Opinion
(June Term, 1866.)
A clause annexed to a devise in fee, providing that in case either of the devisees "shall sell, or encumber his land with any sort of lien, by way of mortgage or otherwise," before attaining the age of thirty-five years, then the devise should be void, is invalid.
THIS was a bill filed at Fall Term, 1864, of RUTHERFORD, in order to obtain a construction of the will of Robert G. Twitty, deceased.
Bynum, for the complainant.
No counsel for the defendant in this court.
One of the questions made in the bill referred to certain slaves that had been bequeathed by the testator. The clause of non-alienation, referred to in the opinion of the court, was as follows: "Item 7. It being my desire that my children should enjoy the benefit of the property which I have given them; and believing that they can not be better located than upon the lands which I have respectively given them, I therefore desire this condition to be annexed to each separate devise of land, and I do hereby make it a part of this my last will and testament; that is to say, that in case either one of my children shall sell or encumber his land with any sort of lien, by way of mortgage or otherwise, before they attain the age of thirty-five years, then the devise to them of their respective parts of land to be void, and my will is that it fall back to such of my children as may be living. It (62) is, however, my will that should any of my children marry, and have heirs, and die before they attain the above age, then that their children shall inherit their father's and mother's lands."
No further statement of the contents of the bill or answer is necessary.
In the events which have happened since the death of the testator, it has become unnecessary for us to decide the question raised in respect to the slaves given to his daughter, Mary Jane.
The only inquiry pressed upon us relates to the clause of non-alienation annexed to the devises of land to each of the testator's children. These devises are in fee simple, and the condition, by which the testator has attempted to restrain the alienation of the land before the devisees respectively attain the age of thirty-five years, is contrary to the nature of the estate, and is therefore void: See Pardue v. Givens, 54 N.C. 306, where a condition restrictive of the power of free alienation was pronounced a nullity. The present case differs from that only in the circumstance, that here the restriction is confined to a disposition of the land under the age of thirty-five years. But this, we think, makes no difference. If the testator had the power to impose such a condition for thirty-five years, he might have imposed it for fifty, seventy or a hundred years, for we are not aware of any particular age up to which the restriction would be good, and beyond which it would be bad. Coke, Blackstone, and other elementary writers lay down the rule generally that a condition of non-alienation annexed to the conveyance (63) inter vivos, or to a devise of a fee, is void, because it is inconsistent with the full and free enjoyment which the ownership of such an estate implies. Our conclusion is, that the devisees in fee under the will before us have the full power of selling, or otherwise disposing of their lands respectively, without the danger of incurring a forfeiture for so doing. A decree to that effect may be drawn accordingly.
PER CURIAM. Decree accordingly.
Cited: Hardy v. Galloway, 111 N.C. 523; Latimer v. Waddell, 119 N.C. 377; Ricks v. Pope, 129 N.C. 55; Wool v. Fleetwood, 136 N.C. 465.