i ih rybeyruterlC opt rents Sapa! irs Gornll Law School Library CORNELL UNIVERSITY LIBRARY yUSPHNSIUON OF THE POWER OF ALIENATION, AND POSTPONEMENT OF VESTING, UNDER THE LAWS OF NEW YORK, MICHIGAN, MINNESOTA AND WISCONSIN. WITH AN APPENDIX CONTAINING THE CORRESPONDING STATUTES CONCERNING SUSPENSION IN THE STATES OF CALIFORNIA, IDAHO, INDIANA, IOWA, KENTUCKY, NORTH DAKOTA AND SOUTH DAKOTA. BY STEWART CHAPLIN, COUNSELLOR AT LAW. NEW YORK: BAKER, VOORHIS & COMPANY, 1891. YAG Copyright, 1891, By STEWART CHAPLIN. KE 654 CH6 S41 cl Press oF WILLIS MoDonaLp & Co. 39-48 Gold St., N. ¥. PRHFACH. The well-known works of Mr. Lewis and of Mr. Mars- den on Perpetuities, and of Professor Gray on Perpetui- ties, and on Restraints on Alienation, deal with the law in. force in England, and in many of our States. With the adoption of the Revised Statytes, however, New York abandoned the systeia embodied in this law, and instituted a system of her own, which, except in its application to personal property, has since been adopted in Michigan, Minnesota and Wisconsin. The changes thus introduced have been of so radical a character as to render inapplicable, to a large degree, the treatises and reports embodying the earlier law. The present book deals with the law of New York, Michigan, Minnesota and Wisconsin, on the subject of suspension of the power of alienation, and of ownership, and postpone- ment of vesting, and points out, in an appendix, certain features in which the laws of the three latter States differ from those of New York. The appendix also gives the statutes of seven other States, which have followed the lead of New York in so far as to substitute for the Rule against Perpetuities a statutory provision against suspen- sion of the absolute power of alienation, and in which many of the principles discussed in the following pages are consequently applicable. New York, October, 1891. CONTENTS. PAGE. TABLE OR SPAT ULES cs vasagents sigs aiadyek Ab ecetersenes eyed xi TABLE OR GASES wsceecee dels wasdind ansianiehi aasa.s bd aeteae aeeard xxi CHAPTER TI. INTRODUCTORY. SECTIONS. I, Tre Two RUumess ¢scs sce acces ctw stead yeaa sees Meauwa bales 1-3 TI. Estates IN REAL PROPERTY.... 1.0.0... 00. cece eee eee 4-60 1. Estates at Common Law............... APewe hPa eisewawhes 4-8 2. Estates under the Revised Statutes.............. 2.0. ee eee 9-13 3. Vested and Contingent Remainders at Common Law...... 14-27 4. Vested and Contingent Future Estates under the Revised Bide Wnavaonsautasa qiaaoarweanwanea ines sam aides 28-52 5. Contingencies Precedent and Subsequent................. 53-56 OI ow ww mH 6. Vesting Subject to Being Divested and Subject to Open... 57-60 CHAPTER II. SUSPENSION OF THE POWER OF ALIENATION. . The Absolute Power of Alienation. No Persons in Being...... 64-68 . What Estates are Alienable............ 0... cece cence rece cates 69-79 . The Statutory Period. ....... 0. cece cece tence ene ee eenns 80 . The Creation of the Estate... 00.0.0... ccc cece teeter eae 81-88 The Two Lives in Being ......... cece cece cee ete nent ee enees 89-107 . Additional Measures of the Term.......... 0c. cece eee cece eee 108-111 . Alternative Measures of the Term. ............:eeseeeeeeereee 112-113 . Limitations of the Statutory Requirement...........c0. ee eee ee 114-116 vi CONTENTS. CHAPTER III. SUSPENSION OCCASIONED BY CONTINGENCIES. SECTIONS. I. ConTINGENT FUTURE ESTATES. ...... 6.00 cr secre een teenies 124-128 II. CONTINGENT REVERSIONS..... 0.0.00 cess cess nee eee ee eens 129 III. Contrncent INTERESTS, RIGHTS AND POSSIBILITIES....... 180-141 1. Possibility of Reverter.........0ce eee eee sree eee e eee ees 131 2. Right of Entry for Condition Broken.............++++++ 182-133 Bi. MOTPAVESS ccccenctine saa Ws, mal eT Le gee tEn eS 134 4, Annuities and Other Charges on Land............- see 135 5. Docketed Judgments........ 0... cece cece eee ee eee eneee 136. 6. Contracts Relating to Land..........ceeeeeeee cree eceees 137 NTs: THOS CIMA ti cits cca cect dancer unease ed snes danas Sangre e aUanars sorte Spatens 138. 8. Covenants and Restrictions.......... 0... 0c eee ence eens 189-141 CHAPTER IV. SUSPENSION OCCASIONED BY EXPRESS TRUSTS. 1. Creation of Express Trusts. ...... 0... cece cece crete te eeeee 149-157 (A By WAM eco eich ven aed oe Roe eR Reena ES 149 (2: Biy Deed ase nice sivas wiela'y dul eau oem meneame ds inieeaee 149 (8.) Declaration of Trust... 0.0... cece eee e eee eee eee eee 150 (4) Essentials... viuccciicidarcawnv oven eearscaweesencrancas 151 (5s) INO HSSCM HAS 0 isso osse die tecnerdra tery aya anne meters tin on 152. 2. Termination of Express Trusts ............6 cece cece cece ueces 158-161 (1.) By Express Limitation... . 0.0.0... ccc cece cece ee ee eens 158: (2.) By Failure of Purpose....... 0... cece cece eee e eee eaeee 159-161 8. The Title: of the Trustee. os..9s0 apes caeesernensns ee eereraeeie sy 162. 4, The Interest of the Beneficiary... ....... 0... cece cece ee erent 163-165 5. Where the Same Person is both Trustee and Beneficiary... eek ou 166-169 6. Tenancy of the Beneficiaries... ....... 0.0... cee cece cece eee eee 170-223 A. Where the Intent is Shown... ... 2... cece cece ee eee eee eee 175-185. B. Where no Intent is Shown..... 2.2... cee cece c eee eee 186-223 (a.) The Common Law Presumption of Joint Tenancy... .187-189 (0.) The Statutory Presumption of Tenancy in Common . .190-204 (Le). Real Property iss ares wena wiacigus suclesererpiaveleisiatslauee acaave 190 (2.) Personal Property. ..cei.ca6eiieiiaienenwnaewnwiewside 191-204 (c.) The Presumption in Case of Trusts................- 205-223. CONTENTS. vii SECTIONS, 1, LWO: LANES Ui. Being i sissies nbmers ae av vee Ue ae Gee Came ee 224-230 8. The Four Classes of Express Trusts.............0ccceeeeeee oe 231-276 (l.) Trusts to Sells sean sacs onsis sites aeeate te ade ieee weenie 232-248 (2.) Trusts to Sell, Mortgage or Lease...........eesceeee eens 232-248 (8.) Trusts to Receive and Apply Rents..............eeeeeees 249-251 (4.) Trusts for Accumulation.......... cc... cece eee e eee eens 252-276 1. When Accumulation must Begin. ............... 0000: 256-258 2. For Whom Accumulation may be Made............... 259-260 3. How the Term must be Measured.................0005 261 4, When the Term must End...............seeeee teen ees 262-276 CHAPTER V. SUSPENSION OCCASIONED BY POWERS. 1. Powers that do not Occasion Suspension...........sseeeeeerees 288-295 (@.) Beneficial Powers. ........ ccc ccc ec ec ce nc cree eeeeeees 283 (8.) Title Vested in Beneficiary under Power..............- 284-285 (¢:) Hlectioness setes es eiewa, aan We eas eatniaienns eOeeoa ae os 286 (d.) General Power of Sale. ....... cece cece cece ee cee eeeee 287 (e.) Postponement of Possession... ......ees.cceeeeeec eens 288-295 2. Powers that do Occasion Suspension ............. sees ee eee eeee 296-300 (a.) Future Sale, Proceeds to a Trustee...........02eeceees 297 (b.) Sale, proceeds in Future to Unascertained Persons...... 298-300 8. Powers that Obviate Suspension which, but for their Presence, Would.eXists cis iiaey asec aavaeuen savea tee ven ead wane nee den 801-313 CHAPTER VI. POSTPONEMENT OF VESTING. 1. Remainder Limited on Estate for Years. ...........ceseeeeeees 319 2. Remainder Limited on Estate for Life,............. cece eee 820-335 8. Remainder Limited on Estate in Fee. .......... ccs ee cece ee eee 336-344 4, Precedent Estate in Tenants in Common...............ee-eee- 345-359 (a.) The Successive Life Estates..............006 Livdieaieciae’, 348-352 (.) The Ultimate Remainder..............0. cc cee ence ene 858-359 5. Precedent Estate in Joint Tenants.............. 00sec eee eeeeee 360-366 6. Precedent Estate in Trustees........... 20 cece cece ee ee eens 367-379 viii CONTENTS. CHAPTER VII. SUSPENSION OF THE ABSOLUTE OWNERSHIP OF PERSONAL PROPERTY. SECTIONS. I. SusPENSION OCCASIONED BY CONTINGENCIES......+...eee000> 387-426 1. The Distinction between Vested and Contingent Interests .388-423 (a.) Postponement of Possession............eeeee serene 394-395 (5...) Postponement in New York,......... 0000 ese eeeeee 396-410 (c.) The Scope of the Rule..... 1... 0.06 ceeeeeseeeeeee 411-423 2. Death before Actual Distribution...............-e ee eee 424-425 Bi SULVIVOTSHID «sane rev oie elas anes mara ndveana ee sewanh eee SSESS 426 II. SusPENSION OCCASIONED BY TRUSTS........000 00 ccc eee te eee 427-438 1. Creation, Duration and Termination of Trusts........... 428 2. The Purposes of Trusts.......... cece cece eerste en eeens 429-434 3. Effect of Trusts on Absolute Ownership.............-.05 435-438 III. Suspension OccasIoNED BY PowWERS IN TRUST...........+ 439 CHAPTER VIII. GIFTS TO CHARITABLE CORPORATIONS. T. ‘The Period after Vesting. ei ce ise vd eee 04s aiseneeageiene odes 446-452 2. The Period before Vesting............. cc ccc eee eee e cece ee 453-457 3. Variations, Modifications and Restrictions ............ 00000000: 458-463 (a@.) Gifts on Condition... 0.0.0.0... cece cece reece enceeenes 458 (0.) Gifts to the Officers... 2.0... eee en eee ee ence eens 459-460 (c.) Limitations on Amount... 0.0.0.0... ccc cee cece een eee 461-462 (d.) The Two Months Provision..............ccceee eee eaes 463 CHAPTER IX. EQUITABLE CONVERSION. I. SUSPENSION oF PowWER OF ALIENATION, AND OF OWNERSHIP. 464-468 II. Tae BEaRInG oF EQUITABLE CONVERSION ON SUSPENSION.. 469 TIL. GENERAL PRINCIPLES......... 0.00 cc cc ceeeccccceucecucuces 470-478 CHAPTER X. SEPARABILITY. I. GENERAL PRINCIPLES. 2.2... 00.0 ccc cece cc ec cecceccaesaes 480-482 II. ContINGENCIES WITH A DouBLE ASPECT.............00000. 483-499 1. Simple Alternative Contingencies.................000 00: 483 2. Involved Alternative Contingencies. ...............0.00- 484-494 3. Contingencies with an Alternative Application........... 495-499 CONTENTS. ix CHAPTER XI. CONSTRUCTION. SECTIONS. I, Wailure of Westies. i ccs acer acon ssesowecs waxes oud Shaw sees eee 5 501 2. BULVIVOLSHAP ers ek are eiets elena eee paras wears anare Ceaieal ne pmInminaE 502-503 Bi Hstates! Tails sv ccawacaass deus tacieacstedowaaweiinns shiheccu aie 504-506 4, Rule in Shelley’s Case..........0 0 sc cece cece cece sree tec cncens 507 5. Lapsed Legacies... ....... 0... cece eee e eet e reece tneeees jeicaeas 508 6. Expressions of Postponement........... 2c. cece cece ee ee cence 509-511 % Death before Division... ......... cece cece eee eee eect cees 512 8. Absolute Power of Disposition............. cece eee cence eters 513 9. Childbearing, Capacity Presumed... ....-..cseeece eens ee en eee 514 10. General Rule of Construction. ........ 0.0. cece eee eect e enone 515 CHAPTER XII. CONFLICT OF LAWS. I. Lanp, Law or PLACE WHERE IT LiIES........... 00.0 cee eee 516-522 II. Personatty, Law or TESTATOR’s, AND OF LEGATEE’S Dom- ICs jasc eee evoumegawsngeeuens qe ndgesomdgaasukeTS 523-542 APPENDIX. I. SuspENsION FOR Two LIVES IN BBEING............ eee ec eee 548-546 F MIGhi Pant scsi tains icpessaeant eitcas narayaaw aauaRAe weed aoe 544 22. MinnesOla oisaclaccines wai aa eid ceaadeniners gated ns eaiea meee 545 B. Wisconsin... ......cccee cree e voter re ceetentneeerengees 546 IL. Suspension FOR LIVES IN BHING........-...02 0s sees ee eee 547-555 Te California sissy ha die ed alea-c de trtiaw anatase siden ommearadceaa 548-549 9. Wao. uss caciens anise v ow eniiadh auaseren akeaaae ven 550 8: Tndian ti weeaaceniace xueatr canis etawnad dade ge mae te beiee, 551 Ais TOW s. 5 sna eres 004 gods Ween ae wise nun eee ames SS 552 B.. Kenttickye. ssc cc ga te siasa ta earns cages Valea eee ve ees 553 6; North: DakOtasccines vcscacelepaces qaisiecdaiede Sis eee eee 554 & South Dakotaiw:s 62 caais tas ses eswReasees wednaesaeeas 555 TABLE OF STATUTES. I. New Yorx, Micnican, MINNESOTA AND WISCONSIN. II. Carrrornia, Ipano, Inprana, Iowa, Kentucky, Norra Dakota anpD Sourn Dakota. I. NEW YORK. Revised Statutes. Eighth Edition, Birdseye’s Edition, Pages in this Book. ~ 1889. 1890. 1R. 8. 722, §1 2525 5, 89, 91 2 2525 6 3 2525 289, 290 4 2526 290 5 2526 6 7 2526 6 728, § 8 2526 6, 47 9 2526 6 10 2526 6 11 2526 6, 8 12 2526 6 18 2526 7, 19, 30 14 2527 42, 43, 44, 51, 75, 150, 168 15 2527 42, 46,51, 75, 184, 135, 186, 187, 150, 168 16 25217 38, 42.51, 134, 150, 152, 153, 163, 17 2527 150, 188, 196, 283 724, § 18 25217 150, 188, 196 19 2527 150, 188, 196 20 2527 150, 187 xii Eighth Edition, 1889. 1RB.S. 724, § 21 a) 23 24 25 725, § 28 30 81 32 33 34 35 36 726, § 37 38 39 40 41 42 43 727, § 44 45 46 Any 48 728, § 55 729, § 56 57 58 59 60 61 62 780, § 68 65 67 TABLE OF STATUTES. Birdseye’s Edition, 1890. 2528 2528 2528 2528 2528 2528 2528 2529 2529 2529 2529 2529 2529 2529 2529 2530 2530 2530 2530 2530 2530 3176 3176 3176 3177 3178 3178 3178 3178 3179 3179 3179 3179 3179 3179 3180 Pages in this Book. 150, 190 286 Index, “ Chattels Real.” 8, 150, 187, 192 274 20, 280 78 Index, “Posthumous Children.” wi 7 8 7, 26, 41, 49, 79, 205 91 148, 149, 150, 151, 154 149, 150, 154 159 159 51 Index, “ Expectant Estates.” 115 115, 116, 117, 118, 119, 122, 125, 126, 129, 130 90, 163, 250 90 90 90 88, 89, 124, 125, 126, 182, 134 186, 187, 139, 143, 144, 145 90, 163 90, 101 89, 90 90, 163 98, 99, 100, 124, 125, 143, 190 207 100, 191, 207 100, 207 91, 92, 120, 140, 148, 145, 165, 246 ’ 90, 246 97, 147 TABLE OF STATUTES. xiii Eighth Edition, Birdseye’s Edition, Pages in this Book. 1889. 1890. 1B. 8.780, § 68 3180 97 70 3180 97 782, § 73 2288 89, 163, 248 74 2288 161 15 2288 161 76 2288 161 77 2288 161 78 2288 161 79 2288 161 80 2288 163 81 2288 164 82 2288 164 783, § 88 2289 164 84 2289 164 85 2289 164 36-92 2289 163 784, § 98 2289 164 94 2290 162 95 2290 162 96 2290 162, 177 97 2290 162 98-102 2290 168 735, § 108 2290 164 104 9291 164 106 2291 162 787, § 128 2298 55, 176 738, § 185 2298 162 ; 778, §1 2198 46, 134, 216 2 -2198 117, 119, 120, 121, 122. 128 3 2194 244 794, 84 2194 244 2R.8. 57,§8 3342 251 184, § 6 1233 93 185, § 7 12338 93 Code of Civil Procedure. § 1879 1714 101 2717 1108 226 xiv TABLE OF STATUTES. Session Laws. (1813) (R.L.) Chap. 60,§ 4 (1820) (1839) (1848) (1849) (1860) (1870) (1875) (1882) (1884) (1886) (1890) (1891) pres ene Pages in this Book. 1890. 2578 Q57 320, § 10 3178 88 174, 3181 257 319,§ 6 262 262 375, § 2 1404 98 322, 1233 938 360,§ 1 3345 261 51, 264, 265 262 545, 3180 97, 147 275, 91 26, 91 257, 3179 91 77, 256 209, 91 MICHIGAN. References are to Howell’s Annotated General Statutes, 1882. G.8. Sec. 5517 5518 5519 5520 5521 5523 5524 5525 5526 5527 *§529 5530 5531 5532 5583 Pages in this Book. 5 6 289 290 PADMADAAAH we 3 8 7, 19, 30 42, 43, 44, 51, 75, 150, 163 41, 42, 46, 51, 75, 184, 163 8, 42, 51, 75, 163, 192 188, 196, 283 G. 8. Sec. 5535 5536 5537 5538 5544 5546 5548 5549 5550 5051 5553 5554 5555 © 5556 5560 5563 5573 5574 5576 5577 5578 5579 5580 5581 5583 5585 5590 5591 5593 5594 5595 5596 5598 5599 5600 5601 5602 5603 5610 5611 TABLE OF STATUTES. Pages in this Book. 188, 196 8, 187 190 286 20, 290 78 q q 8 7, 26, 41, 49, 79, 205 148 148 159 159 115 90 184, 804 163 163 163 98, 99, 124, 190, 207 207 207 91, 92 90 97 163 161 161 161 161 161 164 164 164 164 164 164 164 162 XV xvi G. 8. Sec. 5612 Sec. 5613 5614 5620 5621 5623 5641 5644 5651 6179 TABLE OF STATUTES. Pages in this Book. 162 162, 177 162, 177 164 164 162 55 176 162 98, 94 MINNESOTA. References are to Kelly’s Edition of the General Statutes, 1891. Ga. 8. 3950 3951 3953 8954 3955 3958 3960 3961 3962 3964 3965 3966 3967 3968 3969 3971 3975 3976 3977 3978 3980 3982 3984 Pages in this Book. 5 6 6 289 290 115 6 6, 47 6 7, 26, 41, 49, 79, 205 ” 7 6 6 7, 19, 80, 718 42, 48, 44, 51, 75, 150, 163 42, 46, 51, 75, 134 6, 8 286 188, 190, 196, 283 188, 196 20, 290 TABLE OF STATUTES. xvii G.S. Pages in this Book. Sec. 3985 8, 42, 51, 75, 168, 192 3986 8, 187 3989 8 3992 159 3993 148 3994 148 3995 159 4003 90 4018 184, 304 4014 98, 99, 124, 190, 207 4015 207 4016 207 4018 163 4020 91, 92 4021 163 4022 163 4023 97 4024 90 4030 163 4032 161 4033 161 4034 161 4035 161 4036 161 4040 164 4041 164 4043 162 4049 162 4050 164 4051 164 4052 164 4053 164 4054 164 4055 164 4056 164 4057 162 4058 162 4059 162, 177 4060 162, 177 B Xviii G.s. Sec. 4063 4089 4230 TABLE OF STATUTES. Pages in this Book. 164 55, 176 93, 94 WISCONSIN. References are to Sanborn and Berryman’s Annotated Statutes, 1889. Ga. 8. Sec. 2025 2026 2027 2029 2031 2082 2033 2034 2035 2037 2038 2039 2040 2041 2042 2044 . 2045 2046 2052 2054 2056 2057 2058 2059 2061 2062 2063 2068 2071 2081 2082 Pages in this Book. 6, 8 7, 19, 80 42, 48, 44, 51, 75, 150, 163 42, 46, 51, 75, 184, 163, 258, 305, 306 8, 42, 51, 75, 163, 192 188, 196, 283 188 8, 187 190 286 20, 290 78 7 7 8 7, 26, 41, 49, 79, 205 148, 305, 306 148 159 115 90 134, 306 163 TABLE OF STATUTES. xix G. 8. Sec. 2084 2085 2086 2087 2088 2089 2091 20938 2101 2102 2103 2104 2105 2106 2107 £108 2109 2110 2111 2112 2113 2120 2121 2122 2123 2124 2130 2131 2183 2152 2158 2302 Civil Code. Secs. 715, 716, 771, 772 Pages in this Book. 168 163 98, 99, 124, 190, 207 207 207 91, 92 90 97 163 161 161 161 161 161 161 164 164 164 164 164 164 164 162 162 162, 177 162, 177 164 164 162 55, 176 162 98, 94 II. CALIFORNIA. Pages in this Book. 307 xx . TABLE OF STATUTES, IDAHO. Revised Statutes (Ed. 1887). Pages in this Book. Secs. 2836, 2851 308 INDIANA. Revised Statutes (Ed. 1888). Secs. 2962, 2963, 6057 309 IOWA. Annotated Code (McClain’s Ed., 1888). Sec. 3091 309 KENTUCKY. General Statutes. Ch. 638, Art. 1, sec. 27 310 NORTH DAKOTA. Compiled Laws of Dakota Territory. Secs. 2717, 2718, 2744, 2745 310 SOUTH DAKOTA. Compiled Laws of Dakota Territory. Secs. 2717, 2718, 2744, 2745 311 TABLE OF CASES. (The references are to the pages.) Ackerman ». Gorton, 67 N. Y. 68...... 0... ccc cc cece cececceceenees 291 Adams 2. Becker, 47 Hun, 65........... 0000 ccc cece ee cece ceceueees 288 Adams »v. Perry, 43 N. Y. 487... .82, 89, 94, 188, 252, 256, 257, 261, a Akin v. Kellogg, 119 N.Y. 441... 0... cece cece c cece cece ee eeeee 98 Allen 2. Howe, 105 Mass. 241........... cece cece nec ee serene eeeee 82 Amory v. Lord, 9 N. Y. 408...............00000 99, 102, 109, 191, 206, 271 Anderson v. Jackson, 16 Johns. 882........ 0.0... cc cece cece seve eeeee 287 Armstrong v. McKelvey, 104 N. Y.179........ ccc cc cceeeee eee eee 165, 269 Arnold ». Gilbert, 5 Barb. 190..........cce cece ecceeescceeeeeesecs 272 Asche ». Asche, 113 N. Y. 282.........ceecee cease 93, 98, 99, 100, 266, 268 Austin v. Oakes, 117 N.Y. 577... ccc eee cece cree esse cere eeeL02, 288 Avery v. Everitt, 110 N.Y. 817... 0... cece eee cece ee eres 198, 287 Avery v. N.Y. C. & H.R. BR. R. Co. 106 N. Y. 142..............00. 37 Ayres ». Trustees of M. E. Church, 3 Sandf. 351................000 250 Bache v. Tomlinson, 24 N. Y. Week. Dig. 282...... 0... cece eeeees 90 Bailey, Matter of, 24 Abb. N.C. 206...... 0... cc. cece eee e eee eee 254 Bailey v. Bailey, 97 N. Y. 460................. 68, 70, 97, 98, 135, 186, 187 Baker v. Lorillard, 4 N. Y. 257.000... ccc cee cee eee ee eee 89, 177, 198 Baker, Matter of, 6 Dem. 271......... 0. cc ccc gececceccvecccscvesees 233 ‘Baker v. McLeod’s Estate (Wis.), 48 N. W. Hp. GORA cess entiagacss 38 Baker v. Terrill, 8 Minn. 195...... 0... ccc ce cee eee eee eee e eran 90 ‘Banks: 2. Phelan, 4 Barb. 80.0 cs sacicwssscaeesesee eeeeseweaseeee ve 215 ‘Barbour v. Deforest, 95 N. Y.18....... ccc. cece ee eceneee 152, 154, 159, 246 Barker v. Crosby, 32 Barb. 184......... huletanealeyovieewasior owls migeaaes 272 Barrie v. Smith, 47 Mich. 180.......... ccc cece ccc cece cece eeeeeene 82 Barrow v. Richard, 8 Pai. 851.......-. 0. cece cece cence ec eeceeenece 82, 85 Barry v. Lambert, 98 N. Y. 800....... 0. cece cece cece cere tenes 242, 2438 Bascom »v.. Albertson, 34 N. Y. 584.............. 94, 249, 250, 251, 256, 299 ‘Batsford v. Kebbell, 3 Ves., Jr., 363......... 0 cece ee te cece cece eevee 235 Bean v. Bowen, 47 How. Pr. 806........ ..2. scenes 67, 152, 157, 246, 272 Bean v. Hockman, 31 Barb. 78. .......... ceccccccseccceeecscveses 60, 67 xxii TABLE OF CASES. [The references are to the pages.] Beardsley v. Hotchkiss, 96 N. Y. 201............05005 44, 72, 196, 216, 225 Béck o: Ennis; 54 Hun, 126.4300 seasesnuer ceaweseauwcean sea cee 288 Beekman v. Bonsor, 23 N. Y. 298.......... 67, 89, 94, 95, 97, 1'74, 232, 250 Beekman v. People, 27 Barb. 260...... .... eee cceeee ee ene gut cates 263- Belmont v. O’Brien, 12 N. Y. 894. ........ cece cece ee ee weenie 45, 101, 180 Benedict ». Webb, 98 N. Y. 460.......... cee ccc e cee eee eens waeegi 58, 271 Bennett v. Chapin, 77 Mich. 526... 0... cece ee cece eee eee cee eeneee 168. Bennett v. Culver, 97 N. Y. 250... .. cece cee ee ee te eens 37 Bennett v. Garlock, 79 N. Y. 802..... 0... cc cece cece eee eee eens 99, 208 Bennett 0. Rosenthal, 11 Daly, 91. ...... 00. c ese cece eee ence ee ene 89 Betts: v, Betts,4 Abb: N.C B07) ss iesicie acai vow sew tee ace oecle cae'e 168 Bevan v. Cooper, 72 N.Y. 817. 0.0... ce cece ce ecco en ee ence eens 108 Bevins v. Riley, 24 N. Y. Week. Dig. 85......... 0. cece ee ee ee te ee eee 1385 Bingham v. Jones, 25 Hun, 6..... 22... cece ee ee eee ee 105, 106, 107, 108 Bird v. Morrison, 12 Wis. 158... 0.0... cece cece cee eee e eee eens 93 Black v. Williams, 51 Hun, 280............. cc cece cece cece ee eeeeee 287 Blaker, Matter of, 12 N. Y. State Rep. 741............... ee eee ee 118, 195 Blanchard v. Blanchard, 1 Allen, 228........... cece cc cee eee eteeee 13: Blanchard v. Blanchard, 4 Hun, 287; aff’d 70 N. Y. 615........... 116, 117 Blanchard v. Blanchard, 70 N. Y. 615... .... 0... cece cece eters 117 Bliven v. Seymour, 88 N. Y. 469.......... ccc cece cece enone 119, 218, 226 Bogart, Matter of, 28 Hun, 466.......... 0 ccc ccc c cence ce eeeeceeeees 221 Bogert v. Hertell, 4 Hill, 492.0... . 0... ccc cee ccc cence cece nn ceeee 267 Bolton v. Jacks, 6 Rob. 166....... 0... ccc ccc ce een ence eeens 154, 156, 272 Boone ». Citizens’ Savings Bank, 84 N. Y. 88...............0. 0000 243 Booth »v. Baptist Church, &c., 126 N. Y. 215....... See Index, “ Charity.” Boraston’s Case, 2 Coke, 19......... cc ccc cere cess reecccscccece wee 291 Boughton v, Jones, 1 Colby Ch. R. 26......... cece cece eee e ese eeees 56 Boynton v. Hoyt, 1 Den. 538.2... 0... cece cece cece ce ec eeeenececs 59, 152. Bradhurst v. Bradhurst, 1 Pai. 881......... 0. ccc cece ccc ee ee ceees 146. Bradley v. Amidon, 10 Pai. 285....... 0... ccc cece cee cence eee eees 95 Bremer v. Penniman, 72 N. Y. 608; (aff’g Brewer v. Brewer)........ 179 Brewer v. Brewer, 11 Hun, 147; aff’d 72 N. Y. 608........ 45, 46, 178, 218. Brewster v. Striker, 2 N. Y.19....... 0... cece ec cc cccacceeevceue 95 Bridge 0. Ward, 35 Wis. 687..............ccc cece cues ienisaria averomseaxorae 86 Briggs o. Davis, 21:N. Vy 614 scx sicccsssaniinniend Vaan eae eae Oe eewe 208 Bromfield v. Crowder, 1 B. & P. (New Reports), 818................ 291 Brouwer 2. Jones, 23 Barb. 158. ...... 00... cece cece ence cecueue 82 Brown, Matter of Estate of, 98 N.Y. 295.......ceceeeeesececeeeee. 89 Brown, Matter of, 29 Hun, 412... 00.0.0... cee ce cece eee eecee 24. Brown v. Bronson, 35 Mich. 418........... 0... cc cece cceceececeece 94 Brown 2. Evans, 34 Barb. 594......... 0.0 cece cece cee cececeeceees 56, 60: TABLE OF CASES. xxiil [The references are to the pages.] Bruner v. Meigs, 6 Hun, 208; aff'd 64 N. Y. 506.............00000 104 Bryan v. Knickerbacker, 1 Barb. Ch. 409............ ieaiamssaieleeaot ¥ 152, 154 Buel v. Southwick, 70 N.Y. 581....... 0. cece ccc eee ce ee ccc cesees 288, 289 Bulkley v. DePeyster, 26 Wend. 21............. cece cece cee oneness 105, 106 Burke ». Valentine, 52 Barb. 412; aff'd 6 Alb. L. J. 167..... 59, 61, 62, 231 Burnham v. Burnham (Wis.), 48 N. W. Rep. 661...........06 sees 38 Burrill v. Boardman, 43 N.Y. 254......... 0... cece cece ee eeeeeee 239, 258 Bushnell v. Carpenter, 92 N.Y. 270.2... .... cece ccc e eens see eeeeees 226 Butler v. Butler, 3 Barb. Ch. 804........... cc cee cece ces eneeeee 58, 68, 185 Butler v. Butler, Hoffm. Ch. 844. ...... 0... cc ccc cece sea cteeetsene 63 Byrnes 2. Labagh, 38 Hun, 453. See Byrnes »v. Stilwell. Byrnes v. Stilwell, 108 N.Y. 458......... 0. ccc cece cece eens 12, 39, 40, 48 Calder v. Moran, 49 Mich. 14.......... 0.0 ccc ccc ccc cec ce eseeenees 94 Campbell v. Beaumont, 91 N. Y. 464........... cece cece cece eeeeeen 292 Campbell v. Campbell, 4 Bro. Ch. 15........ ccccceseeeee ceceteeees 116 Campbell v. Foster, 85 N. Y. 861............ ccc ccc e eens 120, 121, 123, 246 Campbell v. Rawdon, 18 N. Y. 412.00... 00... ccc cece eee eee 21, 40, 115 Carmichael v. Carmichael, 1 Abb. Ct. App. Dec. 809................ 32 Carroll ». Conley, 31 N. Y. St. Rep. 716. ...... 0... cee ee eee eee eee 288 Chamberlain »v, Chamberlain, 48 N. Y. 424... .257, 261, 262, 295, 298, on Chamberlain v. Taylor, 105 N. Y. 185............... 96, 161, 267, 268, 269 Chinn v. Keith, 4 T. & C. 126; (see Chism v. Keith)................. 24 Chipman v. Montgomery, 63 N. Y. 221 ...... 2 cece ee eee ee ee eres 271 Chism v. Keith, 1 Hun, 589; (see Chinn v. Keith).................4. 24 Christie, Matter of, 59 Hun, 158... 0... cee ce cece eee etter eee 95, 165 Church of Redemption v. Grace Church, 68 N. Y. 570.............. 257 City of Rochester, Matter of, 110 N. Y. 159........... 0c. ccc eee ee 96 Clancy v. O'Gara, 4 Abb. N. C. 268... 0... 0 ccc cece cence een e eee 236 Clarke, Matter of, 59 Hun, 557......... ce cece ee eee cet eeeas 91 Clason v. Clason, 18 Wend. 869........... cee eee cee eee ee eeees 241, 292 Clemens ». Clemens, 60 Barb. 366; aff'd 37 N. Y. 59...............-. 271 Clement 2. Burtis, 121 N. Y, 708........ SohANeRiauis coe weus eRieae ors 37 Clift v. Moses, 116 N.Y. 144... .. ccc cece cece eect weer en eee 268, 292 Clute @:, Bool, 8 Pai: 88 scat ccisccarrcnies tickers ga¥ euee eee s 146 Coit v. Rolston, 44 Hun, 548 ...........0 cece ccc ee eee ee nee 221, 291 Collin v. Collin, 1 Barb. Ch, 680...... 2... 0. ce eee eee weet e ete eneeee 241 Collins v. Marcy, 26 Conn. 242. ..... 0c cece cece e eet e eee eee eee 81 Colton v. Fox, 6 Hun, 49; aff’d 67 N. Y. 348....... 53, 67, 105, 106, 109, 27% Conkling v. Davies, 14 Abb. N. C. 499... ... cece cece eee ee ees 96 Converse v. Kellogg, 7 Barb. 590. ...... 0.0 cece caeeeeene ter enens 227, 228 Cook 9. Barr, 44.N.. Vi. ViG sacs cceie dts o tan cing ood s See Sees ee eee es 93 XXiv TABLE OF CASES. [The references are to the pages.] Cook v. Lowry, 95 N. Y.1038 ........... 122, 152, 158, 159, 164, 216, 246 Cooke v. Platt, 98 N.Y. 85... ... 0 ccc cece cece cece eee e ees eeeeees 89, 147 Cole v. Frost, 51 Hun, 578; aff'd 125 N.Y. 725 2.0... eee eee eee 263 Coster v. Lorillard, 14 Wend. 265......... 24, 28, 74, 91, 125, 180, 146, 273 Cottman v. Grace, 112 N. Y. 299............... 249, 250, 256, 261, 266, 293 Countryman v. Deck, 18 Abb. N. C.110........ fels'd oul Ma rare cere ie 37 Craig v. Craig, 3 Barb. Ch. 76..........0.0. 0c cee 72, 95, 152, 158, 159, 216 Craig v. Hone, 2 Edw. Ch. 554.0... . ccc cece ee erence e ee eeeee 56 Craig’o: Wells; 11.N.. Vui315. wiccccisoctess vise oss scanwetewearioms 81, 82 Crain 9. Wright, 114 N.Y. 807. soc ce ga cise sitiesida ea ewnee eas ee genet 292 Crise, Matter of, 26 N. Y. State Rep. 84............. cece seen e eee 242 Cromwell v. Cromwell, 2 Edw. Ch. 495; aff’d 3 Ch. Sentinel, 7....... 127 Crooke v. Co. of Kings, 97 N. Y. 421........97, 100, 135, 136, 137, 177, 292 Crooke v. Prince. Decided with Crooke v. Co. of Kings. Cross v. Carson, 44 Am. Dec. 742...... 0... cc cece cece ec eesetteeeeeeees 88 Cross v. U. 8. Trust Co., 25 Abb. N. C. 166...... 0... ccc cee eee ewes 800 Crossman, Matter of, 118 N. Y. 508......... cece cece cect ee ev eae 217, 246 Crozier v. Bray, 120 N. Y. 866....... 0.0 ccc ccc eee n rene eeeee 292 Cruger v. Douglas, 4 Edw. Ch. 488; aff’d 5 Barb. 225..........-... 148 Cruger v. Jones, 18 Barb. 467... 00... ccc cece ween cece neenees 91 Cruger a: McLaury; 41 Ny Y. 219. eccsiiee ces ciene sca uetes oanes seen 82 Cruikshank v. Home for the Friendless, 118 N. Y. 387..... 46, '72, 1'79, ae Currin v. Fanning, 13 Hun, 458.22... 0... cee ee eee ees 260, 261, 263 Curtis v. Fowler, 66 Mich. 698............. Te ASE a eeeEe eeu ces 42 Curtis ». Lukin, 5 Beav. 147.0... 0... ccc cece ce ence cece ceccecceeus 223 Curtiss x, Ayrault, 47 N.Y. 73... ...0 00. ccc cece ccc ec es ce eeseuaees 85 Cushman ». Horton, 59 N. Y. 149.00... 0.0 cc ccc cee cee cen eeeeee 21 Cutter v. Doughty, 23 Wend. 613; rev’d 7 Hill, 805................ 287 Cutting v. Cutting, 86 N. Y. 522.200... 0... cee cece 164, 216, 248, 292 Da Costa v. Bass, 48 Hun, 81......... ccc cece ccc ee ecec scene ecceee 221 Dana v. Murray, 122 N. Y. 604..... 8, 161, 175, 176, 188, 198, 199, 201, 202, 271, 283, 284 Davis v. Davis, 118 N. Y. 411......... 0. ..c000 cece cece cece eueuue 288 Darling v. Rogers, 22 Wend 483.........0. 2. ccc ccc ceeee eee 226, 272, 273 De Barante 0. Gott, 6 Barb. 492............ ccc cece cece cece cenees 56 Degraw v. Clason, 11 Pai. 186....... 0... ccc ccc cece cesses cuceees 146 DeKay »v. Irving, 5 Den. 646............... 00.000, 57, 67, 68, 95, 148, 274 Delafield v, Barlow, 107 N. Y. 585.........0 0... cc ccc e eee eee ee 159, 269 Delafield v. Shipman, 103 N. Y. 468....... 00... ccc eee 159, 220, 235 Delaney ». McCormack, 88 N. Y.174...... 0... cc cc cece cee ceeeee 237, 288 Den d. Hopper v. Demarest, 1 Zabr. 525....... aba on Beste Sah Pewe. ee 13 TABLE OF CASES. XXV (The references are to the pages.] Denike 0,:Martis; '84 Ni Ys 89 vc stee 2559504 25 eweuslonen exes Howl aw aw eae 99 Denton, Matter of Accounting of, 102 N. Y. 200.............00 00005 218 De Peyster v. Beekman, 55 How. Pr. 90.......... 0c. ccs ceeeeeeeeee 68 De Peyster v. Clendining, 8 Pai. 295; aff'd 26 Wend. 21............. 272 De Peyster v. Michael, 6 N. Y. 467.0... 0... cece cece cece cece euees 82 Despard v. Churchill, 58 N. Y. 192.00... 0.0.00 .c ccc ccc eee eee eee 299, 301 De Wolf v. Lawson, 61 Wis. 469......... cece cee cceeneees 67, 90, 804, 306 Dey Ermand, Matter of, 24 Hun, 1.......... 0 ccccece cece eee e ence 153 Dickie v. Van Vleck, 5 Redf. 284........ 0... cece ccs cece ee ceeeeeeee 109 Dillaye ». Greenough, 45 N. Y. 488......... 00... csc cece eee eee ee 95 Dodge v. Dodge, 31 Barb. 413.......0...cccecccceeceeteeucsausers 98 Dodge ». Stevens, 94.N. Y. 209... 0... cece eee ee eee ce tence ees 8 Dodge v. Stevens, 105 N. Y. 585... ... 0... eee cece eee eee eee 42 Dodge v. Williams, 46 Wis. 70.... 2.2... ce cece eee ee eee ee 90, 253, 258, 306 Doe dem. Long ». Prigg, 8B. & C. 281... 0... eee eee ce eee 287, 291 Doe v. Moore, 14 Hast, 601.......... ccc cece ee ec ee ee cece eeeeeee 291 Doe v. Pearson, 6 Hast, 178... 0... cece cece cee eee ee eee eee Sadar 86 Doe v. Provoost, 4 John. 61...... cece cece cece cece eee ee ee eenas 39, 291 Doe v. Webb, 1 Taunt. 288.0... 0.00 ce eee eee tenn n ees 196 Donovan v. Van De Mark, 78 N. Y. 244...... 0.0.2 eee eee e eee 95 Doubleday v. Newton, 27 Barb. 481........... 0... cee eee ete eee ee 278 Douglas v. Cruger, 80 N. Y.15........ ccc ee eee eee 90, 98, 97, 98. 99 Downing v. Marshall, 23 N. Y. 866............ 0c. cee eee 95, 184, 250, 256 Downing v. Marshall, 1 Abb. Ot. App. Dec. 524.........00. 02. cee eee 268 Drake vo. Lawrence, 19 Hun, 112.......... cee cece eee cee eee ees 24 Drake o. Pell, 3 Edw. Ch. 251......... 00.00 cece cee ce es 62, 220, 240 Draper v. Harvard College, 57 How. Pr. 269...........200-ee eens 3801 Draper v. Palmer, 27 N. Y. State Rep. 510............... 2c ee eee 156 Du Bois ». Ray, 85 N.Y. 162... 0.00... cece eee cece eee et 39, 127, 236, 293 Dungannon 2. Smith, 12 Cl. & F. 546... 0... cece cece eee 54 Dupre v. Thompson, 4 Barb. 279; aff'd 8 Barb. 538................. 272 ‘Edinger v. Heiser, 62 Mich. 598......... ccc cece ne cece eee cee eeeeee 94 Edwards v, Hammond, 3 Lev. 182........... 2c cece eect cere nn senee 291 Eells v. Lynch, 8 Bosw. 465 ...... 666 cece cece cece e eee e eet eees 62 Elwin:6,, Elwin, 8 Vé8.547 6 0.6 ccsce deca Sec euiee eee eeiadeaw semee vee se 241 Embury 2. Sheldon, 68 N. Y. 227........:eceeee ene eeeeee 99, 100, 208, 288 ‘Emmons ¢, Cairns, 3 Barb. 248. ........ 0. cece cece cece cece eee eeeeee 48, 44 Enos v, Sutherland, 11 Mich. 541........... 0. c cece eee e eee cee eee 94 Erwin v. Hurd, 18 Abb. N. ©. 91... ... cece cece eee ence ee teen ees 82, 254 Erwin 2. Loper, 48 N. Y. 521... .. ec cee cee cee ee eee e eee ewes 268 XXvi TABLE OF CASES. [The references are to the pages.] Everitt ». Everitt, 29 N. ¥. 39....48, 44, 72, 91, 105, 106, 107, 109, 112, 118, 119, 122, 180, 182, 168, 219, 220, 221, 229, 232, 248, 266 ‘ Evers v. Challis, 7 H. L. OC. 581........ 0 ccc cece cence cece ete eeees 281, 282: Fadness ». Braunborg, 73 Wis. 257....... 00sec e cece ree eetecceeee 258, 306 Farrand ». Pettit, (Mich.), 48 N. W. Rep. 156....... .... cece eee eee 67 Farrar 0. McCue, 89 N. Y. 189... 2... cece eee cece cee ee cece eens 43 Ferris v. Gibson, 4 Edw. Ch. 707......... ccc cece cere eect ee ee eee 287, 292 Field v. Field's Ex’rs,4 Sandf. Ch. 528.......... cece cece sees ee eeeee 59 Finley v. Bent, 95 N. Y. 864...... 0. cece cee tee cence eee ee eeece 240 First Presbyterian Soc. of Buffalo, Matter of, 106 N.Y. 251.......... 254 Fisher v. Banta, 66 N. Y. 468. .......... cece ee cece cece renee 266, 267, 269 Fisher v; Hall, 40 IN. YA Oo ise sca cee winpanievtecwies coveierere’sacee e's o's 90 Fitzgerald v. Topping, 48 N. Y. 488.......... ceceecee ence eee 91, 101, 180 Floyd v. Carow, 88 N. Y. 560....... 0... cece eee ee eee ghise See ERS es 79 Follett 0. Badeau, 26 Hun, 258. ........... cece ene c eee cece eeeeeee 938, 256 Fonda ov. Sage, 46 Barb. 109; aff'd 48 N. Y.173..............00000. 82 Foose v. Whitmore, 82 N. Y. 405... 0... ccc cee cee cece eee eee e ects 96 Foote:o: Bryant,47: Ni Vs (644 so casesesaste piece toe @ Seca rnneiib audpeie: ob tse re wee 257 Ford % Ford, 80; Mich::43 5: 2c500.0:55 oy atsingangnaeiegsuevenns teas Rede 295 Froid 4. Rovd, (0) Wis) 19 sisscsgceveccecisiosde sie 5. 4.8. 6:0.5 4 0 Sarena aia wedaage 46, 91, 306 Forsyth v. Rathbone, 34 Barb. 388............. Seis ee eessees sees 153 Fosdick v. Town of Hempstead, 125 N. Y. 581........... 0.00. cece 94 Fountain v. Ravenel, 17 How. (U. S.), 869. ........ 0. cece eee eens 250° Fowler v. Depau, 26 Barb. 224. ....... wccccc eee cece ee eee secee 274, 275. Fowler v. Ingersoll, 19 N. Y. St. Rep. 214........... 0... eee e eee 67 Fox, Matter of, 52 N. Y. 580....... cece ccc cece eee ene ee cece 255, 256 Fraser v. McNaughton, 58 Hun, 80............. 0c cece ec eee seer eee 268 Fraser v. Trustees, 124 N. Y¥. 479... 0... ccc eee cc eee ene ns cee 268 Frazer, Matter of Accounting of, 92 N. Y.239..................-005 98 French, Matter of, 52 Hun, 808.............cccccccccccescerccenece 292 Fuller, Will of, 75 Wis. 481... 0.0... cece cece cece eee c ee etencee 250 Fuller 0. Winthrop, 3 Allen, 51.......... 0... c ccc eee ccc eceeccceeaes 284 Gage v. Gage, 48 Hun, 501..... 0... cece cece teers 109, 115, 195: Garnsey v. Mundy, 24.N. J. Eq. 248......... ccc cece ecee eee veeeeee 96 Garrett v. Scouten, 3 Den. 884....... 0... cece cece ee cece ec ce eee 37 Garthshore v. Chalie, 10 Ves. 1.0.00... 0. cece cece cc ec ee eceeucece 231 Garvey v. McDevitt, 72 N. Y. 556............ 0... 43, 44, 188, 161, 166, 174 Gehrig, Matter of, 44 Alb. L. J. 108. See Huss, Matter of. Genet v. Beekman, 45 Barb. 882........... cece cece cece ecece cece 101 Genet ». Hunt, 113 N. Y. 158.....45, 71, 98, 99, 176, 208, 247, 246, 247, a74 TABLE OF CASES. XXVii [The references are to the pages.] George, Matter of, 28 Abb. N.C. 48.........ccc cece ceeseeeeeeueees 248 Gerard 0. McCormack, 29 N. Y. St. Rep. 709.........cccceccecueeee 243 German Land Association v. Scholler, 10 Minn. 381................. 259 Germond ». Jones, 2 Hill, 569.........ccccec ccc e ec eeeceeneeseeees 96, 292 Gibert v. Peteler, 88. N. Y.165..........0cc cc cece eeeee ceecceecees 82 Gibson v. Walker, 20 N. Y. 476 2.0... . cc cece ccc e eee cecucecceees 288 Gifford v. Rising, 51 Hun, 1.2.0.0... 00... cece ceeettee ec ee tenons ees 226 Gilbertson v. Richards, 6 H. & N, 458; aff’g 4H. &N. 277.......... 83 Gilman v. Gilman, 111 N. Y. 265.......0.. 00. c cee cece cee eee cee 98 Gilman v. Healy, 1 Dem. 404................... Satake ane 154, 156, 157 Gilman v. McArdle, 99 N. Y.451.........cccc ccc e cee ctcceceesecs 242,243 Gilman v. Reddington, 24 N. Y.9.......... 48, 185, 137, 188, 154, 191. 208, 210, 221, 228, 248, 246 Giraud v. Giraud, 58 How. Pr. 175....... 0... cece eee cece cence ee nes 67 Goebel v. Wolf, 118 N. Y. 405......... 154, 191, 208, 209, 210, 220, 221, 283 Goodell », Hibbard, 82 Mich. 47....... 0.00... cece eee ec eet ee ees 286, 289 Goodrich v. Milwaukee, 24 Wis. 422........ 0... cece eee eee ec ecees 89, 306 Goodtitle v, Whitby, 1 Burr. 228...........cccscceeceeeuecueeeecees 291 Goring v. Howard, 16 Sim. 395... 0... eke eee eee ee cree e ee 277 Gosling v. Gosling, Johnson (Eng.), 265............ cee ee eee 228, 228, 232 Gott v. Cook, 7 Pai. 521; aff'd 24 Wend. 641. ..56, 84, 95, 146, 151, 152, 246 Gould v. The Taylor Orphan Asylum, 46 Wis. 106................ 258, 306 Gourley v. Campbell, 66 N. Y. 169...... co.cc eee cece eee eee 268, 269 Graff ». Bonnett, 831 N. Y.9...... 101, 120, 121, 122, 128, 216, 217, 246, 247 Graham 2. Fountain, 2 N. Y. Supp. 598..... 20... . eee eee eee eee V7 Graham v. Houghtaling, 80 N. J. L. 558... 0.0... cee eee ee eee 39 Graham v. Livingston, 7 Hun. 11........ 0c cece cece eee rete eee _ 267 Grant v. Grant, 3 Y. GC. U1... ec ccc cee cece eect eeetnees 228, 232 Graves v. Deterling, 120 N. Y. 447... 0... 0. csc ccc sete cence cece eeeeee 87 Gray v. Blanchard, 8 Pick 284...... 0.0... ccc ee eee te cece eee e en eeees 81 Greene 0. Greene, 125 N. Y. 506.....-..... cece eee ee eee 86, 94, 95, 108, 273 Greenland » Waddell, 116 N. Y. 234....48, 60, 165, 191, 216, 217, 220, 266, 267, 269 Greete: Greet, 5 Béav; 128: edcinsswawasens daa s tanduwissdvedeaeienw es 224 Greyston v. Clark, 41 Hun, 125......... 00sec cece eee e cee eee eens 292 Griffen v. Ford, 1 Bosw. 128..........cee scenes 58, 54, 84, 89, 91, 144, 226 Griffin ». Shepard, 124. N. Y. 70. ...... ese cece eee e ec cee n eee ee en ees 42 Grifflths'o:- VieFG\ 9. V 6S. 128 casei écclacesescecasaesaneidsauess enaye deta denne eoobdiere 56 Groesbeck v. Seeley, 13 Mich. 845......... ccc e cece cee e eee ence ees 94 Grout v. Van Schoonhoven, 1 Sandf. Ch. 386....... ..........66. 217, 272. Guernsey v. Guernsey, 86 N.Y. 267..... 0.00. cece e eect ec eee eee 288 Guggenheimer v. Sullivan, 12 N. Y. Week. Dig. 4d. Soke ceenowseaee 62, XXViii TABLE OF CASES. [The references are to the pages.] Hagerty v. Hagerty, 9 Hun, 175......... 0. cece eee ee cee eee 89, 248 Hale v. Hale, 3 Ch. D. 648 ..............0065 DASNY ia kt te dees 54 Ham v. Van Orden, 84 N. Y. 257... 0. cece eee e ee eee 42, 49, '77, 216, 218 Hancock v. Horton, 7 Ves. 508......... cc ccc cere eee ee teen eee 189 Hannon 2. Osborn, 4 Pai. 886. ...... 6. cece ee ee eee wee 89, 56, 184, 185 Hanson v. Graham, 6 Ves. Jr. 289... .. 00... ce eee e eee beens 284 Harris v. Am. Bible Soc’y, 2 Abb. Ct. App. Dec. 816.........2--.05- 262 Harris v. Clark, 7 N. Y. 242... cc. eee ee eee eee 83, 152, 158, 268, 271, 272 oarrig ed: Bly 7 Pais Ad oe seco scsiacal a ws aopad ideas chains auace asics oapies ecciaas ei 226 Harris v. Strodl, 32 N. Y. St. Rep. 1090...............0 cee eee eee eee 287 Harrison v. Harrison, 86 N. Y. 548......... 0.0.2.2 000s 127, 187, 188, 272 Hartung v. Witte, 59 Wis. 285............ tts ate eh Sta od Se 85 Hatch v. Bassett, 52 N.Y. 859... 6... cc cee cee eee ct cette ecees 216, 266 Hathaway v. Hathaway, 37 Hun, 265......... 0. cece cee eee ewes 94, 95 Hawley v. James, 16 Wend. 61....45, 52, 55, 56, 60, 67, 74, 88, 89, 97, 138, 189, 141, 144, 157, 168, 174, 177, 273 Hawley v. James, 5 Pai. 318; (see 16 Wend. 61)..................4 45, 186 Hawley oe: James, Pal 218 000ccsiea mma tees ie .asd ad aewad wae ¢« 295 Haxtun v. Corse, 2 Barb. Ch. 506.......-...... 0045: 185, 148, 151, 216, 272 Haynes v. Sherman, 117 N. Y. 433..... 46, 49, 56, 58, 77, 101, 179, 218, oa Heard ». Horton, 1 Den. 165 2... .. ee ec ccc cee eee cee eee 21 Heath v. Hewitt, 27 N. E. Rep. 959.02. 1. cece cee cee 21 Hedger, Estate of, 6 N. Y. Supp. 769; aff'd 9 N. Y. Supp. 847....... 221 Heermans 2. Burt, 78 N. Y. 259... 0. cc ce cece cence et en eee 147 Heermans v. Robertson, 64 N. Y. 382............. 0c. cece 46, 96, 167, 180 Heiss v. Murphey, 40 Wis. 276........ ceecec cee cece ecw eet eae 90 Helck v. Reinheimer, 105 N. Y. 470..............000. Heidi givie aiafew tei es 9, 89 Henderson ». Henderson, 113 N. Y. 1....47, 55, 56, 67, 92, 95, 96, 147, 161, 168, 178, 241, 272 Hennessy v. Patterson, 85 N. Y. 91...... 10, 32, 38, 84, 35, 36, 42, 49, 76, 77, 205 Herrick, Matter of, 32 N. Y. St. Rep. 1082........ ...0. ee. cece eee 95, 272 Hetzel v. Barber, 69 N.Y. 1............00008 Sees sewed waccas 165, 167, 269 Hills v. Miller, 3 Pai. 254.2... 0... ccc ccc cece eee es eueeence 2. §=6©85 Hillyer v. Vandewater, 24 N. E. Rep. 999; 121 N. Y. 681... ........ 127 Hilton v. Hilton, L. R. 14 Eq. 468...........6.0 cece eee cece eee 228, 232 Hobson »v. Hale, 95 N. Y. 588....... 45, 46, 67, 146, 158, 179, 191, 205. 237, 268, 269, 295 ‘Hogan v. Curtin, 88 N. Y. 162...... 0.0... cee ccc cece eee c ec eee 37 Holland v. Alcock, 108 N. Y. 312................0.., 94, 249, 250, 251, 256 Hollis v. Drew Theo. Sem., 95 N. Y. 166............ 00.00.0000... 262, 263 Holmes o. Mead, 52 N. Y. 332... . .249, 250, 252, 253, 256, 260, 261, 271, 272, 273 TABLE OF CASES. Xxix [The references are to the pages.] Hone’s Ex’rs v. Van Schaick, 7 Pai. 221; aff'd 20 Wend. 564......... 217 Hone’s Ex’rs v. Van Schaick, 20 Wend. 564.......... 67, 105, 175, 176, 177 Hood v. Hood, 85 N.Y. 561... cee ccc eee tee eee ence tenets 266 Hopper v. Demarest, 1 Zabr. 625 2.0... . cece ce cc eee cece eens 13 Horner v. C., M. & St. P. R. Co., 88 Wis. 165..... 0... ccc cece ee ees 81, 82. Horton ». Cantwell, 108 N.Y. 255....... ccc eee e cece eee een ees 158, 246 Hotchkiss o. Elting, 36 Barb. 88........... 0c: ccs eee cee ener ee enone 95 House v. Jackson, 50 N. ¥. 161... 0 eee eee cece eee een enee 23 27 House v. McCormick, 57 N.Y. 810... Leccec cece ee cee eee e eens 23 Howard v. Moot, 64. N. Y. 262... ... ccc ccc cc cee cee ene eevee enees 99 Howe, Matter of, 1 Pai. 214....... De Shaye 4-¥aN 14 SOE Ree REE ON VES 260 Howell v. Mills, 56 N. Y. 226. ...... 0... ccc eee c ee en ec en cece eeeneee 38 Howell o. Mills, 7 Lans. 193; aff'd 56 N. Y. 226................-005: 38 Hoyt, Matter of, 32 N. Y. St. Rep. 787....... 0... eee e eee ee eee 152, 158, 271 Hubbard ». Sharp, 11 N. Y. St. Rep. 802.......... .. eee eee ee eee 93 Hunter v. Hunter, 31 Barb. 884. ...... 00... cc cee cen e tte eee eeeeee 109° Hunter v. Hunter, 17 Barb. 25........... css cece eens 45, 68, 84, 146, 226 Hull; Bull 24. Ne Ve G40 ox cea eve deca ceeds aa vek et sda ds eidseday 152, 154 Huss, Matter of, 126 N.Y. 587... 0.00... c ec cece eee cece anes 251, 296, 801 Hutton v. Benkard, 92 N. Y. 295....... cece cece ee eee eee ee: 164, 216, 248 Ibbetson ». Ibbetson, 10 Sim. 495; aff'd 5 M. & C. 26................ 56 Jackson v Jansen, 6 JObN. 78... 6... cece cee ce ete ee eee e ee eeeeeee 167° Jackson ». Littel, 56 N.Y. 108.0... 0... ccc ccc cee een eee eenee 23 Jackson v. Martin, 18 Johns. 31. ..... 0... cece cere teen nee 292 Jackson v. Sheridan, 50 N. Y. 660.......... ccc cece ee ere eee ne eee eee 23 Jacob’s Will, Re, 29 Beav. 402. ...... ccc cece e ce cee eee eee e ee enees 228, 232 Jansen v. Cairns, 3 Barb. Ch. 850....... 0.00 cece eee eeere eens 215, 216 James v. Beasley, 14 Hun, 520. ......... cece eee eee ee eres 61, 62, 63, 272. Jarvis v. Babcock, 5 Barb. 189....... 0.00. eee cec cere cee cere eens 95 Jeefers ». Lampson, 10 Ohio St. 101... . 00... cece eee eee eee ee eee 13 Jennings v. Jennings, 7 N. Y. 547..... Pisicts arate ahaa Lia A gins Sia tots 61, 67, 271 Johnson v. Cornwall, 26 Hun, 499; aff’d 91 N. Y. 660............66. 146 Johnston v. Spicer, 107 N. Y. 185....... 6. cece cee e ne cece eee e eee ees 93 Jones, Estate of, 15 Civ, Pr. R. 45... .. cc cece ec cee eee ee eee eee eens 226 Jones, Estate of, 10 N. Y. St. Rep. 176... .....ccec ee cee eee eee ene 246 Jones v. Jones, 66 Wis. 810... ce cee cee ce eee ee net ete ec eeeeete 20, 292 Josselyn v. Josselyn, 9 Sim. 63.......eeeee eee cece eee e eee e eens 228, 232 Kane ». Gott, 24 Wend. 641...... 0. ccc cece cece tenn eee 74, 217, 266, 273 Karr v. Washburn, 56 Wis. 308........0e ese e cece po vee stad vous oars 93 xxx TABLE OF CASES. [The references are to the pages.] Kelemen, Matter of, 57 Hun, 165........... ccc ccc eee cece cere teens 90 Rellyoeeellg: 61 BW, VAT, oy2c2ckesrcdcerns yeaeooonmeseoss 287 Kelso v. Lorillard, 85 N. Y.177. 0... cece cse cece eee ee eens 188, 17, 274, 288 Kennedy v. Hoy, 105 N. ¥. 184... ... ccc cece ccs e cece eee eee QTL, 272, 278 Kennedy 2. Porter, 109 N. Y. 526....... 0... cee ee ee eee eee eee eens 242 Kennedy v. Town of Palmer, 1 T. & C. 581.........6. sere eee eee 296, 301 Kenyon v See, 94 N.Y. 568. ... cece cece c ee eee e eee eee ne ees 37, 194 Kerr v. Bryan, 82 Hun, 51....... 0.0 ccc cence cee eee e teeter ens 287 Kerr v. Dougherty, 79 N. Y. 827. 0... cc ccc ce cece eee e eee eee eee 263 Kiah v. Grenier, 56 N. VY. 220. ...... cece ee ce eee tte e eee eens 148, 274 Killam v. Allen, 52 Barb. 605............-. ccc ee eee eee 67, 146, 272, 273 Kilpatrick », Barron, 54 Hun, 322; aff'd 125 N. Y. 751............ 77, 165 Kilpatrick 0. Johnson, 15 N. Y. 822....... cece eens 151, 152, 159, 246, 271 Kilroy v. Wood, 42 Hun, 686....... wc cece eee ees Gikiiite de em nave 101 King v. Rundle, 15 Barb. 189... 0... cece cece eee eens 152, 158, 256 Kinnan 0. Card, 4 Den. 156......... cc cece cee c ern e er ween scat renee 241 Kip ». Hirsch, 108 N. Y. 565... 0.0... ccc eee cece ere ween ec eeeee 97, 147 Kittell v. Osborn, 4 T. & C. 45... ccc cece cece reer eter eeeeees 88 Knapp v. McGowan, 96 N.Y. 75.0.0... ccc cc cece cece eee eee eee 88 Knox v. Jones, 47 N. Y. 889.........ce ee ee ween 56, 105, 106, 271, 272, 295 Konvalinka v. Schlegel, 104 N. Y.125....... ccc cece eee eee eee 98 L’Amoureaux v. Van Rensselaer, 1 Barb. Ch. 34. ........ cee eeeeees 91 Landers v. Bartle, 29 Hun, 170.......... Bislsg tee e ee nid aeah ae 221 Lane v. Brown, 20 Hun, 882............ ccc cence ee cence ecseeceees 117 Lang v. Ropke, 5 Sandf. (S. C.), 368 ............. 58, 54, 58, 84, 89, 91, 143 Lang ¢. Wilbraham, 2 Duer, 171......... 00sec cece cece cent ce eeees 53 Lapham, Matter of, 87 Hun, 15................ 106, 117, 119, 122, 128, 182 Lawrence v. Bayard, 7 Pai. 70.2.2... ccc cece eee cece nce e ewes 28, 24, 25 Leake v. Robinson. 2 Mer. 863............. ccc ccccececcacese 220, 234 Leavitt 0. Wolcott, 95 N. Y. 212; reversing 63 How. Pr. 51........ 67, 195 Ledyard’s Appeal, 61 Mich. 625..........0...ccceceeeveeececeeces 90 Lee v. Lee, 2 How. Pr. (N.8.), T6...c ccc ccc ccc cen c ec cn cneeesecevacs 63 Lee v. Tower, 124 N. Y. 870... 2... ccc cee ccc cn cece eences 67, 149, 294 Leeming ». Sherratt, 2 Hare, 14..... 0... cece ccc etree seen ee eees 233 Lefevre v. Lefevre, 59 N. Y. 484. ...... 0. cee ccc cece cence eee eeees 263 Leggett v. Firth, 58 Hun, 152....... 0.0... cece eee ees eee eeee 292 Leggett v. Perkins, 2. N. ¥. 207............... cee ee ba eieietarint einai 95, 148 Lent v. Howard, 89 N. Y.169....... 0. ccc cece ccc cee ee 246, 267, 268 Leonard v. Bell, 1 T. & C. 608; aff’d 58 N. Y. 676.............0.... 258 Leonard v. Burr, 18 N. Y. 96...........ccc ec eeeee 38, 74, 78, 80, 185, 258 Levy ». Bull, 47 Hun, 850. .... 6... cece cece cece e eee ence eececees 101 TABLE OF CASES. XXxi [The references are to the pages.] Levy v. Levy, 88 N. Y. 97... .... ccc cece ene ees 67, 250, 256, 271, 272 Little 0. Wilford, 31 Minn. 178......... 0... ccc cece ec ceeeceeeees 259, 304 Littlejohns v. Household, 21 Beav. 29............cce cc cece ance ences 18 Livingston, Matter of, 834 N.Y. 555...... 0... ccc cee ce ccc cece ne eees 90 Livingston v, Greene, 52 N. Y. 118. .........c ccc cece e cece aces 287, 291 Livingston v. Tucker, 107 N. Y. 549.......... ccc cece eee e eee cenees 72, 158 Locke v. Mabbett, 3 Abb. Ct. Ap. Dec. 68........ cece cece eee ee eee 101 Lockman v. Reilly, 29 Hun, 4384; reversed 95 N.. Y. 64.............06 24 Loder v. Hatfield, 71 N. Y.92 2.0... . ccc cece eee cece eee e ween a eene 226 Longhead ». Phelps, 2 Wm. Bl. '704.......... 0c c cece cece e eee eens 277 Lorillard v. Coster, 5 Pai. 172; reversed 14 Wend. 265......... 74, 124, 130 Lorillard 0. Coster, 14 Wend. 265........... cc cece cece ete eee 4 Lougheed ». Dykeman’s Baptist Church, 58 Hun, 364............... 239 Lovett v. Gillender, 35 N. Y. 617. ........ cc cece cece tacecucees 236, 292 McArthur v. Gordon, 51 Hun, 511; aff'd 126 N. Y. 597.............. 101 McArthur v. Gordon, 126 N. Y. 597; s. c. 27 N. E. Rep. 1083........ 93 McArthur »v. Scott, 1138 U.S. 840... cee eee ene eee eee 54 McCaffrey, Matter of, 50 Hun, 371.......... cece cece eee ees 148, 161 McClyment, Matter of, 16 Abb. N. CO. 262....... ccc eee e eee e eee eee 221 McComb, Matter of, 117 N. Y. 878 2... ccc cece ccc ee eee eens 268 McCormack ». McCormack, 60 How. Pr. 196..............005000- 152, 153 McCosker v. Brady, 1 Barb. Ch. 329; aff'd 3 Den. 610............... 68 M’Donald v. Walgrove, 1 Sandf. Ch. 274.......0ccseeeeeseeeeeeeees 273 McGowan v. McGowan, 2 Duer, 57........... eee eee eee eee 84, 146, 226 McGrath v. Van Stavoren, 8 Daly, 454....-.... cc cece cece eee e eee 246 McGraw, Matter of, 111 N. Y¥. 66......... 0c cece ee cee eee ees 250, 256, 267 McKinstry v. Sanders, 2 T. & C. 181; aff'd 58 N. Y. 662............. 180 McSorley v. Leary, 4 Sandf. Ch. 414.0... .. cece ese e cece eee eee eneee 67 McSorley v. Wilson, 4 Sandf. Ch. 515... 0... cece eee e cece ewer enes 56 Maben, Matter of, 32 N. Y. St. Rep. 790... ...... cece ce cece ence eens 288 Mabie v. Bailey, 95 N. Y. 206. ....... cece cece cece cece eee eee tence 243 Macy v. Williams, 55 Hun, 489; aff'd 125 N. Y. 767.........-...---- 243 Mahan, Matter of, 98 N. Y. 372. ........ cecessese sect ener eeees 221, 235, 241 Mandelbaum v. McDonell, 29 Mich. 78..............0ceeee- 82, 85, 86, 167 Manice v. Manice, 48 N. Y. 303... .38, 48, 95, 96, 97, 101, 106, 108, 112, 185, 151, 152, 158, 158, 168, 186, 191, 216, 231, 233, 236, 240, 241, 242, 245, 261, 272, 299, 301 Mapes v. American &c. Missionary Society, 38 Hun, 360............. 301 Marie v. Garrison, 18 Abb. N. C. 210... .... 0c cece cee ee cence enene 242 Marsh v. Wheeler, 2 Edw. Ch. 156....... 0... cece cece eee cence eceee 226 Martin ». Funk, 75 N. Y. 184. .... 0... cc eee ce een ene ee een eee 243 Marvin v. Smith, 56 Barb. 600; aff'd 46 N. Y. 571 .........-. seas 96 Xxxil TABLE OF CASES. [The references are to the pages.] Marx v. McGlynn, 88 N. Y. 857......-. . oe eee 95, 98, 99, 148, 260, 262 Mason, Matter of, 98 N. Y. 527... . 6. ccc ccc cece eee nee eet 108 Mason ». Jones, 2 Barb. 229; aff'd, see 2.N. Y. 827 and 3 N. Y. 875... ..63, 84, 105, 126 Mason v. Mason’s Ex’rs, 2 Sandf. Ch. 482; aff’d 2 Barb. 229...... 101, 106, 109, 151, 158 Matteson v, Armstrong, 11 Hun, 245....... 0... cc. cece cece eee eee 168. Matteson v. Matteson, 51 How, Pr. 276.......... cee ce reece eens 68. Maurice v. Graham, 8 Pai. 483...... 00.0... cee cee cece cence eens 84. Mayor, we. of N. Y., Matter of, 55 Hun, 204........... 0... cece eee 258 Mead v. Maben, 14.N. Y. Supp. 782....... ccc eee ecw tee e eens 288. Mead, Matter of, 27 N. Y. St. Rep. 36 22.0.0... cc cece cece eee 55 Mead ». Mitchell, 17 N. Y.210..... 0... 0. ec ee ee ee eee een ee wees 24, 25 Meserole v. Meserole, 1 Hun, 66.......... 0. cee cece cece renee 105, 106, 110 Meyer v. Cahen, 111 N. Y. 270 ..... ccc cece cece eect eee eee we renes 221 Miles v. Harford, 12 Ch. D. 691. ...... 0... cece cece e eee ee eee nee 277 Miller v. Emans, 19 N.Y. 884......... cece ee cee cece ae ence eee 44, 80, 83 Miller v. McBlain, 98 N. Y. 517... 0... ccc cece ce eee eee eee 287, 288 Miller ». Macomb, 26 Wend. 229. ..........0026 cee veeeeeees 39, 287, 292 Miller v. Wright, 109 N. Y. 194. ...... ccc cceceeee eee eee eee eens 268 Mills v. Evansville Seminary, 58 Wis. 185.2... 2... cece ee eee 82 Monarque v. Monarque, 80 N. Y. 820... 0... 0... cee eee ce eee eens 39 Moncrief v. Ross, 50 N. Y. 481...... 0... ccc cece cece cece ener ene 266 Montgomery ». Merrill, 18 Mich. 338.......... 0c. e eee eee ee ener eee 97 Monypenny ». Dering, 16 M. & W. 418..........eececceeeeeeeeees Q77 Moore v. Appleby, 108 N. Y. 287... 0... ccc cece eee cece ee eee 212 Moore v. Appleby, 36 Hun, 368; aff'd 108 N. Y. 287...... 90, 100, 210, 211, 212, 214 Moore v. Hegeman, 72 N. Y. 376............ 0.00005 104, 106, 110, 111, 148 Moore v. Littel, 41 N. Y. 66......... 20, 28, 24, 26, 27, 29, 31, 32, 33, 34, 35, 36, 77 Moore »v. Lyons, 25 Wend. 119... cece ee cect ewe eee ee ees 287, 291 Moore v. Moore, 47 Barb. 257; aff'd 6 Alb. L. J. 173................. 67, 70 Morgan v. Masterton, 4 Sandf. 442...... 00... ccc cee eee e eee ee 67, 273 Morris o. Porter, 52 How. Pr. 1... .... ccc cece cece ence ecees 203 Morse v. Morse, 85 N. Y. 58........ 0... cece cece eevee euuveenee 89, 95: Mott », Ackerman, 92 N. Y. 589 ... 22.200... 48, 50,100, 115, 176, 192, 196 Murray v. Charlick, 28 N. Y. Week. Dig. 568.......... 00.0... 00.000 271 Mut. Life Ins. Co. of N. Y. v. Shipman, 108 N. Y.19............... 161 Nearpass v. Newman, 106 N. Y. 47.0.0... . cece ccc cece ce ccc ccceee 93 Neaves v. Neaves. 37 Hun, 488......... 00.0... c cece cece cece aes 61 Nellis v. Nellis, 99 N. Y. 505................0.00, 10, 49, 205, 288, 290, 292 Newkerk v. Newkerk, 2 Cai. 845.......... 0... cece ccc ce eee eens 36, 83 TABLE OF CASES. XxXxiii [The references are to the pages.] Newton 0. Sly, 15 Mich. 896... 0.0.0... 0... cc ccc ceee ce cee cee eusees 94 N. Y. Dry Dock Co. v. Stillman, 80 N. Y¥.174..........0.0 0000 eeaee 89, 90 N. Y. Institution for the Blind v. How’s Ex’rs, 10 N. Y. 84........ 94, 261 N.Y., L. & W. R. Co., Matter of, 105 N. Y. 89.............085 43, 287, 288 Nicoll o. N. Y. & E. R. Co., 12 N. Y.121..............0000 eit 37, 81, 82 Nicoll », Walworth, 4 Den. 885........ 0.0.00 ccc ccc cee cece enauees 97, 100 Norris v. Beyea, 18 N. Y. 278..0... 0000 cece cece cece ceeceseceeees 42, 218 Noyes v. Blakeman, 6 N. Y. 567...........0cccc cee eeeeuee eae bakes 99 O’Brien v. Wetherell, 14 Hun, 616... 0.0.0.0... cc cece cece eee e eee eee 81 Odell ». Youngs, 64 How. Pr. 56............ 4 alates nhep tie eseie EE ete Natrece 538, 54 Ogsbury v. Ogsbury, 115 N. Y. 290....... 0.0 cece ccc cece ce teen eee 266 O’Hara, Matter of Will of, 95 N. Y. 408. ......0. 0.0... 0 ccc cee eee ee 90 O’Hara v. Dudley, 14 Abb. N. ©. 71.0.0... 0c ce cece eee eee eens 256 Olney 2. Hull, 21 Pick. '311 5 ociwsiedwiaisna dae ietenpvaeewas ees ERE 13 Orphan Asylum v. White, 6 Dem. 201....... 0.0... cee cece cere eee 96 Owens v. The Missionary Soc’y, &c,, 14 N. Y. 880........2...e000 eee 260 Oxley v. Lane, 35 N. Y. 340.......... 00.0 cece eee 63, 58, 68, 112, 231, 232, 272, 292 Palmer v. Dunham, 52 Hun, 468; aff’d 125 N. Y. 68................ 221 Palms v. Palms, 68 Mich. 355...........0.. 0.00 c ee eee 46, 110, 149, 271, 304 Parker ». Linden, 118 N. Y. 28......... slbteca stale’ a. atten case Staite -...-268, 269 Parmelee v. The 0. & 8. R. R. Co., 6 N.Y. 74..... 000. c cece es 36 Patten ». Chamberlain, 44 Mich. 5........... 0.0 ce cee eee e eee eens 94 Patterson v. Ellis, 11 Wend. 259.......... 00. cece ee ee ee ere eee eee 233 Patterson v. McCunn, 14.N. Y. St. Rep. 885........... 0... cece ee eee 240 Pearse v. Killian, McMull. Eq. 281............. 0. cece cece cence eee 80 Peck v. Sherwood, 56 N. Y. 615... 2... 2... cece cee ce eee cree eres 100 People ex rel. Short v. Bacon, 99 N.Y. 275 20... cece cee eee 88, 147 People v. Simonson, 28 N. Y. St. Rep. 97; 8. c. 43 Alb. L. J. 475..... 258 Persons v. Snook, 40 Barb. 144..... 0... cece eee eee e tenn ee eee 67, 96, 98 Phelps’ Ex’r v. Pond, 23 N. Y. 69....67, 68, 69, 70, 157, 158, 235, 258, ae Phillips o. Davies, 92 N. Y.199.......... csc e eee cee en cence eee 107, 162 Phillips v. Phillips, 112 N.Y. 197.00... . cece eee c erence eee nee 95 Philson v. Moore, 28 Hun, 158........... ccc cece eee eee e eee eees 259 Phipard »v. Phipard, 55 Hun, 488. ....... 6: cece estes eee ee eee eee ees 242 Pierce, Matter of, 56 Wis. 560........ 00... e eee cee eee n een e eens 226 Pierson v. Drexel, 11 Abb. N.C. 150........c0. ccc eee eee nee eee eee 242 Plumb v. Tubbs, 41 N. V. 442... 2... ccc ec cee cee cece eee renee enee 81 Plymouth Soc’y of Milford ». Hepburn, BY Hun, 1616066 60s o's oases ss 239 Post v. Hover, 38 N. Y. 598.........ceeeeeee 95, 96, 127, 171, 272, 278, 293 Cc XXxiv TABLE OF CASES. {The references are to the pages.] Post'o.Weil, (15 NG Ys 86 lesen ceive wviseaieedagaaamereaueadsc« 37 Potter v. McAlpine, 3 Dem. 108......... cece cece eee cece eee eens 159 Power v. Cassidy, 79 N. Y. 602... 0... ccc cece cece ee eee eee eee 94, 268 Powers v. Powers, 28 Wis. 659......... 0c c coe cece eee ete eee 226 Pratt v. Ayer, 3 Pinney (Wis.), 286...... 0.0... ce cee ec eee eee ee eee 93 Pray v. Hegeman, 92 N. Y. 508.......... 00... .00 es 110, 152, 154, 159, 246 Prentice v. Janssen, 79 N.Y. 478 2.0.0... ce eee eee 165, 269 ‘Pricé-e: Hall, Ti. Re Gig. 899. 2. A future estate, is an estate limited to commence in possession ata future day, either without the intervention of a precedent estate, or on the determination, by lapse of time or otherwise, of a precedent estate created at the same time ;° one class uf these future estates, namely, those which are dependent on a precedent estate, may be termed remainders ;* all future estates are either ‘1 R. 8. 722,82; Mich. G.S. $5518; Minn. G.S. § 3958; Wis. A. 8. . ef R. 8. 722,85; Mich. GS. $5521; Minn. G.S. § 3951; Wis. AS, “oe R. 8. 722, §7; Mich. GS. $5523; Minn, GS. § 3960; Wis. A. S. ’ Te 8. 728, § 8; Mich. G. 8. $5524; Minn.G.S. $3961-2: Wis. A.S. : ik S. 728, §9; Mich. G. S. § 5525; Minn. G.S. § 3967; Wis. A. 8. Pag S, 723, §10; Mich. G. S. $5526; Minn. G. 8, $8968; Wis. A. 8. ak S. 728, § 11; Mich. G. §.$5527; Minn. G.8. $3977; Wis. A.S. §11.] ESTATES UNDER REVISED STATUTES. 7 vested or contingent.! All expectant estates are de- scendible, devisable and alienable.’ $11. Thus the Revised Statutes have effected a change, by bringing remainders and executory devises all together in one class, under the common name of “future estates,” and that it is no longer necessary that any future estate, whether created by deed or will, be supported by a precedent estate, in which case the prior estate remaining in the grantor or the heirs of the devisor, is termed the intermediate estate. The pre- mature failure of a precedent estate no longer destroys a remainder, for the Revised Statutes provide that “no expectant estate can be defeated or barred by any alienation or other act of the owner of the inter- mediate or precedent estate, nor by any destruction of such precedent estate by disseisin, forfeiture, sur- render, merger, or otherwise,’’* unless the party creat- ing the future estate shall have provided for or au- thorized its destruction in any manner or by any means.’ Nor does the mere natural expiration of the precedent estate before the remainder is ready to vest, destroy the latter, for “no remainder valid in its crea- tion, shall be defeated by the determination of the pre- cedent estate before the happening of the contingency on which the remainder is limited to take effect; but should such contingency afterwards happen, the remain- der shall take effect, in the same manner and to the same extent, as if the precedent estate had continued 14 BR. S. 723, §18; Mich. G. 8. $5529; Minn. G.S. $3969; Wis. A. S. § 2087. 21B. 9. 725, § 85; Mich. G. S. $5551; Minn. G.S. $3964; Wis. A.S. § 2059. 21 R. 8.725, § 32; Mich G. 8. § 5548; Minn. G. S. § 3965; Wis. A. 8. § 2056, 41 RB. 8. 725, § 33; Mich. G. S. § 5549; Minn. G. S. § 3966; Wis. A. 8. § 2057. 8 INTRODUCTORY. [CH. I. to the same period.”! The future estates thus pro- vided for, have also supplanted future estates created by way of springing and shifting uses.’ $12. Itis of special importance to notice, that al- though it is thus no longer requisite that any future estate be supported by a precedent estate, it still con- tinues true that unless there is a precedent estate granted or devised, the future estate is not entitled to the name ‘‘remainder.’® As we have seen, the statute provides that ‘‘where a future estate is de- pendent ona precedent estate, it may be termed a re- mainder, and may be created and transferred by that name.’ When the statutes themselves, therefore, re- fer to ‘‘remainders,” they mean future estates de- pendent on precedent estates. In addition to the changes already mentioned, the Revised Statutes fur- ther provide that a remainder of a freebold or chat- tel real, either contingent or vested, may be created ex- pectant on the determination of a term of years, and also that a fee may be limited on a fee.® § 13. The statutory changes which have now been referred to, are the only ones to which attention need here be called. Others will be taken up later as occa- sion for their statement may arise. We will now pro- ceed to consider the distinction between vested and contingent future estates ; and as some doubt has been VLR. S. 725, § 84; Mich. G. S. § 5550; Minn. G. 8, § 3989; Wis. A. S. § 2058. 2 See ante, § 7. 3 Dana v. Murray, 122 N. Y. 604 (616, 617). 41.58. 723, § 11; Mich. G. 8. § 5527; Minn. G. S. § 8977; Wis. A. S. § 2085. 51R.S. 724,§ 24; Dodge v. Stevens, 94 N. Y. 209; see Mich. G. S. § 5536; see Minn. G. 8. § 3986; see Wis. A. S. § 2044; as to limitation of a fee on a fee, see Wis. A. S. § 2040; Minn. G. 8. § 3985; and Mich. G. S. § 5582. §14.] VESTED AND CONTINGENT REMAINDERS. ‘9 thrown on the identity of the present distinction with that recognized at the common law, and as the matter is one of great importance, it is necessary to examine the subject in some little detail. 3. Vested and Contingent Remainders at Common Law. § 14. The word vested is employed in several senses : 1. An estate is vested in possession, when there is an immediate right of present enjoyment. Thus if a present estate for life, or in fee, be devised to A, he takes, immediately upon testator’s death, a vested es- tate in possession. When used in this sense, the term ‘vested estate’ is synonymous with the statutory term ‘estate in possession.” 2. An estate is vested in interest, when there is a pres- ent fixed right of future enjoyment. Thus, if an estate be devised to A for life, remainder to B in fee, here the remainder vests in interest in B.1. The meaning of this statement will be fully discussed hereafter. 3. There may be a vested right to a future contingent estate. For when the contingency is due only to the uncertainty of the event, but the person is certain in whom, or whose heirs as such, the contingent estate will certainly vest in interest, if it ever does vest at all, his right is said to be a vested right. Thus if a future es- tate be devised in the following terms: ‘‘Should A die without leaving any issue, then to B and his heirs,” here, during the life of A, the remainder to B is contin- gent. Butits contingent nature results from the un- certainty of A’s dying without issue, and not from any uncertainty about B’s right to the remainder, if A does die without issue. Consequently although the estate 1 For a case illustrating the vesting of a remainder, first in interest, and subsequently in possession, see Helck v. Reinheimer, 105 N. Y. 470 (475). 10 INTRODUCTORY. [CH. I. is contingent, the right is vested.’ If B dies before A, his vested right descends to his heirs, and if A then dies without issue, B’s heirs take the estate in possession. The subject of these vested rights will be taken up more fully, hereafter.’ § 15. When we speak of a vested remainder, we use the word in the second sense, as meaning vested in in- terest. As soon as it vests in possession it of course ceases to be a remainder at all. $16. In now taking up the subject of vested and contingent remainders at the common law, we find that vested remainders possess the following essential char- acteristics : 1. The precedent estate must be of such a character that it will terminate on the happening of an event sure to happen. 2. The precedent estate and the remainder must be of such a character that the former may possibly deter- mine before the latter expires, or is divested.* 3. There must be a remainderman in being and as- certained, in whom, or whose heirs as such,* the re- mainder is certain to vest in possession, unless it ex- pires, or is divested by the happening of some contin- gency subsequent,® before the precedent estate deter- mines. § 17. As to the second of these essentials it will be noticed that there is an element of uncertainty. For it ‘2 Washburn on Real Property (5th ed.),'775; Hennessy v. Patterson, 85 N. Y.91; Nellis v. Nellis, 99 N. Y. 505 (516). 2 Post, § V8 et seq. ° As to estates vested subject to being divested, see post, § 57 et seq. 4 Wimple 2. Fonda, 2 Johns. 288; Van Axte v. Fisher, 117 N. Y. 401. ° For an examination of contingencies precedent and subsequent, see post, § 58 et seg. §$19.] VESTED AND CONTINGENT REMAINDERS. 11 need not be certain that the precedent estate must end while the remainder continues in existence, but only that it may end within that time. So that here is a contingency all the time existing that may prevent for good and all any absolute vesting of the remainder in possession. But it consists in the danger that when the precedent estate comes to its end, the remainder may by that time have run through its own term and expired, or have been in some way cut off or put out of existence. If the limitations are such that the prece- dent estate may end, in any way, before the remainder expires, then the mere fact that it may outlast the re- mainder, does not render the remainder contingent. § 18. The third essential also calls attention to this same possibility of failure to actually vest in posses- sion. For in order that the remainder be vested it is not essential that the ascertained person in being should be certain of ever actually taking the remainder in possession, but only that he should certainly do so unless the remainder should in the meantime have al- ready run through its own natural course and expired, or else have been divested on the happening of a con- tingency subsequent. § 19. Thus, the natural expiration of a vested re- mainder before the precedent estate terminates, is il- lustrated in a conveyance to A for life, remainder to B for life. Here the remainder to B is only given to him for his own life, and if B should die during A’s life, it could of course never vest in possession. And yet it is a vested remainder. And the premature defeat of a vested remainder before the precedent estate termi- nates is illustrated in a devise to A for life, remainder to B in fee, but in case of B’s death before the remainder vests in possession, then over. The class to which this 12 INTRODUCTORY. (CH. I. illustration belongs, appears to constitute an exception to the principle embodied in other vested remainders. For here the condition is one which, if it happens at all, must happen before the remainder vests in posses- sion, and while an alternative remainder is still left ex- isting and outstanding ready to vest in others. If the condition ever takes effect, it must prevent the remain- derman from ever entering upon possession, and must substitute others in his place. However this may be, remainders of this class were considered as ‘‘ vested subject to being divested.”” This class will be further examined hereafter,’ but attention may now be called to the fact that there were two senses in which a re- mainder might be vested in interest, namely, it might be absolutely vested in interest, so that it was certain (unless it expired before the precedent estate ran out) to vest in possession in the ascertained remainderman or in his heirs as such; or it might be vested subject to being divested by the happening of a contingency subse- quent, before it ever vested in possession. § 20. Another illustration appears in the case of a devise to a class which vested in interest, ‘subject to open” until vested in possession, and let in new mem- bers of the class, as, a devise to A for life, remainder to the children of B. Here B’s children, during A’s life, have a vested remainder, but as other children are born to B during A’s life, it opens and lets them in, and the children in whom it was originally vested are there- by divested pro tanto.” § 21. This being the principle applied to cases where the contingency must happen, if ever, before vesting in possession, the same rule of vesting applies with greater 1 Post, § 57 et seq. * Byrnes @, Stillwell, 103 N. Y. 453. § 23.] VESTED AND CONTINGENT REMAINDERS. 13 force and reason where the remainder is subject to be- ing divested by a contingency which may happen either before or after vesting in possession. Thus, a devise to A for life, remainder to B and his heirs, but if B dies unmarried, then to C and his heirs, gives B a vested re- mainder. The condition is one-which may not happen until after vesting in possession, and is held not to ren- der the remainder contingent.! § 22. In order to understand fully the bearing of the rule and of these illustrations, it is necessary to notice the common law principle well stated by Prof. Gray: “If the conditional element is incorporated into the description of, or the gift to the remainderman, then the remainder is contingent; but if, after words giving a vested interest, a clause is added divesting it, the re- mainder is vested. Thus, on a devise to A for life, re- mainder to his children, but if any child dies in the lifetime of A, his share to go to those who survive, the share of each child is vested subject to being divested by its death.?, But on a devise to A for life, remainder to such of his children as survive him, the remainder is contingent.” * § 23. Thus it appears that the possibility of never vesting in possession does not necessarily render a re- mainder contingent. The uncertainty which could ex- ist, however, in the case of a vested remainder, was not any uncertainty about.the person entitled to take in possession, at once upon the determination, either now 1 Gray, Rule against Perpetuities, §§ 102, 103. ° Gray, Rule against Perpetuities, § 108 (3); citing Littlejohns v. House- hold, 21 Beav. 29; Blanchard v. Blanchard, 1 All. 223; Jeefers v. Lamp- son, 10 Ohio St. 101. See Den d. Hopper v. Demarest, 1 Zabr. 525; 2 Zabr. 599. 3 Gray, Rule against Perpetuities, § 108; citing Price v. Hall, L. R. 5 Eq. 399; Olney v. Hull, 21 Pick. 311, and many other cases. 14 INTRODUCTORY. (CH. I. or at any time, of the precedent estate; nor was it any uncertainty that the event which should terminate the precedent estate must happen some time. Whenever there was any uncertainty whether a vested remainder would ever vest in possession, it was always and solely an uncertainty whether it would still be outstanding when the precedent estate should actually come to its end. The distinguishing characteristics, therefore, of a vested remainder'at common law, were that (subject always, and only, to its own lapse, or defeat, in the meantime) it was constantly capable, so long as it lasted, of at once taking effect in possession upon the termination of a precedent estate which must terminate on the happening of an event sure to happen some time, and which might terminate before the remainder itself should expire. Fearne sums up this doctrine in the following words: ‘In short, upon a careful attention to this sub- ject, we shall find, that wherever the preceding estate is limited, so as to determine on an event which cer- tainly must happen; and the remainder is so limited to @ person in esse, and ascertained that the precedent estate may, by any means, determine before the expira- tion of the estate limited in remainder, such remainder is vested. On the contrary, wherever the preceding estate * * * is limited so as to determine only an event which is uncertain, and may never happen; or wherever the remainder is limited to a person not in esse or not as- certained ; or wherever it is limited so as to require the concurrence of some dubious uncertain event, indepen- dent of the determination of the preceding estate and duration of the estate limited in remainder, to give it a capacity of taking effect; then the remainder is con- tingent.” ‘It may be proper to explain the distinction * Fearne, Contingent Remainders (10th ed.), Vol. I, p. 217. § 23.] VESTED AND CONTINGENT REMAINDERS. 15 betwixt that kind of uncertainty which makes a remain- der contingent, and an uncertainty of a different kind which appears to have been sometimes confounded with it; I mean the uncertainty of a remainder’s ever taking effect in possession. * * * For wherever there is a particular estate, the determination of which does not depend on any uncertain event, and a remainder is thereon absolutely limited to a person in esse and ascer- tained; in that case notwithstanding the nature and duration of the estate limited in remainder may be such as that it may not endure beyond the particular estate; and may therefore never take effect or vest in posses- sion, yet it is not a contingent but a vested remain- der.” ? ‘‘It is not the uncertainty of ever taking effect in possession that makes a remainder contingent, for to that every remainder for life * * * is and must be liable ; as the remainderman may die * * * before the death of the tenant for life.) The present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the posses- sion will become vacant before the estate limited in re- mainder determines, universally distinguishes a vested remainder from one that is contingent.”* ‘A vested remainder may be uncertain as well as a contingent re- mainder * * * but * * * itis only uncertain on account of the uncertainty of its duration in relation to the duration of the particular estate. No condition is to be fulfilled, no event to happen, before the right of future possession or enjoyment can be perfect ; nothing 1 Fearne, Contingent Remainders (10th ed.), 215-16. 2 S§o where there is a vested remainder in fee, the remainderman him- self may die before the termination of the precedent estate. But in that case his heirs take through him. The existence of this possibility does not interfere with the vested nature of the remainder. Van Axte v. Fisher, 117 N. Y. 401. 3 Fearne, Contingent Remainders, 215-16. 16 ’ INTRODUCTORY. (CH. I. is wanting to render the capacity of possession or en- joyment complete. * * * A vested remainder is sure ultimately to take effect in possession or enjoy- ment, if only it endures beyond the preceding estate.”* And Mr. Williams says: ‘‘If any estate, be it ever so small, is always ready, from its commencement to its end, to come into possession the moment the prior estates, be they what they may, happen to determine, it is then a vested remainder. * * * It would be an estate in possession were it not that other estates have a prior claim; and their priority alone postpones, or perhaps may entirely prevent, possession being taken by the remainderman. The gift is immediate; but the enjoyment must necessarily depend on the determina- tion of the estates of those who have a prior right to the possession.”? ‘‘As distinguished from a vested re- mainder,” a contingent remainder ‘‘is an estate in re- mainder, which is not ready, from its commencement to its end, to come into possession at any moment when the prior estates may happen to determine.”* The rea- son why the different classes of contingent remainders are not ready to vest in possession, is seen from Black- stone’s familiar definition, in which he says: “ Contin- gent or executory remainders (whereby no present in- terest passes), are where the estate in remainder is lim- ited to take effect, either to a dubious and uncertain person, or upon a dubious and uncertain event.” 4 § 24. It has already been stated that if a remainder is vested, there must be a remainderman in esse, and as- certained. But to fulfill this requirement he must an- 1 «An Original View,” &c., being Vol. II of the 10th ed. of Fearne on Contingent Remainders, § 180 et seg. * Williams on Real Property, 253. 3 Williams on Real Property, 267. 42 Bl. Comm. 169. § 26.] VESTED AND CONTINGENT REMAINDERS. 17 swer the description imposed upon the remaindermen by the instrument. Thus a devise of an estate to A for life, remainder to the heirs of B, gives to B’s children, | during his life, only a contingent remainder. For they are to take only in their capacity as heirs of B, and while he lives they do not answer to that description. In other words, during B’s. life there are no persons in esse and ascertained, of whom it could be said ‘ they are the persons to whom the testator has given the remain- der in fee;”’ for he gave it to the heirs of B, and there are now no heirs of B in existence. § 25. Such was the distinction drawn at the common law between vested and contingent remainders. But it is of the first importance to keep in mind the fact that the mere existence of these formal definitions was only the first step toward ascertaining in any given instance whether a particular remainder was vested or contin- gent. For as each new case came in question, it was still necessary to determine whether or not it had the characteristics essential to a vested remainder. It was well to ascertain the rule that if it had that character then it was vested. But did it have that character? That was the next question. Now it is clear that the answer must depend on the intention of the grantor or devisor, either as expressed; or inferred; or assumed in accordance with settled and sometimes apparently arbi- trary rules of construction. § 26. The meaning of the principle according to which the remainder in the former of the two cases giv- en by Professor Gray’ was held contingent, and that in the latter case vested, is that the law saw, or assumed, in the phraseology employed in the first will, an intent that there should not be persons in esse and ascertained, 1 Ante, § 22. 18 INTRODUCTORY. [CH. I. during A’s life, capable, in the capacity in which they then existed, of taking the remainder whenever the precedent estate determined. In other words, the acquisition of the required capacity constituted a collateral contin- gency which must happen before vesting. And so, ap- plying the common law definitions, the law found the remainder to be contingent. While in the second will, it found au equally clear intent that the children, in the capacity which they then held, should be capable at every moment of taking the remainder in possession, whenever the precedent estate determined, subject to having their rights cut off in case of the happening of a designated condition subsequent ; and again applying the same definitions, it found that this remainder was vested. § 27. In coming, as we now do, to a consideration of the distinction between vested and contingent future estates laid down in the Revised Statutes, it is impor- tant, then, to bear in mind the fact that at the common law, in order that a remainder be vested, there must be ascertained persons in esse capable of taking it at once in possession, in their present capacity, whenever the precedent estate should terminate; and further, that the question whether there were such persons or not, was answered in each case in accordance with the par- ticular provisions of the instrument then under consid- eration.' 4. Vested and Contingent Future Estates under the Revised Statutes. § 28. By the Revised Statutes it is provided, as we have seen, that ‘“‘future estates are either vested or ' For general authorities on remainders vested and contingent at com- mon law. See Greenleaf's Cruise, Vol. II, Tit. XVI (202 et seg); 4 Kent Comm. Lect. 59; Challis on Real Property, Part II, Ch. XI XI; Wil. liams on Real Property, Part II, Ch. I, I, IIL. i § 30.] VESTED AND CONTINGENT FUTURE ESTATES. 19 contingent. They are vested, when there isa person in being, who would have an immediate right to the possession of the lands, upon the ceasing of the inter- mediate or precedent estate. They are contingent, whilst the person to whom, or the event upon which they are limited to take effect, remains uncertain.” ! § 29. Now it has been said, and the statements come from such sources as to entitle them to the most serious consideration, that these statutory provisions were in- tended to effect a radical change in the distinction theretofore existing between the terms vested and con- tingent. It has been said that the description of vested future estates was intended to be taken with absolute literalness, and that the purpose and result of the adoption of this section was to make the distinction turn solely on the question whether there are human beings in existence who, no matter whether the capac- ity in which they now exist does or does not correspond with that set forth in the instrument creating the estate, would as a matter of fact become at once entitled to the remainder in possession if the precedent estate should now terminate. § 30. If this be, in reality, the true construction of the statute, the resulting effect upon the classification of future estates would be very great. Thus, under such a construction, in case of a devise to testator’s wife for life and at her death remainder in fee to her heirs, the remainder would be defeasibly vested during the widow’s life, in her children living at any given mo- ment. ‘For they are certainly persons who, if the pre- cedent estate should now terminate by the death of the widow, would thereby acquire the required capacity as 11K. 8. 723, § 18; Mich. G. 8. § 5529; Minn. G.S. § 3969; Wis. A. S. § 2087, 20 INTRODUCTORY. [CH. I. her heirs, and would take the fee in possession. But to attain this result, it is necessary to disregard the fact that while she lives there are no persons answering to the description which the testator chose to impose in designating the persons who should take the remainder ; and thereby to disregard the intent implied in his form of expression. § 31. It will be most convenient first to gather the tew, though weighty, authorities in favor of this view, and then to set off against them the grounds for consid- ering that in fact no such change in the law was either in- tended or effected. The authorities in favor of a change are as follows : § 32. Moore v. Littel (1869).1 The grant under con- sideration in that case, was to John Jackson “for and during his natural life, and after his decease to his heirs and their assigns.” Habendum, to John Jackson “ for and during his natural life, and after his death, then to his heirs,” &c. Of course at the common law, this dis- position under the operation of the Rule in Shelley’s Case,* would have given an estate in fee to John Jack- son, and his heirs would not have taken any remainder as devisees of the testator at all. But as that rule had long ago been abrogated in New York,’ that difficulty was removed, and John Jackson took merely a life estate. As the court say: ‘‘I concede that as a mere abrogation of the former rule, declared by the courts in England,” (the Rule in Shelley’s Case) * * * ‘the effect of the grant would be to give John Jackson an 141 N.Y. 66. ? 2 Blackstone, Comm. 242; Williams on Real Property, 253; Gerard on Titles to Real Estate (8d ed.), 219. * Gerard on Titles to Real Estate (8d ed.), 221: 1R. 8. 725, § 28; Mich. G. 8. § 5544; Minn. G. 8, § 8984; Wis. A. S. §$ 2052; Jones v. Jones, 66 Wis. 310 (818). § 32.] VESTED AND CONTINGENT FUTURE ESTATES. 21 estate for life, with remainder to those uncertain per- sons who might be his heirs at his death. And this re- mainder wonld be a contingent remainder at the com- mon law, because, during his life, no person could answer that designation ; and not alone for this reason, but because it could not be averred by any person that he would be the heir of John Jackson at the time when the life estate of the latter (the present estate), was de- termined * * *”1 And the opinion of the court, per Woodruff, J., then proceeds as follows to consider whether the Revised Statutes, in their description of vested and contingent future estates, have not effected a change such as would render the remainder in question vested instead of contingent: ‘It is not, however, in my judgment, profitable nor necessary to the view which I intended to suggest, that I should pursue the consid- eration of the peculiar case created by the grant now in question, if it were to be governed by the refinements of the common law, under the influence of its fuedal customs, restrictions, complications, and of the ingenu- ity and learning sometimes employed to avoid rather than give rational effect to the intention of the parties. It was one of the objects of our Revised Statutes to re- duce to greater simplicity the rules governing the tak- ing, holding and transmitting of real estate, and, espe- cially, to favor the vesting of estates and the aliena- bility thereof. * * If there ‘is a person in being who would have an immediate right to the possession of the lands upon the ceasing of the precedent estate, then 1 Both at con:mon law and under the Revised Statutes, if it is seen that testator has used the word “heirs” loosely, to designate now living indi- viduals, effect will be given to his intent. Heard 2. Horton, 1 Den. 168; see Campbell v. Rawdon, 18 N. Y. 412 (417). And the same rule applies in construing deeds. Heath v. Hewitt, 27 N. E. Rep. 959; s. c. 44 Alb. L. J.114. But unless the intent to use the word in an unusual or loose sense appears, it must be held, when referring to the “ heirs” of a living person, to mean the as yet unascertained persons who will be his heirs when he dies, Cushman v. Horton, 59 N. Y. 149. x 22 INTRODUCTORY. [CH. I. that remainder is vested,’ within the terms of the stat- ute. It is not ‘a person who now has a present fixed right of future possession or enjoyment,’ but a person who would have an immediate right if the precedent es- tate were now to cease. I read this language accord- ing to its ordinary and natural signification, and if you can point toa human being and say as to him, ‘that man or that woman, by virtue of a grant of a remainder would have an immediate right to the possession of cer- tain lands if the precedent estate of another therein should now cease,’ then the statute says, he or she has a vested remainder. It was argued on this appeal, that de- finitions of vested and contingent remainder in adjudged cases and text-writers have not been successfully at- tempted and that our revisers did not attempt to alter the law, or do more than describe what had already been ad- judged to be vested, and what to be contingent. In my opinion, they have defined a vested remainder in terms that do clearly avoid much of the uncertainty in which the subject was before involved, and in such terms that itis now true that if there be a person in being of whom it can be positively averred, that if the estate for life were now to cease, he would have an immediate right of possession, he has a vested remainder, and notwith- standing subsequent events may defeat it, the operation of the statute itself is tv make them subsequent condi- tions. * * * Without enlarging further, the statute, re- jecting technical expressions and phrases heretotore em- ployed, meant by person, just what it expresses and no more. ‘When there is a person in being,’ means when you can point to a human being, man, woman or child; and ‘who would have an immediate right to the pos- session of the lands upon the ceasing of the precedent estate,’ means that if you can point to a man, woman or child, who, if the life estate should now cease, would § 35.] VESTED AND CONTINGENT FUTURE ESTATES. 23 eo instonti et ipso facto have an immediate right of pos- session, then the remainder is vested, and, by necessary consequence, all the contingencies which may operate to defeat the right of possession, are to operate and only to operate as conditions subsequent.” This case will be further examined post, §§ 38, 39 and 49 et seq. § 33. In the previous case of Sheridan v. House,’ a majority of the court had held, in construing the same will, that the children took a vested remainder. § 34. And in House v. Jackson,* also arising out of the same will, the case of Moore v. Littel is cited and followed, and the court again hold that the interest of one of the children in his remainder, vested during the father’s life. In this case the point was squarely in is- sue, and was essential to the decision reached, which was concurred in by all the judges.’ This case will be further examined in § 39, post. § 35. Lawrence v. Bayard‘ (1838), is a case which the court cite in Moore v. Littel, to show that their view of the subject was not novel. There certain moneys were, upon the death of A, to be paid to the then sur- viving oldest son of W. It was held that during A’s life, and while W and his two sons, B and C, were also alive, B, who was the oldest son, had a vested remain- der, because, if A had then died he would thereupon prove to be the oldest then surviving son of W. This case will be further examined in § 38, post. 14 Abb. Ct. Ap. Dec. 218. 250 N. Y. 161. See, also, Jackson v. Sheridan, 50 N. Y. 660. 3 For other cases arising out of the same will, in which these points figure incidentally, see Jackson v. Littel, 56 N. Y. 108; House v. McCor- mick, 57 N. Y. 810. 47 Pai. 70. s 24 INTRODUCTORY. [CH. I. § 36. Mead v. Mitchell* (1858) is also cited as an au- thority, in Moore v. Littel. In that case there was an estate to trustees for the life of A, and after her death and in default of any appointment by her by will, to such persons of A’s blood as would have inherited from her by descent. A was given the power to ap- point the remainder to such persons of her blood as she might select. She had two children. It was held that they took a vested remainder during her life. This case will be further examined in § 38, post. § 37. These are the chief authorities’ in favor of the theory that the statutory definition is to be read in its strict and literal sense, instead of being regarded as merely perpetuating the former line of distinction. § 38. We will now examine them, to ascertain their weight. First, then, in point of time, came Lawrence v. Bay- 117 N. Y. 210. 2 See, also, décta in Coster v. Lorillard, 14 Wend. at 302; and in Rome Ex- change Bank »v. Eames, 4 Abb. Ct. Ap. Dec. 98; also Chism v. Keith, 1 Hun, 589 (s. c. sub. nom. Chinn v. Keith, 4 T. & C. 126), where Moore ». Littel is followed, with the following remark by the court: “If the decision of the Court of Appeals in Moore ». Littel is to be taken as a correct exposition of the law, the devise in this case, to ‘the heirs of the body of Mrs. Keith whom she shall leave her surviving,’ created a vested remainder in fee in the present plaintiff, and her brothers and sisters. * * * Such is the rule of law laid down in Moore »v. Littel. It is a rule of property. We have no alternative but to follow it, whatever may be our own views of its cor- rectness.”’ See, also, Lockman » Reilley, 29 Hun, 434; Drake v. Lawrence, 19 Hun, 112. The cases of future remainders to particular persons in their present capacity, as, for instance, to the “heirs” of A, a person already de- ceased, or to a designated and existing class, subject to being wholly or par- tially divested by the happening of a contingency subsequent, do not bear upon the question under discussion. The remainders in such cases are vested, and so they were at common law. The distinction is that in them the future devisees now answer to the description by which they are to take in remainder, and so the presumption of postponement, which is raised by designating them as “heirs,” etc., does not arise. See, also, Scott v. West, 63 Wis. 529 (570-1); Matter of Brown, 29 Hun, 412. § 38.] VESTED AND CONTINGENT FUTURE ESTATES. 25 ard.| The property there involved was personal prop- erty. The court expressly hold in that case, that the decision would be the same whether the remainder were vested or contingent, and bases its decision on principles which, as the court say, are in either view equally applicable. Next came Mead v. Mitchell,’ which presented the question whether a purchaser under a certain partition sale should be compelled to complete the purchase. His ebjections arose out of the follow- ing facts: Testatrix was owner, as tenant in common with one other, of certain real property. She left it, as already stated, in trust for the life of her niece, A, and after A’s death to convey the same to such persons of the blood of A as would have inherited from A if she had died intestate. The suit for partition was brought during A’s life, and while she had one child and one grandchild living. The trustee, and A, and the child, W, and grandchild, C, were made parties. The purchaser objected that the partition suit had not cut off the rights of possible yet-unborn children of A. The ques- tion for the court, therefore, was whether those rights had been cut off. This is considered from two points of view. First it is held that unborn heirs were ‘‘rep- resented” by W and ©, the child and grandchild, in whom, the court say, the remainder was vested subject to open. But over this question of the nature of the estate in W and C there appears to have been no con- troversy. The objection raised here by the purchaser seems to have been merely that, admitting the remain- der to be defeasibly vested, still the future rights of unborn children were not cut off. In the second place, the court then proceed to say that “If there be any question in regard to the conclusive effect of a judg- 17% Pai. 70. 217 N.Y. 210. 26 INTRODUCTORY. [CH. I. ment for partition or sale without the aid of the stat- ute, I am satisfied that with such aid there can be none.” And they then proceed to show that the pro- ceedings under the statute were sufficient to cut off all rights to the land in unborn children. Here the nature of the estate in W and C plays no part whatever, and on this branch of the argument the court chiefly bases the decision. The statement that W and O have a vested remainder is not called for by the decision, and seems to have been conceded without argument. Next came the cases of Sheridan v. House’ and Moore v. Littel,? the grounds of the decisions in both which are explained in the opinion of the latter, and have already been quoted. § 39. The only question involved was whether the remainders were alienable during the life of the tenant of the precedent estate. And the answer did not de- pend at all upon the vested or contingent nature of the remainders, for they were alienable whether vested or contingent. The court mention this fact, and after finding that they are vested, they proceed to say: “If the preceding reasoning be wholly fallacious, and be deemed to give an interpretation to the statute or construction to the law which is unsound, I am wholly unable to see how the result to the present appellants would be different.” And they then proceed to show conclusively that the remainders, though contingent, were alienable.* Inas- much, therefore, as they were alienable whether vested oc contingent, the discussion of the question whether in reality they were contingent or vested was wholly apart from the decision of the case and cannot be '4 Abb. Ct. Ap. Dec. 218. 741 N. Y. 66 21 R. §. 725, § 35; Mich. G. S. § 5551; Minn. G. S. § 3964; Wis. A. S. $ 2059. § 42.] VESTED AND CONTINGENT FUTURE ESTATES. 27 looked on as binding. Three of the judges recorded their dissent from the doctrine that the remainders were vested... As to the next case, House v. Jackson,* the question was whether, if one of the remaindermen also obtained the life estate of John, the union of the two would give him an estate of inheritance in posses- sion, such that his wife’s dower right would then attach during the life of John. This would not be the result unless the remainder were a vested one. The court sustained the wife’s dower right, but they did not ex- amine anew the question whether the remainder was vested. They only say on this point, ‘‘ Moore v. Littel holds the estate of the son, prior to the death of the father, to be a vested remainder.”’ The same will and the same persons were under consideration, as in Moore v. Littel. § 40. Having now examioed the cases supporting the view that the revision effected a change in the com- mon law distinction between the terms vested and con- tingent, we will take up the leading authorities that support the opposite view, and will consider first those going to show that no such change was intended, and secondly those going to show that no such change has in fact been effected. § 41. (1.) It is noticeable that the revisers, in the full notes in which they call attention to and explain important changes in the law, have not offered a word to suggest that their definitions raise any new distinc- tion between the terms vested and contingent. § 42. (2.) The statutory provisions themselves fur- nish, at several points, evidence that they are to be ‘ 1 See, also, 6 Alb. L. J. 361. 250 N. Y. 161. 28 INTRODUCTORY. [CH. I. taken as perpetuating the line of distinction recognized at common law. For ‘in the first place, the statute specially declares them complementary. Future es- tates, it says, are either vested or contingent. Now Judge Woodruft’s rule necessitates one of two things: either to hold that the two definitions overlap one aa- other, so as to make some remainders both vested and contingent at the same time; or to apply to the statu- tory definition of contingent remainders, a strained and peculiar construction. We will examine these alterna- tives in order. § 43. (a.) Chief Justice Savage, in discussing the dis- tinction between vested and contingent remainders,’ though it was ‘not a controlling fact in the case” and ‘did not determine the rights of the parties,” takes the view afterwards supported by Judge Woodruff, and says: ‘‘By the statute definition this is a vested re- mainder, because there are persons in being who would have an immediate right to the possession upon the ceasing of the precedent estate, that is, there are per- sons in being who would take the possession of the estate were the precedent estate now to cease. Should the twelve nephews and nieces all die this day, there are persons now in being who would be entitled to the remainder under the devise. This remainder is also contingent, according to the statute definition,—. the event upon which it is limited to take effect is cer- tain, to wit, the death of the twelve nephews and nieces: but the persons who are to take are uncertain, depending upon the fact of their being in existence at the death of the last of the twelve.” Apart from the par- ticular remainder in that case which gave rise to these remarks, it is evident that wherever, under the applica- ‘ Coster v. Lorillard, 14 Wend. 302, 310, 311. § 44.] VESTED AND CONTINGENT FUTURE ESTATES. 29 tion of the rule in Moore v. Littel, a contingent remain- der would be turned into a vested remainder, it must also remain contingent.| For the peculiar feature of this rule is called out only in cases where it is uncer- tain who (if any one) will ultimately take in possession, but certain who would take if the precedent estate were to terminate just now. This certainty for the present moment satisfies this rule and makes the remainder vested; but the accompanying uncertainty who (if any one) will take in possession if vesting is deferred,— this uncertainty satisfies the statutory definition of con- tingent remainders, and makes it contingent. But it is hardly to be supposed tbat the Legislature intended the definitions to overlap in this way, especially in view of the express provision that future estates are either - vested or contingent. § 44. (b.) The other alternative is to put what ap- pears to be a strained construction upon the statutory definition of contingent remainders. It says that re- mainders are contingent ‘‘ whilst the person to whom * * * they are limited to take effect, remains uncertain.” It is suggested, in support of the rule of Moore v. Littel, that this definition does not refer to a case where the persons in whom the remainder would now vest, if the precedent estate were now to terminate, are certain, even though it is uncertain who will really take if its termination be postponed to the future. According to this view the statute is to be read as if it said ‘‘ whilst the person in whom they would take effect if the prece- dent estate were now to terminate, is uncertain.” This appears to be utterly at variance with the actual form of expression employed. Great light is thrown on this point, and on our whole subject of discussion, by the fact that while the statutory definition of vested re- mainders—when taken by itself, disconnected from the 30 INTRODUCTORY. [CH. I. context and from its history—is, perhaps, grammatical- ly open to two constructions, the statutory definition of contingent remainders is practically identical with that laid down by Blackstone: Blackstone. Revised Statutes.’ “Contingent * * * re- Remainders “are con- mainders are where the es- tingent whilst the person tate in remainder is limited to whom, or the event to take effect either toa upon which they are lim- dubious and uncertain per- ited to take effect, remains son, or upon a dubions and uncertain.” uncertain event.” § 45. It would be difficult to assume that with Black- stone’s familiar definition in their minds, the learned revisers would have adopted practically identical phrase- ology as a means of effecting a proposed radical change in the existing law. Where two definitions at common law are complementary to one another, and a revision, in defining the same subjects, states one of them ex- actly in the terms of the common law, and the other in terms which to Chancellor Kent’s mind were an equally exact reproduction,*® but which were, perhaps, open to another construction also; and the revision provides that its two definitions are also complementary ; it would appear more reasonable to construe the latter definition in harmony with the former, rather than the former in harmony with the latter. § 46. (3.) The form of definition adopted in the re-. vision has frequently been employed in substance, both before aud since its adoption by the revisers, as a cor- 12 Bl. Comm, 169. 21K. 8. 723, § 13; Mich. GS. § 5529; Minn. G. S. § 3969; Wis. A. 8. § 2087. * See the following section. 8 46.] VESTED AND CONTINGENT FUTURE ESTATES. 3l rect statement of the common law distinction between the terms vested and contingent.” Thus Fearne, in de- scribing vested remainders, attributes to them as a dis- tinguishing characteristic the present capacity of tak- ing effect in possession if the possession were to be- come vacant.' And Mr. Williams has been charged, by good authority, with introducing into his explanation of common law vested remainders, in his work on Real Property, the peculiarity attributed to the New York Statutes,? although nothing, of course, can be more certain than that Mr. Williams intended to state the common law rule with perfect accuracy. Chan- cellor Kent, in his Commentaries,*? adopts as his gen- eral and only definition of vested remainders, the definition from the Revised Statutes, and goes on to say: “The definition of a vested remainder in the New York Revised Statutes appears to be accurately and fully expressed.” Mr. Washburn, in his treatise on Real Property,’ calls attention in one of his own notes (4th ed.) to the decision in Moore v. Litiel as a ‘‘re- markable”’ one, ‘‘where it was held that a grant to A for life, remainder to his heirs, was a vested remainder. Three, however, of the court held, what is regarded by most other courts as law—that it was a contingent one.” The editors of the fifth edition add: ‘‘In Hen- 1 Fearne on Contingent Remainders (10th ed.), 215-16; also Greenleaf’s Cruise (2d ed.), I, 712; so Challis on Real Property, 56, where it is said that “an estate is said, though not vested in possession, to be vested in interest in a given person, when that person would be entitled, by virtue of it, to the actual possession of the lands, if the estate should become the estate in possession, by the determination of all the precedent estates.” So, also, Mr. Preston, in his “ Abstracts of Title,” says, vol. II, p. 118: “ The cri- terion and distinguishing feature of a vested remainder is, that it is capable of taking effect in possession immediately, if the particular estates were determined.” 2 Judge Holmes’ note, 4 Kent, Comm. (12th ed.), 208, note 1. 34 Kent, Comm. 202. * Vol. II, p. 229. 32 INTRODUCTORY. (CH. I. nessy v. Patterson,’ the case of Moore v. Littel is referred to and explained, as in reality deciding only that under the Revised Statutes of New York the interest of the heirs in the contingent remainder was alienable.”’ § 47. But whatever may have been the purpose of the revisers, it remains to be considered whether the cases already cited must be taken to have adopted and established the construction advocated in Moore v. Littel. § 48. (1.) In Carmichael v. Carmichael (1868)? there was a devise to testator’s wife for life, and from and at- ter her decease to testator’s children who might “ then be living.” The court held that ‘‘the estate does not vest in remainder until her (the widow’s) death, and then it vests only in those children who shall be living at the time of her death.”® § 49. (2.) Hennessy v. Patterson* (1881). Here the testator, after providing for his widow, and for his daughter Margaret for her life, added: ‘‘I wish and will, that should my said daughter Margaret die with- ont leaving any issue, then the said property shall be left to my nephew John Foley.” The widow died. Margaret and Foley were left surviving. Margaret had no children. During Margaret’s life, therefore, Foley was a ‘‘human being who, if Margaret had then died, would have at once taken the future estate in posses- sion.” Under the general principle of the rule laid down in Moore v. Littel, Foley’s estate would have been vested during Margaret's life, and while she had no 1 See post, § 49. 71 Abb. Ct. Ap. Dec. 309 (4 Keyes, 346). 8 See, also, In ve Ryder, 11 Pai. 185. 485 N. Y. 91. § 50.] VESTED AND CONTINGENT FUTURE ESTATES. 33 children. But in order to reach this conclusion it would be again necessary to disregard the fact that the future estate was given to him only in connection with, and upon, the death of Margaret without issue. Here the common law distinction, and the distinction in Moore vy. Littel were in direct conflict, and the court follows the former, and holds the future estate in Foley contingent until it should be seen whether Margaret died without issue. Foley died first, and his contingent future estate, -not depending on the continuance of his personal life for its existence, descended to his _heirs as such, and, upon Margaret’s death without issue, vested in them in possession. (And the court say: ‘“‘* * * the rule stated in Moore v. Littel by Judge Woodruff, that where the same event [in this case the death of Margaret without issue], at the same time, ¢o instanti, terminated the pre- cedent estate, and settled the contingency, the remain- der was vested, * * * was said of a remainder to the heirs of one living, and we think does not fairly ap- ply to the case before us. And besides, the doctrine was not assented to by three of the judges, and the case was really decided upon the ground * * * that the remainder was contingent, but nevertheless an expectant estate, as defined by the Revised Statutes, and, as such, alienable.”* § 50. In the case last cited’ it will be noticed that the facts came exactly within the terms of the general tule laid down by Judge Woodruff,’ namely, there were human beings in existence whom one could point to and say, ‘‘there is a man, or there is a woman, who, if the precedent, or the intermediate, estate were now to terminate, would at once take the remainder in posses- 1 Hennessy v. Patterson, 85 N. Y. 91. 2 Moore ». Littel, 41 N. Y. 66. 34 INTRODUCTORY. [CH. I. % sion.” But the court bold, in Hennessy v. Patterson, that that was not enough. It is true that in Moore v. Littel' the relation borne by the remainderman to the life tenant was not the same as that borne—in Hen- nessy v. Patterson’—by the future tenant to the person upon whose life the precedent estate depended. Jn the former case the death of John Jackson would have a double effect, terminating the precedent estate and also imparting to his then living children the required ca- pacity as his ‘“‘heirs.” In the other case, however, the existence of a collateral contingency which must hap- pen before vesting, consisted not in the present lack of the required capacity in Foley, for he was specially identified by name in the will. It consisted, instead, in the possible death without issue of a life tenant now alive and childless. There are these distinctions between the facts of the two cases. But these distinctions were not such as to create, at the common law, any difference in the treat- ment of the two cases; and the statutory definitions contain nothing to suggest one construction in one case and another in the other. Nor did Judge Woodruff hold that the particular relationship existing in Moore v. Inttel between the life-tenant and the remainderman created a situation calling for any different construc- tion of the statutory definitions from that applicable to all cases whatever. : § 51. It is also true that the event upon which vest- ing in possession was conditioned in the former case, —the death of John,—was one certain to happen ; while in the latter case the event,—the death of Margaret without issue,—was one which might or might not hap- 1 Moore ». Littel, 41 N. Y. 66. 2 Hennessy v, Patterson, 85 N. Y. 91. § 51.] VESTED AND CONTINGENT FUTURE ESTATES. 35 pen. But the court, in Hennessy v. Patterson,’ did not allude to this distinction, or base any assertion of dif- ference on it; and the statute offers no hint that its new rule (if it offers any) is to be disregarded, and the common law rule received, whenever’ the event on which the remainder is limited to vest in possession is one which may not happen; and in all other cases is to be enforced strictly. It lays down a general distinction between vested and contingent estates, and whichever meaning we give to it is applicable to all cases. IEf it is to be taken literally, as in Moore v. Littel, then its literal meaning appears equally applicable in both the cases cited. If such literal meaning is not given it in the Hennessy case, it appears to be inapplicable any- where. The Court of Appeals, in a case where there was aman who could be pointed out as certain to take the future estate in possession if the intermediate estate should now terminate, holds that nevertheless the future estate is not vested but contingent. And though it calls attention to a distinction between the case in hand and the Moore case it wholly discredits the authority of the latter on the point under discussion, not only by removing the entire foundation on which it is based, but by calling attention to the fact that the Moore case really decided that the remainder was contingent.’ 185 N. Y. 91. ° It has apparently been thought that Purdy v. Hayt, 92 N. Y. 446, had some bearing on the question under discussion. See Abb. Dig., Vol. 10, p. 606; Gray, Rule against Perpetuities, § 107, note 4. The facts in that ease showed three successive life estates to J, C and E, followed by a re- mainder to such children as E, the third life-tenant, might leave surviving her. Under the statute concerning successive life-estates, post, § 821, the estate to E was cut off, and the question was whether the remainder to E’s children could be accelerated and take effect in possession at the end of the second life-estate. It was held that the answer depended on whether the ultimate remainder was vested or contingent; and it was held to be contingent. The case might at first sight appear to be an authority in line with Hen- 36 INTRODUCTORY. [CH. I. § 52. In view of the foregoing authorities, it cannot be said that the rule suggested in Moore v. Littel has become Jaw in New York. It would appear that that rule has been practically repudiated and disapproved. The question is perhaps still open for decision. 5. Contingencies Precedent or Subsequent. ti § 53. All contingencies are either precedent or sub- sequent, and as this distinction plays an important part in the discussion of the subject before us, we will here briefly examine it and ascertain its bearing. § 54. Precedent contingencies are such as must hap- pen or be performed before the estate can vest or be en- larged ; subsequent are such that, by their failure or non-performance, an estate already vested may be defeat- ed There are no technical words to distinguish them and whether they be the one or the other is a matter of construction, and depends upon the intention of the party creating the estate.’ nessy 0. Patterson. But it is to be noticed in the first place that there was nothing to show that E had any children at all, until after the close of the second life-estate. So that the absence of remaindermen at that time would necessarily have rendered the ultimate remainder contingent, even if there had been no other cause. In the second place, inasmuch as the life-estate to E had been cut off, her death thereby lost all connection with the dura- tion or termination of the life estates. So that if J and C had both died, and thus terminated the precedent estate, any children of E then living could not have taken their remainder in possession. Her death constituted a purely collateral condition precedent, for the happening of which her children, had she had any, would have been obliged to wait, even though the precedent estate had terminated. The case is thus seen to have no bearing on the rule in Moore ». Littel. 12 Bl. Comm. 154; Chase’s Blackstone, Id. note. +4 Kent, Comm. 124; Towle v. Remsen, 70 N. Y. 303 (311); see New- kerk 0. Newkerk, 2 Cai. 345, where the court divided on the question whether a certain condition was precedent or subsequent. For conditions held precedent, see Parmelee v. The Oswego & 8. R. R. Co., 6N. Y. 74; § 56.] CONTINGENCIES PRECEDENT OR SUBSEQUENT. 37 § 55. All limitations and conditional limitations which mark the specific or the possible boundaries at which an already vested estate must or may come to its end, are of course subsequent in their nature.! A con- tingency subsequent only sets a limit at which the pre- ceding vested estate must, or may, come toa stop. It does not thereby deprive the preceding estate of its vested character. § 56. But it is also seen, that every contingency sub- sequent is also a contingency precedent. It follows one estate, but it precedes another. In marking out, in its character as subsequent, the line where one estate must or may cease, it at the same time, and in its character as precedent, marks the line where another estate may begin. The first estate continues up to the happening of the contingency, or until entry based on its happen- ing, and viewed in this light the contingency is subse- quent; but the other estate cannot begin until, or in case, the same contingency happens and the first estate is out of the way, and viewed in this light the contin- gency is precedent. Kenyon 2. See, 94 N. Y. 563; Bennett v. Culver, 97 N. Y. 250. Conditions subsequent, see Vail v. L. I. R. R. Co., 106 N. Y. 283; Nicoll. N. Y. & E. R. Co., 12 N. Y.121; Hogan ». Curtin, 88 N. Y. 162; Garrett ». Scouten, 3 Den. 334; Towle v. Remsen, 70 N. Y. 303; Gerard on Titles to Real Prop- erty, 119 (3d ed.); Greenl. Cruise, Vol. II, 2 e seg. “ While conditions subsequent can be imposed without the use of tech- nical words, as they are not favored by law they must be clearly expressed, and if it is doubtful whether it is a covenant or a condition, the courts will so construe it, if possible, as to avoid a forfeiture.” Graves v. Deterling, 120 N. Y. 447 (455). And they will allow the general intent to override strong forms of condition. See Post v. Weil, 115 N. Y. 361; Avery». N. Y. 0. & H. R. R.R. Co., 106 N. Y. 142; Clement v. Burtis, 121 N. Y. 708; Countryman v. Deck, 138 Abb. N. C. 110. ' See 2 Bl. Comm. 155. ‘ 38 INTRODUCTORY. [cuH. I. 6. Vesting Subject to Being Divested, and Vesting Subject to Open. § 57. (a.) Subject to being divested —A vested estate, whether present or future, may be either absolutely or defeasibly vested. In the latter case it is said to be vested subject to being divested, on the happening of a contingency subsequent. An example of such estates is found, for instance, in cases where a fee is given to a grantee or devisee, but in case of his death without leaving issue then over to another.’ Another illustra- tion is found in cases where an estate is vested, to con- tinue unless or until some contingency happens or so long as an existing condition of things continues. Thus, a gift to A in fee, to continue until Glovers- ville shall be incorporated as a village, is vested. subject to expiration on the happening of the specified contingency subsequent.” Estates subject to re-entry for condition broken, are also illustrations of the gen- eral class under discussion. In the instances already cited, the divesting is complete. There are, however, cases where estates may be vested subject to being par- tially divested. These may be conveniently examined under the head of ‘‘ estates vested subject to open.” § 58. (b.) Subject to open.—Here there is a gift to the members of a class and at the death of the testator the future estate vests in interest in such members of the class as are then in being and ascertained, ‘subject to 11 B.S. 722,§ 16; Manice o. Manice, 48 N. Y. 308: Howell >. Mills, 7 Lans. 193 (see 56 N. Y. 226); Kelso ». Lorillard, 85 N. Y. 177; see Baker ®. McLeod’s Estate (Wis.), 48 N. W. Rep. 657; Burnham v. Burnham (Wis.), 48 N. W. Rep. 661. ? Leonard 2. Burr, 18 N. Y. 96. 3 See post, Chap. III. § 60.] VESTING SUBJECT TO OPEN. 39 open,” and let in new members of the class during the precedent or intermediate estate. Thus, where a tes- tator devises land to A for life, remainder to her chil- dren in fee, and at testator’s death A has four children living, the remainder vests at once in interest in these four, subject to open, and let in other children of A who may be born during the precedent estate.? The subsequent birth of children here constitutes a contin- gency subsequent and the opening results in divesting, pro tanto, the already vested shares of the existing members.? § 59. And where there is a substituted devise to take effect in case any of the class die during the precedent estate, the remainder is then vested in the existing mem- bers subject to open to let in new members, and to be wholly divested in favor of the substituted devisee, as to the share of the member dying.’ §$ 60. But where the future estate is devised to the members of a class and there are no words of limita- tion, or survivorship, or of devise over to any other person, the fee vests in remainder at testator’s death, subject to open and let in new members of the class 12 Washburn on Real Property, 230; Matter of Estate of Brown, 93 N. Y. 295 (299, 300); Du Bois v. Ray, 35 N. Y. 162; Monarque v. Monar- que, 80 N. Y. 320 (825). As soon as the estate vests in possession, it is no longer subject to open. Stevenson v. Lesley, 70 N. Y. 512 (517). 2 Doe v. Provoost, 4 Johns. 61; Stevenson v. Lesley, 70 N. Y. 512; Tucker v. Bishop, 16 N. Y. 402; Byrnes ». Stilwell, 103 N. Y. 453; Smith v. Scholtz, 68 N. Y. 41; Monarque v. Monarque, 80 N. Y. 320; Baker 2. Lorillard, 4 N. Y. 257; Hannon v. Osborn, 4 Pai. 336 (342); Miller v. Ma- comb, 26 Wend. 229 (284); Surdam ». Cornell, 116 N. Y. 305. 3 Graham »v. Houghtaling, 30 N. J. L. 558; Surdam ». Cornell, 116 N. Y. 305 (809). 4Smith v. Scholtz, 68 N. Y. 41 (61); Baker 2. Lorillard, 4 N. Y. 257 (269 et seg); Dubois v. Ray, 85 N. Y. 162. 40 INTRODUCTORY. (CH. I. (and thus to be divested pro tanto), but not to be divest- ed by death during the precedent estate.1 ‘ Byrnes v. Stilwell, 103 N. Y. 453; Stevenson v. Lesley, 70 N. Y. 512. Where a devise to a class is of a contingent future estate, new members may of course be constantly coming in and old ones dropping out, their Tight to take ultimately being contingent on their being members of the class, at the future time designated. See Campbell v. Rawdon, 18 N. Y. 412, where in a will executed in 1819 there was a devise to A for life, re- mainder to the heirs of B. Here B died before the testator. But if he had survived him B’s children would have had a contingent remainder during the joint lives of A and B until by B’s death they should become his “heirs.” In the meantime, if any of them had died, the survivors would have taken the entire interest, and if any more had been born, they would have become entitled to equal shares with the others in the contingent re- mainder. This situation is discussed by the court. CHAPTER II. SUSPENSION OF THE POWER OF ALIENATION. . The Absolute Power of Alienation. No Persons in Being. . What Estates are Alienable. . The Statutory Period. . The Creation of the Estate. Two Lives in Being. . Additional Measures of the Term. . Alternative Measures of the Term. . Limitations of the Statutory Requirement. DAMaApwowe RULE I.— THE POWER OF CONVEYING THE ABSOLUTE FEE IN POSSESSION SHALL NOT BE SUSPENDED BEYOND THE STATUTORY PERIOD. § 61. The question whether vesting must take place within the same period, or may be indefinitely post- poned, is not within the scope of this rule. The rule applies to all estates, interests, rights and possibilities, but it only requires that they shall not place in the way of the absolute alienability of the fee any impediment which may outlast the statutory period. So far as this rule goes, future contingencies which do not interfere with the power of alienating the absolute fee, are en- tirely unobjectionable. The requirement of vesting is imposed by the Second Rule, which applies, however, only to that class of future estates known as ‘‘remain- ders.” The absolute alienability required by the First Rule does not necessarily imply vesting. All expectant estates are alienable, devisable and descendible,' and this applies to contingent as well as to vested expect- 11.8. 725, § 85; Mich. G. 8. § 5531; Minn. G. S. § 3964; Wis. A. S. 2059. 42 SUSPENSION OF POWER OF ALIENATION. [CH. 1I- ant estates. But the converse is not true, for vesting —except in certain trusts—does involve absolute alien- bility.’ § 62. The statutory provisions on this subject are as follows: «‘The absolute pewer of alienation shall not be sus- pended 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 sec- tion.? ‘A contingent remainder in fee may be created on a prior remainder in fee, to take effect in the event that the persons to whom the first remainder is limited shall die under the age of twenty-one, or upon any other contingency by which the estate of such persons may be determined before they attain their full age.” * The absolute power of alienation is suspended ‘‘when there are no persons in being by whom an abso- lute fee in possession can be conveyed.” ® § 638. Under these provisions it here becomes im- portant to examine the meaning of the terms “absolute 1 Hennessy v. Patterson, 85 N. Y. 91; Ham ». Van Orden, 84.N. Y. 257 (270); Dodge »v. Stevens, 105 N. Y. 585; Griffin ». Shepard, 124 N. Y. 70; Curtis v. Fowler, 66 Mich. 698. > Vanderpoel v. Loew, 112 N. Y. 167 (186, 181). The vesting of an es- tate involves absolute alienability, of course, only so far as that particular estate itself is concerned. Thus the fact that a given remainder is vested, even though only defeasibly, renders it necessarily absolutely alienable so far as it is itself concerned, and subject to the same possibility of defeas- ance in the hands of the alienee, but the absolute fee may at the same time be inalienable. 31K. S. 728,815; Mich. G. S. § 5531; Minn. G. 8S. § 3976, see Ap- pendix; Wis. A. 8. § 2039, see Appendix. *1R. 8. 723,316; Mich. G.S. § 5532; Minn. G. 8. § 3985; Wis. A. 8. § 2040. 51 R S. 728, $14; Mich. G. 8S. $5580; Minn. G. 8. § 8975; Wis. A. 8. § 2038. See Norris . Beyea, 13 N. Y. at 289. § 64.] ABSOLUTE POWER OF ALIENATION. 43, power of alienation” and ‘‘no persons in being,” and to consider what estates are alienable under the stat- ute. 1. The Absolute Power of Alienation. No Persons in Being. § 64. The term absolute power of alienation is equiva- lent to the power of conveying an absolute fee. And the one test of alienability, in any given case, lies in the question whether there are persons in being who, if. they wish, can convey an absolute fee in possession.’ The absolute fee need not be already vested in order to obviate suspension of the power. Wherever there is in being a representative for each estate, interest, right and possibility, present and future, vested and contin- gent, each capable of alienating—if he wishes—the es- tate or interest represented by him, there can be no sus- pension. For the various estates and interests consti- tute amongst them the makings of an absolute fee; and if, by releases, or conveyances to a common grantee, these can be consolidated in one, the consolidated es- tate thus formed is, of necessity, an absolute fee in possession. In other words, it is sufficient if there are persons in being who, by combining the several estates, rights, interests and possibilities that they represent or are authorized to speak for, can, if they all wish to, patch together an absolute fee.” It is not necessary that all the outstanding possibilities of future defeas- ance should be capable of conveyance or assignment. It 11 BR. S. 723,814; Mich. G.S., § 5580; Minn. G.8., § 3975; Wis. A. 8., § 2038. ; 2 Mott vo. Ackerman, 92 N. Y. 550; Everitt 0. Everitt, 29 N. Y. 39 (77 et seq.); Emmons 2. Cairns, 3 Barb. at 248; Greenland v. Waddell, 116 N. Y. 284 (246). See Matter of N. Y., L. & W. R. RB. Co., 105 N. Y. at 96; Garvey o. McDevitt, 72 N. Y. at 568; of, Farrar o. McCue, 89 N. Y. 139 (146). 44 SUSPENSION OF POWER OF ALIENATION. [CGH. II. is enough that they may be released,‘ or in any way ex- tinguished or got out of the way, so that the fee may be cleared of all features that deprive it of its absolute character, and may be delivered, absolute and indefeas- ible, to a grantee or releasee. § 65. Noris it necessary that even one person should hold any indefeasible estate whatever in land, in order that the conveyance of an absolute fee may be possible. Thus if A has a vested estate in fee subject to being di- vested by his death without leaving issue, and B has a fee in remainder contingent on the happening of the same event, there neither has an absolute and inde- feasible estate. And yet if A and B piece their respec- tive defeasible and contingent estates together, and both convey to C they convey an absolute fee in posses- sion. § 66. But it is here to be noticed that the statute speaks of ‘‘ persons who can convey an absolute fee,” ? and thereby refers only to cases where there are persons authorized tu completely represent and dispose of all the present and outstanding estates, interests, rights and possibilities, and able, by uniting, to themselves effectuate a conveyance of the absolute fee in posses- sion. It follows therefore, that assuming that a judge might in his official capacity, and in the exercise of his judicial discretion, give such a consent as would render it possible for those interested, to convey a fee other- wise inalienable this would not suttice. The judge’s judicial action could not be brought in any sense within ' Beardsley v. Hotchkiss, 96 N. Y. 214; Everitt ». Everitt, 29 N. Y. 39 (77, 78); Miller o, Emans, 19 N. Y. 884. See Garvey v. McDevitt, 72 N. Y. 563; Emmons ». Cairns, 3 Barb. at 248. 71K. S. 723, § 14; Mich. G. S. § 5580; Minn. G. S. § 3975; Wis. A. S. § 2088. § 68. ] ABSOLUTE POWER OF ALIENATION. 45 the term “conveyance.” It could not properly be said that he and they together constituted persons in being capable of conveying afee. His consent must come first, and act not as a conveyance, but as a collateral condition precedent, to impart to the others a power not thitherto possessed by any one. § 67. It is the absence of the power of alienation, and not the absence of an actual sale, that causes a sus- pension.? If the power to convey an absolute fee exists anywhere, there obviously cannot be said to be a sus- pension of the absolute power of alienation, It is, however, necessary to observe the terms accurately, and to interpret them in the light of their purpose. By the term ‘“‘ power of alienation,” the statutes mean a power to sell and convey in the ordinary way for value... And it seems that power to exchange the land held in trust for other land to be held under the same trust, or the power to sell land merely for the purpose of re-invest- ing the proceeds in other land, does not obviate the ob- jection of inalienability. For the ‘“‘ absolute power of alienation refers not only to the power to convey a fee- simple absolute, but the power to treat the proceeds as free from the trust. It applies both to the subject of the conveyance and to the product of the sale.’’® § 68. These statements apply with equal force, though in a somewhat different way, in cases where the 1 See Genet v. Hunt, 118 N. Y. at 172, where, however, it was held that in fact the justice had no power to sanction the sale. ? Robert ». Corning, 89 N. Y. 225 (289); Hunter 0. Hunter, 17 Barb, 25 (90). 3 See opinion of Nelson, Ch. J., in Hawley v. James, 16 Wend. at 122, and of Chancellor Walworth, s. c. 5 Pai. 445. 4 Belmont v, O’Brien, 12 N. Y. 394 (402); see Ward v. Ward, 105 N. Y. 68 (71). 5 Brewer v. Brewer, 11 Hun, 147; affirmed 72 N. Y. 603; see Hobson 2. Hale, 95 N. Y. 588 (609 ez sez). 46 SUSPENSION OF POWER OF ALIENATION. [CH. Il. proceeds of the sale are not to be reinvested in real es- tate, but are to be held in the form of personal property, subject ‘to the terms of the trust. If the proceeds, whether regarded as real or personal property, would be tied up in violation of the provisions of the Revised Statutes, the power of sale does not save the scheme from the charge of unlawful suspension.! It is of course true that a valid power of sale does free the land itself, and renders it alienable.? And when a change in the nature of the property takes place, either actually by sale, or constructively by equitable conversion, the land is freed from the perpetuity. Before the change, there is a suspension of. the absolute power of alienation of the real property ;° but after the change there is a sus- pension of the absolute ownership of the proceeds.‘ ‘The latter is as fatal to the validity of the scheme as the former. 2. What Estates are Alienable. § 69. It has already been stated ® that there are three senses in which the word vested is used, namely: § 70. (a.) Vested in possession——An estate in posses- sion is where the owner has immediate right to the 1 Haynes 2. Sherman, 117 N. Y. 483; Brewer v. Brewer, 11 Hun, 147; affirmed 72 N. Y. 603; Cruikshank », Home for the Friendless, 113 N. Y. 337; Hobson 2. Hale, 95 N. Y. at 609; Palms ». Palms, 68 Mich. 355 (385); Ford v. Ford (Wis.), 33 N. W. Rep. 188. ? Haynes v. Sherman, supra , see Robert ». Corning, 89 N. Y. 225 (236); see Heermans v. Robertson, 64 N. Y. 332 (dissenting opinion of Earl, J., at 852). 71 B.S. 723, §15; Mich. G. 8. § 5531; Minn. G. 8. § 3976; Wis. A. 9. § 2039. 41R.8. 778, $1. In Michigan, Minnesota and Wisconsin there is no Statutory provision against suspension of the absolute ownership of personal ‘property. See the Appendix. 5 See ante, § 16. § 71.] WEAT ESTATES ARE ALIENABLE. 47 possession of the land.’ Such estates may be absolutely vested in possession, as where an estate is devised simply to A for life, or in fee; or defeasibly vested in possession, as where an estate is devised to A in fee, but if he die under age and without issue, then to B in fee. Here A’s estate is, during his minority, vested in possession, but may be divested by the happening of a condition sub- sequent.’ In either case these estates vested in posses- sion are alienable.® § 71. In the case of estates defeasibly vested in pos- Session it may be suggested that although alienable they are not absolutely alienable. But here it must be noticed that where an estate is vested, even though defeasibly, it may be itself absolutely con- veyed, subject to defeasance. We have already seen that every condition subsequent is also a condition precedent. It marks what may be the end of the defeasible vested estate, but it also marks what may be the beginning of the new and thitherto contingent estate which may supplant or follow it. Now the vest- ed estate which precedes the condition or contingency, and which may be cut off by it, or expire on its happen- ing, is absolutely alienable. Andif there is any inalien- ability, it attaches to the contingent estate which waits for the happening of the same condition or contingency in order to supersede, or succeed to, the vested estate. Thus no charge of obstructing alienation can be laid at the door of the estate vested subject to being divested. So far as that portion of the fee is concerned, the abso- lute fee may be conveyed. 11 B.S. 723, §8; Mich. G. 8. § 5524; Minn. G. 8. § 3961; Wis. A. 8. $ 2082. 2 See Henderson v. Henderson, 113 N. Y. 1 (13). 8 Except where vested in trustees of certain express trusts. See post, Chap. III. 48 SUSPENSION OF POWER OF ALIENATION. [CH. II. § 72. (0.) Vested in interest.—Such estates also may be absolutely vested in interest, as where an estate is given to A for life, remainder to B in fee. Here B’s remain- der, during In the case cited, A’s twenty-first birthday would fall on December 10th, * Benedict v. Webb, 98 N. Y. 460 (466); Oxley v. Lane, 35 N. Y. 340 (345); Savage ». Burnham, 17 N. Y. 561 (572). * Benedict ». Webb, 98 N. Y. 460 (466). 3 Titus v. Weeks, 37 Barb. 136. * Oxley v. Lane, 35 N. Y. 340 (345); Butler v. Butler, 3 Barb. 304; Lang 2. Ropke, 5 Sandf. (8. C.), 363 (369). ®> Haynes v. Sherman, 117 N. Y. 483. § 97.] ‘TWO LIVES IN BEING.” 59 1893. And testator, therefore, practically attempted to provide that the term should certainly continue until December 10th, 1893. The fact that A’s twenty-first birthday happened to fall on that date would not make his life in any sense a measure of the term, if the term was to-continue up to that date even though the life failed in the meantime.’ § 97. Designation of lives.—The lives by which the duration of the term is measured, must be ‘‘in being ”’ at the creation of the estate. The lives of infants to be born subsequently, will not answer.’ But it is not necessary that they should both be specifically identi- fied at the creation of the estate. It is enough that one is thus made known, and that provision is made for the positive ascertainment of the other upon the termina- tion of the first. For instance, it is sufficient to pro- vide that a suspension shall continue during the grant- ov’s life, and after his death then during the life of such one of the “‘now living” children of B as shall then be the youngest one living.’ In this case there is at no time during the term any uncertainty about the identi- ty of the particular life on which its continuance is then depending. So also where an open and a sealed paper were delivered to the trustee, one providing for the disposition of the income during the grantor’s life, and the other, which was not to be opened until bis death, providing for the subsequent disposition. To- gether they constitute one complete instrument, and it 1 See, also, Field v. Field’s Executors, 4 Sandf. Ch. 563, and Boynton »v. Hoyt, 1 Den. 53. * See Woodgate v. Fleet, 64 N. Y. 566 (572). 3 Van Cott v. Prentice, 104 N. Y. 45 (56, 57); Burke v. Valentine, 52 Barb. 412, aff’d, 6 Alb. L. J. 167. 6): SUSPENSION OF POWER OF ALIENATION. ([CH. Il. is of no consequence that the provisions are only re- vealed as they are needed.’ § 98. Eldest or youngest surviving child.—But if the trust is so drawn that any such uncertainty can exist, itis void? As, for example, where a suspension is to continue until the ‘youngest of the testator’s children and grandchildren living at the date of his will and at- taining the age of twenty-one years, should attain that age,” then if the members of the designated class number more than two, the scheme is invalid.2 In the first case just cited, there were thirteen members of the specified class. Designating all the children by letters, beginning with the youngest, with whom we have first to do, as A, and going up to the oldest as M, it will be seen that A’s life does not constitute the measure of the term, for if A should die during the minority of any of the others, the suspension would still continue. Nor does the life of any one or of any two of the others constitute the measure of the term. For though every one of the others should die during A’s minority, the term would still continue till A should come of age. Nor is the term measured by the two lives of A and any other, as B, for if A and B should die during mi- nority, the term would continue till the next youngest surviving minor should come of age. It can indeed be said that if A lives to come of age, then the suspension will cease and his life will prove to have been the measure. But his living is problematical. He may die during B’s minority, and B may die during C’s minority, and still there is no end to the suspension. In short it is impos- 1 Van Cott ». Prentice, 104 N. Y. 45. ° For additional illustrations see Brown ». Evans, 34 Barb. 594; Bean ». Hockman, 31 Barb. 78. * Hawley vo. James, 16 Wend. 61 (120); see, also, Greenland v. Waddell, 116 N. Y. 234 (244); Titus 7. Weeks, 87 Barb. 136. § 100.] ‘“TWO LIVES IN BEING.” 61 sible to point to any particular persons, either simulta- neously or, as in the Van Cott case, in succession, upon whose majority or earlier death the trust must certainly cease. The term cannot, therefore, be said to be meas- ured by any one or two particular minorities or lives, and it follows that the suspension is illegal. § 99. So in another case’ where a trust was to con- tinue until ‘‘the eldest surviving child” (of four) should come of age. Here the court say: ‘‘Suppose the three eldest of the four children living at the tes- tator’s death should die, and the remaining child should, after their death, arrive at the age of twenty- one years, it is clear that by the terms of the will the estate must be kept together and the power of aliena- tion must be suspended during three lives.” § 100. It is to be noticed that this phrase, ‘‘eldest surviving child,” ‘youngest surviving child,” is open to two constructions. The word ‘‘surviving” might mean “surviving at the date of the will or of testator’s death,” or it might mean ‘surviving to reach major- ity.” The latter construction is illustrated in the case just cited, and where the members of the designated class number more than two, it renders the term ille- gal. But with the other construction, the provision is unobjectionable. Thus, if the testator should in un- ambiguous terms designate as the measure of a term of suspension the minority of the youagest of his chil- dren who should be. surviving at his death, the pro- vision would be valid.? For at testator’s death there 1 Jennings o. Jennings, 7 N. Y. 547; Thompson v. Carmichael’s Ex’rs, 1 Sandf. Ch. 387. * Burke 2. Valentine, 52 Barb. 412; James». Beasley, 14 Hun, 520; In re Sand’s Will, 8 N. Y. Supp. 67; 8 c. 20 St. Rep. 850 and cases cited; Neaves 0. Neaves, 87 Hun, 488. See Roe v. Vingut, 117 N. Y. 204; Simpson ». Cook, 24 Minn, 180 (185). 62 SUPENSION OF POWER OF ALIENATION. ([CG. II. would be but one youngest child, and its minority would measure the term of suspension. If it should die before reaching majority, then its death would end the term. In no event could the term extend beyond the minority or earlier death of a certain person capa- ble of identification immediately upon testator’s death. And even though the testator does not employ phrase- ology free from ambiguity, yet if the whole instrument shows that he intended to use the phrase ‘surviving child” as a term descriptive of a specific person, and meant by it “‘surviving either at, or at any time prior to, testator’s death,” and not “surviving after testator’s death, to reach a given age,” it would be valid.t $101. The phrase under discussion would accord- ingly be construed to have the one or the other of its two possible meanings, according to the intent of the creator of the trust; and that intent is to be gathered in accordance with familiar and general rules of con- struction. The case of Drake v. Pell? furnishes an il- lustration of a testator’s use of the words ‘youngest surviving child” as a descriptive phrase, used to desig- nate a particular person, who would certainly be known by it immediately at testator’s death. The meaning of the phrase is not discussed by the court, but a future limitation is sustained as valid, which would necessari- ly have been void, except on the theory that testator intended by the phrase to. designate a specific person. And in another case, where the language was perhaps less open to a charge of ambiguity than the exact phrase under discussion, the Assistant Vice-Chancellor 1 In re Sand’s Will, 3 N. Y. Supp. 67; 8. c. 20 St, Rep. 850, and several cases cited. ? Edw. Ch. 251; Burke ». Valentine, 52 Barb. 412; James ». Beasley, 14 Hun, 520 (see Guggenheimer ». Sullivan, 12 Week. Dig. 541); Eells 2. Lynch, 8 Bosw. 465; Stewart v. McMartin, 5 Barb. 488. § 102.] “TWO LIVES IN BEING.” 63 took it in one sense, and on appeal the Chancellor gave it the other. In that case’ the testator had used the words ‘‘until the eldest child of the said S. M. shall ar- rive at the lawful age of twenty-one years.” S. M. had three children, one of them born after the date of the will. It is said, in the opinion of the court below, that the phrase ‘eldest child” does not mean the eldest living at the testator’s death, but by its true construc- tion refers to the child which should first arrive at age. The Chancellor, however, says:* ‘The fair construc- tion of the fourth codicil is, that the testator referred therein to the eldest child of said complainant (S. M.) at the time of making such codicil, * * * and not the eldest child which she might have who should at- tain the age of twenty-one years.”’? And the Chancellor also here lays down the rule governing the construction of this phrase where the in- tent does not clearly appear, namely: “If the language of the testator is such that it may be construed in two different senses, one of which would render the dispo- sition made of his property illegal and void, and the other would render it valid, the court should give that construction to his.language which will make the dis- position of his property effectual.” § 102. Lives not in being.—The necessity of employ- ing lives “in being” to measure the term of suspension is well illustrated in Schettler v. Smith,’ where a tes- tator created a trust for his son Lawrence for life, and 1 Butler v. Butler. Hoffm. Ch. 347-8. 2 Butler v. Butler, 3 Barb. Ch. 304 (209). 3 See, also, James v. Beasley, 14 Hun, 520. 41 N. Y. 328 (880, “8;” 881, “4th; ” 388 et seg.; 346 et seg.). See, also, on the same point, Tiers v. Tiers, 98 N. Y. 568 (578); Stevens ». Miller, 2 Dem. 597; Lee v. Lee, 2 How. Pr. (N.S.), 76; Mason v. Jones, 2 Barb. 229 (247), aff’d, see 2 N. Y. 327. « 64 SUSPENSION OF POWER OF ALIPNATION. [CH. II. on his death for Lawrence’s widow for her life. Law- rence was then married, but in view of all. the terms of the will, the court held that the testator did not intend, in using the words “wife” and ‘‘ widow,” to refer ex- clusively to Lawrence’s then living wife, but generally to any wife Lawrence might have at the time of his death, and the provision for Lawrence’s wife was de- clared void. And where the same testator made the same provision for his son John, who was then unmar- ried, the same result would no doubt follow,’ though in the case of the trust for John, the opinion of the court on this point was not essential to the general de- cision. § 103. The reason of this rule, of course, is that as the second life is designated merely as that of any widow whom the first beneficiary might leave at his death, the second life might be that of a person not in being at testator’s death. For if the first wife of the Lawrence mentioned above should die, he might then marry a woman born after testator’s death. It is true that he might not do so, but that does not save the trust. The provision must be so drawn that the two lives must certainly be those of persons in being at tes- tator’s death. If, for instance, testator had provided that on and after Lawrence’s death the income should be paid over to the widow, if he should leave a widow who had been born before testator’s death, the objec- tion would have been obviated and the invalidity re- moved. § 104. And in the same case it was intimated that if a trust was created for the life of A, a married man, and then for the life of ‘‘ his wife,” simply, the phrase- 141 N.Y. at 330, “2;” 331, “3d;” 385 e¢ seg. See Stevens v. Miller, 2 Dem. 597. § 105.] ‘*TwWO LIVES IN BEING.” 65 ology would be understood to designate A’s then living wife only, and to create a valid measure for the term.’ On this point the general principles are laid down in Van Brunt v. Van Brunt, where the testatrix created a trust to collect and pay over the rents, income and profits to her (eight) children in equal proportions during their natural lives, and after their decease to their respective wives or husbands during their lives or until they should re-marry. Seven of the children were married at the death of the testatrix. The court say: ‘‘The words husband and wife, as first used in the will, would naturally and ordinarily refer to a husband or wife living at the death of the testatrix. That meaning and the purpose evinced by it, ought not to be surrendered and changed with the consequence of a destruction of a trust, unless other language of the will clearly and un- mistakably points to a different meaning, and estab- lishes a different intention. The use of the indefinite article, and the expression ‘a husband or wife,’ does not necessarily, or even fairly indicate an intention to provide a second life interest in a wife or husband becoming such after the death of the testatrix.” In Schetiler v. Smith,’ “‘ the language of the will was differ- ent, and provided for the unlawful limitation, by ex- pressions definite and precise in their application, and which could bear no other meaning.” § 105. And the court further says‘‘ We do not think the construction should be changed when we come to the’ case of the unmarried son, for, though the trust was divisible, it was created at once for all] the children, and by a common description and expression.” It appears 1 Schettler ». Smith, 41 N. Y. at 338. 2111 N. Y. 178 (184). 341 N. Y. 328. 66 SUSPENSION OF POWER OF ALIENATION. (CH. ll. difficult to reconcile this holding in regard to the share of the unmarried son with the principles laid down. The construction applied in the case of the other chil- dren was that as they each had a wife or husband living at testator’s death, his words should be taken to refer to them unless the will as a whole furnished reasons for a contrary view. This construction it is impossible to apply in the case of the unmarried son, as the facts lay no basis for its application. To hold the designated measure of the term in the case of his share illegal would not have been to reverse the construction already illustrated in the treatment of the other shares. The outcome of the several cases cited may be sum- med up thus: § 106. (1.) Where a term is measured by the lives of two persons, one of whom is specified and the other is merely designated as the wife or husband of the first, and the person specified has a wife or husband living at the date of the will and at testator’s death, the pre- sumption arising from the mere use of the terms hus- band or wife is that testator refers to the husband or wife then living. This view will be taken unless the contrary intent is clear. § 107. (2.) But if the contrary intent is clear, and the words refer to any wife or husband whom the specitied person may leave surviving at the time of his or her death, then, for the reasons stated in Schettler v. Smith, the term is illegally measured. For further authorities on this class of cases, see Gray, Rule against Perpetuities, § 214, and cases cited; Marsden, Rule against Perpetuities 103, 175, § 108.] ADDITIONAL MEASURES OF THE TERM. 67 6. Additional Measures of the Term. § 108. But although a term of suspension must be measured only by a life or lives in being, yet there is no objection to employing any other measures, so long as they cannot extend the term beyond the two lives. Thus, while it is illegal, for instance, to attempt to create a suspension for a specified period without refer- ence to any lives, or until a specified date,’ or for twen- ty-one years from the date of the will,’ or for thirteen minorities,’ or for more lives than two,> or until from the rents, a certain mortgage on the trust property shall be paid off,® or until a partition shall be effected,’ or until certain legislation be secured,® or until the youngest of several to reach majority, shall do so, yet any one of these provisions would have proved unob- jectionable, if only there had been thrown around it a controlling provision that in any event the trust must 1 Rice o. Barrett, 102 N. ¥. 161 (164); Tucker v. Tucker, 5 N. Y. 408 (417); Smith vo. Edwards, 88 N. Y. 92; Beekman v. Bonsor, 23 N. Y. 298 (316); Phelps’ Ex’r ». Pond, 23 N. Y.69; Rose v. Rose, 4 Ct. Ap. Dec. 108 (118); Bean v. Bowen, 47 How. Pr. 306; DeWolf 2. Lawson, 61 Wis. 469; Moore v. Moore, 47 Barb. 257; Morgan v. Masterton, 4 Sandf. 442 (449). ? DeKay ». Irving, 5 Den. 646 (652). 3 Hone’s Executors 7. Van Schaick, 20 Wend. 564; Farrand «. Pettit (Mich.), 48 N. W. Rep. 156; and see Lee v. Tower, 124 N. Y. 370; 8. c. 26 N. E. Rep. 948, giving General Term opinion approved in court above. ‘ Hawley v. James, 16 Wend. 62. * Leavitt 0. Wolcott, 95 N. Y. 212 (218); Persons v. Snook, 40 Barb. 144 (155); Ward v. Ward, 105 N. Y. 68; Colton v. Fox, 6 Hun, 49; Thorn ». Coles, 8 Edw. Ch. 330; McSorley ». Leary, 4 Sandf. Ch. 414; Shipman ». Rollins, 98 N. Y. 811 (330); Richards 0. Moore, 5 Redf. 278; Hobson 2. Hale, 95 N. Y. 588 (597, 610, 612, 616); Storm v. Storm, 4 St. Rep. 670: (aff'd 118 N. Y. 646); Matter of Russell, 5 Dem. 388; Fowler v. Ingersoll, 19 St. Rep, 214; Giraud ». Giraud, 58 How. Pr. 175; Bean », Hockman, 31 Barb. 78; Van Vechten +. Van Veghten, 8 Pai. 104; Jennings o, Jennings, 7 N. Y. 547; Schnarr o. Henning, N. Y. Daily Reg. Dec. 23, 1882. 6 Killam v. Allen, 52 N. Y. 605. 7 Henderson v. Henderson, 113 N. Y. 1 (15). 8 Levy v. Levy, 33 N. Y. 97. * Levy o. Hart, 54 Barb. 248. 68 SUSPENSION CF POWER OF ALIENATION. (CH. II. terminate within one or two designated lives. Thus, for instance, a valid suspension may be created to con- tinue for ten years, unless sooner terminated by the death of two designated persons,” or for twenty-five or fifty years unless sooner terminated by the death of a designated person.? Anda trust to receive rents and profits and pay them to a beneficiary named, during the minority of several children, is valid, as it must termi- nate by its terms either before the death of the benefi- ciary, or, by failure of its object, at her death, and so is measured by one life, or less.* § 109. And a suspension may be created which may perhaps continue through three designated lives, if only it be provided that it must in any event cease at the end of two specified lives out of the three. Sucha provision is discussed at length, although not in issue, in the Bailey case.’ In that case the testator created a trust for a number of relatives, the term to be measured by the lives of two strangers, Thomas and Webster. He also gave to his wife a life interest in a house not covered by the trust, and provided that upon her death it should become a part of the property held in trust, and be disposed of in the same way. It was contended that this scheme involved, in the case of the house, an unlawful suspension for three lives. First, it was said, came the widow’s life, and after that might come the lives of Thomas and Webster. But, as is pointed out "Levy 0. Hart, 54 Barb. 248; DeKay ». Irving, 5 Den. 646 (653); Hunter v. Hunter, 17 Barb. at 90. 7 Phelps’ Executor v. Pond, 23 N. Y. 69; see Simpson 2. Cook, 24 Minn. 180 (184-5); McCosker ». Brady, 1 Barb. Ch. 329 (342). 3 Oxley v. Lane, 35 N. Y. 340 (845, 357); see Matteson 2. Matteson, 51 How. Pr. 276. * Provost v. Provost, 70 N. Y. 141; and see DePeyster », Beekman, 55 How. Pr. 90. ° Bailey v. Bailey, 97 N. Y. 460. §$110.] ADDITIONAL MEASURES OF THE TERM. 69 by the court, a closer examination shows that no sus- pension was possible beyond the two lives of Thomas and Webster. For if at the end of their lives, the widow were already dead the entire property, including the house, would at their death, be released from the suspension. And if, on the other hand, at the end of their lives, the widow were still living, then (as it would be thenceforth impossible that the house should ever be diverted into the general trust fund), the remainder would vest absolutely in the remaindermen, and they and the widow would among them hold the entire fee with power to convey absolutely. Thus, whether the widow did or did not survive Thomas and Webster, still at their death all parts of the absolute fee would cer- tainly vest somewhere. $110. But in another case,’ where the provisions were in many respects very similar to those just dis- cussed, the application of the same principles necessa- rily led to a decision that the term was invalid. In that case, two trusts were created. The term of one, which we will speak of as the “‘ first’ term, was measured by two designated lives, A and B, or the earlier lapse of ten years. The term of the other, which may be spoken of as the “second” term was measured by the life of ©, the beneficiary, and if she died during the continuance of the ‘“‘first’’ term, her fund was to fall into the first trust fund and continue suspended throughout the first term. But if C died after the end of the first term, her fund was upon her death to be at once distributed. It will be noticed that the ‘‘ second”’ term is not measured solely by C’s life, for after C’s death it is still to run on till the death of A and B or the earlier lapse of ten years. Nor is it measured solely by the life of A and B or the ' Phelps’ Executor v. Pond, 23 N. Y. 69 (79). 70 SUSPENSION OF POWER OF ALIENATION. [CH. II. earlier lapse of ten years, for after the end of that term, it is still to run on through the life of A, if still living. And here lies the distinction between this and the Bailey case. For in the Bailey case, while if the lite tenant died the property would continue suspended dur- ing the first term, yet if the first term came to an end during the life of the lite tenant, the suspension at once ceased. In the Phelps case, therefore, the suspension, for lack of being certainly bounded by two lives, was held void. § 111. This principle appears to have been disregard- ed in Moore v. Moore,' where it was held that a trust to receive the rents and pay them to A for not more than three years, when the principle should go to A absolute- ly if he should for two years have lived a sober, moral and industrious life, and otherwise to others, is void as fixing a term of years for its duration. It is evident, however, that such a trust term could not possibly ex- tend beyond the life of the first-named beneficiary, and that if he had at his death during the three years, failed to comply with the condition, the land would have been released from the trust. There were, however, in that case, numerous other reasons which, though considered subsidiary, were ample to vitiate the trust. “7. Alternative Measures of the Term. § 112. And not only does the fact that a term is meas- ured by two lives, allow the creator of the suspension to employ, within the limit of those lives, any other ad- ditional measure whatever, but it also allows him to provide within those same limits for alternative schemes of measurement. 147 Barb. 257. §114.] LIMITATIONS OF THE REQUIREMENT. 1 § 113. Thus a grantor in a trust deed may provide first, that if she is unmarried at the end of one year, the property shall be conveyed to her; but secondly, if she is then married, it shall not be conveyed until her hus- band’s death; but thirdly, if she die before marriage, or before her husband, it shall be conveyed to such per- son as she shall by will appoint; or fourthly, if she die intestate, it shall be conveyed to her heirs. The sus- pension created by this trust may therefore continue either for one year, or for the life of a person who is to become ascertained, if at all, within one year, but in any event it must be cut short by the death of the grantor.’ And where, of two alternative dispositions each depending on a separate specified contingency, one is void for suspension beyond two lives in being, and the other valid, the latter will not be vitiated by the in- validity of the former. ‘‘ But for the prohibition of the ° statute both dispositions would have been lawful and valid, and either. would have taken effect according to the happening of the events giving it vitality. The statute comes in and avoids one of the dispositions, leaving the other unaffected by its provisions.” ? 8. Limitations of the Statutory Requirement. § 114. Strict, however, as is the construction of the rule requiring that the term be measured by two lives, the courts do allow a certain amount of leeway under some circumstances. Thus it is held that a direction in a will that the sale of testator’s real estate should be made at public sale after three weeks’ notice by publi- cation in newspapers, does not suspend the power of alienation within the meaning of the statute, because 1 See Genet v. Hunt, 113 N. Y. 158. 2 Schettler v. Smith, 41 N. Y. 328 (835 e7¢ seq.) 72 SUSPENSION OF POWER OF ALIENATION. [CH. II. itisamere prudential arrangement to secure a fair sale, and prevent a sacrifice, and only an incident to the con- version.of the property, and the requirement is both usual and reasonable. The statute of perpetuities is not violated by directions which may involve some de- lay in the actual conversion or division of the property, arising from the necessity of giving notice or doing other preliminary acts. Such delays are not within the reason or policy of the statute.’ § 115. And so if a testator, after making a void dis- position of his property, provides an alternative method of disposition in the event that the first should be ad- judged or prove invalid or its execution be impossible, either by judicial decision or from any other cause, this latter disposition will not be void on the ground of at- tempting to effect a suspension for an indefinite period, namely, until a judicial decision is reached on the valid- ity of the first disposition. The judgment does not ereate the validity or invalidity. The second scheme of disposition takes effect instanter on testator’s death, if as a matter of fact the first is void. The subsequent decision of the court does not effect any result at its own date other than to ascertain what did happen at testator’s death.’ § 116. It is also to be noticed that the statute is aimed only at the suspension of the power of alienation by the terms of the instrument, and not such as neces- sarily arises from the disability of infancy, or from other causes outside of the instrument.® "Robert v. Corning, 89 N. Y. 225 (288); and see Cruikshank v. Home for the Friendless, 113 N. Y. at 351. ? Cruikshank v. Home for the Friendless, 118 N. Y. 337. * Beardsley o. Hotchkiss, 96 N. Y. 201 (214); Everitt 2, Everitt, 29 N. Y. 39 (77); Livingston v. Tucker, 107 N. Y. 549 (552); see Craig o. Craig, 3 Barb. Ch. 76. CHAPTER III. SUSPENSION OCCASIONED BY CONTINGENCIES. I. ContTINGENT Future Estates. II. Contincent REVERSIONS. III. Contincent InTERESTS, RIGHTS AND POSSIBILITIES. . Possibility of Reverter. . Right of Entry for Condition Broken. . Mortgages. . Annuities and Other Charges on Land. . Docketed Judgments. . Contracts Relating to Land. . Escheat. . Covenants and Restrictions. DHIOaAPwWNH re § 117. The statute says that the absolute power of alienation shall not be suspended by any limitation or condition whatever for a longer time than the statutory period. This provision has to do, of course, only with such kinds of limitations and conditions as frum their nature are capable of occasioning suspension. But it will be noticed that in terms it merely sweeps within the circle of its prohibition all limitations and condi- tions whatever,’ without enumerating the particular kinds to which it really applies, or specifying which they are. § 118. The Revisers, in their Notes, attempted ap- parently to specify, so far as concerns real property, a particular class of limitations with which alone, in their view, the statute had to do, for they say: ‘‘An estate is never inalienable unless there is a contingent remainder, and-the contingency has not yet occurred. This is the 1 See Yates v. Yates, 9 Barb, 324 (347). 74 SUSPENSION BY CONTINGENCIES. (CH. III. meaning of the law prohibiting perpetuities, and is the effect of the definition in § 14.” But the courts have recognized the wider application of § 14,” and there are now three acknowledged ways in which suspension of the power of alienation of real property may be occa- sioned, viz.: $119. I. Future contingencies.—When inalienability or suspension of the absolute power of alienation ex- ists in this class, it arises from uncertainty over the persons who may become entitled to the future estate or interest if it ever vests. While such a state of things continues it is of course impossible for any per- son or persons, singly or in union, to convey an abso- lute fee. § 120. IL. Estates vested in trustees, subject to certain express trusts which constitute an absolute prohibition on any sale by the trustee during the term of the trust. His inability to convey—or the suspension of the abso- lute power of alienation—arises out of the fact that the law forbids him to convey. § 121. III. Estates subject to a power in trust which temporarily prohibits a sale, where the title is vested in persons not able to convey the land and thus destroy the power. We will now take up the first of these three classes. 5 Stat. at Large (Edmonds), Appendix, 307. See, also, Kane ». Gott, 24 Wend. at 662; and opinion of McCoun, V.C., Lorillard v. Coster, 5 Pai. at 188 et seq. > See Kane v. Gott, 24 Wend. at 662. Also opinion of Nelson, Ch. J., in Hawley »v. James, 16 Wend. at 121; and Coster v. Lorillard, 14 Wend. at 305-6; 8 c. 5 Pai. 218, 222 et seq.; Radley v. Kuhn, 97 N. Y. 26; Robert 0. Corning, 89 N. Y. 225 (235); Smith o. Edwards, 88 N. Y. 92 (102 et seq.); Leonard ». Burr, 18 N. Y. 96 (107); and, as to powers in trust, Radley »v. Kuhn, 97 N. Y. at 34, and see post, Chapter V. § 123.] SUSPENSION BY CONTINGENCIES. 75 § 122. It is provided by the Revised Statutes that “the absolute power of alienation shall not be sus- pended 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 ;”! that ‘‘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,” ? and that ‘‘such power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed.” * § 123. Now the first thing to be noticed in these pro- visions is that they refer exclusively to the matter of alienability of the absolute fee. We have already as- certained the meaning of the term absolute fee, and found it to mean an indefeasible fee. And all that this provision calls for is that the capacity of conveying such a fee shall not be suspended beyond the statutory period, and the all-sufficient test furnished by the stat- ute is the question whether, in any given case, there are persons in being by whom an absolute fee in possession can be conveyed. In applying this statutory test we find that the situations in which the question of sus- pension arises divide themselves into three classes, namely: first, those where there is a contingent future estate ; secondly, where there is a contingent estate in reversion; and thirdly, where there is only a contingent interest, right, possibility or chance, which may some day result in divesting the estate which is now vested. First, then, we will now examine the case where there is a contingent future estate. 11 B.S. 723, § 15; Mich. G.S. $8 5531, 5532; Minn. G. S. 8§ 3976, 3985; Wis. A. 8. §§ 2039, 2040. With one exception, see ante, § 62. °1 B.S. 723, § 14; Mich. G. 8. § 5530; Minn. G. S. § 3975; Wis. A. 8. § 2088. 76 SUSPENSION BY CONTINGENCIES. [CH. III. I. Contingent Future Estates. § 124, There are, as we have heretofore seen, two classes of contingent future estates, the distinction be- tween which is here of vital consequence. (1.) The first class comprises those that are ab- solutely alienable. These exist where the contingency arises wholly from the uncertainty of the event, and where the person who, either personally or by his heirs as such, will take the remainder if it ever vests, is definitely and absolutely ascertained. Here, although the estate itself is contingent, the right to it, if it vests, is a vested right. Thus, where J is to take a fee if M dies without leaving issue, J’s estate is contingent during M’s life. But the contingency arises from the uncertainty of the event—namely, M’s death without leaving issue—and not from uncertainty about the per- son. Therefore, although the estate itself is contin- gent, yet the right to it, if it ever does vest, is properly said to be a present vested right.’ § 125. In such a case if J dies before M, the right descends to his heirs. Had he chosen he might have devised it. And during his life he might have conveyed it. In the latter case, as the right was vested in him, his conveyance of it would be binding on his heirs, and if the contingency of M’s death without leaving issue ever should afterwards happen, the remainder would not vest in J or his heirs, but in the person to whom J had conveyed, or in his heirs or grantees or devisees. J, therefore, could alienate his remainder absolutely. § 126. It is obvious that when a contingent remain- der is of this absolutely alienable class, it may be con- 1 Hennessy ». Patterson, 85 N. Y. 91; 2 Washburn on Real Property (5th ed.), 775 et seg. § 127.] CONTINGENT FUTURE ESTATES. 77 veyed to the same grantee to whom the owners of the vested estates have conveyed. And this grantee by thus receiving absolute conveyances of all the estates which together make up the entire fee, would thus combine in himself the absolute ownership of the fee. So also, in the case just supposed, instead of conveying to the common grantee, J might release to the person, holding the vested estate, who would thus acquire an absolute fee which could be conveyed absolutely to any one. Thus it appears that where the contingency arises solely from the uncertainty of the event, it is absolutely alienable by the ascertained person.! In other words, applying the statutory test, there are persons in being who can convey an absolute fee in possession. § 127. (2.) There is, however, a second class of contin- gent future estates where the contingency arises either wholly or partly out of the fact that the person is not yet definitely and finally ascertained. Here there is no one who can convey so as to cut off future rights in the as yet unascertained persons, and in the words of the statutory test there are therefore no persons in being who can convey an absolute fee in possession, and so the absolute power of alienation is suspended.’ ? The contingent future estate is of course alienable only “according to its nature.” Thus if it is a contingent estate for life, it may be alienated, but the death of the person by whose life it was measured, whether before or after it vested in possession, would still terminate it, just as if it had not been conveyed. See the opinion in Hennessy v. Patterson, 85 N. Y. 91, and the second part of the opinion in Moore ». Littel, 41 N. Y. 66, beginning at p. 88. See, also, Kelso 2. Lorillard, 85 N. Y. 177 (184); Ham v. Van Orden, 84 N. Y. 257 (270). * Kilpatrick v. Barron, 54 Hun, 322; Graham », Fountain, 2. N.Y. Supp. 598. Suspension may be caused by an express trust and also by a future contingency, both provided for in the same scheme. Haynes v. Sherman, 117 N. Y. 488 (489). 78 SUSPENSION BY CONTINGENCIES. [CH. III. § 128. The principles just stated apply with equal force whether the future estate be a ‘‘remainder” or not. Thus where B has no son, a devise by A, simply to B’s first-born son, with no devise of a precedent estate, would create a future contingent estate not a remainder. The contingency here arises out of the fact that the event and the person are both uncertain. The person being uncertain, the contingent future es- tate is inalienable. Under the terms of Rule I it is sufficient if this state of things must terminate within two lives. In the case supposed, it must terminate within one life, for at B’s death the question of the birth of a son is settled finally... If he has then had such a son, the contingency ceases at B’s death, and the fee becomes absolute and indefeasible in the testa- tor’s heirs. So where there is a devise of a future es- tate not a remainder, to A and his heirs, whenever a certain village shall become incorporated, and A is a living person, here the contingency arises solely from the uncertainty over the event; and the right to that contingent future estate in case the village ever is in- corporated, becomes a ‘“‘ vested right,’’ in A, to a con- tingent estate.” He can alienate it absolutely. There is therefore no suspension whatever of the absolute power of alienation. Absolute vesting may be indefi- nitely postponed, but the law does not insist on vesting, except in the case of ‘“‘rémainders.” There are always persons in being, namely, the heirs of the testator, and A, or his heirs, who by uniting can convey an absolute fee in possession. * Where a future estate is limited to heirs, or issue, or children, post- humous children are entitled to take, in the same manner as if living at the death of their parent. 1 R. 8. 725, § 80; Mich. G. S. § 5546; Minn. G. 8. § 8971; Wis. A. S. § 2054. * Compare with Leonard v. Burr, 18 N. Y. 96, where the future estate was a remainder. § 131.] POSSIBILITIES OF REVERTER. 19 II. Contingent Reversions. § 129. Estates in reversion may be vested, in which case they are unobjectionable under either Rule. They may, however, be contingent. Thus a devise to A for life, remainder to B for life, and upon B’s death re- mainder in fee to B’s issue then surviving. B has no issue. The remainder to them is contingent. There remains in testator’s heirs a contingent reversion in fee dependent on the death of B without heirs... Such a reversion is an expectant estate, and is alienable, de- scendible and devisable.? Its devisability is illustrated in the case cited* Not being a ‘‘remainder”’ it does not fall within the scope of Rule II. Being alienable, the existing heirs of the grantor or devisor, may always join with the holder of the vested and defeasible estates, and convey an absolute fee in possession.’ It is there- fore unobjectionable under Rule I. III. Contingent Interests, Rights and Possibilities. § 130. In addition to the expectant contingent es- tates which we have just been considering, there are also certain future contingent interests, rights and pos- sibilities, which are not estates, but constitute a chance or possibility of some day acquiring one. We will now examine them. § 131. (1.) Possibility of reverter—Where a determ- inable fee is granted, there is a chance that it may some day return to the grantor or bis heirs. This chance is 1 Floyd v. Carow, 88 N. Y. 560. 271K. S. 725, § 85; Mich. G. S. § 5551; Minn. G. 8. § 3964; Wis. A. S. § 2059. 8 Floyd v. Carow, 88 N. Y. 560. 4 Woodgate v. Fleet, 44 N. Y. 1 (and see reporter’s foot note, p. 20). 80 SUSPENSION BY CONTINGENCIES. (CH. III. not an estate or an interest.’ It is called a possibility of reverter. One class of these possibilities, and that to which the name ‘‘ possibility of reverter” is most appropriately applied, exists where an estate is granted on limitation, that is, to continue until some act is done, or some event occurs; or so long as some situation con- tinues; or, during its existence, &c. Here the estate runs on unbroken unless the event happens or the situ- ation changes ; but it may come to an end.’ It is clear that such a contingency may be of a most remote char- acter. It may happen a hundred years from now, or two hundred, or never. Thus an estate to continue until Gloversville shall be incorporated as a village, might, supposing Gloversville to be then unincorporated, run on indefinitely ;? it is conceivable that the indus- tries of the place might decline, and its population de- crease, and it might dwindle to a mere hamlet, and might never become incorporated, and the estate granted would then never come to anend.’ And it is equally conceivable that incorporation might be long postponed, but finally secured at a remote date. In that case, the estate granted would thereupon terminate, and the original grantor, or his heirs, would then be again in possession.‘ Nevertheless, such a future contingency, though it may continue indefinitely, is hostile to neither of the two Rules. For the possibility may be released.> And wherever any future estate, right, interest or pos- Sibility can be released and thus extinguished, its ex- ' Challis on Real Property, 63; Vail v. L. I. R. R. Co. 106 N. Y. 283. ? Leonard »v. Burr, 18 N. Y. 96. 31 Washburn on Real Property, 5th ed. 95. 4 Leonard ov. Burr, 18 N. Y. 96; see Thayer v. McGee, 20 Mich. 195. * Co. Litt. 291 b; Id. 297 b; Walsingham’s Case, 2 Plowd. 557; see, also, Pearse v. Killian, McMull. Eq. 231; Gerard on Titles to Real Estate (3d ed.), 118; Storer ». Eyclesheimer, 4 Abb. Ct. App. Dec. 309; Miller ». Emans, 19 N. Y, 384. § 133.] ‘RIGHT OF ENTRY. 81 istence does not operate to suspend the absolute power of alienation. For while such a state of things con- tinues there are always persons in being who can con- vey an absolute fee.’ §$ 132. (2.) Right of entry for condition broken.—This is a second form’? of the possibilities of reverter just dis- cussed. Here an estate is granted, and vests, subject to being cut off or divested by the occurrence or non- occurrence of some condition subsequent.’ In case of such termination, no effect is produced unless the grantor or lessor chooses to re-enter. He may waive his right, or by re-entry, or suit in ejectment, repossess himself of the present estate in fee simple absolute, as if no grant or lease had been made.’ § 133. There are many cases in the reports illustrat- ing these estates on condition. Thus, there may be a grant in fee, on condition that the grantee, his heirs and assigns shall not mannfacture or sell liquor on the premises,® and the court in the case cited, refer to a number of other cases where conditions that a school house should not be erected on the premises, or a dis- tillery, or a blast furnace, or a livery stable, or a machine shop for iron manutacture, or a powder magazine, or a hospital, or a cemetery, have been held valid. Here it 1 Ante, § 64. 2? Challis on Real Property, 63; Nicoll v. N. Y. &@ E. R. R. 12 N. Y. at 182; but the name ‘“‘ possibility of reverter” is here hardly appropriate. 3 Vail v. L. I. R. R. Co. 106 N. Y. 288; Nicoll » N. Y. & E. R. R. Co. 12 N. Y. 121. 4 $heph. Touch. 153; Co. Litt. 202 a; Horner v. C. M. & St. P. R. Co. 38 Wis. 165. 5-Plumb v. Tubbs, 41 N. Y. 442; Smith v. Barrie, 56 Mich. 315; O'Brien v. Wetherell, 14 Kan. 616. 6 Collins v. Marcy, 25 Conn. 242; Craig v. Wells, 11 N. Y. 315; Gray v. Blanchard, 8 Pick. 284; Sperry v. Pond, 5 O. 387; Nicoll o. N.Y.& E.R. R. Co. 12 N. Y. 121. See, also, Vail v. L. I. R. R. Co. 106 N. Y. 288, and cases 6 82 SUSPENSION BY CONTINGENCIES. [CH. TI. is also evident that the happening of such conditions may be indefinitely or even permanently postponed. The land conveyed, for example, subject to a condition against the sale of liquor, might remain in the hands of the grantee and his descendants or grantees for a hun- dred years, or more, and then, on breach of the condi- tion, and entry, return to the heirs of the original grantor. If a remainder over were limited on the hap- pening of such a contingency it would be void, under Rule II, because contingent. But the chance that at some remote period the heirs of the grantor may acquire a right to enter does not present any violation of Rule I, and is a valid provision. The reason is that the con- dition does not interfere with the power of conveying an absolute fee. For though the right of entry is, by itself, inalienable,’ it has been held in New York that an attempted assignment of it utterly destroys and cited ; DePeyster v. Michael, 6 N. Y. 467; Mandelbaum v. McDonell, 29 Mich. 78. And see, also, Adams». Perry, 48 N. Y. top of p. 490 and bottom of p. 496; Rose v. Hawley, 118 N. Y. 502; Erwin v. Hurd, 13 Abb. N. C. 91; Allen v. Howe, 105 Mass. 241; Horner o. Chicago, &c. Co. 88 Wis. 165; Mills v. Evansville Seminary, 58 Wis. 185; Barrie . Smith, 47 Mich. 130; Gibert v. Peteler, 38 N. Y. 165. In this last case it is held that undera condition or even a mere covenant in a deed providing against certain con- structions which may be noxious or offensive to neighboring inhabitants, on breach those who have suffered from it. though not parties to the deed, would be afforded relief in equity. But this relief would be only by in- junction. Barrow »v. Richard, 8 Pai. 851; Brower v. Jones, 23 Barb. 153; Gibert v. Peteler, 88 N. Y. 165 (168); Nicoll ». N. Y. & Erie R. R. Co. 12 N. Y. 121; Craig o. Wells, 11 N. Y. 815 (823); Towle v. Remsen, 70 N. Y. 308 (812); Fonda o. Sage, 46 Barb. 108. The only persons who could enter or bring ejectment to recover the land itself, would be the grantor or his heirs. And their right of re-entry for breach could be released by them. So also the right to enforce the restrictions in equity might be released by the persons entitled to enforce them. 1 Co. Litt. 214; Williams v. Jackson, 5 Johns. 489; Nicoll v. N. Y. & E. R. R. 12 N. Y. 121 (131-2); as to transfer of condition in case of a lease see Van Rensselaer v. Hays, 19 N. Y. 68; Van Rensselaer ». Dennison, 35 N. Y. 393; Cruger v. McLaury, 41 N. Y. 219; Van Rensselaer »v. Ball, 19 N. Y. 100; Same v. Slingerland, 26 N. Y. 580; 1 R. 8. 748, §§ 23, 24, and 25. § 135.] CHARGES ON LAND. 83 extinguishes it. However this may be, the grantor or his heirs may release to the holders of the defeasible fee, and thus extinguish the contingency,” or may unite with them in a conveyance.’ § 134. (8.) Mortgages furnish a mode by which, in case of default, the estate of the mortgagor may be cut off and that of the mortgagee substituted in its place, and this possibility of devolution may continue through a long period unmeasured by lives. But they may al- ways be released.* The mortgagor and the mortgagee are persons in being who can by uniting convey an ab- solute fee.’ Of course the absolute ownership of the mortgage itself, as collateral for the principal secured by it, may be suspended, as in the case of any other property.® § 135. (4.) Annuities and other charges on land.—-All charges on land create, in their nature, a possibility that 1 Underhill 2. 8. & W. R. R. Co. 20 Barb. 455; Rice v. B.& W.R R. 12 All. 141; see 1 Smith’s Leading cases (9th Am. ed.), 155; compare Williams o. Jackson, 5 Johns. 489. 2 Co. Litt. 291 b, Id. 297 b; Hilliard on Real Property, 588, § 27; Tiede- man on Real Property, § 278; Com. Dig. (Release B. 8); R. Jon. 17; Shep. Touchst. 322; Miller ». Emans, 19 N. Y.384; see Props. of Church ». Grant, 8 Gray, at 148; Sharon Co. v. City of Erie, 41 Penn. 341; note to Cross 0. Carson, 44 Am. Dec. 742-4; Williams on Real Property, 277; Gerard on Titles to Real Estate (8d ed.), 118; Storer v. Eyclesheimer, 4 Abb. Ct. Ap. Dec. 809; Tobey v. Moore, 130 Mass. 448. 31 Smith’s Leading Cases (9th Am. ed.), 154, and cases cited. Where a testator devises land to the same person who would take it by descent, and annexes a condition, and makes no other disposition over in case of breach, the condition is void, as the only person who could enter for breach would be the same one who would hold if there were no breach. Newkerk v. Newkerk, 2 Cai. 845. 4 See Gilbertson v. Richards, 5 H. & N. 453-4, 459. » «Where there isa judgment, mortgage, or other charge of the like nature, the incumbrance may be extinguished by payment or release. The owner of the land, by uniting with the incumbrance creditor may convey an absolute fee in possession.” Opinion of Bronson, J., in Hawley v. James, 16 Wend. 61, at 179; also see 8, c. p. 259. 6 Harris v. Clark, 7 N. Y. 242 (244, 260). 84 SUSPENSION BY CONTINGENCIES. [CH. 1iI. it may some day be necessary to sell the land charged, in order to pay the charges. This would divest the legal owner of bis title to the land as such. But wherever an annuity is created, it may in any event, be provided for by purchasing it with a lump sum subtracted from the principal, and thus any possible objection under the Rule may be obviated.'’ And charges are also alienable and releasable.” § 136. (5.) Docketed judgments.—These may at any time be extinguished either by payment or release* § 187. (6.) Contracts relating to land and capable of spe- cific enforcement in equity. A contract for the sale of land a year after its execution, puts into the hands of the proposed grantee, as between the parties, the right to enforce the transfer of the title to him after a period not measured by lives. But he may at any time release his rights under the contract, leaving the proposed grantor with the absolute fee. § 138. (7.) Hscheat.—There are instances where per- sons incapable of holding land, as against the State, may nevertheless take and hold until office found. In the meantime the estate is vested but there-is a contin- gency, the continuance of which is not measured by lives, that the State may enforce its rights and divest the title. This has not been regarded as objectionable ' Gott v. Cook, 7 Pai. at 543; McGowan 2. McGowan, 2 Duer, 57; Griffen v. Ford, 1 Bosw. 128 (144). ” Maurice v. Graham, 8 Pai. 483; Griffen ». Ford, 1 Bosw. 128 (148); Lang 2. Ropke, 5 Sandf. (S. C.) 863 (370); Hunter v. Hunter, 17 Barb. 25 (90); Mason v. Jones, 2 Barb. 229 (247), affd. see 3 N. Y. 375, and sce 2 N. Y. 827-8. ’ Ante, § 185, note. § 141.] COVENANTS AND RESERVATIONS. 85 under the rule against suspension. The State can al- ways release its right.’ § 139. (8.) Covenants and reservations, and easements, imposing restrictions upon property for the benefit of ad- jacent lands, having respect to light, air, ornamentation, or the exclusion of occupations which would render the entire property unsuitable for the purposes to which it could be most advantageously devoted, are not void.’ Except in the case of such covenants as might lead to shifting of title in any way in case of breach, these pro- visions or burdens do not tend to effect any future contingency. Apart from other reasons it suffices here that they may always be released by the persons ben- eficially interested.2 They are incidentally mentioned here because sometimes classed with the other interests and rights already discussed. § 140. The same is true of other restraints on the use of property, apart from the question of benefit to adja- cent lands.’ § 141. The statutory prohibition against suspension of the absolute power of alienation, beyond the statutory period, extends to ‘‘any limitation or condition what- ever.” Restrictions upon the alienation of real proper- ty by its absolute owner are within these terms, and must be confined within a term measured by lives.’ In 1 Wadsworth v. Wadsworth, 12 N. Y. 376 (379, 381); Wright o. Saddler, 20 N. Y. 320 (329). * Trustees v. Lynch, 70 N. Y. 440 (446). 3 See Trustees v. Lynch, 70 N. Y. 440 (at 452). 4 Tallmadge v. The East River Bank, 26 N. Y. 105; Hill o. Miller, 3 Pai. 254; Trustees of Watertown v. Cowen, 4 Pai. 510; Barrow v. Richard, 8 Pai. 351; Trustees v. Lynch, 70 N. Y. 440; Curtiss ». Ayrault, 47 N. Y. 73; see 18 Abb. N. C. 105, note. ® For a very able and learned discussion of this subject see the opinion in Mandelbaum v7, McDonell, 29 Mich. 78 (86); see also Hartung v. Witte, 59 86 SUSPENSION BY CONTINGENCIES. [CH. III. Mandelbaum v. McDonell,' Christiancy, J., says, that the question of the validity of even partial restrictions on the right of sale by the owner of the vested estate, as, for instance, restriction against sale to a particular person (Litt. § 361); or to any except certain persons, (Doe v. Pearson, 6 Hast, 173) is not here of interest, and that even if valid, such restrictions do not for a moment suspend the absolute power to alienate the fee, fora sale may be made to a person not included under the restriction. It would appear open to a difference of opinion, however, whether the power to sell could in such a case be said to be absolute. Wis. 285, Bridge v. Ward, 35 Wis. 687; Greene v. Greene, 125 N. Y. 506 (512). ' 29 Mich. 78. CHAPTER IV. SUSPENSION OCCASIONED BY EXPRESS TRUSTS. 1. Creation of Express Trusts. (1.) By Will. (2.) By Deed. (3.) Declarations of Trust. (4.) Essentials. (5.) Non-Essentials. . Termination of Express Trusts. (1.) By Express Limitation. (2.) By Failure of Purpose. . The Title of the Trustee. The Interest of the Beneficiary. . Where the Same Person is both Trustee and Beneficiary. . Tenancy of the Beneficiaries. A. Where the Intent is Shown. B. Where no Intent is Shown. (a.) The Common Law Presumption of Joint Tenancy. (8.) The Statutory Presumption of Tenancy in Common. (1.) Real Property. (2.) Personal Property. (c.) The Presumption in Case of Trusts. 7. Two Lives in Being. 8. The Four Classes of Express Trusts. (1.) Trusts to Sell. (2.) Trusts to Sell, Mortgage or Lease. (3.) Trusts to Receive and Apply Rents. (4.) Trusts for Accumulation. 1. When Accumulation Must Begin. 2. For Whom Accumulation may be Made. 3. How the Term Must be Measured. 4. When the Term Must End. wo Oe oo § 142. As we have already seen, suspension of the absolute power of alienation exists where there are no persons in being by whom an absolute fee in possession ean be conveyed. We have examined one of the three ways in which such a suspension may be occasioned, namely, by the existence of a contingency precedent 88 SUSPENSION BY EXPRESS TRUSTS. (CH. Iv. where the persons who, if ascertained, might convey, or release, or otherwise extinguish the contingency, were as yet unascertained. We now come to a consid- eration of the second way in which suspension may be occasioned, namely, by the existence of certain express trusts of such a character as to prohibit any alienation in contravention of the trust, by either the trustee or the beneficiary, before the end of the trust term. § 143. The distinction between this class and those arising out of contingencies precedent is that there the suspension arose from the fact that the person entitled to release, convey or extinguish the contingent estate, interest or possibility, was unascertained ; while bere it arises from the fact that although all estates present and future be vested, yet absolute alienation of the estate vested in the trustee is forbidden. § 144. The Revised Statutes,’ in Title IT of the Chap- ter ‘‘Of Real Property, and of the Nature, Qualities and Alienation of Estates therein,’ provide, in Article II, ‘Of Uses and Trusts,” that express trusts may be created for the following purposes : 1. To sell land for the benefit of creditors ;? 2. To sell, mortgage or lease lands, for the benefit of legatees, or for the purpose of satisfying any charge thereon ;° ‘1 R. S. 728, § 55, as amended by L. 1880, ch. 320, § 10; for the stat- utes of Michigan, Minnesota and Wisconsin, see Appendix. * In order to create a trust under this section the sale must be the pri- mary purpose of the grant, and the duty of the grantee to sell must-be im- perative. Woerz v. Rademacher, 120 N. Y. 62; general assignments of land for benefit of creditors belong in this class; Peo. ex rel. Short v. Bacon, 99 N. Y. 275 (279); Kittell o. Osborn, 4 T. & ©. 45; as to special © assignments of a portion of the land of a solvent assignor, see Knapp . McGowan, 96 N. Y. 75. * Where “ annuities” are provided for through an express real estate trust, they fall within this class. For the distinction between annuities,. § 145.] SUSPENSION BY EXPRESS TRUSTS. 89 3. To receive the rents and profits of lands, and apply them to the use of any person, during the life of such person, or for any shorter term, subject to the rules prescribed in the first article of this title (é.¢., the article ‘‘Of the Creation and Division of Estates,” 1 R. 8. 722, § 1 et seg., containing the provisions concern- ing suspension of the absolute power of alienation and postponement of vesting); 4. To receive the rents and profits of lands, and to accumulate the same, for the purposes and within the limits prescribed in the first article of this act (i. ¢., the article just referred to supra).’ § 145. ‘‘ Where an express trust shall be created tor any purpose not enumerated in the preceding sections, no estate shall vest in the trustees ;”* but the trust, if directing or authorizing the performance of any act which may be lawfully performed under a power, shall be valid as a power in trust,® subject to the provisions in relation to such powers, contained in 1 R. 8. 732, § 73 et seq.t ‘“‘Uses and trusts, except as authorized and modified in this article are abolished.” 4 , and payments of interest under the third class, ¢f. Griffen v. Ford,1 Bosw. 123 (143); Lang ». Ropke, 5 Sandf. (S. C.), 363 (370). As to a trust to sell, mortgage or lease, and to pay over proceeds, see Goodrich ¢. Milwaukee, 24 Wis, 422. ‘1 R. 8S. 728, § 55. A leasehold is “land,” and if given in trust must be brought within the terms of this statute. Bennett o. Rosenthal,11 Daly, 91. 3? See Cooke v. Platt, 98 N. Y. 35; Hagerty v. Hagerty, 9 Hun, 175; Adams v. Perry, 43 N. Y. 487. As to Michigan, Minnesota and Wisconsin, see Ap- pendix. 3 See N. Y. Dry Dock Co. ». Stillman, 30 N. Y. 174 (190); also compare Hawley v. James, 16 Wend. at 174-5, with Lang v. Ropke, 5 Sandf. (8. C.), 363. . Butihe fact that it might be carried out as a power is not sufficient to invalidate it as a trust. Morse v. Morse, 85 N. Y 53 (60). 41R. 8. 729, § 58. See Ring o. McCoun, 10 N. Y. 268. When a trust is declared void, but testator’s purpose may be carried out, it will vest in the proposed beneficiary, Helck v. Reinheimer, 105 N. Y. 470 (475); Beekman ». Bonsor, 23 N. Y. 298 (317-18); or in the grantcr or his heirs, or the heirs 90 SUSPENSION BY BXPRESS TRUSTS. [CH. IV. § 146. Of the express trusts thus permitted by the statutes there are two great classes, one of which does, and the other of which does not, involve a suspension of the power of alienation.’ Under the first class are included all those whose very purpose and essenee it is that the land shall not be alienated by the trustee dur- ing the trust term,’ and where, consequently, a sale by him would be in direct contravention of the trust. And as it is provided,’ that where the trust is or shall be ex- of the devisor, according as it is passive or active. N.Y. Dry Dock Co. ». Stillman, 30 N. Y. 174 (198 et seg.). Under the statutes turning an express trust for a purpose not now recognized by statute into a power in trust but executing a pussive trust in the beneficiary free from any power (1 R. S. 729, S$ 56-59; Syracuse Savings Bank ¢. Holden, 105 N. Y. 415; Fisher ¢. Hall, 41 N. Y. 416; 1 R. 8. 727, §§ 45-48), the test of whether a given trust is express or not, lies not in the importance, or in the obligatory nature of the duty to be performed, but in what the trust empowers and demands of the trustee. In order to be turned into a power by the statute, a trust must be one of those which, at common law, would be deemed special or active trusts, as distinguished from passive trusts. A trust to convey at the end of a trust term to those in whom the estate then vests is such an express trust. Towns- hend o. Frommer, 125 N. Y. 446. The future estate vests under the statute and renders the conveyance unnecessary, Moore v. Appleby, 36 Hun, 368, aff'd 108 N. Y. 287; and see Matter of Livingston, 34 N. Y. 555 (567 e¢ seq.) ; but this does not deprive it of its character of a common law express trust. Townshend v. Frommer, 125 N. Y. 446. 1R. 8. 727,§ 45; Mich. G. 8S. § 5568; Minn. G.S. § 4003; Wis. A. S. § 2071. This section refers to real estate trusts only. Shafter o. Hunting- ton, 58 Mich. 315; Ledyard’s Appeal, 51 Mich. 625; Baker. Terrill, 8 Minn. 195; Ruth ». Oberbrunner, 40 Wis. 238; Heiss v. Murphey, 40 Wis. 276; Dodge v. Williams, 46 Wis. 70 (95); DeWolf v. Lawson, 61 Wis. 469; Webster o. Morris, 66 Wis. 366 (882). See post, Chap. VIII. 1 Radley v. Kuhn, 97 N. Y. at 81; Robert 2. Corning, 89 N. Y. at 235. The statute concerning suspensions cannot be evaded by a direct devise ac- companied by a secret trust. Matter of Will of O'Hara, 95 N. Y.403. But see Matter of Kelemen, 57 Hun, 165; Bache ». Tomlinson, 24 N. Y. Week. Dig. 282. 2 As to cases where there is a power to sell the land itself, but where the proceeds of the sale remain subject to the trust, see ante, § 68. *1R. S. 780, § 65; Mich. G. S. § 5583; Minn. G. S. § 4024; Wis. A. S. § 2091; Douglas v. Cruger, 80 N. Y. 15. But the only acts of the trustee which are forbidden are those in contravention of a given trust; he might, with the approval of the court even before the amendments to section 65, mortgage the land; and whether it is or is not in contravention is a question § 147.] SUSPENSION BY EXPRESS TRUSTS. 91 pressed in the instrument creating the estate, every sale, conveyauce, or other act of the trustee, in contra- vention of the trust, shall be absolutely void,! and also that no person beneficially interested in a trust for the receipt of the rents or profits of lands can assign or in any manner dispose of such interest,’ it follows that all trusts to which these provisions apply, necessarily sus- pend the absolute power of alienation.® § 147. Under the other class are included all those which either by their terms or their nature, either com- mand or necessitate an immediate sale, and thereby actually render a suspension impossible. Under this same class are also included all those which while they neither command nor necessitate an immediate sale, do nevertheless leave the trustee free to sell the land when- ever he,‘or other designated persons, or he and they to be decided by the court. U.S. Trust Co. v. Roche, 116 N. Y. 120 (130); Cruger v. Jones, 18 Barb. 467. And authority to mortgage and sell, with the approval of the court, for purposes specified in the statutes, is now con- ferred by L. 1891, ch. 209; (see also L. 1886, ch. 257; L. 1884, ch. 26; L. 1882, ch. 275); Matter of Clarke, 59 Hun, 557; Matter of Roe, 119 N.Y. 509. 1See Fitzgerald v. Topping, 48 N. Y. 488 (444); of. L’Amoureaux 2. Van Rensselaer, 1 Barb. Ch. 34 (37); Wetmore v. Porter, 92 N. Y. 76. 21R. S. 730, § 63; Mich. G. 8. § 5581; Minn. G.S. § 4020; Wis. A. 8. § 2089. This prohibition in the 68d section, against alienation by the ben- eficiary, is a restriction upon the interest, and not upon the person, so that authority given by the devisor to the cestud que trust to alien, would not remove the statutory prohibition. Opinion of Nelson, J., in Coster ». Loril- lard, 14 Wend. at 333. The opposite view would allow the devisor to create a purely formal trust, which is directly opposed to the whole purpose of the statute. Id. Section 68 does not apply to the case of “annuities” which if provided for by an express real estate trust fall under the second class of trusts, and are assignable. Griffen ». Ford, 1 Bosw. 128 (148); Lang ». Ropke, 5 Sandf. (8. C.) 368 (370). 3 Everitt vo. Everitt, 29 N. Y. 39 (90); Ford »v. Ford, 70 Wis. 19 (60). “Dispositions of the rents and profits of lands, to accrue and be received at any time subsequent to the execution of the instrument creating such dispo- sition shall be governed by the rules established in this article (7.e 1R.S. 722, § 1 et seq.) in relation to future estates in lands.” 1 R. 8S. 725, § 36. 92 SUSPENSION BY EXPRESS TRUSTS. [CH. IV. together, see fit to sell. For, although in such a case, this power to sell may not be exercised immediately, or for a long time, and indeed may chance never to be ex- ercised, still there is never a moment when the trustee cannot sell if he sees fit;' or, where the discretion is left wholly or partly in other persons, tben still there is never a moment when, in the words of the statute, ‘there are no persons in being, by whom an absolute fee in possession can be conveyed.” By agreeing to- gether, the various persons can always effect a convey- anee. For the statute deals with the suspension of the power of alienation, and not with the suspension or de- lay, or entire omission of alienation itself? According to section 14, the one test of suspension of the power of alienation is found in the lack not of persons who will, or who must convey, but of persons who can convey. If there are persons who, either singly or together, can convey, there is no suspension of the power of aliena- tion. So also, therefore, under this same class of trusts by which no suspension is occasioned, come those where the interest of the beneficiary is assignable, as for in- stance, trusts for the payment of a sum in gross.* § 148. Inasmuch as, in the case of such express trusts as occasion suspension of the absolute power of alienation, the term of their duration is the vital sub- ject of inquiry, we may properly, before proceeding further, here examine the various ways in which they may be created and terminated. ' Robert +. Corning, 89 N. Y. 225 (235 and 289); Henderson ». Hender- son, 113 N. Y. 1 (12); see Stewart v, Hamilton, 37 Hun, 19. ? Robert 0. Corning, 89 N. Y. 225 (235 and 289): Henderson v. Hender- son, 118 N. Y.1(12); see Stewart o. Hamilton, 87 Hun, 19: and see ante, § 67. °1R. S. 730, § 63; Mich. G. 8. § 5581; Minn. GS. § 4020; Wis. A. S. § 2089. , . § 150.] CREATION OF EXPRESS TRUSTS. 93 1. Creation of Express Trusts. § 149. The statute explaining the term ‘creation of the estate,” has already been given.' (a.) By Will?—The reports are full of illustrations of this mode of creation.’ Here the trust may be de- clared in explicit terms, or may be derived by implica- tion from the provisions of the entire instrument, as, for instance, from the nature of the duties imposed upon the executor, or the powers or rights bestowed. (b.) By Deed or conveyance.‘—Trusts may also be created by deed.® § 150. Declaration of Trust.—It is not necessary that a trust should be created by deed or conveyance or will. It may be created by parol, but in that case it can only be proved by a writing subscribed by the party declar- ing the same. Any writing answering this description will suffice.6 But the trust must be sufficiently mani- fested in the writing itself, unassisted by parol evi- dence." ; 1 Ante, § 81. 22K S. 135, § 7, as amended, L. 1860, ch. 822. . 3% For example, Asche v. Asche, 113 N. Y. 282; Stevenson v. Lesley, 70 N.Y. 512. 42R. 8. 184, $6. It has been decided that L. 1849, ch. 375, § 2 (Birds- eye’s R. 8. IT, 1404, § 26), authorizing a conveyance of the trust property by the trustee to a married woman, beneficiary, on certain conditions, ap. plies merely to nominal and passive trusts. Genet. Hunt, 113 N. Y. 158 (172). ® Johnston v. Spicer, 107 N. Y. 185; Douglas v. Cruger, 80 N. Y. 15; Nearpass 7. Newman, 106 N. Y. 47; Wallace v. Berdell, 97 N. Y. 13; The- paud v. Schermerhorn, 30 Hun, 332; Van Cott v. Prentice, 104 N. Y. 45. 62 R. S. 185, § 7, and L. 1860, ch. 8322; Cook v. Barr, 44 N. Y. 156; see McArthur v. Gordon, 27 N. E. Rep. 1038; Westlake v. Wheat, 48 Hun, 77; Wis. A.S. § 2802; Minn. G.S. § 4230; Mich. G.S. § 6179; Karr v. Wash- burn, 56 Wis. 808; Pratt ». Ayer, 3 Pinney (Wis.), 236; Rogan v. Walker, 1 Wis. 527; Whitney ». Gould, 2 Wis. 552; White v. Fitzgerald, 19 Wis. 480; Bird ». Morrison, 12 Wis. 153; Hubbard v. Sharp, 11 St. Rep. 802 ; Follett 7. Badeau, 26 Hun, 258; Sturtevant » Sturtevant, 20 N. Y. 39. 7 Cook v. Barr, 44 N. ¥. 156; Tatge v. Tatge, 34 Minn. 272. (In Min- nesota a married woman cannot make such a declaration effective unless 94 SUSPENSION BY EXPRDSS TRUSTS. |CH. 1V- § 151. Essential elements.—To the constitution of every express trust three elements are essential, namely, a trustee, an estate devised to him, and a beneficiary.’ To these should, of course, be added two others, namely, a legal purpose and a legal term. § 152, Non-essentials—In this connection attention may be called to certain things that the trust instru- ment need not express in terms, namely : § 153. (1.) It need not use the word ‘‘ trustee.” Its absence does not negative the intent to create a trust, nor does its presence indicate conclusively the existence of such an intent.* §$ 154. (2.) It need not contain an express devise or bequest to the trustees, in order to give them the title. If the duties imposed are such as to render it essential that the title be in them, the intent to give it to them will be inferred.’ her husband join. Id.) Minn. G. 8. § 4230; Mich. G.8. § 6179; Wis. A.8. § 2302; see Steere vo. Steere, 5 Johns.Ch.1; Trask v Green, 9 Mich. 366; Groesbeck 2. Seeley, 18 Mich. 345; Newton v. Sly, 15 Mich. 396; Brown ». Bronson, 85 Mich. 418; Enos v. Sutherland, 11 Mich. 541; see Patten o. Chamberlain, 44 Mich. 5; Calder 0. Moran, 49 Mich. 14; Edinger v. Heiser, 62 Mich. 598. 1 Greene v. Greene, 125 N. Y. 506 (510); Rose v. Hatch, 125 N. Y. 427 (481); Sherwood 0. American Bible Society, 4 Abb. Ct. Ap. Dec. 227. Con- cerning the definiteness required in designating the beneficiary, the follow- ing, among very numerous cases, may be consulted: Bascom v. Albertson, 34 N. Y. 584; Prichard v. Thompson, 95 N. Y. 76; Holland 2. Alcock, 108 N. Y. 312 (821); Fosdick v. Town of Hempstead, 125 N. Y. 581; Riker v. Leo, 115 N. Y. 93; Adams » Perry, 43 N. Y. 487 (490, 492); N. Y. Insti- tution for the Blind 7. How’s Ex’rs, 10 N. Y. 84; and Power ». Cassidy, 79 N. Y. 602, as an authority which, at the best, must be strictly confined within its exact limits; and examine Beekman 2. Bonsor, 23 N. Y. 298 (303); and as to indefiniteness in designating the beneficiaries under powers’ in trust, see Read v. Williams, 125 N. Y. 560. * Woodward . James, 115 N. Y. 346; Tobias ». Ketchum, 32 N. Y. 319 (827). 3 Hathaway v. Hathaway, 37 Hun, 265. ‘Ward vo. Ward, 105 N. Y. 68 (73); Hathaway o. Hathaway, 37 Hun, § 157.] CREATION OF BXPRESS TRUSTS. 95 § 155. (3.) It need not use the words ‘“‘rents and profits.” The gift of rents and profits is strictly essen- tial in order to vest the title in the trustee,' but iti may be inferred.’ § 156. (4.) No particular verbal formula whatever is required. Thus a gift of full control for designated purposes for which a trust may be created, creates a trust, and vests title in the trustee.‘ § 157. But the foregoing statements are all subject to the operation of the principle that a trust will not be implied where it would be a void trust. There is no such anomaly in the law as a trust raised by construc- tion only to be destroyed in the moment of its creation. Subject to this principle, the whole matter may be summed up by saying that it is sufficient if the inten- 265; Vernon v. Vernon, 53 N, Y. 351; Donovan v. Van De Mark, 78 N. Y. 244; Toronto G. T. Co. v.C., B. & Q. R. R. Co. 123 N. Y. 87 (44); Woodward o. James, 115 N. Y. 346; Robert v. Corning, 89 N. Y. 225 (236); Tobias «. Ketchum, 32 N. Y. 319 (827); Marx ». McGlynn, 88 N. Y. 357 (375); Morse *. Morse, 85 N. Y. 58 (60); Leggett 0. Perkins, 2 N. Y. 297 (305); Matter of Herrick, 32 St. Rep. 1082 (1035). And precatory words may suffice. Phil- lips v. Phillips, 112 N. Y. 197; see Manice v. Manice, 43 N. Y. 308 (387). 11 R. S. 729, § 56; Purdy o. Wright, 44 Hun, 239; Weeks v. Cornwell, 104 N Y. 825; Hotchkiss v. Elting, 36 Barb. 38; Matter of Christie, 59 Hun, 153. 2 De Kay ». Irving, 5 Den. 646 (651); Dillaye v. Greenough, 45 N. Y. 488 (444); Woodward ». James, 115 N. Y. 846; Morse v. Morse, 85 N. Y. 53 (59); Donovan ». Van De Mark, 78 N. Y. 244; Tobias o. Ketchum, 32 N. Y. 819 (828); but see Manice v. Manice, 43 N. Y. 303 (363). 3 Vernon ». Vernon, 53 N. Y. 351 (859); Morse ». Morse, 85 N. Y. 53 (60); Shepard v. Gassner, 41 Hun, 326. See, also, Brewster ». Striker, 2 N. Y. 19 (86); Downing >. Marshall, 23 N. Y. 378; Beekman ». Bonsor, 23 N. Y. 298 (314); Verdin v. Slocum, 71 N. Y. 345; Jarvis v. Babcock, 5 Barb. 189 (144); Craig o. Craig, 3 Barb. Ch. 76; Vail. Vail, 4 Pai. 317 (328); Gott v. Cook, 7 Pai. 521; Bradley v. Amidon, 10 Pai. 285. 4 Hathaway v. Hathaway, 37 Hun, 265. 5 Smith ». Edwards, 88 N. Y. 92 (102); (see Woodward v. James, 115 N. Y¥..at 357); Post 0. Hover, 83 N. Y. at 601; Henderson v, Henderson, 118 N. Y.1(11). See Greene v. Greene, 125 N. Y. 506. 96 SUSPENSION BY EXPRESS TRUSTS. (CH. IV. tion to create a trust which would be valid under the statute can be fairly collected from the instrument ; and that what is implied from the language used is, as jn other instruments, deemed to be expressed.’ But where there is no express devise to trustees, and no actual necessity for vesting the title in them, no trust will ever be inferred.’ 2. Termination of Express Trusts. $158. (a.) By express limitation—Where a trust is created to continue through the lives of A and B, their death vrings the term to an end. And this term need not be for the whole of two lives. It may be expressly provided that the term is to continue until the happen- ing of some collateral contingency which must happen within the statutory period, if ever.’ And the grantor may reserve the power to revoke the trust.‘ Or he may provide for its termination in case of any ‘‘interfer- ence,” by the beneficiary, with the trust provisions ;* or at the discretion of the trustee on the happening of certain contingencies.’ ' Tobias 0. Ketchum, 32 N. Y. 319 (327). ” Persons v. Snook, 40 Barb. 144 (156); see, also, Williams ». Freeman, 98 N. Y. 577 (580, 584); Rathbone ». Dyckman, 3 Pai. 9; Chamberlain 2. Taylor, 105 N. Y. 185 (193); Orphan Asylum ». White, 6 Dem. 201 (204); Heermans v. Robertson, 64 N. Y. 332 (343); Henderson ». Henderson, 113 N. Y. 1 (11); Post ». Hover, 83 N. Y. 593 (599); Foose 2. Whitmore, 82 N. Y. 405 (406); Manice ». Manice, 48 N. Y. 303 (864); Germond »o. Jones, 2 Hill, 569; Weeks v. Cornwell, 104 N. Y. 325 (339). 3 Van Cott v. Prentice, 104 N. Y. 45 (52). 4Van Cott v. Prentice, 104 N. Y. 45 (52, 54-5) (ef. Garnsey ». Mundy, 24.N. J. Eq. 243; Conkling v. Davies, 14 Abb. N. C. 499); Rosenburg 2. Rosenburg, 40 Hun, 91, where the property was personal ; or he might place that power in the hands of the trustee, the beneticiary, and himself, acting jointly. See Matter of Vanderbilt, 20 Hun, 520. 5 Van Cott v. Prentice, 104 N. Y. 45 (52); see Woodward v. James, 44 Hun, 95 (115 N. Y. 346). ° Marvin v. Smith, 58 Barb. 600 (605), aff'd 46 N. Y. 571; (cf. provisions of will in Matter of City of Rochester, 110 N. Y. at 160). § 159.] TERMINATION OF EXPRESS TRUSTS. 97 § 159. (b.) By failure of purpose.—The Revised Stat- utes provide that when the purpose for which an ex- press trust shall have been created shall have ceased, the estate of the trustees shall also cease.! Thus, where a trust is created to receive rents and profits, and during a certain period apply them, there the trust to receive them, though the period of its duration be not defined in the instrument, is, by operation of law, limited to the period during which they are directed to be ap- plied.? And the same result follows whenever the pur- poses of the trust fail. As, for instance, the fact that, if the life of a person not a beneficiary is designated to measure the trust term, the beneficiaries may all die before the end of his life, presents no difficulty. The trust in that case is to last during the designated life or less,—that is, will terminate short of the end of the designated life if the objects pass out of existence.® But after a trust deed once takes effect and becomes irrevocable, the fact that the rents are in fact received by the grantor instead of the trustee cannot impair its ‘1 R.S 780, § 67; Mich. G. 8. § 5585; Minn. G. 8. § 4023; Wis. A. S. § 2093; Kip ». Hirsh, 103 N. Y. 565; Nicoll ». Walworth, 4 Den. at 388, and cases cited ; Watkins v. Reynolds, 123 N. Y. 211; Montgomery v. Mer- Till, 18 Mich. 388 (348); Stevens v. Earl, 25 Mich. 41. 2 See Manice v. Manice, 43 N. Y. 303 (363). 3 Crooke v. Co. of Kings, 97 N. Y. 421 (485 to 441); Bailey v. Bailey, 97 N. Y. 460 (466); Thebaud ». Schermerhorn, 30 Hun, 332. But the death of the trustee or his resignation or removal will not defeat the trust. 1R. 8. 730, $68; Id. § 70. Nor would his unauthorized conveyance to the ben- eficiary. Douglas v. Cruger, 80 N. Y. 15 (18). Although, if the testator should provide that the trust should be executed by the trustee named by him, or not at all, the term would of course end with his death, resigna- tion or removal. For the principle on this particular point, of. Beekman », Bonsor, 28 N. Y. 298 (808 et seg.); see Hawley v. James, 16 Wend. 62 (140 et seg.); and this failure of purpose may in some cases be presumed from lapse of time, Kip v. Hirsh, 103 N. Y. 565, and independent of L. 1875, ch. 545, Id. ch. 572, relating to presumption of termination in general assign- ments for benefit of creditors. 7 98 SUSPENSION BY EXPRESS TRUSTS. [CH. IV. validity, as against the cestuis que trust, or affect their rights. § 160. Failure of an essential feature of an entire trust scheme destroys the whole. There are numerous ways in which it would appear that this principle might operate to terminate the trust. Thus, where an oppor- tunity for election is given, as, for example, to a widow for whom a trust provision is made in lieu of dower,’ it would appear that her election to take in hostility to the will might so disarrange the whole scheme as to defeat it. And where the invalidating of certain trusts and the sustaining of certain wholly independent de- vises, would be to give the devisees (also heirs) an undue and unintended share, and they must elect whether to take under the will or in hostility to it,° their electioo might lead to the same result.! — § 161. As the exact relations of the trustees and beneficiary under an express trust have an important bearing on the matter of suspension, we will here briefly examine them. 3. The Title of the Trustee. § 162. The trustee takes the entire legal title; he also takes the entire equitable title ;> he becomes fort ? Wallace vo. Berdell, 97 N. Y. 18 (25). * Tobias 0 Ketchum, 32 N. Y. 319 (827) (see Konvalinka ». Schlegel, 104 N. Y. 125 [180]); of Gilman o. Gilman, 111 N. Y. 265; Bailey v. Bai- ley, 97 N. Y. 460, 471; Dodge v. Dodge, 81 Barb. 418, Asche ». Asche, 118 N. Y. 282; Matter of Accounting of Frazer, 92 N. Y. 239; Akin 0. Kellogg, 119 N. Y. 441; Matter of Zahrt. 94 N. Y. 605. 8 Persons 0. Snook, 40 Barb. 144 (157) ‘The Supreme Court has no power to destroy a valid trust, even on the petition of the trustee and beneficiary together. Douglas v. Cruger, 80 N. Y. 15 (19). ° 1-2. S. 729, § 60; Mich. G. 5. § 5578; Minn. G. S. § 4014; Wis. A. S. § 2086; Van Cott ». Prentice, 104 N. Y. 45 (52-8); Marx ». McGlynn, 88 §163.] THE INTEREST OF THE BENEFICIARY. 99 all purposes of full and untrammeled control and direc- tion, the exclusive owner of the land,’ but the statute only refers to the trust estate itself, and not to a re- mainder that may be limited on it. The term ‘whole estate,’ means the whole trust estate, and not future interests not embraced in the trust.? But the terms of ‘the instrument and the nature of the trustee’s duties may be such as to give him the fee simple, so long as the trust lasts, with no legal remainder whatever in those who are to take upon the termination of the trust.’ 4. The Interest of the Beneficiary. § 163. The beneficiary as such has no estate or inter- est in the land.* His only concern in the matter is to see that the trustee does his duty by him, and all he needs, for this purpose, the statute gives him, namely, the right to enforce the performance of the trust in equity. The unassignability of his interest, under cer- tain classes of trusts, has already been referred to.2 The N. Y. 357 (876); Asche v. Asche, 113 N. Y. 232 (235); Amory »v. Lord, 9 N. Y. 408 (410 et seg.); Douglas v. Cruger, 80 N. Y. 15 (18); Scott v. West, 63 Wis. 529 (562). As to devises to aliens as trustees, see Howard v. Moot, 64 N. Y. 262. 1 Marx v. McGlynn, 88 N. Y. 357 (876); Asche v. Asche, 113 N. Y. 232 (285). But it is not inconsistent with a completely constituted trust, that the trustee should hold and manage the property ‘‘ subject to the direction © and control” of the creator of the trust. Van Cott v. Prentice, 104 N. Y. 45 (52). See, also, as to designation of investments, by creator of trust, Denike v. Harris, 84 N. Y. 89 (94). In the last two cases the property was personal. 3 Embury v. Sheldon, 68 N. Y. 227 (235); Stevenson v. Lesley, 70 N. Y. 512 (517); Genet v. Hunt, 113 N. Y. 158 (172-3). 3 Bennett v. Garlock, 79 N. Y. 302. See, also, the dissenting opinion of Rapailo, J. 322. Compare post, § 367 et seq. 41RB.S. 729, § 60; Mich. G. S. § 5578; Minn. G.S. § 4014; Wis. A. 8. § 2086. He cannot charge the future income with the cost of legal services. rendered on his retainer, though they were required to protect his interests. Noyes v. Blakeman, 6 N. Y. 567. ® Ante, § 146; 1R. S. 780, §60; Radley 0. Kuhn, 97 N. Y. 26 (32); Doug- Jas v, Cruger, 80 N. Y. 15 (18). 100 SUSPENSION BY EXPRESS TRUSTS. _[CH. IV. existence of a valid express trust is consistent with the contemporaneous existence of a remainder in the bene- ficiary, limited on the trust estate, which is descendible and alienable, although he has no title to the precedent estate in the trustee.’ § 164. Where a grantor evidently intends to create a valid trust, a provision that the beneficiaries shall have no legal or equitable right to principal or interest, will be construed as equivalent to the similar provision of 1R.S. 727, $60, and not as denying the equitable right in the beneficiaries to enforce the trust as against the trustees.? But a trust tor the lite of the beneficiary may exist with power in the beneficiary to dispose by grant or devise of the remainder limited on the trust estate." As remainderman or grantee of a power, he exists in a capacity distinct from that of the benefic- dary. ' For a full discussion of this point, and the limitations of the statements ‘in the text, see post, § 367 et seqg.; Vanderpoel v. Loew, 112 N. Y. 167; Van Brunt 2. Van Brunt, 111 N. Y. 178 (187); Moore v. Appleby, 36 Hun, 368 «aff'd 108 N. Y. 237); Embury ». Sheldon, 68 N. Y. 227 (234); Stevenson w. Lesley, 70 N. Y. 512 (516); Asche v. Asche, 113 N. Y. 2382; 1 RB. S. 729, $§ 61-2. The present beneficial interest and the future title in remainder in the same person, do not merge. Id.; and soin personal property. Warner 2. Durant,76 N. Y.133; Van Brunt v. Van Brunt, 111 N. Y. 178. And so there may be such a remainder limited to some person other than the beneficiary, Nichol v. Walworth, 4 Den. 385; and if the remainder isin fee, and not defeas- ible by the death of the remainderman, it descends to his heirs in case of his death during the trust term. Van Axte v. Fisher, 117 N. Y. 401; and this result is not affected by the fact that there is a discretionary power in the trustee to appropriate so much of the principal estate as might be needed in addition to the interest, for the benefit of the beneficiary, and the devise in remainder is only of “so much as shall remain.” Id. And instead of having the present estate in the trustee, with a remainder in another, the trust estate may be itself a remainder limited on a precedent estate in a de- visee for his own benefit. See Peck v. Sherwood, 56 N. Y. 615; Webster ®. Morris, 66 Wis. 366. * Van Cott v. Prentice, 104 N. Y. 45 (52-8). * Crooke v. County of Kings, 97 N. Y. 421 (484); Mott ». Ackerman, 92 N. ¥. 589. § 166.] TRUSTEE AND BENEFICIARY BOTH. 101 § 165. The trustee, though clothed with the full legal and equitable title, takes it burdened with the necessity of employing it in the performance of the trust, and the suspension is due entirely to the fact that either the nature or the terms of the trust prohibit alienation and that the statute, by rendering void all sales in contra- vention of the trust,’ and forbidding assignment or other disposition of his interest by the beneficiary * makes any conveyance of the absolute fee impossible.* 5. The Same Person as Trustee and Beneficiary. § 166. ‘It is undoubtedly true that the same person cannot be at the same time trustee and beneficiary of the same identical interest. Tosay that he could, would be a contradiction in terms, as complete and violent as. 1See Fitzgerald v. Topping, 48 N. Y. 488 (444). Where a trust deed gives the power of sale, a sale under it is of course not in contravention of the trust. Belmont v. O’Brien, 12 N. Y.394; McArthur 2. Gordon, 51 Hun, 511; (126 N. Y. 597). As to implied power to mortgage, see Rogers ».. Rogers, 111 N. Y. 228 (238). ? But “ where a trust is created to receive the rents and profits of land,. and no valid direction for accumulation is given, the surplus of such rents and profits, beyond the sum that may be necessary for the education and. support of the person for whose benefit the trust is created, shall be liable in equity to the claims of the creditors of such person, in the same manner as other personal property, which cannot be reached by an execution at law.” 1 RB. 5S. 729, § 57. See, also, Code C. P. § 1879; and compare Williams ze. Thorn, 70 N. Y. 270; Same v. Same, 81 N. Y. 381; Tolles ». Wood, 99 N. Y. 616; Wetmore v. Truslow, 51 N. Y. 338 (342); Graff v. Bonnett, 31 N. Y. 9 (12); Locke o. Mabbett, 3 Abb. Ct. App. Dec. 68 (73); Levy 2. Bull, 47 Hun, 350; Rider v. Mason, 4 Sandf. Ch. 351; Kilroy v0. Wood, 42 Hun, 686 ; Genet v- Beekman, 45 Barb. 382. The same principles are applicable whether the property held in trust be real or personal. Williams 0. Thorn, 70 N. Y. 270; Tolles o. Wood, 99 N. Y. 616. 3 Suspension may be occasioned by trusts limited to begin in future, as well as by present trust estates. Manice v. Manice, 43 N. Y. 308 (365); Mason v. Mason's Executors, 2 Sandf. Ch. 482 (474), aff'd 2 Barb. 229. There may be in the same scheme both an express trust and also a future contingency, both of them operating at the same time to occasion suspen- sion. Haynes v. Sherman, 117 N. Y. 483 (489). 102 SUSPENSION BY EXPRESS TRUSTS. [CH. IV. to declare that two solid bodies can occupy the same space at the same instant.’’! § 167. But where a trustee is a beneficiary of the same estate, both in respect to its quality and quantity, the inevitable result is that the equitable is merged in the legal estate, and the latter alone remains. If, then, as to a portion of the income, the trustee is also bene- ficiary, and therefore, as to that portion is not trustee, but takes what is given him by a direct legal right, it does not follow that his trust estate in the corpus of the property is in any manner destroyed, or that there is any the less a necessity for its existence. He can be trustee for the other beneficiaries, and that trust ranges over the whole estate for the purpose of its management and disposition.” § 168. And where several trustees are named, one of whom is also a beneficiary, there is no attempt to unite in the same person the office of trustee and the interest of beneficiary. He can act freely as to other beneficiaries than himself, and as to him the others can exercise the judgment and control improper for him. And although the trustees other than the beneficiary may die or decline to act, the court has power to supply their place, or, if need be, or if it choose to do so, to take upon itself the execution of the trust, so far as it ought not to be executed by the trustee who is also beneficiary. If instead of appointing a new trustee, it exercises itself all the discretion reposed anywhere, it may then direct the performance of the resulting mere- ly formal acts by the trustee who is a beneficiary.’ ' See Woodward ». James, 115 N. Y. 346; (of. Austin v. Oakes, 117 N. Y. 577); Rose o. Hatch, 125 N. Y. 427 (481-2). * Woodward v. James, 115 N. Y. 846 (357). ‘Rogers v. Rogers, 111 N. Y. 228 (287 et seg.); and see Amory 2. Lord, 9 N. Y. 403 (412). §171.] TENANCY OF THE BENEFICIARIES. 103 '§ 169. But if the property is left to several persons as trustees, and they are also the equal and sole benefici- aries of the trust, and are vested with the remainder after the trust, in equal shares, here their various titles and interests as trustees, beneficiaries and remainder- men, merge and give them the fee in possession. 6. Tenancy of the Beneficiaries. § 170. Thus far we have looked on the trust estate under consideration as one body of property, affected by one term of suspension, and we have seen that the limitations or conditions must be such that all this estate, in its entirety, shall be freed from its fetters, by the end of two designated lives.. It appeared also that this rule was inflexible, and that if any disposition of property were such that it might possibly cause a sus- pension beyond two lives, it was void from the be- ginning. § 171. It is, however, obvious that the testator or grantor might himself make a physical division of his property into two or more parts, and constitute each a separate corpus, and give one to one trustee, and an- other to a second trustee, and impress upon each its own peculiar purposes and its own term. In sucha case, each trust estate would be judged on its own merits, and each might be rendered inalienable for two lives, irrespective of the terms of suspension applica- ble to the others. The fact that a grantor conveyed a certain ten acres of land to A in trust for the lives of B and C, would not affect the validity of a conveyance by him of a certain other ten acres to M in trust for the lives of N and O. As to each parcel, the term of suspension would be measured by two lives. So, also, 1 Greene v. Greene, 125 N. Y. 506 (510). 104 SUSPENSION BY EXPRESS TRUSTS. [CH. IV. if he should not himself make the actual division, but should grant a certain twenty acres to A, directing him to divide it into two distinct parcels by metes and bounds, and to hold one of these parcels in trust for the lives of B and ©, and to hold the other in trust for the lives of N and O, the term of suspension would in each case be valid It is true that in either of the cases supposed the suspension must continue as to one or the other of the parcels, until the death of four designated persons. But the statute regards each parcel as a sep- arate body of property disconnected from the other, and tied up, by itself, for only two lives. § 172. There is, however, a large class of cases in which the creator of a trust conveys property, to be held in solido by the trustee, and directs that the pro- ceeds shall be applied to the use of a number of desig- nated beneficiaries for their lives. And this situation gives rise to the question whether, where the property itself is thus held in one general mass, it may neverthe- less be possible, in any cases, to regard the interests of the beneficiares as separated into distinct shares, and held by them, so to speak, as tenants in common and not as joint tenants; and whether each of these undi- vided shares may be looked on as a separate entity en- titled to its own separate term for two lives. § 173. It is clear that the validity of such trusts will depend upon the answer to this question. For if a trust be of such a character that the principal must all be held together through the lives of more than two beneficiaries, it is void, on principles already discussed; while if it be allowable to construe a given trust in > Bruner v. Meigs, 64 N. Y. 506 (and this result would not be affected even though no such actual division of the property were in fact made by the trustees, see same case); Moore v. Hegeman, 72 N. Y. 376. § 175.] TENANCY OF THE BENEFICIARIES. 105 property held by the trustee in solido, as constituting distinct beneficial interests, each to be judged on its own merits, and measured by its own term, there might then be as many separate terms as there were shares, and the trust would not be invalidated by the fact that some portions of the undivided principal must remain inalienable until all the various designated lives had ex- pired.' § 174. In taking up this question, an important dis- tinction at once arises between those trusts, on the one hand, where there is a clearly expressed intention that the respective interests of the beneficiaries in the un- divided estate shall be joint ;* or that they shall be dis- tinct and separate ;* and those trusts, on the other hand, where no material is furnished for determining the intention either way. A. Where the Intent is Shown. § 175. In the first of the two classes just mentioned the courts take the creator of the trust at his word, and let the trust, as he chose to make it, stand‘ or fall* on its merits.® 1 See Matter of Willets, 112 N. Y. 289. 2 Knox ». Jones, 47 N. Y. 889; Ward v. Ward, 105 N. Y. 68; Colton 2. Fox, 6 Hun, 49; s. c. 67 N. Y. 348; Hone v. Van Schaick, 20 Wend. 564; Van Nostrand v. Moore, 52 N. Y. 12 (22 et seg.); consult also dissenting opinion of Wright, J., in Everitt 0. Everitt, 29 N. Y. 39 (at 97); Thorn 2. Coles, 3 Edw. Ch. 330. 3 Stevenson v. Lesley, 70 N. Y. 512; Meserole v. Meserole, 1 Hun, 66; Savage v. Burnham, 17 N. Y. 561 (570); Bulkley ». Depeyster, 26 Wend. 21; Bingham z. Jones, 25 Hun, 6; Mason ». ene 2 Barb. 229 (242); Ev- eritt v. Everitt, 29 N. Y. 39 (82). 4 See cases cited in preceding note; Shipman v. Rollins, 98 N. Y. 311 (314, 330). * See cases cited ante, § 91. 6 It would be impossible here to examine the very numerous and varying indications of intent upon which the courts have relied in determining the tenancy of beneficiaries under particular trusts before them. But illustra- 106 SUSPENSION BY EXPRESS TROSTS. (CH. IV: And this is true whether the trust is one of real prop- erty’ or personal property.’ §176. An excellent illustration of the creation of distinct shares in the interests of a plurality of bene- ficiaries is found in Moore v. Hegeman,’® where testator left his property in trust to divide it into three equal shares and to hold one for each of his three children, A, B, and ©, for their respective lives. Upon the death, without issue, of the first to die, as A, his share was to be divided into two equal sub-shares, to be held in trust one for B for life, and one for © for life. Upon the death of A, therefore, each of the survivors would have a beneficial interest in: his own 4; and $ of A’s 4. His own share would still be passing through the first life, but his 4 of A’s $ would now have expended its first life and be passing through the second. Upon the death without issue of the second to die, as B, the same process was to be repeated. B’s4of A’s 4, hav- ing now passed through two lives, must vest absolutely. But B’s own original 4, having thus far continued for ouly one life, namely B’s life, was to be still held in trust for the survivor C, for his life. C, then, would have a beneficial interest in : tions may be found in the following, among other cases: Vanderpoel ». Loew, 112 N. Y. at 178; Wells v. Wells, 88 N. Y. at 333; Smith o. Ed- wards, 88 N. Y. at 103; Everitt v. Everitt, 29 N. Y. at 73 and 74; Mason o. Mason’s Executor, 2 Sandf. Ch. 432; Bingham v. Jones, 25 Hun, 6; Colton ». Fox, 6 Hun, 49 (aff’d 67 N. Y. 348). ' Meserole v. Meserole, 1 Hun, 66; Ward » Ward, 105 N. Y. 68; Colton v. Fox, 6 Hun, 49; Stevenson v. Lesley, 70 N. Y. 512. > Knox v. Jones, 47 N. Y. 889; Matter of Lapham, 37 N. Y. 15: Everitt »v. Everitt, 29 N. Y. 39 (71); Savage ». Burnham, 17 N. Y. 561 (570); Bulk- ley v. Depeyster, 26 Wend. 21. °72.N. Y. 376; also Manice v. Manice, 43 N. Y. 308 (878). § 178.] TENANCY OF THE BENEFICIARIES. 107 his own }; and his $ of A’s 4; and all of B’s 4. Upon C’s death, his own + will still have been tied up for only one life, namely C’s life; his 4 of A’s + will have been tied up for only two lives, namely, the lives of A and ©; and B’s entire } will also have been tied up for but two lives, namely, the lives of B. and C. § 177. It will thus be noticed that the testator’s dis- position was effective in suspending the power of alien- ation of $ of his entire estate until the decease of the last of his three children.t If he had directed a pro- vision, on the same system, for four beneficiaries in- stead of for three, he could have tied up more than 3 of the property until the death of the longest to live out of four designated persons. If the beneficiaries had been five, he could have tied up almost 3 until the death of the longest liver of five. Such, in fact, was the scheme provided and approved in Vanderpoel v. Loew. § 178. In these cases, as said by Finch, J.,° the piv- otal question is the inquiry whether the intention was to create one term of suspension, enveloping all the interests, and holding them in its grasp throughont the entire period ; or whether the intention was to consti- tute distinct and separate interests, each to be measured by its own term and having its own separate course to pursue.* The answer to this question must of course ’ See, also, Wells v. Wells, 88 N. Y. 828 (824, VI; 883); Vanderpoel ». Loew, 112 N. Y. 167; Everitt o Everitt, 29 N: Y. 39; Bingham ». Jones, 25 Hun, 6; Phillips ». Davies, 92 N. Y. 199. 2112 N. Y. 167. 3 Vanderpoel v. Loew, 112 N. Y. at 177. ; 4 For an illustration of the first of these two schemes of disposition, see ‘Ward v. Ward, 105 N. Y. 68 (74 et seg.); and of the second, Wells v. Wells, 88 N. Y. 823 (388). 108 SUSPENSION BY EXPRESS TRUSTS. (CH. Iv. depend on the particular provisions of each instrument, but the court is ‘‘in duty bound” to reject a construc- tion which will render the limitations too remote, and result in a failure of the trust, if any fair and reason- able interpretation of the language enables it to save the dispositions and give effect to the will of the creator of the estate. But in Ward v. Ward,’ there was a de- vise in trust for A during her life, the property to be divided on her death and held in two separate funds for B and C during both their lives, and after the death of both then to vest. This scheme was held invalid, be- cause here all the property was to remain tied up during three lives. If provision had been made that on the death of the first of the two persons, B and O, his share (which would then have already passed through two lives), should vest, the scheme would have been unob- jectionable.2 But as each share exhausts the two lives designated to measure it, it must immediately, if the scheme is valid, become freed from the suspension, and vest beneficially somewhere. For if an attempt should be made to have a share held in trust for one life, and then divided into parts each to be held in trust for a separate second life, and then each sub-share to be still further held in trust after the expiration of its second life, for the still remaining survivors, the scheme would run counter to the statute.’ § 179. But the trusts need not be separately framed, for if the interests of the beneficiaries are given in shares, the separable and distinct character of the trust provisions necessarily results.‘ All that is requisite is 1105 N. Y. 68 (75). ° Cf. Matter of Mason, 98 N. Y. 527. * Except in the single case where a trust may continue for a minority after two lives, Manice 0. Manice, 43 N. Y. 308 (875 et seq.) “Stevenson o. Lesley, 70 N. Y. 512 (516); and see Bingham », Jones, 25 Hun, 6; and cf. Bevan o. Cooper, 72 N. Y. 317 (819); Matter of Verplank, § 180 } TENANCY OF THE BENEFICIARIES. 109 that the intent to have the estate contemplated as theoretically divided into separate parcels or portions, Should appear. Even this much need not be explicitly expressed.’ Indeed, a provision that the entire prop- erty shall remain actually undivided until final distri- bution, except as portions from time to time should drop out of the general estate and vest, is not incon- sistent with a separation of the interests of the benefi- ciaries, in contemplation.” § 180. It is thus seen that the critical question is not whether there is or is not a direction, express or implied, for a physical division of the property into separate portions, but whether the beneficial interests of the devisees, legatees or beneficiaries are or are not distinct from one another. If they are dis- tinct, the persons interested are said to be tenants in common.® If they are not distinct, and the single sus- pension envelopes them all, and holds them all in its grasp throughout the entire term, the persons inter- ested are said to be joint tenants. This use of the terms joint tenancy and tenancy in common, to de- scribe the interests of beneficiaries of a trust, in whom, by the nature of the case, no title whatever is vested, ‘91 N. Y. 439 (443); Wells v. Wells, 88 N. Y. 323 (333); Savage ». Burnham, 17. N. Y. 561 (570 et seg.); Mason v. Mason’s Ex’rs, 2 Sandf. Ch, 482; Dickie ». Van Vieck, 5 Redf. 284; Hunter ». Hunter, 31 Barb. 334 (338). 1 Vanderpoel v. Loew, 112 N. Y. 167 (177); Matter of Verplank, 91 N. Y. 439 (443), Wells v. Wells, 88 N. Y. 323 (833); Stevenson v. Lesley, 70 N. Y. 512; Savage v. Burnham, 17 N. Y. 561 (570 e¢ seg.); Surdam v. Cornell, 116 N. Y. 305. 2 Vanderpoel v. Loew, 112 N. Y. 167 (177). And for illustrations of the treatment of particular provisions and phrases, see, also, Van Brunt v. Van Brunt, 111 N. Y. 178 (187); Gage v. Gage, 48 Hun, 501; Everitt o. Everitt, 29 N. Y. 89 (78 et seg.); Mason », Mason’s Executors, 2 Sandf. Ch. 432; Colton ». Fox, 6 Hun, 49; Van Schuyver v. Mulford, 59 N. Y. 426 (483); and cases cited ante, note 1. > Amory v. Lord, 9N. Y. 403 (415 et seg.); see Everitt v. Everitt. 29 N. Y. 39 (82 et seq.) 110 SUSPENSION BY EXPRESS TRUSTS. ([CH. IV. is of course somewhat inaccurate, or at any rate it im- parts to these terms a derived or secondary meaning which did not formerly belong to them. However this may be, the terms are now used, in the present connec- tion, to describe the interests and mutual relations of the interested parties, whether these parties be actual holders of the legal title, or merely beneficiaries under a trust, and possessed only of a right to enforce the performance thereof in equity. § 181. The scheme of dividing the trust estate, whether actually or in contemplation, into shares, each of which may have its term of suspension measured separately, does not necessarily take effect during the first life. For the whole estate may be held in trust for one beneficiary for life, and on his death may then be divided into shares each of which may be held in trust for a separate second life... And so, also, where the original interests are considered as divided into shares, in the first instance, their divisibility is not thereby ex- hausted. For when any given share has passed through one life, it may be again divided up into sub-shares, each of which may continue for a further term of its own, for one life, and a different life may be designated to measure the duration of each sub-share. § 182. This is well illustrated in Meserole v. Meserole,? and the scheme of division and subsequent sub-division which was there sustained may be best shown by the following diagram, setting forth the division of inter- * Vanderpoel 0. Loew, 112 N. Y. 167 (181); Wells v. Wells, 88 N. Y. 323 (324, VI, 338); Moore ». Hegeman, 72 N. Y. 876 (883, 384.) * Meserole 0. Meserole, 1 Hun, 66. (The opinion in Pray v, Hegeman, 92 N. Y. 508, overruling this case, does not affect its bearing on the present point.) See, also, Palms . Palms, 68 Mich. 355. §-184.] THNANCY OF THE BENEFICIARIES. 111 ests into niné shares, and the subsequent sub-division of three of those shares into ten sub-shares. Thus: 3 1 2 8 women ef ak tr tz vr 3 3 3 3 1 1 3 3 3 ve oe Bo 35 35 35 ae to oe oe § 183. It thus appears that the share consisting of 7, and held in trust for A for his life, was at his death to be subdivided into three sub-shares to be held in trust each for the life of a separate person. These sub- shares consisted respectively of 3,,8,and 3,._ The orig- inal interests of D and of G were also on their respec- tive deaths to be subdivided in the same way. Taking the sub-share ,3, as an instance, we see that is inalien- able first during the life of A. That is one life. Then it is further held in trust during the life of one other person. That makes up two lives. Then it is freed from the trust and vests. The same is true of each of the other sub-shares. As to each, the trust continues for only two lives.? § 184. A question has sometimes been raised, in cases where, on the death of each beneficiary, a subdivision of his interest was directed, and the sub-shares were to be held in trust respectively for the survivors, whether, in the absence of any clear directions, it is to be assumed that upon the death of a second beneficiary, the sub- share which he had thus received was to be again sub- divided along with his own full share, and held in trust for the still remaining survivors, or whether it might be 1 For other cases illustrating the divisions into sub-shares see Moore 2, Hegeman, ante, § 176; Vanderpoel v. Loew, 112 N. Y. 167 (181 e seg.) 112 SUSPENSION BY EXPRESS TRUSTS. [CH. IV. assumed that the direction for subdivision and contin- uance of the trust applied only to each original share, on the death of its first taker. On the former assump- tion the testator’s purpose would be illegal, while on the latter it would be valid. And the question has been decided in favor of the latter assumption.t. As Finch, J., expresses it, ‘‘ The fraction of a share which has been twice immersed in the common fund and each time by an affirmative and specific direction, is not to be drowned in ita third time upon presumption, and without ex- plicit command, and to the utter destruction of the entire trust.” § 185. In the instances already noticed, where the principal estate or fund was held in solido and the bene- ficiaries were tenants in common of their rights, and where consequently, each undivided share vested at the termination of the term of suspension applicable to it, there the ultimate devisees or legatees in whom the respective shares thus vested, at once become tenants in common with the trustee. For so long as the trust continues as to any of the shares the title of the trus- tees in those shares continues. As between themselves they are joint tenants of the undivided shares still held in trust; but as between them and the devisees or leg- atees in whom the other undivided shares have vested in possession, they are tenants in common. B. Where no Intent is Shown. § 186. In the cases we have just been considering, the trust instrument indicated the purpose of the cre- ator of the trust either that the interests of the benefic- jaries should be in common; or that they should be ‘ Vanderpoel v. Loew, 112 N. Y. 167 (188 et seq.); Everitt v. Everitt, 29 N. Y. 39 (85); see, also, Oxley ». Lane, 35 N. Y. 340 (349): Manice v. Ma- ‘nice, 438 N. Y. 303. § 187.] TENANCY OF THE BENEFICIARIES. 113 joint. In the other class of cases above referred to,‘ the property is also given to the trustees to be held in solido, the income to be applied or paid over to a plural- ity of beneficiaries, but there is an absence of control- ing indications of intent as to the kind of tenancy which is to exist among the beneficiaries. In such cases it becomes important to consider whether the law will still recognize the existence of the same distinction be- tween joint and common interests, and on what princi- ples it will proceed in assigning a given trust to the one or the other class. In proceeding as we shall now do, to the examination of this question, it is desirable in the first place, and for the moment, to lay aside the consid- eration of the respective interests of the beneficiaries under trusts, and by way of introduction to the subject in hand, to state briefly the law governing the respec- tive interests of two or more out-and-out owners in their own right, of an undivided corpus, first of real es- tate, and secondly of personal property, both at the common Jaw and under the Revised Statutes. (a.) The Common Law Presumption of Joint Tenancy. $187. When, at the common law, land was granted or devised to two or more persons, as to A and B, with- out further explanation of the nature of their tenancy, they were regarded as joint tenants. The meaning of this phrase is that the several tenants were looked on, in a sense, as constituting one composite person who owned the whole of the land and all its parts.*, Looked at from another point of view, it was considered that each of the tenants was in possession of the whole of the land. This idea was expressed by saying that each tenant was seized per my et per tout, that is, of his own 1 Ante, § 174. 2 Williams on Real Property, 132 et seq. 114 SUSPENSION BY EXPRESS TRUSTS. [CH. IV. share and also of the whole. Out of these conceptions arose the distinguishing incident of such tenancies, known as “‘survivorship,”’ by which, as each tenant died, his interest survived to those who remained, and so fi- nally to the last of all, and then to his grantees, or on his death, if the estate is one of inheritance, to his heirs or devisees. For as the survivors had always been seized of the whole, this all embracing interest of theirs still continued after the death of each of the others. And as the survivors owned it all, nothing passed to the heirs or devisees of those previously deceased. § 188. Tenancy in common, on the other hand, arises where each of a plurality of tenants is seized not of the whole, but only of an undivided share of the whole. In this case each is said to be seized per my et non per tout, that is of his own undivided share, and not of the whole. Joint tenants, therefore, have one estate in the whole and no estate in any separate and distinct part ; while tenants in common have several and distinct es- tates in their respective undivided parts.1. And the dis- tinction between them is expressed by saying that each joint tenant has an undivided share of the whole ; .and each tenant in common has the whole of an undivided share. In the latter case, there is no ‘“ survivorship,” and each tenant may convey his share absolutely, or upon his death, if his estate is one of inheritance, his share passes to his heirs or personal representatives, and not to the surviving tenants, who never had any in- terest in any part of the property except their own respective undivided shares. And as the distinguishing incident of joint tenancy is survivorship, so a leading characteristic of tenancy in common is that each tenant is deemed to have a several and distinct freehold, and | 1 Preston on Estates, 137. § 190.) TENANCY OF THE BENEFICIARIES. 115 is considered to be solely or severally seized of his un- divided share.} § 189. The common law rule already stated, that where land was transferred simply to two or more, their tenancy was taken to be joint rather than several, is sometimes stated by saying that there was a presump- tion in favor of joint tenancy. This presumption arose from reasons connected with the old feudal system ; and it could only be over-ridden by the clearest expres- sion of an intention to create a tenancy in common and not a joint tenancy. In equity, however, although it recognized the rule and followed the law, the leaning was the other way. And in wills more latitude was al- lowed, and the same intense strictness of presumption was not enforced. (b.) The Statutory Presumption of Tenancy in Common. (1.) Real Property. § 190. With the lapse of time, and from the changed needs of society in this country, this rule of presump- tion lost both the reason for its existence and its value, and in 1786 it was done away with in New York, except in the case of executors and trustees.?- And the law then enacted, and re-enacted in the N. Y. Revised Statutes,’ has ever since been the law of New York.‘ This provides that ‘“‘ Every estate granted or devised to two or more persons, in their own right, shall be a ten- ’ For fuller discussion of tenancy joint and in common, see Williams on Real Property, Chap. VI; Williams on Personal Property, Part IV, Chap. II; 2 Blackstone, Comm., Chap. III; 4 Kent, Comm., 357. 21 Greenl. Laws, 207, § 6. 31R.S. 727, § 44; Mich. G. 8. § 5560; Minn. G. 8. § 3958; Wis. A. 8. § 2068 ‘ For the application of the present rule, see Purdy ». Hayt, 92 N. Y. at 453; Mott v. Ackerman, 92 N. Y. at 549; Gage v. Gage, 48 Hun, 501; Campbell v. Rawdon, 18 N. Y. 412. 116 SUSPENSION BY EXPRESS TRUSTS. [CH. IV. ancy in common, unless expressly declared to be in joint tenancy; but every estate vested in executors or trus- tees as such, shall be held by them in joint tenancy. This section shall apply as well to estates already cféated or vested as to estates hereafter to be granted or devised.” (2.) Personal Property. £191. In regard to personal property, the same dis- tinction between these two kinds of tenancy, and the same presumption in favor of joint ownership, were ap- plicable, at common law.’ In 1857, in a case? decided by Bradford, S., the bearing of this rule of presumption upon dispositions of personal property was before the court. A testator had left one-sixth of his personal estate to ‘William C. Slocum and Franklin Slocum.” The Surrogate quotes the statute already cited,® revers- ing the presumption of the common law, and says: “This provision relates to real estate, and not to per- sonal.” And in the absence of any expression of sev- erance in the terms of the gift, he held that the lega- tees took jointly. In 1875, however, in a case before the Supreme Court,‘ it appeared that testator had given to three persons an estate for years in real property. The court call attention to the fact that such an estate ‘‘is treated as personal property in every respect,” and decide that ‘‘ these devisees, therefore, took the gift to them as tenants in common, notwithstanding it is per- sonal property; for it is provided by statute, that every estate devised to one or more persons shall be a tev- "Campbell v. Campbell, 4 Bro. 15. Although the subject of suspension of the absolute ownership of personal property is to be taken up later, by itself, it will be more convenient to consider at this point the bearing of the principles under discussion to dispositions of personal property. 2? Putnam v. Putnam, 4 Bradf. 308. 31. S. 727, § 44. ‘ Blanchard ». Blanchard, 4 Hun, 287. § 192.] TENANCY OF THE BENEFICIARIES. 117 ancy in common, unless expressly declared to be in joint tenancy (1 R. S. 727, § 44), and that provision embraces all estates in land, whatever may be the dura- tion of them.” The meaning of this decision appears to be that the statute applies to this particular kind of personal property, because this gift entitled the so- called devisees to the possession of land, though only for a term of years. And the court add: ‘The remark of Surrogate Bradford on this subject, in Putnam v. Putnam, was too broad.” This case was affirmed by the Court of Appeals, without opinion. § 192. In 1880, in Lane v. Brown,’ the same question was before the court, except that the personal property did not consist in a term for years. But here the gift was a future one, vesting in remainder at testator’s death but taking effect in possession only on the termi- nation of a precedent life interest. The provisions of the will were said to be sufficiently explicit, in them- selves, to leave no room for presumption, but the ques- tion is discussed by the court, who consider section 44 applicable here by force of 1 BR. S. 773, § 2, which pro- vides that in all respects (except suspension of owner- ship) ‘limitations of future or contingent interests in personal property, shall be subject to the rules pre- scribed in the first chapter of this act, in relation to future estates in lands.” One of the rules prescribed in that chapter, and applicable to future as well as present estates in lands, is section 44, reversing the common law rule of presumption. Citing these two statutory provisions, the court say: ‘‘We agree with Gilbert, J., in Blanchard v. Blanchard,’ that the remark ' 1 Blanchard ». Blanchard, 70 N. Y. 615. 220 Hun, 382; and to same point, Matter of Lapham, 37 Hun, at 18, where the interests to which the statute was applied were also future. 3 4 Hun, 287. \ 118 SUSPENSION BY EXPRESS TRUSTS. ([CH. 1V. of Surrogate Bradford in Putnam v. Putnam,’ was too broad.”’? The court also say: ‘‘It must be considered that the tendency of English institutions was towards the consolidation of interests and the perpetuation of estates, while the leaning with us is in favor of sub- division and separate enjoyment.” And they explain Putnam v. Putnam,’ on grounds peculiar to the particu- lar will and going to show testator’s intent to create a joint tenancy. § 193. The question is also discussed in Everitt v. Everitt. In that case there was, in the opinion of Denio, Ch. J., a trust of personal property, to be suc- ceeded by a future estate in several legatees. And in discussing the question of their tenancy, he says: “If we * * * Jook only to the period when an absolute interest will vest in the children, two questions will arise: first, whether they take the bequest as tenants incommon. * * * The bequest constituted the leg- atees tenants in common, and they took distributively and not jointly. It has long been a provision of stat- ute law that a grant or devise to two or more persons in their own right, creates a tenancy in common, unless expressly declared to be a joint tenancy. * * * Tt would be impossible to maintain, in the face of such language [as that in the will], that the residue was given to them jointly or otherwise than as tenants in common, even if the statute were not imperative to the same purpose.” Mullin, J., in his opinion, although concur- ring in the result, proceeds on a different course of reasoning, and says nothing on this point. The other 1 4 Bradf. 308. * See, also, Van Brunt v. Van Brunt, 111 N. Y. 178 (187), where also the court apply 1 R. 8. 727, § 44, to a future gift of real and personal property; so, also, in Matter of Blaker, 12 St. Rep. 741. 3 4 Bradf. 308. 429 N. Y. 39 (72). § 196.] TENANCY OF THE BENEFICIARIES. 119 judges making up the majority, appear to concur in the opinion of Mullin, J. This case can, therefore, hardly be cited as an authority on the point in hand, and in any event the words quoted refer only to a future inter- est in personal property. § 194. In Bliven v. Seymour,’ it is held that ‘‘ where a life estate is given to a widow, with remainder to the children, and such remainder vests at once upon the death of the testator, the children take as tenants in common, and the proper share of each vests in each. Such is the express provision of the statute as toa grant or devise of real estate (1 R.S. 727, § 44), and the same rule is applicable to a bequest of personalty, and must be so applied, Hveritt v. Hveritt, 29 N. Y. 39 (72).” Here, also, it will be seen that the interest in question is a future one.’ § 195. The cases thus far cited, therefore, appear to have decided that section 44 applies to personal prop- erty, first, where it consists of an estate for years in land, because that section affects all estates in land irrespective of their duration; and, secondly, where it isa future interest in personal property, because 1 R. S. 778, § 2, renders limitations of future interests in per- sonal property subject to all the rules prescribed in rela- tion to future estates in lands. These appear to be the only cases which furnish decisions directly on the point under discussion. And it is to be noticed that they do not settle the question whether the present statutory rule of presumption is applicable to present interests in personal property. § 196. There is, however, a line of analogous cases the decisions in which bear closely on the present 188 N. Y. 469 (478). * See, also, Matter of Lapham, 37 Hun, 15 (18). 120 SUSPENSION BY EXPRESS TRUSTS. (CH. IV. point. In these, judgment creditors have sought to have the beneficial interests of their judgment debtors under express trusts of personal property, applied to the payment of the debts. It may here be said that it has now been decided that neither the principal, nor such rents and income as are required for the use of the beneficiary, under trusts of either real or personal property, can be reached by creditors of the benefici- ary, but that they may reach the surplus income, both accrued and unaccrued, and have it applied on the judgment as it comes in.t In some of the earlier cases the doctrine on these points had not been fully elabo- rated, and some of the dicta have since been disapproved by the courts. But on the main question of the inalien- ability of the income (apart from surplus not needed) under a trust of personal property, Graff v. Bonnett, and Campbell v. Foster® may here be referred to. In the former, the receiver of a judgment debtor who was also beneficiary under a personal property trust, sought to recover from the trustees the income from the trust fund since the date of the receiver’s appointment. The case went off on a point of pleading, but the court considered the question of the rights of creditors to income from a trust fund. The court say,‘ that the answer to the question whether the interest of a bene- ficiary can be reached by creditors, depends on whether 1 B.S. 727, § 63, making inalienable the interest of a beneficiary under a real estate trust, was, by 1 B.S. 773, § 2, already cited, rendered applicable to personal prop- erty. The court decide that 1 R.S. 773, § 2, does render personal property subject to 1 R. 8.727, §63. They say, in substance, that it is undeniable that if the interest in ' Williams ». Thorn, 70 N. Y. 270. 231 N. Y. 9. 335 N. Y. 361. 431 N. Y. 9. § 198.} TENANCY OF THE BENEFICIARIES. 121 question were in the rents and profits of land, it would not be assignable; and that even if the provisions of the statute (773, § 2) were not sufficiently comprehensive absolutely to require, as a peremptory injunction of statute law, their application in all their length and breadth, and in the same degree, to both classes of property ; the argument to be derived from the general similarity of the legislative enactments, in regard to both classes of property; from the similar if not equal mischiefs to be remedied ; and from the general policy of the law, would authorize a court of equity, in the exercise of its acknowledged powers, to apply the same rule of construction to both. It is to be noticed that in Graf v. Bonnett the interests under discussion were present and not future. § 197. In the second case above referred to,' the case also was decided on a question of pleading, but the court consider the same subject and say: ‘‘I regard this case (Graf v. Bonnett) as settling, in this court, the mooted question of statutory construction, making ap- plicable to trusts of personalty the provision prohibit- ing alienation of the interest of the beneficiary in trusts of land.” § 198. These two cases in the Court of Appeals, therefore, supported by the decision in Williams v. Thorn,’ that the same rules are applicable to both classes of property, are authority on the following point, namely: that where an interest in personal property is of such a character that it would on any grounds, if it were a future interest, be subject to the rules in relation to estates in lands, the mere fact that it is a present instead of a future interest will not interfere with that ' Campbell v. Foster, 35 N. Y. 361. 270 N. Y. 270. 122 SUSPENSION BY EXPRESS TRUSTS. [ CH. Iv.. result, at any rate in cases where the gerieral reasons advanced in Graff v. Bonnett are equally applicable. According to this principle, inasmuch as it is settled that the rule of presumption prescribed in 1 R. S. 727, § 44, is applicable to future interests in personal prop- erty, it seems naturally to follow, that from the general policy of the law, and on the other grounds stated by the court in Graff v. Bonnett, the same rule of presump- tion is applicable to present interests in personal prop- erty.’ § 199. In addition to the cases already discussed or cited, there are a number of decisions in which, although the point was not directly before the court, the general applicability of the new rule of presumption to per- sonal as well as to real property is taken for granted. And it is now unquestionable that the English rule of presumption in favor of joint tenancy has been com- pletely reversed in New York, in respect to real prop- erty by the statute, and in respect to personal property either by the statute, where the interest is futwre (1 R. 8. 723, § 2), or in accordance with the principles laid down in Graff v. Bonnett,’ and already stated in § 196, which would be applicable to both present and future interests. § 200. The rules which have now been stated, in regard to the tenancy of persons holding a vested title ‘On the general applicability of § 44 to personal property, see, also, Cook v. Lowry, 95 N. Y. at 111. ? See Matter of Lapham, 37 N. Y. 15 (18); and Everitt 0. Everitt, 29 N. Y. 39 (72 and 73), where, however, the present interest was that of bene- ficiaries under a trust, and the vested interest was a future one. Also Smith ». Edwards, 88 N. Y. at 103, where the money legacy vested in the several legatees as tenants in common. The court say that the testator’s purpose in respect to tenancy is clear from the phrasing of the will; but they also cite the statute (§ 44) as applicable. ‘ 331N. Y. 9. § 204. ] TENANCY OF THE BENEFICIARIES. 123 to either a present or a future estate in either real or personal property, may be summed up as follows: § 201. (1.) A grantor or devisor of land may now, as heretofore, constitute the grantees or devisees joint tenants, or tenants in common, by the use of appropri- ate expressions of intention. The same rule applies in the case of personal property. § 202. (2.) But unless the grantor or devisor of land expressly constitutes them joint tenants, the statute makes them tenants in common. § 203. (3.) This same statute is, by force of 1B. S. 773, § 2, rendered applicable to all future and contin- gent interests in personal property. It is also appli- cable to such interests in personal property as give the possession of land. To all other present interests in personal property it appears to be also applicable under the decisions in Graff v. Bonnett, and Campbell v. Foster, and the reasoning of the dictum in Matter of Lapham. § 204. The foregoing consideration of the distinction between joint tenancy and tenancy in common, in the case of persons having an estate in lands or an ownership in personal property, in their own right, has been taken up at this point as an introduction to the discussion now to follow, of the corresponding distinction between joint interests and interests in common in the case of beneficiaries under an express trust.' For it is again to be noticed that whereas the persons whose respective tenancies we have just been considering, enjoyed estates, the beneficiaries under a trust, whose respective 1 This discussion also bears directly upon the question of suspension occasioned by future contingencies, and that of postponement-of vesting. 124 SUSPENSION BY EXPRESS TRUSTS. ([CH. IV. interests we are now about to consider, take no estate or interest in the lands, but merely a right to enforce the performance of the trust in equity, the whole estate, in law and in equity, being in the trustee.’ (c.) The Presumption in Case of Trusts. § 205. It has already been seen, that if the creator of the trust clearly evinces his intention of making these rights of the respective beneficiaries joint inter- ests, or of making them interests in common, the law will recognize the distinetion as valid, and will construe the trust accordingly. It now remains to consider, in cases where the intention is either not clearly or not at all evinced, upon what principles the law will proceed to determine whether the interests of several bene- ficiares are joint or in common, and whether it now re- cognizes any presumption in favor of either class, anal- ogous to the presumption already discussed. § 206. This question was before the Court in Zoril- lard v. Coster,? and the reasoning of Chancellor Wal- worth upon it may be briefly stated, in outline, as fol- lows: He calls attention to the fact that in the 55th section of the statute relating to uses and trusts, the third class of express trusts, to receive the rents and profits of lands and apply them to the use of the bene- ficiaries, is by its terms made subject to the rules pre- scribed in the first article of the title relating to the creation and division of estates.‘ One of the sections of that title is the rule already quoted, which provides that ‘‘every estate granted or devised to two or more ‘LR 8. 727, § 60; Mich. G. 8. § 5578; Minn. G.'S. § 4014; Wis. A. S. § 2086. 25 Paige, at 228-9. 51R. 8. 728, § 55. “1R. S. 722, § 1 et seg. § 208.] TENANCY OF THE BENEFICIARIES. 125 persons in their own right, shall be a tenancy in com- mon, unless expressly declared to be in joint tenancy ; but every estate vested in executors or trustees as such, shall be held by them in joint tenancy.”! In the view of the chancellor, the effect of section 55, sub. 3, above. cited, was to render this section 44 applicable to the in- terests of beneficiaries under the trust. As thus con- strued the statute would be understood as if it read as follows: Every estate granted or devised to two or more persons in their own right, and irrespective of whether they take the title or merely a right, as bene- ficiaries, to enforce the performance of a trust in equity, shall be a tenancy in common unless expressly declared to be a joint tenancy. § 207. Another view of the question was stated by Chief Justice Savage, in the same case, on appeal in the Court of Errors,’ who says that the idea of joint ten- ancy or tenancy in common has no application to the. right of action possessed by beneficiaries, and calls at- tention to the fact that the statute expressly provides that the beneficiaries shall have no ‘“‘estate’’ whatever; while the section bearing on tenancies deals only with “estates.” § 208. A third explanation was offered by Mr. Justice Nelson in the same case,° who agrees with the chancel- lor, and attempts to meet the arguments of the chief justice, by admitting that ‘‘upon a strict and literal construction of this section (sec. 60), it is obvious that the uephews and nieces (the beneficiaries) have but a chose or right in action. The expression ‘no estate or interest in the lands’ would seem entirely to exclude it 11 R.S. 727, § 44. * Coster v. Lorillard, 14 Wend. 315-16-17. 3 Coster v. Lorillard, 14 Wend. 335 e¢ seg. 126 SUSPENSION BY EXPRESS TRUSTS. [CH. IV. when the interests of the cestuis que trust are the subject of consideration.” Thatis not, however, in his view, the just and sound construction of the section, when we are engaged in ascertaining the interest or estate of the beneficiaries, to the enjoyment of which they are en- titled. ‘‘By the 55th section,” he says, ‘‘ the express trust allowed by the third sub-division is made subject to the rules prescribed in the first article. That article is devoted to the creation and division of legal estates, and it seems necessarily to follow, that the rules there prescribed concerning these estates are to govern the interest, or trust, or whatever other name the right may be called, that belongs to the nephews and nieces [the beneficiaries] under the second article” (relating to trusts). - § 209. It is believed, however, that irrespective of the merits of these arguments concerning the applica- bility of section 44 to the interests of beneficiaries under trusts, and of the weight which may sometimes be given to tbem, still another line of reasoning which has been marked out renders it unnecessary in many cases to resort to them. This appears in the case of Ma- son v. Jones,’ where it is said that the directions of the will ‘‘show very clearly’ that the testator intended the trustees to take-and hold the property devised, in four equal undivided shares, each share under a separate trust. But, nevertheless, the court add: “ Even if the will is capable of receiving a different interpretation, for the want of words of severance in the immediate devis- ing clause, yet when the whole is looked at, it is not perceived that any violence is done to its language, or to the general import of the instrument, by adopting this as the preferable meaning. The court is bound by 12 Barb, 229 (242). § 210.] TENANCY OF THE BENEFICIARIES. 127 that familiar principle which prevails both at law and in equity, that where a deed or a will admits of a two-fold construction, one of which would render it void, and the other would uphold it, to give it that construction which will leave it effectual in law.” And in Cromwell v. Crom- well,’ there appears to have been a trust for three bene- ficiaries, and the court held that the beneficiaries took their interests as tenants in common, saying: ‘‘It is the duty of the court to give effect to the whole will, unless some part or parts of it are clearly against the provisions of the statute or the policy of the law. The will can be supported and the complainant’s bill must be dismissed.” In Harrison v. Harrison, the Court of Appeals apply this same principle to the decision of the point now under discussion, and say: ‘‘It is a funda- mental principle of construction in regard to all instru- ments and contracts, ut. res magis valeat quam pereat,* that is to say, the instruments should rather be made available than suffered to fail. Effect should be given to the-whole instrument, and to every part of it, if it can be done without violating the rules of law. And it is very evident that effect cannot be given to this will, and to the manifest intent of the testator, except upon the theory of the separability of the shares of the six children of the testator in the estate held in trust for them.’ § 210. Such was the state of the law on the subjects thus far discussed, at the time of decision of the recent -case of Hillyer v. Vandewater? 1 2 Edw. Ch. 495. 236 .N. Y. 543. 3 For further authorities on this general rule, see DuBois v. Ray, 35 LN. Y. 162 (165 et seg.); Post v. Hover, 33 N. Y. at 601. 4 See, also, Matter of Verplanck, 91 N. Y. 439; Cromwell v. Cromwell, 2 Edw. Ch. 495. 5 94 N. E. Rep. 999; 8. c. without opinion, 121 N. Y. 681. 128 SUSPENSION BY EXPRESS TRUSTS. ([CH. IV. § 211. This case was a most peculiar one, offering a wide field for differences of opinion in the view to be taken of testator’s meaning and purposes, and the rela- tive bearing of different parts of his scheme, and the decision can hardly be given much weight as a general authority. Light may be gained, however, from the opinion in which Finch, J., treats of the subject now under discussion. § 212. The testatrix left a will of both real and per- sonal property. She had four daughters, Mary, Ade- laide, Susan and Margaret. She appointed Mary and Adelaide her executrices, and after directing the pay- ment of the debts and two small money legacies, she left all the residue to them in trust, to receive the rents, issues and profits, pay for insurance, repairs, rebuilding and other necessary expenses of management, and divide the residue of the rents, issues and profits, into three equal portions, and for ten years after the decease of the testatrix to pay over one-third thereof to Mary, one-third to Susan, and one-third to Margaret; and at the expiration of the ten years, to convert the same into money and distribute the same among the three daugh- ters last named, share and share alike. The direction to sell and distribute at the end of the ten years was im- perative. There was also a discretionary power, dur- ing the ten years, to sell, lease, mortgage and dispose of both real and personal property, but nothing was said about any distribution before the end of the ten years. § 213. The question before the court was, whether or not these provisions suspended the absolute power of alienation of the real estate, and the absolute ownership of the personal property, for more than two lives. Finch, J., says: ‘‘It is contended that by this trust the power of alienation as to the real estate, and the abso- § 214.] TENANCY OF THE BENEFICIARIES. 129 lute ownership as to the personal property, are sus- pended for the ten years, and possibly for more than two lives in being, and so the devise is invalid and must fail. That is true if we are obliged to regard the trust as a single and indivisible limitation, and as constitut- ing one trust for three persons jointly instead of three several trusts for each one respectively.” ‘The ques- tion involved is, therefore, that of the divisibility of trusts seemingly constructed as one, and only arises where the separate trusts are aggregated into a single one by the language of the will, and so are apparently one and not many.” He, therefore, takes up the exact question now under discussion, and in entering upon his statement of the principles which guide him toa conclusion, it is well to recall that we have heretofore found two distinct rules of guidance laid down; (1), that the matter is controlled by 1 R. 8. 727, § 44; either di- rectly, or by force of other statutes, or by analogy; (2), that it is controlled by the principle that where either of two constructions can be placed on an instrument, that one must be adopted which will render it valid, and not that which will render it invalid. § 214. Finch, J., takes up the former of these rules, and says: ‘‘Obviously very much depends upon the manner in which we approach the inquiry, and the pre- sumptions which are controlling. If we come to it on the theory that the form of expression, as of a single trust, is prima facie to dictate the conclusion, and that no severance is to be adjudged, unless some words or provisions are to be found on the face of the will which affirmatively indicate in the testator’s mind the pres- ence of such a purpose, we are very likely to be troubled sometimes to find them, and to be forced to a destruc- tion of the trust by reason of their absence. If, on the other hand, notwithstanding the devise in solido and 9 130 SUSPENSION BY EXPRESS TROSTS. _ [CH. IV. the admitted joint tenancy of the trustees, the inter- ests of the beneficiaries as between themselves are pre- sumptively held as tenants in common, and conclusive- ly so unless some provisions of the will positively neg- ative that relation, then we need no help from a minute exploration of the will, but must only inquire whether the several ownership is impossible or forbidden.” After stating the views of the courts in Lorillard v. Coster, Coster v. Lorillard, Savage v. Burnham, Everitt v. Everitt, and McKinstry v. Sanders, he says: ‘‘I have thus recalled the statutory rule of construction because in examining the later cases I have imagined that it has not always been given its due force, and that as a consequence, we have sometimes (myself as often as any) borne heavier burdens in the endeavor to save the reasonable purposes of a testator than the necessities of the case required. It follows that in examining the present will, we are to assume that the three children took as tenants in common, unless that is impossible or forbidden. Whether it is so or not remains the subject of consideration.” § 215. In the course of his examination of the pro- visions of the will in hand, he determines that the re- mainders which were to follow the trust estate, vested (in interest) at the death of the testatrix, and that the beneficiaries took this remainder as tenants in com- mon, under the statute (sec. 44). Returning then to the subject of their respective interests as beneficiaries under the trust, he says: ‘Of course, the trust must be deemed to correspond (to their interests in the remain- der), and becomes divisible into a separate trust for each ; for while it (the trust) is the mould which holds in its clasp the beneficial interests, it takes the exact shape which those interests assume, and fits like a § 218.) TENANCY OF THE BENEFICIARIES. 131 mould to every characteristic of the case. The death of either one would vest her share in her heirs or next of kin.” § 216. This latter argument concerning the interests of the beneficiaries, derived from the nature of their tenancy in the vested remainder, weakens the force of the argument on the application of the statutory rule to the interests of beneficiaries under trusts, for it tends to withdraw the case in hand from the class of cases where no intent can be derived from the provisions of the instrument, and brings it within the class where the testator has indicated which class of tenancy he intends to create. As, however, the opinion does not speak for a majority of the court, in its reasoning, it can only be taken as a deliberate and important statement of the views of three judges, and as. such it may be stated thus: Where the remainder is vested in the benefi- ciaries as tenants in common, their interests under the trust will correspond, and will also be in common and not joint, and even if this indication of their nature were wanting, the statutory presumption in favor of tenancy in common would apply to their rights under the trust. § 217. The various principles which have just been discussed, concerning the so-called tenancy of benefi- ciaries under trusts of both real and personal property, may now be summed up as follows : § 218. (1.) A testator or grantor may lawfully create disconnected trusts, each relating to a separate and dis- tinct parcel or fund, and may prescribe tor each its own term measured by two lives. The beneficiaries then hold, so to speak, in severalty. 1382’ SUSPENSION BY EXPRESS TRUSTS. (CH. IV. $219. (2.) He may lawfully give land or personal property toa trustee to be by him physically divided into distinct parcels or funds, and to be held each for its own term of two lives. Here also the beneficiaries, after the division, hold in severalty. § 220. (3.) He may lawfully give land or personal property to a trustee to hold in solido, and direct, either in terms or by implication, that the beneficiaries shall be joint tenants or shall be tenants in common, in their rights under the trust; and if they are thus made ten- ants in common, each individual share of the beneficial right may continue under the trust for its own separate, term measured by two lives. § 221. (4.) He may give land and personal property to a trustee to hold in solido, without disclosing any in- tention concerning the kind of ‘‘tenancy” to be en- joyed by the beneficiaries. Jn such case, there are two concurrent rules for determining whether they shall take joint interests or interests in common, namely : § 222. (a.) That the statutory provision creating a presumption in favor of tenancy in common is, by 1 B.S. 728, § 55, rendered applicable to the rights of beneti- ciaries under the third class of trusts of real estate. It cannot be said that this is settled, though it is now and then referred to with more or less approval. Its appli- cability in trusts of personal property has received no separate discussion by the courts.!. Where the corpus of the trust estate includes both real and personal prop- erty in its make up, and it is evidently clear that the testator intended both to form one fund, and share the same fate, the kind of ‘tenancy enjoyed by the benefi- ' For suggestions on this point, see Matter of Lapham, 37 Hun, 15; Ever- itt v. Everitt, 29 N. Y. 39. , § 223.] TENANCY OF THE BENEFICIARIES. 133 ciaries in their interests in the total trust estate will naturally be determined as if the whole estate were realty. From a decision in such a case, therefore, that the beneficiaries are tenants in common, or are joint tenants, it does not necessarily follow that the decision would have been the same if all the trust estate had consisted of personal property. In other words, such cases cannot be relied on, by themselves, as settling the proposition, that in determining this question of ten- ancy the same rules will always be applied in real and in personal property trusts. Authority for that state- ment must be sought elsewhere. It would appear, however, that in so far as it may be regarded as settled that the same rule of presumption applies to both classes of property where no trust is involved, and as itis settled that the statutory rule applies to the in- terests of beneficiaries under trusts of real property, that this same rule would also be applied to these same interests where the trust concerns personal property. § 223. (b.) That the accepted rule favoring as be- tween two fairly possible constructions, the one which will sustain rather than the one which will destroy the validity of an instrument, is applicable here, to con- strue the beneficial interests as distinct rather than joint. This principle would be equally applicable in the ‘ease of trusts of real property and of trusts of personal property. It has a good deal of authority in its sup- port, and may probably be looked on as the rule to which the courts will resort when trusts of personal property are involved, while in the case of real proper- ty trusts it may be said to have at least equal force with the rule applying to beneficial interests under trusts the statutory presumption. [OH. IV. 134 SUSPENSION BY EXPRESS TRUSTS. 7. Two Lives in Being. § 224. The measure of lawful suspension adopted by the Revised Statutes’ is simply ‘‘two lives in being,”’ without further qualification or explanation. The stat- ute thus prescribes the number of lives, but it does not designate any class of persons from among whom the two lives must be selected. In the case of suspensions occasioned by trusts, however, an earnest controversy has been carried on over the question whether another section of the statutes? does not make it requisite to designate beneficiaries of the trust as the persons by whose lives the term shall be measured. § 225. For the present purpose, these two statutory provisions may be stated as follows: 1 BR. S. 723, § 15. The absolute power of alienation, shall not be sus- pended 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.’ L BR. S. 728, § 55. An express trust may be created to apply rents and profits to the use of any person during the life of such person, or for any shorter term. § 226. And it has been asserted that section 55 thus practically provides that the lives by which the trust term must, under section 15, be measured, must be the lives of the beneficiaries themselves. This view was adopted and expressed in Downing v. Marshall,‘ in a ‘TR. S. 723,815; 1R. 8.773, §1; Mich. G. 8. § 5531; Minn. G. 8. § 3976; Wis. A. 8S. § 20389. 71R S. 728, § 55, sub. 3; Mich. G. 8. § 5578; Minn. G. 8. § 4018; see Wis. A. S. § 2081. * With one exception, see 1 R. 8. 723, § 16; quoted ante, $ 62. * Downing v. Marshall, 28 N. Y. 366 (377). § 227. ] TWO LIVES IN BEING. 135 dictum which, however, has since been disapproved,’ and in numerous cases where the point now under dis- cussion was not, indeed, called squarely to the attention of the court, they had again and again sustained trusts which would be invalid except on the principle that the lives contemplated by the statute might be any lives, whether those of beneficiaries or not.? But in 1884, the point was brought directly in issue in the Oourt of Ap- peals, and there, after elaborate examination, it was fi- nally decided that the lives of any two persons whatever might be lawfully designated as the measure of the trust term.® § 227. The mutual relations of the two sections, as now established, may therefore be stated as follows: Section 15 deals with the duration of the term of the entire trust, and says in effect, that the whole trust must be begun, carried on, and terminated, within the limit of any two lives that may be designated to measure its duration. ‘It does not dictate what lives; it does not concern itself about their selection ; it does not direct that they shall be chosen from among beneficiaries; they may be those connected with the trust, or total strangers to it; only, they must be ‘in being,’ when the trust is created. That is the sole re- striction, Any two designated lives are made to serve minerely as a standard, or measure of duration, and for that purpose it is not of the least consequence to the statutory intention, whether such lives are those of ben- 1 Bailey v. Bailey, 97 N. Y. 460 (467). ? Haxtun v. Corse, 2 Barb. Ch. 506; Butler v. Butler, 3 Barb. Ch. 304; Gilman v. Reddington, 24 N. Y.9; Manice v. Manice, 43 N. Y. at 386; Woodgate »v. Fleet, 64 N. Y. at 570; Provost v. Provost, 70 N. Y. 141. 3 Crooke » County of Kings, 97 N. Y. 421 (485); Bailey v. Bailey, 97 N. Y. 460 (467); Bevins v. Riley, 24 Weekly Dig. 35. : 136 SUSPENSION BY EXPRESS TRUSTS. _[CH. IV. eficiaries or not.” ! It looks at the trust as one complete whole, and it marks out a gross term during which the trust as a whole may continue, and beyond which it cannot go. But with the time limits of the interest of each beneficiary, within the boundaries of this gross term, this section has no concern. That branch of the subject is taken up in section 55, which, on its part, prescribes how protracted a beneficial interest may. be allotted to each beneficiary while the general trust at large is moving on through its own fixed term. § 228. These respective meanings of the two statu- tory provisions, as applied to. suspensions occasioned by trusts, may be briefly summed up as follows : 1 R. S. 723, § 15. 1 BR. S. 728, § 55. A suspension occasioned Subject to these general by a trust may continueas boundaries, the interest of long as during any two each beneficiary may con- designated lives, and no tinue for his whole life or longer. for any shorter term. § 229. It is evident that whenever the lives of bene- ficiaries are designated as the ones which shall measure the term of the trust, they fall within the view of both of these statutory provisions. Under one section they appear only as the lives of the beneficiaries, and as serv- ing to show how long each beneticiary may enjoy the trust, and under the other they appear simply as two lives arbitrarily selected to measure the limit of the whole term as such. And the manner in which the two provisions play together without friction, is thus stated by Finch, J., in the opinion of the court in Crooke v. County of Kings. ‘The natural term, which is the lives ' Crooke ». County of Kings, 97 N. Y. 421 (436); Bailey >. Bailey, 97 N. Y. 460. ” Crooke +, County of Kings, 97 N. Y, 421 (439). § 230.] TWO LIVES IN BEING. 137 of all the beneficiaries, and the stipulated term, which is the close of the selected and designated lives, may either, taken separately, work out an unlawful trust ; while construed together and in combination as they should be, they bring the trust within the requirement of the statute. The natural term alone might make the trust last beyond the lawful extent of two lives in being. The stipulated term alone might go beyond the lives of the beneficiaries. But the two, combined and made ‘elements of the trust in its creation, effect a lawful du- ration, and limit the trust to the stipulated term, unless before it is reached the natural term expires; or to the natural term, unless before it is reached the stipulated term expires. Unless the language of the will creating the trust imperatively forbids, where both terms are present as elements of the creation, it must be construed to run for the natural term except as shortened by the stipulated term; or for the stipulated term except as shortened by the natural term. * * * Thetrust can outrun neither.” § 230. It follows from the principles thus laid down, that as section 55 deals only with the interest of each individual beneficiary, without restricting the number, and as section 15, in mentioning two lives, does not refer to beneficiaries at all, as such, there is accordingly no limit to the number of beneficiaries. Thus in the Crooke case, there were nine,’ in the Bailey case six. And the trust may also provide for beneficiaries not ascertained. at the creation of the trust, as, for instance, children yet unborn,* and the issue that may be left by a desig- nated beneficiary, in case of his death during the term.‘ 197 N. Y. at 440. 297 N. Y. at 466; and see Shepard v. Gassner, 41 Hun, 326. * Woodgate v. Fleet, 64 N. Y. 566 (571). ‘ Gilman v. Reddington, 24.N. Y. 9 (18); see Harrison v. Harrison, 36 N. Y. at 546. 188 SUSPENSION BY EXPRESS TRUSTS. [CH. Iv. The only requirement is that they must become ascer- tained during the trust term, and that their interest cannot continue beyond the trust term.’ And on the same principle, the use may be shifted from one bene- ficiary to another during the legal term.’ Vx 8. The Four Classes of Express Trusts. § 231. There still remain a number of points for con- sideration, which are not of general application to all express trusts, but relate to one or another of the four classes. These may now conveniently be taken up. Classes 1 and 2: Trusts to Sell; and to Sell, Mortgage or Lease. § 232. Trusts merely to sell for the statutory pur- poses, and whether falling under the first or second class, do not necessarily suspend the absolute power of alienation. It was the opinion of Nelson, Ch. J., as expressed in Hawley v. James,* that no trust could pos- sibly be created under either sub-division, which should result in suspension. But in the light of later decisions this view is seen to be too broad. For even a trust to sell, if not to be exercised until a future date and for the benefit of a trustee who cannot release or assign, may occasion a suspension of the power of alienation.‘ The test of suspension here as elsewhere is, whether on the facts in any given case there are or are not persons in being who can convey an absolute fee in possession. ‘On the question whether a corporation is a person for whose benefit a trust may be created under § 55, ¢f. Adams v. Perry, 43 N. Y. 487 ef seg., and see post, Chap. VIII. * Harrison v. Harrison, 36 N. Y. 543; Gilman v. Reddington, 24 N. Y. 9 (18). 16 Wend. 60 (153 et seg.) 4 Garvey v. McDevitt, 72 N. Y. 556. § 234. ] THE FIRST AND SECOND CLASSES. 139 § 233. The line of distinction between a trust to pay annuities and a trust to apply income is often very shadowy, and the principles of discrimination do not appear to have been clearly determined. The import- ance of the distinction is that the latter trusts belong to the third class and invariably occasion suspension, while annuities, in so far as they may be classified as legacies, or as successive payments of sums in gross, are releasable and assignable, and do not occasion sus- pension. Some light is thrown on the matter by a few cases. § 234. (1.) Hawley v. James! (1836). Here it is said, in the opinion of Nelson, Ch. J., that in regard to an- nuities then under consideration by the court, ‘‘ there is some difficulty in determining whether this trust falls under the 2d or 3d sub-division 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 sub-division. If it may be consid- ered with more propriety a trust to receive rents and profits and apply them to the use of a person, then it falls under the 8d. An annuity may be included with- in the term legacy for some purposes, unless there is something to show that the testator himself distin- guished 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 case of Han- cock v. Horton, 7 Ves. 503, they were considered distin- guishable upon the terms of the will. ' 16 Wend. 60 (117). ‘140 SUSPENSION BY EXPRESS TRUSTS. [CH. Iv.. § 235. “ 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 sub-division. The annuitants being considered legatees or the annuities a charge upon the lands, as they virtually are by the 15th 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 sub-division. 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 be; here it is for the period of the trust term. It is of no other importance under which sub-division this trust is classed, than 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 sub-division, upon the principles stated, still the interest ought to be considered unassignable within the section. It provides that no person benefi- cially interested in a trust for the receipt of the rents and profits of lands can assign or in any manner dispose of such interest. § 236. “If the section stopped here, there could be no doubt even a vested future legacy could not be sold, for the probibition applies to every case of a person inter- ested in the receipt of rents and profits by the trustees. It however goes on: but the rights and interests of every person for whose benefit a trust for the payment of a sum in gross is created is assignable. This qualifi- eation saves legacies and charges which are gross sums: § 237. ] THE FIRST AND SECOND CLASSES. 141 but to include annuities, we must not only consider them as coming with 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 evi- dently 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 sub-division, 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 sub-division. 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 sub-division, 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.” § 237. And in the same case, Cowen, J., says:' “The only thing of any consequence which remains to the express trust, is the duty to raise money and pay the annuities. These, too, are independent legacies . Hawley +. James, 16 Wend. 60 (194). .. si 142 SUSPENSION BY EXPRESS TRUSTS. [CH. LV. given by the early sections of the will. The 7th gives William $2,000; the 8th to Henry, $1,250; 9th to Cath- erine Tillman, $125; 10th to Charlotte James, $100; 11th to Susan Duffy, $200—in the whole, nearly $4,000 in lite annuities. These are legacies which were payable at all events out of the estate; and were directed by the chancellor to be finally charged upon the whole land. They are also doubtless charges upon all the estate of the testator, real and personal; and it is remarkable of all the legacies including annuities mentioned in the will, that they are not made payable out of rents and profits alone. All the moneys and personal property of the estate are charged as well as the rents and profits. They are all put upon the same footing with debts. By the 15th clause of the will, the testator de- clares that the specific legacies and annuities are not to be considered, as charges upon his real estate. He pro- ceeds immediately to declare that they shall be paid out of the rents and profits of his estate generally, without discriminating between real and personal estate, and all his debts are to be paid in the same way. If rents and profits should prove inadequate to the payment of all that he had charged upon the estate, he directs other funds to be resorted to, or temporary loans to be effect- ed; but all encroachments on the capital are to be re- imbursed by rents and profits. He nowhere confines the term rents and profits to his lands; but appears to group all the income of his estate, real and personal, as the primary fund. No doubt the trustees had a right to take from the income of the personal property, if they chose, in the first instance, to keep down the ar- rears of annuities. Thus the fund itself is not within the 63d section. * * * § 238. “In other words, they are disconnected and in- dependent sums absolutely due, and in no way governed § 239. ]} THE FIRST AND SECOND CLASSES. 143 in amount by the rents and profits of Jand. The will bequeaths them out and out, and then afterwards cre- ates a general fund to secure their payment. It is of the nature of an annuity, that it is grantable by the holder at common law. It is real estate and not merely assignable in equity like choses in action. A deed of conveyance passes the legal right. Any or all of these annuitants might thus assign their interest; or they might release to the estate of the testator. What then that is inalienable remains of the trust? Nothing for the-present. The debts and legacies, including an- nuities, are all assignable, and may be bought in by the owners of the land. So far, then, there is no perpetuity in the matter.” § 239. (2.) Lang v. Ropke (1852)... Here there was a provision for annuities which was claimed to create a suspension of the power of alienation of the land But the court say: ‘‘ We observe further, that the argument as to the effect of the annuities in suspending alienation, was founded upon an erroneous construction of those provisions which bear upon the question, in the article of ‘uses and trusts.’ It is assumed that the direction to pay an annuity, which is charged upon lands, creates an express trust under the third sub-division of sec. 55, and is, therefore, subject to the prohibitory clauses in secs. 60 and 63. But we are clearly of opinion, that this sub-division extends only to the cases in which the whole rents and profits, whatever may be their amount, are to be paid over or otherwise applied, to the use of the beneficiary, and not to those in which the sum to be raised and paid over, whether immediately or annually, is ascertained and defined. An annuity, given by a will, whatever may be the direction as to the mode of 15 Sandf. 363. 144 SUSPENSION BY EXPRESS TRUSTS. {CH. Iv. its payments, is a pecuniary legacy, and hence, when it is charged upon lands, it is only under the second sub- division of sec. 55 that a trust for its payment can be sustained. § 240. ‘‘This question was very fully debated and considered in Hawley v. James, and it is manifest from the terms of the decree, that the construction we have stated is that which the court of errors finally adopted. The annuities, which in that case were sustained by the express terms of the will, were to be paid by the trustees out of the rents and profits of the lands devised, and had they not been regarded as legacies, assignable in their nature, and therefore imposing no restraint upon the alienation of the land, the court, instead of decree- ing them to be paid, must have declared them to be void. That such must have been the result of a differ- ent construction, was admitted by nearly all the judges and senators who delivered opinions. We therefore consider the law as settled, that the bequest of an an- nuity, to be paid by trustees, does not suspend the alien- ation of the Jands upon which it is charged, even during the lifetime of the annnitant, since, by releasing to the persons entitled in remainder or reversion, he may ex- tinguish the trust, or may unite with them and the trus- tees in conveying an absolute fee to a third person.” § 241. (3.) Griffen v. Ford (1857)... Here the same question was raised, and the court say: ‘‘An annuity, when created by a will, is a legacy, and when payable out of the rents and profits, a charge upon lands, and it is therefore subject to sub. 2 in section 55 that the trust, for its satisfaction, must be referred. * * * The interest of a person for whom a trust is created, "1 Bosw. 123 (142 et seg.) § 242.) THE FIRST AND SECOND CLASSES. 145 under the 2d sub. of section 55, is not made inalien- able by any provision of the statute. Hence, the wite [the annuitant] in this case had an unrestricted power of disposition. She might have extinguished the provision made for her by a release, or have ac- cepted a sum in gross in its satisfaction. It created, therefore, no suspense of alienation, even during the lives of the children and the continuance of the trust.” § 242. (4.) Radley v. Kuhn' (1884). Here there were legacies amounting to $1,400 to be paid from income dur- ing a trust term, and if not paid off at its close to con- stitute a charge on the land. The court say: ‘Only a trust to receive rents and profits of land and ap- ply them to the use of a person generally, or a trust ‘to accumulate rents and profits generally for the ben- efit of one or more minors, renders the estate in- alienable. Where the sole object of the trust is to pay a sum in gross, by collecting and accumulating rents, &c., to a specific amount, the cestui que trust may release or assign. If the sum required to make the payment is provided in any other way, the trustee is not guilty of any violation of the trust by unit- ing with the cestui que trust in a conveyance or release of the land. The purpose of the trust would have then been accomplished. There is no provision of the statute which prohibits such an alienation. The trust is a mere mode of securing the payment of the amount of the legacy, and nota provision for the main- tenance of an infant, or married woman, or an improvi- dent person, which is the class of trusts contemplated by sub-division 3 of section 55, and which were intended to be made inalienable (see Reviser’s Notes to section 55 and section 63)? * * * No doubt can be enter- 197 N. Y. 26. 2 But see Wetmore v. Truslow, 51 N. Y. 344. 10 146 SUSPENSION BY BXPRESS TRUSTS. ([CH. IV. tained of the validity of the provisions for the payment of $1,400 to the Radley children, whether it be regarded as a trust, a charge, or a power in trust, and it is not material to consider which.” § 243. These statements apply directly to single gross sum payments. It certainly would not render them inapplicable if the testator, instead of making one legacy of $700 to be paid at 21, had given to the same person two legacies of $350 each, payable respectively at 18 and 21; and so with several legacies of $100 each, one to be paid each year for seven years. So alsoif the direction had been to pay the given gross sum legacy of $700 piecemeal, year by year, until it was all paid.1 § 244. It would appear from the cases that the prop- er line of distinction between successive payments of gross sums under class two, and periodical payments of interest under class three, might be laid down as fol- lows : § 245. Where a trustee is directed to receive the rents and profits and apply or pay them over as such, the trust belongs to the third class, and this whether the rents are to be paid wholly to one person, or to several.’ But where he is directed to pay a specific sum of money, as such, and not as rents and profits, and whether in one lump sum or in successive specified lump sums, the trust belongs to the second class, and the gift is either a legacy, in the usual sense, or an annuity according to circumstances. * See further Hunter v. Hunter, 17 Barb. 25 (92); Gott v. Cook, 7 Pai. 521 (585); McGowan »v. McGowan, 2 Duer, 57; Johnson 0. Cornwall, 26 Hun, 499 (91 N. Y. 660); Killam ». Allen, 52 Barb. 605; Degraw ». Clason, 11 Pai. 136; Bradhurst 0. Bradhurst, 1 Pai. 331 (346); and compare Clute ». Bool, 8 Pai. 83; Stewart ». McMartin, 5 Barb. 438; Coster 0, Lorillard, 14 Wend. 265. * See Hobson 2. Hale, 95 N. Y. 588 (610). § 250.] TRUSTS TO RECEIVE AND APPLY RENTS. 147 § 246. In order to create a valid express trust to sell, the direction to sell must be the sole or at least the pri- mary purpose of the grant,' and the power of sale con- ferred must be absolute and imperative, without discre- tion save as to the manner and time of performing the duty imposed.’ § 247. The fact that a testator directs the ultimate division among devisees-in-remainder, of the balance of money to be raised by mortgage on the devised lands by trustees appointed to effect the mortgage, does not make the trust one to mortgage ‘“‘ for the benefit of leg- atees.” It is no benefit to the devisees to receive money raised by mortgage out of their own property. § 248. Among the trusts covered by the first class are general assignments of land for the benefit of cred- itors.‘ Class 3. Trusts to Receive and Apply Rents. § 249. The great part of all the cases concerning sus- pension of the power of alienation by express trusts, and relating to this class and to class 4, have been al- ready examined. We may, however, here take up a few points affecting the third class, which bear more or less remotely or indirectly on suspension. § 250. (1.) In order to constitute a valid trust of this class, the word ‘‘apply”’ is not essential. A trust to 1 Woerz v. Rademacher, 120 N. Y. 62; Cooke ». Platt, 98 N. Y. 35 (38, 9); see Henderson v. Henderson, 113 N. Y. 1 (11). 2 Cooke v. Platt, 98 N. Y. 35. A trust to sell and turn over the proceeds to the grantor is invalid. Heermans ». Burt, 78 N. Y. 259 (265). - 3 Weeks v. Cornwell, 104 N. Y. 325 (829, 338). 4 People ex rel. Short ». Bacon, 99 N. Y. 275 (279); compare L. 1875, ch. 545, amending § 67 of the statute of uses and trusts; and Kip ». Hirsh, 103 N. Y. 565. 148 SUSPENSION BY EXPRESS TRUSTS. [CH. Iv. receive rents and profits and ‘‘ pay them over ”’ is valid. So ‘“‘ manage and dispose of” may be a good substitute for ‘“‘apply.’*? So a direction that the beneficiary ‘shall receive,” &c., may be equivalent to a direction to the trustees to apply. Anda direction to ‘‘ use” for the support, &c., of the beneficiary is also good.‘ But a devise to trustees ‘to permit and suffer” a benefici- ary ‘‘to have, receive and take the rents, issues and profits,” creates no valid trust. For the trustee could not receive the rents, but must allow the beneficiary to do so. § 251. (2.) The trust may be for the application of only so much as is needed for education and support of the beneficiaries.® Class 4.—Trusts for Accumulation. § 252. The fourth subdivision of § 55 of the statute, in defining this class, refers to the provisions of 1 R. S. 722, § 1 et seq., for the purposes and limits of the trust term. In addition to such of the general provisions of that article as have already been referred to, there are the following, bearing directly upon the matter of ac- cumulations.' ‘Moore v. Hegeman, 72 N. Y. 376 (884); Vernon »v. Vernon, 53 N. Y. 351 (359); Van Cott v. Prentice, 104 N. Y. 45; Leggett o. Perkins, 2N Y. 297; Marx v. McGlynn, 88 N. Y. 357 (375); (compare Wetmore v. Truslow, 51 N. Y. 338). * Cruger v. Douglas, 4 Edw. Ch. 433 (446, 510). 3 See De Kay ». Irving, 5 Den. 646 (651). * Kiah v. Grenier, 56 N. Y. 220 (225). ® Verdin v. Slocum, 71 N. Y. 345. § See Haxtun v. Corse, 2 Barb. Ch. 506 (517). Concerning leases made by a trustec under this class, cf. Matter of Mc- Caffrey, 50 Hun, 371, and cases cited ; compare Van Vechten v. Van Vegh- ten, 8 Pai. 104 (120, 121). "1 R. S. 725, § 37 et seg.; Mich. G. 8. $3 5558-4; Minn. G. 8. $§ 3993-4; Wis. A. 8S. §§ 2061-2. A direction to add to the principal of the trust § 255. ] TRUSTS FOR ACCUMULATION. 149 \ § 253. An accumulation of rents and profits of real estate for the benefit of one or more persons, may be directed by any will or deed, sufficient to pass real es- tate, as follows: § 254. ‘1. If such accumulation be directed to com- mence on the creation of the estate out of which the rents and profits are to arise, it must be made for the benefit of one or more minors then in being, and termi- nate at the expiration of their minority. 2. If such ac- cumulation be directed to commence at any time sub- sequent to the creation of the estate out of which the rents and profits are to arise, it shall commence within the time in this article permitted for the vesting of future estates, and during the minority of the persons for. whose benefit it is directed, and shall terminate at the expiration of such minority” (§ 37); ‘‘If in either of the cases mentioned in the last section, the direction for such accumulation shall be for a longer term than during the minority of the persons intended to be bene- fited thereby, it shall be void as respects the time be- yond such minority. And all directions for the accum- ulation of the rents and profits of real estate, except such as are herein allowed, shall be void” (§ 38). § 255. The beginning, duration, and termination of trusts for accumulation, are effected by two sets of Statutory provisions. For, in the first place, they must conform in all respects to the general provisions here- tofore examined concerning suspension of the absolute power of alienation and postponement of vesting, i. e., estate, royalties on ore to be excavated from the lands held in trust, does not fall within the provisions of the statute concerning accumulation of rents. The royalties are equivalent to price received for portions of the corpus. Palms v. Palms, 68 Mich. 355. On this point see the will in Lee ». Tower, 124 N. Y. 370. 150 SUSPENSION BY EXPRESS TRUSTS. [CH. IV. their term must be measured strictly by two lives in being, save in the single exception provided for in § 16 of the statute. And in the second place, they must conform to the further and special provisions of §§ 37 and 88, just quoted. Keeping in mind these two sets of provisions, therefore,—one general and one special— we may conveniently examine the subject of accumula- tions under four heads. 1. When Accumulations must Begin. § 256. (a.) The first provision is that they may be di- rected to commence either on the creation of the es- tate or subsequently. In either event they must com- mence during the minority of the beneficiaries for whom the accumulation is directed. But according as the directions of any given instrument fall under one or the other of these two classes, the succeeding pro- visions applicable to it vary somewhat. So far as con- cerns our present examination concerning the time when the term must begin, the first of these two classes, namely, that consisting of trusts beginning at the cre- ation of the estate out of which the rents and profits to be accumulated are to arise, presents no peculiarity. In the second class, namely, that consisting of trusts to commence subsequent to the creation of the estate, the trust must commence within the time permitted for the vesting of future estates. This latter provision should be carefully noted. The time thus referred to is to be found set forth in §§ 14, 15, 17, 18, 19, 20, 21, 24, and (as an exception to the general rule) in § 16.22) This time (with the single exception found in § 16) is two * Quoted ante, § 62. 71K. 8. 723, § 14 et seg.; Mich. G. 8. § 5580 et seg.; Minn. G. 8. § 3975 et seg.; Wis. A. 8. § 2088 et seq. § 258.] WHEN ACCUMULATIONS MUST BEGIN. 151 lives. A future estate is permitted to vest at the end, or immediately upon the termination, of two lives. There- fore, as a suspension may begin within the time per- mitted for vesting, it may begin at the end, or immedi- ately upon the termination, of two lives. This is particu- larly noteworthy from the fact that in the case of a3- cumulations of personal property a nice distinction be- tween the statutory expressions has led to a different rule, which will be stated elsewhere.’ § 257. (b.) Under sub-division 2 of § 37, relating to ac- cumulations, the persons for whose benefit accumula- tion is directed need not be in being at testator’s death.? But they must be in being at the time for com- mencement of the accumulation.” And accumulation for an unborn child can never begin before its birth.‘ § 258. (c.) Postponement of the beginning of accum- ulation does not invalidate the provision, if it is to be- gin within the time permitted for the vesting of future estates, and also during the minority of the infant for whose benefit it is directed. Thus a direction to begin accumulation at the expiration of one month after tes- tator’s death, and during minority, is valid, if a valid term is marked out within which, if at all, it is to be- gin, as within one month in case A and B live so long.’ ' Post, § 480 et seg. See Manice v. Manice, 43 N. Y. 303. 2 Mason v. Mason’s Executors, 2 Sandf. Ch. 482 (affd. 2 Barb. 229); Manice 0. Manice, 43 N. Y. 308 (376). See Gott v. Cook, 7 Pai. 521. 3 Manicé v. Manice, 48 N. Y. 303 (876); (see Gott v. Cook, 7 Pai. 521); Kilpatrick ». Johnson, 15 N. Y. 322 (325). 4 Manice 0. Manice, 43 N. Y. 308 (876); Haxtun v. Corse, 2 Barb. Ch. 506 (518); Kilpatrick ». Johnson, 15 N. Y. 322. 5 Mason v. Mason’s Executors, 2 Sandf. Ch. 4382 (476-7). 152 SUSPENSION BY EXPRESS TRUSTS. [CH. IV. 2. For Whom Accumulations Must be Made. § 259. Every accumulation must be for the sole bene- fit of an infant... Thus a direction to accumulate rents and profits during a specified minority, add the accumu- lations to the principal, and hold the consolidated total in trust to receive and apply the rents and profits for the benefit of the same person, with a limitation over to others upon his death, is void. For although the minor is benefited to some extent, the accumulation is not solely for his benefit. Accumulation may, in the case of real property, be directed to commence at the end of two lives in being, for the benefit of a person then a minor, and extend through his minority, where the corpus is to vest in him in possession at his major- ity, or is to go over on an alternative disposition in case of his death during minority. This case is held to be covered by the provisions of § 16 of the statute con- cerning suspension. But in order that such an accum- ulation be considered valid, the ultimate remainder to the infant must be vested though defeasible. If vested in interest it will support the accumulation.? These propositions are inapplicable to accumulations of per- sonal property.‘ ‘Pray v. Hegeman, 92 N. Y. 508 (516, 517, 519); Barbour v. DeForest, 95 N. Y. 18; Harris v. Clark, 7 N. Y. 242; Manice z. Manice, 43 N. Y. 308; McCormack ». McCormack, 60 How. Pr. 196; Craig v. Craig, 8 Barb. Ch. 76 (92); (compare Titus v. Weeks, 37 Barb. 136; but see, as to Michigan, Toms v. Williams, 41 Mich. 552 [569]; Wilson v. Odell, 58 Mich. 588); Boyn- ton v. Hoyt, 1 Den. 58; Cook v. Lowry, 95 N. Y. 108 (107). See Bean ». Bowen, 47 How. Pr. 306; Hull v. Hull, 24 N. Y. 647 (compare Bryan 2. Knickerbacker, 1 Barb. Ch. 409, 425); Kilpatrick v. Johnson, 15 N. Y. 322; King v. Rundle, 15 Barb. 189 (145). See Gott v. Cook, 7 Pai. 521; Matter of Hoyt, 32 St. Rep. 787. 2 Pray v. Hegeman, 92 N. Y. 508 (513); Barbour v. DeForest, 95 N. Y. 18. 3 Manice v. Manice, 43 N. Y. 308. 4 Post, § 382. § 261.] HOW THE TERM MUST BE MEASURED. 153 § 260. If a valid term is marked out, within which the provisions for accumulation must be accomplished if at all, there may be a direction for successive accumu- lations, as, first, wholly for A; then, beginning from a later period, for A and B equally; then, as A reaches majority, leaving B and C minors, for B and C equally, etc." But not for an accumulation until all of several children reach majority.’ 3. How the Term Must be Measured. § 261. As already stated, the term for accumulation is governed by two statutory provisions. By the first and general one, it must be restricted within two lives, and, in the proper case, a further minority. By the second and special one, it must also begin dur- ing, and end with, the minority of the beneficiary in question. In order that it may be brought within the terms of section 16 of the statute, allowing suspension for a minority after two lives, the ultimate remainder in the corpus must be vested deteasibly in the infant while the accumulation is proceeding.’ Within the limits thus thrown around the term by these provisions, the minority of the beneficiary is the strictly essential measure of its duration.’ Thus, itis not allowable to direct its continuance for a fixed term not measured by minority,® or for a time not measured at all,® or for sev- eral lives.” ' Mason v. Mason’s Executors, 2 Sandf. Ch. 432 (475). See Ruppert’s Estate, Tucker, 480. ? Forsyth v. Rathbone, 34 Barb. 388. ® Manice v. Manice, 43 N. Y. 303 (874). 4 Cook v. Lowry, 95 N. Y. 103; In Matter of Dey Ermand, 24 Hun, 1; McCormack v. McCormack, 60 How. Pr. 196; King ». Rundle, 15 Barb. 139 (145); Williams 2. Williams, 8 N. Y. 525; Simpson v. English, 1 Hun, 559; Matter of Hoyt, 32 St. Rep. 787. 5 Rice v. Barrett, 102 N. Y. 161. 6 Yates v. Yates, 9 Barb. 324. 7 Hobson »v. Hale, 95 N. Y. 588; Harris v. Clark, 7 N. Y. 242. 154 SUSPENSION BY EXPRESS TRUSTS. [CH. IV. 4. When the Term Must End. § 262. When the minor reaches majority the trust for accumulation must cease.’ ‘If the direction is for a longer term than minority, it is void only for the excess.” § 263. The corpus out of which the accumulations have been raised may be given over to others in case of the death of the beneficiary either before or after coming of age. As to the accumulations themselves, it is undisputed that after the infant once reaches major- ity they belong to him indefeasibly.* But the disposi- tion of the accumulated fund in case of the death of the minor before reaching majority, has given rise to a conflict of decisions in the courts below and has never been directly passed on by the Court of Appeals. There are on this subject two theories : § 264. (a.) The first theory is that during the infant’s minority, the accumulations are only defeasibly vested in him, and on his death are divested, and do not go to his next of kin as such. § 265. (1.) Bolton v. Jacks’ (1868). Here there was such a disposition, and the court thus discuss its valid- ity. ‘As by the act of God, it has become impossible to comply with the provisions of the statute, by devot- ing the accumulations to the benefit of the minor, the accumulated fund must, if there are no directions in the will, and no clause in the will which would carry it > Goebel v. Wolf, 113 N. Y. 405 (415); Bryan ». Knickerbacker, 1 Barb. Ch. 409. *1 RK. S8. 725, §§ 37, 38; Hull o, Hull, 24 N. Y. 647 (650); Radley ». Kuhn, 97 N. Y. 26 (32); Gilman ». Reddington, 24 N. Y. 9 (19). ‘Gilman ». Healy, 1 Dem. 404; and cases cited; Pray v. Hegeman, 92 N. Y. 508; Barbour v. DeForest, 95 N. Y. 13. 46 Robt. 166 (280). § 267.] WHEN THE TERM MUST END. 155 in a different direction, revert back, and, in such event, the testator would die intestate as to such fund. But there is no reason why a testator should not have. the power to anticipate such an event, and treat this accum- ulated fund as a part of his original estate, and devise it to such persons as he chooses.” The court then call attention to the fact that in either view of the question their decision of the case in hand would be unaffected. § 266. (2.) Willets v. Titus! (1878). In this case tes- tator gave the ‘‘free use” of his estate, real and per- sonal, to his wife and daughter. On the majority of the daughter the property was to be divided between them. If the daughter should die during minority then the wife was to have it all. If the wife should die during the daughter’s minority then the daughter was to have it all on reaching majority, and until then it was to be ‘handed out” at the discretion of the executors. If the wife and daughter should both die during the daugh- ter’s minority, then the said real and personal property was to be divided between certain other persons named. In fact, first the wife and then the daughter died during the minority of the latter. It appeared that not all of the rents and income had been paid over to them, and that there was, therefore, a surplus on hand. The dis- position of this surplus was in question before the court. § 267. It will be noticed that the will did not direct any accumulation, and to this fact the court call atten- tion, but say that ‘‘assuming”’ that a direction to ac- camulate is to be implied from the direction to the ex- ecutors to ‘‘hand out” in their discretion, the direction is a valid one. Anditis held that “If the daughter had 114 Hun, 554, 155 SUSPENSION BY EXPRESS TRUSTS. (CH. Iv. reached the age of twenty-one years, then all would have come to her in possession ; but as she did not, the whole body of the estate, which included all that had been handed out to the daughter, passed under the third clause of the will.” § 268. (3.) Gilman v. Healy' (1882). Here the ques- tion was not before the court, but the principle is stated, and Bolton v. Jacks and Willets v. Titus are referred to with approval. § 269. (0.) The second theory is that since the ac- cumulation must be for the sole benefit of the minor, it becomes absolutely vested in him as it accrues, subject to the trust during his minority, is not divested by his death under age, and goes to his next of kin as such. This view is supported by § 270. Draper v. Palmer® (1889). Here there was a trust of land in two shares, the rents of one share to be applied to the use of J until he reached the age of thirty when he was to receive the property. If he should die under thirty, it was to go over, tree of the trust, to R. If there should be any rents not needed for J’s support, they were to be accumulated during his minority and at majority paid over to him. J died dur- ing minority. One question before the court was the proper disposition of an amount already accumulated for his benefit. The court say : § 271. *‘In the directions given for the accumula- tion, the grantor strictly confined himself to the power provided for that object by the statute, for the aceumu- lation was directed to be for the benefit of the son out 11 Dem. 404 (408). 227 N. Y. State Rep. 510. § 273.] WHEN THE TERM MUST END. 157 of whose share or interest it arose during his minority. * * * And having been declared in the deeds to be solely for the benefit of this deceased grandson as far as the accumulation of the rents and profits of his share were made, the rents and profits so accumulated belonged to him. They were unqualifiedly to be for his benefit. And he was in no manner afterwards di- rected to be deprived of that benefit, but it was to be ultimately secured by paying over the accumulations to him on his attainment of the age of twenty-one years. The object of the statute, as well as of this lan- guage of the deed, in confining the accumulations to the benefit of the minor, was to vest the right to the moneys, as they accumulated out of the share of the es- tate appropriated for him by the deeds, in him. * * * It was the payment, and not the right, which was in this manner postponed.” And it is held that the fund went to the infant’s next of kin. § 272. It is true that in the case last cited the tes- tator did not attempt to provide an alternative disposi- tion of the accumulations in case of death of the minor. under age. What the case exactly decides is that the accumulated fund does not necessarily follow the prin- cipal on the death of the minor, and the strong impli- cation of the opinion is that the testator could not have given the fund over to another. And this view certainly appears to be supported by far the weightier reasoning. § 273. A direction to accumulate may be implied as well as express.1. But such a direction will not be in- ferred from the mere fact that trustees are directed "Hawley v. James, 16 Wend. 61 (162). See Phelps’ Executor ». Pond, 23 N. Y. 69 (80); Gilman v. Healy, 1 Dem. 404 (407). As to personal prop- erty, Bean v. Bowen, 47 How. Pr. 306. : 158 SUSPENSION BY EXPRESS TRUSTS. [CH. IV. to apply to the use of a minor so much as might be necessary for education and support.’ Nor from a pro- vision for future payments of legacies which in the ag- gregate equal what the income, if accumulated during the period of suspension, would amount to. Even if there were an implied or even express direction for such an accumulation, it could be held void without in- terfering in any way with the legacies themselves.* § 274. A trust under the fourth class, to accumulate for the purpose of paying a lump sum legacy, does not suspend the power of alienation.? Nor does it consti- tute accumulation to retain and apply the interest to make good a depletion of the original capital occa- sioned by an anticipatory payment of a future in- terest.’ § 275. The disposition of the rents and profits in cases where an attempt has been made to create a trust for accumulation, and the direction has been held in- valid, has no connection with the subject of suspension of the power of alienation. But attention may here be ealled to the provision of the statute that ‘‘ When in consequence of a valid limitation of an expectant es- tate, there shall be a suspense of the power of aliena- tion or of the ownership, during the continuance of which the rents and profits shall be undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the persons presump- ’ Horton v. Cantwell, 108 N. Y. 255. ? Phelps’ Executor v. Pond, 23 N. Y. 69 (80); Manice ». Manice, 43 N. Y. 303 (384). 4 * Radley v. Kuhn, 97 N. Y. 26 (31). (And see Titus 7. Weeks, 37 Barb. 136.) “See Livingston ». Tucker, 107 N. Y. 549 (552); Craig v. Craig, 3 Barb. Ch. 76 (92). § 276.] WHEN THE TERM MUST END. 159 tively entitled to the next eventual estate.”! The ope- ration of this statute and its application are illustrated in the cases cited in the note.’ § 276. The rights of infants in any case to the appli- cation to their use of rents and profits directed to be accumulated, also belong to a subject not here in point. The statute on the subject is referred to in the note.’ 11 RB. S. 726, § 40; Mich. G. 8. § 5556 ; Minn. G. S. § 3992; Wis. A. S. § 2064. 3 Pray v. Hegeman, 92 N. Y. 508; Barbour v, DeForest, 95 N. Y. 13; Delafield v. Shipman, 103 N. Y. 463; Delafield ». Barlow, 107 N. Y. 535; Schettler v. Smith, 41 N. Y. 328; Cook v. Lowry, 95 N. Y. 108 (107); Craig v. Craig, 3 Barb. Ch. 76 (98); Williams v. Williams, 8 N. Y. 525; Kilpatrick ». Johnson, 15 N. Y. 822; Potter 1. McAlpine, 8 Dem. 108; Jn re Sand’s Will, 20 State Rep. 850. 31 RB. 8. 726, § 39; Mich. G. 8. § 5555 ; Minn. G. 8. § 3995; Wis. A. S. § 2063. CHAPTER V. SUSPENSION OCCASIONED BY POWERS. 1. Powers that do not Occasion Suspension. (a.) Beneficial Powers. (o.) Title Vested in Beneficiary Under Power. (c.) Election. (d.) General Power of Sale. (e.) Postponement of Possession. 2. Powers that do Occasion Suspension. (a.) Future Sale, Proceeds to a Trustee. (b.) Sale, Proceeds in Future to Unascertained Persons. 3. Powers that Obviate Suspension which, but for their Presence, would exist. § 277. We have now considered the suspension of the absolute power of alienation as occasioned by the existence of certain contingent estates, interests, rights and possibilities, and also as occasioned by certain ex- press trusts. We found that suspension arose in the first class from the fact that the persons representing the contingent estates or rights were unascertained, and in the second class from the fact that although all the estates might be vested, certain of them were vested in trust in such a way that alienation was pro- hibited. § 278. We now come to the consideration of suspen- sion occasioned by certain powers in trust. Here also the entire fee may be vested, but suspension arises from the fact that the power created results for the time be- ing in a prohibition of alienation either by the persons ' in whom the estate is vested, or by those to whom the § 279.] SUSPENSION OCCASIONED BY POWERS. 161 power is given, or by whom it is reserved.’ Such powers in trust with such results may be created.’ § 279. A power is an authority to do some act in relation to lands, or the creation of estates there- in, or by charges thereon, which the owner grant- ing or reserving such power might himself lawful- ly perform. Powers are either general or special, and either class is either beneficial or in trust. A power is general where it authorizes the alienation in fee, by means of a conveyance, will or charge of the lands embraced in the power, to any alienee whatever” It is special: 1, where the persons or class of persons to whom the disposition of lands under the power is to be made are designated; or 2, where the power authorizes the alienation, by means of a convey- ance, will or charge of a particular estate or interest less than a fee. This naturally follows as a corollary from the preceding proposition, for any por- tion of the fee which, if granted or devised, will consti- 1 Bennett v. Garlock, 79 N. Y. 302. 27d. at 320; Briggs v. Davis, 21 N. Y. 574. * Embury 2. Sheldon, 68 N. Y. 227 (284); Gilman v. Reddington, 24 N. Y. 9 (15, 16); Goebel v. Wolf, 113 N. Y. 405; see, also, Toms ». Wil- liams, 41 Mich. 552 (566). *Embury v. Sheldon, 68 N. Y. 227; Goebel 2. Wolf, 118 N. Y. 405 (413); Gilman v. Reddington, 24 N. Y. 9 (15, 16); Stevenson ov. Lesley, 70 N. Y. 512; see Genet v. Hunt, 113 N. Y. 158 (172-8), and ¢f. Townshend ». Frommer, 125 N. Y. 446 (466); Van Camp ». Fowler, 59 Hun, 311. °1-R. 8. 729,§ 62. And see Townshend v. Frommer, 125 N. Y. 446 (455); Woodgate v. Fleet, 44 N. Y. 1 (18 et seg.) § 372.] PRECEDENT ESTATE IN TRUSTEES. 209 tute a legal remainder, will, if not granted or devised, constitute a reversion. (3.) Instead of either limiting a remainder, in so many words, or making no disposition whatever of the expectant estate not granted or devised to the trustees, the creator of the trust may direct the trustees, at the termination of the trust estate, to convey the fee.! § 371. In case he adopts the course just mentioned in § 370 (1), the question whether the remainder is vested or contingent is to be considered and answered in ac- cordance with principles already discussed. In case he adopts the course mentioned in § 370 (2), there is no re- mainder at all. In case he adopts the course men- tioned in § 370 (3), then the question whether he has or has not created a remainder, and the distinction be- tween vested and contingent, are to be considered in the light of the following propositions : § 372. (1.) If the persons to whom the conveyance is to be made cannot be ascertained until the time comes for the conveyance, then the reversion remains in the heirs of the devisor, or in the grantor and his heirs, until that time comes, even though there are persons in being who, if the trust estate should now terminate, would thereby at once become the persons entitled to the estate. In such a case, the donee cannot execute the power, and the statute cannot execute the use, until the trust estate does terminate. In the meantime, the interests of the now-living persons in whom the estate may become vested when the trust terminates are con- tingent. Such was the state of facts in Townshend v. 1 Townshend v. Frommer, 125 N. Y. 446; U.S. Trust Co. v. Roche, 116 N. Y. 120; Goebel v. Wolf, 1138 N. Y. 405. 14 210 POSTPONEMENT OF VESTING. [CH. VI. Frommers And it seems that their interest is not a re- mainder at all.? 4 § 373. (2.) But if the persons to whom the convey- ance must be made by the donee of the power are spe-- cifically designated persons in existence, they take a vested remainder in spite of the existence of the power.’ § 374. This point appears to be settled by the case of Moore v. Appleby.’ This was a suit by a purchaser, un- der a cuntract of sale, to recuver an advance payment, on the ground of defective title. Objection to the title was based on the following facts: Testator devised his land—including the parcel in question—to G upon two trusts; first, to receive the rents and profits and apply them to the use of © for life, and, secondly, at the death of © to convey the land to C’s children, or, if there were no children, to C’s heirs. In an action to partition testator’s lands, during O’s life, his children were not brought in as parties. It was objected by the purchaser that their rights in the parcel covered by the contract of sale, under which plaintiff had made his ad- vance payment, had not been cut off by those proceed- ings. The question was thus presented whether the chil- dren of C living during his life had a vested remainder. The only distinction between the facts in this case and that of Townshend v. Frommer is that here the class to 1 Townshend v. Frommer, 125 N. Y. 446; U.S. Trust Co. v. Roche, 116 N. Y. 120. °U.8. Trust Co, v. Roche, 116 N. Y. 120 (130); ¢f. Townshend v. From- mer, 125 N. Y. 446. For a note on Townshend v. Frommer, see 26 Abb. N. C. 465, 3 Gilman v. Reddington, 24 N. Y. 9 (15, 16); Goebel v. Wolf, 113 N. Y. 408; Van Axte v. Fisher, 117 N. Y. 401; and so though the designation is of a particular class subject to open and let in new members. Stevenson v. Lesley, 70 N. Y. 512. 4 36 Hun, 368; affirmed, 108 N. Y. 287. § 375. ] PRECEDENT ESTATE IN TRUSTEES. 211 whom the trustee was directed to convey was designated, and members of it were already in existence answering to the description of ‘children of C,” while in Townshend v. Frommer there were during the trust term no per- sons in being answering to the description by which testa- tor chose to indicate those to whom the future convey- ance should be made, namely, ‘‘the children of said Clarissa living at her decease, and the surviving children of such of them as may then be dead.” The difference in the form of describing the future grantees is clearly such as would at common law, and under our statute, render the members of the class in one case ascer- tained, and in the other case yet to be ascertained, And out of this distinction arises the difference in the decisions of the court in the two cases. § 375. For in Moore v. Appleby the court, having shown that, apart from the presence of the attempted express trust, or valid power to convey, the children of C would take a vested remainder after the trust estate, add: ‘‘And that was not defeated in this instance by the direction given to the trustee to convey, assign and transfer the estate on the termination of the trust, for that was not a purpose for which a trust could be cre- ated under the provisions of the statute. This direc- tion, at most, created only a power over the estate in the trustee, and where such a power may be created the . land, notwithstanding its existence, will descend to the persons entitled to inherit it, subject to the execution of the power. * * * Under these provisions of the statute, as they have been construed, the persons entit- led to the property in remainder after the decease of the testator’s son Charles [C], which would terminate the trust estate, had a vested interest in the property, and should have been made parties to the action in parti- tion * * * .” And this result was approved, and 212 POSTPONEMENT OF VESTING. (CH. V1. the judgment unanimously affirmed, by the Court of Appeals.! § 376. It appears impossible to reconcile this case with Townshend v. Frommer, except on the principle al- ready stated, that where there is a power to convey at the end of the trust term, and there are in the mean- time no persons possessing the capacity, or answering the description, by which the creator of the estate has chosen to designate the future grantees, the future inter- est continues contingent until there are persons who pos- sess that capacity and answer that description. While where there is a power to convey, at the end of the trust term, to persons now answering to the descrip- tion, or to a designated class now represented by mem- bers answering to the description, there the existence of the power does not in any way interfere with the vested character of the future estate. § 377. The suggestion that the distinction between the two cases lies in the fact that in one the instrument was a will and in the other a deed,’ appears to be with- out substantial basis either on reason or authority. The true distinction seems to be clearly pointed out in the opinions of the courts in the following words: Moore v. Appleby? Townshend v. Frommer. “What the statute there- “Upon the question of fore designed was * * * the vesting quality of an that the property in re- estate, which is limited to 1 Moore v. Appleby, 108 N. Y. 287. ? Daily Law Journal, Vol. IV, No. 160, p. 1622 (March 80th, 1891); 26 Abbott’s N.C. at 465, note. Mr. Abbott, in his note, acknowledges the un- satisfactory nature of this distinction, which he apparently offers merely as a suggestion. 3 36 Hun at 370. 4125 N. Y. at 460. § 378.] mainder should, in the case of a devise of this nature, devolve upon the persons entitled to take it in re- mainder. And that was not defeated in this in- stance by the direction * * * toconvey * * * on the termination of the PRECEDENT ESTATE IN TRUSTEES. 213 take effect at a future day, upon the termination of a prior trust estate, in per- sons then to be ascertained, cases where the trust was to convey to definite per- sons named might be as unsatisfactory as authori- ties, as where the grantor trust.” er testator had given the remainder directly. It is the uncertainty here as to the precise persons in whom would exist the right to enforce the execution of the power in trust if, upon Mrs. Curtis’s death, any es- tate remained to be con- veyed, that introduces the element of contingency.” § 378. It must, however, be admitted that a certain doubt is thrown upon the conclusion here arrived at, by the fact that, if it is correct, the elaborate and valuable discussion, in the opinion in Townshend v. Frommer, of powers to convey, and of the bearing of their presence upon the nature of the future interest of the proposed grantees, is not strictly essential to the conclusion reached by the court, inasmuch as the result would have been the same if the presence of the power had been entirely disregarded. But although thus not Strictly essential to the result, yet the discussion in the opinion is still not inappropriate, and follows naturally from the form of the contention over the effect of the power in the case before the court. And this difficulty appears less serious than that involved in considering 214 POSTPONEMENT OF VESTING. [CH. VI. that Townshend v. Frommer directly overrules so recent and so important a case as Moore v. Appleby, without even a mention of it, and particularly in view of the fact that in Townshend v. Frommer the court, in the passage already quoted, appear to recognize without disapproval the existence of the class of cases repre- sented by Moore v. Appleby, and look on their decision in Townshend v. Frommer as in no way inconsistent with earlier authorities. § 379. It is apparent from this consideration of the cases, aS well as upon the general principles already ex- amined, that in all cases where a valid legal remainder is limited upon a precedent trust estate, it must vest— if ever-——by the end of the statutory period. CHAPTER VII. SUSPENSION OF THE ABSOLUTE OWNERSHIP OF PER- SONAL PROPERTY. I, Suspension OCCASIONED BY CONTINGENCIES. 1. The Distinction between Vested and Contingent Interests. (a.) Postponement of Possession. (o.) Postponement in New York. (c.) The Scope of the Rule. 2. Death before Actual Distribution. 8. Survivorship. II. SusPENsIoNn OccASIONED BY TRUSTS. 1. Creation, Duration and Termination of Trusts. 2. The Purposes of Trusts. 3. Effect of Trusts on Absolute Ownership. III. Suspension OccasionED BY PowERS IN TRUST. § 380. Thus far we have considered the principles governing suspension, and the postponement of vest- ing, only so far as they relate to real property. We are now to determine how far they are applicable} to personal property.’ § 381. The statutory provisions on this subjectyare as follows : 1. ‘‘The absolute ownership of personal property shall not be suspended by any limitation or condition whatever, for a longer period than during the contin- uance and until the termination of not more than two lives in being’ at the date of the instrument containing ? Concerning the law on the subject of this Chapter, in Michigan, Min- nesota and Wisconsin, see post, Appendix. 2 Banks ». Phelan, 4 Barb. 80; Strang v. Strang, 4 Redf. 376; Estate of Thomas, Tucker, 367; Thompson ». Thompson, 28 Barb. 482; Tayloe ». Gould, 10 Barb, 388; Richards v. Moore, 5 Redf. 278; Jansen ». Cairns, 3 216 ABSOLUTE OWNERSHIP OF PERSONALTY. [CH. VII. such limitation or condition, or if such instrument be a will, for not more than two lives in being at the death of the testator.’ 2. ‘‘In all other respects, limitations of future con- tingent interests in personal property shall be subject to the rules prescribed in the first chapter of this Act, in relation to future estates in land.’” § 382. The ‘“‘statutory period” allowed for suspen- sion of the absolute ownership of personal property is in all cases ‘‘two lives in being.” The provision for a further suspension, in certain cases, during a minority, which has heretofore been considered,’ applies solely to real property, and not to personal property.‘ § 383. Although, by its terms, the second statutory provision above quoted applies to limitations of future contingent interests, yet the courts do not always con- fine themselves to such limitations in applying to per- sonal property the statutes relating to real property. For in many cases they have held those statutes appli- cable by analogy. The rule on this subject is thus laid down by the court in Cook v. Lowry 5 “ Where there is Barb. Ch. 350 (356); Thompson ». Clendening, 1 Sandf. Ch. 887; Manice ». Manice, 43 N. Y. 303. 11R. 8. 773, §1. A general bequest of the income arising from per- sonal property, making no mention of the principal, is equivalent to a gen- eral gift of the property itself. Thus a direction for the division of all the income share and share alike among several legatees, constitutes an out-and- out gift of the principal. There is no suspension even for the respective lives. Hatch v. Bassett, 52. N. Y. 359. 21R.8 773,81; Ham v. Van Orden, 84 N. Y. 257 (270); Cook v. Low- ry, 95 N. Y. 103; Haxtun v. Corse, 2 Barb. Ch. 506; Craig v. Craig, 3 Id. 76; Graff 2. Bonnett, 31 N. Y. 9; Cutting v. Cutting, 86 N. Y. 522; Hut- ton ». Benkard, 92 N. Y. 295. 3 Ante, §§ 62, 342. ‘ Beardsley v. Hotchkiss, 96 N. Y. 201 (216); Manice v. Manice, 43 N. Y. 303 (881 e¢ seq.); Greenland 7, Waddell, 116 N, Y. 284 (245). 595 N. Y. 108 (111). § 384.] ABSOLUTE OWNERSHIP OF PERSONALTY. 217 no reason tor a distinction in the nature of the property there is certainly great propriety in assimilating the rules governing dispositions of real and personal estate.’ The particular classes of cases in which the statutes concerning real property have thus been held applicable to personal property by analogy are considered in their appropriate places. § 384. But at this point it becomes important to notice one striking and sweeping distinction between the rules governing the disposition of the two classes of property. In the case of real property, as we have al- ready seen, there are two rules. The first deals with all estates, rights, interests and possibilities; but it only requires the fee to become absolutely alienable within the time specified. It does not insist on vesting either in possession or in interest. The second rule requires vesting within the time specified ; but itis not of general application. It deals only with “remainders.” In regard to personal property, however, we find but one rule, and that is sweeping. For it is general in its application, and it requires vesting in beneficial owners within two lives.? In the words of the statute ‘‘ the absolute owner- ship of personal property shall not be suspended” be- yond two lives. This provision covers the whole ground.’ 1 See Genet ». Hunt, 118 N. Y. 158 (168); Matter of Crossman, 113 N. Y. at 510; Greenland v. Waddell, 116 N. Y. at 242-3; Graff ». Bonnett, 31 N. Y. 9 (18); this last case should be read in connection with Grout ». Van Schoonhoven, 1 Sandf. Ch. 336 (340 e¢ seg.), and Kane ». Gott, 24 Wend. at 661 e¢ seg., where the statute was held inapplicable; the latter are, therefore, now overruled on this point on the ground stated in the text. 2 See Hone »v. Van Schaick, 7 Pai. 221. ° It would be out of place here to enter on a discussion of the distinc- tions arising out of the nature of the two classes of property, or to attempt to consider the influence of these distinctions upon the shaping of the sep- arate statutory provisions. It appears to be here sufficient to call attention to the actual difference between the two rules. Although the statute does not in any case call for, and is not satisfied 218 ABSOLUTE OWNERSHIP OF PERSONALTY. [CH. VIL § 385. It results from this state of things, that the distinction between remainders and other future es- tates, which plays so important a part in the rules reg- ulating the disposition of real property, is here of no importance. Indeed, in a strict use of the word, it might be said that there are no proper remainders in personal property. It might be more accurate to say that such future interests in personalty as would, if they related to real property, be properly called remain- ders are called remainders merely by analogy, and in this sense the term is frequently employed." § 386. We have seen that in the case of real proper- ty, suspension of the absolute power of alienation might be occasioned either by certain future contingencies ; or by certain express trusts or powers in trust. Even after this enlarged application of the statute had thus been recognized in the case of real property, it was still thought that suspension of the absolute ownership of personal property could be effected only by the creation of a future contingency, and not by the creation of any personal property trust. But it is now decided that it may also be occasioned by certain trusts, even though all interests are absolutely vested?) These forms of by, mere alienability, as distinguished from vesting. yet personal property may in fact become alienable before it vests. Ham v. Van Orden, 84N. Y. 257 (270); this happens in the same cases as in real property, namely, where the event is uncertain, but all the persons having any possible interest are ascertained. Id. See ante, § 77 et seq. An investment of money by different persons in a common fund, to be held by a trust company for specified purposes, does not constitute a sus- pension, where the individual rights may be at any time transferred, and all interests are vested. Brown v. The Mutual Trust Co. 22 Weekly Dig. 395. 1 Bliven 2. Seymour, 88 N. Y. at 478; Matter of Accounting of Denton, 102 N. Y. 200; Smith o. Van Ostrand, 64 N. Y. 278; Norris o. Beyea, 13 N. Y. 278; Tyson v, Blake, 22N. Y. 558; Gray, Rule against Perpetuities, 71-2. ‘Haynes » Sherman, 117 N. Y. 488; Brewer v. Brewer, 11 Hun, 147; § 389.] SUSPENSION BY FUTURE CONTINGENCY. 219 suspension we will now take up in order. In each case the only question here to be determined is whether the absolute ownership is suspended. I. Suspension by Future Contingency. § 387. So long as the right to personal property re- mains contingent, the ownership cannot be said to be absolute. As soon, however, as it vests absolutely, sus- pension of the absolute ownership ceases. The crucial test of undue suspension is whether the limitations are such that the property must, within two lives in being, if ever, become absolutely vested in beneficial owners. 1. The distinction between vested and contingent interests. § 388. It here becomes necessary, therefore, to de- termine the principles of discrimination between the terms ‘‘vested”’ and ‘‘contingent” in their relation to personal property. As a general proposition it may be said that where a legacy is given of which the enjoyment is postponed, the leading inquiry upon which the question of vesting or not vesting turns, is, whether the gift itself is im- mediate, and the time of enjoyment only postponed, or is future or contingent, depending as a condition prece- dent upon the arrival of the beneficiary at a given age, or surviving some other person, or the like.* § 889. The general rules by which, in any given in- stance, this inquiry is to be answered, are as follows: 1. Where there is no gift but by a direction to ex- Everitt v. Everitt, 29 N. Y. 39 (71 e¢ seg.; 82 et seg.) This statement and the cases cited, are more fully considered, post, § 426 et seq. 1 Everitt v. Everitt, 29 N. Y. 39 (67). 220 ABSOLUTE OWNERSHIP OF PERSONALTY. [CH. VII. ecutors or trustees to divide or pay at a future time, the vesting in the legatee will not take place until that time arrives. In such a case the gift is future and not immediate, contingent and not vested.’ This is some- times expressed by saying that if futurity is annexed to the substance of the gift, vesting is suspended.’ 2. Where the gift is absolute and the time of pay- ment only postponed, here time, not being of the sub- . Stance of the gift, but relating to the payment, does not suspend the gift, but merely defers the payment.’ It is to be noticed that the term contingent, when applied to gifts of personal property, covers gifts which, if of real property, would be vested in interest subject to being defeated. So long as the future pos- session may be defeated on the happening of any con- tingency, a gift of personal property is said to be con- tingent.‘ § 390. Under this latter rule there are two classes of cases to be considered, uamely, in the first place those where the gift is vested as a remainder and is preceded by a temporary gift in the same property to another person. Here it is vested, so to speak, in interest, and the actual payment is postponed because in the mean- time the preceding legatee is entitled to the income or the enjoyment. It might be, perhaps, more accurate to say that in these cases the ownership of the prop- erty vests in the ultimate legatee, but that a present in- terest is carved out for the benefit of the one entitled 1 Shipman +. Rollins, 98 N. Y. 311 (827); Smith 7. Edwards, 88 N. Y. 92; Greenland v. Waddell, 116 N. Y. 284 (244); Delafield v. Shipman, 103 N. Y 468; Drake »o. Pell, 4 Edw. Ch. 251 (268 ; Leake v. Robinson, 2 Merivale, 363 (385 et seq.) 3 Everitt v, Everitt, 29 N. Y. 89 (75). * Goebel 0. Wolf, 113 N. Y. 405 (412); sted, 2. Burnham, 17 N. Y. 561 (575). 4 See note on Vesting, in 18 Abb. N. C. at 298. § 392.] SUSPENSION BY FUTURE CONTINGENCY. 221 to the present enjoyment. In these cases there is no difficulty in reconciling the vested character of the leg- acy with postponement of possession. § 391. There is, however, another class of cases, falling under this same rule, which present a number of difficult questions. This class is composed of the cases where the gift, instead of corresponding to a vested re- mainder, is given to take effect at once and outright in enjoyment, with an added provision deferring the actu- al payment of the principal itself until a later day. Here, the legacy being vested and no intermediate right to enjoyment being interposed, the legatee owns the property; but the mere right of possession remains in the executor. § 892. The difficulty presented by provisions of this character is, that as a general proposition absolute ownership implies the right of possession, and it has been urged that a postponement of possession must necessarily involve a suspension of the absolute own- ership of personal property. The same question comes up where, although the legacy in question is originally given as a remainder, it is also provided that when the prior gift is out of the way, and nothing remains to in- terfere with the enjoyment of the legatee in question, still the legacy itself shall be retained by the executor for a fixed period, or until the legatee reaches a given ' Everitt o. Everitt, 29 N. Y. 39 (75); Goebel o. Wolf, 118 N. Y. 405 (412); Gilman ». Reddington, 24 N. Y. 9 (18); Matter of Mahan, 98 N. Y. 372 (876). The following are further illustrations of valid gifts in re- mainder: Torrey v. Shaw, 8 Edw. Ch. 355 (356); Estate of Hedger, 6 N. Y. Supp. 769 (9 N. Y. Supp. 347); Savage 0. Burnham, 17 N. Y. 561 (575); Meyer v. Cahen, 111 N. Y. 270; Steinle v. Oechsler, 14 Week. Dig. 228; Wheeler v. Ruthven, 74 N. Y. 428; Matter of McClyment, 16 Abb. N. C. 262; Coit o. Rolston, 44 Hun, 548; Matter of Bogart, 28 Hun, 466; Lan- ders v. Bartle, 29 Hun, 170; Riley ». Diggs, 2 Dem. 184; Da Costa . Bass, 48 Hun, 31; Palmer v. Dunham, 52 Hun, 468 (aff'd 125 N. Y. 68). 222 ABSOLUTE OWNERSHIP OF PERSONALTY. [CH. VII. age. It will here be seen that in a case of this charac- ter, after the preceding interest has expired, and the executor is retaining the principal for the ultimate leg- atee, and paying him the interest, the same question exactly is presented as in the case first stated, where there is an immediate and outright gift in the first in- stance, subject to the same power in the executor to re- tain possession. Broadly stated, to cover both cases, the question is whether, when a legacy once becomes vested outright in a legatee as owner, subject to no preceding interest, a further provision withholding the possession from him does or does not suspend the ab- solute ownership of the property. It sometimes hap- pens that a testator first gives the property to trustees for two lives, and then to the ultimate legatee, with a provision further deferring payment of the principal. Here, after the trust is ended, two lives have already expired, and, therefore, if the provision for further withholding the principal from its owner does suspend the absolute ownership, it is illegal. § 393. As the subject has not been thought to be free from obscurity, it will assist in the examination of it if we first and very briefly review the general law concerning such restrictions, and their relation to vest- ing and alienability, before taking up the decisions in New York. In some cases the postponement of posses- sion is ‘‘during minority,” in some for a term of years, and in some until the attainment of an age beyond ma- jority. We will first examine the question without reference to the variations introduced by the fact of the infancy of the legatee. (a.) Postponement of Possession. § 394, ‘Where a testator gives a legatee an absolute vested interest in a defined fund, so that, according to § 394.] SUSPENSION BY FUTURE CONTINGENCY. 223 the ordinary rule, he would be entitled to receive it on attaining twenty-one, but by the terms of the will pay- ment is postponed to a subsequent period, e. g. till the legatee attains the age of twenty-five, the court will, nevertheless, order payment on his attaining twenty- one ; for at that age he has the power of charging, or selling or assigning it, and the court will not subject him to the disadvantage of raising money by these means when the thing is absolutely his own.”’+ ‘‘ Where money is bequeathed anda future time named for its payment, the legacy is vested or contingent, that is to say vested immediately or at the time named for pay- ment, according as the time is annexed to the gift or the payment. * * * If the time named is not an- nexed to the gift, but is the time named for payment of alegacy previously given in absolute terms, the direc- tion to pay at a future time is rejected and the gift re- mains absolute. It is rejected, not on grounds of re- moteness, and whether remoteness is involved or not, because of its repugnancy to the previous gift which confers the absolute interest. For it is a rule of law that where a person has an absolute vested interest in property and can give a discharge for it, he is entitled to an immediate transfer notwithstanding any words purporting to restrict the right to possession ; and even though the direction is to pay or transfer it at a future time.”’? ‘‘ When a person is entitled absolutely to prop- erty any provision postponing its transfer and payment to him is void. Thus suppose property is given to trustees in trust to pay the principal to A when he ‘ Williams on Exccutors, 6th Am. Ed. 1505; Curtis v. Lukin, 5 Beay. 147, (155-6); Rocke v. Rocke, 9 Beav. 66; Re Young’s Settlement, 18 Beav. 199; Josselyn ». Josselyn, 9 Sim. 63; Grant v. Grant, 3 ¥Y.&C.171; Re Jacobs’ Will, 29 Beav. 402; Gosling v. Gosling, Johns. (Eng.), 265. 3 Marsden, Rule against Perpetuities, 206; Saunders ». Vautier, 4 Beav. 115; (affirmed Cr. & Ph. 240); Hilton v. Hilton, L. R. 14 Eq. 468, 475. 224 ABSOLUTE OWNERSHIP OF PERSONALTY. [CH. VII. reaches thirty. When any other person than A is in- terested in the property, when, for instance, there is a gift over to Bif A dies under thirty, the trustee will retain the property for the benefit of B; but where no one but A is interested in the property, when should he die before thirty his heirs or representatives would be entitled to it, when in short the direction for postpone- ment has been made for A’s supposed benefit, such di- rection is void in pursuance of the general doctrine that it is against public policy to restrain a man in the use or disposition of property in which no one but himself has any interest.’”’? ‘‘ As such provisions are void, the question of remoteness cannot be raised with regard to them. If such a direction to pay or convey to a legatee at a period beyond the limit of the Rule against Perpe- tuities was, apart from the rule, valid, it would be bad as violating the Rule, and the property could never be paid over or conveyed ; but as itis invalid apart from the Rule the objection of remoteness does not apply to it.”’? § 395. Accordingly in the English reports, we find the two principles existing side by side, first that such postponement of possession as we are now discussing is void, and the legatee may enforce the transfer of the legacy to himself without waiting for the time named ; and secondly, that these provisions for postponement being void do not interfere with the absolute vesting. The very numerous English decisions * holding that such directions for mere postponement of possession have no bearing on the matter of vesting and consequently of perpetuities, are to be read as corollaries of the de- 1 Gray, Rule against Perpetuities, § 120. * Gray, Rule against Perpetuities, § 121. * Greet 0. Greet, 5 Beav. 123; and cases cited by Prof. Gray, Rule against Perpetuities, § 121, note 1. § 398.] SUSPENSION BY FUTURE CONTINGENCY. 225 cisions holding that the directions themselves are void and present no obstacle to the acquisition of actual possession by the legatee. Upon the variation intro- duced wherever the postponement of possession oc- curs during infancy, it may be said that our courts, in the cases we are about to examine, do not raise any such distinction ; and also that if any eftect were produced by the mere fact of the infancy of the legatee, it would not be of importance from the point of view of undue suspension, for our law is not concerned with incident- al suspension that may chance to arise from infancy or other natural personal disability... We will therefore disregard this distinction. (b.) Postponement in New York. § 396. In passing to the examination of the New York cases, we may here call attention to certain examples of postponed enjoyment which evidently do not fall ' within the scope of our present inquiry, namely : § 897. (1.) Legacies in remainder.—These so-called remainders we have already examined.’ If they are vested they cannot suspend the absolute ownership. § 398. (2.) Legacies charged on land devised.—Here the title to the land vests in the devisee, and if the legacy is vested at all it is vested in the legatee. He may re- lease it or assign it. Both the land and the legacy are absolutely alienable and vested. Even though the pay- ment be deferred till the end of a period not measured by lives, there is no violation of the rules regarding sus- : Beardsley v. Hotchkiss, 96 N. Y. 201, 214. And see ante, § 116. 2 Ante, § 390. 15 226 ABSOLUTE OWNERSHIP OF PERSONALTY. (CH. VII. pension and postponement of vesting.' Such provisions are therefore valid.’ § 399. (3.) Descent subject to charge or power.—The same reasoning applies where land descends to heirs charged with a legacy or subject to a power to sell and pay legacies which are vested but the payment of which is postponed. Here the land is vested and the legacy is vested,? and the power to sell at any time does not occasion a suspension.’ ‘§ 400. (4.) So also where the postponed legacy is charged on particular personal property bequeathed, the fund and the legacy being both vested." § 401. Leaving out of consideration the classes of cases just enumerated, we find remaining for consider- ation legacies not charged on any specified property and not depending on the exercise of a power to sell land and pay; but consisting of a portion of the exist- ing corpus of the estates and vested immediately and directly in the legatee with mere possession postponed. And the question is whether, under the New York de- cisions, this sort of postponement of possession sus- pends the absolute ownership.? The cases are so num- 1 McGowan v0. McGowan, 2 Duer, 57; Griffen v. Ford, 1 Bosw. 128 (144); Darling v. Rogers, 22 Wend. 483; Gifford v. Rising, 51 Hun, 1, The post- ponement of the payment of legacies charged on land is very commonly prescribed fur the convenience of the heirs or the devisee. See Traver v. Schell, 20 N. Y. 89(91); Loder v. Hatfield, 71 N. Y. 92 (100). 2 Loder v. Hatfield, 71 N. Y. 92; Radley vo. Kuhn, 97 N. Y. 26; Bush- nell v. Carpenter, 92 N. Y. 270; Jarman on Wills, 5th Ed. 885; Harris v. Fly, 7 Pai. 421. See Powers v. Powers, 28 Wis. 659: In the Matter of Pierce, 56 Wis. 560; see Matter of Tilford, 5 Dem. 524; Hunter v. Hunter, 17 Barb. 25 (90). 3 Marsh v. Wheeler, 2 Edw. Ch. 156. * Robert v. Corning, 89 N. Y. 225 (238). And see ante, § 287. * Wheeler v. Lester, 1 Bradf. 218; Same v. Same, Id. 293. 6 See Code C, P. 2717 et seg.; Estate of Jones, 15 Civ. Pr. R. 46. § 402] SUSPENSION BY FUTURE CONTINGENCY. 227 erous that it is impossible to review them all here. It will suffice to review such as illustrate fully the doctrine laid down by the courts. § 402. Converse v. Kellogg’ (1850). Here the testator gave the residue of his property to his children, and provided that no division was to be made until ten years after the death of his wife. The bequest was held to be ‘‘ direct, absolute and unconditional.” The court say further: ‘‘ By the will, therefore, a present inter- est iu the residuary estate vested in the beneficiaries at the death of the testator, and the clause disposing of that part of the estate is valid, unless it is vitiated by the restriction imposed upon the final distribution [p. 594}. * * * In relation to the personal estate * * * if the clause prohibiting the division of the estate is repugnant to the gift it is void, and must be rejected. * * * Tf the clause now under consideration suspends the absolute ownership beyond the time prescribed by this act [L R.S. 773, sec. 1, relating to suspension of ab- solute ownership] it is void. If absolute ownership means nothing more than a vesting of the property, with a right of alienation, without the right to posses- sion, then the restriction upon a division of the estate is not in conflict with the statute. But if the term used in the statute includes not only the property but the right to actual, immediate and unconditional possession, then the clause is repugnant to the statute and is void [p. 596]. * * * Can the title to personal property be said to be perfect, or the ownership * absolute,’ while one person is the general owner and another has the possession and the right of possession? * * * In this case, if the condition in restraint of division is valid there are two classes of owners, one general, the other 17 Barb. 58. 228 ABSOLUTE OWNERSHIP OF PERSONALTY. (CH. VII. special ; neither having the absolute ownership [p. 597]. * * * The conclusions to which I have arrived are * * * 92, That the devise, both of the real and personal estate, is valid as vesting a present interest in the benefi- ciaries. 3. That the condition annexed to the devise, that no division should be made until ten years after the death of the widow, was void as to the personal estate, as suspending the absolute ownership thereof for a period beyond the time prescribed by statute” (p. 599). § 403. This case, therefore, was authority for two propositions, first, that the restriction was void for re- pugnancy, in which respect it agrees with Saunders v. Vautier ;' and secondly, that in spite of its presence the vested legacy was good, in which respect it agrees with Gosling v. Gosling.” But the case is criticised in the opinion in Bliven v. Seymour,> where it is said that ‘‘ whatever was said in Converse v. Kellogg, which war- rants au inference that such deferring of payment (of: a vested legacy) amounts to a suspension of the absolute ownership, has no sanction in the decisions of this court.” And in the case just quoted from it is held that such a provision does not occasion suspension. § 404. The key to the difficulty appears to be at- forded in the following cases, which explain the true theory concerning postponement of possession after absolute vesting. § 405. Gilman v. Reddington’ (1861). In this case certain money was to be held, after the lapse of two lives, as a fund to furnish intezvest to a beneficiary. 4 Beav. 115 (Cr. & Ph. 240), cited ante, § 394, note. * Johns. (Eng.), 265; and the other cases cited ante, § 394, note. 5 88 N. Y. 469 (478). 4 24.N. Y. 9 (18); also Riker ». Society of the N. Y. Hospital, 66 How. Pr. 246 (251). §406.] SUSPENSION BY FOTURE CONTINGENCY. 229 The court say: ‘‘ The special trusts, however, contained in the residuary clause will have ended, and the trus- tees will continue to hold this part of the fund as execu- tors merely. The question is, whether these arrange- ments of the will render possible a suspense in the ownership of so much of the estate beyond the two lives which are the limit of the trust term. We think not. The question relates, it will be seen, to a princi- pal sum, the right or title to which must absolutely vest, at the expiration of the trust, in the children or their issue, or in the substituted legatees. The estate, as we have already observed, will be no longer of a de- terminable character, but will be absolute. The pos- session of these sums of money will be postponed until the widow's right to interest shall no longer intercept its actual payment.” § 406. Everitt v. Everitt’ (1864). In this case the tes- tator directed his executor to hold, use and manage the money bequeathed, and out ot the income to maintain and educate the three beneficiaries. This management was to continue until all the three children came of age. Denio, J., thought the provision might be sustained as a trust for each beneficiary, the respective shares to vest absolutely, each at the end of two lives, free from further management of the trustee. But he also states that even if there is not a trust, still the provisions for postponement of enjoyment until the end of three lives are not invalid. And Mullin,jJ., who thought there was no trust at all, says: ‘‘ Payment of the shares was not to be fully made until the youngest attained majority. This intention contravenes no statute or provision of law, and effect should be given to itif possible.” ‘‘ Noth- ing is clearer than that if the power to hold and man- ' 29 N. Y. 39. 230 ABSOLUTE OWNERSHIP OF PERSONALTY. [CH. VII. age said fund is, as to the portion belonging to the three children, a mere power in trust, there is nothing in the clause in contravention of the statute, and it is a power in trust, if the interest vested in the children on the death of their father. T do not find anything in the will inconsistent with such a view of its provis- ions. The right of the executors to retain in their hands the shares of said children and to invest them from time to time, for a period beyond two lives in being at the death of the testator, and then to pay over the same to the children, is not in violation of the stat- ute, because there are at all times persons in being by whoni a valid legal title to the property may be con- veyed.” § 407. The whole matter may. therefore, be summed up as follows: Where the successive gifts of the same property, or of the enjoyment thereof, are each vested, with possession of any one merely postponed until the termination of that preceding it; or where the gift is itself vested and is charged upon specified property ; in these cases the fact that the property and all interests in it are all vested satisfies the rule. And where prop- erty given vests immediately in the donee as a present gift, of a portion of the existing corpus, with a mere prohibition against actual payment until a subsequent date, this right of the executor to retain is regarded as a power which does not interfere with vesting in abso- lute ownership, and does not interfere with the owner’s. free right to sell, assign or release, and, therefore, is not hostile to the rule concerning suspension of abso- lute ownership. This postponement of possession may be for the convenience of the estate, as where it is de- sirable to allow the executor two or three years, or more, or an unmeasured period, in which to collect the § 409.] SUSPENSION BY FUTURE CONTINGENCY. 231 assets or turn them into cash to good advantage before the legatee shall have the right to enforce payment.’ § 408. Under this description falls, indeed, the gen- eral provision that in any event the executor may have one year in which to get in the assets, ascertain the debts of the estate, and otherwise prepare for distribu- tion. During the period thus allowed by law, the leg- atee cannot compel the executor to turn over to him the possession of his vested legacy. This one year thus allowed for postponement of possession is itself a period not measured by lives, but it is not regarded as a qualification of the rule concerning suspension, and does not suspend absolute vesting. The reason is that it is merely for convenience.” And the same reasoning evidently applies where the testator directs postpone- ment of possession for any reasonable period in excess _of one year. During this year or further period, the property is held by the executor as such. Subject to his special right to retain, as executor, the legacy is vested in the legatee. A trust of this character is not analogous to the express trusts which negative assign- ability. If the gift is of money, the executor, during the period of postponed possession, may sell the assets, and in any event the right of the legatee to sell, assign, release or bequeath is unimpaired. § 409. Sometimes the postponement. of possession is directed not for the convenience of the estate, but " Robert v. Corning, 89 N. Y. 225 (240, 241); (see Manice v. Manice, 43 N. Y. 808, 865 368); Van Rensselaer v. Van Rensselaer, 113 N. Y. 207 (213); (see Burke v. Valentine, 52 Barb. 412, 425). To this class may apparently be referred Oxley v. Lane, 35 N. Y. 340 (344-5). 2 Garthshore v. Chalie, 10 Ves. 1 (13); Robert v. Corning, 89 N. Y. top of p. 241; Scott » West, 63 Wis. 529 (555-6); for a valuable discussion of absclute vesting and postponement of enjoyment, and of repugnant condi- tions annexed to a gift, see Webster 0. Morris, 66 Wis. at 386 et seg 232 ABSOLUTE OWNERSH!P OF PERSONALTY. [CH. VIL merely because it appears best for the legatee that he should not have the gift in his hands immediately. Our cases do not suggest that in this instance any different rule would be applied? Itis here, if anywhere, that the English decisions holding such directions for postpone- ment void? would be applicable. § 410. The ground has been examined in some detail, in order to bring clearly to view the various questions presented, and the explanations offered. But it should be particularly noticed that it is unnecessary bere to determine exactly the principles governing the validity of restrictions on the possession of personal property by its absolute owner. For whatever these may be, one thing is certainly settled in New York, namely, that the presence in the instrument of restrictions on mere possession, does not occasion a suspension of the abso- lute ownership of personal property. Whether, in any given case, the restriction is void, and therefore harm- less; or is valid as a power in trust in the executors consistent with absolute vesting and with full right in the legatee to sell, assign, release or bequeath; in either event the net result, so far as the subject of sus- pension is concerned, is the same, for in either event the provision for postponement of possession does not involve suspension of the absolute ownership.* 'See Vernon v. Vernon, 53 N. Y. 351. Compare, however, Robert 2. Corning, 89 N. Y. 225, top of p. 241, where “ convenience of the estate” is given as the reason why postponement of possession is not inconsistent with immediate vesting. > Saunders v. Vautier, 4 Beav. 115, Hilton 0. Hilton, L. R. 14 Bq. 468 (475); Gosling v. Gosling. Johnson (Eng.), 265; Josselyn v. Josselyn, 9 Sim. 63; Grant v. Grant, 3 Y. & C. 171; Re Jacobs’ Will, 29 Beav. 402; see ante, § 394. * Vanderpoel v. Loew, 112 N. Y. 167 (186); Oxley v. Lane, 35 N. Y. 340 (844-5) ; Beekman v. Bonsor, 23 N. Y. 298 (317); Everitt 7. Everitt, 29 N. Y. 39, and cases already cited; see, also, on the same subject in its relation to real property, ante, § 288 et seq. § 412.] SUSPENSION BY FUTURE CONTINGENCY. 233 (c.) The Scope of the Rule. § 411. It has already been stated that where there is no gift but by a direction to executors or trustees to divide or pay at a future time, the vesting in the legatee will not take place until that time arrives. But this rule applies only where, beyond the direction for future distribution, there are no words and no pro- visions which import a present or vested gift, or indi- cate such an interest. It does not control where the language of the will, while not expressly saying ‘I give and bequeath,” does yet plainly import a present gift intended to vest immediately without reference to the clause of distribution.1 The doctrine of this rule is confined within the limits of its express terms.?. Thus we find numerous cases which are sometimes classed as exceptions to this rule,* to which, in fact, it does not by its express terms apply. Thus § 412. (1.) Where the gift is to be severed instanter from the general estate, for the benefit of the legatee ; and in the meantime the interest thereof is to be paid to him, that is indicative of the intent of the testator that the legatee shall, at all events, have the principal, and is to wait only for the payment until the day fixed ; and so the gift is held to be vested. And this may be equally so even where interest is given at a named rate, 'Manice ». Manice. 48 N. Y. at 369; Warner v. Durant, 76 N. Y. 133 (136); see Smith v. Edwards, 88 N. Y. 92 (105 et seg.); Goebel v. Wolf, 113 N. Y. 405 (412 et seq.) ? Smith o. Edwards, 88 N. Y. 92 (105 and cases cited); Leeming v. Sher- ratt, 2 Hare, 14, 3 See Warner ». Durant, 76 N. Y. at 136 4 Warner v. Durant, 76 N. Y. 133; Sweet v. Chase, 2 N. Y. 73 (80); Van- derpoel v, Loew, 112 N. Y. 167 (181); Robert v. Corning, 89 N. Y. 225 (240); Patterson v. Ellis, 11 Wend. 259; Matter of Baker, 6 Dem. 271; Stuart o. Spaulding, 30 Hun, 21; Weyman’s Exrs. v. Ringold, 1 Bradf. 40; Tucker ». Bishop, 16 N. Y. 402 (405). 234 ABSOLULIS OWNERSHIP OF PERSONALTY. (CH. VII. and interest at that rate is not yielded by the securi- ties in which the money given is invested, if only all that they do yield is given to the legatee.'. And even if the payment directed is not called “interest,” but the sum to be paid is precisely what the interest on the amount of the legacy would be, and such payment is to cease when the principal of it is paid, it is, in effect, so as to bring the principle into operation, substantially the same as if it was named in the will as strictly the interest of the legacy? The distinction is based, not upon the fact that the income which the particular legacy really yields is directed in the interim to be paid to the legatee, but on the fact that an amount equal to all which it is cap- able of yielding, or may be expected, in the use of legal methods, to yield, is thus given.’ § 413. It is said that the principle upon which the presumption of present vesting from a gift of the in- termediate interest is derived, is apparently that it would be hard to reconcile the gift of interest with a suspension of vesting, because interest is a premium or compensation for the forbearance of principal to which it supposes a title. It is a very plain inference from this assigned reason for the presumption, and such is decided to be the law, that the presumption can only apply where the whole interest is given during the delay of payment. If any part of it is diverted to pur- poses other than the benefit of the legatees, that is con- sistent with the principle that it does not belong to them, but is to remain in the estate as a source of in- come for the benefit of the estate.® ‘Warner ». Durant, 76 N. Y. 183 (188). * Fuller v. Winthrop, 3 Allen, 51; see Warner v. Durant, 76 N. Y. at 138-9. 3 See Warner v. Durant, 76 N. Y. 133. ‘1 Jarman on Wills, 764 ; see Smith 0. Edwards, 88 N. Y. at 106. 5 Smith v. Edwards, 88 N. Y. 92 (106); Leake ». Robinson, 2 Meri. 368; Hanson +. Graham, 6 Ves Jr. 289. §'415.] SUSPENSION BY FUTURE CONTINGENCY. 235: € 414. And it has been held that if the intermediate gift of interest is not co-extensive with the whole amount of the interest on the legacy provided for, or is made out of another fund, the legacy will not vest be- fore the day provided for the payment of the legacy itself But under the New York decisions this state- ment is too broad, and all that can be said is, that while the gift of the intermediate income to the legatees whose possession is postponed raises a presumption of present vesting, yet the gift of part of the intermediate income to others does not necessarily involve post- ponement of vesting. It simply weakens or destroys the force of that particular reason for presumption of present vesting, and leaves the whole question still open to be decided upon a view of all the provisions of the will? Thus in Matter of Mahan,* there was a trust, upon the termination of which the fund was to be di- vided among A, B and C. But in the meantime part of the income was to go to M, and part to N, and only the balance, if any, to A, B and C, and yet on the terms. of the whole will the gift is held to have vested at tes- tator’s death. But in the absence of indications of present vesting in other parts of the will, the fact that only a part of the intermediate income is given to the: ultimate legatees will receive attention as evidence of testator’s intention to postpone vesting.® § 415. Thus far we have considered the case where the intermediate income was given in whole or in part 1$ee Warner v. Durant, 76 N. Y.at 188; citing Watson v. Hayes, 5- Myl. & Cr. 125; Batsford » Kebbell, 3 Ves. Jr. 363. 2 Matter of Mahan, 98 N. Y. 372; See Phelps’ Ex’r. ». Pond, 23 N. Y.. 69 (81-2). 398 N. Y. 372. “Toms v. Williams, 41 Mich. 552 (565). > Delafield v. Shipman, 108 N. Y. 463 (467). 236 ABSOLUTE OWNERSHIP OF PERSONALTY. [CH. VII. either to the ultimate legatee or else to some other person. There is, however, another class of cases in which no specific disposition of interest, pending the actual division of the principal, is in terms provided for. The entire absence of such provision does not in- dicate an intention to postpone the taking effect of the gift of the shares in those among whom they are to be divided, but is quite consistent with the opposite in- tention,’ and it is said to be difficult if not impossible to reconcile it with any other. For if the gifts are to take effect in enjoyment immediately on the end of a preceding life interest, it would be unnecessary to make any mention of the rents and profits from that time torth, for while the appraisement and division were be- ing made the next takers would be vested with the title to the whole property as tenants in common, and would receive the income of their respective undivided shares, while the shares were being ascertained and separated. But if those gifts were not to take effect until after the completion of the division, and it were contemplated by the testator that any considerable time might elapse, or that changes of interest might occur during that process, some provision in regard to the rents and profits would be indispensable to con- form the disposition of these rents to the general scheme of the will? § 416. (2). Another restriction, within its own exact terms, of the rule that where the only gift lies in a diree- tion for future division or payment, the gift is future and not present, is suggested in Manice v. Manice,? where it ‘Clancy v. O'Gara, 4 Abb. N. C. 268 (278). > Manice v. Manice, 48 N. Y. 303 (853, 365); Dubois ». Rav, 35 N.Y, 162 (170); Lovett ». Gillender, 35 N. Y. 617 (621). 343 N. Y. 808 (869). § 418.] SUSPENSION BY FUTURE CONTINGENCY. 237 is said that where the terms of a bequest import a gift, and also a direction to pay at a subsequent time, the legacy vests. Anda fortiori this principle is also appli- cable to the case of a postponement not absolute, but permissve merely, where the parties bound to pay some- time are at liberty to do so from the moment of the testator’s death. § 417. The general rule is sometimes stated by saying that where the postponement arises out of the circum- stances of the estate, the legacy vests; but if it arises out of the circumstances of the legatee the vesting is postponed.’ § 418. Some further principles have also been estab- lished as guides in distinguishing between vested and contingent gifts. Thus where a will provides tor a fu- ture division amoung the persous who shall then answer a given description, it follows that the testator’s inten- tion was to make a future gift and postpone the vest- ing’ This is the rule where, in connection with the provisions just stated, the direction for future sale and division is absolute,‘ and where the future division is contingent the same rule is ‘‘much more” true.® Another circumstance to which weight will be given in discriminating between present and future vesting is, that the fund in question is not to come into exist- ence as such until the future date, and will then first be constituted out of separate fragments theretofore held for separate purposes ;° and also that conversion ! Traver v. Schell, 20 N. Y. 89. * See Sweet v. Chase, 2 N. Y. 73. 3 Hobson v. Hale, 95 N. Y. 588 (616 ; 612 e¢ seg.) 4 Teed v. Morton, 60 N. Y. 502 (506); Vincent v. Newhouse, 83 N. Y. 505 (511). ’ Delaney » McCormack, 88 N. Y. 174 (183). ¢ Shipman 2. Rollins, 98 N. Y. 311 (325). "238 ABSOLUTE OWNERSHIP OF PERSONALTY. [CH. VII. will not take place, and the money fund bequeathed arise as such, until the future date.’ § 419. The rules concerning the distinction between the terms vested and contingent have now been exam- ined. As soon as, in any given case, these rules have been applied, aud the property in question is classified as vested or contingent, it is at once ascertained (apart from the existence of an express trust) whether there is or is not any suspension of the absolute owner- ship. For if the property in question is contingent, the absolute ownership is necessarily suspended ; while if the property in question is vested in beneficial own- ers, it cannot be the cause of any suspension. § 420. In real property the suspension with which the statute is concerned is that of the ‘‘absolute power of alienation’? which exists when there are no persons in being who can convey an absolute fee in possession? But in personal property the statute calls not for the capacity of bestowing absolute ownership, but for the actual ownership itself. While the right to the prop- erty is contingent, the ownership cannot be said to be absolute. § 421. The question whether a gift is present and vested or future and contingent generally arises in cases where its validity depends on its being held to bea present gift. But sometimes the situation is reversed and the validity of the gift depends on its being held future and contingent. This occurs, for instance, where there is a gift to a corporation not yet organized. Here, ' Delaney v. McCormack, 88 N. Y. 174 (183); Vincent 2. Newhouse, 83 N. Y. 505 (511). ° Ante, § 64 et seq. ‘Id. “See, however, Richards v. Moore, 5 Redf. 278, and cases cited. § 423.] SUSPENSION BY FUTURE CONTINGENOY. 239 if the gift was intended to vest at once or never, it must fail, for there is as yet no donee to take it. But if it was intended to vest upon the formation of the corpo- ration within the legal period it is valid.1. In a case of this character, and in view of the desirability of uphold- ing the gift if possible, the court say, that when it ap- pears from a will that the donee is to come into being in future, or to become qualified to take upon the hap- pening of some future event, a present bequest will not be presumed unless ‘ there is not the least cirenmstance from which to collect the testator’s intention of any- thing else than an immediate devise to take effect in presenti.” § 422. If the donee is not yet in being the gift to him cannot certainly be vested until he is born. But it may be so given that his birth is the only contingency, and that the gift will vest then, although possession is still further postponed. But the mere use of words of con- dition, such as if or upon, in connection with a direction for payment at a future time, are not conclusive on the question of present or future vesting.’ § 423. And where testator leaves his land in trust, with a direction to sell at the end of the trust term and divide; the presence of substitutionary gifts to take effect ‘‘in case” the legatees first named to take on division ‘‘die after testator,” is a strong indication of future vesting at the time appointed for division. For of course they must die, and it would be absurd to pro- ' Lougheed v. Dykman’s Baptist Church, 58 Hun, 364; Plymouth Soci- ety of Milford » Hepburn, 57 Hun, 161; Burrill ». Boardman, 43 N. Y. 254 (258). 2 Burrill v. Boardman, 43 N. Y. 254 (258); where, however, every circum- stance concurred in giving the bequest an executory character. See Fearne on Cont. Rem, 536. 3 Robert v. Corning, 89 N. Y. 225 (240). 240 ABSOLUTE OWNERSHIP OF PERSONALTY. [CH. VII. vide for the event of death asif it might or might not happen. ‘To make testator’s meaning reasonable, these words must be understood to apply to the contingency of death during some specified period, and as the only period specified is the trust term, they must refer to that. What testator means, therefore, is ‘‘ In case said legatees die after me and before the end of the trust term, their legacies to go over,” &c. But this provision renders their rights contingent during the trust term, and postpones vesting until the time named for divis- ion.’ 2. Death Before Actual Distribution. § 424. Thus far we have been considering cases where the question was whether the vesting was present or postponed. There is, however, another question of in- terest which arises only where the vesting is admitted to be postponed until distribution at a future time, and where the inquiry is whether, when the time for distri- bution has arrived, the legacy vests then, or is still post- poned until actual distribution and possession. The answer is found in several cases. Thus where legacies are given from a fund or surplus to be collected or as- certained, and divided ‘‘at the death of A,” and there is a limitation over to take effect in case of the death of the legatee before the time of the division, here if the first legatee outlives A, his legacy vests even though, through delay in actual division, he dies before receiv- ing his share.’ § 425. And the general rule on the subject is, that where, by a will, shares or interests in real or personal 1 Drake v. Pell, 4 Edw. Ch. 251 (268-9). * Manice v. Manice, 43 N. Y. 808 (363, 368 et seg., 378); also Finley 2. Bent, 95 N. Y. 864; Patterson v. McCunn, 14 N. Y. St. Rep. 885 (110 N. Y. 670); and compare the corresponding rule in real property, post; § 512 _§ 426.] SUSPENSION BY FUTURE CONTINGENCY. 241 estate, to be ascertained by a division, are given, or where real estate is directed to be sold and the proceeds divided, the estate or interest of the devisee or legatee in the property to be divided or converted is a vested interest at the time appointed for the conversion or di- vision, and that limitations over, to take effect in case of the death of those first designated prior to the divis- ion or sale, must be held to refer to the time appointed for the division or sale, and not to the period of actual division or sale,' unless the language of the will clear- ly and unequivocally expresses an intention that the vesting shall be postponed until actual sale. But if such an intention is unequivocally expressed, effect must be given to it,’ though such intention will not be imputed to the testator if it can be avoided.’ 3. Survivorship. § 426. In the case of real property, the rule is that words of survivorship are to be referred to the death of the testator.4. But in: bequests of personal property, words of survivorship are to be referred to the time for distribution and enjoyment, unless there is shown to be a special intent to the contrary.® 'Manice v. Manice, 43 N. Y. 803 (868); Henderson v. Henderson, 113 N. Y. 1 (18). 1 Elwin v. Elwin, 8 Ves. 547. 2 Collin v. Collin, 1 Barb. Ch. 630; Clason 2. Clason, 18 Wend. 369. * Post, § 502. / * Teed v. Morton, 60 N. Y. 502 (506); Vincent ». Newhouse, 83 N. Y. 505 (511); Matter of Mahan, 98 N. Y. 372(376). For cases where they were held to refer to death of testator, see Kinnan v. Card, 4 Dem. 156; Matter of Tallmage, 20 Week. Dig. 69. And where not so to refer, Willets ». Wil- lets, 20 Abb. N. C. 471 (s. c. mem. 103 N. Y. 650). 16 242 ABSOLUTE OWNERSHIP OF PERSONALTY. [CH. VII. IL. Suspension Occasioned by Express Trusts. § 427. This subject may be most conveniently exam- ined under the following heads : 1. Creation, Duration and Termination of Trusts. § 428. In the case of personal property, trusts may be created not only by will or by writing but also by parol,’ or may be proved by showing a declaration of an existing trust? The acts or words relied on to create or declare a trust must, however, be unequivocal.’ The duration of suspension of the absolute owner- ship of personal property, which is fixed by the statute at two lives in being without exception,’ determines also the allowable duration of such trusts of personal property as effect suspension. As in the case of real property, trusts of personal property cease when they reach a limit imposed upon them by their creator ;*° and also on general principles, whenever their purpose has failed. Such as effect a suspension of absolute ownership must be limited to cease at the end of two lives in being. 2. The Purposes of Trusts. § 429. The statutes have not defined or restricted the purposes for which trusts of personal property may be 1 Barry ». Lambert, 98 N. Y.300; Gilman ». McArdle, 99 N. Y. 451; Marie v. Garrison, 138 Abb. N. C. 210, 214, 270, 307. * Phipard 2. Phipard, 55 Hun, 483; Kennedy ». Porter, 109 N. Y. 526 (547). * Matter of Crise, 26 N. Y. State Rep. 84; Young ». Young, 80 N. Y. 422. ‘ Manice 2. Manice, 43 N. Y. 808 (881). Thus a direction to set apart a fund to be perpetually kept by the trustees for cemetery purposes, is inval- id. Read v. Williams, 125 N. Y. 560 (567). 5 See ante, § 158. 6 See ante, § 159. So the creator may reserve a power of revocation. Rosenburg ». Rosenburg, 40 Hun, 91 (compare with Pierson v. Drexel, 11 Abb. N. C. 150); ante, § 158. § 430.] SUSPENSION BY EXPRESS TRUSTS. 243 created... As has been said, it would be almost im- practicable to do so. ‘‘As trade and commerce in- crease and the transactions in each become more and more complicated, trusts spring up and are created in a variety of ways.’” Thus, a trust of real and personal property, merely ‘‘for the benefit” of certain children during minority, is void as to the realty and good as to the personalty.* And trusts created by a mere deposit in a savings bank ‘in trust” for a person designated are very common.’ : § 430. Trusts for accumulation.—Although there is no restriction on the purposes for which these trusts may be created, the statute does specify one purpose in particular for which a trust is permitted. This isa trust for accumulation. On this subject the statute pro- vides that ‘‘an accumulation of the interest of money, the produce of stock or other income or profits aris- ing from personal property, may be directed by any instrument sufficient in law to pass such personal prop- erty as follows: 1. If the accumulation be directed to commence from the date of the instrument, or from the death of the person executing the same, such accumu- lation must be directed to be made for the benefit of 1 Gilman v. Reddington, 24 N. Y. 9 (12); Gilman v. McArdle, 99 N. Y. 451; Tilden v Green, 54 Hun, 231; Stettheimer v. Stettheimer, 24 N. Y. State Rep. 70 (8. c. sud nom. Stettheimer v. Tone, omitting from opinion paragraph on this point, 114 N. Y. 501); Barry ». Lambert, 98 N. Y. 300. ? Hagerty v. Hagerty, 9 Hun, 175; Gilman v. McArdle, 99 N. Y. 461 (456); Everitt v. Everitt, 29 N. Y. 39 (71). 3 Hagerty v, Hagerty, 9 Hun, 175; Gilman v. McArdle, 99 N. Y. 451 (456); Everitt v. Everitt, 29 N. Y. 39 (71). ‘Martin ». Funk, 75 N. Y. 134; Boone v. Citizens’ Savings Bank, 84 N. Y. 86; Macy v. Williams, 55 Hun, 489; Gerard » McCormack, 29 N. Y. St. Rep. 709; Willis ». Smyth, 91 N. Y. 297; Mabie 0. Bailey, 95 N. Y. 206; Weaver v. Emigrant, &c., Sav’gs Bk., 17 Abb. N. C. 82; Matter of George, 23 Abb. N. C. 43. But such trusts as these latter are of course not of the class that occasion suspension of absolute ownership. 244 ABSOLUTE OWNERSHIP OF PERSONALTY. [CH. VII. one or more infants then in being, or in being at such death, and to terminate at the expiration of their minority; 2. If the accumulation be directed to com- mence at any period subsequent to the date of the in- strument, or subsequent to the death of the person ex- ecuting such instrument, it must be directed to com- mence within the time allowed in the first section of this Title, for the suspension of the absolute ownership of personal property, and at some time during the minority of the persons for whose benefit it is intended, and must terminate at the expiration of their minority.” (1 B.S. 778, § 3.) ‘All directions for the accumulation of the interest, income or profit of personal property, other than such as are herein allowed, shall be void; but a direction for such an accumulation, in either of the cases specified in the last section, for a longer term than the minority of the persons intended to be benefited thereby, shall be void only as respects the time beyond such minority.” (1 R. 8. 773, § 4.) § 431. As has already been stated, an accumulation of the rents and profits of land may begin immediately upon the termination of two lives.1. But in the statute just quoted, relating to accumulation of the income of personal property, the phrase relating to time is ‘‘ with- in the time allowed for suspension of the absolute own- ership.” But the time allowed for suspension is two lives. Therefore, accumulations of the income of per- sonal property must begin before the two lives have ex- pired. The distinction between the two classes of property may, therefore, be stated thus: In the case of real estate, the accumulation must begin before or at the time prescribed for vesting, namely, by or at the end 1S8ee ante, § 256. § 433.] SUSPENSION BY EXPRESS TRUSTS. 245 of the two lives; while in the case of personal proper- ty, it must begin during the two lives. This distinc- tion is clearly set forth in Manice v. Manice.! § 432. The discussion of this point, in the case just cited, may be summed up as follows: In case of real property, when the two lives have ended, there is, in certain cases, opportunity for a further suspension dur- ing a minority. Here the accumulation may begin at the end of the two lives, and extend on through the minor- ity. But in the case of personal property, when the end of the two lives has been reached, there is no fur- ther opportunity for suspension, and consequently none for accumulation. It necessarily follows, therefore, that a trust for accumulation, in order to secure any leeway to effect its purpose, must begin within the term of suspension, and then run on until either the major- ity or earlier death of the infant, or the sooner termi- nation of the two lives is reached. § 433. Apart from the differences to which attention has been called, it is seen that here, as in the case of real property, the period of accumulation is regulated by two distinct provisions. By the first it must begin, continue and end within the limit of two lives in being. By the second it must also begin, continue and end within the minority of an infant for whose benefit the accumulation takes place. It may begin at the date of the instrument, or at the death of the testator, or sub- sequently, but in neither case may it be directed to be- gin before the birth of the minor. When he reaches majority it must cease. When the two designated lives end it must cease. If the minor dies before coming of age it must cease. It must be for the sole benefit of 148 N. Y. 308 (381 e7 seq.) 246 ABSOLUTE OWNERSHIP OF PERSONALTY. [CH. VII. the minor. As a general proposition it is settled that the statute concerning accumulation of the income of personal property is substantially the same as that con- cerning accumulation of the rents and profits of land.’ § 434. The statutory rule concerning the disposition of rents and profits, in cases where tbere is a suspen- sion of the power of alienation, and no valid direction for accumulation, is applicable to the case of personal property.® 3. Effect of Trusts on Absolute Ownership. § 435. It is settled that by analogy the statutory rule making every conveyance or otber act of the trus- tees of an express trust in lands, in contravention of the trust, absolutely void,* applies as well to trusts of per- sonal property ;° as does also the rule® 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.’ The rule thus applied in per- sonal property trusts is the same rule. In Graff v. 1 Bean v. Bowen, 47 How. Pr. 306. ? Pray » Hegeman, 92 N. Y. 508 (513); Kilpatrick v. Johnson, 15 N. Y. 822; Cook v. Lowry, 95 N. Y. 103; Barbour v. DeForest, 95 N. Y. 18 (15); Gilman v. Reddington, 24 N. Y. 9 (19); McGrath ». Van Stavoren, 8 Daly, 454; see the discussion of accumulation of rents of real property in chap- ter IV, ante. 3 Matter of Crossman, 118 N. Y. 508. 4 Ante, § 165; 1 R.S. 730, § 65. 5 Genet ». Hunt, 113 N. Y.158 (168); As to the title of the trustee, see Gilman v. Reddington, 24 N. Y. 9 (15); Horton v. Cantwell, 108 N. Y. 255 (267). ° Ante, § 165; 1 R. S. 730, § 68. " Estate of Jones, 10 N. Y. State Rep. 176 (180, and cases cited); Graff 2. Bonnett, 31 N. Y. 9 (18); Campbell v. Foster, 85 N. Y. 361 (371), and cases cited; Genet », Hunt, 113 N. Y. 158 (168); Lent ». Howard, 89 N. Y. 169 (181); Roosevelt v. Roosevelt, 6 Hun, 31; Matter of Crossman, 113 N. Y. 5038 (510); Gott ». Cook, 7 Pai. at 536. § 438.] SUSPENSION BY EXPRESS TRUSTS. 247 Bonnett’ the court say: ‘‘ Even if the provisions of the statute were not sufficiently comprehensive absolutely to require, as a peremptory injunction of statute law, their application in all their length and breadth, and in the same degree, to both classes of property, the argu- ment to be derived from the general similarity of the legislative enactments, in regard to both classes of property ; from the similar, if not equal mischiets to be remedied, and from the general policy of the law, would authorize a court of equity, in the exercise of its ac- knowledged powers, to apply the same rule of construc- tion to both.” § 436. Personal property trusts, therefore, of the character described, where neither the trustee nor the beneficiary can extinguish the trust, suspend the abso- lute ownership of the property.’? § 487. And where the subject of a trust is chiefly real but partly personal, and the real property is tied up originally for one life not applicable to the person- alty, but it is impossible to distinguish or separate the two classes, both of which are affected by one common scheme of appropriation except the realty during the one life, that one life will be counted applicable to all the property in measuring the term of its suspension? § 438. In a trust of personalty, the testator may em- power the trustees to pay over portions of the princi- pal to the life beneficiaries if deemed best ; this renders the trust conditional as to some part of the fund, but it is none the less valid.‘ 131 N. Y. 9 (18). 2 Genet ». Hunt, 113 N. Y. 158 (168); Savage v. Burnham, 17 N. Y. 561 (572). 3 Savage v. Burnham, 17 N. Y. 561 (570). 4 Roosevelt v. Roosevelt, 6 Hun, 31. 248 ABSOLUTE OWNERSHIP OF PERSONALTY. [CH. VII. III. Suspension Occasioned by Powers in Trust. § 439. The provision of the Revised Statutes that ‘* powers, as they now exist by law, are abolished; and from the time this Chapter shall be in force, the crea- tion, construction and execution of powers shall be governed by the provisions of this article” concerning powers,’ includes all powers both as to real and personal property, and ‘‘ by analogy, the rules for the creation, construction and execution of powers as to real estate should be applied, so far as they can be, to personal estate.” ? 11 R. 8. 732, § 73 et seg. * Hutton v. Benkard, 92 N. Y. 295; Cutting v. Cutting, 86 N. Y. 522. CHAPTER VIII. GIFTS TO CHARITABLE CORPORATIONS. 1. The Period after Vesting. 2. The Period before Vesting. 3. Variations, Modifications and Restrictions. (a.) Gifts on Condition. (0.) Gifts to the Officers. (¢.) Limitations on Amount. (d.) The Two Months’ Provision. § 440. We have thus far considered the rules against suspension, and against postponement of vesting, only in so far as they apply to dispositions of land or per- sonal property to natural persons. And we have re- served until now the consideration of dispositions to charitable corporations. Some of the general princi- ples already stated are here equally applicable, but the numerous peculiarities presented are of such a charac- ter as to render a separate treatment convenient and desirable. § 441. A discussion of the application of the rules in cases where the property is given to charitable cor- porations necessarily involves an examination of cer- tain characteristic features of such corporations, and of the view which is taken of their nature, capacities, powers, and duties under our law. § 442. As it has now been distinctly and finally de- cided that the former English law of charitable uses is not and never was in force in New York,’ and that we 1 Cottman v. Grace, 112 N. Y. 299 (806-7); Holmes o. Mead, 52 N. Y. 832; Holland v. Alcock, 108 N. Y. 312 (386); Bascom »v. Albertson, 34 250 GIFTS TO CHARITABLE CORPORATIONS. [CH. VIII. have adopted and established an entirely new system of provision for gifts to charity, we may properly con- fine ourselves closely to the law as applied and illus- trated in the decisions of our own courts.’ § 443. The first thing to be noticed is that by the Revised Statutes all uses and trusts except those there- in authorized are abolished.2. Among others not thus authorized are all trusts for charitable purposes” It has been frequently held that this statutory abolition of all trusts, except the four specified, does not apply to personal property trusts,‘ so that so far as this pro- vision goes it abolishes only charitable trusts in real property, and not those in personal property. In per- sonal property, trusts may be created for any purpose not in its nature improper. But, as we have seen, these trusts of personal property are by the statute restricted N. Y. 584. The doctrine of cy pres has no place in our law. Beekman v. Bonsor, 28 N. Y. 298 (810); Levy ». Levy, 33 N. Y. 97 (138); Bascom ». Albertson, 34 N. Y. 584; Will of Fuller, 75 Wis. 481. But see Webster 2. Morris, 66 Wis. at 391. 1 For areview of the English law, and of the changes that have taken place under our statutes, see Holland v. Alcock, 108 N. Y. 312 ; Bascom v. Albertson, 84 N. Y. 584 (600); Ayres 2. Trustees of the M. E. Church, 8 Sandf. 351 ; Yates v. Yates, 9 Barb. 324 (388, 339, 341); Fountain v. Rav- enel, 17 How. (U.8.), 869; Levy v. Levy, 33 N. Y. 97 (182); Matter of McGraw, 111 N. Y. 66. 21 R. 8.727, $465. : The statutory provision that “ no devise to a corporation shall be valid unless such corporation be expressly authorized by its charter or by statute to take by devise,” includes trusts as well as legal estates in land, and pro- hibits their receipt of the rents during the trust term. Downing v. Mar- shall, 23 N. Y. 866 (888 et seg.) But a power to sell the land and pay over the proceeds to the corporation does not fall within this statute. It is not taking by devise. Id. 391 et seq.; 888, first paragraph. 3 Holmes v. Mead, 52 N. Y. 332 (339); Bascom », Albertson, 34 N. Y. 584 (615); Levy v. Levy, 33 N. Y.97 (134); Downing v. Marshall, 23 N. Y. 866 ; Riker v. Leo, 115 N. Y.98 (102); Cottman ». Grace, 112 N. Y¥. 299 (306-7). * Holmes v. Mead, 52 N. Y. at 343. As to the law of Michigan, Minne- sota and Wisconsin on this point, see Appendix. § 445.] GIFTS TO CHARITABLE CORPORATIONS. 251 in their operation to a period measured by two lives in being. § 444. The scheme thus presented, with no provision for charitable real property trusts and with only exceed- ingly narrow and insufficient provision for charitable personal property trusts, would of course have been wholly inadequate. But it was completed and ren- dered adequate in these respects by the law of the State on the subject of dispositions of both kinds of property for charity. For the theory of our law on this subject is to provide for the creation of corporations devoted to charitable purposes, and to confer upon them, in their creation, specific authority to receive property to a designated amount, and hold it in perpet- uity for the accomplishment of those purposes.’ It is the policy of New York that funds irrevocably dedi- cated to purposes of charity are to be administered only through agencies and organizations sanctioned by leg- islative authority, and not by the intervention of pri- vate trustees, deriving perpetual succession through the will of a testator, and claiming immunity from the operation of general laws.’ § 445. It isobvious that gifts to such corporations may be present or future, and the subject here divides itself into two parts, one of which relates to the period 1 Holland »v. Alcock, 108 N. Y. 312 (336-7). ? Bascom v. Albertson, 34 N. Y.584 (620). As to the power of corporations to take by grant, devise and bequest, see 2 R. 8. 57, § 3; Sherwood v. Am. Bible Soc’y, 4 Abb. Ct. App. Dec. 227. A foreign corporation, endowed by its charter with authority to take money, goods and chattels by bequest, may take in the same way here. Id. If a foreign community has, by the unwritten law of its own country, confirmed by statute, the right to acquire and hold property, its capacity to take by bequest from a New York testator will be recognized here, whether the community is technically incorporated or not. In Matter of Huss, 126 N. Y. 687; s. c. 44 Alb. L. J. 108. 252 GIFTS TO CHARITABLE CORPORATIONS. [CH. VII. after the gifts, whether present or future, have vested in the corporation, and the other of which relates to the intervening period which precedes the vesting of a fu- ture gift. These two classes we will examine separ- ately. 1. The Period after Vesting. § 446.-Here there at once arises a question concern- ing the theory upon which these dispositions may be explained. The question, more fully stated, is this: Does a gift to a corporation, by tying the property up forever and devoting it perpetually to the purposes of charity, create in effect a suspension of the absolute power of alienation, or of the absolute ownership, which, but for the special dispensation granted to each corporation in its charter, would violate the rule con- cerning suspension; or does it, instead, fall entirely outside the range of that rule, and have no. connection with it, and derive its explanation and justification trom a distinct source? Bach of these views finds sup- port in the decisions. In support of the first view is the opinion in the following case : § 447. Holmes v. Mead.' Here the court say: “A devise to a corporation is prohibited, except in cases where by the law of its creation, or some other law of the State, the particular corporation is authorized to take by devise; and corporations can only take and hold property to the amounts and for the purposes pre- scribed by their charters or acts of incorporation ; and to this extent, each act of incorporation is a dispensa- tion in favor of the particular corporation, in respect of the prohibition of the statute against perpetuities. 152 N. Y. 382 (340); see, also, Adams v. Perry, 43 N. Y. 487 (500). -§ 448.) THE PERIOD AFTER VESTING. 253 But for this dispensation, which is in effect a repeal pro tanto of the statute against perpetuities, grants of prop- erty to charities or charitable corporations, for their general purposes, would be incompatible with the stat- ute against perpetuities, for the reason that every such grant implies that*it is to be held in perpetuity for the pur- poses of the grantee;' and a sale or transfer would only be justified by special circumstances.” Here the gift was to trustees, and the question before us was not in issue. § 448. Opposed to the theory suggested in the opin- ion just referred to, is the explanatiun given at length in Wetmore v. Parker? This case was decided in the same mouth with Holmes v. Mead, just referred to, and in- volved a gift to a corporation, ‘‘to be perpetually in- vested by the trustees,” only the income to be used for the purposes of the corporation. Here the validity of the gift was attacked as creating a perpetuity. The court say: ‘‘The question relates to the capacity of the corporation ; and the law of perpetuity has nothing to do with it.8 Statutes against mortmain‘ and perpetuity have, in a general sense, a common object, to restrain the locking up of property, which prevents its free transmission and use; but they are quite different in their origin, nature, and character. * * * The mortmain policy of this State is very simple, and is contained in each charter creating a charitable corpora- tion. The amount of property which it may take and hold in mortmain is restricted ; but its ownership is ab- solute, and only qualified by its artificial nature. * * * A contingent future interest might be limited to such a ' The italics are not in the original. 262.N. Y. 450. 3 The italics are not in the original. 4 Statutes of mortmain were never adopted or in force in Wisconsin. Dodge v. Williams, 46 Wis. 70 (92). 254 GIFTS TO CHARITABLE CORPORATIONS. (CH. VIII. corporation, and the law of perpetuity would apply until the contingency upon which the limitation de- pended happened ; and if that period was not depend- ent upon two lives in being it would be invalid; but if within that period, the interest would become vested, and the law against perpetuity would cease. The proper- ty would then be in mortmain, and beyond the reach of the law of perpetuity. The right to hold and use it would then depend upon the capacity of the corporation. The gift in this case was to the asylum. It was immediate, and became at once vested. The corporation could never have any other or greater interest than it then had, and no one else had any interest, contingent or otherwise, init. * * * It is said that the statute of perpetuity is violated because the direction to invest the principal takes away the jus disponendi, without which there can- not be absolute ownership.” * * * But ‘the in- come only of the permanent endowment of such an in- stitution can be used with safety to its very existence. Any other course would frustrate, and sooner or later, destroy its usefulness. * * * The corporation uses the property in accordance with the law of its creation, for its own purposes ; and the dictation of the manner of its use, within the law, by the donor, does not affect its ownership, or make it a trustee. * * * But assuming the binding force of the direction to permanently invest the principal, which must continue for all time, the owner- ship is not thereby suspended for a day, nor alienabil- ity prevented.”’! § 449. According to this view, therefore, the cor- poration takes the property outright, and thereupon acquires absolute ownership of it. If it is land, it may ‘Also Robert v. Corning, 89 N. Y. 225 (241); Erwin ». Hurd, 18 Abb. N. C. 91 (95); of. Matter of Bailey, 24 Abb. N.C. at 211. On the point of inalienability, see Matter of First Presb. Soc. of Buffalo, 106 N. Y. 251. § 450.] THE PERIOD AFTER VESTING. 255 sell it, either alone, or in concurrence with those who might otherwise acquire title to it in case of its aban- donment by the corporation ;* as to a gift of personal property, or the proceeds of the sale of its real proper- ty, while it is true that this can never be shaken free from the charitable purposes to which it is dedicated, yet this fact does not derogate from the absolute own- ership of it by the corporation. For though absolute ownership by a natural person necessarily involves the power of disposing of the principal, getting it out of the hands and the control of its owner and freeing it entirely from his dominion, this power is not involved in the idea of absolute ownership by a charitable cor- poration. Such a body is a peculiar and artificial one, created by law, and endowed with such a character that property may be said to be absolutely owned by it which is absolutely devoted to the only purposes for which it came into being or continues to exist. A char- itable corporation cannot possibly have the power to put its property to any use save those of its own proper purposes, and when property is given to it to hold for- ever for those purposes, it cannot be said that the ab- solute ownership of the property is suspended. The corporation enjoys over it the fullest and most com- plete control which in its corporate nature it is capable of possessing. § 450. Such is the doctrine laid down in Wetmore v. Parker. Apart from the theory upon which it is based there is, however, no obscurity about the general scheme itself. The land or personal property is given to the corporation’ to hold forever and devote to its charitable ' Wetmore v. Parker, 52 N. Y. at 460. ? And a State or nation cannot take by devise under this scheme. In Matter of Fox, 52 N. Y. 580. 256 GIFTS TO CHARITABLE CORPORATIONS. [CH. VIL. purposes.!. Such gifts would be invalid,’ but for the statutory sanction imparted with each new charter.’ Under this special exemption from the general laws, given to each new corporation, such gifts are valid up to the authorized limit,’ but not beyond.‘ Apart from this provision of the law for gifts to charity, we come at once within the scope of the rule against suspensions. For where the gift is to an unincorporated organization, or to individuals upon charitable trusts, we at once en- counter the charge of suspension.® If it is land that is thus given, the trust is void,’ because no provision has been made for express trusts of land for charity, except by gifts to corporations. And if itis personal property that is thus given, then the period of the trust must in any event be restricted by two lives.® ' Holland ». Alcock, 108 N. Y. 312 (336). ? Riker v. Leo, 115 N. Y. 98 (102). 3 Holmes v. Mead, 52 N. Y. 382 (340); Bascom v. Albertson, 34 .N. Y. 584 (615 et seg.); In the Matter of Fox, 52 N. Y. 5380. 4 Matter of McGraw, 111 N. Y. 66 (89 e¢ seq.) 5 Adams »v. Perry, 43 N. Y. 487 (498). Asa general proposition it may be said that the validity of trusts for objects which were denominated char- itable under the English law are in this State governed by the same rules by which the validity of trusts for other purposesare determined. Cottman v. Grace, 112 N. Y. 299 (306) ; Holland v. Alcock, 108 N. Y. 312 (836). § See O’Hara v. Dudley, 14 Abb. N. C. 71; King 2. Rundle, 15 Barb. 139. 1 Levy v. Levy, 33 N. Y. 97 (134); Holmes v. Mead, 52 N. Y. 382 (389); Downing v. Marshall, 23 N. Y. 366; Riker v. Leo, 115 N. Y. 93 (102); Cott- man v. Grace, 112 N. Y. 299 (806-7); Bascom ». Albertson, 34 N. Y. 584 (615); Follett o. Badeau, 26 Hun, 253. 8 Levy v. Levy, 38 N. Y. 97 (183-4); Adams ». Perry, 48 N. Y. 487 (497 et seq.); Matter of Starr, 2 Dem. 141; Will of Underhill, 6 Dem. 466; Holmes o. Mead, 52 N. Y. 382 (348). Upon the relations between taking and holding, see Matter of McGraw, 111 N. Y. 66 (89 et seg.) The Legislature may of course create exceptions to its general system. For instance, in L. 1890, ch. 77, is found an act providing that gifts by will or deed to any unincorporated Episcopal church, &c., in Albany, instead of lapsing shall pass to and vest in the corporation known as “ the trustees of the diocese of Albany,” as if they had been given to that corporation. And § 453.] THE PERIOD BEFORE VESTING. 257 § 451. But although natural persons cannot hold in perpetuity for the benefit of a charitable corporation,’ one charitable corporation may hold for the benefit of a second, if the purposes of the second are within the scope of those of the first.’ § 452. And if a legacy were left to one corporation to apply to the use of another, and the purposes of the two were so far dissimilar that the former could not take, there would merely be a failure of trustee, and it seems that the court could substitute the beneficiary corporation as trustee to hold and apply to its own uses.* In the case cited, the trustee corporation was held com- petent. 2. The Period Before Vesting. § 453. We now come to the questions relating to the period which precedes the vesting in charitable corpo- rations of future gifts. In all such cases, the usual principles which we have already discussed in preceding chapters apply. For here the gift to the corporation, whether of land or of personal property, is future and in R. L. ch 60, § 4 (1818), is found another exception under which property, both real and personal, may be held for the use of an unincorporated relig- ious society without any restriction as to time, except the indefinite future incorporation of the society. For the application of this provision, see Church of Redemption v. Grace Church, 68 N. Y. 570 (588 et seg.); Foote ». Bryant, 47 N. Y. 544; Reformed P. D. Church v. Brown, 4 Abb. Ct. App. Dec. 31. And wherever it is desired to have property held in trust for pur- poses not included in the four express trusts, the Legislature may authorize persons to hold in trust in a qualified corporate capacity, without necessa- rily constituting them a corporation in a full and unrestricted sense. Such was the case, for instance, with the Shaker trusts created by L. 1839, ch. 174; White ». Miller, 71 N. Y. 118. 1 Adams v. Perry, 43 N. Y. 487 (497 et seg.) ? Chamberlain ». Chamberlain, 43 N. Y. 424 (485 et seg.); Sheldon ». Chappell, 47 Hun, 59. -* Sheldon v. Chappell, 47 Hun, 59. 17 258 GIFTS TO CHARITABLE CORPORATIONS. [CH. VIII. must be judged by the same rules as other future es- tates." Thus, if the corporation to which the gift is given may not come into existence within the usual statutory period, the gift is void.2, So where testator provided that if within five years after his decease a corporation of a character described should be organized and should raise a fund of $300,000, then the executors should turn over to it testator’s trust estate ; otherwise one-half to a certain already incorporated body and one- half in other directions. There could be no immediate vesting in the proposed corporation ; it was yet to be chartered, and yet to raise the $300,000,—two conditions precedent—and for that purpose was allowed a term not measured by lives. The first provision was accord- ingly void.* § 454. But where the donee has not been incorpo- rated, but is required to become so within the statutory period in order to secure the gift, the gift is valid. ‘Thus, a bequest to trustees for the establishment and endowment of a hospital, accompanied by a direction to apply forand seeure from the legislature a charter proper for such purpose, and in case of its failure to grant one within two specified lives, then over, is valid. The corporation must be incorporated within two lives or not at all. Hence there is no undue suspension.‘ ' Not so in Wisconsin. Dodge v. Williams, 46 Wis. 70 (100); Gould ». The Taylor Orphan Asylum, 46 Wis. 106;. Webster v. Morris, 66 Wis. at 394 et seg., Fadness v. Braunborg, 73 Wis. 257; Wis. A. S. § 2039. * Rose v. Rose, 4 Abb. Ct. App. Dec. 108; Phelps’ Ex’r v. Pond, 23 N. Y. 69 (77); Cruikshank ». Home for the Friendless, 113 N. Y. 387; (see sec- ond part of opinion of Denio, J.,in Leonard ». Burr, 18 N. Y. at 107 e¢ seq.); Matter of Mayor, &c.,of N. Y.,55 Hun, 204 (119 N. Y. 660); (compare ‘Trustees of Meth. Church v. Clark, 41 Mich. 730, 741); Peo. 0. Simonson, 28 N. Y. State Rep. 97; Leonard ». Bell, 1 T. & C. 608 (58 N. Y. 676). 3 Rose v. Rose, 4 Abb. Ct. App. Dec. 108. ‘54 Burrill 2. Boardman, 43 N. Y. 254. A possibility of uncertainty in that the legislature might incorporate several all equally answering to the description, etc., will not affect the result. Id. 261. § 456. ] THE PERIOD BEFORE VESTING. 259 § 455. But the fact that a corporation directed by a testator to be specially chartered to receive a legacy and bequest, could be incorporated without delay under the general act, and as a matter of right, does not val- idate a provision which, as it stands, suspends the power of alienation for an indefinite period. An ex- plicit direction cannot be replaced by something differ- eut. § 456. And it is not necessary that the terms of the gift should in so many words provide that the gift to the corporation should only take effect in case it should come into existence within two lives. If the limita- tions are such that the gift must, from its nature, take effect, if ever, within the statutory period, it is suffi- cient. If, when the time comes for the corporation to take such a gift, it has become incorporated, then the gift takes effect. If, at that time, it is not yet incor- porated, the gift fails.? Thus, in the first case just cited, there was among other similar gifts, one to ‘‘ the first Reformed Low Dutch Church, that may be built after the year 1856, between the Fifth Avenue and the East River, and 79th and 95th Street.” As the gift was a future one, to take effect, if ever, upon the death of one person living at testator’s death, this was held a valid provision. ‘‘Upon the occurrence of that event the right to the legacy became vested if the church was then incorporated and had a legal existence. If it 1 Cruikshank v. Home for the Friendless, 118 N. Y. 337 (352). In this case, *‘ the restrictions in the general law made it inappropriate to the tes- tator’s design,” but the principle laid down is no doubt sound. As to the law on this point in Minnesota, see Trustees v. Froisbie, 37 Minn. 447; German Land Ass’n ». Scholler, 10 Minn. 331; Little v. Willford, 31 Minn. 173. 4 * Shipman v. Rollins, 98 N. Y. 811 (828 e¢ seg.); Philson v. Moore, 23 Hun, 153. 260 GIFTS TO CHARITABLE CORPORATIONS. [CH. VIII. had no such existence then the legacy lapsed, and vested in the next of kin of the testator.’ § 457. In order to call this principle into play, how- ever, it is of course essential that the vesting of the gift should be postponed after testator’s ‘death,’ to some future time within the statutory period. As al- ready stated, an immediate gift to an unincorporated charitable association is void.s And even where the vesting is postponed, incorporation of the donee, in or- der to be of any avail, must be eftected before the ulti- mate gift vests in others. Incorporation after that would be too late.“ The principles here stated apply equally to legacies and devises.* III. Variations, Modifications and Restrictions. (a.) Gifts on Condition. § 458. Where land is given to a corporation in trust to apply the same to its own appropriate uses, on con- dition of its paying from the rents a certain annuity for life, the condition does not impair the validity of the gift... And where a testator directs trustees to convey certain real estate to a corporation, subject to certain conditions and restrictions, and then directs that in case of its failure, at any time, to comply, the convey- ance should be void and the executors should devote 1 Gf. Holmes v. Mead, 52 N. Y. at 841-2. * Shipman v. Rollins, 98 N. Y. 311 (823-4), * Sherwood v. Am. Bible Society, 4 Abb. Ct. App. Dec. 227; 8.6.1 Keyes, 561; Marx v. McGlynn, 88 N. Y. 357 (376). * White ». Howard, 46 N. Y. 144 (163). Owens ». Missionary Society, 14.N. Y. 380. ' * Legacies: Sherwood »v. Am. Bib. Soc’y,4 Abb. Ct. App. Dec. 227; Devises : White 0. Howard, 46 N. Y. 144 (160). § Currin v, Fanning, 13 Hun, 458; see Matter of Howe, 1 Pai. Ch. 214. § 461. ]. LIMITATION ON AMOUNT. 261 the property to such charitable or educational purposes as to them might seem proper and just, the corporation takes free of any rights in the executors. The indefi- nite continuance of the executors’ power to resume and apply would constitute a perpetuity, and the beneficia- ries under the alternative provision would be too in- definite.’ (b.) Gifts to the Officers. § 459. Where the gift is to the officers, or trustees, or other representatives of a charitable corporation, and the intention of the testator to give to the corpo- ration appears, it will vest directly in the latter instead of in its representatives ;? but the intent must appear. § 460. There are a few important points connected with gifts to charitable corporations, which, although not relating directly to the tying up of property in the hands of corporations, may here be briefly referred to because of their bearing on the validity of such dispo- sitions. (c.) Limitation on Amount. § 461. It is provided by the laws of 1860, ch. 360, § 1, that “ no person having a husband, wife, child or pa- rent, shall, by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary society, association or corporation, in trust or otherwise, more than one half part of his or her estate, after the payment of his 1 Adams 2. Perry, 43 N. Y. 487. 9 Manice v. Manice, 43 N. Y. 308 (314, 387); Holmes ». Mead, 52 N. Y. 882 (343); Chamberlain ». Chamberlain, 43 N. Y. 424 (487); N. Y. Institu- tion for the Blind ». How’s Exrs., 10 N. Y. 84; Currin ». Fanning, 13 Hun, 458 (467); Van Deuzen v. Trustees, 4 Abb. Ct. App. Dec 468. * Cottman v. Grace, 112 N. Y. 299 (808). 262 GIFIS TO CHARITABLE CORPORATIONS. [CH. VIII. or her debts, and such devise or bequest shall be valid to the extent of one half, and no more.’’+ § 462. Under this provision the proportionate value of the amount given to the corporation, as compared to that of the entire estate, is determined by ascertaining the cash value of the gift, and also of the entire estate, at testator’s death. This rule applies in all cases, and whether the gift to charity be present or future. In the latter case, the future gift to charity may consist of the entire corpus of the estate, if only the probable postponement of possession, according to the life tables, be sufficient to reduce its cash value at testator’s death to one half the then cash value of the entire estate.” (d.) The Two Months Provision. § 463. And L. 1848, ch. 319, § 6, relating to benevo- lent, charitable, scientific and missionary societies, and societies for other purposes specified, provides that they shall be capable of taking, holding or receiving real and personal property in a specified amount, by will, provided that ‘‘no such devise or bequest shall be valid in any will which shall not have been made and executed at least two months before the death of the testator.”* This affects only the corporations chartered ‘ For decisions under this statute see Wetmore v. Parker, 52 N. Y. 450 (460); Chamberlain v, Chamberlain, 43 N. Y. 424 (440 et seq.) * Hollis » Drew Theo, Seminary, 95 N. Y. 166 (177) (compare with Harris 0. Am. Bible Soc’y, 2 Abb. Ct. App. Dec. 316, 823); and in ascer- taining the value of the estate at testator’s death, for this purpose, the widow’s dower should be deducted. Chamberlain ». Chamberlain, 43 N. YY. 424 (440). And also debts. Wetmore ». Parker, 52 N. Y. 450 (460). On the rule for determining proportionate values, ¢f. Matter of Teed, 59 Hun, 68. * See, also, L. 1870, Ch. 51. And for decisions on the statutes quoted, see Marx v. McGlynn, 88 N. Y. 357 (376); Stephenson »v. Short, 92 N. Y. § 463.] THE TWO MONTAS PROVISION. 263 under it or those whose charters refer to it and make its provisions applicable. 433 (445) ; Lefevre ». Lefevre, 59 N. Y. 484; Kerr v. Dougherty, 79 N. Y. 327; Beekman ». Peo., 27 Barb. 260; Cole v. Frost, 51 Hun, 578 ; Hollis 2. Drew Theo. Seminary, 95 N. Y. 166 (170) ; Currin ». Fanning, 13 Hun, 458 (472 et seq.) 1 Stephenson v. Short, 92 N.Y. 433; Kerr v. Dougherty, 79 N. Y. 327 (835, 339); Lefevre v. Lefevre, 59 N. Y. 484 (448), and other cases cited in last note. CHAPTER IX. EQUITABLE CONVERSION. I. Suspension of Power of Alienation, and of Ownership. II. The Bearing of Equitable Conversion on Suspension. III. General Principles. I. Suspension of Power of Alienation, and of Ownership. § 464. As already stated, the rule against suspen- sion of the absolute power of alienation differs, in cer- tain respects, from the rule against suspension of the absolute ownership of personal property. Some of the more important differences, for example, are as fol- lows : § 465. (1.) In the case of real property, the rule is satisfied if, within the prescribed period, the absolute fee must, whether wholly vested or not, become aliena- ble, although in respect to remainders the statute im- poses the additional requirement that they must be- come vested, if ever, within or by the end of the same period. In the case of personal property, the rule against suspension requires that within or by the end of two lives all interest must become vested in benefi- cial owners. § 466. (2.) In the case of real property, the require- ment that suspension must cease by the end of two lives in being, allows of one exception in the case where a contingent remainder in fee is limited on a pre- ceding remainder in fee defeasible on the happening of some contingency during the minority of the person to whom the defeasible fee is limited. In the case of § 470.] GENERAL PRINCIPLES. 265 personal property, the term allowed ‘for suspension must be measured strictly by two lives in being, with- out exception. § 467. (3.) In the case of real property, express trusts must be created for some one or more of only four specified purposes. In the case of personal prop- erty, they may be created for any purpose not in itself illegal. § 468. (4.) In the case of real property, the validity of the disposition is determined solely by the law of the place where the land lies. In the case of personal property, it is affected partly by the law of testator’s domicil and partly by that of the place where the lega- tee is domiciled or the directions of the will are to be carried out. II. The Bearing of Equitable Conversion on Saspension. § 469. In view of these differences, it is evident that the nature of the property concerning the disposition of which the question of undue suspension may be raised, is often of great importance, and may of itself determine whether a given scheme is valid or invalid. III. General Principles. § 470. In determining whether a given scheme of disposition does deal with real or with personal prop- erty, the mere fact of the actual form it wears at the creation of the estate is not decisive. It is here that the doctrine of equitable conversion becomes import- ant. 1 See post, Chap. XII. 266 EQUITABLE CONVERSION. (CH. Ix. § 471. Where there is an imperative direction to sell,. here equity, on the principle of regarding that as done which ought to be done, considers the conversion as: effected at the time when a sale ought to take place, whether the land is really sold then or not. This is called ‘‘ equitable conversion.” § 472. The leading principle here is that an impera- tive direction, contained in the instrument creating the estate, to sell the land in question, equitably converts it into personal property.‘ Conversion may be directed and may take place, either immediately upon the crea- tion of the estate, or at a subsequent time designated in the instrument.? Where the direction is for a future sale, the land remains in the meantime subject to the law of real estate.’ But from that time on, and whether an actual sale then takes place or not,* the property is regarded as personal property. Thereafter the law con- cerning real property has no application.‘ Thus any trusts created are then judged of as trusts of personal property. § 473. Neither the time of the creation of the estate, nor any other definite time, need be specified. The time when the required sale shall take place may be * Hatch », Bassett, 52 N. Y. 359; Cottman». Grace, 112 N. Y. 299 (805); Hood v. Hood, 85 N. Y. 561 (570); Asche ». Asche, 118 N. Y. 232; Robert ». Corning, 89 N. Y. 225 (239); Fisher v. Banta, 66 N.Y. 468; Moncrief 2. Ross, 50 N. Y. 481; Greenland v. Waddell, 116 N. Y. 284. * Savage v. Burnham, 17 N. Y. 561 (569); Vincent ». Newhouse, 83 N. Y. 505 (511). * Savage v. Burnham, 17 N. Y. 561 (569). “A direction to sell does not effect conversion as against an afterborn child unprovided for by the will. Smith v. Robertson, 89 N. Y. 555. * Kane v. Gott, 24 Wend. 641 (659); Everitt v. Everitt, 29 N. Y. 39 (71); Wells ». Wells, 88 N. Y. 323 (881) ; Greenland v. Waddell, 116 N. Y. 234; Savage v. Burnham, 17 N. Y. 561 (569); Ogsbury v. Ogsbury 115 N. Y. 290. § 475.] GENERAL PRINCIPLES. 267 left to the discretion of the trustees or others author- ized and directed to sell Such a provision may be consistent with immediate equitable conversion, ? and if the delay is merely for the convenience of the estate, as where the executor is directed to convert the land as soon as it can be done having in view the best inter- ests of the estate, the equitable conversion takes place at testator’s death.’ Thus this is true where the intent and direction of the testator to have the land sold is absolute, or ‘‘out and out” for all purposes, and to have the whole estate, real and personal, become united in one common money fund for the sole object of divis- ion and distribution, and the discretion of the executor in regard to the sale relates merely to the time when the actual sale shall be effected.’ § 474. In order to effect a conversion, it is not essen- tial that it should be ‘‘out and out” for all purposes. Where a testator directs the conversion of real estate for a particular, special purpose, such as distribution, the courts will regard it, so long as the purpose and ob- ject exist and continue, as of that species of property into which it was directed to be converted; and to the extent and for the purpose declared, it is to be treated as money, not land.® § 475. Although, as stated, a discretion may be re- posed in the person directed to sell, concerning the ' Robert v. Corning, 89 N. Y. 225 (289); Greenland ». Waddell, 116 N. Y. 234; Fisher v. Banta, 66 N. Y. 468. 2 Lent v. Howard, 89 N. Y. 169 (177); Greenland ». Waddell, 116 N. Y. 234, * Matter of McGraw, 111 N. Y. 66 (113) ; Graham », Livingston, 7 Hun, 11. ; ‘ Stagg o. Jackson, 1 N. Y. 206 (212). 5 Bogert v. Hertell, 4 Hill, 492; see Chamberlain v. Taylor, 105 N. Y. at 194-5; Fisher ». Banta, 66 N. Y. at 476-7; of. Wright 0. Trustees, Hoffm. at 22. 268 EQUITABLE CONVERSION. [CH. Ix. time when sale shall be made, a mere discretionary power of sale does not effect conversion... Yet even here, in so far as, and when a sale actually takes place under the power, conversion is effected.” In order to occasion equitable conversion, the diree- tion to sell need not be given in express terms. It may be raised by implication. In order, however, to raise a direction to convert by implication, two things are said to be strictly essential ; first, there must be an ex- press authority to sell; secondly, such conversion must be absolutely necessary to carry out testator’s scheme.‘ But in regard to the latter requirement, where there is an express power, and the directions for division are such that in the absence of conversiun there would be embarrassment, and perhaps serious reduction of the fund, and interference with the accomplishment uf tes- tator’s designs, and the testator’s intention to have the land sold appears from the general provisions of the will, the doctrine of equitable conversion applies. 1 Matter of McComb, 117 N. Y. 378; Fraser ». McNaughton, 58 Hun, 30; Miller ». Wright, 109 N. Y. 194; And the fact that a power is impera- tive in form is not conclusive. If it is seen to have been given for a par- ticular purpose which has failed, the power expires. Read v. Williams, 125 N. Y. 560. 2 White ». Howard, 46 N. Y. 144 (166-7) ; Van Vechten »v. Keator, 63 N. Y. 52; Harris v. Clark, 7 N. Y. 242 ; Miller ». Wright, 109 N. ¥.194 (199); As to the application of the doctrine of conversion to a surplus of the pro- ceeds of sale not needed for the purpose for which sale was directed, see Downing ». Marshall, 1 Abb. Ct. App. Dec. 524 (548); Van Vechten ». Keator, 63 N. Y. 52; Erwin ». Loper, 43 N. Y. 521 ; Parker v. Linden, 113 N.Y. 28. , 3 Asche v. Asche, 113 N. Y. 282 (285); Power ». Cassidy, 79 N. Y. 602 (613); Lent 0. Howard, 89 N. Y. 169 (177); Tillman ». Davis, 95 N. Y.17 (23); see Hobson ». Hale, 95 N. Y. 588 (598, 606); of. Gourley v. Campbell, 66 N. Y. 169 (172); Fraser v. Trustees, 124 N. Y. 479. “ Hobson ». Hale, 95 N. Y. 588 (606-7); Lent ». Howard, 89 N. Y. 169; Power v. Cassidy, 79 N. Y. 602; Miller 0. Wright, 109 N. Y. 194 (199); Chamberlain v. Taylor, 105 N. Y. 185 (194); Clift v. Moses, 116 N. Y. 144 (157 et seq.); Scholle v, Scholle, 118 N. Y. 261 (271). * Power v. Cassidy, 79 N. Y. 602 (614); and see Tillman ». Davis, 95 N. Y. 17 (28). § 478. ] GENERAL PRINCIPLES. 269 § 476. Although, as already stated, equitable conver- sion in all cases results only when the direction to sell, whether express or implied, is imperative, yet where the testator merely ‘‘ authorizes” his executors to sell his real estate, but the provisions of the will are such that there is ‘‘no doubt” that he intended it all to be turned into money, equitable conversion takes place.' § 477. Where a conversion of real property into per- sonal is directed for particular purposes, and those pur- poses fail, the land retains its original character, and, if undisposed of, descends to the heirs,*—that is, to those who were such at the time of testator’s death® The general tendency of the decisions is against an ‘ out and out” conversion for all purposes.‘ § 478 In certain circumstances, already considered in another place, the exercise of ‘‘election”’ to take the land instead of its proceeds may effect a ‘‘reconver- sion” of the property into its original form.® 1 Phelps’ Ex’r v. Pond, 28 N. Y. 69; Delafield v. Barlow, 107 N. Y. 535 (540). 2 Gourley v. Campbell, 66 N. Y. 169 (174); Chamberlain v. Taylor, 105 N. Y. 185 (194); Parker v. Linden, 118 N. Y. 28; ef. Fisher v. Banta, 66 N. Y. 468 (477). ; ° See Greenland v. Waddell, 116 N. Y. 234 (245). 4 See Hobson v. Hale, 95 N. Y. 588 (606). 5 See ante, § 286; Hetzel v. Barber, 69 N. Y. 1 (12); Greenland ». Wad- dell, 116 N. Y. 284 (246); Armstrong v. McKelvey, 104 N. Y. 179 (183-4); Prentice v. Janssen, 79 N. Y. 478 (484 et seg.); Parker v. Linden, 113 N. Y. 28 (88). CHAPTER X. SEPARABILITY. I, GENERAL PRINCIPLES. II. ConTINGENCIES WITH A DOUBLE ASPECT. 1. Simple Alternative Contingencies. 2. Involved Alternative Contingencies. 8. Contingencies with an Alternative Application. § 479. We are now to consider the situation which exists where, among provisions valid by themselves, there are also provisions illegal for attempting undue suspension or postponement; and are to determine the principles of distinction between cases on the one hand where these illegal provisions may be severed and the rest of the general scheme preserved, and cases on the other hand where the illegal provisions vitiate and de- stroy the entire scheme of disposition of which they form a part. The subject naturally distributes itself under several heads, which we will now take up in order. I. General Principles. § 480. Where there are several provisions or dispo- sitions, relating either to different portions of the same property, or to successive interests in a given portion, and some of them are void for undue suspension or postponement, and the rest are in themselves valid, the question is how far the invalidity of the former taints and invalidates the latter. In such a case it does not necessarily follow that the whole scheme is thereby vitiated. Fora distinction is to be observed between $ 480.] GENERAL PRINCIPLES. 271 schemes which constitute a single entity and must stand or fall on their merits as one whole, and those which may be separated into independent disposi- tions. If a provision of the former character in- volves an unlawful suspension or postponement, the whole scheme falls to the ground, while if the taint of illegality attaches only to an independent and separable part of an entire scheme, this tainted part may be cut off, and the rest allowed to stand.? On the other hand, even where among several provisions some are valid, and others are invalid for creating an illegal suspension, the whole scheme may be vit- iated even although the illegal provisions are distinct and easily separable from the others. This would be the case where the result of discarding the invalid and sustaining the valid would be to seriously interfere with the obvious intention of the testator as to the pro- portionate enjoyment of the beneficiaries, a proportion which could be sustained by considering the entire scheme void as to all.° ! Amory v. Lord, 9 N. Y. 403 (4183-18-19); Levy v. Levy, 38 N. Y. 97 (which compare with Adams 2. Perry, 43 N. Y. 487); Haynes v. Sherman, 117 N. Y. 483; Ward ». Ward, 105 N. Y. 68 (75); Knox v. Jones, 47 N. Y. 389 (398 et seg.); Harris v. Clark, 7 N. Y. 242; Dana v. Murray, 122 N. Y. 604; see Woodruff z. Cook, 61 N. Y. 688 (641 e¢ seg.); Jennings v. Jennings, 7 N. Y. 547; Clemens v. Clemens, 60 Barb. 366; cf. Tilden v. Greene, 54 Hun, at 251 et seg., Colton v, Fox, 67 N. Y. 348 (852); Rice v. Barrett, 102 N. Y. 161. 2 Matter of Hoyt, 32 N. Y.State Rep. 787; Palms v. Palms, 68 Mich. 355; Kennedy v. Hoy, 105 N. Y. 184; Murray a. Charlick, 23 Weekly Dig. 563; Kil- patrick v. Johnson, 15 N. Y. 322. In Smith v. Edwards, 88 N. Y. 92 (104), there is a dictum to the effect that in trusts of personal estate, or of money, which is indefinitely divisible in its nature, a suspension of the absolute ownership as to one part of the fund, for a longer period than is allowed by law, will not make void the disposition which has been made of another part thereof. But see Holmes v. Mead, 52 N. Y. 382 (338). 3 Benedict v. Webb, 98 N. Y. 460 (466); Holmes v. Mead, 52 N. Y. 332 {344 et seg.); Clemens ». Clemens, 60 Barb. 366; Chipman ». Montgomery, 63 N. Y. 221 (284). 272 SEPARABILITY. [CH. X. § 481. But where the testator’s main scheme is valid, it will not be destroyed by the presence of provisions which effect an illegal suspension, if these provisions are separable and not essential to the proper harmony and proportion of the whole; for then they may be cut off: But where the main elements of a general scheme fail, through invalidity, the subsidiary and dependent elements, even though per se valid, fail too? ~ § 482. The fact that valid and void limitations are both embraced within the terms of a single trust, does not constitute any insuperable obstacle in the way of cutting off the latter and sustaining the former.’ And in all cases where an invalid provision is separable, and is not an essential feature of an entire scheme, it may be cut off,‘ without destroying the general design. 1 Manice »v. Manice, 43 N. Y. 308 (888); Harrison v. Harrison, 36 N. Y. 548; Tiers 0. Tiers, 98 N. Y. 568 (573); Savage v. Burnham, 17 N. Y. 561 (572); Kennedy v. Hoy, 105 N. Y. 184 (187); Van Schuyver v. Mulford, 59 N. Y. 426; Henderson v. Henderson, 113 N. Y. 1 (15); Adams +. Perry, 43 N. Y. 487 (500 et seg.); (which compare with Levy o. Levy, 33 N. Y. 97); Woodgate ». Fleet, 64 N. Y. 566 (573); Barker v. Crosby, 32 Barb. 184. * Holmes v. Mead, 52 N. Y. 382 (844 et seq.); Harris ». Clark, 7N. Y. 242, * Harrison ». Harrison, 36 N. Y. 548; Manice v. Manice, 43 N. Y. 303 (363); Savage v. Burnham, 17 N. Y. 561 (576); Post ». Hover, 38 N. Y. 593; Darling v. Rogers (Opinion of Cowen, J.), 22 Wend. 483; Dupre 2. Thompson, 4 Barb. 279 (284); (aff'd 8 Barb. 538); Bolton ». Jacks, 6 Rob. 166; Haxtun v. Corse, 2 Barb. Ch. 506. ; * Woodgate v. Fleet, 64 N. Y. 566 (573); Oxley ». Lane, 35'N. Y. 340 (849 et seg.), DePeyster v. Clendining, 8 Pai. 295(26 Wend. 21); Savage v. Burnham, 17 N. Y. 561 (572 et seq., 576 et seg.); Purdy ». Hayt, 92 N. Y. 446 (458); Van Schuyver v. Mulford, 59 N. Y. 426; Tiers 2. Tiers, 98 N. Y. 568 (578); Schettler 0. Smith, 41 N. Y. 328 (335 et seg.); Grout v. Van Schoonhoven, 1 Sandf. Ch. 326 (340); Harrison v. Harrison, 36 N. Y, 543 (547 et seg.); Ken- nedy v. Hoy, 105 N. Y. 184 (187-8); Matter of Herrick, 32 N. Y. State Rep. 1032 (1086). The following cases may also be consulted: Darling 2. Rogers, 22 Wend. 488; Arnold 2. Gilbert, 5 Barb. 190; Dupre ». Thomp- son, 4 Barb. 279 (284); Shipman v. Rollins, Id. 311 (830); Knox ». Jones, 47 N. Y. 889; James ». Beasley, 14 Hun, 520; Williams ». Conrad, 30 Barb. 524; Killam v. Allen, 52 Barb. 605; Bean ». Bowen, 47 How. Pr. 306 (828). § 482.] GENERAL PRINCIPLES. 273 The cases of Coster v. Lorillard,! Hawley v. James,? aud Root v. Stuyvesant,’ are said in a later case not to hold a contrary doctrine, though in them the rule was not liberally applied. And where an estate is vested ina trustee upon several independent and separable trusts, some of which are legal, while others are in contraven- tion of the statute concerning suspension, the estate of the trustee will be upheld to the extent necessary to en- able him to execute the valid trusts.5 The statutory pro- vision that ‘‘ where an express trust shall be created for any purpose not enumerated in the preceding sections, no estate shall vest in the trustees,’ does not mean that if a separable portion of the trust is invalid no estate shall vest in the trustees as to the other portions.’ 114 Wend. 265. 216 Wend. 61. 318 Wend. 257. ‘Kane v. Gott, 24 Wend. 641 (666). See the opinion of Cowen, J., in Darling v. Rogers, 22 Wend. 483. *Van Schuyver v. Mulford, 59 N. Y. 426 (482); Adams ». Perry, 43 N. Y. 487 (500); Savage v. Burnham, 17 N. Y. 561 (570 et seg.); Woodgate ». Fleet, 44 N. Y. 1, and see cases cited, ante. 6 Woodgate v. Fleet, 44 N. Y. 1 (17, and note, p. 20). 7 See Greene v. Greene, 125 N. Y. 506. In determining, in any given case, whether an invalid provision is or is not independent and separable, im- portance may sometimes be attached to the fact that it stands by itself ina separate paragraph, Kennedy v. Hoy, 105 N. Y. 184 (187, 188), but such an arrangement is, nevertheless, quite consistent with the existence of one general scheme, all the parts of which are interdependent, and must stand or fall together. Holmes v. Mead, 52 N. Y. 382 (345). Where there is a void trust, the gift may take effect as a direct devise to the beneficiaries. Woodgate v. Fleet, 64 N.Y. 566 (573), and see, also, Doubleday v. Newton, 27 Barb. 431; M’Donald ». Walgrove, 1 Sandf. Ch. 274. But not if the result would be to transform a devise which was dis- tant and contingent into one which would be immediate and direct, or to subvert the essential purpose of the testator. Post v. Hover, 33 N. Y. 593 (597). See, also, Killam v. Allen, 52 Barb. 605; Morgan ». Masterton, 4 Sandf. 442 (449). 18 bo 4 nS SEPARABILITY. [CH. x. II. Contingencies with a Double Aspect. 1. Simple Alternative Contingencies. §$ 483. Here the testator or grantor designates two or more alternative states of fact, one or the other of which may exist at some specified future time or on the happening of some future event, and then provides an alternative future disposition of property for each re- spective state of facts. This method of disposition is specially covered in so far as concerns alternative future estates, by the Revised Statutes, which provide that two or more future estates may be created, to take etfect in the alternative, so that if the first in order shall fail to vest, the next in succession shall be substituted for it, and take effect accordingly... In schemes of dis- position of this character, there is no difficulty in sus- taining such of the alternative future dispositions as are valid, and suppressing such as may be invalid. When the designated time comes, if- the existing state of facts is that on which a valid future disposition was founded, that disposition goes into effect ; while if the existing state of facts is that on which an illegal future disposition was founded, the latter does not go into ef- fect, and as to the future disposition of the property testator is taken to have died intestate. This class of provisions is illustrated by many instances.’ It is to be noticed that these schemes of alternative disposition furnish an apparent exception or qualification to the rule already stated, that the validity of a gift must not TLR. S. 724, § 25. ? Kiah v. Grenier, 56 N. Y. 220 (225); s. c. 1 T. & C. 888, which see; De- Kay 2. Irving, 5 Den. 646 (654) ; Schettler ». Smith, 41 N. Y. 328; Wilson o. White, 109 N. Y. 59 (61); ef. Kelso ». Lorillard, 85 N. Y. at 182; Rose ». Rose, 4 Abb. Ct. App. Dec, 108 (114, 115); Genet v. Hunt, 113 N. Y. 158; Marsden, Rule against Perpetuities, 74. For a valuable discussion of alter- native contingencies see Fowler v. Depau, 26 Barb. 224. § 454.] CONTINGENCIES WITH A DOUBLE ASPECT. ‘275 be made to depend on subsequent events. In the cases under consideration, we are to wait, however, until the happening of future events, to determine whether either of the alternative dispositions can be sustained. As Mr. Lewis expresses it, ‘‘ Gifts of this kind so far differ from all other limitations in the construction to be put upon them in reference to the laws of remoteness, that the validity of them depends entirely on subsequent events; if the event be such as gives operation to the remote contingency, then the limitation is wholly void. If, on the other hand, the actual state of things corresponds to that contemplated by the alternative valid branch of the contingency, the gift takes effect... The validity of such dispositions does not, however, in reality rest up- on an exception to the general rule, as clearly ap- pears from the following statement of the rule itself, to be found in the opinion in Fowler v. Depau.’ ‘The rule is, that if on a particular contingency the power of alienation is so suspended that it may possibly exceed the limits prescribed by law, the estate granted on that particular contingency is void; but this defect, which would affect the estate only if that contingency had occurred, can have no effect on it if that contingency does not occur; then that unlawful estate is not at- tempted. Accordingly, the good alternative estate is sustained, notwithstanding the defect which would have been in the other, if the course of events had created it.” 2. Involved Alternative Contingencies. § 464. The peculiar characteristics of the cases clas- sified under this head may best be shown by illustra- 1 Quoted in Fowler v. Depau, 26 Barb. 224 (at 238). 2 26 Barb. at 236. 276 SEPARABILITY. [CH. x. tions. But a general description of the class may be given as follows: Where the contingency, upon the happening of which a future estate or interest is to become alienable or vested, is too remote under the rules concerning suspension or postponement, the future disposition is invalid. But in such cases it sometimes happens, from the nature of the particular circumstances, that there is another contingency which, if it happens at all, must happen within the statutory period, and must in- volve the simultaneous happening of the specified con- tingency. Sometimes the testator provides for this state of things in terms, and after directing that the fu- ture disposition shall take effect on the happening of the too remote contingency, goes on to provide that it shall also take effect in case of the happening of the other event which, if it happens at all, must happen in due time and must involve the simultaneous happening of that first specified. § 485. If testator makes these provisions, then there is no difficulty in splitting the gift, as it is said, and al- lowing it to take effect in case of the happening of the event not too remote ; although it could not be al- lowed to take effect otherwise, whenever the specified and possibly too remote event might happen. But where such a state of things exists and the testator does not mention or make any provision for the valid contingency, the question is whether the court will then split the gift for him, that is, whether they will recognize the fact that there is an unmentioned contin- gency. which may happen, and which, if it does happen at all, will do so in due time and will necessarily in- volve the simultaneous happening of the contingency specified by the testator; and whether they will sustain § 488.] CONTINGENCIES WITH A DOUBLE ASPECT. 277 the future limitation in case of the happening of this valid but not specifically mentioned contingency. § 486. Here the rule established by the English courts is that as the time for the taking effect of the gift, as defined by the creator of the estate, is too re- mote, it is invalid. The court will not split the gift for him,’ and allow it to take effect in case the second- ary unmentioned event does in fact happen. But he might himself have split it by providing in terms that the gift should take effect upon the happening of either event.’ § 487. This class of cases isillustrated, and the prin- ciples upon which the courts rely in passing upon them, are clearly stated by Jessel, M. R., in Miles v. Harford; as follows : “* As T understand the rule of law, it is a question of expression. If you have an expression giving over an estate on one event, and that event will include another event which itself would be within the limit of perpe- tuities, or, as I say, the Rule against Perpetuities, you cannot split the expression so as to say if the event oc- curs, which is within the limit, the estate is to go over, although, if the event does not occur, the gift over is void for remoteness. In other words, you are bound to take the expression as you find it, and if, giving the proper interpretation to that expression,. the event may transgress the limit, then the gift over is void. § 488. ‘* What I have said is hardly intelligible with- out an illustration: On a gift to A for lite, with a gift ' Proctor vo. Bishop of Bath and Wells, 2 H. Bl. 358. 2 Schettler 0 Smith, 41 N. Y. 328 (336, 345-6); Longhead ». Phelps, 2 Wm. BI.704; Goring ». Howard, 16 Sim. 395; Monypenny ». Dering, 16 M. & W. 418 (436). 3 12 Ch. D. 691 (702-5), quoted by Professor Gray. 278 SEPARABILITY. [CH. x. over in case he shall have no son who shall attain the age of twenty-five years, the gift over is void for re- moteness. Ona gift to A for life, with a gift over if he shall have no son who shall take priest’s orders in the Church of England, the gift over is void for remoteness ; but a gift superadded, ‘or if he shall have no son,’ is valid, and takes effect if he has no son, yet both these events are included in the other event, because a man who has no son certainly never has a son who attains twenty-five or takes priest’s orders in the Church of England, still the alternative event will take effect, be- cause that is the expression. ¥ 489. ‘‘ The testator, in addition to his expression of a gift over, has also expressed another gift over, on another event, although included in the first event, but the same judges who have held that the second gift over will take effect where it is expressed have held that it will not take effect if itis not expressed, that is, if it is really a gift over on the death before attaining twenty-five, or taking priest’s orders, al- thongh, of course, it must include the case of there being no son. That is what they mean by splitting, they will not split the expression by dividing the two events, but when they find two expressions, they give effect to both of them, as if you had struck the other out of the will. That shows it is really a question of words and not an ascertainment of a general intent, because there is no doubt that the man who says that the estate is to go over if A has no son who attains twenty-five, means it to go over if he has no son at all, it is, as I said before, because he has not expressed the events separately, and for no other reason. That is my view of the authorities. This isa question of au- thorities. § 491.] CONTINGENCIES WITH A DOUBLE ASPECT. 279 § 490. ‘‘Now we come to the case we have before us. The estate is to go over if any of his sons get another estate, that is, if any one of his sons who has got possession of this estate, gets one of the other es- tates, or if any of the issue male of the body of any of the sons gets the estate. Here you have two events expressed. He might have said, if any of the issue male of my body get the estate, which would have in- cluded both events, and then you could not have split it up; but he has not said so. He has divided it for some reason or other. probably a conveyancer’s one be- cause it is an alteration of a conveyancer’s form. The words ‘sons’ and ‘issue male’ are both added, but he has divided that and suggests two events, then and in any of the events ‘and so often as the same shall hap- pen tbe uses hereby limited of and concerning my free- hold hereditaments to or in trust for any such younger son or whose issue male shall for the time being become entitled. aforesaid, and to or in trust for his issue male shall absolutely cease.’ That is, there is a cesser of the estate either of the younger son or the issue male of the younger son. Why should I alter the words? Why should I say that the event of the younger son properly expressed succeeding to the estate being in due time is to be void for remoteness? The reason suggested to me is this, it is quite plain he means it to go along the whole line, I agree. § 491. ‘So in the case of a man dying without a son attaining twenty-five. That is not good although he means it. to apply to the case of his having no son, and there is none. It is not what he means as to the event, but whether he has expressed the event on which the estate is to cease, so as to bring one alter- native within the limits, and if he has chosen to say the estate is to cease first of all, as he might have said, 280 SEPARABILITY. (CH. Xx. if a younger son becomes a peer or attains the age of fifty, or any other event within the limits, or any of the issue male of my younger sons shall become a peer, one gift over might be valid, he might have said if any of my issue male shall become a peer, or if the issue male of my younger son become a peer thereupon the estate shall go over, that would have been different, but I think [ have no right to alter the expression. The law is purely technical. The expressions are there, and using them gives effect to the real intention. Why should I go out of my way to extend technical law to a case to which it has not hitherto been extended? It seems to me that I ought to read the expressions as I find them. The event which is expressed has happened. It is within legal limits, and I think the estate should go over.” } § 492. An illustration of the case where the gift is split by testator is found in Schetiler v. Smith,? where there was a gift in trust, for John Jacob for bis life, and then for his widow, if he should leave a widow, for her life, with a contingent remainder over on the death of the widow, or on the death of John Jacob leaving no widow. At testator’s death John Jacob was unmarried. On principles already stated,’ the trust for the widow, and the limitation over to vest on her death, were held ille- gal. But the death of John Jacob leaving no widow must happen, if ever, by the end of one life, and if it happen must obviate for good and all the possibility of further suspension under the other contingency. And as testator provides for both contingencies, and * See, also, Gray, Rule against Perpetuities, § 831 et seg.; Marsden, Rule against Perpetuities, 72 et seg. 341 N. Y. 828. 3 Ante, § 102 et seq. § 494.] CONTINGENCIES WITH A DOUBLE ASPECT. 281 as John Jacob died unmarried, the court sustain the re- mainder limited on that contingency. § 493. It is of importance to notice that the general rule already stated is founded on a case! where the gift was not a remainder, and could not have taken effect as such on any contingency. It was given ‘‘to the first or Other son of B that should be bred a clergyman, or be in holy orders, in fee, but in case B should have no such son, then to Cin fee.’”” The unmentioned event here, which if it happen at all must happen within one life in being, and which if it happen must involve one of the otherwise too remote events specified by testa- tor, is the death of B leaving no issue at all. Now it is evident that if testator had provided for this latter con- tingency and had said that the gift should also take effect in that event, yet it would not have been a re- mainder. It would have been an executory devise to take effect on an event not too remote and in itself valid. But the application of the general rule turns on the distinction between remainders and executory limi- tations. For in vers v. Challis,? it is held that the rule does not apply where, if the gift is split, the new contingency thus brought to light and recognized is a remainder. Forin such a case the court will split the gift even though the testator has not done so, and will permit the remainder to take effect, if the events allow, though the executory limitation is invalid. § 494. Such is the English rule with its limitations. It is not perceived that our courts, by which the law on this subject has not as yet been fully elaborated, will find any reason in the scheme of our laws for maintain- 1 Proctor ». Bishop of Bath and Wells, 2 H. Bl. 858. 27 H. L. C. 581 (547, 556); Marsden, Rule against Perpetuities,.73; Gray, Rule against Perpetuities, § 338. 282 SEPARABILITY. [CH. x. ing the distinction illustrated by Proctor v. Bishop of Bath and Wells! on the one hand, and Evers v. Challis? on the other. It would appear more likely that they would adopt one general rule which would lead to like results in both cases. The rule laid down in Evers v. Challis? would appear in some respects the more con- sonant with the principles of construction already adopted by our courts on other questions in this field. If thus generally applied, this rule would be, that where a future gift is created to take effect on the happening of an event which may be too remote, and there is an- other event which may happen and which if it happens at all must happen within the statutory period and must involve the simultaneous happening of the first mentioned event, here the court will split the gift, though it is not split by the terms of the instrument, and will allow it to take effect in case the event does happen which is not too remote, and this whether the gift in question be limited on a precedent gift or not. Such a rule would be supported by much of the reasoning in favor of the doctrine laid down for the next class of contingencies now to be examined, in that the uncertainty could not possibly continue beyond the statutory period. By the end of that time events must have determined whether or not the gift can take effect. 3. Contingencies with an Alternative Application. § 495. There are two leading cases that well illus- trate this class. 12H. Bl. 358. 27H. L. C. 581. § 497.] CONTINGENCIES WITH A DOUBLE ASPECT. 283 § 496. (a.) Purdy v. Hayt.' Here testator devised land to his sisters Jane and Catherine, as tenants for life with cross remainders; and after the death of both, then to Elizabeth for life ; and at her death the princi- pal to be divided equally between any children Eliza- beth might leave surviving. Here the following points call for special attention : § 497. (1.) The ultimate remainder is contingent. (2.) The interests of Jane and Catherine, although undivided, are to be contemplated as distinct shares.’ (3.) The share of the sister first dying is limited to pass through three successive life estates before reach- ing the ultimate remainder, while the share of the sis- ter second to die is limited to pass through only two successive life estates before reaching the ultimate re- mainder. For suppose Jane to be the one first to die. Her share has then passed through one life, and goes in cross remainder to Catherine, whose life constitutes a second successive life. On her death it is limited to Elizabeth for life, but as this estate is the third in suc- cession it must be cut off. The ultimate remainder, however, is contingent, and the persons entitled to it cannot be known until E’s death. A contingent re- mainder cannot be accelerated to take effect at the close of the second successive life estate.1 The statute on this point® refers only to vested remainders.* Therefore as to this share the ultimate remainder is il- legal. Recurring now to Catherine’s own share, at her death it has passed through but one life. Jane’s prior 192 N. Y. 446. * See ante, § 345 et seg. 4 See ante, § 321. 4Purdy v. Hayt, 92 N. Y. 446 (452); Dana v. Murray, 122 N. Y. 604 (618). *1R.S. 728, § 17. 284 SEPARABILITY. [CH. xX. death having removed the possibility of a cross remain- der on this share, it passes at once to Elizabeth. On her death it has passed through but two lives, and may, therefore, vest in remainder in her surviving children. (4.) Looking at the limitations as they stand in the will, it is evident that the ultimate remainder will be good as to one share, and will be bad as to the other. Which share it is that will be affected by the invalidity, cannot possibly be determined beforehand. This un- certainty is of a different character from that involved in the preceding classes, for here the uncertainty arises out of the question as to which share it is that is to be affected by an illegal remainder. Until one tenant or the other dies, the uncertainty involves all portions of the property. § 498. Inasmuch as this uncertainty must cease, and the share with the illegal remainder must be ascer- tained within the statutory period, it was held that the entire remainder is not invalid, and that when, by the death of either Jane or Catherine, it is ascertained which ultimate remainder is void, it may be cut off, while the ultimate remainder on the other share may be preserved. § 499. (b.) Dana v. Murray.t Here land was given in trust for one life, with a power of appointment by will in the beneficiary. At the death of this beneficiary, therefore, the property had already passed through one life. Apart from certain provisions not here in point, the grantee of the power devised the land to four tenants in common, for life, with cross remainders, and with a further contingent ultimate remainder. It was con- tended, that under the authority of Purdy v. Hayt "122 N. Y. 604. § 499.] CONTINGENCIES WITH A DOUBLE ASPECT. 285 (ante), the share of the one who might prove to be the fourth to die would have passed through only two lives inall,and might be sustained. But the court, in deciding to the contrary, point out the distinction that here the uncertainty as to which tenant will be the fourth to die cannot of course be determined until three other lives have expired. In other words, an uncertainty of the character here under discussion is fatal to all the ulti- mate remainders, unless it must cease, and the remain- ders become capable of classification as valid or invalid, within the statutory period. CHAPTER XI. CONSTRUCTION. . Failure of Issue. . Survivorship. . Estates Tail. . Rulein Shelley’s Case. . Lapsed Legacies. Expressions of Postponement. . Death before Division. . Absolute Power of Disposition. . Childbearing, Capacity Presumed. . General Rule of Construction. Pw wre SH MDIAM _ § 500. It would be out of place here to enter on an examination of the principles of construction which have been recognized by the courts or established by statute in connection with the subjects of vesting and suspension. But there are a few leading ones which it may be well to mention. § 501. (1.) ‘‘ Where a remainder shall be limited to take effect on the death of any person without heirs, or heirs of his body, or without issue, the words ‘ heirs’ or ‘issue’ shall be construed to mean heirs or issue living at the death of the person named as ancestor.” * This rule constitutes a reversal of the common law rule, according to which, as a general proposition, the words in question would have been taken to mean that the re- mainder was to take effect either at the death of the ancestor leaving no issue surviving, or, if he left issue, then at any future time when his issue in any genera- 11K. S. 724, § 22; Mich. G. S. § 5538; Minn. G. S. § 3978; Wis. A. S. § 2046; Goodell ». Hibbard, 32 Mich. 47. § 502.]. CONSTRUCTION. 287 tion, in all its branches, should die out. This was known as an “ indefinite failure of issue.”! Under the present rule, if the ancestor leaves issue him surviving, the alternative estate is thereby cut off forever, and will never be revived again even though that issne should afterwards be extinguished? § 502. (2.) Where there is a devise in fee, with a de- vise over,’ in case of death,‘ either to survivors, or to substituted devisees, the ‘‘ death ’”’ and ‘‘ survivorship,” referred to are such as occur during the lifetime of the testator only. Upon his death the limitations over can have no further effect. This construction is, of course, only adopted in the absence of language indic- ative of a different intention on the part of the testa- tor. The rule itself is one intended to reach the intent 1 Ferris ». Gibson, 4 Edw. Ch. 707, For a history of the decisions on this phrase see the Chancellor’s opinion in Anderson v. Jackson, 16 Johns. 382; Miller v. Macomb, 26 Wend. 229; 4 Kent’s Comm. 271. The arbitrary meaning might, even at common law, be overcome by evidence of a contrary intent. Cutter v. Doughty, 23 Wend. 5138 (518). For a discussion of the subject of “failure of issue” and the various distinctions and qualifications affecting the general rule, see 2 Washburn on Real Property, Chap. VII; Tiedeman on Real Property, § 542; Williams on Real Property, 214 ez seq. 2 But if testator’s intent to refer to some other time than that of his own death is clear, the intent prevails. Thus, the phrase death without issue may refer to such death during a precedent life estate, and subsequent to testator's death. Miller v. McBlain, 98 N. Y. 517. 3 See Harris v. Strodl, 32 N. Y. St. Rep. 1090. “ For the hearing of “ civil death,” under instruments providing for de- volution of estate in the event of “death,” see Avery v. Everett, 110 N. Y. 322. 5 Kelly ». Kelly, 61 N. Y. 47 (50); Stevenson ». Lesley, 70 N. Y. 512 (515); Livingston v. Greene, 52 N. Y.118; Kerr v. Bryan, 32 Hun, 51 ; Black v. Williams, 51 Hun, 280; Moore v. Lyons, 25 Wend. 119 (123); see first two paragraphs of opinion in Matter of N. Y. L. & W. R. Co., 105 N. Y. at 92; Doe dem. Long ». Prigg, 8 B. & C. 231; see Van Cott o. Prentice, 104N. Y. 45. 6 See Matter of N. Y. L. & W. R. Co., 105 N. Y. at 92; Searles ». Brace, 19 Abb. N. C. 10 (14). 288 CONSTRUCTION. [CH. X.. of the testator, and if his intent is shown to be other- wise, by either explicit expressions or by implication, the general ruleis inapplicable... The same rule applies. where the contingency named is a “death without: issue.” In such a case the reference is to a death with- out issue during testator’s life,? in the absence of words in the will showing a contrary intent. And so also if the contingency be the death of the primary de- visee “childless.” * But the tendency is to lay hold of slight circumstances in the will to vary the con- struction and to give effect to the language according to its natural import. When such are found, the rule does not apply.® 1 Kelso v. Lorillard, 85 N. Y. 177; 15 N. Y. Supp. 470. 2 Quackenbos v. Kingsland. 102 N. Y. 128; Embury ». Sheldon, 68 N- Y. 227; Carroll o, Conley, 31 N. Y. State Rep. 716; Mead o. Maben, 14 N.. Y. Supp. 732. * Beck » Ennis, 4 Hun, 126; see Jn re Tienken, 15 N. Y. Supp. 470. ‘Gibson ». Walker, 20 N. Y. 476 (483). In Davis v. Davis, 118 N. Y. 411, there was a devise to A,B and OC, and the survivor and survivors of them in case either died before testator without issue; and in case either died before testator leaving issue, the: share of such deceased child to go to such issue. A died first, leaving issue. B died next, leaving no issue. B’s “ survivor” was (; the children of A were not ‘‘survivors.” On testator’s subsequent death, C took his. own 4, and also as B’s survivor; and the children of A took}. To the same point, see Guernsey ». Guernsey, 36 N. Y. 267, where according to- testator’s purpose, the application of the survivorship clause was not re- stricted to the period before testator’s death, and where it was held that the word “survivor” did not cover the children of a deceased member of the class, 5 Vanderzee v. Slingerland, 103 N. Y. 47 (56); Matter of N. Y. L. & W.R. Co., 105 N. Y. 89 (96); Adams v. Becker, 28 N. Y. State Rep. 910; Nellis ». Nellis, 99 N. Y. 505 (514) ; Matter of Maben, 832 N Y. State Rep. 790; Miller ». McBlain, 98 N. Y. 517 (521), where see also respondent’s points, p. 520; Buel v. Southwick, 70 N. Y. 581; Austin 7. Oakes, 117 N. Y. 577; Guernsey 0. Guernsey, 86 N. Y. 267 (269), where testator devised land to- his three children in fee, share and share alike, and in case any one should die “ without issue,” his share to go to the “survivors.” Here the court found, in the will, a purpose to permanently exclude the issue of a fourth child who died before the date of the will, and for whom the testator had otherwise provided. This purpose might have been frustrated by the death. § 505.] CONSTRUCTION. 289 § 503. It will be noticed that the point we are now discussing, and also the rule stated in paragraph (1) above, both deal with the phrase ‘‘dying without is- sue,”’ but they treat two different aspects of it. In ap- proaching the phrase, in any given will, we ask: When is it that this ‘‘ failure of issue’? must occur, if ever? And paragraph (1) gives the statutory answer, namely: ‘‘At the death of the person whose issue they are.” Then a second question arises, namely: When is it that this ‘‘death”’ referred to must take place, in order to have the contemplated effect? And to this paragraph (2) gives the answer, namely: ‘‘ Before the death of the testator, unless a contrary intent appear.” § 504. (3.) ‘‘All estates tail are abolished, and every estate which would be adjudged a fee tail according to the law of this State, as it existed previous to the twelfth day of July, one thousand seven hundred and eighty-two, shall hereafter be adjudged a fee simple, and if no valid remainder be limited thereon shall be a fee simple absolute.”’! § 505. ‘‘ Where a remainder in fee shall be limited upon any estate, which would be adjudged a fee tail, according to the law of this State, as it existed previ- of one of the three, intestate and without issue, after testator’s death; and in view of this purpose, it was held in this suit for partition that on the death without issue of B, one of the three children, after testator’s death, his share went to C, the then sole“ survivor.” If the gencral rule had beeh applied, B’s share would have vested absolutely in B at testator’s death, and on B’s death would have gone not te C as survivor, but to B’s heirs, of whom C was but one. For the rule concerning survivorship, in personal property, see ante, § 426. 11 BR. 8. 722, § 3; see Buel ». Southwick, 70 N. Y. 581 (585). (This stat- ute applies to remainders in fee tail as well as to present estates in fee tail, Vanderheyden >. Crandall, 2 Den. 9.) Goodell v, Hibbard, 82 Mich. "47; Mich. G. 8. § 5519. For corresponding provisions, see Wis. A. S. § 2027; Minn. G. 8. § 3954. 19 290 CONSTRUCTION. (CH. XI. ous to the time mentioned in the last section, such re- mainder shall be valid as a contingent limitation upon a fee, and shall vest in possession on the death of the first taker without issue living at the time of such death.” + § 506. Fee tail at common law was a fee restricted to particular heirs, namely: the “heirs of the body.”’’ A remainder might be devised to take effect after the failure of such a fee for lack of heirs of the kind de- scribed. § 507. (4.) ‘‘Where a remainder shall be limited to the heirs, or heirs of the body, of a person to whom a life estate, in the same premises, shall be given, the per- sons who, on the termination of the life estate, shall be the heirs, or heirs of the body, of such tenant for life, shall be entitled to take as purchasers, by virtue of the remainder so limited to them.”* This rule reverses the so-called Rule in Shelley’s Case,‘ under which, in the case supposed, the life tenant would take a fee, which he could grant or devise, and the remaindermen, if they took anything at all at his death, took it by descent from him, and not directly (or, as it was called, by “pur- chase” *) under the original instrument. Under the present rule the ancestor takes merely the life estate, while his ‘“‘heirs” take the future estate in remainder. § 508. (5.) A legacy or devise still lapses, as at com- mon law, where a legatee or devisee fails to survive the 11 KR. S 722, $s 3, 4; Nellis v. Nellis, 99 N. Y. 505 (511); Mich. G. 8. § 5520; compare Minn. G. 8. § 3955; compare Wis. A. 8. § 2027. ? Greenleaf’s Cruise, Vol. I, § 66 et seg. For the allowable variations of phraseology in creating an estate tail, see Williams on Real Property, 216 et seq. : 31 R. 8. 725, § 28; Mich. G. 8S. § 5544; Minn. G. 8. § 8984; Wis. A. S. § 2052. ‘ Greenleaf’s Cruise, Vol. IV, 304 et seg.; 4 Kent, Comm. 214. 5 See ante, § 4. : § 512.] CONSTRUCTION. 291 testator. The rule has been modified (2 B.S. 66, § 52) to this extent, that where the devise or bequest is to a child or descendant of the testator who dies in his life- time leaving a descendant who survives the testator, the estate or interest given vests in the descendant of the legatee or devisee.! § 509. (6.) There is a class of expressions which might at first sight appear to indicate an intention to postpone vesting, but which are held to be consistent with immediate vesting in interest, and to indicate only the time when the estate shall vest in possession. It is impossible here to do more than call attention to them, and offer one or two illustrations : § 510. a. An estate in land is devised to an infant ‘‘when he attains the age of twenty-one years.” This phrase creates a vested, and not a contingent estate.’ § 511. 6. Testator devises an estate to A for life, and ‘‘from and immediately after’’ A’s death, to B in fee. At testator’s death B takes a vested remainder.’ Or, if B is not then born, the remainder.vests in him at his birth.‘ § 512. (7.) Where property devised is to vest upon division ata future time, and the devisee lives until that ’ Matter of Wells, 113 N. Y. 396. 2 Radley v. Kuhn, 97 N. Y. at 35; Tucker v. Tucker, 5 N. Y. 408; Roome 2. Phillips, 24 N. Y. 463; Boraston’s Case, 2 Coke, 19. For similar phrases with the same meaning, see Goodtitle v. Whitby, 1 Burr. 228; Ed- wards ». Hammond, 3 Lev. 132; Bromfield v. Crowder, 4 B. & P. (New Reports), 313; Doe . Moore, 14 East, 601. 3 Ackerman ». Gorton, 67 N.Y. 63; Livingston v. Greene, 52 N. Y. 118; Moore »v. Lyons, 25 Wend. 119; Boraston’s Case, 2 Co. 19; Doe ». Pro- voost, 4 Johns. 61; Rose v. Hill, 3 Burr. 1881; Doe v. Prigg, 8 B. & C. 231; Coit v. Rolston, 44 Hun, 548. 4 Taggart v. Murray, 53 N. Y. 233. 292 CONSTRUCTION. [CH. XI. time but dies before actual division, it vests in him at the time designated for division." § 513. (8.) The question whether a given devise cre- ates an absolute fee, or a less estate, is sometimes of importance in determining whether vesting is or is not unduly postponed in any of the limitations, or the power of alienation unduly suspended. The cases cited in the note set forth the principles upon which the courts ‘rely in deciding the question.’ § 514. (9.) In determining whether, in a given case, the number of lives during which the power of aliena- tion is to be suspended may exceed two, the law will not assume that any living person is too old to have children born in future * 1 Clason v. Clason, 18 Wend. 369; see ante, §§ 424-5 3« Absolute power of disposition :’ 1 R. 8. 727, § 47; and 733, §§ 81-5; Crozier v. Bray, 120 N. Y. 366, and cases cited ; Wager v. Wager, 96 N. Y. 164; Crain v. Wright, 114 N. Y. 807; Rose v. Hatch, 125 N. Y. 427; Campbell v. Beaumont, 91 N. Y. 464 (466 ez seg.); Van Horne v. Campbell, 100 N. Y. 287 (801 and 310); (to be read in connection with Greyston v. Clark, 41 Hun, 125; Leggett ». Firth, 538 Hun, 152); Crooke v. County of Kings, 97 N. Y. 421 (485); Wells o. Seeley, 47 Hun. 109; Matter of French, 52 Hun, 303; Cutting v. Cutting, 86 N. Y. 522 (536); Totten ». Sprague, 15 Week. Dig. 206; Ferris v. Gibson, 4 Edw. Ch. 707 (710). To give a fee it must be for sole benefit of persons exercising it. Haynes v. Sherman, 117 N. Y. 483; Wright o. Miller, 8 N.Y.9; Germond ». Jones, 2 Hill, 569; Rose ». Hatch, 55 Hun, 457; Jones v. Jones, 66 Wis. 310. Fee inferred from personal charge : Nellis v. Nellis, 99 N. Y. 505 (515, 516); Jackson ». Martin, 18 John. 31 ; see Clift», Moses, 116 N. Y. 144; Crain v. Wright. 114 N.Y. 307. Where the fee is absolute, and the gift is followed by inconsistent restrictions not included in the operative part of the gift, or imposed as conditions and intended merely as restrictions on what has been already given, if they extend beyond the statutory period they will be cut off, and the gift will be good. Oxley v. Lane, 35 N. Y. 840 (346). As to whether such restrictions are valid for any period, see id. p. 847, and cases cited; Lov- ett o. Gillender, 35 N. Y. 617; and ante, § 141. 3 Miller v. Macomb, 26 Wend. 229 (234); Taggart o. Murray, 53 N. Y. 238 (289) ; Gray, Rule against Perpetuities, § 215. § 515. ] CONSTRUCTION. 293 § 515. (10.) Testamentary provisions should be con- strued as if the rule against suspension did not exist, and only after the meaning has thus been determined may the rule be applied to learn whether the provis- ions are valid.’ But this rule is constantly subordinated to the rule that where there is fair room for two con- structions, the instrument should be preserved rather than defeated.’ 1 Cottman v. Grace, 112 N. Y.299 (809); Matter of Russell, 5 Dem. 388. 2 Du Bois v. Ray, 85 N. Y. at 168; Post v. Hover, 33 N. Y. at 601; see Gray, Rule against Perpetuities, 378; Roe v. Vingut, 117 N. Y. 204 (218). CHAPTER XII. CONFLICT OF LAWS. I. Land: Law of Place where it Lies. II. Personalty: Law of Testator’s, and of Legatee’s Domicil. § 516. I. THE VALIDITY OF A TESTAMENTARY DISPO- SITION OF LAND DEPENDS ON THE LAW OF THE PLACE WHERE THE LAND LIES.! Iilustrations. § 517. (1.) A resident of Connecticut devised lands in New York to trustees, with contingent remainders to four unincorporated associations. These remainders were held void as contravening the law of New York.’ The same principle applies to limitations affecting land in New York purchased by the trustees under the pro- visions of the will. § 518. (2.) The same testator devised an alternative contingent remainder to the treasurer of one of said societies, in case the society was unable to take. The beneficiaries were not ascertainable. This was also held void on the same ground.® § 519. (3.) The same testator devised land in New York to a society incorporated in Maryland, which had " Lee vo. Tower, 124 N. Y. 370. As to rule in case of voluntary transfer of property inter vivos, see War- ner 0. Jaffray, 96 N. Y. 248. > White o. Howard, 46 N. Y. 144. For a discussion of the general prin- ciples involved, see Shields 7. Klopf, 70 Wis. 19. 3 White v. Howard, 46 N. Y. 144 (162 3). § 524.] CONFLICT OF LAWS. 295 never been authorized by the State of New York to hold land in New York. Such authority is essential. The devise was held void on the same ground. § 520. (4.) A resident of New York devised land in California to trustees. It was held that the validity of the trust depended on the laws of California.’ § 521. (5.) A resident of Massachusetts devised land in New York to trustees, with a contingent remainder to vest at the end of twelve lives. The devise was held void on the same ground.? § 522. (6.) A resident of State A. by his will effects a double conversion, at his death, of lands in State B., first into money and then into lands in State ©. The property is regarded as at once converted into lands in State C., and the validity of the testamentary provis- ion for the suspension of the power of alienation is to be determined in State C., and by its laws.’ § 523. II. THe VALIDITY OF A TESTAMENTARY DIS- POSITION OF PERSONAL PROPERTY DEPENDS PABTLY ON THE LAW OF THE TESTATOR’S DOMICIL, AND PARTLY ON THAT OF THE LEGATEE’S DOMICIL. The leading case on this subject is § 524. Chamberlain v. Chamberlain‘ (1871). A testa- tor domiciled in New York bequeathed property to the Centenary Fund Society, a corporation chartered under the laws of Pennsylvania. On questions arising out of the charitable nature of the corporation, the court were asked to hold that the validity of the gift for such pur- " Knox v. Jones, 47 N. Y. 389; compare Hawley v. James, 7 Pai. 213. ? Hobson v. Hale, 95 N. Y. 588. 3 Ford v. Ford, 80 Mich. 42. ° 43 N. Y. 424. For a discussion of the principles involved, see Shields ». Klopf, 70 Wis. 69. 296 CONFLICT OF LAWS. {CH. XII. poses must be determined by the laws of New York. This the court declined to do, and held that § 525. (a.) The law of the testator’s domicil controls, as to the formal requisites essential to the validity of the will as a means of transmitting property, the capac- ity of the testator, and the construction of the instru- ment. § 526. (b.) If, within the law of the testator’s dom- icil, a will has all the forms and requisites to pass the title to personalty, the validity of particular bequests will depend upon the law of the domicil of the legatee and of the government to which the fund is by the terms of the will to be transferred for administration, and the particular purposes indicated by the testator. § 527. (c.) If the legatee, whether a natural or artifi- cial person, and whether taking in his own right or in trust, is capable, by the law of his domicil, to take the legacy in the capacity and for the purposes for which it is given, and the bequest is in other respects valid, it will be sustained, irrespective of the law of the testa- tor’s domicil. § 528. (d.) The rule last above stated is subject, how- ever, to this qualification, that if the law of the testa- tor’s domicil, in terms, forbid bequests for any particu- lar purpose, or in any other way limit the capacity of the testator in the disposal of his property by will, a gift in contravention of the law of the testator’s domi- cil would be void everywhere. § 529. (¢.) So far as the validity of bequests depends upon the general law and policy of the State affecting * See, also, Kennedy v. Town of Palmer, 1 T.& C., 581; Matter of Huss, 126 N. Y. 587. § 532.) CONFLICT OF LAWS. 297 property and its acquisition generally, and relating to its accumulation, and suspension of ownership and of the power of alienation, each State is sovereign as to all property within its territory, whether real or personal. § 530. (f-) It is no part of the policy of the State of New York to interdict perpetuities, or gifts in mort- main, in Pennsylvania or California. Each State de- termines those matters according to its own views of policy or right, and no other State has any interest in the question, and there is no reason why the courts of this State should follow the funds bequeathed to the Centenary Fund Society to Pennsylvania, to see whether they will be there administered in all respects in strict harmony with our policy and our laws. The court also lay down the following principles: | § 531. (g.) Whatever may be the law in the State of Pennsylvania, a testator domiciled in that State cannot establish by bequests of personalty to citizens or cor- porations of this State, a charity or trust to be admin- istered here inconsistent with the policy of the laws of this State. § 582. (h.) A gift by will of a citizen of this State to a charity, or upon a trust to be administered in a sister State, which would be lawful in this State, the domicil of the donor, would not be sustained if it was not in ac- cordance with the laws of the State in which the fund was to be administered. Bequests in aid of foreign charities, valid and legal in the place of their existence, will be supported by the laws of the State in which the bequests are made. We will now apply the tests fur- nished by Chamberlain v. Chamberlain to the principal cases on the points involved. 298 CONFLICT OF LAWS. (CH. XII. 8 533. Wood v. Wood’ (1836). Here a testator domi- ciled in New York bequeathed personal property to trus- tees, to invest in Ohio. His wife and children also re- sided in New York. The residence of the trustees does not clearly appear. The provisions of the will would be illegal under the laws of New York, both for undue sus- pension and for other reasons. The opinion of the court was that the validity of the provisions must be determined by the laws of New York. § 534. The authority of this case was discredited in Chamberlain v. Chamberlain, where it was said that it ‘‘was peculiar in its circumstances, and can, in view of the final disposition of it by the chancellor” (a post- ponement of final decree, and recommendation to com- promise), scarcely be regarded as a precedent. It would also appear that it might be reconciled; so far as ap- pears the trustee was not a resident of another State, and the references to Ohio were mere directions con- cerning investment of the bequests ; and the persons in whose names the fund was to be invested, and who were to be also the beneficial owners, were at testator’s death residents of New York. It is true that the testator proposed to have the beneficiaries removed to Ohio, there to receive the benefits of the trust and other dis- positions of the will. In any event, if the case is hos- tile to Chamberlain v. Chamberlain, it has no weight. § 535. Phelps’ Executor v. Pond? (1861). Here the be- quest was by a New York testator to his executors, for the purpose of establishing a college in Liberia. Here the validity of the provisions of course depended on the laws of New York. 15 Pai. 596. 723 N.Y. 69 (77). § 539.] CONFLICT OF LAWS. 299 § 536. Bascom v. Albertson’ (1866). Here a testator, domiciled in New York, bequeathed property to persons to be appointed after his death by the Supreme Court of Vermont, to found an educational institution. It was held that as these provisions were void under the laws of New York, they could not be sustained. § 537. As pointed out in the opinion in Chamberlain v. Chamberlain, the trouble here is that there was neither beneficiary nor cestui que trust. § 538. Manice v. Manice* (1871). Here a testator dom- iciled in New York bequeathed $5,000 to Yale College, which was authorized by the laws of Connecticut to re- ceive the bequest. It was accompanied with certain “re- quests,” viz.: To accumulate the interest until the ag- gregate fund should reach $30,000, and to apply the in- terest continuously to educate one person who should bear testator’s paternal name, and be a lineal descend- ant of testator. It was held that the validity of these requests must be determined by the laws of Connecti- cut. It will be noticed that the only effect of holding the requests invalid would be to render the bequest ab- solute. § 539. Despard v. Churchill® (1873). Here a testator domiciled in California bequeathed certain personal property situated in New York by provisions invalid un- der the New York law relating to perpetuities. On a suit here for construction of the will, it was held that ‘as this sovereignty will not uphold a devise or a be- quest by one of its citizens in contravention of that pol- 134 .N. Y. 584. 243 N. Y. 308 (387-8). 353 N. Y. 192. The property in question consisted of two leasehold es- tates for years, which were here held to be subject to the rules regulating the disposition of personal property. Id. 199. 300 CONFLICT OF LAWS. (CH. XII. icy (concerning suspension), it will not give its direct aid to sustain, enforce or administer here such a devise or bequest made by a citizen of another sovereignty. Yet it is no part of the policy of this State to interdict per- petuities or accumulations in another State.” “As has been stated, the courts of this State may not directly aid in carrying out here a bequest which is in violation of its statute law, and contrary to a policy of which it is tenacious. And yet they may not hold the bequest void when it is valid by the law of the State by which the disposition of the property is to be governed. The one would be to transgress the written law of this State; the other would be to disregard an unwritten rule of law, well settled, and of extensive and frequent appli- cation.” ‘The assets here should be remitted to the State of California, to be distributed in accordance with the law there.” § 540. Cross v. U. S. Trust Co.' (1890). In this case testatrix was domiciled in Rhode Island. Her will was made there, and was valid under the laws of that State. Certain trusts of personal property cre- ated by the will were void under the laws of New York. The fund in question was in possession of a trust com- pany chartered and doing business in New York. O’Brien, J., at special term, lays down the general proposition that the law of testator’s domicil governs in the disposition of personal property, and then exam- ines the application of this rule in the light of Chamberlain v. Chamberlain.? In his opinion the decision in that case, as interpreted by subsequent cases, must be con- fined in its application to the exact determination by the Court of Appeals; that the questions actually in- 125 Abb. N.C. 166; 10 N. Y. Supp. 781. 543 .N, Y. 424, § 541. ] CONFLICT OF LAWS. 301 volved were first, charitable bequests, and secondly, the capacity of the legatee to take; that the sufficient reason for holding, on the first of these points, that the law of the domicil of the legatee should govern, was the jealousy with which charitable bequests are watched by the State within whose boundaries they are to be administered ; and that the reason for holding, on the second point, that the law of the domicil of the legatee must govern, was that it is necessarily by the laws of his or its own domicil that the capacity of a legatee to take must be determined.’ § 541. As illustrating the supremacy of the law of the legatee’s domicil, in bequests for charity, in de- termining the capacity of the legatee and the gen- eral validity of the trust gift, Judge O’Brien cites, in addition to Manice v. Manice, already referred to,? the cases of Draper v. Harvard College,* and Mapes v. American Hone Missionary Society,‘ and holds that ‘this rule, peculiarly applicable to charitable bequests to individuals with capacity to take, fails [in the ca:e in hand] because the reason and the foundation upon which the rule itself is supported are wanting.” It is held, therefore, that the law of the testator’s domicil should govern, since, as said by the court in Des- pard vy. Churchill, “it is no part of the policy of this State to interdict perpetuities or accumulations in another State ;” and while the courts of this State will not directly aid in carrying out here a bequest which is in violation of its statute law, ‘‘the proper course ' Kennedy o. Town of Palmer, 1 T. & C. 581; Matter of Huss, 126 N.. Y. 587. 2 Ante, § 588. 357 How. Pr. 269. 4 33 Hun, 360. 5 Ante, § 539. 302 CONFLICT OF LAWS. [cu. XI. for the court to here take is to refuse to assume ju- risdiction, and to remit the property, and, if needs be, the persons, to the Rhode Island courts, to the end that the law of the testator’s domicil may be applied in de- termining the validity of the will as a means of trans- mitting property, and to the construction of the instru- ment itself.” ¥ 542. In connection with all the cases above re- ferred to, it is still further to be noticed that the law of the testator’s domicil, and the law of the legatee’s domicil. are not necessarily the only ones to be consid- ered. For the testator may be domiciled in one State and the legatee in another, while the property, by the terms of the will, is to be transferred to, and the trust administered or the perpetuity maintained in, a third. If in such a case the designation of the third State were an essential part of the testator’s scheme, it would ap- pear, from the reasoning of the opinion in Cross v. U. S. Trust Co., that the validity of the provision, at least if it involved a gift for charitable purposes, should be judged by the law of the State where the charity was of necessity to be administered. APPENDIX. I. SusPENsION FoR Two Lives In BEING. 1. Michigan. 2. Minnesota. 8. Wisconsin. II. Suspensron ror Lives 1n BEIna. . California. . Idaho. . Indiana. Iowa. . Kentucky. . North Dakota. . South Dakota. IAN wwe I. Suspension for Two Lives in Being.' § 543. Attention has already been called, in the fore- going pages, to the provisions of the statutes concerning suspension in Michigan, Minnesota and Wisconsin.’ For the sake of clearness a statement is here given of the chief points of difference between the laws of these States and of New York. 1. Michigan. § 544, (1.) The statute enumerates five purposes for which express trusts in land may be created. The first three classes are the same as in New York. The fourth and fifth are as follows: ‘“‘4, To receive the rents and profits of lands, and to accumulate the same for the benefit of any married 1 And a further minorty in certain cases. 2 See also the Preface. 304 APPENDIX. woman, or for either of the purposes and within the limits prescribed in the preceding chapter. ‘5. For the beneficial interest of any person or per- sons, when such trust is fully expressed and clearly de- fined upon the face of the instrument creating it, sub- ject to the limitations as to time prescribed in this. title.” ? (2.) The statutes concerning suspensions and trusts apply to real property only, and not to personal prop- erty? (3.) There is practically no restriction on the pur- poses for which a trust of real estate may be created. 2. Minnesota. § 545. (1.) The statute enumerates five purposes for which express trusts may be created. The first four are the same as in New York. The fifth is as follows: “Fifth. To receive and take charge of any money, stocks, bonds, or valuable chattels of any kind, and to invest and loan the same for the benefit of the benefi- ciaries of such express trust,” with some further provis- ions concerning administration.’ (2.) As to the law concerning gifts to charitable cor- porations consult Trustees v. Froisbie® and Little v. Will- ford,’ and notice the change ia the statute from its orig- inal form. * Mich. G. 8. § 5573. See Toms v. Williams, 41 Mich. 552 (569). * Toms »v. Williams, 41 Mich. 552 (569). As to what law governs, in case ot personal property, see Palms v. Palms, 68 Mich. 355, and compare De- Wolf ». Lawson, 61 Wis. 469 (474); Webster v. Morris, 66 Wis. 366 (382 et seq.) 3 Toms v. Williams, 41 Mich. 552 (569). ‘ Minn. G. 8. § 4013. As to what law governs in case of personal prop- erty, compare DeWolf ». Lawson, 61 Wis. 469 (474); Webster 0. Morris, 66. ‘Wis 8€6 (382 e¢ seg.); Palms v. Palms, 68 Mich. 355. > 37 Minn. 447. ° 31 Minn, 178. § 546.] SUSPENSION FOR TWO LIVES. 305 3. Wisconsin. § 546. (1.) The statutes provide that ‘““The absolute power of alienation shall not be sus- pended, by any limitation or condition whatever, for a longer period than during the continuance of two lives in being at the creation of the estate and twenty-one years thereafter,’ except when real estate is given, granted or devised to literary or charitable corpora- tions which shall have been organized under the laws of this State for their sole use and benefit, and except also in the single case mentioned in the next section.’ After making provisions for accumulations during minority, in two classes, as in the New York statutes, they add: “3. For the sole benefit of a literary or charitable corporation, which shall have been organized under the laws of this State, but such accumulation must termi- nate upon the expiration of twenty-one years from the time when the same shall be directed to commence.’”* They enumerate six purposes for which express trusts may be created. The first three are the same as in New York. The fourth, fifth and sixth are as fol- lows: “4, To receive the rents and profits of lands, and to accumulate the same for the benefit of any married woman, or for any of the purposes and within the limits prescribed in the preceding chapter. ‘5, For the beneficial interest of any person or per- sons, when such trust is fully expressed and clearly de- fined upon the face of the instrument creating it, sub- ject to the limitations, as to the time and the excep- 1 The words “and twenty-one years thereafter” were added by the Act of 1887. 2 Wis. A. S. $§ 2039, 2940. 3 Wis. A. 8. § 2061. 20 306 APPENDIX. tions thereto, relating to literary and charitable cor- porations, prescribed in this title.’ “6, For perpetually keeping in repair and preserv- ing any tomb, monument or gravestone, or any ceme- tery, to an amount not exceeding two thousand dollars; and any cemetery company, association or corporation ‘is authorized to receive money or property to the amount aforesaid, in trust for the purpose aforesaid, and to apply the income thereof to the purposes of the trust.’ (2.) The statutes concerning suspensions and trusts apply to real property only, and not to personal prop- erty? (3.) The law of charitable uses and trusts is very dif- ferent trom that of New York. Bequests to charity may be made to corporations yet to be organized, and in the meantime may vest in executors or trustees, or trustees appointed by the court.‘ II. Suspension for Lives in Being.§ § 547. The following States have adopted statutes dealing, like those of New York, with ‘‘ suspension of ‘For the scope of this provision, see Goodrich ». Milwaukee, 24 Wis. 422. 2 Wis. A. 8. § 2081. 3 Dodge v. Williams, 46 Wis. 70 (95) ; DeWolf ». Lawson, 61 Wis. 469; Webster v. Morris, 66 Wis. 366 (382); whether as to personal property there is no law of perpetuities, or the law of England still governs, see De- Wolf v. Lawson, 61 Wis. 469 (474); Webster v. Morris, 66 Wis. 866 (882 et seg.); Ford v. Ford, 70 Wis. 19. * Dodge v. Williams, 46 Wis. 70 (100 ef seg.); Gould ». The Taylor Or- phan Asylum, 46 Wis. 106; Webster v. Morris, 66 Wis. at 394 et seg. The statute excepts charitable and literary corporations from the prohibition against suspension beyond two lives. Wis. A. 8. § 2039. It is held that this statutory provision is inapplicable to religious corporations. DeWolf o. Lawson, 61 Wis. 469; Webster v. Morris, 66 Wis. 366 (882), And see A. 8. § 2000; 73 Wis. 257. ® And a further period in certain cases. § 549.] SUSPENSION FOR LIVES IN BEING. 307 the power of alienation,” but not restricting the num- ber of lives.’ The statutory provisions on this subject are given below. 1. California. § 548. Of the following provisions, §§ 715 and 716 appear under the general heading ‘‘ Property in Gene- ral,”’ and §§ 771 and 772 under the heading “‘ Estates in Real Property.” § 549. ‘“The absolute power of alienation cannot be suspended by any limitation or condition whatever, for a longer period than during the continuance of the lives of persons in being at the creation of the limitation or condition, except in the single case mentioned in section seven hundred and seventy-two.* “ Every future interest is void in its creation which, by any possibility, may suspend the absolute power of alienation for a longer period than is prescribed in this chapter. Such power of alienation is suspended when there are no persons in being by whom an absolute in- terest in possession can be conveyed.’® ““The suspension of all power to alienate the subject of a trust, other than a power to exchange it for other property to be held upon the same trust, or to sell it and re-invest tbe proceeds to be held upon the same trust, is a suspension of the power of alienation within the meaning of section seven hundred and fifteen.’ “A contingent remainder in fee may be created on a prior remainder in fee, to take effect in the event that the persons to whom the first remainder is limited die 1 See Preface. 3 Civil Code (Deering’s Ed. 1887), 715. 21d. § 716. 41d. § 771. 308 APPENDIX. under the age of twenty-one years, or upon any other contingency by which the estate of such persons may be determined before they attain majority.’ 2. Idaho. § 550. Of the following provisions, § 2836 is found under the heading “ Property and Ownership, General Provisions,” and § 2851 under the beading ‘‘ Estates in Real Property.” “The absolute power of alienation cannot be sus- pended by any limitation or condition whatever, for a longer period than during the continuance of the lives oft persons in being at the creation of the limitation or condition, except in the single case of [a] contingent remainder in fee authorized in section two thousand eight hundred and fifty-one.’” ‘“A contingent remainder in fee may be created on a prior remaindor in fee, to take effect in the event that the persons to whom the first remainder is limited die under the age of twenty-one years, or upon any other contingency by which the estate of such persons may be determined before they attain majority.’® 3. Indiana. § 551. ‘The absolute power of aliening lands shall not be suspended by any limitation or condition what- ever, contained in any grant, conveyance or devise, for a longer period than during the existence of a life or any number of lives in being at the creation of the es- tate conveyed, granted, devised, and therein specified, 1 Civil Code, § 772. 1 R. S, (Ed. 1887), § 2826. 8 Id. § 2851. § 553.) SUSPENSION FOR LIVES IN BEING. 309 with the exception that a contingent remainder in fee may be created on a prior remainder in fee, to take ef- fect in the event that the person or persons to whom the first remainder is limited shall die under the age of twenty-one years, or upon any other contingency by which the estate of such person or persons may be de- termined before they attain their full age.”* ‘‘Where a remainder for life shall be limited on any other than a life or lives in being at the creation of such estate, and [sic] the life estates subsequent to those persons entitled to take life estates according to the provisions of the last preceding section, shall be void, and upon the death of those persons entitled to take, the remainder shall take effect in the same man- ner as if such void estates had not been created.” ? The absolute ownership of personal property may be suspended for lives in being? 4. Iowa. § 552. “Every disposition of property is void which suspends the absolute power of controlling the same for a longer period than during the lives of persons then in being, and for twenty-one years thereafter.” ‘ 5. Kentucky. § 553. “The absolute power of alienation shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance of a 12.98. (Ed. E. B. Myers & Co., 1888), § 2962. ° Id. § 2968. 5° Td. § 6057. 4 McClain’s Annotated Code (Ed. 1888), § 3091. 310 APPENDIX. life or lives in being at the creation of the estate and twenty-one years and ten months thereafter.” * 6. North Dakota. § 554. The law of North Dakota on the subject of - suspension is found in the following provisions of the Compiled Laws of Dakota Territory. §§ 2717, 2718 are found under the head of ‘‘ Property in General,” and 8§ 2744, 2745 under the head of ‘Estates in Real Property.” ““The absolute power of alienation cannot be sus- pended by any limitation or condition whatever, for a longer period than during the continuance of the lives of persons in being at the creation of the limitation or condition, except in the single case mentioned in § 2745.? ‘Every future interest is voidin its creation, which, by any possibility, may suspend the absolute power of alienation for a longer period than is prescribed in this chapter. Such power of alienation is suspended when there are no persons in being by whom an absolute in- terest in possession can be conveyed.” ® ‘‘A contingent remainder in fee may be created on a prior remainder in fee, to take effect in the event that the persons to whom the first remainder is limited die under the age of twenty-one years, or upon any other contingency by which the estate of such persons may be determined before they attain majority.” * ‘The suspension of all power to alienate the sub- ject of.a trust, other than a power to exchange it for 1G. 8. Chap. 63, Art. 1, § 27. * Compiled Laws (Ed. 1887), § 2717. 3 Td. § 2718. 41d. § 2745. § 555.] SUSPENSION FOR LIVES IN BEING. 311 other property to be held upon the same trust, or to sell it and re-invest the proceeds to be held upon the trust, is a suspension of the power of alienation within the meaning of § 2717.” 7. South Dakota. § 555. The law of South Dakota on the subject of suspension, like that of North Dakota, is found in the provisions of the Compiled Laws of Dakota ‘Territory, already quoted ante, § 554. 1 Compiled Laws, § 2744. INDEX. (The references are to sections.) ABSOLUTE FEE, Ses Assoturz Power or Disposition; Es- rates; Fre; Fee Sivpru; Restraints on Use; Restrictions on ALIENATION; SusPENSION or PowER or ALIENATION. meaning, 9, 513. same as indefeasible fee, 64 e¢ seq. repugnant restrictions, how far good, 513 note. when result from power in trust, 283. ABSOLUTE POWER OF DISPOSITION, 513 note. when implies fee, 513 note. ABSOLUTE VESTING. Ses Vzustep; Dersasiste; ContTineEn- CIES, ACCELERATION. ' of remainder, when, 821-323. ACCUMULATION. Ssz Benerictary; Express Trusts. I. Or Rents anv Prorits or Lanp, 252-276, 1, In General. one of the express trusts, 144. how directed, 253. will or deed, 253. statutory provisions, 252, 254, 255. purposes and limits, 2.:2. implied direction to accumulate, when, 273. implied from future legacies, when, 273. disposition of corpus, 260. where rents undisposed of, result, 275. rights of infants to use of rents, 276. foreign accumulation not forbidden, 530, 541. 2. When must begin, must begin during minority, 254, 256, 257, 258. and within time allowed for vesting, 254, 256. either at creation of estate or later, 254, 256. See Creation or Estate. 314 INDEX. [The references are to sections.] ACCUMULATION.—continued. for child yet unborn, 257, in what cases permitted, 257. for successive infants, 260. postponement of beginning ; limits, 258. 3. For whom. only for sole benefit of infant, 254, 259, 260. limitations over of principal, 259. accumulation after two lives, when, 259. successive accumulations, 260. how measured, 260. 4, Duration. statutory provisions, 261, illegal measures of, 263. when after two lives, vesting of corpus, 261. measured by two lives and also by minority, 261. not for fixed period, 261. nor for unmeasured term, 261. term how measured, 254, 255, 262. further term, when, 178 note 3, 255. 5. End of Term. at majority, 262. if for longer term, excess void, 254, 262, contingent disposition of principal, 263. 6, Ownership of Accumulation, 263. in case of death during infancy, 263. two theories, 263. first theory, defeasible vesting, 264-8. second theory, absolute vesting, 269-272, 7. Effect on Suspension. See Suspension or Power, &c. to pay lump sum legacy, no suspension, 274. to restore depleted capital, no suspension, 274. adding royalties to capital, no suspension, 252 note 7. II. Or Income or Personat Property. statutory provisions, 430. accumulation only as specified, 480. when must begin, 431. duration, how regulated, 433. after two lives not allowed, 259. relation of in realty and personalty, 433. INDBPX. 315 [The references are to sections.] ACCU MULATION.—continued. where income undisposed of, result, 434, ALIENABILITY. See Asstenment; Dervisasiuity; Expectant Estates; Reuse, of fee, how long suspended, 1. of annuity, 135, 138. rule concerning, scope, 1, 2, 61. relation to vesting, 2, 61. what estates are alienable, 69-79. estates vested in possession, 70, in what sense, although defeasible, 71. may be conveyed absolutely, 71. contingent estate may be inalienable, 71, 124, where vested, yet inalienable, 70 note 1. persons unascertained, inalienable, 77, 127. only event uncertain, alienable, 77, 79, 124-126. ascertained persons may convey or release, 77, 124, 125. and thus cut off grantor and heirs, 77. all vested estates and rights themselves alienable, 79. does not necessitate vesting, 61. but is involved in vesting, 61. except in certain trusts, 61. all vested estates alienable, in what sense true, 61 note 2. union of all interests to convey fee, 64, 147. vested in interest in class subject to open, 72 note 2. of expectant estates, 19. unless persons unascertained, 77. ALTERNATIVE DISPOSITIONS. See Szparastiity. contingencies with double aspect, 483-499. (1.) Simple alternative Contingencies, 483. how far covered by statute, 483. sustaining good, though other void, 483. validity depends on future event, 483. thus is an exception to the general rule, 483. exception only apparent, 483, one contingency must be valid, 483. for general rule, see Lives 1: Barna, I. (2.) Involved alternative contingencies, 484-494. class deseribed, 484. one contingency involved in another, 484, 316 INDEX. [The references are to sections. ] ALTERNATIVE DISPOSITIONS.—condinued. (3.) the first may be too remote, 484. the second, if it happens, valid, 484. if it happens, the first must also happen, 484. and simultaneously, 484. but the second may or may not happen, 484. if testator provides for both events, 484. if he does, gift may be “split,” 485, 486. and be good if second happens, 485. but void if second does not happen, 485. if testator provides merely for remote event, 485. course then pursued by court, 485. English rule, court will not split gift, 486. discussion of principle of “splitting,” 487-494. illustrations, where split and where not, 488-493. splitting defined, 489. question of words, not intent, when, 489. New York illustration, 492. “splitting” by testator, 492. English rule applies only where gift not a “ remain- der,” 493. applies only where gift is an executory devise, 493. where “ remainder” exception to rule, 493. court will split, if “ remainder,” 493. rule and exception not elaborated in New York, 494, how far same distinction probable in New. York, 494, Contingencies with alternative application, 495-499. this class described, 497. one valid contingency will certainly happen, 497. uncertainty is as to share affected, 497, two groups of cases, 495-499. in one, uncertainty must cease in two lives, 496-498. and valid share then be determined, 498. in this case, limitation good, 498. in the other, may outlast two lives, 852, 499. here, limitations void as to all, 352, 499. distinction and rule stated, 499. INDEX. 317 [The references are to sections.] ANNUITIES. See Gross Sum; Income; Legacy; Express Trusts (5) (a). annuities and income, distinction, 283, 245. importance of distinction, 233. legacies and annuities, distinction, 144 note 2, 234, 245. distinction between gross sum, and rents as such, 235- 245. annuities under second trust, 144 note 3, 233. cause no suspension, 233, distinguished from right to income, 233-245. viewed as legacy, when, 234. viewed as application of rents, 234. payable from rents and profits, 237. charged on land, 185. may lead to forced sale, 135. may be purchased with lump sum, 135, alienable, 135, 138. releasable, 241. assignable, 235, 238, 239, 240. when charged on gift to charity, 458. See Cuariry, APPLY. word not essential to create trust of third class, 250. various substitutes for “apply,” 250. ASSETS. remission to other jurisdiction. See Conruicr or Laws, ASSIGNABILITY. See Assienmenr; Devisasttiry; Exprcorant Estates; RELEASE. of annuity, 235, 238-240. by beneficiary, of right to accumulation, 163. not required if right is releasable, 64. by beneficiary, obviates suspension, 147. ASSIGNMENT, See Assrenasmiry. general, for creditors, 248. under what class of trusts, 248. termination of, when presumed, 159 note 3, special, 144 note 2. attempted, of right of entry, destroys it, 133. 318 INDEX. [The references are to sections.] ASSOCIATIONS. See Corporation; Cuarity; Miontean; Mrw- NESOTA; WISCONSIN. benevolent, charitable, literary, missionary, 461. religious, scientific, 461. devise or bequest to, proportion, 461. will must be executed when, 463. BASE FEE, 4. See Fru. i BENEFICIAL POWER. See Powsr 1n Trust (2). BENEFICIARY. See Accumuration; Birra; Express Trvsr. unauthorized receipt of rents by grantor, effect on, 159. has no estate or interest in land, 163, 204. and trustee same person, 166-169. See Trusrez anD BENEFICIARY. title in, can convey in spite of power in another, 284, 285. title in, no suspension when, 288-294. may enforce execution of trust, 1638, 204. cannot assign his interest, 146, 163. cannot charge future income, 163 note 4. “no right to principal or interest,” effect of, 164. mutual relations of beneficiaries, 390. for life, power to grant or devise remainder, 164. and remainderman, distinct, 144. no limit to number of, 230, 245. not in being at creation of trust, 230. See Unporn Cui. must. become ascertained, when, 230. interest, when must end, term, 230. use may shift during term, 280. indefiniteness of, 458, corporation, how far a “ person,” 230 note 1. death of beneficiary ends trust, when, 158. BENEVOLENT SOCIETIES, Ero. See Cuarity; Corpora- tion; Micuigan; Minnesota; Wisconsin. devise of one-half estate to, 461. will must be executed, when, 463. BEQUEST. when forbidden by law. See Conruicr or Laws, II. for foreign use. See Conrriict or Laws, II. by what law governed, 526, 588, 541. trust may be created by, 428, INDEX. 319 [The references are to sections. ] BIRTH. See Gestation; Posraumous Cainp; CxiLpBEaRING; Unsorn Cup; Buyzriciary. ‘CALIFORNIA. lives in being, 547, statutory provisions, 548, 549. CAPACITY. of testator and legatee. See Conruiot or Laws, CAPITAL, depleted, accumulation to restore, no suspension, 274. CEMETERY. perpetual fund to maintain void, 428 note 4. CESTUI QUE TRUST. See areas CHARGE. on land. See Annvuitiss. on gift to charity, 458, See Cuariry, on future income, by beneficiary, 163 note 4. CHARITY, GIFTS TO. See Cuaprzr VIII; Assocrations; Con- riict oF Laws; Corporation; Micuiean; Muinwne- sota; Wisconsin. (1.) In General. English law of charitable uses not in N. Y., 442. no doctrine of cy pres, 442 note. N. Y. doctrine of gifts to charity,* 443, 444, 448-450, here, charitable corporations, 444. with statutory authority to hold property, 444. perpetual, must be to corporation, 444. not to private trustees, 444. statute concerning devise to corporation, 443 note 2, statute covers both estates and trusts, 443 note 2, and applies to receipt of rents, 443 note 2. statute does not cover proceeds of sale, 448 note 2. power to take by grant, devise, bequest, 444 note 2. gift to foreign community, 444 note 2, gifts may be present or future, 445. corporation may take to authorized limit, 450. but not beyond, 450. * See, also, Booth v. Bapt. Church, 126 N. Y. 215. 320 INDEX. [The references are to sections.] CHARITY, GIFTS TO,—continued. (2.) (3.) if not to corporation, general rules apply, 450. if land, void; reason, 450, if personalty, not good beyond two lives, 450. reason, 450. “taking” and “holding,” relation between, 450 note. one corporation may hold for another, 451. but only if purposes alike, 451. where purposes dissimilar, result, 452. validity of trusts for charity, 450 note 5, by what rules governed, 450 note 5 State or nation as devisee, 450 note 2. exceptions to N. Y. system, 450 note 8. legislature may create such, 450 note 8. and allow gifts to unchartered bodies, 450 note 8. as the Shaker trusts, 450 note 8. or gifts to religious societies, 450 note 8. or to unchartered churches in Albany, &c., 450 note. Period after vesting. does gift to charity create “ suspension,” 446-449, affirmative, 447. negative, 448, 449, distinction between perpetuity and mortmain, 448. nature of charitable corporation explained, 448, 449. nature of its ownership, 449. Period before vesting. if to unchartered body, when good, 453. cannot vest until incorporation, 453. if that must occur in statutory period, good, 454. if it may not, void, 453.* the legislature might charter two, 453 note 4. this possibility disregarded, 453 note 4. where testator directs special incorporation, 455.* then incorporation under general law impossible, 455.. even to save the gift, 455, how required certainty secured, 456, what provisions requisite, 456. immediate gift, no incorporation, void, 457. incorporation must precede vesting, 457. * See foot note, page 319. INDEX. 321 (The references are to sections.] CHARITY, GIFTS TO.—continued. (4.) Gifts on condition, when good, 458. repugnant conditions, &., void, 458. subject to remote defeasance, result, 458. (5.) Gifts to officers. where intent to give to corporation, 459, intent prevails, 459, (6.) Limitation on amount. bequest or legacy, only one-half, when, 461. one-half, how estimated, 462. (7.) Two months provision, will executed, how long before death, 463. what corporations affected, 463. CHATTEL INTERESTS. See Wit, Estate ar; Surrerance, Estate ar, CHATTELS REAL, See Yzars, Estate ror. remainder of, on term for years, 12. suspension in, 1 R. 8. 724, § 23. CHILD. See Postuumous Cuitpren: Younexst or Exprst Curip. of testator, legacy or devise to, 508. when does not lapse, 508. CHILDBEARING. See Postaumous Cumtpren; Gestation; Un- BORN CHILD. when capacity presumed, 514, CHURCH. gifts to. See Cuariry. CIVIL DEATH. how affects limitations over on “ death,” 502 note. CLASS. See Tenanoy.. vested in, subject to open, 72 note 2. devise to, 58. COMMUNITY. See Forster Commoniry. CONDITION. See Contincencrzs. precedent or subsequent, 53. every is both precedent and subsequent, 71. preach of. See Rigut or Enrry. CONDITIONAL LIMITATION. remote, instead of condition, result, 315 note 1. 21 322 INDEX. [The references are to sections.] CONFLICT OF LAWS. I. Reat Property. rule, 516. illustrations, 517-522. when transfer inter vivos, 516 note. II. Persona Property. rule, 523. illustrations, 524-542. (1.) Law of testator’s domicil, 525. controls in formal requisites, 525, 536, 537, 541. and in construction of instrument, 525, 541. and as to capacity of testator, 525, where given bequests forbidden, 528, 533. where testator’s capacity limited, 528. effect of general policy, 529. bequest to executors for foreign use, 535, 537. how far governs in charities, 540. where trust not charitable, 541. (2.) Law of legatee’s domicil, controls validity of particular bequests, 526, 538, 541. capacity of legatee, 527, 540, 541. effect of general policy, 529. how far governs charities and trusts, 53], 532, 540. (3.) Law where property situated. may prevent aid of court to a bequest, 539. but not render bequest void, 539. does not forbid foreign perpetuity, 530, 541. nor foreign gifts in mortmain, 530. nor foreign accumulation, 541. assets remitted to place where administered, 539. assets and persons remitted to testator’s domicil, 541 (4.) Law where property administered, validity of particular bequests, 526. effect of general policy, 529, when controls, 531, 532. when property remitted to, 589, 542. CONSTRUCTION. See Conricr or Laws. where gift void if vested, 421, in such case courts favor contingent, 421, words “if” or “upon,” 422, indications of future vesting, 423, INDEX. 323 (The references are to sections.] CONSTRUCTION .—continued, statute on suspension disregarded, when, 515. when subordinated to other rule, 515, instrument should be sustained if possible, 178, 223, 515. duty of court to sustain, 178, 223, conditions precedent or subsequent, 54 note 2, of word “heirs,” 32 note. COTENANCY. See Tenancy. CONTINGENCIES, precedent or subsequent, 53. no phraseology to distinguish, 54. distinction, how determined, 54 and note 2. influence of intent, 54. illustrations of each class, 54 note 2, 57. precedent, defined, 54. subsequent, defined, 54, 55, how affect precedent estate, 55. each is precedent and subsequent, 56, subsequent not favored, 54 note 2. where clearly subsequent, 54 note 2, how construed if doubtful, 54 note 2. intent overrides strong forms, 54 note 2. death without issue, subsequent, 57. limitations, subsequent, 57. rights of entry, subsequent, 57. may wholly divest, 57. or only partly, 58. alternative contingencies. See Aurernative Disposirions. CONTINGENT. meaning in personalty not same as in realty, 389. CONTINGENT ESTATES. See Auienapiity; Exprcranr Es- tates; REMAINDERS; VESTED. Two Classes: 1. Person unascertained, 74, ‘77. 2, Person ascertained, 15, 76, 77,79. subject to open, when, 60 note. CONTRACTS. capable of specific enforcement, 137. may involve remote devolution, 137, may always be released, 137. no suspension, 64, 137, 324 INDEX. [The references are to sections,] CONTRAVENTION OF TRUSTS. sales in, forbidden, 146, 165. contravention or not, how determined, 146 note. if sale directed, not in contravention, 165 note 1. CONVENIENCE. See Suspension or Apsotute OwnersuiP (2). as excuse for delay in conversion, 473. convenience of estate, 409, 417, postponement of sale for three weeks, 114. postponement to advertise sale, 114. such delays, no suspension, 114. convenience of legatee, 408, 409, 417. CONVERSION. See Equrrasie Conversion. CONVEYANCE, See Aurenasmiry ; Assianapizity ; Inter Vivos. of contingent estate, 77. See Expecrant Esrares, by trustee at end of trust. See Posrponement or VEsT- ng (7). CORPORATION, See Cuanriry. future gift to, yet unchartered, 421. void unless contingent, 421. here courts favor contingent, 421. in what sense a “ person,” 230 note 1, CORPUS. of trust estate. See Accumunarioy, I (3), (5). accumulation to restore depleted, 274. COURT. See Conruict or Laws, may itself execute trust, when, 168. duty to sustain instrument, when, 178, 223, 515. cannot destroy trust, 160 note 4. COVENANTS. See Reservations. do not effect suspension, 139. CREATION OF THE ESTATE, See Accumutarioy, I (2); Id. Il; Lives in Berne; Statutory Periop, definition of term, 81, is time when validity is determined, 82. See Tesrator’s Dgatu. CREDITORS’ RIGHTS. (1.) Real Property. claim on principal or interest, 196. surplus income may be reached, 196. INDEX. 325 [The references are to sections.] CREDITORS’ RIGHTS.—continued. (2.) whether accrued or not, 196. under beneficial powers, 283. Personal Property. interests of beneficiaries inalienable, when, 196. by what statute rendered so, 196, 197. scope of principle applying real estate statutes to person- alty, 196, 197. CROSS-REMAINDERS. constitute successive life estates, 325, 348. See Lirz, Estars ror; Tenancy. described, 347. among tenants in common, 347. devolution of share on death, 347. survivors take share in common, 347. common law, repeated devolution of sub-share, 348. New York, only once in cross remainder, 348, 349. two life estates allowed for each share, 349. several co-tenants, each share two lives, 350. each share judged by itself, 350. where involved with illegal remainder, 351. CY PRES. doctrine of, not part of N, Y. law, 442 note 1. as to, in Wisconsin, 442 note 1. DEATH. (1.) (2.) In general. See Tzstator’s Deara; Crviu Data; Survivor- SHIP. future division, remainder over in case of death, 423. means before time for division, 423. at that time gift vests, 424-5. “ without issue,” condition subsequent, 57. Devise over, in case of, 502. either to “survivors” or substituted devisees, 502. death at what time, 502, 503. refers to death before testator, 502, 503. devise goes over only during testator’s life, 502, but contrary intent controls, 502. 326 INDEX. [The references are to sections. ] DEATH.—continued, and whether intent express or implied, 502. same meaning where “ death without issue,” 502, unless contrary intent, 502. so, also, where “death childless,” 502. effect given to natural import of words, 502. (8.) Devise over on “death without heirs,” 501. or on death “ without issue,” 501. See supra (1), (2). meaning of “heirs” and “issue” in these phrases, 501. mean, without heirs, etc., living at death of ancestor, 501, 508. otherwise at common law, 601. there they referred to failure at any time, 501. ‘indefinite failure of issue,” 501. history of this phrase, 501 note. if ancestor leaves heirs, result now, 501. common law, meaning reversed by intent, 501 note. “failure of issue,’ qualifications and distinctions, 501 note. DEBTS. See Crepirors’ Rieuts. trust to pay, 144. DECLARATION. : trust proved by, 150, 428. See Express Trusts (2). DEED. accumulation directed by, 253. trust created by, 149, 428. DEFAULT OF ISSUE. See Dearu. DEFEASIBLE. See Vusrep; Contincencrzs. by right of entry, 57, 58. other illustrations, 57-60. DEFERRED ENJOYMENT. See Posreonemenr or Possss- sion; SusPENSsION or OwNERSHIP. DEFERRED POSSESSION. See Posrponsment or Posssssron. DESCENDANT. of testator, legacy or devise to, no lapse, when, 508. DESCENT. of fee undevised, 4. of all expectant estates, 10, 61, 77, 129. INDEX. 327 [The references are to sections.] DESCENT,.—continued, of reversions, 129, when purpose of conversion fails, 477. distinction between, and purchase, 4. DEVISABILITY, See Devisz; Auienasmiry; Assianment; Re- LEASE; WILL, of all expectant estates, 10, 61, 77. of reversions, 129. DEVISE. trust may be created by, 149. to charity, will must be made when, 463, what proportion may be given, 461. over, in case of death. See Dzarn. to State or nation, 450 note 2. to testator’s child or descendant, no lapse, when, 508. DISCRETIONARY POWER. See Power in Trust. DISCRETION. as to time of sale, 246, 473. DISTRIBUTION. death before actual, 424, 425. See Furure Disrrisvrion. DIVISION, death before actual. See Futurs Distarsorion, of alternative gifts. See Aurernattve Dispositions. DOMICIL. See Conruict or Laws. DOUBLE ASPECT, contingencies with. See Aurernative Dispositions. DOUBLE CONVERSION. See Equrrastz Conversion. DYING WITHOUT ISSUE. See Dzaru. EASEMENTS. See Covenants, ELECTION. when effects reconversion, 286, 478. by widow, between will and dower, 160. by beneficiary, between will and inheritance, 160. ENJOYMENT. See Posrponzment or Posszsston; SusPEnsion or OwneERsHIP, ENTRY. See Rieu or Entry. 328 INDEX. [The references are to sections.] EQUITABLE CONVERSION. general principles, 470, 478. importance of doctrine, 470. defined, 471. leading principle, 472. either immediate or postponed, 472. when future, result in meantime, 472. when time for sale, conversion results, 472. and whether actual sale or not, 472. how property is regarded after, 472. how affects unborn child unprovided for, 472 note 4, time of sale left to discretion, 473. in such cases, converted when, 473. when delay merely for convenience, 473. “out and out ” conversion, 473, 474, 477. when for special purpose, result, 474. discretionary power does not convert, 475. conversion on actual sale, 475. imperative phraseology not conclusive, 475 note 1. conversion without express direction, 475. implied direction may suffice, 475. surplus not required for purpose specified, 475 note 2. by implication, what essential, 475. by implication, what sufficient, 475. imperative direction, from what implied, 476. where special purpose fails, 477, reconversion, when, 478. double conversion, 522. ESCHEAT. remote rights of State, 138, may always be released, 138. ESTATES. (1.) In General. which are alienable, 69-79, (2.) Of Freehold, 4. of inheritance. See Feu Simpre; Faz Tam; Quatiriep Fes, common law, 4, 5. statutory, 9. now fee simple, 9. INDEX. 329 [The references are to sections. ] ESTATES. —continued. for life. See Lirz, Esrare ror. common law, 4. statutory, 9. successive, 321, 322. as measure of trust, 333. severance of legal and illegal, 334. pur autre vie, 322, 335. (3) Less than freehold, for years. See Yuars, Esrarx For. common law, 4. statutory, 9. at will. See Wii, Esrares ar. common law, 4. statutory, 9. at (or by) sufferance. See Surrerance, Esratus ar. common law, 4. statutory, 9. (4.) In Possession, 10, See Possussion. (5.) In Expectancy. See Expucrant Estates, defined, 10. classified, 10. in reversion, 10. See Reversion. future, 10. See Fururs Esrares; Remarnper. defined, 10. classified, 10. when remainders, 10. vested, 10, 28-52, contingent, 10, 28-52, (6.) In Succession, 5. See Lirz, Esrarz ror. EXCHANGE OF PROPERTY. power to effect may not obviate suspension, 67. EXECUTOR. bequest to, for foreign charity, See Coyruict or Laws. EXECUTORY DEVISE. at common law, 7. no precedent estate required, 7, fee limited on fee, 7, before contingent, no freehold required, 7. 330 INDEX. (The references are to sections.] EXECUTORY DEVISE.—continued, superseded by future estates, 11. separation of legal from illegal. See Atrernative Dispo- sitions (2). EXPECTANT ESTATES. See Esrarszs. alienable, descendible and devisable, 10, 41, 61, 77, 79. exvept when persons unascertained, 77, 79. effect of failure of precedent estate, 11. how not barred or defeated, 11. all except the statutory, abolished, ] R. 8. 726, § 42. See Ruversioy, Estarz in; Future Estarss. EXPRESS TRUSTS. See Bznerictary; Trustse anp Bryerici- ARY, I. Reat Properry. (1.) In General. uses and trusts abolished, 145. whether trust express, test, 145 note 4. for what purposes allowed, 144, 231-276. if purpose illegal, result, 145. essential elements, 151. non-essentials, 152-156, 250. need not use word “ trustee,” 153. nor contain express gift to trustee, 154, nor use words “rents and profits,” 155. nor employ any set formula, 156. but rents must be given to trustee, 280. how effect suspension, 143, See Suspension or Power or ALIEnatIon. designation of beneficiary, 151 note 1. definiteness required, 151 note 1. precatory words may suffice to imply trust, 154 note 4. express trust may be implied, 157. but not if void, 157. rules governing implication, 157. where no express devise, and no necessity, no trust, 157. twe classes of trusts, 146. one class involves suspension, 146. the other class does not, 146. characteristics of each class, 146. sales in contravention forbidden, (46. INDEX. 331 [The references are to sections.] EXPRESS TRUSTS. — continued. only acts in contravention forbidden, 146 note. whether in contravention, 146 note. beneficiary forbidden by statute to assign, 146, 163. where same prohibition expressed in will, 164. trusts involving sale, no suspension, when, 147. so trusts permitting sale, 147. so where interest of beneficiary assignable, 147, for unauthorized purpose, 145. good as a power, when, 145. good trust, though power would suffice, 145 note 3. direct devise and secret trust, 146 note. trust to convey is express, 145 note 4, vesting of remainder under such a trust, 145 note 4. remainder after trust. See Posrponement or VEsTING, (7). when the statute vesting land, subject to power, unneces- sary, 145 note 4. trust estate may be a remainder, 163 note 1. void trust, title in beneficiary, 145 note 4. void trust, title in grantor, or heirs, 145 note 4. valid and void in same trust, separable when, 482. Creation of Trusts, created by will, 149. either in explicit terms, 149. or by implication, 149. created by deed, 149. created by parol, 150. proved by declaration, 150. nature of declaration, 159. essentials of declaration, 150. facts at creation of estate, determine validity, 82-87. Duration of Trusts. See Livus in Berne. Termination of Trusts. by express limitation, 158. as on death of beneficiary, 158. so on happening of contingency, 158. so by reserved power of revocation, 158. so at will of designated parties, 158 note 4. so on “interference” by beneficiary, 158. so at discretion of trustee, 158. 332 INDEX. [The references are to sections. ] EXPRESS TRUSTS,--continued. by failure of purpose, 159. period tor application of income measures duration, 159. wrongful receipt of rents by grantor does not end trust, 159. nor does death, resignation or removal of trustee, 159 note 3, unless so provided or implied, 159 note 38. nor unauthorized conveyance to beneficiary, 159 note 3. when failure of purpose presumed, 159 note 3, by failure of essential feature, 160. court cannot destroy trust, 160 note 4. not even on petition of trustee and beneficiary, 160 note 4. general assignment, presumption of failure, when, 159 note 3, (5.) The four classes of trusts, 144, 231-276. (a.) First and second class, 231-248. trusts merely to sell, not necessarily suspension, 146, 147, 232, may involve suspension, 232. as, future sale, payment to trustee, 232. sale must be primary purpose, 144 note 2, 246. power to sell must be absolute and imperative, 246. discretion as to time and manner of sale, 246. sale, proceeds to grantor, void, 246 note 2. “benefit of legatees,” meaning, 247, what mortgages not for “ benefit,” 247. general assignments belong to first class, 144 note 2, 248, annuities under second class, 144 note 3, 233. special assignments, 144 note 2. (4.) Third class, 249-251. occasion suspension, 70 note 3, 146, 233, 235. to apply “rents” as such, 245. period for application, measures duration, 159. word “apply” not essential, 250. “pay over” is valid, 250, “manage and dispose of” valid, 250. so, that beneficiary shall ‘ receive,” 250. or, that income be “ used” for him, 250. beneficiary to “ have and take,” invalid, 250. INDEX. 333 [The references are to sections.] EXPRESS TRUSTS.—continued. various substitutés for “ apply,” 250. what phrases insufficient, 250. to “apply what is needed,” good, 251. may be several beneficiaries, 245. leases by trustee, 251 note 6, payment of specific sum, 245, (c.) Fourth class, See Acéumutations, (6.) Remainder after Trust, See Posrponement or Vestine (7). (7.) Reversion after Trust. See Postponement or Vustine (7). II, Persona Prorerty, See Suspension or Ownersuip (3). FAILURE OF ISSUE. See Dzarn. FEE. See Assorure Fee; Auienasiity; Esrarzs; Fre Simpze; Fer Tait. common law, no remainder after, 5. fee in one, power to convey in another, 278 note 1. limited on fee, 12, 336-343. See PosrponeMENtT or Vestine (4). base fee, 4. qualified fee, 4. implied by absolute power of disposition. See AssoLuTe Power or Disposition. FEE SIMPLE. See Cross References under Fas. at common law, defined, 4. statutory, defined, 9. power of tenant over fee, 4. FEE TAIL, See Estarss. at common law, 4, 506. phraseology requisite to create, 506 note 2, abolished, 504, 505. remainder after, how vests, 505. remainder after at common law, 506. statute covers remainders in fee tail, 504 note. FIXED PERIOD. not allowed for term of suspension, 90, 261. FOREIGN COMMUNITY. when may take under N. Y. will, 444 note 2. FOREIGN CORPORATIONS.. when may take under N. Y. will, 444 note 2. 334 INDEX. \ (The references are to sections.] FOREIGN LAW. See Conriict or Laws; Forsien Corpora- TIONS; CHARITY. FREEHOLD. See Esrarss. remainder of, on term of years, 12, 319. FUTURE DISTRIBUTION. means the time fixed for it, 424, 425. at that time gift vests, 424, 425, 512, though actual division or distribution delayed, 424-5, 512. but intent governs, 125. FUTURE DIVISION. See Fururs Disrrisution. FUTURE ESTATES. See Esrarzs, include executory devises, 11. remainders, 11, precedent estate not necessary, 11. replace springing and shifting uses, 11. either vested, 10, 29-52. or contingent, 10, 28-52. are expectant estates, 10, See Exezcrant Esrarss. FUTURE SALE, proceeds to a trustee, suspension, 297. GENERAL ASSIGNMENTS. belong to first class of trusts, 144 note 2, 248. GESTATION. See Cuitpszarine; PostHumous Curtpren; Un- BoRN CHILD. period of. See Abb. N. Y. Digest, Vor. I, p. 549. GIFT. See Suspension or Ownersure; Personat Property. alternative. See Atrernative Disposrrions. contingent preferred by court, when, 421. immediate, though payment postponed, 388-423. GROSS SUM. legacy is, 285, assignable, 147, 235, 242. releasable, 242. single payment, 243, in several payments, 243. trust to pay, no suspension, 147, distinction between, and rents, 235-245. INDEX. 335 (The references are to sections.] HEIRS, See Daars. not of living person, 82, of living person, when, 32 note. construction in wills and deeds, 32 note. intent in using word, 32, of person deceased, 37 note 2. of living person, postponement, 37 note 2. HUSBAND. See Wirz; Winow. IDAHO. lives in being, 547. statutory provisions, 550. “TF EVER.” See Posrponement or Vestine. meaning of phrase, 317. IMPERATIVE POWER. See Power in Trust, in trusts to sell, 246. IMPLICATION, See Invent. of fee. See Assoture Power or Disposition, of direction to convert, 475. of express trust, 149, 157. of suspension. See Herrs. of direction to accumulate, 273. IMPROVIDENT PERSON. trust for, 242. INCOME. undisposed of, 484. See Rents. distinguished from annuity, 233-245. INDEFINITE FAILURE OF ISSUE. See Dearn. INDEFINITENESS. See Benerictary, INDIANA. lives in being, 547, statutory provisions, 551. INFANTS, See Minority; Unsorn Cuitp; Gzstation; Posr- HUMOUS CHILDREN. trust for, 242. use of accumulating income, 276, accumulation, only for, 254, 259, 260. See AccumuLatTIon. 336 INDEX. [The references are to sections. ] INFANCY. mere, does not create suspension, when, 116. INTENT. See Impricarion. to make contingency precedent or subsequent, 53, 54. in phrase “death without issue.” See Dears. in cases of death before distribution, 425, in “survivorship,” 426, 502 notes. in gifts to officer of corporation, 459. in equitable conversion, Chap, IX. whether tenancy joint or in common, 175 note 6. in phrase “ youngest surviving child,” etc., 101. in words “ wife” or “widow,” which see, 106, 107, ° INTEREST. gift of, as sign of vesting. See Suspznsion or ABSOLUTE OwnersuHIP (2). INTERESTS, affected by rule against suspension, 1, 61. INTERMEDIATE ESTATE. See Precepenr Esrats. defined, 11. INTERPRETATION. See Construction. INTER VIVOS, conveyance. See Conruict or Laws. ISSUE. death without. See Darn. IN VENTRE SA MERE, See Gzsration. IOWA. lives in being, 547, statutory provisions, 552, JOINT TENANCY. See Tenancy. JUDGMENTS DOCKETED. no suspension, 136. extinguished by payment or release, 186. KENTUCKY. lives in being, 547, statutory provisions, 553. INDEX. 337 [The references are to sections.] LAND. See Esrarzs, includes leasehold, 144 note, LAPSED LEGACY OR DEVISE. See Legacy; Deviss. LEASES. by trustee, 251 note 6. LEASEHOLD. is land, 144 note, LEGACY. See Girt; Suspension or Ownersuip, &c. distinguished from annuity, 144 note 2, 234-245. is @ gross sum, 285, gross sum distinguished from rents, 235-245. assignable, 2385, 240. if equal to accumulation, 273, 274. result if accumulation void, 273. accumulation to pay legacy, 274. when lapses, when not, 508. to testator’s child or descendant, 508. in remainder, when no suspension, 390, 397. charged on land, when no suspension, 398, 399. vested or contingent, 388 et seg. LEGATEE. See Legacy. “ benefit of,” meaning, 247. LEGATEE’S DOMICIL. See Coyruicr or Laws. LEX LOCI REISITAE. See Conrucr or Laws. LEX DOMICILII. See Conruicr or Laws. LIFE, ESTATE FOR. (1.) In general. as measure of trust term, 333, severance of legal and illegal, 334. pur autre vie, 332, 335. as precedent estate, 320-335. remainder after, to heirs of life tenant, 507. who takes remainder, 507. take as “ purchasers,” 507. reversal of rule in Shelley’s case, 507. See Ruue in Suetizy’s Case. (2.) Successive life estates. must be to persons in being, 321. more than two successive, rest void, 321, on death of two, remainder takes effect, 321. 22 338 INDEX. (The references are to sections.] LIFE, ESTATE FOR.—continued. precedent estate pur autre vie, 322, here, lives dropped, except first two, 322. on their death, remainder takes effect, 322. ultimate remainder after successive, 353-359. See Posrponrment or Vestine (5). vested remainders are meant, 323. successive, may not suspend vesting, 324. succession to series, 325. or to tenants in common, 325, See Cross RemainpErs, two successive, after term for years, 327. two successive, remainder to class, 328. to co-tenants, each share for two lives, 346, 352. no succession among joint tenants, 362. LIMITATIONS. remote, instead of condition, 315 note 1. are conditions subsequent, 57. and precedent, 56. separable. See SEPARABILITY. alternative. See Aurernative Dispositions. LIMITATIONS AND CONDITIONS. what referred to by the statute, 117. applies to those causing suspension, 117. revisers’ statement as to which cause suspension, 118. but wider scope now given, 118. all objectionable that cause suspension, 141. LITERARY SOCIETY, &c. See Cuariry; Corporation; Mics- 1ean; Minnesota; Wisconsin. devise or legacy, what proportion, 461. will must be executed, when, 463. LIVES IN BEING. See Srarutory Peron, I. Two Livzs in Brine. (1.) Zn general. is period allowed for suspension, 80, 98, 178, 261. in real and personal property, 89. same period for postponement of vesting, 89, 93. further suspension or postponement, when, 80, 340, 342. : this measure of term sole and exclusive, 90, 261. INDEX. 339 {The references are to sections.] LIVES IN BEING.—continued. (2.) “moderate” term not allowed, 99. not sufficient that term may end then, 91. must be certain to end then, 82, 91. if suspension may exceed, void, 91. but alternative dispositions apparent exception, 483. their validity depends on future event, 483. exception only apparent, 483. ‘this subject discussed, 483. undivided shares, uncertain which valid, result, 92, 495-499, additional measures allowed, 108. but must be bounded by two lives, 108. thus twenty-one years, and other illustrations, 108, 109, so for one beneficiary during several lives, 108, so for several lives, if bounded by two, 109. but not if it may not end with spaditied two, 110. distinction between these two eases, 110, 111. alternative measures allowable, 112, See Atrernative Dispositions, if one illegal, the other may stand, 113. rule that suspension must cease; what leeway al- lowed, 114. as, three weeks to advertise sale, 114. so alternative provision if court holds first void, 115. validity of first not created by judgment, 115. 6c Lives.” part of life is a “life,” 94, term need not continue for two whole lives, 94. suspension for part of life exhausts one life, 94. a minority is a life, 94. suspension for minority is for statutory life, 95. and for two minorities is two lives, 95. for two minorities and further life, illegal, 95. two minorities, and further life of one of same minors, valid, 95. for minority, earlier death ends suspension, 96. unless contrary intent appear, 96. till minor would come of age if living, invalid, 96. 340 INDEX. [The references are to sections. ] LIVES IN BEING.—continued. (3.) (4.) Whose lives. whose lives may be named, to measure trust term,, 224, whether beneficiaries must be selected, 224. the two sections affecting question, 225. the bearing and relation of these sections, 226. any lives may be named, 226. section 15 deals with trust term at large, 227. its scope, 227. section 55 measures term of each beneficiary, 227, 228, if beneficiaries designated, both sections apply, 229. “In being.” See Gxsration; Postuumovs Cuitpren; Un BORN CHILD. at what period must be in being, 82, 87, 97. at testator’s death, not date of will, 82, 87. lives of infants unborn, not sufficient, 97. need not both be identified at once, 97. enough if identified in succession, 97. illustrations of last point, 97. “wife” or “widow” of living person, good when, 102, 103. if referring to any future widow, invalid, 102. reason for this, 103. in this case, what certainty required, 103. simply “wife” of married man, means present wife, 104. so though with indefinite article, 104, “wife” of man yet unmarried, 102, 105. general rules as to “ wife” and “husband,” 106 107. II. Lrvzs 1 Bete. See Carrvornia; Ipano; Inpiana; Iowa; Kentucky; Norra Daxora; Sourn Dakota. LUMP SUM. - annuity purchased with, when, 185. MAJORITY. See Accumuzation (5); Inrant; Suspension oF Power, &c_ INDEX. ‘341 [The references are to sections.] MARRIED WOMEN. trusts for, 242, conveyance to, by trustee, under statute, 149 note 4. statute inapplicable to express trusts, 149 note 4. MICHIGAN. (1.) (2.) In general. term of suspension, how measured, 108. suspension for 21 years void, 108. restrictions on alienation, 141 note 5, 288 note 1. personal trusts not abolished, 145 note 4, 544. personal, purposes unrestricted, 544. personal, what law governs, 544 note. trusts in separate shares, 182. accumulation, for whom, 259 note 1. powers obviating suspension, 304 note 2. trusts, when no fee in trustee, 369. power to sell, proceeds tied up, 68 note 1. right of entry for condition broken, 133. royalties added to principal, 252 note 7. contingent estates alienable, 61 note 1. trust, failure of purpose, 159 note 1, possibility of reverter, no suspension, 131. personal property suspension, 380 note. personalty trusts, 443 note 4. personalty, what law governs, 544. Statutes of Michigan (and Minnesota and Wisconsin). See Tazz or Sratutss, p. xi, ante, estates, their division, classification, definitions, 9, 10. expectant estates descendible, devisable, alienable, 10, 61, 77, 364. remainders and executory devises, 11. precedent estate not requisite, 11. intermediate estate defined, 11. failure of precedent estate, 11. springing and shifting uses, 11. remainder defined, 12. freehold or chattel real after term of years, 12. fee limited on fee, 12 note, 340. remainders, 340. vested and contingent, 28 ez seq. 342 INDEX. [The references are to sections.] MICHIGAN.—continued, rule in Shelley’s case abrogated, 32 note 3, 507. contingent remainders, when alienable, 39, contingent remainders, meaning, 44 note 2. suspension of absolute power of alienation, 62, 122, 281. statutory provisions, 62, 122, 281. test of alienability, 64, 122, 281. posthumous children, when take, 128 note 1. vested in possession, 70. suspension by instrument executing power, 88, 299 note 1_ reversion is expectant estate, 129. and alienable, descendible, devisable, 129. trusts, purposes, 144 note 1, 544 note. trust for unauthorized purpose, 145 note 2, trusts in land, what abolished, 145. sales in contravention, 146. interest of beneficiary alienable, 146. trusts to pay sum in gross, 147. declaration of trust, 150. declaration, how manifested, 150. termination of trust, 159. trustee has the title, 162, 204, 331, 368. beneficiary has no estate, 163, 204. presumption of tenancy in common, 190. term allowed for trusts, 224. whose lives may measure term, 224. accumulations, 252, 256. rents undisposed of, who takes, 275. next eventual estate, 275, when infants may use accumulating interest, 276. powers; division, classification, definitions, 279. powers, statutory provisions, 280. what do not cause suspension, 283. trust powers imperative, 300. remainder after estate for years, 319, 326. successive estates for life, 321, 322. remainder and reversion after trust, 368. failure of issue, 501. estates tail, 504, 505. INDEX 343 [The references are to sections.] MINNESOTA. (1.) In general. term must be the statutory period, 90. minority, valid term, 100. without reference to lives, void, 108. declaration of trust by married women, 150 note 7. five trust purposes, 545. personal property, statutes inapplicable, 545. with one exception, 545. gifts to charity, 545. personal property suspension, 380 note. personalty trusts, 443 note 4, 545 note. personalty, what law governs, 545 note. (2.) For references to Minnesota statutes, see Michigan (2). MINORITY. See Accumuzation; Lives m Butne. after two lives, 259. in what cases suspension allowed for, 80, 259. death during, fee on fee, 340-342. suspension not caused by mere, 116. “minority is a life,” 95. MISSIONARY SOCIETIES, &c. See Cuariry; Corporation; Micuican; Minnesota; Wisconsin. devise or legacy to, proportion, 461. will, executed how long before death, 463, “MODERATE TERM.” for suspension, not allowed, 90, MORTGAGE. See Exrruss Trusts, 5 (a). may cause remote devolution, 134, mortgagor and mortgagee can convey fee, 134. absolute ownership of mortgage itself, suspension of, 184. MORTMAIN, 448, 449. See Cuariry (2). foreign gifts in, not forbidden, 530. distinguished from perpetuity, 448. “MUST VEST.” meaning of phrase, 317. NEXT EVENTUAL ESTATE. who takes rents undisposed of, 275. 344 INDEX. (The references are to sections. ] NORTH DAKOTA. lives in being, 547. statutory provisions, 554. NUISANCE. See Rieut or Entry. OFFICERS OF CORPORATIONS. gifts to, when pass to corporation, 459, OWNERSHIP. of accumulations. See Accumutarion (6). PAROL. : trusts created by: real property, 150. personal property, 428. PARTICULAR ESTATE. See Intermepiare Estate, defined, 5. PERPETUITY. See Postponsmeyt or Vestine; SusPENsIoNn OF OwnersuHip; Suspension or Powrr; Morrarn. foreign, not forbidden, 530, 541. PERSON. corporation as, when, 230 note 1. able to convey absolute fee, 62-68, 122, 123. if such ascertained, no suspension, 62-68, 77, 124-126, 128. if unascertained, suspension, 127, 128. PERSONAL PROPERTY. See Accumunation, I]; Suspension or Ownersulp, &c. bequest of income carries principal, 881 note 1, real property laws, how far apply: separation into shares, 175. tenancy, joint and in common, 191-204. tenancy of trust beneficiaries, 218-223, future contingent interests, 381, 383. wider application, by analogy, 383. means of creating suspension, 386. distinction between vested and contingent, different rule, 389, INDEX. 345 [The references are to sections.] PERSONAL PROPERTY.—continued. accumulation, 259, 433. rents undisposed of, 434. inalienability of trust property, 435. powers in trust, 439, “two lives in being,” 89. strictly, no remainders in, 385. meaning of remainder in personalty, 385. “contingent” has different meaning, 389. accumulations, comparison with realty, 434. bearing on, of laws affecting realty, 381. tenancy, joint or in common, 191-203. See Tenancy (6). tenancy among cestuis que trust, 218-228. rights of creditors to fund or income, 196, 197. future interests in personalty, 191-208. still possible to create joint tenancy, 201. presumption of tenancy in common, how far appli- cable, 203. from what sources derived, 221-223. two grounds for presumption, 221-228. tenancy of beneficiaries decided by intent, 175, 218, same rule as in real property, 175, 218-223. if intent is joint tenancy for several lives, void, 175, 178. if it is tenancy in common, valid, 1'75, 178. tenancy of beneficiaries, statute how far applies, 222. remainder after trust, 163 note 1. surplus rents subject to creditors, 165 note 2. leaning of court to sustain instrument, applies to person- alty, 223, PERSONS IN BEING. See Lives in Brine; Wivow; Wire; Un- Born CHILD. meaning, 66. judge acting in official capacity, 66. his approval is condition, not conveyance, 66. ultimate remainder need not be to, 316 note 1. ‘POSSESSION. See Estates; Postponement or Posssssion. POSSIBILITIES. affected by rule against suspension, 1. 4 346 INDEX. [The references are to sections.] POSSIBILITY OF REVERTER, defined, 131. not an estate or interest, 131. illustrations, 131. remote contingency, but no suspension, 131. possibility may be released, 131. right of entry sometimes called possibility, 132. such title inappropriate, 182 note 2, POSTHUMOUS CHILDREN. See Gusration; Unsorn Cum. take, where limitation to heirs, &., 128 note 1, “death without issue,” posthumous children, 1 R, 8S, 725,. 31. POSTPON eT OF ENJOYMENT, See Suspension oF: OwnersuiP (2); PostponEMENT oF PossEssion. POSTPONEMENT OF POSSESSION. (1.) Real property. legal title in beneficiary, 288. power to retain, no trust, 288. and no suspension, 288. beneficiaries may convey, 288, term not measured by lives, 288. illustrative cases, 289-294, (2.) Personal property. See Suspznsion or Ownursuip. relation of ownership to possession, 392, how far void, 395. invalidity does not cause suspension, 395. legacies charged on land, 398, 399. descent subject to charge or power, 399, legacies charged on particular personal property, 400. New York rule of postponed possession, 896-410. if beneficially vested, postponement no objection, 405-410... postponement, owners may sell freely, 406, 408. postponement consistent with assignability, 408. postponement for benefit of legatee, 409 and note 1, 417. postponement for convenience of estate, 408, 409 and note- 1, 417, POSTPONEMENT OF VESTING, 314-379. See Conrinazent; Tswancy; Vzsrep; REMAINDER;. Exprcranr Estarzs; Statutory Prriop, INDEX. 347 [The references are to sections.] POSTPONEMENT OF VESTING.—continued, (1.) (2.) (3.) In general. the rule concerning, 1, 814, scope of rule, 1, 2. how long may continue, 1. See Lives 1n Berna; Statutory Periop. applies only to remainders, 1, 314 et seq. vesting, absolute and defeasible, 70, 71, 72, 314. either satisfies the rule, how far, 314, 316. defeasibility, effect on remainder, 314, must be vested in interest, 314, 316. limitation instead of eondition, effect, 315 note 1. vesting in right not sufficient, 314, 316. ultimate remainder to person not in being, sufficient, 316 note 1, separate shares and sub-shares. See Tenancy. each share judged by itself, 220. Remainder on estate for years, statutory provisions, 319, must vest in two lives, 319. if contingent for term of years, illegal, 319 note 2. life estate after term for years, 326. Remainder on estate for life. statutory provisions, 320-322. only two successive life estates, 321. acceleration of remainder, 321, 322, 323. vested, accelerated, 323. contingent not accelerated, 323. but is cut off, 323. in any event, vesting must occur in statutory period, 323. successive life estates, no suspension, 324, 348. successive estates, different forms, 325. eross remainders constitute successive estates, 325, 348. estates pur autre vie, 322. only for two lives, 322, life estate after term for years, 326, remainder still vests in two lives, 326, 327. remainder to class, same result, 328, remainder after trust estate, same result, 329-335. all remainders after life estate, must vest when, 335. 348 INDEX. [The references are to sections.] POSTPONEMENT OF VESTING.—continued. (4.) Remainders after fee, 386-344, 5.) (6. ~~ not allowed at common law, 336. prohibition now removed, 337. contingency must happen, if ever, within statutory period, 339. remainder on remainder in fee, 340, relation of general and special provision, 341, 342, meaning of general provision, 341. meaning of special provision, 342, postponement beyond two lives, when allowed, 340, 342. “statutory period,” defined, 344. two lives, when, 344. further minority, when, 344. Remainder after tenancy in common, 345-359. See Tenancy. tenants in common for life, cross remainders, 347. sub-shares also in common, 347, each share suspended for two lives, 350. each share judged by itself, 350. where remainder contingent for several lives, 351. uncertainty may outlast two lives, void as to all, 8351-352. if must end for part in two lives, good as to them, 352. ultimate remainder good as to part, void as to others, 353-359, where some shares of remainder must vest in time, 353, 356 where which good and which remote, uncertain beyond valid term, 353-356. See ALTERNATIVE ConTINGENCIES (8). in all events when remainder must vest, if ever, 357, 358, 359. Remainder after joint tenancy, 360-366, See Tenancy. the general rule of vesting, 361. remainder after joint tenancy an exception, 362. must become alienable in statutory period, 362 note 1. but need not vest, 362. no successive estates among joint tenants, 362. distinction between tenancy joint and in common, 362, 363. INDEX. 349 [The references are to sections.] POSTPONEMENT OF VESTING.—continued. remainder after former, how long contingent, 362, 364. not limited to two lives and minority, 366. (7.) Remainder after trust estate. whole estate in trustee, 331, 368. creator of trust may grant or devise remainder, 331, 368. or grant or devise subject to trust, 368. estate of such grantees and devisees, 368. reversionary interest of creator of trust, 368. some trusts necessitate fee in trustee, 331, 369. some do not, 369, after second class, remainder or reversion, 370. whether remainder or not, 370, 371. direction to convey after trust, 370. remainder after trust, 367-379. direction to convey after trust, 370-379, interests under such power, when contingent, 372. when not remainders, 372. when grantees under power unascertained, 372. if grantees ascertained, vested remainder, 373-379. whether distinction is between will and deed, 377. true distinction, 377. remainder after trust, when must vest, 8329-335, 379. if too remote, void, 332. POWER IN TRUST. (1.) Jn general, how cause suspension, 278. fee in one, power in another, 278 note 1. power defined, 279. powers classified, 279. characteristics and definitions, 280. how created, 280. future interests to arise on exercise of power, 313. relation of powers to suspension, 318. [And see case cited in foot-note, p. 319.] definiteness in designating beneficiary, 151 note 1. imperative power, 300. meaning of term, 300. in trust to sell, 246. possibility of illegal exercise, see (6), post. 350 INDEX. [The references are to sections. ] POWER IN TRUST.—continued. (2.) (3.) (4.) discretionary power, 300. meaning of term, 300. do not effect suspension, 246. possibility of illegal exercise, see (6), post. three classes of power, 282. void trust, good as power, when, 145. Powers not causing suspension. (a.) beneficial powers, 283. give absolute fee, when, 2&3. liable to creditors, when, 283. do not cause suspetision, 283. (8.) title in beneficiary, 284. may convey, and defeat power, 284, 285. (c.) election, when can be exercised, 286. (d.) general power to sell, 287. bearing on suspension, 287. (e.) postponement of possession, 288-294. See Postponement or Possession. Powers causing suspension. (a.) future sale, proceeds to trustee, 297. suspension results, 297. sale cannot be hastened, trustee cannot release, 297. time for execution of power important, 297 note 1. (3.) sale, proceeds to unascertained persons, 298. no persons to release or destroy power, 298. suspension results, 298. general rule, 299. Powers obviating suspension, 301-313. relations of suspension and power to sell, 302. freeing proceeds of sale, 302, 304-310. power to sell insufficient unless proceeds freed, 309, 310. ‘distinction between “obviating” and “not causing” sus- pension, 312, (5.) To convey after trust term, 870-879. See Postponement or VESTING. if to unascertained persons, 372. if to ascertained persons, 373. effect on nature of future interest, 371-379. INDEX. 351 [The references are to sections.] POWER IN TRUST.—continued. (6.) Instrument in execution of power, 88, 297 note 1, 299 note 1. period of suspension in such case, how reckoned, 299 note 1. possibility of illegal exercise of power, 300. this possibility does not invalidate, 300, unless illegal exercise imperative, 300. POWER OF ALIENATION. See Suspension or Powzr, &c. POWER OF APPOINTMENT. See Powzr in Trust (6). ‘POWER OF DISPOSITION. See Assoxrurz Power or. PRECATORY WORDS. may suffice to imply trust, 154 note 4. PRECEDENT AND SUBSEQUENT. See Conpition; Contin- GENCIES. PRECEDENT ESTATE. See Inrermepiats Estate. defined, 5, same as particular estate, 5, supported remainder, 5. no longer necessary, 11. effect of failure; 6, 11. expiration before remainder, 11. destruction of, 11. no “remainder” without, 12. character, if remainder vested, 16, how affected by contingency, 55, when in tenants in common, 345-359. when in joint tenants, 360-366. when in trustees, 367-379. PUR AUTRE VIE. See Estarzs; Lirz, Estare ror (1), (2); Postponement oF VEsTING (3). PURCHASE. distinguished from descent, 4, 507, PURPOSE, See Express Trusts (1). failure of special. See Equitasty Coxversion. when purpose fails, trust ends, 159. ‘QUALIFIED FEE. at common law, 4. 352 INDEX. (The references are to sections.] REAL PROPERTY. See Esrarzs; Lanp. how far realty laws apply to personalty, 175, 218-223), 381, 383, 483, 4385, 439. See PersonaL Properry. “REASONABLE TIME.” not good measure of term of suspension, 90. RE-CONVERSION. when occurs, 478. See Equrrasie Conversion. RE-INVESTMENT. power to sell for does not obviate suspension, 67. RELEASE. sufficient to avoid suspension, 64, of annuity, 241. of mortgage, 134. of judgment, 136. of possibility of reverter, 181. by trustee, when not, 297. of right of entry, 1338. of charges, 135. of contract rights, 137. by State, of right to enforce escheat, 138. of covenants, reservations, easements, 139. of contingent future estate, 126. RELIGIOUS SOCIETIES, &c. See Cuariry; Corporation; Micuiean; Minnzsora; Wisconsin. devise or legacy to, proportion, 461. gift to, though unincorporated, 450 note 8. REMAINDER, See Esrares; Furors Estarss; Precepent Estate; Vestep; ConTincEnciss, defined, 5, 12. ultimate, need not be to person in being, 316 note 1. “limited” on precedent estate, 5, 6. no remainder after fee, 5. characteristics of, 6, 16, 27. how defeated, 6, 17. vested and contingent, 8. distinction, 8. contingent, how limited, 8. contingent, on term of years, 12, INDEX. 353 [The references are to sections.] REMAINDER.— continued. classified with executory devises, 11. none, unless precedent estate, 12. alone required to vest, 1, 2. remainder may be in trust, 163 note 1. acceleration, when, 821-323. “ splitting” alternative gifts, 484-494, “splitting,” distinction between remainder and executory devise. See Aurernative Dispositions (2). remainders in personalty, 385, remainder after estate for years, 319. remainder after estate for life, 320-322. See Lirs, Estate ror. after fee, 12, 336-343, See Fes. : remainder after joint tenancy, 362-364, 366. remainder after tenancy in common, 345-359. remainder after trust. See Postponement or Vestine (7). REMAINDERMAN, ultimate, need not be in being, 316 note 1. and beneficiary, when same person, 164, See Trustzz anp BENEFICIARY. REMOTENESS. See Posrpoyement or Vestine; Suspension oF Ownersuip ; Suspension or Power. RENTS. See Rents anp Prorits. RENTS AND PROFITS. See Accumunation; Annvitizs; Ex- press Trusts (5), (6). must be given to trustee, 155. otherwise no trust, 280. words “rents and profits” unessential, 155. surplus, creditors’ rights in, 165 note 2. wrongful receipt of, by creator of trust, 159. undisposed of, to whom go, 275. where fund is personalty, 434. suspension, d&c., of rents, 146 note 3. REPUGNANCY, 394, 424. RESERVATIONS. See Covenants. RESTRAINTS ON USE OF PROPERTY. considered with covenants, 139, 140. 23 354 INDEX. [The references are to sections.] RESTRICTIONS ON ALIENATION. See Suspension or Powzr or ALIENATION. involving suspension, must cease when, 141. where restriction only partial, 141. REVERSION, ESTATE IN, 10. See Estates; Possipiuity or Reverrer. defined, 1 R. 8. 728, § 12. vested or contingent, 129. though contingent, alienable, devisable, descendible, 129. does not cause suspension, 129, after certain trusts, 8368-370. REVERTER. See Possrsitity oF Reverter; REVERSION. REVOCATION. power of, reserved by creator of trust, 158, 428 note 6. RIGHT OF ENTRY. for condition broken : sometimes called possibility of reverter, 132. but this term inappropriate, 132 note 2. effect on vested estate, 132. . breach without entry, 132, right may be waived, 132. is condition subsequent, 57. and precedent, 56. illustration, conditions against nuisances, &c., 133, breach of condition may be indefinitely postponed, 133. effect on right, 133. does not involve suspension, 133. remainder over after such, void, 133. remote chance of right to enter, valid, 133. no interference with conveyance of fee, 133. right of entry itself inalienable, 133. destroyed by attempted assignment, 133. may be released, 183. estates subject to, defeasibly vested, 57. RIGHT. vested, in contingent interest, 14, 70-79, 314-316. RIGHTS. , how affected by rule against suspension, 1, 61. ROYALTIES. added to principal, no accumulation, 252 note 7. INDEX. 355 (The references are to sections. ] RULE IN SHELLEY’S CASE. See Suettny’s Casz, Rutz iw. RULE I (ALIENABILITY), 1, 61, See Aurenaziuity; Suspension or Power or ALIEN- ation; Union or Inrerzsts. does not require vesting, 61. scope, 1, 2, 61, requires only alienability, 61. RULE II (VESTING), 1, 314. See Vestep; REMAINDER. scope, 1, 314-318. SALE, See Auieyastuity; Equiraste Coyversion; Powsr in Trust, when direction for effects conversion, 471-478. forced, to pay annuity, when, 135. power to make, for re-investment, 67. general power to make, 287. by beneficiary under power, 284, 285. proceeds to unascertained persons, when suspension, 298, 299. power to sell, relation to suspension, 302, 304-310. sale, proceeds not freed, suspension, 67. future payment to trustee, suspension, 232. trust to sell, proceeds to grantor, void, 246 note 2. sale for re-investment. See Rz-invesTMEnr. fixed time to advertise, no suspension, 114, involved in trust, when no suspension, 147, 232. permitted by trust, no suspension, 147. SCIENTIFIC SOCIETY, &c. See Cuariry; Corporation; Micr- ican; Miynesora; Wisconsin. devise or legacy to, 461. will to be executed, when, 463. SECRET TRUST. illegal suspension by, result, 146 note. SEPARABILITY. See Atrernative Dispositions, (1.) General principles. void and valid provisions, where separable, 480. not necessarily all invalid, 480, 481. 356 INDEX. (The references are to sections. ] SEPARABILITY.—continued, if one indivisible scheme, 480. if provisions independent, 480, 481, 482. personal or money trusts, 480. valid and void separable, 480 note 2. if main scheme void, result, 480. valid and void provisions in single trust, 482. when separable, 482. SEPARABLE LIMITATIONS. See SHpaRaBILITy. SERIES. successive estates to, 325, SHAKER TRUSTS. special statute, 450 note 8. SHARES. See Tenancy; Cross REMAINDERS. property may be held in, 170-223. and whether trust or not, 170-228. each share judged by itself, 201-203, 218-223. each suspended or postponed for two lives, 220. SHELLEY’S CASE, RULE IN. abrogated, 32. present rule, 507. SHIFTING. uses, 7. See Sprineine Uszs. of beneficial interest during term, 230, SOUTH DAKOTA. lives in being, 547. statutory provisions, 555. SPLITTING. See Atrerwative Disposrrions (2). defined, 489. in what cases applicable, 484. SPRINGING USES. in deeds, 7, obviated precedent estates, 7. discussion of, 7 note 1. STATUTES, See Taste or Srarurss, ante, page xi; and Micu- 1aaN; Minnesota; Wisconsin. INDEX. 357 [The references are to sections.] STATUTORY PERIOD. (1.) For suspension of power of alienation. two lives in being, 80. and further minority, 80. under instrument executing power, 88. (2.) For postponement of vesting, 344. (8.) In case of trusts, 330. (4.) For suspension in personalty, 382. SUB-SHARES. See Cross Remainpers; Tenancy. SUBSTITUTION OF PROPERTY. See Excuancr or Pror- ERTY. SUCCESSIVE ESTATES FOR LIFE. See Lirs, Esrars ror. SUCCESSIVE BENEFICIARIES, 260. See BEnaEriciaRizs. SUFFERANCE, ESTATE AT, OR BY, See Esrarzs. is chattel interest, 9. SURPLUS RENTS. disposition of, 165 note 2. liable in equity, to creditors, 165 note 2. SURVIVING CHILD. youngest or eldest. See Younezst Survivine Cuixp. SURVIVORS. See Survivorsuip. at what time; intent controls, 502 notes. SURVIVORSHIP. (1.) Real property. words of, refer to testator’s death, 502, after his death no further devolution, 502. contrary result, if intent appear, 502, natural import of words sought, 502. (2.) Personal property. words of, refer to time of distribution, 426. unless contrary intent shown, 426. (3.) Jn joint tenancy, 187. SUSPENSION OF OWNERSHIP OF PERSONAL PROP- ERTY. See Suspension or Power or ALIENATION ; TrEnancy. (1.) In general. meaning, 384. statutory provisions, 381. statutory term, how long, 382. 358 INDEX. (The references are to sections. ] SUSPENSION OF OWNERSHIP OF PERSONAL PROP- ERTY.—continued. (2.) only for two lives, 382. See Srarurory Pzrtop. meaning of “two lives.” See Lives in Bztne. never for further minority, 382. gift of income carries principal, 881 note 1. and creates no suspension, 381 note 1. realty rules applicable, when, 381. See PersonaL Property, by statute, only to future contingent interests, 381. wider application by analogy, 383, 435, 439. rule for assimilating realty and personalty rules, 383. rules of suspension and postponement in realty, 384. compared with single rule in personalty, 384. personalty must vest in beneficial owners, 384, 387, ia a - contingencyand by trust, 386 and infra (2), 3). absolute beneficial ownership is sole test, 386, 387. alienability may exist before vesting, 384 note 3. but does not satisfy statute, 384 note 3, 420. investment in common fund, no suspension, when, 384 note 3. if interests vested and transferable, no suspension, 384 note 3. . separate shares and sub-shares. See Tenancy (6). each share judged by itself, 220. Caused by Contingencies, 3887-426. See PostpoNEMENT OF Possxssion, while contingent, no absolute ownership, 387, 419. when vested, no suspension, 387. test of suspension, 387. “vested” and “contingent” distinguished, 388, 389 note 4. distinction not same as in realty, 389. which, when enjoyment postponed, 388. test of vesting, 388. when vested, rule, 389. when contingent, rule, 389, “contingent” defined, 389. if futurity annexed to substance of gift, 389. if time not of substance of gift, 389. where gift vested in remainder, 390, 396. INDEX. 359 [The references are to sections.] SUSPENSION OF OWNERSHIP OF PERSONAL PROP- ERTY.—continued. relations of respective beneficiaries, 390. immediate gift, payment postponed, 391. no gift save by direction for future payment, 411. scope of this rule, 411. _ confined within its express terms, 411, 416. where immediate severance, with interest, vested, 412. interest during postponement, implies vesting, 412. interest at rate named, but not earned, 412. if equal to, though not called, interest, 412. reason for inference from interest, 412, 413. unless entire interest, presumption fails, 413. may be vested though entire interest not given, 418. if not all given, indicates contingency, 413. where interest not specifically given at all, 415, consistent with vesting, 415. and may imply it, 415. gift and also future payment, 416. where postponement permissive, 416, gift to persons to be ascertained, 418. future division, unascertained persons, 418. where fund not yet created, 418. gift contingent, ownership suspended, 387, 419. statute calls for ownership, 420. and not for assignability, 420. when gift would be void if vested, result, 421. separate shares and sub-shares, See Tenancy (6). each share judged by itself, 220. postponement of possession, 391-401, See Postponement or Posszssion. (8.) Caused by trusts, 427-438. creation, by writing or orally, 428, proof, by declaration, 428. duration, two lives, only, 428. termination, on reaching limit, 428. or on failure of purpose, 428. if perpetual, void, 428 note 4. See CEMETERY. 360 INDEX. [The references are to sections. ] SUSPENSION OF OWNERSHIP OF PERSONAL PROP- ERTY.—continued. revocation, creator may reserve power of, 428 note 6. purposes, no restriction on, 429. suspension, certain do not cause, 429 note 4 accumulation. See AccuMULATION. effect of trusts on suspension, 435-438, sale in contravention, 435. assignment by beneficiary, 435, same rule as in realty, 4385. applied by analogy, 435. title of trustee, 485 note 5, real and personal mixed, duration, 487. trust to pay part of principal, 438. (4.) Caused by powers in trust. See Powsr in Trust; Post- PONEMENT OF PussEssIoN. statutory provision, 439. governed wholly by statute, 439, powers over personalty inuluded, 439. realty rules applicable, how far, 439. SUSPENSION OF POWER OF ALIENATION. See Suspension or ApsoLuTe Ownersuip; Tenancy; Union oF INTERESTS. (1.) In general. statutory provisions, 122. when exists, 122, 281. how occasioned, 119. test of its existence, 64, 123, 142, 147, 232, 281, 296, 301. obviated by power to sell or release, 64, 364 note 2, 365, 67, 68, 147, See Retzass; Sate; Assienasiiry. power to release sufficient, 64. or to extinguish contingencies, 64. if all interests can unite and give fee, sufficient, 64. absence of power, not of exercise, important, 67, 147. only exists when by terms of instrument, 116. not when result of infancy, 116. or any outside cause, 116. nor by accumulation to pay lump sum, 274. nor by same to restore depleted capital, 274. INDEX. 361 (The references are to sections.] SUSPENSION OF POWER OF ALIENATION,—continued. (2.) (3.) not caused by powers in trust, when, 283-294. See Powsr in Trust (2). caused by instrument executing power, when, 88. See Power in Trust (6). in such case, how time computed, 88, 299 note. power to sell, but proceeds bound, result, 67, 68. separate shares and suo-shares, 170-185. each may be tied up for two lives, 170-223. See Tenancy. suspension of power, and of ownership, 464, 468. relation of realty and of personalty rules, 464, 468. See Personat Propzrry. how affected by equitable conversion, 469. Term of suspension, how long may continue, 1, 64. See Starurory Pzriop; Lives in Berne. term where both real and personal, 437. must certainly cease by end of term, 82. validity depends on facts at creation, 82. as, by facts at testator’s death, 82-87. not by facts at execution of will, 82-87. same is rule in England, 87. two lives, &c., sole and exclusive measure, 90. if suspension may exceed term, void, 91. for apparent exception, see ALTERNATIVE Dispositions. certain leeway is allowed, when, 114. as three weeks to advertise sale, 114. other illustrations, 115. void though it may not exceed, 01. suspension for “ moderate” period void, 90. illegal suspension of part, effect on rest, 92, See Cuaprer X. additional measures of term allowed, 108, 109. but under what restriction, 108. alternative measures allowed, 118. one void, result, 113. How occasioned. revisers suggested only one method, 118. three methods now recognized, 118-121. 362 INDEX. (The references are to sections.] SUSPENSION OF POWER OF ALIENATION.—continued. (a.) by contingency, 117-141. contingent future estates, 124-218. two classes, 124. first, person ascertained, 124. second, person unascertained, 127. ascertained person has vested right, 124. effect of conveyance by him, 125, person ascertained, no suspension, 126. in what sense estate then alienable, 126 note 1. suspension by contingency and trust both, 127 note 2, 165 note 3, person unascertained, suspension, 127. remainders also under these two classes, 128. separate shares and sub-shares, 170-185. each share, suspension for two lives, 170-223. See Tenancy. contingent reversion, no suspension, 129. See Reversion, contingent rights, interests and possibilities, 130-138. See Possisinity or Reverter; Ricut or Entry; Morreaces ; Annuities; Cuarees; Jupe- MENTS; Contracts; Covenants; ReEserva- tions; EasEMENTS. (b.) by express trust, 142-276. See Express Trusts. how caused, 143, 146. involving sale, no suspension, when, 147, 232. so when permitting sale, 147. so where beneficiary can assign, 147. two classes, 146. characteristics of each class, 146. which causes suspension, 146. sales in contravention forbidden, 146. beneficiary forbidden to assign, 146. only acts in contravention forbidden, 146 note. when suspension, though power to sell, 232. by future express trust, 165 note 3, (c.) by power in trust, 277-313. See Powzr in Trust. INDEX. 363 [The references are to sections.] ‘SUSPENSION OF POWER OF ALIENATION.—continued. suspension by instrument executing power, 299 note. See Power in Trust (6). TAIL, See Fre Ta. ‘TENANCY. (1.) At common law. joint tenancy defined, 187. tenancy in common defined, 188. common-law presumption of joint tenancy, 187-189. meaning of common-law rule, 187. survivorship, 187. tenancy, joint and in common, distinguished, 188. origin of common-law presumption, 189. the leaning in equity, 189. more latitude and less strictness in wills, 189. (2.) Under Revised Statutes. common-law presumption abolished, 190. statutory presumption of tenancy in common, 190. still possible to create joint tenancy, 201. but tenancy in common presumed, 202, (3.) Of beneficiaries under trust, tenancy joint and in common among beneficiaries, 180. meaning of terms so used, 180. shares, corpus may be in, 171, 218. each share judged on its own merits, 171, 218. each suspended for two lives, 171. trustee may be directed to divide, 171, 219. and hold each portion on separate trust, 171, 219. sufficient, though trustee fail to divide, 171 note 1. conveyance to trustee in solido, 172, 220. where no direction to split, 172, 221. but to apply for many beneficiaries, 172, 220. does law then consider shares separate, 172. may each share be suspended two lives, 172, 220. importance of question, 178. where intent discovered, followed, 175, 1778, 1'79, 205. if intent is joint tenancy, scheme void, when, 175, 178. 364 INDEX. (The references are to sections. ] TENANCY.—continued. if intent tenancy in common, valid, when, 175, 178. indications of intent, 175 note 6. illustrations of distinct shares, 176. results of division on suspension, 177. court leans toward sustaining the instrument, 178. each portion must be freed in two lives, 178. if longer, void, 178. but separate trusts unnecessary, 179. if interests in shares, distinct character results, 179. sufficient, if intent appear, 179, 205. even intent need not be expressed, 179. division in contemplation, though actual forbidden, 179. real fact, and not form of expression, important, 180. result where shares not distinct, 180. what presumption, if intent absent, 205. Chancellor Walworth’s theory, 206. applicability of real estate presumption, 206. Chief Justice Savage’s theory, 207. Justice Nelson’s theory, 208. further principle of sustaining instrument, if possible, 209. presumption of juint interests, if needed to sustain trust, 209, 218, 214. inference to be drawn from tenancy in remainder,. 215, 216. two rules for determining tenancy, 221. applicability of statutory presumption, 222. weight in trusts of realty, 222. in trusts of personalty, 222. both realty and personalty, 222. rule sustaining instrument, if possible, 223. equal weight in trusts of realty and personalty, 223. division into shares after first life, 181. shares divided into sub-shares, 181. suspension for two lives for each, 181-188. does direction to divide imply further subdivision, 184. general direction does not apply to sub-shares, 184. INDEX. 365 [The references are to sections.} TENANCY.—continued. when some shares vest in a beneficiary, 185. tenancy between him and trustee, 185. (4.) Remainder after joint tenancy. See PostponEmMENT oF Vestine (6). (5.) Remainder after tenancy in common. See PosrronsMEent or Vzstine (5). (6.) Tenancy in personal property. See Pzrsonat Propsrty. common-law presumption of tenancy in common, 191. how far statutory presumption applicable, 191. applicable to estate for years, 191. applicable to future interests, 192, 195. how far applicable to present interests, 191-203. how far to personalty trusts, 217, 223. “TENANCY IN COMMON. See Tenancy. remainder after, 345-359. TERM. for continuance of suspension or postponement, see Ac- cumutation ; Lives in Berne; Statutory Prriop. TESTATOR’S DEATH. is the time from which period of suspension is reckoned, 82-87. See Lives in Brine. TESTATOR’S DOMICIL. See Conrurct or Laws. TIME. for continuance of suspension or postponement, see Livss tn Berne; Accumutartion. for determining validity of term, 82, 87. See Livss in Berne, I (4). TRUST. real property. See Express Trusts. personal property. See Suspension or Ownersuip (8). ‘TRUSTEE. See Express Trusts; Benerictary; Suspension or OwnERSHIP. death, resignation, or removal, does not end trust, 159 note 3. unless so provided or implied, 159 note 3. word “trustee” not neccessary to trust, 153. forbidden to sell in contravention of trust, 146. discretion to end trust, 158. 366 INDEX. [The references are to sections.] TRUSTEE.— continued, death, resignation or removal of, 159 note 3. leases by, 251 note 6, cannot release trust, 297. power of to sell, effect on suspension, 147, title must be in, 154. he takes entire legal and equitable title, 162. and full control, 162. meaning of “ whole estate” in him, 155. may or may not take fee, 155, 369. takes subject to trust, 165. same person beneficiary. See Trustzz anp BEnericiary. of personal property, 485-438. rule against sale in contravention applies, 435. TRUSTEE AND BENEFICIARY. same person cannot be both, 166. equitable interest merges in legal title, 167. may be beneficiary of one undivided share and trustee of” others, 167, where several trustees, one being beneficiary, 168. if the other trustee die or resign, 168. trustees all beneficiaries and all remaindermen, result, 169. TRUSTEES OF CORPORATIONS. See Cuaniry (5). gifts to, take effect in corporation, when, 459. TWO MONTHS PROVISION, See Cuariry (7). UNBORN CHILD. See Gestation; Inranr; Postnumous Catt- DREN, when beneficiary, 230. when accumulation for, 257, how affected by equitable conversion, 472 note 4. when not “ person in being,” 97. UNION OF INTERESTS. of various interests to convey fee, 64, 147, See Retzasz; Assicnapiuiry; Sate; SuspEnsion;, ALIENABILITY, of mortgagor and mortgagee, 134. USE. may be shifted during term, 230. INDEX. 367 [The references are to sections.] USES AND TRUSTS. abolished, 145, 443. VESTED. (L.) Zn general. definitions, 46. characteristics, 23-27. indications of future vesting, 423. relation to alienability, 2, 61. if vested, alienable, 61 note 2, 79. when inalienable though vested, 61, 70 note 1. vesting, not implied by alienability, 61. of remainder after joint tenancy, 362-364, 366. of remainders generally, See Postponement oF VESTING. “‘ when he attains 21,” present vesting, 510. so, “from and immediately after A’s death,” 510. person must be ascertained, 23. in personal property, 381-426. See Suspension or OWNERSHIP. (2.) Three meanings, 14, 69-73. in possession, 70. definition, 14, 70. absolutely or defeasibly, 57, 70. in interest, 72. definition, 14. absolutely or defeasibly, 20, 57, 72. in either case alienable, 72. in class subject to open, 72 note 2, See (5), post. subject to depletion, 72 note 2. vested in interest, and in right, 70-79, 315. practical difference, 315. if contingency too remote, vested estate absolute, 315, 316. in right, 14, 78, 79. estate contingent, right vested, 73. does not satisfy rule against postponement, 314, 316. compared with defeasibly vested in interest, 70-79, 315, 316. vested right, when void, 315, 316. 368 INDEX. [The references are to sections.] VESTED .—continued. (3.) (4.) Vested or contingent, distinction, 22-27. statutory and common-law distinctions, 29-52. meaning of statutory definition, 28-52. whether same as common-law, 28-52. authorities favoring difference, 29-39. authorities favoring identity, 40-52. meaning of vested and contingent in personalty, 389, Vested subject to defeat, 19. before or after possession, 17, 21, 57. (5.) Vested subject to open. (8.) (9.) (10.) description, 58. illustrations, 58 e¢ seq. vested in possession, no longer opens, 58 note 1, 60 note 328. . where substituted devise, result, 59. no words of survivorship or devise over, result, 60. where devise is to class, 58. where estate devised is contingent, result, 60 note. defeasible pro tanto, 20. “ opening” ceases, when, 328. Relation to Alienability. involves alienability, 2, not essential to alienability, 64. not required by rule on suspension, 1. Remainders. when must vest, 1. See Cuaprer VI. what vesting is required, 1. includes alienability, and more, 2. scope of rule concerning, 1, 2. after trusts. See Postponzment or Vestine (7). Reversions. vested and contingent, 129. Absolutely vested. See Accumuzation (6), Defeasibly vested. See Accumutarton (6), vested, though defeasible, 71. , INDEX. 369 [The references are to sections.] WIDOW. See Livzs in Burne, I (4); Wire. WIFE. WILL. of living person, to measure trust term, 102, 103. if reference to any future widow, invalid, 102. reasons for this, 103, widow’s election between dower and will, 160. See Lives 1n Berna, I (4); Wipow. of living person, to measure trust term, 1038. if the man now married, means present wife, 104. in that case, valid designation, 104. if he is yet unmarried, 102, 105. general rules as to designating “wife” and “husband,” 106, 107. accumulation directed by, 253. to charity, must be executed when, 463. how much may be given to charity by, 461, trust created by, 149, 428. WILL, ESTATE AT. See Esrarss. is chattel interest, 9. WISCONSIN. (1.) Jn general. term of suspension, 546, 108 notes. if to literary corporations, 546, accumulations, term, 546. six trust purposes, 546. term beyond two lives, 546 and note, law of charitable uses, 546, to unorganized corporations, 546. personalty, what law governs, 546 note. charitable and literary corporations, 544 note. inapplicable to religious corporations, 544 note. limitation on fee, death without issue, 57 note 1. legacy charged on land, 398 note 2, power to sell, proceeds tied up, 68 note 1. right of entry for condition broken, 182, 133. restrictions on alienation, 141 note 5. trust to sell, &c., and pay proceeds, 144 note 3. trusts, what abolished, 145. future estate in trust, 163 note. personalty trusts not abolished, 145 note 4. 24 370 INDEX. [The references are to sections. ] WISCONSIN .—continued. legacy, payment postponed, 408 note 2. repugnancy, 408 note 2. cy pres doctrine, 442 note 1. gifts to. charity, 453 note 1, 455 note 1, mortmain statutes never in force, 448 note 4. (2.) Statutes. for references to Wisconsin Statutes, see Micuiean (2). YEARS, ESTATE FOR. See Esrarzs. , is chattel real, 9. is land, 144 note. as precedent estate, 319, 326, 327. YOUNGEST SURVIVING CHILD. or eldest surviving child, 97-101. until youngest shall reach majority, 98. these phrases, two constructions, 100. may mean surviving at testator’s death, 100. or surviving to reach majority, 100. former good, though many children, 100. latter void, if more than two minors, 100. intent governs, 101. other illustrations, 101. [Wore Numper or Pacus, 410.] Te al ete Ay