76 Va. 140 | Va. | 1882
delivered the opinion of the court.
In Taylor v. Cleary and others, 29 Gratt. 448, while it was decided that Thomas J. D. Reilley took, under the Dona-ghee deed, a life estate only in the mausoleum lot, and not an estate in fee simple under the rule in Shelly’s case, sought to be applied, the court expressed no opinion “ in regard to the condition in restraint of alienation mentioned in said deed, and the effect of the supposed breach thereof, it being unnecessary, in the opinion of the court, to decide in that case any question concerning the same ” (p. 454).
The present case makes it necessary to decide now what it was unnecessary to decide then.
The condition referred to is in these words: “ For that, whereas, I have erected upon the said piece of land a very expensive monument or mausoleum, which I regard with
The grantee (Thomas J. D. Reilly) committed a breach of the above recited condition by alienating a part of the mausoleum lot, and the plaintiffs .in this action, as heirs of Elizabeth M. D. Reilly, claim title by reason of the breach to the land in controversy, which is a portion of the two lots described as conveyed to the grantee in fee.
It is contended for the plaintiffs in error (who were defendants below) that the condition on which the limitation to Elizabeth M. D. Rielly depends is illegal and void, first, because repugnant. Conditions are said to be repugnant when they are incompatible with the legal nature and incidents of the estate to which they are annexed. 2 Minor’s Inst. (2d Ed.), 249. One of these incidents, the most important perhaps, is the power of alienation. It may be restricted to a limited extent; for instance, as to certain designated persons, or, it is said, for a reasonable time (though the latter proposition is disputed by some—Wordlebaum v. McDowell and others, 29 Mich. 78); but an absolute and unqualified restraint as to estates generally, whether legal or equitable, is inadmissible. An established exception exists in regard to the equitable separate estates of married women, which estates are the creatures of a court
It seems, however, to be clear that there is nothing in the law that prevents one man from limiting an estate to another until he alien it or attempt to alien it, or until he become bankrupt or insolvent, and if and as soon as he aliens or attempts to alien, or becomes bankrupt or insolvent, that his estate shall cease and go to another. This
Now, in the case before us the breach of the condition not only determined the estates first given, as well those in the mausoleum lot as in the other two lots; but the limitation over immediately vested the whole property in fee simple in Elizabeth M. D. Beilly. It is the same, in legal effect, as if the property had been limited to Thomas J. D. Beilly until he aliened or attempted to alien the mausoleum lot, or some part of it, and then over.
Rochford v. Hachman, 41 Eng. Ch. Rep. (9 Hare), 474 (decided by one of the vice-chancellors in 1852), has a strong bearing on this case, as will appear by the syllabus given by the reporter.
A bequest of a share of residuary personal estate in trust for A for life, and after the decease of A for his children equally, to be vested interests in such children at twenty-one, with power to apply the income for their maintenance during their minorities, and a gift over in default of such children; and a proviso that if A should in any manner sell, assign, transfer, incumber, or otherwise dispose of or anticipate his share, or any part thereof, then, immediately after such alienation, sale, assignment, tranfer, or disposition, the bequest in trust for A should cease, determine, •and become utterly void as if the same had not been mentioned in the will, or as if A were dead. A, being in prison for debt, presented a petition for his discharge (under the insolvent debtor’s act), and thereupon the vesting order was made : Held, that there was a valid limitation of the share of A; that taking the benefit of the insolvent act was a voluntary alienation of his share by A, and was the event or one of the events on which the limitation over was made to take effect, &c.
Lastly, it is insisted that even if the condition were valid, the limitation over is void because the contingency on which it was to take effect is too remote under the rule ■against perpetuities. That rule requires that such limitation should take effect within a, life or lives in being and the utmost period of gestation (ten months in Virginia) and twenty-one years thereafter. 2 Minor’s Inst. 377. It is not sufficient that it be capable of taking effect within the prescribed period; it must be so framed as ex necessitate to take effect, if at all, within that time. Proprs. Church of Brattle Square v. Grant and others, supra.
It is contended that the restraint upon alienation is not confined to the life-tenant, but extends to the remainder-men, so that the event (the alienation or attempt at alienation) upon which the estate limited over is to vest, is not of necessity to take place within the prescribed time, but may occur at a more remote period. But, I think, this is a misconstruction of the deed. Plainly, the condition to which the remainder is subject is that annexed to the life-estate, and that condition is; that the life-tenant shall not
The restrictive provisions of the deed are within the limits of the law. No legal restraint upon alienation was imposed, or attempted to be imposed, upon those who should succeed to the title after the death of the life-tenant. They were left to the influence of such moral restraint only as might be exerted by the expressed wish of the grantor, that the object of his veneration should, “be forever consecrated for [to] the pious use for which it was designed ” by him.
For the reasons stated, I am of opinion that there is no error in the judgment complained of, and that it should be affirmed.
Judgment affirmed.