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(1.) Property cannot be given absolutely, or for life, without the
power of alienation
(2.) An estate may be so framed as to cease upon a particular
event, whether given over to others or not
(3.) Important distinction between an estate to ceasc upon bank-
ruptcy and a condition against alienation
PAGE
668
(4.) So also between voluntary alienation and by act of law
18. But the limitation of an estate bequeathed must be clearly expressed, or
the courts will construe it a condition
19. There is no doubt property may be bequeathed for the sole use of the
donee, so that creditors shall have no benefit from it
20. One properly interested in the person may annex any reasonable con-
dition to the gift of property to such person, although operating in
restraint of marriage
n. 36. Great conflict in the cases. Lord Loughborough's commentary upon
them.
669
21. Such conditions operate differently, whether the property is real or
personal
22. Enumeration of cases where conditions in restraint of marriage held
reasonable
670
23. Eminent writers and judges question whether the refinements on this
subject will be followed
671
24. Such conditions subsequent not valid. Dispensing with consent does
not with marriage
25. Residuary clause not equivalent to bequest over, unless provided to fall
into residuum
672
26. Such marriage with consent may not refer to first marriage, but com-
monly does
27. Consent of all required, unless they have refused to act, or have de-
ceased
672,
28. Late cases stated. Conditions tending to separation between husband
and wife void
673
29. Any condition restraining testator's widow from marriage valid
30. Statement of what conditions restraining marriage are valid
674
676
31. Exposition of the doctrine of in terrorem conditions by Lord Cran-
worth. Synopsis of the general rules deducible from the cases
32. Where the donee is required to assume a new name, it may be done by
reputation
33. Residence in a particular house satisfied by such residence as the crea-
tion of domicil requires
678
34. Conditions against disputing will valid, but English cases in confusion
35. American cases not so numerous, and mere repetitions of the English
679
cases
36. The character of conditions determined by the general intent of tes-
37. The American cases hold any restraint upon the use or alienation of the
estate void
38. It is easy so to frame a declaration of trust, as not to allow the first
donee the power of alienation
39. An absolute condition against alienation void, but may be rendered
valid through the agency of a trust. Other illustrations
680
681
40. Conditions in a devise become binding upon devisee by acceptance
41. Decision of New York Court of Appeals upholding a trust for exclusive
personal use. Subject further discussed
42. Condition in restraint of marriage void, being no valid gift over
43. Conditions in the will embrace those in an after codicil
44. Restrictions against alienee limited to first donee, unless otherwise ex-
pressed
84
45. Condition for good behavior of devisee, if intelligible, is valid
35
46. Words importing present interest in donee render all conditions subse-
quent
685
47. The words must control conditional limitations
48. Devises of realty on conditions in restraint of marriage valid, but not as
to personalty.
49. The legatee upon condition is not bound to elect to accept the legacy
until he has full opportunity to know its burdens
50. The question of the responsibility incurred by accepting conditional
legacy further discussed
686
51. Where testator prevents performance of condition subsequent, legacy
takes effect
SECTION IV.
WHAT WORDS WILL CARRY REAL ESTATE.
1. The words "estate," and "property," generally sufficient to pass real
estate
688
2. But the word "effects" will not produce that result, unless qualified,
3. Enumeration of some cases, illustrating the preceding rules
689
4. To restrict the word "estate" to personalty, there must be a clear ex-
pression of intention
5. It will not have that effect even when associated with words descriptive
of personalty only
6. Cases illustrative of the last preceding rule
690
7. Strong case of departure from the maxim, ejusdem generis
8. The early rule was to construe these general terms according to their
association
9. Sometimes an enumeration of particulars following the words may limit
the sense
10. Explanation of some cases where general words in a codicil were re-
stricted
11. These general words now held to include realty, unless the contrary
appear.
12. A devise to the person made executor receives the same construction
as one to any other
13. Some cases have restricted those general terms, by the import of rela-
tive terms following .
693
14. But the rule is now established that such words should have their
natural force
15. Some few cases seem to favor the former construction.
16. Sir J. Romilly favors that view, to some extent
17. Some of the cases have made a distinction between the devise and the
18. Entirely general terms, having no special application to real estate, will
694
695
accompanying trusts.
19. But some few cases have attempted to restrict the application of such
terms.
696
20. It sometimes happens that words appropriate to personalty may carry
realty
21. “Legacy,” and “residuary legatee," used with reference to real estate
22. Even terms of an exclusively personal import may carry real estate
23. The courts in America follow the English cases upon these questions.
New York
WHAT WORDS IN A WILL ARE SUFFICIENT TO CREATE A FEE.
RULE IN
SHELLY'S CASE.
1. A general devise of real estate will only convey an estate for life
2. Such a rule of construction defeats the intent of the testator. English
and some American statutes restore it
3. The rule in Shelly's Case as applied to devises has led one side of the
truth generally.
704
4. Any charge upon the devisee will convert the estate into a fee
5. But if the charge be upon the land merely, it will not have that effect
705
6. Life-estates and annuities considered in this connection
7. A devise over will often enlarge the general devise
706
PART II.
8. But the devise over being general will carry a life-estate, thus defeat-
ing the general estate pro tanto
9. And where a codicil revokes a devise in fee, and devises same estate
generally, it creates only a life-estate
707
10. In trust estates, a fee given either to trustee, or cestui que trust, will
make the other a fee.
11. Any form of expression showing such intention will pass a fee
12. The courts seize any plausible excuse to rescue particular cases from
the general rule
708
13. The word "estate," whether connected with locality or not, will pass a
fee.
14. The distinction between the word estate' as descriptive of the cor-
pus, and of the title, not regarded
15. The court incline to refer the word estate to the title
16. The fact that the word is associated with locality and used with express
limitation in other places, will not vary effect
17. The devise of the rents of an estate will pass the fee
710
711
18. But these general words, "estate," "property," &c., must form the
pivot of the devise
19. It is said the word "estate " in the introductory clause of the will has
no effect
20. The word "estate" allowed to pass a fee whenever it can fairly re-
ceive that construction
21. But if it occur in the description of the life-estate only, will not have
that effect.
712
23. The word "estate" will be restricted to a life-estate, where it would
otherwise cut off other estates
24. The terms, "property" and "real effects" construed the same as
"estate"
25. Enumeration of many words which will, and some which will not, pass
a fee
26. The word reversion will pass a fee, but not the words "residue and
remainder" in a residuary devise
27. Devise of all "right," "title," or "interest," or of the testator's moi-
ety," or "part," or "share," will pass a fee
714
28. An exception, condition, or qualification of the devise, may show that
a fee was meant
29. Devise of "advowson," " manor," and "share," will pass a fee
30. Devise of property in tail, not liable to such devise, passes a conditional
fee
31. The present English statute presumes a fee intended, unless the con-
trary appear. Commentary
32. The American cases upon both parts of this chapter presented together
33. To convert a general devise into a fee, there must be a charge upon the
devisee or something else
34. Devise to executors to sell and pay the avails to devisee creates fee in
35. Devise over, without words of inheritance, carries only life-estate
716
36. What kind of charge upon the devisee will give a fee by implication
37. The Revised Statutes of New York convert a general devise into a fee
38. The general rules of the common law upon this subject prevail in
Massachusetts.
718
719
39. In North Carolina the operation of general words in a devise is greatly
restricted.
40. A devise will be construed to carry such an estate as is requisite for
the object
720
41. The effect of using words of entailment, in regard to personalty, to cre-
ate an absolute title
42. Illustration of the rule by the cases in Pennsylvania
43. Discussion of the rule in Shelly's Case, as applied in America
721
n. 120. Discussion of the question in two cases in Vermont
722
44. Statement of the decisions in Connecticut upon this point.
723
45. The rule qualified in Pennsylvania by the courts, and in New York by
statute
46. The Connecticut courts favor the construction of general devises giv-
ing a fee
728
47. General devise of uncultivated lands will carry fee. Effect of devise
to the heir
48. The word "estate," in America, held a word of the greatest extension
49. Statement of other cases confirming the general rules before stated
50. The word "appurtenances," or a condition, may carry a fee
51. A bequest of personalty absolutely to one, and then in remainder to
another, gives only a life-interest to the first.
729
52. Other cases illustrating the same question.
730
53. Prefatory words in a will may aid the construction of other words, but
are inoperative in themselves.
54. Clear life-estate in personalty enlarged by absolute power of disposition
55. Estate may be given in trust to an insolvent son, for the benefit of his
children at his death
731
732
56. General intent may create an estate in fee, without words of limitation
57. Where the income of the residue is directed to be paid testator's chil-
dren, and the corpus divided among grandchildren, if any, it creates
a fee-simple in the children
58. But where an aliquot portion of the whole estate is so devised, the first
devisee takes only a life-estate
733