LAWS, no reason for allowing spendthrift trusts 263 lEDERAL COURTS, cases on restraining the alienation of equitable life interests 250-267 FEE SIMPLE, forfeiture for alienation 11-74 generally 13-30 qualified, as to persons 31-44 as to time, iu contingent limitations .... 46 in vested limitations 47-54 as to manner 55, 56 INDEX. 213 SECTION PEE SIMPLE, Continued. charge on alienation 35 right of pre-emption by vendor 26 restraint on alienation of 105-131, 297 FEE TAIL 25, 75-77, ]32, 133 EEMES COVEET. See Markied Women. EINES at common law and by statute 75 FOREIGN ATTACHMENT. See Attachment. FORFEITURE for ahenatiou 10-103 Garnishment. See Attachment. GEORGIA, cases on restraining the alienation of equitable life interests 175, 177, 178, 184, 213 GIBSON, Chief Justice, favored spendthrift trusts ... 219 GLANVILLE, Ub. 7, c. 1 14 Husband and wife. See maubied women. Indiana, no cases on restraining the alienation of equita- ' ble life interests ... 175 INTESTACY, gifts over on 57-74 J UDGMENT, creditor must get, before going into equity 170, 205 IvENT, Chancellor, his theory of gifts over on intestacy 66, 69- 71,73 KENTUCKY, cases on restraining the alienation of equita- ble life interests 175, 177, 178, 200-211, 213 KING, whether he may grant on condition not to alienate .... 20, 21 note Lease. See Estate eor Yeam. LIFE ESTATE. See Estate eoe Lipe. 214 INDEX. '' SECTION Married women, property may be settled on husband till Ins death or baukmptoy . . . .^ 93 separate estate, restraints on anticipation of fees and absolute interests 125-131 Hfe interests . . ... 140-14.3, 269-377 a estates for years 378 a MARYLAND, no oases on restraining the alienation of equitable life interests . . 175 MASSACHUSETTS, cases on restraining the alienation of equitable life interests . . 175, 177, 178, 313, 336-240 d case on anticipation by married women 377 a MISSOURI, cases on restraining the alienation of equitable life interests 175, 177, 178, 198, 213 MORALITY, views of, involyed in question of allowing spendthrift trusts 264, 265 JNEW jersey, cases on restraining the alienation of equitable life interests . . . 175, 177, 178, 191, 192, 213 NEW YORK, cases on restraining the alienation of equita- ble life interests, before the Revised Statutes 175, 177, 178, 180, 181, 213 after the Revised Statutes . . . 280-296 NORTH CAROLINA, cases on restraining the alienation of equitable hfe interests .... 175, 177, 178, 182, 213 UHIO, cases on restraining the aKenation of equitable life interests 175, 177, 178, 190, 213 Partition, restraints on 30 PARTNER, interest of, limited to copartners on his bank- ruptcy 94 PENNSYLVANIA, restraints on alienation of equitable fees not allowed in . 115 restraints on alienation of equitable life interests aUowed in ... 6, 175, 177, 178, 213-235, 240 d, 265 effect of marriage on provision against anticipation . 276, 277 INDEX. 215 SECTION PEEPETUITIES, rule against . . . . 8, 42, 43 note, 51, 103, %n-%nf, 298 PEW 29 POWERS, wten assets for creditors • . 4, 219 PRE-EMPTION, right of " ' 26, 81 PUBLIC POLICY, the true reason for disallowing restraints on alienation 3, 21, 167, 168, 258-265 Remoteness. See perpetuities. REPUGNANCY, its meaning 257 RESTRAINT ON ALIENATION 10, 104-278 a RHODE ISLAND, case on restraining the alienation of equitable life interests 175, 177-179, 213 St. LEONARDS, Lokd. See Sugben. SANDWICH ISLANDS, case on restraining the alienation of equitable life interests .... 268 SEPARABLE, interests of cestuis que trust when 176 SOUTH CAROLINA, case on restraining the alienation of equitable life interests .... 175, 177, 178, 183, 213 STATUTES. English. Magna Carta (1217), c. 39 15 c. 43 4 13 Edw. I. (Westm. II.), c. 1, De Donis . 4, 6, 75, 143 c. 18 4 18 Edw. I. (Westm. III.), e.l 4, 17 4 Hen. VII. c. 24 75 32 Hen. VIII. c 1 . . 4 c. 36 . 75 34 & 35 Hen. VIII. c. 5 4 13 Eliz. c. 5 4 27 Eliz. c. 4 4 12 Car. II. c. 24 4 29 Car. II. <;. 8, § 10 4, 174 §§ 11, 12 4 3 W. & M. <;. 14 4 54 Geo. III. c. 161, § 28 2 216 INDEX. BECTION STATUTES, Continued. United States. Revised Statutes, § 4745 2 California, Civil Code, 1872, §§857, 859, 867, 868 . . 296 Kansas, Gen. Sts. c. 114, § 4 296 Xentucky, Dec. 19, 1796, § 13 201 Dec. 17, 1821, § 6 . ... 203, 205, 206 Civil Code, § 474 206 Michigan, Comp. Laws (1871), §§ 4124, 4126, 5060, 6061 296 Minnesota, Rev. Sts. (1866), c 43, §§ 11, 13, 19 . . . 296 New Jeksey, Rev. Sts. of 1877, p. 120, § 88 . . . .191 New Yoek, Part 2, c. 1, tit. 2, art. 2 . . 281, 282, 283 § 45 281 § 55 . . 281, 283 § 57 . . 281, 287 § 63 . 281, 282, 286 § 65 ... 281, 282 c. 4, §§ 1, 2 286 Part 3, c. 1, tit. 2, art. 2, § 38 281, 283, 287-289 § 39 . 281, 287-289 Tennessee, Code, §§ 4282-4284 . . . . 189, 189 i Wisconsin, Rev. Sts. (1878), §§ 2071, 2081, 2083, 2089, 3029 296 SUGDEN, Sir E. B., opinion on restraining the alienation of equitable life interests . . . . .... 148 SUMMARY 279 Tenant EOR LIEE. See Estate ros Life. TENANT EOR YEARS. See Estate foe Yeaes. TENNESSEE, cases on restraining the alienation of equi- table life interests .... 175, 177, 178, 189-189 b, 213 TERM EOR YEARS. See Est.vte foe Years. TRUSTEE PROCESS. See Attachment. U' NITED STATES COURTS. See Eedekal Couets. INDEX. 217 SECTION V ERMONT, case on restraining the alienation of equitable life interests 175, 177, 178, 212, 213 VIRGINIA, cases on restraining the alienation of equitable life interests 175, 176, 241-249 W ISCONSIN, case on restraining the alienation of equita- ble life interests 175, 177, 178, 194 «, 213 University Press : John Wilson & Son, Cambridge.