89 N.Y. 225 | NY | 1882
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *235 By section 15, of the article of the Revised Statutes relating to the creation and division of estates in land (1 R.S. 723), the absolute power of alienation cannot be suspended by any limitation or condition whatever, for a longer period, than during the continuance of two lives, in being at the creation of the estate, except in a single case, not material to the present inquiry. What shall constitute such suspension is declared in section 14. Such power of alienation (the section declares), is suspended, when there are no persons in being, by whom an absolute fee in possession can be conveyed. The rule declared in this section, constitutes, under our statute, the sole test of an unlawful perpetuity. Construing sections 14, and 15, together, it is manifest, that where there are persons in being at the creation of an estate, capable of conveying an immediate and absolute fee in possession, there is no suspension of the power of alienation, and no question under the statute of perpetuities arises. But the statute does not prohibit all limitations of estates, suspending the power of alienation. It permits them, within the restriction of two designated lives in being at their creation, and a minority. If the suspension of alienation is effected by the creation of future contingent estates, the validity of the limitation depends upon the question, whether the contingency upon which the estates depend, must happen within the prescribed period. If the suspension is effected by the creation of an express trust to receive the rents and profits of land, under section 55 of the statute of uses and trusts (1 R.S. 728), the lawfulness of the suspension, depends upon the question, whether the trust term is, in respect of duration, lawfully constituted. But the mere creation of a trust, does not, ipsofacto, suspend the power of alienation. It is only suspended by such a trust, where a trust-term is created, either expressly or by implication, during the existence of which, a sale by the trustee, would be in contravention of the trust. Where the trustee is empowered to sell the land, without restriction as to time, the power of alienation is not suspended *236 although the alienation in fact may be postponed, by the non-action of the trustee, or, in consequence of a discretion reposed in him, by the creator of the trust. The statute of perpetuities is pointed only to the suspension of the power of alienation, and not at all to the time of its actual exercise, and when a trust for sale and distribution is made, without restriction as to time, and the trustees are empowered to receive the rents and profits, pending the sale for the benefit of beneficiaries, the fact that the interest of the beneficiaries is inalienable by statute, during the existence of the trust, does not suspend the power of alienation, for the reason, that the trustees are persons in being, who can, at any time, convey an absolute fee in possession. The only question which, in such a case, can arise under the statute of perpetuities, is, whether the trusts in respect to the converted fund, are legal or operate to suspend the absolute ownership of the fund, beyond the period allowed by law. If the limitation of the interests in the proceeds, is illegal, the consequence might follow, that the power of sale given to accomplish the illegal purposes, would be void. (Van Vechten v. Van Veghten, 8 Paige, 124.)
It is strenuously insisted by the counsel for the respondent, that the testator intended the will in question to vest the legal title to his residuary real estate in the executors, and that this is the legal effect of the power of sale conferred by the fourth section, in connection with the clause in the eighth section, whereby he directs his executors to divide all the "rents, income or profits from any estate until it is finally distributed semi-annually among those to whom the bequests are made, in the proportion that the amount of the said bequest bears to the said net income or profit." There is no express devise to the executors of the legal estate; but the direction that they shall semi-annually divide the net income and profits, until the final distribution among the several distributees carries with it, by natural implication, an authority to receive the rents, income and profits meanwhile, to enable the executors to perform the duty of dividing them among the several beneficiaries. The testator contemplated that the real estate might not *237
be sold for some time after his death, for by the first clause in the eighth section, he authorizes the executors "in view of the present great depression in real estate," to postpone the sale in their discretion, but for a period not longer than three years after his decease. The presence of the legal estate in the trustees pending a sale, if not absolutely necessary to enable them to perform the duty imposed upon them, to divide the net income and profits, is a convenient and natural arrangement, and the vesting of the legal estate in the trustees by implication, would not, as we construe the will, defeat or disturb any of its provisions, but would be in harmony with its scheme and dispositions. The general rule, that to constitute a devise of an estate by implication, the intention must be clear, is well settled. (Jarman on Wills, 465.) The rule has especial application, and is most stringently applied, where a beneficial devise by implication is claimed, which would divest the title of the heir if the claim should be admitted. This rule has also been frequently applied in cases involving questions under our statute of uses and trusts, where a trust estate, if held to result from the language and dispositions of a will, would render it illegal and void. In such cases the courts, for the purpose of sustaining the will, construe an authority and duty conferred or imposed upon executors, where it is possible to do so, as a mere power in the trust, although the duty imposed, or the authority conferred, may require that the executors shall have control, possession, and actual management of the estate. (Downing v. Marshall,
But it is unnecessary to determine whether the executors took under the will in question, the legal title to the real estate, for in the view we take of the will, there was no suspension of the power of alienation, whether the executors took a trust estate, or were simply donees of a trust power. In either character, whether as trustees or as executors only, they could at any time from the moment of the testator's death, have conveyed an absolute fee in possession. The suspension of the power of alienation of the real estate is supposed to result from the direction of the fourth section of the will, that the sale of the testator's real estate, situate in the State of New York, should be made by the executors at public sale in the city of New York, after three weeks' notice by publication in four daily newspapers of the city, and also from the provision in the eighth section that "in view of the present great depression in real estate," the executors might exercise a discretion as to the time of sale not longer than three years after the testator's death. The direction that the real estate in this State, should be sold at public sale, on three weeks' notice, was a prudential arrangement to insure a fair sale, and prevent a sacrifice of the property, and in no proper sense suspended the power of alienation. The direction for notice was a mere incident to the conversion of the property, and the requirement was both usual and reasonable. The statute of perpetuities is not violated by directions which may involve some delay in the actual conversion or division of property, arising from the necessity of giving notice, or doing other preliminary acts. (Manice v. Manice,
We are also of the opinion that the discretion vested in the executors to delay the sale of the real estate not exceeding three years, did not create a trust term for any period of time and involved no suspension of the power of alienation. The discretion, as the testator declares, was given in view of the depression in real estate. In the absence of any provision in the will, the executors would have a reasonable discretion as to the time of sale, to be exercised in view of all the circumstances. The power of sale was not fettered by the discretion given by the will. The executors could sell and convey the land at any time, by a perfect title. It may be conceded that they were bound to exercise their discretion in good faith, and to delay the sale if the interests of the beneficiaries seemed to require it. But there can be no unlawful perpetuity unless the power of sale is suspended, and the mere fact that it might be the duty of the executors, in the exercise of their discretion, to postpone the sale to await a more favorable market, does not, we think, constitute such a restraint as suspends the power of alienation within the statute.
The remaining question on this branch of the case relates to the limitation of interests in the proceeds of the sale to be made by the executors. There was, by the will, an absolute conversion of the real estate into personalty, as of the time of the testator's death, and the several distributees took their interests as money and not as land. (Kane v. Gott, 24 Wend. 641; Stagg v. Jackson,
We think the sixth section of the will is valid, within the rule that a testator may direct that the amount of a legacy once *242
completely fixed by the will itself, shall be diminished by events actually occurring as matters of fact, but not by an unattested testamentary writing, disconnected from any actual occurrence. (Langdon v. Astor,
These views lead to an affirmance of the judgment.
All concur, except TRACY, J., absent.
Judgment affirmed.