14 Wend. 265 | Court for the Trial of Impeachments and Correction of Errors | 1835
Whereupon, after advisement, the following opinions were delivered by members of the court for the correction of errors :
The validity of the legacies and annuities contained in the first clause of the will has not been argued ; they were conceded to be a charge upon the estate, and to be paid whether the principal trust in the will be sustained or not. That concession was unnecessary.
The estate may be said to be disposed of as follows : Devise to the executors and trustees, and the survivors of them, their heirs and assigns, in trust, to receive the rents and profits of the testator’s lands, and to account for, pay over, and divide the net proceeds among his twelve nephews and nieces, during their natural lives, and to the survivors and survivor of them equally, to be divided share and share alike; with remainder over to all the children of the said twelve nephews and nieces, and the children of such of them as may be dead. In shorter terms: devise to the trustees for the lives of twelve nephews and nieces, remainder in fee to their children. The main question is whether this devise is valid 1
Independent of the Revised Statutes, there could not be a well grounded doubt on the question. The only objection to such a disposition of property arises from the length of time during which it is inalienable, and its tendency to a perpetuity.
Anciently, in the time of the Saxons, an unlimited power of alienation existed in England ; but the Normans introduced the feudal law, and all lands became inalienable. William the conqueror well knew the effect of that system of military tenures, in giving stability to a throne which he had acquired by force of arms. Simultaneously with the introduction of the feudal system, he reduced the ecclesiastical revenues,
The owners of estates have been permitted however to indulge, to a considerable extent, that propensity which seems to be inherent in human nature-—a desire to continue their acquisitions in their own families as long as the law will admit, by means of what are called family or marriage settlements. Of these 1 shall only say, that one mode was that of limiting estates for life to the persons then in being, with remainders to their children, purchase. This was not entirely effectual, because the tenants for life, by destroying their estates, might bar the remainders—and hence the introduction of trustees to preserve contingent remainders. By this means the estate is rendered inalienable till the eldest son of the marriage attains the age of twenty-one, when lie can join with his father in suffering a common recovery by which an estate tail limited to the eldest son and all the remainders are barred, and an estate in fee simple is acquired. Cruise, tit. 32, Deed, ch. 23.
It has become well settled in England, that real property may be rendered inalienable during the existence of a life in being, and twenty-one years after ; that is, till the son of a tenant for life shall attain his full age. From one life the courts gradually proceeded to several lives in being at the same time; for this, in fact, only amounted to the life of the survivor. Provision has also been made for the case of an unborn
It has also become well settled in England, by analogy to these settlements, that an executory devise must vest within the compass of a life or lives in being, and twenty-one years and nine months after.
This subject has been much discussed of late in tho case of Thellusson v. Woodford, 4 Vesey, 227 to 342, and 11 Vesey, 112 to 149, in which Lord Eldon repeats the language of Lord Thurlow in Robinson v. Hardcastle, 2 Bro. C. C. 30, that a man may appoint one hundred or one thousand trustees, and that the survivor of them shall appoint a life estate ; that would be within the line of a perpetuity. What is a perpetuity, asked Lord Thurlow, but the extending the estate beyond a life in being, and twenty-one years after ? Lord Eldon adds, that the language of all the cases is, that property may be so limited as to make it inalienable during any number of lives, not exceeding that to which testimony can be applied, to determine when the survivor of them drops. The testator, in that case, devised liis estate after the death of his three sons and of his grandson, and of such other sons as his own sons might have, and of such issue as such sons might have as should be living at the time of his death, or should be born in duo time afterwards, and after the death of the survivors and survivor, to such person as at that time should then be the eldest male lineal descendant of his son, Peter J. Thellusson, and his heirs forever. In that case there were nine persons at the testator’s death whose lives must be terminated before the remainder could vest; in this there are twelve, and that is the principal difference. In that case the person of the remaider-man was equally contingent with the children of the twelve nephews and nieces in this case, with no other difference except as to the number. In that case the devise was declared to be good and valid in law by the lord chancellor, assisted by the master of the rolls and Judges Buller and Lawrence, and afterwards affirmed in the house of lords up
The only question then will be,-whether our Revised Statutes render such a devise invalid ?
In considering this case, as it is affected by the Revised Statutes, I shall take three views of it:
I. The effect of the statute, supposing the trust to be embraced under the 3d sub. of the 55th section.
II. I shall inquire whether it is a trust under the 55$h section at all.
III. If not embraced in the 55th section, is the trust valid as a power in trust ?
1. In construing statutes, the usual and proper mode is to ascertain the intention of the legislature, from the language they have used, connected with the slate of the law on the same subject anterior to the passage of the statute. When the courts know for what particular mischief the legislature Intended to provide a remedy, it is their duty so to construe the statute as most effectually to suppress the mischief and advance the remedy. It- seldom happens that a key is furnished by the law-making power, whereby the courts may unlock the arcana of the legislative mind, and thus ascertain with unerring certainty the real intention of the legislature. It fortunately happens in this case that we* have such a key; and I hope and trust, that by a proper application of it, light may be thrown upon whatever may appear obscure; apparent discrepancies may be reconciled ; and upon comparison of a 1 its parts, we shall find *• a system simple, uniform and intelligible.”
It is known to us all, that preparatory to the late revision of the statutes, the work of revising, analyzing, collating, composing, and, if there were such a word, I might say codifying,and presenting to the legislature in a new form the statutes of the state, was committed to three gentlemen, distinguished for their legal learning, their ability and their industry. The result of their labors is before us in their reports to the legislature. Whenever their recommendations have betin adopted by the legislature, and their notes have declared the
In the further progress of my remarks, I shall quote freely from these notes when necessary, as expressing the intention of the legislature, and as containing the reasons or premises sustaining the conclusion to which I have arrived.
I.refer again to the devise itself. It is a devise of all the testator’s estate, real and personal, to the trustees, their heirs and assigns, as joint tenants, in trust, to account for, pay over and divide among his twelve nephews and nieces, the net
It is a cardinal rule, in the construction of wills, that the intention of the testator shall be carried into effect if consistent with the rules of law 5 so is the common law'; so are the Revised Statutes. What did the testator mean by the clause to which reference has been made ? On that subject there is no difference of opinion. All agree that the testator intended to prevent the alienation of his estate during the lives of the twelve nephew's and nieces, and for two years after the death of the survivor of them; and that then it should be divided among the children and grand-children of the twelve nephews and nieces. That such was the real and actual intention of the testator is perfectly plain ; and it is also perfectly dear that if that intention is consistent with the rules of law, it is the duty of the court to give it effect.
Previous to the operation of the Revised Statutes, it was competent for a testator to render his estate inalienable for any number of lives in being at the time of his death. “ An estate,” say the revisers, “ is never inalienable unless there is a contingent remainder, and the contingency has not occurred and they give the instance of a grant to A for life, remainder to B. (a person in being) in fee. Here there is no suspense of the power of alienation, because the owners of the life estate and of the remainder may unite, and thus convey the whole estate. This idea they have incorporated, as they supposed, in the 14th section. “ Such power of alienation is suspended, when there are no persons in being by whom an absolute fee in possession can be conveyed.” Unless therefore the owners of the precedent estate, the trustees, can unite with the owners of the remainder, the power of alienation is suspended. According to the doctrine of the revisers, if the remainder is contingent, and the contingency has not occurred, the estate is inalienable.
In the case now under discussion, the remainders fall under the fourth class of Mr. Fea me: the persons who are to take arc not ascertained, and probably not in being. The event here upon which the remainders are to vest, is the death of the survivor of the twelve; and their children who are to take, are such as shall be then in being, and the children of such as may be dead. The devise is not to such children of the twelve as should be living at the death of the testator; they may be all dead before the death of the survivor of the twelve. It was perhaps unnecessary for me to have referred to the former definitions of contingent remainders, as the statute before us contains all that are necessary to a clear understanding of this ease. By § 10, a future estate is an estate limited to commence in possession at a future day, either with or without a precedent estate. By § 11, a future estate dependant on a precedent estate, is termed a remainder. By the statute definitions, therefore, the estate given to the grand-nephews and nieces is a rema rider, and is what is called a future estate; it is also dependant upon the precedent estate, which is the estate vested in the trustees for the lives of the twelve nephews and nieces. Thus far then we have, in the language of the statute, the precedent estate in the trustees, which may be called a present estate, and we have the remainder over in fce, which is a future estate, and these two compose the whole estate which the testator himself had. I shall hereafter take notice of the interest of the twelve nephews and nieces ; I atn now speaking of the estate in the lands which are the subject of the devise. Section 13. Future estates are either vested or contingent. They are vested when there is a person in being who would have an immediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate. They are contingent whilst the person to whom, or the event upon which they are limited to take effect, remains uncertain. These definitions of vested and contingent remainders, it will be seen, are very different from the common law definitions of those estates. At the common law, vested remainders are those by which a present
This remainder is also contingent, according to the statute definition—the event upon which it is limited to take efi'oet is certain, to wit, the death of the twelve nephews and nieces; but the persons who are to take are uncertain, depending upon the fact of their being in existence at the death of the last of the twelve. If the remainder now vests in the fifteen grand-nephews and nieces, the estate is not, in the language of Mr. Cruise, invariably fixed to remain to a determinate person—for all who shall be born before the death of the twelve nephews and nieces will also be entitled to a share. It was contended upon the argument, that this was an estate which would open to let in after-born children. It is not necessary, I apprehend, to discuss that point, though such must be the case, if this is a vested remainder. Whether, however, the remainder be vested or contingent is not a controlling fact in the case, and does not determine the rights of the parties.
The 15th section declares that the absolute power of alienation shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance of not more than two lives in being at the creation of the estate. By § 14, the power of alienation is suspended where there are no persons in being by whom an absolute fee in pos
To determine whether the power of alienation is suspended by cither or both of these estates, we must ascertain whether there are persons in being by whom an absolute fee in possession can be conveyed. It is argued that the power of alienation is not suspended, because an absolute fee in possession can be conveyed—that the trustees, the twelve nephews and nieces who are entitled to the net proceeds of the rents and profits, and the grand-nephews and nieces in whom the remainder vests, may all unite in a conveyance, by which the whole estate may be alienated. To this it is answered, that the trustees cannot convey, because the 65th section declares, that when the trust shall be expressed in the instrument creating the estate, every sale, conveyance or other act of the trustees in contravention of the trust, shall be absolutely void. The creator of the trust intended it should continue during the lives of his twelve nephews and nieces. The trustees cannot therefore legally convey ip contravention of their trust: it is not enough that they have the physical power to execute a conveyance; the statute requires the moral legal power. To be able to convey within the meaning of the 14th section, the persons must be able to execute a legal valid conveyance; an absolute fee in possession must be conveyed, which cannot be done by a deed which is void the moment it is executed. To my mind it is clear that the trustees cannot legally convey their estate.
It may be doubted, perhaps, whether the twelve nephews and nieces have any interest to convey. Section 60 says, that “ every express trust, valid as such in its creation, except as herein otherwise provided, shall vest the whole estate in the trustees, in law and in equity, subject only to the execution of the trust. The persons for whose benefit the trust is created shall take no estate or interest in the lands, but may enforce the performance of the trust in equity. This is positive and plain ; the whole legal and equitable estate is vested in the trustees, and the twelve nephews and nieces have no estate or interest. The whole legal and equitable estates embrace the whole estate; there is nothing left. There may be liens upon it, but they constitute no part of the estate itself; the twelve nephews and nieces have no estate or interest to convey; all they have is a mere right to compel the performance of the trust; more like an unassignable chose in action than an estate in lands; and this right they are prohibited from conveying.
I have shown that the trustees cannot lawfully convey ; and that alone renders the estate inalienable. I apprehend also, that the remainder-men cannot convey,for the reason that the persons who are to take the remainder are contingent, and
It will be seen by the devise, that the time of suspension is during the natural lives of twelve persons, the nephews and nieces of the testator, who are named in the devise; that is, during the continuance of twelve lives in being at the creation of the estate. The 15th section says, “ The absolute power of alienation shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance of not more than two lives in being at the creation of the estáte.” The devise in effect says, that the absolute power of alienation shall be suspended during the continuance of twelve lives in being at the creation of the estate, and for at least two years afterwards. There is a manifest repugnancy, and at least so much as is repugnant must be void.
Before I pursue this subject further, I will consider an objection to the application of the 15th section to this case, which was urged upon the argument. It was said that the 15th section was applicable to future estates only. The reason for that assumption is, that future estates alone were the objects of the six previous sections. The juxta position of these sections is not alone sufficient to authorize the court to say, that future estates only were intended, when the language is broad enough to embrace all estates attempted to be conveyed by “ any limitation or condition whatever.” But there is a conclusive answer found in the notes of the revisers, and the amendments made by the legislature to that section as originally reported, together with the rejection of the 17th section as reported. The 15th section as reported, reads thus: “ The absolute power of alienation shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance and until the termination of a life or lives in being at the creation of the estate.” The 17th section as reported, reads thus: In every creation of a future estate the
From these remarks it is evident that the object was to abridge, not to enlarge the period of inalienability; that the termination of any number of lives selected by the testator was
But to return to the deviso, I have said, and I think it has been shown, that there is a manifest repugnancy between the statute and the devise to the trustees. The statute fixes the limit of the inalienability of the estate to the termination of two lives. The devise extends such inalienability to twelve lives. It is clear therefore, that the devise to the trus
I must again refer to the notes of the revisers as explanatory of this branch of the case. “ To prevent a possible difficulty,” say they, “ in the minds of those to whom the subject is not familiar, we may also add, that an estate is never inalienable, unless there is a contingent remainder, and the contingency has not yet occurred. When the remainder is vested, as when the lands are given to A. for life, remainder to B. (a
The case I have supposed is in principle the case now before us. Suppose, for the sake of the argument, that the trustees can convey, though I have shown that they cannot—suppose, too, that the twelve persons beneficially interested in the rents and profits can convey, though the statute says they shall not—and I will for the present suppose that a conveyance from them is necessary for the purpose of alienation—suppose they and the trustees are ready and willing to unite in a conveyance to transfer an absolute fee in possession. It is very clear that they cannot do it alone, for the interest and estate
Unless I greatly deceive myself, I have established these propositions:
First. That as to all estates, whether present or future, the absolute power of alienation shall not be suspended beyond the continuance of two lives in being at the creation of the estate. This shall not be done by any limitation or condition ; that is by any kind of assurance or conveyance; by any shift or contrivance whatever, by which estates may be created. In short, that it shall not be done at all.
Second. That the devise in question attempts to render the estate inalienable for twelve lives: 1. By conveying an estate to the trustees for twelve lives; the trustees being unable to convey without a violation of the trust. 2. By the creation of a future estate to commence in possession in two years after the death of the survivor of the twelve lives.
Third. That by the devise the estate is inalienable: 1. Because the statute prohibits trustees from conveying in violation of their trust; and 2. There are no persons in being who can convey the remainder. I take no notice here of the inalienability of the interests of the twelve nephews and nieces in the rents and profits, for if alienable, the estate itself would not be, and these interests are no part of the estate. From this view of the case, my conclusions are, 1. That the future estate or remainder was void in its creation, according to the 14th section: 2. That the precedent estate in the trustees was not necessarily void in its creation.
Although the testator attempted to render his estate inalienable longer than the law will permit, yet it is the duty of the court to carry into effect his intent, so far as is consistent with the rules of law ; in other words, so to construe the devise as to render the estate inalienable as long as the Jaw will permit: which is for two lives, and no longer. It follows, upon this view of the case, that at the expiration of the second life, the estate of the trustees would terminate, and the whole estate would vest in the heirs at law of the testator. This seems to me to
Other views have been presented; it is proper to pursue them. Before doing so, I will remark, that the revisers in presenting the provisions iii article second, on the creation and division of estates, expressed their confident belief that their adoption would extricate this branch of the law from the perplexity and obscurity in which it was before involved. They have certainly succeeding to a very great extent, if not entirely. And they have éffected this object as they have themselves remarked, principally by the new application of established rules, to all classes of expectant estates created by the act of the party. There are, however, some new principles; one I will point out, to which the revisers have not called the attention of the legislature. Formerly estates could not be rendered inalienable, but by means of contingent estates. They may now be rendered inalienable by means of a present estate—a trust estate, when the trust shall be expressed in the instrument creating the estate. Such an estate, by section 65, cannot be aliened by the trustees in contravention of the trust. Whoever, therefore, creates a trust estate to receive the rents and profits of land for any fixed period, renders the estate inalienable during the existence of the trust, or to the extent permitted by I law. If indeed the trust be to sell and convey, then it is' not inalienable.
If, however, the revisers have accomplished much in the creation and division of estates merely by a new application of old principles, they found in the old doctrines of uses and trusts, and powers, subjects which baffled their powers of modification. In their notes to these articles (No. 2 and 3) they remark in the language of Mr. Cruise, that “ the law of real property is the most extensive and abstruse branch of English jurisprudence,”—and in their own more eloquent language, they say: “ Such indeed are its extent and intricacy, that even in the legal profession it is very imperfectly understood by any who have not made it an object of peculiar study and attention; and so remote are its principles and maxims
Though the labyrinth of cross-remainders is left standing, I shall not enter it, believing that it does not stand in our way in pursuing the path of justice. I-will state my reasons for this belief; and for this purpose I shall assume, as has thus far been assumed, that the trust in controversy, to wit, a trust to receive and pay over, is one authorized by the Revised Statutes.
The revisers, in a learned note to article 2, have given a concise and accurate history of the rise and progress of the doctrine of uses and trusts, and have shown its defects. They say, “ There are three classes of trusts, each requiring to be noticed: I. When the trustee has only a naked and formal title, and the whole beneficial interest or right in equity to the possession and profits, is vested in those for whose benefit the trust is created ; 2. When the trustee is clothed with some actual power of disposition or management, which cannot be properly exercised without giving him the legal estate and actual possession; 3. Trusts arising or resulting by implica
The only possible way in which cross-remainders can be introduced into this case, is by converting the interest of the twelve nephews and nieces in the proceeds of the rents and profits, into legal estates. Now I ask, if it was the intention of the revisers and the legislature to abolish all such fictions, not only as unbecoming the dignity of a due administration of justice, “ not merely as curious and overstrained, but as entirely useless, unless to propogate lawsuits,” why should this court seek to perpetuate “ that infinity of subtleties and refinements” with which this branch of our jurisprudence has been overloaded; and from which it was the expressed intention of the revisers and the legislature to relieve us? I know it may be said that these remarks were made in relation to formal trusts; but if active trusts are to be involved in the same intricacy and obscurity, and to be followed by similar consequences, are they not liable to the same objections ? In relation to trusts of this description, the revisers remark, note to section 56, as reported, now section 55, “ As the creation of trusts is always in a greater or less degree the source of inconvenience and expense, by embarrassing the title and requiring the frequent aid of a court of equity, it is desirable that express
This is a modification of a species of trust mentioned by Mr. Cruise, 1 Cruise, tit. 12, Trust, ch. 1, § 12, 13, where a man made a feoffment in fee to his own use during his life and after his decease that J. N. should take the profits; this was a use in J. N.; contrary, if he said that after his death his feoffees should take the profit^ and deliver them to J. N.; this would be no use in J. N., because he could have them only by the hand of the feoffees. Thus the feoffees would have the legal estate, and consequently J. N. could only have a trust which would be enforced in equity. This rule has been applied to devises; but a distinction has been made between a devise to a person in trust to pay over the rents and profits to another, and a devise in trust, to permit some other person to receive the rents and profits. In the first case it was held that the legal estate should continue in the first devisee, in order that he might be able to perform the trust; for when he is directed to pay over the rents, he must necessarily receive them. But in the, second case it has been adjudged that the legal estate is vested by the statute in the person who is to re
But suppose l am wrong in this view of the subject; suppose there may be a joint tenancy or a tenancy in common with cross-remainders in “ a right to enforce the performance of a trust in equity:” how does that aid the perpetuity which
How can this consequence be avoided by the supposition of a tenancy in common in the interest, of the twelve nephews and nieces ? In order the more clearly to convey my ideas, I will separate the trustees from the persons benefit-ted by the trust. I will suppose John Doe and Richard Roe are the trustees who are to collect the rents and profits, and the twelve nephews and nieces are the persons who are to receive them. The estate of John Doe and Richard Roe is a joint tenancy, and not a tenancy in common. It is so expressly by the devise itself; it is so by the 44th section. They hold the legal and equitable estate, and that is a joint tenancy. It cannot be separated, unless by some other section such separation is permitted. We now suppose the interest of the twelve nephews and nieces to be a tenancy in common; that is, the rents and profits, when received by the trustees, (John Doe and Richard Roe,) are separated into twelve separate parcels, and marked from one to twelve. The nephews and nieces are numbered in the same way, and each person is entitled to his corresponding number of the parcels. It is argued that each
Besides, if we suppose a tenancy in common, there can be no remainders. The trust is for the life of each person, and that part of the devise which purports to give a remainder is void, not being authorized by the statute. The statute authorizes such a trust for the life of any person, or for a shorter term, not for a longer term ; but the negative is implied. The trust however is to pay to the survivor, and clearly intended to be joint and continue for twelve lives, and therefore void in its creation ; and by the 67th section, the trust being at an end, the estate in the trustees ceases. To speak more correctly as to this case: the trust attempted to be created being void, (he devise to the trustees is also void, and the estate belongs to the heirs at law.
II. Is this a trust under the 55th section 1 As to this section the revisers say, “ The object of the revisers in this section, is to allow the creation of express trusts in those cases, and in those cases only, where the purposes of the trust require that the legal estate should pass to the trustees. An
In this note the revisers have told us what cases the 55th sect., sub. 3, was intended to provide for, to wit: minors, married women, lunatics and spendthrifts. As the 3d subdivision of this section was first drawn, it is very clear that this species of trust was intended for no other persons than those enumerated. It reads thus; “ To receive the rents and profits of lands, and to apply them to the education and support, or support only, of any person, &c.; and it was passed by substituting the words or either for the words support only. So it appears now in the Revised Statutes. During the session of 1830, an act was passed “ to amend certain provisions of the Revised Statutes, and in addition thereto.” This subdivision was then amended by striking out the words “ education and support, or either,” and by substituting the word “ use” in lieu thereof. The only reason given by the revisers was, that “ the word ‘ use’ includes education and support, and each of them. It will also include other purposes which ought to be provided for.” But it is not intimated that any other classes of persons are intended to be provided for, nor that a trust nearly approaching a mere formal trust, was to grow out of the word
III. If the devise is not valid under the 55th section, is it valid as a power in trust ?
The counsel for the trustees, aware that the view of the case just presented might be taken by the court, suggested that if the devise is invalid as a trust, it is valid as a power, and refers to the 58th section, which is as follows: “ When an express trust shall be created for any purpose not enumerated in the preceding sections, no estate shall vest in the trustees; but the trust, if directing or authorizing the performance of any act which may be lawfully performed under a power, shall be valid as a power in trust, subject to the provisions in relation to such powers contained in the third article of this title.” The 59th section is in these words: “ In every case where the trust shall be valid as a power, the lands to which the trust relates shall remain in or descend to the persons otherwise entitled, subject to the execution of the trust as a power.” Our attention and inquiries must therefore be directed in a new channel. If no estate has vested in the trustees, then it would seem to follow, that if the property is inalienable, it is not imputable to the devise to the trustees. We must inquire, therefore, whether the acts which it directs may be lawfully performed under a power; if so, it is valid as a power of trust.
It is to be remarked, that the whole doctrine of powers, as it existed previous to 1830, is abolished, and a new system introduced. The old vocabulary is superseded by a new one. Instead of powers appendant and appurtenant, collateral and in gross, or simply collateral, we have now powers general or special, and beneficial or in trust. (§ 77.) Instead of donor or donee, we have grantor and grantee of a power. I will give the definition of each from the statute itself. And, first,
A power, whether general or special, is beneficial where no person other than the grantee has by the terms of its creation any interest in its execution.
A general power is in trust, where any person or class of persons, other than the grantee of such power, is designated as entitled to the proceeds, or any portion of the proceeds, or other benefits, to result from the alienation of the lands according to the power.
A special power is in trust: 1. Where the disposition which it authorizes is limited to be made to any person or class of persons other than the grantee of such power; or, 2. Where any person or class, other than the grantee, is designated as entitled to any benefit from the disposition or charge, authorized by the power.
Every trust power is imperative, unless made expressly to depend on the will of the grantee. § 95 to 97 inclusive. Section 128 provides that the period during which the absolute right of alienation may be suspended by any instrument in execution of a power, shall be computed not from the date of such instrument, but from the time of the creation of the power. This last section shows clearly that the legislature did not intend that property should be rendered inalienable by means of a power, longer than by the act of the party creating the power ; and that the time should run from the creation of the power, not its execution. For instance, the owner of land grants or devises the same to A. for life, with power to him to devise the same in fee. It shall not be in the pow
A general power authorizes the inalienation in fee to any -one; a special power authorizes a like conveyance in fee to persons designated, or an estate less than a fee. The only question therefore, that can arise thus far, is whether the power to lease may not be embraced in these definitions. The powers last spoken of, however, are not powers in trust, and unless the devise in question is good as a power in trust, it must fail. It is not sufficient that it is within any other ■definition. I have already given the definition of a general power in trust. It is only applicable when the grantee of the power aliens the land, sells absolutely by virtue of an express power, and divides the proceeds, if more than one, or pays them over to one, if there are no more designated as entitled to them. It is essential also, that the person or class of persons entitled to the proceeds, or any portion of them, or other benefits to result from the alienation, shall be other than the grantee of such power. Here the grantee of the power, or grantees, (for it is immaterial whether singular or plural is used,) are the persons entitled to a portion of the proceeds. It is therefore not valid as a general power in trust. A special power in trust is, 1. Where the disposition which it authorizes is limited to be made to any person, or class of persons, other than the grantees of such power, that is, perhaps to lease, sell or mortgage to some persons designated by the grantor of the power, other than themselves ; or, 2. Where any person or class of persons, other than the grantee, is designated as entitled to any benefit from the disposition or charge authorized by the power. That is, as I understand it, the grantee of a special power in trust, may sell, lease or mortgage lands for the benefit of any designated person or class, other than himself, when he is expressly authorized to do so; but he has no authority to receive the rents and profits himself, and pay them over, or dispose of them in any way whatever, and for
To apply these remarks and propositions: If the devise in question is good as a power in trust, then the trustees take no interest under the devise; the lands descend to the heirs at law, and they are entitled to receive the rents and profits, until the grantees of the power choose, or are compelled to1 execute it. But the conclusive answer to the whole argument is, that the grantees of the power, if the trustees are to be considered such, are the very persons entitled by the devise to the proceeds, or part of the proceeds, or other benefits to result from the alienation or disposition which they, as grantees of the power, are to make; and in such case it is not a general power in trust, neither is it a special power in trust. It is not embraced in the first subdivision, because the leases which it authorizes are not limited to be made to any person or class, other than the trustees themselves. Nor is it embraced in the second subdivision, because the grantees, that is, the trustees, are designated as entitled to the benefits arising from the execution of the power. Nothing therefore can be more clear than that the power contained in this devise is not a power in trust at all, neither general nor special. Powers which would execute trusts like this would be subject to the same objections as formal trusts. “ They would answer no end but to facilitate fraud; to render titles more complicated, and to increase the business of the court of chancery,” as the revisers justly remarked concerning formal trusts.
I have thus gone through this whole case with some care ; although I cannot presume to say, that I am sure I am right, yet never has my mind come to a more satisfactory conclusion, founded, I flatter myself, upon the statutes, upon reason and common sense. If the other members of the court shall have come to the same conclusion, the whole trust estate in the trustees, so far at least as it operates in favor of the
Before I leave this subject, I must be indulged in a single remark in relation to the revisers’ reports. I have quoted freely from them, because they are the fountain head of information as to the intention of the legislature. It is only by taking a view of the whole system, that we can judge correctly of any of its parts. In those reports we have an expose of the old system, its defects pointed out, and the remedies proposed. It is by keeping these objects constantly in view, that we can most effectually carry into operation the intentions of the legislature.
I will now recapitulate the points upon which I rest my opinion.
I. Assuming that the trust in favor of the twelve nephews and nieces is authorized at all, for any time, by the 3d subdivision of the 55th section, I have endeavored to show that the estate is rendered inalienable by the devise to the trustees, which by the devise itself necessarily continues during the continuance of twelve lives.
I have endeavored to show that the absolute power of alienation is also suspended by the creation of the remainder in favor of the grand nephews and nieces, to be vested in possession two years after the death of the survivor of the nephews,
2. Under my second general head, I have examined the 55th section and the intent of the legislature in the 3d subdivision, and have endeavored to show that the words apply to the use of do not mean to pay over, and consequently that the object of the trust in the devise in question is not sanctioned by the Revised Statutes, but is such as the law cannot approve ;. and that the trusts authorized by that subdivision are-intended to be active trusts, in which the agency of a trustee is indispensable for the purposes of the trusts; not to. constitute a person his own trustee, nor to effect a purpose-disapproved by the law, to render real estate inalienable.
3. Under my third head, I have endeavored to show that the trust attempted .to be created by the devise in question cannot be sustained as a power in trust: I. Not as a general power in trust, because such a power contemplates an absolute sale and division of the proceeds, and because such a power cannot be executed by the grantee thereof for his own
In any view of the subject which I have been able to take, I cannot avoid the conclusion that the devise, in so far as it conveys a trust estate for the benefit, and to continue during the lives of the twelve nephews and nieces, is entirely void, and that the estate vests in the heirs at law.
The validity of the legacies and annuities was not argued ; but if my premises are correct, the annuities must also fall, as depending upon the same principles with the rights of the twelve nephews and nieces. They depend upon the trust for'the lives of the twelve nephews and nieces, and render the estate inalienable; and resting upon the same rules as future estates in land, are void in their creation. The legacies to the Theological Seminary and to St. Philip’s Church are good, as clearly authorized by the 2d subdivision of the 55th section. I state these conclusions as to the legacies and annuities as corollaries from the principles above supposed to be correct, and not as being any part of the present adjudication.
My opinion is, that the decree of his honor, the Chancellor, be reversed.
The first question to be considered and decided is, whether the trusts raised by the first and second clauses in the will, for the benefit of the twelve nephews and nieces, come within any of the provisions of the second article of the Revised Statutes regulating these interests. If they do not, then it follows they are void, unless they can be preserved and executed under the next article as a power.
The 45th section expressly abolishes all uses and trusts, except as authorized and modified in that article ; and it is declared that every estate and interest in lands shall be deem
The 55th section authorizes the creation of express trusts for four specified purposes. The 3d subdivision, to receive the rents and profits of lands and apply them to the use of any person, during the life of such person or for any shorter period, subject to the rules prescribed in the first article. This is the only section or clause within which it is pretended the trust can be brought or supported as such. The clause was originally reported to the legislature as follows: “ and apply them (rents and profits) to the education and support, or support only,” of any person, &c. It was amended by striking out “ support only” and inserting “ either,” so that it read, as passed and took effect 1st January, 1830, “ and apply them to the education and support, or either,” of any person. In about three months after the section went into operation, it was amended again by striking out the words “ education and support, or either,” and substituting simply the word “ use,” giving obviously much greater scope to the power in creating the trust; the legislature deemed it, no doubt, too much restricted as it was originally passed. It should be borne in mind, that while this clause, permitting by far the most important trust in the article, underwent very material modifications, the other sections remained as originally reported ; and it will then be perceived that some, if not most of the apparent incongruities and difficulties in the practical operation of the article as a system, are to be traced to this circumstance. As the clause was originally reported and passed, the object of it was to permit the creation of trusts to receive rents and profits, and apply them to the education and support of persons not qualified from age, condition, or some infirmity, to take charge of the fund themselves. This is sufficiently clear from the qualified language used; and the propriety and even absolute necessity of allowing the creation of such a trust was too obvious to have escaped either the revisers or the legislature. It was recommended and defended upon the above ground.
When the office of the trustee may be confined, as in this case, simply to collect the rents and profits, and pay them over, without the exercise of any discretion in their application, all the provisions to prevent the beneficial owner from disposing of his interest, do not seem to be so material; and yet they may be. A prudent father or benefactor may consistently confide to his son, or other object of his bounty, the absolute control of the annual rents and profits, and withhold from him the disposition of the estate. At first I entertained doubts
The difficulty in the clause in its original enactment, consisted in restricting the power to create the trust to the two specified objects, and which necessarily excluded by implication, any discretion over the trust fund beyond them. The whole of the rents and profits might not be exhausted in education and support. What was to be done with the excess ? Striking out the limitation left the object undefined. This enlargement, however, of the trust, has not altered the effect •or bearing of the 60th and 63d sections. They are still as applicable and controlling, as regards the interest of the beneficial owner, as before. Indeed, his condition and the nature of his interest are in no way changed. He may now exact from the trustee in equity, the amount of the rents and profits, directed to be applied to his use, be they more or less, as he before could those directed to be given to him for his education and support. But the principal trust fund, in the hands of the trustee, is beyond his reach.
It was said on the argument, that the 63d section was intended as a restriction upon the person, and not upon the estate, and that as the devisor in this case authorized the cestuis
In this case, if the nephews and nieces can dispose of the trust term, of what use could it be to any one to put the legal estate into the hands of the trustees 1 Why not devise it to them at once, without the useless machinery of passing it through the hands of trustees to purchasers ? It is true the assent of a majority required in the will is some check $ but if a trust can be thus raised with a qualified, it may be with an absolute power of assignment. By applying strictly the 60th section to the trusts under the 55th, and thereby preventing any assignment of them by the beneficial.owner, we shall go far in confining the creation of them to the real objects for which they were originally designed, and at the same time accomplish all that the necessity of society or convenience can require. It is surely ho hardship if we compel a man, to give to a son, or other object of his bounty, an estate directly, of which he is willing to give him the absolute disposal through the instrumentality of a trustee.
Believing the trust to be expressly authorized within the provisions of the second article, I am brought to the consideration of the only difficult question, upon my view of the case, and that is, whether or not this trust term violates the provisions of the fíe vised Statutes, designed to prevent the creation of perpetuities ? That it would be unexceptionable in this respect, according to the rule of the common law, is not doubted ; but the statute has materially modified that rule. It allowed property to be tied up; that is, the power of alienation to be suspended, for any number of lives in being at the creation of the estate, (which is at the death of the testator in case of a will,) and the period of minority, and gestation. This enabled any person to keep his estate in his, family during the period of the longest liver of the persoils whose lives he selected, and twenty-one years and nine months. I did not understand the position taken, and I think satisfactorily maintained by the chancellor in his opinion, now to be seriously disputed, that under the 15th section, the absolute power of alienation could not be suspended beyond two lives in being
In order understandingly to answer the question, we must inquire into the nature of the estate or interest devised. On the part of those who maintain the validity of the will, it is contended it is in the nature of a tenancy in common with cross-remainders, that is,that each holds an undivided twelfth part of the rents and profits for life, with cross-remainders, that give to each survivor a portion in the share of the deceased co-tenant. Those contending against the validity of the will, maintain that the estate is in the nature of a joint tenancy, a distinguishing incident of which is, the estate being an entirety, but one in law, on the death of a joint tenant the survivors or survivor still enjoy the whole. It will be seen that the practical operation upon the nephews and nieces in either view of the nature of the estate devised, is the same, the interest of any one dying goes over to the survivors. It is contended, however, that the mode of arriving at the result is very material in regard to the validity of the trust. The testator devised all his estate, both real and personal, to his executors and trustees, and the survivors of them, their heirs and assigns forever, as joint tenants, and not as tenants in common, in trust for the purposes afterwards declared. There were thirteen of them, the twelve nephews and nieces and the brother of the testator. Superadded to this express grant is the positive enactment of law, contained in the 60th section before referred to, and “ shall vest the whole estate in the trustees in law and equity, subject to the execution of the trust,” and the negative provision that the nephews and nieces “ shall take no estate or interest in the lands, but may enforce the performance of the trust in equity.” Upon a strict and literal construction of this section, it is obvious the nephews and nieces
It may be observed that the application of rules concerning legal estates to trusts, in a court of equity, is not original in-the statutes. The beneficial owners, soon after the statute of uses were, and ever since have been, regarded in that court as-the legal owners, and the trust regulated in the same manner-as a legal estate. We have the authority of Lord Mansfield, that the cestui que trust is actually and absolutely seized of the-freehold in the consideration of that court; that the trust is-there the land, and that the declaration of the trust is the disposition of the land. Cruise, tit. 12, ch. 2, § 1 to 6 inc.. Assuming, then, that in determining the- nature of the interest-of twelve, that is, whether it must be deemed & joint tenancy or tenancy in common, we are to be governed by the rules applicable to legal estates, it becomes necessary to look at some of the principles and authorities concerning-them.
At common law, an estate in joint tenancy, says Sir W. Blackstone, is where lands or tenements are granted to two or more persons to hold in fee simple, fee tail, for life, for years or at will. In consequence of such grants, an estate is called an estate in joint tenancy, which signifies an union, or conjunc
Before we refer to some authorities on this branch of the case, we will recur to the material words of the will: “I direct my executors and trustees to pay over and divide (the rents and profits) to and among my nephews and nieces, (naming the twelve) during their natural lives, and to the survivors and survivor of them, equally to be divided between them, or such of them as shall from time to time be living, share and share alike.” The case of Fisher v. Wigg, 1 Ld. Raym. 622, the words were—and after her decease (his wife) “ to the use of B., C., D., E. and F., his children, equally to be divided among them, and their respective heirs and assigns forever.” The question was, whether the children took as joint tenants, or tenants in common. The case was elaborately examined by the judges; Turton and Gould maintaining it was a tenancy in common—Ch. J. Holt, that it was an estate in joint tenancy. He conceded the position to his brethren, if these words had been in a will.
In Hawes v. Hawes, 2 Ves. sen. 13, the words were “ to his three children and their heirs when he, she and they attained the age of twenty-one or married, equally to be divided between them, share and share alike as tenants in common, and not as joint tenants, with benefit of survivor-ship.” The will then directed the rents and profits to be for their maintenance and education during their minority ; one of the three children died under age, and the question was, whether his share went to the survivor. The lord chancellor said, that joint tenancies were not favored, because they were inconvenient estates, and made no provision for famillies in consequence of the incident of survivorship. The only difficulty in this case arosé from the words, with benefit of survivorship, that followed those indicating a severance of the interest. He gave effect to them, however, by holding that the share of the deceased child should go to the survivors, and not to the heir at law, deciding that there was a joint tenancy in the rents and profits during the minority.
In the case of Clerk v. Clerk, 2 Vernon, 323, the words were, “ that his sisters, T. and A., might live in the capital house, and equally divide the rents and profits of the four farms betwixt them, and the whole to the'survivor of them.” It was resolved that this was a joint estate, and not a tenancy in common ; for although the words equally to be divided betwixt them, in a will, made a tenancy in. common by way of construction on the intent of the testator, yet if afterwards it is declared it should go to the survivors, that would oust such construction, and it would be a joint estate.
In Rose v. Hill, 3 Burr. 1381, the words were, “ to his five children, and the survivors and survivor of them, and the executors and administrators of the survivor of such survivors, share and share alike, as tenants in common, and not as joint tenants.” Lord Mansfield said, “an estate to more than one, with a benefit of survivorship, was a joint tenancy.” But he put the case upon the express words, that the estate should be held as a tenancy in common.
In Armstrong v. Eldredge, 3 Br. Ch. 215, the words were, “ in trust to pay the interest and profits thereof to his four grand daughters, equally between them, share and share alike, for and during their respecting natural lives, and after the decease of the survivor of them, in trust, to pay the principal money to and among the children of his said grand daughters, equally to bo divided between them, share and share alike.” Two of the grand daughters died, leaving children. It was decided the two living grand daughters took the whole interest by survivorship; for notwithstanding the words, equally to be divided, share and share alike, the context shewed that a joint tenancy was intended, as the interest was to be divided among four, whilst they were alive *, three, whilst they were alive ; and nothing was to go to the children whilst the mothers were living.
In Blissel v. Cranwell, 1 Salk. 226, the words were, “I give to my two sons, and their heirs, and the longest liver of them, equally to be divided between them arid their heirs” This was decided to be a tenancy in common, according to the intent of the testator; it being manifest he meant to provide not only for his two sons, but for their posterity ; that not only his
In Russel v. Long, 7 Ves. 551, the words were, “ to pay, apply and dispose of the whole sum, principal and interest, unto his three sisters, and the survivors and survivor of them, during their natural lives, share and share alike ; or permit his said sisters, and the survivors and survivor of them, to receive and take the same in equal parts, shares and proportions, to and for their and her separate use and benefit, the survivors and survivor, or their and her heirs forever.” One of the sisters died before a distribution of the property, which was personal estate. The master of the rolls declared it to be in the nature of a tenancy in common.
We might refer to numerous other cases upon this “ litigated and disputed point in the books,” as determined by Lord Hardwicke, but they would shed no additional light upon the question. It is clear, that where the words “ equally to be divided,” “ share and share alike,” “to and among,” and others of like import, stand alone in a will, they indicate a severance of the estate devised, and establish a tenancy in common. In connexion with a peculiar phraseology of the will, they may also so strongly indicate an intention of a severance of the estate, as to compel the court to reject the term survivor, or other repugnant expressions ; as in the case of Blissel v. Cranwell, and Russel v. Long. In the former case the devise clearly shews that the testator intended to provide for the heirs of the two sons, which was repugnant to the idea of a survivorship, and joint tenancy. In the latter, the estate being personal, and the principal and interest directed to be paid to the three sisters in equal parts, shares and proportions, for their separate use, and their heirs, afforded very conclusive ground against the claim of survivorship. It is equally clear and well settled, that if the testator intended to give the estate to the survivors or survivor of the devisees named, the idea of a severance is excluded, and they take an estate in joint tenancy, as was declared in the cases of Clerk v. Clerk, Baker v. Giles, and Armstrong v. Eldredge, even against' words of a contrary import. There is perhaps no general or useful rule to be extracted from the cases. The intent of the testator being
In this case the language of the testator is so explicit that no question can be raised as to the intent of survivorship. The estate must remain in the survivors till the whole vest in the last, before it goes over, and after his death, is then distributed among the descendants. The postponement of the severance and distribution till that probably remote event, was a primary object, obviously the most prominent in the mind of the testator. The scheme as well as the language of the will, favors the conclusion that it was the design of the testator to keep the estate together; and that it should be held in the nature of a joint tenancy. The whole fund is placed in the hands of the nephews and nieces, with one exception, to be jointly managed during the trust term.' They are the persons who are entitled to the enjoyment of the income that arises out of the joint estate, and the expenses and disbursements are to be first deducted, and annuities paid before any distribution is to be made. No such division among themselves is contemplated till then. It is the “ residue” of the rents and profits that is to be paid among them, the survivors and survivor. The words “equally to be divided,” “ share and share alike,” have no application or effect, from the express terms of the will, till the income is supposed to be collected, and the annual charges upon it satisfied. A provision that the share of each should bear an equal proportion of these charges, would have been a natural one, if the idea of a several estate had existed in the mind of the testator. A distribution of this
I have come to this conclusion without overlooking the 44th section of the first article, and intend to admit its application as one of the rules concerning legal estates referred to, and to be regarded when determining the nature of the estate in the trust. By that section, every estate granted or devised to two or more persons in their own right, shall be a tenancy in common, unless expressly declared to be in joint tenancy. Now if my construction given to the language of the will be correct, according to the intent of the testator, a joint tenancy has been expressly declared. The words joint tenancy need not be used in order to create the estate; any other expression clearly importing such an intent must be sufficient. The statute did not mean to establish a mere verbal distinction. Before its enactment, as has already appeared, a grant or devise to two or more, without any other words, created a joint tenancy. It has reversed the rule by declaring the estate shall be a tenancy in common. This is the whole amount of the provision. If there be other words in the instrument, which, upon a legal construction, necessarily create an estate in joint tenancy, the statutory inference is rebutted. A joint estate is then expressly declared by the grantor or devisor, within this section.
But it is said there is another mode of carrying into effect the intent of the testator as to survivorship, compatible with the idea of a severance of the estate between the twelve, i. e. by a tenancy in common, with cross remainders. It will be necessary, therefore, to examine briefly this doctrine. Until the case of Perry v. White, decided 1778, Cooper, 777, the law was understood to be, that cross remainders could not be raised by implication between more than two persons ; and it had been frequently so decided. In that case Lord Mansfield hold, that wherever cross remainders are to be raised by implication between two and no more, the presumption is in favor of cross remainders ; - where they are to be raised between more than two, there the presumption is against them. But that presumption may be answered by circumstances of plain and manifest intention either way. This, he said, was a qualifi
I have examined many cases in the books involving a consideration' of this complicated doctrine, and will not say that none can be found, but none were cited, nor have any come within my researches, where the devisees took an estate, as a class, to them and the survivors and survivor, in terms cutting off the heirs till the death of the last survivor, in which cross remainders were implied, to fulfil the intent of the will. There are many cases to be found, some of which have already been referred to, where this has been done, by considering the devisees as holding in joint tenancy. This answers all the purposes intended.
Where an estate is given to two or more, and their heirs, and the survivor of them, and in default of such heirs then over, cross remainders are necessarily implied, to carry out the intent of the will. As the estate was not to go over till all the descendants of the devisees became extinct, in order to carry it on, throughout perhaps numerous branches of the families in the line of descent, before their blood became extinct, this complex doctrine was devised. Phipard v. Mansfield, Cowp. 797. Alberton v. Pie, 4 T. R. 710. Watson v. Fox, 2 East, 36. Roe v. Clayton, 6 East, 628. 1 Saund. 180, n. 6. It will undoubtedly perform that office, however multiplied the descendants or the branches, as cross remainders may now be raised between any number ; but it is apparent the application of the rule in the case of a long line of descent and numerous progeny, must be appalling, and may be out of the reach of human capacity. The power of mathematics would fail to trace or comprehend the practical operation or result..
Without pursuing this branch of the examination further, it appears well settled that cross-remainders are never raised by implication, unless upon the plain and manifest intent of
If I could have arrived at the conclusion that the testator intended to sever the interest of the nephews and nieces, and thereby create a tenancy in common, giving to each an estate in severalty for life, it is possible that under the rule of approximation in the construction of wills, the validity of the trust term for the life estates might be maintained. I must confess, however, I am not prepared to concede the position. I do not intend to examine it, but will state some of the difficulties. This qualified execution of the will grows out of the disposition of courts to carry into effect the intent of the testator, as far as consistent with the rules of law. The general principle is, that in construing wills according to such
I have no difficulty in conceding, if the trust term had been valid in this case, and the ultimate remainder over void, that under the rule of approximation, the term would have been sustained. The cases of Spencer v. Duke of Marlborough, 5 Bro. P. C. 572, Humberston v. Humberston, 1 P. Wms. 332, Chapman v. Brown, 3 Burr. 1626, Pitt v. Jackson, 2 Bro. C. C. 31, and others, would have afforded abundant authority.
I put the case however, for myself, upon the broad ground that, according to the language of the will, when tested by established rules of construction, and also upon adjudged cases so far as they are applicable, the twelve took an estate in the nature of a joint tenancy, and, therefore, to be held by them and the survivor of them for twelve lives; that under the 63d section it was inalienable during that period, so far as their interest was concerned; and as to the interest of the trustees, not alienable at all under the 65th section; and that the power of alienation was suspended for more than two lives in being, to wit, for twelve lives at the creation of the estate, and therefore a violation of the 15th section.
If the trust term is to be deemed an estate in the nature of a joint tenancy, it is an entirety—but one estate. The interest the twelve hold in it, is one and the same ; and under no rule of construction that I have been able to find, can it be split up for the purpose of carrying into effect the intent of the testator. If we could cut it down to a joint estate for two, instead of twelve lives, upon legal principles, and thereby bring it within the limitation of the perpetuities ah lowed by law, I do not know but I should be willing so to modify it. As before said, this would approximate nearer to the intention of the testator than any other proposed alteration. But after a diligent inquiry, I have not been able to satisfy myself that there is any principle or decision that would authorize such an interference. It would be arbitrary, and establish a precedent for courts, not to construe wills according to the intent of the testator as derived from a consideration of the language used to express it; but to make a will for him, such an one as we undertake to presume he would have made, if advised that his own was void as against law. This 1 cannot consent to do. Better that the intent of a testator should fail, in a particular case, than that the court should assume such arbitrary and undefined discretion over his estate. If we cannot execute the whole will, or some distinct and independent intent, the whole had better be declared void. The law
1. That the trust in this case comes within the third subdivision of the 55th section.
2. That the interest of the cestuis que trust is in the nature of a joint tenancy for twelve lives, and that the power of alienation is suspended during that time by the 6th section, which is in violation of the 15th, limiting perpetuities.
3. That the estate in joint tenancy, being an entirety, the twelve nephews and nieces having but one estate in the whole, cannot be reduced to the limitation of two lives within the 15th section, and the trust term is therefore altogether void.
4. That cross-remainders between the nephews and nieces are not expressly declared in the will, and cannot be implied: every intent being so clearly declared that nothing is left to implication.
5. That if the estate of the twelve nephews and nieces could be considered in the nature of a tenancy in common
1 am therefore in favor of reversing the decree of his honor the chancellor, and of the vice chancellor.
The different devises and bequests in this will, including the ultimate remainder over, are valid at common law; and it has been very elaborately and learnedly argued that the Revised Statutes do not affect or control the provisions in this will, except so far as to render null and void the ultimate remainder over. I agree with the chancellor in the opinion, and for the reasons by him given, and by the chief justice more fully detailed, that the remainder over is void. The vice chancellor, before whom the cause was first argued, has considered the cestuis que trust as joint tenants, and the trusts in the will as valid and legal. The chancellor, on the appeal from the vice chancellor, considers the cestuis que trust as tenants in common, with cross-remainders, and decides that the trusts in the will cannot be fully carried into effect by reason of the provisions of the Revised Statutes, and reverses the decree of the vice chancellor. When judges of such learning and ability, after devoting to the case all their mental energies, in patient investigation and labored research, have been unable to harmonize in their views and opinions on this will, it cannot well be expected that those of more humble pretensions should be able to form an opinion which will meet with general satisfaction. After bestowing upon this case much anxious labor and deliberation, I am reluctantly compelled to disagree with both.
The first section of the article on uses and trusts, 1 R. S. 727, § 45, declares, that “ uses and trusts, except as authorized, and modified in this article, are abolished.” The reasons which induced the legislature to adopt this provision, are ably and eloquently set forth in the revisers’ notes ; they were to
The 55th section, page 728, declares that express trusts may be created for four specified purposes : 1. To sell lands for the benefit of creditors ; 2. To sell, mortgage, or lease lands for the benefit of legatees, or for the purpose of satisfying any charge thereon; 3. To receive the rents and profits of land, and apply them to the use of any person during the life of such person, or for any shorter term, subject to the rules prescribed in the first article of that title; and 4. To receive the rents and profits of lands, and to accumulate the same for the purposes and within the limits prescribed in the first title of that article. It is contended, that the 3d subdivision of this section is authoritative of the trust in this will, and gives to it legal vitality. Although the section seems to authorize a trust to receive rents and profits to be applied to the use of only one person during his life, yet by the act of the legislature, 2 R, S. 778, § 11, it may be read so as to authorize the creation of a trust, to receive rents and profits to be applied to the use of persons during the lives of such persons. Now, what was the object of the legislature in adopting this 55th section ? The object is lucidly set forth by the revisers in their notes, and the vice chancellor and chancellor both agree in opinion with the revisers, that the grand, prominent and unquestionable object of the legislature was to enable persons by devise or deed to make provision for the helpless and infirm; for married women, whose husbands may be deemed unfit to be trusted with the management of property; for dissolute and improvident persons, spendthrifts, whose wasteful and profligate habits render it necessary that the fund intended for their support should be beyond their reach or control. This object is also apparent
I am not to be understood as going so far as to say, that no express trust can be created under any circumstances, unless there be in the trustee plenary and uncontrolled discretion in paying to ilia use of the cestui que trust such sums at such times as he shall see fit; for it is apparent that if the devisor or grant- or, create a trust to pay the cestui que trust, a certain specified sum, there the trustee has no discretion in paying or withholding such sum; the duty is imperative ; he must pay as. directed, and this for a very sensible reason, that in the direction to pay a specified sum, the creator of the trust recognizes the ability of the cestui que trust to dispose of such sum to his
But there is another objection to the validity of this trust: it effectually suspends the power of alienation for more than two lives in bein'g. The object of the testator, as appears from the whole will, is to tie up this estate for twelve livesf and for two years thereafter. There can be no question of this; for, after the expiration of the twelve lives, he directs a fair and just division and distribution of his estate, but no such division and distribution shall take place until two years after the decease of all his nephews and nieces. If this trust could be deemed a valid trust, as the testator intended it should be, the whole legal and equitable estate, by the 60th section, is in the trustees, subject only to the execution of the trust; and the cestuis que trust have no estate or interest in the lands, having only a mere naked right to enforce the performance of the trust in equity; and by the 65th section, the trustees cannot sell the trust estate, in contravention of the trust. There is then an absolute statutory prohibition to sell, during the lives of these twelve nephews and nieces, and during these lives the power of alienation is absolutely suspended.
The object of the revisers and of the legislature in these enactments, was to abridge the then existing power of rendering real estate inalienable. The revisers, in their notes, state the difference between the sections by them proposed for adoption and which were adopted, and the then existing law, to consist in the following particulars: “ I. Alienation cannot be protracted by means of mere nominees, unconnected with the estate beyond the period of two lives ; 2. No more than two successive estates for life can be created; and 3. The period of twenty-one years after a life or lives in being is no longer allowed as an absolute term ; but the rule is restored to its original object, by being confined to the case of actual infancy, which is directly provided for, by rendering thedis
It is however urged upon our consideration, that the power of alienation is not suspended, because there are persons in being who can, by uniting, convey a fee; the remainder over being deemed void, the reversion is in the heirs, and the heirs, cestuis que trust and trustees together, can convey a fee—and that, although the trustees cannot sell in contravention of the trust, yet they can sell subject to the trust. There might be some plausibility in the arguments ably and ingeniously urged on this branch of the case, were it not for the fact that any sale or conveyance of the estate, would be in direct contravention of the trust; all the rents and profits of this estate are disposed of by the trust; every fraction which can be produced from the land is appropriated to the use of the cestuis que trust; not a foot of this estate can be sold, unless in contravention of the trust. But it is said a sale can be made, not in' contravention, but subject to the trust. I must be excused in saying that this appears to me quite absurd. Who would purchase any part of this estate, where the purchaser could not be permitted to en
The legislature, in carrying out their plan as to the alienability of estates, have, with proper caution, restricted the power of creating trusts of the rents and profits of land, and have subjected them to the same rules as control the disposition of estates, so far forth as relates to the creation and continuation of the trust; aware that a full disposition of all the rents and profits was tantamount to an absolute control of the fee. The interests of the cestuis que trust have been considered, upon the argument, what in fact they are not, estates. The cestuis que trust have been considered as the persons holding an intermediate or precedent estate, the remainder being limited to the grand-nephews and nieces, and their children. It is unnecessary, from the view I have taken of this case, to examine with much minuteness or particularity, what kind of
But again : The trust in this will is not authorized or sanctioned by any of the provisions of section 53. The power given to the trustees is an unlimited power, except that of conveying and appropriating the rents otherwise than directed in the will; they are empowered to improve and manage the estate. I know not what the trustee could not do with this estate, under the head of improvment; any thing, every
It is. however, contended, that if the trusts in this will cannot be directly carried into effect by reason of the provisions, of the statute,and are to be deemed illegal orinvalid trusts,yet they can be indirectly carried into full effect under section 58. That section declares, that where an express trust shall be created for any purpose not enumerated in the preceding sections,no estate shall exist in the trustees, but the trust, if directing or authorizing the performance of any act which may be lawfully performed under <zjpotoe?’,shall be valid as a power in
It is contended that the provisions of this will can, in part, be carried into effect, and that the courts are required to do so: the statute, 1 R. S. 708, § 2, declaring that “in the construction of every instrument creating or conveying, or authorizing the creation or conveyance of any estate, or interest in lands, it shall be the duty of courts of justice to carry into effect the intent of the parties, so far as such intent can be collected from the whole instrument, and is consistent with the rules of law.” This has always been the rule in relation to the construction of wills. The object of this provision is to place deeds
As to the annuities; The trust as to the annuitants, in my judgments must be on the same footing as the trust in behalf of the nephews and nieces. The annuitants are in fact cestuis que trust to every purpose, except that they are not prohibited from selling their interest. They receive a sum in gross annually, and are allowed by the 63d section to assign the same, and this upon the basis that they are deemed competent to take care of and manage to their best interests, the sums given them 5 a suppposition which does not legally exist in regard to the cestuis que trust, for whom unlimited provision is made in this will, and who are consequently expressly prohibited by the 63d section, from disposing of their interests in any manner; nevertheless, these annuitants are under this will to he deemed as cestuis que trust. The will gives the legal estate to the trustees, in trust to pay these annuitants out of the rents and profits the sums given to them respectively, and what shall thereafter remain to be divided and paid to the twelve nephews and nieces; and the payment of these annuities are to be enforced in the same manner as the other trusts. They are to continue during the respective natural lives of the annuitants, or until the death of all the 'children of the testator’s brothers,Blaze, Peter and Jacob. An annuity, it is true, does not directly affect the alienability of the land charged, unless the sum total of the annuities exceed the annual rents and profits, which the land might produce during the continuance of the annuities, any more than a mortgage or judgment thereon. But annuities should not be chargeable on land for a longer period than two lives in being, if the rule is intended to be preserved inviolate throughout, that the power of alienation shall not be suspended by any condition whatever, for a longer period than two lives, unless the amount of the annuities in relation to the value of the land shall be fixed by law; the allowance of annuities to any amount, for any number of lives, out of the rents and profits of land, would in effect be giving to the creators of them a power to lock up the alienability of the lands for an indefinite period, in defiance of the law prohibiting the suspension of the power of alienation. A mean of setting
This is the first cause, under one branch of the Revised Statutes, which has been removed to the court of last resort; and it being, in all probability, the pioneer to many others, it is of great moment that the principles it involves should be maturely considered. The disposition of a large estate, amounting, as is stated by the chancellor, to three millions of dollars ; the rents and profits of this estate, already producing annually between eighty and ninety thousand dollars, and the rights and interests of a considerable number of respectable individuals, will be more or less affected by the decision. But when it is considered, that as a people, we are yet in an infant state; that time will constantly unfold and multiply new elements of wealth ; that acquisitions of large estates by individual industry and enterprise will probably be commensurate with the future increase of population, and the continual development of new resources—the amount in controversy, together with the number and respectability of the claimants, is wholly merged in more important considerations. The adjudication now to be made will throw its influence into the future for good or for evil; it will stand as a land mark for those who come after us and will probably control the disposition of an amount of property, and the rights of a number of individuals beyond the reach of computation or conjecture.
The provisions contained in the will of George Lorillard, which have given rise to this appeal, are sufficiently detailed by the vice chancellor of .the first circuit, and also by, the chancellor, in their respective decrees, and in the opinions
Are the difficulties and applications with which this cause from the beginning has been shrouded, intrinsic or artificial? Do they result from a conflict between the common law and the statute; from the impossibility of defining the respective boundaries of each, of ascertaining where the one terminates and the other commences its operation ? These are questions which naturally force themselves upon the mind. In an English court of common law, the will under consideration would present very little, if any difficulty. All its provisions would receive a judicial sanction. In the examination which I have given to this cause, I have come to the conclusion that its decision must be wholly controlled by the Revised Statutes; that the common law, in reference to real property, to its tenure and transmission, with all their incidents, is wholly abolished. To elucidate the opinion I have formed, some preliminary observations respecting the old law, the mischief and the remedy, will be necessary. It is highly proper, in such a cause, to advert to first princi
The rules of the common law also authorize the exclusion of real property from alienation, for a much longer period than is consistent with the interests of society. The absolute ownership in property, of him who uses or possesses it, is indispensable to secure the greatest degree of care in its preservation and improvement. If, for instance, all the real property in this state, was in the occupancy of individuals who were merely to collect and enjoy the rents and profits for twelve lives in being, and then to surrender it to others, such an arrangement would impede the accumulation of wealth, ob
The progress of knowledge and civilization is however greatly in advance of the institutions of that country; and it is perhaps safe to predict that ten years more will see the feudal tenures entirely abolished. The ruggedness of their ancient features has been from time to time relaxed; but it has always been a striking characteristic of the common law, that, encumbered with its ponderous train of complicated ma
One of the Roman tyrants has excited the detestation of mankind, for having caused the laws to be written in such small characters, and placed so high upon pillars that they were not legible ; nor is a milder censure due to the revisers and the legislature, if they have subjected us to the doable complication of statutory and common law regulations ; for there is no difference in principle, whether, laws are incapable of being read, or, when read, of being understood by the mass of mankind, for whose benefit laws should be enacted. But this is not the case. One of the leading objects of the revision was to disenthral the community from the common law, in relation to every rule respecting the tenure and transmission of property. These rules favored trusts and uses, which were incompatible with our institutions. They authorized testamentary accumulations of property, without any other obvious design than to gratify human vanity; they sanctioned trusts for longer periods of years, so that the rich man could throw over posterity the dark shadow of his accumulated wealth. They permitted any amount of the great capital of the community (which is composed of the aggregate wealth of all) to be diverted from the business purposes of life—to be dragged from the prolific stream of alienation, and lashed to sterile rocks upon the shore. These were the evils of the old system, which it was the object of the legislature to remedy; and if the obvious intent of the statute is not perverted, the remedy will be found to be complete. To understand the statute, it is only necessary to know the meaning of the words which are used ; and definitions are often given in the statute. All uses and trusts, of every description, which might have been created previous to the revision, are wholly abolished. See sec. 45, 46, 47, 48, 49. The language of these sections is so strong against the creation of any trusts whatever, that the legislature deemed it necessary to introduce a quali
The power given by the Revised Statutes to accomplish the third purpose, is, to appoint trustees " to receive the rents and profits of lands, and apply them to the education and support, or either, of any person, during the life of such person, or for any shorter term, subject to the rales prescribed in the first article of this title.” This is the language of the Revised Statutes. But afier they were printed, and their several provisions more minutely and carefully examined, it was perceived that this clause would authorized rents and profits to be applied for the education of a person, during the life of such person 1 and as education is usually bestowed only during the period of minority, and as infants were amply provided for in other parts of the statute, an amendment was made by which the words education and support, or either,” were stricken out, and the word “ use” substituted in their stead. But what cause induced the legislature to authorize the creation of the third class of trusts! What necessities could it subserve ! What class of individuals need the aid of trustees to deal out to them, from time to time, for their support for life or a shorter term, or, in other words, to apply to their use the rents and profits of land ! The greatest part of mankind would feel themselves degraded by being placed in such a situation ; by being excluded from all control over property, the rents and profits of which were dealt out to them by others for their support, and by being inhibited also from assigning or in any mannér disposing of their interest in such rents and profits. It is apparent, then, that it was not intended by the legislature that trusts of this description should be created to sub-
If these principles are applied to the will in question, it will be perceived that the trusts attempted to be created by the testator are wholly invalid. He appoints his twelve nephews and nieces trustees, together with Jacob Lorillard; and after-wards constitutes the same twelve nephews and nieces the beneficiaries of the trust. This junction in the same individuals of the character of trustee and beneficiary is wholly incompatible with the provisions of the statute. Beside this, the testator, in direct contravention of the statute, authorizes the beneficiaries to assign and sell their right to the rents and profits, provided a majority of them, not to be less than three,
But there are other provisions of the will which require examination. The testator devises and bequeaths all his estate teal and personal to the thirteen “trustees, and to the survivors of them, their heirs and assigns forever, as joint tenants and not as tenants in common, in trust,” &c„ The 44th section of the Revised Statutes, vol. 1, p. 121, enacts, that " every estate granted or devised to two or more persons, in their own right, shall be a tenancy in common, unless expressly declared to be a joint tenancy; but every estate vested in executors or trustees as such, shall be held by them in joint tenancy.” Now if it could be pretended that the testator devised his estate to the thirteen trustees “ in their own right,” still it would be held by them in joint tenancy, because, in the language of the statute, it is “ expressly declared to be a joint tenancy” by the testator himself, and not a tenancy in common. But this pretence neither has been nor can be made. The estate is granted to thirteen trustees “ as such” in trust, and the statute declares that “every estate vested in executors or trustees as such, shall be held by them in joint tenancy. It is impossible therefore to make the estate which is vested in the trustees a tenancy in common, without both revoking this part of the will and repealing the statute. If it is a valid trust, the statute vests indefeasibly in the trustees all the “ estate legal and equitable and the trust created in the will, is, that the trustees shall hold and manage the estate thus vested in them, in joint tenancy, for twelve lives, and pay over the rents and profits to the twelve beneficiaries and to the survivors and sur
But there is another view of the question which has not yet been considered, and which it is believed is also entirely decisive. The will directs the z’ents and pz-ofits to be paid to .the beneficiaries for twelve lives in being; and that the trustees shall not alien the estate duz’ing that pei’iod. The 14th .section of the statute enacts that “ every futuz-e estate shall be void in its creation, which shall suspend the absolute power of alienation fora longer period than is prescribed in this article.”
To substitute portions of a will for the whole, where these portions are connected with the general intent of a testator, and which general intent is unauthorized by law, would lead to dangerous results. The will in all such cases would be changed into an instrument very different from what the testator designed. It would not be his will but the will of the court. Nor is there any reason under our system of laws for such metamorphoses; but there are very strong reasons against such a course. Our rule of descent follows the law of nature, and gives the property of an intestate in equal shares to those in whose veins equal portions of blood flows. This is not only in accordance with the dictates of humanity, but is also in conformity with that spirit of equality which pervades our institutions. Human ingenuity cannot devise a more equal, humane and natural disposition of property, than is prescribed in the Revised Statutes; and with equal truth it may be said that none was ever adopted, in any age or country, which is more heartless and partial than that of the common law. Our laws, however, authorize any individual within certain limits, to make such disposition of his property as he pleases. He may overlook all his relatives and bestow his wealth upon a stranger; or he may give the whole to a favorite child in exclusion of the rest. Actuated by vanity or whim, he may make the most capricious and unnatural distribution of his property ; and if his will does not transcend the provisions of the law, it is binding upon all courts of justice, and must be carried into effect. English courts have strug
After the very elaborate opinions that have been already pronounced by several membe.s of the court, I shall withhold any detailed expression of my views of this caso; and I am especially induced to do so, because I concur essentially in most of the general propositions advanced by the chief justice; many of which, indeed, do not differ materially from those contained in the opinion of the chancellor. In following out, however, the views of the chief justice in respect to the illegality of the trust, so far as it applies to future or contingent estates in the cestuis que trust, I find myself differing from him wholly in regard to the validity of their present estate. This difference arises, I perceive, upon the construction that should be given to the third division of the 55th section. Admitting that the estate of the grand-nephews and nieces is a future estate, suspending the power of alienation for a longer period than the law allows, and that the trust otherwise is contrary to the policy and provisions of the Revised Statutes, in so far as it proposes to secure to the twelve nephews and nieces a successive interest to be continued for the life of the longest liver; still the question arises, can it not be maintained under the 55th section as a valid trust for one-twelfth of the rents and profits, to each of the
The senator resists the conclusion by denying that since the Revised Statutes the doctrine of cypres can be allowed in any cases whatever, and maintains if any part of the will is ineffectual, the whole of it must fail—on the principle that if the whole intent of the testator cannot be sustained, it is impossible to know that he would have wished any part of it to be carried into effect—in short, that, a whole will is to be regarded as a single intent, and not capable of containing distinct and independent intents. I shall not discuss this proposition, hut content myself with saying that I find nothing in the Revised Statutes to justify the notion, that the construction to be given to wills or other instruments is different in this respect from what it was previously to their adoption.
The Chief Justice’s idea is, that the third division of the 55th section, authorizing the creation of a trust “to receive the rents and profits of lands, and apply them to the use of any person during the life of such person,” does not authorize a trust to receive rents and profits and pay them over to another, but- only to apply them ; that is, to expend them for the benefit of another, in such manner and to such extent as the trustee from time to time may be disposed. This, I am persuaded, is too narrow a construction of the provision. It is the very construction against which I think the legislature intended to guard, when, immediately after the adoption of the Revised Statutes, they changed the language from the original into its present form.. If this construction be adopted, it evidently would destroy many trusts which, on every consideration of nature, policy and justice, should be sustained. It would defeat a provision for a married daughter, intended to be protected from the unthriftiness or profligacy of her husband, or any annuity to a relation, charged on the rents and profits of the testator’s estate ; for whether a trustee was expressly named, or the heir at law, or a general devisee was made trustee by implication, would be the same thing. Be
If this he so, it follows that if the testator had divided his property into twelve parts, and created a trust of the rents and profits of each twelfth, for the use of each of his twelve nephews and nieces, during his or her life, that they would have been valid trusts under the 55th section equally, whether the trustees for the several cestuis que trust were the same or different persons. And it cannot be doubted, I think, that trusts in favor of different persons may be charged on the same fund ; and therefore that the testator was not required to divide his property in order to charge it with trusts in favor of different persons; but might content himself with directing the rents and profits to be divided as they accrued, and to be distributed, in such portions as he chose, among the several object of his bounty. This is an every-day occurrence, the legality of which was never before brought into question; and it is in fact the precise thing which the testator in the present case has done, in respect to the rents and profits of his estate during the lives of all his twelve nephews and nieces. The direction of his will is explicit and undisputed, that the income, rents and profits of his real estate in the city of New-York, should be divided equally, share and share alike, between his twelve nephews and nieces, so long as the whole
On the question being put, Shall this decree he reversed? all the members of the court voted in the affirmative; whereupon the following decree was directed to be entered:
The cause having been heard, &c. it is ordered, adjudged, declared and decreed, that the devise and bequest of all the estate, real and personal, whatsoever and wheresover, of
It is further ordered, adjudged, declared and decreed, that the proceeds of the real estate, directed by the first article of the said codicil to be paid by Peter Lorillard, junior, to the said trustees, in case he elect to take the said real estate therein devised to him, and the said real estate, in case he shall not elect to take the same, together with the rents, income and profits thereof, are subject to the same disposition as is herein before directed and declared in relation to the other parts of the real or personal estate, as the case may be, of the testator, devised to the trustees; and that the.remainder in fee in the farm or land, devised by the second article of said codicil for life to George Lorillard, grandson of Blaze Lorillard. the late brother of the testator, and the remainder in fee in the farm or land, devised by the fourth article of said codicil for life to Blaze Lorillard, also grandson of the testator’s said late brother, and also the remainder in fee in the lands, farms and mills devised by the seventh article of said codicil to Maria R„ Bartow for life, together with the life estates of the -se;>
It is further ordered, adjudged and decreed, that the said trustees shall not be liable for any act done or any expenditure incurred by them in good faith, in discharge of their duties as pointed out in and by said will and codicil, so far as relates to the management of the estate; but this is not to affect the right of the heirs and next of kin, to recover what may have been received by any of the annuitants or devisees, contrary to the rights of the parties as established by this decree.
It is further ordered, adjudged and decreed, that the costs of all the parties in the original suit, as well as upon the several appeals, be paid out of the funds in the hands of the said executors, as shall be just and equitable.
And it is further ordered, adjudged and decreed, that so much of the decree of the Chancellor as declares the ultimate remainder in fee to the grand-nephews and nieces absolutely void, and so much of the said decree as declares void the devise of the one-sixteenth part of the income of the estate of the testator to each of his grand-nephews and nieces who shall act as trustees,.are hereby affirmed, and that the decree of the vice chancellor made in this cause, and so much of the decree of the chancellor made therein as is inconsistent with this decree, including that part of the chancellor’s decree which directs a reference to a master to settle the form of conveyances to be taken by the executors and trustees, be, and the same are hereby reversed and annulled; and further, that the cause be remitted to the court of chancery, to the end that such proceedings may be had in that court as may be neces
The members of the court divided on the insertion of the words in italics declaring void the life estates. The vote stood as follows : In favor of the insertion of this clause, Senators Beckwith, Cropsey, Downing, Fisk,, Fox, Griffin, Halsey, Lacy, Loomis, Mack, Maison, Van Schaick, Willes, Young—14. Against the insertion of the clause, the President of the Senate, the Chief Justice, Mr. Justice Nelson, and Senators Beardsley," Gansevoort, Hubbard, Jones, Lansing, Macdonald, Tracy—10. With this exception, the decree was unanimously adopted.