Thompson v. Clendening , 1 Sand. Ch. 387 ( 1844 )

The Assistant Vice-Chancellor.

The important question in this case, is upon the validity of the devise of the testator’s real estate to his executors, upon the trusts expressed in the will. They are to receive the rents and profits, to lease the lands, and to improve them by building and otherwise, and to mortgage them, if necessary, for any of the purposes of the will. They are not authorized to sell the real estate for any purpose, until some one of the four minor children attains the age of twenty-one years. They are required to sell and convert it into money, when the youngest of the children living shall have attained that age. And they are clothed with a discretionary power to sell all or any of the real estate, on the arrival of any one of the children at lawful age, if in the opinion of the executors it shall be advantageous to do so, and the conduct and character of such child should in their opinion justify them in so doing. The whole estate was to be kept accumulating as far as practicable ; and whenever such sales were made, the executors were to pay and distribute all the rents, income, and proceeds of the sales, to and among the four children, and the issue of such as were dead.

It is contended by the complainants, that these provisions of the will contravene the statute which limits the inalienability of estates, and that they are therefore void.

The result of the devise undoubtedly is, that in the event of the three elder children dying during their minority, the alienation of the estate would be suspended beyond the limit of two of the lives in being that were principally interested in the trust. So in the more probable event that the two elder children should die during their minority, the effect would be the same. Should all the children live till one becomes of age, the suspension of the power to sell might then be terminated, in the discretion of the trustees; and they may all live until the youngest of the four attains his majority, and the estate must then be sold.

The mere statement of these various contingencies, (and I have mentioned but a few of the combinations of events which might reasonably be suggested,) will suffice to show that the determination of the suspended power of alienation, depends partly upon the four lives of the children, and partly upon the time when the youngest surviving child shall become of age ; and its utmost limit, is the number of years interveningbetween the death of the testator and the date when the youngest child, if he lives,- will attain the age of twenty-one years. The latter period is the only one which admits of any definite limitation; because, if we rest it upon the event of the youngest survivor becoming of age, we place it upon a contingency that, may never happen, if he should die while a minor, but after his brothers and sisters were of age, the power to sell would become operative immediately.

The case appears to me, after full consideration, to fall directly within the decision of the Court for the Correction of Errors on the will of William Jamés. Hawley v. James, (16 Wend. 61.) There the trust term was to continue until the youngest of the testator’s children'and grandchildren, living at the date of the will and attaining- the age of twenty-one years, should have attained that age.

At the date of the will, the testator had thirteen children and grandchildren1 who were minors, one of whom wanted ten days of being a year old at the testator’s death. The duration of the trust term therefore, could not in that case, continue beyond twenty years and ten days from the death of Mr. James. Its termination might occur in a much shorter time by the deaths of the younger portion of the thirteen. Thus like the case before me, it depended upon the lives of the beneficiaries,, bounded as its utmost limit, by the majority of the youngest surviving child.

The Court of Errors held the limitation to be void, as repugnant to the fifteenth section of the statute relative to the creation o and division of estates.

Mr. Justice Bronson, in his learned and most able judgment in Hawley v. James, said that “the term was limited by the continuance of the minorities, but as those might cease by death as well as by lapse of time, it necessarily depended in part on the continuance of life. There is no possible form in which the case can be fairly stated, without showing that the duration of the term depended upon lives, and' as there were thirteen minors in the class, it depended on more than two lives. This trust then might continue and the power of alienation be suspended for a longer period than the statute allows.” (pp. 167, 168.)

He says farther, “ the question is, not whether the trust probably will, but whether it can transgress the statute rule.” “ The statute has given- lives as the measure, and nothing else, (p. 171.) Life must in some form, enter into the limitation. No absolute term, however moderate, or however short, can be maintained ; and no uncertain term, the utmost limit of which is not bounded by lives, can be sustained.”

The same result was reached by the Chief Justice in a well reasoned argument, and he thus states his conclusion : “ The trust term is void,. 1. Because it is an estate limited to depend upon thirteen lives, as well as upon minorities, and may postpone the power of alienation for a longer period than is allowed by law. 2. That if it should be considered properly, a term for 20 years and 10 days, determinable upon thirteen minorities, it is still void because the power of alienation may be suspended for more than two lives of the thirteen individuals upon which it depends; and 3. Because the trust term is not limited to depend upon one or two specified lives in being within the true construction of the 15th section; the only measure for the suspension of the power of alienation since the adoption of the Revised Statutes, being a life or lives,” (p. 133,134.) Two other members of the court of last resort, pronounced opinions concurring with those which I have stated; and the judgment of the court in that case, appears to have established that by the 15ih section of the statute referred to, the suspension of the power of alienation must be limited by two lives in being, designated either by naming two persons, or as the two first lives which shall fall, in a class of several individuals named or definitely described. That the limit may be for any term of years, or on any contingent event, expressing that it is on condition that the two lives shall so long continue; but it cannot be made upon an event or condition which by possibility may suspend the power of alienation beyond the two lives specified. (See decree of the court in Hawley v. James, (16 Wend. 274.)

The Chancellor, in the case of Gott v. Cook, (7 Paige, 521, 540,) says that the decision in Hawley v. James, settles the construction of the statute to be that an estate is void in its creation, if it is so limited that it can by any possibility continue beyond two lives in being at the creation of the estate.

(And see Van Vechten v. Van Veghten, 8 Paige’s R. 104, affirmed in the Court for the Covv'ction of Errors, in December, 1841.)

In Hone’s Executors v. Van Schaick, (7 Paige’s R. 221,) the Chancellor stated the result of the decision in Hawley v. James, substantially as he did subsequently in Gott v. Cook.

The Court for the Correction of Errors, affirming the Chancellor’s decree in Hone v. Van Schaick, (20 Wend. 564,) decided that a limitation for twenty-one years, was contrary to the statute; thus again reiterating the principle that the estate must be limited upon lives, and upon nothing else.

Concurring with these various expositions of the principle which must control in suspensions of the power of alienation, and re-affirming the well settled rule in England, is the recent case of Ibbetson v. Ibbetson, (10 Simons, 495,) affirmed by Lord Cottenham in 5 M. & C. 26. The trust there was of plate, paintings, furniture, &c., and they were to vest absolutely in the first tenant in tail of the mansion house, &c., who should become twenty-one years of age. It so happened that the first tenant in tail, under the devise of the manor, became of full age, and he was living at the testator’s death.

This, the court said, was an accident, which could no.t affect the construction. That the estate must be certain so as to vest within the time allowed by law, in the person described. And they held the bequest void for remoteness, because it might possibly suspend the vesting of the property beyond the period allowed by láw.^(a)

The learned counsel for the defendants in an ingenious argument in support of the will, contended that the devise was of a present estate, and therefore not within the fifteenth section of the statute relative to the creation of estates.

The Chancellor decided against this constiuction in the Lorillard Will Case, Coster v. Lorillard, (5 Paige’s R. 219.) The fifteenth section is not restricted to future estates, and if it were, the 36th section of the same article, places trusts for accumulation, upon the same footing as future estates.

The 17th and 19th sections were also referred to as sustaining the defendants’ construction. But those sections apply to life estates in remainder, or to remainders limited upon estates for life, and are not applicable to the devises contained in the will in question.

In reference to the direction to accumulate, it may be observed farther, that its limit as to time is taken away by the avoidance of the principal trust.

There is another consideration applicable to this, as well as to the defendants argument that with the aid of a court of equity, the real estate is alienable by the trustees. The estates of the minors, except in sufficient of the property or its income to support and educate them, is not only future, but uncertain. If either of them dies before the arrival of the period fixed for a sale and distribution, without issue, the survivors will take his proportion.

Therefore, there would be no person in esse having a vested interest in the bulk of the estate, to join in its sale, even if the court should disregard the inhibitory provisions of the statute relative to uses and trusts. And an accumulation for persons not in being when it commences, and therefore not specified, does not appear to be permitted by the statute.

The devise to the trustees, in the case before me, must therefore be declared void as to the trusts for the four minor children and the trust for accumulation. As this result lets in Mrs. Thompson to share as an heir at law, she must elect between such share and her legacy under the will.

There is a power to mortgage contained in-the devise of the real estate to the trustees, which may be sustained for the benefit of the widow as a legatee, and to satisfy the charge made upon the whole estate in her favor by the will. (1 Rev. Stat. 728, § 55, subd. 2.) This is, however, a mere power in trust, which does not interrupt the descent of the real estate to the heirs at law. And in the event of a partition of the lands, and the substitution of some other satisfactory provision for the widow’s support, this trust power may be extinguished. This was done in the partition of the estates of Hannah Murray and Hannah L. Murray, by the decree of the Chancellor, operating upon powers in trust which were much more ample than those in the will of Carmichael. Murray v. Ogden, (April 19, 1842; 2 Barbour’s Notes of the decisions of the Chancellor, p. 23.)

The will does not clothe the executors with any power to sell the real estate, except for the void purposes already mentioned.

The direction for a conversion is remote in point of time, and the devise contemplates the continuance of the realty in specie, for a long period, as is shown by the provisions relative to renting, improving, and building upon the lands. I have, therefore, considered the property as real estate.

If it were to be treated as converted into personalty at the death of the testator, the result would be the same, unless I have erred in my views as to the contingency of the gift to the children, and as to the uncertainty of the persons for whose benefit the accumulation is to be made. For by the Revised Statutes, future estates in personal property, and trusts for its accumulation, are subjected to the same restrictions as similar estates and trusts in lands.

As to the bequest of the residue of the personal property to the four minor children. The sixth item of the will is a positive direction that the whole estate of the testator be kept constantly accumulating as much as can be, until the sale and division of his real estate as before provided.

This accumulation includes the personal estate.

The bequest of that estate to the children is further qualified, by the provision that it is to be paid to and distributed among them at the time of the sale and distribution of the real estate, Then the issue of the deceased children were to take the portion of their parent. The authority to the executors to apply the personal property towards building on the real estate, tends the more effectually to suspend its absolute disposal.

Taken together, the will directs all the personal estate except what is used in building and improving the lands, to be accumulated until the time fixed for dividing the lands, and then to be divided among the children and their issue. When the eldest child shall become of full age, he cannot alien or bequeath the fourth part of the personal property, because if he should die before the youngest becomes of age, that fourth part goes to his issue, who take under the will, and not from him. So of the second and the third child of the testator. And until the youngest of the four children becomes of full age, which may be after the death of two of the elder children, the ownership of the residue of the personalty will not be ascertained so that it can be absolutely disposed of.

The personal estate is therefore in the same situation in this respect, as the lands devised; and as I have already stated, the will suspends the power of aliening the lands beyond the limits prescribed by law.

The same limitation is imposed upon the suspension of the absolute ownership of personal property. (1 Rev. Stat. 773, § 1.) And the bequest of the personalty under this will must be avoided with the devise of the lands.

The provision for the widow is a charge upon the real estate in the hands of the heirs, for which suitable protection must be afforded by the decree.

The complainants are entitled to a decree accordingly, with the usual reference to a master in partition causes.

(a) To the same effect, see Boughton v. James, (1 Colly. Ch. Rep. 26.)