terest in personal property or in chattels real disposed of by will in a like manner.29

§ 1073. Limiting or Prohibiting Conveyance to Particular Person or Class: English Decisions.

30

A condition in general restraint of alienation is void, yet partial restrictions have been upheld. There is, however, a decided conflict of authority. In an early English case a restriction that the devisee, in the event of having no lawful issue, should have no power to dispose of her interest in the property devised except to her sister or sisters or to their children, was upheld. This principle was approved some seventy years later in a case where a devise to the testatrix's brother on condition that he should never sell it out of the family, was upheld on the ground that the condition, being limited as to time to the life of the first tenant, was not void for remoteness, and being limited as to the mode of alienation, prohibiting the sale only and not the leasing, mortgaging, and the like, was a limited restriction only and valid.31

69 N. W. 568; McCravey v. Otts, 90 S. C. 447, 74 S. E. 142.

The fact that a restraint or restriction is limited in duration does not of itself make such restraint valid, if it is otherwise unreasonable or so general in its scope and effect as to make it substantially an absolute restraint of alienation during such limited time. - Manierre v. Welling, 32 R. I. 104, Ann. Cas. 1912C, 1311, 78 Atl. 507.

29 Bradley v. Peixoto, 3 Ves. Jun. 324; McCleary v. Ellis, 54 Iowa 311, 37 Am. Rep. 205, 6 N. W.

571; Blackstone Bank v. Davis, 21 Pick. (38 Mass.) 42, 32 Am. Dec. 241.

30 Doe d. Gill v. Pearson, (A. D. 1805) 6 East 173.

31 In re Macleay, L. R. 20 Eq. 186.

A devise of lands, subject to the payment of certain legacies and a support to the testator's wife, with the condition that the devisees should not sell or transfer the property during the lifetime of the widow without her written consent, was upheld on the ground that a condition not to alienate to

In conflict with the foregoing, a condition that the devisee should never sell the property out of the family, but if sold at all it should be sold to one of his brothers, was held invalid as repugnant to the estate devised. The court said that if the introduction of one person's name as the only person to whom property could be sold, renders such a proviso valid, a restraint on alienation may be created as if no person was named, inasmuch as the testator could designate one who he is reasonably certain would not purchase the property.32 This was followed in a later case where a covenant by the grantee of lands that he, his heirs and assigns, would not alienate, 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 void. And in another case

it was held that a condition annexed to a devise in fee, that if the devisee should desire to sell at any time during the life of the testator's widow, she should have the option to purchase at a price which was far less than the actual value of the property, amounted to an absolute restraint upon alienation during the widow's life and was void, the devisee having the right to sell without first offering the property to her at the specified price.34

a particular person or for a particular time, and inserted for the purpose of securing a legacy or benefit to a beneficiary under the will, is valid.-Earls v. McAlpine, 27 Grant's Ch. (U. C.) 161.

32 Attwater v. Attwater, (A. D. 1853) 18 Beav. 330. To the same effect, see Muschamp v. Bluet, Bridg. J. 132, 137.

33 Billings v. Welch, I. R. 6 C. L. 88.

A condition "that my three sons, M., H. & G., shall not be at liberty to sell any part of my homestead farm herein willed except to each other and so descend to their heirs to the third generation," was held invalid.-Gallinger v. Farlinger, 6 U. C. C. P. 513.

84 Rosher v. Rosher, L. R. 26 Ch. Div. 801, commenting upon In re Macleay, L. R. 20 Eq. 186, explaining Large's Case, 2 Leon. 82; s. c., 3 Leon. 182.

§ 1074. The Same Subject: American Decisions.

The American authorities are likewise in conflict. There is a line of cases holding that a limited restraint for a reasonable period of time is a valid restriction.35 These cases seem to be founded on a misconception of the early English decision in Large's Case.36 This case was first cited as holding that a grantee may be restrained from alienating for a particular time.37 It has been said that this was an evident misapprehension since the case does not so hold, and that therefore it is unimportant by whom and how many times it may have been improperly cited.3" On the other hand, however, it has been said that it has been so often cited that it is now too late to go back and

35 Langdon v. Ingram's Guardian, 28 Ind. 360; Andrews v. Spurlin, 35 Ind. 262 (obiter); Stewart v. Brady, 3 Bush (66 Ky.) 623; Wallace v. Smith, 113 Ky. 263, 24 Ky. L. Rep. 139, 68 S. W. 131; Call v. Shewmaker, 24 Ky. L. Rep. 686, 69 S. W. 749; Smith v. Isaacs, 25 Ky. L. Rep. 1727, 78 S. W. 434; Harkness v. Lisle, 132 Ky. 767, 117 S. W. 264; Blackstone Bank v. Davis, 21 Pick. (38 Mass.) 42, 32 Am. Dec. 241; Dougal v. Fryer, 3 Mo. 40, 22 Am. Dec. 458; Collins v. Clamorgan's Admr., 5 Mo. 273; Cornelius v. Den, 26 N. J. L. 376 (obiter); Jackson v. Schutz, 18 Johns. (N. Y.) 174, 9 Am. Dec. 195 (obiter); De Peyster v. Michael, 6 N. Y. 467, 57 Am. Dec. 470; Munroe v. Hall, 97 N. C. 206, 1 S. E. 651; Ex parte Watts, 130 N. C. 237, 41 S. E. 289; M'Williams v. Nisly, 2 Serg. & R. (Pa.) 507, 7 Am. Dec.

38

654; Jauretche v. Proctor, 48 Pa. 466.

36 2 Leon. 82; s. c., 3 Leon. 182. 37 Sheppard's Touchstone, p. 190 (Am. ed. of 1808).

38 Mandelbaum v. McDonell, 29 Mich. 78, 18 Am. Rep. 61, wherein the court further says: "We are entirely satisfied that there never has been a time since the statute quia emptores when a restriction in a conveyance of a vested estate in fee simple, in possession or remainder, against selling for a particular period of time, was valid by the common law.

It is safe to say that every estate depending upon such a question would, by the very fact of such a question existing, lose a large share of its market value. Who can say whether the time is reasonable until the question has been settled in the court of last

reconstruct the text books and decisions, and that the construction given it heretofore has become a rule of property.39

A prohibition against a devisee conveying the property except to one person is arbitrary, unreasonable and invalid.40

§ 1075. Restraining Alienation Until Donee Reaches a Certain

Age.

A prohibition against alienation until the expiration of a defined and not too remote a period of time has been upheld." Alienation has been validly prohibited until the majority of the devisee;+2 and until the devisee shall attain the age of thirty-five years has been considered as not too remote.48 But restraints upon alienation of vested remainders before the termination of the particular estate have been held void."

resort; and upon what standard of certainty can the court decide it?" 39 Neil, J., in Fowlkes v. Wagoner, (Tenn.) 46 S. W. 586.

40 Schermerhorn v. Negus, 1 Denio (N. Y.) 448.

A clause in a will giving a preference of purchase to brothers of the devisee did not deprive the devisee of the absolute power of sale of his share.-Bing v. Burrus, 106 Va. 478, 56 S. E. 222.

41 Churchill v. Marks, 1 Coll. C. C. 441; Graham v. Lee, 23 Beav. 388; In re Payne, 25 Beav. 556; Langdon v. Ingram's Guardian, 28 Ind. 360; Stewart v. Barrow, 7 Bush (70 Ky.) 368; Blackstone Bank v. Davis, 21 Pick. (38 Mass.) 42, 32 Am. Dec. 241; McWilliams

v. Nisly, 2 Serg. & R. 507, 513, 7 Am. Dec. 654.

Contra: Mandlebaum v. McDonell, 29 Mich. 78, 18 Am. Rep. 61, q. v. and authorities there reviewed and criticised.-Anderson v. Car, 36 Ohio St. 506, 38 Am. Rep. 602.

42 Smithwick v. Jordan, 15 Mass. 113; Claflin v. Claflin, 149 Mass. 19, 14 Am. St. Rep. 393, 3 L. R. A. 370, 20 N. E. 454.

43 Stewart v. Brady, 3 Bush (66 Ky.) 623; Claflin v. Claflin, 149 Mass. 19, 14 Am. St. Rep. 393, 3 L. R. A. 370, 20 N. E. 454. Contra: Twitty v. Camp, 62

N. C. 61.

44 Hall v. Tufts, 18 Pick. (35 Mass.) 455, 460.

§ 1076. Restrictions on Alienation Do Not Follow the Land.

Restraints upon alienation, except where the restriction is that it shall not be transferred to a certain individual or to a certain class, are personal to the first devisee and do not follow the land;45 and it has been held that a condition that none of the property should ever pass to the testator's sister or her descendants could not follow the property into the hands of any one upon whom it might devolve through the operation of the limitation attached to the condition.40

§ 1077. Construction of Provisions Restraining Alienation.

Any limitation or partial restraint which violates the rule against perpetuities is void. Restrictions on the power of alienation are not favored, and the policy of the law is to construe them with the utmost strictness to the end that the restraint shall not be extended beyond the express stipulation, and all doubts must be resolved in favor of the free use of the property.18 Clauses im

45 McKinster v. Smith, 27 Conn. 628.

46 Bradford v. Leake, 124 Tenn. 312, Ann. Cas. 1912D, 1140, 137 S. W. 96.

47 Saulsberry v. Saulsberry, 140 Ky. 608, 131 S. W. 491; Stewart v. Woolley, 121 App. Div. 531, 106 N. Y. Supp. 99; Walter v. Walter, 60 Misc. Rep. 383, 113 N. Y. Supp. 465; affirmed in 133 App. Div. 893, 118 N. Y. Supp. 268.

48 Illinois Christian Missionary Soc. v. American Christian Missionary Soc., 277 Ill. 193, 115 N. E. 118; Brothers v. McCurdy, 36 Pa. St. 407, 78 Am. Dec. 388; Fisher v. Wister, 154 Pa. St. 65, 25 Atl. 1009.

A testator may prohibit the alienation or encumbrance of a devised estate within the limitations prescribed by the statute, but in all cases where the question arises whether there is such a prohibition or not, as well as the extent of it, must depend on the intention as expressed in the will, and unless the intention is clearly found to exist the prohibition will not be declared to exist.-Lindemeier v. Lindemeier, 91 Ky. 264, 15 S. W. 524; Gillespie v. Winston's Trustee, 170 Ky. 667, 186 S. W. 517; Sparrow v. Sparrow, 171 Ky. 101, 186 S. W. 904.

Where the condition is against