3 Barb. 243 | N.Y. Sup. Ct. | 1848
By the Court,
It was held by the assistant vice chancellor that Mrs. Cairns took a life estate in trust, under the will, which, under our statutes, is inalienable; and there
I think, however, that there is no trust created by the devise to Mrs. Cairns. She takes the estate not in trust for the children named in connection with the devise, but charged with their support. Her interest is alienable, subject to the charge. And the life estate of Mrs. Rapelye being also alienable, neither of these devises suspend the power of alienation. (Richards v. Merrill, 13 Pick. 408. Simonds v. Simonds, 3 Metcalf, 558.) The 8th clause of the will indeed appoints Mrs. Cairns “ trustee of the property devised to the children,” but this language, and the design evinced by it, are satisfied by applying it to legacies given absolutely to them by the 4th clause of the will. But conceding the decision of the vice chancellor to have been correct upon the points above referred to, the bequest to Ellen Eliza Smith of $50,000 is valid, although it was contingent, to vest upon her arriving at the age of twenty-one years. The absolute ownership of personal property cannot be suspended for a longer period than the continuance of not more than two lives in being at the death of the testator. (1 R. S. 773, § 1.) The argument of the respondents is, that the legacy, vesting only on the contingency of the arrival of the legatee at the age of twenty-one years, the absolute ownership is suspended during her minority, in addition to the period of the two. lives of Mrs. Rapelye and Mrs. Cairns, and is therefore void. The term “ suspense of absolute ownership,” applied to personal property, means the same thing as “ suspense of the power of
Another view of the case is given by the late learned chancellor, who, upon the decision of an interlocutory motion in this cause, had occasion to give his opinion upon the validity of this $>50,000 legacy. He concludes that the legacy is to be regarded as a sum carved out of the estate, and set apart to be paid to Ellen Eliza Smith in case she arrives at age; and that it does not pass, and is not operated upon, by the devises to the
He also claims as next of kin to the testator; thus in effect resting his claim upon the invalidity of the 9th clause in the will. But the testimony shows his relationship to the testator to be too remote to enable him to take under the statute of distributions. And he clearly can have no interest in the personal estate, unless it is derived under this 9th clause — -which, by his position in his bill, he virtually repudiates. Here again the examination might perhaps with propriety be suspended. But, as the question would be left open for further controversy in other suits, it may be well to look at the rights of the parties, as presented by the will itself. This inquiry will involve a construction of the residuary devise to Ellen Eliza Smith. -
It was contended by one of the counsel for the respondents, that the effect of the 6th clause of the will was to give her only a life estate in the residuum of the testator’s property. His view of the question cannot be sustained, and so the other counsel on the same side admitted. She took a fee of some kind, and the only difficulty in the case consists in determining its character. This- is to be ascertained by reference to the statutes relating to realty. And I shall, for convenience, adopt the course of the counsel on the argument, and speak of the case as though an interest in land were the matter in controversy. The appellants contend that as the law stood prior to our statute abolishing entails, the 6th clause of the will would have created ah estate tail in Ellen Eliza Smith and the heirs of her body; and there being no valid remainder limited upon it, an absolute fee vests in the devisee. On the other side it is contended that she took a fee, defeasible on her dying without
The contingent expectant interest of the plaintiff, (if he have any,) either as heir of the testator or as ulterior remainderman under the ninth clause of the will, is also made alienable by the statute, and a release from him and the others standing in the same position, would vest a present fee absolute in Ellen Eliza Smith. The persons who must take this contingent remainder in case it should ever be effectuated, must be ascertained at the death of the testator. (Moon v. Lyon, 25 Wend. 119.) They, uniting with Ellen Eliza Smith in a grant, would convey an absolute fee vesting immediately in interest, and on the death of the two tenants for life, in possession. (Prest. on Estates, 479, 484.) The 6th clause of the will does not therefore incumber the estate with any suspense of the' power of alienation, or, in other words, as applicable to this case, the absolute ownership is not suspended by that clause.
Without holding the 9th clause of the will valid, there is no pretence whatever for allowing a decree for an inventory. Upon this question the counsel for the respondents themselves differed ; one admitting it to be void, the othór insisting it was good. The counsel for certain defendants having the same interest as the respondents, admitted that he had been unable to form an opinion on the point satisfactory to himself. Under such circumstances, I think the court may be excused for not deciding the point, if the case can properly be disposed of without doing so. But I confess that I am unable to see why it
The decree should be reversed, and the bill be dismissed with costs in both courts.