Conger v. Lowe

• Decision Date: 18 June 1890
• Citation: 24 N.E. 889,124 Ind. 368
• Parties: Conger et al. v. Lowe et al.
• Court: Indiana Supreme Court

124 Ind. 368

24 N.E. 889

Conger et al.

v.Lowe et al.

Supreme Court of Indiana.

June 18, 1890.

Appeal from circuit court, Fulton county; Isaiah Conner, Judge.

Jas. H. Bibler and Holman & Stephenson, for appellants. Rowley & Baker and Essick & Montgomery, for appellees.

Mitchell, J.

The controversy here is over the construction of a clause in the last will and testament of Lewis B. Conger, late of Fulton county, deceased, which reads as follows: “My beloved wife, Hannah, is to have and to hold the two above-described pieces of land during her lifetime. At her decease, I will, devise, and bequeath the same to my son Samuel M. Conger during his natural life-time, provided he will live on and occupy the same. At his death, or his refusal to live on or occupy the same, then, and in that case, as well as at the said Samuel M. Conger's death, I will, devise, and bequeath the same to the said Samuel M. Conger's lawful heirs.” The testator died in 1874, and at the time of his death his son Samuel M. Conger had four children living, born in lawful wedlock. Others have been born to him since. The testator's widow died in 1880. Upon the death of his mother, Samuel M. took possession of the farm devised to him as above, and occupied it with his family until the 21st day of May, 1886, when he conveyed it by warranty deed to Louisa Lowe, wife of Peter D. Lowe, since which time he has ceased to live upon or occupy the land. This suit is by the children of Samuel M. Conger, who is still in life; their claim being that, under the will of their grandfather, the title vested in them, and that they became entitled to the possession when their father abandoned and conveyed away the farm. It is abundantly clear that the purpose of the testator was (1) to create an estate for life in his widow, with a remainder over for life to his son Samuel M.; and (2) to limit the fee over to the “lawful heirs” of his son, the limitation over to take effect in possession, either upon the refusal of his son to occupy the land, or upon his death. Shortly expressed, the devise was to Samuel M. Conger for life, upon condition that he occupy the estate, with a limitation over in fee to his “lawful heirs,” to take effect upon the death, or upon the refusal of the life-tenant to occupy.

A preliminary inquiry arises concerning the validity and effect of the condition, which makes, or attempts to make, the precedent life-estate of Samuel M. defeasible upon his failure or refusal to occupy the land. The purpose and practical effect of the condition was to impose a restraint upon the power of the life-tenant to alienate his estate in the land, either voluntarily or involuntarily. Surely, if the continuance of his estate depended upon his taking and remaining in possession during his life-time, his power to sell was effectually restrained; for of what value was the right to sell, if the estate sold was defeated the moment the vendor put the purchaser into possession? It is a settled rule in the law that conditions in conveyances or devises in fee, in general restraint of the power of alienation, are void, as being contrary to the policy of the law, and inconsistent with and repugnant to the estate granted. Allen v. Craft, 109 Ind. 476, 9 N. E. Rep. 919; Mandlebaum v. McDonell, 29 Mich. 78;McCleary v. Ellis, 54 Iowa, 311, 6 N. W. Rep. 571, 20 Amer. Law Reg. 180, and note; De Peyster v. Michael, 6 N. Y. 467; Gray v. Blanchard, 1 Shars. & B. Lead. Cas. Real Prop. 130; 6 Amer. & Eng. Enc. Law, 877.

Where, however, an estate for life or years is created, with a reversion to the grantor, or a valid remainder over to designated persons, conditions imposing restrictions and qualifications upon the power to alienate or use the estate are valid and maintainable upon reason and authority. Even estates in fee-simple may be subjected to valid limitations over, and be made defeasible or subject to forfeiture, upon condition that the grantee or devisee uses or fails to use the estate in a particular way, or for a particular purpose, or conveys it to a certain person, or to any person whatever, or allows it to be sold on execution, or to become incumbered, or the like. Where a precedent estate is made defeasible upon the happening of a certain event, which event also marks the taking effect in possession of a valid limitation over, the happening of that event puts an end to the precedent estate, and gives the right of possession to the person in whom the remainder or reversion is vested. The foundation of the power to restrain alienation rests upon the fact that there remains or is vested in some one a valid remainder or reversion, whose estate in possession is contingent upon some event which defeats the precedent estate, and who is entitled to take advantage of the prohibited act or use. Harmon v. Brown, 58 Ind. 267; O'Harrow v. Whitney, 85 Ind. 140; Mandlebaum v. McDonell, supra; De Peyster v. Michael, supra.

If, then, it shall be found that the devise created an estate for life in Samuel M. Conger, defeasible upon the condition that he refused to occupy, with a valid reversion or remainder over in fee to persons who are entitled to take advantage of the condition, it must follow that the condition was valid and enforceable. In that event, creditors, purchasers, all persons dealing with the land, were chargeable with notice of the will, and of the defeasible character of the estate of the devisee, and of the fact that it was limited over to others to take effect upon the refusal of the life-tenant to occupy. We adopt the language of Mr. Justice Miller in Nichols v. Eaton, 91 U. S. 716, wherein the learned justice says: “Nor do we see any reason, in the recognized nature and tenure of property, and its transfer by will, why a testator who gives-who gives without any pecuniary return, who gets nothing of property value from the donee-may not attach to that gift the incident of continued use-of uninterrupted benefit of the gift-during the life of the donee. Why a parent, or one who loves another, and wishes to use his own property in securing the object of his affection, as far as property can do it, from the ills of life, the vicissitudes of fortune, and even his own improvidence or incapacity for self-protection, should not be permitted to do so, is not readily...