30 Barb. 312 | N.Y. Sup. Ct. | 1859
The will in question is not altogether unambiguous in its terms. It becomes therefore important to determine the intent of the testator, before we attempt to settle the other question, whether this intent, as expressed in the will, is consistent with the rules of law.
The clause of the will more particularly in controversy devises a part of the homestead farm to his three grandchildren, Erastus, Mary Elizabeth and John Hover, share and share alike, but subject to the payment of debts and legacies and to the conditions thereinafter stated. These conditions are, that they being minors, are not to talce said estate until they severally arrive at the age of twenty-one years; with a further provision that in case of the death of either before that age and without issue, the survivors or survivor shall take such share ; and in case of the death of all under age and without issue, it shall go to the testator’s son John, his heirs and assigns for ever. One of the principal questions discussed in the case was whether this devise conferred upon the grandchildren a present and vested interest, or only a future and contingent one, depending upon their attaining the age of twenty-one. But for a single expression there would seem to be no doubt
But there is another clause of the will which demands particular notice. The testator directs that during the minority pf the grandchildren, his son John shall take charge of
These provisions do not contain any express and specific devise of the estate. They may possibly be executed by persons charged with a mere power or authority over the estate, but they are more consistent with those large and discretionary powers conferred upon trustees, and strongly partake of the qualities and characteristics usually vested in functionaries of that description. Besides, in order to execute the authority conferred by the will, it is essential that John should have the possession of the lands, and the control of and the title to the rents and profits of the estate. And by statute, every such person shall be deemed to have a legal estate in the lands. (1R. S. 727, § 47.) And powers very similar to, if not absolutely identical with those contained in this instrument, have been held to create a trust and to vest a legal title in the trustees by implication, to enable the trustees to collect .and receive the rents and profits and income of the property, apply them to the purposes of the trust, and accumulate the surplus, as directed by the will. (Bradley v. Amidon, 10 Paige, 241, 2. Leggett v. Perkins, 2 Comst. 305. Brewster v. Striker, Id. 30 to 36. Leggett v. Hunter, 19 N. Y. Rep. 445.) There was, therefore, a trust created by the terms of the will, in the testator’s son John, and be must be held to have been intended
The terms of the devise, therefore, as expressed in the will, appear to be as follows: 1. A devise of the real estate to the three grandchildren in fee, to take effect in possession, on their arriving at the age of twenty-one years. 2. In case they die before twenty-one, and without issue, a devise over to the survivor, and if they all die, to John, (the testator’s son,) in fee. 3. A devise of the fee in trust, byimplication of law, to John, during the Minorities of the grandchildren, and until the youngest grandchild shall arrive at the age of twenty-one years. Let us now see how far these provisions are consistent with the rules of law.
But for the restrictive clause in the will, that the infant devisees should not take the estate until they came of age, and the trust estate created by the will durmg the intervening period, the devise to them would take effect immediately, and would vest in them a determinable fee. (Maurice v. Graham, 8 Paige, 483. Pond v. Bergh, 10 id. 140. Hunter v. Hunter, 17 Barb. 29. Christie v. Phyfe, 19 N. Y. Rep. 344.) But, as before stated, the clause in question postpones the vesting of the estate in possession until the devisees reach their majority. And another clause vests the estate, in the mean time, in John Hover, the son of the testator, as trustee. This estate is inalienable. Its alienation would be in contravention of the trust, and is forbidden by statute. (1 R. S. 730, § 84, [65].) The interest of the beneficiaries in the rents and profits is equally inalienable. (§ 82, [63].) _ There being, then, no persons in being by whom an absolute fee in possession can be conveyed, there is a suspense of the power of alienation, according to the statutory definition. (1 R. S. 723, § 14.) This suspense necessarily continues for the minorities of the three grandchildren. The trust continues for that length of time; at least, such is my understanding of the terms of the will. It is therefore
This trust is not saved as a valid trust, as the defendants’ counsel suppose, by the provisions of section 55 of 1 Revised Statutes, 728. That shows the trust to belong to a valid class, but nevertheless requires it not to violate the law against perpetuities. As this has been shown to violate that law, it must fall.
The remaining question is, mush the whole devise fail, including the illegal trust, as being, so closely interwoven that they cannot be separated without doing violence to the testator’s intentions; or may the principal devise to the grandchildren, and in a certain contingency, to his son John, be preserved as carrying out the general intent of the testator. The courts have latterly leaned more and more to the preservation of such parts of a will as may be separated from the rest without a disruption of the whole. This is done with a view to conform, as far as possible, to the wishes of the testator ; for, although it may be usually assumed that each part of a will is made somewhat with reference to all the rest, yet it is every day’s practice, and a well established rule, that where the devises are distinct, or one part can be safely detached from another, without disturbing the relation or continuity of the whole, it should be done. This rule was held to be sound, and was practically acted upon by the court of appeals in the late case of Savage v. Burnham, (17 N. Y. Rep. 561.) The same rule has been enforced in several other cases. (Darling v. Rogers, 22 Wend. 483. Kane v. Gott, 7 Paige, 521; S. C. 24 Wend. 641. Depeyster v. Clendining, 8 Paige, 295. Haxton v. Corse, 2 Barb. Ch. Rep. 506.)
In the present case, I am of opinion that the same course should be pursued. The main intent of the testator was to give this farm to his grandchildren, and to put it in their possession at an age when they would have the requisite judgment to manage and control it. This purpose can be effect
There should, therefore, be a decree upholding the main devise to the infant grandchildren, and to the testator’s son John, and declaring that it is to take effect during their respective minorities, as well as afterwards; avoiding the trust or direction to John to manage and control the estate and receive and apply the avails of the estate during the minorities of the grandchildren; upholding the provision for the residence
I have had some difficulty on the question -of costs. It is becoming quite common to institute suits for the judicial construction of wills, and other instruments in which no other relief is sought than such construction, and in which the parties prosecuting them have no connection with, of interest in, the trust therein created, and have nothing in any aspect of the case but a mere legal estate in the premises. Of such cases a court of equity has no appropriate jurisdiction. The jurisdiction, if any, arises under tíre head of trust, unless some other recognized modes of relief, such as the taking and settling of an account, is coupled with a prayer for the construction of the written instrument. (Smith v. Smith, 4 Paige, 271. Mitchell v. Blain, 5 id. 588. Wood v. Vandenburgh, 6 id. 277. King v. Strong, 9 id. 94. Bowers v. Smith, 10 id. 193.) In the last case, it is held that an heir at law of a testator, or a devisee who claims a mere legal estate in the property, where there is no trust, is never allowed to come into a court of equity for the mere purpose of obtaining a judicial construction of the provisions of the will. (10 Paige, 200.) The plaintiffs are nearly ip that position, and are, besides, wholly unsuccessful in the matters litigated, and the objection to the institution of this suit is talren in the answer of the principal defendants. Under such circumstances it does not seem equitable to charge the residuary estate, which passes by the will to the infant grandchildren, with the entire costs of the litigation. ¡Nevertheless, the suit was probably commenced in- good faith, and in conformity with what was supposed to be the usual practice. It is a fit
Wright, Gould and Hogeboom, Justices.]