7 Paige Ch. 221 | New York Court of Chancery | 1838
Some questions embraced in the pleadings and points of the parties, before the vice chancellor, were not finally disposed of by the decree ; but as there is no appeal on that ground, and the decree reserves the right to the parties to apply for further directions as to any matters not disposed of by the decree, they cannot be taken into consideration at this time. And as none of the parties have appealed from that part of the decree which declares the validity of the legacy of $30,000, to the widow and son of the testator upon an undefined and secret trust, the question cannot now be raised whether such a limitation of personal property in trust is valid, under the provisions of the revised statutes relative to the accumulation of personal property and to expectant estates in such property. (1 R. S. 773, § 1, 2.) It is also proper to remark that some parts of the appeals embrace matters in which the appellants have no interest, either as trustees or otherwise, in having those parts of the decree reversed ; and where parties to the suit who are the only parties aggrieved, if the decree is erroneous in those respects, have not thought proper to complain thereof. Those parts of the decree cannot be reversed upon these appeals, even if I should arrive at the conclusion that the decision of the vice chancellor was wrong in respect to the matters in which these appellants have no interest in reversing the decree. For it is well settled that no person is authorized to appeal from a decree unless he is aggrieved by it. And that a party who is aggrieved by one part of a decree only, cannot by appeal call in question another part of the decree in which he is not interested. (Cuyler v. Moreland, 6 Paige’s Rep. 273. Idley v. Bowen, 11 Wend. Rep. 227.)
As to the most important questions in this cause, which arise upon the appeals of the complainants and of Eliza Hone and her minor daughter, from that part of the decree
As the widow and the niece of the testator have not appealed from that part of the decree which declares that the annuities to them,and which are payable out of the fund directed by the testator to be created out of the rents and profits of the real and personal estate, are void, it is probably unnecessary that I should consider the question whether such annuities can be charged upon the personal estate .not otherwise legally disposed of by the will. I think however they must fail on the ground that they were not intended by the testator to be charged upon his estate generally, but only upon the particular fund which has failed by reason of the illegality of the direction for its creation. So far as respects the annuity to the widow in lieu of her dower, it cannot be charged upon the personal estate generally, for another reason. As her annuity was payable out of the income of the estate and not out of the principal thereof, it would be wholly inconsistent with the intention of the testator to give to her the one third of such principal of the personal estate, as property not legally disposed of, and at the same time to give her the annuity which by the will was payable out of the income of the same property as a part of the trust fund. This disposes of the appeals from the decision of the vice chancellor contained ¡ in the fifth clause of the decree, even if the present appellants were the proper parties to appeal therefrom and had an interest in the reversal of that part of the decree.
I can see no possible objection to the sixth clause of the decree, which declares the devise of the mansion house, and the bequest of the furniture, books, plate, and carriages and horses to the widow-to be valid; subject to her right of election to recieve them in lieu of her dower in the real estate. These specific devises and bequests are in no way connected with the illegal trusts and limitations, in .the will. And
The provision in the decree for a reference to a master to take and pass the accounts of the executors, with a view to the distribution of the personal estate of the testator, not legally disposed of by his will, among the next of kin of the decedent, was but a necessary consequence of the decision that the trusts of the will and the interests limited upon the trust term were invalid ; as by the provisions of the revised statutes in relation to the limitations of interests in personal estate, the absolute ownership thereof cannot be suspended by any limitation or condition whatever for a longer period than the power of alienation of real estate can be suspended. And in all other respects limitations of future or contingent interests in personal estate are subject to the same rules which are prescribed by the revised statutes in relation to future estates in lands. (1 R. S. 761, tit. 4.) Dispositions of the rents and profits of land to accrue and be received subsequent to the execution of the instrument creating such dispositions thereof are considered as future estates and interests, and are subject to the rules established by the revised statutes in relation to other future estates in lands. (1 R. S. 726, § 36.) And in analogy to this provision relative to the rents and profits of lands, a bequest of the interest or income of personal estate, to accrue and be received after the death of the testator, is a limitation of a
Being satisfied that there is no valid objection to this part of the decree, it only remains for me to consider the question whether the vice chancellor was right in that part of the decree which is appealed from by Van Schaick and others. The several legacies of $6000 each, to the grandchildren of the testator, are not payable out of the interest or income of the property, but are directed to be paid out of the personal property generally. They are no part of the trust fund devised and bequeathed to the executors upon the special trust mentioned in the will. They are therefore to be raised out of the personal estate in the hands of the complainants in the character of personal representatives of the testator merely', and not by virtue of any special trust. And the amount of each legacy, if valid, must be raised out of personal estate, and be securely invested for the legatee until it becomes payable according to the terms of