« AnteriorContinuar »
defendants, nor to a resident plaintiff suing a want of jurisdiction. The supreme court re nonresident defendant, from ihe necessity of versed this ruling, holding that the court bad the case; that, if a nonresident could not be jurisdiction. See also, as to jurisdiction over . sued in any county where he could be found, nopresident defendant, Peabody v. Hamillon, he could not be sued at all. In that case the 106 Mass. 217; Molyneux v. Seymour, 30 Ga. plaintiff was a nonresident of the county where 440, 76 Am. Dec. 667, note; W barton, Conf. The suit was brought, and the defendant was a L. S 738, 739; Smith v. Gibson, 83 Ala. 284; nonresident of the State. The action was Roberts v. Knights, 7 Allen, 449; Barrel! v. transitory, and we held the court had complete Benjamin, 15 Mass. 354; Miller v. Black, 2 jurisdiction.
Jones, L. (N. C.) 341; Stramburg v. Heckman. Whether courts ought to take jurisdiction in Busb. L. 250; McCormick v. Pennsylvania R. suits between aliens, wben the cause of action Co. 49 N. Y. 303; Campbell v. Wilson, 6 Tex. arose in a foreign country, is not the question 379. in dispute bere. If it were, I should be willing The case of McCormick v. Pennsylvania R. to follow the views expressed by Chief Justice Co., supra, was a case where a nonresident of Marshall in Mason v. The Blaireau, 6 U. S. 2 the State of New York sued a foreigo corporaCranch, 240 (2 L. ed. 266). In that case the tion upon a cause of action wbich was transiwant of jurisdiction was urged, and in deliver- tory in its pature, and arose in another State. ing his opinion le said: “These doubts seem The defendant had appeared voluntarily by rather founded on the idea that, upon prin. attorney. Mr. Justice Folger said: “We bold ciples of general policy, this court ought not that, where the court bas the jurisdiction of to take cognizance of a case entirely between the subject matter or cause of action, that conforeigners, than from any positive incapacity sent may confer jurisdiction of the person, to do so. On weighing the considerations and that such consent may be expressed by drawo from public convenience, those in favor a foreign corporation by appearing by attorney of the jurisdiction appear much to overbalance and answering generally in the action." those against it, and it is the opinion of this The next reason given by the circuit judge court that, wbatever doubts may exist in a case is that if jurisdiction conferred by consent it wbere dhe jurisdiction may be objected to, does not become obligatory upon the court to there ought to be none where the parties assent entertain jurisdiction. The correctness of this to it.
position must depend upon the right of the In suits between foreigners, brought in our plaintiff to seek redress in the courts of the courts, the courts are not obliged to entertain State. If a party has a right to plant his suit jurisiliction. They may and usually do so in a circuit court of this State, the circuit judge upon principles of comiiy, and seldom decline, bas no discretion to exercise in the matter. He excepi ibrough a fear that they may not be cannot say to one suitor, “I will retain your capable of doing full and exact justice through suit,” and to another, “I will dismiss it.” It a want of knowledge of the laws of the place is among the fundamental rights of a people where the cause of action arose, wbich enter under one government that they may be se into and make a part of the coutract, or affect cured in the acquirement, possession and enthe rights and remedy of the parties.
joyment of property, and for this purpose In Great Western ŘCo. v. Miller, 19 Mich. courts are instituted as part of the Organic 305, the plaintiff was a resident of Canada, and Law, in which every person shall bave his brought suit against the railroad company in remedy by due process of law. It is secured Wayne Circuit Court, in Michigan, for a ires- as a privilege to which every citizen of the pass to his person committed in Canada. The United States is entitled. The redress of defendant appeared voluntarily. It was ob- wrongs and the means of enforcing contracts jected that the court erred in taking and exer- are of the greatest consequence to the citizens cising jurisdiction. This court said: “The of every State. voluntary appearance of the defendant below Article 4, § 2, of the Constitution of the renders any discussion of the subject of the United States declares that “the citizens of each venue unnecessary. There can be no doubt State shall be entitled to all the privileges and that the locality of the trespass does not of it- immunities of citizens in the several States." self oust the jurisdiction, where the court bas In commenting upon this clause of the Con. lawfully obtained control over the parties. stitution, the Supreme Court of the United But where the parties are not residents of the States in Conner v. Elliott, 59 U. S. 18 How. United States, and the trespass was committed 593 [15 L, ed. 498), said: “We do not deem it abroad, the right of action in our courts can needful to attempt to define the meaning of the only be claimed as a matter of comity, and word 'privileges in this clause of the Constituthey are not compellable to proceed in such tion. It is safer and more in accordance with
the duty of a judicial tribunal to leave its In Roberts v. Dunsmuir, 75 Cal. 203, suit meaning to be determined, in each case, upon was brought by one subject of Great Britain a view of the particular rights asserted and deagainst oibers of that Kingdom, upon a cause nied therein. : . . It is sufficient for this case of action in tort arising in British Columbia. to say that, according to the express words and At the time of bringing the action the plaintiff clear meaning of this clause, no privileges are and one of the defendants resided in the State. secured by it, except those which belong to Two of the defendants were nouresidents, and citizenship.” The right to bring suit in the were not served, but they filed a petition to several courts of this State baving jurisdiction have the cause remanded to the United States is a privilege of every citizen of this State. court, and had procured an extension of time Especially is this true with reference to the to answer after such appearance. The court enforcement of contracts. A citizen of another below dismissed the suit, on the ground of State may come into this, and acquire and en
joy property. He may inherit and transmit | and undesirable for trial by an ordinary jury. property. He may enier into contracts, to the Defendants opposed this motion, and insisted same extent that a citizen of this State can do there was no reason for baving a special jury. so, and in this his rights are guaranteed by the On these facts appearing, the respondent reabove provision of the Constitution; and I fused to bave the case kept in court at all, as think that his right to bring suit in this State, one wbich the Wayne Circuit Court was not in any case where a citizen of the State way, bound to try, and dismissed it. Relators seek is also guaranteed and protected by this pro a mandamus to restore the cause to the court vision of the Constitution. This right does not and calendar. depend upon the fact of the defendant's having Several reasons were discussed on the hearproperty in this State which can be reached by ing before us, depending on very grave quesexecution. There are many cases where, in a tions. In the view I take of the motion, it is suit between citizens of this state, there can be not necessary to consider them all. The jurisno property found out of which to satisfy an diction, in my view, depends entirely on the execution; nevertheless the plaintiff bas a right policy of the statutes of Michigan. Without to plant his suit, litigate his claims and obtain passing on the point directly, I am inclined to judgment. Wilson v. Martin. Wilson Auto- think that, if the suit had been begun in the matic Fire-Alarm Co. 149 Mass. 24.
statutory way, the controversy might be litiThe fourth reason set out by the circuit gated in our courts somewhere against the judge affords no excuse for his declining to parties reached. But the controversy is fairly hear the case. None of the reasons alleged ap- presented, not whether our courts can entertain pear to me to be valid reasons for refusing to proceedings between wonresidents, but whether hear the case, or for striking it from the docket. This suit is brought at such a place and in such No court or judge has a lawful right to deny a way that the Wayne Circuit Court is legally to suitors the privilege of bringing and prose- bound to hear it, and has no option on the subcuting their suits, upon the ground that to en-ject. If not legally bound to do so, we have tertain them will entail expense upon the no right to review its discretion in declining to county. The parties were rightfully before bear it. While we have statutes which to the Circuit Court for the County of Wayne. some extent, at least, raise distinctions arising The cuurt bad full jurisdiction of the parties out of residence, I do not propose to consider and the subject matter, and the circuit judge them all particularly. There are some inciwas in error in holding that the court båd do dents of territorial jurisdiction wbich are unijurisdiction, or that it had a discretion whether versally recognized. Among these is the conto entertain the suit or not.
stitutional and elementary doctrine that, while A mandamus must issue as prayed for, direct- every State may reach property actually withing Hon. George Gartner, Circuit Judge for the in its borders, do personal judgment has the County of Wayne, to reinstate said cause upon least validity unless made against a person the calendar of said court.
actually served with process, or else appearing voluntarily to respond to a suit.
It is equally Morse and Grant, JJ., concurred. well settled that no one, whether partner or in
any other relation of joint interest, can subject Campbell, J., dissenting:
any of his associates io such personal jurisdicRelators are assignees of a firm consisting of tion, either by suit or by arbitration. No one Oliver W. Barnes, of New York City, Joseph can be brought into court personally, without W. Crawford, of Philadelphia, and Francis C. personal service or personal waiver of service. O'Reilly, of Orange, N. J. Relators both live in order, therefore, to get a personal judgment in Pennsylvania. Their assignors had a con- against all these defendants, they must all be tract for building a railroad in three of the up- served or appear; and a judgment which does per peninsula counties, with Walston H. Brown not bind them all personally is not entitled to and Samuel Thomas, of New York City, and faith and credit, under the Constitution of the Columbus R. Cuminings and William B. United States. D'Arcy v. Ketchum, 52 U. S. Howard, of Chicago. None of these defend. 11 How. 165 (13 L. ed. 648). ants have been in Michigan during the trans- It is plain that so long as these defendants actions to be referred to. Relators appear to are outside of Michigan, no court in Michigan have brought a suit of foreign attachment can reach them. Service of Michigan process against the defendants in the upper peninsula, beyond the State is not due process of law, and at Marquette, on which issue was joined. Sub- is void for any jurisdictional purpose. Bischoff Bequently, for reasons of convenience, this suit v. Wethered, 76 U. S. 9 Wall. 812 [19 L. ed. was discontinued, and by mutual understand. 829); McEwan v. Zimmer, 38 Mich. 765. ing they attempted to bring a suit in the Cir- Under our statutes, no service of process is cuit Court for Wayne County, filing a declara- valid outside of the county, upon any defendtion on December 7, 1889. Defendants, by ant, until jurisdiction has been obtained by attorney, put in a plea to the merits on Decem- service on some defendant within it. Turriil ber 16, 1889. No service, or attempt at serv. v. Walker, 4 Mich. 177; Denison v. Smith, 33 ice, was made on any one of the defendants. Mich. 155. Relators early in January, 1890, the case being When a suit has been so far instituted as to on the term calendar for trial as a jury cause, fix the jurisdiction against any defendant, alapplied to the respondent for a struck jury, though the authorities are not entirely clear, setting up the circumstances of the contro- there is usually po obstacle to a waiver of strict versy, and the wide range of inquiry necessary, procedure by voluntary action under appearand the residence of the parties, and the local ance. But I have found no support anywhere ity of the work done and in litigation, and for the doctrine that jurisdiction itself can be claiming that all of the facts made it unsafe given in any way or in any case not provided
for by law; and there is no provision in statute tration cannot cover questions of landed title. or common law which allows jurisdiction to 8 8475. depend on the mere will of perties. The only Provision is also made for confession of judg. provision in our laws which allows litigation ment by virtue of power executed out of court, io be commenced without process applies only but the attorney's power to file a cognovit must to courts of justices of the peace, and its express be found in a special and separate appointment autborization is not without significance, as in writing, outside of the evidence of debt, and creating a new method for the first time. By is strictly limited by its terms. $7662. section 6823 of Howell's Statutes it is provided Parties are also allowed to agree upon a case that suit may be instituted before à justice stating only facts, and submit it to the circuit either by the voluntary appearance of "parties court for judgment on the law, without suit or by process.” It may be remarked that there brought, if the controversy might be made the is no statutory or common-law rule which al ground of an action; but it must be shown by lows the original jurisdiction of any court to affidavit that the controversy is real and in good be called into exercise except by or through faith. How. Stat. & 6469. the party in person. It is not within the power But it was beld in Goodrich v. Detroit, 12 of an atiorney to represent bis client in litiga- Mich. 279, that such a case must leave no intion not already pending. By section 6825, a ference of fact to be drawn by the court, and voluntary suit is to be commenced “at the time that no further facts or evidence can be perwhen the parties shall appear before the justice mitted to be introduced. No other cases of and join issue.” The statute also allows a voluntary jurisdiction bave been provided for, debtor, with the consent of a creditor, lo ap- and vone of these include any litigation of is pear in person before a justice, and confess sues of fact. judgment without process. Section 6816. But When we look at the judiciary laws, we shall this can only be done by a strict compliance find them as precise in their directions as the with the Statute, and a judgment by confession common-law practice, but simplified in details. in any way varying from the statutory method They provide both where and how suits shall is void. Spear v. Carter, 1 Mich. 19; Wilson be begun, and of what the courts shall have v. Daris, 1 Mich. 156; Beach v. Botsford, 1 cognizance. It is declared that the circuit Doug. (Mich.) 199; Clark v. Holmes, Id. 390. courts shall have power, and it shall be their
The same rule applies to stay of execution of duty, to hear and determine all such matters justice's judgment. If given for any more “as may be lawfully brought into said courts." ihan the statutory amount, it is absolutely void. It is further declared that the rules regulating Shadbolt v. Bronson, 1 Mich. 85. It is also their practice “shall govern tbe practice and held in Soper v. Fry, 37 Mich. 236, in accord proceedings in the circuit courts, until altered ance with many other cases, that a partner has by the supreme court, or by their authority." do authority to confess judgment.
$ 6467. There bas been some doubt at common law The venue may be changed on good cause whether an appearance can be entered at all shown, which is a matter of judicial discretion, before the time expires under the process served, and which is in no case allowed to be done by and it seems then to be confined to cases where act of parties. & 6468; Greeley v. Stilson, 27 it is necessary for some purposes for the de- Mich. 154. fendant; as, for example, to discharge appear- The only specified case in which it is done, ance bail. But there is nowhere any recogni. except by the local judge, is where that judge tion of the validity of a proceeding not com- is disqualified; and then it must be done by menced by legal process. It is not profitable regular proceedings before another public offito attempi to surmise all the reasons for legal cer, which must conform to the Statute to be rules, but courts have no right to disregard valid. & 6495; Shannon v. Smith, 31 Mich. them. The government is interested in con- 452. trolling litigation, and in preventing it, except Section 7291 provides two ways for beginunder its own regulations. It involves many ving suits for debt or damages, which are (1) considerations which none but the Legislature by original writ, and (2) by filing and service can pass upon. Due process of law, under of declaration. It has been settled by our dewhich property may be seized and sold, or cisions that the suit is not begun till the declarawhereby the public machinery is used at pub- tion is served. Detroit Free Press Co. v. Bagg lic expense, cannot depend on mere private (Mich.) 44 N. W. Rep. 149 (Jan. Term, 1890). will. Our laws have removed most of the Aud, as already suggested, service cannot merely formal impediments to suing, but they be made on any defendant out of the county have not allowed parties to get into court, ex- until it has been served and proof of service cept through the ways indicated. There is but filed in the county where the suit is pending. one method left to the parties for litigating dis- Denison v. Smith, 33 Mich. 155; Clark v. Lichputed facts in any but the regular way, and tenberg, 33 Mich. 307; Turrill v. Walker, 4 ibat is by arbitraiion. That is allowed to be Mich. 177. done, not in court, but out of court; but it may And it bas been settled that service cannot be submitted by acknowledgment before some be made within the original county on anyone public officer, ånd, if regularly executed, may who is there as a witness, or on any other legal be by the submission entitled to be entered as errand, which exempts him from process while a judgment in a court designated. How. Stat. away from bis residence. Jacobson v. Hosmer, $ 8474.
76 Mich. 234. But, if not executed in strict accordance with By section 7547 it is provided that all transi. law, such award cannot be received by any tory actions shall be tried in the residence of court as the foundation of a judgment (Gib- one or the other of the parties. son v. Burrow8, 41 Mich. 713); and the orbi. It was held in Haywood v. Johnson, 41 Mich. 598, that this is jurisdictional, and requires power of private persons, whether citizens or suits to be commenced there. It is only when not, to impose duties on courts, except by fol. a defendant is not a resident of the State that lowing the legal rules. The public oficers, he may be served wbere he can be found. judicial or otherwise, cannot have duties laid This is a rule of necessity, and results from on them by private action. The return before the doctrine that all persons temporarily in any us indicates the great public inconvenience county become subject to its jurisdiction, and, which would follow the assumption of jurisif they bave no fixed residence, must be treated diction in this case. That would be no answer as commorant wherever they are found. Un- to the application before us, if the legal duty der our statutes it is impossible to hold that exists. But it indicates, perhaps, some of the any circuit court bas jurisdiction without either reasons which bave induced the law-makers to process or service of deciaration. Those are so apportion the jurisdiction of courts as to ihe only methods recognized. Until a suit is make the burdens fall where they ought to fall, pending, no attorney bas official authority to and to prevent parties from choosing their own appear for a client, and when a suit is actually forum at their own pleasure. I do not think pending no party can answer for any other the suit is legally before the Wayne Circuit party. No court can be compelled to assume Court, and I think the mandamus should be the burden or authority of jurisdiction, unless denied. in cases authorized by law. It is not in the
VERMONT SUPREME COURT.
H. Henry POWERS et al., Exrs. of Alden | 2. A devise to testator's wife for her E. Jeudevine, Deceased, Appts.,
sole use, control and enjoyment during
her life, to use and dispose of it as she may deMalvina M. JEUDEVINE et al.
gire, and to give the residue by will to such persons as she may desire, but giving what is left to
certain other parties in case she leaves no will, is (......Vt.......)
a gift of the fee to the wife, and the remainder
over is void. 1. A remainder over in a will is void for repugnancy where the estate has been given
(Ro88, J., dissents.) generally or indefinitely with an absolute power 3. Where one article of a will provided of disposition.
for a certain fund to aid deserving col
NOTE.- Estatc in fee conveyed by will. their heirs after them, vests the fee in the devisees. In wills, the rule that words of inheritance are Hagemann v. Hagemann (III.) 21 N. E. Rep. 814. Decessary to convey a fee is entirely subordinate to Conditions against alienation are strictly con. the testator's intention. Lambert v. Paine, 7 U.S. strued. Warfield v. English, 11 Ky. L. Rep. 203. 3 Cranch, 97 (2 L. ed. 377); Melick v. Pidcock, 13 Cent. Rep. 300, 44 N. J. Eg. 525.
Not cut down hy subsequent terms. A devise of land to a wife, “to have and to hold Where an estate is given in one part of the will for her benefit and support," is not a condition or in clear and decisive terms, such estate cannot be limitation on her estate therein, but merely a state- taken away or cut down by subsequent words that ment of testator's reason for the gift; and the wife are not as clear and decisive as the words of the takes the fee, under the New York statute provid- clause giving the estate. Re Surrogate of Cayuga ing that words of inheritance are not necessary, Co. 46 Hun, 657; Hockstedler v. Hockstedler, 7 unless there is an intent, expressed or to be neces- West. Rep. 75, 108 Ind. 506: Goudie v. Johnston, 7 barily implied, to grant a less estate. Crain v. West. Rep. 589, 109 Ind. 4:27; Bailey v. Sanger, 6 West. Wright, 114 N. Y. 307.
Rep. 556, 108 Ind. 261; Allen v. Craft, 7 West. Rep. Under the Kentucky statute providing that an 510, 109 Ind. 476; Byrnes v. Stillwell, 5 Cent. Rep. 406, estate shall be deemed a fee simple, although no 103 N. Y. 453. words of inheritance are used, unless a different Such words, being repugnant to the gift originalpurpose is imposed or necessarily implied, a will di- ly made, are treated as of no effect. Authorities recting the sale of certain realty for the interest of cited. Sherburne v. Sischo, 3 New Eng. Rep. 432, testator's wife, the proceeds to be invested in her 143 Mass. 439. name and for her use, prohibiting her from loaning Superadded words which merely describe or speci. them, but allowing her the interest as she may re- fy the incidents of the estate created by such a word quire, and the rents as she should desire, if the land of limitation as the word "heirs" do not cut down was not sold, and making no provision as to re- the interest of devisee. Authorities cited. Allen mainder in the property,--gives her a fee simple. v. Craft, 7 West. Rep. 518, 109 Ind. 479. Robbins v. Robbins (Ky.) 9 S. W. Rep. 254.
A limitation to a designated class of heirs does When a testator devises land without legal words not cut down the estate of the first taker to less of limitation, but adds that the devisee "may sell or than a fee. Ibid. do therewith as he pleases,” he is presumed to have Where quantity of estate of taker is expressly deIntended to give a fee. King v. Ackerman, 67 U. fined to be for life, and words adapted to creation 8.2 Black, 408 (17 L. ed. 29-).
of a power of disposal, without restriction as to Because the testator used the phrase "to do and mode of execution, are added, the superadded dispose of as he may think proper," as regards the words will be construed to be the mere gift of a farm, and, in devise of the homestead, has omitted power of disposition. Lienau v. Summerfield, 3 it, such omission as to the latter is not equivalent Cent. Rep. 506, 41 N. J. Eq. 581. to an express limitation of it to the life of the dev. The common-law rule hat a provision in the will isee. Ibid.
disposing of real property to A in such terms as to A devise providing that the devisees shall not sell convey a fee and with power to dispose of it in his or mortgage the land, but that the same shall go to lifetime, was inconsistent with a further provision 7 L. R. A.
lege students, and the next clause provided relating to my home premises. The foregoing that the rest of the estate should be held as a fund grant and devise to my wife is for her sole use, to aid students in the same manner and with the control and enjoymeni during her life; trusting same restrictions as prescribed" in the preceding and expecting that she will use and dispose of article, “and at any time after five years” the ex- the whole thereof as she may desire, and that ecutors might, in their discretion, appropriate she will give the residue, if any remains at ber "whatever may remain" to certaio towns, the interest to be used for school purposes in the educa- death, by her will to such persons and for such tion of all classes, the fund referred to in the latter purposes as she may desire. But inasmuch as article is not to be kept for accumulation during I desire that such residue at her decease sball
the five years but used for the purposes specified. in po event pass to her legal heirs if undisposed 4. Taxable costs of all parties in a suit for the of by her, I give, grant and devige one half of construction of a will may be ordered to be paid the same to the University of Vermont and out of the funds of the estate before distribution. State Agricultural College in the same manner
as named in article number six of tbis will, and (November 14, 1889.)
the other balf to be held and expended by said
executors for the purposes named in article chancery of the Caledonia County Court appropriated by my wife before her decease. dismissing a bill to obtain construction of cer- *Article Siaih. To perpetuate the memory tain portions of the will of Alden E. Jeudevine, of my late beloved son, Cornelius Alden Jeudedeceased. Reversed.
vine, who died without receiving that liberal The bill was filed by Jeudevine's executors, education which I intended he should bave, I and his widow, Malvina M. Jeudevine, the desire to create a fund to be known as the University of Vermont and State Agricultural Cornelius A. Jeudevine memorial fund, for the College and the Town of Concord were made purpose of aiding poor and deserving young defendants.
men in Vermont in obtaining the advantages The portions of the will necessary to an un- of a liberal education. To this end I give, derstanding of the case are as follows:
grant and devise one half of the remaining balt “Article Fifth. I grant and devise to my be of the residue of my estate, both real and perloved wife, Malvina M. Jeudevine, one half of sonal, meaning one half of the residue left after the residue of my estate, both real and personal, discharging the gifts specified in articles 1, 2, and it is my will that the proceeds of any pol. 3, 4 and 5, and subject to the conditions reicy of insurance on my life which my wife may specting my home place, named in article 8 of receive shall be computed as part of the share this will, to the University of Vermont and State given her by this will and subject to the condi- Agricultural College, located in Burlington, tions specified in article number 8 of this will, Vermont, upon the trusts and in the manner
that in case A did not dispose of it during his life- | position thereof. McIntyre v. McIntyre, 123 Pa. time, then, and in that case, the estate should go to 329. B, and that the limitation over was for that reason If one seised in fee grants a life estate with revoid, was altered by the adoption of the Revised mainder to his heirs, the limitation to his heirs is Statutes. The possibility of enjoying the estate, on simply void, and he will have a perfect legal reverthe failure of the precedent owner to dispose of it, sion. Miller v. Fleming (D. C.) 17 Wash. L. Rep. 102. is "an expectant estate" within the meaning of that A direction to a trustee to convey to grantor's term, as used in $ 33, 1 Rev. Stat. 725, 3 Rev. Stat. 7th beirs to whom he has given a remainder will not ed. 2178. Greyston v. Clark, 41 Hun, 125.
change the rule which makes such a remainder A fee will not be cut down by ambiguous words. operate merely as a reversion to himself. Ibid. Sherburne v. Sischo, supra.
Adding the words, “as tenants in common, and By the following clause, “The interest of one not as joint tenants," to a clause in which a grantor fourth aforesaid of my daughter H., I will shall be directs that the remainder in fee shall be given to 80 secured to her that she shall enjoy it during her his heirs, does not prevent the operation of the rule natural life, and after her decease, then to her right which makes such a gift operate as a reversion to heirs forever; and in like manner do I wish the one himself. Ibid. fourth interest secured to my grandchildren J.and Where testator by his will gave and devised all E.;” and clothing his executors with power to se- his estate, real and personal, to his wife, “the same cure his daughter and grandchildren in their re- to be held and enjoyed by her fully and absolutely spective interests, with power to manage his estate and without restriction of any kind. with full power for the best interest of all concerned, until a divisto alienate, convert or dispose of the same in such ion is made, and that they may sell and reinvest manner as she may deem best;" and provided sub. what they deem proper,-it is not clear that the in- sequently, in the same instrument, that upon the tention of the testator was to limit or cut down the death of his wife all his estate, "or so much of it as fee, which he had already given by a preceding remains the property of my wife on her death," clause, to a mere life estate; and in the absence of should go to his children,-the devise to the wife is such clear intention, the clause should not be given of a fee simple, and the devise over to the children that effect. Wicker v. Ray, 6 West. Rep. 495, 118 Ill. is void. Also, without regard to the wife's estate, 472
the will, expressly and by implication, gives her a
power to sell testator's lands. McClellan v. Larch. Instances; late decisions.
ar, 45 N. J. Eq. 17. A devise to a daughter of certain land, with the A devise to one person, and, in case of his death, further clause that "she will not have power to sell, to another, gives the first named an absolute estate but may leave the same to her children,” gives her if he survives the testator. Johnes v. Beers, 57 an estate in fee, the attempted restraint upon alien- Conn. 295. ation in the first part of the clause quoted being A gift to a daughter and her issue of a sum of void, and the remaining clause being merely an ex- money, the interest to be added to the principal pression of permission to leave the land to her child while her present husband lives, but to be paid to dren, but without a prohibition of any other dis- her annually in case she becomes a widow, and it