Locke et al. v. Barbour, Trustee.

Where the power given to the trustee embraces the power of disposition by sale and conveyance of the land, the trustee takes the fee as necessary to enable him to sell and convey the fee. 1 Perry Trusts, sec. 315.

The trustee in such cases holds the legal estate, "so long as it shall be necessary, and it will then be executed in the cestui que trust, upon the principle that trustees only take so much of the legal estate as the purposes of the trust require." 2 Washburn Real Prop. 469.

As to the question of perpetuities, see Huxford v. Milligan, 50 Ind. 542; Hill Trustees, star pp. 333, 334.

Other questions upon the construction may in future time arise upon the construction of the will in this case, but they are not necessarily presented in this case. It sufficiently appears that said Sarah Elizabeth was not possessed of the legal title, and hence had no power to convey it. Nor could she convey her interest in the rents and profits. 1 R. S. 1876, p. 915.

The judgment is affirmed, with costs.

ON PETITION FOR A REHEARING.

PERKINS, J.-An elaborate petition for a rehearing has been filed. We have carefully considered it.

The case is this:

Richard F. Lytle, Sr., devised certain lands to Nathan L. Lytle and Richard F. Lytle, Jr., " to have and to hold the same for the sole use, behoof and benefit of my daughter, Sarah Elizabeth Potter, and to her heirs begotten of her body; and I further direct that the said trustees do pay over to the said Sarah, or to her heirs begotten as aforesaid, the full rents and profits thereof, annually, for her or their exclusive support and maintenance, and to be receipted for by the said Sarah, if living."

She still lives. Said Sarah sold the land, making a deed in fee-simple.

Locke et al. v. Barbour, Trustee.

Section 13 of the act of this State concerning trusts and powers enacts, 1 R. S. 1876, p. 916, that "A conveyance or devise of lands to a trustee whose title is nominal only, and who has no power of disposition or management of such lands, is void as to the trustee, and shall be deemed a direct conveyance or devise to the beneficiary."

In this case, the trustees had the power of management of the estate, and hence the devise was not direct to the beneficiary. An active trust was vested, to be administered by the trustees. They necessarily took the legal title.

It is claimed that the devise was void as against the law of perpetuities. If this is so (which we do not decide) as to the limitations over, it was valid as to the life-estate of the first beneficiary, who is still in life.

In Proprietors, etc., v. Grant, 3 Gray, 142, it is said:

"The remaining inquiry is as to the effect of the invalidity of the devise over, on account of its remoteness, upon the preceding gift in fee to the deacons and their successors forever. Upon this point we understand the rule to be, that if a limitation over is void by reason of its remoteness, it places all prior gifts in the same situation as if the devise over had been wholly omitted. Therefore, a gift of the fee or the entire interest, subject to an executory limitation which is too remote, takes effect as if it had been originally limited free from any devesting gift. The general principle applicable to such cases is, that when a subsequent condition or limitation is void, by reason of its being impossible, repugnant or contrary to law, the estate becomes vested in the first taker, discharged of the condition or limitation over, according to the terms in which it was granted or devised; if for life, then it takes effect as a life-estate; if in fee, then as a fee-simple absolute. 1 Jarman on Wills, 200, 783; Lewis on Perp. 657; 2 Bl. Com. 156; 4 Kent Com. 130; Co. Lit. 206 a, 206 b, 223 a."

And where the devise is of an equitable, a trust, estate,

Keiwert et al. v. Meyer.

the same rule applies. Whether the limitations over in this case are void or valid, whatever estate vests in Mrs. Potter during her life is simply a right to receive the rents and profits, and hence falls within the following, being the 4th section of the act concerning trusts and powers, 1 R. S. 1876, p. 915:

"No person beneficially interested in a trust for the receipt of the rents and profits of land, can dispose of such interest, unless the right to make disposition thereof is conferred by the instrument creating such trust; but the interest of every person for whose benefit a trust for the payment of a sum in gross is created, is assignable."

This disabled Sarah Elizabeth Potter, the first beneficiary, to sell even her interest in the rents, etc., to be paid to her from time to time for her support.

The petition for a rehearing is overruled.

Original opinion filed at May term, 1878.

Opinion on petition for a rehearing filed at November term, 1878.

KEIWERT ET AL. v. MEYER.

CONTRACT MADE IN ANOTHER STATE.--Sale of Intoxicating Liquor in Violation of a Statute of Such State.—Answer.—In an action on account, in this State, for intoxicating liquors sold and delivered by the plaintiff, a resident of Wisconsin, to the defendant, a resident of Iowa, pursuant to a verbal order for the liquors, given by the latter to the former, in Iowa, the defendant answered, alleging that such sale was made in violation of a statute of Iowa, prohibiting the sale of intoxicating liquors, a copy of which statute was made part of the answer.

Held, on demurrer, that the answer is sufficient.

SAME.-Reply. Statute of Frauds of Foreign State.-Delivery to Common Carrier.-Acceptance.-A reply that such sale was also in violation of the statute of frauds of Iowa, because not in writing, but that the plaintiff had avoided the effect of both of such statutes by delivering the goods

Keiwert et al. v. Meyer.

in Wisconsin, for transportation, to a railroad company designated by the parties at the time such contract was made, is insufficient on de

murrer.

From the Dearborn Circuit Court.

O. B. Liddell, for appellants.

J. Schwartz, for appellee.

PERKINS, J.-Suit by the appellants against the appellee, to recover for goods sold and delivered.

The appellee (defendant below) answered in two paragraphs, substantially alike, that the goods sold and delivered were intoxicating liquors; that they were sold in the town of Connover, in the State of Iowa; that there was, before and at the time of said sale, a law in Iowa prohibiting the sale of intoxicating liquors in said State, setting forth in his answer a copy of the law and negativing the fact that they were sold for medical, etc., purposes.

A copy of the law, as we have said, was made part of the answer. It forbade the manufacture or sale of any intoxicating liquors under a penalty; subjected the property to forfeiture, etc., except that they might be sold for mechanical, medicinal, etc., purposes.

The allegations of the answer brought the sale in question within the statute, and rendered the answer good. Reply:

1st. In general denial.

2d. "And for further reply to the first and second paragraphs of defendant's answer the plaintiffs say that they (plaintiffs) live in Milwaukee, in the State of Wisconsin, and that said Emil Keiwert, one of the plaintiffs, on the

day of May, 1866, visited the town of Connover, in the State of Iowa, and took a verbal order for a bill of goods from the said defendant, which is the same as that mentioned in plaintiffs' complaint, to be sent to defendant, when said plaintiff returned to Milwaukee; and plaintiff's say that afterward, on the day of - 1866, they

Keiwert et al. v. Meyer.

(plaintiffs) shipped by railway, from Milwaukee, Wisconsin, to defendant, the goods mentioned in their bill of particulars, pursuant to said order made in Connover, Iowa; and plaintiffs say that defendant received said merchandise at Connover, Iowa, and accepted the same, ratifying said delivery at Milwaukee, Wisconsin. But plaintiff's say, that, at the date of said order or direction given by the defendant to Emil Keiwert in the State of Iowa, there was in force a statute for the prevention of frauds and perjuries, which contains, among other provisions, the following, viz.: (Said law, or so much thereof, as is pertinent, is set out in an exhibit marked "A," filed herewith.) And plaintiff's say, that, by virtue of said statutes the said sale in the State of Iowa was an executory contract, void and completed only by delivery to said railway company as common carriers in the State of Wisconsin. And plaintiffs say there was no memorandum or writing, signed by plaintiff's or their au thorized agent in the State of Iowa, of said bargain or sale, and no part of the purchase-money paid or part of the property delivered in said State of Iowa at the time of meeting in said State of Iowa by plaintiffs and defendant.

"And for further reply to first and second paragraphs of defendant's answer, plaintiffs say, that, on the 10th day of May, 1876, one of the plaintiffs, Emil Keiwert, in the State of Iowa, took an order from defendant to send him, defendant, from Milwaukee, Wisconsin, by the Milwaukee and Prairie Du Chien Railroad Company, the goods mentioned in plaintiffs' complaint, and that, in pursuance of said order of defendant, plaintiffs delivered said stock of merchandise to said railway company, which delivery was ratified by defendant by acceptance of said goods from said railway company in the State of Wisconsin; and plaintiffs further say, that, at said date, there was in force, in said State of Iowa, to prevent frauds and perjuries, a statute wh ch, among others, contained the following provisions,