Jones v. Port Huron Engine & Thresher Co.

Mr. Justice Wilkin delivered the opinion of the court: This is an appeal from an order and decree of the county court of McLean county in the matter of the estate of appellant, assigned by him to P. M. Jones, assignee, under the general Assignment law of this State. On the 20th day of January, 1897, appellant made a general assignment for the benefit of his creditors, but did not include in his schedule of property certain real estate which it is contended should have been included. On petition of certain creditors, who are the appellees herein, a decree was rendered by the court below in effect declaring the real estate in question to be the absolute property of Ward B. Jones, and ordering it to be included in the schedule of his assets. It is conceded that whatever intérest the assignor had in the property at the time of the assignment was derived as devisee under the will of his father, Nelson Jones. The second and tenth clauses of the will affect this property, and are as follows: “Second—I give, devise and bequeath to my son Ward B. Jones the following described.real estate, to-wit, (describing it,) said Ward B. Jones to have and to hold said lands in fee simple, subject to the limitations and restrictions hereinafter in this will contained.” “Tenth—I will and direct that said real estate above described, given to my said five children, and each and every piece and parcel thereof, shall be taken and held by my said children, respectively, without any power to sell or mortgage or create any liens upon the same, or any part thereof, for the period of thirty years after my decease; and I hereby prohibit any such sale or sales, mortgaging or creating any lien or liens on said lands, for said period of thirty years after my death, and no judgment or decree of any court of law or equity against my said children shall, within said period of thirty years after my decease, be a lien on any of said lands or any piece or parcel thereof, nor shall said lands, or any part or pai-cel thereof, be subject to levy or sale under a writ of execution or attachment against any or either of my said children for said period of thirty years after my decease, but in case of death of any one of my said children within the period of nine years after my decease, then and in that case only the lands herein willed to said deceased child may be sold or mortgaged or become subject to a lien at and after the expiration of twenty-one years from the death of such child, but not before.” Both parties concede that the only question presented here is, what effect have the provisions of clause 10 upon the devise contained in clause 2 ? It is admitted that the estate devised to appellant was a fee, but his counsel contend that it was a base or determinable fee. This position is untenable. In a base or determinable fee there is always a possibility of the determination of the fee upon the happening of an uncertain event. (1 Broom & Hadley’s Com. 551.) Here there is in express terms a grant in fee simple,—an immediate vesting of title,—with no condition subsequent or limitation over to defeat the estate of appellant. An attempt is made to grant an absolute fee simple estate, and by subsequent apt words to prevent certain consequences of the ownership of property from attaching thereto. This, we think, upon principle and the abundant weight of authority, cannot be done. In a devise of land in fee simple a condition against all alienation is void, because repugnant to the estate devised. (Potter v. Crouch, 141 U. S. 315; Lit. par. 360; Coke’s Lit. 2066, 223a; 4 Kent, 131; McDonough v. Murdock, 15 How. 367.) A restriction, whether by way of condition or of devise over or against alienation, although for a limited time, of an estate in fee is likewise void, as repugnant to the estate devised to the first taker, by depriving him, during that time, of the inherent power of alienation. (Steib v. Whitehead, 111 Ill. 247; Potter v. Crouch, 141 U. S. 315; Roosevelt v. Thurman, 1 Johns. Ch. 220; Mandlebaum v. McDonell, 29 Mich. 78; Anderson v. Cary, 36 Ohio St. 506; Norris v. Hensley, 27 Cal. 439; Blackstone Bank v. Davis, 21 Pick. 42; 13 Am. & Eng. Ency. of Law, 794.) We find no exceptions to this rule. There is some conflict in the decisions of courts applying the rule to life estates, (Nichols v. Eaton, 91 U. S. 716,) but as to estates in fee simple they are uniform. From the weight of authority we must hold that the restrictions contained in clause 10 of the will are repugnant to the” fee granted in clause 2 thereof, and the judgment of the county court will be affirmed. . Judgment affirmed.