Hawley & King v. James

In disposing of the various questions' which must necessarily be decided in this cause, I shall not examine them precisely in the order in which they were discussed by either of the counsel at the hearing. For convenience, however, I shall examine several of those questions in the order of thy arrangement of the points made, for the closing argument, by (he attorney general of the United States, as counsel for the executors and trustees who were complain ants in the original suit.

From an examination of the 27th clause of the will, in connection with the other provisions of the same instrument, it is evident the testator intended that the whole of his real and personal estate which was devised to his executors and trustees, and so much of the income thereof as was not wanted for the payment of debts or other purposes of the will, should, either during the continuance of the trust or at the expiration thereof, be invested iu real property; and should be distributed and conveyed as such to those who were entitled to share in the ultimate division of the estate, at the time designated by him for the termination of the trust. The testator, however, foreseeing that it would be impossible for the trustees to have ■every thing which might come into their hands in the character of personal property, up to the last moment of the existence of the trust term, actually invested in real estate at the termination of the trust estate, did not intend to require of them an impossibility. He therefore directs, that so much of the property and income as may he -casually remaining in the hands of the trustees, uninvested, shall be'distributed as personal estate. But this would not justify the executors and trustees in keeping any part of the trust fund, or the income thereof, intentionally uninvested, merely that it might be distributed as personalty at the termination of the trust. Neither can it authorize the court to decree a violation of the testator’s manifest intention in this respect, for the purpose of sustaining other provisions of the will which are clearly illegal and void. For all substantial purposes, therefore, this must be considered as a positive direction to convert the personal estate into land, for the objects of the will. And upon the principles of equitable conversion, the whole trust fund must be considered and ¡treated as real estate, for the purpose of deciding the various questions, which arise under this will, as to the validity of the several dispositions which the testator has directed to bemads* of the trust property.

In connection with this subject, it may be proper here to remark, that the general power in trust, given to the executors and trustees, to sell or exchange portions of the real estate in Albany, New-York or Syracuse, in their discretion, cannot alter the construction of the will in reference to the provisions of the revised statutes relative to the nature and qualities of estates in real property and the alienation thereof. The mere exchange of one piece of property for another, by a trustee, under a valid power in trust, is not considered as an alienation of the estate or interest of .the cestui que trust, or person ben

The widow’s deed of relinquishment, the notice given to the trustees, the receipt by her of a share of the rents and profits of the estate devised to the executors in trust as and for her dower, and the actual receipt of a sum of money for her dower in the homestead under the decree in the partition suit, in which suit the heirs at law of the testator were parties, all of which took place within the year from the death of her husband, constituted a valid election by the widow to take her dower in the real estate, of which her husband died seized, instead of the devises and bequests in her favor contained in the will. If the legal estate was in the executors and trustees, the deed and notice, together with the receipt from them of a portion of the rents and profits of the trust estate, were certainly equivalent to an actual entry on the lands devised to them9 or the commencement of proceedings for the recovery or assignment of her dower, as required by the fourteenth section of the title of the revised statutes relative to estates in dower, (1 R. S. 752.) And the proceedings and decree in the partition suit constituted an actual recovery and assignment of her dower in that portion of the estate, and was a valid election as to the heirs at law of the testator, even if the whole devise

Neither is it necessary, by the statute, that the widow should make an entry upon, or commence proceedings for the recovery or assignment of her dower in every separate and distinct par-eel of the lands in which she is entitled to claim dower, in order to constitute a valid election, on her part, to reject the provision made by her husband in lieu of such dower. But it will be sufficient, where she has taken no part of such provision made for her in lieu of dower, if she actually commences proceedings within the year, for the recovery or assignment of her dower in any part of the lands as to which the right of election exists, or enters upon any part of such lands, claiming her dower therein. The actual recovery and assignment of her dower in the homestead, within the year, under the decree in the partition suit, was therefore of itself sufficient to determine the election of the widow, in this case, to take her dower in the whole of the testator’s estate as to which he died seized of such an interest as would entitle her to dower therein. It was also an effectual bar to any claim which she might after-wards make to any part of the provisions of the will in her favor, which were intended to be in lieu of her dower.

The legacy for the support and education of the Gourlay children was one in which the widow had no personal interest; and was not therefore a pecuniary or other provision made for her by the will, which would have barred her right of dower in She lands of her husband, if she had consented to accept and

The personal property specifically bequeathed to' the widow, in lieu of dower, did not pass to the executors and trustees, under the 18th clause of the will, as a part of the trust-fund, upon her election to claim her dower in thenestate; it being expressly excluded by the terms of the trust clause. But the legal title to that portion of the testator’s estate vests in them, by virtue of their office, as executors; to be applied or distributed as a part of his personal property not bequeathed or disposed of by the will. As such it constitutes the primary fund for the payment of debts and legacies, unless the testator has legally and effectually charged such debts and legacies upon the income of the trust fund exclusively, and with the intention of exempting, not only the principal of that fund, but also any surplus of his estate as to which he had not made any disposition by his will, from the payment of any part thereof. If the charging of the debts of the testator upon the future income of the estate only, and by anticipation thereof, as directed by the 15th clause of the will, was a violation of the spirit of the restrictions contained in the revised statutes against the accumulation of rents and profits of real estate, or of the income of personal property, then no legal provision has been made by the will for the payment of the debts out of a particular fund, and the portion of the testator’s personal property as to which he died intestate must first be applied for that purpose. The confclusions at which I have-arrived on other questions in this cause will render it unnecessary for me to decide the question whether the provision in this will for the payment of debts can be sustained.

The personal estate of the decedent as to which he died intestate being the primiary fund for the payment of his debts, a direction to pay the debts out of the income of the real estate does not discharge the primary fund, unless it is evident from the whole will, taken together, that the testator contemplated the event of his dying intestate as to some of his per

Two or three Questions arise as to the Syracuse lots claimed by Augustus James as a gift from his father in his lifetime. The expression contained in the letter to Burnet, that the writer had charged and assigned that property to Augustus, does not necessarily imply that the testator had agreed or determined to convey the lots to. him absolutely and unconditionally, without reserving to himself the right to claim the price at which he had charged them. And the fact that the testator afterwards included these lots in the inventory of his estate, at the sum of $1400, seems to strengthen the impression that he intended to reserve to' himself the right to claim payment of that amount, if he should think proper to do so, before he gave to his son a conveyance of the property. If I should arrive at the conclusion that Augustus is entitled to a conveyance of these lots, either from the trustees or the heirs at law, without paying the $1400, and it should be determined that a part of the real and personal estate of the testator is not legally and effectually disposed of by the will, the question will then arise, whether the value of the lots at the time of the gift, is not to be brought into hotchpot in the distribution of the real or personal estate as to which there is an intestacy. Under the English statute of distributions, of which our former statute on that subject was nearly a transcript, it has been decided that the provisions as to advancements and portions only apply to an actual intestacy of the parent; and that no collation is to take place 'where there is a will, although there is a surplus of the testator’s estate which is undisposed of by such will. It was so decreed by Sir John Trevor, the master of the rolls, in the case of Vachell v. Jefferey, (Prec. in Ch. 170,) a few years after the passing of the statute. And Sir William Grant expressed an opinion to the same effect in the more recent case of Walton v. Walton, (14 Ves. Rep. 324.) But it is somewhat doubtful whether the same construction can be given to the provision on this-sub

It is perfectly well settled in England that a wife is not entitled to dower in lands in which the husband had a mere equitable interest as cestui que trust. (4 Kent’s Com. 2 ed. 43. Park on Dower, 124.) Such was also unquestionably the law of this state previous to the revised statutes; although the settlement of the rule in that way was clearly a departure from the principle by which courts of equity are governed in analogous cases. The endowment of the wife of a mortgagor, subject to the right of the mortgagee, can hardly be said to be an exception to the rule, in this state ; because here the mortgagor is treated as the legal owner of the land, and the mortgagee is considered as having a mere lien thereon for the payment of his debt. This being the case, the right of the widow to dower in the equity of redemption follows of course, as a legal and not merely as an equitable right. And for this reason her dower is recoverable by an action in a court of law, (Collins v. Torry, 7 John. Rep. 278 .) It is different where the husband has a mere equitable estate in the land, either by the operation of a resulting trust or otherwise. In Ambrose v. Am brose, (1 P. Wms. Rep. 321,) where the purchase money of the premises had been paid by the husband, and a conveyance taken in the name of a third person, for the benefit of the husband, but without any written declaration of trust having been executed in the lifetime of the latter, L,oi'd Cow

The legislature, however, in the recent revision of the laws, have distinctly adopted the principle of permitting the widow to receive equitable dower in the descendible equitable interests of the husband, in real estate, which belonged to him at the time of his death. In the case of lands purchased under execution, if the purchaser dies during the fifteen months allowed for redemption, or before the actual conveyance of the land by the sheriff the statute directs the conveyance to be made to the executors or administrators of the decedent, in trúst for his heirs at law, but subject to the dower of his widow, if there be one. (2 R. S. 374, § 63, 64.) So in the case of a contract for the purchase of land, where the husband dies seized of an inheritable interest in the premises, before a conveyance of the legal estate has been given, the right of the widow to equitable dower therein, subject to the lien of the vendor for the unpaid purchase money, is distinctly recognized and declared by the legislature, in that part of the revised statutes which authorizes a sale of the decedent’s interest in the premises, under a surrogate’s order, for the payment of debts. (2 R. S. 112, § 71, 72.) This principle of giving to the widow her equitable dower in lands in which the husband had an inheritable interest at the time of his death, being thus adopted by the legislature, it is the duty of this court to cony it into effect, by giving to the widows of those who have died since the revised statues went into effect, their equitable dower in such inheritable interests of their husbands, whenever it can be done without interfering with the rights of bona fide purchasers from those in whom the legal title was vested. This principle of the revised statutes, however, extends only to those cases in which the equitable interest of

The equitable right of the widow to dower in the proceeds of the land conveyed to Burnet and Hawley, depends upon a different principle. The object of the conveyance in that case was to vest the legal title to the land in the trustees, ■and the heirs at law of the survivor of them, for the purpose ■of creating a perpetual trust, of so much of the premises as ■should remain undisposed of or unconveyed from time to time, for the more convenient vesting of the legal title to such parts of the premises as should be contracted to be sold by the -grantors, or their heirs and assigns ; but which trust could be ■determined at any time, by a joint conveyance of all the persons beneficially interested in the lands remaining unsold when such joint conveyance should be executed. The counsel for the widow is under a misapprehension, in supposing that the deed to Burnet and Hawley is a mere power of attorney, which was revoked by the death of Mr. James. He has probably fallen into this error in consequence of the recital in the deed, that the grantors had appointed Burnet their ■agent, and attorney in fact, to manage the property for then-use, and to contract for the sale thereof in parcels, subject to such orders as he might from time to time receive from them. But that appointment of Burnet as the agent to contract for the sale of the lands, in the name of and for the benefit of the grantors, and to manage the trust estate for their use until sold, ■was entirely distinct from the conveyance of the legal title in -such lands, to Burnet and Hawley in trust. And if sugh appointment was not, in fact, contained in a distinct instrument, the recital thereof in the trust deed is at most but the legal evidence of the fact that they had appointed him their agent and attorney for those purposes.. That undoubtedly was a mere power of attorney, which the persons granting the pow-

I do not consider it important to inquire, whether the legal estate in the premises remained in Burnet and Hawley at the death of the testator, coupled with the power in trust, or was vested in the grantors, subject to be divested by the execution of the trust power, by the operation of the 47th section of the article of the revised' statutes relative to uses and trusts. (1 R. S. 727, § 47, 48.) For in either case, the widow’s equitable right to dower,in such portions of the premises, or the

The whole of the legacy given to the widow, by the fourth clause of the will, for her own support and for the education and support of the children of the testator and his wife, became lapsed by the refusal of the widow to take the devise and bequests to her in lieu of dower. It is very obvious that the testator intended to give this annuity to the wife for her own benefit, to enable her to beep up the family establishment in the mansion house, which was also devised to her for life,' together with the furniture; knowing that if she had the means, her children would not be' suffered to want. And also knowing that if she elected to take her dower in his es«" tote, instead of the provision he had made for her by the will, she would have more than was necessary to keep up her family establishment, living “respectably, but at the same time prudently and circumspectly,” and much more than he appears-to have supposed necessary for that purpose: In the recent case of Benson v. Whittam, (5 Simons’ R. 22) where the testator bequeathed the dividends of certain stock in the Bank of England to bis brother A. B., to enable him to assist such-of the children of his deceased brother F. B-. as he might find deserving of encouragement, the vice chancellor, Sir Lancelot Shadwell, held that this bequest was not intended as a mere power of appointment, and that no trust was ere’-ated for the children of the deceased brother. That appears-to be a much stronger case than the present, as it is perfectly manifest here that the testator intended- his widow should1 take a beneficial interest, in a part of the annuity, at least, and the whole is given to her as a compensation for her dower in his real estate. And there is no principle upon which I can* declare a trust in favor of the children of Mrs. James as to-©

The trust term devised to the executors and trustees cannot continue, so as to retain the legal estate in them, a moment longer than is necessary to enable the trustees to perform the objects of the trusts, so far as the same am valid and can be legally carried into effect. For however long a period the estate may be nominally devised to them, by the terms of the will, whenever the legitimate purposes for which an express trust has been created cease, or have been accomplished, the estate of the trustees must terminate, under the express provision of the statute. (1 R. S. 730, § 67.) And if there are any valid powers in trust, contained in this will, that would not of themselves have authorized the creation of a trust estate, under the provisions of the 55th section of the article of the revised statutes relative to uses and trusts, but which remain unexecuted at the termination of the trust estate which is legally vested in the trustees, they may still be executed, as powers in trust, for the benefit of those who are interested in the execution of such powers. Although some of the objects for which this trust term was created, and some of the contingent remainders and future interests limited thereon, may be illegal or invalid, if any of the purposes for which, the trust estate was created are valid, and will continue during. the term, the trust estate must continue in the executors and trustees for the same period. Every future estate in real property, or future interest in personal property, which if valid would have the effect to suspend the absolute power of alienation of the one, or the absolute ownership of the other, for a longer period than is allowed by law, is absolutely void in its creation. (1 R. S. 723, § 14. Id, 773, § 1, 2.) And every disposition, made by this will, of an estate or interest in the rents, profits, or income of the testator’s real or personal property which may accrue and be received after his death, whether such estate or interest in the rents and profits or income is to vest in possession during the continuance of the trust term, or to take effect at or after the termination thereof, must be considered and treated as á future estate, and subject to this role..

It is insisted, in behalf of William and Henry James and the widow of the testator, that a trust'estate for a term in gross, or during the minorities of three or more persons in being at the creation of the trust, cannot legally be granted or devised to a trustee ; and that to render any trust term valid, the continuance of the term must be made absolutely dependant upon the lives of persons in being at the creation of the estate, and that it. must be determinable at or before the death of two such persons. This, I apprehend, will depend upon the question whether such trust estate, for a term in gross, or during minorities, can be created, for any of the purposes author

An express trust may be created, under the second subdivision of the 55th section of the article relative to uses and trusts, to lease lands and receive the rents and profits for the payment of legacies, or any charge on such lands. (1 R. S. 728.) An annuity is a legacy; and when payable out of the rents and profits of land, it is a charge upon the land. The trust to pay the annuitants out of the rents and profits and income of the estate is, therefore, sufficient to sustain the trust term in the executors and trustees until the youngest child or grand-child arrives at the age of twenty-one, if any of the annuitants so long live. As the testator has charged the rents and profits of every portion of the estate with the payment of the legacies and annuities, and conveyed the whole legal estate to the trustees, to enable them to receive the rents and profits and make such payments, the legal and equitable

The estate devised to the executors and trustees, in this case, was a term of years, in the testator’s real property of which he was seized at the time of his death, and in the real property into which he directed the personalty to be converted, for the term of twenty years and ten days; the youngest grand-child who was living at the date of the will being one year old ten days after the death of the testator. In ordinary cases of a trust for the payment of debts and legacies, or other charges upon the estate, to continue until a child or grandchild shall arrive at the age of twenty-one, the trust estate will not be determined by the death of the child or grandchild under age; but will continue until the time when- he would have arrived at that age if he had lived. (Sweet v. Beal, Godolphin, 388; Boraston's case, 3 Coke's Rep. 21, a; and per Sir J. Jekyl, in Lomax v. Holmeden, 3 P. Wm. 177; Stanley v. Stanley, 16 Ves. Rep. 506.) But in this case it is evident, from the language used by the testator, that he contemplated the possibility that his youngest children or grand-children might die under age; and that he intended the trust estate should cease whenever the minorities of the children or grand-children should terminate, either by death or lapse of time. The language used by him does not, in terms, provide for the possible contingency of the death of the youngest child or grand-child under twenty-one, after the others have arrived at full age. But in that event the will must be carried into effect according to the manifest intention of the testator; and the trust estate will cease at the death of the last who shall die under age, after the survivors have all

The 20th section, of the title of the revised statutes so often referred to, prohibits the creation of a contingent remainder upon a term of years, unless the nature of the contingency upon which it is limited is such that the remainder must vest in interest, during the continuance of not more than two lives in being at the creation of the remainder, or at the termination of such lives. (1 R. S. 724.) But this provision of the revised statutes cannot be construed to mean that no contingent remainder shall be limited on a term of j^ears, unless it is so limited as to render it certain that the remainder must, in any event, become vested in interest, Upon such a construction of the 20th section of the statute, the next section is not only useless but absurd. The 21st section provides that no estate for life shall be limited as a remainder on a term of years, except to a person in being at the creation of such estate. (1 R. S. 724.) A remainder to a person not in being must always be contingent until his birth; and until that event it cannot be known that it will ever vest in interest, in whatever form it may be limited. Even if it is to the general heirs of a person in being at the creation of the remainder, it may never become vested, as such person may die without an heir. The fair construction of these two sections of the statute taken together, therefore, is, that a contingent remainder upon a term of years must be so limited that it will necessarily vest in interest within the period required by the 20th section, if it ever becomes thus vested. And that a contingent remainder for life, to a person not in being, shall not be limited on a term of years, although it is so limited that it will become vested within that period, if ever. Neither does this 20th section of the statute render it absolutely necessary that

Applying these principles to the case under consideration, the life estates to Augustus James, and to his six brothers and sisters, and to Mary Ann King and Robert James, in the eight and a half shares of the estate devised to them respectively, exclusive of any accumulation of rents and profits or income, are valid as contingent remainders limited on a term of years. For the life estate in the share of each must necessarily vest in interest, and in possession also, if ever, during the continuance of one specified life in being at the death of the testator; to wit, the life of the child or grand-child to whom the remain

If these first remainders for life, to the seven children and two grand-children, in the eight and a half shares, vest in possession at the expiration of the trust, by the execution of the trust power contained in the 40th clause of the will, the contingent remainders in fee, in the shares which become thus' vested, which by the 44th clause of the will are in that event devised to the descendants or special heirs of the first takers respectively, are also valid. For it is evident that the ultimate remainders, in the respective shares of these tenants for life, must necessarily become vested in possession, as well as in interest, at the expiration of a single specified' life in being at' the death of the testator. To illustrate this point more clearly : If Mrs. B., the daughter of the testator, and who was in being at his death, survives until the expiration of the trust term, and becomes entitled, by the decision of the trustees, to one twelfth of the property for life, the ultimate remainder in fee in that twelfth, to her decendants, or special heirs, must necessarily become vested in possession, as well as in interest,by her death; and of course, at the termination of a single life in being at the creation of such remainder. For, where the precedent or particular estate is given to several persons, as tenants in common, the remainders limited upon the estates of a part of the tenants in common may fail, without affecting the remainders limited upon the estates of the others. (Corn. on Rem. 193.)

The several contingent estates or interests, which by the 39th clause of the will are limited to the heirs and representatives of the testator’s children, or grand-children, who may happen to die during the continuance of the trust, are contingent remainders created On a term of years, within the meaning and intent of the 20th section of the statute. By the common law, a remainder could not be limited on a base or determinable fee which was vested in interest. And such a limitation of a future estate could only be good as an executory devise. But, where the determinable fee was contingent and

A remainder is vested in interest where the person is in being and ascertained, who will, if he lives, have an absolute and immediate right to the possession of the land upon the ceasing or failure of all the precedent estates, provided the estate limited to him by the remainder shall so long continue. In other words, where the remainder-man’s right to an estate in possession cannot be defeated by third persons, or contingent events, or by the failure of a condition precedent, if he. lives, and the estate limited to him by way of remainder continues, till all the precedent estates are determined, his remainder is vested in interest. The contingent remainders in the respective shares of the children and grand-children who may die during the continuance of the trust, therefore, will vest in interest in those who are their heirs or representatives at their several deaths, if the absolute right of such heirs or representa

A remainder is contingent, although the remainder-man Is in being and ascertained, so long as it remains uncertain whether he will be absolutely entitled to the estate limited to him in remainder, if he lives and such estate continues until all the precedent estates have ceased. , But where a mere power is given to appoint a remainder among a particular number or class of persons who are known and ascertained, with a limitation to the whole number, as tenants in common or otherwise, in default ofthe appointment, the remainder is vested; subject to be divested by the execution of the power of appointment. (See Sugden on Powers, 5 Lond. ed. 151, where all the cases on this subject are collected.) In the case under consideration, the substituted contingent remainders in the -eight and a half shares, which by the 39th clause of the will are given to the respective heirs and representatives of the seven children and two grand-children who are to share in the final partition of the estate, as well as all other remainders on such partition,

I have before stated, in relation to the lapsed specific legacies to the widow, that the personal property as to which the testator died intestate, either by lapse or otherwise,, is the primary fund for the payment of debts, except where it manifestly appears that'the testator intended to exonerate the primary fund, for the benefit of a residuary legatee or of some other person ; and that where such intention is manifest, a failure of the object for which the primary fund was intended to be exempted, restores the unbequeathed fund to its primary liability. I think it will be found, upon examination, that none of the cases conflict with this principle; which is equally applicable to the failure of a bequest of the primary fund because the bequest thereof cannot take effect according to the intention of the testator, either on account of the illegality of the bequest, or for want of legal capacity in the legatee to take. In every case of this kind the intention of the testator is to govern. And where a case occurs which it is evident was not in the contemplation of the testator in exonerating

The direction for the payment of legacies out of the rents? and profits or income of the estate, by anticipation, is not a violation of the statutory provisions against accumulations. Where the testator dies possessed of a largo estate over and above all his debts, he has an unquestionable right to devise or bequeath it as a future estate, undiminished in amount; provided he does not violate any of the rules of law against perpetuities. He may, therefore, carve such intermediate estates, interests, legacies, or portions, out of the income in the mean time, as he may think proper, if it can be done without an actual accumulation of the rents and profits for that purpose. And the raising of a legacy or portion by anticipation, out of the intermediate rents and profits, is in effect nothing more than charging the estate of those who would otherwise be entitled to such intermediate rents and profits, with the payment of a sum in advance, out of the rents and profits they may after-wards receive. But an accumulation of such rents and profits,, for the purpose of raising a legacy or portion at a future day,, cannot be permitted, except where such legacy or portion is-for the sole benefit of a minor who is in existence when the accumulation is directed to commence. (1 R. S. 726, § 37, 38. Idem, 773, § 3, 4.) In the present case, if there are any directions, either express or implied, for the accumulation of the rents and profits or income of the estate, such accumlation must be considered as directed to commence at the death of the testator, although from the situation of the estate it may not actually commence at that time. And as there is no fund or portion to be raised for the sole benefit of any minor in being at the death of the testator, none of the portions or provisions for the testator’s children, or their widows or descendants, can be paid out of an accumulated fund. But such portions and provisions, so far as they are valid, must be peid out of the rents and profits and income of the current

The $50,000 legacy to the children of Augustus, so far as their life estates therein are concerned, like the legacies to Anna M’Bride and Lydia, is already vested. And the contingent remainders in their several shares of the legacy, to their descendants or special heirs, must necessarily vest in interest, if ever, upon the termination of their respective life estates ; and of course within the' time allowed by law for the vesting of a contingent remainder limited upon a term of years. And if Augustus and his present wife should have any more children, the interests of such after-born children in the legacy, as remainder-men in fee determinable by death during the continuance of the trust, "will become vested at their several births, and of course during the life of one person in being at the death of the testator. The power of appointment which is given to the parents, or trustees, in relation to this legacy, does not prevent the shares of the several children from becoming vested previous to the termination of the trust; subject, however, to be divested by death, or by the execution of the power of appointment in favor of some of them exclusively. This is a case provided for by the article of the revised statutes relative to powers. And the beneficial interest of the present children in the execution of the trust power gives them a vested interest in the remainder, which can only be divested by their death, or by the execution of the trust power in favor of others. A similar interest in the remainder will vest in each after-born child at its birth, subject to open and let in others. If those who are intrusted with the execution of the power should be living at the end of the trust term, its execution may be compelled, in equity, as its execution or non-execution is not made expressly to depend upon the will of the grantees of the power. And if they should all die, this court will decree an execution of the power in favor of all the children, of Augustus and his present wife, who may be living at the end of the trust term, equally. (1 R. S. 734, § 96, 100.) If any shares of this legacy is appointed or decreed to the children who were in being at the death of the testator, they will take life estates in such shares.

The annuities for life to those whose portions are wholly withheld, and which by the 43d clause of the will are limited as contingent remainders upon the trust term, must, so far as concerns the question of their validity, depend upon the validity of the respective remainders to the same persons for life, in their original portions of the estate. No persons, therefore, except the seven children and two grand-children of the testator, who were in being at the time of the testator’s death, and who are named in the 37th clause of the will, as being entitled to the eight and half shares on the partition of his estate, subject to the conditions, limitations and retributive purposes therein afterwards expressed, can be provided for under such 43d clause. The annuities, if any, to such persons respectively, must be raised out of or charged upon the several shares to which they would have been entitled if they had not forfeited them, by the non-performance of the condition precedent, or otherwise. And the residue of such forfeited shares must then be added to the residuary estate or fund, composed of the capital of the three and a half shares, and the capital of such of the eight and a half shares as may become lapsed by death during the existence of the trust term. If any part of this residuary fund is composed of the testator’s personal estate, after the testator’s debts and funeral expenses have been paid out of the proceeds of the specific legacies to the widow and the personal estate not legally and effectually bequeathed, such personal estate must be distributed to the widow and next of kin of the testator, according to the statute relative to the distribution of personal estates in cases of intestacy. And the real estate comprised in that residuary fund must be distributed to the heirs of the testator, according to the law of descents. For the purpose of ascertaining what is real and what is personal estate at the termination of the trust, it will

As the interest or income of the real and personal estate cannot be accumulated for the purpose of increasing the shares which are to be apportioned to the seven children and two grand-children at the termination of the trust, no investments in real estate are to be made from the rents and profits or interest, except that which is to be applied near the termination of the trusts to raise the portions for Anna M’Bride and Lydia, and for the children of Augustus. All other rents and profits and income of the trust property, which are not wanted for the immediate and legal objects of the trust, or to reimburse the capital of the trust estate where the income has been anticipated, must be distributed by the trustees, annually, among those to whom such rents and profits or income legally belong. Separate accounts must therefore be kept of the income of the real and personal estate, or of the lands in which the proceeds of each species of property has been or may be invested. And all disbursements, except the payment of debts and funeral expenses, must be apportioned rateably upon the income of each, except so much of the personal estate as is included in the three and a half shares; so that the surplus of the rents and profits of each species of property, as it existed at the death of the testator, may be rightfully distributed. The purposes for which the personal estate included in the three and a half shares was directed to be converted into realty being wholly void, it is not to be considered as equitably converted. The interest or income thereof, therefore, is not to be considered as rents and profits in making such apportionment. The personal estate • included in the other eight and a half shares must be invested in real estate, as directed by the testator. The dower of the widow in those parts of the estate in which she is entitled to dower, or such annual allowance as she may consent to receive in lieu thereof if

Tiie testator intended that the portions for Anna M’Bride and Lydia, and for the children of Augustus, should be raised near the time appointed for the termination of the trusts, so that their legacies or portions, which were to vest in possession at the end of the trust term, should be of the required value, or as nearly so as practicable, at that time. But as the time of the termination of the trust is contingent, the trustees should exercise the discretion conferred upon them by the will in such a manner, with reference to the annual income of the estate and the probable termination of the trust, that the portions may be raised during the term, and be of the required value, as near as practicable, when the trust terminates, No particular injury could result from raising the portions immediately, except as to the valuation; for the rents and profits of these portions, when raised, will, during the continuance of the trust, belong to those who are entitled to the rents and profits out of which the purchase money for these portions is to be paid. If through any inadvertence the trust estate should terminate before these portions were raised, they would not wholly fail. For as this court considers that which should have been done as done, it would direct the portions to be raised out of the rents and profits then on hand. And if the whole had been distributed, the distributees would be compelled to refund.

It is admitted by all parties, I believe, that the annuities and legacies mentioned in the ninth, tenth, eleventh, twelfth, and thirteenth clauses of the will, are valid. And if those are all legal and can be sustained, the annuities to the testator’s two sons William and Henry are also valid ; as the whole of these legacies and annuities are charged upon the rents and profits of the testator’s estate, in the hands of the trustees, during the continuance of the trust term, and in the same manner. The legacy to G-. Hawley the trustee, and the allowance to other trustees who may be appointed in the manner directed by the testator, if that mode of appointment

The capital stock of the testator, which was invested in the copartnership with M. D. Burnet, at the time of his death, should be left in the firm for the benefit of Augustus, so long as the lease and partnership continues, in case he continues to attend to the business of the firm as (he active partner, as directed by the 21st clause of the will. But he must account to the estate of the testator for the whole of such capital, whenever he ceases to act as such partner. In other words, he must sustain the loss of any diminution of the capital during the time he is permitted to use it without interest; as he is to be considered the partner, and not the testator’s estate.

The 56th section of the' title of the revised statutes relative to sales of real estate by executors and administrators, (2 R. S. 10.9,) only applied to sales of real estate for the payment of debts and legacies. And it is very doubtful whether it was intended to embrace the case of a sale under a trust power, by an executor, for the mere purpose of re-investment or exchange, as authorized by the 27th clause of this will. But this question is put at rest as to all future sales, by the act of the last session on this subject. (Laws of 1835, p. 304.) By that act, sales of real estate by executors, except where such estate lies in t.he city of New-York, may be made either at public or private sale. But every sale of real estate in that city, by an executor under an authority contained in a will, whatever may be the object of such sale, must be at public auction, upon the like notice and conducted in the same manner as is directed by the revised statutes in relation to sales under the orders of surrogates. The executors and trustees, therefore, are not authorized hereafter to sell any real estate in the city of New-York at private sale, under the authority to sell or exchange, contained in the 27th clause of this will. The authority of executors to sell the Illinois lands for the purpose of re-investment, under this power in trust, and the manner of making such sales, must depend upon the local law of that state.

The legacies of $2000, authorized to be raised out of the rents and profits, and paid to Anna M’Bride and Lydia respectively upon their marriages, are in effect but the payment of portions of their larger legacies in advance. If the $2000 is raised and paid as a marriage portion, it must, in obedience to the direction contained in the 35th clause of the will, be deducted, together with the compound interest at five per cent., from the amount of the $20,000 portion which is to be raised near the termination of the trust, and that portion will be so much less. And as these marriage portions are given to persons in being at the death of the testator, the raising of them cannot suspend the power of alienation beyond the period allowed by law. These legacies are therefore valid.

As it regards the marriage portion to Mrs. Barker, the event has not happened which was contemplated by the testator at the time of making his will. He undoubtedly intended the marriage portions to bis daughters should be payable, if ever, immediately after their respe ctive marriages. And if his widow and trustees did not think it fit and proper that the daughter should then receive a marriage portion, their power to bestow such a portion upon her would be at an end. He could not, therefore, have intended to delegate the power to his widow and trustees of bestowing marriage portions upon his

The advances which the widow and trustees are authorized to make to the sons or grand-sons of the testator, by the 31st and 32d clauses of the will taken together, were not intended to exceed in the aggregate one fourth of the probable amount to which the son or grandson, to whom the advances were made, would be entitled upon the ultimate division of the estate. The testator evidently contemplated the event of some of his sons or grand-sons studying a profession or learn

The objection that some of these advances are directed to .be made to persons whose contingent remainders are invalid, because such remainders are not so limited that they must vest in interest within the time prescribed by the 20th section of the statute, might probably be obviated by allowing advances to the sons and grandson, to whom the shares are limited in the first instance; and by disregarding the provision for such advances to those who might become presumptively- entitled to those shares at a future day.if the limitation of the remainders in the 39th clause of the will had been valid. But , there is another and more serious difficulty in this case, which affects the validity not only of the provision for advances to sons and grand-sons, as contained in the thirty-first and thirty-second clauses of the will, but-also the provision for marriage portions and advances to the daughters, and to Mary Ann King, the grand-daughter of the testator.-

Taking the whole of the provisions of this will together, it is impossible to resist the conclusion that the testator contemplated and intended that there should be an accumulation of the rents and profits of the trust estate, by his executors and trustees, during the time prescribed by him for the continuance of the trust. And for this purpose he directs them to invest all monies which may come to their hands in the purchase of real estate; except such monies as may be wanted to pay debts and legacies, and to fulfil the other objects of the trust. This necessarily includes the rents and profits of the estate during the trust term. And the whole trust estate, with such accumulations, is to be partitioned among the objects of his bounty at the termination of the trust. Such an accumulation of the rents and profits of real estate, or of the income of personal property, is clearly illegal, under the provisions of the revised statutes. (1 Rev, Stat. 726, § 37,38. Idem, 773, § 3, 4.)

But as the direction for the illegal accumulation and that only is made void by the statute, the devise as to the residue of the estate, to which such illegal accumulation of rents and profits was intended to be added, will not be affected by such void direction, if the devise of the original estate can be separated therefrom. It may also be proper here to remark, that the direction for an illegal accumulation is equally void, whether such direction be express, or is merely implied. (Vail v. Vail, 4 Paige’s Rep. 317.) In the present case, the

Although the estate of a son, to whom such an advance should be made, and who might happen to die during the continuance of the trust, would not probaly be liable to refund the amount of such advance, yet so far as regards the accumulation for the purpose of increasing the other shares, it is equivalent to a loan of the rents and profits included in such advance, at compound interest, during the residue of the term,- and the addition of a portion of this fund, thus accumulated, to the shares of the others. As this cannot be done, consistently with the restrictions in the statute against the accumulation of rents and profits or income, the intention of the testator in directing these advances to be made cannot be carried into effect, so far as relates to the seven children and two grand-children who are now presumptively entitled to the eight and a half shares of the trust estate.

It is very evident, from the different provisions of the will, that the testator intended that the marriage portions, and

' By the common law, where the legal estate was devised to trustees to preserve contingent remainders, or for any other legal purpose, so much of the rents and profits as were not legally and effectually disposed of by the testator, belonged to bis heirs during the continuance of the trust estate, by the operation of a resulting trust. (Hopkins v. Hopkins, Cas. temp. Talbot, 44. Carrick v. Erringion, % P. Wms. Rep. 362.) The limitations over to the children and grand-children of the testator, in the present case, were not intended to take effect immediately, even if the trusts are invalid so as to be insufficient to support a legal estate in the trustees. But they are to take effect and be vested in possession, by the express words of the will, only at the expiration of the period prescribed by the testator for the continuance of the trust. The intermediate rents and profits, therefore, by the common law, would have belonged to the heirs of the testator, so far as such rents and profits were the proceeds of the real estate of which he died seized ; and so far as they were the proceeds of his personal property, they would have been distributed to the widow and next of kin. A different rule, however, has been introduced by the 40th section of the article of the revised statules relative to the creation and division of estates. (1 R. S. 726.) That section provides for the case of surplus rents and profits

The trust to receive the rents and profits, and to pay the annuities out of the same, during the period prescribed by the testator for the continuance of the trust, does not render the estate inalienable beyond that time, even if a trust for the payment of an annuity is not to be considered as a trust for the payment of several sums in gross at stated periods; as the interests of the annuitants may then be sold, if not before. The annuities to such persons as are in existence at the expiration of the trust term must then be secured to them respec

The amount of the commissions to be allowed to Augustus for collecting the rents and profits of the estate, is by the 33d clause of the will submitted to the discretion of the other trustees. This discretion they may exercise from time to time, in reference to the trouble and expense of the duty to be performed. And so long as the discretionary power of the'. trustees is exercised in good faith, this court has no right to: interfere to control its exercise. The master reports that four ^ per cent, would be a proper and sufficient compensation for the collection of the rents; and if the trustees suppose with him that five per cent, is more' than a reasonable compensation for the services to be performed, taking into consideration the safety of the fund collected and the different places at which the rents are to be received, the allowance should be reduced. But as five per cent, is the usual allowance in the city of Albany, this court is not authorized to say the trustees have abused the discretionary power confided to them by the testator, by allowing that amount as a compensation to Augustus James for his services in this respect.

The trustees are not authorized to employ a clerk, and pay him out of the income of the estate, for the performance of services which the testator intended the trustees, or any of them, should perform in person. Augustus, therefore, would not be authorized to employ a clerk or agent, to collect the rents.

As the personal property of the testator is directed to be converted into real estate for the purposes of the trust, and as such conversion is valid so far as relates to the eight and a half twelfths thereof, it must in equity be considered as already converted, pro tanto. The several legacies, portions and annuities are, therefore, properly chargeable upon the income of that portion of the personal property which is included in the eight and a half shares, as a part of the real estate, out of the rents and profits of which the testator has directed the legacies, portions and annuities to be raised and paid. But as the direction to convert the three and a half twelfths of the personal estate must wholly fail, in consequence of the illegality or invalidity of the object for which the conversion was directed, it remains personal property, and cannot be considered as •producing rents and profits, within the meaning and intention of the testator. That portion of the estate, with the interest thereon, after the payment of debts and funeral expenses, may therefore be distributed, immediately, to the widow and next of kin of the testator. So much thereof as belongs to minor children, and so much of the surplus rents and profits belonging to such minors as are not wanted for their support, should be paid into court, by the trustees, or be invested by them in

A trustee who has only a delegated discretionary power. cannot give a general authority to another to execute the same, unless he is specially authorized so to do by the deed or will creating such power. A general authority to an agent to sell and convey lands belonging to the estate, or to contract absolutely for the sale of such lands, cannot therefore be given by the trustees. But they may entrust an agent with an authority to make conditional sales of lands lying at a distance from the place of residence of the trustees, subject to the ratification of such trustees or any two of them. And they may also empower him to make and execute valid conveyances of the land thus sold, upon a compliance with the terms of sale, after such sales have been so ratified by them. The purchaser in such a case, however, would probably be bound to show that this condition precedent had been complied with, in order to render his title perfect, where the conveyance was executed by the agent under such a power. The better course in a case of this kind therefore is, to entrust the agent with a discretionary power to contract, subject to the ratification of the trustees, upon his report of the facts; and that they should themselves execute the conveyance, when the terms of the sale have been complied with, and transmit it, properly acknowledged, to the agent, to be delivered to the purchaser.

So far as relates to the rights of the infant defendants who are interested in the rents and profits of the real estate, the court can authorize the trustees to agree upon an annuity, to be allowed to the widow during the continuance of the trust, if she shall so long live, in lieu of dower; to be paid out of the income of that part of the estate in which she is either legally or equitably entitled to dower. And if all the adult parties assent to it, a reference will be directed to a master to ascertain what is a reasonable allowance. But if such consent is not given, one third of the real estate of which the testator died seized must be assigned to her for her dower; and she must also have one

Th ere can be no reasonable objection to the periodical settlement of the accounts of the trustees, before a master, as asked for by their bill, so long as the suit is pending and remains in full life. It may, therefore, be referred to a master to take and state the accounts of the executors and trustees with the several and respective parties to this suit, upon the principles established by the decree; and also to report the proper form of conveyances to be taken by such trustees up. on the purchase of real estate. The master must also examine and report the facts in relation to the claim of Augustus James to the Syracuse property; and whether such property is in any way connected with the partnership, between the testator and Burnet, the profits of which were bequeathed to Augustus by the will.

As the case under consideration is very complicated, it, is probable I may have overlooked some point which should be decided at this time; and many new questions may arise out of the decision of some of the main points in the cause. None of the collateral questions which were not fully discussed on the former argument will, therefore, be considered as fully decided until the settlement of the decree; at which time I propose to hear the counsel for all the parties who choose to attend, as to any thing contained in the drafts of the decree, or the amendments to the same which they may severally present. And I will then hear a re-argument, if necessary, as to any of these collateral points.

The executors were right in filing their bill to ask the direction of the court, as they could not safely execute the trust until a legal construction was given to the will, and to the several anomalous provisions contained therein. And the