10 Paige Ch. 193 | New York Court of Chancery | 1843
The bill in this case appears to have been filed upon the supposition that it is a part of the established jurisdiction of the court of chancery to settle all questions which arise as to the construction and validity of the provisions of a will of real estate, as W'ell as of personal property. This court has jurisdiction in cases of trust. And the executor always takes the legal title to the personal estate of the testator as a trustee. For so far as the provisions of the will are valid he holds the property in the character of trustee for the persons to whom it is bequeathed. And if there is any part of such property, or any interest therein, which is not legally and effectually disposed of by the will, he holds it as trustee for those who are entitled to it under the statute of distributions. Any person claiming an interest in the personal estate of the
No possible question can arise in this case, and between these parties, as to the validity of the bequests of the will
The defendants in their answers in this case have made no objection to the jurisdiction of the court to declare the construction of the will. And if all those who are or may be affected by the decision of the questions arising upon the various provisions therein contained were before the court, so as to make the decree valid and effectual and binding upon their rights, it might be proper for me to proceed
There is a question of doubt in this case whether the limitation over to the children of Mrs. Bowers, in case she shall have any who shall survive her, is not invalid ; if it can only take effect, in favor of such children, when they arrive at the age of twenty-one. For if she should have children who are under age at the termination of her life and the life of her -mother, such a limitation to the children, if valid, would suspend the power of alienation for more than any two lives in being at the death of the testator. But if this limitation to the children of Mrs. Bowers is to take effect, in their favor immediately upon the termination of the life estate of their mother and grandmother in the premises, and is only to be divested in favor of the residuary devisee, or his heirs, in the event of the death of the children respectively under the age of twenty-one, which perhaps was the intention of the testator, this limitation to the children, as well as the contingent limitation over to the residuary devisee under the seventh clause of the will, may be found to come within the exception mentioned in the 15 th section of the article of the revised statutes relative to the creation and division of estates. (1 R. S. 723.) The complainants however have no authority to represent the rights of their future issue; and I am not aware that any of the parties now before the court have succeeded to the rights of the residuary devisee. It would be therefore improper to express any opinion as to the validity of these contingent limitations, when all the parties now before the court appear to have a common interest in defeating them; and while it is yet doubtful whether the events contemplated by the testator will ever arise.
The same questions substantially arise in reference to the substituted limitation in favor of W. Lawrence, the grandson, in case Mrs. Bowers dies without children j as the language of the devise to him is the same. And the
Neither of the three daughters of the testator has any thing more than a life estate, devised to her, in the portion of the real estate which is afterwards contingently devised to her children ; and there is no possible doubt as to the validity of the devise of these estates for life. The invalidity of all or any of the subsequent limitations, therefore, would not present a case in which the devisees for life would be compelled to elect, between the property devised to them by the will, and their shares in the remainder which is cast upon them by operation of Iqw, as the heirs of the testator, if any other provisions of the will should eventually prove to have been inoperative and void.
I have not therefore been able to find any ground on which this court would be justified in retaining jurisdiction of this case, for the purpose of settling any of the various questions raised in the bill, in favor of the complainants. The bill must therefore be dismissed with Costs ; but without prejudice to the rights of the complainants or any of the other parties to -this suit in any future litigation.