Eells v. Lynch — 21 N.Y. Super. Ct. 465

Majority

p. 465

Marcellus Eells et al., Executors, &c., of John Randall, deceased, v. James Lynch.

Headnote

1. The testator, by his will, gave to his widow the use of his house “ until my youngest child shall -attain the age of 21 years,” provided she remained his widow. He further directed his two youngest children, naming them, who were infants, to be educated and maintained out of the income of his estate until they attained majority; and that his real property be kept in good repair “ until my said youngest child shall attain the age of 21 years.” Upon which event, he ordered his executors to sell his real estate — to invest $3,000 of the proceeds and pay the interest to his widow for life, on whose death the principal was to be equally divided among his children and grandchildren, like the residue of the estate. The residue of the estate he gave in undivided shares of one-ninth each to five sons, two daughters, and one granddaughter respectively, and the remaining ninth to four grandchildren, to be equally divided between them, directing further, that if any of his said children should die before said youngest child attained majority, or before a sale or division of the estate, leaving no lawful issue, then his or her share should go to and be equally divided among the survivors in the same manner. The beneficiaries all survived the testator.

Held that there was no illegal suspension of the power of alienation, and that the executors’ agreement of sale in execution of the power, after the youngest child attained majority, could be enforced against the purchaser.

2. The provision for maintaining the children, may be treated as creating merely a charge. Per Hoffman, J.

3. The words, “ on my youngest child attaining the age of 21,” are to be read as if the name of the youngest living at the testator’s death were inserted. Per Hoffman, J.

4 Whether those words be read thus, or as intending the youngest who should attain majority, is not material to the validity of the will, for on either view the remainder over, in case of a child dying without issue before majority of the youngest, would be a future estate vested as to the

■ person but contingent as to the event, which, by the Revised Statutes, would not be inalienable. Per Robertson, J.

5. A mere power of sale cannot be deemed to contravene the statute restricting suspensions of the power of alienation. Per Robertson, J.

(Before Hoffman, Robertson and White, J. J.)

Submitted, June 3;

decided, July 13, 1861.

This was a case submitted to the Court at General Term, for its judgment-, upon an agreed statement of facts made pursuant to section 372 of. the Code of Procedure.

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The question was, whether the executors of John Eandell, by virtue of the power contained in his will, can convey and give a good and valid conveyance to James Lynch, as purchaser, at a sale by auction, made by said executors, of five lots of land on 113th street in the Oity of Hew York.

The provisions of the testator’s will, so far as material to the case, were as follows:

“ Thirdly.—In order that my wife and family may have a home after my decease, until my youngest child shall attain the age of 21 years, I also give and bequeath unto my said wife the free use and occupation of my dwelling-house,” * * * “ until my youngest child shall attain the age of 21 years, provided that she shall so long remain a widow, but in case of re-marriage she is not to have the use of said dwelling-house and ground.”

“ Fourthly.—It is my will, and I hereby order and direct that my youngest children, viz., Marcellus and Mary Adrina, now infants under the age of 21 years, be educated out of the rents and income of my said estate, and that they receive an education equal to any of my other children, and that they, together with all my other infant children, have their necessary board and maintenance, until they attain the age of 21 years, out of the rents and income of my said estate.”

Here followed a provision for the support of one of the testator’s sons, John S., and his children; and that taxes on testator’s real estate and expenses of repairs, until his youngest child attained the age of 21 years, be also from time to time paid out of the rents and income of the estate. All the residue of the said rents and income the testator bequeathed to his wife, until his youngest child should attain the age of 21 years, provided she so long remained his widow, for her support and maintenance.

Fifthly.—The testator directed that on the youngest child attaining age, his real estate be sold by his executors.

Sixthly.—That if his wife should be then living and remain his widow, $3000 should be put out at interest by

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his executors during her natural life, and that the interest thereof be paid over to her, which bequest was in lieu of dower. After her death, the said sum. of $ 3000 was to be equally divided among all the testator’s children and grandchildren, in like manner as the residue of the estate.

Seventhly.—The residue of his said estate he gave to his children and grandchildren hereinafter named as follows: One equal undivided ninth part to each of five sons and two daughters; and one granddaughter, the child of a deceased daughter; on the death of either daughter or of the granddaughter, the share of that one was to be equally divided between all her children. The remaining one-ninth the testator gave to four grandchildren, the children of another deceased daughter, to be equally divided between them, share and share alike, and in case of the death of any or either of them, then the survivors or survivor of them to take the same.

“ Eighthly.—That if any of my said children shall happen to depart this life before my said youngest child shall attain the age of 21 years as aforesaid, or before a sale or division of my said estate as is hereinbefore mentioned, leaving no lawful issue, that then and in such case such share or proportion of my said estate so given to him, her or them, so dying and leaving no lawful issue, shall go to and be equally divided among all the survivors in like manner as is hereinabove mentioned, and I give and bequeath the same accordingly.”

The will was duly proved and letters issued thereon.

The case submitted by the parties, also stated the following facts.

The testator died on November 5,1850, leaving a widow him surviving, and the following children and grandchildren, his only heirs-at-law, all of whom have since attained their majority:

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rP O >■ P 'o S P-l 0 John Sickles Eandell, William Eandell, Susan Antoinette, wife of Marcellus Eells, James W. Eandell, aged about 20 years, Francis M. Eandell, aged about 17 years, Marcellus Eandell, aged about 13 years, and Mary Adrianna Eandell, aged about 11 years;— and .Sarah Eliza Doughty, aged about 16 years, only child I of Ann Maria Doughty, a daughter of said testator, who died intestate before her father, and leaving her husband, Isaac Doughty, her surviving, Adrianna, wife of William Painter, aged\ about 19 years, Mary Ann Morrell, aged about 18 years;/ Isaac Morrell, aged about 14 years, and) John Morrell, aged about 11 years, and! no other children, or descendants of a) child or children. is p <9 02 «9 +f © ~ £2 t/2 -Í I <3) ^3 Q p JB f S B ®=§i

All the children and grandchildren above mentioned of the testator are still living, except the testator’s daughter Susan Antoinette, the wife of Marcellus Eells, who died intestate about January 1, 1857, leaving her surviving her husband, and the following children, all of whom are still living:

Mary Eells, aged now about 22 years. John Eells, 66 <6 19 46 Annie Eells, it a 17 66 Amanda Eells, tt tt 13 66 Harriet Eells, a a 11 66 Kate Eells, tt tt 8 66 James Eells, <6 a 6 (6

Mary Adrianna Williams, formerly Mary Adrianna Eandell, the testator’s youngest child, arrived at the age of 21 years on October 24th, 1860.

The executors, under the power contained in the will, advertised and sold said five lots of ground to Mr. Lynch, on the 21st of February, 1861.

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His counsel objects to taking a deed of the lots from, the executors, on the ground that the power of sale contained in the will is void, for that the power of alienation is therein suspended beyond the period limited by statute. The testator’s widow has released to the executors her dower right in the testator’s real estate, and accepted the provisions made in the will for her benefit in lieu of dower.

No conveyance or instruments have ever been executed by the children or grandchildren of the testator in any way affecting the five lots of land.

Francis Byrne, for Mr. Lynch.

I. The intent of the testator is clearly expressed, that all his real estate should be kept together, “until his” youngest child should attain the age of twenty-one years, until which time the widow, (if she did not marry again,) was to have the use of his dwelling house, and the residue of the rents and income, after payment of the expense of education of the two “youngest children,” and their board, &c., and that of all his other infant children, and taxes, assessments, repairs, &c., and after payment of an annuity of $100 to his son, John Sickles Eandell, (or in case of his death,) to the children not named of said John, until said testator’s youngest child should attain his majority.

II. “On” the “youngest child attaining the age of twenty-one years, all the estate was to be sold by the executors; and on the sale of the real estate, (if, &c.,) $3,000 were to be invested for the life of the widow, and the interest paid to her. On her death, the principal is to be equally divided among all his children and grandchild/ren, in like manner as the rest and residue of his estate, both real and personal.”

III. The rents, &c., are not directed to be accumulated for the benefit of minor children, &c., within the intent of the statute, which evidently means as to the entirety, and for their benefit directly, and so is not a valid disposition. (2 R. S., 5th ed., p. 13, § 37, &c.)

IV. There is no devise “ to executors,” nor, are they

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“ empowered to receive the rents and profits,” consequently no estate vested in them, but the lands descended to the heirs, &c. (2 R. S., 5th ed., p. 20, § 75, &c.) If the power to sell be good, it can be exercised.

"V. The fair interpretation of the will is an immediate devise of all the residue, (after the payment of the annuity of $100, and enjoyment by the widow of the use of the dwelling’-house, &c.,) of the estate, real and personal, in the following proportions, namely: to his five sons, John S., Wm. B., James W., Francis M. and Marcellus, each one-ninth, and to his four grand-children one-ninth in fee; and to his two daughters, Susan Antoinette, Mary Adrianna and his granddaughter, Sarah Eliza Doughty, the income during life of each, one-ninth, (three-ninths,) remainder to their children, &c., subject to the power of sale. Otherwise, an incongruity appears in directing the sale, of all the real estate, and devising, &c., “ all the rest, residue and remainder of my said estate, real and personal.”

VI. “ The absolute power of alienation is manifestly suspended, for more than two lives in being at the time of the creation of the estate.” (Hawley v. James, 16 Wend., 61 ; McSorley v. Leary, 4 Sand. Ch. R., 414 ; Boynton v. Hoyt, 1 Denio, 53 ; Amory v. Lord, 5 Seld., 403.)

VII. The trust being void, a valid power in trust, cannot be given to the trustee, &c., to sell. (Wood v. Wood, 5 Paige, 597 ; Hawley v. James, 16 Wend., 62 ; Hone’s Exrs. v. Van Schaick, 20 Wend., 564 .) And there is no devise to the executors to sell.

Adriance & Vanderpoel and Alex. W. Bradford, for the executors.

The scheme of the will is clear; it was planned by the testator,’ in order that his wife and family should have “ a home,” until his youngest child attained twenty-one, and that'during the same period his two youngest children should be educated, and all his infant children “ have their necessary board and maintenance,” until majority, out of his estate. These objects are expressed in the third and

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fourth clauses. When this primary purpose should be accomplished, the executors were to sell the estate, invest three thousand dollars for the benefit of the widow during life, and divide the residue among the testator’s children and grandchildren.

1. By the third clause, he devises his dwelling-house, garden, grounds, &e., to his wife, “ until my youngest child shall attain the age of twenty-one years.”

2. By the fourth clause he creates by implication an estate in his executors, for certain purposes therein specified, “ until my youngest child shall attain the age of twenty-one years.”

3. By the fifth clause, he says, “ that on my youngest child attaining the age of twenty-one years, my will is, and I hereby order and direct, that all my real estate be sold by my executors.”

I. The testator, to accomplish his objects, selected a mode of creating a trust term, which might serve his purpose or might fail. He created a trust term for a period that could not exceed one life. His selection was fortunate, but it might have proved otherwise. The term was wholly contingent on life; if the person named had died, it would have ceased.

II. The testator limited the execution of the power of sale upon the same lite; so that on the termination of the trust term, the power should immediately arise.

HI. In carrying out his plan, the testator has taken care to make every important testamentary intention the subject of a separate article, wholly independent of all the others, and capable of standing without the support of the rest, or any other part of the will.

IV. The power stands by itself disconnected from the rest of the will, and is simply a direction to convert all the real estate into money.

1. There is no proviso or condition qualifying it, except the first clause. It is not connected with the devise of the residuary estate, nor with the implied trust to receive the rents and profits.

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2. It is, therefore, merely a naked power, and its validity is to be tested solely by the terms by which it is created.

V. The seventh clause, if invalid, can fall without affecting the power. But there is no restraint on the power of alienation by the terms of the seventh clause, for the devises therein contained are immediate, and vested the whole estate, on the testator’s decease, in the devisees therein named, subject to the previous provisions.

1. The shares of the sons and daughters vested on the testator’s decease—the former in fee, the latter in trust for life. As to the former, there was no suspension of the power of alienation; as to the latter, the power of alienation was suspended as to each share for one life only.

2. The clause of survivorship, at the end of the seventh clause, related to death before the testator, to save a lapse, and not to death after. (2 Jarm. on Wills, 632.)

3. The shares in the sum to be invested under the sixth clause, for the benefit of the widow for life, vested in the like manner with the rest of the estate under the seventh clause. The absolute estate in possession, was suspended as to the sons, for one life—as to the daughters for two lives. If it be urged that, by operation of the clause creating the power, another life is interposed, then the daughters would take absolutely, instead of life interests, the statute where an excessive number of life estates occur, converting the third into an absolute estate. (1 R. S., p. 723, § 17.)

VI. The eighth clause, if invalid, can fall without affecting the other portions of the will. It contains, however, a valid limitation, suspending the power of alienation for one life only—the youngest child. It is a separate and independent limitation in case of death without issue before the youngest child attains majority. In case of death, leaving issue, the estate is left where the seventh clause placed it. But this limitation, like all the other suspensions, is based on a single life—that of the youngest child.

VH. Whatever questions, however, may arise in respect to the disposing parts of the will, the only point now under

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consideration is the power. Even if the other provisions are invalid, and the testator be declared to have died intestate, the power must be held valid. A power of sale is entirely consistent with intestacy as to the proceeds of the power. It is often given as a naked authority, or as a positive direction for an out and out conversion, for the purposes of convenience. in the administration and distribution of an estate.

YUI. The power in question purports to be limited on the attainment to majority of the testator’s youngest child. That child was a person ascertainable at his decease. It turned out to be his daughter Mary Adrianna. The will, therefore, must be applied as if she had been named therein.

IX. The execution of the power was, therefore, limited only on a single life—that is, the absolute power of alienation in the devisees was not suspended by reason of this power in the executors, except for the life of Mary Adrianna.

It could not be suspended for a longer period than her life, because if she lived she must attain majority; and if she died prior to that period, the power was either accelerated or terminated.

X. The language in the leading case on this subject was, “when the youngest of my children, attaining the age of twenty-one, shall have attained that age.” (Hawley v. James, 16 Wend., 71 .) Here, the words are, “on my youngest child attaining the age of twenty-one years” — not “the youngest of my children who shall attain majority”— a form of expression which would, from time to time, bring in the next eldest minor after the decease of the youngest minor, and that was the reason of the decision in the case above cited, where the trust was held void, because the number of lives “exceeds two.” (See head note, p. 61, same case.) Here the limitation is on the life of one only—“my youngest child.”'

The same expression occurs elsewhere in the will; thus in the third paragraph:

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“Until my youngest child shall attain the age of twenty-one years;” and in the fourth paragraph:

“ My youngest children, viz.: Marcell us and Mary Adrianna.” “My said youngest child shall attain the age of twenty-one years.” This expression is twice repeated.

XI. On the decease of the testator’s daughter, Adrianna, before twenty-one, the trust estate would have terminated, the power have been accelerated and become operative, or have ceased, and the devises in the seventh clause have taken effect in possession, so that (with the possible exception noted in third subdivision of point 5,) the absolute power of alienation could not have been suspended longer than one life, by any provision of the will.

XII. It is clear, however, that without inquiry as to other portions of the will, the execution of the power was not postponed any longer than until the testator’s “said” youngest child, Adrianna, should attain twenty-one, and consequently, so far as the power is concerned, the absolute power of alienation could not have been suspended for a longer period than one life, in being. It was a matter of positive certainty that, if the power ever could take effect, it must be within the period of one life. That to effect a suspension, a term may be taken, grafted on a life, and which may be less, but cannot exceed a life, is the single principle involved in sustaining this as a valid power. (Lewis on Perpetuities, Law Lib., [N. S.] vol. 36, pp. 143, 144.)

The whole income of the estate, real and personal, is disposed of, and directed to be appropriated until the youngest child of the testator attained the age of 21 years. There is no appropriation, except of a part next to be noticed, Avhich can extend beyond that event. Even the bequests of the residue of the income to his wife, after the particular appropriation, are restricted to that period, and provided she continued unmarried. The appropriation in the sixth clause, of the interest of $3,000

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for the life of the wife, of itself is perfectly legal, if the power of sale can be well executed.

The testator mentions Marcellas and Mary Adrianna, as his youngest children; and it is admitted, that Mary Adrianna was the youngest living at his death, and became of age on the 24th of October, 1860.

The distribution and vesting when the power is exercised, is absolute and entire to the different persons named in fee, except as to the shares of Susan, Mary Adrianna, and his granddaughter Sarah Eliza. Even if these dispositions were invalid, the power to sell would not fall with them.

Thus the single question is whether there is an illegal suspension of the power of alienation by force of those clauses which prevent a conveyance in fee until the youngest child attains the age of 21 years. The will speaks from the death of the testator. (1 R. S., § 41, p. 726 ; 5 Sandf. S. C. R., 369.) At that time there were four children under age. It was fully settled in Lang v. Ropke, (5 Sandf. S. C. R., 363,) that a devise to trustees to receive and apply the rents and profits during a minority, is not an absolute term of years corresponding with the probable duration of the minority; but is determined by the death of the minor before he attains his age. In that case the provision kept the estate inalienable “ until my youngest child living shall attain to the full age of 21 years.” The will was made in 1824, but the testator died in 1836, and only one child was then under age, and it was held that the limitation was valid, as it was confined to a single minority. The suspense could not exceed the life of the minor, and might be determined before his death. But if the trust is to continue during more than two minorities, the limitation would be void.

In McGowan v. McGowan, ( 2 Duer, 57 ,) the real estate and certain personal estate was given to the testator’s wife to support and educate the children, &c. “ And at my son John becoming of age, the whole of my estate to be divided equally among my children, named Bernard,

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Alice, Martin, John, but should death take either from, the world, it shall be equally among the survivors.” It was held that the suspense would terminate on the death of John, the youngest child, and was therefore confined to a single life in being. Jennings v. Jennings (5 Sandf. S. C. R., 174 ; affirmed, 3 Seld., 547,) has an important bearing upon the present question. The scheme of the will was this: that the income of the testator’s estate real and personal, after payment of his debts, should be applied to the clothing and maintenance of his wife, and the clothing, maintenance and education of his children by her, and the surplus was to be invested by his wife as trustee for her children. The property was all to be kept together undivided until the eldest surviving child, by his present wife, should become 21 years old, and then to be appraised, and his or her equal share apportioned, and paid if required. (Opinion of Gridley, J., 3 Selden, 548.) The material clause was: “ As soon as my eldest surviving child by my present wife, becomes of the age of 21 years, the whole of the property to be fairly appraised and valued, and his or her equal share of the property apportioned, and if required, paid to him or her. And in like manner the same course to be pursued in respect to the rest of my surviving children by her.”

There were four children living at the death of the testator, all under age.

Two great objections to the will were dwelt upon in the Superior Court and Court of Appeals. First, if three of the eldest were to die under age, and the fourth arrived at age, the power of alienation would be suspended for three lives. It would continue during the minority of the youngest child. Second, as the children arrived, should they all do so successively, at the age of 21, the share of each was to be set apart. But the estate was not to be divided at the majority of the eldest child. The residue was still to be kept together for the maintenance and education of the rest, until the last of the children should arrive at the age of 21 years.

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But in the present case, immediately upon the coming of age of the youngest child, the whole real property is to be sold under the power, and the whole proceeds and all the personal estate are to be disposed of, and paid over, and in absolute ownership, immediately, with the exceptions before noticed.

Nor do I find anything sufficient to warrant the conclusion, that on the death of the youngest child, under age, the suspension would continue, if there was an elder one also under age, until his majority. There is, indeed, the clause in the fourth article, “ that they,” meaning Marcellas and Mary Adrianna, “ together with all my other infant children, shall have their necessary board and maintenance until they attain the age of 21 years, out of the rents and income of my said estate.”

If the other provisions of the will are free from invalidity on the ground of an unwarranted suspension, I should hold that this clause may be treated as creating a charge only; and in the event suggested, (of the death of the youngest child before majority,) the estate would be alienable, subject only to such an incumbrance. That has now terminated.

If we bring’ into the will what the cases I have cited authorize us to interpolate, it becomes in substance this: That suspension is directed, until his youngest child (Mary Adrianna, as if she were expressly named,) arrived at full age. Then the power to sell could be exercised. If she died before of full age, the whole scheme of the will, as to real estate, failed. The power, could not be exercised. It is given to be exercised on his youngest child attaining the age of twenty-one. It was dependent for its existence on that event happening. If it never happened, the power never came into being. If it did happen, the power then took effect. The creation of the power was not void, because there was no suspension but for the life of the one daughter, the designation of whom, as the youngest, was equivalent to a designation of her by name. And thus, if she died during minority, the power ceased. If

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she lived to majority, the power came into force, and was legal, because it was dependent upon that event, and terminable if that event did not occur.

The case differs from Boynton v. Hoyt, ( 1 Denio, 53 ,) where the clause was, “ until the period when my youngest child would (if living) attain to the age of twenty years, and my daughter to the same period.” There was a trust to receive the rents, &c., in the interim. The limitation, says thb Chief Justice, is not bounded by the life of the youngest child or daughter, or by life in any form. There was an absolute or certain term fixed for the continuance of the trust.

If the limitation is to be treated as dependent on the life of the youngest child, as if she were named, the subsequent provisions taking effect after a decision, would be valid.

My conclusion is, that the power is legal, and a conveyance under it will vest a good title to Jane Lynch, the purchaser. Judgment must be entered accordingly.

The difference submitted to this Court for its decision, turns upon the validity of the powers of sale given to the executors in the will in question, and that as manifestly depends upon the purposes for which such power was given; of course if they are illegal the power itself must fail. (Wood v. Wood, 5 Paige, 597 ; Hawley v. James, 16 Wend., 71 ; Howe’s Exrs. v. Van Schaick, 20 Wend., 564 .) If the power be a naked power to sell for the purpose of distribution, in other words, an out and out conversion without reference to any purpose, it would clearly be legal, but I apprehend the will in question will not justify such an interpretation. The estate given to the widow of the testator by the third clause of the will, until the majority of his youngest child, is, on that event, changed into a mere right to the income of a sum of money, part of the proceeds of the sale of such land, to be received in lieu of dower. Then the seventh clause gives “All the rest, Sac., of his estate ” to his children and grandchildren in certain proportions, and provides that

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the sum or. amount so given" to a daughter should be “put out at interest on bond and mortgage." The money to be invested for the widow was evidently to be part of the proceeds of the sale; the rest was to be the residue of such proceeds, after such investment. A sum to be put out at interest explains itself; so that the intent was that the testator’s descendants named, were to take their shares in the shape of money produced by the exercise of the power of sale; and this being its main purpose it must be defeated if that purpose prove illegal.

There can hardly be a question, that the estates in land given by the seventh clause of the will pass to the testator’s descendants therein named, by virtue thereof, as real estate, in case the power of sale is defeated or never exercised or is released; that they do not depend upon the exercise of such power; and that the land does not descend to the testator’s right heirs subject to the execution of the power. It is a direct devise of all the testator’s real as well as personal estate to the devisees named : It is not conditional upon the exercise of the power of sale or the arrival of age of the testator’s youngest child: The eighth clause of the will puts it beyond question; because it directs that the share of every child of the testator who should die before his youngest should attain the age of twenty-one (including that child herself) or before a sale or division of his estate (as is in the seventh clause provided,) should go to and be divided among all the survivors in like manner as is thereinbefore mentioned: The power of sale was therefore given only to facilitate the raising of the charge for the benefit of the widow if living, on tire coming of age of the youngest child, and the division of the estate in the proportions mentioned in the seventh clause. If, therefore, the estates created by such clause were not illegal, the power was valid so far as they affect it.

The estates, given to different devisees by the seventh clause, are distinct gifts. First. Of one-ninth of the whole estate to each of testator’s sons. Secondly. Of three separate ninths thereof to his executors, in trust as to each of

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two thereof, during the respective lives of each of his daughters, and of the third during the life of a granddaughter, with the remainder in fee to the children of each on their respective deaths; and, Thirdly. Of one of four thirty-sixth parts to each of the four children of a deceased daughter of the testator. Such interests are entirely separate and distinct, far more plainly so than in the will under consideration in the case of Mason v. Jones’ Ex’rs, ( 2 Barb., 229 ; S. C., 3 Comst., 375,) where it was held that no prohibition against the suspension of alienation was created by trusts of different portions of an estate. The trust estates, therefore, created in such seventh clause only tied up each separate interest during the life of the party for whom it was so placed in trust.

The eighth clause, however, of the will in question divests the interest which each devisee, who was the testator’s child, was to take otherwise under the seventh clause, in case he or she died, without leaving lawful issue, before the testator’s youngest child should attain the age of twenty-one. It is not very material, in this case, whether the youngest child in such contingency is to be construed the youngest who should attain the age of twenty-one, or the actual youngest living at the date of the will, making the term, in the latter alternative, a fixed date in October, 1860: The remainder over, in case of a child so dying, on either interpretation, would be a future estate; vested as to the persons, but contingent as to the event, as defined in the Revised Statutes, (1 R. S., p. 723, §§ 10, 13,) and which they render alienable. (Id., p. 725, § 35.) As to the interests of the two daughters in such accretion, even if there were a suspension of alienation, it would only be as to each share during the life of the daughter for whom it was bequeathed in trust; And although there might be no persons in existence, by whom, the contingent remainder, created by the eighth clause, could be released or conveyed, until after the death of both daughters, it would only be a suspension of alienation for their

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lives, inasmuch as the remainder over only applies to the children’s, share.

The estates, therefore, for the creation of which the power of sale is to be exercised, are legal, and the power is not, therefore, void, as its sole purpose seems to be the facilitation of a division among the devisees.

I do not know whether any point was intended to be made in this case, as to the time when the power of sale was directed to be exercised, by insisting that it Avas not to be before it should be determined who was the testator’s youngest child who should attain its majority, thus possibly postponing the alienation until after the expiration of several lives. I think it can hardly be doubted, that the youngest child spoken of, in the contingency repeated so often in the will as to her attaining majority, was the youngest living child, (Mary Adrianna:) Because, otherwise, the “ home” spoken of in the third section could not be continued legally, after that child came of age, who should ultimately prove to be the youngest who should reach its majority, by the deaths of others, who might be younger in their minority; any advances previously made for the maintenance of such younger children, Avould become unauthorized; and the testator’s widow aud son would be obliged, after the majority of such youngest child, to repay any rents and income received by them preAÜously, under the fourth clause, after such majority in such case: If so, of course the exercise of such power was only postponed until October, 1860. But even if it were not so, the validity of the poAver would not be affected by the limitation of the time of its exercise, especially not upon the ground that it suspended the alienation of the estate: The suspension of alienation by a power of sale, seems to be a paradox, since it is difficult to conceive how alienation can be suspended by a power to alienate permitted by law: A power is defined to be an authority to do an act in relation to lands. (1 R. S., p. 732, § 74 :) The act when done, if recognized by law, might obstruct alienation by others, but not the mere time of doing it. In the statute, which

p. 482

declares the creation, construction and execution of powers to be governed by its provisions, (1 R. S., 732,) no restriction is imposed upon the time or contingency of exercising them : although it confines the periods for suspension of alienation by instruments executed under powers, to the same limits as those provided for future estates. (1 R. S., 727, § 128.) A power is not an estate or interest in lands; unexercised, it is an encumbrance 5 and when exercised, the act performed by virtue of it is considered and construed as done by the donor of the power: If it were otherwise, a power to sell to be exercised at a fixed future time, even a power in a mortgage, would be invalid, because lives were not taken as the periods of limitation for its exercise.

If, however,- the power of sale be taken to be one for absolute out and out conversion, as in the ease of Kane v. Gott, ( 24 Wend., 641 ,) and the estates, given in the seventh and eighth clauses, are to be considered as grafted on the proceeds instead of the land, the rales applicable to personal estate only are to be applied, and in such ease the same principles would prevail.

Judgment must therefore be rendered in favor of the executors, with the costs allowed by statute against the purchaser.