Goe's Estate 4 223. In Goe's Estate the testatrix, after a direct gift to her children in equal shares, provided: "It is my distinct will and desire that none of the effects, real, personal or mixed, as above devised and bequeathed to my children or to either of them, can be seised upon or levied upon for any debt against any one of my said children." The share due one of the legatees was attached in the hands of the executor, by an attachment served December 13, 1889. The legatee had previously assigned his interest by an assignment dated August 17, 1889, and the contest was between the creditor and the assignee. The court below awarded the fund to the assignee, which, on appeal, the Supreme Court affirmed. The remarks of the court as to the prohibition of involuntary alienation were dicta, as the legatee had previously assigned his interest, which assignment would operate to defeat the clause against involuntary alienation, even if it were valid. The report does not state whether the assignee gave notice before the attachment was served or not. If he did, the decision is clear. If not, since the wording of the restraint provided only against involuntary alienation, and the fund was awarded to a voluntary assignee, the decision would also be correct on that ground. Summary of Law in Pennsylvania as to Validity of Prohibition of Involuntary Alienation of an Absolute Legal Interest 7 8 224. No other cases have been found, and as the dictum in Keyser's Appeal and the dicta cited are express authorities against the validity of the clause, and Goe's Estate and Beck's Estate can both be explained, it may be said that it is the law in Pennsylvania that a clause prohibiting the 9 146 Pa. 431 (1892). Mr. Gray, Restraints on Alien., 2 ed. (1895), §124g, reconciles Beck's Est., Goe's Est., and Keyser's App. by understanding Keyser's App. to relate to a legal interest, and that Beck's and Goe's Ests. are uncontradicted authorities that an equitable fee can be subjected to the clause against alienation. It is believed, however, that Beck's Est. and Goe's Est. are to be explained as above stated, involuntary alienation of a legal estate in fee in real estate or legal absolute interest in personal property is void, notwithstanding the unfortunate remarks in Willard v. Davis.10 At any rate, the way is open to the Supreme Court to reach such a conclusion on the authorities, and that such a result is eminently desirable is submitted in another part of the discussion.1 The Supreme Court may, however, refuse to disregard the dicta in Goe's Estate and Beck's Estate, and say that those cases sustain the principle that the testator may exempt a legacy in the hands of his executors from an attachment. While such a conclusion is possible, if it is reached, it should be limited expressly to the case of an attachment against a legacy. It is submitted, however, that it is certainly possible and desirable to disregard these dicta. 10 3 Penny. 86 (1882), stated §221, ante. 1 See §§252-254, post, discussing the arguments for and against the validity of the clause. Wanner v. Snyder distinguished from Hahn v. Hutchinson §234 $235 Clause of Forfeiture for Voluntary Alienation 225. A clause of forfeiture for the voluntary alienation of a life estate is valid at common law. No Pennsylvania case on this point has been found, and there seems to be no reason why the law should be different. A like restraint is void when attached to a fee, as opposed to public policy." In the case of a life estate the considerations are different. The clause is valid because the forfeiture of the life estate accelerates the next estate in remainder, and thus hastens the return of the fee to its former undivided condition.3 1Gray, Restraints on Alien., 2 ed. (1895), §§78, 90. 2 See $187, ante. 3 See $333, post. Preliminary Discussion as to Prohibition of Voluntary 226. Where there is a not assign or alienate the Alienation provision that the life tenant shall estate, that is, a direction that he cannot rid himself of it, the provision is void at common law.* The law in Pennsylvania is in doubt. The only case which has been found will now be discussed. Turner v. Fowler 227. In Turner v. Fowler a testator devised to his daughter A., a certain part of a tract of land, and gave the remainder to be equally divided between his daughter B. and son C., and then provided as follows: "And further my will is that neither A., B. nor C. is not to sell their right in or to said land to any but he or she who is in possession of the remainder, and at the decease of the last of said three, if B. has no heirs, said land is to descend to the male heirs of my other sons." C. sold to the plaintiff, who claimed an ejectment against the widow of the son B. who was in possession. C. being still alive, judgment for the plaintiff was affirmed on appeal. Sergeant, J., said that A., B. and C. each took life estates with cross-remainders to the survivors for life, and that there was an executory devise over at the death of the three; that the plaintiff could recover on C.'s life estate; that B. had, by purchasing another title in his lifetime, put himself in a position of claiming in another right not under the will, for which reason C. was exempt from performing the condition so far as B. was concerned, and the judgment of the lower court, which was that the plaintiff had a fee, was affirmed.' Pennsylvania Law as 228. This is the only Pennsylvania case presenting the question as to a legal life interest which has been found, and as Gray, Restraints on Alien., 2 ed. (1895), §134. 5 Gray, Restraints on Alien., 2 ed. (1895), $134, says that such provision is void in Pennsylvania, citing Hahn v. Hutchinson, 159 Pa. 133 (1893), see §232, ante; Erisman v. Sener, 162 Pa. 577 (1894); see $231, post. Neither case is in point, as they both arose upon a clause against involuntary alienation. 610 Watts, 325 (1840). 7 Sergeant, J., in the Supreme Court said, that if C. could recover, the plaintiff could; that if the words amounted to it can be explained on other grounds, the case can hardly be said to be an authority for the proposition that such a prohibition is valid. As the common law is the other way, and there is no reason why the law should be different in Pennsylvania, the statement may be ventured that a prohibition of the voluntary alienation of a legal life interest is void in Pennsylvania. Forfeiture for Involuntary Alienation 8 229. A clause of forfeiture upon the involuntary alienation of a legal life estate or interest, is valid at common law. No Pennsylvania case on the point has been found, and in the absence of any authority to the contrary, the common law may be said to prevail. Preliminary Discussion of Prohibition of Involuntary Alienation 230. A prohibition against the involuntary alienation of a life estate or interest is void at common law. If the proviso has the effect of making the life tenant lose his estate upon involuntary alienation, it is valid. If it is an attempt to exempt the life estate from involuntary alienation, it is void. The law in Pennsylvania as to the validity of a prohibition of involuntary alienation of a legal life interest is not altogether clear. The cases are as follows: Erisman v. Sener 231. In Erisman v. Sener 10 a woman devised all of her estate to her husband for life, and directed the same to be sold after his death, and divided among her children, and used the following language: "And in no event shall my property be sold until my son Edward B. shall have attained the age of twenty-one years. And no encumbrances or liens to be placed on the same during the lifetime of my said. a trust, the defendant could only defeat the plaintiff's right by tendering to him the purchase money; that as a condition, the words were ineffective, as there was no limitation over upon the condition broken, and no reservation of a right of entry to the devisor or his heirs for condition broken. 8 Gray, Restraints on Alien., 2 ed. (1895), §§78, 80. 9 Gray, Restraints on Alien., 2 ed. (1895), §134. 10 162 Pa. 577 (1894). |