Mason v. Mason's Executors , 2 Sand. Ch. 432 ( 1845 )

The Assistant Vice-Chancellor.

The most formidable objection made to the validity of the devise in trust, is that it vests one-half of the estate in the trustees for the payment of annuities to more than two persons for their lives, and that the power of alienation is thereby suspended for more than two lives in being at the creation of the estate.

It is insisted in behalf of James and Henry Mason, that the devise vests the whole of the half part of the estate, in the trustees, as an entirety, upon the whole of which the annuities are charged, and which cannot be relieved from that^charge, until all those annuities are accomplished.

The trustees contend, on the other hand, that the testator intended to vest the trust fund in them, as four several and distinct equal eighth parts or shares of his estate; each eighth part being chargeable with one annuity and vesting absolutely on the cessation of such annuity ; and that there is no charge upon either of those eighth parts, for any of the other annuities.

If the former be the true construction, the objection to the devise must be sustained; for there are four life annuities certain, created by the will, and three more which are contingent.

If the devises in trust are to be deemed separate and distinct as to each eighth part of the estate, independent of the others, the annuities do not suspend the alienation of such part beyond the time allowed by law. Because, assuming that the annuities are inalienable, as is claimed by the counsel for Henry Mason, there are only two successive annuities attached to either of the eighth parts separately considered; and upon the termination of the second annuity, at all events, the estate in such eighth part will vest absolutely in possession in those to whom the capital of that eighth part is given by the will. The estate in the eighth part of John Mason, Junior, will vest absolutely upon his death ; and so the eighth parts of James and Henry, if they survive their respective wives, will vest in like manner upon their decease ; and Mrs. Alston’s eighth will vest in her lifetime, if she survives her husband.

In order the better to ascertain whether any portion of the trust estate must necessarily remain suspended during the continuance of more than two lives, I will collate the clauses in the will which are thought to bear upon the question.

The half part of the estate is given entire to the trustees, for the uses and purposes declared.

The trustees are to rent, invest and improve the same, and receive the income.

By and out of the income, or so much of it as may be necessary for that purpose, they are to pay the four prescribed annuities, to Mrs. Alston, John, James and Henry. Each annuity is to be paid in two equal instalments, semi-annually, and to continue during the respective lives of the four annuitants, except as' to Mrs. Alston in the event of her surviving her husband.

If he survives her, the annuity of $3000 is continued to him for life; and the annuities to James and Henry are continued in' like manner to their respective widows, in case of their leaving their wives surviving.

The trustees are clothed with a discretionary power to increase the annuities to those three children respectively, but the power does not extend to the widows of the sons, or to the husband of of Mrs. Alston.

Should the clear net income of the trust fund, that is, of the one-half part of the estate, exceed the annuities, the surplus in regard to three-fourth parts thereof, is directed to accumulate equally for the benefit of the children or other issue of Helen, James and Henry respectively, during their respective minorities, and to be paid to them respectively at twenty-one ; the children &c. taking by representation, and not per capita.

While Helen,' James and Henry are without issue living, the surplus of the income of their “ said trust shares,” after satisfying the annuities to them or to the surviving husband of Helen, and the surviving widows of James and Henry, is to be paid to the three elder daughters, and to George Jones, equally, and to their respective issue by representation.

Mrs. Alston, from the death of her husband, and her issue if any, while both are living, and the issue if any, of James and Henry, are to participate in the division of the last mentioned surplus income.

Upon the death of Henry and James without issue, the testator gives the “ two equal fourth parts,” of the half of his estate, (subject to the annuities to their widows,) to his other children (except John) and their issue. And if one of those sons dies without issue, “ the one-fourth part” of the half of the estate is divisé Me in the same maimer, including in the distribution, the issue of the other son.

These provisions are brought in favor of the argument that the testator intended to keep the half part of his estate entire, as long as any of the annuitants survived.

There are other provisions interspersed with these, which tend to an opposite conclusion. Thus upon the death of Mr. Alston, leaving Helen surviving, her annuity ceases; and the testator thereupon gives to her and her heirs, executors, administrators and assigns for ever, the one equal undivided fourth part of the half part of the estate which was vested in the trustees.

If Mrs. Alston should die before her husband, the testator in. that event, gave the last mentioned fourth part of the trust fund, subject to the annuity to Mr. Alston, to her issue absolutely.

The division of the half into lesser parts, for the active purposes of the trust, is recognized in the direction to accumulate the surplus income, for the benefit of the issue of Helen, James and Henry. The direction is limited to “ three equal fourth parts” of the trust fund, and omits the surplus arising from the fourth part subsequently disposed of in connection with the annuity to John; but still the surplus upon this clause, is to be ascertained after deducting the three annuities. Then in the next paragraph of the will, where the testator disposes of the surplus accruing while the annuitants are without issue living, he speaks thus, “ And with regard to the said trust shares of the said Helen Alston, James Mason and Henry Mason, so long as they may severally be without issue living,” &c. He thus treats the three equal fourth parts, and the trust shares, of those three children, as synonymous terms.

Upon the decease of his son John, the testator gave “ the one equal fourth part” of the half part of his property, together with the surplus of the income thereof during his life after satisfying his annuity, to the three elder daughters, to Mr. Jones, Mrs. Alston or her issue, and to the issue of the sons; in the same manner as I have described in reference to the surplus of income while the other three annuitants were childless.

The devise upon the death of James and Henry, is in these words:

“ And upon the deaths of the said James Mason and Henry-Mason respectively, I give, devise and bequeath the two equal fourth parts of the said remaining half part of my property and estate, both real and personal, to their respective issue, such issue taking share and share alike, by representation, and not per capita, subject to the said annuities to the widows of my last named two sons, should such widows survive them.”

- Following this, is the provision before stated, in the event of one or both of these two sons dying without issue; by which if one dies leaving no issue, the one-fourth part of the half of the estate is given over to the other branches of the family, including the issue of the other son.

It is undoubtedly true, that the circumstance of the four equal eighth parts being given to the trustees by the description of K the remaining equal undivided half part1 of all the estate, is comparatively unimportant in determining the nature and extent of the interests in the various portions which make up that half of the estate. And I am not disposed to attach much weight to the argument arising from the joint bequest, and the union of the words in which it is made, except in connection with some union of the things given thereby. A different rule as to the effect of such general words, would drive testators to intolerable prolixity in wills, so that where provisions were to be made for eight children by a trust for each, there would needs be a separate bequest of each eighth part in turn, with a repetition as to each of all the trust clauses and powers, and the disposal of the fund.

The import of the general words used, must be ascertained upon a view of the whole will, and of the effect of the various dispositions sought to be made by the testator.

I should have no difficulty in holding that this devise was several and distinct, as to each eighth part constituting the half given in trust, if the disposition of the whole property had been equal, to and among the eight children and their respective descendants. I mean, equal independent of the difference made in giving the four eighth parts first mentioned in the will, absolutely, and in bestowing only partial life interests in the income, upon John, James, Henry and Mrs. Alston. The latter discrepancy would have had no influence, if Henry and his issue, for instance, were unitedly to receive as much of the estate as Mrs. Hamersley and each of her elder sisters.

But the testator has departed essentially from an equal division of his property amongst the several branches of his family.

To his daughters Mary, Rebecca, and Sarah, and to the children of his daughter Serena, (to the latter together and in connection with the life estate of their father,) he gave in the first instance, each an equal eighth part of his estate. Mrs. Alston and her family, provided she had children living at the death of the testator and they survived her, (but not otherwise,) would receive another equal eighth part. While the three sons of the testator were restricted to the annuities for their lives, and the whole surplus of income arising from two-eighths of the estate as long as they remained childless, would be divided amongst the five first named branches of the family; and as to the other eighth part, the surplus would in no event enure to the benefit of the annuitant. To illustrate this inequality, let me take the facts as they were at the death of the testator, estimating the assets from the uncontradicted statement in the bill.

James and Henry Mason then had no children; Mrs. Alston had one child living. The income of the estate, I will assume at $40,000. At the outset, the daughters Mary, Rebecca and Sarah, and the son in law George Jones, would receive each $5000 a year in respect of the absolute gifts to them. Mrs. Alston would take her annuity of $3000; and a further sum of $2000 a year would be put to accumulate for her child. James and Henry would receive their annuities of $2500 each,"and John his annuity of $2000.

The remaining $8000 of the income of the estate, would be divided equally between Mary, Rebecca, Sarah, George Jones, and the child of Mrs. Alston.

Thus the three daughters first named would each take $6600 annually, and Mr. George Jones the same. Mrs. Alston would receive $3000, her child $1600, and $2000 more be accumulated for the latter. While James and Henry would take $2500 each, and John $2000. In other words, the five daughters and their families would receive $33,000 a year, in the aggegate; and the three sons an aggregate of $7000 a year.

This inequality would continue, so loug as the sons remained without issue. On the birth of issue to either Henry or James, such issue while living, would participate in the benefit of the surplus in the same manner as the child of Helen Alston, and as to the family of such son, the inequality would cease. It would nevertheless continue in reference to the sons who remained without living issue, though with a disproportion somewhat lessened.

I do not refer in this place to the discretion vested in the executors for the increase of the annuities, nor to their subsequent liberal exercise of that discretion to the full extent of giving to James, Henry and Mrs. Alston the entire income of the respective eighth parts of the estate. The construction of the will is to be deduced from what might have occurred under its provisions, not what has been done. The executors might have left the annuities where the testator placed them, and the grant of the discretion therefore does not alter the effect of the will in reference to the point in question.

There is also an inequality in the provisions made for the four children who are the annuitants by the will, which is embarassing in distributing the trust half of the estate into four equal parts and considering each part as separately devised in trust.

The annuities are unequal, and the child of Mrs. Alston living at the testator’s death, partook with the families of the other daughters, in the surplus income from two eighths of the estate to the exclusion of Henry and James and their future issue; and the same child became beneficially entitled to the surplus from another eighth part of the estate, by way of accumulation,

I am now assuming that the trust for accumulation is unobjectionable, and treating the annuities as they are given by the will.

The birth and continuance of issue of James and Henry, will not remove this inequality between them and Mrs. Alston. She will still receive $500 a year more than either of her brothers; and her issue will be on an equal footing with theirs in respect of the surplus from, the three fourth parts of the trust fund, if that clause of the will is to have a literal construction,

The inequality between John and the others provided for in the trust, is not only greater than that of the other sons, but is to continue during his life.

These brief illustrations of the effect of the will, demonstrate that it does not distribute the estate into equal eighth parts, of which one entire part is designed for the exclusive benefit of each of the eight branches of the testator’s family.

This équal distribution is true of the half part which is given absolutely to the four branches which are first named in the will; but it is wholly untrue in regard to the four remaining branches of the family,

The testator does not contemplate in his will, any deficiency in the four annuitiés. From the magnitude of the estate, no deficiency is probable; but there are many contingencies of a kind which often occur, that may bring it about.

Let us suppósé that the trust fund or half of the estate, should a year hence, produce an income of only $8000, and that Henry and his wife should then be dead, leaving issue.

Under the clause of the will giving the annuities, Mrs. Alston would in that casé be entitled to $2400 for her annuity, James to $2000, and John to $1600.

Now if the trust fund be devised in separate eighth parts, the eighth part designed for Mrs. Alston and her family would in this event pay only $2000 for her annuity ; because on this corn struction, the eighth part held in trust for each of the four branches of the testator’s family, would become divisible and vest in the issue of each branch on the death of their parents, and Henry’s fourth part would have been withdrawn from the trust. So if Mrs. Alston should survive both of her brothers and their wives, and the income of one-eighth of the estate in a given year, should1 be only $2000. Is she to accept that sum in full for her annuity, or is she to receive $2400 which would be her proportion of the $8000 income arising from half of the estate ?

This cannot be answered by saying that she must make up her due proportion as well as all arrears, out of the income during those years when there is a surplus, There may be no such fruitful years, and the annuity must come out of the income. Besides, this is a question of strict right on her part, and she may justly insist, (upon the construction that the devise is entire,) that any surplus of income in other years shall enure to the benefit of her children as provided in the will.

In the will of Clendining, which was cited as a direct authority in favor of the position that the devise was to be construed as a separate trust in respect of each of the equal eighth parts of the property; there was no such inequality as exists in this case. (De Peyster v. Clendining, 8 Paige, 295. C. S. on appeal, 26 Wend. 21.) Although two of the children were to receive under that will, twice as much as either of the three others, yet the capital was distributable to their respective issue in the same relative proportions. It was therefore in effect, a bequest of two-sevenths of the residuary estate to trustees, in trust to pay Letitia the income during her life, and to pay the principal fund to her issue at her death; a like bequest of one-seventh for John Clendining and his issue; and so on of the shares of the other children. Thus there was no difficulty in construing the joint bequest of the whole property in trust, as separate bequests of the respective shares intended for each of the children and their respective issue. And the Chancellor held that the testator intended to suspend the absolute ownership in each share, no longer than the joint lives of his widow and the child entitled to the life interest in such share.

There is a direction for distribution in the will of Mr. Mason, on the death of each set of annuitants, and it remains to be seen whether upon the true construction of the will this direction must prevail under every contingency, and without regard to the annuities which may then be continuing and payable to the other annuitants. If such a construction can be maintained, the devise in question is relieved from the objection with which 1 set out. It then becomes what the defendants claim it to be, a devise in trust of four distinct and separate eighth parts, one of which is subject to the charge of an annuity of $3000, one to alike charge of $2000, and the others are subject to a like charge of $2500 each.

Now although the trust fund is created as being one-half of the estate, and given to the trustees as such, with a single and entire direction to rent and invest it, and receive and pay out the income of such half part, and not of any one-eighth part or any less than such half; yet it is perfectly plain that there is one quarter of the trust estate which is not subject to any charge that bears upon the other three quarters of the trust, and which is to be distributed upon the termination of a single life. This is the one quarter of the fund which is designed for John Mason, Junior.

The provision in the will is explicit, that the whole surplus income of this quarter, after paying the annuity of $2000, is to be divided at his death. This prevents it from being affected, under any circumstances, by the larger annuity given to the Alston’s; so that if in any year the net income of the half of the estate should be only $8000, there would be no abatement in John’s annuity. The other three annuities must be paid out of the $6000 arising from the three remaining fourths of the trust estate.

Equally positive and explicit is the direction in the will, that upon the death of John, this one-fourth part is to go directly, and absolutely, without any charge upon it, or any reservation of time or circumstance, to the devisees of the same in remainder.

The detaching of the one-fourth part from the operation of the general and joint expressions used by the testator respecting the whole trust fund, essentially weakens, if it does not entirely overthrow, the argument founded upon those expressions in reference to the other three fourth parts.

Now to recur to the difficulty which arises from the inequality of the bequest carved out of the half part put in trust.

There is a positive direction to the trustees, to pay out of the income of this half part, an annuity of $3000 a year to Mrs. Alston for her life, and to her husband for his life after her death. How can this be accomplished if the half of the estate should produce only $10,000 of income, and on the death of James or Henry, one-fourth of the half is withdrawn from the trust ? We have seen that John’s one-fourth is not to be touched to eke out the annuities of the others. And $5000 of income will not pay two annuities amounting to $5500.

Yet the provision is equally positive, that on the death of either James or Henry, the equal fourth part of the trust fund, is to go directly to their respective issue, vesting absolutely, and subject only to the annuity to the surviving widow of the deceased. This is the clear eifect of the devise, although the language speaks of the death of James and Henry, and the gift is of the two equal fourth parts. The language is distributive, as shown by the words respectively, and respective issue; and the next paragraph, which is a part of the same particular devise, speaks of the death of the sons or either of them. If either James or Henry die without issue, this paragraph creates a direct gift of the one-fourth part, to the other children of the testator and their issue, vesting absolutely in the persons and classes entitled by the terms of the gift, subject only to the widow’s annuity, if there be a widow surviving.

Another provision of the will which at first blush, conflicts with a separation of the trust into four distinct parts, is thq one which gives a discretion to the trustees to increase the respective annuities. This opens the way for a much greater inequality between Mrs. Alston and her brothers, than that to which I have, referred. And if this discretion were to be extended over the three fourth parts of the trust, if might interfere conclusively with any distribution till the end of three lives at least.

For example, I will assume that the income from the three fourths is at this time, $15,000.

In their enlarged discretion, the trustees may determine that Mrs. Alston ought to receive eight, nine, or ten thousand dollars a year, out of this income.

Unless the trust as to the three fourths is to remain entire, notwithstanding the death of Henry or James, or of both; this discretionary enlargement would be cut off by such an event, contrary to the apparent intent of the testator as derived from this clause of the will.

Of course the same argument holds good, in reference to a supposed increase of tbeannuity to Henry, or to. James, beyond one fourth of the income.

Moreover the intent is very clearly expressed, that the; discre-t tion may be exercised at any period during the life of Henry, James, and Mrs. Alston respectively ; and there is no design in express terms, that it shall be restricted in its extent, when exerted in behalf of either, to the one-fourth of the income of the trust estate.

Whether the trustees may enlarge either annuity more than once, or cut it down again, after once increasing it, I am not required to express an opinion.

The next clause in the will, which is the one for accumulation, when taken by itself, presents another obstacle to the severance of the three fourth parts of the trust, which constitute its subject matter; because it makes a joint charge of the three annuities on the income of those three fourth parts. It does not direct the surplus income of the several fourth parts, to be accumulated, nor can it be so construed upon the literal terms of the paragraph. The three annuities, Mrs. Alston’s being $500 more than either of the others, are to be paid first out of the three-fourths of the income of the trust fund, and the residue of the income is to be divided equally.

Therefore regarding them for the moment, as three distinct shares, there is $2500 payable out of each share, and then $500 more which is to be paid to Mrs. Alston by the three shares equally, one-third by each. Whether the income of the three fourths be $10,000 or $15,000, the result would be the same, because the surplus for accumulation is to be ascertained by first paying the three annuities, although they are unequal, and then such surplus is to be equally divided. This result would necessarily require the three fourth parts to be kept together so long as Mrs. Alston and her husband both lived, because her annuity, being more than the other two, would during all that time be a charge for the excess at least, upon the whole three fourths of the fund. And as she and her husband might outlive both James and Henry, if this clause of the will must receive a literal construction, it may suspend the power of aliening the three fourth parts for at least three lives in being at the creation of the estate.

If the annuities were increased pursuant to the discretion conferred upon the executors, the same difficulty would occur, if they continued to be unequal; and as the discretion extends to increasing one and not the others, we are to regard it as if they had so exercised the power.

Thus the expression “ the three equal fourth parts thereof,” in the paragraph in question, does not aid the construction claimed that the devise in trust is wholly distributive.

To proceed one step" farther, to the paragraph connected with the one last treated, and providing for the event that the three annuitants are without issue to take the benefit of the accumulation directed in the latter.

By this clause of the will, if either of the three are without issue, the surplus of the income of those respective trust shares, is to be divided among the other children. The language is, “ with regard to the said trust shares of the said Helen Alston, James Mason and Henry Mason, so long as they may severally be without issue living, the surplus of the income thereoff &c., “ after satisfying the said annuities to them, or to the surviving husband of the said Helen Alston, and the surviving widows of the said James Mason and Henry Mason, shall be paid,” &c.

Here the three fourth parts are clearly treated as several, in respect of the three annuitants. Indeed they are spoken of as belonging to the annuitants; the trust shares of Mrs. Alston, &c. Then the surplus income is to be ascertained in the same manner after the second class of annuitants become entitled, as while Mrs. Alston and the sons are living. The annuities are to be satisfied first, in each case, and the surplus distributed.

Now the will is plain, that after the death of Mrs. Alston, her annuity, if her husband survives to take it, is to be a charge upon the one-fourth part of the trust fund by itself. It is precisely the same, in regard to the annuities continuing to the widows of James and Henry. Each is a charge upon a separate fourth part.

This being so, is it not a consequence, that the same mode of ascertaining the surplus for division under this paragraph of the will, is to be used from the outset '!■ That the surplus income is the income of one-fourth of the trust, after satisfying the annuity of the person whose childless state occasions its distribution.

This appears to me to be the true construction. Nay, more, that it is the necessary construction. Let us apply the paragraph as the executors were bound to apply it at the end of a month from the death of the testator. Mrs. Alston then had issue ; James and Henry had none.

The child of Mrs. Alston was entitled to the accumulation given by the previous clause; while under this provision, there was to be a distribution in respect of James and Henry. Taking the two clauses together, the infant Alston could claim no accumulation from the income of the trust shares of James and Henry. The latter clause precludes such a claim. Nor could Mrs. Alston’s annuity of $3000 be extended over those shares of James and Henry for the excess of $500 so as to swell her child’s accumulation ; because in the case as it stood at the testator’s death, the surplus income of those two shares was to be ascertained by satisfying their two annuities, and nothing more. Therefore Mrs. Alston’s annuity of $3000 would of necessity be paid out of her share, or one-fourth of the trust estate; and the surplus income of the same one-fourth, and no more nor less, would be put to accumulate for her child.

This demonstrates that the two paragraphs which I have been considering, when taken together, do not sustain the position of a joint charge of the three annuities upon the three fourths of the trust fund, but are strongly in favor of the contrary construction. The last paragraph is entirely inconsistent with any such joint devise and charge of the three fourths.

There are other provisions of a prominent character in the will, among those that I have before briefly collated, which lead to the conclusion that the devises are of separate fourth parts of the trust fund.

In the event of Mrs. Alston’s surviving her husband, her annuity ceases, and one-fourth part of this fund, comes into her possession absolutely, in her own right. This is an explicit direction, which is wholly independent of the remainder of the trust fund, and it is to take effect without any regard to the continuance or termination of the various other limitations of or in such remainder.

So if her husband shall survive her, the same fourth part will then vest absolutely in her children or issue, subject to the annuity of $3000 which is continued to him.

Here again are directions equally as positive as those in regard to the share of John Mason, Junior; and on giving them full effect, they detach another fourth part from any necessary connection with the other portions of the trust fund.

Nor is this their only influence and bearing upon the question, for as I have before observed, they in the one event extinguish the largest annuity given by the will and in the other fasten it upon the same one-fourth part of the fund, exclusive of all the other shares.

The latter result, which ensues upon Mrs. Alston’s dying before her husband, is a strong argument to show that the testator never intended to make her annuity, under any circumstances, a burthen upon any or either of the other three-fourths of the trust estate.

This argument is to my mind strengthened by another consideration arising from the amount of the property. It is apparent upon the will itself, that the testator expected the trust would produce a considerable surplus income beyond the $10,000 required for the annuities. And we have besides the extrinsic fact, (to which resort may be had in aid of the construction upon a point like this,) that the income of one quarter of thetrustfund, after his death, was nearly double the largest annuity. The testator could not have supposed that the annuity which he specified for Mrs. Alston, or any reasonable increase of its amount by the executors, would ever require for its support more than one-eighth of his estate.

To recapitulate in brief terms.

The devise is in its scope, joint and entire; the direction to rentj improve or collect is also entire; and the annuities are to be paid out of the entire income; yet "there is one-fourth part of the fund, the share of John Mason, Junior, which is ih no wise connected with the other portions of it, the income of which fourth must be kept distinct, and the capital and surplus income vested and divided upon his death.

This effectually breaks the charm of the unity and entirety of the trust devise.

The fourth part destined for Mrs. Alston and her issue, must vest absolutely in her, on her husband’s death; or if she die first, it then vests in her issue, and is totally detached from the residue.

The will is equally explicit that the several fourth parts designed for the issue of Henry and James, shall vest absolutely, upon their respective deaths.

The direction in the will for dividing the surplus income, while either of those two sons is childless, cannot be carried into effect upon any other basis than a separation of the trust into four distinct devises of as many equal parts.

And the only part of the will that is adverse to this conclusion is the direction to pay unequal annuities, which by means of a deficiency of income, or an increase of their amount in unequal proportions by the executors, may if it is to be literally executed, require a joint charge on three-fourths of the fund, to carry out their full payment.

The testator did not have in view the existence of any state of things which would make the joint charge necessary, in order to pay the annuities.

And his clear paramount intent in respect of the distribution of the surplus income, and the vesting of the capital of one-fourth absolutely, on the death of each of the four children who were annuitants, conflicts with any joint charge upon any two or more of such fourth parts.

He left his estate in such a condition that his will can be fully carried out by considering the devise in question to be of four separate and distinct parts. If by any unforeseen occurrence, there should be a collision between the provision for Mrs. Alston’s annuity, and other portions of the will, the former being in conflict with the principal scope and intent of the testator as deduced from the whole instrument, must give way to such general purposes.

My conclusion is that it was not the intent of the testator, nor the effect of the language used in the will, when considered as a whole; to create a trust by which one-half of his estate was to remain entire in the hands of the trustees until after the determination of the annuities granted to his children.

On the contrary, that his intent and the effect of the devise made, was to vest the fund in the trustees in four distinct and equal shares; each of which was chargeable with a single annuity, and vested on the death of the child to whom such annuity was payable. If Mrs. Alston survived her husband, her fourth part was to vest in her in possession. If Henry and James died after their wives, their respective fourth parts would be divisible upon their deaths.

And in no event would either share, or any part of either, remain suspended, so as not to be alienable, beyond two lives in being.

In order to give due effect to the other parts of the will, the discretion of the trustees to increase the annuities, must be restricted within the bounds of the income of the respective fourth parts of the trust fund.

Second. The next objection to the validity of the will, is that the trust for accumulation of three-fourths of the one-half of the estate for the benefit of unborn children is illegal, because the persons are not named during whose minority the accumulation is to commence, and at the expiration of which it is to terminate; and because its commencement is postponed too long.

The trust does not commence until a month after the death of the testator, and therefore it does not fall within the first subdivision of the respective sections relative to accumulations of real and personal estate. (1 R. S. 726, § 37, ibid. 773, § 3.)

Considered with reference to the second subdivisions of those sections, it commences within the time prescribed; for as to each fourth part, it must commence, if ever, within the lives of the two annuitants who successively receive their annuity from such fourth part. It must necessarily commence during the minority of those for whom it is provided, because they mus t be in life before there is to be any accumulation, and it terminates on their becoming of full age. The question is, whether all the persons for whom it is intended, must be living at its commencement. As to their being named, I think the designation of a class of persons is within the statute, and that it requires no other description.

The direction in this will is to accumulate for the benefit of the children or other issue of the respective sons and the daughter. The word equally refers to the fourth parts, not to the children or issue.

Thus in Mrs. Alston’s case, at the outset of the accumulation, it would be for the benefit wholly of her child then living. On the birth of another child, it would be from thence for the benefit of both children, and so on upon an increase in their number. Then when the eldest became of full age, he would receive all that had accumulated for him, and cease to participate for the future.

It occurred to me at first, that this construction would interfere with the spirit of the statute, by permitting a succession of accumulations, and extending the time in which they would progress. I do not perceive that the mere succession of them is objectionable, if they all fall within the prescribed limit as to time, so as not to suspend unduly the absolute ownership or power of alienation.

In this case the time falls far short of what the statute permits, because the accumulation is not only to commence within two lives in being, but it is to terminate with those lives. The respective trust funds vest absolutely and become divisible, and the entire trusts cease, with those two lives. In Mrs. Alston’s share they will cease on the death of her husband, which may occur while she lives, and thus the suspension continue for one life only, But I will proceed to view it as a general proposition, applicable to all cases arising under the second subdivision of the sections in question.

The accumulation may be postponed in its inception to any point of time within the compass of two lives in being, and then may continue till the end of the minority of the beneficiary. Suppose in this instance, the direction had been for an accumulation during the minority of the youngest child of Mrs. Alston, to commence at its birth, and to be for the benefit of all her minor children or issue then living, so long as they continued under age. It may be said that this would be void for the uncertainty of the time of its commencement. To this I might answer, it could be made certain by relation, for if she had one child, there would infallibly be a youngest child. There might, I admit, be a difficulty in going back to begin the accumulation after the youngest child was ascertained by events subsequent to its birth. I put the case however, merely to illustrate the question of time ; and a direction to begin an accumulation twenty years after the testator’s death, if A. and B. so long lived, would illustrate it equally as well. And I think either hypothesis shows that a trust of this kind may be made quite as enduring, where there is to be no succession of parties entitled, as where it is to commence with the birth of children and to embrace all the afterborn children of the cestui que vie.

There is a difference in this, that in the cases supposed, the accumulation itself will continue for a less period, and the intermediate rents or income will vest in other parties: but the ownership of the estate will be suspended in each instance, to the end of the accumulation.

It appears by the revisers notes accompanying the introduction of these provisions to the legislature, that they intended to allow of accumulations for the benefit of infants entitled to the next eventual estate. (3 Rev. Stat. 578, 2d ed.)

This object, and nothing more is attained by the devise in Mr. Mason’s will, and there is the further merit in the provision, that it makes the distribution of the benefit of the surplus income of each of the three-fourth parts among the issue of the respective annuitants, as nearly equal as is consistent with a valid bequest under the statute.

I feel much diffidence in the disposal of the point, but my conviction is clear, that the trusts for accumulation are valid.

Third. It is objected that the power of alienation is suspended for one month from the testator’s death, and the devise is therefore void.

This would undoubtedly be the consequence, if there were an absolute suspension for a month, without reference to lives in ■being. But there is no such suspension here. The accumulation is not to commence till after a month; but if Mr. and Mrs. Alston, for instance, (or Mr. Alston alone,) had died within the month, the accumulation would never have commenced at all as to that fourth part. So if James Mason and his wife had disd the next day after the testator, another one-fourth would at that instant have vested absolutely in possession. The duration of the trust as to each fourth part of the fund is dependent entirely upon the continuance of lives, and not upon any fixed period of time.

Fourth. It is also made an objection to the devise, that a trust for the payment of annuities, is not authorized by section 55 of the revised statutes relative to uses and trusts.

The point has been held otherwise in several cases. (See Hawley v. James, 16 Wend. 61, per Nelson, Ch. J., and Maison, Senator; and in the same case, per the Chancellor, 5 Paige, 321; De Peyster v. Clendining, 8 Paige, 295 ; S. C. nomine Bulkley v. De Peyster, 26 Wend. 21.)

Fifth. As to the objections to the direction for distributing the surplus income, while the three principal annuitants are without issue.

There is no uncertainty, in my view of it, either as to what is to be divided, who is to ¡receive it, or on what contingency it is divisible. I refer to what I have said in discussing the principal point in controversy.

In regard to George Jones, who in this instance is a beneficiary of the trust, the only consequence is that he takes a legal and not an equitable estate, in his proportion of the surplus to be distributed. (Murray v. Murray, before the Chancellor, decided April 19,1842.)

Sixth. The devise of John Mason, Junior’s share after his -death, is said to be both uncertain and incomprehensible.

There is evidently some omission of words, and perhaps a transposition of other words in this clause of the will; hut having regard to the objects of the testator and the subject matter, it is perfectly intelligible.

Seventh. It was also made a point, that the complainant, in case the trusts of the will were adjudged to be valid, is entitled to a decree for the permanent continuance of the annuity to him, as enlarged by the trustees.

As to this, there is no foundation laid for it in the bill. The court therefore has nothing to do with it in this suit.

The bill must be dismissed, with costs to the infant defendants, and to such of the other defendants as opposed the claims made by the complainant.