Lorillard v. Coster

| New York Court of Chancery | Apr 7, 1835

The Chancellor.

The validity of the trust as to the legacies to the Theological Seminary and to St. Philip’s Church, and as to the several annuities, present or future, which the trustees are directed to pay out of the rents and profits of the city property, was not contested on the argument of this appeal. On the contrary, it was distinctly admitted on the part of the appellants, and I understood the counsel for all the other parties to the suit who are interested in the question to concede, that the provisions of the will and codicil were valid, so far as related to the payment of such legacies and annuities out of the income of the real estate of the testator in the city of New-York. It is not necessary, therefore, that I should express any opinion upon that question.

game doubt may perhaps exist as to the validity of the trust for the accumulation of Jacob Lorillard junior’s share of the rents and profits for the first seven years after the death of the testator, and the accumulation of one half of Mrs, Bartow’s share, for the same period, as directed in the eighth and ninth sections of the codicil. But the children of Mrs. Bartow, in whose favor the trust of accumulation, as to half of her share, is directed, are not before the court, and their ages are not stated;' neither are the necessary facts presented by the pleadings to enable mo to decide as to the validity of either of those trusts of accumulation. The decision of these questions must therefore be suspended; with liberty to any of the parties interested in the decision to file a supplemental bill, if they shall be so advised, for the purpose of presenting the facts, and bringing the necessary parties before the court, with a view to such decision.

All the grand nephews and nieces of the whole blood of the testator now in existence, and who may hereafter be entitled to come in as the new trustees, in the manner directed in the second paragraph of the fourth section of the will, appear to be necessary parties for the final decision of the question as to the validity of the bequest of one sixteenth of the rents and profits to the nexv trustees, when they shall be called upon to act as such trustees. And all of them also appear to be necessary parties for the final decision of the question as to the validity of the ultimate limitation over of the estate, after the death of the twelve nephews and nieces. It was supposed by the counsel for the complainants, upon the argument, that the appellants were not in a situation to ask for a decision of these questions in the present suit. I am not prepared to say that the vice chancellor, by the decree appealed from, has not inadvertently disposed of at least one of these questions, not only against the heirs at laxv, but also against the txvo grand nephews who are parlies to this suit; so as to make that decree binding and conclusive against the rights of both, as to the sixteenths of the rents and profits, if the decree is not reversed or modified on this • appeal. That decree is certainly conclusive as to any future claim on the part of the heirs, to these sixteenths of the rents and profits, as a part of the property not legally disposed of by the will; as the decree directs the whole of the surplus rents and profits, during the lifetime of the txvelve nephews and nieces and the longest liver of them, to be paid to and among such nephews and nieces, and to and among the survivors and survivor of them, share and share alike, according to the directions of the will. I am inclined to think this decree must also be construed as containing a direction to distribute the whole among the nephews and nieces, without reference to the sixteenths appropriated to the new trustees, after the original trustees who were willing and qualified to act shall be reduced below five; so as to bar the claim of the two grand nephews of the testator who are parties to the suit, to these sixteenths, in their character of new trustees, when they may be called upon to act as such, as well as to bar their claim to a share thereof as property undisposed of by the will, to which, in that case, they would have a claim as heirs at law of the testator. If it was not intended to decide the questions as to the validity of this part of the trust, and as to whom these sixteenths would legally belong when the time arrived for bringing in the new trustees, the decree should have directed the distribution among the. nephews and nieces only to that.time ; and all further directions as to the distribution should have been reserved. This part of the decree, however, may still be right, if the general trusts in favor of the twelve nephews and nieces are valid ; provided the limitations over to the new trustees of these sixteenths of the rents and profits are absolutely void.

I also think that this is a case in which the heirs at law of the testator, who insisted upon the invalidity of the whole trust as to the rents and profits and as to the ultimate limitation over to the children- and grand-childrden of the twelve nephews and nieces, had a right to ask for a decision of the court as to the validity of these several limitations; before the trustees could be authorized to execute the power in trust in relation to investing the personal estate, and the proceeds of the testator’s real estate out of the city of New-York. That investment can be authorized, by the court, only so far as the trusts upon which the testator has directed the investment to be made are legal and proper. And if the ultimate limitation over to the children and grand-children of the twelve nephews and nieces, or any part of the previous trust, is void, the investment must be made in such a manner as to secure the rights of those who are entitled to the parts of the estate not well devised. So far as is necessary to settle the rights of the appellants as to the legal and correct mode of making this investment, so as to protect the legal and equitable rights of all, the executors and trustees must be considered as the legal representatives of the rights of persons not yet in ésse; who could not, of course, be brought before the court as parties. And it is not the fault of the appellants that the grand nephews' and nieces of the testator, who were in existence at the commencement of this suit, are not made parties thereto. If the question as to the want of proper parties had been suggested before the vice chancellor, it would have been the correct course to let the cause stand over, with leave to the complainants to amend their bill, so as to bring all necessary parties before the court. But as neither party raised the objection there, it was competent for the court to go on and make the proper decree, so as to settle the rights of the parties then before it; which decree, of course, is without prejudice to the rights of those who are not before the court as parties, and who were entitled to be made parties before a decree could be made as against them definitively settling their contingent rights.

The discussion of the questions arising upon this appeal, and the decree which may ultimately be made between the present parties, must, to a certain extent, be a discussion and decision of questions involving the rights of persons in esse who are not now before the court. That consideration, however, is not very material in the case now under consideration ; as most of those persons are infants, who would be dependant on others for the protection of their rights, even if they were nominal parties, and as there is no dispute as to facts. The decision of the court upon questions of law arising between the parties to the suit cannot legally affect the interests of those who are not properly represented here, except so far as the decision of a question of law, by one of the superior courts of judicature, necessarily involves a decision of the rights of persons who are not parties to the suit, but whose rights depend upon the same question.

I agree with the vice chancellor, that it is evident, from the whole of this will taken together, that the testator- intended the rents and profits which should arise from the real property directed to be purchased in the city of New-York, should be divided among the twelve children of his brothers of the whole blood; which children were expressly named, in the first section of the will, as distributees of the surplus rents and profits of the city property of which he died seized. At the time of the making the will, and at the death of the testator, the twelve nephews and nieces of the whole blood, named in the first section of the will as distributees, were the only children of these three brothers. And there is no fact or circumstance before the court from which I can infer that the testator contemplated any increase of the number of those children. Neither was there any reason, on the general principles upon which he attempted to dispose of the rents and profits of his property during the continuance of the trust, for making a distinction as to (he class of persons who were to be the distributees of the income of the city property, over and above the legacies and annuities charged thereon, aud the class to whom the income of the property which, he directed to be purchased was to be distributed during the same period. It is evident, to my mind, that the testator, throughout this will and codicil, has used the expressions, my said nephews and nieces, and all the children of my brothers Blaze, Peter, and Jacob Lorillard, indiscriminately, as meaning the same thing; and as intended to designate the twelve nephews and nieces who had been particularly named by him as trustees and executors in the commencement of the will, and as general distributees of the rents and profits of the real estate mentioned in the first section. The latter expression is used, both in the will and in the codicil, in limiting the continuance of the annuities ; where it unquestionably means the twelve nephews and nieces, upon the termination of whose lives the ultimate limitation over of the legal estate to others is made to depend. In this case, also, the gift of the rents and profits of the property to be purchased, must be deemed to vest in possession at the death of the testator; and not at the end of the three years, which is fixed as the period within which the power in trust shall be executed. Although, as a general rule, one year is allowed for the purpose of collecting and ascertaining the extent of a personal fund directed to be turned into real estate, this does not alter the general rule as to the construction of a will devising property to a class. The principle of construction adverted to by the vice chancellor, in his opinion in this case, is therefore correct as applied to the second sectian of the will. And a devise of the rents and profits to all the children of the three brothers, as a class, would not include those who were not in esse at the death of the testator, (See 3 Bro. C. C. 404, note a.) There is, therefore, no difference in the construction which is to be given to the general devise of the rents and profits of the city property of which the testator died seized, and that in relation to the rents and profits of the real estate which he directs to be purchased j or as to the ultimate limitation over of the legal estate after the death of the twelve nephews and nieces. Upon the principles of equitable conversion, money directed by the testator to be employed in the purchase of land, or land directed to be sold and turned into money, is, in this court, for all the purposes of the will, considered as that species of property into which it is directed to be converted; so far as the purposes for which such conversion is directed to be made are legal, and can be carried into effect. (Sweetapple v. Bin-don, 2 Vern. 546. Leadenham’s Ex’r v. Nicholson, 1 Har. & Gill’s Rep. 267. Fletcher v. Ashburner, 1 Bro. Ch. Cas. 497, Craig v. Leslie et al., 3 Wheat. Rep. 563.) The same principle is also applicable to the case of a direction in a will to sell one piece of land and to convert it into another, for the purposes of the will, by investing the proceeds of the sale in the purchase of such other lands, under a valid power in trust to make such sale and reinvestment. The whole doctrine of equitable conversion depends upon the well established and familiar principle, that a court of equity looks upon that as done, which the parties to an agreement, or marriage settlement, have contracted to do, or which the testator by his will has directed to be done ; so far as the contract of the parties, or the will of the decedent, could have been carried into effect, without violating any equitable principle or rule of law.

The validity of the general trust, in favor of the twelve nephews and nieces of the whole blood of the testator, depends upon the" construction to be given to the 15th section of the title of the Revised Statutes relative to the nature and qualities of estates in real property and the alienation thereof, in connection with other provisions of the same title ; particularly those contained in sections thirty-six, fifty-five and sixty-8hree. (1 R S. 723, 725, 728, 730.) And it may be proper hereafter to examine the history of this 15th section, with u view to determine the question whether it was intended, as supposed by the vice-chancellor, to apply only to future estates in land, as defined by the 10th section, or whether it was intended to prevent real property from being shackled or encumbered, by any means whatever, whereby the power of conveying an absolute fee in possession, in such property, should be suspended for more than two lives in being, except in the special case provided for in the 16th section. I may here remark, that the provisions of the 36th, 55th, and 63d sections, as well as of the 15th as it now stands, are alterations of the common law rules as to estates and interests in real propertjr. And. no reasonable doubt can be entertained that all the devises and bequests in this will and codicil, including the" ultimate limitations over to the grand nephews and nieces and their children, would have been valid previous to the adoption of the Revised Statutes. (Sec Cadell v. Palmer and others, 1 Clark & Finn. Rep. 372.) As the law then stood, however, although the ultimate remainder in the property would have been inalienable until the expiration of two years after the death of the twelve nephews and nieces, the intermediate estate would not have been tied up in the mean time. Indeed, I know of no way in which a present vested interest in real property could have been rendered absolutely inalienable previous to the adoption of the Revised Statutes. The only way In which a conveyance of an absolute fee could be prevented, was by the limitation of a future or contingent interest or estate in the property, in favor of a person not in esse, or in favor of one who was not ascertained at the time of the creation of such estate or interest. This of course would not affect, or suspend, the alienation of a present interest given to another person. And the legislature have done very little towards the improvement of the law, in this respect, if they have enabled the owner of a large estate to give a present vested interest therein, which shall be absolutely inalienable during any number of lives in being at the creation of such interest; and have only removed obstructions which might heretofore Stave prevented the conveyance of future and contingent interests. I think, however, it will be found, upon a careful examination of the subject, that neither the revisers or the legislature have made such a mistake in the recent revision of the laws. The object of the third subdivision of the 55th section of the title before referred to, when taken in connection with the 63d section, was to enable the owner of property to create a trust therein for the benefit of an unfortunate or improvident child, or relative; and thereby to secure a support and maintenance for life, or for any shorter period. And in the 57th section, the revisers have carefully provided against an abuse of this right, to the injury of the creditors of the cestui que trust; by subjecting the surplus rents and profits of the trust property, beyond what may be necessary for his education and support, to the claims of such creditors. But as such an interest is rendered inalienable during the continuance of the trust, if a testator can render it inalienable for more than two lives in being at the time <pf his death, consistently with the restriction contained in the 15th section, by creating an interest in the rents and profits of the trust estate in the nature of a joint tenancy between three or more persons, he could also render it inalienable for a century, by inserting a great number of lives. In the present case, instead of inserting the names of only twelve nephews and nieces as trustees and c.estuis que trust of the rents and profits of his estate, the testator might have indulged his peculiar fancy much further, by inserting the names of his three nieces of the half blood and his fifteen grand nephews and nieces, who are partially provided for in the will, as joint trustees and distributees with the other twelve. In this way he would have taken the same chance of suspending the power of alienating or of dividing his large estate, during the lives of thirty persons. And as all of them had nearly the same claims upon his bounty, and the income was more than sufficient for all, such a disposition of his property would be full as rational as the one he has made by this will.

By the common law, as modified by the statute of uses, a testator, by means of an executory devise of a contingent, shifting, or springing use, or trust, in favor of persons not in esse, or who could not be ascertained until after the happen-lag of the contingency provided for in the will, might legally suspend the power of alienating an absolute fee simple in possession, in his estate, during the continuance of any number of lives in being at the time of his death, and for twenty-one years, and the usual time of gestation, afterwards. The revisers, in their report to the legislature of the first chapter of the second part of the Revised Statutes, referred to this principle of the common law, and to the abuses which had sometimes occurred by inserting a great number of lives in the limitation of such future and contingent estates, for the purpose of suspending the power of alienation for a very long period of time. They referred particularly to the Thcllv.sson will, where the vesting of a contingent estate was suspended during the continuance of thirteen lives, for the purpose of preventing the partage of the testator’s large estate during a very long period, and to increase it beyond all reasonable bounds by an accumulation of the income of the property in the mean time; which will was the cause of the passing of the English statute against accumulations. They also alluded to the case of BengougKs will, made subsequent to that statute, and mentioned in the opinion of the vice chancellor, where the testator succeeded in suspending the power of alienation for the lives of twenty-eight different persons, and for a gross term of twenty years afterwards. They might also have referred the legislature to the case of Humberston, the hospital boy, who, like the testator in the present case, had amassed a large fortune by his own industry and perseverence, but had no children to propagate his name, or enjoy hie estate. He, therefore, as he declared in his will, thought it consistent with reason to attempt to perpetuate his remembrance and his name to all posterity, by devising his property to the Draper’s Company, and their successors, in trust, to convey the same, for life, to about fifty Humberstons in succession, with contingent life estates to their several sons successively. This attempt, however, failed, in part, in consequence of the introduction of the intermediate estates to persons not in being at the death of the testator. (See 2 Vern. Rep. 737; 1 P. Wms. §88.)

The remedies which the revisers at first proposed, to prevent such abuses in the limitation of contingent estates, were to limit the accumulation of the income, or rent and profits of the estate, to the actual minority of the person for whose benefit such accumulation was to be made, and who must be in existence at the time the accumulation for bis benefit was directed to commence; to prevent the power of alienation from being suspended by the introduction of mere nominees, who had no interest in the previous estate, beyond the period of two lives; to restrain the creation of more than two successive estates for life; and finally, to restrict the power of limiting contingent remainders to persons not in esse at the death of the testator, to a provision for the single case of the death of the first remainder-man in fee during his minority. But as a trustee cannot alienate the trust estate in violation of his trust, and the interests of the cestui que trust in the rents and profits, or income of property, was rendered inalienable by the 63d section of the statute, and as the 60th section declared that the cestui que trust in such a case should take no estate or interest in the land, the restriction proposed by the revisers upon the creation of future contingent estates would not have prevented abuses in the creation of such trusts, had not the present 36th section been introduced. This, with the 17th section, which was afterwards stricken out by the revisers, would I think have been sufficient to answer every purpose contemplated by them; although the 55th section, in connection with the 63d and 65th sections, had introduced a new method by which a present vested estate in possession could be rendered inalienable during the life of the party for whose benefit such estate was created.

The vice chancellor was probably led into the error of supposing that the 15th section only related to future estates, as defined in the 10th section, from the juxtaposition of the 14th and 15th sections, and from the first clause of the former being confined in terms to future estates; and also from the fact that at the common law there was no way of rendering property inalienable, except by the limitation of a future estate. The 15th section, as originally drawn, was only in accordance with the rule of the common law, as modified by the rejection of the absolute term of twenty-one years in gross, after the determination of any number of lives in being at the creation of the estate. This section in its terms, like the analogous principle of the common law, embraced, and was intended to embrace, every possible means by which the estate could be rendered inalienable beyond the prescribed period. And it was the original 17th section only, which prohibited a suspension of the power of alienation, beyond the period of two lives, by the creation of future estates; which estates were declared to be void in their creation. After this chapter was prepared by the revisers and printed, for some reason which does not appear, but probably to prevent any attempt which might be made, under the provisions of the 55th and 63d sections, or otherwise, to tie up the estate for a longer period than two lives in being, and to make assurance doubly sure, they concluded to alter the 15th section; so as to declare the general rule of law for the future, that the absolute power of alienation should not be suspended in any case whatever, for a longer period than during the continuance of not more than two lives in being, except in the single instance of the death of the ultimate remainder-man during bis minority, as provided for in the next section. This alteration in the 15th section being made, the 17th section which applied only to restrictions upon the power of alienation by means of future estates became unnecessary, and was stricken out; the provisions of the 15th section, as amended, being sufficiently broad and extensive to embrace every kind of estate,.either present or future, by which the power of alienation might be suspended beyond the prescribed period. The corrections to which I allude, will be found upon the. back of the printed analysis to the chapter on real property, as reported to the legislature by the revisers.

But even if the counsel for the respondents are right in supposing that the 15th section only relates to a suspension of the power of alienation by the creation of future estates, I do not see how it can help their clients in this case; for the 36th section declares, that dispositions of the rents and profits of lands, to accrue and be received at any time subsequent to the execution of the instrument creating such disposition, shall be governed by the rules established in this article, in relation lofuiure estates in lands. (1 R. S. 725.) Every disposition of rents and profits of land, therefore, either through the medium of trustees or otherwise, which has the effect to suspend the power of conveying an absolute fee in possession in the premises for a longer period than is allowed by law, must be considered as a suspension of the power of alienation by means of a future estate, so as to render such disposition invalid; so far, at least, as it has the effect to render the estate inalienable for a longer period than is allowed by the 15th section. The third subdivision of the 55th section is also in strict accordance with these previous provisions; as the express trust for the receipt and the disposition of rents and profits, which is there authorized, is in terms made subject to all the rules prescribed in the first article of that title of the statutes. It is therefore evident, that the legislature had put it out of the power of the testator to make any disposition of his property, or of the rents and profits arising from such property after his death, either through the medium of trustees, or otherwise, which would have the effect to render the property inalienable during the continuance of the lives of these twelve nephews and nieces.

The present case is a striking illustration of the wisdom of these restrictions upon the power of rendering real property inalienable for a long period of time. For the result of the provisions of this will, if they can be carried into effect agreeably to the intention of the testator, will be, according to the ordinary chances of life, to prevent any partage or division of a property now worth three or four millions, for a period of from fifty to one hundred years; and in the mean time to give to a few of the nephews and nieces, who may chance to live the longest, an enormous and constantly increasing income ; while the descendants, not in esse at the death of the testator, of such of the nephews and nieces as happen to die first, will be left without a shilling out of the proceeds of this immense estate for their education and support, during the continuance of the trust, although presumptively entitled to a large share of the property after the death of the whole of the twelve nephews and nieces.

Nothing can be more repugnant to the principles of a republican government than the perpetuation of large and overgrown estates, long after those, by whose industry and prudence such estates have been acquired, have been laid in their graves. I admit it is the part of wisdom, in a republic, to foster a spirit of enterprise, economy and active industry among all classes of its citizens, by securing to them the undisturbed enjoyment of their honest acquisitions as long as they are capable of such enjoyment, and by permitting them, within reasonable limits, to dispose of the fruits of their exertions as they please at their death. The natural right, however, of disposing of, as well as enjoying all earthly possessions, necessarily terminates with our lives. And whatever power of disposition or control we are permitted, by anticipation, to exercise over our acquisitions after that time, is merely a favor conferred upon us by some positive regulation of society. No one, therefore, should be encouraged, or even allowed, to make an unnatural and capricious disposition of his property by will, without regard to the situation and probable wants of those who are the" proper objects of his bounty, for the mere purpose of rendering such property indivisible and inalienable for a long period after his death; because such a disposition of his property, by will, is a serious injury to the community, which has granted to him the privilege of disposing of the accumulations of his life in this manner.

The fault in this case is not, as the counsel supposed, in the law, which has rendered a trust estate for the receipt of the rents and profits inalienable, although it authorizes the creation of such an estate; for there is no difficulty whatever in disposing of interests of that kind so as to provide for any number of children and relatives, without violating any of the rules of law relative to the creation of future estates, and without rendering property inalienable beyond the prescribed limits. But if a testator, instead pf separating a large estate into parcels, and creating a trust in the rents and profits thereof in favor of each object of his bounty, attempts to prevent a division of his property, and to render the whole of it inalienble for a longer period than is permitted by law, by ereating an interest in the rents and profits in the nature of a joint tenancy between a great number of persons, the fault is in the instrument creating such an estate, and not in the law which renders the estate inalienable. In such a case, it is the nature of the estate created, and not a mere personal disabilty of the individuals for whose benefit it is created, which renders it impossible for the trustees, or any other persons in being, to convey an absolute fee in possession in the premises. Where, either by the rules of the common law or the provisions of a statute, an estate or interest of a particular character, must necessarily have the effect to suspend the power of alienation beyond the prescribed limits, it is in vain for any one to attempt to evade the positive prohibition, so often alluded to, contained in the fifteenth section of the revised statutes, by the creation of such an estate, or interest. And if the interest of the nephews and nieces, in the rents and profits of the testator’s property, is to be considered as of the nature of a joint tenancy, so as to prevent a partage of the property, and to render the whole inalienable until these twelve persons are all dead, I shall feel myself constrained to declare that the whole trust in their favor is void.

It therefore becomes my duty to examine the question, which was not raised before the vice chancellor, but which was so ably argued by the counsel for the infant trustees on this appeal, whether the interest of the twelve nephews and nieces, in the rents and profits, is to be considered as of the nature of a joint tenancy, or only as- a tenancy in common with cross-remainders.

Every estate vested in executors or trustees, as such, is held by them in joint tenancy, as between themselves. But the nature of their estate in the trust property, in reference to the rights of their cestuis que trust and others, depends entirely upon the nature of the rights or interests of the latter. And when all the purposes of the trust as to any share of the trust property are illegal, or cease, the estate of the trustees, in that share of the property, also ceases to exist; and the trustees thereafter become tenants in common with the owner of that share, although, as to the residue of the property, the trustees continue to hold it in joint tenancy between them■selves. (1 R. S. 727, § 44 Id 730, § 67.)- I can see no difficulty in applying this principle to the case of a trust which is void only as to an undivided share of the property, which undivided share is of such a nature that it can be holden by the owner thereof as a tenant in common with the trustees, as the owners of the residue of such property in their character of trustees and joint tenants of such residue. The legislature of this state has made it the duty of the court, in the construction of a will, or any other instrument creating, or conveying, or authorizing the creation of any estate or interest in lands, 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. (1 R. S. 748, § 3.) This was the rule of construction as to wills, before the adoption of the revised statutes. And I am not aware that it was ever seriously doubted, that where a part only of the trusts of a will were contrary to the rules of law, the intention of the testator could be carried into effect, so far as it was consistent with legal rules, where it was possible for the court to separate the legal from the illegal part of the trusts. The court of chancery sometimes even ventured to alter or modify the trusts of a will which were illegal, or incapable of being carried into effect, upon the doctrine of cy pres; so as to make them conform as near as possible to the intention of the testator, without violating legal rules. This doctrine, however, never received much encouragement, except in the single case of devises to charitable uses. I cannot, therefore, agree with the counsel who argued this case on the part of the Infant trustees, in supposing that the provision of the revised statutes, last referred to, was intended by the legislature to extend the doctrine, of cy pres, so as to make it the duty of courts of justice to frame or decree the execution of a new intention for the devisor in a will, or the grantor in a deed, as near as possible to the original intent which was illegal or incapable of being carriel into effect. The object of the legislature unquestionably was to declare the rule of law as it before existed in relation to the construction of wills and the carrying into effect of the intention of the testator so far as such intention was legal and practicable ; and to apply the same principles to all other instruments in the nature of conveyances of real property.

If this testator, by his will, had made separate or distinct devises of the several undivided one-twelfth parts of his property to the same trustees, for the benefit of his nephews and nieces respectively, giving the rents and property of each undivided share of the property to such nephews or nieces for life, I think there could have been but very little difficulty in arriving at the conclusion that the interests of the several néphews and nieces, in the rents and profits of their several undivided shares of the property, must be considered as in the nature of several tenancies in common, and not as a joint tenancy; although the legal estate in the entire property, and the right to collect and receive the rents and profits, during the joint lives of the whole twelve, would have been in the same persons as trustees, who would therefore have been joint tenants as between themselves. And upon the death of one of the nephews or nieces, the legal estate in the hands of the trustees would cease as to that undivided one-twelfth of the property, and the heirs at law of the testator would become tenants in common with the trustees. That share of the estate, therefore, would only be rendered inalienable during the continuance of one life in being at the death of the testator, to wit, the life of the cestui que trust of the rents and profits thereof. The same principle would apply as to the share of the estate devised for the benefit of each of the other nephews and nieces.

In the form in which this devise of the rents and profits to these twelve nephews and nieces is in fact made¿ there is no doubt that their interests in the rents and profits must have been considered as in the nature of a joint tenancy, if the common law rule of construction still prevailed. By the common law, a devise or grant to two dr more persons created a joint tenancy, except in those cases where it was expressly declared, or appeared by necessary implication, that the estate created was intended to be a tenancy in common. But this rule of the common law was reversed by the legislature of this state more than fifty years since, except as to the estates of executors and trustees. (1 Greenl. Laws, 207, § 6 ; 3 R. S. app. 48.) And since that time every grant or devise of an estate, or interest in lands, to two or more persons in their own right, or to others in trust for them as the persons beneficially interested therein, has been deemed and taken to be a tenancy in common, between the parties thus beneficially interested, except where their estate or interest was expressly declared to be a joint tenancy. (See 1 R. S. 727, § 44.) •The third subdivision of the 55th section of the statute, which authorizes this disposition of the rents and profits of land through the medium of trustees, subjects the disposition to the rules prescribed in the first article of that title; one of which roles is that contained in the 44th section, reversing the common law rule of construction as to joint tenancies.

From the best and most satisfactory view, therefore, which I have been able to take of all the provisions of this will, the conclusion at which I have arrived, is, that the interest of the twelve nephews and nieces is in the nature of a tenancy in common for life, with cross-remainders; and that such cross-remainders, so far as they are inconsistent with the 17th section of the statute, which prohibits the creation of more than two successive estates for life, are void. It is evident, also, that'the first cross-remainders which are limited upon the life estate of each nephew or niece in his or her original undivided share as tenant in common of the rents and profits, are contingent interests, in the nature of contingent future estates ; and such interests being inalienable, by the provisions contained in the 63d section of the statute, even after such interests shall become vested in possession, the respective original shares, or undivided portions of the real estate out of which those interests arise, are rendered inalienable for one life before the cross-remainders can vest in possession, and also during the continuance of one other life after the first cross-remainders shall have become vested. All the cross-remainders, except those which are limited to take effect upon the termination of the life estate of the nephew or niece who shall happen to die first, must necessarily have the effect of suspending the power of alienation of portions -of the estate far a longer period than the lives of two persons in being at jlhe time of the testator’s death; and upon which lives such

cross-remainders are, by the will of the testator, made to depend. Each of the twelve nephews and nieces had, upon the death of the testator, a vested interest in his or her share of the rents and profits, in the nature of a vested but inalienable life estate in one-twelfth of the devised property. This interest necessarily suspends the power of alienation as to .such share during his or her own life.. It cannot, therefore, by any limitation of a contingent interest, or future estate, be suspended beyond the life of one other person in being at the death of the testator. And as each of the twelve, in addition to the present vested interest in his or her own share for life, has also a contingent future interest, in the nature of a contingent remainder, limited upon the original life interests in the several shares of all the others, that contingent interest must of course suspend the power of alienation, as to those shares respectively, during his or her life; as the one who happens to die first might, by possibility, have survived the owner of the original life interest in every share except his or her own. When, therefore, the owner of any original share dies subsequently to the death of any one of the other eleven who now has a contingent remainder limited upon the original life interest in such share, the alienation of that share will have been suspended for two lives in being at the creation of the estate. It is evident, then, that if other contingent interests or cross-remainders in such share should be considered as valid, and be permitted to vest in the survivors, the power of alienation as to such share would be suspended beyond two lives—and that too by means of the limitation of future interests, in the nature of future estates. The several cross-remainders, therefore, in favor of the eleven survivors in the rents and profits of the original share of the nephew or niece who shall first diej and which are so limited as to take effect immediately upon the death of that nephew or niece, and those only, are valid, under the restrictions contained in the 15th section of the statute; and the several cross-remainders which are limited to take effect upon the termination of the first life estate, in the shares of each of the other eleven nephews and nieces, are void.

The limitation of the sixteenths to the new trustees, by the terms of the will, are not to take effect in favor of the grandnephews and nieces until the number of the original trustees is reduced to four. That part of the devise, therefore, is void, as being too remote; and it does not change or alter the rights of the surviving nephews and nieces, or the heirs at law, as to the distribution of the rents and profits, as limited by the two first sections of the will. The whole limitation over of the ultimate remainder in fee, to the grand-nephews and nieces, or their children, who may be in existence at the time of the death of the last of the twelve nephews and nieces, is a contingent remainder; and, if it could be sustained, it would necessarily suspend the power of alienation beyond the period allowed by law, before the class of persons among whom the trustees were to divide the property could be ascertained. That limitation, therefore, is void, as being too remote.

The decree of the vice chancellor must be reversed, or modified,. so far as it is inconsistent with this opinion ; and a decree must be entered, declaring the construction of the will, and the rights of the parties accordingly. It must also be referred to a master, to settle the form of the conveyances to be taken by the trustees upon the investments in city property, with proper limitations, securing to all persons interested in the property their legal and equitable right therein-—the costs of all the parties on this appeal to be'paid out of the estate.

The following decree was thereupon entered

66 This cause having been heard before the chancellor, upon the appeal from the decree of the vice chancellor of the first circuit, of the seventh of April, 1834, and having been fully-argued by the counsel of the several parties, and the chancellor having duly considered the same, It is ordered, adjudged, declared and desreed, that the legacies to the trustees of the General Theological Seminary of the Protestant Episcopal Church in the United States, and to the trustees or vestry of St. Philip’s Church, and the several annuities to Daniel Hols-man, and to his children, to Rosanna Bowers, and to the several grand nephews and nieces of the testator, George Loriílard, who were living at the time of his death, in the will and codicil mentioned, as stated in the pleadings in this cause, are valid ; and are also valid charges upon the rents and profits of the testator’s real estate whereof he died seized in the city of New-York, during the lives of his twelve nephews and nieces, who are named as executors and trustees in his said will, and during the life of the survivor of the said twelve nephews and nieces, if the respective annuitants shall so long live; and the rents and profits of each and every portion or share of the said real estate in the city of New-York is chargeable with a just and rateable proportion of the said legacies and annuities, without reference to the validity of the devise to the executors and trustees.

“ And it is further ordered, adjudged, declared and decreed, that the limitation, devise, or bequest of one sixteenth of the net income of the estate of the testator, to each of the grand nephews and nieces of the testator who shall act as trustees and executors, after the number of the original trustees and executors shall be reduced to less than five persons, is illegal and void in its creation; and does not change or alter the rights of any of the nephews and nieces, or of the heirs at law of the testator, as to the distribution of the rents, profits, and income of the estate. But the invalidity of the limitations, devises, or bequests of the sixteenths of the rents and profits will not prevent the said nephews and nieces from acting as trustees, according to the provisions of the said will.

“And it is further ordered, adjudged, declared and decreed, that the devise or limitation over, of the ultimate remainder in fee, to the grand nephews and nieces of the testator, or their children, who may be in existence at the time of the death of the last of the twelve nephews and nieces who are named as the executors and trustees in the testator’s will, is a limitation of future contingent estates which would suspend the absolute power of alienation of every part of the testator’s real estate in the city of New-York, for a longer period than during the continuance of two lives in being at the time of his death, and is therefore absolutely void.

n And it is further ordered, adjudged, declared and decreed, that the interests of the twelve nephews and nieces of the testator, named in the residuary clause of the first section or article of his will, in the income or rents and profits of the real estate in the city of New-York, are not in the nature of a joint tenancy, but are in the nature of tenancies in common between the twelve nephews and nieces for life, with cross-remainders to the survivors in the shares of those who shall die before the time appointed for the vesting of the ultimate remainders in fee; and that the trust created by the said will, as to the share of each of the twelve nephews and nieces, is valid during the continuance of the life of the person first entitled to such share. But the several cross-remainders, so far as they are inconsistent with the provision of the Revised Statutes, which prohibits the creation of more than two successive estates for life, being void, all the contingent remainders in each share, except the first cross-remainders in such share, are therefore void. That the several cross-remainders in favor of the eleven surviving nephews and nieces, in the rents and profits of the original share of the nephew or niece who shall first die, and which are limited to take effect immediately upon the death of such nephew or niece, are valid. But. that all the other remainders, which are limited to take effect upon the death of any of the other eleven nephews or nieces, being limited in such a manner as to suspend the power of alienation for a longer period than during the continuance of two lives in being at the death of the testator, are therefore illegal and void.

“ And it is further ordered, adjudged, declared and decreed, that the trusts created in and by the second section or article of the will of the testator, George Lorillard, in the real estate to be purchased in the city of New-York, and the power in trust to sell the real estate out of the city of New-York, for the purpose of making such investments, are valid, to the same extent as the devise in trust, in the previous part of the will, in relation to the real estate of the testator in the city of New-York. That the twelve nephews and nieces, named by the testator as executors and trustees, are the persons intended to be designated by the words “ all the children of my said brothers Blaze, Peter, and Jacob Lorillard,” in the second section or article of the will; and that the testator did not intend to include any after-born children of his two surviving brothers, in the devise of the income or rents and profits of that part of his property.

“ And it is further ordered, adjudged and decreed, that it be referred to one of the masters of this court, residing in the city of New-Yorb, to settle and report to this court the form of the conveyances which shall be taken by the executors and trustees, upon the investments of the proceeds of the testator’s real estate out of the city of New-Yorb, and of his personal estate, in the purchase of real estate in that city; with proper limitations in such conveyances, securing to the several devisees and to the heirs at law of the testator, their several rights therein upon the footing of this decree. That the costs of all the parties in the original suit, as well as upon this appeal, be paid by the executors and trustees out of the income, rents, and profits of the real and personal estate of which the testator died seized. And that all questions and directions, not herein decided or given, be reserved until the coming in of the said master’s report; with liberty to any party to apply to the court from time to time, upon the foot of this decree, on due notice to all the other parties in interest, for such further directions as may be necessary; and so much of the decree of the vice chancellor of the first circuit as is inconsistent with this decree is reversed.”