Forfeiture for Involuntary Alienation 217. No Pennsylvania case has been found of a clause of forfeiture upon the involuntary alienation of an absolute legal interest. There seems to be no reason why such a proviso should not be valid. A man may be made to lose his estate upon almost any conceivable contingency, so long only as the contingency is lawful and happens within the period prescribed by the rule against perpetuities.' There is nothing unlawful about involuntary alienation; indeed, it is alienation prescribed by law. A similar limitation on voluntary alienation is admittedly void.2 Voluntary alienation is a lawful act. Why should there be any difference? The distinction is this: a clause of forfeiture on voluntary alienation prevents the owner from disposing of the property, as it precludes him from ever getting any value for it. It therefore ties up the property, and is within the principles of public policy already discussed. A clause of forfeiture upon involuntary alienation 1 See Part III on the rule against perpetuities. 2 See $187, ante. 3 See §§11 and 12, ante. only prevents the creditor from getting the property, and the law takes no account of this contingency so long as the debtor cannot keep it as against the creditor. The fact that a debtor loses his estate just as the creditors are about to take it, may be a hardship on them, but is no greater or different hardship than that suffered by the creditors of the life tenant when the estate expires, or by the creditors of a debtor who holds an estate subject to an executory devise which takes effect and deprives them of the chance to satisfy their claims. It may be concluded, therefore, although there is no authority for the proposition, that a clause of forfeiture upon involuntary alienation of an absolute legal interest is valid, provided it does not violate the rule against perpetuities. Preliminary Discussion of Prohibition of Involuntary в 218. A clause prohibiting the involuntary alienation of an absolute legal interest, is void at common law,5 and there are some dicta in Pennsylvania to the same effect. The law in Pennsylvania, however, may be otherwise.' The cases will now be discussed. Curtis v. Longstreth 8 219. In Curtis v. Longstreth the devise was to A. for "his natural life, not to be sold or exchanged while he lives, and at his death to vest in his heirs as tenants in common." A.'s title was sold by the sheriff, and the court said that the purchaser took a good title. A. had an estate tail, which was turned into an estate in fee by the sheriff's sale, under the provisions of the Act of April 15, 1859. This case is not strictly in point, being a case of a prohibition on an estate Mr. Gray appears to draw no distinction between voluntary and involuntary alienation with respect to an absolute interest. 5 Gray, Restraints on Alien., 2 ed. (1895), §§113-115. Sprankle v. Commonwealth, 2 Walk. 420 (1884). Kaufman v. Burgert, 195 Pa. 274 (1900), semble. Sharswood, J., in Ingersoll's App., 86 Pa. 240 at 245 (1878), speaking of the power of dispo sition of the testator, said: "There are many things he cannot do, however clearly he may intend it. He cannot create a fee and clog the power of alienation, or relieve it from liability for debts." 7 For a discussion of the arguments for and against the validity of the clause, see $8252-254, post. 8 44 Pa. 297 (1863). 9 P. L. 670. tail. The learned reader, however, will observe from an examination of the case, that it was evidently not considered worth while at that time to argue that the prohibition was valid when attached to an estate tail. A fortiori it would be void when attached to a fee. Keyser's Appeal 220. In Keyser's Appeal 10 a cestui que trust of an absolute equitable interest was permitted to terminate the trust, notwithstanding a clause against involuntary alienation. The question as to the validity of the clause would not be before the court until there was an attempt by creditors to reach the legal interest. The court said, however, that since the clause was invalid as to a legal fee, the trust was not active and the statute of uses applied." The remarks of the court, therefore, as to the validity of the clause, were probably dicta. Willard v. Davis 221. In Willard v. Davis' there was an absolute gift to a son, without liability for any indebtedness of his, with a further proviso that the executors should hold it in trust, and that they might, in their discretion, after five years give the son full and complete control of his estate. The question as to discretion was not discussed or passed upon. The court held, on a case stated, that the son had a marketable title to his share in the property devised, on the ground that the words "giving the executors control" were void as inconsistent with an absolute grant. Ewing, P. J., in the court below, said, "the attempt is, after granting a fee simple absolute to appoint a guardian to take charge of the property for the life of the devisee, and to declare the property free from liability for the debts of the owner. This cannot be done. It is inconsistent with the grant, and especially it cannot be done without the use of apt words, which are wanting in the will." The decision is sound, but the language of the court is unfortunate as countenancing the view that such a restraint can be imposed by appropriate words. 10 57 Pa. 236 (1868), stated §246, post. 11 See §131, ante, for a discussion of this point. * * Beck's Estate 222. In Beck's Estate 2 the testatrix gave her step-daughter, Elizabeth, certain chattels and a share in the residue of her estate, and after declaring that this share was in consideration of work done and attendance during her late illness, provided as follows: "And whereas, said Elizabeth Beck was unfortunate in business transactions, whereby she became indebted, part of which still remains unpaid, and having no means to pay the same, now it is my will, that the above equal share in my estate, as well as the specific bequest given to her, are given to her expressly upon condition that they shall not be liable to be attached or seised for the debts or moneys which said Elizabeth Beck may owe at the time of my decease, but that the whole amount of her share shall be paid directly to said Elizabeth Beck by my executor without diminution for the payment of her said indebtedness." The funds due Elizabeth in the hands of the executors, apparently the share of the residue, were attached by a judgment creditor. The court awarded payment to Elizabeth instead of to the attaching creditor. It was found as a fact by the auditor in the court below, that the share due Elizabeth was wages, and therefore, not the subject of attachment. As the attachment seems to have covered only this share, and not the specific chattels, the case seems to be properly decided on that ground, without reference to the clause against alienation.3 2 133 Pa. 51 (1890). 3 It was suggested by the learned auditor, at p. 53, and by Mr. Gray, Restraints on Alien., 2 ed. (1895), §124g, that the executor was a trustee; by the auditor, on the ground that the will directed the executor to pay the money directly to Elizabeth, thereby constituting, as to that, a special trust which is the ground on which Chief Justice Paxson went in the Supreme Court; by Mr. Gray on the ground that the legatee did not have the legal title until the payment of the legacy or the assent of the executor, and therefore, the executor was a trustee for Elizabeth. It is difficult, however, to see why there was not as much assent here by the executor as there ever is in prac tice. The only thing which stood between Elizabeth and the payment of her legacy was the attachment. The executor having filed his account, had no further voice in the matter. Under the law as it formerly stood, when the legatee had a remedy in the Common Pleas no assent by the executor was necessary; Holloback v. Van Buskink, 4 Dallas, 147 (1795). The remedy of the legatee is now exclusively in the Orphans' Court: Ashford v. Ewing, 25 Pa. 213 (1855), and the question as to necessity of assent by the executor seems to have become obsolete. If there was a trust, who was the cestui que trust, and why did not the legal and equitable titles merge? |