«i ! •i OJnrnpll ICam ^ri|onI IGibtarg Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022812295 THE LAW OF ESTATES CREATED BY WILL. BY EDWARD B. THOMAS. Of the New York Bar, AUTHOR OP " THE LAW OF NBGLIGBNCB. " X^oi^. I. BANKS & BROTEERS, NEW YORK. ALBANY, N. Y. 1898. COPVBIGHT, 1898, BY BANKS & BROTHERS. PREFACE, The vast increase of distributed wealth, during the last twenty-five years, has multiplied occasions for examining the nature of interests in property, and the manner and validity of their creation. This duty often occurs in connection with the examination of titles, the preparatiotl of wills, or the administration of estates. Indeed, it may be safely said that no other department of law makes so frequent and continued de- mand upon the time and capacity of the profession, or afiEords more legitimate and profitable employment The Revised Statutes introduced in New York in 1830, modified, changed, or embodied the general doc- trines of the common law on the subjects here treated. Although the first interpretation of such statutes are found in the common law and equity reports, yet the more substantial exposition has been the work of the Court of Appeals. The labor of the court in this respect is a splendid monument to the learning, wisdom and industry of its judges. There has arisen from its decisions in connection with the Revised Statutes a system of jurisprudence that sufficiently preserves the spirit of the common law, and yet skillfully adapts the statutes to the quick- ened thought and the social and commercial necessities of the century. To one reviewing the decisions contained in over one hundred and fifty volumes of the reports of the Court of Appeals, and the elaboration of of these difiicult principles and their application to ever varying states of facts, there comes a profound regard for the magnitude of the labor of that court, the general symmetry of the body of the law produced, and the mental grasp of the men who have shaped it. To suitably discard the harmful and confusing technicalities that abound in " the gloomy and intricate forest of ancient laws," retaining what was essentially sound, useful and generally adaptable, was the work of the revisers ; to give an independent vigor to the statutes, and, at the same time, to enrich them with the judicial wisdom, which through centuries the com- mon law had accumulated, to apply them to the detailed activities of a iV PREFACE great state, was the task of the court, a task performed if not with uni- form absence of error, yet with a success that merits and receives gen- eral acknowledgment. The retirement, now too soon approaching, of the present chief judge, whose learning and exalted character has added " dignity to the supreme magistracy " will close the labors of those illustrious lawyers, to whom long since was committed the duty of ap- plying these most subtle principles, and establishing them finally and enduringly in the general fabric of our laws. The work will be con- tinued henceforth by successors, whose devotion to the important inter- ests submitted to them for final decision, renders the profession expectant of a perpetuation of the results already obtained. The primary purpose of this work is to aid those, whose sole aim is to ascertain the state of the law in New York, in relation to the creation of estates, with special reference to estates created by will. But cer- tain phases of the subject, as for instance, the law relating to Trusts, Powers, Conditions, require that the statutes and decisions involving estates created by grant or contract should be included. Whenever necessary, this has been done. The decisions of the Court of Appeals have received their merited prominence, but the cases decided by other courts of this state have been gathered, it is hoped, with sufficient painstaking, and every reasonable effort has been used to place in con- nection with each topic the pertinent statutes, with references to the enactments from which they were derived, or which they superseded. The law of New York on the subjects here treated is in a large degree based upon, or modified, by statutes. Hence the decisions of the courts of other states are often of no specific aid. However, in in- stances where they furnish direct assistance, they have been liberally used. The opinions of the courts are frequently given to amplify and enforce the digested case. Opinions often gather, analyze, approve, re- ject or distinguish cases, and are worthy of careful study. In connec- tion with the statutes are given explanatory discussions. They are taken, when possible, from the notes of the original revisers, or other authoritative sources. When such material is not available, concise, plain and practical notes have been written. The decisions are ar- ranged in chronological and topical ord«r, and at least once digested, but when oftener employed, a briefer abstract is given, with a cross PREFACE. V reference to the place of fuller digest A useful part of the work is the case index placed at the head of a digest of cases, when the sub- ject treated presents numerous features. This permits ready ascertain- ment of the cases bearing upon any special phase of the subject, and enables the examiner at once to consult them in their digested form. The case index in some instances consists of rules and elsewhere there is but a suggestion of the topic. It sometimes happens that authorities not digested have been annotated upon the case index. The general plan of the work is similar to that employed in treating the " Law of Negligence." From the large and continued use of that work, it may be inferred that such a plan has been found convenient EDWARD B. THOMAS, 29 Liberty St, New York. December 1, 1897. TABLE OF CONTENTS. WHO MAY TAKE AND CREATE ESTATES. I. CITIZENS, p. 1. II. ALIENS, p. 10. III. COEPOEATIONS, pp. 34, 1709, 1428, 1480. IV. INFANTS, IDIOTS, AND PEESONS OF UNSOUND MIND, pp. 47, 1709. Y. MAEEIED WOMEN, p. 57. VL PEESONS " CIVILLY DEAD," p. 74. VIL STATE OE NATION, p. 75. CREATION AND DIVISION OF ESTATES. I ENUMEEATION OF ESTATES, p. 79. IL ESTATES IN FEE SIMPLE AND FEE SIMPLE AB- SOLUTE, p. 80. m. ESTATES TAIL ABOLISHED; EEMAINDEES THEEEON, p. 83. IV. FEEEHOLDS, p. 86. v. ESTATES OF INHEEITANCE, p. 87. YL ESTATES FOE LIFE, p. 87. I. WHETHER AN ESTATE IS IN FEE OR FOR LIFE, pp. 87, 1709. 1. BULE IN SHELLEY'S CASE, pp. 87, 1606. 8. EFFECT OF POWERS IN CREATING A FEE, pp. 93, 955. 1. POWBS OF 8AXE AND DISPOSITION, p. 93. 8. POWER TO USB OB CONSUME THE PBINCIPAL, p. 106. 3. POWER TO USB PRmCIPAL FOB SUPPORT, p. 111. vm TABLE OF CONTENTS. VI. ESTATES FOR LIFE — (Continued). I. WHETHER AN ESTATE IS IN FEE OR FOR LIFE — (Continued). ■ / 3. PRECATORY CLAUSES, pp. 113, 1709, 1643. I. REPUGNANT LIMITATIONS, pp. 115, 1710. 1664. 5. CHARGE OF LEGACY ON DEVISEE, pp. 129, 1338. 6.' ESTATE ENLARGED TO FEE ON CONDITION, p. 139. n. RIGHTS AND DUTIES OF LIFE TENANT, pp. 130, 1710. 1. ACCRETIONS TO THE CORPUS, p. 130. 2. CONTRACTS OF PURCHASE-PAYMENT OF, p. 132. 3. CROPS, p. 133. 4. DIVIDENDS, pp. 133, 1710. 5. ENCROACHMENTS ON THE PRINCIPAL, p. 135. 6. EXPENSES OF THE ESTATE, pp. 135, 1710. 7. FORFEITURE, p. 136. S. IMPROVEMENTS, pp. 136, 1710. 9. INCOME-WHEN PAYMENT OF, BEGINS, p. 137. 10. INCOME-WHETHER LIFE TENANT TAKES NET, p. 137. 11. LIFE TENANT HOLDING OVER, p. 138. 12. MORTGAGES AND INTEREST THEREON, pp. 138, 1710. 13. RENTS-APPORTIONMENT OF, p. 141. 14. TAXES AND ASSESSMENTS, pp. 142, 1710. 15. WASTE, p. 145. 16. WHAT CONSTITUTES THE CORPUS, p. 148. m. POSSESSION OF CORPUS BY LIFE TENANT. 1. WHEN LIFE TENANT ENTITLED TO POSSESSION OF THE CORPUS WITHOUT SECURITY, pp. 149, 1710. 2. WHEN LIFE TENANT ENTITLED TO POSSESSION OF THE CORPUS UPON GIVING SECURITY, pp. 151, 1710. 3. WHEN LIFE TENANT IS NOT ENTITLED TO POSSESSION OF THE CORPUS, p. 154. 4. INTRENCHMENT ON THE CORPUS BY REMAINDER- MAN, p. 155. rV. DOWER, p. 156. V. TENANCY BY THE CURTESY, p. 204. VI. PRESUMPTION OF DEATH OF LIFE TENANT, p. 332. VIL LEASES BY LIFE TENANT, p. 333. VIII. RESTRICTIONS ON CREATION OF LIFE ESTATES, p. 223. TABLE OF CONTENTS. IX VII. CHATTELS REAL, p. 225. I. ESTATES FOR YEARS, p. 235. II. ESTATES FOR LIFE OF THIRD PERSON, p. 229. VIIL CHATTEL INTERESTS, p. 230. I. ESTATES AT WILL, p. 230. II. ESTATES BY SUFFERANCE, p. 230. IX. ESTATES IN POSSESSION AND IN EXPECTANCY, p. 230. X ESTATES IN EXPECTANCY, p. 231. I. REVERSIONS, p. 231. II. FUTURE ESTATES, p. 382. 1. REMAINDER, p. 233. 2. FUTURE ESTATES OTHER THAN REMAINDERS, p. 234. 3. CONTINGENT REMAINDER ON TERM OP YEARS, p. 339. i. ESTATE FOR LIFE AS REMAINDER ON TERM OF YEARS, p. 240. 5. MEANING OF "HEIRS" AND "ISSUE " IN CERTAIN RE- MAINDERS, p. 240. 6. CREATION OF FUTURE AND CONTINGENT ESTATES, p. 241. 7. FUTURE ESTATES IN THE ALTERNATIVE, p. 242. 8. FUTURE ESTATES VALID THOUGH CONTINGENCY IMPROBABLE, p. 243. 9. CONDITIONAL LIMITATIONS, p. 244. 10. WHEN HEIRS OF LIFE TENANT TAKE AS PURCHASERS, p. 245. 11. WHEN REMAINDER NOT LIMITED ON CONTINGENCY DEFEATING PRECEDENT ESTATE TAKES EFFECT, p. 246. 12. POSTHUMOUS CHILDREN, pp. 246, 1702. 13. WHEN EXPECTANT ESTATES ARE DEFEATED, p. 247. 14. EFFECT ON VALID REMAINDERS OF DETERMINATION OF PRECEDENT ESTATE BEFORE CONTINGENCY, p. 250. 15. QUALITIES OF EXPECTANT ESTATES, p. 251. 16. VESTED AND CONTINGENT ESTATES, p. 252. 17. VESTED ESTATES-CASES, pp. 258, 1717. 18. CONTINGENT ESTATES-GASES, pp. 308, 1719. 19. DEATH-ESTATES ON CONTINGENCY OF, p. 346. 20. LIMITATION OF SUCCESSIVE LIFE ESTATES, p. 365. TABLE OF CONTENTS. X. ESTATES IN EXPECTANCY — (Continued), n. FUTURE ESTATES— (Continued). 21. REMAINDERS IN ESTATES FOR LIFE OF THIRD PERSON, p. 365. SB. WHEN REMAINDERS TO TAKE EFFECT IF ESTATE BE FOR LIVES OF MORE THAN TWO PERSONS, p. 367. 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP, pp. 367, 1719. 24. LIMITATIONS OF CHATTELS REAL, p. 498. 25. DISPOSITION OF RENTS AND PROFITS, p. 498. XI. ACCUMULATIONS, pp. 499, 1721. XIL ESTATES IN SEVERALTY, JOINT TENANCY AND IN COMMON, pp. 531, 1702, 172L I. ESTATES BY THE ENTIRETY, p. 531. XIIL WHEN EXPECTANT ESTATES ARE DEEMED CREATED, p. 560. USES AND TRUSTS. L EXECUTED USES EXISTING— CONFIRMED AS A LEGAL ESTATE, p. 571. IL CERTAIN USES AND TRUSTS ABOLISHED, p. 571. m. WHEN RIGHT TO POSSESSION CREATES LEGAL OWNERSHIP, p. 571. IV. TRUSTEE OF PASSIVE TRUST NOT TO TAKE, p. 573. V. RESULTING TRUSTS, pp. 578, 1722. I. GRANT TO ONE WHERE CONSIDERATION IS PAID BY ANOTHER, p. 578. n. TRUSTS ARISING FROM A FIDUCIARY RELATION, p. 590. III. PAROL TRUSTS— SECRET TRUSTS, p. 594 rV. TRUSTS IMPOSED IN CASES OTHERWISE THAN ABOVE, TO PREVENT FRAUD AND MISCAR RIAGE OF JUSTICE, p. 605. TABLE OF CONTENTS. Xi V. EESTLTINGTEUSTS — (Continued). V. FOLLOWING TRUST FUNDS, p. 610. VI. BONA FIDE PURCHASERS PROTECTED, p. 614. VI EXPRESS TRUSTS, p. 616. I. PURPOSES FOR WHICH EXPRESS TRUSTS MAY BE CREATED, p. 616. 1. WHEN A VALID EXPRESS TRUST IS CREATED, pp. 616, 1723. 1. TRUSTS FOR SUPPORT, pp. 643, 1723. II. HOW AN EXPRESS TRUST IS CREATED, pp. 649, 1728. 1. TRUST ARISING FROM DEPOSITS IN BANK, pp. 66T, 1726. 8. TRUSTS ARISING FROM CONTRACTS OF INSURANCE, p. 681 m. INDESTRUCTIBILITY OF AN EXPRESS TRUST, pp. 6.^3. 1734. IV. DURATION AND TERMINATION OF AN EXPRESS TRUST, pp. 692, 1724. VIL CERTAIN DEVISES TO BE DEEMED POWERS, p. 702. VIII. SURPLUS INCOME OF TRUST PROPERTY LIABLE TO CREDITORS, pp. 703, 1726. IX, WHEN AN AUTHORIZED TRUST IS VALID AS A POWER, pp. 710, 878. X TRUSTEE. L TRUSTEE'S TITLE, p. 711. 1. TRUSTEE OF AN EXPRESS TRUST TO HAVE THE WHOLE ESTATE, p. 711 2. QUALIFICATION OF LAST SECTION, p. 713. 3. INTEREST REMAINING IN GRANTOR OF EXPRESS TRUSTS, p. 712. II. WHO MAY BE A TRUSTEE, p. 715. 1. DISABILITV WITH REGARD TO TAKING TITLE, p. 715. 3. DISABILITY WITH REGARD TO INTEREST, p. 716. m. DUTIES OF A TRUSTEE, p. 718. 1. WHETHER THE TRUST DUTY IS ANNEXED TO THE OFFICE OR THE PERSON, p. 718. 2. HE CAN NOT GAIN PERSONAL PROFIT FROM TRUST PROPERTY, pp. 727, 1726. Sn TABLE OF CONTENTS. X. TKUSTEE — (Continued). III. DUTIES OF A TRUSTEE — (Continued). 3. LIMITATION OF AUTHORITY, p. 738. 4. MANNER OF EXECUTING THE AUTHORITY, p. 739. 5. INVESTMENT, pp. 741, 1727. IV. PERSONAL LIABILITY OF THE TRUSTEE, p. 747. 1. FOR NEGLIGENT OR WRONGFUL ACT, p. 747. 2. FOR CONTRACTS, pp. 773, 1727. 3. AVOIDING PERSONAL LIABILITY BY CHARGING THE ESTATE, p. 777. 4. WHEN CREDITORS HAVE A DOUBLE REMEDY AGAINST THE TRUSTEE AND AGAINST THE ESTATE, p. 778. 5. INTEREST, p. 779. v. COMMISSIONS, pp. 782, 1737. VI. EXPENSES, p. 800. VII. PARTIES, p. 805. VIII. APPOINTMENT, ACCEPTANCE AND RENUNCIA- TION. (See Real Prop. L., sec. 91, pp. 837, 841, 1728.) IX. RESIGNATION AND REMOVAL. (See Real Prop. L., sec. 93, pp. 843, 1738.) XL BENEFICIARY, p. 811. I. BENEFICIARY'S INTEREST, p. 811. 1. ITS NATURE, p. 811. 2. WHAT TRUST INTEREST MAY BE ALIENATED, pp. 813, 1724. II. WHO MAY BE A BENEFICIARY, p. 819. 1. CERTAINTY OF BENEFICIARY, p. 821. III. BENEFICIARY'S RIGHTS AND REMEDIES, pp. 811, 825. XII. TRANSFEREE OF TRUST PROPERTY PROTECTED, p. 828. XIII. WHEN TRUSTEE MAY CONVEY TRUST PROP- ERTY, p. 829. XIV. WHEN TRUSTEE MAY LEASE TRUST PROPERTY, p. 830. TABLE OF CONTENTS. Xlll XY. NOTICE TO BENEFICIARY WHERE TRUST PROP- ERTY IS CONVEYED, MORTGAGED OR LEASED, p. 830. XVI. PERSON PAYING MONEY TO TRUSTEE PRO- TECTED, p. 835. XVII. V7HEN ESTATE OF TRUSTEE CEASES, p. 836. XVIII. TERMINATION OF TRUSTS FOR THE BENEFIT OF CREDITORS, p. 837. XIX APPOINTMENT OF TRUSTEE, pp. 837, 1728. I. UPON DEATH, p. 837. II. UPON RENUNCIATION OR FAILURE TO APPOINT IN TRUST INSTRUMENT, pp. 837, 841. XX. RESIGNATION AND REMOVAL OF TRUSTEE AND APPOINTMENT OF SUCCESSOR, pp. 843, 1728. XXL CHARITABLE USES, p. 847. POWERS, pp. 867, 1729. CONDITIONS, pp. 1022, 1731. WILLS. I TESTAMENTARY INSTRUMENTS, p. 1123. I. WHAT IS A WILL, p. 1133. . II. NUNCUPATIVE WILLS, p. 1137. III. AUTOGRAPHIC WILLS, p. 1180 IV. MUTUAL WILLS, p. 1180. V. DUPLICATE WILLS, p. 1131. VI. CONDITIONAL WILLS, p. 1183. VII. CODICIL, p. 1138. VIII. INCORPORATION BY REFERENCE, p. 1140. IX ALTERATION, p, 1144. XIV TABLE OF CONTENTa n. EXECUTION OF WILLS, p. 1147. I. SUBSCRIPTION, STATUTE, p. 1147, CASES, pp. 1148, 1731. II. ACKNOWLEDGMENT, STATUTE p. 1147, CASES, pp. 1156, 1732. III. PUBLICATION, STATUTE, p. 1147, CASES, p. 1162. IV. ATTESTATION, p, 1168. V. EVIDENCE OP DUE EXECUTION, pp. 1174, 1733. VI. SUBSCRIBING WITNESS ALSO A BENEFICIARY, p. 1186. III. WILLS WRONGFULLY PROCURED, p. 1190. I. BY UNDUE INFLUENCE, pp. 1190, 1732. II. BY DURESS OR FRAUD, p. 1210. III. BY CRIME, p. 1210. IV. REVOCATION OF WILLS, p. 1212. I. GENERAL STATUTE, p. 1212. IL MARRIAGE AND BIRTH OF ISSUE, p. 1224. III.- SUBSEQUENT MARRIAGE OF TESTATRIX, pp. 1226, 1732. rV. EFFECT OF COVENANT TO CONVEY, p. 1326. V. EFFECT OF CHARGE OR INCUMBRANCE, p. 1237. VI. EFFECT OF CONVEYANCE, p. 1237. VII. POST TESTAMENTARY CHILD, p. 1230. VIII. REVIVAL OF PRIOR BY CANCELLATION OF SUB- SEQUENT WILL, p. 1233. IX. WHEN STATUTE TOOK EFFCT, p. 1233. V. PROBATE, pp. 1235, 1733. I. NECESSITY FOR PROBATE, p. 1335. II. EFFECT OF SURROGATE'S DECREE ON PERSON ALTY, p. 1238. III. EFFECT OF SURROGATE'S DECREE ON REALTY, pp. 1239, 1783. IV. POWER TO OPEN DECREE OF PROBATE, p. 1243. TABLE OF CONTENTS. XV V. PROBATE — (Continued). V. POWER TO REVOKE PROBATE, p. 1248. 1. WHEN APPLICATION MUST BE MADE, p. 1251. 2. WHO MUST BE CITED, p. 125.3. 3. EFFECT OF PENDINQ PROCEEDINGS ON POWER OP EXECUTOR, p. 1253. 4. TESTIMONY UPON THE HEARING, p. 1255. 6. THE DECREE, p. 1255. 1. APPEAL FROM DECREE, p. 1357. 6. VALIDITY OF PROBATE— HOW DETERMINED, p. 1257. VI. JURISDICTION OF SURROGATE TO PROBATE A WILL, p. 1261. VII. JURISDICTION OP OTHER COURTS TO ESTABLISH A WILL, p. 1273. 1. WILLS LOST, DESTROYED, OR WITHOUT THE STATE p. 1277. VIII. POWER OF SURROGATE TO CONSTRUE A WILL, p. 1284. IX. POWER OP SUPREME COURT TO CONSTRUE A WILL, p. 1289. X. PROCEEDINGS FOR PROBATE — OMISSIONS AND IRREGULARITIES, p. 1295. XI. ANCILLARY LETTERS, p. 1301. VI. PROOF OF ANCIENT WILLS, p. 1810. YII. TESTAMENTARY GIFTS, p. 1312. I. AGREEMENT INDUCING OR PREVENTING TESTA- MENTARY GIFTS, p. 1318. n. CONFLICT OF LAWS, pp. 1318, 1733. 1. FOREIGN EXECUTORS, pp. 1335, 1734. III. CHARGING GIFTS AND DEBTS ON PROPERTY AND PERSONS, p. 1338. rV. WHEN BENEFICIARY CAN NOT DISPUTE WILL, pp. 1375, 1734. XVI TABLE OF CONTENTS. VIL TESTATMBNTARY GIFTS — (Continued). V. BESCRIPTION OP BENEFICIARY, p. 1381. VI. DESCRIPTION OP GIPT, p. 1392. VII. CUMULATIVE GIPTS, p. 1426. VIII. GIPTS TO A CLASS, pp. 1428, 1480. IX. GIPTS TO CHILDREN, HEIRS, ISSUE, p. 1439. X. GIFTS TO BROTHERS AND SISTERS, p. 1463. XI. GIPTS TO NEPHEWS AND NIECES, p. 1464. XII. GIPTS TO HEIRS OR NEXT OF KIN, p. 1465. XIII. GIFTS TO DESCENDANTS, p. 1472. XIV. GIFTS TO CREDITORS, p. 1473. XV. GIFTS TO DEBTORS, p. 1477. XVI. GIPTS TO CORPORATIONS, pp.1428. 1480, XVII. GIFTS TO EXECUTORS, p. 1482. XVIII. GIFTS FOR SUPPORT, pp. 643, 1105, 1484. XIX. WHETHER BENEFICIARIES TAKE PER STIRPES OR PER CAPITA, p. 1489. XX. SPECIFIC LEGACIES, p. 1494. XXI. GENERAL LEGACIES, p. 1501. XXII. DEMONSTRATIVE LEGACIES, p. 1503. XXIII. PAYMENT OF LEGACIES, p. 1503. 1. RESTITUTION BY LEGATEES, pp. 15U, 1617. XXrV. WHEN INTEREST ON LEGACIES BEGINS, p. 1517. XXV. ANNUITIES, p. 1839. XXVI. ADVANCEMENTS, pp. 1541, 1683, 1704. XXVII. ABATEMENT OP LEGACIES, p. 1552. XXVIII. ADEMPTION OP LEGACIES, p. 1555. XXIX. LAPSED LEGACIES AND DEVISES, p. 1558. XXX. RESIDUARY GIPTS, p. 1568. XXXI. WHETHER GIFT OF INCOME IS GIFT OF PRINCIPAL, p. 1608. XXXII. GIFTS BY IMPLICATION, p. 1605. TABLE OF CONTENTS. XV 11 YII. TESTAMENTARY GIFTS — (Continued). XXXIII. GIFTS CREATING DISINHERITANCE, p. 1614. XXXIY. LIABILITY OF BENEFICIARIES, HEIRS, NEXT OF KIN, ETC., FOR DECEDENT'S DEBTS, pp. 1514, 1617. VIII. CONSTRUOTIOJST OF WILLS, p. 1641. STATUTE OF DISTRIBUTION, p. 1677. STATUTE OF DESCENT, p. 1688. WHO MAY TAKE AND CREATE ESTATES. I. CITIZENS, p. 1. II. ALIENS, p. 10. III. CORPORATIONS, pp. 47, 1709. IV. INFANTS, IDIOTS, AND PERSONS OP UNSOUND MIND, pp. 34, 1709. V. MARRIED WOMEN, p. 57. VI. PERSONS " CIVILLY DEAD," p. 74. VIL STATE OR NATION, p. 75. L CITIZENS. I. CAPACITY TO HOLD AND TRANSFER REAL PROPERTY, p. 1. 1. HEIRS OF FATllIOTIC INDIANS, p. 2 II. WHO IS A CITIZEN, p. 2. Ill NATURALIZATION, p. 7. L CAPACITY TO HOLD AND TRANSFER REAL PROPERTY. U. S. Rev. Stat, sec. 1978, oh. 31, v. 14, p. 27. (April 9, 1866.) 'All citizens of the United States shall have the same right in every state and territory as is enjoyed by white citizens thereof, to inherit, purchase, lease, sell, hold and convey real and personal property." Real' Property Law, L. N. T. 1896, ch. 547, sec. 2 (took efifect Octo- ber 1, 1896) "A citizen of the United States is capable of holding real property within this state, and of taking the same by descent, devise or purchase." 1 R. 8. (N. Y.) 719, sec. 8, Banks's 9th ed. 1784 (took effect Jan. 1, 1830, repealed L. 1898. ch. 547, sec. 300). "Every citizen of the United States is capable of iiold- ing lands within tills state, and of taking the same by descent, devise or purchase." 1 I I. CITIZENS. Real Property Law, sec. 3. L. 1896, ch. 547, sec. 3. "A person other than a minor, an idiot, or person of unsound mind, seized of or entitled to an estate or interest in real property, may transfer such estate or interest." 1 R. S. (N. Y.) 719, sec. 10, Banks's 9th ed., p. 1784 (took effect Jan. 1, 1830, repealed L. 1896, ch. 547, sec. 300). "Every person capable of holding lands (except idiots, persons of unsound mind and infants), seized of, or entitled to, any estate or interest in lands, may alien such estate or interest at liis pleasure, with the effect, restrictions and regulations, provided by law." 1. HEIRS OF PATRIOTIC INDIANS.* L. 1896, ck 547, sec. 9. "The heirs of an Indian to whom real property was granted for military services rendered during the war of the revolution, may take and hold such real property by descent as if they were citizens of the state at the time of the death of their ancestors- A conveyance of such real property to a citizen of this state, executed ■fay such Indian or his heirs after March seventh, eighteen hundred and nine, is valid, if executed with the approval of the surveyor-general or state engineer and surveyor indorsed thereupon. "f Substantially same as R. S. 1830, sec. 13, except — L. 1896 — By approval of state engineer and surveyor. L. 1880, sec. 20 — By approval of surveyor-general. L. 1892, ch. 679, sec. 2, Banks's 9th ed. N. Y. R S., p. 202. "* * * a native Indian may take, hold and convey real property the same as a citizen * * *." Substantially the same as L. 1848, ch. 87, sec. 4, Banks's 9th ed. N. Y. R. S., p. 3068, repealed by L. 1896, ch. 547, sec. 300 NoTK. — L. 1893, ch. 679, sec. 2, not in terms repealed. 1 B. S. 719, sec. 11, Banks's 9th ed. N. Y. R. 8., p. 1784 (took effect Jan. 1, 1880). "No purchase or contract for the sale of lands in this state, made since the fourteenth day of October, one thousand seven hundred and seventy-five, or which may here- after be made, with the Indians in this state, is valid, unless made under the authority and with the consent of the legislature of this state." Repealed by L. 1896, ch. 547, sec. 300. 1 R. S. 719, sec. 13, Banks's 9th ed. N. Y. R. S., p. 1784 (took effect Jan. 1, 1830). repealed by L. 1896, ch. 547, sec. 300. "No Indian residing within this state can make any contract for or concerning the sale of any lands within this state, or in any manner give, sell, devise or otherwise dispose of any such lands, or any interest therein, without the authority and consent of the legislature of this state, except as hereinafter provided." Note to preceding section.— 3 R. L. 175, sec. 55, ch. ft? (passed Apr. 10, 1813), grants the same privileges to heirs of patriotic Indians, but validated only subsequent conveyances and pro- vided that no prior conveyance should be thereby confirmed. II. "WHO IS A CITIZEN. Fourteenth amendment to Constitution of U. S., sec. 1. "All per- sons born or naturalized in the United States, and subject to the juris- 'See. as to citizenship of Indians, p. 3. +1 R. S. 719, sec. 13, Banks's 9th ed. N. Y. R. S., p. 1784, practically same as sec. 9, oh. .547, L. 1896, supra. II. WHO IS A CITIZEN. 6 diction thereof, are citizens of the United States, and of the state wherein they reside." Meaning of "subject to the Jurisdiction thereof " in fourteenth amendment con- strued : An Indian who has completely severed his tribal relation and surrendered himself to the jurisdiction of the United States, and is a bona fide resident of the state of Ne- braska and city of Omaha, does not thereby become a citizen. mk V. Wilkins, 112 U. S. 94. From opinion. — (Speaking of the first section of fourteenth amendment.) " This section contemplates two sources of citizenship, and two only; birth and naturaliza- tion. The persons declared to be citizens are 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof.' The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth can not become so after- wards, except by being naturalized either individually, as by proceedings under the naturalization acts, or collectively as by the force of a treaty by which foreign terri- tory is acquired." * * * "It is also worthy of remark, that the language used, about the same time, by the very congress which framed the fourteenth amendment, in the first section of the Civil Rights Act of April 9, 1866, declaring who shall be citizens of the United States, is 'all persons born in the United States, and not subject to any foreign power, ex- cluding Indians not taxed. ' 14 Stat. 27; R. S., sec. 1992." Miller, J., says in the course of his decision in the "Slaughter-house" cases (16 Wall, 36, at p. 73 [1872]): "the phrase 'subject to its jurisdiction' was intended to ex- clude from its operation children of ministers, consuls, and citizens or subjects of foreign states born within the United States." Corporations are not citizens within the meaning of this section of the fourteenth amendment. JDuquesne Club v. Penn Bank of Pitisburgh, 35 H\m, 390. From opinion. — "The several decisions of the courts of the United States which have hitherto held that corporations are not citizens within the meaning of the Con- stitution, are, therefore, applicable to and controlling of the construction to be given to the new amendments." Paul v. Virginia. 8 Wall. 181; Connor v. Elliot, 18 How. (U. S.) 591; Lafayette Ins. Co. v. French, 18 How. (U. S.) 407 ; Ducat v. Chicago, 10 Wall. 410. United States Eevised Statutes, sec. 1992, eh. 31, sec. 1, v. 14, p. 27 (Apr. 9, 1866). "All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States." Sec. 1993, eh. 71, sec. 1, v. 10, p. 604 (Feb. 10, 1855), ch. 28, sec. 4, V. 2, p. 155 (Apr. 14, 1802). "All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States ; but the rights of citizen- ship shall not descend to children whose fathers never resided in the United States." United States Revised Statutes, sec. 1994, ch. 71, sec. 2, v. 10, p. 604 {Feb. 10, 1855). "Any woman who is now or may be hereafter married to a citizen of the United States, and who might herself be lawfully naturalized shall be deemed a citizen." * I. CITIZENS. Kelley v. Owen, 7 "Wall. 496 (1868). From opinion. — " The case turns upon the construction given to the second sec- tion of act of Cong, of Feb. 10, 1855, which declares ' that any woman who might lawfully be naturalized under the existing laws, married, or who shall be married to a citizen of tlie United States, shall be deemed and taken to be a citizen.' As we con- strue this act, it confers the privileges of citizenship upon women married to citizens of the United States, if they are of a class of persons for whose naturalization the pre- vious acts of congress provide The terms ' married' or 'who shall be married' do not refer in our judgment to the time when the ceremony of marriage is celebrated, but to a state of marriage. * * * jjig citizenship whenever it exists, confers, under the act, citizenship upon her. The terms ' who might lawfully be naturalized under existing laws ' only limit the application of the law to free white women." An alien woman married to a naturalized citizen may take lands by descent under Act of Congress, Feb. 10th, 1855. Halsey v. Beer, 53 Hun, 366. From opinion. — " The language employed in this law to denote the intention of its makers refers to tho inherent capacity of the woman and not to her present quali- fications. Its language is of potentiality, capacity or power as distinguished from ac- tuality. Any woman possessing the natural capacity or power to enter upon the path leading to judicial naturalization such as race and blood, becomes by marriage with a citizen invested with his citizenship." See, also. People v. Newell, 38 Hun, 78. United States Revised Statutes, sec. 1995, ch. 172, sec. 3, vol. 17, p. 13-1 (May 18, 1872), relates to the citizenship of persons born in the territory of Oregon. Sec. 1996, ch. 79, sec. 21, vol. 13, p. 490 (March 3, 1865), relates to forfeiture of citizenship for desertion. Sec. 1997, ch. 28, vol. 15, p. 14 (July 19, 1867), relates to certain soldiers and sailors excepted from operation of sec. 1996. Sec. 1998, ch. 79, sec. 21, vol. 13, p. 490 (Marcli 3, 1865), provides that those avoiding draft are subject to penalties of sec. 1996. Sec. 1999, ch. 249, sec. 1, vol. 15, p. 223 (July 27, 1868), right of expatriation declared. Sec. 2172, ch. 28, sec. 4, vol. 2, p. 155 (April 14, 1802.) " The chil- dren of persons who have been duly naturalized under any law of tbe^ United States, or who, previous to the passing of any law on that sub- ject, by the government of the United State.-*, may have become citizens of any one of the states, under the laws thereof, being under the age of twenty-one years at the time of the naturalization of their parents, shall, if dwelling in the United States, be considered as citizens thereof ; and the children of pei'sons who now are, or have been citizens of the ' United States, shall, though born outside the limits and jurisdiction of the United States, be considered as citizens thereof." This section grants citizenship to minor child though non-resident at the time of its father's naturalization, provided it was a resident at the time of the passage of the act. Campbell v. Gardon and wife, 6 Cranch, 176. See, also. People v. Newell, 38 Hun, 78; Young v. Peck, 21 Wend. 380; s. c. 26 id. 613; West v. West, 8 Paige, 432. In the nbsence of any law of the United States governing the particular case, the question, whether one born out of the United States is a citizen, is to be determined II. WHO IS A CITIZEN. 5 by the common law, as it existed, irrespective of English statutes, at the adoption of the Federal Constitution. At common law, the duty of allegiance and the rights of citizenship passed by descent, the child following the condition of the father ; so that, if a father, out of the realm, was within the allegiance of the king, his child by an alien wife was born a subject of the British crown. The statute (25 Edw. Ill, oh. 2), upon this point, is a declaratory, and not an en- abling act. Whether a citizen is capable of renouncing his allegiance without the consent of his government, or may when his government had not prohibited it, qumre. But, if he may, he can not divest himself of his citizenship until he becomes the ■citizen of another government ; and this he can not do until he arrives at full age. Where a citizen of the United States went to Peru at the age of eighteen years, with the intention of indefinite continuance there for the purpose of trading, but took no steps to be naturalized in Peru, or to indicate an intention of a permanent change of domicil, otherwise than as above stated, his child, born to him in Peru, of a wife the native of that country, is a citizen of the United States. A finding, as of a fact, that the father voluntarily " expatriated " himself, with the intention of becoming a permanent resident of Peru, was regarded as immaterial. Such a child may, it seems, be subject to a double allegiance, and, upon arriving at his majority, may elect to retain the one and repudiate the other ; but, until such election, he retains all the rights of citizenship in both countries, though discharging its duties in but one. Ludlam v. Lxullam. 26 K Y. 356, aflf'g 3 Barb. 486. From opinion. — "The question, who are citizens of the United States, must de- pend upon the laws of the United States. In 1790, Congress passed an act declaring that ' children of citizens of the United States that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens.' (1 U. S. Statutes at Large, 103.) In 1795 the following provision was substituied for that previously existing, viz. : ' The children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States.' (1 U. S. Statutes at Large, 445, sees. 3, 4.) In 1802, con- gress repealed the law of 1795 and enacted that ' the children of persons who now are or have been citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States.' This provision continued unchanged, until 1855, when an act was passed, declaring both wife and children, in a case like the present, to be citizens. (10 Statutes at large, 604.) "As the act of 1802 did not embrace the children of those who might thereafter become citizens, and as the the father of the defendant was born after 1802, and died before 1855, this case does not come within the provisions of any of the statutes of the United States on the subject. The same question is presented, therefore, in this respect, which arose in Lynch v. Clark, (1 Sand. Ch. R. 583), where it is, I think, very clearly shown that, in the absence of any statute, or any decisions of our own •courts, state or national, on the subject the question of citizenship can only be determined by reference to the English Common Law, which, at the time of the adoption of the Constitution of the United States, was to a greater or less extent, recognized as the law of all the states by which that Constitution was adopted. "'This conclusion does not involve the question very earnestly debated soon after the organization of the government, whether the common law of Eneland became the law of the Federal Government, on the adoption of the Constitution. It only assumes what has always been conceded, that the common law may properly be resorted to in determining the meaning of terms used in the Constitution, where that instrument itself does not define them. * * * " The Constitution uses repeatedly the terms, 'citizen of the United States.' but •does not define them. Our statute, above referred to, uses the same terms and also leaves them undefined. It becomes necessary for the court to decide whether the defendant, under the circumstances of his birth and life, is a citizen of the United states within those terms." (The opinion then states as follows :) 6 I. CITIZENS. By statute (7 Edw. III.) children of British subjects, in the service of the king, though born beyond the sea, were capable of inheriting. By statute (25 Edw. III., Ch. 2) children " which hencefm-th shall be born out of liegeance of the king, whose fathers and mothers, at the time of their birth, be and shall be at the faith and liegeance of the king of England, shall have and enjoy the same benefit and advantage, to have and bear inheritance within the same liegeance as the other inheritors aforesaid, in time to come, so also that the mothers of such children passed the sea by the license and will of their husbands." The above statutes are here considered in connection with their history and decided to be declaratory of the common law and not enabling acts. 7 Coke, 1 ; 6 James, 1 (Calvin's Case) ; Brooke's Abridgment, Title Denizen, 6 ; Brooke's Abridgment, Title Denizen, 21 ; Rex v. Eaton, (Litt. 23) ; Collingwood v. Pace, 1 Vent. 413, 422 ; 1 Jenk. Cent, case 2. The opinion proceeds : '■ These opinions are confirmed by that of the court of King's bench in the case of Bacon v. Bacon (Cro. Cas. 601). There children born in Poland were held not to be aliens. It is true, the father and mother in that case were both English ; but the court said it would make no difference, though the mother were an alien. This was not put as I understand the case solely upon the statute by any of the judges. As the case before them came directly within the terms of the statute, it was natural that they should refer to it. But they seem to place their decision as much upon the common law as the statute. Their language is, 'he being an English merchant, and residing there for merchandising, his children shall, by the common law ; or rather, as Berkeley said, by the statute of 35 Edw. III., be accounted the king's lieges, as their father is.' Prom this alone we might not be able to determine what the judges thought as to the common law. But they also say, that it would not be material, though the wife were an alien ; for which they gave this reason, viz. : that she is ' sub potestate mri and. quasi undi&Ti Vac allegiance of the king.' This can have no reference to the statute. It is the common law argument upon the subject, and shows clearly the opinion of the judges to be, that the common law went further than the statute, and denizened the children in all cases where the father was a natural born subject." * * * ' ' The domioil of the minor child is always that of the father during his life (West- lake on Priv. Int. Law, 35 ; 5 Ves. 750, 787), and I think the same rule applies in regard to citizenship ; that the citizenship of the father is that of the child so far as the laws of the country of which the father is a citizen is concerned _; but the child from the circumstances of his birth, in a country where the father is not a citizen, may acquire rights, and be subject to duties in regard to such country which do not attach to the father. It does not militate against this position that by the law of England the children of alien parents, born within the kingdom are held to be citizens. * * * go, as I suppose, a child may be in a position which will enable him to elect, when he becomes of age, of which of two countries he will become a permanent citizen. * * I do not apprehend that if a child, born in England of alien parents, should, before arriving- at manhood, return to and become a permanent resident of the country to which his parents belonged, without any intention of ever returning to England, or of claim- ing any rights as a natural born citizen of that country, he would still be claimed as a subject of the British crown, and indictable for the crime of treason if he should take up arms against that country," Westlake Pr, Int. Law, Ch. 2, sec. 12 ; Opinion of Northey, Att. Genl. in case of Gillingham, Chalmer's Colonial Opinions, 645. The law and policy of expatriation are considered, but the case is put upon the more narrow and technical ground, that at the time of the alleged expatriation the defend- ant was a minor and therefore incapable of making any election with regard to his citizen.ship." A chi'd born here, of non-resident parents, and now residing here, is prima facie a citizen of this state, notwithstanding his mother was only here for the purpose of being confined.* An alien may take by purchase, and hold against all parties except the state claim- ing under an inquest of ofBce. A person coming to this country from Scotland and departing prior to our Revolu- tion to reside permanently in Canada, is an alien from the time of the establishment of an independent government here, * A child born in the United States of alien parents, is a, citizen, regardless ot his future residence. Lynch v. Clark, 1 Sand. Ch, .583. III. NATURALIZATION. 7 So also a minor son, though remaining here till after the treaty of peace in charge of relatives, is, by reason of his nonage, incapable of making an actual election, and departing to Canada in obedience to his father's summons, fails to become a citizen of the United States.* Munro v. Merchant, S8 N. Y. 9. A child born of alien parents during a temporary sojourn in New York city is an alien. Lynch v. OJark, 1 Sand. Oh. 583. A person born in this country but who left it in July, 1783, is an alien. Orser v. Hoag, 3 Hill, 79. Persons born here who left the country before the declaration of independence, and never returned, became thereby aliens. Inglia v. Trustees of the Sailors' Snug Harbor, 3 Peters, 99. See, also, Shanks v. Dupont, 3 Peters, 342: Fairfax Devisees v. Hunters' Lessee, 7 Cranch, 603 ; Orr v. Hodgson, 4 Wheat. 453 ; Blights' Lessee v. Rochester, id. 535. Per Thompson, J., in Inglis v. Trustees, etc.: — "Prima facie, and as a general rule, the character in which the American ante noti are to be considered, will de- pend upon, and be determined by, the situation of the party and the election made at the date of the declaration of independence, according to our rule ; or the treaty of peace according to the British rule. But this general rule must necessarily be con- trolled by special circumstances attending particular cases, and if the right of election is at all admitted, it must be determined, inmost cases, by what took place during the struggle, and between the declaration of independence and the treaty of peace. ' The several states composing the Union became entitled, after the declaration of independence, to all the rights and powers of sovereign states, so far at least as regards their municipal relations and hence each was competent as such to claim the allegi- ance of all persons born and residing within its limits, and a person voluntarily residing within the state after such a claim became a citizen. Mcllvaine v. Goxe's Lessee, 4 Cranch, 209. A person born in England before our Revolution and who was never in the United States is an alien. Dawson's Lessees v. Godfrey, 4 Cranch, 331. See further cases on expatriation, Pish v. Stoughton, 3 Johns. Cases, 407 ; Caignet V. Pettit, 3 Dallas, 334 (Sup. Ct. Pa.); Talbot v. Janson, 3 Dall. 133; Shanks v. Dupont, 3 Pet. 343 ; The Santissima Trinidad & The St. Ander, 7 Wheat. 383. III. NATURALIZATION. Const, of U. S., art. 1, sec. 8, subdiv. 4, confers on congress the power to establish a uniform rule of naturalization. Power of naturalization is exclusively in congress. Chirac v. Chirac, 3 Wheat. 269; 2 Dallas, 373 ; Lynch v. Clark, 1 Sand. 583. U. S. Eev. Stat., sec. 2165, ch. 28, sees. 1, 3, vol. 2, pp. 153-155 (April 14, 1802); ch. 186, sec, 4, vol. 4, p. 69 (May 26, 1824); subdiv. 6, ch. 21, sec. 2, vol. 3, p. 259 (Mar. 22, 1816); ch. 116, sec. 2, vol. 4, p. 310 (May 24, 1828), prescribe the formalities of naturalization; also particular provisions with regard to persons residing in the United States before January 29, 1795, and with regard to persons residing in the United States between June 18, 1798, and June 18, 1812. Campbell v. Gordon and wife, 6 Cr. 176; Stark v. Chesapeake Ins. Co., 7 id. 430 ; Chirac v. Chirac, 3 Wheat. 369 ; Osborn v. U. S. Bank, 9 id. 827 ; Spratt v. Spratt, 4 Pet. 893. * See, also, Elmendorf v. Jackson, 7 Johns. 2U. 8 I. CITIZENS. Sec. 2166, ch. 200, sec. 21, vol. 12, p. 597 (July 17, 1862), admits aliens honorably discharged from military service, without previous declaration, upon proof of one year's residence prior to application. Sec. 2167, ch. 186, sec. 1, vol. 4, p. 69 (May 26, 1824). The omis- sion of the previous declaration excused in the case of .certain resident minors under certain circumstances. Sec. 2168, ch. 47, sec. 2, vol. 2, p. 293 (Mar. 26, 1804). "When any alien who has complied with the first condition specified in section 2165" {i. e. previous declaration), "dies before he is actually naturalized, the widow and children of such alien shall be con- sidered as citizens of the United States, and shall be entitled to all the rights and privileges as such, upon taking the oaths prescribed by law.'' Sec. 2169, ch. 254, sec. 7, vol. 16, p. 256 (July 14, 1870). " The provisions of this title shall apply to aliens of African nativity and persons of African descent" Sec. 2170, ch. 42, sec. 12, vol. 2, p. 811 (xMar. 3, 1813). Continued residence of five years shall be required. Sec. 2171, ch. 28, sec. 1, vol. 2, p. 153 (April 14, 1802) ; ch. 36, vol. 3, p. 53 (July 30, 1813), provide that alien enemies shall not be admitted. Sec. 2172, ch. 28, sec. 4, vol. 2, p. 115 (Apr. 14, 1802), provides that children of naturalized citizens shall be ■ deemed citizens. (Quoted above.) Sec. 2173, ch. 133, sec. 5, vol. 16, p. 154 (June 17, 1870). The police court of District Columbia shall have no power to naturalize. Sec. 2174, ch. 322, sec. 29, vol. 17, p. 268 (June 7, 1872). Seamen shall be admitted after three years' service subsequent to declaration upon production of certificate of discharge and good conduct and cer- tificate of declaration, and shall be entitled to protection as a citizen after filing declaration. Sec. 2312, ch. 127, sec. 4, vol. 13, p. 562 (Mar. 3, 1865), allows Stock- bridge Munsee Indians to become citizens. Sec. 4749, ch. 28, vol. 15, p. 14 (July 19, 1867), removes disabilities from certain deserters. Laws of 1882, ch. 126, sec. 14, United States Statutes at Large. "Hereafter no state court or court of United States shall admit Chinese to citizenship ; and all laws in conflict with this act are hereby repealed." Laws of 1894, ch. 165, United States Statutes at Large. Aliens of twenty-one or over, having served five consecutive years in the United Slates Navy or one enlistment in the United States Marine Corps, and III. NATURALIZATION. 9 been honorably discharged, to be admitted to citizenship without pre- vious declaration. A person born within the United States of Chinese parents residing therein, and not engaged in any diplomatic or official capacity under the emperor of China, is a citi- zen of the United States, and hence can not be excluded except in punishment of crime. In re Look Tin Sing, 21 Fed. Rep. 905. By the admission of Nebraska into the Union " upon an equal footing with the original states in all respects whatsoever," citizens of the territory and also those who had declared their intention of becoming citizens, became citizens of the United States. Boyd v. Nebraska, Thayer, 143 U. S. 135. II. ALIENS. I. COMMON LAW RIGHTS OF ALIENS, p. 10. IL DEPOSITION OF RESIDENT ALIEN, p. 11. (Sec. 4 — Real Property Law.) ' III. WHEN AND HOW ALIEN MAY ACQUIRE AND TRANSFER REAL PROPERTY, p. 12. (Sec. 5 — Real Property Law.) IV. EFFECT OF MARRIAGE WITH AN ALIEN, p. 35. (Sec. 6 — Real Property Law.) V. TITLE THROUGH ALIEN, p. 26. (Sec. 7 — Real Property Law.) VI. LIABILITIES OF ALIEN HOLDERS OF REAL PROPERTY, p. 28. (Sec. 8 — Real Property Law.) VII. ALIEN DOWER, p. 29. (Sec. 5 — Real Property Law.) VIII. ALIENISM OF ANCESTOR, p. 30. (Sec. 294 — Real Property Law.) IX. PROPERTY RIGHTS OP ALIENS UNDER TREATIES, p. 33. I. COMMON LAW RIGHTS OF ALIENS. An alien at common law could take real property by conveyance or by devise, could hold the same except against the state, could convey or devise the same subject to the rights of the state;' but he could neither inherit real property himself nor transmit the same by inherit- ance to his heirs, although they were capable of taking property from a citizen either by conveyance, devise, or inheritance.' 1 3 Kent's Com. 53 ; Co. Lltt. 3 ; Comyn's Dig. Alien ; Bacon's Ab. Aliens ; Jackson v. Beach, 1 Johns. Cas. 401 ; Fairfax v. Hunter 7 Cr 619 630 • Governeur v. Robertson, 11 Wheat. 333. 2 3 Kent's Com. 467 ; Coke Litt. 36 and notes 3, 4, 5 ; Calvin's Case, 7 Co. 3oa • 1 Ventr. 417; Mooers v. White, 6 Johns. Ch. 365; Jackson v. Lunn, 3 Johns. Cases 109 ^Mooers v. White, 6 Johns. Ch. 365; Collingwood v. Pace, 1 Sid. 193- 1 Vent' 413'- Co. Litt. 3b; Plowd. 339b. ■330a. ' ' ' ' To the common law right of an alien to take by devise, the statutes have made the following exception : 2 R. S. 57, sec. 4, Banks's 9th ed. N. Y. R S., p. 1876. " Every de- vise of any interest in real property to a person who, at the time of the death of the testator, shall be an alien, not aathorized by statute to II. DEPOSITIOISr OF RESIDENT ALIEN. 11 hold real estate, shall be void. The interest so devised shall descend to the heirs of the testator; if there be no such heirs competent to take, it shall pass under his will to the residuary devisees therein named, if any there be competent to take such interest." Currin v. Finn, 3 Denio, 229; Mick v. Mick, 10 "Wend. 379. The statutes respect- ing aliens modify section 4. Hall v. Hall, 81 N. Y. 180, p. 22. See Goodell v. Jackson, 20 Johns, 694, 707; People v. Etz, 5 Cowen, 314; People V. Lervey, id. 397. By the common law ah alien can take real estate by devise, although he can not hold it as against the state. The statute (2 R. S. 57, sec. 4), which declares that every devise of real property to a person who, at the time of the death of the testator, shall be an alien not authorized by statute to hold real estate, shall be void, does not apply to an alien devisee, born after the death of the testator. The testator devised lands in trust for the use of his daughter, who was an Ameri- can citizen, during her life, with remainder in fee to her issue, and she subsequently died leaving an alien son, born after the death of the testator. Construction. — The son took under the will as against the heirs of the testator. Wadswortli v. WadMoortli, 12 N.Y. 376. See, also, Van Cortlandt v. Laidley, 59 Hun, 161; Wadsworth v. Murray, 16 Barb. 601. A bequest of money to be laid out in lands for the benefit of aliens who are to have the possession and enjoyment, contravenes the statute of wills and is void. 2 R. S. 57, § 4 (Banks's 9th ed. N. Y. R. S. p. 1876). Beekman v. Bonsor, 23 N. Y. 298, digested, p. 857. This section does not apply to personalty. Devise to trustees to pay income to alien is valid. Marx v. MeGlynn, 88 N. Y, 357, digested, p. 819. Beck v. McGillis, 9 Barb. 50. A direction to sell and pay over the proceeds is a gift of money and not of lands, and is valid though the beneficiaries are aliens. Meakinga v. Gromwell, 5 N. Y. 136. See Parker v. Linden, 113 id. 28. At common law an alien may take real estate by purchase and hold same against everybody, except the state. Statutes have made one exception to this (2 R. S. 57, sec. 4), making a devise to an alien, not authorized by statute to take and hold, void. The act of April 21, 1825 (1 R.-S. 720, sees. 15, 16, 17), did not abrogate the above common law rule, but simply produced a disqualification of which the state alone can take advantage. In Matter of Leefe, 4 Edward's Oh. 407. II. DEPOSITION OF RESIDENT ALIEN. Section 4 of the real property law. (L. 1896, ch. 547, taking effect October 1, 1896.) "An alien who, pursuant to the laws of the United States, has declared his intention of becoming a citizen, and who is, or intends to remain, a resident thereof, may make a written deposition to such facts, before any officer authorized to take the acknowledgment or proof of deeds to entitle them to be recorded within the state. Such deposition must be certified by the officer be- fore whom it is made, and may be filed in the office of the secretary of state, and when so filed, must be recorded by him in a book kept for that purpose. Such deposition shall be presumptive evidence of ihe facts therein contained." 12 II. ALIENS. Substantially the same as sec. 15, R S. pt. 11, ch. 1, tit. 1. 1 R. 8. 720, Sec. 15 (passed Dec. 10, 1838, took effect Jan. 1, 1830, Banks's 9th ed. JSr. Y. R. S., p. 1783, repealed by ch. 547, sec, 300, L. 1896). "Any alien who has come, or may hereafter come into the United States may make a deposition or affir- mation in writing before any officer authorized to take the proof of deeds to be recorded, that he is a resident of, and intends always to reside in the United States, and to become a citizen thereof, as soon as he can be naturalized, and that he has taken such incipient measures as the laws of the United States require to enable him to obtain naturalization, which shall be certified by such officer, and be filed and recorded by the secretary of state in a book to be kept by him for that purpose; and such certificate, or a certified copy thereof, shall be evidence of the facts therein con- tained." (Thus amended by L. 1834, ch. 372.)* Sec. 15 substantially r^ncorporated L. 1825. L. 1834, ch. 373, amended R. S. sec. 15, as follows : Sec. 15. — "Aliens who have or may come into this state," etc. 1834. — "Aliens who have or may come into the United States and this state," etc. Alien's deposition. The United States Statutes, sec. 3165, title 30, provide (1) He shall declare on an oath before a circuit or district court of the United States, or a district, etc., etc., * * * two years before admission that it is lona fide his intention to become a citizen of the United States, and to renounce forever all allegiance, etc. (to foreign power) of which the alien may be at the time a citizen or subject of. (3) It must appear to the satisfaction of the court that he has resided for five years at least in the United States and the state or territory in which the court is, one year at least, and he be of good moral character. — See Citizen, p. 7. III. WHEN AND HOW ALIEN MAY ACQUIRE AND TRANSFER REAL PROPERTY. Before giving section 5 of the " Real Property Law," and the statute which it supplanted, a brief history of the legislation of this immediate subject will be found useful. Previous to 1798, private statutes had been from time to time enacted, f * Previous to the enactment of section 15 above, ch. SOT, L. 1835 (passed April 31st), was in force, but the latter statute was repealed by L. 1838, ch. 31, sec. 1, paragraph 453, the repeal taking efEect Dee. 31, 1839. The portions of the act of 1835 pertinent to the making of the deposition were in substance as follows : Sec. 1. Deposition was recjuired to be made in writing before chanjoellor, judge of court of re'cord, or other officer authorized to take acknowledgment or proof of deeds, to the effect that the deponent is a resident in and intends always to reside in the United States, and become a citizen thereof, as soon as he can be naturalized and that he has taken incipient steps to become so. * * * See. 3. After same made as aforesaid and certified by one before whom made, it shall be filed in secretary of state's ofttce and be recorded by same in a book kept by him for that pur- pose, and shall be evidence on all occasions of such person having made same. + The following illustrate such private statutes : L. 1790, ch. 41, permitting P . J. V. B. to purchase lands, tenements and hereditaments within the state and hold the same to his heirs and assigns forever, as if he had been a natural born citizen. Id. of A. R. and C D. L. F. Id. of J. M. and J. F. not exceeding £4.000. That J. C. R. might lawfully convey lands since purchased of J. M. as if lie had been a citizen at the time of his deed from H. to R. III. WHEN AND HOW ALIEN MAY ACQUIRE, ETC. 13 The first general law was ch.72, L. 1798, Banks's 9th ed. N. Y. R S., p. 1982 (passed April 2, slightly amended by sec. 3, ch. 95, L. 1798). It provided that conveyances " hereafter to be made " to an alien, not the subject of a hostile power, should vest in such alien the estate granted, to have and hold to him and his heirs and assigns. There were these limitations in this act : (1) He could reserve no rent or rent service ; (2) His deed must be recorded within twelve months of its date ; (8) The act should remain in force for three years. (Sec. 4, ch. 49, L. 1802, extended the time for recording deeds to twelve months beyond its passage.) * Sec. 1, ch. 25, L. 1819, Banks's 9th ed. N. Y. R S,, p. 1983 (passed March 5) declared that conveyances made pursuant to ch. 72, L. 1798, should vest the estate conveyed in the alien grantees, their heirs and assigns, in such manner as to authorize the grantees, their heirs and as- signs, being aliens, to make valid disposition of the lands by devise, grant, gift in fee or otherwise to any other friendly aliens. Sec. 2, ch. 25, L. 1819, declared valid, so far as alienism might affect them, mortgages taken or to be taken by the grantees under such act to secure the purchase money on a sale thereof and allowed the grantees and their heirs and assigns to repurchase on foreclosure. By its terms, the act of 1798 should have expired April 2, 1801, and notwithstanding the declaratory act of 1819, the act of 1798 probably did so expire. For decisions under these acts see note.* *Land conveyed to an alien pursuant to the provisions of the act of 1798 (passed April 3) may continue to be held by alien heirs and alien devisees of the grantee until by inheritance, devise or grant the title comes to a citizen. The term heirs in that statute applies as well to the heirs of the first heir as to the first heir himself, and the term assigns includes devisees and heirs of assignees and as- signees of heirs. A devise of land held under the act by an alien to alien trustees, taking effect in 1811, vested a legal estate in the trustees. The act of March 3, 1819, declaratory of the construction of the former act cured any defect in titles then existing arising from the alienism of any of the parlies to or through whom they had passed. Duke of Cumberland v. Oraiies, 7 N. Y. 305; see 9 Barb. 595. This case followed and approved and the provisions of the treaty of 1794 with reference to the capacity of British aliens to hold and convey lands in this country under it, and the law of this state, April 2, 1798, on same subject is stated and dis- cussed in People v. Snyder, 41 N. Y. 397. An alien who has received a conveyance of and from an alien may transmit the title by c )nveyance to an alien, under the provisions of the act of the legislature rela- tive to agents holding and conveying real estate (1798 and 1819). Aldrieh v. Manton, 13 Wend. 458. Devise to alien trustees of lands held by an alien under the act of 1798 " to enable aliens to purchase and hold real estate within this state " (ch. 73, L. 1798) is. valid. Howa/rd v. Moot, 64 N. Y. 362; 2 Hun, 475. See Duke of Cumberland v. Graves, 7 N. Y. 305. 14 II. ALIENS. The next act was ch. 49, L. 1802, Banks's 9th ed. N. Y. R S., p. 1984. Sec. 1 gave aliens, who have come to and become inhabitants of this state, the right to hold and dispose of or transmit land purchased before or after its passage, up to a limit of 1,000 acres. Sec. 2 enabled the alien, his heirs and assigns, to take a mortgage for the purchase money on the sale of the land. By sec. 26, ch. 109, L. 1804; sec. 1, ch. 25, L. 1805; sec. 1, ch. 175, L. 1808, Banks's 9th ed. N. Y. R. S., p. 1985, this act was extended to the close of the legislature of the last year, and the last act, sec. 2, pro- vided " that all persons authorized to acquire real estate by purchase by this act, or the ^ct hereby extended, may also take and acquire by devise or descent." The act of 1802 does not seem to have been extended save as above, so that it only enabled persons who came and became inhabitants previ- ous to the closing of the legislature of 1808. Note.— Laws of 1798, 1802, 1804, 1805, 1808 were not revised in R. L. (1813) and were all repealed by L. 1896, ch. 547, sec. 300. "With the exception of ch. 25, L. 1819, which was merely declara- tory of the act of 1798, no act seems to have been passed on this sub- ject from 1808 to 1825 (Mick v. Mick, 10 Wend. 379), when, by ch. 307 of the Laws of 1825, a new act and a new policy was adopted, viz. : to enable only such aliens to acquire interests in land as should take the preliminary steps to become citizens. Ch. 307, L. 1825, enabled alien in- habitants, who had or should come to this state, upon making and filing the required deposition of residence, and intention to become a citizen, and that he had taken these incipient measures required by Laws of U. S., to take and hold land to them, their heirs or assigns forever, and to sell, assign, mortgage, devise and dispose of the same in any man- ner; but there were two limitations : (1) They could not before naturalization lease; (2) They could not take or hold lands descending, devised or con- veyed previous to their becoming residents and making the required de- position. The Law of 1826, ch. 297 (passed April 18), modified the Law of 1825 by allowing an alien who had purchased real estate before making and filing his deposition to continue to hold, provided he filed his deposition within one year from the passing of the act, and, where the alien, being an inhabitant of the United States, died within six years after filing the required deposition, by allowing such alien, after having filed his deposition, to grant, devise, contract, mort- gage and transmit by descent to alien heirs resident in this state the same as a citizen of this state. III. WHEN AND HOW ALIEN MAY ACQUIRE, ETC. 15 The Laws of 1825 and 1826 were repealed (repeal to take effect Dec. 31, 1829) by L. 1828, second meeting, ch. 21, sec. 1, par. 453, and were substantially reincorporated in the Revised Statutes, 1 R. S. 720, sees. 15-20, Banks's 9th ed. N. Y. R. S., p. 1786. The Revised Statutes and several statutes passed after its adoption (given below), were repealed by the Real Property Law now existing. The present law and the statutes that it superseded are as follows : Real Property Law, sec. 5 (L. 1896. ch. 547, taking effect Oct. 1, 1896). " An alien may, for a term of six years after filing the deposi- tion described in the last preceding section, take, hold, convey and devise real property. If such deposition be filed, or such alien be ad- niitted to citizenship, a grant, devise, contract or mortgage theretofore made to or by him is as valid and effectual as if made thereafter ; pro- vided, however, that a devise to an alien shall not be valid unless a deposition be filed by him, or he be admitted to citizenship, within one year after the death of the testator, or if the devisee is a minor, within one year after his majority. If a person who has filed such a deposition dies within six years thereafter, and before he is admitted to citizenship, his widow is entitled to dower in his real property, and if he dies intes- tate, his heirs or the persons who would otherwise answer to the de- scription of heirs, inherit his real property, upon such persons being admitted to citizenship, or filing a deposition in their own behalf, within one year after such death, or if minors, within one year after their ma- jority. If an action or proceeding is commenced by the state to recover real property held by an alien, such action or proceeding shall be sus- pended upon the filing of such deposition, and the service of a certified copy thereof upon the attorney-general, and the payment of the costs to the time of such service."* Naturalization has no retroactive effect so as to vest a title, which at the time of the death of the ancestor, could not be inherited on account of alienage. See Jackson v. Beach, 1 Johns. Gas. 399. *L. 1893, ch. 207, sec. 1, Banks's 9th ed. N. Y. R. S., p. 2908 (passed and took effect March 24, 1893, repealed by L. 1896, ch. 547, sec. 300). "Any person who would otherwise answer to the description of heir or devisee of a person, who, at the time of his death, was a citizen of the United States, shall be entitled to inherit or take from said citizen, and hold, enjoy, convey, transmit and devise any interest in real property situated in this state, in the same manner and to the same extent and with the same effect as if he was himself a citizen of the United States, notwithstanding the fact that he be a non-resident alien, and the fact that any person otherwise qualified to take, hold, enjoy, convey, transmit and devise any interest in real property situated in this state, is a non-resident alien, shall not prevent his taking, holding, enjoying, conveying, transmitting and devising such interest, providing his title, or that of some person under whom he claims, shall be derived, by descent or devise, from some person who was, at the time of his death, a citizen of the United States." 16 II. ALIENS. Thus, where plaintiEEs, who proved right to inherit if not disqualified by alienage, were in this country at the time of the decease of their an- cestor but were not naturalized until afterwards, they were not allowed to recover in ejectment. Moreover, the statute of April 10th, 1813, sec. 1, authorizing a natural- ized citizen to whom lands would have descended if he had been a citi- zen at the time of the death of the person last seized, to continue to hold in the same manner as if he had been a citizen at the time of such descent cast, applied only to those who were then naturalized citizens. Heney v. Brooklyn Benevolent Society, 39 IST. Y. 333. From opinion.— (Priest v. Cummings, 30 Wend. 347, 353 ; Kennedy v. "Wood. id. 240.) These cases show that the opinion of the Court in The People v. Oonklin (3 Hill, 67), is not in reference to the point under consideration, to be regarded as a dictum unsustained by authority. It is there held, that the capacity to take by descent must exist at the time the descent happens. It is there conceded that an alien may take by purchase, subject to the right of the state to recover the land after office found ; and that, if naturalization be had before office found, his title will be thereby confirmed. That a conveyance or devise should be deemed to operate technically as a transfer of the title to the alien, is in harmony with the fact that the state, seeking to avail itself of the escheat, must itself rely upon the conveyance or devise as a transfer of the title, and if therefore, the grantee or devisee be naturalized before office found, it may be true, that, because he is then capable of holding the title so conveyed, and he can not thereafter be found an alien, the estate can not enforce the escheat. But this reasoning can have no application to a descent, which is by operation of law. The law casts no title on an alien, and there is no need of finding by inquisition of office found to entitle the state to recover. Hence, it is also said in the last case cited, that the rule is ' otherwise where the party claims by descent,' though naturalized after descent cast.'' See, also, Jackson v. Green, 7 Wend. 333. The capacity to take by descent must exist at the time the descent happens. Though aliens may take lands by purchase, neither they nor a purchaser under them, can hold as against the state. Where lands are devised to aliens, with a pow-er to executors to sell, etc., an entry by the people extinguishes the whole estate and the power along with it. People v. Conklin, 2 Hill, 67. Where a direction for a conversion is simply for the purpose of the will, the doc- trine of conversion will, if necessary, apply in favor of non-resident aliens. Parker v. Linden, 113 N. Y. 38. Except as to the state alien brother and sister may take real estate. Parker v. Lin- den, 113 N. Y. 38, digested, p. 936. Although an alien may not acquire title to real estate, as against the true owner, by an adverse possession of twenty years, claiming title thereto in himself, yet the statute of limitations will furnish a perfect defense to an action of ejectment against him by the true owner. Overing v. Russell, 33 Barb. 363. An alien friend is entitled not only to take and hold until office found, but to main- tain an action for its recovery in case of intrusion by an individual. Bradstreet v, Supe/rmsors of County of Oneida, 13 Wend. 546 (1835). If an alien holding lands under the provisions of the acts of 1803 and 1808, author- izing aliens to purchase and hold real estate, dies intestate, his lands descend to his heirs, although they be aliens ; if he dies without heirs, the lands escheat ; but until office found, the state has no right to enter and take possession, and the grant of the III. WHEK AND HOW ALIEN MAT ACQUIRE, ETC. 17 lands before office found, whether the legislature act or otherwise, conveys no title. Jackson v. Adams, 7 Wend. 367. Where an alien, for the purpose of evading the law prohibiting him from taking and holding land, purchases land and talies a conveyance in the name of a third per- son, without written declaration of trust, a resulting trust will not arise in favor of the purchaser. Leggett v. Dubois, 5 Paige Oh. 114. Conveyance of land in trust to sell and pay over proceeds to a creditor who is an alien, is a valid trust, and the interest of the alien in such proceeds is not subject to forfeiture ; as the principle of public policy which prohibits an alien from holding lands, either in his own name or in the name of his trustee, without the consent of the state, does not apply to such a case. . Anstice v. Brown, 6 Paige, 448. No title in case of alienism vests in the people of the state until after office found. Naturalization has a retroactive effect to affirm a former title. Jackson v. Beach, 1 Johns. Cases, 399. Though an alien may take by purchase and hold until office found, yet on his death, the land escheats, without any inquest of office. Mooers v. White, 6 Johnson's Ch. 360; Collingwood v. Pace, 1 Sid. 193; 1 Vent. 413; Co. Litt. 2b; Plowd, 339b, 230a. " The permission, by law, to an alien to take and hold lands to him and his heirs, or a grant from government by authority of law, to an alien and his heirs, does neces- sarily imply, that he may transmit by descent to his children, or their alien heirs, and that his heirs may take the land in question equally as if they were natural born citi- zens." OoodellY. Jackson, 20 Johns. 694, at 707; People v. Etz, 5 Co wen, 314; Peo- ple V. Lervey, id. 397. Previous to these statutes of 1896 and 1893, the law had since 1830 been contained in the Revised Statutes and subsequent independent statutes. The Eevised Statutes and such independent statutes are as follows: 1 R S. 720, sec. 16, Banks's 9th ed. K Y. R. S., p. 1786 (passed Dec. 10, 1828, took effect Jan. 1, 1830, repealed by L. 1896, ch. 547, sec. 300). "Any alien who shall make and file such deposition shall there- upon be authorized and enabled to take and hold lands and real estate, of any kind whatsoever, to him, his heirs and assigns forever, and may, during six years thereafter, sell, assign, mortgage, devise and dispose of the same, in any manner, as he might or could do if he were a native citizen of this state, or of the United States, except that no such alien shall have power to lease or demise any real estate, which he may take or hold by virtue of this provision, until he becomes naturalized." Sec. 16 is substantially the same as sec. 1 of the Laws of 1835.* (See history of the law, pp. 14, 15). Changes : L. 1835, sec. 1. — "And may sell, assign,'' etc. R. 8. sec. 16. — "And may during six years sell, assign,'' etc. Acts affecting section 16. N. Y. L. 1830, ch. 171, sec. 2, Banks's 9th ed. N. Y. R. S., p. 1786 (passed April * Act of April 21, 1825 (1 R. S. 720) , applies to prior as well as subsequent resident aliens. Kennedy v. Wood, 20 "Wend. 230. Act of Nov. 26, 1827 {a private act), conferred upon an alien heir of an alien the right to Inherit in spite of their alienage. But that does not apply to a naturalized citizen, who after his naturalization holds under same law as any other citizen, and alien heirs of a citizen can Inherit only on compliance with 1 R. S. 720, sees. 15-16. McCarty v. Terry, 7 Lans. 236. 3 18 II. ALIENS. 15, repealed by L. 1866, ch. 547, sec. 300). "Every grant, contract or mortgage, heretofore made and executed by any such alien, to and with any citizen of the United States, shall be deemed and considered as valid and effectual, as if such grant, contract or mortgage, had been made by a citizen of this state." N. Y. L. 1836, ch. 339, sec. 3 (passed May 15, and by its third section to remain in force five years from its date). "Every grant, contract or mortgage, made and executed agreeable to the provisions of the preceding section, by any such alien, to and with any citizen of the United States, shall be deemed and considered as valid and effectual as if such grant, contract or mortgage had been made by a citizen of this state." Re-enactment of sec. 2, L. 1830. N. T. L. 1845, ch. 115, sec. 9, Banks's 9th ed. N. Y. R. S., p. 2075 (passed April 30, repealed by L. 1896, ch. 547, sec. 300). "Every grant, devise, demise, lease or mortgage of any lands within this state, heretofore made and executed in due form of law by an alien to any citizen of this state, or to any resident alien capable of tak- ing and holding any real estate, or any beneficial interest therein within this state, or which may hereafter be made and executed by any resident alien capable of taking and holding real estate within this state, to any citizen of this state, or to any resi- dent alien capable of taking and holding real estate, or any beneficial interest therein ; and all rents reserved or hereafter reserved on any such lease or demise, and all lawful covenants and conditions in any such lease or demise, are hereby con- firmed, and shall be deemed and taken to be as valid and effectual, as if made by or between citizens of this state. " N. Y. L. 1845, ch. 115, Banks's 9th ed. N. Y. R. S., pp. 2073-2076 (passed April 30, repealed, L. 1896, ch. 547, sec. 300). Sec. 1, extends 1 R. S. 720, sec. 17. See p. 31. Sec. 2, relates to alien dower. See p. 29. Sec. 3, relates to alien dower. See p. 29. Sec. 4, extends 1 R. S. 710, sec. 18. See p. 32. ^ Sec. 5. — "Any resident alien of this state who has purchased and taken a con- veyance, or who shall purchase and take a conveyance of real estate within this state, and has died or shall die after having devised or conveyed the same, the devisee or grantee of such real estate may take and hold, and is hereby declared capable of hold- ing the real estate so granted or devised, whether such grantee or devisee be a citizen or alien, according to tlie nature and effect of such grant or devise ; but no devisee or grantee of full age who is an alien, shall hold such real estate as against the state, unless he make and file in the office of the secretary of state the deposition or affirma- tion mentioned in the first section of this act."* Sec. 6.^"Any resident alien who has purchased and taken by deed or devise any real estate within this state, or who may hereafter purchase and take by deed or devise any real estate within this state, and who has made and filed, or shall make and file, in the office of the secretary of state, the deposition in the first section of this act mentioned, may grant and devise such real estate to any citizen of tlie United States, or to any alien resident of this state, in the same way and to the like effect, and to and for the same purposes as if such alien were a citizen of the United States; but no resident male alien of full age shall hold any lands so granted or devised to him ♦Under provisions of section 5 of chapter 115 of 1845, any resident alien of this state who has purchased and taken a conveyance of real estate within this state, may grant or devise the same, and his grantee or devisee may take and hold the same upon complying with the conditions of said sections. Section 5 is not limited by the provisions of section 6 of said act and such grant or devise is vahd even though such grantor or devisor may never have filed the deposition or affirmation required by the said section 6. Dusenberry v. Dawson, 9 Hun, 511 , following Goodrich v. Russell, 43 N. Y. 177. III. WHEN AND HOW ALIEN MAY ACQUIRE, ETC. 19 as against the state, unless he make and file in the office of the secretary of state the deposition or affirmation in the first gfection of this act mentioned." Sec. 7. — " Every woman being an alien and resident of this state, is hereby declared to be and is hereby made capable of taking and holding real estate under the will of her husband, or of any person capable of devising any real estate, and she is hereby declared to be and is hereby made capable of executing any and every power in respect to the real estate devised to her, and which may lawfully be created, the same as if she were a citizen of the United States. " Sec. 8. " Every woman being an alien and resident of this state, is hereby de- clared to be and is made capable of taking any and every beneficial interest or estate in any lands or real estate within this state, which has been or may be created in her favor, or for her benefit in any marriage settlement, or in any will or devise made by her husband, or of any person capable of devising real estate, subject to all the pro- . visions of law, regulating the creation of uses and trusts." Sec. 9— relates to title through an alien. See L. 1896 ch. 547, sec. 7, p. 36. Sec. 10 — "All proceedings to recover lands held by a resident alien, by reason of his alienage, shall be suspended, on his filing in the office of secretary of state the deposition or affirmation mentioned in the first section of this act, and on payment of the costs and charges of such proceedings, up to the time of serving a certified copy of such deposition or affirmation on the attorney-general of this state. " Sec. H — "This act shall not affect the rights of this state in any case in which the proceedings for escheat have been or shall, before the making or filing the deposition or affirmation in the first section of this act mentioned, be commenced or the rights of any person or persons whose interests may have become vested in any such lands or real estate ; but all proceedings commenced or hereafter commenced to recover lands, as for an escheat, held by resident alien, shall be subject to the provisions of the last preceding section. "* Note— See last clauses L. 18b8, ch. 513; 1872, chs. lil and 358; 1875, ch. 336; 1877, ch. Ill, 18i3, ch. 87, see. 3. Sec. 12 — relates to the liabilities of alien owners of real property. See L. 1896, ch. 547, sec. 8, p. 38. Sec. 13 — applies the provisions of sec. 19 of 1 R. S. 721, to this act, see p. 38. Sec. 14— repeals L. 1833, 1833. Sec. 15 — "Nothing herein contained shall prejudice the rights bona fide acquired by purchase or descent, without notice before this act shall take effect. " The several provisions of this act were reenaoted by L. 1857, ch. 576 (quoted post p. 23). 1 E. S. 720, sec. 17, Banks's 9th ed. K Y. E. S., p. 1786 (passed Dec. 10, 1828, took effect Jan. 1, 1830, repealed L. 1896, ch. 547, sec. 30). " Such alien shall not be^apable of taking or holding any lands or real estate, which may have descended, or been devised or conveyed to him previ- ously to his having become such resident, and made such deposition or affirmation as aforesaid. " f L. 1835, ch. 807, sec. 1, last subdiv. and sec. 17, the same.. (See history of the law at pp. 14, 15). * Sec. 10 refers to proceedings lor escheat against the alien himself, while see. 11, to those against persons who derive their title through aliens and so TTould themselves be subject to escheat were it not for this section. This evidenced by position of substantially the same clause In L. 1896, ch. 547. i. e„ sec. 10, replaced it in sec. 5 ; last sentence sec. 11, re-enacted la sec. 7 next to last sentence. +The alienage of a husband does not prevent the vesting in him, upon the death of his wife, 20 II. ALIENS. Acts affecting section 17. N. Y. L. 1830, ch. 171, Banks's 9th ed. N. "K. R. S., p. 1786 (passed April 15, re- pealed by L. 1896, ch. 547, sec. 300). Sec. 1. "Any resident alien who has pur- chased and taken a conveyance for any lands or real estate, within this state, before making and filing the deposition or affirmation in writing required by the provisions of title one of chapter one of the second part of the Revised Statutes of this state (sec- tion regarding form of deposition) may continue to hold such lands and real estate, in the same manner and with the like effect as he would have done if such purchase had been made and conveyance taken after the making and flliag of the deposition or affirmation in the said title and chapter specified. But to entitle any such alien to the benefits of the provision of this section, such alien, at the expiration of one year from the passing of this act, shall have made and filed such deposition or affirmation as is required by the provisions of the aforesaid title; otherwise this section shall be of no force or effect whatever, as it regards such alien."* L. 1886, ch. 339, sec. 1 was passed May 15 and is principally the same as L. 1880, ch. 171, sec. 1, but changed the Law of 1830, ch. 171, as follows : 1836 — Aliens who have or may liereafter purchase. 1880 — Aliens who have purchased and taken. 1830 — Shall file deposition before one year after act passed. 1836— Shall file deposition within one year after act passed, or within one year from date of taking such lands. 1830 — Heretofore made. 1836— Made agreeable to the provisions of preceding section. Sec. 2. (See acts affecting sec. 16.) Sec. 3. "This act shall continue in force for five years from the date hereof, and no longer." L. 1838, ch. 33, sec. 1 (passed Feb. 7, is amendatory of L. 1836, ch. 339). Resi- dent aliens under L. 1836 may, prior to April 13, 1839, make and file depositions mentioned in R. S. pt. 2, ch. 1, tit. 1, and filing same, entitled them to same rights and privileges they would have been entitled to had it been filed within the time re- quired by act amended. N. Y. L. 1843, ch. 87, Banks's 9th ed. N. Y. R. S., p. 2068 (repealed by L. 1896, ch. 547, sec. 300). Sec. 1. "Any naturalized citizen of the United States, who may have purchased and taken a conveyance for any lands or real estate within this state, or to whom any such lands or real estate may have been .devised, or to whom they would have descended if he had been a citizen at 'the time of the death of the person last seized, before he was qualified to hold them by existing laws, may continue to hold the same in like manner as if he had been a citizen at the time of such purchase, of the entire estate in land conveyed in fee to himself and wife, subject only to the para- mount right of the people upon office found or escheat. The provision (1 R. S. 720, sec. 17), that an alien shall not be capable of taking or holding land conveyed or devised to him, previous to his making the deposition therein mentioned, is a limitation of the preceding sections and prevents his title thus acquired being good aa against the people, but does not impair the common law rule. The statute (1 B. S, 730, sees. 15-19) enables a resident alien, who has filed the required de- position, to take and hold lands by descent — of which he was incapable at common law — and by devise— which, in the absence of an enabling act, is against the statute of wills — and also renders the land descendible to his heirs Inhabiting the United States, in case of his death within six years. The 17th section restricts the operation of the others to lands acquired after the filing of the deposition, and leaves the common law in force as to lands previously acquired, and as to aliens who have not complied with the statute. WrifjU V. Saddler, 20 N. Y. 320. * The time for making and filing depositions was extended by L. 1831, ch. 173 (passed April 18); byL. 1832, ch. 171 (passed April 17); L, 1833, ch. 167 (passed April 18) In each case to April 15 next." These three acts each provided that all other provisions of the act of 1830, ch. 171, be also extended. III. WHEN AND HOW ALIEN MAY ACQUIRE, ETC. 21 devise or descent cast; and all conveyances, by deed or mortgage, heretofore made by such naturalized citizen, are hereby confirmed." Sec. 3. "Any alien, who, being at the time an actual resident of the United States, may have heretofore purchased and taken a conveyance of any such lands or real es- tate, or to whom they may have been devised, or to whom they would have de- scended if he had been a citizen at the time of the death of the person last seized ; -and any such alien who may hereafter purchase and take a conveyance of any lands or real estate, or to whom the same may be devised, or to whom the samei would have descended if he were a citizen, and who have already filed, or shall within one year from the passage of this act, or within one year from the time of such purchase, de- vise or descent cast, file the deposition or affirmation specified in the fifteenth section, article second, chapter first, part second of the Revised Statutes, may hold or convey such land or real estate during the term of five years from the passage of this act, in the same manner as if he were a citizen of this state. And any conveyances by deed or mortgage heretofore made by any such alien, is hereby declared in like manner valid." Sec. 3. " This act shall not affect the rights of the state in any case in which pro- ceedings for escheat have been instituted; nor the rights of any person or persons, whose intei-ests may have become vested in any such lands or real estate." Sec. 4 relates to Indians. See L. 1896, ch. 547, sec. 9, p. 3. Sec. 5. "The words 'real estate,' as used in this act, comprehend equitable as well as legal Estate." N. T. L. 1845, ch. 115. Banks's 9th ed. N. Y. R. S. p. 3073 (passed Apr. 30, repealed by L. 1896, ch. 547, § 300). Sec. 1— "Any alien resident of this state, who has heretofore purchased and taken, or may hereafter purchase and take a conveyance of any lands or real estate within this state, or to whom any lands or real estate has been or may hereafter be devised, before making and filing in the office of secretary of state, the deposition or affirmation in writing, specified in the fifteenth section of the first title in the first chapter of the second part of the Revised Statutes, may, on making and fihng such deposition or affirmation, hold the real estate granted, conveyed or devised to such alien, in the same manner and with the like effect as if such alien at the time of such grant, conveyance, or devise, were a citizen of the United States."* *The children of a resident alien, deceased succeed to his real estate, as heirs, although they are themselves non resident aliens ; the title of such of them as are males of full age being defeasible by the state, however, unless, before the con- summation of proceedings instituted for that purpose, they shall file their deposition of intended citizenship, as required by the act of 1845 (Laws of 1845, ch. 115, sees. 1 and 10). M., a resident alien, having purchased and possessed lands in this state, and given a mortgage thereon, died, in 1864, intestate, without having filed any deposi- tion or affirmation of intention to become a citizen. He left two sons and one daughter, all of full age, residing in England, and subjects of Great Britain and collateral kindred who were residents and citizens of the United States. His three children conveyed to W., and subsequently, by act of the legislature, all the rights •of this state "acquired by escheat" were released to W., and the conveyance to him confirmed and legalized. Afterward the mortgage was foreclosed, W. and the three children of M., but none of the collateral kindred, being made defendants, and the plaintiff purchased the premises on foreclosure sale. The plaintiff then made a contract for the sale thereof with the defendant, agreeing to give good title. The defendant refused to perform this contract, on the ground that the plaintiff could not convey good title. Construction. The plaintiff's title was good, and he could enforce specific per- formance of the contract. , . , , , j ^ The estate descended to the three children of M., the title which descended to the sons, being defea.sible, by the state, they being of full age, unless they should 22 II. ALIENS. L. 1857. ch. 576, Banks's 9th ed. N.T. R. S., p. 2076 (repealed byL. 1896, ch. 547, see. 300). Sec. 1 — "The several provisions of the act entitled 'An act to enable resident aliens, to hold and convey real estate, and for other purposes,' passed thirtieth of April, eigh- teen hundred and forty-flve, are hereby extended and applied to any such grant, demise, devise, lease or mortgage which are enumerated in said act, and which have been heretofore made, and shall be as effectual to pass the title thereto as though the persons by, from, or through whom the title shall have so passed, had been citizens of the United States, and as though the several provisions of said act had been as they hereby are re-enacted. The deposition or affirmation required to be made in the first section of the act hereby extended, shall be made and filed in the office of the secre- tary of state, within two years from the time when this act shall take effect, and if any person who, according to the provisions of the act hereby re-enacted and extended, is required to make and file in the office of the secretary of state the deposition or affirmation herein mentioned, shall neglect or omit to make and file the same within the time herein limited, he or she so neglecting or omitting to make and file such depo- sition or affirmation, shall not be entitled to the benefit of this act." Note.— See L. 1896, ch. 547, sec. 7; also, 1845, sec. 9. 1 Revised Statutes, 720, sec. 18, Banks's 9th ed. N. Y. R S., p. 1786 (passed Dec. 10, 1828, took effect Jan. 1, 1830, repealed by L. 1896, ch. 547, sec. 300). "When such alien shall die within six years after mak- ing and filing such deposition, intestate, leaving heirs, inhabitants of the United States, such heirs shall take by descent, and hold any real estate of which such alien died seized, in the same manner as they would have inherited if such alien had been, at the time of his death, a citizen of this state." 1836, sec. 3, last subdiv., and sec. 18, are the same. Acts affecting section 18. N. Y. L. 1845, ch. 115, sec. 4, Banks's 9th ed. N.T. R. 8., p. 2073 (passed April 30, repealed by L. 1896, ch. 547, sec. 300). "If any alien resident of this state, or any naturalized or native citizen of the United States, who has purchased and taken, or hereafter shall purchase and take, a conveyance of real estate within this state, has died, or shall hereafter die, leaving persons who, according to the statutes of this state, would answer the description of heirs of such deceased person, or of devisees, under his last will, and being of his blood, such persons so answer- file a deposition of intention to become citizens before the consummation of proceed- ings for that purpose ; but the special act of the legislature made this title valid, I even as against the state. Ooodrich v. Russell, i'ZT^.Y.m. Under the provision of the act of 1845, to enable resident aliens to hold and convey real estate (sec. 1, ch. 115, Laws of 1845), which provides that a resident alien ta whom any real estate had been or should thereafter be devised, might on filing the deposition of intention to become a citizen, etc. , prescribed by the Revised Statutes (1 R. S. 720, sec. 15), hold the real estate the same as if he was a citizen at the time of the devise, a resident alien devisee of a citizen takes, upon acceptance of the de vise, a conditional title, absolute as against the heirs of the testator, but defeasible by the state until he complies with conditions as to aliens. The provision, therefore, of the statute of wills (2 R. S. 57, sec. 4) declaring a devise to one who, at the time of the death of the testator, is an alien to be void, was-' modified by the said act in this respect. The said act of 1845 is not retrospective solely, it applies to aliens who have be- come residents of this state subsequent to its passage. Hall V. Eall, 81 N. Y. 130, aff'g 13 Hun, 306. III. WHEN AND HOW ALIEN MAY ACQUIRE, ETC. 23 ing the description of heirs or of such devisees of such deceased person, whether they are citizens or aliens, are hereby declared and made capable of taking and holding, and may take and hold, as heirs, or such devisees of such deceased person, as if they were citizens of the United States, the lands and real estate owned and held by such deceased alien or citizen at the time of his decease. But if any of the persons so answering the description of heirs, or of such devisees, as aforesaid, of such deceased person, are males of full age, they shall not hold the real estate hereby made descendi- ble or devisable to them as against the state unless they are citizens of the United States, or in case they are aliens, unless they make and file in the office of the seci'etary of state the deposition or affirmation mentioned in the first section of this act." As amended by L. 1874, ch. 261, sec. 1, as amended by L. 1875, ch. 38, sec. 1. Where an alien female intermarried with a citizen, by virtue of the marriage she be- comes a citizen and capable of taking and holding lands in this state by purchase or descent. (United States Statutes at Large, vol. 10, p. 604; 1 R. S. 719, sec. 8). The words " resident alien," in the provision of the act of 1845, " to enable resident aliens to take and hold real estate " (sec. 4, ch. 115, Laws of 1845), which enables those answering the description of heirs of a deceased alien resident to take, whether they are citizens or aliens, do not include or designate a naturalized citizen. The incapacity therefore of alien heirs of a naturalized citizen, who died intestate, to take lands of which he died seized, was not removed by that statute. So, also, the alien children of a deceased brother or sister of the intestate, who was an alien are not within the provisions of the statute (1 R. S. 754, sec. 32), which saves a per- son "capable of inheriting," from being barred by the inheritance by reason of the alien- age of any ancestor. Alienism is an impediment to taking lands by descent only when it comes between the stock of descent and the person claiming to take ; if some of the persons who answer the description of heirs are incapable of taking by reason of alien- age they are disregarded, and the whole title vests in those heirs competent to take, provided they are not compelled to trace'the inheritance through an alien. The common law principle, t^at the descent between brothers, or a brother and sis- ter, is immediate and is not impeded by the alienage of the father, was not changed by the statute of 1786 (sec. 4, ch. 12, Laws of 1786), which changed the order of descent by enabling the father of a decedent to inlierit in default of lineal heirs. J., a naturalized citizen, died in 1866, intestate, and seized of certain real estate. He left him surviving his widow, his father, the defendant B., who was his sister, and the wife of a citizen, and two alien children of a deceased sister, who was an alien. The widow died in 1870. B., in 1873, by judgment in an action of ejectment, wherein she founded her claim upon her title by descent, recovered possession of the premises. She contracted to sell the same to plaintiff in 1877. Submission of the controversy as to her title under section 1279 of the Code of Civil Procedure. " Construction. — The title to the premises vested in B. upon the death of her brother, the act of 1874 (chap. 261 of Laws of 1874), amending the said provision of the act of 1845, by inserting after the words " resident alien " the words " or any naturalized or native citizen,'' could not operate to divest her estate thus acquired, and, therefore, she could give a good title to a performance of the contract. Luhra v. Eimer, 80 N. Y. 171, afE'g 15 Hun, 399. One who has taken lands by devise, holds the same ns purchaser within the mean- ing of the provision of the act "to enable resident aliens to hold and convey real estate" (sec. 4, ch. 115, Laws of 1845, as amended by ch. 261, Laws of 1874 and ch. 38, Laws of 1875), which provides that if any alien, resident or citizen, who has pur- chased and taken a conveyance of real estate within this state shall die "leaving persons who, according to the statutes of this state, would answer the description of 24 II. ALIENS. heirs," such persons whether aliens or citizens, may take and hold as heirs the real estate owned and held by the decedent at the time of his death. Real estate therefore, taken and held by the decedent as devisee, passes to his heirs, alien or resident, under said provision. As against every claimant, except the state, the title of an alien heir is good, and he may hold the real estate without making the deposition required by said act. Stamm v. Bostwick, 122 N. Y. 48, aff'g 40 Hun, 35. Note — The popular and commercial meaning of the words "to purchase" is doubt- less "to buy", but generally in law the word has a more extended meaning and includes every mode of acquiring land except by descent. "There are two modes only, regarded as classes, of acquiring a title to land, namely, descent and purchase; purchase including every mode of acquisition known to the law, except that by which an heir, on the death of an ancestor, becomes substituted in his place as owner by the act of the law." 3 Washb. on Real Prop. 290; James v. Morey, 2 Cow. 246 ; McCartee v. Orphan Asylum Society, 9 Cow. 437-507; Hoyt v. Van- Alstyne, 15 Barb. 568-572." S. died in 1871 intestate, leaving plaintiff, an alien, her only heir at law. B y an act passed in 1876 the state released its right and interest in the land to A. Held that the act of 1874 (L. 1874, ch. 261) amending act of 1845 (L. 1845, ch. 115) by its terms includes within its effect the heirs of those who had died before as well as after its passage, and, although the land had escheated to the state when the act of 1874 was passed, the legislative purpose is by its provisions quite apparent to surrender the title to lands taken by escheat, and of which the state had not before that time assumed in any manner to make disposition. And therefore at the time of the pas sage of the act of 1876 no title was in the state and the act was ineffectual to vest any title in A. Wainwright v. Low, 132 N. Y. 313. Land acquired by descent is not within the operation of sec. 4 of ch. 115 of Laws of 1845 as amended by L. 1875, ch. 38, and hence, while land acquired by purchase will descend to heirs, citizen or alien, by force of the statute, land acquired by descent will not. Callahan v. O'Brien, 72 Hun, 216. Where an alien and wife had filed the certificate required by Revised Statutes to enable them to hold real estate in N. Y. and had purchased lands, and died leaving as heirs at law brothers and sisters, nephews and nieces, some of full age and some minors, and all aliens and non-resident, held ; that under L. 1845, ch. 115, sec. 4, as amended by L. 1874, ch. 261 and L. 1875, ch. 38, such of the alien heirs at law of the husband as were minors and females took an absolute indefeasible estate. That such of the male heirs as were over twenty-one years, took a title which was defeasible by the state in proper proceedings instituted by it, so long as they omitted to file the deposition or affirmation mentioned in the first section of the act. That until the forfeiture was so declared, the state had no rights in the land which it could grant or convey to a stranger. MaynardY. Maynard, 36 Hun, 227. Under sec. 4, ch. 115 of L. 1845, as amended by ch. 38 of L. 1875, those lands of a citizen acquired by purchase descend to non-resident aliens, but those acquired by descent do not — citizen heir may inherit though compelled to trace his right through two non resident alien ancestors. Callahan v. O'Brien, 72 Hun, 216. 1 R S. 721, sec. 19, Banks's 9th ed. K Y. R. S., p. 1786 (passed Dec. 10, 1828, took effect Jan. 1, 1830, repealed by L. 1896, ch. 547, sec, 300). "If any alien shall sell and dispose of any real estate, which he is entitled by law to hold and dispose of, he, his heirs and assigns, may IV. EFFECT OF MARRIAGE WITH AN ALIEN. 25 take mortgages in his or their own name, as a collateral security for the purchase money due thereon, or any part thereof; and such mortgagees, his heirs, assigns or legal representatives, or any of them, may re-pur- chase any of the said premises, on any sale thereof made by virtue of any power contained in such mortgage, or by virtue of any judgment or decree of any court of law or equity, rendered in order to enforce the payment of any part of such money, and may hold the same premises, in the like manner, and with the same authority, as the same were originally held by such mortgagor." Act affecting section 19. N. Y. L. 1845, ch. 115, Banks's 9th ed. N.Y. R. S., p. 2076 (passed Apr. 30, repealed by L. 1896, ch. 547, sec. 300). Sec. 13. " The provisions of section nineteen of title one, chapter first, part second of the Revised Statutes, are hereby made applicable to this act, and all the provisions of title twelve, chapter nine, part first of the Revised Statutes, inconsistent with the provisions of this act, are hereby repealed." _ Provisions of sec. 19, R. S. pt. 3, ch. 1, etc., apply to this act, and provisions of tit. 12, ch. 9, pt. 1 R. S. inconsistent herewith repealed. IV. EFFECT OF MARRIAGE WITH AN ALIEN. Eeal Prop. L., sec. 6 (N. Y. L. 1896, ch. 547), amended by ch. 756, L. 1897, taking effect May 22, 1897. "Any woman born a citizen of the United States, who shall have married or shall marry an alien, and the foreign-born children and descendants of any such woman, shall, notwithstanding her or their residence or birth in a foreign country, be entitled to take, hold, convey and devise real property situated within this state in like manner, and with like effect, as if such woman and such foreign-born children and descendants were citizens of the United States ; and the title to any such real property shall not be impaired or affected by reason of such marriage, or residence, or foreign birth ; provided that the title to such real property shall have been or shall be derived from or through a citizen of the United States." N. Y. L. 1889, ch. 42, Banks's 9th ed. N. Y. R. S., p. S746 (passed and took effect March 3, 1889, repealed by L. 1896, ch. 547, sec. 300;. "That the foreign born children and descendants of any woman born in the United States, and notwithstand- ing her marriage with an alien and her residence in a foreign country, shall be entitled to take, hold, have, possess, enjoy, convey and devise real estate situated in this state, in the same manner and to the same extent and with the same effect, as if such foreign born children and descendants were citizens of the United States ; nor shall the title to any such real estate which has descended or which shall descend, or which has been or shall be devised or conveyed, to such woman or to such foreign born children or descendants, be impaired or affected by reason of her marriage with an alien, or the alienage of such children or their descendants ; provided that the title to such real estate shall be or shall have been derived from or through such woman, or fi'om or through some ancestor of such woman, which ancestor shall be or shall Lave been a citizen of the United States." L. 1873, ch. 130, sec. 1, Banks's 9th ed. N. Y. R. S., p. 2330 (repealed by L. 1896, ch. 547, § 300). " Real estate in this state now belonging to, or hereafter coming to, 4 26 II. ALIENS. descending to, any woman born in the United States, or who nas been otherwise a citizen thereof, shall, upon her death, notwithstanding her marriage with an alien and residence in a foreign country, descend to her lawful children of such marriage, if any, and their descendants, in like manner, and with like effect, as if such childrea or their descendants were native born or naturalized citizens of the United States. Nor shall the title to any real estate now owned by, or which shall descend, be devised or otherwise conveyed to such woman, or to her lawful children, or to their descendants, be impaired or affected by reason of her marriage with an alien, or the alienage of such children or their descendants." V. TITLE THROUGH ALIEN. Eeal Prop. L., sec. 7 (L. 1896, ch. 547, sec. 7, taking efiEect Oct. 1, 1896). " The right, title, or interest in or to real property in this state of any person entitled to hold the same can not be questioned or impeached by reason of the alienage of any person through whom such title may have been derived. Nothing in this section affects or im- pairs the rights of any heir, devisee, mortgagee, or creditor by judg- ment or otherwise." Substantially same as L. 1877, ch. Ill ; 1875, ch. 336 ; 1873, ch. 141 ; also, see, L. 1868, ch. 513 ; 1807, ch. 133, § 3. L. 1877, ch. Ill, sec. 1, Banks's 9th ed. N. Y. R. S., p. 1784 (repealed L. 1896, ch. 547, § 300). Sec. 1. "The right, title, or interest of any citizen or citizens of this state in or to any lands within this state now held or hereafter acquired shall not be questioned or impeached by the reason of the alienage of any person or persons of or through whom such title may have been derived : provided, however, that nothing in this act shall affect the rights of the state in any case in which proceedings for escheat have been instituted." Same as L. 1873, ch. 141, or 1875, ch. 336, except L. 1875, Right, title or interest in or to L. 1877, Title to L. 1877, Now held or hereafter acquired L. 1875, Now held or hereafter acquired omitted; also omitted in L. 1873, ch. 141 ; see 1868, ch. 513, sec. 1, 1807, ch. 133, sec. 3. L. 1877, ch. Ill, sec. 3, same as L. 1873, ch. 141, or L. 1875, ch. 336. L. 1875, ch. 336, sees. 1, 3, Banks's 9th ed. N. Y. R. S., p. 1784 (repealed L. 1896, ch. 547, § 300). Sec. 1. " The title of any citizen or citizens of this state to any lands within this state, shall not be questioned or impeached by reason of the alienage of any person or persons, from or through whom such title may have been derived. Provided, however, that nothing in this act shall affect the rights of the state ia any case in which proceedings for escheat have been instituted. Sec. 3. " Nothing in this act shall affect or impair the right of any heir, devisee, mortgagee, or creditor, by judgment or otherwise." Same L. 1873, ch. 141, sees. 1, 3. L. 1874, ch. 361, Banks's 9th ed. N. Y. R. S., p. 3074 (repealed L. 1896, ch. 547, | 300). Sec. 3, "All acts or parts of acts inconsistent with or repugnant to the provision* of this act are hereby repealed, provided, however, that nothing herein contained shall be taken or construed to affect any grant of land heretofore made by this state j and provided further that nothing in this act contained shall be taken or construed to affect the title to any land or lands which may have been heretofore derived through any devise, grant, gift or piirchase prior to the passage of this act, or to give any person not heretofore entitled thereto under the laws of this state any right. V. TITLE THROUGH ALIEN. 27 title or interest as against any such devisee, grantee or purchaser, or any right to impeach or in any manner call in question the validity of any will of the person so dying seized as aforesaid, and it is hereby declared that the record of any such will In the office of the surrogate of any county in this state shall be conclusive evidence of its validity against any and all persons claiming or to claim under this act." Note.— Sec. 1 amends L. 1845, ch. 115, sec. 4; sec. 3 construes the same and relates to L. 1845, Note. — Cf. statutes affecting devises, L. 1808, ch. 175, sec. 3 ; L. 1843, sec. 3 ; L. 1845, sees. 4, 5, 6, 7. L. 1873, ch. 358, sec. 1, Banks's 9th ed. N.Y. R. S., p. 1784 (repealed L. 1896. ch. 547, § 300). ' ' The title of any citizen or citizens of this state to any land or lands within this state, which may have heretofore been purchased by any such citizen or citizens from any alien or aliens, and for which a conveyance has been heretofore taken by any such citizen or citizens from any alien or aliens, shall not in any manner be questioned or impeached by reason or on account of the alienage of the peison or persons from whom such conveyance shall have been taken, or by reason of any devise of any such land or lands to any such person or persons, in any last will and testament being inoperative or void on account of the alienage of such person or persons ; but all devises of land or lands heretofore made by any last will and testament to any alien or aliens from whom a conveyance of such land or lands so devised shall heretofore have been taken by any citizen or citizens of this state, are hereby declared to be valid and effectual, so far that the title of such citizen or citizens to such land or lands shall not be affected by any invalidity of any such devise : provided, however, that nothing in this act contained shall affect the rights of this state in any case in which proceedings for escheat have been already instituted prior to the first day of January, one thousand eight hundred and seventy-two." L. 1872, ch. 141, sec. 1, Banks's 9th ed. N.Y. R. S., p. 1784 (repealed L. 1896, ch. 547, § 300). "The title of any citizen or citizens of this state to any lands within this state- shall not be questioned or impeached by reason of the alienage of any person or per- sons, from or tjirough whom such title may have been derived, provided however, that nothing in this act shall affect the rights of the state in any case in which proceedings- for escheat have been instituted." L. 1868, ch. 513, sec. 1, Banks's 9th ed. N. Y. R. S., p. 1784 (repealed L. 1896, ch. 547, §300. "The title of any citizen or citizens of this state, to any land or landa within this state, and now in the actual possession of such citizen or citizens, shall not be questioned or impeached by reason of the alienism of any person or persons, from or through whom such title may have been derived : provided, however, that nothing- in this act shall affect the rights of the state in any case in which proceedings for escheat have been instituted." Same as L. 1807, ch. 123, sec. 2 (except etc. see for comparison Law of 1845) pro- vided this shall not affect the rights of the state in cases which proceedings for escheat have been instituted. L. 1845, ch. 115, sec. 9, Banks's 9th ed. N. Y. R. S., p. 2075 (passed Apr. 30, repealed L. 1896, ch. 547, § 300). "Every grant, devise, demise, lease or mortgage of any land* within this state, heretofore xsisAe. and executed indue form of law by an alien to any citizen of this state, or to any resident alien capable of taking and holding any real estate, or any beneficial interest therein within tliis state or which may hereafter be made and executed by any resident alien capable of taking and holding real estate within this state, to any citizen of this state, or to any resident alien capable of taking and holding real estate, or any beneficial interest therein, and all rents reserved or hereafter reserved on any such lease or demise, and all lawful convenants and conditions in any such lease or demise are Iiereby confirmed, and shall be deemed and taken to be as valid and effectual, as if made by or between citizens of this state." 28 II. ALIENS. 1 R. S. 719, Banks's 9th ed. L. N. Y., N. Y. R. 8. p. 1784, sec. 9 (passed Dee. 10, 1838, took effect Jan. 1, 1830, repealed L. 1896, ch. 547, § 300). "No title or claim of any citizen of this state, who was in the actual possession of lauds on the twenty-first day of April, one thousand eight hundred and twenty-flre, or at any time before, shall be defeated or prejudiced on account of the alienism of any person through or from whom his title or claim to such lands may have been ■derived." N. Y. L. 1836, ch. 397, sec. 3 (passed April 18). "The title of any citizen of this state to any lands or real estate within this state, lieretofore conveyed, or hereafter to be conveyed, in pursuance of any written contract for the sale thereof now existing, shall not be questioned, impeached or defeated, by reason of such title having been derived by, from or through an alien." It can not be discovered that this section of this statute has been repealed. L. 1807, ch. 133, sec. 3, Banks's 9th ed. N. Y. R. S., p. 1784 (passed April 4, re- pealed L. 1896, ch. 547, sec. 300). " That the title of any citizen or citizens of this state to any land or lands within this state, heretofore conveyed to such citizen or citi- zens, and now in the actual possession of such citizen, shall not be questioned or im- peached by reason of the alienism of any person or persons from or through whom such title may have been derived." N. Y. L. 1803, ch. 49, sec. 3, Banks's 9th ed. N. Y. R. S., p. 1784 (passed March 36, repealed L. 1896, ch. 547, sec. 300). " That the title of any citizen or citizens of this state, to any land or lands within this state, lieretofore conveyed to such citizen or citi- zens, and now in the actual possession of such citizen or citizens, shall not be ques- tioned or impeached by -reason of the alienism of any person or persons from or through whom such title may have been derived : Provided, that nothing in the said last clause contained shall extend to the military or bounty lands so called, in the counties of Onondaga and Cayuga." VI. LIABILITIES OP ALIEN HOLDERS OF REAL PROPERTY. Eeal Prop. L., sec. 8 (L. 1896, ch. 547, sec. 8, taking effect Oct. 1, 1896). " Every alien holding real property in this state is subject to •duties, assessments, taxes and burdens as if he were a citizen of the state." 1 R. S. 731, sec. 30, Banks's 9th ed. N. Y. R. S., p. 1786 (passed Dec. 10, 1838, took effect Jan. 1, 1830, repealed by L. 1896, ch. 547, sec. 300). "Every alien who shall hold any real estate by virtue of any of the foregoing provisions, shall be subject to duties, assessments, taxes and burdens, as if he were a citizen of this state; but shall t)e incapable of voting at any election, or of being elected or appointed to any office, or of serving on any jury." L. 1835, ch. SW, sec. 4 (passed April 21, repealed by L. 1828, 2d meeting, ch. 31, sec. 1, par. 453) , practically reincorporated. Ttie law of 1835, however, expressly permitted aliens to serve on a, jury demediatate linguae. Ads affecting section 20. L, 1845, ch. 115, sec. 13, Banks's 9th ed. N. Y. R. S., p. 3076 (passed April 30, 1845, repealed by L. 1896, ch. 547, sec. 300). "Every alien who shall hold any real ■estate by virtue of any of the foregoing provisions, shall be subject to duties, assess- ments, taxes and burdens, as if he were a citizen of the United States; but shall be incapable of voting at any election, or of being elected or appointed to any office, or of serving on any jury.'' Amendment of 1845, ch. 115, sec. 13 — same as R. S., sec. 20, except, 1845 — as if a citizen of the XJ. S. R, S. , sec. 20 — as if a citizen of N. Y. VII. ALIEN DOWER, 29 VII. ALIIN DOWER. Eeal Prop. L., sec. 5. — The provision with regard to dower in land held by an alien contained in sec. 5 of the " Real Property Law " (L. 1896, ch. 547, sec. 5) is as follows : " If a person who has filed such a deposition dies within six years thereafter and before he is admitted to citizenship, his widow is entitled to dower in his real property." 1 R. S. 740, sec. 3, Banks's 9th ed. N. Y. R. S., p. 1814 (passed Dec. 10, 1838, took effect Jan. 1, 1830, repealed by L. 1896, ch. 547, sec. 300). The -widow of any alien who, at the time of his death, shall be entitled by law to hold any real estate, if she be an inhabitant of this state at the time of such death, shall be entitled to dower of such estate, in the same manner as if such alien had been a native citizen." N. Y. L. 1845, ch. 11.5, sec. 2, Banks's 9th ed. N. Y. R. S., p. 3073 (passed April 30, repealed by L. 1896, ch. 547, sec. 300). "The wife of any alien resident of this state, who has heretofore tkaen by convej'ance, grant or devise any real estate and become seized thereof, and who has died before the passing of this act, and the wife of any alien resident of this state, who may hereafter take by conveyance, grant or devise, any real estate within this state, shall be entitled to dower therein, whether she be an alien or citizen of the United States; but no such dower shall be claimed in lands granted or conveyed by the husband before this act shall take effect." Sec. 3. " Any woman being an alien, who has heretofore married or who may here- after marry a citizen of the United States, shall be entitled to dower in the real estate of her husband, within this state, as if she were a citizen of the United States." Alien widow of naturalized citizen, though non-resident during his life, is entitled to dower. Barton v. Burton, 1 Abb. Ct. App. Dec. 271 (1864). Note. — Court equally divided as to construction of Act of Congress of 1855, ch. 71 and N. Y. L. 1845, ch. 333, sec. 3, but the opinion holding residence unnecessary confirmed in 43 N. Y. 177. The several statutes enabling aliens to take and hold real estate, which were passed prior to the 31st of April, 1835, were so far modified by the act passed on that day (Stat. 1835, p. 437) that no alien could subsequently take lands by purchase, without complying with the provisions of that act. Accordingly held that an alien widow, whose husband, being a citizen, purchased lands during their coverture in 1833, and died in 1838, was not entitled to dower within Sutliff v. Forgey, 1 Cow. 89. Curiin v. Mnn, 3 Denio, 229. Alien widow of naturalized citizen, not having taken any steps to become natural^ ized so as to enable her to take and hold lands, can not claim dower, 1 R. S. 720, sec. 17; nor does 1 R. S. 740, sec. 3, give it to her, as that section applies only to "widow of an alien." Connolly v. Smith, 31 "Wend. 60. The widow of a natural born citizen, who was an alien when the act passed in 1803, enabling aliens to purchase and hold lands, is not entitled to dower under the provi- sions of that act, where the lands in which the dower is claimed were acquired by the husbind, and the marriage took place previous to the passage of the act. Priest V. Oummings, 30 Wend. 388, rev'g 16 id, 619. From opinion. — " The estate of the wife as tenant in dower is but a continuance of the estate of the husband, so that if he acquires land by purchase, or other con- veyance to himself, she, by virtue of the same purchase, if then of legal capacity to take an inchoate right of dower, takes it as a purchaser by the same conveyance, in the same manner as if he had taken a conveyance to himself, and a limited remainder in one-third of the premises to his wife for life, in case she survive him." 30 II. ALIENS. Alien widow of natural born citizen can upt be endowed by reason of her alienism, nor can ske take by devise without having taken the requisite steps towards naturali- zation, by reason of the provision of our Statute of Wills, 2 R. S. 57, sec. 4. Mick V. Miek, 10 Wend. 379. Her alienage is a bar by 1 R. S. 720, sec. 17; had she acquired rights under Statutes of 1803-1808, she would be regarded as a capable purchaser, and therefce dowable. See Forgey v. Sutliff, 1 Cow. 89. Alien widow, qualified under provisions of Act of 1802, 3 R. L. 543, to take land as a purchaser, is entitled to dower. See Forgey v. Sutliff, 5 Cow. 713. Sutliff V. Forgey, 1 Cow. 89. VIII. ALIENISM OF ANCESTOR. Eeal Prop. L., sec. 294. (L. 1896, ch. 547, taking effect Oct. 1, 1896). "A person capable of inheriting under the provisions of this article, shall not be precluded from such inheritance by reason of the alienism of an ancestor." 1 R. S. 754, Banks's 9th ed. N. Y. R. S., p. 1837 (passed Dec. 10, 1838, took efleo Jan. 1, 1830, repealed by L. 1896, ch. 547, sec. 300). Sec. 33. ' ' No person capable of inheriting under the provisions of this chapter, shall be precluded from such inheri- tance, by reason of the alienism of any ancestor of such person." Note in each case the section refers and applies to its own chapter or article, i. e., that of "descent of real property" and does not properly concern or effect in anyway «. g. section 6, Rev. 1896, and statutes thereunder traced, nor sec. 6 Rev. 1896, and statutes thereunder traced, much less sec. 7, Rev. 1896. By the common law rule of descents the alienage of common grandfather does not impede descent between cousins, the children of brothers who were citizens and capa- ble of transmitting by descent. The rule that the descent between brothers is immediate, and not impeded by the alienage of their father, holds also between one of the brothers and the representative of the other, and also between the representatives of both of them. McGregor v. Corn- stock, 3 N. Y. 408. The twenty-second section of the statute regulating descents, which provides, that no person capable of inheriting real estate " shall be precluded from such inheritance by reason of the alienism of any ancestor of such person," protects the inheritance whether the claimant derives title through lineal or collateral ancestors, or through both." The word " ancestors" by its established import, when used in relation to succes- sion to real estate by descent, embraces both lineals and collaterals. Denis McCarthy, a naturalized citizen, died in 1835, in the city of New York, intes. tate and without issue, seized of real estate in that city. Denis McCarthy, of Saratoga, who was naturalized in 1834, and was a great-grandson of Daniel McCarthy, a brother of Timothy McCarthy, who was the grandfather of the deceased Denis, claimed the estate of which the latter died seized, as his heir at law; all the ancestors of the latter, and of the claimant, having died aliens. Construction. — The claimant was entitled to the estate. A record of the judgment of a competent court admitting an alien to become a citi- zen, and reciting the facts which entitled the alien to such judgment, can not be im- peached by proof contradicting those recitals. In all collateral proceedings such record is conclusive. McCarthy v. Marsh, 5 N. Y. 363. Note. — "By the common law the plaintiff could not have inherited the estate in controversy from Denis McCarthy of New York, because he traces the descent of the land through aliens, who, having no inheritable blood, were incapable not only of VIII. ALIENISM OF ANCESTOR. 31 taking by inheritance, but through whom it could not be transmitted. Jackson v. Green, 7 Wend. 333 ; The People v. Irvin, 31;Wend. 138 ; 10 Wend. 9, Jackson v. Pltzsimmons; 3 Comstock, 408, McQ-regor v. Comstock." (p. 374.) The statute (1 R. S. 754, sec. 33), which provides that no person capable of inherit- ing real estate shall be precluded from such inheritance by reason of the alienism of any ancestor of such person, enables those only to inherit who would be entitled to the estate by the ordinary laws of descent on the death of the person last seized, but for the alienism of some person through whom title is deduced. It does not enable a person to take an estate by inheritance who deduces title by de- scent through a living alien relative of the deceased, who would himself inherit the estate were he a citizen. Accordingly, where decedent left him surviving a sister, and a niece, her daughter, the former an alien and the latter a citizen ; held, that the niece did not take his real estate by inheritance. McLean and wife v. Swanton, 13 N. Y. 535. From opinion. — "The argument of plaintiff's counsel, to avoid this view of the subject, was, in effect, that the existence of the plaintiff's mother might be disre- garded, upon a doctrine thus expressed by Chancellor Kent : ' If a citizen dies, and his next heir be an alien, who can not take, the alien can not interrupt the descent to others and the inheritance descends to the next of kin who is competent to take, in like manner as if no such alien had ever existed.' 3 Kent's Com. 56. The d fficulty of this position is, that if the name of the mother be stricken from the plaintiff's genea- logical chart, it will not appear that she has any connection with Ilobert Swanton, whose heir she claims to be. The cases to which the doctrine referred to in the Com- mentaries applies, are those in which the claimant does not make title through the alien, but where she can deduce her pedigree from the person dying seized, by leaving out or passing by the alien. All the cases decided in this country, where an alien would have taken the estate but for his alienage, and in which a more remote heir was preferred, were cases of the same character, the successful claimant making out his ■descent independent of and not through the alien. Orr v. Hodgson, 4 Wheat. 403 ; Lessee of Levy v. McCartee, 6 Pet. 103; Jackson v. Lun, 3 John. Uas. 109; Jackson v. Jackson, 7 John. 314; Orser v. Hoag, 3 Hill, 79; Jackson v. Green, 7 Wend, 333." The nephew of a person dying intestate and seized of a state of inheritance, although a naturalized citizen, is not capable of inheriting the estate, if his father be An alien and living at the time of the decease of the person last seized, notwithstand- ing the provision of the statute of descents, " That no person capable of inheriting, etc., shall be precluded from such inheritance by reason of the alienism of any ancestor of such person." Our statute is substantially like the act of 11 and 13 Wm. Ill, ch. 6, and must re- ceive the same construction, viz. . that it does not enable a person to deduce title through an alien ancestor still living. People v. Irv in, 31 Wend. 138 (1838). No one who is obliged to trace his descent through an alien can inherit real estate, if the death of the owner happened previous to the 1st of January, 1830, until when the statute 11 and 13 William III, ch. 6, was not incorporated into our law of descent ; so held where the children of a naturalized citizen claimed that their father was the heir of a naturalized citizen, they being obliged to trace their descent through their grandmother, who was an alien. It seems, however, that this rule would not apply where the claimant was a brother of the person last seized ; the descent from brother to brother is considered immediate, but not so from cousin to cousin. Jackson v. Jackson, 7 Wend. 333. See Collingwood v. Pace, 1 Ventr. 413. The fifth canon of the statute of 1786, regulating descents, does not confer the -capacity upon alien nephews and nieces to inherit lands ; its only effect is to alter the rule of descent as it existed at common law. Jackson v. Fitz Simmons, 10 Wend. 9. Where there is a failure of inheritable blood by reason of alienism, the lands do 32 II. ALIENS. not escheat, but go to the next lieir. Thus, where the granddaughter is an alien, the- brother and his representatives, not being aliens, inherit. Jackson v. Jackson, 7 Johns. 314. In New Yorls a citizen can not inherit collaterally from another citizen, where the former must make his pedigree through mediate alien ancestors. There is a review of common law as to mediate and immediate lineal and collateral descent. Le-oy'i Lessees v. M'Oai-tee, 6 Pet. 103. IX. PR@PBRTY RIGHTS OP ALIENS UNDER TREATIES. A treaty is, by virtue of the Constitution of the United States, a part of the supreme law of the land, and supersedes all local statutes that contravene its provisions. By force of the treaty of 1783 and the treaty of 1794, an alien son may inherit from an alien father who was never attainted by treason. An alien may take by purchase, and hold against all parlies except the state claim- ing under inquest of office. Munro v. Mercliant, 38 N. Y. 9. Where a treaty between the United States and Wurtemburg provides that when land in the territory of the one would descend upon a citizen of another, except for his alienage, such citizen should be allowed a term of two years to sell and remove the proceeds, it was held that for the period of two years the treaty conferred upon him the same rights he would enjoy if he were a resident heir, simply imposing upon him the obligation to sell within the prescribed time or declare his intention of be- coming a citizen of this country. "All the rights of the state are suspended by the treaty for the full period of two years, and all the rights of other heirs over the property are also suspended by the operation of the treaty." KuU v. Kull, 37 Hun, 476. To same effect is BoUerman v. Blake, 94 N. Y. 635 ; s. c, 34 Hun, 187. A& to the effect of treaties in overriding local statutes, see People v. Snyder, 41 N. Y. 397 ; Hanenstein v. Lynham, 10 Otto, 483 ; Chirac v. Chirac, 3 "Wheat. 359 ; Fairfax devisees v. Hunter's lessee, 7 Cranch, 637 ; Ware v. Hylton, 8 Dallas, 99 ; Orr v. Hodgeson, 4 Wheat. 453 ; Hughes v. Edwards, 9 id. 489. The treaty of 1794 by the term "assigns" embraced, in its spirit, all who should succeed to the title of the original owner by any other means than by descent. And it conferred upon the devisee of such original owner, although an alien, all the- rights which he could have had if he had become naturalized ; consequently such devisee could grant or devise the land to anyone competent to take. Watson v. Donnelly, 38 Barb. 658. The 6th article of the treaty of 1783, not only barred the escheat of lands held by British subjects in this state, but gave them capacity to transmit them by descent ; but the descent must be to a citizen. Where a British subject holding lands here died previous to the treaty of 1794, leav- ing no citizen heirs, his land escheated and the provisions of the treaty did not pass the lands to alien heirs. The act of 1845 (L.iws 1845, p. 94) does not operate to confirm a title previously conveyed by an alien heir of one holding real estate. The exception, established in Jackson v. Lunn, 3 Johns. Cas. 109, and Kelley v. Harrison, 3 id. 39, where British subject owns lands at commencement of revolutionary war, recognized, but declared inapplicable to present case. Brown v. Sprague, 5 Denio, 545. Where a person dies leaving issue, some of whom are aliens, and others citizens, the former are not deemed his heirs at law ; but the estate descends to the latter in the same manner as if there were no other issue in existence. IX PROPERTY RIGHTS OP ALIENS UKDER TREATIES. 33 The treaties of 1783 and 1794 between the United States and Great Britain only provide for then existing titles; and consequently no claim to lands can be established in virtue of either, where the claimant is unable to show a title in himself or his ances- tors at the time of the treaty made. A further and more full discussion in the United States courts and elsewhere has resulted in showing conclusively that the alien heir can not inherit as the common law disability applies in all its force, and accordingly the distinction upon which the ex- ception to the general rule was sought to be sustained in Jackson v. Lunn has been re- peatedly repudiated, as unfounded in law or reason. Orser v. Hoa^, 3 Hill, 79; Jack- son V. Lunn overruled in part. Citing, Danson's lessees v. Godfrey, 4 Or. 331; Inglis v. Trustees, 3 Pet. 121; Fair- fax devisees v. Hunter's lessees, 7 Or. 603; Orr v. Hodgson, 4 Wheat. 453; Blyth's les- sees V. Eochester, 7 id. 535; Jackson's lessees v. Burns, 3 Binn. 75. ,' K., a native of Ireland, removed to New York in 1760, where he continued tO reside until his death in 1798. He left a wife in Ireland, at the time he removed from that country. His wife never left that country but continued a subject to the king of Great Britain. It was held that the wife of K., being an alien, could recover dower of those lands only of which K. was seized before the American Revolution, or the fourth of July, 1776, and not of those he acquired after that period. The division of an empire works no forfeiture of a right previously acquired. Kel- ley V. Harrison, 2 Johns. Gas. 29. Though in case of a purchase, the law will recognize the title of an alien in lands until office found; yet in case of a descent, the law takes no notice of an alien heir, on whom, therefore, the descent is not cast. But where the title to land in this state was acquired by a British subject prior to the American Revolution, it seems, that the right of such British subject to transmit the same, by descent, to an heir, in esse, at the time of the revolution, continued unaltered and unimpaired; the case of a rev- olution or division of an empire being an exception to the general rule of law on this subject. Oansevoorl v. Lunn, 3 Johns. Cas. 109. Calvin's Case, 7 Cow. 27b. See Orser v. Hoag, 3 Hill, 79, in part overruling this case. 5 Ill COEPORATIONS. I. GENERAL POWER TO TAKE, p. 84. II. RE.STRICTIONS ON THE POWER TO TAKE BY DEVISE, p. 84. 1. BY REVISED STATUTES, p. 3-i. 2. BY LAW OF 1848, OH. 319, SEC. 6, AND BY LAW OF 1860, CH. 360, p. 37. III. LIJIITATIONS OF AMOUNT, p. 43! IV. ACQUIRING PROPERTY IN PLACE OF THAT CONVEYED, p. 46. V. ACQUISITION OF REAL PROPERTY BY FOREIGN CORPORA- TIONS, p. 46. I. GENERAL POWERS. General Corporation Law (L. 1892, oh. 687, Banks's 9th ed. K Y, E, S., p. 978), sec. 11. "Every corporation, as such, has powei', though not specified in tlie law under which it is incorporated ; " Subdiv. 3. " To acquire by grant, gif b, purchase, devise or bequest, to hold and dispose of such property as the purposes of the corporation shall require; subject to such limitations as may be prescribed by law." L. 1890, ch. 563, sec. 8, subd. 3, reads: "To acquire by grant, gift, devise, or bequest,- and to dispose of such property as the purposes of the corporation shall require, not exceeding the amount limited by law." (Not in terms repealed.) 1 R. S. 600, sees. 1, 2 (repealed L. 1893, ch. 687). Sec. 1. "Every corporation, as such, has power (4) to hold, purchase, and con- vey such real and personal estate, as the purposes of the corporation shall require, not exceeding the amount limited in its charter." Sec. 2. " The powers enumerated in the preceding section, shall vest in every corporation that shall hereafter be created, although they may not be specified in ita charter or in the act under which it shall be incorporated." II. RESTRICTION ON POWER TO TAKE BY DEVISE. 1. BY REVISED STATUTES. At common law a corporation had power to take by devise, post, p. 36, (see, also, Dillon's Munic. Corp., sec. 566) ; but 2 R. S. 57, sec. 3, Bunks's 9th ed. N. Y. R. S., p. 1875, provides: "No devise to a corporation shall be valid, unless such corporation be expressly authorized by its charter or by statute to take bv devise." Tiais statute is not in terms repealed, and the question has arisen whether it is superseded by sec. 11, subd. 3, supra. On this subject see Banks's 9th ed. N. Y. R. S., p. 1875 ; also Chaplin's Express Trusts (34) II. RESTRICTION ON POWER TO TAKE BY DEVISE. 35 and Powers, § 112. As. the section last quoted is not expressly re- pealed it must be read in connection with sec. 11 of ch. 687, L. 1892. The result of such reading would be to prohibit, in the absence of other statutory authority, corporations from acquiring by devise prop- erty other than that required for corporate purposes.* A devise to an unincorporated association is void. Under 2 K. S. 57, sec. 3, prohibiting devises to a corporation not expressly authorized to take, a power which would operate to give the rents and profits of land to corporations not expressly authorized to take by devise, would be void. But a power to sell the land would be valid, for such a corporation may take money or personalty by testamentary gift, even though raised by the conversion of land. A provision in the charter of a corporation enabling it to take land " by direct purchase, or otherwise" is an express authority within the meaning of the statute of wills. A devise to a charitable purpose can not be sustained, if made to a corporation in violation of the statute of wills. Downiny v. Marshall, 33 N. Y. 366 (1861). From opinion. — (The case of McCartee v. The Orphan Asylum Society, 9 Cow. 437, the effect of 3 R. S. 57, sec. 3, upon it, and the mortmain policy of our statutes is discussed.) "In this form the statute (2 R. S. 57, sec. 3) was designed to be prohibitory, and to leave no room for the subtleties and refinements which had obscured the subjects. The language is so broad as to include every interest which is capable of being devised. Uses and trusts not less than legal estates, fall under the prohibition. (See next case.) A devise of real estate direct to a corporation is void within the statute of wills as enacted in 1 R. L. 364. Otherwise, it seems, had there been a trust (insisted on at large, in the dissenting opinion of Stebbins, senator, and supported by Jones, chan- cellor, arguendo for his decree). McOartee v. Orphan Asylum Society, 9 Cow. 437 <1837). The English statute of charitable devises, of devises in mortmain, or of wills or devises to corporations, and the common law, and the rules of the English chancery on these subjects, independently of statutes, and a comparison between the English and New York statute law on these subjects, and a very full review and history of the cases on the same subjects, both English and American, peir Jones, chancellor, in support of his opinion that, though a devise directly to a corporation may be void by the statute of wills (1 R. L. 364), yet a devise to a natural person, in trust for a corporation, is good. And this was not questioned by the court of errors. See, also. Theological Seminary of Auburn v. Childs, 4 Paige, 419. By common law, and in the absence of statutory prohibitions, corpo- rations, in whatever manner created, could take by all the usual * General Corporation Law (L. 1892, ch. 687, am'd L. 1895, ch. 672) , sec. 10. " No corporation Bhall possess or exercise any corporate powers not given by law, or not necessary to the ex. ercise of the power so given." A similar provision is to be found in L. 1890, ch. 563, sec. 9, and 1 R. S. 600, sec. 3. (This seo- Mon, together with whole of ch. 18 of Part. 1 of R. S., repealed by L. 1892, oh. 687.) See Dillon's Munic. Corp., sec. 561, ef. seg. 86 III. CORPORATIONS. methods of acquiring property. By the statute of wills (2 R. S. 57, sec. 3), they are now prohibited from taking lands by devise unless ex- pressly authorized by their charters or by statute, but they may still acquire personal property in any manner. A foreign corporation is competent to take personalty in this state, by bequest. Although it has no legal existence out of the state of its creation, its existence in that state may be recognized in this state ; and its foreign residence creates no insuperable objection to its receiving a gift of money by will from a resident of New York, if it be authorized generally by its charter to take such gifts. Sherwood v. American Bible Society, 4 Abb. Ct. App. Dec. 227. The trustees of a religious society, under Laws of 1813, can not take a trust for the sole benefit of members of the church as distinguished from other members of such congregation. Gram v. The Prussia Emigrant, etc., Grerman Society, 36 N. Y. 161. Religious societies incorporated under the Act of 1813 are not expressly, or even impliedly, authorized to take lands by devise, for any purpose whatever, when such devise is made after their incorporation, and a devise to them is consequently void. Ooddard v. Pomeroy, 36 Barb. 546. Citing Theological Seminary of Auburn v. Childs, 4 Paige, 419; Ayres v. The Methodist Episcopal Church, 3 Sandf. S. C. E. 351; King v. Rundle, 15 Barb. 139. In Levy v. Levy, 33 N. Y. 97, it is said at p. 134: " But it seems clear to me that neither the statute of 1813, nor the general statute, which defines and regulates the powers of all corporations, and enumerates those that they possess (1 R. S. 600), rec- ognizes the action of religious corporatioas, as trustees, for purposes outside of thos& contemplated by their incorporation." See, also, Wilson v. Lynt, 30 Barb. 134. A devise to a church society was held to be void, as the corporation could not take by devise. EJing v. Bundle, 15 Barb. 139. A bequest to a religious society, as such, is valid where there is no doubt or uncer- tainty as to who was the legatee intended, although the society is not incorporated. Banks v. Phelan, 4 Barb. 80. Municipal Corporations. " Bodies politic and corporate " were expressly excepted from those capable of taking by devise in 1 R. L. 364, ch. 23, sec. 1 ; also by L. 1787, ch. 47, "An act to reduce the law concerning wills into one stat- ute." But by section 11, subd. 3 of the General Corporation Law,, every corporation is to have the power to acquire by devise such prop- erty as the purposes of the corporation shall require, subject to such limitations as may be prescribed by law. The last clause of the section provides that subdivisions 4 and 5 shall not apply to municipal corpora- tions; hence, subdivision 3 does. In the absence of a special grant of power by statute, a town can not act as trustee of property given for charitable purposes. II. RESTRICTION ON POWER TO TAKE BY DEVISE. 87 A testamentary gift to a town, ia order to take efiEect as an absolute one, must be for one or all of the purposes for which the corporation was created. Fosdick V. Town of Hempstead, 125 N. Y. 581, digested p. 864 The laws of this state do not prohibit a testamentary bequest to a foreign municipality, and the ability to take depends upon the law of the legatee's domicil. Matter of Huss, 126 N. Y. 537, citing Cham- berlain V. Chamberlain, 43 id. 424. Legacy to a town, to be used in the erection of a town hall — construction of the terms of the will as to the uses to which the building may be put. Button v. Ely, 46 Hun, 100, In the absence of statutory prohibition, a municipality may take by voluntary gift or devise. See Le Couteulx v. City of Buffalo, 33 N. Y. 333; Vail v. Long Island R. Co., 106 Id. 383; Coggeshall v. Pelton, 7 Johns. Ch. 292; see Dillon's Munic. Corp., sees. 566, etseq. For power of corporation to hold property in trust, see Dillon's Munic. Corp., sees. 567, 573, et seq. ; also post, p. 715. 2. BY LA.W OF 1848, CH. 319, SEC. 6, AND LAW of 1860, OH. 360. But the right to take by devise is still limited by L. 1860, ch. 360, L. 1848, ch. 319, sec. 6, which section was expressly excepted in the repeal of that law by the membership Corporation Law. L. 1848, ch. 319, Banks's 9th ed. N. Y. E. S. , p. 1875, An act for the incorporation of benevolent, charitable, scientific and missionary societies. Sec. 6. " Any corporation formed under this act shall be capable of taking, holding or receiving any property, real or personal, by virtue of any devise or bequest contained in any last will or testa- ment of any person whatsoever, the clear annual income of which de- vise or bequest shall not exceed the sum of ten thousand dollars ; pro- vided, no person leaving a wife or child or parent shall devise or be- queath to such institution or corporation more than one-fourth of his or her assets, after the payment of his or her debts, and such devise or be- quest shall be valid to the extent of such one-fourth, and no such de- vise or bequest shall be valid, in any will which shall have been made or executed at least two months before the death of the testator.* People's Trust Co. v. Smith, 82 Hun, 494; Beekman v. People, 27 Barb. 304; * L. 1365, ch. 363, An act for the incorporation of societies or clubs for certain social or recre- ative purposes. Sec. 6. Same provision as above, L. 1843, ch. 319, sec. 6. L. 1875, oh. 343, An act for the incorporation of library societies. Sec. 5, Same provision as above, L. 1848, ch. 319, sec. 6. A provision, preventing a testator, leaving S'wlfe, child or parent, from devising more than one-fourth of his estate, after payment of debts, is inserted in L. 1887, oh. 315, sec. 5, for incorporation of Fire Departments; L. 1887, ch. 317, for incorporation of Bar Associations; L. 1886, ch. 236, for incorporation of Political'CIubs. The statute of 1855 (L. 1855, ch. 230)forbiddiag grant, conveyance, devise or lease of personal or real estate to any person and his successor in ecclesiastical office, was repealed by L. 1863, ch. 147. 38 III. CORPORATIONS. Betts V. Betts, 4 Abb. N. C. 317; Carpenter v. Historical Soc, 3 Dem. 574; Lawrence V. Elliott, 3 Redf . 235. L. 1860, ch. 360, Banks's 9th. ed. K Y. E. S., p. 1875. An act relating to wills. Sec. 1. " No person having a husband, wife, child or parent, shall, by his or her last will and testament, devise or bequeath to any bene- volent, charitable, literary, scientific, religious or missionary society, association or corporation, in trust or otherwise, more than one-half of his or her estate, after the payment of his or her debts (and such devise or bequest shall be valid to the extent of one-half, and no more)." Sec. 2. "All laws and parts of laws inconsistent with this act are hereby repealed." Harris v. American Bible Society, 3 Abb. Ct. App. Dec. 316 ; 4 Abb. N. S. 431 ; Beekman v. People, 37 Barb. 304 ; Dowd's will, 8 Abb. N. C. 118; Final Accounting in Leary's Estate, 1 Tuck. 335 ; "Wardwell v. Home for Incurables, 4 Dem. 473. The existence of a corporation organized under the laws of a sister state is recognized by the courts of this state, and they may take per- sonal property under wills executed by citizens of this state, if, by the laws of their creation, they have authority to acquire property by bequest.' For the purpose of ascertaining the estate, only half of which can be devised to charitable or educational corporations, under the act of 1860, the widow's dower and the debts are to be first deducted, A testator can not give to two or more corporations in the aggregate more than he can give to a single object, viz., one-half of his estate, Chamberlain v. Chamberlain, 43 N. Y. 424. (See Conflict of Laws.) ' See, also, Riley v. Diggs, 2 Dem. 184. A subsequent amendment of its charter, imparts no vitality to a devise to a corporation, not authorized to talie at the time of the death of the testator.' A devise to a corporation organized under the laws of another state, is void, unless it is authorized so to take by a statute of this state, although by its charter it had that authority." White v. Howard, et al., 46 N. Y. 144; 52 Barb. 294. ' See, also, Leslie v. Marshall, 31 Barb. 562. » See, also, Boyce v. City of St. Louis, 39 Barb. 650. Devise to corporation is not defeated by non-user. Matter of Irustees of Cong. Church, 131 K Y. 1. ^ By its charter (sec. 4, ch. 244, L. 1849), the power given to a charitable society was " to receive by gift or devise, in the same man- ner and subject to the same restrictions as provided in the general laws for the incorporation of religious and benevolent associations," (ch. 319, L. 1848) which act (sec. 6) declared that no devise or bequest to II. RESTRICTION ON POWER TO TAKE BY DEVISE. 39 corporations formed under the act should be valid, unless the will was made and executed two months before the testator's death; and it appearing that the will was made within such time, the bequest was void. The act of 1848 was not repealed by ch. 360, L. 1860, relating to wills (People v. Clute, 50 N. Y. 451) ; but the dissenting opinion cites Pierce v. Delamater, 1 Oomst. 17 ; Potter's Dwarris on Stat. 154. Even if it repealed, the repeal did not aflEect a special charter of which it was a part. Lefevre v. Lefevre^ 59 K. Y. 434. The provision in section 6 of chapter 319 of 1848 requiring a will to be executed two months before the death of the testator was not altered or repealed by chapter 641 of 1881. Matter of Connor, 44 Hun, 424. Corporation, when subject to the limitation imposed by section 6 of chapter 319 of 1848 — power to take property by "devise or otherwise " includes "bequests" — a bequest to a corporation, incorporated under chapter 413 of 1869, invalid when the testator died within two months. People's Trust Company v. Smith, 83 Hun, 494. Requests to charitable and religious corporations in or out of this state — are not valid unless made two months prior to the death of the testator — how the amount of a legacy, limited upon a life estate, is to be determined — 1848, ch. 319, sec. 6 ; 1879, ch. 51 ; 1860, ch. 360. HolUs v. Eollis, 29 Hun, 325. A corporation chartered by special act may be made subject to general act (ch. 319, L. 1848, amended by ch. 51, L. 1870) provid- ing for the incorporation of benevolent and other societies, which restricts their capacity to take under a will. The provision of the act of 1870 (ch. 129, L. 1870), amending ch. 99, L. 1839, incorporating the Union Theological Seminary of the City of New York, which limits the power of that corporation to take and hold by gift, grant, or devise, by subjecting it " to all the provisions of law relating to devises and bequests by last will and testament " makes applicable thereto the act of 1848, sec. 6, which declares that no devise or bequest to any corporation formed under it, by one leaving wife, child, or parent, shall be valid in any will which shall not have been made and executed at least two months before the death of the testator; and also makes applicable the act of 1860, ch. 360, prohibit- ing devises or bequests to certain societies to more than one-half of the testator's estate. The act of 1860 does not repeal two months' clause in act of 1848. Lefevre v. Lefevre, 59 K Y. 434. The right of a corporation to take by devise or bequest is subject to the general laws of the state in regard thereto, passed subsequent to its incorporation. The act of 1853 (Pennsylvania) prohibiting devises or bequests to any body politic, or person in trust for religious or charitable uses, un- less by will executed at least one month before testator's death, affects 40 III. CORPOEATIOKS. the power to take as well as the power to devise, and precludes a religious corporation of that state from taking a bequest to it in trust for such purposes by a will executed in this state by a citizen thereof within one month of his death, and such bequest is void. Chamber- lain V. Chamberlain, 43 N. Y. 424, distinguished. The will gave to wife the net income derived from his estate, after payment of the legacies, during her life, and the principal left of the estate after her death to various societies. The sums attempted to ba bequeathed by the void legacies as above were to be distributed as in case, of intestacy. Kerr v. Dougherty, 79 N. Y. 327, a£E'g 17 Hun, 841. Eesiduary estate was devised to the " Eoman Catholic Little Sisters of the Poor of the City of New York ; " the will was executed within two months of the death of the testatrix, and the devise was void. If the society was unincorporated it could not take ; if incorporated it could not take under sec. 6,. ch. 319, L. 1848. Marx v. McGlynn, 88 N. Y. 857. A devise or bequest to a corporation organized under the act of 1848 (ch. 319, L. 1848) providing for the incorporation of "benevolent, charitable, scientific and missionary societies," contained in a will made within two months of the testator's death, is, by the terms of the ex- ception in the provision of said act (sec. 6), authorizing such corpora- tions to take by devise or bequest, invalid, although the testator leave no wife, child, or parent. When a missionary society (sec. 2, ch. 41, L. 1862) was authorized to take by bequest or devise " subject to the provisions of law relating to bequests and devises to religious societies," the exception in the pro- vision of the act of 1860 applied, and a bequest to the society, in the will of one who died within two months after the execution of the will, was invalid. Stephenson v. Short, 92 N. Y. 433, aff'g 27 Hun, 880. Where the charter of a corporation contains a provision to the effect that it shall be subject to all provisions of law in relation to devises by will, such provision makes the corporation subject to the limitations of chapter 319 of the Laws of 1848. Fair- child v. Bd8on, 77 Hun, 298. Grifts to charitable, benevolent, scientific, or educational institutions are not against public policy, and there is no public policy outside of the statutes which condemns testamentary gifts to such institutions, although contained in a will executed within two months of the testa- tor's death. The provision of the act of 1848 (sec. 6, ch. 319, L. 1848), provid- ing for the incorporation of such institutions, which declares invalid a devise or bequest to " any incorporation formed under this act," in a will not made and executed " at least two months before the death of II. RESTRICTION ON POWER TO TAKE BY DEVISE. 41 the testator," applies only to corporations organized under that act and the acts amendatory thereof. (Ch. 239, L. of 1861 ; eh. 526, L. of 1881.) Foreign corporations stand, in this particular, in the same position as •domestic corporations. A gift in a will, executed within two months of the testator's death, to a foreign scientific and educational corporation which was em- powered to take such gift by the law of the state where it was chartered, was valid. Kerr v. Dougherty, 79 N. Y. 327 ; Lefevre v. Lefevre, 59 id. 434, distinguished. In determining whether the will of a person who died " leaving a wife, child, or parent," gives to corporations of the classes above speci- fied more than the law permits, i. e., more than one-half of his estate after payment of debts (ch. 360, L. 1860), the whole estate must be treated as if converted into money at his death, and the money value of the portion or interest so given ascertained ; if this is not more than one-half of the whole, the statute has not been violated. The will of H. directed his executors to convert the bulk of his estate into money, to invest the same, and to pay the income of differ- ent portions thereof to certain persons named during their lives, respectively, and upon their deaths give the principal sums to certain scientific and educational corporations. Construction : In determining whether the statutory limit had been exceeded, the value, at the time of the testator's death, of the portion of the estate so disposed of, should be ascertained, from which could be deducted the values of the life estates, computed according to the proper annuity tables, and the balance would represent the value of the remainders given to said corporations ; and, it appearing that this was less than one-half of the value of the testator's estate at the time of his death, said bequests were valid. Hollis v. Brew Theological Seminary, 95 K Y. 166. See, also, Currin v. Fanning, 13 Hun, 463.' Bequests and devises to religious societies incorporated under the act of 1813, and the acts amendatory thereof and supplementary thereto are not subject to the pro- visions contained in section 6 of chapter 319 of L. 1848. Harris v. American Baptist Mome Missionary Society, 33 Hun, 411. The will of B., after various devises and bequests, which disposed of but a small portion of his property, directed that his residuary estate, most of which was personalty, be divided into two parts, one of said parts ^' to be paid " to a religious corporation, the other to a college named. ' Rich V. Tiffany, 3 App. Div. 25, and cases there cited. 6 42 III. CORPORATIONS. The gifts were in conflict with the provisions of the statute for- bidding testamentary gifts to religious and other charitable corpora- tions in certain cases in excess of one-half of the testator's property (ch. 860, L. 1860). Chamberlain v. Taylor, 105 N. Y. 185; same will, 43 id. 424. K. died in 1887, leaving a will executed in the month previous to his death, by which he devised and bequeathed one-third of his residu- ary estate to a charitable corporation organized in 1866 under and by special act (ch. 201, L. of 1866), which provides (sec. 7), that " said corporation shall possess the general powers and be subject to the gen- eral restrictions prescribed in the 3d title of the 18th chapter of the Eevised Statutes, and also subject to the provisions of title 7, part 1 of chapter 18 of the Eevised Statutes in relation to devises or bequests by will." Chapter 18 of the Eevised Statutes proper contains but four titles and contains no provision in relation to devises or bequests by will, but chapter 18 of the unofficial edition, known as the fifth edition, which was published in 1859, and was in general use, cited in the courts by lawyers and judges as the Eevised Statutes, contains a title (7) which embodies the general act for the incorporation of charitable so- cieties (ch. 319, L. of 1848), with amendments thereto, including the provision (sec. 1) that no bequest or devise to any corporation formed thereunder will be valid, unless " made or executed at least two months before the deafh of the testator." Construction : By the reference in tTie charter the edition of the Eevised Statutes then in use was to be considered as intended ; and so, the. bequest or devise in question was invalid ; also, the court might take judicial no- tice that the fifth edition was in common use when said act of incorpo- ration was passed. Matter of Will of Kavanagh, 125 N. Y. 418, aff'g 53 Hun, 1. The provision of the Eevised Statutes (1 E. S. 773, sec. 1) prohibit- ing the suspension by will of the power of alienation for a longer period than two lives in being at the death of the testator, does not, nor do the statutory provisions invalidating testamentary gifts to certain corpora- tions, unless made a certain time before the testator's death, where he has a wife, children or parents, interdict bequests within the prohibition made in another country to take efifect here, and such bequests, if valid at the domicil of the testator, are valid here. Those statutory provi- sions apply to domestic wills which, by their provisions, are to be exe- cuted here. Hollis v. Drew Theo. Seminary, 95 K Y. 171 ; Cross v. U. S. Trust Co., 131 id. 330; Hope v. Brewer, 136 id. 126. Dammert V. Osborn, 140 id. 30, digested p. 470. III. LIMITATION OF AMOUNT. 43 III. LIMITATION OF AMOUNT. Gren'l Corp. Law (L. 1892, ch. 687, and L. 1894, ch. 400), Banks's 9th ed. N. Y. R S., p. 978. Sec. 12. " If any general or special law heretofore passed, or any cer- tificate of incorporation, shall limit the amount of property a corpora- tion other than, a stock corporation may take or hold, such corporation may take and hold property of the value of three million dollars or less, or the yearly income derived from which shall be five hundred thousand dollars or less, notwithstanding any such limitations. In computing the value of such property, no increase in value arising oth- erwise than from improvements made thereon shall be taken into ac- count." L. 1892, ch. 687, sec. 12, same clauses rearranged. By L. 1889, ch. 191, religious, educational, literary, scientific, benevo- lent or charitable corporations, or corporations organized for hospital, infirmary or other than business purposes, are forbidden to take and hold property in excess of two million dollars, or the yearly income of one hundred thousand dollars. Same provision in regard to computing value. It was provided that the act should not affect the right of such a corporation to take in excess of the specified amount, provided such right was granted by special statute. By L. 1890, ch. 497, the amount was increased to three million, or annual income of two hundred and fifty thousand dollars. By L. 1890, ch. 553, am'd L. 1889, ch. 191, bible, missionary and tract corporations, or corporations organized for the enforcement of laws relating to children or animals, were included, the amount increased to three million dollars, or yearly income of two hundred and fifty thou- sand, and it was provided that the corporations enumerated might take and hold in their own right, or in trust for any purpose comprised in the objects of its incorporation. The provision of the Revised Statutes limiting the amount of prop- erty which incorporated colleges may take and hold by gift, grant, or devise (1 R. S. 460, sec. 36), is not confined to colleges incorporated by the regents of the university under the general laws of the state, but applies also to such an incorporation created by special charter, unless inconsistent provisions are to be found in the charter. The provisions of the act of 1840 (ch. 318, L. 1840), as amended in 1841 (ch. 261, L. 1841), authorizing the creation of trusts to incorpo- rated colleges, by grants, devises or bequests, do not repeal or affect the general law limiting the amount of property which may be taken and held by such a corporation. Chamberlain v. Chamberlain, 43 N. Y. 424. The distinction between the taking and holding of property by 44: III. OORPOKATIONS. corporations recognized in relation to English corporations, subject to the mortmain laws of that country, is not applicable in this state. Where, in a special charter granted to an institution of learning, a limitation is put upon its power to hold property, in the absence of some plain and controlling circumstance showing a contrary intent, it must be construed as limiting the taking, as well as holding beyond the amount specified ; and a devise or bequest to it, exceeding the amount or value it is permitted to take, is void for the excess. The provision of the charter of Cornell University (sec. 5, ch. 585, L. 1865), declaring that the corporation" thereby created might hold property " not exceeding $3,000,000 in the aggregate," prohibited its taking, as well as holding, beyond that amount ; and, it appearing that the university already held property up to the limit, a bequest to it was void; also, the heirs or next of kin of the testatrix could raise the question. Leazure v. Hillegas, 7 S. & R. 313; Baird v. Bank of Washington, 11 id. 411; Goundie v. K W. Co., 7 Pa. St. 233; Eunyan v. Carter, 14 Pet. 122; Smith v. Shelley, 12 Wall. 858; Bogardus v. Trinity Church, 4 Sandf. Ch. 633 ; Humbert v. Trinity Cliurch, 24 Wend. 587; De Camp v. Dobbins, 29 N. J. Eq 36; s. c. 31 id. 671; Davis V. 0. C. R. Co., 181 Mass. 258 ; Yidal v. Girard's Ex'rs, 2 How. U. S. 127 ; In re N. Y. E. R. R, Co., 70 K Y. 827 ; Moore v. B. C. R. R. Co., 108 id. 98, and other cases holding the doctrine that one who has contracted with or conveyed to a corporation for a con- sideration will not be heard to raise the question as to its power to take, distinguished. Also, the question was not affected by the fact that subsequent to the death of the testatrix the limitation on the power of said university to take was removed by the legislature. Matter of MsOraw, 111 N. Y. 66, aff'g 45 Hun, 854. Notes from the opinion. (1) Power to take iy devise at common law. — "A corporation, by the common law, had power to take property by devise. Sherwood v. American Bible Society. 4 Abb. Ct. of App. Dec. 237, 231 ; 1 Kyd. on Corp. 74-78 ; Grant on Corp. 98. " (•2) Belation of English mortmain statutes to the laws of New York. — "The nature of the tenure of real property at the time of the passage of the early mortmain acts in England bears no resemblance to the tenure by which a citizen of this state holds lands. Here there is no vassal and superior, but the title is absolute in the owner, and subject only to the liability to escheat. (Const, of N. Y., art. 1, sec. 13.) The escheat takes place when the title to lands fails through defect of heirs. (Const, of N. Y., art. 1, sec. 11.) We have not in this state re-enacted the statutes of m/rrtmain or generally assumed them to be in force, and the only legal check to the acquisition of lands by corporations consists in those special restrictions contained in the acts by which they are incorporated, and which usually confine the capacity to purchase real estate to III. LIMITATION OF AMOUNT. 45 specified and necessary objects. (3 Kent's Com. 283.) Of course, the restrictions contained in any general law. if applicable, must also be referred to." (.3) Interpretation of mortmain statutes . — "Judges have given the widest possible scope to statutes in restraint of the disposal of property in mortmain, and have been astute in their arguments for the application of such statutes to cases as they arose." (Per Gibson, Ch. J., Hillyard v. Miller, 10 Penn. 336.) " The courts ought not to impute an intent to the legislature not clearly expressed, in direct hostility to the traditions and policy of the past. * * * Claiming property and seeking the aid of the courts to reach it, the corporation can rely only on the warrant and authority conferred by law, and can not claim in transgression or excess of that authority. * * * Doubtless, the restriction upon corporations is a governmental regulation, and one of policy, and to be enforced by the government ; but an individual whose interests will be aflEected by a transgression of the rule, may assert and insist upon the limitation as a restriction upon the power of the corporation to take. (Per Allen, J., in Chamberlain v. Chamberlain, 43 N Y. 434-489.) " (107-108.) (4) Nature of the title of an alien. — "It is said that an alien has the right to take property by purchase, but he can not hold it as against the state. That is so. He takes, however, a defeasible title, good as to all but the sovereign power, which must take it upon office found or by esclieat. Wright v. Saddler, 30 N. Y. 820. In such case it is not exactly an accurate description of the alien's title to simply say that he can take but can not hold. That is a contradiction in terms. If he take, he must hold, if for but a fractional part of a second of time. The expression is but a short one for the statement that he can not hold, as against the claim of the state, where properly made and enforced." (5) Executed grants to corporations taking grants in violation cf statute. — "The other cases cited in the printed argument of the counsel for the appellant, are mostly cases where a corporation has contracted with parties on a valid consideration, and where a conveyance has been made and then it is sought to raise the question as to the power of the corporation to take or convey a title, and it has been held that in such a case of an executed contract, if the corporation has violated the statute, the parties seeking to set up such violation would not be heard, and in such case none but the state would be. That one who contracts with a corporation shall not, under such circumstances, be heard to raise the question, is, in substance, the principle decided. Such are the cases in substance and principle of Cowell v. Springs Co., 100 U. S, 55; Hough v. Cook Co. Land Co., 73 111. 28; Alexander v. Tolleston Club of Chicago* 110 id, 65 ; Barnes v. Suddard, 117 id. 237 ; Cal. Tel. Co. v. Alta Tel. Co. 32 Cal. 398 ; Natoma Water Co. v. Clarkin, 14 id. 544 ; Haywond v. Davidson, 41 Ind. 212 ; Baker v. NefE, 73 id. 68 ; C. B. & Q. Co. v. Lewis, nz Iowa, 101 ; Land v. Coffman, 50 Mo. 343 ; Chambers v. City of St. Louis, 29 id. 576 ; Barrow v. Nashville, etc., Tel. Co., 9 Humph. 304 ; Baker v. Northwestern Guarranty Co., 36 Minn. 185; Missouri, etc., Co. v. Buchwell, 2 Neb. 193. I have examined all of these cases, and while the facts are, of course, not precisely similar, yet in not one of them does the fact exist of a devise of property to a corporation which it can not hold, because the limitation has been reached provided for by statute, and, of course, no doctrine that in such case the heirs can not claim the property, is advanced. In most of them the court looks upon the question as one of a forfeiture of the charter on account of a violation of some limitation therein contained, and in such case it is said, none but the sovereign can raise such question." (103-103.) (6) Effect of taking leyond amount limited hy law.—" There can be no doubt that it Is the law, in this state at least, that if there be a prohibition against the taking of 46 IIL COBPOKATIONS. property beyond a certain amount or value, a devise or bequest to a corporation of property -which will exceed the amount or value vrhich the corporation is permitted to take, will be void for the excess. This is expressly decided in the Chamberlain v. Chamberlain case, and we think it was rightly decided. Nor is there any doubt that in such a case the heirs or next of kin can raise the question. This was also decided in the same case. See, also, White v. Howard, 46 N. Y. 144. * * *" (i08.) (7) Who may question a gift or grant in iiiolation of law. — "The language of Chief Justice Beasley, in the case of De Camp v. Dobbins, 31 N. J. Eq. 690, is very appropriate here. He says : ' Nor can I assent to the other proposition that if, as the contention assumes, this bequest is violative of the law if carried into effect, that none but the state can intervene. I find no warrant for such a doctrine, either in the legal principles belonging to the subject or in the adjudications. There can be no doubt that there are cases in which, where a corporation has acquired rights of property to an extent or in a manner unwarranted by its charter, no one but the public can have the right to complain. A grantor making title to a corporation might be estopped from questioning the effect of his own conveyance. So a mere stranger could not question such a corporate title. But I have not observed any decision that asserts, where a title is created by devise which vests in a corporation for its own use a larger quantity of property than the laws authorize, that the heir at law has no right to make objection. The authorities referred to do not lend countenance to such a doctrine.' " (108-109.) For purposes of estimating property held by any institution its debts must be deducted. Wetmore v. Parker, 52 K. Y. 450. IV. ACQUIRING PROPERTY IN PLACE OF THAT CONVEYED. General Corp. L. (L. 1892, ck 687), Banks's 9th ed. K. Y. E. S., p. 980, sec. 13, provides that when a corporation has conveyed any part of its real property, the supreme court may authorize it to purchase other property, but not to exceed in amount the property conveyed. General Corp. L. (L. 1892, ch. 687), Banks's 9th ed. K Y. E. S., p. 980, sec. 14, allows domestic corporations doing business in other states to acquire land for business purposes. V. ACQUISITION OP REAL PROPERTY BY FOREIGN CORPORATIONS. General Corp. L. (L. 1892, ch. 687), Banks's 9th ed, N. Y. E. S., p. 982, sees. 17, 18, regulate the acquisition of real property in this state by foreign corporations. Lancaster v. Amsterdam Co., 140 N". Y. 576, construes these sectious to be declaratory and not limiting lY. INFANTS, IDIOTS AND PEESONS OF UNSOUND MIND. I. DEEDS. 1. STATUTES, p. 47. 2. INFANTS, p. 47. 3. IDIOTS AND PERSONS OF UNSOUND MIND, p. 48. I. "WILLS. 1. STATUTES, p. 49. 2. INFANTS, p. 49. 3. IDIOTS AND PERSONS OF UNSOUND MIND, p. 50. 1. LUNACY, p. 50. (a) Insane Delusion. 2. DfFIBMITY, p. 55, 3. DKUNKENNESS, p. 56. I. DEEDS. 1. STATUTES. The Eeal Prop. L., sec. 3 (L. 1896, ch. 547, sec. 3). " A per- son other thau a minor, an idiot or person of unsound mind, seized of or entitled to an estate or interest in real property, may transfer such estate or interest. 1 E.. S. 719, sec. 10, Banks's 9th ed. N. Y. R. S., p. 1784 (repealed by L. 1896, ch. 547, sec. 300). "Every person capable of holding lands (except idiots, persons of unsound mind and infants) seized of, or entitled to, any estate or interest in lands, may alien such estate or interest at his pleasure, with the effect and subject to the re- strictions and regulations provided by law." See 1 R. L. 70 (L. 1787, ch. 36, sec. 1) and 74 (L. 1787, ch. 37, sec. 5), both repealed by L. 1828, second meeting, ch. 21, sec. 1, par. 15. Sale of lands of infants, lunatics or habitual drunkards is regulated by Code Civ. Pro., sec. 2845 to sec. 2364, inclusive, formerly provided for by 2 R. S. 194, sec. 170, etseq., which was repealed by L. 1877, ch. 417 and L. 1880, ch. 345. 2. INFANTS. A mortgage of personal property executed by an infant is voidable at his election at any time before he arrives of age and within a reason- able time thereafter, and is avoided by any act which evinces that pur- pose. An unconditional sale and delivery of the property to a third person is such an act. Ohapin v. Shafer et al, 49 N. Y. 407. If there be a feoffment with livery, it may be avoided by entry or by writ dumfuit infra mtatem. If a deed of bargain and sale be executed it may be avoided by another deed of bargain and sale made to a third person without entry, in case the land be vacant and uncultivated ; but in all other cases there must be an actual entry, for the express purpose of disaffirming the deed. (47) 48 rv. INFANTS, IDIOTS AND PERSONS OF UNSOUND MIND. I. DEEDS — 3. IDIOTS, ETC. If, when the second deed be executed, the land be holden adversely to the infant, it s'emsthat the second deed will not amount to a revocation of the first convey- ance. Whether the deed of an infant can be affirmed by his mere silence or omission tO' disaffirm it for a period of time after he come of age, qtmre. Bool v. Mix, 17 Wend. 119. That a deed of lands by an infant is voidable, see, also, Gillett v. Stanley, 1 Hill, 121. The rule sanctioned by Lord Mansfield in Zouch v. Parsons, 3 Burr. 1794, that "all such gifts, grants or deeds made by an infant which do not take effect by delivery of his hand are void ; but all gifts, grants or deeds, made by infants, by matter in deed or in writing which do take effect by delivery of his hand, are voidable, by himself, by his heirs and by those who have his estate," was approved in Conroe v. Birdsall, 1 Johns. Cas. 137; see, also, 3 Paige, 191; 6 id. 685. As to what amounts to affirmance or disaffirmance, see Green v. Green, 69 N. Y. 553; also, Allen v. Lardner, 78 Hun, 603; Jackson v. Carpenter, 11 Johns. 530; Jack- son V. Burohin, 14 id. 134 ; Merchants' Fire Ins. Co. v. Grant, 3 Edw. Ch. 544 ; Eagle Fire Ins. Co. v. Lent, 1 id. 301; s. c, 6 Paige, 635, as grantor. Henry v. Root, 33 N. Y. 526 ; Flynn v. Powers, 54 Barb. 550 ; Lynde v. Budd, 3 Paige, 191; Kincaid v. Kincaid, 85 Hun, 141, as grantee. The deed of an infant feme covert who joins with her husband in a conveyance of his lands, is void; and does not bar her action for dower therein, though she have done nothing to affirm it. 81ierman v. Oarjield, 1 Denio, 339. See, also, Cunningham v. Knight, 1 Barb. 399. 3. IDIOTS, AND PERSONS OF UNSOUND MIND. A deed or mortgage executed by one who thereafter, by inquisition in proceedings de lunatico, is found to be a lunatic, although made within the period during which he is declared by the finding to have been a lunatic, is not absolutely void ; the proceedings are presumpt- ive, not conclusive evidence of want of capacity, and may be over- come by satisfactory evidence of sanity. Hughes v. Jones, 116 N. Y. 67. From opinion. — "All contracts of a lunatic, habitual drunkard, or person of un- sound mind, made after an inquisition and confirmation thereof, are absolutely void, until by permission of the court he is allowed to assume control of his property. L'Amoureaux v. Crosby, 3 Paige, 422; Wadsworth v. Sharpstein, 8 N. Y. 388; 3 R. S. 1094, sec. 10. In such cases the lunacy record, as long as it remains in force, is conclusive evidence of incapacity. Id. Contracts, however, made by this class of persons before office found, but within the period overreached by the finding of the jury, are not utterly void, although they are presumed to be so until capacity to contract is shown by satisfactory evidence. Id.; Van Deusen v. Sweet, 51 N. Y. 378 ; Banker v. Banker, 63 id. 409. Under such circumstances the proceedings in lunacy are presumptive but not conclusive evi- dence of a want of capacity. The presumption, whether conclusive or only prima facie, extends to all the world and includes all persons, whether they have notice of the in- quisition or not. Hart v. Deamer, 6 Wend. 497 ; Osterhout v. Shoemaker, 3 Hill, 513; 1 Greenl. Ev. sec. 556. That the deed of a lunatic is, like that of an infant, not void but voidable, at his- election, see Ingraham v. Baldwin, 9 N. Y. 45; Jackson v. Gumaer, 3 Cow. 553 (568);, Bool V. Mix, 17 Wend. 119 (134), and cases; P. N. B. 303, rV. INFANTS, IDIOTS AND PERSONS OF UNSOUND MIND. 49 XL WILLS — 2. INFANTS. An habitual drunkard is not incompetent to execute a deed, he is simply incompetent upon proof that at the time his understanding was clouded, or his reason dethroned by actual, intoxication, or upon proof of general unsoundness of mind. Van Wyck v. Brasher, 81 N. Y, 260. Citing Peck v. Carey, 27 N. T. 9; Gardner v. Gardner, 33 Wend. 536. Assuming that a deed executed by an insane person is not yoidable merely, but absolutely void Van Deusen v. Sweet, 51 N. Y. 378, to establish its invalidity, it must appear that the grantor was, at the tim© he executed it, wholly, absolutely and completely unable to understand or comprehend the nature of the transaction. Aldrich v. Bailey, 132 K Y. 85. II. WILLS. 1. STATUTES. 2 E. S. 57, sec. 1, Banks's 9th ed. N. Y. E. S., p. 1875. "All per-sons, except idiots, persons of unsound mind and infants, may devise their real estate, by a last will and testament, duly executed according to the provisions of this title." (Thus amended by L. 1867, ch. 782.) The original enactment brought married women within the exception. 1 R. L. 364, ch. 23, sec. 5 (repealed L. 1828, second meeting, ch. 31, sec. 1, par. 95) made the following exception : " That no last will and testament, aforesaid, made by a married woman or by any infant, idiot, or person of insane memory shall be valid." 2 R. S. 60, sec. 21, Banks's 9th ed. N. Y. E. S., p. 1876. " Every male person of the age of eighteen years or upwards, and every female at the age of sixteen years or upwards, of sound mind and memory, and no others, may give and bequeath his or her personal estate, by will in writing." (Thus amended by L. 1867, ch. 782.) As originally enacted married women were excepted. 2. INFANTS. Ill an action brought to obtain judicial construction of a will, it was adjudged that the title to a greater portion of the real estate of which the testatrix died seized, vested in her heirs upon her death, subject to the execution of a power of sale by the executors, and said executors were directed to sell and convey said real estate in pursuance of a con- tract made by them. This was accordingly done, and the proceeds paid over to the county treasurer. Subsequently one of the heirs, an infant over eighteen years of age, died, leaving a will, whereby she devised 7 50 IV. INFANTS, IDIOTS AND PERSONS OF UNSOUND MIND. II. WILLS — 3. IDIOTS, ETC. and bequeathed all of her property to her husband, who petitioned to have the share of his wife in the fund paid over to him. Construction : The proceeds of the sale were to be regarded as personal property, and the portion of the infant heir could be disposed of by and passed under her will. Where real estate owned by tenants in common, of whom an infant is one, is sold under and in pursuance of a judgment in a partition suit, instituted by others of the tenants in common, the portion of the pro- ceeds belonging to the infant remains impressed with the character of real estate, and as such does not pass under the infant's will. Horton V. McGoy, 47 N. Y. 21. 3. IDIOTS AND PERSONS OF UNSOUND MIND. 1. LCNACT. Assuming it to be possible that a testator may manifest sufficient ca- pacity to revoke an existing will, and yet be incapable of demonstrating (although he might possess) sufficient capacity to support the complex provisions of a new will, this notion can not be so applied to a codicil as to render it effective as the revocation o£ a will, while void as an affirmative testamentary disposition. The person propounding an alleged testamentary paper must prove, not only the execution and publication of the instrument, but also the mental capacity of the testator ;' so that if, upon consideration of the evidence on both sides, the court is not satisfied that the supposed testator was of sound and disposing mind and memory, probate must be denied ; hut, At common law, and under our statutes, the legal presumption is, that every man is compos mentis ; and the burden of proof that he is nan compos mentis rests on the party who alleges that an unnatural condi- tion of mind existed in the testator. He who sets up the fact that the testator was non compos mentis must prove it." In law, the only standard as to mental capacity in all who are not idiots or lunatics is found in the fact whether the testator was compos mentis or noncompos mentis, as those terms are used in their fixed legal meaning. Such being the rule, the question in every case is, had the testator, as compos mentis, capacity to make a will ; not had he capacity to make the will produced. If compos mentis, he can make any will, however com- plicated; if non compos mentis, he can make no will — not the simplest' IV. INFANTS, IDIOTS AND PEESONS OF UNSOUND MIND. ,51 II. WILLS — 3. IDIOTS, ETC. The opinions on that subject of mediciil men, as well actual, ob- servers as experts, are mere evidence, and are to be produced in court,' .and under oath, as other evidence is. The case of Stewart v. Lispenard, 26 Wend. 255, disapproved, and, it seems, overruled ; but whether any different rule of law is affirmed, qucere.* Delafield v. Parish, 25 N. Y. 9; S. c, 42 Barb. 274; 1 Eedf. 1. 'See also Ramsdell v. Viele, 6 Dem. 344; s. c, 20 St. Rep. 446, alfd, 117 N", Y. 636 (the practice in such cases also stated in this case). Also Van Pelt v. Van Pelt, 30 Barb. 134; McSorley v. McSorley, 3 Bradf. 188; Morrison v. Smith, 3 id. 309; Loder v. Whelpley, 1 Dem. 368; 111 N. Y. 339; Ester- brook V. Gardner, 3 Dem. 543. «See, also, Matter of Flansburgh, 83 Hun, 49; Matter of Rapplee, 66 id, 558, aff'd 141 N. Y. 558; Matter of Groot, 73 id. 548. But mental derangement once proved, devisee must show a lucid interval. Christy v. Clarke, 45 Barb. 529; Brown v. Torrey, 24 id. 583; Van Dusen v. Van Dusen, 5 Johns. 144; Taylor's Will, Edm. 8. C. 375; Clark v. F.sher, 1 Paige, 171; Gombault v. Public Administrator, 4 Bradf. 226. ^Eau V. Snyder, 46 Barb. 330; Forman's Will, 54 id. 374; s. c, 1 Tuck. 305; Brush V. Holland, 3 Bradf. 461. ■• The doctrine of Stewart v. Lispenard was followed in Blanchard v. Nestle, ^ Denio, 37, and Newhouse v. Goodwin, but was disapproved and not applied in Thompson v. Thompson, 31 Barb. 116, and Stanton v. Weatlierwax, 16 id. 359. Note. — What insufficient to establish testamentary incapacity : Mere fact that all property was given to those not related to testatrix. Deas v. Wandell, 1 Hun, 130 ; s. c, 3 S. C. 138, aif'd in 59 N. Y. 636. A finding, on writ de lunaiico inquirendo, that testator was of unsound mind for the. previous twenty-four months, is not conclusive that there was no interval of capacity during that time. Searles v. Harvey, 6 Hun, 658. An hereditary tendency to insanity. Bristed v. Weeks, 5 Redf . 539. Extreme old age. Clarke v. Davis, 1 Redf. 349; Maverick v. Reynolds, 3 Bradf. 360 ; Moore v. Moore, id. 361 ; Butler v. Benson, 1 Barb. 536 ; Creely v. Ostrander, 3 Bradf. 207 ; Cornwall v. Ricker, 3 Dem. 354 ; Van Alst v. Hunter, 5 Johns. Ch. 158. The facts held not to warrant a finding of incapacity. Potter v. McAlpine, g Dem. 108; Matter of Mahoney, 34 St. Rep. 183; s. c, 38 id. 344; Matter of Stewart, 39 id. 801. ' Inequality of distribution among children. LaBaii v. Vanderbilt, 3 Redf. 384. That the testamentary provision is less than what would have been received on intestacy. Matter of Tracy, 11 St. Rep. 103. Defect of memory, unless it be total or appertain to things essential. Bleecker v. Lynch, 1 Bradf. 458 ; Reynolds v. Root, 63 Barb. 350. Defect of senses. Weir v. Fitzgerald, 2 Bradf. 42. A person deaf and dumb from nativity is not therefore an idiot nor raora compos •mentis, though such perhaps may be the legal presumption until his mental capacity is proved or an inquiry and examination for that purpose. Brower v. Fisher, 4 Johns. Ch. 441. What sufficient to establish testamentary incapacity : As to amount of mental unsoundness arising from old age. Newhouse v. Good- win, 17 Barb. 236. 62 IV. INFANTS, IDIOTS AND PERSONS OF UNSOUND MIND. II. WILLS — 3. IDIOTS, ETC. From a mortal illness. Alston v. Jones, 17 Barb. 876; Sheldon v. Dow, 1 Deni. 503. Wlien the will indicates that a son of the testator is an infant when in fact he is not, it IS important as tending to establish incapacity. Cooper v. Benedict, & Dem. 136. Where, at the time of execution, the decedent was in a state of stupor, though perhaps capable of being roused so as to perform a sensible action, the proof to establish a rational act, should be of the clearest character ; and that failing, probate should be denied. McGuire v. Kerr, 2 Bradf. 344. The testamentary capacity is mainly a question of fact, to he deter- mined by the testimony of witnesses examined before the surrogate when the will is propounded for record, etc. Gardiner v. Oardiner, 34 N. Y. 155. The will is valid where, though the testatrix, by an inquisition io the supreme court, was declared a lunatic from the last of October, 1856, when the will was executed in the July previous, she was of dis- posing mind and memory within the rule suggested in Delafield v. Parish, 25 K Y. 9. Van Guy sling v. VanKuren, 35 K Y. 70. (a) Insane delusion. It seems that, on questions of testamentary capacity, courts should be careful not to confound perverse opinions and unreasonable preju- dices with mental alienation. The true test of insanity affecting testamentary capacity, etc., aside from cases of dementia, or loss of mind and intellect, is mental delu- sion. A person, persistently believing supposed facts, which haVe no real existence, against all evidence and probability, and conducting himself upon the assumption of their existence, is, so far as such facts are con- cerned, under an insane delusion. If a testator at the time of making his will is laboring under any delusion in respect to those who would naturally have, been the objects of his testamentary bounty, and the court can see that -the dispository provisions were or might have been caused or affected by such delu- sion, such instrument is not to be deemed to be his will. The American Seaman s Friend Society v. Hopper, 33 K Y. 619; S. 'c., 43 Barb. 625. See, also, Lathrop v. Borden, 5 Hun, 560 : Lathrop v. American Board of Foreign Missions, 67 Barb. 590 ; Merrill v. Rolston, 5 Redf . 330 ; Stanton v. Weatherwax, 16 Barb. 359. Insane delusion held established in Miller v. White, 5 Redf, 330 ; Morse v. Scott, 4 Dem. 507 ; Matter of Dorman, 5 id. 113. Insane delusion held not established in Phillips v. Choter, 1 Dem. 583 ; Hagen v. Yates, id. 584; Matter of Vedder, 14 St. Eep. 470; s. c, 6 Dem. 93; Bull v. Wheeler, id. 133 ; Matter of Gross, 14 St. Rep. 429, aff'g 7 id. 739. IV. INFANTS, IDIOTS AND PERSONS OF UNSOUND MIND. 53 II. WILLS — 3. IDIOTS, ETC. It is not enough to avoid a will, that the testator, otherwise compe- tent, had mistaken notions that one of his daughters was illegitimate, provided it did not amount to an insane delusioa bat was simply the sfiEect of inadequate evidence on a jealous and suspicious mind. Glapp V. Fullerton, 34 N. Y. 190. Note. — "It was also insisted that, aside from the issue of imbecility, the testator "was disqualified by lunacy. This claim rested on the assumption, that during the las year of his life he was laboring under an insane delusion as to the legitimacy of his ■elder daughter. To sustain the allegation, it is not sufficient to show that his sus picion in this respect was not well founded. It is quite apparent from the evidenco that his distrust of the fidelity of his wife was really groundless ; but it does not fol- low that his doubts evince a condition of lunacy. The right of a testator to dispose •of his estate, depends neither on the justice of his prejudices nor the soundness of his reasoning. He may do what he will with his own ; and if there be no defect of testa- mentary capacity, and no undue influence or fraud, the law gives effect to the will, though its provisions are unreasonable and unjust." A person having capacity sufficient to acquire a large fortune by per sonal industry and intelligence, who successfully conducts a large busi- ness, whose business correspondence shows a clear comprehension of the subjects upon which he writes, and who is pronounced by his intimate iriends of sound mind, and of more than ordinary intelligence and firm- ness, will not be considered as incompetent to make a will simply be- •cause he exhibits eccentricities of character in regard to himself, is subject to fits of melancholy in regard to his health, even amounting to hypochondria. Brick v. Brick, 66 N. Y. 144. Probate of the will of E. was contested on the ground of incompe- tency, by reason of delusions as to the conduct and affection of her hus- band, as to the want of affection toward her of some of her children, among others, that they desired to confine her in an asylum ; whereby she was induced to make discriminations against them. It appeare d that the testatrix was a woman of strong will ; she had a severe sickness prior to the making of her will ; she continued, however, thereafter to manage and control her business as she had done before, collecting rents and making improvements ; she conversed intelligently with her friends and her attorney giving instructions to the latter as to the will and following in some respects his advice. No act of insanity or of improvidence in the conduct of her affairs was proved. She was passionately jealous of her husband, and they had frequent quarrels ; at one time a divorce suit was pending between them. Her son had committed an assault upon her for which he and her husband were indicted and the former convicted. The children who were discriminated against took sides with the husband ; those favored, espoused the cause of the mother. Proceedings were at one time instituted for the appointment of a com- 54 IV. INFANTS, IDIOTS AND PERSONS OF UNSOUND MIND. II. WILLS — 3. IDIOTS, ETC. mittee to take charge of her estate, and she was advised by her attorney that if the proceedings were successful the right existed to place her in an asylum. These proceedings were arrested by the husband. Held, that the evidence failed to show the existence of any insane delusions, such as rendered the testatrix incompetent to make a will. Coit v. Patchen, 77 N. Y. 533. To set aside a gift of property because of unsoundness of mind of the donor, it is not essential to show that he was an idiot or an imbecile at the time ; it is sufficient to show that he was laboring under a delusion out of which he could not be reasoned, which led him to make the gift, and which so took possession of his mind that he could not act upon the subject sensibly. If such delusion exist upon one subject the person, as to that, is of unsound mind, although, in regard to other subjects, he may reason and act intelligibly. It appeared that a person, under the influence of a belief that his wife and children had conspired together to injure him, which had no foun- dation in fact and was merely an insane delusion, for the purpose of preventing them from inheriting, gave a large portion of his estate to defendant under an arrangement that it was to pay him interest thereon during his life, this arrangement having been advised be an agent of the defendant, who well knew his mental condition. Construction : The gift was invalid and the defendant was properly required to restore the property ; also, it was immaterial to inquire whether resto- ration could be made without impairment of defendant's estate. As to whether it was essential to show that defendant was chargeable- with knowledge of the donor's condition of mind, qimre. Biggs v. The American Tract Society, 95 K Y. 503. It seems that where one persistently believes supposed facts, which have no real existence, except in his perverted imagination, against all evidence and probability, and conducts himself, however logically, upon the assumption of their existence, the delusion is insanitv. Where, however, there are facts, insufficient although they may be in reality, from which a prejudiced, narrow or bigoted mind might derive a particular idea or belief, it cannot be said that the mind is diseased in that respect. The fact that the belief is illogical or preposterous is not evidence of insanity. W. died, leaving a widow, a daughter by her, and a son by a former marriage, him surviving, and leaving a will, probate of which was con- IV. INFANTS, IDIOTS AND PERSONS OF UNSOUND MIND. 55 II. WILLS — 3. IDIOTS, ETC. tested by his son on the ground of mental incapacity. W. was at the time of his death eighty-eight years old, having retained, to an extraor- dinary degree, vigor of mind and body, and having continued to man- age his own affairs, and in full possession of his reasoning and reflective faculties. He was a man of strong will and determined character, posi- tive and independent in his opinions, and unyielding in them when op- posed. From his youth W. had entertained a bitter dislike of the order of Free Masons. In August, 1884, he had a dispute with neighbors in regard to the location of boundary lines ; a survey made, which was ■unsatisfactory to him, was repeated, at the suggestion of his son. The line ran nearly identically with that of the previous surveys. W. was not satisfied. His son combatted his views. The neighbors and sur- veyors were Masons, and during the dispute he discovered his son was, also. - He became angered and charged that his son had conspired with the others to defraud him of his rights. This became a settled convic- tion upon his mind, and the breach between them growing out of this conviction was never closed. The will, made in July, 1885, left a small legacy to the son, and the balance of the testator's estate was given to the widow and daughter. It appeared that W. had made several prior wills, one before the breach, making a similar disposition of his property. Construction : The evidence failed to show the testator was laboring under, and the will was the offspring of, an insane delusion, and a decree admitting it to probate was proper. Matter of Will of White, 121 K. Y. 406. 2. INITRMITT. The circumstance that the testator died within a few hours after the making of his will, does not alone warrant an inference of incapacity. Jackson V. Jackson, 39 K Y. 153, digested p. 1193. The fact that an aged person is forgetful and, at times labors under slight delusions, does not per se establish want of testamentary capacity. Children's Aid Society v. Loveridge, 70 N". Y. 387, digested p. 1197. There is no presumption against a will because made by a person of advanced age; nor can incapacity to make a will be inferred from an enfeebled condition of mind or body. If the testator has sufficient in- telligence to comprehend the condition of his property, his relation to those who are or may be the objects of his bounty, and the scope and meaning of the provisions of his will, and if it is his free act, it will be sustained. Horn v. Pullman, 72 N. Y. 269. See also Clark v. Fisher, 1 Paige, 171. The fact that the testatrix has the feebleness of old age, both mentally and physi- 56 IV INFANTS, IDIOTS AND PERSONS OJ' UNSOUND MIND. II. "WILLS — 3. IDIOTS, ETC. cally, does not necessarily render her incapable of making a will, if she is rationa. and has sufficient capacity to comprehend the condition of her property, her relations to the objects of her bounty and the scope and bearing of the provisions of her will. Matter of Pike, 83 Hun, 327. See also Matter of Lewis, 81 Hun, 313; Matter of Townsend, 75 id. 593; Matter of Skaats, 74 id. 463; Matter of Folts, 71 id. 492. 3. DRUNKENNESS. A will is valid though the testator was a confirmed drunkard, and the execution took place after a long debauch and the testator had drunk several times during the day. Pecic v. Gary^ 27 N. Y. 9. See, also, Matter of Tracy, 11 St. Rep. 103, aff'g s. c, 3 id. 239. From opinion: "In order to avoid a will made by an intemperate person, it must be proved that he was so excited by liquor, or so conducted himself, during the par- ticular act, as to be, at the moment, legally disqualified from giving effect to it. Shelf ord on Lunacy, 376. The same learned writer says that incapacity arising from intoxication differs from ordinary lunacy in this, that the effects of drunkenness only subsist while the cause, the excitement, visibly lasts. There is, he adds, scarcely such a thing as latent inebriety; so that a case of inca- pacity from mere drunkenness, and yet the man be capable to all outward appear- ances, can hardly arise; "consequently, in cases of this description, all which is required to be shown is the absence of such excitement at the time of the act done as would vitiate it; for, under slight degree of excitement from liquor, the memory and understanding may be as correct as in the total absence of any exciting cause." Id. 304. A similar rule was laid down by Sir John Nicholl sitting in Prerogative Court in Ayrey v. Hill, 3 Ad dams, 206. In such a case it is competent, as It is the universal practice in the probate courts, to examine the dispositive parts of a will, to see whether the dispositions are extravagant and unreasonable, on the one hand, or whether on the other, they are such as might probably be expected from one in the situation of the alleged testator. The question is not, however, whether the gifts are such as, upon the whole, we would have advised under the same circumstances, but whether there is such a violent departure from what we would consider natural, that they can not fairly be referred to any cause other than a disordered intellect." See, also, Lewis v. Jones, 50 Barb. 645; Vanwyck v. Brasher, 81 N. Y. 360; Gardner v. Gardner, 23 Wend. 536; Matter of Ely, 16 Misc. 338; Matter of Woolsey, 17 id. 547. V. MARRIED WOMEN. I. CAPACITY TO TAKE ESTATES. 1. Br GRANT, p. 57. 1. GBNERALLT, p. 57. 2. BETWEEN HUSBAND AND WIFE, p. 63. 3. BY TKUSTBB TO MARRIED WOMAN, p. 63. 4. MARRIAGE SETTLEMENT, p. 68. 5. ANTENUPTIAL AGREEMENT, p. 64. 2. BY WILL, p. 67. 3. BY DESCENT, p. 68. II. CAPACITY TO CREATE ESTATES 1. BY GRANT, p. 68. 2. BY POWERS, p. 70. 3. BY RELEASE OF DOWER, p. 71. 4. BY WILL, p. 72. I. CAPACITY TO TAKE ESTATES 1. BY GRANT. 1. GENERALLY. Before L. 184:8, a married woman held what rights she had under common law rules. L. 1848, ch. 200 (passed April 7th). Sec. 1. " The real and personal property of any female who may hereafter marry ^ and which she shall own at the time of marriage, and the rents, issues and profits thereof, shall not be subject to the disposal of her husband, nor be liable for his debts, and shall continue her sole and separate property, as if she were a single female." Sec. 2. " Tiie real and personal property, and the rents, issues and profits thereof, of any female now married shall not be subject to the disposal of her husband, but shall be her sole and separate property as if she were a single female, except so far as the same may be liable for the debts of her husband heretofore contracted." * * The husband has a vested interest in a legacy, which was bequeathed to his wife prior to the act of 1848 for the more effectual protection of the property of married women, although the legacy was not reduced to possession when that act took effect. The legislature had not power to deprive the husband of his rights to such a legacy, and make it the sole and separate property of the wife ; and so far as the act purports to do so, it violates the provision of the Constitution of the state, declaring that no person shall be deprived of "property without due process of law.'' The act of 1848, for the protection of the property of married women, did not divest a hus- pand's interest in a legacy previously bequeathed to his wife, though not then reduced to bossession. Weste/ni&l v. Qrtgg, 12 N. Y. 202. (57) 58 V. MARRIED WOMEN. 1. BY GRANT, 1. GENERALLY. Sec. 3. (Was amended by sec. 1, L. 1849, ch, 375, as given below.) L. 1849, ch. 375. Sec. 1. " The third section of the act of 1848 amended to read, 'Any married female may take by inheritance or by gift, grant, devise or bequest, from any person other than her husband and hold to her sole and separate use, and convey and devise real and personal property, and any interest or estate therein, and the rents, issues and profits thereof in the same manner and with like effect as if she were unmarried, and the same shall not be subject to the disposal of her husband nor be liable for his debts.' '' L. 1848, sec. 3, same as far as capacity to take is concerned. L. 1860, ch. 90, sec. 1 (passed March 20th). '■ The property, both real and personal, which any married woman now owns, as her sole and separate property ; that which comes to her by descent, devise, be- quest, gift or grant ; that which she acquires by her trade, business,, labor or services, carried on or performed on her sole or separate ac- count ; that which a woman married in this state owns, at the time of her marriage, and the rents, issues and proceeds of all such property, shall, notwithstanding her marriage, be and remain her sole and sepa^ rate property, and may be used, collected and invested by her in her own name, and shall not be subject to the interference or control of her husband, or liable for his debts, except such debts as may have been contracted for the support of herself or her children, by her as his agent." Sections 2-11 of this act do not relate to this title. What is a married woman's separate estate.— Ij. 1858, cli. 187, sec. 1, enacts substantially that a wife may cause tlie life or health of her husband to be insured for her sole use, and if she survive the period of the insurance the sum or net amount of the insurance becoming due and payable, by the terms of the insurance, shall be payable to her to and for her own use, free from the claims of the representatives of the husband, or of any of his creditors, or any party or parties claiming by, through, or under him. (Thus far, substantially the same as L. 1840, ch. 80, sec. 1.) But, when the premium paid in any year out of the property or funds See, also, Norris v. Beyea, 13 N. Y. 278 ; Ryder v. Hulse, U id. 372 ; Briggs v. Mitchell, 60' Barb. 288. See, also. Matter of the Reciprocity Bank, 23 id. 12. The act of 1818 was prospective in its operation ; it did not affect existing interests. Smith. V. Colvin, 17 Barb. 157. See, also, Shumway v. Cooper, 16 Barb. 556 ; Perkins v. CottreU, 15 id. 4i6 ; "White v. White, 5 id. 174 ; 4 How. Pr. 103 ; Holmes v. Holmes, 4 Barb. 295. The statutes of 1848 and 1849 for the protection of married women, gave no power to tha Wife to dispose by will of property acquired by her before the passage of the acts, or of the interest accruing after the acts upon money previously given her, or of the proceeds of her own labor which her husband permitted her to receive, manage, and invest in her own name and as if it were her own property. The property which a married woman may take and hold as her separate estate, under the act of 1848 and 1849, must be acquired by inheritance, gift, grant, devise, or bequest from some person other than her husband; those acts do not embrace her separate earnings. Rycler v. Hulse, 24 N. Y. 372; s. c, 33 Barb. 264. As to latter point see, also, Switzer v. Valentine, 4 Duer, 96 ; 10 How. Pr. 109 : Freeman v, Orser, 5 Duer, 476 ; Rouillier v. Werncki, 3 E. D. Smith, 310 ; Boyle's Estate, 1 Tuck. 4. I. CAPACITY TO TAKE ESTATES. 59 1. BY CRANT. 1. GENEKALLT. of the husband shall exceed five hundred dollars, such exemption from such claims shall not apply to so much of said premium so paid as shall he in excess of five hundred dollars, but such excess, with the interest thereon, shall inure to the benefit of his creditors. Baron v. Brummer, 100 N. Y. 372; Franli v. Mutual Life Ins. Co., 102 id. 286 ; Anderson v. Goldsmidt, 103 id. 617, afE'g s. c, 38 Hun, 360. Decisions under L. 18-10, ch. 80. Olmsted v. Keyes. 85 N. Y. 593 ; Eadie v. Slimmon, 26 id. 9 ; Brummer v. Cohn, 86 id. 11 ; Living v. Domett, 26 Hun, 150 ; Leonard v. Clinton, id. 288 ; Baron V. Brummer, 100 N. Y. 372 ; Whitehead v. N. Y. Life Ins. Co., 103 id. 143 ; Smillie v. Quinn, 90- id. 492; Baker v. Mutual Life Ins. Co., 43 id. 283; Tremeyer v. Turnquest, 85 id. 516, decided under L. 1860, ch. 90, sec. 1, and L. 1862, ch. 172. Under the act of 1848 the increase of a wife's animals owned by her dum sola is her separate property. Van Sickle v. Van Sickle, 8 How. Pr. 265. Code Civ. Pro. sec. 450. "A married woman may sue and be sued, etc. * * * and all Bums that may be recovered in such actions or special proceedings shall be the separate prop- erty of tile wife * * « ." L. 1862, oh. 172, sec. 3. • * * "and the money received iipon the sMUment of any such action or recovered upon a judgment, shall be her sole and separate property." * « * L. 1860, ch. 90, aec. 7, the same. Code Civ. Pro. sec. 1399. "A lot of land, with one or more buildings thereon, owned by a. married woman, * * * and occupied by her as a residence, may be designated as her ex- empt homestead, as prescribed in last section, and the property so designated is exempt from sale by virtue of an execution, under the same circumstances, and subject to the same excep- tions, as the homestead of a householder, having a family." Where household furniture belonging to a married woman is, with her consent, taken to the house of her husband, mingled with his furniture and used therewith for the household purposes, it does not thereby become the property of her husband, but the title remains in. her. Mtch v. Bathbun, 61 N. Y. 579. Cases decided under the statutes of 1848-1849. The statutes (cli. 200 of 1848, and cli. 375 of 1849) " for the more effectual protection of the rights of married women " do not remove their legal incapacity to contract debts. As incident to the power of disposition given by the statutes of 1848 and 1849, a married woman may create an express charge on lier separate estate, held under them, In the same manner as if she were a, feme sole. Yale v. Dederer, 18 N. Y. 265. The provision of the acts of 1848 and 1849 allowing a married woman to take by "grant" from any person otlier than her husband, empowers lier, with her husband's assent, to take a mortgage payable to herself for a debt due to them both and no on© but the husband's creditors can impeach the mortgage on that account. Wolfe v Scraggs, 4 Abb. Ct. App. Dec. 634. A married woman is empowered by the act of 1848 to execute a valid chattel mort- gage of her separate property. Clieseborougli v. House, 6 Duer, 125. See, also, Tolman v. Hawxhurst 4 Duer, 221. In equity a, feme covert is regarded as a. feme sole with reference to her separate estate, unless specially restrained by the instrument creating the separate estate. Oibson v. Walker, 20 N. Y. 476. See, also, Albany Fire Ins. Co. v. Bay, 4 N, Y. 9 ; M. E. Church v. Jaques, 17 Johns. 648; 3 Johns. Ch. 77; Knowles v. McCauly, 10 Paige, 342. The statutes of 1848 and 1849, for the protection of married women, gave no power to the wife to dispose by will of property acquired by her before the passage of the acts, or of the interest accruing after the acts upon money previously given to her, or of the proceeds of her own labor which her husband permitted her to receive, manage and invest in her own name and as if It were her own property. Byder v. Hulse, 24 N. Y. 372. Under the statutes of 1848 and 1849, an assignment, made by a, feme covert, with all " claims and demands " is valid, and passes the title of the owner as well as rights ot action pertaining thereto. Sherman v. Elder, 24 N. Y. 381. See, also, Edgerton v. Thomas, 9 N. Y. 40. 60 V. MARRIED WOMEK. 1. BY GRANT. 1. &ENERALLY. Since the act of 1849, for the protection of the rights of married women, it seems that no aclinowledgment is requisite to the conveyance of the separate estate of one. Wells V. Peck, 26 N. T. 42. Note. — This construtition is regarded unsound by Selden, J., who, were the ques- tion new^ would hold that the statute of 1849 did not render a conveyance effectual without an acknowledgment "and that the provisions of the Revised Statutes declar- ing that no estate of a married woman residing in this state should pass by any con- veyance not acknowledged, still remained in force, on the ground that there is no ex- press repeal, and a repeal by implication is never beld to take place where both the acts may stand together. The contrary, however, has been held, and it is too late now to question the correctness of that conclusion involving, as it doubtless would, the validity of many titles. Blood v. Humphrey, 17 Barb. 666; Andrews v. Shaffer, 13 How. 441; Tale v. Dederer, 18 N. Y. 371." Under the statutes of 1848 and 1849, a married woman can acquire title to real and personal property purchased upon credit. If the vendor take the risk of payment, the transfer is valid to vest the property in her and the husband takes no interest. Knapp V. Smith, 37 N. Y. 377. From opinion. — "At common law, a married woman has capacity to take real and personal estate, by grant, gift or other conveyance from any person except her hus- band. But as to real property, the husband, where no trust was created, had an estate during the coverture, and during his life, if there was issue of the marriage ; and the wife's personal estate, in the absence of a trust, vested in him absolutely, when re- duced to his possession. The object of the statutes of 1848 and 1849 was to divest title of the husband ^m?'« inariti during covertifre, and to enable the wife to take abso- lute tille, as though she were unmarried. (L. 1849, p. 537, ch. 375, sec. 1.) There is some difficulty in a married woman purchasing property, whether real or personal, on credit, arising out of the principle that she can not make a contract for payment which will be binding upon lier personally according to tbe general rule of law ; but if the vendor will run the risk of being able to obtain payment of the consideration of the same, the transfer will be valid, and no estate will pass to the husband, whether the wife has antecedently any separate estate or not." Section 3 of L. 1848, and § 1 of L. 1849, in respect to married women, vest in the wife the legal title to the rents, issues and profits of her real estate, as against the husband and his creditors, "with the like effect as if she were unmarried;" and the husband can not now, as formerly, acquire title to such property in virtue of liis marital rights. Oage v. Daucliy tSc Beekman, 34 N. Y. 293. Tlie object of the statutes of 1848 and 1849 was to divest the title of the husband, jure mariti, during coverture, and enable the wife to take the absolute title as though unmarried. Hence a /«TOe cOT«rt may take and hold independently of her husband a leasehold estate. But prior to the statute of 1860 the common law disability of con- tract remained and the lessor would assume the risk of being able to obtain payment of the rent. Draper v. Stouvenel, 35 N. Y. 507. On same point, see also Vandevoort v. Gould, 36 N. Y. 639; Darby v. Callaghan, 16 id. 71 ; Prevot v. Lawrence, 51 id. 319. Since the passage of the acts of 1848-9 in relation to the property of married women there is no presumption that the husband is in occupation of his wife's lands, and in an action of ejectment brought against the husband to recover possession of such lands, whether she was occupying them at the time of the commencement of the ac- tion, or had given to her husband the possession, is to be determined as a question of fact. Martin v. Eector, 101 N. Y. 77. Casei decided under tfie law of 1860. Under existing statutes, a married woman may manage her separate property through the agency of her husband, without subjecting it to the claim of his creditors. I. CAPACITY TO TAKE ESTATES. (5% 1. BY GRANT. 1. GBNBBALLT. She is entitled to the profits of a mercantile business, conducted by the husband in her name, when the capital is furnished by her, and he has no interest but that of a mere agent. The application of an indefinite portion of the income to the support of the husband does not impair the title of the wife in her property. No interest in her separate estate is acquired, either by the husband or his creditors, through his voluntary services as her managing agent. Buckley v. Wells, 33 N. Y. 518. The common law right of a husband through administration to the title of his de- ceased wife's personal property is not affected by the statutes of 1848, ch. 200, L. 1849, ch. 375, Robins v. McClure, 100 N. Y. 338, nor by L. 1860 ch. 90; L. 1863, ch, 172, or L. 1867, ch. 782. Barnes v. Underwood. 47 N. Y. 351. Eansom v. Nichols, 23 N. Y. 110 to same affect. A married woman is not liable upon a promissory note obtained under duress not given in course of her separate business or for the benefit of her separate estate. Loomis V. Ruck, 56 N. Y. 463. If a bill of exchange be made payable to a married woman, her indorsement will transfer title. Lee v. Satterlee, 17 Abb. Pr. 6; s. c. 1. Rob. 1. All legal incidents attach to a promissory note indorsed by a married woman in the course of her separate estate the same as if she were a feme sole. Tldrd Nat'l Bank v. Blahe, 73 N. Y. 260. Also see Woolsey v. Brown, 74 N. Y. 82; Knowles v. Toone, 96 id. 534; Tread- well V. Archer, 76 id. 196, substantially to the same effect; see also First Nat'l Bank of Saugerties v. Hurlbut, 22 Hun, 310- as to question of pleading, see Schwartz V. Oppold, 74 N. Y. 307. A married woman is liable to an accommodation indorser on her note, when pro cured for purpose of securing funds for the benefit of her separate estate. Scott v. Otis, 25 Hun, 33. A married woman may, under the statutes as they now exist (L. 1848, ch. 300 ; L. 1849, ch. 375 ; L. 1860, ch. 90 ; L. 1863, ch. 172), and as incident to the right to acquire property and hold it to her sole and separate use, purchase property upon credit and bind herself by an executory contract to pay the consideration money ; and any obligation entered into by her, given to secure the purchase price of property acquired and held for her separate use, may be enforced against her the same as if she was 9, feme sole; and this, although she had no antecedent estate to be benefited, and although the purchase was not made for the purposes of a trade or business. Oashman v. Henry, 75 N. Y. 103. L. 1848-9, 1860-3, changed wife's equitable right to hold separate property into a legal estate. Wood v. Wood, 83 N. Y. 575. Under the statute (L. 1848, ch. 300 ; L. 1860, ch. 90 ; L. 1863, ch. 173) general rules of ownership of property now apply to wife, unaffected by the former disabilities of the marital relation. The possession of articles adapted plainly to the wife's separate and personal uae, and not that of the husband or family, and so actually used by her, in the absence of • other facts contradicting the inferi-nce, must be held to denote her ownership of the property, either as purchased out of her own means, or given to her by her husband or others. WMton et. al. v, Snyder, 88 N. Y. 399. As to the legal title of , wife to her paraphernalia, see Rawson v. Penn. R. Co., 48 N. Y. 313 ; Curtis v. D. L. & W. R. Co., 74 N. Y. 116. 62 V. MAERIED WOMEN. 1. BY GRANT. 3. BETWEEN HUSBAND AND WIFE. Partition and dimsion of lands owned by husband and wife. L. 1880, ch. 472, sec. 1. " Whenever husband and wife shall hold any lands or tenements as tenants in common, joint tenants, or as tenants by entireties, they may make partition or division o£ the same between themselves, and such partition or division, duly executed under their hands and seals, shall be valid and effectual ; and when so expressed in the instrument of partition or division, such instrument shall bar the right of dower of the wife in and to the lands and tenements par- titioned or divided to the husband." Conveyances between husband and wife. L. 1887, ch. 537, sec. 1. "Any transfer or conveyance of real estate hereafter made by a married man directly to his wife, and every trans- fer or conveyance of real estate hereafter made directly by a married woman to her husband, shall not be invalid because such transfer or conveyance was made directly from one to the other without the inter- vention of a third person." Dean v. M, E. R. Co., 119 N. Y. 540; White v. Wager, 25 id. 338; Winans v, Peebles, 33 id. 438 ; 6 id. 433 ; 71 Hun, 386 ; 35 id. 367 ; 14 Barb. 531 ; 17 id. 103 • 26 id. 419 ; 16 Johns. 110 ; 3 Johns. Ch. 587 ; Hunt v. Johnson, 44 N. T. 27 ; Ta.- linger v. Mandeville, 113 id. 438 ; Shepard v. Shepard, 7 Johns. Ch. 57 ; 79 Hun, 44 id. 79 ; 36 Barb. 419 ; 17 Johns. 548 ; 11 Paige, 377 ; 3 Edw. Ch. 59. The disability of a husband to take land by conveyance from his wife, is not re- moved by the statute (L. 1849, ch. 375) enabling her to devise and convey as if she were unmarried. WJiite v. Wager, 35 N. Y. 328. The disability of the husband to take land by conveyance from the wife remains as before the statute (L. 1849, ch. 375). Winans v. Peebles, 33 N. Y. 438. Since statute of 1848 a husband may convey real estate to a trustee for the benefit of his wife, and the trustee may convey the legal title to the wife. Wilbur v. n-aden- burgh, 53 Barb. 474. A husband may make a gift of personalty directly to his wife. Armitage v. Mace 96 N. Y. 538. Husband and wife may transfer personal property directly to each other Whiton v. Snyder, 88 N. Y. 399 ; Rawson v. R. R. Co., 48 id. 316; Phillips v. Wooster, 36 id, 413. Before the statute of 1887 (L. 1887, ch, 537) the common law disability was in force and a conveyance of lands from husband to wife or wife to husband was void. Dean v. M. E. B. Go., 119 N, Y, 540. Citing, White v. Wager, 35 N. Y. 328 ; Winans v. Peebles, 33 id. 423 ; on this point see, also, 6 id. 422 ; 71 Hun, 386 ; 35 id. 267 ; 14 Barb. 581 ; 17 id. 103 ; 36 id. 419 ; 16 Johns. 110 ; 2 Johns. Ch, 587 ; except when founded on such a valu- able or meritorious consideration that they will be sustained in equity. Citing, Hunt v. Johnson, 44 N. Y. 37 ; Tallinger v, Mandeville, 118 id. 433 ; Shep- ard V. Shepard, 7 Johns, Ch. 57 ; on this point see, also, 79 Hun 44 • id 79 • 26 Barb. 419 ; 17 Johns, 548 ; 11 Paige, 377 ; 3 Edw. Ch. 59. The statutes of 1848-9, 1860-2, did not remove the common law inability of the wife to take directly from the husband, which continued until L. 1880, ch, 473, which, by allowing a voluntary partition, enabled her in such a case to take a release of her husband's interest in the part of the premises partitioned to her. But not I. CAPACITY TO TAKE ESTATES. 63 1. BY GRANT. 3. BETWEEN HUSBAND AND WIFE. until L. 1887, ch. 537, could she take without limit directly from her husband. Johmon v. Bogers, 35 Huu, 267. The validity of promissory note purporting to have been given by a husband to his ■wife for a valuable consideration can not be impeached. Benedict v. Dnggs, 34 Hun, 94. Except as against creditors, a gift of personal property by a husband to his wife, is valid without the aid of the Married Woman's Acts. Kelly v. Campbell, 2 Abb. Ct. App. Dec. 492. 3. BY TRUSTEE TO MARRIED WOMAN. L. 184:9, oh. 375, sec. 2. " Any person who may hold or who may hereafter hold as trustee of any married woman, any real or personal €state or other property under any deed of conveyance or otherwise, on the written request of such married woman, accompanied by a certifi- cate of a justice of the supreme court that he has examined the condi- tion and situation of the property, and made due inquiry into the ca- pacity of such married woman to manage and control the same, may convey to such married woman, by deed or otherwise, all or any por- tion of such property, or the rents, issues or profits thereof, for her sole and separate use and benefit." In a case where, in 1844, certain premises were conveyed to plaintiff, a married woman, for life, as and for her own separate estate, free from the control of her hus- "band, her husband covenanting for a consideration expressed that she should hold the premises to her own separate and sole use, free from any claim or interference from him, the law of 1849, ch. 375, sec. 3, need not be resorted to. Wood v. Wood, 83 N. Y. 575. The fact that a general power of appointment is reserved does not prevent the appli- cation of L. 1849, ch. 375, sec. 3. Thebaud v. Schermerhoni, 30 Hun, 333. A trustee of a married woman's property is to decide whether to comply with re- quest of the beneficiary under L. 1849, ch. 375, sec. 3. Matter of Brewer, 43 Hun, 597. 4. IIAKRIAGE SETTLEMENT. The four following statutes confer upon a married woman the ca- pacity to receive certain property during her coverture as a jointure barring her dower interest : L. 1896, ch. 547, sec. 177— see statute at p. 180. L. 1896, ch. 547, sec. 178— see statute at p. 181. L. 1896, ch. 547, sec. 179 — see statute at p. 181. L. 1896, ch. 547, sec. 181— see statute at p. 196. L. 1845, ch. 115, sec. 7 (repealed by L. 1896, ch. 547, sec. 300) allowed a resident alien woman of this state to take estates by devise and hold same. L. 1845, ch. 115, sec. 8 (repealed by L. 1896, ch. 547, sec. 300) allowed a resident alien woman of this state to take lands or beneficial interests therein by devise or mar- riage settlement. Every agreement, promise or undertaking made upon consideration of marriage, unless in writing and subscribed by the parties, is void; and a settlement made sub- sequently in pursuance of such void agreement is invalid as against creditors. Dy- gert v. Remerachnider, 33 N. Y. 639. 64 V. MARRIED WOMEN. 1. BY GRANT. 5. ANTENUPTIAL AGREEMENT. L. 1848, ch. 200 (passed April 7). Sec. 4. " All contracts made be' tween persons in contemplation of marriage shall remain in full force after such marriage takes place." L. 184y, ch. 375 (passed April 11). Sec. 8. Same. Prior to the statute (3 R. S. 60, sec. 21) a married woman could make a ■will of her separate personal estate, which would be valid in a court of equity. But after the enactment of the Revised Statutes and before the passage of the act amending the act for the more effectual protection of the property of married women (L. 1849), a married woman could not dispose of her separate personal estate by an instrument in the nature of a will, althougli she was authorized by an antenuptial contract to enjoy, control and dispose of it during coverture, in the same manner and with the like effect as if she were a, feme sole. Nor could she so do even where the antenuptial agreement contained an express provision that she might dispose of it by will. An instrument which confers upon a married woman power to control and dispose of her separate estate during coverture, does not authorize her to make a tes- tamentary disposition of it. The original act for the more effectual protection of the property of married wo- men (L. 1848, p. 307) did not confer power upon a feine covert to devise or bequeath her property Wadhams v. ITie American Some Missionary Soc, 12 N. Y. 415. An oral agreement to marry, and pay the then existing debts of the proposed hus- band, in consideration that he convey to tlie proposed wife certain premises of which he is the owner, if fully performed by the wife, is valid and binding in equity upon ■the husband ; and a conveyance made to her of the premises in pursuance thereof is upon a good and sufficient consideration. Every agreement, promise or undertaking, made upon consideration of marriage, unless in writing and subscribed by the parties, is void; and a settlement made subse- quently in pursuance of such void agreement is invalid as against creditors. Dygert V. Remerschnider, 32 N. Y. 629. See, also. Pierce v. Pierce, 71 N. Y. 154. As to sufficient consideration to support ante nuptialagreements, see, also, Curry v. Ourry, 10 Hun, 366; Clark v. Clark, 38 id. 509; Van Allen v. Humphrey, 15 Barb. 555; Foster v. Foster, 5 Hun, 557; Mahon v. Smith, 60 How. Pr. 385. The fact that, at the time of making an antenuptial contract, the intended husband is indebted to a large amount does not, in the absence of fraud, invalidate the con- tract. Starkey v. Kelly, 50 N. Y. 676. A promissory note given in consideration of a promise to marry, which promise is afterward performed, is for a good consideration, and is valid under the statute of frauds. (2 R. S. 135, sec. 2.) A note given in consideration of a promise to marry is valid in the hands of the wife, after marriage (L. 1849, ch, 375, sec. 3), and an action may be maintained thereon by her against her husband. Wright v. Wright, 54 N. Y. 537. While an antenuptial contract, by which the future wife releases all claims against the estate of her husband upon his decease, will be sustained when fairly made, yet, from the confidential relations between the parties, it will be regarded with the most rigid scrutiny; and where the circumstances establish that the woman has been de- ceived, or induced by false pretenses to enter into the contract, it will be held null and void. It seems that the presumption is against the validity of such a contract, and the bur den of proof is cast upon the husband, or his representatives, to show perfect good I. CAPACITY TO TAKE ESTATES. 65 1. BY GRANT. 5. ANTENUPTIAL AGEBBMBNT. faith; and strict proof will be required, particularly where the provision made for the wife is inequitable and unreasonably disproportionate to the means of the husband. Pierce v. Pierce, 71 N. Y. 154; s. c, 9 Hun, 50. On the same point in general, see, also, Warner v. Warner, 18 Abb. N. C. 151; Fargo V. Fargo, 34 St. Rep. 536 ; Davis v. Wood, 31 id. 604 ; StarUey v. Kelly, 50 N. Y. 676; Curry v. Curry, 10 Hun, 366. The mutuality of the stipulations in an antenuptial contract is a sufficient con- sideration and need not be acknowledged. Morris v. Wall, 28 Hun, 510. An infant entered into an antenuptial contract conveying all her real estate to a trustee in trust for her separate iise. The facts did not show that the contract had been disaffirmed. The antenuptial contract operated as a release of the marital rights of the husband. Beardsley v Hotchkiss, 96 N.Y. 301, modifying 30 Hun, 605, digested, p. 994. See also Helck v. Reinheimer, 105 N. Y. 470. As to infancy of the wife see also, Temple v. Hawley, 1 Sandf. Oh. 153; Jones v. Butler, 30 Barb. 641 ; Wetmore v. Kissam, 3 Bosw. 331; Wetmore v. Holsman, 23 How. Pr. 203; Mcllvalne v. Kadel, 3 Rob. 429. By an ante nuptial agreement the woman covenanted that if, after marriage, the man died first, she would accept $1,500 "in full satisfaction of her dower in his estate, and shall bar her from claiming the same, either in his real or personal estate." He covenanted to provide by will for the payment of that sum "in lieu of dower, or her rights as his widow in his estate." The parties married and the husband died, having made provision by will as covenanted. Held, that the agreement was valid and remained in full force after marriage (L. 1849, ch. 375, sec. 3); that the intent was that the woman should take nothing as widow from her husband's estate; and that, therefore, there being no children living, the issue of such marriage, she was not entitled to the specific articles given by the statute (3 R. S. 83, sec. 9) to a widow; that, although not to be appraised, they were part of the estate, and she by her agree- ment, was estopped from claiming them. Also held, that the surrogate, on application of the widow to compel the executor to set apart said articles for her, had jurisdiction to determine the question. Young v. Hicks, 93 N. Y. 235, s. c, 27 Hun, 54. As to similar covenants of the wife see further. Carpenter v. Carpenter, 40 Hun, 263; Ennis v. Ennis, 48 id. 11; Watson v. Bon- ney, 2 Sandf. 405; Curry v. Curry, 10 Hun, 366; Warner v. Warner, 18 Abb. N. C. 51; Davis v. Wood, 31 St. Rep. 604. Testator, in promise of marriage, agreed to will a person, afterwards his wife, one- half of his property, which he did not do. Action therefore was sustained. Peck v. Vandemark, 99 N. Y. 29, aff'g 33 Hun, 214, digested p. 66. Antenuptial contracts intended to regulate and control the interest which each of the parties to the marriage shall take in the property of the other during coverture or after death, are favored by the courts and will be enforced in equity according to the intention of the parties. (3 Kent's Com. 165; Matter of Youngs, 37 Hun, 54; affirmed 93 N. Y. 235.) In order to effectuate such intention courts of equity will impose a trust upon the property agreed to be conveyed, commensurate w'ith the obligations of the contract. It is immaterial whether a trustee is appointed in the contract or not, or whether the property agreed to be conveyed be then owned by the parties, or is expected to be subsequently acquired. The contract also will be enforced in equity to accomplish the object the parties had in view, without reference to the validity of the agreement at law. (See notes to this case below, p. 66.) 9 66 V. MAEEIED WOMEN. 1. BY GRANT. 5. ANTENUPTIAL AGBBEMENT. By an antenuptial agreement between G. (the man) and E. (the woman), G. cove- nanted and agreed that, in case of his death, without leaving lawful issue by the contemplated marriage, previous to the death of E., all of the real and personal prop- erty, of which he should die possessed, should belong to her, The parties intermar- ried, but had no children, and G. died intestate seized of certain real estate, vipon which was a mortgage. E. died thereafter intestate, leaving no lawful heir. Con- troversy as to the right to the surplus money arising on foreclosure sale. Construction: Upon the death of G. the legal title to the real estate went to his heirs; but by force of the marriage settlement E. became the equitable owner, and a trust by implication arose in her favor; the heirs holding the title as a naked trust for her and subject to her right to be vested with it ondemand, Giddings v. Eastman, 5 Paige, 561; Wood v. Mather, 38 Barb. 473, 479; and upon her death without heirs her interest and rights reverted to the state and it was equitably entitled to the surplus. Johnston v. Spicer, 107 N. Y. 185; 41 Hun, 475. Note.' — " No especial formality is requisite in such instruments, and, in order to effectuate the intentions of the parties, courts of equity will impose a trust upon the property agreed to be conveyed commensurate with the obligations of the contract, or will decree their specific performance, and when such relief is inadequate or im- practicable from the situation of the property or the character of the contract, will award damaaes for its breach. De Barante v. Gott, 6 Burb. 496 ; Peck v. Vande- mark, 99 N. Y. 29; Pomeroy's Eq. Juris., sees. 1397, 1403; Schouler on Domestic Relations, 363-266, et. seq. ; Pierce v. Pierce, 71 N. Y. 154, 156. It is entirely im- material whether a trustee, to carry it into effect, has been appointed in the contract or not, or whether the property agreed to be conveyed be tlieu owned by the parties, or is expected to be subsequently acquired, if the contract is fair and reasonable and such as it is lawful for the parlies to make, and the rights of creditors or third per- sons have not intervened, it will be enforced in equity in such a manner as to accom- plish the object which the parties had in view, without reference to the validity of the agreement at law. Blanehard v. Blood, 3 Barb 354 ; De Barante v. Gott, 6 id. 496 ; Schouler's Domestic Relations, supra ; Atherley on Marriage Settlements (Lon- don, 1813), 58. The rule as stated by Pomeroy in his work on Equity Jurispru- dence is : "Among the agreements which the original common law treated as invalid irrespective of statutes, but which equity in the application of its conscientious principles regards as binding and enforces by granting its relief of specific per- formance, are the following : Agreements for the assignment or disposition of a possibility ; expectancy or hope of succession ; agreements to assign things in action ; executory agreements made between a man and woman who afterwards marry, which then became absolutely void at common law, but which equity may specifically en- force against eitlier husband or wife at the suit of the other." (Sec. 1297.) See Stover V. Eycleshimer, 46 Barb. 84. It is said in Bright's Husband and Wife, pp. "471, et seq., "a jointure which has been agreed by the husband before marriage to be made upon his intended wife will be good in equity although it be not actually so settled, but is permitted to remain in articles, or upon the husband's covenant ; for such a jointress being a purchaser of the provision by the marriage, is entitled in that character to the aid and protection of a court of equity ; accordingly such articles or covenant will be specifically per- formed." He further says that "in Tooke v. Hastings, 3 Vern. 97, where A. cove- nanted to settle lands of a certain value, and had no land at the time but afterwards purchased land, it was held that such land should be liable." (Pp. 191-193.) Note.''' — " The general rule as stated by Story (3 Eq. Jur. sec. 976), is that where- ever a trust exists, either by the declaration of the party, or by intendment or impli- cation of law, and the party creating the trust has not appointed any trustee to execute it, equity will follow the legal estate, and decree the person in whom it is vested to execute the trust." The heirs at law being infants it was directed that a referee be appointed to sell and convey the real estate and pay the proceeds to the plaintiff. In Peck v. Vandemark, 99 N. Y. 39, it was held that an antenuptial agreement was established by the letters of the parties to the effect that the intending husband L CAPACITY TO TAKE ESTATES. 67 2. BY WILL. ■would, in case the plaintiff intermarried with him, make provision by giving her by will one-half of his property, and the use of the other half for her life. The parties having intermarried, and the husband failing to make the provision agreed upon, it was held that this was a valid contract binding upon the testator, and the plaintiff could maintain an action against the executor to recover damages for the violation of the contract. The damages were held to be the value of one-half of the estate, both real and personal, absolutely, after paying debts and expenses of administration, and the use of the other half during her life. It has been the constant practice of the courts of this country, as well as of Eng- land, to enforce antenuptial agreements according to their terms, whether they relate to existing or after-acquired property, and to decree a specific or substituted perform- ance of them according to the nature of the case. 3 Kent's Com. 173; 3 Story's Eq. Jur., sec. 775, 1370 ; Bradish v. 6ibbs,3 Johns. Ch. 533; Reed v. Livingston, id. 481; Pom. Eq. Juris, sees. 1297, 1403 ; Smith v. Osborne, 6 H. of L. Cas 375 ; In re Pedder, 10 L. R. Eq. 585 ; Hammersley v. Bonan De Biel, 13 CI. & Fin. 45; In re Wilson's Exrs., 3 Barr. 325." (P. 194-5.) See, also, Mundy v. Munson, 40 Hun, 304 ; Tisdale v. Jones, 38 Barb. 533 ; Jones V. Butler, 30 id. 641; Wetmore v. Kissam, 3 Bos. 331; Wetmore v. Holsman, 23 How. Pr. 303 ; Mcllvaine v. Kadel, 3 Rob. 439 ; Foster v. Poster, 5 Hun, 557 ; Mahon v. Smith, 60 How. Pr. 385. Under an antenuptial agreement, containing the following clause : ' 'All the furni- ture, plate, horses, carriages, and other personal property in use by the parties for family purposes, at the lime of the death of either, shall vest absolutely in the survi- vor ;" only such property is included as both parties had been accustomed to use in their domestic life, and whose continued enjoyment was essential to the personal com- fort and convenience of those habituated to its daily use and not such as was em- ployed for the use and enjoyment of the respective parties individually. Oorliam v. Fillmore, 111 N. Y. 351. As to the construction and effect of contracts made in contemplation of marriage, see, also, Stewart v. Stewart, 7 Johns. Ch. 339 ; Loomis v. Loomis, 35 Barb. 634 Strong V. Skinner, 4 id. 546 ; on conflict of law, Le Breton v. Miles, 8 Paige, 261 Ordronanz v. Rey, 3 Sandf. Ch. 33; Wainwright v. Low, 57 Hun, 386. Deed in contemplation of marriage created a valid trust. Qenet v. Sunt, 113 N. Y. 158. See, on the same point, also. Shepherd v. Shepherd, 7 Johns. Ch. 57. Antenuptial contract did not create a trust. Wainwright v. Low, 133 N. Y. 313, 2. BY WILL. By L. 1849, ch. 375, § 1 (quoted a«te, p. 58), a married woman may take property by " devise or bequest, from any person other than her husband," etc. By L. 1887, ch. 537, sec. 1 (quoted ante, p. 62), a man may " trans- fer or convey " real estate directly to his wife. E. S., pt. 11, ch. vi., tit. 1, sec. 3. "A * * * devise may be made to every person capable of holding real estate." Sec. 4. " Every devise of any interest in real property, to a person who, at the time of the death of the testator, shall be an alien, not authorized by statute to hold real estate, shall be void. The interest so devised shall descend to the heirs of the testator ; if there be no such heirs competent to take, it shall pass under his will to the residuary devisees therein named if any there be competent to take such interest. 68 V. MARRIED WOMEN. 2. BY WILL. Slights of citizens and aliens to acquire real property by devise, see L. 1896, eh. 547, §§ 2, 5 (developed ante, pp. 1, 12). IMghts of female citizen, marrying an alien, to acquire real property by devise, see L. 1896, ch. 547, § 6 (developed ante, p. 25). 3. BY DESCENT. By L. 1849, ch. 375, § 1 (quoted ante, p. 58), a married woman may take "by inheritance " real and personal property. Eights of citizens and aliens to take by descent, see L. 1896, ch. 547, §§ 1, 5 (developed ante, pp. 10, 12.). Eights of female citizen marrying an alien to take by descent, see L. 1896, ch. 547, § 6 (see p. 25). II. CAPACITY TO CREATE ESTATES. 1. BY GRANT. Acknowledgments : At common law, a married woman's deed of conveyance ot ner prop- erty, other than her separate estate, was absolutely void. By the usage and custom of the colony of New York, a married woman's deeds of conveyance were recorded as valid, even without an acknowledgment or joint conveyance of her husband. Albany Fire Ins. Co. v. Bay, 4 K Y. 9; Van Winkle v. Constantine, 6 Hill, 177; s. c. afE'd in 10 IST- Y. 422; Hardenburg v. Lakin, 47 id. 109; Jackson v. Gilchrist, 15 Johns. 89. By a series of acts, L. of Feb. 16, 1771, 2 Van S. 311, L. of Feb. 26, 1788, ch. 44, sec. 3, L. of April 6, 1792, ch. 51, sec. 2, L. of April 6, 1801, ch. 155, sec. 2, 1 E. L., p. 369, sec. 2, passed April 12, 1813; 1 E. S. 758, sec. 10, passed Deo. 10, 1827, took eScct Jan. 1, 1896; all being substantially a development of the same provision, en- acted practically that a married woman's deeds of conveyance, if she were a resident within the state, should be valid upon the making of a prescribed acknowledgment before the proper authorities, etc. L. 1771, Albany Fire Ins. Co. v. Bay; Van Winkle v. Constantine; Hardenburg V. Lakin; Jackson v. Grilchrist, supra; L. 1801, E. A., 1 K. & E. 478 sec. 2; Gillet v. Stanley, 1 Hill, 121; L. 1813, 1 E. L. 369, sec. 2; Doe v. Howland, 8 Cow. 277; see, also, Jackson v. Stevens, 16 Johns. 110. See, also, Martin v. Dwelly, 6 Wend. 9; Bool v. Mix, 17 id. 119. These provisions were made unnecessary since April 11, 1849 bv the enactment of a superseding L. of 1849, ch. 375, sec. 1; (L. of April 7 1848, ch. 200, contained no provision as to her conveyances); nnd they were not revived by L. 1860-2. Yale v. Dederer, 18 JST. Y. 265-271- II. CAPACITY TO CREATE ESTATES. 69 1. BY GRANT. Wiles V. Peck, 26 id. 42; Eichardson v. Pulver, 63 Barb. 67; Blood v. Humphrey, 17 id. 660; 12 How. Pr. 441; 36 Super. Ct. 297. Such parts of these statutes, 1771, etc., as pertain to the special acknowledg- ment of a married woman, were abrogated by L. of May 5, 1879, ch. 249; L. of May 15, 1880, ch. 300, adding to the repeal the provisions in regard to the proof of execution. Both substituted therefor provi- sions requiring her acknowledgment and proof of deeds to be tnereafter made in the same manner as in the case of s,feme sole. Both of these latter acts, L. 1879-80, were expressly repealed by L. 1896, ch. 547, sec. 300. In the case of married women without the state, the L. of March 8, 1873, 2 Van S. 765, enacted substantially the same provisions as in the case of a married woman within the state. The L. of April 6, 1801 (R A. 1 K. & R. 748), in substance re-enacted in 1 R. L., oh. 97, sec. 2, passed April 12, 1813, and 1 R S. 758, sec. 11, passed Deo. 10, 1827, and taking effect Jan. 1, 1830, made practically the same provisions in regard to married women without the state as L. 1879-80 did in the case of married women within the state. IRS. 758, sec. 1, repealed by L. 1896, ch. 547, sec. 300; see, also, L. 1835, eh. 275, at p. 71. L. 1896, ch. 547, sec. 3. "A person other than a minor, an idiot or person of unsound mind, seized of or entitled to an estate or interest in real property, may transfer such estate or interest" By L. 1849, ch. 375, sec. 1 (quoted ante, p. 58), a married woman may convey real and personal property, and any interest and estate therein in the same manner and with like effect as if she were unmarried. ' L. 1860, ch. 90, sec. 2. " A married woman may bargain, sell, assign and transfer her separate personal property, and carry on any trade or business, and perform any labor or services on her sole and separate ac- count and the earnings of any married woman, from her trade, busi- ness, labor or services, shall be her sole and separate property, and may be used or invested by her in her own name." The provision of the act of 1860 (L. 1860, ch. 90, sec. 3) '-concerning the rights and liabilities of married women," which authorizes a married woman "to perform any labor or service on her sole and separate account," does not wholly abrogate the rule of the common law entitling the husband to the services and earnings of the wife; she may still allow him to claim and appropriate the fruits of her labor, and in the absence of an election on her part to labor on her account, or of circum- stances showing her intention to avail herself of the privilege conferred by the statute, the husband's common law right is unaffected. Birkbeck v. Aekroyd, 74 K Y. 356. A married woman may purchase property and carry on business on her separate account through her husband as her agent. 70 V. MAREIED "WOMEN. II. CAPACITY TO CREATE ESTATES — 2. BY POWERS. The fact that his services are gratuitous does not impair her title to the property or income from, the business. Abbey v. Deyo, 44 N. Y. 345. Husband and wife may form a partnership and give notes in the firm name. &i'aff V. KinTiey, 37 Hun, 405. See, also, Fairlee v. Bloomingdale, 34 Am. L. Reg. (N. S.) 648 and note; Kaufman V. Schoeffel, 87 Hun, 140, contra. A married woman can not carry on business as a partner with her husband. Kauf- man V. Schoeffel, 37 Hun, 140. 8ee same case 46 Hun, 571, aff'd 113 N. Y. 635. Recognition by the husband of his wife's equitable claim to profits in a business con- ducted by them jointly— deed direct from a husband to wife, when sustained— parol trust, evidence required to sustain it. Mason v. Lihbey, 19 Hun, 119, art'd 90 N. Y. 683. L. 1862, ch. 172, sec. 1 (passed March 20), amending L. 1860, oh. 90, sec. 3. " Any married woman possessed of real estate as her separate property may bargain, sell and convey such property and enter into any contract in reference to the same, with the like effect in all respects as if she were unmarried, and she may in like manner enter into such eoy- enant or covenants for title as are usual in conveyances of real estate, which covenants shall be obligatory to bind her separate property, in case the same or any of them be broken." L. 1860, ch. 90, sec. 3 provided that married women could convey, but only with the assent of the husband, except as provided thereafter. L. 1860, ch. 90, sees. 4, 5, 6, specified the manner of and in what cases the giv- ing of the consent could be dispensed with. See Wing v. Schram, 79 N. Y. 619, aff'g 18 Hun, 877. Sees. 8, 4, 5, 6, expressly repealed by L. 1863, ch. 173, sec. 2. Under the provisions of the act of 1860, concerning the rights and liabilities of hus- band and wife (L. 1860, ch. 40), as amended in 1863 (L. 1863, ch. 173), the para- phernalia of a wife, given her by her husband, which prior to these statutes was her separate estate in equity, became clothed with all the incidents of a legal estate. Baw- son V. Tfis Pennsylvania B. Co., 48 N. Y. 313. The title of the paraphernalia of a wife, which has been paid for and furnished by the husband, is, in the absence of evidence of a gift thereof to the wife.in him, and for an injury to it, he is the proper party to bring an action. Curtis v. D., L. d W. B. Co., 74 N. Y. 116. As incident to the right given to married women by the act of 1863 (ch. 173) to acquire property by purchase, she may purchase property, either real or per- sonal, upon credit, and is personally liable for the purchase price as if she were a feme sole, and this although she had no separate estate at the time of the purchase, and without regard to the question as to the purpose for which the purchase was made. Tiemeyer v. Turnquist,' 85 N. Y. 516. 2. BY POWERS. L. 1896, ch. 547, sec. 123. "A special and beneficial power may be granted, to a married woman, to dispose, during the marriage, and with- out the concurrence of her husband, of any estate less than a fee, be- longing to her, in the property to which the power relates; "or * * * 1 R. S. 733, sec. 87, same, repealed by L. 1896, ch. 547, sec. 800. By 1 R. S. 737, sec. 130 (repealed by L. 1896, ch. 547, § 300), if a married woman II. CAPACITY TO CREATE ESTATES. 71 3. BY RELEASE OF DOWER. was given the power to dispose of her estates in fee during marriage, she might by virtue thereof create estates as if she were a, feme sole. L. 1896, ch. 547, sec. 122. "A general, and beneficial power may be given to a married woman, to dispose, during her marriage, and with- out the concurrence of her husband, of real property conveyed or devised to her in fee." 1 R. S. 733, sec. 80, same, repealed by L. 1896, ch. 547, sec. 300. By 1 R, S. 735, sec. 110 (repealed by L. 1896, ch. 5'47, § 300), a married woman could execute a power by grant or devise during marriage and without her husband's concurrence, unless the power giving her such power expressly prohibited it. By 1 R. S. 735, sec. Ill (repealed by L. 1896, ch. 547, § 300), an infant married woman's powers could be executed by her until her majority. By 1 R. S. 736, sec. 117 (repealed by L. 1896, ch. 547, § 300), the concurrence of a husband was not necessary to a married woman's powers by grant, but they were not valid unless she acknowledged as prescribed in the case of deeds. See note at p. 68. L. 1878, ch. 300, sec. 1. "Any married woman being a resident of this state, and of the age of twenty-one years or more, may execute, acknowledge and deliver her power of attorney with like force and effect and in the same manner as if she were a single woman." By L. of May 11, 1835, ch. 275, sec. 1 (repealed by L. 1896, ch. 547, g 300), a non- resident married woman's power of attorney for conveyance of New York real estate was as valid as if she had executed it herself, if acknowledged in the manner prescribed by R. S. sec. 11. See note, p. 68. L. 1896, ch. 547, sec. 187. A married woman may release dower by power of attorney. See statute at p. 71. 8. BY RELEASE OF DOWER. Code Civ. Pro., sec. 1571. "A married woman may release to her husband her inchoate right of dower, in the property directed to be sold by a written instrument, duly acknowledged by her and certified, as required by law with respect to the acknowledgment of a convey- ance to bar her dower, which must be filed with the clerk. Thereupon the share of the proceeds of the sale, arising from her contingent interest, must be paid to her husband." L. of April 38, 1840, ch. 177, sec. 3, substantially the same. By L. 1848, allowing a married woman to convey by deed interest in estates, she may release her dower (statute, p. 57). But not to her husband until L. 1880, in the case of voluntary partition (statute, p. 61). After L. 1887 (statute, p. 63), she could in any case. L. 1896, ch. 547, sec. 187. "A married woman of full age may release her inchoate right of dower in real property by attorney in fact in any case where she can personally release the same." L. of May 5, 1893, ch. 599, sec. 1 (repealed by L. 1896, ch. 547, § 300), substan- tially the same. See, also, L. 1878, ch. 300, sec. 1, and L. 1835, ch. 375, sec. 1, at p. 71. 72 V. MARRIED WOMEN. II. CAPACITY TO CREATE ESTATES — 4. BY WILL. By L. 1849, ch. 375, § 1 (quoted ante, p. 58), a married woman may " devise real and personal property, and any interest or estate therein, and the rents, issues and profits thereof in the same manner and with like effect as if slie were unmarried." The Law of 1848 {ante, p. 57), which this amends, contains nothing in regard to her caj)acity to create estates by will. L. 1848, ch. 300, as amended by L. 1849, ch. 375, does not give to a married woman power to make a testamentary disposition of her real estate while she is an infant Zimmerman v. Schoeufeldt, 3 Hun, 692. 2 R. S. 56, sec. 1 (passed Dec. 10th, 1828, took effect Jan. 1st, 1830, amended by L. 1867, ch. 782). " All persons, except idiots, persons of unsound mind and infants, may devise their real estate by a last will and testament, duly executed according to the provisions of this title." As originally enacted the above section brought married women within the exception. 1 R. L. 364 (passed Mar. 5th, 1813), ch. 33, sees. 1, 5, substantially the same, except the latter (L. 1813), declares married women incapacitated to devise. This disability was removed by L. Apr. 35th, 1867, ch. 783. General restriction. L. 1860, ch. 360, sec. 1. "No person having a husband, wife, child or parent, 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 or her debts (and such devise or bequest shall be valid to the extent of one-half, and no more )" (See corporations, p. 38.) Rights of citizens and aliens to devise real property, see L. 1896, ch. 547, §§ 3, 5 (quoted ante, pp. 3, 13). Rights of female citizen marrying an alien to devise real property, see L. 1896, ch. 547, § 6 (quoted ante, p. 25). 2 R. S. 60, I 31 (passed Dec. 10, 1838, took effect Jan. 1, 1830, amended L. 1867, ch. 782). "Every male person of the age of eighteen years or upwards, and every female of the age of sixteen years or upwards, of sound mind and memory, and no others, may give and bequeath his or her personal estate by will in writing." As originally enacted married women were excepted. As to what law governs a non-resident's will of New York personal property, see Code Civ. Pro.; sec. 2694. Prior to the statute ( 2 R. S. 60, sec. 21) a married woman could make a will of her separate personal estate which would be valid in a court of equity. But after the en. actment of the Revised Statutes, and before the passage of the act amending the act for the more effectual protection of the property of married women (L. 1849, ch. 375), a married woman could not dispose of her separate personal estate by an instru- ment in the nature of a will, although authorized by an antenuptial contract to enjoy, control and dispose of it during coverture, in the same manner and with the like effect as if she were sole. Nor could she do so even where the antenuptial agreement contained an express provision that she might dispose of it by will. Per Denio, J. , "An instrument, which II. CAPACITY TO CREATE ESTATES. 73 4. BY WILL. confers upon a married woman power to control and dispose of her separate estate during coverture, does not authorize her to make a testamentary disposition of it." The original act for the more effectual protection of the property of married women (L. of 1848, ch. 300), did not confer power upon nfeme covert to devise or bequeath her property. Wadhams v. American Home Missionary Society, 12 N. T. 415. R. S. pt. 3, ch. 6, tit. 1, sec. 49 aa amended by L. Dec. 10, 1838, does not limit the testamentary capacity given to married women by the statute of 1849, ch. 375, sec. 1. Cotheal v. Cotheal, 40 N. Y. 405. 10 VL PERSONS "CIVILLY DEAD." Will of S. devised his real estate to his wife for life if she remained unmarried, and upon her decease or marriage, to C. ; in case of the death of the latter without children, the remainder to go to A. The wife o£ the testator survived him, and after her death C, who, at the time was unmarried and without children, was convicted of murder in the second degree and sentenced to imprisonment for life. In an action of ejectment wherein plaintiff claimed under A., brought while 0. was living, held (Earl, J., dissenting), that the title of C. to the real estate devised was not divested as a consequence of his sentence, and that A. or his grantee had no present vested interest upon which to maintain ejectment. By the general rule of the common law, civil death did not operate as a divestiture of the estate of the convicted. Whatever may have been the effect of the provision of the act of 1799 (L. 1799, oh. 57) declaring that where a person shall be convicted for felony and sentenced to imprisonment for life, such person shall be deemed to be " civilly dead to all intents and purposes in the law," when the lan- guage was changed by the provision of the Revised Statutes (2 R. S. 701, sec. 20), re-enacted in the Penal Code (sec. 708) enacting simply that a person sentenced to imprisonment for life " shall thereafter be deemed civilly dead," this was declaratory of and restored the will of the common law. (Earl, J., dissenting.) It seems, the statutory provisions regmlating the transfer and devolu- tion of property upon the death of the owner, refer simply to a natural, actual death. A rfesum^ of legislation and of judicial decisions in this state and in England, upon the subject of property rights, as affected by civil death given. Avery v. Everett, 110 N. Y. 817. Section 707 of the Penal Code (N. Y.), which prescribed that "a sentence of imprison' ment in a state prison for any term less than for life forfeits all the public office and suspends, during the term of the sentence, all the civil rights and all private trusts, authority or powers of, or held by, the person sentenced,", does not deprive a person so imprisoned, of the power to take or convey by grant or devise. La Ghapelle v. Burpee; 69 Hun, 436, citing Avery v. Everett, 110 N. Y. 317. As to acquiring property by crime, see p. 1210. (74) VII. STATE OR NATION. The validity of a contingent bequest to United States questioned but not decided. Burrill v. Boardman, 43 N. Y. 254. " The devise is, primarily, " to the people of the United States," to establish and maintain, perpetually, a school for the education of per- sons undefined, except as a class; and, secondarily, "to the people of the state of Virginia," for the same purpose. Now, conceding that the testator intended as the trustee of the charity, the United States, as a political body, has it, as such, capacity to take and act? We are not advanced a single step towards a solution of the point by a concession that the United States government may take directly by gift, grant, or devise, property for governmental use or benefit. If it takes, under the devise and bequest of the testator, it must be upon the trust and for the special charity, viz., to found and perpetually conduct a school for agricultural instruction of a certain class of children in the state of Virginia. Is it, therefore, within the scope of its political corporate capacity to administer indefinite charitable trusts? It seems to me there can be but one answer. The United States exists under grants of power, express or implied, in a written constitution, and the func- tions of all the departments are definitely limited and arranged. It is not within the express or implied powers of the government, as organized, to administer a charity. The action in the case of Smith- son's bequest to found an institution of learning at Washington, furnishes no evidence of its capacity, simply as a politica lorganization, to take and hold property in trust for charitable purposes. That was an English charity. The case was determined by the law of the domicil. It was a charity under the statute of Elizabeth, and admin- istered as such ; and took effect only on a law of Congress organizing the institution. So, also, with regard to the state of Virginia, however comprehensive the state sovereignty, its officers are regulated in their duties by a written constitution, which does not contemplate special trust functions. Simply as a political corporation, neither government has capacity to take or act. If, then, the devises and bequests were intended to be made to the United States, and to the state of Virginia, as political bodies, I think they are void, because neither the United States nor the state is capable of taking as trustee for the management of the special charity." (Pp. 122-3.) Levy v. Levy, 33 N. Y, 97 rev'g 40 Barb. 585, digested p. 857. (75) (0 VII. STATE OR NATION. The word " person" in statute of wills (2 E. S. 57, sec. 3) authoriz- ing devises to any person capable by law of holding real estate, does not include a state or nation, but only natural persons and such corpo- rations as are authorized by law of the state to take. Hence, devise of lands to United States is void. Levy v. Levy, 33 N. Y. 99 ; Eiddall V. Bryan, 14 Md. 444 ; Story on Const, sec. 1441 ; Oooley on Const. Law, 525. The United States may acquire lands by voluntary con- veyance authorized by law of state where land is situated or by emi- nent domain. In re Fox, 52 K Y. 520, affg 63 Barb. 157, aff'd, 4 Otto, 315. A devise of real estate to the United States is void. See Matter of Merriam, 73 Hun, 587. A bequest to the government of the United States is valid. Mattel- of Mernam.liX N. Y. 479; afE'g 73 Hun, 587. CREATION AND DIVISION OF ESTATES. I. BNUMEEATION OF ESTATES, p. 19. 11. ESTATES IN FEE SIMPLE AND FEE SIMPLE ABSO- LUTE, p. 80. Ill ESTATES TAIL ABOLISHED ; KEMAINDERS THERE- ON, p. 83. IV. FREEHOLDS, p. 86. V. ESTATES OP INHERITANCE, p. 87. YL ESTATES FOR LIFE, p. 87. I. WHETHER AN ESTATE IS IN FEE OR FOR LIFE, p. 87. II. RIGHTS AND DUTIES OF LIFE TENANT, p. 130. III. POSSESSION OF CORPUS BY LIFE TENANT, p. 149. IV. DOWER, p. 156. V. CURTESY, TENANCY BY, p. 304. VI. PRESUMPTION OF DEATH OF LIFE TENANT, p. 232. VII. LEASES BY LIFE TENANT, p. 323. VIII. RESTRICTIONS ON CREATION OF LIFE ESTATES, p. 333. YII. CHATTELS REAL, p. 225. L ESTATES FOR YEARS, p. 335. II. ESTATES FOR LIFE OF THIRD PERSON, p. 339. VIIL CHATTEL INTERESTS, p. 230. I. ESTATES AT WILL, p. 330. 11. ESTATES BY SUFFERANCE, p. 230. IX. ESTATES IN POSSESSION AND IN EXPE0TANC7, p. 280. X. ESTATES IN EXPECTANCY, p. 23L I. REVERSIONS, p. 331. II. FUTURE ESTATES, p. 333. L REMAIXDERS,, p. 233. 2. FUTURE ESTATES OTHER THAN REMAINDERS, p. 234. 3. CONTINGENT REMAINDER ON TERM OF YEARS, p. 239. (77) 78 CREATION" AND DIVISION OF ESTATES. X. ESTATES IN EXPECTANCY— Continued. II. FUTURE ESTATES, p. 232. 4. ESTATE FOR LIFE AS REMAINDER ON TERM OF YEARS, p. aiO. 6. MEANING OF "HEIRS" AND "ISSUE" IN CERTAIN REMAINDERS, p. 240. 6. CREATION OF FUTURE AND CONTINGENT ESTATES, p. 241. 7. FUTURE ESTATES IN THE ALTERNATIVE, p. 243. 8. FUTURE ESTATES VALID THOUGH CONTINGENCY IMPROBA- BLE, p. 243. 9. CONDITIONAL LIMITATIONS, p. 244. 10. WHEN HEIRS OF LIFE TENANT TAKE AS PURCHASERS, p. 245. 11. WHEN REMAINDER NOT LIMITED ON CONTINGENCY DEFEAT- ING PRECEDENT ESTATE TAKES EFFECT, p. 246. 13. POSTHUMOUS CHILDREN, p. 246. 13. WHEN EXPECTANT ESTATES ARE DEFEATED, p. 247. 14. EFFECT ON VALID REMAINDERS OF DETERMINATION OP PRE- CEDENT ESTATE BEFORE CONTINGENCY, p. 250. 15. QUALITIES OF EXPECTANT ESTATES, p. 251. 16. VESTED AND CONTINGENT ESTATES, p. 252. 17. VESTED ESTATES— CASES, p. 358. 18. CONTINGENT ESTATES -CASES, p. 308. 19. DEATH— ESTATES ON CONTINGENCY OF, p. 346. 20. LIMITATION OF SUCCESSIVE LIFE ESTATES, p. 365. 21. REMAINDERS ON ESTATES FOR LIFE OF THIRD PERSON, p. 365. 22. WHEN REMAINDERS TO TAKE EFFECT IF ESTATE BE FOR LIVES OP MORE THAN TWO PERSONS, p. 367. 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP, p. 367. 24. LIMITATIONS OF CHATTELS REAL, p. 498. 25. UNDISPOSED OF RENTS AND PROFITS, p. 498. XI. ACCUMULATIONS, p. 499. XII. ESTATES IN SEVERALTY, JOINT TENANCY, AND IN COMMON, p. 531. I. ESTATES BY THE ENTIRETY, p. 531. XIII. WHEN EXPECTANT ESTATES ARE DEEMED CRE- ATED, p. 660. I. ENUMERATION" OF ESTATES. *Real Prop. L., sec. 20. Enumeratioa of Estates. "Estates in real propertyf are divided into estates of inheritance, estates for life, estates for years, estates at will, and by sufferance." 1 R. S. 722, sec. 1, Banks's 9th ed., p. 1789, repealed by Real Prop. L. "Estates in lands are divided into estates of inheritance, estates for life, estates for years, and estates at will and by sufferance." Explanatory note to sec. 20. — An estate in land is the interest that the tenant has in the same, and is considered with reference (1) to the quantity of interest which the tenant has, or the duration of his interest ; (2) the time at which such interest is to be enjoyed ; (3) the number and connection of the tenants. Greenleaf's Cruise on Eeal Property, vol. 1, 44. Sec. 20 treats of the quantity of the estate, that is, to its duration and extent, and this duration and extent is primarily measured by the division into estates of freehold and estates not of freehold, as provided by sec. 23. * The Real Property Law is contained in L. 1896, ch. 547 (ch. 46 of the General Laws), and took effect Oct. 1, 1896. The statutes repealed are enumerated in section 300 thereof. Sec. 1 provides, "This chapter does not alter or impair any vested estate, interest, or right, nor alter or affect the construction of any conveyance, will, or other instrument which has taken effect at any time before this chapter becomes a law." fSec. 1 "of the Real Property Law provides that "the term 'real property' and ' lands,' as used in this chapter, are co-extensive in meaning with lands, tenements, and hereditaments." See Real Prop. L., sec. 208. As to what is comprehended in the word "lands," see Kent's Com. vol. 1,401, et seq. ; Greenleaf's Cruise on Real Prop. vol. 1, 36, et acq. ; 41, et seq.; R. S. N. Y. vol. 1, p. 762, sec. 36 ; Banks's 9th ed. p. 1841 : 2 R. S. 137, sec. 6. (79) n. ESTATES IN FEE SIMPLE AND FEB SIMPLE ABSO- LUTE. Eeal Prop. L., sec. 2L Estates in fee simple and fee simple abso- lute. "An estate of inheritance continues to be termed a fee simple, or fee, and when not. defeasible or conditional, a fee simple absolute, or an absolute fee. 1 R. S. 723, sec. 3, Banks's 9th ed., 1789, repealed by Real Prop. L. " Every estate of inheritance, notwithstanding the abolition of tenures, shall con- tinue to be termed a fee simple or fee; and every such estate, when not defeasible or conditional, shall be termed a fee simple absolute or absolute fee." The term " fee simple " meant in the common law pure inheritance, and was the name of an estate in land which might pass from the owner to his heirs forever, and was the greatest estate capable of crea- tion.* Kent's Com. vol. 4, p. *5. At common law fees were techni- cally divided into "fees simple" or "absolute fees," and fees that might forever be inherited by the heirs of the owner thereof; but which, on the other hand, might be defeated by the happening of some event in the future that would interrupt the inheritance. The latter class is variously called "qualified," "conditional," "base," or "deter- minable fees."f Jackson v. Van Zandt, 12 Johns. 176 ; Van Rens- selaer's Heirs v. Pennaman, 6 Wend. 569 ; Kent's Com. vol. 4, pp. *5, 9. * "A fee, in the sense now used in this country, is an estate of an inheritance in law, belonging to the owner, and transmissible to his heirs. No estate is deemed a fee, unless it may continue forever." Kent's Com. vol. 4, p. *4. f "A qualified, base or determinable fee (for I shall use the words promiscuously), is an interest which may continue forever, but the estate is liable to be determined without the aid of a conveyance, by some act or event, circumscribing its continu- ance or extent. Though the object on which it rests for perpetuity may be transi- tory or perishable, yet such estates are deemed fees, because, it is said, they have a possibility of enduring forever. A limitation to a man and his heirs, so long as A. shall have heirs of his body ; or to a man and his heirs, tenants of the manor of Dale ; or till the marriage of B. ; or so long as St. Paul's church shall stand, or a tree shall stand, ^are a few of the many instances given in the books, in which the estate will descend to the heirs, but continue no longer than the period mentioned in the respective limitations, or when the qualification annexed to it is at an end. If the event marked out as the boundary to the time of the continuance of the estate, becomes impossible, as by the death of B. before his marriage, the estate then ceases to be determinable, and changes into a simple and absolute fee ; but until that time, the estate is in the grantee, subject only to a possibility of reverter in the grantor. It is the uncertainty of the event, and the possibility that the fee ma y last forever, that renders the estate a fee, and not merely a freehold. All fees liable to be defeated by an executory devise, are determinable fees, and continue descendible- inheritances until they are discharged from the determinable quality annexed to them, (SO) XI. ESTATES IN FEE SIMPLE AND TEE SIMPLE ABSOLUTE, ' 81 By the twenty-first section all estates of inheritance, that is all estates that may be transmitted from the owner to his heirs forever, are termed "a fee simple or fee," those not defeasible or conditional, that is, those that must so descend, are termed " fees simple absolute or absolute fees." Hence, the term "fee simple" would include, and the term " fee simple absolute" would exclude conditional,* quahiied, or base fees, in short, all fees to which possible bounds are set. Thus grant of land to A. forever is a fee simple absolute; but a grant to A. of lands, with a further provision that if A. die under age, or without issue, or that in case some event not certain to happen, do happen, then that the land shall pass from A. to B., is a fee simple, but, nevertheless, a fee limited or debased by a condition or limitation that may destroy it, and hence not a fee simple absolute under section twenty-one. In qualified or base fees there is an estate of inheritance in the owner A. for his interest may, and if uninterrupted by the happening of the events named in the condition, must descend to his heirs, and he has the same right of enjoyment as if his fee were absolute (Kent's Com. vol. 4, p. *9); meanwhile B. has a future contingent interest. In the second section of the R S. repealed, the words "notwithstand- ing the abolition of tenures," have reference to the abolition of tenures by the statute, and also now by the constitution. f "It may be that the revisers of the statutes thought the use of the words was necessary, lest it be concluded that by the use of feudal terms feudal rights were also re- vived. Bat the feudal principle was never admitted into the United States as a feature of political government, but only asthesoiwce of the rules of holding and transmitting real property. The military and oppressive attributes of the feudal system, although already virtually dead in Eng- land, were formally abolished by statute, 12 Car. 2, and were never brought into the colonies. Grants of land on this continent by the Crown to patentees were to be held in free and common socage. ":J: either by the happening of the event or a release. These qualified or determinable fees are likewise termed base fees, because their duration depends upon the occur- rence of collateral circumstances, which qualify and debase the purity of the title.'' Kent's Com. vol. 4, p. *9. *A conditional fee originally referred to one restrained to some particular heirs, exclusively, as to the heirs of a man's body (see, post, p. 84 ; Kent's Com. vol. 4, p. 11 *, ) but the term is not now so restricted. tAct of the general assembly of the colony of New York of May 13th, 1691, L, 1787, tenth sec. ch. 36; [see Kent's Com. vol. 3, p. *511]; sees. 1-4, part 11, ch. 1, tit. 1 R. S., sees. 11, 13, 13, art. 1, Const. N. Y. JWhile, since 1787, none of the incidents peculiar to feudal tenures can attach to estate granted, yet the grantee of the estate may be made liable to conditions of rent and services, if stipulations therefor be inserted in the deed and be consistent with rules of law, such conditions run with the land and bind the heirs and assignees 11 82 II. ESTATES IN FEE SIMPLE AKD FEE SIMPLE ABSOLUTE. (Greenleaf's Cruise, vol. 1, p. 23 n.) In New York tenures, that is, holdings of land, were declared to be in free and common socage* by statute and by the constitution, which last provides that all the lands ■within this state are allodial, so that the entire and absolute property is vested in the owners, according to the nature of their respective estates, and subject to the liabilities to escheat, that is, to revert to the state, provided there be a defect or failure of heirs, as in the state is the orig- inal and ultimate right of property. Feudal tenures were thereby abolished, except then lawfully created rents and services certain. .It •was not intended by this to change any of the established rules of ac- quiring and transmitting real property; but rather to relieve real prop- erty from the servitudes of the feudal law. Kent's Commentaries, vol. 3, pp. *509 to *514; 4 id. *314. of the grantee, independently of tenure and of privity of contract or estate. In this case the lease was made in 1789, but in 1846 the constitution was changed so as to prevent the reservation of a perpetual yearly rent, in a grant in fee, as a condition of the estate. Van Bensselaer v. Dennison, 35 N. Y. 393. see, also, Van Rensselaer v. 81ingerland, 36 id. 580; Van Rensselaer v. Barringer, 39 id. 9; Hosford v. Bal- lard, id. 147. *Socage tenure denotes lands held by a fixed and determinated service, not mili- tary and not in the power of the lord to vary at his pleasure. Kent's Com. vol. 8, p, 646. Ill ESTATES TAIL ABOLISHED ; REMAINDEES THEREOK Real Prop. L., sec. 22. Estates tail abolished; remainders thereon. " Estates tail have been abolished, and every estate which would be adjudged a fee tail, according to the law of this state, as it existed be- fore the twelfth day of July, seventeen hundred and eighty-two, shall be deemed a fee simple ; and if no valid remainder be limited thereon, a fee simple absolute. Where a remainder in fee shall be limited on any estate which would be a fee tail, according to the law of this state, as it existed previous to such date, such remainder shall be valid, as a contingent limitation on a fee, and shall vest in possession on the death of the first taker without issue living at the time of such death." 1 R. S. 733, sec. 3, Banks's 9tli ed., p. 1789, repealed by Real Prop. L. "All es- tates tall are abolished, and every estate which would be adjudged a fee tail, accord- ing 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.'' 1 R. S. 733, sec. 4, Banks's 9th ed., p. 1789, repealed by Real Prop. L. " Where a remainder in fee shall be limited upon an estate which would be adjudged a fee tail, according to the law of this state, as it existed previous to the time mentioned in the last section, such remainder shall be valid as a contingent limitation upon a fee, and shall vest in possession on the death of the first taker without issue at the time of such death." Explanatory note to sec. 22.— In 1772, and again on Febru- ary 23, 1786 (ch. 12), acts were passed converting all estates in tail into estates in fee simple. Under these acts, if a subsequent estate like a remainder or executory devise were created to take effect, if the estate in tail failed, or upon any other lawful contingency, it was held that the latter estate was cut off, and that the donee took the entire and only estate in fee simple. Such was the decision in Vanderheyden v. Crandall, 2 Denio, 9; Van Rensselaer v. Poucher, 5 id. 35; Lott v. Wykoff, 1 Barb. 565; 2 K Y. 355; Wendell v. Crandall, 1 id. 491. Hence, the act of 1786 simply converted the estate tail into a fee sim- ple absolute, cutting off all estates subsequent to that of the donee. In the revision of 1830, however, sections three and four were adopted. These sections cut off the entail and vest the estate in the donee, but if a valid remainder is limited on the donee's estate, such remainder takes effect and is not cut off as was adjudged to be the case under the acts previous to the Revised Statutes. See Nellis v. Nellis, 99 N. Y. 505. (83) 84: III. ESTATES TAIL ABOLISHED; KEMAINDEES THEREON. "At common law, where an estate is conveyed or devised to A., and if he dies without issue or without heirs of his body, or without heirs, where the limitation over is to an heir, then to B. in fee, A. takes an estate tail, on which the limitation to B. is valid as a remainder; and if the entail be not barred (by a fine or common recovery), the fee will vest in B. or his heirs, in case of the failure of the issue of A., at any distance of time." Reviser's note, appendix to Revised Statutes, second edition, vol. 3, p. 568. An estate tail is an estate deriving its existence from the statute de donis conditionalibus, and descendible to some particular heirs only of the person to whom it is granted, and not to his heirs general. Greenl'f Cruise on R. P., p. 75. In the earlier history of the common law, gifts of land were unquali- fied, and the donee took an estate of inheritance. However, with the primary motive of continuing the ownership of land* in those of the donor's blood, or in such line of descent as the donor preferred, gifts came to be made to the donee and the heirs of his body (estates in tail general), whereby the land passed to the donee's issue without exclusion of certain lines of heirs, or to the donee and certain heirs of his body, as those by a certain marriage (estates in tail special), whereby the land passed exclusively to the line of heirs designated. There were estates to A. and his heirs male, whereby only his male heirs took in tail male, and estates to A. and his heirs female, whereby the females took in tail female to the exclusion of male heirs. The Courts, in hostility to such entails, interpreted such gifts to create con- ditional fees, viz.: an estate in fee to A, the donee, upon the condition that such donee should have heirs born alive, and it was considered that upon the birth of such heir (answering the description of the heirs named in the instrument creating the gift) the estate belonged to the donee in fee simple absolute, at least for the purposes of disposition. If such heir were not so born, then, at the death of the donee the estate returned to the donor or his heirs. To defeat this construction the Statute of Westminster 2, 13 Edw. 1, known as the statute de donis conditionalibus was passed. This statute, de donis (in relation to con- ditional gifts), was interpreted to command that the gifts of the kind described should vest an estate of inheritance in the donee and his heirs, special or general, and that the estate must descend to the heirs accord- ing to the terms of the gift, notwithstanding any eSort of an ancestor to * An estate tail in personal property could not be created, and if attempted, the first taker took an absolute estate. Patterson v. Ellis, 11 Wend. 259; Norris v. Beyea, 13 N. Y. 280, 282. III. ESTATES TAIL ABOLISHED; REMAINDERS THEREON. 85 divert the same.* The estate so coming to any tenant in respect to the manner or scope of its enjoyment by occupation did not differ from an estate in fee simple; but in theory no alienation, either by any tenant or through any act of his, could disturb the rights of those subsequently entitled. Each tenant might, with impunity, commit waste, and the estates of dower or curtesy might arise upon a tenant's death. Hence, an estate tail in no wise diflfered from an estate in fee, save that it was perpetuated from one taker to another by force of the instrument of gift. The tenant was not obliged to discharge incumbrances nor to keep down interest. 4 Kent's Com. p. *12. *These estates "were very conducive to the security and power of the great landed proprietors and their families, but very injurious to the industry and commerce of the nation," and in the Taltarum Case, 13 Edw. IV, the court held thaf'an estate tail might be cut off and barred by a common recovery; hence, it resulted that a common recovery removed all limitations upon an estate tail, and an absolute, unfettered, pure fee simple passed as the legal effect and operation of a common recovery, and also by fine the tenant in tail could bar his issue, but not subsequent remainders." Kent's Com. vol. 4, pp. 12, 14. (On the subject of conditional fees as here understood, see, Kent's Com. vol. 4, pp. *H-13; and of Fees Tail, vol. 4, pp.* 13-31.) IV. FREEHOLDS. Real Prop. L., sec. 23. Freeholds ; chattels real ; chattel interests. " Estates of inheritance and for life shall continue to be termed estates of freehold ; estates for years are chattels real ; and estates at will or by sufferance continue to be chattel interests but not liable as such to sale on execution. Sec. 24. When estates for life of third person is freehold, when chat- tel real. " An estate for the life of a third person, whether limited to heirs or otherwise, shall be deemed a freehold only during the life of the grantee or devisee ; after his death it shall be deemed a chattel real." 1 R. S., 733, sec. 5, Banks's 9tli ed., p. 1789, repealed by Real Prop. L. Substan- tially the same. 1 R. S., 732, sec. 6, Banks's 9tli ed., p. 1789, repealed by Real Prop. L. Substan- tially the same. ExPLANATOBY NOTE TO SECTIONS 23, 24:.-Freeholds. An estate in fee simple is always a freehold ; an estate for-life is always a freehold during the life of the tenant ; and if it be for the life of another, the estate after the death of the first tenant is a chattel real ; an estate for years is also a chattel real, and an estate at will or by sufferance is a chattel interest. Estates of freehold, at common law, and even now, carry certain privi- leges and capacities to the owner of them, and require certain formali- ties in alienation. The tenant was called a freeholder because he might maintain possession against his lord, and for this reason liberum tene menium, frank tenement or freehold, was a holding both of dignity and profit. A freeholder became a member of the County Court, was enti- tled to be summoned on juries in the King's Court, and could vote at the election of a knight of the shire.* Grreenleaf's Cruise on Real Prop. vol. 1, p. 48. , Such an estate could only be created by a livery of seizin (delivery of possession by a ceremony similar to the investiture of the feudal law). So, at present, freehold estates can only be alienated in fee by grant in the special manner prescribed by statute. Real Prop. L., sees. 205- 234. *The tenant became a suitor of the courts, and the judge in the capacity of a juror ; he was entitled to vote for members of parliament, and defend his title to the land ; as owner of the immediate freehold, he was a necessary tenant to the prcecipe in a real action, and he had a right to call in the aid of the reversioner or remainderman, when the inheritance was demanded. These rights gave him importance and dignity as a freeholder and freeman." Kent's Com. vol. 4, p. *34. (86) V. ESTATES OP INHERITANCE. For discussion of estates of inheritance see ante, p. 80. VI. ESTATES FOE LIFE. An estate for life is an interest in land that may continue for the life of tne person owning it, or for the life of another. Kent's Com. 4, p. *26. Such an estate may arise by agreement of the parties, and in that case is called a conventional estate. Such are estates by grant or will. It may also arise by operation of law and in that case it is called a legal estate. Such are estates by dower, curtesy or descent.* Kent's Com. vol. 4, *24:. Except incidentally to illustrate the statutes and principles of the law here treated, this work does not include a review of the decisions relating to estates created by grant, or lease, although cases relating • thereto are given when pertinent to any subject here treated, and the statutes relating to Chattels Real are given at p. 225 et seq. The following decisions relate to the question whether estates in fee or for life are created, to the rights and duties of the life tenant, and to estates arising from dowerf and curtesy.f I. WHETHER AN ESTATE IS IN FEE OR FOR LIFE. 1. RULE IN SHELLEY'S CASE, p. 87. 2. EFFECT OF POWERS IN CREATING A FEE, p. 92. 1. POWER OF SALE AND DISPOSITION, p. 98. 3. POWER TO USB OR CONSUME THE PRINCIPAIi, p. 106. 3. POWER TO USE PRINCIPAL FOR SUPPORT, 111. 3. PRECATORY CLAUSES, p. 113. ' i. REPUGNANT LIMITATIONS, p. 116. 5. CHARGE OF LEGACY ON DEVISEE, p. 129. 6. ESTATE ENLARGED TO FEE ON CONDITION, p. 129. 1. RULE IN SHELLEY'S CASE. Real Prop. L., sec. 44 (L. 1896, ch. 547 ; ch. 46 Gen. L.). When heirs of life tenant take as purchasers. "Where a remainder shall be * See Real Property Law, sees. 284, 285. fWhile the subjects of "Dower" and "Curtesy" are not within the general pur- pose of this book, they are so connected with it as to make necessary their inclusioc. (87) 88 VI. ESTATES FOR LIFE. 1. RULE IN SHELLEY'S CASE. limited to the heirs, or heirs of the body, of a person to whom a life estate in the same premises is given, the persons who, on the termina- tion of the life estate, are the heirs, or heirs of the body, of such tenant for life, shall take as purchasers, by virtue of the remainder so limited to them." 1 R. 8. 735, sec. 28, Banks's 9th ed., 1793, repealed by Real Prop. L. Substantially the same. The term " heirs" or other words of inheritance are not requisite to create or con- vey an estate in fee. " Real Prop. L. , sec. 305 (1 R. S. 748, sees. 1 and 3 repealed by it .) Explanatory note to sec. 4-i. — This section is intended to abol- ish the rule "in Shelley's case." Tiie following is from the Eeviser's notes to section 28 (present sec. 44), 3 E. S. 575 (2d ed.): Sec. 28 E. S. " This section in introduced to abolish a technical rule, commonly described by lawyers as the rule 'in Shelley's case.' The terms of this rule are ' that when the ancestor, by any gift or convey- ance, takes an estate of freehold, and in the same gift or conveyance an estate is limited mediately or immediately to his heirs, or the heirs of his body, that the words heirs, etc., are always words of limitation of the estate, and not words of purchase.' Shelley's case, 1 Eep. 9. In plain terms, the ancestor takes the whole estate, and the heirs, if they take at all, can take only by descent, contrary, it is admitted, to the • natural meaning of the words and the clear intent of the grantor. That we may judge of the propriety of retaining this rule, it is proper to at- tend to the reasons given for its introduction. We are told that if the heirs were to take as purchasers, these consequences would follow : 1. That the lord would be deprived of the wardship and marriage of the heir. 2. That the remainder being contingent, the fee would be in abey- ance during the life of the ancestor. 3. That, as a necessary consequence of the abeyance of the fee, its alienation during the continuance of the life estate would be suspended. The first of these reasons is plainly not applicable in this state, where the feudal incidents of wardship and marriage do not exist, and as we have already shown, never have existed ; and of the second and third reasons, it may be remarked, that if valid, they prove that contingent remainders, secondary uses and executory devises ought never to have been allowed, and should at once be abolished ; for the necessary effect of every species of contingent limitation, whether to the "heirs" of the first taker, or to strangers, is to place the fee in abeyance and suspend its alienation until the contingency happens. * * * Whatever reasons may have existed for the original adoption of the I. WHETHER AN ESTATE IS IN FEE OR FOR LIFE. 89 1. RULE IN SHELLEY'S CASE. rule in Shelley's case, a few observations will show that it ought now to be regarded as purely arbitrary and technical. Nor can any other motive for preserving it be stated, except that it may remain as one of the subjects on which the ingenuity of the bar is to be exercised at the •expense of suitors. The rule does not apply unless the word 'heirs' is \ised, although the terms actually employed are identical in meaning. Thus, if the grant be to the father for life, remainder to the issue of his body, the remainder is good, and the father has a life estate only ; but sub- stitute ' heirs ' for issue, you give him a fee. Again, the estate of the ancestor must be a freehold, for if the limitation to the heirs be on a term of years, it is valid. Thus, if the estate be given to the father for one hundred years, if he should so long live, and upon his death to his heirs, the heirs take as purchasers, and it is out of the power of the father to affect their rights. Yet it is obvious that the interest of the father is in fact an estate for life, and that the term of years is onlv in- troduced to evade the operation of the rule. In short, the application of the rule, with the aid of a tolerably skillful conveyancer, may always be evaded ; and its only practical operation is to defeat the intentions of those who are without sufBcient advice and ignorant of the force of technical language." The following is from Kent's Com. vol. IV, pp. *2t5-216 : "In Shelley's case, the rule was stated, on the authority of several cases in the Tear Books, to be ' that when the ancestor, by any gift of conveyance, taketh an es- tate of freehold, and in the same gift or conveyance an estate is limited, either me- diately or immediately, to his heirs, in fee or in tail, the heirs are words of limitation of the estate, and not words of purchase. Mr. Preston, in his elaborate essa}' on the rule, gives us, among several definitions, one of his own, -which appears to be full and accurate. ' When a person takes an estate of freehold, legally or equitably, under a deed, will or other writing, and in the same instrument there is a limitation byway of remainder, either with or without the interposition of another estate, of an inter- est of the same legal or equitable quality, to his heirs, or heirs of his body, as a class of persons to take in succession, from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate. The word lieirs, or A«i>s of the body, create a remainder in fee, or in tail, which the law, to prevent an abeyance, vests in the ancestor, who is tenant for life, and by the conjunction of the two estates he be- comes tenant in fee or in tail; and whether the ancestor takes the freehold by express limitation, or by resulting \ise, or by implication of law; in either case the subsequent remainder to his heirs unites with, and is executed on, his estate for life. Thus, where A. was seized in fee, and covenanted to stand seized to the use of his heir, male, it was held that, as the use during his life was undisposed of, it of course re- mained in him for life by implication, and the subsequent limitation to his heirs at- tached to him. The cases from the Year Books, as cited in Shelley's case, are40 Edw.lll, 38 Bdw. Ill, 24 Edw. Ill, 27 Edw. Ill; and Mr. Preston gives at large a translation of the first of these cases, as being one precisely in point in favor of the- rule. Sir William Blackstone, in his opinion in the case of Perrin v. Blake, relies on a still earlier case, 12 9C* VI. ESTATES FOR LIFE. 1. RULE IN SHELLEY'S CASE. in 18 Bdw. 11, as establishing the same rule. It has certainly the pretension of liigh antiquity, and it was not only recognized by the court in the case of Shelley, but it was repeated by Lord Ooke, in his Institutes, as a clear and undisputed rule of law, and it was laid down as such in the great abridgments of Fitzherbert and Rolle. Tlie rule is equally applicable to conveyances by deed, and to limitation in wills whenever the limitation gives the legal, and not the mere trust or equitable title. But there is more latitude of construction allowed in the case of wills, in furtherance of the testator's intention; and the rule seems to have been considered as of more ab- solute control in its application to deeds. When the rule applies, the ancestor has the power of alienation, for he has the inheritance in him; and when it does not apply, the children or other relations, under the denomination of heirs, have an original title in their own right, and as purchasers by that name. The policy of the rule was that no person should be permitted to raise in another an estate which was essentially an estate of inheritance, and at the same time make the heirs of that person pur- chasers.' ' The text then states to what extent the rule was observed at that time in several states, and as to New York, states : "In New York the rule, according to theEnglish view of it, was considered, in the case of Brant v. Gelston, to be of binding authority; and so it continued to b& until the revisers lately recommended its abolition, as being a rule 'purely arbitrary and technical,' and calculated to defeat the intentions of those who are igno- rant of technical language. The New York Revised Statutes have accordingly de- clared that '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 persons 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.' The abolition of the rule applies equally to deeds and wills, and in its practical operation it will, in cases where the rule would otherwise have ap- plied, change estates in fee into contingent remainders. It sacrifices the paramount intention in all cases, and makes the heirs, instead of the ancestor, the stirpes or ter- minus from which the posterity of heirs is to be adduced. It will tie up property' from alienation during the lifetime of the first taker, and the minority of his heirs. But this, it may perhaps be presumed, was the actual intention of the party, in every case in which he creates an express estate for life in the first taker, for otherwise he would not have so limited it. It is just to allow individuals the liberty to make strict settlements of their property, in their own discretion, provided there be nothing in such dispositions of it affecting the rights of others, nor inconsistent with public policy, or tlie settled principles of law. But this liberty of modifying at pleasure the trans- mission of property is in many respects controlled, as in the instance of a devise to a charity, or to aliens, or as to the creation of estates tail; and the rule in Shelley's case only operated as a check of the same kind, and to a very moderate degree. Under the existence of the rule, land might be bound up from circulation for a life, and twenty- one years afterwards, only the settler was required to use a little more explicitness of intention, and a more specific provision. The abolition of the rule facilitates such settlements, though it does not enlarge the individual capacity to make them." Kent's Com. vol. 4, pp. *332-333.* ''The curious reader may be interested in the note appended by Chancellor Kent to this subject: " The juridical scholar on whom his great master, Coke, has bestowed some por- tion of the 'gladsofne light of jurisprudence,' will scarcely be able to withhold an in- voluntary sigh as he casts a retrospective glance over the piles of learning devoted to I. WHETHER AN ESTATE IS IN FEE OE FOE LIFE. 91 1. RULE IN SHELLEY'S CASE. destruction by an edict as sweeping and unrelenting as the torch of Omar. He must bid adieu forever to the renowned discussions in Shelley's case, which were so vehe- ment and so protracted as to rouse the sceptre of the haughty Elizabeth. He may equally take leave of the multiplied specimens of profound logic, skillful criticism and refined distinctions which pervade the varied cases in law and equity, from those of Shelley and Archer, down to the direct collision between the courts of law and equity, in the time of Lord Hardwicke. He will have no more concern with the pow- erful and animated discussions in Perrin v. Blake, which awakened all tliat was noble and illustrious in talent and endowment, through every precinct of Westminster Hall. He will have occasion no longer, in pursuit of tlie learning of that case, to tread the clear and bright paths illuminated by Sir William Blackstone's illustrations, or to study and admire the spirited and ingenious dissertation of Hargrave, the compre- hensive and profound disquisition of Pearne, the acute and analytical essay of Pres- ton, the neat and orderly abridgment of Cruise, and the severe and piercing criti- cisms of Reeve. What I have, therefore, written on this subject, may be considered so far as my native state is concerned, as a humble monument to the memory of departed learning." Kent's Com. vol. 4, p. 333, note la. Gases relating to the rule in Shelley's case. Where lands are devised by will which took efEect prior to the Eevised Statutes, and there are no words of inheritance, the devisee takes a life estate only. Olmstead v. Ohnstead, 4 N. Y. 56 ; digested p. 1606. A testator, before the Revised Statutes, devised a lot of land to his wife during her widowhood, and on her death to be " equally divided " between his two sons, and there were no words of inheritance in the will. Construction : The two sons took a life estate only. Edwards v. Bishop, 4 N. Y. 61 ; digested p. 539. Construction of " I give the use of " lots " to my grandson and then to his child or children as the other real estate is given," viz.: to testator's grandson with power of disposal to latter's children or grandchildren, and for want of the same, the estate to descend to testator's son and his heirs. Grandson took a life estate with remainder in fee to his children or grandchildren, with executory limitation over to testator's son. Baker V. Lorillard, 4 K Y. 257. By a will which took effect before the rule in Shelley's case was abolished by the Eevised Statutes, lands were devised to 0. H. " to hold during her life, and then to descend to the heirs of her body and their heirs and assigns forever." Construction : The devisee, under our statute abolishing estates tail, took an estate in fee in the premises. Brown v. Lyon, 6 K Y. 419. 92 VI. ESTATES FOB LIFE. a. EFFECT OF POWERS IN CREATING A PEE. ^ Where the introductoiy clause in a will shows that the testator de- signed to dispose of his whole estate, a subsequent devise of lands without words of perpetuity, may be held to convey the fee. But this will not be the effect unless the subsequent parts of the will confirm such an intention in the testator. Will made before the Ee- vised Statutes. Vanderzee v. Vanderzee, 86 N. Y. 231. " If the will of Anson Gary had taken effect previous to the first of January, 1830, Albert G. Gary would have taken under the rule in Shelley's case a fee simple in the land in question, but not having taken effect until after that time, the devise is subject to the provisions of the Eevised Statutes, and under them Albert G. Gary took a life estate only in the land, and his heirs took the remainder as purchasers. 1 R. S. 725, sec. 28 ". Barber v. Gary, 11 K Y. 401. Since the abrogation of the rule in Shelley's case, and the E. S., a grant to " A. for life and after his decease to his heirs and assigns for- ever," gives to his children a vested interest therein, although liable to be defeated wholly or in part by his death before his father, or the subsequent birth of other children. Moore v. LitteJ, 41 K Y. 66, aff'g 40 Barb. 488, digested p. 298. Devise without words of limitation before Eevised Statutes carried a fee if such was the intent. Provoost v. Galyer, 62 N. Y. 545; digested p. 1610. The rule in Shelley's case is not applicable where the estate of the iirst taker is equitable and that of the remaindermen legal Smith v. Scholiz, 68 N. Y. 41. The rule is applied only to the first taker. Hennessey v. Paiterson, 85 N. Y. 91 ; digested p 321. For further decisions under this title, see Craine v. Wright, 114 N. T. 307; Camp- bell V. Rawdon, 18 id. 412. Where a testator by will, after giving to his wife during her widowhood the income and profits of certain lands, devised the latter to R., Ms daughter, and tlie heirs of her iody forever, from and after the decease or remarriage of the wife, yriih. a, WmiiaXion over to the children of one N. in case R. died without issue. Seld, that R.'s interest under the will was not a mere life estate, with remainder to her issue, but a fee sim- ple. Grout V. Townsend, 2 Hill, 554 ; aff'g 2 Denio, 336. 3. EFFECT OF POWERS IN CREATING A FEE.* L. 1896, oh. 547 (ch. 46 Gen'l L.) (in effect Oct. 1, 1896), sec. 129. When estate for life or years is changed into a fee. "Where an abso- lute power of disposition, not accompanied by a trust, is given to the owner of a particular estate for life or for years, such estate is changed into a fee absolute in respect to the rights of creditors, purchasers and *See Powers, post, p. 955. I. WHETHER AN ESTATE IS IN FEE OR FOR LIFE. 9? 5. EFFECT OF POWERS IN CREATING A FEE. encumbrancers, but subject to any future estate limited tbereon, in case the power of absolute disposition is not executed, and the property is not sold for the satisfaction of debts." 1 14. S. 733, sec. 81. In effect Jan. 1, 1830, repealed by L. 1896, ch. 547, sec. 300. L. 1896, ch. 547 (ch. 46 Gen'l L.) (in effect Oct 1, 1896), sec. 130. Certain powers create a fee. "Whei'e a like power of disposition is given to a person to whom no particular estate is limited, such person also takes a fee, subject to any future estates that may be limited thereon, but absolute in respect to creditors, purchasers and encumbrancers. 1 R. 8. 732, sec. 83. In effect Jan. 1, 1830, repealed by L. 1896, ch. 547, sec. 300. L. 1896, ch. 547 (ch. 46 Gen'l L.) (in effect Oct. 1, 1896), sec. 131. When grantee of power has absolute fee. "Where such a power of dis- position is given, and no remainder is limited on the estate of the gran- tee of the power, such grantee is entitled to an absolute fee." 1 R. S. 733, sec. 83. In effect Jan. 1, 1830, repealed by L. 1896, ch. 547, sec. 300. L. 1896, ch. 547 (ch. 46 Gen'l L.) (in effect Oct. 1, 1896), sec. 132. Effect of power to devise in certain cases. "Where a general and bene- ficial power to devise the inheritance is given to a tenant for life, or for years, such tenant is deemed to possess an absolute power of disposition within the meaning of and subject to the provisions of the last three sections." 1 R. S. 733, sec. 84. In effect Jan. 1, 1830, repealed by L. 1896, ch. 547, sec. 300. L. 1896, ch. 547 (ch. 46 Gen'l L.) (in effect Oct. 1, 1896) sec. 133. When power of disposition absolute. "Every power of disposition by means of which the grantee is enabled, in his lifetime, to dispose of the entire fee for his own benefit, is deemed absolute." 1 R. S. 733, sec. 85. In effect Jan. 1, 1830, repealed by L. 1896, ch. 547, sec. 300. L. 1896, ch. 547 (oh. 46 Gen'l L.) (in effect Oct. 1, 1896), sec. 134. Power subject to condition. "A general and beneficial power may be created subject to a condition precedent or subsequent and until the power become absolutely vested it is not subject to any provision of the last four sections." 1. POWER OF SALE AND DISPOSITION. A testator devised all his estate, real and personal, to his wife and daughter, in equal shares, and gave each a power of testamentary dis- position, unaffected by any trust or limitation ; but imposed the restric- tion that, in case either died intestate and without issue, whatever might remain of the property was devised to the survivor. Construction : A joint conveyance by the devisees o£ land so devised, with a cove- 94 VI. ESTATES FOR LIFE. 2. EFFECT OF POWERS IN CREATING A FEE. 1. POWER OF SALE AND DISPOSITION. naat of warranty, passed all the title of tte grantors, either vested or contingent ; such title was good, and the purchaser was bound to accept it; and no execution of the power of testamentary disposition, made after the conveyance, could have effect on the estate conveyed. Freeborn v. Wagner, 2 Abb. Ct. App. Dec. 175. JFrom opinion.— "By sec. 84 of 1 R. S., title 'Of Powers' (p. 733), where a general and beneficial power to devi<:f^ the inheritance shall be given to a tenant for life * * * such tenant fUall be deemed to possess an absolute power of disposition, within the meaning and subject to the provisions of the three last preceding sections. This power Is both general and beneficial. It is, therefore, an iibsohite power of disposition within section 81; which says that where such power of disposition is given to the owner of a particular estate for life, or years, such estate shall be changed into a fee, absolute in respect to the rights of creditors and purchasers, but subject to any future estates limited thereon in case the power should not be executed, or the lands should iiut be sold for the satisfaction of debts." (At pp. 182-3 ; see, also, opinion at p. 178.) A will of personal property took effect after the Eevised Statutes. There was an absolute bequest of personalty, and then provision that it should go over by remainder in the event of the first legatee dying under age ; the remainder was held good and the case was distinguished from those in which the limitation over was preceded by an absolute power of disposition in the first taker, the court saying : " In such cases a further limitation was clearly hostile to the nature and inten- tion of the gift." JSTorris v. Beyea, 13 K Y. 273. There was a devise and bequest of realty and personalty to B., daughter, her heirs and assigns forever, and in the event of her dying without issue a legacy was given to C, and a guardian was appointed for the daughter during her minority and directed to apply such part of the estate as he should deem necessary for her maintenance and education and support. The provision for the legacy was held good upon the ground that the power of disposition was limited to a special purpose and dur- ing a definite period, but it was admitted that an absolute power of disposition would have been repugnant to the bequest of the legacy. Trustees, etc., v. Kellogg, 16 K Y. 83. By the will the absolute power of disposition is given to the execu- tors, and if no other person has any interest in its execution and it be construed as unaccompanied by any trust, it is a beneficial power in them and they take an absolute fee. (Sees. 79, 82, 83, 1 E. S. 732-3.) Kinnier v. Rogers, 42 N. Y. 534. A devise of lands, with power of absolute disposal for the use of the devisee, without anything to qualify the words, is a gift in fee simple. I. "WHETHER AN ESTATE IS IK FEE OR FOR LIFE. 95 2. EFFECT OF POWERS IN CREATING A FEE. 1. POWER OF SALE AND DISPOSITION. The word " estate " used in a devise refers to the testator's title, and indicates an intent to give all the estate or interest in the property which the testator can dispose of by will, unless by express terms or by necessary implication it appear, that it was used as descriptive of, or referring to the corpus of the property, but it may be controlled by other portions of the will. After a devise, in fee, the will contained a devise of other "real estate " to the same devisee for her own personal and independent use and maintenance, with full power to sell or otherwise dispose of the same, in part or in whole, if she should require it or deem it expedient, and upon her death a devise over to a religious society. Construction : By the last devise, the devisee took a life estate only, with a condi- tional power of disposal annexed, which did not operate to enlarge the estate to a fee, and only authorized a disposition by the devisee, by a conveyance which should take eEEect during her lifetime, not by will ; also the limitation over was not repugnant to this devise, and was valid. Terry v. Wiggins, 47 K Y. 512 ; 2 Lans. 272. From opinion. — "The statutes of this state have to some extent modified the rigor and relaxed some of the technical rules of the common law in respect to estates. It is provided, among other things, that, where an absolute power of disposition, not accompanied by any trust, shall be given to the owner of a particular estate for life or years, such estate shall be changed into a fee absolute in respect to creditors and purchasers, but subject to any future estates limited therein in case the power should not be executed or the lands sold for the satisfaction of debts (1 R. S. 732, sec. 81)." On same point see s. c. below, 2 Lans. 376. Will gave all property, real and personal, to daughter C, excepting sums necessary to pay certain legacies, after enumerating which it con- tained the clause: "All my remaining property * * * j give, devise and bequeath to my daughter 0. for her support and comfort, to be held and controlled by her, and at her death to pass to her heirs, and if she have no heirs, to be disposed of by her will, etc." Construction : Gift in first clause was qualified and limited by residuary clause, so that daughter took estate for life in lands of which testator died seized, with remainder to her issue living at her death, and with power in default of issue to appoint the fee by will, and, therefore, a conveyance by 0. and living children did not give an absolute title, as after-born children would take interest under the will. The personal estate of a testator will not be discharged from the pay- 96 VI. ESTATES FOR LIFE. 2. EFFECT OF POWERS IN CREATING A FEE. 1. POWEE OP SALE AND DISPOSITION. ment of debts, unless it clearly appears by the will that he so intended. This will not be inferred simply from the fact that authority is given to sell all or some part of the real estate for the payment of- debts, especially in a case where no disposition is made of the personalty. Vernon v. Vernon, 53 N. Y. 351. There was a bequest to B., widow, of a sum of money during her life- or widowhood, with power to use so mucli of the principal as might be necessary for her support, with remainder to her children. The court sustained the validity of the gift and remainder on the ground that the power of disposition was not absolute, but limited and conditional. Judge Rapallo said th-at "the cases sustain the propo- sition that where an absolute power of disposal is given to the first legatee a remainder over is void for repugnancy, but they also recog- nize the principle that if the jus disponendi is conditional, the remain- der is not repugnant ; the power of disposition in the present case is only for a special purpose — the support of the widow." Smith v. Van Osirand, 64 K Y. 278. Life estate was not enlarged by power of sale. Ackerman v. Gorton, ,67 K Y. 62, digested p. 801. Direction that residuary estate be divided equally among children, the shares of the daughters "to be secured to them for their separate use during their natural lives", and in case of one dying without issue, so m\\ch of her portion "as may remain at the time of her * * * death" should revert to the surviving children subject to the right of each daughter to dispose of one-half of her share by will. By another clause the real estate was devised to the executors in trust, to sell nnd apply proceeds as will directed. By codicil, stated to be for the purpose of making clear any obscurity in title of children, the testator gave to each of his children an equal portion; to each son a portion absolute; to each daughter an estate for life, with remainder to ber lawful issue, subject to her right to dispose of one-half by will, and subject to tbe power in executors to sell and convey; and in case of a daughter's death without issue, such portion of her share as she had not disposed of by will to go to her brothers and sisters. Construction: The corpus of each daughter's share sbonld be kept entire, and she was only entitled to use the income thereof ; the power of disposal given daughter did not enlarge her estate during life; no trust was created in favor of executors and each daughter was entitled. I. WHETHER AN ESTATE IS IN FEE OR FOR LIFE, 97 a. EFFECT OF POWERS IN CREATING A FEE. 1. POWER OF SALE AND DISPOSITION. to have her share paid to her upon giving adequate security for the preservation of the corpus. Livingston v. Murray, 68 N. Y. 485, modify- ing 4 Hun, 619. There was a gift to B., wife, of real and personal estate with a gift over of the property or such portion " as may remain " after the death of B. The limitation over was repugnant to the power of disposition. Campbell v. Beaumont, 91 K Y. 464. There was a devise and bequest of real and personal property to B., daughter, but in case of her death, leaving no issue, before the death of his wife, then all the property, both real and personal that should be left by B., to his wife, her heirs and assigns forever. Although the language "shall be left" imported a power of disposition in the daughter, the remainder to the wife was valid. Wager v. Wager, 96 N. Y. 164. A valid executory devise can not, at common law, be limited after a fee, upon the contingency of the non-execution of an absolute power of disposition vested in the first taker,and such a limitation over is void. An absolute power of disposition annexed to a primary devise in fee is deemed conclusive of the existence in the devisee of an absolute estate It seems the rule is the same as to bequests of personal property. As to whether this rule of common law has been changed by the Eevised Statutes (1 E. S. 725, sees. 32, 33), qucere. F. died in in 1791, leaving a will by which he devised certain real estate to hia wife for life, remainder over to his son D., his heirs and assigns forever. He devised another parcel to his son H. A subse- quent clause of the will provided that if either of the testator's "two sons shall die seized of the estate hereinbefore bequeathed, or any part there- of, without lawful issue, that then the estate of him so dying seized hereby bequeathed shall descend to the other." After the death of the widow D, took possession of the parcel so devised to him; he died in- testate without issue, and without having conveyed or otherwise dis- posed of the land. Action of ejectment in which the plaintiff claimed title under H. Construction : The words "shall die seized of" imported an absolute power of dis- position in D.; therefore, the limitation over was void, and D. took an absolute title. Van Home v. Campbell, 100 N. Y. 287. The will of 0. gave his residuary estate to his wife M. "to be used and enjoyed and at her disposal during the term of her natural life." 13 98 VI. ESTATES FOR LIFE. 3. EFFECT OF POWERS IN CREATING A FEE. 1. POWER OP SALE AND DISPOSITION. One-third of said estate "that may remain" at the decease of his said wife, the testator gave to an adopted daughter during life; and the other two-thirds and the remainder of the one-third to four persons named, who were described as "the present heirs" of M. Held, that, upon the death of 0., his widow took a life estate with a limited power of dispo- sition during her life, for her use and enjoyment, and any interest in the other beneficiaries was dependent upon the contingency of the exer- cise by her of this power of disposition. Matter of Gager, 111 N. Y. 843. "It is contended further, on the part of the defendants, that, as the widow has full power to use so much of the principal of the estate as she might deem necessary for the support of herself and children, and as she has full power of sale, the testator meant her to have, dominion of the entire estate, and that her children should take what she did not use, and that such disposition confers upon her a fee; and the cases of Beaumont v. Beaumont, 91 N. Y. 474 ; Wager v. Wager, 96 id. 164, and Crane v. Wright, 114 id. 307, are cited to uphold this contention. These cases, as well as certain provisions of the Eevised Statutes (1 R S. 733, sees. 81, 83), would have been controlling if the testator had given his widow the absolute power to dispose of the estate for her sole benefit. But she was not solely interested in the estate. She was a trustee and was clothed with a power for the benefit of others as well as herself, and, therefore, she took no greater or other estate under the will than its terms gave her." Haynes v. Sherman, 111 N. Y. 433, 438. Where a will and codicil are plainly inconsistent, the latter must con- trol, to the extent necessary to give it full eflfect. Where a predominant purpose is apparent in a will, but a doubt afises as to the method devised to effect that purpose, the doubt will be so resolved as to accomplish the purpose, by presuming the testator in- tended a legal, not an illegal method. The will of W., after giving his personal properly to his wife "for- ever," gave his farm to his wife and two daughters, T. and H., "to occupy and dispose of as they may deem proper," with these provisions: That his wife and T. " have a comfortable home in the house, together with all the fuel, fruit and proceeds of the farm to which they will be entitled as joint owners," and that if H. should die without leaving a child, her share " to be equally shared by " his wife and T. The devise was made subject to certain legacies, which the testator directed his executors to pay " at or before the expiration of four years " after his death and that of his wife. A codicil which the testator declared therein was " to be taken as part " of his will, contained this provision: I. WHETHER AN ESTATE IS IN FEE OB FOE LIFE, 99 3. EFFECT OP POWERS IN CREATING A FEE. 1. POWER OF SALE AND DISPOSITION. "I, therefore, will and direct that all that may remain of the property of my wife * * * both real and personal, at her decease, be made over to and become the property of Gyrus Bray." His wife died before the testator ; she had no separate property. Construction : The words " all that may remain of the property of my wife " should be construed as meaning all that might remain of the property the tes- tator had provided for her use ; he either construed the will as giving her a life estate, with power to sell or intended by it and the gift over in the codicil, to effect that result ; and, upon the death of the testator, Bray took one-third of the real estate. Crozier v. Bray, 120 N. Y. 366. Afl'g 39 Hun, 121. Citing, on widow's estate, Taggart v. Murray, 53 N. Y. 233, 236; Norris v. Beyea, 13 id. 280, 284; Terry v. Wiggins, 47 id. 513; Wager v. Wager, 96 id. 164 ; Campbell v. Beaumont, 91 id. 464 ; Smith v. Bell, 6 Pet. 68 ; Colt v. Heard, 10 Hun, 189; Greyston v. Clark 41 id. 135; Wells v. Seeley, 47 id. 109 ; Leg- gett V. Firth, 53 id. 153. H., by her will gave to her husband all her property " in trust " for purposes thus stated : " to be by him held, enjoyed and disposed of as follows : * * * 1st To his own proper use, benefit and advantage during his natural life, meaning and intending that out of the said estate, its income, substance, profits and avails, my said husband may and shall derive his support in whole or part accordingly as said estate may be made available and my said husband may determine ; but it is my desire that as much of said estate or its profits or avails as my said husband shall die seized or possessed of, shall be by him left, secured and dis- posed of as to be devoted to the support and education of orphaned children, in such way and manner as in his judgment may best conser^^e this object." The testatrix then expressed a desire that her husband shall "make such gifts or mementoes in my name to such of my sur- viving relatives and friends as I have heretofore verbally named and requested of him." She appointed her husband sole executor, and con- ferred upon him " full power and authority * * * to bargain, sell and convey " any and all of the estate. Then followed this clause : " The trust hereby created is intended to confer such right and authority unqualified, as well as to authorize and empower my said executor and trustee to make, execute and deliver any such deed or conveyance as shall be needful and proper to fully carry out and complete any sale, transfer or encumbrance, and to use or invest the proceeds ;" also, that if any portion of the estate or its avails " be used by my said husband, such use shall be restricted to his personal wants and necessities." 100 VI. ESTATES FOR LIFE. 2. EFFECT OF POWERS IN CREATING A PEE. 1. POWER OP SALE AND DISPOSITION. In an action of ejectment plaintiff claimed under a deed of certain of the real estate sold under an execution against the husband. After such sale, the husband, as executor and trustee, sold said real estate to raise money to pay the debts of the testatrix. Construction : The trusts sought to be created by the will were void ; the husband took a life estate in the property {1 R. S. 728, sec. 47), with the right to use so much of the principal as might be required for his personal wants, but did not take an absolute fee. Terry v. Wiggins, 47 N. Y. 512 ; Smith v. Van Ostrand, 64 id. 278 ; Ackerman v. Gorton, 67 id. 63 ; Campbell v. Beaumont, 91 id. 464. The provisions of the Eevised Statutes (1 R. S. 732, sec. 84), turning an estate for life into a fee, " where an absolute power of disposition, not accompanied by a trust, shall be given to the owner," did not apply, as an absolute power of dis position was not given within the definition of that term stated in the said statutes (sec. 85) ; also, as to the remainder there was no valid dis- position thereof, and so, as to it, ths testatrix died intestate. . Also, a valid power of sale was given to the husband and was prop- erly executed; and, therefore, when he conveyed the real estate, any interest in the land which he had as life tenant, was destroyed, and the lien of the judgment and the title acquired by virtue of the sale on execution were subverted and the purchaser from the executor acquired a good title; also, a wrong motive on the part of the executor in mak- ing the sale, and the raisappropriation of the proceeds, would not defeat the purchaser's title. Bose v. Hatch, 125 N. Y. 427 : affi'g 55 Hun, 457. The will of F., after legacies to the testator's children and a gift to his wife "forever" of the residuary personalty, also a provision that in case the personalty was insufficient to pay the said legacies enough real estate should be sold for that purpose, contained this clause : " I also give, devise and bequeath to my wife B. all the rest and residue of my real estate, but on her decease the remainder thereof, if any, I give and devise to my said children or their heirs respectively, to b", divided in equal shares between them." Action for the specific performance of a contract for the purchase of land which formed part of the residu- ary real estate, title to which plaintiff claimed through the widow. Construction : The widow took only a life estate ; by necessary implication a bene- ficial power was conferred upon her to dispose of the residuary real estate, with a limitation over in case of her death without exercising OCT I. WHETHER AN ESTATE IS IN FEE OK FOE LIFE. I 1101,20 2. EFFECT OF POWERS IN CREATING A FEE. \fT LDIITATIOXS. Same will: The decree of the surrogate upon final settlement of the accounts of the executors contained a statement that the contingency of the death of X. without children related to her death at any time after, as well as before, the death of the testator, and that the gifts to her were for life only, The surrogate did not decide anything in regard to the payments to N., and he made no decree for further distribution of any portion of the moneys paid to her by the executors, or as to who might become entitled thereto upon her death. CJonstruction : The statement was nothing more than an expression of the surro- gate's opinion ; and so, it was not conclusive upon N. Washbon v. Cope, lil N. Y. 287, rev'g 67 Hun, 272. Where in a will there is a clear and certain devise of a fee, about which the testamentary intention is obvious and without ambiguity, the estate thus given will not be cut down or lessened by subsequent words which are ambiguous or of a doubtful meaning. The will of B. gave to his wife the use and occupation of two dwelling houses during life, and provided that " in case of the sale of either or both with her consent the income of the principal shall be paid to her ; "' he then devised said dwelling houses to two children, subject to the life occupancy of their mother, and also devised to them all of his other real estate subject to her dower right. By a subsequent clause it was pro- vided that in case of the death of both children without issue the prop- erty devised to them '■ and their issue " shall not pass to the branches of his own or his wife's family, but is "given, devised," etc., to a benefi- ciary named. Action for specific performance of a contract for the purchase of a portion of the real estate of which the testator died seized Aside from the two dwelling houses the testator's real estate consisted principally of a large tract of sandy and barren land on the sea shore from which he had been selling lots for summer homes, and which was only valuable for such purposes. Construction : The death without issue referred to in the devise over meant a death in the lifetime of the testator, and as the two children named survived the testator they took an absolute fee in all the lands subject to their mother's life estate and dower right Benson v. Corbin, 145 iST. Y. 351, affg 78 Hun, 202. Devisees took an absolute fee, unaffected by subsequent recommendation deroga- tory thereto. Fidd v. Mayor, 38 Hun, 590, afFd by 105 N. Y, 633. I. WHETHER AN ESTATE IS IN FEE OR FOR LIFE. 125 i. REPUGNANT LIMITATIONS. A testator, gave to his daughter, Sarah, a certain house and lot as therein stated, "to her own proper use and behoof forever, also the sum of $1,400, to be paid to her in annual installments of one hundred dollars, and interest on the whole sum un- paid, annually, until the whole of said bequest is paid, commencing one year next after my decease.'' By a subsequent clause of his will he provided: "It is hereby understood that Vta devises and bequests made, respectively, to my daughters, Elizabeth, Sarah and Louisa, are made, and are, for the absolute use, control of each of them during their natural lives, and after the decease of either of them then to their surviving children, respectively, according to law, as the said annual sums, devises and bequests may re- main in the hands and under the control of either of my executors, at the free election of either of my said daughters, and upon such terms as either of my daughters may make with such executors." Construction : The house and lot devised to the daughter, Sarah, passed to her in fee, and her surviving children took no interest therein upon her death under the provisions of the will. The words of the will, in the first item thereof above referred to, clearly indicated a disposition on the part of the testator to give the entire interest, use and benefit of this land absolutely to Sarah, and the subsequent provision relating to her surviving children was too ambiguous and uncertain in its terms to cut down to a life estate the estate. given to Sarah by the former provision of the will. OotJioui v. Sogers, 59 Hun, 97. Citing, Clarke v. Leupp, 88 N. Y. 228; Campbell v. Beaumont, 91 id. 464; Lambe v. Eames, L. R., 10 Eq., 267; Byrnes v. Stilwell, 103 N. Y. 460. A testator, by the fourth and fifth clauses of his will, devised certain real estate, separately, to his sons, P. and S. and also to his two daughters, in fee. In the seventh clause, after certain clear devises and bequests to other persons, was this recital and provision, viz.: "whereas my son P. to whom sundry bequests are made in the fore- going will, has unfortunately contracted habits of inebriation, and in consequence of which I fear he would squander or misuse the bequest to him made, I do therefore annul and make void this will, as to him, unless he reforms and continues a sober, industrious and moral man, for the space of two years after my decease, giving to- my executors satisfactory evidence and assurance of a thorough reformation. And therefore it is my will that the property so willed to him should be held in trust for him not to exceed three years after my decease, and if within that time such reforma- tion does not take place, I desire my said executors to divide his portion to such of my heirs as may seem to them most to need and deserve the same." The testator's son P. was one of the executors named in the will. Held, that the title to the estate devised to P. by the fourth and fifth clauses of the will was still in him, and w.a.s not defeated by the recital and statement in the seventh clause. Moore v. Moore, 47 Barb. 257 all'd by Ct. of Appeals; see 6 A. L. J. 173. Gift to wife absolute because limitation over was void. McLeans v. McDonald, 40 Barb. 534. Whether a devisee takes an absolute estate. Jackson v. Robins. 16 Johns. 537. When a wife takes a fee in the whole of the premises, instead of a life estate. Par- sons V. Best, 1 Sup. Ct., T. & C, 211 (4). When gift absolute and not cut down by subsequent clauses. Eermance v. Mead, 18 Abb. N. C. 90, digested p. 115. KoTB. — The testatm-'s intention governs to the exclusion of technical rules. 126 VI. ESTATES FOR LIFE. 4. REPUGNANT LIMITATIONS. The first cardinal rule is, that the intention of the testator must govern, and that intention must be gathered from the entire instrument, and extrinsic facts relating to the conditions that surround the testator and his family and the beneficiaries are not disregarded. Section 2, title 5, chapter 1, part 11 R. S., third volume, Banks's 7th ed., provides that "in the construction of every instrument creating or conveying, or authorizing the creation or conveyance of any estate or interest in lands, it shall be the duty of courts of justice to carry into effect the intent of the parties, so far as such intent can be collected from the whole interest, and is consistent with the rules of law." (See cases there cited.) See Real Prop. L., sec. 305. Defeating or abridging primary gifts. Intent to overrule or abridge the primary gift must be clear. Farnham v. Farnham, 53 Conn. 390; Sherburne v. Sischo, 143 Mass. 439; Snyder v. Baker, 7 Central, 351; 5 Mackey, 443; Crozier v. Bray, 130 N. Y. 366; but see Re Huntington, 103 id. 677; Patterson v. Read, 43 N J. Eq. 146. An estate in fee granted by will can not be cut down or limited by a subsequent clause unless it is as clear and decisive as the language of the clause which devises the estate. Thornhill v. Hall, 3 Clarke & Pin. 33; Rosebaum v. Rosebaum, 81 N. Y. 356, 359; Freeman v. Coyt, 96 id. 63, 68. In Terry v. "Wiggins, 47 N. Y. 513, Allen, J., said, "there is no repugnancy to a general devise to one person in terms which would ordinarily convey a whole estate and a subsequent provision giving the same estate to another person on tlie happening of the contingent event. " In Taggert v. Murray, 53 N. Y. 336, it is said that "subsequent clauses in the will are not incompatible with or repugnant to prior clauses in the same instrument, when they may take effect as qualification of the latter without defeating the intention of the testator in making his prior gift." S. P. Crozier v. Bray, 130 N. Y. 377. In Norris v. Beyea, 13 K. Y. 373, it is said that there is no repugnancy between the absolute gift of the whole estate in fee and a limitation over in the event of the first devisee dying under age and without issue; and in Thornhill v. Hall, 3 Clark & Fin. 32, it is said, it is a rule in construing written instruments that when an interest is given in the first clause in clear and decisive terms, such interest may not be taken away or modified by raising a doubt upon the extent and meaning of the subsequent clause nor by any inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the previous clause. The plain intention of the testator will control the legal operation of words, how- ever technical. Williams on Executors, 936, 938; and the court will give effect to the devisor's general intention, although they may thereby defeat a particular devise. Bean v. Holley, 5 T. R. 5; Smith v. Bell, 6 Pet. 68; Hoppock v. Tucker, 59 N. Y. 308; Van Home v. Campbell, 100 id. 318. In order to lead to the rejection of any provision on account of repugnancy, the in- consistency must be irreconcilable. Van Nostrand v. Moore, 53 N. Y. 13; Trustees of Auburn Seminary v. Kellogg, 16 id. 83; Van Vechten v. Keator, 63 id. 53; Van Home V. Campbell, 100 id. 317. "It has been truly said (3 Wils. 141) that cases on wills may guide us to the gen- eral rules of construction ; but, unless the case stated be in every respect strictly in point and agree in every instance, it will have little or no weight with the court, who always look upon the intention of the testator as the polar star to direct them in the construction of wills." Van Home v. Campbell, 100 N. Y. 315; Smith v Bell 6 Pet. 658. I. WHETHER AN ESTATE IS IN FEE OR FOR LIFE. 127 4. REPUGNANT LIMITATIONS. Intention is to be gathered from the ■whole instrument. Totum v. MoLellan, 50 Miss. 1; Phillips v. Davis, 93 N. Y. 199; Wood v. Mitcham, id. 382; Grossman v. Crossman, 193 Mass. 170; Slieriff v. Brown, 5 Mackay, 173, D. C; Norris v. Beyea, 13 N. Y. 283; Sweet v. Chase, 3 id. 79. 81. Bat when intent to limit the estate first given is unquestionable, it must prevail. Stowell V. Hastings, 4 N. Eng. 135; 59 Vt. 494; Mann v. Maun, 14 Johns. 9. Tlie rule upon this subject was stated by Lord Mansfield to be tliat "words of limitation shall operate as words of purchase, implications shall supply verbal omis- sions, the letter shall give way; every inaccuracy of grammar, every impropriety of terms shall be corrected by the general meaaing, if that be clear and manifest." Chap- man V. Broder, 3 Burrow, 1636. And it was stated in terms of similar import by the chancellor, in deciding the case of Poad v. Bergh, 10 Paige, 140, 152. He there declared that "the intention of the testator, so far as it is consistent with the rules of law, must govern in the construction of a will. When, therefore, the intention is apparent upon the whole will taken together, the court must give such a construction as to support the intent of the testator, even against strict grammatical rules. And to effectuate his evident intention, words and limitations may be transposed, supplied or rejected. Devise to B., with power of appointment and provision on failure to appoint for remainder over to children, does not enlarge the life estate to B, nor cut down the es- tate of inheritance. Yarnell's Appeal, 70 Pa. St. 835; Wetter v. Walker, 62 Ga. 143; Chase v. Salisbury, 73 Ind. 506. Specific devise to B., wife, for life is not enlarged because she is in another place referred to as residuary legatee. Miter v. Woodcock, 147 Mass. 613. See Barnes v. Boardman, 149 Mass. 106. 'W'het'h&r earlier or later provisions should prevail. There has been no little variation of ruling as to whether the testator's intention can be better ascertained by giving greater force to the first or subsequent provisions in a will, when they are inconsistent, although it is generally admitted that such consid- erations are only aids, and not inflexible rules. See cases, supra. The decisions that regard the prior clause as more influential are to the effect that such prior provision should prevail unless an intent to modify, change or overrule it clearly appears. Campbell v. Beaumont, 91 N. Y. 464, 467; Snyder v. Baker, 7 Cent. 351; 5 Mackay, 43. See Price v. Cole, 83 Va. 343; Ball v. Ball, 40 La. 384; Campbell v. Crater^ 96 N. C. 165; Sherburne v. Sischo, 143 Mass. 439. There are decisions that the subsequent clause would be regarded as the more in- fluential in construction. In the'absence of a clearly appearing intention to the contrary (Temple v. Sammis, 48 N. Y. Supr. Ct. 824), where the first devise imports an absolute estate to the first taker; and in the second clause a remainder is given to another, the first estate thereby becomes a life estate. Baxter v. Bowyer, 19 Ohio St. 490; Smith v. Meisee, 51 Ind. 419; Cowan v. Wells, 5 Lea, Tenn., 683; Hendershot v. Shields, 43 N. J- Eq. 317; Covert V. Sebern, 78 Iowa, 564; Ball v. Ball, 40 La. 384. See Wells v. Wells, 99 N. Y. 505; Heard v. Horton, 1 Denio, 165; Tyson v. Blake, 23 N. Y. 558; Buel v. Southwick, 70 id. 581; Woodman v. 'Madigan, 58 N. H. 6; Barnitz's Lessee v. Casey, 7 Cranch. 456; Everett v. Everett, 29 N. Y. 83. But there is no repugnancy in a general bequest or devise to one person, in lan- guage which would ordinarily convey the whole estate, and a subsequent provision that, upon a contingent event, the estate then given should be diverted and go over 128 VI. ESTATES FOR LIFE. i. REPUGNANT LIMITATIONS. to another person. Norris v. Beyea, 13 N. Y. 384; Tyson v. Blake, 23 id. 563; Ev- eritt V. Everitt, 39 id. 83, 83; McNaugliton v. McNaughton, 34 id. 301; Oxley v. Lane, 35 id. 348. In case of invincible repugnancy, the later clause must prevail. Heidlebaugh v. Wagner, 73 la. 601; 34 N. W. 439; Armstrong v. Crapo, 73 la. 604; LindenkoliI v. Just, 13 Cent. 397. Wliere an estate for life is given to B. in specified land, and he is made residuary legatee, he takes fee in the land. Davis v. Callahan, 78 Maine, 313. Absolute estate to B. wife, and a further provision that "it is my desire and wish that after my wife's death the property shall" go over, carries a remainder. Taylor v. Martin, 8 Cent. 139. In Chace v. Lamphere, 51 Hun, 534, it was thought to be the rule that the later clause must prevail over an earlier one. Goudie v. Johnston, 7 West. 589; 109 Ind. 437; Bailey V. Sanger, 6 West. 556; 108 Ind. 364; Allen v. Craft, 7 West. 516; 109 Ind. 476; Byrnes v. Stillwell, 5 Cent. 406; 8. c, 103 N. Y, 453; Hockstedler v. Hooksted- ler, 7 West. 75; 108 Ind. 506; Drinker's Estate, 13 Phila., Pa., 830. A right given to B. to live on land already devised in fee gives B. a life estate. Mayor, etc., of Huntington v. Mullens, 16 Lea, Tenn., 738. Devise to wife for life in fee simple, and, by another item, a devise of the same land to children, gives wife life estate and a remainder to the children. Vaughn v. Ebward, 75 Ga. 385. Bequests to sons, and, in another place, provision that if any die without heirs the survivors shall take, should be read together. Summers v. Smith, 137 III. 645.- The following cases hold that where the provisions of a will are so repugnant that they can not stand together, the later provision must prevail. Bradstreet v. Clarke, 13 Wend. 603; Van Nostrand v. Moore, 53 N. Y. 13; Brant v. Wilson, 8 Cow. 56. But the repugnancy or inconsistency by which the later clause may supersede the former one must be clear and explicit. Freeman v. Coit, 96 N. Y. 63, afE'g 37 Hun, 447. But the rule is only to apply if there are no facts to aid in a reconcilable construc- tion. Pierpont v. Patrick, 53 N. Y. 591. And where the real intention of the testator can not be ascertained. Covenhoven v. Shuler, 3 Paige, 133. Bee further on the subject of repugnant limitations : Chase v. Lamphere, 51 Hun, 534 ; 31 St. Rep. 676 ; Parsons v. Best, 1 Sup. Ct., T. & C, 311 ; Viele v. Keeler, 41 St. Rep. 187 ; rev'g 35 id. 904; McLeans v. MacDonald, 40 Barb. 534 ; Jackson V. Robins, 16 Johns. 537. Influence of codicil on construction of repugnant promsions. The provisions of a codicil to a will should have more influence than the language or provisions of the will itself, when the two are repugnant. Devise to B., daughter, of a base fee was held to be changed into a fee simple by the codicil, that provided that the value of a devise in a codicil should be deducted from the devise in fee base or conditionally. Jones v. Johnson, 67 Ga. 369. A codicil will not operate as a revocation beyond the clear import of its language, and an expressed intention to alter a will in one particular, negatives an intention to alter it any other respect. Wetmore v. Parker, 53 X. Y. 450 ; b. c, 7 Lans. 131. " If a will and codicil are plainly inconsistent the latter must control to the extent necessary to give it full effect, as the presumption in such a case is much stronger than in the case of a later clause in the same instrument." Crazier v. Bray, 130 N. Y. 375. I. ^VHETHER AN ESTATE IS IJT FEE OB FOR LIFE. 129 *. REPUGNANT LIMITATIONS. A codicil will not operate as a revocation of previous testamentary provisions be- yond the clear import of its language. An expressed intention to make a change in a will in one particular negatives by Implication an intention to alter it any other respect. Redfleld v. Redfleld, 126 N. Y, 466; afl'g 36 St. Rep. 787. A power of sale in a will is not revoked by a different disposition of the estate, made by a codicil unless there is some inconsistency between the exercise of the power of sale and some part of the codicil. Conover v. Hoffman, 1 Abb. Ct. App. Dec. 439 ^ aff'g 1 Bosw. 214. 5. CHARGE OF LEGACY ON DEVISE. Iq order to enlarge a devise without words of inheritance into a fee by implication by a legacy charged upon the devise, it was necessary that the payment of the legacy should be imposed upon the devisee as a personal duty in respect to the devise.' Mesich v. New, 7 IST. Y. 163. The will of N. devised to two grandsons, the parties hereto, certain real estate " jointly and in equal proportions * * * subject to the provisions hereinafter made and the bequests." After various bequests, which were made charges upon the real estate, the will provided in substance that in case of the death of either of the devisees without lawful iiwue the surviving devisee should taire the whole; upon his death, if without issue, the estate to go to the testator's grandchildren, the children of his son H. Construction : When the language of the will is explicit and unambiguous and gives an estate less than a fee, although it charges the devisee per- sonally with the payment of legacies, the payment thereof will not enlarge the estate to an absolute fee. Nellis v. Nellis, 99 N". Y. 505, citing, Mesick v. New, 7 id. 163. 6. ESTATE ENLARGED TO FEB ON CONDITION. Life estate, converted into an absolute estate on the condition that executors give life tenant a written testimonial of the capability, pru- dence and kindness of her husband. Viele v. Keeler, 129 N. Y. 190, digested p. 1220. ' See case in extenso post, p. 1607. 17 130 VL ESTATES FOB LIFE. II. RIGHTS AND DUTIES OP LIFE TENANT.' 1. ACCRETIONS TO THE CORPUS, p. 130. 2. CONTRACTS OF PURCHASE— PAYMENT OF, p. 133. , 3. CROPS, p. 133. I 4. DIVIDENDS, p. 133. 5. ENCROACHMENTS ON THE PRINCIPAL, p. 135. 6. EXPENSES OF THE ESTATE, p. 135. 7. FORFEITURE, p. 136. 8. IMPROVEMENTS, p. 136. 9. INCOMB-WHEN PAYMENT OF, BEGINS, p. 137. 10. INCOME— WHETHER LIFE TENANT TAKES NET. p. 137. 11. LIFE TENANT HOLDING OVER, p. 138. 13, MORTGAGES AND INTEREST THEREON, p. 138. 13. RENTS— APPORTIONMENT OF, p. 141. 14. TAXES AND ASSESSMENTS, p. 143. 15. WASTE, p. 145. 16. WHAT CONSTITUTES THE CORPUS, p. 148. 1. ACCRETIONS TO THE CORPUS. The will of G. gave to his executors $10,000 in trust, with direction.? to invest the same in certain specified interest-bearing obligations, to pay "the annual interest, income and dividends thereof" to J., a daughter of the testator, daring her life, and upon her death, leaving no issue, to divide '"the principal or capital sum aforesaid" among the testator's other children. With the consent of all parties interested, a portion of the fund was invested in securities other than those named, but all of them, by their terms, drew fixed rates of interest, payable annually. A sale of the securities after the death of the life tenant resulted in a surplus over the amount of the original investment. Settlement of the accounts of the trustees. Construction : The surplus was an accretion to the fund, and the remainderman was entitled thereto." The distinction between this case and those involving the division of gains or profits arising from investments in trade or corporate stock, pointed out It seems that even if the investment in unauthorized securities had not been assented to, they would have been subject to the same rules of division and distribution, as though made in accordance with the terms of the will. Matter of accounting of Qerry, 103 N. Y. 445. Note. — "If the will had required the trustees to invest in real estate, the rents, incomes and profits of which were made payable to the life tenant with remainder over, it can not be questioned but that any increase of the value of the land from natural causes would have been an accretion to the capital and inured to the benefit • ^ee Addenda. 'See, also, Matter of Proctor, 85 Hun, 572, and cases cited at p. 574 thereof. II. RIGHTS AND DUTIES OF LIFE TENANT. l31 1. ACCRETIONS TO THE CORPUS. of the remaindermen, Perry on Trusts, sec. 545, p. 486 ; Cogswell v. Cogswell, 2 Edw. Ch. 331, 240, and we can see no difference in principle between this case and the one supposed. The question here presented was up in the cases of Townsend v. U. S. Trust Co., S Redf. 223, and Whitney v. Pharis, 4 id. 180, before tlie surrogate of New York, and it was there held that an enhancement of the value of United States bonds held in trust went to the remaindermen, and not to the legatee for life. These decisions accord with our views." The will of B., who died in 1876, gave all of his estate to his execu- tors in trust; among other things to set apart and invest $30,000, or one- third of the appraised value of the personal estate, as his wife might elect, and pay over to her the " income, interest, profits and earnings thereof " during her life " half yearly, " and to divide the residue of the estate into six equal parts to be held upon certain specified trusts. The wife was appointed and acted as one of the executors and trustees and had the entire management and control of the estate. In 1878 the trus- tees purchased $40,000 of 17. S. four per cent bonds at a premium of one-fourth of one per cent.; the widow made no election until 1884, when she elected to have the $30,000 set apart. No particular item was set apart and no division of the residue into parts was made, but the whole estate was kept together. She took annually a sum equal to the interest at four per cent, on $30,000. It did not appear, however, that this was interest received upon the bonds. In 1888 said bonds were sold for $11,187.50 more than the amount paid for them. In an action, among other things to determine the rights of the parties under the will, the widow claimed three-fourths of that sum as the profit from the $30,- 000 invested for her. Construction: Untenable, having omitted to elect under the will until 1884, she could not claim that her election should relate back to the time the bonds were purchased, and there was no basis for the claim that the sum in controversy was the profit or income from any portion of the estate set apart for her benefit. The widow was not entitled to the difference between the sum re- ceived by her and the legal rate of interest on $30,000 in the absence of a finding that more than four per cent, was earned. Duclos v. Benner, 136 K Y. 560, reversing 62 Hun, 428. See Whittemore v. Beekmau, 3 Dem. 375; Reynal v. Thebaud, 3 Misc. 190; Scovel V. Roosevelt, 5 Redf. 131. The will of W. gave his residuary estate to his executors in trust, with power to sell and keep the same and its proceeds invested, the net rents, incomes and profits to be applied to the use of his wife during life. Upon her death the executors were directed to allot and set apar- four shares " each of the value and amount of twenty thousand dollars" 132 VI. ESTATES FOR LIFE. 1. ACCRETIONS TO THE CORPUS. one for the use of each of his four daughters or her descendants during life, etc., atid upon her death to divide and distribute such share " and the proceeds and investment thereof " among the descendants of the daughters, etc. The balance of the estate the testator gave to his two sons. The testator's widow died in 1878. The residuary estate was then invested in various securities. The executor did not, upon the death of the widow, pay over in money or allot and set apart insecurities the sum of $20,000 for either of the trust funds, but kept the residuary estate undivided, paying legal interest on that sum to the respective benefici- aries and paying the balance of the income to the sons. After the death of the widow the residuary estate largely increased in value, because of the appreciation of certain of the securities. Construction: The daughters were entitled to share pro rata in the increase; it was not necessary, in order that each should have the benefit of her propor- tion, to have a formal allotment made of the shares, but by the omis- sion of the executor to make a specific allotment he must be deemed to have made it proportionally in all the securities in which the estate was invested ; and each was entitled to a proportionate share of the income from and the principal of each security ; the power to continue sach in- vestments did not terminate upon the death of the widow, but I'emained until the trusts had been accomplished; for the purpose of determining each daughter's share, the value of the estate at the time of the death of the widow should be ascertained, and after making certain deductions, as required by the will, the proportion which the sum of $20,000 bears to the total value of the residue is the proportion of the securities each is entitled to. As between the daughters and those entitled in remainder, the for- mer were entitled to the benefit of the increase in incOme and principal. The receipt by the daughters of the interest paid to them was not, in the absence of evidence of knowledge on their part that their propor- tionate shares of the securities were earning more than enough to pay that amount, an acquiescence in the assumption that they were only entitled to interest, and the fact that for a number of years their brothers had re- ceived more, and tliey less, than they were entitled to, was not areason for continuing this injustice. Monson v. KY. S.<& T. Co., 140 N. Y. 498. See Dividends, p. 133. 2. CONTRACTS OF PURCHASE - PAYMENT OF. Real estate purchased by a testator and devised to tenants for life and to others in fee, had not been entirely paid for. Held, that the executors must pay the balance II. EIGHTS AND DUTIES OP LIFE TENANT. 133 2. CONTRACTS OF PURCHASE-PAYMENT OF. like any other debt, out of the personal estate; that the tenants for life could insist upon it; and that the title would have to be taken to the executors in trust for the purpose of the will. Cogswell v. Cogswell, 2 Edw. Ch. 231. See Matter of Pollock, 3 Redf. 100. 3. CROPS. Life tenant took crops of growing grass where land was worked on shares. Matter of Chamberlain, 140 N. Y. 390. 4. DIVIDENDS. The will of M. gave to his executors certain portions of his estate in trust " to receive the rents, interest and income," and to apply the net amounts thereof to the use of the testator's widow during her life, re- mainder to beneficiaries named. The testator died during the night of April 20, 1881. The trust fund included certain shares of stock of the P. K. R. Co. On April 14, 1881, a dividend of $25,000 was declared on this stock " payable May 2, 1881." On final accounting the executors charged themselves with this sum, treating the dividend as principal. Construction : No error ; as soon as the dividend was declared the owner of the shares was entitled to it, and it became part of his estate ; also the fact that it was made payable at a future time was immaterial ; and the divi- dends to which the life tenant was entitled as income were only those declared after the testator's death. Cogswell v. Cogswell, 2 Edw. Ch. 231, distinguished. See Brundage v. Brundage, 60 N. Y. 544. On the same principle, the widow was entitled to the whole of an extra dividend, declared after such death, although made from net earn- ings accumulated before that time; whenever earned, they were not profits until so declared. But as to interest on securities, see United States Trust Co. v. Tobias, 21 Abb. IT. C. 400. Same case. Prior to the death of the testator the P. R. R. Co. had accumulated a fund from earnings which were set aside as a sinking fund to pay out- standing obligations. Certain of the stockholders, including the execu- tors, entered into an agreement with another company for a sale of their stock to the company at $250 per share, the company to have the sink- ino' fund, and to pay said shareholders a ratable portion thereof, which was equivalent to $15.74 per share. In the account this was included as part of the price received and credited as principal. ■Construction : No error ; as it was received, not as a dividend, but as part of the price for which the stock was sold, and so belonged to the remainder- men. 134 VI. ESTATES FOR LIFE. 4. DIVIDENDS. The executors classed as income the value of certain options or privi- leges given to stockholders by various companies to subscribe for and take at par certain stocks and bonds. Construction : Error ; as the right accrued only on condition the estate chose to pur- chase or pay for the bonds or stocks, if the options were accepted the purchases operated to increase the capital or change its manner of in- vestment, and so the value of the options did not belong to the life tenant. Matter ofKernochan, lOi N. Y. 618. Consult cases considered in opinion. Also, Goldsmith v. Swift, 35 Hun, 201, and cases cited at p. 205 thereof ; also. Knight v. Lidford, 3 Dem. 88 ; Matter of Skillr man, 2 Con. 161. Husband by will gave to his wife " for her sole use, enjoyment and benefit, during her life, without restraint, deduction or interference in any manner whatsoever," one-half of the income of all his property, "of every kind," during her life; the remainder of the income, and the estate itself, after the death of the wife, he gave to his "legal heirs", subject tO' all taxes and charges against the estate; they were enjoined against at- tempting to interfere with the "full enjoyment, use, management and direction and disposition" of the estate. The wife was appointed sole executrix, with the direction that no bond or surety should be required of her, and she was authorized, in her discretion, to sell any portion of the property, if necessary, to pay the debts of the testator. At the time the will was made the testator had no children or other descendants; he owned, at the time of his death, stocks of certain railroad construction companies. Two of said companies constructed railroads, and upon their sale received land grants in payment ; another received in part pay- ment for a road constructed by it a certificate of indebtedness secured by a mortgage. Construction: The dividends received by the executrix upon said stocks were, under [the circumstances, properly treated as income; the intention of the tes- tator was not to create a technical trust, but that his property should re- main in specie for his wife's benefit, and subject to her uncontrolled management, and she was entitled to her share of whatever came into the estate from the property in the form in which he left it. Same case. The other member of testator's firm died a few days before him. In an action brought by a firm creditor for the protection and distribu- tion of the firm assets a receiver was appointed, who collected interest and dividends upon certain bonds and stocks. A judgment was rendered in said action settling the receiver's accounts and directing him to deliver over the assets to the widow, as executrix of the surviving partner. II. RIGHTS AND DUTIES OF LIFE TENANT. 135 4. DIVIDENDS, Construction: The judgment was not open to attack upon the accounting of the ex- ecuti'ix, and she was entitled to treat as income the money collected by the receiver as dividends and interest paid over to her. Matter of James, 146 N". Y. 78, aS'g 78 Hun, 121. By a clause in a will "to permit my said wife to take the interest or dividends on £3,000 British government three percent, stock during her natural life," she was entitled to the dividends which might be declared or become payable at any time after the testator's death. Cogswell v. Cogswell, 2 Bdw. Uh. 231. Stock dividends although unusually large and whether payable in stock or cash, go to the life tenant and not the remainderman (if declared or earned during life estate). Millen v, Ouorrard, 67 Ga. 284; s. c, 44 Am. Rep. 720, 6. ENCROACHMENTS ON THE PRINCIPAL. Encroachments on principal — seven per cent, interest on a fixed sum given to a life tenant and the sum not yielding that rate. Warner v, Durant, 76 N. Y. 133. When a part of the corpus may be appropriated for the support of minors. MaU ter ofMuller, 29 Hun, 418. Ely V. Dix, 118111. 477, holds, that when income is given for support of daughters for their lives, and support and education of their children, and corpus to grandchil- dren at majority, unimproved land should be sold to produce income. See McKemie V. Ashley, 145 Mass. 577; 5 N. Bng. 489. Pecuniary bequests in trust for certain persons for life, with remainder over. In case of deficiency in amount of estate, they must abate proportionally between life tenant and remainderman. Wood v. Ha/mmond, 16 R. I. 98. 6. EXPENSES OF THE ESTATE.' It was just to charge the costs of obtaining the construction of the will, upon the testator's estate, both real and personal, so that the ap- pellant's life interest, and the respondent's residuary estate, should each bear its proportion. Brown v. Brown, 41 N. Y. 507. When current charges were payable from income given to life tenant and not from the corpus. Woodward v. James, 115 N. Y. 346. Where a will gives the net income of the residue of the testator's estate to a party for life, the estate of the life tenant must bear the burden of the taxes and ordinary repairs and the payment of interest upon liens, if any exist. Wiloox v. Quiriby, 73 Hun, 534. Where a complainant claims to make the remainder in fee of an estate, vested in infants, liable for a debt accruing for professional services performed in relation to the rights of the father and mother in such estate, it is necessary, for his success, that he should affirmatively show the debt in question was contracted for the preservation of the inheritance of the children or for its permanent improvement. And where this is not shown on the hearing, the court will not indulge him with a reference to a mas- ter to inquire how far his services contributed to preserve and benefit the inheritance so that a portion, at least, of the debt might be charged thereon. Warner v. Hoffman, 4 Bdw. Ch. 381. ' See Expenses of Trustee, p. 600. 136 VI. ESTATES FOE LIFE. 7. FORFEITURE. L. 1896, ch. 547 (ch. 46 Gea'l L.) (in .effect Oct 1, 1896), sec. 212. Conveyance by tenant for life or years of greater estates t ban possessed. "A conveyance made by a tenant for life or years, of a greater estate than he possesses, or can lawfully convey, does not work a forfeiture of his estate, but passes to the grantee all the title, estate or interest which such tenant can lawfully convey." 1 R. 8. 739, sec. 145. In effect January 1, 1830, repealed by L. 1896, ch. 547, sec. 300. The denial, orally, by a tenant for life or years, of his landlord's title, and the assertion that he owns the lands in fee, and owes no rent for them, does not work a forfeiture of the term, nor authorize the landlord to maintain ejectment for the lands demised. De Lancey v. Oanong, 9 N. Y. 9. Mere words can never work a forfeiture of an estate for life or years. Default in the payment of the rent, where there is a covenant for its payment, and no condition in the lease providing for a re-entry in case of such default, does not work a forfeiture of the term. The words "yielding and rendering " in a lease, import a covenant, but not a condition, unless the landlord would otherwise be without remedy in case the rent should not be paid. DeLancey v. Oanong, 9 N. Y. 9 " His (a life tenant's) alienation, or attempted alienation, by feoff- ment, fine and recovery, or otherwise, of a greater estate than his own, could not forfeit the life estate, or determine it, because feoffment and livery of seizin are abolished here ; we have no fine and recovery ; and, finally, conveyances here by a tenant for life, although in form con- veying a greater estate than he possesses, do not work a forfeiture of his estate, but will pass to the grantee such estate, title and interest as he can lawfully convey. 1 R S. 738, sec. 1, p. 739, sees. 143, 145. Whatever effect the disclaimer of his landlord's title, by a tenant for years, in any possible form, by record or otherwise, may have had upon his rights as between him and his landlord, no disclaimer by John Jack- son (the life tenant), could operate to extinguish the life estate." Moore V. Litiel, 41 K Y. (66) 78. See Jackson v. Noyes, 11 J. R. 33; Jackson v. Vincent, 4 Wend. 633; 1 Washburn on Real Property, 92. See Grout v. Townsend, 3 Hill, 554, aff'g 2 Denio, 336. 8. IMPROVEMENTS. (See Addenda.) Life tenants can not compel executors, in the absence of any direction by the testa- tor, to use the residuary estate in improvements upon vacant lots. They can make leases for their lives and do anything to benefit themselves which does amount to waste, or is not prejudicial to the inheritance, without requiring the aid of the court. II. BIGHTS AND DUTIES OF LIFE TENANT. 137 8. IMPROVEMENTS. Lots with buildings upon them devised to tenants for life and then to others in fee. After the testator's death, ten feet of the fronts were taken off to widen the street, which destroyed the buildings. It was considered desirable to erect new ones. The court directed the executors to appropriate a sum out of the residuary personal estate to build them, reserving an interest of six per cent, upon the actual cost to be paid out of the rents, and a reasonable allowance for the depreciation and repair until the life estates should fall. Gogswell v. Cogswell, 3 Edw. Ch. 331. 9. INCOME— WHEN PAYMENT OF BEGINS. When payment of interest and income begins. Coohe v. Meeker, 36 N. Y. 15. See this subject fully treated at p. 1517. By another clause, the executors were to invest in stock a sum of money which "would produce an annual income of $1,000. And from time to time, as the same should become payable, permit his wife to take such income. Held, that the executors, in analogy to paying legacies, might take one year for the investment. Gogswell v. Cogswell, 3 Edw. Ch. 231. 30. INCOME — WHETHER LIFE TENANT TAKES NET.' Bequest to wife of life use of $10,000, with direction to executors to pay her the lawful interest of same semi-annually, and after her death said sum to pass to any heirs of wife by testator ; if none, then to his son, 0., with residue and remainder of his estate. Construction : There was a bequest of income of the specified sum and not of an annuity of $700, and taxes and expenses of trust were payable from income. Whitson v. Whitson, 53 N. Y. 479. Citing, Lansing v. Lansing, 1 Abb. N. S. 380 ; Pinckney v. Pinckney, 1 Bradf . 269 ; Lawrence v. Holden, 3 id. 143 ; Williams on Executors, 1389 ; Dayton on Sur- rogates, 419, 466. A testator, by the fourth clause of his will, gave to his wife the use and income of one-third part of certain real property in the city of New York during her natural life. By the sixth clause thereof he directed his executors to lease that portion of the real estate not theretofore bequeathed, being two-thirds of the property men- tioned in the fourth clause of the will, "from time to time to collect the rents and income thereof, to pay all taxes, expenses and repairs, and all other charges thereon, and to divide the residue of the income thereof, and pay the same in equal propor- tions to my five children (naming them) during their natural lives, and after their death I do devise and bequeath the same to their heirs in fee forever." Construction: The widow was entitled to one-third of the gross rents or profits of this property. The executors were required, out of the rents and income of the other two-thirds of the lands, to pay the taxes and repairs, and all other charges on the whole land and to divide the residue of the income thereof among the children. Starr v. Starr, 54 Hun. 300. Direction to invest estate on certain securities and pay income to life tenant, requires whole of income; no part can be kept back to make good premiums. 'See Mortgages and Interest thereon, p. 138; also. Taxes and Assessments, p. 148; also, Annuities, p. 1529. 18 138 VI. ESTATES FOii LIFE. 13. INCOME— WHETHER LIFE TENANT TAXES NET. "When bonds to be held to pay income to life tenant are with premiums, no por- tion of interest can be used for benefit of remainderman. Sliaw v. Cordis, 3 N. E. 439 ; 143 Mass. 448. "When life tenant entitled to full six per cent, interest. Eeighard's Appeal, 135 Pa. St. 638. 11. LIFE TENANT HOLDING OVER. A tenant for life or lives who continues in possession, without the consent of the owner, after the determination of the life estate, is not entitled to notice to quit. The statute, 1 E. S. 749, sec. 7, declares him a trespasser, and ejectment without previous notice to quit will lie. Livingston v. Tanner^ 14 K Y. 64. 13. MORTGAGES AND INTEREST THEREON. (See Addenda.) L. 1896, ch. 547 (ch. 46, Gen'l L., in effect Oct. 1, 1896), sec. 233. When remainderman may pay interest owed by life tenant. " When- ever real property held by any person for life is incumbered by mort- gage or other lien, the interest on which should be paid by the life tenant, and such life tenant neglects or refuses to pay such interest, the remainderman may pay such interest, and recover the amount thereof, together with interest thereon from the time of such payment, of the life tenant." L. 1894, ch. 815 (in effect April 1, 1S94), repealed by L. 1896, ch. 547, sec. 300, the same. Devise of real estate, and " all the rents, issues and profits thereof," to the testator's widow, for life, with remainder to the residuary legatees of his personalty, the latter to be applied to the payment of debts, and such debts as could not be paid thereby to remain a charge on the real estate, " to be paid therefrom after the life estate of my wife therein," with directions to the executor to defer the payment of certain mortgages on the real estate, during the lifetime of the widow or to make loans for the payment thereof, secured by mortgage on said real estate, to be paid therefrom after her decease. Construction : The mortgages were charged upon the estate in remainder, in exon- eration of the life estate. There being no direction in respect to the payment of interest on the mortgages during the life estate, the general intention of the testator, to give the life tenant the rents and profits without deduction, requires the interest to be paid at the expense of the residuary legatees; and the executor is bound to keep it down, out of their estate. 4 Kent's Com. 74 ; House v. House, 10 Paige, 158. Moseley v. Marshall, 22 N. Y. 200- n. RIGHTS AND DUTIES OF LIFE TENANT. 139 12. MORTGAGES AND INTEREST THEREON. DeB. died in 1878, leaving a widow, but no descendants. By his will he. gave his residuary estate to trustees named, in trust, to apply the rents, income and profits to " the sole use " of his wife during her life ; after her death he directed his trustees to pay out of the capital of the trust estate certain legacies "and to convey, transfer and distribute the remainder of the capital " to certain persons named. He empowered the trustees " to sell the whole or any part of the real estate belonging to such trust estate. " He directed that " the proceeds of such sales * * * shall be held and managed by the said trustees * * * upon the same trusts and for the same purposes and be disposed of in the same manner as such real estate would in case of no such sale." It was provided, however, that the trustees should not sell the testator's farm during the lifetime of his wife except with her consent, to be sig- nified by her joining in the deed, and that she should be permitted to use and occupy the farm free of rent so long as she lived. He also di- rected the trustees during the time that his wife so used and occupied the farm to pay out of the estate " all taxes upon said farm and the ex- penses of keeping the buildings thereon in proper repnir, and all other expenses attending the proper upholding and maintaining of the same, and also the interest upon any and all mortgages which shall be upon said farm at the time of his death." During the widow's lifetime the trustees paid the interest accruing upon a mortgage on the farm and the insurance premiums, taxes, etc., from the income of the estate in their hands. On their accounting these charges were objected to by the executors of the widow on the ground that the items were chargeable to the capital of the estate. Construction : Untenable; the words "pay out of my estate '' were not, in them- selves, sufficient to support the construction contended for, as the other parts of the will disclosed an intention to preserve intact the corpus of the estate for the ultimate disposition arranged with respect thereto upon the death of the life tenant. To sustain a construction of a will, whereby the capital of a trust fund may be impaired by using it in payment of taxes and of interest on mortgages and in maintaining the realty used. by the life tenant, it must contain words of the most unmistakable import pointing unequivocally in that direction. Matter of Albertson, 113 N.Y. 434, aff'g 46 Hun, 566. Where the heir at law has the right to redeem the mortgaged premises and the wife is entitled to dower in the equity of redemption, she has the equitable right to redeem her dower as against the mortgagee and those claiming under him, upon the payment of such portion of the incumbrance as is just and equitable. 140 VI. ESTATES FOR LIFE. 13. MORTGAGES AND INTEREST THEREON. Where this equitable right is vested in the wife, by the death of her husband in pos- session of the premises, the mortgagee can not deprive her of this right except by such proceedings against her, to foreclose her equity of redemption, as are by law required to bar tlie equity of redemption of the heirs at law in the same premises. For all substantial purposes the mortgagor in possession, and those who have de- rived title to the mortgaged premises or to any interest therein under him, are con- sidered as the real owners of the premises to the extent of their several interests therein; and the mortgagee is considered as a mere creditor who has a specific lien upon the premises for the payment of his debt. And where the mortgagee has thus taken possession, the wife of the mortgagor who is entitled to dower in the premises, and who was not made a party to the foreclosure suit, can not redeem her life estate except upon the payment of legal interest upon one-third of the amount due on the mortgage, for the residue of her life ; and posses- sion of one-third of the premises can not be decreed to hisr without an actual redemp- tion. The mortgagee in possession of the mortgaged premises can in no case be divested of that possession until his claim under the mortgage is fully satisfied. Where a mortgagee in possession has foreclosed the equity of redemption of the per- son who has the estate in remainder in the mortgaged premises, but not of the owner of the estate for life therein, the latter is not entitled to the possession of the premises during the continuance of his life estate, upon merely paying the interest which be- comes due on the mortgage from year to year for life ; but he must pay a gross sum, to be ascertained, under direction of the court, upon principles on which the present value of a life annuity is calculated, considering the annual interest on the amount then due on the mortgage as the annuity. And upon the payment of such gross sum, he will be permitted to. redeem his interest in the mortgaged premises and will be let into possession thereof during the continuance of his life estate therein; or the decree may direct his life estate to be sold, for the purpose of satisfying his proportion of the debt thus ascertained, and that the surplus arising from the sale be paid to him. The same mode must be adopted to settle the relative proportions which the owner of the life estate and the remainderman should pay to redeem the premises, where the mortgage has not been foreclosed as to either. Where the widow is entitled to dower in the equity of redemption, and the mort- gagee declines to enforce payment of the principal of his debt, she must, as between her and the heir or other owner of the equity of redemption, contribute sufficient from time to time to keep down one-third of the interest on the amount due. But where the mortgage money is due and the mortgagee insists upon the payment of his debt, the court will not require him to relinquish the possession of any part of the mort- gaged premises and to receive the payment of the proportion of the debt which is chargeable on that part of the premises in periodical payments, during the life of the party entitled to redeem. Where the widow elects to redeem, by the payment of a gross sum equal in value to the proportion of the interest on the amount due for life, or where her equitable right of dower has been redeemed by. the rents and profits received by the mortgagee in pos- session, or where her life interest in one-third of the premises is sold to satisfy the mort- gagee for her proportion of the debt, the admeasurement of her dower must be made upon the principles adopted in the Revised Statutes relative to the proceedings for the admeasurement of dower. The -principles upon which a mortgagee who takes possession of the mortgaged premises without a regular foreclosure is to account, are substantially the same as those which the Revised Statutes have adopted in relation to the damages of the II. RIGHTS AND DUTIES OF LIFE TENANT. 141 12. MORTGAGES. doweress, where her dower has been withheld from her, after demand ; that is, the mortgagee will be charged with the net rents and profits which he has received, or which lie might have received without any negligence on his part, after payment of taxes and ordinary repairs and other expenditures of that chaiacter. But ho will not he charged with the increased rents and profits arising from the use of any permanent improvements made by himself. Bell v. Mayor, etc., of N. Y., 10 Paige, 49. Where a widow is entitled to dower in the equity of redemption of mortgaged premises, she must keep down one-third of the interest upon the amount unpaid upon the mortgage at her husband's death, until the amount which was thus unpaid is re- quired to be paid oH ; and then sjie must contribute, towards such payment, a sum which will be equal to the then value of an annuit}' for the residue of her life upon the amount of principal and interest which was unpaid when her estate in dower commenced, by the death of her husband. But where the husband mortgages property, after his wife has acquired an inchoate right of dower therein, and she does not join in such mortgage, the heirs at law or devisees of her deceased husband must pay off the whole of the incumbrance Ihem- selves. Souse v. House, 10 Paige, 158. A life estate in a house and lot under mortgage is given by a testator to three per- sons.equally and then to others in fee. Held, that the tenants for life must keep down the interest equally out of the rents.' That when the life estates fall in, the mortgage remains a charge to be borne by those in fee. The tenants for life are not bound to extinguish it. If the mortgages are called in during the lives of the tenants for life, and it should be found expedient to pay the same out of the residuary per- sonalty of the devisees in fee, the latter will stand in the place of the mortgagees so far as to collect the interest payable by the tenants for life. And, as in this case the executors had paid off the mortgage, it was also held that the tenants for life must bear the interest which accrued upon it from the testator's death to the time of pay- ment, and continue to be charged with interest as if the mortgage remained. Oogs- well V. Cogswell, 2 Edw. Ch. 331. 13. RENTS— APPORTIONMENT OF. L. 1896, ch, 547 (ch. 46, G-en'l L., in effect Oct. 1, 1896), sec. 192. When rent is apportionable. " Where a tenant for hfe, who shall have demised the real property, dies before the first rent day, or be- tween two rent days, his executor or administrator may recover the proportion of rent which accrued to him before his death." 1 R. S. 747, sec. 23, in effect Jan. 1, 1830, repealed by L. 1896, ch. 547, sec. 800. As between tenant for life and remainderman, rent accruing upon leases executed by the testator of the parties, and becoming due afte the termination of the life estate, can not be apportioned. It is immaterial that the tenancy for life is created by the testator as a provision for his widow. The devisees in remainder of the premises out of which the rent issued, may maintain a joint action against the executor of the life tenant for rent collected by him, which became due after the termina- tion of the life estate." Marshall v. Moseley, 21 N. Y. 280. Bee Moseley v. Marshall, 22 N. Y. 300; Wright v. Halbrook, 33 id. 587; Brown v. Brown, 41 id. 507^^ i See ante, p. 137; post, 144, 145. «See Code of Civil Pro sec. 3720, post, p, 1529. 142 VI. ESTATES FOE LIFE. 13. RENTS -APPORTIONMENT OF. Where a lessor dies before the rent becotaes due, the rent goes to the heir as inci- dent to the reversion, and the executor can not maintain an action to recover it. No apportionment of rent is allowable between the executor of a lessor owning tlie fee, and the remainderman. A remainderman who succeeds to the reversion is entitled to the whole rent as entire rent due to him. The words "had accrued" in the section of the statutes specifying what shall be deemed assets which shall go to the executor (2 K. S. 83, sec. 6, subdiv. 7), signify rents that " had become due and payable" at the time of the testator's death. Fay y. Ealloran, 35 Barb. 395 14. TAXES AND ASSESSMENTS. (See Addenda.) Tenant for life should pay a portion but not the whole of a muni- cipal assessment for flagging sidewalk ; and some portion of the expenses thereof should be apportioned to the remainderman, so also of the expense of insurance of buildings and placing lightning rods thereon, and trustee is entitled to join in meeting such expenses. Peck v. Sher- wood, 56 K Y. 615. A municipal assessment for the flagging of sidewalks is not in the nature of an annual tax, to be paid entirely by a tenant for life of 'the premises assessed. Nor is it such a permanent improvement as that he should not contribute to its payment, but it should be apportioned between him and the remainderman. So, also, of the expense for insurance of the buildings and placing lightning rods thereon. Under a devise of a life estate, remainder to an executor in trust, the joining with the tenant for life in the insurance of the buildings upon the premises devised, and in the protection of them by lightning rods, are proper and judicious acts on the part of the executor, which he is authorized to do, and he is entitled to be allowed the proportion prop- erly chargeable to the trust estate. Peck v. Sherwood, 56 N. Y. 615. Devise to wife of life estate in a farm and other real estate in J., and then " which devise I make to my said wife for a home for herself and for my infant children, but my intent is nevertheless that the same shall be, at all times during said term, wholly subject to her will and control." There was other provision for the wife. Provision was made for the pay- ment of taxes on all other real estate, and disposition was made of all the anticipated revenue from his property. Construction : The widow as life tenant of the farm was liable for the taxes thereon. Deraismes v. Derais'mes, 72 N. Y. 154. The owner of mortgaged premises died, leaving a will by which he devised the premises to one for life, with remainder to others. Construction : The equities as between the life tenant and the remaindermen, ia re- gard to taxes and assessments, did not, in the absence of any evidence II. EIGHTS AND DUTIES OF LIFE TENANT. 143 14. TAXES AND ASSESSMENTS. of fraud and conspiracy to impose upon the remaindermen an obliga- tion belonging to the life tenant, a£Eect the right of the owner of the mortgage to protect his security by paying the same, and to have the amount so paid allowed to him as part of the mortgage debt. It seems that the life tenant can in such case be charged with the burden of the taxes as well after payment by the owner of the mortgage as before, also that the same may be charged against the interest of the life tenant in any surplus arising on foreclosure. It seems, also, that the remainderman, in case of default in the part of the life tenant in the payment of taxes or assessments, is entitled to have a receiver appointed to collect the rents and profits, and to apply the same to such payment. Sidenburg v. My, 90 N. Y. 257. Certain lands, of which G. died seized, descended to plaintiff as heir at law, subject to an estate for two lives in a trustee, created by the will of G. Taxes had been assessed upon the lands prior to the deatli of the testa- tor. These were paid out of the proceeds of sales of the laud pursuant to judgments in a foreclosure suit and in an action for dower commenced after the death of G. Plaintiff and defendant, the executor and trustee under the will of G., were parties defendant to said actions. In an action to compel defendant to restore to the trust fund, out of the per- sonal estate, the amount of the taxes, it appeared that the personal estate amounted to more than the taxes, but that there were claims of unpre- ferred creditors of the decedent largely exceeding the personalty. Construction : While it was the duty of the executor to pay the taxes before pay- ing the unpreferred debts (2 R. S. 87, sec. 27), while the proceeds of the sale of the land, as between the heir at law and the next of kin or lega- tees were to be treated as realty, and while the executor, as such, was not vested with administrative authority to sell lands for the payment of debts, yet as, if the executor was required to pay over to himself, as trustee, out of the personalty the amount taken from the real estate to pay taxes, the fund would be liable to be reappropriated on the appli- cation of creditors to the payment of general debts, and as, without any action on the part of the executor, the taxes have been paid, the relief asked for was properly denied. Smith v. Cornell, 113 K Y. 320, aff'g 20 J. & S. 494. Distinguishing 111 N. Y. 554. The will of S., who died in 1856, after giving to his wife the use and income of one-third of his house and lot and of his store and lot in the city of New York, authorized and directed his executors to lease and 144 VI. ESTATES FOE LIFE. 14. TAXES AND ASSESSMENTS. rent that portion not devised, to pay all taxes, expenses and charges, " and to divide the residue of the income thereof " among the testator's five children during life, and after death he devised " the same to their heirs in fee forever." In settlement of a suit brought by the widow for dower, the children agreed to keep the house and store in good repair and pay to her one-third of the gross income. The executors there- after leased both premises, paying her the one-third so agreed upon. In an action brought by a son of one of said children upon the death of his father for partition, the trial court ordered a sale and partition, and that the widow refund one-third of the taxes, repairs, etc., paid for six years prior to the commencement of the action. Construction : Error ; the testator's intention was to give the executors power to rent the whole premises, paying to the widow one-third of the income, and out of the remainder to pay all expenses; also while the grandchildren as remaindermen might' not be bound by the contract of the parties as life tenants, the construction given by them to the will and acted upon for many years would not be overturned when the provisions were reasonably capable of that construction. Starr v. Starr, 132 N. Y. 154, aff'g 54 Hun, 300. C. died leaving a will by the terms of which he devised to his widow the use of his " homestead premises," the only real estate left by him, during her life, and the remainder to the testator's legal heirs. The will directed that the taxes and repairs on the premises should be paid by the executor from the general estate in his hands '' without burden or charge " upon an annuity also given the widow. It was further provided that in case the widow '' should rent the whole or any part of said homestead she shall pay a part of the taxes * * * propor- tionate to the part so rented," and that the executor, on paying such taxes as she should pay, might retain the same out of the annuity. The general estate became exhausted, and thereafter the taxes and annuity were not paid. The property was sold for unpaid taxes and was redeemed by plaintiff, one of the remaindermen. Action to com- pel payment of the taxes by the widow, or the appointment of a receiver to rent the premises and apply the rents and profits to such payment. Construction : The intent of the testator was that the general estate should bear the burden of the expenses connected with the maintenance of the life estate, and that in no event, save in that specified, i. e., a rental by the II. EIGHTS AND DUTIES OF LIFE TENANT. 145 14. TAXES AND ASSESSMENTS " ■*"• widow, should her life estate be charged with the taxes ; and so, it was the duty of the remaindermen to pay the same. Glarke v. Clarke, 145 K Y. 476. Distinguishing Woodward v. James, 115 N. Y. 346. Wliere the will gives the net income of the residue of the testator's estate to a party for life, the estate of the life tenant must bear the ourden of the taxes'and ordinary repairs 'and the payment of interest upon liens if any exist. Wilcox v. Quinby, 7S Hun, 534. A tenant for life must keep down ordinary taxes ; and where she did not do so, the court directed a temporary receiver to be appointed to pay them, unless the tenant for life, within forty days, showed they were paid. It would seem, that where assessments, going to permanent benefit, occur, it might be right to apportion the payment between tenant for life and remainderman, but not to throw it all upon the tenant for life. Cairns v. Ghabert, 3 Edw. Ch. 313. NoTK. — "Power is given to the court of chancery by act of 1841, upon bill filed, to make apportionment among tenants for life and owners in reversion and remainder who are liable to contribute thereto, of taxes and assessments upon real estate situated in any city or milage of the state, which has been sold or is liable to be sold to satisfy them. L. 1841, ch. 341, p. 335. This power now belongs to the supreme court. Fleet v. Borland and others, 11 How. Pr. R. 489, L. 1847, ch. 380, sec. 16, p. 333. As to proceedings under this act see Dikeman v. Dikeman, 11 Paige, 484." Where there was a bequest of the income of a sum, it meant net income. B/e Cushing's Will, 58 Vt. 393. 15. WASTE. The reversioner may recover for waste by a tenant, although after its commission he alienate the estate and have no interest therein at the time of suit brought. Robinson v. Wheeler, 25 N. Y. 252. Eelative rights of life tenant and remainderman as to cutting timber and liability for waste of third person acting under contract from life tenant determined. Van Deusen v. Young, 29 IST. Y. 9. The felling of trees for the purpose of sale by a tenant for life, to the injury of the reversioner, is waste, and an action lies by the latter im- mediately to recover damages for the injury to the freehold. It is not a defense to such an action that the tenant acted in good faith, or under a claim of right, or that he was in possession, claiming title in fee to the land upon which the waste was committed. As the reversioner can not bring trespass or ejectment against the ten- ant so long as the tenancy continues, he is not debarred from his rem- edy for waste, because the proceedings may involve the determination of a disputed title. Robinson v. Kime, 70 K Y. 147; s. c, 1 S. C. 60. It is waste for a tenant to cut down and use wood growing on the demised premises to burn brick for sale, where he has covenanted not to cut down, destroy, or carry away any more wood or timber than should be actually used and employed on the farm, and that he would not make any manner of waste, sale or destruction of the wood or timber. Livingston v. Reynolds, 36 Wend. 115; s. c, 3 Hill, 157. ' See Thomas v. Evans, 105 N. Y. 613; Matter of Deckelmann, 34 Hun, 477; but not for taxes confirmed at testator's death. Matter of Babcock, 115 N. Y. 450. 'Hancox v. Meeker, 95 N. Y, 539 146 VI. ESTATES FOR LIFE. 15. WASTE. A tenant for life has the right to take from the premises reasonable firewood for the use not only of the house which she herself occupies, but also sufficient to supply the house of her servant who cultivates the laud, provided it can be done without in- jury to the inheritance. Gardiner v. Deering, 1 Paige, 573. Where wild and uncultivated land, wholly covered with wood and timber, is leased, lessee may fell part of the wood and timber, so as to fit the land for cultivation, with- out being liable for waste; but he can not cut down all the wood and timber, so as per- manently to injure the inheritance. And to what extent the wood and timber on such land may be cut down, without waste, is a question of fact for a jury to decide, under the direction of the court. Jackson v. Brawnson, 7 Johns. 227. In a bill for waste, proof of a single clear instance of waste committed intention- ally, is sufficient to entitle the complainant to a continuance of the injunction and to a decree for an account. It is scarcely possible to estimate the injury which the destruction of a few valua- ble timber trees by a tenant for life on a farm with a scanty stock of wood and timber, may occasion to the owner of the inheritance. Hence bills to restrain waste of this character, are not to be frowned upon by the court. A tenant for life of a farm of one hundred and sixty-five acres, is not entitled to fire- bote for the dwelling house of a farm or laborer, in addition to flre-bote for the prin- cipal dwelling house or mansion. And a custom to that effect would be unreason- able and invalid. In an account decreed against a tenant, for waste of timber, he may be allowed in mitigation, for fire wood and timber furnished by him for the farm, from other prem- ises. It is not waste for a tenant for life of a farm, to sell hay to be removed from the farm where it is the custom of husbandry in the vicinity, to sell hay from farms for consumption by others. The removal of coarse bog grass from a farm, which had usually been foddered on the farm, held to be waste. So of the impoverishment of fields, by constant tillage from year to year. The erection of a new out-house, with timber from the farm, in place of one which had become ruinous, is not waste. In a suit for waste against a tenant for life and her under t-enant, on a decree for an account against both, the former may insert a provision that the master ascer- tain what portion of the sum reported against her, should be paid by the under tenant. Directions in a decree for an account of waste committed by a tenant for life and her under tenant, in respect of timber, dilapidations, undue tillage and withdrawing manure. Sarles v. Sarles, 3 Sandf. Ch. 601. An action of trespass wiU not lie by a reversioner for an injury to the inheritance, committed by a person who acts under the authority or by the permis.sion of the ten- ant for life; such person not being a stranger within the meaning of the statute author- izing actions by reversioners. lAmngston v. Mott, 2 Wend. 605. The statute (1 N. E. L. 527, sess. 36, ch. 56, sec. 33), giving the reversioner or remain- derman an action of waste or trespass, for any injury done to the inheritance, notwith- standing an intervening estate for life or for years; gives the person in reversion or remainder, an action of waste only against the tenant; but he can bring an action of trespass against a stranger only. Livingston v. Haywood, 11 Johns. 429. An action of waste does not lie by the heir against the assignee of the tenant by the curtesy, but only against the tenant himself. Bates v. Shraeder, 13 Johns. 260. II. RIGHTS AND DUTIES OF LIFE TENANT, 147 15. WASTE. A person having an expectant interest in land, less than the inheritance, can not maintain an action for waste. Peterson v. Olark, 15 Johns. 305. Note. — See Lane v. Hitchcocli, 14 Johns. 213. If a tenant does an act, proper in itself, he can not be made a wrongdoer, by a consequence which he could not anticipate. As if, by turning the water of a creek, bi'ing an act of good husbandry, by causing the water to flow into a swamp, the timber growing there is killed, it would not be deemed waste so as to produce a forfeiture of a lease ; especially, when the landlord has lain by for twenty years, dur- ing which time new trees had grown up, of more value than the old, and, therefore, no permanent injury had been done to the inheritance. Jackson v. A ndrew, 18 Johns. 431. The statute of limitations does not run against remaindermen or reversioners, dur- ing the continuance of the particular estate. It was aimed at those who may be guilty of laches in omitting to enter, or bring actions ; which can not be said of remaindermen and reversioners, who have no right in law to do either. And this, whether the loartlcular estate exist at the time of the disseizin, or arise subsequently, provided that in the latter case it be immediately preceded by a disability or disabili- ties within l\iQ proviso of the statute. Jackson v. Johnson, 5 Cow. 74. An injunction to stay waste will be granted though there is no suit pending, and though no action can be maintained against the tenant at law. Kane v. Yarider- burgTi, 1 Johns. Ch. 11. Note. — The bill, which was for an injunction to stay waste, stated that Abraham Tenbroeck, being seized in fee of the premises, devised them in fee to his daughter, Margaret, who devised them to her sister, Elizabeth Schuyler, for life, remainder to her children living at her death, and in default of children, remainder to the children of her brother, Dirck Tenbroeck, in fee. After the death of the two testators, Elizabeth Schuyler and her husband, released her interest to the plaintiff. Elizabeth is still living, but without issue, and the defendants are tenants from year to year. * * * • * * "There are numerous cases in chancery, as Lord Hardwicke has fre- quently observed, Perrot v. Perrot, 3 Atk. 94 ; Robinson v. Litton, id. 310 ; Par- rant V. Lovell, id. 723 ; Garth v. Cotton, 1 Ves. 556, in which the court has Inter- posed to stay waste, by the tenant, where no action can be maintained against him at law. Thus, where there is a lessee for life, remainder for life, remainder in fee ; the mesne remainderman can not bring waste, nor the remainderman in fee, but chancery will interpose and stay thg TFaste." Action by owner of the fee of a farm agamst the lessee of the tenant for life for waste. The alleged waste consisted in cutting growing timber for fuel. At the trial the court charged that if the trees which were down were unfit for fuel or would cost more than their value to secure them, the defendant was not bound to take them. Held, correct. The tenant for life of farming land is entitled to cut down and use so much of the standing timber therein as may be necessary for fuel, etc., and is not compelled to cut timber which may cost more than its value to secure. The com- dlaint alleged that the defendant maliciously cut the timber and the plaintiff sought a forfeiture and eviction. Held, that defendant was entitled to testify that he cut the wood in good faith, believing that he had a right to do so. Butlierford v. Aiken, 3 S. C. 281. Citing, Foster v. Janin, 50 N. Y. 437. In an action for waste by the assignee of the reversioner against the sub-tenant of the tenant for life, held, (1) that an action for waste was maintainable under 3 R. S. 334, sec. 1, against the sub-tenant.* *The case of Rutherford v. Aiken, reported in 3 S. C, at p. 381, was between 148 VI. ESTATES FOB LIFE. 15. WASTE. The waste was committed without malice and under the belief on the part of the defendant that he had a right to do the acts constituting it. Held, that this did not affect the right of the plaintiff to treble damages.* Buth&rfm-d v. Aiken, 3 S. C. 60. Life tenant may work mines, open at commencement of tenancy, to exhaustion, and may cut trees, if value of ioheritance be not diminished. Bayers v. Eoskina, 110 Pa. St. 473 ; 1 Cent. 347. Wilson V. Galey, see 1 West. 488, Sup. Ct. of Ind. 16. WHAT CONSTITUTES THE CORPUS. Devise of real estate in trust, to sell and convert into money and invest and apply income and profits to use of grandchildren, and principal to be paid at beneficiaries' death to his heirs and by codicil provrision that, in case the proceeds of sale did not amount to $30,000, it should be made up to that sum out of the residue of the estate. Construction : Beneficiaries were, after death of testator, entitled only to income of real estate and not from the residuary until it should be ascertained from sale of real estate that the proceeds did not amount to $30,000. Finclce v. Fincke, 53 K Y. 528. When life tenant's expectation is greater than expected duration of improvements, life tenant should pay. Remainderman can be assessed for disbursements which in their nature are per- manent and do not require renewals. This rule includes benefits to estate from opening and widening street, and for grading streets and permanent sewers. Rey- bum V. Reyburn, 8 West, 281 ; 93 Mo. 326, under name Reyburn v. Wallace. If life tenant put on permanent improvements and they remain at termination of estate, they inure to benefit of remainderman without contribution. Anstell v. Swann, 74 Ga. 278 ; see Watson v. Watson, 6 West, 257 ; Endicott v. Endicott, 4 Cent. 871 ; 41 N. J. Eq. 98. the same parties for alleged waste of the same character upon the same premises, but was for acts committed since the cause of action in above case arose. *In Rutherford v. Aiken, in 3 S. C. 281, the question of malice (jreato ;Me«) was material under the complaint for forfeiture and eviction. The question of intent was not material in Rutherford v. Aiken, 3 8. C. 60, as there was an overt act of waste. III. POSSESSION OF CORPUS BY LIFE TENANT 149 III. POSSESSION OF CORPUS BY LIFE TENANT. 1. WHEN LIFE TENANT ENTITLED TO POSSESSION OF THE CORPUS WITHOUT SECURITY, p. 149. 2. WHEN LIFE TENANT ENTITLED TO POSSESSION OF THE CORPUS UPON GIVING SECURITY, p. 151. 3. WHEN LIFE TENANT IS NOT ENTITLED TO POSSESSION OF THE CORPUS, p. 151. 4. INTRENCHMENT ON THE CORPUS BY REMAINDERMAN, p. 165. 1. WHEN LIFE TENANT ENTITLED TO POSSESSION OF THE CORPUS WITHOUT SECURITY. Right of legatee to the possession of the corpus. Matter of accounting of Denton, 102 K Y. 200, digested p. 632. Where there is anything in the will from which it may fairly be in- ferred that the testator expected the tenant for life to enjoy the property specifically, it can not be converted into money or public funds; but the remainderman must take his chance of anything remaining after term- ination of the life estate. Matter of James, 146 K Y. 78. From opinion. — " Howe v. Earl of Dartmouth, 7 Ves. 137, is considered to be the leading case in England, upon the question whether property bequeathed by a testator shall be retained in specie, or whether, if of the perishable class of securities. It shall be converted in such a way as to produce capital bearing interest. The rule as laid down by Lord Chancellor Eldon in that case, as explained by subsequent decisions, among which is particularly to be mentioned that of Lord Cottingham in Pickering v. Pickering, 4 My. & Cr. 300, is this ; that where there is a residuary be- quest of personal estate, to be enjoyed by several persons in succession, a court of equity, in the absence of any evidence of a contrary intention, will assume that it was the intention of the testator that the legatees should enjoy the same thing In succession and, as the only means of giving eifect to such intention, will direct the conversion of personalty into permanent investments of a recognized character. Lord Eldon laid down the rule in that case, because of the absence of language in the will from which the direction of the testator might be inferred that his estate should continue as it was. Some difference of opinion has existed among the English judges with respect to the application of the rule laid down in Howe v. Earl of Dartmouth, which, in the recent case of Macdonald v. Irvine, L. R., 8 Ch. D., 101, is adverted to in the opinion of Lord Justice Thesiger. In the previous case of Hinves v. Hinves, 3 Hare, 611, Vice-Chancellor Wigram had said : 'The court in applying the rule has leant against conversion as strongly as is consistent with the sup- position that the rule itself is well founded.' In Morgan v. Morgan, 14Beav. 73, the master of the rolls. Sir John Romilly, said that, ' the effect of the later cases has been to allow small indications of intention to prevent the application of the rule.' Lord Thesiger, referring to the leaning of these judges, with others, against the, application of the rule, adopts the following words of Lord Romilly : ' That unless there can be gathered from the will some expression of intention that the prop- erty is to be enjoyed in specie, the rule in Howe v. Earl of Dartmouth is to prevail. It is, therefore, incumbent on the persons contesting the application of that rule, 150 VI. ESTATES FOR LIFE. 1. WHEN LIFE TENANT ENTITLED TO POSSESSION OF THE CORPUS WITHOUT SECURITY. and on the court which forbids that application, to point out the words in the will which exclude it, and if this can not be done the rule must apply. * * * In almost all, if not all, the cases which have been cited in argument, where such an intention was found to exist, * * * we find either words in their natural and literal sense importing use or enjoyment of the property in the state in which the testator left it at his death, or directions contained in the will as to the conversion of the property which were inconsistent with a conversion by the court taking place upon the death of the testator.' In that case the lords justices divided in opinion, as to whether any of the elements existed in the will under consideration to show the intention of the testator that the case should be taken out of the general rule ; but they all agreed, if there was a sufficient indication of intention in the will itself to that effect, that the personalty should remain in specie until after the death of the testator's wife. While there the testator gave to his wife for life ' all the income, dividends, and annual proce eds of his entire estate,' there were not present these significant words of injunction against any 'deduction,' or any interference with her use, enjoyment, or management. In Blann v. Bell, 3 DeGex, Macn. & G. 775, the principle was distinctly recog- nized that the intention in the will should govern upon the question of the retention of property in specie and that where it is seen to exist the case will be taken out of the general rule. In Collins v. Collins, 2 My. & K. 703, the language of the gift to- the wife is not unlike, in its effect, to that in the present case. The testator there gave ' all and every part of his properly in every shape and without any reserve and in whatever manner situated, for her natural life,' and at her death the property was to be divided among his father, brothers and a sister. Sir John Leach, M. B., held the rule in Howe v. Earl of Dartmouth did not apply. In this state the rule laid down in the Earl of Dartmouth's case was early adopted, as applicable in the absence of any indication of an intention on the part of the testator that the legatee for life should enjoy the property in its then state. See Spear v. Tinkham, 2 Barb. Ch. 211, and other cases cited on brief for heirs. In every case, in this, or any other state, however stringently that rule is applied as between a tenant for life and remaindermen, it is the absence of manifest or plain intention which sets it in operation. In Clarkson v. Clarkson, 18 Barb. 646, the decision of the question of the dis- position to be made of extraordinary dividends was referred to the discoverable intention of the testator. The case of King v. Talbot, 40 N. Y. 76, frequently cited, has no application. The question discussed was with reference to how the dis- cretion of trustees is prudently and lawfully exercised in the investment of moneys- iheld for the benefit of minors and a very strict rule was laid down." (P. 100-3.) jj Testator, by his will, gave to his wife, after payment of debts, the "use, income and occupation " of his real estate for her life, and upon her death to his daughter for life ; remainder to her heirs. The use and control of certain of his personal property he gave to his wife for her support and enjoyment during life, the residue thereof, if any there remain, to his daughter. Construction: The defendant (the testator's wife) should give to the plaintiff (the testator's daughter and executrix of his will) an inventory of the articles bequeathed, stating that they are in her possession under such bequest, and that at her death they, or so many or so much of them as shall not be consumed by a reasonable and proper use, are to be delivered up to the plaintiff. But as there is no proof of danger that the III. POSSESSION OF CORPUS BY LIFE TENANT. 151 1. WHEN LIFE TENANT ENTITLED TO POSSESSION OF THE CORPUS WITHOUT SECURITY. articles ■will be wasted or otherwise lost to the remainderman, the defendant should not be required to give security. Oetman v. McMalwn, 30 Hun, 531 (534). See Covenhoven v. Shuler; 2 Paige, 123, 132. A tenant for life having absolute power of consumption may take possession of corpus without security, though there be a devise over of the residue. Flanagan v. Flangan, 8 Abb. N. C. 413. Where the will evinces an intent that the life tenant should have the corpus, the executor may, unless it is extremely hazardous, pay the principal to him. Matter oj Mrnbacher, 17 Abb. JS[. C. 339. Testatrix, having no other next of kin than A., gave to her a life estate in all her property, but not subject to control, etc., of any relatives or husband of A. Construction: A. had a right to the exclusive control during life of both principal and income, the residue of which devolved by operation of law upon the testatrix's husband. Matter of Westcoii, 16 St. Rep. 286. A gift of income, rents, issues and profits in a will to a life tenant, shows an intent that he should have possession. Thomas v. Evans, 16 Wkly. Dig. 273. Donee for life of personal property is entitled to possession without security. Re- Oertle, 34 Minn. 173. A leeatee of a life estate is entitled to possession of the property without security or anything more than an inventory thereof, except in cases of real danger. Matter of Oei'tle, 34 Minu. 173. So when it appears from the will that testator so intends. Post v. Van Souten, 41 N. J. Eq. 82. Remainderman has no right to possession of any portion of money paid into court under condemnation proceedings, during continuance of life estate. Life tenant has same estate in said moneys as he had in the premises condemned. Kansas Gity, etc., B. Co. V. Weaver, 86 Mo. 473 ; 1 West. 748. 2. WHEN LIFE TENANT ENTITLED TO POSSESSION OF THE CORPUS UPON GIV- ING SECURITY. Life tenant was required to give security. Livingston v. Murray, 63 N. Y. 484, digested p. 97. Security may be required of life tenant before receiving property. Matter of Blauvelt, 131 N. Y. 249, digested p. 910. By the will of S. he gave his residuary estate to his wife, "to be used and enjoyed by her," during life or as long as she should remain his widow, and at her death or re-marriage then the same to be equally di- vided between other persons named in the will ; the same to be "re- ceived and accepted" by her in lieu of dower. The testator left per- sonal estate only, which was converted into money. The executor died and an administrator with the will annexed was appointed, who incur- red some expense as such. Upon the settlement of the executor's ac- counts the surrogate decreed that the whole fund should be paid over by the administrator of the executor directly to the widow, who was 152 VI. ESTATES FOB LIFE. 2. WHEN LXFE TENANT ENTITLED TO POSSESSION OF THE CORPUS UPON GIV- ING SECURITY. then a resident of another state, and that she was entitled to the posses- sion thereof without giving security. Construction: Error; the administrator with the will annexed was entitled to have the money paid over to him, and if he had made any disbursements, or incurred any obligations properly chargeable to the estate, he was enti- tled to an opportunity of proving this and to a decree for their payment; also, the will simply gave to the widow an estate for life or during widowhood, and upon the happening of either event the remaindermen were entitled to the whole corpus of the estate ; as the property was not of a kind which must be individually possessed in order to be enjoyed, she was not entitled to possession without giving security. (See note 1.) Smith V. Van Ostrand, 64 K Y. 278; Flanagan v. Flanagan, 8 Abb. (N. C.) 413; In re Woods, 35 Hun, 60; Thomas v. Wolford, 1 K Y. Supp. 610; Champion v Williams, 36 K Y. St. R. 706; In re Grant, 16 N. Y. Supp. 716, distinguished. Matter of McDougall, 141 N. Y. 21. From opinion. — Possession of the corpus was not at all necessary to tlie enjoy- ment of the legacy in the manner and to the extent intended by the testator, as such intent can be gathered from the language he employed in his will. If the property were chattels or something of that nature which, in order to be physically used or enjoyed, must be possessed, then the proper course would be to exact an inventory of such property, and an acknowledgment that it was held for life only, witli the title in the remaindermen subject to the precedent life estate. 1 Sto. Eq. Jur., sec. 604, note 1; Covenhovenv. Shuler, 3 Pai. 133, 132; Tyson v. Blake, 32 N. Y. 558; Living- ston V. Murray, 68 id. 485. The above cases also show that it is the right of the executor in a case like this, be- fore paying over to a life legatee a life legacy in money, to exact security from such legatee for the forthcoming of the corpus of the legacy at the time of the termination of the life or other happening of the contingency provided for. Where the life ten- ant is insolvent or a non-resident of the state, it is still more certain that the remain- derman has a right to demand that the life tenant shall give security before the corpus of the legacy is delivered to him. Clarke v.' Terry, 34 Conn. 176; In re Petition of Camp, 136 N. Y. 377, 385." (p. 37-28.) P., by his will, gave to his daughter F. $20,000 in trust, "the same to same to revert at her death without issue " to the testator's widow and son. In an action brought by the executors it was adjudged that the fund was payable to F.; that she was, however, not at liberty to spend or waste the principal, but was bound to keep it securely invested for the benefit of the remaindermen. The money was paid over to F. pur- suant to the judgment. The widow thereafter died, and her executor made a motion at the foot of the decree for an order requiring F. to give security for the fund. These facts appeared thereon: The whole fund III. POSSESSION OF CORPUS BY LIFE TENANT. 153 2. WHEN LIFE TENANT ENTITLED TO POSSESSION OF THE CORPUS UPON GIV. ING SECURITY. having been hopelessly lost by unfortunate investments, F. insured her life for $20,000 to provide for its ultimate restitution. Her mother protested against this, asked F. not to continue the policies, and promised to forgive her the loss, and not call upon her for the fund. F. paid the premiums for a time, and then notified her brother of her inability to continue this, and suggested that he continue the pohcies; this he re- fused ; she thereupon allowed $10,000 of the insurance to lapse. The court required F. to give security for the one-half of the fund payable to the brother, but refused the application as to the one-half going to the mother. F. complied with the order. Appeal by the executor. Construction : There was no absolute legal right to the security sought, but the mat- ter rested in the reasonable discretion of the Special Term ; and this discretion had been exercised in behalf of the moving parties as fully as was justified. Hitchcock v. Peaslee, 145 N. Y. 547. The testator by his ■will gave to his son J. a fund "in trust to be invested for the benefit of his heirs, he having use or interest of the same, also his widow so long as she remained his widow, he dying without heirs of his own begotten; the corpus to revert to certain other devisees. Construction : The will gave an estate to J. for life and created no trust, and as there was no trus- tee for the fund, the executrix should take charge of it, invest it, etc. ; but if delivered to J., he should be required to give security therefor; had J. been trustee of the prop- erty he could have been compelled under sec. 1, ch. 482, L. 1871, to give security for its disposition as directed by the will, viz. : to his widow for life with remainder over to the devisees named in the will. Monifort v. Montfort, 34 Hun, 120. Mrs. Shipman by will gave her residuary estate to her husband, Edgar J. Shipman, absolutely. By a subsequent clause she revoked the bequest should children be there- after born to her and survive her, and in that event gave her residuary estate to her husband ' ' during his life," to be divided equally between our surviving children after his death," and appointed her husband the executor. One child subsequently born survived the testatrix. Upon the settlement of Mr. Shipman's accounts as executor, the Surrogate's Court authorized him to pay over to himself, as life tenant, the residuary estate, upon his giving security to protect the interests in remainder, and also directed that, in case Mr. Shipman should individually decline to receive the corpus of the estate upon the condition of giving security, he should then, as a condition of retaining it as executor, give a similar bond, and in default of giving such bond that he should deposit the entire fund with the chamberlain of the city of New York, to be by him invested, he to pay the income to the tenant for life and the principal to the remainderman upon the termination of the life estate. Construction : The latter part of the decree was made without authority, as the surrogate thereby attached to the executor's office a condition imposed neither by law nor by the testatrix. SO 154 VI. ESTATES FOR LIFE. S. WHEN LIFE TENANT ENTITLED TO POSSESSION ;0F THE CORPUS UPON GIV- ING SECURITY. The surrogate's power was limited to the revocation of the letters testamentary for one of the causes specified in section 3685 of the Code of Civil Procedure. As in tlie case at bar there was no trust relation other than that attached to every executor's office, nor any provision in the will calling for the exercise of judgment or discretion, there was no rule of law or requirement of public policy which, under such circumstances, and in the absence, as matter of fact, of any necessity therefor, which authorized the court to require security from the executor and, in case of non- compliance, to compel the deposit of the estate with a public official, thus, in effect, removing the executor from his office and frustrating the will of the testatrix. Matter of Sliipman, 53 Hun, 511. Residuary estate given for life ; held, executor may pay the corpus to her if she give security therefor, otherwise not. Matter of Oillespie, 18 Abb. N. C. 41. Where there is a bequest for life with remainder (or limitation) over, containing specific articles which, first, are not necessarily consumed in its use, the life tenant or tenants may be required to make an inventory of the goods, specifying that he only had a life estate therein, it belonging thereafter to remainderman, and security for the ultimate disposition according to provisions of the will, if tliere is danger that the articles will be lost, impaired or wasted; and, second, are consumed in their use, the whole fund must be converted into money and invested and the income thereof only paid to the life tenant. Spear v. Tinkham, 6 Ch. Sentinel, 73. 3. WHEN LIFE TENANT IS NOT ENTITLED TO POSSESSION OF THE CORPUS. L. S. by his will gave to his wife the one-third of the residue of his personal estate after his debts and legacies were paid, and also the use of all their residue of the per- sonal estate and the occupation and enjoyment of the farm on which the testator lived, so long as she remained his widow, and in case of her marriage, he gave to her during life the use and occupation of one-third of his real estate ; and in that event, directed that the income of the remaining two-thirds should be applied to the education and maintenance of his children, and after the youngest child became of age, he directed his executors to divide all his real and personal estate equally among his children, to have and to hold to them and their heirs forever, and declared that he intended the bequest and devise to his wife should be in lieu of dower ; the wife elected to take under the provisions in the will. Construction: The widow was entitled to the use of the whole estate Tiuring her widowhood ; one- third of the personal estate was hers absolutely, and in case she married she would have the use of one-third of the real estate for life in lieu of dower. The children of the testator could compel the widow to account for all the personal estate, and that their share of the same should be invested, and the income paid to the widow during her life or widowhood, and that the principal, after her death or marriage, should be divided among them according to the provisions in the will. Where specific chattels not necessarily consumed in the use are bequeathed for life with a limitation over, the practice is to require from the first taker an inventory of the goods,* specifying that they belong to him for the particular period only, and afterwards to the person in remainder. And security is not required from the first taker unless there is danger that the articles will be wasted or otherwise lost by the remainderman. * So held in Westcott v. Cady, 5 Johns. Ch. 334 ; Getman v. McMahon, 30 Hun, 531. III. POSSESSION BY CORPUS OF LIFE TENANT. 155 3. WHEN LIFE TENANT IS NOT ENTITLED TO POSSESSION OF THE CORPUS. If there is a general bequest of a residue for life witli remainder over, althougli it includes articles ■whicli are consumed in the using, the whole must be sold and con- verted into money, and the proceeds invested, and the interest only is to be paid to the legatee for life. Oovenfu>ven v. Shuler, 3 Paige, 132. T., having life estate charged with support of infants, was not entitled to enjoy the personal property for life, in specie ; but it must be converted and permanently secured, so as to give her the income, and preserve the capital for the next of kin. Emmons v. Cair-ns, 3 Sandf. Ch. 369 ; 3 Barb. 343. Life tenant was not entitled to possession where testatrix gave her property to executors with power to sell and convert, and gave an uncle the use and income thereof for life, with remainder to brothers and sisters. Matter of Dow, 7 St. Rep. 535. Gift to A. for her use and benefit during her life with authority in the executors to convert real and personal into cash and invest same for purposes of will. Executors gave A. possession of entire property. This was unauthorized. Matter of Millard, 37 St. Rep. 789. When corpus arising from foreclosure should be invested under direction of court. Bolman v. Lohman, 79 Ala. 63. 4. INTRENCHMENT ON THE CORPUS BY REMAINDERMAN. Devise in trust to invest a fund, the income thereof to be paid to A. for life and upon his death the corpus to be divided among his children, etc. An application by A. to have a part of the principal paid to the children by reason of his inability to provide for them was granted. Matter of MuUer, 39 Hun, 418. 156 VI. ESTATES FOR LIFE. IV. DOWER. 1. NATURE OF THE ESTATE, p. 157. 1. BEFORE DECEASE OP HUSBAND, p. 157. 3. AFTER DECEASE OF HUSBAND, p. 160. 2. REQUISITES, p. 164. 1. MARRIAGE, p. 164. 2. SEIZIN, p. 165. 3. DOWER IN LANDS EXCHANGED, p. 168. i. DOWER IN LANDS MORTGAGED, p. 168. 1. IN LANDS MORTGAGED BEFORE MARRIAGE, p. 168. 2. IN LANDS MORTGAGED AFTER MARRIAGE, p. 169. 3. IN LANDS MORTGAGED FOR PURCHASE MONEY, p. 170. 4. IN LANDS OP A MORTGAGEE, p. 172. 6. DOWER IN LANDS ALIENATED, p, 173. 6. INCIDENTS OF THE ESTATE, p. 173. r. EXTINGUISHMENT, p. 173. , 1. BY RELEASE TO GRANTEE OF HUSBAND, p. 173. u. By power of attorney, p. 1 75. 2. BY RELEASE OF DIVORCED WOMAN TO HER FORMER HUSBAND, p. 176. 3. BY FORFEITURE FOR MISCONDUCT, p. 177. n. Forfeiture of i>ecuniary provislou in lieu of dovrer, p. 1 79. 4. BY EXERCISE OF RIGHT OP EMINENT DOMAIN, p. 179. 5. ACTS OP HUSBAND, p. 183. 8. BARRMENT, p. 180. 1. BY JOINTURE, p. 180. 2. BY PECUNIARY PROVISION, p. 181. 9. ELECTION, p. 181. 1. BETWEEN JOINTURE AND DOWER, p. 181. 2. BETWEEN DEVISE AND DOWER, p. 182. 3. WHEN ELECTION IS DEEMED TO HAVE BEEN MADE, p. 196. 10. WIDOW'S QUARANTINE, p. 197. 11. WIDOW MAY BEQUEATH CROP, p. 197. 13. PROVISIONS OF THE CODE OF CIVIL PROCEDURE, p. 198. 13. ASSIGNMENT AND ADMEASUREMENT, p. 20a. Eeal Prop. L. 170 (L. 1896, ch. 5-47; took effect Oct. 1, 1896). "Dower. A widow shall be endowed of the third part of all the lands whereof her husband was seized of an estate of inheritance, at any- time during the marriage." 1 R. 8. 740, sec. 1, same.* When damages may be recovered for withholding dower, see Code Provisions, post, p. 198. *1 R. L. 56, sec. 1 (repealed by L. 1828, second meeting, oh. 31, sec. 1, 1 8) and for her dower gliall be assigned unto her the third part of all the lands of her husband, which were his at any tinae during the coverture. L. 1787, ch. 4, sec. 1 same as 1 R. L. 56, sec. 1. IV. DOWEE. 157 Dower recovered against an infant may be recovered by infant on attaining ma- jority, see Code Provisions, post, p. 199. Owner may bring action against a woman claiming dower to compel determination of her claim, see Code Provisions, post, p. 200. Satisfaction of dower in lands held under contract of purchase, 'see Code Pro- visions, post, p. 203. 1. NATURE OF THE ESTATE. 1. BEFGHE DECEASE OP HUSBAND. "The right to dower is a title paramount to that of the husband, and when he devises the land, though without any qualifying words, an ex- ception of the wife's right to dower is implied. Havens v. Sackett, 15 N. Y. 365, digested citing Adsit v. Adsit, 3 Johns. Ch. R. 448; Church v. Bull, 3 Denio, 430. Where a husband conveyed to a third party property in trust to receive the rents, issues and profits for the benefit of his wife, and sub- sequently husband and wife Join in a mortgage of the property to secure his antecedent debt, the whole estate vested in the trustee, the husband had nothing to convey, and the wife's inchoate right of dower was incapable of being transferred or released during her coverture, except to one who already had, or who by the same instrument re- ceived, an independent interest in the estate, and as she could not bind herself personally by a covenant affecting her dower, she was not es- topped from setting up a subsequently acquired title, and plaintiff took no interest under his mortgage. Marvin et al v. Smitli et al, 46 N. Y. 571. Note. — "An inchoate right of dower may be released_ to the grantee of the hus- band, by a proper conveyance executed and acknowledged in the form prescribed by the statute, but the right can not be transferred to a stranger, or to one to whom the wife does not stand in privity. Robinson v. Bates, 3 Mete. 40 ; Tompkins v. Fonda, 4 Paige, 448 ; Jackson v. Vanderheyden, 17 J. R. 167 ; 1 Washburn on Real Prop- erty, 253. * * » The general rule that a vendor of real estate with covenants of warranty can not acquire an outstanding title, and set it up adversely to his conveyance, is not appli- cable to the deed of a feme covert, who unites with her husband in a conveyance with warranty. Jackson v. Vandei-heyden, 17 J. R. 167. * * » If therefore, the husband has no interest which was subject to the mortgage, and passed by means of it, the mortgagee took no title to the dower right. That could only be released by deed of her husband, conveying the estate to which it was incident, in which she should unite. Carson v. Murray, 3 Paige, 483-508 ; Jackson v. Vanderheyden, supra; Page v. Page, 6 Cush. 196." As between wife and any other than the state or its delegates or agents exercising the rights of eminent domain, her inchoate right of dower in the lands of her husband is a subsisting and valuable inter- est, to protect and preserve which she has a right of action. 158 VI. ESTATES FOB LIFE. 1. NATURE OF THE ESTATE. 1. BEFOKE DECEASE OP HUSBAND. Where, therefore, a husband and wife join in a conveyance of lands of the former, the sale being induced by fraud on the part of the grantee, the wife has a cause of action against him for damages sus- tained in the loss of her inchoate rights of dower. Simar v. Canaday, 53 ISr. Y. 298. Limiting Moore v. Tlie Mayor, etc., 8 N. Y. 110 ; citing, Jackson v. Edwards, 7 Paige, 386 ; s. c, 32 Wend. 498 ; Denton v. Nanny, 8 Barb. 618 ; Vartie v. Under- wood, 18 id. 561. Where a conveyance by a husband is set aside on tlie ground that it was fraudulent as to his creditors, the dower interest of his wife, which was cut off by her uniting in the fraudulent deed with him, is restored to her, and after the death of her hus- band she may recover her dower in the premises. Wilkinson v. Paddock, 57 Hun, 191. A widower, engaged to be married to plaintiff on August 27, but whose engagement was postponed on account of sickness, conveyed on August 13 and without knowl edge of plaintiff nearly his whole estate to two daughters of a former marriage, and took back a lease for life. After the marriage, plaintiff, upon learning that said conveyance had been made, brought this action to set the same aside. Construction: The conveyance was a fraud upon the rights of the wife and would be adjudged void as to her inchoate right of dower, and she should be adjudged entitled to a dower right in the lands as conveyed. She might maintain such action during the life of the husband. Toungs v. Carter, 10 Hun, 194. Note. — It is as much a fraud for a husband to place his property out of his hands for the purpose of avoiding marital rights of wife as it is for a debtor to convey to defeat creditors. " The latter, it has been held, can not be successfully accomplished." Savage v. Murphy, 34 N. Y. 508 ; Case v. Phelps, 39 id. 164. And the same prin- ciple should maintain the action of the wife to vindicate herself against the success of a similar device. It has been applied in that manner in several instances, and ex- pressly sanctioned in others. Smith v. Smith, 3 Halst. N. J. Ch. 515 ; Cranson v. Cranson, 4 Mich. 330 ; Swaine v. Ferine, 5 Johns. Ch. 483 ; Thayer v. Thayer, 14 Ver. 107." To the same effect is Douglas v. Douglas, 11 Hun, 406. A wife has no estate in the lands of her husband during his life which she can convey; her inchoate right of dower is but a contingent claim, incapable of transfer by grant or conveyance, but susceptible only, during its inchoate state, of extinguishment. Such an extinguishment can only be effected by a proper convey- ance to the grantee of the husband. Where, therefore, the wife joins with her husband in a deed of his lands, this does not constitute her a grantor of the premises, or vest in the grantee any greater or other estate than such as he derives from the conveyance of the husband. IV. DOWER. 159 1. NATURE OF THE ESTATE. 1. BEPOBE DECEASE OF HUSBAND. Construction : In an action by a widow, who had joined with her husband in a deed of his real estate, brought against the grantee to amend the deed on the ground of fraud, so far as it affected her right of dower, defend- ant derived his title " through, from and under," the husband within the meaning of section 829 of the Code of Civil Procedure ; and plaintiff was not a competent witness as to personal transactions with the decedent. The authorities upon the subject of the nature and characteristics of dower right collated. Wiithaus v. Schack, 105 K Y. 332, rev'g 38 Hun, 590. Inchoate dower right is a chose in action. Matter of Dunn, 64 Hun, 18. A wife's inchoate right of dower is not derived from her husband, but it vests at the moment of the grant to her husband and she takes it constructively as purchaser from the grantor. Kursheedt v. Union Dime Savings Inst, of the City of New York, 118 N. Y. 358. Citing, Sutliff v. Forgey, 1 Cow. 89 ; 5 id. 713 ; Priest v. Cummings, 30 Wend. 350 ; Connolly v. Smith, 31 id. 61 ; Lawrence v. Miller, 3 N. Y. 351. Where an agreement is made between parties standing in a confiden- tial relation, or in a relation which gives to one party great influence over the other, and the agreement is to the advantage of the party in whom the confidence is reposed or whose influence is the dominant one, and to the detriment of the other party, the former will not be permitted to enforce the agreement unless it appears that he acted in the utmost good faith and that disclosure was made of all the material facts, or that the other party acted with a clear comprehension of the object and effect of the agreement. This rule applies in favor of a wife in respect to an antenuptial con- tract, and the courts will regard with rigid scrutiny such a contract where it deprives her of any prospective interest in the estate- of her intended husband, and especially where no provision is made therein for her support in case she survives him. Pierce v. Pierce, 71 N. Y. 154 ; Kline v. Kline, 57 Pa. St. 120 ; s. c, 64 id. 122. In an action by the wife to set aside an antenuptial agreement, by the terms of which she surrendered all claims to dower, it appeared undis- putably that defendant at the time the agreement was made owned real estate of the value of $100,000 ; that the relinquishment of dower was not a condition of the engagement of marriage ; that there was no nego- tiation between the parties on that subject before they met and executed the agreement ; that defendant then stated that he wanted it arranged 160 VI. ESTATES FOB LIFE. 1. NATURE OF THE ESTATE. 1. BEFORE DECEASE OF HUSBAND. ?o that he could buy and sell real estate without interference from her, but did not disclose to her that this would mean a relinquishment of her dower right ; that no consideration was paid for the surrender, and that she acted without the aid of counsel. Construction : The General Term properly reversed on the facts a judgment of Special Term in favor of the defendant, and plaintiff was entitled to the relief sought. Graham v. Graham, 143 N. Y. 573, aff'g 67 Hun, 329. The inchoate right of dower is a valuable, subsisting, separate and distinct interest which is entitled to protection, and for which the wife may maintain a separate action. Clifford v. Kampfe, 147 N. Y. 383. Citing Simar v. Canaday, 53 N. Y. 398-303 ; Mills v. Van Voorliles, 20 id. 413 j Jackson v. Edwards, 7 Paige, 408; Madigan v. Walsh, 23 Wis. 501; Burns v. Lynde, 6 Allen, 305 ; Davis v. Wetherell, 18 id. 60 ; Petty v. Petty, 4 B. Monroe, 315; Bab- Cock V. Babcock, 53 How. Pr. 97; Taggert v. Rogers, 49 Hun, 365. An inchoate right of dower is not subject to a mechanic's lien although the wife agreed to pay for the improvement. Johnston v. Dalilgren, 14 Misc. 633. 3. AFTER DECEASE OF HUSBAND. The statutes relating to the sale of the real estate of deceased persons,, under a surrogate's order for the payment of debts, do not authorize the sale of the widow's estate in dower, where dower has been assigned to her. Before assignment the widow has no estate in the lands of her hus- band. Until then her interest is a mere chose in action, or claim which is extinguished by a sale under a surrogate's order. But after assignment the seizin of the heir is defeated ah initio, and the doweress is in of the seizin of her husband as of the time when that seizin was first acquired or held during the coverture. Qucere, whether a statute would not be unconstitutional which would authorize a sale under a surrogate's order of a widow's estate in dower, where the marriage and seizin of the husband occurred prior to the passage of such statute. Lawrence v. Miller, 2 N". Y. 245. Note. — " The right of dower attaches at the instant of the marriage, and can not be defeated by the alienation of the husband alone. 1 Cruise's Dig. 136. In the case of Kelly v. Harrison (2 Johns. Cas. 39), the principal was established, that by the marriage and seizin of the husband, the wife's right to dower became a vested right, and could not be impaired by the subsequent acts of the government, and of course not by subsequent legislation. Mr. Justice Kent says : 'By the marriage the widow was capable of being endowed of lands purchased by the husband at any time during coverture, but the right could not attain till the land was purchased, and I distinguish. IV. DOWEB. 161 1. NATURE OF THE ESTATE. 2. AFTER DECEASE OF HUSBAND. between the capacity to acquire, and the vested right. The revolution took away the one, and did not impair the other." So, in Jackson v. Edwards, 23 Wend. 498, the same principle is recognized by Senator Verplanck. The English parliament, although unrestrained by constitutional limitations, deemed the right to dower so far vested, by marriage, that in a recent enactment, in which they virtually abolish dower (see 3 and 4 W. 4, ch. 105, passed Aug. 29, 1883), a special clause is inserted declaring that said act shall not extend to the dower of any widow, who shall have been, or shall be married, on or before the 1st day of January, 1834. Thus sanctioning, by parliamentary authority, the primary rule for the interpretation of statutes, which the English courts have adhered to with commendable firmness, 'Nova constitutio futuris fm'mam debit imponere non praeteritis.' The 16th section of our statute concerning dower (1 R. 8. 742) places the wife's claim on the same basis as that of jointure. She can not be barred or prejudiced by any act, in the one case, which would not prejudice the other. A jointress is con- sidered a purchaser; marriage alone being considered a valuable consideration; and by the English law dower was not forfeited by the commission of adultery. But here, it is otherwise, by statute. 1 R. S. 784 sec. 15; 1 Cruise's Dig. 156, sec. 1. In Sutliffl V. Porgey, 1 Cowen's R. 89; 5 id. 713, in error, it was decided, that the widow of an alien, who was herself an alien, was entitled to dower as a purchaser. So, a deed of lands to the husband will not be set aside tor fraud, where it was an inducement to a subsequent marriage, because marriage forms a valuable consideration. Verplanck V. Sterry, 12 Johns. 586; 8 Cowen 587. In the case of Dartmouth College v. Wood- ward, 4 Wheat. 538, it was impliedly admitted by Chief Justice Marshall, and ex- pressly asserted by Mr. Justice Story, that the marriage contract itself was within the constitutional protection." (p. 250-1.) Widow's entry defeats seizin of heirs. Oibbs v. Mty, 32 Hun, 266. A widow, after assignment of her dower in lands of which her hus- band died seized, is in possession of the seizin of her husband. Her title relates back to the time of the marriage, if the husband was then seized, and if not then seized it relates back to the time when he became seized. By the assignment of dower the seizin of the heir is defeated ai initio, and the heir is not afterwards considered as ever having been seized. The widow, after assignment of her dower, not holding under the heir, has no right to appear before the surrogate to show cause why the lands of which the husband died seized should not be sold for the pay- ment of his debts; the statute only giving such right to heirs and devisees, and persons claiming under them. An order of the surrogate directing the sale of the whole of the real estate of which the husband died seized, including the part assigned to the widow for her dower, is void, so far as relates to her life estate. Service upon the widow of the order to show cause, as she had no right to appear and oppose the order for a sale, could not make her a party to the proceedings, so that the rights would be affected by the decrea 21 162 VI. ESTATES FOE LIFE. 1. NATURE OF THE ESTATE. 3. AFTER DECEASE OF HUSBAHD. If the widow after the sale of the estate under the surrogate's decree to pay debts, purchased the interest of the creditors in the proceeds of the sale, under a fraudulent representation that the value of her dower Interest was to be taken out of those proceeds, such fraud could in no way affect the rights of the purchaser under the decree. The receipt by her, as assignee of the creditors, of the whole pur- chase money, could not be regarded as an affirmance by her of the sale of her life estate in the lands, or as a surrender of her life estate, to the purchaser of the estate in remainder. An attornment to such purchaser by a tenant of the widow is void. Lawrence v. Brown, 5 N. Y. 394. A widow's right of dower has no connection with and is not affected by the will of her deceased husband, or by the adjudication of the sur- rogate thereon. Carroll v. Carroll, 60 N. Y. 121, rev'g 2 Hun, 609. A widow's dower is no part of her husband's estate. Olmstead v. Latimer, 9 App. Div. 163. The dower interest which a widow has in lands of which her deceased husband had been seized is, although unmeasured, assignable as a right in action and is liable in equity for her debts. In pursuance of an order appointing a receiver in proceedings sup- plementary to execution against a widow who was entitled to dower, but which had not been assigned to her, she conveyed her dower in- terest to the receiver, he having also complied with the conditions pre- scribed by the Code (sec. 2468), for the vesting of the property of the judgment debtor in him. Construction : He was entitled to maintain an action to admeasure the dower ; also the action was properly brought by him in his own name as receiver. Also, plaintiff's position did not enable him to bring an action for partition. Payne v. Becker, 87 N. Y. 153, rev'g 22 Hun, 28. Moak V. Coats, 33 Barb. 498; Jackson v. Aipell, 20 Johns. 410, distinguished. Before assignment of dower, a widow has no estate in the lands of her husband ; her right is a mere chose in action. The receipt by the widow of one-third of the rent of the real estate, in lieu of dower, for several years after the death of her husband, does not constitute an assignment of dower, or bar her action therefor. To constitute an assignment of dower, by agreement or specific act of the widow, it should be clearly manifest that such was the in- tention. IV. DOWER. 163 1. NATURE OF THE ESTATE. 3. AFTER DECEASE OF HUSBAND. B. died intestate in 1849, seized of certain lands, and leaving a widow and two children. In 1855, the widow joined with her children in a lease of the premises for five years. J., one of the children, who was plaintiff's husband, died in 1859 ; he collected the rent under the lease up to his death, and the plaintiff after that time. After the expiration of the lease, the surviving child executed leases in her own name up to her death in 1866. She left a will devising her real estate to trustees ; these joined with the widow of B. and plaintiff in leases for terms not exceeding two years, by which three-ninths of the rent was made pay- able to the trustees, five-ninths to B.'s widow, and one-ninth to plaintiff. B.'s widow died in 1878. Action thereafter brought for the admeasure- ment of plaintiff's dower. Construction : The facts did not show an assignment of dower either to the widow of B. or to the plaintiff, and did not constitute a bar ; and plaintiff was entitled to dower in one-half of the real estate. Aikman v. Harsell, 98 N. Y. 186, aff'g 31 Hun, 634. A widow's dower right, although not admeasured, is an absolute right, which is assignable. When she assigns such dower right, taking back a mortgage upon the land to secure the consideration, her equities are the same as if she had conveyed the land and taken back the mortgage for the purchase price. The widow of an intestate, who died seized of certain premises, and leaving three children, his heirs at law, joined with one of the heirs in the conveyance of their interests to the other heirs, she taking a mort- gage upon the premises to secure the sum agreed to be paid her. Construction : The mortgage was, to the extent of the value of the dower right, a lien prior to a former judgment against one of the grantees upon the one-third which said grantee took by descent subject to such dower right. Pope v. Mead, 99 K Y. 201. Where a widow was also executrix, and, as such, one of the partners of the contract sale, and was made a party defendant in her individual, as well as her representative, capacity, in an action for specific performance by joining in the contract of sale, without any reservation therein of her dower right, she consented, so far as her individual rights were concerned, to make a good title to the purchaser and to look to the pur- chase money as a substitute for the land for her dower right therein. 164 VI. ESTATES FOE LIFE. 1. NATURE OF THE ESTATE. 3. AFTER DECEASE OP HUSBAND. Widow may dispose of her dower right before it is admeasured. Bostwick V. Beach et al, 103 N. Y. 414. A dower right, while uuassigued, is not a legal estate ia land, but it is a legal interest and constitutes property capable in equity of being sold, transferred and mortgaged. Mutual Life Ins. Go. v. Shipman, 119 K Y. 324. Where there is a sale of land subject to a right of dower, and also to a mortgage, which is assumed by the purchaser, payment of the mortgage by the purchaser may be compelled by the owner of the dower interest. Munroe v. Grouse, 59 Hun, 348. Where a wid ow who has a right of dower in certain premises, which has not been assigned, joins with the heirs in a lease thereof for a term of years, she becomes vested, as against the tenant, with all the rights of a lessor, and her title to the prem- ises and to the rents can not be disputed by him. In making the lease the widow consents to the undisturbed possession of the prem- ises by the tenant for the whole term, and must look to the rents reserved in the lease for the satisfaction of her right as doweress to one-third of the rents and profits of the land during the period of the lease. The fact that all the other lessors, the owners of the fee of the premises, have joined in a deed conveying the premises, does not prevent the maintenance of an ac- tion, by herself, or, in case of her death, by her administrator, to apportion and re- cover her share of the rents. In such case the owners of the fee, the plaintiff's co-lessors, who have conveyed their interest in the property, need not be made parties to the action. While a doweress out of possession can not lease, she may release, or for an annual payment agree not to enforce her right of dower, and thereby estop herself during the term from instituting proceedings to establish her dower interest. Where a widow is entitled, under such circumstances, to the rent of premises, the lease may be canceled and annulled by her acceptance of a parol promise upon the part of the grantee of the premises to pay her a certain sum monthly for her mainte- nance for life, and by the performance of the promise. Holmquiat v. Bavarian Sta/r Brewing Co., 1 App. Div. 347. Citing Ins. Co. v. Shipman, 119 N. Y. 334; 34 N. E. 177; Pope v. Mead, 99 N. Y. 301; 1 N. E. 671; Payne v. Becker, 87 N. Y. 158. A widow, by joining in a conveyance or mortgage of land in which she has a dower right, without reservation of her dower right, becomes estopped from claim- ing dower in the premises. Freiot v. La Fountain, 16 Misc. 158. Citing Payne v. Becker, 87 N. Y. 158; Bostwick v. Beach, 103 id. 414. 2. REQUISITES. 1. MARRIAGE A marriage contracted in this state was, in the year 1822, dissolved by the decree of the court of chancery on account of adultery by the husband, and afterwards, in 1825, and again subsequent to the 1st of January, 1880, during the lifetime of his former wife, a marriage was solemnized in due form within this state between him and the plaintiff, with whom he cohabited as his wife until his death in 1847. IV. DOWEB. 165 2. REQUISITES. 1. MARRIAGE. Construction : Bach of these marriages with the plaintiff was void, and she was not entitled to dower in the lands of which he died seized. Gropsey v. Ogden, 11 IST. Y. 228. Where a marriage has been annulled by a judicial decree, upon the ground that when it was contracted the husband had a former wife liv- ing, who had absented herself for more than five successive years imme- diately preceding the second marriage, without being known by him to be living, although until it was annulled it was voidable only and not void (2 E. S. 139, sec. 6), and the cohabitation of the parties was not adulterous, and although both parties entered into the marriage in en- tire good faith, yet the wife is not entitled to dower in the real estate owned by the husband at the date of the decree. Price v. Price, 124 N. Y. 589; rev'g 33 Hun, 76; distinguishing Wait v. Wait, 4 N". Y. 95; Jones V. ZoUer, 29 Hun, 551 ; 32 id. 280; 37 id. 228 ; 104 N. Y. 418 ; Brower v. Bowers, 1 Abb. Ct. App. Dec. 214 ; Griffin v. Banks, 37 JST. Y. 621. 3. SEIZIN. In ejectment for dower against a grantee of the husband by quit claim deed, or a person holding under such grantee, the defendant is not estopped from showing that the husband was not seized of such an estate in the premises as to entitle his widow to dower. Sherwood v. Vandenburgh, 2 Hill, 303 ; Bowne v. Potter, 17 Wend. 164, and other similar cases in the Supreme Court, considered and in this respect overruled. Sparrow v. Kingman, 1 IST. Y. 242. In ejectment for dower, against a person claiming the premises under a deed in fee from the plaintiff's husband, with full covenants, the defendant is not estopped from showing that the husband had but a leasehold estate in the premises. Fin v. Sleight, 8 Barb. 401. A widow is not dowable of land in which her husband has only a vested remainder, expectant upon estate for life. This rule holds as well where the estate of the husband comes by de- vise as by inheritance. The word " purchase," as used in Coke Litt. 31, in reference to this point is limited to a purchase by deed. Durando v. Durando, 23 N. Y. 331. A wife has no dower in an estate in remainder inherited by a husband. Clark v. Clark, 84 Hun, 362. Note. — See Eldridge v. Forrestal, 7 Mass. 253; and Beekman v. Hudson, 20 Wend. 53. 166 VI. ESTATES FOE LIFE. 2. REQUISITES. 8. SEIZIN. That husband must have been seized of a present freehold as well as of an estate of inheritance, and that seizin of a vested remainder is not sufficient, where husband dies or aliens his interest in the premises during the continuance of the particular estate, see, also, Dunham v. Osborn, 1 Paige, 634; Reynolds v. Reynolds, 5 id. 161; Matter of Cregier, 1 Barb. Ch. 598; Green v. Putnam, 1 Barb. S. C. 500; 4 Kent, 39, 40; Fearne on Rem., 5th ed., 85, 86; Park on Dower, 61, 78. Where a husband is seized of a vested remainder expectant upon an estate for life, subject to be defeated by his own death prior to that of the tenant for life, and he purchases the life estate, this is such a seizin as gives the wife dower subject to be defeated, as above. The husband can not alienate or encumber the estate to the prejudice of the wife's dower, nor is the same affected by the sale of the life estate upon exe- cution against the husband. House v. Jackson, 50 N. Y. 161. See, also, Beardslee v. Beardslee, 5 Barb, 824. Dower interest was lost through default in covenant to pay incumbrances. Burn- herr v. Bau, 60 Hun, 358. Inchoate right of dower under a conveyance upon conditions is defeated on the failure of the husband's title through non-performance of the conditions. Greene v. Reynolds, 73 Hun, 565. Where, by a deed, the grantor reserved a power to create a future es- tate in the land conveyed, the power, unless coupled with a trust, is not imperative, but its execution depends entirely upon the will of the grantor. It is only when a power is in trust that a court of equity will decree its execution. T., who was a widower, conveyed certain real estate to his children, reserving to himself a right to devise by will a life estate in one-third thereof to "any hereafter-taken wife." The grantor thereafter married, and died without executing the power. Construction : The widow was not entitled to any interest in the land ; the reserva- tion at most created a mere power, and so, tp be executed or not, at the pleasure of the grantor. As to whether the reservation can be treated as a power within the meaning of the Eevised Statutes (1 R S. 732, sec. 105), qucere. Towler v. Towler, 142 N. Y. 371, aff'g 65 Hun, 457. The position of a wife, in respect to her husband's property, is lim- ited by the Revised Statutes, and save as brought within those limita- tions she is without the right to assert any claim to it. To entitle a wife to dower, the husband must be seized either in fact or in law of a present freehold in the premises, as well as an estate of inheritance. IV. DOWER. 167 2. REQUISITES. 3. SEIZIN. Such a seizin can not be predicated with respect to lands purchased •with the moneys of the husband, but not conveyed or agreed to be con- veyed to him. Plaintiff's complaint alleged in substance that she was the wife of de- fendant, who, with intent to defraud her of her dower rights in his real estate, has purchased various pieces of land, the title to which he caused to be taken in the name of L., under a written agreement with the latter that defendant " should receive all the benefit of, and have control of said property ; " that defendant did exercise full possession and control of the same, and when sold, L., pursuant to the agreement, executed conveyances to bona fide purchasers having no notice of plaintiff's interest, defendant receiving the purchase money ; that all of the land so purchased, except one piece, had been thus sold and con- veyed. Plaintiff asked for a judgment adjudging the proceeds of such sales to be " still real estate, and that this plaintiff has an inchoate right of dower in the same," and that the piece unconveyed be adjudged sub- ject to her right of dower. Construction : The complaint did not set forth a cause of action ; and so, the over- ruling of a demurrer thereto was error. Phelps v. Plielps, 143 N. Y. 197, rev'g 75 Hun, 577. Widows are not dowable in the real estate of a copartnership while its affairs remain unsettled. Biddell v. Riddell, 85 Hun, 483. There is no dower in lands held in joint tenancy though otherwise of co-tenancy. Jourdan v. Haran, 34 J. & S. 185; 117 N. Y. 638. In absence of fraud there can be no claim of dower in property deeded away by the husband before marriage. Oakley v. Oakley, 69 Hun, 121, aff'd 144 N. Y. 637. Where no adverse possession is shown, a title vested in husband will constitute such seizin as is required to entitle widow to dower. Actual possession by the husband need not be proved. Melntyre v. Costello, 47 Hun, 389. A widow is not entitled to dower out of lands held under a contract of purchase, ■where the husband's interest has been aliened during coverture. Hioks v. Stebbins, 3 Lans. 89. The court considered itself bound by the authority of Hawley v. James, 5 Paige, 318, 453; s. c, 16 Wend. 61, though disagreeing with opinion there expressed. See Code Provisions, post, p. 203. Dower can not be had in estates pur autre me under 1 R. L. 365, sec. 4. Oillis v. Brown, 5 Cow. 389. A wife's right of dower attaches on the real estate of her husband as soon as there is a concurrence of marriage and seizin. Such right of dower will not be affected, or prejudiced, by any act of the husband subseauent to the marriage, or by any judgment afterward recovered against him. But it is liable to be defeated by every subsisting claim or incumbrance, in law or 168 VI. ESTATES FOR LIFE. 2. REQUISITES. 2. SEIZIN. equity existing before the inception of the title, and which would have defeated the husband's seizin. 1 R. S. 743, sec. 16. Previous to assignment, the right of dower of a married woman is a right resting in action only. She can neither convey nor assign it; and has no estate in the land. Scott V. Howard, 3 Barb. 319. Citing 4 Kent's Com. 50, 3ded; Green v. Putnam, 1 Barb. 506. Instantaneous seizin not sufficient to entitle wife to dower. Cunningliam v. Knight, 1 Barb. 399. See, also, Stehlin v. Golding, 15 St. Rep. 814. Five persons purchase real estate for joint benefit and sign an agreement that it shall be (which it is) taken in the name of one who is to hold and receive avails for joint account, until a sale and conversion into money. A bill ia filed for partition sale and account; the court decided that the widow of one of the five was not a necessary party, she having no right of dower. The court also held, that the wife of the party in whose name the property had been taken in trust had no inchoate right of dower. Coster V. Clarke, 3 Edw. Ch. 429 (1840). See, also. Cooper v. Whitney, 3 Hill, 95; Terrett v. Crombie, 6 Lans. 82. 3. DOWER IN LANDS EXCHANGED. Eeal Prop. L., sec. 171 (L. 1896, ch. 547, taking efifect Oct. 1, 1896). " Dower in lands exchanged. — If a husband seized of an estate of inheritance in lands, exchange them for other lands, his widow shall not have dower of both, but she must make her election, to be endowed of the lands given, or of those taken, in exchange ; and if her election be not evinced by the commencement of an action to recover her dower of the lands given in exchange, within one year after the death of her husband, she is deemed to have elected to take her dower of the lands received in exchange." 1 R. 8. 740, sec. 3, same, except "proceedings" instead of "action." The word "exchange" as used in the Revised Statutes, 1 R. 8. 740, sec. 3. is to re- ceive the same interpretation which is applied to it when used ut common law, in reference to that species of conveyance. In order to deprive the wife of her dower, therefore, in lands conveyed by her hus- band, or to put her to an election, under the provision of the statute, there must be a mutual grant of equal interests in the respective parcels of land; the one in consider- ation of the other. A transfer of a mere equitable interest in seventy five acres of land, derived under a lease in perpetuity, for eleven acres of land and $700 in other prop- erty, will not constitute a legal exchange. Wilaox v. Randall, 7 Barb. 6:^3. The reviser's note on this section (3 R. S. 596) is relied on to indicate that the object of the framers of the statute was to enact the common law rule which is found in 1 Cruise, 148, sec. 3, and 1 Inst. 31b. 4. DOWER IN LANDS MORTGAGED. 1. IN LANDS MOKTGAGBD BEFORE MARRIAGE. Eeal Prop. L., sec. 172 (L. 1896, ch. 547, taking effect Oct. 1, 1896). "Dower in lands mortgaged before marriage.— Where a person IV. DOWER. 169' *.DOWER IN LANDS MORTGAGED. 1. IN LANDS MORTGAGED BEFORE MARRIAGE. seized of an estate of inheritance in lands, executes a mortgage thereof before marriage, his widow is, nevertheless, entitled to dower of the lands mortgaged, as against every person except the mortgagee and those claiming under him." 1 R. S. 740, sec. 4, same. A wife is dowable of tlie equity of redemption in lands of whicli her husband was seized at the time of the marriage. Van Duyne v. Thayer, 14 Wend. 233; 8. c, 1& id. 163; Titus v. Neilson, 5 Johns. Ch. 453; Coles v. Coles, 15 Johns. 319; Bell v. New York, 10 Paige, 49. But where the mortgage is made before marriage, the wife can not, after foreclosur& or after release by the husband, recover her dower at law, though not made a party to the foreclosure proceedings; her remedy is in equity, to redeem. Smith v. Gardi- ner, 43 Barb. 356; Van Duyne v. Thayre, 19 Wend. 163; Cooper v. Whitney, 3 Hill, 95. 2. IN LANDS MORTGAGED AFTER MARRIAGE. Where the wife of a mortgagor has not joined in the mortgage and has an inchoate right of dower in the mortgaged premises, the making^ of her a party to an action of foreclosure, without allegations in the complaint that the mortgage is prior, superior or hostile to her interest, does not affect that interest nor does the general clause in the judg- ment foreclosing defendants of all right in the premises. Even with such allegations a judgment passing upon her rights is erroneous. A foreclosure action is not the proper mode to litigate rights claimed in priority or in hostility to the mortgage. Merchants Bank V. Thomson, 55 K. Y. 7. Dowereiss made party defendant in foreclosure, but not notified of proceedings to distribute surplus, is not concluded by order, but may recover her share from one taking it though he took it as trustee and she is in default in an action brought by him to settle trust. Mathews v. Duryee, 3 Abb. Ct. App. Dec. 220. Citing, Mills v. Van Voorhies, 30 N. Y. 413 ; also Hawley v. Bradford, 9 Paige, 300 ; Vartie v. Underwood, 18 Barb. 561. Mortgagee in possession— dower interest of the wife of a mortgagor not made a party to the foreclosure— right of the wife of flie mortgagor to redeem— time within which redemption must be made— must be claimed through the husband. Campbell V. Mlwanger, 81 Hun, 259. A widow has the right by virtue of her dower interest, to redeem from a mortgage to the foreclosure of which she was not a party. 81ieldon v. Hoffnagle, 51 Hun, 478. The effect of a judgment in an action of foreclosure upon a defendant claiming a. dower right prior to the lien of the mortgage— proper practice in such a case. See- Lanier v. Smith, 37 Hun, 539. A reconveyance to a husband of property which has been theretofore conveyed by a husband and wife by way of mortgage, restored the wife's right of dower as against a mortgage given back by the husband to the grantor. See Taylor v. Post, 30 Hun, 446. 23 170 VL ESTATES FOR LIFE. 4. DOWER IN LANDS MORTGAGED. 3. IN LANDS MORTGAGED AFTER MAEEIAGE. A grantee of the husband can not set up a mortgage which was a lien upon the premises at the time of the marriage against the widow's claim for dower. Bartlett V. Musliner, 38 Hun, 336. A widow, beiog an infant at the time of joining in the conveyance, may recover dower from the grantee, though he has bought in a purchase money mortgage to which the premises were subject. DeLiale v. Herbs, 35 Hun, 485. As to the computation of amount of mortgage from which the widow must redeem. See Baynor v. Baynor, 31 Hun, 36. The widow of the grantor (mortgagor) must tender the amount due, before she can obtain her dower. Westfall v. Westfall, 16 Hun, 541. The wife's inchoate right of dower in the husband's land follows the surplus moneys raised by a sale in virtue of the power of sale in a mortgage executed by her, with her husband, and will be protected against the claims of her husband's credi- tors, by directing one-third of the surplus moneys to be invested and the interest only to be paid to the creditors during the joint lives of husband and wife. Vartie v. Underwood, 18 Barb. 561. Citing, Denton v. Nanny, 8 Barb. 618. Plaintiif's husband, during coverture, conveyed lands to B., subject to mortgage thereon, executed by plaintiff's husband and wife, to 6., the former owner, to secure ■the purchase money, $1,600. At the time of the conveyance, plaintiff's husband had paid $400 on the mortgage. B. subsequently paid $1,300, the balance due upon the mortgage, and the mortgage was satisfied of record. The defendant was in posses- sion of the premises as a purchaser from a person deriving title from B. Construction: The plaintiff was entitled to dower in the premises, and she could recover the same in an action at law. Bunyand v. Stewart, 13 Barb. 587. The equity of redemption in mortgaged premises before entry or foreclosure, is equivalent to the estate in fee, descendible by inheritance, devisable by will, and alienable by deed. A widow is entitled to dower in an equity of redemption, as well when the mort- gage was executed before marriage as when it is executed afterwards, by the hus- band and wife during coverture. The widow as against the mortgagee and those claiming under him, is entitled in equity to redeem, upon payment of the mortgage debt. Benton v. Nanny, 8 Barb. 618. J. and McJ. were partners, and bought in a bouse to secure a debt due the firm, mortgaged it and failed in business. J. died intestate and McJ. assigned for benefit •of creditors. The mortgages were foreclosed and a balance of the funds remained in court. Construction: The widow of J. was entitled to a right of dower ; but having joined her husband in the mortgages, she now had an equitable right of dower in a moiety of the equity of redemption and balance in court. Smith v. Jackson, 3 Edw. Ch. 28 (1833). 3. IN LANDS MOETGAGED FOR PURCHASE MONEY. Real Prop. L., sec. 173 (L. 1896, ch. 547, taking effect Oct. 1, 1896). " Dower in lands mortgaged for purchase money. Where a IV. DOWER 171 4. DOWER IN LANDS MORTGAGED. 3. IN LANDS MORTGAGED FOB PUECHASE MONET. husband purchases lands during the marriage, and at the same time mortgages his estate in those lands to secure the payment of the pur- chase money, his widow is not entitled to dower of those lands, as against the mortgagee or those claiming under him, although she did not unite in the mortgage. She is entitled to her dower as against every other person." 1 R. S. 740, sec. 5, same. 1 R. S. 740, sec. 4, is not applicable to case of a purchase money mortgage. Cun- ningMm v. Knight, 1 Barb. 399. The wife of a mortgagor of land for the purchase money, whether she has or has not joined in the mortgage, had an inchoate right of dower in the equity of redemption which is not affected by a foreclo- sure to which he is not a party. The object of the statute (1 R. S. 741, sec. 5) was not to prescribe a different rule, but to prevent the claim of dower of a widow who did not unite in a purchase money mortgage from having preference to it. Mills V. Van Voorhies, 20 K Y. 412. See also Smith, v. Gardner, 43 Barb. 356. A statutory foreclosure and sale under a power of sale contained in a purchase money mortgage, bars the right of dower of the wife of the mortgagor, who was not a party to the mortgage. Although she does not derive title from her husband, yet she claims under him within the intent of the provisions of the Revised Statutes regulating mortgage sales under powers. 2 R. S. 745, sec. 8, as amended by the act of 1840, sec. 12, ch. 342, L. 1840. It is only by virtue of his seizin that she can claim, and her inchoate right is sub- ject to any claim to which the title he acquired was subject It is sub- ordinate to a purchase money mortgage, and subsequent to it in the order of priority ; and where it ripens into an actual title, upon the death of her husband, it is subsequent in point of time, Brackeit v. Baum, 50 JST. Y. 8. Real Prop. L., sec. 174 (L. 1896, ch. 547, taking effect Oct. 1, 1896). " Surplus proceeds of sale, under purchase money mortgages. Where, in a case specified in the last section, the mortgagee, or a per- son claiming under him, causes the land mortgaged to be sold, after the death of the husband, either under a power of sale contained in the mortgage, or by virtue of a judgment in an action to foreclose the mortgage, and any surplus remains, after payment of the money due on the mortgage and the costs and charges of the sale, the widow is 172 VI. ESTATES FOR LIFE. 4. DOWER IN LANDS MORTGAGED. 3. IN LANDS MORTGAGED FOR PUBCHASB MONET. nevertheless entitled to the interest or income of one-third part of the surplus for life, as her dower." 1 R. S. 741, sec. 6, same, "decree of court of equity," instead of "judgment In an action to foreclose." 4. IN LANDS OF A MOBTGAGBB. Eeal Prop. L., sec. 175 (L. 1896, ch. 547, taking effect Oct 1, 1896). " Widow of mortgagee not endowed. A widow shall not be endowed of the lands conveyed to her husband by way of mortgage, unless he acquires an absolute estate therein, during the marriage." 1 R. S. 741, sec. 7, same. 6. DOWER IN LANDS ALIENATED, Dower is to be based on the value of the land when elienated by the husband. Baynor v. Baynor, 31 Hun, 36. The dower which a widow is entitled to in lands aliened by the husband during the marriage is one-third of the value at the time of alienation, and no more. Walker V. Schuyler, 10 Wend. 480. Same under R. S. and R. L. and at common law. Citing Humphrey V. Phinney, 2 Johns. 484; Dorchester v. Coventry, 11 id. 510; see also Hall v. James, 6 J. Ch. 258 (1822); Hazen v. Thurber, 4 id. 604 (1820). 6. INCIDENTS OF THE ESTATE. Doweress is liable to contribute to payment of mortgage of husband in which she joined on land in which dower is assigned to her. Graham V. Linden, 50 N. Y. 547. A grantee's covenant to pay mortgages existing on land conveyed does not bind him to pay mortgages to protect dower interest of wife, who had joined in mortgages, although her dower interest was reserved in the deed. Durnherr v. Bau, 135 K Y. 219, aS'g 60 Hun, 358. Dower has priority over annuity. Clark v. Clark, 147 N. Y. 639. Action lies against tenant in dower committing waste. See Code Provisions, post, p. 300. In a case of equitable dower in land contracted to be purchased, the purchaser's widow has a right to have the purchase money paid out of the personal estate. Williams v. Kinney, 43 Hun, 1, afE'd 118 N. Y. 679. Taxes assessed and unpaid before the assignment of dower, is made, can not be charged upon the estate assigned, where there is personal estate suflBcient to pay tliem. Harrison v. Peck, 56 Barb. 251. Dower is due of iron or other mines wrought during coverture; but not of mines unopened at death of husband. If lands assigned for dower contain an open mine, tenant in dower may work it for her own benefit. Ooates v. OTieever, 1 Cow. 460. IV. DOWEB. 173 7. EXTINGUISHMENT. 1. BY RELKASB TO GRANTEE OF HUSBAKD. The marriage of a female mortgagee with the mortgagor, since the act for the protection of the rights of married women (ch. 200, of 1848), does not extinguish her right to action upon the mortgage. Where such mortgagee unites with her husband in a junior mort- gage of the same land, the act affects only her inchoate dower interest, but does not in the absence of words for that purpose impair her right to priority of lien. Power v. Lester, 23 N. Y. 527. The release by a wife of her inchoate right of dower operates only against her by way of estoppel ; it must accompany or be incident to a conveyance by another, and binds only in favor of those who are privy to and claim under the title created by that conveyance, and if the conveyance is void or ceases to operate, she is again clothed with the right which she has released. The case of the Manhattan Co. v. Evert- son, 4 Paige, 457, distinguished, and that of Meyer v. Mohr, 1 Eobt. 333, questioned. Malloney v. Horan, 49 N. Y. 111. Dower can not be extinguished by the committee of a lunatic. Matter of Dunn, 64 Hun, 18. Where a wife joins with her husband in a conveyance of his lands, which is properly executed by her, is effectual and operative against him, and is not superseded or set aside as against him or his grantee, her inchoate right of dower is thereby forever extinguished for all pur- poses and as to all pei'sons. Even if such a conveyance, at the time of its execution, only operates against her by way of estoppel, at the death of her husband her interest is released as effectually as if she had been a widow when the convey- ance was executed, and she can not assert it, even as against a stranger, to the grantee. Plaintiff joined with her husband in a deed of his lands upon which there were certain mortgages, which mortgages were foreclosed and the lands sold leaving surplus moneys, before the distribution of which the husband died. Construction : Plaintiff had no dower right in the surplus. Elmendorf v. Lockwood, 67 N. Y. 322. By joining in deed in order to release her dower, wife is not estopped from questioning its validity. Carpenter v. Osborn, 102 N. Y. 552. Defendants were tenants in common with W., whose interest, sold on judgment against him, was bought in by defendants and improved. Then plaintiffs, as subsequent judgment creditors of W., redeemed, 174 VI. ESTATES FOR LIFE. 7. EXTINGUISHMEKT. 1. BY RELEASE TO GKANTBB OP HUSBAND. brought an action for partition and the property was sold under judg- ment therein. The wife of "W., after tlie purchase by defendants and before the redemption, quit-claimed her inhcoate right of dower to the defendants. Construction : The said dower right remained in the plaintiffs' undivided half of the property, but was discharged as against the defendants' undivided half ; and in distributing the proceeds of sale, the value of such re- maining and undischarged dower right should be charged upon and paid for solely out of the share awarded to the plaintiffs. Ford v. Knapp, 102 N. Y. 135. Where a deed or mortgage, in which the wife has joined, is defeated by a sale on execution under a prior judgment, the wife is restored to her original position, and may, after her husband's death, recover dower in the lands. Einchcliffee v. Shea, 103 N. Y. 153, rev'g 34 Hun, 365. Fi'om opinion. — "The joinder by a married woman with her husband in a deed or mortgage of his lands, does not operate as to her by way of passing an estate, but inures simply as a release to the grantee of her husband of her future contingent, right of dower in the granted or mortgaged premises, in aid of the title or interest conveyed by his deed or mortgage. Her release attends the title derived from the husband, and concludes her from afterward claiming dower in the premises as- against the grantee or mortgagee, so long as there remains a subsisting title or Interest, created by his conveyance. But it is the generally recognized doctrine that when the husband's deed is avoided, or ceases to operate, as when it is set aside at the Instance of creditors, or is defeated by a sale on execution, under a prior judgment, the wife is restored to her original situation, and may, after the death of her husband, recover dower as though she had never joined in the conveyance. Robinson v. Bates, 3 Mete. 40 ; Malloney v. Horan, 49 N. Y. Ill ; KitzmuUer v. Van Rensselaer, 10 Ohio St. 63 ; Littlefield v. Crocker, 30 Me. 192." Action for dower must be brought within twenty years. See Code Provisions, poet. p. 188. When foreclosure sale bars widow's dower, see Code Provisions, post, p. 301. If a doweress takes no proceedings in her lifetime, the right of dower abates abso- lutely. Howell V. Newman, 59 Hun, 538. Where the release of her inchoate right of dower has been fraudulently obtained from a married woman, and a certain sum has been paid her in consideration there- for, she has three remedies. She may sue for the deceit, or she may sue in equity to rescind, or she may bring an action at law for an admeasurement of dower. Span- nocchia v. Loew, 87 Hun, 167. Where a widow had retained the consideration, given for her release of dower to the committee of her lunatic husband, for seventeen years and had not during that time made any claim, her right to dower was barred. Doremus v. Doremus, 66 Hun. 111. IV. DOWEE. 176 7. EXTINGUISHMENT. 1. BY RELEASE TO GRANTEE OF HUSBAND. When a covenant by a woman to release her right of dower may be enforced by a purchaser from the husband. See Carpenter v. Carpenter, 40 Hun, 263. The promise of husband to pay his wife for release of dower will be sustained, but. the rights of creditors will be protected beyond the value of the inchoate right of dower as ascertained by the rule in Jackson v. Edwards, 7 Paige, 408, Doty v. Baker, 11 Hun. 222. To the same effect is Smart v. Barring, 14 Hun, 376. What form of deed is sufficient to transfer inchoate right of dower. See Oillilan v. Swift, 14 Hun, 574. Release of dower is sufficient consideration to support promise by husband to wife, Foster v. Foster, 5 Hun, 557. Wife's release of dower to her husband, though pursuant to order of the court and acknowledged in due form, is a nullity, she being incompetent to execute an in- strument to him except in single case authorized by statute, i. e., sale of real property under judgment of partition, authorized by L. 1840, p. 128. Crain v. Cavana, 36 Barb. 410, afl'd 63 id. 109. See Code Provisions, post, p. 198. Where husband and wife execute a deed, and deposit it as an escrow, to be delivered on the execution of a bond and mortgage, the husband's consent to the delivery of the deed to the grantee, without a performance of the condition, will bind the wife. Ackert v. Pultz, 7 Barb. 386. Though, by articles of separation, a wife agrees to release her dower in her hus- band's lands, they are not thereby discharged unless she ratifies it after his death; and though she accepts and uses a pecuniary provision for her maintenance given in such an agreement she is not on that account prevented from claiming dower. A wife can not directly or indirectly release to her husband her dower right. Ouidet V. Brown, 3 Abb. K C. 295; s. c, 54 How. Pr. 409. Citing for last proposition, Carson v. Murray, 3 Paige, 483. a. By po"wer of attorney. Eeal Prop. L., sec. 187 (L. 1896, ch. 547, takitig effect Oct. 1, 1896). "Married women may release dower by attorney. A married woman of full age may release her inchoate right of dower in real property by attorney in fact in any case where she can personally release the same." L. 1893 ch. 599. "Any married woman of the age of twenty one years, or more, may execute, acknowledge and deliver her power of attorney for the release of her inchoate right of dower in real estate situated in this state, in all cases where such married woman may now execute such release.'' Release by married woman to her husband In partition, see Code Provisions, post, p. 198. A married woman, under the act of 1878 (L. 1878, ch. 300), auth- orizing her "to execute, acknowledge and deliver her power of attorney with like force and effect and in the same manner as if she were a sin- gle woman," may by such a power appoint her husband her attorney in fact. A married woman executed a power of attorney to her husband, em- 176 TI. ESTATES FOR LIFE. 7. EXTINGXJISHMENT. 1. BY KBajBASE TO GKANTEE OF HUSBAND. a. By power of attorney. powering him to sell and convey all lands belonging to her, and to exe- cute in her name " all necessary or proper deeds, conveyances, releases, releases of dower and thirds, and rights of dower," for conveying any " right, title and interest, whether vested or contingent, choate or in- choate therein." Construction : The husband was authorized to sign the name of his wife to a deed conveying real estate owned by him, and, too, to release her inchoate right of dower in the land Wronkow v. Oakley, 133 N. Y. 505. 2. BY KBLEASB OP DIVOBCBD WOMAN TO HER FORMER HUSBAND. Eeal Prop. L., sec. 186 (L. 1896, ch. 547, taking efiEect Oct 1, 1896). "Divorced woman may release dower. A woman who is divorced from her husband, whether such divorce be absolute or limited, or granted in his or her favor, by any court of competent jurisdiction, may release to him, by an instrument in writing, sufficient to pass title to real estate, her inchoate right of dower in any specific real property theretofore owned by him, or generally in all such real property, and such as he shall thereafter acquire." L. 1893, ch. 616 (repealing L. 1890, ch. 503). "In all cases where a husband or ■wife has been heretofore or may hereafter become divorced the one from the other, •whether said divorce be absolute or limited, or granted to either the husband or the -wife under the laws of this state or any other state or country, the said wife, against whom or in favor of whom said divorce has been or may be granted, is hereby authorized and empowered, upon receiving a consideration satisfactory to herself, to sell, convey and release by deed of conveyance or release duly signed, executed and acknowledged unto her said husband, from whom she has been divorced as aforesaid, all her inchoate right of dower of, in and to all the real estate of which her husband was seized at the time of the granting of said divorce, and all her inchoate right of dower of, in and to any and all real estate that he has since that time acquired, and in which she would or might have a right of dower or inchoate right of dower, and upon the execution and delivery and recording of said conveyance or release, together with the filing or recording in the proper county, a certified copy of the judgment or decree granting said divorce, all the lands and real estate of which the said husband was seized at the time of the granting of said divorce, or at any time subsequent, or lands which he may at any time acquire after the execution and recording of said conveyance or release as aforesaid, shall forever be released and discharged from any and all right of dower, or inchoate right of dower, claim or demand as wife or widow of said divorced husband." L. 1890, ch. 503— same as L. 1893, ch. 616, except that it is retrospective only while the L. 1893, ch. 616, renders the provision prospective, as well by inserting the words ' ' or may hereafter " after the words ' ' has been heretofore " and the words ' ' or may be " after the words " divorce has been.'' rv. DOWER. 177 7. EXTINGUISHMENT. 3. BY RKLBASB OF DITORCBD WOMAN TO HER FORMER HUSBAND. After an absolute divorce procured by a wife, she may release her dower rights to her husbaud. Samge v. CriU, 19 Hun, 4, afE'd 80 N. Y. 630. 3. BY FORFEITURE FOR MISCONDUCT. Real Prop. L., sec. 176 (L. 1896, ch. 547, taking effect Oct. 1, 1896). " When dower barred bj misconduct. In case of a divorce, dissolving the marriage contract for the misconduct of the wife, she shall not be endowed." J R. S. 741, sec. 8, same. 1 R. L. 58, sec. 7(L. 1787, ch. 4, repealed L. 1828, second meeting, ch. 21, sec. 1, par. 8) reads: "If a wife willingly leave her husband and go away and continue with her adul- terer, and be thereof convicted, she shall be barred forever of action to demand her dower that she might have had of her husband's lands, unless her husband willingly be reconciled to her and permit her to dwell with him; in which case she shall be re- stored to her action of dower." By same act (L. 1787, ch. 4 — 1 R. L. 58, sec. 7, repealed L. 1838, second meeting, ch. 21), it is provided that if a woman be ravished and consent to the ravisher, neither shall be entitled to any inheritance, dower or jointure, and those who would be enti- tled on their death may enter and hold. 1 R. L., ch. 102, sec. 8, repealed L. 1838, second meeting, ch. 21, sec. 1, par. 188, wife convicted of adultery not entitled to dower in complainant's real estate. Plaintiff's inchoate right of dower not affected by judgment dissolving marriage See Code Provisions, post, p. 301. Defendant's dower right extinguished by judgment dissolving marriage. See Code Provisions, post, p. 201. A divorce dissolving the marriage contract on the ground of the adultery of the husband, does not deprive the wife of her dower in his real estate. The effect of a divorce at common law and under our statutes is discussed. Wait v. Wait, 4 N. Y. 95. A wife can only be barred of dower by a conviction of adultery, in an action for divorce, and by the judgment in such action. 1 R. S. 741, sec. 8; 2 R. S. 146, sec. 48. An admission or proof of adultery or a verdict or judgment in any other action, will not work a forfeiture. A cohabitation by the husband with the wife after the commission of adultery by her, with knowledge of the fact, condones the offense and is an absolute l3ar to an action for divorce, and an action can not be maintained merely to establish the fact that the offense, which has thus been blotted out, has been committed in order to attach the penalty of forfeiture of dower to the offending wife. Pitts v. Pitts, 62 N. Y. 693. 33 178 VI. ESTATES FOR LIFE. 7. EXTINGUISHMENT. 3. BY rORFBITURB FOR MISCONDUCT. In an action of divorce a vinculo brought by a husband against his wife, the referee found the wife guilty of the adultery charged, but also found the. husband guilty of the same oEEense, and thereupon a judg- ment was entered dismissing the complaint. Construction : The wife had not lost her right of dower ; this possibility of dower affected the title to lands deeded by the husband, she not having joined in the deed or in any manner relinquished her right ; and 'a vendee who had contracted to purchase and pay for the premises upon delivery of a deed assuring to him the fee, clear of all incumbrances, was not required to accept such title. Schiffer v. Pruden, 64 N. Y. 47, aff'g 7 J. & S. 167. A decree dissolving a marriage for a cause not regarded as adequate by the laws of this state, rendered in another state by a court having jurisdiction of the subject and the parties, in an action brought by the husband, will not deprive the wife of her then existing dower rights in lands in this state; at least, in the absence of evidence that, under the laws of the state where it was rendered, it has that effect. As to whether, even with such evidence, it will have the same effect in this state, qucere. The word " misconduct,'' in the provision of the Revised Statutes (1 R S. 740, sec. 1), declaring that "in case of divorce dissolving the marriage contract for the misconduct of the wife she shall not be endowed," refers, not to any act which may be termed misconduct or converted into a cause of action by the legislature of another state but only to that kind of misconduct which our laws recognize as sufl&cient to authorize a divorce — -that is, adultery. It seems, the provisions of the Code of Civil Procedure (sees. 1756, 1760), providing that where judgment is rendered, at the suit of the husband, dissolving the marriage, the wife shall not be entitled to dower, were substituted for the provisions of the Revised Statutes (2 R. S. 146, sec. 48) declaring that " a wife being a defendant in a suit for a divorce brought by her husband, and convicted of adul- tery, shall not be entitled to dower," and the repeal of the latter pro- vision (sec. 1, subd. 4, chap. 245, L. 1880) left the law unchanged. Van Chaf^. Burns, 118 N. Y. 549 ; rev'g 43 Hun, 461 ; see 133 K Y. 540. The "misconduct" which under the Revised Statute (1 R. S. 741, sec. 8) deprives a wife, divorced because thereof, of her right of dower, is only IV. DOWER. 179 7. EXTINGUISHMENT. 3. BY FOSFBITUKB FOR MISCONDUCT. that kind of misconduct which under our laws is a ground for divorce, i. e., adultery. The effect which a judgment of divorce, granted in another state, has upon the lands of the husband in this state is to be determined, not by- its laws, but by the laws of this state. A husband obtained a divorce in another state on the ground of his wife's abandonment of him. Construction : The wife was not thereby deprived of her then existing dower rights in the lands of her husband in this state, although the effect of the decree under the statutes of the state where it was rendered, was to deprive her of dower. Van Gleaf v. Burns, 133 N. Y. 540, rev'g 62 Hun, 250 , former appeal, 118 K Y. 549. a. Forfeiture of pecuniary provision in lieu of doTver. Eeal Prop. L., sec. 182 (L. 1896, ch. 547, taking effect Oct. 1, 1896). " When provision in lieu of dower is forfeited. Every jointure, devise and pecuniary provision in heu of dower is forfeited by the woman for whose benefit it is made in a case in which she would forfeit her dower, and on such forfeiture, and estate so conveyed for jointure, or devised, or a pecuniary provision so made, immediately vests in the person or legal representatives of the person in whom they would have vested on the determination of her interest therein, by her death." 1 R. 8. 743, sec. 15, same. 4. BY EXEECISB OF THE BIGHT OF EMINENT DOMAIN. Where, in pursuance of an act of the legislature, lands are taken by a municipal corporation for a public use, upon an appraisement and payment of their value to the holder of the fee, the corporation acquires an absolute title to them, divested of any inchoate right of dower exist- ing in his wife. The inchoate right of dower of a married woman exists not as a part of the marriage contract, but as a positive institution of law incident to the marriage relation. It is not an estate, but a mere contingent claim, not capable of sale on execution, nor the subject of grant or assignment. The estate of a widow after the assignment of her dower is a continu- ation of the estate of her husband (Cruise Dower, T. 6, ch. 2, sec. 17), a part of the fee he held while living, and this is entirely divested by the proceedings to appropriate the land to public use. 180 VI. ESTATES FOR LIFE. 1. EXTINGUISHMENT. 4. BY EXERCISE OF THE EIGHT OF EMINENT DOMAIN. The land of the plaintiff's husband was, during her marriage, taken by the corporation of New York for a public market, under ch. 75 of the law of 18 L7. The proceedings to acquire it were regular. Construction: The corporation acquired the absolute fee, discharged of her claim of dower. Moore v. The Mayor, 8 N. Y. 110. Note. Before assignment of dower, the widow has no estate, but a mere right in action, or claim which can not be sold upon execution. 2 Corns. 354; Q-reenleaf 's Cruise Dig. Title Dower, ch. 3, sec. 1, note; Gooch v. Atkins, 14 Mass. 378. (p. 113.) Where real property belonging to a married man is taken during coverture by the exercise of the right of eminent domain, an absolute title is acquired divested of any right of dower existing in his wife, but as between the wife and her husband the in- choate rights of the wife are not extinguished, but must be recognized and protected. Matter of STew York and Brooklyn Bridge, 89 Hun, 319. 5. ACT OP HUSBAND. Real Prop. L., sec. 183 (L. 1896, ch. 547, taking effect Oct. 1, 1896). "Effect of acts of husband. — An act, deed or conveyance, executed or performed by the husband without the assent of his wife, evidenced by her acknowledgment thereof, in the manner required by the laws to pass the contingent right of dower of a married woman, or a judgment or decree confessed by or recovered against him, or any laches, default, covin, or crime of a husband, does not prejudice the right of his wife to her dower or jointure, or preclude her from the recovery thereof." 1 R. S. 742, sec. 16 — same, except "estate of married women" used instead of "con- tingent right of dower of a married woman"; and the phrase "if otherwise entitled thereto" is added at the end of ihe sentence. 1 R. L. 57, 59, sees. 4, 10 (L. 1787, ch. 4), (repealed L. 1828, second meeting, ch. 21, sec. 1, par. 8). By sec. 4, it is provided that wife shall have dower in lands recov- ered against the husband by covin, or default. By sec. 10 it is provided that, the at- tainder of the husband shall be no bar to dower. 1 R. L. 60 (L. 1806, ch. 17) (this statute was not revised by R. S.) provides that no widow whose husband was convicted and attainted of adhering to the enemies of this state uilder L. 1779, ch. 25, sec. 3, shall be endowed of lands held at the time of conviction or before, with a provision that claims of widow whose husband died before passing of this (L. 1806, ch. 17) act shall not be affected. 8. BARRMENT. 1. BY JOINTDKB. Real Prop. L, sec. 177 (L. 1896, ch. 547, taking effect Oct. 1, 1896). "When dower barred by jointure. — Where an estate in real property is conveyed to a person and his intended wife, or the intended wife alone, or to a person in trust for them or for the intended wife alone, for the IV. DOWER. 181 8. BABRMENT. 1. BY JOINT 0KB. purpose of creating a jointure for her, and with her assent, the jointure bars her right of claim of dower in all the lands of the husband. The assent of the wife to such a jointure is evidenced, if she be of full age, by her becoming a party to the conveyance by which it is settled; if she be a minor, by her joining with her father or guardian in that convey- ance." 1 R. S. 741, sees. 9, 10, same. 1 B. L. 58, sec. 8 (L. 1787, ch. 4, repealed by L. 1828, second meeting, ch. 21, sec. 1, par. 8), provides tliat where a jointure is created for a wife, slie shall not have dower of her husband's lands, but if lawfully evicted from her jointure she shall be endowed to the amount lost by the eviction. A woman can only relinquish her dower by receiving a jointure as provided in sec- tions 9-13 of 3 Revised Statutes (6th ed), 1121, 1122. Ennis v. Ennis, 48 Hun, 11. An antenuptial agreement, not to claim dower will not be sustained unless founded on the consideration of some provision in lieu of dower; the marriage is not sufficient consideration. Ourry v. Garry, 10 Hun, 366. 3. BY PECUNIARY PROVISION. Eeal Prop. L., eec. 178 (L. 1896, ch. 547, taking effect Oct. 1, 1896). "When dower barred by pecuniary provisions. — ^Any pecuniary pro- vision, made for the benefit of an intended wife and in lieu of dower, if assented to by her as prescribed in the last section, bars her right or claim of dower in all the lands of her husband." 1 R. S. 741, sec. 11, same. 9. ELECTION. 1. BETWEEN JOmTTJEE AND DOWEK. Eeal Prop. L., sec. 179 (L. 1896, ch. 547, taking effect Oct. 1, 1896). " When widow to elect between jointure and dower. If before the mar- riage, but without her assent, or, if after the marriage, real property is given or assured for the jointure of a wife, or a pecuniary provision is made for her, in lieu of dower, she must make her election whether she will take the jointure or pecuniary provision, or be endowed of the lands of her husband ; but she is not entitled to both." 1 R. 8. 641, sec. 12, same. 1 R. L. 58, 59, sees. 8, 9 (L. 1787, ch. 4), (repealed Ti. 1838, second meeting, ch. 21, sec. 1, par. 8). The element of consent does not seem to enter. By sec. 8 a jointress is barred of dower unless lawfully evicted from her jointure. But by sec. 9 where the jointure is given after marriage she is allowed an election. In an action to recover dower it appeared that plaintiff, during the lifetime of her husband, who had been declared a lunatic, and a com- mittee of his estate appointed, entered into a contract with the commit- tee and the children of her husband, and executed to them a deed, by 182 VL ESTATES FOB LIFE. 8. ELECTION. 1. BBT-WBBN JOINTURE AlTD DOWBK. which, in consideration of the receipt by her of about one-third of her husband's property, she released all interest in his estate, including " her inchoate right of dower (if any exists), of, in and to any and all real estate," and also covenanted at any future time, on demand, to execute all necessary deeds, releases or transfers, to carry out the intention of the parties, " namely, the full and perfect release " of her " inchoate and other rights in the property " of her husband, which she had or might have at the time of the death, and she also covenanted not to make any claim therefor on the death of her husband. Construction : Plaintiff was not entitled to dower; there was, under the agreement and within the meaning of the Eevised Statutes (1 R. S. 741, sees. 12, 13, 14), a pecuniary provision made in lieu of dower ; and, as plaintiff had retained that provision and never offered to return it, she must be deemed to have elected to keep it in lieu of dower. Also, while the agreement and deed did not operate as a present release of her inchoate right of dower, as under the agreement she re- ceived a separate estate, it was obligatory upon her, and she was bound to release her dower; it was immaterial that defendants did not then own the land in which dower is claimed ; they were competent to make a contract for the benefit of the land when their interest should come into existence. Jones v. Fleming, 104 N.Y. 418, rev'g 37 Hun, 227. 2. BETWEEN DEVISE AND DOWBK. Real Prop. L., sec. 180 (L. 1896, ch. 547, taking effect Oct. 1, 1896). "Election between devise and dower. — If real property is de- vised to a woman, or a pecuniary or other provision is made for her by will in lieu of her dower, she must make her election whether she will take the property so devised or the provision so made, or be endowed of the lands of her husband ; but she is not entitled to both." L. 1895, ch. 1032, sec. 1 (taking effect June 14, 1895, repealing L. 1895, ch. 171 and re-enacting 1 R. S. 741, sec. 13), same, except that the last sentence "but she is not entitled to both " is omitted. L. 1895, ch. 171, sec. 1 (taking effect Jan. 1st, 1896, amending 1 R. S. 741, sec. 13), same, and also forces an election where lands are inherited from husband ; also last sentence omitted. (Repealed by Real Prop. L., § 300.) 1 R. S. 741, sec. 13, same, except that the last sentence "but she is not entitled to both " is omitted. Under the provisions of the Eevised Statutes a widow's action of eject, ment for dower must be brought against the actual occupant of the land IV. DOWEB. 183 9. ELECTION. 2. BETWEEN DEVISE AND DOWER. of which she is dowable, and not as in the former action of dower against the tenant of tiie freeliold. Where she is entitled to dower in a block of lots in a city, the action may be maintained against the occupant of a single floor of a store erected upon one of them who has hired it of the owner for a single year. But a judgment against him would not bind his landlord. {Semble, per Ruggles, Ch. J.) The receipt by her for several years after the death of her husband in lieu of dower, of one-third of the rent of lands leased by him will not bar her action. It is not necessary that she demand her dower before bringing her action. Mlieott v. Hosier, 7 N. Y. 201. Where, by an antenuptial agreement, a provision is made that the husband shall provide by will for an annuity for his widow for her life, with an interest in a certain part of his real estate, in lieu of dower or any portion of his estate, and the husband by will gives her an imnuity only during her widowhood, he has failed to perform upon his part, and his widow is not precluded from claiming the property which by the statutes is to be inventoried without appraisal and set apart for her use. A provision in the will of a husband in favor of the wife, will never be construed by implication to be in lieu of dower or the interests the law may give her in the personal property not, disposed of by him. In such a case, the fact that she is in possession of the real estate and some personal property held by her before marriage, and secured to her by the agreement, claiming co hold them under it, will not prevent her from asserting her right. Sheldon v. Bliss, 8 N. Y. 31. A widow has the right to elect whether she will accept a provision made for her in her husband's will or claim her dower ; her election is not binding unless made with full knowledge of the nature and extent of the estate. Hindley v. Hindley, 29 Hun, 318. The fact that a general legacy of bank stock is made to a widow in lieu of dower, will not give .her the income which may have accrued upon such stock from the time of the testator's death until his transfer to her. Tifft V. Porter, 8 N. Y. 516. A devise of the testator's whole estate to his widow for life, with remainders over, is not a provision in lieu of dower, unless such inten- tion be implied from other terms of the will, and the widow may take one third of the estate as doweress and the residue as devisee. A claim of dower in premises so devised is not barred by a fore- 184 VI. ESTATES FOR LIFE. 9. ELECTION. 2. BETWEEN DEVISE AND DOWER. closure and sale under a mortgage executed by the husband alone dur- ing coverture, although the widow was made a party to the foreclosure suit, and the bill, which was taken as confessed against her, alleged, in pursuance of the one hundred and thirty-second rule of the late court of chancery, that she claimed some interest in the premises " as subse- quent purchaser or incumbrancer, or otherwise." A decree against defendants, made parties under such general allega- tion, bars rights and interests in the equity of redemption, but not those which are paramount to the title of both mortgagor and mort- gagee. Lewis V. Smith, 9 K Y. 502 ; see II Barb. 152. KoTE. — Where there is no direct expression of intention that the provision shall be in lieu of dower, the question always is, whether the will contains any provision inconsistent with the assertion of a right to demand a third of the lands, to be set out by metes and bounds. 1 Roper on Husband and Wife, 576. The devises in a will must be so repugnant to the claim of dower that they can not stand together. 4 Kent's Com. 58 ; Adsit v. Adsit, 3 Johns. Ch. R. 448 ; Wood v. Wood, 5 Paige, 596; Fuller V. Yates, 8 id. 335 ; Sanford v. Jackson, 10 id. 366 ; Bull v. Church, 5 Hill, 206 ; B. c, in error, 3 Denio, 430. (P. 511-512.) A provision was construed inconsistent with a claim of dower in Dodge v. Dodge, 31 Barb. 413 ; Sullivan v. Mara, 43 id. 533 ; Starr v. Starr, 54 Hun, 301. A provision was construed consistent with a claim of dower in Bond v. McNi£E, 9 J. & S. 543 ; s. c, 6 id. 83 ; Bull v. Church, 5 Hill, 306 ; s. c, 3 Den. 130 ; Lasher V. Lasher, 13 Barb. 106. The testator not having declared in express terms, that the provisions made by his will for his'widow are given in lieu of dower, she is not put to her election, unless the devises of the will are so repugnant to the claim of dower that they can not stand together. Lewis v. Smith, 9 K Y. 502 ; Bull v. Church, 2 Denio, 430 ; Jackson v. Churchill, 7 Cow. 287 ; Savage v. Bumham, 17 K Y. 562. Where the executors are clothed with full power and authority to rent, lease, repair and insure the estate during any period of time it shall remain unsold and undivided, they are vested with the legal title thereto. The claim of dower is inconsistent with the provisions of a will which requires the executors to rent, lease, repair, etc., the estate out of which the money is to be raised to pay the bequest to the widow, and, therefore, the widow can not claim under the provisions of the will without relinquishing her right of dower in such premises. Tobias v. Ketchum, 32 K Y. 319. The acceptance of an annuity expressed to be in lieu of dower barred the claim of dower. Hatch v. Bassett, 52 N. Y. 359, digested p. IV. DOWER. 185 9. ELECTION, 2. BETWEEN DEVISE AND DOWKB. Power to sell real estate not devised to widow and to invest proceeds for her was inconsistent with her dower right therein, and her accept- ance of the devise barred dower. Vernon v. Vernon, 53 N. Y. 351. Devise construed to be in lieu of dower. Le Fevre v. Toole, 84 N. Y. 95. The will gave wife one-third of the estate. It was not stated to be in lieu of dower or other claim. The residuary bequest was declared void. The testator died intestate as to such portion as was not validly disposed of, and the acceptance by wife of provision for her was not a waiver of her right to share in the distribution thereof under the statute of distribution. Lefevre v. Lefevre, 59 N. Y. 434. Citing Vernon v. Vernon, 53 N. T. 351, 862; Pickering v. Stamford, 8 Ves. 332 ; s. C, id. 492; Hoes v. Van Hoesen, 1 Barb. Ch. 379. By an antenuptial agreement, the woman covenanted, that, if, after marriage, the man died first, she would accept $1,500 " in full satisfac- tion of her dower in his estate, and shall bar her from claiming the same, either in his real or personal estate." He covenanted to provide by will for the payment of that sum " in lieu of dower, or her rights as his widow in his estate." The man died after marriage, having made provision by will, as cove- nanted. Construction : The agreement was valid and remained in full force after marriage ( L. 1849, ch. 375, sec. 3); the woman took nothing as widow from her husband's estate, and there being no children of such marriage living, the widow was not entitled to the specific articles given by the statute (2 E. S. 83, sec. 9) to a widow; the surrogate, on application of the widow to compel the executor to set apart the said articles for her, had jurisdiction to determine the question. Mailer of the Estate of Young v. Hichs, 92 K Y. 235, aff'g 27 Hun, 54. W., by will, gave to his widow "all of the household property in the dwelling-house and the use of the dwelling-house during her life." In the dwelling-house there was, at testator's death, a quantity of coal and wood, provided for family use, and a shot gun. Construction : These articles were properly allowed the widow. The gift of household property did not preclude executors from set- 24 186 VI. ESTATES FOR LIFE. 9. ELECTION. 3. BETWEEN DEVISE AND DOWER. ting apart as exempt and for the use of the widow, a horse, phaeton and harness, of the value of $150. The will directed the executors to expend a sum not exceeding $2,000 " in repair " of a cemetery lot This authorized a sarcophagus for tedtator's remains at the expense of $500, and the monument to be re- placed, headstones erected, coping replaced, etc. The residuary estate, including the homestead in which his wife was given a life estate, W., the testator, gave to his wife, H. and W. in equal proportions. The executors, at request of widow and H., expended $320 in repair of the premises and properly charged same to them. The acceptance by widow of the provisions of the will did not preclude her from her dower right. Matter of Accounting of Frazer, 92 N. Y. 239. From opinion. — " Finally,lt is objected that the widow was not entitled to dower because the provisions for her benefit under the will were accepted by her, and dower was excluded by the manifest intention of the testator derived from the scope and tenor of the will. No trust estate was vested in the executors. They had simply a power of sale wiSi no right to rent or lease, and no control over the rents and profits. No duty relating to the real estate was imposed upon them except to sell and convey. Dower, therefore, was not excluded by the creation of a trust estate inconsistent with it, vested in the executors. Savage v. Burnham, 17 N. Y. 561; Tobias v. Ketchum, 32 id. 327. The provision giving the rest, residue and remainder of his property to the widow and the McDonalds is not inconsistent with dower, for it relates to the di- vision of his estate, and does not purport to dispose of hers. The two may stand together. The intention manifest in the will was not an equal division of all his prop- erty among the three, as in Chalmers v. Storil, 2 Ves. & Bea. 222, a case shaken by subsequent criticism. Gibson v. Gibson, 17 Eng. L. & Eq. 349. But the equal di- vision aimed at is of a residue which may well be deemed the remainder of the prop- erty subject to the dower right. Havens v. Havens, 1 Sandf. Ch. 334; Mills v. Mills, 38 Barb. 456. The repugnancy, therefore, which drives the widow to an election must come, if at all, from the provision for the support of testator's brother, those di- recting a sale, and that devising a house and lot to Mrs. Carr. It is conceded that the support of the brother was simply charged upon the McDonald farm, which was not to be sold. The existence of such a charge does not necessarily exclude the widow's dower in the same land, especially since the executors are also directed to reserve in their liauds sufficient of testator's property for the purpose of that support. The de- vise to Mrs. Carr and the direction to sell and convey a part of the real estate do not necessarily conflict with the right of dower in the present case. Jackson v. Churchill, 7 Cow. 387; Havens v. Havens, supra; Puller v. Yates, 8 Paige, 335. Directions for a sale may be so expressed and the purpose to be answered of such peculiar character as to indicate an intention to exclude dower. Vernon v. Vernon, 53 N. Y. 363. But no unusual or peculiar state of facts exists in the present case to compel an inference that the property directed to be conveyed was to pass free and discharged from the widow's dower." Z., by will, after directing payment of debts, funeral expenses, etc., gave to his wife during her life " the rents, income, interest, use and IV. DOWER 187 9. ELECTION. 2. BETWEEN DEVISE AND DOWER. occapancy" of all his estate, real and personal, upon condition that she keep the buildings and personal property insured, pay all taxes and as- sessments, and keep said estate in good repair. Construction : The provision was inconsistent with the assertion of a dower right, and so must be construed as in lieu of dower ; the widow having ac- cepted the provision so made, she could not thereafter claim dower. Lewis V. Smith, 9 N. Y. 502. Widow is not of right entitled to a gross sum for value of her life es- state in surplus on foreclosure, pursuant to rule 71 ; as, except in cases of dower (subd. 3, sec. 2793, Code of Civ. Pro.), the question rests in the discretion of the court. Such rule simply provides for the manner of estimating the gross sum. In the Matter of Zahrt, 94 N. Y. 605. Bequest in lieu of dower is not liable for debts. Dunning v. Dunning, 83 Hun, 462. Equitable lien upon the property of the grantor of an annuity in lieu of dower, as against his creditors, the property upon which it is given must be described with cer- tainty. Mundy v. Munson, 40 Hun, 304. Legacy in lieu of dower abates, like other legacies, is not a charge upon the real estate, and has preference over other legacy. Sanford v. Sanford, 4 Hun, 753. Provision in will for wife declared that it should be " accepted and received by her in lieu of and in bar of her dower. This acceptance pre- cluded her from sharing in lapsed legacies. Matter of Accounting of Benson, 96 K Y. 499, digested p. 1562. Provisions in lieu of dower become inoperative on refusal of widow to accept the same. Bailey v. Bailey, 97 N. Y. 460, digested p. 447. The will of S., who died leaving both real and personal estate, after providing for the payment of his debts and giving certain specific lega- cies, gave his residuary estate to his executors to sell and dispose of the same and divide the proceeds equally between his " wife and children, share and share alike." Construction : The widow was not put to her election, but was entitled to dower in addition to the provision made for her in the will ; the devise to the executors was void as a trust, but valid as a power in trust, and the lands descended to the heirs, subject to the execution of the power, 1 R S. 729, sec. 56 ; Cooke v. Piatt. 98 K Y. 35, and the execution of such power was not inconsistent with a dower interest, but a sale would be subject thereto. 188 VI. ESTATES FOB LIFE. 9. ELECTION. 3. BETWEEN DEVISE AND DOWEB. Dower is never excluded by a provision for the wife, except by ex- press words or necessary implication. Where there are no express words, there must be on the face of the will a demonstration of the in- tent of the testator that the widow shall not take both dower and the provision. Such demonstration is furnished only where there is a clear incompatibility, arising on the face of the will, between a claim of dower and a claim to the benefit of the provision. The intention to put the widow to an election between dower and the provision may not be inferred from the extent of the provision, or be- cause she is devisee for life or in fee, or because it might seem to the court unjust as a family arrangement to permit her to claim both, or because it might be inferred that, had the attention of the testator been called to it, he would have expressly excluded dower. Eonvalinha v. Schlege\ 104 N. Y. 125, a£E'g 39 Hun, 451, distinguish- ing Savage v. Burnham, 17 N. Y. 561 ; Tobias v. Ketchara, 32 id. 319. From opinion. — "We repeat, the only sufficient and adequate demonstration wliich, in the absence of express words, will put the widow to her election, is a clear incompatibility, arising on the face of the will, between a claim of dower and a claim to the benefit given by the will. We cite a few of the cases in this state showing the general principle and the wide range of application. Adsit v. Adsit, 3 J. Ch. 449 ; Sanford v. Jackson, 10 Paige, 366 ; Church v. Bull, 3 Den. 430 ; Lewis v. Smith, 9 N. T. 503 ; Fuller v. Yates, 8 Paige, 335 ; Havens v. Havens, 1 Sandf. Ch. 334, 331 ; Wood v. Wood, 5 Paige, 596. * * * It seems to be supposed that there is a necessary repugnancy between the existence of a trust in real property created by a will, and an outstanding dower interest of a widow in the trust property. We per- ceive no foundation for this contention. If the purpose of a trust, as declared, require that the entire title, free from the dower interest of the widow, should be vested in the trustees in order to effectuate the purposes of the testator in creating it, a clear case for an election is presented. Vernon v. Vernon, 53 N. Y. 351. But the mere creation of a trust for the sale of real property and its distribution is not incon- sistent with the existence of a dower interest in the same property. There is no legal difficulty in the trustee executing the power of sale, but the sale will necessarily be subject to the widow's right of dower, as it would be subject to any outstanding interest in a third person, paramount to that of the trustee. In the cases of Savage V. Burnham, 17 N. Y. 561, and Tobias v. Ketcham, 33 id. 319, the widow was put to her election, not because the vesting of the title in trustees was per se inconsistent with a claim for dower, but for the reason that the will made a disposition of the income, and contained other provisions which would be in part defeated if dower was insisted upon. There is language in the latter case, which, disconnected with the context, may give color to the contention of the appellant. But it is the prin- ciple upon which adjudged cases proceed, which is mainly to be looked to, because a correct principle is sometimes misapplied. There is, however, no ground for mis apprehension of the meaning of the learned judge in that case, interpreting his language with reference to facts then under consideration. It has frequently been declared that powers of, or in trust for sale, are not inconsistent with the widow's right of IV. DOWER. 189 9. ELECTION. . 2. BETWEEN DEVISE AND DOWER. dower. Gibson v. Gibson, 17 Eng. L. and Eq. 349 ; Bending v. Bending, 3 Kay & J. 257; Adsit v. Adsit, sa^m; In re Frazer, 93 N. Y. S39. And it was held in Wood V. Wood, 5 Paige, 596, that the widow was not put to her election where the testator devised all his property to trustees with a peremptory power of sale, and directed the payment to the widow of an annuity out of the converted fund. The same conclusion was reached under very similar circumstances in Fuller v. Yates, 8 Paige, 335, and la re Frazer, mtpra, the widow's dower was held not to be excluded by a provision in the will, although as to a portion of the realty the power of sale given to the executors was peremptory. The general doctrine is very clearly stated by the vice-chancellor in Ellis v. Lewis, 3 Hare, 310 : ' I take the law to be clearly settled at this day, that a devise of lands eo nomine upon trusts for sale, or a devise of lands eo nomine to a devisee beneficially, does not per se express an intention to devise the lands otherwise than subject to its legal incidents, dower included.' This remark of the vice-chancellor also answers the claim that the testator, when he described as the subject of the dower, "all the rest, residue and remainder of my estate," meant the entire title, or the estates as enjoyed by him. A similar argument was answered by Lord Thurlow in Foster v. Cook, 3 Bro. Ch. C. 347. 'Because,' he said, 'the tes- tator gives all his property to the trustees I am to gather from his having given all he has, that he has given that which he has not.' " Provision for one-third of net income is in lieu of dower. Starr v. Starr, 54 Hun, 300. Acceptance of a bequest expressed to be in lieu of dower bars widow's claim on realty. Orout v. Cooper, 9 Hun, 336. The right of dower being in itself a clear legal right, an intent by the testator to exclude it, or that it should be relinquished, must be demonstrated by express words or by manifest implication. In order to exclude it the will itself should contain a provis- ion inconsistent with the assertion of such legal right. Leonard v. Steele, 4 Barb. 30. See, also. Lasher v. Lasher, 13 Barb. 106 ; Bond v. McNifl, 6 J. & S. 83. The will of M. gave to his wife certain premises, together with cer- tain personal property, to be received by her in lieu of dower. At the time of the testator's death there was a mortgage upon the premises, the amount of which was about the value of the premises. The widow accepted the provisions. Subsequently the mortgage was foreclosed, resulting in a deficiency. Construction : The widow was not entitled to be allowed the value of the real estate; under the statute, 1 R. S. 749, sec. 4, she simply took the equity of redemption and was required, as devisee, to pay and satisfy the mortgage. Also, it was immaterial that the testator, in the first clause of his will, directed the payment of his debts as soon after his decease as con- veniently could be done. Same will : After giving a legacy of $1,000, the will gave the testator's residuary estate to his executors, in trust, to be converted into money. At the 190 VL ESTATES FOB LIFE. 9. ELECTION. 3. BETWEEN DEVISE AND DOWER. time of his decease the testator had $20,000 in a firm in which he was a partner. This he provided should remain in the business at interest, if his partner should assent, the interest to go to his wife as long as she remained unmarried, and if she did not marry again, until her death. The balance of his estate he directed his executors to invest in interest bearing securities, the interest to be paid to his wife as long as she remained unmarried. The fifth clause of the will then provided that, upon the death or marriage of his wife, his executors should convert all the residuary estate into money and divide the same into six parts, to be distributed as directed. In the sixth clause the testator directed his executors, as soon as convenient after his decease, to pay to the bene- ficiaries named in the fifth clause a certain proportion of the legacies bequeathed to them, amounting, in all, to $11,000. The clause con- cluded thus : " Such several payments to be on account of and to be deducted from any share or proportion of my estate which they shall be entitled to receive under the preceding paragraph." The debts of the testator, exclusive of the bond and mortgage and the funeral expenses, amounted to about $2,000. The testator, aside from the $20,000 in the firm, owned $10,000 of personalty. It was claimed by the legatees that the $11,000 provided for in the sixth clause should be paid from the personalty before the provision for the widow, and that she was only entitled to interest on the residue. Construction : Untenable ; the intention of the testator was to give his wife, during widowhood, the use of all his property, after deducting the $1,000 legacy. Meyer v. Gahen, 111 N. Y. 270. The will of A. devised and bequeathed all his real and personal prop- erty, after the payment of debts and funeral expenses, to his executors, in trust, to invest and keep invested the proceeds in certain specified in- terest bearing securities, to pay the income of a certain small part thereof to his mother during life, and the balance to his widow during life, including that bequeathed to the mother after her death, and after the death of the wife, the remainder over to the testator's surviving children, share and share alike. In an action for the construction of the will, it appeared that the widow and two children survived him, one of whom died thereafter and before the commencement of the ac- tion. The widow claimed the benefit of the provision made for her in the will, and also dower in the testator's real estate, and that upon the death of her child she, as next of kin, became entitled to one-half of IV. DOWER. 191 9. ELECTION. 2. BETWEEN DEVISE AND DOWER. the remainder provided for each child, and to an absolute interest in possession of one-quarter of the estate by reason of a merger of her legal and equitable interest therein. Construction : Untenable ; the creation of a trust for her life was inconsistent with an implied right on her part to manage and control any part of the es- tate ; from the fact that the testator gave her the income of all his es- tate, it was to be implied that he did not expect her also to take dower and the will indicated the testator's intent that all his property should be converted into money ; the widow's interest in the trust estate did not merge in that acquired on the death of her child ; there could be no merger because of the existence of the trust estate. Where there is a manifest incompatibility between the provision for a widow in a will and dower, the widow is put to an election between them. Yernon v. Vernon, 53 N. Y. 851; Konvalinka v. Schlegel, 104: id. 125; Matter of Zahrt, 94 id. 605. In equity the union of legal and equitable estates in the same person does not effect a merger, unless such was the intention of the parties and justice and equity require it. Smith v. Roberts, 91 N. Y. 470; Champney v. Coope, 32 id. 543. Merger is accomplished in law when two or more estates in the same property unite in the same person, and when these estates comprise the whole legal and equitable interest in such property, and so the holder becomes the absolute owner. Mickles v. Townsend, 18 N. Y. 575; Bouv. Inst, sees. 1993-1995; it can not take place where there is an iflter- mediate estate. The provisions of the Revised Statutes (1 R. S. 727, sec. 471), indi- cating the circumstances under which the union of legal and equitable estates extinguish the latter, are, in principle, equally applicable to trusts of personal property. The widow, by the death of her child, acquired a future estate, de- pendent upon the precedent estate of the trustees, which may be devised, but can not be enjoyed in possession ; it was the intent of the testator to put the corpus of the fund beyond the hazard of impairment and waste during the life of his widow, and this could not be defeated or af- fected by the acquisition by her of the estates in remainder. The necessity of a conversion of realty into personalty, to accomplish the purposes expressed in a will, is equivalent to an imperative direc- tion to convert, and effects an equitable conversion. Hobson v. Hale, 192 VI. ESTATES FOR LIFE. «. ELECTION. 3. BETWEEN DEVISE AND DOWBB. 95 N. Y. 588; Chamberlain v. Taylor, 105 id. 185. Asche v, Asche, 113 id 232, affg 47 Hun, 285. Note. — Section 47 of chapter oa Uses and Trusts, as was said by the chancellor in the Matter of De Kay, 4 Paige, 403, provides that every person who is entitled to the actual possession of lands and to the receipt of the rents and profits thereof in law or in equity, is deemed to have a legal estate therein, commensurate with his benefi- cial interest in the premises, except in those cases where the estate of the trustees is connected with some power of actual disposition or management. Here the widow is not only entitled to the possession of the trust fund, but there is also a valid trust im- posiug upon its trustees the duties of actual disposition and management which will continue as long as the fund exists and the widow lives. Although a gift by express terms is not made in a will, a legacy by implication may be upheld where the words of the will leave no doubt of the testator's intent and can have no other reasonable interpretation. V. died leaving a widow but no children. His will, after a provision made for his wife, contained this clause : "This provision to be accepted by my wife in lieu of her dower right a7id distributive share in my estate, she to make her election, whether she accepts this provision of my will, within sixty days from the time of proving the same." The widow within the time specified made her election, rejecting the provision. The residuary estate was given to a nephew of the testator. Oonstruction : Aside from ber dower right, the widow was entitled to such share of the personal estate as the law would have given her had the deceased died intestate. Same will. The executor claimed that the widow had no right to raise the ques- tion of construction, upon probate of the will, as it involved both real and personal estate. Construction : Untenable ; the widow simply put in issue a disposition of personal property, and such a disposition the Code of Civil Procedure (sec. 2624) permits a party to put in issue upon probate. Matter of Vomers, 113 N". Y. 569, rev'g 45 Hun, 418. Widow, by election to take a provision in a will in lieu of dower con- sented to all the terms and conditions annexed, and yielded all incon- sistent rights. Lee v. Tower, 124 K Y. 370. " A person claiming dower by title paramount to a mortgage upon the real estate can not be brought into court in an action to foreclose the mortgage, and compelled to test the validity of her dower. Merchants' Bank v. Thomson, 55 K Y. 7. IV. DOWER. 193 9. ELECTION. 3. BETWEEN DETISE AND DOWEH. The will of N. gave to his wife the use and income of his real estate during life, the same to be, as stated, "enjoyed, accepted and received by her in lieu of dower, and in addition to what she would have as doweress if this devise was not so made to her." Construction : The devise was in lieu of dower; the devisee having accepted the provision made was not entitled to dower. Lewis v. Smith, 9 N. Y. 511; Konvalinka v. Schlegel, 104 id. 125. Certain real estate of which N. died seized was subject to a mortgage executed by him, but in which his wife did not join. An action was brought after the death of N. to foreclose the mortgage ; his widow was made a defendant and was served with summons and complaint, but did not appear. The complaint contained no allegation in reference to her dower right, except the general averment that defendants "have, or claim to have, some interest in or lien upon said mortgaged premises " accruing " subsequently to the lien of said mortgage." The judgment provided that the premises be sold " subject to the dower therein of the defendant," Mrs. N. The premises were purchased by the plaintifE in that action. Action brought by Mrs. N. to recover dower in said real estate. Construction : The proceedings in the foreclosure suit were ineffectual to determine the question as to plaintiff's right to dower, and defendant, who was the grantee of the purchaser at the sale, was not estopped by the judgment therein, or by the purchase under it, from questioning that right. Nelson V. Brown, 144 K Y. 384, aff'g m Hun, 311. In an action brought to make partition of certain premises it appeared that James M. Conner was, at the time of his death, the owner of an undivided interest in the premises ; that he left him surviving his widow and also several children, and left a will by which he directed his executors to distribute and apportion to his widow and children his estate in such a manner and at such times as should in their judgment be for the best interests of his widow and children, and gave such executors full power to sell as much of his real and personal property as they should deem best, and to invest and distribute the proceeds of such sales as they deemed best for the interest of all. The widow accepted the provisions for her benefit made in the will, and also claimed dower in the real estate sought to be partitioned. Held, that the widow was not put to her election, but was entitled to her dower, in addition to the provisions made for her in the will. That, subject to the widow's dower, the widow and children were each entitled under the will to an equal proportion of the property by virtue of the provisions of 35 194 VI. ESTATES FOE LIFE. 9. ELECTION. 2. BETWEEN DEVISE AND DOWEE. the Revised Statutes (R. 8. pt. 3, ch. 1, tit. 2, sec. 98) which euact that where a disposi- tion under a power is directed to be made to or between several persons, without any specification of the share or sum to be allotted to each, all the persons designated shall be entitled to equal portions. That the devise to the executors was void as a trust, but valid as a power in trust; that the lands descended to the heirs subject to the execution of the power, which was not inconsistent with the continued existence of the dower interest of the widow, and that any sale under the power would be subject to that interest. Conner v. Watson, 93 Hun, 54. A provision in a will giving the entire estate to the widow so long as she remains such, and directing that in case she remarries she may retain one-third of the estate, the balance to be divided, share and share alike, between testator's children, is incon- sistent with a claim of dower, and puts the widow to her election. Jurgens v. Rogge, 16 Misc. 100. An action was brought to obtain a judicial construction of the will of William H. Gray, the third clause of which was as follows: "I give and, devise to my beloved wife, Mary Jane Gray, in lieu of dower and thirds, and all right and interest in my estate (and in addition to the other and further provisions for her hereinafter made), the house and lot of land in which we now reside, and known by the present street number 130 "West Eleventh street in the city of New York, to her and her heirs absolutely forever ; " by the same clause the testator also devised his jewelry, household furniture, books, pictures and ornaments to his wife, and directed that his executors should pay from his estate the mortgages upon the house devised to her. After making the will, the testator sold the West Eleventh street house, and moved into another house owned by him on West Seventy-second street, in which he died. By the fifth clause of his will the testator devised all the rest and residue of his estate to his executors in trust, to receive the rents, income and profit thereof, and to apply one-sixth of them to the use of his wife during her life, and the remainder in other ways mentioned in his will. Construction: It was the intention of the testator to give his wife, in lieu of dower, only the house in West Eleventh street, and the expression " and in addition to the other and further provisions for her hereinafter made " must be disregarded in construing this clause ; It was not the intention of the testator that all the provisions in his will intended for her benefit were to be in lieu of dower ; As the sale of the house in West Eleventh street operated as a revocation of the devise, the widow could not thereafter be compelled to elect between the specific devise and her right of dower ; The widow was entitled to dower in all the real estate, in addition to the provision made for her by the fifth clause of the will under which she was to receive one-sixth of the rents, income and profit during her life ; The right of dower was favored and was never excluded by a provision for a wife except by express words or by necessary implication ; A widow could not be put to an election between a testamentary provision and her dower, unless it was clear to a demonstration that the testator intended that she should elect ; The creation by the will of a trust estate was. not incohsistent with a right of dower in the wife in the subject of the trust ; IV. DOWER. 195 9. ELECTION. 2. BETWEEN DEVISE AKD DOWER. The fact that the West Eleventh street house was devised in lieu of dower and thirds, and had been sold, did not create a bequest by implication to the widow of one-third of the personal property in addition to the bequest of one-sixth, of the income given by the will ; In order to uphold a devise by implication the inference from the will of the tes- tator's intention to give it must be such as to leave no hesitation in the mind of the court and permit of no other inference ; There was nothing in the will from which it could be inferred that it was the in- tention of the testator to substitute the house in West Seventy-second street for the house in West Eleventh street as a provision for the widow in lieu of dower. Gray V. Oi-ay, 4 App. Dlv. 133. A devise of the residue equally to the widow, son and daughter, " share and share alike," is inconsistent with the right of the widow to claim dower, and puts her to her election as to the residuary estate. Class V. Eldert, 16 Misc. 104. From opinion. — "The widow does not depend upon her husband for dower. It is not his to give, but is hers by law. It follows that unless it appear from a hus- band's will that he did not intend that his widow should take both dower and the provision which he therein makes for her, she is not required to elect which she shall take. 1 Roper on Husb. & W. 583 ; Bull v. Church, 5 Hill, 306. To put her to such election, the taking of dower must be inconsistent with the provisions of the will. The test is whether the setting off of one-third of the real estate by metes and bounds to the widow for her dower would make the carrying out of the devise of the will impossible. 1 Roper on Husk & W. 576 ; Matter of Zahrt, 94 N. Y. 609. The devise here is of all the residue to the widow and two children share and share alike. It would be impossible to thus partition it equally among them if one-third has first to be set off by metes and bounds to the widow : Any division of it except into thirds would disturb and disappoint the will. I see no conflict between my conclu- sion and the decision in Konvalinka v. Schlegel, 104 N. Y. 135. There was a per- emptory power of sale of the land in the will construed in that case, with a direction to divide the proceeds among the widow and children share and share alike. This meant a sale subject to the widow's right of dower. That case did not present the prac- tical impossibility of an equal partition of the lands by metes and bounds if one- third had first to be set off for the widow. Nor does the case of Lewis v. Smith, 9 N. Y. 503, control this case. There the devise by the husband was of his entire estate to his widow for life, and it was held that there was no conflict between her taking as doweress and also under the will, it being carefully pointed out that there was ' ' no person who takes an interest under the will during her lifetime with which the claim of dower will conflict." In the Zahrt case, supra, there was the same devise to the widow, but upon the conditions that she should keep the estate in repair, pay the taxes, assessments and water rates, and keep the buildings insured. The court distinguished that case from Lewis v. Smith, because of the said condi- tions imposed by the will, and held that the widow was put to her election. I do not just now see how the requirements of the will concerning waste, and the payment of taxes, water rates and ordinary assessments, made a difference, for they would have existed the very same if the will had not mentioned them. The law has always im- posed them upon the widow, the same as upon other life tenants. ' 3 Reeves' Hist. Eng. L., 173, 436, Finlason's ed. ; Code Civ. Pro., § 1651 ; Thomas v. Evans, 105 N. Y. 613. If the inconsistency be baaed wholly upon the requirement for insurance, 196 VI. ESTATES FOR LIFE. 9. ELECTION. 3. BETWEEN DEVISE AND DOWER. it shows that a much smaller inconsistency than that presented by the present case may require the widow to elect.'' 3. WHEN ELBCTION IS DEEMED TO HAVE BEEN MADE. Eeal Prop. L., sec. 181 (L. 1896, ck 547, taking effect Oct. 1, 1896). "When deemed to have elected. — Where a woman is entitled to an election as prescribed in either of the last two sections, she is deemed to have elected to take the jointure, devise or pecuniary provision, unless within one year after the death of her husband she enters upon the lands assigned to her for her dower, or commences an action for her dower. But, during such period of one year after the death of her said husband, her time to make such election may be enlarged by the order of any court competent to pass on the accounts of executors, adminis- trators or testamentary trustees, or to admeasure dower, on an affidavit showing the pendency of a proceeding to contest the probate of the will containing such jointure, devise or pecuniary provision, or of an action to construe or set aside such will, or that the amount of claims against the estate of the testator can not be ascertained within the period so limited or other reasonable cause, and on notice given to such persons, and in such manner, as such court may direct. Such order shall be in- dexed and recorded in the same manner as a notice of pendency of an action in the office of the clerk of each county wherein the real prop- erty or a portion thereof affected thereby is situated." L. 1895, ch. 1032, sec. 1 (taking effect June 14, 1895, repeahng L. 1895, ch. 171, and reenacting 1 R. S. 743, sec. 14 and L. 1890, ch. 61 amending same) is substantially the same except that there is no provision allowing court to direct manner of giving notice (see supra, at end of next to last sentence); "to be assigned" is used for "as- signed" in the first sentence. L. 1895, ch. 171, sec. 1 (taking effect Jan. 1, 1896, amending 1 R. S. 743, sec. 14, repealed by above), provides that the widow shall be deemed to have elected to take the jointure, inheritance, devise or pecuniary provision, unless she make an entry or bring an action within the year after her husband's decease. No provision is made for the extension of time for making election. L. 1890, ch. 61 (amending 1 E. S. 742, sec. 14) is same as L. 1895, ch. 1033, sec. 1, supra. 1 R. S. 743, sec. 14 (repealed by Real Prop. L., sec. 300) same as at present (L. 1896, ch. 547, sec. 181, supi-a) except that there is no provision in regard to the extension of time for election. "To be assigned" used for "assigned." B., by his will, gave to his widow in lieu of dower, one-third of his personalty absolutely, and the net income for life of one-third of his real estate, which was vested in a trustee for that purpose. About three years after B. died, the widow brought an action in which she asked that she might be permitted to make her election, renounce the IV. DOWER. 197 9. ELECTION. 3. WHEN ELECTION IS DEEMED TO HAVE BEEN MADE. testamentary provision and have her rlower assigned, on the ground that she was ignorant of the extent of her husband's estate until the ex- ecutor filed his accDunts, and was induced to omit to take steps neces- sary to claim dower by representations of the executor made in the presence of S., the principal beneficiary under the will, and by S., as to the value of her dower right. Construction: Plaintifif was not entitled to the relief sought. The provision of the statute (1 E. S. 741, sees. 13, 14) requiring a widow to elect within one year between a provision made for her in her husband's will and the right to have her dower in his real estate admeas- ured, and declaring that she shall be deemed to have elected to take the testamentary provision, unless within that time she shall enter upon the lands to be assigned to her for dower, or commence proceedings for the assignment thereof, has the force of a statute of limitations, and she is at once on the death of the testator, charged with the duty of informing herself so as to make her election. Akin v. Kellogg^ 119 N. Y. 441, a£f'g 48 Hun, 459, citing, Hone v. Van Schaick, 7 Paige, 221-3. Widow's election to accept testamentary provision In lieu of dower is determined by not claiming dower within the statutory year. Duffy v. Duffy, 70 Hun, 135. See, also, Palmer v. Voorliis, 35 Barb. 479. 10. WIDOW'S QUARANTINE. Real Prop. L., sec. 184 (L. 1896, ch. 547, taking effect Oct. 1, 1896). "Widow's quarantine. — A widow may remain in the chief house of her husband forty days after his death, whether her dower is sooner assigned to her or not, without being liable to any rent for the same; and in the meantime she may have her reasonable sustenance out of the estate of her husband." 1 R. S. 743, sec. 17 (repealed by Real Prop. L., sec. 300), same. 1 R. L. 56, sec. 1 (L. 1787, ch. 4,) (repealed L. 1838, second meeting, ch. 31, sec. 1, par. 8), provides that the widow shall tarry in the chief house of her husband forty days after the death of her husband, or until her dower be assigned to her; and in meantime have her reasonable sustenance out of his estate. 11. WIDOW MAY BEQUEATH A CROP. Eeal Prop. L., sec. 185 (L. 1896, ch. 547, taking effect Oct. 1, 1896). " Widow may bequeath a crop. A woman may bequeath a crop in the ground of land held by her in dower. 1 R. S. 743, sec. 35 (repealed by Real Prop. L., sec. 300), same. 1 R. L. 868, ch. 33, sec. 17 (repealed L. 1838, second meeting, ch. 81, sec. 1, par. 95), same. 198 VI. ESTATES FOR LIFE. 12. PROVISIONS OF THE CODE OF CIVIIi PROCEDURE. Sec. 363— Regulating when an action for dower should be brought in superior city court, repealed by L. 1895, ch. 946,to take effect Jan. 1, 1896. Sec. 340 — County court has jurisdiction of actions for. Sec. 616 — Security required on staying proceedings after verdict in dower. Sec. 791 — Preferred on calendar. Sec. 968— Triable by jury. Sec. 982 — To be tried where the subject of action is situated. Sec. 1499, ch. 14, tit. 1, art. 1, regulating actions for recovery of real property— "Such an action can not be maintained in a case where an action for dower may be maintained, as prescribed in article third of this title." Sec. 1538 — When person having right of dower must be made defendant in parti- tion. •Sec. 1539 — How may be provided for in final judgment in partition. See Jordan V. Van Epps, 85 N. Y. 427, post, p. 202. Sec. 1553 — Right of, not admeasured, how may be treated in partition. Sees. 1567-1570 — Right in partition, court may direct sale of; sale, proceeds, etc. Sec. 1571 — Married woman may release to husband her inchoate right of, in prop» erty to be sold in partition. L. 1840, ch. 177, sec. 2, Sees. 1583-1585 — Investment of proceeds of sale in partition. See Higbie v. West, lake, 14 N. Y. 281, post, p. 203. Sec. 1596 — An action for dower must be commenced by a widow within twenty years after the death of her husband, but if she is at the time of his death either 1. Within the age of twenty-one years, or 3. Insane, or 3. Imprisoned on a criminal charge, or in execution upon conviction of a criminal offense, for a term less than for life, The time of such disability is not a part of the time limited by this section. And if at any time before such claim of dower has become barred by the above lapse of twenty years, the owner or owners of the land subject to such dower, being in possession, shall ham recognized such claim of dower by any statement contained in, a writing under seal subscribed and acknowledged in the manner entitling a deed of real estate to be recorded, or if by any judgment or decree of a court of record within the same time and concern- ing the lands in question, wherein such owner or owners were parties, such right of dower shall have been distinctly recognized as a subsisting claim against said lands, the time after the death of her husband and previous to such acknowledgment in writing, or such recognition by judgment or decree, is not a part of the time limited by this section. Last sentence added by L. 1883, ch. 277. 1 R. S. 743, sec. 18, repealed by L. 1880, ch. 345, reads: "A widow shall demand her dower within twenty years after the death of her husband; but if, at the time of such death, she be under the age of twenty-one years, or insane, or imprisoned on a criminal charge, or conviction, the time during which such disability continues shall not form any part of the said term of twenty years. 1 R. L. 60, sec. 1 (L. 1806, ch. 168, sec. 1), (repealed by L, 1838, second meeting, ch. 31, sec. 1, par. 9), provides that "a widow shall and may be at liberty, at any time during her life, to make demand of her dower agreeably to the act hereby amended." Sec. 1597— Against whom action for, may be brought. See Connolly v. Kewton, 85 Hun, 553. Sees. 1598-1599 — Who may be made defendants in action for. Sec. 1600 — "Where a widow recovers, in an action therefor, dower in property in which her husband died seized, she may also recover in the same action damages for IV. DOWER. 199 12. PROVISIONS OF THE CODE OF CIVIL PROCEDURE. ■withholding her dower, to the amount of one-third of the annual value of the mesne profits of the property, with interesi; to be computed where the action is against the heir, from her husbaud's death, or where it is against any other person, from the time ■when she demanded her dower from the defendant; aud, in each case, to the time of the trial or application for judgment, as the case may be; but not exceeding six years in the whole. The damages shall not include anything for the use of permanent improvements, made after the death of the husband. ' 1 R. 8. 743, sees. 19, 20, 21 (repealed by L. 1880, ch. 245), same, except that there is no provision allowing interest, and damages are to be computed to recovery of judg- ment, instead of to "trial, or application for judgment," as in the Code. 1 R. L. 60, sec. 1 (L. 1806, ch. 168, sec. 1) (repealed L. 1838, second meeting, ch. 31, sec. 1, par. 9) contains a proviso " that, do-wer of any lands sold by the husband shall be according to the value of the lands, exclusive of the improvements made since the sale." Sec. 1601 — " Where a ■widow recovers dower, in a case not' specified in the last sec- tion, she may also recover, in the same action, damages for withholding her dower, to be computed from the commencement of the action ; but they shall not include any- thing for the use of permanent improvements, made since the property was aliened by the husband. In all other respects, the same must be computed as prescribed in the last section."' Sec. 1603 — " The last two sections do not authorize the recovery, against a defend- ant who is joined witli others, of damages for withliolding dower, in any portion of the property not occupied or claimed by him." See Kyle v. Kyle, 67 N. Y. 400; post, p. 203. Sec. 1603 — "Where a widow recovers dower in real property aliened by the lieir of her husband, she may recover, in a separate action against him, her damages for with- holding her dower, from the time of the death of her husband to the time of the alien- ation, not exceeding six years in the whole. The sum recovered from him must be deducted from the sum which she would otherwise be entitled to recover from the grantee: and any sum recovered as damages from the grantee, must be deducted from the sum, which she would otherwise be entitled to recover from the heir." 1 R. S. 743, sec. 23 (repealed L. 1880, ch. 345) same. See Price v. Price, 54 Hun, 349. Sec. 1604 — "The acceptance by a widow, of an assignment of dower, in satisfaction of her claim upon the property in question, bars an action for dower, and may be pleaded by any defendant." 1 R. S. 743, sec. 33 (repealed by L. 1880, ch. 245) same, except that the plea in bar may be pleaded by the heir or his grantee, or grantee of husband, while in Code, it may be pleaded by " any defendant." Sec. 1605 — " Where a widow not having a right to dower, recovers dower against an infant, by the default or collusion of his guardian, the infant shall not be preju- diced thereby ; but when he comes of full age, he may bring an action of ejectment against the widow, to recover the property so wrongfully awarded for dower, with damages from the time when she entered into possession, although that is more than six years before the commencement of the action." 1 R. 8. 743, sec. 34 (repealed by L. 1880, ch. 45) same, 1 R. L. 57, sees. 5, 6 (L. 1787, ch. 4) (repealed by L. 1838. second meeting, ch. 21, sec. 1, par. 8), contain provisions allowing infant heir to recover against a woman endowed by default or collusion. Sec. 1607— Complaint in action for, what to state. Sec. 1607 — Interlocutory judgment for admeasurement of ; must be admeasured by referee or three commissioners. 200 VI. ESTATES FOR LIFE. 13. PROVISIONS OF THE CODE OF CIVIL PROCEDURE. Sees. 1608-1613, inclusive, regulate the duties, etc., of commissioners to admeasure. See Mclntyre v. Clark, 43 Huu, 353; Price v. Price, 41 id. 486. Sec. 1614 — PlaiutiflE may recover sum awarded as; court may modify judgment. Sec. 1615 — Junior incumbrances not aflfected by admeasurement of. Sec. 1616 — Appeal from judgment does not stay execution thereof unless the court so direct; when court can not direct a stay. Sec. 1617 — Plaintilf may consent to receive gross sum in lieu of. (L. 1870, ch. 717, sec. 1, first half amended by the above sec.) See Robinson v. Govers, 138 N. Y. 435; post, p. 203. Sidway V. Sidway, 52 Hun, 232; McKeen v. Fish, 33 id. 38, aff'd 98 N. Y. 645; Schierloh v. Schierloh, 14 Hun, 573. Sec. 1618 — Defendant may obtain leave to pay such gross sum; proceedings thereon. See Kyle v. Kyle, 3 Hun, 458. See 67 N. Y. 400. Sec. 1619 — Interlocutory judgment for sale where plaintiff consents to accept gross sum. (L. 1870, ch. 717, sec. 1. second half, remodeled by above sec.) See O'Dougherty v. Kemington Paper Co., 42 Hun, 193. Sees. 1620-1635, inclusive, regulate proceedings in case of such sale; who bound by It, etc. Sec. 1638 — Claim for can not be made basis of action to determine claim to real property. Sec. 1647 — "A person claiming, as owner, an estate in fee, for life, or for years, in real property, may maintain an action against a woman, who claims to have a right of dower in the whole or a part of the property, to compel the determination of her claim. But such an action can not be commenced until after the expiration of four months after the death of defendant's husband. If the defendant is under any of the dis- abilities specified in the last section, the provisions of that section relating to new trials and to perpetuating proofs, shall apply to her case." Last two sentences added by L. 1891, ch. 310. 3 R. S. 489, sees. 6, 7, 8 (repealed by L. 1880, ch. 245), provide that the owner of the land may, after forty days, give notice in writing to the widow to demand her dower within ninety days after service of notice, and if she fails to comply or if, even when no notice is given, she fails to make demand within one year from death of husband, then the owners may petition the supreme court or court of common pleas of the county, or surrogate of the county for the admeasurement of said dower. A copy of the petition with notice of time and place of presentment to be served per- sonally on the widow, twenty days previous to its presentation. 1 R. L. 60, sees. 2, 3 (L. 1806, ch. 168) (repealed by L. 1828, second meeting, ch. 31, sec. 1, par. 9), substantially the same provision ; after the forty days may give thirty days' notice to demand dower within ninety days thereafter ; application to be made to surrogate of the county. See Linden v. Doetsch, 40 Hun, 239. Sec. 1648 — Proceedings in such action where defendant's right is admitted. Sec. 1649 — Id. ; when defendant's right denied. Sec. 1651— "An action for waste lies against a tenant by the curtesy, in dower, for life, or for years, or the assignee of such a tenant, who, during his estate or term, com- mits waste upon the real property held by him, without a special and lawful written license so to do ; or against such a tenant, who lets or grants his estate, and, still re- taining possession thereof, commits waste without a license." 3 R. S. 334, sees. 1, 2 (repealed by L. 1880, ch. 245) substantially the same pro- vision. IV. DOWER. 201 12. PROVISIONS OF THE CODE OF CIVIL PROCEDURE. 1 R. L. 62, sec. 2 (L. 1787, ch.VI) (repealed by L. 1828, second meeting, ch. 21, sec. 1, par. 10), same, last sentence omitted. Sec. 1676 — When taxes, etc. , must be paid on sale in action for. Sec. 1685 — Liability of one purchasing from defendant pending action for. Sees. 1759, 1760 — Right of, how affected by judgment of divorce. Sec. 1759, subd. 4 — "Where final judgment is rendered, dissolving the marriage, the plaintiff's inchoate right of dower, in any real property, of which defendant thea is or was theretofore seized is not affected by the judgment." This is declaratory of the previous rule, see Wait v. Wait, 4 N. Y. 95 ; Forest v. Forest, 6 Duer, 102 ; Kade v. Lamber, 16 Abb. N. S. 288. Sec. 1760, subd. 3 — " Where judgment is rendered dissolving the marriage, the defendant is not entitled to dower in any of plaintiff's real property, or to a distribu- tive share in his personal property." 2 R. S. 146, sec. 48 (repealed by L. 1880, ch. 245) same provision diiierently ex- pressed. See Schiffer v. Pruden, 64 N. Y. 47. 2 R. L. 102, sec. 8 (repealed by L. 1828, second meeting, ch. 21, sec. 1, par. 138), same as R. S. Sec. 2362 — When right of, may be included in sale of real estate of infant, lunatic, etc. Sec. 2363 — Id. ; when belonging to infant, etc. Sec. 3365 — What controversies concerning, may be submitted to arbitration. Sec. 2395 — Right of, when barred by sale on foreclosure by advertisement. Sec. 2395 — "A sale, made and conducted as prescribed in this title, to a purchaser in good faith, is equivalent to a sale, pursuant to judgment in an action to foreclose a mortgage, so far only as to be an entire bar of all claim or equity of redemption, upon or with respect to the property sold, of each of the following persons : Subd. 5 — The wife or widow of the mortgagor, or of a subsequent grantees upon whom notice of the sale was served as prescribed in this title, where the lieu of the mortgage was superior to her contingent vested right of dower, or her estate in dower." Sec. 2778 — How affected by sale of real property of deceased to pay debts. Sec. 2778 — "Except as prescribed in the last section, a conveyance of real prop- erty, executed upon a sale thereof, pursuant to this title, vests in the grantee all the estate, right and interest of the decedent in the real property so conveyed, at the time of his death, free from any claim of his widow for dower, which has not been assigned to her, but subject to all subsisting charges thereon by judgment, mortgage or otherwise, which existed at the time of his death, unless the said real property is decreed to be sold free and clear from the lien of any judgment or judgments estab- lished by the decree and ordered to be paid as far as possible from the proceeds of such sale, as provided for in sections twenty-seven hundred and ninety-one and twenty-seven hundred and ninety-three of this act, in which event such lien or liena shall be transferred by such sale from the land sold to the proceeds thereof. Where dower has been assigned to the widow, the grantee takes the part of the property to which the estate in dower attaches, subject thereto." The clause beginning with "unless" and continuing down to the end of the sentence was inserted by L. 1894, ch. 735. 2 R. 8. 105, sec. 31 (latter part), sec. 33 (repealed by L. 1880, ch. 345), practically the same provision as before amendment, supra. That dower assigned not affected by the sale, see Lawrence v. Miller, 3 N. Y. 345 ; Lawrence v. Brown, 5 id. 394 j Mapes V. Howe, 3 Barb. Ch. 611. 36 202 VI. ESTATES FOR LIFE. 13. PROVISIONS OF THE CODE OF CIVIL PROCEDURE. Sec. 3794— "The claim of dower of the decedent's wife, ia real property held by the decedent, under a contract for the purchase thereof, which must be satisfied, as prescribed in subdivision third of the last section, extends only to tlie annu^ interest, during her life, upon one-third of the balance remaining, after deducting from the money arising upon the sale, all sums due from the decedent, at the time of the sale, for the real property so contracted and sold." 3 R. 8. 113, sec. 73 (repealed L. 1880, ch. 345), substantially the same provision. That wife is entitled to dower in lands, of which the husband was possessed at the time of his death, under a contract for the purchase thereof, subject to the payment of sum due upon the contract, see Hawley v. James, 5 Paige, 318 ; Hicks v. Stebbjns, 3 Lans. 39. Sec. 3793 — Fund set apart for dower ; how invested, etc. Sec. 3399 — Fees of commissioners. As to costs in an action of dower see Swift v. Swift, 88 Hun, 551 ; Witt-haus v. Schaack, 38 id. 560 ; Aikmau v. Harsell, 31 id. 634 ; Schierloh v. Schierloh, 14 id. 573. On the sale of lands, by order of the surrogate, to pay debts, the portion of the purchase money to be set apart and invested pursuant to the statute, 3 R. S. 106, sec. 37, for the widow, in lieu of dower, is the one-third of the gross amount, and, not of the amount less the charge and expense of the sale. Where interest on the purchase price accrues after the sale, and before the distri- bution, the one-third of it belongs to the widow. Higbie v. Westlake, 14 N. Y. 381. The provisions of the Revised Statutes giving a widow damages for withholding dower, 1 R. S. 748, sec. 19, ei seq., were intended to prescribe the sole rule to deter' mine the amount thereof, and by and under the statute alone can she now recover, either at law or in equity. As to whether an executor of an heir at law has the right to charge the estate of his testator, or expend the assets in his hands, for the payment of arrears of dower, where dower has not been assigned, qumre. KyU v. Kyle, 67 N. Y. 400, modifying 8 Hun, 458. C, plaintiff's husband, conveyed certain premises to his brother ft. ; plaintiff did not join in the deed. After the deatli of G., 0., as one of his heirs, brought an action for partition of the premises; plaintiii was made a party defendant. The complaint alleged that she claimed an inchoate right of dower in ihe premises because she had not signed said deed and that each undivided portion was subject thereto. The summons with notice of object of action was served upon her. She did not appear. The final judgment made no provision for her dower. Upon sale under said judgment, defend- ant became the purchaser. Action to recover dower. Construction: The judgment in the partition suit was a bar; it was the intent of the provisions of the Revised Statutes in reference to partition, 3 R. S. 318, sec. 5, et seq., to cut off the inchoate right of dower of any party to a partition suit, as a general rule; if the posi- tion was tenable, the claim for dower, being an adverse one accruing before the title of the tenants in common, could not be determined in the partition suit, it should have been presented in some form in that action; and, having failed to do this, plaintiff •could not claim in another action that she was unlawfully deprived of her dower right. Badgley v. Halsey, 4 Paige, 98; Jenkins v. Van Schaack, 3 id. 343 ; Burhans v. Burhans, 3 Barb. Ch. 398; Hosford v. Merwin, 5 Barb. 51; Florence v. Hopkins, 46 N. Y. 183; O'Dougherty v. Aldrioh, 5 Den. 385, distinguished. Also the death of C. before the entry of the decree in the partition suit could not af, IV. DOWER. 203 12. PROVISIONS OF THE CODE OF CIVIL PROCEDURE. lect the rights of the purchaser as far as this action was concerned, it could be only considered upon application to the court in the partition suit. Jordan v. Van Epps, 85 N. Y. 437, afE'g 19 Hun, 536. The alleged fraudulent conveyances were of the debtor's real estate to his wife, and the judgment set them aside. Construction: An objection to such judgment, that it did not provide for the wife's right of dower could not be raised on appeal; the remedy, if any, was by motion. It seems that such dower right is not affected by the judgment. Wright v. Nostrand, «4 N. Y. 31, revg 15 J. & S. 441. After a verdict in an action under sec. 1617, Code of Civ. Pro., determining plain- tiff to be entitled to dower, defendants moved for leave to pay the gross sum in lieu thereof, and reference was ordered to ascertain such sum; the referee made and filed his report, specifying the sum. On motion, the court decided to confirm it, its deci- sion being expressed in the form of a written opinion, and the formal order embody- ing this decision was prepared and signed by the court and entered three days there- after. Plaintiff died on the same day, about two hours before the order was so signed and entered. The court ordered that the action be continued in the name of plain- tiff's executor, and that the sum stated be paid to him. Construction: No error; the plaintiff's right to demand and receive the sum fixed was established when the court made its decision. In equity, the entry of the order might be regarded as done at the time of the division. Fulton v. Fulton, 8 Abb. N. C. 310; McLaugh- lin V. McLaughlin, 33 N. J. Eq. 505-513; Mulford v. Hiers, 3 Beas.Ch., N. J., pp. 13, 15; Livermore v. Bainbridge, 49 N. Y. 138, 139; Mackay v. Rhinelanders, 3 Johns. Cas. 467. BoMnson v. Gomra, 138 N. Y. 435. 13. ASSIGNMENT AND ADMEASUREMENT. At what time and in what manner dower must be determined. See 0' Dougherty v. JBemingion Paper Go. , 43 Hun, 193. In order to authorize a sale of the property, it must be shown that a distinct parcel of the property can not be admeasured and set off to the plaintiff, as tenant in dower, "without material injury to the interests of the parties." It is not sufficient to show that one of the parties would be injured by an actual partition. O'DougJieriy v. Bern- ington Paper Co., 43 Hun, 193. A widow is not entitled to have her dower assigned to her in each separate and dis- tinct parcel, when to do so would injuriously affect the equitable rights and interests of other parties. Price v. Price, 41 Hun, 486. When her dower to be charged on lands in the inverse order of their alienation. See Raynor v. Raynor, 31 Hun, 36. A widow is entitled to dower in lands whereof her husband died seized, notwith- standing that dower hath before been assigned in the same lands to the widow of the husband's father; the only effect of the previous assignment of dower is to reduce the extent of the recovery, as thus; if the estate originally consisted of nine acres, the widow of the father is endowed of three acres; and on the death of the widow of the father, the widow of the son becomes entitled to one-third of the three acres, origin- ally assigned to the widow of the father. Bear v. Snyder, 11 Wend. 593. See, also, Dunham v. Osborn, 1 Paige, 634; Reynolds v. Reynolds, 5 id. 161: Ex parte, 1 Barb. Ch. 598; Ellwood v. Klock, 13 Barb. 50. 204 VI. ESTATES FOB LIFE. V. TENANCY BY THE CURTESY. 1. REQUISITES, p. 304. 1. MARKIAGB, p. 204. 2. NATURE OP wipe's TITLE — A FEB SIMPLE IN EBAL PBOPKRTT, p. 305. 3. NATURE OP husband's TITLE, p. 212. 4. BIRTH OP ISSUE, p. 212. 2. INCIDENTS, p. 2U. 1. CURTESY — HOW BARRED, p. 214. 2. HUSBAND ENTITLED TO EXCLUSIVE POSSESSION, p. 214. 3. HUSBAND ENTITLED TO USE OP FIXTURES, p. 215. 4. husband's ESTATE VESTS BY OPERATION OP LAW, p. 215. 3. ACTIONS BY OR AGAINST THE TENANT, p. 216. i. CREDITORS, p. 816. 5. ACTS RELATING TO MARRIED WOMEN, p. 219. 6. CURTESY NOT AFFECTED BY LAWS OP DESCENT, p. 222. 1. REQUISITES. 1. MARRIAGE. There must be a lawful marriage. 1 Cruise Dig. 107 ; 1 Washb. on Eeal Prop. 5th ed. 172 ; Stuart on Husband aad Wife, sec. 153. Voidable marriage. If voidable, it must be avoided before her death. 1 Washb. 5th ed. 172. See 1 E. S. pt. 11, ch. 8, tit. 1, sec. 4. The marriage must exist at the time of her death. Sights in case of divorce. A divorce a vinculo prevents curtesy, when judgment is obtained by the wife. Whether, under the code, a decree for separation affects curtesy — is there any dif- ference if brought by husband or wife? See Van Duzer v. Van Duzer, 6 Paige, 366. Code Civ. Pro., ch. 15, tit. 1, sec. 1760. In actions for divorce, when the action is brought by the husband, the following regulations apply to the proceedings ;***** 2. A judgment dissolving the marriage does not impair, or otherwise affect the plaintiff's rights and interests in and to any real or personal property which the defendant owns or possesses when the judgment is rendered. Earlier statute 2 R. S. 146, sec. 47, repealed by L. 1880, ch. 245, sec. 8; 3 R. L, p. 199, ch. 102, L. 1813. Code Civ. Pro., ch. 15, tit. 1, sec. 1759. Where tie action is brought by the wife, the following regulations apply to the proceedings : ' 3. "If, when final judgment is rendered, dissolving the marriage, the plaintiff is the owner of real property ; or has, in her possession, or under her control, any personal property, or thing in action, which was left with her by the defendant, or acquired by her own industry, or V. TENANCY" BY THE CURTESY. 205 1. REQUISITES. 1. MARRIAGE. givea to her by bequest or otherwise ; or if she is or may thereafter be- come entitled to any property, by the decease o£ any relatives intestate, the defendant shall not have any interest therein, absolute or contin- gent, before or after her death." Earlier statutes, 3 R. S. 146, sec. 46, repealed by L. 1880, ch. 345, sec. 1; 3 R. L., p. 199, sec. 6, ch. 103, L. 1813, passed Apr. 13. " The statute of this state (3 R. S. 146, sec. 46) gives to the wife, upon the dissolu- tion of the marriage upon the ground of adultery of the husband, as a matter of right, * * * all the real estate of which the husband is then seized in the right of his wife, and of which she is the real owner; * * * * ^nd the evident intent of the legislature was * » * * to give her such real estate discharged of the husband's life interest therein, as tenant by the curtesy initiate." Per Walworth Ch., p. 435. Benwick v. Benwick, 10 Paige Ch. 430. 3. NATDRB OF WIFE'S TITLE — A FEE SIMPLE IN REAL PROPERTY. As to the husband's rights as tenant by the curtesy in the wife's equitable estates, see 4 Am. and Eng. Bnc. of Law, p. 965, notes and cases cited. Eight of curtesy did not exist in nominal fee in wife, which was sub- ject to and defeated by execution of power of sale in executors. Har- vey V. Brishin, 143 N. Y. 151. Where money stands as and for ike property itself. Eeal property contemplates money where a court of equity would treat it as land. Right of tenancy by the curtesy, where a vested remainder exists in the trust fund. Young v. Langhein, 7 Hun, 151. Money agreed to be set aside for purchase of land. Cosier v. Clarke, 8 Bdw. Ch. 438: Matter of Bodge v. Stevenson Mfg. Co., 14 Barb. 440. * * * "the husband takes an interest by the curtesy in money directed to be laid out in lands for the wife, he in all other respects being entitled as such." Dictum per Hand, J., in Vrooman v. ShepMrd, 14 Hun, 440,' rev'd 77 N. Y. 101. Testator in his will, directed that after paying debts and legacies, the remainder of his estate should be at the disposition and control of the executors for the use of his wife, and children while minors; but that it should be divided equally between them after his youngest grandchild attained its majority. Each minor had an estate and interest in a share of the proceeds resulting from the conversion of the property, while he was such, which ceased with his minority and thereupon vested in those who were still minors, and the wife. X., a daughter of testator, was of age at the death of the testator and died before the youngest child became of age, consequently never having been seized during her life, and coverture of such an estate as could entitle her hus- band Y. to an estate by the curtesy, she never having had possession under the will because of her majority, nor being entitled to any until the youngest should become of age which did not happen during her lifetime. Burke v. Valentine, 53 Barb. 413, affirmed by Court of Appeals, see 6 Alb. L. J. 167. 206 VI. ESTATES FOR LIFE. 1. REQUISITES. 2. NAT0RB OF ■wipe's TITLE — A FEE SIMPLE IN REAL PROPERTY. A testator devised to a daughter, directing the executor to sell. Husband had cur- tesy in the interest of the proceeds in lieu of rents and profits. Dunacomb v. Duns-r comb, 1 Johns. Ch. 508. A testator devised realty in the shape of money, i. e., proceeds of sale by executors, under directions, which shehad laid out in the purchase of a dwelling-house. Held, her husband was entitled to curtesy in the house purchased with such proceeds. In Mat- ter of Kirk V. Richardson, S3 Hun, 434. Note 1. Whether he took the estate as realty of which she was seized during cov- erture or as purchased with money of which she was seized and which itself rep- resented realty, qucere. See, further, Graham v. Dickinson, 3 Barb. Ch. 169. Partition proceedings under sec. 1560 of Gode Civ. Pro. In proceedings for partition of wife's property, where premises were sold by order of court, pursuant to statute, the wife, a tenant in common with two others (other requisites being proper), became entitled to curtesy initiate in her interest, and hence, when premises .were sold under proceed- ings therefor, pursuant to 1 R. L. 510, sec. 5 (now sec. 1560 Code Civ. Pro.) " on application by R. Gr. (husband's creditor) * * * the court or- dered one-third of the proceeds of the sale to be put at interest by the clerk, to be disposed of by the court * * * * according to the rights of the parties at that time." Schermerhorn v. Miller, 2 Cow. 439. "Where a judgment is recovered against the husband, during the pendency of a. .partition suit against him and his wife, for the partition of lands of which he holds an undivided share in right of his wife, a subsequent sale of the lands under the decree in partition divests the legal lien of the judgment creditor upon the husband's legal es- tate in the lands, and converts it into an equitable lien upon the husband's interest in the fund produced by the sale, to the same extent as the legal lien." Ellsworth v. Cook, 8 Paige, 643. Under right of eminent domain. Where a wife's land, in which the husband has a curtesy interest, is directed to be sold, the husband has the same right in the proceeds as he had in their representative, the land, i. e., interest upon the same during his life. A wife died intestate pending proceedings to condemn her lands for public improvements. The husband, who survived and received an award of the entire fee in the premises, had also been appointed guar- dian of the infant children of the marriage, and had given the statutory bond, receipting as guardian for such. Held, that the father was enti- tled to his interest as tenant by the curtesy during his life; also, that the fact of his giving a receipt as guardian for the fund, did not estop him from demanding his life interest. Matter of Petition of Camp, 12& K Y. 377. V. TENANCY BY THE CURTESY. 207 1. REQUISITES. 2. NATURE OF ■wipe's TITLE — A FEB SIMPLE IN REAL PROPERTY. The property my^i be an inheritable freehold. It mast be an estate of inheritance, Young v. Langbein, 7 Hun, 151^ and so it can not be a life estate, Young v. Oeisenheimer, 7 Da. Reg. 373; and arises whether fee be absolute or determinable, 8 Coke, 67; Withers v. Jenkins, 14 S. 0. 597 ; Thornton's Exrs. v. Krepps, 37 Pa. St. 391; see Matter of Kirk v. Richardson, 32 Hun, 434. And continues after fee determined. Under the will of the testatrix, defendant's wife took a fee determin- able upon the happening of two specified events, viz.: the return of her son, and her death without a child surviving, the limitation over to plaintiff thereupon being good as an executory devise; both of which events happened, which determined her estate upon her death. Held, * * * * that defendant had an estate in the land as tenant by the curtesy, other requisites being equal, proper birth o£ issue, etc. The common law rights of a husband as tenant by the curtesy are not affected by the acts of 1848 (L. 1848, ch. 200), and 1849 (L. 1849, ch. 375), for the more effectual protection of the property of married women, as to the real estate of the wife, undisposed of at her death. Where the wife takes by devise an estate in fee, limited by an execu- tory devise which defeats or abridges the fee in case of the happening of a certain event, the seizin and estate which she has will give the hus- band curtesy. Hatfield v. Sneden, 54 N. Y. 280 ; 1 Washb. R Prop. *185 ; McMasters v. Negley, 152 Pa. St. 303. In the opinion of Jotinson, C, p. 285, Lord Coke is quoted thus: "The husband's estate shall continue, for it is not derived merely out of the estate of the wife, but is created by law" "by the privilege and benefit of the lawtocite annexed to the gift." There must be an actual or constructive seizin. "A testator having directed that the income of one-half of his estate should be paid to his widow during her life, and that upon her death the said one-half should be divided equally among his children, abso- lutely, in fee forever, and that the income of the other half should be divided equally among his children until the youngest child should be of age, and then that said half should be divided among his children, absolutely, in fee forever. Held^ that the children took the fee on the death of the testator, subject to the restrictions contained in the will, and upon the death of a married daughter, having had issue, her hus- band would be entitled to his curtesy. Young v. Langlein^ 7 Hun, 151. From opinion. — (Per Brady, J.) The testator made no disposition of his estate in terms, or any part of it, until the event of the death of his wife, when one-half was to 208 VI. ESTATES FOR LIFE. 1. REQUISITES. 2. NATURE OF WIFE'S TITLE — A FEB SIMPLE IN REAL PROPERTY. be divided absolutely in fee among his children by his will, or until the youngest child arrived at age, when half of it was to be divided in like manner among them, in case his wife was living when that event occurred ; otherwise, they then took the whole estate. * * * He meant to give his children his entire estate, burdened only by the right of his wife to the income of one-half." * * * "The children, therefore, took the fee subject to the restrictions and burdens cre- ated by the will." * * * "The testator evidently intended to hold the property together, not to prevent the vesting of the fee, but the division of the corpus of the estate until the happening of the events named.'' " * » * It was the division of the estate that he designed to defer." * * * "It must be said further, that with regard to one-half of the estate the children were in possession, because they were entitled to the rents, issues and profits, with- out limit other than the payment of the expenses attending its possession." (Per Daniels, J.) * * * "His real estate consequently descended to his children in fee, and the plaintiff, as the husband of one of them, may be tenant by the cur- tesy, as to his wife's share." "Wife must be seized in fact to give husband rights as a tenant by curtesy. Qibbs V. Esty, 23 Hun, 266. Seizin in fact by the wife necessary to create a tenancy by the . curtesy. Bee Ch'a- ham V. Luddington, 19 Hun, 246. Possession of lessee no bar to sufficient seizin. * * "It has been held that the possession of a lessee, under a lease reserving rent, is an actual seizin of the husband so long as to entitle him to a life estate in the land as tenant by the curtesy ; although he neither received nor demanded rent during the life of the wife. 3 Atk. 469." Dictum per Walworth Ch.; Ellsworth v. Oooh, 8 Paige, 646. An equitable estate for life no bar to sufficient seizin. (See post, p. 212.) &izin of wild and uncultivated lands sufficient seizin. " Where a yewie covert is owner of wild * * unoccupied * * and uncultivated lands * * (not held adversely to her) she is con- sidered in law, as in fact, possessed, so as to enable her husband to be- come a tenant by the curtesy." Jackson v. Sellick, 8 Johns. 262 ; Jackson v. Johnson, 5 Cow. 98. Seizin of husband in right of his wife sufficient seizin. " The seizin of one tenant in common is the seizin of the others. Accordingly, where a person, in right of his wife, became a partner with others as the owners of a cotton factory and other mills, and in the management of the business thereof, and received a proportionate share of the profits from the time his wife became interested in the property until after her death ; held, that this was sufficient seizin of the wife to V. TENANCY BY THE CURTESY. 209 1. REQUISITES. 3. NATURE OF WIFE'S TITLE — A FEE SIMPLE IN KBAL PEOPEBTY. consummate the estate by the curtesy in the husband." Buckley v. Buckley, 11 Barb. 43. Possession of vendee is no bar to sufficient seizin. K., ancestor; Mrs. B., heir; Mr. B., her husband; T, and J., vendees of K. P., heir of Mrs. B., having a quit claim deed of the curtesy in- terest from Mr. B., brings ejectment ; issue becomes, whether the vendees were holding adversely to the heir (Mrs. B.) of the vendor so as to pre- vent her seizin, and whether the statute of limitations had barred P., incidentally raising the question whether Mr. B. was tenant by the curtesy of lands coming to Mrs. B., if so the quit claim deed was good, aind during his possession as tenant by the curtesy the statute did not run against the heir ; if not, the conveyance was void and the statute had been running in the meantime. Whether B. was tenant by the curtesy involved the question whether possession by the vendee of an ancestor or heir was such as would make seizin in fact of the wife to sustain curtesy. Vrooman v. Sheperd, 14 Barb. 441. (See Code of Civ. Pro. sec. 374.) Note from opinion. — "Tlie defendant further insists that if * ' * (T. and J.) * * * had entered upon and occupied the land under a contract to pur- chase made with * * * (K. ) * * » and payments were made, there was no such seizin in fact as would constitute * * * (Mr. B.) * * * a tenant by the curtesy, and consequently the statute had run against the plaintiff. This proposition is distinct from that in relation to a presumption of a deed in pursuance of the con- tract, from lapse of time. The question is, whether the possession of a vendee of the ancestor is the possession of the heir. * * * But I do not see how a mere posses- sion under the contract to convey could be a disseizin of the vendor or his heir. In England the vendee is considered a tenant at will; the lowest kind of estate, and which may be determined by demand or entry. * » * Possession of a tenant for a term of years is a sufficient seizin to support a tenancy by the curtesy. * * * The after taken wife or husband of vendor, it is said, and the heirs, devisees and grantees, with notice, etc., may be compelled to convey. * * * In this case, if, there was a valid contract to convey * * * Mr. B. * * * and his wife could have been com- pelled to perform, to the extent of their interest, the vendee being in no default. Till then the legal title remains * * *. One in possession of land, under an executory contract, may hold adversely as against strangers. * * * gut the possession of the vendee is not adverse to the vendor. * * * After performance by the vendee, it seems, it may become so. * * * But actual payment was not proved in this case." Becovery in ejectment by the husband jure mariti is sufficient entry and seizin. "A recovery in ejectment by the husband and wife, of lands belong- ing to the wife, gives to the husband such a constructive seizin of the 27 210 VI. ESTATES FOR LIFE. 1. REQUISITES. 2. NATUBE OF wife's TITLE— A FEE SIMPLE IN KEAL PROPERTY. lands as to entitle him to a life estate therein as tenant by the curtesy initiate." " So a decree in partition, settling the right of the husband and wife to an undivided portion of the land in possession of and claimed by the complainant in the partition suit, and directing a sale of the whole premises for the purpose of making partition of the fund produced by the sale, is a sufficient constructive seizin to entitle the husband to claim an interest as tenant by the curtesy." Ellsworth v. Cook, 8 Paige, 643. Note. — Now she recovers in her own right. See sec. 450, Code Civ. Pro. — Ma/rried Women. When wife takes under deed with no adverse possession, entry unnecessary and her seizin is sufficient seizin in fact. Where a wife takes under a deed and there is no adverse holding, no actual entry is necessary for the. seizin requisite for husband's title to curtesy. Jackson v. Johnson, 5 Cow. 74. The doctrine that, to enable the husband to take as tenant by the curtesy, there must be an actual seizin in the wife during coverture, applies only to cases where her title is not complete before entry — as, where she takes by descent or devise — and not where her title is acquired in virtue of a conveyance which, under the statute of uses, passes the legal title and seizin without the necessity of an entry or other act to perfect the estate in the grantee. Adair v. Lott, 3 Hill, 183. But not when there is adverse possession. An estate by the curtesy is not acquired during an adverse posses- sion. Baker v. Oakwood, 49 Hun, 416. Jiule since 1848-49 relating to mai-ried women. The estate of tenancy by the curtesy survives to the husband on the decease of his wife, in all her real property, to which it would have attached at common law, and over which she has not exercised the power of disposition given by the married woman's act of 1848 and 1849. Matter of Winne, 2 Lans. 21. Where there is an intervening life estate which does not terminate during coverture, there is no possession or sufficient seizin in fact to support curtesy. The testator devised his real estate to his two illegitimate children, George and Maria, " in fee to be equally divided between them, share and share alike " " with a limitation over on the death of either without issue to the survivor." V. TENANCY BY THE CURTESY. 211 1. REQUISITES. 2. NATUSE OF wife's TITLE — A FEE SIMPLE IN REAL PROPEKTT. After the death of the testator these childrea went into possession as tenants in common. By proceedings under the statutes concerning nonresident and absconding debtors, which was good as against the daughter, the son's undivided one-half of the premises passed to S. G. and subsequently he and the daughter while yet unmarried partitioned until either George or Maria should die without lawful issue. They exchanged deeds which were valid and binding to pass the estates therein named and the respective parties took exclusive possession of the part thereby conveyed. Thereafter Maria married the plaintiff and died leaving issue, and subsequently George died without issue. The plaintiff's wife (said daughter) was not seized in fact at any time during her coverture of the undivided portion of the premises parti- tioned conveyed to S. G. and consequently plaintiff, her husband, was not entitled to curtesy therein though " the wife died leaving (lawful) issue (the defendant), and subsequently the brother died without issue." * * * " Where there is an outstanding estate for life, the husband can not be the tenant by the curtesy of the wife's estate in reversion or remain- der, unless the particular estate terminate during coverture. Ferguson V. Tweedy, 43 N. Y. 543. Tenant by curtesy — vested remainder. See Young v. Langiein, 7 Hun, 151. A. died leaving a widow and children. The widow continued in possession of the premises, of which he died seized, for three years, when the heirs and persons inter- ested set ofiE and assigned to her as her dower the homestead in " exclusive posses- sion " until her death in 1870. In 1857 one of the heirs conveyed his interest to the wife of one of the children. Such wife died in 1866. In 1875 the father of these latter children purported to convey his curtesy interest to defendants. In an action to recover the same, held, that the setting off with the consent of all the parties inter- ested, and her actual possession thereunder, operated as an assignment of her dower, and that she was in possession of the seizin of her husband from the first, and hence the seizin in such estate for the life of such widow was thereby defeated and hence the heirs of A. had no seizin in fact of vested estate in such property of A. set aside for dower of A. 's wife, and consequently the conveyance from one of them to the wife of one of A.'s children, gave only his interest in remainder ; after that life estate she never became seized in fact of the premises and therefore her husband was not entitled as tenant by the curtesy, and his deed purporting to convey the same to defendants passed nothing. Qibbs v. Esty, 33 Hun, 266. The husband of a woman owning an estate in remainder vesting in possession dur- ing coverture, is entitled to an estate by the curtesy. Trolan v. Rogers, 79 Hun, 507. Where there is a merger of the intervening life estate and the remainder seizin in possession is complete. Testator by his will devised to his daughter, J.- M., wife of Mr. T., 212 VI. ESTATES FOR LIFE. 1. REQUISITES. 2. NATUKE OF WIFB'B TITLE — A FEE SIMPLE IN REAL PROPERTY. and sach of her children as at her decease be living and shall attain the age of twenty -one years; held, that the words relating to her children, being words of purchase and not of limitation, Mrs. T. took a life estate for her life, with (but for the statute against perpetuities) remain- der to the children specified. But the estate to the children was con- trary to the statute against perpetuities and hence void, to the legal consequence that this part of the devise '' descended to Mrs. T. as the heir at law of the testator, and united with her life estate." " Where a life estate, and the immediate reversion, meet in the same person, the particular estate is merged in the greater estate. And if the two estates unite in a feme covert, her husband is entitled to a life estate as tenant by the curtesy." Taylor v. Gould, 10 Barb. 388. An intervening equitable estate for life no such hindrance. After questioning whether the seizin of the estate of a wife, in remainder in fee was sufficient to support curtesy, held, "if, however, the estate for life be a mere equitable interest, the husband's right at law, as tenant by the curtesy, is clear." * * * "as husband, dur- ing her life, became seized of her share as tenant by the curtesy." * * * Adair v. Lott, 3 Hill, 182. 3. NATURE OF HUSBAND'S TITLE. It is an interest and not a charge. " The interest of a tenant by the curtesy is a legal estate in the land, not a mere charge or incumbrance." Adair v. Lott, 3 Hill, 182. 4. BIRTH OF ISSUE. It must be of the marriage, born alive and before mother^s death. " The issue must be born alive and during the marriage and capable of inheriting as heir to the mother ; and the issue must be born during the life of the mother, for if the mother dies * * * the husband in this case shall not be the tenant by the curtesy, because the instant of the mother's death he was clearly not entitled, as having had no issue born." Dictum per Lamont, J. In the Matter of Winne, 1 Lans. 513, rev'd 2 Lans. 21, citing Marsellis v. Thalhimer, 2 Paige, 42. "In the * * * case of a tenancy by the curtesy, it is well settled that the child must be born alive in the lifetime of the mother, to entitle the father to the estate." Dictum per Walworth, Ch., in Marsellis v. Thalhimer, 3 Paige, 43. Dictum to like effect of Southerland J. , in Jackson v. Johnson, 5 Cow. 95, par. 3, sent. 1. V. TENANCY BY THE CURTESY. 213 1. BEQUISITES. 4. BIKTH OF ISSUE. But it is immaterial how long thereafter it lives. As long as born as above, it is immaterial how long it lives. " ' So if he hath issue which dieth before the descent.' " Dictum per Southerland, J., in Jackson v. Johnson, 5 Cow. 95, quoting Lord Coke. See, also, Beamish y. Hoyt, 3 Rob. 307; Mack v. Roche, 13 Daly, 108, in general. It is immaterial whether the issue he horn before or after seizin. "A., in 1787, was vested by act of the legislature, with certain lands in fee, in trust for B., a female infant, and others, he having power to sell, etc. On the 12th May, 1790, he contracted by his attorney, to sell a farm to R., on his (R.'s) paying, etc.; and R. took possession under the contract, and began to improve the land ; but soon assigned his contract to J., who, in 1790, succeeded him in the possession. B., the female cestui que trust, being still an infant, intermarried with C, April 7th, 1792 ; and on the 5th November, of the same year, A. conveyed all the trust property (including the land contracted for by R.) to the cestuis que trust. Afterwards, December 13th, 1793, A., the trustee, by his attorney, con- veyed the fee to J. During the same year, but what time in the year it did not appear, B. had issue, a son, born alive, by her husband C; and afterwards, September 30th, 1795, a daughter. B. died in July, 1797, having attained the age of twenty-one, C, her husband, surviving. The son died intestate and unmarried in 1816, and his father, the husband of B., died in 1817, the daughter surviving." C. was tenant by the curtesy, whether the adverse possession or dis- seizin took place before or after issue of the marriage. "Four things are necessary to constitute a tenancy by the curtesy ; marriage, seizin of the wife, issue, and death of the wife. But it is not necessary that seizin and issue should concur together at one time ; and, therefore, if the wife become seized of lands during coverture, and then be disseized, and then have issue, the husband shall be tenant by the curtesy of these lands ; and on his wife's death, may enter as such ; and, during her life, he is called tenant by the curtesy initiate. So if the wife become seized after issue, though the issue die before her seizin. " As to what shall amount to a seizin ; it is enough that the wife have a tenant in possession, who holds at will, or who entered under a contract to purchase her estate. " And it seems, that the rule which requires actual seizin applies only to cases where it is not complete till entry ; as where the estate cornes to the wife by descent or devise ; not where it comes by purchase, and is transferred into possession by the statute of uses. 214 VI. ESTATES FOR LIFE. 1. REQUISITES. 4. BIRTH OF ISSUE. " The lessor of the plaintiS swora as a witness, at the circuit, without objection, in order to prove the loss of a deed." Jachson v. Johnson, 5 Cow. 74. From opinion.— (Per Sutherland, J., p. 95.) " It is clear that the birth of a child at any time during coverture, whether before or after the commencement of the de- fendant's possession, would constitute Cooper (husband) tenant by the curtesy of all the lands of his wife, of which, during coverture, she was so seized as to support such an estate. Lord Coke says ' * * * if a man taketh a woman, seized of lands in fee, and is disseized, and then have issue, and the wife die, he shall enter and hold by the curtesy. So if he have issue which dieth before the descent.' " It must he capable of inheriting such estate. Co. Litt. 29a. Kice on Eeal Prop. 219. 2. INCIDENTS. 1. CURTESY — HOW BARRED. Curtesy initiate is barred by his death before wife's. Also by antenuptial (or postnuptial after 1892) contract ; by statute of iinaitations — consummate. Thompson v. Grreen, 4 Ohio St. 216 ; Car- ter V. Cantrell, 16 Ark. 154 ; Shortall v. Hinckley, 31 111. 219 ; Kibbie V. Williams, 58 id. 30 ; Weisinger v. Murphy, 2 Head, Tenn., 674. Also by conditions in the deed or will of the property to the wife. See cases, note 1, par. 4, Am. & Eng. Etic. of Law, p. 966. Also by divorce a vinculo. See Statutes, p. 204. Also by execution sale for her debts. Stewart v. Ross, 50 Miss. 776. If husband is not made a party to such sale. Jackson v. Ennis, 25 K J. Eq. 402. Also by conveyance or devise by her after 1848. See effect of statute. Also if he joins in conveying her realty. Jackson v. Hodges, 2 Tenn. Ch. 276 ; Stewart v. Eoss, 50 Miss. 776. " As to husband's right being subject to lien made by his wife. See Forhes v. Sweesy, 8 Neb. 520. 2. HUSBAND ENTITLED TO EXCLUSIVE POSSESSION. The right of a husband to an estate as tenant by the curtesy still ex- ists — when the widow of one of the heirs of the wife is not entitled to dower during the continuance of the said estate. Leach v. Leach, 21 Hun, 881. A., wife of B., died seized of realty, leaving husband and three children her sur- viving who all died intestate and without issue. Plaintiff is a widow of one of these V. TENANCY BY THE CURTESY. 215 2. INCIDENTS. 2. HUSBAND ENTITLED TO EXCLUSIVE POSSESSION. children praying for dower in suoli land. Held, that on A.'s death her husband took life estate in such realty as tenant by the curtesy and hence his possession and en- joyment of such estate could not be interfered with by the heirs, and hence they not having any estate or interest vested in possession, the life estate not having terminated during his life in them during their lives, their death defeated her right to dower. Leach v. Leach, 21 Hun, 381. " One claiming lands as heir of his mother can not recover in ejectmennt against an occupant who entered under tlie father, while there is an outstanding estate for life in the latter as tenant by tlie curtesy." Grout v. lownsend, 2 Hill, 554. ITushand's title to exclusive possession during his life, when once vested. Where the wife died daring the pendeucy for the condemnation of her lands for public purposes and the husband was appointed guardian of the infant children of the marriage, and the circumstances were such as to entitle the husband to an interest in the fund paid for the property taken ; held, in an action by one of the children upon his becoming of age, for an accounting as to his share, that the petitioner had no im- mediate right to demand payment thereof when he became of age and consequently a surrogate had no power, until the husband's life estate was terminated, to compel the guardian to account to the ward for his share, nor to decree payment thereof without the former's consent. Matter of petition of Camp, 126 N. Y. 377. Conveyance of a fee by a tenant by the curtesy — what passes. Jackson v. Manciut, 2 Wend. 357. Conveyance of a fee by a tenant by the curtesy — rights of heirs. See Estates for Life, House v. House, 10 Paige, 158, digested p. 141, 3. HUSBAND ENTITLED TO USE OF PIXTUKES. Fixtures are apart of the really and so far his exclusive use as tenant by the curtesy. » Plaintiff claims as grantee or vendee of Phineas Buckley the husband of Phoebe Buckley. " If this property was real estate, and Phineas was tenant by the curtesy, he had the same right to the fix- tures annexed to the land of his wife, as an ordinary tenant for life. * * * And, of course, as to erections placed upon the premises by the Buckleys for the purpose of trade, the question is substantially between a tenant for life and a remainderman." Per Hand, J., in Buckley V. Buckley, 11 Barb. 64. 4. husband's estate VESTS BY OPEBATION OP LAW. " Curtesy is considered, in many respects, as a continuance of the wife's estate, and the husband takes it after her death with all the incum- 216 VI. ESTATES FOR LIFE. 2. INCIDENTS. 4. husband's estate vests by operation of law. brances which would afEect it in her possession if she were living. Orabb's L. of Eeal Prop. § 1110. I agree with Brother Lamont, that the husband does not take by descent from his wife. His estate is simply that which the common law made it I do, however, insist that there could be no such thing as a tenant by the curtesy, or an estate by the curtesy, until the death of the wife. That the husband, upon the birth of issue, had some rights, and that some feudal duties were imposed upon him, is true." Per Marvin, P. J., Matter of Winne, 2 Lans. 23. 3. ACTIONS BY OB AGAINST TENANT BY THE CURTESY. Tenant by the curtesy must be made a party to an action for parti- tion. Code Civ. Pro., sec. 1538. When he may be made a party. Sec. 1539. " Where a party has an estate by the curtesy for life or for years in an undivided share of the property ;" how partition is made. Same, sec. 1553. A tenant by the curtesy in an undivided sliare of real property may maintain an action for partition. Code of Civil Procedure, sees. 1533-1538. Tilton v. Vail, 53 Hun, 334. An action for partition can not be brought by a tenant by the curtesy — Code of Civil Procedure, sees. 1588, 1557 and 1577 — all the parties, including the infants, are, however, bound conclusively by the entry of a final judgment confirming a sale made in such an action — the only remedy of the infant defendant is an action against their guardian ad litem and his sureties — the failure to give a separate bond to each infant is only an irregularity. See Beed v. Beed, 46 Hun, 213, aff'd 107 N. Y. 545. On curtesy generally, see Vandeveer v. Vandeveer, 17 St. Rep. 648 ; Spaulding v. Cleghorn, 28 id. 897. Action •of waste lies against tenant by the curtesy. Same, sec. 1651. Amount of damages in same. Same, sec. 1655. ''A tenant by the curtesy was always liable for waste. 2 Saund. 252. Though tenants for life were not punishable at common law, but were by statute." Dictum per Hand, J., in Buckley v. Buckley, 11 Barb. 64. 4. CREDITORS. Generally. " Wife seized, has issue of the marriage born alive and dies without disposing. Husband has curtesy, which will pass to a receiver of his property." Beamish v. Eoyt, 2 Eob. 307. V. TENANCY BY THE CURTESY. 217 4. CREDITORS. Creditor bringing his bill before interest by curtesy vests and on different grounds or cause of action. Husband, when not in debt, pays purchase price for land which he has conveyed to wife, and so plaintiff, a creditor of husband, can not attack the conveyance on ground of being in fraud of creditors, and being since 1848, he acquired no interest which creditors could take (see 8 Paige, etc.) during his wife's life, though after her death he be- came tenant by the curtesy. The husband's wife having died pendente lite, thereby vesting in him an interest by the curtesy, the creditor, plaintiff, could not recover that Curtis v. Fox, 47 N. Y. 299. Note. — This case is often cited for proposition that husband's interest by the curtesy is liable for his debts and that he can not release it in fraud of creditors. But an ex- tract from the opinion (per Grower, J.) will show this was not decided. "Here, at the commencement of the action, Fox had no legal interest in the land, and he did not acquire any until long after putting in his answer. The complaint did not allege any, but sought relief upon the ground only that the title of the wif& was fraudulent as against the plaintiff. This was not litigated. Fox (the husband and defendant) had no opportunity to raise the objection that an execution was the* proper remedy for the plaintiff, so far as the interest acquired upon the death of his wife was concerned. He therefore, by his silence, did not waive it." Husband's creditors eaxept such as have obtained their rights bona fide and without notice of the wife's equities, are barred with him in divorce pro- ceedings. "Where the husband has violated marriage contract, or has beem guilty of an act which entitled the wife to a decree for a divorce, or a separation, and for alimony, she is in equity entitled to a restoration of the property which the husband holds by virtue of his marital rights. And the court of chancery, upon the bill of the wife filed for the pur- pose of obtaining a divorce or separation, will not only protect her right to such property as against her husband himself, but also as against judgment creditors and others who do not stand in the situation of bona fide purchasers without notice of her equitable rights and of her inten- tion to enforce them by a suit for a divorce or separation." "So where the husband has married a ward in chancery without the: consent of the court or of her legal guardian, the court, upon the ground of the husband's contempt, has jurisdiction to interfere, upon the appli- cation of the friends of the infant wife even without her consent, to restrain the husband and his creditors from intermeddling with her estate until a proper settlement is made for the support of the wife and of the issue of the marriage." 28 218 VI. ESTATES FOB LIFE. 4. CREDITORS. " The court of chancery will protect the wife's equity in the property which the husband acquires by the marriage, whenever the husband comes into that court as a party for the purpose of enforcing his claim to such property." Van Duzer v. Van Duzer, 6 Paige, 366. In partition proceedings under section 1560, a creditor's rights are trans- ferred from the property to the proceeds arising therefrom. "Where a judgment is recovered against the husband during the pen- dency of a partition suit against him and his wife, for the partition of lands of which he holds an undivided share in right of his wife, a sub- sequent sale of the lands under the decree in partition divests the legal lien of the judgment credi^ior upon the husband's legal estate in the lands, and converts it into an equitable lien upon the husband's interest in the fund produced by the sale to the same extent as the legal lien. "Where the real estate of the wife, in which the husband has a life «state as tenant by the curtesy initiate, is sold under a decree in par- tition, the creditors of the husband may, by a creditor's bill, reach his interest in the fund produced by the sale, to the extent of his legal in- terest in the estate sold. But they can not reach the wife's reversionary interest in the fund after the termination of the husband's life interest therein; where it has not been paid over to the husband, but has been invested for the separate use of the wife and her children under the or- der of the court." UUsivorth v. Cook, 8 Paige, 642. A., B. and C. were tenants in common. By marriage and the proper birth of issue, D., the husband of C, became entitled as tenant by the curtesy initiate. E. became D.'s creditor, and D.'s interest was sold to him on execution. A., B. and C. parti- tioned, and, according to 1 R. L. 510, sec. 5, premises were sold and were purchased by E. "On application by (E.) * * * tlie court ordered one-third of the proceeds of the sale to be put at interest by the clerk, to be disposed of by the court * » * according to the rights of the parties * * * Saliermerlwrn v. Miller, 2 Cow. 439. A release of the curtesy, where not solvent, is in fraud of creditors. A husband, having become embarrassed, settled upon the wife all of the property which had come to her from an uncle ; as to personalty, to the extent which equity would have protected her, this was good against his- creditor, but as to the excess it was void. Wickes V. Clarke, 8 Paige, 161. From opinion.— (Per Walworth, Ch. p. 171-3.) " * * * so far as relates to the husband's interest as tenant by the curtesy initiate in his wife's real es- tate" (he overrules vice-chan.) " In the case of Van Duzer v. Van Duzer, 6 Paige'^ Hep. 366, upon a review of all the cases on the subject, I arrived at the conclusion that the legal estate of the husband in hia wife's real property as tenant by the ■curtesy initiate, could not be protected in equity from the claims of his creditors who iiad a right to sell the same upon their executions at law. As the debt in the present V. TENANCY BY THE CURTESY. 219 4. CREDITORS. case existed at the time of this settlement In 1829, and as there is nothing in the case to show that the husband retained to himself suflBcient property of his own to satisfy- all existing debts or claims for which he was then liable, the assignment of Ids life es- tate in his wife's lands can not be sustained as against these prior creditors. ^- * ^ The decree declared the husband's life estate in his wife's real property * * * to be inoperative and void as against the complainants' judgment. * * * The conveyance of the real estate * * * is valid, except as against the previous credi- tor of the husband," and therefore so much of the realty as is necessary to be sold to satisfy the debts of the complainant. When the wife has not an equitable right to restrain husband's creditors from execution against the curtesy estates of the hiLsband. " Where the husbaad has been guilty neithei- of contempt in acquir- ing the legal title to his wife's property (nor of ' collusion, or a conspiracy between her husband and mere nominal creditors to deprive her and her children of an equitable right to a provision for support out of her property'), nor oE such misconduct as entitled her to a divorce or a de- cree for a separation from bed and board, the court of chancery can not, upon the application of the wife, interfere with the husband's legal title as tenant by the curtesy initiate in his wife's property, so as to place it beyond his reach or the reach of his creditors and secure it for the sup- port of the wife and her children." " The bill was filed against the husband of the complainant and two of bis judgment creditors, to restrain the latter from selling the hus- band's interest, as tenant by the curtesy initiate, "in the real estate of the wife which belonged to her before her marriage ; the husband being insolvent and worthless, and neglecting to provide for her children. * * * The only question to be decided * * * upon the present application is, whether this court has any power to reach this life interest so as to preserve it for her support ; and thus to protect her and her helpless children against a vicious and improvident husband and his creditors." Van Duzer v. Van Duzer, 6 Paige, 366. Note. The above is a case in equity. She has no legal right to interfere on any ground of that nature. Curtesy is subject to the debts of the wife. Tenancy by the curtesy, subject to debts of wife. Arrowsmith v. Arrovjsmith, 8 Hun, 606. 5. ACTS RELATING TO MARRIED WOMEN. L. 1848, ch. 200, and L. 1849, ch. 375, relating to married women. The acts of 1848 and 1849, to protect the rights of married women, are not liable to objection, as imparing the obligation of a contract, be- 220 VI. ESTATES FOB LIFE. 5. ACTS RELATING TO MARRIED WOMEN. cause they defeat the expectation which the father of a living child had, previous to those acts, of being tenant in curtesy in lands acquired by his wife during coverture, and subsequent to these acts. Mrs. T. married in 1833, issue born, whereupon Mr. T., prior to the acts of 1848-9, would have been entitled thereafter to all her estates of inheritance of which she was seized in fact at any time thereafter ; i. e., during the rest of her coverture. The land in question, in which a life estate by the husband is sought, came to Mrs. T. in 1853, long after the acts of 1848-9. Mr. T., supposing he had the right to the property in mariti and was tenant by the curtesy initiate, leased the same to defend- ants. Mrs. T. thereupon sues the latter to recover possession. Defend- ant contended, in the mayor's court, that Mr. T., by his marriage and birth of issue, acquired an estate by the curtesy in the land of bis wife, which could not be defeated by the legislature. Defendant excepted. But verdict for plaintiff, which was reversed by the supreme court, which latter was reversed by court of appeals reinstating judgment of mayor's court Thurher & Stevenson v. Townsend & Wilbur^ 22 N. Y. 517. Burke v. Valentine, 53 Barb. 412, aflBrmed in 1872 by court of appeals. See 6 Alb. L. J. 167. By the court, per Ingraham, P. J. " Neither of these statutes (1848 or 1849) In words relate to the property or the rights of any one in the property of the wife after her death, in cases where she has not conveyed the same during coverture, or devised the same to others after her death. In such cases it is very clear the husband could have no estate by curtesy, because it would interfere with the right conferred upon her of conveying or devising the same, or any interest therein. If then this estate of tenancy by the curtesy is taken away, it is because it is inconsistent with the provis- ions of these statutes, and the intent of the legislature in passing them." After summarizing the following cases. Surd v. Cass, 9 Barb. 366; Blood y. Hum- phrey, 17 id. 660; ShumwayY. Cooper, 16 id. 556; Clark v. Clark, 34 id. 581; Lansing Y. Ouliek, 36 How. Pr. 350; Jaycox v. Collins, id. 497; Yallance v. Bausch, 38 Barb. 633; and distinguishing GolmriY. Currier, 33 id. 871, and overruling Billings v. Baker, 28 id. 843, he concludes : " * * * the acts of 1848 and 1849 have cot interfered with or taken away the right of the husband to the personal estate or the estate by the curtesy in the real property of the wife after her death, if not disposed of by her either during life or by will to take effect at her death." "The common law rights of a husband as tenant by the curtesy are not afifected by the acts of 1848 (L. 1848, ch. 200), and 1849 (L. 1849, ch. 375), for the more effectual protection of the property of mar- ried women, as to real estate of the wife undisposed of at her death." Hatjkld V. Sneden, 54 N. Y. 280. " The estate of tenancy by the curtesy survives to the husband on the decease of his wife, in all her real property, to which it would have attached at common law, and over which she has not exercised the power of disposition given by the married woman's act of 1848 and 1849. V. TENANCY BY THE CURTESY. 221 5. ACTS RELATING TO MARRRIED WOMEN. So7ield, reversing the decision at special term in tliis case," i. e., 1 Lans. 508; In the matter of Winne, 3 id. 31. "The right to the tenancy by the curtesy was not taken away by the laws of 1848 and 1849, as to property of married women, or the amendments thereof. There has been considerable conflict in the decisions upon this question, but we think the weight of authority is clearly in favor of the view just expressed" (per Hardin, J.). Citing cases, see below. Leach v. Leach, 31 Hun, 383. A husband and wife were married prior to the passage of the married women's acts (L. 1848, ch. 300, as amended by L. 1849, ch. 375), and in 1856, through a third per- son, the husband conveyed certain real estate to his wife. Held, that the property acquired by the wife subsequent to the marriage was sub- ject to any change, as to its disposition on her death, which the legislature might direct. That the husband was entitled to the personal property of the wife acquired before the passage of the married women's acts. Matter of Mitchell v. Gurtis, 61 Hun, 373. Curtesy initiate since statutes of 1848-9 is not an interest in lands. Dictum, per Bradley, J., in Matter of Clark, 40 Hun, 337. A husband and wife were married and had issue prior to the passage of the married women's acts (L. 1848, ch. 200, as amended by L. 1849, ch. 375), and in 1856, through a third person, the husband conveyed certain real estate to his wife. Held, that the husband did not, by reason of the marriage and the birth of issue prior to 1848, acquire a vested right to a tenancy by the curtesy in such lands which the wife could not defeat by a subsequent testamentary disposition thereof. Matter of Mitchell v. Gurtis, 61 Hun, 373. For cases on the same subject in the inferior courts, see Clark v. Clark, 5 Barb. 474; Hurd v. Cass, 9 id. 366; White v. White, 34 id. 581; Rider v. Hulse, 33 id. 364 ; Jaycox V. Collins, 26 How. Pr. 496; Zimmerman v. Schoenfeldt, 6 T. & C. 143. L. 1860, ch. 90, sees. 10, 11. L. 1860, ch. 90, sec. 10, passed March 30. At the decease of husband or wife, leaving no minor child or children, the survivor shall hold, possess or enjoy a life estate. in one- third of all the real estate of which the husband or wife died seized Repealed by L. 1863, ch. 173, sec. 3. Sec. 11. At the decease of the husband or wife intestate, leaving minor child or children, the survivor shall hold, possess and enjoy all the real estate of which the husband or wife died seized and all the rents, issues and profits thereof during the minority of the youngest child, and one-third thereof during his or her natural life. Repealed by L. 1863, ch. 173, sec. 3. It has been questioned (see Gerard's Titles, 159,) whether this statute did not abolish, while in existence, curtesy for certain purposes. Note. — As to the constitutionality of these acts of 1848 and 1849. "The act of 1848, 'for the more effectual protection of the property of married wo- men,' so far as it affects the husband's existing rights under a marriage contracted be- fore the act, has been declared unconstitutional, as taking away the husband's property, in violation of article 1, sections 1, 6 of the Constitution. This would apply to lands acquired before the act. Under that act, and the act of 1849, ante, p. 75, the hus- hand continues to take as tenant by the curtesy even of lands acquired subsequent to 222 VI. ESTATES FOR LIFE. 5. ACTS RELATING TO MARRIED WOMEN. them, -where the wife dies seized of the estate, without having transferred it. The object of those statutes was simply to protect 'the wife during coverture, and to em- power her to convey by deed or devise." Gerard's Titles, 158. 6. CURTESY NOT AFFECTED BY LAWS OF DESCENT. L. 1896, ch. 547, art. 2. The descent of real property. Sec. 280. " This article does not affect * * * a tenancy by the curtesy. * * * " 1 E. S. 754, ch. 2 (passed Dec. 4, 1837, took effect Jan. 1, 1830), of title to real property by descent. Sec. 20. " The estate of a husband as tenant by the curtesy * * * shall not be affected by any of the provisions of this chapter : * ♦ *." Cases cited upon this statute : Billings v. Baker, 15 How. Pr. 525 ; Smith v. Schanck, 28 Barb. 344 ; Graham v. Luddington, 19 Hun, 246 ; Leach v. Leach, 21 id. 381 ; Gibbs v. Esty, 23 id. 266. See 1 R. L., p. 54, ch. 13, L. 1786, passed Feb. 33, 1786. VI. PRESUMPTION OP DEATH OP LIFE TENANT. *Code Civil Procedure, sec. 841 (in effect, Sept. 1, 1877). "Presumption of death in certain cases." "A person upon whose life an estate in real property depends, who remains without the United States, or absents himself in the state or elsewhere for seven years to- gether, is presumed to be dead in an action or special proceeding con- cerning the property in which his death comes in question, unless it is affirmatively proved that he was alive within that time. And wherein any action of partition in this state any portion of the proceeds of the sale of real property is or has been paid into court, or paid to the treas- urer of any county for any unknown heirs, and has remained unclaimed for twenty-five years, after such payment by any person entitled thereto, the lapse of twenty-five years after such payment raises the presumption of the death of such unknown heirs at the time of the sale of such real property, and before such payment, and after the lapse of twenty-five years after such payment it shall be presumed that there were no such unknown heirs living at the time of such sale or payment, and in any action or proceeding taken for the purpose of distributing and paying over such proceeds, all such unknown heirs are presumed and they shall be presumed to have been dead at the time of such sale and before such, payment into court, or to the treasurer of any county." 1 R. S. 749, sec. 6, repealed by L. 1880, ch. 245, sec. 1, in effect Sept. 1. 1 R. L. 103, sec. 1, in effect Peb. 6th, 1788, repealed by L. 1828, second meeting, ch. 31, sec. 1, par. 21, in effect Jan. 1, 1830. Same as R. S. »Sec. 841 was amended by L. 1891, ch. 463. VII. LEASES BY LIFE TENANT. 223 VII. LEASES BY LIFE TENANT. L. 1896, ch. 547 (Gen'i L., ch. 46, in effect Oct. 1, 1896), sec. 135. Power of life tenant to make leases. " The power of a tenant for life to n:iake leases is not assignable as a separate interest, but is annexed to his estate, and passes by a grant of such estate unless specially ex- cepted. If so excepted, it is extinguished. Such a power may be re- leased by the tenant to a person entitled to an expectant estate in the property, and shall thereupon be extinguished." 1 R. S. 733, sees. 88, 89, repealed by L. 1896, ch. 547, sec. 300. L. 1896, ch. 547 (Gen'l L., ch. 46, in effect October 1, 1896), sec. 123. A special and beneficial power may be granted, I * * * * * * 2. "To a tenant for life, of the real property embraced in the power, to make leases for not more than twenty-one years, and to commence in possession during his life ; and such a power is valid to authorize a lease for that period, but is void as to the excess." 1 R. S. 788, sec. 87, in effect Jan. 1. 1830, repealed by L. 1896, ch. 547, sec. 300. Root V. Stuyvesant, 18 Wend. 357-370 ; Hone's Ex'rs v. Van Schaick, 30 id. 564. For leases of property held in trust upon notice to the beneficiary, see Real Prop. L., sees. 86, 87. VIII. RESTRICTIONS ON CREATION OP LIFE ESTATES. The statute, in several instances, places restrictions upon the creation of life estates. Sec. 33 of the Real Prop. L. (L. 1896, ch. 547, taking effect Oct. 1st, 1896) prohibits the limitation of more than two successive life es- tates, and then only to persons in being at the creation thereof ; and avoids all life estates subsequent to those of the two persons first enti- tled, and vests any remainder, if it be vested, upon the expiration of such first two estates. See this section considered, post, p. 365. Sec. 34 of the Real Prop. L. (L. 1896, ch. 547, taking effect Oct. 1st, 1896) provides that remainders created on an estate for the life of any other person than the grantee ur devisee thereof shall not be less than a fee, and that the remainder created upon such life estate in a term of years shall be for the residue of such term. But by section 40 of the Real Property Law, an estate for life may be created on a term of years and remainder limited thereon, subject to the provisions of article two. See these sections considered, post, p. 365. Sec. 35 of the Real Prop. L. (L. 1896, ch. 547, taking effect Oct. 1st, 224 VI. ESTATES FOB LIFE. 189{>) provides that where a remainder is created oa an estate for the life of any other person than the grantee or devisee, and more than two persons are named as the persons during whose lives the life estates shall continue, the remainder shall take effect upon the death of the two persons first named. See section considsred, post, p. 367. Sec. 37 of the Eeal Prop. L. (L. 1896, ch. 547, taking effect Oct. 1st, 1896) provides that no estate for life shall be limited as a remainder on a term of years, except to a person in being at the creation of such es- tate. See section considered, post, p. 240. Sec. 40 of the Eeal Prop. L. (L. 1896, ch. 547, taking effect Oct. 1st, 1896) permits a fee or an estate less than a fee to be " limited upon a fee on a contingency, which, if it shall occur, must happen within the period prescribed in this article." See section considered, post, p. 241. YII. CHATTELS EEAL. I. ESTATES FOR YEARS. Sec. 23 of the Real Prop. L. (L. 1896, ch. 547, taking effect Oct. 1st,, 1896) classifies estates for years as chattels real. See ante, p. 86. Although the subject is beyond the purposes of the present work, th© following statutes relating to estates for years are given at length.* Sea 190 of the Real Prop. L. (L. 1896 ch. 547, took effect Oct. 1st, 1896). Action for Use and Occupation. "The landlord may recover a reasonable compensation for the use and occupation of real propeity, by any person, under an agreement, not made by deed; and a parol lease or other agreement may be used as evidence of the amount to which he is entitled." 1 R. S. 748, sec. 26, repealed. Sec. 191 of the Real Prop. L. (L. 1896, ch.. 547, took effect Oct. 1st, 1896). Rent due on life leases recoverable. " Rent due on a lease for life or lives is recoverable by action, as well after as before the death of the person on whose life the rent depends, and in the same manner as rent due on a lease for years." 1 R. S. 747, sees. 19, 20, repealed; L. 1846, eh. 374. Sec. 192 of the Real Prop. L. (L. 1896, ch. 547, took effect Oct. 1st, 1896). When rent is apportionable. " Where a tenant for life, who shall have demised the real property, dies before the first rent day, or between two rent days, his executor or administrator may recover the proportion of rent which accrued to him before his death." 1 R. S. 747, sec. 32, repealed. Sec. 193 of the Real Prop. L. (L. 1896, ch. 547, took effect Oct. 1st, 1896). Rights where property or lease is transferred. " The grantee of leased real property, or of a reversion thereof, or of any rent, the devisee or assignee of the lessor of such a lease, or the heir or personal represent- ative of either of them, has the same remedies, by entry, action or otherwise, for the non-performance of any agreement contained in the assigned lease for the recovery of rent, for the doing of any waste, or for other cause of forfeiture as his grantor or lessor had, or would have had, if the reversion had remained in him. A lessee of real property, his assignee or personal representative, has the same remedy against the lessor, his grantee or assignee, or the representative of either, for the *ADnotatlons under these sections may be conveniently found in Logan's Real Property Law. 29 (335) 226 VII. CHATTELS REAL. breacli of an agreement contained in the lease, that the lessee naight hare had against his immediate lessor, except a covenant against incumbran- ces or relating to the title or possession of the premises leased. This section applies as well to a grant or lease in fee, reserving rent, as to a lease for life or for years; but not to a deed of conveyance in fee, made before the ninth day of April, eighteen hundred and five, or after the fourteenth day of April, eighteen hundred and sixty." 1 R. S. 747, sec. 23, 34, repealed. Sec. 194 of the Real Prop. L, (L. 1896, ch. 547, took eflEect Oct. 1st, 1896). Attornment by tenant. " The attornment of a tenant to a stranger is absolutely void, and does not in any way affect the possession of the landlord unless made either, 1. With the consent of the landlord; or, 2. Pursuant to or in consequence of a judgment, order, or decree of a court of competent jurisdiction ; or, 3. To a mortgagee, after the mortgage has become forfeited." 1 R. S. 744, sec. 3, repealed. :Sec. 195 of the Real Prop. L. (L. 1896, ch. 547, took effect Oct. 1st, 1896). Notice, of action adverse to possession of tenant. " Where a process or summons in an action to recover the real property occupied by him, or the possession thereof, is served upon a tenant, he must forthwith give notice thereof to his landlord; otherwise he forfeits the value of three years' rent of such property to the landlord or other per- son of whom he holds." 1 R. S. 748, sec. 37, repealed. Sec. 196 of the Real Prop. L. (L. 1896, ch. 547, took effect Oct. 1st, 1896). Effect of renewal on sub-lease. " The surrender of an under- lease is not requisite to the validity of the surrender of the original lease, where a new lease is given by the chief landlord. Such a surren- der and renewal do not impair any right or interest of the chief landlordj his lessee or the holder of an under lease, under the original lease ; in- cluding the chief landlord's remedy by entry, for the rent or duties secured by the new lease, not exceeding the rent and duties reserved in the original lease surrendered." 1 R. S. 744, sec. 3, repealed; L. 1846, ch. 374. SecL 197 of the Real Prop. L. (L. 1896, ch. 547, took effect Oct. 1st, 1896). When tenant may surrender premises. "Where any building, which is leased or occupied, is destroyed or so injured by the elements, or any other cause as to be untenantable, and unfit for occupancy, and no express agreement to the contrary had been made in writing, the lessee or occupant may, if the destruction or injury occurred without L ESTATES FOR YEARS. 227 his fault or neglect, quit and surrender possession of the leasehold prem- ises, and of the land so leased or occupied ; and he is not liable to pay to the lessor or owner rent for the time subseqtient to the surrender." L. 1860, ch. 345, repealed. Sec. 198 of the Eeal Prop. L. (L. 1896, ch. 547, took effect Oct. 1st, 1896). Termination of tenancies at will or by sufferance by notice. "A tenancy at will or by sufferance, however created, may be termi- nated by a written notice of not less than thirty days given in behalf of the landlord, to the tenant, requiring him to remove from the prem- ises ; which notice must be served, either by delivering to the tenant or to a person of suitable age and discretion, residing upon the premises, or if neither the tenant nor such a person can be found, by affixing it upon a conspicuous part of the premises, where it may be conveniently read. At the expiration of thirty days after the service of such notice, the landlord may re-enter, maintain ejectment, or proceed, in the manner prescribed by law, to remove the tenant, without further or other notice to quit." 1 R. S. 745, sees. 7, 8, 9, repealed. Sec. 199 of the Keal Prop. L. (L. 1896, ch. 54:7, took effect Oct. 1st, 1896). Liability of tenant holding over after giving notice of intention to quit. " If a tenant gives notice of his intention to quit the premises held by him, and does not accordingly deliver up the possession thereof, at the time specified in such notice, he or his personal representatives must, so long as he continues in possession, pay to the landlord, his heirs or assigns, double the rent which he should otherwise have paid, to be recovered at the same time, and in the same manner, as the single rent." 1 R. 8. 745, sec. 10, repealed. Sec. 200 of the Eeal Prop. L. (L. 1896, ch. 547, took effect Oct. 1st, 1896). Liability of tenant holding over after giving notice to quit. ^' Where, on the termination of an estate for life, or for years, the person entitled to the possession demands the same, and serves, in the same manner as for the termination of a tenancy at will, a written notice to quit, if the tenant, or any person in possession under him, or by col- lusion with him, willfully holds over, after the expiration of thirty days from such service, he must pay to the person so kept out of possession, or his representatives, at the rate of double the yearly value of the prop- erty detained, for the time while he so detains the same, together with all damages incurred by the person so kept out by reason of such deten- tion. There is no equitable defense or relief against a demand accrued, or a recovery had, under this section." 1 B. S. 74S, sec. 11, repealed. Sec. 201 of the Eeal Prop. L. (L, 1896, ch. 547, took effect Oct. 1st, 228 VII. CHATTELS REAL. 1896). Liability of landlord where premises are occupied for unlawful purpose. " The owner of real property, knowingly leasing or giving possession of the same to be used or occupied, wholly or partly, for any unlawful trade, manufacture or business, or knowingly permitting the same to be so used, is liable severally, and also jointly with one or more of the tenants or occupants thereof, for any damage resulting from such unlawful use, occupancy, trade, manufacture, or business." Sec. 202 of the Keal Prop. L. (L. 1896, ch. 547, took effect Oct. 1st, 1896). Duration of certain agreements in New York. "An agree- ment, for the occupation of real property in the city of New York, which shall not particularly specify the duration of the occupation, shall be deemed to continue until the first day of May next after the possession commences under the agreement; and rent thereunder is payable at the usual quarter days, for the payment of rent in that city, unless otherwise expressed in the agreement." 1 R. S. 744, sec. 1, repealed. Sec. 207 of the Real Prop. L. (L. 1896, ch. 547, took effect Oct. 1st, 1896), includes leases for a term exceeding one year, in the provision for written conveyances. Sec. 212 of the Real Prop. L. (L. 1896, ch. 547, took effect Oct 1st, 1896). Conveyance by a tenant for life or years of greater estate than possessed. " A conveyance made by a tenant for life or years, of a greater estate than he possesses, or can lawfully convey, does not work a forfeiture of his estate, but passes to the grantee all the title, estate or interest which such tenant can lawfully convey." 1 R. S. 739, sec. 145, repealed. Sec. 213 of the Real Prop. L. (L. 1896, ch. 547, took effect Oct. 1st, 1896). Effect of conveyance where property is leased. " An attornment to a grantee is not requisite to the validity of a conveyance of real prop- erty occupied by a tenant, or of the rents or profits thereof, or any other interest therein. But the payment of rent to a grantor, by his tenant, be- fore notice of the conveyance, binds the grantee ; and the tenant is not liable to such grantee, before such notice, for the breach of any condi- tion of the lease." 1 R. 8. 739, sec. 146, repealed. Sec. 224 of the Real Prop. L. (L. 1896, ch. 547, took effect Oct. 1st, 1896). When contract to lease or sell void. 'A contract for the leas- ing for a longer period than one year, or for the sale of any real prop- erty, or an interest therein, is void, unless the contract, or some note or memorandum thereof, expressing the consideration, is in writing, sub- scribed by the lessor or grantor, or by his lawfully authorized agent." 2 R. S. 135, sees. 8, 9, repealed. I. ESTATES FOR YEARS. 229 Sec. 240 of the Eeal Prop. L. (L. 1896, ch. 547, taking effect Oct. 1st, 1896), relating to the recording of instruments, provides that the term •" real property," as used in article eighth, includes lands * * and chattels real, except a lease for a term not exceeding three years ; and that the term "conveyance" includes every written instrument by which an estate or interest in real property is granted * * ; except "* * * a lease for a term not exceeding three years. The provisions respecting leases in the Code of Civil Procedure are found at the following sections: 1505, 1506-1510, 1508, 2253, 2256-3259, 2358, 2675, 2760, 2800. II. ESTATES FOR LIFE OF THIRD PERSON. Sec. 24 of the Eeal Prop. L. (L. 1896, ch. 547, taking effect Oct. 1st, 1896), so terms the remnant of an estate for the life of a third person after the death of the life tenant See ante, p. 86. The Eeal Property Law also provides as follows : Sec. 39. " Lim- itations of Chattels Eeal. All the provisions contained in this article relative to future estates apply to limitations of chattels real, as well as of freehold estates, so that the absolute ownership of a term of years shall not be suspended for a longer period than the absolute power of alienation can be suspended in respect to a fee." See section consid- ered, post, p. 498. VIII. CHATTEL INTERESTS. Sec. 23 of the Eeal Prop. L. (L. 1896, ch. 547, taking effect Oct 1st, 1896), provides that estates at will or by sufferance shall continue to be chattel interests, but not liable as such to sale on execution. Sec. 198 of the Real Prop. L. (L. 1896, ch. 547, taking effect Oct. 1st, 1896), provides for the termination'of tenancies at will or bj sufferance by notice. See statutes relating to estates for years as above given. IX. ESTATES IN POSSESSION AND EXPECTANCY. Eeal Prop. L., sec. 25. Estates in possession and expectancy. " Es- tates, as respects the time of their enjoyment are divided into estates in possession,* and estates in expectancy. An estate which entitles the owner to immediate possession of the property is an estate in possession. An estate in which the right of possession is postponed to a future time is an estate in expectancy." 1 R. S. 732, sec. 7, Ba-nks's 9th ed., p. 1789, repealed by Real Prop. L. "Estates as respects the time of their enjoyment are divided into estates In possession and es- tates in expectancy." 1 R. S. 733, sec. 8, Banks's 9th ed., p. 1789, repealed by Real Prop. L. "An es- tate in possession is where the owner has an immediate right to the possession of land. An estate in expectancy is where the right to the possession is postponed to a future period." * Estates in possession. Here the right to enjoy is not only certain, but the right Is one of Immediate en- joyment. The tenant is entitled actually to receive the profits of the land. The ac" tual receipt may be withheld wrongfully from him; another may be in truth in pos. session of the land, or receiving the profits without his consent. This is immaterial, for, by right, if he should receive the profits as the owner o f the estate, he is legally the tenant of an estate in possession. Estates in possession are such as usually follow conveyances of land by the delivery of a deed thereof, devises of estates taking effect In enjoyment on the death of the testator; interests in land created by lease in prmenli~ (280) k X. ESTATES IN" EXPECTANOT. Eeal Prop. L., sec. 26. Enumeration of estates in expectancy. "All expectant estates, except such as are enumerated and defined in this article, have been abolished. Estates in expectancy are divided into : 1. Euture estates ; and, 2. Reversions." 1 R. S. 723, sec. 9, Banks's 9tli ed., p. 1789, repealed by Real Prop. L. Estates in expectancy are divided into : 1. Estate: commencing at a future day, denominaled future estates; and, 8. Reversions." 1 R. S. 736, sec. 43, Banks's 9tli ed., p. 1794, repealed by Real Prop. L. "All ex- pectant estates, except such as are enumerated and defined in this article, are abol- ished." I. REVERSIONS. Real Prop. L., sec. 29. Definition, reversion. "A reversion is the residue of an estate left in the grantor or his heirs, or in the heirs of a testator, commencing in possession on the determination of a particular estate granted or devised." ' Same as 1 R. S. 733, sec. 13, Banks's 9th ed., p. 1790, repealed by Real Prop. L. Explanatory note. — If A., owning land, grant to B. for life, then to C, in fee, C. takes by remainder ; if A. simply grant to B. for life, then the estate of inheritance is undisposed of ; hence the fee continues in A. and his estate is a reversion. Yet neither A. nor C. can enjoy ' in possession until B. shall have died. The following are characteristics of a reversion : 1. It arises by operation of law, and not by deed or will. 2. It is a vested" interest or estate. Kent's Com. vol. 4, *354. 3. It is not within the statutes against perpetuities, p. 410. On the rights of reversioners and remaindermen respecting propei ty sold for taxes or assessments, see N. Y. Gen. L. 1848, ch. 341; N. Y. Gen. L. 1842, chs. 154, 393; N. Y. Gen. L. 1855, ch. 327. As to taxable transfers, see N. Y. Gen. L. 1896, vol. 1, p. 868; N. Y. Gen. L. 1892, ch. 399. " 'The idea of a reversion is founded on the principle that, when a person has not parted with his whole estate and interest in a piece of land, all that which he has not given away remains in him; and the possession of it reverts or returns to him, upon the determmation of the preceding estate." Greenleaf's Cruise on Real Prop., vol. 1, p. 340. 'As to contingent reversions, see Floyd v. Carow,,88 N. Y. 560; also see Chaplin on the suspension of the Power of Alienation, p. 79. (231) 232 X. ESTATES IN EXPECTANCY. Eespeoting actions for waste, see Code Civ. Pro., sees. 1651, 1652, 1665. II. FUTURE ESTATES. Real Prop. L., sec. 27— Definition of future estates. "A future estate is an estate limited to commence in possession at a 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. 1 R. S. 733, sec. 10, Banks's 9th ed., p. 1790, repealed by Real Prop. L. the same. Real Prop. L., sec. 28. Definition, remainder. "Where a future es- tate is dependent on a precedent estate it may be termed a remainder, and may be created and transferred by that name." 1 R. S. 733, sec. 11, Banks's 9th ed., p. 1790, repealed by Real Prop. L., the same. Explanatory note to secs. 25-29.— Sections twenty to twenty- five inclusive treat of the quantity or duration of the tenant's interest, irrespective of the period when he has a 7-ighi to enjoy the same. The foregoing sections, twenty-five to twenty-nine, treat exclusively of the time when the tenant may by right begin the actual enjoyment of an estate. These last enumerated sections classify estates, as respect such time of enjoyment, as follows : Future Estates. Reversions. Created by act of parties.* Created by act of law.* Remainders — other future estates, 't'^ested estates — contingent estates. It will be observed that by the Real Property Law, Estates in Expect- ancy are divided into Future Estates, and Reversions, and that by sec- tion 28 a future estate, when limited on a precedent estate, is called a "remainder". But the common law division of expectant estates was confined to Remainders and Reversions. Greenleafs Cruise on Real Prop. 225; Kent's Com. *198. Why then do the statutes contemplate future estates other than " Remainders "? The reason is this; the common law rule refers only to legal estates created in conveyances and does not include certain interests in land created contrary to the rules of limitation of such estates (Kent's Com. vol. 4, *264:); su ch were Ex- ecutory Devises, Shifting or Secondary Uses, Springing Uses, Future or Contingent Uses and Conditional Limitations. Our statutes classify all such estates, as well as remainders, under the common head of Future Estates. Executory Devises and conditional limitations were created by will, and conditional limitations and the other estates men- *Kent's Com. vol. 4, *197-8. ' II. FUTURE ESTATES. 233 tioned were created by conveyances, but these, save remainders, were Conveyances to uses. It ia now proposed to point out the characteristics and distinguishing features of these various future estates. 1. REMAINDERS. Sec. 28, defines a remainder as an estate limited to begin in enjoy- ment upon the natural termination of a precedent estate, created at the same time.* The precedent estate. A particular or precedent estate was necessary at common law to sup- port a vested remainder amounting to a freehold estate, because a free- hold could not be created to commence in the future, without an estate vested in possession to support it intervening the time of the creation of tbe remainder and the time when it should be enjoyed in possession. This rested on tlie feudal theory that there must be a delivery of the possession of a freehold estate to continue until the actual enjoyment of the remainder, f Where there was a precedent estate the remainderman was regarded as seized of his remainder at the same time that the tenant of the par- ticular estate became possessed of his estate, and hence a delivery of the possession of the precedent estate was necessary, when a freehold vested remainder was limited upon it in order to sustain the latter estate, and then the delivery of possession to the particular tenant inured to the benefit of the remainderman, as the particular estate and remainder consti- tuted the entire estate. Kent's Com. vol. 4, *234:. As a result, if the precedent estate were void at its creation, or became so or was defeated thereafter, before its natural expiration, the freehold dependent upon it failed also. Kent's Com. *235-Q, This, also, was the same with contingent remainders, but between vested and contingent remainders there was this difference, that while a vested remainder of freehold might be limited on a precedent estate, 'less than a freehold, as on an estate for years, not created to begin in the *"A remainder is a remnant of an estate in land, depending upon a particular prior estate created at the same time, and by the same instrument, and limited to arise immediately on the determination of that estate, and not an abridgment of it." Kent's Com. vol. 4, *198. It is "an estate limited to talie effect and be enjoyed after another is determined." Greenl. Cruise on Real Prop. vol. 1, p. 325. f " The reason of this rule was that, under the feudal law, the freehold should not be in abeyance since there must always be a visible tenant of the freehold, who might be made a tenant to the praecipe and answer for the services required." Kent's Com. vol. 4, *236-7. 234 S. ESTATES IN EXPECTANCY. 1. REMAINDERS. future (Kent's Com. vol. 4, *235-6), yet, in the case of contingent re- mainders, the precedent estate must be a vested freehold estate. " Thus, in the case of a devise to B. for fifty years, if he should so long live, remainder to the heirs of his body, the remainder (being contingent) was held void for the want of a freehold to support it. But if the re- mainder had been to trustees during the life of B., remainder to the heirs of his body, in that case the contingent remainder had been good, because preceded by a vested freehold i-emainder to trustees." Kent's Com. vol. 4, *236-7. Hence, at common law, to insure the creation and continuance of a ■valid remainder, the following were essentials noticeable in this con- nection : (1) A valid precedent estate created at the same time as the remain- der. (2) If the remainder were a freehold, the precedent estate must be vested (Kent's Com., 234) ; if the remainder were limited on a contin- gency and amounted to a freehold, the precedent estate must be a vested freehold. Kent's Com. 237, post, p. 241. (3) The expiration of such precedent estate naturally and not by abridgment, defeasance or destruction, post, pp. 247-251. (4) The remainder must take effect at the expiration of the prece- dent estate, post, pp. 246, 247-251. (5) If the precedent estate for any cause failed before its natural ter- mination, the remainder failed ; hence the event on the happening of which a contingent remainder should vest could not be such a contin- gency as should abridge or defeat the precedent estates, post, p. 244. (6) A remainder could not be created to take effect upon the failure of an estate in fee created with it See post, p. 241-2. For further consideration of Remainders, see p. 238, et seq. 8. FUTURE ESTATES OTHER THAN REMAINDERS. Later the statutes embodying the present law governing future estates and materially changing the common law rules above given will be given pp. Meanwhile, the characteristics of other future estates may be stated. Executory devise. An executory devise is a contingent future estate created hy will. "The reason of the institution of executory devises was to support the will of the testator; for when it was evident that he intended a contin- gent remainder, and when it could not operate as such by the rules of law. II. FUTURE ESTATES. 235 8. FUTURE ESTATES OTHER THAN REMAINDERS. the limitation was then, out of indulgence to wills, held to be good as an executory devise." Kent's Com. vol. 4, *26i. "An executory devise differs from a remainder in three very material points, (1) 'it needs not any particular estate to precede and support it, as in the case of a devise in fee to A. upon his marriage. Here is a free- hold limited to commence infuturo^ which may be done by devise, be- cause the freehold passes without livery of seizin; and until the contin- gency happens, the fee passes, in the usual course of descent, to the heirs at law. (2) "A fee may be limited after a fee, as in the case of a devise of land to B. in fee, and if he die without issue, or before the age of twenty- one, then to 0. in fee ; (3) ^a term of years may be limited over, after a life estate created in the same. At law, the grant of the term to a man for life, would have been a total disposition of the whole term." Kent's Com. vol. 4, *270. Note 1. A devise to B. and his family if he should have a family. Flowmery v. Johnson, 7 B. Mon., Ky. 693; Mitchell v. Long, 80 Pa. St. 516. Devise to testator's nephews that may first come to America within an allowable time, otherwise to heirs. Chambers v. Wilson, 2 Watts, Pa. 495. Note 3. Vedder v. Evertson, 3 Paige, 281; Matter of Sanders, 4 id. 292; Norria v. Beyea, 13 N. Y. 273. These cases are very numerous, see pp. 274-280. ' 'When the whole fee is first limited, as in a devise to a man and his heirs, arid there is a devise over upon a contingency, this is an executory devise; but if the first devise was of an estate for life or years, a subsequent limitation to take effect imme- diately upon the determination of such first estate would be a remainder. Norris v. Beyea, 13 N. T. 273. Note 3. A., owning an estate for fifty years in land, devises it to B. for life, and after B.'s death the remaiudev to 0. At common law, a valid conveyance of this na- ture could not be made as the estate for life was deemed to merge in it the entire term for years; but the rule was otherwise when precisely the same thing was done by will. See p. 242. Shifting or secondary, springing, future or contingent and resulting uses. "A use is where the legal estate of lands is in A., in trust, that B, shall take the profits, and that A. will make and execute estates accord- ing to the direction of B." Kent's Com. vol. 4, *290. (See history and explanation of Uses and Trusts post, p. 561.) The Revised Statutes, section 72, converted every estate formerly held as a use into a legal estate, and every person entitled to the actual pos- session of lands and the receipt of the rents and profits thereof, in law or in equity, is given a legal estate therein, equal in quality and dura- tion lo his beneficial interest. Hence, what was formerly a use became a legal estate in land.* *The language of Chancellor Kent respecting the effect of 27 Henry VIII is appli- cable to the revision of the New York Statutes. 236 X ESTATES IN EXPECTANCY. 2. i'UTURE ESTATES OTHER THAN REMAINDERS. A use always arose bj grant or agreement, and never by will. This man- ner of creation established the principal distinction between the doctrine of uses and executory devises, which they closely resembled, although in one respect analogous to contingent remainders. "Uses and contingent devises become parallel doctrines, and what, in the one case, was a fu- ture use, was, in the other, an executory devise." Kent's Com. vol. 4, *295. But uses differ from executory devises in this respect; tliat there must be a person seized to the uses when the contingency happens or they can not be executed by the statute (statute of uses). If the estate of the feoffee to such uses be destroyed by alienation or otherwise, before the contingency arises, the use is destroyed forever; whereas, by an ex- ecutory devise, the freehold is transferred to the future devisee. Con- tingent uses are so far similar to contingent remainders, that they re- quire a preceding estate to support them, and take effect, if at all, when the preceding estate determines." Kent's Com. vol. 4, *295-296. ^'■Shifting or secondary uses take effect in derogation of some other es- tate, and are either limited by the deed creating them, or authorized to be created by some person named in it. Thus, if an estate be limited to A. and his heirs, with a proviso, that if B. pay to A. $100, by a given time, the use of A. shall cease, and tlie estate go to B. in fee, the estate is vested in A subject to a shifting or secondary use in fee in B. So, if the proviso be that 0. may revoke the use to A. and limit it to B., then A. is seized in fee, with a power in 0. of revocation and limitation of a new use." Kent's Com. vol. 4, *296-7. "Springing uses are limited to arise on a future event, where no pre- ceding estate is limited, and they do not take effect in derogation of any preceding interest. If a grant be to A. in fee, to the use of B. in fee, after the first day of January next, this is an instance of a springing use and no use arises until the limited period. The use, in the meantime, re- sults to the grantor, who has a determinable fee * * By means of powers, a use, with its accompanying estate, may spring up at the will of any given person. Land may be conveyed to A. and his heirs, to such uses as B. shall by deed or will appoint, and in default of and un- til such appointment to the use of 0. and his heirs. Here a vested es- " The gwaKte'es which had attended uses in equity were not separated from them when they changed their nature and became an estate in the land itself. If they were contingent in their fiduciary state, they became contingent in the land itself. They were still liable to be overreached by the exercise of powers and to be shifted and to cease, by clauses in cesser in deeds of settlement. The statute transferred the use with its accompanying conditions and limitations into the land." Kent's Com. vol. 4, *294-5. II. FUTURE ESTATES. 23 T 3. FUTURE ESTATES OTHER THAN REMAINDERS. tate is in C. subject to be divested or destroyed at any time by B. exer- cising his power of appointment, and B., tliough not the owner of the property, has such power, but it extends only to the useot tlie land, and the fee simple is vested in the appointee, under the operation of the stat- ute of uses, which instantly annexes the legal estate to the use. * * A good springing use must be limited at once, independently of any preceding estate, and not by way of remainder, for it then becomes a contingent and not a springing use." Kent's Com. vol. 4, *298. "Future or contingent uses are limited to take e£fect as remainders. If lands be granted to A. in fee, to the use of B. on his return from Eome, it is a future contingent use, because it is uncertain whether B. will ever return." Kent's Com. vol. 4, *298. Conditional limitations. Where an estate is granted on a condition subsequent, if there be a breach of snch condition, the grantor or his heirs, and they only, may reenter for the non-performance of the condition. " If the condition subsequent be followed by a limitation over to a third person, in case the condition be not fulfilled, or there be a breach of it, that is termed a conditional limitation." Kent's Com. vol. 4, *126. "At common law, a remainder could not take eSect on an event which should defeat before its natural termination the precedent estate. Thus, if an attempt were made to grant an estate to B. for life, and if C. should return from Eome, then thatB.'s estate should cease and a re- mainder vest at once in D., both the life estate and remainder would be void. This arose from the doctrine that a remainder could not take effect on an event which goes to defeat, or abridge or work the destruc- tion of the precedent estate. Moreover, as- the discontinuance of B.'s estate depended upon a condition, viz., the return of C. from Rome, no one but the grantor or his heirs could take advantage of the breach and make entry therefor, and hence the remainderman could not. This rule applied only to common law conveyance. Kent's Com. vol. 4, *249. But if this same provision were made in convey- ances to uses or in wills, it would he good as a, conditional limila lion, or future or shifting use, or executory devise. Kent's Com. vol. 4, *250, 251. And upon C.'s return from Rome B.'s estate would ijyso facto cease and the remainderman (so called) could enter. Hence, a conditional limitation was a contingent estate that should arise upon the premature destruction, by some act or event, of a prece- dent estate created at the same time, and was created either by will or by conveyance to uses. Kent's Com. vol. 4, *128. 238 X ESTATES IN EXPECTANCY. a. FUTURE ESTATES OTHER THAN REMAINDERS. But the Revised Statutes, Eeal Prop. L. (sec. 43, post, p. 244), now ex- pressly provide that "a remainder may be limited on a contingency, which, if it happen, will operate to abridge or determine the precedent estate; and every such remainder shall be a conditional limitation." See post, pp. 244-5. See Conditions, p. 1963. Distinction between remainders and other future estates no longer exists. " The New York statute has, in effect, destroyed all distinction be- tween contingent remainders and executory devises. They are equally future or expectant estates, subject to the same provisions, and may be equally created by grant or will. The statute allows a freehold estate, as well as a chattel real, to be created, to commence at a future day ;• and an estate for life to be created in a term for years,^ and a remainder limited thereon ;' and a remainder of a freehold or chattel real, either contingent or vested, to be created expectant on the determination of a term of years;' and a fee to be limited on a fee, upon a contingency." There does not appear, therefore, to be any real distinction left subsist- ing between contingent remainders and executory devises." They are so perfectly assimilated, that the latter may be considered as reduced substantially to the same class; and they both come under the general denomination of expectant estates. Every species of future limitations is brought within the same definition and control. Uses being also abolished by the same Code (see sec. 71, post, p. 571), all expectant estates, in the shape of springing, shifting or secondary uses, created by conveyances to uses, are, in effect, become contingent remainders, and Subject precisely to the same rules." Kent's Com. vol. 4, *294-6. The original note of the revisers respecting these sections is as follows: (Sec. 10, present sec. 27.) " In conformity to the plan of the revisers, and with a view to subsequent provisions, the definition in this section is so framed as to comprehend every species of expectant estates created by the act of the party, remainders, strictly so called, future uses, and executory devises. The words 'by lapse of time or otherwise," are necessary to provide for contingent limitations, operating to defeat or abridge the prior estate, and the other variations from the ordinary defi- nition of a remainder, are introduced to embrace estates in futuro, as they are technically termed. 'Real Prop. L., sec. 40, post, p. 241. 'Real Prop. L., sec. 34, 40, post, pp. 341, 365. 3 Real Prop. L,, sees. 32, 40, post, pp. 241, 383. * But see as to Remote Vesting, p. 389. Tieal Prop. L., sec. 37, ante, p. 233. II. FUTURE ESTATES. 239 •S. FUTURE ESTATES OTHER THAN REMAINDERS. "At common law, owing to the necessity of an immediate livery of seizin, a freehold estate could not be created to commence in possession at a future day, unless as a remainder. 2 Black Com. 166. "In modern times, however, the rule is in effect abolished, since an €State infuturo may be created by devise or by any conveyance operat- ing under the statute of uses.' The reasons upon which the original rule was founded, being no longer applicable, it is proposed to abolish it altogether. As future estates can not, under the following sections of this article," create a suspension of ownership, for a longer period than remainders, no rules of public policy are violated by their permission. In fact they are in effect, though not by verbal definition, remainders, commencing in possession on the determination of the intermediate estate not granted or devised." Revised Statutes, vol. 3, 2d ed., 571. Statutes relating to future estates. The statutes effecting the changes above discussed, as well as other statutes relating to future estates, will now be given. 3. CONTINGENT REMAINDER ON TERM OF YEARS. Eeal Prop. L., sec. 36. Contingent remainder on term of years. "A contingent remainder shall not be created on a term of years, unless the nature of the contingency on which it is limited be such that the re- mainder must vest in interest, during the continuance of not more than two lives in being at the creation of such remainder, or on the termina- tion thereof." 1 R. S. 724, sec. 30, Banks's 9th ed., 1791, repealed by Real Prop. L., same. Butler V. Butler, 3 Barb. Ch. 304. Hawley v. James, 5 Paige, 463. See p. 389. Explanatory note to sec. 36. — The common law proiiibited the creation by conveyances of a contingent remainder amounting to free- hold on a term of years, as a term for years not being a freehold estate, could not support a contingent remainder. ° But section 40, subject to preceding restrictions, permits a freehold estate to be created to commence at a future day, and a contingent remainder to be limited on a terin of years. One of the restrictions intended in section 40 is that contained in section 36 (former section 20), viz., that the remainder shall vest, if at all, within or at the termination of two lives in being at the creation of the estate. But as there is no restriction upon a vested estate limited on a term of years, an estate to A. for 500 years, remainder to B., is good. ■Real Prop. L., sec. 40, post, p. 241. "Real Prop. L., sec. 33, post, p. 382. aSeeawie, p. 333. 240 X ESTATES IN EXPECTANCY. 3. CONTINGENT REMAINDER ON TERM OF YEARS. Sucli an estate is not objectionable within the statutes against suspensioo of the power of alienation, as the owners of the term and remainder may unite and convey. See p. 388. i. ESTATE FOR LIFE AS REMAINDER ON TERM OF YEARS. Real Prop. L., sec. 37. Estate for life as remainder on term of years. " No estate for life shall be limited as a remainder on a term of years, except to a person in being at the creation of such estate." 1 B. 8. 724, sec. 31, Banks's 9tli ed., 1791, repealed by Eeal Prop. L., the same. Explanatory note to sec. 37. — Thus, a term to A. for ten years years, remainder for life to first unborn son of B., is bad ; but if the remainder were to B., a person in being, it would be good. As said under section 86, at common law, a term of years would not support a remainder, amounting to a freehold, if contingent. Section 40 permits this, subject to preceding restrictions, but section 87 declares that such per- mission does not extend to an estate for life limited to a person not in being, as a remainder on a term of years. Moreover, section 37 is an exception to section 36. Under the latter section a remainder in fee dependent on a contingency that must happen within two lives could ibe limited on a terra of years, but under section 37 such a remainder, if an estate for life, can not be created in favor of a person not in being. 5. MEANING OF HEIRS AND ISSUE IN CERTAIN REMAINDERS. Real Prop. L., sec. 38. Meaning of heirs and issue in certain remain- ders. " 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. 1 B. S. 724, sec. 23, Banks's 9th ed., 1791, repealed by Eeal Prop. L., the same. For cases relating to this section, see pp. 846, 378, 403. Explanatory note to sec. 38. — 'In the case of a remainder limited to take effect on the death of any person without heirs, etc., this section declares that a definite, rather than an indefinite failure of issue is intended, by limiting the provision to the time of the testator's death. Thus, devise to A. in fee, and if he should die without issue (or using any of the terms expressed in the section), then to B. But if the intention of the testator unquestionably refers to some other time than the death of the testator, his intention and not the statute governs. See Kent's Com. vol. 4, *28l; Champlins' Susp., p. 380 et seq. ' See note on this subject under section 33, post, p. 403. II. FUTURE ESTATES. 241 6. CREATION OP FUTURE AND CONTINGENT ESTATES. Eeal Prop. L., sec. iO. Creation of future and contingent estates. " Subject to the provisions of this article, a freehold estate as well as a chattel real may be created to commence at a future day ; an estate for life may be created in a term of years, and a remainder limited thereon ; a remainder of freehold or chattel real, either contingent or vested, may be created expectant on the determination of a term of years ; and a fee or other less estate may be limited on a fee, on a con- tingency which, if it should occur, must happen witMn the period pre- scribed in this article." 1 E. S. 734, sec. 24-, Baaks's 9th ed., 1791, repealed by Real Prop. L. " Subject to the rules established in the preceding sections of this article, a free- hold estate as well as a chattel real, may be created, to commence at a future day; an estate for life may be created, in a term of years, and a remainder limited thereon ; a remainder of a freehold or chattel real, either contingent or vested, may be created expectant on the determination of a term of years ; and a fee may be limited on a fee, upon a contingency, which, if it should occur, must happen within the period pre- scribed in this article." For cases relating to this section, see pp. 309-346. Explanatory note to sec. 40. — This section is intended to har- monize the manner of creating estates, whether created by grant or will. " It allows, ''subject to the provisions of this article," (1) A freehold estate' or a term of years to be created to commence at a future day (see restrictions on this, sees. 36 and 37 and notes) ; (2) "An estate for life to be created in a term of years, and a remain- der to be limited thereon (see restrictions, sec. 34 and notes) ; (3) A vested or contingent' remainder of a freehold or chattel real to begin after a term of years (see restrictioiis, sees. 36 and 37 and notes) ; (4) A fee or other less estate (words " other less estate " added by recent revision) to be limited on a fee,' on a contingency which, if at all, must occur within the period prescribed by the rule against perpetui- ties. By section 32 a contingent remainder in fee may be limited on a prior remainder in fee upon a contingency that must happen during two lives and the minority of the first taker. This rule does not apply to, a fee limited on a fee, where the period of two lives in being is the limit within which the contingency must happen that shall vest the second fee. This statute is intended to apply to remainders the same rule that was at common law applicable to executory devises and secondary uses. Thus the original revisers explain the reasons for the change. 'This was not allowed in conveyances at common law, ante, pp. 238, 339. ^Tliis was not allowed in conveyances at common law, p. 243. 'This was not allowed in conveyances at common law, p. 343. 81 242 X. ESTATES IN EXPECTANCY. 6. CREATION OF FUTURE AND CONTINGENT ESTATES. '■ This section (present section -40) is indispensably necessary to pro- duce that uniformity in the law which it is the object of the revisers to attain. By the strict rules of the common law, and for reasons purely technical, no remainder can be limited on a life estate, in a term of years. Thus, if a man possessed of a term, say of 100 years, grant it to A. for life, and if he shall die during the term, then the residue of the term to B., A. has an absolute interest, and the remainder to B. is utterly void. The maxims of the common law also prohibit the crea- tion of a contingent remainder of freehold, on a term of years, and the limitation of a fee upon a fee, on a contingency defeating the prior es- tate. Thus, if an estate be granted to A. and his heirs, but if he die without issue living at his death, then to B. as a remainder, the limita- tion is void, as i-epugnant to the fee already given. No such repug- nancy, however, is supposed to exist, if the same limitation is contained in a will, in precisely the same w'ords ; for, although, as a remainder, it is void, as an executory devise, it is unexceptionable and .valid. " None, indeed, of the restrictions that we have mentioned, except the second, which extends also to limitations of uses, are applicable to sec- ondary uses and executory devises ; so that in these cases it is literally true that the validity, as we have before remarked, of a limitation, de- pends exclusively on the formal character of the instrument in which it is contained. 2 Blackstone's Com. Christian's edition, 170, 173, 174; Fearne on Eemainder, 423." 3 E. S. 573, 2d ed. 7. FUTURE ESTATES IN THE ALTERNATIVE. Real Prop. L., sec. 41. Future estates in the alternative. " Two or more future estates may be created to take effect in the alternative, so that if the first in order fails to vest, the next in succession shall be substituted for it, and take effect accordingly." 1 R. S. 724, sec. 25, Banks's 9th ed., 1792, repealed by Real Prop. L., substantially the same. For cases relating to this section, see pp. 336, 377. Explanatory note to sec. 41. — " This section embraces what are technically termed contingencies with a double aspect, bat which more simply and with equal propriety may be termed alternate estates. As where an estate is given to A. for life, and if he have any issue living at his death, then to such issue in fee ; but if he die without such issue, then to B. in fee. Here the remainders to the i.ssue and to B. are both contingent, but only one can take effect. It is obvious that these alter- native dispositions, however numerous they may be, are free from ob- jection, since, as only one can vest, and by vesting, defeats all that are II. FUTURE ESTATES. 243 7. FUTURE ESTATES IN THE ALTERNATIVE. subsequent, the estate is not rendered inalienable for a longer period than if a single limitation only had been originally created. 1 L, Eay- mond, 203; 2 Black. Rep. 777." Reviser's notes, 3 R. S. 573, 2d ed. " If the prior fee be contingent, a remainder may be created, to vest in the event of the first estate never taking effect, though it would not be good as a remainder, if it was to succeed, instead of being collateral to the contingent fee. Thus, a limitation to A. for life, remainder to his issue in fee, and in default of such issue remainder to B., the re- mainder to B. is good, as being collateral to the contingent fee in the issue. It is not a fee mounted upon a fee, but it is a contingent re- mainder with a double aspect, or, as Mr. Douglas says, with less quaintness, on a double contingency. But if the remainder over to B. had been merely in the event of such dying before twenty-one, it would have been good only as a shifting use or executory devise, for it would have vested on an event which rescinds a prior vested fee. There is likewise a double contingency when estates are limited over in the alternative, or in succession. If the previous estate takes effect, the subsequent limitation awaits its determination, and then vests. But if the first estate never vests by the happening of the contingency, then the subsequent limitation vests at the time when the first ought to have vested. Kent's Com. vol. 4, *200, 201. 8. FUTURE ESTATES VALID, THOUGH CONTINGENCY IMPROBABLE. Real Prop. L., sec. 42. Future estates valid, though contingency improbable. " A future estate, otherwise vahd, shall not be void on the ground of the improbability of the contingency on which it is lim- ited to take effect." 1 R. S. 724, sec. 26, Banks's 9tli ed., 1792, repealed by Real Prop. L., substan- tially the same. Explanatory note to sec. 42. — "It is a maxim (of the common law) that a contingency upon which a remainder is limited, must be a common possibility, or in other words, a contingency that may reason- ably be expected to happen ; for if it involve a possibility upon a possi- bility, or in the language of Mr. Fearne, 'require the concurrence of two several contingencies, not independent and collateral, but the one requiring the previous existence of the other, and yet not necessarily arising out of it,' it is considered too remote and is utterly void. This purely metaphysical distinction, worthy only of the schoolmen with ■whom it originated, the Revisers propose to abolish. It has no con- ceivable use but to produce litigation on the utterly unimportant qucs- 244 X. ESTATES IN EXPECTANCY. 8. FUTURE ESTATES VALID, THOUGH CONTINGENCY IMPROBABLE. tion, whether a particular contingency is to be considered near or re- mote, a single or double possibility, a question which a man of com- mon sense would almost be ashamed to argue, yet on the determination of which the fortunes of his clients may depend. If a remainder does not restrain the alienation of the estate beyond the period allowed by law, but if it take effect at all, must happen within the limits prescribed, of what consequence is it, or can it be, whether the contingency on which it is limited, be near or remote ? probable or improbable ? Fearne on Eem. 378 ; 2 Coke's Rep. 51b; Cruise's Dig. tit. 16, ch. 2, sees. 4 to 8." Eeviser's notes, 3 R S. 574, 2d ed. 9. CONDITIONAL LIMITATIONS. Real Prop. L., sec. 48. Conditional limitations. "A remainder may be limited on a contingency, which, if it happens, will operate to abridge or determine the precedent estate ; and every such remainder shall be a conditional limitation." 1 R. S. 735, sec. 37, Baaks's 9th ed., 1793, repealed by Real Prop. L. "A remain- der may be limited on a contingency, which in case it should happen, will operate to abridge or determine the precedent estate; and every such remainder shall be con- strued a conditional limitation, and shall have the same effect as such limitation would have by law." See p. 237. The cases relating to Conditional Limitations will be found collected under Con- ditions, p. 1063 et seq. Explanatory note to sec. 43. — This was always the rule applied to conveyances to uses, or to devises, but it is intended to abolish the severe and strict rule applicable to common law conveyances. Kent's Com. vol. 4, *250, *252. "A remainder, properly so called, can not be limited (before the statutes) on a contingency, which, should it happen, will defeat the prior estate, before the period of its natural termination ; in fewer words, it can not be limited on a condition subsequent. This rule, it seems, is a consequence of the common law maxim, that none but the grantor or his heirs can take advantage of the breach of a condition, so that it is only by their entry that the conditional estate can be defeated. That entry, if made, defeats the livery made on the creation of the original estate, and therefore of course defeats all subsequent estates dependent on the same livery — the remainder and the precedent estate fall to- gether. Thus if an estate be granted by deed to A. who is then a widow, for life, upon condition that if she afterwards marry it shall belong to B., the limitation to B. is nugatory, for although A. marries, her estate still continues, unless the heir of the grantor chose to avoid it by his II. FUTURE ESTATES. 245 9. CONDITIONAL LIMITATIONS. re-entry, and then the remainder to B. is also annulled. But if the estate was not expressed to be for life, if the grant had been to her during her widowhood, and in case of her marriage to B., this would have been a valid remainder, and the marriage of the widow would have en- titled B., to the immediate possession of the lands ; for in such a case it seems the estate to the widow is not an estate upon condition, but a limitation, or a condition not in deed, but in law. Thus it is that the rights of the remainderman are made to depend on a distinction as purely verbal as it is possible to conceive, for whichever form of ex- pression is used, the estate of the widow is obviously meant to be pre- cisely the same. It is meant in both cases, that she shall enjoy the lands so long as she remains a widow, and no longer; and that when she marries they shall belong to B. " This rule, hoVever, that a remainder limited on a condition subse- quent, is void, is not applicable to devises ; for in a devise, although strict words of condition are used, yet if there is a remainder over, thev are always construed as creating not a condition, but a conditional limi- tation, so that when the condition is broken or performed, as the case may be, the remainder commences in possession, and the person entitled under it has an immediate right to the estate. The reason of this dis- tinction we are told is, that a different construction would defeat the intent of the testator, and prevent the remainder from taking effect, since if it were a condition it would descend to the heir at law, whose entry would destroy the whole estate. This reasoning, it must be ad- mitted, is sound and conclusive, and because it is so, we are desirous to apply it to deeds as well as wills. "It deserves to be remarked, that one of the few inaccuracies to be found in Blackstone, occurs on the subject of this note. He states it as a general rule, that where a remainder is limited on a conditional estate, the condition, for the sake of preserving the remainder, is always con- strued as a limitation ; but the only cases he cites in support of this position arose upon wills. In respect to conveyances at common law, the contrary doctrine is clearly established. Fearne on Eem. 3, 863, 391 to 393, 409, 410, and cases there cited. 2 Black. Com. 155, 156." Eeviser's notes, 3 R S. p. 574. 10. WHEN HEIRS OF LIFE TENANT TAKE AS PURCHASERS. Real. Prop. L., sec. 44. When heirs of life tenant take as purchasers : "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 is given, the persons who, on the termination of the life estate, are the heirs, or heirs 246 X ESTATES IN EXPECTANCY. 10. WHEN HEIRS OF LIFE TENANT TAKE AS PURCHASERS. of the body, of such tenant for life, shall take as purchasers, by virtue of the remainder so limited to them." 1 R. S. 725, sec. 38, Banks's 9tli ed., 1793, repealed by Real Prop. L., substantially the same. For discussion of tlus section and cases relating thereto, see pp. 87-93. 11. WHEN REMAINDER NOT LIMITED ON CONTINGENCY DEFEATING PRECE- DENT ESTATE, TAKES EFFECT. Eeal Prop. L., sec. 45. When remainder not limited on contingency defeating precedent estate, takes effect. " When a remainder on an estate for life or for years is not limited on a contingency defeating or avoiding such precedent estate, it shall be construed as intended to take effect, only on the death of the first taker, or the expiration by lapse of time of such term of years." 1 R. S. 735, sec. 39, Banlts's 9tli ed., 1793, repealed by Real Prop. L., substantially the same. Acceleration of Remainders, see pp. 318, 343, 346, 390. Explanatory note to sec 45. — This intends that the enjoy- ment of a remainder limited on a term of years or estate for life shall not be accelerated by any destruction of the precedent estate, unless such was the intention. The remainder being limited on an estate for the life of B. shall vest in enjoyment when B. dies, whatever happens to his estate ; if the remainder be limited on a term of years it shall take effect after the expiration of the years. It may be that the precedent estate will be defeated by the ternis of the instrument creat- ing it, or by operation of law, as by merger. But if it is apparent that the intention is that the remainder shall vest in enjoyment upon the failure of the precedent estate, this of course will result. 12. POSTHUMOUS CHILDREN. Real Prop. L., sec. 46. Posthumous children. " Where a future estate is limited to heirs, or issue, or children, posthumous children shall be entitled to take in the same manner as if living at the death of their parents; and a future estate dependent on the contingency of the death of any person without heirs, or issue, or children, shall be de- feated by the birth of a posthumous child of such person, capable of taking by descent." 1 R. S. 735, sees. 30, 31, Banks's 9th ed., 1793, repealed by Real Prop. L., sub- stantially the same. For cases relating to this section, see pp. 283, 335, 336, 1090, 1438. Explanatory note to sec 46.—" The case of posthumous chil- dren is provided for in the statute of descents ; but the statute of 10 and 11 William 3, ch. 16 (Evans's (Roper on Legacies 561, 8th ed; Pearson v. Lane, 17 Vesey, 101; Collin v. Col- lin, 1 Barb. Ch. 630; Clason v. Clason, 6 Paige, 541 ; s. c , 18 Wend. 369; Hayden v. Rose, L. R., 10 Eq. Cases, 234.) See Stevenson v. Lesley, 70 N. Y. 512. II. FUTURE ESTATES. 265 17. VESTED ESTATES-CASES. 4. WHEN BSTATE TESTS WITH THE TIME OF PAYMENT OB POSSESSION POST- PONED. Construction : Legacy vested in B. upon testator's death, and passed to his repre- sentatives. This was not affected by the fact that the principal might not yield interest at the rate named, as all the interest that was derived therefrom was to be paid, and both the legacy and interest thereon were connected as gifts to the legatee. Warner v. JDurant, 76 N. Y. 133, aff'g 15 Hun, 450. Note. — A legacy may vest in a legatee in his lifetime, though he die before the- time fixed for payment. See matter of Seaman, 147 N. Y. 69, 74. " By the ninth clause of his will the testator gave to each and every grandchild born within twenty years after his death and before the final settlement of his estate the sum of one thousand dollars, to be paid to each on reaching full age, or if granddaughters upon their earlier marriage. The bequest was accompanied by a request that his children consent to and acquiesce in the provision. The general term held these legacies to be present gifts of separate and distinct portions of the testa- tor's property, and that all must necessarily take effect completely within the period of one life in being at the death of the testator. We concur in the conclusion. The legacy vested in each grand- child immediately upon its birth, payment only being postponed until majority or marriage. The child of a daughter must necessarily take during the life of its mother, and that of a son, if born after his decease, is still regarded as living at the death of its father for the pur- pose of the vesting of the legacy." Smith v. Edwards, 88 N. Y. 92,, 109, 110. Grift in prceseyiti with time of payment postponed. Bliven v. Seymour^ 88 K Y. 469, 478, digested p. 543. 0., by will gave to two grandchildren "the sum of $1,000 each, to be paid to them respectively as they arrive at the age of twenty-five years." To five children he gave $1,000 each payable one legacy each year for five years after his decease. After certain devises and bequests, he gave his residuary estate to the defendant, his son, subject to the pay- ment of his debts and legacies. One of the grandchildren died before reaching the age of twenty-five. Her administrator, after the time, when, if living, she would have been twenty-five, brought the suit for legacy. 34 266 X. ESTATES IN EXPECTANCT. 17. VESTED ESTATES-CASES. 4. WHEN ESTATE VESTS WITH THE TIME OF PAYMENT OR POSSESSION POST- PONED. Construction: The legacy was vested at the grandchild's death ; the time of pay- ment simply was postponed. Bushnell v. Carpenter, 92 K Y. 270, afE'g 28 Han, 19. Citing, Manice v. Manice, 43 N. Y. 303 ; Livingston v. Greene, 53 id. 118 ; Smith V. Edwards, 88 id. 92; Loder v. Hatfield, 71 id. 98; Patterson v. Ellis, 11 Wend. 360; Everitt v. Everitt, 39 N. Y. 39; Warner v. Durant, 76 id. 133. The will of B. devised two lots of land to her executor, with power to sell in his discretion, in ttust, to collect the income or the proceeds in case of sale, and to pay therefrom to her mother annually a sum speci- fied during life, and sums necessary for the support and education of her son T. during his minority, the balance to be divided equally among her three other children. Upon the death of the mother of the testatrix and upon the arrival of J. of age, the will gave one of the lots, or the avails in case of sale, to J., "his heirs, executors, administrators, or assigns." The residue of her property she gave to her three other children, "the survivor or survivors of them." Shortly after J. became of age, the mother of the testatrix died. At that time but one of the three children named in the residuary clause was living. Construction : The words of survivorship referred to the death of the testatrix, and the limitation of the residuary estate took eSect as a valid remainder at that time, and therefore, the representatives of the two deceased children were entitled to their respective shares of the residuary estate. Matter of Accounts of Mahan, 98 N. Y. 372, a2'g 32 Hun, 73. Prom opinion.— "We think the provisions of the will bring the case within the principle, well settled in this state, that if there be a direct gift to legatees, a direction for payment at the happening of a certain event shall not prevent its vesting, and, therefore, the personal representative of a legatee dying before the event happened shall he entitled to receive it at the time ihe legacy was directed to be paid to him had he lived. Moore v. Lyons, 35 Wend. 144; Everitt v. Everitt, 29 N. Y. 39; Stev- enson V. Lesley, 70 id. 513; Warner v. Durant, 76 id. 133; Robert v. Corning, 89 id. 335." See Van Brunt v. Van Brunt, 111 N. Y. 178, 187. Gift with time of payment postponed. Goebel v. Wolf, 113 N. Y. 405, digested p. 272. G-ift with time of payment postponed. Miller v. Gilbert, 144 N. Y. -68, digested p. 804. Time of payment postponed — when bequest was given not payable IL FUTURE ESTATES. 267 17. VESTED ESTATES-CASES. 4. WHEN ESTATE VESTS WITH THE TIMB OP PAYMENT OR POSSESSION POST- PONED. Tintil beneficiary was thirty years old, it vested on death of testator ", on death of beneficiary under that age it passed under her will. Matter of Murphy, 144 N. Y. 557. Wliere the gift of a legacy is absolute, and the time of payment only postponed, as where the sum of $1,000 is given to A. to be paid when he shall attain the age of twenty-one, the time not being of the substance of the gift, postpones the payment, but not the vesting of the legacy; and if the legatee die before tlie time specified, his representatives are entitled to tlie money. But where the legacy is given wlien the legatee shall attain, or provided he does attain the age of twenty-one, time is of the substance of the gift, and tlie legacy does not vest until the contingency happens. But even where the legacy is given when the legatee attains the age of twenty-one, if the devisor directs the interest of the legacy to be applied in the meantime for the benefit of the legatee) there being an absolute gift of the interest, the principal will- be deemed to have vested. So the legacy vf ill be deemed vested, if it be left to the discretion of a trustee to pay the legacy sooner than the time specified in the will, and it seems that the mere ap. pointment of a trustee for the legatee during the minority will have the same effect Patterson v. Ellis, 11 Wend. 360. See Van Brunt v. Van Brunt, 111 N. Y. 178, digested p. 453. Where the testator gave to each of his grandchildren who should be living at the time of his death the sum of $6,000 to be paid upon their attaining the age of twenty- one or marrying, such payment however to be subject to the approbation of the parents of the grandchildren and the time of payment to be fixed by them, the leg- acies were vested and not contingent, and the power given to the parents did not pre- vent the vesting of the legacies. Hone's Exeoutors v. Van Sahaiok, 30 Wend. 563. See Moore v. Lyons, 35 Wend. 144, digested p. 396. Tt is a general rule, that legacies chargeable upon the real estate and payable at a future day, are not vested, and lapse by the death of the legatees before the time of payment arrives. But this rule has never been extended to a case where the estate was given to a stranger, upon condition that he pay the legacy charged thereon, and the rule has been much limited, even as between the legatees and heirs at law. Where the time of payment of the legacy is postponed for the benefit of the estate, and not with reference to any particular circumstances in relation to the legatee, the legacy becomes vested at the death of the testator, and is transmissible to the personal representatives of the legatee, although he dies before the time of payment arrives. Birdsall v. Hewlett, 1 Paige, 33. Where a testator devised his residuary estate, to be equally divided among the children of his two brothers and his sister, when they should severally become of age; HeU. that the children of the brothers and sister in esse at the death of the testator, took immediate vested estates in possession, as tenants in common, and that the vest- ing of the estate of each did not depend upon the contingency of his or her arriving at the age of twenty-one. Where it is clear that the testator Intended a person in esse and capable of takmg the legal estate at the time of making the will should have the whole beneficial inter- est in the estate, during his minority as well as afterwards, if there is nothing m the will indicating an intention to give the legal estate to another in trust for him during 268 X. ESTATES IN EXPECTANCY. 17. VESTED ESTATES -CASES. 4. ■WHEN ESTATE VESTS WITH THE TIME OF PAYMENT OB POSSESSION POST- PONKD. such minority, the court will construe it as a devise of the legal estate, to be vested in possession in him immediately, and to be taken care of for him by his legal guard- ian until he is of age. Hoxie v. Hoxie, 7 Paige, 187. Where the testator made his will and died previous to the adoption of the revised statutes, leaving a widow, and a married daughter who was his only child and heir at law ; and by his will directed that his executors should sell all his real and personal estate and put out the proceeds thereof at interest upon landed security, and should pay such interest to his widow for life, for her support, and a part of the principal of the fund also if it should be necessary for that purpose ; and that immediately after her decease all the moneys then remaining should continue at interest, and that the interest thereof should be appropriated to the support of his daughter, in case she be left a widow, and from that time for and during her natural life or until she should again marry ; and that if the interest should not be sufScient for her support, she should then have so much of the principal of the fund annually as the executors should deem sufficient ; and that immediately after the death or remarriage of his daughter, all the moneys then due and remaining should be paid to her children, or the legal heirs of her body, as they should respectively become of age. Held, that by the true construction of the will the executors were to accumulate the interest of the fund, after the death of the widow, during the joint lives of the daughter and her husband for her support in case she should become a widow ; and that in the event of her dying during the lifetime of her husband, which event actually occurred, the executors were to pay such accumulated interest, as well as the principal of the fund, to her children as they respectively became of age. Held, also, that the children of the testator's daughter, who were in esse at the time of her death, took vested Interests in their several shares of the accumulated fund, although the payment of their several shares was postponed until they became of age ; and that there was an implied trust for the executors to accumulate the interest of the several shares for the benefit of the children during their respective minorities. Wood v. Oone, 7 Paige, 471. An interest in the personal estate of the testator, given by his will to a legatee who is in esse, although it is not to vest in possession until after the death of another per- son, vests in interest in the legatee immediately upon the deatli of the testator, and is capable of being released by such legatee at any time. Hoes v. Van Hoesen, 1 Barb. Ch. 379. Where a legacy is given to a person to be paid at a particular age or at the end of a fixed time, he takes a vested interest. Burrill v. STieil, 3 Barb. 457. When distinct legacies are given to individuals, or an aggregate fund is directed to be divided among them in equal shares without the benefit of survivorship, their interests are several ; and if any of them die before the shares are vested, what was intended for them will fall into the residue. There are cases of a legacy lapsing where the party interested dies after tho testa- tor, provided it happen before the legacy is payable. But in order to have this effect, it must clearly appear that the time of payment is made the substance of the gift, and that the testator meant the time of payment to be the period when the legacy should vest ; and if, in such case, the legatee happens to die before the time arrives, although after the testator's decease, the legacy necessarily fails. On the other hand, if the gift is immediate, and the payment only is postponed to a future period (let it be of definite or uncertain duration, and distinct from the gift), the legacy is vested, and the death of the legatee after the testator will not defeat it. II. FUTURE ESTATES. 269 ir. VESTED ESTATES-CASES. 4. WHEN ESTATE VESTS "WITH THE TIME OP PAYMENT OR POSSESSION POST- PONED. If lands are devised or descend to the heir, charged with the payment of a pecuniary legacy to some third person, payable at a future day or upon some subse- quent event, and the legatee happened to die before the time appointed for payment, the law favors the heir and considers the legacy lapsed. The true rule with respect to the vesting of legacies payable out of real estate is this : Where the gift is immediate, but the payment postponed, it is contingent, and will fail if the legatee dies before the time of payment arrives ; but where the pay- ment is postponed, in regard to the convenience of the person and the circumstances of the estate charged with the legacy, and not on account of the age, condition or circumstances of the legatee, it will be vested and mast be paid, although the legatee should die before the time of payment. Marsh v. Wlieeler, 3 Edw. Oh. 155. Will containing many legacies contained provision that none of them "shall be executed or take effect until " a certain hall nearly finished at the time of the will " shall be completed and entirely paid for out of my estate" does not suspend the vesting but the payment of legacies. Jones v. Habersham, 107 U. S. 1 74. " I give to B., in trust for my son C, $1,000, the interest to be used for his benefit until of lawful age, then the principal to be his or his heirs," etc. C. died after testator and before majority. Legacy vested in C. at testator's death. Newberry v. Hinman, 49 Conn. 130. If reason of postponement is position of fund, bequest vests at once ; if it is position of legatee, remainder is contingent. Scofield v. Olcott, 120 111. 363. When entire fund is given in fractional parts at successive periods that must arise, all the interest vests together. Little's Appeal, 117 Pa. 14. Legacy directed to be paid son wlien he could satisfy executor that he was worth $8,000, and if executor thought children unfit to have principal of the legacies, the shares should be Invested and the income paid them for life, vests at testator's death and contingency only relates to time of payment. Schwartz's Appeal, 119 Pa. 3.37. Bequest in trust for daughter and that trustees in that discretion pay over to her when she shall arrive at age or marry, vests. Weatherhead v. Htoddard, 58 Vt. 638. See Warren v. Hemtree, 8 Ore. 118 ; Major v. Major, 33 Gratt., Va., 819 ; Green v. Davidson, 4 Baxter, Tenn., 488 ; Pike v. Stephenson, 99 Mass. 188 ; Green v. Green, 86 N. 0. 546 ; Silvers v. Canary, 114 Ind. 129 : Reed's Appeal, 118 Pa. 215 (principal and interest were directed by will to be non-attachable, yet the interest vested.) 5. SHAKES TO BE ASCERTAINED BV A DIVISION OR CONVERSION, AND LIMITA- TION OVER IN CASE OF THE DEATH OF THOSE WIRST DESIGNATED PRIOR TO THE DIVISION OR CONVERSION. Where shares or interests in real or personal property, to be ascer- tained by a division, are given, and directed to be sold and the pro- ceeds divided, the estate or interest of the devisee or legatee in the property to be divided or converted is a vested interest before the con- version or division, and limitations over to take effect in case of the death of those first designated prior to the division or sale refer to the time ap- pointed for division or sale and not to the period of their completion,* in the absence of language clearly expressing a contrary intention. *Joseph V. Utitz, 34 N. J. Eq. 1 ; Johnes v. Beers, 57 Conn. 395. 270 X. ESTATES IN EXPECTANCY. 17. VESTED ESTATES— CASES. 5. SHAKES TO BE A8CBRTAXNBD BY A DIVISION OR CONVERSION, AND LIMITA- TION OVER IN CASE OF THE DEATH OF THOSE FIRST DESIGNATED PRIOR TO THE DIVISION OF THE CONVERSION. Manice v. Manice, 43 N. Y. 305, 368 ; Murdock v. Ward, 67 id. 387 ; Robert v. Corning, 89 id. 335, 341 ; Finley v. Bent, 95 id. 364 ; Hobson v. Hale, id. 588 ; Williams v. Freeman, 98 id. 577 ; Goebel v. Wolf, 113 id. 405 ; Palmer v. Dunham, 135 id. 68 ; Matter of Gardner, 140 id. 133 ; Dimmick v. Patterson, 143 id. 333 ; Forsyth v. Rathbone, 34 Barb. 388 ; Toirey v. Shaw, 3 Edw. Oh. 376 ; McKinstry v. Sanders, 3 Sup. Ct. (T. & C.) 181, aflE'd 58 N. T, 663. See Matter of Young, 145 N. Y. 538; Hays v. Gourley, 1 Hun, 38; Snell v. Tuttle, 44 id. 835; Van Camp v. Fowler, 59 id. 311; Matter of Bmbree, 9 App. Div. 603; Fargo V. Squiers, 6 id. 485. When shares or legacies are to be paid out of a fund or surplus to be collected or ascertained and divided, the interest of the legatees are held to vest absolutely before the fund is collected, or the surplus ascer- tained, or division actually made ; and a limitation over to take effect in case of the death of the legatee before he has received his share, does- not take effect if the legatee live to become entitled to it though he die before it has been paid (369). 2 Jarman on Wills, ch. 20, sec. 3, page 539, 2d Am. ed. ; Gaskell v. Harman, 6 Ves. 159, and Same Case on Appeal, 11 id. 490 ; Wood v. Penoyre, 18 id. 325 ; In re Arrow- smith's Trusts, 2 DeGr., Fisher & Jones, 474; Hutohin v. Mannington, 1 Ves. 366. Mixed fund of realty and personaltv. Martin v. Martin, L. R, 2 Eq. Cases, 404. When terms of a bequest import a gift and also a direction to pay at a subsequent time, the legacy vests and will not lapse by the death of the legatee before the time for payment has expired, but will pass to his personal representatives. Traver v. Schell, 20 N. Y. 89 ; Everitt v. Everitt, 29 id. 39. This is not in conflict with the rule that " a gift must not only vest within the time limited by the rule against perpetuities, but the interests of the respective parties must be capable of ascertainment within that period." Curtis v Lukin, 5 Beav. 147. It is sufficient if the interests are vested and capable of ascertainment, although not actually ascer- tained and set off. Manice v. Manice, 48 N. Y. 305, 370. See Embury v. Sheldon, 68 N. Y. 337 (336); Bennett v. Garlock, 79 id. 303 (334); Smith V. Edwards, 88 id. 93 (105); Wells v. Wells, id. 333 (331); Beardsley v. Hotcli- kiss. 96 id. 201 (315); Radley v. Kuhn, 97 id. 36 (35); Shipman v. Rollins, 98 id. 311. Legatee died before full division and his next of kin took his interest. Murdoch V. Ward, 67 K Y. 387, rev'g 8 Hun, 9. Estate vested, subject to limitation over in case of death before dis- tribution. BoBert v. Corning, 89 N. Y. 225 (241), digested p. 330. II. FUTURE ESTATES. 271 17. VESTED ESTATES-CASES. 5. SHARES TO BE ASCERTAINED BY A DITISION OR CONVERSION, AND LIMITA- TION OVER IN CASE OF THE DEATH OF THOSE FIRST DESIGNATED PRIOR TO THE DIVISION OR CONVERSION. The words " die before full payment," mean, not before actual pay- ment, but before the share becomes actually payable ; and therefore, the share of A. was not divested, but passed as a part of her personal estate to her legal representatives, not to her child. Finley v. Bent, 95 N. Y. 364, digested p. 934. For estates vesting on final division on death of last life annuitant, see Hobson v. Hale, 95 N. Y. 588, digested p. 442. Citing, (Jolton v. Pox, 67 N. Y. 348; Everitt v. Everitt, 39 id. 39; Warner v. Du- rant, 76 id. 136; Smith v. Edwards, 88 id. 93. F. by will directed his executors to divide his residuary estate "share and share alike" among certain of his children named, each to "have the use and benefit of one of such equal parts for life," the principal thereof then to go to his or her children, if any, if not, to the next of kin. The executors were empowered to sell the real estate, and in case of sale to keep the proceeds on deposit or invested " until a final settle- ment " of the estate. Construction : No trust was created, as to the residuary estate, but each child entitled to an interest therein, took a legal estate for life in an equal share ; the direction as to the disposition to be made of the proceeds of any sale until " final settlement," had reference to the final settlement of the ac- counts of the executors, and thereupon each beneficiary became entitled to the possession of his or her share for life, subject to the remainders limited thereon. Williams v. Freeman, 98 K Y. 577 ; 83 id. 561. The will of T. gave his residuary estate to trustees in trust, to pay one-half of the net profits and income of the real estate to the testator's wife, for the support and maintenance of herself and the testator's minor children, and to apply the other half in payment of mortgages upon the real estate, and after such payment to invest the residue for the benefit of his children. The trustees were authorized to take charge of the testator's store, stock in trade, etc., to continue the business until the youngest child should arrive of age, and invest the net proceeds ; also to sell the personal estate, convert it into money and invest the same for the benefit of his children. Then, after providing for an advancement to each of his children when they respectively arrive of age or marry, the clause continued thus : " Immediately upon the arrival of my youngest child at the age of twenty-one years, in case my said wife shall not then be living, to divide all my estate, real and personal, and the accumula- 272 X ESTATES IN EXPECTANCY. 17. VESTED ESTATES-CASES. 5. SHABBS TO BE ASCERTAINED BY A DIVISION OB CONVERSION, AND LIMITA- TION OVER IN CASE OF THE DEATH OP THOSE FIRST DESIGNATED PRIOR TO THE DIVISION OR CONVERSION. tions of interest equally among my children, share and share alike, after deducting all advances made as above provided to any of my children, so that each of my children shall have and receive an equal share of my estate." In an action to obtain a judicial construction of the will, it appeared that one of four infant children living at the time of the testa- tor's death had since died under age and without issue. Construction : The gift was not to the children as a class, but each took a vested re- mainder in one-fourth of the residuary estate dependent upon the ter- mination of the trust, and the share of the one who died, with the accu- mulations of income therefrom, descended to his heirs or next of kin, according to the nature of the property ; also such descendants were en- titled to any income that may thereafter accrue during the trust period. The general rule that when a testamentary gift is found only in a direction to divide at a future time, the gift is future and contingent, and not vested, is subordinate to the primary canon of construction, that the construction shall follow the intent to be collected from the whole will. Goebel v. Wolf, 113 K Y. 405. See Townshend v. Frommer, 125 N. Y. 446 (463 ; Matter of Tienkin, 131 id. 391 (407) ; Matter of Gardiner, 140 id. 123 (129) ; Matter of Seebeck, id. 241 (248) ; Matter Of Gilbert, 144 id. 68 (73). Note — From opinion. — When a devise is made or a legacy given, of which the en- joyment is postponed, "the leading inquiry upon which the question of vesting or not vesting, is, whether the gift is immediate, and the time of payment or enjoyment only postponed, or is future or contingent, depending upon the beneficiary arriving at age, or surviving some other person, or the like." Denio, J., Everitt v. Everitt, 29 N. Y. 67. In harmony with this general rule, another general proposition has been formu- lated, that where the only gift is found in a direction to divide at a future time, the gift is future, and not immediate ; contingent, and not vested. Leake v. Eobinson, 2 Mer. 863 ; Warner v. Durant, 76 N. Y. 133 ; Smith v. Edwards, 88 id. 93." (413.) Eemainder vested in children living at death of testatrix under a gift to executors in a trust fund, part of which they were directed to invest and pay over the income to D. "for and during her natural life, and upon her death, to pay over said principal sum to her lawful issue, share and share alike." The residuary clause of the will provided "that in case of the death of any of the beneficiaries or persons entitled to share in the investments herein directed to be made before the time limited for the payment thereof, my will is that the sum be paid over to their next of kin as, according to the statute of distributions, their per- II. FUTURE ESTATES. 273 17. VESTED ESTATES-CASES. 5. SHABES TO BE ASCEBTAINKD BY A DIVISION OR CONVERSION, AND LIMITA- TION OVER IN CASE OF THE DEATH OP THOSE FIRST DESIflNATED PRIOR TO THE DIVISION OR CONVERSION. sonal estate would be divided or distributed." D. died in 1887, leaving a son, three grandchildren, the issue of a son who died after the death of the testatrix, and a granddaughter, the issue of a son who died be- fore the will was executed. Palmer v. Dunham^ 125 N. Y. 68. The will of a testatrix first gave to her executors all of her prop- erty not specifically disposed of, in trust, to be disposed of and expended as they might think best for the support and maintenance of a brother of the testatrix during life ; all that remained thereof at his death, after certain legacies, which were directed to be paid therefrom, the tes- tatrix directed her executors to divide in four equal parts, each to be paid to a beneficiary named "each to share and share alike". One of these beneficiaries died before the time of distribution arrived. Construction : The share did not lapse upon such death, but passed to the parties who were lawfully entitled to succeed to the estate of said beneficiary ; upon the death of the testatrix the residue vested in the persons named, subject to the life estate. Goebel v. Wolf, 113 N. Y. 405. Matter of Gardner, 140 N. Y. 123, digested p. 107. See Bowditch v. Ayrault, 138 N. Y. 322, digested p. 281; Dimmick v. Patterson, 142 id. 333, digested p. 380. A will and codicils were construed to mean that testator intended that the final division of a general fund out of which annuities were to be paid should be postponed until after the death of the three annuitants. This postponement of the division or possession of the fund did not prevent the estate from vesting absolutely on the death of the testator. Forsyth v. Hatlibone, 34 Barb. 388. Testator devised his estate, real and personal, to 'executors, in trust for daughter for life; and after her death, for all her children (testator's grandchildren) equally and their heirs when the youngest came of age. Rents, until then, to be applied in education. Proviso, that if his grandchildren die leaving issue, the latter substi- tuted. Executors had discretion to advance any part of their share before majority. One grandchild died before his mother, but of full age, unmarried. The grandchil- dren took vested estates at the death of the testator. Torrey v. Shaw, 3 Edw. Oh. 376. A will provided that the executor should convert the real and personal estate into cash and that, if after the payment of debts and legacies " there shall remain an amount not exceeding $20,000, that then my said executor pay over the whole of said amount so remaining " to a religious society ; " but in case the amount of said moneys so remaining shall exceed $30,000, then my executor shall pay " to said society "only $30,000, and that he pay over the residue thereof to my nephews and nieces who shall then be living to be equally divided between them." After the payment of the $30,000, there was a surplus. At the testator's death there were fourteen of his ' 35 5i74 X. ESTATES IN EXPECTANCY. 17. VESTED ESTATES-CASES. 5. SHAKES TO BE ASCERTAINED BY A DIVISION OR CONVEKSION, AND LI.MITA- TION OVER IN CASE OF THE DEATH OP THOSE FIRST DESIGNATED PRIOR TO THE DIVISION OR CONVERSION. nephews and nieces liviag, One niece died about a year after death of testator, and another about two years after, but before final distribution. Constructloa : The shares of tlie nephews and nieces vested at the time of the death of the testator, and the representatives of the deceased nieces were entitled to share in the distribu- tion. The law favors the vesting of estates and unless the intention is unequivocally ex- pressed to the contrary, it will not be imputed to the testator. McKimtry v. Sanders, 2 Sup. Ct., 2 T. & C, 181, aff'd in 58 N. Y. 663. Legatee's share was limited over in event of his death without issue before distri- bution. He was declared an habitual drunkard and guardian was appointed. Distri- bution was made except to him and could have been made to him. His share vested. Miller v. Colt, 33 N. J. Eq. 6. Distribution was postponed until the youngest child was of age, and if any child should then have died, leaving children, latter to take. If child die before such time his children take legacy free from debts of parents. Battle v. House, 11 Lea, Tenn., 202. 6. DEVISE TO B. FOR LIFE, REMAINDER TO B.'S ELDEST SON, VESTS IN B. S ELDEST SON AT HIS BIRTH. Wendell v. Orandall, 1 N. Y. 491. 7. GIFT WITH LIMITATION OVER IN CASE OF DEATH BEFORE ARRIVING AT A CERTAIN AGE, OR BEFORE MAJORITY, OR WITHOUT ISSUE. Devise to A. or A.'s child when he shall become of age, with remainder over if he die under age, creates a vested estate in the first taker, defeasible by condition subsequent. Manice v. Manice, 43 N. Y. 805 ; Eoome v. Phillips, 34 id. 463 ; Everitt v. Everitt, 39 id. 76; Radley v. Kuhn, 97 id. 36; Matter of X Y., L. & W. R. Co. v. Van Zandt, 105 id. 89; Avery v. Everett, 110 id. 317; Matter of Crossman, 113 id. 503; Van Axte v. Fisher, 117 id. 401 ; Dimmick v. Patterson, 143 id. 333. See Lockman v. Reilley, 29 Hun, 434, reversed 95 N. Y. 64; Ramsey v. Deremer, 65 Hun, SiS; Matter of Lehman, 3 App. Div. 531; Shangle v. Hallock, 6 id. 55. (a) Where, after a devise or bequest in language denoting an absolute gift of tbe whole estate in fee, there is a subsequent limitation over in the event of the first devisee dying under age and without issue, the gifts are not repugnant to each other, but the latter is a valid execu- tory gift. Norris v. Beyea, 13 N, Y. 373 ; Roome v. Phillips, 34 id. 463 ; Watts v. Ronald, 95 id. 336; Radley v. Kuhn, 97 id. 38 ; Avery v. Everett, 110 id. 317 ; Matter of Crossman, 113 N". Y. 503. See ante, p. 115. (b) Executory gifts limited to talce effect upon the prior legatee dying under age and without issue are not defeated by the death of the II. FUTUBE ESTATES. 275 17. VESTED ESTATES-CASES. 7. GIFT WITH LIMITATION OVER IN CASE OF DEATH BEFORE ABRITINQ AT A CERTAIN AGE, OH BEFORE MAJORITY, OR WITHOUT ISSUE. prior legatee under age and without issue ia the lifetime of the testator ; but such, gifts take effect immediately upon the death of the testator as though there had been no preceding limitation. Nori-is V. Beyea, 13 N. Y. 278. See Bell v. Lowell, 18 S. C. 94 ; Eisner v. KoeUer, 1 Demarest, N. Y., 377. (c) But in the case stated in subdivision seven, if the first legatee attain the prescribed age, or have issue and afterward die in the testa- tor's lifetime, the future estate would not take eflfect, but the whole pro- vision would fail. Norris v. Beyea, 13 N. Y. 373 ; Watts v. Ronald, 95 id. 336 ; Eadley v. Kuhn, 97 id. 36. (d) Where a devise is limited to take effect on a condition annexed to the preceding estate, or if the preceding estate should never arise, the remainder over will nevertheless take place, the first estate being con- sidered only as a preceding limitation and not as a preceding condition to give effect to the subsequent estate. Norris v. Beyea, 13 N. Y. 373. (e) Shares vested in taker upon his arriving at a certain age. Dimmicli v. Patterson, 143 N. Y. 333. (f) Where legacies were given and were certain or capable of being rendered certain in amount, they were vested, although the exact amount could not be determined until the period of payment arrived. Titus V. Weelis, 87 Barb. 186. Testator bequeathed $1,000 to each of his daughters, B., 0., D., and E., and a certain one-half of other moneys equally, and the other one- half of such moneys and the remainder of his personal estate to his sons, F. and Gr.; and in case of the death of either son before he attained the age of twenty-one years and without lawful issue, he gave his per- sonal estate to his surviving sisters in equal shares. In the event of either of the daughters dying before attaining the age of twenty-one years, and without lawful issue, he gave the estate of the daughter so dying to her surviving sisters equally. The testator died in 1844; B., daughter, died before him and F., son, after the testator, each under age and without issue. C, daughter, married in 1846 and died in Decem- ber, 1848, under the age of twenty-one years and without issue, her husband surviving. Construction : (1) The legacy given to B. vested in her sisters surviving at the death of the testator without further limitation over. 276 X. ESTATES IN EXPECTANCY. 17. VESTED ESTATES-CASES. 7. GIFT WITH LIMITATION OVER IN CASE OF DEATH BEFORE ARRIVING AT A CERTAIN AGE, OR BEFORE MAJORITY, OR WITHOUT ISSUE. (2) The legacy and bequest to 0. passed to her surviving sisters and not to her administrator. (3) The share of F. in the personal property vested in his sur- viving sisters and was not further limited over so that the administrator of 0. was entitled to her portion thereof. (4) The gifts limited to take effect upon the prior legatee dying un- der age and without issue were not defeated by the death of the prior legatee under age and without issue in the lifetime of the testator, but took effect immediately upon the death of the testator as though there had been no preceding limitation. But, had the first legatee, for in- stance, B., daughter, attained the age of twenty-one or had she had issue, the future estates would not have taken effect, but the whole pro- vision would have lapsed. Norris v. Beyea, 13 N. Y. 273.* Note. — "Where a devise is limited to take effect on a condition annexed to any pre- ceding estate, or if tliat preceding estate sliould never arise, tlie remainder over will nevertheless take place, the first estate being considered only as a preceding limita- tion and not as a preceding condition to give effect to the subsequent estate. -Devise to B., father, remainder to C, testator's only child and heir at law, after the decease of B. and " when he, the said child, shall be- come twenty-one years of age and become married and have children," and in case of C.'s death before that period, and after death of B., devise over to others. Construction : (1) C. took vested remainder at death of testator subject to be divested only on his dying under tbe age of twenty-one. (2) Upon death of B., 0. became entitled to possession on his attain- ing the age of twenty-one, or upon his marrying and having children before that age. (3) Devise over could only take effect on C.'a dying before arriving at the age of twenty-one. (4) Devise to C, in fee, "when he attains the age of twenty-one" is a vested remainder, provided the will contained an intermediate disposi- tion of the estate, or of rents and profits during B.'s minority, or if it be limited over in the event of C. dying under age. The word " when " was a demonstration of the time when the remainder should take effect irt, 2)ossession, and did not operate as a condition precedent to the estate *See under Estates Contingent, Nellis v. Nellis, 99 N. Y. 505 ; Buel v Southwick 70 id. 581. 11. FUTURE ESTATES. 277 17. VESTED ESTATES-CASES. 7. GIFT WITH LIMITATION OVER IN CASE OF DEATH BEFOBE ARRIVING AT A CERTAIN AGE, OR BEPOEB MAJORITY, OR WITHOUT ISSUE. vesting'in title, but the dying under twenty-one is a condition subse- quent on which the estate is divested. (5) '' When he, the said child, shall become twenty-one years of age and become married and have children " construed " shall become twenty-one years of age or become married and have children." Boome V. Phillips, 24 K Y. 463. See Everitt v. Everitt, 39 N. Y. 76. Devise to G.'s child when he shall become of age, with remainder over, if he die under age, creates a vested estate in the infant child, defeasible by condition subsequent. Here nothing is interposed be- tween the infant and the enjoyment of his estate in possession, he has a vested estate, subject to be defeated by the condition subsequent of his dying under age. This is so as to estates of real property but there is some difference as to personal property. Manice v. Manice, 43 N. Y. ,305, 380, digested p. 423. ! Doe V. Moore, 14 East, 604 ; Roper on Legacies, 571 : Roome v. Phillips, 24 N. Y. 463; Patterson v. Ellis, 11 Wend. 259; Everitt v. Everitt, 29 N. Y. 76, 82, 97; Phillips V. Ackers, 9 Ct. & Finnelly, 583 ; Kane v. Gott, 34 Wend. 641 ; Phips v. Williams, 5 Simons, 44 ; 2 Redfield on Wills, 592-641 ; Gilman v. Reddington, 24 N. Y. 16. J., by her will, gave to .her husband $5,000, which was about one- third of her estate and also the use and benefit of the residue until her oldest daughter, M. S., became of age; she directed that such residue should then be divided equally between her two daughters, M. S. and M., each to come into possession of her share at the age of twenty-one, the husband to have the use of M.'s share until her arrival at that a^e. In case of the death of either of the daughters, before arrival of age, the will directed that " the one living shall receive the share of the one deceased, but in the order of their ages as above described." In case of the death of the two daughters before arrival at the age of twenty-one their respective shares were directed to be divided equally between the testator's "brothers and sisters or their immediate heirs, but in the order above mentioned." M. S. died intestate after she arrived at the age of twenty-one ; after that, but before her arrival of age, M. died. Jleld, that the share of M. S. passed, upon her death, to her next of kin, but that the share of M. went to the brothers and sisters of the testatrix. Watts v. Ronald, 95 N. Y. 226. Devise to executors in trust to receive rents and profits and there- from pay $700 to each of two grandsons when of age, in case of the 278 X. ESTATES IN EXPECTANCY. 17. VESTED ESTATES-CASES. 7. GIFT WITH LIMITATION OVBB IN CASE OF DEATH BBFOBB ARKIVING AT A CERTAIN AGE, OE BEFORE MAJORITY, OR WITHOUT ISSUE. death of either, to the survivor ; trust to continue until testator's son 0. became twenty-five years of age, when he was to have net income less the $1,400 for life ; if he left children estate to become theirs in fee when of age. C, as owner of the next eventual estate, took surplus of the income arising during trust term; C.'s children, if any, would take fee, and in case of their death under age, the fee would vest in their heirs, if C. died without issue, the fee would vest in testator's heirs. Radley v. Zm/wz, 97 N. Y. 26, digested p. 443. Note. — It seems, tliat had there been a contingent limitation over, limited on the fee, to take efEect in case of the first devisee dying before twenty-one, this would not have prevented the vesting of the estate in the first devisee. Estates vested to be divested in case of death without issue. Matter ofK T., L. & W. R. Co. V. Van Zandt, 105 K Y. 89, digested p. 356. The will of S. devised his real estate to his wife for life if she re- mained unmarried, and upon her decease or marriage, to C. ; in the case of the death of the latter without children, the remainder to go to A. Construction : Upon the testator's death C. took a vested remainder in fee, subject to be defeated by his death without children, upon which event the substituted remainder, given on that contingency to A., would vest in possession. Vanderzee v. Slingerland, 103 N. Y. 47; In re N". Y., L. & W. R E. Co., 105 id. 89. Avery v. Everett, 110 id. 317, aff'g 36 Hun, 6. See Van Axte v. Fisher, 117 N. Y. 401. The will of C. directed that $100,000 should be invested and the in- come thereof paid to his wife during her life ; upon her death the prin- cijial to be paid to H., the testator's adopted son, if he shall then have arrived at the age of twenty-eight years ; if not, it was to be kept invested and the income applied to his use until he arrived at the age of twenty- eight, and then the principal with any accumulations of income, to be paid to him. In case of his death before arriving at that age, without leaving lawful issue, the will directed that said principal should be di- vided among certain beneficiaries named ; if he left lawful issue, then said sum was directed to be paid to such issue. The residuary clause of the will provided as follows : "All the rest, residue and remainder of my estate, real and personal, wheresoever and whatsoever, and such as I shall hereafter acquire, I do give, devise and bequeath to my adopted II. FUTURE ESTATES. 279 17. VESTED ESTATES— CASES. 7. GIFT WITH LIMITATION OVER IN CASE OF DEATH BBFOBB AKEIVING AT A OBETAIN AGE, OR BBFOBB MAJORITY, OR WITHOUT ISSUE. son, * * * to be paid over to him when he shall have arrived at the age of twenty-eight years." Following this were provisions dispos- ing of the residuum in case of the death of H. before reaching the age of twenty-eight. 0. died, leaving his widow and H. surviving him. H. died after reaching the age of twenty-eight ; the widow survived him. Construction : H. took a vested interest in remainder in the $100,000, if not by vir- tue of the clause setting it apart, at least under the residuary clause. 2 Eoper on Legacies, 453 ; King v. Strong, 9 Paige, 94 ; In re Benson, 96 JSr. Y. 499 ; Cruikshank v. Home of the Friendless, 113 id. 337. Matter of Grossman, 113 N. Y. 503. See Smith v. Smith, 141 N. Y. 39, 34. Note. — "The will contained no direction as to the disposition of the income of the residuary estate until H. reached the age of twenty-eight. Under the Revised Stat- utes (1 R. 8. 736, sec. 40), the rents and profits of tlie real estate were payable as they accrued to H., he being presumptively entitled to the next eventual estate, and so far as the residuary estate was personal, its income belonged to H. as the owner of the corpus thereof, and was payable to him as it accrued. Gilman v. Reddington, 34 N. Y. 9; Manice v. Manice, 43 id. 303; Radley v. Kuhn, 97 id. 36." B. died, leaving a widow and two children, a son and a daughter, him surviving. By his will he directed his residuary estate to be divided into three parts. He gave the rents, issues and profits of one part to his wife, of one to his daughter during life, and of the other part to the son until he should reach the age of thirty years, when one-half of said part was given to him absolutely, the other half when he attained the age of forty. In case of the death of the son before his third became vested in him, either in part or wholly, the portion that had not vested was given to his children, if any survived him. The will directed that at the death of the widow the part appropriated to the use of the widow should be divided and one-half thereof added to the daughter's part, the other half to that of the son, each "to be governed and aSected in every re- spect" by the provisions of the will touching the parts of the children respectively "as fully and particularly as if such additions had origin- ally constituted portions of said parts." The son died after reaching the age of forty, leaving children. Thereafter the widow died. Action for the construction of the will. Construction : It was the clear intention of the tastator that the son should become vested with one-half of all he was to take under the will at the age of 280 X ESTATES IN EXPECTANOr. 17. VESTED ESTATES-CASES. 7. GIFT WITH lilMITATION OVER IN CASE OP DEATH BEFORE ARBIVINS AT A CERTAIN AGB, OB BEFORE MAJORITY, OR WITHOUT ISSUE. thirty, and with the other half at forty, subject, however, to the life es- tate of the widow in the one-third set apart for her, and so an assign- ment by the son of his interest carried with it one-half of that third. Dimmick v. Patterson, 142 N. Y. 322, rev'g 66 Hun, 492. The absolute ownership of an estate was not suspended by direction to pay or apply the interest to four nephews during the minority of J., as the infants took an absolute interest in the legacies given to them respectively, and such legacies were certain or capable of being ren- dered certain in amount and payable at a definite period, although the exact amount that they should receive could not be determined until that period arrived. Titus v. Weeks, 37 Barb. 136. See, generally, Moore v. Hegeman, 72 N. Y. 676; Knowlton v. Atkins, 134 id. 313; Miller v. McBlain, 98 id. 517. 8. ESTATES GIVEN TO SEVEEAL PBBSONS WITH A LIMITATION OVER OP EACH SHARE TO THE SDBVIVORS; SUB-SHARES TEST ABSOLUTELY IN THE SUR- TIVOKS. When an estate is given to several persons with a limitation over of each share to the survivors in the case of the death of any first taker, upon the death of any one of the first takers the sub-shares taken by the survivors vest absolutely, unless a contrary intention appear. Manice v. Manice, 43 N. Y. 305 ; Norris v. Beyea, 13 id. 273 ; Smith v. Scholtz, 68 id. 41, digested p. 285; Moore v. Hegeman, 72 id. 376, 383 ; Oxley v. Lane, 35 id. 340 ; Guernsey v. Guernsey, 36 id. 267 ; Everitt v. Everitt, 29 id. 39 ; Beardsley V. Hotchkiss, 96 id. 201 (213). See Henley v. Robb, 86 Tenn. 474. 9. THE VESTING OP ESTATES OB INTERESTS IN PERSONS TAKING BY SUBSTITU- TION. Guernsey v. Guernsey, 36 N. Y. 267 ; Gilman v. Reddingtou, 24 id. 9 ; Provoost V. Calyer, 63 id. 546 ; Radley v. Kuhn, 97 id. 26 ; Van Brunt v. Van Brunt, 111 id. 178 ; Vanderpoel v. Loew, 112 id. 167 ; Nelson v. Russell, 135 id. 137 ; Bowditch v. Ayrault, 138 id. 223 ; Champlin v. Haight, 10 Paige, 274. Estates defeasible in case taker die without issue. — By the terms of the will, the testator had devised his estate to his three children in fee, share and share alike, providing, however, that in case either should die without issue, that such share should go to the surviving children equally. One of the children died, leaving an heir, and such heir took abso- • lutely the estate of its parent. Guernsey v. Guernsey, 36 N. Y. 267. When estates vested in issue by substitution. Van Brunt v. Van Brunt, 111 N. Y. 178, digested p. 452. II. FUTURE ESTATES. 281 17. VESTED ESTATES -CASES. 9. THE VESTINa OF ESTATES OR INTERESTS IN PERSONS TAKING- BY SUBSTITU- TION. When interests vest in remainderman by substitution. Vanderpoet V. Loew, 112 N. Y. 167, digested p. 454. See Gilmau v. Reddington, 24 N. Y. 9. While, as a general rale, the law favors the vesting of legacies as soon as possible after the death of the testator, it is a question of intent ; the will must be construed as made, and the intent of the testator as thereia made manifest must control. So, also, while as a general rule, in the case of personalty, where there is no gift except by way of a direction to the executor or trustee to pay, or to divide and pay at a future time, the vesting of the prop- erty in the beneficiary will not take place until that time arrives, the intention of the testator must control and must be sought from the language actually employed. A., by his will, provided for the creation of several separate and in- dependent trusts, some of which might last for the full term permitted by statute; his residuary estate he gave to his trustee, who was directed to sell and convert the whole thereof, both real and personal, into- money, and, "as fast as practicable," to divide two-thirds thereof be- tween the children, "who may be living at the time" of his death, of his brothers and sisters named, "and to the descendants of such of said children as may be deceased when said estate, or any part thereof, is distributed," said two-thirds " to be divided between all such children and their descendants equally, * * * all the children of a deceased person to receive collectively the portion their parent would, if living at such distribution, be entitled." Action for the construction of the will. Construction : The gift was in substance to the children of the testator's brothers and sisters living at the time of his death, and it then vested in those children, subject to be divested by the death of a child thereafter, and the substitution of his or her descendants, if any; if there were no such descendants, then the share remained vested, and, upon the death of the child, formed part of his or her estate, to be disposed of by the will of such decedent, or, in case of intestacy, as provided by statute. Boio- ditch V. Ayrauli, 138 K Y. 222, ag'g 63 Hun, 23. Where an estate is devised in fee, in remainder, after the termination of a particu- lar estate in the premises, with an executory limitation over to the issue of the devisee- in case of the death of such devisee, such dying is to be construed to apply to the time when the remaiader is limited to take effect in possession, and not to the time of 36 282 X ESTATES IN EXPECTANCY. IT.'VESTED ESTATES-CASES. 9. THE VESTING OF ESTATES OB INTERESTS IN PERSONS TAKING BY SUBSTITTT- TION. the death of the testator ; and the term issue, in sucli a case, is a term of purchase and not of limitation. OliampUn v. Saiglit, 10 Paige, 274. See, generally, Radley v. Kuhn, 97 N. Y. 26 ; Provoost v. Calyer, 63 id. 546 ; Nelson v. Russell, 135 id. 137. 10. ESTATES GIVEN TO A CLASS. Where the members of the class take vested interests in a legacy dis- tributable at a period subsequent to the death of the testator, but sub- ject to open and let in afterborn children, they take vested interests in their shares subject to a diminution thereof as the number of members of the class is increased by future members; and in case of the death of any of the children previous to the period for distribution, their shares will go to their respective representatives. Tucker v. Bishop, 16 N. Y. 403, 404 ; Provoost v. Calyer, 63 id. 545 ; Stevenson V. Lesley, 70 id. 513, 517 ; Surdam v. Cornell, 116 id. 305, 309 ; Kent v. Church of St. Michael, 136 id. 10 ; Hannau v. Osborn, 4 Paige, 336. See Dulaney v. Middleton, 73 Md. 67 ; Hatfield v. Sohier, 114 Mass. 48. (a) Where there is a future devise to children or issue with a substi- tuted devise in case they die during the precedent estate, the remainder vests as soon as a child is born, subject to let in afterborn issue and to be divested as to any of such issue who may die during the continuance of the precedent estate. Smith V. Scholtz, 68 N. Y. 41 ; Moore v. Littel, 41 id. 66 ; Bliven v. Seymour, 88 id. 469 ; Knowlton v. Atkins, 134 id. 813 ; Campbell v. Stokes, 143 id. 33 ; Matter of Seaman, 147 id. 69 ; Matter of Baer, id. 348 ; Chism v. Keith, 1 Hun, 589 ; Titus v. Weeks, 87 Barb. 136 ; Lawrence v. Bayard, 7 Paige, 70 ; AVilliamson v. Field's Exr's, 3 Sandf. Ch. 586 ; Adams v. Becker, 28 St. Rep. 910. (b) If the language of the instrument creating the remainder is capable of any construction which will permit the issue of one of the class dying before payment to participate in the remainder, such construc- tion will be adopted in preference to one which will exclude such issue. Matter of estate of Brown, 93 N. Y. 295, 399 ; see. Low v. Harmony, 73 id. 408 ; Scott V. Guernsey, 48 id. 106 ; Byrnes v. Stilwell, 103 id. 453 ; Carpenter v. Scher- merhorn, 3 Barb. Ch 314 ; Doe v. Provoost, 4 Johns. 61. (c) Where an estate is vested in persons living, subject only to the contingency that persons may be born who will have an interest therein, the living owners of the estate, for all purposes of any litigation in ref- erence thereto and affecting the jurisdiction of the courts to deal with the same, represent the whole estate and stand not only for themselves, but also for the persons unborn. Kent V. Church of St. Michael, 136 N. Y. 10 ; Mead v. Mitchell, 17 id. 310 ; * See gift to a class, p. 283. II. FUTURE ESTATES. 283 17. VESTED ESTATES-CASES. 10. ESTATES GIVEN TO A CLASS. Moore V Littel 41 id. 76 ; Campbell y. Stokes, 142 Id. 33 ; see, Townshend v. From- toer, 125 id. 446 ; Matter of Baer, 147 Id. 348. (d) Where an estate is given to a person for life, with remainder to heirs of a living person, such persons living as are the presumptive heirs of such living person, have been held to take the remainder vested in interest, subject to the divesting in whole, or pro tanto as stated in subdivision ten. Mead V. Mitchell, 17 N. Y. 210 ;' Moore v. Littel, 41 id. 76 ; dig. p. 298; Campbell V. Stokes, 142 id. 23 ; see, also, Eldridge v. Eldridge, 41 N. J. Eq. 89 ; Post v Van Houghton, id. 82 ; Coit v. Rolston, 44 Hun, 548 ; Chism v. Keith, 1 id 589 ■ Bow- man V. Pinkham, 71 Me. 295 ; Swett v. Thompson, 149 Mass. 302. See pp '255-6 Smith V. West, 103 111. 332 ; Croxall v. Shererd, 5 Wall. 288 ; Kumpe v. Coons 63 Ala. 448. ' A testator bequeathed his residuary personal estate to his executors in trust, to invest the same, declaring that one-half, principal and inter- est, should be for the benefit of the children of a grandson, the other half for those of a granddaughter, "and to be paid over in the follow- ing manner:" One-half of the income to be applied annually for the benefit of the children of each grandchild respectively ; and whenever either of the children of the grandson should come of age, to pay over to that child his or her proportion of the one-half of said principal ; with the same provision for the children of the granddaughter. Construction : Each of the great-grandchildren living at the death of the testator took an immediate vested interest in an equal share of the fund be- queathed to the children of his parent, subject to be diminished in quantity by the birth of subsequent children before the first child of the class became of age; if the uncertainty of the quantity of the interest of the children in being at the death of the testator would suspend the power of alienation (as, per Paige, J., it does not), such suspension could only endure for one life in being at the creation of the estate, that of the parent ; therefore, the will involves no illegal suspension of the absolute ownership or power of alienation. Tucker v. Bishop^ 16 K Y. 402, 404. XoTB from opinion. — "Where the period of distribution is postponed until the attainmcntof a given age by the children, the gift will apply only to those who are liv- ing at the death of the testator, and who shall have come into existence before the first child attains the age named, being Ihe period when the fund is first distributable in respect to any one object or member of the class. Where the members of a class take testator, but subject to open and let in afterborn children, they take their vested inter- ests in their shares subject to the distribution of those shares, as the number of mem- ' See Addenda, Minot v. Minot, 17 App. Div. 521; see, also, McQillis v. McGillis, 11 id. 359. 284 2. ESTATES IN EXPECTANCY. 17. VESTED ESTATES-CASES. 10. ESTATES GIVEN TO A CLASS. bers of the class is increased by future births; and on the death of any of the children previous to the period for distribution, their shares will go to their respective repre- sentatives. Collin V. Collin, 1 Barb. Ch. R. 680 ; Jenkins v. Freyer, 4 Paige, 53; Davidson v. Dallas, 14 Ves. 576: Hill v. Chapman, 1 id. 405; 3 Jarm. on Wills, 76, 79, 408; Middletonv. Messenger, 5 Ves. 136 ; Clarke v. Clarke, 8 Sim. 59; Walker v. Shore. 15 Ves. 122 ; Whitbread v. Lord St. John, 10 id. 152. (p. 404-5.)" Although previous to the Eevised Statutes, a devise without words of Ihnitation or inheritance carried a life estate only (1 N. Y. 489 ; 4 id. 61 ; 36 id. 231), yet if, from the whole will, it might be inferred that the intent was to convey a fee, the intent would govern. Devise of certain premises to son " during his natural life, after his decease to his lawful children." Construction : Son took a life estate and children in esse at death of testator a vested remainder in fee, which would open to let in afterborn children. It not otherwise appearing, it was to be presumed that all of testa- tor's property was specified in the will, and this authorizes inference of intent to give remainderman a fee. ■ Gernet v. Lynn, 31 Penn. 94. As testator used words of inheritance in some places in will and omitted them in others, it was deemed evident from the whole will that testator did not deem words of inheritance important to vest the whole estate. Provoost v. Galyer, 62 N. Y. 545. Note. — Under the rule in Shelley's case son did not take a fee, as the word " chil- dren" used was not equivalent to heirs. (552.) Decision relates to the will of John Hopper, who died in 1819. Devise to three grandchildren, B., C, andD., "and their heirs forever " of real estate, to be disposed of by the executors named as follows : " The said real estate shall not, at any time hereafter, be sold or alienated, but my said executors * * * shall * lease * * the same in such terms * * * as they may deem mos t advanta- geous to my said heirs, and the rents, issues and profits shall be annually paid by my executors * * * to my said heirs * * * in equal proportions * * * and in case any of my said heirs and devisees shall die without lawful issue, then and in such case my will is that the share of the one so dying shall be and inure to the sole use, benefit and behoof of my said grandchildren and the survivor of them, and the heirs of such survivor forever." The persons named were the heirs of the testator. Held (1) The executors took the legal estate. (2) The grandchildren took equitable life estates. II. FUTURE ESTATES. 285 17. VESTED ESTATES-CASES. 10. ESTATES GIVEN TO A CLASS. (3) The word " heirs" meant heirs of the body, or issue, and a re- mainder vested at the death of the testator in such issue of the grand- children as were then living, subject to let in afterborn issue, and sub- ject to be divested as to any such issue dying during the continuance of the life estate. 6 Green'l Cruise, 287-239 ; Bundy v. Bundy, 38 N. Y. 410; Taggart v. Murray, 53 id. 233. (4) Each grandchild took, in addition to their life estate, a future estate contingent upon one or both of the other grandchildren dying without issue surviving such death. Smith v. Scholtz, 68 K Y. 41. The same will was involved in Striker v. Mott, 3 Paige, 387; Brewster v. Striker, 3 N. T. 19; Striker v. Mott, 28 id. 83. See Cochrane v. Schell, 140 N. Y. 516, 539. Notei.— The will was to be construed as if written as follows : "I give my real estate in trust for the benefit of grandchildren respectively, and after their death to their Issue respectively; and if any such grandchildren shall die without issue, the sur- viving grandchildren shall take his share."* It will be observed that the remainder to the issue vested as soon as they were born; before that it w;is as to such issue contingent, as there was, until some issue was born, no person in being who would have immediate right to the possessions of the lands upon the ceasing of the life estate. The remainder given to grandchildren was contingent, because, until the death of any child, it could not be known whether he or she would die without issue. Notb^— If of A., B., and C, A. die without leaving issue, B. and C. would take A.'s share equally and absolutely; if then B. died without leaving issue, 0. would take B.'s share; he would not also take B.'s share of A.'s share. Guernsey v. Guernsey, 36 N. Y. 367; Everitt v. Everitt, 39 id. 85, where cases pro and con are reviewed; Nor- ris V. Beyea, 13 id. 273"; and if C. died without issue he would leave an absolute estate in his own share, in B.'s share, and one-half of A.'s share. The will is construed as if there were three separate parts of the real estate, so that at A.'s death a final disposition was made of his share, and the same as to B. and C. Where the devise is to a class, viz., children of, to take effect in enjoyment at a future time, the child of A., born subsequent to t he death of the testator, and before the time for the distribution of any part of the corpus of the estate has arrived, is entitled to a share therein. Steven- son V. Lesley, 70 N". Y. 512 (517). Tucker v. Bishop, 16 N. Y. 403 ; Teed v. Morton, 60 id. 506; Johnson v. Valentine, 4 Sandf. 37; 3 Wash, on Real Prop. 511. See further, Gilman v. Reddington, 34 N. Y. 9; Smith v. Edwards, 88 id. 93, 104; Matter of Smith, 131 id. 239, 247; Hotaling v. Marsh, 147 id. 39; Bowditch v. Ayrault, 138 id. 333. B., by will, gave to each of his six daughters a life estate in one-tenth part of his residuary estate, with remainder over as follows : " Upon the death of either or any of my said daughters, I give, devise and bequeath * A different construction was suggested in Tyson v. Blake, 23 N. Y. 563. 286 S. ESTATES IN EXPECTAJSTCY. 17. VESTED ESTATES-CASES. 10. ESTATES GIVEN TO A CLASS. unto sucli child or children, as my said daughter shall have or leave living at her decease, and to the heirs or assigns of such child or chil- dren as tenants in common, one part or share of my said estate ; the children of said daughters to have the share whereof the mother received the rent and income during her life." Construction : The remainder limited upon the life estate of each daughter vested ia all of her children, subject only to open and let in afterborn children, and descendible to the heirs of any of said children which might die before their mother; and, hence, the children of a son of one of the daughters dying before her, were entitled to participate in the remainder limited upon his mother's life estate. Matter of Estate .of Brown, 93 N. Y. 295, 299, ag'g 29 Hun, 412. Note '.—Devise ' ' to the children of my said son, David Manners, and to their respec- ive heirs, assigns, was held to show an intention to benefit not only David's children, but the families of such of them as miglit die before the contingency happened upon which the children were to take." Note '. — The significance of the words "have or leave " and the distinction between "having" and "leaving" are recognized in several of the authorities. AVeak- ley V. Rugg, 7 T. K. 333 ; "White v. Hill, L. R., 4Bq., 365 ; Bryden v. Willett, L. R., 7 Eq., 473. Such words meant here that upon the death of each of his daughters the remainder should go to the children she might have, or leave living, the living children, and to the heirs and assigns of those who might have died, as tenants in common. The language was equivalent to this, " to such child as my daughter so dying shall have (or leave living at her death) and to the heirs and assigns of such child." (See opinion SOI.) See further, Monarque v. Monarque, 80 N. Y. 330; Matter of Paton, 111 id. 480; Mullarky v. Sullivan, 136 id. 337; Soper v. Brown, id. 351; Matter of Truslow, 140 id. 605. A clause in the will of G., after a devise to his daughter Maria of two lots, continued thus : "And from and immediately after the death of my said daughter Maria, I give, devise and bequeath the last aforesaid two lots * * * unto the lawful child or children of ray said daughter, his or their heirs forever ; if more than one, share and share alike as tenants in common." In case any of the children of Maria '' at the time of her death be dead leaving a lawful child or children, him or her surviving," it was provided that " such child or children shall take the share or portion which his, her or their parent would be entitled to if living." In an action for the partition of the land devised, it appeared that at the time of the death of the testator the daughter named was the mother of six children, three of whom II. FUTURE ESTATES. 287 ir. VESTED ESTATES-CASES. 10. ESTATES GIVEN TO A CLASS. died without issue before her death. After the testator's death five more children were born to her, all of whom survived her. Construction : The six children living at the testator's death took a vested re- mainder in fee subject to open and let in children born thereafter ; the five children therefifter born became entitled to a share in the re- mainder ; the shares were not enlarged by the death of three of the remaindermen without issue, but their shares were alienable, descendi- ble and devisable; the words "if living" did not refer to the time of the death of the life tenant, and were not intended to limit the number of shares to those of her children who should survive her, but had special reference to the share or shares which the issue of the deceased children were to take in case they left issue. An estate in fee, created by a will, can not be cut down or limited by a subsequent clause, unless it is as clear and decisive as the language of the clause which devises the estate. Byrnes v. SUlwell, 103 N. Y. 453. Distinguishing, Kodine v. Greenfield, 7 Paige, 544 ; De Peyster v. Clendining, 8 id. 295 ; Kane v. Astor's Executors, 5 Sandf. 467 ; In re Ryder, 11 Paige, 185 ; Sberidan v. House, 4 Keyes, 569 ; Moore v. Littel, 41 JST. Y. 66 ; Smith v. Scholtz, 68 id. 41 ; Kelso v. Lorillard, 85 id. 177. Modifying, Byrnes v. Labagh, 38 Hun, 533. See Dole v. Keyes, 143 Mass. 237 ; but see Darnell v. Barton, 75 Ga. 377. From opinion. ^"An estate in fee, created by a will, can not be cut down or limited by a subsequent claim, unless it is as clear and decisive as the language of the clause which devises the estate. Thornliill v. Hall, 2 Clark & Fin. 23 ; Rose- boom V. Roseboom, 81 N. Y. 856, 359 ; Campbell v. Beaumont, 91 id. 467 ; Freeman v Coit, 96 id. 63, 68. The effect of the construction contended for by the counsel for the respondent would be that, in case all the children of the testator's daughter had died during her lifetime without issue and there were no survivors, the estate would pass to the collateral heirs. The grandchildren of the testator would thus he. divested of any absolute interest in the estate by remote kindred. They would take only an unsubstantial estate, and in case they did not survive their mother, they would be vested with no interest whatever. The law favors the vesting of estates, and courts will always give such a con- struction to a will as will tend to best provide for descendants or posterity, and will pre- vent the disinheritance of remaindermen, who may happen to die before the termina- tion of the precedent estate. Moore v. Lyons, 25 Wend. 119, 142 ; Scott v. Gurnsey, 48 N. Y. 106 ; Low v. Harmony, 73 id. 408. We are referred by the counsel for the respondent to numerous cases, which, it is claimed, sustain the position contended for by him, but none of them are precisely in point. Those relied upon in this state are clearly distinguishable, aa will be noticed upon an examination of the same. In Nodine v. Greenfield, 7 Paige, 544, the devise was to the widow for life and then to the children of another person, who should be living at her death, and the issue of such as should die ; and in default of such chil- 288 X. ESTATES IN EXPECTANCY. 17. VESTED ESTATES-CASES. 10. ESTATES GIVEN TO A CLASS. dren or issue then living, then over to such person; and if he were dead, to the testa- tor's next of kin. It will be seen that the facts differ materially from those presented in the case now considered, and the case is not analogous. In DePeyster v. Clendining, 8 Paige, 395, there was a devise of the life interest to his wife, then to his children and upon their death to their issue; and if either of , them died without issue, their shares to go to the survivors. Here is an express pro- vision in favor of the survivors, which makes a marked distinction between the case cited and the one at bar, and renders it entirely inapplicable. In Kane v. Astor's Executors, 5 Sandf . 467, 469, the devise was to the daughter during life and then to the surviving issue, thus expressly providing for any who survived. In Matter of Ryder, 11 Paige's Ch. 185, the devise was to A. for life, remainder to her surviving children, and to the issue of such as should have died leaving issue at her death. Here also the survivor is provided for. In Sheridan v. House, 4 Keyes, 569, there was a grant to J. for life, and after his decease to his heirs forever; and it was held that this vested future estate of each child, though liable to be defeated by the child's death before that of his father, is, nevertheless, under our statute law, devisable, descendible and alienable. This deci- sion sustains the view that the devisees have a vested interest, which they could law- fully dispose of; and it does not aid the plaintiff's case. If anything, it establishes that the devisees, who died, had an interest which was vested and transferable and devisable, subject to the conditions provided for in the grant. As the remainder in the case cited was limited to the heirs and assigns for life, before the right is absolute the tenant for life must die to terminate the estate and to ascertain the heirs. The character of heir must be gone before the remainder vests In possession, and hence the remainder may be defeated by the death of any child before his father. In the case at bar, the devise is to the child or children of the life tenant, thus specifying the •character of the devise after the death of the life tenant and leaving no uncertainty as to who was entitled to the remainder. In Moore v. Littel, 41 N. Y. 66, the devise was to a person named, and after his death to his heirs and assigns forever, and the remarks made concerning the case last cited are applicable. In Smith v. Scholtz, 68 N. Y. 41, the devise was to the grandchildren of the tes- tator, with a provision in favor of the survivor and the heirs of such survivor, and it contains nothing adverse to the views we have expressed. Reliance is also placed on Kelso v. Lorillard, 85 N. Y. 177, where the devise was to the husband for life, remainder to a son if he should live until he became of age, and then over. Here is an express provision for defeat of the estate in case of the death of the son before maturity, and the case in no way sustains the rule contended for by the respondent's counsel. * * » The appellants' counsel cited several cases to sustain the position that the testator intended that, upon his death, his daughter should be entitled to, and should take a life estate in his land, and that her children who should then be living should at the same time be entitled to, and should take a vested remainder in fee in the lands; if more than one, share and share alike, and as tenants in common, subject, however, to open and let in afterborn children to an equal share with them. Wemple v. Fonda, 2 Johns. 388; Doe v. Provoost, 4 id. 61; Livingston v. Greene, 53 N.Y. 134; Embury V. Sheldon, 68 id. 333. It is true that the authorities referred to tend strongly to uphold this construction II. FUTURE ESTATES. 289 17. VESTED ESTATES-CASES. 10. ESTATES GIVEN TO A CLASS. of the testator's will. While they bear upon the subject, they do not, however, pre- cisely cover the point here presented, and can not be regarded, therefore, as entirely conclusive." Estate vested in children in shares subject to open to receive after- born children. Surdam v. Oornell, 116 N. Y. 305, 309, digested p. 458. Estate vested in children, defeasible by death during minority; in- case of such death over to their mother ; by death of mother before chil- dren ; children's estate then became indefeasible by descent. Knowlton V. Atkins, 134 N. Y. 313, digested p. 316. Where an estate is vested in persons living, subject only to the con- tingency that persons may be born who will have an interest therein, the living owners of the estate, for all purposes of any litigation in refer- ence thereto, and afifecting the jurisdiction of the courts to deal with the same, represent the whole estate, and stand not only for themselves, but also for the persons unborn. Where an unrecorded deed of land has been lost, an action in equity is maintainable to compel the grantor, or after his death those repre- .senting his title, to execute another deed, so as to clothe the grantee with the record title. Such an action is not dependent upon any of the provisions of the Code of Civil Procedure, sees. 1638, 1650, 2345, in reference to the de- termination of adverse claims to real estate and authorizing actions in cases specified to procure a conveyance, but has its sanction in the gen- eral jurisdiction of a court of equity. Plaintiffs as executors of K., under a valid power of sale contained in his will, contracted to sell certain premises to defendant ; it refused to complete the purchase on the ground of defect of title to one-half the premises. K. had in fact purchased and paid for that half, and received a deed thereof, which was not recorded and was lost. S., K.'s grantor, had died leaving a will devising all her real estate to her executors in trust, for her three children during life, and after the death of any child to pay over and divide his or her share to and among his or her children then surviving, and the lawful issue of any such child or children then deceased. Plaintiffs brought an action against trustees appointed by tfie will of S., her three children and also her grandchildren then living, asking that defendants execute and deliver a deed ; a special guardian was appointed for the infant defendants, and in pursuance of a judg- ment in said action granting the relief sought, the adult defendants in their own names, and the infants by their special guardian executed a deed to plaintiffs, and to the devisees and heirs at law of K The grant- 37 290 X ESTATES IN EXPECTANCY. 17. VESTED ESTATES— CASES. 10. ESTATES GIVEN TO A CLASS. ees in said deed then united in a deed to defendant, which it refused to accept. Construction : The grandchildren of S. took under her will vested remainders in the^. shares of their parents, subject to open and let in afterborn grandchil-JJ dren ; the defendants in the action so brought by plaintiffs represented^ the whole title to the real estate of S. ; afterborn grandchildren were concluded by the jadgment, and the deed of said defendants conveyed a good title ; the said judgment simply confirmed the title to land which S. had conveyed, and there was no occasion for the court to make pro- vision therein for persons not in esse as they by the adjudication never could have an interest. Kent v. Church of St. Michael, 136 N. Y. 110. See, Kilpatrick v. Barron, 135 N. T. 751; Harris v. Strodl, 13a id. 393; Monarque V. Monarque, 80 Id. 330; Cheeseman v. Thome, 1 Edw. Cli. 639; Mead v. Mitchell, 17 N. Y. 310; Brevoort v. Grace, 53 id. 345, distinguished. See Moore v. Littel, 41 id. 76; Townshend v. Frommer, 125 id. 446. Matter of Baer, 147 id. 348. From opinion. — "The judgment against the trustees and heirs of Mrs. Stewart was in a proper action and proper form, and the question is whether it will bind the? afterborn grandchildren if any, of Mrs. Stewart. We think it will. The trustees, children and grandchildren of Mrs. Stewart could not cut off or affect the title in the land of unborn grandchildren by any conveyance in pais. R. S., part 2, eh. 1, tit. 3, art. 1, sec. 14. By such a conveyance they could convey no greater title than they had. The effect of such a conveyance was under consideration in Kilpatrick v. Barron, 135 N. Y. 571, and Harris v. Strodl, 133. id. 392. If the title to this land had actually been devolved under the will of Mrs. Stewart, and an action were brought to partition it, or to foreclose a mortgage upon it, or in some other way to change or extinguish the title, it would be the duty of the court to protect the rights of unborn grandchildren by setting apart land, or the proceeds of the land, to represent in some form their interests. Cheesman v. Thome, 1 Edw. Ch. 629 ; Mead v. Mitchell, 17 N. Y. 310 ; Brevoort v. Grace, 53 id, 345 ; Monarque v. Monarque, 80 id. 320. "Where an estate is vested in persons living subject only to the contingency that persons may be born who will have an interest therein, the living owners of the es- tate, for all purposes of any litigation in reference thereto and affecting the jurisdic- tion of the courts to deal with the same, represent the whole estate, and stand not only for themselves, but also for the persons unborn. This is a rule of convenience, and almost of necessity. The rights of persons unborn are sufficiently cared for, if, when the estate shall be sold under a regular and valid judgment, its proceeds take its place and are secured in some way for such persons. Calvin on Parties, 48 ; Mit- ford's Pleadings, 178 ; 3 Spence Eq. Jur. 707 ; 1 Smith's Ch. 93 ; Story's Bq. PI. sees. 144, 148 ; WiUs v. Slade, 6 Yes. 498 ; Gaskell v. Gaskell, 6 Sim. 643 ; Nodin^ V. Greenfield, 7 Paige, 544." The will of M. directed his executors to divide his residuary estate into as many shares as he had children, and gave, for each child surviv- II. FUTURE ESTATES. 291 17. VESTED ESTATES-CASES. 10. ESTATES GIVEN TO A CLASS. ing him, one share to the executors to be held in trust for said child for life. Upon the death of the beneficiary the executors were directed to " convey, transfer, pay over and deliver" the share to his or her lawful issue if any survive the parent. In case none survived provision was made for the disposition of such share. All of the testator's children and sixteen grandchildren were living at his death. In an action for partition of lands of an interest in which M. died seized, the grandchil- dren were not made parties. Action to compel specific performance of a contract for the purchase of said lands, to which plaintiff claimed title under a deed on sale pursuant to judgment in the partition suit. Construction : The issue of any child of the testator living at his death took a vested remainder in the share held in trust for the parent, subject to open and let in afterborn children, and to be divested by their death before the death of the parent ; the rights of the grandchildren were not dependent in any way upon the action of the trustees, nor did the vesting of their interest await the exercise by the trustees of their power to "convey, transfer," etc, but they took as remaindermen in- dependent of the power. Accordingly, the grandchildren of the testator were necessary parties to the partition suit, and so plaintiff's title was defective and he was not entitled to enforce his contract. Camphell v. Stokes, 142 N. Y. 23, afE'g 66 Hun, 381. Note. — "The issue living are presumptively entitled in remainder and during the life of the parent, they living, have a vested future estate in the parent's share. The case of Moore v. Appleby, 108 N. T. 237, is a direct authority for the conclusion above stated, and follows prior cases as well as the rule of the statute. Mead v. Mit- chell, 17 N. T. 310 ; Moore V. Littel, 41 id. 76 ; 1 Rev. St. 723, sec. 13. The case of Townshendv. Frommer, 125 N. T. 446, does not and was not intended to overturn the general doctrine, that remaindermen are not bound by a conveyance of the estate to which their interest attaches unless they are parties thereto in fact or in law. The case was peculiar and anomalous and involved complicated questions under the law of trusts and powers. It arose under a trust deed, whereby the grantor retained the beneficial use of the property for life and which contained directions for the disposi- tion of the fee after her death, to persons who were not ascertainable until the hap- pening of that event. The intention of the grantor, deduced by the court from the transaction, was to postpone the accruing of any future interests until that event happened. The present case affords no ground for such a presumption. Whether the remainders in this case were vested or contingent, the persons in being when the partition action was commenced, presumptively entitled to possession on the death of the life tenant, were necessary parties." (P. 30). See Bliven v. Seymour, 88 N. T. 469 ; Jliiler v. Gilbert, 144 id. 68 ; Moore v. Lit- tel, 41 id. 66; Johnston v. Brasington, 86 Hun, 106. 292 X. ESTATES IN EXPECTANCY. 17. VESTED ESTATES-CASES. 10. ESTATES GIVEN TO A CLASS. S. (lied in October, 1876, and bequeathed the residue of his estate to his executors in trust to apply and pay over the income of an undivided equal part thereof to his adopted daughter and niece, E. S., during her natural life, and upon her decease he gave, devised and bequeathed the same to the children of his nephew Greo. A. S., living at the time of her death, share and share alike. He subsequently directed his executor to apply and pay over the income of the other equal undivided half part of his estate, held in trust by them, to his adopted son and nephew, Geo. A. S., daring his natural life, and upon his decease he gave the same to the children of the said Geo. A. S., living at the time of his death, share and share alike. Both life tenants were living at the testa- tor's death and both died in January, 1893. At the testator's death there were living four children of Geo. A. S., who still survived and who took into their possession the remainders upon the termination of the trust. Construction : The four children of Geo. A. S. took vested interests in the residuary property, both real and personal, at the death of the testator, subject, on one hand, to open and let in afterborn children, and on the other, to be defeated by death without issue during the running of the life estute. Matter of Seaman, 147 K Y. 69. Citing, Campbell v. Stokes, 142 N. Y. 33. See Matter of Baer, 147 N. Y. 348. Prom opinion. — " The case cited related to real estate, but except as to a suspen- sion of absolute ownership, limitations of future or contingent interests in personal property are subject to the same rules as those which relate to future estates in land. 1 R. S. 778, sec. 3. The respondent, nevertheless, relies upon the rule applying to bequests of personalty that, where time is of the essence of the gift, and there is no present gift, nothing passes until the prescribed period arrives. Warner v. Durant, 76 N. Y. 133 ; Smith v. Edwards, 88 id. 92. A reference to those cases and others which have followed them shows that the rule formulated was for the construction of bequests where there was no gift at all, except that involved in the direction to divide at a future time. Here there are words of present gift, for the phrase ' upon her decease,' like the expression ' from and after,' does not prevent the legacy from vesting. Nelson v. Russell, 135 N. Y. 137. Explicitly the will says, ' I give, de- vise and bequeath' the estates in remainder, and we are not compelled to resort to a direction to divide for an inference of an intention to give at all. I think the rule re- ferred to has no application to a case like the present, where there are explicit words of gift beyond a direction to divide. Upon that view of the will it Is obvious that a right of succession to the estates in remainder passed at once on the death of the testator to the four children and was a vested interest, although subject to be defeated or modified by subsequent contingen- II. FUTURE ESTATES. 293 17. VESTED ESTATES-CASES. 10. ESTATES GIVEN TO A CLASS. The provisions of a will, by which real property is given to "the heirs of the body of A., whom she shall leave her surviving,'' give to the devisees, during the lifetime of A., a vested remainder in fee, liable to open and let in afterborn children, and liable, also, to be defeated by the death of any devisee before the decease of A. Chism V. Edth, 1 Hun, 589. Where a will contains a bequest to several children, and they become vested with the property upon the death of the testator, such children take distributi vely and not as a class, unless a contrary intent appears in the will. Matter of Merriman, 91 Hun, 120. Citing, Goebel v. Wolf, 113 N. T. 405 ; Bowditch v. Ayrault, 138 id. 233 ; Matter of Seebeck, 140 id. 341 ; Matter of Tienken, ISl'id. 391 ; Matter of Young, 145 id. 535-9 ; Stevenson v. Lesley, 70 id. 513. In an action brought for the partition of certain lands devised by Philip P. Harter, it appeared that he left a will, by the fifth clause of which he devised certain lands to his son, George H. W. Harter, for the term of his natural life "if he dies without leaving children, and then to be equally divided among my grandchildren, including the children of my adopted daughter, Jane Bedell, share and share alike, but if the said George H. W. should leave a child or children then to be his and theirs forever, subject to the conditions hereinafter mentioned." The testator died in July, 1876, and his son George died without issue in May, 1894, and in the intermediate period two of the testator's grandchildren died intestate, unmarried and without issue. The question was whether these two grandchildren took a vested interest at the death of the testator. Construction : The will should be so construed as if possible to avoid the disinheritance of the Temaindermen who had died before the termination of the precedent estate. The testator intended to keep the property in the line of his blood, and that the light to the estate vested in the grandchildren upon the death of the testator, while possession was postponed until the death of George H. W. Harter without issue. The persons to whom the remainder was limited were ascertained, the event upon which the remainder would go into effect was certain, and the remainder, therefore, was vested. The words of the will, "then to be equally divided among my grandchildren," were used merely to indicate the time when the right of possession should begin, namely, at the close of the antecedent life estate. Sage v. Sage, 3 App. Div. 38. Where a direction in a will that $1,000 be placed at interest and the interest be paid toS. during his life and at his death the principal sum to his children, the living chil- dren took vested interests in that bequest subject to be divested, etc. Titus v. Weeks, 57 Barb. 136. Where the sister of the testator, at the time of the making of his will and at his death had but one child, and he devised the residue of his real and personal estate to such sister, to hold the same to her and her children forever, with a devise over, in case she should die, and all her children should die, leaving no children ; under the Revised Statutes, the sister took an estate for life in the property, and the child took a vested remainder in fee, subject to open and let in afterborn children ; and the limitation over after the death of all the children of the sister without issue was void, being too remote as to the afterborn children. Barman v. Osborn, 4 Paige, 336. Where an act of the legislature directed the proceeds of certain bank stock to be paid to the oldest son of B. who should be living at the death of L., and at the pas- sage of that act, in 1831, B. had two sons living, both of whom survived L., the eldest 294 X. ESTATES IN EXPECTANCY. 17. VESTED ESTATES-CASES. 10. ESTATES GIVEN TO A CLASS. son of B. at the time of the sale had a vested interest in the proceeds of the stock in the nature of a vested remainder, subject to be divested by his death during the life of L. Lawrence v. Bayard, 7 Paige, 70. When the person to whom a remainder after a life estate is limited is ascertained and the event upon which it is to take effect is certain to happen, it is a vested re- mainder, although by its terms it may be entirely defeated by the death of such per- son before the determination of the particular estate. It is the uncertainty of the right of enjoyment which renders a remainder contin- gent, not the uncertainty of its actual enjoyment. The present capacity of taking effect in possession, if the possession were to become vacant, distinguishes a vested from a contingent remainder, not the certainty that the possession ever will become vacant while the remainder continues. A testatrix devised real estate to three trustees in fee, in trust to receive the rents, issues and profits thereof and pay the same to her grandson during his natural life, and from and after his death in further trust to convey the same to his lawful issue living at his death in fee ; and if he should not leave any lawful issue at the time of his death, then in further trust to convey the same to another grandson of the testa- trix in fee, or to such person in fee as he might by will appoint, if he died prior to the tenant for life. The children of the tenant for life (all of whom were born after the death of the testatrix) took vested equitable remainders in fee in the real estate as they were born respectively, which remainders were liable to be divested as to each on his or her dying during the lifetime of their father, and were subject to open and let in the afterborn children of the tenant for life. Under such a devise, no conveyance of the legal title by the trustees is now neces- sary in order to vest the whole estate in the children at the determination of the par- ticular estate. Williamson v. Meld's Exrg., 2 Sandf. Ch. 586. Where a testator devised to each of his six children an equal undivided sixth part of his real estate for life, and after the decease of each child devised the same to the children of such child and to their heirs and assigns forever, the devise in remainder was not to such of the testator's grandchildren as should survive their parents, but one-sixth of the estate in remainder was given to all the children of each child of the testator, as to a class ; each grandchild, the moment it came into existence, took a vested interest in the remainder, in fee, subject to open and let in afterborn children; and such of them as died leaving issue, transmitted that interest by descent to his or her issue, even in the lifetime of the tenant for life, as a vested remainder in fee. But the parent from whose side the estate came was the heir at law of such of the grand- children of the testator as had died without issue, after the death of the testator, and in the lifetime of such parent. Carpenter v. Schermerhorn, 2 Barb. Ch, 314. P. devised lands to his daughter C, "during the term of her life, and immediately after her death, unto and among all and every such child and children as the said 0. shall have lawfully begotten at the time of her death, in fee simple, equally to be divided between them, share and share alike." Construction: The four children of C, who were living at the time of the devise, and at the death of the testator, took a vested remainder in fee, and in case there had been any chil- dren born afterwards, the estate w ould have opened for their benefit ; and the chil- dren of a daughter of C, who died in the lifetime of her mother, were therefore, en- titled to the share of C, who was living at the death of the testator. Doe v. Provoost^ 4 Johns. 61. II. FUTURE ESTATES. 295 17. VESTED ESTATES-CASES. 10. ESTATES GIVEN TO A CLASS. Gift by win of the use of one-half of testator's property to A. for life, residue to B. at his majority. If B. died without issue, devise over to testator's brothers and sis- ters. If B.'s death occurred before A.'s, A. was to have the use of three-fourths of the premises for life, remainder to the brothers and sisters of the testator. Construction: B. took a vested fee subject to the life estate and subject to be divested by his death in the event named ; also the brothers and sisters of the testator took a contingent re- mainder. Adams v. Backer, 28 St. Rep. 910. 11. ESTATES DEPENDENT UPON SURVIVORSHIP. Gibson v. Walker, 30 N. Y. 476; Embury v. Sheldon, 68 id. 337; Miller v. McBlain, 98 id. 517; Kane v. Gott, 24 Wend. 641; Moore v. Lyons, 25 id. 119. See Weed v. Aldrich, 3 Hun, 531. Devise in 1810 to trustees in fee for the use of the testator's married daughter, her heirs and assigns forever, exempt from the control or debts of her husband. If such husband should die before his wife, then in trust to convey the legal estate to the latter in fee ; and in case the daughter should die before the testator, then in trust for the use of such children as she might leave at her decease, their heirs and assigns for- ever ; and if the said daughter should die childless then in trust for another son and daughter ; and in case of their deaths then for the right heirs of the testator forever. Construction : The contingency of the daughter's dying childless and the subsequent limitations refer to her death in the lifetime of the testator. The remainder in fee devised to the daughter, after the death of the mother, became indefeasible upon her surviving her father. Gfibson v. Walker, 20 N. Y. 476. Devise to. trustees to receive rents, issues, etc., during life of J., son, and pay same to J., A., D., and P., children of the testator. Devise upon death of J. as follows: one-fourth to J.'s children; one-fourth to A., D., and P. severally. In case A, D, or P. die leaving lawful issue surviving them, such issue shall take the share of principal and income given to the parent, and should no issue survive A, D., or P., so dying, the share of the one so dying should go per stirpes to the survivors of A, D., or P. and children of J., equally. Testator died in 1864 P. died before testator without issue ; D. died in 1869, leaving son born in 1867, who died in 1873, and wife, plaiatiflE, to whom he devised his estate. Construction : D. took a vested remainder on death of testator, subject to trust for life of J., inasmuch as the provision for the issue of A, D., or P. taking 296 X ESTATES IN EXPECTANCY. 17. VESTED ESTATES-CASES. 11. ESTATES DEPENDENT UPON SURVIVORSHIP. in case either died, referred to such person dying before the testator. Embury v. Sheldon, 68 N. Y. 227. Citing, Moore v. Lyons, 35 Wend. 119. See Gilman v. Reddington, 34 N. Y. 9; Oxley V. Lane, 35 id. 340. D., by his will, gave his estate, real and personal, to his wife during her life, and directed that after her death the residue should be divided into twelve parts, one of which he gave " absolutely and wholly," to each of his twelve children. In case any of his children died without issue, he directed that " his, her, or their part or parts * * * shall be divided betweea the survivors or their heirs, in equal portions." Construction : The words of survivorship related to the expiration of the life estate, and the period of distribution ; each child then living took one share absolutely; and so, the title thereto was not divested by a subsequent death of the beneficiary without issue. AJilkr v. McBlain, 98 IST. Y. 517, Wliere a will was made directing real estate to be sold, tlie proceeds to be invested, and the income to be applied to the support of two nieces until thoy arrived at the age of twenty or married, and then the income to be paid to them in equal proportions during their respective lives; on the death of one without issue, the whole income to be paid to the survivor; on the death of both leaving issue, the whole trust fund to go to such issue; one moiety to the children of each, and on the death of the nieces without issue, the property to go to the mother of the testator; the nieces took immediate vested interest in their respective moieties of the income of the estate during their lives, with a remainder to the survivor for life in the moiety of the other dying without issue; and on the death of both leaving issue, the fund went to their children. Kane v. Qott, 24 Wend. 641. In a devise of real estate to one for life, and from and after his death to three others or to the survivors or survivor of them, their or his heirs and assigns forever, the remaindermen to take a vested interest at the death of the testator, and conse- quently, though at the time of the decease of the tenant for life there be but one of the remaindermen surviving, he takes only one-third of the estate, and the heirs at law of the two others take the residue. The words of survivorship refer to the testa- tor, and not to the death of the tenant for life, unless from other parts of the will it be manifest that the intent of the testator was otherwise. Mooi'e v. Lyons, 35 Wend. 119. Testator left estate to trustees to devote income to mother and two sons, and "from and after the death of my mother I do give, etc., unto my sons.'' An infant son died before mother and brother. Held, he had vested estate which passed by succession to his heirs. Cronin's Estate, Mynch's Probate, Cal., 353. See, also, Little's Appeal, 9 Cent. 309 ; 117 Pa. 14 ; Lombard v. Willis, 6 N. Eng. 818; 147 Mass. 13. Legacy payable after the death of wife in case legatee is living or has left issue, is vested, etc. Churchman's Appeal, 11 Cent. 640 ; Fitzhugh v. Townsend, 59 Mich. 437. When remainder is to children "then surviving," i. e., at first taker's death, children of those dying previous to that event take nothing. Roundtree v. Roundtree, 36 S. C. 450. II. FUTURE ESTATES. 297 17. VESTED ESTATES— CASES. 11. ESTATES DEPENDENT TJPON SUEVIVOUSHIP. To same effect, see Shanks v. Mills, 35 S. C. 358 ; Walther v. Regnault, 56 Hun, S60 ; Matter of Ogilsbie, 30 N. Y. S. R. 459 ; Re Hedger's Estate, 9 N. Y. Supp. 347; Matter of Post's Estate, Surr. Ct. 30 N. Y. S. R. 317. Contra, Anthony v. Anthony, 5 N. Eng. 41 ; 55 Conn. 256 ; Seemingly contra, "Willett V. Rutter, 84 Ky, 817. But, see, as opposed to last case, Goebel v. "Wolf, 113 N. Y. 405, and Owens v. Dunn, 85 Tenn. 131. But when children who will take are uncertain, the estate does not Test. Bates v. GlUet, 132 111. 287; see, Goldtree v. Thompson, 79 Cal. 613; Cusack V. Tweedy, 56 Hun, 617, afl'd 136 N. Y. 81. Devise for life to widow, remainder to his children "now living, or who may be at the time of her decease," vests in those children living at testator's death. Rood v. Hovey, 50 Mich. 395 ; compare Porter v. Porter, id. 456. Re Paton, 41 Hun, 498. 12. BASE FEB DETERMINABLE UPON DYING UNDER A CERTAIN AGE, OR DYING DURING LIFE ESTATE, AND REMAINDER LIMITED THEREON. Gilman v. Reddington, 34 N. Y. 9 ; Moore v. Littel, 41 id. 66 ; Sheridan v. House, 4 Abb. Ct. App. 318 ; Maurice v. Graham, 8 Paige, 483 ; "Waldron v. Gianini, 6 Hill, 601. Devise and bequest of residue of estate to executors in trust to man- age and apply the same, or the income thereof, or so much of the estate or income as they should see fit in the exercise of a sound discretion, to the education and support of A.'s (testator's) infant children, or such of them as should survive, or of the issue of any who might die, until the two youngest should attain the age of thirty years, or die under that age ; at which time the trust estate should "be paid, conveyed or made over" to such of said three children as should then survive, or to the then living issue of any then dead, of the parent's share ; if all children at time of distribution be dead, estate should go to A.'s widow and others. Youngest child died two years after testator. Construction : (1) Trustees took title. (2) At death of testator there vested in the three children a base or qualified fee determinable as to each on dying without issue before arriving at the age of thirty years, at which time it would become abso- lute, and the estate would become an estate in possession. (3) The widow and others took substituted remainder contingent on death of all children under age of thirty without leaving issue. Oilman V. Reddington, 24 N. Y. 9. See O.xley v. Lane, 35 N. Y. 340 ; Manioc v. Manice, 43 id. 378 ; Crooke v. Co. of Kings, 97 id. 449 ; Van Home v. Campbell, 100 id. 325 ; Matter of N. Y., L. & W. R. Co., 105 id. 89. Since the abrogation of the rule in Shelley's case, and the enactments in the Kevised Statutes of New York, a grant "to A. for life, and after 38 298 X ESTATES IN EXPECTANCY. 17 VESTED ESTATES-CASES. 13. BASE PEE DETERMINABLE TPON DYING UNDER A CERTAIN AGE, OR DYINtt DURING LIFE ESTATE, AND REMAINDER LIMITED THEREON. his death to his heirs and their assigns forever," gives to the children Df the latter a vested interest in the land ; although liable to open and let in afterborn children of A., and liable also (in respect of the interest of any child) to be wholly defeated by his death before his father. Such an interest, whether vested or contingent, is alienable during the life of A. (the tenant for life), and passes by deed or mortgage, subject only to open or be defeated in like manner as before. Moore v. Littel, 41 N. Y. 66 ; see 40 Barb. 488 ; 52 id. 9. See Rooms v. Phillips, 24 N. Y. 463 ; Jacksou v. Jackson, 50 id. 660 ; Livingston V. Greene, id. 118 (123); Jackson v. Littell, 56 id. 108 (111); Smith v. Scholtz, 68 id. 41 (61); House V. McCormack, 57 id. 310 (315); Byrnes v. Stilwell, 103 id. 453 (461); Surdam v. Cornell, 116 id. 305 (309); Campbell v. Stokes, 142 id. 23 (30); Radley V. Kuhn, 97 id. 26 (35). The uncertainty which makes a remainder contingent is the uncer- tainty as to who will take at any given time, if the precedent estate should then terminate. If there are persons in being who would be entitled to take if the precedent estate should presently determine, their interest is a vested future estate, under the Eevised Statutes, notwith- standing that it may be liable to be defeated — e. g., by the death of such a person, before the precedent estate actually determines. Under a deed of lands to A. for life, and after his death, then to his heirs and assigns forever, the children of A., during his life, have a vested future estate in remainder, which is not made contingent by the fact that it is liable to be defeated or modified by death of any of them, or the birth of other children, during his life. Sheridan v. House, 4 Abb. Ct. App. 218. A testator by his will provided as follows : " I give to my daughter Fanny M. Peaslee twenty thousand dollars in money or its equivalent in stocks, as my executor may decide, and twenty thousand dollars in trust, the same to revert at her death, if without issue, equally to my wife and my son." In accordance with the judgment rendered in an action brought for the purpose of ascertaining the duty of the executor of such will in relation to the trust fund, the executor paid over the $20,000 to Fanny M. Peaslee, and she was directed by said judgment to safely and securely invest and hold the same for those entitled to the principal sum at her death ; the judgment did not require her to give security, nor was any given. She invested the money in stocks and bonds, and prior to the summer of 1880 lost the entire amount. Shortly thereafter she informed her mother and her brother of the loss, but no action was taken by either of them until the year 1892, when a pro- ceeding was instituted to compel a restitution of or security for the fund, in wliich it appeared that the testator's widow, who had subsequently died, had in her lifetime released her interest in the fund to her daughter. Held, that the intent of the testator was to effectually dispose of this fund, and that II. FUTURE ESTATES. 299 17. VESTED ESTATES— CASES. 13. BASE FEE DETERMINABLE UPON DYING UNDER A CERTAIN AGE, OB DYING DOBING LIPB ESTATE, AND REMAINDER LIMITED THEREON. Fanny M. Peaslee obtained a vested interest therein -wliicli would survive lier and go to her issue, if any, and that upon her death without issue it would go to the wife and son of the testator if living, and in the event of the death of either of them the one-half in which the one so dying had a contingent interest would become the absolute property of the daughter. That one-half of the fund became the absolute property of Fanny M. Peaslee upon the death of her mother, and that her mother's executors were not entitled to security therefor. That the son of the testator was entitled to security for the other half of the fund. That the nbn-interference of the cestui que tru^t, Edward, before his interest came into possession, did not constitute an assent on his part to the breach of the trust, nor did his knowledge of such breach and his inaction set the statute of limitations run- ning. Hitohcock V. Peaslee, 89 Hun, 50. Where the testator, subsequent to the adoption of the Revised Statutes, devised a house and lot to J. and E. and their heirs and assigns forever, provided they both attain the age of twenty-one, and to the survivor if only one of them attained that age, and further directed that if they both die leaving no child or children, the house and lot should go to L. and her heirs and assigns forever ; J. and E. took determin- able estates in fee in their respective moieties of the house and lot, subject to be di- vested in favor of the survivor if either died under age, and subject to be determined in favor of L. in case J. and E. should both die without leaving issue, before or after they attained the age of twenty-one. Such contingent limitations over of the house and lot were both valid, under the provisions of the Revised Statutes. Maurice v. Graham, 8 Paige, 483. F., dying in 1798, devised a farm to his son Medcef, his heirs and assigns forever, and another farm to his son Joseph in like manner. The will contained this clause : 'It is my will, and I do order and appoint that if either of my sons should depart this life without lawful issue, his share or part shall go to the survivor." In 1801, the sheriff sold all the estate which Medcef then had in his share, by virtue of a fi. fa. against him ; and Joseph died in 1813, leaving Medcef surviving. The estate devised to Medcef was a base, qualified and determinable fee, which became a fee simple on the death of Joseph, and belonged to W. Waldron v. Oianini, 6 Hill, 601. 13. WHERE A LIFE ESTATE IS GIVEN WITH A REMAINDER TO TAKE EFFECT .4.T, AFTER, UPON OR FROM THE DEATH OR MARRIAGE OF THE FIRST TAKER, THE REMAINDER VESTS AT THE DEATH OF THE TESTATOR. Scott V. Guernsey, 48 N. T. 106 ; Livingston v. Greene, 52 id. 118 ; Smith v. Van Ostrand, 64 id. 278 ; Ackerman v. Gorton, 67 id. 63 ; Monarque v. Monarque, 80 id, 320; Williams v. Freeman, 98 id. 577 ; Van Axte v. Fisher, 117 id. 401 ; Nelson v. Russell, 185 id. 137 ; Miller v. Gilbert, 144 id. 68; Matter of Collins, id. 593; Mat- ter of Young, 145 id. 535 ; Crosby v. Wendell, 6 Paige, 548 ; Barker v. Woods, 1 Sandf. Ch. 129. See Bedell v. Guyon, 13 Hun, 396; Matter of Bogart, 28 id. 466; Van Camp v. Fowler, 59 id. 811; Balen v. Jacquelin, 67 id. 311. The will of S., after a devise of certain premises to his daughter, P. Gr., during her life, contained the following clause: Then to be equally divided amongst her now surviving children, or any of them that may be 300 S. ESTATES IN EXPECTANCY. 37. VESTED ESTATES-GASES. 13. WHERE A LIFE ESTATE IS GIVEN WITH A KEMAINDBR TO TAKE EFFECT AT, AFTER, UPON OR FROM THE DEATH OR MARRIAGE OF THE FIRST TAKER, THE REMAINDER TESTS AT THE DEATH OF THE TESTATOR. alive at her decease, or the heirs of any that may be dead at the time of executing this my last will." The time referred to was the time the will took effect, by vesting the estate in possession upon the death of P. G. Scott v. Guernsey, 48 N. Y. 106. See, Provoost v. Calyer, 63 N. T. 545; Matter of Brown, 93 id. 399; Byrues v. Stil- ■well, 103 id. 453 ; Matter of Truslow, 140 id. 599 (605); Matter of Palon, 111 id. 480 ; Matter of Logan, 131 id. 456. Life estate to wife in real estate and then " from and after the decease and death of my wife, I give and bequeath all my real estate to all my children and to their heirs and assigns to be equally divided, share and share alike ; and should any of my children die and leave lawful heirs, such heirs to receive the parent's portion. By a subsequent clause the testator declared that upon the death of his wife and a division of the estate, as provided among his children, their shares should be an estate in fee, and they were empowered to convey, etc. Wife and eleven children survived testator. Three subsequently died intestate and without issue. A son then died without issue, de- vising his interest in the real estate ; thereafter testator's widow died. Construction: 1. The last clause referred to an absolute fee, of which a conveyance could only be made by the children after the death of the widow. 2. The words "after" and "upon the death of my wife" did not make a contingency, but simply indicated when the estate of children took effect in possession. 3. Children took vested remainder, not defeated by their death prior to the widow. Livingston v. Greene, 52 N. Y. 118. Distinguishing Moore v. Littel, 41 N. Y. 66. The will of S. bequeathed to his wife the sum of $1,650, in lieu of dower, for her support during her natural life or so long as she should remain his widow, then "her said dower," to be transferred to testator's three children, fifty dollars of said sum to be paid to the widow as soon as practicable after the testator's decease, and the residue in about six; months thereafter. The bequest gave to the widow of S. the use of the $1,650 during her life or widowhood, with power to apply so much of the principal as might be necessary for her support, but with no further power of disposition ; and, subject to the exercise of this power, gave a remainder in the principal to the children ; remainder was not repug- II. FUTURE ESTATES. 301 17. VESTED ESTATES-CASES. 13. -WHERE A LIFE ESTATE IS GIVEN WITH A KEMAINDER TO TAKE EFFECT AT, AFTER, UPON OR FROM THE DEATH OR MARRIAGE OF THE FIRST TAKER, THE REMAINDER VESTS AT THE DEATH OF THE TESTATOR. nant to the prior gift and was valid ; and upon the death of the widow, the children were entitled to so much of the fund as remained undis- posed of for her support Smith v. Van Ostrand, 64 N. Y. 278. . Devise to wife, B., of real estate " tobe used by her during her natural life, and from and immediately after her decease * * * to be divided equally among " his children. By codicil authority to wife to sell and convey his real estate, subject to approval of all his heirs sur- viving at the time of such sale. The widow, with consent of surviving heirs, sold real estate, but prior thereto judgment had been entered and docketed against one of the children. Oonstructioii : Children took vested remainder in lands subject to execution of power by wife. The wife's life estate was not enlarged into a fee by power of sale. 1 R S. 732, sec. 81. The parties took the same interest in the proceeds of sale as in the land. The lien of the judgment was subject to power of sale and was by the sale transferred to the proceeds. Ackerman v. Oorion, 67 N. Y. 63, rev'g 6 Huu, 301. Note. — Words "from and immediately after her death" did not operate to post- pone the vesting of the remainder in the children until the death of the life tenant, but by well settled construction denoted simply the period when they would become entitled to the estate in possession (66). Livingston v. Greene, 53 N. Y. 118; Taggart v. Murray, 53 id. 233. Devise (1) to B., widow, for her life ; (2) gift of income of estate to four daughters " to be divided between them share and share alike, dar- ing each of their respective lives, remainder to their respective children," their heirs, etc. Construction : (1) Life estate to B. (2) Life estate in an undivided one-quarter to each daughter. (3) Estates in an undivided one-quarter of the property vested at tes- tator's death in fee in the children of daughters, subject to open and let in afterborn children. 2 Jones on Wills, 15 ; 2 Wash, on Real Prop. ; 802 X ESTATES IN EXPECTANCY. 17. VESTED ESTATES-CASES. 13. WHERE A LIFE ESTATE IS GIVEN WITH A REMAINDER TO TA^ EFFECT AT, AFTER, UPON OR FROM THE DEATH OR MARRIAGE OF THE FIRST TAKER, THE REMAINDER VESTS AT THE DEATH OF THE TESTATOR. Savage v. Bumliam, 17 K Y. 561; Bveritt v. Everitt, 29 id. 89; Stevensou v. Lesley, 70 id. 512. (4) The power of alienatioa was suspended only for the lives of B., and as to each one-quarter for life of one daughter. (5) A gift of income is equivalent to the devise of a life estate. Monarque v. Monarque, 80 K Y. 320, rev'g 19 Hun, 332. Citing, Kerry v. Devrick, 8 Co. 95b ; Cro. Jac. 104; Earl v. Grim, 1 Johns. Ch. 494 ; Scliermerliorii v. Schermerhorn, 6 Johns. 70 ; 3 Wash, on Real Prop. 450. The will gave to the executors $4,000 to be held in trust, the income to be paid to a sister of the testator during her life, and upon her death the principal to go into tlie residuary estate ; also $25,000 to be held in trust for the benefit of the testator's wife, " during her natural life or widowhood," and "at her decease or re-marriage," the principal to re- vert to his estata Construction : The beneficiaries entitled to the residuary estate took vested estates in remainder in said trust funds. Williams v. Freeman, 98 N. Y. 577 ; s. c, 83 id. 561. The will of F. gave his residuary estate to his executor, in trust, with power to sell and invest the proceeds, to pay the interest and in- come to D. during life, and to appropriate so much of the principal as should be necessary to the proper maintenance of D.; the balance the testator gave to J. " upon the death of " D. J. died before D., intestate, and leaving children. Construction : Under the will J. took, upon the death of the testator, a vested re- mainder (1 E. S. 723, sees. 10, 13), subject to the exercise of the power of sale, and upon the death of J. his interest descended to his issue. Van Axle v. Fisher, 117 K Y. 401. Note. — " The mention of the brother J., by name, without allusion to his heirs, is not material. The fee would pass without them. Hennessy v. Patterson, 85 N. Y. 101. A discretionary power in the executor to appropriate the estate itself to the sup- port of the objects of the trust was considered by Judge Comstock, in Gilman v. Reddington, 34 N. Y. 9, to be no objection to the trust. Nor could it logically be an objection to the vesting in interest of the right to the corpus of the estate upon the cessation of the trust." The words " from and after" used in a testamentary gift of a remain- der, following a life estate, do not afford sufficient ground in themselves II. FUTURE ESTATES. 303 17. VESTED ESTATES— CASES. 13. "WHERE A LIFE ESTATE IS GIVEN WITH REMAINDER TO TAKE EFFECT AT, AFTER, UPON OR FROM THE DEATH OR MARRIAGE OR THE FIRST TAKER, THE REMAINDER VESTS AT THE DEATH OF THE TESTATOR. for adjudging that the remainder is contingent and not vested, and un- less their meaning is enlarged by the context, they are to be regarded as defining the time of enjoyment simply and not of the vesting of title. Moore v. Lyons, 25 Wend. 118 ; Livingston v. Greene, 52 N. Y. 118 ; Rose V. Hill, 3 Burr. 1882 ; Doe v. Prigg, 8 B. & 0. 231. The presumption is that a testator intends that his ■ disposition shall take effect in enjoyment or interest at the date of his death, and, upon the happening of that event, unless the language of the will by fair construction makes his gifts contingent, they will be regarded as vested. Words of survivorship and gifts over on the death of the primary beneficiary are to be construed, unless a contrary intention appears, as relating to the death of the testator. Vanderzee v. Slingerland, 103 K Y. 55 : Matter of N. Y., L. E. & W. R Co., 105 id. 92. Vendee sought to be relieved from the performance of a contract for the purchase of real estate. B., who died seized of the premises, by his will, devised them to his two daughters for life, and " from and after " their decease to two grandchildren named and their heirs, the heirs of a deceased grandchild to take the share " that parent would have taken if living." One of the daughters died prior to the execution of the contract which was made by the other daughter, and the two grand- children who executed a deed to plaintiff in accordance with the con- tract which he refused to accept. Construction : The two grandchildren having survived the testator, took upon his death a vested remainder in fee in the premises ; the provision for their issue was by way of substitution in case of the death of the parent dur- ing the life of the testator; and therefore, the vendor's deed conveyed a good title. Nelson v. Russell, 135 N. Y. 137 ; rev'g 61 Hun, 528. The holographic will of Gr., an illiterate person, contained a provision by which he gave to his wife '' a free and uncontrollable use and occu- pancy" of certain houses and lots as long as she continued bis widow. If she ceased to be such by death, then the premises were directed to be sold and the proceeds equally divided among the testator's four children named " or their heirs." If the widow ceased to be such by marriage then the premises were directed to be sold and one-half of the proceeds to be hers, " to be used for her comfort and support so long as she shall live, and then it shall revert back " to said children, the other 304 X. ESTATES Ilf EXPECTANCY. 17. VESTED ESTATES-CASES. 13. WHERE A LIFE ESTATE IS GIVEN WITH REMAINDER TO TAKE EFFECT AT, AFTER, UPON OR FROM THE DEATH OR MARRIAGE OF THE FIRST TAKER, THE REMAINDER TESTS AT THE DEATH OF THE TESTATOR. half to be equally divided among them "as aforesaid." la aa actioa for partition of the premises brought after the death of the widow it appeared that the children named survived the testator ; two of them died before their mother. Construction : There was no equitable conversion, but the fee of the premises vested upon the testator's death in the four children ; the direction to sell and divide could not be regarded as a gift, but simply as a suggested mode of division in lieu of legal proceedings. Milkr v. Gilbert, 144 N. Y. 68, aff'g 3 Misc. Eep. 43. Citing, Matter of Tienken, 131 N. Y. 391. Note. — It has been often held that if futurity is annexed to the substance of the gift the vesting is suspended; but where the gift is absolute and the time of payment only is postponed the gift is not suspended but vests at once. Smith v, Edwards, 88 N. Y. 103. (737.) The court might well substitute "and" for "or." Roome v. Phillips, 24 N. Y. 463; Jackson v. Blanshan, 6 Johns. 56. The will of 0. gave to his wife the use and income of his residuary estate during her widowhood ; in case she remarried she was given the- use of a house and lot specified during life and an annuity of fifty dol- lars, the residue of the income to be divided between the testator's children until the youngest arrived of age. At that time, if the widow had remarried, all of the estate, except said house and lot, and the amount set apart to raise the annuity, the will directed, should be di- vided between the children. At the death of the widow, it was directed that the house and lot should be sold by the executors and the proceeds divided among the testator's "descendants." No trust was created by the will, but purely legal estates were de- vised, which vested in the devisees at once upon the death of the testa- tor. Matter of Oollins, 144 F. Y. 522, aflE'g 70 Hun, 273. H., by his will, gave to his wife the use of his dwelling-house until his farm should be sold. It directed a sale of the farm as soon after his decease as it could be done without undue sacrifice, and a reserva- tion out of the proceeds of the sale of $4,000 for the use of his wife during life, the same after her decease to be divided among his three children. The testator then gave to his children, within one year after the aforesaid sale of real estate and the reservation for the use of the wife, the whole of the balanc^ of his property. Debts owing by the II. FUTURE ESTATES. 805 17. VESTED ESTATES-CASES. 13. WHERE A LIFE ESTATE IS GIVEN WITH A REMAINDER TO TAKE EFFECT AT, AFTER, UPON OR FROM THE DEATH OR MARRIAGE OF THE FIRST TAKER, THE REMAINDER VESTS AT THE DEATH OP THE TESTATOR. childrea were referred to as a part of their inheritance. One of the children died during the lifetime of the widow. Action for the con- struction of the will. Construction : The intent of the testator was to give to the children all of his estate except that given to the wife, and so it covered the trust fund as a re- mainder ; at Ms death the title vested in the three children, and the share of the one who died passed upon her death to her representatives. Matter of Young, 145 K Y. 535 ; aflE'g 78 Hun, 521. Where a testator declared it to be his will that his wife should continue to reside with his children in his dwelling house and retain in her possession the plate, furni- ture, etc., during her widowhood, if his children should continue to live with her; and in case of her remarriage, and his children should not continue to live with her, that she should deliver the plate, furniture, etc., to his executors for the use of his children; and that the executors should receive the rents and income of his estate until the' youngest child should attain the age of fourteen, and should apply so much thereof as should be necessary for the support of his minor children; and that from and im- mediately after the youngest child attained the age of fourteen years, if his wife should then have married, he devised the dwelling house to his son Philip in fee; and de- vised all the residue of his estate to his children as tenants in common; the wife took an estate in the dwelling house to continue after the youngest child arrived at the age of fourteen if she then remained unmarried and the children lived with her; and Philip took a vested remainder in fee in the dwelling house after the youngest child became fourteen, to commence in possession so soon thereafter as the wife's estate should have terminated, by her marriage or otherwise; and such remainder to him was not intended by the testator to be limited upon the contingency of the widow's having married a second time before the youngest child arrived at the age of fourteen. Groaby v. Wendell, 6 Paige, 548. A testator directed his executors to invest a fund, the interest of which he gave to his wife, and after her decease, he gave the principal to his two children equally. The children took vested interests in the legacy at the death of the testator. Barker V. Woods, 1 Sandf. Ch. 129. Devise to sister "during her natural life and at her death to go and vest in her chil- dren in fee simple " gives all children a vested estate at testatrix's death ; Tlppin v. Coleman, 59 Miss. 641. See, also, Davidson v. Koehler, 76 Ind. 398; Landers v. Bartle, 29 Hun, N. Y., 170; Re Brown, id. 412; McKee's Appeal, 96 Pa. St. 377; Grayson V. Tyler, 80 Ky. 358; Smith v. West, 103 111. 333. 14. REMAINDER MAY BE LIMITED TO BBNBFICIAErES OF A TRUST TO TAKE EFFECT IN POSSESSION UPON ITS TERMINATION, VESTING IN INTEREST AT THE DEATH OF THE TESTATOR. Stevenson v. Lesley, 70 N. Y. 512; Provoost v. Provoost, id. 141. Remainder may be limited to beneficiaries of a trust to take effect in 39 306 X ESTATES IN EXPECTANCY. 17. VESTED ESTATES-CASES. 14. EBMAINDER MAT BB LIMITED TO BENEFICIARIBS OF A TRUST TO TAKBi EFFECT IN POSSESSION UPON ITS TERMINATION, VESTING IN INTEREST AT THE DEATH OF THE TESTATOR. possession upon its termination and vesting in interest at death of the testator. Stevenson v. Lesley, 70 K' Y. 512, digested p. 285 See, Embury v. Sheldon, 68 N. T. 227; Oilman v. Reddington. 34 id. 10; Provoost V. Provoost, 70 id. 141. Testator, in case he leave a surviving child not of full age, devised all his real estate to trustees, in trust, to pay the net income from the rents and profits to widow, until all of his living children should be of full age ; and then directed that trusts should cease, and devised to widow a life estate in certain premises, remainder to son D. and made other specific devises. Construction : The trust was for the life of the widow and terminable in any event at her death, and subject to be terminated by the arrival of children to full age during the widow's life, and was valid. The devises took effect at testator's death, subject to the life estate. No division of the property was necessary, as this was accomplished by the will. The words " upon the arrival of all my children at full age " did not change this. Provoost v. Provoost, 70 N. Y. 141, afl'g 7 Hun, 81. 15. A VESTED ESTATE IS NOT DIVESTED BY SENTENCE FOR IMPRISONMENT FOR LIFE. Avery v. Everitt, 110 N. T. 317. The will of S. devised his real estate to his wife for life, if she re- mained unmarried, and upon her decease or marriage to C ; in the case of the death of the latter without children, the remainder to go to A. The wife of the testator survived him, and after her death, C, who, at the time was unmarried and without children, was convicted of murder in the second degree and sentenced to imprisonment in a state's j^rison for life. Action of ejectment wherein plaintiff claimed under A., brought while C. was living. Construction : The title of C. to the real estate devised was not divested as a conse- quence of his sentence, and A., or his grantee, had no present vested in- terest upon which to maintain ejectment. Assuming a civil death consequent upon such a sentence, operates, eo instanti, to divest a person sentenced, of his estate, whether such a death II. PUTUBE ESTATES. 307 17. VESTED ESTATES-CASES. 15. A VESTED ESTATE IS NOT DI\':ESTED BT SENTENCE FOB IMPBISONMENT FOR LIFE. was contemplated by the testator, and the words of limitation to A. were to be construed as applying only to a natural death of C, qucBre. By the general rule of commoa law civil death did not operate as a divestiture of the estate of the convicted. Whatever may have been the effect of the provision of the act of 1799 (Laws of 1799, ch. 57), de- claring that where a person shall be convicted for felony and sentenced to imprisonment for life, such person shall be deemed to be " civilly dead to all intents and purposes in the law," when the language was changed by the provision of the Revised Statutes, 2 R. S. 701, sec. 20, re-enacted in Penal Code, sec. 708, enacting simply that a person sen- tenced to imprisonment for life " shall thereafter be deemed civilly dead " this was declaratory of and restored the rule of the common law. The statutory provisions regulating the transfer and devolution of prop- erty upon the death of the owner, refer simply to a natural, actual death. A resume of legislation and of judicial decisions in this state and in England upon the subject of property rights, as affected by civil death, given. Avery v. Everitt, 110 N. Y. 317, aff'g 36 Hun, 6. 16. AN ESTATE MAT VEST SUBJECT TO AN EXECUTION OF A POWER OF SALE OR PARTITION. Henderson v. Henderson, 113 N. Y. 1, 13; Eobert v. Corning, 89 id. 335; Scholle V. Scliolle, 113 id. 261; Persons v. Snook, 40 Barb. 144. Estate vested subject to execution of power to partition. Henderson V. Henderson, 113 N. Y. 1, 12, digested p. 636. Estates vested in lands of which conversion was authorized. Scholle V. Scholle, 113 K Y. 261, digested p. 938. Although the power of an executor to convey was suspended for the term of three years, the remainder subject to the execution of the power remained vested in the heirs at law. Persons v. Snook, 40 Barb. 14-±. See Robert v. Corning, 89 N. Y. 235. 17. A POWER OP APPOINTMENT DOES NOT PREVENT THE VESTING OP A FFTURB ESTATE. Real Property Law, sec. 31. Dana v. Murray, 132 N. Y. 604. 18. SHARE GIVEN ON CONDITION VESTS. Share vests although there is a condition precedent that in accepting share it shall be in full satisfaction of all claims against the estate, and although there is provision that if legatee contests will, share shall go elsewhere. Little's Appeal, 117 Pa. 14. See Conditions, p. 1079. Wben legacy vests, notwitlistanding condition. Fim Points House of Industry y. Amerman, 11 Hun, 161. 308 X ESTATES IN EXPECTANCY. IS. *CONTINGENT ESTATES-CASES. 1. BEMAmDBRS FAVORED EATHER THAN EXECUTORY DEVISES, AND VESTED RATHER THAN CONTINGENT ESTATES, p. 309. See Vested Estates, sub. 1. 3. ESTATES BY SURVIVORSHIP, p. 309. See Vested Estates, sub. 11; Death— Estates on Contingency of, p. 346. (a) wuen issue of one who, if living, would take as a survivor, do not take as survivors, p. 309. ^^>) Tenants in common creating toy parol estate by survivorship, p. 309. 3. ESTATES DEPENDENT UPON SURVIVING PREVIOUS TAKER OR BENEFICIARY, OR THE EXPIRATION OF A TRUST, p. 813. 4. ESTATES CONTINGENT UPON DEATH OF PREVIOUS TAKER UNMARRIED, VTITH- OUT ISSUE, OR WITHOUT LEAVING CHILDREN OR ISSUE, p. 317. See Vested Estates, sub. 7. (a) Aceeleration of remainders, p. 317. (to) Devise over on death of "legitimate heii's," means on death of chil- dren, p. 317. (c) Devise to A. for life, then to his issue. If any; if none over, if A. die with- out issue in testator's lifetime, contingent limitation takes effect, p. 317. 5. CONTINGENT LIMITATION IN FAVOR OF PERSONS NOT IN BEING, p. 325. 6. ESTATES TO A CLASS, AS TO CHILDREN, HEIRS OR ISSUE, p. 325. See Vested Estates, sub. 10; Gift to a Class, p. 283. 7. LIMITATION OVER TO ISSUE OP CHILD DYING BEFORE DISTRIBUTION, p. 329. See Vested Estates, sub. 5. 8. ESTATE VESTING AT TIME OF PAYMENT, DIVISION OR DISTRIBUTION, p. 330. See Vested Estates, subs. 4, 5. 9. DEVISE TO B. FOR LIFE, REMAINDER TO B.'S ELDEST SON VESTS IN B.'s ELD- EST SON AT HIS BIRTH, p. 333. See Vested Estates, sub. 6. 10. ESTATES ON CONTINGENCY OF PREVIOUS TAKER DYING UNDER A CERTAIN AGE, p. 334. See Vested Estates, sub. 12. (a) Estates contingent on taker arriving at a certain age, p, 334. 11. FEES LIMITED ON PEES, p. 335. See Vested Estates, sub. 12. 13. ALTERNATIVE LIMITATIONS, p. 336. 13. ESTATES LIMITED ON MORE THAN TWO SUCCESSIVE LIFE ESTATES, p, 336. 14. REMAINDER TO LIFE TENANT IN THE EVENT OF MARRIAGE AND ISSUE, p. 339. 15. ESTATES DEPENDENT UPON THE FIRST TAKER'S MARRIAGE, p. 339. See Vested Estates, sub. 13. 16. CONTINGENT REVERSIONS, p. 339. 17. CONTINGENT REMAINDERS TO BROTHERS AND BISTERS — WHEN HALF BLOOD DO NOT TAKE, p. 340. *Por Contingent Estates Suspending the Power of Alienation, see p. 368. II. FUTURE ESTATES. 809 18. CONTINGENT ESTATES-CASES. 18. LIMITATION OVER IN DEFAULT OP BXEECISE OF POWER OF DISPOSITION BY FIKST TAKEK, p. 340. See Vested Estates, subs. 16, 17. 19. CONTINGENT INTEUBSTS OP PERSONS, BENEFICIARIES IN PROPERTY HELD BY TRUSTEES UNDER AN EXPRESS TRUST — WHETHER NECESSARY PARTIES TO ACTION FOR FORECLOSURE, p. 341. 30. EXPECTANT CONTINGENT ESTATES ARE ALIENABLE AND DESCENDIBLE, p. 841. 31. ULTIMATE LIMITATION TAKING EFFECT, ALTHOUGH THE PRECISE EVENT PROVIDED FOR DOES NOT HAPPEN, p. 343. 88. ESTATES DEPENDENT UPON DISCRETIONARY ACTION OF TRUSTEES, p. 845. Hawley v. James, 5 Paige, 468. 33. WHEN WORD " THEN" REFERS TO THE HAPPENING OF THE CONTINGENCY, p. 845. 84. WHEN PROVISION, " AT THE DEATH OF MY WIPE, I GIVE AND DEVISH;" IN- TENDS VESTING AT WIFE'S DEATH, p. 345. See Vested Estates, sub. 13. 18. CONTINGENT ESTATES— CASES. 1. REMAINDERS FAVORED RATHER THAN EXECUTORY DEVISES, AND VESTED RATHER THAN CONTINGENT ESTATES. A limitation is never constrned into an executory devise when it may take effect as a remainder, nor as a contingent remainder when it can be taken to be vested. Manice v. Manice, 43 N. Y. 305, 368, digested p. 428. Wolfe V. Van Nostrand, 3 N. Y. 436, 443; Lott v. Wykoflf, id. 355; Thomson v. Hill, 87 Hun, 111; Johnson v. Valentine, 4 Sandf. 36. See Vested Estates, ante, p. 359. 3. ESTATES BY SURVIVORSHIP. See, also. Vested Estates, sub. 11 — Death— Estates on Contingency of, p. 846. (a) "When issue of one who, if living, vroulcl take as a survivor, do not take as survivors. Guernsey v. Guernsey, 36 N. Y. 367 ; "Wylie v. Lockwood, 86 id. 391 ; Davis v. Davis, 118 id. 411 ; Mullarkey v. Sullivan, 186 id. 337 ; see Mowatt v. Carow, 7 Paige, 338. See pp. See Widrig v. Finster, 18 Hun, 337 ; Coe v. De Witt, 33 id. 438. (h) Tenants in common creating, by parol, estate by survivorship. Murphy v. Whitney, 140 N. Y. 541, p. 14. Devise to B., C, D., and E., sons, "to them and their heirs lawful of their bodies, share and share alike," and if any son should die without issue, all his right, title * * * should devolve on survivors equally; if all sons should die without lawful issue, then children of daughter should have estate "to them, their heirs and assigns foreyer." Testator died in 1801 leaving four sons and daughter and grand- children, and all sons died without issue. 310 X ESTATES IN EXPECTANCY. 18. CONTINGENT ESTATES-CASES. 2. ESTATES BY SUltVIVORSHIP. Construction : (1) Devise to B., 0., D., and E. was an estate tail in an undivided fourth part. (2) B., C, D., and B. took cross remainders between themselves. (3) Such cross remainders were to await the termination of the primary estate and were remainders and not conditional limitations. (4) As the limitation was on the default of issue of the shortest lives they were contingent. (5) The statute abolishing entails, turned the estate in tail into abso- lute fees and cut off both the contingent cross remainders and the limi- tation over to children. Lott v. Wykoff, 2 K Y. 355 ; 1 Barb. 565. Note. — When a limitation over could take effect as a remainder, it should never be construed as an executory devise. Wolfe v. Van Nostrand, 2 N. Y. 436 ; Purefoy V. Rogers, 2 Saund. 386 ; Doe v. Morgan, 3 Term. R. 763. By the terms of the will, the testator had devised his estate to his three children in fee, share and share alike, provided, however, that in case either should die without issue, that such share should go to the surviving children equally. Construction : One of the children dying, leaving an heir, such heir took, abso- lutely, the estate of its parent. Also, such heir could not be deemed to be included in the term " survivor or survivors," as used in the will. On the death of one of the three without heirs, the remaining child living, took such share.* Guernsey v. Guernsey, 36 N. Y. 267. Estates to issue, or, if none, to survivor of one of two legatees dying before a division of the estate. Manice v. Manice, 43 N. Y. 303, 368, digested p. 423. See, Buel v. South wick, 70 N. T. 581, digested p. 320. Estates by survivorship. Kelso v. Lorillard, 85 N". Y. 177, di- gested p. 322. Estates by survivorship. Beardsley v. Hotchhiss, 96 N. Y. 201, digested p. 442. Devise to two grandsons of real estate jointly and in equal propor- tions, and provision that in case of the death of either without lawful •Grandchildren were not regarded as surviving children in Jackson v. Blanshan, 8 Johns. 292 ; Jackson v. Staats, 11 id. 337 ; Mowatt v. Carow, 7 Paige, 328 ; Lowery V. O'Bryan, 4 Rich. Eq. 262. See, also, Wylee v. Lockwood, 86 N. T. 291. II. FUTURE ESTATES. 3H 18. CONTINGENT ESTATES-OASES. 3. ESTATES BT SXJBVIVOESHIP. issue, the survivor should take the whole, and that upon his death, if without issue, the estate should go to the children of his son H. Construction : By the provision in reference to the two devisees dying without issue, a death prior to that of the testator was not alone intended, but as well a death after his decease, and the two devisees took a contin- gent estate in fee subject to be reduced to a life estate as to each, by his death without issue. In the case of the death of both without issue, the devise to the children of H. would take effect as a valid con- tingent limitation upon a fee, and hence the grandchildren living at the testator's death were proper and necessary parties to an action of partition. The rule was not changed by the fact that the primary devise was chargeable with legacies and other burdens ; the gift of an absolute fee could in no case be implied from the fact that the legacy is charged simply upon the lands, not upon the devisee personally ; and when the language of the will is explicit and unambiguous and gives an estate less than a fee, although it charges the devisee personally with the pay- ment of legacies, the payment thereof will not enlarge the estate to an absolute fee. Nellis v. Nellis, 99 N. Y. 505. Distinguishing Livingston v. Greene. 52 N. Y. 118 ; Embury v. Sheldon, 68 id. 227 ; Kelly v. Kelly, 5 Lans. 443, aff'd 61 N. Y. 47. The will of D. disposed of his real estate as follows : " I give and bequeath all my real estate in fee simple to my three sons" (naming them), " and the survivor and survivors of them in case either die before me without issue ; and in case either die before me leaving issue, the share of such deceased child shall go to such issue." Two of the sons died before the testator, first H., who left three children, and thereafter J., who left no issue. Construction : The surviving son took two- thirds and the children of BL one-third. Davis V. Davis, 118 K Y. 411, aff'g 44 Hun, 365. See, gift to a class, p. 283. The rule that words of survivorship in a will refer to the time of the testator's death applies only to an absolute gift to one and in the, case of his death to another; it has no application in a case where the first devisee or legatee takes a life estate. Vanderzee v. Slingerland, 103 N". Y. 47 ; In the Matter of ISl. Y., L. & W. R. Co., 105 id. 89 ; Fowler v. Ingersoll, 127 id. 472; Mead v. Maben, 131 id. 255. 312 X. ESTATES IN EXPECTANCY. 18. CONTINGENT ESTATES-CASES. 2. ESTATES BY 8UKVIV0KSHIP. While the courts favor a construction of a will which will permit the children of a deceased child of the testator to take, rather than one which will exclude them, this principle has no application in a case where the language of the will is plain and the intention of the testator is so clearly expressed as to leave no room for construction. The will of S. provided that all his real estate should be deemed con- verted into personalty, his residuary estate he gave to his executors to invest and hold the same in equal shares and apply the income to the use of his surviving children '' during the life of each of them severally and upon the death of each * * * to pay over the capital of the share of said child so dying to his or her descendants," and in case of the death of a child " without leaving any descendants, then to pay over the Capital of such child's share to his or her surviving brothers and sisters." The testator left surviving him six children, two of them died, one with- out descendants and the other leaving two children, then a third ohild died without descendants. Action for the construction of the wilL Construction : The share of the child who died last went to the children of the testa- tor who survived the child so dying, and said two grandchildren were not entitled to share therein. Same luill: The testator made specific devises and bequests to certain of his daughters for life then to their descendants, adding these words to each, "if she leaves no issue surviving her then to my other daughters that may be in life at the time of the death of my said daughter, and the child or children of any of my daughters that may have died, if such there be, taking _per stirpes and uoi per capita.'''' Construction : The difference in the language of the two provisions instead of tend- ing to show that the intent of the testator in both cases was the same, served but to emphasize the different intention. Mullarhy v. Sullivan^ 136 N. Y. 227, rev'g 63 Hun, 156. It appeared from. the complaint that H. died leaving seven surviving children, of whom the defendant, M., is the last survivor, none of which ever married except the father of the plaintiff. At the death of H. his children, becoming tenants of a farm, agreed to own it as joint tenants, and upon the death of any one of them the farm should pass by II. FUTURE ESTATES. SIS 18. CONTINGENT ESTATES-CASES. 3. ESTATES BT SURVIVOHSHIP. devise and descent tothe survivors. After the marriage of the plaintiff's father and the birth of the plaintiff, it was agreed at a family meeting of all the children that the prior agreement should be reaffirmed and that upon the death of the last survivor the farm should by devise and descent pass to the plaintiff. This agreement was kept until M., as survivor, became vested of the title. The other defendants, living in the family, and aware of the agreement, by fraud and undue influence and coercion, obtained from M. deeds of the farm and were appropriat- ing the proceeds. The plaintiff asked that the conveyances be set aside and that they be required to account for the proceeds of the real estate sold. On demurrer it was held that a good cause of action was set forth and that the agreement was neither against public policy nor m contravention of the statute of perpetuities, and that, although not in writing, there was a sufficient part performance to take it out of the statute of frauds; also, that plaintiff had a vested remainder. Murjihy v. Whitney, 140 K Y. 541, aff'g 69 Hun, 578. 3. ESTATES DEPENDENT UPON SURVIVING PBBVIOUS TAKER OR BENEFICIARY, OR THE EXPIRATION OF THE TRUST. Carmichael v. Carmichael, 1 Abb. Ct. App. 309; Colton v. Fox, 67 N. Y. 348;. Floyd V. Carow, 88 id. 560, 568; Delafield v. Sbipman, 103 id. 463; Townshend v. Frommer, 125 Id. 446; Knowlton v. Atkins, 134 id. 313; Adams v. Beektnan, 1 Paige, 631. See Louglieed v. Dykeman's B. Cliurch, 129 N. Y. 311; Camp v. Cronkriglit,^ 59 Hun, 488; Nathan v. Hendricks, 87 id. 483. The terms of the will gave all testator's e.'State to his wife for her life, after her death, a remainder to testator's children, who might then be living, share and share alike, the share of one son, named, to be held and invested by testator's executor, during the lifetime of said son, and the income paid to him, etc. Construction : The latter clause did not give the son a vested interest on testator's death; but the son, like the other children, took only in case he sur- vived at the widow's death. Carmichael v. Carmichael, 1 Abb. Ct. App. 309. J., by his last will, bequeathed his personalty to his executor in trust, to pay the income to W. B. J. during his life; upon his death, the in- come to be divided equally and. paid to C. and G. during their lives, and upon the death of both, the whole estate to pass to the child or children of Gr. ; if Gr. die without issue, then to the trustees of Columbia College. Held, that by the terms of the will there was no vested estate in 40 S14 X ESTATES IN EXPECTANCY. 18. CONTINGENT ESTATES-CASES. 3. ESTATES DEPENDENT UPON SUBVIVINa PREVIOUS TAKER OR BENEFICIARY, OR THE EXPIRATION OF THE TRUST. remainder until the death of the three cestuis que trust, and that the be- quest was therefore void. Knox v. Jones, 47 N. Y. 389. Estates to trustees to pay income to two brothers and two sisters in equal portions during their joint lives and after their " several deaths '' to divide among their children. Estates to children were contingent on their surviving the parent, and the provision was void as unduly suspending power of alienation. Colton v. Fox, 67 N. Y. 848, di- gested p. 428. Distinguishing, Everitt v. Everitt, 29 N. T. 40; Monarque v. Monarque, 80 id. 330; Wells V. "Wells, 88 id. 333. See, Sehettler v. Smith, 41 N. Y. 338; Knox v. Jones, 47 id. 389; Warner v. Du- rant, 76 id. 136; Smith v. Edwards, 88 id. 93; Hobson v. Hale, 95 id. 588, 614; Ship- man V. RoUins, 98 id. 311; Ward v. Ward, 105 id. 68, 74; Coster v. Lorillard, 5 Paige, 173; 14 Wend. 365. The will of D, gave his residuary estate to trustees in trust " to apply and manage the same for the benefit, support and comfort " of the testa- tor's wife and six children, who survived him, in the manner provided, which was in substance, that the trustees should provide a furnished house for a home for the widow and children, and to pay all expenses of iieeping up the same during her life, and to make a dividend of the residue of the income between the widow and children ; e'ach receiving an equal share, and each " to defray out of his or her share " his or her personal expenses. The will directed the trustees, upon the death of the widow, to make an equal division of the trust estate between- his children then living, the issue of any deceased child to receive the share the parent would have received if living. Harriet, one of the children, died during the lifetime of the widow, leaving her husband one child surviving, and leaving a will by which she gave all her property to her husband for life, and remainder to child. Action for the construction of the will of D. Construction : D.'s children took no vested interest in the corpus of the trust estate until the death of the widow, but it was vested in the trustees, Warner V. Durant, 76 N. Y. 133 ; Smith v. Edwards, 88 id. 92 ; Shipman v. Eollins, 98 id. 311 ; the widow and children took the surplus income, not as a cla.ss, but distributively as tenants in common ; Hoppock v. Tucker, 59 N. Y. 202 ; when the daughter died the one-seventh of such surplus income payable to her did not pass to the surviving six benefi- ciaries, but was undisposed of under the will, and devolved upon the IL FUTURE ESTATES. 315 18. CONTINGENT ESTATES-CASES. 3. ESTATES DEPENDENT UPON SaRVIVING PREVIOUS TAKER OR BENEFICIARY, OR TETE EXPIRATION OP THE TRUST. child of the daughter under the Ee vised Statutes. IRS. 726, sec. 40. Delafield v. Shipman, 103 K Y. 463, rev'g 34 Hun, 514. Note. — The testator vested the whole estate in the trustees during the life of his widow, and during that time evidently intended that it should remain there, and not be subject to the disposal of his children, or liable to be seized by their creditors; and after the death of his widow he gave it, not to the children living at his death, but to children and descendants of children, deceased, living at her death. Devise in trust to executors for life and benefit of widow, remainder to daughter ; death of daughter gave widow a future estate, dependent on the precedent estate of the trustees and enjoyable on the termina- tion thereof. Asche v. Asche, 113 N". Y. 232, digested p. 192. Trust to pay income to grantor and at her death to "convey the said lands and every part of them in fee simple" to her children "living at her decease and the surviving children of such of them as may be dead," conferred no interest in the estate during the grantor's life upon any member of the class of intended beneficiaries, and so they were not necessary parties to a foreclosure of a mortgage existing at the time of the grant. Townshend v. Frommer, 125 N. Y. 446. Cited in Curtis v. Murphy, 129 N. Y. 645; distinguished in Knowlton v. Atkins, 134 id. 313, 317; Campbell v. Stokes, 143 id. 23, 30. See U. S. Trust Co. v. Roche, 116 N. Y. 130; Mead v. Mitchell, 17 id. 310; Moore V. Appleby, 108 id. 237.; afE'g 36 Hun, 368. A. conveyed to defendant certain lands by deed absolute in terms. A. died leaving a widow and two minor children ; after his death de- fendant executed a declaration of trust, stating that the conveyance was made to him in trust to sell the lands and collect the rents, etc., for the benefit of the widow and children of the grantor, the widow to receive one-third of the net income and proceeds of sale during life, the remain- ing two-thirds to be used for the support and education of the children during minority, or for the use of the survivor in case of the death of either without issue before his majority, the trust to terminate when the younger of the children or the survivor became of age ; the property unsold then to be conveyed to the children as joint tenants, subject to the widow's dower right, and the proceeds of sales and unexpended income to be equally divided between them after first paying the widow the value of her interest. In case of the death of both children with- out issue before the age of maturity, the property and trust fund then to be conveyed and paid over to her. The widow died, and thereafter both of the children died during minority, both on the same day, but 316 X ESTATES IN EXPECTANCY. 18. CONTINGENT ESTATES— CASES. 3. ESTATES DEPENDENT UPON SUBVIVING PREVIOUS TAKER OR BENEFICIARY,, OR THE EXPIRATION OP THE TRUST. the one surviving the other. The immediate relatives left were defend- ant, brother of A., and p]ainti2, brother of his widow. Construction : The deed and the declaration of trust were to be considered as one instrument ; under it, the children took a vested future estate, defeasible by death, during minority; the limitation over to the widow created in her an estate in expectancy, limited upon the contingencies of the death of both children in infancy, and defeasible by her death before that of her children ; therefore, it was defeated by such death, and assuming that thereupon the estate of the children became indefeasible, one-half descended first to the survivor, and from and through him the whole of it to the parties to this action in the proportion of three-fourths to the defendant and one-fourth to plaintiff. Knowlion v. Aildns, 134 N. Y. 313, afE'g 56 Hun, 408. From opinion. — "The brother having the title was the creator of the trust, and if, as the defendant contends the estate then reverted to his heirs, he, as such heir, took it. The plaintiff, on the contrary, insists that the widow Cordelia had by the trust an estate in expectancy in the property, which on her death descended to her two children; and that on their death in minority the estate became absolute and vested in their heirs. And because it came to them in that event on the part of their mother, it descended to their maternal uncle, except as to one-half which came to Albert by descent from his brother Osmin M., whom he survived; and as to that half both the defendant and plaintiff, as his paternal and maternal uncles, took and shared equally. This would be so upon the assumption that such was the stock of descent, since for the purpose of determining who in that manner take under our staiute, refer- ence is had to the immediate source of descent, and not to the blood of him in whom was the earlier inheritable title. 1 K. S. 752, sees. 10, 13; Hyatt v. Pugsley, 33 Barb. 378. The main inquiry here is whether or not the widow Cordelia had in the prop- erty an estate which descended on her death to her childran. Her alleged estate was the product of the grant made by Osmia W. Atkins to the defendant for the declared purpose of the trust. And the fact that this was an express trust, and, therefore, vested the whole estate in the trustee subject to the execution of the trust (1 R. S. 739, sec. 60), did not prevent Cordelia and the children taking tlirough the same grant so made vested future estates in the property, although they were held until its termination subject to the execution of the trust. Id. sec. 61; Embury v. Sheldon, 68 N. y. 337, 334; Goebel v. Wolf, 118 id. 405; Van Axte v. Fisher, 117 id. 401; in re Tienken, 181 id. 391. Upon this proposition in the present case, Townshend v. Frommer, 125 N. Y. 446, has no necessary application. The future estates wliich there were the subject of consideration were treated as contingent." Note 1. Her (mother's) survivorship of the children was not essential to such ex- pectant estate, unless made so by the contingency upon which it was limited, although it could not become absolute without the death of the children in minority, and the estate so descending from their mother never could be enjoyed by them. Hennesay II. FUTURE ESTATES. 317 IS. CONTINGENT ESTATES-CASES. 3. ESTATES DEPENDENT UPON SURVIVING PREVIOUS TAKER OB BBNEFICIAKY, OR THE EXPIRATION OF THE TRUST. V. Patterson, 85 N. Y. 91; Kenyon v. See, 94 id. 563; Van Axte v. Fisher, 117 id. 401; Griffin v. Shepard, 134 id. 70. Note 3. And it may be observed that upon doubtful construction the tendency of the law is to favor that which permits the descent to remain in the line of ancestral blood. Quinn v. Hardenbrook, 54 N. Y. 83; Wood v. Mitcham, 93 id. 375. The separate devises of the premises iu .the seventh clause of the will to Laura F. Carow and Sarah Elizabeth Sanderson upon the death of the testator's wife, of a life estate to them respectively, and of the fee on their death to their issue then surviving, was not an absolute disposition of the whole estate of the testator in the land: The devisees for life were unmarried at the date of the will and at the death of the testa- tor. The estates devised to the unborn issue of the life tenants were contingent re- mainders in fee, depending upon a double contingency, viz. : the birth of issue and their survivorship. Floyd v. Oarow, 88 N. Y. 560, 568. Grandchildren living at the death of the testator did not take a vested interest in the share of their parents, subject to open and let in afterborn children. Their in- terests were contingent, and dependent entirely upon the event of their surviving their parents. Parsons v. Snook, 40 Barb. 144. Where there is a bequest in remainder after the determination of a particular estate, with an executory limitation over in case of the death of the legatee, the legatee takes only a contingent interest which will be divested if he dies during the continuance of the particular estate, and the limitation over will take effect. Adams v. Beekman, 1 Paige, 631. 4. ESTATES CONTINaENT UPON DEATH OP PREVIOUS TAKER UNMARRIED "WITH- OUT ISSUE, OR WITHOUT LEAVING CHILDREN OB ISSUE. See, Vested Estates, 7. (a) Acceleration of remainders, p. 318 note 1. (b) Devise over on death of "legitimate heirs " means on death of children. Lytic V. Beveridge, 58 N. Y. 593. (c) Devise to A. for life, then to his issue, if any; if none, over; if A. die "with- out issue in testator's lifetime, contingent limitation takes effect. Downing v. Marshall, 23 N. Y. 366; Norris v. Beyea, 13 id. 373. Devise to B., wife, for life, "and after her death, in case C, only child, should die without having married, or without leaving child," to nephew. C. survived B., married and died without ever having children. Construction : (1) Life estate to B. (2) Eemainder to the nephew contingent upon C. having died before her mother, without leaving children. (3) Fee descended to C. as heir at law of testator during mother's life. (4) C, not having died before mother, leaving no issue, took the fee. (5) Those claiming under nephew took nothing, as his remainder never vested. 318 X. ESTATES m EXPECTANCY. 18. CONTINGENT ESTATES-CASES. 4. ESTATES CONTINGENT UPON DEATH OP PREVIOUS TAKBB UNMAKRIED, WITH- OUT ISSUE, OR WITHOUT LEAVING CHILDREN OR ISSUE. (6) Extrinsic facts were resorted to, viz.: age of 0. and B.; fact that it was city property that could not have been utilized either foi' C. or nephew under other construction, for if the claim had been maintained that the death of C. without leaving issue referred to any time, whether before or after B.'s death, then all through C.'s life it would have been doubtful about her taking an absolute estate, and as the nephew's estate would be equally doubtful the city land would not have been useful. Wolfe V. Vmi Nosirand, 2 N. Y. 436. Executory gifts, limited to take effect upon the prior legatee dying under age and without issue, are not defeated by the death, of the prior legatee under age and without issue in the lifetime of the testator, but such gifts take effect immediately upon the death of the testator, as though there had been no preceding limitation.' But it seems, that, if the first legatee had attained the prescribed age- or had issue, and afterwards had died in the testator's lifetime, the future estates would not have taken effect. Norris v. Beyea, 13 N. Y. 273. See, Downing v. Marshall, 33 N. Y. 366; McLean v. Freeman, 70 id. 81. ' Under a bequest to one for life, with remainder over, if the particular beneficiary die before testator, the remainder takes effect at the latter's death. This rule applies, although the will give trustees a discretion to devote the entire principal to the use of the life legatee. (See cases cited in opinion.) Sauter v. Muller, 1 Dem. 389. Where the provision rejected by the widow consists of a life estate in real and per- sonal property, which by the terms of the will is given to a third person after the widow's death or remarriage, the renunciation of the widow does not defeat the gift in remainder, but the latter becomes immediately accelerated, but charged, however, with the equity in favor of disappointed devisees. Sarles v. Sarles, 19 Abb. N. C. 333. See note to this case reviewing similar decisions in several states. The general rule, that by the death of the legatee before the testator, his interests under the will lapses, relates only to the interest of the party so dying, and where there are other interests grafted or limited upon that of the deceased legatee, they do not necessarily fall. Where a life tenant dies before the testator, but the party entitled in remainder sur- vives liim, the death of the life tenant only extinguishes the life estate, and the re- mainderman is let in to the immediate right to the gift, the moment the will takes effect. Taylor v. Wendell, 4 Bradf. 334. Where an interest in property is given to a person, with a limitation over of the same interest to his children, or others upon his death before the time appointed for such interest to vest in possession, the death of the first devisee or legatee, in the life- time of the testator, does not produce a lapse of the limitation over to the substituted objects of the testator's bounty. Mowatt v. Carow, 7 Paige, 838 ; McLean v. Free- man, 9 Hun, 346; Crozier v. Bray, 39 id. 131 ; Den v. Hance, 11 N. J. L. R. 344. When first taker declines the estate, the estat ; next limited upon the expiration of the estate so declined, takes effect at once. Brown v. Hunt, 13 Heisk., Tenn., 404. II. FUTUEE ESTATES. 319 18. CONTINGENT ESTATES— CASES. 4. ESTATES CONTINGENT UPON DEATH OF PREVIOUS TAKER UNMARRIED, WITH- OUT ISSUE, OR WITHOUT LEAVING CHILDREN OR ISSUE. Devise taking effect before Revised Statutes to B., daughter, "her heirs and assigns forever," but if she should die unmarried and without leaving child surviving her, then limitation over to sisters ; but if B. " shall die either before or after my decease, leaving lawful issue," then devise " unto such child or children " of all given to their mother," and in case B. shall die without lawful issue, and at the time of her death her sisters should be dead and have a child or children then living," the shares given to their respective mothers are given to sucb children. B. married and died leaving daughter surviving her. Construction : 1. Devise to B. was reduced by the restrictions subsequently imposed upon it, and by the event of her leaving a child, either to a determina- ble fee or to a life estate. In either case the devise over carried upon her death an estate in fee to her daughter as purchaser, and not as heir of her mother. 2. Devise to B. was a fee simple, whicb would be absolute in the event of her marrying and having no children, or having and surviving them. 3. The executory devise in favor of her sisters could determine her fee only upon the double contingency of B. dying unmarried and with- out leaving a child. Chrystie v. Phyfe, 19 N. Y. 844. See, Fleming v 'Burnliain, 100 N. Y. 1 (13), digested p. 741; Crooke v. County of Kings, 97 id. 431 (440), digested p. 444. Grant to B. in trust to receive and pay rents to the use of A. for his life, and assign and convey estate to A.'s issue, and if A. died without issue to convey to nephews. Nephews took executory devise. In re Livingston, 34 N. Y. 555. The will of I, who died in 1823, contained a devise to his son J., of certain real estate, " during his natural life, but if he leave no legiti- mate heirs" then the property to " revert back" to his son D., his heirs and assigns. I. died leaving six children. A clause in the will expressed the testator's purpose to divide his property among his children. No other provision was made for D., while provision was made for all the others. By another clause D. was required to pay. a grandson of the testator twenty dollars "when he enjoys my home- stead, as specified." J. had been married many years, and had no children. Provision was made for his wife, in case she survived him. Action of ejectment brougJit by devisees of J. 320 X. ESTATES IN EXPECTANCY. 18. CONTINGENT ESTATES-CASES. 4. ESTATES CONTINGENT UPON DEATH OF PREVIOUS TAKER UNMAKRIBD, WITH- OUT ISSUE, OR WITHOUT LEAVING CHILDREN OR ISSUE. Construction : The meaning of the testator, in the use of the words " if he leave no legitimate heirs," was, if he leave no children born in lawful wedlock living at the time of his decease ; the words " legitimate heir," as used, were words of purchase, nor of limitation, and, therefore, the rule in Shelley's case did not apply; the devise was to J. for life, with a remainder to D., in fee, contingent upon the death of J. leaving no ■child surviving; and this contingency having happened, D. took an absolute fee. Lytle v. Beveridge, 58 IST. Y. 592. Devise of premises to each of three children, C, J. and W., respect- ively, " and his, her or their direct lineal descendants, should he, she or they have any, in fee simple absolutely," subject to the conditions and contingencies, viz., "in the event that either shall die, leaving no children or descendants of any children, then " the devise to the one so dying to go " to the children o£ the survivors or survivor * * * equally, share and share alike, the direct lineal descendants, if any, of such of my said three children * * * as may then be deceased to be entitled to the same share which a child or children so deceased would have been entitled to if living." C. died without having had a child born. Construction : The death referred to was not one during the life of the testator. The devise to C. gave a contingent estate in fee, subject to be re- duced to a life estate by his death without children, or the descendants of children, and therefore upon his death the fee passed to the children of J. and W., then living. The devise over was a valid contingent limitation upon a fee (1 E. S. 724, sec. 24) and did not unduly suspend power of alienation. 1 R. S. 723, sees. 14, 15. Buel v. Souilmich, 70 N. Y. 581. Distiiiguisliing Livingston v. Greene, 53 N. Y. 118 ; Embury v. Sheldon, 68 id. 237. See Nellis v. Nellis, 99 N. Y. 505 (512), digested p. 310 ; Fowler v. IngersoU, 127 id. 472 (478), digested p. 358. Gift by will as follows: One-half to E., son; one-fourth to J., daughter, and one-fourth to E., in trust, to pay interest to W., testator's son, during life, and that said fourth should be divided equally be- tween W.'s children, if he left any; if he left none, then that the one- fourth so held in trust should be given to E. and J. equally. II. FUTURE ESTATES. 321 18. CONTINGENT ESTATES-CASES. 4. ESTATES CONTINGENT UPON DEATH OF PREVIOUS TAKER UNMARRIED, WITH- OUT ISSUE. OR WITHOUT LEAVING CHILDREN OR ISSUE. Construction : . (1) E. and J. had an estate in expectancy in the one-fourth left in trust, which would become absolute upon the death of W. without issue surviving him. (2) E.'s and J.'s interests were alienable and a release and convey- ance by them to W. of their interest in the trust estate carried to W. their expectant interest in such one-fourth in trust. Ham v. Van Ordm, 84 N. Y. 257. Note. — Whether E, and J. took a vested or contingent estate was not decided. See Kelso v. Lorillard, 85 N. Y. 177, 184 ; Beardsley v. Hotchkiss, 96 id. 314 ; Griffin v. Shepard, 134 id. 75, 76. Devise to wife, to be held by her to and for the chief purpose of keeping and protecting the same for her own and her daughter's benefit, the same to be used for the maintenance and support of herself and said daughter. In case of remarriage of widow, the executors were empowered to take control of the premises from her and also guardian- ship of the daughter, and then the following : " If my said daughter Margaret should get married, or die without leaving any children, and that her husband should live after her death, he shall not inherit the said property or any part thereof; but if there are any children born of my daughter, and living after her death, the property shall be theirs. * * * Should my said daughter Margaret die without leaving any issue, then the said property shall be left to my nephew, John Foley." The wife, Foley and daughter survived the testator and there- after died in the order named, the daughter without issue. Construction : Foley took an estate in expectancy, to wit, a contingent remainder, which vested in him as a right, according to its character, upon the death of the testator, and which descended to his heirs ; so that upon the death of Margaret without issue, the estate vested absolutely in the heirs of Foley and a deed executed by the daughter was inoperative. Hennessy v. Patterson, 85 N. Y. 91. (This opinion considers the common law and changes made by statute.) See Griffin V. Shepard, 134 N. Y. 70(76), digested p. 343; Knowlton v. Atkins, 134 id. 313 (319), digested p. 315. Note. — It is considered that Margaret took \>j implication a life estate after the death of her mother. (98,104.) 41 322 X ESTATES IN EXPECTANCY. 18. CONTINGENT ESTATES-CASES. 4. ESTATES CONTINGENT UPON DEATH OF PREVIOUS TAKES UNMABRIBD, WITH- OUT ISSUE, OR WITHOUT LEAVING CHILDREN OR ISSUE. The rule in Shelley's case applied only to the first taker, and would not apply to the gift to Margaret. (98.) Alternative estates or contingencies with a double aspect were valid at common law. (99, 100.) Even if Margaret had taken a base or determinable fee, the limitation to Foley would have been good as an executory devise. (99.) Foley's estate was descendible unless his survivorship was an element of the con- tingency upon which the estate was limited. (99, 100, 101.) Under R. S. a fee may be limited on a fee. (100.) The word " then" in the sentence, "should my daughter M. die without leaving any issue, tJien the said property shall be left to my nephew, John Foley," refers to the event, the happening of the contingency, viz., the death of M. without leaving any issue, and not to the time at which Foley's right should commence. Distinction between vesting of a right to a future estate and the vesting of the same in possession pointed out. (103, 104.) C. died seized of real estate devised to her by her mother, and leav- ing a will giving all her estate to her husband for life, remainder to her son T., if he should live until he became of age ; if he should marry and die before maturity, leaving a child or children, then such child or children should take ; if he died before maturity unmarried and leav- ing no child, then she gave all the estate given to her by her mother to her two sisters L. (plaintiS) and E.; if either should die, leaving no child, the survivor to take the whole ; if both should die leaving a child or children, the share of each parent to go to her child or children ; if either should die leaving no child, the child or children of the one who died leaving a child or children to take. The day following the execution of the will the testatrix died ; soon after her husband died ; her son T. died under age, unmarried and leaving no child ; her sister E. died before T., leaving no child, and leaving by will all her estate to her husband. The action was by plaintiff L. (sister) to compel performance of contract of purchase of such real estate from her. Construction : Upon death of C, testatrix, her husband took an estate for life ; son T. took a vested remainder in fee, subject to be defeated by his death before majority unmarried and without issue. The clauses following the devise to him speak as of the date of such death (T.'s death) where- upon the absolute fee would immediately vest in the person or persons indicated ; there was no unlawful suspension of the power of alienation. Each sister took an estate in expectancy, that is, a remainder cOntin- X FUTURE ESTATES. 323 18. CONTINGENT ESTATES-CASES. 4. ESTATES CONTINGENT TXPON DEATH OF PREVIOUS TAKER TJMMARRIED, WITH- OUT ISSUE, OR WITHOUT LEAVING CHILDREN OR ISSUE. gent upon the death of the son before maturity, unmarried and with- out a child, and contingent upon her surviving him. Upon the death of E., leaving no child, her interest ceased, and the estate in expectancy of plaintiff was enlarged so as to include the whole of the land, which, upon the death of T., ripened into an absolute fee, whereby she could convey a perfect title. Kelso v. Lorillard, 85 N. Y. 177, aff'g 9 Daly, 300. Distinguishing Moore v. Lyons, 25 Wend. 119, where words of survivorship re- ferred to the death of the testator and not to the death of the tenant for life. This case is distinguished in Byrnes v. Stilwell, 103 N. Y. 453, 462. Y. devised real estate to his son for life, and directed that upon the son's death the land should " be equally divided among his children, should he have any ;" if no issue or descendants survived the son, the farm was to be equally divided among " the children of issue" of the testator's brothers and sisters. At tbe time of proceedings to sell the testator's real estate for the payment of debts, the son and four of his children were living, also several children of testator's brothers and sis- ters, who were not made parties to the proceeding. The purchaser thereon contracted to sell to plaintiff, who refused to take on account of defect of title. Construction : (1) The children of the brothers and sisters were necessary parties to the proceeding to sell the real estate, as they took a good contingent re- mainder in the land, subject to be defeated if any of the children of testator's son survived. 1 E. S. 724, sec. 16. (2) the power oE alienation was not unduly suspended. Wilson v. White, 109 K Y. 59. Citing Monarque v. Monarque, 80 N. T. 335 ; Baker v. Lorillard, 4 id. 257. Estate limited on death of first remainderman without children, Avery v. Uuerett, 110 N. Y. 317, digested p. 278. An estate was held to be contingent for the reason that the persons to whom the estate was limited to take effect remained uncertain. The children of the testatrix now living might die leaving children who would take in their parent's stead, when the event occurred upon which the precedent estate was terminable. Dana v. Murray, 122 N". Y. 604- 617, digested p. 461. See generally on this subject, Mullarkey v. Sullivan, 186 N. Y. 227, digested p. 312 ; Baker v. Lorillard, 4 id. 357, digested p. 91. A testator by his will devised the residue of his estate to his children, and then pro- 324 X. ESTATES IN EXPECTANCY. 18. CONTINGENT ESTATES— CASES. 4. ESTATES CONTINGENT UPON DEATH OF PREVIOUS TAKER UNMARRIED, 'WITH- OUT ISSUE, OR "WITHOUT LEAVING CHILDREN OR ISSUE. vided as to the share .devised to one daughter, " that ia case of her death without is- sue, that then and in that case such share shall go to my surviving children." The daughter survived the testator, and had children born before his death. The daughter and the other children of the testator joined in a conveyance of a portion of the residuary estate. Held, that the children of the daughter took no estate in the lands. That the daughter took an estate in fee with a contingent limitation over. That even if she took a life estate only, the remainder or future expectant estate was not in her children, but in the surviving children of the testator and was alien- able by them. McLoughlin v. Maher, 17 Hun, 315. Gift to A. , contingent upon her death married and without children, or prior to the death of her brother or sister, went over in case A. died married and without children, or unmarried previous to her brother or sister. Beck v. Ennii, 54 Hun, 136. A contingent remainder was created to take effect in the eveot that the persons to whom the first remainder was limited should die under the age of twenty-one years and ■without leaving lawful issue him or her surviving. Fowler v. Depau, 38 Barb. 334. Where the testator, by his will, devised to his granddaughter a house and lot of land from and immediately after his youngest grandchild named in the will attained the age of twenty-one, to hold the same to the granddaughter for life, with remainder in fee to such child or children as might be born of her body ; and devised other real estate, in like manner, to his other grandchildren for life, with remainder to their children in fee ; and by a subsequent clause of his will, directed that if any of his grandchildren should die without leaving lawful issue at the time of their death, the devise to such grandchild so dying without issue, should vest in the other grand- children, their heirs and assigns forever ; held, that the granddaughter took a contin- gent estate for life in the house and lot, which became vested in possession when the youngest grandchild of the testator arrive 1 at the age of twenty-one ; and that such of the children of the granddaughter as were then in existence, or, if none were then in existence then those who were born afterwards, at their birth, took a remainder in fee, subject to the contingency of their dying without leaving issue living at the death of their mother, and subject also to open and let in afterborn children. Matter of Sanders, 4 Paige, 393. T., by his last will, after giving to his nephews, R., N., S., etc., each £1,000, as they came of age, devised two houses and lots "with every right agreeable to the deeds of the same,'' to R., to be delivered to him as soon as he came to the age of twenty-one years; and if he died " before he came to age and without male issue," he devised the same to N., "to be delivered to him as soon as he comes to the age of twenty-one years." "The first possessor, as soon as his first male child shall come to the age of twenty-one years, it is my will that the right of the said houses be to him, his heirs and assigns, forever; but not to be disposed of before his eldest son comes to age;" whoever gets the houses, to have no claim to the £1,000, before left him, but his share to be equally divided with the other legatees. R. arrived at the age of twenty-one years, but had no issue. Construction : By the words " dying without male issue," R. took an estate tail, by the English law, or an estate in fee under our statute; the fee vested in R., on his attaining the age of twenty-one years or having male issue, either event being suflBcient for that pur- pose. Roosevelt v. Thurman, 1 Johns. Ch. 330. II. FUTURE ESTATES. 325 18. CONTINGENT ESTATES-CASES. 4. ESTATES CONTINGENT UPON DEATH OP PREVIOUS TAKER UNMARRIED, WITH- OUT ISSUE, OR WITHOUT LBAVINfl CHILDREN OR ISSUE. Devise to M. " and if lie sliould die, not having any male heir" then over, gives fee on birth of male issue. Graham v. Moore, IS S. C. 115. Devise to daughter (only heir at law) and over if she died childless during her minority, as she did. Estate never vested in daughter, and daughter did not take as she would have taken as heir at law. Plant v. Weeks, 39 Mich. 117 ; Sager v. Gal- loway, 113 Pa. 500. 5. CONTINGENT I-XMITATION IN FAVOR OF PERSONS NOT IN BEING. Harrison v. Harrison, 36 N. Y. 543; Manice v. Manice, 43 id. 305. Future contingent limitations of real estate in favor of unascertained persons, especially the issue to be born of a son or daughter of the testator, are not prohibited by the statute. Harrison v. Harrison, 36 IST. Y. 343. A remainder in fee in real estate, to take effect after the expiration of two lives in being, at the testator's death, may be created in favor of a person not in being at that time; and in such a case a further contin- gent remainder in favor of a person not in being at the creation of the estate may be limited, to take effect in the event that the person to whom the remainder is first limited shall die under the age of twenty- one years. Manice v. Manice, 43 N. Y. 303, 376. 6. ESTATES TO A CLASS, AS TO CHILDREN, HEIRS OR ISSUE. See Vested Estates, sub. 10, Gift to a Class, p. 383. A devise to a class of persons takes effect in favor of those who con- stitute the class at the death of the testator, unless a contrary intent be inferred from some particular language of the will or from such extrin- sic facts as may be entitled to consideration in considering its provisions. Campbell v. Rawdon, 18 N. Y. 413. See Vested Estates, p. 383. (a) A devise of a future estate to heirs, in a strict sense, of a living person is a valid limitation of a contingent remainder during the life of the ancestor. This was a rule at common law, and on principle should be the rule under the Revised Statutes. Campbell v. Rawdon, 18 N. Y. 413, 417, 418; Cushman v. Horton, 59 id. 149. See pp. 355-358, 383, 383. (b) There are various decisions to the effect that although the ances- tor be living, the persons standing to him in the relation of heirs are the presumptive owners of the remainder and have a vested estate therein, subject to open and let in afterborn children and to be divested as to any members of the class dying during the existence of the prece- dent estate. Moore v. Littel, 41 N. Y. 66. See pp. 355-7. See Vested Estates, p. 383. 326 X. ESTATES IN EXPECTANCY. 18. CONTINGENT ESTATES -CASES. 6. ESTATES TO A CLASS, AS TO CHILDREN, HEIRS OR ISSUE. (c) Bat limitations in wills in favor of the heirs of a living person have been considered to mean appointments in favor of the children of the ancestor named, or his descendants or the particular persons vsrho would be his heirs if he were dead. The word " heirs " is used as synonymous with children or issue. See pp. 255-7, 283. (d) But until the birth of a member of the class the remainder is contingent. Baker v. Lorillard, 4 N. Y. 357. (e) Where there is a devise and bequest to A. of real and personal estate for life, to go to his heirs in case he die leaving issue, and in case he die without issue to go to a class of persons, if A. die without issue before the testator there is no lapse but the contingent limitation takes effect in favor of those of the class living at the testator's death capable of taking and holding the property. See ante, p. 318. Downing v. Marshall, 23 K. Y. 366. See Vested Estates, p. 374. (f) Future contingent limitations of real estate in favor of unascer- tained persons, especially the issue to be born of a son or daughter of the testator, are not prohibited by the statute. Harrison v. Harrison, 36 N. Y. 543; Manice v. Manice, 43 id. 305. (g) Children and grandchildren are words of purchase, and point not at the heritable succession but at individual acquisition. Baker v. Lorillard, 4 N. Y. 257. See p. 1440 et seq. Devise taking effect in 1807 to B., grandson, of " the use and im- provement " of real estate, with power to dispose of the same to B.'s children or grandchildren, and for want of such children or grand- children the estate should descend to testator's son and his heirs ; and by a subsequent clause, this: "I give the use of my house * * * to my grandson and then to his child or children, as the other real estate is given." Construction : (1) B. took a life estate and not a fee tail. (2) Eemainder in fee to B.'s children or grandchildren. Until the birth of a child there was a contingent remainder; first born took vested remainder subject to open and let in afterborn children or grand- children, and subject to be defeated by the exercise of power of ap- pointment. (3) Executory limitation (devise) over to testator's son, in default of II. FUTURE ESTATES. 327 18. COKTINGENT ESTATES-CASES. 6. ESTATES TO A CLASS, AS TO CHILDREN, HEIRS OR ISSUE. children or grandchildren by B. at his death, and surviving at his death. (4) If B. survived his children or grandchildren limitation over to testator's son and heirs would take eEEect. Wilson v. White, 109 N. Y. 69 (62). (5) Whether a sale under order of court of chancery could bind afterborn children. Qucere. See Campbell v. Rawdon, 18 N. Y. 412. (6) "Children" and "grandchildren" are words of purchase; they " point not at heritable succession but at individual acquisition. " Baker V. Lorillard, 4 K Y. 257. See p. 1440 et seq. Devise executed in 1819, taking effect in 1832, to B. and C, sons, and D., housekeeper, of land "to them and their heirs, for their use, improvement and equal emolument during their natural lives, and after their decease to the heirs of John Bill." Bill died in 1825, leaving three children who survived the testator. Construction: (1) B., C, and D. took life estates as tenants. (2) The heirs of Bill, in esse, took contingent remainder in fee vesting in interest at the death of the testator. (Before R S., devise to carry a fee must have express words of inheri- tance or words that show an intention to carry more than a life estate, or the taker will only get a life estate. 18 N. Y. 416; Harvey v. 01m- stead, 1 Comst. 483; 4 id. 56; Edwards v. Bishop, id. 61.) (3) Devise to a class takes effect at the testator's death in favor of those who then constitute the class, unless from the will or extrinsic facts the contrary can be inferred. 1 Jarman on Wills, 286, 287 ; 1 Eq. Cases Abr. 214 ; Carne v. Roche, 4 Moore & Payne, 862. (4) The rule construing the word " heirs " in a will in respect to a living person as merely designatio personarum is inapplicable to a devise of a future estate, when the word has its strict legal meaning and car- ries inheritance, in absence of a contrary intent; unless a contrary in- tent appears, the testator is presumed to use the words in a technical sense. Campbell v. Rawdon, 18 N. Y. 412. Citing, Harvey v. Olmstead, 1 Comst. 489; see Moore v. Littel, 41 N. Y. 66, 93. Note 1. — The contingency may reside in the very fact that the persons described as heirs are uncertain, while the ancestor lives. 18 N. Y. 418; 1 B. S. 723, sec. 13. Note 3.— If the children of Bill had died before Bill, the estate would have gone to his collateral heirs (419). The term included all who could inherit from Bill; it is 328 X ESTATES IN EXPECTANCY. 18. CONTINGENT ESTATES-CASES. 6. ESTATES TO A CLASS, AS TO CHILDREN, HEIRS OR ISSUE. nomen collectivum "and it is tlie same to say heirs of J. S., as to say heirs of J. 8. and heirs of that heir, for every particular heir is in the loins of the ancestor, and parcel of him." Note 3.— If Bill had been living at the time of the termination of the life estate, it might have defeated the remainder. (It could not now under R. S. 725, sec. 34.) Devise and bequest to B., son, for life, then to his heira, in case he died leaving issue. Bequest to executors in trust to apply income to B.'s support for life, '' and if he should die leaving lawful issue, then to pay the principal to such issue." (The will elsewhere referred to this as a part of B.'s estate.) In subsequent portion of the will provision that if B. should die without lawful issue " all the real and personal estate above devised and bequeathed to him was to go to " nephews. B. died before the testator, without issue. Construction : 1. The contingent limitation took effect in favor o£ nephews, etc., both as to property devised directly to B., and that which was given in trust for him. 2. When one of a class can not take, as for alienage, the others capa- ble of taking take all. 3. When none can take, estate descends to heirs. 4. Death of B. did not refer to death only after death of testator. Downing v. Marshall, 28 N. Y. 366. If the person primarily designated dies during a trust term lawfully constituted in respect to its duration, the statute permits the use to be shifted to some other object of the testator's bounty; and it is not neces- sary that such person should be in existence at the time of creating the trust. Future contingent limitations of real estate in favor of unascertained persons, especially the issue to be born of a son or daughter of the tes- tator, are not prohibited by the statute. Harrison v. Harrison, 36 N. Y. 543, digested p. 420. Distinguishing Amory v. Lord, 9 N. Y. 543. Eemainder in fee of real estate upon the termination of two lives in beintT at the creation of the estate, may be limited to a person not in beino- at that time, and a further contingent remainder in favor of a per- son not in being at the creation of the estate may be limited to take effect in the event that the person to whom the first remainder is first limited shall die under the age of twenty -one years ; thus to C. for life, remainder to C.'s children unborn (may be at the creation of the estate), II. FUTURE ESTATES. 329 18. CONTINGENT ESTATES-CASES. 6. ESTATES TO A CLASS, AS TO CHILDREN, HEIRS OR ISSUE. if child die under age to its issue (may be unborn at creation of the estate). Manice v. Manice, 43 N". Y. 305, digested p. 423. Bequest of use and profits to B. for life, after his death the principal to the heirs of 0. C. survived testator and B. Estate did not vest until on the death of 0. it was determined who his heirs were. Cushmaii v. Horton, 59 N. Y. 149, digested p. 1445. See, Lawton v. Coi-lies, 127 N. Y. 100, 108 ; Heath v. Hewitt, 127 id. 166, 172; Heard v. Horton, 1 Denio, 165; Montignani v. Blade, 145 N. Y. Ill, 133. Devise ia remainder to children of C. now in existence or afterwards to be born, who should be living at the happening of a specified contingency, creates a contin- gent and not vested remainder, for, as devisees are not all in existence when devise- takes effect, remainder can not vest at that time. Intention of testator prevails over unwillingness of law to create a contingent remainder. Stephens v. Evans, 30 Ind. 39 ; following 88 Mass. 311, and distinguishing 31 Pa. 504; 7 iMonr., Ky., 633; 25 Wend. 115; 3 Denio, 9; 34 Barb. 388; 35 N. H. 459. The common law rule that devise to a class takes effect in favor of those con- stituting the class at death of testator, is modified so that when an estate is devised to the children or other relatives of testator, the lineal descendants of a devisee who dies before testator take the share of their ancestor. Jamison v. Hay, 46 Mo. 546. Devise to wife " to hold at her pleasure " during life or widowhood, then to be di- vided between children alive or their bodily children, is a contingent remainder to children alive when the will was made. DeLassers v. Gatewood, 71 Mo. 371. When remainder is limited to persons not in esse, or not ascertained, as where it is limited so as to require the concurrence of some dubious uncertain event, independent of the termination of the precedent estate and duration of the estate limited in re- mainder, to give it a capacity of taking effect, the remainder is contingent. Sager v. Galloway, 113 Pa. 500; Mercantile Trust and Deposit Co. v. Brown, 71 Md. 166. Devise to husband for life and after his death to stepchildren, naming them, gives vested interest, and clause that in case of death of both stepchildren without issue, over, does not make remainder contingent, but only subject to be divested upon a future contingency. Pa. Ins. Co.'s App. (Pa.), 1 Cent. 551; 109 Pa. 489. Devise to son for life and after his death to his lawful issue then living, and in de- fault of issue to residuary legatees, gives residuary legatees contingent remainder. Faber v. Potice, 10 S. C. 376. Devise for life with remainder to any children living at her death, and in default to her brothers residing in this state. Devisee never had children, but brothers living in state at testator's death and her own death. Limitation to brothers was contingent. McElwee v. Wheeler, 10 S. C. 393. Devise to H. , and if she died before her husband, over to such of children as should be alive. A, took for life of husband and there was a contingent remainder to chil- dren. Security Co. v. Hardenberg, 53 Conn. 169; 1 N. E. 269. 7. LIMITATION OYER TO ISSUE OF CHILD DYING BEFORE DISTRIBUTION. See Vested Estates, sub. 5. Estates vested, when conversion of realty was to take place on death of life tenant. Vincent v. Newhouse, 83 N. Y. 505, digested p. 930. Citing, Teed v. Morton 60 N. Y. 503 ; Matter of Baer, 147 id. 354 ; Delaney v. McCormack, 88 id. 174 (183); Shipman v. Rollins, 98 id. 335. 43 330 X ESTATES IN EXPECTANCY. 28. CONTINGENT ESTATES-CASES. 7. LIMITATION OVER TO ISSUE OF CHILD DYING BEFORE DISTRIBUTION. In case of the death of any child before the testator, the will gave 'such legacies, estates, share or proportion of the one so dying unto his, her or their lawful issue, such issue to take the estate or share his, her or their parent would have been entitled to if living." The limitation over to the issue of any child dying before the distri- bution, was the limitation of a future contingent estate to such issue, but the ultimate vesting of the several legacies given primarily to the sons and daughters, could in no event be postponed longer than the life of the parent. On the death of any son or daughter before distribution, leaving issue, the share of the one so dying would immediately vest in such issue, and if there was no issue, it would go to his or her next of kin. See, Norris v. Beyea, 13 N. Y. 273; Trustees, etc., v. Kellogg, 16 id. 83. Robert v. Corning, 89 id. 241. 8. ESTATE VESTING AT TIME OF PAYMENT, DIVISION OR DISTRIBUTION. See Vested Estates, Subds. 4, 5. Notwithstanding the rule obtaining respecting a present gift vesting with the time of payment or possession postponed, as stated under Vested Estates, p. 260, yet where the only gift is a direction to execu- 1;ors or trustees to pay or distribute at a future time, the case is not to be ranked with those in which the payment or distribution only is de- ferred, but is one in which time is the essence of the gift, and until the happening of the future event it must necessarily remain uncertain whether the gift would exist at all and hence it is contingent. Smith V. Edwards, 88 N. Y. 92, 103, 104; Warner v. Durant, 76 id. 133, 136; De- laney v. McCormack, 88 id. 174, 183; Vincent v. Newhouse, 83 id. 505, 512; Hob- son v. Hale, 95 id. 588, 618; Shipman v. Rollins, 98 id. 311; Delafield v. Sliipman, 103 id. 463, 467, 468; Magill v. McMillan, 23 Hun, 193: Matter of Baer, 147 N. Y. '348. See Quackenbos v. Kingsland, 102 id. 128. See Matter of Cameron, 76 Hun, 429; SUangle v. Hallook, 6 App. Div. 55; Fargo v. Squires, id. 485. R, by his will devised certain real estate to his widow for life, and directed the executors to sell sufficient of his other real estate to provide a fund to be invested so as to produce a specified annuity to be paid her during life, etc., and after the widow's death he authorized the execu- tors to sell the residue of the real estate, add the proceeds to the amount invested, and after paying therefrom certain items specified he directed that the balance be " then " divided into eight parts, four of which he gave to certain religious associations not then incorporated, the lan- guage of the will showingf that the testator was aware of this fact and contemplated a future incorporation ; after his death, but before the death of the widow, the said associations were duly incorporated. II. FUTUEE ESTATES. 331 18. CONTINGENT ESTATES-CASES. 8. ESTATE VESTING AT TIME OF PAYMENT, DIVISION OR DISTRIBUTION. Construction : The legacies so given did not vest until tiie death of the widow and the creation of the fund provided for ; and, as the beneficiaries named were then capable of taking, the bequests were valid.' Also, it was sufficient if the legatees were so described that they could be ascertained and known when the right to receive the legacies vested." Shipman v. Bollins, 98 N. Y. 811, rev'g 83 Hun, 89. See, Warner v. Durant, 76 N. Y. 136; Vincent v. Newhouae, 83 id. 511; Smith v. Edwards, 88 id. 92; Delaney v. McCormack, id. 174; Hobson v. Hale, 95 id. 588; Delafleld v. Shipman, 103 id. 463; Matter of Denton, 137 id. 428, digested p. 861. Gr., by will, gave real and personal property to his executors in trust to pay to his daughter Emeline the rents and income thereof, and in case of her death leaving issue, to convey the remainder to her child or chil- dren and his or her heirs. Thereafter the will provided that in case of the death of Emeline without children, or issue, or descendants, but leaving her sister Matilda surviving, the trustees should apply the rents and income for the benefit and support of Matilda during her natural life, and upon her death convey the remainder " to the children and law- ful heirs of my brother Harmon Hendricks, deceased, to share and share alike per stirpes.^' Emeline died intestate and without issue, March 20, 1885, and Matilda died December 6, 1893. Harmon Hendricks died before the testatrix, leaving ten children surviving, who were all alive at the death of the testatrix, but all of them died before Emeline, some leaving wills under which any interest in the real estate in question which vested in them upon the death of the testatrix would pass. In a partition action none of the devisees of these children were made parties, but all the persons who answered the description of living heirs of Harmon Hendricks at the date of the death of Matilda, on December 6, 1893, were brought in and bound by the judgment. Construction : The testatrix did not intend that the remainder should vest upon her death in the then living children and heirs of her brother, but should be postponed until the time for division and distribution arrived, and then to vest in such persons as answer the description who survived. 'Vincent v. Newhouse, 83 N. Y. 505; Hoghton v. Whitgreave, 1 Jac. & Walk. Ch. 145; Power v. Cassidy, 79 N. Y. 602; Savage v. Burnham, 17 id. 561; Manice v. Manice, 43 id. 303; Warner v. Durant, 76 id. 136. 'Holmes v. Mead, 53 N. Y. 332; Lefevre v. Lefevre, 59 id. 434; Burrill v. Boardman, 43 id. 354. 332 " X. ESTATES IN EXPECTANCY. 18. CONTINGENT ESTATES-CASES. 8. ESTATE VESTING AT TIME OF PAYMENT, DIVISION OR DISTRIBDTION. The children of her brother were to take no interest whatever except upon the contingency of her daughter's death without issue. In the case of her daughter leaving issue, such issue would take the remainder absolutely. Hatter of Baer, 147 K Y. 348. From opinion. — " Wliere final division and distribution is to be made among a class the benefits of the will must be confined to those persons who come within the appropriate category at the date when the distribution or division is directed to be made. Bisson v. W. B. R. R. Co., 143 N. Y. 125; Goebel v. Wolf, 113 id. 405-411; Teed v. Morton, 60 id. 506 In re Smith, 131 id. 239, 247. In such cases the gifl is contmgent upon survivorship, and if it vests at all before the date of distribution it is subject to be divested by the death before that time of a person presumptively entitled to share in the distribution. While this rule is sometimes made to yield to indications of a contrary intent in the will, yet it may be said to be a general rule and there is nothing to be found in the will in question to prevent its full application. "Moreover, there is not in this devise any words of direct and immediate gift to the children or heirs of the brother, but a direction that the trustees should convey to them at a future time on a certain contingency. They were to take through the medium of a power in trust, and the time of the vesting of the Interest was thus de- ferred in form, at least, until the time of distribution." It is a case .then where, as the cases express it, ' ' futurity is annexed to the substance of the gift," and warrants the application of the principle that where a future interest is devised not directly to a given person, but indirectly through the exercise of a power conferred upon trustees, the devise is designed to be contingent, and survivorship at the time of distribution is an essential condition to the acquisition of an interest in the subject of the gift. This rule has been applied in numerous cases that do not differ essentially in the material facts from the one at bar. Smith v. Edwards, 88 N. Y. 92; Delaney v. McCormack, id. 174; Warner v. Durant, 76 id. 136; Vincent v. Newhouse, 83 id. 511; Delafleld v. Shipman, 103 id. 463; Hobson v. Hale, 95 id. 588. The will of the testator, having devised all his estate both real and personal to executors in trust, further directed that they collect the income therefrom and distri- bute it equally to his children until certain of them became of age, whereupon the whole estate was to be converted into money and divided equally between his said children; in case any child die before such period leaving issue, such (latter) child to take the share its parents would have taken if living. The shares in the estate did not become vested until the period of distribution and consequently the share of one having died previously thereto without leaving issue, never having vested, was to be divided among the survivors. Magill v. MoMillen, 23 Hud, 193. Devise to be divided into two equal parts for two grandchildren of testatrix; in- come to be paid each until thirty; then one-half principal to each; then income on balance until thirty-five, then balance of principal to be paid. Legal title vested in trustees and if beneficiary died before time limited for payment he lost the sum to be then paid and remainder took effect. ReRidgway, 4 Redf., N. Y., 226. J. P., by will, devised the residue of his estate to executors, in trust to pay rents to wife until his youngest child came of age. In case the youngest child came of age during the wife's life, tlie executors were to sell and after reserving an annuity for the wife, to divide the residue equally among his nine children, or else to make a similar division by partition. In case the youngest child came of age after the wife's death, then a sale and division equally among the nine, or else a partition and II. FUTURE ESTATES. 333 i:. CONTINGENT KSTATES-CASES. 8. ESTATE VESTING AT TIME OF PAYMENT, DIVISION OR DISTRIBUTION. similar division. "And in case any of my children shall die after me, and after hav- ing attained the age of twenty-one years, then the share, portion or interest of the child so dying shall go to the heirs, devisees or legal representatives of the child so dying." There was a declaration that the provision to the widow was in lieu of dower. All the nine children survived the testator, and attained their majority ; but four died afterwards and before the youngest had come of age. These were, (1) H., who left infant children and a husband, who administered and became their general guardian ; (3) B., who died intestate, leaving a widow and two infant children ; and one C. administered upon his estate ; (3) J. P., Jr., who left a widow and will, and gave all to her ; and (4) G. , who died intestate, without issue and unmarried, and his brother R. administered. The mother, wife of the testator, was alive. The executors had sold the estate. Construction : The nine children did not take vested interests until the youngest was of age. Drake v. Pell, 3 Edw. Ch. 266. When lands are to be equally divided among children when the youngest attains a majority, the proceeds of property to be used meantime to support wife and children, there is no vesting until youngest is of age. Kingman v. Harmon, 131 111. 171. When payment of a legacy was at a future time, or upon happening of contingent event, there being no provision for vesting legacy at present, the future time or happening of the contingency is the essence of the gift, unless contrary intent be shown, as by directing the application of the interest accruing on the fund in the interim to the use of the legatee. Willett v. Rutter, 84 Ky. 317.* Legacy, if legatee survive probate and codicil; if he dies before payment, over, goes over If he dies before payment. In re Spencer, 5 N. Eng. 326 ; R. I. Index B. B. 35. Devise to trustees to pay annuities and after ' ' final cessation " of annuities to make distribution. Held, estate did not vest in distributees until time fixed for distribu- tion, and trustees could not hasten time by purchasing annuities, nor could annui- tants assist the earlier distribution by accepting a gross sum in payment of their interests. Hamilton v. Rodgers, 38 Ohio St. 243. Devise in trust for ten years, at the end of that time to vest in and be distributed among his three sons and their heirs, but if either should die leaving no issue, over to survivors ; estate did not vest for ten years, and widow of son dying before took no interest. Blanchard v. Maynard, 103 111. 60. 9. DEVISE TO B. FOB LIFE, REMAINDER TO B.'S ELDEST SON, VESTS IN B.'S ELDEST SON AT HIS BIRTH, p. See Vested Estates, sub. 6. Devise to B. for life, remainder to B.'s eldest son, creates a contingent remainder until the birth of B.'s eldest son before the termination of the life estate, when the remainder becomes vested. See Vested Estates, p. 274. Devise for life to B. ; remainder in tail to B.'s eldest son. Construction : (1) Remainder was contingent until the birth of B.'s eldest son, before the termination of the life estate, when it became vested. 334 X. ESTATES IN EXPECTANCY. 18. CONTINGENT ESTATES-CASES. 9. DEVISE TO B. FOR LIFE, REMAINDER TO B.'S ELDEST SON, VESTS IN B.'S ELDEST SON AT HIS BIRTH. (2) Estate tail, although a future estate, was changed by act of 1786 abolishing entails into fee, and, upon death of B.'s eldest son, descended to his heirs. Wendell v. Crandall, 1 N. Y. 491 ; s. c, 2 Denio, 9. See Lawrence v. Bayard, 7 Pai. 70. Where land is devised to one for life, remainder to his oldest surviving son in fee, the remainder, during the continuance of the particular estate, is contingent ; and a quit claim deed of the land, made by the oldest son of the tenant for life, in his father's lifetime, will not convey the contingent remainder ; nor will the oldest son, if he survive the father, be estopped by the deed from claiming under the limitation in remainder. But if the oldest son of the tenant for life make a deed before hia father's death, purporting to convey his contingent interest under the devise, and in the deed cove- nant against all claims made by or under him, he will be estopped by his covenant to claim the land at the death of his father, and the estoppel will operate to convey the remainder to his grantee. Robertson v. Wilson, 38 N. H. 48. Devise of specified land to W. for lite and W.'s oldest male heir and his heirs and assigns after W.'s death, and residue of estate to W. and C. jointly. After testator, W.'s son died ; then W.'s daughter, both children without issue. The devise to W.'s oldest male heir was contingent and land passed under residuary clause. Alverson v. Bandall, 13 R. I. 71. 10. ESTATES ON CONTINOENCT OF PREVIOUS TAKER DYING TINDER A CERTAIN AGE. Watts V. Ronald, 95 N. T. 236. See Vested Estates, p. 374. (a) Estates contingent on taker arriving at a certain age. Emmons v. Cairns, 3 Sandf. Ch. 369 ; Jackson v. Winne, 7 Wend. 47. See Fargo v. Squiers, 6 App. Div. 485 ; Matter of Lehman, 3 id. 531. J., by will, gave a sum equal to about one-third of her estate to her husband, and use and benefit of residue until M. S., her oldest daugh- ter, became of age; and directed then that such residue should be divided equally between her daughters M. S. and M. each to come into possession of her share at the age of twenty-one, the husband to have the use of M.'s sbare until her arrival at that age. In case of the death of either of the daughters, before arrival at the said age, "the one living shall receive the share of the one deceased, but in the order of the ages as above described." In case of the death of the two daughters before said age, their respective shares should be divided equally between the testator's "brothers and sisters, or their immediate heirs, but in the order above mentioned." M. S. died unmarried intestate after sbe arrived at the age of twenty-one, and thereafter and before such age M. died. Construction : The share of M. S. passed upon her death, to her next of kin, but the II. FUTUEE ESTATES. 336 18. CONTINGENT ESTATES-CASES. 10. ESTATES ON CONTINGENCY OF PREVIOUS TAKER DYING UNDER A CERTAIN AGE. share of M. went to the brothers and sisters of the testatrix. Watts v. BonaU, 95 N. Y. 226. From opinion. — "The phraseology of the will, 'iu case of the death of my two daughters before they arrive at the age of twenty-one years,' of itself would seem to Import that both the daughters must die before arriving at full age in order to en- title the brothers and sisters of the testatrix to a share in her estate, but if taken literally the words are susceptible of the interpretation, that as one of the daughters did die before arriving at the age of twenty-one years, the death of both of them did happen before both of them arrived at that age. * * * * As one of them did not live until that time and as literally both did die before both arrived at the age of twenty-one years, it would seem to be a fair and legitimate inference that the tes- tatrix meant that the interest of the one who did not arrive at full age before her decease should pass to her own brothers and sisters." A testator gave to his wife for life all the income, rents and profits of his real and personal estate; and after her death gave the like interest to T. for life, out of which she was to support three infants, W. , J. and E. Next, he gave the whole rents and income after her death to W., J. and E., for life, as joint tenants; and then gave the residue of his estate to E. absolutely and in fee, first providing for her fifty thousand dollars when she should arrive at age. Then followed a provision that if E. should die without children or issue, that the whole residue of his estate should go to his cousins. Construction: The legacy of fifty thousand dollars to E. was contingent on her attaining her full age. Emmons v. Cairns, 2 Sandf. Ch. 369. Will devised real estate to three sons, adjudged to be illegitimate, " if they should live to come of age," during their minority the jjroperty went to the heir at law, though it seems that the heir in such case takes only as trustee, and not in his own right. Jackson v. Winne, 7 Wend. 47. 11. FEES LIMITED ON FEES. See, Vested Estates, sub. 12. A contingent remainder in fee may be limited on a remainder in fee. Manice v. Manice, 43 N. Y. 305 ; Radley v. Kuhn, 97 id. 36 ; Nellis v. Nellis, 99 id. 505. A contingent remainder in fee may be limited on a remainder in fee. Manice v. Manice, 43 K Y. 305, digested p. 423. Devise to executors in trust to receive rents and profits and there- from pay $700 to each of two grandsons when of age, in case of the death of either, to the survivor; trust to continue until testator's sonC. became twenty-five years of age, when he was to have net income less the $1,400 for lif6 ; if he left children, estate to become theirs in fee when of age. C, as owner of the next eventual estate, took surplus of the income arising during trust term ; C.'s children, if any, would take 836 X. ESTATES IN EXPECTANCY. 18. CONTINGENT ESTATES -CASES. 11. FEES LIMITED ON FEES. fee, and in case of their death under age, the fee would vest in their heirs ; if 0. died without issue, the fee would vest in testator's heirs. Had there been a contingent remainder, limited on the fee, to take ef- fect in case of the first devisee dying before twenty-one, the estate would have vested in the first devisee, defeasible by condition subsequent ; Manice v. Manice, 43 N. Y. 380 ; Roome v. Phillips, 24 id. 463 ; and suspension of the absolute power of alienation during the minority of the first remainderman would be authorized by statute. (1 E. S. 723, sec. 16; Real Prop. L. sec. 32.) Radley v. Kuhn, 97 K Y. 26, digested p. 443. Hennessy v. Patterson, 85 N. Y. 91, digested p. 321. A devise was good as a contingent limitation on a fee. Nellis v. Nellis 99 K Y. 505, digested p. 352. Jackson v. Blansliam, 3 Johns. 291. 13. ALTEKNATITB LIMITATIONS. Two or more future estates may be created, to take effect in the al- ternative, so that if the first in order shall be void or fail to vest, the next in succession shall be a substitute for it and take effect accord- ingly. Schettler v. Smith, 41 N. Y. 838 ; Manice v. Manice, 43 id. 305 ; Kiah v. Grenier, 66 id, 220 : Hennessy v. Patterson, 85 id. 91, 89, 100 ; Savage v. Burnham, 17 id 561; Postv. Hover, 33 id. 598, 598 ; Henderson v. Henderson, 118 id. 1 ; Cruikshank V. The Home, id. 357 ; Jarman on Wills, 3d Am. ed., 369 ; Lewis on Perpetui- ties, 501-3 ; Danav. Murray, 133 N. Y. 604; Purdy v. Hayt, 93 id. 446; Hennessy v. Patterson, 85 id. 91. 13. ESTATES LIMITED ON MOKE THAN TWO SUCCESSIVE LIFE ESTATES. Estates limited on more than two successive life estates. Section 33 of the Real Prop. L., post, p. 365, provides that " successive estates for life shall not be limited, except to persons in being at the creation thereof, and where a remainder shall be limited on more than two suc- cessive estates for life, all the life estates subsequent to those of the two persons first entitled thereto shall be void, and upon the death of those persons the remainder shall take effect, in the same manner as if no other life estates had been created." This section has reference to vested estates only, and not to a contingent remainder limited on more than two successive life estates upon an event that may not be terminable within the first two lives, is void. Amory v. Lord, 9 N. Y. 403, 419, digested p. 412. D., by will, gave his real estate to his sisters J. and 0. " during their respective lives," and after their deaths directed it to be sold by the II. FUTURE ESTATES. 337 18. CONTINGENT ESTATES-CASES. 13. ESTATES LIMITED ON MORE THAN TWO SUCCESSITE LIFE ESTATES. executors, the proceeds to be invested, and the income to be paid by them to E. for her life, and the principal to be divided equally among any children " she may leave ;" if none, then the principal to go to other persons. The two sisters and E. survived D. J. died before 0. and E. survived them. Construction : Sisters took, as tenants in common, life estates with cross remainders ; each took a distinct and several freehold for life in one-half of the farm. The remainder given to the children of E. was contingent Upon the death of J. and the consequent termination of her life es- tate, a second life estate vested in C, and upon her death the limit of the estate, as to that share, was reached, and hence the third attempted life estate in E. was void. The remainder, as to the one-half in which J. had a life estate, to E.'s children or others could not take effect at the death of C, because it could not be ascertained until the death of E. who would take, and hence the remainder was void, and the title to the undivided half of the land, subject to the power of sale, descended to the heirs at law. In re Ryder, 11 Paige, 185 ; Savage v. Burnham, 17 N. Y. 571 ; Car- michael v. Carmicbael, 4 Keyes, 346. The devise to E. was valid as to the share of C, as upon her death but one life estate therein had run, and she was entitled to the income from one-half of the proceeds during life, and the remainder limited thereon was valid. A remainder in fee is not invalid because limited in favor of persons not in being when the limitation is created, or not ascertainable until the termination of the precedent estate, provided the contingency upon which it depends must happen within or not beyond the prescribed period for the vesting of estates. Gilman v. Reddington, 24 N. Y. 9 ; Manice v. Manice, 43 id. 303 ; Purdy v. Eayt, 92 id. 446. See Danav. Murray, 133 N. T. 617-618. Where, by a devise, a remainder is limited upon three or more suc- cessive estates for life, all the life estates subsequent to the first two are void, but their illegality does not affect the prior ones; these, by neces- sary implication from the statute in relation to the division and creation of estates (1 R. S. 721, sec. 17), are valid, and the remainder takes effect upon their expiration, in the same manner as if no other life estates had been created. 43 338 X. ESTATES IN EXPECTANCY. 18. CONTINGENT ESTATES-CASES. 13. ESTATES LIMITED ON MORE THAN TWO SUCCBSSIVB LIFE ESTATES. The will provided as follows : " The whole of my property, personal as well as real estate, stock and everything else, I give to my wife dur- ing her lifetime. My estates, rights and titles are to be in the occu- pancy of my daughter, Eose Ellen, and her hu.sband, for the benefit of the family. After the death of the mother, my estate is to go to Rose Ellen, with the appurtenances thereof. In case she has no children, -and should die before her husband, he is to have the benefit of it during his lifetime. At his death it is to be divided equally among the rest of my children. In case Rose Ellen has children, it is secured to her and to them forever." Woodruff x. Gook, 61 IST. Y. 638; 47 Barb. 304. Distinguishing Amory v. Lord, 5 Seld. 403. From opinion. — " The will in question contained a provision for the creation of a third estate for life in the husband of Rose Ellen Cook after her death on the contin- gency of the happening of that event without having had children, if he survived her. That provision was unauthorized and void, as is declared by said section 17, but its illegality did not affect the prior life estate of the widow of the testator, or of Mrs. Cook. On the contrary, their validity was recognized and necessarily implied by the declaration, that the remainder intended to be limited on the third estate for life (declared void) should, upon the death of the two persons first entitled to such an es- tate, take effect in the same manner as if no other life estate had been created. In other words, the will was to be construed as if the devise to the husband of Mrs. Cook had not been contained therein, and that the remainder, in case of her death, without having had children, should, immediately on the happening of that event, be divided equally among the other children of the testator. It is evident from the terms of the will that Mrs. Cook was to be entitled to an estate during her life after her mother's death, and that the testator's other children were only to acquire an estate — ' to be divided equally ' among them — on the death of Mrs. Cook, and then only in case she had no children. * * * "The views above expressed and the decision herein of the court below are not in- consistent with the decision in Amory v. Lord, 5 Seld. 403, cited and relied oa by the appellants' counsel. There the devise by the testator of his estate was to trustees for the purposes of the will — in trust, among other things, to rv.'ceive the rents and profits of the real estate and apply them to the use of tbe beneficiaries provided for during the continuance of a term that, as was said by Judge Gardiner, ' endured, and was intended to endure, for three lives at least,' and therefore, contravened the provisions of the statute, which declare that the absolute power to sell real estate shall not be suspended by any condition or limitation whatever for a period longer than two lives in being at the creation of the estate, and was consequently void. The parties there entitled to the rents had no legal estate in the land from which they were to be paid, but were to receive them from the trustees to whom the property was devised, and ' through the trust ; ' and it is well stated in the headnote of that case, as a result of the opinions therein, that ' by said devise the widow and children of the testator, and their surviving wives and husbands, did not take successive legal estates, in which case the first two would be valid and the others void ; but mere equities, all dependent upon the trust, which, being void, the eqiiitable interests all failed.' That important distinction between the cases not only shows that the decision in that case is not ad- verse to, but in entire harmony with, that of the court below in the case at bar." II. FUTURE ESTATES. 339 18. CONTINGENT ESTATES— CASES. 14. REMAINDER TO LIFE TENANT IN THE EVENT OF MARRIAGE AND ISSUE. Delaney t. McCormack, 88 N. Y. 174. Devise to J., son, for life and in fee in case J. married and had issue : if J. died without having had lawful issue, direction that executors should sell real estate and distribute proceeds among testator's " next of kin and personal estate according to the laws of the state of New York," etc. Testator left J., also a nephew, and four nieces surviving him ; the nieces died leaving children before J., who died without having had issue. Construction : 1. The executors took an imperative power in trust to sell or dis- tribute as directed, and upon death of surviving trustee the court could appoint person to execute the power. 1 E. S. 732, sees. 74, 77 ; IE. S. 734, sees. 94, 96. 2. The " next of kin " were those who were so at the time of dis- tribution,' viz., at the death of J., as the gift was money and as the direc- tion for conversion was absolute, and the nephew was such " next of kin." 3. J. took a base fee (which the opinion states as the preferable con- struction) or a life estate and remainder, contingent on the birth of issue. Delaney v. McCormack, 88 N. Y. 174. 15. ESTATES DEPENDENT ITPON FIRST TAKER'S MARRIAGE. See Vested Estates, sub. 13. By the will of D., who died in 1869, his widow took a fee in certain real estate, determinable upon her remarriage, his infant daughter C, a contingent remainder in fee, depending upon such remarriage. Dodge V. Stevens, 105 N. Y. 585 ; s. c, 94 id. 209. Eev'g 40 Hun, 443. Devise to a widow so long as she remains unmarried — the estate vests in the re- mainderman on the day of her marriage. Aldrich v. Funk, 48 Hun, 367. 16. CONTINGENT REVERSIONS. Seep. 331. A general residuary devise carries every real interest of the testator whether known or unknown, immediate or remote, unless it appears to be manifestly excluded by other parts of the will; the presumption to include obtains. K., by will, after certain specific legacies, gave all the residue of his property and estate, real and personal, of every name, nature and des- ' Warner v. Durant, 76 N. T. 136 ; Smith v. Edwards, 88 id. 93 ; Vincent v. New- house, 88 id. 511; Teed v. Morton, 60 id. 506; Matter of Young, 145 id. 538. S40 X. ESTATES IJf EXPECTANCr. 18. CONTINGENT ESTATES-CASES. 16. CONTINGENT EBVKKSIONS. cription whatsoever to hi& executors, in trust, to receive and pay over the income, less expenses, etc., to the testator's wife for life, and upon lier death " to assign, transfer and set over " all his " real estate " not therein and thereby disposed of, to appointees of his wife, and in de- fault of appointment by her, to her heirs at law. Upon the death of his wife he devised certain premises to two devisees named for life, and upon their deaths respectively to their " issue then surviving, and the issue of such of them as may have then departed this life." The two devisees died after the testator, unmarried and without issue. Construction : The two devises did not dispose of the whole estate of the testator in the lands, but there was left in him a contingent reversion in fee ex- pectant upon the termination of the life estate and the failure of issue of the life tenants, which, upon their deaths without issue, was changed into an absolute fee, which not having been specifically disposed of, went to the appointees of the testator's widow, and the testator's heirs at law took nothing. Floyd v. Carow, 88 N. Y. 560. 17. CONTINGENT KKMAINDERS TO BROTHERS AND SISTERS — WHEN HALF BLOOD DO NOT TAKE. H. left surviving him six grandchildren; he bequeathed to each $10,000 to be paid on their attaining respectively the age of twenty- five. "In the event of the decease of either of the said grandchildren prior to attaining the age of twenty-five," the will provided that " the share of such deceased shall be equally divided between the surviving grandchildren." E., who was a widower at the time of his father's death, thereafter married and had two children born before the death, of E. Held, that said two children were not entitled to share in the legacy given to E., but that the gift was to the survivors of the six legatees. Matter of Smith, 131 K Y. 239. See "Wood v. Mitcham, 93 N. T. 375, digested p. 331. 18. LIMITATION OYER IN DEFAULT OF EXERCISE OF POWER OF DISPOSI- TION BT FIRST TAKER. Crooke v. County of Kings, 97 N. Y. 431; Dana v. Murray, 123 id. 604; Delafield V. Shipman, 103 id. 463; Delaney v. McCormack, 88 id. 174. See, Vested Estates, subs. 16 and 17. In case a power of disposition was not exercised by life tenant, a re- mainder vested in her children at her death — this is an executory devise at common law, or a contingent remainder, or conditional linitation un- II. FUTURE ESTATES. 341 18. CONTINGENT ESTATES-CASES. 18. LIMITATION OVER IN DEFAULT OF BXEKCISB OF POWER OF DISPOSITION BY FIRST TAKER. der Revised Statutes. Croohev. County of Kings ^ 97N.Y. 421, digested p. 444. Citing, Pell v. Brown, Oro. Jac. 590; Jackson v. Edwards, 33 Wend 498; Chrystie V. Phyfe, 19 N. Y. 345; Gilman v. Reddington, 34 id. 16; Terry v. Wiggins, 47 id. 513, 518. Remainder limited on a life estate in a deed of trust, contingent upon, the failure of grantor to execute a power of appointment reserved in the deed, took eflfect by failure to make a valid execution of such power. Bana v. Murray, 122 K Y. 604, digested p. 461. See, Hillen v. Iselin, 144 N. Y. 365, 376; Purdy v. Hayt, 93 id. 446; Hawley v. James, 5 Paige, 318. 19. CONTINOENT INTERESTS OF PERSONS, BENEFICIARIES, IN PROPERTY HELD BY TRUSTEES UNDER AN EXPRESS TRUST — WHETHER NECESSARY PAR- TIES TO ACTION FOR FORECLOSURE. Trust to pay income to grantor and at her death to " convey the said lands and every part of them in fee simple " to her children " living at her decease and the surviving childi'en of such of them as may be dead," conferred no interest in the estate during the grantor's life upon any member of the class of intended beneficiaries and so they were not neces- sary parties to a foreclosure of a mortgage existing at the time of the grant. Townshend v. Frommer, 125 N. Y. 446. Followed in Curtis v. Murphy, 139 N. Y. 645, distinguished in Enowlton v. Atkins, 134 id. 318, 317; Campbell v. Stokes, 143 id. 33, 30. But see Mead v. Mitchell; 17 N. Y. 310 Moore v. Appleby, 108 id. 337, afC'g 36 Hun, 368; Jenkins v. Fahey, 73 N. Y. 355; Jordan v. Poillon, 77 id. 518; Lockman V. Reilley, 39 Hun, 434; Williamson v. Field, 3 Sandf. Ch. 533. See p. 283, 315. 20. EXPECTANT CONTINGENT ESTATES ARE ALIENABLE AND DESCENDIBLE.' Hennessy v. Patterson, 85 N. Y. 91, 103; Moore v. Littel, 41 id. 66. See p. 251. See also Luflfbarrow v. Koch, 75 Ga. 448; Buck v. Lantz, 49 Md. 439; Freeholders V. Henry, 3 Cent. 686; Halstead v. Westervelt, id. 466; 41 N. J. Eq. 100; Mathews V. Paradin, 74 G-a. 533; Wickersham's Appeal, 1 Cent., Pa., 435; Saint Clara F. Academy v. Sullivan, 116 111. 875; Loring v. Arnold, 15 R. I. 438; 8 N. E. 537. When specific realty, which is subject to a mortgage, is devised or conveyed to a trustee to be converted into money at a future day, and divided between specified persons, they have a vested and equitable in- terest in the subject of the trust and are necessary parties to an action for foreclosure of the mortgage; but where the interest of such persons is contingent, they are not necessary parties to such an action. JJ. S. Trust Go. V. Boche, 116 K Y. 120, 180. C, by his will, devised one-third of his real estate to his son J., one- ' See, also, Pickert v. Windecker, 73 Hun, 476; but see Johnston v. Spicer, 41 N. Y. 43. 342 X ESTATES IN EXPECTANCY. 18. CONTINGENT ESTATES-CASES. 30. EXPECTANT CONTINGENT ESTATES ARE ALIENABLE AND DESCENDIBLE. third to his son J. 0., and the remaining other third to J. C, provided he sliould survive his wife or should have a lawful child who should live to the age of twenty-one ; in case neither of these events happened, then he gave the said one-third to J. J. deeded all his estate, right and interest in certain premises of which the testator died seized to J. C; the latter died before his wife, and he had no child who lived to the age of twenty-one. Construction : J. had a future expectant estate in the one-third, not absolutely de- vised to him or his brother, which was alienable, and this estate, with the one-third absolutely devised to him, was conveyed by his deed to J. G. 1 E. S. 723, sec. 10 ; 725, sec. 35. Griffin v. Shepard, 124 N. Y. 70, aS'g 40 Hun, 345. From opinion. — "The contention upon the part of plaintiflE is that the interest or estate of Joseph was a mere possibility, and so not alienable. The contention of the defendants is that the estate of Joseph was an expectant estate and so alienable under sec. 35, eh. 1, title 3, part 3, R. S., which provides that ' expectant estates are de- scendible, devisable, and alienable in the same manner as estates in possession.' Law- rence V. Bayard, 7 Paige, 76; Pond v. Bergh, 10 id. 140; Beardsley v. Hotchkiss, 98 N. T. 301, 313, 314; Crooke v. County of Kings, 97 id. 421, 449; Ham v. Van Orden, 84 id. 357, 370; Miller v. Emans, 19 id. 384. "The question for solution, therefore, is, what was 'the character of the estate in this one-third devised to Joseph upon the failure of these contingencies to occur 1 " The chapter of the Revised Statutes above referred to contains the definitions and nomenclature of the various estates in land. ' An estate in expectancy is where the right to the possession is postponed to a future period. Sec. 8, R. 8., supra; Ham v. Van Orden, 84 N. Y. 357. Judge Danforth, in the opinion in that case, says : ' It does not seem necessary to determine whether an interest at once vested in her, or whether time and the happening of the specified event were of the substance of the gift, and prevented it from vesting until the event happened. In either case she ac- quired an interest (R. S. 723, art. 1, title 2, part 3, oh. 1, sec. 10), although the right to possession was postponed to a future period and depended upon the contingency" of the death of Wessel without children. This did not prevent the creation of the estate, but rendered it liable to be defeated. Art. 1, ch. 1, title 3, part 3, vol. 1, R. 8. 735, sec. 31. It was an estate in expectancy (sec. 9, p. 735, id.), however, and could not be destroyed by any alienation, or other act of Wessel or his trustees (sec. 33, id.), and upon his death, without children, would become absolute in the plaintiff. It was, therefore, alienable by her to the same extent as it in possession (sec. 35, id.), and whether it be deemed vested or contingent.' Moore v. Littel, 41 N. Y. 66; Crooke V. County of Kings, 97 id. 431 ; Hennessy v. Patterson, 85 id. 91 ; Nellis v. Nellis, 99 id. 505. " And estates in expectancy are divided into future estates and reversions. Sec. 10, R. S., supra. 'A future estate is an estate limited to commence in possession at a future day,- either without the intervention of a precedent estate, or on the determi- nation by lapse of time or otherwise, of a precedent estate created at the same time.'' II. FUTURE ESTATES. 343 18. CONTINGENT ESTATES-CASES. 20. EXPECTANT CONTINGENT ESTATES ARE ALIENABLE AND DESCENDIBLE. Crooke v. County of Kings, 97 N. Y. 449. 'Future estates are either vested or contin- gent. They are vested when there is a person in being who would have an immediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate. They are contingent when the person to whom or the event upon which they are limited to take effect remains uncertam.' Sec. 13; 97 N. Y., supra; Beards- ley V. Hotchkiss, 96 id. 203-214, " From these definitions and characteristics of estates it follows that John 0. had an estate in possession and in fee until the happening of at least one of the events specified in the will of Stephen; and Joseph also had a future expectant estate in the same one-third, if said events or contingencies should not happen, and the estates of both of them were created at the same time and under the will of Stephen, their father. Sec. 10, E. S., mpra." Second of two consecutive life estates vests and is transmissible and subject to exe- cution. LufEbarrow v. Koch, 75 Ga. 448. Contingent remainders pass to those persons who are heirs at law, when the con- tingency happens. Buck v. Lantz, 49 Md. 439. Devise in trust for use and support of lunatic daughter and whatever remained at her death to S. Daughter's interest can not be reached to satisfy an execution against her. Chosen Freeholders of Hanterdon v. Henry, 3 Cent. 686. See Halstead v. Wester velt, id. 466; 41 N. J. Eq. 100. But devise to daughter for life for her separate use and benefit, not to be sold from her, but to remain in her possession to enable her to raise and educate children, etc., and then over, gives life estate subject to execution. Mathews v. Paradin, 74 Ga. 533. Trust fund created by will is to become part of residuum on death of beneficiary; contingent interest is transmissible. Wickersham's Appeal, 1 Cent., Pa., 425. Interest in possession, reversion, or remainder, is devisable. Saint Clara F. Academy V. Sullivan, 116 111. 375. Remainder dependent on death of another without issue, is devisable. Loring v. Arnold, 3 N. E. 527 ; 15 R. I. 428. 21. ULTIMATE LIMITATION TAKING BPlfBCr, ALTHOUGH THE PRECISE EVENT PROVIDED POR DOES NOT HAPPEN. Where the meaning of the testator clearly is that the ultimate limita- tion should take effect on the failure of a preceding gift, and that gift does fail, but tlie language in which the limitation over is expressed; does not in terms apply to the event which has happened, the limita- '■ tion over nevertheless takes effect. In an action brought to determine claims to real estate both the plaintiff and defendant claimed under a clause in the will of Eckford Webb, which, in substance, gave to the plaintiff, provided she remained with him, Eckford Webb, until the time of his death, a house and lot and. $5,000 and the furniture of the house, and it was stated that the bequest was made to the plaintiff for her services and in the expecta- tion that she would remain with the testator as long as he lived. There was a further provision that, if she did not remain with the testator up 344 X. ESTATES IN EXPECTANCY. 18. CONTINGENT ESTATES-CASES. 31. ULTIMATE LIMITATION TAKING EFFECT, ALTHOUGH THE PKECIBE EVENT PROVIDED FOR D0E8 NOT HAPPEN. to the time of his decease, the devise should be void and the house and money and furniture should pass to the defendant. The defendant, who was not an heir at law of the deceased, and could have no title to the property in dispute except under the will, interposed an answer alleging that the provision in favor of the plaintiS was procured by fraud and undue influence and claimed title under the gift over. The trial court ruled that if it were shown that the provision in favor of the plaintiff was void, the gift over to the defendant would not take effect since it appeared that the plaintiff had remained with the decedent up to the time of his death. Held, that the decision was erroneous. That in case the devise to the plaintiff failed, for any reason, the substituted devise took effect. Ranhen v. James, 1 App. Div. 272. From opinion — "We think that, under a proper construction of the will, in case the devise to the plaintiff failed for any reason, the substituted devise to the defend- ant took effect. This seems to be the rule laid down by a substantially unbroken line of authorities. 2 Jarman on Wills, 1643, 5th Am. ed. , 839. " The earliest reported case is that of Jones v. Westcomb, 1 Equity Abr. 345. The testator, by his will, devised to his vrife for life and after her death to the child with which she was then pregnant, and if such child died before it came to the age of twenty-one, then there was a devise over. The testator was mistaken as to the con- dition of his wife ; she was not pregnant. In that case it was held that the gift over took effect on the death of the wife. The King's Bench followed this decision. 3 Strange, 1093. "In Btatham v. Bell, Cowper, 40, the testator was in like error, that his wife was with child, and the devise over was to take effect on the death of such child. It was held that the devise over was operative, though as matter of fact the wife was not pregnant and, of course, there was no such child. " In Avelyn v. Ward, 1 Vesey, 430, the testator devised his real estate to his brother U., on the express condition that within three months after his decease U. should execute and deliver to the testator's trustee a general release of all demands which he might claim on the estate. But if his brother should neglect to give such release, the said devise should be null and void, and in such case he devised the real estate to W. The testator's brother died before the testator. It was held that the land should not go to the heir at law, but to the devisee over. " In MacKinnon v. Sewell, 5 Simons, 78 ; aff'd 3 Mylne & Keen, 203, the gift was of a more complicated character, but the principle involved was the same as that in the preceding cases. The chancellor, in discussing the doctrine of these cases, says ; ' In other words, no real diffeience is made in the result, for the event contemplated has not happened, but something equivalent has taken place ; that is, something which made it impossible that the result could be otherwise than that upon which the executory limitation was made to depend. Almost all the cases are those of II. FUTURE ESTATES. 345 18. CONTINGENT ESTATES-CASES. 21. ULTIMATE LIMITATION TAKING EFFECT, ALTHOUGH THE PRECISE EVENT PROVIDED FOR DOES NOT HAPPEN. double contingencies, the second being of a negative nature, so that the first not happening amounts to the same thing as if both had happened. ' " But the clearest statement of the rule is to be found in a case where it was held the rule did not apply. In Lenox v. Lenox, 10 Simons, 400, the vice-chancellor "writes : ' In a case where the meaning of the testator clearly is that the ultimate limitation should take effect on the failure of a preceding gift and that gift does fail, but the language in which the limitation over is expressed does not in terms apply to the event which has happened, there, in my opinion, the limitation over should take effect.' " A conditional limitation over of a legacy, upon some specified event, condition or circumstance, takes effect only upon the occurrence of the precise event specified. Taylm- v. Wendel. 4 Bradf., N. Y., 324, 333. See Humberstone v. Stanton, 1 Vesey & Beames R. 385 ; Doe v. Brabant, 3 Bro. C. C. 393 ; Williams v. Jones, 1 RUss. 0. R. 517. 22. ESTATES DEPENDENT UPON DISCBETIONART ACTION OF TRUSTEES. The extent of the share of the estate, if any, which certain persons might take, depended wholly upon the decision of the trustees respect- ing the moral character of tlie proposed beneficiaries. Such decision as to moral character, if made in good faith by the trustees, could not be controlled by the court, as the testator constituted them the sole judges of the fact, and upon their decision the vesting of the remain- ders depended. Hawley v. James, 5 Paige, 318, 468, 469. See, Thompson v. Conway, 23 Hun, 621; Colvin v. Young, 81 id. 116; Wetmore v. Truslow, 51 N. Y. 338; Tilden v. Green, 130 id. 29, 79-81. Where a testator leaves to his son the income of $1,000, to be paid to him by his executors during a certain time, and directs that, at the expiration of that time, if the son has reformed, he be paid the $1,000, and otherwise, that it be paid over to other parties; lield, that the son dying before the expiration of the time without having re- formed, it was the intention of the testator that the prohibitionary period should end with tlie life of the son, and that the $1,000 never vested in the son. Smith v. Bocke- felkr, 3 Hun, 295. 23. WHEN WORD "THEN" REFERS TO THE HAPPENNDSG OP THE CONTINGENCY. Hennemy v. Patterson, 85 N. Y. 108, 104, digested, p. 300. 24. WHEN PROVISION "AT THE DEATH OF MT WIFE, I GIVE AND DEVISE " IN- TENDS VESTING AT WIPE'S DEATH. See p. 299. A testator may so dispose oi his real estate that it will, upon his death, vest in his heirs by operation of law, subject to be divested upon the happening thereafter of a contingency provided for in the will. The will of D., after a devise to his wife of a life estate in all his t-eal estate, contained a devise of certain lands, commencing as follows : "At the death of my wife, I give and devise," etc. The devise was to 44 346 X. ESTATES IN EXPECTANCy. 18. CONTINGENT ESTATES-CASES. 24. WHBN PROVISION "AT THE DEATH OP MY WIFE, I GIVE AND DEVIf5B " IN- TENDS VESTING AT WIPE'S DEATH. a religious society, the land to be used as a parsonage ; the devise pro- vided that whenever the society ceased to so use it, it should revert to the testator's heirs. The society was unincorporated at the time of the testator's death, but was incorporated during the life of his widow. Construction : The terms of the will showed the intent of the testator to be to vest the estate in the devisee at the time of, and not before the death of the wife, and if the devisees should at that time be able to take, the devise was valid, the title to the remainder being in the heirs from the time of the testator's death to that of his widow, subject to be divested if the devisee at the time of her death was an existing corporation capable of taking, in which event the title would vest in it. Lougheed v. The Dyheman's Baptist Church, 129 K Y. 211, aff'g 58 Hun, 364. Citing, Burrill v. Boardman, 43 N. Y. 254; Shipman v. Rollins, 98 id. 311; Leonard V. Burr, 18 id. 96. See Plymouth Soc. of Milford v. Hepburn, 57 Hun, 161. See p. 299. 19. DEATH-ESTATES ON CONTINGENCY OF. 1. When there is a devise or bequest simpliciter to one person, and in case of his death, to another, death in lifetime of the testator is in- tended. Vanderzee v. Slingerland, 103 N. Y. 47 ; Kelly v. Kelly, 61 id. 47 ; Fowler v. In- gersoll, 127 id. 472; N. Y., L. & W. R. Co. v. Van Zandt, 105 id. 92; Nelson v. Rus- sell, 135 id. 137; Mullarky v. Sullivan, 136 id. 227 ; Stokes v. Weston, 142 id. 433 ; Newcomb v. Lush, 84 Hun, 254. 2. Where there is a devise or bequest simpliciter to one person abso- lutely, and devise over dependent not upon the event of death simply, but upon death in connection with some collateral event, as death with- out issue or without children, the words of contingency refer to death in the lifetime of the testator. Vanderzee v. Slingerland, 103 N. Y. 47; Livingston v. Greene, 52 id, 118; Embury V. Sheldon, 68 id. 227; Quackenbos v. Kingsland, 102 id. 128; Matter of N. Y., L. & W. R. Co. V. Van Zandt, 105 id. 89; Fowler v. IngersoU, 127 id. 472; Mead v. Mabin, 131 id. 255; Benson v. Corbin, 145 id. 351. 3. The last two rules have no application, when the first devisee or legatee takes a life estate, but is applied only when the prior gift is ab- solute and unrestricted. Fowler v. IngersoU, 127 N. Y. 473; Buel v. Southwick, 70 id. 581 ; Nellis v. Nellis, 99 id. 505 ; Matter of N. Y., L. & W. R. Co. v. Van Zandt, 105 id. 89 ; Mullarky v. Sullivan, 136 id. 227 ; Matter of Denton, 137 id. 428 ; Matter of Baer, 147 id. 348. II. FUTURE ESTATES. 347 19. DEATH-ESTATES ON CONTINGENCY OF. 4. Kule two does not apply, when a point of time other than the death of the testator is mentioned, to which the contingency can be re- ferred, or when a life estate intervenes, or the will indicates a contrary intent. Matter of Denton, 137 N. T. 428, and cases cited. See Vanderzee v. Slingerland, 103 id. 47; Matter of N. Y., L. & W. R. Co., 105 id. 89; Fowler v. Ingersoll, laT id. 472; Mead v. Maben, 131 id. 255; Mullarky v Sullivan. 136 id. 227. 5. Words of survivorship and gifts over on the death of the primary beneficiary, in absence of contrary intent, refer to death before the tes- tator. Stevenson v. Lesley, 70 N. T. 512; Van Brunt v. Van Brunt, 111 id. 178; Nelson V. Russell, 135 id. 137; Mullarky v. Sullivan, 136 id. 237. But see Nellis v. Nellis, 99 id. 505; Matter of N. Y., L. & W. R. Co., 105 id. 89. 6. Devise and bequest to children and survivor, in case of death of both, over, referred to death in lifetime of testator. Kelly V. Kelly, 61 N. Y. 47. But see Nellis v. Nellis, 99 id. 505. 7. Devise of remainder in fee, after particular estates, with executory limitations to issue of devisee, in case of his death, refers to time when remainder takes effect in possession. Champlin v. Haight, 10 Paige, 274. 8. Intent of testator and not technical words or rules should control. Buel V. South wick, 70 N. Y. 581 ; Hennessy v. Patterson, 85 id. 91, 92 ; Nellis v. Nellis, 99 id. 505; Vanderzee v. Slingerland, 103 id. 47; Matter of N. Y., L. & W. R. Co. v. Van Zandt, 105 id. 89; Fowler v. Ingersoll, 127 id. 472. 9. Death without having married, or without leaving child, then over. Wolfe V. VanNostrand, 3 N. Y. 436; Livingston v. Green, 52 id. 118;Lyt]e v. Bev- eridge, 58 id. 593; Embury v. Slieldon, 68 id. 227 ; Nellis v. Nellis, 99 id. 505; Matter of N. Y., L. &W. R. Co. v. Van Zandt, 105 id. 89; Mead v. Maben, 131 id. 255; Stokes V. Weston, 142 id. 433 ; Wasbon v. Cope, 144 id. 387 ; Benson v. Corbin, 145 id. 351. 10. Death. in lifetime of life tenant intended. Wolfe v. Van Nostrand, 3 N. Y. 436. See Matter of Mahan, 98 N. Y. 372; Goerlitz v. Malawista, 56 Hun, 130, aff'd 130 N. Y. 688. 11. Death in lifetime of testator intended. Gibson v. Walker, 20 N. Y. 476 ; Livingston v. Green, 52 id. 118 ; Kelly v. Kelly, 61 id. 47; Embury v, Sheldon, 68 id. 237; Stevenson v. Lesley, 70 id. 512; Matter of Mahan, 98 id. 372 ; Vanderzee v. Slingerland, 103 id. 47; Matter of N. Y.,L. & W. R. Co. V. Van Zandt, 105 id. 89; Van Brunt v. Van Brunt, 111 id. 178; Kerr v. Bryan, 33 Hun, 51; McLoughlin v. Maher, 17 id. 315. 12. Death before or after the death of the testator intended. Downing V. Marshall, 33 N. Y. 366; Buel v. Southwirk, 70 id. 581; Nellis v. Nellis, 99 id. 505; Matter of N. Y., L. & W. R. Co. Van Zandt, 105 id. 89; Fowler v. In- gersoll, 137 id. 473; Mead v. Maben, 131 id. 355. 848 X ESTATES IN' EXPECTANCY. 19. DEATH-ESTATES ON CONTINGENCY OF. 13. Devise in trust, and provisions in case of the death of a benefici* ary, referred to death before the testator. Gibson v. Walker, 20 N. Y. 476; Embury v. Sheldon, 68 id. 237. 14. Death before full payment, refers to time of payment. Finley v. Bent, 95 N. Y. 364. See p. 934. 15. Primary devise charged with legacies, effect on construction. Nellis V. Nellis, 99 N. Y. 505. 16. Gift over in case of death, without leaving husband or wife sur- viving, referred to death before the testator. Van Brant v. Van Brunt, 111 N. Y. 178. In case testator's child should die without having married, or without leaving child, the estate went to another; reference was to deatli in life- time of life tenant. Wolfe v. Van Nostrand, 2 N. Y. 436, digested p. 318. By will taking effect before the Eevised Statutes, the testator left all his estate, real and personal, to sons, subject to payment of debts and legacies, and made a pecuniary legacy to his daughters, to be "paid by the sons of them, or in case of the death of any of them, to the children of the deceased within ten years after my decease without interest." One of the daughters survived the testator, but died before the expira- tion of the ten years, leaving children ; held, that the right to the legacy passed to the personal representatives of the daughter, and not to her children. The provision in regard to the time of payment is to be regarded as an extension by the testator of the legal period, for the convenience of the devisees, of the land and as not affecting the construction of the other terms of the will. The will fixing no other period to which the condition of the death of the primary legatees can be referred, it requires the death of such legatee in the lifetime of the testator. Traver v. Schell, 20 N. Y. 89. Devise in 1810 to trustees in fee for the use of the testator's married daughter, her heirs and assigns forever, exempt from the control or debts of her husband. If he should die before his wife, then in trust to con- vey the legal estate to the latter in fee ; in case the daughter should die before the testator, then in trust for the use of such children as she miglit leave at her decease, their heirs and assigns forever, and if the said daughter should die childless, then in trust for another son and daughter; and in case of their deaths then for the right heirs of the tes- tator forever. II. FUTURE ESTATES. 349 19. DEATH-ESTATES ON CONTINGENCY OP. Construction : The contingency of the daughter's dying childless and the subsequent limitations refer to her death in lifetime of the testator. The remainder in fee devised to the daughter, after the death of her mother, became indefeasible upon her surviving her father. Gibson v. Walker, 20 K Y. 476, distinguishing, Ghrystie v. Phyfe, 19 id. 344. Death did not refer to death only after death of testator. Downing v. Marshall, 23 N. Y. 366 digested, p. 328. Limitations in case of death of sons or daughters, " prior to the time of such distribution," or "prior to such division," or "previous to the time of distribution," referred to the time appointed for the division, viz.: the death of the v?idow, life taker. Manice v. Manice, 43 N. Y. 303 (304). The will of S., after a devise of certain premises to his daughter, P, G., during her life, contained the following clause : " Then to be equally divided amongst her now surviving children, or any of them that may be alive at her decease, or the heirs of any that may be dead at the time of executing this my last will." Held, that the time referred to was the time the will took effect, by vesting the estate in possession upon the death of P. G.; that the word " heirs " was used in the sense of children, and that the intent of the testator was that the children of P. Gr. should take, if living at her decease, or if any were then dead, leaving children surviving, that the children should take, in place of the parent. Scott v. Guernsey, 48 K Y. 106. Life estate to wife in real estate and then " from and after the decease and death of my * * * wife, I give and bequeath all my real es- tate * * * to all my children and to their heirs and assigns to be equally divided, share and share alike : and should any of my children die and leave lawful heirs, such heirs to receive " the parent's portion. By a subsequent clause the testator declared that upon the death of his wife and a division of the estate, as provided among his children, their shares should be an estate in fee, and they were empowered to convey, etc. Wife and eleven children survived testator. Three subsequently died intestate and without issue. A son then died without issue, devising his interest in the real estate; thereafter testator's widow died. Construction : 1. The words "should any of my children die and leave lawful heirs" referred to death during testator's life. Moore v. Lyons, 25 Wend. 119; Eose V. Hill, 3 Burr. 1881 ; Converse v. Kellogg, 7 Barb. 590. 350 X. ESTATES IN EXPECTANCY. 19. DEATH-ESTATES ON CONTINGENCY OF. 2. The last clause referred to an absolute fee, of which a conveyance could only be made by the children after the death of the widow. 3. The words " after " and "upon the death of my wife " did not make a contingency, but simply indicated when the estate of children took effect in possession. 4. Children took vested remainder, not defeated by their death prior to the widow. 5. If words " should any of my children die " could refer to death after the testator and before that of his widow, it only applied to the case of a child dying leaving children, and did not affect A.'s devise, as no such contingency happened. Bundy v. Bundy, 38 N. Y. 410 ; Jenkins v. Van Schaak, 3 Paige, 242 ; 2 Jar. on Wills, 783 ; Clarke v. Johnston, 8 Blatch. 557. Livingston v. Oreen, 52 N. Y. 118. T. devised certain real estate to his executors in trust to receive and apply the rents and profits to the use of his son W. during his life, then to sell and to divide the proceeds among the living children of W. and the issue of those deceased. If W. died without issue surviving, then to divide the same among the testator's "surviving children and the issue of such of them as may have died leaving issue." At the time of making the will and of the testator's death there were five children, and the issue of five deceased children living. W. died without issue. Held, that the gift over was not to the children of the testator surviving him and to their issue exclusively, but that the issue of his deceased children also took without distinction between those whose parents died before and those who died after the making of the will. Teed v. Morton, 60 N. Y. 502. Devise and bequest of property to two children, in case of death of one to surviving child; in case of death of both to nephews. By sub- sequent clause testator expressed desire that properly should not be sold or mortgaged until his youngest child was of age. No power of sale was given to executors. Both children died under age and unmarried. Construction : The death referred to was one happening in the lifetime of the testator ; at his death his children took the fee. Kelly v. Kelly, 61 N. Y. 47 ; 5 Lans. 443. Citing Clarke v. Lubbock, 1 Y. & C. 493 ; Crigan v. Baines, 7 Sim. 40 ; Rose v. Hill, 3 Burr. 1881 ; Moore v. Lyons, 35 Wend. 119 ; Converse v. Kellogg, 7 Barb. 590 ; Livingston v. Greene, 53 N. Y. 124 ; 3 Jar. on Wills, 3d Lond. ed. , 707 ; 3d Am. ed., 468, 469; Whitney v. Whitney, 45 N. H. 311; Briggs v. Shaw, 9 Allen, 516. A clause making provision in case of the death of one of the bene- II. FUTURE ESTATES. 351 19. DEATH-ESTATES ON CONTINGENCY OF. ficiaries referred to a death before the division. Woodgate v. Fhet^ 64 N. Y. 566, digested p. 425. Devise to trustees to receive rents, issues, etc., during life of J., son, and pay same to J., A., D., and P., children of testator : devise upon death of J. as follows: One-fourth to J.'s children, one-fourth to A., D., and P., severally. In case A., D., or P. die leaving lawful issue surviving them, such issue shall take the share of principal and income given to the parent; and should no issue survive A., D., or P., so dying, the share of the one so dying should go per stirpes to the survivors of A., D., or P. and children of J. equally. Testator died in 1864 ; P. died before testator without issue ; D. died in 1869, leaving son born in 1867, who died in 1873, and wife, plaintiff, to whom he devised his estate. Construction : (1) D. took vested remainder on death of testator, subject to trust for life of J., inasmuch as the provision for the issue of A., D., or P. taking in case either died, referred to such person dying before the testator. Citing Moore v. Lyon, 25 Wend. 119. (2) If death of such person were referable to a time subsequent to death of testator, the only limitation in D.'s estate was his dying without issue surviving him, and as he did leave a son surviving, the son, under such construction, would take D.'s share, and as the son had also died, the plaintiff took his share. (3) Plaintiff took son's share of income during continuance of trust, either under the will as above, or as the one "presumptively entitled to the next eventual trust estate." Embury v. Sheldon, 68 N. Y. 227. "Words of survivorship referred to death of the testator. Stevenson v. Lesley, 70 N. Y. 512, digested p. 285. Death referred to was not a death during the lifetime of the testator. Buel V. Southwich, 70 N. Y. 581, digested p. 320. Testator's " next of kin " were those who were such at the death of a life taker. Delaney v. McCormack, 88 F. Y. 174-, digested p. 339. Words "die before full payment" mean not before actual payment but before the time when payable. Finley v. Bent, 95 N. Y. 864, di- gested p. 934. Words of survivorship referred to death of the testatrix. Matter oj Accounts of Mahan, 98 N. Y. 372, digested p. 266. The will of N. devised to two grandsons, the parties hereto, certain real estate " jointly and in equal proportions * * * subject to the provisions hereinafter made and the bequests." After various bequests, 352 X. ESTATES IN" EXPECTANCY. 19. DEATH-ESTATES ON CONTINGENCY OF. which were made charges upon the real estate, the will provided io substance that in case of the death of either of the devisees without lawful issue the surviving devisee should take the whole; upon his death, if without issue, the estate to go to the testator's grandchildren, the children of his son H. Oonstruction : By the provision in reference to the two devisees named dying with- out issue, a death prior to that of the testator was not alone intended, but it related as well to a death occurring after his decease; the two devises named took a contingent estate in fee, subject co be reduced to a life estate by his death without issue, and in case of the death of both without issue, the devise to the children of testator's son H. would take effect and vest in them an absolute fee; such devise was valid as a con- tingent limitation upon a fee, and said grandchildren living at the time of the testator's death were proper and necessary parties to the action. The rule was not changed by the fact that the primary devise was chargeable with legacies and other burdens ; a gift of an absolute fee could in no case be implied from the fact that a legacy is charged simply upon the lands, not upon the devisee personally ; and when the language of the will is explicit and unambiguous and gives an estate less than a fee, although it charges the devisee personally with the pay- ment of legacies, the payment thereof will not enlarge the estate to an absolute fee. Livingston v. Greene, 52 IST. Y. 118; Embury v. Sheldon, 68 id. 227 ; Kelly v. Kelly, 5 Lans. US, afif'd 61 K Y. 47. There was no unlawful suspension of the power of alienation. Only the children of the testator's son H. living at the time of the testator's- death, were entitled to take ; the devise would not let in afterborn chil- dren. Nellis V. NelUs, 99 N. Y. 505. From opinion.— " The intention here is quite as manifest as in Buel v. South- wick, 70 N. Y. 581, as to wlio should take upon the happening of the contingency- named. The use of the words ' provisions and bequests' Instead of the words 'con- dition and contingency,' makes no such distinction between the two cases as author- izes a holding that they are not analogous. The language is clearly comprehensive in both cases, and the former includes the condition and contingency referred to in the latter. See, also Sherman v. Sherman, 3 Barb. 385; Bumond v. Stringham, 26 id. 105. The authorities in reference to the construction of devises which are subject to contingencies and conditions, embracing the same general characteristics as the ones contained in the testator's will, uniformly hold that the death referred to is that of the one dying without issue whenever it shall happen without regard to that of the testa- tor. * * * Numerous cases are cited by the appellant's counsel to sustain a position adverse to the views already expressed, but they are all clearly distinguishable from the case at bar as is manifest by an examination of the same. It will be well to refer to some of the leading decisions which are relied upon. In Livingston v. Greene, 52^ II. FUTURE ESTATES. 353 19. DEATH-ESTATES ON CONTINGENCY OF. N. Y. 118, the devise in the will, which was the subject of discussion, was not made subject to any provision or any condition contained in the same, and hence the case is not analogous. The devise was to testator's wife for life, then to his children, and should any of them die leaving lawful heirs they to take the parent's portion. It was decided there was no occasion to apply the rule laid down in Moore v. Lyons, 25 Wend. 119. Embury v. Sheldon, 68 N.Y. 537, was somewhat similar in its features to the case last cited, and the question involved was as to the intention of the testator under all the circumstances presented. Both these cases are cited in Buel v. South- wick {mipra) and referred to as not being in point. They, therefore, have no appli- cation to the case at bar. In Kelly v. Kelly, 5 Lans. 443, afflrmed 61 N. Y. 47, the devise was not subject to any contingency and the question there was also as to the Intention of the testator in view of a peculiar state of facts which are not in any way analogous to the present case. Some other cases are cited, but none of them present the features which distinctly mark the case under consideration. In view of the decisions of this court already cited, the question we have discussed must be considered as distinctly settled and disposed of adversely to the appellant's contention. * ♦ * The appellant's counsel claims that the devise, having imposed upon the devisees, and they having accepted therewith, a personal liability to pay such certain legacies, and having paid them, in consequence of their doing so, they took a fe'e in the land devised, even though they would otherwise have taken only a life estate, and cites numerous authorities to sustain this position. The cases referred to have no application where the language devising the estate is explicit and without ambiguity. Where the will gives a less estate than a fee, it is good consideration for charging the devisee personally with the payment of the legacies if he accepts the devise. Such payment, however, will not enlarge the estate to an absolute fee; when it is apparent that there was no intention to devise such estate. In Mesick v. New, 7 N. Y. 163, it was held that in order to enlarge a devise, without words of inheritance, into a fee, by implication, by a legacy charged upon the devise, it was necessary that the pay- ment of the legacy should be imposed upon the devisee as a personal duty In respect to the devise, and the devisee took an estate for life only. The will of K., after certain specific devises and bequests, gave the residue of his estate to his son Daniel " and to his heirs ;" then followed these words, " but in case my son Daniel should die without lawful is- sue, I give and bequeath it to my remaining children, share and share alike." Daniel survived the testator. Construction : In the absence of other words in the will showing a contrary intent, the death referred to was a death of the beneficiary during the lifetime of the testator ; and upon the death of the latter, Daniel took an abso- lute estate. Same will: By a codicil the testator gave a specific bequest out of the residuary estate to his son James. Construction : This did not indicate an intent contrary to the construction above 45 354 X. ESTATES IN EXPECTANCY. 19. DEATH-ESTATES ON CONTINGENCY OF. given. Douglass y. Chalmer, 2 Yes. Jr. 501, distinguished. QuacJcen- bos V. Kingsland, 102 K Y. 128. Citing, Embury v. Sheldon, 68 N. Y. 337; Livingston v. Greene, 52 id. 118. Wiiere there is a devise or bequest simpliciter to one person abso- lutely, and in case of his death to another, it is a settled rule of con- Btruction that the words of contingency refer to a death in the lifetime of the testator. Moore v. Lyons, 25 Wend. 119 ; Kelly v. Kelly, 61 N. Y. 47 ; Briggs v. Shaw, 9 Allen, 516 ; Whitney v. Whitney, 45 N. H. 311 ; Edwards v. Edwards, 15 Beav. 357. The same rule applies where the devise over is not dependent upon the event of death simply, but upon death in connection with some col- lateral event, as death without issue or without children, etc. Clayton V. Lowe, 5 Barn. & Aid. 686 ; Gee v. Mayor of Manchester, 17 Adol. k Ell., N. S., 737; Woodbourne v. Woodbourne, 23 L. J. Ch. 336; Doe V. Sparrow, 13 East, 359 ; Quackenbos v. Kingsland,. 102 N. Y. 128 ; Livingston v. Greene, 52 id. 118; Embury v. Sheldon, 68 id. 227; Waugh's Appeal, 78 Pa. St. 436; Mickley's Appeal, 92 id. 514; but see, Britton v. Thornton, 112 U. S. 526. The rule in the latter case stands more upon authority than reason, and the tendency of courts is to lay hold of slight circumstances to vary the construction, and give efifect to the language according to its natural import, as referring to a death under the circumstances mentioned, hap- pening either before or after the death of the testator. Buel v. South- wick, 70 K Y. 581 ; Nellis v. Nellis, 99 id. 505 ; Hennessy v. Patterson, 85 id. 91, 92. The will of Y. devised his real estate to his son Cornelius, " subject to the proviso hereinafter contained." After various legacies, which were in consideration of the devise directed to be paid by C. within two years after the testator's death, the will contained a proviso to the etiect that if Cornelius died without issue then the estate devised to him should go to four grandchildren of the testator. The concluding por- tion of the clause is as follows : ',' In case my son Cornelius should die before the provisions of this will become an act the devisees last named shall perform and fullfil all the conditions required of my son Cornelius to the legatees named." Cornelius survived the testator but died with- out issue. Action for partition. Construction : The words " died without issue " referred to a death at any time, whether before or after the death of the testator ; Cornelius took a con- ditional fee, and the grandchildren a contingent interest by way of II. FUTURE ESTATES. 355 19. DEATH-ESTATES ON CONTINGENCY OF. executory devise, which, upon the happening of the contingency pro- vided for, was converted into a fee, thereby displacing the conditional fee. Vanderzee v. Slingerland, 103 IST. Y. 47. Notes from opinion.— 1. " It is said by Mr. Jarman, 3 Jarm. 783, to be the gene- ral rule that wliere the context is silent, words referring to the death of the prior lega- tee, in connection with some collateral event, apply to the contingency happening as well after as before the death of the testator. It will be observed that the rule as stated by the learned author relates to personal property and is deduced from the later English cases upon the construction of bequests of personalty, coupled with a contingency, which seems to have modified the earlier decisions. But where real estate is devised in terms denoting an intention that the primary devisee shall take a fee on the death of the testator, followed by a devise over in case of his death without issue, it has, I think, been uniformly held in England, and it is the rule supported by the preponderance of judicial authority in this country, that the words refer to a death without issue, in the lifetime of the testator, and that the primary devisee sur- viving the testator, takes an absolute estate in fee simple. 2. " The legacies were an equitable charge upon the land (58). Harris v. Fly, 7 Paige, 421, 423." Survivorship referred to in a deed of trust was that existing at the death of the settlor. Van Gott v. Prentice, 104 N". Y. 45. The rule that where there is a devise to one person absolutely, and in case of his death to another, the contingency referred to. is the death in the lifetime of the testator, applies only where the context of the will is silent, and afifords no indication of a different intention. Where the devise over is dependent upon a death without issue, the tendency of the court is to lay hold of slight circumstances in the will to vary the construction, and give effect to the language according to its natural import. The will of B. devised and bequeathed to her daughter, Minnie, all her real and personal estate, subject to the payment of certain legacies, which were made a charge thereon. In case of the death of M. " with- out issue," the property was given to the husband and a sister of the testatrix during life, and after their deaths to four brothers. The clause ended as follows : " The devise over to my husband, sister and broth- ers to depend upon the contingency of my daughter Minnie dying without issue." The daughter named survived the testatrix. Construction : She (the daughter) took under the will a base or conditional fee, de- feasible by her dying without leaving issue living at the time of her death ; her children, should she leave any, would take by inheritance from her, but a conveyance by her in her lifetime would be effectual as against them, and an indefeasible title in fee could be conveyed and the 856 X. ESTATES IN EXPECTANCY. 19. DEATH— ESTATES ON CONTINGENCY OF. contingent expectant estates, limited to the husband, sister and brothers, cut off bj their joining with ber in the conveyance. Matter of N. Y., L. Jt W. R. Co. V. Van Zandt, 105 N. Y. 89. From opinion. — "It may be regarded as a settled rule of construction that where there is a devise to one person in fee, and in case of his death to another, the contin- gency referred to is the death of the first named devisee during the lifetime of the testator, and that if such devisee survives the testator, he takes an absolute fee ; that the words of contingency do not create a remainder over, to take effect upon the death, at any time, of the first taker, nor an executory devise, but are merely substi- tutionary, and used for the purpose of preventing a lapse in case the devisee first named should not be living at the time of the death of the testator. This construc- tion is uniformly adopted unless there is some language in the will indicative of a different intention on the part of the testator. "The reason assigned for this construction has been that, as death is a certain event, and the time only is contingent, the words of contingency in a devise of this descrip- tion can only be satisfied by referring them to a death before some particular period, and no other being mentioned, the time referred to must be presumed to have been the testator's own death. It is also founded upon the principle that in construing wills, effect should be given, if possible, to all the words used by the testator, and that any other construction than the one which has been adopted would in every case reduce the estate of the first nam d devisee to an estate for life ; for his death at some time is certain, and the words of inheritance attached to the devise to him would in every case be inoperative. " Nevertheless, it has been held that the same rule of construction is to be applied where the alternative devise is made to depend upon the death of the first named de- visee ' without issue,' or ' without children,' etc. This question is thoroughly dis- cussed in the opinion of Andrews, J., in the case of Vanderzee v. Slingerland, 103 N. Y. 47, and the learned judge comes to the conclusion that, although the reason upon which the rule adopted in the first mentioned class of cases was founded, does not exist in the second, yet that it is established by precedent. It would be useless now to go through the cases. They are very numerous, and not all reconcilable, and many of them contain special features. It is sufBcient, for present purposes, to re- fer to a few of the cases. In Gee v. Mayor, etc., of Manchester, 17 Adol. & Bl., N. S., 737, the testator devised and bequeathed his real and personal estate to be divided equally among his children as follows, viz. : ' I will and bequeath to my eldest son, A. one-seventh share of my property, to his heirs, executors and administrators.' Then followed similar devises and bequests to each of the testator's six other children, and afterward a general provision in these words : ' And in case any of my sons and daughters die without issue, that their share returns to my sons and daughters equally amongst them, and in case any of my sons and daughters die and leaving issue, that they take their deceased parent's share.' ' ' It was held that the death referred to was a death in the lifetime of the testator, and that all his children having survived him, they each took a fee simple in one-seventh of his realty. " It must be observed that unless that construction was adopted, the words of inheri- tance attached to the devise to each of the testator's children must in every event be rejected. " It was certain that each of the children would die, either with or without issue. Construing the death referred to by the testator as a death at any time, the result II. FUTURE ESTATES. 357 '19. DEATH-ESTATES ON CONTINGENCY OF. ■would be that upon the death of either of the testator's sons, for instance, without issue, his share would go to his brothers and sisters, not as his heirs, but as purchas- ers by virtue of the limitation over to them. It he died leaving issue, such issue would take in like manner, not as his heirs, but as purchasers. He would have no estate of inheritance in any eyent, and could make no disposition of the fee in the realty, in his lifetime, or by will. The words of the testator, purporting to give him an estate in fee, would thus be wholly rejected, and his estate, under all circumstan- ces, cut down to a life estate. " It was on these grounds that Lord Campbell, in delivering the judgment of the court, held that the only mode of giving effect to all the words of the testator was by treating the words in the last clause of the will as words of substitution only, in case of a lapse, and referring the death there contemplated, to a death in the lifetime of the testator. " In Clayton v. Lowe, 5 Barn. & Aid. 636, the devise was in the same form as in case last cited. The estate was given to the testator's three grandchildren, forever. If either of them should die without lawful child or children, the share of the one so dying was to be divided among the survivors, but if either should die leaving lawful child or children, such child or children should take the share of the parent. It is obvious, that unless the death referred to was a death in the lifetime of the testator, the first named devisees could in no event take a fee. " Doe V. Sparrow, 13 East, 359, was a case of the same description, with additional significant words expressly referring to the testator's own death. " Woodburne v. Woodburne, 2i L. J. Ch. 336, was the same as Gee v. Mayor of Manchester, and was decided the same way. " The cases I have referred to rest on principles, and are founded on reasons which are easil}' comprehended ; but there are other cases in which the words ' die withou t issue' are construed as referring to a death in the lifetime of the testator, where those principles are inapplicable and the reasons do not exist, and of such cases Andrews, J., in the case of Vanderzee v. Slingerland, says that they stand more upon authority than upon reason. "It is stated in Jarman on Wills. 5th Am. ed. ,783, that the general rule is, that where the context is silent, the words referring to the death of the prior legatee in connection with some collateral event, apply to the contingency happening, as well after as before, the death of the testator. "In O'Mahoney v. Burdell, L. R. 7 H. L., 388, 393, it was held that a bequest to A., and if she should die unmarried or without children, to B., was an absolute gift to A., defeasible by an executory gift over in the event of A. dying at any time, unmarried or without children, and that this construction could only be affected by a context which rendered a different meaning necessary. And in Britton v. Thornton, 112 U. S. 526, it was held that under a devise to one person in fee and in case he ,sh uld die under age and without children, to another in fee, the devise over would take effect upon the death, at any time, of the first devisee under age and without children. To the same effect is Edwards v. Edwards, 15 Beav. 357, and see Doe v. Webber, 1 Barn. & Aid. 713, and Anderson v. Jackson, 16 Johns. 383. But it can not be disputed that there are several cases holding that where there is simply a devise to A., in fee, and in the event of his dying without issue, then to B., the death referred to is a death in the lifetime of the testator, and if A, survives him he takes an absolute and indefeasible estate in fee. Home v. Pillian, 2 My. & K. 15, 19, and cases cited ; Ware v. Watson, 7 DeG., M. & G. 248. Such appears to be the rule in Pennsylvania, Mickley's Appeals, 92 Penn. 514, and the same rule has been 358 X. ESTATES IN EXPECTANCY. 19. DEATH-ESTATES ON CONTINGENCY OF. adopted in this court, Quackenbos v. Kingsland, 102 N. Y. 138, and was recognized in Vanderzee v. Slingerland, 103 id. 47, before referred to." "If any one of my children should die without leaving a husband or wife him or her surviving, then I give, devise and bequeath his or her share to the survivor or survivors of them," referred to those living at the death of the testatrix. Van Brunt v. Van Brunt, 111 K Y. 178, digested p. 452. A. gave the use of his property to his wife for life, with remainder to his children and grandchildren, in such shares as the wife "may, by her last will * * * appoint." In default of appointment the estate should go to children and grandchildren, the latter taking one ehare, with substituted remainders to their issue. C, grandchild, died before the widow and without issue. The codicil directed that on the death of the wife, the share of the estate to go to C. should be held in trust for him during life and upon his death the principal should go to his issue ; if none, then his share to fall into the general estate, or as his wife should by will direct. Tbe provision was confined to the con- tingency of G.'s death after the widow, and as he died before her, the secondary power of appointment became inoperative. Austin v. Oakes, 117 N. Y. 577, digested p. 997. The rule that where a will contains a devise or bequest simpliciter to one person, and, in case of his death, to another, the contingency referred to is a death in the lifetime of the testator, is not applicable when the first devisee or legatee simply takes a life estate; it applies only when the prior gift is absolute and unrestricted. The will of M. gave to her husband the use of her whole estate dur- ing life, subject to the payment of certain legacies and to annuities to three cousins of the testatrix. In case of the death of either cousin, the annuity of that one was to go to the survivors. In case of the death of the husband before the testatrix, the will provided, as to cer- tain specified real estate, as follows: that A., one of the cousins and an executrix, should have the sole supervision and management thereof, she to receive one-tenth of the net income for her services, and one- fourth of the residue in lieu of commissions; three-eighths of the remainder was directed to be paid to each of the other cousins; in case of the death of either, the share of that one to be paid to the survivors. Upon the death of the cousins, the will provided that one-third of said real estate should go to the children of each of her cousins, in case of the death of either without children, the share of that one to go to the children of the survivors. The executors were empowered to sell said real estate during the existence of the life estate, provided the supreme II. FUTURE ESTATES. 859 19. DEATH-ESTATES ON CONTINGENCY OF. court on petition shoald permit and direct it, the proceeds of sale to be invested, and the income and principal to be disposed of in the same manner as before provided as to the land. The testatrix survived her husband. Construction : The title vested in A., in trust, said trust to continue during the lives of the three cousins ; and so, the provision was void, as it suspended the power of alienation and the absolute ownership of the proceeds of a sale for more than two lives in being at the death of the testatrix ; and, upon the death of M., the title to the land vested in her father, who was her only heir at law. Fowler v. IngersoU, 127 N. Y. 472. From opinion.—" The rule ia well settled by authority and precedent that when there is a devise or bequest simpUciter to one person and in case of his death to another, the contingency referred to is a death in the lifetime of the testator . " So when there is a devise to A., and in case of his death without issue or without children then to B., the weight of authority is that the words refer to a death with- out issue in the lifetime of the testator, and the primary devisee surviving the tes- tator takes an absolute estate in fee simple. "The words of contingency are substitutionary merely, and are intended to pre- vent a lapse in case the first devisee is not living at the death of the testator and do not create an executory devise or a remainder over upon the death, at any time, of the first taker. " But this rule has no application when the first devisee or legatee takes a life estate and is applied only when the prior gift is absolute and unrestricted. " The reason assigned for the rule is that as death is the certain event and time only is contingent, the words of contingency can only be satisfied by referring them to a death before some particular period, and none being mentioned, the time referred to must be presumed to be the testator's own death. Matter of N. T., L. & W. R. R. Co., 105 N. Y. 89 ; Vanderzee v. Slingerland, 103 id. 47. " But this reason fails in the case of a life estate as in such case the presumption would be that words of contingency referred to the event which would determine the life estate. The rule is so stated in Jarman on Wills, vol. 3, p. 759, 5th ed. "And many cases could be cited where the courts, having construed the prior estate to be less than an absolute fee, have held that the words of contingency referred to a death whenever it may happen. Matter of N. T., L. & W. R. R. Co., supra; Buel V. Southwick, 70 N. Y. 581 ; Nellis v. Nellis, 99 id. 505. " Moreover the construction contended for by the appellants is only given to the words when the context of the will affords no indication of an intent on the part of the testator other than indicated by the words of absolute gift followed by a gift over in case of the death of the first named devisee. Vanderzee v. Slingerland, supra; Matter of N. Y., L. & W. R. R. Co., supra; Nellis v. Nellis, supra; O'Mahoney v. Burdett, L. R. 7 Eng. & Ir. App. 388. "The rule is an arbitrary one and has often been said to rest more upon precedent than upon reason, and in Vanderzee v. Slingerland, Judge Andrews said that 'the tendency is to lay hold of slight circumstances in the will to vary the construction and give effect to the language according to its natural import.' " 860 X. ESTATES IN EXPECTANCY. 19. DEATH-ESTATES ON CONTINGENCY OP. The rule that where a testamentary gift is to one or more persons, and in case of the death of any of them without issue to the survivors, the death referred to is one in the lifetime of the testator, and that any one of said persons surviving the testator takes absolutely, applies only where the context of the will contains nothing showing a contrary in- tent. Vanderzee v. Slingerland, 103 N. Y. 47. Where the scheme of the will and the context show the testator intended a death occurring at any time, this must prevail. The will of M. gave his residuary estate to his executors with power to sell the realty in their discretion, to make division into seven equal parts, one of which was given to each of his seven children, and until a sale of the realty, the income to be paid over to them in the same pro- portions. After providing for the disposition of " the share of interest remaining'' of one child in case she die intestate, the will provided that in case any other child " shall die without leaving surviving child or children or heirs of the body, then" the share of the one so dying shall go equally to the other children. A,, a daughter of the testator, died childless after his death. Construction : The death referred to in the will was not a death in the lifetime of the testator, but one occurring at any time ; the purpose of the testator was to prevent a sharing in his estate by others than his children and their issue; while each child took a vested interest in the seventh part of the estate upon the testator's death, it was not absolute, and upon the death of A., without issue, her share went to the testator's surviving children. Mead v. Maben, 131 N. Y. 255, rev'g 60 Hun, 268. "Whereas in this will is mentioned and described gifts, devises and bequests to my children, if any of them should be dead leaving issue surviving, I do direct that the issue of any of my children, deceased, shall take the same share their parent would have received had such parent remained living." Held, that the death referred to was a death in the lifetime of the testator; that althougV be clause was unnecessary in view of the protection afforded by the statute (2 R. S. 66, sec. 52), this would not alter its construction unless some other, making a clause necessary and effective, should be found to be both a possible one and within the testamentary intention. Matter of Tienken, 131 N. Y. 391-2. Words of survivorship and gifts over on the death of the primary beneficiary are to be construed, unless a contrary intention appears, as relating to the death of the testator. Yanderzee v. Slingerland, 103 II. FUTURE ESTATEa 361 19. DEATH-ESTATES ON CONTINGENCY OF. N. Y. 55; Matter of K Y., L. & W, R. Co., 105 id. 92. mson v. Eussell, 135 id. 137, digested p. 303. The rule that words of survivorship in a -will refer to the time of the testator's death applies only to an absolute gift to one and in the case of his death to another; it has no application in a case where the firsl; devisee or legatee takes a life estate. Vanderzee v. Slingerland, 103 N. Y. 47; in the matter N. Y, L. & W. R. Co., 105 id. 89; Fowler v. Ingersoll, 127 id. 472 ; Mead v. Maben, 131 id. 255. Mullarky v. Sul- livan, 136 id. 227, digested p. 312. The rule that where there is a bequest to one person, absolutely, and in case of his death without issue, to another, the contingency referred to is a death in the lifetime of the testator, does not apply when a point of time other than the death of the testator is mentioned, to which the contingency can be referred, or to a case where a life estate intervenes, or where the language of the will evinces a contrary intent. Vanderzee V. Slingerland, 103 N. Y. 47 ; Matter of N. Y, L. & W. R. Co., 105 id. 89; Fowler v. Ingersoll, 127 id. 472; Mead v. Maben, 131 id. 255; Mullarky v. Sullivan, 136 id. 227. D. died leaving his wife and five children him surviving; by his will he gave to his widow the use of his homestead during life ; upon her death, the executors were directed to sell and dispose of the same; he also gave to her and to H., a daughter, the use of $8,500 during the life of his widow. In case H. died before the widow, the latter to have the use of $7,500 during her life. In case H. survived the widow, to the former was given, after the death of her mother, the use of $4,500 dur- ing her life. The residuary estate was given to the four other children, with this proviso, "that in case of the death of either of them, leaving issue, before either of the different parts thereof * * * can be di- vided, then such issue to take the share or part the parent would have been entitled to, if living ; if without issue, then the survivors to take." E., a son, died first, leaving a wife surviving; ho had issue, but left none surviving him. H. died next and then the testator's widow. Pro- ceedings for final settlement of the accounts of the executors. Construction : Tlie death referred to in the residuary clause, was not a death during the lifetime of the testator; the words "leaving issue" could not be construed as reading " without having had issue;" the scheme of the will contemplated a residue divisible into at least three parts, distribu- table at different times, and if prior to the time any one part could be distributed, either of the four beneficiaries named had died, and ther« 46 S62 X. ESTATES IN EXPECTANCY. l9. DEATH— ESTATES ON CONTINGENCY OF. was at that time issae of such decedent surviving, the issue would take the share such beneficiary would have taken if living ; if not, then the sur- viving beneficiaries would take ; therefore, the gift to E. as to so much of the residuary estate as was not distributable at his death, was de- feated by his death without issue surviving, and his share went to the three surviving beneficiaries. Matter of Denton, 137 N. Y. 428. The law favors equality among children in the distribution of estates, and in case of doubtful construction of the language of a will it selects that which leads to such a result. So, also, the law favors the vesting of estates, and in case a will con- tains apt words to dispose of the testator's entire estate that construction will be given to it. The will of S. gave to his wife the use of all of his property for life, the remainder to his three children, two sons who were unmarried, and a daughter who was married and had two children. The will then pro- vided that in case of the death of the sons, or either of them, without issue then living, the share of the one so dying should be divided ■equally between the two grandchildren. Action for the partition of lands of which the testator died seized, and for a construction of the will. Construction : The death referred to was that of a son during the lifetime of the testator, and as they both survived him, they, with their sister, took the entire estate, subject to the life estate of the widow. Stokes v. Weston, 142 N. Y. 433, rev'g 69 Hun, 608 ; distinguishing Mead v. Maben, 131 N. Y. 255. Troin opinion.— "In the Matter of the N. Y., L. & "W. R. Co., 105 N. Y. 93, Judge Rapallo said: ' It may be regarded as a settled rule of construction that where there is a devise to one person in fee, and in case of his death to another, the contin- gency referred to is the death of the first-named devisee during the lifetime of the testator, and that if such devisee survives the testator he takes an absolute fee; that the words of contingency do not create a remainder over to take effect upon the death, at any time, of the first taker, nor an executory devise, but are merely substitutionary and used for the purpose of preventing a lapse in case the devisee first named should not be living at the time of the death of the testator. This construction is uniformly adopted unless there is some language in the will indicative of a different intentioii on the part of the testator. The reason assigned for this construction has been that, as death is a certain event and the time only is contingent, the words of contingency in a devise of this description can only be satisfied by referring them to a death before .some particular period, and no other being mentioned, the time referred to must be presumed to have been the testator's own death. It is also founded upon the princi pie that, in construing wills, effect should be given, if possible, to all the words used by the testator, and that any other construction than the one which has been adopted would in every case reduce the estate of the first-named devisee to an estate for life II. FUTURE ESTATES. 363 19. DEATH— ESTATES ON CONTINGENCY OF. for hla death at some time is certain, and the words of inheritance attached to the de- vise to him would in every case be inoperative.' Tlie rule and its reasons thus stated have been recognized by ihe courts of England and this state for many years. In case of Doe, Lessee of LifEord v. Sparrow, 13 East, 359, Lord Ellenborough laid down the rule after elaborate reasoning, and in Gee v. The Mayor, etc., of Manchester, 17 Adol. & Ell. 737, Lord Campbell further discussed the rule and approved tlie reason- ing of Lord Ellenborough in the case cited. See, also, Clayton v. Lowe, 5 Barn. & Aid. 636; Woodburne v. Woodburne, 23 L. J. Ch. 336; Moore v. Lyons, 35 Wend. 118; Livingston v. Greene, 53 N. Y. 118; Kelly v. Kelly, 61 id. 47; Embury v. Shel- don, 68 id. 237; Vanderzee v. Slingerland, 108 id. 47; Nelson v. Russell, 135 id. 137. "An examination of the cases in this court where the rule has not been applied will disclose the fact that there was some language of the testator indicating a dWerent intention. Such a case was Mead v. Maben, 181 N. Y. 255. Judge Gray expressly rested the decision of the court, which refused to apply the rule in that case, on the special language of the testator." Where a devise or bequest over is not dependent upon the death sim- ply of the original beneficiary, but upon the death without issue or without children, the death referred to, in the absence of anything in other portions of the will tending to show a contrary intent, will be considered as a death in the lifetime of the testator. Washhon v. Cope, 144 N. Y. 287, rev'g 67 Hun, 272. Citing, Quackenbos v. Kingsland, 103 N. Y. 138; Vanderzee v. Slingerland, 103 id. 47; Mead v. Maben, 131 id. 255; Stokes v. "Weston, 143 id. 433; see also, Matter of Tienken, 131 id. 391, 403, The will of B. gave to his wife the use and occupation of two dwell- ing houses during her life, and provided that " in case of the sale of either or both with her consent the income of the principal shall be paid to her; he then devised said dwelling houses to two children, subject to the life occupancy of their mother, and also devised to them all his other real estate subject to her dower right. By a subsequent clause it was provided that in case of the death of both of the children without issue the property devised to them " and their issue " shall not pass to the branches of his own or his wife's family, but is "given, devised," etc., to a beneficiary named. It appeared that aside from the two dwell- ing houses, that testator's real estate consisted principally of a large tract of sandy and barren land on the sea shore from which he had been selling lots for summer homes, and which was only valuable for such purposes. Eeld, that the death without issue referred to in the devise over meant a death in the lifetime of the testator, and as the two chil- dren named survived the testator they took an absolute fee in all the lands subject to their mother's life estate and dower right. Benson v. Corhin, 145 N". Y. 351. The rule that in case of a devise to one person in fee, but in case of his death to another, the death referred to will be construed to be a 364 X ESTATES IN EXPEOTANCY. 19. DEATH— ESTATES ON CONTINGENCY OF. death in the testator's lifetime, has no application to this case. The rule is never permitted to operate in a case where, as here, a point of time for distribution is mentioned other than the death of the testator, or where a life estate intervenes, or where the context of the will con tains language indicating a contrary intent. In re Denton, 137 N. Y, 428 ; Washbon v. Cope, 144 id. 297 ; Benson v. Oorbin, 145 id. 351 Stokes V. Weston, 142 id. 433 ; Vanderzee v. Slingerland, 103 id. 47 Mullarky v. Sullivan, 136 id. 227 ; Fowler v. Ingersoll, 127 id. 472 Matter of Baer, 147 id. 343. When a gift over, in case of tlie decease of the first devisee, refers to his death in the lifetime of the testator. Kerr v. Bryan, 33 Hun, 51; McLouglilin v. Maher, IT id. 215. When the estate of a remainderman, dependent upon a life estate, vests on the tes- tator's death— when a contingency, based upon the death of a devisee, refers to a death before that of the testator. Black v. Williams, 51 Hun. 380. Construction of a provision giving a remainder over to the next of kin of such beneficiaries, entitled to estates in remainder, as should die — effect of a death before that of a testatrix. Palmer v. Dunham, 53 Hun, 468. Fee to a son or his issue, subject to a life estate— when the contingency relates to the death of the testator, and when to that of the life tenant. Qoerlitz v. Malawiata, 56 Hun, 120, aff'd 130 N. Y. 688. Where there is a devise to one person in fee and in case of his death to another, the contingency referred to is the death of the first-named devisee during the lifetime of the testator, and if such first-named devisee survives the testator he takes an abso- lute fee. The words of contingency do not create a remainder over, to take effect upon the death at any time of the first taker, nor an executory devise, but are merely substitu- tionary and used for the purpose of preventing a lapse in case the devisee first named should not be living at the time of the death of the testator. Newcomb v. ImsJi, 84 Hun, 254. The rule is well settled that where there is a devise to one and a bequest over to a third person, depending not upon the event of death simply, but upon death without issue, the death referred to is one occurring in the lifetime of the testator.' But this rule applies only where the context of the will contains nothing to show a contrary intention upon the part of the testator ; and where it appears, from the language and provisions of the instrument, that the testator referred to a death either before or after his own, his intention will prevail, and such intention may be inferred from slight circumstances.' A testator provided: " I give, devise and bequeath to my son, G. W. H. subject to the provisions contained herein, my farm heretofore occupied by him, situate in the town of North Norwich, and consisting of about 160 acres of land, with the appur- 'Washbon et al. v. Cope, 144 N. Y. 387 ; Stokes v. Weston et al., 142 id. 433; Quackenbos v. Kingsland, 102 id. 129 ; Livingston et al. v. Greene et al., 52 id. 118 ; Matter of Tienkin, 131 id. 291 ; Benson et al. v. Corbin et al., 145 id. 351. 'Mead v. Maben et al., 131 N. Y. 255 ; Vanderzee v. Slingerland, 103 id. 47 ; Avery V. Everett, 110 id. 317 ; Matter of N. Y., L. & W. R. Co., 105 id. 89. And it is held that such intention may be inferred from slight circumstances. Washbon et al. v. Cope, 114 N. Y . 297. II. FUTURE ESTATES. 365 19. DEATH-ESTATES ON CONTINGENCY OF. tenaaces ; but in case of the death of my said son G. without leaviug lawful issue him surviving, then my said farm to go to my grandchildren, who are the children of my deceased son, H., namely, M. E. H. and 0. H. and H. C. H., share and share alike therein. Construction: The son G. W. H. took a conditional estate in fee in the farm which was subject to be reduced to a life estate if he died without leavmg lawful issue him surviving. The contingency mentioned in the will was that of the testator's sons surviving him and afterwards dying without issue ; The grandchildren, children of H. 0. H., would become entitled to an estate in fee in the event of the death of G. W. H. without Laving lawful issue him surviving. Chapman v. Moulloii, 8 App. Div. 64. Where an estate is devised in fee, in remainder after the termination of a particular estate in the premises, with an executory limitation over to the issue of the devisee in case of the death of such devisee, such dying is to be construed to apply to the time When the remainder is limited to take effect in possession, and not to the time of the death of the testator. Champlin v. HaigM, 10 Paige, 374. 20. LIMITATION OF SUCCESSIVE LIFE ESTATES. Eeal Prop. L., sec. 33 (L. 1896, ch. 547, took effect Oct. 1st, 1896). Limitation of successive estates for life. " Successive estates for life shall not be limited, except to persons in being at the creation tliereof ; and where a remainder shall be limited on more than two successive estates for life all the life estates subsequent to those of the two per.sons first entitled thereto shall be void, and on death of those persons, the re- mainder shall take effect, in the same manner as if no other life estates had been created." 1 R. S. 733, sec. 17, Banks's 9th ed. 1790, repealed by Real Property Law, substanti- ally the same. Explanatory note to seo. 33. — Devise to A. for life, B. for life, 0. for life, remainder to D. The remainder takes effect on the death of B., and the estate of A. and B. are valid, and that of 0. is void, and the remainder, being vested, is good. If the devise be to E. for the lives of A., B. and C, with remainder to D., there is one life estate for three lives ; the remainder is vested and hence valid under section 35, and takes effect on the death of A. and B., the persons first named. Sections 33 and 35 relate only to vested remainders, and hence have no relation to the rule against perpetuities. Amory v. Lord, 9 N. Y. 403 ; Woodruff v. Cook, 61 id. 638 ; Purdy v. Hayt, 92 id. 446 ; Dana v. Murray, 122 id. 604, 618. See this further discussed, post, p. 89, and see pp. 336, 367, 385. a. REMAINDER ON ESTATES FOR LIFE OF THIRD PERSON. Real Prop. L., sec. 34 (L. 1896, ch. 547, took effect Oct. 1, 1896). Remainder on estates for life of third person. "A remainder shall not 366 X. ESTATES IN EXPEOTAKCY. 21. REMAINDER ON ESTATES FOR LIFE OF THIRD PERSON. be created on an estate for the life of any other person than the grantee or devisee of such estate, unless such remainder be in fee; nor shall a remainder be created on such an estate in a term of years, unless it be for the whole residue of such term." 1 R. S. 734, sec. 18, Banks's 9th ed., 1791, repealed by Real Prop. Law, substan- tially the same. Explanatory note to sec. Si. — The first clause of this section intends that a remainder less than a fee shall not be limited upon a life estate for the life of another than the taker of such life estate. The second clause intends that when such a life estate (life estate for the life of a third person) is created in a term of years, no remainder for less than the residue of the term shall be limited thereon. It would follow that, if the life estate were for the life of the taker thereof, a re- mainder of less than the fee might be created under the first clause, and a remainder for less than the residue of the term might be limited on a life estate for the life of the taker in a term of years. This section, as well as the other sections preceding section 40, should be read in connec- tion with the latter section, which provides that, "subject to the pro- visions of this article," an estate for life may be created in a term of years, and a remainder limited thereon. At common law, if a man possessed of a term, say for 100 years, grant it to A. for life, and if he shall die during the term, then the residue of the term to B., A. has an absolute interest, and the remainder to B. is utterly void. Reviser's Notes, 3 R. S. 573. Such a limitation in a will would have been valid. The statute effects uniformity in conveyances and wills. The following are illustrations under this section : Grant or devise to A. for life of B., remainder to 0. in fee, is a valid remainder. Grant or devise to A. for life of B., remainder to 0. for life, remain- der to D. in fee, is an invalid remainder to C. Grant to A. for A.'s life, remainder to C. for life, remainder to D. in fee, is valid. Grant out of a term of 100 years to A. for life of B., remainder to C. for residue of the term, is a valid remainder. Grant out of a term of 100 years to A. for life of B., estate to C. for less than the residue of years remaining of the term after B.'s death, is an invalid estate. Grant out of a term of 100 years to A. for A.'s life, then an estate to B. for less than the residue of the term after B.'s death, is a valid estate. II. FUTURE ESTATES. 367 22. WHEN REMAINDERS TO TAKE EFFECT IF ESTATE BE FOR LIVES OF MORE THAN TWO PERSONS. Eeal Prop. L., sec. 35 (L. 1896, eh. 517, took effect Oct. 1st, 1896). When remainder.s to take effect if estate be for lives of more than two persons. " When a remainder is created on any such life estate, and more than two persons are named as the persons during whose lives the life estate shall continue, the remainder shall take effect on the death of the two persons first named, as if no other lives had been introduced." 1 R. S. 724, sec. 19; Banks's 9th ed. 1791, repealed by Real Property Law, substaa- tially the same. Explanatory note to sec. 35. — This section has reference to an attempt to create a remainder limited on the lives of more than two third persons, thus, estate to A. for the lives of B., C, and D., remain- der to E. The remainder takes effect upon the deaths of B. and 0. and the life of D. is ignored. The reading of the section shows that the lives upon whose termination the remainder is to take effect, are the lives of third persons and not of the grantees of the life estate. The sentence is, "when a remainder is created on any such life estate," etc., "such " refers to the life estates treated in section 34, and they are es- tates for the life of a third person. Suppose, then, the estate were to A., B., 0. and D. as joint tenants for their lives and the life or lives of the survivors, remainder to E. Here is an estate given jointly to A. for his life, to B. for his life, to C. for his life, to D. for his life. If they were successive estates the last two would fail, but they are concurrent estates in this respect, that each person enjoys the property for his life concurrently with his co-tenant, and the remainder can not take effect until all shall have died. It is not apparent that such an estate offends any statutory provision. See Chaplin's Suspension, sees. 360-366. 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. 1. STATUTES RELATING TO SUSPENSION OF THE POWER OP ALIENATION OR OP ABSOLUTE OWNERSHIP — EXPLANATORY NOTE, p. 383. Section 33 relating to Real Property, p. 383. Statute relating to Personal Property, pp. 383, 390. JEffect of the changed phraseology of sec. 33, p. 383. Section 32 primarily relates to contingent estates, p. 384. Williams v. Williams, 8 N. Y. 536 ; Wetmore v. Parker, 53 id. 450 ; Kane v. Gott, 24 Wend. 662. Section 32 and section 76 relate to estates created by means of a trust, pp. 383, 393. Downing v. Marshall, 23 N. Y. 366 : Everitt v. Everitt, 29 id. 39 ; Scheltler y. Smith, 40 id. 338 ; Robert v. Corning, 89 id. 325. Sections 33 to 85 relate to nested estates, pp. 388, 385. Amory v. Lord, 9 N. Y. 403 ; Purdy v. Hayt, 92 id. 446 ; Dana v. Murray, 122 id, 604, 618; Woodruff v. Cook, 61 id. 638. 368 X ESTATES IN EXPECTAKCY. 23. SUSPENSION OF POWER OF ALIENATION OR OP ABSOLUTE OWNERSHIP. 1 . STATUTES RELATING TO SUSPENSION OF THE POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP — THEIR MEANING AND RELATION. Former section 16 {now part of section 33) does not relate to personal property, p. 386. Maaice v. Manice, 43 N. Y. 305 ; Mott v. Ackerman, 93 id. 459. 3. SUSPENSION — HOW DETERMINED. Personal disabilities, suspension is n/tt determined by. Everitt v. Bveritt, 39 N. Y. 39-97 ; Beardsley v. Hotchkisg, 96 id. 801, 314 ; Liv- ingston V. Tucker, 107 id. 549-553 ; Craig v. Craig, 3 Barb. Cli. 76 ; Chaplin Suspen- sion, sec. 316. If, by the terms of the instrument, suspension may occur, actual events are imma- terial, p. 398. Scliettler v. Smith, 41 N. Y. 308 ; Kaox v. Jones, 47 id. 389 ; Purdy v. Hayt, 93 id. 446; Henderson V. Henderson, 113 id. 1, 14; Haynes v. Sherman, 117 id. 433; Bana v. Murray, 133 id. 604 ; Hawley v. James, 16 Wend. 131. /Suspension ascertainable only after one life has run, p. 398. Purdy V. Hayt, 93 N. Y. 446 ; Dana v. Murray, 133 id. 604. Suspension only exists if there be not persons in being who can transfer the abso- lute title, pp. 387-8. Norris v. Beyea, 13 N. Y. 373, 389 : Everitt v. Everitt, 39 id. 39 ; Moore v. Littel, 41 id. 66, 83 ; Garvey v. McDevitt, 73 id. 563 ; Hennessy v. Patterson, 80 id. 91 ; Smith V. Edwards, 88 id. 104 ; Farrar v. McCue, 89 id. 139 ; Mott v. Ackerman, 93 id. 550 ; Beardsley v. Hotchkiss, 96 id. 301 ; Robert v. Corning, 89 id. 335 ; Nellis v. Nellis, 99 id. 505 ; Matter of N. Y., L. & W. R. Co., 100 id. 96 ; Genet v. Hunt, 113 id. 158-173; Greenland v. Waddell, 116 id. 334; Murphy v. Whitney, 140 id 541 ; Sawyer v. Cubby, 146 id. 193 ; Williams v. Montgomery, 148 id. 579 ; Haynes V. Sherman, 117 id. 443, 439 ; Emmons v. Cairns, 3 Barb. 348 ; Gott v. Cook, 7 Paige, 531; 34 Wend. 641 ; Eels v. Lynch, 8 Bosw. 465. Roome v. Phillips, 34 N. Y. 463 ; Manice v. Manice, 43 id. 303 ; Ham v. VanOrden, 84 id. 357, 370 ; 54 Hun, 333 ; Hennessy v. Patterson, 85 N. Y. 91 ; Nellis v. Nellis, 99 id. 505, 516. 3. -VBSTING OP REMAINDERS. Bemainders must not only be alienable but vest during the statutory period, p. 389. Contingent remainder limited on a term of years, p. 389. Estate for life as a remainder on a term of years, pp. 340, 389. Fee limited on a fee, pp. 341, 389. Contingent remainder in fee limited on a prior remainder in fee, pp. 386, 389. Contingent remainder limited on more than two successive lives, pp. 390. 4. PERSONAL PROPERTY — VESTING OF OWNERSHIP OF, p. 390. 5. IN WHAT MANNER SUSPENSION MAT BE UNDULY EFFECTED, p. 393 6. SUSPENSION BY THE CREATION OF CONTINGENT EXPECTANT ESTATES, p. 393. 7. TRUSTS — SUSPENSION BY MEANS OF A TRUST, pp. 393-6. Trust dependent on lives of others than beneficiary. Downing v. Marshall, 33 N. Y. 366. II. FUTURE ESTATES. " 369 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. 7. TRUSTS — SUSPENSION BY MEANS OF A TEUST. Different li-eesfor different contingencies in tlie trust. Schermerhorn v. Cotting, 131 N. Y. 48. Distribution of income of trust estate among different persons for several successive lives Phelps V. Pond, 33 N. Y. 69; Crooke v. County of Kings, 97 id. 431; Scliermerhorn V. Cotting, 131 id. 48; Bird v. Pickford, 141 id. 18. Trust for the benefit of unborn beneflaiariea. Gilmau V. Reddington, 24 N. Y. 9; Harrison v. Harrison, 36 id. 518; Woodgate v. Fleet, 64 id. 566. More than two beneficiaries, yet trust limited to one life, and as to each beneficiary the beneficial interest for no longer than his life. Savage v. Burnham, 17 IST. Y. 539; Gilman v. Reddington, 34 id. 19; Harrison v. Harrison, 36 id. 543; Manice v. Manice, 43 id. 386; Rogers v. Tilley, 20 Barb. 639. Trust for more than two lives expiring daring testator's life. Odell V. Youngs, 64 How. Pr. 56. Trustees retaining possession of property and paying income to beneficiary after ex- piration of trust term. Gilman v. Reddington, 34 N. Y. 29. Trustees receiving and paying income to beneficiary after his maturity until the ex- piration of designated lives. Roe V. Vingut, 117 N. Y. 304; Hopkins v. Kent, 145 id. 363. When trustee could not alienate lands during trust term nor cestui que trust dispose of his interest. Garvey v. McDevitt, 73 N. Y. 556 ; Robert v. Corning, 89 id. 335 ; Radley v. Kuhn, 97 id. 36 ; Crooke v. County of Kings, id. 431. When trust estate is alienable. Radley v. Kubn, 97 N. Y. 36. Proceeds of sale continuing under the trust. Heermans v. Robertson, 64 N. Y. 333 ; Brewer v. Penniman, 73 id. 603 ; Robert v. Corning, 89 id. 335 ; Hobson v. Hale, 95 id. 588 ; Cruikshank v. Home, «tc., 113 id. 337 ; Haynes v. Slierman, 117 id. 433 ; Fowler v. IngersoU, 137 id. 473 ; Allen v. Allen, 149 id. 380. Discretion in trustees to accelerate diati'ibution. Smith V. Edwards, 88 N. Y. 93. Wlien trustee has discretion to sell. Robert v. Corning, 89 N. Y. 335 ; Henderson v. Henderson, 113 id. 1, 13. Trusts by implication. Tobias v. Ketchum, 33 N. Y. 319 ; Robert v. Corning, 89 id. 335 ; Purdy v. Hayt, 93 id. 446 ; Ward v. Ward, 105 id. 68. Effect of a power in trust in creating suspension, pp. 393, 396. Trust will not be implied where it will create unlawful suspension. Tucker v. Tucker, 5 N. Y. 408 ; Smith v. Edwards, 88 id. 92 ; Robert v. Corning, 89 id. 335 ; Green v. Green, 135 id. 506, 513 ; Bean v. Bowen, 47 How. Pr. 306. Trust — when property is alienable. Everitt v. Everitt, 39 N. Y. 39; Robert v. Corning, 89 id, 335 ; Radley v. Kuhn. 97 id. 31 47 370 X. ESTATES IN EXPECTANCT. 33. SUSPENSION OF POWER OF ALIENATION OB OF ABSOLUTE OWNERSHIP. 7. TKUBTS — SUSPENSION BY MEANS OP A TUUST. Trusts — when hy their terms or nature t/ie property is alienable. Robert V. Corning, 89 N. Y. 235, 235, 339 ; Harrison v. Harrison, 113 id. 1, 13; Stewart v. Hamilton, 37 Hun, 19. Where cestui que trust of an express trust may be empowered to sell in contravention of a statute. Coster V. Lorillard, 14 Wend. 333. WhetJier trustees may be empowered to sell. Belmont v. O'Brien, 13 N. Y. 394 ; Rogers v. Rogers, 111 id, 238, 838 ; McArthur V. Gordon, 51 Hun, 511 ; 136 N. Y. 597. Trusts limited to begin in the future may cause suspension, Manice v. Manice, 43 N. Y. 303, 365 ; Mason v. Mason's exrs., 2 Sandf. Cli. 433, affirmed 3 Barb. 329. Secret trusts. Matter of O'Hara, 95 N. Y. 403 ; Matter of Kelemen, 57 Hua, 165 ; Bache v. Tom- linson, 34 N. Y. Weekly Dig. 93. Trusts void, whether valid as a power in trust. N. Y. Dock Co. V. Stillman. 30 N. Y. 174 ; Adams v. Perry, 43 id. 487 ; Cooke v. Piatt, 98 id. 35 ; Hag^irty v. Hagerty, 9 Hun, 175 ; Hawley v. James, 16 Wend. 174, 175 ; Lange v. Ropke, 5 Sandf. 363. 8. LIVES IN BEING, pp. 399-400. Suspension can be for no more than two lives in being. Knox V. Onativia, 47 N. Y. 389; Rice v. Barrett, 103 id. 161; Ward v. Ward, 105 id. 68; Genet V. flunt, 113 id. 158; Dana v. Murray, 133 id. 604; Coster v. Lorillard, 14 Wend. 365; Parks v. Parks, 9 Paige, 106; Thorn v. Coles, 3 Edw. Ch. 330; Geraiid V. Geraud, 58 How. Pr. 175; VanVeeliten v. VanVegbten, 8 Paige, 103. Successive life estates, remainder limited on more than two, pp. 885, 390. Amory v. Lord, 9 N. Y. 403; Woodruff v. Cook, 61 id. 638; Purdy v. Hayt, 93 id. 446; Crooke v. County of Kings, 97 id. 431; Benedict v. Webb, 98 id. 480; Genet v. Hunt, 113 id. 153; Dana v. Murray, 123 id. 604. See Van Scbuyver v. Mulford, 59 N. Y. 426. See Salmon v. Stuyvesant, 16 Wend. 320; Root v. Stuyvesant, 18 id. 356: Emmons V. Cairns, 3 Sandf. Ch. 869. Lives, how they may he designated, p. 399. Jennings v. Jennings, 7 N. Y. 547; Hawley v. James, 16 Wend. 61. , Designated lives may be stranger.i or beneficiaries, p. 399. Crooke v. County of Kings, 97 N. Y. 431 ; Bailey v. Bailey, id. 460. Suspension for more than two lives. Amory v. Lord, 9 N. Y. 403; Cbipman v. Montgomery, 63 id. 331; Ward v. Ward, 105 id. 08; Sbipman v. Rollins, 98 id. 311; Genet v. Hunt, 113 id. 158; Dana v. Mur- ray, 123 id. 604; Morris v. Porter, 53 How. Pr. 1; Tbomson v. Thomson, 65 id, 494. See Mulry v, Mulry, 89 Hun, 531, Trust to pay income for more than two lives. Knox V, Onativia, 47 N. Y. 389: Van Schuyver v. Mulford, 59 id. 436; Genet v. Hunt, 113 id. 153: Harris v, Clark, 7 id, 3)3, II. FUTURE ESTATES. 371 83. SUSPENSION OF POWER OF ALIENATION OR OF ABSOI;UTE OWNERSHIP. 8. LIVES IN BfelNG. Suspension for joint lives. Colton V. Fox, 67 N. Y. 348. After two lives share given upon the same contingency asfi/rimrly. Savage v. Buraham, 17 N. Y. 561. 9. MINORITIES, p. 400. A minority counts for a life, pp. 383, 401. Suspension for more than two minorities and lives. Roome v. Phillips, 24 N. Y. 463; Manlce v. Manice, 43 id. 380; Savage v. Bum- ham, 17 id. 561; Radley v. Kuhn, 97 id. 26; Vail v. Vail, 7 Barb. 236; Tayloe v. Gould, 10 id. 338; Hawley v. James, 16 Wend. 61; Lange v. Ropke, 5 Sandf. S. C. 363; Scott v. Monell, 1 Redf. 431. Suspension during two minorities, further suspension of a share during the life of one of the minors, and a share during the life of another child. Benedict v. Webb, 98 N. Y. 460. Trust to receive and pay rents to a person named during several minorities. Provoost V. Provoost, 70 N. Y. 141. 10. SUSPENSION FOR A DEFINITE OR INDEFINITE TIME, p. 401. Tucker v. Tucker, 5 N. Y. 403; Dodge v. Pond, 23 id. 69; Beekman v. Bonsor, id. 298; Smith v. Edwards, 88 id. 93; Converse v. Kellogg, 7 Barb. 590; Hone's Exrs. v. Van Schaick, 20 Wend. 564; Butler v. Butler, 1 Hoff. Ch. 344, affi'd 3 Barb. Ch. 304; Morgan v. Masterton, 4 Sandf. 443; Trowbridge v. Metoalf, 5 App. Div. 318. Trust for lives or for a term in gross. Dodge V. Pond, 23 N. Y. 69. Devise for a term of years. Blanchard v. Blanchard, 70 N. Y. 615. Suspension to a particular time. DeKay v. Irving, 5 Denio, 646. Bequest to a child born within a certain number of years after testator's death. Smith V. Edwards, 88 N. Y. 92. Oift to issue, living at tlie time of partition, postpones for a term of years. Henderson v. Henderson, 113 N. Y. 1. Devise to B. until a village be incorporated, then to the trustees of the milage. Leonard v. Burr, 18 N. Y. 96. Trust for a term in gross. Garvey v. McDevitt, 72 N. Y. 556; Rice v. Barrett, 103 id. 161 ; Cruikshank v. Home, etc., 113 id. 337; Coster v. Lorillard, 14 Wend. 365; Hone's Exrs. v. Van Schaick, 30 id, 563, aff'g 7 Paige, 221; Boyaton v. Hoyt, 1 Denio 58; Craig v. Hone, 2 Edw. Ch. 528; Bean v. Bowen, 47 How. Pr. 305; Gano v. McCunn, 56 id. 337. Trust until a person arrives at a certain age, with remainders. Radley v. Kuhn, 97 N. Y. 36. Principal not payabP. until children attain a certain age. Fowler v. Depau, 26 Barb. 234; Doubleday v. Newton, 27 id. 43t. 372 X. ESTATES IN EXPECTANCE. 23. SUSPENSION OF POWER OF ALIENATION OR OP ABSOLUTE OWNERSHIP. 10. SUSPENSION FOE A DEFINITE OR INDEFINITE TIME. Powers to he exercised after a time certain, pp. 396-7. Incidental delays. Robert v. Corning, 89 N. Y. 335; Cruikshank v. Home, etc., 113 Id. 837; People v. Simonson, 135 id. 399. Estates limited for an arbitrary period, but expiring daring two designated lives. Plielps V. Pond, 23 N. Y. 69; Oxlej v. Lane, 35 id. 340, 345; Bailey v. Bailey, 97 id. 460; Genet v. Hunt, 113 id. 158; Sohermerhorn v. Cotting, 131 id. 48; Montig- hani v. Blade, 145 id. Ill; Prichard v. Thompson, 39 Hun, 395; Levy v. Hart, 54 Barb. 348; Thompson v. Clendening, 1 Sandf. Oh. 387, 395; Claucey v. O'Gara, 4 Abb. N. C. 368; DeKay v. Irving, 5 Denio, 616. Estates for a life or a sliorter period measured by years within that life. Montignani v. Blade, 145 N. Y. Ill; Sawyer v. Cubby, 146 id. -193. Suspension for more than two lives absolutely bounded by two Uses, p. 403. Purdy V. Hayt, 93 N. Y. 446; Crooke v. County of Kings, 97 id. 431; Bailey v. Bailey, id. 460; Bird v. Pickford, 141 id. 18; Rogers v. Tilley, 30 Barb. 639. Suspension until a mortgage shall have b^en paid from rents. Killam v. Allen, 53 Barb. 605. Bee post, p. 403. Suspension until partition shall have been made. Henderson v. Henderson, 113 N. Y. 1; see Hoae's Exrs. v. Van Schaick, 3 Wend. 563. Bequest for an object if another sum be also contributed to it or raised. Dodge V. Pond, 33 N. Y. 69; Booth v. Baptist Church, 136 id. 315. Oift to trustees for three years, and if money is not applied to a statue, or if it be inadequate, over. Morgan v. Masterton, 4 Sandf. 443. Suspension until the legislature shall pass an act, is not good, unless limi'ed to two Phelps V. Pond, 33 N. Y. 9; Beekman v. Bonsor, id. 306; Levy v. Levy, 33 id. 97; Burrill v. Boardman, 43 id. 354; Holmes v. Mead, 53 id. 333; Shipman v. Rol- lins, 98 id. 311; Cruikshank v. Home, etc., 113 id. 337; Booth v. Baptist Church, 136 id. 315; People v. Simonson, id. 399; Tilden v. Green, 130 id. 39; Rose v. Rose, 4 Abb. Ct. App. Dec. 108. Bequest to such persons as judges may appoint to receive it. Bascom v. Albertson, 34 N. Y. 584; see Prichard v. Thompson, 39 How. Pr. 395. 11. OOEPORATIONS, GIFTS TO, p. 409. Oift to a corporation incorporated under a general law. Cruikshank v. Home, etc., 113 N. Y. 387; People v. Simonson, 136 id. 399. Oift to a charitable corporation, with direction that the principal be kept inviolate and income only expended. "Williams v. Williams, 8 N. Y. 534; Wetmore v. Parker, 52 id. 450; Robert v. Corning, 89 id. 325; Prichard v. Thompson, 39 Hun, 395; Wilson v. Lynt, 30 Barb. 134. Oift to charitable and educational institutions. Adams v. Perry, 43 N. Y. 487; Stevenson v. Lesley, 70 id. 513; Cottman v. Grace, 113 id. 399. II. FUTURE ESTjiTES. 373 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. 11. COBPORA.TIONS, GIFT TO. Qift to an incorporated assooiation. Banks v. Phelaa, 4 Barb. 80. Oift to a Lodge of Free Masons. Iseman v. Myres, 26 Hun, 651. Oift to a town. Iseman v. Myres, 26 Hun, 651. Devise to a town to pay income to the poor. Fosdiokv. Hempstead, 125 N. Y. 581; Inman v. Myres, 26 Hun, 651 (see cases cited); Matteson v. Matteson, 51 How. Pr. 276. Bequests to trustees for the benefit of the rector of a church for the time being. Holmes v. Mead, 52 N. Y., 332; Wilson v. Lynt, 30 Barb. 124. Devise to a church to buy coal for the poor of the church. Bird V. Merklee, 144 N. Y. 544. Qift to the officers of a corporation. Williams v. Williams, 8 N. Y. 525; Manice v. Manice, 48 id. 814, 387; Adams v. Perry, id. 487; Cottman v. Grace, 112 id. 299; Inman v. Myres, 26 Hun, 651. Trusts for cemetery purposes. Reed v. Williams, 125 N. Y. 560. Charitable uses, p. 409. Holmes v. Mead, 52 N. Y. 333; Cottman v. Grace, 112 id. 299. 12. SUSPENSION FOR LIVES OF PERSONS NOT IN BEING, p. 399. Woodgate v. Fleet, 44 N. Y. 1; 64 id. 566; Genet v. Hunt, 113 id. 158. Trust for life of widow or wife; when for life of person not in being, p. 400. Schettler v. Smith, 41 N. Y. 328; Tiers v. Tiers, 98 id. 568; Van Brunt v. Van Brunt, 111 id. 178; Stevens v. Miller, 3 Duer, 597; Durfee v. Pomeroy, 7 A.pp. Div. 431; seeBurrill v. Boavdman, 43 N. Y. 259; Knox v. Jones, 47 id. 397; Smith v. Ed- wards, 88 id. 104; Haynes v. Sherman, 117 id. 437; Underwood v. Curtis, 127 id. 540. Bequest to children in esse, whether affected by failure as to those born at a period too remote. Smith V. Edwards, 88 N. Y. 92. Trust in favor of unborn children not outrunning a designated life. Rogers v. Tilley, 20 Barb. 639. 18. POWERS, pp. 392, 896. Perpetuity can not be created by means of a power any more than by any other limi tation. Booth v. Baptist Church, 126 N. Y. 215. W7ieth.er power effected an undue suspension. Schettler v. Smith, 41 N. Y. 328; Van Brunt v. Van Brunt, 111 id. 178; Persons v. Snook, 40 Barb. 44. Power of sale suspending vesting of fee. Delaney v. McCormack, 88 N. Y. 174; Delafleld v. Shipman, 103 id. 463; Dana v. Murray, 122 id. 604. 874 X ESTATES IN EXPECTANCY. 23. SUSPENSION OF POWER OP ALIENATION OR OF ABSOLUTE OWNER-SHIP. 13. POWBilS. Direetim to executors to sell after a certain time. Beekman v. Bonsor, 33 N. Y. 317; Blanchard v. Blanchard, 70 id. 615; Garvey v. McDevitt, 73 id. 556; Robert v. Coming, 89 id. 235; Weeks v. Cornell, 104 id. 335; Henderson V. Henderson, 113 id. 1; Dana v. Murray, 133 id. 604; Deegan v. Wade, 144 id. 573; Stewart v. Hamilton, 37 Hun, 19; Persons v. Snook, 40 Barb. 144; Trow- bridge V. Metcalf, 5 App. Div. 81.8. Power of appoinimenl of successive life estates to persons not in being. Salmon V. Stuyvesant, 16 Wend. 330; Root v. Stuyvesant, 18 id. 356. Power in trust to appoint remainders, and limitations ovei — wTien void. Root V. Stuyvesant, 18 Wend. 356. Power to make leases for sixty-three years. Root V. Stuyvesant, 18 Wend. 356. Power to make partition after a gross term of years. Hone"s Exrs. v. Van Schaick, 20 Wend. 563; see, Henderson v. Henderson, 118 N. T. 1. Power to lease for more than two lives. "Van Vechten v. Van Veghten, 8 Paige, 103. Power to lease land until it can he sold may be void and yet power to sell valid. Haxtun v. Corse, 2 Barb. CIi. 506. Power to receive rents and to divide when youngest surviving of four children become of age. McSorley v. Leary, 4 Sandf. Ch. 414. Power of appointment by will causing undue suspension. Thomson v. Livingston, 4 Sandf. 539. Power to hold possession of land and pay net income to owner. Tucker v. Tucker, 5 N. Y. 408; Everitt v. Everitt, 29 id. 39; Post v. Hover, 38 id. 593; Vanderpoel v. Loew, 113 id. 167; Hawley v. James, 16 Wend. 61; Gilman v. Reddington, 24 K. Y. 5; Roe v. Vingut, 117 id. 204; Hopkins v. Kent, 145 id. 368. Oifts to such corporations as executors should select. Pricliard v. Thompson, 39 How. Pr. 395; see Bascom v. Albertson, 34 N. Y. 584. Whether execution of power created perpetuity. Downing v. Marshall, 23 N. Y. 366; Mott v. Ackerman, 93 id. 539; Beardsley v. Hotohkiss, 96 id. 201. Possibility that donee of power may execute estate too remote, pp. 397-8. Baker v. Lorillard, 4 N. Y. 257; Radley v. Kuhn, 97 id. 26; Crooke v. County of Kings, id. 431, 445; Salmon v. Stuyvesant, 16 Wend. 320; Root v. Stuyvesant, 18 id. 256; Hone's Exrs. v. Van Schaick, 20 id. 569. Power to sell at termination of void estate. Dana v. Murray, 122 N. Y. 604. WTien power to sell fell with void trust. Benedict v. Webb, 98 N. Y. 460. Whether void limitation of interest in trustees of sale avoids the power of sale. Robert v. Corning, 89 N. Y. 225; Fowler v. IngersoU, 137 id. 472. Gift of income for a term of years. Matteson v. Matteson, 51 How. Pr. 376. II. FUTURE ESTATES. 375 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. 13. POWERS. CHft 'payable or division to be made at a certain age — over twenty-one. Tliomsoa v. Livingston, 4 Sandf. 539; American Bible Society v. Stark, 45 How. Pr. 160. Tr-ast toinvestand from interest accruing during acertain number of years topay the legacies. Matter of Starr, 2 Duer, 141. Estates created in execution of a power, pp. 397-8. Crooke V. County of Kings, 97 N. Y. 421. WJietlier qualified power of alienation created legal suspension Amory v. Lord, 9 N. Y. 403; Allen v Allen, 149 id. 380. Whetlier power of sale effected suspension when beneficiaries could alienate, pp. 396-7. Heermans v. Robertson, 64 N. Y. 532; Hetzel v. Barber, 69 id. 1. W/iet/ier power of sale created undue suspension. Beaumont v. Beaumont, 91 N. Y. 464; Wager v. Wager, 96 id. 164; Grain v. Wright, 114 id. 307; Haynes v. Sliermau, 117 id. 433. WTietTier power may prevent an undue suspension. Fitzgerald v. Topping, 48 N. Y. 438; Heermans v. Robertson, 64 id. 332, 352; Robert v. Corning, 89 id. 325; Brewer v. Penninam, 73 id. 603, afE'g 11 Hun, 147; Hobson V. Hale, 93 N. Y. 609; Haynes v. Sherman, 117 id. 433. Whether void power in trust defeats beneficial intereits. Lange v. Ropke, 5 Sandf. 363; Lange v. Wilbraham, 3 Duer, 171. Period of suspension dates from the creation of the power. Crooke v. County of Kings, 97 N. Y. 431; Genet v. Hunt, 113 id. 158; Dana v. Murray, 122 id. 604. 14. SUSPENSION UNTIL ONE OF A CLASS ARRIVES AT A DESI8NATED AGE, pp. 399, 403. Suspension until majority of youngest child. Everitt v. Everitt, 39 N. Y. 39; Will of Butterfield, 133 id. 473; Levy v. Hart, 54 Barb. 248; Thompson v. deadening, 1 Sandf. Ch. 387; Est. of Ruppert, Tucker, 480; Dorland v. Borland, 3 Barb. 63. Suspension until youngest child, naming him, becomes of age. McGowan v. McGowan, 3 Duer, 57. Suspension until youngest grandchild now born or that ma,y be hereafter born, be- comes of age. Smith V. Edwards, 88 N. Y. 93. Division on arrival of a designated living youngest grandchild at the age of twenty- one and on death of G. Roe V. Vingut, 117 N. Y. 204. Suspension until the youngest child now living shall arrive at the age of twenty-one years, or would arrive at that age if living. Haynes v. Sherman, 117 N. Y. 433; Hunter v. Hunter, 17 Barb. 25. Suspension until youngest grandchild fiat may be born within twenty years shall arrive of age. Smith V. Edwards, 88 N. Y. 93. 376 X ESTATES IN EXPECTANCY. 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. 14. SUSPENSION UNTIL ONE OP A CLASS ARRIVES AT A DESIGNATED AGE. Suspension until the eldest surviving child shall be of age. Jennings v. Jennings, 7 N. Y. 547. Trust for lives and to pay income to other children and as soon as the youngest child or any of them shall become of age to sell and divide. O'Brien v. Mooney, 5 Duer, 57. Trust during the life of 0. and until the arrival of B. of age of twenty-one or B.'s previous death. Koe V. Vingut, 117 N. Y. 304. Provision that the property sltall be kept undisposed of for use of children under age and unmarried after the life estate. Williams v. Conrad, 30 Barb. 534. Oift to A. provided he liave heir arriving at majority, if not, over. Brown v. Evans, 34 Barb. 594, Oift for wife and children under age, and if youngest child should not arrive at age then division. Burke v. Valentine, 53 Barb. 413; see DuBois v. Ray, 35 N. Y. 165; Butler v. But- ler, 3 Barb. Ch. 310. Estate to be sold and divided when youngest surviving of four children shall become of age. McSorley v. Leary, 4 Sandf. Ch. 414. Tru^t to sontinue until the testator's youngest child would, if living, attain a certain, age. Boynton v. Hoyt, 1 Denio, 53. Trust to continue until the youngest of testator's children (more than two) attaining the age of twenty-one years, should have attained that age. Coster V. Lorillard, 14 Wend. 265; Hawley v. James, 16 id. 61; Schmidt v. Kahrs, 1 Dem. 114. Trust until the eldest child of 8. , first taker of income, shall arrive of age. Two chil- dren lining at, and one born after testator's death. Butler V. Butler, 1 Hoff. Ch. 344, afiE'd 3 Barb. Ch. 304. "On my youngest child attaining the age of twenty-one yea/rs" referred to the youngest at the testator's death. Eells V. Lynch, 8 Bosw. 465. Trust until four children, or the youngest survivor of them, shall have attained the age of twenty-one years. Benedict v. Webb, 98 N. Y. 460. 15. SUSPENSION BY PROVISIONS FOR SURVIVORSHIP. Chipman v. Montgomery, 63 N. Y. 331.; Kelso v. Lorillard, 85 id. 177; Matter of Verplank, 91 id. 439; Beardsley v. Hotchkiss, 96 id. 301; Nellis v, Nellis, 99 id. 505; Vanderpoel v. Loew, 113 id. 167; Dana v. Murray, 133 id. 604; Banks v. Phelan, 4 Barb. 80; Bulkley v. Depeyster, 36 Wend. 31; Wood v. Wood, 5 Paige, 595; De Peys- ter v. Clendening, Sid. 394; Thorn v. Cole,5, 3 Edw. Ch. 330; Cromwell v. Croi.:- well, 3 id. 495. II. FUTURE ESTATES. 377 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNEKSHIP. 15. SUSPENSION BY PROVISIONS FOR SURVIVORSHIP. Shai'e going over to suri'ivors on the death of one of several legatees is not subject tofuither suspension, p. 280. Miller v. Emans, 19 N. Y. 384; Everitt v. Everitt, 29 id. 39; Smith v. Scholtz, 68 id. 41; Mooi-e v. Hegeman, 72 id. 376; Yanderpoel v. Loew, 112 id. 167; Meserole v. Meserole, 1 Hun, 66. Trust for A., B. and C, survivor or survivors; if B. and G. died before A., corpus to A.; if A. died before B. and G., corpus to A.'s appointees. Bird V. Pickford, 141 N. Y. 18. To what time words of survivorship refer — see Death, estates on contingency of, p. 346. Three or more legatees taking by survivorship. Oxley V. Lane, 35 N. Y. 340; Chipman v. Montgomery, 63 id. 221. Devise to several persons and limitation to survivors of share of one dying without issue or under age. Miller v. Emans. 19 N. Y. 384. Gift of income to three persons and survivor so long as either should live. Banks v. Phelan, 4 Barb. 80. . Cross remainders. Purdy V. Hayt, 92 N. Y. 451; Mott v. Ackerman, id. 550; Beardsley v. Hotchkiss, 96 id. 214. 16. ALTERNATIVE LIMITATIONS, pp. 242, 386. Savage v. Burnham, 17 N. Y. 561; Post v. Hover, 83 id. 598, 598; Scliettler v Smitli, 41 id. 838; Kiali v. Urenier, 56 id. 220; Moore v. Hegeman, 73 id. 376; Kelso V. Lorillard, 85 id. 183; Purdy v. Hayt, 93 id. 446; Cruikshank v. Home, etc., lia id. 337; Genet v. Hunt, id. 158; Dana v. Murray, 132 id. 604; Fowler v. Depau, 26 Barb. 324; Hinckley v. Mayborne, 93 Hun, 473; Case v. Case, 16 Misc. 893. 17. SUBSTITUTED REMAINDERS. Kelso V. Lorillard, 85 N. Y. 177; Wells v. Wells, 88 id. 323; Robert v. Corning, 89 id. 225; Vanderpoel v. Loew, 112 id. 167; Cruikshank v. Home, etc., 113 id. 337j Booth V. Baptist Church, 126 id. 315. 18. REMAINDERS. Remainders after trust estates. Oilman v. Reddington, 34 N. Y. 9, 15, 16; Embury v. Sheldon, 68 id. 237; Steven- son V. Lesley, 70 id. 512; Genet v. Hunt, 113 id. 158 (172-3); Goebel v. Wolf, id. 405. See, 1 R. S. 729, 63; Woodgate v. Fleet, 44 N. Y. 1; U. S. Trust Co. v. Roche, 116 id. 120; Goebel V. Wolf, 113 id. 405; Townshend v. Prommer. 125 id. 446. Bemain-Jers — acceleration of, pp. 317, 390. Purdy V. Hayt, 92 N. Y. 446, 451; Dana v. Murray, 133 id. 604, 608. 19. ESTATES TO CHILDREN, HEIRS AND ISSUE, See pp. 255-7, 283, 335. Tucker v. Bishop. 16 N. Y. 403; DuBois v. Ray, 35 id. 163; Kiah v. Grenier, 50 id. 230; Colton v. Fox, 67 id. 348; Smith v. Edwards, 88 id. 93; Wells v. Wells, id. 328; Bliven v. Seymour, id. 469; Purdy v. Hayt, 92 id. 446; Beardsley v. Hotch- 48 S78 X. ESTATES IN EXPECTANCY. 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. 19. ESTATES TO CHILDBBN, HBIKS AND ISSUE. kiss, 96 id. 301; Ward v. Ward, 105 id. 68; Vaa Brunt v. Van Brunt, 111 id. 178; Vanderpoel v. Loew, 112 id. 167; Surdam v. Cornell, 116 id. 305; Roe v. Vingut, 117 id. 304; Persons v. Snook, 40 Barb. 144; Burke v. Valentine, 53 id. 413; Hannan v- Osborn, 4 Paige, 336; Grout v. Van Schoonhoven, 1 Sandf. Cli. 336; Morris v. Por- ter, 53 How. Pr. 1. Uncertainty of quantity of interest taken by members of a class. Tucker v. Bishop, 16 N. Y. 403; Titus v. Weeks, 37 Barb. 186. Definite or indefinite failure of issue, p. 403. Trustees v. Kellogg, 16 N. Y. 83; Kiah v. Grenier, 56 id. 330; Nellis v. Nellis, 99 id. 505. 30. CHILD EN VENTRE SA MERE, p. 403. See Mason v. Jones, 3 Barb. 399; Hone v. Van Schaick, 3 Barb. Ch. 488. 31. SUSPENSION OP ABSOLUTE OWNERSHIP OF PERSON ALPKOPEHTY, pp. 383, 390-1. Cruikshank v. Home, etc., 113 N. Y. 337; Greenland v. Wadell, 116 id. 334; Con- Terse v. Kellogg, 7 Barb. 590; Kane v. Gott, 24 Wend. 641 ; Grout v. Van Schoon- ioven, 1 Sandf. Ch. 336. Mule respecting vesting of personal property, pp. 390-1. Section 16 does not apply to Manice v. Maniee, 43 N. Y. 303, 381. Trust of personal property may be created for any purpose, p. 619. Application of doctrine of equitable conversion. Wells V. Wells, 88 N. Y. 333; Cruikshank v. Home, etc., 113 id. 337; Booth v. Baptist Church, 136 id. 215. Suspension as affected by direction for payment of annuities or legacies. Wetmore v. Truslow, 51 N. Y. 338 ; Johnson v. Cromwell, 26 Hun, 499 Radley V. Kuhn, 97 N. Y. 36 ; Griffen v. Ford, 1 Bosw. 120 ; O'Brien v. Mooney, 5 Duer, 51; Thomson v. Livingston, 4 Sandf. 539; Matter of Starr, 3 Duer, 141 ; Lange ^?. Ropke, 5 Sandf. 363 ; Hawley v. James, 16 Wend. 61 ; Stewart v. McMartin, 5 Barb. 438 ; Coster v. Lorillard, 14 Wend. 360 ; Hunter v. Hunter, 17 Barb. 25, 93 ; Killam v. Allen, 52 id. 605; Bradhurst v. Bradhurst, 1 Paige, 331, 346; Gott v. Cook, 7 id. 543; Clute v. Bool, 8 id. 83 ; Degren v. Closon, 11 id. 136 ; McGowan v. Mc~ Gowan, 2 Duer, 57. Payment of legacies from rents and profits. Radley v. Kuhn, 97 N. Y. 26. To wTiat extent statutes relating to real property apply to personal. Norris v. Beyea, 13 N. Y. 373 ; Savage v. Burnham, 17 id. 561, 570 ; Tyson v. Blake, 33 id. 558; Graff v. Bonnett, 31 id. 9, 13; Manice v. Manice, 43 id. 303, 881 ; Smith V. Van Ostrand, 64 id. 378 ; Bliven v. Seymour, 88 id. 478 ; Cook v. Lowery, 95 id. 103, 111; Matter of Denton, 103 id. 300; Genet v. Hunt, 118 id. 158, 168; Reed V. Williams, 135 id. 560, 567; Campbell v. Poster, 35 id. 361 ; Williams v. Thorn, 70 id. 370. Laws relating to trusts, Iww far applicable to personalty . Harrison v. Harrison, 36 N. Y. 543; Matter of Verplank, 91 id. 489; Hillyer v. Van- dewater, 131 id. 681, afl'g 34 N. E. Rep. 999; Mason v. Jones, 3 Barb. 339, 343 ; Lor- illard V. Coster, 5 Paige, 328 ; 14 Wend. 315, 835 ; Cromwell v. Cromwell, 3 Bdw. •Ch. 495. X FUTUKE ESTATES. 379 33. SUSPENSION OP POWER OP ALIENATION OR OF ABSOLUTE OWNERSHIP. 21. SUSPENSION OF ABSOLUTE OWNERSHIP OF PERSONAL POWER. When futurity is annexed to the time of payment and not to the substance of the gift, pp. 260, 269, 391. When futurity is annexed to the substance of the gift and not to the time of pay- ment, pp. 339-330, 391. The fact that the whole income in each share, from the death of the parent to the time of payment, is bequeathed to the remainderman, has great weight in denoting an intention to vest the remainder from the tim^ at which tTie income begins to accrue, p. 259. Gilman v. Reddington, 34 N. Y. 10 ; Warner v. Durant, 76 id. 136 ; Smith v. Ed. wards, 88 id. 92; Wells v. Wells, id. 333 ; Manice v. Manice, 43 id. 378 ; Matter of Verplank, 91 id. 439; Kobert v. Corning, 89 id. 335, 241 ; Vanderpoel v. Loew, 113 id. 167; Scliermerhorn v. Cotting, 131 id. 48, 59. Proceeds of sale continuing under trust, p. 369, 393, 395. 23. TENANCY, pp. 395, 404. Whether tenants take jointly or in common. Everitt v. Everitt, 29 N. Y. 39 ; Blanchard v. Blanchard, 70 id. 615, aff'g 4 Hun, 287 ; Matter of Verplank, 91 N. Y. 439, 443 ; Purdy v. Hayt, 93 id. 446 ; Dana v. Murray, 123 id. 604; Lane v. Brown, 20 Hun, 383; Matter of Lapiiam, 37 id. 13. Fact, that issue of a beneficiary may take parent's slmre per stirpes, does not make them tenants in common. Van Brunt v. Van Brunt, 111 N. Y. 178. 23. HB8TRICTI0N ON JUS DispoNENDi. See Conditions, p. 1027. Wetmore v. Parker, 53 N. Y. 450; Robert v. Corning, 89 id. 335; Genet v. Hunt, 113 id. 158; Williams v. Montgomery, 148 id. 519; Morris v. Porter, 53 How. Pr. 1; Converse v. Kellogg, 7 Barb. 590. Restraint on right of immediate partition or division. Doubleday v. Newton, 37 Barb. 431. 24. WHETHER INTERESTS ARE GIVEN IN SEPARATE SHARES OR IN SOLIDO, pp. 404r-5. Everitt v. Everitt, 29 N. Y. 39; Colton v. Fox, 67 id. 348 ; Stevenson v. Lesley, 70 id. 513; Moore v. Hegeman, 73 id. 376; Monarque v. Monarque, 80 id. 330; Smith V. Edwards, 88 id. 92: Matter of Will of Verplank, 91 id; 439; Bailey v. Bailey, 97 id. 460; Tiers v. Tiers, 98 id. 568; Ward v. Ward, 105 id. 68 ; Vanderpoel V. Loew, 113 id. 167 ; Surdam v. Cornell, 116 id. 305 ; Haynes v. Sherman, 117 id. 433 ; Dana v. Murray, 133 id. 604 ; Scliermerhorn v. Cotting, 131 id. 48 ; Burrill v. Shell, 2 Barb. 457; Persons v. Snook, 40 id. 144; Field v. Field, 4 Sandf, Ch. 528. See Trolan v. Rogers, 79 Hun, 507 ; Cromwell v. Cromwell, 3 Edw. Ch. 495; Dickie V. Van Vleck, 5 Redf . 384. Trusts inseparable and void. Knox V. Onativia, 47 N. Y. 389; Van Nostrand v. Moore, 53 id. 13; Colton v. Fox, 67 id. 348 ; Ward v. Ward, 105 id. 68 ; Shipman v. Rollins, 98 id. 311 ; Haynes v. Sherman, 117 id. 433; Will of Butterfleld, 133 id. 473; Hawley v. James, 16 Wend. 61; Field v. Field, 4 Sandf. Ch. 563. 380 X ESTATES IN EXPECTANCY. 33. SUSPENSION OF POWER OP ALIENATION OR OF ABSOLUTE OWNERSHIP. 34. WHETHER INTERESTS ARE GITEN IN SEPARATE SHARES OR IN SOLIDO. Wlien separate trusts are created. Everitt v. Bveritt, 39 N. Y. 39; Savage v. Burnham, IV id. 561; Stevenson v. Lesley, 70 id. 513; Moore v. Hegeman, 73 id. 376: "Wells v. Wells, 88 id. 333; Bailey V. Bailey, 97 id. 460; Vanderpoel v. Loew, 113 id. 167; Woodgate v. Fleet, 44 id. 1 ; Giraud v. Giraud, 58 How. Pr. 175 ; Leavitt v. Wolcott, 65 id. 57. See Mulry v. Mulry, 89 Hun, 531, 533. Provision that if any child sliould die under age her share sliould go to lier issue, if any ; if not, to the survivor, causes each share to vest separately as each be- comes of age, and indicates an intention to divide corpus into shares. Everitt v. Everitt, 39 ZST. Y. 39. See Colton v. Fox, 67 id. 848; Van Brunt v. Van Brunt, 111 id. 178 ; Bulkley v. Depeyster, 36 Wend. 31; Persons v. Snook, 40 Barb. 144; Monarque v. Monarque, 53 How. Pr. 438. 35. WHETHER LEGAL SEPARABLE FROM ILLEGAL PKOViSIONS, AND EFFECT OF VOID PROVISIONS, pp. 405, 406-7. WhetJier th^ purposes of a trust are separable, so that some may be maintained and otliers declared void. Post V. Hover,» 33 N. Y. 593; Oxley v. Lnne, 35 id. 340; Smith v. Edwards, 88 id. 93; Benedict v. Webb, 98 id. 460; Henderson v. Henderson, 113 id. 1 ; Haynes v. Sherman, 117 id. 433; Richards v. Moore, 5 Redf. 378. Whether failure of trust caused failure of devise or bequest. Holmes v. Mead, 53 N. Y. 333. See Hatch v. Bassett, id. 359; Bean v. Bowen, 47 How. Pr. 806. Legal separable from illegal provisions. Stevenson v. Burnham, 17 N. Y. 561; Kiah v. Grenier, 56 id 330 ; Smith v. Ed- wards, 88 id. 93; Haynes v. Sherman, 117 id. 433. Separate legacies valid although general trust was void. Hone's Exrs. v. Van Schaick, 30 Wend. 363. Void ulterior limitations dropped and valid primary dispositions aClbwed to stand, Oxley V. Lane, 35 N. Y. 340 ; Harrison v. Harrison, 36 id. 543 ; Van Schuyver v. Mulford, 59 id. 436 ; Henderson v. Henderson, 113 id. 1 ; Finch v. Wilkes, 17 Misc. 438. When tliere are alternative provisions, the illegality of one does not affect the other. Shipman v. Rollins, 98 N. Y. 311 ; Benedict v. Webb, id. 460 ; Ward v. Ward, 105 id. 68 ; Cruikshank v. Home, etc., 113 id. 337 ; Depre v. Thompson, 4 Barb. 379 ; 8 id. 537 ; Hannan v. Osborn, 4 Paige, 336 ; Parks v. Parks, 9 id. 106 ; Thomson v. Thomson, 56 How. Pr, 444. All life estates and remainders fall with the illegal trust. Hawley v. James, 16 Wend. 61. W7ien power to sell fell with a void trust. Benedict v. Webb, 98 N. Y. 460. WhetJier a failure of a part of the scheme of a will sliould cause the whole scheme to fail. Holmes v. Mead, 53 N. Y. 333 ; Benedict v. Webb, 98 id. 460 ; Rice v. Barrett, 103 id. 161 ; Henderson v. Henderson, 113 id. 1 ; Will of Butterfleld, 133 id. 473 ; Hawley V. James, 16 Wend. 61 ; Root v. Stuyvesant, 18 id. 356 ; Field v. Field, 4 Sandf. Ch, 530. II. FUTURE ESTATES. 381 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. 35. WHETHEB LE&AL SEPARABLE FROM ILLEGAL PROVISIONS, AND EFFECT OF VOID PROVISIONS. Qift to several beneficiaries equally and gift to one void ; tJie others take only their proportional shares. Booth V. Baptist Church, 136 N. Y. 315. When beneficiaries required to elect whether they would accept valid provisions in will, or renounce and take as heirs and next of kin. Hawley v. James, 16 Wend. 61 ; Thompson v. Clendening, 1 Sandf. Ch. 387. When void devise avoids directions for apportionment of estate. Salmon v. Stuyvesant, 16 Wend. 330. The invalidity of a limitation on account of remoteness places all prior gifts in the same situation as if it had been entirely omitteJ in the dispositive system. Lewis on Perp. , 657. Leonard v. Burr, 18 N. Y. 96. Whether, if trust estate be void, estates to legatees remain. Everitt v. Everitt, 29 N. Y. 39 ; Parks v. Parks, 9 Paige, 106 ; Richards v. Moore, o Redf. 378 ; Bean v. Bowen, 47 How Pr. 306. Failure of trust for unborn children did not increase intei'ests of beneficiaries. Woodgate v. Fleet, 44 N. Y. 1. Will directing disposition of property if gift thereof is declared void. Booth V. Baptist Church, 136 N. Y. 315. Devise to executors to carry out provisions that may be declared void. Booth V. Baptist Church, 136 N. Y. 215. In case of void power to lease land descended to heirs subject to right of legatees to have it sold. Van Vechten v. Van Veghten, 8 Paige, 103. When trust is void but purpose may be effected, estate vests in devisees. Beekman v. Bonsor, 33 N. Y. 317-318 ; Helok v. Reinheimer, 105 id. 470, 475. As to powers, see, 1 R. S. 739, sees. 56-59 ; id. 737, sees. 45-48 ; Pislier v. Hall, 41 N. Y. 416 ; Syracuse Savings Bank v. Holden, 105 id. 415. Undue suspension of power of alienation and provision that if gifts be adjudged void the executors slwuld take in trust to carry out void gifts. Booth V. Baptist Church, 136 N. Y. 315. Direction that if estates first limited be void, other persons should take the property. Cruikshank v. Home, etc., 113 N. Y. 337. 26. CONFLICT OF LAWS, p. 407. Chamberlain v. Chamberlain, 43 N. Y. 435 ; Hobson v. Hale, 95 id. 588 ; Cross v. IT. S. T. Co., 131 id, 33 J; Damraert v. Osborn, 140 id, 30; Hillen v. Iselin, 144 id. 365 ; Trowbridge v. Metcalf, 5 App, D;t, 318. 37. COMPUTATION OF PERIOD OF SUSPENSION, p. 404 38, LIMITATION OP CHATTELS REAL, p. 498. 29. MARRIED WOMEN. Fact tliat trustee could convey to a married woman under the act o/1849 did not cure undue suspension. Genet v. Hunt, 113 N. Y. 158. 382 X. ESTATES IN EXPECTANCY. 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. 39. MABRIBD WOMEN. Ti'ust estate, under acts relating to married women. Crooke v. County of Kings, 97 N. Y. 431. 30. DOWER — REFUSAL OF. Whetlm- devise to wife for life in lieu of dower, which slie refused, suspended power of alienation. Bailey v. Bailey, 97 N. Y. 460. 31. WHAT ESTATES OR INTERESTS ARE SUBJECT TO THE STATUTE, pp. 384-5, 409. PossiUUties of reverter, p. 410. Vail V. L. I. R. Co., 106 N. Y. 383 ; Chaplin's Susp. sec. 131. Bight of entry for breach of condition subsequent, ^.410. Chaplin's Susp. sec. 133. Estates defeasible vested, p. 397, 317. Hannan v. Osborn, 4 Paige, 336 ; Robert v. Corning, 89 N. Y. 385, 341. Eeal Prop. L., sec. 32 (L. 1896, ch. 547, took effect Oct. 1, 1896). Suspension of power of alienation. " The absolute power of alienation is suspended, when there are no persons in being by whom an absolute fee in possession can be conveyed. Every future estate shall be void in its creation, which shall suspend tlie absolute pov>rer of alienation, hy 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 that 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 on any other contingency by which the estate of such persons may be determined before they attain full age. For the purpose of this- section a minority is deemed a part of a life and not an absolute term equal to the possible duration of such minority." 1 R. S. 734, sec. 14, Banks's 9th ed. 3176. Void future estates. Suspending power of alienation. Sec. 14. "Every future estate shall he void in its creation which shall suspend the absolute power of alienation for a longer period than is pre- scribed in this article. Such power of alienation is suspended, when there are no persons in being by whom an absolute fee in possession can be conveyed." 1 R. S. 734, sec. 15, Banks's 9th ed. 3176. How long it may be suspended. Sec. 15. " The absolute power of alienation, shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance of not more than two lives in being at the creation of the estate, except in the single case men- tioned in the next section." 1 R. S. 734, sec. 16, Banks's 9th ed. 3176. Contingent remainder in fee. Sec. 16. "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 tlie age of twenty-one years, or upon any other contingency, by which the estate of such persons may be determined before they attain their full age." II. FUTURE ESTATEa 88S «S. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. Suspension of ownership of personal property. Laws of 1897, ch. 417 (ck 47 of Genl. Laws, took effect Oct. 1, 1897), art. 1, sec. 2. " The absolute ownersliip of personal property shall not be suspended by any limitation or condition, for a longer period than during the con- tinuance and until the termination of not more than two lives in beinff at the date of the instrument containing 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; in other respects, limitations of future or con- tingent interests in personal property are subject to the rules prescribed in relation to future estates in real property." 2 R. S. pt. II, ch. 4, tit. 4, Banks's 9th ed. 1857, sees. 1, 3 repealed thereby. Explanatory note to sec. 32. Effect of the changed phraseology of section 32. Former section fourteen provided that a. future estate was void, when there was an undue suspension of the power of alienation, and that a suspension of the power of alienation existed, when there were no per- sons in being by whom an absolute fee in possession could be conveyed. Former section fifteen provided that the absolute power of alienation should not be suspended, hy any limitation or condition whatever^ for more than two lives in being, etc., except in the case mentioned in sec- tion 16. Section fifteen, by itself, was sufficient to include a vested estate. Section thirty-two, however, while retaining the former definition of suspension, and the permitted continuance thereof, applies the entire prohibition io future estates, and declares that " &vexy future estate shall be void in its creation, which shall suspend the absolute power of aliena- tion by any limitation or condition whatever," etc. Section thirty-two, therefore, hy its terms, has sole reference io future estates. It has, with good reason, been suggested that this excludes from its operation estates vested in trustees. While probably not so intended by the original revisers, section fifteen has been regarded as broad enough in its terms to include estates vested in trustees under an express trust. An express trust can only be formed under section seventy-six (former section 55). In such a case the trustee takes the title (section 80, former section 60), and a sale in contravention of the trust is void by section eighty-five (former section 65) ; and a restriction is placed upon the alien- ation of the beneficiaries' interests by section eighty-three, former section 384: X. ESTATES IN EXPECTANCY. 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. sixty-three. Therefore, property held in trust under these statutes is, at least in certain cases, inalienable, and the question arose, for what period such a trust could continue. Subdivision three of section seventy- six provides that a trust may be created " to receive the rents and profits of real property and apply them to the use of any person, during the life of that person, or for any shorter term, subject to the provisions of law relating thereto." Subdivision three, as contained under former section fifty-five, read somewhat differently, viz., " 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." Subdivision four of section seventy-six permits a trust for accumu- lation of rents and profits for the purposes, and " within the limits pre- scribed by law" or, under former section fifty-five, " within the limits prescribed in the first article of this title." These provisions and references, with the language of section fifteen, were thought sufficient to bring subdivision three of section fifty- five under section fifteen, limiting the duration of the suspension of the power of alienation, and subdivision four of section fifty-five under the sections relating to accumulation. This was accomplished by the reference to the first article of the title, as contained in section seventy-six in connection with the general language of section fifteen, whose terms were such that it could be made applicable to a vested estate, by such a provision as was contained in former section fifty -five. It will be observed now, however, that any special reference to the first article is stricken from section seventy -six, and what is essentially serious, that section thirty-two is re-arranged so as to apply to future estates only; hence, it could be applicable to trusts only so far as trusts could be regarded as future estates, or by their existence could suspend the absolute power of alienation of future estates. It is not logically conceivable that section thirty-two, under its present reading, can have any reference to an estate held under an express trust, whatever effect it may have upon the contingent estates dependent thereon. The correc- tion seems to rest with the legislature alone. Relation of section 32 to sections 33 a7id 35. Although by incorporation it has been made applicable to trusts, sec- tion thirty-two (former sections 14 to 16) primarily relates to contingent and not to vested, estates. The revisers so intended and the courts have See this subject forcibly and correctly discussed in Chaplin's Express Trusts and Powers, p. 373. II. FUTURE ESTATE. 385 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. SO held. Wetmore v. Parker, 52 N. Y. 450, 458; Williams v. Wil- liams, 8 id. 536 ; Kane v. Gott, 24 Wend. 662. On the other hand, vested estates are alone embraced in sections thirty-three to thirty- five. Where the remainder is vested, as where the lands are given to A. for life, remainder to B. (a person in being), in fee, there is no suspension of the power of alienation ; for B., the remainderman, and A., the taker of the life estate, own the entire title, and, by uniting, may always con- vey the whole estate.' Nor would the case be changed if there were two or more precedent life estates. Since, then, section thirty-two treats of contingent future estates, and sections thirty-three to thirty-five of vested estates, it follows that so far as section thirty-two is concerned, estates may be given for any number of lives with remainder, provided the estates be vested in persons in being. The prohibition against this is found in sections thirty-three and thirty five (former sections 17 and 19). Amory v. Lord, 9 N. Y. 403 ; Purdy v. Hayt, 92 id. 446 ; Dana v. Murray, 122 id. 618. Hence, if a devise be to A. for life, then to B. for life, then to C. for life (persons in being), there are three lives ; if now a remainder be given to D. (in being), section seventeen is violated, yet there is no suspension of the power of alienation, since the estates are all vested, and the owners of the several estates, by uniting, can convey the whole title ; but if the devise be to A. for life, B. for life, C. for life, and remainder to the heirs of 0. living at C.'s death, there is a contingent remainder limited on three lives, and as the remainder is contingent, since it can not be known until the death of C. who the remaindermen will be, there are no persons in being, by whom an absolute fee in possession can be conveyed, and the power of alienation ia unduly suspended within the meaning of section thirty-two.' Had the same remainder been limited upon estates for life to A. and B., the devise would have beeri valid, because the inability to abso- ■And so it will be seen later that the creation of a contingent estate will not, save as hereafter stated, p.389, suspend the power of alieaatlon, if the person be ascer- tained who is entiiled to such estate ; for in such case it is vested in right (as to the distinction between remainders vested in possession, in interest and in right, see pp. 254, 359) although not in interest, and the owners of the several estates may unite and convey. 'Suppose the life estates were successively to A., B. and C, with remainder to D. (a person in being) upon an event that may not happen until C.'s death. Here all the interests may be conveyed, and under the rule by which the violation of section thirty-two is usually tested there is no undue suspension, and so there is not unless the statute requires the estate of D. to vest within two lives. As to this, see p. 390. 49 386 X. ESTATES IN EXPECTANCY. 33. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. lutelj convey could continue only through two lives in being. Under section thirty-two, it will be noticed, vae future estate alone is void, but if a vested remainder be limited on more than two successive lives, or more than two lives, the remainder is, by sections seventeen and nineteen (present sections 33 and 35) not defeated, but takes effect upon the ex- piration of the proper number of lives, but the first two life estates only are valid ; or if a life estate be given for the lives of third persons, more than two, it will run through the life of the first two named, as provided by section thirty-five. Relation of former sections 15 and 16. The relations of former sections fifteen and sixteen (now inconven- iently merged into one section, 32) should be noticed. Section sixteen enlarges the time within which the second remainder may take effect. In every other case the remainder must take effect so as to permit an absolute alienation of the property before or at the expiration of two lives ; but only in cases arising under section sixteen may the second •remainder take effect during the two lives and the minority' of the first remainderman, and this exception applies to real property and not to personalty. Manice v. Manice, 43 N. Y. 305 ; "Woodgate v. Fleet, 64 id. 566-572. See pp. 868, 390. This section applies only to remainders and does not apply to a de- vise to A. in fee and upon some contingency happening in A.'s life, then to B. in fee. But by section forty it is provided that a fee may be lim- ited on a fee upon a contingency, which if it should occur, must happen within the period jtrescribed in this article, viz., two lives in being. Page 241. Having now stated the relation of section thirty-two to sections thirty- three and thirty-five, and the purpose of such part of section thirty-two as was formerly contained in section sixteen, a brief reference to the sal- ient features of the prohibition contained in these sections may be useful. 'In the Revisers' notes, R. S., vol. 3, 3d ed. , 573, it is said: "Suppose an es- tate devised to A. for life, and upon his death, to his issue then living ; but in case such issue shall die under the age of twenty-one years, or in case such issue shall die under the age of twenty-one years and without lawful issue, then to B. in fee. Here in both cases, the remainder to B. would be valid as embraced by the terms of the section ; but if the devise were to A. for life, and after his death to B. for the term of twenty-one years, and upon the expiration of such term, to the eldest male de- scendant of A. then living, and if there be no such male descendant then living, to C. in fee, here the period of twenty-one years, being an absolute term, wholly un- connected with the infancy of any person entitled, both the term and all the remain- ders dependent upon it would be void ; and on the determination of the life estate, the fee would descend to the heirs of the testator." II. FUTUEE ESTATES. 387 23. SUSPENSION OF POWER OF ALIENATION OR OP ABSOLUTE OWNERSHIP. The rule in New York and that of the common law compared. The English rule (obtaining also in many American states) is, that a future contingent estate may be limited to begin in enjoyment during any number of lives in being at the creation of the estate, and in addi- tion twenty-one years, and in addition the necessary period of gestation of a child en ventre sa mere. This rule was, painfully to suitors, de- duced through many years of inharmonious decisions. It was finally established in the Duke of Norfolk's Case (3 Oh. Cas. Pallex 223, 2 Cb. 229), that a future interest might be limited to begin on a contingency which must occur within any number of lives in being. Kent's Com. vol. 4 *266(288), Gray's Perpetuities, 115. It was thereafter established that this period might be extended beyond a life or lives in being, so as to cover the time necessary for the birth of a posthumous child, and un- til such child should become of age. Kent's Com. *267 (289), Gray's Perpetuities 121; Stephens v. Barnard, 2 K. B. 375, Cas. Temp. Talb. 228. So this addition of twenty-one years originally related to minor- ities, but it was questioned whether the suspension could be for lives in being and an additional twenty-one years in gross, that is for lives and a term of years unconnected with the minorities of the persons who should take under the limitation, and it was in 1832 definitely decided in the affirmative. Kent's Com. vol. 4 *268-9 (note d) ; Gray's Per- petuities, 122, etc. Hence, the common law rule favors a suspension dur- ing (1) any number of lives in being when the estate is created, and (2) a minority or twenty-one years in gross, and (8) sufficient additional time to reach the case of the gestation and birth of a posthumous child. The original revisers of the New York Revised Statutes, disallowed (1) a term in gross, i. e. a term for an arbitrary time, (2) a suspension for more than two lives, save in a single instance, Viz., where a contin- gent remainder in fee is limited upon a prior remainder in fee, deter- minable during the minority of the first remainderman ; in which case the suspension may be for two lives and such minority, and such is the statute of New York. Manice v. Manice, 43 N. Y. 303, 375. Rule for determining whether there is an undue suspension. At common law, questions relating to perpetuities turn upon the re- moteness of the estate, that is, whether they will vest within the pre- scribed period. Under the statutes of New York, the inquiry, save as to the vesting of remainders (p. 389), relates entirely to the absolute alienability of the property; that is, whether the title will vest in right 388 X ESTATES IN EXPECTANCY. 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. withia the statutory period. The sole inquiry is, are there persons in be- ing, or during two designated lives must there he persons in being hy whom an absolute estate in possession can be conveyed or transferred? If this question be answered in the affirmative, there is no undue sus- pension of the power of alienation of real property, or of the absolute ownership of personal property. Eeal Prop. L. sec. 32 ; 'Robert v. Corn- ing, 89 N. Y. 225; Sawyer v. Cubby, 146 id. 192 ; see post, p. 473. By section forty-nine it is provided that "an expectant estate is descendible, devisable and alienable in the same manner as an estate in possession," p. 251. Hence, all estates are in their nature alienable. Nothing is needed, then, to enable such alienation, save that there should be ascer- tained owners of the property, or of all the estates existing therein, then the absolute title may be conveyed. Hence, the rule follows, " a con- tingency attached to a legacy or an estate in land which will render it void as an unlawful suspension of the power of alienation, must be one that relates to the person who shall take, and who may not come into being or gain capacity to take and hold within the prescribed two lives, whereby it may happen that there is no one who can alienate within that time." Sawyer v. Cubby, 146 N". Y. 192, rev'g 73 Hun, 298 ; Murphy v. Whitney, 140 N. Y. 541 ; Williams v. Montgomery, 148 id. 519 ; Al- len V. Allen, 149 id. 280, afif'g 63 Hun, 635 ; Robert v. Corning, 89 N. Y. 225. For other cases see supra, p. 368. Under this rule it is unimportant how many, or what estates are ex- isting in the property, whether they are vested or contingent; whether there are many or few owners of estates and interests. If by uniting they can convey an absolute estate in possession, there is no suspension whatever. Norris v. Beyea, 13 K Y. 273, 289; Garvey v. McDevitt, 72 id. 563; Williams v. Montgomery, 148 id. 519, 526. Hence, the inquiry always relates to this — is the owner of a contin- gent estate or interest ascertained, or, if not ascertaioed, must he be as- certained if at all within the time prescribed by the statute. If he is certain, there is no suspension at all; if he must be ascertained with- in the time prescribed by the statutes, there is no undue suspension. Such is the meaning of the rule against the suspension of the power of alienation, by the creation of future estates as provided in section thirty- two. 'See quotation from opinion in tliis case, post, p. 394. II. FUTURE ESTATES. 389 23. SUSPENSION OF POWER OF ALIENATION OR OP ABSOLUTE OWNERSHIP. Remote vesting of remainders. The New York statutes also limit the remote vesting of such future estates as are strictly remainders.' This is a further restriction applicable to particular cases, whereby estates and interests must cease to be contingent, and vest in interest during two lives in being. Otherwise these estates or interests may be too remote, although the rule against suspension of the power o£ aliena- tion be not violated. These sections o£ the statute relate entirely to the remote vesting of remainders as contradistinguished from other tuture estates. Section twenty-eight of the Real Property Law defines such a remainder, and the difference between a remainder and other future estates has been pointed out. Ante, pp. 232-239. (1.) Under section thirty-six of the Real Property Law, "A contingent remainder shall not be created on a term of years, unless the nature of the contingency on which it is limited be such that the remainder must vest in interest, during the continuance of not more than two lives in being at the creation of such remainder, or on the termination thereof." Henderson v. Henderson, 46 Hun, 509, 513 ; Butler v. Butler, 3 Barb. Ch. 804; Hawley v. James, 5 Paige, 463. See discussion of this section at p. 239. (2.) By section thirty-seven of the Real Property Law, it is provided that " no estate for life shall be limited as a remainder on a term of years, except to a person in being at the creation of such estate." See dis- cussion of this section at p. 240. The last two sections cover the case oE remainders limited on a term of years. (3). Under section forty, " a fee or other less estate (new in Real Property Law) may be limited on a fee, on a contingency which, if it should occur, must happen within the period prescribed in this article." See p. 241. This covers the case of a fee or lesser estate limited on a fee ; but unlike the other sections does not relate to strict remainder, but rather to executory devises. (4.) Under section thirty-two, 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 on any other contingency by which the estate of such persons may be determined before they attain full age. See p. 367. This covers the case of a contingent remainder in fee limited on a prior remainder in fee. ' See the clear exposition of this subject in Chaplin's Suspension, § 314, et seq. 390 ESTATES IN EXPECTANCY. 33. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. It will be seea that these sections require not a mere ascertainment bf the owner of the future estate, but that the estate mnst actually vest in interest, if at all, within the statutory period. (5.) The above sections cover the usual manner of creating a remainder, save by limiting it upon lives. Suppose, then, a contingent remainder to D., a person in being at the creation of the estate, be limited upon three successive life estates, or a life estate for the lives of three persons. What statute forbids it? Section thirty-three declares that a remainder under that section shall vest at the expiration of the first twu lives, and section thirty-five declares that the remainder shall vest at the expiration of the lives of the first two persons designated ; but it has been held that section thirty-three relates only to vested remainders. Amory v. Lord, 9 N. Y. 403 ; Purdy v. Hayt, 92 id. 446-4:57; Dana v. Murray, 122 id. 604, 618. The argument is this: The contingency appointed to vest the re- mainder may not happen until after the expiration of the two life estates, maybe not until the third life estate shall have run. But section thirty- three cuts oS the third life estate and preserves only such remainders as can take effect at the expiration of the second life estate. The contin- gent remainder above described might not be able to take effect at the end of the second life, and the statute can not accelerate the happening of the contingency upon which it is to vest. See oases, p. 377. Chaplin's Suspension, § 323. Hence, as the remainder can not comply with the demands of the statute it can not be preserved; the remainder must fall. It results, as has been stated, that sections thirty-three and thirty-five apply only to vested estates.' This result, however, does not seem to harmonize with "Woodruff v. Cook, 61 K Y. 638 ; 47 Barb. 304. Personal property. The statute relating to personal property differs from that relating to real property as follows : ' (1.) There is no provision for an additional minority, as is provided in section thirty-two (former section 16). See p. 368. (2.) It has been considered that the statute relating to personal property is violated unless all executory limitations thereof, whether they be in the nature of remainders, or other future estates, must vest within two lives ' See cases p. 367. ' See p. 338. ' See statute set out p. 383. II. FUTURE ESTATES. 391 33. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. ia being ; and that the mere fact that there are persons in being who can transfer the absolute title thereof is not sufficient. Chaplin's Suspension, p. 217, et seq. By this rule, if a future contingent interest is given in per- sonal property, not only must there be persons within two lives in being who can transfer the absolute title, but also the interest must vest dur- ing such time. The language of the section countenances such a con- struction. Nevertheless, the same general test applicable to real prop- erty is usually applied to personal property, viz., are there persons in being who can transfer the absolute title thereof. Sawyer v. Cubby, 146 N. Y. 192 ; Eobert v. Corning, 89 id. 225, and the usual rules as to the vesting of remainders would be applicable. It may be that an examination of the decided cases would illustrate that this general rule has heretofore proved sufficient. Postponement of "payment and possession may not suspend ownership. The inquiry whether a person has such an ownership of personal property that he can transfer the title thereof, often turns upon the question whether the postponement of payment is a deferment of the vesting of the title in him. If the postponement relate only to the time of payment and not to the time when the ownership vests, there is no suspension. The usual and somewhat insufficient rule is, that if futurity relates to the substance of the gift, or the legatee who shall take it, the absolute ownership is suspended ; if futurity refer only to the time of payment or delivery of possession, either for the conven- ience of the estate or the proper management and conservation of the interest, there is no such suspension. See Vested Estates, p. 260; Con- tingent Estates, p. 330. Whether the gift takes effect at one time or another is primarily a question of intention, but certain rules thought to be helpful in dis- covering such intention are observed ; and, moreover, the law favors the vesting of interest. These rules have been given elsewhere, pp. 259, 260. The following generalizations may be repeated at this place : If the will by appropriate words give the property to a person so that if that were all he would take it, and there be further words direct- ing that it be paid or delivered to him at some future time, or, if it be real estate, that it be converted and so paid to him, he takes a vested interest. See cases digested pp. 260, 261. If, however, there be no words indicating a present gift, but a pro- vision that after a life estate the property should be converted, or a fund be created in the future, distributed, or paid to a person, or to a S92 X. ESTATES IJSr EXPECTANCY. 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. class of persons, it is a general rule that the title does not vest until that time. See cases digested, p. 330. In what manner the suspension of the power of alienation may he unduly effected. The power of alienation or absolute ownership may be illegally sus- pended, (1) By the creation of contingent expectant estates, so that there may be no persons in being during the continuance of the lives of two designated persons in being at the creation of the estate, who can con- vey a perfect title. Smith v. Edwards, 88 N. Y. 102 ; Everitt v. Everitt, 29 id. 71 ; Eobert v. Coming, 89 id. 225, 235. (2) By vesting the title in trustees pursuant to section seventy-six, p. 616 (former section 55), of the article upon trusts, so that property becomes inalienable under section eighty-five, p. 683 (former section 65), and section eighty-three, p. 818 (former section 63), for a period of more than two lives in being at the creation of the trust. Cases supra, also Murphy v. Whitney, 140 N. Y. 541 ; Haynes v. Sherman, 117 id. 433 ; Robert v. Corning, 89 id. 225 ; Schettler v. Smith, 41 id. 328 ; Downing v. Marshall, 23 id. 366 ; see pp. 368-9. (3) A power in trust may be instrumental in effecting a suspension in connection with estates contingent or in trust. Radley v. Kuhn, 97 N. Y. 34. Garvey v. McDevitt, 72 N. Y. 556; Mott v. Ackerman, 92 id. 539; Van Brunt v. Van Brunt, 111 id. 178 ; Dana v. Murray, 122 id. 604 ; Booth V. Baptist Church, 126 id. 215 ; Downing v. Marshall, 23 'id. 366 ; Schettler v. Smith, 41 id. 328 ; Chaplin's Suspension, etc., 74 ; see cases pp. 373-5. Suspension hy means of a trust. As has been stated (p. 383), express trusts are created by authority of section seventy -six (former section 55). By section eighty (former section 60), the title is vested in the trustee. By section eighty -three (former section 63), the right of a beneficiary in an express trust to re- ceive and apply the rents and profits of real property can not be trans- ferred, except as therein stated ; and by section eighty-five (former section 65), alienation in contravention of the trust is prohibited. By these sections the trust property is inalienable ; but under subdi- vision three of section seventy-six, the trust may be created to receive and apply the rents and profits to the use of any person " during the life of that person, or for any shorter term, subject to the provisions of II. FUTURE ESTATES. 39S 33. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. law relating thereto." This phrase, ^^ subject to the provisions of law relat- ing thereto" by reference, brings the trust within the terms of sectioa thirty-two so that that section is regarded as measuring the possible dura- tion of the entire trust, while the specific provision contained in the words "during the life of that person," measures the continuance of the trust as related to the interest of the beneficiaries. The following quotation from the opinion in Crooke v. County of Kings, 97 N. Y. 421, 439, 440, describes the nature and operation of these two periods : " A trust dependent upon lives, as beneficial objects, need not neces- sarily be dependent upon the same lives for its duration. The two things are inherently different, and yet, when both enter into the con- stitution of the trust, they affect and modify each other, and together dictate the extreme limit of the trust The natural term, which is the lives 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 requirements 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 ele- ments of the trust, in its creation, effect a lawful duration, 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 th-e language of the will creating the trust impera- tively 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." But it may be that a trust is of such a nature or is so framed that the statute does not prohibit the alienation of the trust property, as where the trust is created under subdivisions one or two of section seventy-six, or where alienation is authorized by the creator of the trust. In such cases the question whether an express trust suspends the power of alien- ation is to be determined by the terms of the instrument creating the trust. If the trustees alone, or in conjunction with others, can convey an absolute estate in possession, there is no suspension of the power of alienatioa (Chaplin's Susp.,. 91-92.) This supposes that the pro- ceeds of the sale are not made inalienable under the trust. If the pro- ceeds of sale are made inalienable for an unlawful period, the statute is violated. In such case the form of the property merely is changed, and thereupon inalienability attaches. The following extract from the 50 394 X ESTATES IN EXPECTANCY. B3. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. opinion in Robert v. Corning, 89 K Y. 225, 235-6, has been found use- ful and can not fail to be instructive in this connection : " By section 15, of the article of the Revised Statutes relating to the creation and division of estates in land (1 R. S. 723), the absolute power of alienation can not be suspended by any limitation or condition vrhat- ever, for a longer period, than during the continuance of two lives in being, at the creation of the estate, except in a single case, * * * (that provided by former section 16). What shall constitute such sus- pension is declared in section 14. Such power of alienation (the section declares), is suspended, when there are no persons in being, by whom an absolute fee in possession can be conveyed. The rule declared in this section, constitutes, under our statute, the sole test of an unlawful perpe- tuity. Construing sections 14 and 15 together, it is manifest, that where there are persons in being at the creation of an estate, capable of con- veying an immediate and absolute fee in possession, there is no suspen- sion of the power of alienation, and no question under the statute of perpetuity arises. But the statute does not prohibit all limitations of estates, suspending the power of alienation. It permits them, within the restriction of two designated lives in being at their creation, and a minority. If the suspension of alienation is affected by the creation of future contingent estates, the validity of the limitation depends upon the question, whether the contingency upon which the estates depend, must happen within the prescribed period. If the suspension is effected by the creation of an express trust to receive the rents and profits of land, under section 55 of the statute of uses and trusts (1 R. S. 728), the lawfulness of the suspension depends upon the question, whether the trust term is, in respect of duration, lawfully constituted. But the mere creation of a trust, does not, ipso fado, suspend the power of alienation. It is only suspended by such a trust, where a trust term is created, either expressly or by implication, during the existence of which, a sale by the trustee, would be in contravention of the trust. Where the trusted is em- powered to sell the land without restriction as to time, the power of alienation is not suspended, although the alienation in fact may be post- poned by the non-action of the trustee, or in consequence of a discretion imposed in him, by the creator of the trust. The statute of perpetuities is pointed only to the suspension of the power of alienation, and not at all to the time of its actual exercise, and when a trust for sale and dis- tribution is made, without restriction as to time, and the trustees are em- powered to receive the rents and profits, pending the sale for the benefit of beneficiaries, the fact that the interest of the beneficiaries is inalienable by statute, during the existence of the trust, does not suspend the power II. FUTURE ESTATES. 395 23. SUSPENSION OP POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. of alienation, for the reason, that the trustees are persons in being, who can, at any time, convey an absolute fee in possession. The only ques- tion which, in such a case, can arise under the statute of perpetuities, is, whether the trusts in respect to the converted fund, are legal or operate to suspend the absolute ownership of the fund, beyond the period allowed by law. If the limitation of the interests in the proceeds is illegal, the consequence might follow, that the power of sale given to ac- complish the illegal purposes, would be void. (Van Vechten v. Van Veghten, 8 Paige, 124.)" Effects of a theoretical division of trust estate. Although the property by a general devise be given to trustees to be held for a period exceeding the continuance of two lives, the trust may not be invalid, provided that, by an allowable construction, the testator may be deemed to have intended that the trust property should be separated, as regards the rights and interests of the several beneficiaries. If so, each intended separable share is regarded, in theory, although not in fact, as separate and held under a trust distinct from the shares of the other beneficiaries. See, for further consideration of this subject, p. 404 and cases collected, p. 379-380. Effect of release hy beneficiary and remainderman under section 83. The above brief statement concerning express trusts does not take ac- count of a radical and seemingly startling change in section eighty-three (former section 63). This section formerly prohibited the alienation by a beneficiary of an interest held in trust under subdivision three of section seventy-six. But to this has been added the following:* " Whenever a beneficiary in a trust for the receipt of the rents and profits of real property, is entitled to a remainder in the whole or a part of the prin- cipal fund .so held in trust, subject to his beneficial estate, for a life or lives, or a shorter term, he may release his interest in such rents and profits, and thereupon the estate of the trustee shall cease in that part of such principal fund to which such beneficiary has become entitled in remainder, and such trust estate merges in such remainder." See Eeal Property Law, sec. 83. Hence if property be given to A. in trust to receive and apply the rents to B., with remainder to B., B. could destroy the trust by releas- ing his beneficial interest. This provision would seem to make such estates absolutely alienable and an exception to other express trusts *This change was introduced by L. 1893, ch. 453, and subsequently incorporated in Real Prop. L., sec. 83. 396 X ESTATES IN ESPECTANCY. 23. SUSPENSION OF POWER OF ALIENATION OR OP ABSOLUTE OWNERSHIP. created under subdivision three of section seventy-six, and greatly di- minish the usefulness of that section. Accumulations. As to suspension of the power of alienation by trusts, to accumulate the rents and profits under subdivision four of section seventy-six of the Real Prop. Law, see Accumulation, p. 499 ; Trusts, p. 616. Suspension on the power of alienation by means of a power. "A power is an authority to do an act in relation to real property, or the creation or revocation of an estate therein, or a charge thereon, which the owner, granting or reserving the power, might himself law- fully perform." Real Prop. L., sec. Ill (1 R. S. 732, sec. 74, repealed thereby). Such a power may be given to a person to dispose of or encumber a fee or lesser estate by grant, will or a charge on the property either to designated persons or to any alienee whomsoever. If the estate to be transferred is less than a fee, or the transfer authorized to be made be to designated persons or class of persons, it is a special power; other- wise it is a general power. Such powers are beneficial when, by their terms, the grantee of the power alone has an interest in their execution. They are powers in trust, . (1) When the grantor of the power designates any person or class of persons, other than the grantee of the power, as entitled to any benefit resulting from their execution. (2) Also a special power is in trust when it authorizes a disposition or charge to be made to a person or class, other than the grantee of the power. Real Property Law, sees. 114-118. Under common law rules, if a power could be exercised at a time beyond the limits of the rule against perpetuities, it was bad. Gray's Rule against Perpetuities, 806. Under the New York statutes the question of the validitv of the power does not depend upon the absence of a limit to its exercise. The effect of the power upon estates subject to it, or created by it or directed to be created by it, is the subject of inquiry. A beneficial power can not suspend the absolute power of alienation. The exercise of the power is for the benefit of the grantee of the power, and there is no means of preventing alienation. See Chaplin's Suspension, 164, et. seq. A power in trust, however, may so operate on estates as to create an unlawful suspension. But even this could not happen, if there were persons in being, who could convey an absolute fee within II. FUTURE ESTATES. 397 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. the period provided by the statute, and thereby extinguish the power. Such was the case in Hetzel v. Barber, 69 N. Y. 1, where the owners of the fee, by conveying, extinguished a power to sell land and invest the proceeds for their benefit, and the same result would obtain if the persons entitled to the benefits of sale, being of lawful age and en- titled to do so should elect to take the land. Hetzel v. Barber, 69 K Y. 1, 11. A power of sale unrestricted in time does not suspend the power of alienation, nor, if it is to be executed after a certain time, if the donee of the power have discretion to sell within such time, for in such case the power is not imperative. Eobert v. Corning, 89 N. Y. 225; Weeks V. Cornwell, lOi id. 325 ; Henderson v. Henderson, 113 id. 1. See cases collected post, pp. 373-5. Nor is a suspension effected, while the title of the personal property is vested in the beneficiary, but the pos- session is meanwhile directed to be held by the grantee of the power to manage the property, to receive the profits, and to pay the net income to such beneficiary. Tucker v. Tucker, 5 N. Y. 408 ; Everitt v. Everitt, 29 id. 39 ; Gilman v. Eeddington, 24 id. 9 ; Post v. Hover, 33 id. 593 ; Yanderpoel v. Loew, 112 id. 167. See cases collected, pp. 369, 374. A power may be so related to an estate as to suspend the power of alienation thereof or prevent the vesting of remainders within the time required by the statute ; hence, where a power was given to trustees to sell after four years and pay the proceeds to R., in trust, the estate in trust was void and the land descended to the heirs, subject to the power of sale. E.'s trust estate was inalienable during the four years as no one could convey the fee. This would have been otherwise had R. individually, and not as trustee, taken the estate, for in that case he could have alienated the property. Garvey v. McDevitt, 72 N. Y. 566. See Dana y. Murray, 122 id. 604 ; Delaney v. McOormack, 88 id. 174. See cases collected pp. 373-5. Execution of a power. Although a power be sufficiently broad to permit the execution of estates that would violate the statute, this does not invalidate the power, nor lawful estates appointed under it Hillen v. Iselin, 144 N. Y. 365; Baker v. Lorillard, 4 id. 257; Radley v. Kuhn, 97 id. 26; Hone's Ex'rs v. Van Schaick, 20 Wend. 569. See cases collected, p. 374. So far as a power directs an unlawful act it is void. Robert v. Corning, 89 N. Y. 225, 236. With reference to estates executed under a power it is sufficient to inquire whether such estates would have been valid if created by the 398 X. ESTATES IN' EXPECTANCY. 33. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. grantor of the power, for the grantee of the power is simply standing in the place of, and acting for, the grantor thereof, and the period during which the absolute right of alienation may be suspended by an instrii- ment in execution of a power must be computed, not from the date of such instrument, but from the time of the creation of the power. Eeal Prop. L., sec. 158, former section 128. Therefore, the inquiry may be involved, what estates has the grantor of the power already created ? Do estates created by the grantee of the power, considered in connec- tion with those already created, entirely suspend the power of aliena- tion ? This is determined by the same test that would apply if all the estates had been created by the grantor of the power. What the grantor of the power could do he and the grantee of the power, acting sepa- rately, could do, and nothing more. See p. 404. The question of undue sicspension is determined by the terms of the instru- ment. It is a general rule that the terms of the instrument and the condi- tions existing at the testator's death, and not actual facts or happenings thereafter, determine the question of undue suspension. Hence, if, at the creation of the estate, it appears that the terms of the instrument are such that there may be an undue suspension, it is immaterial that events so happen that an undue suspension does not in fact take place. See cases collected at p. 368. An apparent exception to this rule exists in Purdy v. Hayt, 92 N. Y. 446. There was a limitation for three lives as to the share of one of two sisters of the testator, but upon which sister's share that limitation would operate could not be known until one of two sisters should die, which event would render it certain that an unlawful limi- tation in remainder was of the share of the sister so first dying. The question arose whether it wholly defeated the remainder, that it could not be ascertained, until one life estate was spent, which of the shares would be unlawfully suspended, and it was held that the general rule above given related to cases where, if the limitations took effect, in their order, as contemplated by the grantor or devisor, some of tlie estates would not vest within the prescribed period, and they were therefore cut off as too remote, although it might happen that the estates so cut off, would, by events subsequently happening, take effect within two lives. And it was held that the case under considei'ation did not fall wiihin that rule. But if the same question may not be determined within two lives there is an undue suspension as to both shares. See Dana v. Murray, 122 N. Y. 604. II. FUTURE ESTATES. 399 23. SUSPENSION OP POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. Lives in being at the creation of the estate. Section thirty-two provides that, the suspension may not be 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 case of a contingent remainder in fee created on a prior remainder in fee, to take eflfect in the event that the person to whom the first remainder is limited die under the age of twenty -one years, or on any other contingency hy which the estate of such person may be determined before he attain full age.* Suspension for lives of persons not in being. A suspension during the lives of persons not in being at the creation of the estate violates the precise language of section thirty-tvi'o. Oases collected p. 373. How lives may be designated. The persons during whose lives the suspension continued need not be designated by name or individually pointed out, if they can be p'lsi- tively ascertained ; nor need the second life be ascertained before the ending of the first. See cases collected p. 370. See 104 N. Y. 45. What lives may be selected, p. 370. See 104 N. Y. 45. Any two lives may be selected. It is not necessary that they should have any connection with any of the estates created, but they may be strangers. It is also immaterial how many life estates may be created if they are to expire within the two lives selected. See Bailey v. Bailey, 97 K Y. 460 ; Crooke v. County of Kings, id. 421, and cases collected at p. 370. Suspension dependent upon children becoming of age. A suspension until "youngest child now living (there being more than two) arrive at the age of twenty-one years, or would arrive at that age if living" is void, as the term of years is not bounded by a life, but is expressly directed to continue although the life end. Haynes v. Sher- man, 117 K Y. 433. See cases pp. 375-6. So, also, a suspension until the youngest of the testator's children (if there be more than two), living at the date of his will and attaining the age of twenty-one years, should attain that age. Hawley v. James, 16 "Wend, 61. See cases collected pp. 375-6. *It has been noticed that the exception has no reference to personal property. Manice v. Manice, 43 N. Y. 303 ; Beardsley v. Hotchkiss, 96 id. 301 ; Greenland v. Waddell, 116 id. 334. 400 X ESTATES IN EXPECTANCY. 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. So, where the suspeusioa was until "the eldest surviving child (if more than two) should arrive of age," the provision is void unless the words may properly be considered to mean the eldest child surviv- ing at the creation of the estate. Jennings v. Jennings, 7 N". Y. 547. See references to cases of this general description at pp. 375-6. If, however, the will, by the use of the words "youngest" or "old- est surviving child," designates, or can be fairly intended to describe a particular child, living at or before the creation of the estate, it would be as valid as if he were designated by name. Butler v. Butler, Hoff. Ch. 347-8 ; Chaplin's Suspension, 61-3 ; Wells v. Lynch, 8 Bosw. 465 ; Eoe V. Vingut, 117 K Y. 204. See cases, pp. 375-6. Suspension for the life of A. and his widow. A devise to A. for life and to his widow for life, remainder to B., is not good unless the testator's intention to designate some living person, as the widow of A., can be gathered ; because A. may marry a woman not in being at the creation of the estate. Schettler v. Smith, 41 N. Y. 828; Tiers v. Tiers, 98 id. 568; Van Brunt v. Van Brunt, 111 id. 178; Gray's Perp. 151 ; Chaplin's Susp., sec. 102 ; see cases, p. 373. Devise to sitch of a woman's children as shall reach the age of twenty-five. It is said that this is bad, although the woman be of such an age that it is certain that she can have no more children, and therefore the event must occur, if at all, in the lives of her children in being at the testa- tor's death. Q-ray's Perpetuities, 151. Minorities, p. 371. It already appears that in New York the vesting of an estate may be lawfully suspended for two lives, or for two lives in being and the mi- nority of a person under age at the termination of the last life, where a contingent remainder in fee is limited on a prior remainder in fee, as provided by former section sixteen, now a part of section thirty-twa A minority is not an absolute term, but counts as one life or a part thereof, and this rule previously established has been embodied in section thirty-two as follows : "For the purposes of this section, a minority is deemed a part of a life and not an absolute term equal to the possible duration of such minority." If an estate be given to A. for life, to B., an infant, until he shall become twenty-one years of .age, to B. thereafter for his life, then to C.'s heirs in fee, the suspension until B. shall become twenty-one years of age is not a term in gross, but the minority counts for a life; or, if as illustrated above, the vesting be suspended after B. becomes twenty-one years of age for the rest of his life, the minority IL FUTURE ESTATES. 401 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. counts for part of a life, which, added to his life after majority, amounts to one life. Benedict v. Webb, 98 N. Y. 460. Hence, as a minority counts for a life or a part thereof, unless the case fall within former section sixteen, a suspension for two lives and a mi- nority is bad ; Savage v. Burnham, 17 K Y. 561 ; and so if the suspen- sion be during the minority of a person not in being ; Woodgate v. Fleet, 64 N. Y. 566; and so if the suspension be for the minorities of more than two persons in being at the creation of the estate. Jennings; V. Jennings, 7 N. Y. 547. See p. 371. For this reason, as has been stated, p. 399, the limitation is bad, whea the suspension is until all the testator's children (more than two) arrive of age, or until the majority of the youngest child that should become of age (Hawley v. James, 16 Wend. 61); but the suspension may be until the majority of the youngest child, if such child be pointed out. Roe V. Vmgut, 117 N. Y. 204. Term in gross, pp. 371-2. The rule in England and in many of the states is, that the power of alienation may be suspended beyond lives in being for the term of twenty-one years taken in gross, even without reference to any infancy. Gray on Perpetuities, 168. Such a rule does not exist in New York. See p. 387. Except in the case provided in former section sixteen (now embodied in section 32), where an additional minority is allowed, the suspension can be no longer than for two lives in being. It can not be for an arbitrary or definite time, however short, or for any time not measured by lives in being, or minorities equivalent thereto. Beekman V. Bonsor, 23 K Y. 298 ; Smith v. Edwards, 88 id. 92 ; Eice v. Bar- rett, 102 id. 161 ; Dodge v. Pond, 23 id. 69 ; Oruikshank v. Home, etc., 113 id. 337. See cases collected p. 371. Suspension until some act shall he done, p. 372. A gift to take effect when some act shall have been done after testa- tor's death, is void, unless it be provided that the act shall be done within the permitted two lives in being. Hence, gifts to a corporation to be incorporated by the legislature after the testator's death, are too remote, unless it be also provided that such incorporation shall take place within two designated lives in being at the creation of the estate. Levy V. Levy, 33 K Y. 97 ; Burrill v. Boardman, 43 id. 254 ; Holmes V. Mead, 52 id. 332; Oruikshank v. Home, etc., 113 id. 337; Booth v. Baptist Church, 126 id. 215 ; People v. Simonson, id. 299 ; Tilden v. Green, 130 id. 29. See cases collected at p. 372. 51 402 X. ESTATES IN EXPECTANCT. 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. So, a gift of a sum to a church for an object, if another sum be con- tributed or raised for the same object. If it were provided that the ad- ditional sum must be raised within two designated lives, the gift would be good, but if the suspension is measured by time definite or indefinite, the provision is bad. Dodge v. Pond, 23 N. Y. 69 ; Booth v. Baptist Church, 126 id. 215. See cases at p. 372. It was held in these cases that the gift did not vest; hence, a contingent estate was given to vest upon a contingency that might never happen, or, if it did happen, might not happen within two designated lives in being at its creation. So, a suspension until a certain mortgage on trust property should be extinguished from the rents. Killam v. Allen, 52 N. Y. 605. See p. 372. So a suspension until a partition shall have been made. Henderson V. Henderson, 113 N. Y. 1. See p. 372. Terms necessarily bounded by a life. Although there be provisions that in themselves would create a sus- pension for more than two lives, or for an arbitrary time, yet, if the period is absolutely bounded by not more than two designated lives in being, and must end within such period, there is no undue suspen- sion. Oxiey V. Lane, 35 N. Y. 340 ; Crooke v. County of Kings, 97 id. 421 ; Bird v. Pickford, 141 id. 18 ; Schermerhorn v. Ootting, 131 id. 48 ; Montignani v. Blade, 145 id. Ill ; Gilmore v. Ham, 142 id. 1 ; Smith V. Edwards, 88 id. 92; Provoost v. Provoost, 70 id. 141; Bailey v. Bailey, 97 id. 460. See cases collected at p. 372. Suspension until a pet son shall become of a certain age, p. 875, A gift to vest in A. when he shall become thirty years of age, or sooner die, is valid, and so a bequest to a grandchild born within twenty years after testator's death, as the child of a daughter, must neces- sarily take during the life of its mother, and the child of a son, even if born after its father's death, is still regarded as living at the death of its father for the purpose of the vesting of the legacy. Smith v. Edwards, 83 N. Y. 92; and so a trust to continue until K.'s son C. is of the age of twenty-five, or sooner die, is valid; Eadley v. Kuhn, 97 N. Y. 26; Eoe V. Vingut, 117 id. 204; as is also a gift in trust to A. for seven years for the benefit of A. and B.; then gift to be transferred to B.; if B. die before seven years to A.; and if A. and B. die, then to testator's heirs. The estates must all vest within the lives of A. and B. Montig- nani V. Blade, 145 N. Y. 111. Although the suspension in these cases is measured by years, tlie time can not ran beyond a life or two lives in being. Sawyer v. Cubby, 146 N. Y. 192. II. FUTURE ESTATES. 403 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. Child en ventre sa mere. The suspension of the power of alienation during the minority or life of a child conceived, but unborn at the creation of the estate, is al- lowed. Such child is in being from the time of conception, and estates limited to him or upon his life are valid. See Hone v. Van Schaick, 3 Barb. Ch. 488. Thus a bequest to testator's children includes his children born after his death. See sec. 46. Such a child may take a life estate and a fu- ture estate, vested or contingent, limited thereon is good. Thus, by will A. devises to his children for life, remainder to his grandchildren in fee ; if any grandchild die under age, his share to go to B. A, leaves a posthumous child, who takes for life and dies leaving a pos- thumous child, taking a remainder ; if this child die under age B. takes by his executory devise. See Gray on Perpetuities, 157. Indefinite failure of issue, p. 378. Devise to A., but if he should die without issue or without heirs, or on failure of issue, or without leaving issue, over to B. The question in such cases arises whether this means a failure of issue, heirs, etc., at A. 's death, or a general and definite failure in any generation of A's de- scendants, however remote. If an indefinite failure was meant in such last sense, then the gift over to B. might begin in enjoyment at a period forbidden by the rule against perpetuities and is void ; if a definite fail- ure at A.'s death was intended, then the devise to B. would be good, and would take effect or not, accordingly as A. had or had not issue at his death. At common law, in the example given above, it would be presumed that an indefinite failure was meant unless a different intention ap- peared in the instrument creating the estate. But when the limitation over was upon the first taker dying without issue living, without leaving issue behind him, it was held that a definite failure was intended. There were other similar constructions. Kent's Com. vol. 4, *274-279. But the departure from the rule usually rested upon some particular features of the case in question. There was con- siderable disposition to hold that as to personal property the testator in- tended a failure of issue at the death of the first taker, but this distinc- tion between real and personal property does not seem to have been es- tablished, although it is said that the courts were disposed to lay hold of slight circumstances to support limitations of personal property. Kent's Com. vol. 4, *282. But the Eevised Statutes have definitely settled the difficulty. Eeal Prop. Law, section thirty-eight (former sec- 40-i X. ESTATES IN EXPECTANCY. 23. SUSPENSION OF POWER OP ALIENATION OR OF ABSOLUTE OWNERSHIP. tion 22). provides that *" 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." From what date the suspension is to he computed. Whether there is an undue suspension of the power of alienation it is to be determined with reference to the state of things at the time of the creation of the estate in question, viz., if the estate be created by will at the time of the testator's death, if by grant at the time of the delivery of the grant. See Real Prop. L., sec. 54. See Chaplin's Susp. 53 ; Grray's Perpetuities, 163. Lange v. Ropke, 5 Sandf. S. C, 363, 369,370; Lang v. Wilbraham, 2Daer, 17J, 175; Griffen v. Ford, 1 Bosw. 123, 137. In Odell v. Youngs, 64 How. Pr. 56, it is consid- ered that Schettler v. Smith, 4L K Y. 328, Van Nostrand v. Moore, 52 id. 12, and Colton v. Fox, 67 id. 348, overrule Lange v. Ropke and Griffen v. Ford. These cases, however, are thought to have no such bearing or effect. Gray's Perp. 163 ; Chap. Susp. 53. In determining whether estates created by the execution of a power are too remote, the period of suspension is computed from the time of the creation of the power. Crooke v. County of Kings, 97 N. Y. 421 ; Genet v. Hunt, 113 id. 158 ; Dana v. Murray, 122 id. 60i. The Real Prop. Law, sec. one hundred and fifty-eight (former section 128), also provides, the period during which the absolute right of alienation may be suspended, by an instrument in execution of a power, must be computed, not from the date of such instrument, but from the time of the creation of the power. Whether estates or interests are given in shares or in solido, p. 379. The former rule that there was a presumption in favor of joint tenancy was changed by section forty-four of the Revised Statutes (Real Prop. L. sec. 56), and present or future estates, both in real and personal property, to two or more persons, are deemed held by them as tenants in common in the absence of a contrary intent. Chaplin's Suspension, 122 (see dis- cussion 113, et seq.) ; Bveritt v. Bveritt, 29 N. Y. 39 ; Bliven v. Seymour, 88 id. 469 (478) ; Lane v. Brown, 20 Hun, 382 ; Matter of Lapham, 37 id. 18; Blanchard v. Blanchard, 4 Hun, 287 ;' Smith v. Edwards, 88 N. Y. 103. See cases collected at p. 379. See also pp. 380, 381, 1663. * See statute and discussion of same, 379. 'AE'd 70 lil. Y. 615. II. FUTUEE ESTATES. 405 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. Hence, it has beea contended that a gift made to several persons, will be presumed to be to them as tenants in common, unless this presumption be overridden by the intention of the testator otherwise disclosed.* Of course, the intention of the testator may of itself dis- close a purpose that the beneficiaries shall so take. This adds force to the presumption arising from the statute. The value of knowing whether several persons take interests as tenants in common is, that such a taking is deemed theoretically to divide the interests into sepa- rate shares, and hence the suspension will be measured by the direction concerning each share. For tenants in common each take a several in- terest in the undivided property. Hence, if property be given in trust to collect the rents and profits and apply to A., B., 0. and D. until they should be twenty-one years of age, with remainder to such persons, it would be urged that the remainder might be deemed to be to such per- sons in severalty, because they take the remainder as tenants in common and the trust would correspond to the holdings of the remainder and become divisible into separate trusts for each person. Hillyer v.Vande- water, 121 N. Y. 681; 24 K E. 999. See Chaplin's Suspension, 124, et seq., and rules stated at pp. 131-2. Whatever the form of language, if within sanctioned rules of construc- tion, a gift be ascertained to have been given devisably to the several takers of interest therein, each devisable interest is construed as if it were the only one. The question then is, as to each one, is the power of alienation or absolute ownership unduly suspended ? Each interest found to be a separate interest stands alone in determining its validity. ^Separation of legal from illegal provisions, p. 380. But, suppose that some interests are found to be invalid and some valid. If the fund were entire and the interests therein inseparable, the whole provision would fail. Even if the interests were separable, the failure of one interest might so far wreck the testator's intention that the whole will would fail; on the other hand, the valid interests might be and would be retained and the invalid interests lopped off, if this could be done without injustice to the testator's general scheme and the just transmission of his property to the persons intended by him as beneficiaries. The rule is applicable to trusts, to alternative dispositions, to dispositions that depend on two contingencies, one of which is not too remote and the other is, Schettler v. Smith, 41 K Y. 328 (336, S45-6) ; Chaplin's Suspension 275, et seq.; dispositions, some valid and *Hillyer v. Vandewater, 131 N. Y. 681, afE'g 34 N. E. Rep. 999. 406 X ESTATES IN EXPECTANCY. 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSH§P. some invalid, but which is valid or invalid not determinable at the crea- tion of the estate. Purdy v. Hayt, 92 N. Y. 446 ; Dana v. Murray, 122 id. 604, 618 ; Chaplin's Suspension, 282. See cases collected at pp. 377, 379-380. Beginning of estate, not its continuance, is considered. If an estate may vest in enjoyment within the time limited by section thirty-two, it is, as regards such section, immaterial when it ends. Gray's Perpetuities, 164. Effect of an undue suspension of the poioer of alienation. "The rule is laid down in Lewis's Treatise on the Law of Perpetuities, 657, thus: 'The invalidity of a limitation on account of remote- ness places all prior gifts in the same situation as if it had been entirely omitted in the dispositive system. The gift of a fee simple, therefore, or of the entire interest, subject to an executory limitation which is too remote, takes eflfect as though it had been originally limited absolutely, or free from any divesting gift. A limitation of a life estate or other partial interest, with a remainder expectant on it which is void for re- moteness of course remains in statu quo prius, neither receiving enlarge- ment nor suffering diminution. And the like holds with respect to ex- ecutory limitations, not operating to divest previous partial estates, but expressed to take effect at some period subsequent to their determina- tion ; the limited interest remains as originally created, both as to char- acter and extent, without reference to the manner of devolution of the property after its expiration.' See, to the same effect, 2 Fearne on Eem. 12 to 15, 134, ed. 1844." Leonard v. Burr, 18 K Y. 96, 105-6; see Williams v. Williams, 8 id. 525 ; DeKay v. Irving, 5 Denio, 646. See cases collected pp. 380-381. The rule is concisely stated in Gray's Perpetuities : " If future inter- ests in any instrument are avoided by the rule against perpetuities, the prior interests become what they would have been had the limitation of the future estates been omitted from the instrument." Gray's Perpetui- ties, 176. " When an interestis vested it is never too remote, although preceded by other interests which are too remote." Gray's Perpetuities, 179. The same author also states that, although a later interest is not vested at its creation, yet if it must become vested within the allowable limits, it is good, and that "as all life interests to persons now in being must take effect, if at all, within lives in being, it would seem as if all such interests should be good, although preceded by interests that are II. FUTURE ESTATES. 407 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. too remote." See Gray's Perpetuities, 179, et seq., where the subject is discussed, illustrated and authorities analyzed. If, however, the testator intended that an event too remote to vest a contingent estate should in any case determine the prior estate, that re- sult will follow. Gray's Perpetuities, 179 ; Lewis's Perpetuities, 173. Disposition of property embraced in void provisions, p. 381. The will sometimes directs what disposition shall be made of any gifts found to be illegal. If such direction be valid it is observed. Cruikshank v. Home, etc., 118 N. Y. 337; Booth v. Baptist Church, 126 id. 215. Personalty, the subject of a void gift, goes into the residuary, unless otherwise intended.' Gray's Perpetuities, 177 n ; Accounting of Ben- son, 96 K Y. 509. This is so under an absolutely general residuary clause, but where a part of the residue, of which disposition is made fails, it devolves as undisposed of. See Booth v. Baptist Church, 126 N. Y. 215 ; Beekman v. Bonsor, 23 id. 312. There are many cases where it is said to devolve as undisposed of.^ And void devises go to the heir.' Gray's Perpetuities, 177 n. Van Kleeck v. Reformed Dutch Church, 6 Paige, 600; 20 Wend, 457. See this subject treated, pp. .1568, 1569. Conflict of laws, p. 381. The question whether the power of alienation of real property is un- duly suspended is adjudged by the lex rei sitce. White v; Howard, 46 K Y. 144; aff'g 52 Barb. 294; Knox v. Onativia, 47 N. Y. 389; Brewer v. Penniman, 72 id. 603, aff'g 11 Hun, 147; Hobson v. Hale, 95 K Y. 588. The existence of corporations organized under the laws of another state is recognized by the courts of the state of New York and such corporations may take personal property here under wills executed by' citizens of this state, if by the laws of their creation they have authority to acquire property by bequest. Chamberlain v. Chamberlain, 43 IST. Y. 424 ; Sherwood v. American Bible Soc, 1 Keyes, 565 ; Harris v. Harris, 4 Abb. K S. 421. 'Banks v. Phelan, 4 Barb. 80 ; Strang v. Strang, 4 Redf. 376. ^ King V. Rundle, 15 Barb. 139 ; Haxtun v. Corse, 3 Barb. Ch. 506 ; Morgan v. Masterton, 4 Sandf. 443 ; Kerr v. Dougherty, 79 N. Y. 337 ; Bean v. Bowen, 47 How. Pr. 306 : Floyd v. Carow, 88 N. Y. 570. 'Tucker v. Tucker, 5 N. Y. 408 ; Coster v. Lorrillard, 14 Wend. 365 ; Hawley v. James, 16 id. 61 ; De Barante v. Gott, 6 Barb. 493 ; Vail v. Vail, 7 id. 336. 408 X ESTATES IK EXPECTANCY. 23. SUSPENSION OP POWER OF ALIENATION OR OP ABSOLUTE OWNERSHIP. The courts of this state will not administer a foreign charity, but they will direct money devised to be paid over to the proper parties, leaving it to the courts of the state where the charity is to be established to piro- vide for its due administration. Chamberlain v. Chamberlain, 43 N". Y. 424; Despard v. Churchill, 53 id. 192 ; Cross v. U. S. Trust Co., 131 id. 330; Parsons v. Lyman, 20 id. 112. But they may not divest the title of one or transfer it to another con- trary to the law of the domicil. Dammert v. Osborn, 140 N. Y. 30. The law of the testator's domicil controls as to the formal requisites essential to the validity of the will, the capacity of the testator at the time of the construction of the instrument. Chamberlain v. Chamber- lain, 43 K Y. 424; Andrews v. Herriot, 4 Cow. 517; Holmes v. Eem- sen, 4 J. C. R. 469 ; Parsons v. Lyman, 20 N. Y. 103 ; Cross v. U. S. Trust Co., 131 id. 330. When by the lex domicilii a will has all the formal requisites to pass title to the personalty, a valid and particular bequest will depend upon the law of the domicil of the legatee, except in the case where the law of the domicil of the testator in terms forbids a bequest for any particu- lar purpose or in any particular manner, in which latter case the bequest would be void everywhere. Cross v. U. S. Trust Co., 131 K Y. 330; Manice v. Manice, 43 id. 387 ; Despard v. Churchill, 53 id. 192. The policy of this state does not interdict perpetuities or gifts in mortmain in other states. Chamberlain v. Chamberlain, 43 K. Y. 424; Cross V. U. S. Trust Co., 131 id. 330, 343 ; Hollis v. The Drew Theo- logical Seminary, 95 id. 166 ; Hope v. Brewer, 136 id. 126. The will of a resident of another state, admitted to probate in that state, creating a trust in personal property to be administered in this state, for the benefit of residents therein, the trustees to have possession of the trust fund, being a New York corporation, which trust is in con- travention of the statute against perpetuities, is to be decided as to its validity by the laws of the state of the domicil, and if valid under those la,ws an action is not maintainable here to have it declared invalid. Cross V. U. S. Trust Co., 131 N, Y. 380; Fellows v. Miner, 119 Mass. 541 ; Sohier v. Burr, 127 id. 221 ; Sewall v. Wilmer, 132 id. 131 ; Jones V. Habersham, 107 U. S. 174. If testamentary disposition of personal property made by a citizen of another country, valid at the domicil of the testator, is valid here, it may not be questioned when jurisdiction has been obtained by the courts of this state over the property disposed of or the parties claiming it, save where the disposition is contrary to public policy. Dammert v. Osborn, 140 N. Y. 30. II. FUTURE ESTATES. 409 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. Charitable uses, pp. 372-3. The law of charitable uses obtaining in England was never in force in New York. Holland v. Alcock, 108 N. Y. 312. See Charitable Uses, p. 847. Property can not be tied up beyond the statutory period for charitable purpose, except so far as this may be eSected by giving it directly to a corporation. Hence, in the creation of estates and the limitation of the same to such corporations, the usual rules apply. Wetmore v. Parker, 52 K Y. 450. A gift to a corporation to be formed is bad, unless it be provided that such formation shall be effected within two lives in being. See fp. 372. But the capacity of corporations to take, to hold, to use, to transfer property is measurably regulated by law, and so far as the law by such regulation limits or re- stricts the alienation of the property so held by a corporation, iE might perliaps be said to effect a suspension of the power of alienation. Holnies V. Mead, 52 N. Y. 332. But however this may be, there is no unlaw- ful suspension effected by giving property to a charitable corporation perpetually to hold the principal, and expend the income for some cor- porate purpose. Wetmore v. Parker, 52 N. Y. 450; Williams v. Wil- liams, 8 id. 524; Robert v. Corning, 89 id. 225; Holmes v. Mead, 52 id. 332 ; Holland v. Alcock, 108 id. 312 ; Biker v. Leo, 115 id. 93. If the restriction in the use of property is coincident with some duty, or function of the corporation respecting property which it may hold, such restriction is valid. This power of tying up by subjecting it to corporate ownership, so far as it may exist, only exists when the prop- erty is given so as to vest the title in the corporation. As regards gifts to trustees or officers of a corporation, or to any person in trust for the corporation, so far as a trust may ever exist for such purpose, the usual rule applies that the suspension can only be for the statutory period. Adams v. Perry, 43 N. Y. 487; Oottman v. Grace, 112 id. 299; Wil- liams v. Williams, 8 id. 525. A bequest for the benefit of a corporation although in terms to the trustees or officers of that institution, was held in the cases given below, in effect, a gift to the corporation. Chamberlain v. Chamberlain, 43 N. Y. 437; K Y. Institution for the Blind v. How, 10 id. 84; Bailey V. Onondaga Co. M. Ins. Co., 6 Hill, 476 ; Manice v. Manice, 43 N. Y. 314, 387. See p. 373. Estates and interests not subject to the statute. The following interests in land are not subject to the statute against perpetuities : Easements, profits aprendre. Gray's Perp. 201. Profits, rents, etc. Gray's Perp. 225. 52 410 X. ESTATES IN EXPECTANCY. 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. Covenaats as to the use of land. Gray's Perp. 202 ; Chaplin's Susp. 85. Eight of entry for condition broken. Gray's Perp. 213 ; Chaplin's Susp. 81. Possibilities of reverter. Gray's Perp. 224; Chaplin's Susp. 79, 80. Contracts not creating legal or equitable rights in property. Gray's Perp. 231 ; Chaplin's Susp. 84. Mortgages. Gray's Perp. 351 ; Chaplin's Susp. 83. Annuities. Chaplin's Susp. 83, 84, and cases cited. See Eeal Prop. L. sec. 76, posi, p. 815. An executor does not take by implication an estate in lands, when all the enjoined duties can be discharged under a power, especially where the estate would be void as unduly suspending the power of alienation. TucJcer V. Tucker, 5 N. Y. 408. The testator left a legacy of $30,000 to trustees, out of which to pay an annuity of $700 to his sister for life, with remainder to her daughter for life, and to accumulate the residue of the income until the decease of the daughter, when the fund should go to her issue, and, in default of issue, to a nephew on his attaining his full age, or to his issue, if he died before his full age, and in default of issue, remainder over to other beneficiaries. Construction : The provision was void both as suspending the absolute ownership for more than two lives, and as providing for an accumulation not to terminate with the minority of the beneficiaries. Harris v. Clark, 7 N. Y. 242. A devise, creating a trust for the maintenance of the widow and the support and education of four infants, with a provision for the accumu- lation of the surplus, and providing that the property should be kept together until the eldest surviving child should become twenty-one years of age, when his or her equal share should be apportioned and paid, may suspend the power of alienation beyond the termination of two lives in being, and is therefore void. Jennings v. Jennings, 7 K Y. 547 ; 5 Sandf. E. 174. From opinion.— " The scheme of the will was this: That the income of the testator's estate, real and personal, after the payment of his just debts, should be applied to the clothing and maintenance of his wife, and the clothing, maintenance and education of his children by her, and the surplus was to be invested by the wife as trustee for the children. The property was all to be kept together, undivided, until the eldest surviving child, by his present wife, should become twenty-one years II. FUTURE ESTATES. 411 23. SUSPENSION OF POWER OP ALIENATION OR OF ABSOLUTE OWNERSHIP. old, and then to be appraised, and his or her equal share apportioned, and paid if required. " Now the ohjection to this scheme is, that by the will the absolute power of alienation is suspended for a longer period than two lives in being, and therefore the will contravenes the fifteenth section of the article of the revised statutes entitled, ' Of the creation and division of estates,' 1 R. S. 783, sec. 15, and is therefore void. This very question was decided in Hawley v. James, 16 Wend. 61. It was held by Judge Bronson in that case, and his ruling has been followed by the courts since, that 'the power of alienation can not be suspended for a longer period tlian during the continuance of two lives in being at the creation of the estate and every limitation by which the power of alienation may be suspended for a longer period is void in its creation. The lives must be designated, either by naming the persons in particular or by limiting the estate on the two first lives that shall fall in a class of several individuals.' By this rule it will be seen that the power of alienation was suspended in the case at bar, or, which is the same thing, might be suspended during three lives. Suppose the three eldest of the four children living at the testator'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 alienation must be suspended during three lives." Williams v. Williams, 8 N. Y. 525, relates to charitable uses and will be found digested under Charitable Uses at p. 854. A testator died leaving a wife, children and grandchildren, and devi.sed his real estate to his wife and two other persons, in trust, to receive the net income thereof and apply it to the use of his wife dur- ing her life or widowhood, at her death or marriage to divide the same into as many shares as he should leave children surviving him, the net income of one share to be received by each child during his or her life, and afterwards by his or her husband or wife during life or until marriage, and then the fee of each share to vest absolutely in the children of each child, if any, and if none then in the right heirs of the testator. Construction : The entire devise was void, as it suspended the absolute power of alienation beyond the continuance of two lives in being at the time when the devise was to take effect. By such devise the widow and children of the testator and their surviving wives and husbands did not take successive legal estates, in which case the two first would be valid and the others void, but mere equities, all dependent upon the trust, which being void, the equitable interests all failed.- The absolute power of alienation was suspended, notwithstanding a qualified power was given to the trustees to lease the estate for terms not exceeding ten years, and to sell such portions thereof as might be 412 X. ESTATES IN EXPECTANCr. 33. SUSPENSION OF POWER OF ALIENATION OB OF ABSOLUTE OWNERSHIP. necessary to discharge liens and pay for improvements upon the residue. Amory v. Lord, 9 N". Y. 403, see p. 336. Prom opinion. — "The testator gives the net annual income of his estate to his wife so long as she shall continue his widow. After her death or marriage he di- rects his real and personal estate to be equally divided into as many shares as shall be equal to the whole number of his children surviving him, or who shall die before him leaving lawful issue surviving him. He gives the net annual income of one such share of his real estate to each child who shall survive him, to be received by such child during his or her natural life, and afterwards by his or her wife or husband while unmarried, and at the death of such child and the determination of the interest or title of his or her wife or husband, he gives the fee of the slmre of which such child received the profits to the children of such child absolutely. During the con- tinuance of these three estates or interests the title to the property is vested in the ex- ecutors in trust. The title does not vest in the widow, nor in the child, nor in the husband or wife of such child. It does not vest in fee upon the death or marriage of the widow or upon the death of the child, but is held by the executors in trust until the termination of the three intermediate estates. Is the absolute power of alienation suspended? The trust in this case, if valid as such, is a trust within the third subdi- vision of section 55 in the article relating to uses and trusts, viz. : '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.' " By section 60 it is provided that 'every express trust, valid as such in its creation, except as otherwise provided, shall vest the whole estate in the trustees in law and equity, subject only to the execution of the trust. The persons for whose benefit the trust is created shall take no estate or interest in the lands, but may enforce the per- formance of the trust in equity.' " Section 63 provides that 'no person beneficially interested in a trust for the receipt of the rents and profits of lands can assign or in any manner dispose of such interest;' and by section 65, 'every sale, conveyance, or other act of the trustees in contravention of the trust shall be absolutely void.' -" The testator authorized his executors to lease out all his real estate from time to time, for a term of years not exceeding ten at a time, to erect buildings thereon if it be necessary, and to pay all taxes, charges or liens on his real estate, by a sale, if it should be required, of so much only as should be necessary for the purpose. Aside, therefore, from the prohibition contained in section 65, the trustees are impliedly re- strained from selliag by the provisions of the will itself; and they are expressly dis- abled from selling by the provisions of that section. The cestuis que trust are pre- vented from selling by sections 63 and 60. There are, then, in the language of section 14, ' no persons in being by whom an absolute fee in possession can be conveyed.' The absolute power of alienation is consequently suspended for a longer period than during the continuance of two lives in being at the creation of the estate. The estate ■was therefore void in its creation, and never had a valid or legal existence. " It is insisted that because the third life estate is made void expressly by the pro- visions of section 17 of the same statute, so much of the will as gives an estate to the surviving husbands or wives of the testator's children should be stricken out as sur- plusage, leaving the remainder of the will to stand in full force and effect. That sec- tion provides that successive estates for life shall not be limited unless to persons in being at the creation thereof. Now this provision avoids the estate to the surviving iusband or wife, as their estate was in favor of persons not in being at the creation of II. FUTURE ESTATES. 413 23. SUSPENSION OF POWER OF ALIENATION OR OP ABSOLUTE OWNERSHIP. the estate. But the remainder of section 17 is more especially relied upon to sustain the will. That provides that where a remainder shall be limited on more than two successive lives for life, all the life estates subsequent to the two persons first entitled thereto shall be void, and upon the death of those persons the remainder shall take effect in the same manner as if no other life estates had been created. "This argument is a plausible one, and were it not for the rule that all parts of a stat- ute should have effect, if possible, perhaps it might prevail. The argument may be somewhat strengthened by section 19, which provides that where a remainder shall be created upon any such life estate, and more than two persons shall be named as the persons during whose life the estate shall continue, the remainder shall take effect upon the death of the two persons first named, in the same manner as if no other lives had been introduced. ' ' If, however, the reasons of the Supreme Court in the opinion delivered on the de- cision of this case are sound, what becomes of section 14 ? ' Every future estate shall be void in its creation, which shall suspend the absolute power of alienation for a longer period than is prescribed,' viz., not more than two lives ia being at the crea- tion of the estate. (§ 41.) The creation of the estate was at the death of the testator. If it suspended the power of alienation beyond two lives then in being, it was then void. It clearly did suspend the power of alienation during the probable life of the widow, then during the life of the child, and contingently during the life of the sur- viving liusband or wife. It was, therefore, a void estate by the provisions of sections 14 and 15, and (if the Supreme Court is right), a valid estate by the provisions of sec- tions 17 and 19. The estate was vested in the executors during the continuance of the three lives, two in being at its creation, and the other not then in being. The third life interest is void by the first as well as the last clause of section 17. In order to give effect to sections 14, 15, 17, and 19, and each of thera, we must adopt the fol- lowing hypothesis, viz.: Where the absolute power of alienation is suspended for a longer period than two lives in being at the creation of the estate, the whole estate is void in its creation, so that not only the third life estate and the remainder, but the prior life estates are void. But where the absolute power of alienation shall not be suspended, although more than two successive life estates are created, the first two life estates and the remainder are valid estates under the provisions of sections 17 and 19, but the third life estate is void, and the remainder must take effect immediately. In one case, the estates attempted to be created are vested estates, and the persons in whom they are vested may convey an absolute fee in possession. In the other, the estates are contingent, and do not vest until the happening of the event upon which the estate depends. The distinction I have attempted to draw removes all the difli- culties, and all of the provisions of the statute above referred to have their full effect consistently with each other." A will, made before the Eevised Statutes, devised to the testator's daughter Chloe, her heirs and assigns forever, the residue of his estate, real and personal, which should remain after the payment of his debts, funeral charges, and certain legacies ; and if she should die without law- ful issue, then the testator gave and bequeathed unto the Theological Seminary of Auburn the sum of $10,000, for the purpose of endowing a professorship in said seminary, tohe paidto the trustees of said seminary, in four equal annual payments, after the death of said Chloe. 414 X. ESTATES IN EXPECTANCY. 23. SUSPENSION OP POWER OF ALIENATION OB OF ABSOLUTE OWNERSHIP. Construction : Failure of issue living at the death of his daughter was intended, and not an indefinite failure of issue ; and, therefore, the bequest is not void because limited upon the happening of a contingency which is too re- mote. Trustees of the Theological Seminary of Auburn v. Kellogg, 16 N. Y. 83. A testator bequeathed his residuary personal estate to his executors, in trust, to invest the same, declaring that one-half, principal and inter- est, should be for the benefit of the children of a grandson, the other half for those of a granddaughter, " and to be paid over in the following manner: " One-half of the income to be applied annually for the bene- fit of the children of each grandchild respectively ; and whenever either of the children of the grandson should come of age, to pay over to that child his or her proportion of the one-half of said principal ; with the same provision for the children of the granddaughter. Construction : Each of the great grandchildren living at the death of the testator took an immediate vested interest in an equal share of the fund be- queathed to the children of his parent, subject to be diminished in quan- tity by the birth of subsequent children before the first child of the class became of age. If the uncertainty of the quantity of the interest of the children in being at the death of the testator would suspend the power of alienation (as, per Paige, J., it does not), such suspension could only endure for one life in being at the creation of the estate, that of the parent. Tucker v. Bishop, 16 N. Y. 402. A testator devised his estate, real and personal, upon these trusts : 1. To sell the real estate after the death of his widow. 2. That she should, during her life, receive and take to her own use one-third part of the clear yearly rents and profits of the real estate ; the residue of the rents and profits, until the sale of the rpal estate, to be deemed part of the personal estate and subject to the same dispositions ; which were : 3. To apply the income to the maintenance and education of six sons and four daughters, named in the will, in equal shares, until the sons should attain the age of twenty-one years and the daughters attain that age or be married, respectively. 4. To pay or transfer the principal in equal shares to the sons and daughters ; the shares of the sons to become vested at twenty-one, and then to be sold or transferred ; the shares of the daughters to be vested in the trustees, the income to be paid to them after twenty-one or marriage, during life, and upon the death of each daughter leaving issue, her share to go to and vest in such issue. II. FUTURE ESTATES. 415 83. SUSPENSION OF POWER OF ALIENATION OB OF ABSOLUTE OWNERSHIP. The power of alienation; as to that part of the estate remaining in land, being suspended for the life of the widow, no further limitation, applying to the whole fund after the conversion of the land, is good which suspends the absolute ownership for more than a single addi- tional life. The contingent bequests of distinct shares as separate legacies, vest- ing in the sons upon their attaining the age of twenty-one years, re- spectively, and in the children of the daughters upon the deaths of their respective mothers, are valid. But further limitations expressed in the will, by which the share of each son dying under twenty-one, and daughter dying without issue, was to go to the surviving children upon the same contingency, as to each taker, as that on which an original share would have ve.sted, are void, because suspending the absolute ownership of such accruing shares during one or more minorities in addition to the lives of the widow and the first taker. Savage v. Burnham. 17 N. Y. 561. Devise made in 1842 to B. of the use of land " until Gloversville should be incorporated as a village, and then to the trustees of said village, to be by them disposed of for the purposes of "a village li- brary. Construction : (1) A devise of the use of land imports a gift of the land itself. (2) Had the devise been to B. " until G. shall be incorporated as a village," B. would have taken a base or qualified fee, and the qualifica- tion "until Gr.," etc., would have been a collateral limitation, making the estate determinable upon an event collateral to the time of its con- tinuance. (3) The limitation over to trustees, whether valid or invalid, did not affect B.'s estate, but B.'s estate would terminate on the incorporation of G. (■i) If the devise had been to B. in fee, or fee tail, and, provided G. be incorporated, to trustees, the invalidity, if it be such, of the devise to trustees would have made B.'s estate absolute. Such were Anderson v. Jackson, 16 Johns. 332 ; Lion v. Burtiss, 20 id. 483 ; Wilkes v. Lion, 2 Com. 338 ; Waldron v. Gianini, 6 Hill, 601. (5) Devise to trustees by way of conditional limitation, was void for remoteness, not being to a charitable use. Leonard v. Burr, 18 N. Y. 96. 416 X. ESTATES EST EXPECTAKCY. 33. SUSPENSION OP POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. Note 1. — Devise to B. and his heirs, tenants of the manor of Dale ; to B. during ■widowhood ; to B. until the return of B. from Rome ; to B. until 0. shall have paid him twenty pounds, illustrate collateral limitations. Note 2. — Although a devise be invalid to carry an estate, it is not for that purpose to be deemed stricken out of the will. Note 3. — " The rule, as we consider it to exist, is laid down with great distinctness in Lewis's Treatise on the Law of Perpetuities, p. 657, thus : ' The invalidity of a limitation on account of remoteness places all prior gifts in the same situation as if it had been entirely omitted in the dispositive system. The gift of a fee simple, therefore, or of the entire interest, subject to an executory limitation which is too remote, takes effect as though it had been originally limited absolutely, or free from any divesting gift. A limitation of a life estate or other partial interest, with a remainder expectant on it which is void for remoteness, of course remains in statu quo prius, neither receiving enlargement nor suSei'ing diminution. And the like holds with respect to executory limitations, not operating to divest previous par- tial estates, but expressed to take effect at some period subsequent to their determina- tion ; the limited interest remains as originally created, both as to character and ex- tent, without reference to the manner of devolution of the property after its expira- tion.' " See, to the same effect, 3 Fearne on Rem., 13 to 15, 134, ed. 1844. See Woodgate V. Fleet, 44 N. Y. 1. Devise taking effect in 1810 to three sons and four daughters of land in equal shares, and if either should die without issue, his or her share should be divided among the survivors. Construction : (1) The limitation in favor of surviving devisees, in case any of them should die without issue, was an executory devise. (2) A future estate or interest, here the executory devise, is a near one which must eventuate one way or the other, during the two lives and time provided by statute (the number of years was unlimited at common law). It is remote when it depends upon some contingency which may extend beyond the lives of a proper number of designated persons. (3) Here the possibility of the executory devise must eventuate dur- ing one life. (Note, as each one dies, etc., the survivor takes absolute fee.) (4) The difference between an executory devise and a contingent re- mainder is chiefly in name. (390.) (5) The release (without granting words) of some of the devisees to others carried their interests. Anderson v. Jackson, 16 Johns. 382. Quaere: Would a release to a stranger have done? it seems not. Miller v. Emans, 19 N. Y. 384. The will directed the investment of a fund to raise an annuity of $5,000 for his widow during her life. In case of her death before a. II. FUTURE ESTATES. 417 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. division of his residuary estate, which was to take place upon the death of two other persons, or at the expiration of ten years, such fund should fall into the residuum. If she should survive the period thus limited, then the fund provided for her annuity, to go to the testator's children and grandchildren. The disposition in both its alternatives is void for illegal suspension of ownership, as suspending the distribution, either for three lives, in fact, or for the definite period of ten years. iSame will: A bequest to executors, of $50,000 to be applied by them to the erec- tion of a college in Liberia if $100,000 should be raised for that pur- pose in this country, is void, as depending upon a contingency which may never happen, without any limitation of the period of suspension. Dodge V. Po?id, 23 N. Y. 69. A bequest of a sum of money to be invested in land, of which the rents and profits are to be applied to certain beneficiaries during fifteen years, the land then to be sold and the proceeds divided amongst the same persons, is void, because it contemplates a trust which would un- lawfully suspend the power of alienation. Beekman v. Bonsor, 23 N. Y. 298. A -will attempted to devise real estate used as a factory to the execu- tors, in trust to continue the factory in use for two lives in being, and after such lives to sell the same, with certain restrictions upon the dis- position of income. The provision failed as a trust, because the lives, on which it depended, were those of persons, who had no interest in its performance, for the statute requires it to be dependent upon the life of a beneficiary. A power, in trust, the execution of which was postponed until after two lives in being was valid. Downing v. Marshall, 23 N. Y. S66. The statute does not invalidate a trust, which may permit the sale of land and the application of the proceeds to the use of unborn benefici- aries within the duration of two lives in being. No illegal suspension of the power of alienation is effected because the executors, after the expiration of the trust term, may be required to retain in their posses- sion real and personal property — the ultimate right to which is vested — for the purpose of paying income to the widow for her life. Oilman v. Eeddington, 24 N. Y. 9. Devise to trustees of residue to be converted into personalty and held, used and managed * * * for the benefit of such of three younger children as should survive the testator "and if the said children should 53 418 X. ESTATES IN EXPECTANCY. 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. have attained the age of twenty-one" at testator's death, then trustees should pay over funds and accumulations to said younger children, or to the survivor of them (if one should then be dead) in equal propor- tions, share and share alike; and so the whole fund to one survivor, if there should be but one. If, at testator's death, any of said children should be under the said age, executors should hold and use the funds until all of said three children, or the survivor or survivors of them, should become of age ; and then to pay to them, or to the survivors of them in the same manner and in the same proportions as before pro- vided, in case of his not dying until after the youngest one living at the time of his decease should become of age. There was separate provision that "in case any of my said * * * children shall die before she shall become entitled to be paid in full, the amount coming to her for her share, and shall leave lawful issue, her share shall immediately belong to and go to such issue," but otherwise should go to survivors or survivor of these children. Testator died before children, and before any of them were of age. Construction : (1) Legatees were tenants in common and took distributively. Tucker V. Bishop, 16 K Y. 402. (2) The bequest did not, independently of the trust, or if the trust was valid, unduly suspend the power of alienation. (3) Had the interest been joint and contingent until the majority of youngest child, the absolute ownership would have been suspended un- duly and void. Hawley v. James, 16 Wend. 61 ; Coster v. Lorillard, 14 id. 265. (4) The trust, although relating to personalty, was valid. (5) The trust did not suspend the power of alienation of any of the three shares beyond the life of the daughter to whom it was given. (6) Upon the death of any daughter, without issue, the share prima- rily given her would go absolutely to the survivor or survivors. (7) At the death of the testator the fund vested in legatees subject to executory limitation to survivors, although not payable until youngest child attained majority. Futurity was not annexed to the substance of gifts, but to the time of payment. Grilman v. Eeddington, 24 N. Y. 9 ; Patterson v. Ellis, 11 Wend. 260. (8) If the trust estate were void and blotted out, the estates to the children would remain. (Instancing the legacy for $50,000 sustained in Hawley v. James, 16 Wend. 62, although the trust was void.) II. FUTURE ESTATES. 419 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. (9) Had there been notliing else in the will than bequest in trust un- til all the children were of age, the trust would have been void ; but the provision is that if any child should die under age her share should go to her issue, if any ; if not, to the survivor. According to this each share would vest absolutely on each one becoming of age, or dying, and thus be extricated from under the trust. Everitt v. Everitt, 29 N. Y. 39. " The power of suspending the alienation of estates in land, and the absolute ownership of personalty is expressly limited by statute upon life. Life must, in some form, enter into the limitation ; and any other term of limitation, however short, is unlawful. Where certain acts are to be done by congress or the legislature of Virginia, or other states, the performance of these acts is a precedent condition to the devolution of the estate. Their performance is not limited on life. This is a limi- tation in contravention of the statute. The legislative power might never be exercised. If its exercise at any period after the death of the testator, say within a year, would be valid, it would be valid if exer- cised at the termination of one hundred years. The suspension of the estate would, therefore, in each case, depend not on the statutory limi- tation, a life or two lives in being, but upon the volition of some legis- lative body, to be exercised at some indefinite time, or never. The es- tate might thus be suspended forever. Levy v. Levy, 33 N". Y. 97. Eose V. Rose, Court of Appeals, Sept., 1864; Phelps v. Pond, 23 N. Y. 69; Leon- ard v. Burr, 18 id. 96; Yates v. Yates, 9 Barb. 324; Morgan v. Masterton, 4 Sandf. S. C. 443; Hawley v. James, 16 Wend. 61, 131. (pp. 125-6.) If the purposes of a trust are separable, and some of them must arise within two lives, and there are others which can only become operative after the expiration of the two lives, the former may be sus- tained, but the latter can not be. Post v. Hover, 33 N. Y. 593. Provision that three legatees should take by survivorship was good, if there were further limitations, only such further limitations would be void. Oxley v. Lane, 35 K Y. 340, digested p. 263. A bequest by a New York testator to such persons as the judges of another state may appoint after his death to receive it, is ineffectual for any purpose, if unlawful in the state of testator's domicil. Such a bequest to persons unknown for the general purpose of founding, es- tablishing and managing in any other state an institution for the educa- tion of females, is bad under the laws of New York. Bascomh v. Albert- son, 34 N. Y. 584. In the sentence, "Or, in case such child or children should die with- out lawful issue, and thvs I shall have no lineal descendants, I give, de- 420 X ESTATES IN EXPECTANCY. 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. vise and bequeath my whole estate, real and personal, to the children whom my brother Eobert Ray and my sister Mary King may leave," etc., the words "may leave" may be read "may have," to sustain va- lidity of the disposition. DuBois v. Ray^ 85 N. Y. 162. A devise was in trust for the use of testator's children during their natural lives, and, on the death of his wife, or the death of any child leaving issue, the trustees were directed to apply the share of the in- come to which such deceased parent or child was entitled, to the use of the surviving child during minority, and the share absolutely on the child's attaining full age. But if such child die without leaving law- ful issue surviving, or if such issue die under age, such share should revert to, and become a part of, the residuary estate. Construction : The ulterior limitation over was void. Said ulterior limitation could be dropped, and the primary disposition of the estate be allowed to stand. Harrison v. Harrison, 36 N. Y. 543. Devise to trustees to receive and pay income to B., son, during his life, and then to son's wife for her life, and to convey property to issue of son, living at widow's death if he left widow, or at son's death if he left no widow ; if son died without issue, then, at expiration of life estates, to convey to others. B. died unmarried after testator. Construction: (1) The son might have married one unborn at death of testator, hence the trust was for the life of the son in being at death of testator and on a life not so in being at creation of estate as to realty, nor at death of testator as to personalty ; hence provision for widow and son was inop- erative. (2) That alternative limitation upon death of B. was valid, and as he died without issue, the executory devise took effect. Crompe v. Barrow, 4 Vesey, 681 ; Savage v. Burnham, 17 K Y. 561 ; Post v. Hover, 33 id. 593, 598; 1 Jarman on Wills, 3 Am. ed., 269, 270; Lewis on Per- petuities, 501-2. (3) There was a similar provision for another son, C, who had a wife living at making of will and death of testator. The provisions would have been good as to such wife had it not used the general language " on her decease, if he leave a widow," etc., which would cover a second wife who might have been a woman ■Mw&om, as in case of B.'swife; hence the provision was void, but 0. being then alive, it was held that, II. FUTURE ESTATES. 421 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. should be die leaving no widow, the alternative valid limitation would take effect as in B.'s case. Schetthr v. Smith, 41 N. Y. 328. A., by will, gave his residuary estate of real and personal property to trustees upon the trust to collect, invest same, and pay from net in- come a fixed amount to B., widow, and fixed amounts severally to chil- dren, etc.; if the income should exceed the aggregate amount thus fixed, to pay one-half of the excess to B. and children, and invest and accu- mulate the other one-half during life of B. And upon the further trust upon B.'s death to cause the property to be appraised, sell certain real estate, and make a division of the assets thus and otherwise realized into twelve equal parts. And upon the further trust to convey and pay in fee simple to each of his two sons three-twelfths thereof (" and I give, devise, etc., the same to him, or in case of his death, prior to the time of such distribution, to his then lawful issue"), and in case of the death of either son before such division, then to such son's issue then living, or if son so dying should leave no issue " living at the time of such division, the surviving son should receive and inherit the share of the deceased son." And upon the further trust to retain and hold as trustees under the will (" and I give, devise, etc., the same to them accordingly"), and in- vest and receive rents, income, etc., apply net income, etc., to use of C, daughter, during her life, and after C.'s death, or at time of distribu- tion, if C. died before distribution, to divide such shares into as many sub-shares as C. left children her surviving, retain one of said shares for each child and accumulate net income thereof during his minority, and on his arriving at the age of twenty-one years to pay same with accumulations (with power to apply to support meanwhile), and in case such child died during minority, to pay to its issue, if any, otherwise to surviving children ; and in case of default of issue of C, then to con- vey and pay to heirs at law. Similar provision was made for each of two other daughters. Construction : (1) B. took valid life estate as beneficiary. (2) Each of sons took vested remainder expectant in possession on death of the widow, at which very time it would become absolute to him, if then living (there would be executory devise to each son or his lawful issue of the other son's share contingent upon the latter dying without issue before division). (3) Trustees took in trust a legal estate for life of B., and a second new estate beginning at death of B., limited thereon for the life of C, 422 X ESTATES m EXPECTANCY. 23. SUSPENSION OF POWER OF ALIENATION OR OP ABSOLUTE OWNERSHIP. and as to the realty duriag the miaority of any one of C.'s children an estate in the sub share given to such child, but the trust, as to the per- sonalty during such minority, was void. (4) There was no interval during distribution between death of B. and beginning of son's estate in possession, nor between death of B. and beginning of trustees' estate for life of C, because the appraisal and distribution was in theory and in testator's intention a single act to be done immediately upon B.'s death, quite irrespective of time of the completion of said distribution. This is upon the rule that equity looks upon that as done which ought to be done and will treat the sub- ject matter and collateral circumstances and incidents in the same man- ner, as if the contemplated act had been performed exactly as it ought to have been done. (5) Hence there was no trust estate interposed between death of B. and estates given to sons and the trustees for the daughters, and hence no unlawful suspension of the power of alienation. Had the limitation been to trustees for B.'s life, then while making division the suspension would have been for a time not dependent on lives in being and hence void; but the court held that the executors needed and took no title for the purposes of appraisement and division, but acted under a power. (6) By 1 R. S. 723, sees. 15, 16 ; 726, sec. 37, a remainder in fee of real estate, to take eflfect upon the termination of two lives in being at the time of the creating of the estate, may be limited to a person not in being at that time ; and so a further contingent remainder, in favor of & person not in being at the creation of the estate, may be limited to take efiEect in the event that the person to whom the first remainder is first limited shall die under the age of twenty-one years. Hence, devise of real estate to trustees for life of B., then for life of 0., then for minority of C.'s child (possibly not in being at creation of estate), and in event of its dying under age to its issue (possibly not in being at creation of estate), or, if none, over, was good. (7) Section 16 is not applicable to personal property, for sec. 15, title 2, chap. 1, part 2, R S., declares that the absolute power of alien- ation shall not be suspended longer than two lives in being, except in the single case mentioned in section 16, which allows addition of time of minority ; but sec. 1, title 4, ch. 4, relating to personal estate, per- mits absolute ownership of personalty to be suspended for two lives only and omits references to exceptions in sections 15 and 16. Hence, as to personalty, the suspension for B.'s and C.'s lives, and during the minor- ity of C's child, was illegal, and limitation over of personalty in case II. FUTURE ESTATES. 423 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. of death of O.'s child during minority, was void. For the same reason accumulation of income of personalty for such minority was void. (8) Hence, O.'s child would take his sub-share of personalty abso- lutely at O.'s death, and immediate enjoyment of income thereof ex- tricated from the trust. Leonard v. Burr, ] 8 N. Y. 103 ; 2 Wash, on E. Prop., 2d ed., 357; 1 K. S. 726, sec. 40. (9) These failures, viz., of limitation over of personalty on O.'s child's deatli during minority and of provision for accumulation during such time of income of personalty, and of provisions to accumulate one-half of surplus income during life of wife, does not affect validity of re- mainder of will, because, when the effect of a limitation over is to abridge or defeat his prior estate, the result of such contingent limita- tion being void for remoteness, is that the person whose estate would be defeasible, if the remainder were valid, takes the estate discharged of tbe limitation. Oiting 2 Wasb. on Real Prop., 2d ed., 357 ; Leonard v. Burr, 18 K Y. 103 ; Ohurch v. Grant, 3 Gray, 156. (10) The trust to accumulate a portion of the surplus income during the life of B. is void. Such surplus belongs to the person presump- tively entitled to the eventual estate, viz., six-twelfths to sons, and the remainder to 0. and other daughters equally. The statute does not mean the ultimate estate, but the next estate that will arise upon the happening of the event that shall terminate the preceding estate, during which the accumulation was to take place. (11) Although there were several beneficiaries to take the income •during B.'s life, yet it was valid because it was all limited on B.'s life. (386.) Gilman v. Reddington, 24 K Y. 19 ; Harrison v. Harrison, 36 id. 543 ; Savage v. Burnham, 17 id. 569. (12) If a son or daughter should die before B., there was no provision that his or her issue would take parent's share of income, and it would belong to parties presumptively entitled to the next eventual estate in that share. Manice v. Manice, 43 N. Y. 305, modifying 1 Lans. 348. The law of the domicil governs. Chamberlain v. Ghamherlain, 43 ]Sr. Y. 425, digested p. 1321. Bequest to trustees for the establishment of a hospital for the sick and direction that trustees apply to legislature for a charter to incorpo- rate the same, and that, if the legislature should refuse grant thereof within two years next after testator's death, provided two lives named in will should continue so longj then over to the United States. Construction : (1) The statute against perpetuities was not violated and the corpora 424 X. ESTATES IN EXPECTANCY. 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. tion could take only in case the charter was granted within the two lives named. (2) Bequest was not void for uncertainty. (3) Queers as to validity of contingent bequest over to the United States, Burrill v. Boardman, 43 N. Y. 354. A bequest to trustees of personal estate to invest and reinvest, and pay over the income to an incorporated academy forever, is void under the statute of perpetuities. The only power in charitable and educational corporations to hold property in perpetuity, in trust, is by virtue of their charters and the acts of 1840 and 1841. Adams v. Perry, 43 N. Y. 487. Overruling Williams v. Williams, 8 N. Y. 534, so far as it holds the contrary. A. conveyed land to trustees upon the trust, to receive rents, eto and to apply same equally toward the support of B., wife, and the sup- port and education of C, son, a minor, and of any children of the said A. and B. " that may hereafter be born," and upon the arrival of 0. at the age of twenty-one to convey to 0. and B. (provided B. be then un- married) their respective portions, or all the right, title and interest of A., such proportions to be determined by the number of children of A. and B. living at the arrival of age of 0. " It is the express intention * * * * that all the said * * property shall go to and be divided among the said" B. and 0. " and all lawful children of" A. liv- ing at the time G. should arrive at age, in equal proportions, share and share alike. And that in the event of the death of B., C, or either of the said children, the share to which either would have been entitled shall be equally divided among the survivors ; and, if upon the arrival of C. of age, the said B. not living, sole and unmarried, her share shall continue to be held by trustees in trust for her and her benefit, so long as her husband shall survive, and trustees shall pay over to her such money as she shall require for her support, and in case she shall not survive her husband, her share shall be vested in her heiivs. And that the shares of the said children "as may be hereafter born" shall be held in trust for them until said children shall arrive at lawful age, with power of sale to trustees to convey and sell estate and apply pro- ceeds as above. Construction : (1) 0. took a vested estate at the age of twenty-one in one-fifth. (2) The trust continued as to one-fifth during joint lives of B. and her husband. (3) The trusts in favor of unborn children to continue until they II. FUTURE ESTATES. 425 83. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. respectively reached the age of twenty-one years, was void, as the power of alienation was suspended during lives not in being at creation of the estate. (•i) The failure of this trust did not affect other provisions for B. and C, but neither of their interests were increased thereby. (5) Three-fifths reverted to A., enjoyable in possession upon C.'s majority. Woodgate v. Fleet, 44 K Y. 1. Bequest to executor, in trust, to pay income to B. during life, upon his death to divide income equally and pay same to 0. and D. during their lives, and upon the death of both to child or children of D.; if D. died without children, then to trustees of Columbia College. Construction : (1) There was no vested estate in remainder until the death of the three cestuis que trust, and the bequest was therefore void. (2) The trust is one and inseparable and void. Knox v. Onaiivia, 47 K Y. 389. The system of charitable uses, as recognized in England prior to the Revolution, has no existence in this state.* Holmes v. Mead, 52 N. Y. 332. *R. S. 727, sec. 451 ; Shotwell v. Mott, 2 Sandf . Oh. 46 ; Williams v. Williams, 4 Seld. 535 ; Potter v. Chapin, 6 Paige, 639. Devise to trustees for life of M. and W. of two parcels of land, to be used, one as a church and the other as a parsonage lot, and upon death of M. and W. to be conveyed to any trustees authorized by the legislature to take and hold for church purposes ; and if no act were passed, then to rector, etc., St. M.'s Church, Beech wood, if church were incorporated, if not to testator's right heirs ; also bequest to said trustees of $5,000, the income thereof to be paid to support of the rector for the time being of said St. M.'s Church, or a clergyman of the P. E. Church appointed to and who should officiate therein, the principal to follow the disposition of the land. There was no act of the legislature, nor incorporation of the church named. Construction : (1) The trustees took no title of real estate and the trust was void. (2) The bequest by itself was valid, but as the general scheme failed, no effect could be given to part of it. Howse v. Chapman,, 4 Vesey, 404 ; Attorney General v. Davies, 9 id. 535 ; Same v. Bagley, 2 Brown, 429 ; Coster v. Lorillard, 14 W. R. 265 ; Harris v. Clark, 3 Seld. 242. 54 426 X ESTATES IN" EXPECTANCY. 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. (3) Whether devise failed in case of appointment by the legislature of trustees, or the creation of a corporation o£ the St. Mary's Church, Beechwood, was not passed upon but reserved until the proper parties should be before th.e court. Holmes y. Mead, 52 N. Y. 332. Note 1. — Beneficiary need not be described by name ; any other designation or description identifying him will suffice. Stubs v. Sargon, 2 Keen, 355, aflf'd 3 M. & 0. 507 ; St. Luke's Home v. Ass'n, etc., 53 N. Y. 194 ; New York Institution, etc., V. How's Exrs., 10 id. 84; Bernasconi v. Atkinson, 10 Hare, 345; Smith v. Smith, 4 Paige, 371. Note 3. — It is not an objection that the trust is for the benefit of one who shall for the time being perform certain duties and that the beneficiaries may change. Note 3. — It is not material to the validity of a legacy that the legatee should be definitely ascertained at the date of the will, or death of the testator, provided he be described so that he can be ascertained when the right to receive the legacy accrues. No undue suspension of ownership of personal property. Hatch v. Bassett, 52 N. Y. 359, digested p. 926. A charitable corporation may by bequest take and hold personal prop- erty limited to any of the corporate uses of the legatee and a direction that the principal shall be kept inviolate and the income only be expended is valid, provided the bequest be fixed and certain and give an immediate and vested interest. It does not offend against the statute of perpetuities, nor create a trust. Wetmore v. Parker^ 52 N. Y. 450. Distinguishing Hayes v. Hayes, 31 N. J. Eq. R. 365, and following Colt v. Colt, 53 Conn. 433. Prom opinion. — " Our statutes against perpetuities relate to expectant estates and limitations of future contingent interests in personal estate, and future estates in lands. The mortmain policy of this state is very simple, and is contained in each charter creating a charitable corporation. The amount of property which it may take and hold in mortmain is restricted ; but its ownership is absolute, and only qualified by its artificial nature. There is nothing contingent about it ; it is fixed and certain ; there is nothing expectant or future about it, but its interest is imme- diate and vested. A contingent future interest might be limited to sucli a corporation, and the law of perpetuity would apply until the contingency upon which the limita- tion depended happened, and if that period was not dependent 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 property 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 never could have any other or greater interest than it then had, and no one else had any interest, contingent or otherwise, in it. There was no expectant or future contingent interest in any one. 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. If this is the effect of the direction to invest the funds, the direction would probably be held void, while the gift would be sustained to carry out the main purpose of the testatrix, II. FUTURE ESTATES. 427 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP, within a well recognized principle. 1 "Wm. B. R. 438 ; 3 Bun-., S. C, 1416 ; 1 Coll. 381 ; 5 Sandf. R. 365. This principle need not be invoked in this case, if the views before expressed in favor of the capacity of the corporation to take in this way are correct, and the only result would be a modification in that respect of the statute against perpetuities." Citing Williams v. Williams, 4 Seld. 535 ; 33 N. Y. 116 ; 34 id. 613 ; Adams v. Perry, 43 id. 500. Note. — For the purpose of estimating the value of property held by any institu- tion its debts must be deducted. Citing Chamberlain Will Case, 43 N. Y. 447, note. Devise and bequest in trust for B. during life ; after his decease, in case he leaves heirs, to said " heir or heirs " absolutely when they become of age. lu case B. leave no " heirs or widow," then to C. In case B. leave, "a widow, heir or heirs" to them for life, and after death of heirs, absolutely to C. Construction : Trust for use of B. during his life valid. Provision for " heir or heirs" when they become of age, and provision for "widow, heir or heirs," unduly suspended the power of alienation. Provision that 0. should take in case of death of B. without leaving " a widow, heir or heirs " was valid contingent remainder. In case of B.'s death leaving widow or heirs of his body, trust estate would pass to heirs and next of kin under statute of descent and distribution. Kiah v. Grenier, 56 N: Y. 220. Note. — The term "heirs" meant heirs of the body and not heirs generally. See 1 R. S. 780, sec. 67. Bundy v. Bundy, 47 Barb. 304 ; 38 N. Y. 410 ; Scott v. Guernsey, 48 id. 106. The will of M., by separate and independent clauses, gave to his wife the rents, incomes and profits of his estate, real and personal, dur- ing her life, to the extent necessary for her support ; in case they were insufficient, he directed his executor and trustee to take and pay to her, from the body of the estate, what should be necessary from time to time. In another clause he bequeathed the rents, income and profits after the death of his wife to his two daughters during life, and after the death of the wife and daughters, he devised and bequeathed the estate to the issue of his said daughters. Construction : The provision for the wife was valid and would be sustained, although the devise over was void. Van Schuyver v. Mulford, 59 N. Y. 426. Distinguishing Knox v. Jones, 47 N. Y. 389. When, by devise, a remainder is limited upon more than two succes- sive estates for life, all life estates subsequent to the first two are void, 428 X. ESTATES IN EXPECTANCY. 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. and the remainder takes eflEect upon the expiration of the first two, as if no others had been attempted. Woodruff y. Cook, 61 N. Y. 638. Distinguishing Amory v. Lord, 5 Seld. 403; citing 1 R. S. 721, sec. 17. Note. — The remainder in this case seems to have been contingent. If so the case does not seem to be in harmony with Amory v. Lord, 9 N. Y. 403; Purdy v. Hayt, 93 id. 446; Dana v. Murray, 132 id. 604, 618. See opinion, p. 338. Grift by husband of residue to wife and three infant children jointly ; in case of the death of wife or either of children without issue, prop- erty to vest in survivors ; in case of death of the four children with- out issue of either of the children, over to other children with power to executors to lease, etc, during minority of children. Construction : Remainders to other children were too remote, and void. Ohipman v. . Montgomery, 63 K Y. 221. Suspending the power of alienation during the minority of a person not in being at the creation of the trust, in addition to two other lives Woodgate v. Fleet, 64 N. Y. 566, digested p. 351. Devise of residue to executors in trust, to pay the income and profits to two brothers and two sisters of the testator, in equal proportion, during their joint lives, and after their " several deaths " to divide the same among their children. * * * "In case either of my said brothers or sisters shall die, leaving the others surviving, then the in- come here intended for one or the other so dying shall be paid to thes issue or representative of the one or the other so dying." Construction : The design was that the corpus of the estate should remain undi- vided in the hands of the executors until the decease of all the brothers and sisters named ; that the interests of the children of the respective brothers and sisters did not vest in them at the death of the testator, but were future and contingent upon their surviving the parent ; and the provision was void. CoUon v. Fox, 67 IST. Y. 348, a£f'g 6 Hun, 49. Distinguishing Everitt v. Everitt, 29 N. T. 40. This case treats of contingent estates arising by survivorship — thus, if the estates be given to A., B., C. and D., with a direction that upon the death of any beneficiary the survivors shall take his share, is such share taken absolutely by the survivors, or does it again go over to the other survivors upon a second or third death ? The will was construed as if the estate were given in separate parts so that upon the death of any beneficiary his interest would absolutely vest in the survivors sev- II. FUTUKE ESTATES. 429 S3. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. erally, and this rule obtains unless a contrary intention appears. Smith V. Scholtz, 68 N. Y. 41. The same will was involved in Striker v. Mott, 2 Paige, 387; Brewster v. Striker, 3 N. Y. 19; Striker v. Mott, 38 id. 82. See Vested Estates, p. 385. Trusts were held to be several, and hence there was no undue suspen- sion of power of alienation. Stevenson y. Lesley, 70 N. Y. 512; afE'g and mod. 9 Hun, 637, digested p. 285. Defendant's testator, by his will, devised to his wife and two young- est children all his personal property, and the use of a farm until Jane 29, 1890, and directed his executor, within two years from that date, to sell the farm and divide the proceeds among certain persons named in the will. Construction : The widow and children took an estate for years in the farm, and the remainder therein vested in the residuary devisees named in the will, subject to the execution of the power of sale; the power vested in the executor, being a mere naked power of sale, did not suspend the power of alienation, and was valid. The will provided that " the personal property and use of said farm to be under the exclusive control and management of my wife, without interference by any person whatever." A valid power in trust was thereby created in the wife. Blanchard v. Blanchard, 70 N. Y. 615 ; aflE'g 4 Hun, 287. Limiting Beekman v. Bonsor, 23 N. Y. 398. Devise and bequest of residuary estate to his executors in trust, in case his three children survived him, to divide the same into three equal shares, one to be held for each of said children for life, and upon the decease of the child first to die, his or her share to go in fee to its law- ful is^sue, if none, then the share to be divided into two equal parts, one to be held in trust for each of the surviving children during life ; upon the death of the child next dying, the part or sub-share so held for such one to go to his issue, if none, to those who, if the surviving child were dead, without issue, would be the testator's heirs at law ; upon death of survivor, the sub-share to vest absolutely as specified. Similar provision was made as to the share held for the child the second to die. If dying without issue, one of the sub-shares to go to the issue of the child first dying, if any ; if none, to the persons who, if the surviving child were dead without issue, would be the testator's heirs at law. 430 X. ESTATES IN EXPECTANCY. 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. Construction : The power of alienation was not suspended and the provisiou was valid. Same will: Further provision that a specified amount of the rents, issues and profits of each share of the estate during the minority of the children for whose benefit it was, "shall be applied to his or her education and support," and the balance added to the principal; after the arrival of each child at the age of twenty-one, then that the whole of the income "shall be paid over quarterly to such child." Construction : The words "applied" and "paid over" were substantially equivalents, and the trust was within the provision of the statute of uses and trusts relating to express trusts, and was valid. (1 R S. 730, sec. 55.) Moore V. Hegeman^ 72 K Y. 376. Direction to executors after four years after testator's decease to, sell real estate and pay over proceeds to Bishop of E. upon certain trusts specified, and meantime to rent the real estate, and after paying taxes, etc., to deposit balance in a savings bank, to be paid with proceeds of sale of real estate and residuary personal estate to said bishop upon the terms mentioned. Construction : The direction to rent was an attempt to create an active express trust, whicb, if valid, would vest the title in the trustees, (Brewster v. Striker, 2 Com. 19 ; Tobias v. Ketcham, 32 N. Y. 319 ; Smith v. Scholtz, 68 id. 41), as the trustees could not alienate the lands during the trust term (1 R. S. 730, sec. 65), nor the cestui que trust dispose of his interest (1 E. S. 730, sec. 63), there was a suspension of the power of alienation not limited by life, and so void. (1 E. S. 723, sec. 15.) Hawley v. James, 16 Wend. 61 ; Hone's Ex'r v. Yan Schaick, 20 K Y. 564 ;' Boynton v. Hoyt, 1 Denio, 53. The direction was not maintainable as a power in trust, as the title vested in the trustees, and a power to accumulate rents for the purpose named was invalid. (1 R S. 726, sees. 37, 38.) The real estate descended to testator's heirs, subject to the power of sale, if valid. But the power of sale was void, as the proceeds were to be paid to the bishop, not absolutely, but as a trustee, and the power of alienation was for four years suspended, both as to him and others, and the whole scheme of the will as to trusts failed. Garvey v. McDevitt, 72 N. Y. 556, afi'g 11 Hun, 459. II. FUTURE ESTATES. 431 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. A trust which would be otherwise void as suspending the power of alienation for more than two lives in being, is not made valid because there is given to the trustee power to sell the trust property, the pro- ceeds of such sale remaining subject to the execution of the trust. Brewer v. Penniman, 72 N. Y. 603, aff'g sub. nom. Brewer v. Brewer, 11 Hun, 147. Devise (1) to B., widow, for her life ; (2) gift of income of estate to four daughters, " to be divided between them share and share alike, dur- ing each of their respective natural lives, remainder to their respective children," their heirs, etc. The power of alienation was suspended only for the lives of B. and as to each one-quarter for life of one daughter. Monarquey. Monarque, 80 N. Y. 320. C. died seized of certain real estate which had been devised to her by her mother, and leaving a will by which she gave all her estate, real and personal, to her husband for life, remainder to her son T. if he should live until he became of age ; if he should marry and die before maturity, leaving a child or children, then such child or children to take ; in case of his death before maturity unmarried and leaving no child, then she gave all the estate given to her by her mother to her two sisters, L. (the plaintiff), and E. ; if either should die, leaving no child, the survivor to take the whole; if both should die leaving a child or children, the share of each parent to go to her child or children ; if either should die leaving no child, the child or children of the one who died leaving a child or or children to take. The testatrix died the next day after th.e will was executed ; her husband died soon after ; her son T. died before he be- came of age, unmarried and leaving no child ; before his death, E. (sister of the testatrix) died leaving no child, and leaving a will by which she gave all her estate to her husband. Construction : Upon the death of the testatrix her husband became seized of an estate for life, and her son of a vested remainder in fee subject to be de- feated by his death before maturity, unmarried and without issue ; the clauses following the devise to him speak as of the date of such death, and it was the intent in case of its happening that then an absolute fee should immediately vest in the person or persons indicated ; therefore, there was no unlawful suspension of the power of alienation ; each of the sisters took an estate in expectancy, i e., a remainder contingent upon the death of the son, before maturity, unmarried and without a child, and contingent upon her surviving him ; upon the death of E. 432 X. ESTATES IN EXPECTANCY. 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. leaving no child, her interest ceased, and the estate in expectancy of plaintiff was enlarged so as to include the whole, instead of a moietj of the land ; and upon the death of the son it ripened into an absolute fee ; and plaintiff, at the time of making the contract, owned and could con- vey a perfect title. Kelso v. Lorillard, 85 N". Y. 177. E., by will, directed that $30,000 should be " kept invested " until his "youngest grandchild now born, or that may hereafter be born, before the final distribution " of his estate, should be of age ; his executors " out of the interest and net income of the fund to keep in repair a ceme- tery lot, and make up any deficiency " there might be in funds to pay legacies and meet the other provisions " of the will, and authorized them from time to time after five years " from his death " to make division and distribution of the surplus * * * and also if they see fit at the same time to divide and distribute " $10,000 of the principal between four children and four grandchildren named ; also, " thereafter from time to time " to " make division and distribution of other interest and increase '' between the beneficiaries named; if either should "die before payment, leaving issue " he directed " that his or her aforesaid legacies and portion " should go " to his or her children ; " if either should die without issue, then that his or her "legacy and portion" should go "to the surviving brothers and sisters." When his "youngest grandchild born, and that may be within twenty years born, shall arrive at full age, or if a granddaughter shall sooner be lawfully married " his executors to divide the remaining $20,000 into two equal parts, one to be divided equally between his four chil- dren, the other equally between all his grandchildren then living, in- cluding those born after his death with a similar provision in case of a legatee's death as was attached to the $10,000. There was no residuary clause. Construction : The whole bequest was invalid, because it unduly suspended the ab- solute ownership, and as to the $30,000 the testator died intestate. Same will: The testator gave $7,000 to his executors in trust to be kept invested for the benefit of an insane daughter, the principal to go to her if she should regain her reason before the final settlement of the estate ; other- wise, on her death, the same to " become a part of the general fund " in the hands of the executors "for final distribution." II. FUTURE ESTATES. 433 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. Construction : The daughter died without having regained her reason. The $7,000 fell into the residue undisposed of in the hands of the executors. Same will: The will gave to each grandchild born within twenty years after his death, and before final settlement of the estate, $1,000, to be paid to each on reaching full age, or if a granddaughter, upon her marriage. Construction : There was no illegal suspension of the absolute ownership and the bequest was valid. Smith v. Edwards, 88 K Y. 92, aff'g 23 Hun, 223- Notes from opinion. Note 1. — As to the $80,000 bequest, no trust was created, although it might be im- plied ; but a trust would not be implied to be at once declared illegal and void. (102, 103.) The legatees took distributively. as tenants in common. (103.) 1 R. 9. 737, sec. 44 ; Everi t v. Everitt, 29 N. Y. 71 ; Tucker v. Bishop, 16 id. 403. Note 2. — Nature of clauses postponing time of payment considered. (103-4.) Note 8. — The ultimate vesting of the fund was postponed for twenty years and not during designated lives in being, and was invalid. Schettler v. Smith, 41 N. Y. 334. Note 4. — " Its failure (of the bequest for $80,000) does not necessarily draw with it the portion of the bequest given to the four children and four grandchildren named and who were in esse at the date of testator's death. It does destroy so much of it as consisted- of the accruing interest upon the portion which failed, but the principal of $30,000 and the interest upon that as bequeathed to the eight legatees are not so inter- woven with the testator's general scheme as to be incapable of separation." Note 5. — "In Manice v. Manice, 143 N. Y. 369, it was said, that where the terms of a bequest import a gift, and also a direction to pay at a subsequent time, the legacy vests, and will not lapse by the death of the legatee before the time of payment has expired. And in "Warner v. Durant, 76 N. Y. 136, the general rule is declared to have an exception grafted upon it, that where the gift is to be severed instanter from the general estate for the benefit of the legatee, and in the meantime the interest 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 foi' the payment until the day fixed. " Note 6. — " The appellants rely largely upon the provisions for the distribution of the Interest to the named legatees, and seek to bring the case within the exception stated in Warner v. Durant, 76 N. Y. 136. That exception appears to be founded upon the idea that the gift of interest, eo nomine, is difficult to be reconciled with a suspension of the vesting, because Interest is a premium or compensation for the for- bearance of principal to which it supposes a title. (1 Jarman on Wills, 764.) It is a very plain inference from this assigned reason of the exception that it can only apply where the whole interest is given during the delay of payment. If any part of it is diverted to purposes other than the benefit of the legatees, that is treating the princi- 55 434 X. ESTATES IN EXPECTANCY. 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. pal as not belonging to them, but remaining in the estate as a source of income for the "benefit of the estate ; and so the authorities decide. (Leake v. Robinson, 2 Mer. 363 ; Hanson v. Graham, 6 Ves. 339 ; Watson v. Hayes, 5 Myl. & Or. 135 ; Warner V. Durant, supra.) In the present case the whole interest is not given. Some part of it, and that first accruing, is diverted to the purposes of the estate, and what is given is only through a permitted discretion of the executors prior to the period of final distribution. The disposition of the interest thus made can not safely be said to import an intention to vest the gift of the principal at the date of the testator's death." Note 7. — "By the ninth clause of his will, the testator gave to each and every grandchild born within twenty years after his death and before the final settlement of his estate the sum of one thousand dollars, to be paid to each on i-eaching full age, or if granddaughters, upon their earlier marriage. The bequest is accompanied by a request that his children consent to and acquiesce in the provision. The General Term held these legacies to be present gifts of separate and distinct portions of the testator's property, and that all must necessarily take effect completely within the period of one life in being at the death of the testator. We concur in the conclusion. The legacy vested in each grandchild immediately upon its birth, payment only being postponed until majority or marriage. The child of a daughter must necessarily take during the life of its mother, and that of a son, if born after his decease, is still re- garded as living at the death of its father for the purpose of the vesting of the legacy. There was, therefore, no illegal suspension of the absolute ownership." W., by will, directed his executors to convert his estate, real and personal, into money, invest proceeds, pay one-third of interest to his wife daring her life, and on her decease divide it equally among his children, in the manner provided for the two-thirds. In case of the death of either of his children without issue before the death of his wife, it was directed that "the share or portion" of the es- tate "and the interest thereof, to which such child would at that time; be entitled " should revert to the estate for distribution as thereinafter provided. In case of the death of any of his children leaving issue afkr the death of his wife, the share or portion of the estate " and the interest thereof, to which such child shall then be entitled, shall be paid to such issue, or to the next of kin of such deceased child." By the last clause, in case either of his sons should "acquire an amount of property equal to the amount of principal held in trust for them respectively," and should " have good habits and business qualifications " the executor was directed "to pay over such principal to the son so entitled thereto," atid there was added " I hereby give and bequeath to such son said princi- pal sum to be paid him." W. died leaving wife and seven children surviving. Construction : The primary intent was to give income to wife and children respect- ively and the corpus to the issue of his children, save in the case speci- II. FUTURE ESTATES. 435 23. SUSPENSION OP POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. fied in the last clause, in whicli clause the substituted gift was not in- consistent with the general purpose and such limitation was valid. The fund was converted into personalty. The will was to be construed as though it had in terms created a sepa- rate trust for each child, and his or her issue ; the utmost suspension of the ownership of any part of the estate was for the lives of the widow and one child, and hence there was no undue suspension of the power of alienation, and the trust was valid. As there was no devolution of the share of a child dying without is- sue after the death of the widow, in the happening of such a contingency, the share of the child so dying goes to the next of kin of the testator. Wells V. Wells, 88 K Y. 323. Notes from opinion. Note 1. — The counsel for appellants, to support their contention that there is a gift of the cm-pus to the children, refer to the doctrine that a general gift of the income of a fund, is a gift of the fund itself. Halg v. Swiney, 1 Sim. & Stu. 488; Patterson v. Ellis, 11 Wend. 260. But this doctrine does not apply in this case, for the reason that there is no general gift of the income to the testator's children. It is true that the gift of the income to the children is not in express terms limited to their lives, but this is the necessary construction from the gift over of the principal sum on their death. The direction to divide the income among the children, and to pay over the principal to their issue on their death, is equivalent to a bequest of the income, to the children lor life, and of the principal to their issue. Gilman v. Reddington, 34 N. Y. 10; Manice v. Manice, 43 id. 378. Note 3. — "The interests carved out of the trust are separable and distinct, and the ■will is to be construed as though in terms it had created a separate trust for each child and the issue of each child, in one undivided seventh part of the estate. Savage v. Burnham, 17 N.T. 571; Everitt v. Everitt, 29 id. 39; Stevenson v. Lesley, 70 id. 512; Monarque v. Monarque, 80 id. 320. The children of A., living at the death of the testator took distribu- tively, and the share of each vested at once, subject to the life estate of their mother, and liable to be diverted by death in her lifetime ; and therefore there was not a suspension of ownership for more than two lives. Bliven v. Seymour, 88 N. Y. 469. The creation of a trust in real estate does not ipso facto suspend the power of alienation ; it is only suspended when a trust term is created either expressly or by implication, during the existence of which a sale by the trustee would be in contravention of the trust. Although the time when a power of sale shall be exercised is in the discretion of the trustee, and he is meantime to receive the rents and profits, or although it be the duty of the trustee to postpone sale for a more favorable market, the power of alienation is not suspended ; although the interest of the beneficiaries is inalienable by statute 436 X ESTATES IN EXPECTANCY. 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. during the existence of the trust, this does not suspend the power of ahenation. If the limitation of the interests in the proceeds of sale be void, the power of sale to accomplish that purpose may be void. (Van Vechte i V. Van Veghten, 8 Paige, 124.) R, by will, directed his executors to sell his real estate ; that in this state at public sale in New York city, after three weeks' published no- tice, and other real estate in such places and manner as executors should deem best. After directions as to disposition of proceeds this followed ; "In view of the present great depression in real estate, it is my will that my executors * * exercise their discretion as to the time to sell the same, not longer than three years after my decease." The executors were to divide semi-annually the rents, income and profits up to final distribution, " among those to whom the bequests are made," in given proportions. Construction : Whether executors took a trust estate, or were simply donees of a trust power, there was no suspension of the power of alienation, as they could, at any time after the testator's death, convey an absolute fee in possession; there was no suspension of the power of alienation, and there was an absolute conversion of the real estate into personalty. Same will ; The executors were directed, after disposing of the residuary estate, and deducting expenses and legacy to wife, to divide the remaining pro- ceeds into fifty equal parts, to pay twelve parts to son 0., if then sur- viving ; if dead before such distribution, then to his lawful issue. Twenty-eight of such parts were given in similar language to three other children, and the remaining ten shares to an incorporated college. The college was restricted to the use of the income of its portion, and in case of its discontinuance, its trustees were directed to apply the fund to certain religious purposes specified. Construction : The restriction did not create a perpetuity (Wetmore v. Parker, 52 N. Y. 450), and if the provision in case of discontinuance was void, an absolute title vested in the corporation. Same will: In case any child died before the testator, the will gave "such lega- cies, estate, share or proportion of the one so dying unto his, her or their lawful issue, such issue to take the estate or share his, her or their parent would have been entitled to if living." II. FUTURE ESTATES. 437 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. Constructioa : Tlie childreu took the absolute title to their respective shares, subject to a limitation over ia case of death before distribution, and the ulti- mate vesting could in no event be postponed longer than the life of the parent. Direction to deduct all charges appearing on the testator's books of account against any legatee from his share was valid. Robert v. Gorniyig, 89 N. Y. 225, aff'g 23 Hun, 299. From opinion. — Note 1. — Devise by implication. — To constitute a devise by im- plication, the intention must be clear. (337.) Note %.— Power in trust favored. — This rule has also been frequently applied in cases involving questions under our statute of uses and trusts, where a trust estate, if held to result from the language and dispositions of a will, would render it illegal and void. In such cases the courts, for the purpose of sustaining the will, construe an authority and duty conferred or imposed upon executors, where it is possible to do so, as a mere power in the trust, although the duty .mposed, or the authority con- ferred, may require that the executors shall have control, possession, and actual man- agement of the estate. Downing v. Marshall, 23 N. Y. 366; Post v. Hover, 33 id. .'59^3; Tucker v. Tucker, 5 id. 408. But there are many authorities tending to sustain the proposition, that a trust will be implied in executors, when the duties imposed are active, and render the possession of the legal estate in the executors, convenient and reasonably necessary, although it may not be absolutely essential to accomplish the purposes of the will, and when such implication would not defeat, but would sustain the dispositions of the will. Craig v. Craig, 3 Barb. Ch. 76; Bradley v. Ami- don, 10 Paige, 335; Tobias v. Ketchum, 83 N. Y. 339; Vernon v. Vernon, 53 id. 351; Morse v. Morse, 85 id. 53. See, also Brewster v. Striker, 3 id. 19." Note 3. — Incidental delays. — " The statute of perpetuities is not violated by direc- tions which may involve some delay in the actual conversion or division of property, arising from the necessity of giving notice, or doing other preliminary acts. Manice V. Manice, 43 N. Y. 303. Such delays are not within the reason or policy of the statute. The statute was aimed against the creation of inalienable trust estates, or contingent limitations, postponing the vesting of titles beyond the prescribed period. The act of 1837, ch. 460, sec. 43, provides that sales of real estate made by executors in pursuance of an authority given by any last will, unless otherwise directed therein, may be public or private. A public sale implies prior notice. The direction that the sale should be public was clearly valid, and it can make no difference upon the point now in question, whetlier the length of the notice (if reasonable) is prescribed by the testator or is left to the judgment of the executors." Note 4. — Whether legacy is vested or contingent. — "Where there is no direct gift, and words of condition such as if or upon are used, in connection with a direction for payment at a future time, the time is regarded as of the substance of the gift, and the legacy is contingent and not vested. But the question is generally one of intention, and the whole will is to be considered in determining the intention of the testator. * * * The postponement of the payment, where it is made for the convenience of the estate, is consistent with the vesting of the legacies, and the gift of the interme- diate income, indicates an intention to vest the corpus from which the income is to be derived. Packham v. Gregory, 4 Hare, 396; Hanson v. Graham, 6 Ves. 339; Davies v. Fisher. 5 Beav. 201; 1 Jar. 843; 1 Rop. on Leg. 573; 2 Wms. on Exrs. 1248." 438 X ESTATES IN EXPECTANCY. 83. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. v., by will, gave a bequest to her executors of $30,000 in trust " to pay over the net income of $10,000, part of such sum," to each of the three unmarried nieces of the testatrix who were named "so long as each remains single ; upon the marriage of either to pay over to her $1,000 of the principal of which she has enjoyed the income ; " and to pay over the residue of the $10,000 to the surviving nephews and nieces of the testatrix. Construction : There was no undue suspension of the power of alienation and the provision was valid. Each legatee had a life interest in $10,000 of the trust fund, and upon her death or marriage the title to the same would immediately vest. In the Matter of the Will of Verplanck, 91 K Y. 439, mod. and a2'g 27 Hun, 609. The Eevised Statutes (723, sec. 17) declaring that "when a remainder shall be limited on more than two successive estates for life, all the life estates subsequent to those of the two persons first entitled thereto shall be void, and upon the death of those persons the remainder shall take effect,'' refers only to vested, not to contingent remainders, and executes the remainders in possession only in favor of such ascertained persons as, except for the void life estate, would under the will or deed be en- titled to the immediate possession. Hence, when the gift in remainder is upon a contingency which haa not happened at the time of the death of the second tenant, th.e provision does not apply, and the gift is mvalid. D., by will, gave his real estate to his sisters J. and 0. "during their respective lives," and after their deaths directed it to be sold by the executors, the proceeds to be invested, and the income to be paid by them to E. for her life, and the principal to be divided equally among any children " she may leave ; " if none, then the principal to go to other persons. The two sisters and E. survived D. J. died before C^ and E. survived them. Construction : Sisters took, as tenants in common, life estates with cross remainders;^ each took a distinct and several freehold for life in one-half of the farm. The remainder given to the children of E. was contingent. Upon the death of J. and the consequent termination of her life es- tate, a second life estate vested in C, and upon her death the limit of II. FUTURE ESTATES. 439 03. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. the Statute, as to that share, was reached, aad hence the third attempted life estate in E. was void. The remainder, as to the one-half in which J., had a life estate, to E.'s children or others could not take effect at the death of 0., because it could not be ascertained until the death of E., who would take, and hence the remainder was void, and the title to the undivided half of the land subject to the power of sale descended to the heirs at law. In re Eyder, 11 Paige, 185 ; Savage v. Burnham, 17 K Y. 671 ; Car- michael v. Carmichael, 4 Keyes, 346. The devise to E. was valid as to the share of 0., as upon her death but one life estate therein had run, and she was entitled to the income from one-half of the proceeds during life, and the remainder limited thereon was valid. A remainder in fee is not invalid because limited in favor of persons not in being when the limitation is created, or not ascertainable until the termination of the precedent estate, provided the contingency upon which it depends must happen within or not beyond the prescribed period for the vesting of estates. Grilman v. Eeddington, 24 N. Y. 9 ; Manice v. Manice, 43 id. 303. Purdy V. Hayt, 92 K Y. 446. From opinion. — " The construction that section 17 applies only to vested re- mainders, is. moreover, sufficiently plain upon its language. The remainder, the section says, is to take effect in the same manner as if no other life estate had been created. Where the remainder was contingent when the life estate commenced, and remains so at the death of the tenant of the second life estate, it would not vest, although no other life estate had been created, and the statute gives effect to remainders only in the same manner as if limited upon two life estates instead of three. It is plain, we think, that the statute only eaecutes the remainder in possession in favor of such ascertained persons as, except for the void life estate would, under the terms of the will or deed, be entitled to the immediate possession. See Knox v. Jones, 47 N. Y. 397 ; Smith v. Edwards, 88 id. 104. * * * "The question as to whether the remainder can be sustained as to the share of the sister of the testator, last dying, in view of the statute of perpetuities, is ia one- aspect a novel one. It is apparent that the power of alienation was suspended by the' contingent limitation in remainder, and such suspense could not lawfully exceed two lives, and in a single case, a minority in addition. There was, under the will, a limitation for three lives as to the share of one of the two sisters of the testator, but upon which share that limitation would operate, could not be known until one of the sisters should die, and that event would render it certain that the unlawful limita- tion in remainder, was of the share of the sister so first dying. The question there- fore arises, whether it wholly defeats the remainder, that it could not be ascertained, until one life estate was spent, which of the shares would be unlawfully suspended. We perceive no good reason why such a result would follow. The rule is well settled that where by the terms of the instrument creating an estate, there may be an unlawful suspension of the power of alienation, the limitation is void, although it 440 X ESTATES m EXPECTANCT. 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. turns out by a subsequent event, as by the falling in of a life, no actual suspension beyond the prescribed period, would take place. Hawley v. James, 16 Wend. 131. But this rule relates to cases where, if the limitations take effect, in their order, as contemplated by the grantor or devisor, some of the estates limited will not vest within the prescribed period, and they are cut oflE as too remote, although it may happen that the estates so cut off, would, by events subsequently happening, take effect within two lives. " The case here is not, we think, within this principle. In the one case the vice affects the whole limitation, and in the other, the limitation of a part only of the property devised, the only uncertainty being as to the part the title of which will be unlawfully suspended, and this will be ascertained within the period of a single life. Where the precedent or particular estate is given to several persons as tenants in common, the remainders limited upon the estates of a- part of the tenants in common, may fail, without affecting the remainders limited upon the estates of the others. Fearne on Rem. 193; Hawley v. James, supra. We think, therefore, the unlawful suspension under the will in question, affected only the share of the estate give for life to the testator's sister Jane. '' Note 1. — The construction of the will was necessary to determine the questions arising on the accounting, and in such a case jurisdiction of the surrogate to con- strue a will attaches as incident to that proceeding. (450.) Riggs v. Cragg, 89 N. Y. 479 ; In re Verplanck, 91 id. 439. Note 2. — Joint tenancy and tenancy in common considered. (453-3.) Note 3. — A cross remainder was here raised by implication. Note 4. — The remainder to E.'s children was not to them as a class. (454.) M. devised real estate to his executors ia trust, to hold one-third part thereof for the benefit of each of his three daughters during life, and upon the death of a daughter leaving a husband and lawful issue, the executors should stand seized of her one-third from and immediately after her death, in trust for the sole use and benefit of such issue ; in case of the death of a daughter unmarried, in trust for such persons as she may by will appoint, and in default thereof, for the benefit of her next of kin. Construction : The power of appointment related to the remainder in fee and in each event provided for the trust in the executors upon the death of a daughter would be passive, the remainder vesting in the beneficiaries. /Same will: One of the daughters died unmarried and leaving a will, by which she gave her real and personal estate to her two sisters, who survived her, and to the survivor of them, and to the heirs, executors and administration of such survivor. II. FUTURE ESTATES. 441 23. SUSPENSION OF POWER OF ALIENATION OR OP ABSOLUTE OWNERSHIP. Construction : This was a valid execution of the power of appointment as to the one-third of the real estate, and the limitation in devise to the survivor did not unlawfully suspend the power of alienation. Mott v. Ackerman, 92 N. Y. 539. M., by her will, gave the bulk of her estate to three persons, who were her lawyer, her doctor, and her priest, absolutely as tenants in common. It was not intended by her to give to the persons named any beneficial interest, but her design was to devote the property to certain charitable purposes; this she was advised could not be done by €xpress provision in her will, but only by an absolute gift to indi- viduals, to whose honor she could confide the execution of her pur- pose. She signed a letter of instructions, contemporaneous with the will, addressed to the legatees and devisees, stating the reason for the gift and dictating the purpose, which was in substance that during their lives, and after their deaths by some permanent arrangement to be made by them, the income of specified portions of the fund should be given to indeterminate persons of their selection, and any surplus of income to such charities as they might select. The will was executed in reliance upon a promise of the legatees to apply the fund faithfully and honorably to the charitable uses so specified. In an action to establish a trust which, failing as to the beneficiaries, should result to the heirs at law and next of kin, held, that the gift could not be sus- tained as an absolute one to the persons named, as this would be a fraud upon the testatrix ; that the secret trust attempted to be created could not be enforced, nor would equity permit it to be carried out, as it was in violation of the statute against perpetuities, but would impose a trust upon the fund for the benefit of the heirs and next of kin ; and that therefore the action was properly brought. Matter of Will of OHara, 95 N. Y. 403. A., a citizen of, and dying in Massachusetts, left a will admitted to probate in that state. After providing for the payment of life annuities to twelve different persons, the will directed that the residue of the eatate should remain in the care and custody of his executors and trustees, and be invested until the death of the last survivor of the life annuitants, and that it should then be divided among grandchildren ^er stirpes. The will was valid under the laws of Massachusetts ; it con- tained no express direction for conversion or sale of the real estate. The testator left real estate in New York and real estate and personalty in Massach usetts. 56 i42 X. ESTATES IN EXPECTANCY. iS. SUSPENSION OP POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. Construction: There was no provision for equitable conversion and no title could vest in the beneficiaries until the final division ; and as to the real estate in the state of New York, the validity of the will was to be determined by the laws of that state, whereby it worked an unlawful suspension of the power of alieuation and was void. It seems, if the power of sale could be implied, it would not validate the will. Hdbson v. Hale, 95 K Y. 588. Grant to trustees in antenuptial contract, then a devise executing power of disposition to children and provision that in case either or any of children living at testatrix's decease should die before coming of age without issue, his share shall vest in the survivors or survivor, was valid, as upon the death of the testatrix there were persons in being, viz., her children, by whom an absolute title could be conveyed. Beardsley v. Hotchkiss, 96 K Y. 201. K., by will, devised to his executors real estate in trust, to receive the rents and profits and out of the same to pay to each of two grandr sons $700 when he became of age, and in case either died before major- ity the survivor to take the whole $1,400 ; the trust to continue until K's son C was of the age of twenty-five, or sooner died. If 0. reached that age he was to have the net income less the $1,400, during life, and " If he should die leaving any lawful children the said real estate *■ * * is to become theirs in fee when they arrive at the age of twenty-one, and the same is devised accordingly." Construction: The provision for the grandchildren, conceding it was to be consid- ered as a trust, was simply a mode of securing the payment of the lega- cies, not a provision for the maintenance of infants, and so did not render the estate inalienable ; the interests of the cestui que trust were assignable, the trust being for the payment of a sum in gross. (1 E. S. 730, sec. 63.) The meaning of the will was, when C. was twenty-five years of age the trust should cease, he thereafter taking the income as tenant for life, charged with the payment of any amount unpaid of said legacies, the remainder in fee being devised to his children, if he have any, when they come of age ; C, as owner of the next eventual estate, was entitled to any surplus of income arising during the trust term: if C. died without issue, the fee would vest in testator's heirs ; if he should have a child or children, they would take fee absolutely, and in case of their death under age, the fee would vest in their heirs; there was therefore, no unlawful suspension of the power of alienation. It is only a trust to II. FUTURE ESTATES. 443 23. SUSPENSION OF POWER OE ALIENATION OR OE ABSOLUTE OWNERSHIP. accumulate the rents and profits and apply them to the use of a person generally, or a trust to accumulate them for the benefit of one or more infants, which renders the estate inalienable. (1 R. S. 729, sec. 55.) Had the trust continued through the life of C. there would have been no un- lawful suspension of the power of alienation. Had there been a contingent remainder, limited on the fee, to take effect in case of the first devisee dying before twenty-one, the estate would have vested in the first devisee, defeasible by condition subse- quent. Manice v. Manice, 43 N. Y. 380 ; Roome v. Phillips, 24 id. 463 ; and the suspension of the absolute power of alienation during the minority of the first remainderman would be authorized by statute. 1 R. S. 723, sec. 16. Badley v. Kuhn, 97 N. Y. 26, mod'g 28 Han, 573. Note 1. — It was erroneously claimed that the trust was void as it was contended that it must continue until $1,400 was realized for the grandsoas. (31.) Note 2. — Even if the direction to accumulate the rents could be construed to he for a longer term than the minority of the beneficiaries, the excess only would be void. (33.) The statute of uses and trusts (1 R. S. 728, sec. 55), does not require a trust to be limited, as to its duration, upon the lives of beneficiaries alone ; it permits rents and profits to be received and held for the bene- fit of any number of persons during their lives, or for "a shorter time;" and, under the statute against perpetuities (1 R. S. 723, sec. 15), it is immaterial whether the two designated lives, beyond which the power of alienation may not be suspended, are strangers or beneficiaries. A devise, therefore, in trust to receive and apply rents and profits during the lives of more than two beneficiaries, but terminable in any event upon the expiration of the lives of not more than two persons who are strangers to the trust, meets the requirements of both statutes. Ra- pallo, J., dissenting. Accordingly, held (Rapallo, J., dissenting), where a devise was to a trustee, during his life, to receive the rents and profits and apply them at his discretion to the support and education of the children of the tes- tatrix, nine in number, with remainder to them, that the devise was valid. C, in 1845, devised real estate to a trustee for the benefit of M., his married daughter, during her life, with the expressed intention tliat the same should not be subject to or liable for any of her husband's debts, and that in no event should he have any estate or interest therein. Said devise, however, was declared to be upon the condition " and subject to the power and authority " of M. to dispose of the estate, both real and 444 X. ESTATES IN EXPECTANCT. 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. personal (the real estate in fee simple) " by grant or devise," and in case M. failed to so dispose of it, the remainder was given to the children of M., living at her decease. Construction : If the two provisions, one creating a trust and the other conferring power to the cestui que trust, should be deemed so inconsistent and irrec- oncilable that both may not stand, the trust must yield to the power; but in this case the power operates alone upon the remainder, and the trust relates to the life estate, and both are valid and operative. Same will: In 1855 M. procured a conveyance to herself of the trust estate under the act of 1849 (chap. 375, L. 1849). M. did not convey the same, but devised all her real estate to her husband during his life, in trust, to re- ceive the rents and profits and apply them, in his discretion, to the sup- port and education of their children, with remainder to them in fee, with power to convey the real estate "either in fee or lesser estate," the consideration to be invested and disposed of for the benefit of the chil- dren in the same manner as provided for in relation to the original estate. Construction : This was not a simple delegation of the power to convey, given M. by her mother's will (C.'s will), but was a full and complete disposition of the whole estate by will as authorized. It seems, that even if the provision were simply a delegation of the power to convey, it would be valid, for such power is general and bene- ficial, having in it no element of trust or confidence, and so may be delegated. Ingram v. Ingram, 2 Atk. 88; Berger v. Duff, 4 Johns. Ch. 368, distinguished. The power granted by the will of M. was not invalidated by the fact that the donee (her husband as trustee) was authorized to sell not only the fee but " a lesser estate." If the power authorized the creation of a third life estate, this was alienable at the moment of its creation, and so did not work an unlaw- ful suspension of the power of alienation. If three successive life es- tates preceding the remainder were inadmissible, the only effect would be the destruction of the last. The " lesser estate " might be for the life of the trustee, and as thus a lawful estate might be created, it was not to be assumed that an unlawful one was intended to be authorized. Eoot V. Stuyvesant, 18 Wend. 257, questioned. Orooke v. County of Kings, 97 K Y. 421. II. FUTURE ESTATES. 445 23. SUSPENSION OF POWER OF ALIENATION OB OF ABSOLUTE OWNERSHIP. Notes from opinion. 1. "In Cutting V. Cutting, 86 N. T. 536, the meaning and construction of the absolute power of disposition specified in sections 81 to 85, inclusive, of the stat- ute relating to powers, was settled with a care and precision which leaves us at liberty to take and depend upon the result without repetition of the analysis which led to it." 3. "In view of the language used, and the cases bearing upon Its interpretation, which were quite elaborately considered and digested in City of Portsmouth v. Shackford, 46 N. H. 433, I incline to the opinion that each of the nine children was entitled, during the trustee's life, to an equal share of the income, either in support and educa tion, or in unexpended surplus, payable with the remainder, and that the sole discre- tion of the trustee was to determine and control how much of each child's share should go to that child in support and education, and how much accumulate for such child as unexpended surplus." 3. " The estates created under the will of M. must, in considering the question of the suspension of the power of alienation date back to the will of C.,.the mother." 4. "Notwithstanding Root v. Stuyvesant, 18 Wend. 357, we are not to assume, wh^n a lawful estate can be created under the power, that an unlawful one was in- tended to be authorized." 5. " The trust for the benefit of Mrs. Crooke, but for the reasons hereinafter given, would have been valid and effectual. It was not rendered illegal or invalid, simply because it could not be terminated at her will by the exercise of the power of disposi- tion given to her; such a trust may be created for the life of the beneficiary or for any shorter term. 1 R. S. 738, § 55, sub. 3. The term less than life need not be a defi- nite one. The purpose of the statute is answered if it can not extend beyond the life. Within the limits of life, the duration of the trust may depend upon the will of the trustee or of the cestui que trust ; and it may be terminated by the exercise of a power of sale by the one or the other. Such a power is not necessarily repugnant to the trust.nor is the conveyance under the power any violation of the statute which makes trust estates inalienable. Belmont v. O'Brien, 13 N. Y. 394. A sale in such case, by the trustee, is not in contravention of the trust, and hence is not prohibited by section 65, 1 R. S. 730. A sale by the cestui que trust is not a sale of his beneficial interest during the trust term, and hence condemned by section 63. It is a sale of the corpus of the trust estate, according to the will of the creator of the trust, by which the trust Is terminated. "Section 60, 1 R. S. 739, provides that ' every express trust valid as such in its crea- tion, except as herein otherwise provided, shall vest the whole estate in the trustee in law and equity, subject only to the execution of the trust.' This does not mean that the entire absolute fee shall be vested in the trustee, but simply so much of the estate as is put in trust and as is necessary to feed the trust. The remainder of the estate may remain in the creator of the trust, or may be disposed of by him in some other way or to some other person. The trustee takes a legal estate commensurate with the equitable* estate, the legal estate being essential to uphold the trust. It is the whole trust estate that is vested in the trustee. An estate may be so vested subject to re- mainders and other future estates, and subject to the execution of a power of sale on the part of any person who may terminate the trust. But during the continuance of the trust, the entire legal estate must be vested in the trustee. Embury v. Sheldon, 68 N. Y. 337; Stevenson v. Lesley, 70 id. 513." 6. "The same section provides that the person for whose benefit the trust is created shall take no estate or interest in the lands, but may enforce the performance of the trust in equity. This is to be construed as having reference to so much of the estate 446 X ESTATES IN EXPECTANCY. 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. as is put in trust ; such estate beiug vested in the trustee, tlie beneficiary of the trust can have no Interest therein, but can simply have the right to enforce the trust. A beneficiary may, however, have a remainder, either contingent or vested, subject to the trust ; and so he may have an estate that precedes tlae trust to be enjoyed by him before the trust shall take effect ; and so, too, subject to the trust term, the beneficiary may be the donee of a power or even a trustee for some other person in a valid trust.'' 7. " But here the power of disposition was to be exercised absolutely for her own ■benefit, at her own will, and not for the benefit of any other person whatever. Such a power is general because it authorizes the alienation of the land in fee to any person whatever. 1 R. S. 733, § 77!" 8. "The power is also beneficial, because the donee alone was interested in its execu- tion. (Sec. 79.) She could execute the power by giving, selling or devising the prop- erty, and she could tlius terminate the trust when she came to exercise the power of sale. She was not bound to convey the land in fee simple; the words in parenthesis, ' the real estate in fee simple,' were inserted only to show the extent of the power, the quantity of the estate which she could convey, and not to limit the power. She could convey less than a fee, and then the interest not conveyed would pass under the limitations over to her children. So she could convey one interest at one time and another at a subsequent time until she had conveyed the fee simple, and thus com' pletely executed the power. Cunningham v. Anstruther, L. R., 3 Scotch App., 233; 4 Cruise's Dig. 245, sees. 34, 37." 9. "It is provided in the. will that in case the power was not executed, the es- tate was, at the death of Mrs. Crooke, to vest in and become the absolute property of such children as she should leave at her death. This as to the real estate is a valid limitation over by way of an executory devise, as it would have been called at com. mon law, or a contingent remainder, or conditional limitation under the Revised Statutes, taking effect in possession at the instant of Mrs. Crooke's decease. 1 R. S. 733, sees. 9, 10, 13; 735, sees. 24, 27 ; Pell v. Brown, Cro. Jac. 590; Jackson v. Ed- wards, 23 Wend. 498; Chrystie v. Phyfe, 19 IST. Y. 345 ; Oilman v. Reddington, 24 id. 16 ; Terry v. Wiggins, 47 id. 513, 518. At the death of Mrs. Catin the children took an expectant future estate, which was their property, alienable, descendible and devisable as such, and as such protected by the law. 1 R. S. 735, sec. 35; Ham v. VanOrden, 84N.Y 257." 10. " Under the power Mrs. Crooke had the right to dispose of the entire fee of the land as she willed, for her own benefit, either in her lifetime or by will at her death. Hence, she had an absolute power of disposition, within the meaning of sec- tion 85, 1 R. S. 733, which provides that ' every power of disposition shall be deemed absolute, by means of which the grantee is enabled in his lifetime to dispose of the entire fee for his own benefit.' Therefore, she took the fee of the land, sub- ject to the future expectant, contingent estate limited to her children, and so far as the will attempted to create a trust which would otherwise have been valid,»it was in- operative. It is provided by section 83, 1 R. S. 733, that where an absolute ' power of disposition shall be given to any person to whom no particular estate is limited, such person shall also take a fee subject to any future estate that may be limited thereon, but absolute in respect to creditors and purchasers.' Here no estate in the land was, by the terms of the will, limited to Mrs. Crooke. 1 R. S. 739, sec. 60." 11. As to power of donee to delegate the exercise of the power, see p. 453, et seq. B. devised his residuary real estate to his executor in trust, to receive the rents and income, to divide the same into four parts, and pay each II. FUTURE ESTATES. 447 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. of said parts to beneficiaries named, during the lives of the two persons designated, who were straagers to the trust Construction : There was no unlawful suspension of the power of alienation, and the trust was valid. Downing v. Marshall, 23 N. Y. 366, distinguished and limited. Same will: By a previous clause B. devised to his wife, in lieu of dower, the use and income of a house and lot during life, and upon her death, to be- come a part of the residuary estata Construction : There was no unlawful suspension of the power of alienation ; upon refusal of the widow to accept, the provision became inoperative. Bailey V. Bailey, 97 K Y. 460. From opinion. — "It is insisted that the title to the house and lot did not vest until the death of three persons, the widow, Tlioraas Bailey, and Webster Mabic, and hence there was an illegal suspension of the power of alienation, and the devise was void. The gift of the use and income was equivalent to a devise o f the land itself during the life of the widow, and she had a legal title and was entitled to pos- session of the same. 3 Washb. on Real Prop. 450; 3 Jarman on Wills, 534; Monarque V. Monarque, 80 N. Y. 334 ; Craig v. Craig, 3 Barb. Ch. 76. " Under the circumstances, the estate devised to the widow was a life estate and was transferable, not being within the provisions of 1 R. S. 739, sec. 63. The .fee in tlie house and lot was vested in the persons named in the seventh clause of the will, and being a future expectant estate upon the death of the testator, they could immediately convey the fee. 1 R. S. 733, sees. 8, 9 and 13. " It should be remarked that the widow, to whom the devise of the house and lot was in lieu of dower, refused to accept the same, and they thus passed into the hands of the executor and trustees with the rest of the estate devised by the sixth clause of the will. She having thus elected to take her dower, this provision was of no avail, and it must be considered as if it had never been made, and the house and lot be- came a part of the residuary estate from the beginning, and the devise was not liable to the objection that the power of alienation was restrained during the life of the widow." The will of E. gave her residuary estate to her executors in trust to divide the same into six equal parts, to invest four of them, and to receive and pay the net income thereof in equal shares to four children of the testator, named, during their lives, and upon their deaths, respect- ively, " to transfer the share of the one so dying to his or her child or children upon arriving at the age of twenty-one, and to the lawful issue of anv child who mav be deceased." The will then provided, " if any 448 X. ESTATES IN EXPECTANCY. 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. such children should die before the age of twenty-one, and without having lawful issue, then the share or portion of the one so dying shall become and form part of my residuary estate for the benefit of all my children." At the time the will was executed, all but one of the four children were of age, and at the time of the death of the testatrix, all were of age. Action for the construction of the will. Construction : The will created a separate trust as to each of the four shares, to con- tinue during the lives of the beneficiaries respectively, with remainders to their respective children or issue; and the disposition was thus far valid ; the words " such children " in the last clause referred to the children of the beneficiaries named, not to the beneficiaries themselves; but in any event, as the ulterior contingent limitation so created was separable from, and merely incidental to, the primary trust, its failure did not afifect the validity of such trust. /Same will: In the event of the death of either of the sons of the testatrix sO' named as beneficiaries, leaving a widow, the will provided that the net income of the share of the one so dying should be paid to his widow during her life, etc. One of the sons was unmarried at the time of the death of the testatrix. Construction : If the contingent limitation over after his death was void, the pri- mary disposition in trust for his benefit was not disturbed, nor were the- other dispositions of the will thereby affected ; and, therefore, the share,^ to the income of which said son was entitled, was not alienable during^ his life, and a deed thereof from him conveyed nothing. Tiers v. Tiers,. 98 N. Y. 568. The will directed the executors to invest $9,000 on bond and mort- gage, $200 of the interest received thereon to be paid annually to B., and $200 to L. during life; the surplus of interest the testator gave to a charitable association named,, unless his sister should become a widow ; if this event happened the surplus thereafter he gave to said sister during life. After the death of said three legatees he directed the principal to be paid to said association. Construction : The bequest of the principal was void, as there was an illegal suspen- sion of the power of alienation. Shipman v. Bollins, 98 N. Y. 311, II. FUTURE ESTATES. 449 23. SUSPENSION OF POWER OF ALIENATION OR OP ABSOLUTE OWNERSHIP. From opinion. — "The remaining question relates to the right of the Woman's Hospital Association to the payment of a portion of the interest of a legacy of $9,000 and the payment of the principal after the death of the testator's sister, daughter-in- law and sister-in law. As this bequest was not to be paid over until after the termi- nation of three lives in being at the death of the testator, there was an illegal sus- pension ot the power of alienation beyond two lives, and the bequest, together with the bequest of the income of the fund, is void. 3 R. S., 7th ed., 2256, sees. I, 2 ;, id. 2176. sees. 14, 15. " The provision in the will creating the trust is not capable of being separated intoi different parts so as to render a portion of it valid and another portion void. It is claimed that this legacy is subject to the provisions of sections 18 and 19 of 3 R. 8., 7th ed., 2176, and hence is valid, but we think that these sections are not applicable to a case of this character." W. died leaving his widow and four children him surviving, two of whom were minor.s. By liis will he gave his residuary estate to his executors in trust, the net income to be paid to his widow and children in certain proportions, until all of his " said children, or the youngest survivor of them, shall have attained the age of twenty-one years." The principal then to be divided, one-third thereof to be set apart for, and the net income tliereof to be paid to the widow during life, the re- mainder to be divided amongst his children, the shares of two of them to be paid over to them, the other two shares to be held in trust, and the income to be paid to the beneficiaries during their lives respectively; one of these was a minor. Construction : The division was to take place only after both the minor children should reach their majority ; the suspension therefore, would be for two minorities, the equivalent for two lives ; as to the two shares which then vested absolutely the trust was lawfully limited, so also as to the share to be held in trust for the minor, although there was a further suspen- sion during her life, because the period of her minority and the added period of her life constituted in the whole but a single life, but as to the fourth share, there was, within the statute, a suspension for three lives; atxl so it was unlawful and the trust void, and as to that portion of the (•st;ite, the testator died intestate (Post v. Hover, 33 N. Y. 593); also, as ti) .set aside- the trust in favor of the beneficiary of this share, while sus- taiiimg that in favor of the other three children, would seriously inter- fere with the intention of the testator that the children and their issue should share equally, no portion of the trust attempted to be created should be sustained. Savage v. Burnham, 17 N. Y. 562 ; Knox v. Jones, 47 id. 390. 57 450 X ESTATES IX EXPECTANCT. 'JS. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. Same will: By the will, power was vested in the executors to sell the residuary real estate " if they should deem it expedient for the purpose of making such division * * * or for carrying into effect all or any other of the purposes and trusts." Construction : This power, at least so far as it was vested for the purpose of making the distribution, was dependent upon the validity of the trust and fell ■with it ; and therefore, an action was not maintainable on the part of the executors, to enforce the specific performance of a contract made with them for the purchase of a portion of said real estate, the sale of which was made by them for the purpose of division and distribution. Benedict v. Wehb, 98 K Y. 460. Devise to A. and B., or the survivor, if one died without issue ; upon death of both without issue to children of K, did not unduly suspend power of alienation. Nellis v. liellis, 99 N. Y. 505. By the will of B., and a codicil thereto, his residuary estate was left in trust for the. benefit of his children and grandchildren, the interest thereon to be invested and kept together for ten years after the death of the testator, at which time the estate was directed to be divided; the portions given to his children " to be held for and during their natural lives, respectively ; " remainder to their children. Construction : The trust was in contravention of the statute prohibiting a suspension of the power of alienation for a longer period than two lives in being at the creation of the estate, 1 E. S. 723, sec. 15 ; and as the accumulated fund furnished the only support for the devises subsequently made, the whole scheme of distribution failed, and the title to the residuary real estate upon the death of the testator vested in his heir at law, as in case of intestacy. Hone's Ex'rs v. Van Schaick, 20 Wend. 564. Mice v. Barrett, 102 N. Y. 161. By the will of M., and a codicil, his executors were directed to pay his debts out of his estate as soon "as shall by them be found convenient." To each of his two sons he gave $10,000 to be paid to them in money or property on arriving at the age of thirty years. The testator also made provision for the support of his mother, an aunt and sister, and directed that so much as should be necessary for that purpose should be paid to them out of the property. He gave " the use and income " of all his real and personal property to his wife " during her life," or II. FUTURE ESTATES. 451 S3. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. until after his death she marries, in which case he gave to her $10,000 in lieu of all dower, to be paid to her by his execators, who were ia terms authorized to dispose of the property to pay this sum or the lega- cies given to his sons, and the executors were authorized to change in- vestments of the testator's property or " dispose of all or any part of it," and invest the proceeds as specified. By the codicil the testator nomi- nated and appointed the executors named in the will as his trustees "for the purpose of carrying out any of its provisions." Action to obtain a judicial construction of the will Construction : A valid trust was created to continue during the life or widowhood of the testator's widow. Same will: After the provisions above stated the will contained this clause : " Upon my wife's decease the use and income of all my estate, subject to the above provisions, to my two sons, share and share alike ; and upon the decease of my sons, I give, bequeath and devise to their heirs, should both have heirs, their father's portion only j * * * and in case of one having no heirs, then to the heirs of the other; * * * and if both shall have no heirs then as the law directs." Construction : The provision was void, as it unlawfully suspended the power of alienation for a period beyond two lives ; and the residuary estate re- maining after the death of the testator's widow should be divided as in the case of intestacy. Ward v. Ward, 105 K Y. 68. Oiling, Knox v. Jones, 47 N. Y. 389; Colton v. Fox, 67 id. 348; Smith v. Edwards, 88 id. 92; Bailey v. Bailey, 97 id. 460; distinguishing, Monarque v. Monarque, 80 id. 330; Wells v. "Wells, 88 id. 833. M. died leaving eight children, seven of whom were married and had children. By her will she gave the whole of her residuary estate to her executors, in trust, to pay over the rents, income and profits to her chil- dren equally during their natural lives, and after their decease to their respective wives or husbands during their lives, or until they should remarry. The will then provided : "If any of my children should die without issue, or without leaving a husband or wife him or her surviv- ing, then I give, devise and bequeath his or her share to the survivor or survivors of them. * * * If he or she leaves a husband or wife him or her surviving, then I give, devise and bequeath his or her share 452 X. ESTATES IN EXPECTANCY. 33. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. to the survivor or survivors of mj said children * * * after the decease or remarriage of said husband or wife." The executors were authorized to sell any of the residuary estate and invest the proceeds. Construction : The trust was valid and there was no unlawful suspension of the power of alienation ; the words husband and wife, as used in the will, referred to those living at the death of the testatrix, and so the limita- tion as to each part of the devisable trust ran for two lives in being at its creation. The power of sale conferred upon the executors did not effect an un- due suspension of the power of alienation. Schettler v. Smith, 41 N. Y. 328, distinguished. Same will: The residuary clause also provided tbat, in case any of the testator's children should die leaving issue, "said issue shall represent their parents per stirpes and not per capita, and receive their parents' share " of the rents and profits after the death or remarriage of their surviving parent until they become of age, when their interest shall be given to them. Construction : Upon tlie death of any child, and of the husband or wife of that child who was living at the time of the death of the testatrix, the portion or share of such child vested at once in his or her children, each one of whom taking his or her proportion in fee, subject only to a postpone- ment of possession during his or her minority, and to the execution of the trust upon the rents and profits during that period ; and there wasj therefore, no lawful suspension of the power of alienation ; the fact that the issue of each child were to take per stirpes does not make them joint tenants as the statute fixes how they shall take as between themselves (1 R S. 127, sec. 44), and makes them tenants in common, in the absence of an express provision for a joint tenancy. Van Brunt v. Van Brunt, 111 N. Y. 178. V. died seized and possessed of a large estate, most of it realty. He left four children and a grandchild, daughter of a deceased son. By his will, after directing the payment of debts and funeral expenses, he gave the residue of his estate to his executors in trust, "to set apart " and invest $20,000 and apply the rent and income to the support of said grandchild, or pay the same to her during life; and to invest II. FUTURE ESTATES. 453 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. the residue ia such mauner as a majority of his children may approve, and pay over one-fourth of the income to each of his children "during the term of the respective lives of said children." The will then pro- vided that in case of the death of " any one " of said children the executors should " set apart one undivided fourth " of said residue, or in case of the death of the grandchild should take the sum " so set apart for her benefit" and invest the same for the use of the issue of the decedent " until it or they shall respectively arrive at the age of thirty years, when the whole of the principal so set apart, or such part thereof as they may be respectively entitled to (if the issue shall con- sist of more than one), shall be paid over to it or them, to have and to hold the same to it or them, to its or their sole use and behoof for- ever." In the event of the death of "any one" of the children or of the grandchild without issue, then the will directed that the income "to which he or she would have been entitled to if living shall be divided between his surviving children and the lawful issue of any deceased child," and that "the principal shall form part of the common fund to be divided among the lawful issue " of said children " when- ever such issue shall arrive at the age of thirty years, as above men- tioned." Construction : It was the intent of the testator to create five separate and distinct trusts, each measured by its own terms and terminable by itself at its own date, and so there was no unlawful suspension of the power of alienation ; each of the five primary beneficiaries took an equitable estate in his or her several shares, with a remainder over to his or her issue, which vested, if not at the death of the testator, at least at the death of the life tenant, and so at the termination of one life in being ; the intent of the provision creating substituted remainders in case of the death of one or more of the life tenants without issue, was to add the primary share of the child so dying, in equal parts, to the remain- ing primary shares, and to subject the added propositions to precisely the same limitations as already governed the original shares ; while the result might be to add a second life in being to the period of the sus- pension in each case, the substituted remainder of each secondary share would vest, as did the primary shares, at the death of the parent, and, therefore, at the end of two lives ; in case of the death of one child without issue and then of one other, while upon the death of the first his or her original share would go into the common fund as directed and a part of it in the form of a secondary share would be enjoyed by 454 X ESTATES IN EXPECTANCY. 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. each of the other children duiing his or her life, and vest accordingly, it was not to be presumed, in the absence of express direction, that it ■was the testator's intent that the fractions of that secondary share, when set free by the death of the second child, should again go into the common fund, but that the fraction so added to the life estate of each of the other children would vest in each case on the death of that owner, and so become alienable at the end of two lives in being. Van- derpoel v. Loew, 112 N. Y. 167. NoTB. — Tlie case is one in -whicli the whole income of each share, from the death of the parent to the time of payment, is bequeathed to the remaindermen, a circumstance to which we have invariably given great weight as denoting an intention to vest the remainder .from the time at which the income begins to accrue. Warner v. Durant, 76 N. Y. 133 ; Smith v. Edwards, 88 id. 103 : Bushnell v. Carpenter, 93 id. 370. Whether or not the trust continued up to the time of payment it is not necessary ta consider, for, in either event, the fact would not prevent the vesting of the remainders at the death of the respective parents. Embury v. Sheldon, 68 N. Y, 337 ; Robert v. Corning, 89 id. 335. (181.) The will of McJ. gave his library and the proceeds of his residuary estate " to the mayor of the city of New York, the president of the New York Academy of Medicine, the president of the College of Physicians and Surgeons of the city of New York and their successors, * * * in trust forever," for the purpose of "the establishment and maintenance, perpetuation and improvement" of a free library " without admixture or amalgamation with any other library, coUectioa or institution." Construction : The trust attempted to be created was invalid, as an unlawful sus- pension of the power of alienation ; the gift was to the individuals who should from time to time occupy the official positions named, not to the corporations of which they were officers. Cottman v. Grace, 112 N. Y. 299. Citing, Adams v. Perry, 48 N. Y. 487; Williams v. Williams, Sid. 535; distinguish ing Manice v. Manice, 43 id. 314, 387. Limitation over to such of the issue of a deceased child as " shall be living at the time of such partition" (discretionary partition by execu- tor that could be delayed by him for five years after testator's death) was void, as it would prevent the absolute vesting of the share in the issue of a deceased child at the time of the parent's death, but, as it was consistent with earlier provisions of the same clause and unneces- sary to the testamentary scheme, it could be cut off and other provi- sions preserved. No unlawful suspension of the power of alienation II. rUTURE ESTATES. 455 23 SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. was created by discretionary power to executor to delay partition of estate for five years, there being no equitable conversion. Henderson V. Henderson, 113 N. Y. 1 ; 46 Hun, 509, digested p. 636. In 1853, C, in contemplation of marriage, executed a trust deed of all her estate real and personal, to certain trustees to hold the same during coverture or until her death, if she should " not survive her said coverture," and apply the profits and income " as received, and not by anticipation," to her sole and separate use. In case of her death during coverture the deed provided that the trustees should convey and de- liver all the trust estate remaining to such devisees, and in such shares as she should by will direct, and in default of any such direction unto such person or persons " being her heir or heirs at law as would be en- titled to take the same by descent from her in case the same was land belonging to her, situate in the state of New York." The contemplated marriage took place, and C. died during coverture, leaving two chil- dren, the issue of the marriage, surviving her, also leaving a will, by which she gave all of her estate to the executors in trust to apply the rents and profits to the maintenance of, or pay the same over to, her children in equal parts during their lives, with remainder, on the death of either, of his share, to his heirs and next of kin. In case of the death of either child during minority and without issue, the whole es- tate to be held in trust for the survivor during life, with remainder to his heirs and next of kin. In case of the death of both children during minority and without issue, the whole estate was given absolutely to designated beneficiaries. Construction : The trust deed created a valid trust (1 R. S. 728, sec. 55, sub. 3), which neither settlor alone, nor in conjunction with the trustees, could abrogate ; the power of disposition reserved in the deed was not an ab- solute power equivalent to absolute ownership (1 R. S. 733, sec. 85);. the will, therefore, was not an exercise by the testatrix of the ''jus dis- ponendi" incident of ownership, but simply the execution of a power of appointment, and therefore the question as to the validity of the trusts in the will was to be considered in view of the trust deed and the statute of powers (1 R S. 732, sec. 73, et seq.), and the period dur- ing which the right of alienation might be suspended was to be com- puted " from the time of the creation of the power " (sec. 128), and so considered, the trusts created by the will were in contravention of the statute against perpetuities, as they were limited upon and made possi- ble a suspension of the power of alienation of the real estate and the 456 X ESTATES IN EXPECTANCY. 23. SUSPENSION OF POWER OP ALIENATION OR OP ABSOLUTE OWNERSHIP. absolute ownership of the personal property for three lives, two of them not in being at the time of the creation of the power. The difficulty was not removed by the provision of the married woman's act (sec. 2, chap. 375, Laws of 1849), providing that a trustee, holding any property for a married woman, may convey the same to her, on her written request, accompanied by a certificate of a justice of the supreme court that he has examined the property and made due inquiry as to the capacity of the married woman to manage and conduct the same ; assuming the trust in question was within that act, the dis- ability imposed upon the trustee of an express trust by the general statute was not removed until the prescribed certificate was obtained; but the act did not apply; it was applicable only to nominal trusts, the sole object of which was to secure a married woman in the enjoy- ment of her separate estate. Genet v. Hunt, 113 N. Y. 158. The will of D., and a codicil thereto, gave his residuary estate to his executors in trust, to apply it, or the proceeds of sale, which they were empowered to make, to the establishment and endowment of a charita- ble institution, whose object and the class of persons to be relieved and benefited thereby should be the same as a charitable institution named. Tlie executors were authorized and directed to apply for and obtain from the state legislature " as early as practicable," an act of incorporation of such an institution, and to do this, if possible, within ten years after his decease. In the event that the gift "should be adjudged or proved invahd or its execution be impossible, either by judicial decision or from any other cause," the testator directed that all his residuary estate should be sold and the proceeds equally divided among certain existing religious and charitable corporations named, all of whom had capacity to take. Construction : The primary gift was invalid, as there was contemplated a period measured by years, not by lives, during which there would be no person in existence by whom an absolute estate in possession could be con- veyed, and so there was an unlawful suspension of the power of aliena- tion ; also, the gift was not saved by the fact that an institution, such as contemplated by the testator, could have been incorporated under the general law, as such a corporation was not intended or directed, but one formed under a special charter ; also, if the will should be construed as working an equitable conversion of the real estate into personalty this would not aSEect the question, because considering it as personalty, the prohibition of the statute against a suspension of the absolute owner- ship of personal property for more than two lives would apply. II. FUTURE ESTATES. 457 22. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. But the alternative and substituted gifts were valid; and they took effect and the property vested in the beneficiaries named at the death of the testator. Qruikshank v. Home^ etc., IIS N. Y. 337. Citing, Bascom v. Albertson, 34 N.Y. 584; Leonard v. Burr, 18 id. 107; Dodge v. Pond, 23 id. 69; Beekman v. Bonsor, id. 306; Rose v. Rose, 4 Abb. Ct. App. Dec. 103, distinguishing Shipman v. Rollins, 98 N. Y. 311; Burrill v. Boardman, 43 id. 254; Robert v. Corning, 89 id. 335. B., by will, gave her estate, real and personal, to ber executors, in trust, with power and directions to sell and distribute the proceeds to her brother, and sister S., each one-third ; the income of the other one- third to be paid to her sister A., during the joint lives of herself and her husband; if A. survived her husband she should take the principal of the fund ; if she died before him, leaving lawful issue, the income to be paid for their benefit until the youngest should reach the age of twenty-one years ; and then the principal to be paid to them ; in case of the death of A. without leaving issue, or if all of such issue should die before reaching the age of twenty-one, then the fund to go to the brother and S. At the death of the testatrix A. had no children living; one of the executors died and the survivor, who was the brother of the testatrix, with his sister S., conveyed all their interest in the said premises to A. Shortly after the supreme court discharged the surviving executor as trustee under the will and appointed A. trustee. She, as trustee, con- veyed such premises to J., who re-conveyed to her, and she then, in- dividually, conveyed to the plaintiff. W. objected that the plaintiff's deed did not convey a good title of one-third of the premises. Construction : This claim was untenable. By the will there was an equitable con- version. The provision therein as to the children of A. was void on account of the undue suspension of the absolute ownership of personal property, and the testatrix died intestate as to that part of her estate ; by the conveyance to A. from her brother and "sister, she acquired the entire beneficial interest therein ; as the beneficiaries could officially elect to have a re-conversion into realty and take it as land, rather than the proceeds of it, and as all the parties having any beneficial in- terest had joined in a conveyance of it so that no occasion remained for an exercise of the power of sale, the exercise of that power might be deemed dispensed with and defeated, and therefore the deed con- veyed to the plaintiff a good title. Greenland v. Waddell, 116 K. Y. 234 58 458 X. ESTATES IN EXPECTANCY. 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. By the wi]l of C. he gave his real estate to his widow for life, and after her death to his children, six in number, "share and share alike, * * * during the terms respectively of their natural lives," and up- on the death of a child "the share of such child " was given " to his or her heirs in fee forevet^" The concluding clause of the section was as follows : " My intention being that my widow shall have a life estate in said lands, and after her decease each of my then living children a life estate in the same, and at their decease their children, if any, shall hold the same in fee." Two of the children, a son and daughter, died intes- tate, each leaving children, and thereafter the widow died. Construction : The design of the testator was to give successive life estates first to his ■widow in the whole real estate, then to each of the children in one- sixth part thereof, with the remainder in fee to their heirs ; there was no suspension of the power of alienation for more than two lives in being at the death of the testator; upon such death the plaintiffs became vested in fee as purchasers, by virtue of the remainder so limited to them, with one-sixth of the real estate, subject to the two outstanding life estates ; subject, also, to open and let in afterborn children. Monarque V. Monarque, 80 N. Y. 320 ; Moore v. Littel, 40 Barb. 488 ; 41 N. Y. 66 ; House V. Jackson, 50 id. 161. Upon the death of the father and the widow their fee became absolute, as did also that of the children of the deceased daughter ; and the four living children of the testator at the death of the widow took a life estate in the four-sixths remaining, and on the death of either their heirs at law take a fee absolute in their por- tion. Surdam v. Cornell, 116 N. Y. 305. Where a clause is susceptible of two constructions, one of which will render it valid and the other invalid, the former will be adopted. R died leaving but one child, a married daughter, her surviving, who, at that time, had five children living. By her will, F. devised all her "real and mixed estate" to her executors in trust during the re- spective lives of G., her son-in-law, and of B., her youngest grandchild, with power to lease the real estate, to receive and invest the net income and the accumulations arising therefrom in productive real estate for the benefit of the grandchildren of the testatrix living at her death, and of such others as should thereafter be born of her daughter, " during their respective minorities," with directions to apply to the use of the grandchildren so much of the income as the executors should deem suffi- cient for their education and support during their respective minorities, but no payment to be thus made unless the executors should be satis- II. FUTURE ESTATES. 459 33. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. fied that there was not sufficient income for the purposes specified from the estate of the daughter. The will then provided that on the arrival of the " youngest grandchild " at the age of twenty-one and on the death of Gr. all the real estate of which the testatrix died seized, and such as the executors may have purchased after her death, should be divided equally among her grandchildren then living ; in case of the death of a grandchild leaving lawful issue, sucli issue to take the parent's share. The executors were also directed to pay over to each grandchild, as he or she arrived of age, in case the youngest grandchild and son-in-law were then still living, " a proportionate share of the rents, issues and profits * * * during the lives of said grandchildren and son-in- law." Construction : The words "youngest grandchild," in the limitation upon the trust, referred to B., the youngest grandchild then living ; and so, there was no unlawful suspension of the power of alienation, as the trust expires upon the death of Gr., and the arrival of B. at the age of twenty-one, or his previous death ; the scheme of the testatrix was to create a trust term for as long a period as it could be done for the benefit .uf all her grandchildren, both those born and to be born, and, at the expiration of the term, to provide for a division, although a grandchild born after the death of the testatrix should then be under age ; the provisions as to accumulations were to be construed as providing that any of the grandchildren who came of age befere the termination of the trust term should receive his or her proportionate share, including a share of the real estate purchased by the executors, and which represented a part of the original rents and profits ; the provision as to a distribution of the real estate so purchased, upon termination of the trust, -referred only to so much thereof as may be left after a distribution to the grandchildren previously coming of age ; and, as so construed, the provisions were valid, as is also the provision for the payment of the share of a deceased grandchild in the accumulations to his or her issue, or, failing issue, to the survivors, and the provision prohibiting payments by the executors for the benefit of the grandchildren, unless satisfied that the income from the estate of their mother was insufficient for their support. The will gave to the trustees no power to sell the real estate devised, Boe V. Vingut, 117 N. Y. 204. S. died leaving his wife and six children, three of them minors, him survivino'. By his will he devised and bequeathed all his property to his wife in trust, to use so much of the income and principal as she 460 X. ESTATES IN EXPECTANCY. 23. SUSPENSION OF POWER OE ALIENATION OR OF ABSOLUTE OWNERSHIP. might deem necessary for the support of herself and children until the " youngest child now living shall arrive at the age of twenty-one years or would arrive at that age if living." At that time a division of the' estate among the testator's " legal heirs then living" was directed the same as if the testator had 'died intestate. The widow was appointed executrix with authority to sell the real estate. Construction : The discretion vested in the widow was not personal, but one to be exercised by her as trustee; the will sought to create but one trust, which was not limited upon the life of the widow, but was to continue until the date when the youngest child would, if living, arrive at age; therefore, it was violative of the statute, against perpetuities, and so void ; and the testator's estate passed as if he had died intestate. It seems, where a will contains separate trusts or various limitations of estates, not dependent upon each other or essentially connected, some of which are legal and some illegal, the illegal portions may be stricken out and the other portions permitted to stand in order to carry out the testator's intention. In determining the validity of limitations of estates under the Ee- vised Statutes (1 R. S. 723, sec. 15 ; id. 773, sec. 1), it is not sufficient that the estates attempted to be created may, by the happening of sub- sequent events, be terminated within the prescribed period ; if such events might so happen that such estates might extend beyond such period, they must be so limited that in every possible contingency they will absolutely terminate within such period. Schettler v. Smith, 41 N. Y. 828. While, as the power of sale conferred upon the widow was absolute. It can not be said the power to alienate the real estate was suspended, yet as the proceeds, whether regarded as realty or personalty, are tied Tip by the trust in violation of the statutes, such power did not save the will from condemnation. As the estate vested upon the testator's death, not in his children but in the widow as trustee, and at the termination of the trust what re- mained was to vest in the testator's legal heirs then living, there were no persons in being at his death, assuming the trust to be valid, who could convey an absolute title to the estate. Haynes v. Sherman^ 117 N. Y. 433, rev'g 51 Hun, 585. Certain premises were conveyed to a trustee in trust to pay the rents and profits to M. during the life of her husband, and upon his death to convey to her ; if he survived her, then upon the further trust to con- II. FUTURE ESTATES. 461 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. vey to such person or persons and in such manner as she by will might appoint. In case M. died without having made such a will, the deed declared that the premises should belong to her children and the issue of such as died before her. M. died leaving her husband, and seven children, four sons and three danghters, surviving, and leaving a will, which contained a provision declaring it to be the will of the testatrix, that the said premises should be "held and enjoyed" by her husband and three daughters so long as any two daughters should remain single and unmarried, and for the space of one year after the marriage of the daughter who should be married second. At the expiration of the year the executor and trustee named in the will was authorized and em- powered to sell the premises and divide the proceeds as specified. M.'s husband thereafter died, leaving the three daughters surviving. Construction : The power of sale given by the will to the executor was a general power in trust, which was imperative (1 E. S. 732, sec. 74, et seq.) and so, it operated to suspend the vesting of the fee until the power was execu- ted or the estates terminated. Delafield v. Shipman, 103 N. Y. 463 ; Delaney v. McCormack, 88 id. 174. The estate sought to be given was a life estate in each of the beneficiaries as tenants in common with cross- remainders, determinable upon the marriage of two of the daughters, and in case that contingency did not happen, the estate terminated upon the death of all the life tenatits; as the will was but the execution of the power of appointment given by the trust deed, the period during which the absolute power of alienation was suspended was to be com- puted from the date of the deed (1 R. S. 737, sees. 128, 129), and as so computed the suspension was for more than two lives then in being ; the estate attempted to be created being void, the power so authorized to take effect at its termination was inoperative and void ; and, there- fore, upon the death of M. the absolute fee vested, under the deed, in her children and the issue of such as were dead. Dana v. Murray, 122 N. Y. 604. Distinguishing Henderson v. Henderson, 113 N. Y. 1. Note.— The provisions of section 17 of the statute, to the effect that when a re- mainder shall be limited on more than two successive estates for life, all the life estatcg subsequent to those of the two persons first entitled thereto shall be void, doubtless refers to estates in which the remainder is vested and is not contingent. In such estates the power of alienation is not suspended. Purdy v. Hayt, 93 N. Y. 446-451. (618.) W. devised his residuary estate to his three sons, as trustees, to pay certain pecuniary legacies to the wife and sister and to hold the residu- 462 X ESTATES IN EXPECTANCY. 23. SUSPENSION OF POWER OP ALIENATION OR OF ABSOLUTE OWNERSHIP. ary estate for six years after his decease, and after the payment of the legacies and taxes, and manage the property for the joint benefit of the three sons, with power to sell the realty, but not to partition or divide the same for six years. At the expiration of that period the residuary estate should belong to the trustees, but the trustees, in case of an exi- gency, were authorized to mortgage the real estate to pay the legacies. Construction : The general devise in trust was applicable to the trust created for the testator's wife and sister, which was valid, and this vested the trustees with a requisite and legal estate. The remaining trusts sought to be created were invalid, as was the inhibition against the partition or divis- ion and the restriction upon the power of alienation. The devise vested in the three sons upon the death of the testator an estate in fee, subject to the payment of the legacies, etc. (1 E. S. 728, sec. 47.) Greene v. Greene, 125 N. Y. 506, afE'g 54 Hun, 93. Direction for a trust fund to be perpetually kept by the executors and trustees and successors, for cemetery purposes, was void. Bead v. Wil- liams, 125 K y. 560. Devise to a town in trust to perpetually keep and pay income to the poor was void. Fosdich v. Town of Hempstead, 125 N. Y. 581, digested p. 864 The will of Y. directed his executors to purchase land and to erect thereon a suitable structure for an orphan asylum ; they were also di- rected to procure the passage of an act by the legislature incorporating the asylum, and after the completion of the building, to convey said premises to the corporation, also to assign and transfer to it a sum speci- fied for a permanent fund for the maintenance of the asylum. In a codicil, the testator stated that since making the will, he had purchased certain real estate specified, and he directed his executors to devote this property to the purposes of the asylum. In an action for the construc- tion of the will it appeared that about four months after the death of the testator, the executors procured the passage of an act incorporating the asylum, as directed in the will. Construction : The attempted gift was both executory and contingent, and the de- visee and legatee not being in existence at the time of the death of the testator, the gifts were void as suspending the power of alienation for an indefinite period not measuied by lives in being. Leonard v. Burr, 18 K Y. 107; Oruikshank v. Home for the Friendless, 113 id. 337 II. FUTURE ESTATES. 463 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE' OWNERSHIP. No trust in the executors was created and no trust estate vested in them, but they held the property simply as executors ; the duty of paying over the legacy was merely the duty of an executor and not the execution of a power ; but, assuming that to some extent there was a special author- ity which affected the personal estate and could be treated as a power, and assuming that the asylum was to get its title tp the real estate from the execution of a power of transfer given to the executors, and that the fee of the land and tiie title to the fund descended to the heirs and next of kin, subject to the execution of the power, this would not cure the objection or validate the provision. A perpetuity can not be created by means of a power in trust any more than by a direct limitation. (1. E. S. 737, sees. 128, 129.) Same will.: The will also gave a legacy to an incorporated church, " provided said church shall raise a sum sufficient, with this legacy," to pay off a mortgage and its other debts within two years after the testator's death ; and it was further provided that " in case of failure to do this, then this legacy shall lapse and go into the residuum " of the testator's estate. Construction : The condition was a condition precedent to the vesting of the legacy, and the bequest was invalid. Same will: The will contained a residuary clause by which the residuary estate was given to said asylum '' when incorporated," and to two other insti- tutions named " equally, share and share alike." Following the residu- ary clause was this provision : " In case any of the gifts or devises hereinabove given shall be adjudged void or illegal for any reason, then I give and devise the property mentioned and described in such void and illegal gifts or devises to my executors hereinafter named, in trust, for them to carry out and accomplish the things and objects designed by me in such void and illegal gifts and devises." Construction : The provision quoted was illegal and ineffective as a devise or legacy ; but the testator's meaning was to carry over to his executors only such dispositions as utterly failed, and not those which, failing in one direc- tion, were yet within the scope of the residuary clause ; and so, it was not restrictive of the residuary gift ; the void gifts fell into and became 464 X. ESTATES IK EXPECTANCY. 23. SUSPEJJSION'oF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. part of the residue ; the two beneficiaries named in the residuary clause^ who had power to take, eacli took one-third of the residue thus increased; but, as the gift of the other third to the asylum failed, the third was undisposed of by the will and passed to the heirs and next of kin of the testator. Booth v. Baptist Church, 126 K Y. 215. When, by the terms of a testamentary gift in trust of property, its ownership must be necessarily uncertain for a period of time not meas- ured by lives, the statute against perpetuities intervenes and condemns it As to whether a gift may be sustained where the delay is merely in- cidental and caused by the formalities and details of incorporation of the body to take, and its creation is possible and certain to be effected under a general law in accordance with the testator's direction, qucere. It seems, that the non-existence of a corporate body, at the time of a testator's death, of an institution intended by him as an object of his bounty, will not alone defeat a testamentary gift, and an executory be- quest to the use of an institution directed to be incorporated within the period allowed for the vesting of future estates, may be upheld as valid. Burrili v. Boardman, 43 N. Y". 254; Shipman v. Rollins, 98 id. 311;. Cruikshank v. Home of the Friendless, 113 id. 387 ; Bascomb v. Albert- son, 34 id. 584. Wliere, however, no such limit is fixed to the time of the incorpora- tion, but it is left dependent upon the will of the legislature, the gift is void. W., by his will, gave his residuary estate to his executors, in trust, to create and endow a benevolent institution, and he directed them,, upon his decease, to apply to the legislature for an act incorporating it The will defined the purposes and object for which said institution should be created and intrusted with the property which the executors were directed to convey to it upon its incorporation ; the executors were appointed its "sole and permanent trustees," and it was provided that "they be inserted in any act of incorporation as such trustees," and that they should fill vacancies occurring in their body " so long as such institute shall exist as a corporate body, or otherwise." By a codicil W. directed '' that the devise and bequest * * * with re- gard to the founding " of such institute " be changed and the provi- sions thus made therefor be applied to the founding of a musical insti- tution ;" he directed " that appropriate legislation and means be adopted to perfect the incorporation and general plan of the institution as near or similar to the plan or method given" in the will with regard to the formation of the benevolent institute. II. FUTURE ESTATES. 465 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. Construction : The only effect of the codicil was to change the name of the bene- ficiary mentioned in the residuary clause of the will and to apply it to the same provisions as to incorporation, and plan of corporate manage- ment ; and the provisions of the will and codicil were void, as they contravened the statutes, limiting the power of alienation. ■ Same will : It was claimed that the institution provided for by the codicil could be incorporated under the general act of 1875 (ch. 176, Laws of 1875), passed before the codicil was executed ; this requires that the corpora- tion to be created must have not less than seven trustees. The will ap- pointed three executors ; the number was increased by the codicil to four. Construction : The restrictions of said act make it inappropriate to the testator's de- sign ; even in case said act might be modified by the legislature so as to permit of the incorporation desired by the testator, a delay would en- sue, dependent upon the will of the legislature, not upon lives, and so the objection was not obviated. People v. Simonson, 126 N. Y. 299. Citing Cruikshank v. Home, etc., 113 N. Y. 337. Note. — "In the present case it is contended that, as at the time of testator's death, a general law had been enacted and was in existence, authorizing the kind of corpora- tion mentioned by tlie testator, there was no necessity of applying to the legislature for a charter. The law referred to is contained in chapter 176 of the Laws of 1875, and was passed by the legislature before the making of the codicil, and undoubtedly comprehended the several objects designed to be promoted by the testator by the use of his residuary estate. If the bequest were to a corporation to be created by the trustees of the will, and which could be at once incorporated and organized under that general law, a new and interesting question would be presented. It might very well te said in such a case, that as it would be the duty of the trustees of the will to act at once, in procuring the incorporation, the delay in the incorporation would be but a mere incident to a certain result. Robert v. Corning, 89 N, Y. 225 ; Cruikshank V. Home of the Friendless, 113 N. Y. 337. The argument of appellant's counsel upon this subject would find some apparent support from the reasoning in the opinions in the cases of Burrill v. Boardman and Cruikshank v. Home of the Friendless. " (308.) "Where a trust is created by which the possession of personal prop- erty and the legal estate therein is vested in trustees during the continu- ance of the trust, the absolute ownership of such property is sus- pended, and to validate the trust, the duration of such suspension must be limited to two lives in being; not to a term of years, however short. The will of C, as modified by a codicil thereto, after certain specified bequests, directed that his executrices should take possession of the 59 466 X. ESTATES IlSr EXPECTANCY. 23. SUSPENSION OF POWER OF ALIENATION OB OF ABSOLUTE OWNERSHIP. residuary estate, real and personal, and convert the real estate into money at such time as they might deem proper, during a period not exceeding ten years after the death of the testator's widow ; that dur- ing the lifetime of the widow and until the real estate should be sold, the executrices, two daughters of the testator, should collect the income of the estate and apply the same to the use of the widow and to their own use, or the survivor of them, and after her death, if the real estate was not then sold, to their own use or the survivor of them until such sale ; that immediately thereafter the estate should be divided into four equal shares, one of which each of the executrices should receive personally, the remaining two shares to be retained by them in trust, the income of one share to be paid to U. during her life, at her death the principal to go to her heirs, the income of the other share to be paid to B. during her life, at her death the principal to go to her heirs. Action brought by U. and B., who were also daughters of the testator, to procure the partition of the real estate of which 0. died seized, or if partition could not be had, to obtain a construction of the will and codicil. Construction : The real estate was on the death of the testator converted into per- sonalty, the legal title to which was vested in the executrices in trust; during the continuance of the trust the absolute ownership was sus- pended ; as the trust attempted to be created for the benefit of the testator's daughters was not limited by lives in being, but upon the life of the widow and an indefinite period thereafter, which might be of ten years' duration, it was violative of the Statute of Perpetuities, and so, void. As the trust created for the life of the widow was separable from the others, their invalidity did not aflfect it, and the trust for her bene- fit should be permitted to stand ; and except as to the estate created for her life, the testator died intestate. Undervjood v. Curtis, 127 N. Y. 523. Attempt to create a trust that suspended the absolute power of dis- position of proceeds of sale, for more than two lives in being, was void. Fowler v. IngersoU, 127 N. Y. 472, digested p. 359. A valid devise or bequest may be limited to a corporation to be cre- ated after the death of the testator, provided it is to be and is called into being within the time allowed for the vesting of future estates, Tilden v. Green, 130 N. Y. 29. Perry on Trusts, 373. sec. 736; Inglis v. Trustees of the Sailor's Snug Harbour, 3 Peters, 99; Burrill v. Boardman, 43 N. Y. 254. II. FUTURE ESTATEa 467 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. A testator may, ia the creatioa of a trust, suspend the absolute power of alienation of the trust estate for a period of two selected lives then in being, and with this limitation, during that period, he may provide for the distribution of the annual income among as many different persons and for as many successive lives as he sees fit. So, also, a testator may limit a trust estate for an arbitrary period of time, provided a termination at an earlier period is called for by the expiration of two lives in being at the creation of the trust. Where the testator provides for two contingencies, it is not essential to the validity of the trust that the two lives which govern the duration of the trust in one contingency should be the same as those which govern it in the other. The statute in any case is satisfied if the trust by no possibility and in no contingency can endure longer than during the existence of two lives in being when it was created. Income and principal given in equal shares out of one fund kept in solido for more convenience of investment, may be severed and inde- pendent trusts created for the several beneficiaries, and thus the shares and interests will be severed, even though the fund remain undivided. Vanderpoel V. Loew, 112 K Y. 167,- Colton v. Fox, 67 id. 348; Ward V. Ward, 105 id. 70. The will of C. gave his residuary estate to trustees in trust, to pay one-third of the income thereof to his wife ; to pay to the guardian of his infant son J. during minority for his support, etc., a yearly sum not exceeding an amount specified ; to J., after his arrival of age, a specified sum yearly until his arrival at the age of twenty-five ; after such pay- ments, the remainder of one-third of the net yearly income to -be held and invested by the trustees and the accumulations to be paid to J. on his reaching the age of twenty-five, and thereafter during the lifetime of the testator's wife to pay to J. one-third of the whole net income ; to pay the other third to the testator's daughter K. during the life of the wife. Upon the death of the wife, in case . the two children survived her, the trustees were directed to pay to K., during her life, one-half the net income, the other half to be paid to J. in case he had then reached the age of twenty-five, if he had not, then such moiety to be subject to the previous directions as to the disposition of his one-third until he reached that age. When J. arrived at the age of thirty, in case the testator's wife died before that time, and if not, upon her decease there- after, the trustees were directed to pay over to him one-half of the trust estate with the accumulations thereof as provided for. In case J. did 468 X ESTATES IN ESPECTAXCY. 23. SUSPENSION OF POWER OF ALIENATION OB OF ABSOLUTE OWNERSHIP. not survive the wife, or surviving her did not reacli the age of thirty, upon his death and that of the wife it was provided that his share should pass as appointed by his last will, or in default thereof to his lawful issue him surviving. Upon the death of K., in case she sur- vived the wife, if not, upon the decease of the latter, one-half of the trust estate to pass as appointed by K.'s will or in default thereof to her lawful issue her surviving. In case of the death of J. or K. during the lifetime of the wife, then the trustees were directed to pay one-half of the net income to the wife and the other to the survivor of the chil- dren, to be paid in the same manner as prescribed in regard to the one- third. Upon the death of the wife, in case K. died before that time without lawful issue her surviving, the whole estate to be paid over to J., if then of the age of thirty. If J. died without lawful issue before the death of the wife, upon her death the whole net income was directed to be paid to K. during life, and upon her death the whole estate to pass as provided for in reference to her one-half. In the event of the death of both the children before the wife, intestate and without lawful issue, then upon her death the will directed the whole estate should pass to the testator's brother. Construction : The will created a trust estate for the life of the testator's wife, the income to be divided into three parts, one to be paid as provided to each of the three beneficiaries ; upon the death of the wife the estate to be divided into two independent trusts, one for the benefit of each of the children, each limited by two lives, that of the wife and of the beneficiary. Everitt v. Everitt, 29 N. Y. 40 ; Stevenson v. Lesley, 70 id. 512-516 ; Monarque v. Monarque, 80 id. 324 ; Vanclerpoel v. Loew, 112 id. 167. In regard to J. there were two contingencies provided for, one that of his surviving his mother, the other that of his dying before her ; in the former case the trust in his favor is bounded by her life and his own or his arrival at the age of thirty ; in the latter case the trust is measured by the life of the mother and of K., so that in any case there was no suspension of the power of alienation for more than two live? in being; while the will did not in terms provide for the event of the death of J. intestate and without issue, after his mother and before his arrival at the age of thirty, the intent was that his inter- est in the one-half of the trust estate should pass to and vest in his heirs and next of kin freed from the trust; and, therefore, aside from the provision as to the accumulation of the surplus income in favor of J., the will was valid ; this provision was void, and J., as presumptively II. FUTURE ESTATES. 469 23. SUSPENSION OF POWER OP ALIENATION OR OF ABSOLUTE OWNERSHIP. entitled to the next eventual estate, was entitled to this surplus. Scliermerhorn v. Gotting, 131 N. Y. 48. Distinguishing, Colton v. Fox, 67 N. Y. 848; Ward v. Ward, 105 id. 68. Note 1. — A limitation of a trust estate for an arbitrary period of time, such as fifty years, is valid, provided a termination at an earlier period is called for by the expira- tion of two lives in being at the creation of the trust. If provision be made for such termination, the income of the estate may in the meantime be divided among any number of successive lives. Phelps v. Pond, 33 N. Y. 69. (58.) Note 2. — This gift of the immediate income to the son or to his guardian for his benefit, indicates an intention to vest in the son the corpus from which such income is derived. Robert v. Corning, 89 N. Y. 225, 241. (59.) Will of resident of Rhode Island creating trust in personal property to be administered in New York for benefit of residents therein, in contravention of statute of this state against perpetuities was governed by law of the domicil, viz., Rhode Island. See Conflict of Laws ; Cross v. United States Trust Company, 131 K Y. 330, digested p. 1327. A new trustee will not be appointed in place of one deceased where it clearly appears that the trust or power in trust is void. B., by his will, gave his wife one-third of all his real and personal estate and divided the residue among his eight children and one grand- son, and provided that their shares should be paid to them within one year after the youngest child should become of age; five of the children were at the time of the testator's death minors. The will gave to the wife, as executrix, a discretionary power of sale, but expressly directed that it should not be exercised until the majority of his young- est child. The widow qualified, and after having acted as executrix and trustee under the will for several years died. Construction : The power in trust was void, and an application for the appointment of a new trustee was properly denied. While a valid testamentary trust may be relieved from the peril of some unlawful incident or limitation by disregarding it, this can only be done where the vicious provision is clearly separable from the valid devise or trust and may be disregarded without maiming the general frame of the will or the testator's substantial and dominant purpose. Matter of Will of Butterfield, 133 N. Y. 473, aGE'g 59 Hun, 153. The provision of the Revised Statutes (1 R. S. 773, sec. 1), prohibit- ing the suspension by will of the power of alienation for a longer period than two lives in being at the death of the testator, does not, nor do the statutory provisions invalidating testamentary gifts to certain corpora- tions, unless made a certain time before the testator's death, where he 470 X ESTATES IN EXPECTANCY. 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. has a wife, children or parents, interdict bequests within the prohibition, made in another country to take effect here, and such bequests, if valid at the domicil of the testator, are valid here. Those statutory provis- ions apply to domestic wills which by their provisions are to be exe- cuted here. Dammert v. Osborn, 140 N. Y. 30, dig ested p. 1331. motion for reargument denied, 141 id. 564. Citing Hollis v. Drew Theo. Seminary, 95 N. Y. 171 ; Cross v. U. S. Trust Co., 131 id. 330 ; Hope v. Brewer, 136 id. 126. H. died, leaving seven children him surviving, of whom defendant M. is the last survivor ; none of th§m ever married except the father of the plaintiff; at the death of H. his children became tenants of a farm which they mutually agreed to own together as joint tenants, and upon the death of either the farm should pass by devise or descent to the survivors ; they all lived together until the marriage of plaintiff's father, who thereafter moved away, prior to which time they had made valu- able improvements; after the birth of plaintiff, at a family meeting of all said children, a mutual agreement was entered into, reafhrm- ing the prior agreement, and further agreeing that upon the death of the last survivor, the farm should, by devise or descent, pass to plain- tiff ; this agreement was kept and performed until, by the death of the others, the title became vested in defendant M., against whose disposi- tion of the property through the undue influence of other defendants the action was aimed. The absolute power of alienation is not suspended because there were at all times persons in being who could convey an absolute fee in possession. All the brothers and sisters uniting with the plaintiff could at any time have conveyed a perfect indefeasible title to the real estate. Murphy v. Whitney, 140 K Y. 541, aff'g 69 Hun, 573. The will of B. gave his residuary estate to his executors in trust to divide the net income equally between a daughter-in-law and two cous- ins of the testator, " the survivor or survivors of them during their nat- ural lives." In case the cousins died before the daughter-in-law "the corpus of said trust estate '' was given to the latter; if she died before the cousins, it was given to the person or persons she should designate by will. Action for the construction of the will. Construction : These provisions did not violate the statute against perpetuities, and were valid, as in no event could the estate be tied up longer than during the lives of the two cousins. Bird v. Pickford, 141 N. Y. 18, rev'g 71 Hun, 142. II. FUTURE ESTATES. 471 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. Note. — It is not sufflcient to condenm these clauses that the absolute power of ownership and of alienation may be suspended for three lives or for many lives, pro- vided that such suspension be bounded by two designated lives in being at the death of the testator. Crooke v. County of Kings, 97 N. Y. 421 ; Bailey v. Bailey, id. 460. (30-21.) The will of M. contained this clause, " if, after all the legacies are paid in full, there should be anything left of my estate, the same to be divided and paid to the Methodist Episcopal churches in the ninth ward of the city of New York, according to the number of members, to buy coal for the poor of said churches." It was conceded that the churches designated were duly incorporated, with power to take by bequest for the relief of the poor. Construction : The testator contemplated no trust, but simply made a bequest to the churches, and the same was valid. Bird v. Mer/dee, 144 N. Y. 544, rev'g 75 Hun, 74. Distinguishing Fosdick v. Town of Hempstead, 135 N. Y. 581. The law of Maryland allows the suspension of the power of aliena- tion of an estate during lives in being at the creation of the estate, and twenty-one years and a fraction beyond, in case of minority. Testing the suspension in this case by the Maryland rule, the final vesting of the estate was not unlawfully postponed. Thomas v. Gregg, 76 Md. 169, distinguished. Hillen v. Iselin, 144 N. Y. 365 ; 76 Hun, 444. The absolute ownership and power of disposition of a testator's real estate is not suspended because the executor, to whom the will gi^^es an imperative power of sale, may require a period of time not measured by lives to execute the power and convert the real estate into personalty. Such a suspension results only in a case where there are no persons in being by whom an absolute estate in possession may be conveyed. Eobert v. Corning, 89 K Y. 228 ; Hope v. Brewer, 136 id. 126. The will of W., dying in 1890, directed his executor to sell certain real estate, during the spring months of 1891, at public auction to the highest bidder and to invest the proceeds for the benefit of certain of the legatees named in the will. Upon settlement of the accounts of the executor it was claimed that said provision violates the statute against perpetuities, as by fixing a time of sale it suspended the power of alien- ation for a period not measured by lives. Construction : Untenable ; the direction as to the time was advisory, intended to 472 X. ESTATES IN EXPECTANCY. 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. facilitate the sale, not to restrain or limit the power of absolute dispo- sition. Deegan v. Wade, 144 N. Y. 573, aff'g 75 Hun, 39. The holographic will of S. contained a clause which, after a bequest to a son of the testator of certain shares of stock, proceeded as follows : " To be held in trust by my executors ten years from and after my de- cease, then to be delivered and transferred to them; if deceased, do and continue the same to his son William, now in his eighth year ; if both are deceased before the ten years have expired, then transfer and deliver the said shares to ray daughters." The clause then named two daughters and provided that if either was deceased her portion should be transferred to the survivor, and in case of the death of both, to a daughter-in-law named or her heirs. Construction : There was no unlawful suspension of the power of alienation; the suspension was not for an arbitrary and fixed period, nor was the trust so limited, but both inevitably terminated upon the expiration of the two named lives, and could only run for the ten years on condition that one or both of the selected lives continue so long. Moniignani v. Blade, 145 N. Y. Ill, modifying 74 Hun, 297. The testator gave to M., a daughter, a house and lot with the furni- ture therein " for her occupancy and use," the same "to be held in trust by my executors seven years from and after my decease." also certain shares of stock, the dividends to be collected and paid to the daughter. At the expiration of the seven years it was provided that "the foregoing bequests shall be transferred and delivered to " M. If M. should die before the expiration of the seven years it was provided that " these bequests shall be delivered to or disposed of " as a daughter and son of the testator named " shall request and direct," the proceeds to be paid to three persons named. Construction : The trust was valid, as it only ran for one life or the shorter period of seven years within that life; although the testator described his dis- position as "bequests" it covered the real as well as the personal prop- erty ; the provision giving some power or authority to the son and daughter could not be construed as a power of appointment or as con- ferring upon them any estate, but simply made them arbitrators in case of any disagreement between the three beneficiaries as to an actual division or a sale and division of tlie proceeds. Montignani v. Blade, 145 K Y. Ill, modifying 74 Hun, 297. II. FUTURE ESTATES. 473 S3. SUSPENSION OP POWER OF ALIENATION OR OP ABSOLUTE OWNERSHIP. By will certain shares of stock were given to a daughter-in-law of the testator to be held " in trust seven years" from his death for the benefit of the daughter-in-law and her daughter, and then to be transferred and delivered to the latter. In case of the death of the grandchild before the expiration of the seven years, it was provided that " this bequest to her shall be given and transferred to her mother ; " if both die, then " to the heirs" of a son of the testator. Construction : The trust was measured by two lives in being at its creation, and so was valid ; by the provision for the ultimate vesting of the stock in the "heirs" of the testator's son, those who would be next of kin if he were dead were intended. Montignani v. Blade, 145 N. Y. Ill, modi- fying 74 Hun, 297. A suspension of the power of alienation as to real estate and of abso- lute ownership as to personal property occurs only when there are no persons in being by whom an absolute estate in possession can be con- veyed. A contingency attached to a legacy which will render it void as an unlawful suspension of the power of alienation, must be one that relates to the pferson who shall take, and who may not come into being or gain capacity to take and hold within the two prescribed lives, whereby it may happen that there is no one who can alienate within that. tima The will of S. contained a legacy payable to C. in case he paid dur- ing the testator's lifetime all assessments, dues and premiums upon any insurance on his life, taken for the benefit of, and payable to A., his adopted son, and in case such insurance or some part thereof should be actually paid to A one year from the testator's death. The testator's residuary estate he gave to his executors in trust to pay the income thereof to A. until he arrived at the age of thirty-five years, and upon his arrival at such age to pay the principal of said rest, residue and re- mainder, over to the said A. Construction : The bequest to C-, although future and contingent, vested as a right upon the testator's death, and so was alienable by him; while the trust covered the entire residue except the contingent estate bequeatlied to C, and there was a suspension of the power of alienation during the- existence of the trust, the suspension was merely for tiie life of A. or for a shorter period ; and, therefore, there v/as no unlawful suspension 60 474 X. ESTATES IN EXPECTANCY. 33. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. of the power of alienation, and the bequest was valid. Sawyer v. Cubby, 146 N. Y. 192, rev'g 73 Hun, 298. Note 1. — " The statutory test of what constitutes a suspension of the power of alien- ation as to real estate, and of absolute ownership as to personal property, is that it occurs only when there are no persons in being by whom an absolute estate in posses- sion can be conveyed. Murphy v. Whitney, 140 N. Y. 545. " (196.) Note 3. — " The cases cited on behalf of the respondents do not hold any different doctrine. In one there was a legacy to a corporation not existent or in being, and to a church upon a special trust to pay off a mortgage where the legacy was necessarily made inalienable in the hands of the legatee. Booth v. Baptist Church, 136 N. Y. 215. In another the corporate legatee had not come into being and the executors held in trust. Rose v. Rose, 4 Abb. Ct. App. Dec. 108. In a third there was, first, a trust and then a devise to those who at the death of the widow should prove to be tes- tator's living heirs. Haynes v. Sherman, 117 N, Y. 433. By these cases it is estab- lished that a contingency which results in there being no person in existence or capa- ble of taking or of alienating who is yet the intended legatee does not work a suspen- sion of ownership since there is no one to give a complete title. That is not the case here. The contingency is an event and not dependent upon the existence or capacity of a person. " (199.) The test of alienability of real or personal property is that there are persons in being who can give a perfect title (1 R. S. 723, sec. 14 ; 773, sec. 2) ; and where, through there being living parties who have unitedly the entire right of ownership, there is a present right to dispose of the whole interest, even if its exercise depends upon the consent of many persons, there is no unlawful suspension of the power of ahenation. An agreement in writing between the promoters of a corporate enter- prise owning ninety-nine one-hutidredths of its capital stock as tenants in common, to partition their holdings after first placing in the treasury one-fifth of all the stock, to be sold to provide working capital, and, in -order to prevent a sacrifice thereof, providing for the deposit of their individual stock certificates with a trust company, each agreeing that he would not withdraw the same for six months except by mutual consent, unless enough treasury stock should be sooner sold to realize a sum named, in which event any one could withdraw his certificate on five days' notice to the others, does not constitute an unlawful suspension of the power of alienation, and is not against public policy as being in restraint of trade. Williams v. Montgomery, 148 N. Y. 519. From opinion : "No restriction was placed on the power of any stockholder to seU, but he could not deliver the certificates for six months, except in either of the contingencies named. There was no suspension of absolute ownership, because the statute expressly declares that ' the power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed.' (1 R. 8. 733, sec. 14.) While this applies primarily to real estate, by a subsequent chapter it is made applicable to personal property also. (1 R. S. 773, sec. 3.) The test of alien- ability of real or personal property is that there are persons in being who can give a II. FUTURE ESTATES. 475 29. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. perfect title. Genet v. Hunt, 113 N. Y. 158-172; Nellis v. Nellis, 99 id. 505-516; Robert V. Corning, 89 id. 235, 235 ; Gott v. Cook, 7 Paige, 591 ; affirmed, 24 Wend. 641 ; Bolles on Suspension, 3. Wliere there are living parties wlio have unitedly the entire right of ownerihip, the statute has uo application. Norris v. Beyea, 13 N. Y. 373, 389. The ownership is absolute wliether the power to sell resides in one in- dividual or in several. If there is a present right to dispose of the entire interest, even if its exercise depends upon the consent of many persons, there is no unlawful suspension of the power of alienation. The ownership, although divided, continues absolute. " The agreement in question, therefore, which expressly reserved the right to sell by mutual consent, did not violate the statute, because there was no time, when an abso- lute title to the stock, or any part of it, could not have been transferred by the joint action of the four parties to the contract." A will of real and personal property, attacked on the ground that it violated the statutory limitation upon the suspension of the power of alienation by creating a trust for a greater period than two lives in being at the death of the testator, held to be saved from such objection by provisions therein directing the division of the estate, for which three life beneficiaries were designated, into two distinct and separate funds and shares, one share for the benefit of one of the life beneficiaries and the other for the benefit of the two other beneficiaries, and disclos- ing an intention to create two valid and distinct corresponding trusts, the first for one life and the other for two lives in being. A testamentary trust for a period in excess of the statutory limitation upon the suspension of the power of alienation is not saved from the condemnation of the statute by the fact that the trustee is empowered to sell the trust property and to invest and re-invest the proceeds, where, notwithstanding the power of sale and its incidents, the estate remains fettered by the trust. Allen v. Allen, 149 K Y. 280, aff'g 63 Hun, 635. The testator devised property, both real and personal, to trustees, to receive the rents, etc., thereof, divided the same into fourteen equal parts, and directed that the rents, etc. , of each part should be paid over to different persons named in the will, the trust, as to each part, to terminate upon the expiration of two lives in being at the time of the testator's death. The fact that the duo execution of the trust would require some of the parts to remain in the hands of the trustees after the trust had terminated, and the ultimate right vested, as to them, did not invalidate the trust by creating an unlaw- ful suspense of the power of alienation. Meserole v. Meserole, 1 Hun, 66. A testator directed that his executors should receive and collect the rents, issues and profits of his estate, and, after paying therefrom certain legacies and annuities, pay over the remainder to his widow for and during her natural life. Upon her death the executor was directed to pay out of the rents, etc. , of the real estate, and out of the per- sonal estate and the proceeds of the sale of the real estate to a son and daughter of the testator $1,000 to each, in two annual payments; the first to be made at the expiration of one year from the death of the wife, and the same sum to a grandchild if he should arrive at lawful age (though it was not in any event to be paid over to him until one year after the wife's death), and an annuity was given to said grandchild during his 476 X ESTATES IN EXPECTANCY. 33. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. minority: that "after the payment and discharge" of these legacies, the real and personal estate, "as speedily as the same can be converted or divided," should be di- vided between the son, daughter, and grandchild. Construction: Tlie trust estate terminated upon the death of the wife, at which time the legacies to the children and grandchild vested in them, and from and after that time they were entitled to the possession and enjoyment, as tenants in common, of the undivided prop- erty, subject to the power of conversion, division and sale, and there was, therefore no unlawful suspension of the power of alienation. Multeson v. Armstrong, 11 Hun, 345. Defendant's testator devised his real estate to his wife so long as she remained his widow; upon her death, he directed his trustees to sell the real estate and invest and reinvest the proceeds thereof and the interest thereon, "except so much thereof as may be necessary for the support of my children until they reach the age of twenty- one years, or of my said daughters until they shall respectively marry." And upon the youngest of his four daughters, Mary A., Clara, Florence N. and Louisa, attain- ing the age of twenty-one years, he directed his estate to be divided among the chil- dren, the shares of the daughters to be then paid over; the shares of the sons to con- tinue to be held in trust until the youngest son arrived at the age of twenty-one and then be paid over to them. Construction: The trust was valid, and the power of alienation was not illegally suspended. The trust was not to continue until each and all of the children arrived at the age of twenty-one years, nor until the youngest son and youngest daughter each attained their majority, but only until the majority of the youngest child. Even if the power of alienation were suspended during the lives of the widow, the youngest of the daughters and the youngest of the sons, still the trust for the life of the widow would be sustained. James v. Beasley, 14 Hun, 530. A testator gave one-third of his estate to a son for life, and directed that on the son's decease such third should be added to the other two-thirds of which the interest was directed to be paid to the testator's grandchildren, share and share alike, and further provided by his will, "and then from and after the decease of my grandchil- dren, I direct my executor to pay the amount remaining after paying all expenses of settlement and disbursements thereof to each of my great-grandchildren, share and share alike." Construction: The gift to the grandchildren was to each of them in severalty and not to them jointly, and on the death of each grandchild his share would pass directly to the great- grandchildren as absolute owners. Therefore, as to the one-third of the estate given to James for life, the power of alienation was not suspended for more than two lives in being, and as to the remaining two thirds of the estate for only one life. The will provided that in case certain of the grandchildren neglected to support their parents, " the said legacy in payment to them to be stopped and the sild pay- ment shall revert to the general fund for the benefit of my other grandchildren and great grandchildren as hereinbefore mentioned." Construction: The effect of a failure on the part of the grandchildren to support their parents, would be to work a forfeiture of the remainder of their life estates and transfer sucll 11. FUTURE ESTATES. 477 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP, life estates to the other grandchildren, who -svould hold such forfeited estates only during the lives of the grandchildren by whom they had been forfeited, and on the death of the latter such interests would pass to the great-grandchildren. Bingham v. Jones, 25 Hun, 6. A testator gave "to the town of Columbia, in its corporate capacity, the sum of one thousand dollars to be forever Invested by the town board or officers of said town having charge of the financial matters of said town from time to time, and at all times hereafter on real estate worth at least double the amount loaned thereon, the interest to be regularly collected and applied annually by the town officers of said town towards the support of the poor who are supported by the said town, the inten- tion that the said interest shall form part of the poor fund of said town." The bequest was void as creating an unlawful suspension of the absolute owner- ship of personal property. Chapter 317 of L. 1866, providing for the election of three trustees for any lodge or chapter of Free and Accepted Masons, and authorizing them to take, hold and con- vey real and personal property, relieves them from the effect of the general statutes of the state against perpetuities.' A testator, by his will, gave and bequeathed to the school district in which he re- sided, " the sum of three hundred dollars, to be forever loaned by the town officers mentioned in item sixth, and the interest tliereon to be annually paid by such officers to the trustees of said school district, to be by them applied towards the support of the school in said district." By the sixth item of his will he directed the money to be invested by the town board or officers having charge of its financial matters. The bequest was valid under section 16 of chapter 555 of L. 1864. It was the intention of the testator to authorize the supervisor of the town to invest the fund and pay over the income to the school district, and that the executor should pay over the legacy to him. Iseman v. Mj/res, 26 Hun, 651. Citing, Kennedy v. Town of Palmer, 1 T. & C. 581 ; Coggshall v. Pelton, 7 Johns. Ch. 29 i ; question in King v. WoodhuU, 3 Edw. Ch, 92, both of which last cases were overruled in Bascomb v. Albertson, 84 N. Y. 584. A testator gave and bequeathed to his executors bonds and stocks amounting at their par value to the sum of $150,000, to be distributed and applied to such charita- ble and educational uses, and in such manner as should be specified and directed in a codicil to his will, which he was not then prepared to make. In case no such codicil was made, then, upon trust, to distribute the said sum to and among such incorpo- rated societies, organized under the laws of the state of New York or the state of Maryland, having lawful authority to receive and hold funds, upon permanent trusts, ■ for charitable or educational uses, as his executors, the survivors or survivor of them, should select, and in such several sums as they should determine. The distri- bution was to be made and completed in the lifetime of the longest liver of two per- sons named in the will, and, at any rate, before the expiration of three years from the testator's decease. The testator died without having made the codicil referred to in the will, and thereafter stocks and bonds of the par value of $150,000 were trans- ferred to the executors. The direction authorizing them to distribute the fund among such of the corporations named as they should select, was valid. All interest re- ceived upon the stocks and bonds after the expiration of one year from the death of the testator should be included in and distributed with them. Prichard v. Thompson, 29 Hun, 295, rev'd 95 N. Y. 76. A testator devised all his estate to his executors in trust, giving them a power of > See Chaplin's Susp. 357. 478 X ESTATES IN EXPECTANCY. 23, SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. sale and directing them to invest all the property in securities, and to pay the income in such sums as they deemed proper to his six children until they, respectively, reached majority, for their maintenance ami education. He further directed tiiat the interest of each of the four sons should cease at majority, both in the income and in the principal. The will further provided that when the youngest son, named Daniel, reached majority, the income should be equally divided between the two daughters during their lives ; that if either died leaving issue, one-half of the whole estate should be disposed of as the daughter dying should direct by will ; that if one or both of the daughters died without issue, the one-half or the whole estate, as the case might be, should be equally divided between the sons. At the time of tlie tes- tator's death all the children were living, and only one, a son, had reached majority. Action brought to obtain a construction of the will. Construction : There was no separate trust for each child, nor any definite share of the income allotted to it, but all the property was to be held in one trust, each child to receive so much income as the trustee thought proper. Whether the estate was to be regarded as real or personal property, and, assuming that the word " minority" was equivalent to "life," the trust was void, because a final distribution was made dependent upon more than two lives in being at the death of the testator. Walsh v. Waldron, 63 Hun, 315, aff'd 185 N. Y. 650. Testator, directed that his estate should be divided into two parts, one for each child who survived him, and the issue of any deceased child to have one share, and directed his executors to pay over the shares when the legatees reached majority. By a codicil to his will he gave his executors power to postpone, for any period not illegal, the payment to any legatee of the principal of his share after he had reached majority, provided the executors deemed such postponement best for the legatee, and that, in the meantime, the executors should keep the postponed share invested and pay the legatee the income. He appointed his executors guardians of his minor chil- dren. Construction : The provisions of the codicil did not suspend the power of alienation during the lifetime of the survivor of the three minors. Its effect was to suspend that power as to each individual share only during the life of its beneficiary. Fooie v. Bruggerhof, 66 Hun, 406. A will contained the following provisions: ' '(1) I give and bequeath unto my beloved wife all the real and personal property I may die seized and possessed of, nevertheless, until my youngest child may become the age of majority. "(2) I hereby direct that my executors hereinafter mentioned shall, at the time when any of my child or children shall marry, to give to such child or children the sum of $5,000; and I direct that when, in the discretion of my executors hereinafter named, they deemed it is necessary, they shall give to any such child or children the sum of $5,000, but when the estate shall be divided the sum that any such child or children may have received shall be deducted, and the balance or residue, sliall be di- vided equally, share and share alike, among my said children, except one-third of the entire estate shall be given to my wife as her right of dower. "(4) But, in case my wife shall remarry, I direct that my executors hereinafter named shall give unto my wife as her interest and for the support of my children the sum of $1,800 a year and the possession of the premises she now occupies, rent free." II. FUTURE ESTATES. 479 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. Construction: The suspension of alienation during the minority of the testator's youngest child, created by the first clause, was valid. SteMin v. SteJtUn, 67 Hun, 110. A will gave the residue of the testator's property to his children; by another clause, the executors were authorized, at any time in their discretion " after the lapse of one year, but not over two years from the date " of the testator's death, to sell a certain parcel of the testator's land, and were directed to deduct from the proceeds the taxes and assessments then due, and a sum then owing to the testator by a person named, and to pay the balance to such person; the power of sale was executed after one year and within two years after the testator's death. Construction: There was no suspension of the power of alienation, and the power of sale was valid, and a title acquired thereunder was good. Buchanan v. Tehbetts, 69 Hun, 81. A devise of the use of land to the testator's three daughters for their lives, and to the survivor of them and after their deaths in fee to another, in case he survived them, but in case of his death before that of the last survivor of the testator's three daughters, then in fee to such last survivor, is void, as being in violation of the stat- ute ia restraint of alienation. Sanford v. Qoodell, 83 Hun, 369. 8. died in 1883 and left a will by which she bequeathed certain premises to H. and C. for life, with remainder in fee to G. ; she gave the same persons the use of her per- sonalty and made a similar disposition of any residue left at the time of their death; she further provided that if G. died without heirs before the death of H. and C, all her property should pass to certain persons named, to whose rights defendants suc- ceeded. H. died in 1886, C. in 1894, G., without heirs, in 1893. The defendants in- sisted that upon the death of C. they became absolute owners of the real estate and what was left of the personal estate. Construction: Defendants' claim was correct; the will did not violate the statutes relative to per- petuities; the absolute power of alienation was only suspended during the lives of H. and C. ; upon the termination of their life estate the fee vested in G., if living, or if dead, in his heirs, if he left issue, or, if he died without issue, tne cee cnen vested in the defendants' grantors. As G. died without heirs while one of the life tenants was living, he had no right, title or interest in the property, nor any which he could convey to a purchaser. ExTuMey v. Mayhorne, 93 Hun, 473. T., a resident of Massachusetts, by the twelfth clause of his will devised his residu- ary real estate, wherever situated, to the plaintiffs, his executors, in trust, to hold and manage the same for the term of five years from the day of his death, and for a longer term if in their judgment they deemed it best, and gave to his executors " full power and authority to sell all his real estate situate in Framingham, Massachusetts, at any time before the expiration of said five years, if in their judgment it was best to do so, * * * and at the expiration of said five years, if my wife shall have died before the expiration thereof, or at her death if she shall live longer than five years, I direct said trustees and the survivor of them, to sell all said real estate not then sold, * * * and I give them a like and the same power and authority to sell and deed said real estate in New York after the expiration of said five vears." Construction: This latter provision of the will relative to the real estate situate in the state of New 480 X. ESTATES IN EXPECTANCY. 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. York was void, in that it illegally suspended the power of alienation for an absolute period of five years. In so far as the foreign will attempted to dispose of real estate situated in the state of New York, its validity must be determined by the laws of this state. As the power to sell the real estate situated in the state of New York did not come into existence until after the expiration of five years, there was a violation of the statu- tory provision directing that such power of alienation could not be suspended for more than two lives in being at the death of the testator. As there was no absolute direction to sell, the power being discretionary, there was no equitable conversion of the real into personal estate. A sale of the real estate here could not be made until after the expiration of five years, and during those five years there could be no equitable conversion. Assuming that there was an absolute direction of sale and a consequent equitable conversion, conversion could not occur in this case until the time when, by the terms of the will, the sale must be made. The devise was void as a trust and could not be upheld as a power In trust. Viewed as a power in trust, it improperly suspended the power of alienation, as the proceeds of the sales were to be divided among the children and grandchildren of the testator who should be living at the time when the several sales of the real estate situ- ated in the state of New York were made, and it could not be ascertained until the time of each sale what grandclilldren would be in existence who would be entitled to the proceeds of the particular sale when it was made, and, hence, there was no one in •existence during the five years before a sale could be made who could release the proceeds of that particular sale and give an absolute title to the land and its proceeds. Trowbridge v. Metoalf, 5 App. Div. 318. The will of C, by its first clause, gave his son R., a single man, a life estate in the homestead, with remainder over to his sister E., in case the son died without issue; by its second clause certain specific personal property was given absolutely to the son, and the third or residuary clause devised the remainder of the estate to his executors and their successors in trust, to pay one-half of the income of the trust es- tate to the son until he attained the age of forty -five years, at which time the corpus was to be transferred to him if the executors considered that he was then a sober man and fit to be intrusted with the property; in case the son died before reaching the age of forty-five years and left issue surviving, the executors were directed to transfer his share to such issue. In case he died before reaching the age of forty- five years and left a widow, but no child or children, the will provided as follows: " Then she is to have and I devise and bequeath to her (the widow) one -half of the income of said half of the rest, residue and remainder of my said property so long as she shall re- main his (the son's) widow." The son married soon after his father's death and died before reaching the age of forty-five, leaving no children, but leaving a widow, who, not having remarried, claimed to be entitled during her life or widowhood to the income of one-quarter of the residuary estate set apart for the son. Construction : The provision devising a quarter of the income of the residuary estate to the widow during her widowhood was void, as it attempted to create an illegal suspension of the power of alienation, by limiting the period of the trust upon a life possibly not in being at the time of the testator's death, inasmuch as the sou did not marry until after the death of his father and might have married a woman born after the testator died.' 'Schettler v. Smith, 41 N. Y. 338; Burrill v. Boardman, 43 id. 359; Knox V. II. FUTURE ESTATES. 481 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. A construction ■whicli would withdraw the provisions for the widow from the trust and treat it as an absolute legacy of a one-fourth part of the income of the testator's estate was not admissible. It was the general intention of the testator to secure to his own children for their lives, and uliimately to his grandchildren, the corpus of the estate, and to this end to embrace in the trust estate the entire residuum. Such was the effect of the gift to the executors prefacing the residuary clause, vyhich was not limited by any succeeding words which, in express terms, withdrew any portion of the residuum from the trust estate. Durfee v. Pomeroy, 7 App. Div. 481, A will gave to testator's mother a life interest in his real and personal estate and di- rected the executor to pay her the income during her life, and gave the estate equally to his brother and sister should they survive the mother, or to their children should either of them die, and if either should die without issue, the whole to the survivor. Held, that there was no suspension of alienation beyond the life of the mother. Oase V. Case, 16 Misc. 393. By will the use of a certain house was given to testator's sister and brother, and after their deaths the rest and residue of the estate was directed to be held by the ex- ecutors for the benefit of two grandchildren until the youngest arrived at the age of twenty-five years, when it was devised to said grandchildren or the survivor. By a codicil the residue of the property not affected by the will was given to the executors to pay taxes, repairs and insurance, and to be otherwise used for the benefit of said sister and brother. Construction : The attempted trust in favor of the grandchildren, was void as unduly suspending the power of alienation, but as they were the sole heirs and next of kin, they took a vested remainder in the real estate and were entitled to the balance of the personalty remaining unexpended at the death of the life tenants. Finch v. Wilkes, 17 Misc. 428. From opinion. — " The trust for the benefit of the life tenants is entirely separate and distinct from that attempted to be created for the benefit of the grandchildren, and while the latter falls, it does not stand in the way of the execution of the former. Kennedy v. Hoy, 105 IS.. Y. 134 ; Underwood v. Curtis, 127 id. 543 ; Brown v. Rich, ter, 76 Hun, 469." Suspension during the life of the widow and the minority of her youngest child, was void. Borland v. Borland, 2 Barb. 63. The absolute ownership of property was suspended for the life of H. and F. with limitation over to surviving issue of F., to be at their disposal as soon as they shall have, respectively and severally, attained the age of twenty-five years ; the interest in the meantime to be paid to them, and in the case of the death of F. before H., gift over to be divided at the death of H. amongst such surviving issue of F. as soon as they should respectively attain the age of twenty-five years. There was no undue suspension. Barrill v. Shell, 3 Barb. 457. A gift in a will to three persons and the survivor of them of the interest of .$1,000, to be paid so long as they or either of them shall live, is void as suspending the power of alienation for more than two lives. A gift of the principal sum of $1,000 upon the death of the last survivor of the three legatees to whom the interest of that sum is given, is void. Banks v. Phelan, 4 Barb. 80. Jones, 47 id. 397; Smith v. Edwards, 88 id. 104; Tiers v. Tiers, 98 id, 573; Haynesv. Sherman, 117 id. 437; Underwood v. Curtis, 137 Id. 540. 61 482 X ESTATES IX KXPECTA>rcr. 23. srsPEXsio:-: of power of aliexatiox or of absolute ow>t:rship. A conveyance of personal estate to trustees to invent the same and pay the interest to specified persons for life, with a limitation to children of each, may be valid as to the first taker although the limitations over be void. Depre v. T/iompson. i Barb. 279 ; J id. 537. A trust did Lot terminate until the expiration of four minorities, and a limitation over was too remote. Vail v. Vail, 7 Barb. 226, affd 10 Barb. 69. A testator, by his wiU, which took effect in 1S36. after sundry bequests to his wife, children, and others, devised as follows : " I give and bequeath all the rest and residue of my estate, after payment of my debts, funeral charges and legacies above mea.ioued. unti my said children (naming them), their heirs and assigns forever, equally to be divided between them, share and share alike, and to the descendants of such of my children as shall have died, in equal p >rtions, that is. such descendants to take the same t o which their ancestor would have been entitled if living ; but no ■division to be made until ten years after the death of my said wife." By an agreement made between the plaintiff C. and Ids wife il. A. C vMs intestate), who was a daugh- ter of the testator, and the executors, on the 4th day of May, 1840, C. and his wife, in consideration of 87,000, a part of the residue of said esrate then advanced to them by the executors, sild and transferred to the executors, all their share in the residu- ary portion of the estate belonging to them or either of them, under the will of the testator or otherwise, to have and to hold tiU a final division of the estate sh^>uld be made, when the sum then paid, with interest. w;is to be deducted from their sha.e. And they covenanted that they would not, during the life of the widow, claim, de- mand, or sue for their share of the estate, nor do any act to impair the will of the tesator. In a suit by C, as administrator of his deceased wife, against the executors, heirs at law, and next of kin of the testator, for an account by the executors, and to recover his wife's share of the residuary estate ; Sdd. 1. That by the will, the children of the testator, living at his death, and the descendants of those who had then died, took a vested interest in the residuary estate, at the death of the testator. 2. That the devise both of the real and personal estate was valid, as vesting a present interest in the beneficiaries. 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 sus- pending the absolute ownership thereof for a period beyond the time prescribed by the statute. Gonnerae v. Kdlogg, 7 Barb. 590. Devise to daughter M., and such of her children as shall at her decease be living and shall have attained, or shall thereafter attain the age of twenty-one years, gave M. only a life estate with contingent remainder to sucli of her children as shonld survive her and should have attained or should after her decease attain the age of twenty-one years. Intermediate the death of M. and a time when all the children became of ase, the property vested in the heirs at law, liable to be divested on the happening of a contingency upon which the remainder depended, and when the contingency oc- curred by the eldest son becoming of age, the remainder vested in him, subject to be di ested, so far as to let in, to their shares respectively, such of 'the other children of >I. as should become twenty-one years of age. The estate being limited to 31. 's lite and iive minorities, and being inalienable during such limitation, the contingent ri-maiuder to M.'s children was void, and, as a consequence, the moiety of the estate taus disposed of descended to 31. as heir at law of the testator, and united with her life e,=tate. A limitation upon minorities is a limitation on lives. TayloeT. Gould, 10 Barb. 3SS. Testator gave to P. E. Society i,a corporation) for promoting religion and learning II. FUTURE ESTATES. 483 33. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. in the state of Kew York, fo.OOO, the accruing income to be applied to the support of the rector, for the time being, of Christ church (incorporated) in G., and any in- terest accruing during a vacancy of the offlce of rector to be paid to the clergyman next to fill the office. Testator gave the same society a farm in trust, and if not authorized to hold the land, then to his executors to sell the farm and pay the proceeds to the society for the same purposes as the $5,000. The testator ordered the rest of his property to be sold and, subject to a life estate in jiis wife, the proceeds paid to said society, to be held as a fund for the support of missionaries in the diocese of New York, and that such fund should be left to increase to $10,000 and the income thereof paid to the disposable fund of the Education and Missionary Society of the P. B. C. in the state of New York (an unincorporated and finally extinct association) for the support of missionaries in the diocese of New York. For a number of years and since the testator's death the church or corporation had had no rector, nor any religious exercises, other than occasional missionary services by the rector of another parish. Construction : The devise in trust of the $5,000 was void as unduly suspending the power of alien- ation and as directing an undue accumulation of income. The provision as to the farm was void. (1) Because the corporation could not take by devise. (2) Because the trust was unauthorized. (3) Because the power of alienation was unduly suspended for an indefinite time not measured by years. The bequest of the remainder of the property, after the life estate, in trust to ac- cumulate the interest until the fund reached $10,000, etc., was invalid. The farm descended to the heirs at law ; the $5,000 to the next of kin ; the rest of the property, after the expiration of the life estate, was undisposed of. King v. Bundle, 15 Barb. 139. The application of rents and profits through a trust to the use of a man's family, is an application to his use, and if confined to his life and to a designated living per- son, is valid ; although the use be exclusively for the wife and children, as it can not last longer than the life of the father, there is no undue suspension. Biogers v. Tilley, 39 Barb. 639. Although the absolute power of alienation be suspended by the nature of the trust and by the contingent remainder in favor of unborn children, yet, as the suspension from either cause could by no possibility continue longer than during one designated life in being, it is valid. Bogera v. Tilley, 20 Barb. 639. A provision whereby the testator directed that the principal of his estate should not be paid over or delivered to the grandchildren until they respectively attained the age of thirty years, was valid. Fowler v. Depau, 26 Barb. 224. It does not follow that the power of alienation is suspended because the right of Immediate partition and division is withheld. Doubleday v. Newton, 27 Barb. 431, citing, 7 Paige 521, 7 Barb. 595. At most the division of an estate was suspended until the devisees, respectively, ar- rived at the age of twenty-one years. Doubleday v. Newton, 37 Barb. 431. Donations to incorporated religious societies are exempt from the provisions of re- vised statutes to prevent perpetuities. Wilson v. Lynt, 30 Barb. 124. The trustees of an incorporated religious society have not capacity to take property devised or bequeathed to them in trust for their societies. Wilson v. Lynt, 30 Barb. 184. Provision in a will that all the testator's property should be kept and remain undis- 484 X. ESTATES IN EXPECTANCY. 23. SUSPENSION OF POWER OF ALIENATION OR OP ABSOLUTE OWNERSHIP. posed of for the use of his wife and children under age and unmarried during the life of his wifeoruniil she should marry again, could not continue longer than her life and was lawful, but the further provision that after the death or marriage of the widow the property should remain and be kept undisposed of for the use of such of his chil- dren as should then be under age and unmarried, was not valid, but this did not affect th(! provision to continue during the life of the widow. Williams v. Conrad, 30 Barb 534. A will and codicils were construed to mean that testator intended that the final di- vision of a general fund out of which annuities were to be paid should be postponed until after the death of the three annuitants. This postponement of the division, or possession of the fund did not prevent the estate from vesting absolutely on the death of the testator. Forsyth v. Bathbone, 34 Barb. 388. After the decease of his son and daughter-in-law the testator gave the residue of the estate "to all of my grandchildren to be equally divided between them, share and share alike." The testator meant by "all my grandchildren " the four children of his deceased son who survived the testator. Forsyth v. Bathbone, 34 Barb. 388. Gift to son J., and to his heirs and assigns forever, of all testator's property, provided J. "ever has any lawful heirs that shall arrive at the age of twenty-one years,'' and the further order and direction that in case J. never have any legal heirs that shall ar- rive at the age of twenty-one years, the property should be equally divided among the testator's brothers and sisters' children. J. took the devise of the lands in fee upon a condition. The condition was not precedent but a conditional limitation, the effect of which would be not to suspend the vesting of the interest devised or be- queathed but to divest it and send the property over in the event of the non-fulfill- ment of the condition. As J. C. might have any number of children the title to the property would be suspended not only during his life but during the lives of each one of such children who should die under the prescribed age and until some one of them should attain that age ; hence the limitation over was forbidden by the statute and the estates in remainder were void. Brown v. Evans, 34 Barb. 594. The absolute ownership of an estate was not suspended by direction to pay or ap- ply the interest to four nephews during the minority of J., as the infants took an absolute interest in the legacies given to them respectively, and such legacies were certain or capable of being rendered certain in amount and payable at a definite period, although the exact amount that they should receive could not be determined until that period arrived. Titus ^r. Weeks, 37 Barb. 136. Although the power of an executor to convey was suspended for the term of three years, the remainder, subject to the execution of the power, remained vested in the heirs at law. Persons v. Snook, 40 Barb. 144. Testator directed his personal property to be sold and the proceeds to be disposed of, except a legacy of $25, as follows: To be divided equally between his living chil- dren F., C, S., L., R., and Rhua, and the heirs of Rebecca and Maria, deceased chil- dren ; making eight shares ; Rhua to take immediately and absolutely ; the first five to have only the use or interest of their respective shares during life and on the death of eithpr of them, his or her share to go to his or her heirs, if any living, otherwise to the testator's children then living, but the said first five surviving to have only the use during life. As to the seven shares, after paying Rhua's share, nothing was intended to be given to any of the five children named, except an interest for life. This bronsht the disposition of the personal property within the prohibition in regard to the suspension of the absolute ownership of personal property for a period of more than two lives in being at the death of the testator. The grandchildren liv- ing !it the death of the testator did not take a vested interest in the shares of their II. FUTURE ESTATES. 485 23. SUSPENSION OP POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. parents, subject to open and let in afterborn children, and their interests were con- tingent and dependent upon their surviving their parents. Tlie disposition of each share of the personalty was void. PersoTis v. Snook, 40 Barb. 144. Testator directed that all his estate, after payment of expenses and legacies, should remain in the hands of his executor or under his control for the use of his wife and children while under age, and if his youngest grandchild should not arrive at the age of twenty-one years, he directed the same to be divided among his children, share and share alike. The power of alienation was not unduly suspended. The executors took no estate in trust, and although they were directed to convert the estate into money and hold and manage proceeds, the wife and minor children took the interest of the estate and each child had a share in the property while a minor, and the estate of such child ceased on its reaching its majority, and the share held by such child thereupon vested in the other children who were minors, and the wife. A daughter of the testator who was of full age at the time of his death, and who died before the youngest child arrived at the age of twenty-one years, never had such estate in the lands of the testator as to vest in her husband as a tenant by the curtesy, as she was not entitled to any possession until the youngest child became of age. Burke v. Valen- tine, 52 Barb. 412. From opinion. — "It is evident from the whole frame of the will that the testator never contemplated the possibility of any of his children dying before arriving at the age of twenty-one years. He made no provision for the inheriting of grandchildren in case of such death, nor any disposition of the share of any child in case of such an event. He selected his youngest child and made the estate to the widow and minor children limit^id on the minority of the youngest child. Under this construction, the limitation would be dependent on the life or minority of that child, and would vest at once in all the children living when either event happened. Butler v. Butler, 3 Barb. Oh. 310 ; DuBois v. Ray, 35 N. Y. Rep. 165. "This construction of the limitation is warranted by Hawley v. James, 16 "Wend. 119, where Ch. J. Nelson says: ' Youngest of my children and grandchildren standing alone might well never refer to the youngest of each class' ; and a class in the will in that case was held bad, because it in addition said ' the youngest living and attain- ing the age of twenty-one years,' by which the intention to apply It to all the chil- dren was apparent." A trust was illegal and void by reason of a limitation upon its existence and con- tinuance, which the testator had imposed upon it for the payment and extinction of mortgages, which might unduly suspend the absolute power of alienation. Killam V. Allen, 52 Barb. 605. By a trust deed the trustees were required to collect and receive moneys, proceeds and income and make disposition of the property granted, to invest the same, collect and receive interest and income, and from the moneys so arising to pay the expenses of the trust and apply the balance of the income and principal, so far as in their judg- ment might be required, to the support and maintenance of the grantor's wife and children, and on the arrival of the youngest of such children, then living, at the age of twenty-one years, or upon the decease of M. and A., the two youngest children, should they die before that time, to convey to the children then living and to the grantor's wife, or to such of them as should survive, and to the descendants of any of such as might be dead, said property in equal shares, and descendants of the deceased children, to take the share their parents, if living, would have taken. The trust was for the benefit of the grantor's wife and five minor children. The power «f alienation was not unduly suspended. Levy v. Hart, 54 Barb. 348. 486 X. ESTATES IN EXPECTANCY. 33. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. A devise and bequest by a testator, of all his estate real and personal, to his brother and to twelve nephews and nieces, in trust to pay over and divide the rents and profits of his real estate (after satisfying certain specific legacies and annuities) to and among the same twelve nephews and nieces, during their natural lives, and to the survivors and survivor of them, equally to be divided between them, or such of them as should from time to time be living, share and share alike, is a void trust. So that the testator having directed that after the death of all his said nephews and nieces, all his estate then remaining should be equally divided among all the children of his said nephews and nieces, and the surviving children of such of them as might then be dead, in equal proportions, per stirpes and not per capita, such distribution not to be made until two years after the decease of all his said nephews and nieces, the limitation over of the ultimate remainder, was also void. The principal trusts created by the will being adjudged void, and thus the main intent and object of the testator defeated, certain life estates in particular lands, given by a codicil executed by the testator, to one of his nieces and two of his grand- nephews, for whom provision was made under the principal trusts, were also void, and the whole estate passed to the heirs at law of the testator. Coster v. Lorillard, 14 Wend. 265, rev'g 5 Paige, 173. The creation of a trust term by will to continue until the youngest of a testator's children and grandchildren, attaining the age of twenty-one years, shall have attained that age, where the number exceeds two, unduly suspends the power of alienation. The power of alienation can be suspended in no other way than that recognized in the fifteenth section of the act, i. e. , during the continuance of one or two lives in being at tlie creation of the estate ; and consequently such power can not be suspended for a m >derate term of years, for an average duration of lives, whilst certain specified mi- norities continue, or by any other limitation that may by possibility extend such sus- pense beyond two specified lives in being. A testator created a trust term, directed his trustees at the expiration of the period prescribed for the continuance of the trust, to divide his estate into twelve equal parts, and to allot, distribute and convey to certain of his children and grandchildren sever- ally, certain portions of the estate for life, with power to the grantee to devise the same in fee to his or her lineal descendants in such manner or proportions as he or she might think proper ; and in the event of such grantee either leaving no descend- ants or omitting to made a valid disposition of the same in execution of such power, then with remainder in fee to such person or persons as by the statute of descents would have been entitled to inherit the estate, had the grantee, having derived the same from the testator, died intestate, lawfully seized thereof in fee. ' Construction : The estate in remainder was an estate which suspended the power of alienation con- trary to law, and the estate in remainder, the life estates and all the contingent re mainders depending thereon, were void ; and the real estate of the testator descended to his heirs at law, free, and discharged of all conditions, devises, directions, authority, power or control of the trustees— saving, however, from the operation of the decree aJCfecting the lands of the testator situate ia the state of Illinois. Annuities for life having been given by the testator to two of his sons, and no other provision having been made for them by the will, and it having been adjudged that the trust term and the remainders suspended thereon, were void, and that the estate descended to the heirs at law of the testator, such sons were bound to elect within a given period whether they would accept the annuities, or renounce them, and take as heirs at law and representatives of the testator. II. FUTURE ESTATES. 487 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. Notwithstanding tliat the trust terra and remainders were adjudged to be void, numerous annuities and legacies given by the will were good and valid, and the trus- tees in their character of executors, were directed to carry into effect the directions of the testator in respect to such annuities and legacies. Hawley v. James, 16 Wend. 61, modifying 5 Paige, 318. A devise, void as to the limitations created thereby, is void also as to the directions for the apportionment of the estate among the beneficiaries, where such apportion- ment is different from the rules established by the statute of descents. How far a will, invalid as to some of its provisions, can lie sustained as to others not in conflict with the statute regulating the devise of real estate ; and when a will will be avoided in toio, on the ground that by declaring void portions of it, the main intent of the testator is defeated, are considered and discussed. Salmon v. Stuyvesant, 16 W^end. 320. From opinion : — "The power of appointment was rendered void as to estates for life, to be devised to objects of the power not living at the time of the testator's de- cease, but not as to those who were then in esse ; and it may still be effectual to pass a fee to either. Sees. 17 and 139. Suppose there had been a direct limitation to a son for life, remainder to and among his children as tenants in common, viz., as to those living at the testator's death, for life, remainder to the children of ea:;h in fee ; and as to those born after tlie testator's death, in fee ; tlie first would be valid within the seventeenth section; and no doubt the second would be good, which is for a single life in being, directly followed by a contingent remainder in fee. Alienation is here sus- pended for only one life in being. In tlie former case there would have been but two successive lives in being, followed by a similar remainder. There is no doubt that two successive lives may so run for each share in common to eacJi cliild. Now the power given, I admit, if it should be executed by the grantees in its utmost verbal latitude and in its broadest construction, miglit attempt to give a life estate to a child or nephew or niece born after the death of the testator ; but for aught we know, none has been or will be born after his death ; and if there should be, it does not necessarily follow that the grantees of the power will try to abuse it. Should they do so, the law will frustrate the attempt, and I should suppose we ought rather to intend that the power will be executed within due limits. I do not understand the statute to declare a trust power to be absolutely void, because it is so framed as, in one view, to auth- orize an appointment of an estate such as the will could not create, provided that in an- other view it can create estates within reach of the original devise. In estimating the suspension of alienation, you must, to be sure, date from the will. Sec. 128. You are then to look at the estate actually created by the power. If that does not exceed the legal limit of suspense, counting from the time of the testator's denth, all is well. • The 129th section is, that no estate or interest can be given or limited to any person by an instrument in execution of a power which such person would not have been capable of taking under the instrument by which the power is granted.' We are, therefore, to look within the compass of the power, which may easily be confined to lives in being, or even brought down to a simple fee in all the appointees. It will be time enough to look to the execution of this power, and nullify that, when we see the appointment of a life estate to a relxtive who was unborn when the testator died, or other estate created beyond the legal scope of the power. So far we have been speaking of the power to devise, which is not beneficial but in trust. That comes un- der the 129th section alone in regard to its extent, and validity. And so I should sup- pose, in respect to the term for years, were it not for section ninety-two. A lease, though bad for sixty-three years, would be good for twenty-one years within the 488 X ESTATES IN EXPECTANCT. 83. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. Statute, and might avail for that time if expressly so limited ; sec. 87 ; but section 93 declares that no beneficial power, other than such as is enumerated and defined by the statute, shall be valid. It appears to me, therefore, that the leasing power for years is destroyed by the statute." Where a testator, by will made in 1828 and republished in 1833, devised all hia real estate to executors, in trust, lo make partition among his children, and to convey their several proportions to each for and during his natural life, with power to make leases for a life or lives in being, or Tor a term of sixty-three years, and by last will and testament to devise and appoint tho land conveyed to him, to or in trust for any one or more of his children, grandchildren, nephews or nieces, for such estates and subject to such powers as he should think fit ; and for want of such appointment, the land to go to the children of the son dying without making such appointment : and if he left no child or grandchild, then to the right heirs of the testator ; it was held by the chancellor, inasmuch as by the republication of the will after the Revised Statutes went into operation, the power to execute leases for the period of sixty-three years, was reduced to the execution of leases for only twenty-one years ; but in view of the peculiar situation of the property devised, the carrying of the will into effect according to its terms, would defeat the principal intent of the testator, and that therefore it ought to be declared void, except as to the direction of the proportions in which the children should take, and the power of partition given to the executors ; and he accordingly decreed that the children of the testator should take the property as heirs at law with the exceptions above stated, and declared the powers in trust to appoint the remainders and also the limitations over void. On appeal, this decision was affirmed in the court for the correction of errors, by a vote of twenty-five mem- bers of that court ; seven only dissenting. Boot v. Stuyvesant, 18 Wend. 356. A devise of real estate to executors in trust, to receive the rents and profits, and pay over the same to the children of the testator for the term of twenty one years, is void ; so, also, a power in trust to make partition at the end of such term, is void. Where, by the same will, the testator gave to each of his grandchildren, who should be living ^t the time of his death, the sum of $6,000, to be paid upon their attaining the age of twenty-one, or marrying, such payment, however, to be subject to the approbation of the parents of the grandchildren, and the time of payment to be fixed by them ; It was held, that the legacies were vested and not contingent, and that the power given to the parents did not prevent the vesting of the legacies. The bequest of the legacies to the grandchildren being in itself free from objection, and having no necessary connection with the trust adjudged to be void, it was held, that the will in respect to such legacies, should be carried into effect, notwithstand- ing that the trusts created by the will were declared void ; this decision is in accord- ance with Hawley V. James, 16 Wend. 61, though not with Root v. Stuyvesant, 18 id. 357. Hone's Ex'rsv. Van ScTiaick, 30 Wend. 563, afl'g 7 Paige, 331. The statute in regard to estates in personal property treats only of accumulation of interest or income and of expectant estates. The mode of directing accumulation, so as to be valid, the statute specially points out. The suspension of absolute ownership is limited to two lives ; and in all other respects, limitations of future or contingent estates are the same as if the subject were real estate. Kane v. 6oit 34 Wend. 641. Where a testator, by will, bequeathed annuities to five of his children, and directed that on the death of either without issue, the annuity bequeathed to the child dying should be equally divided among the survivors ; but if there was issue, then the an- nuity to be paid to such issue during the lifetime of the wife of the testator, and on her death the principal of 'such annuity ; that upon tbe decease of any of the five children, after the death of the wife of the testator, a like portion of the principal of II. FUTUEE ESTATES. 489 •23. SUSPENSION OF POWER OP ALIENATION OR OF ABSOLUTE OWNERSHIP, his estate should be paid to the issue of the child so dying, and that a flnal distribu- tion and settlement of his estate among his grandchildren should be had immediately after the death of the survivor of his children. The vesting in possession of tbe several portions of the estate was not postponed beyond two lives in being at the time the will took effect, and the will was valid. Bidkley v. Depeyster, 26 Wend. 31. Where a testator devised his estate to trustees to receive and apply the rents and profits, which as to its object was a valid trust under the third subdivision of section 55, but which trust was to continue until the testator's youngest child would, if liv- ing, attain the age of twenty years, the devise was void, for suspending the power of alienation for a period not limited by the continuance of two lives in being at the creation of the estate. The utmost limit for the continuance of the estate must be bounded by life, and no certain term for its continuance, however short, can be supported. Boynton V. Hoyt, 1 Denio, 53. Where the sister of the testator, at the time of the making of his will and at his •death had but one child, and he devised the residue of his real and personal estate to such sister, to hold the same to her and her children forever, with a devise over, in case she should die, and all her children should die, leaving no children, under the Revised Statutes, the sister took an estate for life in the property, and the child took a vested remainder in fee, subject to open and let in afterborn children; and the limitation over after the death of all the children of the sister without issue was void, being too remote as to the afterbnrn children. Hannan v. Osborn, 4 Paige, 336. Where the testator directed the investment of his estate in the purchase of lands for the benefit of his three infant children, upon an express trust to receive the rents and profits of their several shares thereof, for their use, until they should attain the age of twsnty-one or twenty-two, in the discretion of the trustee, with cross remain- ders between themselves if they died before they came into possession of their several shares without issue, and with remainder to their heirs of the blood of the testator, if hey all died before that time without issue, the ultimate limitation over to their heirs was too remote and void. Wood v. Wood, 5 Paige, 595. Where the testator by his will, after providing for the payment of his debts, and making certain specific bequests, gave the residue of his real and personal estate to his executors in trust to lease his house and lot on Market street, and to lease and sell and convey the rest of his property, and apply the proceeds and income thereof as fol- lows: one-fifth to his son in fee; three-fifths to the support of his daughters, E., G., and H., respectively; and one-fifth to the support of his daughter A., free from the control or debts of her husband; and should any of his daughters die leaving issue, the share given for her support to be applied to the support and education of such is- sue; but in case either of his said daughters should die without leaving issue, the use and income of her share which should then remain to be divided among his surviving children or their heirs, except the share thereof to which his daughter A. would be entitled, which was to be vested in his executors, subject to the trust relative to her fifth of the estate; Seld, that under the provisions of the Revised Statutes, the devise of the testator's house and lot on Market street was inoperative and void; as the trust to receive the rents and profits during the lives of his four daughters would suspend the power of alienation for more than two lives. Construction: The devise of the residue of the real estate was valid as a power in trust to the ex- ecutors to sell such estate for the benefit of legatees, and convert the same into per- sonalty for all the legal purposes of the will ; and to invest the share of each daughter 03 490 X ESTATES IN EXPECTANCr. 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. as personal estate, and to receive the interest or income thereof for her use. But as the power to lease such real estate and receive the rents during the lives of the four daughters might suspend the alienation beyond the limits allowed by law, the trust to lease the same and receive the rents thereof as real estate was therefore void; and the land descended to the heirs at law of the testator, subject to the right of the legatees to have the same immediately converted into personal estate by the execution of the power in trust to sell. Van Vechten v. Van Veghtm, 8 Paige, 103. The testator directed that if any of his five children to whom life estates were given shonld die without issue, the income of his or her share should go to the survivors for life, with remainder to their children, after the death of the widow; the limitation over to the survivors and to their children was void, as it might suspend the absolute ownership for more than two lives in being at the death of the testator. DePeyaier v. Clendining, 8 Paige, 394. Where real estate is devised to a trustee, upon a valid trust, during the continuanca of two lives in being at the death of the testator, with a further limitation in trust which would have the effect, if executed as a trust, to suspend the power of alienation beyond the time allowed by law, the last limitation as a trust is void, and the estate of the trustee will cease when the valid trusts shall have been executed. And as the particular intent of the testator, in continuing the estate in the trustee for a longer period, can not take effect, the legal title must therefore vest in the cestui que trust if consistent with the general intention of the testator in relation to the disposition of his property; or if it can not so vest consistently with his intention, it will belong to the heirs at law of the testator, or to other devisees under the will. Parks v. Parka, 9 Paige, 106. Where a power in trust, to executors, to lease the real estate of the testator until it can be sold, would have the effect to suspend the power of alienation in such real estate beyond the tirue allowed by law, it is void. But the power in trust to sell, in such a case, will still be valid. And the real estate, in equity, will be considered as converted into personalty immediately ; where such a conversion is necessary to carry into effect the will of the testator, and to prevent injustice to any of the objects of his intended bounty. Haxtun v. Corse, 3 Barb. Ch. 506. C, by her will, directed her property to be converted into money, and invested at interest ; and, after giving legacies, ordered as follows : " That all such residue of such interest money, or otlier profits as tliere shall be, after such payments as above mentioned, be equally divided among my children, or the survivor or survivors of sucli as shall die childless, yearly, and every year, share and share alike, during their natural lives ; and that if either of my said children shall die leaving a child or chil- dren, then the part or share of which the parent of such child or children was receiv- ing the interest during his life, shall immediately vest in and be the property of such his child or children as shall be living at his death." There was no undue suspension of ownership. Cromwell v. Cromwell, 2 Edw. Ch. 405. Testator directed executors to invest $100,000 on real estate and divide the net in- come among his eight children, or the survivors of such as should die during their respective lives. The children were not to dispose of their share without the consent of a majority of the executors. The shares of the children dying should go to their children, to be equally divided, share and share alike. The trust was void. The $100,000 was to go as real estate among the heirs and not into the residue. T7u)rn v. Coles, 3 Edw. Ch. 380. A testator directed a division of his estate to be made at the expiration of seven years from his death, provided his daughter had then been dead two- years, and gave, out of a fourth part, the sum of |500 to a legatee, and that the residue should be II. FUTUEE ESTATES. 491 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. paid to a trustee, to keep the same invested, and pay the income to S. M., until the eldest child of the said S. M. should arrive at the age of twenty-one years ; then, to divide it among the children of said S. M. The eldest child living at the death of the testator was about nine years old, and the youngest six months — one was subsequently born. Held, that even assuming the term " eldest child " could be limited to the eldest liv- ing at the testator's death, the devise was void, as alienation would be suspended for a certain period of twelve years. Held, lliat the term meant the child which should first arrive at age. Any limitation which may, by possibility, produce a more extended suspension than for two lives in being, is void. The disposition of the income being for a period not permitted, was also held in- valid. Butler V. Butler, 1 Hofl. Ch. 344, aff'd 3 Barb. Ch. 304. By a postnuptial settlement, the husband conveyed to trustees all his interest in the real and personal estate of the wife, in trust, to receive the income and apply it to the separate use of the wife for life, and after her death to .ipply the same to the support, etc., of her issue, until they should attain the age of twenty-one years, and then to divide the estate among the issue. The trust was valid as to the real estate, and as to the personalty, so far as the wife's trust Interest was concerned. The trusts in the personalty, after her death, were void, as unduly suspending the absolute ownership. The interest of the wife in the prior settlement was not a future or expectant estate, and did not fall within the provision of the Revised Statutes, which makes the interest of the beneficiary in a trust, inalienable. Orout v. Yan Sohoonhoven, 1 Saudf. Ch. 336. A testator devised his real estate to his executors in trust, to lease the same and re- ceive the rents and profits, and to improve and build on the same, and for these pur- poses to mortgage any part of it. When either of his children arrived at lawful age, the trustees might sell all or any part of the real estate, if in their opinion it was then advantageous to do so, and the conduct and character of such child in their opinion justified them in selling. He directed that in any event, the whole of his real estate should be sold by the trustees, by the time his youngest child should arrive at lawful age. Upon such sales being made, tbe trustees were to pay and divide all the income and profits and proceeds of the sales, to and among the testator's four children by his then wife, and such other children as she might bear to him thereafter, their heirs and assigns equally ; the issue of such as were dead, to receive the share of their parent. The trustees out of the estate or the income, were to pay as might be neces- sary, for the support and education of the children, during their respective minorities. The testator then gave the residue of his personal estate to the four children and such others as he should have by his then wife, to be paid and distributed to them equally, at the time of the sale or sales and distribution of his real estate. He directed that his whole estate should be kept constantly accumulating, as much as could be, until the sale and division of his real estate ; and he authorized his trus- tees to use and apply the whole or any part of the personal estate and its income, towards building on and improving, any of his real estate. At the death of the testator the four children were infants ; and he had no issue after the date of the will. Construction : 1. By the devise in trust, the power of alienation of the real estate might be sus- 492 X. ESTATES IN EXPECTANCY. 23. SUSPENSION OF POWER OF ALIENATION OB OF ABSOLUTE OWNERSHIP. pended for more tUaa two lives iu being at the death of tlie testator, and it was tliere- fore void. 2. Tlie trust for accumulation was void. 3. Tlie bequest of the personal estate unduly suspended its absolute ownership. 4. The trust to mortgage, was valid, as a power in trust for the benefit of legatees. 5. The real estate having descended to the heirs, and a partition being sought, the trust power was directed by the decree to be extinguished, on a suitable provision being made for the legatee. 6. The testator gave a legacy to one of his heirs, who was excluded from the real •estatj by the will. On the devises being declared void, the heir was put to an elec- tion between the legacy and her share_^s an heir at law. Thompson v. Olendening, 1 Sandf. Oh. 387. Note.— The limit may be for any term of years, or on any contingent event, ex- pressing that it is on condition that the two lives shall so long continue. (395.) A testator gave to his wife for life all the income, rents and profits of his real and personal estate; and after her death gave the like interest to T. for life, out of which she was to support three infants, W., J. and E. Next, he gave the whole rents and income after her death to W., J. and E. for life, as joint tenants; and then gave the residue of his estate to E. absolutely and in fee, first providing for her $50,000 when she should arrive at age. Then followed a provision that if E. should die without children or issue, that the whole residue of his estate should go to his cousins. Oonstruction: 1. The first two life estates in the income and profits were valid. 2. The subsequent gifts of tlie personal estates were void as suspending the abso- lute ownership more than two lives in being at the death of the testator. Simmons v. Cairns, 3 Sandf. Ch. 369; 2 Barb. 243;, see Jansen v. Oairnes, 3 Barb. Oh. 350. A devise of real estate to, and for the benefit of four minor children, not to be sold or divided until the youngest survivor shall become of age; and if either of them should die his share to be divided among the survivors; is void as suspending the absolute power of alienation, contrary to law. A power in trust, to receive the rents and profits and apply them as directed, in- cluding a division of the surplus among such four children, was coequal in duration with the limitation of the division and vesting of the estate, and therefore void, on the same ground. McSorUy v. Leary & Hoey, 4 Sandf. Oh. 414. Testator devised his estate to his executors as trustees for a term of three years and directed them to accumulate the rents and profits and income during that period and at the expiration of the three years, if the money should not be applied to the erection of the statue to Washington or should be found inadequate for that purpose, lie di- rected an equal distribution among three institutions. The trust and the limitation in favor of the charitable institutions were void, and the real estate descended to the heirs at law and the personalty to the next of kin, save the payment of legacies and expenses. Morgan v. Masterton, 4 Sandf. 442. "Will took effect before the Revised Statutes; the testator gave his personal estate to his executors in trust to pay certain annuities from the income, an annuity to his son for life, and if ho should marry and die before his wife then to pay her annuity for life and accumulate the surplus income, and on the death of the son to set apart and secure the annuity to his widow surviving him, and the residue to be transferred to all or such one or more of the son's children or grandchildren at such time and age and in such manner and in such shares and proportions as the son should appoint by II. FUTURE ESTATES. 493 33. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. ■will, and in default of his appointment, to his children and grandchildren per stirpes, and if none, to the testator's brothers and sisters and their issue. The son, having married and died, left a widow and two sons, the eldest being nineteen years of age. By will he directed that one-half the estate should be kept by the trustees until the son became forty-flve years of age or his death before that age, applying the income for his benefit, and on his arriving at that age to transfer the capital to him absolutely. If he died before that age to transfer the estate to his next of kin. Like provision was made for the younger son in respect to the other moiety. The will and the ap- pointment by his son were to be construed, in respect to the validity of the latter, as if they were contained in the same instrument and were the single disposition of the estate and the appointment was void as suspending the absolute ownership of the per- sonalty bequeathed beyond the period allowed before the revised statutes took effect, and the will and the appointment combined tied up the personalty during several specified lives and for more than twenty-flve years thereafter. Thomson v. Livingston, 4 Sandf. 539. In computing the period of suspension, the lives of annuitants are not to be added to the term of the minority. When tlie will directs that capital shall be set apart for the payment of annuities there must be a distinct share of the sum for each an- nuity, and hence the suspension can not exceed a single life in addition to the mi- nority. Lange v. Boplce, 5 Sandf. 363. An express trust suspended during minority is determined by the death of the minor under age; if it is to continue during more than two minorities it is void as suspending alienation beyond two of the lives upon which it depended; but it is valid where it appears that it can not exceed a single minority. Lange v. Raphe, 5 Sandf. 363. Where the trust unduly suspends the power of alienation it is void, but its invalidity as a power in trust never deprives the beneficiary of the benefits intended. Lange v. Boplce, 5 Sandf. 363. See this case followed in Lang v. Wilbraham, 2 Duer, 171. M. devised his estate to his wife " for her own behoof and the maintenance of his children, and upon his son John (the youngest child) becoming of age. the whole estate to be equally divided among his seven children (naming them) ", and that should death take either from the world, it should be equally divided among his survivors. This suspension could not exceed a single life in being at the death of the testator. McQowan v. McQowan, 2 Duer, 57. Direction to trustees to invest and from the interest accruing during twelve years pay legacies to certain religious societies unduly suspended absolute ownership. Mat- ter of 8ta/rr, 2 Duer, 141. Will gave the testator's widow a life estate in lands at M. and to his three children " an equal undivided one-third portion each of all my real estate at P," and after the wife's death " each one-third portion of the estate left to my wife during her life," and provided that if either of his two sons should "die leaving a widow" the latter should use the interest of the estate or money left to the son alone, the principal, on her death, to go to the son's children. The testator's wife died before him. Each son took a life estate ; the second intended life estate to the son's widow was for the son's issue and might be a person not in being at the testator's death, and therefore the limitation over on the widow's death was void, and the testator died intestate as to the residuum after each son's life estate, and the same would therefore descend to whoever were testator's heirs at the time of the death of the sons respectively. Stevens V. Miller, 2 Duer, 597. Devise to executors in trust to pay rents to father for life and after his death to pay 494 X. ESTATES IK EXPECTANCY. 23. SUSPENSION OP POWER OP ALIENATION OR OF ABSOLUTE OWNERSHIP. an annuity of $3,000 to bis mother for life, and tlie residue to his sister M., and after the death of mother to pay the whole income to the sister during life, and after the decease of father, mother and sister to pay the income to three children of his sister ^naming them) as soon as the youngest should attaiu the age of twenty-one years, duriag their lives. As soon as the youngest child, or any of them, should attain the age of twenty-one years to sell the property and divide the proceeds among the chil- dren of the children named in the will, as speoifled. The devise to the executors was void as an entirety, or valid only during the lives of the father and sister of the legatee, and upon either supposition the children of the sister became entitled upon her death, as her heirs at law, to the property. O'Brien v. Mooney, 5 Duer, 51. Devise in trust to apply rents as may be necessary for the support aud maintenance of wife during her life and divide the residue among his three children named in the will during their lives. Two only of the children survived the testator. There was no suspension beyond the lives of the two children living at the testator's death. Tlie provision for the wife was in the nature of an annuity and therefore a legacy and within the meaning of subdivision two of section 55 of the statute of uses and trusts, and it was to this subdivision of section 55 that the trust (created for the use specified) must be referred. Oriffen v. Ford, 1 Bos. 120. The words "on my youngest child attaining the age of twenty-one years" were construed as if the name of the youngest living at the testator's death were inserted. It was held that whether the words be read thus or as intending the youngest who should attain majority, was not material to the validity of the will, for in either case the remainder over in the case of a child dying without issue before majority of the youngest child would be a future estate vested as to the person, but contingent as to the event which, by the revised statutes, would not be inalienable ; so there was no illegal suspension of the power of alienation and the executor's agreement of sale after the youngest child attained majority could be inforced against the purchaser under the facts of the case as presented. Bels y.- Lynch, 8 Bosw. 465. Direction that executors invest a sum in the purchase of real estate in their own names in trust and apply income for support of widow during life and support and education of two infant children until they became of age, unduly suspended power of alienation. Such a provision is not valid by a subsequent provision that upon the death of the widow the sum so directed to be invested should become residuary estate. Bcott V. Monell, 1 Redf. 431. Testator, by the second clause of his will, gave to his wife the net income of his property for her life and after her death to three children in equal shares for life, the principal after their death to grandchildren ; by the third clause he gave certain lega- cies payable out of the income, and by the fourth clause appointed a trustee to carry the will into effect. So much of the second clause as suspended the absolute owner- ship was void and so much of the same clause as bequeathed income to the wife was inseparable from the illegal portion and failed with it ; the remainder of the will in- cluding bequests in the third clause were valid, and in other respects the testator died intestate. Richards y. Moore, 5 Redf. 278. Testator gave the residue of his estate in trust to pay one-sixth of the net income equally to each of his six descendants for life and on the death of any one of them to transfer his share absolutely to his issue, or in default thereof, to the survivor of them per stirpes. There was no suspension of the absolute right of ownership or power of alienation. Dickie v. Van Yleck, 5 Redf. 284. A will created a trust for the support of widow during life and for the support of infant ohiliren, and directed aooumulit.ion nf surplus income until youngest child arrived at age, each child receiving at his majority his surplus accumulation, but no IL FUTURE ESTATES. 495 23. SUSPENSION OF POWER OF ALIENATION OR OP ABSOLUTE OWNERSHIP. division of the principal fund was to talio place until the widow's death and majority of the youngest child. The trust and suspension were undue, but a direction for the accumulation of the income of A.'s share until B. should arrive at age was bad. Es- tate of Buppert, Tucker, 480. A testator gave his wife certain legacies and the income of certain leasehold property for her support and the support of his minor children and directed that a house and lot be sold and one-half the income of the proceeds be paid to his wife until his youngest child then living attained majority, and that the other one-half of such in- come accumulate and that the entire principal and accumulation be divided " between my said children who shall be then living aud the lawful issue of any wlio may have died leaving children, equally when my youngest cliild then living shall be twenty- one years of age, and in case any of my said children shall die before my youngest child then living shall be twenty-one years of age, leaving lawful issue, sucli issue shall take the share of his deceased parent." Six children survived the testator. On an application during the minority and lifetime of three of them by the widow to compel payment of the portion of the trust fund for the infants' support, the adult children not being made parties, it was held that the order must be refused for lack of necessary parties, viz., the adult children, who, if alive at the attainment of major- ity by the youngest child, would be entitled to share in the funds, and the possible issue of such children as should die before such an event, whose right, during the life of the trust, was not extinguishable by any consent or waiver ; and that as to whether the time intended in the words " youngest child then living" was that of testator's death so as to entitle at least one infant to an advance from the funds, or that of an attainment of majority by such children as should in fact live to be twenty-one years of age and be the youngest child then living, thus avoiding the statute as to accumu- lations, quwre. Sehmitt v. Kahrs, 1 Dem. 114. Testator directed that after the payment of certain legacies his executors sliould deposit the remaining proceeds of his estate in the bank and after the expiration of fifteen years from his death the same should be divided among his four grandchildren named, share and share alike, and in the case of the death of either of the grandchil- dren before such time, its share should be appropriated to its funeral expenses, There was no illegal suspension as, at the death of the testator, one equal undivided one- fourth part of the property vested in each grandchild, and the term of years men- tioned by the testator was not absolute but qualified, so that as to each share it must be determined at the end of the life of the legatee entitled to it. Glancy v. O'Qara, 4 Abb. N. C. 268. Testator, dying in 1858, left surviving, his widow Sarah and two sons, Henry and William M. He made the widow executrix and gave her all his estate during her natural life, or so long as she remained his widow, and provided that in case of her marriage that thereupon she should receive $3,000, and the possession and manage- ment of the estate should pass to his sons subject to the following restrictions: " The principal to remain entire until my son William M. shall have reached the age of forty years, which will be in 1866; should both my sons die before their mother, leav- ing no children, then at their death the estate shall be sold and the proceeds divided into two equal parts, one-half to my widow to be distributed as she may have by will directed, and the other half to be shared equally by " two sisters named. Henry died in 1863 unmarried aud without issue and William M. died October, 1869, unmarried and without issue, and the widow died in 1871. It was the intention to provide that in case Sarah remarried and William M. lived until he was forty years of age, the estate should not be sold until he should arrive at that age, and the limitation was only intended to apply in case William M. attained the age of forty years, and such limita- 496 X. ESTATES IS EXPECTANCT. 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP. tion did not unduly suspend the absolute power of alienation, for, if it had been in- tended that the limitation should extend to 1866 (which would be within the statute) William M.'s name would not have been mentioned. American Bible Society v. Utark,. 45 How. Pr. 160. A trust term will be implied where there were directions to sell real estate and con- vert all the testator's property into money, invest the proceeds for a term of years for the purpose of accumulation and then pay specified legacies and divide the residue, if any, among other legatees, and the trustees would take legal title. Where a trust was impliedly given to executors it was not sustained where it was limited for five or ten years. Legacies dependent upon a void trust fell with it. Gifts in one clause of a will being separable from void legacies and from a void trust scheme, may be sustained since the statute against perpetuities, only where it is for estates limited to take effect, after a prescribed limit. Bean v. Boioen, 47 How. Pr. 306. A gift in a will to the poor of the town of Scriba was on impossible conditions and failed. A bequest "to my wife's father and mother each $300 per year, and after that the same to my wife M. for and during her life " was a valid annuity to each as to the father and mother, and upon their decease, respectively, the widow took the amount bequeathed to each annuitant during life. Matteson v. Matteson, 51 How. Pr. 376. The testator gave to his widow M. one-half of all the income of his estate for a term of fifty years from his decease to use as she thought proper. As it only gave her the Income and not the corpus it did not unduly suspend the power of alienation. Mat- teson V. Matteson, 51 How. Pr. 376. A will provided as follows : " I do hereby give and bequeath the income, or in- comes, arising from all my estate, to my children living at the time of my decease, to have and to hold the same during the term of each of their natural lives, and at the decease of my said children I give and bequeath to my grandchildren all my said real estate, share and share alike, to have and to hold the same forever. And it is my will and desire that my said real estate shall not be sold during the lives of said children. " The absolute power of alienation was unduly suspended, as the testatrix left her sur- viving four children and several grandchildren, and there was a complete division of all the income of all the real estate to these four children to the end of the life of the survivor of them, and the real estate was inalienable before the death of such last survivor, upon which event the devise to the grandchildren was to take full effect, and the grandchildren could not make an effectual alienation for the reason that it could not be ascertained, until the death of the surviving child of the testatrix, who would eventually take the estate, and as there was nothing in the will which would exclude grandchildren born after the death of the testatrix from participating in the devise of the real estate. Morris v. Porter, 53 How. Pr. 1. Testator gave the income of his estate to his four daughters, to be divided between them equally " during their and each of their natural lives, with remainder to their respective children and to their respective heirs." The will afterwards provided that if either daughter should die without issue, the share of such deceased daughter should be divided between the survivor or survivors of them, share and share alike. The disposition "was void within the statute of perpetuities, as there was no division of the estate into shares, and the real estate vested in the heirs at law, subject to the- life estate of the wife. Monarqw v. Eegua, 53 How. Pr. 438. A testator gave to his three minor children portions of his estate, to be paid to themi when they should severally nttain th<; a?e of twenty-one years, and provided that in case of the death of either child before arriving at that age without issue, its share- II. FUTURE ESTATES. 497 23. SUSPENSION OF POWER OF ALIENATION OR OF ABSOLUTE OWNERSHIP, should go to the survivors or survivor of the children and the issue of a deceased child, and afterwards, in the will, the testator gave to his brothers and sist ;rs the shares of his children in the event that they should all die without issue before arriv- ing at the age of twenty-one years. The gifts to the brothers and sisters depended upon the termination of more than two lives and was void, but such gifts could be dropped without disturbing the valid dispositions of the will. Thomson v. Thomson, 55 How. Pr. 494. Testator left surviving him a wife and brothers and sisters, and by the fifth clause of his will gave his real and personal estate to his wife and two other persons, as execu' tors in trust, to collect the rents and from the proceeds, for six years after his death, to pay bequests to the wife, brothers and sisters, and apply the balance of the income to the payment of incumbrances and taxes on the property, and at the end of six: years to sell all his estate and divide the proceeds among his heirs and next of kin. The clause attempted to suspend the power of alienation for an absolute term and was void, and the property descended to the testator's heirs at law. The whole trust estate and the remainder limited upon it were void. Gano v. McCunn, 56 How. Pr. 337. A trust created over four-fifths of the testator's estate and the proceeds to be con- tinued until the death of the testator's mother and three sisters, was invalid, and the testator died intestate with respect thereto, but the gift of the other one-flfth was held to be suspended for a single life and was valid and separable from the void provision. Oiraud v. Oiraud, 58 How. Pr. 175. Where a trust was void within the statute of perpetuities on account of the suspen- sion for more than two lives, the fact that the persons named died during the testa- tor's lifetime does not cure the invalidity of the devise. Odell v. Toungs.&i How. Pr. 56. See criticisms of this case, Gray's Perpetuities, 164. Chaplin's Perpetuities, 53. Testator directed one-half the interest from his residuary estate to be paid to A. during life and one-half to B. during life; on the death of A. his share should be di- vided between C, D. and E., share and share alike, and upon the death of B. her share of the income should also be divided between C, D. and E., for life. At the death of all these beneficiaries the estate should be given to P., if of age, and if he were a minor, should be held in trust until he arrived at his majority. Although, as a whole, the testator's disposition transgressed the rule against perpetuities, yet the several bequests of income being independent, the invalid portion may be dropped and the residue allowed to stand, so that the provisions to A. and B. are valid, and though there may be doubt as to that for C, D. and E., yet, as upon the death of either, his or her share does not go to the survivoi's, there is no illegal suspension. The provi- sion for P. is void, and after the termination of the interests in favor of A., B. , C, D., and E. the testator died intestate. Leavitt v. Wolcott, 65 How. Pr. 51. Three sisters, Margaret, Mary and Sarah, were equal owners of personal property. Margaret died in 1862 and by will devised on the death of her surviving sister lier lands to executors in trust, until the sale thereof, at such time as they might deem for the benefit of the estate, and gave tliera the proceeds of her land and personal es- tate, not otherwise specifically given, to pay legacies to several charities. Mary, dying in 1865, gave her real and personal estate to her executors after the death of her sis- ter, and the rents of the estate to be sold by them were to be applied to the payment of residuary legacies to charities. The legacies in Margaret's will were made payable within four year.s from the death of the survivor of the sisters. By a codicil Mary di- rected the legacies to charities to be paid within two years from the death of her sis- ter. These wills did not offend the statute against perpetuities. Biker v. City of N. Y. Hospital, 66 How. Pr. 346. 68 498 X. ESTATES IN EXPECTANCY. 24. LIMITATIONS OF CHATTELS REAL. Eeal Prop. L., sec. 39. Limitations of chattels real. — " All the pro- visions contained in this article, relative to future estates, apply to limi- tations of chattels real, as well as of freehold estates, so that the abso- lute ownership of a term of years shall not be suspended for a longer period than the absolute power of alienation can be suspended in respect to a fee." 1 R. S. 734, sec. 33, Banks's 9th ed. 1791, repealed by Real Prop. L., substantially the same. 85. DISPOSITIONS OF RENTS AND PROFITS. Real Prop. L., sec. 50. Dispositions of rents and profits. — " A dis- position of the rents and profits of real property to accrue and be re- ceived at any time subsequent to the execution of the instrument creat- ing aiich disposition, shall be governed by the rules established in this article, for future estates in real property." 1 R. S. 735, sec. 36, Banks's 9th ed., 1793, repealed by Real Prop. L., substantially the same. XI. ACCUMULATIONS. I. STATUTE RELATING TO REAL PROPERTY, p. 499. II. STATUTE RELATING TO PERSONAL PROPERTY, p. 501. in. STATUTES RELATING TO TRUSTS FOR ACCUMULATION, p. 503. IV. RULES AND REFERENCES TO CASES, p. 503. V. CASES DIGESTED, 506. I. STATUTES RELATING TO REAL PROPERTY. Eeal Prop. L., sec. 51. Accumulations. — "All directions for the . accumulation of the rents and profits of real property, except such as are allowed by statute, shall be void. An accumulation of reuts and profits of real property, for the benefit of one or more persons, may be directed by any will or deed sufficient to pass real property as follows : " 1. If such accumulation be directed to commence 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 terminate at or before the expiration of their minority. "2. If such accumulation be directed to commence at any time subse- quent to the creation of the estate out of which the rents and profits are to arise, it must commence within the time permitted by the provisions of this article, for the vesting of future estates, and during the minority of the beneficiaries, and shall terminate at or before the expiration of such minority. " 3. If in either case such direction be for a longer term than during the minority of the beneficiaries, it shall be void only as to the time beyond such minority." 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 estate, as follows : 1. If such accumulation be directed to commence 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 terminate at the expiration of their minority. 3. If such accumulation be directed to commence at any time subsequent 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. 1 R. 8. 736, sec. 37, Banks's 9th ed.l793, repealed by Real Prop. L. If in either of the cases mentioned in the last section, the direction for such accu mulation shall be for a longer term than during the minority of the persons intended to be benefited thereby, it shall be void as respects the time beyond such minority. And all directions for the accumulation of the rents and profits of real estate, except (499) 500 XI. ACCUMULATIONa such as are herein allowed, shall be void. 1 R. S. 726, sec. 38, Banks's 9th ed. 1793 repealed by Real Prop. L. Eeal Prop. L., sec. 52 (L. 1896, ch. 547, sec. 52, taking effect Oct. 1, 1896). " Aaticipation of directed accumulation. — Where such rents and profits are directed to be accumulated for the benefit of a minor entitled to the expectant estate, and such minor is destitute of other sufficient means of support and education, the supreme court, at a special term, or, if such accumulation has been directed bj will, the surrogate's court of the county in which such will has been admitted to pi*obate, may, on the application of his gsneral or testamentary guardian, direct a suitable sura out of such rents and profits to be applied to his maintenance or education." 1 R. S. 736, sec. 39 (passed Dec. 10, 1838, took effect Jan. 1, 1830, repealed L. 1896, ch. 547, sec. 300). Same, except "infants" used for "minor" and the "chancellor" may direct, etc.^ on application of "guardian." Eeal Prop. L., sec. 53 (L. 1896, ch. 547, sec. 53, taking effect Oct. 1, 1896). " Undisposed profits. — When, in consequence of a valid lim- itation of an expectant estate, there is a suspension of the power of alienation, or of the ownership, during the continuance of which the rents and profits are undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the persons presumptively entitled to the next eventual estate." 1 R. S. 736, sec. 40 (passed Dec. 10, 1838, took effect Jan. 1, 1830, repealed L. 1896, ch. 547, sec. 300), same, except "shall be" used instead of "is" and instead of " are." Explanatory note to sec. 53. " Sec. 41 (sec. 40 R. S.). This section is adopted substantially from the work of Mr. Humphreys, to which we have before referred. His reasons for it are thus given : ' A distinction, refined, but substantial, subsists under our law, between estates vested, but defeasable — as a lim- itation to the first son of A., but if he shall die under the age of twenty- one, then to his second son — and a contingent estate as a limitation to such a, son of A., as shall first or alone attain the age of twenty-one. In the latter case, nothing vests, and consequently the rents are undis- posed of, and belong as such to the donor and his heirs, in the interim ; yet there is no doubt but the donor, were this distinction explained to him, would in the latter case as well as in the former, give the accruing rents to the infant donee.' Humphreys on Real Property, 260. A still stronger reason for adopting the section, is furnished by sec. 35 of this Article, which prevents a future estate from being defeated by the determination of the precedent estate before the happening of the con- II. STATUTES RELATING TO PERSONAL PROPERTY 501 tingency, on which the remainder is limited. If that section be adopted and the present omitted, the rents and profits daring the interval be- tween the determination of the prior, and the vesting of the contingent estate, would go to the heirs, contrary to the very plain intention of the person creating the estate. As the law now is, the rents, etc., may be, and generally are, preserved to the remaindermen, by the intervention of trustees. But to dispense with the necessity of creating such trustees, is one of the benefits we propose to attain." Eeviser's Notes; 3 R. S. 678-9 (2d ed.). II. STATUTES RELATING TO PERSONAL PROPERTy, Laws 1897, eh. 417 (Genl. L., eh. 47, took effect Oct. 1, 1897), sec. 1. Short title ; definition. — " This chapter shall be known as the personal property law. The term 'income of personal property,' as used in this article, means the income or profits arising from personal property, and includes the interest of money and the produce of stock." Sec. 4. Validity of directions for accumulation of income. "An accumulation of the income of personal property, directed by any instrument sufficient in law to pass such property is valid : 1. If directed to commence from the date of the instrument, or the death of the person executing the same, and to be made for the benefit of one or more minors, then in being, or in being at such death, and to terminate at or before the expiration of their minority. 2. If directed to commence at any period subsequent to the date of the instrument or subsequent to the death of the person executing it, and directed to commence within the time allowed for the suspension of the absolute ownership of personal property, and at some time dur- ing the minority of the persons for whose benefit it is intended, and to terminate at or before the expiration of their minority. All other directions for the accumulation of the income of personal property, not authorized by statute, are void ; but a direction for any such accumulation for a longer term than the minority of the persons intended to be benefited thereby, has the same effect as if limited to the minority of such persons, and is void as respects the time beyond such minority." 1 R. 8. 773, 774, sees. 3, 4, Banks's 9th ed. N. Y. R. S. pp. 1857, 1858 (took effect Jan. 1, 1830, repealed by L. 1897, ch. 417). Sec. 5. Anticipation of directed accumulation. "When a minor, for whose benefit a valid accumulation of the income of personal prop- erty has been directed, shall be destitute of other sufficient means of 502 XI. ACCUMtrLATIONS. support or education, the supreme court, at special term ia any case, or, if such accumulation shall have been directed by a will, the surro- gate's court of the county in which such will shall have been admitted to probate, may, on the application of such minor or his guardian cause a suitable sum to be taken from the moneys, accumulated or directed to be accumulated, to be applied for the support or education of such minor." 1 R. S. 774, see 5, Banks's 9th ed. N. T. R. S. 1858, am'd L. 1891, ch. 173, re- pealed L. 1897, ch. 417. in. STATUTES RELATING TO TRUSTS FOR ACCUMULATION. Eeal Prop. L., sec. 76. Purposes for which express trusts may be created. — " An express trust may be created for one or more of the following purposes : ***** « " 4. To receive the rents and profits of real property, and to accumu- late the same for the purposes and within the limits prescribed by law." 1 R. 8. 728, sec. 55, Banks's 9th ed. p. 1797, repealed by Real Prop. L. "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 title." IV. RULES AND REFERENCES TO CASES. 1. An accumulation may be directed for the benefit of one or more minors in being. Kilpatrickv. Johnson, 15 N. T. 333, 335. 2. An accumulation may be directed for the benefit of minors tO' come into being. Manice v. Manice, 43 N. Y. 303, 374, 376; Mason v. Mason's Exrs., 3 Sandf. Ch. 433, aff'd 3 Barb. 329; see Kilpatrickv. Johnson, 15 N. Y. 323, 325. 3. An accumulation can not begin before the minor for whose benefit , it is created is in being. Manice V. Manice, 43 N. Y. 303, 37G; Kilpatrickv. Johnson, 15 id. 332; Haxtun ,T. Corse, 3 Barb. Ch. 518; Cook v. Lowry, 95 N. Y. 103, 107; Cochrane v. Schell, 140 id. 516. 4. Such accumulation must commence and end within the time per- mitted for the vesting of future estates, viz., two lives in being at the- creation of the estate, except as stated in the next rule, and the rales relating to the vesting of future estates are applicable. Jennings v. Jennings, 7 N. Y. 547; Harris v. Clark, id. 343; Manice v. Manice, 43 id. 305, 375; Garvey v. McDevitt, 72 id. 556; Smith v. Edwards, 88 id. 233; Hob- son V. Hale, 95 id. 588; Rice v. Barrett, 103 id. 161; Clemens v. Clemens, 60 Barb. 366; Thompson V. Clendining, 1 Sandf. Ch. 387; Matter of Starr, 2 Duer, 141; Mat- IV. EULES AND REFERENCES TO OASES. 503 ter of Masterton, 4 Sandf. 443; Wells v. Wells, 30 Abb. N. 0. 335; Bean v. Bo wen, 47 How. Pr. 306. 5. In the case of real property, in the single instance provided for in former section sixteen, now a part of section thirty-two, the period of two lives is extended by an additional minority. Manice v. Manice, 43 N. T. 305, 374-6. 6. But such provision for an additional minority does not apply to personal property. Harris v. Clark, 7 N. Y. 343; Manice v. Manice, 43 id. 305, 381-3. 7. Such accumulation must also terminate at or before the expira- tion of the minority of the person for whom the accumulation is created. Harris v. Clark, 7 N. T. 342; Cook v. Lowry, 95 id. 103, 107; Matter of Hoyt, 71 Hun, 13: Estate of Ruppert, Tucker, 480. 8. An accumulation is only permitted for living objects, and hence a direction for an accumulation becomes inoperative upon the death of the minor. Goebel. V. Wolf, 113 N. Y. 405, 415; Bryan v. Knickerbacker, 1 Barb. Oh. 409. 9. When the period of accumulation ceases, the accumulated fund must be released from further restraint and paid over to the person for whose benefit the accumulation is directed. Pray v. Hegeman, 93 ZST. Y. 508, overruling Meserole v. Meserole, 1 Hun, 66. See Robison v. Robison, 5 Lans. 165. 10. But a direction for an accumulation for a longer term than dur- ing the minority of the beneficiary shall be void only as to the time beyond such minority. Oilman v. Reddington, 24 N. Y. 9 ; Hull v. Hull, 35 id. 647 ; Hetzel v. Barber, 69 id. 1 ; Schermerhorn v. Cotting, 131 id. 48, 61; Forsyth v. Rathbone, 34 Barb. 388. 11. But this only applies in case the direction for accumulation is otherwise valid. Simpson v. English, 1 Hun, 559 ; Bean v. Bowen, 47 How. Pr. 306. 12. An accumulation must be solely for the benefit of an infant. • Harris v. Clark, 7 N. Y. 343 ; Kilpatrick v. Johnson, 15 id. 323 ; Pray v. Hege-' man, 93 id. 508 ; Cook v. Lowry, 95 id. 103 ; Barbour v. DePorrest, id. 13 ; Scher- merhorn V. Cotting, 131 id. 48 ; Cochrane v. Schell, 148 id. 516 ; Matter of Dey Ermand, 34 Hun, 1 ; McCormack v. McCormack, 60 How. Pr. 196 ; McGrath v. Van Stavoren, 8 Daly, 454 ; Oilman v. Healy, 1 Dem. 404 ; Boynton v. Hoyt, 1 Denio, 53 ; King v. Rundle, 15 Barb. 139 ; Matter of Sands, 35 N. Y. St. Rep. 850 ; Bryan v. Knickerbacker, 1 Barb. Ch. 409 ; Hawley v. James, 16 Wend. 61, 63. 13. Accumulation to pay off an indebtedness. Matter of Hoyt, 71 Hun, 13; Bean v. Hochman, 31 Barb. 78; Morgan v. Master- ton, 4 Sandf. 443 ; Wells v. Wells, 30 Abb. N. 0. 335. To erect a statue or building. Wilson V. Lynt, 30 Barb. 134. 604 SI. ACCUMULATIONS. For the benefit of a lunatic Craig V. Craig, 3 Barb. Ch. 76. To found a school. Yates V. Yates, 9 Barb. .324. 14. Discretionary power to trustees to make a disbursement of income for the preservation or efficiency of trust property, is valid. Matter of Nesmith, 140 N. Y. 609. 15. A mere contingent limitation of an estate in favor of a minor on his coming of age, will not sustain a trust or direction for accumulation during his minority. Manice v. Manice, 43 N. Y. 305, 877 ; Pray v. Hegeman, 93 Id. 508, 519 ; Matter of Estate of Hoyt, 71 Hun, 13. 16. Condition — payment of accumulated income on. Hull V. Hull, 24 N. Y. 647 ; Schettler v. Smith, 41 id. 328. 17. Annuities and legacies — ascertainment of amount of, by adding principal to amount of interest which should have been paid to legatee during minority. Titus V. Weeks, 37 Barb. 136. 18. A legacy given with direction that the income shall accumulate, may be valid, although the direction for accumulation be void. Williams v. Williams, 8 N. Y, 535 ; Kilpatrick y. Johnson, 15 id. 333 ; Dodge v. Pond, 23 id. 69 ; Pray v. Hegeman, 92 id. 508 ; Forsyth v. Rathbone, 34 Barb. 388 ; McCormack v. McCormack, 60 How. Pr. 196 ; Lange v. Ropke, 5 Sandf. 363 ; Haw- ley V. James, 16 Wend. 63, 63 ; Wells v. Wells, 30 Abb. N. C. 335. Legacies limited to take effect after a too remote period of accumula- tion, from the accumulated fund, are void. Bean v. Bowen, 47 How. Pr. 306. 19. Annuities and legacies — payment of from income. Dodge V. Pond, 23 N. Y. 69; Eadley v. Kuhn, 97 id. 26, 31; Cochrane v. Schell, 140 id. 516; Mason v Mason's Exrs., 3 Sandf. Ch. 477; 3 Barb. 239; Bean v. Bowen, 47 How. Pr. 306. 20. Property given in perpetuity to religious or charitable institutions. Williams v. Williams, 8 N. Y. 535; Clemens v. Clemens, 60 Barb. 866; Matter of Starr, 3 Duer, 141. 21. Gift to municipal officers. Iseman v. Myres, 26 Hun, 651. 22. Conflict of laws. Clemens v. Clemens, 60 Barb. 366. 23. The fund arising from an accumulation can not be held as capi- tal under a trust after the beneficiarv reaches his majority. Brandt v. Brandt, 13 Misc. 431; Pray v. Hegeman, 93 N. Y. 508; Barbour v. DePor- test, 95 id. 13, 16. See, Meserole v. Meserole, 1 Hun, 66, overruled by Pray v. Hegeman, 92 N.Y. 508; IV. EULES AND REFERENCES TO CASES. 505 Greer v. Chester, 63 Hud, 339; Tweddell v. N. Y., L. & T. Co., 83 id. 603; Robison V. Robison, 5 Lans. 165. 24. If the division of an estate be postponed, an acoumulation arises by operation of law, if there be no disposition of the rents and profits. Vail V. Vail, 4 Paige, 317; 7 Barb. 336; Coaverse v. Kellogg, id. 590. 25. Whether direction for accumulation will be implied. Kilpatrick v. Johnson, 15 N. Y. 333; Dodge v. Pond, 33 id. 9; Cochrane y. Schell, 140 id. 516; Gilman v. Reddington, 34 id. 9; Hendricks v. Hendricks, 3 App. Div. 604; Craig v. Craig, 3 Barb. Ch. 76. 26. When implied trust to accumulate income was void. Haxtun v. Corse, 3 Barb. Ch. 506; Craig v. Craig, 3 id. 76. 27. Whether in the case of several minors the accumulation upon the share of each terminated at his majority. Savage v. Buvnham, 17 N. Y. 561. 28. Income accruing without directions contained in the will. Livingston v. Tucker, 107 N. Y. 549; Hendricks v. Hendricks, 3 App. Div. 604; Craig V. Craig, 3 Barb. Ch. 76. See Beardsley v. Hotchkiss, 96 N. Y. 201, 317, 318. 29. Income accruing by force of Judicial proceedings, Livingston v. Tucker, 107 N. Y. 549. 30. Provision for payment of income to an infant when of age did not create an accumulation. Horton v. Cantwell, 108 N. Y. 355. 31. Fact that income is not needed for the support of a cestui que trust, and may in fact be invested and accumulated, although there be no di- rection therefor, is not a case of accumulation contemplated by the statute. Horton v. Cantwell, 108 N. Y. 355, 365; Hendricks v. Hendricks, 3 App. Div. 604; Craig V. Craig, 3 Barb, Ch. 76; Livingston v. Tucker, 107 N. Y. 549; Gasquet v. Pol- lock, 1 App. Div. 513. 32. Where direction for accumulation became inoperative as bene- ficiaries were adults at the testator's death. Oxley V. Lane, 35 N. Y. 340. 33. Direction to accumulate income on a sum until it reached another fixed sum. Manice v. Manice, 43 N. Y. 305; King v. Bundle, 15 Barb. 139; Yates v. Yates, 9 id. 334; Wells v. Wells. 30 Abb. N. C. 335. 34 Using income to restore depleted or failing principal. Livingston v. Tucker, 107 N. Y. 549; Grant v. Grant, 3 Redf. 383. 35. Where the infant died after arriving at majority, the fund accumu- lated to the time of such death devolves upon his heirs or next of kin. Barber v. DeForrest, 95 N. Y. 13; Pray v. Hegeman, 93 id. 508; 98 id. 351; Gilman v. Healy, 1 Dem. 404. 506 XI. ACCUMULATIONS. 36. And so if the infant die under age and there be no other dispo- sition of the fund by the creator of it, it devolves on the infant's heirs or next of kin. Goebel v. Wolf, 113 N. Y. 405; Smith v. Parsons, 146 id. 116; Gilman v. Healey, 1 Dem. 404; Draper v. Palmer, 37 St. Rep. 510. 37. The testator may provide that in case of the death of the infant before majority, the accumulated fund shall pass to the other benefici- aries. Roe V. Vingut, 117 N. Y. 504, 217; Smith v. Parsons, 146 id. 116; Willets v. Titus, 14 Hun, 554; Gilman v. Healey, 1 Dem. 404, 408; Bolton v. Jacks, 6 Robt. 166. 38. Where there is no direction or an invalid direction for the ac- cumulation of interest upon money, or of the rents of real property, the income belongs to the persons presumptively entitled to the next event- ual estate in the principal. Kilpatrick v. Johnson, 15 N. Y. 333; Dodge v. Pond, 33 id. 69; Gilraore v. Red- dington, 24 id. 9; Schettler v. Smith, 41 id. 328; Maaice v. Manice, 48 id. 305 (mean- ing of next eventual estate); Embury v. Sheldon, 68 id. 337; Pray v. Hegeman, 98 id. 508; Cook V. Lowry, 95 id. 103 (personal property); Radley v. Kuhn, 97 id. 36, 31; Delafield v. Shipman, 103 id. 468, rev'g 34 Hun, 514; Matter of Grossman, 113 N. Y. 503; Cochrane v. Schell, 140 id. 516; Matter of DeyErmand, 34 Hun, 1; Gould v. Rutherford, 79 id. 280; McGrath v. "Van Stavoren, 8 Daly, 454; Grant v. Grant, 3 Redf. 283; Matter of Sands, 30 N. Y. St. Rep. 850; Robison v. Robison, 5 Lans. 165. 39. The last rule is applicable in respect to income of personalty only when such income is derived from some specified fund, or is distin- guishable from that of all the other property ; otherwise the income not validly disposed of goes to the next of kin. Dodge V. Pond, 33 N. Y. 69. 40. When accumulated fund or surplus income vested in heirs at law or next of kin. Rice V. Barrett, 103 N. Y. 161; Hendricks v. Hendricks, 3 App. Div. 604; Haxtun v. Corse, 3 Barb. Ch. 506; Yates v. Yates, 9 Barb. 334. 41. A cestui que trust for whose benefit income is to be applied has the title of any income not needed for necessary expenses. Gasquet v. PoUock, 1 App. Div. 513; Hendricks v. Hendricks, 3 id. 604. 42. Although direction for accumulation be void, other independent provisions of the will are not aSected. Lange v. Ropke, 5 Sandf. 363; Bolton v. Jacks, 6 Robt. 166; McGrath v. Van Sta- voren, 8 Daly, 454; Grant v. Grant, 8 Redf. 383; Schermerhorn v. Cotting, 131 N.Y. 48, 61; Wells v. Wells, 30 Abb. N. C. 335. V. CASES DIGESTED. Where the scheme of the will was that the income of the testator's estate, real and personal estate, after payment of debts, should be ap- plied to the clothing and maintenance of his wife, and the clothing, V. CASES DIGESTED. 507 maintenance and education of his children by her, and the surplus was to be invested by the wife as trustee for the children ; the property was all to be kept together, undivided, until the eldest surviving child, by his present wife, should become twenty-one years old, and then to be appraised, and his or her equal share apportioned, and paid if required ; held, the statute (1 E. S. 723, sec. 15) was contravened because the three eldest of the four children living at the testator's death might die before the fourth arrived at her majority, and thus the estate would be kept together and the power of alienation be suspended during three lives. Jennings v. Jennings, 7 N. Y. 547. Testamentary dispositions by which either real or personal estate is set apart, a portion of the income of which is to accumulate until the happening of a contingency which may not occur at the termination of two lives in being at the death of the testator, are in violation of the Revised Statutes and void. If of real estate they are not authorized by sees. 55 and 37, tit. 2, ch. 1, part 2, and are void as suspending the absolute power of alienation for more than two lives. 1 E. S. 723, sec. 15. If of personal estate they are in violation of tit. 4, ch. 4, part 2, as suspending the absolute ownership for more than two lives, and also as directing an accumulation not limited in continuance to the minority of the ultimate beneficiaries. IRS. 773, sees. 1, 3, 4. An accumulation of either real or personal estate which is not forth© benefit of minors, and to terminate with their minority, is void. Where the material provisions of a will are illegal and they can not be separated from the other parts without defeating the testator's general scheme, the whole will be declared void, and the property be disposed of as if the testator had died intestate.' The testator left a legacy of $30,000 to trustees, out of which to pay an annuity of $700 to his sister for life, with remainder to her daughter for life, and to accumulate the residue of the income until the decease of the daughter, when the fund should go to her issue, and in default of issue, to a nephew on his attaining his full age, or to his issue if he died before his full age, and in default of issue, with remainder over to other beneficiaries. Construction : This was void, both as suspending the absolute ownership for more than two lives, and as providing for an accumulation not to terminate with the minority of the beneficiaries. ■ See pp. 380, 407. 508 XI. ACCUMULATIONS. Same will: He left another legacy of $30,000 to the trustees, out of which to support aud educate his nephew and to accumulate the residue of the income and to pay it over to him on his attaining the age of twenty -one years, and in case of his death before that age to his' issue, and in de- fault of issue, tlien on the death of Lucy Harris to her issue if any, and if she died without issue, over to other beneficiaries. Construction : This was void for the same reasons. Same will: He left three other legacies of $5,000 each, to accumulate during the minorities of the legatees and to be paid them on their attaining their full age, but in case of either of their deaths before their full age, the legacies were to accumulate until the death of his sister and her daugh- ter and then be divided between the issue of the daughter and his nephew, with remainder over. Construction : This was void for the same reasons, Harris v. Glark, 7 N. Y. 242. The provisions of the Eevised Statutes, "Of accumulations of per- sonal property and of expectant estates in such property,'' do not aflEect property given in prepetuity to religious or charitable institutions. Where a legacy is given to a religious corporation for a purpose authorized by law, but with a direction that it accumulate until it reaches a certain sum before its income shall be expended, the direction only is void, and the legacy is not defeated. Williams v. Williams, 8 N. Y. 525, digested p. 854. Citing, Lade v. Holford, 1 Wm. Blackstone R. 438 ; 3 Burr, 1416, S. C; Thomp- son V. Thompson, 1 Collier, 381, 400 ; Lang v. Ropke, 5 Sandf., S. C. R., 363, 371 ; DeKay v. Irving, 5 Denio, 646 ; Root v. Stuyvesant, 18 Wend. 257. A testamentary gift to children, made to take effect upon the termi- nation of a particular estate, or upon the death of a third person, is a be- quest to children as a class, and embraces not only the objects living at the death of the testator, but all who may subsequently come into exist- ence before the period of distribution. Therefore, a direction in a will for the accumulation of the interest upon money, during the life of the testator's daughter and that the interest so accumulated should, on the death of the daughter, be paid to her children, is void under 1 R. S. 773, sec. 8, because not made for the benefit of persons in being at the time V. CASES DIGESTED. 509 of the testator's death, and because the children are not required by the terms of the will to be minors at the death of the testator, or while the interest is accumulating. Such direction is not the less void because it makes the duty of ac- cumulating the interest contingent upon the lives of the husbands of the testator's daughters, and their ability to support and maintain their wives. A void trust for the accumulation of the income of personal property does not invalidate a bequest of the principal where the direction for such accumulation does not involve an illegal suspension of the abso- lute ownership. The direction only is void, and the income received belongs to the persons presumptively entitled to the next eventual estate in the principal of the fund. Kirlcpatrick v. Johnson^ 15 IST. Y. 322. A trust provided for no unlawful accumulation, as it ceased as to each share upon the sons and daughters attaining their majorities, re- spectively. Savage v. Burnham, 17 N. Y. 561, digested p. 415. A testator, without violating any law, may not only suspend the ab- solute ownership of his estate during the continuance of any two lives in being at his death, but may dispose of the income annually as it accrues during this period of suspension. He may also give vested legacies, and provide for their payment at future definite periods. It is no violation, therefore, of the statute against accumula;tions, for a testator, after rendering his estate inalienable for two lives, to give pecuniary legacies, payable at future periods, in such manner as to show that he intended they should be paid exclusively from income as it should accrue, leaving the corpus of the estate to pass unimpaired to the residuary legatee. If the legacies are so adjusted as to warrant the inference that the testator intended an accumulation of income, although this implied di- rection to accumulate is void, yet no provision of the will which can be executed independently of it is thereby aBEected, but it is the duty of the executors to distribute the surplus of income accruing in any year among the persons entitled thereto. The statute (1 R S. 726, sec. 40) giving, to the persons presumptively entitled to the next eventual estate, income accruing during a suspen- sion of the absolute ownership, and of which no disposition or valid accumulation is directed, is applicable in respect to the income of per- sonalty only where such income is derived from some specific fund, or is distinguishable from that of all other property. Accordingly where, as in this case, no interest was given to the residu- ary legatees in that portion of the estate devoted to the payment of specific legacies, and the latter are payable out of both income and 510 XL ACCUMULATIONS. priucipal, the surplas accruing in any year belongs not to the residuary legatees, but to the next of kin. The executors had no power to anticipate the payment of legacies on a rebate of interest during the period in which, according to the testator's intention, the legacies are to be paid from income. Such bequest is, it seems, also void for indefiniteness as to the object, and because, after the application of the money by the executors, no provision is made as to the ownership of the property into which it may be converted, or for the substitution of competent trustees in place of the executors. Dodge v. Pond, 23 K Y. 69 ; 28 Barb. 121. The will directed a certain portion of income to be accumulated, without restricting the period to the minority of the children. This provision being void as to the income after the termination of such minority, the surplus goes, it seems, to the children as presumptively entitled to the next eventual estate. Oilman v. Beddington, 24 N. Y. 9. See Kilpatrick v. Johnson, 15 N. Y. 333. Bequest of personal property to executors in trust to pay an annuity of five hundred dollars, to be increased in their discretion to one thou- sand dollars, to the testator's son till he attained the age of thirty, and to pay all that should remain of principal and accumulated income to the son upon the condition that he should then, in the opinion of the executors, be solvent The executors renounced. Construction : The provision for the accumulation of income during the interval between the son's majority and the age of thirty years is void, and the income for that period goes as in case of intestacy. Hull v. Hall, 24 N. Y. 647. The residue of the estate, subject to bequest, was given to four sons, but to be kept until the youngest of them, or youngest survivor of them, should become of age, then the use of personal to be paid them, but principal to be forborne for twenty-five years after testator's death, and the real estate to be entered upon and enjoyed, etc. At testator's death the sons were all adults and the direction for accumulation be- came inoperative. Oxley v. Lane, 35 N. Y. 340. The testator vested in his executors a portion of his property, in trust, to pay a fixed sum annually from the rents and an income thereof to his daughter, until her marriage ; and on her marriage, in case she do not marry one S., or on the decease of said S., to pay her the whole of said rents and income during her life ; and in case she marry the said S., the annuity to cease during her said coverture; the daugh- ter had been paid, for several years, the said fixed sum annually, V. CASES DIGESTED. 511 and then married tlie said S. There being no provision for the accu- mulation of the surplus of the rents and income of the said property over and above the said annual sum, previous to her marriage or the death of S., she was entitled to the same under the Revised Statutes (1 R. S. 726, sec. 40) as the person (before her marriage with S.) pre- sumptively entitled to the next eventual estate in the income. Daniels and Lott, JJ., contra. Schettler v. Smith, 41 K Y. 328. Direction to accumulate income of $5,000 until it should be $30,000, is of doubtful validity ; the direction is precatory and raises no trust Manice v. Manice, 43 K Y. 305, 387. By " next eventual estate " the statute does not mean the ultimat- estate, but the next estate that will arise upon the happening of the event that shall terminate the preceding estates, during which the accue mulation was to take place. Manice v. Manice, 43 N. Y. 305, 385. A mere contingent limitation of an estate in favor of a minor on his coming of age would not be sufficient to sustain a trust or direction for accumulation during his minority. If the estate limited to the infant is contingent, an accumulation of the income during his minority can not be said to be for his benefit. But a devise of lands to an infant when he shall become of age, with remainder over, if he die under age, creates a vested estate in the infant, defeasible by condition subsequent, and this is a sufficient title to sus- tain an accumulation during the minority of such infant, as being for his benefit. Manice v. Manice, 43 K Y. 305, 377-379. Devise to 0. for life, remainder to G.'s child, unborn at creation of es- tate, to O.'s issue if it die under age leaving any. A direction to ac- cumulate the rents during the minority of such unVjorn remainderman and for his benefit, if he should be in being and an infant when the pre- cedent estate ceases and the accumulation begins, is authorized; but an accumulation for the benefit of an unborn child, to commence before its birth, is never permitted. Manice v. Manice, 43 K Y. 305, 374-6. Upon the assumption that rents and profits were undisposed of, and that no provision was made for their accumulation, they went, by virtue of 1 R. S. 726, sec. 40, to one presumptively entitled to the next event- ual estate. Embury v. Sheldon, 68 N. Y. 227. Direction for accumulation until a daughter reached the age of twenty- five years was valid only until she arrived of age. Eetzel v. Barber, 69 N. Y. 1. Direction to executors to collect rents for four years and then sell land and pay over to B. upon certain trusts, was an attempt to create an active trust and invalid, and could not be maintained as a power in trust. Oarvey v. McDevitt, 72 N. Y. 556. 512 XI. ACCUMULATIONS. The testator further directed that $30,000 be " kept invested until my youngest grandchild, now bom, or that may hereafter be born be- fore the iinal distribution of my estate, shall be of full and lawful age," and that his executor should, out of the income thereof, pay for repairs to stones in a cemetery lot, and make up any deficiencies in the funds provided for the payment of legacies, and that they might, from time to time, after five years from the time of his death, make division and dis- tribution of any surplus that might then be in their hands, and also, if they should see fit at the same time, divide and distribute $10,000 of said principal and bonds, thus invested, between his children and grand- children, and that the remaining $20,000 should be divided among them when the youngest grandchild, born, and that might within twenty years be born, should arrive at full age, or, if a granddaughter, should be sooner lawfully married. Construction : The clause involved a violation of the statute against the accumula- tion of income, and of the statute against the suspension of the absolute ownership of personal property, and, as the part which was good could not be separated from that which was bad, the whole was rejected. Smith V. Edwards, 88 N. Y. 92, rev'g 23 Hun, 223. The Eevised Statutes (1 R S. 726, sec. 37 ; id. 773, sec. 3) author- izing an accumulation of the income of real and personal property for the benefit of minors, requires that the accumulation shall be for the benefit of a minor solely and during his minority, and that, when the period of accumulation ceases, the accumulated funds shall be released from further restraint and paid over to the person for whose benefit the accumulation is directed. Direction for accumulation during minority, and gift of income of ac- cumulated fund, thereafter to the minor for life and then the principal to others, is void. 1 R. S. 726, sec. 38. M., by will, gave his residuary estate to his executors, to be divided into shares as specified, a share to be held in trust during the life of each child of the testator who should survive him. After authorizing expenditure of a portion of the rents and profits of such share for the child's support and education, there was a direction that the balance of such income should from time to time be added to the share, and accu- mulated as principal until the child's majority and thereafter the whole- of the income paid quarterly over to the child, and that upon the death of any child the whole of the original share of the one so dying, to- gether with the accumulations, should go to his or her issue, or in de- fault of issue, as provided. V. CASES DIGESTED. 513 Oonsti-uction : The provision for capitalizing tlie income and paying the income thereof to the child for life and then over, was void ; hence, each child took a life estate in the share which would carry the accruing income, and any income accruing during minority belonged to the child and could be reached by his creditor. Under 1 E. S. 726, sec. 40, providing that when, in consequence of a valid limitation of an expectant estate, there is a suspension of the power ot alienation or ownership, during which the rents and profits are undisposed of, they " shall belong to the persons presumptively entitled to the next eventual estate," the provision of the will might be treated as creating an equitable expectant life estate in the same after his arrival at majority, and so constituting the " next eventual estate." Pray v. Hegeman, 92 K Y. 508, rev'g 27 Hun, 603. Overruling, Meserole v. Meserole, 1 Hun, 66; Barbour v. DeForrest, 38 id. 615. Citing, Hawley v. James, 5 Paige, 318; 16 Wend. 114, 141, 183; Boynton v. Hoyt, 1 Denio, 54; Kilpatrick v. Johnson, 15 N. T. 326; Manice v. Manice, 43 id. 303; Lang V. Ropke, 5 Sandf. 363; Vail v. Vail, 4 Paige, 331. Note 1. "The statute regulating the accumulation of income of personal property is substantially the same as that relating to the accumulation of rents and profits of land." (518.) (See distinguishing features Manice v. Manice, 43 N. Y. 305, 381-3.) NoTB 3. "The revisers, as they dectere (5 Edm. Stat. 573), intended by section thirty-seven to limit the power' of accumulation to one of the four cases specified in the statute of George III, viz., 'during the minority of any person who, under the deed or will directing the accumulation, would then, if of full age, be entitled to such rents and profits.' " Note. 3. " The general policy of our law favors the greatest freedom of alienation of property consistent with the necessities of families, and the making of reasonable provision for the various contingencies which may be expected to arise requiring the postponement of the vesting of estates, and the suspense of the power of alienating the corpus of property is permitted only within narrow limits. But the right to direct the accumulation of the fruits and profits of property is much more restricted than the right to control the property itself. It is permitted only in a single case and for a single purpose, viz., during minority, and for the benefit of the minor during whose minority the accumulation is directed. The main purpose of the thirty-seventh section of the statute was not to limit the term of accumulation previously permitted. The legislature intended to uproot the doctrine that the rents and profits of property might be accumulated and the enjoyment postponed, with a single exception. This was accomplished by sections thirty-seven and thirty-eight. The exception in section thirty-seven must be construed in view of the general policy of the legislature, and the particular policy upon which the exception proceeded." (514-515.) Note 4. "The policy and language of the statute require, in order to sustain a direction for accumulation under section thirty-seven, that the accumulation must be for the sole benefit of the minor, and that this can only be true where the accumu- lated fund is given over to him absolutely when the period of accumulation ceases," (517.) 65 514 XL ACCUMULATIONS. The provisioa of the Revised Statutes (1 R S. 716, sec. 40), declaring that when in consequence of a valid limitation of an expectant estate in lands, there shall be a suspense of the power of alienation or of the ownership, daring which the rents and profits shall be undisposed of, and there is no valid direction for their accumulation, such rents and profits shall belong to the person presumably entitled to the next event- ual estate, is made applicable to the accumulations of income of per- sonal property by the provision of said statutes (i R S. 773, sec. 2), de- claring that, save as specified " limitations of future or contingent estates in personal property shall be subject to the rules prescribed * * * in relation to future estates in lands." The will of L. gave to his executors one-fourth part of his residuary estate, real and personal, to be held in trust during the life of his daughter G., with directions to pay to her the income upon $25,000 thereof, and to invest the residue of the income ; upon her death, in case she left issue surviving, he gave the principal and accumulated in- come to such issue, and in default of issue to his sons. G. married after the death of the testator and is still living ; plaintiff is the sole issue of the marriage. In an action for the construction of the will it appeared that a fund had accumulated under this provision, a large portion of which was the income of personal property ; held, that the direction for accumulation was void (1 R. S. 726, sec. 37-; id. 773, sec. 2); that the accumulations belonged to plaintiff as " the person presumably entitled to the next eventual estate." Vail V. Vail, 4 Paige, 317, and Hull v. Hull, 24 N. Y. 647, over- ruled ; Oook V. Lowry, 95 id. 103. W., by will, gave a portion of his residuary estate to his executors, in trust, to receive and apply the income to the use of the plaintifif during life. By a codicil, the executors were directed, if in their judg- ment the whole of the income was not needed for plaintiff's support, to retain and invest the residue during her minority, the accumulations to be considered and treated as part of the principal. Construction : Under 1 R S. 726, sees. 37, 38 ; id. 773, sec. 3, the direction for the accumulation was void, and plaintiff was entitled to the whole income. Barbour v. DeForrest, 95 N. Y. 13, rev'g 28 Hun, 615. Devise to executors, in trust, to receive rents and profits and there- from pay 700 to each of two grandsons when of age, in case of death of either, to the survivor ; trust to continue until testator's son C. be- came twenty-five years of age, when he was to have net income less the $1,400 for life ; if he left children, estate to become theirs in fee whea V. CASES DIGESTED. SIS' of age. C, as owner of the next eventual estate, took surplus of the income arising during trust term ; C.'s children, if any, would take fee, and in case of their death under age, the fee would vest in their heirs ; if G. died without issue, the fee would vest in testator's heirs. It was erroneously claimed that the trust was void, as it was contended that it must continue until $1,400 was realized for the grandsons. Ead- ley V. Kuhn, 97 N. Y. 26, 31. A will, after various legacies and devises, and after providing for the payment of life annuities to twelve different persons, contained this provision: "As to the residue and remainder of all my estate, both real and personal, not herein otherwise disposed of, it is my will that the same be and remain in the care and custody of my said executrix, and executors, and trustees, and their successors, well and safely in- vested, until the decease of the last survivor of the life annuitants * * * and that then> the said residue and remainder with all the accumulated interest thereof shall be divided equally among my grandchildren, per stirpes^ Construction : The said clause was repugnant to the provision of the Revised Stat- utes prohibiting accumulations, except for the times and purposes therein expressly permitted. (1 R. S. 726, sees. 37, 38.) Hohson v. Hale^ 95 N. Y. 588. By the will of B. and a codicil thereto, his residuary estate was left in trust for the benefit of his children and grandchildren, the interest thereon to be invested and kept together for ten years after the death of the testator, at which time the estate was directed to be divided ; the portions given to his children " to be held for and during their natural lives, respectively ;" remainder to their children. Construction : The trust was in contravention of the statute prohibiting a suspen- sion of the power of alienation for a longer period than during two lives in being at the creation of the estate (1 R. S. 728, sec. 15) ; and, as the accumulated fund furnished the only support for the devisees subsequently made, the whole scheme of distribution failed, and the title to the residuary real estate upon the death of the testator vested in his heirs at law, as in case of intestacy. Rice v. Barrett, 102 N. Y 161^ digested p. 450. See, also, Lee v. Tower, 134 N. Y. 370 ; Potter v. McAlpin, 3 Dem, 108 ; Bean v. Bowen, 47 How. Pr. 306. The will of L. gave a life estate in two-twentieths of his property to 516 XI. ACCUMULATIONS. his widow, the remaiader over to his infant daughter M. in case she survived her mother ; if not, then to certain other beneficiaries in the order named. In an action for partition of certain real estate of which said testator died seized, commenced during the minority of M., and wherein she was made a party defendant, the judgment directed a sale of the premises. The testator's widow was given the liberty to accept, and did accept, out of the proceeds of sale, a gross sum in lieu of her interest as tenant for life, and the balance of the purchase money of the two twentieths was directed to be paid into court, to be invested by the chamberlain of the eity of New York, and, upon the death of the life tenant, the fund " with all accumulations of interest, dividends or in- come," to be paid to M., if then living; if not, then to the beneficiaries entitled under the will to take. Upon coming of age M. petitioned that the accumulation be paid over to her on the grounds that such accumu- lation was prohibited by statute. (I R S. 726, sees. 37, 38), and that she was entitled thereto " as presumptive owner of the next eventual estate." Construction : The matter of the disposition of the fund was directly involved in the action and was res adjudicata ; and, therefore, the petition was prop- erly denied. It seems that the directions for accumulation were proper, as the will did not contain any directions authorizing it (1 R S. 726, sees. 37, 38; Pray v. Hegeman, 92 N. Y. 508), and as the income was paid oS in advance out of the principal, when subsequently received, it was properly devoted to restoring said principal to the condition it would have been if it had not been thus depleted. Livingston v. Tucker, 107 N. Y. 549. Trust to pay the income of the residue to or for the benefit of her daughter 0., during life ; so much of the income as should be necessary to be applied to her support and education during her minority ; and after that time the income to be paid to her ; upon her death the re- mainder to go to her issue. Construction : So much of the income, if any, as was not required for plaintifif's sup- port during her minority, was payable over to her when of age, and so there was no direction for accumulation. Horton v. Cantwell, 108 N. Y. 255. The provision for accumulation became inoperative as to the share of a deceased minor child ; upon his death its share of an estate devolved V. CASES DIGESTED. 517 upon its heirs at law and next of kin, who were entitled to a proportionate share of the income already accumulated or to accrue. An accumula- tion is only permitted for the benefit of living objects. (Bryan v. Knickerbocker, 1 Barb. Ch. 409.) Goebel v. Wolf, 113 N. Y. 405, 415. The will contained no direction as to the disposition of the income of. the residuary estate until H. reached the age of twenty-eight. Construction : Under the Eevised Statutes (1 E. S. 726, sec. 40), the rents and prof- its of the real estate were payable as they accrued to H., he being pre- sumptively entitled to the next eventual estate, and so far as the residuary estate was personal, its income belonged to H. as the owner of the corpus thereof, and was payable to him as it accrued. Matter oj Grossman, 113 K Y. 503. F. devised property to executors in trust during lives of G., and B., youngest grandchild, with power to lease, to receive and invest net income and accumulations therefrom in productive real estate for the benefit of the grandchildren living at testatrix's deatb and such others as should thereafter be born of her daughter ''during their respective minorities," with directions to apply to the use of the grandchildren so much of the income as the executors should deem sufficient for their education and support during their respective minorities. When the youngest grand- child (construed to refer to B.) arrived of age, and on death of Gr., all the real estate of which the testatrix died seized, and such as the executors may have purchased after her death, should be divided amongst the grandchildren then living, the issue of any taking a deceased parent's share. The executors were directed to pay to each grandchild as she arriyed of age, in case the youngest child and Gr. were then living, a proportionate share of the rents, issues and profits during the lives of said grandchildren and son-in-law. Construction : The provisions as to accumulations were to be construed as providing that any of the grandchildren who came of age before the termination of the trust term should receive his or her proportionate share, including a share of the real estate purchased by the executors, and which repre- sented a part of the original rents and profits; the provision as to a dis- tribution of the real estate so purchased, upon termination of the trust, referred only to so much thereof as may be left after- a distribution to the grandchildren previously coming of age; and, as so construed, the provisions were valid, as also was the provision for the payment of the share of a deceased grandchild in the accumulations to his or her issue, 518 XI. ACCUMULATIONS. •or, failing issue, to the survivors, and the provision prohibiting pay- ments by the executors for the benefit of the grandchildren, unless satis- fied that the income from the estate of their mother was insufficient for their support. Roe v. Vingut, 117 N. Y. 204. Accumulations — when provision for was void. Schermerhorn v. Cotiing, 131 N. Y. 48. Where a trust is constituted, duly limited in point of duration, the title to the whole estate vests in the trustee during the trust term, al- though the valid trust purpose will not absorb the whole income, and connected with the lawful purpose is an express or implied direction for an unlawful accumulation, except, at most, when the valid purpose is nominal only, being inserted as a mere cover for the unlawful accu- mulation. By the will of S. and a codicil he gave to his executors his residuary estate, real and personal, in trust, to collect and receive the rents and income, and out of the net proceeds to pay certain annuities amounting in all to $20,000, during the life of his daughter S., and upon her death to convey said estate to such of his grandchildren named as should then be living, to whom he devised and bequeathed the same. If any of said grandchildren should die previous to the death of S., leaving issue, such issue to take the parent's share. Of the grandchildren named some were adults at the time the will was executed. The net annual income derived from said estate had been for several years prior to the testa- tor's death, and continued thereafter to be, over $80,000. No disposi- tion was made in terms of the surplus income. Action for the con- struction of the will. Construction : It created a valid trust, and the grandchildren took remainders, which would vest in possession upon the death of S.; the trust interest was in- alienable and required the estate to continue in the trustees during the life of S. (1 R. S. 730, sec. 63); in the absence of any express direction a direction for the accumulation of the surplus income was to be implied (Grilman v. Eeddington, 24 N. Y. 9); this implied direction was void, as it was to commence at the testator's death, and might be for the benefit of persons not then in being, and was for the benefit of adults as well as infants (1 R S. 726, sec. 37 ; Manioe v. Manice, 43 N. Y. 376), but this did not affect the validity of the trust ; it could not be inferred that the primary object of the testator was to create a trust as a cover for a scheme of unlawful accumulation ; the surplus income belonged to and was distributable among the grandchildren named as the persons presumptively entitled to the next eventual estate (1 R. S. V. CASES DIGESTED. 519 726, sec. 40); assuming the grandchildren took vested remainders, they were not absolute remainders in fee, as upon the death of any grand- child during the trust term leaving issue, such issue, whether born be- fore or after the death of the testator, would take the decedent's share by substitution and as purchasers, and such a contingent limitation over necessarily suspended the power of alienation. Where the whole income of such a trust is not required for the valid trust purposes, the court can not set apart a portion of the capital of the fund, which may be deemed sufficient to produce the income required for these purposes. Hawley v. James, 5 Pai. 318; Cochrane v. Schell, 140 N. Y. 516, a£E'g 64 Hun, 576. Distinguishing, Hawley v. James, 16 Wend. 61 ; limiting, Lang v. Ropke, 5 Sandf. 363 ; Griffin v. Ford, 1 Bos. 123. Note 1. — " The only rule consistent with the authorities is, that where a trust con- stituted under sub. 3 of sec. 55, is duly limited in point of duration, but connected with the lawful purpose is an express or implied direction for an unlawful accumula- tion, the title to the whole estate vests in the trustee during the trust term, although the valid trust purpose will not absorb the whole income, except perhaps wliere the valid purpose is nominal merely, and it can be seen that it was inserted as a mere cover for an attempted illegal accumulation. Phelps v. Pond, 33 N. Y. 69 ; Gilman V. Reddington, 34 id. 19 ; Savage v. Burnham, 17 id. 561." f536.) Note 2.^" The remaining question relates to the persons who are now entitled to the rents, profits and income, not required to pay the annuities. It is claimed on the one side that they go to the heirs and next of kin of the testator, according to the nature of the property, and on the other, that, by force of section 40 of the article on the creation and division of estates (1 Rev. St. 736), they belong to and are distributable among the eight grandchildren as the persons presumptively entitled to the next eventual estate. By the rule of the common law, where there is a specific devise of A future estate, and no disposition of the intermediate rents and profits, they go to the ieir, unless there is a residuary devise, not future or contingent, in which case they go to the residuary devisee. But a residuary bequest of personalty, whether future or coniingent, carries the prior income, and where real and personal estate are blended in one residuary gift, the rule as to personalty governs. The same rules are applicable to trusts. (Glanvill v. Glanvill, 3 Mer. 38 ; Genery v. Fitzgerald, Jac. 468 ; Ackers V. Phipps, 3 CI. & Fin. 665 ; In re Durable, L. R. 33 Ch. Div. 360 ; 1 Jar. (5th ed.), 652.) But it was held that where the devise or gift was of a residue, as to part of which tlie disposition fails, that part will not accrue in augmentation of the remain- ing part, as a residue of a residue, but inst-ead of retaining the nature of a residue, devolves as undisposed of. (Skyrmsher v. Northcote, 1 Sw. 566.) This last rule is ap- plied by the English courts in the construction of the Thellusson Act (39th and 40th George, III, ch. 98) to the disposition of income unlawfully directed to be accumu- lated, and it is held that such income goes to the heirs and next of kin, as in case of intestacy, and not to the residuary legatee or devisee, under that clause in the act which declares that such surplus income " shall go to such person or persons as would have been entitled thereto if such accumulation had not been directed." (1 Jar. (5th ed.)3r3, 603.) If the rule of distribution was the same under our statute as under the English statute there might be some ground for claiming, in this case, that as the ^ift of the residue included by intendment the unlawful accumulation, the heirs and next of kin were entitled to it. Section 40 of our statute, before referred to, pre- 520 XL ACOUMULATIONa scribes the rule of distribution iu cases within it, and if it applies to the surplus in- come in question it must furnish the rule of distribution. That section is : " When, in consequence of a valid limitation of an expectant estate, there shall be a valid suspense of the power of alienation, or of the ownership, during the continuance of which the rents and profits shall be undisposed of, and no valid direction for their ac- cumulation is given, such rents and profits shall belong to the persons presumptively entitled to the next eventual estate." It must be conceded, we think, that the surplus rents and profits were undisposed of within the meaning of this section. The im- plied disposition attempted was unlawful and void, and it is the same as if no dispo- sition whatever had been attempted. (Williams v. Williams, 8 N. Y. 525.) It is claimed in behalf of the appellant that the remainders given to the grandchildren were vested and not contingent. This was conceded by all the parties heard before us, except that the counsel for the executors suggested that the decision of the question was not now necessary. We shall assume, without deciding the question, that the ap- pellant is right in this contention. It is claimed that if the grandchildren took vested remainders, then the statute does not apply, for the reason that the limitation of a vested expectant estate does not suspend the power of alienation, and that it is only where the power of alienation is suspended by a contingent limitation of a future estate, that section 40 applies. In other words, that the present estate in the trustees, although the power of alienation if suspended thereby, by force of sections 63 and 65 of the Statute of Uses and Trusts, does not create the suspension which brings the case within section 40, because that only applies where the suspension is " in conse- quence of a valid limitation of an expectant estate." This construction of the statute seems to be the natural construction according to the ordinary meaning of the lang- uage. It seems to have been assumed by the revisers and the legislature that if the future estate was vested and absolute, the surplus income would, without any statutory rule, goto the person in whom the estate was ultimately to vest in possession. (See Gott V. Cook, 7 Pai. 531.) But however this may be, we think the appellant, to suc- ceed in her contention, must at least be able to point out that no contingency attended any of the limitations of the future estates, which prevented the conveyance by per- sons in being of an absolute remainder in fee. This, we think, can not be done. Upon the death of any grandchild during the trust term leaving issue, sucli issue, whether born before or after the death of the testator, would take by way of substitution, and as purchasers, the share of the deceased parent. Assuming as we have, that the grandchildren took vested remainders, it is the common case of a limitaion to one person in remainder, with a gift over to another person on the death of the first re- mainderman or the happening of any other event before the remainder vests in pos- session. The first remainderman takes a base or qualified fee, subject to be divested in favor of some other object on the happening of the contingency specified. Such a contingent limitation over necessarily suspends the power of alienation, provided it is or may be in favor of persons not in being at the death of the testator, and the sus- pense continues so long as there is a possibility that persons may come into being who would be entitled to take under the ulterior limitation. This was the situation in this case. Until the death of a grandcliild during the term it could not be ascertained in whom the remainder in the share of the one so dying would vest. Issue not yet in being may be born who will be entitled to take under the will. That the word issue in the will means children is plain from the context, and that it is a word of purchase, and not of limitation, is plain also. (Nodine v. Greenfield, 7 Pai. 544; Crystie v. Phyfe, 19 N. Y. 345 ; Smith v. Scholtz, 68 id. 43 ; Mead v. Mitchell, 17 id. 310 ; Wilson v. White, 109 id. 59 ; 2 Jar. (oth ed.) 104.) The case is clearly within section 40 The power of alienation is suspended by a valid limitation of a contingent expectant estate to the issue of the grandchildren, and meanwhile the rents and profits are undisposed V. OASES DIGESTED. 521 of. The remainders to the grandchildren, whether vested or contingent, may ripeu into a fee simple absolute. They are the persons entitled to the next eventual estate vpithin the meaning of section 40, however it might be considered if they took a life estate only, and their estate, if they survive the daughter of the testator, will vest in possession concurrently with the termination of the trust estate and the period of ac- cumulation." (pp. 537-540.) A discretionary power given to trustees to make a disbursement of income upon and in the course of the management of the trust prop- erty, if restricted to such matters as tend to preserve it, or make it effi- cient for earning purposes, is not a violation of the statute providing for the accumulation of income in certain cases, and declaring void any provision for accumulation other than as specified. (1 R. S. 727, sees. 37, 38 ; id. 778, 774, sees. 3, 4.) Matter ofNesmith, 140 K Y. 609. The will of C. directed his executors to divide one-half of his estate into as many equal shares as he should leave children him surviving, to collect the interest on each share and apply the same, or so much thereof as they might deem necessary, to the use of the child for whom the share was intended, and to accumulate the remainder until said child should become of age or sooner die, and upon the coming of age to pay over to him or her the accumulations, and thereafter to apply the whole interest and income to the use of said beneficiary during life; upon the death of a child before or after coming of age to transfer tlie sliare to his or her children, and in case of tlie death of a child leaving na issue to transfer the share to the testator's surviving issue. In an action brought by the executors for a judicial settlement of their accounts, it. appeared that the testator left two children, both infants, one of whom died under age, intestate and unmarried. There had been a large ac- cumulation of interest upon the share of the child so dying. Construction : Until the death of the child the entire interest of her share vested at once when paid in, and only the time of payment over, or enjoyment, was postponed until majority; and so, the administratrix of the deceased child was entitled to the accumulation. It seems, that where a will so provides for the accumulation of inter- est on an infant's share during minority, the testator has power to make such disposition thereof, in case of the death of the infant during mi- nority, as he may see fit; and so, may bequeath it to any person, whether a minor or of full age. Such a provision is not violative of the statute providing that accumulations must be for the benefit o£ minors. Smith v. Parsons, 146 N. Y. 116; 75 Hun, 155. A testator gave real estate to his executors, with directions to turn it into money, accumulate the income, and, after his widow's death, divide the whole among his 66 522 XL ACCUMULATIONS. nephews. The directions for accumulation were, in part, unlawful, as extending be- yond the minorities of the nephews. ■Construction: The accumulations of income received by the executrix, after the nephews' major- ities respectively, belonged to them, and they might call the executrix to account be- fore the surrogate for the accumulations received by her, under two Revised Statutes ■330, section 1, subdivisions 3 and 6; Laws of 1867, (1925) ; and obtain payment thereof. The accumulations of income, up to the majorities of the nephews, must remain in the hands of the executrix, as principal until the death of the widow, and are then payable, with the principal, to the nephews, if they should survive. And the statute ■of limitations was not available to the executrix against the claim for the accumula- tions made after the nephews' majorities. Bobison v. Sobison, 6 Lans. 165. The ninth clause of the will of the plaintiff's testator was as follows : " I further bequeath to my children, after paying all the above legacies and my just debts, all interest that may accrue on the balance of my estate, to be divided between them at the age of forty years, to hold for their natural lives and then to be divided between their heirs." Construction: The provision for the accumulation of the income of the estate was void, as it ex- tended beyond the minority of the children ; and, the provision could not be held void in so far as it required the accumulation to extend beyond the minorities of the re- ■spective children, and effect be given to the residue, for the reason that it provided for a suspension of the power of alienation for more than two lives in being at the time of the creation of the estate. Simpson v. English, 1 Hun, 559. The testator directed that a portion of the rents, incomes and iDrofits of certain of the shares, which were given to minors, should be accumulated during their respect- ive minorities, and upon their expiration, the accumulation of each share should be added thereto, and the rents, incomes and profits of the shares, thus augmented, paid over to the respective beneficiaries. Construction: The direction was valid ; the law does not require the accumulation to be paid over to the beneficiary upon the termination of his minority and it is sufficient if it be for his benefit. Meserole v. Meserole, 1 Hun, 66 ; overruled in Pray v. Hegeman, 93 N. Y. 519. A testator, by his will, gave to his wife the use of all his property until the ma- jority of his daughter, when it was to be divided between them equally ; in case his daughter died during her minority, the whole to go to his wife ; in case tlie wife should die during the minority of lier daughter, then the daughter was " to come in possession of all of said property, on arriving at the age of twenty-one years, previous to which to be handed out, at the discretion of the executors hereinafter named ;" in ■case of the death of both wife and daughter without issue, during the minority of the latter, the property to go to persons named in the will. The wife died before the daughter, and the latter during her minority. Accumula- tions of income were made by the executors during the survivorship of the daughter. Construction : Such accumulations passed to the ultimate legatees with the body of the estate, and and did not belong to the estate of the daughter, 'billets v. Titus, 14 Hun, 554. A testator devised and bequeathed to his executor the sum of $11,000 in trust, to in- vest the same in bond and mortgage, and lieep the accumulations on the same invested V. CASES DIGESTED. 523 until the decease of his sister-in-law, and then to pay the same to her children as therein provided. The balance, rest and remainder of his estate he devised and be- queathed to tVFo persons named in his will. Construction : The direction as to the accumulation of the interest on the $11,000 was void; inter- est should he paid to residuary legatees and not to those entitled to the fund on the death of the sister-in-law. Matter of DeyEi-mand, 24 Hun, 1. A provision by will attempting to keep a sum of money in the town board or offi- cers of a town beyond two lives in being at the death of the testator is in violation of the statute as to accumulaHon of personal property. Iseman v. Myres, 36 Hun, 651. Discretionary power was given t) executors to sell real estate and deposit proceeds in savings bank and at the termination of a life estate in other property to divide the same between testator's then surviving grandchildren. Such direction for accumula- tion was void. Matter of Boy t, 71 Hun, 13. Trust estate; undisposed of rents and profits belong to the person entitled to the next eventual estate, not to the surviving beneficiary, not to the next of kin of the deceased beneficiary. Qould v. Rutherford, 79 Hun, 280. Where, under the provisions of a trust created by will, the trustees are directed "to receive the interest, income and profits (of a share of the estate) and to apply the same to the use" of a daughter of the intestate who is of unsound mind, "and upon her death to assign, transfer and set over the said share to her children," etc., the whole income is given to the daughter, and she is entitled to have it all. The words " apply to the use of" are equivalent to the words " pay over to." Where, in such case, a committee has been appointed for the cestui que trust, the committee is entitled to receive any income beyond the necessary expenses of the wstui que trust, which has accumulated in the hands of the trustees. Oasquet v. Pollock. 1 App. Div. 513. See Hendricks v. Hendricks, 3 App. Div. 604. By the first clause of her will Charlotte Gomez gave to her executors the sum of $13,000, to be held by them in trust, to apply the income to the support of her daughter Matilda during life; by tue second clause of her will she devised the residue of her estate to her executors in trust to pay over the income to her daughter Eme- line; by the fourth clause she provided that in case Matilda survived Emeline, and Emeliue left no issue, all the property so held in trust for Emeline should be held by her executors in trust to apply the rents, income, dividends and profits "of all and singular the same" to the support of Matilda during life, and after her decease to convey it to the children and lawful heirs of Harmon Hendricks, a brother of the testatrix. Emeline died before Matilda, who was at the time her mother made her will and until her own death, in 1893, an inmate of an insane asylum, and after the death of Emeline there was a considerable accumulation in the hands of the trustees of income not necessary to the support of Matilda. Construction: As the will contained no direction for an accumulation of income, and, as any such accumulation was forbidden except in the case of a minor, the court would not in- dulge in any presumption that there was an intention to accumulate. The accumulation should be paid over to the administrator of Matilda and did not pass as undisposed of income to the heirs of Harmon Hendricks. Hendricks v. iifera- drieks, 3 App. Div. 604. Van Nostrand v. Moore, 53 N. Y. 13; 2 Jarman on Wills, 5th ed., 773; Roe v. Vingut, 21 Abb. N. 0. 484. A testator directed his trustees that if they should ascertain that there were funds 524 XI. ACCUMULATIONS. sufficient left to commence and found a school, they should petition the legislature of this state to accept the devise, for that object, upon the testator's plan; and to make the necessary arrangements for its uniform and steady government. And if such a law could not be obtained in this state, to the satisfaction of the trustees, then the residue of the testator's estate was to be disposed of, and the money received therefor invested, until the sum of $100,000 should be funded, when the trustees were to form the institution in any state which was willing to give the proper irrevocable lega^ guaranty for its performance, aud appropriate not less than 1,000 acres of land for the purpose. Construction: The remainder of the real estate, after the payment of debts and legacies, descended to the heirs at law of the testator; and so much of the personal estate as had been ac. cumulated and invested for the support of the school, by a sale of the real property, or which was not required for the payment of debts and legacies, passed to his next of kin. Tates v. Tates, 9 Barb. 324. A testator devised as follows: " I give and bequeath to my wife C. E." a farm. "I give "■ to the P. E. Society for promoting religion and learning * * in New York, $5,000; the interest * of which shall be applied, as it shall accrue, to the support of the rector * , for the time being, of Christ's Church in * G., etc., provided that whatever interest may accrue during a vacancy in the office of rector * , shall be paid to the clergyman who shall next fill the said office. I give * to the P. E. Society for promoting religion and learning" another farm, " provided the said society is authorized to hold real estate in trust, but if not thus authorized to hold real estate, then I hereby direct my executors to sell " the last named farm, " and pay over the same, more or less, to the said society. The interest * of which shaU be paid as it shall accrue, to the rector * of Christ church, G., in the same manner, and with the same provisions, as in the last preceding bequest. All the remainder of my property * * I hereby direct my executors to sell, and the avails of the sale, more or less, it is my will that they should invest in good securities, etc., aud the in- terest it is my will shall be paid to my beloved wife C. R., as it shall accrue, and during her natural life. Then it is my will that this money shall be paid to the P. E. Society for promoting religion and learning in the state of New York, and by them held as a fund to be denominated the Rundle fund for the support of mis- sionaries in the diocese of New York. It is also my will that the said fund shall be left to increase by the addition of the interest to the principal, until it amounts to the sum of $10,000, and then that the interest or income of the said fund as it shall ac- crue, shall be paid into the disposable fund of Education and Missionary Society of the P. E. Church in the state of New York, for the support of missionaries in the diocese of New York." Construction: The bequest of $5,000 to the Protestant Episcopal Society in trust to apply the in- terest and income to the support of the rector or minister of Christ church in G. was invalid, as suspending the absolute ownership of the property for an indefinite term, ■without reference to any designated life or two lives in being, and as directing an ac- cumulation of income for a purpose forbidden by law. The bequest of such avails, after the widow's death, to the P. E., Society, in trust to accumulate the interest until the fund should reach the sum of $10,000, and then to pay the interest and income as it should accrue, into the disposable fund of the Education and Missionary Society, for the support of missionaries, etc., was invalid. King v. Bundle, 15 Barb. 139. V. CASES DIGESTED. 525 A provision for an accumulation for the erection of a church was invalid and void. Wilson V. Lynt, 30 Barb. 134. A direction to executors to pay the indebtedness of the esta te out of the residue of the rents and profits and, until such payment could be made, to invest such proceeds from time to time, was not within the statute of accumulations. Bean v. Hoekman, 31 Barb. 78. A direction that surplus interest or income should be accumulated for the benefit of all the grandchildren, until the youngest attained his or her majority, w as void so far as it provided for an accumulation for the benefit of the grandchildren after they should have attained their majority. This direction for an unLiwful accumulation did not affect the validity of the bequest of the fund or this surplus income to the grandchildren; as they severally attained their majority they would be entitled to their share of the surplus income. Forsyth v. Bathbone, 34 Barb. 388. A direction to ascertain the amount of the legacies to various beneficiaries by add- ing the principal of the fund to the amount of Interest which should have been paid to them during minority, was not a direction for accumulation, but only a method of ascertaining the amount of their shares. Titus v. Weeks, 37 Barb. 136. Where the object of a trust in a will executed in Missouri is a charity and has pro- visions for accumulation as to undue suspension for more than two lives, it can not be enforced under our laws; and where these provisions were so interwoven with the whole trust that no part of the trust could be carried out without working injustice and giving to a portion of the testator's family a larger share of the estate than was intended, it was held that the testator's objects would be better effectuated by declar- ing the whole will void. Clemens v. Clemens, 60 Barb. 366. A direction in the will that the executors lease real property previously devised by the will, until the net amounts derived therefrom shall amount to enough to pay all testator's debts, and then convey to the devisees, attempts to create an indefinite ac- cumulation, and is in violation of the statutes limiting accumulations and the suspen- sion of the power of alienation. Testator devised three houses and lots among his children and grandchildren sever- ally, but directed his executors to lease the same and collect the rents until a sufficient sum was realized to pay all his debts, and then to convey to the several devisees. One of the houses was encumbered by two mortgages, which the court found were the debts intended to be so paid, but found that the attempted accumulation of rents for that purpose was void, as in violation of the statutes against accumulations and perpetuities. Action to construe the will and charge the three houses with the payment of the mortgage debts. Construction ; The intent of the testator to charge the mortgage debts on the entire real property being established and the means selected having failed, the amount of the mortgages was on equitable principles chargeable upon the three houses, in proportion to the value of the respective parcels as shown upon the trial, and the executors should be directed to convey at once to the several devisees subject to such proportionate ■charge. Wells v. Wells, 30 Abb. N. C. 225. The gifts of the legacies which are limited to take effect after a prescribed period of accumulation, and to be paid out of the accumulated fund as part of the subject matter of the gifts, being a period too remote, the gifts must fail. Legacies dependent upon a void trust fall with it. Bean v. Bowen, 47 How. Pr. 306. Where a trust estate by will provides for accumulation for the benefit of adults as well as minors, it is void, but an annuity to the widow provided for under the trust estate was charged upon the real estate and survived the failure of the trust ; but such 526 XI. ACCUMULATIONS. annuity was subject to a reduction in favor of an afterborn child to take as if hl» father died intestate. MeCormack y. McCm-macle, 60 How. Pr. 196. Citing, on the last proposition, Sanford v. Sanford, 4 Hun, 753; Mitchell v. Blain, 5 Paige, 388. The invalidity of a trust for accumulation of rents created by will does not affect other independent provisions therein. If a valid trust of such real estate is otherwise- created in such a will, for the benefit of the beneficiary of such rents and profits and to be applied to his use, the only effect of such invalidity would be to entitle- such beneficiary to the whole of such rents and profits. Bolton v. Jacks, 6 Robert. 166. Will directed executors to pay debts, etc., and bequeathed to them the residue of the estate, in trust, to invest the same and from the interest accruing therefrom dur- ing twelve years, to pay the legacies to religious and charitable societies specifically named. The trust was void, as it suspended the ownership of the residuary estate for a definite period of time and because the directed accumulatiou of interest was not for a lawful purpose. Matter of Starr, 3 Duer, 141. An accumulation for three years for the purpose of erecting a statue, was -void. Morgan v. Masterton, 4 Sandf . 443. Although a trust for an accumulation is invalid, this does not affect independent pro- visions in a will ; the only result is that those for whose benefit the accumulation is di- rected have an immediate right to the whole income. Lavge v. Sopke, 5 Sandf. 363. A direction for the accumulation of the income of A.'s share of a devise until B. should arrive at age, was bad. Estate of Ruppert, Tucker, 480. Testator left lands to two sisters for their mutual use and benefit, the lands to be equally divided between them, and the management to be in the hands of one named executrix, and on their decease, if they should not many and leave issue, to go to testator's nephews and nieces and their issue. There was no undue suspension. Tes- tator further provided that, if both or either of the sisters should marry and leave issue, then that one-half the land should go to such issue ; but if neither should marry, or marrying have no issue, the survivor should pay the expenses and collect the rents and invest the deceased sister s part of the net rents, which should be di-^ vided after the death of the survivor of the sisters among the testator's nephews and nieces or their issue ; and it was provided that such sister named as executrix should sell the property for the purpose of carrying into effect such provision. The provi- sion for the accumulation was void, but this did not invalidate the other provisions, and the rents so directed to be accumulated went as they accrued to the nephews and. nieces as the persons presumptively entitled to the next eventual estate. McOrath v. Van Stavoren, 8 Daly, 454. Will directed executor, named trustee, to sell the real property, and from the in- come of the whole estate to pay an annuity to testator's daughter for life, and after her death to her children, unborn at the time testator died, until they should attain the age of twenty-one years and then to pay them the principal, and upon her death, failing issue, to pay to his nephew an annuity until he should become twenty- one years of age, and then to pay the principal to him, and that the surplus income, after paying such annuity, should be invested in order that the interest might supply the place of such portion of the income of the estate as might fail from time to time. Construction : The disposition of the surplus income was void under 1 R. S. 778, sec. 1, and the direction to sell the real property converted it into personalty, so as to save the devise to the executor and not to allow it to fail as an illegal suspension ; and the person en- titled to the surplus income was the same as would have taken it if it had been reat V. CASES DIGESTED. 52T property. Under 1 R. S. 736, sec. 40, the nepliew should take it as presumptively en- titled to the next eventual estate. Grant v. Grant, 3 Redf. 383. A direction for the accumulation of rents, income, etc., of real or personal property "fortlie benefit of one or more minors then in being" must, in order to be valid under 1 R. S, 736, sec. 37, and id. 773, sec. 3, provide for an accumulation exclusively for the benefit of the minors. Under a valid direction for the accumulation of rents and income for the benefit of a minor, the accumulation not only vests in the minor, but, on his attaining majority^ vests in him absolutely so as to be no longer liable to be divested. Testator, who left both real and personal property, by his will, after making cer- tain bequests, gave all the residue of his property, real, personal and mixed, to his executors, in trust, and by implication directed the accumulation of a portion of the income and profits during the minority of his children, respectively. He then gave a vested remainder in the trust property to his children, to take effect in posses- sion at the end of the trust term, subject to being divested as to each child by his or her death without issue during said term ; in case all his children should die without issue during said term, he gave and devised the residue, one quarter to his widow, if then living, and the balance to his brothers and sisters then living or the issue of any that might be dead, in equal proportions. All of the children having died during the trust term, without issue, one during and the others after the expiration of minority, a sister of testator claimed an interest in the accumulated income which accrued be- fore the death of the last survivor of the children. Construction : Such accumulations vested absolutely before the substituted limitation took effect and the sister of testator took a share of the corpus, only, of the estate. As to whether, if all the children of the testator had died without issue during their minority, the accumulations would have passed to the substituted legatees and de- visees, qucere. Oilman v. Healy, 1 Bem. 404. Distinguishing, Gilman v. Reddington, 34 N. Y. 9 ; Meserole v. Meserole, 1 Hun,. 66. The eighth clause of the will provides for the continuance of the interest of the tes- tator in the business therein mentioned, and the receipt of the profits thereof by the executors, until the youngest child should reach majority, and then their division between the testator's wife and her children by him. Construction : In so far as it makes provision for the retention of the profits for the purpose of division until the event specified, it is invalid. Such provision contemplates an ac- cumulation of profits in the meantime which are not expressed or intended to be for the benefit of the minors solely. The provisions of the third Revised Statutes (7th ed.), page 3179, which directs that the rents and profits of an expectant's estate during the time when the power of alien- ation is suspended, shall be given to the persons presumptively entitled to the next eventual estate, is applicable to personal property, as well as real estate. The parties presumptively entitled to the next eventual estate or interest in the fund set apart by the eighth clause of tlie will, are those for whose benefit the trusts are provided to be set up out of the residuary estate, the widow of the testator and her children by him. Matter of Bands, 30 N. Y. St. Rep. 850 (Surr. Ct.). A deed provided that the rents and profits of his share should be applied to the use of J. for life and on his attaining the age of thirty, such share and all additions should be conveyed to him absolutely ; that if there was a surplus not required for 528 XI. ACCUMULATIONS. his support it should accumulate for his benefit until he reached twenty-one years, and then the whole of such surplus was to be paid to him. Construction : Such accumulations belonged to J., although he died under twenty-one, and the same did not pass to R.; the words " trust fun d" did not refer to such accumula- tions. Draper Y. Palmer, 37 St. Rep. 510 (Sup. Ct.). Testator directed his executors to lease the residue of his estate, and deposit the net rents and income in savings bank to create a fund to liquidate any indebtedness against the same, and also empowered the executors to sell the real estate whenever they deemed it for the best interest of the estate to do so. And the will provided that the proceeds of such sale, after deducting the expenses of such sale and the indebted- ness against such real estate, should be deposited as aforesaid, or in good securities, and at the decease of his daugiiter H. to be equally divided between each of tes- tator's grandchildren her surviving, the children of his two daughters, share and share alike. ■Construction : The will contemplated a gift of the principal and accumulated Income to the grandchildren ; the gift of the principal was valid, but the direction to accumulate was void under the statute, and the income, as it accrues, will pass to the grand- <:hildren, they being the persons presumptively entitled to the next estate. Matter of Hoyt, 33 St. Rep. 787 (Surr. Ct.). An accumulation which might not terminate until the majority of the youngest of four beneficiaries was void. Thompson v. Glendening, 1 Sandf . Ch. 387. Trusts for the accumulation of the surplus income of the respective shares given were valid. As to all the beneficiaries, the accumulations were to commence within two lives in being at death of the testator, during the minority of the respective heneficiaries, and were to terminate as to each when he became of age. It is a sufficient compliance with the provisions of the revised statutes as to such accumulations, if the persons for whom the same are intended are designated or described as a class, e. g., as the children of a person named. Where such a class is designated, it is not essential that all should be living when the accumulation commences, provided at the commencement it goes for the benefit of such as are in ease, exclusively, and that those who subsequently become entitled fall within the prescribed rules laid down by the statute. Such a succession of accumulations . is not objectionable it they are all made to terminate within the prescribed limits as to time in respect of the suspense of the power of alienation. A devise in trust for the payment of annuities out of the income of real estate is valid. Mason v. Mason's Exrs., 3 Sandf. Oh. 477 ; afE'd 3 Barb. 239. Where A., by a deed executed previous to the revised statutes, conveyed all his real and personal estate to B. in trust that such trustee, or his assigns, or such other person or persons as he should by will appoint for that purpose, should dispose of, lease and manage the trust property, and receive the rents and income, and after deducting the expenses of the trust, should apply so much of the rents and income to the use and support of the grantor, and of his family, duriog his life, as the trustee should deem discreet and reasonable, and should invest and accumulate the residue of such rents and income for the benefit of the heirs of A. ; and on the further trust, upon the death of A., to account for what should remain of the trust estate, and of the accumulations of the rents and income, to the heirs at law and next of kin of the grantor. V. CASES DIGESTED. 529 Construction: The trust to receive the rents and income of the trust property, during the life of the grantor, to apply such part thereof to his support as was necessary, and to accumulate the residue for the benefit of his next of kin, at his death, was valid. But such a trust would not be valid, under the provisions of the revised statutes. Bryan v. Knickerbacker , 1 Barb. Ch. 409. An implied trust to accumulate a part of tlie income, of a share of the testator's estate, for children or descendants of B. C, who are not in existence at the time when such accumulation is to commence, or whose right to the accumulated fund is entirely contingent, is void, under the provisions of the revised statutes relative tO' accumulations. And the surplus income of the trust property, so far as it arises from real estate, or the proceeds thereof, if it is not otherwise disposed of by the will of the testator, belongs to his heirs at law ; and so far as it arises from the personal estate, it belongs to his widow and next of kin. Haxtun v. Corse, 2 Barb. Ch. 506. Trusts for accumulation, being prohibited by statute, except for the benefit of minors, a trust to accumulate the rents and profits of real estate, or the interest or income of personal estate, can not be created for the benefit of a lunatic who is not a minor. But where an annuity is given absolutely to a lunatic, a court of equity may direct the surplus, beyond what is necessary for his support, to be paid over to his committee, and invested for his use. Where the income of a lunatic is more than can be properly expended for her use, it must, as a matter of necessity, be accumulated for him, or for those who may eventually be entitled to his property, as his next of kin. But that is not a trust for accumulation which is prohibited by the statute. Craig v. Craig, 3 Barb. Ch. 76. Testator, by his will, gave a portion of his estate to his executors to be sold, and directed the investment of the proceeds thereof and the income of the estate not otherwise needed, and bequeathed to the widow of his deceased brother, for the sup- port of herself and her family, an annuity of $3,000 during her life or widowhood, and made a further provision for the support of her two children, his nieces, until they should arrive at the age of twenty or be married, if their mother should die or remarry before that time; and also bequeathed an annuity of $600 to his mother for life; and directed his executors to pay to each of his two nieces, after they should re- spectively have arrived at the age of twenty or should be married, on their separate receipts notwithstanding their coverture, one equal half of the income of his estate during their respective lives; and further directed, that in the case of the death of either of his nieces after she should have attained the age of twenty years, without leaving lawful issue, the surviving niece should receive the whole income during her life, witli remainder in fee to his mother in case both nieces should die without issue during her lifetime. Construction: The executors were to accumulate the moiety of the income belonging to each niece, for her exclusive benefit, until she should arrive at the age of twenty or should be married, and then to pay the same over to her, on her separate receipt, or to her legal representatives in case of her death; and after the nieces had respectively ar- rived at that age, or were married, the executors were to pay over to them their sev- eral shares of the income as it should accrue and be received by such executors; the trust to sell the property and invest the proceeds, and to accumulate the income and pay over the same to the nieces for their separate use notwithstanding coverture, was a valid trust, under the provisions of the revised statutes relative to uses and trusts. Oott V. Cook, 7 Paige, 531. 67 ■r, 530 XI. ACCUMULATIONS. A trust for the accumulation of rents and profits of real estate, when it operates to the benefit of adults, as well as minors, is void; but this does not invalidate the whole will. Hawley v. Janm, 16 Wend. 61, 162. Accumulation for wife and minor child was void. Boynton v. Hoyt, 1 Denio, 53. Xir. ESTATES IN" SEYERALTY, JOINT TENANCY AND IN COMMON. I. ESTATES BY THE ENTIRETY. Heal Prop. L., sec. 55. Estates in severalty, joint tenancy, and in common. "Estates in respect to the number and connection of their owners, are divided into estates in severalty, in joint tenancy and in common; the nature and properties of which respectively, shall con- tinue to be such as are now established by law, except so far as the same may be modified by the provisions of this chapter." 1 R. 8. 736, Banks's 9tli ed., p. 1794, sec. 43, same; repealed by Real Prop. L. Real Prop. L., sec. 56. When estates in common ; when in joint tenancy. " Every estate granted or devised to two or more persons in their own right shall be a tenancy in common, 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.' This section shall apply as well to estates already created or vested as to estates hereafter granted or devised." 1 R. 8. 737, Banks's 9th ed., p. 1794, sec. 44, same; repealed by Real Prop. L. See early statute, 1 Green. Laws, 307, sec. 6. Real Prop. L., sec. 293. Inheritance, sole or in common. " When there is but one person entitled to inherit, he shall take and hold the inheritance solely ; when an inheritance, or a share of an inheritance, descends to several persons, they shall take as tenants in common, in proportion to their respective rights." 1 R. 8. 753, Banks's 9th ed., p. 1837, sec. 17, repealed. TENANTS IN COMMON. 1. Every estate shall be a tenancy in common unless expressly declared to be in joint tenancy. Real Prop. L., sec. 56. Campbell v. Rawdon, 18 N. Y. 413; Everitt v. Everitt, 39 id. 39 ; Matter of Kimberly, 150 id. 90 ; Hunter v. Hunter, 31 Barb. 334 ; Matter of Blaker, 13 St. Rep. 741 ; Manler v. Phelps, 15 Abb. N. C 136, 137. 2. This statute applies as well to personal as to real estate. Matter of Kimberly, 150 N. Y. 90 ; Mills v. Husson, 55 St. Rep. 813 ; Matter of Lapham, 37 Hun, 15 ; Blanchard v. Blanchard, 4 id. 388, 389, afE'd 70 N. Y. 615. 3. Whether legatees take distributively as tenants in common, or as joint tenants. 'Thatcher v. Candee, 4 Abb. Ct. App. Dec. 387 ; People v. Coleman, 43 Hun, 585 ; Van Rensselaer v. Akin, 33 Wend. 549. Assignees take as tenants in common. Beal V. Miller 1 Hun, 390. (531) 532 XII. ESTATES IN SEVERALTY, JOINT TENANCY AND IN COMMON. TENANTS IN COMMON. Smith V. Edwards, 88 N. T. 92 ; Bliven v. Seymour, id. 469, 478 ; Matter of Ver- planck, 91 id. 489, 443 ; Purdy v. Hayt, 93 id. 446 ; Mott v. Ackerman, id. 539, 549 ; Van Brunt v. Van Brunt, 111 id. 178, 187 ; Dana v. Murray, 123 id. 604, 615 ; Matter of Kimberly, 150 id. 90 ; Lane v. Brown, 30 Hun, 383 ; Bingham v. Jones, 3i id. 6 ; Cromwell v. Cromwell, 3 Edw. Ch. 495 ; Muir, In re, 46 Hun, 555 ; MoEEett V. Elmendorf, 82 id. 470 ; Gage v. Gage, 43 id. 501 ; Coster v. Lorillard, 14 Wend. 335 ; Putnam v. Putnam, 4 Bradf. 308. 4. Presumption of joint ownership. Mercantile Deposit Co. v. Huntington, 89 Hun, 465. 5. Wlien joint devisees and legatees of real estate hold as copartners. McFarlime v. McFarlane, 82 Hun, 238. 6. Tenants in common hold by unity of possession and may hold by several and distinct titles, or by title derived at the same time by the same instrument or descent' Kent's Com. vol. 4, *367. 7. Each tenant in common is solely or severally seized of his share. Kent's Com. vol. 4, *368. 8. A. tenant in common, in alienating, conveys his undivided share in the estate as if he were seized of the entirety. Kent's Com. vol. 4, *368. A conveyance of some defined portion of the property by metes and bounds may bind tlie granting tenant^, but is inoperative as to his co- tenants. Kent's Com. vol. 4, *368 ; see, further, Peabody v. Minot, 24 Pick. 339 ; Great Falls Co. V. Worster, 15 N. H. 412, 449 ; Jewett v. Stockton, 3 Yerg. 492 ; Scott v. State, 1 Sneed 629 ; Duncan v. Sylvester, 24 Me. 482 ; Mitchell v. Hazen, 4 Conn. 495 ; but see, as holding such conveyances valid as to cotenants, Lessee of White v. Sayre, 2 Ohio, 110 ; E. Prentiss Case, 7 Ohio, pt. 2, p. 129. Although a conveyance be valid as to the granting tenant it can not affect the rights of the cotenants.^ Crippin v. Morss, 48 N. Y. 63, see, further, Goodwin v. Keney, 49 Conn. 563; Worthington v. Staunton. 16 W. Va. 208 ; Crooke v. Vandervoot, 13 Neb. 505 ; Ly- man V. Railroad Co., 58 N. H. 384; Stevens v. Town of Norfolk, 46 Conn. 227; Sewell V. Holland, 61 Ga. 608 ; Tainter v. Cole, 120 Mass. 162. 9. A tenant in common can not, by his sole act, create an easement in premises held in common, nor acquire nor exercise for the benefit of other property held by him an easement in the property held in com- mon, nor confer such rights upon another. Crippin v. Morss, 49 N. T. 63 ; see further, Eldridge v. Rochester City & Brighton R. Co., 54 Hun, 194. 10. Tenants in common are seized ^er my and not per tout, and hence ' In this country, tenancy in common maybe created by descent in which particular it differs from the common law. Kent's Com. vol. 4, *367. •^ But see, Eldridge v. Rochester City & Brighton R. Co., 54 Hun, 194. * One tenant can not make a lease binding on a cotenant. Kingsland v. Ryckman, 5 Daly, 13. XII. ESTATES IN SEVERALTY, JOINT TENANCY AND IN COMMON. 533 TENANTS IN COMMON. must sue separately,' but they join' when the action relates to some en- tire and indivisible thing, and in actions of trespass relating to the pos- session, and in debt for rent Kent's Com. vol. 4, *369 ; see further, Marshall v. Moseley, 31 N. Y. 380 ; Decker V. Livingston, 15 Johns. 479 ; Tripp v. Riley, 15 Barb. 333 ; Wall v. Hinds, 4 Gray, 356 ; Webber v. Merrill, 84 N. H. 303 ; Tucker v. Campbell, 36 Me. 346. 11. Tenants in common must account to each other for a due share of the profits of the estate,' beyond a just proportion thereof. Code Civ. Pro. sec. 1666; Kent's Com. vol. 4, *369; 1 R. 8. (N. Y.) 750, sec. 9; Eoseboom v. Rosehoom, 15 Hun, 309; afl'd 81 N. Y. 856; McCabe v. McCabe, 18 Hun, 153; Myres v. Bolton, 89 id. 343; see, further, Kingsland v. Chetwood, 39 id. 603. 12. Tenant in common is entitled to credit upon an accounting or partition for taxes paid by him for his cotenant. Ford V. Knapp, 102 N. Y. 135, 143; see, further, Hitchcock v. Skinner, HofE. Ch. 21; "Van Home v. Fonda, 5 Johns. Ch. 369, 407; see, McAlear v. Delaney, 19 Weekly Dig. 353; Stephenson v. Cotter, 33 N. Y. St. Rep. 74. But not for insurance paid. Pord V. Knapp, 103 N. Y. 135, 143. 13. A tenant in common may sue his cotenant under 1 R S. 750, sec. 9, for money received by the latter and retained by him beyond his due proportion. Joslyn V. Joslyn, 9 Hun, 388; see, further, Tuers v. Tuers, 16 Abb. N. C. 464; Cochrane v. Carrington, 35 Wend. 409. 14. Tenants in common are liable to each other for waste. N. Y. Code Civ. Proc, sec. 1656. Kent's Com. vol. 4, *369; N. Y. R. S. vol. 3, 884; see, further, Balch v. Jones, 61 Cal. 234; Chesley v. Thompson, 3 N. H. 9; Shepard v. Pettit, 30 Minn. 119. 15. Tenants in common may compel each other to a partition.'' Kent's Com. vol. 4, *369; N. Y. Code Civ. Pro., sees. 1533, 1533, 1587, 1538, 1548, 1590, 1656-8; Beebee v. Grifflng, 14 N. Y. 335; Moore v. Moore, 47 id. 467; Baldwin V. Baldwin, 33 Civ. Pro. 268. 16. Owners in common of grain or other personal property, in its nature separable in respect to quantity and quality by weight or meas- ure, may sever their portions of the common bulk at will ; and where one of them, having the entire property in his possession, appropriates the whole to his own use, and refuses on reasonable demand to let the other have his portion of it, he is liable for a conversion. Stall V. Wilbur, 77 N. Y. 158; Thomas v. Williams, 83 Hun, 357, 360; Lobdell v. ■ N. Y. Code, sec. 1500 allows a separate action. Stall v. Wilbur, 77 N. Y. 158 ; Channon v. Lusk, 3 Lans. 311 ; Lobdell v. Stowell, 37 How. 88, aflf'd 51 N. Y. 70 ; Soule V. Mogg, 35 Hun, 79 ; see, Kutz v. Richards, 40 St. Rep. 693 ; Jones v. Felch, 8 Bos. 63 ; Palmer v. Stryker, 36 St. Rep. 785. 2 Tylee v. McLean, 10 Wend. 373 ; Porter v. Bleiler, 17 Barb. 149. ' When action for accounting is not maintainable. Nirdlinger v. Bernheimer, 33 St.- Rep. 1019; Rollwagen v. Rollwagen, 37 id. 393. ■• When action to ascertain and adjudicate rights was not maintainable. Hartwell V. Mutual Life Ins. Co., 50 Hun, 497. 534 XII. ESTATES IK SEVERALTY, JOIKT TENANCY AND IN COMMON. TENANTS IN COMMON. Stowell, 51 N. Y. 70, aff'g 37 How. Pr. 88; Channon v. Lusk, 3 Lans. 211; Forbes V. Shattuck, 33 Barb. 568; Tripp v. Riley, 15 id. 833; Soule v. Mogg, 79 Hun, 83. 17. Tenants in common may effect a valid partition by deed or by parol, followed by exclusive possession. Wood V. Fleet, 36 N. Y. 499; see, furtlier, Taylor v. Millard, 118 id. 344, 249; San- ger V. Merritt, 130 id. 116; Kaufman v. SchoefEel, 46 Hun, 571, aflf'd 113 N. Y. 635; Ferguson v. Tweedy, 56 Barb. 168; Mount v. Morton, 30 id. 133; Ryerss v. Wlieeler, 35 Wend. 434; Jackson v. Harder, 4 Jolins. 303. 18. A disseized cotenant may maintain action of partition. Weston V. Stoddard, 137 N. Y. 119. 19. The possession of one tenant in common is the possession of his cotenants', and, although he takes the whole of the profits, it is not tan- tamount to an ouster. Kent's Com. vol. 4, *370; Sweetland v. Buell, 89 Hun, 548. 20. Ouster may be effected by one tenant in common procuring title from his cotenant by fraud or undue influence. Zapp V. Miller, 109 N. Y. 51; see, further, Stepbenson v. Cotter, 33 St. Rep. 74. 21. What does or does not constitute ouster. Gilman v. Oilman, 111 N. Y. 365; see, further, Woolsey v. Morss, 19 Hun, 373;, Clark V. Grego, 47 Barb. 599; Wbiteman v. Hyland, 40 St. Rep. 575. 22. What does or does not constitute adverse holding. Katlian v. Rockwell, 16 Hun, 90; see, further, Valentine v. Northrop, IS Wend. 494. 23. When a tenant in common is presumed to hold adversely to his cotenant. Abrams v. Rhoner, 44 Hun, 507. 24. If one tenant in common actually ousts his cotenant, or does acts amounting to a total denial of his cotenant's, right and title, and to a disseizin, such cotenant has his action of ejectment. N. Y. Code of Civ. Pro. sec. 1515; Kent's Com. vol. 4, *370; Edwards v. Bishop, 4 N. Y. 61; Zapp v. Miller, 109 id. 51; Sweetland v. Buell, 89 Hun, 548; see, further, Sigler V. Van Riper, 10 Wend. 415; Ricard v. Williams, 7 Wheat. 60; Valentine v. Northrop, 12 Wend. 495; Muldowney v. Morris & Essex R. R. Co., 43 Hun, 444. 25. A tenant in common can not maintain an action for the posses- ■ sion of personal property against his cotenant. Davis V. Lottich, 46 N. Y. 898; see, further, Russell v. Allen, 13 id. 173: Hudson V. Swan, 83 id. 553; Robinson v. GilflUan, 15 Hun, 367; nor to compel a surrender of their joint muniments of title; Clowes v. Hawley, 13 Johns. 484; but a delivery to the proper officer for record may be compelled. Smith v. Cole, 109 N. Y. 436; s. c, 39 Hun, 348. 26. What does or does not constitute conversion by a tenant in common. LeBarron v. Babcock, 133 N. Y. 153; Osborn v. Schenck, 18 Hun, 202; Dear v. 'Bealv. Miller, 1 Hun, 390; German v. Matchin, 6 Pai. 388; Shumway v. Hol- brook, 1 Pick. 114; Buchmaster v. Needham, 23 Vt. 617; Bowen v. Preston, 48 Ind. 367; Long v. McDow, 87 Mo. 197. XIL ESTATES EST SEVERALTY, JOINT TENANCY AND IN COMMON. 535 TENANTS IN COMMON. Reed, 37 id. 597; see, further. Bums v. Winchell, 44 id. 361; Thomas v. Williams, 32 id. 257; Van Doren v. Baity, 11 id. 339; Benedict v. Howard, 31 Barb. 569; Soule V. Mogg, 35 Hun, 79. 27. If a tenant sell or convert the personal' property, his cotenant may have his action for damages, or hold his title with the purchaser. Davis V. Lottich, 46 N. T. 393. 28. An action of trespass does not lie against a tenant in common by his cotenant for use or occupation of the common property, unless a tenant be disturbed in some defined portion of the propertv occupied by him under agreement with his cotenant. Kent's Com. vol. 4, *370; see, further, Clowes v. Hawley, 12 Johns. 484; Kray v. Goodwin, 16 Mass. 1. 29. The mere occupation by one of several tenants in common does not make him liable to his cotenant for rent or profits unless he has ousted them. Zapp V. Miller, 109 N. T. 51 ; Roseboom v. Roseboom, 15 Hun, 309. aff'd 81 N. T. 356; see, further, Woolever v. Knapp, 18 Barb. 265; Dresser v. Dresser, 40 id. 300; Henderson v. Eason, 9 Eng. L. & Eq, 337; McKay v. Mumford, 10 Wend. 351 (ten- ant held over after expiration of lease from cotenant); Wilcox v. Wilcox, 48 Barb. 337; Rich v. Rich, 50 Hun, 199; but see, Muldowney v. Morris & Essex R. Co., 42 id. 444. 30. When a tenant in common may recover from a cotenant, who excludes him from the possession of the premises. Muldowney v. Morris & Essex R. Co., 43 Hun, 444. 31. Growing crops put in by one tenant in common, who takes pos- session exclusively without contract, on partition made while the crop is growing, goes in severalty to the tenants in common. Kent's Com. vol. 4, *370; see Calhoun v. Curtis, 4 Mete. 413. 32. A tenant in common is entitled to crops put in and gathered by him, without denying his cotenant's rights and without agreement with them. Le Barron v. Babcock, 133 N. Y. 153, rev'g 46 Hun, 598. 33. A tenant in common or joint tenant, after request and refusal-; can compel his cotenant to pay his share of the expense necessary for re, pairs to a house or mill", but the rule does not apply to fences inclosing wood or arable lands. Kent's Com. vol. 4, *370; Ford v. Knapp, 103 N. Y. 135; see, further, Denman v. Prince, 40 Barb. 213 ; Mumford v. Brown, 6 Cow. 475 : Carver v. Miller, 4 Mass. 559; Beaty v. Bordwell, 91 Pa. St. 438; Alexander v. Ellison, 79 Ky. 148. 'Post V. Kimberly, 9 Johns. 470. Tenant is liable to cotenant for interrupting voyage of vessel for which she is chartered. . Killum v. Knechdt, 17 Hun, 583. 'As to the rule respecting mills in Massachusetts, see Carver v. Miller, 4 Mass. 559; Mass. R. 8. 1836, pp. 682-3; Bellows v. Dewey, 9 N. H. 278. 536 511. ESTATES IN SEVERALTY, JOINT TENANCY AND IN COMMON. TENANTS IN COBIMON. 34 A tenant in common is not liable to his cotenant for the expense of improvements. See, Scott v. Guernsey, 48 N. Y. 106; Coapley v. Mahar, 36 Hun, 157; Taylor v. Baldwin, 10 Barb. 583, 626; Bowen v. Kaughran, 1 St. Rep. 121 ; Austin v. Barrett, 44 la. 488; Thurston v. Dickinson, 2 Rich. Eq. 317 ; Walter v. Greenwood, 29 Minn. 87. But see, Hitchcock v. Skinner, HofE. Ch. 21; Grannis v. Grannis, 3 S. 0. 299. 85. But a tenant in common, asking the aid of a court of equity for partition against his cotenant, who has made improvements, is entitled to the relief only upon the condition that any equities thereby arising shall be taken into account When actual partition is made and it is possible to do so, the improving tenant should be awarded the portion of the land upon which the improvements have been made. Ford V. Knapp, 102 N. Y. 135, distinguishing Scott v. Guernsey, 48 id. 106 ; see, further. Town v. Needham, 3 Paige, 545; In re Heller, id. 199; St. Felix v. Rankin, 3 Edw. Ch. 323; Conklin v. Conklin, 3 Sandf. Ch. 61; Green v. Putnam, 1 Barb. 500; Putnam v. Ritchie, 6 Paige, 890; Young v. Polack, 3 Cal. 208; Conrad v. Starr, 50 la. 470, 478; Bridgford v. Barbour, 80 Ky. 529; Scaife v. Thomson, 15 S. C. 337; Walter v. Greenwood, 29 Minn. 87 36. A tenant in common is liable to his cotenant for injury to the property by his negligence. See, Soule v. Mogg, 35 Hun, 79; Balch v. Jones, 61 Cal. 234; Chesley v. Thomp- son, 3 N. H. 9; Shepard v. Petit, 80 Minn. 119. 37. Tenant is not entitled to compensation for care of the joint prop- erty. See, Franklin v. Robinson, 1 Johns. Ch. 157. Unless he do some act by agreement not due from him, as a tenant Abell V. Clark, 23 Week. Dig. 559. 38. If a tenant in common purchase an outstanding title or incum- brance on the land, it inures to the equal benefit of all the tenants, and the tenant so purchasing is entitled to contribution. Burhans v. VanZandt, 7 N. Y. 523; 7 Barb. 91; Peck v. Peck, 110 N. Y. 64; Car- penter V, Carpenter, 131 id. 101; Sweetland v. Buell, 89 Hun, 543; see, further, Knolls V. Barnhart, 71 N. Y. 474; Van Home v. Fonda, 5 Johns. Ch. 388, 407; Allen V. Arkenburgh, 3 App. Div. 452; Austin v. Barrett, 44 la. 488; Davis v. King, 87 Pa. St. 261 ; Davis v. Giveus, 71 Mo. 94 ; Rippetoe v. Dwyer, 49 Tex. 498 ; Pome- roy's Bq. sec. 1231 ; Rotliwell v. Dewees, 3 Black. (U. S. ), 613 ; Weaver v. Wible, 35 Pa. St. 370 ; Lloyd v. Lynch, 38 id. 419, 434 ; Lee v. Fox, 6 Dana (Ky.), 171, 176 ; DuBois v. Campau, 24 Mich. 361 ; but see, Streeter v. Schultz, 45 Hun, 405 ; Wells v. Chapman, 4 Sandf. Ch. 313 ; 13 Barb. 561. 39. Grantee of a tenant in common, who has paid a mortgage on the estate can not obtain contribution from the other cotenants. Cambreleng v. Graham, 84 Hun, 550. 40. When property given and charged with the payment of a legacy creates a tenancy in common and not a trust. Greene v. Greene, 54 Hun, 93. XII. ESTATES IN SEVERALTY, JOIJSTT TENANCY AND IN COMMON. 537 JOINT TENANTS. 41. Notice to one of several tenants in common is not notice to the others. Snyder v. Sponable, 1 Hill, 567. 42. Husband and wife may hold an estate as tenants in common. Matter of Albrecht, 136 N. Y. 91 ; Kaufman v. SclioefEel, 46 Hun, 571 ; Brown v. Brown, 79 id. 44, see, p 552. 43. When one tenant in common may set up title against another. Hilton V. Bender, 2 Hun, 1. 44. When husband or wife take by survivorship. Craig V. Craig, 8 Barb. Ch. 376. 45. Patents. Owners of a patent are tenants in common, and each may use the patent or manufacture for his own benefit and without accounting to his cotenant. Dewitt V. Elmira Nobles Mfg. Co., 66 N. Y. 459, afE'g 5 Hun, 301. JNor is one tenant liable for the acts or agreements of his cotenant. MIcNeven v. Livingston, 17 Johns. 437. 46. Release. One tenant in common can not release a cause of action so as to affect the rights of a cotenant. Gock V. Keneda, 29 Barb. 130. JOINT TENANTS. 1. Joint- tenants own lands by a joint title created atone and the same time by the same instrument." Kent's Com. vol. 4, *357-8 ; 3 Bl. Com. 181 ; Am. & Eng. Ency. of Law, vol. 2, p. 1076 ; Woodgate v. Unwin, 4 Sim. 129. 2. A corporation can not be a joint tenant either with a natural per- son or another corporation. Dewitt V. San Francisco, 3 Cal. 289. 3. Joint tenants uniformly hold by purchase. Kent's Com. vol. 4, *357. 4. Estates in joint tenancy must be of the same duration or nature, and quantity of interest.'' Kent's Com. vol. 4, *357-8. 5. The beneficial acts of one joint tenant respecting the estate inure equally to the benefit of his cotenants. Kent's Com. vol. 4, *359; 2 Bl. Com. 183 ; see, further, "Tenants in Common," p. 536. 6. Each tenant may enter upon the land and exercise every reason- able act of ownership. Kent's Com. vol. 4, *359 ; see, further, "Tenants in Common," p. 535. 7. Joint tenants are severally liable to each other, not only in an ' See exceptions to this rule, Kent's Com. vol. 4, *358. * See exceptions to this rule, Kent's Com. vol. 4, *358. 68 538 XII. ESTATES IN SEVERALTY, JOINT TENANCY AND IN COMMON. JOINT TENANTS. action of account, but also in an action for money had and received, for the rents and profits of the estate. Kent's Com. vol. 4, *359 ; N. Y. Code Civ. Pro., sec. 1666 ; see, further, McMurray V. RawsoQ, 3 Hill, 59 ; Miller v. Miller, 7 Pick. 133 ; Go wen v. Sliaw, 40 Me. 56 ; ■Moses V. Ross, 41 id. 360; Blanton v. Van Zant, 2 Swan. (Tenn.) 376; see "Tenants in Common," p. 533. 8. Each tenant is liable to his cotenant for waste. Kent's Com. vol. 4, *859 ; N. Y. Code Civ. Pro,, sees. 1656-8. 9. Joint tenants have one entire and connected right, and must join and be joined in all actions affecting the estate.' Kent's Com. vol. 4, *359. 10. Joint tenants are seized per my et per tout and each has the entire possession of the whole and of every parcel. Kent's Com. vol. 4, *359. 11. For the purposes of alienation, each tenant is seized only of his undivided portion." Kent's Com. vol. 4, *360. 12. At common law, the entire tenancy or estate, upon the death of any of the joint tenants, went to the survivors, and so on to the last survivor, who took the entire estate, free from all charges ° or interest created by the deceased cotenant Kent's Com. vol. 4, *860. 13. Joint tenancy may be destroyed by a conveyance by one joint tenant of his interest to a stranger, or by a release to his cotenant, in which case the purchaser holds the share so purchased as a tenant in common with the remaining joint tenant or joint tenants, and the latter, if more than one, continue as between themselves to hold as joint ten- ants. Kent's Com. vol. 4, *363-4 ; see, further, Bowyer v. Judge, 11 East. 288. Joint tenancy may be severed voluntarily by deed, or partition may be compelled. Kent's Com. vol. 4, *864 ; N. Y. Code Civ. Pro., sees. 1533, 1533, 1537, 1538, 1548, 1590, 1656-8 ; see, further, " Tenants in Common," p. 533. A testator, before the Revised Statutes, devised a lot of land to his wife during her widowhood, and on her death to be " equally divided " 'N. Y. Code, sec. 1500 allows a separate action. 'Joint tenants have the whole for the purpose of tenure and survivorship, while each has only a particular part for the purpose of alienation. Preston on Estates, 1, 136. 'The charges created by a joint tenant, and judgments against him, bind his assignee and him as survivor. Kent's Com. vol. 4, *361 ; Preston on Abstracts, 11, 65. Dower does not attach to interest of deceased cotenant. Kent's Com. vol. 4, *360. It is said that a will does not operate upon title thereafter acquired ty a joint tenant by survivorehip. Kent's Com. vol. 4, *360. XIL ESTATES IN SEVERALTY, JOINT TENANCY AND IN COMMON. 53& between his two sons, and there were no words of inheritance in the will. Construction : The sons took a life estate only. Same will: By the common law as well as under the statute (2 R S. 307), a ten- ant in. common, in 'Order to maintain ejectment against his cotenant, must show an actual ouster, or some act amounting to a total denial of his right. The denial must be such as to amount to a disseizin of the cotenant, or establish an adverse possession on the part of the wrong doer. The defendant, who was a tenant in common with the plaintiff of the title, ''admitted himself to be in possession, claiming the premises in question as owner in fee thereof under a quit-claim deed " from a grantor who had owned an undivided share, and which deed purported to remise, lease, and forever quit-claim unto the defendant, his heirs and assigns forever, the same premises, describing them by metes and bounds. Construction : The defendant was not guilty of any ouster or denial of his cotenant's right, so as to subject him to an action of ejectment. By claiming title under such a deed merely, the defendant, it seems, only asserted his right to the share which his grantor held, and not to the whole premises. Edwards v-. Bishop, 4 N. Y. 61. From opinion. — " There would be no safety for tenants in common, if those who were occupants of the lands could he made disseizers, or an adverse possession be estab- lished, and the statute of limitations commence running against those who were out of possession on the evidence contained in this bill of exceptions. (4 Peters's Cond. Eep. 606, 608.) There is no adjudged case that goes so far. In Doe v. Prosser (Cowp, 217), it was said, that a refusal to pay rents and profits to a cotenant, is not sufficient without denying his title. But, if upon demand, by the cotenant of his share, the other denies to pay and denies his title, and continues in possession, such possession is adverse. Belmont v. O'Brien, 13 N. Y. 394. ^See pp. 684, 694, nor destroy the beneficial interest. Wright v. Miller, 8 N. Y. 9; Wallace v. Berdell, 97 id. 13; Short v. Bacon, 99 id. 275; Briggs v. Davis, 31 id. 574; 30 id. 15. •■Douglas V. Cruger, SON. Y. 15, 30. 'Wood V. Wood, 5 Paige, 595; see p. 684. XI. BENEFICIABY. 819 I. beneficiray's interest. 2. WHAT TBUST INTEREST MAT BE ALIENATED. its, whea he is entitled to a remainder in the principal fund held in trust, subject to his beneficial estate for a life or lives, or a shorty- term, to release his beneficial interest in the rents and profits, and thereby terminate the trust. Under this provision the beneficiary, if he takes a remainder, or acquires an outstanding remainder, may release his beneficial interest, thereby destroying the trust estate, and of course he can thereupon alienate the property. The result of this section is in many cases to dispose of the restraint, that has been so carefully thrown about the interests of beneficiaries under trusts, created under subd. 3 of sec. 76. See p. 395. See Oviutt v. Hopkins, 20 App. Div. 168. II. WHO MAY BE A BENEFICIARY. A trust may be created for the benefit of any person, although he be the creator of the trust. But "all deeds of gift, all assignments, verbal or written, of good.s, chattels or things in action, maile in trust for the use of the person making the same, shall be void as against the creditors, existing or sub- sequent, of such person." 2 R S. 131, sec. 1.' (See Code Civ. Pro., sec. 1871.) See ch. 417, L. 1897. sec. 23. Aliens may be beneficiaries, even where the trust property consists of land.' Persons not in being at the creation of the trust may be benefi- ciaries.' Corporations. There would seem to be no objection to creating a trust in which a corporation is beneficiary. The objection to such a trust has usually been that the rule against the suspension of the power of alienation was violated.' Senefldary also the trustee. A beneficiary in a trust can not also be a trustee thereof, but he may act as trustee for others, and if other trustees be named they may act for him.'^ ' Knapp V. McGowan, 96 N. Y. 75. 2 Austin V. Brown, 6 Paige, 443; Marx v. McGlynn, 88 N. Y. 376. 3 Manice v. Manice, 43 N. Y. 303, 386; Harrison v. Harrison, 36 id. 543; Woodgate V. Fleet, 64 id. 566; see Accumulation, p. 499. * Adams v. Perry, 43 N. Y. 487; Codman v. Grace, 113 id. 399; Booth v. Baptist Cliurcli, 126 id. 315. ' Wetmore v. Truslow, 51 N. Y. 338; Amory v. Lord, 5 Selden, 103; Tiffany v. 820 USES AND TRUSTS. II. WHO MAY BE A BENEFICIARY. But an appointment of a beneficiary as trustees, made by the court, on the death or resignation of the testamentary trustee, does not extin- guish the trust, whether the trust would be void or not in its inception, if the sole beneficiary had been appointed trustee by the instrument creating the trust.' Number of henejiciaries. It is no objection to a trust that during the authorized period of sus- pension of alienation more than two persons are to enjoy the same." Change of beneficiaries. A provision for shifting the beneficial interest from one person to anotlier is allowable.' When the beneficiary's family is included in provision for his sup- port, (see pp. 760 et seq.) No beneficiary named. When the trust instrument is silent as to the beneficiaries, no valid trust is created; it does not necessarily result that the creator of the trust is the beneficiary.' Third parties. Where three persons each executed a mortgage to a trustee to secure to each other an equal payment of notes, on which they were indorsers, the trust was not created for and did not inure to the benefit of the holdei's of tlie notes. ^ In contracts of insurance the persons for whose benefit the insurance was procured may stand in the relation of beneficiaries." When stockholders and members of corporations and partnerships Clark, 58 N. Y. 633; Lewiu on Trusts, 6th ed., 57; Parson on Trusts, 2d ed., sec. 59; Moke V. Norrie, 14 Hun, 138. See, also, pp. 716-717. ' Losey v. Stanley, 147 N. Y. 560. ^Woodgate v. Fleet, 64 N. Y. 566 ; Crooke v. County of Kings, 99 id. 431; Scher- merhorn v. Cutting, 131 id. 48. 'Harrison v. Harrison, 36 N. Y. 543 ; Holmes v. Mead, 53 id. 332. ■•Dillaye v. Greenough, 45 N. Y. 438 ; see cases ^osi, p. 833, n. 1. 'Seward v. Huntington, 94 N. Y. 104, rev'g 26 Hun, 217, distinguishing Lawrence V. Fox, 20 K. Y. 368 ; Burr v. Beers, 24 id. 178. •Duncan v. China Mutuallns. Co., 129 N.Y. 237 ; Phillips on Ins. sec. 383 ; 2 Pars, on Marine Ins. 45 ; Hooper v. Robinson, 98 U. S. 538 ; Henshaw v. M. 8. Ins. Co., a Blatchf . 99 ; Rogers v. Traders Ins. Co. , 6 Paige, 583 ; Waring v. Indemnity Fire Ins. Co., 45 N. Y. 612 ; see, " Trusts Arising from Contracts of Insurance," p. 681. XI. BENEFICIAET. 821 II. WHO MAY BE A BENEnCIARY. created a trust and the trustees issued certificates, transferees of the certificates were subrogated to the rights of the original holders/ Relations similar to those of a cestui que trust to the trustee. The relations between a savings bank and its trustees and directors is that of principal and agent, and that between the trustees and depositors is similar to that of a trustee and cestui que trust.' A trust relation is sometimes established between persons bidding in property on foreclosure for the benefit of bondholders, which authorizes the bondholders to take proceedings for the protection of their rights similar to those pertaining to a beneficiary under an express trust' The holders of bonds secured by mortgage may bring an action to foreclose the mortgage in case of improper refusal of the trustee to do so after demand,' and also without demand where a demand would be useless, or is impossible, as where the trustee has left the country or has become insane^' But the right of bondholders to a fund out of which the debt is iigreed to be paid establishes no trust relation between the bondholders and the company authorizing accounting.' 1. CERTAINTY OF BENEFICIARY. The beneficiary must be a person so named or described as to be as- certainable or capable of identification by the court. This has been the law of the state of New York, applicable also in the case of trusts created for charitable uses. However it is to be observed, that by the Laws of 1893, ch. 701, by the Real Pioperty Law, sec. 93, a qualification or extinction of the former rule has been attempted as to beneficiaries jn trusts for religious, charitable, educational or benevolent purposes, and in such cases it seems that the trust may be valid, although the bene- ficiaries be indefinite or uncertain. See, " Trusts for charitable uses, " post, p. 847. Disregarding the new statute for the present discussion, the usual rule is that the donor must use such language as will so describe the bene- ficiary or a definite class of beneficiaries, that the court can, from the instrument creating the trust, determine what persons have or within 'Rice V. Rockefeller, 134 N. Y. 174, rev'g 56 Hun, 516. 'HuQ V. Carey, 83 N. Y. 65. ^Zebley v. The Farmer's Loan & Trust Co., 139 N. Y.. 461, rev'g 63 Hun, 541 ; Brooks V. Dick, 185 N. Y. 652 ; "White v. Wood, 139 id. 527. ^Davis V. N. Y. Concert Co., 41 Hun, 492. 'Bttlinger v. The Persian Rug & Carpet Co., 142 N. Y. 189, afE'g 66 Hun, 94. 'Thomas v. N. Y. & Greenwood R. Co., 139 N. Y. 163. 822 USES AND TKUSTS. II. WHO MAY BE A BENEFICIARY. ■ 1. CERTAINTY OF BENEFICIARY. the due continuance of the trust shall have the right to enforce the same. This doctrine rests on the rule that a certain designated beneficiary is essential to the creation of a valid testamentary trust, and that a trust without a beneficiary who can claim its enforcement is void.' "When a person presents himself to the court claiming that he is the beneficiary entitled to enforce the trust, the instrument creating the trust must be found to be sufficiently definite in designating the bene- ficiary to enable the court to identify such person as the one possessing such right, or if the trust be for the benefit of a class, there must be such a description of the class as will enable the court to judicially recognize it, and it then simply remains for the beneficiary to show that he is a member of such class. Tilden v. Green, supra. Such are the common trusts for the benefit of children, heirs at law, next of kin, nephews, etc., but even though the designation be less definite, yet it will be sufficient if the intended beneficiaries can be gathered from an examination of the whole instrument." If, however, the creator of the trust, instead of making the selection, confer power upon the trustee to make such selection, the same rule applies, that he must definitely describe the class of persons, in whose favor the power may be exercised, with such certainty, that the court can ascertain the object or objects of the power, to the end, that, when they shall seek the enforcement of the trust, the class may be identified as that intended by the donor. Tilden v. Green, supra. For, obviously, if the selection of the beneficiary by the trustee de- pend upon a discretionary selection from an unlimited field of persons, or classes of persons, it follows, that there being no language enabling the court to recognize the beneficiary, no person could demand an en- forcement of the trust, as his very necessary status depends upon the exercise of the discretion by the very trustee against whom the trust was sought to be enforced and by whom such discretion might never be exercised. If, however, the class from whom the selection is author- ized be sufficiently described to enable the court practically to ascertain it, and hence those falling within it, the court could, in case of failure by the trustee to make selection, decree the execution of the trust.' 'Tilden v. Green, 130 N. Y. 29, 45 ; Levy v. Levy, 33 id. 107 ; Prichard v. Thomp- son, 95 id. 76 ; Holland v., Alcock, 108 id. 312 ; Read v. Williams, 125 id. 560. 'Kinnier v. Rogers, 42 N. Y. 537. 3 Power v. Cassidy, 79 K. Y. 602, 613; Owens v. The Missionary Society of the M. E. Church, 14 id. 408; Tilden v. Green, 130 id. 29, 64, 65; Read v. Wil- liams, 125 id. 560, 569; Holland v. Alcock, 108 id. 312, 320, 321, 323; sec. 137 XI. BENEFICIARY. 823 II. WHO MAY BE A BENEPICIAEY. 1. CERTAINTY OF BBNEFIOIAllT. In what manner the trust may be enforced, in case the trustee should not finally make selection, has received judicial notice. Section llOof the Real Prop. Law provides that " if the trustee of the power, with the right of selection, dies leaving the power unexecuted, its execution must be adjudged for the benefit, equally, of all persons designated as bene- ficiaries of the trust." In case, however, the trustee from absence, in- capacity, or for other reason should not make the selection, there is holding that the court would have the power similar to that defined in section 1-10 of the Real Property Law.' It is observable that the question of a proper designation of a benefi- ciary by the testator is quite distinct from that of the power of trustees to select the beneficiary. Such a power may be exercised, but the dis- cretion of the trustee can not be substituted for the unlimited discretion of the testator. The power of selecting the beneficiary from an ascer- tainable class, and of allotting the share or sum which each shall receive, and hence of entirely excluding members of the class from all participa- tion, exists by force of statute, and is sanctioned by authority.'" When the designation of the beneficiary will be regarded as too indefi- nite has been determined in a number of cases on differing states of facts.' On the contrary, a trust was sustained where the testator gave to his executors his residuary estate "to be divided by them among such Roman Catholic charities, institutions, schools or churches in the city of New York," as the majority of his executors should decide, and in such pro- portions as they should think proper.* The court, however, has since declined to extend the holding in that case, and seems to approve it with reluctance." In pursumg the investigation those cases should be dis- of the Real Prop. Law, provides that "trust power does not cease to be imperative, where the grantee has the right to select any and exclude others of the persons designated as the beneficiaries of the trust." ' Real Prop. L., sec. 163; Prichard v. Thompson, 95 N. Y. 83; Holland v, Alcock, 108 id. 313; People v. Powers, 147 id. 104, 109. 'Real Prop. L., sees. 115, et seq. and cases, supra. ^Tilden v. Green, 130 N. Y. 39; Pritchard v. Thompson, 95 id. 76; Rose v. Hatch, 135 id. 427; Fisdlck v. Town of Hempstead, id. 581; Jlatter of O'Hara, 95 id. 403; Holland v. Alcock, 108 id. 813; O'Conner v. Gifford. 117 id. 375, 380; Horton v. Cantwell, 108 id. 355, 365; Matter of Ingersoll, 131 id. 573, rev'g 59 Hun, 571; People V. Powers, 147 N. Y. 104, rev'g 83 Hun, 449. See, Beekman v. Bonsor, 33 N. Y. 398; Riker v. Leo, 115 id. 93, 103; Cross v. The U. S. Trust Co., 131 id. 330, 348; Gross V. Moore, 68 Hun, 413. •> Power V. Cassidy, 79 N. Y. 603. s Pritchard v. Thompson, 95 N. Y. 76; Matter of Will of O'Hara, id. 418; People v. Powers, 147 id. HI. 824 USES AND TRUSTS. II. WHO MAY BE A BENEFICIARY. 1. CERTAINTY OF BENEFICIAEY. tinguished where it was held that no trust was created, but a valid gift was made directly to a class of objects.' But even where a gift is direct it may be void for uncertainty.' It is however sufficient in such cases, if the legatees be so described that they can be ascertained and known when the right to receive the legacy vests. ° Manner of designation. Although the beneficiaries must be sufficiently described to permit their identification by the court, when they shall appear to enforce the trust, yet it is not necessary that they shall be designated by name if the description be sufficiently accurate to permit of their identification.* Nor is an error in name material if it may be gathered from the will ■what persons or class of persons are intended.' In some cases the court have been able to identify the beneficiary, where it was not correctly described by name.' While in other cases the court failed to recognize the claimant as entitled to the gift.' Corporations and voluntary associations. It sometimes happens that a gift is to trustees for a corporation to be formed. This is sufficient if there be a provision for such formation within two designated lives in being." The question has sometimes arisen whether a devise to the trustees or other officers of the corporation is a gift to such officers or to the corpo- ration itself. In some cases the gift has been held to be to the trustees.' 'Bird V. Merklee, 144 N. Y. 544; rev'g Schell v. Merklee, 75 Hun, 74. 'Wyman v. Woodbury, 86 Hun, 277; Levy v. Levy, 33 N. Y. 97. ^Shipman v. Rollins, 98 N. Y. 311; Holmes v. Mead, 52 id. 332; Lefevre v. Lefevre, 59 id. 434; Lougheed v. Dykeman's Baptist Church, 129 id. 311. ■■Hoppock V. Tucker, 59 K. Y. 302, 208. 'Matter of Wehrhane, 40 Hun, 543, aff'd 110 N. Y. 678; New York Institution for the Blind v. How's Executors, 10 id. 84; Lefevre v. Lefevre, 59 id. 434; Preston v. Howk, 3 App. Div, 43. " Lefevre v. Lefevre, 59 N. Y. 434; St. Luke's Home v. Association for Indigent Females, 52 id. 191; Preston v. Howk, 3 App. Div. 43; Matter of Wehrhane, 110 N. Y. 678. ' Riker v. Leo, 115 N. Y. 93. sRose V. Rose, 4 Abb. Ct. App. 108; Booth v. Baptist Church, 126 N. Y. 315; Fosdick V. Town of Hempstead, 125 id. 581; Kearney v. St. Paul Missionary Society, 10 Abb (N. C.) 274; Burrill v. Boardman, 43 N. Y. 354; Philsou v. Moore, 33 Hun, 152; Cruikshank v. Home, etc., 113 N. Y. 387; Dammert v. Osborn, 140 id. 30. 'Adams v. Perry, 43 N. Y. 487; Dodge v. Pond, 33 id. 69; Cootman v. Grace, 112 id. 299; Williams v. Williams, 8 id. 535. XI. BENEFICIARY. 825 ir. WHO MAY BE A BENEFICIARY. 1. CBBTAINTY OF BENBFICIABY. But in some cases it has been held to be a direct gift to the institu- tion itself.' But an immediate gift to a voluntary or unincorporated association is void.' III. BENEFICIARY'S RIGHTS AND REMEDIES. While the creator of a trust may reserve a power of revocation, or provide that the trust shall end upon the happening of specified events, or upon the doing of certain acts," yet in the absence of fraud or mistake,^ if no power of revocation be reserved, the destruction or im- pairment of the trust is beyond the power of the creator of the trust, or the trustees, or the court." It is the right of the beneficiary to preserve the integrity of the trust property against any effort of the trustee to impair it,° or against the hostile act of a third person, if the trustee refuse to do so. This right may be exercised in various ways, some of which have been pointed out elsewhere.' The beneficiary may avoid unauthorized sales," may follow into lands trust funds which have been misappropriated by the trustee and applied to their purchase, and elect either to hold the unfaithful trustee per- sonally responsible, to claim the lands, or to cause the lands to be sold for liis indemnity, and hold the trustee for any deficiency,' or in case 'New York Institution for the Blind v. How's Executors, 10 N. Y. 84 ; Preston v. Howk, 3 App. Div. 43, 47 ; Matter of Wesley, 43 N. Y. St. Rep. 953 ; Cuirin v. Pan- ning, 13 Hun, 458 ; Manice v. Manice, 43 N. Y. 387 ; The Consistory of the Re- formed Dutch Church V. Brandow, 53 Barb. 238 ; The Att. General v. Minister, etc., 36 N. Y. 452. 'Owens V. Missionary Society, etc., 14 N. Y. 380 ; Marshall v. Downing, 33 id. 366; Rice V. Rockefeller, 134 id. 174 : Banks v. Phelan, 4 Barb. 80 ; Sherwood v. Am. Bible Society, 4 Abb. Ct. App. Dec. 337 ; 1 Keyes, 561 ; Marx v. McGlynn, 88 N. Y. 357 ; White v. Howard, 46 id. 144, 163 ; First Pres. Society v. Bowen, 31 Hun, 389 ; Follett V. Badeau, 36 id. 253. 'Van Cott V. Prentice, 104 N. Y. 45; Locke v. Parmer's Loan & Trust Co., 140 id. 135. "Barnard v. Gantz, 140 N. Y. 249. *See " Indestructibility of an express trust," p. 683. *Penaerga3t v. Greenfield, 137 N. Y. 33, 30. •"See pp. 811, 812. speople V. Open Board, etc., 93 N. Y. 98, 103; Hubbell v. Medbury, 53 id. 98; Smith V. Bowen, 35 id. 83. 'Ferris v. Van Vechten, 73 N. Y. 113 ; Holmes v. Oilman, 138 id. 369 ; Baker v. D sbrow. 18 Hun. 39. 104 826 USES AND TRUSTS. III. beneficiary's rights and REMEDIES. of divisible investments the beneficiary may accept such as he chooses and reject others.' And whea a trustee, in breach of his trust, disposes of the trust property, the beneficiary may pursue it or its proceeds wherever he can trace them, so far as the law will permit him to do so, without re- lieving the trustee.' A trust creditor upon an accounting and in bankruptcy or insolvency is not entitled to preference over general creditors of the insolvent merely on the ground of the nature of the claim but must show an equity founded on some agreement, or relation of the debt to the assigned property, entitling him according to equitable principles to preferential payment.' Whether heneficiary may he estopped. See on this subject, ante, p. 748. This election on the part of the beneficiary indicates that he may be estopped by his election, acts or laches. As the Eeal Prop. L., sec. 83, prohibits a transfer by the beneficiary of his interest, it would seem that a cestui que trust could not be estopped from asserting that the act of the trustee, although done with the consent of the beneficiary, effected a transfer of the beneficial interest in violation of that section.* But it has been held' that where a trustee to sell, or one having a power of sale in trust, bids in the property at the sale for himself, the transaction is not void but voidable at the election of the beneficiary (when sui juris), and the latter may, if he choose, hold the trustee to the consequence of his act. And where there is no legal incapacity in the cestui que trust and he has full knowledge of all the facts, and is free from undue influence arising out of the relation of the parties, a clear and unequivocal afiirm- ance of the sale may conclude him. Ordinarily, the acceptance of the proceeds of such sale by the bene- ficiary with full knowledge would be such an affirmance. But, as between the immediate parties, the act is open to explanation, and where such proceeds are received under protest and within an express reservation of the right to controvert the validity of the sale it does not estop or preclude a subsequent proceeding by the beneficiary to dis- affirm and obtain a resale. (Grover and Daniells, JJ., contra.) 'King V. Talbot, 40 N. Y. 76. "Fowler v. Bowery Savings Bank, 113 N. Y. 450, 455. 'Matter of Cavin v. Gleason, 105 N. Y. 256. ^Douglas V. Cruger, 80 N. Y. 15, 19, 20 ; Bliven v. Robinson, 83 Hun, 208. ^Boerum v. Schenck, 41 N. Y. 182. XI. BENEFICIARY. 827 III. beneficiary's rights and remedies. So, also, an estoppel has also been held to operate against a benefi- ciary receiving the avails of the sale of trust property.' It has been held that where a certain sum is bequeathed to execu- tors in trust, to pay the interest thereof at a fixed and stated rate to one, and upon his death to divide the principal among others, the executors can not, without the consent of the cestui que trust, or, in case they are infants, without an order of the court, set apart and appropriate bank stocks to the satisfaction of the trust, and release the residue of the es- tate from its liability to perform the trust. The cestui que trust may assent to and accept such an appropriation ; but if, before this is done, new interests and new parties have intervened, the situation of the property at the time of such intervention must de- termine the rights of all who claim to be interested in it.'" In another case ' it was held that a married woman may acquiesce in an unauthorized investment of trust property given to her sole and sepa- rate use, so as to bar her right of action against her trustee therefor. She is not estopped, however, by such acquiescence from seeking a withdrawal of the fund from the unauthorized investment, and the placing of it as required by the trust. The opinion in the above case" contains the following : " It is stated generally in the text-books that acquiescence, by the cestui que trust, in a breach of trust by the trustee, Iiss. Soc, XXI. CHAKITABLE USES. 851 System of administering charily in New York. In the place of the system of charitable uses obtaining in England, there exists in the state of New York a system established by the stat- ute law for organizing corporate bodies with power to administer public charities, with the legal capacity to receive and hold property for that purpose." Holland v. Alcock, 108 N. Y. 312; Levy v. Levy, 33 id. 97, l]2e4 N. Y. 325. Grift to executors of all property " for the payment of the bequests and legacies" and for the purpose of executing the trusts, was a power to sell the property of the estate and not a trust. Chamberlain v. Tay- lor, 105 N. Y. 185, digested p. 934. Trust to partition, upheld as a power in trust. Henderson v. Hender- son, 113 K Y. 1. See, also, Hawley v. James, 16 "Wend. 60, 149. The will of P., after directing the payment of his debts, and after cer- tain specific bequests and legacies, by its terms gave the residuary estate, real and personal, to his daughter M.; then followed a clause giving all of his estate to his executors, in trust, for the payment of the debts and legacies. P. died insolvent, seized of certain real estate, the rents and profits of which M. received until the said real estate was sold under the power in trust contained in the will. Action brought by a creditor of P. to compel M. to account for and pay over the rents and profits so received by her. Construction : The action was not maintainable; no trust was created by the will with respect to the real estate, but simply a power in trust (1 R. S. 729, sec. 56), and the executors or trustees were not entitled to receive the rents and profits; the title passed to M. on the death of the testator, sub- ject to the execution of the power, and remained in her until divested by such execution, and until then she was entitled to the possession and lawfully received the rents and profits; the will did not charge the real estate witli the payment of the debts; but, conceding there was such a 886 powEEa II. HOW POWER MAT BE CREATED. 2. POWERS IN TRUST ARISING UNDER SECTIONS BBVENTY-SETEN AND SEVENTY- NINE. charge, the debts only became a lien enforceable in equity ; there was no personal liability on the part of M. to pay the debts, and in the ab- sence of such liability there was no element of trust by which she could be made liable to account. There was no conversion of the real estate into personalty until the execution of the power of sale. Glifl v. Moses, 116 N. Y. 144, ag'g 44 Hun, 312. An attempted trust was valid as a power in trust. Woerz v. Bade- macher, 120 N. Y. 63, 68, digested pp. 588, 637. A merely passive trust may not be validated as a power in trust. But a trust to convey upon the happening of some event is active, and so may be validated as a power in trust. In cases where a trust is created, which is'^iot authorized by the 55th section of the statute, but is validated as a power in trust by the 58th section, no estate passes at all, and the title remains in the grantor, or descends to the persons otherwise entitled, as the case may be, the grantee being merely the trustee of a power. Townshend v. Frommer, 125 N. Y. 446. Citing 2 R. S. 739, sees. 58, 59; N. Y. Dry Dock Co. v. Stillman, 30 N. Y. 174; Downing v. Marshall, 33 id. 266. See, also, Hawley v. James, 16 Wend. 60. Powers in trust are favored. Devise, in terms to executors or trus- tees, to sell or mortgage, may be construed as a power ; then the title descends to heirs or devisees. Steinhardt v. Gunningham, 130 N. Y. 292, digested p. 642. An antenuptial tru.st deed, which conveys real property to a trustee, in trust, to receive the rents, or to permit the grantor to take, hold and use the same for her use and benefit at her election, and at her death to convey it to such persons as she shall appoint by her deed or will, is valid as a power, but has no further legal operation, and leaves the title to the property in the donor of the power. Wainwright v. Low, 57 Hun, 386, affd 132 N. Y. 313. Where the testator gave one-third of his estate, real and personal, to his wife, and the residue to his eight children and a grandchild, to be paid over within a year after the youngest child became twenty-one, and further provided : " I give and devise all my real and personal estate, of what nature or kind so ever, to my wife, Rhoda, executrix * * * * in trust, for the payment of my just debts, and the lega- cies above specified, with power to sell and dispose of the same," it was held, that Rhoda took, not an express trust, but a trust power, III. CREATION OF POWERS AND EEVOCATION THEREOF. 887 II. HOW POWER MAY BE CREATED. 2. POWBKS IN TRUST AEISING UNDER SECTIONS SEVENTY-SEVEN AND SEVENTY- NINE. whicli was invalid, however, on account of the unlawful suspension of the power of alienation. Matter of Butterfield, 133 N. Y. 473, aS'g Matter of Christie, 59 Hun, 153. By his will, B. gave all his property to his executors, in trust, to re- ceive the rents, etc., to sell, convey or otherwise dispose of it as they might deem best, and finally " to apply the said estate, * * * to- gether with the proceeds of any part or portions sold," as thereafter pro- vided. The testator then gave to each of his said executors two-sevenths of his estate in fee, and the remaining three-sevenths to be held by them, in trust, for certain beneficiaries named. B. had contracted to sell a portion of his real estate to P. Before the time fixed for the delivery of the deed, B. died. His executors executed a deed to P., and received from him the purchase money unpaid. P. subsequently conveyed to D., who conveyed to plaintiff's testator. In an action for a specific performance of a contract by defendant to purchase said premises, he objected to the title on the ground that the executors had no power to convey in performance of their testator's contract, and so their deed vested no title in P. Construction : Untenable ; while the executors did not take any legal estate under the preliminary devise in trust of all the testator's property ; the trust being an active one and enforceable as a power in trust, included every disposable interest, and gave to the executors power to convey a perfect legal title to the real estate in question, irrespective of the fact that the testator had by his contract to sell the same, changed in equity the character of his estate therein. Holly v. Hirsch, 135 N. Y. 590, rev'g 68 Hun, 241 ; Eoome v. Phillips, 27 N. Y. 357 ; Lewis v. Smith, 9 id. 502, distinguished and limited. Note 1. — "A devise in trust to receive rents, issues and profits, where there is no direction to apply to the use of any person for any period, and a power to sell prop- erty, which is not authorized for the benefit of creditors, or of legatees, or to satisfy a charge upon the same, can not be deemed to be among the express trusts enumer- ated in the section. (Downing v. Marshall, 33 N. Y. 366, 877; Cooke v. Piatt, 98 id. 36; Henderson v. Henderson, 113 id. 1.)" (594.) Note 2. — ' 'Brett's executors did not take any legal estate under the preliminary de- vise in trust to them of all of testator's property ; but the trust, being an active one and enforceable as a power in trust, comprehended and subjected to its execution every disposable or realizable interest in the testator's estate. The power in trust had all the character of a trust, and being designed for the purpose of effectuating a trust, it was imperative. (2 Sugdoa Powers, 158; 1 Perry Trusts, 248.)" (596.) 888 POWERS. , II. HOW POWER MAY BE CREATED. 3. powers in trust arising under sections seventt-seten and seventy- nine: Trust limitations given effect as powers in trust— as powers tliey are unlimited. Reynolds v. Denslow, 80 Hun, 359. When executors do not take title to real estate but power in trust. Matter of Spears, 89 Hun, 49. See furtlier, Smith v. Chase, 90 Hun, 99; Connor v. Watson, 1 App. Div. 54; Trowbridge v. Metcalf, 5 id. 318; Arnold v. Gilbert, 3 Sandf. Ch. 531; -5 Barb. 190. III. CAPACITY TO TAKE AND EXECUTE A POWER. Eeal Prop. L., sec. 121— Capacity to take and execute a power — " A power may be vested in any person capable in law of holding, but can not be exercised by a person not capable of transferring real prop- erty." ' 1 R. S. 735, sec. 109 (repealed by Real Prop. L., sec. 300), used the word " aliening' instead of "transferring," and made an exception of the case in the foHowing section (1 R. S. 737, sec. 110), providing that " a married woman may execute a power, during her marriage, by grant or devise, as may be authorized by the power, without the con- currence of her husband, unless by the terms of the power its execution by her, dur- ing marriage, is expressly or impliedly prohibited." This section was repealed and omitted by the Real Property Law as were also 1 H. S. 735, sec. Ill andl R. S. 737, sec. 130, which are as follows : Section 111. "No power vested in a married woman, during her infancy, can be exercised by her, until she attain her full age." Section 130. "When a married woman, entitled to an estate in fee, shall be author- ized by a ^ower, to dispose of such estate during her marriage, she may, by virtue of such power, create any estate, which she might create if unmarried." See Married women, p. 70. Section one hundred and ten of the article aforesaid (1 E. S. 735) completely takes away the disability of coverture in respect to the exe- cution of powers. A married woman may, without the concurrence of her husband, execute any power which may lawfully be conferred on any person unless its execution during coverture be expressly or impliedly prohibited by the terms of the power. A power, general or special, beneficial, or in trust, may be reserved to a married woman by a marriage settlement, by which the entire legal estate is vested in trustees. Wright v. Tallmadge, 15 N. Y. 307, di- gested p. 874. IV. CAPACITY OP MARRIED WOMAN TO TAKE POWER. Real Prop. L., sec. 122. Capacity of married woman to talie power. — " A general and beneficial power may be given to a married woman, to ' As to who may take and transfer real property see "Who may take and create estates," ante, p. 1 III. CREATION OF POWERS AND REVOCATION THEREOF. IV. CAPACITY OF MARRIED WOMAN TO TAKE POWER. dispose, during her marriage, and without concurrence of her husband, of real property conveyed or devised to her in fee." ' 1 R. S. 733, sec. 80 (repealed by Real Prop. L., sec. 300}, was the same. 1 E. S. 736, sec. 117 (repealed and not reenacted by the Real Prop. L.), was as follows : " If a married woman execute a power by grant, the concurrence of her husband, as a party, shall not be requisite, but the grant shall not be a valid execution of the power, unless it be acknowledged by her on a private examination, in the manner prescribed in the third chapter of this act, in relation to conveyances by married women.'' 1 R. S. 735, sec. Ill, repealed as above stated. 1 R. S. sec. 80, 735, sec. 110 were construed not to apply to personalty. Wadhams V. American Home Miss. Soc'y, 12 N. Y. 415. V. CAPACITY TO TAKE A SPECIAL AND BENEFICIAL POWER. Eeal Prop. L., sec. 123. Capacity to take a special and beneficial power. — "A special and beneficial power may be granted, "1. To married woman, to dispose, during the marriage, and without the concurrence of her husband, of any estate less than a fee, belonging to her, in the property to which the power relates ; or, "2. To a tenant for life, of the real property embraced in the power, to make leases for not more than twenty-one years, and to commence in possession during his life, and such a power is valid to authorize a lease for that period but is void as to the excess." 1 R. S. 733, sec. 87 (repealed by Real Prop. L., sec. 300), omitted the last clause in subdivision 2. See, Real Prop. L., sec. 185, "Power of life tenant to make leases," p. 963; sec. 136, "Effect of mortgage by grantee," p. 963. VI. RESERVATION OP A POWER. Eeal Prop. L., sec. 124. Eeservation of a power. — " The grantor in a conveyance may reserve to himself any power, beneficial or in trust, which be might lawfully grant to another; and a power thus reserved, shall be subject to the provisions of this article, in the same manner as if granted to another." 1 R. 8. 735, sec. 105 (repealed by Real Prop. L., sec. 300), was the same. Where by a deed the grantor reserves a power to create a future es- tate in the land conveyed, the power, unless coupled with a trust, is not imperative, but its execution depends entirely upon the will of th& grantor. It is only when a power is in trust that a court of equity will decree its execution. 'See, Married women, p. 64. 112 890 POWERS. VI. RESEEVATION OF A POWER. T., who was a widower, conveyed certain real estate to Ms children, reserving to himself a right to devise by a will a life estate in one-third thereof to "any hereafter taken wife." The grantor thereafter married, and died without executing the power. The widow was not entitled to any interest in the land ; that the reservation at most created a mere power, and so, to be executed or not at the pleasure of the grantor. As to whether the reservation can be treated as a power within the meaning of the Revised Statutes (1 R. S. 732, sec. 105), qucere. Towler V. Towler, 142 N. Y. 371, aff'g 65 Hun, 457. VII. EFFECT OF POWER TO REVOKE. Real Prop. L., see. 125. Effect of power to revoke. — " Where the grantor in a conveyance reserves to himself for his own benefit, an ab- solute power of revocation, he is to be still deemed the absolute owner of the estate conveyed, so far as the rights of creditors and purchasers are concerned." 1 R. S. 733, sec. 86 (repealed by Real Prop. L., sec. 300), was the same. See, Real Prop. L., sec. 236, Conveyances with intent to defraud purchasers and encumbi-ancers void (3 R. S. 134, sees. 1, 3 repealed), sec. 337, Conveyances with in- tent to defraud creditors void (3 R. S. 137, sec. 1, not repealed) ; sec. 338, Convey- ances void as to creditors, purchasers, and encumbrancers, void as to heirs and as- signs (3 R. S. 137, sec. 3, not repealed); see, also, sees. 329, 330, 331, 333 and 373. See, also Real Prop. L., sec. 138, post, p. 891. The reservation by the settlor of a trust of a right in himself to re- voke the trust does not work its destruction, where the rights of the settlor's creditors are not involved. Yon Hesse v. MacKaye, 136 N". Y, 114, aff'g 62 Hun, 458. VUI. POWER TO SELL IN A MORTGAGE. Real Prop. L., sec. 126. Power to sell in a mortgage. — "Where a power to sell real property is given to a mortgagee, or to the grantee in any other conveyance intended to secure the payment of money, the power is deemed a part of the security, and vests in, and may be exe- cuted by any person who, by assignment or otherwise, becomes entitled to the money so secured to be paid." 1 R, S. 737, sec. 133 (repealed by Real Prop. L., sec. 300), was practically the same. IX. WHEN POWER IS A LIEN. Real Prop. L., sec. 127. When a power is a lien. — "A power is alien or charge on the real property which it embraces, as against creditors, purchasers, and encumbrancers in good faith and without notice, of or III. CREATION OF POWERS AND REVOCATION THEREOF. 891 IX WHEN POWER IS A LIEN. from a person having an estate in the property, only from the time the instrument containing the power is duly recorded. As against all other persons, the power is a lien from the time the instrument in which it ia contained takes effect." 1 R. S. 735, sec. 107 (repealed by Real Prop. L., sec. 300), omitted the word "en- cumbrancers." X. WHEN POWER IS IRREVOCABLE. Eeal Prop. L., sec. 128. When power is irrevocable. — "A power, whether beneficial or in trust, is irrevocable, unless an authority to re- voke it is granted or reserved in the instrument creating the power." 1 R. S. 735, sec. 108 (repealed by Real Prop. L., sec. 800), was the same. A trust may be revoked where a power of revocation has been reserved, see Termination of express trusts, ante, p. 694. The execution of a power contained in a will is revocable by the revocation of the will itself. Austin v. Oakes, 117 K. Y. 577. Power in a will is revoked by the birth of a posthumous child entitled under the statute to take the land as heir at law. iSmiih v. Robertson, 89 N. Y. 555. Will by an unmarried woman in execution of power is not revoked by her subsequent marriage. McMahon v. Allen, 4 E. D. Smith, 519. IV. PURPOSES FOR WHICH POWERS MAY BE CREATED. Powers may be created for any lawful purpose,' and to do any act which the grantor might himself do.' Reynolds v. Denslow, 80 Hun, 359. See Real Prop. L., sec. 111. Some of the more usual purposes for which powers are created are given below. I. POWER OF DISPOSITION BY WILL.' 1. Power of apointment in default of issue. Vernon v. Vernon, 53 K T. 531; Mott v. Ackerman, 93 id. 539. 2. Power to devise in case grantee married. Low V. Harmony, 72 N. Y. 408. 3. Life tenant with power to alien by will. Hume V. Randall, 141 N. Y. 499; see, also, post, p. 955. 4. Devise in trust for benefit of F. for life, with direction to trustee to make over remainder to F.'s appointees by will. Cutting V. Cutting, 86 N. Y. 522; Mott v. Ackerman, 93 id. 359. 5. Gift by will to S. to be paid to such persons as she should by will appoint in case she died in the lifetime of the testator, which she did. Matter of PifEard, 111 N. Y. 410. 6. Power of selection. Tilden v. Green, 130 N. Y. 29; Drake v. Drake, 134 id. 330; Montignani v. Blade, 145 id. Ill; see, also, post, p. 965. 7. Rights of objects of the power, in case of default in execution, and of no gift over. Tilden v. Green, 130 N. Y. 39; Smith v. Floyd, 140 id. 337; Towler v. Towler, 143 id. 371. 8. General right of disposal includes disposal by will. Matter of Gardner, 140 N. Y. 133. 'For what is an unlawful purpose, see, post, p. 1016. 'In order to create a valid power, either beneficial or in trust, it is indispensable that the object or objects to be accomplished by its execution shall be specified in or clearly ascertainable from the instrument by which the power is attempted to be created. Sweeney v. Warren, 137 N. Y. 436 ; see, Jennings v. Conboy, 73 id. 230 ; Clapp V. Byrnes, 3 App. Div. 284 ; Beneficiary, p. 821; Charitable uses,, p. 847. 'See, ' ' V. The estate or interest taken by the grantee of the power " post, p. 955 where the effect of a power to devise is considered. For power of disposition by will in addition to the cases here given, see Execution of powers, post, p. 975. . Kane v. Kane's Executors, 9 N. Y. 113, 114 ; White v. Hicks, 33 id. 383; Huttonv. Benkard, 93 id. 295; Crooke v. County of Kings, 97 id. 421 ; Austin v. Oakes, 117 id. 577 ; Dana v. Murray, 123 id. 604 ; N. Y. Life Ins. & Trust Co. V. Livingston, 133 id. 125; Hillen v. Iselin, 144 id. 365; Thomas v. Snyder, 43 Hun, 14 ; Lockwood v. Mildeberger, 5 App. Div. 459 : Fargo v. Squiers, 6 id! 485 ; Stewart v. Keating, 15 Misc. 44 ; Metropolitan Trust Co, v. Seaver 17 id 466 (893) IV. PURPOSES FOR WHICH POWERS MAY BE CREATED. 893 I. POWER OF DISPOSITION BY WILL. Will gave all property, real and personal, to daughter 0. except cer- tain legacies enumerated, then this clause : "all my remaining property * * I give, devise and bequeath to my daughter C. for her support and comfort, to be held and controlled by her, and at her death to pass to lier heirs, and if she have 'no heirs to be disposed of by her will" etc. C. took estate for life with power of appointment in default of issue. Vei-non v. Verno7i, 53 N. Y. 351, digested p. 96. A power to devise, in case the grantee married, gave a conditional power of disposition. Low v. Harmony, 72 N. Y. 408, digested p. 1009. The rule of the common law that where a person has a general power of appointment by will over property, and has exercised the power, the property forms a part of his assets and is subject to the claims of credi- tors, and that too in preference to those of a legatee, or of the gratuitous appointee, was abrogated by the provision of the Revised Statutes (1 B. S. 732, sec. 73) abolishing powers as then existing by law, and de- claring that their creation should be thereafter governed by the pro- visions of the article ''of powers." It was the legislative intent to make this article a complete and exclusive code on the subject. The said article includes, and is applicable as well to powers con- cerning personalty as to those affecting real estate. The will of G. gave certain estate, real and personal, to her executor, in trust,' to take the rents and profits during the life of R, her son, and apply them to his use, and upon his decease to make over the body of the estate to whomever he by his will appointed to receive it. F. made an appointment as prescribed. Construction : The will created a valid general tmd beneficial power within the pro- visions of the Eevised Statutes (1 R S. 732, sees. 74, et seq.); and the estate was not chargeable after the death of F. with a judgment obtained against him in his lifetime. Cutting v. Cutting, 86 N. Y. 522, rev'g, in part, 20 Hun, 360. M. devised his real estate to his executors in trust, to hold one-third thereof for the benefit of each of his three daughters during life; upon the death of a daughter leaving a husband and lawful issue, the execu- tor should stand seized of her third "from and immediately after her death, upon trust for the sole use and benefit of such issue; " in case of the death of a daughter single and unmarried " upon such trust, and for such purpose as she shall or may appoint by her last will ; " in default of such appointment, " for the sole use and benefit of her next of kin." •See this case distinguished in Hume v. Randall, 141 N. Y. 499. 894 POWERS. I. POWER OF DISPOSITION BY WILL. Oonstructioa : The power of appointment related to the remainder in fee ; in each event provided for, the trust in the executors upon the death of the daughter would be purely passive, the remainder vesting in the bene- ficiaries ; the phrase in the clause giving such power of appointment " upon such trust " meant, not a trust to be created by the daughter and so limiting the power of disposition, but related to the trust in the ex- ecutors. The direction as to the daughter who was married at the time of the execution of the will that if she should give to her husband any part of her income from the estate or pay any of his debts, she should forfeit all right and interest in and to such income, did not show any intent to limit the power of appointment. Same will: One of the daughters died unmarried, leaving a will by which she gave all of her real and personal estate, after payment of debts, to her two sisters, who survived her, the survivor of them, and to the heirs and administrators of such survivor. Construction : This was a valid execution of the power of appointment and the title of one-third of the real estate passed under it. The limitation to the survivor did not unduly suspend the power of alienation (1 R S. 724, sec. 24); the estate passed to the two sisters as tenants in. common, each taking a fee, that of the one dying first being defeasible by such death, thereby vesting an absolute estate within or not beyond two lives. The two sisters could convey an absolute fee in possession immedi- ately upon the death of their testatrix. Same will : The two surviving sisters purchased and owned as tenants in conimoD certain other real estate ; one of them thereafter dying left a will by which she gave to her executors a power of sale, to be exercised during the life of her surviving sister with her concurrence, and " on the death of my said sister Maria, or as soon afterward as they may think advis- able * * * and within three years from the proof of the will " the executors were empowered and directed to convert into money the real estate, etc. Maria lived more than three years after the probate of the will. Twelve years after the probate of the will the surviving execu- IV. PURPOSES FOE WHICH POWEES MAY BE OEEAtED. 895 I. POWER OF DISPOSITION BY WILL. tors contracted to sell the real estate to defendant, who refused to com- plete the purchase, claiming, among other thmgs, that the power of sale could only be exercised within the three years. Construction : The power was imperative (1 E. S. 734, sec. 96), and neglect to sell during the time did not destroy the power. A deed tendered by executor afterwards dying, could not, after such death, be delivered or treated as delivered so as to pass title; but the administrator with will annexed could make the conveyance. (2 E. S. 72, sec. 22.) Moti v. Ackftrman, 92 N. Y. 539. The will of P. gave to his daughter S. one fifth of all his real and personal estate. By a codicil he directed that S. should have power by her will "heretofore or hereafter" executed, to dispose of the share de- vised and bequeathed to her, and to that end he directed that such share should be paid over by his executors to the executors or trustees named in her will in case of her death during his lifetime, but in case she survived, then that such share should be paid over to her. S. died before the testator, leaving a will. Construction : While the testator gave a power of appointment, which as a power the donee could not execute during the donors lifetime, yet the further language of the codicil showed the testator's intent to be, in case of the happening of the contingency specified, to devise and bequeath by force of his own will the daughter's one-fifth to such person or persons and in such shares and proportions as she had directed or should direct in the disposition of her own property ; the will of the daughter could be re- ferred to, to define and make certain the persons to whom and the pro- portions in which the one-fifth should pass; the executors of the will of P. were properly required to pay over that share to the executors of the will of S. for the purposes of distribution. Matter of Piffard, 111 N". Y. 410, affi'g 42 Hun, 34. " The Tilden Trust could take only through the power in the nature of that of appointment vested in the trustees ; and the fact that the exer- cise of that power was discretionary and could not be enforced, produced no legal infirmity in the provision relating to that institution, its ability to take, and to the limitation to it dependent upon such appointment' -Chatteris v. Young, 6 Madd. 30; Lancashire v. Lancashire, 1 DeG. & Sm. 888; 3 Phillips, 657; Cole v. Wade, 16 Ves. 37; Perry on Trusts, sec. 508; Hill on Trustees, 490-493. 896 POWERS. I. POWER OF DISPOSITION BY WILL. " So far as the statute relates to the subject of the power of appoint- ment, it provides that where under a power a disposition is directed to be made amongst several designated persons without specification of the share to be allotted to each, all of them shall be entitled in equal pro- portion. (1 R. S. 734, sec. 98 ; Real Prop. L., sec. 138.) But when the terms of the power import that the fund is to be distributed between them in such manner or proportions as the trustee may think proper, he may allot the whole to any one or more of such persons in exclusion of the other. (Id., sec. 99 ; Real Prop. L., sec. 138.) The trust power in such case does not cease to be imperative. (Id., sec. 97 ; Real Prop. L., sec. 137.) And if the trustee having such power shall die leaving it un- executed, its execution shall be decreed in equity for the benefit equally of all the persons sli designated. (Id., sec. 100 ; Real Prop. L., sec. 140.) These provisions of the statute are in that respect substantially declara- tory of the common law.' It was there as it is by our statute, a trust power. And it is not important for the purposes of the question whether the designated persons are vested with the fund subject to the execution of the power, or take by reason of the power given. In the one case there is a gift expressed, and in the other implied which will be executed by decree of the court in default of execution of the power by the donee of it." " No such implication arises where there is a limitation over of the estate or fund to other objects in default of the execution of the power by the donee ; and in that case the objects of the power take nothing as their beneficial interest, or the limitation to them is wholly dependent upon the execution of the power by them.^ And although the power of appointment and selection rests in the discretion of the trustee, it is valid and may be effectually executed by him." * Tilden v. Green, 130 N. Y. 29 ; Opinion, pp. 79-81. Where a power is given to a donee to appoint property to " all, any or either " of several persons named, or to all, any or either of their lawful issue, the word '' or " in the absence of any indication of a con- trary intent, has a discretionary, not a substitutional import. Drake v. Drake, 134 K Y. 220; s. c, 56 Hun, 590, digested p. 1001. • Swift V. Gregson, 1 T. R. 432. ' 1 Perry on Trusts, sec. 350; Walsh v. Wallinger, 2 Russ. & Myl. 78; Lees v. Whitely, L. R., 2 Eq. 143. 'Davidson v. Proctor, 19 L.' J. (N. S. Ch.) 395; 14 Jur. 31; Pearce v. Vincent, 3 Myl. & K. 800; 2 Bing. (N. C.) 338, 3 Keen, 330; Goldring v. Inwood, 8 Giffard, 139. *3 Perry on Trusts, sec. 508; Brown v. Higgs, 8 Ves. 561. IV. PURPOSES FOR WHICH POWERS MAT BE CREATED. 897 I. POWER OF DISPOSITION BY WILL. A general power to dispose of property includes the right to dispose of it by will, unless the grant of the power contains words which ex- pressly, or by fair implication, exclude such a method of disposition. Matter of Gardner, 140 K Y. 122, afl'g 69 Hun, 60. S. died, leaving a will by which he gave his personal estate, after payment of certain bequests, to his daughter, with a provision that if it- did not amount to a sum named his executors should sell enough of his other property to make up that amouni, which legacy he desired her to keep for the benefit of her children. All of his real estate he devised to his son during life, " with the right and privilege of disposing of the same by will or devise to his children, if any he should have." In case the son died without children, the testator gave said real estate to the children of his daughter. The son died without having exercised the power given him to devise the property, and leaving children who were in esse at the time of the execution of the will Action for the construc- tion of the same. Construction : The authority so given to the son was a valid trust power (1 R S. 678, sec. 95) ; such power was imperative (sec. 96) ; equity will regard that as done, which the trustee should have done, and so his children, the beneficiaries of the power, took the land in equal shares. Smith v. Floyd, 140 N. Y. 337. From opinion. — "The eminent counsel for the appellant, however, contends that by the language employed in the creation of the power, the testator has expressly de- clared, or at least clearly indicated, that its execution or non-execution was to be dependent upon the will of the donee. It is insisted that the words ' right ' and ' privilege ' necessarily import a discretion. Such may be their signification generally, but not when used for the purpose of creating a trust power. If the testator had said that he authorized and empowered his son to devise the property to his children, it can not be doubted that an imperative trust power would have been created; but to hold that the power is only discretionary because he gave him the right and privilege to so dispose of it, would be to introduce a distinction which the difEerence in the form of expression does not warrant. The words are not the same, it is true, but their legal effect is. The right to do an act is the possession of the highest authority, and a privilege is a right or power specially conferred. In both cases, full and un restricted authority is given to dispose of the testator's property for the benefit of others, and from the earliest times this has been deemed sufiicient to impress the power with a trust which imposes upon the donee the duty of executing it. There are forcible reasons why testamentary powers should be so construed. They are a part of the final act of the owner in ordering a distribution of his estate, which is not to be effectual until after his death. The testator's wish is his will, and expressions, which, in other instruments, might not be regarded as a demand, are, under such circumstances, obligatory. As was said by the learned judge who wrote in Dominick v. Sayre (3 Sandf . 555), and who was one of the framers of the statute 113 POWEES. I. POWER OF DISPOSITION BY "WILL. under consideration: 'Words of mere authority have the same efficacy in creating a trust as a positive direction. The words, in their ordinary acceptation, may be dis- cretionary, but in a court of equity are mandatory.' In all such cases, the permission imports a power; the power implies a trust; and the trust imposes a duty. It is analo- gous to the rule of construction which has been applied where the legislature has by statute declared that a public officer ' may ' do an act, which, if done, will result in a benefit to an individual or to the public. The authority thus conferred is mandatory and its exercise can be compelled, although the language is in form permissive and not imperative." Where a grantee of a life estate takes also by his deed a power to alien in fee to any person by means of a will, and no person other than the grantee of the power has, by the terms of its creation, any interest in its execution, tbe power is a general beneficial one. In an action by the vendor to enforce specific performance of a con- tract for the purchase and sale of land, plaintiff claimed title under a deed with covenant of warranty, which contained conditions substantially as follows : The grantee shall have an equal interest in the property, and shall control and direct the same after the death of the grantor ; upon the death of one of the grantees the other to have such control during life; neither " shall have the right to convey by deed " without the consent of the grantor, but it may be arranged to be disposed of by will of the survivor, or by mutual will of the grantees, to take effect after the death of both. The habendum clause was to the grantees, "their heirs and assigns forever." The grantor was dead at the date of the deed from the grantees to plaintiff. Construction : Said grantees had power to alien their life estate after the death of the grantor ; and so, their conveyance with warranty conveyed the fee. (1 E. S., 732-733, sees. 81-84.) Hume v. Randall, 141 K Y. 499, rev'g 65 Hun, 437. Distinguishing, Cutting v. Cutting, 86 N. T. 532 ; Crooke v. County of Kings, 97 id. 431 ; Genet v. Hunt, 113 id. 158. See, also, cases post, pp. 955-963. Note 1. — "It is not disputed that under this deed the grantees took a power to alien in fee by means of a will to any alienee whatever, and that no person other than the grantees of this power had. by the terms of its creation, any interest in its execu- tion. This constitutes what is termed a general beneficial power. (1 R. S., 733, sees. 77, 79 ; Cutting v. Cutting, 86 N. Y. 533, 531.)" (503.) Note 2. — "The cases cited by defendant's counsel are Cutting v. Cutting (86 N. Y. 523) ; Crooke v. County of Kings (97 id. 421), and Genet v. Hunt (113 id. 158). These are cases where the legal title was in the trustee and they are the foundation for the claim that, where the tenant for life has no power to alien his life estate, the case does not come within the above statute, although the tenant may have a power to dis- IV. PURPOSES FOB WHICH POWERS MAY BE CREATED. 899 L POWER OF DISPOSITION BY WILL. pose of the fee by will. The argument is founded upon the assumption that the life tenant has no power to alien his life interest. If he have that power the argument is inapplicable. "Upon a careful examination of the language of this deed we are convinced that the grantees after the death of William S. Van Duzee had power to alien their life estate.'' (505.) T., who was a widower, conveyed certain real estate to his children, reserving to himself a right to devise by will a life estate in one-third thereof to "any hereafter-taken wife." The grantor thereafter married, and died without executing the power. The widow was not entitled to any interest in the land ; the reservation at most created a mere power, and so, to be executed or not at the pleasure of the grantor. Towler v. Towler, 142 K Y. 371. Persons were made arbitrators in case of any disagreement between the beneficiaries as to the actual division of the estate, or a sale and division of proceeds, but no power of appointment was conferred. Montignani v. Blade, 145 K Y. Ill, digested pp. 472-73. In 1821, the owner in fee deeded certain lands to trustees, in trust, to pay Hettie H. the rents and profits, and to convey the premises to such persons as she might by will appoint, and in default of such ap- pointment, then to all her lawful issue then living, as tenants in com- mon. Hetty H. thereafter married one Gr., and in 1831 she and her husband brought an action in the court of chancery against their then living children and the trustees, in which it was decreed that the trus- tees might make leases of the premises for the term of twenty-one years, with covenants of renewal for successive terms, not exceeding three, of twenty-one years each, upon such conditions as the trustees should deem to the interest of Mrs. Gr. and her children. Thereupon the trustees, acting upon the authority of the decree, executed to one P., a lease for twenty-one years, in which Mrs. Gr. joined, with cove- nants for three renewals of twenty-one years each. In 1855, Mrs. Gr. died, leaving six children and a will, in which she exercised the power of appointment given by the trust deed, by directing the trustees to convey the premises to a trustee named, in trust, to pay the profits of a sixth part thereof to each of her children, and upon the death of each child to convey a fee to its heir at law. There were two renewals of the lease, the last of which expired in 1894, and the successors of P., the original lessee, demanded a third renewal, being the last provided for by the decree, and an action was brought to obtain an adjudication as to whether, as matter of law, they were entitled to such renewal, as against the estate of Mrs. Gl. Held, on demurrer to a complaint alleg- 900 POWERS. I. POWER OF DISPOSITION BY WILL. ing the above facts, that the trust created by the deed being for the life of Mrs. Cc., terminated with her death, and the powers of the trustees were then at an end, except to convey the trust property as directed by the deed, and that they, therefore, had no power under the deed to re- new leases, or in the leases executed by them to provide for the re- newals of leases after her death ; hut held further, that under the deed the infant children of Mrs. G. were conditional remaindermen; that they took the fee subject to the power of appointment by Mrs. G., and at that time had an interest which they, if adults, had the power to lease; that being infants, the court of chancery could exercise that power for them (2 R. S. 194, sees. 170, 175), which it did by its decree, which decree showed that it was made in an action seeking leave to lease the real estate of infants, of the subject matter of which action the court of chancery had jurisdiction and in which action the proper par- ties were before it ; that upon the execution by Mrs. G., in .her will, of the power of appointment given by the deed, her children were deprived of their interest as remaindermen, but were given another and different interest in the premises, which they took under her will and subject to all the burdens imposed by her, including the leases, in the execution of which she had joined, and which became binding upon her and her estate ; and, consequently, that the tenants were entitled to the third renewal. Gomez v. Gomez, 147 IST. Y. 195 ; s. 0., 81 Hun, 566. By a marriage settlement made in 1841 property was conveyed to a trustee, the wife being empowered to limit, devise, order or appoint, either by her last will and testa- ment in writing or by any other-writing, the property held in trust to such persons as she might see fit. The wife died in 1875, leaving a will executed in 1874. Seld, that though at the time of the execution of the settlement the law did not permit the wife to transfer the legal title to the land by a will, yet, that at the time of her death the law did authorize her so to do, and that a devise thereof by her to her executors vested the legal title in them. Albrecht v. Pell, 11 Hun, 137. The right of one to have lands conveyed to his appointee descends to his heirs. Eubbard v. Gilbert, 35 Hun, 596. A life estate, followed by a devise to " the heirs and assigns " of the life tenant, gives a power of appointment. Goetz v. Ballou, 64 Hun, 490. Testamentary power of appointment — express trust — suspension of the power of alienation. Maitland v. Baldwin, 70 Hun, 267. Will creating a trust estate — a power of appointment may be void without destroy- ing the trust — a beneficiary thereunder may be seized of a vested remainder therein, without merger — a paper referred to in the will, though void as a testamentary dis- position, considered to ascertain the testator's intent. Mctrtin v. Pine, 79 Hun, 436. II. POWER OF DISPOSITION, WHEN ABSOLUTE. Sections one twenty-nine to one thirty-four relate to this subject, all of which, with pertinent decisions and references, will be found under IV. PURPOSES FOR WHICH POWERS MAT BE CREATED. 901 II. POWER OF DISPOSITIOK WHEN ABSOLUTE. ^' V. The estate or interest taken by the grantor of the power," ^osi, p. 955. III. POWER OF SELECTION AND ALLOTMENT. This subject involves the Eeal Prop. L., sees. 137, 138, 140, 141, which are treated under "VI. The execution of powers," to which place reference is made for statutes and decisions bearing on the subject. IV. POWER OF SALE.' 1. Power of trustee to sell and re-invest. Belmont v. O'Brien, 13 N. Y. 394. 2. Legislative power to authorize a sale of the land of infants. Leggett V. Hunter, 19 N. Y. 445. 3. Title vesting subject to the execution of the power. Crittenden v. Fairchild, 41 N. Y. 389; Kinnier v. Rogers, 43 id. 531; Skinner V. Quinn, 43 id. 99 ; Van Vechten v. Keator, 63 id. 53 ; Fisher v. Banta, 66 id. 468 ; Ackerman v. Gorton, 67 id. 63 ; Van Axte v. Fisher, 117 id. 403 ; Dana v. Hurray, 133 id. 604, 613. 4. Right to possession and to rents and profits pending the execution of the power. Lent V. Howard, 89 N. Y. 169 ; Ogsbury v. Ogsbury, 115 id. 290. 5. Power in trust to convert into personalty for convenience in distribution, etc. Kinnier v. Rogers, 43 N. Y. 531. 6. Power of sale carries no right to collect rents and profits. Moncrief v. Ross, 50 N. Y. 431. 7. Power to sell to pay debts. Van Vechten v. Keator, 63 N. Y. 53. 8. Lien of judgment against taker of fee is transferred to proceeds in case of sale under a power. Ackerman v. Gorton, 67 N. Y. 63 ; Sayles v. Best, 140 id. 368. 9. Devise of proceeds of sale of land is a devise of land. Byrnes v. Baer, 86 N. Y. 310. 10. Power of sale covers property acquired after execution of the will. Byrnes v. Baer, 86 N. Y. 310. 11. Power to collect and pay over dividends of stock does not necessarily vest title in grantee of the power, but the title may be vested in another. Onondaga Trust & Deposit Co. v. Price, 87 N. Y. 543. 13. Power of sale revoked by birth of posthumous child. Smith V. Robertson, 89 N. Y. 555. 13. Direction for delay in executing. Robert v. Corning, 89 N. Y. 335; see cases collected at pp. 373-74. 'See Equitable Conversion, p. 917. Execution of Powers, p. 973. Qualified Powers, p. 1009. Real Prop. L., sec. 131. "Power of appointment not preventing ▼esting," ante, p. 307. 902 POWERS. IV. POWER OF SALE. 14. Duration of power of sale. Phillips V. Davies, 93 N. Y. 199 ; Cotton v. Burkelman, 142 id. 160. See, also, post, p. 1012. 15. When trust and power are irreconcilable, trust mu.st yield to power. Crooke v. County of Kings, 97 N. Y. 431. 16. When power of disposition operated on the remainder. Crooke v. County of Kings, 97 N. Y. 421. 17. Power of sale defeated by election of beneficiaries to take the land. Armstrong v. McKelvey, 104 N. Y. 179 ; Mellen v. Mellen, 139 id. 210, and cases gathered in connection therewith ; McDonald v. O'Hara, 144 id. 566. 18. Power of sale does not include power to pledge. Brown v. Farmers' Loan & Trust Co., 117 N. Y. 366. 19. Power of sale subverting lien of judgment. Rose V. Hatch, 125 N. Y. 427. 20. Power of sale to mortgagee. Sanders v. Soutter, 126 N. Y. 193. 31. Power of sale — when presumed to be for the benefit of the estate and not for benefit of executors. Sweeney v. Warren, 127 N. Y. 426 ; Forster v. Winfield, 143 id. 337-8. 23. Devise to sell construed as a power. Matter of Tienken, 131 N. Y. 391. 38. Sale by person as donee of a power, and not aa executrix — duty of donee of power as regards remainderman. Matter of Blauvelt, 131 N. Y. 349. See ante, p. 151. 24. Land under contract of sale included under power of sale. Holly V. Hirsch, 135 N. Y. 590. 25. Influence of fact that a power of sale is necessary in order to give full efEect to the will in determining whether such power has been given. Cahill V. Russell, 140 N. Y. 403. 26. Power of sale for general purposes of administration. Cahill V. RusseU, 140 N. Y. 403 ; Matter of Bolton, 146 id. 357. 27. When power of sale was for benefit of life tenant and remainderman. Cotton V. Burkelman, 142 N. Y. 160. In contemplation of marriage, lands were conveyed to trustees to re- ceive the rents and profits and apply them to the separate use of the wife during life, and the trust deed contained a power to the trustees to sell the lands and reinvest the proceeds and hold them so reinvested to the same use. Construction : The power was valid, and a conveyance by the trustees passed a good title. Such a power is not repugnant to the trust created by the deed ; nor is the conveyance by the trustees in violation of the statute (1 E. S. 730, IV. PURPOSES FOR WHICH POWERS MAY BE CREATED. 903 IV. POWER or SALE. sees. 63, 65), prohibiting the alienation of trust estates. Belmont v. OBrien, 12 N. Y. 394. See, also. Miller v. Wright, 109 N. Y. 194. The legislature, in the exercise of its tutelary power over the persons and property of infants and others under disability, may provide, by public or private acts, for converting real estate, in which they have vested or contingent interests, into personal property or securities, when necessary for their benefit, and may exercise this power as well in re- spect to the rights of persons in esse as to the contingent interests of per- sons yet to be born. Accordingly, an act of the legislature (ch. 442 of 1853) is constitu- tional, authorizing the supreme court, upon the petition of the cestuis que trust, to direct the sale of any part or parts of the trust estate from time to time, as might be judged calculated to promote the interests of the infants, whether yet in being or not ; providing that the proceeds should be applied by the trustees in paying taxes and incumbrances upon the trust property, or in repairing and improving the unsold por- tions or invested for the benefit of those who might become interested under the will ; and all conveyances under the act, if executed by the trustee, should vest in the grantee a fee simple absolute against all per- sons, whether in being or not, who might have or acquire any interest under the will. The trustee's conveyance under the act conveys an indefeasible title against any body who might otherwise at any time claim an interest under the will, irrespective of the power of sale conferred on him by that instrument. Leggett v. Hunter, 19 N. Y. 445. Powers V. Bergen (2 Seld. 358), considered and distinguished. See Brevoort v. Grace, 53 N. Y. 345, 356 ; Smith v. Bowen, 35 id. 83 : Russell v. Russell, 36 id. 581. An insurance company transferred to the plaintiffs, as trustees, a prom- issory note as a security for the liabilities of persons who had lent their credit to the company, with power to sell the note, at public or' private sale, without notice : Held, that this power of sale did not take away the power which the trustees took by the mere transfer of the note to sue upon it in their own names, without joining the cestuis que trust. Nelson v. Eaton, 26 K Y. 410. Gift by will of one-fifth of residue of property, real and personal, to children and grandchildren of husband (grandchildren to take parents' share) and also one-fifth to each of their brothers (naming them) and one-fifth to the children of deceased sister, and power of sale to execu- tors. 904 FOWEBS. IV. POWER OF SALE. Construction : (1) Title vested in devisees subject to execution of the power.' (2) There was no repugnancy between devise and power of sale. Crittenden v, Fairchild, 41 N. Y. 289. This is the general rule, Smith v. Bowen, 35 N. Y. 83; Vernon v. Vernon, 53 id. 351; Chamberlin v. Taylor, 105 id. 185; Harvey v. Brisbin, 143 id. 151; Mellen v. Mellen, 139 id. 310; Clift v. Moses, 116 id. 144; Drake v. Paige, 137 id. 562; Hender- son V. Henderson, 113 id. 1, 14. Devise, after directing payment of debts, and making various be- quests, and special devise of " all the rest, residue and remainder of my estate, both real and personal " to children and authorization to execu- tors " to sell all or any part of my real estate at any time, in their dia. cretion and to execute valid deeds and conveyances of same to pur- chasers." Construction : (1) The authority to executors was a power in trust to convert into personalty for convenience in distribution to avoid delay, etc., and was valid. (2) The power thus given was not repugnant to the previous devise to the children." (3) Such power of sale did not charge the real estate embraced in the residuary clause with payments of debts and bequests. Kinnier v. Bogers, 42 K Y. 531. Grift to executor in trust to pay and apply net income equally to use and support of B., mother, and 0., wife, during B.'s life and also to in- vest a sum and apply income to support of certain legatees, and gift of rest of, and remainder of his estate to C. and authorization to execute, to sell and convey real estate after B.'s death and pay over proceeds to C. Construction: (1) Power to sell was valid as a power in trust and not repugnant to residuary devise. ° Skinner v. Quinn, 43 N. Y. 99. M., by his will, devised the net income arising from his real estate to his mother during her life, and upon her death directed his executor to sell all his real estate with the exception of one piece, and out of the proceeds to pay his sister J. $20,000 and the residue to his sister A. 'Downing v. Marshall^ 33 N. Y. 379, 380; 1 R. S. 739, sec. 56; 4 Kent, 321, 333, 8th ed. 338, 339. »See Reynolds v. Reynolds, 16 N. Y. 361; Tracy v. Tracy, 15 Barb. 503; Brudenell V. Boughton, 3 Atkins, 368. »1 R. S. 738, sec. 55; 3 N. Y. 297; 43 id. 531. IV. PURPOSES FOR WHICH POWERS MAY BE CREATKD. 905 IV. POWER OF SALE. The mother died during the lifetime of the testator. The testator died, leaving plaintiff (his brother) and the two sisters his only heirs. After his death the executor received the rents of the real estate. Plaintiff claimed one-third thereof, and asked for an accounting. The will gave the executor no title to the real estate, or right to receive the rents and profits ; but as the sale was directed to be made immediately after the death of the mother, and the direction was . absolute, by this power the land was equitably converted into money, and would be so regarded, and the entire proceeds belongsd to the sisters. Moncrief v. Ross, 60 N. Y. 481. Germond v. Jones (3 Hill, 569), and Campbell v. Johnson (1 Sandf . Ch. 148), dis- tinguished. (1) Eeal estate was charged with payment of debts and power was given to executors to sell sufficient for that purpose. (2) There was a bequest of personalty to B. (3) Devise of all real estate to executors in trust for benefit of B. and her husband for their lives, and remainder over to their children. Construction : The devise was subject to power in trust by first clause vested in ex- ecutors. So much of land as was .needed to pay debts for which resort could be had to executors was converted into personalty ; but real estate could not be sold to pay mortgage thereon. Yan Vechten v. Keator, 63 N. Y. 52. Citing on question of mortgages, 1 R. 8. 749, sec. 4; Johnson v. Corbett, 11 Paige, 365; House v. House, 10 id. 158. Note. — It is only when different clauses of a will are irreconcilable upon any rea- sonable interpretation, that the latest clause is preferred. Van Nostrand v. Moore, 53 N. Y. 13. Land passed to heirs subject to power of sale. Fisher v. Banta, 66 N. Y. 468, digested p. 928. Estate vested subject to execution of a power. Lien of a judgment against the taker of a fee was subject to power of sale and transferred to the proceeds in case of sale. Ackerman v. Gorton, 67 N. Y. 63, di- gested p. 301. A devise of the proceeds of land directed to be sold by the executors is a devise of land within the statute, although the naked title remains in the heirs until sale. The will of J., after a gift to his wife of his household furniture and of the use of his dwelling-house during her life, directed his executors 114 906 POWERS. IV. POWER OF SALE. to invest " all the rest, residue and remainder " of his estate in bonds and mortgages ; and after direction as to the disposition of the income therefrom during the lives of his wife and a daughter, upon the death of both, gave the principal to the children of the daughter, etc. The tes- tator acquired certain lands after the execution of the will. Construction : The direction applied to all the real estate of the testator ; it fairly implied a power of sale for conversion in the executors ; and said lands passed under the will. Byrnes v. Baer, 86 N. Y. 210. Power given by will to executors to collect and pay over dividends on the stock of an incorporated company, does not necessarily vest in them title to the stock ; but the title may be lodged in another person. Codicil, in lieu of a trust created by will for benefit of L., grand- daughter, gave her $2,000 of the stock of an incorporated company " to draw the income arising therefrom during her lifetime, and at her death to dispose of the same as she shall see fit." The executors were directed to pay over to her the dividends paid on the stock. The executors set apart certificates of the stock to the amount specified, which one of them afterwards delivered and caused to be transferred on the books of the company to defendant in payment of an individual debt. The action was brought by a receiver appointed pendente lite in action to remove said executor for conversion of stock. Construction : The action was not maintainable, at least without making L. a party. The codicil gave directly to L. the title to the stock, subject to the power in the executors to collect and pay over the dividends. The executors had no power of disposition without consent of L.; her title could not be extinguished by a proceeding to which she was not a party. Onondaga Trust & Deposit Co. v. Price, 87 N. Y. 542. Note 1. Cases relating to real estate have no application. (547.) Note 3. When trast could be executed without such an estate it has been held to be a mere power of management and not to give the legal title to the trustee. (547.) Post V. Hover, 33 N. Y. 593. Where a testator, whose will authorized his executor to sell all his real and personal estate, and dispose of the proceeds, after the making thereof, had a child born, and thereafter died leaving said child his only heir at law, and " unprovided for by any settlement, and neither provided for nor in any way mentioned in his will," held, that under IV. PURPOSES FOR WHICH POWERS MAY BE CREATED. 907 TV. POWER OF SALE. the statute (2 E. S. 65, sec. 49), the whole estate descended to the child the same as if the father had died intestate ; that he did not take under the will or subject to any of its provisions ; and that where the executor sold the real estate, the remedy of the child was not confined to a pursuit of proceeds of sale, but that she could maintain ejectment to recover the same. Where, however, it appeared that the real estate was at the time of the testator's death subject to a mortgage which the grantee paid, held, that the judgment should be without prejudice to his right to a lien for the amount so paid, or to be subrogated to the rights of the mortgage. Smith V. Bobertson, 89 N. Y. 555. Statute against perpetuities is not violated, when the directions for division or conversion of property do not involve delay. Robert v. Corning, 89 N. Y. 225, digested p. 437. Where a will contains no specific devise of the testator's real estate, but a bare power of sale is given to the executors and the title descends to the heirs of the testator, subject to the execution of the power, the right of possession follows the title and the heirs are entitled at law to the intermediate rents and profits. If, however, the power of sale operates as an immediate conversion of the land into personalty, accompanied with a gift of the proceeds, iq equity the intermediate rents and profits go with and are deemed to be a part of the converted fund ; the heir may be compelled to account therefor to the executor, and the latter to the beneficiary, for so much thereof as is received by him, as well as for the proceeds of sales. Lent V. Howard, 89 K Y. 169. See Moncrief v. Ross, 50 N. Y. 431 ; Harper v. Chatham Nat. Bank, 17 Misc. 331 ; Campbell v. Johnson, 1 Sandf. Ch. 148 ; Clift v. Moses, 116 N. Y. 144. M., at the time of making her will, and of her death, owned a large amount of real estate but only a small amount of personal property. By her will, after providing for the payment of debts, she first gave her estate, real and personal, to her executors in trust, to rent, etc., and apply the rents, income, etc., to the use of her husband during his life. Then followed ten clauses purporting to create separate and inde- pendent trusts ; also numerous legacies, all of which would substantially fail in the absence of a trust estate, or power in trust vested in the executors, by force of which the real estate could be sold and converted into money. Certain real estate was also specifically devised, and the executors were directed to pay off incumbrances thereon, which, in the absence of such power, could not be done. The clause appointing executors contained the following: "and during the lifetime of my 508 POWERS. IV. POWER OF SALE. said husband and my said executors, and such and whichever of them as shall act, are authorized and empowered, by and with the consent of my said husband, to sell and dispose of any part of my estate, real and personal, not specifically bequeathed." Action for a construction of the will. Construction : (1) Said clause was to be construed as conferring upon her execu- tors a power of sale which, during the life of her husband, was to be exercised only with his consent, but thereafter continuing to exist ; (2) therefore, the executors had power to sell after the death of the husband, and convert into money so much of the real estate as was not specifically devised. Phillips v. Davies, 92 N. Y. 199. When trust and power are irreconcilable, trust must yield to the power. Trust for benefit of daughter for her life, and declaration that devise was on the condition " subject to the power and authority of daughter to dispose of the estate, both real and personal, by grant or devise." The power operated on the remainder, and trust related to life €state and both were valid. Groohe v. County of Kings, 97 IS". Y. 421, digested p. 444 The will of S. directed his executors to sell his real and personal es- tate, and, after paying his debts, funeral expenses and certain legacies, to divide the balance among the defendants herein. The executor sold and conveyed the real estate to B. Defendants thereupon brought an action against the executors and B. to set aside the conveyance. The judgment therein granted the relief sought, and also decided that the land descended to the devisees, subject to the execution of the power, as the time for the execution thereof had expired, and that they were entitled to the possession as rightful owners, freed from the trusts. la an action under the Code of Civil Procedure (sec. 1843), to charge de- fendants as such devisees with a debt of the testator. Held, it was to be assumed that the provision, above referred to, was inserted in said judgment at the request and by the procurement of the defendants and when they took possession under the judgment this established their • election to avoid a sale and take their legacies in the land itself instead of the proceeds ; that they had the right to do this, no other rights in- tervening, or being prejudiced ; that it might be, while this reconversion changed the legatees to devisees, it did not divest the heirs at law of their legal title, yet such legal title was purely formal, and the effect at defendants' election was, at least, to vest in them the equitable owner- IV. PURPOSES FOB WHICH POWERS MAY BE CREATED. 909 IV. POWER OF SALE. ship and the entire beneficial interest, and therefore the action was maintainable. Armstrong v. McKelvey^ 104 N. Y. 179, afi'g 39 Hun, 213. The will of O. contained a direction to the executrix to sell the testa- tor's real estate within five years of his decease for the purpose of pay- ing debts and legacies. By a subsequent clause she was authorized to sell in lots or parcels, or altogether, in her discretion. The rents and profits of the land were given to her in her individual right so long as it remained unsold. There was no equitable conversion by the will of the land into per- sonalty at the death, as plaintiff was entitled to possession and the rents and profits until a sale. Ogsbury v. Ogshury, 115 N. Y. 290. Power of sale — when it does not include power to pledge. Brown v. Farmers' Loan and Trust Co., 117 N. Y. 266. See, Power to mortgage, lease or pledge, post, p. 951. Estate was given subject to power of sale. Van Axte v. Fisher, 117 N. Y. 401. " Where the power, under the express provision of the statute, is im- perative and its execution will be compelled by the court, it operates to suspend the vesting of the fee until the power is executed or the es- tate is terminated. (Delafield v. Shipman, 103 N. Y. 463 ; Delaney v. McCormack, 88 id. 174.)" Dana v. Murray, 122 id. 604, 613. A power of sale to pay debts subverted the lien of judgment against donee of power as an individual, although the motive for the sale was wrongful. Hose v. Hatch, 125 N. Y. 427. Under, and by an instrument which is in legal effect a mortgage, a power may be vested in the mortgagee to sell and convey an absolute title to the mortgaged property. Sanders v. Soutter, 126 N. Y. 193. When a power is conferred upon executors by virtue of the office, and not upon them as individuals, in the absence of evidence that it was intended to be beneficial to them, the presumption is that it was given for the purpose of being executed in the interest of the estate, and not for their own benefit. . Sweeney v. Warren, 127 N". Y. 426. Devise in terms to executors or trustees to sell or mortgage, may be construed as a power, and the title descends to heirs and devisees. Stein- hardt v. Cunningham, 130 N". Y. 292. Power of sale was discretionary, if given solely for convenience of division, and did not enlarge life estates in trustees. Matter of Tienken, 131 K Y. 891. The will of B. gave to his widow the use of all his estate during widowhood, and authorized her to sell any of the real estate as to her 910 POWERS. IV. POWER OF SALE. should seem just. She and the testator's two daughters were made ex- ecutrices. She and one of the daughters qualified. The widow sold several pieces of real estate, and for loss in reinvesting the proceeds, which were received by her, she and the other executrix were charged on settlement of their accounts as executrices. Construction : Error; while the widow took but a life estate and the proceeds of the sales were to be used by her as life tenant only, the sales were made by her, not as executrix, but as donee of the power of sale ; she was entitled to sell without notice to her coexecutrix, and to receive the pro- ceeds, and her coexecutrix was not guilty of negligence in permitting her to so receive them. Croft v. Williams, 88 N. Y. 384 ; Paulding V. Sharkey, id. 432 ; Bruen v. Grillet, 115 id. 10. The widow could not be held liable for the losses, in the proceeding for an accounting. It seems, the remaindermen would have had the right, before the pur- chase money was paid over, to ask a court of equity to make some con- dition in the way of securing the safety of the fund before the life ten- ant should be permitted to enjoy its possession, if there were doubts as to her solvency. It seems, also, the remaindermen may take proceedings to compel security to be given by the life tenant for the safety of the fund and its forthcoming at the proper time. Matter of Blauvelt, 131 N. Y. 249, rev'g 60 Hun, 394. Power of sale included land under contract of sale made by the tes- tator. Holly V. Hirsch, 135 K Y. 590, digested p. 887. It seems, that when by will, land is directed to be sold by the execu- tor and the proceeds divided among designated beneficiaries, the par- ties beneficially interested, provided they are competent and of full age, and the gift is immediate and not in trust, may, before a sale has been made, elect to take the land, and when they have so elected and the election has been made known, the power of the executor to sell ceases, and he may not thereafter proceed to execute it. It seems, also, in such a case an action will lie in behalf of the par- ties interested to enjoin the executor from a threatened execution of the power. (See Butler v. Johnson, 111 N. Y. 204.) An election, however, by one of the parties, without the concurrence of the others, will not defeat the power. Mellen v. Mellen, 139 N. Y. 210, aff'g 60 Hun, 151. See, Hetzel v. Barber, 69 N. Y. 1 ; Prentice v. Janssen, 79 id. 478, digested p. 929. IV. PURPOSES FOR WHICH POWERS MAY BE CREATED 911 IV. POWER OF SALE. McDonald v. O'Hara, 144 id. 566; Savage v. Sherman, 24 Hun, 307; 87 N. T. 277; Armstrong v. McKelvey, 104 id. 179; Morse v. Morse, 85 id. 53; Underwood v. Curtis, 127 id. 528. From opinion. — "The doctrine referred to has been considered and applied by this court in several cases. (Hetzel v. Barber, 69 N. Y. 1 ; Prentice v. Janssen, 79 id. 478.) Jarman says (1 Jar. 599), that the expressions or acts declaratory of an intention to make an election, though it is said they may be slight, ' must be unequivocal,' and in Prentice v. Jaussen the rule stated in Leigh and Dalzell on Equitable Conversions, ' that a slight expression of intention will be considered sufficient,' is quoted with ap- proval. » « * » » ' 'But we are of opinion that the complaint is insufficient to sustain this cause of action for the reason that it is neither directly alleged that the plaintifE and the other persons interested and deriving title as original devisees of Abner Mellen, or under them, had elected to take the land in its unconverted state, freed from the power of sale, nor are any facts averred from which an election can be legally inferred. The allega- tion that the devisees took possession of and occupied and controlled the land devised as owners, and appropriated the rents and profits, is not inconsistent with an out- standing power of sale in the executor. The devisees hud the legal title to the land as tenants in common, and as such had the right to the possession and to the rents and profits. They may, nevertheless, have desired that the power of sale should con- tinue in the executor, for convenience in passing the title upon a sale, or for other reasons. The commencement of the partition action by the plaintiff naturally signi- fied her election, and if all the other parties interested had joined in asking a partition this would, I think, have amounted to an election that the power of sale in the execu- tor should not be exercised. It would show an intention by all the parties interested to sever the tenancy in common and take their respective shares of the land in sever- alty. But the other parties interested resisted the partition, and an election by one of the parties, without the concurrence of the others, would not defeat the power. A long lapse of time, during which a power of sale remained unexecuted, where there was no obstacle to its execution, might alone, or with other circumstances, affect the presumption of an election. In Kirkman v. Miles (13 Ves. 338), Sir William Grant was of opinion that two years was too short a time to presume an election (see, also. Brown v. Brown, 33 Beav. 399), and Jarman says (vol. 1, p. 600): ' But possession for two or three years by tenants in common (without more), has been held insufficient.' In the. present case less than three years had elapsed between the death of the testator and the advertisement of sale by the executor. The renewal of the lease of some of the property, in March, 1890, by the parties owning the land, for the period of a year, would be a significant and probably a decisive fact showing an election, if the act was inconsistent with the continued existence of the power of sale. Great weight was given by Lord Hardwicke in Crabtree v. Bramble (3 Atk. 680), to the circumstance that the parties beneficially entitled, under a will had executed a lease of the premises for a term, upon the point of an election. But in that case the trustee for sale took under the English law title to the estate as trustee, and the lease was in hostility to his right, and the lessors had bound themselves to make good the lease. The act was inconsist- ent with the continuation of the power of sale, and was significant of an intention on the part of the lessors to take the land and not the proceeds. The lease, in the present case, bound the land, and was made by the legal owners, and was not in hostility to the power of sale. A purchaser under the power would take subject to the lease. "There is no repugnancy between a devise in fee and a subsequent power of sale given to the executor for the benefit of the devisees. This is a common incident of 912 POWERS. IV. POWER OF SALE. testamentary dispositions. The title to the lands vested in the -widow and children of Abner Mellen under the devise, and was a fee, subject to the power of sale given to the executor. In case of a sale under the power, the titlo of the devisees in the land would be divested and an interest in the proceeds substituted. Crittenden v. Fair- child, 41 N. Y. 389." (319-320.) Where a power to sell real estate is given to exeoiKtors after the expira- tion of a life estate, or when the youngest child becomes of age, with a direction to divide the proceeds equally among the testator's legal heirs, the heirs take the fee of the remainder subject to the execution of the power of sale ; and upon the recovery of a judgment against one of them before the time arrives when the power can be executed, the judg- ment creditor acquires a lien upon the heir's interest in tbe land, which follows and attaches to his interest in the proceeds, when a sale is had under the power. Sayles v. Best, 140 N. Y. 368. See Ackerman v. Gorton, 67 N. T. 63. Where words are used in a will fairly expressive of an intent that the executors shall sell real estate, but the import thereof is uncertain or equivocal, in determining whether a power of sale was intended, the fact that a sale is necessary in order to give full effect to the will may properly be permitted to have great weight in the construction of the instrument. Formal words are not necessary to create a power, and if it appears by a will that a power of sale was intended, a sale will be supported, however obscurely the intention may be expressed. B., by the first clause of her will, gave to a sister a legacy, and in the next clause gave to her the use of a portion of certain premises, "until the sale and conveyance of said premises " by the executor as therein- after provided. The will then gave various legacies, including one to the only heir at law of the testatrix, an infant grandson. There was no residuary clause. An executor was appointed, but no power of sale was conferred upon him in express terms. In a codicil executed after the death of the sister, the testatrix revoked the legacy to her, but did not change the second clause. By other codicils she revoked various lega- cies, and the last contained a clause giving the residue of her estate, real and personal, to her grandson. The legacies not revoked amounted to $13,500. The net personal estate of the testatrix at her death did not. exceed $8,000. The said premises were valued at $12,000 and the tes- tatrix owned an equitable interest in other real estate worth $2,000. Ac- tion for the construction of the will. Construction : A power to sell said premises was intended to be and was given to the executor, in order to convert the same into personalty and render it IV. PURPOSES FOR WHICH POWERS MAY BE CREATED. 913 IV. POWER OF SALE. available for the general purposes of administration.' Cahill v. Russell, 140 K Y. 402. Before a gift to executors eo nomine can be held to vest in them indi- vidually, the intention that it should so vest must be plainly manifest The will of F. empowered his executors, two in number, to sell any of the real estate of which he died seized, and out of the proceeds "which they are to receive as trustees and in trust to pay any debts; " the net residue after payment of all debts he gave to the " executors and the survivor of them as joint tenants." Then followed this clause : " I have entire confidence that they will make such disposition of such residue as under the circumstances, were I alive and to be consulted, they know would meet my approval." But one of the executors qualified ; they both, as individuals, contracted to sell to defendant a portion of the lands of which the testator died seized. Held, that plaintiffs did not take title to the real estate as individuals, and as such could not convey title. Forster v. Winfield, 142 N. Y. 327-8. The will of C. gave to his wife all of his property during life, charg- ing upon it the support of his mother. The wife was made sole execu- trix with full power to sell and dispose of any part of the real estate in her discretion and to invest the proceeds as she might deem best for the benefit of M., their adopted daughter, to whom the remainder in fee was given. M. died after the death of the testator, leaving a son surviving. Thereafter the executrix contracted to sell and convey a portion of the real estate of which C. died seized. In an action to compel specific per- formance of the contract, held, that the power of sale was not given for the benefit of the remaindermen simply, but its chief purpose was the benefit and safety of the life tenant ; and so, that the power was not extinguished by the death of M. and the deed of the executrix was suf- ficient to carry the fee. Cotton v. Burkelman, 142 N. Y. 160. Sweeney v. Warren, 137 N. Y. 434, distinguished. While, where a will contains an imperative direction to the executors to sell the real estate and divide the proceeds, the persons who are ex- clusively entitled to the fund arising from the sale may, if they so elect prior to a sale, take the real estate in its unconverted form,' there must be a concurrence of all the beneficiaries in the election in order to take the real estate out of the operation of the power of sale. I Erwin v. Loper, 43 N. Y. 531; Matter of Hood, 85 id. 561; Glacius v. Fogel, 88 id. 434; Matter of Powers, 134 id. 361; In re Gantert, 136 id. 109. '' Story's Eq. sec. 793; Hetzel v. Barber, 69 N. Y. 1-11; Prentice v. Janssen, 79 id. 478-485; Mellen v. Mellen, 139 id. 210-330. 115 914 POWERS. IV. POWER OF SALE. The will of J. directed his executors to sell his residuary real estate, divide the same in seven equal parts and pay one part to each of the testator s six sisters and the other to the children of a deceased brother. The testator died seized of certain real estate which the sole surviving execu- tor advertised for sale. In an action brought by one of the sisters to restrain the sale, it appeared that all of the beneficiaries, except one of the sisters and one of the children of the deceased brother, who was a minor, joined with the plaintiff in the request not to sell, and that an injunction restraining the sale issue. Construction : The direction to sell contained in the will was imperative and operated to convert the realty into personalty ; ' assuming the request amounted to an election to take the land as such, the election was incomplete be- cause not made by all of the beneficiaries ; and so, an application to continue a temporary injunction was properly denied. McDonald v. O'Eara, 144 N. Y. 566. See Mellen v. Mellen, 139 N. Y. 310, digested ante. By the will of B. his executors were empowered to sell any and all of his real estate when in their judgment they might deem it for the best interest of the estate. The executors sold the real estate ; they paid, in discharge of the testator's debts, a sum in excess of that realized from the personalty. Proceedings for the final accounting by the executors. Construction : Before distributing the proceeds of the sale among the residuary devi- sees, they were entitled to reimburse themselves therefrom for the sum so paid in excess of personalty, and were entitled to a credit for that sum, and this, without regard to the question as to whether the power of sale was given for the purpose of paying debts." Matter of Bolton, 146 K Y. 257. The testator authorized his executors to sell his. real estate whenever they aad liia ■wife (his executrix), unanimously thought that such sale would be advantageous to her estate. After the decease of his wife, his surviving executors were authorized to sell the real property. House v. Raymond, 3 Hun, 44. Power of sale contained in will, not to be exercised during continuance of two lives in being — when valid — power in trust — when created. Blanchard v. Blanchard, 4 Hun, 287, aif'd 70 N. Y. 615. ' Delafleld v. Barlow, 107 N. Y. 535. • Erwin v. Loper, 48 N. Y. 521; Hood v. Hood, 85 id. 561; Glacius v. Fogel, 88 id. 434; Matter of Powers, 134 id. 861; Matter of Gantert, 186 id. 109; Cahill v. Russell, 140 id. 403. IV. VURPOSKS FOK WHICU POWKKS MAV Bii GLlHA'l'KB. 915 IV. POWKR OF SALE. Power of sale— title to real estate subject to, is in heirs until sale. People v. Hcoit, 8 Hun, 566. Title to real estate vested in devisees subject to power of sale— right of the admin- istrator with the will annexed to exercise a power of sale. Bingham v. Jones, 35 Hun, 6. Power of sale — dedication of land to use of public street by an executor. Bloom- field V. Ketcham, 35 Hun, 318, rev"d 95 N. Y. 657. When the executors must sell the real estate — how far the court will control the discretion vested in them by the testator — right of the owner of the life interest to compel the trustee to account. Haiicox v. Wall, 38 Hun, 314. Right of an executrix to sell under a general beneficial power. Leonmd v. Ameri- can Bap. Home Mis. Society, 35 Hun, 390. When a power to sell real estate will be implied — restrictions on the time of sale. Stewart y. Hamilton, 38 Hun, 19. Construction of a power to dispose of property by will — when it will be deemed executed by the use of general language in the will of the devisee of the power. Thomas v. Snyder, 43 Hun, 14. When no trust is created— when lands descend to the testator's heirs subject to a power of sale — when an action for partition may be maintained, although the power of sale is given to the executors of the testator. Pwrdy v. Wright, 44 Hun, 339. Plaintiffs, claiming as remaindermen under the will of one Legem, to recover for waste by a tenant for life. The will, after directing the payment of debts and speci- fying certain bequests and devises, among which was an estate for life in certain real estate, gave the residue of his estate, real and personal, to his " heirs, to be equally divided between them, share and share alike, including my wife,'' and by a sub- sequent clause gave all his real and personal estate, of whatever nature or kind, to his executors In trust for the payment of the debts and legacies, with power to sell and dispose of the same at public or private sale, at such time or times, and upon such terms and in such manner as to them should seem meet. A motion to dismiss the complaint was granted upon the ground that the plaintiffs had not shown either title or possession of the premises and could not maintain the action. Construction : (1) Error. (2) The trust to pay debts and legacies vested no estate in the trus- tees, as they were not authorized to receive the rents a nd profits, nor entitled to the possession of the real estate. (3) Until the execution of the power, the fee was in the heirs subject to the estate of the tenant for life. It seems, that if this were a case in equity the judgment appealed from might have been sustained upon the doctrine of equitable conversion, as the gift of the use of the land to tenant for life was accompanied by an imperative direction that upon his death such land should be sold by the executors, or the survivor of them, and be divided equally among the heirs. Bouton v. Thomas, 46 Hun, 6. Power of sale — construction of the provisions of a will conferring a power of sale upon the executors. Knapp v, Knapp, 46 Hun, 190. Power of sale — where no donee of the power is designated in the will, the power is vested in the executor. Officer v. Board of Home Missions, 47 Hun, 353. Life estate to a widow, one of the executors, with power to direct a sale of the property, does not give purchaser, to whom she has executed a deed of a part desig- nated, power to compel a deed from the other executor : she can not fix the price. Steves V. Weauer, 49 Hun, 267. 916 POWEKS. IV. POWER OF SALE. Will— construction of, as to a power being given by implication to a trustee to sell real estate included in the residue of the estate devised in trust. Bijur v. Bijur, 49 Hun, 235. Powers of sale to executors— what facts appearing of record show that a sale there- under was not made in good faith and is invalid. MePheraon v. Smith, 49 Hun, 254. Power of sale in an executrix — is not a bar to an action for partition by a party succeeding to an interest in the land covered by the power. Buffy v. Duffy, 50 Hun, 266, aff'd 130 N. Y. 654. Power of sale does not give title. Matter of McCaffrey, 50 Hun, 371. What provisions confer, by implication, a power )of sale upon the executor. Van Winkle v. Fowler, 53 Hun, 855. Power of sale, when it survives the death of the life tenant. Millspaugh v. Van Zandt, 55 Hun, 468. Power of sale of land — to be exercised as " deemed expedient and for the best interest of all my legatees " — not properly exercised where there is sufficient personal pioperty to pay all the legacies — title required thereunder. Honey v. CMsholm, 56 Hun, 328. Will — widow's support — power of sale given to executors for that purpose — failure to exercise it— equitable relief after the widow's death. Allport v. Jerrett, 61 Hun, 447. Will — implied power of sale — when it passes to an administrator with the will annexed — when the power survives — equitable conversion. Wood v. Nesbitt, 62 Hun, 445. Will— disposition of real property situated in a foreign state — equitable conversion — discretionary power to sell given to executors — ^a failure to reinvest the proceeds — lex loci rei sites — money representing sales of land in foreign states. Butler v. Oreen, 65 Hun, 99. Sale of a decedent's real estate on a creditor's application— express charge of debts upon realty — effect of a discretionary power of sale to executors. Matter of Heroy, 67 Hun, 13. Will — suspension of the power of alienation during minority — power of sale to executors, one of whom is a tenant in common of testator's real estate. Stehlin v. aieldin, 67 Hun, 110. Deed by the grantee of a power — 1 R. S. 787, sec. 124 — testamentary power of sale — not frustrated by a deed purporting to be under an unauthorized sale — will proved in another state — power of sale to an executor in his personal capacity — power of sale — in case of a will proved in another state. Pollock v. Hooley, 67 Hun, 370. Incumbrance imposed by a life tenant on land held by her subject to a testamentary power of sale given to her as executrix — removed by a sale under the power. Haas v. Kuhn, 67 Hun, 435. The right of testamentary trustees of residuary real estate, charged with legacies, to enjoin an executrix and legatee from leasing the same and collecting rents. Stevens V. Stevens, 69 Hun, 332. Power of sale after a definite term — not a suspension of the power of alienation. BueJianan v. Tebbetts, 69 Hun, 81. Vested remainder — acceleration of the execution of a power of sale — conversion of realty into personalty. Matter of Accounts of Collins, 70 Hun, 273, aff'd 144 N. Y. 522. Power of sale— action for partition between devisees — sale of the land by executors —payment of the proceeds into court. Myers v. Bolton, 70 Hun, 367. Action for partition — construction of a will — lands devised in fee and power of sale IV. PURPOSES FOR WHICH POWERS MAY BE CREATED. 917 IV. POWER OF SALE. thereof given to executors — equitable conversion — reconversion into realty — power of sale not a bar to the action for partition — qumre, whether repugnant to the devise — assertion that a sale is against interest — legal right to a partition — valid exercise of a power of sale. Mellen v. Banning, 72 Hun, 176. Action to determine the validity of a probated will — injunction pendente lite, re- straining the executors from selling land pending action by him to have will declared void under Code, 2653a. Hawke v. Rawke, 74 Hun, 370. Power of sale — when it does not cover property devised specifically and absolutely. Landon v. Walmuth, 76 Hun, 271. Scope of a power of sale of realty contained in a will — extended to the payment of debts and legacies. Matter of Bolton, 88 Hun, 259, aff'd 146 N. Y. 257. Power of sale contained in a will — when it is immaterial that a trust created by the will is invalid. McOready v. Met. Life Ins. Go., 83 Hun, 526, afC'd 148 N. Y. 761. Direction in a trust deed to convey — title taken by the trustees — when the remain- der vests — power of sale defeated by a conveyance by the beneficiary. Boberts v. Gary, 84 Hun, 828. Reasonable time to make a sale of real estate directed by a will. Matter of Travis, 85 Hun, 420. Power of sale in a will — when it ends — right of a testator to limit the exercise of power granted by him. Eerriott v. Prime, 87 Hun, 95. Power of a beneficiary under a will when substituted as trustee under 1 R. S. 780, sec. 68 — power of sale. Mulry v. Mulry, 89 Hun, 531. A provision giving discretion to the executor to dispose of testator's estate with power to sell or hold as long as he deemed fit created a power in trust and not a trust. Matter of Spears, 89 Hun, 49. Unlimited power to sell real estate — executors may exercise it for purposes of dis- tribution. Lindo V. Murray, 91 Hun, 335. A part of a will gave an estate to P. and by another part thereof, unless P. gave up certain vices, made such provision void, provided that P.'s estate be held in trust for him during three years and unless he before then reformed that the trustees give it to certain others instead. The latter part of the will as to the power in trust was void and P. took the estate given to him by the former part. Moore v. Moore, 47 Barb. 257, digested p. Power to sell lands and distribute the proceeds among those to whom the land is devised is not the purpose for which an express trust may be created. The sale is for the benefit of devisees and not of legatees. Lange v. Bophe, 5 Sandf. 863. 1. EQUITABLE CONVERSION. 1. On what principle the doctrine rests. Manice v. Manice, 43 N. Y. 305. 2. Doctrine will not be resorted to, where the interests are the same, whether the property is regarded as land or personalty. Matter of Tienken, 181 N. Y. 391. 3. When executor is required to account for rents and profits. Stagg V. Jackson, 1 N. Y. 206 ; Hood v. Hood, 85 id. 561 ; Lent v. Howard, 89 id. 169. 4. Accounting by executor in case of equitable conversion. Stagg V. Jackson, 1 N. Y. 206 ; Hood v. Hood, 85 id. 561 ; Matter of McComb, 117 id. 378 ; Haberman v. Baker, 128 id. 2o3. 918 POWERS. IV. POWER OF SALE. 1. EQUITABLE CONVEKSION. 5. Conversion with reference to aliens. Meakings v. Cromwell, 5 N. Y. 136 ; Parker v. Linden, 113 id. 28 ; Austice v. Brown, 6 Paige, 448. 6. Character of proceeds of sale of lands of infants sold under order of the court. Forman v. Marsh, 11 N. Y. 544; Wells v. Seeley, 47 Huu, lOy. 7. Doctrine of equitable conversion as affecting rights of infant to will. Horton v. McCoy, 47 N. Y. 31. 8. When purpose fails, land retains its original character. Gourley v. Campbell, 66 N. Y. 169 ; Read v. Williams, 135 id. 560 ; Sweeney v. Warren, 127 id. 426. 9. Lien of judgment against land transferred to proceeds of lale. Ackerman v. Gorton, 67 N. Y. 63. 10. Lands under contract of sale — when proceeds go to representatives. Denham v. Cornell, 67 N. Y. 556. 11. Devise of proceeds of lands is a devise of lands. Byrnes v. Baer, 86 N. Y. 210. 13. Equitable conver.sion does not change rule applicable to the transfer of real estate. Wilder v. Ranney, 95 N. Y. 7, 13. 18. Property retains its original character, except for the purposes for which con- version is directed and required. Henderson v. Henderson, 118 N. Y. 1 ; Parker v. Linden, id. 38 ; Wood v. Cone, 7 Paige, 471. 14. When proceeds of sale retain nature of realt)'. Henderson v. Henderson, 113 N. Y. 1 ; Ford v. Livingston, 140 id. 162 ; Smith v. Kearney, 2 Barb. Ch. 533. 15. Invalidity of gift of lands attaches to proceeds. Haynes v. Sherman, 117 N. Y. 433. 16. Effect of failure to exercise power of sale. Matter of Bingham, 137 N. Y. 296 ; Sweeney v. Warren, id. 426. 17. Character of proceeds of sale of interest in land belonging to a lunatic in judi cial proceeding. Ford V. Livingston, 140 N. Y. 162. 18. When land will be distributed as such. Matter of Mahan, 32 Hun, 73 ; aff'd 98 N. Y. 373. 19. Partial conversion. Matter of Dodge, 40 Hun, 443. 20. Rights of parties not altered by conversion. People V. Am. Loan & Trust Co., 2 App. Div. 143. 21. Doctrine of conversion — its effect on future limitations. Burrill v. Shell, 2 Barb. 457 ; DeBarante v. Gott, 6 id. 492. 22. Substitution of proceeds fur land. Smith V. Post, 2 Edw. Ch 523. 23. Gift of land or price of land to devisee. Marsh v. Wheeler, 2 Edw. Ch. 156. IV. PURPOSES FOE WHICH POWERS MAY BE CHEATED. 919 IV. POWER OF SALE. 1. EQUITABLE CONVBKSION. 24. Power of sale limited so as not to work equitable conversion Allen V. DeWilt, 3 N. Y. 276. 26. Real estate directed to be converted into money is regarded as personal prop- erty. Bramliall v. Ferris, 14 N. Y. 41 ; Kinnier v. Rogers, 42 id. 531 ; Hatch v. Bassett, 52 id. 359 ; Matter of McGraw, 111 id. 66 ; Cottman v, Grace, 112 id. 299 ; Under- wood V. Curtis, 127 id. 523. 26. When conversion takes place, although power of sale is not in terms imperative. Dodge V. Pond, 23 N. Y. 69 ; Power v. Cassidy, 79 id. 603 ; Lent v. Howard, 89 d. 169 ; Shipman v. Rollins, 98 id. 336. 27. Absolute and immediate power of sale effected conversion. Moncrief v. Ross, 50 K. Y. 431. 28. To constitute conversion it must be the duty of the executors to sell in any event. Qourley v. Campbell, 66 N. Y. 169 ; Newell v. Nichols, 75 id. 78 ; Hobson v. Hale, 95 id. 588 ; Chamberlain v. Taylor, 105 id. 185 ; Henderson v. Henderson, 113 id. 1 ; Underwood v. Curtis, 127 id. 533 ; Fraser v. McNaughton, 58 Hun, 30 ; Fowler v. Depau, 26 Barb. 224; Wright v. Meth. E. Ch., 1 HofE. Ch. 201. See Shipman v. Rollins, 98 N. Y. 311. 29 No conversion when not imperatively directed and not necessary. Chamberlain v. Taylor, 105 N. Y. 185 ; Scholle v. Scholle, 113 id. 261. 30. Imperative power to convert inferred from the whole will. Delafield v. Barlow, 107 N. Y. 535. 31. Necessity of conversion when it effects conversion. Asche V. Asche, 113 N. Y. 233; Fraser v. Trustees, etc., 134 id. 479; Haxtun v. Corse. 2 Barb. Ch. 506. 33. When conversion is deemed to take place. Ross V. Roberts. 2 Hun. 90, aff'd 63 N. Y. 652; Shumway v. Harmon, 4 Hun, 411 33a. Intent governs. Matter of Cobb, 14 Misc. 409. 33. When power of sale without direction to sell does not work conversion. Harris v. Clark, 7 N. Y. 242; Newell v. Nichols, 75 id. 78; Scholle v. Scholle, 113 id. 261 ; but see Delafield v. Barlow, 107 id. 535. 34. When discretionary power of sale does not effect conversion, until exercised. White V. Howard. 46 N. Y. 144; Newell v. Nichols, 75 id. 78; Matter of Roches- ter, 110 id. 159; Henderson v. Henderson, 113 id. 1; Scholle v. Scholle, id. 361; but see Delafield v. Barlow, 107 id. 535. 35. Discretion as to time and manner of sale. Tillman v. Davis, 95 N. Y. 17; Matter of McGraw, 111 id. 159; Ogsbury v. Ogsbury, 115 id. 290. 36. Power to sell given in terms of discretion. Delafield v. Barlow, 107 N. Y. 535; Matter of Rochester, 110 id. 159. 37. Power to sell without necessity of exercising. Matter of Clark, 62 Hun, 275. 38. Discretionary power of sale does not effect conversion. Butler V. Green, 65 Hun, 99. % 920 POWEES. _^ IV. POWER OF SALE. 1. EQUITABLE CONVERSION. 39. Permission to sell no conversion. Palmer v. Marshall, 81 Hun, 15. 40. Discretionary power. Trowbridge v. Metcalf, 5 App. Div. 318; Smith v. Kearney, 2 Barb. Ch. 533. 41. Power to sell not implied from charge to pay debts. Matter of Fox, 53 N. Y. 580. 48. Power to sell to pay debts charged on laud. VanVechten v. Keator, 63 N. Y. 63. 48. Power of sale for purposes of division. Fisher v. Banta, 66 N. Y. 468. 44. Conversion for purposes of administration. Tillman v. Davis, 95 N. Y. 17. 45. Conversion to pay legacies. Chamberlain v. Taylor, 105 N. Y. 185; Delafield v. Barlow, 107 id. 585; Cottman V. Grace, 113 id. 299; Smith v. Kearney, 3 Barb. Ch. 533. 46. Power to sell for benefit of devisees, does not effect conversion to pay debts. Matter of McComb, 117 N. Y. 378. 47. Devise of proceeds of sale worked conversion. Hope V. Brewer, 136 N. Y. 138. 48. Direction to sell for purposes of division. Miller v. Gilbert, 144 N. Y. 68. 49. Assets insufficient to pay legacies and worked power of sale. Matter of Cobb, 14 Misc. 409. 50. Antenuptial contract working equitable conversion. De Barante v. Gott, 6 Barb. 493. 51. Power of sale to pay legacies — effect of. Betts V. Betts, 4 Abb. N. C. 317. 53. Direction to convert at termination of life estate. Vincent v. Newhouse, 83 N. Y. 505; Tillman v. Davis, 95 id, 17; Smith v. Kear- ney, 3 Barb. Ch. 533. 53. Conversion taking effect at death of life tenant. Tillman v. Davis, 95 N. Y. 17; Vincent v. Newhouse, 83 id. 505. 54. Conversion for payment of legacies with payment deferred. Finley v. Bent, 95 N. Y. 364. 55. Conversion to be effected as soon as it can be, having in view the best interests of the estate. Matter of McGraw, 111 N. Y. 66. 56. Conversion taking place at death of testator. Cottman v. Grace, 113 N. Y. 399; Underwood v. Curtis, 137 id. 533; Matter of Cobb, 14 Misc. 409; Matter of Bennett, 16 id. 199; VanVechten v. VanVeghten, 8 Paige, 104. 57. Discretion as to manner and terms of sale. Graham v. Livingston, 7 Hun, 11. 58. Conversion not to take place until a definite time. Gano V. McCunn, 56 How. Pr. 337. ly. PURPOSES FOR WHICH POWERS MAY BB CREATED. 921 IV. POWER OF SALK 1. EQUITABLE COHTSESION. 59. Conversion resulting from sale en foreclosure. Haberman v. Baker, 128 N. Y. 253; Tonkers Savings Bank v. Kinsley, 78 Hun, 186. 60. Proceeds of sale resulting from judicial procedure. Ford V. Livingston, 140 N. Y. 162; Matter of Thomas, 1 Hun, 473 (Partition). 61. Application of doctrine in connection with statute of perpetuities and accumu, lations. Wetmore v. Parker, 52 N. Y. 450; Cruikshank v. Home, etc., 113 id. 337; Under- wood V. Curtis, 127 id. 523; Hope v. Brewer, 136 id. 126. 63. Doctrine as applied to the statutes of distribution and descent. Gourley v. Campbell, 63 N. Y. 169; Denham v. Cornell, 67 id. 556; Delaney v. Mc- Cormack, 88 id. 174; Haberman v. Baker, 128 id. 253; Matter of Wangner, 74 Hun, 352; Valentice v. Wetlierill, 31 Barb. 655; Wood v. Cone, 7 Paige, 471; Marsh v. Wheeler, 3 Edw. Ch. 156. 63. Equitable conversion with reference to the application of the law of trusts. Savage v. Burnham, 17 N. Y. 561; Bramhall v. Ferris, 14 id. 41; Graham v. Read, 57 id. 681; Wells v. Wells, 88 id. 323; Underwood v. Curtis, 127 id. 523; Arnold v Gilbert, 3 Sandf. Ch. 531. 64. Election of beneficiaries to reconvert the property. Prentice v. Janssen, 79 N. Y. 478; Morse v. Morse, 85 id. 53; Armstrong v. McKcj- vey, 104 id. 179. 65. Reconversion. Yonkers Savings Bank v. Kinsley, 78 Hun, 186. 66. Rents and profits. Lent V. Howard, 89 K. Y. 169; Cruikshank v. Home, etc., 113 id. 337; Ogsbury v. Ogsbury, 115 id. 290; Smith v. Kearney, 2 Barb. Ch. 533. 67. Effect of conversion upon action for partition. Underwood v. Curtis, 127 N. T. 523. 68. When corporations not authorized to take land can take proceeds thereof under direction for conversion. Downing V. Marshall, 23 N. Y. 366; Hope v. Brewer, 136 id. 126. 69. Bearing of the doctrine on foreign wills. White V, Howard, 46 N. Y. 144. 70. Conflict of laws. Hope V. Brewer, 136 N. Y. 126. 71. Action to construe will in case of equitable conversion Underwood v. Curtis, 127 N. Y. 533. 73. Doctrine applied in case of contracts for sale of land. Williams v. Haddock, 145 N. Y. 144. 73. When proceeds are in hands of executors for all purposes of administration. Matter of Bolton, 146 N. Y. 257. 74. Failure to invest proceeds. Butler V. Green, 65 Hun, 99. 116 922 POWEES. IV. POWER OF SALE. 1. EQUITABLE CONVERSION. A testator devised and bequeathed all his real and personal estate to his executors, in trust, to sell the same whenever they should see fit ; also with authority to lease the same, and directed the executors to divide the whole trust estate into nine equal parts, and pay over and convey one of said parts to each of his four children who were of age, and to hold the remaining five parts until his minor children should respectively become of age, and to pay over and convey to them their shares as they should become of age. , Construction : The executor could be compelled to account before the surrogate, not only for the personal estate bequeathed to him, but also for the rents and profits of the real estate, and for the proceeds of such real estate as he had sold pursuant to the directions contained in the will. It seems, upon the doctrine of equitable conversion, that under such a will the whole estate is to be considered as personal estate from the ■death of the testator, so that the rents and profits of the real estate re- ceived by the executor, and the proceeds of a sale thereof made by him, become legal assets in his hands, for which he is bound to account as personal -estate. Stagg v. Jackson, 1 N. Y. 206. Note, — " The intent and direction of the testator to sell the land was absolute, or 'out and out,' for all purposes. The discretion of the executor in respect to the sale related merely to the time when, etc. (Bogert v. Hertell, 4 Hill, 493; Ram on Assets, 306; Leigh & Dalzell on Con. of Prop. ch. 1, 3, 3; Smith v. Claxton, 4 Mad. 484; Marsh V. Wheeler, 3 Eden. Ch. R. 157; Doughty v. Bull, 3 P. Wms. 330; Deg v. Deg, Id. 415; 1 Jarman on Wills, ch. 19.)" (313.) When power of sale is so limited as not to work a conversion of realty into personalty. Allen v. DeWitt, 3 N. Y. 276, digested p. 979. A testator by his will gave to his wife for life the rents of certain lands, and directed that after her death the lands should be sold, and the proceeds divided among three persons, named in the will. Construction : This was a gift of money and not of lands and was valid though the beneficiaries were aliens. The will being silent as to the person who should sell -the lands, a power was given by implication to the executors to make the sale; and such power was well executed by a deed from one executor, the others not having qualified. IV. PURPOSES FOB WHICH POWERS MAY BE CKEATED. 92§ IV. POWER OF SALE. 1. EQUITABLE CONVERSION. Same case: The deed given on the sale, was objected to on the trial, on the grounds, first, that tbe executors had no power of sale ; and second, that the power was not well executed, because all the executors did not join in the deed. Construction : The objection could not be made, on appeal, that the power was not well executed, because the deed on its face showed that only a nominal consideration was received for the lands. That ground, if relied upon, should have been taken on the trial. MeaMngs v. Cromwell. 5 N. Y. 136 ; see 2 Sandf. Sup. Ct. Eep. 512. A devise of real estate to executors with power to sell, but without directing a sale, does not effect a conversion of the real into personal estate. Harris v. Clark, 7 N. Y. 242, digested p. 410. The object of the statute (2 R S. 195, sec. 180) which declares that the proceeds of an infant's lands sold by order of the court of chancery, shall be deemed real estate, was to preserve during his minority the character of the property in reference to the statutes regulating descents and distributions. The character impressed upon the proceeds by the statute ceases on the infant's attaining his majority and obtaining possession thereof. The real estate of an infant was sold under the direction of the court, and a bond and mortgage thereon was executed to his special guardian to secure the purchase money; and the infant, after his majority, settled the guardian's account touching the trust and discharged him therefrom, took from him individually a receipt for the bond and mortgage and constituted him his attorney to collect and reinvest the amount se- cured thereby in his discretion, and before payment of any part of the amount died intestate. Construction : The bond and mortgage and the moneys secured thereby were per- sonal estate, and to be distributed as such. For man v. Marsh, 11 K Y. 544. Citing, Pultney v. Darlington, 1 Bro. 0. C. 333 ; 7 Bro. P. C. 530 ; Rashleigh v. Master, 1 Ves. Jr. 301; Wlieldale v. Patridge, 8 id. 337; Earls of Winchelsea v. Norclifle, 1 Vern. 485 ; Witter v. Witter, 3 P. Wms. 101 ; Peirson v. Shore, 1 Atk. 480 ; Oxenden v. Lord Compton, 3 Ves. Jr. 69; s. c, Bro. Ch. 0. 331 ; Ashburton v. Ashburton, 6 Ves. 6; Ware v. Polhill, 11 id.357, 378; Exparte Philips, 19 id. 133, 133, also see 147 N. Y. 570. 924 powEBS. IV. POWEB OF SALE. 1. EQUITABLE CONTERSION. In equity real estate which by a will is directed to be converted into money, is regarded as personal property. Testator, with a view to provide for the support of a son and his family, divided and bequeathed his real and personal estate to his execu- tors and directed them to sell it and invest the proceeds, and gave the use and income thereof to the son for life, and the principal over to others on his decease Construction : A valid trust was created. Bramhall v. Ferris, 14 N. Y. 41. Citing, Bogert v. Hertell, 4 Hill, 492; Stagg v. Jackson, 1 Comst. 206. The law in respect to trusts of personal property has no application until the period arrives when the equitable conversion can take place under the terms of the trust. Until then, it is governed by the law of trusts in lands. Savage v. Burnham, 17 N. Y. 561. Where a testator authorizes his executors to sell real estate, and it is apparent from the general provisions of the will that he intended such estate to be sold, the doctrine of equitable conversion applies, although the power of sale is not, in terms, imperative. Dodge v. Pond, 23 N. Y. 69. The prohibition in the statute of devises to corporations not expressly authorized to take by the legislature, renders void the power so far as it would operate to give the rents and profits of land for the benefit of the corporations not thus authorized. They can take no interest in land under a power created by will. As to such corporations, however, the power to sell the land is valid. They are free to take money or personal property by testamentary gift, though it is to be raised by the conversion of land. Downing v. Mar- shall, 23 N. Y. 366. The testator, by his will, after directing payment of his debts and making various bequests and a devise of his interest in certain desig- nated real estate, gave " all the rest, residue and remainder of my estate, both real and personal," to his children. He then proceeded to name executors and authorized them " to sell all or any part of my real estate at any time, in their discretion, and to execute valid deeds of convey- ance for the same to the purchasers." Construction : This power of sale did not charge the real estate, embraced in the re- siduary clause, with the payment of the debts and bequests, but was a IV. PUKPOSES FOR WHICH POWERS MAY BE CREATED. 925 IV. POWER OF SALE. 1. KQUITABJjE convbksion. valid power in trust to convert it into personalty, for convenience of distribution, to avoid the expense and delay of partition or otiier legal proceedings, thus beneficial to those interested in the residuary estate ; and the executors could convey good title. Kinnier v. Rogers, 42 N. Y. 631. Acts lawfully directed to be done are regarded as done at the time directed. On this principle rests the doctrine of equitable conversion. Manice v. Manice, 43 N. Y. 305, 372. Citing 1 Story's Eq. Jur. sec. 64g; 2 Id. sees. 790, 1213, 1214; Lorillard v. Coster, 5 Paige, 218; Bunce v. Vandergrift, 8 id. 37, 40; Craig v. Leslie, 3 Wheat. 577; 1 Fon- blanque's Eq. 419, 420, bk. 1, cli. 6, sec. 9, 4th Am. ed. ; Fletcher v. -Ashburner, 1 White & Tudor's Leading Cases in Eq., 3d Am. ed. notes p. 808; Kane v. Gott, 24 Wend. 660; Sugden on Vendors, ch. 4, sec. 1; cli. 16,' sec. 1; Lewin on Trusts, 793. W. B., a resident of the state of Connecticut, died seized of real es- tate situate in that state and in New York, and leaving a last will and testament, which, after providing for certain legacies, etc., gave all the residue of his estate, real and personal, to his executors, and the survi- vor of them, as joint tenants upon certain specified trusts. By another clause, he authorized said trustees to sell the real estate in Connecticut, and to invest the proceeds in real estate, loans, bonds and stocks located in the New England states or in the state of New York. Construction : 1st. The will gave the trustees no power to sell the real estate, of which testator died seized, situate in New York. 2d. The power of sale, if any was conferred, is discretionary, and until exercised by an actual sale, did not efiEect a constructive or equita- ble conversion of the realty into personalty. 8d. The real estate situate in New York, both that of which the testa- tor died seized and that purchased by the trustees, must be regarded as realty, and the validity of the testamentary disposition thereof, and the rights of those claiming it by descent, must be determined by the laws of this state. White v. Howard, 46 N. Y. 144; s. a, 52 Barb. 294. Citing Wright v. Trustees, 1 Hoff. Ch. 203; Stagg v. Jackson, 1 Comst. 206. The title to a greater portion of the real estate of which the testatrix died seized, vested in her heirs upon her death, subject to the execution of a power of sale by the executors, and said executors were directed to sell and convey said real estate in pursuance of a contract made by them. This was accordingly done and the proceeds paid over to the county treasurer. Subsequently one of the heirs, an infant over eighteen years 926 POWERS. IV. POWER OF SALE. 1. EQUITABLE C0NVEK8I0N. of age, died, leaving a will whereby she devised and bequeathed all of her property to her husband, who petitioned to have the share of his wife in the fund paid over to him. Held, that the proceeds of the sale were to be regarded as personal property, and that the portion of the infant heir could be disposed of by, and passed under her will. Where real estate owned by tenants in common, of whom an infant is one, is sold under and in pursuance of a judgment in a partition suit^ instituted by others of the tenants in common, the portion of the pro- ceeds belonging to the infant remains impressed with the character of real estate, and as such does not pass under the infant's will. Horton V. McCoy, 47 K Y. 21. An absolute and immediate power of sale operated to equitably con- vert the real estate into personalty. Moncrief v. Ross, 50 N. Y. 131, digested p, 881. A will provided, " after my death my executors * * * shall sell at public or private sale, as they deem best, all my personal and real estate." This was an equitable conversion of the real estate into per- sonalty. Hatch V. Bassett, 52 K Y. 359. As to the conversion of realty into personalty in connection with the statute of perpetuities and accumulations, see Wetmore v. Parker, 52 E". Y. 450. A power in executors to sell lands will not be implied from the fact that the lands are charged with the payment of debts. Matter of Fox, 52 K Y. 530. Citing, Lupton v. Lupton, 3 J. Ch. 614; Jones v. Hughes, 6 Exch. 233; Robinson V. Lowater, 17 Beav. 593; 5 De G., M. & G. 271; Bourne v. Bourne, 3 Hare, 35; Stagg V. Jackson, 1 Comst. 306; Harris v. Clark, 7 N. Y. 343; Savage v. Burniiam 17 id. 561; Clark v. Riddle, 11 S. & R. 311. The will of V., by its first clause, gave all his estate to his trustees and executors, to be disposed of as thereinafter directed; following this was a clause giving certain premises to his wife ; also, power was given to his executors to sell said premises for not less than a sum specified and to invest the proceeds for her benefit during life. Construction : The executors took no title to said premises as the interest of the wife was not limited to a use only, and as the power of sale was contin- gent, not absolute, no such imolication arose, from the direction as to the investment of the proceeds in case of sale, as would cut down her IV. PURPOSES FOR WHICH POWERS MAY BE CREATED. 927" IV. POWER OF SALE. 1. EQUITABLE CONVERSION. interest to a life estate, and she took a fee subject to the power of sale. Vernon v. Vernon, 53 N. Y. 351. Citing, Boynton v. Hoyt, 1 Denio, 54. When land is intended to be converted into money, it will be re- garded as such, in reference to the law relating to trusts. Graham v. Bead, 57 N. Y. 681-683. A., by will, charged her real estate with the payment of debts and em- powered her executors to sell so much thereof as should be necessary for that purpose. A sale in pursuance of such power operated as a con- version of the realty to personalty of so much thereof as should be sold for that purpose. Van Vechten v. Keator, 63 N. Y. 52, digested p. 905. Will directed executors to close his business, place the proceeds thereof and all his property, both real and personal, at interest on bond and mortgage, or otherwise, as in their judgment they may deem best, and to use " the proceeds, rents, income or interest " for the support and maintenance of the testator's wife and children ; he then devised and bequeathed all his estate, both real and personal, to his children, to be divided upon the death of his wife. The three children all died unmar- ried and intestate prior to the widow, but after testator. No part of the real estate was sold. After the death of the widow her next of kin claimed that the real estate had been converted and that she was entitled to some portion thereof. The defendants are heirs of testator. Construction : There was no intent to convert absolutely the real estate into money and no conversion was made. The personal estate being amply sufficient for the support and main- tenance of the testator's widow and children, and no necessity existing for the sale thereof for that purpose, the purpose failed to this extent, and the land retained its original character and descended to the heirs at law. Gourley v. Campbell, 66 K Y. 169, 6 Hun, 218. Citing, Chitty v. Parker, 3 Ves. Jr. 271. Note. — To constitute a conversion of realty into personalty it must be made the duty of the executors to sell in any event. White v. Howard, 4G N. Y. 163; see, 33 id. 69; "Wright v. Trustees, 1 HofE. Ch. 318; Slocum v. Slocum, 4 Bdw. Ch. 613; ■Jackson v. Jansen, 6 J. R. 78; Robinson v. Taylor, 3 Browns' Ch. Cas. 595. Direction to executrix, B., to divide real estate equally between his two sons 0. and D. after the youngest arrived at the age of twenty-three" 928 POWERS. IV. POWER OF SALE. 1. EQUITABLE CONVERSION. in codicil, direction tliat executrix sell all the real estate. Both .sons survived the testator. Construction : The fair inference was, in absence of expression in the will, that the purpose of the sale was for division, and that as sons survived testator, the purpose had not failed ; that the direction to sell converted real es- tate into personalty upon the death of the testator, and that the sons took their interests as legatees.' C. having died before actual sale, his interest passed to his personal representatives. The conversion was not prevented because legal estate was not given in trust to executrix, or because the land was not devised to sons, as land passed by descent to sons." Fisher v. Banta, C6 N. Y. 468. When the interests in proceeds of sale of land are the same as in the land, the right of judgment creditors in the estate of a life tenant is subject to a power of sale vested in him, and liable to be cut of J by a sale in pursuance thereof. The lien in such event would be transferred from the land and attach to the interest of the judgment debtor in the proceeds. Ackerman v. Gorton, 67 N. Y. 63, 67, digested p. 301. Where one having an interest in lands dies intestate after the sale thereof, his interest in the money realized from the sale is personal estate and goes to the administrators, not to the heirs at law. Denham V. Cornell, 67 N. Y. 556, afiE'g 7 Hun, 662. When a power to sell is discretionary, there is no equitable conver- sion. Newell V. Nichols, 75 N. Y. 78, digested p. 1065. Where a will directs real estate to be converted into money, and the proceeds distributed, the parties entitled thereto may, if of lawful age, and if the rights of others will not be affected, elect to take the lands and prevent the actual conversion thereof into personalty. No distinct or positive act is required, a slight expression of intent will be considered sufficient to show an election. The court has power, in an equitable action for partition, where the parties are tenants in common of real or personal estate, to direct the sale of the whole in one parcel, where the interests of the parties will be promoted by such sale. •Fletcher v. Ashburner, 1 Bro. Ch. Cas. 497; Leslie v. Craig, 3 Wheat. 587; Bo- gart V. Hertell, 4 Hill, 492; btagg v. .Jackson, 1 Comst. 306. •1 Jar. 465; Post v. Hover, 33 N. T. 593; Bogert v. Hertell, 4 Hill, 492. IV. PURPOSES FOR WHICH POWERS MAY BE CREATED. 929 [V. POWER OF SALE. 1. EQUITABLE CONVERSION. The will of B. authorized his son F. to carry on the hotel business for five years, if he so desired, in a certain hotel owned by the testator ; and empowered his executors to sell the hotel property, after the occu- pancy of his son had ceased, and divide the proceeds among his residu- ary legatees. F. died before the testator ; no action was ever taken by the executors to sell the property. Three of the four legatees, or their successors in interest, conveyed their interests to plaintiEf. Defendant M., the other legatee, joined with the plaintiff in making leases of the property ; and large sums were expended by them in making improve- ments. In an action for partition, the only surviving executor was made a party defendant, as the husband of M.; he did not, by his an- swer, claim any rights as executor, or that he was a proper party as such. Construction : (1) The executors took no interest in the lands, but merely a power in trust, to be executed simply for the purpose of distribution, liable to be defeated by a reconvei-sion into realty of the property which was converted by the will into personalty ; (2) the parties beneficially in- terested had a right to elect to make such a reconversion, and their acts showed such an election ; (3) the power of sale thereby became ex- tinguished, and the parties became owners as tenants in common, and so a partition was proper; (4) the surviving executor had no title, in- terest, or lien upon the property which rendered him a necessary party to the action as such executor ; (5) the provision of the Revised Stat- utes (1 R. S. 735, sec. 107), which makes a power of sale a lien or charge upon land, had no application, as the power had ceased to exist ; (6) equity would not interpose to compel the execution of the power (1 R. S. 734, sec. 96), as the purpose had been accomplished without its exercise. Prentice v. Janssen, 79 IST. Y. 478. Citing, Hetzel v. Barber, 69 N. Y. 1, 11 ; Garvey v. McDevitt, 73 id. 563 ; Critten- den V. Fairchild, 41 id. 389, 293; see, Power of sale, p. 910. When a conversion of realty into personalty will be effected, al- though the power of sale is not, in terms, imperative. Power v. Cassidy, 79 N. Y. 602. digested p. 861. The doctrine of equitable conversion, of realty into personalty, did not exist in the law of New Netherlands in 1663. Van Oeissen v. Bridg- ford, 83 N. Y. 348. Devise to wife for life, and directing that at her death the lands should be sold by the executor and " tbe proceeds be equally divided between 117 930 POWERS, IV. POWER OF SALE. 1. BQUITABLB CONYEESION. my daughters S., H. and J., and the children and heirs of my sons B. and S., and of my daugter C, share and share alike, and if either of the heirs above mentioned and intended shall die after the date of this will and before the said sums are paid them, the share of the one so dying without issue shall be equally divided among the other heirs above mentioned." Testator left him surviving a widow and six children. H. and J. died leaving no children, B. died leaving a son and grandson, and S., son, died leaving seven children. Then the widow died, and thereafter C died without issue. Construction : A conversion of the land into money was intended, the actual con- version not to take place until the termination of the life estate ; and by the provision the land was equitably converted into money from the time the sale was directed to be made. The remainder vested upon the death of the widow. H. and J. having died before that time, and 0. after that time without issue, the proceeds were to be divided between S., daughter, the children of S., son and child and grandchild of B., per stirpes and not^er capita. Vincent v. Newhouse, 83 N. Y. 505. Citing, on time of vesting, Teed v. Morton, 60 N. Y. 502 ; Hoghton v. Whit- greave, 1 Jac. & Walker Ch. Rep. 145. There was no reconversion into realty by the election of parties rep- resenting the whole beneficial interest. Morse y. Morse, 85 N. Y. 53, digested p. 627. See Power of sale, p. 910. When, under doctrine of equitable conversion, the real estate is to be considered personalty, the proceeds of sale, when received by executor, becomes assets in the hands of the executor as such, for which he must account before the surrogate, as well as for the rents and profits. Hood v. Rood, 85 N. Y. 561, rev'g 19 Hun, 300. Citing, Stagg v. Jackson, 1 N. Y. 306. See, Dill v. Wisner, 88 id. 153. A devise of the proceeds of lands directed to be sold by the execu- tors is a devise of the land within the statute, although the naked title remains in heirs until sala Byrnes v. Baer, 86 N". Y. 210. The will of W. gave all of his real estate to his son J. for life, and in fee in case his son married and had issue. If he died without having had lawful issue the will directed the executor or executors then sur- viving, to sell said real estate and distribute the proceeds among the testator's " next of kin as personal estate according to the laws of the IV. PURPOSES FOB WHICH POWERS MAY BE CREATED. 931 IT. POWER OF SALE. 1. EQUITABLE CONTEBBION. State of New York, for the distribution of intestate personal estate." The executors named were J. and two others ; at the testator's death he left J., four nieces and a nephew, surviving. J. died without having had lawful issue, the other two executors were then dead, the four nieces also died during the lifetime of J., leaving children. Action brought by the nephew for the construction of the will and the appoint- ment of a trustee to carry out its unexecuted .provisions. Construction : (1) The will created a general power in trust, the execution whereof was imperative (1 R S. 732, sees. 74, 77 ; 734, sees. 94, 96) ; (2) upon the death of the surviving trustee his powers and duties became vested in the court, and might be exercised by some person appointed by it for that purpose (1 R. S. 734, sec. 102 ; id. 730, sec. 68) ; (3) as the gift was money and the direction for conversion absolute, the " next of kin," to whom the proceeds of the real estate were to be distributed, were those who were such at the time of distribution, i. e., at the death of J. ; and therefore plaintiff was entitled to all of said proceeds. Delaney v. McCormach, 88 K Y. 174. Citing, Dominick v. Sayre, 3 Sandf. 555; Cotton v. Taylor, 43 Barb. 578 ; Teed v. Morton, 60 K. T. 506; Vincent v. Newhouse, 83 id. 511. Direction by testator to convert his estate, real and personal, into money, invest the proceeds as specified, and apply the same as directed. Under the doctrine of equitable conversion the trust was one of per- sonal property. WelU v. Wells, 88 K Y. 323, digested p. 435 Where a will contains no specific devise of the testator's real estate, but a bare power of sale is given to the executors and the title descends to the heirs of the testator, subject to the execution of the power, the right of possession follows the title and the heirs are entitled at law to the intermediate rents and profits. If, however, the power of sale operates as an immediate conversion of the land into personalty, accompanied with a gift o£ the proceeds, in equity the intermediate rents and profits go with and are deemed to be a part of the converted fund ; the heir may be compelled to account therefor to the executor, and the latter to the beneficiary, for so much thereof as is received by him, as well as for the proceeds of sales. Where the general scheme of the will requires a conversion, the power of sale, although not in terms imperative, operates as a conver- sion, and this will be deemed to be immediate, although the donee of 932 POWERS. IV. POWER OF SALE. 1. EQUITABLE CONTEBSION. the power is vested, for the benefit of the estate, with a discretion as to the time of sale. The will of L., after giving various legacies, contained a clause au- thorizing his executors to sell all of his real estate, except his home- stead farm, at such times and prices as to them should seem best for the interest of the estate, and after carrying out the foregoing provisions to invest the balance of the estate in their hands in bonds and mortgages or in state stocks. One-half of such balance the testator gave to his daughter L., to be paid to her when she arrived of age ; in case of her death, before the testator's wife, without lawful issue, the same to be paid to the wife. The other half hs gave to his wife, to be paid to her ten years after his decease. In case of her death before the daughter, said one-half to be paid to the daughter. The homestead farm was de- vised to the wife for life. The executors received the rents and profits of the real estate. Action for an accounting. Construction : By said clause there was a conversion of testator's real estate, with the exception specified, into personalty, as of the time of his death, and a gift of the converted fund together with the intermediate income to the wife and daughter with cross-remainders; and the rents and profits received by the executors, and the proceeds of sales were prop- erly brought into the accounting. Lent y, Howard, 89 N". Y. 169. See same ease, ante, p. 907. Where by a will the title to real estate is vested in two executors in trust, with power to sell, one of the executors can not, without the as- sent of the other, enter into a contract to convey, which will be valid and binding upon the other. It seems, that as to personal property the rule is otherwise. The fact, however, that by and under the terms of the will, there is an equitable conversion for certain purposes of the real estate into per- sonalty, does not change the rule as to it; until actual conversion it may only be conveyed as real estate, and the rules of law governino- such conveyances remain applicable. Wilder v. Ranney, 95 N. Y. 7, 12. The will of Gr. gave her residuary estate to hen executors in trust, with power to receive the rents and profits of the real estate, and to sell the same when and in such manner as in their discretion might seem expedient; also to convert and collect the personalty, to invest the pro- IV. PURPOSES FOR WHICH POWERS MAT BE CREATED. 933 IV. POWER OF SALE. 1. EQTJITABLB CONTEKSION. ceeds of both, and, after setting apart out of the estate or the proceeds a sum specified, to receive the rents and income of the remainder, and apply the same to the use of the testator's husband during life. After his decease, and after the deduction of certain legacies given out of the fund, she directed, the residue to be divided into certain shares or parts, each of which she gave to a beneficiary named, one part being given to D., etc. Action to determine, among other things the interests of the parties under the will oE G. Construction : By the terms of the will all of the real estate of the testatrix was, lapon the death of her husband, to be converted into money for tlie pur- pose of distribution, and hence the whole estate at that time was to be considered as personalty. Tillman v. Davis, 95 N. Y. 17. The will of B. gave his residuary estate to his executors in trust, with directions to sell all of his real estate, and after investing a sum speci- fied for the benefit of the testator's wife, to divide without delay, after his decease, the remainder of the residue into three shares, one for each of his three children, each share to be invested and the income to be paid to the beneficiary. After deducting previous payments of install- ments from the principal the balance of each share was directed to be paid to the beneficiary at the expiration of five years after the testator's death. The will then provided that in case of the death of either of his children " before the full payment of the whole of his or her share," so much thereof as remained unpaid should be paid to the lawful issue of the one so dying, if any, etc. A., one of 'the testator's said children, died more than five years after the death of the testator, leaving one child. At the time of her death a considerable portion of the testator's real estate remained undisposed of, and she had not received her share. Construction : The direction to sell operated as a conversion of the real estate into personalty ; the shares given to the children vested at once upon the ^eath of the testator, subject to be divested as to so much of each share as within the meaning of the will remained unpaid in case of the deatb of the beneficiary ; the words " die before full payment " mean, not before actual payment, but before the share becomes actually payable ; and therefore the sh'ire of A. was not divested, but passed as part of hei 934 POWERS. IV, POWER OF SALE. 1. EQUITABLE CONVERSION. personal estate to her legal representatives, not to her child. Finley v. Bent, 95 N. Y. 364. For this class of cases, see ante, pp. 258, 369. There must be an explicit direction to convert to invoke the doctrine of equitable conversion of real estate into personalty. Hohson v. Hah, 95 N. Y. 588, digested p. 442. Although the direction to sell was not imperative, as it is apparent, from the general provisions of the will, that the testator intended such real estate to be sold, the doctrine of equitable conversion will apply. Shipman v. Rollins, 98 N. Y. 311, 326. Citing, Power v. Cassidy, 79 N. Y. 602. Eeconversion of property by election of beneficiaries, to take land itself rather than proceeds, directed to be sold by testator. Armstrong V. McKelvey, 104 N. Y. 179, digested p. 909. See, Power of sale, ante, p. 910. Conversion does not take place when not necessary for purposes of valid provision of will and when no imperative direction is given there- for. Undoubtedly a strong implication arises from the use of the word " paid " in directing the satisfaction of the legacies, that it was intended by the testator that the real estate should be converted into money, and thus handed over to the legatees, but there is no imperative direction given to sell the lands, neither do the purposes of the will require such a sale, and a legal performance of the duties enjoined upon the execu- tors could have been effected by a distribution of the property in specie, to the legatees. Chamberlain v. Taylor, 105 N". Y. 185. S. died, leaving his wife and four daughters surviving him. By his will he directed his executors to divide one-half of his residuary estate, real and personal, into four equal parts, which he gave to said executors L in trust to receive and apply the rents and profits to the use of the tes- tator's wife during her life ; after her death the rents and profits of one of said parts to the use of each of his said children during life, and upon her death " to pay over, transfer and deliver the principal of said one-fourth part, together with any arrears of income " to her heirs or to such person or uses as said daughter " may by her will appoint." The other half he directed his executors also to divide into four parts and to give one to each of the testator's said children. The will also provided that any moneys advanced to either of said children and charged in the testator's books of account against her share in the estate, should be deducted " from the sum bequeathed to such daughter in IV. PURPOSES FOB WHICH POWERS MAY BE CREATED. 935 IV. POWER OF SALE. 1. EquITABLB CONTBRSION. this section." The will also empowered the executors " for the purpose of carrying into efiEect " the will and the trusts therein created, to sell " in their discretion " any and all of the real estate. Action for partition of certain real estate of an interest in which the testator died, seized, and which was included in said residuary clause. Construction : An infant child of one of the daughters was not a necessary or proper party defendant under the Code of Civil Procedure (sec. 1538); she never could take the real estate, and had no title thereto or interest therein as realty, but the whole title vested in the executors and trustees ; con- struing ail of the provisions of the will together, the direction to sell the real estate was imperative and there was, therefore, an equitable con- version thereof into personalty. Delafield v. Barlow, 107 N. Y. 535 Citing, Morse v. Morse, 85 N. T. 53. No equitable conversion was worked of the real estate into personalty by the power of sale to the executor and trustee ; for it was not obli- gatory upon him, and a merely discretionary power of selling produces no such result. Matter of City of Rochester, 110 N. Y. 159, 167. When a will directs that the estate shall be converted into money or available securities by the executor as soon as it can be done, having in view the best interests of the estate, the direction operates as an equit- able conversion. Matter of Mc Or aw, 111 NT. Y. QQ, 113. The direction to the executor to convert the real and personal estate, except the library, into money for the purposes of the will, viz., the payment of debts, the investment of a fund for the payment of annu- ities, and the residuary gift (which, in terms, is of the proceeds of the sale), operated as an equitable conversion of the real estate into person- alty as of the time of the death of the testator. Cottman v. Grace, 112 N. Y. 299, 305. Citing, Fisher v. Banta, 66 N. T. 468; Lent v. Howard, 89 id. 169. The interest in the lands of the testator vested in the children upon the testator's death, subject to the power in the executor to partition them, and subject to being divested by a sale under the power. There was no equitable conversion worked of the realty into personalty, for the power of sale was not absolute. If the real estate was converted into money by a sale, under the power, the proceeds would still partake of the nature of realty. Henderson v. Henderson, 113 K Y. 1, 14. L. died leaving a widow and no children. His will, after a devise of 936 powEES. IV. POWER OF SALE. 1. EQUITABLE CONVEBSION. his residuary real estate to three persons named, his next of kin and heirs, who were nonresident aliens, contained a direction that said real estate be sold at auction by a referee appointed by the supreme court, the net proceeds to be deposited in court " in the same manner as money belonging to nonresidents," for the use and benefit of the devisees, "sub- ject to the further order of the court" In an action for the construc- tion of the will it appeared that two of the devisees died before the tes- tator ; the court found that the gifts to them lapsed, and as to their por- tions the testator died intestate. The court below also found that the direction for a sale worked an equitable conversion of the real estate into personalty, and the portion so undisposed of was to be distributed as such ; that is, to the widow one-half and $2,000 in addition. Construction : Error ; the direction for a conversion was simply for the purposes of the will, and while as to the nonresident aliens the doctrine of conver- sion would, if necessary, apply in their favor (Lewin on Trusts, 7th ed., 812), if not required for that purpose, a conversion would not be pre- sumed (Chamberlain v. Taylor, 105 N. Y. 185); and, so far as the widow was concerned, the property undisposed of, whether a sale was necessary or not, devolved according to its original character (Gourley v. Campbell, 66 N. Y. 169> Parker v. Linden, 113 K Y. 28, rev'g 44 Hun, 518. Note 1. — Except as to the state, the alien brother and sister could take the real estate as such. (Laws 1875, ch. 88.) Note 3. — If a sale is necessary, the residue of the proceeds of the land will belong to the heirs. If unnecessary for any purpose directed by the will, they are entitled to it in its present form, and a sale against their objection should not be decreed. They have a right to that, and "the notional conversion" will subsist only until the cestui que tnist, who is competent to elect, intimates his intention to take the prop- erty in its original character. (Seeley v. Jago, 1 P. Wms. 389.) The necessity of a conversion of realty into personalty, to accomplish the purposes expressed in a will, is equivalent to an imperative direc- tion to convert, and effects an equitable conversion. Asche v. Asche, 113 K Y. 232, 233. Citing, Hobson v. Hale, 95 N. Y. 588 ; Chamberlain v. Taylor, 105 id. 185. In proceedings to compel a purchaser at a partition sale to complete his purchase, it appeared that R formerly owned an undivided seven- tenths of the land in question ; he conveyed two-tenths, and thereafter executed a deed which purported to convey his remaining interest, and IV. PURPOSES FOB WHICH POWEKS MAY BE CBEATED, 937 IV. POWER OF SALE. 1. EQUITABLE CONYEKSION. under this deed the parties claimed title to one-half. It appeared, how- ever, that the intent was to convey but two-tenths. Oonstruction : As the deed was liable to be reformed as against all the parties, it was to be assumed that the reformation might occur, and, therefore, in this respect the title was defectiva Same case: The will of R, after giving certain specific legacies, gave to his ex- ecutors his residuary estate in trust, with power to receive the rents and profits, sell and convey the property, invest both the rents and profits and proceeds of sale " and to divide and apply the same and income thereof" as directed, i. e., to apply the income of two-sixths of " said residue and remainder " to the use of his wife for life, with remainder over to his children, and to apply the income of one-sixth to each of his four children during life, with remainder over to the issue of such child, and with authority to advance to each child a specified sum out of the principal, if the executor should deem best In the gift of the legacies the testator used the words " give and bequeath ," in those of the residuary estate the words were " devise and bequeatL " Construction : The final and ultimate division did not require a conversion of the land into money, nor was such a conversion required as respects the in- termediate income ; therefore, the remaindermen took a vested interest in the lands ; and the interests of the grandchildren were not cut off by a foreclosure suit, to which they were not made parties. Where only a power of sale is given to executors by a will, without explicit and imperative direction for its exercise, and the intention of the testator can be carried out although no conversion is adjudged, the land will pass as such and not be changed into personalty. In the ab- sence of an express direction to sell one may not be implied unless the design and purpose of the testator is unequivocal and the implication so stronw as to leave no substantial doubt; and so, unless the exercise of the power is rendered necessary and essential by the scope of the will, the authority is simply discretionary and does not work a conversion. Mut. Life Ins. Co. v. Wood, 51 Hun, 640, distinguished. Same will: Where tlie mortt^age which was foreclosed was assigned to S., the 118 938 POWEB& IV. POWER OF SALE. 1. EQUITABia! CONVERSION. plaintiff in the foreclosure suit, R. guaranteed the payment of one-half thereof. After R's death S. presented a claina to his executrix, who alone qualified and acted, for one-half, which was disputed. S. then began the foreclosure ; the executrix was made a defendant and an- swered. Pursuant to an arrangement between her and S. she withdrew her answer and executed a deed to S. of R.'s entire interest. S. in re- turn withdrew his claim against the estate, and on the foreclosure sale bid in the property for the full amount of the mortgage. Construction : The deed was not a good execution of the power of sale and was in- valid, as there was no sale such as the will contemplated, but an appro- priation of the land to pay a debt, chargeable primarily upon the per- sonal property, without an order of the surrogate, or proof that the per- sonalty was insufficient to pay debts; and so, the surrogate was power- less to appropriate the land to the payment of debts except in the statu- tory method.' The title proffered was defective and the purchaser was not bound to complete his purchase. Scholle v. /Scholle, 113 N". Y. 261, aff'g 23 X &S. 474. Note. — "There Is in the will no imperative direction for the sale of the real estate. Indeed, there is no direction to sell at all. A power or authority to sell is given, but unless the exercise of that power is rendered necessary and essential by the scope of the will and its declared purposes, the authority is to be deemed discretionary, to bo exercised or not, as the judgment of the executrix may dictate, and so an equitable conversion will not be decreed. (White v. Howard, 46 N. Y. 163.) To justify such a conversion there must be a positive direction to convert which, although not ex- pressed, may be implied; but in the latter case, only when the design and purpose of the testator is unequivocal and the implication so strong as to leave no substantial doubt. (Hobson v. Hale, 95 N. Y. 598.) Where, however, only a powei of sale is given without explicit and imperative direction for its exercise and the intention of the testator in the disposition of his estate can be carried out, although no conversion is adjudged, the land will pass as such and not be changed into personalty. Cham- berlain V. Taylor, 105 N. Y. 194." When rents and profits of land imperatively directed to be converted into personalty fall into the residue. Oruilcshank v. Home for the Friend- less, 113 ISr. Y. 337, digested p. 457. Note. — " Nor does it help the situation to say that there was an equitable conver- sion resulting from the power of sale which, though discretionary, was claimed to be essential to the scope and plan of the will; and that the property treated as personal •Allen V. DeWitt. 3 N. Y. 376; Briggs v. Davis, 20 Id. 15; Roome v. Philips, 37 id. 857; Russell v. Russell, 86 id. 581. IV. PURPOSES FOR WHICH POWERS MAY BE CREATED. IV. POWER OF SALE. 1. EQUITABLE CONVEKSION. Was not within the statute regulating trusts, as was held in Oilman v. McArdle (99 N. Y. 451). That doctrine does not reach or affect the prohibition of the statute against a suspension of the absolute ownership of personal property for more than two lives; and a power of sale does not avoid the statute when the resultant proceeds wear the same fetters as restrained the alienation of the land." See 2 R. S. 57, sec. 5. The will of 0. contained a direction to the executrix to sell the tes- tator's real estate within five years of his decease for the purpose of paying debts and legacies. By a subsequent clause she was authorized to sell in lots or parcels, or altogether, in her discretion. The rents and profits of the land were given to her in her individual right so long as it remained unsold. There was no equitable conversion by the will of the land into personalty at the death, as plaintiff was entitled to possession and the rents and profits until a sale. Ogshury v. Ogsbury, 115 IST. Y. 290, 294. A gift to an executor in trust with power of direction to sell and dis- tribute as specified constitutes an equitable conversion of the realty into personalty. Greenland v. Waddell, 116 N. Y. 234, digested p. 457. A discretionary power of sale of real estate given to executors for the benefit of devisees, with a direction to apply the proceeds to their use, may not be converted into a power of sale to pay debts ; the doctrine of equitable conversion is not applicable to such a case. Nor where a sale is made under such a power does the provision of the Code of Civil Procedure (sec. 2724, sub. 4), giving to surrogates jurisdiction to compel a judicial settlement of the accounts of an execu- tor where he " has sold or otherwise disposed of any of the decedent's real property * * * pursuant to a power contained in the dece- dent's will," authorize an accounting and disposition of the proceeds as personalty. No power is given to divert the trust fund from the pur- pose of its creation and the directions of the will. The will of S., after devising his real estate in specific parcels, giving life estates in each parcel to various devisees and the remainder to others, gave to his executors a power to sell any of the parcels devised, with certain exceptions, the proceeds to " be invested and the income and principal applied * * * for the use and benefit of the same persons to whom the said lands and the income therefrom respectively were specifically devised and bequeathed. The personal estate paid all the debts of the testator except one owing to B. The executors sold portions of the real estate, and on settlement of their accounts, the sur- rogate ordered the debt of B. to be paid out of the unexpended proceeds of the real estate so sold. 940 POWERS. IV. POWER OF SALE. 1. EQUITABLE CONVERSION. Construction : Error ; the proceeds never became legal assets, but equitably remained lands and were to be accounted for only as required by the will, until some proceeding paramount thereto called for an accounting under its authority and for its purposes. Matter of Mc Comb, 117 N. Y. 378. Distinguishing, Glacius v. Fogel, 88 N. Y. 444; Hood v. Hood, 85 id. 561; Erwin V. Loper, 43 id. 531; Kinnier v. Kogers, 42 id. 531; Russell v. Russell, 36 id. 581. Invalidity of gift of land, directed to be converted into personalty, attaches to the proceeds on such sale. Haynes v. Sherman, 117 N. Y. 433, digested p." 460. Where a will expressly confers power upon the executor to convert real estate into money, and it is evident that the testator contemplated that it must be done for the purpose of carrying the will into efiEect, and it appears that in no other way can the intent of the testator be effectuated, the realty will be deemed to have been converted into personalty.' McN. died leaving a will disposing of both real and personal estate ; the latter- was insufficient at the time the will was executed and at the time of the testator's death, to pay his debts, the expenses of adminis- tration and the legacies given. The will gave to his widow the use of the testator's house and lot during life ; it gave to the executors a sum to be held in trust for her benefit during her life, and they were author- ized to sell the house and lot as soon as convenient, but within three years after the death of the life tenant ; it also authorized them to sell his other real estate within three years after his death, and, until such sale, empowered them to take charge of it and its avails, and the bal- ance of his personal property which remained after payment of debts, expenses and legacies, and to divide the residue of his estate between certain beneficiaries, as provided. Construction : A conversion of realty into personalty being necessary to carry out the testator's purpose, it must be held to have been his intention that such a conversion should take place ; and, therefore, the realty should be ^considered as personalty, to be disposed of in accordance with the terms of the will. (Scholle v. Seholle, 113 K Y. 261, distinguished.) Fraser v. Trustees, etc., of the United Presbyterian Ghurch, 124 N. Y. 479, aff'g 48 Hun, 30. 'Hood V. Hood, 85 N. Y. 561; Lent v. Howard, 89 id. 169; Moncrief v. Ross, 50 id. 431; Fisher v. Banta, 66 id. 468; Clift v. Moses, 116 id. 144. rV. PURPOSES FOR WHICH POWERS MAY BE CREATED. 941 IV. POWER OF SALE. 1. EQUITABLE CONTEKSION. A power of sale in a will, however peremptory in form, if it can be seen that it was inserted in aid of a particular purpose of the testator, or to accomplish his general scheme of distribution, does not, ipso facto, operate as a conversion where the scheme or purpose fails by reason of illegality, lapse or other cause. Head v. Williams, 125 N. Y. 560. Conversion of realty into personalty under a power to executors to sell property and convert it into money and make distribution ; on fail- ure to exercise the power the persons entitled to the land would take it as heirs. Matter of Bingham, 127 K Y. 296, digested p. 766. When a testator authorizes his executors to sell and convert into money all or a part of his realty for a specific purpose, which fails, oris accomplished without a conversion, the power is extinguished, and the land can not be sold by virtue of it or treated as money, but it descends to the heir unless it is devised. Sweeney v. Warren, 127 N". Y. 426, 431. Citing, Wood v. Keyes, 8 Paige, 365; McCarty v. Terry, 7 Lans. 236 ; Jackson v. JanseD, 6 Johns. 73; Sharpsteen v. Tillou, 3 Cow. 651; Bogert v. Hertell, 4 Hill, 492; Hetzel V. Barber, 69 N. Y. 1 ; Read v. Williams, 125 id. 560 ; Hill v. Cook, 1 Ves. <& B. 175 ; Chitty v. Parker, 3 Ves. 271; Taylor v. Taylor, 3 DeG., M. & G. 190; Leigh & D. Conv. 93; Lewin on Trusts (8th ed.), 149, 958. Where executors are clothed with the power and it is made their im- perative duty to sell a testator's real estate and distribute the proceeds in a manner provided by the will, the real estate will be deemed con- verted into personalty." Where the time of sale is not necessarily postponed to a specified future time, or until the happening of a designated event, the conversion takes place at the testator's death, the distributees taking their interests as money, not land.' The will of C, as modified by a codicil thereto, after certain specified bequests, directed that his executrices should take possession of the re- siduary estate, real and personal, and convert the real estate into money at such time as they might deem proper, during a period not exceed- ing ten years after the death of the testator's widow ; that during the lifetime of the widow and until the real estate should be sold, the execu- trices, two daughters of the testator, should collect the income of the estate and apply the same to the use of the widow and to their own use or the survivor of them, and after her death, if the real estate was not ' Everitt v. Everitt, 29 N. T. 39; Power v. Cassidy, 79 id. 603. « Pomeroy's Eq. Juris, vol. 3, sec. 1163; Fisher v. Banta, 66 N. T. 468; Moncrief v. Ross, 50 id. 431; Robert v. Corning, 89 id. 335-239. 942 POWERS. IV. POWER OF SALE. 1. EQUITABLE CONVEKSION. then sold, to their own use or the survivor of them until such gale ; that immediately thereafter the estate should be divided into four equal shares, one of which each of the executrioes should receive personally, the remaining two shares to be retained by them in trust, the income of one share to be paid to U. during her life, at her death the principal to go to her heirs, the income of the other share to be paid to B. during her life, at her death the principal to go to her heirs. Action brought by U. and B. who were also daughters of the- testator, to procure the partition of the real estate of which 0. died seized, or in lieu thereof to obtain a construction of the will and codicil. Construction : The real estate was on the death of the testator converted into per- sonalty, the legal title to which was vested in the execu trices in trust; during the continuance of the trust the absolute ownership was sus- pended ; as the trust attempted to be created for the benefit of the testa- tor's daughters was not limited by lives in being, but upon the life of the widow and an indefinite period thereafter, which might be of ten years' duration, it was violative of the statute of perpetuities, and so, void. But, as the trust created for the life of the widow was separable from the others, their invalidity did not affect it, and the trust for her benefit should be permitted to stand ; and except as to the estate created for her life, the testator died intestate. As the real estate was converted into personalty and was vested in the trustees during the life of the widow, and until her death a division of the property could not be claimed, the action of partition could not be maintained. Considering the property as personalty, as complete relief could in due time be had in surrogate's court, the court was authorized on that ground in the exercise of its discretion to refuse to entertain the action as one for the construction of the will, and so. a demurrer to the complaint was properly sustained. Underwood v. Curtis, 127 N. Y. 523. Distinguishing, Savage v. Burnham, 17 N. Y. 561; Moncrief v. Ross, 50 id. 431; Robert v. Corning, 89 id. 335; Manice v. Manice, 43 id. 303. Note 1. " Respondent cites Chipman v. Montgomery (63 N. Y. 231) as an authority for the assertion that the plaintiffs can not maintain an action to construe the will be- cause they claim in hostility to it asserting its invalidity. "As testator's estate became personalty at the time of his death, Chipman's case may not be applicable to the situation presented, for courts of equity will often take juris- diction to construe a will involving the disposition of personalty, where they would refuse if a judicial construction was sought for the mere purpose of determining title IV. PUEPOSES FOR WHICH POWERS MAY BE CREATED. 943 IV. POWER OF SALE. 1. EQUITABLE CONTEBSION. to real estate. (Wager v. Wager, 89 N. T. 161.) The reason for it is found in the fact that an executor is regarded as a trustee of the personalty which he holds in trust for the legatees or beneficiaries, so far as it is disposed of by will and as to the residue for those entitled to it under the statute of distributions. (Bowers v. Smith, 10 Paige, 193.) And courts of equity have ever regarded the supervision of trusts and trustees as peculiarly objects of equitable cognizance." (543.) It seems that where, upon foreclosure of a mortgage belonging to the estate of a decedent, the mortgaged premises are bought in by the per- sonal representatives, they take on the character of the mortgage in- debtedness, and so are as personalty in his hands, which he may dis- pose of, and for which he is liable to account as such ; and this is so although the decedent left a will which confers no power upon his ex- ecutors to sell real estate. The heirs of the decedent, therefore, or his residuary devisees, take no direct interest therein, and it is not essential, in order to convey a good title, for them to join in a conveyance of the premises. Raherman V. Baker, 128 N. Y. 253. The fiction of equitable conversion is adopted only when it is a needed element to determine ownership, and will not be resorted to where the same right devolves upon the same persons, whether the property be treated as money or land, and wher^ no rights of third persons are af- fected. Matter of Tienken, 131 N. Y. 391, digested p. 714. Devise of proceeds of realty to trustees to found, endow and maintain a charitable institution for sick and infirm persons and for relief of sucb persons outside of such Institution in Scotland, worked a conver- sion and was valid. Hope v. Brewer, 136 K Y. 126, digested p. 865. In 1888 0., as committee of P., a lunatic, commenced an action against an elevated railroad company to restrain it from operating its road upon a street in front of real estate belonging to P. Judgment was rendered therein granting the relief sought, unless the company should tender the committee $4,000, and receive a deed of release of the easements in the street. An order of the court having been obtained on application of 0., authorizing him to execute the conveyance, he did so, and received the money. Thereafter P. died intestate, unmarried and leaving no descendants. Action was brought by the administra- tors of the estate of P. to determine as between the heirs at law and next of kin who were entitled to the money. Construction : The money retained the cbaracter of real estate, and so the heirs were entitled thereto. (Code Civ. Pro., sec. 2359.) 944 POWERS. r "- IV. POWER OF SALE, 1. EQUITABLE CONVERSION. Swme case: Plaintiffs claimed that the proceedings instituted by the committee for the sale were invalid. Construction : The plaintiffs were not in a position to raise the question ; as the heirs, who were only interested, made no objection but claimed the proceeds, and thereby ratified the sale, and upon acceptance of the pro- ceeds would be estopped from denying its validity ; and in any event plaintiffs had no interest in the fund, or right to interfere Ford v. Livingston, 140 N. Y. 162, aff'g 70 Hun, 128. Where there was a direction to sell for purposes of division there was no conversion. Miller v. Gilbert, 144 N. Y. 68, digested p. 304. As a general rule the owner of real estate, from the time of the exe- cution by him of a valid contract for the sale thereof, is to be treated as the owner of the purchase money and the vendee as equitable owner of the land. Provisions in such contract making performance on the part of the vendee of his contract to pay a portion of the purchase money and to secure the balance by mortgage on the premises a condition precedent to a conveyance by the vendor do not take the case out of the general rule. It seems, that after a default in the performance of these conditions precedent the rule may not apply. But prior to a default on the part of the vendee, even where, by the contract, time is of the essence thereof, there is an equitable conversion within said rule, subject to be converted upon the default happening. Contract for sale of land was made by vendor, who died thereafter and before time for performance ; his executors extended the time for per- formance for some two and one-half months, when it was duly had. Construction : There was an equitable conversion of the real estate into personalty at the time of the execution of the contract, and there was no default ; the executors, acting in good faith, had the right, prior to default, to extend the time of performance ; and, therefore, the next of kin took the avails as personal property to the exclusion of those who were only heirs at law. Williams v. Haddock, 145 N. Y. 144, aff'g 78 Hun, 429. Distinguishing Bostwick v. Frankfield, 74 N. Y. 215 ; Harvey v. Aston, 1 Atk. 361 ; Atty-Gen. v. Day, 1 Ves. 8r. 218 ; Scot v. Tyler, 2 Brown's Ch. 431 ; Wells v. Smith, 2 Edw. Ch. 78 ; Teneick v. Flagg, 29 N. J. Law, 25. • IV. PURPOSES FOR WHICH POWERS MAY BE CREATED. 945 lY. POWER OF SALE. 1. EQUITABLE CONVERSION. Note. — " If the vendor die prior to the completion of the bargain, provided there have been no default, the heir of the vendor may be compelled to convey and the pro- ceeds of the land will go to the executors as personal property. (Story's Eq Jur. sees. 790, 791, 1212 ; Sug. on Vend. (8th Am. ed.) pp. 270, 373, ch. 5 ; Baden v. Pembroke, 2 Vera. Ch. 213; Fletcher v. Ashbvimer, 1 Browns Ch. 497; Eaton v. Sanxter, 6 Si- mons, 517 ; Farrar v. Earl of Wintertou, 5 Beav. 1 ; Livingston v. Newkirk, 8 Johns, Ch. 312 ; Champion v. Brown, 6 id. 398 ; Craig v. Leslie, 3 Wheat. 563. "The learned counsel for the infant defendant does not deny the existence of the general rule above stated, but he says this equitable conversion is not invariable and that it can not apply when the intention of the parties is clearly adverse to such a result. (Citing the case of Bostwiek v. Frank Beld, 74 N. Y. 215.) It may be as- sumed that the rule does not obtain under circumstances which show clearly that the parties never intended that it should, but in this case we think no such exception to the rule can properly be deduced from the contract itself." (150-1.) By the will of B. the executors were empowered to sell any and all of his real estate when in their judgment they might deem it for the best interests of the estate. The executors sold the real estate : they paid, in discharge of the testator's debts a sum in excess of that real- ized from the personalty. In proceedings for a final accounting by the executors, held, that before distributing the proceeds of the sale among tlie residuary devisees, they were entitled to reimburse themselves therefrom for the sum so paid in excess of the personalty, and were en- titled to a credit for that sum, and this, without regard to the question as to whether the power of sale was giv-en for the purpose of paying debts. Matter of Bolton, 146 N. Y. 257. From opiuion — "The learned general term, reversing the surrogate, was of the opinion that it should be treated as a power of sale for the purpose of paying debts, upon the doctrine of the Gantert case (136 N. Y. 109). If it was necessary to estab- lish that proposition there would be great difficulty in sustaining the judgment. But we think it is not material to determine the character of the power. "It was certainly a general power, and conferred authority upon the executors to convey the land and receive the proceeds. That power has been actually executed. They have conveyed the land, have received the purchase price, and the same is in their hands. There is no other way in which creditors can now reach the land except by proceedings for an accounting. The realty has in fact been con- verted into personalty, and is in the hands of the executors for all purposes of administration. Before distributing this fund to the residuary devisees they may pay the balance of the testator's debts, or what is the same thing, reimburse them- selves for the debts they have paid in excess of the personal estate that came to their hands Erwin v. Loper, 43 N. Y. 521; Hood v. Hood, 85 id. 561; Glacius v. Fogel, 88 id. 434; Matter of Powers, 124 id. 361; Matter of Gantert, 136 id. 109; Cahill V. Russell, 140 id. 403." When the proceeds of the sale of real estate in partition will be considered as realty. Distinction between effect of sale under will and sale in partition. In Matter of Thomas, 1 Hun, 473. 119 946 POWER& IV. POWER OF SALE. 1. EQUITABLE CONVERSION. Rule of equitable conversion operates only from the time conversion is directed to take place. Boss v. Roberts, 2 Huu, 90, aff'd 63 N. Y. 652. Realty will be regarded as personalty from the time it is directed to be converted. Shumway v. Harmon, 4 Hun, 411. Conversion of real into personal estate is not rendered less imperative from the fact that discretion was given to executors as to the manner and terms of sale. Qraliam V. Livingston, 7 Hun, 11. When an equitable conversion of real estate into personalty is authorized by law and the money paid into court. Denham v. Cornell, 7 Hun, 662. The will of A. directed a sale of his real estate by his executor, and the investment of one-half of the proceeds thereof "in mortgage or in mortgages on real estate," and that after the education and support that were to be given to Norman "the principal sum and any interest " * * * sliall he paid to him. The conversion was complete without any election on the part of the infant. Hill v. Nye, 17 Hun, 457, 459. Citing Stagg v. Jackson, 1 Comst. 306; Horton v. McCoy, 47 N. Y. 21. When equitable conversion of realty takes place; when the intention of the testator is to regard the land as personalty it will be distributed as such. Matter of Mohan, 32 Hun, 73, aff'd 98 N. Y. 373. Conversion of real estate into personal property — when not absolute but only par- tial. Matter of Dodge, 40 Hun, 443. Bevise to a wife, while unmarried, of a right to use and occupy a house— a sale made by an executor with her consent vests a good title in the purchaser — she has the same interest in the proceeds as in the land — the executor can not contract witli the widow for a release of her interest in the fund — the statute of limitation does not run against a claim made by her to recover the net income of the fund. Post v. Benchley, 48 Hun, 83, appeal dismissed, 110 N. Y. 665. The sale of an infant's real estate does not change the character of the infant's in- terest in the proceeds thereof which retains the character of realty — 3 R. S. 195, sees. 175, 180. WdU V. aeeley, 47 Hun, 109. There is no equitable conversion of real estate into personalty where it is not the duty of the executors to sell and convert. Fraser v. McNaughton, 58 Hun, 30. Where there is an authority to executor to sell, but no necessity arising under the will for the exercise thereof, there is no conversion of realty into personalty. Matter of Oiark, 63 Hun, 375, 283. Where an equitable conversion of realty into personalty takes place so far as executors are concerned. Wood v. Nesbitt, 62 Hun, 445. Discretionary power to sell does not create an equitable conversion. A failure to re- invest the proceeds of sale of realty does not change its nature. Butler v. Qreen 65 Hun, 99. Where a power of sale will not work a conversion of land into money. Mellen v. Banning, 78 Hun, 176. Testamentary conversion of realty into personalty, for the purpose of the will the portion undisposed of passes as realty, to the heir. Matter of Wangner, 74 Hun 353. Real estate converted into personal property — what is required to reconvert the same— land bought by executors on a foreclosure sale. Yonkers Savings Bank v. Mnsley,78 Hun, 186. If testator do not require executors to sell but only permit them so to do there is no equitable conversion of real estate into personalty. Palmer v. Ma/rshall, 81 Hun 15. IV. PURPOSES FOE WHICH POWERS MAY BE CREATED. 947 IV. POWER OF SALE. 1. EQUITABLE CONVERSION. Equitable conversion — substitution of money for stocks does not alter rights of parties. Trustees People v. Am. Loan & Trust Co., 3 App. Div. 193. Equitable conversion — no absolute direction to sell, the power being discretionary — sale not to be made till expiration of five years. Trowbridge v. Metcalf, 5 App. Div, 318, digested p. 480. lu determining whether tliere is an equitable conversion of realty under a will, it is the intent that governs and not the practical convenience or expedience of treating the decedent's estate in one form rather than another. The mere fact that the assets, as shown by the inventory, are insufficient to pay all the legacies and trusts provided for in the will, and that a naked power of sale is given to the executors, is not sufficient to show an intent to create an equitable con- version, where a large portion of such legacies have lapsed and it appears that there has been a great depreciation in the value of the securities. Even if the will works an equitable conversion, such conversion does not take place until after the death of the testator, and such realty is not taxable under the transfer act in a case where the realty as such is exempt under section 3 of the act. Matter of Cobb, 14 Misc. 409 (Sur. Ct.) ; citing, Briggs v. Carroll, 117 N. Y. 388 ; "White v. Howard, 46 id. 144, 163; Hobson v. Hale, 95 id. 588, 605; Moncrief v. Ross, 50 id. 431 ; McDonald v. O'Hare, 144 id. 566; Dodge v. Pond, 33 id. 69; Power v. Cassidy, 79 id. 603 ; Lent v. Howard, 89 id. 169 ; Delafleld v. Barlow, 107 id. 535 ; distinguishing, McOorn v. McCorn, 100 id. 511. When real estate becomes personalty as of the time of testator's death. Matter of Bennett, 16 Misc. 199. Where a will directs the real estate to be converted into personal property and gives the same to certain persons for life, with limitations over to others, it must be governed by the rules applicable to limitations of personal property. Burrill v. 8heil, 3 Barb. 457, A stipulation in an antenuptial contract executed in France, that in case of the death of the wife without leaving children her surviving, the real estate of which she should die possessed in the United States should be immediately sold and the pro- ceeds remitted to her husband, operated as a grant to husband, contingent upon the death of the wife, to which effect was to be given upon the principle of equitable conversion. DeBarante v. Oott, 6 Barb. 493. To cause a conversion of real estate into personalty, the will should decisively and distinctly fix upon the land the quality of money. Fowler y. Depau, 36 Barb. 334. The proceeds of land directed to be sold by order of the court vested in C. as heir at law not as personalty but as realty, the fund continuing to be real estate of the same nature as the property sold. Valentine v. Wetherill, 31 Barb. 655. A testator, by will, directed his executors to sell all his real estate and with the proceeds to pay legacies. Held, that thereby the whole estate became equitably con- vened into money, subject to the appropriation in accord with the directions of the will. Belts V. Belts, 4 Abb. N. C. 317. The equitable conversion of real into personal property was held not to operate until the time when the conversion was directed to take place, which was six years from the death of the testator. Oano v. McOann, 56 How. Pr. 337. To establish a conversion, the will must direct a sale absolutely, or out and out ; for all the purposes, not merely those of the devise ; irrespective of contingencies, and independent of all discretion. If the sale is to be made for the purposes of the 94b POWERS. IV. POWER OF SALE. 1. EQUITABLE CONVERSIOlf. •will, and those fail, there is no conversion. Wright v. Meth. Epis. Church, 1 Hoflf- man's Ch. 201. Where land is taken in payment of a debt due to an alien, and is conveyed to a trustee upon a valid trust to sell the same and convert it into personal estate, without any unreasonable delay, for the benefit of the cestui que trust, a court of equity, upon the principles of equitable conversion, will consider the land as personal estate belong- ing to the iilien, and transmissible to his personal representatives as such; and if nec- essary will compel- the trustee, who holds the legal estate, to sell the land and convert it into money. If an agent for the collection of a debt due to an alien, takes a conveyance of land in his own name in payment of such debt, without authority from his principal, and without any written declaration of trust, a court of equity will not permit a resulting trust to be created in favor of the state by escheat ; but v/ill decree the land to be sold and converted into money, for the purpose of giving the alien the benefit thereof as personal estate. Anstice v. Brown, 6 Paige, 448. Where the testator made his will and died previous to the adoption of the Revised Statutes, leaving a widow, and a married daughter, who was his only child and heir at law ; and by his will directed that his executors should sell all his real and per- sonal estate and put out the proceeds thereof at interest upon landed security, and should pay such interest to his widow for life, for her support, and a part of the principal of the fund also if it should be necessary for that purpose ; and tiiat imme- diately after her decease all the moneys then remaining should continue at interest, and that the interest thereof should be appropriated to the support of his daughter, in case she should be left a widow, and from that time for and during her natural life or until she should again marry; and that if the interest should not be sufficient for her support, she should then have so much of the principal of the fund annually as the executors should deem sulBcient ; and that immediately after the death or remar- riage of his daughter, all the moneys then due and remaining should be paid to her children or the legal heirs of her body, as they should respectively become of age. Upon the principles of equitable conversion, the proceeds of real estate directed by the testator to be sild, are only considered as converted into personalty for the pur- poses of the will. And if any estate or interest in the fund arising from the sale is not legally and effectually disposed of by the will, there is a resulting trust, as to such estate or interest, in favor of the heir at law. Wood v. Cone, 7 Paige, 471. Where it is necessary to carry into effect the intention of the testator, under a power in trust to convert real estate into personalty or personal estate into realty so as to produce no injustice between the different objects of his bounty, equity con- siders the conversion as having been made at the death of the testator or at least within one year thereafter. A testator having by his will bequeathed to each of his three datighters who should marry, an outfit, of a specified value, two of the daughters subsequently married dur- ing the life of their father, who died a short time thereafter, without having given to either of them any marriage portion. Each was entitled to her outfit, under the will, in the same manner as she would havebeen If she had married after the testator's death. Van Vechten v. Van Veghten, 8 Paige, 104; aff'd 1 Sandf. Ch. 395. Real estate is con^dered in equity as converted into personalty when necessary to execute the will. JBaxtun v. Corse, 2 Bhrh. Ch. f^Oe ' But this principle of equitable retainer does not apply to a fund arising from the IV. PUEPOSES FOR WHICH POWERS MAY BE CREATED. 949 IV. POWER OP SALE. 1. EQUITABLE CONVERSION. sale of real estate which descended to the debtor as one of the heirs at law of the tes- tator; and wuich real estate has been converted into personalty by accident, or be- cause the valid portions of the will could not be carried into effect in any other way than by a sale of the land. The proceeds of real estate, thus converted into personalty, are still to be considered as real estate, and as in no way connected with the funds which come to the hands of the executor for the purposes of the will. Where a power in trust, to an executor to sell the real estate of the testator, upon th^ death of the widow, for the benefit of legatees, is an imperative power, the estate is in equity to be considered as converted from the death of the widow; so as to give the legatees the same interest in the rents and profits, until the estate is actually sold, as they would have had in the interest of the proceeds of the sale if such sale had been made immediately upon the death of the widow. Smith v. Kearney, 3 Barb. Ch. 533. Where there may be a substitution of proceeds for land sold. Smith v. Post, 2 Edw. Ch. 538. A devisor may give to his devisee either land or the price of land, at his pleasure; and the devisee must receive it in the quality in which it is given, and can not inter- cept the purpose of the devisor. If it be the purpose to give land to the devisee, the land will descend to his heir, and if it be the purpose of the devisor to give the price of land to the devisee, it will, like other's money, be part of his personal estate. If one of several devisees dies in the lifetime of the devisor, and the heir of the de- visee stands in his place, the purpose of a sale, for the convenience of a division, still remains, and the sliare of the one dying will pass as money and not as land. But, in the event of all the devisees dying in the lifetime of the devisor, the purpose of a sale for the sake of a division, may no longer be applicable, and the heirs all take the whole interest as land. Marsh v. Wlieeler, 2 Edw. Ch. 156. When a provision for the widow of the testator will be regarded as a trust of the real estate at the death of the testator and not to be deemed as converted into person- alty, see Arnold v. Gilbert, 3 Sandf. Ch. 531. V. POWER TO MORTGAGE, LEASE OR PLEDGE. The power to sell and make leases is included in a power given to executors to sell and dispose of all and any part of the testator's estate. Leggett v. Perkins, 2 N. Y. 297 (318). See also Hedges v. Riker, 5 Johns. Ch. 163. Where there is a power to sell lands, a power to mortgage will not be implied. Whether a trustee appointed by a will, with power to sell and dispose of lands in fee .simple or otherwise may mortgage the lands, quaere. Albany Fire Ins. Co. v. Bay, 4 IST. Y. 9. Bee also Cumming v. Williamson, 1 Sandf. Ch. 17; Bloomer v. Waldron, 3 Hill, 361 ; Coutant V. Servoss, 3 Barb, 128 ; Arnoux v. Phyfe, 6 App. Div. 605. Power to mortgage was implied in a power to borrow. Wetmore'v. ■Holsman, 14 Abb. Pr. 311. 950 POWERS. V. POWEB TO MORTGAGE, LEASE OR PLEDGE. Power to lease carried power to collect rents. Morse v. AJorse, 85 N. Y. 53, digested p. 627. The will of S., after directing the payment of Ws debts and funeral expenses by his execatrix, gave his residuary estate to E., his wife, who was appointed his sole executrix, so long as she should remain his widow, and upon her death or remarriage to his children. E. was authorized to make such " advances " out of said residue to any or either of his children as she should "deem best for the maintenance and support of any such child or children,"' and the amount so advanced to be deducted from the share of the child for whose benefit it was made, upon final division. B. was appointed guardian of the minor children, and was empowered " to mortgage, lease, sell or dis- pose "of the property as she should deem best for the purpose of carrying into effect the provisions of the will. E. remarried, and thereafter executed a mortgage on certain real estate, part of the residu- ary estate, to secure a loan. In an action to foreclose the mortgage it appeared that at the time of the execution of the will the children referred to were all minors, and four of them were still under age ; that ever since the death of the testator E. had provided for their education and support, and all resided until after the execution of the mortgage upon the mortgaged premises. There had been no accounting or settlement by her as testamentary guardian and ao division of the estate. Construction : The power of E. to make advances, and to mortgage the property for that purpose, did not cease upon her remarriage, but there remained in her a general power in trust (1 R S. 732, sec. 77) the children tak- ing an absolute fee, subject to the execution of the power ; by the word "advances" was intended the sums expended for the maintenance and support of said children ; and, in the absence of evidence that the money loaned for which the mortgage was given was not needed and was not used for the maintenance and support of the children, the mortgage was valid. It seems that had the money been loaned for other purposes, with knowledge on the part of the mortgagee, this would have been a good defense to the action. Mutual Life Insurance Company v. Shipman, 108 N. Y. 19. Citing, Kianier v. Rogers, 42 N. Y. 531. Power to lease — gave no power to sell. Roe v. Vingut, 117 N. Y. 204. ' . IV. PURPOSES FOR WHICH POWERS MAY BE CREATED. 951 V. POWER TO MORTGAGE, LEASE OR PLEDGE. The will of M. gave to A., her husband, the use of income and profits of all her estate during life, with power, at his pleasure, to sell any of the personal estate, to receive the proceeds and appropriate the same to his own use. M. owned, at the time of her death, certain bonds which A. tliereafter pledged to defendant to secure a loan. When the loan became due A., not being able to pay, stated that fact to defendant, and proposed that it take the bonds for the loan, which proposition defendant accepted. No note or other written obligation had been given for the loan. Action to recover for the estate the pro- ceeds of the bond. Construction : • Conceding A. had no right under the will to pledge them, and, so, such pledge was void, he had the right to sell, and could sell, to his creditor and apply the proceeds to extinguish his debt ; and the trans- action was, in effect, such a sale. Brown v. Farmers^ Loan and Trust Company, 117 N. Y. 266, aff'g 51 Hun, 886. Power was given to executors to rent and pay one-third of income to the widow and out of remainder to pay all expenses. Starr v. Starr, 182 N. Y. 154, digested p. 144. S. died leaving a widow and brothers and sisters surviving, but no descendants ; by his will he gave all of his property to his wife " to have and to hold for her comfort and support * * if she need the same during her natural life." In a subsequent provision he gave to a church society $1,000 after the death of his wife, if there should be enough of the property left at that time. The widow remarried and executed to her husband a mortgage on the real estate of which S. died seized. She thereafter died. Action brought by the heirs at law of S. to have the mortgage de- clared fraudulent and void and to have it canceled of record as a cloud on plamtiff's title. Construction : The widow took under the will a life estate with power to take and convert to her own use so much of the corpus of the estate as she sliould need for her comfort and support (Rose v. Hatch, 125 N. Y. 428), in- stead of selling the land she had the right to mortgage for the purposes specified, and the presumption would be that the mortgage was exe- cuted for such purpose ; therefore, the mortgage was not void upon its face aad could be enforced by the mortgagee without the disclosure of extrinsic facts rendering it invalid, and the burden of showing these 952 POWERS. V. POWER TO MORTGAGE, LEASE OR PLEDGE. was upon those assailing it ; and so, tlie jurisdiction of a court of equity was properly invoked to cancel the apparent cloud upon the title Swarthout v. Ranier, 143 N. Y. 199, aff'g 67 Hun, 241. MoC. died leaving a widow and four children, who were minors, him surviving. By his will he gave to a son, the oldest child, one-fourth of all his r&siduary estate after payment of debts, and after deducting the widow's dower right, the same to be paid to him in cash on his becom- ing of aga The residue was given to the widow for life, the remainder to the three younger children. The widow was appointed executrix wilh power to sell or mortgage any part of the estate " for the purpose of carrying outthe provisions" of the will, or wheneverin her judgment it might be for the best ititerest of the estate, " applying the proceeds to the benefit of * * * said estata" The real estate was all incum- bered. The widow, acting under the power of sale, sold a lot to D. for $9,000, receiving $6,000 in cash and D.'s bond for the balance, secured by mortgage on the premises. The money was used in paying incum- brances on the real estate. Subsequently, under an arrangement between the widow and D., the latter deeded back the lot ; his mortgage thereon was canceled and the widow executed a mortgage thereon to secure a loan made to pay the son his share, he having come of age. To secure D. the $6,000 paid by him, the widow executed her bond and to secure it a mortgage, as executrix, on another lot, which recited the power in the will, and that the bond was executed by her, as executrix, under the power. This mortgage was foreclosed and the purchaser on fore- closure sale refused to complete the purchase, claiming the title to be defective, on the ground that the bond was not signed by the executrix in her official capacity. Construction : Untenable. The widow, as executrix and individually, and the three infant children were made parties to the foreclosure suit, and the latter appeared by guardian. The complaint set forth the power of sale and alleged that the mortgage was executed in pursuance of the power. Construction : The judgment was conclusive as against all the defendants in tbat action; the mortgage was executed under and pursuant to the power, and it was a valid lien. Roarty v. McDermoU, 146 K Y. 296. The will of Elizabeth J. Stanley conferred on her executor and trustee a power to sell the real estate devised, if deemed by him advisable so to do for the purpose of investment of the proceeds. It gave him no power IV. PURPOSES FOR WHICH POWERS MAY BE CREATED. 953. V. POWER TO MORTGAGE, LEASE OR PLEDGE. to sell the lands for the payment of debts, or for any other than the specified purpose. It conferred no power to mortgage, and it is not claimed nor could it be reasonably contended that the mortgage in question can be sustained as an exercise of the power of sale contained in the will. Losey v. Stanley, 147 K Y. 560, 568. Citing Albany Fire Ins. Co. v. Bay, 4 N. Y. 9; Bloomer v. Waldron, 3 Hill, 361; Rogers v. Rogers, 111 N. Y. 228. VI. POWER TO EXECUTORS TO COKTINUE TESTATOR'S BUSINESS. See ante, p. 778. The rule that a tfust, failing as such, because not authorized by stat- ute, may be valid as a power in trust, may have effect, although it gives the trustees the direction and management of a manufacturing establish- ment during the life of a beneficiary. If a part of the beneficiaries designated by the testator, can not take, by reason of which the heirs succeed to their portions of the estate, the heirs must take, subject to the power to manage the property and apply and divide the proceeds between the beneficiaries who can take and the heirs. Downing v. Marshall, 4 Abb. Ct. App. Deo. 662. The will of J. authorized his executors to continue his business for such time after his death as they should think advantageous to the es- tate, and directed as to the distribution of the profits. His residuary estate he gave to his executors in trust to collect rents and interest, and after paying therefrom necessary expenses and charges, to pay the " residue and net proceeds " to certain cestui que trust, during their lives. Construction ; Losses by bad debts, and the cost of personal property purchased to- replace similar articles worn out or used up in conducting the business by the executors ; also expenditures for ordinary repairs on the real es- tate used therefor, were properly charged against and deducted from the income payable to the life tenants; the language of the will autho- rized the deduction of all losses and expenses necessarily incurred in managing the estate and conducting the business, including ordinary expenses for repairs or improvements, and it was not necessary that the specific items so to be deducted should be stated in the will. It seems the same rule might not apply where a large and unusual expenditure has been incurred; as in the erection of additional build- ings. Matter of accounting of Jones, 103 N. Y. 621. The intention of a testator to confer on his executor power to con- 120 954 powEKS. VI. POWER TO EXECUTORS TO CONTINUE TESTATOR'S BUSINESS. tinue a trade or business will not be deemed to have been conferred un- less it is found in the direct, explicit and unequivocal language of the will' When the power simpliciter is conferred, it only authorizes the use of the fund invested in the business at the time of the testator's death ; the general assets may not be used unless such an intent on the part of the testator is expressed in the will." When such an intent docs not appear a creditor has no remedy ex- cept to pursue the assets embarked in the trade or business at the time of the death. A testator may, however, bind his general assets for all of the debts ; and where such an intent finds expression in his will, in case of the in- solvency of the executor, the general assets may be made liable in equity for the debts. Willis v. Sharp, 113 K Y. 586, aff'g 43 Hun, 434;'lloN. Y. 396. Note. — "By the general rule the death of a trader puts an end'to any trade in which ie was engaged at the time of his death, and an executor or administrator has no authority mrtute officii to continue it, except for the temporary purpose of converting the assets employed in the trade into money. (Barker v. Parker, 1 T. R. 387 ; 3 Wil- liams on Exrs. [7th ed.] 791.) But a testator may authorize or direct his executor to continue a trade or to employ his assets in trade or business, and such authority or di- rection, if strictly pursued, will protect the executor from responsibility to those claiming under the will, in case of loss happening without his fault or negligeuce, and also entitle him to indemnity out of the estate, for any liability lawfully incurred within scope of the power. (Burwell v. Cawood, 3 How. U. S. 560 ; Liable v. Ferry, 33 N. J. Eq. 791 ; Scott v. Izon, 34 Beav. 434 ; Lucas v. Williams, 39 Gif. 150.) The courts, while they have sustained with substantial unanimity the validity of a direc- tion of a testator in his will that his trade should be continued, whether his business was that of a sole trader or of a firm of which he was a member, have applied strin- gent rules of construction in ascertaining both the existence and extent of the author- ity of the executor." (589-90.) See, further, Goebel v. Wolf, 113 K. Y. 405 ; see Stewart v. Robinson, 115 id. 338 ; Bell v. Hepworth, 184 id. 443 ; C. W. Co. v. Hodenpyl, 135 id. 430 ; The Na- tional Bank of Newburgh v. Bigler, 83 id. 51 : Johnson v. Lawrence, 95 id. 154. 'Burwell v. Cawood, 3 How. U. S. 560; Kirkman v. Booth, 11 Beav. 373. ''Ex parte Garland, 10 Ves. 119; Cutbush v. Cutbush, 1 Beav. 184; ex parte Rich- ardson, 1 Buck. 303; M'Neillie v. Acton, 4 DeG., M. & G.'743. V. THE ESTATE OR INTEREST TAKEN BY THE GRANTEE OF THE POWER.' I. WHEN ESTATE FOR LIFE OR YEARS IS CHANGED INTO A FEE. Real Prop. L., sec. 129. — "When estate for life or years is cbanged into a fee. — Wbere an absolute power of disposition, not accompanied by a trust, is.jgiven to the owner of a particular estate for life or for years, such estate is changed into a fee absolute in respect to the rights of creditors, purchasers, and encumbrancers, but subject to any future estates limited thereon, in case the power of absolute disposition is not executed, and the property is not sold for the satisfaction of debts." 1 R. S. 733, sec. 81 (repealed by Real Prop. L,, sec, SOO), omitted the word " en- cumbrancers." Freeborn v. Wagner, 2 Abb. Ct. App. Dec. 175, dig. p. 94; Terry v. Wiggins, 47 N. Y. 512, dig. p. 95; Germond v. Jones, 2 Hill, 569, 574, dig, p. 103; American Bible Society v. Stark, 45 How. Pr. Rep. 166, dig p. 103. See, further, ante, pp. 105-6. II. CERTAIN POWERS CREATE A FEE. Real Prop. L., sea 130. — "Certain powers create a fee. — Where a like power of disposition is given to a person to whom no particular estate is limited, such person also takes a fee, subject to any future estates that may be limited thereon, but absolute in respect to creditors, purchasers and encumbrancers." 1 R. S. 732, sec. 83 (repealed by Real Prop. L., sec. 300) omitted the word "en- cumbrancers." Kinnier v. Rogers, 43 N. Y. 534, dig. p. 94; Germond v. Jones, 3 Hill, 569, 574, dig. p. 103. III. WHEN GRANTEE OF POWER HAS ABSOLUTE FEE. Real Prop. L., sec. 131. — "When grantee of power has absolute fee. — Where such a power of disposition is given, and no remainder is lim- ited on the estate of the grantee of the power, such grantee is entitled to an absolute fee." 1 R. S. 733, sec. 83 (repealed by Real Prop. L., sec. 300), was the same. Kinnier v. Rogers, 43 N. Y. 534, dig p 94; Germond v. Jones, 3 Hill, 569, 574, dig. p. 103; American Bible Society v. Stark, 45 How. Pr. 166, dig. p. 103. ' See Power of disposition by will, ante, p. B9i. (955) 956 POWERS. IV. EFFECT OP POWER TO DEVISE IN CERTAIN CASES. Eeal Prop. L., sec. 132.— "Effect of power to devise in certain cases.— Where a general and beneficial power to devise the inlieritanoe is given to a tenant for life, or for years, such tenant is deemed to possess an ab- solute power of disposition within the meaning of and subject to the provisions of the last three sections." 1 R. S. 733, sec. 84 (repealed by Real Prop. L., sec. 300), was the same. Freeborn v. Wagner, 2 Abb. Ct. App. Dec. 175, dig. p. 94; Livingston v. Murray. 68 N. Y. 485, dig. p. 97; Rose v. Hatcli, 135 id. 427, dig. p. 100; Hunie v. Randall, 141 id. 499, dig. p. 898; Deegan v. Wade, 144 id. 573, dig. p. 875; American Bible Society v. Stark, 45 How. Pr. 166, dig. p. 103. V. WHEN POWER OP DISPOSITION ABSOLUTE. Real Prop. L., sec. 133. — "When power of disposition absolute.— Every power of disposition by means of which the grantee is enabled, in his lifetime, to dispose of the entire fee for his own benefit is deemed absolute." 1 R. S. 733. sec. 85 (repealed by Real Prop. L., sec. 300), was the same. Rose V. Hatch, 135 N. Y. 437, dig. p. 100; Cutting v. Cutting, 86 id. 522, dig. p. 898, Bwarthout v. Ranier, 143 id. 499, dig. p. 953; Griswold v. Warner, 51 Hun, 13, dig. pp. 101-3; Germond v. Jones, 3 Hill, 569, 574, dig. p. 103. See cases cited under section 133. VI. POWER SUBJECT TO CONDITION. Real Prop. L., sec. 134. — " Power subject to condition. — A general and beneficial power may be created subject to a condition precedent or subsequent, and until the power become absolutely vested it is not sub- ject to any provision of the last four sections." Vernon v. Vernon, 53 N. Y. 351, dig. p. 95; Smith v. Van Ogtrand, 64 id. 278, dig. p. 96; Livingston v. Murray, 68 id. 485, dig. p. 97; Taggart v. Murray, 53 id. 333, dig. p. 116; Swarthout v. Ranier, 143 id. 499, dig. p. 953; see Qualified powers, post, p. 1009. An absolute power of disposition is defined by section one hundred and thirty-three. It exists when there is given to a person a power to dispose, in his lifetime, of the entire fee, for his own benefit. Such a power must be exercised by an instrument operative in the lifetime of the grantee of the power.' But section one hundred and thirty-two makes a general and bene- ficial power to devise the inheritance equivalent to an absolute power of disposition, when it is given to a tenant for life, or for years. Such "Cutting V. Cutting, 86 N. Y. 534; Calvin v. Young, 81 Hun, 116; Real Prop. L., sec. 148. V. ESTATE OR INTEREST TAKEN BY THE GRANTEE OF POWER. 957 NOTE TO SECTIONS 129-134. a tenant with such a power is brought within the terms of section one hundred and thirty-three and may dispose of the fee in his lifetime by grant. Hume v. Randall, 141 N. Y. 499 (digested p. 898). And this is so, although the instrument creating the power should prohibit dis- position during the lifetime of the grantee of the power.' The effect of this absolute power of disposition is to create a fee in the grantee of the power in the cases provided in sections one hundred and twenty-nine to one hundred and thirty-one. This happens, when the power is not accompanied by a trust, and when the grantee of the power has a particular estate for life or years (section one hundred and twenty-nine) or when he has not such a particular estate (one hundred and thirty). The reading of the two sections, however, shows this dis- tinction. Section one hundred and twenty-nine provides that the fee is subject to any future estates limited thereon, in case the power is not executed, and the property is not sold for the satisfaction of debts. This is equivalent to a statement that the future estates are created in terms dependent upon the non-exercise of the power, and the failure of the grantees' creditors to appropriate the property to the payment of his debts. Indeed to allow the application of the section, such future estates must necessarily be subject to the power of disposition ; other- wise the grantee of the power would be unable to convey the entire fee as required by section one hundred and thirty-three, or if he could transfer the fee of the land, yet if the future estate continued in the proceeds, superior to the power, then the power of disposition would not be exercised for his own benefit. Hence when a future estate is created, to which the power is in terms made subject, the requisite conditions of one hundred and twenty-nine are not met. The reading of one hundred and thirty is somewhat different. It provides that, wheo a like power of disposition is given to a person to whom no par- ticular estate is limited, such person shall also take a fee ; but that the fee shall be subject to any future estates limited thereon, but absolute in respect to creditors, purchasers and encumbrancers. It will be noticed that this section does not provide for future estates limited on the fee "in case the power of absolute disposition is not exercised," etc; as provided in section one hundred and twenty-nine. There the future estate is created subject to the fee flowing from the power ; here the fee is subject to the future estates, except as to creditors, etc. Neverthe- less the practical result is the same, and necessarily so. For the fee is absolute as to creditors, purchasers and encumbrancers. Hence if the ■Deegan v. Wade, 144 N. Y. 573 ; Hume v. Randall, mpiu. 958 POWERS. NOTE TO SECTIONS 129-134. power of disposition is exercised, that is, if the grantee of the power sells or encumbers his fee, or his creditors take it, the land is freed from the future estates. Hence such estates can only continue in the land in default of the execution of the power, or the non-action of creditors, precisely as is provided in section one hundred and twenty- nine. But it may be said that the future estate would attach to the proceeds of sale, and the interest of the grantee of the power would be subject to them. In that case the power of disposition would not be for the benefit of the grantee of the power, but for the owner of the future estate, to whom the grantee of the power would stand in the relation of a trustee,' and the power would not be absolute within the meaning of sec- tion one hundred and thirty-three. It seems impossible, then, to conceive of a case where these sections apply, when a future estate can exist, except in default of the execution of the power, or in default of the beneficial use even to absolute consumption of the proceeds of disposi- tion. A power can not be general, and beneficial, and at the same time in trust ; and if the owner of future estates have any constraint upon either the power of disposition, or the proceeds or benefits of the disposition, the power is not beneficial but is in trust (see sees. 116- 118). It is not to be supposed, however, that future estates can not be created under these sections to take in default of the exercise of the power, or for the enjoyment of what the grantee of the power, or his creditors, may see fit to leave undisposed of, or even to the subordi- nation of the rights of the grantee, but in the first two classes of cases the grantee of the power has a fee conditioned upon his use of the power, and in the last case the sections can not be invoked. Sections one hundred and twenty-nine to one hundred and thirty-three seem to ac- complish this ; where a power, unaccompanied by a trust, but general and beneficial, is given to a person, the owner, or to one not the owner of an estate for life or years, not given in trust, so that the grantee can dis- pose of it by grant, or by will, such person takes a fee, which he can sell or encumber, and the proceeds of wliich he can consume or dispose of ; and such a power is in harmony with future estates limited on the fee, to take effect in case the power is not exercised, or to take effect as to such portion of the property or the proceeds thereof, as the grantee or his creditors shall leave undisposed of. The sections seem to give some rights to the creditors superior to those conferred on the grantee of the power; but practically their rights are coincident, and, when the section applies the rights of both are in effect superior to those of future estates. 'Smith V. Van Ostrand, 64 N. Y. 278, dig., p. 111. V. ESTATE OR INTEREST TAKEN BY THE GRANTEE OF POWER. 959 NOTE TO SECTIONS 129-134. Under the various sections will befound illustrative decisions digested elsewhere, and below reference is made to digested cases, showing the course of decision on the various questions that have arisen, pertinent to the influence of powers upon the creation of estates, and on the question of the rights of persons to whom future estates are given in subjection, to, or in derogation of tlie power of disposition. While the authorities have not been entirely harmonious the general tendency has been to hold as follows : That an absolute beneficial power of disposition carries a fee." Cases have been construed to hold that the power of disposition was not intended to be absolute" and although it has been held that a power of absolute disposition for the benefit of the grantee of the power, carried a fee, and did not permit the limitation of futures estates thereon^ yet the general trend of the later decisions is that a future estate may be created, in case the power be not exercised, or to carry over such part of the property as the grantee of the power should not use or consume.'' General 'power of disposal. A general power to dispose of property includes the right to dispose of it by will to the exclusion of persons entitled to take any part that should remain or be undisposed of at death of the grantee of the power, unless the grant of the power contains words which expressly, or by fair implication, exclude disposition by will. Matter of Gardner, 140 N. Y. 133, dig. p. 107. An absolute power of disposition by grant does not give power to devise. Cutting V. Cutting, 86 N. Y. 534.; Calvin v. Young, 81 Hun, 116. See Real Prop. 'L., sec. 148. 'Freeborn v. Wagner, 3 Abb. Ct. of App. Dec. 175, dig. p. 94 ; Kinnier v. Rogers, 43 N. Y. 534, dig. p. 94 ; Campbell v. Beaumont, 91 id. 464, dig. p. 97 ; Van Horn V. Campbell, 100 id. 287, dig. p. 97. ^Trustees v. Kellogg, 16 N. Y. 83, dig. p. 94 ; Terry v. Wiggins, 47 id. 513, dig. p. 95, Vernon v. Vernon, 53 id. 351 ; dig. p. 96 ; Livingston v. Murray, 68 id. 485, dig. p. 97. ^Norris v. Beyea, 13 JST. Y. 373, dig. p. 94 ; Campbell v. Beaumont, 91 id. 464, dig. p. 97 ; Van Home v. Campbell, 100 id. 287, dig. p. 97. * Smith V. VanOstrand, 64 N. Y. 278 ; Livingston v. Murray, 68 id. 485, dig. p. 97 ; Wagnei- v. Wagner, 96 id. 164, dig. p. 97 ; Matter of Oager, 111 id. 343, dig. p. 98 ; Crozier v. Bray ; 130 id. 366, dig. p. 99, Rose v. Hatch, 135 id. 427, dig. 100; Leggett v. Firth, 132 id. 7, dig. p. 101. 960 POWEKS. NOTE TO SECTIONS 129-134. When power to devise carries a fee. A general and beneficial power to owner of an estate for life or for years to devise the inheritance, gives power to dispose of the property by grant. Hume V. Randall, 141 N. Y. 499; Deegan v. Wade, 144 id. 573. See cases under section 133, supra. Remainder after power of disposal. For valid future estates limited after the gift of a power of disposi- tion. • See Terry v. Wiggins, 47 N. Y. 513, dig. p. 95; Matter of Cager, 111 id. 343, dig. p. 98; Haynes v. Sherman, 117 id. 433, 438, dig. p. 98; Crozier v. Bray, 130 id. 366, dig. p. 99; Rose v. Hatch, 135 id. 437, dig. p. 100; Leggett v. Firth, 133 id. 7, dig. p. 101; Qreystone v. Clark, 41 Hun, 135, dig. p 101; Matter of Blauvelt, 60 id. 394, dig. p. 103; 131 N. Y. 349; Thomas v. Wolford, 31 Abb. N. C. 331, dig. p. 331 ; Blanchard v. Blanchard, 4 Hun, 390, dig. p. 103. See, further, note additional de- cisions, ante, pp. 103-105, 105-106. Repugnancy of gift over, to power of disposition. Eepiignancy of gift over to an absolute power of disposition. See Norris v. Beyea, 13 N. Y. 373, dig. p. 94; Trustees v. Kellogg, 16 id. 83, dig. p. 94; Campbell v. Beaumont, 91 id. 464, dig. p. 97; Van Home v. Campbell, 100 id. 287, dig. p. 97; Griswold v. Warner, 51 Hun, 13, dig. p. 103. See, further, ante, pp. 103-105. Power of disposition accompanied hy or subject to a trust A power of disposition, accompanied by or subject to a trust, does not give absolute power of disposition. Kinnier v. Rogers, 43 N. Y. 534, dig, p. 94; Cutting v. Cutting, 86 id. 533, dig. p. 893; Crookev. County of Kings, 97 id. 431, dig. p. 448; Asche v. Asche, 113 id. 233, dig. p. 193; Genet v. Hunt, 113 id. 158, dig. p. 456; Haynes v. Sherman, 117 id. 433, 438, dig. p. 98; Rose v. Hatch, 135 id. 437, dig. p. 100; Matter of Blauvelt, 131 id. 349, dig. p. 910; Hume v. Randall, 141 id. 499; Thomas v. Pardee, 13 Hun[ 151, dig. p. 113; Germond v. Jones, 2 Hill, 569, 574, dig. p. 103. Conditional power of disposition. Conditional power of disposition. Vernon v. Vernon, 53 N. Y. 351, dig. p. 96; Smith v. VanOstrand, 64 id. 378, dig. p. 96; Livingston v. Murray, 68 id. 485, dig. p. 97; Matter of Cager, 111 id. 843' dig' p. 98. Enlargement of life estate hy power of sale. Life estate not enlarged by power of sale. Ackerman v. Gorton, 67 N. Y. 63, dig. p. 96 ; Livingston v. Murray, 68 id. 485, dig. p. 97; Germond v. Jones, 3 Hill, 569, 574, dig. p. 103. See, further ante m 105-106. ' ^^' V. ESTATE OR INTEREST TAKEN BY THE GRANTEE OF POWER. 961 NOTE TO SECTIONS 129-134. Remainder ajler power to consume corpus. When power to consume the corpus is repugnant to and destruc- tive of limitation over after death of the grantee of the power. Livingston v. Murray, 68 N. Y. 485, digested p. 106; Matter of Tates, 99 id. 94, digested p. 107. When future estates take effect in such portion of the property as is- not consumed by the grantee of the power. Wager v. Wager, 96 N. T. 164, digested p. 97; Spencer v. Strait, 38 Hun, 338, di- gested p. 108; Wortman v. Kobinson, 44 id. 357, digested p. 108; Wells v. Seeley, 47 id. 109, digested p. 108; Matter of Fuller, 23 St. Rep. 352, digested p. 108. See, Matter of Gardner, 140 N. T. 133, digested p. 107. Cases where the estate is given to B. in fee, with power to diminish or consume the property for his own purposes and at his discretion and the will gives what is left at the first taker's death to C. See cases, ante, pp. 108-109. Cases where the estate is given to a trustee with power to diminish or consume the principal for the benefit or purposes of B. and the will gives what is left at the death of the first b eneficiary to C. See cases, ante, pp. 109-110. Cases where the estate is first given to B. for Hfe, with power to dimin- ish or consume the property for his own purposes and at his discretion, and the will gives what is left at the first taker's death to 0. See cases, ante, p. 110. Remainders after power to tcse corpus for support. Power to use principal for support — whether takers of future estates are entitled to the surplus. Bundy v. Bundy, 38 N. T. 410, 431, digested p. Ill; Smith v. Van Ostrand, 64 id. 278, digested p. 111. Where person entitled to take and use the principal for his benefit and support takes an absolute fee. Grain v. Wright, 114 N. Y. 307, digested p. 113. When the principal fund is confided to a legatee for life with power to use the same for his support, he becomes a trustee for the person en- titled in remainder to the unexpended portion. Smith V. Van Ostrand, 64 N. Y. 378, digested p. 111. Power of person entitled to use principal for support to incumber the property. Swarthout v. Ranier, 143 N. Y. 499, digested p. 113. When a power of disposition for support is given to A. but the prop- erty is given in trust to trustees. Thomas v. Pardee, 13 Hun, 151. 131 962 POWERS. NOTE TO SECTIONS 129-134. When a person has power of disposition of principal to use for her support iu her discretion she is the sole judge of her necessities. See ante, p. 113. Precatory clauses. Whether a trust is created in cases when a power of disposition is given, or the words are precatory. See ante, pp. 113-116. Absolute gift, whether cut down to a power of consumption. Whether gift of title is cut down to the power of consumption by subsequent provisions for a gift over. Hermance v. Mead, 18 Abb. N. C. 90, digested p. 115. Whether an absolute gift is repugnant to an absolute power of consump- tion given to aiiother. When a gift is not repugnant to a power given to a trustee to apply all or such part of the property as he should deem necessary to the edu- cation, maintenance and support of another. Trustees, etc. v. Kellogg, 16 N. T. 83, 88, digested p. 116. Compare Rowland v. Clendenin, 134 K T. 305, digested p. 133. Whether an absolute gift is cut down by a power to sell or invest. When a gift of a fee is not cut down by a power of sale. Jennings v. Conboy, 73 N. Y. 330, digested p. 117. Compare Matter of McClure, 136 id. 338, digested p. 133; Vernon v. Vernon, 53 id. 351, digested p. 117. Discretionary power to, legatee to use property for herself and others. Discretionary power given to one to retain or dispose of property for the benefit of herself and children did not cut down prior absolute gift. Clarke v. Leupp, 88 N. T. 338, digested p. 118. As to repugnant limitations, see ante, pp. 115-129. Vn. POWER OF LIFE TENANT TO MAKE LEASES. Eeal Prop. L., sec. 135. "Power of life tenant to make leases. — . The power of a tenant for life to make leases is not assignable as a separate interest, but is annexed to his estate, and passes by a grant of puch estate unless specially excepted. If so excepted, it is extinguished. Sach a power may be released by the tenant to a person entitled to an expectant estate in the property, and shall thereupon be extinguished." 1 R. S.. 733, sees. 88, 89 (repealed by Real Prop. L., sec. 300), used the words " any conveyance" instead of " a grant." V. ESTATE OR INTEREST TAKEN BY THE GRANTEE OF POWER. 963 Vm. EFFECT OF MORTGAGE BY GRANTEE. Real Prop. L., sea 136. "Effect of mortgage by grantee. — A mort- gage executed by a tenant for life, having a power to make leases does not extinguish or suspend the power ; but the power is bound by the mortgage in the same manner as the real property embraced therein, and the effects on the power of such lien by mortgage are : 1. That the mortgagee is entitled to an execution of the power so far as the satisfaction of his debt requires ; and, 2. That any subsequent estate, created by the owner, in execution of the power, becomes subject to the mortgage as if in terms embraced therein." 1 R. S. 733, sees. 90, 91 (repealed by Real Prop. L. , sec. 300), inserted the clause "or by a mariaed woman by virtue of any beneficial power," after "leases" in the first sentence. VI. THE EXECUTION OP POWERS. I. WHEN A TRUST POWER IS IMPERATIVE. Real Prop. L., sec. 137. "When a trust power is imperative. — A trust power, unless its execution or non-execution is made expressly to depend on the will of the grantee, is imperative, and imposes a duty on the grantee, the performance of which may be compelled for the benefit of the person interested. A trust power does not cease to be imperative where the grantee has the right to select any, and exclude others, of the persons designated as the beneficiaries of the trust." 1 R. S. 734, sees. 96, 97 (repealed by Real Prop. L., sec. 300), used the word "ob jects " instead of " beneficiaries," but was otherwise substantially the same. See Index to cases, post, p. 973). A trust power is imperative. Delaney v. McCormack, 88 N. Y. 174 ; Parrar v. McCue, 89 id. 139, 144 ; Mott v. Ackermau, 93 id. 539, 551 ; Dana v. Murray, 132 id. 604, 613 ; Tilden v. Green, 130 id. 29, 54; Holly v. Hirsch, 135 id. 590, 596; Matter of Gantert, 136 id. 106; Smith v. Floyd, 140 id. 337, 343. An imperative power imposes a duty on the grantee, the performance of which may be compelled for the benefit of the person interested (as to rights of creditors or jassignees see sec. 143, post, p. 977. Power V. Cassidy, 79 K. Y. 603, 613 ; Dana v. Murray, 132 id. 604, 613 ; Tilden v. -Green, 130 id. 39, 54; Matter of Gantert, 136 id. 106; Smith v. Floyd, 140 id. 337, 343; Manice v. Manice, 43 id. 303, 365; Wild v. Bergen, 16 Hun, 127. See Index to cases, post, p. 977. Uniess its execution or nonexecution is made expressly to depend on the will of the grantee. Coleman v. Beach, 97 N. Y. 545; Clift v. Moses, 116 id. 144, 158; Tilden v. Green, 130 id. 29, 47; Matter of Gantert, 136 id. 106; Matter of Bierbaum, 40 Hun, 504. See Index to cases, post, p. 974. A trust power does not cease to be imperative when the grantee has the right to select any and exclude others, of the persons designated as the beneficiaries of the trust. See sec. 138, post, p. 965. Power V. Cassidy, 88 N. Y. 603; Tilden v. Green, 130 id. 29, 64; Ireland v. Ireland, 84 id. 331; Crooke v. County of Kings, 97 id. 443; Holland v. Alcock, 108 id. 813, 330-1. See " Beneficiary," ante, p. 833. A power or authority to sell is discretionary, unless its exercise is directed, or is rendered necessary and essential by the scope of the will, and its declared purposes. White v. Howard, 46 N. Y. 144, 163; Scholle v. SchoUe, 113 id. 261, 270; Clift v. Moses, 116 id. 144, 158; Matter of Gantert, 136 id. 106. The right and privilege of disposing of property by will to a person or class of persons is imperative. Smith v. Floyd, 140 N. Y. 387. A reservation by a grantor of power to devise is not imperative. Towler v. Towler, 143 N. Y. 371. (964) VI. THE EXECUTION OF POWERS. 965 I. WHEN- A TBUST POWER IS IMPERATIVE. While a power may be imperative, the time and manner of its execution may be ■discretionary. Haight V. Brisbin, 96 N. T. 133, 135. When the exercise of the power is in the discretion of the grantee thereof, the court can not control his discretion, nor exercise it for him. Haight V. Brisbin, 96 N. Y. 132, 135; Holden v. Strong, 116 id. 471, 474; Jones v. Jones, 8 Misc. 660. The execution of discretionary powers must be in good faith, and must not be abused. Haight V. Brisbin, 96 N. Y. 133, 135; Holden v. Strong, 116 id. 471, 474; Jones v. Jones, 8 Misc. 660. The discretion of trustees as to the application of trust funds to the support of des- ignated beneficiaries may be subject to the control of the court. Bundy v. Bundy, 38 N. Y, 410; Ireland v. Ireland, 84 id. 331; Croolie v. County of Kings, 97 id. 443; Holden v. Strong, 116 id. 471, 474. See Index to cases, post, p. 974, 977. II. DISTRIBUTION WHEN MORE THAN ONE BENEFICIARY. Real Prop. L., sec. 138. " Distribution when more than one ben- eficiary. — Where a disposition under a power is directed to be made to, among, or between two or more persons, without any specification of the share or sum to be allotted to each, all the persons designated shall be entitled to an equal proportion ; but when the terms of the power import that the estate or fund is to be distributed, among the persons so designated, in such manner or proportions as the grantee of the power thinks proper, the grantee may allot the whole to any one or more of fiuch persons in exclusion of the others." 1 R. S. 734, sees. 98, 99 (repealed by Real Prop. L., sec. 300) used trustee of the "power instead of "grantee of the power"; was otherwise substantially the same. See Index to cases, post, p. 975. The power exercisable under this section may be imperative. See note to sec. 137, ante. p. 964. Power V. Cassidy, 88 N. Y. 603, digested p. 861; Holland v. Alcock, 108 id. 813, digested p. 863; Austin v. Oakes, 117 id. 577; Drake v. Drake, 134 id. 330; Read v. Williams, 135 id. 560; Matter of Conner, 6 App. Div. 594. See, also. Beneficiary, p. 831 et seq.; Charitable uses, p. 847 et seq. III. BENEFICIAL POWER SUBJECT TO CREDITORS. Real Prop. L., sec. 139. "Beneficial power subject to creditors. — A special and beneficial power is liable to the claims of creditors in the same manner as other interests that can not be reached by execution ; and the execution of the power may be adjudged for the benefit of the creditors entitled." 1 R. S. 733, sec. 93 (repealed by Real Prop. L., sec. 300) was substantially the same. See, also, sec. 143; also Index to cases, post, p. 978. POWERS. III. BENEFICIAL POWER SUBJECT TO CREDITORS. In Cutting v. Cutting, 86 N. T. 541, et seq., it was stated that this section did not declare that every special and beneficial power, ipso facto, is liable to the claims of creditors, but " that when a special and beneficial power, by reason of the provisions of the article operating on the terms of the power, is liable to the claim of creditors, the liability is enforceable by creditor's bill, or in any other manner that other debtor interests that can not be reached bylaw may be reached in equity; and that, when the grantee of the power refuses or neglects to execute the power, or mistakes the manner of the execution, the execution in proper mode may be decreed for the benefit of any creditor who has a right thereby," and the case holds that a general and beneficial power to a person, the beneficiary under a trust estate, to appoint by will, was not subject to a judgment against the beneficiary. The effect of a trust in preventing the beneficiary from taking a fee is pointed out in Hume v. Bandall, 141 N. T. 499. As to lien of judgment creditor, see Sayles v. Best, 140 N. Y. 368. IV. EXECUTION OF POWER ON DEATH OP TRUSTEE. Eeal Prop. L., sec. 140. "Execution of power on death of trustee. — If the trustee of a power, with the right of selection, dies leaving the power unexecuted, its execution must be adjudged for the benefit, equally, of all the persons designated as beneficiaries of the trust" 1 R. S. 734, sec. 100 (repealed by Real Prop. L., sec. 300) was substantially the same. See, also, section 163, post, p, 1017. Power of court to adjudge execution of power Holland v. Alcock, 108 N.Y. 330-1. When objects of unexecuted power take equally. Smith V. Floyd, 140 N. Y. 337, digested p. 897. See Beneficiary, ante, p. 833; also. Index to cases, post, p. 977. V. WHEN POWER DEVOLVES ON COURT. Eeal Prop. L., sec. 141. "When power devolves on court. — Where a power in trust is created by will, and the testator has omitted to designate by whom the power is to be executed, its execution de- volves on the supreme court." 1 R. S. 734, sec. 101 (repealed by Real Prop. L., sec. 300) used the word "exercised" instead of "executed", and "court of chancery" for "supreme court" ; was otherwise substantially the same. See Index to cases, post, p. 977. The power may devolve on the executor. Officer v. Board of Home Missions, 47 Hun, 352; citing, Bogert v. Hertell, 4 Hill, 500; Dorland v. Dorland, 3 Barb. 80; see, also, Meakings v. Cromwell, 5 N. Y. 139. See, also, section 163, post, p. 1017. As to failure to appoint a trustee, see ante, p. 841. VI. WHEN CREDITORS MAY COMPEL EXECUTION OF TRUST POWER. Eeal Prop. L., sec. 142. " When creditors may compel execution of trust power. — The execution, wholly or partly, of a trust power may VL THE EXECUTION OF POWERS. 967 VI. "WHEN CREDITORS MAY COMPEL EXECUTION OF TRUST POWER. be adjudged for the benefit of the creditors or assignees of a person en- titled as a beneficiarj of the trust, to compel its execution, where his interest is assignable." 1 R. S. 735, sec. 103 (repealed by Real Prop. L. , see. 800), used ' ' decreed in equity " instead of "adjudged," and "objects of the trust" instead of " beneficiary; " was otherwise substantially the same. See section 137, ante, p. 964; section 139, ante, p. 965; Index to cases, post, p. 977 VII. DEFECTIVE EXECUTION OP TRUST POWER. Eeal Prop. L., sec. 143. " Defective execution of trust power, — Where the execution of a power in trust is defective, wholly or partly, under the provisions of this article, its proper execution may be ad- judged in favor of the person designated as the beneficiary of the trust." 1 R. S. 737, sec. 131 (repealed by Real Prop. L., sec. 300), used "decreed in equity" instead of "adjudged," and "objects" instead of "beneficiary;" was other wise substantially the same. See section 160, post, p. 973; Index to cases, post, p. 976-7. When equity aids a defective execution of a power. Schenck v. EUingwood, 3 Edwd. Ch. 175. VIII. EFFECT OP INSOLVENT ASSIGNMENT. Real Prop. L., sec. 144. " EflEect of insolvent assignment. — A bene- ficial power, and the interest of every person entitled to compel the exe- cution of a trust power, shall pass respectively, to a trustee or commit- tee of the estate of the person in whom the power or interest is vested, or an assignee for the benefit of the creditors." 1 R. 8. 735, sec. 104 (repealed by Real Prop. L., sec. 300), provided that the power or interest should pass under any assignment authorized by chapter V (3 R. S., 40), in relation to trustees of debtors and voluntary assignments; was otherwise substan tiaUy the same. IX. HOW POWER MUST BE EXECUTED. Eeal Prop. L., sec. 145. "How power must be executed. — A power can be executed only by a written instrument, which would be suffi- cient to pass the estate, or interest, intended to pass under the power, if the person executing the power were the actual owner." 1 R. 8. 735, sec. 113 (repealed by Real Prop. L., sec. 300), was substantially the same. See Real Prop. L., sec. 340. X. EXECUTION BY SURVIVORS. Real Prop. L., sec. 146. "Execution by survivors. — "Where a power is vested in two or more persons, all must unite in its execution ; but if 968 powEES. X EXECUTION BY SURVIVORS. before its execution, one or more of such persons dies, the power may be executed by the survivor or survivors." 1 R. S. 735, sec. 113 (repealed by Real Prop. L., sec. 300), was substantially the same. Code of Civil Procedure, sec 2642. * * * "And where any powers to sell, mortgage or lease real estate, or any interest therein, are given to executors as such, or as trustees, or as executors and trustees, and any such persons named as executors shall neglect to qualify, then all sales, mortgages and leases under said powers made by the executors who shall qualify, shall be equally valid as if the other executors or trustees had joined in such sale." 2 E. S. 109, sec. 55 (sec. 55, title 4, ch. 6, part 2, R S.).— " Where any real estate or any interests therein, is given or devised by any will legally executed, to the executors therein named, or any of them, to be sold by them or any of them, or where such estate is or- dered by any last will to be sold by the executors, and any executor shall neglect or refuse to take upon him the execution of such will, then all sales made by the executor or executors, who shall take upon them the execution of such will, shall be equally valid, as if the other executors had joined in such sale." See index to cases, post, p. 977. Tlie tliree statutes cover — Real Prop. L., sec. 146, a vacancy caused by death; Code, sec. 3642, a vacancy caused by neglect to qualify, in case of a power to sell, etc. given by will to executors or trustees; R. 8. sec. 55, a neglect or refusal of an executor to take upon him the execution of the will. These sections are all limited; but are supplemented by the power conferred on the court by section 163, whereby sections 91 and 93 of the Real Property Law are made applicable to powers. The Revised Statute was held to be applicable to a discretionary power in Leggett V. Hunter, 19 N. Y. 445, which cites Taylor v. Morris, 1 id. 341, and- Niles v. Stevens, 4 Denio, 399. The rule is that the power must be exercised by all in whom it is vested, unless the instrument creating the power otherwise provide. See ante, p. 789, et aeg. Wilder V. Ranney, 95 N. T. 7, digested p. 740; Barry v. Lambert, 98 id. 300, digested p. 740; WhiHock V. Washburn, 63 Huq, 373; Van Boskerck v. Herrick, 65 Barb. 358; Matter of Van Wyck, 1 Barb. Ch. 569; Ogden v. Smith, 3 Paige, 198; Berger v. Duff, 4 Johns. Ch. 368. But the three sections above permit exceptions to this rule. Taylor v. Morris, 1 N. Y. 341; Leggett v. Hunter, 19 id. 445; House v. Raymond, 3 Hun, 44. Unless the instrument creating the power otherwise provide. Herriott v. Prime, 87 Hun, 95, citing Hyatt v. Aguero, 34 J. & S. 63; Kissam v. Dierkes, 49 N. Y. 603. These sections do not cover a case of resigaation or removal. Matter of Van Wyck, 1 Barb. Ch. 565. See, however, Fleming v. Barnham, 100 N. Y. 1. But section 55 (R. S.) seems broad enough to cover a case of resignation, for if one executor may exercise the power, wlien his coexecutor refuses to take upon himself the execution of the will, Rosebooin v. Mosher, 3 Denio, 61, how much the more VL THE EXECUTION OF POWERS. 969 X. EXECUTION BY SURVIVORS. "should he possess that power when his coexecutor resigns. See, Matter of Bernstein, 3 Redf . 20. See 3 R. 8. 109, sec. 55, distinguished from section 153. Correll v. Lauterbach, 13 App. Div. 531, afE'g 14 Misc. 469. XI. EXECUTION OF POWER TO DISPOSE BY DEVISE. Real Prop. L., sec. 147. " Execution of power to dispose by devise. — "Where a power to dispose of real property is confined to a disposition by devise or will, the instrument must be a written will, executed as required by law." 1 R. S. 736, sec. 115 (repealed by Real Prop. L., sec. 300), omitted the word "written" and required the execution to be in accordance with chapter VI (3 R. 8. 56), concerning wills and testaments; was otherwise substantially the same. XII. EXECUTION OF POWER TO DISPOSE BY GRA.NT. Eeal Prop. L., sec. 148. "Execution of power to dispose by grant. — Wbere a power is confined to a disposition by grant, it can not be exe- cuted by will, although the disposition is not intended to take effect until after the death of the person executing the power." 1 R. S., 786, sec. 116 (Repealed by Real Prop. L., sec. 300), used the word "party" instead of "person.'' See Matter of Gardner, 140 N. Y. 123, digested p. 107; Hume v. Randall, 141 id. 499; Deegan v. Wade, 144 id. 573; Cutting v. Cutting, 86 id. 534; Calvin v. Young, 81 Hun, 116. XIII. WHEN DIRECTION BY GRANTOR DOBS NOT RENDER POWER VOID. Real Prop. L., sec. 149. " When direction by grantor does not ren- der power void. — Where the grantor of a power has directed or author- ized it to be executed by an instrument not sufficient in law to pass the estate, the power is not void, but its execution is to be governed by the provisions of this article." 1 R. 8. 736, sec. 118 (repealed by Real Prop. L., sec. 300), was substantially the same. XIV. WHEN DIRECTIONS BY GRANTOR NEED NOT BE FOLLOWED. Real. Prop. L., sec. 150. " When directions by grantor need not be followed. — Where the grantor of a power has directed any formality to be observed in its execution, in addition to those which would be suffi- cient by law to pass the estate, the observance of such additional for- mality is not necessary to the valid execution of the power." 1 R. 8. 786, sec. 119 (repealed by Real Prop. L., sec. 300), was substantially the same. Kissam v. Dierkes, 49 N. Y. 603; Griswold v. Perry, 7 Lans. 98, 104; Schenck v. Ellingwood, 3 Edw. Ch. 175, 176. 133 970 POWERS. XV. NOMINAL CONDITIONS MAY BE DISREGARDED. Eeal Prop. L., sec. 151.—" Nominal conditions may be disregarded. Where the conditions annexed to a power are merely nominal, and evince no intention of actual benefit to the party to whom, or in whose favor, they are to be performed, they may be wholly disregarded in the execution of the power." 1 R. S. 736, sec. 120 (repealed by Real Prop. L., sec. 300) was the same. Brown v. Parmer's L. & T. Co., 51 Hun, 386, afl'd 117 N. Y. 266. See Phillips v. Davies, 93 N. Y. 199, 304; Bradstreet v. Clarke, 13 Wend. 603. See cases under sees. 150, 153, also Index to cases, post, p. 976. XVI. INTENT OP GRANTOR TO BE OBSERVED. Keal Prop. L., sec. 152. — "Intent of grantor to be observed. — Except as provided in this article, the intentions of the grantor of a power as to the manner, and conditions of its execution must be observed; subject to the power of the supreme court, to supply a defective execution as provided in this article." 1 R. S. 736, sec. 121 (repealed by Real Prop. L. , sec. 300) was substantially the same. See section 143, ante, p. 967; also section 160, post, p. 973 ; The essential require- ment in the execution of all powers is that the intention of the grantor of the power shall be observed. Sections 150 and 151 of the Real Property Law provide that certain directions relating to mere formalities, and conditions merely nominal, may be disregarded. But all requirements, directions, and conditions, essentially limiting, or regulating the exercise of the power, must be fulfilled, it it appear that it was the intention of the grantor of the power that the power should not be otherwise exe- cuted. This section, then, relates generally to the due exercise of powers, and is illustrated by all cases falling under the execution of powers. A convenient reference to such cases will be found in the Index to cases at p. 978. XVII. CONSENT OP GRANTOR OR THIRD PERSON TO EXECUTION OP POWER. Eeal Prop. L., sec. 153. "Consent of grantor or third person to exe- cution of power. — Where the consent of the grantor or a third person to the execution of a power is requisite, such consent shall be expressed in the instrument by which the power is executed, or in a written cer- tificate thereoa In the first case, the instrument of execution, in the second, the certificate, must be subscribed by the person whose consent is necessary ; and to entitle the instrument to be recorded, such signa- ture must be acknowledged or proved and certified in like manner as a deed to be recorded." 1 R. S. 736, sec. 133 (repealed by Real Prop. L., sec. 300) omitted the word "grantor" in the first sentence. In the first clause of the second sentence "signed" was used for "subscribed" and "party" for " person." In the second clause of the second sentence " and certified was omitted " and the signature was to be acknowl- edged or proved " in the same manner as if subscribed to a conveyance of lands;" otherwise was substantially the same. See Index to cases, post, p. 976-7. VI. THE EXECUTION OF POWERS. 971 XVIL CONSENT OP GRANTOR OR THIRD PERSON TO EXECUTION OF POWER. This section is modified by section 154, which permits the consent of a survivor or survivors, when the consent of two or more persons is required to the execution of the power, and one or more of them die before the execution of the power. Section 154 therefore supersedes the rule laid down in Barber v. Carey, 11 N. Y. 397, and Kissam v. Dierkes, 49 id. 602. In addition to these cases illustrating section 153, see Hoyt v. Hoyt, 85 N. T. 142, afE'g 17 Hun, 192, when the power of sale was hot to be exercised, save with the approval of each and every of the heirs of the testator's real estate, see case as reported, in 17 Hun, 192, digested p. 1004. See also Hamilton v. New York Stock Exchange Building Co., 20 Hun, 88; see pp. 96, 97, Correll v. Lauterbach, 12 App. Div. 531, aflf'g 14 Misc. 469. See also qualified powers, post, p. 1009. XVIII. WHEN ALL MUST CONSENT. Real Prop. L., sec. 154. " When all must consent. — Where the con- sent of two or more persons to the execution of a power is requisite, all must consent thereto ; but if, before its execution, one or more of them die, the consent of the survivor or survivors is sufficient, unless other- wise prescribed by the terms of the power." This section was enacted as a part of the Real Prop. L. by ch. 547, L. 1896, and is intended to change the rule ennunciated in Barber v. Gary, H N. Y. 397; Kissam v. Dierkes, 49 id. 602. XIX. OMISSION TO RECITE POWER. Eeal Prop. L,, sec. 155. " Omission to recite power. — An instru- ment executed by the grantee of a power, conveying an estate or creating a charge, which he would have no right to convey or create, except by virtue of the power, shall be deemed a valid execution of the power, although ihe power be not recited or referred to therein." 1 R. S. 737, sec. 124 (repealed by Real Prop. L., sec. 300) was substantially the same. See Index to cases, post, p. 975. White V. Hicks, 33 N. Y. 383, aff'g 43 Barb. 64 ; Mott v. Ackerman, 92 N. T. 639, 549 ; Mutual Life Ins. Co. v. Shlpman, 119 id. 324 ; Austin v. Oakes, 117 id, 577, 593 ; Roarty v. McDermott, 146 id. 296, 303 ; Cole v. Gourlay, 9 Hun, 493, art'd 79 N. Y. 527, see also Heyer v. Burger, 1 HoflE. Ch. 1 ; Bradlsh v. Gibbs, 3 Johns. Ch. 522. Also see cases under next section. XX. WHEN DEVISE OPERATES AS AN EXECUTION OP THE POWER. Real Prop. L., sec. 156. "When devise operates as an execution of the power. — ^Real property embraced in a power to devise passes by a will purporting to convey all tlie real property of the testator, unless the intent that the will is not to operate as an execution of the power^ appears, either expressly or by necessary implication." 1 R. S. 737, sec 126 (repealed by Real Prop., L., sec. 800) was substantially the same; See Index to cases, post, p. 975. 972 POWEES. XX. WHEN DEVISE OPERATES AS AN EXECUTION OF THE POWER. See cases under section 155, ante, p. 971. See also cases digested under the Execution of Powers, post, p. 975. Wright v. Syracuse, Ontario and New York R. Co., 93 Hun, 33 ; Button v. Benkard, 93 N. Y. 395 ; New York Life Ins. Co. V. Livingston, 133 id. 125 ; Thomas y. Snyder, 43 Hun, 14 ; Hogle v. Hogle, 49 id. 313 ; Kibler v. Miller, 57 id. 14, afiE'd 141 N. Y. 571 ; Lockwood v. Milde- berger, 5 App. Div. 459 ; Stewart v. Keating, 15 Misc. 44, where the rule since and before the statute is considered. In addition to above see VanWert v. Benedict, 1 Bradf. 114 ; Bolton v. DePeyster, 25 Barb. 539 ; Sewall v. Wilmer, 132 Mass. 131 ; Funk v. Eggleston, 92 111. 515 ; Warner v. Conn. M. L. Ins. Co., 109 U. S. 357. XXI. DISPOSITION NOT VOID BECAUSE TOO EXTENSIVE. Real Prop. L., sec. 157. " Disposition not void because too ex- tensive. — A disposition or charge by virtue of a power is not void on the ground that it is more extensive than was authorized by the power ; but an estate or interest so created, so far as embraced by the terms of the power, is valid." 1 R. S. 737, sec. 133 (repealed by Real Prop. L., sec. 300)on?itted the words "or charge," otherwise was substantially the same. Hillen v. Iselin, 144 N. Y. 365, digested p. 471. See cases, ante, p. 374, and dis- «ussion, ante, p. 397. See, also, Crooke v, County of Kings, 97 N. Y. 445. XXII. COMPUTATION OF TERM OF SUSPENSION. Real Prop. L., sec. 158. "Computation of term of suspension. — The period during which the absolute right of alienation may be suspended, by an instrument in execution of a power must be computed, not from the date of such instrument, but from the time of the creation of the power." 1 R. S. 737, sec. 128 (repealed by Real Prop. L., sec. 300) was substantially the same. See Index to cases, post, p. 978. See discussion and cases, ante, p. 404. XXIII. CAPACITY TO TAKE UNDER A POWER. Real Prop. L., sec. 159. "Capacity to take under a power. — Aa estate or interest can not be given or limited to any person, by an instru- ment in execution of a power, unless it would have been valid if given or limited at the time of the creation of the power." 1 R. S. 737, sec. 129 (repealed by Real Prop. L., sec. 300) instead of last clause be- ginning "unless", had "which such person would not have been capable of taking, under the instrument by which the power was granted;" otherwise was substantially the same. Dana v. Murray, 123 N. Y. 604. See Matter of Stewart, 131 N. Y. 274; Jackson v. Davenport, 20 Johns 537. VI. THE EXECUTION OF POWERS. 973 XXIV. PURCHASE UNDER DEFECTIVE EXECUTION. Eeal Prop. L., sec. 160. "Purchase under defective execution. — A purchaser for a valuable consideration, claiming under a defective exe- cution of a power, is entitled to the same relief as a similar purchaser claiming under a defective conveyance from an actual owner." 1 R. S. 737, sec. 133 (repealed by Real Prop. L., sec. 300) was substantially the same. See section 143. XXV. INSTRUMENT AFFECTED BY FRAUD. Eeal Prop. L., sec. 161. "Instrument affected by fraud. — An instru- ment in execution of a power is affected by fraud, in the same manner as a conveyance or will, executed by an owner or by a trustee." 1 R. 8. 737, sec. 135 (repealed by Real Prop. L., sec. 800) omitted the words "or will;" otherwise substantially the same. See Index to cases, post, p. 975. Smith V. Bowen, 35 N. T. 83; Russell v. Russell, 36 id. 581; McMurray v. McMur- ray, 66 id. 175; People v. Open Board, 93 id. 98; Haack v. Weicken, 118 id. 67; Har- ris V. Strodl, 133 id. 396; Matter of Rider, 23 Hun, 91; McPherson v. Smith, 49 id. 254; Harty v. Doyle, id. 410; Benedict v. Arnoux, 7 App. Div. 1; matter of Vande- vort, 8 id. 341. Decisions relating to sections 137-161. Index to cases. See Power of disposition by will, ante, p. 893; Power of sale, ante, p. 901; Power to mortgage, lease, or pledge, ante, p. 949; see, also, cases under sections 137-161, given above. 1. Execution of power of sale to pay debts. Allen V. DeWitt, 3 N. Y. 376; Russell v. Russell, 36 id. 581; Matter of Bolton, 83 Hun, 259 (affirmed 146 N. Y. 357, digested p. 945); Matter of Gantert, 136 id. 106. 2. Payment of outlawed debts. Butler v. Johnson, 111 N. Y. 304; O'Flynn v. Powers, 186 id. 413. 3. Debts due grantee of the power. O'Flynn v. Powers, 136 N. Y. 413. 4. Distinction between power to sell to pay debts and one to pay legacies. Clift V. Moses, 116 N. Y. 144. _ 5. Power to sell to pay legacies. Clift V. Moses. 116 N. Y. 144; Keller v. Ogsbury, 121 id. 336; Hoyt T. Hoyt, 17 Hun, 193. aff'd 85 N. Y. 143; Hovey v. Chisholm, 56 Hun, 338. 6. Power to sell and distribute proceeds. Allen V. DeWitt, 3 N. Y. 276; Prentice v. Janssen, 79 id. 47a 7. Power to sell and invest proceeds for beneficiaries. Bundy v. Bundy, 38 N. Y. 410. 8. Power to sell and invest proceeds in land. Leggett V. Hunter, 19 N. Y. 445. 9. Power to sell for support, executed by pledge or mortgage. Swarthout v. Ranier, 143 N. Y. 499; Brown v. Farmers' Loan & Trust Co., 61 Hun. 886, aff'd 117 N. Y. 366, digested p. 951. 97i POWERS. 10. Discretionary element in jwwer. Power to executors to sell " in case they should find it proper or most fit in their opinion," Taylor v. Morris, 1 N. T. 341; "as deemed expedient for the best interest of all my legatees," Hovey v. Chisholm, 56 Hun, 338; upon such terms and in such manner as they should deem for the best interest of the estate, Benedict v. Arnoux, 7 App. Div. 1; "in such parcels, at such times, and for such considerations as they should judge proper," Allen v. DeWitt, 3 N. T. 376; " as she shall deem expedient and for the best interests " of legatees, Russell v. Russell, 36 id. 581. Cases involving similar expressions, Hancox v. Meeker, 95 N. Y. 538; Scholle v. Scholia, 113 id. 261; KeUer v. Ogsbury, 131 id. 363; Harris v. Strodl, 133 id. 396. 11. Discretion as to time of sale. Allen V. DeWitt, 3 N. T. 376; Hancox v. Meeker, 95 id. 538; Haight v. Brisbin, 66 id. 133; KeUer v. Ogsbury, 131 id. 363. 13. Discretion as to terms of sale. Roome v. Philips, 37 N. T. 357; Hancox v. Meeker, 95 id. 538; see cases above. 13. Discretionary power to convey to beneficiary. McLean v. McLean, 3 Hun, 395; see, also, ante, p. 345. 14. Discretionary power to increase an annuity. ' (See Mason v. Mason's Ex'rs, 4 Sandf. Ch. 533, afE'd 13 Barb. 461, digested p. 538). 15. Powers purely discretionary. Coleman v. Beach, 97 N. T. 545; see Scholle v. Scholle, 113 id. 261. 16. Discretionary power to apply proceeds of sale to beneficiaries. Bundy v. Bundy, 38 N. T. 410; (see Ireland v. Ireland, 84 id. 331). 17. Consideration received on execution of power. AUen V. DeWitt, 3 N. T. 376; Russell v. Russell, 36 id. 581; Adair v. Brimmer, 74 id. 539; Syracuse Savings Bank v. Holden, 105 id. 415; Woerz v. Rademacher, 120 Id. 63. 18. Sale without consideration. Smith V. Bowen, 35 N. T. 83; People v. Open Board, 93 id. 98; Mutual Life Ins. Co. V. Woods, 131 id. 303; Hoyt v. Hoyt, 17 Hun, 193, afE'd 85 N. Y. 143; Benedict V. Arnoux, 7 App. Div. 1. 19. Nominal consideration. Meakings v. Cromwell, 5 K. Y. 136; McMurray v. McMurray, 66 id. 175; People v. Open Board, 93 id. 98; Hoyt v. Hoyt, 17 Hun, 193, afE'd 85 N. Y. 143. 20. Taking back mortgage to secure purchase money. Leggett T. Hunter, 19 N. Y. 445. 21. Release of mortgaged lands. Mutual Life Ins. Co. v. Woods, 131 N. Y. 303. 22. Exchange of lands. Woerz V. Rademacher, 130 N. Y. 63. 33. Debts primarily payable from personalty. Benedict v. Arnoux, 7 App. Div. 1. 24. Conveyance in payment of a distributive share. Allen V. Dewitt, 3 N. Y. 276. 25. Grantee of power conveying premises and taking back lease for life. McMurray v. McMurray, 66 N. Y. 175. 26. Taking payment in corporate stock. Adair v. Brimmer, 74 N. Y. 539. VI. THE EXECUTION OF POWERS. 975 37. Fraudulent or collusive sale. See Real Prop. L., sec. 161, ante, p. 973 ; Russell v. Russell, 36 N. Y. 681 ; Smith v. Bowen, 35 id. 83 ; McMurray v. MoMurray, 66 id. 175 ; People v. Open Board, 93 id. 98 ; Haack v. Weicken, 118 id. 67 ; Harris v. Strodl, 133 id. 396 ; Hoyt V. Hoyt, 17 Hun, 192, aff'd 85 N. Y. 143; Harty v. Doyle, 49 Hun, 410 ; McPherson V. Smith, id. 354; Benedict v. Arnoux, 7 App. Div. 1; Matter of Vandevort, 8 id. 341. 28. Wrong motive in selling. Rose V. Hatch, 125 N. Y. 427. 29. Executor selling and receiving back title to himself individually. People V. Open Board, 92 N. Y. 98. 30. Power to mortgage, executed by mortgage to secure husbands' debt. Leavitt v. Pell, 35 N. Y. 474. See Syracuse Savings Bank v. Holden, 105 id. 415. 31. Questions involving powers whose execution was alleged to be limited by time, the happening of events, or other restrictions. Prentice v. Janssen, 79 N. Y. 478 ; Phillips v. Davies, 93 id. 199 ; Mott v. Acker- man, id. 539; Hellenberg v. Dist. No. One, 94 id. 580; Coleman v. Beach, 97 id. 545; Austin V. Oakes, 117 id. 577; Bruner v. Meigs, 6 Hun, 303; Wild v. Bergen, 16 id. 137; Parsons v. Rhodes, 33 id. 80 ; Waldron v. Schlang, 47 id. 253 ; Cusack v. Tweedy, 56 id. 617. 83. Execution of power for support after the death of the beneficiary. Allport v. Jerrett, 61 Hun, 447. 33. Execution of power defeated by act of beneficiaries. By election to take the land. Prentice v. Janssen, 79 K. Y. 478; Mellen v. Mellen, 139 id. 310, digested p. 910; Harper v. Nat. Bank, 17 Misc. 331. By conveyance of the land by beneficiaries. Roberts v. Gary, 84 Hun, 338 ; see Garvey v. McDevitt, 73 N. Y. 556 ; Hetzel v. Barber, 69 id. 1, digested p. 1013. 34. Powers of appointment. Hellenberg v. Dist. No. One, 94 N. Y. 580 ; Austin v. Oakes, 117 id. 577 ; New York Life Ins. and T. Co., v. Livingston, 133 id. 135; Drake v. Drake, 134 id. 230; Hillen v. laelin, 144 id. 365 ; Kibler v. Miller, 57 Hun, 14, afE'd 141 N. Y. 571 ; Maitland v. Baldwin, 70 Hun, 367 ; (see also Fargo v. Squiers, 6 App. Div. 485; Stewart ▼. Keating, 15 Misc. 44 ; Metropolitan Trust. Co. v. Seaver, 17 id. 446). 35. Power of selection or allotment. See Real Prop. L., sec. 138, ante, p. 965; sec. 140, ante, p. 966; (Jraham v. Reed, 57 N . Y. 681 ; Austin v. Oakes, 117 id. 577 ; Reed v. Williams, 135 id. 560 ; Drake v. Drake, 134 id. 330 ; Matter of Conner, 6 App. Div. 594 ; Jones v. Jones, 8 Misc. 660. 36. Whether deed or will executes power. See Real Prop. L., sees. 155, 156, ante, p. 971; White v. Hicks, 33 N. Y. 383; Hutton V. Benkard, 93 id. 395; Mutual Life Ins. Co. v. Shipraan, 119 id. 324; New York Life Ins. & T. Co. v. Livingston, 133 id. 135; Cole v. Gourlay, 9 Hun, 493, afiE'd 79 N. Y. 537; Thomas v. Snyder, 43 Hun, 14; Hogle v. Hogle, 49 id. 313; Kibler v. Miller, 57 id. 14, aff'd 141 N. Y. 571; Pollock v. Hooley, 67 Hun, 370. 37. Whether deed or will is intended solely to execute power. Beardsley v. Hotchkiss, 96 N. Y. 301. 38. Whether deed or will is intended to operate solely on interests other than those covered by the power. . Mutual Life Ins. Co. v. Shipman, 119 N. Y. 334; Lockwood v. Mildeberger, 5 App. Div. 459. 976 POWERS. 39. Property embraced in power— Lands under contract of sale made by testator. Lewis V. Smith, 9 N. T. 503; Roome v. Pliilips, 37 id. 357; Holly v. Hirscb, 135 id. 590. 40. Afteracquired property. Byrnes v. Baer, 86 K Y. 310; Beardsley v. Hotchkiss, 96 id. 301. 41. Estates that may be created in execution of a power. Beardsley v. Hotchkiss, 96 N. Y. 301; Crooke v. County of Kings, 97 id. 431; Mait- land V. Baldwin, 70 Hun, 267. 43. Power given by a woman to her husband to sell, authorized him to release her dower. "Wronkow v. Oakley, 138 N. Y. 505. 43. Disposition of property under a power is not void because too extensive. Real Prop. L., sec. 157, ante, p. 973; Hillen v. Iselin, 144 N. Y. 365. 44. Power of grantee of power to make executory contracts, and the enforcement thereof. Haydock v. Stow, 40 N. Y. 363; Bostwick v. Beach, 103 id. 414. 45. Manner of executing power. See Real Prop. L., sec. 151, ante, p. 970. Sale must be in manner directed. Hetzel V. Barber, 69 JST. Y. 1; Craighead v. Peterson, 73 id. 379; Hellenberg v. Dist. One, etc., 94 id. 581; Bradstreet v. Clark, 13 Wend. 603. 46. Power to sell land executed by selling standing timber. Keller v. Ogsbury, 131 N. Y. 363. 47. Grantee of power joining in deed by guardian of infants pursuant to order of court. Cole v. Gourlay, 9 Hun, 493. 48. Power must be exercised for the precise purpose declared. See Real Prop. L., sec. 153, ante, p. 970 ; Hetzel v. Barber, 69 N. Y. 1; Craighead V. Peterson, 73 id. 379; Haack v. Weicken, 118 id. 67. 49. Reformation of instrument in case of erroneous execution of power. Haack v. Weicken, 118 N. Y. 67. 50. Executrix signing individual name. Myers v. Mutual Life Ins. Co., 99 N. Y. 1. 51. In exercising power under Real Property Law (sees. 139-133), no reference to statutory provisions is required. Brown v. Farmer's Loan & Trust Co., 51 Hun, 386; afE'd 117 N. Y. 336. 53. Defective execution of power — court supplying. Schenck v. Ellingwood, 3 Edw. Ch. 175. See Real Prop. L., sec. 143, ante, p. 967 ;, also sec. 160, ante, p. 973. Directory provisions. Bradstreet v. Clarke, 13 Wend. 603. 52a. There must be a substantial compliance with conditions annexed to power. Harris v. Strodl, 133 K. Y. 393. Wlien irregularities in execution of power are disregarded. Conklin v. N. Y. El. R. Co., 76 Hun, 430. 53. Consent of persons other than grantee of power. See Real Prop. L., sees. 153, 154, ante, p. 970-1; Barber v. Cary, 11 N.Y. 397; Kis- sam V. Dierkes, 49 id. 603; Phillips v. Davies, 93 id. 199; Hoyt v. Hoyt, 17 Hun, 193, afE'd 85 N. Y. 143; Suarez v. De Montigny, 1 App. Div. 494. See, also, Correll.v, Lauterbach, 14 Slisc. 469. VI. THE EXECUTION OF POWERS. 977 54. Death of a person or the persons whose consent is required. Barber v. Gary, 11 N. Y. 397; Kissam v. Dierkes, 49 id. 602; PhilUps v. Davies, 92 id. 199. 55. Execution, when some of the donees neglect, refuse or are unable to execute power. See Real Prop. L., sec. 146, ante, p. 967. 56. Execution of powers by executors qualifying. Taylor v. Morris, 1 N. Y. 341. 57. Execution by executors consenting to act or surviving. Viele V. Keeler, 139 N. Y. 190. 58. Executor refusing to act. Boss V. Roberts, 2 Hun, 90. 59. Execution of power by surviving executor. Anderson v. Davidson, 42 Hun, 431. See Pollock v. Hooley, 67 id. 370. 60. Power must be exercised by all donees. Wilder v. Ranney, 95 N. Y. 7; Whitlock v. Washburn, 63 Hun, 369 61. Ratification by donees not joining in execution. Whitlock v. Washburn, 63 Hun, 3G9. 62. Sale by administrator with will annexed. Roome v. Philips, 27 N. Y. 857; Matter of Baker, 36 Hun, 636; Pish v. Coster, 28 Id. 64; Paret v. Keneally, 30 id. 15; Matter of Patton, 41 id. 498. 63. Appointment by court of person to execute power of sale. Matter of Bierbaum, 40 Hun, 504. See Real Prop. L., sec. 162, post, p. 1017. 64. Executors with power of sale can no' convey with covenants of warranty. Ramsey v. Wandell, 32 Hun, 483. 65. Sale of land in another state. Newton v. Bronson, 13 N. Y. 587. 66. Delegation of power. Newton v. Bronson, 13 N. Y. 587; Coleman v. Beach, 97 id. 545. 67. Ratification of exercise of delegated power. Newton v. Bronson, 13 N. Y. 587. 68. Time within which power should be exercised. Manice v. Manice, 43 N. Y. 803; Matter of Weston, 91 id. 502; Hancox v. Meeker, 95 id. 528; Haight v. Brisbin, 96 id. 132; Matter of Travis, 85 Hun, 420. 69. Acceleration of execution of power. Kilpatrick v. Barron, 125 N. Y. 751. 70. Direction as to time within which power should be exercised. Parsons v. Rhodes, 23 Hun, 80; Waldron v. Schlang, 47 id. 252. 71. Delay in executing power. Manice v. Manice, 43 N. Y. 303; Hancox v. Meeker, 95 id. 528; Haight v. Brisbin, 96 id. 132. 72. Enforcement of execution of power by the court. Manice v. Manice, 43 N . Y. 303 ; Hancox v. Meeker, 95 id. 538 ; Matter of Gantert, 136 id. 106 ; Gelston v. Shields, 16 Hun, 143, afl'd 78 N. Y. 375 ; Hancox V. Wall, 28 Hun, 214. See Real Prop. L., sec. 137, ante, p, 964; also sec. 140, ante, p. 966; also sec. 141, ante, p. 966; also sec. 142, ante, p. 966. 73. Whether court will interferfere with the execution of discretionary power. Jones v. Jones, 8 Misc. 660 ; see Real Prop. L , sec. 137, ante, p. 964. 123 978 POWERS. 74. Capacity of person to take under instrument executing the power. Dana v. Murray, 133 N. T. 604 ; see Real Prop. L., sec. 159, ante, p. 973. 75. Rights and duties of purchasers. Rose V. Hatch, 135 N. Y. 437 ; Suarez v. DeMontigny, 1 App. Div. 494 ; Benedict V. Arnoux, 7 id. 1; (see Moore v. American Loan and Trust Co., 115 N. Y. 79). 76. Creditors — right of to compel execution of power. Matter of Gantert, 136 N. Y. 106 ; Wild v. Bergen, 16 Hun, 137 ; see Real Prop. L., sec. 137, ante, p. 964; sec. 139, ante, p. 965; sec. 145, ante, p. 967. 77. Whether grantees of power of sale, by the description in the instrument of conveyance, dedicated 'Other land to a public use. Eloomfield v. Ketcham, 35 Hun, 318. '78. Presumption as to the exercise of power. Mutual Life Ins. Co. v. Shipman, 50 Hun, 578 ; rev'd 119 N. Y. 834 ; Conklin v, IT. Y. El. R. Co., 76 Hun, 430. 79. Presumption that conditions have been complied with. Bissing v. Smith, 85 Hun, 564. 80. Reconveyance to grantor of power before execution thereof. Briggs V. Davis, 31 N. Y. 574. 81. Restraining unlawful execution of power. Butler V. Johnson, 111 N. Y. 304; Keller v. Ogsbury, 131 id. 363. 83. Execution of power suspending power of alienation. See Real Prop. L., sec. 158, ante, p. 973; Genet v. Hunt, 118 N. Y. 158 ; Dana V. Murray, 133 id. 604 ; Hillen v. Iselin, 144 id. 365. Execution in excess of the power. Hillen v. Iselin, 144 N. Y. 365. 83. Power of sale contained in mortgage. Lawrence v. Farmer's Loan and Trust Co., 13 N. Y. 300. A testator, by his last virill and testament, appointed three persons his executors, and authorized them, or the survivor of them, to sell and convey any part of his real estate, "in case they should find it proper or most fit in their opinion" to sell the same for the purpose of paying his debts. Two of the executors neglected to qualify, and never acted as such. The other executor duly qualified, and took out letters testa- mentary in his own name only, and subsequently sold and conveyed a portion of the testator's real estate for the purpose specified in the will. Construction : The power contained in the will was well executed, and the convey- ance was valid. It seems that the statute (2 R S., 109, sec. 55), which provides that where real estate is devised to executors to be sold by them, or is or- dered by any last will to be sold by them, and any of the executors neglect or refuse to qualify and act as such, the sale may be made by the executor or executors who take upon themselves the execution of the will, applies as well to discretionary, as to peremptory powers of sale. Taylor v. Morris, 1 N. Y. 341. VI. THE EXECUTION OF POWERS. 979 A testator by his will authorized his executors " to sell his real and personal estate in such parcels, at such times, and for such considerations as they should judge proper, for the purpose of discharging his debts and creating funds for the support of his family." After payment of his debts he directed the avails of his property to be equally divided among all his children. Before the testator's debts were paid, the husband of one of the daughters being indebted to the plaintiff, procured from the executors a conveyance of a portion of the real estate for the purpose of enabling him to mortgage it to secure the debt. Nothing was paid for this conveyance, but the husband agreed to disencumber the land by paying the mortgage, and then to reconvey to the executor, or in de- tault thereof, that the value of the land might be charged against his wife's distributive share in the estate. A bill was filed to foreclose the mortgage given by the husband and wife according to this arrangement Construction : The conveyance was not an execution of the power contained in the will and passed no title, and therefore the mortgage was not a lien upon the interests of the testator's other heirs in the premises. Under such a power it seems that a sale of the real estate by the ex- ecutor, for the purpose of distribution among the testator's children, could not be made until after the debts were paid, and the sale should then be absolute for money or funds capable of distribution according to the will. Alha v. DeWitt, 3 K Y. 276. As to power to mortgage under power to sell, see " Power to Mortgage, Lease or Pledge," p. 949. The objection could not be made, on appeal, that a power was not well executed, because the deed on its face showed that only a nominal consideration was received for the lands. That ground, if relied upon, should have been taken on the trial. Meakings v. Cromwell, 5 N. Y. 136. A power of sale contained in a will authorizing executors to sell all the testator's " fast estate," does not embrace lands which have been sold by contract by the testator, the purchase money being unpaid, and the title still remaining in him. The interest remaining in the vendor in such case is a right to the money due on the contract, which is not real but personal estate. Lewis v. Smith, 9 IST. Y. 502. By the common law, where a power was to be executed with the consent of third persons, the death of one of such persons before con- sent given, rendered the execution of the power impossible. This rule of law has not been changed by the revised statutes section 112 (1 R S. 735) is applicable to grantees of a power, not to third per- sons whose consent is requisite to its execution. 980 POWERS. Accordingly, where land was devised to a son for life and then to his heirs, with power to him to sell and convey the same, by and with the consent of his mother and brother, and she died without consenting, and the son afterwards, with the consent of his brother, sold and con- veyed the land ; held, that no title passed by virtue of the power. Barber v. Gary, 11 N. Y. 397. Although an executor appointed in this state can not act as such beyond our jurisdiction, he may convey land situate in another state where the power to do so is contained in the will. An executor or other trustee empowered to sell lands in his discre- tion, can not authorize an agent to contract for their sale. The power is a personal trust which can not be delegated, and a contract by an agent is void. But wbere such a contract has been executed by an agent, the prin- cipal may render it valid by ratifying it with full knowledge of the facts. In ratifying it he exercises the personal qualities essential to the due execution of the trust. Newton v. Branson, 13 N. Y. 587. Since the enactment of the statute (1 E. L. 374, sees. 5, 6 ; 2 R S. 545), directing the manner in which mortgaged premises shall be sold by virtue of a power, the sale must be at public auction after notice as prescribed by the statute to bar the right of redemption, notwithstand- ing the power is contained in the mortgage, and expressly authorizes the mortgagee on default to sell the premises at private sale to satisfy the debt. Lawrence v. Farmers^ Loan and Trust Co., 13 N. Y. 200. The Legislature, in the exercise of its tutelary power over the persons and property of infants and others under disability, may provide, by public or private acts, for converting real estate, in which they have vested or contingent interests, into personal property or securities, when necessary for their benefit, and may exercise this power as well in respect to the rights of persons in esse as to the contingent interests of persons yet to be born. Accordingly, an act of the legislature (ch 442 of 1853) is constitu- tional, authorizing the supreme court, upon the petition of the ces Beardsley v. Hotchkiss, 96 N. Y. 318 ; 5 N. Y. Stat, at Large, 311, 333. » Yanderzee v. Slingerland, 103 N. Y. 47, 54. VI. THE EXECUTION OP POWEES. 997 The doctrine that an earlier provision of a will is revoked by a later one. or by a codicil repugnant thereto, operates only so far as it is necessary to give the later provision effect ; and, so, does not apply where it is absolutely void. Aiistin v. Oakes, 117 IST. Y. 577, mod'g 48 Hun, 492. When by error of donee of a power, lands were conveyed to the hus- band, rather than to the husband and wife, a reformation of the deed was proper. Haach v. Weicken, 118 N. Y. 67. The provision of the Revised Statutes (1 E. S. 787, sec. 124), de- claring that " every instrument executed by the grantee of a power, conveying an estate, or creating a charge which such grantee would have no other right to convey or create, unless by virtue of his power, shall be deemed a valid execution of the power, although such power be not recited or referred to therein," was not intended to change then existing rules; and whenever, in addition to the power, the grantee has an independent interest in the property, whether legal or equitable, the rule of the statute does not apply, and the instrument will not be deemed an execution of the power, but only a conveyance of the inde- pendent interest. The will of S. devised his real estate to his wife as long as she should remain his widow, and upon her death or remarriage to their children. He made her executrix, and the will authorized her to make advances from the property, from time to time, in her discretion, to the children "for maintenance and support," and empowered her to mortgage, lease and dispose of such property for the purpose of carrying into effect the provisions of the will. The widow married and subsequently executed a mortgage on said real estate in her individual name to secure a loan. The mortgage contained no reference to the character of the mortgagor as executrix, or to the power to mortgage contained in the will. This mortgage was paid from the proceeds of a loan obtained from plaintiff upon a mortgage of the same property, executed by the widow indi- vidually and as executrix. In an action to foreclose the latter mort- gage, it appeared that plaintiff had knowledge that the purpose of the mortgagor was to pay the prior loan with the monej' borrowed ; such prior loan was procured for the benefit of the widow's second husband. Construction : Upon the marriage of the widow the fee of the real estate vested in the children, subject to the execution of the power of sale and to the widow's right of dower; the interest mortgaged must be restricted to the individual interest which the mortgagor had as dowress; although her dower right, while unassigned, did not give her a legal estate in the 998 POWEES. land, it was a legal interest and constituted property capable in equity of being sold, transferred and mortgaged by her. Mutual Ufe Ins. Go. V. Shipman, 119 K Y. 324, rev'g 50 Hun, 578. Distinguishing, Marvin v. Smith, 46 N. Y. 571. When power was conferred to sell lands, it was not properly executed by an exchange of the lands for other lands.' Woerz v. Bademacher, 120 N. Y. 62. In an action to compel specific performance of a contract for the purchase of land, plaintiS claimed title under a deed of sale upon fore- closure of a mortgage executed by R, the original owner, and under a deed by the executrix of the will of E. By said will the testator de- vised his residuary estate to his executrix, in trust, with power " to sell, dispose of or convey the same * * * in such manner as shall seem proper and best for the interest of his estate." A large deficiency arose upon the foreclosure sale for which judgment was entered against the estate of R. The conveyance by the executrix was in consideration of the release of this judgment and the payment of the sum of $50 ; the referee found that the price paid was an adequate consideration for the land. Construction : If the foreclosure sale, for any reason, failed to convey a valid title, any remaining interest in the land was subject to the power of sale ; the conveyance by the executrix was a valid execution of the power and conveyed a good title as against any persons who were not cut off by the foreclosure; plaintiff, therefore, had a valid title, such as the defend- ant was bound to accept, and the action was maintainable. Mutual Life Insurance Company v. Woods, 121 IST. Y. 302. O. died, leaving a will by which he disposed of all his estate. He au- thorized and directed S., his executrix, to sell all his real estate, except a portion specifically devised, within five years from the date of his decease, and at such time within that period as may seem best to her, and "in such portions or parcels, or all together as she may think best or most profitable," and from the proceeds to pay certain legacies. The use and possession of said realty, until its sale, with the rents and profits thereof, were given to S., and she was made the residuary legatee. In an action brought by legatees against S. in her individual capacity, the complaint alleged that she was cutting down and selling off timber from the real estate, and had done so to the extent of about $800 ; that ' An exchange of lands is justified under a power to sell lands and buy other land. Mayer v. McCune, 59 How. Pr. 78. VI. THE EXECUTION OF POWERS. 999 the commission and continuance of such acts have reduced the value of the realty and rendered doubtful the sufficiency of the e.state to pay plaintiffs their legacies, and that plaintiffs' interests as tenants in com- mon are threatened ; an injunctionwas asked for. Construction : No cause of action for equitable interference appeared on the face of the complaint, and it was properly dismissed ; the averments in the complaint were to the effect simply that defendant had been and was converting the realty into personalty by a sale, which she was autlior- ized to do under the will, and for the proceeds of the sale she was obliged to account as executrix. Keller v. Ogshury, 121 N. Y. 362. No estate or interest can be given or limited to any person by an in- strument in execution of a power which such person would not have been capable of taking under the instrument by which the power was granted. Dana v. Murray, 122 K Y. 604, 616. Citing, 1 R. S. 737, sees. 120, 129; Everett v. Everett, 29 N. Y. 39-78. Execution of power was invalid, as violating the statute against per- petuities. Dana v. Murray, 122 N. Y. 604, digested p. 461. It seems, that where, by a will, the exercise of a power of sale given to executors is postponed for the benefit of legatees or devisees, during the intermediate period, the execution of the power may be accelerated by the consent of the executors and all the person interested, they join- ing in the conveyance, provided they are sui juris and the convey- ance is not in contravention of any trust and is consistent with the sub- stantial purpose of the testator in creating the power. Kilpatrick v. Barron, 125 N. Y. 751, aff'g 54 Hun, 322. While the law recognizes the right of a testator to create by will powers of appointment and selection, and will sustain dispositions of property made pursuant thereto, although the testator did not designate the particular individuals in whose favor the power should be exercised, this right is subject to the limitation that the testator must designate the class of persons in whose favor the power may be exercised, with suffi- cient certainty so that the court can ascertain who were the objects of the power. A power to select beneficiaries from all the members of the commu- nity, or all corporations of a particular class, wherever they may exist, however numerous, is void for indefiniteness. The statute of powers presupposes that a power of selection must be so defined in respect to the objects that there are persons who can come into court and show that they are " designated as objects of the trust," 1000 POWERS. and demand the enforcement of the power as authorized by the statute. (1 E. S. 734, sec. 100.) Read v. Willmms, 125 K. Y. 560. TUden y. Green, 130 N. T. 29. 79-81. WiU of O'Hara, 95 id. 403, digested p. 598: see aTUe, pp. 8^3, 847. A wrong motive on the part of the executor in making the sale, and the misappropriation of the proceeds, would not defeat the purchaser's title. Hose v. Hatch, 125 K Y. 427, 428. Power was conferred upon executors, by giving a testimonial, to con- vert a life estate into an absolute title. The words of the gift to the executors were " unto my said executor or executors who shall consent to act or may survive." Held, that upon the death of all of the executors but one, the survivor had power to execute the prescribed testimonial. Viek v. Keelei; 129 K Y. 190, 191. The general rule is that to the due execution of a power there must be a substantial compliance with every condition required to preclude or accompany its eiercise. Han-is v. Slrodl, 132 N. Y. 392, digested p. 1010. (See cases cited.) A married woman executed a power of attorney to her husband em- powering him to sell and convey all lands belonging to her, and to exe- cute in her name, "all necessary or proper deeds, conveyances, releases, releases of dower and thirds, and rights of dower," for conveying any " right, title and interest, whether vested or contingent, ciioate or in- choate." The husband was authorized to sign the name of his wife to a deed conveying real estate owned by him, and so, to release her in- choate right of dower in the land. Wronkow v. Oakley, 133 N. Y. 505. The same rule applies to wills of personal property as is given in re- gard to realty by the provision of the statute of powers (1 R. S. 737, sec. 126), which provides that " lands embraced in a power to devise shall pass by a will purporting to convey all the real property of the testator, unless the intent that the will shall not operate as an execution of the power shall appear expressly or by necessary implication.' C. executed to plaintiff a deed of trust of real and personal property, with directions to pay to him the rents and income during his life, and upon his death to convey the property to such persons and in such shares " as shall be designated and appointed " by his last will, and in default of such appointment, to his heirs at law and next of kin. By his will, after giving a legacy, C. gave all the residue of his estate, real or personal, which he owned or was " in any manner entitled to," to L. Construction : This was a good execution of the power of appointment, and so, L. > Cutting V. Cutting, 86 N. Y. 322; Hutton v. Benkard, 93 id. 295. VI. THE EXECUTION OF POWERS. 1001 was eatitled to the trust estate. New York Life Ins. & Trust Go. v, Livingston, 133 N. Y. 125. Where a power is given to a donee to appoint property to " all, any or either " of several persons named, or to all, any or either of their lawful issue, the word "or," in the absence of any indication 6f a contrary intent, has a discretionary, not a substitutional, im- port The will of D. gave to M., his adopted daughter, certain real estate for life ; in case of her death " without leaving lawful issue," the testator gave to her power to devi.se or appoint by will the said real estate " to all or any or either " of his three sisters named, " or to all or any or either of the lawful issue" of said sisters "in such shares and propor- tions as she may think proper." In default of such devise or appoint- ment, the testator devised said real estate to his said sisters in equal proportion on the death of M. ; in case either of them died before M., "leaving lawful issue," the will provided that said issue should "take the share or part thereof which the parents of such issue would have taken if she had survived." The will contained a number of other devises, each to a beneficiary for life with remainder over to their " lawful issue," to be divided equally between them, if of equal degree of consanguinity, if not, the issue to take the share the parent would have been entitled to if living. All of the sisters died during the life- time of M., two of them leaving children and grandchildren. M. died without issue, leaving a will appointing a portion of the said real estate to four of the said grandchildren, whose parents were then living, and the balance to children of the deceased sisters. In an action to deter- mine the validity of the appointment to the grandchildren and to obtain a construction of the will of D., held (Follett, Oh. J., Haight and Brown, JJ., dissenting), that the words "lawful issue" in the provision creating the power were not limited to the children of said sisters, but included the grandchildren ; that conceding the same words used in th& devise over in case of a failure to appoint, embraced the children only, this did not control their interpretation as used in the grant of the power, and there was nothing in the context to restrict or qualify them as so used ; and that, therefore, the appointment was valid. Drake v. Drake, 134 N. Y. 220-1, aff'g 56 Hun, 590. Executors did not take any legal estate under the preliminary devise in trust to them of all of testator's property ; yet the trust, being an active one and enforceable as a power in trust, comprehended and subjected to its execution every disposable or realizable interest in the testator's estate. The power in trust had all the character of a trust, 126 1002 POWERS. and being designed for the purpose of efiectaating a trust, it was im- perative. Holly v. Hirsch, 135 K Y. 590, 596. Citing, 2'Sugden Powers, 158 ; 1 Perry Trusts, 248. Whenever a power or authority to sell is given by will to executors, ■without limitation and not in terms made discretionary, and its exercise is rendered necessary by the scope of the will and its declared pur- poses, the authority is to be deemed imperative and a direction to sell will be implied, provided the design and purpose of the testator is unequivocal and the implication so strong as to leave no substantial doubt, and his intention can not otherwise be carried out. (Scholle v. Scholle, 113 K Y. 261; Chamberlain v. Taylor, 105 id. 194.; Hobson V. Hale, 95 id. 598.) The exercise of such an imperative power of sale may be compelled in favor of any party lawfully entitled under the provisions of the will to the proceeds of the real estate when sold, and so, may be compelled by a creditor, whose debt is directed by the will to be paid, and for the satisfaction of which the personal estate proves insufficient. (1 K. S. 684, sec. 96.) J. died owing unsecured debts amounting to much more than the value of his personal estate ; by his will he directed the payment of all his just debts and funeral expenses by the executors and trustees. He then gave all his property, real and personal, to executors and trustees, upon certain specified trusts, with "full power and authority to sell and ■convey any and all " the real estate, Proceeding instituted under the provisions of the Code of Civil Procedure (sees. 2749, 2801) by a general creditor, to obtain payment of his debt, by a sale of real estate of the decedent Construction : The power to sell was imperative and the exercise of it might be compelled by the creditor; and, as the debtor had thus provided another remedy equally prompt and effective in its operation, the statutory remedy could not be resorted to. Matter of Gantert, 136 N. Y. 106, aff'g 63 Hun, 280. Scholle v. Scholle, 113 N. Y. 261 ; In re McComb, 117 id. 378; In re Bingham, 127 id. 296; In re City of Eoohester, 110 id. 159; Clift v. Moses, 116 id. 144; In re Powers, 124 id. 361, distinguished. Note. — "We are referred to many other cases where it has been held that a power of sale is not available for the payment of debts, but they are all cases where the power was either discretionary, or limited to some other specific purpose, or where it could not be exercised without breaking up or destroying the scheme of the will and frustrating the intention of the testator. (Kinnier v. Rogers, 43 N. "X, 531; VI. THE EXECUTION OF POWERS. 1003 SchoUe V SchoUe, mpra; Matter of McComb, 117 N. Y. 378; Matter of Bingham, 137 id. 296.)" (111.) When power is conferred by will upon an executor to sell real estate for the payment of debts, he may lawfully exercise it for the payment of an honest debt, in no way invalid or outlawed, owing to himself. O'Flynn v. Powers, 136 N. Y. 412. For election of beneficiaries to take land and defeat execution of power, see Mellen v. Mellen, 139 N. Y. 210, digested p. 910. Where a life tenant has power to sell for her support, she has the right to mortgage for that purpose. Swarthoui v. Eanier, 143 N. Y. 499. The donee of a special power given by will to appoint an estate is in- vested with an authority merely, and an appointment, so far as it transcends the power, is invalid. The execution of the power, however, will not be defeated because of some provision in the appointment made which is in excess of the power, when such provision may be eliminated without disturbing the general scheme. (See Alexander y. Alexander, 2 Yes. Sr. 644.) A general and unlimited power of appointment to be exercised in the future is not void, because under it the donee may, without depart- ing from the express language, attempt to create an illegal estate ; the legal effect of the power is simply to authorize the donee to do what is lawful. In this case the power was held not to be limited to the crea- tion of vested estates. Hilkn v. Iselin, 144 K Y. 865, aff'g67 Hun, 444. A mortgage executed under a power of sale was a valid lien. Bo- arty V. McDermott, 146 JST. Y. 296, digested p. 952. Power of sale — if essential to scheme of will, not defeated by executor's refusal to act. Boss V. Roberta, 2 Hun, 90. Discretionary power to executor to convey such portion to beneficiary at any time, when the executor should be satisfied tliat he would make prudent use of it. McLean V. McLean, 3 Hun, 395, ail'd 62 K. Y. 627. Power to executors to sell real estate was terminated by expiration of trust. Bruner T. Meigs, 6 Hun, 203. By the will, the testator appointed his wife executrix thereof, and autliorized her to sell and dispose of the real estate, if necessary, for the support and maintenance of the children. Her joining with the guardian of the minor children, in the deed of bargain and sale, delivered to the puichaser, pursuant to an order of court, the will tsing supposed to be lost, and no mention made thereof, must be deemed a valid exe- cution of tlie power of sale conferred by tlie will. (Per Learned, P. J., and Board- man, J.) Cole V. Qmrlay, 9 Hun, 493, afE'd 79 N. Y. 527. When the exercise of a discretionary power of sale will not be compelled. Oelston 7. Shields, 16 Hun, 143, aff'd 78 N. Y. 275. Power of sale to executor to pay debts — direction that it be executed within two years— when a creditor can compel a sale after the expiration of that time. Wild v. Bergen, WSnn, 127. By a codicil testator's wife was authorized to sell and dispose of any or all of the real estate, subject to the approval of each ano every of his heirs surviving at the 1004 POWERS. time of the sale. The personal estate was not sufficient for the payment of the legs- cies. The plaintiffs, legatees and grandchildren of the testator, joined with the widow and other heirs in a deed of conveyance of all the real estate to one of said heirs, and also executed another deed in which they approved and ratified the convey- ance. They were induced so to do by the representation, that it was necessary to exe- cute the papers in order to obtain funds for the payment of the legacies. No considera- tion was given by the grantee, and at the time of its execution none was expressed in the instrument, though one was subsequently inserted. The conveyance was not a proper execution of the power of sale, and plaintiffs might bring an action to have it set aside. Eoyt v. Eoyt, 17 Hun, 193, aff'd 85 N. Y. 143. Direction as to the time within which the trustees must sell— when the property does not revert to the grantors on their failure to sell within that time. Parsons v. JtTwdes, 23 Hun, 80. Dedication of land as a street— power of executors, having a power of sale, to dedi- cate land to the public use by the description used in conveying adjoining land. Bloomfleldv. Eetcham, 35 Hun, 318. When an administrator with the will annexed may execute powers and trusts conferred upon the executor by the testator. Matter of Baker, 36 Hun, 636. Power to sell real estate— when it may be exercised by an administrator with the will annexed— as to his power to execute a trust confided to the executor— sub- mission of controversy. Msh v. Ooster, 38 Hun, 64. How far the court will control the discretion vested in executors by the testator to exercise a power of sale. Sanaox v. Wall, 38 Hun, 314. Administrator with will annexed— right of, to execute power of sale given to the executor. Parel v. Keneally, 30 Hun, 15. Power of sale to executors — they can not convey with covenants of warranty and against incumbrances. Bamsey v. Wandell, 33 Hun, 483. Discretionary power of sale conferred upon an executor — this court can not ap- point, to exercise it, a successor to the one named by the testator. L. 1883, eh. 185. Matter of Bierbaum, 40 Hun, 504. A power of sale to executors must be executed by a trustee and not by the adminis- trator. Matter of Patton, 41 Hun, 498. Legacies were charged upon the real estate, and the sole surviving executor had power to sell the real estate to provide a fund from which to pay them. Anderson v. Davison, 43 Hun, 431. Construction of a power to dispose of property by will — when it will be deemed executed by the use of general language in the will of the devisee of the power. Tlwmas v. Snyder, 43 Hun, 14. Limitation of time for the exercise of a power of sale contained in a will — when a sale after the expiration of the time is valid. Waldron v. ScMang, 47 Hun, 358. A fraudulent exercise of a power of sale is void. Harty v. Doyle, 49 Hun, 410. The will of Peter K. Hogle gave two-thirds of his property in trust for his wife, Mary A. Hogle, during life, with power to the wife to dispose of the same as she might choose by will. The wife survived him and made her will by which, after giving some legacies, she disposed of some household furniture for the use of certain grandchildren, and also the use of all the residue of her property of every description for the maintenance of said grandchildren during their minority. There was no evi- dence that, aside from the household furniture, Mary A. Hogle had any considesable property. The general bequest, although not referring to the power, was a strong indication of the intent to execute the power unless the contrary was shown, and it must be presumed that, in this case, the testatrix intended to execute the power given VI. THE EXECUTION OF POWERS. 1005 to her by the will of her husband, as otherwise there was no property on which the general demise and bequest could operate. Hogle v. Hogle, 49 Hun, 313, 314. Power of sale to executors — what facts appearing of record show that a sale there- under was not made in good faith and is invalid. McPherson v. Smith, 49 Hun, 254. Presumption as to the exercise of a power of sale given by a will. Mutual Life Ins. Co. V. Shipman, 50 Hun, 578, rev'd 119 N. Y. 334. No reference to the statutory provision (1 R. S. 733, sees. 77-79) relating to powers is necessary in the instrument. When such a power is general and beneficial and changes an estate for life into a fee in respect to creditors and purchasers. Brown v. Farmers' Loan & Trust Go., 51 Hun, 386, afE'd 117 N. Y. 366. Power of sale of land — to be exercised as "deemed expedient and for the best inter- est of all my legatees " — not properly exercised where there is sufficient personal property to pay all the legacies — title acquired thereunder. Hovey v. Ohislwlm, 56 Hun, 328. Power of sale — when it survives the duration of the trust estate created by the will. Cusack V. Tweedy, 56 Hun, 617. When provisions of will will be held to execute a power of appointment given to the testatrix by the will of another person. KiUer v. Miller, 57 Hun, 14, afE'd 141 N. Y. 571. Widow's support — power of sale given to executors for that purpose — failure to exercise it — equitable relief after the widow's death. Allport v. Jerrett, 61 Hun, 447. Ratification — all donees must unite in exercising a discretionary power. Whitlock V. Washburn, 63 Hun, 369, 374. Will — deed by the grantee of a power — 1 R. S. 737, sec. 134 — testamentary power of sale — not frustrated by a deed purporting to be under an unauthorized sale. Pollock V. Eooley, 67 Hun, 370. WUl provided, "At the death of my wife I give fifty thousand dollars in such manner and form and to such person or persons as she, by her last will and testament, may direct, limit and appoint." The wife survived the testator, and at her death left a will in which she directed and appointed her executor to receive the sum referred to in the above provision of her late husband's will, and to invest the same and to pay one-fifth of the income to each of five several persons named, during their respective lives; and after the death of certain of such beneficiaries, she appointed other persons to receive their respective shares of income for life. The power of appointment was not limited to a direct and absolute gift, but permitted the wife, in exercising it in her will, to place limitations upon the absoluteness of the enjoyment within the restrictions prescribed by law. Maitland v. Baldwin, 70 Hun, 367. A deed from commissioners claiming to be appointed under a will partitioning cer- tain real estate, and evidence of possession thereunder for over twenty years, are sufBcient to create at least presumptive evidence of title to such real estate. Whether there is any power to partition or not, when an actual partition of real estate has been made and the parties have received deeds thereof and have acted thereon, such pirtitiou will be held valid and eilectdal, even though there are some irregularities in the proceedings for partition. Upon the execution of a power contained in a will the devise takes effect as though it was contained in the will conferring the power, and is not deemed to descend by virtue of the appointment contained in a will executed pursuant to a power of appointment contained in a previous will. Gonklin-v. N. T. Elevated B. B. Co., 76 Hun, 420. Scope of a power of sale of realty contained in a will— extended to the payment of debts and legacies. Matter of Bolton, 83 Hun, 2.i9, aff'd 146 N, Y. 357. Where the beneficiary under the power of sale is also vested as heir or devisee. 1006 POWERS. with the title of the real estate subject to such power, he may if competent, before the power has been exercised, convey the real estate, and thus defeat and annul the power of sale. Boberts v, Gary, 84 Hun, b38. Two years is an ample time within which to sell real estate under directions con- tained in a will Matter of Trams, 85 Hun, 420. Where persons are by certain instruments constituted trustees, or at least donees of powers in trust, and are given a power of sale, their execution of the same will be presumed to have been effectually made notwithstanding the existence in the grants of certain conditions which seem to limit their powers. Bissing v, 8mWi, 85 Hun, 564. Trusts— one dealing with a trustee must ascertain the limitation of his powers— where the written consent of the beneficiary is necessary to the assignment of a mort- gage-subsequent knowledge by the c«s!; wj'gMe <««< of its assignment is Insufficient. Suaree v. De Montigny, 1 App. Div. 494. Will— when a power to devise is not executed by the will of the donee of the power— when an intention not to execute the power is implied. 1 R. S. *737, sec. 136. Lockwood v, Mildeberger, 5 App. Div. 459. The will of James M. Conner provided as follows : "I hereby direct my executors and executor to distribute and apportion to my wife and children, viz., Josephine V. Conner, Eliza Conner, Charles S. Conner, Benjamin P. Conner, Alfred V. Conner and Archibald Conner, my estate, in such manner and time or times as shall, in their judgment, be for the best interest of my wife and children." The testator nominated his wife and three of his sons, one of whom was an infant, as his executors. Construction : The estate was left in equal shares to the decedent's wife and his six children. The term " manner " applied to the method of allotment ; a discretion was given as to the time when the money should be paid over, but not as to the quantity of the estate to be distributed to each beneficiary. It was not the intention of the testator to bring the estate within section 99 of 1 Revised Statutes, 734, relative to powers, and to allow the executors to allot the whole estate to themselves, to the exclusion of the other children. Matter of Gojiner, 6 App. Div. 594. Power of sale — improper exercise — dona fide purchaser — notice to and knowledge of one member of a firm binds the client — exception to the rule, — that a purchaser from a trustee need not concern himself with the disposition made by the trustee of the purchase price. Benedict v. Attwux, 7 App. Div. 1. A gift of property to trustees " to be used by them or the survivor of them either wholly or in such parts or shares as they or the survivor of them, in their or his dis- cretion, shall deem desirable for the benefit of the children" of a certain person, vests in the trustees a discretion as to the amount of principal or income to be used for that purpose, but gives them no discretion to withhold the benefit from any one or more of such children; whatever amount is used must be divided equally between all the children. A court of equity may interfere with the discretion vested in trustees, where they abuse such discretion or are acting in bad faith. The withholding of all income from one of the beneficiaries because he married against the wishes of the trustees, and from another because of a dispute with his mother as to his schooling, is an abuse of discretion and an act of bad faith. Jones v. Jones, 8 Misc. 660. Where the grantor provided that the instrument in execution of the power should he executed in the presence of two witnesses and only one was present, it did not VI. THE EXECUTION OF POWERS. 1007 render the whole transaction void, but was a defective execution which the court would supply in favor of a purcliaser for a valuable consideration. Sahenok v. Elling- wood, 3 Edw. Ch. 175. A provision that the trustee, in all dispositions of the property, should express the trust was merely directory, and the omission to do so did not affect the validity of a conveyance. Bradstreet v. Clarke, 13 Wend. 608. See, in addition to above cases. Matter of Vandevort, 8 App. Div. 341 (collusive sale); Correll v. Lauterbach, 14 Misc. 469 (consent of others to execution); Fargo v. Squiers, 6 App. Div. 485 (execution of power of appointment); Harper v. National Bank, 17 Misc. 221 (election of beneficiaries to take land); Stewart v. Keating, 15 id. 44 (execution of power of disposition by will); Metropolitan Trust Co. v. Seaver, 17 id. 466 (execution of power of appointment); Mason v. Mason's Exr's, 4 Sandf. Ch. 623, aff'd 13 Barb. 461 (discretion to increase an annuity). YII. DELEGATION" OF POWEES. See Real Property Law, sec. 126, ante, p. 890. See, also, " The Execution of Powers, ante, p. 977. Although an executor appointed in this state can not act as such beyond our jurisdiction, he may convey land situate in another state where the power to do so is contained in the will. An executor or other trustee empowered to sell lands in his discre- tion, can not authorize an agent to contract for their sale. The power is a personal trust which can not be delegated, and a contract by an agent is void.' But where such a contract has been executed by an agent, the prin- cipal may render it valid by ratifying it with full knowledge of the facts. In ratifying it he exercises the personal qualities essential to the due execution of the trust. Newton v. Branson, 13 N. Y. 587. Citing Berger v. DuflJ 4 Johns. Ch. 369. Testator may in his will delegate the power to select an executor. Testator nominated his wife as executrix and requested that such male friend " as she may desire be appointed with her as executor." Selection and appointment of such person was valid. Hartnett v. Wandell, 60 N. Y." 846, rev'g 2 Hun, 552. See Code of Civil Proc, sec. 2640. DeP. executed to his son's wife a deed containing words sufficient and appropriate to convey an absolute fee. The deed, however, declared that it was made by way of advancement to be charged 1 Berger v. Duff, 4 Johns. Ch. 369. 1008 POWERS. against the share of the son in the grantor's estate, and to enable the grantee to sell and convey in fee simple if she should desire so to do, and contained a covenant upon the part of the grantee, that upon sale by her she should cause the proceeds to be properly invested, and at her decease the premises or the principal realized from a sale, should be conveyed to the issue of her marriage with the grantor's son living at her death, or their legal representatives. The grantee died without having sold the real estate, but devised the same to her son, with power to her executor to sell and convey. Construction : The grantee took only a life estate, with remainder in fee to the issue of the marriage, with power in the grantee to sell and convey, whicli power was general, but neither imperative nor beneficial, but in trust to be exercised in the discretion of the donee ; and could not be delegated, but it and the trust terminated at donee's death and thereafter the fee went to the remainderman. Hence, any title from the executor was defective. Coleman v. Beach, 97 N. Y. 545. NOTB.— As to discretionary powers see pp. 964, 974. Note.— Tlie subject of the delegation of powers was considered in Crooke v. County of Kings, 97 N. T. 421. Earl, J., in the course of his opinion discussed the subject, and reviewed the decisions (p. 453 et seq). It is there stated as follows: " It is settled beyond controversy, that when the donee of a power has any discretion to exercise for the benefit of others, in the execution of the power, he must exercise such discretion, and the execution can not be delegated. But * * when there is no discretion to be exercised, where one person can execute the power as well as another, then its execution may be delegated. In such case there can be no reason for holding that the donee of the power must personally execute it.' * * In 4 Cruise's Digest, 257, it is said that a power of revocation and appointment can not be delegated to another, for it is a maxim of law that " delegatus non potest delegare! " but it is said that "this doctrine is, however, confined to that part of the execution of a power in which confidence and discretion are exercised." See, also, the opinion of Finch, J. ' See, also, Mayor v. Stuyvesant, 17 N. Y. 42. • See further, "Whitlock v. Washburn, 62 Hun, 369; Real Prop. L., sec. 163, post, p. 1017; Trusts, whether the trust duty is annexed to the office or the person, ante, p. 718; Chaplin's Express Trusts and Powers, p. 476. Tin. QUALIFIED POWERS. See cases involving limitation and restriction of powers, ante, p. 975. By the common law, where a power was to be executed with the consent of third persons, the death of one of such persons before con- sent given, rendered the execution of the power impossible. This rule of law has not been changed by the revised statutes.' Sec- tion 112 (1 R S. 735) is applicable to grantees of a power, not to third persons whose consent is requisite to its execution. Land was devised to a son for life, and then to his heirs with powei* to him to sell and convey the same, by and with the consent of his mother and brother; she died without consenting, and the son after- wards, with the consent of his brother, sold and conveyed the land. Construction : No title passed by virtue of the power. Barber v. Gary, 11 N". Y. 397. 1. The rule has been changed by Real Prop. L., sec. 154, ante, p. 971. For general rule see also Real Prop. L., sec. 153, ante, p. 970. Power of disposal — qualified. Terry v. Wiggins, 47 N. Y. 512, digested p. 95. See decisions collected under "Effect of powers in creating a fee," p. 93 etseg.; also p. 955 et seq. A condition attached to a power of sale contained in a trust deed, that the trustee shall only sell by and with the consent of the grantor, to be manifested by his uniting in the conveyance, is valid. It is an essential condition and can not be dispensed with. If no provision is made for the execution of the power in case of the death of the grantor, it is extinguished by such death. Kissam v. Dierhes, 49 N. Y. 602. Note. — See Note 1 to Barber v. Gary, UN. T. 397, digested above. Power of appointment, qualified by condition that it should be exercised only in case of failure of issue. Vernon v. Yernon, 53 N. Y. 351, digested p. 927. Qualified power of sale. Ackerman v. Oorlon, 67 K Y. 63, digested pp. 96, 301. Consent of beneficiary of power to execution when necessary. Onon- daga Trust and Deposit Co. v. Price, 87 N. Y. 542, digested p. 906. A power to devise in case the grantee married gave a conditional power of diposition. Loiu v. Harmony, 72 N. Y. 408. 127 (1009) 1010 POWEBS. V, died seized of certain premises, leaving a widow and three chil- dren, all of age, surviving him. By his willl he gave to his widow all of his estate during life, or until she should remarry. Should she re- marry, the executors were directed to sell all of the estate, pay one- third of the proceeds to her and divide the residue equally among the children, the children of any child who may have died to receive the parent's share. Upon the death of the wife without having remarried, the property was directed to be divided equally among the testator's children, the children of a deceased child to receive their parent's share. Full power was given to the executors to sell and convey the real estate " whenever they may deem it best to do so, and upon such terms as they may think desirable." The widow and children united in a conveyance of the premises to defendant, who contracted to sell the same to plaintiff. Defendant tendered a deed, executed by himself, which plaintiff refused to accept In an action for specific performance, •or, in case it could not be had, to recover back the purchase money paid, defendant produced a deed, executed by the executors, which re- cited that the consideration stated was the same as that stated in the deed of the widow and children. It was not claimed that any portion of the consideration was paid to the executors as such. Construction : The first deed simply conveyed a title, subject to be defeated in part by the death of one of the children prior to the death or remarriage of the widow ; nothing remained for the executors to convey but the fu- ture contingent interests of the grandchildren, and this, under the power of sale, they could only so sell and convey as to secure the proceeds to the grandchildren in case of the contingency happening making them the ultimate devisees ; the deed executed by them was not a valid exe- cution of the power, and, therefore, the defendant did not have a marketable title. Harris v. Strodl, 132 N. Y. 392. Note. — What defense could he (plaintifl) make to the claim of the grandchildren if, as is not improbable, they become the testator's devisees? (McMurray v. McMurray, 66 N. Y. 175.) The question is an important one. The general rule is that to the due execution of a power there must be a substantial compliance with every condition required to precede or accompany its exercise. (Allen v. DeWitt, 3 N. Y. 276; Roome v. Phil- lips, 27 id. 357; Russell v. Russell, 36 id. 581; Adair v. Brimmer, 74 id. 539; Syra- cuse Savings Bank v. Holden, 105 id. 415.) Two cases recently before this court under the same will illustrate both the valid and the invalid execution of a power much like the one before us. (Scholle v. SchoUe, 118 N. Y. 261; Mutual Life Ins. Co. v. Woods, 131 id. 303.) It may be that the grandchildren will never take under the will, or if they should, that a satisfactory answer to the question we have suggested could be made. But VIII. QUALIFIED POWERS. 1011 the purchaser is entitled to a marketable title. He should be protected against the risk suggested. (Moore v. Appleby, 108 N. Y. 241; Meth. Epis. Ch. v. Thompson, 13 N. Y. S. R. 130.) (397.) By an antenuptial agreement, S., in contemplation of the marriage, conveyed to a trustee certain lands, tlie trustee to pay to her the rents and profits, or at her election to permit her to hold and use the lands during her life, and upon her death to convey them as she, by deed, appointment or will, "should order, direct or appoint" S. retained possession until her death. Construction: The antenuptial conveyance did not create a trust within the mean- ing of the statute of uses and trusts (1 E. S. 728, sec. 55), as the power of the trustee to receive and apply the rents and profits was dependent on the election of S., and she exercised the right reserved by her to her- self to take and hold the property ; no title vested in the person named as trustee (1 E. S. 727, sec. 47; id. 728, sec. 49; id. 729, sec. 58), and, therefore, the premises were held and owned by S. at her decease. Wainwright v. Low, 132 N. Y. 313, aflE'g 57 Hun, 386. An expression of the testator's expectation and desire that his wife should not dispose of any of the estate by will in such a way that the whole that might remain at her death would not go out of his "own family and blood relatione " This was but the expression of the testa- tor's expectation and desire and did not qualify a power of disposition given wife. Matter of Gardner, 140 N. Y. 123, digested p. 114. A purchaser of land from a trustee with power to convey only on the happening of an event, which is a condition precedent, must ascertain at his peril whether the con- dition has been fulfilled. And this is so, even although the deed recites performance of the condition. It is otherwise, under a condition subsequent, under 1 R. S. 730, sec. 66. Accordingly, where trustees had power to sell only in case there should be a de- ficiency of income for certain purposes, and conveyed, reciting the condition and a deficiency under it, field, that their conveyance was void, it appearing there was in. fact no such deficiency.' To justify a sale the trustee should state an account and show a deficiency in point of fact. An offer to show payments of portions of the income, without going this length, is insufficient. Oriswold v. Perry, 7 Lans. 98. The testator authorized his executors to sell his real estate whenever they and his wife (his executrix), unanimously thought that such sale would be advantageous to her estate. After the decease of his wife, his surviving executors were authorized to sell the real property. Hovse v. Saymond, 3 Hun, 44. The will of a testator contained the following power of sale : " I do hereby give to my executors and trustees (the plaintiff and the testator's widow), full and complete power to sell and dispose of my said real estate at such time, in such manner and on See Anderson v. Davjson, 43 Hun, 431. 1012 POWERS. such terms as they shall jointly consider beneficial and for the interest of my estate, with full power to convey by deed jointly and not singly, as I might or could do if living " This power ended upon the death of the testator's widow, at which time the trust estate to which the power was annexed terminated. Section 2642 of the Code of Civil Procedure does not prevent a testator from plac- ing such limitations on the exercise of powers granted by him as he may deem fit. It merely prescribes a rule applicable in the absence of directions by a testator to the contrary. Herriott v. Prime, 87 Hun, 95. IX. DUEATION AND EXTINGUISHMENT OF POWERS. (1.) As to extinguishment by revocation ; see Real Prop. L., sec. 128, ante, p. 891. (2.) See Duration and termination of an express trust, ante, p. 692 ; see note under sec. 162 (Real Prop. L.), post p. 1019. (3.) See Power of sale, (irafe, p. 901; also Equitable conversion, ante, p. 917. t4.) See The execution of powers, ante, pp. 975. (5.) See Qualified powers, ante, p. 1009. (6.) See Powers extinguished by the death of the donee. Real Prop. L., sec. 1^, post, p. 1019. 1. Death of person whose consent was required to the execution. Kissam v. Dierkes, 49 N. T. 602 ; Phillips v. Davies, 92 id. 199. 3. Termination of trusts ; Brunner v. Meigs, 64 N. Y. 506 ; Phillips v. Davies, 93 id. 199 ; Cussack v. Tweedy, 126 id. 81. 3. Failure of trust upon which power is dependent. Benedict v. Webb, 98 N. Y. 460. 4. Sale of land by beneficiary, or election to keep the same. Hetzel V. Barber, 69 N. Y. 1. 5. Power surviving death of cestui que trust. Phillips V. Davies, 92 N. Y. 199 ; Cussack v. Tweedy, 126 id. 81. 6. Failure or accomplishment of purpose of powers. Sweeney v. Warren, 127 N. Y. 426. 7. Power for benefit of life tenant as well as remainderman survives death of latter. Cotton V. Burkelman, 142 N. Y. 160. 8. Power surviving death of life tenant. Millspaugh v. YanZandt, 55 Hun, 463. 9. Birth of posthumous child. Smith V. Robertson, 89 N. Y. 555. Provision that grantee of power shall only sell with consent of grantor power ; if unexecuted, is extinguished by grantor's death, Kissam v. Dierhes, 49 N. Y. 602. See to same efEect, Barber v. Cary, 11 N. Y. 397. The rule is changed by Real Prop. L., sec. 154, ante, p. 971. IX. DURATION AND EXTINGUISHMENT or POWERS. 1013 When the power is in terms restricted and limited in point of time to the continuance of respective trusts, the ending of the trust ends also the power. Brunner v. Meigs, 64 N. Y. 506. See Cussack v. Tweedy, 136 N. Y. 81, 88. A power vested in executors to sell " if they should deem it ex- pedient for the purpose of making such division * * * or for carrying into eSect all or any of the purposes of the trust," is, at least so far as vested for the purpose of making the distribution, dependent upon the validity of the trust and falls with it Benedict v. Webb, 98 N. Y. 460. See Suspension of power of alienation, p. 373, et seq. As to ■whether power falls with void limitation, see Robert v. Corning, 89 N. Y. 325 ; Fowler v. IngersoU, 127 id. 472; Garvey v. McDevitt, 73 id. 556, 562 ; McCready v. Mut. Life Ins. Co., 83 Hun, 526, afiE'd 148 N. Y. 761. A power to sell land can only be exercised in the manner and for the precise purpose declared and intended by the donor; when the purpose becomes wholly unattainable the power ceases, although the purpose is defeated by the voluntary act of the one to be benefited by the creation of the power. Devise of land to husband and two daughters in equal thirds, with authority to husband to sell and direction to invest and keep invested from the proceeds of sale the daughter's portions, to be paid them with accumulations of interest when they severally reached the age of twenty- five years. Oonstruction : The power of sale of one-third given her husband was merged in fee thereof.' The daughters took an absolute fee of two-thirds, subject to the exe- cution of the power,' which was a power in trust.' The accumulation was valid only until the daughters respectively ar- rived of age. After the daughters became of age they conveyed their interests. This conveyance extinguished the power.* Heizel v. Barber, 69 N. Y. 1, rev'g, in part, 6 Hun, 534. Note 1. — By the will the trustee would retain and invest the principal until the period of distribution. R. S., pt. 3, ch. 5, tit. 4, sees. 3, 4; Harris v. Clark, 7 N. Y. :242; WUliams v. Williams, 8 id. 524; Kilpatrick v. Johnson, 15 id. 322. Note 2.— The general rule is that persons entitled to the money from lands directed to ■fae converted into money by the exercise of a power conferred upon another, may upon ' 4 Kent's Com. 348; 1 R. 8. 783, sees. 83, 85. 'Reed v. Underhill, 12 Barb. 113; Crittenden v. Fairchild, 41 N. Y. 289. «R. S., pt. 2, ch. 1, tit. 2, art. 3, sees. 77, 94. ^Jackson v. Jansen, 6 J. R. 73; Sharpstein v. Tillou, 3 Cow. 651. 1014 POWEES. coming of lawful age, elect to take the land itself, if the right of others will not be affected. Leigh & Dalzellon Bq. Cas. 177 (5 Law Library, 89); 1 Story's Eq. Jur. sec. 793; Crabtree v. Bramble, 3 Atk. 680; Seeley v. Jago, 1 P. Wms. 389; Craig v. Leslie, 3 Wheat. (U. S.) 577; Smith v. Starr, 3 Whart. 62, 65; Burr v. Line, 1 id. 353, 265; Stuck v. Mackey, 4 Watts. & Serg. 196; Mandlebaum v. McDonell, 29 Mich. 78. Note 3.— See, for cases involving the failure of a power through the sale of the land by the beneficiaries, or their election to take the land. Prentice v. Janssen, 7& N. Y. 478, digested p. 939; Armstrong v. McKelvey, 104 id. 179, digested p. 909; Parker v. Linden, 113 id. 28, digested p. 936; Mellen v. Mellen, 139 id. 210, digested p. 910. See cases gathered thereunder. McDonald v. O'Hara, 144 id. 566, digested p. 914; Purdy v. Wright, 44 Hun, 339; Matter of McCaffrey, 50 id. 371; Roberts v. Gary, 84 id. 338, digested p. 917 ; Harper v. Chatham Nat. Bank, 17 Misc. 321; Smith V. Farmer's T. Co., id. 311. Power may be terminated by birth of a posthumous child for whom no provision has been made in the will. Smith v. Bdbertson, 89 E*. Y. 555. M., when she made her will, and at her death, owned a large amount of real estate but only a small amount of personal property. She pro- vided by her will for the payment of debts, first gave her real and per- sonal estate to her executors in trust, to rent, etc., and apply the rents, income, etc., to the use of her husband during life. Then followed ten clauses purporting to create separate and independent trusts, also numerous legacies, all of which would substantially fail in the absence of a trust estate or power in trust vested in the executors, by force of which the real estate could be sold and converted into money. Certain real estate was also specifically devised, and the executors were directed to pay off incumbrances thereon, which, in the absence of such power, could not be done. The clause appointing executors provided " and during the lifetime of my said husband my said executors, and such and whichever of them as shall act, are authorized and empowered, by and with the consent of said husband, to sell and dispose of any part of my estate, real and personal, not specifically bequeathed." Construction : The said clause conferred on the executors a power of sale, which during the husband's life could be exercised only by his consent, but thereafter continued to exist, so that the executors might convert inta money so much of the real estate as was not specifically devised. Phillips V. Davies, 92 N. Y. 199. L., by his will, gave his residuary estate to his executors in trust, creating four separate trusts for the benefit of his children, each cover- ing an undivided one-fourth of said residue, the income of the fourth set apart for each child to be paid to him or her during life, and upon his or her death the executors to convey such share with any unapplied IX. DUEATION AND EXTINGUISHMENT OP POWERS. 1015 income to such ctild's issue. By a subsequent clause of the will the executors and the survivors and survivor of them were authorized at any time or times to sell and dispose of the whole or any part of the estate, and in the meantime to collect and receive the rents. The con- tract in question was made after the death of one of the testator's chil- dren. A deed of the sole surviving executor was tendered to the pur- chaser and rejected. Construction : Such deed was effectual to convey a good title ; the power of sale conferred upon the executors did not terminate on the death of one of the cestui que irusient, but survived ; the will authorized the trustee, holding as to an ended trust in the character of a tenant in common, to retain and exercise the 4)ower of sale and receive rents until final sev- erance and distribution. Oussack v. Tweedy, 126 N. Y. 81, aff'g 56 Hun, 617. Citing, Trower v. Knightley, Madd. & Geld. 134; Taite v. Swinstead, 36 Beav. 535. Where a testator authorizes his executor to sell and convert into money all or a part of his realty for a specific purpose, which fails or is accomplished without a conversion, the power is extinguished and the land can not be sold by virtue of it or treated as personalty, but de- scends to his heirs, unless it is devised. Sweeney v. Warren, 127 N. Y. 426, aff'g 52 Hun, 246. Citing, Wood v. Keyes, 8 Paige, 365; McCarty v. Terry, 7 Lans. 336; Jackson v. Jansen, 6 Johns. 73; Sharpsteen v. Tillou, 3 Cow. 651; Bogert v. Hertell, 4 Hill, 493; Hetzel v. Barber, 69 N. Y. 1; Read v. Williams, 135 id. 560; Hill v. Cook, 1 Ves. & B. 175; Chitty v. Parker, 3 Ves. 371; Taylor v. Taylor, 3 DeG., M. & G. 190; Leigh & D. Conv. 93; Lewin on Tr. (8th ed.) 149, 953. The will of 0. gave to his wife all of his property during life, charg- ing upon it the support of his mother. The wife was made sole execu- trix with full power to sell and dispose of any part of the real estate in her discretion and to invest the proceeds as she might deem best for the benefit of M., their adopted daughter,, to whom the remainder in fee was given. M. died after the death of the testator, leaving a son surviving. Thereafter the executrix contracted to sell and convey a portion of the real estate of which C. died seized. An action to com- pel specific performance of the contract. Construction : The power of sale was not given for the benefit of the remainderman simply, but its chief purpose was the benefit and safety of the life ten- ant ; and so, the power was not extinguished by the death of M. and 1016 POWERS. the deed of the executrix was sufficient to carry the fee. OoUon V. Burhelman, 142 N". Y. 160. Distinguishing, Sweeney v. Warren, 127 N. T. 434. "When power of sale did not cease from failure to exercise it in the lifetime of life tenant. MUlspaugh v. VanZandt, 53 Hun, 463. X. VOID POWERS. Powers may be void, 1; Because they create an undue suspension of the power of aliena- tion, etc. Benedict v. Wehb^ 98 N. Y. 460; see this case with annota- tions under Duration and extinction of powers, ante, p. 1013. See also Garvey v. McDevitt, 72 N. Y. 556 ; Robert v. Corning, 89 id. 225 ; Van Brunt v.,VanBrunt, 111 id. 178; Booth v. Baptist Church, 126 id. 315; Matter of will of Butterfleld, 133 id. 473; Haxtun v. Corse, 2 Barb, Ch. 506 ; McSorley T, Leary, 4Sandf. Ch. 414 ; see, ante, pp. 374, 396. 2. Becuse they are too indefinite, and incapable of execution. Swee- ney V. Warren, 127 N. Y. 426 ; Tildm v. TUden, 130 N. Y. 29. See, ante, p. 892, note, 2. See Beneficiary, p. 821 ; Charitable uses, p. 847 ; but section 162 of the Real Property Law makes section 93 of the Real Property Law, ante, p. 847, applicable to powers, and it may be that hereafter it will be no objection to a power that it is indefinite. 3. Because of birth of a posthumous child not provided for in will. Smith V. Robertson, 89 N. Y. 555. XL VACANCY CAUSED BY DEATH, ETC., OP GEANTEE. Real Prop. L., sec. 162. "Sections applicable to trust powers. — Sections ninety-one to ninety -three of this chapter, both inclusive, in relation to express trust estates, and the trustee thereof, apply equally to trust powers, however created, and to the grantees of such powers." 1. R. S. 734, sec. 103 (repealed by Real Prop. L., sec. 300) rendered the provisions of the statute of uses and trusts from sec. 66 to sec. 71, both inclusive, applicable as in the above section of Real Prop. Law. This included section 66, now section 88, relating to "Person paying money to trustee protected ;" section 67, now section 89, " When estate of trustee ceases ;" section 68, now section, 91, " Trust estate not to descend ;" sections 69, 70, 71, now section 93," Resignation or removal of trustee and appointment of successor.'' The Revised Statutes, sec. 103, omitted words "estate" and " however created." The following statutes and suggestions may be consulted upon the subjects involved in section 162. (1.) Real Prop. L.. sec. 91. "Trust estate not to descend. — On the death of the last surviving or sole trustee of an express trust, the trust estate shall not descend to his heirs nor pass to his next of kin or personal representatives ; bnt in the absence of a contrary direc- tion on the part of the person creating the same, such trust, if unexe- cuted, shall vest in the supreme court, with all the powers and duties of the original trustee, and shall be executed by some person appointed for that purpose under the direction of the court, who shall not be ap- pointed until the beneficiary thereof shall have been brought into court by such notice in such manner as the court or a justice thereof may direct." This section supersedes 1 R. S. 730, sec. 68, repealed. See this section with pertinent decisions, p. 837-843. (2.) Real Prop. L., sec. 92. " Resignation or removal of trustee and appointment of successor. — The supreme court has power, subject to the regulations established for the purpose in the general rule of practice. "1. On his application by petition or action, to accept the resignation of a trustee, and to discharge him from the trust on such terms as are just "2. In an action brought, or on a petition, presented by any person in- terested in the trust, to remove a trustee who has violated or threatens to violate his trust, or who is insolvent, or whose insolvency is appre- hended, or who for any other cause shall be deemed to be an unsuitable person to execute the trust. "3. In case of the resignation or removal of a trustee, to appoint a new trustee in his place, and, in the meantime, if there is no acting trustee, 138 (1017) 1018 POWERS. to cause the trust to be executed by a receiver or other officer under its direction. This section shall not apply to a trust arising or resulting by implication of law, nor where other provision is specially made by law, for the resignation or removal of a trustee or the appointment of a new trustee." This section supersedes IRS. 730, sees. 69, 70, 71 ; 1 R. S. 731, sec. 72, repealed. See this section, with pertinent decisions, pp. 841-3; see, also, pp. 837-41. (3.) Real Prop. L, sec. 140. "Execution of power on death of trustee. — If the trustee of a power, with right of selection, dies leaving the power unexecuted, its execution must be adjudged for the benefit, equally, of all the persons designated as beneficiaries of the trust." This section supersedes IRS. 734, sec. 100, repealed. See this section, with pertinent decisions, p. 969. (4.) Real Prop. L., sec. 141. " When power devolves on court- Where a power in trust is created by will, and the testator has omitted to designate by whom the power is to be executed, its execution de- volves on the supreme court." This section supersedes 1 R S. 734, sec. 101. See this section, with pertinent decisions, p. 966. (5.) Real Prop. L., sec. 93. "Grants and devises of real property for charitable purposes. — A conveyance or devise of real property for religious, educational, charitable or benevolent uses, which is in other respects valid, is not to be deemed invalid by reason of the indefinite- ness or uncertainty of the persons designated as the beneficiaries there- under in the instrument mating such conveyance or devise. If in such instrument, a trustee is named to execute the same, the legal title to the real property granted or devised shall vest in such trustee. If no person is named as trustee, the title to such real property vests in the supreme court, and such court shall have control thereof. The attorney- general shall represent the beneficiaries in such cases and enforce such trusts by proper proceedings." See Laws of 1893, ch. 701, not repealed. See this section, with discussion and decisions, at p. 847 et seg. (6.) Code of Civil Procedure, sec. 2613. — "When letters of adminis- tration with the will annexed are granted, the will of the deceased shall be observed and performed ; and the administrators, with such will, have the rights and powers and are subject to the same duties as if they had been named executors in the will." See 2 R. S., 73, sec. 33, repealed. (7.) Real Prop. L., sec. 146. "Execution by survivora — Where a power is vested in two or more persons, all must unite in its execution ; XI. VACANCY CAUSED BY DEATH, ETC., OF GRANTEE. 1019 but if, before its execution, one or more of such persons dies, the power may be executed by the survivor or survivors." 1 R. 8. 785, sec. 113 (repealed by Real Prop. L., sec. 300), was substantially the same. Code of Civil Procedure, sec. 2642. * * * "And where any powers to sell, mortgage or lease real estate, or any interest therein, are given to executors as such, or as trustees, or as executors and trustees, and any such persons as executors shall neglect to qualify, then all sales, mortgages and leases under said powers made by the executors who shall qualify, shall be equally valid as if the other executors or trustees had joined in such sale." 2 R. S. 109, sec. 55 (sec. 55, title 4, ch. 6, part 2, R. S.)— "Where any real estate or any interest therein, is given or devised by any will legally executed, to the executors therein named, or any of them, to be sold by them or any of them, or where such estate is ordered by any last will to be sold by the executors, and any executor shall neglect or refuse to take upon him the execution of such will, then all sales made by the executor or executors, who shall take upon them the execution of such will, shall be equally valid, as if the other executors had joined in such sale." ' See above sections, with annotations, at pp. 967-8. ( 8. ) The court has no power to appoint a person to execute a power, where it appears, that it was intended by the grantor of the power that no other person than the grantee named by him should execute it.' In re Bierbaum, 40 Hun, 504. Tilden v. Green, 54 id. 231, aS'd 130 N. Y. 29. See decisions collected under "Whether the trust duty is annexed to the person or the office, " p. 718-727. See also pp. 964, 977. ( 9. ) The question often arises, whether the power was conferred on the person appointed executor or trustee, in his individual capacity, or in his official capacity as executor or trustee. It may be necessary to de- cide this in order to determine whether the power survives the death, or resignation of the grantee of the power or his refusal to act, and if it does so survive, in what capacity his successor may exercise it. As stated under subdivision (8 ), supra, the power given to a person may be so purely discretionary that another may not be allowed to exercise it. But if otherwise, if a successor may be appointed, must he be a person appointed by the court for that purpose, or may the adminis- trator with the will annexed exercise the power? The statute (Code of Civil Procedure, sec. 2613, superseding 2 R. S. 72, sec. 22), gives an administrator with the will annexed, " the rights and powers," and sub- > Hull V. Hull, 24 N. Y. 647, digr. p. 719 ; Bain v. Matteson, 54 id. 663, dig. p. 719 ; Coleman v. Beach, 97 id. 545, dig. p. 994; Lahey v. Kortright, 133 id. 450, 456-7, dig. p. 737. 1020 POWERS. jects him to the same duties, as if he " had been named " executor in the will. But this has been construed to refer to the " distinctive duties of an executor as such." ' So that the inquiry, whether the power was intended to be given to the executor as such, is not helped by the stat- ute. If the power was given to the executor as such the statute merely enables the administrator with the will annexed to exercise it. The courts have naturally differed in determining the power of an adminis- trator with the will annexed in this regard. Nevertheless some general rules have been stated. It has been said :' "When the will gives a power to the donee in a capacity distinctively different from his duties as executor, so that as to such duties he is to be regarded wholly as trustee and not at all as executor; and when the power granted or the duty involved imply a personal confidence reposed in the individual over and above and beyond that which is ordinarily implied by the selection of an executor, there is no room for doubt or dispute. In such case the power and duty are not those of executor, virtute officii, and do not pass to the administrator with the will annexed. But outside of such cases the instances are numerous in which, by the operation of a power in trust, authority over the real estate is given to the executor as such, and the better to enable him to perform the requirements of the will. It will not do to say, in the present state of the law, that when- ever a trust or trust power is conferred upon executors, relating to real estate, some personal confidence distinct from that reposed in executors is implied. An executor is always a trustee of the personal estate for those interested under the will. "We have recently so decided where the trust character could only be derived from the office and its rela- tion to rights claimed through it' * * We have no doubt, there- fore, that when a power of sale is given to executors for the purpose of paying debts and legacies, or either, and especially when there is an equitable conversion of land into money for the purpose of such payment and for distribution, and the power of sale is imperative and does not grow out of a personal discretion confided to the individual, such power belongs to the office of executor, and, under the statute, passes to and may be exercised by the administrator with the will annexed." * So in numerous cases it has been held that the administrator with the will annexed could exercise the power.' In many other cases it has been ' See opinion in Mott v. Ackerman, 92 N. Y. 539, dig. p. 731. ^Mott V. Ackerman, 92 N. Y. 539. » Wager v. Wager, 89 N. Y. 161. *In the same connection see the opinion given in Greenland v. Waddell, 116 N. Y. 234, when it was held that trustees could not be appointed to execute the duties imposed on the executor. >See cases, ante, p. 718-727. See also "The Execution of Powers," p. 977. XI. VACANCY CAUSED BY DEATH, ETC., OF GRANTEE. 1021 held that the power could only be exercised by a trustee, as in the case of discretionary powers given to executors. ' ■So new trustees are properly appointed to execute a power when the power is giVen to the executors in trust." The question of the capacity in which the grantee of the power should execute the duty has a bearing upon his commissions. See Commissions ; also upon the formal manner in which the power should be executed.' 'Cooke V. Piatt, 98 N. Y. 35; Matter of Blauvelt, 131 id. 349; Matter of Bierbaum, 40 Hun, 504, dig. ante, p. 721, note. This is recognized in other cases, Mott v. Ackerman, 93 N. Y. 553; Greenland v. Waddell, 116 id. 284; Royce v. Adams, 133 id. 402, dig. p. 726. 2 Dunning v. Ocean Nat. Bank, 61 N. Y. 497, dig. p. 719; Farrar v. McCue, 89 id. 139, dig. p. 720; Royce v. Adams, 128 id. 403, dig. p. 736; Lahey v. Kortright, 183 id. 450; Kortright v. Storminger, 49 Hun, 349, dig. p. 731. See opinion in Greenland v. Waddell, 116 N. Y. 334, given at p. 735. »8ee Roome v. Philips, 37 N. Y. 357, dig. p. 981.