47 Barb. 257 | N.Y. Sup. Ct. | 1866
Though nine several questions are submitted, arising upon the provisions of the will of Noadiah Moore, only one of them presents a question of any difficulty; and we proceed first to the examination of that question.
By the 4th and 5th clauses of this will, the testator devises certain real estate separately to his sons, Pliny H. Moore and Samuel W. Moore, and also to his two daughters, which is sufficiently and definitely described, in absolute terms, in fee. As to these devises, or as to either of them, no ques
It is needless to say that this is an unusual and an extraordinary provision. Our only duty is to give to it its legal effect, if any it has, and if in the construction we shall give, it shall turn out that the intention of the testator is either illegal, or incapable of being carried into effect, by reason that the proper construction of the language he has employed is. in violation of the provisions of the statute, or of the rules of the common law, we can not follow his intention, however desirable it might be, morally, to attempt his theory of reformation of the habits of the intended beneficiary.
It is clearly apparent that the testator intended to create an inducement to affect the moral well being and character of his son Pliny, and intended by this provision to change the prior absolute devise to his said son in fee, to a trust estate, either for the period of three years, commencing at his (the testator’s) death, and-to be changed back again into an estate in fee, upon a condition subsequent, dependent
The first question that arises under this provision is, would such a trust, if created in the most apt and appropriate language, be a valid trust ? It is now, since the Bevised Statutes of 1830, too well settled to leave any thing open for discussion, that an express trust in lands can not be created, except for the purposes expressed in the statute of uses and trusts. (1 It. S. 728, 729, §§ 45, 55 ;) and when a trust is attempted to be created for a purpose not enumerated in the 55th section of that statute, no estate whatever vests in the trustees. (Selden v. Vermilya, 3 Comst. 526.) The provision in this will, for that purpose, does not come.within the letter or spirit of any one of the objects specified in that statute; besides it is, I think, indispensable to the creation of a trust, that authority to perform the act should be delegated to the trustee by some person having the authority to do so. (Selden v. Vermilya, supra.) No such authority has been conferred or delegated in this case. There is no devise of this estate to the executors, or to any other person as trustee; nor any power in trust, conferred expressly upon any person. Neither the object, or use of the trust, during the period of three years from the testator’s death, is declared or provided for; nor is any direction or power given to any one to receive the rents and profits, or take the possession of the estate.
But the attempted trust is, I think, void for another reason. It may, if it commence at the testator’s death, continue for the period of three years, by the express terms of this pro
In all the adjudicated cases upon this statute, the courts have uniformly held that the period of suspension of alienation could not be measured by time alone; that life must in- some form be the measure of the period of suspension. (Hawley v. James, 16 Wend. 123-172. 7 Paige, 25; S. C. 20 Wend. 464. 5 Sandf. 174. 3 Seld. 547. 3 Denio, 53.)
The period of three years may, by possibility, exceed the length of two lives in being. A trust for that period is therefore void. The trust being void for the reason that the po.wer of alienation is illegally suspended, all remainders or future estates, vested or contingent,1 limited of dependent upon that trust, or upon the will or discretion of the execu-? tors, are void also.
I am not able to see that this provision is valid as a power in trust. Powers in trust, like trusts themselves, require that the authority should be expressly delegated to the person who is to execute it. (3 Comst. 526.) This certainly has not been done. So too, it is settled that a power in trust to make partition of lands at the end of a period fixed . as the duration of a trust estate, which of itself is invalid, is also void. (Hone’s executors v. Van Schaick, 20 Wend. 564.) That is exactly this case, if the trust was to begin at the testator’s death. In either view of this provision, therefore, whether it is claimed to be the creation of a trust estate, or a power in trust, it is equally void, it is void for
The remaining question upon this point of the case is, in whom now is the title to the estate devised to Pliny 2ST. Moore in the fourth and fifth clauses of the said will ?
I think, from the language of the recital and direction in the seventh clause of the will, by which it seems the trust was to be created, that the testator intended the trust to begin at his decease. By the most absolute form of words, the devise of this estate was, in the former clauses of the will, given as an estate to Pliny Moore, in fee. And by the language used in the subsequent recital and declaration, this devise was so far annulled as absolutely to destroy the prior devise in possession for the period of at least three years ; but with a condition that the trust should end, and the fee be restored at the end of that time, if his son Pliny should reform, and continue a sober, industrious and moral man for the space of two years, and give to' the testator’s executors satisfactory evidence and assurance of a thorough reforma
So that whether the trust be deemed void,- and as not being in the way, or having any force to defeat the estate absolutely devised in legal .terms ; or, be deemed vested in him, subject to be defeated by condition subsequent, we are of opinion that at this time the estate devised to Piny "S". Moore, by the fourth and fifth clauses tif the will, is in him, and is not now defeated by the recital and statement following the seventh clause of the will, above set forth.
The other questions arising under the will are found in the decree, and do not require discussion.
James, Rosekrans, Potter and Bockes, Justices.]