after stating the facts. We do not see why the plaintiffs are not able by the deed which they have tendered to convey a good and indefeasible title to the defendant. The latter contends, as we understand, that the deed will not pass to him such a title for three reasons: (1) because by the fifth item of the will the widow and the heirs axe forbidden to sell or dispose of any of the real estate during the life of the former; (2) because by the terms of the sixth item no estate vested in the plaintiffs, Leonard and Elizabeth Wool, either by descent or purchase, until the expiration of five years after the devisor’s death, and (3) because by the seventh item the said Leonard and Elizabeth did not acquire the fee, but only a life estate, the word “lawful” *464 which qualifies the word “heirs” having the effect in law of preventing the latter word from operating as one of limitation and of restricting the meaning of the words “lawful heirs” to that of “children” who will take,.not by descent from their parents but by purchase directly from the devisor, and, therefore, that the rule in Shelley’s case and The Code, sec. 1325, converting fees tail into fees-simple, do not apply.
It is true that the testator places a positive restraint upon the alienation of the real property in the fifth item of his will, and the plaintiffs by reason of that restriction cannot convey a good title to the defendant if that provision of the will is valid. We entertain no doubt upon the question thus presented, as it is well settled that such a restraint upon the donee’s right to dispose of the property is void as being contrary to a wise principle of the law which is based upon a sound public policy. As a general rule it may be conceded that every person may do with his own as he pleases; but this rule is not of universal application, but is subject to some exceptions made necessary by the interest of the public that the titles to land should be as little fettered and the power of alienation as little subject to restraint as possible and consistent with a reasonable enjoyment of the right of property and all of its incidents — it being, generally speaking, against public policy to allow restraints to be put upon transfers which that public policy does not forbid. Gray Restraint on Alienation (2 Ed.), sec. 3. Hence it has ever been the inclination of the courts in their decisions to remove old restraints and not only to discountenance but to disallow new ones, and to put all obstacles out of the way of a fair and reasonable exercise of this power of alienation, which is one of the most important and valuable incidents of the right of property. While limited restraints of a certain kind have been recognized as valid when the fee is conveyed, it must be conceded at this time to be well settled that a restraint
*465
upon the right of alienation even for a limited period of time is, as to such an estate, invalid — it being inconsistent with the nature of the grant or of the estate which is created by the latter. Gray,
supra,,
41. The elementary law writers (2 J31k., 157) lay down the rule generally that a condition of non-alienation annexed to a conveyance
inter vivos,
or to a devise of a fee, is void, because it is inconsistent with the full and free enjoyment which the ownership of such an estate implies.
Twitty v. Camp,
The statute,
Quia Emptores,
18 Edw. I., chap. 1 (1290), abolished subinfeudation and by virtue of its provisions all persons, except the King’s tenants
in capite,
were left at liberty to alien all or any part of their lands at their own pleasure and discretion (2 Blk., 289), and finally restrictions in cases of freehold tenure were entirely removed by 12 Car. II., chap. 34, and ever since those statutes were passed the right of free and unlimited alienation has been regarded as an inseparable incident to an estate in fee. 1 Wash. R. P. (5 Ed.), p. 83;
Hardy v. Galloway,
We think it is equally well settled, at least in this State, that such a condition annexed to the grant or devise of an estate for life is also void, both as to legal and equitable estates. In Dick v. Pitchford, supra, Gaston, J., for the Court, says: “The deed does not provide that in the event of the life tenant attempting to sell or dispose of the [rents and profits] or otherwise to anticipate the receipt thereof, that they shall then go over and be paid to some other person; it secures to him, at all events, the enjoyment of the property for life, and prohibits him from transferring it or anticipating its profits. Now the general right of the giver of property to prescribe the modifications of his gift is subject to the condition that these modifications be not contrary to law nor repugnant to the nature of the conveyance, nor incompatible with the legal incidents belonging to the disposition he has made. The power of alienation is a legal incident to ownership. It is familiar doctrine that if a feoffment, grant, release, confirmation or devise be made 'upon condition not to alien the estate, or if a term for years or chattel personal be granted upon condition not to assign, such conditions are altogether nugatory. The doctrine obtains not less in courts of equity, acting upon those interests which are the proper siibjecfc-matter of their jurisdiction, than in courts of law adjudicating upon legal interests. A departure from it would introduce endless confusion and innumerable mischiefs.” Gray, sec. 134; 24 A. & E. Ency., p. 870.
A distinction is sometimes to be found in the cases between a condition against alienation or anticipation, coupled with a provision that the life tenant and his assigns shall lose the estate if the condition is broken and that it shall go over (which makes it a limitation), and one by which he is compelled to keep the property so that neither his grantees nor *467 any third person can get hold of or enjoy it, the latter condition being declared as void and the former as valid. We need not pass upon this distinction as there is no limitation over in this case.
The nest objection to the title is equally untenable. It will be observed on reading the sixth item of the will that, while the testator provides that his surviving heirs shall appoint an administrator, he does not devise any estate to the appointee, but directs that the “estate” shall remain “in the name of Jacob Wool’s estate.” There can be no doubt that there is nothing in this item to interrupt the immediate descent of the land to the heirs and they consequently became seized by descent of an estate in remainder, which was vested in interest though not in possession — a vested remainder after the life estate of their mother.
Ferebee v. Procter,
The third objection to the title of the plaintiffs cannot be sustained'. By the sixth item of the will a life estate was given to the widow, and the remainder in fee descended to the heirs, Leonard and Elizabeth, who by the terms of the seventh item are to make partition of the land at the expiration of five years from the death of the life tenant. The provision in the seventh item that Leonard and Elizabeth shall own and occupy the property during their natural lives and at their death it shall go to their lawful heirs, and should they have no lawful surviving heirs it shall go to the testator’s lawful heirs, does not change the quantity of their interests or convert their fee into an estate for their lives with remainder to their children. There can be no such thing as an unlawful heir. The term “lawful heirs” means the heirs designated by the law to take from their ancestor, and it can
*469
not be construed as meaning the children of the first taker. It follows that by that item of the will an estate of freehold is given to the ancestors, Leonard and Elizabeth, and after-wards by the same instrument there is a limitation by way of remainder to their heirs generally, as a class, to take in suc-session as heirs to them. The case therefore falls directly within the rule in Shelley’s case, the word “heirs'” being one of limitation, and the estate is vested absolutely in the ancestors.
Ham v. Ham,
This rule is of very ancient origin and has always been considered as a rule of law or of property, and not merely as a rule of construction adopted for the purpose of ascertaining the actual intention of the testator. When the words employed bring the case within the rule, the intention of the testator is not to be considered, even though he should declare that the ancestor shall only have a life estate. The rule is imperative and must be enforced inflexibly in all cases to which by the term of the particular instrument it is applicable. 25 A.
&
E. Ency., 640. If there is anything in the instrument to indicate clearly an intention not to use the words in their technical sense, but as
descriptio personarum,
as, for instance, that by the words “heirs of the body” the testator meant children, such an interpretation will be given to his language as will effectuate his intention. “As the law will not entrap men by words incautiously used, if in the limitation of a remainder by any instrument of conveyance the phrase “heirs” or “heirs of the body” be expressed, but it is unequivocally seen that the limitation is not made to them in that character, but simply as a number or class of individuals thus attempted to be described, then the whole force of the phrase is restricted to this designation or description — it shall have the same operation as the words would have of which
*470
it is the representative; there is not in fact a limitation to ‘heirs’ and of course there is no room for the application of the rule.”
Allen v. Pass,
This Court has said that the rule in Shelley’s case applies only when the same persons will take the same estate whether they take by descent or purchase, in which case they are made to take by descent, as it is more favorable to the donee, to the feudal incidents of séignories, to the rights of creditors, and for other reasons, that the first taker should have an estate of inheritance, but when the persons taking by purchase would be different or have other estates than they would take by descent from the first taker the rule does not apply, and the first taker is confined to an estate for life, and the heirs, heirs of the body, or issue in wills, will take as purchasers.
Ward v. Jones,
The word lawful is not sufficient
per se
to show an intention not to use the word “heirs” in its ordinary legal sense as a word of inheritance or of limitation, and we must therefore hold that Leonard and Elizabeth, under the seventh, if not under the sixth, item of the will, took an estate in fee.
Cooper, ex parte,
*471
The defendant’s counsel in bis brief contends that the rule in Shelley’s case does not apply, and relies upon
Rollins v. Keel,
It is not suggested in the briefs of counsel that the limitation over to the “laAvful heirs” of the testator upon the death of Leonard and Elizabeth without leaving heirs renders their estate a fee contingent or defeasible. We have, however, considered the question and have reached the conclusion that it does not. The heirs of Leonard and Elizabeth Avill not necessarily be the heirs of the testator, as they may have heirs on the maternal side; but the converse is not true, as the heirs of the testator must of necessity be the heirs of his children. It therefore follows that if at the death of Leonard and Elizabeth there be any persons living who are the heirs of the testator they will also be their heirs, and this Avill of course destroy the ulterior limitation, for it is not to take effect by the terms of the deAÚse if Leonard and Elizabeth die leaving heirs.
If the parties were reversed and we were called upon to decide Avliether the defendants in this case are entitled to specific performance, the relief Avould be denied, as the granting it is a matter of sound judicial discretion, controlled, it is true, by established principles of equity, but exercised only upon a consideration of all the circumstances of each *472 particular case (Pomeroy Contr., Spe. Perf., sec. 35), and, as a conveyance by tbe present plaintiffs, Leonard and Elizabeth, would tend to defeat tbe intention of tbe testator as manifested in item six of tbe will, this consideration alone would be sufficient to induce tbe Court to withhold its aid. And a like result would follow if the plaintiffs in this case were seeking to compel the defendants against their will to comply with the contract, for the same consideration would arise. The question, though, is not presented in.either of these ways. The defendant is willing to take the title upon our declaration that it will at least be good in them by reason of the estoppel or rebutter arising out of the plaintiffs’ deed or warranty, and we so decide. This affirms the judgment below.
Affirmed.