It is claimed that under the provisions of the will of his father, a sale by the plaintiff of his interest in the lot in controversy would work a forfeiture of such interest, and at once vest the estate in remainder; and that a sale of such interest on an execution against the plaintiff would produce the same results.
It is quite probable that the will might have been so framed that an alienation of the plaintiff’s interest in either of the modes just mentioned would determine his estate in the lot. Judge Redfield, in his treatise on the law of wills, says: “ There is no question the testator may bequeath property for the mere purpose of benefiting the donee personally, and provide that no creditor or purchaser shall take any interest or benefit of the same. * * * And it is now settled, that if such is the clearly declared purpose of the testator, the bequest will fail upon the legatee or devisee becoming insolvent or bankrupt, even where it occurs during the life of the testator; .and any gift over will immediately take effect, in that case, upon rthe death of the testator. ” And again he states as a rule, “ that «either a life or ah absolute estate by bequest may be legally so framed as to cease upon the happening of a particular event.” Mol. % pp. 668-9.
But we have no such case before us. The testator devised to the plaintiff a life estate in the lot, and, although he restricted the plaintiff from selling the same, it does not appear that he provided that the estate so devised should terminate in the event of an alienation thereof. Railing so to provide, the rule is stated by the same learned author to be, “ that property cannot be given either for life, or absolutely, without the power of alienation being incident to the gift.” Yol. 2, p. 668.
*691Unless protected by the homestead laws, we conclude that the interest of the plaintiff in the lot in controversy is liable to be sold by virtue of an execution issued on a judgment against him.
II. It is further claimed on behalf of the plaintiff, that it was competent for him to sell his original homestead and acquire another homestead, without the latter being subject to the lien of a judgment previously recovered against him. This is doubtless a correct position, provided such lien had not attached thereto before it became the plaintiff’s homestead. If a judgment debtor who owns two lots of land, one of which is his homestead, sells his homestead and thereafter occupies the other lot as such, we do not understand that the lien of the judgment thereon is thereby removed. Hence, in this case, it becomes important to determine whether the judgment had become a lien upon the plaintiff’s interest in the lot in controversy before he occupied it as a homestead. If it did, it seems clear that such occupancy did not divest the lien.
III. "We are thus brought to consider the question, "When did the interest or estate devised to the plaintiff, vest in him ? If it so vested at the death of the testator, the judgment then became a lien upon it, and the subsequent occupancy of the lot by the plaintiff as his homestead could not operate to divest such lien, or deprive the judgment creditors of the plaintiff of their right to have his interest in the lot sold on execution. But if the title only vested in the plaintiff from the time the will was proved in the county court and allowed, it would seem that the judgment never became a lien, and that the plaintiff is entitled to the relief demanded in the complaint.
The position of the plaintiff is, that he had no estate whatever in the lot until the will of his father was proved; and to support the same he relies mainly upon the following statute: “Ho will shall be effectual to pass either real or personal estate, unless it shall have been duly proved and allowed in the county court as provided in this chapter, or, on appeal, in *692the circuit court or supreme court; and the probate of a ■will of real or personal estate, as above mentioned, shall be conclusive as to its due execution.” R. S., ch. 97, sec. 21 (Tay. Stats., 1207, § 21).
The same provision is found in the statutes of several of the states, and has often been considered by the courts, and, so far as we are advised, the decisions have been uniformly against the construction contended for bj the plaintiff. The reasoning of Judge Story in Ex parte Fuller, 2 Story C. C., 332, when considering the same provision in the statutes of Maine, is entirely satisfactory to our minds; and we adopt his construction of the statute, without hesitation, as the true one. After quoting the statute, the learned judge says: “By the probate, when granted,'the will, under the section, takes effect by relation back from the death of the testator. It recognizes and vests the title in the devisee from that moment. It would otherwise happen, that if he should die before the probate, having accepted of the devise, no title could vest in him; but the bounty of the testator would be defeated. Such a construction of the section would be productive of the grossest mischiefs; and there is not a word in the section which authorizes or even countenances it. The section only provides, that no will shall be effectual to pass real estate, unless it shall have been duly proved; not, until it shall have been duly proved. When proved, it is to all intents and purposes a will; and it is to operate upon the interests of the testator when he intended, that is, from the time of his death.”
In the brief of counsel for the plaintiff, the case of Markwell v. Thorn, 28 Wis., 548, is cited as an authority against the views above expressed. It is true that the probate of a will is incidentally mentioned in that case as passing title to a devisee. The expression is inaccurate. It should have been said that the probate rendered the will effectual to pass the title. But the inaccuracy is entirely immaterial in that case. The question there determined was the effect upon the title of a devisee *693of a failure to issue letters testamentary after probate, and it was beld that, “ the issuing thereof is not a condition precedent to rendering the will thus allowed effectual to pass the title.” (P. 559).
Upon the whole case we are of the opinion that the complaint fails to state a cause of action, and hence, that the demurrer thereto was properly sustained.
By the Court. — Order affirmed.