Sanders v. Mamolen

Per Curiam:, The testatrix devised four-sevenths of her estate to her daughter, but provided “ that no part or parcel of said property be sold or disposed of until after the death or demise of my daughter, Sarah A. Davis, but that it be rented or leased and the sum realized to be divided according to the above provisions.” On this branch of the case the learned judge below well says : “ As a restriction of alienation on the grant of a fee is against the general rule of law, it must be construed strictly, and it requires no very strict construction of the will in question to read it as not being a restriction upon Sarah A. Davis, herself, but only a direction of the testatrix to her executors. It will be observed that the testatrix puts her personal property and the land in question into a common fund for the payment of her debts, and then directs, not that her daughter shall not sell, but that the property shall not be sold till after her daughter’s death, and, in the codicil, directs that if it becomes necessary to sell it, then her daughter shall have a certain share. We think there can be little question that the testatrix did not intend that her daughter, who was the principal object of her bounty, as she says, should not sell, but that the land should not be sold for the purpose of the will unless it was necessary.” But in addition to this the testatrix by a codicil provided : “ That if it becomes necessary to dispose of or sell my real estate prior to or after my death, my daughter, Sarah A. Davis, shall be entitled to and is hereby authorized to lift and receive her portion annually until the death of her husband, William Davis, after which she is to receive the full amount of her share.” William Davis, the husband, is now dead, and it thus appears that there is a power of sale, with an absolute right in Sarah Davis or her assignee to receive the proceeds. The title is good under the codicil without regard to the previous provisions of the will. Judgment affirmed.