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Field v. Field

4 Sarat. Ch. Sent. 528 Court N.Y. Ch. Decision date 1847-04-01 English

Contents

Majority

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Osgood Field v. H. W. Field, and others. H. W. Field and J. M. Bradhurst, Executors, &c., v. O. Field, and others.

Headnote

The revised statutes restrict the suspension of the power of alienation of real estate, and of the absolute ownership of personal estate, to lives; and authorize a limitation upon life only.
They do not admit of such suspension for a term of years, however short, or upon a limitation dependent in part upon life, and in part upon a fixed period of time.
A testator having a large real and personal estate, and having seven children, all under twelve years of age, devised and gave all his estate to his executors in trust, with full powers to lease, sell, invest and re-invest the same, for the purposes of the trust, which were as follows. They were to pay an annuity to his widow, (who died before the suit,) and were to apply so much of the estate as they should think proper, to the support and education of his children, until they
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respectively became twenty-two years of age. The testator gave to each of his five sons $10,000, to be paid to them by the trustees, at 22, and $5,000, to be paid to them at 25 years of age; and to his two daughters, each $3,000, to be paid at their marriage, with consent, &c., or at 22, if unmarried. The trustees, after providing for the payment of the foregoing legacies, &c., were to invest the whole residue of the estate as they should deem most safe and productive, and to pay the income thereof in equal parts to the children then living, and to the issue of either deceased, until the sons respectively should become 30. Each son, was at 30, to have and take his joint and equal portion of such residue of the estate. As to the daughter’s shares, they were to receive the income for life, as their separate estate, and on their death, the portion of each was to descend to their respective heirs, and next of kin. If either of the children should die, before the devises and bequests to them should vest or become due and payable, leaving issue ; the share of sueh child should not lapse, but such issue was to take his or her share, in the same manner as jf the parent had lived till it vested or became payable.
Nov. 11, 19, 20, 1846 ;
April 1, 1847.
Held, on the construction of the will, that the power of alienation, and the absolute ownership of the shares of the sons in the residue, was suspended until they should respectively become thirty; that those shares were not divisible or separable from the mass of the estate, until, and as each became thirty; that five-sevenths of the entire capital of the estate, was thus suspended without regard to any life or lives, for a fixed period of time; and that the trusts of the will were therefore void.
The testator’s whole plan for the division of his estate, being in effect, destroyed by its conflict with the rules of law, the whole of the devises and bequests for the children, which were embraced in the trust, were declared void, and the estate directed to be divided, as upon an intestacy.
The original bill was filed, October 30th, 1845, by Osgood Field, against the executors, heirs and devisees of Moses Field, deceased. The bill charged, that M. Field, the father of the complainant, being possessed of a large real and personal estate, on the 12th day of October, 1833, made and published his last will and testament, as follows:
“ I, Moses Field, of the city of New York, being weak of body, but of sound disposing mind and memory, do make and publish this, my last will and testament, in manner and form following.
First. I do hereby give, bequeath and devise, unto my brother Hickson W. Field, my friends, John M. Bradhurst and William W. Bradhurst, of the city of New York, whom I hereby constitute, make and appoint, my executors and trustees of this
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my last will and testament, and the survivors of them, all my estate, both real and personal, of every nature and description, in trust, and for the uses, objects and purposes hereinafter mentioned and expressed, and for the purposes of enabling them more fully to carry into effect the provisions of this, my last will and testament, and for no other use purpose or object; hereby giving and granting unto my said executors and trustees, full power and lawful authority to sell, lease in fee simple, or otherwise dispose of the whole, or any part of my real estate, at such time or times, in such parcels and in such way and manner, and upon such tprms and conditions, as to my said executors and trustees, or the survivors or survivor of them, in their sound discretion, shall be "deemed most advantageous, and for the true interest of my estate, and to execute and deliver all such deeds and instruments in writing, as shall be requisite to carry into full effect the powers and authority to them given, in and by this, my last will and testament; and also hereby authorize ■and empower my said executors and trustees, and the survivors and survivor of them, from time to time, as they in the exercise of a sound discretion shall deem for the true interests of the estate, to purchase with the funds belonging to my estate, such real estate as they may deem proper and expedient, and take and hold the same as such executors and trustees as aforesaid, and more especially to purchase in for the benefit and use of my estate, when they, my said executors and trustees, or the survivors and survivor of them, shall think it expedient so to do, any real estate which is or may be subject to any such judgment, decree or mortgage, as is, or at any lime hereafter may become a lien, charge or incumbrance; and again at the like discretion of my said executors and trustees, or the survivors and survivor of them, to lease, sell and dispose of the same. And generally, I do hereby fully authorize and empower my said executors and trustees, from time to time, to invest all monies belonging to my estate arising from any source whatever, and not wanted immediately or required to meet the payments and advances required to be made’ under this my said will, in such way and manner as to them' m.y said executors and trustees, or the survivors and survivor of thtim, in the exercise of a sound discretion, shall be
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deemed most safe and productive, and for the true interest of my estate. Relying on the fidelity, prudence, and good sense of my said executors and trustees in executing the various trusts and powers to them given and confided in and by this my last will and testament.
To my wife, Susan K., in lieu of her right of dower, and of ali other claims, she might or could have to my estate or any part thereof, I give and bequeath an annuity of four thousand dollars during her natural life, which annuity I hereby authorize, direct and require my said executors and trustees to pay to my said wife in quarter-yearly payments, from and immediately after my decease, upon her sole and separate receipt, and for her sole and only use and benefit. 1 also hereby authorize and empower my said wife, whether she shall be sole, or unmarried, or otherwise, by her last will and testament, duly made and executed, to give, bequeath and dispose of, in such way and manner, and to such person or persons, as she may think proper, any sum not exceeding five thousand dollars, of my estate, which sumí hereby authorize and require my said executors and trustees to pay, in pursuance of any such will, to be made by my said wife. I also give and bequeath to my said wife, the use of all my plate, and all my household goods and furniture, of every nature and description, together with alt my horses, carriages and harness, during her natural life, with the right and privilege of disposing of the same, or any part thereof, at her discretion, and appropriating the proceeds of such sale to her own use and benefit, and of giving and bequeathing the same, or any part thereof, by her last will and testament. And I likewise give, bequeath and devise to my said wife, the dwelling house I now occupy, being No. 482 Broadway, in the City of New York, as a residence for herself and family, for, and during the time she shall choose to occupy and possess the same, as such. The ground rent of said lot, and all assessments and taxes which shall from, time to time be assessed or be imposed thereon, together with all proper and needful repairs, to be made to said house and lot,
I hereby authorize and require my said executors and trustees to pay out of my estate, so that my wife may have and enjoy the same, during the time she shall occupy the same, as a residence
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as aforesaid, free from any of those charges, impositions and expenses.
I also authorize my said executors and trustees from time to to time to apply so much of my estate for the support and education of my seven minor children, hereinafter named, until they shall respectively attain the age of twenty-two years, as to them, my said executors and trustees shall seem proper, necessary and reasonable :
To my five sons, to wit, Maunsell Bradhurst, Osgood, Franklin Clinton, Hoses Augustus, and William Hazard, I give and bequeath to each, the sum of ten thousand dollars, to be paid to each of my said sons, as they severally and respectively shall attain the age of twenty-two years, and the remaining sum of five thousand dollars, to be paid to each of them as they severally and respectively shall attain the. age of twenty-five years.
To my two daughters, Susan Maria, and Caroline Matilda, I give and bequeath to each the sum of three thousand dollars, to be paid to each of them, respectively on the day of their marriage, provided they shall marry with the cousent and approbation of their mother, if living, or, in case of her death, with the like consent and approbation of my said executors and trustees, or the majority of them, or the survivors or survivor of them; should, however, my said daughters marry against the consent of their mother, or in case of her death, against the consent of my said executors and trustees, still, I authorize and require my said executors and trustees to pay said legacies, whenever thereafter, their mother shall, in writing, signify her reconciliation to such marriage, and will give her consent to the payment of such legacy, or, in case of the decease of the mother, whenever my executors and trustees, or the majority of them, or the survivors or survivor of them, shall think it discreet or proper, to pay the same. But, in case my said daughters, or either of them, shall remain sole and unmarried, at the age of twenty-two years, then, I authorize, direct and require, the legacies, aforesaid, to be paid to them, respectively, on their arriving at that age.
.After the payment of all my just debts and funeral expenses, and all reasonable and necessary expenses, incident to the execution of
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this, my.last will, together with the several legacies, bequests, and other monies to be paid, as herein before mentioned, directed and required, or, after my said executors and trustees shall have properly provided for the payment of such legacies, bequests and sums of money ; my will is, and I do hereby authorize and require my said executors and trustees, to invest the residue of my said estate, of every nature and description, in such way and manner, as they shall deem most safe and productive, and the income arising therefrom, whether the same be in rents and profits of real estate, or, _the interests or dividends derived from money loaned, or otherwise invested, to be paid in equal parts or portions, to my children, which shall then be living, and, in case any or either of my said children shall have died, leaving lawful issue, to the issue of such deceased child or children, so that the issue of such deceased child or children, shall be entitled to, and take, in equal parts or shares that portion of my estate, which would have been coming to his, her, or their parents, until my before-named sons, shall respectively, attain the age of thirty years ; and, as my said sons shall respectively attain the age of thirty years, my will is, and I do hereby order and direct, that my said sons respectively, shall have and take their joint and equal portions of such residue of my estate. The shares or portions of my estate, which shall be set apart for, or intended for the use and benefit, of my two before-named daughters, under this my last will, shall not be paid to them, my said daughters, or either of them, but the income only arising from the same, shall be paid to them, respectively, during their natural lives. And in case of their marriage, such income to be applied for their sole and separate use and benefit, and to be paid upon their sole and separate receipt for the same. And. at the decease of my said daughters respectively, the shares or portions of such residue of my estate, which shall be appropriated, or set apart, for their use and benefit, or the portion from which they shall respectively be entitled to receive the income therefrom, in pursuance of this my will, shall go and descend to the heir-at-law, or next of kin of my said daughters respectively, in the way and manner, as if my said daughters had been in possession of such share or portion, and had died intestate.
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And I do further will, order and direct, that, in case any or either of my before-mentioned children shall die before any or either of the legacies, bequests, or devises, given to them, respectively, under this, my last will and testament, shall vest or become due and payable, leaving lawful issue ; such legacy, bequest, or devise, shall not lapse, but shall go and descend, or be paid over to the issue of such deceased child or children, in -the same manner as if such deceased child or children had lived, until the legacies, bequests or devises, given, bequeathed and devised to him, her, or them, respectively, under this my will, had vested or had become due or payable, so that the issue of such deceased child or children shall have, hold, take, and receive the legacies, share, or portion of my estate, which would have been coming to the parent of such issue if living. And lastly, I do hereby revoke and annul all other and former wills by me made.”
The bill further stated, that Moses Field, in the same year 1833, departed this life, and his will was duly admitted to probate by the surrogate of the city and county of New York, on or about the 26th day of December, A. D. 1833 ; and that Hickson W. Field, of the city of New York, nominated as one of the executors, was duly qualified to act as such, and' letters testamentary were thereupon granted to him, on the 25 th day of January, 1834.
That on the 31st day of March, 1840, John Maunsell Bradhurst, of the city of New York, also nominated as one of the executors in the will, was also duly qualified as such executor.
That William W. Bradhurst, nominated in the will as one of the executors, has never qualified, nor acted in any manner in the premises.
That Moses Field left him surviving, his widow Susan K. Field, and the seven children mentioned in the will, all of whom were at the time of their father’s death, infants under the age of twenty-one years; and that their mother, Susan K. Field, departed this life in the year 1834.
The bill further stated, that the acting executors upon the death of the testator, took possession of all his estate, real and personal, and have managed the same ever since. That they
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have passed their accounts as such executors, up to April 1st, 1844. That the complainant and his brother, Maunsell B., are both of full age ; and the other five children are still infants, the youngest being eleven years old. That the net annual income of the estate, is now $16,000, of which $7000 is derived from real estate.
The bill charged that the trusts of the will were invalid and void, and it prayed that the same might be avoided and set aside, and the testator declared to have died intestate, as to all his property except that specifically bequeathed. That the executors might account, and pay over and deliver the property to the heirs at law and next of kin, according to their respective rights and interests ; and for general relief.
The answer of H. W. Field and J. M. Bradhurst, the executors, admitted the facts set forth in the bill. It stated that a suit in chancery had been prosecuted against them, together with the heirs and devisees, by Charles A. Williamson and others, for the recovery of a large and valuable portion of the testator’s real estate, together with a large sum for the rents thereof; in which a decree had been pronounced against the defendants by the assistant vice-chancellor.[1]
That a suitable indemnity should be made to the executors, out of M. Field’s estate, in respect of that decree, and their liability thereon. And that the executors had filed a bill in this court, asking a construction of the will, and the direction of the court in the premises ; to which they were ready and desirous to submit themselves.
The infant defendants answered by their guardian ad litem,
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to the original bill, as well as to that of the executors, and the cause as to them, was brought on upon a master’s report of the truth of the statements in the bills.
The cross bill of the executors, set forth the will, their proceedings under it, the passing of their accounts, and the suit, decree and appeal, in Williamson’s suit. It submitted that the will was valid, and asked the protection and direction of the court in the premises; claiming in any event, an indemnity against the decree in favor of Williamson and others.
The cause was brought to a hearing on the original and cross bills, and the answers to the same. All the persons in being, who had an interest or a possibility under the provisions of the will, were parties to the suit.
John Jay, for the complainant in the original suit.
The general frame work of the will may be thus stated. The testator devises to his executors and trustees, with full powers to sell, lease, or otherwise dispose of, all his real and personal estate, in trust, for the uses and purposes therein mentioned, and for none others.
1. The trustees are directed to apply so much of the estate as they shall think proper, to the support and education of his seven minor children, until they shall respectively attain the age of twenty-two years.
2. After the gift of an annuity, &c., to the widow, (who is long since dead,) the testator gives and bequeaths to his five sons, each ten thousand dollars, to be paid to them as they arrived at twenty-two, and five thousand dollars more at twenty-five years; and to the two daughters, three thousand dollars each, to be paid on their marriage, if with consent, <fcc., or at 22 if then unmarried.
3. The trustees are generally directed to invest all' moneys, pot immediately wanted or required to meet the payments and advances required by the will, as may be most safe and productive to the estate.
4. They are specially required, after paying all just debts, and the several legacies, bequests, &c., or providing for the payment of the same, to invest the residue of the estate of every
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description, and to pay the income thereof in equal parts to his children who should then be living, (that is at the age of twenty-two years ;) as to the issue of any deceased child, so that the issue shall take the share which would have been coming to the parent; until the sons respectively should attain the age of thirty years.
5. As the sons respectively attain the age of thirty, they shall have and take their joint and equal portions of the residue of the estate.
6. Shares or portions, are to be set apart for the use and benefit of the daughters, the income of which is to be paid to them during their respective lives, and on their deaths, the principal is to descend to their heirs at law.
7. The testator specially provides, that in case of the death of any child, leaving issue, before the devises, bequests and legacies, shall have vested or become due' or payable, the same shall not lapse, but shall go to the issue in the same manner as if the deceased child had lived until they had vested, or had become due and payable.
On this we make the following points :
I. As to the accumulation directed.
The direction to the trustees to invest all moneys not immediately wanted, &c., coupled with the direction to apply so much of the estate as they shall think proper, to the education and support of the seven minor children until they respectively attain the age of twenty two years ; authorizes and requires an accumulation of the rents and profits during that period ; and such direction as regards the time beyond the minority of the children, is void. (1 Rev. Stat. 726, § 37; Hawley v. James, 5 Paige, 481, S. C. 16 Wend. 117 ; Vail v. Vail, 4 Paige, 328.)
II. As to the trust term for the five sons.
1. The will clearly contemplates and intends, that the estate shall be kept in bulk, undivided, without partition or allotment among the sons, until they respectively reach thirty years, when each in turn is to take his share of the residue ; and in case of the death of a son leaving issue, as the issue is to take the exact portion which would have been coming to the parent if living, the taking is necessarily postponed until the period when the
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parent, if living, would have become entitled; for until that period arrived, it would be impossible to determine what the share would be. This fixes an absolute term for the continuance of the trust estate, and suspends the power of alienation beyond that period prescribed by law. (Boynton v. Hoyt, 1 Denio, 53 , 59 ; Van Vechten v. Van Veghten, 8 Paige, 110.)
2. The bequest of the income to the children who should then be living, (to wit, at the age of twenty-two respectively,) is not vested, but contingent on their being then alive; and lapses in case of the death of the legatee before that age, without issue. A special provision alone preventing it from lapsing in case of the death of a child leaving issue. (Patterson v. Ellis, 11 Wend. 259 , and cases quoted in the opinion of Ch. J. Savage ; Preston on Legacies, 77, 80, 81, 83 ; Manning v. Herbert, Ambler, 579.)
3. The devise to the sons of their respective shares of the residue of the estate, as they respectively attain the age of thirty years, is contingent upon their attaining that age, and will lapse on the death of a son under thirty, without issue ; because,
(as) Such is the legal and settled construction given to the same and similar language used in devises.
(b) Such was the evident intention of the testator, as shown by the special provisions, that in case of the death of a child without issue, before the devise should vest, the devise should not lapse, but should go to the issue as if the parent had lived, until the devise had become vested. (Judd v. Judd, 3 Simons, 525 ; Newman v. Newman, 10 ibid. 51; Festing v. Allen, 12 Mees. Welsby, 279 ; Duffield v. Duffield, 3 Bligh, 331, 335; Haw ley v. James, 16 Wend. 242 ; Rowe v. Briggs, 16 East, 406 ; Doe v. Scudamore, 2 B. & P. 289 ; Doe v. Bagshaw, 6 T. R. 512. Also, 2 Merivale, 363, 394 ; 1 Dougl. 75 ; 2 Keen, 203 ; 1 Beavan, 100 ; 14 Wend. 266 ; 5 Queen’s Bench R. 224 ; 13 Wend. 178 .)
4. The share of each son in the income and in the residue of the estate being contingent, and lapsing in case of his death without lawful issue, the power of alienation as regards such share, may be suspended beyond two lives in being, and the
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devise is consequently illegal and void. (Hawley v. James, 16 Wend. 120 ; Boynton v. Hoyt, 1 Denio, 53 .)
III. Of the trust for the two daughters.
The two shares to be set apart for, or intended for the daugh* ters, are devised in trust, not contingently, but absolutely ; a life estate in the income being given to the daughters, and the principal, on their deaths, to their legal heirs. This devise does not contravene the provisions of the statute, and being distinct and separate from the illegal portions of the will, must be maintained. (Parks v. Parks, 9 Paige, 117, per Walworth, Ch.; Darling v. Rogers, 22 Wend. 433 ; Kane v. Gott, 24 ibid. 665; Coster v. Lorillard, 14 ibid. 265 ; Hawley v. James, 5 Paige, 318 ; Van Vechten v. Van Veghten, 8 ibid. 110.)
IY. Of the legacies. The legacies are distinct, independent and valid provisions of the will, and their interest became vested in the legatees; because, First; They are separated from the estate of the testator, Second. The gift is immediate and absolute, although the payment is postponed. (Patterson v. Ellis, 11 Wend. 259 ; Hone’s Ex’rs v. Van Schaick, 20 ibid. 564; Kane v. Gott, 24 ibid. 664; Hawley v. James, 16 ibid. 181, opinion of Bronson, J. ; 8 Paige 105 ; 9 ibid, 117.)
Y. Of the power of the trustees to partition. The devise of the residue of the estate, with the exception of the two shares intended for the daughters, being invalid, no estate vested in the trustees, but the same descended immediately to the sons as heirs at law. But the direction to the trustees, to divide the estate among the sons, as they respectively came of 30 years, should be regarded as a power in trust, void only as to the time at which it was to be executed, and valid so far as to authorize a sale and partition of the property among the parties entitled thereto. (Irving v. De Kay, 9 Paige, 521, 530. And see 8 ibid. 105 , and 4 ibid. 328.)
Horace F. Clark, for the executors, the complainants in the cross suit, argued the following points.
I. By means of the provisions of the will, the whole of the residuary estate of the testator, is divided into seven separate shares or trust funds, or into as many shares or trust funds as
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there might be children of the testator or issue of such children living at the time of his death.
This distribution of the estate, was to take effect immediately upon the death of the testator, and is not required to be postponed to the period when the sons of the testator shall respectively become entitled to the possession of their several shares of the estate. There is therefore no suspension of the power of alienation of any portion of the estate for an absolute term, or for any longer period than a single life in being at the time of the death of the testator. (The counsel referred to and commented on the will cases of Lorillard, 14 Wend. 265 ; James, 16 ibid. 120; Hone, 20 ibid. 564; and Pye, MS.)
II. It was the evident intention of the testator, that after making provision for the payment of the annuity to his widow, and the other specific charges of the will; separate shares and portions of his estate should be set apart for each of his children, and such intention is manifested by the very language of the will. The shares so set apart or appropriated for the several sons of the testator, are directed to be held by the executors in trust for them severally, until they shall respectively attain the age of 30 years, when they are permitted to take possession of their several shares. The power of alienation of each share, is thus suspended until the son for whom it was set apart, shall attain the age of 30 years, and such suspension cannot by possibility extend beyond a single life. In case of the death of any one of the sons, under the age of 30, his share at once descends in fee, and the suspension of the power of alienation ceases,
III. The separate shares or portions of the estate set apart for the daughters of the testator, are to be held by the executors in trust for them severally during their respective lives, and such shares are limited over in fee to their heirs at law or next of kin. The power of alienation of the shares of the estate set apart for each of the daughters of the testator, is therefore not suspended beyond a single life.
IY. The income of the several shares of the estate of the testator, is directed to be paid over to his children. The period when the payment over of income is to be made, is not postponed ; and the children of the testator, or the issue of a de
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ceased child, are therefore entitled to take the income immediately. No accumulation is directed, or necessarily implied, and there can be none without a violation of the express directions of the will.
Y. The authority to the executors to apply from time to time, so much of his estate as they should deem necessary, for the support and education of his children, until they should respectively attain the age of 22 years, was intended to justify them in the expenditure at their discretion, of the principal of their several shares for the purpose of their support and education up to that period, if their lives so long continued. After that period, the income only is to be appropriated. It is not necessary that the estate of the testator should be kept in bulk and undivided, in order to carry this intention into effect. The provision in question, does not relate to the income of the estate, of which entire disposition is made in a subsequent portion of the will, This provision of the will can therefore have full effect, without contravening the statute prohibiting the suspension of the power of alienation for an absolute term, or that prohibiting the accumulation of the income of real or personal estate beyond the expiration of the minority of the persons for whose benefit such accumulation is directed.
YI. The whole will can without any violation of its terms or plain intent, be so construed as to contravene none of the provisions of law. If so, such construction must be given to it, and the necessary consequential directions must be made to give effect to such construction, notwithstanding the peculiar frame of the will.
It is presumed that no question will be raised as to the validity of the purposes of the several trusts of the will, under the provisions of the revised statutes.
VIL If it should be held that the direction to the executors to withhold from the sons of the testator, their several shares of his residuary estate, until they shall respectively attain the age of 30 years, necessarily causes an illegal suspension of the power of alienation ; or that for any other cause the general plan of the will must be disturbed, it is in that event submitted, that such equitable adjustments should be directed between the sons and
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daughters of the testator, as shall secure a just and equal division of the estate among them.
VIII. In any event, all the acts of the executors in and about the execution of the will, should be ratified and confirmed, and their accounts since the first day of April 1844, to which time they have heretofore accounted,) should be settled in such manner as the court may direct. They should also be directed to retain in their hands, out of the whole estate, a sufficient sum to make provision for the event of the final affirmance of the decree appealed from in the suit of Williamson and Wife and pthers. The executors should also be allowed their costs of the suit to be taxed, and their reasonable counsel fees to be paid out of the estate.
Theodore Sedgwick, for the infant defendants.
The general scope of the will in question, is as follows r
The testator first devises and bequeaths to his executors all his estate, real and personal, in trust, with power to lease, sell, and invest, all monies not wanted for use.
After making a provision for his wife, he authorizes the executors and trustees, to apply as much of his estate to the support and education of his seven minor children, till they respectively attain twenty-two, as the executors shall think proper.
He then gives and bequeaths to each of his five sons, the sum of $10,000, to be paid to them as follows $5000 to be paid to each of them, as they severally and respectively attain twenty-two, and the remaining $5000 to be paid to each of them as they respectively attain 25.
He then gives and bequeaths to his two daughters, each the sum of $3000, to be paid to them respectively on the day of their marriage, provided they marry with consent, &c.; but if they are sole and unmarried at 22, the executors are required to pay the legacies on their arriving at that age.
He then directs his executors and trustees, after the payment of debts, &c., and legacies, or after the trustees have provided for them, to invest the residue of his estate, and to pay the income in equal parts to the children who shall then be living; (in case any of the children have died, leaving lawfiil issue, they
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to take in place of the parents,) until they shall respectively attain the age of 30, and as they attain 30, they are to take their equal parts of the estate.
The shares or portions of his estate, which shall be set apart for, dr intended for the use and benefit of his daughters, are not to be paid to them ; but the indome only, for their natural lives, and on their decease, to their heirs at law, or next of kin.
If any of the children die leaving issue, before the legacies, bequests or devises, shall vest or become due or payable, the legacy, &c., is not to lapse, but to go to the issue of such deceased child, as if they had vested, or had become due and payable.
On the construction of this will, I submit the following points :—
I. Yhe trust term violates the provision of the statute. The whole estate being vested in trustees, until the five sons respectively attain the age of 30; and no provision being made for the shares of the sons who die before that period, without issue, those shares must, in such case, go over, and thus the power of alienation may be suspended for the lives of more than two of the sons ; this is fatal. (Coster v. Lorillard, 14 Wendell, 265 ; Hone v. Van Schaick, 7 Paige, 221, 231; 20 Wend. 564 .)
II. The estate is undivided in the hands of the executors; and that the shares of the sons go over, in case of their respective deaths before the age of 30, without issue, is apparent from the whole scope of the will.
1. The testator has provided, in regard to the daughters, that their shares are, at all events, to go to the next of kin.
2. He has provided for the shares of the sons leaving issue.
3. He has omitted to make any provision for the case of their dying without issue.
4. He has used technical language, and declared that they are not to vest; and the result, from the silence as well as the language of the will, is, that the shares of the sons who die without issue before attaining 30 years, go over.
III. The only partition contemplated by the will, is as the sons respectively attain 30. The contrary supposition is absurd ; for first, there is no such power given by the will, although it is minute in its description of the powers of the exec
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utors ; and second, no such power is requisite to carry into effect the objects of the testator.
IV. The legacies are all future and contingent, and to be raised out of the general trust fund. They cannot be separated and saved, but must go with the general fund to be divided among the children of the testator, as next of kin. (Hone v. Van Schaick, 7 Paige, 221 ; S. C. 20 Wend. 564 .)
V. The legacies being payable at a future day, cannot be paid by the executors out of the personal property, as such. They are charged on the trust fund, and if the trust is bad, they must necessarily fail.
VI. The legacies due the daughters, must clearly fail on this ground, and if this be so, it will be more consonant to the testator’s intention, that all the legacies should fail. (Birdsall v. Hewlett, 1 Paige, 33; Marsh v. Marsh, 2 Edw. 156 ; Patterson v. Ellis, 11 Wend. 259 .)
VII. If the trust fund could be held good as to the shares of the daughters, on the .ground that the portions are to be set apart absolutely, invested, and not dependent on more than two lives ; still, the remainder of the trust, as to the sons, being void, and the trust one and indivisible ; the whole trust term must fail. The power to make partition, must share^ the fate of the trust term ; and if the latter is bad, the former must fall with it.
VIII. If the trust can be sustained as to the daughters, it must still be declared void as to the sons, and their shares must descend to them as next of kin or heirs at law of the testator.
IX. There is evident accumulation intended by the will; and the idea, that the testator meant his executors to expend the principal of his estate on his infant children, is utterly inadmissible.

The testator has vested his whole estate, real and personal, in his executors as trustees, upon a variety of active trusts, which, if valid, confer upon them the entire legal title.

Their validity turns upon the construction of the residuary clause in the will.

After providing for his wife’s annuity, and the payment of pe

p. 545
cuniary legacies to all his children, the testator directs the whole residue of his estate to be invested, so as to be safe and productive. No conversion of real estate is enjoined ; and he evidently contemplated that a part of the residue would be real estate, for he speaks of the rents and profits as forming a part of the income. It may be observed further, in this connection, that the residuary gifts are future estates and interests, and it is therefore wholly immaterial in the discussion of the validity of the trusts, whether the property be regarded as personal estate or as realty.. (See Arnold v. Gilbert, before the late assistant vice-chancellor, May 23, 1846.)[1]

Pursuing the will, the trustees are to pay the income arising from the whole residue, in equal parts or portions, to his children who shall then be living, and to the issue of any who shall have died, (the latter receiving, per stirpes;) until the sons should respectively attain the age of thirty years. As they respectively attain that age, they are to have and take respectively their joint and equal portions of the residue of the estate. The daughters, however, were to have merely the income of their shares or portions during life, for their separate use, and upon their death, the capital was to go to their respective heirs at law, and next of kin, as upon an absolute ownership of the daughters and their intestacy.

There is a further provision, that if either of the testator’s children, should die before any of the legacies or devises given to them respectively by the will, should vest or become due and payable, leaving lawful issue ; such legacy or devise should not lapse, but should descend or be paid to such issue, in the same manner as if such deceased child had lived until the legacies or devises to him, had vested or become due and payable; so that such issue should have, take, and receive the portion which would have been coming to their parent if living.

It is perfectly clear, that the interest of the five sons in the capital of the residue, is an expectant estate, which will never vest in possession, unless they attain the age of thirty. It was argued that they have vested estates in the residuary realty,

(a) (a) 3 Sand. Ch. R. 531.

p. 546
which are liable to be divested in the event of their dying before they become thirty. But that does not affect the point as to the suspense of the power of alienation. Whether their interest be deemed thus vested, or be contingent, it is equally certain that they cannot convey a valid title, until after they attain the prescribed age.

As to the personal property constituting the residue, their interest in the capital is entirely contingent.

Therefore if the residue must, by the terms of the will, remain in mass until some one of the sons, or until the eldest son shall attain the age of thirty years; the power of alienation of the realty, and the absolute ownership of the personal property, are suspended for the same period and upon the same contingency, and the trusts must be declared to be void. The statute restricts the suspension of alienation and ownership to lives, and upon life only. It does not admit of a suspense for a term of years, however short; nor as these trusts are, if to be thus construed, dependent in part upon life and in part upon a fixed period of time. (Hawley v. James, 16 Wend. 61 ; Boynton v. Hoyt, 1 Denio, 53 ; Thompson v. Carmichael’s Executors, 1 Sandf. Ch. R. 387.)

Is the residuary trust divisible at once into seven distinct shares, each to be held separately upon the prescribed trusts until the sons respectively become thirty years of age; or is it to be kept by the trustees entire, until some one of them, or until the eldest, attains that age 1

The direction as to the income, in the first place, treats it as an entirety. It is the income of the whole, which is to be divided equally; not the income of the respective shares to be paid to each. It is true that this form of gift is not decisive, and might be readily controlled by other clauses showing an intent to sever the interests of the respective children at the inception of the trust. But it is a circumstance to be weighed, and when not so controlled, is one of considerable importance..

Next, if any child die, leaving issue, before one of the sons becomes thirty, the issue of such child are not to take his share of the capital, but are still to receive their parents share of the income of the entire residue. This is a very strong circumstance to

p. 547
show that there was to be no such division of the residue into shares, at the outset, as was contended by the executors. And it is in perfect harmony with the last paragraph of the will, which carries the absolute interest in the share of the deceased children to their respective issue, in the same manner, (and of course at the same time,) as if such children had lived until the devises and legacies had vested and became payable.

The provision for paying income to the issue of such children as shall die before the sons respectively become thirty, extends to the daughters as well as the sons. Such are its literal terms; and this construction is rendered indisputable, by the use of the same term, “ children,” in the last paragraph of the will, upon which I have just commented.

The same paragraph reflects a stronger light upon the residuary clause. It shows that the testator himself supposed he had so far made his principal devises and bequests contingent, that without further express provisions, the issue of such of his children as should die during the contingency, would be cut off from sharing in his estate. He thereupon sought to prevent a lapse by additional clauses. In those clauses, he uses technical and appropriate language, applying “ vest” in respect of the realty, and “becomepayable” in respect of the legacies; and the whole plainly shows that he had previously limited a period within which the devises and legacies to all his children should not vest or become payable. That period is found in the provision for investing the capital of the estate and paying the income to the children and their issue, equally, per stirpes, until the sons should respectively become thirty years of age.

The construction of this vital portion of the will, may be fuiv ther illustrated, by supposing that the trustees had acted upon the belief that the residuary trust was divisible in the outset; and after paying the debts, providing for the annuity, and setting apart what they deemed sufficient to meet the pecuniary legacies, and to support and educate the children ; they had divided the residue in seven equal shares, as nearly as it was practicable. From the nature of the case, these shares would consist of different kinds of property. Suppose further, that the share of Osgood Field, had consisted mainly of United States Bank stock, which

p. 548
at that era was esteemed equal, as an investment, to any other known security, and it had remained thus invested until this day ; would Osgood Field, if he were now thirty years of age, be compelled to receive his seventh part of the estate in such a worthless investment? Would he not call on the trustees to show him the clause in the will which authorized them in 1834, to divide the residuary estate among the children of Moses Field, and apportion this security to one, and that house and lot to another ? Would he not point with conclusive force, to the provisions which I have noticed, as imperatively requiring them to keep the estate entire until his elder brother became thirty, if he should so long live; and if he should not, then until Osgood became thirty • and on the happening of the first event of that kind, for the first time to divide off one clear seventh part of the residuary estate ?

It appears to me that the positions which I have attributed to Osgood Field in the events supposed, are unanswerable; and that the testator did not expect or intend, to have the shares of any of his children in the capital of his residuary estate, either absolutely fixed, or the amount absolutely ascertained, until his sons respectively attained the age of thirty years.

The provision in a previous part of the will, authorizing the trustees from time to time to apply so much of the estate as to them might seem proper, necessary and reasonable, for the support and education of his seven children until they should respectively attain the age of twenty-two years; corroborates this construction. If the children all survived till the year 1852, his eldest son would then become thirty, while the two youngest would still be under twenty-two years of age. And the eldest by attaining his age of 22, would cease to be supported under this provision, eight years before he would take a vested interest in possession in the capital of the estate; during all which time he would need his share of the income of such capital, for his own maintenance.

It is therefore evident, that the provisions for education and support, and for distributing the income of the residue, were to be operative concurrently for a long period; and as the early death of the testator has established it, for a period of nearly

p. 549
twenty-two years. And it follows, that out of the residuary trust estate, the trustees were to educate and support the children who were under twenty-two, before any distribution of the income of that residue. The extent of the expenditure which from time to time, would be requisite for such support and education, could not be anticipated with precision, nor any previous appropriation made or set apart for the purpose. If this conclusion be correct, it presents an insuperable obstacle to any severance of the residue into shares, at the testator’s death, corresponding with the number of the children. And this too, without resorting to the argument which was pressed by the heirs, that the trust for education and support enables the trustees to apply the capital as well as the income of the whole estate.

The intention of the testator, as in my judgment, it is expressed by the will in connection with the situation of his estate and his family, may be thus stated. His executors were to take his whole estate, except the portions specifically devised and bequeathed to his wife, and manage it under the ample powers bestowed in the introductory part of the will. They were to pay the annuity to his wife, and educate and support the children. If there were a surplus of income, after this was done, it became distributable equally among the seven children, and they were to have the same absolutely. As the sons respectively became twenty-two years of age, the executors were to pay them $10,000 each, and the further sum of $5000 each, on their becoming twenty-five. The daughters were to receive $3000 each on their marriage with consent, &c. As to both sons and daughters, their support from the estate at large was to cease at the age of twenty-two. The payment of these legacies from time to time, would reduce the residuary capital, and of course the net surplus income, which was to be divided among the seven children. If either of the sons should die before he became thirty, his share of the residuary estate would lapse if he felt no issue. If he left issue, they would take his proportion at the time when he would have become thirty, and in the mean time, would receive his share of the surplus income.

p. 550
When any of the sons became thirty years of age, he would withdraw his proportion of the capital, (a suitable deduction being made for the unpaid legacies,) and cease to participate in the income. This would be the first division of the estate; and the residue, at least the proportions of the remaining sons who were under thirty, would continue together in the hands of the executors, and be divided off as the sons respectively attained that age,

I think it was also the testator’s intention, (though not material in this case,) that if either of his sons died without issue before he became thirty, his proportion or share should fall into, or rather continue in, the residuary estate, and pass to all the surviving children and their issue under the will. If after one of the sons became thirty and had taken out his share, another of the sons should die under thirty and without issue; it might be necessary, if the will were upheld, to consider the testator as having died intestate as to the share thus lapsed.

As to the daughters, their interest were limited for their lives only, and upon their respective deaths, their proportions were to go to those who would have taken them by law, on their dying intestate in possession as absolute owners.

This brief outline of the testator’s intent, as derived from the will, confirms my construction upon its terms, that the residuary trust estate is to continue entire and undiminished, without regard to the dropping of the lives of his children, until one of his sons shall attain the age of thirty years. The trust is therefore void.

The will in this case differs from that of the late John Mason, which was before me when assistant vice-chancellor, (Mason v. Mason’s Executors, 2 Sandf. Ch. R. 432.) There the testator carved out distinctly, the equal undivided fourth parts of the half of his estate which he gave to the trustees; and each fourth part was separately bestowed upon the beneficiaries therein, and devolved separately, till its final vesting in posses-' sion; with a single exception as to the beneficiaries for life, which was found to be explicable in connection with the other provisions. In this case, there is no separation and no treatment of the property as existing in, or as being composed of, distinct

p. 551
shares, until the period when one of the sons, by attaining his age of thirty, shall become entitled to one seventh of the residuary estate, and may withdraw it from the custody of the trustees.

The invalidity of the trusts, applies to the provisions for the daughters, as well as to those for the sons of the testator. If it were otherwise, the former could not be upheld, because of the consequent inequality and injustice. The daughters and their issue would each receive one-seventh of the estate, and then share equally with the sons in the remaining five-sevenths.

The bequests of the legacies must share the fate of the principal trusts. The testator’s whole plan for the division of his estate is not only disturbed : it is in effect destroyed, by its conflict with the rules of law. It is impossible for the court to say that the testator, if he could have anticipated this demo-^ lition of his scheme, Would still have bestowed the large legacies Upon his sons and the smaller sums on his two daughters, with their clogs and restrictions.

The legacies are to be raised out of the estate demised in trust. As I have already shown, they must be paid from time to time, out of the residuary fund, as they fall due; and the income from their amount until thus paid, forms a part of the income which by the will is to be used and appropriated for the support and education of the children while tinder twenty-two, and the surplus of which is to be distributed among all the children.

The legacies are thus interwoven with the void provisions of the will. They are part and parcel of the trust devise rendered null by those provisions; and I think that equity as well as sound morality, requires that they should be set aside, in common with all the more important directions of the testator respecting his family. As to the power to make the division or partition to the sons at thirty, its object being to carry out an illegal trust, it cannot be sustained.

There must be a decree, declaring that the testator died intestate as to all the property which by the will was designed for his children. All the acts of the executors in the execution of the will, are to be ratified and confirmed. As it will be difficult,

p. 552
if not impracticable, to ascertain how much has been expended for the support and education of the elder children, the requisite equality between all the heirs may be effected, by directing the executors to pay to each of those who are under twenty-two years of age, such sum as may be deemed necessary for their support and education until they attain that age. The accounts of the executors must be passed by a master, who will report also upon the proper allowances for support and education. The master will ascertain what sum is necessary to provide for the result of the suit of C. A. Williamson and others against the heirs and executors of Moses Field, and what indemnity should be made to the executors in respect of the decree in that suit. The personal estate, after making provision for the suit of Williamson and others, is to be distributed among the children as next of kin. The costs of all the parties are to be paid out of the estate.

Cases cited