after stating the case as above, delivered the opinion of the court.
The matters in controversy concern those shares only of Ira Couch’s real estate, which he devised tó his brother James and • to his nephew Ira, the son of James.
1. In order to ascertain the nature and the time of vesting of their interests; it is important in the first place to determine the extent and duration of the trust estate- of the executors and trustees named in the will, bearing in mind the settled rule that whether trustees take an estate in fee depends upon the- requirements of the. trust, and not upon the insertion of words of inheritance.
Doe
v.
Considine,
In the first clause of the will, the testator appoints his wife, his brother James and his brother-in-law Wood “executors and trustees ” of his will, and devises and -bequeathes to them all- his estate, real and personal, “ for the term of twenty years, in trust, • aiid for ..the uses and objects and purposes hereinafter mentioned and expressed, anc^ for the purpose of enabling them more fully to carry into effect the.provisions of this will, and for no other use, purpose or object; ” authorizes - them to lease his real estate at their discretion, and, out of any surplus funds, to improve his' real estate, to purchase other real estate to be held upon the same trusts, and to lend money on bond and mortgage; - but, in order that their doings' may not create any obstacle to -the division of his real' estate at the end of the twenty years, provides that they shall' not make leases, or lend money on mortgage, beyond .twenty years, or purchase, or improve by-building, after sixteen years from his death; and he also authorizes them to mbrtgage real, estate for the purpose of rebuilding in case of destruction by the elements.
In the next four clauses, he devises and bequeaths to his. widow, daughter, brother and nephew, respectively, “ after the expiration of the trust estáte vested in my executors and trustees for the term of twenty years after my decease,” one fourth part of all his estate, both real and- personal, after payment of
These provisions, had the testator said nothing more upon the subject, might have been construed as assuming or. implying that the trust estate was to terminate at the end of twenty years from the testator’s death, without any act or conveyance on the part of the trustees. But the will contains other provisions concerning the powers and duties of the trustees, which are wholly inconsistent with such a conclusion.
The sixteenth clause is as follows: “ I will and direct that no- part, of my estate, neither the real nor the personal, shall be sold, mortgaged; (except -for building) or in any manner incumbered, until the end of twenty years from and after my decease, when it may be divided or sold for the purposes of making a division between my devisees as herein directed.” The very object of this clause is to define when and for what purposes the trustees may mortgage or may sell the real estate: Before the end of twenty years, it is neither'to bé mortgaged( (except for building, as allowed in the first clause) nor to be sold; At the end of the twenty years, all authority to mortgage it is to cease, but “ it may be divided or sold for the purposes of making a division between my devisees as nerein directed.” This division or sale (like all sales or mortgages spoken of in this clause) is evidently one to be made by the trustees, under authority derived from the testator, and while the legal title remains in-them; not'a judicial division or sale for the purpose of partition, -after the legal title has passed to the residuary devisees.
Again; in the eighteenth clause, the testator directs that, in the event of any of the legatees or annuitants being, alive at the end of twenty years after his death, there shall, be a division^ all his estate-at that-time; “ anything herein contained
Although, at the expiration of twenty years from the • testator’s death, all the legacies and annuities to others than the-residuary devisees had in fact been paid, yet the duty still remained in the executors -аnd trustees to make a division, by sale if necessary. Under the,circumstances of-this case, it was impracticable to. make the division, either by the- partition, of the lands, themselves, or by selling them and distributing the proceeds, immediately upon the expiration of the twenty years; and until a division • was made, in one form or the other, by the-executors and trustees, the legal title -must
re-.
main in them. The- sale ánd conveyance by them, whether directly-to the.-residuary d-eviseps, or to third persons for the. purpose of paying the proceeds to. those' devisees,- was not "in. the exercisе of a power over an. estate vested-in other persons, but was for the purpose of terminating an estate-vested in the executors and trustees themselves, by conveying it to others. The twentieth clause, by which the daughter’s share; in case of her marriage, is to be conveyed at the" expiration of the twenty years by the trustees named in the will to trustees for • the benefit of herself and her children, and the'twénty-secorid. claus'e, by which the- share of the widow,'in case of her'marrying again, is to be held by the executors and trustees in trust for her, are also worthy of notice in this connection, although thgy might not, standing alone, affect the time of vesting of the legal title in the shares of the brother and the nephew.
Wellford
v. Snyder,
The decision of the Supreme Court of Illinois in
Kirkland
v.
Cox,
above cited, is much in point. In that case, the testator devised and bequeathed all his estate, real and personal, to trustees,-to control and manage it, and to make such disposition of it as should in their judgment increase its value; to pay to his daughter such instalments as they should deem sufficient for her support until she reached the age of thirty-five years, and then'to convey'the estate to her in fee; authorizing them, however, if she should be then- married to a man whom they thought unworthy, to continue to hold the title in trust during his life; and further providing that, if she died without issue, the whole estate, after paying certain legacies, should “ be divided equally between ” three charitable corporations. It was held that the powers conferred on the trustees implied
The cases cited against this conclusion differ widely from the case at bar. The two most relied on were
Minors
v.
Battison,
1 App. Cas. 428, in which- the facts were very peculiar, and there was much diversity of opinion among the judges before whom it was successively brought; and
Manice
v.
Manice,
2. From this view of the nature and duration of the estate of the "trustees, it necessarily follows that • by the terms of the ■ fourth and fifth clauses of the will, devising and bequeathing to.the testator’s brother and nephew, respectively, “after the expiration of the trust éstate vested in my executors and trustees,” “ one fourth part of all my estate, both real and personal,” (after the payment of debts and legacies, which he charged upon the real estate,) no legаl title in any specific part of the estate, and no right of possession, vested in either of them, until the trustees had divided the estate and conveyed to each of them one fourth of the estate, or of the proceeds of its sale; but, on well settled principles, an equitable estate in fee in one fourth of the residue of the testator’s whole property vested in the brother and in the nephew respectively from the death of
To the suggestion that the will violated the rule against per-. petuities, which prohibits the tying up of property beyond a life or lives in being and twenty-one years afterwards, it is a sufficient answer that after twenty years from the death of the testator, and after the death of the widow and daughter,, (if not before,) the title, legal and equitable, in the whole estate would be vested in persons capable of conveying it. Waldo v. Cummings, 45 Illinois, 421; Lun t v. Lunt, 108 Illinois, 307.
3. Nor is the estate of the residuary devisees affected' by the nineteenth clause of the will, which is in these words: “ It is my will that my trustees aforesaid shall pay the several gifts, legacies, annuities and charges herein to the persons named in this will, and that no creditors or assignees or purchasers shall, be entitled to any part of the bounty or bounties intended to be given by me herein for the personal advantage of the persons named ; and therefore' it is my will 'that, if either of the devisees or legatees named in my will shall in any way or manner, cease to be personally entitled to the legacy or devise ■made by me for his or her benefit, the share intended for such devisee or legatee shall go to his'or her children, in the same manner as if such child or children had actually inherited the same, and, in the event of such person or persons having no children, then to my daughter and her heirs.”
The devise over in this clause cannot, indeed, by reason of the'words “ gifts-, legacies, annuities and charges,” and “ bounty or bounties,” in the preamble, be confined to the legacies and annuities given by the testator and charged on his real estate by clauses six to thirteen inclusive, and by/ clause eighteen. So to, hold would be utterly to' disregard the comprehensive and'decisive words, “devisees or legatees,” “legacy, or devise,” and “share intended for such devisee or'legatee,” by which the testator clearly manifests his intention that the devise ovеr,shall attach to the shares of his real estate, devised
The testator having declared his' will that the devises of the shares shall be “ for the personal advantage of ” the devisees, and that “ no creditors or assignees or purchasers shall be entitled to any part,” and having directed the devise over to take effect “ if either of the devisees shall in any way or manner cease to be. personally entitled to the devise made for his benefit,” the devise over of the shares of the brother and the nephew, if valid, would take effect upon anjr alienation by the first devisee, whether voluntary .or involuntary, by sale and conveyance, by levy .of execution, by adjudication of bankruptcy, or otherwise; or, at least, upon any such alienation before his vested equitable estate became a legal estate after the expiration of the twenty years..
But the right of alienation is an inherent and inseparable quality of an estate in fee simple. In a devise of land in fee simple, therefore, a condition against all alienation is void, because repugnant to the estate deVised. Lit. § 360; Co. Lit. 206 b, 223 a; 4 Kent Com. 131;
McDonogh
v.
Murdock,
The oases most relied on, as tending to support a different conclusion, are two decisions of this court, not upon devises of real estate, but’upon peculiar bequests of slaves, at times and places at which they were considered personal property.
Smith
v.
Bell,
This was held to give the son a vested remainder, upon grounds summed up in two passages of the opinion, delivered by Chief Justice Marshall, as follows: “ The limitation in remaindér shows that, in the opinion of the testator, the previous words had given only an estatе for life. This was the' sense in which he used them.”
In
Williams
v.
Ash,
a Maryland testatrix bequeathed to her nephew all her negro slaves, naming them, “ provided he shall not carry them out of the State of Maryland, or sell, them. to any one ; in either of which events I will arid devise the said negroes to be free for' life.” Onе of the slaves was .sold by . the. nephew/ and, upon petition against the purchaser, was adjudged to tie free. As stated by Chief Justice Taney, in delivering the opinion of the court, and recognized in the statute of Maryland of 1809; c, 171, therein cited, “ By the laws of Maryland, as they stood at the date of this will, and at ttie time of the death of the testatrix, any person might, by deed\ or last will and testament, declare his slave to be free after any given period of service, or at ariy particular age, or upon the performance of any condition, or on the eVent of any con
The' case at bar presents no-question of the validity of a proviso that income bequeathed to a person for life shall not be liable for his debts, such as was discussed in
Nichols
v. Levy,
The restraint, sought to be imposed by the nineteenth clause, upon any alienation by the brother or by the nephew of. the share devised to him in fee, being void for repugnancy, it follows that upon such alienation, or upon an attempt to alienate, his estate was not defeated, and no title passed under the devise over, either to the nephew in the share- of the brother, or to the daughter or her children in the share of the brother or of the nephew, and therefore nothing passed by the daughter’s deed to her husband.
For the reasons already stated, the appeal of the nephew, Ira Couch, from so much of the decree below, as declared the legal title under the residuary devises to have vested at the expiration of twenty years from the testator’s death, is well taken; and the ■ equitable estate in fee in one fourty of the residue of the testator’s property, having vested in Ira Couch from the death of the testator, passed by his deed of assignment to Dupee, and by mesne conveyances back to him..
The various' alienations of the share of the brother, James ' Couch, require more consideration.'
T. The appellant -Potter claims the share of James Co.uch. under proceedings against him by his creditors^ at law and in equity, the effect.of which depends upon .the statutes of Illinois.
It is equally clear that such an equitable interest was not an estate on which a judgment at law would be a lien, or an execution at law could be levied, under the Illinois statute , оf judgments and executions, although the term “ real estate,” as-used in that statute, is declared to include “lands, tenements, hereditaments and all legal and -equitable rights and interests therein and thereto.” Hurd’s Rev. Stat. c. 77, §§ 1, 3, 10;
Brandies
v. Cochrane,
By the chancery act of Illinois, “ whenever an execution shall have been issued against the property of a defendant, on a judgment at law or equity, and shall have been returned unsatisfied, in whole or in part, .the party suing out such execution may file a bill in chancery against'such defendant, aiid any other person, to compel the discovery of any property, db thing inaction, belonging to the defendant, and of any prop-; erty, money, or thing in action, due to him, or held in trust for him, and to prevent the transfer of any such property, money or thing in action, or the payment or delivery thereof to the defendant; except when such-trust has in good faith been created' by, or the fund so held in trust has proceeded, from, some person other than the defendant himself.” Hurd’s Rev. Stat'. c. 22, § 49.
As the only title of James Oouch in the property devised was an equitable interest which could not lawfully have been taken on execution at law against him, and as the trust was an active trust, “ in good .faith created by,” and “ the fund so held in trust proceeded from,” the testator, “ a person other than the defendant himself,” the letter and the spirit of the statute alike require that this equitable interest should not be charged for his debts.
It follows that neither the judgments and executions at law, nor the suits in equity, against James Couch, gave any lien or title to his creditors; and that the deed from him to a receiver was Wrongly ordered by the stаte court in which one of the suits was commenced, and was rightly set aside by the Circuit Court since the removal of that suit.
5. The appellant Hale claims the share of James Couch under a deed from him and his wife. The interest conveyed by that deed being an equitable interest only, Hale requires the aid'of a court of equity to perfect his title, and would have to seek it by cross bill, but for the order of. the Circuit Court that each answer should be taken as a cross bill. The real consideration of- that conveyance was an agreement by which Hale promised to buy up the existing judgments against James Couch, to sell the interest conveyed by the deed of James and wife, and to pay to the wife one half of the net proceeds. In
6. It remains only to consider the contention that by the instrument of January 8, 1877, the devisees entered into an agreement by which they took the whole estate as tenants in common, and rendered any division unnecessary, and therefore all the duties of the trustees ended, and the legal title vested in the residuary devisees, at the expiration of the twenty years. Undoubtedly, those interested in property held in trust, and ultimately entitled to the entire proceeds, may elect to take the property in its then condition, and to .hold it as tenants in common ; but the acts showing an intention so to take must be unequivocal, and must be concurred .in by all the parties interested.
Young
v. Bradley,
This conclusion-, by which the brother and the nephew take \the shares originally devised to them, carries out the intention of the testator, though "probably not by the same steps that he contemplated.
Decree accordingly r the appellants in each appeal, except James Couch, to pafy one fourth of the costs, including the cost of printing the record.