Root, appellant, and Stuyvesant, respondent, 18 Wend. 138

After advisement, the following opinions were delivered : By Chief Justice Nelson. This case involves the question, whether the will of the late Nicholas W. Stuyvesant, made in October, 1828, but republished, with some slight alterations, in February, 1833, is valid within the provisions of the Revised Statutes.

The chancellor has come to the conclusion that it is not valid; that so much of it is void within these statutes," that the residue cannot be upheld without altogether defeating the testator’s intention, and depriving the children, the chief objects of the testator’s bounty, as supposed, of any beneficial interest under it.

He therefore concluded the real estate had descended to the heirs at law, and that they were capable of conveying the fee to a purchaser. [267] It must be conceded that the executors did not take the legal estate, as the trust could not uphold the devise of it to them within the statutes, (1 R. S. 728, § 55, 16 Wendell, 114, 115,) which transferred the uses and trusts for the benefit of both sons and daughters into possession, who took the legal estate of the same quality and duration, and subject to the same conditions as the beneficial interest intended to be given. (1 R.

S. 727, § 47.) This operation of the statute upon the will, however, may be said to be nominal, because the trust therein created is not inoperative; it may be executed'as a power, according to the express provisions of the statutes. (1 R. S. 729, § 58, and 732, § 77, 78.) Partition may be made and conveyances executed in strict accordance with the directions of the testator by the executors, with the same effect as if they- took the legal estate. The only difference is, that now they act simply under a naked power, instead of a power coupled with an interest.

There is nothing, therefore, in this view essentially interfering with the will. The life estates may be conveyed, and the life tenants vested with the power of leasing and of appointment. [268] As to estates in remainder to the grand-children, subject to the power of appointment by the life tenants. These are no doubt valid, whether regarded as vested or contingent remainders.

Laying out of view the power of appointment, the devise is a common and simple family settlement: the testator giving to his nine children separate portions of his real estate for life, remainder to their children in fee, regarding grand-children as representing a deceased child, and if none, then over to the testator’s right heirs. It is obvious that these remainders must vest in possession at the termination of a life—the life of each of the nine life tenants respectively. On the decease of one,' the estate passes directly to the children or lineal descendants absolutely; if none, then to the right heirs.

In no event can the power of alienation be suspended beyond one life ; the statute allows it to be for two. (1 R. S. 723, § 15). It is also perfectly clear, that the remainder in each case would become vested on the birth of a child, there then being no contingency to happen but the death of the tenant for life, which, as well settled, does not make a remainder depending upon it contingent. Such vested remainder, however, would be subject to open for the purpose of letting in the after-born children, brothers and sisters, and would also be subject to the power of appointment. (Tanner v.

Livingston, 12 Wendell, 83. Fearne, 227, 238, 313, 314.) It appears to be well settled, that until the execution of the power, the remainders or limitations over take effect the same as if no such power existed, or as in case of default of execution of it. (Cunningham v. Moody, 1 Vesey, sen., 174. Doe v. Martin, 4 T. R. 39. Fearne, 227 to 232.

Sugden on Powers, 2, 5.) The doctrine is very clearly and succinctly stated by Fearne ; and Sugden, after discussing the cases on the point, observes that the result of the authorities is, that the power of appointment does not prevent the vesting of the estates limited in default of appointment. They are of course subject to be divested on the execution of the power. [269] [270] Next, as to the power of appointment. This is also valid, as will be seen upon a brief reference to the authorities.

The only objection that can be started to it is this, that regarding- its range and extent, the life tenants might appoint estates contrary to law ; such as successive estates for life to grand-children, and other persons not in being at the creation of the estate, in violation of the 17th §, 1 R.

S. 723, because the power authorizes each to devise or appoint “ to or in trust for any one or more of his children, grand-children, nephews and nieces, for such estate or estates, &c., as he shall think fit.” There is nothing, therefore, in the terms of the power restraining the appointment to be made* under it, to the estates or line of perpetuity prescribed by the Revised Statutes ; and hence it is supposed the power itself cannot be upheld. The point is clearly settled otherwise. In Hockley v.Waresbey, (1 Vesey, jun., 150,) the devise was “ to R.

R. and his issue lawfully begotten, or to be begotten, to be divided among them as he should think fit; and in case he should die without issue,” then .over, &c. The validity of the power was not the point in question ; but it came up incidentally on an objection that the word issue would extend to grand-children, or any other degree of kindred, however remote.

The lord chancellor remarked that it would be so," but only in this point of view, as a description of the objects, among whom the power of the son was to obtain, to make such partition ás he should think fit; and whosoever they were, they must be in existence during the life of the son, thereby restraining the exercise of the power within the limits prescribed by the general law of the land. In Routlege v.

Dorrell, (2 Vesey, jr., 356,) the devise was to assign or transfer the trust premises, &c., among all the children and grand-children or issue of the intended marriage, &c., in such shares and proportions, and under such restrictions, limitations and conditions, and at such times, &c., as the said Richard and Elizabeth, or the survivor, by deed should appoint.

There the power was as broad and unlimited as the one under consideration, but the master of the rolls entertained no doubt that it was competent to the parties to have appointed among all the issue living at the death of either of them, whether in the first, second or third degree ; and though the words were not confined to grand-children living at the death, yet as they might appoint to such as were then living, such appointment would be good. On this point Mr.

Sugden, in his valuable Treatise on Powers, remarks, that a general power to a person in esse to appoint to children or issue, without expressing the time within which they must be born, is good; for the donee muy appoint to such issue as are within the line of perpetuity. (Vol 1, p. 182, 499.) As a kindred principle to the one we are considering, we may refer to the cases, where' it has been repeatedly held that a power of sale and of exchange, not restrained to lives in being and twenty-one years afterwards, but general in its terms, is valid; in all these cases, it should be remarked, the sales were actually made in the lifetime of the tenants for life, who were in esse at the date of the settlements. (Biddle v.

Perkins, 4 Sim. 135, 138, n. 140. 2 Crompt. & Jer. v. 334, 339. Sugden on Powers, vol. 2, p. 495, 496.) If these authorities and principles may be relied on, then it is clear that the only objection that can be made to the power in question, namely, that it does not in terms restrain the appointment of estates under it to those prescribed by law, and therefore may possibly be so executed as to create a perpetuity, is altogether untenable; and that it is enough if the grantee of the power is not required, in the execution of it, to make such a limitation.

If he may appoint estates that are permitted under the statute within the scope of the power, it will be upheld. The court will not presume an unlawful execution, when it may be executed consistent with the rules of law. In the language of Mr. Sugden, if the power is within the line of perpe tuities, that is, if it may be thus executed according to its terms, the line can always be di-awn, find there appears to be no reason why it should be deemed void in its creation. Next, as to the power to lease, given to the life tenants.

The will in this respect is as follows: “I hereby empower such son to make leases for a life or lives, or terms of years, of all or any part of his share, &c., so that no such lease shall be for a longer period or term than a life or lives in being at tiie time of the making thereof, or for a longer term of years than sixty three-years.” The Revised Statutes (1 R. S. 733, § 87) only permit a power to be conferred on a tenant .for life to lease a term not exceeding twenty-one years, and to commence in possession during life.

Now the only objection that can be made to this power to lease is exactly the one taken to the power of appointment, namely, that the life tenant may within the range of it make a lease exceeding the twenty-one years; and it is difficult to perceive any reason why it should not be subject to the same rule which controls in the case of the power of appointment.

There is notliing im perative upon the life tenant in respect to its execution; the lease may be made for twenty-one years or less, or it may be altogether omitted; and, therefore, there is nothing in the power to preclude the execution precisely according to the statutory limit. If it is to be declared void in its creation, it must be for the reason that the grantee of the power might possibly make a lease exceeding the twenty-one years, that is, for life or lives, or sixty-three years; in other words, might make one not consistent with the rules of law.

But we have seen that this affords no ground for declaring it invalid; that the court will not presume an execution contrary to law, when the power does not require it; and that the true test in respect to its validity, is, whether it may be executed within the limits prescribed by the statute, consistent with the terms and import of the power. [271] [272] The conclusiveness of this view in upholding the power to lease, cannot be denied, unless the rule of

interpretation has been changed by the 92d § of the

article upon powers. (1 R. S. 733.) That provides that “no beneficial powers, general or special, hereafter to be created, other than such as are already enumerated and defined in this article, shall be valid.” The

section asserts only what must have been the necessary construction of the

article without it, because the first

section abolished all powers as they then existed, and declares that thereafter the creation, construction and execution of them shall be govenn d by the provisions of the article. The authority, therefore, for upholding this or any other power, must have been found in this article. Even if the 92d §.had been omitted, it neither adds to nor takes from it, but in terms declares what must otherwise have been pronounced by the courts, namely, that a power inconsistent with the law, is void. -The principle of the

section is not new, but existed before the statute ; the only, effect of it is, that instead of looking into the common law for the rule to determine whether a power is well granted or not, we must now look into the statute. At common law a power to devise lands so as to tie them up for lives in being and twenty-five years, and not otherwise, would have been void in its creation, as tending to a perpetuity, just as a power now would be void under this 92d § to a tenant for life to lease lands for twenty-five years and not otherwise.

Thus constructed it would be void, because the grantee could not execute it according to its terms, without limiting, in the one case, an illegal estate, and in the other, without making a prohibited lease. No act could be done under it consistent with the rules of law. The power is unlawful throughout its whole scope and extent, tying up the donee t.o limit the particular estate, or to make a particular lease which the law had condemned.

But as we have seen, where the power is general, or to appoint estates to children, grand children, or issue, without in terms restraining it within the line of perpetuity, and where apparently an appointment might be made too remote, it is valid, for the reason that the appointment may be made within the proper limit consistent with the power.

And upon the same principle and course of reasoning, where a power to lease is general, or, which is the same thing, for life or lives, or a term not to exceed 63 years, inasmuch as it may be executed within the jegal limit (the 21 years) consistent with the terms of the power, I do not perceive why we are not warranted in holding it valid. Taking up the power and applying the statute, there is no difficulty in harmonizing them. True, if the statute permitted a lease for lives or term of 63 years; the grantee might reach that tunn; but as twenty-one is the extent, he may stop there.

The duration of the term is not prescribed but left to the judgment of the donee of the power ; that must be regulated by the law of the land, and he is bound so to regulate it. [273] If, then, it be said that the power is not in conformity with any of those enumerated and defined in this article, and therefore invalid, according to the terms of the 92d §, it may be answered, that the proposition assumes what may be denied, to wit, that it is a power to lease for a term exceeding 21 years.

If it were so, I admit it would be invalid; but it is not the true construction, according to the cases already referred to; and indeed the principle upon which they were put, repudiates it, because they hold that a general power, though it might be executed so as to exceed the legal limit in a given case, is nevertheless to be deemed a power consistent with the rules of law. In the language of Mr. Sugden, and it is taken from the master of the rolls in Routlege v.

Dorrell, a general power to appoint to children or issue, without expressing the time within which they must be born, is good; for the donee may appoint to such as are within the line of perpetuity. Now if the power there which was general and unlimited to appoint estates to issue, though unborn and however remote, was not considered a power to appoint beyond the limit allowed by law, how can it be said here that a power certainly not more general and unlimited, is one to make leases for terms exceeding 21 years.

There the power was deemed to be brought within the proper limit, lives in being and 21 years, by the restraint of the law; and so here, it is brought within the like limit, the 21 years, in the same way. If the one was not a power to appoint estates contrary to law, surely the other cannot be to make leases in violation of the statute.

The discretion to be exercise in the execution in the one case is as absolute as in the other; in neither are they required to create an illegal estate. [274] Independently, also, of the authorities upon which the foregoing conclusion rests, it will be found to be sustained by the most solid and satisfactory reasons. A general power, says Mr. Fearne, of appointing an estate or interest ad libitum, though enabling the donee to limit the fee, does not ascertain any estate to be limited; therefore no limitation of the fee arises until it be actually appointed under the power.

The appointment, when executed, may not reach the fee ; it may stop at an estate for years, for life, or in tail; and until the appointment be complete, the power amounts no more to a limitation of the fee, than it does of an estate tail or any other ascertainable interest; equally within the extent of the power, but in which the execution of it may terminate without limiting the whole fee. (P. 230.) Now, reasoning upon the terms of the present power in this way, it must be said it ascertains no particular estate to be limited; no lease for life or lives, or for sixty-three years ; it may be for twenty-one years or less ; and until actually executed, the power amounts no more to a limitation of a lease for life or lives, or sixty-three years, than for the twenty-one or less; or, in the language of Mr.

Fearne, to any other ascertainable interest within the extent of the power. While, therefore, it continues merely potential, we are not at liberty to say, that it is a power to make leases beyond the limit of the law; because we see from the

interpretation of the courts, it may with equal propriety be considered a power within that limit. Whether within or beyond, is controlled by the execution; if the lease is made' within, it is valid, if beyond it is invalid, as to the excess, and nothing more. This has been repeatedly decided, as in Campbell v. Leach, (Amb. 740,) where, under a power of leasing for twenty-one years, a lease of twenty-six years was granted, and held void only for the excess. (2 Ves. sen. 644; 3 Ch.

R. 610; 2 Sugden on Powers, 81.) Again: the principle which must be established upon invalidating this power, appears to me to be most unsound and mischievous in its operation. It is this, that the possibility of the abuse of an authority, is enough to dissuade the court from upholding it. This is the utmost that can be urged against it, as it cannot be denied but that the life tenant may make leases for twenty-one years or under; that all the force of the law .comes in to restrain him to such an execution, and that if presumption is to be indulged, it is in favor of it.

The more sensible and practicable principle is, the one for which I contend: that where the power is general, as a power of sale and exchange not confined to be exercised within the line of perpetuity; or a power to appoint to issue, without expressing the time within which to be born, as it may in either case be executed within the legal limit, the court will consider it thus confined, and though general in terms, being subject to the operation of the law, it will be regarded simply as a power to make such sales or appointments within the scope of it as may be valid; a construction which, when applied to the case under review, will restrain the power to lease to twenty-one years or under, and thus save it so far as is consistent with the statute. [275] It is, I think, important that this common law rule of construction should be adhered to, if it can be, consistently with the statute; for upon any other, no power under the

article will be sustained, unless drawn within the very terms of it. This would be exacting a precision before unknown ; and probably endanger many titles to real property derived through powers since these statutes took effect.

The profession naturally look to the common law for the rule in giving effect and operation to those specified in the statute, presuming that the limitation there prescribed is no more peremptory or destructive in its effect than that which existed before ; that inasmuch as a general discretionary power might then be brought by construction within lawful bounds, and is deemed to that extent operative, so it would be since. No possible evil can grow out of this view, as applied to the statute powers; because if the proper limit is exceeded in the execution, the excess will be void.

This we have seen is the common law rule, and it is now in the statute.‘ By the 123d §, 1 R. S. 786, “ no disposition by virtue of- a power shall be void in law or in equity, on the ground that it is more extensive than was authorized by the power, but every estate or interest created, so far as embraced by the terms of the power, shall be valid.” The terms of the power in this case being thus brought by construction within the proper limit, a lease beyond twenty-one years would of course be void for the excess.

The argument, therefore, against the view I have taken, is founded altogether upon a technicality; it destroys the object and intent of the power, when both might be saved. Without pursuing this branch of the argument farther, if I am right in my conclusions, it follows that the entire will is valid: the life estate to the sons and daughters, the power to lease, and of appointment, and in default thereof the remainder over to the special and general heirs.

Every intent which the testator had in view may be fulfilled with the exception that the discretion of the life tenants to make leases upon their estates is somewhat restrained; the latitude given exceeded the limit of the law; but it may be said to be an unimportant disappointment when compared with other provisions of the will, and ought not to be permitted to work its destruction.

Neither does this view supersede the effect of the t)2d §; that operates where the power is so granted that an execution is impracticable within its terms agreeably to those enumerated in the article; as also to cut down' a more general discretionary one, than allowed within the prescribed limit. [276] But if 1 had come to a different conclusion, and been obliged to hold the power to lease void, still I could not concur with the court below in breaking up the other independent portions of the will.

This, though a valuable provision in respect to the estates of the life' tenants, is not so connected with them, but that they can be easily separated ; nor are they at all dependent upon it. They constitute a distinct independent estate of themselves, well known to the law; and common in these family settlements. Even if the power is given up altogether, we cannot but see that every part of the inheritance is still well devised, and goes to the persons intended by the testator; there is no necessity for the interference of the court; Mr.

Stuyvesant did not intend to die intestate, in respect to any part of his estate, and unless we interfere, he will not, [277] There are numerous cases where powers which were engrafted upon family settlements, have been declared void, but the estates themselves, if well limited, remained.

In the case of Sir John Lade, (3 Burr. 1416,) who devised his lands to trustees in trust for a person in strict settlement, and also divers remainders over in strict settlement; with a power that as often as any of the tenants for life, or in tail, for the time being entitled to the possession, should be under the age of twenty-six years, the trustees should enter and take the rents and profits, and dispose of them as therein directed, the power was declared void, as tending to a perpetuity, but still the settlement was not in any other respect disturbed.

The Duke of Marlborough attempted to create a perpetuity by empowering his trustees on the birth of a son of any tenant for life, to revoke the uses before limited to him in tail male, and reappoint the estate to him for life ; it was apparent that in this way the estate might be carried through any series of generations. The power was declared void for that reason, but the limitations of the estate in the settlement remained good. The principle is a familiar one, and was not intended to be disturbed by the chancellor.

He argues that the general and important intent of the testator was, to give a beneficial estate to his children in preference to remoter descendants; and that the loss of the power so far defeats this intent that the will cannot consistently be upheld. But it must not be forgotten that it is at least equally clear that the testator did not intend his children should take the fee: that-he secured to their children, or descendants. For aught we can know he had good reasons for thus withholding it. He may have considered them improvident or incumbered with debts.

Indeed, we see that he released by his will a judgment against the respondent to the amount of nearly $30,000. Suppose debts existed against him large enough to sink the estate ? The considerations which influenced the court below in defeating the will, would then entirely fail. The beneficial interest sought to be secured to the respondent, would only operate as, a benefit to the creditors. We cannot comprehend the operations of the mind of the testator, and hit with certainty the motive that led to this provision.

The nearest approximation to be made, is by considering the language he has used; and regarding it with all the extraneous lights that have been put forth in the bill and answer, I am still unable to say, that the intent to give the power to lease, was paramount to that which operated to give the estate for life; or that if he had known the power to be void, he would have given the fee.

On the contrary, the peculiar and special feature of the will appears to be the provision which secures beyond contingency, the estate to the descendants of his children; that is the object and end of the whole will; the life estates, the power of appointment, and the remainders over in default, are all in furtherance of this design and agreeably to the rules of law. Thus the life estates are an inseparable part of the scheme of this family settlement, and must be maintained to carry it into effect.

If I must take the place of the testator, and decide for him, whether he would give up the power to lease or the residue of his will, as both cannot stand, I must say, he would have yielded the former; that the disposition of the residue does not necessarily hang upon it; indeed, it constitutes no part of the testator’s estate, as the whole is well devised without it; it would improve the value of the gift to the life tenants, and may be regretted that it cannot be sustained, but the estate still remains to them, and it seems to me to be yielding too much to this diminution of value by the loss of it, to permit it to work so potent an effect as to destroy the estates of the life tenants, all the estates in remainder, and the other powers in the will; to destroy, in other words, a legal and valid disposition of the entire estate of the testator.

Upon any view, therefore, that I have been able to take of the case, I am of opinion that the estate is well devised, and that the decree below should be reversed. By Justice Bronson. [278] The executors did not take the legal estate in the lands ; it vested immediately in the devisees. (1 R. S. 727, § 47, 49, 58.) But the ¡authority to make partition was valid, as a power in trust. (§ 58.) We may then consider the case as though the devise had been made directly t« the sons and daughters of the testator.

It is not material to notice that the sons and daughters were to take unequal portions; and for the purpose of rendering the question to be decided more simple, I shall consider the case as though all the devisees had been provided for in that clause of the will which relates more particularly to the sons.

The general frame of the will is as follows: The testator gives to each of his nine children, an estate for life in his or her portion of the land, with power to make leases for life or lives, or for a term not exceeding sixty-three years; and a power by last will to devise and appoint the estate to one or more of the children, grand-children, nephews and nieces of the devisee, for such estate, and subject to such powers and provisoes, as the devisor shall think fit.

And for want of such appointment, and so far as the same shall not extend, the testator gives the estate of each devisee to his or her children and grand-children in fee; and if the devisee shall leave no children or grand-children, the testator then gives the estate to his own right heirs for ever. The questions are, first, whether any and what portions of the devise are void; and second, if any

part is invalid, whether that will overturn the whole disposition. [279] 1. The estates for life, and the remainders over in default of appointment by the devisees, are free from all possible objection. The power of appointment is also valid. The only objection urged against it, is, that the devisees may appoint a life estate to a person not in being at the death of the testator, which the law will not permit. (1 R. S. 723, § 17, 129.) This objection goes to the mode of executing the power, rather than to the power itself.

The devisees may appoint a life estate to a person in esse at the death of the testator, and they may‘appoint a fee to any and every object of the power, and such appointments will be valid. The power is conferred in general terms, and most of the modes in which it can be executed will be free from objection. If an illegal execution is attempted, it will fail; but the possibility that the grantee of the power may attempt to do a nugatory act under it, cannot overturn the power itself. If it were a power to do a particular illegal act, the power itself would be void.

But a general authority to dispose of an estate, either by deed or devise, cannot be invalid, merely because there is a possible mode of execution which the law will not permit. Although the power to make leases is broader than that authorized by the statute, (§ 87,) I am inclined to the opinion that it is not wholly void, but that leases for a term not exceeding twenty-one years would be valid. But as this will abridge the power of leasing, as contemplated by the testator, the argument against the will is of nearly 'the same force as it would be had the power failed altogether.

I shall, therefore, in the further examination of the case, assume that the power is worthless. The case will then stand thus : Considering them separately, the life estates, the power of appointment, and the remainders over in fee in case the power shall not he executed, are all valid. The power to make long leases is alone void. This brings us to the second general question. 2. Will the failure "of the power to lease overturn other portions of the will, which are in themselves free from objection?

The children of the testator insist that the whole will must fall; and that instead of taking life estates with a power of appointment under the will, they are entitled to the whole estate as heirs at law.

They say, that owing to the peculiar circumstances of the property devised, the life estates without the power of leasing, are of no value; that the power to lease was a beneficial interest, inseparably connected with the estate; and that the intention of the testator has been so utterly defeated by the failure of the power, that the whole devise must fall to the ground. [280] [281] The written arguments on which this case has been submitted, assume that a life estate in the lands devised, without the power to lease in the manner contemplated, by the testator, is of no value.

Although this seems to be an amicable suit, I find no such fact in the statement and admissions of the parties. It appears from facts admitted, that the lands devised consist, in part, of about 600 vacant building lots in the city of New-York, which are so situated that large sums of money must be expended in levelling the ground, pitching and paving streets, constructing and draining sewers, forming public squares, preparing the property for public improvements and exigencies,, and placing it. in a condition to be attractive to purchasers and productive to the. owners.

It also appears that the tax.es and assessments upon the property have been heavy, and that a part of the land has been sold by order of the court of chancery for the payment of those charges.. It may be true, though I am unable to infer the fact from these statements, that a life, est.ate in the 600 vacant, lots would be worthless.

Such a conclusion is rendered the more doubtful from, the allegation in the bill, that the lots “ are in the vicinity of the compact part of the city ; and in. the ordinary course of rapid growth to which the city seems, destined, these lots, will soon be required for buildipg, and form, a portion of the well-built part of the city.”- I am unable to say that a. life estate in such property is not, worth having. Had the devise been made to (strangers instead of children, I cannot decide that they would reject the gift for the want of power to make long leases.

If a life estate in the vacant lots be in truth worthless, and that fact is deemed important, it should have been plainly stated. But if a life estate in. the. vacant lots i.s worth nothing, it. may still be that the devisees, have acquired very valuable interests under the will. We are not told how much improved property was included in the devise ; how many houses, stores and shops may now be yielding an annual revenue to the devisees.

It does appear by the bill, that besides the vacant, lots, there were “lots, with buildings erected thereon.” How many such lots there are, and what is the annual value of this. part, of the prqperty, is. not disclosed. There is,, however,, an. allegation in the. bill in relation to the income of the property in these words: “ that the. aggregate revenue of all the shares of the real estate, excepting those of your orator and Mrs. Gatlin, does not exceed, two hundred dollars per annum.” This, leaves us as much in the dark as we were before.. How much revenue is received by the Complainant and Mrs.

Gatlin on their shares of the estate, seems to have been purposely kept out of view. In attempting to state “ the aggregate revenue of all.the shares,” why should two shares have been excepted.? If it was important for the court to know anything-about this matter, it was important to know everything. If seven of the devisees only get $200 per annum from, the real estate, we cannot guess that the other two get no more.

It is possible that in the partition which has been made between the devisees, the improved- property, or as it is called, in the bill, “ lots with buildings erected thereon,” all fell to the shares of the complainant and Mrs. Gatlin; and that those whose shares are at this time less productive, were compensated in the quantity of land assigned to. them. We must judge of this matter as the testator left it, and not in, reference to any subsequent arrangements between the devisees.

There is nothing in the bill from which we are authorized to infer that a life estate in the lands devised is not worth ten or twenty thousand dollars, or even a much larger sum per annum, without any power to make long leases. The argument constantly assumes a state of facts that does not appear to exist.

W e cannot, from, anything alleged in the bill, pronounce that these áre “ barren life estates,” or “ worse than barren estates;” that they are “ worthless,” or that. “ the soul of the gift, has fled,” leaving nothing to the children but “ the empty shells and husks of an estate.” The.facts of the case not only fail to support but. they actually contradict, these statements. It is not alleged in the. bill, that a life estate in the the vacant lots alone, would be worthless ; and if we must resort to conjecture, I have no doubt that it would be of considerable value.

But including all the lands devised, we know that a life estate is valuable. The fact is admitted, though the amount of annual revenue is not stated. [282] The most that we are authorized to say upon the pleadings, is, that a power to make long leases -would probably render the life estates more valuable. The devisees have an undoubted right, as an incident to their estate, to make leases for their own lives respectively, or they may lease from year to year.

If they could lease for a certain term of sixty-three years, it is probable that a larger annual rent could be obtained, especially for the unimproved part of the property than would be paid for leases depending on the uncertain continuance of human life. If they were authorized to make leases for sixty-three years, they could only take the rents and profits during life; the subsequent rents would go with the inheritance.

The will prohibits them from taking any fine or reward on making leases, and they could gain nothing by the power to make them, beyond the difference in annual value between such leases as are contem plated by the power and leases depending on life.

What that difference would gj, we have no means of determining; it is not stated by the parties, nor are any facts given, from which we can make a probable estimate. [283] The case is then narrowed down to this : The testator gave life estates to hia children, with a power to make long leases, and a power of appointment among their descendants,- and in default of such appointment, the testator himself disposed of the remainder in fee. Every thing is legal and valid, except the power to lease, which has failed'.

The estate without the power, is not worthless, though it is less valuable than it would be, had the power been legal. Can we, on this state of facts, pronounce the whole devise void, and hold that the lands have descended to the heirs at law ? I think not. I can discover no legal principle which will conduct us to such a conclusion. The testator has given way to a feeling which seems to be very common among men of large estates, and has attempted to continue his property as long as was practicable in his own family.

But as he has not created an illegal perpetuity, we have no choice but to execute the will, so far as it is consistent with the rules of law. Much as I may regret that the immediate descendants of the testator -will probably fare worse than his more remote posterity, it is not in my power to apply a remedy. If the case had been much stronger than it is—if, as the argument supposes, the whole value of the life estate depended on the power to lease, I should still be unable to say that the devise was void.

For the purpose of meeting the argument in its full force, I shall assume that the life estates without the power, are in truth worthless. It may be very proper that the whole will should fail in such a case; but it belongs, I think, to the legislature—not the courts—to declare that such a consequence shall follow. . It is said that we can declare void those parts of the will which are in themselves free from objection, either on the ground that there is an inseparable connection between the life estates and the power to lease, or because the failure of a part of the intent of the testator defeats the whole.

Although the two grounds have not been kept very distinct by the counsel, I shall consider them separately. We cannot act on the notion that the case is a hard' one, and that somehow or other we have the power to apply a remedy. If we can declare the whole devise void, it must be on some legal principle which can be plainly stated.

Kothing can be more dangerous in the administration of justice, than to.give way to what may seem the natural equity of a particular case, when we can find no solid ground on which to place our decision. [284] There is no inseparable connection between the life estates and the power to" make leases.

A power, as defined by our statute, is an authority to do some act in relation to lands, or the creation of estates therein, or of charges thereon, which the owner granting or reserving such power, might himself lawfully perform: (§ 74.) It is not an estate or interest in the land, but an authority to create an estate or interest. A power may be given to a person who has an estate in the land, or to a mere stranger. The name of' the power is different in the two cases, but its nature is not changed. In either case, it is the execution of the power, and not the power itself, which creates property.

The authority granted to each of these devisees to make leases, would at common law be termed a power appendant or appurtenant, because it depends on the estate of the person to whom the power is given. The power must to some extent have its operation out of the estate of the person executing it.

The lease is served out of the whole fee, and either wholly, or 'pro tanto, displaces the life estate. (1 Sugden on Powers, 43.) Under our nomenclature, it is called a beneficial power, because no person other than the grantee has, by the terms .of its creation, any interest in its execution. (§ 79.) Had the power been granted to a. stranger, it would then be termed at the common law a power simply collateral, and under our statute a power in trust. (§ 94, 5.) The power was no part of the estate of the tenants for life. It neither enlarged 'nor imparted any new quality to that estate.

The estate was as complete without the power as it wa^ with it, though the execution of the power might render the enjoyment of the property more beneficial to the devisees. It is in vain, then, to contend that there is an inseparable connection between the two things. The testator might have granted the one without the other; and although he has granted both, the devisees may retain the estate without executing the power. Indeed, we cannot know that it ever would be executed, had it been valid.

It is impossible to maintain that there is such an indissoluble connection between the estate and the power, that the one cannot exist without the other. Although both were created by the same instrument, they are not the same structure. The one may stand while the other falls, because they do not rest on the same foundation. The one is legal, the other illegal. [285] We are referred to the cases on the will of Mr. Lorillard, and that of Mr. James, (14 Wendell, 265, and 16 id. 61;) but there is nothing in either, which can aid the respondent.

In each of those cases, all of the estates and interests which were declared void, sprung out of an illegal trust; they were built on the trust, and necessarily fell with it. They had no separate existence, but were part and parcel of the trust; and declaring that they must fall with it, was little more than affirming the axiom that the whole includes all its parts. It may be conceded that by giving the power to make long leases, the testator intended to make the life estates inore beneficial.

Still they are distinct gifts, and if the failure of the one can destroy the other, it must be on some other ground than that of an inseparable connection between the two things. [286] The remaining argument against the validity of the will is, that the intent of the testator having failed in

part it must fail altogether. This argument concedes, what cannot well be denied, that there is no inseparable connection between the life estates and the power; but inasmuch as the estates without the power will be of little or no value, it is said that the intent of the testa!or has been so far frustrated that the whole devise must fall to the ground. The statute has given us no such rule as this, nor have we been referred to any authority in support of the position.

The notion that one part of a will, which is in itself free from objection, can be overthrown on the ground that another independent provision is contrary to law, is of very recent origin. I find no trace of- it in adjudged cases. It has often happened that a part of the intent of a testator has failed, but courts have never ventured for that cause to declare the residue of his purpose void. Very striking cases have arisen under the statute which required wills of real estate to be attested by three witnesses, while wills of personal property required no such solemnity.

Wills professing to dispose of both real and personal estate, but not duly executed to pass the real, have nevertheless been held good for the personalty. That was ’ adjudged by this court.in Watts v. The Public adm'r of N. Y., (4 Wendell, 168,) on the will of John G. Leake. In Massachusetts, they applied a remedy to cases of this kind as long ago as 1783 ; hut they did it by legislation, not by judicial decision. The statute is cited, and its practical operation illustrated, in the cases of Osgood v. Breed, (12 Mass. R. 525) ; Dean v. Littlejohn, (1 Pick. 239), and Brown v.

Thorndike, (15 id. 388.) It is admitted in these cases that the statute changed the common law rule. In this state also, a remedy has been applied by a statute which requires the same solemnity in the execution of all wills. (2 R. S. 63, § 40.) The question under consideration has been urged upon us as though there was something peculiar in this case. It is said that the testator had a general intent; a connected and, complete scheme for the settlement of his estate, and that when a link is broken the whole must fail.

It is equally true that almost every man who makes a will has a general intent; a scheme either more or less complicated for disposing of his estate. And it is true of other cases as well as this, that the failure of a part, however unimportant it may be, breaks in upon the general plan. But where, as in this instance, the entire scheme is made up of several and distinct parts, I find no legal principle which will authorize us to say that the failing of one part will overturn another.

When a testator makes several persons the objects of his bounty, what he gives to A. must of necessity have some reference to the provision made for B.;. but if the gift to A. is free from objection, courts have no discretion to declare it void because the gift to B. is illegal. This testator has given a life estate to each of his children, and in a certain event, has limited remainders in fee to others. Let it be granted that the life estates are void, I see no reason why the remainders should not take effect.

If the precedent estate was void in its creation, the limitation over may take effect as an executory devise. And besides, under our statute a freehold estate may be created to commence in futuro. § 24. If the estates limited, in default of appointment by devisees, are void, it must be on the ground that when a part of the intent of a testator fails, the whole is gone; that if a gift to A. is void, a gift to B. is also void. To this doctrine I cannot subscribe. [287] It is said that when this will was made, all its provisions were legal. That is true of the original execution in 1828.

But this will was made when it was republished by the testator, in 1833, and then the power to lease was void. It is said also, that had the testator known the power was void, he would have altered this, or made some other will. That is more than we know. But if we may presume the fact, it might upon the same grounds have been presumed in every ease where a testator has inserted an illegal provision in his will. There is nothing in this case to distinguish it from others, where the question has arisen whether a will may not be good in part and bad in part. In the case of Hawley v.

James, (16 Wendell, 61,) nearly the whole plan and scheme of the will was based upon an illegal trust; the different estates and interests all depended on a perpetuity, which the statute had declared void in its creation; and of necessity the whole building fell when the foundation was removed. But the court seized upon and saved everything which could be separated from the illegal trust, and thus affirmed what I regárd as an established principle, that effect must be given to everything in a will which is legal, and which does not stand indissolubly connected with that which is vicious.

In that case the court went so far in asserting this principle, that I was unable to agree with the majority on two or three of the subordinate questions. It was not, however, a difference about the existence, but concerning the application of the rule. There is much that is plausible in the argument that when a part of a will fails, the whole ought to be overturned. But what have we, as ministers of justice, to do with it ? It should, I think, be addressed to those who make, not to those who administer the laws.

The law, as I read it, has not only omitted to provide that courts may declare void those things which are legal, but it has, in express terms, given a different rule, and one directly applicable to this particular case. When the true meaning of the testator in the several parts of his will has been ascertained, the statute' declares that it shall be the duty of courts of justice to carry into effect the intent of the party, so far as it is consistent with the rules of law. (1 R. S. 748, § 2.) The rule is not that we shall carry the will into effect if all is legal, but so far as it is legal.

We have, I think, just as much authority to declare an illegal provision valid, as we have ,to say that a legal one is void. For myself, I utterly disclaim all authority to do either the one thing or the other. [288] Should the legislature review this subject, they would, I think, find no middle ground between the present rule, which saves all that is good, and one declaring that any illegal provision should render the whole void, which would overturn very many wills.

Any attempt to specify the particular circumstances which should defeat the whole disposition, would, from the nature of the case, be likely to prove a vain effort. Should it be referred to the discretion of the court to say when the failure of a part shall avoid the whole, the validity of wills would no longer depend on the law, but on the sentiments and feelings of the judge; and the same will would be valid in one court and void in another. No man could know when a will or a title derived under it, was valid, until the question had been solved by a .protracted litigation, ending in' the court of last resort.

If we now had such a discretionary power as we are asked to exercise, we could decide this case either the one way or the other; but we could lay down no general principle which would either bind this court or serve as a guide to subordinate tribunals in deciding upon other wills. When we declare the law of a particular case, we bind those who come after us. But when we exercise a discretionary power, we bind nobody; for the discretion of one man is not the discretion of another. There is a class of questions which must necessarily be referred to the sound judgment of those by whom they are to be settled.

They relate for the most part to the practice and proceedings of courts, and rarely, if ever, directly involve the right of the parties. To make the title to property, whether claimed under a deed or a will, depend on the discretion of the court, would be an anomaly in the law. [289] The cy pres doctrine has been pressed into the argument, and as disparaging epithets have sometimes- been applied to that doctrine, it may not be amiss to show that it does not lie in our way on the present occasion.

This rule of approximation, as it is called, goes beyond that given by our statute, which requires us to" give effect to all that is legal in a will, and in a modified form upholds things which are in themselves illegal. When the mode in which a testator proposes to execute his general intentin the disposition ofreal estate is contrary to law, courts have sometimes felt themselves authorized to disregard the particular illegal intent, and give effect as far as the rules of law would permit, to the general- intent in another form.

They have thus executed (cy pres) as near as possible the will of the testator, instead of leaving it to fall to the ground, because the mode of execution which he contemplated was illegal. The doctrine is stated, and many of the cases on the subject are referred to, in the note of Mr. Butler to Fearne on Cont. Rem. 203, 3d Amer. from 3th Land. ed. The rule of approximation was recognized and applied in Jackson v. Brown, (13 Wendell, 487.). In the case under consideration, both parties agree that the power to make leases is void, and neither party proposes to give effect to it in any modified form.

We have, then, nothing to do with the cy pres doctrine, and whether it should be repudiated or approved, is a-question with which we need'not trouble ourselves at this time. It seems to be supposed- that the language which I used in Hawley v. James, (16 Wendell, 144,) concerning a will, good in-part and bad in part,-militates against the validity of this will. Although the remark referred to was a general one, and not on the turning point of that case, I see nothing in it to qualify or recall; nor can I perceive how it favors the overthrow of this will.

If I have not erred in the views taken of this case, the respondent only had a life estate in the land, and could not make a good title to the purchaser. It follows that the decree of the court of chancery is erroneous, and should be reversed. By Justice Cowen. This is an appeal from a decree of the court of chancery, by which it is declared that the will of Nicholas William Stuyvesant, deceased, is in

part void, and that his real estate, therefore, descended to his children and heirs at law, in unequal portions. [290] The will was republished, and took effect, by the death of the devisor, after the enactment of the Revised Statutes, and must therefore be governed by their provisions. It is not denied that all the estates created by the will would, standing alone, be valid within those statutes.

The estates are first, for the lives of (he respective sons and daughters in unequal portions; secondly, aremainder in fee to the lineal descendants of those sons and daughters respectively; and lastly, in default of lineal descendants, then to the devisor’s right heirs in fee. But it is objected that all these devises are void, on account of the failure of two several powers which the will sought to create ; one was a power to each tenant for life, to make leases for three lives or 63 years.

The other was a power to each to appoint ly will to, or in trust for, his children, grand-children, nephews and nieces, such estate as he should think fit. I had occasion to consider both these powers in the late case of Salmon v. Stuyvesant, (16 Wendell, 321,) which came here upon the same will, and in which this court reversed the chancellor’s decree, upon the alternative ground that the devisees were at least to be considered good or bad in tota, and that in either view, the respondent could not make a good title.

The parties dealing in these lots, both devisees and purchasers, have, as is very natural to suppose, a decided preference for that side of the alternative which would destroy the will as to the real estate, and give them a fee by descent. They appear to be content with -the dispositions made of the personal property, or at least hopeless of disturbing them; accordingly, since the decision in Salmon v.

Stuyvesant, they have made up a case by releases among the heirs, real or assumed, which secures them the benefit of a title in fee, provided we shall be of opinion, on further consideration, that the nullifying side of the former decree is the correct one. [291] [292] On examining the provisions of this will, after the argument of Salmon v. Stuyvesant, I came to the conclusion, and so- expressed myself, that the power to devise was valid, as not being necessarily-larger than the Revised Statutes allowed. I have since seen no satisfactory reason for changing my opinion.

I do not think we are required by any rule of construction, to declare that a power which, when executed in a proper way within legal limits, would be perfectly valid, is void, because an abortive attempt may be made under it to create an estate so remote as improperly to suspend alienation.

The will empowers the testator’s sons and daughters respectively, by last will and testament, to devise and appoint the land, in which they take a life estate, to or in trust for any one or more of their respective children, grand-children, nephews and nieces, for such estate or estates, and subject to such powers and provisoes as they respectively shall think fit. It is supposed that in virtue of the power to appoint such-estate or estates, &c., as they may think fit, they may not confine themselves to legal estates, but may attempt to create a perpetuity.

That is true; but it is equally clear that they may, and undoubtedly- would confine themselves to the creation of legal estates for life or in fee to children, nephews or nieces; and to such legal estates, I think the power must be restricted, in its

interpretation. It is the same as if it had declared in so many words, that the estates to be created were intended to be legal estates, and it should be read in that way. It never could ouerate in any other way, and it is entirely gratuitous to suppose the teatator intended that the devisees should make an illegal attempt. It is contrary to the common presumption, which is, that every man intends to act according tr the law; and the contrary seems to me an extremely unnatural and forced con struction in this instance. The passage can hardly be read or understood in any other than a perfectly innocent sense.

But if it were capable of being read different w¡ays, the one in a legal, and the other in an illegal sense, clearly it should be read in the former. Mr. Roberts, in his Treatise on Wills, 431, note, says, “ if words admit of a twofold construction, the rule is, to adopt such as tends to make good the instrument, even in case of a deed, and much more of a will.” These are the words of Mr. Justice Lawrence, in Thellusson v.

Woodford, (4 Ves. 312,) where he says “ read this will with reference to the rules of law, and there can be no doubt.” So we may say here, read this appointing power with reference to the rules of law, and it is indeed very strange that a doubt should ever have arisen. Mr. Justice Lawrence refers to Atkinson v. Huchinson, (3 P. Wms. 260,) Where lord chancellor Talbot lays down and applies the same rule. I feel clear that his honor, the chancellor, has reversed the settled rule of construction, in supposing that this appointing power can be bo read .as to make it any thing but legal and valid.

On the other hand, I confess I am inclined to think in this case as I did in Salmon v. Stuyvesant, that the power to lease for 63 years was void for the whole time, till I had been favored with the views of the chief justice.

I certainly hesitated whether, in the spirit of that benign and liberal construction Svhich it is always our duty to exercise for the maintaining of wills, the power might not be considered good for the 21 years allowed by the statute, though void for the excess. 1 should have felt no difficulty on that, had not the statute expressly declared all beneficial powers not conformable with itself to be invalid. It was held in Alexander v. Alexander, (2 Ves. sen. 644,) that the execution of a private authority should be valid as far as it pursued the power, but void for the excess only.

I never could entirely satisfy myself why the same rule should not be applied to the exercise of a legislative power. If it be so applicable, then, although the will in question undertakes to delegate an authority for 63 years, you are to read it in the light of the statute, which restrains- it in effect to 21 years. If you read it in that way, then it comes down to the legal limitation, and on reflection, I feel better satisfied with that construction. [293] Such a view, however, does not vary the principle on which this will is assailed. The leasing power is still abridged or voided for 42 years.

The respondent chooses to assume the round proposition, that it is void for the whole; and, for the sake of the argument, let it still be conceded that he may be correct in that assumption. After reaching that ground, the respondent’s bill proceeds to state that the leasing power was a fundamental point, upon which the details of the will were framed, and that without it, the intention of the testator could not be carried into effect.

In support of this proposition, he shows that some part of the estate devised is in the neighborhood of the city of New-York, the ordinary course of whose rapid growth will require the vacant lots of the estate for building; that to fit these lots for market, large sums must be expended; that during the testator’s life he made various arrangements and at great, expense to secure that object; that he disposed of some lots, and gave and took building covenants; that large assessments of taxes have been made and will be necessary; that the income of the property is and must continue to be comparatively small, unless a greater interest is given to the heirs than can be taken under the will, as that must be construed by the Revised Statutes.

In short, the bill goes into a great many particulars, by which it is sought to show the highly flattering prospects of this part of the city, if an adequate estate be allowed to the children; and the disastrous consequences both to the estate and the city, if thin will is allowed to stand. A map of proposed city lots is produced to illustra-o these particulars.

The stating part of the bill concludes thus: “ The peculi•, • circumstances of the estate of the testator afford conclusive evidence that if the testator had been apprised that the Eevised Statutes reduced the power of leasing for years, he himself would have annulled the will, and made some provision by which his children could have rendered the estate valuable to themselves.

That he would have done this either by a direct, devise in fee, or by suffering the estate to descend to the children as heirs at law.” The answer admits all the facts stated in the bill, with its colorings and conclusions. [294] I have briefly gone through the details of the bill with a view to what appears to me a very obvious remark: which is, that every thing set forth beyond the will itself, in order to impeach its validity, is impertinent.

That had the train of extrinsic facts here stated been denied by the answer, or left to evidence, some of them would have stood entirely incapable of proof in their own nature, whilst all would be treated as surplusage.

The rule of law forbids that the plain and unambiguous language of a will should be contradicted, explained, or in any way affected by parole evidence. ' We are required by all the authorities to read the effective provisions of the will, and govern ourselves by these as they appear upon the face ; and' we have nothing to do with the question, whether the estate created be more or less beneficial to the devisee, or the neighborhood in -which the land is situated.

Testators in former times, often left out words of inheritance in cases where no one could doubt, upon extrinsic circumstances, that they intend to devise a fee. Yet the courts could not supply the defect by looking at the object of bounty, or the inadequate value of a lile estate. (Cole v.

Rawlingson, 1 Salk. 234.) Suppose when the next lot comes into market under this will, the defendant should answer that it is in his opinion, more valuable to the devisee as a garden in the suburbs, than a city building lot; and the cause should like this, be set down for a hearing on bill and answer; let it be added that the devisee was a gardener, and the testator intended to secure him a piece of ground to occupy during his life ; and the. argument would be equally conclusive against, as it is now supposed to be for, the leasing power. [295] I certainly agree with the chancellor, that every will must take effect according to the law as it stands at the death of the testator.

I am only desirous that this principle should be acted upon entirely in disregard to matters out of the will, and out of the law in whose light it must be read and understood. It should be borne in mind that the sole gravamen in the bill is, that by making this will in 1828, when our statutes allowed the leasing power, and by a supposed mistake, suffering it to take effect when the new statutes disallowed such a power, the estate of the devisees was inadvertently diminished in value.

Now in the first place, I must be permitted to deny on direct authority, that such a concourse of events can be noticed, even had these devisees been totally disinherited. The very point was resolved by Mr. Justice Story in Adams v. Wilbur, (2 Sumn. 266.) In 1801, the testator, a resident of Rhode-Island, having no issue, made his will, by which he devised all his estate to his wife. There was then a statute of that state providing that, notwithstanding such a will, on a child being born, it should take by descent. The statute was repealed in June, 1803, and the testator had a son born in August, 1804.

Evidently believing that the old statute still remained in force, he neither destroyed nor altered his will, and died in three or four months after. Counsel there argued, as they do here, that to give the will effect according to the new statute would be to destroy the presumed intent of the testator in favor of his infant son. The answer of the learned judge was this : “ The will was ambulatory during the life of the testator, and no title could accrue to the son until his death. The son is to take, not by the bounty of the testator, but by the operation of law.

Now, at the time, if ever, when his title was to accrue, there was no act in force which conferred any such title upon him.” I have said this case is directly in point. I will add it was a much more plausible case against the will than the present. There the new statute, by giving the subsisting will a different effect worked a total disinherison of the issue. In the ease at bar, it works comparatively a very inconsiderable change against them. Marriage and issue have been held to work an implied revocation of a previous will. (Pow, on Dev. 369.) In short, the case of Adams v.

Wilbur, negatives in the strongest manner every proposition involved in the decree here appealed from; and on the point blank authority of such a distinguished jurist as decided that cause, I should, in an ordinary case, feel myself entirely authorized to repose.

There are circumstances, however, in the case at bar, which demand a brief recurrence to the principles on which the decision is founded, and which, I think, demand their rigorous application. [296] [297] If we receive such a case as any and every devisee and purchaser under this will may choose to surmise by amicable bill and answer upon foreign circumstances, beside the evil of kindling up endless litigation in respect to the different branches of the estate in question, it seems clear to me that we shall be breaking in upon general rules which have been always recognized since our law made any pretensions- to science.

In Lord Cheyney’s ease, (5 Co. 68, 9,) on its being proposed by Sir Thomas Cheyney to prove the testator’s intent by witnesses, Wray and Anderson, Ch.

Js., on conference had with other justices, “ resolved that he should not be received to such averment out of the will; for the will concerning lands, &e., ought to be in writing, and the construction of wills ought to be collected from the words of the will in writing, and not by any averment'out of it; for it would be full of great inconvenience that none should know, by the written words of a will, what construction to make or advice to give, but it should be controlled by collateral averments out of the will.” In Cole v. Rawlinson, (1 Salk. 234) Holt, Ch.

J. said, “ the intent of a testator will not do, unless there be sufficient words in the will to manifest that intent, neither is his intent to be collected from the circumstances of his estate and other matters collateral and foreign to the will, but from the words and tenor of the will itself; and if we once travel into the affairs of the testator and leave the will, we shall not know the mind of the testator by his words, but by his circumstances, so that if you go to a lawyer he shall not know how to expound it.

Upon the will ’tis so, but with the matter found by the special verdict ’tis otherwise; and what if more accidental circumstances be discovered and be made the matter of another verdict ? Men’s rights will be very various upon such construction.” (See O'Brien v. Lord Inchiquin, Ridgw. Cas. Temp. Hardw. 249, S. P.;) In Strode v. Russel, (2 Vern, 621,) it is remarked that no regard is to be had to what was said by the testator, but the question upon a devise “ must be determined only by what is contained in the written will.” In Stanley v.

Leonard, (1 Eden, 94,) the lord keeper said, “ in all these cases there is but one invariable rule; the intent of the testator must be collected from the will itself, and not conjectured.” And much was said to the same effect in the late case of Doe, ex dem. Hick v. Dring, (2 Maule & Selw. 448.) Lord Ellen-borough, Ch.

J. said, “ In the present case, if I were asked my private opinion as to what this testator really meant, I must suppose that he meant that which his duty prescribed to him, &c., but sitting in a court of law, I am not at liberty to collect his meaning from matter dehors, but only from the expressions used on the face of the will.” Le Blanc, J. said, “ If the court were at liberty to look to extrinsic circumstances, to the nature or comparative value of the real and personal property, or to the situation in which the testator stood with regard to his family, in order to see what disposition of his property he probably intended to make, they would undoubtedly be inclined to say that he must have intended- to pass his real estate.

But that would be a very dangerous rule to go by, because it would be to say that the same words should vary in their construction according to the quantity of the property or the situation of the party disposing of it, &c. Therefore, to avoid any such incongruity, the court seeks the construction in the words alone of the will.” (See Page v. Leapingwell, 18 Ves. 496; Ram. on Wills, 41, and the cases there cited.) By these cases, and many others that might be cited, it will be seen that the rules of construction are the same both at law and in equity, and that when we are told of the marketable value of Hr.

Stuyvesant’s vacant lots, of taxes, and improvements, and building covenants, and ignorance of law, we are left precisely where we stood before. Such circumstances are, as I remarked, impertinent, and altogether out of the issue. In the language of the present chief justice, in Coster v.

Lorillard, (14 Wendell, 349,) to notice them “ would be arbitrary, and establish a precedent for courts, not to construe wills according to the intent of the testator, as derived from the language used to express it, but to make a will for him, such an one as we undertake to presume he would have made, if advised that his own was void as against law.” [298] [299] I have also said that some of the facts put in issue are utterly incapable of proof, and such as the law never will inquire into.

Among these is the fact so much relied on in the court below, and here again in argument, that the testator committed a mistake of the law. “ If,” says £is honor, the chancellor, “ the testator could have known that the operation of his will under the provisions of the Revised Statutes relative to powers, was to deprive his children of all beneficial interest in his estate, and to tie it up for the sole benefit of another generation, it is very evident that he would have given the fee to his children, or have devised to them an absolute term of 63 gears.” I shall by-and-by have occasion to notice that this remark can probably be applied to but a portion of the estate affected by this will; but,for the present I must be permitted to ask, with great deference, but certainly with some emphasis, upon -what authority are we to assume that this testator did not know the law ?

Has such a principle of construction been before acted upon ? So far from that, the principle has often been denied. Through all the changes of the statute or common law, in all departments of business and duty, it has been the maxim of courts, that every citizen knew and was bound to know the legal rules by which his contracts, his wills, and his conduct, were to be governed ; and that the law of the land entered into and was to be read with and make a part of them, as if it had been actually recited.

Was the year 1833, when this testator republished his will and died, a season of greater legal darkness than ever before shrouded the human intellect ? The Revised Satutes had been published for years ; they had plainly forbidden a leasing power so large as that in question; they had slightly modified the right to create testamentary powers of devise and executed the trust to the daughters. Are we told that the testator could not read ? that his lawyer, who drew his codicil and examined his will, could not read the statutes ?

Yet in all the numerous changes which they introduced in the law of property, and even of crime; the conduct of the most humble individual has, from the moment of their passage, been relentlessly judged by them. The testator makes a will in 1828, which according to the law of that day had one effect. In 1833, he republishes that will, or suffers it to stand under a law which gives it another effect, each equally valid. By what authority are we to adopt, as a principle of construction, his knowledge in 1828, and his ignorance in 1833 ?

Suppose he had committed a mistake in 1828, was that the day of saving light, and 1833, an hour of darkness which is to destroy a testament, as if its author had been of unsound mind ? No. When first made, the will contained a valid power to make leases. After the Revised Statutes, the testator, by republishing his will, or even suffering it to stand, strikes out the power. It is a change which he had a right to make.

He has done so, in effect, as plainly as if he had run his pen through the clause and thus obliterated the power, or changed it by a codicil; and' the same remark applies to every other change in the will resulting from the operation of the Revised Statutes. [300] I remember that shortly after these statutes took effect, a thief broke into an out-house and stole an

article of small value. In 1828 it would have been but a petty larceny ; in 1830, it was a burglary; and though he had not yet a single year’s opportunity to learn the legal nature and consequence of such

an act, the- court sentenced him to the state prison. The argument was much stronger for his ignorance of the change which the law had undergone against him, than that which is now urged. Yet I ask what judge would have listened to it? In Hunt v. Rousmaniere, (2 Mason, 342; 8 Wheat. 174; 3 Mason, 294; 1 Pet. S. C. R. 1,) the parties committed a plain and admitted mistake of the law in framing a power of attorney by way of security for money; so much so, that, in legal effect, it came altogether short of operating as both intended that it should.

The supreme court of the United States held that the law bound every man to a knowledge of itself; that the presumption was conclusive, and men shall not be received to allege the contrary. So strong indeed was the presumption held in that case, that all the power of a court of chancery was pronounced unable to rectify the transaction or relieve against the consequences. The same principle has always been acted upon both by the court of chancery and supreme court of this state. (Lyon v. Richmond, 2 Johns. Ch. R. 51. Clark v.

Dutcher, 9 Cowen, 694.) In the first case, Chancellor Kent says: “ Courts do not undertake to relieve parties from their acts and deeds fairly done on a full knowledge of the facts, though under a mistake of the law. Every man is charged at his peril with a knowledge of the law. ' There is no other principle which is safe or practicable in the common intercourse of mankind.” Mr.

Justice Sutherland says, in the latter case : “ The principle on which courts refuse to relieve against mistakes in law is, that in judgment of law there is no mistake ; every man being held, for the wisest reason, to be cognizant of. the law.” The Doctor and Student, one of our most approved books, was written and published in 1518, more than 300 years since.

Ch. 46 of Dial. 2, opens with this remark: “ Every man is bound at his peril to take knowledge of what the law of the realm is, as well the law made by the statute as the common law.” (Muchall’s ed. 250.) [301] [302] But if we were permitted to notice what is improperly called a mistake of the law, in respect to the leasing power, I have no doubt that both in legal effect and in actual influence on the affairs of the estate, it has been altogether overrated. For the present, let us look at the legal effect. There is no failure of any estate which the testator attempted to create.

In the many provisions of the will, so far as estates are concerned, reaching we know not how many interests and objects, everything is unquestioned and unquestionable. It is not pretended that anything of importance has failed, except a potential existence depending on the future heat of city speculation to warm it into life. I had occasion in Salmon v. Stuyvesant, which was the pioneer attack against these remaindermen, to remark that this was a collateral power; or in other words, it does not exist in virtue of simple ownership. Counsel take issue by saying it is appendant and beneficial.

Still it is collateral, though not simply so ; and it is so classed by Mr. Powell, in his Treatise on Powers, 8 to 12. Mr..Sugden’s arrangement is slightly different; but the dispute does not depend on verbal classification. The power is not an estate. It is collateral to the line'of limitation fixed by the will. The limitation is of estates, properly so called, for life and in fee. A power can neither stand as a particular estate, on which a remainder can be limited, nor can .it be devised as an estate in remainder.

Its failure as a nullity is exactly the same in effect as if it had been valid but the donees had refused to execute it. No one ever supposed that in either case the estates themselves by the side of which the supposed entity or nullity is introduced could be necessarily either nurtured or ‘ destroyed by it.

No such influence was supposed by the chancellor, nor is it claimed in argument; but although merely void, it is claimed that it should be read in evidence, to show that the testator intended to make a valid power; and farther, that should he fail in this isolated attempt, he intended that all the other provisions of his will should share the same fate. I must still be permitted to deny both the premises and conclusion. This is not the case of a thing being void for one purpose and good for another. Void things are as no things; as a void award is said to be no award.” (22 Vin.

Abr. 13, pl. 17.) Surely the respondent claims a very singular influence, from what he admits has no legal existence. If the power be nothing, then, ex nihilo nihil jit. Assuming that the clause is merely void,- it follows that it cannot be read for any purpose, and especially for the purpose of showing intention. This was expressly held by Lord Hardwicke in Hearle v. Greenbank, (1 Vesey, sen, 298.) The will there was valid as to the personalty, but void as to all the land. In respect to the latter,-he said: “ The will is void.

Here is no will of the land.” (Id. 306, 307.) He puts the point in several views, and would not notice the void provisions, even to raise a case of intention. He said, as to that void part, “ the will was not capable of being read.” (Sheddon v.

Goodrich, 8 Vesey, 497, per Lord Eldon.) So Domat says of wills under the civil law, (B. 3, tit. 1, § 6, art. 3.) The expressions which cannot have any meaning, are rejected as if they had not leen written, and do not hinder the others from having their effect.” Indeed, I am not aware of its ever before having been supposed, that a clause which is merely void, could be invoked to establish the intention of a testator. Mr. Senator Maison said, in Coster v. Lorillard, (14 Wendell, 364:) “The trust being void, it is as though it n

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