Hone's Executors v. Van Schaick, 20 Wend. 564

Hone's Executors v. Van Schaick

20 Wend. 564 | N.Y. Sup. Ct. | 1838

By Mr. Justice Bronson.

Every estate is void in its creation, which is so limited that the absolute power of alienation may be suspended for more than two lives in being at the creation of the estate. The lives must be designated,- and life must in some form enter into the limitation. No absolute term, however short, can be maintained. The testator attempted, by means of a trust to receive rents and profits, to render his lands inalienable for a term, of which more than nineteen years remained unexpired at the time of his death. This he could not do. The statute had forbidden it. The whole trust estate, and the remainders limited upon it, are consequently void. Coster v. Lorillard, 14 Wendell, 265. Hawley v. James, 16 id. 61. The power in trust to make partition at the end of the term is subject to the same objection as the trust. It works an illegal suspense of the power of alienation. That this may be the effect of a power in trust, and that the power will then be void, has been adjudged by this court in the cases already mentioned.

*567The testator left seven children, and grandchildren representing two other children, his heirs at law, to whom the estate descended, subject to the execution of the power. They took by descent, not by devise ; and whether they will ever take any thing under the will, depends on their surviving the term. The The division is to be made among the heirs of the testator, and such persons as may be their legal representatives at the end of the twenty-one years. Several grandchildren of the testator were born between the time of his death and filing of the bill. These and other grandchildren and other more remote descendants of the testator, who were not in being at the time of his death, and who may not be born until the last day of the term, may be entitled to share in the partition. It is evident, therefore, that at no time during the term can such an absolute fee in the land be conveyed as may not be defeated, either in whole or in part, by the execution of the power. It could not be done if all mankind were to join in the conveyance.

In Root v. Stuyvesant, 18 Wendell, 257, all the justices of the supreme court were of opinion that the power of appointment was valid, although there was a possible mode of execution which the law would not permit. That, however, was a power which the grantees might execute or not at their pleasure. It imposed no duty on the tenants for life; it did not require them to do an illegal act. But this is a special power in trust, and is imperative. It imposes a duty on the grantees, the performance of which may be compelled in equity for the benefit of the parties interested. 1 R. S. 734, § 96. The testator has directed such a division and conveyance of his estate at the end of the term as the law has forbidden. Such a power cannot, I think, be upheld for any purpose.

No distinction was made on the argument between the real and personal property included in the trust. 1 R. S. 773, § 1, 2.

The only remaining question relates to the bequest of $6,000, to each of the grandchildren of the testator living at the time of his death. It is said that these are contingent not vested *568legacies; and that the contingency is of such a nature as to work an illegal suspense of the absolute ownership of the property. 1 R. S. 773, §1,2. If this were in truth a contingent bequest; if the legatees were only to take on condition that they respectively attained the age of twenty-one years or married, and on the further condition that their parents fixed on a time for the pay-1 ment of the legacies, there would be no illegal suspense of the absolute ownership of the property. The gift would in that case either vest in each of the legatees at some period during his life, or never vest at all j and the power of disposing of the property could, at the most, only be suspended for a single life.

But I think the legatees severally took a vested interest immediately on the death of the testator. Where, as in this case, there is a present absolute gift, postponing the time of payment to a future day does not render the legacy contingent. Patterson v. Ellis, 11 Wendell, 259. If the testator had stopped after directing the legatees to be paid upon their attaining respectively the age of twenty-one years or marrying, the legacies would clearly have been vested. The clause which follows requiring the approbation of the parents cannot alter the case. It only provides for a further postponement of the time of payment. The gift is still absolute. The parents of any legatee have no other power over his legacy than that of fixing a discreet and proper time for the payment. A discretionary power of this kind will not prevent the vesting of a legacy. Churchill v. Speake, 1 Vern. 251.

If the legatees took vested interests on the death of the testator, there neither is nor can be any suspense of the absolute ownership of the property. Although the time of payment has not arrived, there are persons in being who can convey a perfect title to the property, including the right of present enjoyment. If this cannot be done by the legatees and executors together, it certainly may be accomplished by joining with the next of kin to the testator.

Although that part of the will which relates to the trust is illegal and void, it has not been pretended that another inde*569pendent provision, which is in itself free from objection must consequently be overthrown. The counsel seem to have been agreed that the rule of the common law and of our statute is still in force, and that the intention of the testator, so far as it is consistent with the rules of law, must be carried into effect, notwithstanding the decision of this court in Root v. Stuyvesant, 18 Wendell, 257. That case is in direct conflict, on this point, with the decision of this court in Hawley v. James, and seems only to be regarded as an adjudication between the amicable parties then before the court, and not as a precedent which can affect the rights of third persons.

I have arrived at the following conclusions : The trust to receive rents and profits, and the power in trust to make partition, are illegal and void. The bequest of legacies to the grandchildren, having no necessary connection with the illegal trust, and being in itself free from objection, is valid. These are the only questions which were discussed on the argument, and in relation to each of them I think the decree of the court of chancery was right, and that it should be affirmed.

Whereupon the decree of the chancellor was unanimously AFFIRMED.