element from a fee simple estate, either by deed or by will, must be declared void and of no force. Hobbs v. Smith, 15 Ohio St. 419.

Of course, we do not deny that the owner of an absolute estate in fee simple may by deed or by will transfer an estate therein less than the whole, or may transfer the whole upon conditions, the breach of which will terminate the estate granted, or that he may create a trust whereby the beneficiary may not control the corpus of the trust, or even anticipate its profits. But as we construe this will, nothing of the kind has been here attempted. The attempt here was to fasten upon the estate devised a limitation repugnant to the estate, which limitation, and not the devise, must be for that reason declared void.

It is contended on behalf of defendant, Charles L. Cary, that by this devise an estate in trust, until the younger son should arrive at the age of thirty-one, was created for the benefit of the widow and children of the testator. That such was the effect of the so-called "conditions," when construed in connection with other clauses of the will. We do not so understand the will.

When the elder son, Thomas, arrived at age, the daughter ceased to have any right whatever in the devised premises.

The right of the widow to one-third the rents and profits of the farm was not affected by the arrival of Charles at thirty-one years of age, and did not affect the absolute character of the devise to the sons. If she took during widowhood one-third of the lands, the sons took a vested remainder in that portion, and a present vested estate in the other two-thirds. If her right was to rents and profits as such, and the same was made a charge upon the lands, the estate of the sons nevertheless vested in them and for their own benefit, subject to the encumbrance. The relation of trustee and cestui que trust existed between them in no proper sense. The grantees of the sons would have stood in the same relation to the widow. No relation of personal confidence or trust was created, but one growing out of property rights alone-strictly legal rights. Whatever may have been the desire of the testator as to his widow remaining on this farm after the majority of the elder son, it is quite clear that the rights of the devisees were not made to depend on that event. The personal relations of the members of his family were not provided for after the arrival of Thomas at age, but their property rights, respectively, were defined; and the rights of neither were subjected to the control or supervision of the other. There was no trust created.

If we could find in this devise a trust in favor of the widow, until Charles should arrive at thirty-one years of age (and certainly there was none before, if not after), so that no absolute estate vested in the sons previous to the termination of such trust estate, or if we could find a condition which prevented the vesting of the fee for such limited period, or a condition subsequent upon the happening of which the estate

devised could be defeated, a different conclusion, no doubt, would be reached.

But the case before us, is the devise of an absolute fee, with a clause restraining the alienation and encumbering of the estate for a limited period, intended, no doubt, for the protection of the devisees, who alone are interested in the estate devised. In holding that such restraint is repugnant to the nature of the estate devised, and is void as against public policy, which in this State, in the interest of trade and commerce, gives to every absolute owner of property, who is sui juris, the power to control and dispose of such property, and subjects the same to the payment of his debts, we are fully aware of the fact that many authorities may and have been cited to the contrary. Others, however, support the view we have taken, but I shall not attempt either to review or reconcile the cases, being content to rest the decision upon what we conceive to be sound principle and sound policy. The owner of property cannot transfer it absolutely to another, and at the same. time keep it himself. We fully admit that he may restrain or limit its enjoyment by trusts, conditions or covenants, but we deny that he can take from a fee simple estate its inherent alienable quality, and still transfer it as a fee simple.

Decree for plaintiff.5

5 See, also, Mandlebaum v. McDonell, 29 Mich. 78, 18 Am. Rep. 61, ante, p. 1260; Kessner v. Phillips, 189 Mo. 515, 88 S. W. 66, 107 Am. St. Rep. 368, 3 Ann. Cas. 1005.

CHAPTER XLVI

RESTRAINTS ON THE ALIENATION OF ESTATES FOR LIFE AND FOR YEARS

BRANDON v. ROBINSON et al.

(Court of Chancery, 1811. 1 Rose, 197.)

Stephen Goom, by his will, bearing date the 1st of August, 1808, devised and bequeathed to the defendants, Robinson and Davies, all his real and personal estate upon trust, to sell and dispose of the same; and after payment of his debts, and some few legacies, upon trust to divide the residue of the produce of such sale, amongst his children, Thomas Goom, William Goom, Mary Wright, Esther Fuller, Elizabeth Goom, Stephen Goom, and Margaret Goom; and he directed that the eventual share and interest of his son Thomas Goom, of and in his estate and effects should be laid out in the public funds, or on Government securities at interest, by and in the names of his trustees during his life; and that the dividends, interest, and produce thereof, as the same became payable, should be paid by them, from time to time, into his own proper hands, or on his proper order and receipt, subscribed with his own proper hand; to the intent that the same should not be grantable, transferable, or otherwise assignable, by way of anticipation of any unreceived payment or payments thereof, or of any part thereof; and that upon his decease, the principal of such share, together with the dividends and interest, and produce thereof, should be paid and applied by his trustees, unto and amongst such person or persons, as in a course of administration would be entitled to any personal estate of his said son Thomas Goom, and as if the same had been personal estate belonging to his said son, and he had died intestate.

The testator died shortly after the date of the will.

On the 15th of June 1811, a commission of bankrupt issued against Thomas Goom, under which the plaintiff was the surviving assignee. The bill prayed, that the will might be established; that the clear residue of the estate and effects might be ascertained; and that the plaintiff might have the benefit of such part, as in the character of assignee he should be found entitled to. To this bill there was a general demurrer, that the plaintiff had no right or title.

THE LORD CHANCELLOR [LORD ELDON]. Without doubt a testator may limit his property, until the object of his bounty shall become bankrupt; but it is equally clear, that if he give it for life, he cannot take away the incidents to that estate. The difference is very great be

tween giving an interest to a person while he shall remain solvent, and then over; and giving it for life. If there be a limitation over in the event of insolvency or bankruptcy, then neither the person so becoming bankrupt or insolvent, nor his assignees, can take any benefit beyond the terms of the will. In the case which arose upon Lord Foley's will, 6 Ves. 364, it was argued, and I thought admitted, that if the estate went to the sons as property in them, all the consequences must attach.

In regard to property given to the separate use of married women, the directions originally were, that the money was to be paid into their proper hands, and their receipts alone to be a discharge; it was held that a married woman might dispose of property so given to her, and that her assignee might take it, as this court would compel her to give her own receipt, in affirmance of her own contract. In Miss Watson's Case, the words, and not by anticipation, were introduced by Lord Thurlow his reasoning was this; I do not hereby take away any of the incidents of property at law; this interest which a married woman is suffered to take, is a creature of equity, and equity may modify the power of alienation.

But it is quite different if the power is for life; supposing that the bankrupt makes out, that he never has an interest, till he attends personally; the act of his receipt being absolutely necessary: yet if he was never to attend, or to give that receipt, and arrears were to accumulate, it is clear that those arrears would be assets for his debts. It is not enough that the testator has said, the fund shall not be transferred; in order to prevent that, it must be given over to somebody else. Unless therefore by implication, it falls into the residue, it is an equitable interest, to which the assignees are entitled.

As to the principal fund after the death of the bankrupt, the conclusion is different; the intention of the testator is, "this is my gift my personal estate," not that of the bankrupt's; to go as my property to certain persons whom I point out by the description of his, the bankrupt's next of kin. This demurrer must be overruled.1

GREEN v. SPICER.

(Court of Chancery, 1830. 1 Russ. & M. 395.)

Robert Pinning the elder, by his will, devised certain real estates to John Spicer and Daniel Robertson, and their heirs and assigns, "upon trust to let and manage the same, and receive the rents, issues, and profits thereof, and to pay and apply the same rents, issues, and profits to or for the board, lodging, maintenance, and support, and benefit of my son Robert Pinning at such times and in such manner as

1 S. C. 18 Ves. 429.

they shall think proper, for and during the term of his natural life; it being my wish that the application of the rents and profits for the benefit of my said son may be at the entire discretion of the said John Spicer and Daniel Robertson, and the survivor of them, and the heirs and assigns of such survivor, and that my said son shall not have any power to sell or mortgage, or anticipate in any way the same rents, issues, and profits, or any rents, issues, and profits, dividends or interests, derived under this my will."

Robert Pinning the younger had taken the benefit of the Act for the Relief of Insolvent Debtors; and the bill was filed by the assignee, praying that he might be declared entitled to the rents and profits of the devised hereditaments during the life of Robert Pinning the younger.

THE MASTER OF THE ROLLS [SIR JOHN LEACH]. The question in the cause is, whether the testator's son Robert Pinning takes any estate or interest, under the will, other than by the exercise of the discretion of the trustees.

Robert Pinning takes a vested life estate of which the trustees cannot deprive him by any exercise of their discretion: they are bound to apply the rents, issues, and profits for the benefit of Robert Pinning, and their discretion applies only to the manner of the application. Decree for the plaintiff.

SNOWDON v. DALES.

(Court of Chancery, 1834. 6 Sim. 524.)

By a deed-poll of the 7th of December 1821, after reciting two indentures by which J. Crosby assigned two mortgage-sums of £1,000 each, to trustees upon such trusts, &c. as he should appoint: It was witnessed, and Crosby did thereby appoint that the trustees should stand possessed of those sums, in trust for himself for life, and, after his decease, in trust to pay thereout £500 and £700 to his wife's daughters, Susannah Hepworth and Anne Thompson, respectively; and, as to the remaining £800, in trust, during the life of John Doughty Hepworth, his wife's son, or during such part thereof as the trustees should think proper, and at their will and pleasure but not otherwise, or at such other time or times, and in such sum or sums, portion and portions as they should judge proper and expedient, to allow and pay the interest of the £800 into the proper hands of the said J. Doughty Hepworth, or otherwise if they should think fit, in procuring for him diet, lodging, wearing apparel and other necessaries; but so that he should not have any right, title, claim or demand in or to such interest, other than the trustees should, in their or his absolute and uncontrolled power, discretion and inclination, think proper or expedient, and so as no creditor of his should or might have any lien or