Mandlebaum v. McDonell. power of sale, but that the devise and the interest intended to pass by it were to be absolute and unconditional in this respect, whether the restriction should be observed or violated. And as to the agreement to these restrictions, which the devisees were required to sign, supposing it to have been signed, who were the parties whose interests were to be affected by it? Who had a right to insist upon its performance, or to any remedy for its breach? Clearly none but the devisees themselves, who might, therefore, mutually release, abandon and put an end to it, at least with the unanimous consent of all, which they did by their conveyances, if these were in other respects valid. It was, in fact, very frankly admitted by the counsel for the defendants that the interest given by the will to these devisees was a present vested interest, though it was insisted that it was not properly an interest in the land, but the proceeds; that these proceeds could only be obtained through the execution by the executors of the power of sale. But when such a bare power of sale is given to the executors merely to sell the lands for the purpose of paying over the proceeds to devisees, whose right under the will to such proceeds is an absolute and vested right, we understand the law to be settled, not only that all such devisees may collectively, before the power of sale is executed, elect to take the land, instead of the proceeds, according to their respective interests in the latter and thus prevent a sale, but that each of them may ordinarily so elect as to his own share. See Reed v. Underhill, 12 Barb. 113; Kirkman v. Miles, 13 Ves. 338; Craig v. Leslie, 3 Wheat. 563; Tazewell v. Smith's Adm'rs, 1 Rand. (Va.) 313; Burr v. Sim, 1 Whart. 252; Broome v. Curry's Adm'rs, 19 Ala. 805; Quin v. Skinner, 49 Barb. 132; Story's Eq. Jur., § 793. This is the effect which the law itself gives to such a devise - which gives a vested interest in the whole proceeds to the devisees whether the will provides for such an election or not, and even though it should expressly forbid the election. Whether it would be competent to make a devise upon the express condition that the proceeds alone should be received or the devise to be forfeited, or the property or proceeds go over to another in case of a refusal to accept the proceeds, or of claiming the land, we need not consider, as this devise is not made dependent upon any such condition. And though the language makes it in form a devise of the proceeds instead of the land, yet so far from providing in reference to this Mandlebaum v. McDonell. devise or that of other property in Detroit, against the election (as it may be said the testator has undertaken to do in reference to the devise of other portions of property which the executors might sell at any time), the last provision of the will in reference to the property in Detroit seems to me to recognize the right of the devisees to elect to hold the land instead of the proceeds, and dispense with a sale, as soon as the time should arrive, when, by the will, the executors were to be authorized to sell, viz.: as appears in a former provision in reference to this particular devise, upon Breckenridge reaching the age of twenty-five and the death of the testator's widow, etc.; thus recognizing the right to elect at that time, but undertaking to restrict the right until that time. We must therefore hold that the devise to the widow was of a life estate (should she remain unmarried), and that to the other devisees it was a devise of the fee subject to the life estate; in other words, the remainder in fee. And though they might at their election permit or prevent a sale by the executors for their benefit and on their account, it was a present vested remainder in fee, or the entire estate in fee, subject to the life estate of the widow. Now, as to the restriction against alienation, while there is, as to the particular lands here in question, a direct and express restriction upon the executors not to sell it until Breckenridge should reach the age of twenty-five, or during the life of the widow if she remained unmarried, the restriction upon the devisees not to sell this property is not so direct and express. It is clear, however, and admitted, that the result of all the provisions taken together is a sufficiently clear expression of intention to forbid and restrict the devisees from selling the property or its proceeds, in other words, the estate devised so far as these lands are in question, until the period last above mentioned. The estate devised being an absolute vested estate in fee, the only remaining question is, whether such a restriction of the right of the devisees to sell such an estate is valid. This is the main question in the case and was very properly so treated and discussed by the counsel on both sides. And before proceeding to determine this question, it may, for the sake of clearness, and to avoid the confusion which might arise from confounding questions which might otherwise seem analogous, be as important to point out what the question does not involve, as what it does. It does not, then, involve the question whether a restraint Mandlebaum v. McDonell. upon the sale of this property for an equal length of time might not have been rendered legally effective by the conveyance of the legal title to trustees, in trust for the benefit of these devisees, according to instructions as to time of sale, which might have been inserted in the will; in which case the validity of the restrictions as to time would depend mainly upon the question whether the period exceeded that allowed by the rule against perpetuities. Nor does the question involve an inquiry how far a somewhat similar object might have been accomplished by making this estate in fee in these devisces defeasible, upon the condition of their executing, before a certain period, a conveyance to certain persons, or to any other than certain persons, or to any party whatever, or of their becoming bankrupt, or allowing a sale upon execution, or permitting a judgment to become a lien, or upon condition of using the property in some particular way, the property being limited over to another, or to be forfeited and revert on breach of the condition. In these cases there would be some party besides these devisees interested in the observance of the condition, with a right to take advantage of the breach, viz.: the heirs of the devisor, or the person to whom the property was limited over. It is quite possible that many restrictions or qualifications upon the right of devisees or grantees may be made effectual by making the estate itself dependent upon such condition, to which it could not be subjected if the estate given is absolute, as it is admitted to be here. Nor does the fact that, in the case of an executory devise, or in that of a contingent remainder, or any other interest not vested, a restriction upon the power of the devisees to sell before it shall become vested in interest would be good, in any manner tend to sustain such a restriction upon a vested estate in fee. This devise is not made to trustees for the benefit of the devisces, but directly to the devisees themselves. The estate devised is not a conditional one to be forfeited or to revert to the heirs of the testator, or to go over to others on a breach of the restrictions, nor one which is to vest at some future day, or upon the happening of some future event, but an absolute vested remainder or estate in fee, and though not to come into actual enjoyment until the death of the widow, to whom a life estate is given, it is just as much vested and the devisees have just as much right to sell the interest or estate devised as if there had been no intervening estate for life. And the question of the validity of the restriction is, in my view, Mandlebaum v. McDonell. precisely the same, in all its legal aspects, as if no life estate had been given to the widow, but the whole had been given in fee directly to these devisees, as an absolute estate in fee and in possession, with the same provisions restricting the power of sale. My first difficulty in holding the devisees or their estate bound by the restriction is this a legal obligation always involves the idea, not only of a party upon whom it rests, but of another party in whose favor, or for whose interest or benefit it is imposed, and who, therefore, has the right to call for its enforcement. To give vitality and force to the current of a legal obligation, it requires, like the galvanic current, a battery with two opposite poles, between which the current is to pass and the force to operate. A circuit formed upon only one remains quiescent. The force of gravitation itself would cease to act, if not to exist, without at least two bodies (or particles) between which it could be exerted. And it is not easy to see how this restriction can impose any legal obligation upon the devisees or limit their power over the estate, when the observance or violation of the restriction can neither promote nor prejudice any interest but their own; and it has not been claimed that any other interest could be affected here. Let us test this a little further by a few analytical questions. In whose behalf, for whose interest, is the restriction imposed? Is it not solely for that of the devisees themselves? And who has a right to enforce it or complain of its breach? What species of legal tie or obligation is that which attaches only at one end, and, ending where it begins, operates only in behalf of the very party upon whom, or on whose property it is imposed, making him at the same time the obligor and obligee? May not a party in whose behalf an obligation exists forego or release its performance? If not, then at whose instance will the court compel him to insist upon its performance? It must be admitted that such a restriction, in such a case, is not naturally calculated to lead to litigation, since, if the party in whose favor the obligation exists insists upon its performance, it would in all probability be performed; and if the party upon whom it rests should refuse to obey the restriction, the party in whose favor it was imposed would not be likely to insist upon it, both these parties being one and the same. But does it not seem to result that he may do very much as he pleases about performing such an obligation? I confess my inability to see how the restriction is any more binding upon the devisees or their estate than it Mandlebaum v. McDonell. would have been upon the heirs or their estate, had the testator disposed by the will only of the life estate to the wife, and left the remainder to descend to the heirs, and undertaken to impose the same restrictions upon them or upon the estate in their hands. In either case the whole estate (subject to the life interest) is equally centered in the devisees, in one case, and in the heirs in the other, and no interest but their own to be affected by its observance or violation. In neither case, as it seems to me, can the restriction be regarded as any thing more than the expression of a desire, or the mere advice of the testator, which, though the devisces might choose more or less to respect, they had a clear legal right to disregard. To make it obligatory would be to sanction a testamentary guardianship over parties not subject to that species of control. These considerations seem to me sufficient to dispose of this case, and to show that, as in Hall v. Tufts, 18 Pick. 459, and Blackstone Bank v. Davis, 21 id. 42, the intent expressed is contrary to law, or at least one which courts cannot enforce. See, also, Brandon v. Robinson, 18 Ves. 429; Graves v. Dolphin, 1 Sim. 66; Rochford v. Hackman, 9 Hare, 479; Doebler's Appeal, 64 Penn. St. 9; Kepple's Appeal, 53 id. 211; Craig v. Wells, 11 N. Y. 315. But lest this may be thought too narrow a ground, and since the question in all its aspects, with the authorities upon it, has been argued and fully considered, at the risk of being charged with entering upon a discussion which does not properly belong to the case, I proceed to inquire whether the result will be different if this restriction is to be placed upon the same grounds as if it had been made a condition the non-observance of which had been declared by the will to forfeit or defeat the estate. It is true the maxim of law, "modus et conventio vincunt legem,' is one of very extensive application in matters of contract and deeds inter partes; but is much more limited in its application to real estate than to personal property and rights; and even as to the latter, it is very materially limited by two other maxims equally as well established: "Conventio privatorum non potest publico juri derogare," and "fortior et potentior est dispositio legis quam hominis." Thus, among many other illustrations which might be given, a man cannot by contract render his will irrevocable during his life, for it is of the very essence of a will to be revocable until death; nor by any instrument which he can make can a man give |