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 essent 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? 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.5 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 6 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.2 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. |