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Where by the terms of a will an absolute fee is granted, the devisee will take the title unincumbered by a subsequent provision against alienation; as such a provision is void.
F. M. Ogle died testate about July 17, 1907. His will was duly admitted to probate, and this action was brought by the administrator. The administrator, who is appellant, claims that the fourth paragraph of the will is void because it creates an estate in perpetuity, which can neither be sold nor mortgaged either by the devisee or her heirs. Reliance is placed upon section 2901 of the Code, which reads as follows: "Every disposition of property is void which suspends the absolute power of controlling the same, for a longer period than during the lives of persons then in being, and twenty one years thereafter." Arguing that this paragraph is void, he further contended that the estate attempted to be created thereby passed to the residuary legatees under the fifth paragraph of the will.
Was the restraint on alienation in the will valid?
The court held that to make the restraint on alienation obligatory would be to sanction a testamentary guardianship over parties, not subject to that species of control. The court found these considerations sufficient to dispose of the case, and to show that, as in Hall v. Tufts, 35 Mass. 455, 18 Pick. 459, and Blackstone Bank v. Davis, 38 Mass. 42, 21 Pick. 42 (32 Am. Dec. 241), the intent expressed is contrary to law, or at least one which courts can not enforce. It may be observed, however, that if the devise be upon condition that condition is what is known as a condition subsequent. Such a condition, if repugnant to the nature of the estate devised, will be absolutely disregarded and the devisee will take absolutely. As said by Underhill, in his work on Wills, vol. 1, sec. 491: "The condition is absolutely void, and the devisee will take the property discharged from it. A man can not give property absolutely and at the same time provide that it shall not be enjoyed by the devisee according to law." This proposition is sustained by abundant authority and in no case more strongly than in McCleary v. Ellis, supra. As the condition against alienation is entirely void, Ida Ogle Lawyer took an estate in fee, and the trial court was correct in its conclusion. The decree must be, and it is, affirmed.