#### LOUIS H. McDANIEL *against*JAMES McDANIEL AND OTHERS.

Where land was devised to A and his heirs, with a restriction that if he died without leaving children, then to B and 0; but if he wished to sell he should give them the preference, and provided a mode for ascertaining the value, it was *Held*that a power of alienation was conferred on A, and that B and 0 should be put to their election, under the direction of the Court, either to take the land in the manner prescribed, or to decline it.

Cause removed from the Court of Equity of Jones county.

James McDaniel made his will in 1853, and shortly thereafter died. By the fifth clause thereof, he devised and bequeathed as follows: “I give and bequeath to my son, Louis Henry McDaniel, the lands whereon he now lives, being a part of the Howard tract, containing all that part of the said land tliat lies on the left hand side of the public road leading from Trenton to White Oak, on condition that he release all claim on my other heirs, for the sum of one thousand dollars, (the same having been paid by the said Louis IT. McDaniel in part payment of the said Howard lands.”) He then bequeaths an interest in certain mills, <fcc., and certain slaves, and other personal property to Louis, and adds, “ Provided, always, that should the said Louis H. McDaniel die, leaving no lawful heir or issue surviving him, the said estate of lands and mills hereby -devised, to be equally divided, as near as possible, between my surviving sons, share and share alike. And it is my will and desire that should my son, Louis IT. McDaniel, desire to sell the land and mills hereby devised, that my five or surviving sons have the offer of the purchase, and should they not agree with regard to the purchase at a fair value, then, and in that case, they choose three disinterested persons, unconnected with the parties, either by consanguinity or affinity, and have said lands and mills valued, and that my five or surviving sons shall purchase said lands and mills at the valuation so made, and pay for the same in yearly instalments, should they be disposed to do so.”

The plaintiff, Louis H. McDaniel, alleges that he took pos*352session of the property given him under the above recited clause, having released to his said brothers, the defendants, bis claim to be repaid from his father’s estate, the said,stun of one thousand dollars; that being desirous of mating sale of the land above mentioned, he has repeatedly offered the same to his brothers, the defendants, and that one of them, the defendant, William, and he have agreed on a price, $14,000 as the value of the said lands, and he is willing to take the said lands at that sum, provided his other brothers would relinquish all claim to come in for tlio said land, in case the defendant-should die without leaving children ; but that they refused to make such relinquishment; that he then offered it to them, singly or collectively, for $12,000, the sum which another had offered him, but they refused to buy it, and insist that by the terms of their father’s will, any sale he may make, will be defeated in case plaintiff shall die without leaving a child or children. In consequence of the defendants’ refusing to buy the said land, and in consequence' of this unreasonable pretension, as he deems it, he alleges that he is unable to sell the land at all, and he prays the Court to put a construction on the said will of James McDaniel; and if the Court shall be of opinion that plaintiff Las a power of alienation that the defendants may be compelled to make an election, either to take the land in the manner provided by the said will, or that they may formally decline to do so, and permit the plaintiff to sell to other persons, and that the Court will make such declaration of his rights under the said will, and that the same may be assured to him by a decree of this Court.

The defendants answered, professing» willingness to obtain a construction of the will of their father, but insisting that the plaintiff has no right to sell the land free from the contingency of his dying without children.

Cause set for hearing on bill, answer and exhibit, and transmitted.

*J. BL. Bryan,*for the plaintiff.

*J. W.*Bryan, for the defendant.

*353Peaeson, C. J.

The land, which is the subject of controversy, is devised to Louis H. McDaniel and *Ms*heirs, and if there was no other restriction than that contained in the provision “should he desire to sell, my five or surviving sons shall have the offer of the purchase at a price agreed on, or to be fixed by a reference to three persons, chosen by the parties, at which price they may have the land, should they be disposed to take it,” the case would fall under the decision in *Newland*v. *Newland,*1 Jones’ Rep. 463, because, as by the devise he takes an estate *m fee simple,*to which a general power of disposition is. incident, the attempt to restrain the right of disposition, would be inconsistent with the nature of the eslate, and, therefore, have no legal effect. But there is this further restriction, “should he die leaving no lawful heir or issue surviving him, the land shall be equally divided between 1113’ surviving sous,” which operates as a condition to cut down his estate. So, lie does not take a fee simple absolute, but a fee determinable upon his death without a child or other issue him surviving. To this determinable fee a power of disposition is not incident. On the contrary, it is settled that the taker of the first fee has not the power, by any mode of conveyance, to alien the estate so as to defeat the estate of those entitled under the limitation over; *Craig*v. Myers, Busb. 169. In order, therefore, that he should have the right to sell, it was necessary for the devisor to confer it on him, and, in tfoing so, as a matter of course, he had a right to impose restrictions, so that if the devisee died without selling the laud, it would pass under the limitation over, hut if lie complied with the terms imposed, he might alien the land in fee simple. This limitation over, which cuts down the first estate, and the restricted power of sale, brings our case within the decision in *Hall*v. *Robinson,*3 Jones’ Eq. 349. If one devises in fee simple, he cannot make a limitation over by way of executory devise without cutting down the first fee, in order to make room for the second; for, after giving a fee simple absolutely, there is no part of the estate or interest left in him. So, if one devises without an express limitation of the estate, *354and gives a general power to dispose of the land, lie cannot make a limitation over to a third person in case the first taker dies without disposing of the land, or of such part as be may not dispose of, for the general power confers the absolute ownership, and leaves nothing in the devisor. But, if one devises to A and his heirs, the estate of A to be void in the event of his dying without a child living at his death, the devisor still has some interest which he may give to a third person, or by reason of which he may confer on A a power of disposition with such restrictions as he may see proper to impose, and there is no principle of law which prevents him from doing both, as is done in our case. The limitation over, and the restriction upon the power of selling, show that it was not the intention to give Louis H. McDaniel a fee simple absolute.— A fee, conditional at common law, furnishes an analogy. Upon the birth of issue, the tenant had power to alien in fee simple. If he did so, the entire estate passed, otherwise, it remained subject to the possibility of a reverter, and the descent was governed by the terms of the original limitation.

The bill is framed on the idea that, supposing the plaintiff not to have a fee simple absolute, but to have a determinable fee with a restricted power of sale, and a limitation over to the defendants in the event of his dying without a child surviving, and without selling in the manner prescribed, the defendants ought not, in conscience, to act the part of the “ dog in the manger,” and while they refuse to buy thetnselveB, prevent the plaintiff from selling to any one else by throwing a cloud over his right, and thereby defeat the power of selling, which the devisor conferred on him.

This equity, the defendants are not able to meet; for it is evident that under the will, the plaintiff either takes an absolute estate, and the limitation over to them is void; or he takes a determinable fee with a limited power of sale, and U so, it is against equity for them.to interpose difficulties in the way of his exercising it, with a view to take their chances under the limitation over.

It will be declared to be the opinion of the Court, that the *355plaintiff has the power to sell, so as to pass a fee simple estate, giving to the defendants the offer of the purchase, as directed in the will. To this end, the master will be directed to enquire of the defendants whether they desire to purchase jointly or severally, and if so, at what price. The proposal in respect to the price to be made by the first of September next, and if the parties do not agree as to the price, then the value to be fixed by disinterested persons, and the cause is retained for further directions.

Pee Curiam, Decree accordingly.