ple, or declining to exercise the power, might convey the determinable fee which she held. Her power to convey in fee simple was not regarded as an incident of her ownership, but was a power distinct from the right of property.29

In Orr v. Yates, 209 Ill. 222, 70 N. E. 731, the court said that so far as the opinion in the Friedman Case announced a doctrine different from the established one concerning the power of the owner of a deter

29 Hubbard v. Rawson, 4 Gray (Mass.) 242 (Devise in trust for Lucy absolutely "if said Lucy should make any disposition by will or other writing of said property, which she is at liberty to do, he pay, convey and deliver over said trust property to such person or persons as she may name; and if she does not make any such disposition, that he pay, convey and deliver over said trust fund, or what may remain in his hands, to her children, to be equally divided between them, meaning hereby that he shall pay and distribute what may remain of said fund at her decease, in case she make no will, in the same way and manner the same would have been distributed had she died intestate, sole and unmarried, to her children, if she leave any, and if not, to such as would inherit when the intestate leaves no children." In holding the gift over to the children valid, the court, by Dewey, J., said: “In the view we take of the case, this part of the devise cannot be treated as a nullity. The cases, cited by the plaintiff, of Ide v. Ide, 5 Mass. 504, and Newhall v. Wheeler, 7 Mass. 189, are not parallel cases, and the same reasons do not exist here, as existed in those cases, for holding the conveyance to be that of an absolute title. * The result to which we come is, that Mrs. Morris had only an equitable fee simple contingent, liable to be defeated upon her dying before her husband, in case the estate was not conveyed by her order, and she had made no disposition of the property by will or other writing; that it was competent for the testator to make the devise over; and that, the estate given to Mrs. Morris having terminated by her death, her children held the land as purchasers by force and effect of the will of Daniel Rawson, and not as an estate acquired by inheritance from their mother.")

Randolph v. Wright and Wife, 81 Va. 608 (Devise to A. absolutely "should either son die without a will or lawful issue, the surviving son must heir all the property given by me to him." The court in holding the gift over upon the death of one son without issue valid, said by Lacy, J.: "Upon the best consideration we can give this case we are of opinion that, while it is true that the power of disposal by will or otherwise is incident to an absolute fee simple estate, and therefore adds nothing when annexed, which was not already an incident inhering in that degree of estate; yet that the power of absolute disposal by will is not an incident inhering in an estate for life only, nor in a defeasible fee, nor in any limited estate; and that in this case if the power of disposition had not been granted by the will it would not have been an incident inhering in the limited estate granted, to wit, a defeasible fee, liable to be defeated and determined by the happening of a contingency of the failure of issue, which contingency actually happened, and determined such limited estate; and that the power of disposing by will did not annex an incident of the estate already granted, and therefore to be held to be nugatory, but did annex a power not otherwise granted, and not otherwise attached to the estate granted; a power of appointment by will, added to an estate devised subject to an express limitation, whereby such estate is defeated and determined upon the contingency of his dying without issue. Such an estate can be held to be an absolute estate in fee simple only by disregarding the plain words of the will, to say nothing of that regard to the intention of the testator, to be gathered from the whole will, and then followed as the polar star in all effort to construe the wills of the dead. It is plain in this case that the intention of the testatrix was, and the plain and clear effect of the words used is, to be held to devise to her son Edward an estate liable to be defeated and de

minable fee to make a conveyance it had not been approved, and in the case then being considered it was held that the language, "if not disposed of by Mary Maria Yates," could not be construed to give her an unqualified power of disposition or any power whatever, and that counsel in the case did not so contend. In the Friedman Case, and perhaps other cases, an executory devise depending upon intestacy and the failure of issue has been considered valid; but there has been no one in which such a devise has been sustained if there was an absolute power of alienation in fee simple by the first devisee at his own discretion and as owner of the estate.

The decree is reversed, and the cause is remanded to the circuit court, with directions to overrule the exceptions to the answer of the plaintiff in error, Eliza Green, to overrule the demurrer to her crossbill and require an answer thereto, and to proceed further in accordance with the views expressed in this opinion.

Reversed and remanded, with directions.30

termined upon his dying without issue. That contingency happened. The power of appointment was never exercised.")

See, also, Eaton v. Straw, 18 N. H. 320.

It is clear that where there is a gift to A. for life, with power to appoint by deed or will and in default of appointment to B., the gift over to B. is valid. In so holding in Welsh v. Woodbury, 144 Mass. 542, 11 N. E. 762, the court, by Holmes, J., said:

"The testator's wife, Mary Jacks, took a life estate coupled with a power, and the limitation to his sister, Lydia Hobbs, was valid. Ayer v. Ayer, 128 Mass. 575, 577; Smith v. Snow, 123 Mass. 323; Kuhn v. Webster, 12 Gray, 3. The suggestion which has been made, that it is hard to distinguish between enjoyment for life with absolute power of disposition, and absolute ownership (Bradly v. Westcott, 13 Ves. 445, 451), is met by these cases, and by the testator's clear expression of his intent to give an estate for life only. See, also, Kelley v. Meins, 135 Mass. 231, 234; Anon. 3 Leon. 71. pl. 108; 13 Ves. 453; Reith v. Seymour, 4 Russ. 263; Sugd. Powers (7th Ed.) 123-125. And the technical doctrine of Kelley v. Meins is avoided by this technical distinction. For the ground of Kelley v. Meins and that class of cases, whether concerning personal or real estate, is that the limitation over is an attempt to take away one of the incidents of ownership, and to say that, if the owner does not dispose of his property in his life or at his death, it shall devolve otherwise than as the law has provided. This objection does not apply to a remainder after a life estate, even when the life estate is coupled with a power.

"The objection to the uncertainty of what will be the subject of the limitation over, which was once thought to be a further ground for the doctrine of Kelley v. Meins, as applied to personal property, seems to be discredited by the later English decisions cited in that case, and never has been applied to a life estate, coupled with a power. Cases supra; Surman v. Surman, 5 Madd. 123; In re Thomson's Estate, 13 Ch. D. 144; Burleigh v. Clough, 52 N. H. 267, 13 Am. Rep. 23. See Ross v. Ross, 1 Jac. & W. 154, 158; Cuthbert v. Purrier, Jac. 415, 417; Green v. Harvey, 1 Hare, 428, 432."

30 Accord: Combs v. Combs, 67 Md. 11, 8 Atl. 757, 1 Am. St. Rep. 359; Armstrong v. Kent, 1 Zab. (21 N. J. Law) 509.

In Hall v. Robinson, 3 Jones, Eq. (56 N. C.) 348, the limitations were to A. absolutely, but if he dies "leaving no will nor issues" then over to B. In holding the gift over valid the court, by Pearson, J., said: "The only dif ference between the present case and the ordinary cases of conditional limitations and executory devises and bequests is that here the future con

CHAPTER XLIV

FORFEITURE ON ALIENATION OF ESTATES FOR LIFE AND FOR YEARS

LOCKYER v. SAVAGE.

(Court of Exchequer, 1733. 2 Strange, 947.)

The plaintiffs brought a bill as assignees of a commission of bankruptcy against Norris, to have an account of the personal estate which the bankrupt's wife's father died possessed of, he being a freeman of London.

The defendants insisted, that by articles between the bankrupt and Freeman and his daughter, previous to the marriage, she had in consideration of £4000 advanced by the father in his lifetime, released her right to any further demand out of the personal estate; and that the £4000 was settled to the use of the bankrupt for life, but if he failed in the world, the trustees were not to pay the produce to him, but apply it to the separate maintenance of the wife and children.

Upon the hearing two points were ruled: 1. That a child of full age might, for the consideration of a present advancement, bar herself of the customary share. And that it was stronger in the case of a child who had a right, than in the case of an intended wife, which had been allowed. 2 Vern. 665. 2. That the provision for her maintenance in case the husband failed, was good against creditors; it not being a provision out of the bankrupt's estate, but the settlement of her own fortune. Abr. Equ. Cas. 53, 54. And though it was objected, that the profits were forfeited by the act which was to vest the separate right in the wife, viz., bankruptcy; and when two rights concur, fortior est dispositio legis quam hominis: yet the court compared it to the case of a lease, where the lessee is restrained from assigning without consent of the lessor, and the assignment has always been held to be void. The bill was dismissed with costs. Strange pro defendente.

tingent estate is made to depend, not only upon the event of the death of the taker of the determinable fee under age, and if of age without leaving issue, but upon the additional event of his dying intestate, so as to make three instead of one, or two, contingencies; but there is no inconsistency between the existence of this contingent estate and the estate of the first taker; for, in order to make an absolute inconsistency, which the rule requires, the first taker must have the absolute estate, or a general power of disposition, so as to leave nothing in the testatrix capable of being given over to a third person. We are of opinion that the limitation over was valid."

ROE d. HUNTER v. GALLIERS.

(Court of King's Bench, 1787. 2 Term R. 133.)

In this ejectment a special verdict was found before Gould, J., at the last assizes at Hertford, which stated that John Hunter being seised in fee of the premises in question, demised the same by two several leases dated 24th December, 1778, to Green, who for some time before had been and afterwards continued to be a dealer in horses, for twenty-one years from Michaelmas, 1778, at rack rents for both farms of £150 a year, without any fine or other consideration than the yearly rents; in each of which leases is contained the following proviso: "that if the said yearly rents thereby reserved, or either of them, or any part thereof, shall be behind or unpaid for twenty days next after the respective days of payment, being lawfully demanded; or if the said J. Green, his executors, or administrators, shall assign over the indenture of lease or assign or let the premises thereby demised, or any part thereof, to any person whatsoever for any time or times whatsoever, without the license or consent of the said J. Hunter, his heirs, and assigns, first had or obtained in writing under his or their hands for that purpose; or if the said J. Green, his executors, or administrators, shall commit any act of bankruptcy within the intent and meaning of any Statutes made or to be made in relation to bankrupts, whereon a commission shall issue, and he or they shall be found or declared to be a bankrupt or bankrupts; or if he or they shall make any composition with his or their creditors for the payment of his or their debts, though a commission of bankrupt doth not issue, or if he or they shall make any assignment of his or their effects in trust for the benefit of his or their creditors; that then and from thenceforth in any of these cases it shall and may be lawful to and for the said J. Hunter, his heirs, and assigns, into the said demised premises to re-enter, and the same again to have, repossess, and enjoy, as in his or their former estate, anything therein contained to the contrary notwithstanding." It is then found that counterparts of the said leases were executed. That the two farms after such demise and before the bankruptcy of Green were improved by the bankrupt £30 per annum. It then stated the act of bankruptcy; that a commission issued thereon on 3d February, 1787; that Green was duly found and declared a bankrupt; and that the defendants afterwards entered into the premises, and were possessed as assignees under the commission and the usual assignment; upon whom the said John' Hunter afterwards entered. But whether, &c.

ASHHURST, J. The only question is, whether a proviso in a lease, that if the lessee commit an act of bankruptcy, or, in other words, do any of those acts upon which a commission of bankrupt may be sued out, the landlord shall have a right to re-enter, be legal or not? The general principle is clear, that the landlord, having the jus disponendi, may annex whatever conditions he pleases to his grant, provided they

be not illegal or unreasonable. Then is this proviso contrary to any express law; or so unreasonable as that the law will pronounce it to be void? That it is not against any positive law is admitted; and no case has decided it to be illegal. In the case of Lord Stanhope against Skeggs, the court were divided in opinion upon the question which arose there; therefore that is no authority either way: but considering what the ground of that difference was, it is some authority in support of this proviso; for the doubt arose upon considering whether a clause of restraint could operate upon executors to prevent them from assigning land which was expressly leased to the original tenant and his executors, eo nomine, when that was the only means by which they could exercise their trust. Now that doubt does not occur in this case, this question turning on a different point. This proviso then not being against any express authority of law, it remains to be considered whether it be void or unlawful as against reason or public policy; now it does not appear to me to be against either. First, it is reasonable that a landlord should exercise his judgment with respect to the person to whom he trusts the management of his estate; a covenant therefore not to assign is legal; covenants to that effect are frequently inserted in leases; ejectments are every day brought on a breach of such covenants. The landlord may very well provide that the tenant shall not make him liable to any risk by a voluntary assignment, or by any act which obliges him to relinquish the possession. If it be reasonable for him to restrain the tenant from assigning, it is equally reasonable for him to guard against such an event as the present, because the consequence of the bankruptcy is an assignment of the property into other hands. Perhaps it may be more necessary for the landlord to guard against this latter event, as there is greater danger to be apprehended by him in this than in the former case. Persons who are put into possession under a commission are still less likely to take proper care of the land than a private assignee of the first tenant. Neither is there any reason of public policy to be urged against allowing such a proviso. It conduces to the security of landlords, which can never be urged as a ground of objection on that head. On the whole therefore I am of opinion that this is a valid proviso; and, the lease having been forfeited by the tenant's becoming a bankrupt, the lessor of the plaintiff is entitled to recover.

BULLER, J., after commending the conciseness of the special verdict, and recommending it as an example in future, said, the question lies in a very narrow compass; whether a proviso in a lease for twenty-one years, that it shall be void if the lessee become a bankrupt, be good in law? The defendant's counsel has commented much upon the different parts of this proviso. I cannot say whether any part of it may or may not be objectionable with reference to the Statutes concerning bankrupts; we are now to decide upon the construction of a proviso at common law, and not on any Statute. There is a great difference