Samuel Currier vs. Joseph Earl, 13 Me. 216

The opinion of the Court was drawn up by Weston C. J. There can be no doubt but the tenant, under the will of Daniel Wing, was entitled to a vested interest in the premises in controversy, upon a condition subsequent. And although the devise is not in express terms to him and his heirs, yet it was by construction of law, the devise of a fee. First, because it operated upon all his real property, not previously devised ; secondly, because it was attended with such a charge upon the devisee, that less than a fee might not prove a beneficial interest. The tenant then had an estate in fee.

A right and power of alienation is one of its most valuable incidents. An express condition, that tenant in fee shall not alien, is void in law. Lit. sec. 360. Doe ex dem. Mitchinson v. Carter, 8 T. R. 57. The house, which by the will was subject to the control of the widow' of the testator, forms no part of the demanded premises. The support and maintenance of the widow and the two daughters of the testator, was charged upon the tenant. A provision of this sort lias been adjudged to be a personal legacy to the objects of the testator’s bounty. Farwell v. Jacobs, 4 Mass. R. 634; Wood, Judge v.

Barstow, 10 Pick. 368; Crocker v. Crocker, 11 Pick. 252. If the tenant, as residuary legatee, gave bond to pay the debts and legacies, that affords security to the other legatees. If not, the widow, if dissatisfied, may take to herselfj by the express provisions of the will, the use and occupation of a third part of the estate. And the daughters, if their maintenance is withheld, as heirs at law, may enter for condition broken. Their security is ample to enforce performance of the bequest to them. The tenant may provide for the support of the widow and daughters, without occupying the estate devised.

His tenure could not be regarded such, as to confine him to that position, for their lives and the life of the survivor of them, if they remained unmarried ; and thus to cut him off from all hope of bettering his condition, by a change of residence, or by seeking other business or employment. No such condition is expressly imposed ; nor does it necessarily result from the duties prescribed to him. This case differs from that of Clinton v. Fly, cited for the tenant. That was in relation to a personal trust, resting in contract, which from its peculiar circumstances, the Court held not assignable to strangers.

Here the trust assumed by the tenant, as executor, is not assigned. It is still his personal duty to furnish the maintenance, provided by the testator for his widow and daughters. He has only conveyed that, which was given him as the consideration for the performance of this duty. And we are of opinion, that the tenant had, as incident to his estate, the privilege of alienation, which be undertook to exercise. It is true the objection to this power is interposed by himself. He now deems it for his interest to contend, that he never had any such privilege.

He first sells his land, and receives his pay for it, and then invokes the aid of the Court to permit him to retain it. We cannot but regard the claim as little consistent with morals, as with the principles of law. It does not appear that any question as to the demandant’s title, was raised at the trial; but as it has been presented in argument, we have examined the right of the tenant to convey. But if he conveyed without right, he wouJd have been estopped by his deed to deny the demandant’s title. After that deed, he occupied as tenant at will to the demandant.

One point taken is, that the action cannot be maintained, because he was not tenant of the freehold. We cannot however entertain a doubt, that his continuing to hold adversely to the demandant, resisting his claim, and setting him at defiance, was a disseisin at his election. And this is a sufficient answer to that objection. It is lastly contended, that the demandant could not terminate the tenancy and recover the land, without giving the tenant seasonable notice to quit, and it is denied that such notice was given.

To this it may well be replied, that the same acts, which made him a disseisor at election, terminated the tenancy on his part. Campbell v. Procter, 6 Greenl. 12. But we have already decided, in the case of Davis et als. v. Thompson, ante p. 209, that where a tenancy at will is determined by the lessor, the tenant is entitled only to the emblements, and to a reasonable time for the removal of his family and property, with free ingress, egress and regress, for the enjoyment of these rights. In this case, there were no emblements.

If the tenancy is to be considered as determined by the demandant, and not by the tenant, it appears that notice to quit was given by the demandant on the sixth of June, and the writ, it is agreed, was dated an the twenty-first of July following. That notice must be regarded as amply sufficient to enable the tenant to enjoy all his rights, and to justify the action, when it was instituted. Judgment on the verdict.