Irving and others, executors, &c. vs. De Kay and others, 9 Paige Ch. 521

The Chancellor. The first objection of G. C. DeKay and wife to the validity of the will is, that it suspends the power of alienation of the estate for a longer time than is authorized by the revised statutes. There is no question as to the validity of the bequests of the annuity to the mother of the testator, and of the income of the $5000 to Mrs. B. for life and of the principal to her daughter ; as the will directs that part of the fund to be carved out of the estate and invested separately as soon as convenient after his death.

It is true he contemplates the investment of the principal, which will be necessary to raise the annuity for his mother, to be retained until her death, and then to be divided in the same manner as the lest of the estate. But that can only affect the bequest over of the capital of the fund after the death of the annuitant; which can at once be separated from the annuity, if the limitation over is too remote as to such capital of the fund, by taking so much of the testator’s estate merely as will be sufficient to purchase the annuity, upon the principles of valuing life annuities.

It is very evident from the whole will taken together that the testator intended his executrix and executors should receive the rents and profits of the estate, or of so much thereof as should not be sold for the payment of debts &c., previous to the time appointed for the division of the property ; and an interest in those rents and profits is given to the widow and family for their support in the meantime. This would render the trust estate, or so much thereof as was not necessary to be sold to pay debts and legacies, inalienable for a term in gross not determinable upon lives, under the provisions of the 63d

section of the

article of the revised statutes relative to uses and trusts. (1 R. S. 730.) According to the decision of the court for the correction of errors in the case of James’ will, such an inalienable estate for an absolute term, not determinable at the expiration of not more than two specified lives in being at the death of the testator, cannot be sustained. I consider it conclusively settled, however, by the decisions of the court of dernier resort confirming the decrees of this court in the cases of Gott v. Cook, (7 Paige’s Rep. 521,) and of Van Vechten v.

Van Vechten, (8 Idem, 104,) that any legal trust is sufficient to sustain a devise or conveyance to the trustee, of an estate commensurate with such trust ¡ without reference to the illegal trusts which the testator or grantor has attempted to create in the same estate. And since the decision, in December 1839, of the case of Darling v. Rogers & Sagory, (22 Wend.

Rep. 483,) the court for the correction of errors has steadily adhered to and acted upon those cardinal and conservative principles, in the construction of devises and conveyances in trust, which were stated and intended to be acted upon by this court in the case of Hawley v. James, (5 Paige’s Rep. 320, 458, 459;) but which the appellate court thought were misapplied here in relation to the trusts of Mr. James’ will.

The principles stated in that case, and which are now the settled rules of law, are, that the intention of the testator, when it shall have been ascertained from an examination of the will in connection with the situation of his property, &c. at the time of making such will, must be carried into effect by the courts, so far as that intention is consistent with the rules of law ; that although some of the objects for which a trust is created, or some future interests limited upon the trust estate, are illegal and invalid, if any of the purposes for which the trust was created are legal and valid and would have authorized the creation of such an estate, the legal title vests in the trustees during the continuance of such valid objects of the trust; except in those cases where the legal and valid objects of the trust are so mixed up with those which are illegal and void, that it is impossible to sustain the one without giving effect to the other ■, and that every disposition by the testator of an estate or interest in. the rents, profits, or income of his real or personal property, and every trust in the will which if valid would have the effect of rendering the property inalienable for a longer period than is allowed by law, and every remainder or other future estate or other interest limited upon the trust which would have that effect, must be considered and treated as absolutely void and inoperative, in determining the question of the validity of a devise of the legal estate to trustees or the validity of any other provision of the will.

To apply these principles to the case under consideration : The revised statutes authorize the creation of a trust to sell lands for the benefit of creditors, or to sell, lease, or mortgage them for the benefit of legatees or to satisfy any charge thereon ; but not to mortgage them for the benefit of creditors at large. The power to give mortgages for any other purposes than such as are authorized by the statutes is, therefore, illegal and void.

But according to the decision of the court for the correction of errors before referred to, that does not invalidate the trust estate, or any of the other purposes of the trust. Again; the trust to receive the rents and profits and income of the property and to apply a part of the same to the support of Mrs. Eckford and such of the family as chose to continue to live with her, rendered the estate inalienable under the 63d

section of the

article of the revised statutes relative to uses and trusts. But as that trust was necessarily limited to the life of Mrs. Eckford, even if she should die before the first of February, 1840, the estate or interest she and those of the family who should choose to live with her had in the rents and income of the property could not render the property inalienable beyond one life in being at the death of the testator.

And as the interest she and her family had under this clause of the will was wholly disconnected with the subsequent illegal trust, to provide for the surviving members of the family after her death, that trust could not render the estate invalid in the hands of the trustees during her life. This subsequent provision depending on the contingency of her dying before the 1st of February, 1840, and being for an absolute term, not determinable by the expiration of not more than two lives in being at the death of the testator, might possibly suspend the power of alienation for a longer time than was allowed by law.

It was, therefore, absolutely void in its creation. (1 R. S. 723, § 14; 726, § 36.) And the validity of the residue of the trust is the same as if this provision for the support of the family after the death of Mrs. Eckford had not been contained in the will. I can gee nothing, therefore, which can impair the validity of the devise in trust to the executors; which devise in trust would have been divested by the death of Mrs. Eckford, upon the continuance of whose life it depended, if she had died at any time previous to 1840 j the longest period contemplated by the will for the continuance of the trust estate.

For when all the legal purposes for which an express trust is created ceases, the estate of the trustees also ceases under the provisions of the revised statutes. (1 R. S. 730, § 67.) The power to partition the estate in 1840, and to sell if the executors should think it best to do so- for the purpose of making such partition, was a mere power in trust which did not require the continuance of the legal estate in the trustees to sustain it.

And if the power to sell at the end of an absolute term not depending upon a life or lives in being at the death of the testator would of itself render the estate inalienable until February, 1840, even if Mrs. Eckford should die so as to divest the estate of the trustees before that time, that part of the power would alone be inoperative and void, according to the decision in Darling v. Rogers § Sagory, (22 Wend. Rep. 483,) and could not prevent the execution of the residue of the power authorizing the partition of the property.

The statute in terms provides that where an express trust is created which is not authorized by law, no estate shall vest in the trustees ; but the trust, if directing or authorizing the performance of any act which may lawfully be performed under a power shall be valid as a power in trust. (1 R.

S. 729, § 58.) I have no doubt whatever that the testator at the lime of making his will had in contemplation the property in the neighborhood of Love Lane, which his grand daughter then held as real estate under the deed of August, 1826, if she elected to consider that an absolute conveyance when she became of age, as well as the real estate which she then held under the will of her father and which remained unsold, as a part of such real estate inherited from her parents or one of them which was by the terms of the will to be appraised and brought into hotchpot in apportioning the residuary property among the five devisees and legatees.

That real estate, as well as her other real estate remaining unsold, was the proceeds of the bounty of the testator to Dr. Drake as his son-in-law.

And the statute of 1815, under which a part of her real estate had been sold, and the proceeds of which were afterwards vested in this property under the deed of August, 1826, in terms declared that the proceeds of such a sale should be considered, not only in relation to the statutes of descent and distribution, but for every other purpose, as if the real estate had not been -sold. (Laws of 1815, p. 104, § 5.) The property embraced in that deed was therefore in law real estate inherited from her parents, or one of them, and which was originally received or derived from the testator, within the intent and meaning of this will.

The testator also contemplated an appraisal of the property at its value at the time when the same was to be distributed, at the termination of the trust estate. For at no other time could the appraisal be made of his residuary property, to ascertain its real value as a subject of distribution, so as to produce equality.

For while the property -of the testator was charged with an indefinite amount for the support of the widow, and of such children and descendants, including this grandchild, as chose to live with her, it is evident there was no principle upon which the value of this residuary property could be ascertained.

For although the value of the life of the widow and the chances of her outliving the duration of the trust term could be ascertained by the life-tables, there was no mode by which the necessary expenses of herself and such of the children and descendants of the testator as might elect to live with her could be ascertained; so that each of the five would, with the property previously received, have an equal share of property, one not more than another, as directed by the will.

If the widow had died previous to February, 1840, so as to give to those who had received nothing their shares of the residuary estate at her death before that period, that would be the proper time to make the valuation, so as to produce the equality contemplated in the will. But as she survived beyond that period, so that the trust estate terminated by lapse of time merely on the first of February, 1840, that is the period in reference to which the appraisal must be made of the real estate of the grand-daughter, and the real estate, if any, which Dr.

De Kay had received, in connection with the testator’s residuary estate, for the purpose of settling the shares of the several persons entitled to participate in the division. There may be some difficulty in making the appraisal of the testator’s residuary estate, in February, 1840, as the outstanding claims against his estate have not yet been settled. But I understand the answer of the defendants G. C. De Kay and wife to admit that upon the principle of valuation which I have determined to be the true one, Mrs.

De Kay will not be entitled to participate in her grandfather’s bounty any further than she has already received it; by the advances to her father from which her present real estate is derived. If I have mistaken the purport of the answer in this respect, or if there was any advance to Dr. De Kay -which ought to be deducted from his wife’s share, the decree will provide for the appointment of appraisers according to the directions of the will, if the parties cannot agree upon them without the assistance of the court.

The question whether the widow was or was not entitled to dower in the estate appears to be of little consequence, if she died intestate so as to entitle each of her children and her grandchild to participate equally in her estate. But as it is suggested that she made a will, which may be valid, it is proper to dispose of that question at this time. I have examihed the will of H. Eckford in reference to this question and find nothing in it inconsistent with her claim of dower. And the recent decision of this court in the case of Fuller v.

Yates, (8 Paige's Ref. 325,) is an authority in favor of her claim as made in the original bill. Indeed, it could not have been the testator’s intention to deprive the widow of dower in his estate, unless he intended to leave her entirely destitute of a support in case her life should be prolonged beyond the 1st of February, 1840. For I find no provision whatever in the will for her support after that time. If neither of the parties wishes an appraisal, upon the principles above settled, it may not be considered necessary to sell the real estate until the result • of the suits against the executors is known.

For if those suits should result favorably to the residuary devisees, it may be for the interest of all parties to have an actual partition of the whole or of a considerable portion of the real estate which may remain. In the meantime a decree may be entered declaring the construction of the will and the rights of the parties under it, and referring it to a master to take and state the account of the executors in relation to the trust fund, and reserving further directions.

The costs of all parties thus far, however, ought to be borne by the estate; as the difficulties arising from the will itself have produced this litigation. And the costs of the executors must be taxed as between solicitor and client, so as to cover their reasonable counsel fees which they have been obliged to pay in discharge of their trust; to be settled and allowed by the vice chancellor upon taxation. (See Mohun v. Mohun, 1 Swans. R. 203. Lewin’s Law of Trusts, 456.) Decree accordingly.