sion was inserted only as a threat. But although con sent may be dispensed with under the above rule, yet if marriage by consent be a condition precedent, the property can not be claimed until marriage has taken place." 8 If forfeiture be occasioned by breach of the condition, subsequent approbation, not being equivalent of consent, does not cure the defect." If the consent of several persons is required, the consent of a majority will not suffice. It is necessary that all of the executors or trustees living at the time, or who have not renounced their offices,10 should give their assent to the marriage. Of course, if the person whose consent is required die before giving it, the condition is released,11 but the condition is not released by the failure of the testator to appoint a guardian. Thus, where there was a condition of forfeiture upon marriage of a daughter of the testator before twenty-one without consent of her guardian,' and there was no guardian, and the daughter married under age, the bequest was forfeited, it being held that a guardian could have been appointed by the court and that the testator, from the language of the will, must be taken to have contemplated such an appointment.12 5 Duddy v. Gresham, L. R. 2 Ir. 442; Harmon v. Brown, 58 Ind. 207; In re Carr's Estate, 138 Pa. St. 352, 22 Atl. 18; Maddox v. Maddox's Admr., 11 Gratt. (Va.) 804; Reuff V. Coleman's Heirs, 30 W. Va. 171, 3 S. E. 597. See § 1055. 6 Garbut v. Hilton, 1 Atk. 381. 7 Clarke v. Parker, 19 Ves. Jun. 1: Long v. Ricketts, 2 Sim. & St. 179; Reynish v. Martin, 3 Atk. 330. 8 Clarke V. Parker, 19 Ves. Jun. 1. 9 Worthington v. Evans, 1 Sim. & St. 165; Boyce v. Corbally, Ll. & G. t. Plunk. (Ir.) 102. 10 Graydon v. Hicks, 2 Atk. 16. 11 Jones v. Suffolk, 1 Bro. C. C. 528; Peyton v. Bury, 2 P. Wms. 626. 12 In re Brown's Will, L. R. 18 Ch. Div. 61. § 1070. The Same Subject. The guardian, trustee, or other person whose consent is required for the marriage of a beneficiary may not make arbitrary use of his power; however, there is no presumption of fraud or bad faith should he withhold his consent, even though he be benefited by the failure of the beneficiary to marry. But equity will step in, as in the case of other trustees, and remove a person who attempts to usurp his authority for corrupt ends.13 Likewise, equity will relieve against unjust forfeiture, the beneficiary not being at fault, but the result being occasioned either by reason of the fraud or negligence of the person appointed to give consent. 14 The consent of the trustee, when given, can not be revoked unless procured by fraud.15 And consent may be presumed from actions or silence.16 If, however, the will provides that consent must be given in a specified manner, such as in writing, the condition must be fulfilled;17 however, form is immaterial unless demanded by the will.18 § 1071. Conditions Repugnant to Estate Given Are Void. Conditions repugnant to the estate to which they are annexed are absolutely void. A condition that a devisee in fee shall not mortgage the property is repugnant to the absolute nature of the gift;19 and a stipulation that 13 Dashwood v. Lord Bulkeley, 10 Ves. Jun. 230; Goldsmid v. Goldsmid, G. Cooper 225. 14 Malloon v. Fitzgerald, 3 Mod. 28; O'Callaghan v. Cooper, 5 Ves. Jun. 117. 15 Dillon ▼. Harris, 4 Bligh (N. S.) 324; Le Jeune v. Budd, 6 Sim. 441; D'Aguilar v. Drinkwater, 2 Ves. & B 225. 16 Keeling v. Smith, L. R. 44 Ch. Div. 654; Pollock v. Croft, 1 Mer. 181; In re Birch, 17 Beav. 358. 17 Clarke v. Parker, 19 Ves. Jun. 1, 12. 18 Worthington v. Evans, 1 Sim. & St. 165. 19 Ware v. Cann, 10 Barn. & C. 433; Gleason v. Fayerweather, 4 no annuity shall be charged upon an estate devised in fee is void.20 The rule is the same where a restriction is attempted to be placed against the wife or husband of the devisee in fee taking a dower or curtsey in the land devised.21 A gift over in the event that the one to whom land is devised in fee shall die intestate, is void.": 22 Where by the terms of the will the gift is absolute and in præsenti, the title passes to the beneficiary and any provision against a sale, division, or incumbrance is repugnant to the title in the estate thus granted, and is void.23 A requirement that land devised in fee shall be forever leased at a prescribed rental, or be cultivated in a particular manner, is repugnant to the absolute nature of the devise.24 The power of alienation is incident to life interests and estates as well as to those given absolutely or in fee, and any attempt to restrict Gray (70 Mass.) 348; Hall v. Tufts, 18 Pick. (35 Mass.) 455; Walker v. Vincent, 19 Pa. St. 369; Lawrence v. Singleton, (Tenn.) 17 S. W. 265; Laval v. Staffel, 64 Tex. 370. Where an estate is given to a remainderman with the limitation that he should "never mortgage, rent, or sell said parcel of land," the restraint is void as being repugnant to the nature of the fee.Freeman v. Phillips, 113 Ga. 589, 38 S. E. 943. 20 Willis v. Hiscox, 4 Myl. & C. 197, 201. 21 Mildmay's Case, 6 Coke 40a; Portington's Case, 10 Coke 35b. Contra: Haight v. Hall, 74 Wis. 152, 17 Am. St. Rep. 122, 3 L. R. A. 857, 42 N. W. 109. 22 In re Wilcocks' Settlement, L. R. 1 Ch. Div. 229; Hill v. Downes, 125 Mass. 509. As to a gift over of what remains unexpended by a devisee, see § 930. If an estate be so given as to vest the title immediately upon the testator's death, with the enjoyment of possession only postponed, a condition that it shall pass to others on the death of the first legatee before the time of coming into possession is void.— Martin v. Martin, 12 Jur. N. S. 889. 28 Lovett v. Gillender, 35 N. Y. 617. 24 Attorney-General v. Master & Fellows of Catherine Hall, Jacob 380, 395. the power of alienation, whether applied to an absolute interest or to a life estate, is invalid.25 § 1072. General Restraint Upon Alienation Void. The right of alienation is an inherent and inseparable quality of an estate in fee-simple; it is an incident of ownership. Any condition or restriction suspending all power of alienation of land devised in fee simple would be repugnant to the estate granted and therefore void.26 25 Rochford v, Hackman, 9 Hare 475, 480; Brandon v. Robinson, 18 Ves. Jun. 429; Graves v. Dolphin, 1 Sim. 66; Hall v. Tufts, 18 Pick. (35 Mass.) 455. 26 Litt., § 360; Coke Litt. 206b, 223a; 4 Kent Com. *131; Ware v. Cann, 10 Barn. & C. 433; In re Machu, L. R. 21 Ch. Div. 838; Marshall v. Aizlewood, 43 L. T. N. S. 752; Gallinger v. Farlinger, 6 U. C. C. P. 512; In re Thomas, 30 Ont. 49; Potter v. Couch, 141 U. S. 296, 35 L. Ed. 721, 11 Sup. Ct. 1005; Prey v. Stanley, 110 Cal. 423, 42 Pac. 908; Henderson v. Harness, 176 Ill. 302, 52 N. E. 68; Becker v. Becker, 206 Ill. 53, 69 N. E. 49; Allen v. Craft, 109 Ind. 476, 58 Am. Rep. 425, 9 N. E. 919; Langman v. Marbe, 156 Ind. 330, 58 N. E. 191; Brookover v. Branyan, (Ind.) 112 N. E. 769; Powers v. Wells, 244 Ill. 558, 91 N. E. 717; Harkness v. Lisle, 132 Ky. 767, 117 S. W. 264; Jones v. Bacon, 68 Me. 34, 28 Am. Rep. 1; Winsor v. Mills, 157 Mass. 362, 32 N. E. 352; Mandlebaum v. McDonell, 29 Mich. 79, 18 Am. Rep. 61; Feit v. Richards, 64 N. J. Eq. 16, 53 Atl. 824; Oxley v. Lane, 35 N. Y. 340; Pace v. Pace, 73 N. C. 119; Harker's Appeal, 60 Pa. St. 141; Yard's Appeal, 64 Pa. St. 95; Manierre v. Welling, 32 R. I. 104, Ann. Cas. 1912C, 1311, 78 Atl. 507; Diamond v. Ro tan, (Tex. Civ.) 124 S. W. 196; Deepwater R. Co. v. Honaker, 66 W. Va. 136, 27 L. R. A. (N. S.) 388, 66 S. E. 104. See § 931. As to cutting down a devise in fee by subsequent provisions in the will, see §§ 932-934. Where a devise is made to a town for the support of a public school for the benefit of the inhabitants, with a condition excluding certain named persons and their descendants from the school, the devise is good as to all the inhabitants and the condition is repugnant to the nature of the grant and is void, as contrary to law and public policy.-Nourse v. Merriam, 8 Cush. (62 Mass.) 11. In Maine, when after a gift of a residue to the widow in terms importing a fee, on her decease For the same reason a limitation over in case the first devisee should alienate the property would be equally void, whether the estate be legal or equitable.27 Such an absolute restraint on all alienation would be a nullity even though not in conflict with the rule against perpetuities. On principle and according to the weight of authority, a restriction, whether by way of condition or of devise over, not forbidding alienation to particular persons or for particular purposes only, but against any and all alienation during a limited time, is void as repugnant to the estate devised to the first taker, because it deprives him during that time of the inherent power of alienation.28 The principle likewise applies to an absolute in the remainder was given to others, the ulterior devise was decided to be void.-Mitchell v. Morse, 77 Me. 423, 52 Am. Rep. 781, 1 Atl. 141. 27 Ware v. Cann, 10 Barn. & C. 433; Shaw v. Ford, L. R. 7 Ch. Div. 669; In re Dugdale, L. R. 38 Ch. Div. 176; Corbett v. Corbett, L. R. 13 Pro. Div. 136; Howard v. Carusi, 109 U. S. 725, 27 L. Ed. 1089, 3 Sup. Ct. 575; Kelley v. Meins, 135 Mass. 231; Steib v. Whitehead, 111 Ill. 247. Compare: Smith v. Bell, 6 Pet. (U. S.) 68, 8 L. Ed. 322; Williams v. Ash, 1 How. (U. S.) 1, 11 L. Ed. 25, which two cases were distinguished in Potter v. Couch, 141 U. S. 296, 316, 35 L. Ed. 721, 11 Sup. Ct. 1005. 28 Rosher v. Rosher, L. R. 26 Ch. Div. 801; Potter v. Couch, 141 U. S. 315, 35 L. Ed. 721, 11 Sup. Ct. 1005; Hill v. Gray, 160 Ala. 273, 49 So. 676; Jones v. Port Huron Engine & T. Co., 171 III. 502, 49 N. E. 700; Johnson v. Preston, 226 Ill. 447, 10 L. R. A. (N. S.) 564, 80 N. E. 1001; Winsor v. Mills, 157 Mass. 362, 32 N. E. 352; Bennett v. Chappin, 77 Mich. 526, 538, 7 L. R. A. 377, 43 N. W. 893; Casgrain v. Hammond, 134 Mich. 419, 104 Am. St. Rep. 610, 96 N. W. 510; Morse v. Blood, 68 Minn. 442, 71 N. W. 682; Kessner v. Phillips, 189 Mo. 515, 107 Am. St. Rep. 368, 3 Ann. Cas. 1005, 88 S. W. 66; Feit V. Richards, 64 N. J. Eq. 16, 53 Atl. 824; Roosevelt v. Thurman, 1 Johns. Ch. (N. Y.) 220; Twitty v. Camp, 62 N. C. 61; Latimer v. Waddell, 119 N. C. 370, 3 L. R. A. (N. S.) 668, 26 S. E. 122; Anderson v. Cary, 36 Ohio St. 506, 38 Am. Rep. 602; Shower's Estate, 211 Pa. St. 297, 60 Atl. 789; Manierre v. Welling, 32 R. I. 104, Ann. Cas. 1912C, 1311, 78 Atl. 507; Zillmer v. Landguth, 94 Wis. 607, |