Hawley and King, appellants, and James and others, respondents, 16 Wend. 61

The following opinions were delivered by members of this court: By Chief J ustice Nelson. The view which 1 have taken of this case is confined chiefly to an examination of the questions involved in the trust term, and the estates in remainder limited thereon. There are some minor points which it will become necessary to notice, in the disposition and settlement of several independant bequests, upon the conclusions at which I have arrived. The trust term has been properly divided into two branches; 1. Its object, or the purposes for which it was created, and whether it is authorized by law; and 2.

Its duration, and whether it be limited in this respect according to law. There can be no doubt the will must have been pronounced valid previous to the revised statutes. The celebrated case upon the will of Thellusson, and the more recent one upon the will of Henry Bengough, establish principles at common law that would sustain every provision now considered objectionable. The great and fundamental difficulty in the will under consideration consists in the objection, that it transgresses the statute forbidding perpetuities beyond a certain period.

The above cases show these were permitted before the statute for any number of lives in being, and twenty-one years ; a rule comprehensive enough to sustain in this case the trust term, the accumulations, and all the remainders ; but their validity now depends upon the statutes, which must necessarily lead us to an examination of them in connection with the several provisions of the will that have been deemed objectionable.

As to the. object of the trust term, or purposes for which it was created: the testator has declared his object to be to confide his property to the care of trustees for greater caution, till his minor children and grand-children become of age; and as a natural consequence he has created numerous trusts and directed them to be executed for the benefit of his family, or of those dependent upon and entitled to the enjoyment of the estate during the time they are thus deprived of it.

This trust term, which is the estate of the trustees, since the revised statutes, depends upon the validity of these trusts or some of them ; and it will therefore be necessary briefly to refer to. them. My examination, however, shall be confined to those which operate to sustain the devise of the legal estate to the trustees; all the others are mere powers in trust that have no necessary connection with the term. In the case of a devise to executors or trustees, there are but three kinds of express trusts that are accompanied with the legal estate authorized by the revised statutes.

The trust to sell or mortgage lands, in the first and second subdivisions of the 55th section, which, if created by deed, carries the title, does not do so in the case of a will, according to the provisions of the 56th section. These three kinds of trusts in a will are, 1. A trust to lease‘lands for the benefit of legatees, or for the purpose of satisfying any charge thereon which is within the 2d subdivision of the 55th

section ; 2. To receive the rents and profits of land and apply them to the use of any person, which is authorized by the 3d subdivision; 3. To receive the rents and profits of land and to accumulate the same under the 4th subdivision. The trusts provided for under the 1st and 2d subdivisions, with the exception of the one to lease under the 2d, to which I have referred in the case of a devise, should have been classed under the head of powers, as the legal estate descends to the heirs at law or passes under some other clause of the will as the case may be, subject to the execution of the power, § 58.

From this view, it is apparent, there can be no more than three descriptions of trusts in the will that can sustain the legal estate in the trustees, and of course that can in any way affect the trust term. These may be classed under the three authorized trusts, as follows: 1.

The trust to pay legacies, and under which head may be included the trust to pay portions, such as the $50,000 to the children of Augustus, the testator’s son, and the $20,000 to each of the two grand-daughters; to make advances to the sons and grand-sons, during the term, not exceeding one fourth of their anticipated shares, and to pay portions to the daughters and grand-daughters, in the event of marriage; all these are in the nature of legacies, and may be properly classed with them; 2. The trust to educate and support the minor children, in the event of the death of Mrs.

James, and to support the widows, and to educate and support the children of deceased sons and daughters, and to pay annuities; and 3. The trust to accumulate "the rents and profits not wanted for the purpose of the .will. All these are trusts which may be lawfully created under the 55th section, and when they are, vest in the trustees the^legal estate for the purpose of their execution. Whether they have been created in conformity to the section, so as to sustain the estate in the trustees, is another question which 1 will now examine.

For the sake of brevity and clearness, I shall divide these trusts into two classes: 1. Those which are future and contingent, and 2. those which are present and active. It is to me an obvious proposition upon the statutes, that a future trust, whether contingent or not, cannot vest a present estate in the trustees, or sustain a devise of it to them. , Until the trust arises, or becomes active so as to require the collection and application of the rents and profits, the trustees can have no concern with the estate.

By the creation of a future or contingent trust, they are not authorized to lease lands or receive the rents and profits till the beneficiaries are entitled to them. In the case of a contingent trust this may never happen, nor can it happen in respect to a future one, in any case, till the 1 time when it takes effect in possession. It is only express trusts that vest the estate in the trustees, and as defined in the 55th

section in the case of a will, are, to lease lands, and to receive rents and profits for purposes there specified. The legal estate is given to them as convenient if not necessary to enable them to perform the trusts, to lease the lands, collect the rents, &c.; but great abuse would follow, if permitted to vest them now with the legal estate to enable them to perform a future trust that might or might not happen. They would hold the title without any right to the possession. The estate would be in one person, and the possession and profits in another.

This was a defect in the old law which it was intended to remedy in the 55th section, by confining trusts to active, and which must, of necessity, be present trusts. Where no present authority is given to lease, or to collect the rents, but to take effect at a future day, until it takes effect, it cannot be said that any trust exists. It is in expectancy, or a trust by possibility. This view disposes of all the trusts in the will except three, viz. the trusts, 1. To accumulate rents and profits; 2. To pay legacies; and 3. To pay annuities.

And all the other are future, and most of them contingent and may never arise. The trust to pay debts I have not noticed, because it is an unlawful one; no such trust is authorized except to sell lands. The trust to accumulate rents and profits was adjudged void by the chancellor, and was conceded to be so. by most of the counsel on the argument. The 37th

section of the 1st

article authorizes an accumulation for the benefit of minors then in being, and which is to terminate at the expiration of their minority. Here it is for the benefit of adults as well as minors, and is therefore an express violation of this section. The trust to pay legacies is no doubt valid, but it is an unimportant one as respects the trust term, because the will requires them to be paid in a short time, and when paid the trust ceases.

The trust to pay annuities amounting to $3675 is valid, and took effect immediately on the death of the testator, and vests in the trustees the legal estate under the operation of the 60th section, and as it is to continue during the time for which the term is limited, it might sustain it throughout. There is some difficulty in determining whether this trust falls under the 2d or 3d subdivision of the 55th section, though I am inclined to the opinion it should be classed under the latter.

Considering an annuity as legally comprehended in the term legacy, or as being simply a charge upon the land, it would come within the trust authorized by the 2d subdivision. If it may be considered with more propriety a trust to receive rents and profits and apply them to the use of a person, then it falls under the 3d. An annuity may be included within the term legacy for some purposes, unless there is something to show that the testator himself distinguished between them.

This has been repeatedly so decided in respect to the fund or provision for payment, as in the case of the will of the Duke of Bolton, where Lord Thurlow held that legacies being a charge on the real estate, annuities were also charged within the meaning of the term. 7 Ves. 534. In the cass of Hancock v. Horton, 7 Ves. 503, they were considered distinguishable upon the terms of the will. Under the influence of this rule, the trustees might possibly execute the trust within the power to lease for the benefit of legatees and to pay charges, contained in the 2d subdivision.

The annuitants being considered legatees or the annuities a charge upon the lands, as they virtually are by the I5th clause of the will ? but the receipt of the rents and profits to pay them seems more appropriately to come under the trust in the 3d subdivision. It is a receipt of them to be applied to the use of persons during their lives, or for a shorter period, as the case may , ftere ft js for the period of the trust term.

It is of no other importance under which subdivison this trust is classed, ^an in respect to the power of the annuitants to assign their interest, If viewed strictly as coming within the term legacy, which means a gross sum, or as a charge upon land and nothing more, they then might sell and convey their interest ; if viewed as a receipt of rents to be applied to the use of them, and they are prohibited from selling by the 63d section.

It appears to me, however, if it should be determined that it came within the 2d subdivision, upon the principles stated, still the interest ought to be considered unassignable within the section. It provides that no person beneficially interested in a trust for the receipt of the rents and profits of lands, can assign or in any manner dispose of such interest. If the

section stopped here, there could be no doubt even a vested future legacy could ndt be sold, for the prohibition applies to every case of a person interested in the receipt of rents and profits by the trustees. It however goes on: “ but the rights and interest of every person for whose benefit a trust for the payment of a sum in gross is created is assignable.” This qualification saves legacies and charges which are gross sums ; but to include annuities, we must not only consider them as coming within the term legacy, for the purpose of payment, but adjudge them to be a gross "sum.

It seems to me this would be a forced construction of the language of the section, especially when its'object evidently is to prohibit the assignment of an interest in the periodical application of rents and profits to the use of persons. I have always believed the trust that would be most usually created, under the authority of the 3d subdivision, to receive rents and apply them to the use of a person would be by way of annuity—payable monthly, quarterly, semi-annually or annually.

In this way the person creating it fixes the amount which he intends shall be thus periodically paid, to a son, a daughter, or other object of his regard. It is the obvious propriety of permitting him to fix the amount, if he pleases, instead of compelling him to refer it to the arbitrary discretion of his trustee, that has led me to the opinion that such a trust is fairly within this 3d subdivision.

I could not believe that the legislature intended to compel a father to give an estate absolutely to an improvident son, or put it into the hands of a third person to dole it out at his will; but that he might fix the amount to be paid and the times of payment. Without, however, pursuing this inquiry farther, whether the trust may be properly classed under the 2d or 3d subdivision, I think it is valid under,one or the other, and is one of the express trusts that may sustain the legal estate in the trustees throughout the limitation of the term.

The next subject of consideration is the trust term in respect to its duration, that is, whether it is properly limited under the statutes.

The limitation is found in the 17th clause of the will, where the testator directs that the trust term shall continue, and the final division of the estate shall not take place “until the youngest of my children and grand-children living at the date of this my will, and attaining the age of 21 years, shall have attained that age.” At the date of the will, there were six children and seven grandchildren, minors, in all thirteen ; and it is apparent from the language and intent of the testator, the trust was to continue till the whole thirteen, or those surviving the period of the limitation, should reach the age of 21 years.

Youngest of my children and grand-children, standing alone, might well enough refer to the youngest of each class; but the remaining part of the clause is conclusive against this

interpretation ; it must be not only the youngest, but the youngest living and attaining the age of 21 years, and who shall have attained that age. If the youngest of each class should die, short of minority, the event designated has not happened, because there may be one living who will attain the age of 21, and who would be the youngest of the class attaining that age. The thirteen minorities, therefore, must all be extinguished, by death or lapse of time, before the trust terminates according to the intent of the will.

Although the testator obviously contemplated the possible death of some of the minors before the youngest living, who might arrive at majority, had attained that age ; and therefore comprehended in the class all his minor children and grand-children; gtj¡j he has not expressly provided for the termination of the trust upon the event of the death of all of them before that Per>°d.

He seems to have expected that some of them would attain the age of 21, and having provided for the duration of the trust till the youngest living of the class should attain that age, he thereby insured its continuance till the termination of all the minorities. It is manifest, however, from this limitation and other provisions of the will, he intended the trust should terminate with the minorities, and that the division of his estate should then take place. This view of the 17th clause, and which was the one taken by the court below, was not seriously questioned upon the argument.

The trust estate or term, then, may be said to depend upon lives, upon minorities, and upon both combined. The thirteen may all have died before any one attained the age of 21. In this respect it depended upon lives—upon thirteen lives; all might survive the period when the youngest reached that age; then it depended upon minorities; some of the minors might die and others attain their majority ; then its duration might be said to depend upon lives and minorities combined.

In the first case, the trust term would be one whose duration depended simply upon lives ; in the second, it would be a term for 20 years and 10 days, as the youngest of both classes, which was a grand-child, would not reach 21 till the expiration of that period ; and in the third case its duration may be said to depend upon lives and minorities combined.

Now if in either aspect the limitation of the estate might suspend the power of alienation beyond the time allowed by .the law, it will be impossible to sustain it, because the rule is well established that a limitation which, by possibility, may create such a suspension, is void. Executory devises and the limitation of springing and future uses and trusts, are cntailments of property which cannot be barred by fine or otherwise; and therefore, unless the limitation or settlement be such that the future estate must certainly vest at some definite time, a perpetuity may be created.

Courts therefore heretofore, and the legislature now have fixed upon such time ; and if the limitation be not such that it must take effect, if at all, within the prescribed period, it is void. So strict is the law not to permit a perpetuity, that it is not sufficient if in the event at the death of the testator, it turns out that the estate is alienable within the proper time, but it must be made so by the will, and not be the result of chance. The proposition is laid down by Mr.

Cruise, and may be found in all the books on this subject, that it is not material how the facts turns out; for the possibility, at the creation of such executory limitation, that the event on which its existence depends may exceed in point of time, the limits allowed, vitiates it ab initio. 4 Cruise, 449. 4 Kent’s Comm. 283. Ram. on Wills, 6. At the common law a perpetuity could be created only by means of a contingent future estate.

Before the occurrence of the contingency and the actual vesting of the estate in some one, there was no person in being who could unite with the owner of the present or prior estate in the conveyance of the fee. Where the remainder or future estate is vested, or where lands are given to A. for life, remainder to B., a person then in being, there is no suspense of the power of alienation ; for the owners of the two estates uniting may convey the whole, each one being able to convey his own absolute interest.

The revised statutes have made present vested estates inalienable, and therefore perpetuities may now be created in cases unknown to the common law ; still many of the common law rules concerning perpetuities created by future estates must be applicable to the creation or settlement of present estates as they are now liable to like abuses. These must now be circumscribed as carefully within the proper limits as future estates formerly were.

Like an executory devise or future use, their tendency to a perpetuity cannot be- barred by fine or recovery, or by any other means ; and if not limited within the period allowed by law, the limitation must of necessity be pronounced void, or perpetuities may exist in spite of the law. In this case the trust term is a present vested estate, and is subject to the statutory inalienability during the whole period of its limitation. The trustees cannot convey by reason of the 65th section; the annuitants, for whose benefit alone, upon my view, the trust estate exists, cannot by reason of the 63d section.

There exists, therefore, a complete suspension of ownership puring the term. Even if we should concede the trust to pay annuities came within the 2d subdivision, so as to be unaffected by the 63d section, and therefore the interest assignable, still, in my judgment, the term would be inalienable. The trustees being unable to alien under the prohibition of the 65th section, the legal estate must remain in them during the trust.

If the annuitants should sell to third persons, the trustees would hold for their benefit; and if they should sell to the trustees, in equity they would then hold for the benefit of themselves. The trust would not cease, because the purposes of it would not be at an end. Perhaps the annuitants might release it, give it up, and thereby extinguish the trust, and thus put an end to the term; but the court, I apprehend, cannot act upon this possibility.

This would not be a power to alien of assign, but to destroy an estate; not to sell for value, but to make a gift; and if a sufficient reason for taking the trust out of the prohibition against perpetuities, the statute would be virtually repealed, for then a trust might bo limited for any period of time, however remote—one hundred years or more, if the annuitants possessed the power to put an end to it by voluntary gift: a very different power, in respect to the transmission of property, from the one to sell for value.

It is obvious if the power to destroy the trust estate, by a sacrifice of it, satisfies the statute, then the 63d

section seems to me to have been always nugatory ; it prohibits assignment, and if to destroy is equivalent to assignment, then in no imaginable case, except perhaps of minority, could there be a trust where the 63d

section would operate to suspend ownership. Upon this

interpretation, every cestui que trust could give up or abandon his interest to the trustees; it may be done in all cases of trusts coming directly within this section, and if this is assignment then the interest is alienable. This cannot be the power of alienation contemplated in the 14th and 15th sections of the statute. They mean a power to sell and convey in the ordinary way for value.

The trust term then I consider inalienable, both as it respects the estate of the trustees and the interest of the annuitants, and the question then fairly arises, and must be decided, whether its limitation, is within the prescribed period of the statute prohibiling perpetuities. The 15th § of the 1st article, 1 R.

S. 723, gives the rule, which is as follows: “ The absolute power of alienation shall not be suspended by any limitation or condition whatever for a longer period than during the continuance of not more than two lives in being at the creation of the estate, except in the single case mentioned in the next section." The next

section allows a contingent remainder in fee to be created on a prior remainder in fee, to take effect in case the persons to whom the first one is limited should die under age, or upon any other contingency upon which the estate may determine before they attain full age. Taking the two sections together, and they are so to be construed, they permit a limitation for two lives in being, and twenty-one years in addition in case of actual .minority— for example, an estate to A. for life, remainder to his children in fee; but in case such children shall die under the age of twenty-one years, then to B. in fee.

Here the ownership may be suspended for the life of A., and the actual infancy of his children, but in no event can exceed that length of time. If one of the children reach 21 years, B.’s remainder is void. The case upon the will of Henry Bengough was decided in 1827; it involved this question, the only important one in it, viz. whether as the law then stood in England, there could be a suspension of the power of alienation for any number of lives in being, (there were 28 in that- ease,) and 21 years as an absolute term without regard to infancy.

The court held that though the rule of law was framed in analogy to the case of a strict settlement, where the 21 years was allowed in respect to the infancy of a tenant in tail, it had been fully settled that a limitation by way of executory devise or springing use, might be made to depend upon an absolute term of 21 years after lives in being. The 16th § was intended to change this rule, and confine the 21 years to the case of actual infancy, as the 15th had changed the other branch of it, arid cut down the lives from an unlimited number in being to two only.

The maximum duration, then, of the suspension of the power of alienation, according to the statute, is for the period of two lives in being, and twenty-one years in addition, in case of infancy.^ This is the longest possible time, under any view of the section', that is permitted ; arid if the opinion before expressed, that this trust term is so limited as to depend upon thirteen lives in one aspect of it, is not a mistaken one, and I understood to be conceded upon the argument that it is so limited, it is directly repugnant to the letter of the statute.

It seems to me there can be but one answer to this conclusion, and that is a denial that the term depends upon lives at all; for if it depends upon one, it may depend upon all, as no distinction can be made between them. The court below sustained the terrh and expressed the opinion, 1. That the 15th

section did not absolutely require the trust estáte authorized by the 55th § to be limited so as to depend upon two specified lives—a position I shall hereafter examine ; and 2. That the limitation in this case was an estate for years, for 20 years and 10 days, determinable not on lives, but upon minorities.

I am not disposed to deny it may be deemed an estate for years, and assuming the youngest grand-child to live and attain 21, it would be a term for 20 years and 10 days; and if it depended exclusively upon minorities, would be a term for that number of years, determinable sooner if the minorities should sooner cease; but when we speak of an estate depending upon minorities as contradistinguished front lives, we must and should mean minorities ceasing by lapse of time—ceasing by reaching majorityX' When we contemplate their termination by death, and the estate as depending or ending upon that event, it depends upon and is determinable by lives.

It was conceded on the argument by most if not all the counsel, that upon the most reasonable construction of this clause of the will, the term depended on the lives of the 13 aé well as on their minorities.

This follows, even from the position that the term was to continue until all the minorities terminated# for while human life is uncertain, it- is impossible to limit an estate upon a number of minorities without including a limitation upon as many lives; and if it be illegal to make such a limitation upon lives, the combination of minorities cannot help it, any more than any other contingency that would not necessarily happen, short of the termination of the lives.

If it could be certain that the minorities would cease by lapse of time before the termination of the lives, then I admit it would' be an estate depending upon minorities and not upon lives; but as it may terminate upon the death of all of the thirteen before any one attains majority, it is clear that in that view it is an estate depending upon 13 lives, and may terminate with them. There is another view of this part of the case which is perhaps more satisfactory and conclusive.

The absolute term of 20 years and 10 days, determinable by the ceasing of the minorities, is in no respect different from such a limitation determinable upon lives as to its possible duration. In either view it may continue the whole of the limited period—the 20 years and 10 days.

The minorities may hot cease till the youngest grand-child arrives at- the age of twenty-one, in the one case, and the lives may not expire till that period in the other ; it may ; therefore, be an absolute term for twenty years and ten days in either case, and if the principle is established, thfere may be ah absolute term for 21 years, as the youngest child may not be a day old at the creation of the estate. To test such a limitation by the statute, we will take an example.

Suppose an estate to A, for 21 years, and during the lives of B. and C. then in being, and remainder over; now the utmost limit of the statute is the two lives: “ the absolute power, of alienation shall not be suspended by any limitation or condition whatever for a longer period than during the continuance of not more than two lives in being at the creation of the estate.” We have now a limitation of twenty-one years, and during the lives of the two persons in being. Suppose these lives should drop at the end of ten years, is not the authority of the statute to suspend the ownership exhausted ?

Two specified lives in being, and upon whom in one aspect the estate depended have expired, the precise measure given; and yet eleven years remain unexpired of the estate, and upon the construction contended for, may still continue, and the ownership be suspended for the remaining eleven years. Again, an estate to A. for the lives of B. and C., or twenty-one years, which of these two limitations shall control according to the statute, the two lives or the twenty-one years?

According to the construction contended for, if the two lives should fall in at the expiration of ten years, the estate would continue for eleven more, which to my conception is in the teeth of the statute. Again, let us take the case as presented upon this will. An estate to J. K. and H., trustees to hold in trust for twenty years and ten days, determinable upon the ceasing of the minorities of the thirteen infant children and grand-children, then over to the remainder men. At the end of ten years, two of the thirteen lives fall in.

Have not two lives in being at the creation of the estate, upon which with eleven others the limitation of it depended, expired ? two specified lives and yet half the trust term remains and may continue ten years longer.

It seems to me, after the most deliberate consideration of this part of the case, and I have examined it with a distrust of the soundness of my views, differing, as I am obliged to do from such high authority, it seems impossible to avoid or explain away the repugnance between the limitation of the term and the rule of the statute; testing it in any possible way of which it will admit, still it may exceed the perpetuity there allowed, the duration of two lives being at its creation, and then the principle before adverted to, and stated upon the authorities, applies that if a limitation be too remote in its commencement, it is void, and cannot be helped by a subsequent event, or by any modification or restriction in the execution of it.

In the language of Chancellor Kent, the possibility', at its creation, that the event, upon which- it depends, may exceed in point of time the authorized period, is fatal to it. 4 Kent’s Comm. 283. 4 Cruise. 449. 2 Burr. 873. We shall now recur to the other question growing out of the trust term, and which should now be settled—though in my view not essential to the decision of this case, it is vastly the most important question in it, as it respects the community. Until it is settled by this court, the disposition of estates and family settlements must be made under serious embarrassments.

I allude to the question whether the limitation of estates, with a view to suspend the power of alienation, must be upon one or two specified lives in being within the true construction of the 15th or whether this measure may be departed from, and the courts permitted to regulate their judgment in each particular case upon the reason or equity of the statute; in short, whether we shall have a fixed and definite measure of duration, or as many as the courts, in the exercise of their discretion, think fit to establish. The grounds taken in respect to this case are, 1. That the 15th

section does not require that the trust term authorized by the 55th § should be limited upon two specified lives-—this is the position of the court below; and 2. That an estate may be limited to depend upon a “ moderate term of years” at common law, within the average duration of a life or lives in being, and that this rule has not been abolished by the statute.

The two positions are so connected that they may properly be considered under one view; for if the terms of the statute or measure of duration there given, may be departed from, as contended for, then it would seem necessarily to follow, that a moderate term of years within the reason and spirit of the statute must be allowed: this would be approaching the statutory limit as near as practicable, without adopting its very terms. The first

article of the revised statutes concerning “ the creation and division of estates,” does not profess to abolish all the rules relating to them which previously existed at common law: in this respect, it is distinguishable from the articles on “ uses and trusts” and “ of powers.” But where a positive rule of real property is enacted, therein modifying or contradicting a former one, the latter is plainly abrogated, and the rule of the statute the only one in force. Both cannot exist.

As it regards future estates, and those in reversion at common law, they are entirely abolished in the article, and pone such are allowed to be created except as there defined. By the 42d §, it is provided that all expectant estates, except such as are enumerated and defined in this article, are abolished. The 8th and 9th § define, estates in expectancy to include all future estates and estates in reversion. The courts must hereafter look exclusively to the rules prescribed in the statute, when called upon to expound the law respecting these estates.

Present estates, then as they existed before the revised statutes» are the only estates that were not abolished. They were extensively altered and modified, as is apparent upon a reference to this first article; but as it respects them, it is conceded they may be said still to exist at common law, spfiject to these modifications.

Now, as to future estates, they being the creatures of the statute, legally existing only as there enumerated and defined, it would seem to be a difficult .undertaking to maintain that they may be limited so as to suspend the power of alienation in any other mode than that .expressly pointed out by the statute.

As to them it cannot well be argued that an estate may be limited for a “ moderate term of years,” as at common law, within the average duration of a life Or lives in being, which rule had not been abolished, because the statute rule, if one exists, and that only must be regarded ; that enters into and helps to definp these estates ; it is one of the most important rules to be observed in the creation of them, and if disregarded, or the estate limited in violation of it, I do not comprehend how its validity can be sustained, Though the difficulty may not be so great in justifying a departure from the statute in respect to present as in the case of future estates as they still exist at common law, it is somewhat enhanced by the above view, because it is reasonably certain but one rule w,as intended to be prescribed for both.

No reason can be given for any distinction between them; and besides it has already been decided in the case of Lorillard’s will, 14 Wendell, 265, that the 15th § applied equally to both; and hence so far as the argument upon this point is concerned, we may consider present as well as future estates mere creatures of the statute, and the only rule prohibiting perpetuities, the one there prescribed.. It. si worthy of remark that this 15th section, as it originally passed, was exclusively applicable to present estates, and was more definite in its language than it now is.

It was as follows: “ The absolute power of alienation shall not be suspended by any limitation or condition whatever for a longer period than during the continuance and until the termination of a life or lives in being at the creation of the estate.” Here the legislature did not leave it to construction, how long the ownership could be suspended, having declared it must not extend beyond the termination of the lives.

There must be no limitation or condition whatever “ moderate term of years,” average duration of lives, minorities, or any other contingency that may by possibility suspend the ownership beyond the termination of the lives in being. Language could hardly be selected more comprehensive and definite if the legislature had intended to exclude all other measures of duration, and to leave no discretion in the matter to the courts. If the suspension of ownership must end at the termination of the lives, how can the injunction of the statute be obeyed unless the limitation of the inalienable estate depends upon them.

Put it upon any other measure, and it may exceed any lives that might have been selected. Though the terms of the present

section are not quite so precise, there is a word substituted for those omitted, that clearly shows no alteration could have been designed ; indeed, we know the only alteration intended was the reduction of the lives from an unlimited number to two only.

The words now are, “ for a longer period than during the continuance of not more than two lives in being, &c.” One of the counsel for the trustees, in commenting upon this branch of the case, contended the word not was unmeaning, and only proved that the legislature had used bad, grammar; but whether the construction should be the same with or without it, it is most apparent that it gives point and distinctness to the meaning of the legislature; and to me it adds some force to the argument, that they intended in express and positive terms to preclude the limitation of an estate that might by possibility extend the suspension of the power of alienation ¿eyonc¡ two specified lives in being.

During the continuanee of not more than two lives, and until the termination of two lives impart the same idea. We may further remark, that the different sections concerning the creation and limitation of estates, universally refer to the statute rule against perpetuities and no other. Thus, the 17th

section provides that where a remainder shall be limited on more than two successive estates for life, all, except the two first, shall be void. So in the 19th §, when a remainder shall be created upon any such life estate, that is for the life of a person other than the grantee, and more than two persons shall be named as the persons during whose lives the estate shall continue, it shall take effect upon the death of the two first.

The 20th §, a contingent remainder shall not be created on a term of years, unless the nature of the contingency on which it is limited be such that it must vest in interest during the continuance of not more than two lives in being. The 26th §, a fee may be limited on a fee upon a contingency, which, if it should occur, must happen within the period prescribed in this article.

So the trusts, to receive rents and profits, and apply them to the use of a person, (the very case under consideration,) are brought within the prohibition against perpetuities by an express reference to the statutory rule prescribed in the first article. No other rule is referred to, and if there should be one at common law not abolished by the 15th it could not help out this trust term, because it is emphatically a creature of the statute, being under the control of the trust which exists only by force of the statute.

Thus it is seen that the legislature, in the modification and limitation of estates', have acted throughout with a single view to the rule established by themselves prohibiting perpetuities. In the consideration of this question upon the statute, the observation must occur to every one, that if the legislature had intended to permit the application of any other rule or measure of time in the limitation of estates, they would have prescribed it.

The mind of that body, having been brought to act directly upon the subject, and impressed with the importance of changing the law as it then existed, and having acted by fixing a measure or time of suspension, it is to me difficult to resist the inference that they intended to leave nothing unsettled, or open to doubt and discussion. There is nothing in the subject itself, involving any intrinsic difficulties, or that could prevent a complete settlement by positive law, or that could recommend its reference to the determination of courts.

On the contrary, the history of the law of perpetuities much of which was before them in the notes of the revisers, was calculated to admonish them of the importance of definite and permanent rules. It had been a subject of discussion, and of various and contradictory judicial legislation, for more than two centuries ; even as late as 1827 the point was most zealously contested and claimed to be unsettled in the court whence we have derived the rule, by eminent counsel, whether 21 years after lives in being were admissible to suspend alienation except in case of infancy.

Chancellor Kent, in the 4th volume of his commentaries, p. 262, presents a concise but comprehensive history of executory devises, and of the leading cases from the earliest times to the present day, and he seems to exult at the close of it as if weary with their diversity and contradiction in the following observation : “ and thus,” he says, “ notwithstanding the constant dread of perpetuities, and the jealousy of executory devises, as being an irregular and limited species of entail, a sense of the convenience of such limitations in family settlements, has enabled them after a struggle of nearly two centuries, to come triumphantly out of the contest.” If the learned commentator had been aware of the construction" of the new statute upon the point contended for, and could have anticipated a confirmation of it by this court, the exultation which he very naturally indulged at the permanent settlement of the law, at the end of two centuries, must have given place to the opposite sentiment, despair; for scarcely had the old rule became thus settled beyond doubt or litigation, when it was abrogated by the statute; and if courts may depart from the precise measure of lime substituted, and fix other standards in the exercise of their discretion, a new subject of contention has just arisen in respect to the rule which it may not take centuries to settle, but which I will venture to predict this generation must leave as an inheritance to those who will succeed them.

If limitations are to be sustained because the court may pronounce them within the equity of the statute, or within the average duration of two ordinary lives in being, it is obvious cases will be constantly occurring like the one in question, and pressed upon the courts as coming within these principles! The settlement of fixed and permanent general rules must be impracticable, the entire subject not being under the absolute control of the courts as formerly.

The spirit of the statute at least must be regarded, and a system of law must spring up under it by successive adjudications founded upon the notion of equities, and each case necessarily turning upon its own peculiar circumstances. We shall have neither the common law nor statute rule, but rules derived by construction from the spirit of the statute. If the limitation in this case be sustained, we determine that twenty-one years is not too long a suspension xvithin the statute, because that is the principle involved in the decision.

The next case may press upon us twenty-five, thirty, thirty-five, or forty years, or any other number, supposed to come within the equity of the statute or the average duration of two lives; and suppose we should finally determine, by reference to the tables of mortality, that forty years was within the average duration of two good lives, and that no limitation should exceed it; must not the court, to be consistent, sustain a limitation depending upon ten lives, if they were taken at such advanced ages, that by the tables of mortality the whole of them would not exceed the duration of two ordinary lives?

If the one measure is within the equity of the statute, why is not the other ? The tables would prove that the average period of the duration of all of them would not exceed forty years, perhaps not the twenty-one we are now called upon to establish. But without pursuing the enquiry any farther, after the best and fullest consideration I have been able to bestow upon this point of the case, I cannot doubt but that if any other modification of the common law rule than the one contained in the 15th § had been believed necessary or useful in the settlement of estates, it would have been incorporated in it.

The legislature could themselves have fixed the “moderate term of years,” or the period of time deemed equivalent to the two lives in being, or any other absolute period, much more satisfactorily than courts of justice. They possessed all the means of information within the power of the court to settle understandingly the proper limit, and the measure by which it might be attained, and then certainty and stability would thus have been given to the law.

From the foregoing view of the questions involved in the trust term, I have arrived at the following results, which it may be proper now to bring within more condensed limits: 1. That the trust to pay annuities is a valid trust within the 3d subdivision of the 55th section, and may sustain in the trustees the devise of the legal estate during the term under the 60th section. II. That all the other trusts are either invalid or are so limited that they cannot sustain it for that period of time: they are future or contingent, or trusts that are immediately executed and cease. III.

That the estate thus vested in the trustees is inalienable during the existence of the trust term : 1. By the operation of the 63d and 65th sections, it being a trust within the 3d subdivision of the 55th

section ; or 2. Assuming the trust to be within the second subdivision, the term is equally inalienable, as the trustees cannot convey the legal estate in violation of the 65th section, and therefore, though the annuitants may assign their interest, the whole or absolute interest is inalienable; and IV. That the trust term is void, 1. Because it is an estate limited to depend upon thirteen lives, as well as upon minorities, and may postpone the power of alienation for a longer period than is allowed by law, 15th section; 2.

That if it should be considered properly a term for 20 years and 10 days, determinable upon thirteen minorities, it is still void, because power of alienation may be suspended for more than two lives of the thirteen individuals upon which it depends; and 3. Because the trust term is not limited to depend upon one or two specified lives in being, within the true construction of the 15th section—the only measure for the suspension of the power of alienation, since the adoption of the revised statutes, being a life or lives. What then becomes of the remainders ?

They cannot vest in possession under the will, because that expressly limits them upon the ceasing of the thirteen minorities. By the 17th clause the testator declares, “ I have also determined that this trust shall continue, and that the final division of my estate shall not take place, until the youngest of my children and grand-children living at the date of this my will, and attaining the age of 21 years, shall attain that age.” The 37th clause also expressly limits the distribution to this period i f time, and until then the trustees have no authority under the power conferred to make the division.

This was the view of the chancellor, upon the supposition that the trust term should be considered invalid. He directed the surplus rents and profits, the accumulation being void, to be paid to the persons presumptively entitled to the next eventual estate under the 46th sectil n of the statute, 1 R. S. 726. But this was directed upon the ground that the trust estate was legal and valid and continued under the management of the trustees.

By that section, when in consequence of a valid limitation of an estate, there shall be a suspense of the power of alienation, and during the continuance of it the rents and profits are undisposed of, they shall belong to the persons entitled to the next estate. This applies only to the case where there is a valid suspense of the ownership and no disposition is made of rents for the intermediate time. Were it not for this section, which changed the common law rule, it is conceded those surplus rents, on account of the void accumulation, must have gone to the heirs during the term.

When there is no valid suspense of the power of alienation by the trust estate, it is obvious the 46th

section does not apply. The limitation being illegal and the trust term void, the estate does not remain in the lands of the trustees, but must descend to the heirs at law who are immediately vested in possession and entitled to the rents and profits. We shall next inquire whether the remainders are valid, so as to divest the heirs of the estate on the execution of the power by the trustees in pursuance of the 37th and 44th clauses ot the will. The power to make distribution is a special power or trust, as defined by the 78th and 95th sections of the

article on powers. A special power exists, 1. Where the person, or class of persons to whom the disposition of lands under the power is to be made are designated, and 2. Where the power authorizes the alienation by means of a conveyance, will or charge of a particular estate or interest less than a fee ; and a special power in trust is when the disposition which it authorizes is limited to be made to any person or class of persons other than the grantees of such power.

Here the class of persons to whom the conveyance is to be made by the trustees is designated, and to some of them the estate is' to be less than a fee, and it is a disposition limited to be made to persons other than the grantees of the power. By the 107th section, every power is made a lien or charge upon the land which it embraces, as against creditors and bona fide purchasers, from the time the instrument containing the power is recorded, and against all other persons from the time it takes effect, § 128.

The period during which the absolute power of alienation may be suspended by means of a power, shall be computed from the time of its creation. This

section recognizes the principle that the suspension of ownership cannot be postponed for a longer time, by means of a power, than is authorized bylaw; and even without it, the 15th

section is sufficiently comprehensive to have embraced the case, because the terms there used, “ by any limitation or condition whatever,” would reach any attempt to create a perpetuity through a limitation under a power.

We have seen that the power is a lien upon the land, from its creation till the execution of it at the termination of the minorities, or in other words till the termination of the trust term, which, according to the views before stated, must be deemed void, as suspending the power of alienation longer than is allowed by law; and it is an obvious conclusion, that if during all this time these life remainders are inalienable, the suspension of ownership is as objectionable in this respect as the trust term, and must be declared void.

It is a suspension depending upon the same events, and must necessarily continue for sanie period of time. Are these remainders alienable before the execution of the power of distribution by the trustees ? The statute declares such power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed. Could the absolute interest in any one of these life estates be conveyed during the term ? Suppose Augustus should sell and convey the interest in his share to A., what estate would pass ?

Not the absolute interest, because upon the distribution, by the trustees under the will, this whole share must be conveyed to Augustus, and to him alone, if living; if dead, to his heirs. It seems clear then to me, that the purchaser could not acquire the absolute estate ih remainder belonging to either of the seven children and two grand-children, in the eight and a half twelfths of the estate, within the meaning of the 14th section. But it may be said that the first remainders are vested, and may take effect immediately in possession upon the avoidance of the precedent or trust estate.

We have already seen that they must be valid, if at all, at their creation, in other words, at the publication of the will; for if not, they cannot become valid by the happening of subsequent events. This is the settled rule of the common law ; it is also now the rule of the statute in respect to these remainders. They are future estates, and by the 14th section, 1 R. S. 723, every future estate shall be void in its creation which shall suspend the power of alienation for a longer period than prescribed in this article.

We have also seen that future estates are the creatures of the statute, and must stand or fall by the rules there prescribed. It is important to this view, in the first place, to ascertain with certainty what the remainders after the trust term are, their nature or character and precise limitation, in order to test their validity by the statute. There are three descriptions of them, all going to different classes of persons, upon the happening of different events; 1.

The remainders for life, with the power to devise; these are the first estates in remainder, and are limited to the seven children and two grand-children; 2. The remainders to the descendants or heirs of these, should any of them die before the expiration of the trust term! these may be called the substituted remainders ; and 3.

The estates in remainder to those to whom the seven children and two grand-children, or person^ taking the life estates, may elect to devise, in case they survive the trust term or execution of the power by the trustees; these may be called the ultimate remainders, and depend upon the 44th clause of the will. Now I may concede the life estates to the seven children and two grand-children are vested within the statute or common law definition of such estates. I speak without regard to the condition of good moral character, upon which the court below pronounced them contingent.

By the statute, § 13, a remainder is vested when there is a person in being who would have an immediate right to the possession of lands, upon the ceasing of the intermediate or precedent estate. These seven children and two grandchildren are in being, and on the expiration of the trust term, which is the precedent estate, have an immediate right to the possession.

A vested or executed remainder, at common law, is one where a present interest passes to the party to be enjoyed in future, and by which the estate is invariably fixed to remain in a designated person after the particular estate is spent; as an estate to A. for 20 years, remainder to B. in fee ; here B. has a vested remainder, which nothing can defeat or set aside. True, he may die before the precedent estate terminates; but that only makes the vesting in possession, not in interest, uncertain or contingent.

The present capacity of taking effect in possession, if it were to become vacant before the remainder determined, is said universally to distinguish a vested from a contingent remainder. 2 Black. Comm. 169. 4 Cruise, 260. Fearne on Conting. Rem. 216. 2 Cruise, 270. Here, it is apparent, nothing can preveht the life estates from vesting in possession, but the death of the remainder-men before the termination of the trust or precedent estate. The other two remainders are clearly contingent, as will be seen on a brief examination.

They are contingent, says the statute, § 13, whilst the person to whom, or the event upon which they are limited t0 take effect remains uncertain. According .to Mr. Fearne, there are four kinds of contingent remainders, of which I not*ce ontytwo’ anc* l"ourth classes. The third is where some uncertain event, unconnected with and collateral to the determination of the preceding estate, is by the nature of the limitation to precede the remainder; as if a lease be made to A. for life, remainder to B. for life, and if B. die before A., remainder to C.

Here the event of B.’s dying before A. does not affect the precedent estate, but the event must precede and give effect to C.’s remainder. The event is of course uncertain ; B. may or may not die before A. ; and the remainder depending upon it, must therefore be contingent. In the language of the statute, the event upon which they (the remainders) are limited to take effect remains uncertain. Now the substituted remainders depend upon the event of the death of the seven children and two grand-children, or some of them, during the existence of the trust term or precedent estate.

This must precede and give effect to the remainders to their descendants, under the 37th clause of the will, like as the death of B. Before A. gave effect to C.’s remainders in. the example stated. The death of the seven children and two- grand-children is a certain event; but death at or within a particular time is uncertain. The death therefore of all or any of them, before the ceasing of the trust term, is uncertain ; it may or it may not happen, and the remainder depending on this event must therefore be contingent.

As to the remainders under the execution of the power to devise, given to the persons to whom the life estates are to be conveyed by the trustees, these are the ultimate remainders. By the statute, the remainder is contingent while the person to whom it is limited to take effect is uncertain, as well as when the event is uncertain. The fourth class of Mr. Fearne is where a remainder is limited to a person not ascertained, or not in being, at the time when such limitation is made ; as an estate to A. for life, remainder to the right heirs of B.

Now there can be no heirs of B. till after his death, and that may not happen till after the determination of the precedent estate. There is then no person ascertained or in being, in whom the estate can vest, as the heirs cannot be known till the death ofB., which may or may not happen before the death of A., upon whose life the precedent. estate depends; the remainder is therefore contingent.

In the consideration of these remainders I do not intend to overlook a rule of law that appears to be well settled, namely, “ that where a power is given to appoint a remainder among a particular number of persons, or class of persons, who are known and ascertained, with a limitation over to the whole number as tenants in common or otherwise, in default of the, appointment, the remainder is vested subject to be divested by the execution of the power.” Sugden on Powers, 151, and cases there cited. Fearne on Conting. Rem. 227, 233. 4 T. R. 39. 5 Paige 186. According to this rule the uncertainty, 1.

Whether the power would be executed or not by the life remainder-men, assuming they survived the trust term; or 2.

The uncertainty of the persons in being who would take upon the execution of the power, as the whole estate may be devised to one of the descendants, according to the 44th clause of the will, would ■ not make the remainder contingent as to those in being at the death of the testator or persons then ascertained: the estate would vest in them subject to be divested on the execution of the power: but as to all the descendants, born after the death of the testator or persons not ascertained at his death, the remainders are contingent and continue so till birth or till ascertained.

They are contingent because the persons are not in being, or ascertained, to whom the remainders are limited. All these ultimate remainders then are contingent, except in respect to the three grand-children of Augustus who were living at the death of the testator. They are contingent as respects the descendants or heirs of the other six children and two grand-children and the children of Augustus subsequently born.

Being contingent, it is obvious they might continue so throughout the duration of the trust term, because the descendants may never be born, or persons may never be ascertained, the event upon which the vesting of the remainders depends; or they may not be born or be ascertained till after the expiration of the trust term or precedent estate.

These are obvious propositions ; and then if right, in the conclusion that the trust term is void on the ground of its being so limited as to suspend the power of alienation longer than two lives in being these contingent remainders which may produce precisely the same effect, for while they are contingent, we have before seen they suspend the ownership, are equally objectionable and void. They are void from their creation, according to the 14th

section of the statute. “ Every future estate shall be void in its creation which shall suspend the absolute power of alienation for a longer period than is prescribed in this article.” It was said that we should vest these remainders in the children of Augustus living at the death of the testator; but a satisfactory answer is, that it would in effect be an exclusion of all children subsequently born, because as to them the remainders are void. This would be unjust, and besides a palpable violation of the intent of the testator.

But it is said we have still the life estates, vested and conceding all the others to be contingent and x'oid, why not execute these immediately in possession ? I have before shown that the power of the trustees to allot and convey these estates, at the termination of the trust term, rendered the absolute ownership inalienable within the meaning of the 15th

section till the execution of the power, and therefore they were as objectionable in their limitation as the trust term itself. But there are to my mind other objections equally conclusive: The trust term is void and gone; the substituted and ultimate remainders are also void and gone; these life estates are the only, ones left that can be sustained under any view. If we should vest these estates on the death of one of these devisees, his power to devise being void, the share would descend not to the heirs at law of the devisee, not to his children, but to those of the testator.

As there are eleven heirs, the children of one of the devisees of the life estates would inherit one-eleventh of the share of their parent, the other ten-elevenths passing to the other heirs of the testator. For example, suppose the life estates were now vested in possession and Augustus should die, his children would inherit one-eleventh of his share, and his brothers and sisters and nephews and nieces, as the case might be, would take the residue.

If this share was $100,000, his children would inherit about $9000 of it: thus, fora time at least, these children instead of representing their father and inheriting his share according to the will, would receive little more than sufficient to furnish them with the necessaries of life, while the surviving children and grand-children, holding their shares under the will, would receive in addition thereto a large and disproportionate interest.

The last survivor would be in possession of about twice the interest intended by the testator, and more than that proportion over any of the descendants of his brothers and sisters. I can never consent to modify and maintain last wills and testaments, where the intent of the testator is thus palpably defeated, and where great injustice must be the consequence to a portion of his descendants.

True, the testator intended the seven children and two grand-children should enjoy the shares to be allotted to them for life, but not in connection with the consequences that must follow the execution of such an intent by reason of the illegal remainders, which have been declared void. So much of the will is broken up as illegal, and the parts are so connected with these life estates, if deemed valid, it is impossible to separate them without disregarding the direction of the testator.

If then right in the conclusion that the limitation of the trust term is too remote, as tending to a perpetuity in violation of the 15th

section of the statute, the limitation of these remainders tending to a like perpetuity, being inalienable for the same length of time, are equally objectionable and void. The entire estate must therefore descend to the heirs at law. and they cannot be subsequently divested on the execution of the power by the trustees. Should the court concur with me in the conclusion at which I have arrived, it will become necessary to inquire into its effect upon the annuities, legacies and portions, and to shape the decree which shall finally be made accordingly.

As to those heirs to whom beneficial interests have been given under the will, in the shape of legacies or annuities, which are consistent with the law and valid, they must be put to their election. They cannot be permitted to take under and also in hostility to the will, unless such is the clear intent of the testator, about which there can be no doubt in this case. Thé first case upon this question is Noyes v. Mordaunt, 2 Vern. 581.

There the testator devised to his daughter A. lands in fee simple, and to his daughter B. lands settled upon him in tail: and it was decided that if A. should claim a share of the entailed estate under the settlement, as this devise was void, she must give up the land in fee simple ; for, it was said, the testator having disposed of his whole estate among his children, what he gave to them was upon the implied condition that they should release,to each other. This principle has been recognized and applied as sound law, ever since the decision, which was in the year 1706. In the case of Whisler v.

Webster, 2 Ves. 367, the testator, before his death, transferred to a friend leasehold property and moneys in trust to raise £3000, which after his death was to be paid to his children, in such manner as he should appoint by his last will, and in default of such appointment, among them equally. By bis last will he gave several legacies to his children out of other property, and under the above reserved power of appointment gave several legacies to his grand-children.

These were void, as by the terms of the settlement the appointment could only be made to his children, and in default, the money was to be paid among them equally. Some of the children filed their bill to set aside the legacies to the grand-children. They were conceded to be void, and the only question in the case was whether the children were bound to elect. The master of the rolls considered it a clear case of election, and observed that the cases of Noyes v. Mordaunt, and Streetfield v.

Streetfield had established this broad principle, that no man shall claim any benefit under a will, without conforming as far as he was able, and giving effect to every thing contained in it whereby any disposition is made, showing an intention that such a thing shall take place, without regard to the circumstance whether the testator had any knowledge of the extent of his power or not. He concluded by making the children elect whether they would take their legacies under the will, or give them up and take under the settlement. In 13 Ves. 209, after Mr.

Thellusson’s will had been before the house of lords and the trusts in it sustained, it came again before the chancellor upon a question of election. The testator hatT purchased real property after the publication of his will, which of course did not pass under it, and descended to the heir at law. But he had contemplated such purchase before its execution, and provided in it that all such contracts should be completed by his trustees, with the conveyances taken to themselves, and that they should stand seised of the estates for the benefit of the several trusts in the will.

The heir at law had a legacy and some other beneficial interests devised to him, and the question presented was, if he was bound to elect whether he would take under the will or as heir at law. The lord chancellor said that the jurisdiction exercised by this court compelling election may be thus described; a person shall not claim an interest under an instrument without giving full effect to that instrument as far as he can.

If therefore a testator intended to dispose of his property, and making all his arrangements under the impression that he has the power to dispose of all that is the subject of the will, mixes in his disposition property that belongs to another person, or property as to which another person has a right to defeat his disposition, giving to that person an interest by his will, that person shall not be permitted to defeat the disposition where it is in his power, and yet take under the will. The reason is the implied condition—he shall not take both; the consequence follows, he says there must be an election.

Again, he observes, this is a case of a man having a clear right to dispose by will of both his real and personal estate ; but his disposition fails as to these real estates by his ignorance of the distinction that a will of a subsequent date was necessary. That Mr. Thellusson, the heir, takes the estates, therefore, as if his father had not made a will; but he says, my opinion is he cannot also take what is given to him by the will. See also 2 Ves. & Beame, 187. Gilb. Eq. R. 15. Sugden on Vendors, 170 and note. 1 Swanst. 402, note. 2 Maddox, 47, 50.

Upon these principles and cases, it is very c]ear that the heirs who will inherit the estate upon the will being declared void, and to whom beneficial interests have keen bequeathed, must be put to their election. By Mr. Justice Bronson. The rule that the intent of the testator is to govern in the construction of wills has no necessary connection with the inquiry whether the devise or bequest is consistent with the rules of law. When we have ascertained what particular disposition the testator intended to make of his estate, then, and not before, the question arises whether the will is valid.

If the disposition actually made is not inconsistent with the rules of law, the will is good and must be carried into effect, whatever the testator may have thought about the legality of the act; and on the other hand, if the disposition actually made is contrary to law, whether it happened through design or the want of accurate information, the will is worthless, and we have no choice but to declare it void. The will may be good in' part and bad in part. Distinct independent provisions, which are in themselves free from objection, will not be invalidated by other separate provisions which are contrary to law.

But if the good and the bad are so intermingled that the one cannot be separated from the other, then both must fall together; and where a particular disposition, which would be valid if it stood alone, forms a part of, or depends on a general purpose which is contrary to law, there both will be alike void, and must share a common fate. In connection with this remark, I will briefly compare the will as it stands, on the decree of the chancellor, with the original disposition made by William James.

In doing so, I shall only notice some of the most important particulars in which the intent of the testator has been overthrown by the decree. The decree declares that the whole annuity of $3000 to Mrs. James, became lapsed by her election to take dower in the real estate. This annuity was given not only for her own support, but for the education and support of the children, and was the only provision made by the testator for minors during the life time of their mother.

The directions in the will for making advances and giving marriage portions to the seven children and two grand-childrcn interested in the eight and a half shares, are also declared void. These, with the annuity to Mrs. James, constitute the only provisions made by the testator for most of his children during the life time of their mother; and if other parts of the will had not also been overturned, the children would at this moment have been utterly destitute of the means of support, unless they were derived from some other source than the estate of their father.

But there are other and more important points in which the intent of the testator has been frustrated. He directed the estate to be divided into twelve equal parts, and then disposed of the whole. As to three and a .half of those shares, the will is declared void by the decree. The testator in effect directed an accumulation of the rents and profits of the estate during the continuance of the trust. Under this provision it is but reasonable to suppose that the estate, subject to all the probable charges on rents and profits, would have doubled in value before the final distribution.

The whole provision for accumulation is declared void. This part of the decree alone defeats the intent of the testator to the extent of one half the probable value of the estate at the end of the trust term. As to eight and a half shares of the annual rents and profits, the decree declares that they belong to the seven chilren and two grand-children as the persons presumptively entitled to the next eventual estates in eight and a half shares on the final distribution of the property.

The effect of this part of the decree is to give this portion of the rents and profits to the nine children and grand-children immediately ; whereas, by the will, they would receive nothing until the end of the term, and if they did not live until that time, they could never take any portion of the rents and profits—they were to go to others. Enough has been said to show that the will of the testator has undergone a great change in passing through the court of chancery. I shall only notice one other particular in which the intent of the testator has failed.

If either of the nine beneficiaries die during the term, the will directs the trustees to convey his or her share to other persons. The decree declares all the substituted estates in remainder void. To arrive at the effect of this part of the decree, let it be supposed that Augustus James, one of the beneficiaries, dies during the term. The estate devised to the trustees, after paying debts, was "valued at about twelve hundred thousand dollars. Without any advance in value, the share which would go to the family of Augustus in the event of his death during the term, would be one hundred thousand dollars.

In consequence of declaring the substituted remainders void, this share will go, not to the family of Augustus, but to the family of the testator. As Mr. James left nine children and grand-children .representing two others, the share must be divided into eleven parts, and the family of Augustus, instead of receiving one hundred thousand dollars as the testator directed, will get only one-eleventh part of that sum, or a fraction over nine thousand dollars.

And if, upon the true construction of the will the three and a half shares were to be divided among the same persons who are to take the eight and a half parts, then the family of Augustus, in the event of his death before the end of the term, should receive more than one hundred and forty thousand dollars. But under the decree, they will only get a fraction over nine thousand dollars, or less than one fifteenth part of what they would take under the will.

The same consequences must follow in relation to any other of the nine beneficiaries who may die during the term- If the law has rendered void so large a portion of the trust which the testator attempted to create, it is well worthy of consideration whether the residue can be sustained. But in the view which I have taken of the case, it will be unnecessary to pass upon that question. I shall now examine the will as it came from the hand of the testator, for the purpose of ascertaining whether the whole or any part of it can be carried into effect consistently with the. rules of law.

The testator, after providing for his wife, devised all the 1 ° residue of his estate to trustees for a period of about twenty years, in trust to receive the rents and profits, and from them to make certain payments and advances; and at or near the end of the term to make partition of the- estate among the designated objects of his bounty. The questions which lie at the foundation of the whole case are, First. Whether the devise to the trustees is valid, so as to vest the estate in them ; and Second. Whether any part of the the will can be carried into effect under the doctrine of powers.

Both of these inquiries depend principally on the true construction of the second title of the act concerning the acquisition, enjoyment and transmission of property. 1 R. S. 721, 738. This statute has made great, and, in some respects radical changes, in the law of real property, and-very little has yet been done by way of giving a judicial

interpretation to its provisions. Whether it was the dictate of a wise public policy to make so great an inroad upon settled principles, as was effected by this enactment, is not my province to determine. In this place 1 shall neither praise nor condemn the late revision of the laws. It is enough that they have passed through all the forms prescribed by the constitution, and furnish the rule of decision to this and all other cases falling within their influence.

Like other statutes, they must be so construed as to carry into effect the intent of the law makers ; and we are not at liberty to turn aside from the path where they lead, for the purpose of avoiding consequences which may not correspond with our notions of what is best for the interests of society. If these laws, when fairly expounded in accordance with established principles of.

interpretation, are found to operate injuriously in any particular case, the remedy must be applied by the legislature, and not by courts of justice. First. In considering that branch of the subject which relates to the validity of the devise to the trustees, 1 shall inquire, I. Whether the trust is valid in relation to the objects or pUVp0Ses for which it was created, and the manner in which is declared : Whether the power of alienation is suspended during the trust term : and III. Whether the trust term is limited according to law.

It is important to notice at the outset that all uses and trusts, except as authorized and modified by the statute, are abolished, § 45. Trusts, arising or resulting by implication of law, are for the most part preserved, § 50, 54. But there can no longer be any express trusts except such as are authorized and defined by the statute, and those are all enumerated in the 55th section.

To give effect to the statute in the spirit in which it was enacted, we must, as far as practicable, eradicate from our minds all that we have learned in relation to the doctrine of trusts as they existed before the late revision, and read the statute as though the particular kinds of express trusts which it specifies were now for the first time authorized by law. We may resort to the common law for

definitions and rules of construction where the statute itself is deficient. But in attempting to ascertain whether any particular trust can now be created, we cannot resort to the common law, for the obvious reason that this light has been extinguished by the legislature. Whether a particular description of trusts is adapted to the wants of the society in which we live, or would prove beneficial to any class of individuals, is a question with which, in this place, we have no concern.

We can only read the statute, and give effect to such trusts as it has specially authorized—all others being illegal and void, unless capable of execution in another form, § 58. All formal or passive trusts are abolished, § 45, 47, 49; and those active trusts which are specially authorized, have undergone some important modifications. With a single exception, § 56, every valid express trust vests the whole estate in the trustee, both at law and in equity, subject only to the execution of the trust; and the beneficiary takes no estate or interest in the lands, § 60. Where the trust is expressed in the instrume

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