Chapter 16: Property and Conveyancing

§1.1. Restraints on alienation.Restraints on the alienation of legal interests have generally not been favored by the courts.Among the evils growing out of such restraints are that they may take property out of commerce and may lead to an undesirable increase in the market value of property.Even more significant are the objections that they tend to concentrate wealth and discourage improvements.1 In addi• tion, to the extent that a restraint precludes creditors from reaching the property, such a restraint appears to be immoral since it permits a debtor to enjoy his property without paying his creditors.2 In Bowen v. Campbell,3 the Supreme Judicial Court has indicated that it looks upon restraints on alienation with disfavor.Unfortu• nately, however, it failed to indicate precisely the extent to which such• restraints may be invalid.The facts of the case are as follows.A testatrix, who died in 1918, devised land "in equal shares to the six grandchildren of Simeon Bowen [the testatrix's father] ... abso• lutely, ... Subject to this condition that neither of said grand.children or his or her heirs shall during the life ... of any said grandchildren . . .or during the further period of lives in being of the children of any said grandchildren . . .at the time of the probate of this will, alien . . .his, her, or their interest . . .except to some other or others of the grandchildren . . .or their heirs.It being my intention that said real estate shall be retained by said grandchildren WILLIAM ScHwARTZ is