bequests to them in order to avoid an injustice not intended by the testator. The court in delivering the opinion called attention to the necessity for considering both the separability of the valid from the invalid provisions, considering the will abstractly, and the effect thereof upon the testator's manifest wishes. The court said: "All of the positions of appellees may be conceded, and yet appellants' contentions sustained under the law. Where provisions of a will are, in fact, independent and not for the carrying out of a common or general purpose, it is undoubtedly true that such as are contrary to law may be rejected without in any manner affecting valid provisions. The statement, however, that a valid provision will be sustained if no violence is done to the parts sustained by the rejection of the invalid provisions is too narrow a statement of the rule, and is in disregard of the cardinal principle that the testator's wishes, as evidenced by the general scheme adopted, are to be taken into consideration, so that justice must be done if it can be. The rule as stated by appellees would seldom, if ever, permit a valid provision to be set aside because other provisions were held invalid. It would be difficult to frame a will so that the rejection of the invalid provisions could seriously affect or do violence to valid provisions which might be sustained. The correct solution can only be arrived at by taking into consideration the general scheme and intention of the testator, and the effect that defeating a part of the provisions may have upon the general scheme of the testator or on the beneficiaries or objects of his bounty."

In Johnson v. Preston, 226 Ill. 447, 80 N. E. 1001, 10 L. R. A. (N. S.) 564, the will of Jane Platt bequeaths certain personal property specifically to John R. and George A. Platt, grandsons; gives a life estate in other personal property to James J. Platt, a son, with remainder absolutely to his five sons; devises to the executor certain real estate to hold for the period of 25 years from the date of probate of the will for the use and benefit of two of the grandsons, the fee then to vest in those two or their heirs absolutely; gives certain other real estate to the executor to hold for 25 years from the date of the probate of the will for the use and benefit of the three other grandsons, to go to them or to their heirs absolutely after 25 years from the date of the probate of the will. There are also certain annuities to be paid by the executor while he shall hold the property, which are made a charge upon the estate thereafter. The court held that the devise to the executor to hold for 25 years from the date of the probate of the will introduced a certain contingency and violated the rule against perpetuities, and that, therefore, the entire devise to the executor of the real estate was void; that the controlling purpose of the testatrix is equally well subserved, since it was to give to her son, James J. Platt, and his five sons, her entire estate; that the interests of the grandchildren were not postponed until the expiration of the 25 years, but that there was a clear intention to give an absolute fee-simple estate

with a present right of enjoyment, and, since the payment of the annuities was not only imposed upon the executor but made a direct charge upon the estate, the ultimate result with the trust upheld cannot be any different from what it is with the trust eliminated. The entire trust was held void and the estate intestate.

The plaintiff in error relies upon the following Illinois cases: Howe v. Hodge, 152 Ill. 252, 38 N. E. 1083; Nevitt v. Woodburn, 190 Ill. 283, 60 N. E. 500; Chapman v. Cheney, 191 Ill. 574, 61 N. E. 363; Quinlan v. Wickman, 233 Ill. 39, 84 N. E. 38, 17 L. R. A. (N. S.) 216. There are a number of characteristics in these cases, we think, which distinguish them from the case at bar, some of which are as follows: (1) The valid provisions dispose of the corpus of the estate while in the case at bar they do not, and certainly the disposition of the fee or of the principal, if it be a fund, must be deemed a primary purpose of the testator; (2) in these cases the void provisions are a limitation over after such valid dispositions of the corpus; (3) both the life estates and the disposition of the fee intended by the testator are preserved by sustaining the valid provisions; (4) the void limitations. over after the disposition of the fee are reasonably deemed separable; (5) in all these cases except one the devises which are held valid are directly to the beneficiaries, and their interests vest directly as legal interests, instead of depending upon the trust. On the other hand, in the cases in which the life estates have been held to fall with the void provisions it has appeared (1) the devises are to a trustee and the beneficiaries take only equitable interests, depending in each case upon the trust; (2) the clauses, including the void limitation, taken together, comprise one entire, distinct scheme of disposition of the whole property; (3) the fee is not disposed of by the valid clauses except in the case of Johnson v. Preston, where the court found the primary disposition of the fee by the will to be identical with its disposition as intestate estate.

The case at bar in every essential corresponds with one or the other, and in most respects with all of the Illinois cases in which the entire trust scheme has been held invalid. The following are some of its essential characteristics: (1) The entire property is devised to a trustee, in whom the legal title vests, and this, as is well said in Amory v. Lord, 9 N. Y. 403, "completely negatives any theory of separate or separable trusts"; (2) the will presents one entire, complete, and connected scheme for the disposition of the entire property, and all of the provisions thereof are connected and interdependent; (3) the valid clauses of the will make no disposition of the fee; (4) it cannot be made to appear that the enforcement of the other provisions, after cutting off the void limitation in fee to the great-grandchildren, effects the primary purpose of the testator.

Every case in this state, so far as we have been able to discover, where the will devises the property directly and completely to the

trustee, and then directs him to make certain provisions out of the income thereof, has held the trust to be entire, and not separable. It is difficult to see upon what theory it could be argued that this will creates any separate trust or separate interest on behalf of any beneficiary. The estate is in the hands of the trustee as a whole. It is to be handled, invested, and reinvested, and the income collected as a whole. There is at no time any separation, or any hint of a separation, of the fund itself, until it is to be divided among the great-grandchildren. The trustee holds the legal title until the last one of the grandchildren is dead.

From a careful consideration of this will we are impressed with the view that John R. Barrett intended to dispose of his entire estate, not alone to create certain life estates therein, but to dispose of the fee, and that to only carry into execution the first part of the will and to eliminate the last would be entirely foreign to the intention of the testator. In the Eldred Case, supra, the application of the rule contended for by the plaintiff in error is thus limited, where it is said: "Courts must construe a will according to its own terms. They cannot make a new will or build up a scheme for the purpose of carrying out what might be thought was or would be in accordance with the wishes of the testator. Tilden v. Green, 130 N. Y. 29, 28 N. E. 880, 14 L. R. A. 33, 27 Am. St. Rep. 487; Lawrence v. Smith, 163 Ill. 149, 45 N. E. 259. It is true that parts of a will which are valid will be sustained though other parts are rejected as invalid, if no violence is done to the parts sustained. Lawrence v. Smith, supra; Gray on Perpetuities, §§ 233, 423; Howe v. Hodge, 152 Ill. 252, 38 N. E. 1083; 1 Jarman on Wills (4th Ed.) p. 297. But this rule should apply only when the first gift is absolute. And bequests of a will valid in themselves will be rejected with the invalid ones where the retention of them would defeat the testator's wishes, as evidenced by the general scheme adopted, or where manifest injustice would result to the beneficiaries. Lawrence v. Smith, supra." And in Lawrence v. Smith great stress is laid upon the fact that the property was not given direct to the beneficiaries.

Since the submission of this cause Saxton S. Barrett, the plaintiff in error, has died, and, his death having been suggested in the record, the First Trust & Savings Bank, a corporation, has been by order of court substituted as plaintiff in error in his stead, and the judgment in this case will be entered accordingly.

We are of the opinion that this case was properly disposed of by the trial court, and that its decree should be affirmed. The decree of the superior court will be affirmed.

Decree affirmed.

PART V

ILLEGAL CONDITIONS AND RESTRAINTS

CHAPTER XLIII

FORFEITURE OF ESTATES OF INHERITANCE

SECTION 1.-ON ALIENATION

LIT. § 360: Also, if a feoffment be made upon this condition, that the feoffee shall not alien the land to any, this condition is void, because when a man is enfeoffed of lands or tenements, he hath power to alien them to any person by the law. For if such a condition should be good, then the condition should oust him of all the power which the law gives him, which should be against reason, and therefore such a condition is void.1

CO. LIT. 223 a: "Also, if a feoffment be made, &c." And the like law is of a devise in fee upon condition that the devisee shall not alien, the condition is void, and so it is of a grant, release, confirmation, or any other conveyance whereby a fee simple doth pass. For it is absurd and repugnant to reason that he, that hath no possibility to have the land revert to him, should restrain his feoffee in fee simple of all his power to alien. And so it is if a man be possessed of a lease for years, or of a horse, or of any other chattel real or personal, and give or sell his whole interest or property therein upon condition that the donee or vendee shall not alien the same, the same is void, because his whole interest and property is out of him, so as he hath no possibility of a reverter, and it is against trade and traffic, and bargaining and contracting between man and man: and it is within the reason of

1 Co. Lit. 206b: "If a man make a feoffment in fee upon condition that he shall not alien, this condition is repugnant and against law, and the state of the feoffee is absolute (whereof more shall be said in his proper place). But if the feoffee be bound in a bond, that the feoffee or his heirs shall not alien, this is good, for he may notwithstanding alien if he will forfeit his bond that he himself hath made."

See, however, Gray, Restraints on Alienation (2d Ed.) § 19, note 1, and § 77. KALES FUT.INT. (1211)

our author that it should ouster him of all power given to him. Iniquum est ingenuis hominibus non esse liberam rerum suarum alienationem; and rerum suarum quilibet est moderator, et arbiter. And again, regulariter non valet pactum de re mea non alienanda. But these are to be understood of conditions annexed to the grant or sale itself in respect of the repugnancy, and not to any other collateral thing, as hereafter shall appear. Where our author putteth his case of a feoffment of land, that is put but for an example: for if a man be seised of a seigniory, or a rent, or an advowson, or common, or any other inheritance that lieth in grant, and by his deed granteth the same to a man and to his heirs upon condition that he shall not alien, this condition is void. But some have said that a man may grant a rent charge newly created out of lands to a man and to his heirs upon condition that he shall not alien that, that is good, because the rent is of his own creation; but this is against the reason and opinion of our author, and against the height and purity of a fee simple.2

A man before the Statute of Quia emptores terrarum might have made a feoffment in fee, and added further, that if he or his heirs did alien without license, that he should pay a fine, then this had been good. And so it is said, that then the lord might have restrained the alienation of his tenant by condition, because the lord had a possibility of reverter; and so it is in the king's case at this day, because he may reserve a tenure to himself.3

If A. be seised of Black Acre in fee, and B. enfeoffeth him of White Acre upon condition that A. shall not alien Black Acre, the condition is good, for the condition is annexed to other land, and ousteth not the feoffee of his power to alien the land whereof the feoffment is made, and so no repugnancy to the state passed by the feoffment; and so it is of gifts, or sale of chattels real or personal.

LIT. § 361: But if the condition be such, that the feoffee shall not alien to such a one, naming his name, or to any of his heirs, or of the issues of such a one, &c., or the like, which conditions do not take away all power of alienation from the feoffee, &c., then such condition is good.

2 Gray, Restraints on Alienation (2d Ed.) §§ 13-30. See, also, De Peyster v. Michael, 6 N. Y. 467, 57 Am. Dec. 470 (1852), where the land was charged with a sum of money upon its alienation.

3 Gray, Restraints on Alienation (2d Ed.) § 21, note 1.

4 See Camp v. Cleary, 76 Va. 140, where, however, the lands corresponding to Blackacre and Whiteacre were passed by the same deed.