The opinion of the court was delivered by
Sergeant, J.The testator devises 4 acres of his tract of land, designating the part, to his daughter Nancy. The remainder of the tract he gives equally between his two other children, .Sarah and .William Turner, together with the cattle, &c.; and he then declares his will to be, that “ neither Sarah, William, and Nancy, 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 the said three, . (if William has no heirs,) said land is to descend to the male heirs of his other sons.”
. This is a devise to the three children for their lives, with cross remainders over for life, to the survivors and survivor by implication: for the devise over is not to take effect until the death of all. There is nothing in the language used that tends to give a fee to Sarah — the devise is of the tract of land, as such, and is limited over, after their-decease, to others. This devise over is an executory devise, of an alternate character, either to the heirs of William, or, if he has none at his death, then to the male heirs of his other sons. What the nature of these, estates over is, it would be improper to decide now, for the parties interested in them are not before us, nor has the question been raised in the cause.
Being entitled, then, to an estate for life, were Sarah Turner the plaintiff in this ejectment, she might recover her moiety of the residue of the tract. But the defendant contends, that the plaintiff, as her alienee, is not entitled to recover, because the devise to her was accompanied by a prohibition or restriction, that she should not alienate to any but the persons in possession of the remainder of the tract, which, in this instance, it would seem, Nancy was as to her 4 acres, and William as to the residue. What is the exact legal character of such a restriction in a will, is by no means clear. It is not expressed in terms of condition, but is merely an expression of the testator’s desire or will, that no such alienation should be made. In later times, the expression by a testator of a thing, as his desire or recommendation, where the property and objects are certain, is considered as raising a trust; 3 Sch. & Lef. 189; 1 Bro. Cha. Cas. 179; Ambl. 520; 5 Madd. 434; 9 Mod. 122, S. C.; 8 Vin. 72, pl. *32827, though it has been considered by some, that the doctrine has been carried further than is consistent with sound policy and convenience; 1 Jarman’s Pow. Dev. 354, note. And if any part of the doctrine is open to this observation, it is that which relates to restraints on alienation, which have been always looked at with an unfavourable eye. Taking it, however, as a trust, the effect of it would only be to enable William and Sarah, the other children, who were co-tenants for life, to claim it of the purchaser from Nancy, on tendering to him the value, on the ground that he took the property impressed with the trust. It would have no operation in barring the plaintiff’s claim, at present, as purchaser.
Considering it, however, as a condition, (and it is doubtful whether the words are sufficient for that purpose,) the result would be equally unfavourable to the defendant. A condition not to aliene, annexed to a feoffment or devise in fee, is void, being absurd and repugnant. Co. Litt. 223. A condition annexed to an estate in tail not to aliene in fee, or in tail, or for life, is good: though to prevent a common recovery, it is void. Co. Litt. 223-6. A condition annexed to a lease for life, or years, that the lessee shall not grant over his estate, or let the land to others, is good. Co. Litt. 223-6. It is, however, a condition subsequent; one which is to defeat an estate already vested: and it must not only be shown to have been broken by alienation, but also that the heir entered for the condition broken; whereas in this case, there is no limitation over to another for the residue of the life estate, in case any of the devisees should aliene to a third person. It is strictly a condition, (if a condition at all,) and not a conditional limitation. There is no evidence that William Turner entered, or claimed to hold the possession under the will, for any condition broken. On the contrary, there is some evidence that he purchased in another title of one Campbell, a different one from the testator’s, and claimed to hold the tract under that title. There is no evidence that he ever offered or desired to purchase Nancy’s interest. And if, in consequence of this purchase, he claimed the whole land in his own right, independent of the devise in the will, she might then freely transfer and sell the right to another: for by the act of William Turner, in disclaiming the title under the will, she was exempted from the performance of the condition, and in fact disabled from performing it, so far as regarded him. It was to this effect the court below charged, and we think, then,they were right in so charging.
Judgment affirmed.