Hawley & King v. James

5 Paige Ch. 318, 1835 N.Y. LEXIS 233, 1835 N.Y. Misc. LEXIS 98

• Court: New York Court of Chancery
• Decided: July 21, 1835
• Status: Published

Opinion

The Chancellor.

In disposing of the various questions' which must necessarily be decided in this cause, I shall not examine them precisely in the order in which they were discussed by either of the counsel at the hearing. For convenience, however, I shall examine several of those questions in the order of thy arrangement of the points made, for the closing argument, by (he attorney general of the United States, as counsel for the executors and trustees who were complain ants in the original suit.

The original bill sets out the will at large; and tile cóffl'»'plainants pray for such instructions and directions in relation5 to the questions which have already arisen, and to the various trusts and provisions of the will, as may be necessary to enable the executors and trustees to execute their trust with safety to themselves, under the protection of a decree of this court. It would seem, therefore, that the decision of the questions presented by the original bill must necessarily involve an inquiry as to the validity of the accumulations of the profits or income of the estate, which were evidently contemplated by the testator, and of the ultimate disposition of the trust estate; as well as the validity of the general devise in trust to the executors and trustees. Indeed, I cannot see how it would be possible for the court to make a decree which could enable the trastees, with safety to themselves, to discharge that part of the trust which relates to the investment of the personal prop*erty, and the- proceeds of the real estate which they are directed to sell, without first deciding the questions as to what part of the trusts and objects for which such investment is directed to be made are valid. This same question arose and was folly considered in the case which was recently before me, upon the will of George Lorillard. In that case the counsel for the heirs at law insisted upon the invalidity of the trusts of the will, and also of the ultimate limitation over of the estate to the descendants of the testator’s twelve nephews and nieces,- after the expiration of the time limited for the continuance of the trust-; and they asked for a decision of their rights in both' respects. And I there arrived at the conclusion that both questions must be decided in that suit, to enable the court to decree a legal and proper investment of that part of the trust estate which; by the will of the testator, was to be invested in the purchase of real property in the city ofNew-York, for the purposes of such will. (See Lorillard and others v. Coster and others, ante 172.) But if any doubts could exist on this point upon the original bill only, they are removed by the cross bill; which was filed, among other objects, for the express purpose of bringing all these-questions before the court for a decision thereon. And as all the necessary parties now in existence, who have either' a vested-or a contingent interest in the estate of the testator,.. ander the will or otherwise, which can be affected by tire decision of these questions, arc now before the court, it is proper .that the several points which have been so fully and so ably discussed on both sides, should he decided and finally disposed of in the present suit.

From an examination of the 27th clause of the will, in connection with the other provisions of the same instrument, it is evident the testator intended that the whole of his real and personal estate which was devised to his executors and trustees, and so much of the income thereof as was not wanted for the payment of debts or other purposes of the will, should, either during the continuance of the trust or at the expiration thereof, be invested iu real property; and should be distributed and conveyed as such to those who were entitled to share in the ultimate division of the estate, at the time designated by him for the termination of the trust. The testator, however, foreseeing that it would be impossible for the trustees to have ■every thing which might come into their hands in the character of personal property, up to the last moment of the existence of the trust term, actually invested in real estate at the termination of the trust estate, did not intend to require of them an impossibility. He therefore directs, that so much of the property and income as may he -casually remaining in the hands of the trustees, uninvested, shall be'distributed as personal estate. But this would not justify the executors and trustees in keeping any part of the trust fund, or the income thereof, intentionally uninvested, merely that it might be distributed as personalty at the termination of the trust. Neither can it authorize the court to decree a violation of the testator’s manifest intention in this respect, for the purpose of sustaining other provisions of the will which are clearly illegal and void. For all substantial purposes, therefore, this must be considered as a positive direction to convert the personal estate into land, for the objects of the will. And upon the principles of equitable conversion, the whole trust fund must be considered and ¡treated as real estate, for the purpose of deciding the various questions, which arise under this will, as to the validity of the several dispositions which the testator has directed to bemads* of the trust property.

Although a court of equity considers money which the tes-.tator has directed to be invested in the purchase of land, and land which he has directed to be sold and turned into inonejr, as of that speci.es of property into which he has directed it to be converted, for all the valid purposes of the will, it is only considered in equity as if actually converted, so far as the objects for which the conversion was directed by the testator are legal, and can be carried into effect. But where the object of the conversion fails either wholly or in part, whether such failure be occasioned by the incapacity of the devisee or legatee to take, or because of the illegality of the disposition attempted to be made ,of the converted property, or of any particular estate or interest in such property, or from any other: cause, there will b.e a respiting use, or trust, or estate in the property, or in so much thereof as is not legally or effectually disposed of, in favor of those who would have been entitled to such property if the conversion thereof had not been directed by the will. (See Leigh & Dalz. Equit. Conv. 93, and the cases there referred to.) If, in this case, therefore, any of the purposes for which the conversion of the testator’s perspnal property into real estate is directed to be made are legal and pan be carried into effect, this court must determine the questions as to the validity of all the other estates and interests .which the testator has attempted to create in the converted property; so that proper limitations may be inserted in the conveyances to be taken by the trustees, securing to all persons interested in the trust estate, either by way of resulting trust., or otherwise, their legal and equitable rights in the property to be purchased by the executors and trustees.

In connection with this subject, it may be proper here to remark, that the general power in trust, given to the executors and trustees, to sell or exchange portions of the real estate in Albany, New-York or Syracuse, in their discretion, cannot alter the construction of the will in reference to the provisions of the revised statutes relative to the nature and qualities of estates in real property and the alienation thereof. The mere exchange of one piece of property for another, by a trustee, under a valid power in trust, is not considered as an alienation of the estate or interest of .the cestui que trust, or person beneficially interested in the trust estate. The rules cf law on the subject of rendering estates inalienable, have reference to the substance, and not merely to the shadow. And for every substantial purpose, the land received in exchange for that of which the testator died seized, can be considered in no other light than as the same estate, A mere power to exchange lands, whether such exchange is made direclfi' or by means of a sale and hew purchase, is not a power to alien the estate, within the intent and meaning of the provisions of the revised statutes on this subject. As well might it be contended that .a bequest of personal property was not rendered inalienable, because the trustee who held it for the benefit of another had .the right to loan it out from time to time, and to receive other money, when it became payable, instead of that which was lent; although he had no right to dispose of the fund itself. The money received from the borrower is seldom, if ever, the same that was lent, yet for every legal and substantial purpose, it is the same fund or property.

The widow’s deed of relinquishment, the notice given to the trustees, the receipt by her of a share of the rents and profits of the estate devised to the executors in trust as and for her dower, and the actual receipt of a sum of money for her dower in the homestead under the decree in the partition suit, in which suit the heirs at law of the testator were parties, all of which took place within the year from the death of her husband, constituted a valid election by the widow to take her dower in the real estate, of which her husband died seized, instead of the devises and bequests in her favor contained in the will. If the legal estate was in the executors and trustees, the deed and notice, together with the receipt from them of a portion of the rents and profits of the trust estate, were certainly equivalent to an actual entry on the lands devised to them9 or the commencement of proceedings for the recovery or assignment of her dower, as required by the fourteenth section of the title of the revised statutes relative to estates in dower, (1 R. S. 752.) And the proceedings and decree in the partition suit constituted an actual recovery and assignment of her dower in that portion of the estate, and was a valid election as to the heirs at law of the testator, even if the whole devise in trust is void. The object of the legislature undoubtedly was to compel the widow to make her election to take her dower, instead of the jointure or other provision made in lieu thereof, within a limited period after the death of the husband; and by some open and notorious act which could not be misunderstood. And where she gives a written notice of such .election, to the person who is in the possession of the land in which she is entitled to dower, or who is in possession of the rents and profits thereof claiming title to the land, and such person thereupon admits her right and voluntarily pays her a part of the rents and profits of the premises as and for her dower therein, it must, in this court at least., be considered as an assignment of her dower, or an entry on the lands, within the intent and meaning of this statutory provision.

Neither is it necessary, by the statute, that the widow should make an entry upon, or commence proceedings for the recovery or assignment of her dower in every separate and distinct par-eel of the lands in which she is entitled to claim dower, in order to constitute a valid election, on her part, to reject the provision made by her husband in lieu of such dower. But it will be sufficient, where she has taken no part of such provision made for her in lieu of dower, if she actually commences proceedings within the year, for the recovery or assignment of her dower in any part of the lands as to which the right of election exists, or enters upon any part of such lands, claiming her dower therein. The actual recovery and assignment of her dower in the homestead, within the year, under the decree in the partition suit, was therefore of itself sufficient to determine the election of the widow, in this case, to take her dower in the whole of the testator’s estate as to which he died seized of such an interest as would entitle her to dower therein. It was also an effectual bar to any claim which she might after-wards make to any part of the provisions of the will in her favor, which were intended to be in lieu of her dower.

The legacy for the support and education of the Gourlay children was one in which the widow had no personal interest; and was not therefore a pecuniary or other provision made for her by the will, which would have barred her right of dower in She lands of her husband, if she had consented to accept and •Sxecule the trusts specified in the will. To constitute a case of election under the revised statutes, the jointure, or other provision made for the wife in lieu of dower, mast be one in which she is to have some beneficial interest. (1 R. S. 741, § 11, 12, 13.) A mere power in trust for the sole benefit of others is not sufficient; although the husband has an undoubted right to make the interest of the cestui que trust, under the devise of a trust power, dependant upon the condition that his widow shall elect to take a provision made for her by the will in lieu of her dower. He may make it to depend upon the condition that she- relinquishes or releases her right of dower absolutely, and without any equivalent. The devise of the mansion house and appurtenances, although coupled with a power to appoint the fee after her deaths was intended mainly as a provision for herself in lieu of dower. And as to that I arrived at the conclusion, though with some hesitation, that the interest of her descendants under the trust power, was intended by the testator to be made dependant upon the condition that she accepted of the provisions made for her by the will, in lieu of her dower. But under the fifth clause of the will, the children of Mrs. Gourlay,, the deceased sister, appear to have been the sole objects of the testator’s bounty, in reference to the $3000 for their maintenance, education and advancement. And the power of appointment given to the wife, by that clause of the will, like that given to the executors in case of her death, by the 14th-clause, is a mere naked imperative trust power, which she is-bound to execute if she accepts the trust.

(a) Although the intention of the testator in this part of the will is not perfectly, clear, I have arrived at the conclusion that, he did not intend» to make the provision, for the support and education of these orphan children, dependant upon the condition of the widow’s relinquishing her right of dower in his estate. The amount of that legacy must therefore be paid over to Mrs. James,- as the trustee for these children, according to the directions of the will, if she is willing to accept and execute the trust. And if she declines the trust, the legatees interested in the .fund may apply to this court for the appointment of a new trustee, to execute the power of appointment during the life of the widow. If any part of the legacy remains unexpended at the time of her death, the executors and trustees must execute the power after that time, according to the direction contained in the 14th clause of the will.

The personal property specifically bequeathed to' the widow, in lieu of dower, did not pass to the executors and trustees, under the 18th clause of the will, as a part of the trust-fund, upon her election to claim her dower in thenestate; it being expressly excluded by the terms of the trust clause. But the legal title to that portion of the testator’s estate vests in them, by virtue of their office, as executors; to be applied or distributed as a part of his personal property not bequeathed or disposed of by the will. As such it constitutes the primary fund for the payment of debts and legacies, unless the testator has legally and effectually charged such debts and legacies upon the income of the trust fund exclusively, and with the intention of exempting, not only the principal of that fund, but also any surplus of his estate as to which he had not made any disposition by his will, from the payment of any part thereof. If the charging of the debts of the testator upon the future income of the estate only, and by anticipation thereof, as directed by the 15th clause of the will, was a violation of the spirit of the restrictions contained in the revised statutes against the accumulation of rents and profits of real estate, or of the income of personal property, then no legal provision has been made by the will for the payment of the debts out of a particular fund, and the portion of the testator’s personal property as to which he died intestate must first be applied for that purpose. The confclusions at which I have-arrived on other questions in this cause will render it unnecessary for me to decide the question whether the provision in this will for the payment of debts can be sustained.

The personal estate of the decedent as to which he died intestate being the primiary fund for the payment of his debts, a direction to pay the debts out of the income of the real estate does not discharge the primary fund, unless it is evident from the whole will, taken together, that the testator contemplated the event of his dying intestate as to some of his períonal properly, and intended to exempt (he same from the payment of his debts, for the benefit of those who would be entitled thereto under the statute as to distributions. The mere charging of a secondary fund with the payment of debts does not exempt the primary fund, or postpone its application, unless the intention of the testator to exonerate it for the benefit of his residuary legatee, or some other person, plainly appears. (Lowndes on Leg. 329, and cases there referred to.) Most of the cases in which the primary fund has been considered as exonerated, by a charge of the debts upon the real estate, were cases in which the primary fund xvas actually bequeathed, either as a specific legacy or as a general residue ; and where it was evident the testator intended that the residuary legatee should take such general residue free from the charge of his debts. But even where the intention of the testator to exonerate a residuary fund for the benefit of the legatee was perfectly manifest, it has been held that a lapse" of the residuary bequest, by the death of the legatee, restored the residuary fund to its primary liability for the payment of debts, (See Noel v. Lord Henley, 7 Price’s Rep. 241; Waring v. Ward, 5 Ves. Rep. 670.) In the present case the testator evidently intended to exempt his wife’s specific legacy, given in lieu of her dower, from the payment of his debts. But that exoneration was clearly intended for her benefit only, under the supposition that she would take the provision, made for her by the will, in lieu of dower. And there is nothing from which I can infer that the testator intended to exonerate any personal property, as to which he might happen to die intestate, from the payment of his debts, as the primary fund appropriated by the general principles of law for that purpose. The specific articles of personal property bequeathed to the widow in lieu of dower, must therefore be appropriated to the payment of debts, before any resort can be had, either to the rents of the real estate, or to the principal of the personal property legally bequeathed. The same principle is also applicable to any other part of the testator’s personal estate, or the income thereof, as to which he is to be considered as having died intestate, in consequence of the illegality of the bequest, or otherwise. .And such portions of the peisof/Y alty must be applied to the payment of debts, before any resort can be had to the principal of the personal property legally disposed of by the will, or to the rents and profits of the real estate for that purpose.

Two or three Questions arise as to the Syracuse lots claimed by Augustus James as a gift from his father in his lifetime. The expression contained in the letter to Burnet, that the writer had charged and assigned that property to Augustus, does not necessarily imply that the testator had agreed or determined to convey the lots to. him absolutely and unconditionally, without reserving to himself the right to claim the price at which he had charged them. And the fact that the testator afterwards included these lots in the inventory of his estate, at the sum of $1400, seems to strengthen the impression that he intended to reserve to' himself the right to claim payment of that amount, if he should think proper to do so, before he gave to his son a conveyance of the property. If I should arrive at the conclusion that Augustus is entitled to a conveyance of these lots, either from the trustees or the heirs at law, without paying the $1400, and it should be determined that a part of the real and personal estate of the testator is not legally and effectually disposed of by the will, the question will then arise, whether the value of the lots at the time of the gift, is not to be brought into hotchpot in the distribution of the real or personal estate as to which there is an intestacy. Under the English statute of distributions, of which our former statute on that subject was nearly a transcript, it has been decided that the provisions as to advancements and portions only apply to an actual intestacy of the parent; and that no collation is to take place 'where there is a will, although there is a surplus of the testator’s estate which is undisposed of by such will. It was so decreed by Sir John Trevor, the master of the rolls, in the case of Vachell v. Jefferey, (Prec. in Ch. 170,) a few years after the passing of the statute. And Sir William Grant expressed an opinion to the same effect in the more recent case of Walton v. Walton, (14 Ves. Rep. 324.) But it is somewhat doubtful whether the same construction can be given to the provision on this-subject contained in the sixth chapter of the second part of the revised statutes; as the revisors have substituted the word deceased for intestate, which was used in the former statute, and, as appears from their note to the previous sections, for the express purpose of providing for a case where there is a will which does not bequeath the estate. (2 R. S. 96, § 75, 76 ; Rev. Notes to ch. 6, pt. 2, p. 65.) As the legislature, however, has used the word intestate in the corresponding sections of the chapter of the revised statutes relative to the descent of real property, (1 R. S. 754, § 23,24,) which sections were introduced during the passage of that chapter through the two houses, it is still left doubtful what construction should be given to these several provisions taken .together. (a) And if these Syracuse lots are in any way connected with the copartnership with Burnet, the profits of which are bequeathed to Augustus, a question of election may also arise under the provision of the will. I therefore prefer to have a new argument of those questions, if it shall be necessary to decide them in this cause. And I shall reserve the decision of the several questions arising out of this claim of Augustus to the Syracuse lots, until all the facts in relation to the alleged gift of those lots, and the value of the lots at the time of the gift, .are more fully ascertained by the report of a master..

The lands as to which the widow’s right of dower is questioned by the executors and trustees, or submitted to the decision of the court, have been considered by the counsel upon the argument as belonging to three distinct classes. The first .class is composed of the Albany City Lottery lots, the consideration for which was fully paid by the decedent in his lifetime, but the legal title still remained in the city corporation at the time of his death, and was subsequently conveyed to the executors and trustees. The second consists óf several .parcels of land owned by the decedent as a tenant in common with M’Bride and the Townsends ; the share- of the decedent •being the undivided five eighths thereof. The lands belonging to this class were, in June, 1825, conveyed by the several tenants in common, and their wives, to M. D. Burnet and Q-, Hawley as trustees, for the sole purpose of enabling one of the trustees to execute conveyances to purchasers of such of the lands as bad been or might thereafter be contracted to be sold, discharged of alt claims of dower therein; and to avoid the embarrassments and difficulties which might arise from having any part of the legal title to the lands vested in infant heirs, upon the death of one or more of the tenants in common, or their assigns. And the third class consists of several lots conveyed by S a fiord to Burnet, in 1825, the consideration of which was paid by the decedent and M’Bride and the Townsends. The share of the purchase money paid by the decedent upon the purchase of these lots was five-eighths. And since his death, the legal estate in an undivided share of the premises, to that extent, has been conveyed to the executors and trustees.

It is perfectly well settled in England that a wife is not entitled to dower in lands in which the husband had a mere equitable interest as cestui que trust. (4 Kent’s Com. 2 ed. 43. Park on Dower, 124.) Such was also unquestionably the law of this state previous to the revised statutes; although the settlement of the rule in that way was clearly a departure from the principle by which courts of equity are governed in analogous cases. The endowment of the wife of a mortgagor, subject to the right of the mortgagee, can hardly be said to be an exception to the rule, in this state ; because here the mortgagor is treated as the legal owner of the land, and the mortgagee is considered as having a mere lien thereon for the payment of his debt. This being the case, the right of the widow to dower in the equity of redemption follows of course, as a legal and not merely as an equitable right. And for this reason her dower is recoverable by an action in a court of law, (Collins v. Torry, 7 John. Rep. 278.) It is different where the husband has a mere equitable estate in the land, either by the operation of a resulting trust or otherwise. In Ambrose v. Ambrose, (1 P. Wms. Rep. 321,) where the purchase money of the premises had been paid by the husband, and a conveyance taken in the name of a third person, for the benefit of the husband, but without any written declaration of trust having been executed in the lifetime of the latter, L,oi'd Cowper considered the wife as having no legal claim to dower in the resulting trust; but he recommended to the heirs to let her come in for her dower in the trust estate. That case does not appear to be distinguishable from the case of the Syracuse lands purchased in the name of Burnet. I therefore conclude, that independent of the new principle hereafter mentioned as having been introduced into the revised statutes, the widow would not have been entitled to equitable dower in the lands comprised in the first and third classes.

The legislature, however, in the recent revision of the laws, have distinctly adopted the principle of permitting the widow to receive equitable dower in the descendible equitable interests of the husband, in real estate, which belonged to him at the time of his death. In the case of lands purchased under execution, if the purchaser dies during the fifteen months allowed for redemption, or before the actual conveyance of the land by the sheriff the statute directs the conveyance to be made to the executors or administrators of the decedent, in trúst for his heirs at law, but subject to the dower of his widow, if there be one. (2 R. S. 374, § 63, 64.) So in the case of a contract for the purchase of land, where the husband dies seized of an inheritable interest in the premises, before a conveyance of the legal estate has been given, the right of the widow to equitable dower therein, subject to the lien of the vendor for the unpaid purchase money, is distinctly recognized and declared by the legislature, in that part of the revised statutes which authorizes a sale of the decedent’s interest in the premises, under a surrogate’s order, for the payment of debts. (2 R. S. 112, § 71, 72.) This principle of giving to the widow her equitable dower in lands in which the husband had an inheritable interest at the time of his death, being thus adopted by the legislature, it is the duty of this court to cony it into effect, by giving to the widows of those who have died since the revised statues went into effect, their equitable dower in such inheritable interests of their husbands, whenever it can be done without interfering with the rights of bona fide purchasers from those in whom the legal title was vested. This principle of the revised statutes, however, extends only to those cases in which the equitable interest of the husband in his trust property continues down to the time of his- death, so as to be inheritable by his heirs. And if he aliens it in his lifetime, the widow will not be entitled to dower therein, as against the grantee. In the present case, as •the husband died since the revised statutes whent into effect, the widow was equitably entitled to dower in the lands, belonging to the first and third classes, .of which.be was seized of an inheritable interest.

The equitable right of the widow to dower in the proceeds of the land conveyed to Burnet and Hawley, depends upon a different principle. The object of the conveyance in that case was to vest the legal title to the land in the trustees, ■and the heirs at law of the survivor of them, for the purpose ■of creating a perpetual trust, of so much of the premises as ■should remain undisposed of or unconveyed from time to time, for the more convenient vesting of the legal title to such parts of the premises as should be contracted to be sold by the -grantors, or their heirs and assigns ; but which trust could be ■determined at any time, by a joint conveyance of all the persons beneficially interested in the lands remaining unsold when such joint conveyance should be executed. The counsel for the widow is under a misapprehension, in supposing that the deed to Burnet and Hawley is a mere power of attorney, which was revoked by the death of Mr. James. He has probably fallen into this error in consequence of the recital in the deed, that the grantors had appointed Burnet their ■agent, and attorney in fact, to manage the property for then-use, and to contract for the sale thereof in parcels, subject to such orders as he might from time to time receive from them. But that appointment of Burnet as the agent to contract for the sale of the lands, in the name of and for the benefit of the grantors, and to manage the trust estate for their use until sold, ■was entirely distinct from the conveyance of the legal title in -such lands, to Burnet and Hawley in trust. And if sugh appointment was not, in fact, contained in a distinct instrument, the recital thereof in the trust deed is at most but the legal evidence of the fact that they had appointed him their agent and attorney for those purposes.. That undoubtedly was a mere power of attorney, which the persons granting the pow-Of might revoke at any time; and which probably-was revoked, as to William James, by his death, it might be renewed, however, by those who succeeded to his equitable estate in the premises. And whether renewed or not, it does not affect the trusts created by the deed ; as it still is competent for those who have succeeded to the rights of the decedent, to join with the survivors in making a contract of sale,, under the power in trust, contained in the will,, to sell or exchange portions of the testator’s estate. In other words, the appointment of Burnet as agent to manage the premises, and-to contract for the sale of portions thereof from time to time, subject to such instructions as he might receive from the real owners of the property, was a mere power of attorney, and' was revocable by them at any time, without interfering in any manner with the trust as to the legal title; which was vested in the trustees for the purpose of having such title conveyed to those who might contract for the purchase of parts of the premises, whether such contracts were executed by the owners of the estate personally, or through the medium of such agent, or any other agent or attorney lawfully appointed. There was no legal objection to the creation of such a trust, previous to the adoption of the revised statutes.. And E do not at present discover any legal objection to such a conveyance, as a mere power in trust, even if the trust deed had-been executed since the revised statutes went into operation. (See 1 R. S. 729, § 58.) In the latter case, however, the-legal estate would remain in the grantors until the execution of the power; and the widow would take her dower in the land, subject to be divested by the execution of the power, in favor of a purchaser by contract from the "grantors, or their heirs or devisees.

I do not consider it important to inquire, whether the legal estate in the premises remained in Burnet and Hawley at the death of the testator, coupled with the power in trust, or was vested in the grantors, subject to be divested by the execution of the trust power, by the operation of the 47th section of the article of the revised' statutes relative to uses and trusts. (1 R. S. 727, § 47, 48.) For in either case, the widow’s equitable right to dower,in such portions of the premises, or the proceeds thereof, as had not been contracted to be sold, would still be tile same. The object of the parties to this trust deedy was not to deprive the wives of the grantors of their equitable right to dower in such portions of the estate as should remain unsold at the deaths of their respective husbands. But the real object of the grantors undoubtedly was, to place the legal estate in such a situation that the premises might be sub.vided into lots, and sold for their joint benefit, not only during their joint lives but afterwards; and that perfect titles might be made to the purchasers, without the trouble and expense of obtaining a separate and distinct conveyance to each purchaser from the grantors, or their heirs or assigns, and from-their several wives or widows. The purchasers, therefore, under the joint contracts of the several persons beneficially interested in the trust estate, from time to time, whether such contracts are made by such persons for themselves, or through-the instrumentality of an agent or attorney, will, by the conveyances under the power in trust contained in the deed to Burnet and Hawley, obtain a perfect title to their respective lots, free from any claim of dower therein. As the court of chancery considers that which is agreed to be done as done, upon the principles of equitable conversion, the purchase money of the lands contracted to be sold during the lifetime of the testator, whether paid before his death, or afterwards, is a part of his personal estate. And so far as it is not legally bequeathed by his will, it must be distributed 10 bis widow and next of kin as personal assets. (Lames v. Bennet, 1 Cox’s Cas. 167. Baden v. Countess of Pembroke, 2 Vern. Rep. 215. Bubb’s case, Freeman’s Ch. Rep. 38. Sugd. Law of Vend., 8th Lond. ed. 163.) The interest of the testator in the lands contracted to be sold, therefore, was not an estate of inheritance descendible to his heirs, and the widow has no equitable right of dower in that part of the premises. But the executors may claim a specific performance of the contract, and an execution of the conveyances under the trust power, for the benefit of those who are entitled to share in the testator’s personal estate. (a) As to the residue of the trust premises, in wíiich the husband had an inheritable interest at the time of his death, the widow is equitably entitled to otie third of the five eighths of the net income thereof during her life, as and for her dower,- And if the premises shall hereafter be sold, and conveyed to the purchasers under the power contained in the trust deed, she will be entitled to the same portion of the interest of the purchase money, and for the same time, or to a gross sum in lieu thereof.

The whole of the legacy given to the widow, by the fourth clause of the will, for her own support and for the education and support of the children of the testator and his wife, became lapsed by the refusal of the widow to take the devise and bequests to her in lieu of dower. It is very obvious that the testator intended to give this annuity to the wife for her own benefit, to enable her to beep up the family establishment in the mansion house, which was also devised to her for life,' together with the furniture; knowing that if she had the means, her children would not be' suffered to want. And also knowing that if she elected to take her dower in his es«" tote, instead of the provision he had made for her by the will, she would have more than was necessary to keep up her family establishment, living “respectably, but at the same time prudently and circumspectly,” and much more than he appears-to have supposed necessary for that purpose: In the recent case of Benson v. Whittam, (5 Simons’ R. 22) where the testator bequeathed the dividends of certain stock in the Bank of England to bis brother A. B., to enable him to assist such-of the children of his deceased brother F. B-. as he might find deserving of encouragement, the vice chancellor, Sir Lancelot Shadwell, held that this bequest was not intended as a mere power of appointment, and that no trust was ere’-ated for the children of the deceased brother. That appears-to be a much stronger case than the present, as it is perfectly manifest here that the testator intended- his widow should1 take a beneficial interest, in a part of the annuity, at least, and the whole is given to her as a compensation for her dower in his real estate. And there is no principle upon which I can* declare a trust in favor of the children of Mrs. James as to-© part only of this annuity, and apportion the annuity between her and them, without doing violence to the testator’s intention in mating this bequest.

The trust term devised to the executors and trustees cannot continue, so as to retain the legal estate in them, a moment longer than is necessary to enable the trustees to perform the objects of the trusts, so far as the same am valid and can be legally carried into effect. For however long a period the estate may be nominally devised to them, by the terms of the will, whenever the legitimate purposes for which an express trust has been created cease, or have been accomplished, the estate of the trustees must terminate, under the express provision of the statute. (1 R. S. 730, § 67.) And if there are any valid powers in trust, contained in this will, that would not of themselves have authorized the creation of a trust estate, under the provisions of the 55th section of the article of the revised statutes relative to uses and trusts, but which remain unexecuted at the termination of the trust estate which is legally vested in the trustees, they may still be executed, as powers in trust, for the benefit of those who are interested in the execution of such powers. Although some of the objects for which this trust term was created, and some of the contingent remainders and future interests limited thereon, may be illegal or invalid, if any of the purposes for which, the trust estate was created are valid, and will continue during. the term, the trust estate must continue in the executors and trustees for the same period. Every future estate in real property, or future interest in personal property, which if valid would have the effect to suspend the absolute power of alienation of the one, or the absolute ownership of the other, for a longer period than is allowed by law, is absolutely void in its creation. (1 R. S. 723, § 14. Id, 773, § 1, 2.) And every disposition, made by this will, of an estate or interest in the rents, profits, or income of the testator’s real or personal property which may accrue and be received after his death, whether such estate or interest in the rents and profits or income is to vest in possession during the continuance of the trust term, or to take effect at or after the termination thereof, must be considered and treated as á future estate, and subject to this role.. (1 R. S. 725, § 36.) Such of the trusts of the will, therefore, as would if valid have the effect to render the estate inalienable, for a longer period than is allowed by the article of the revised statutes relative to the creation and division of estates, (1 R. S. 721, § 15,16,) and every remainder limited upon the trust term, which would have that effect, must be considered as absolutely void and inoperative, in determining the question as to the validity of the devise of the trust term to the executors and trustees, or as to the validity of the other trusts of the will. But as it is the duty of the court to carry into effect the intent of the testator, so far as it can be ascertained from an examinatipn of the will itself in connection with the situation of his property at the time of the making thereof, and so far as the intent thus ascertained is consistent with the rules of law, the invalidity of any particular trust, interest, or limitation created by the will, cannot have the effect to destroy the trusts and limitations which are otherwise valid; unless indeed the latter are so mixed up with those which are illegal and void, that it is impossible to sustain the one without giving effect to the other. Upon these principles, I will now proceed to determine the question as to the validity of the trust term itself, as a devise of the legal estate to the trustees and executors. And also the several questions as to the validity of the various devises and bequests, for the satisfaction of which the rents and profits and income of the estate are to be received and applied ; and as to the validity of the several limitations over, after the expiration of the time prescribed by the testator for the continuance of the trust term.

It is insisted, in behalf of William and Henry James and the widow of the testator, that a trust'estate for a term in gross, or during the minorities of three or more persons in being at the creation of the trust, cannot legally be granted or devised to a trustee ; and that to render any trust term valid, the continuance of the term must be made absolutely dependant upon the lives of persons in being at the creation of the estate, and that it. must be determinable at or before the death of two such persons. This, I apprehend, will depend upon the question whether such trust estate, for a term in gross, or during minorities, can be created, for any of the purposes authorized by the fifty-fith section of the article of the revised statutes relative to uses and trusts, which will not necessarily suspend the power of alienation, of an absolute fee in possession in the testator’s property, for a longer period than is allowed by law. The effect of the construction, of the fifteenth section of the title of the revised statutes relative to the creation and division of estates, which is thus contended for, would be to deprive a parent of the power of providing for the support and education of a numerous family, during the minorities of the younger children, by means of a tryst to receive the rents and profits of the estate, and apply them to the support and education of his family, according to the necessities of each, until the children all arrived at the age of twenty-one. Such a provision for the support and education of a family, out of the income of a small estate, is frequently made by will, and does not appear to be inconsistent with any sound principle of public policy, indeed, it may frequently be advisable to create such a trust, where the income of the property is small, for the purpose of keeping together a family of minor children, and distributing the rents and profits among them in such a manner that the greater wants of some of the children may be provided for out of such rents and profits as, upon an equal division, would go to those who might need them less. Although such a trust term might be inalienable, under the restrictions contained in the 63d and 65th sections of the title last referred to, it could in no event suspend the power of alienation for a longer time than twenty-one years, and the usual period of gestation if there was a posthumous child. This is much less than the probable continuance of the longest of any two lives under the age of ixventy-one, according to the ordinary duration of human life ; and even less than the probable duration of any one life under that age, in any part of this state, according to the tables of mortality. (See Meyer on Life Ins. 85, Table 17.) The principle of permitting a reasonable suspense of the power of alienation, in case of the actual minorities of persons contingently interested in the estate, is also recognized by the legislature in the recent revision. The 63d section of the articles relative to uses ancl trusts presents the only legal obstacle which can render a trust term, determinable at the expiration of any number of minorities in being, inalienable. And as the 15th section of the revised statutes, before referred to, does not prohibit the creation of a trust term, which is not made absolutely determinable upon the death of any two specified persons, I conclude, although with some hesitation, that such a trust term, if it is so limited that it can in no event continue longer than the actual minority of two or more infants in being at the creation of such estate, and who have an interest therein, either vested or contingent, is not necessarily invalid. If I am right in this, some of the contingent dispositions, of the rents and profits of the estate during the trust term, which are to take effect and vest in possession in those who are entitled to the beneficial interest therein before the time appointed by the testator for the termination of the trust estate, may be sustained. But if I am wrong in the conclusion at which E have arrived on this point, then every disposition of the rents and profits or income of the estate, except those which provide for the raising of portions for persons in being at the death of the testator, or the payment of other sums in gross to creditors, annuitants, or other legatees, are absolutely void by the provisions of the 14th section of the statute; being future interests in rents and profits, in the nature of future estates. (1 R. S. 723, § 14. Idem, 725, § 36.)

An express trust may be created, under the second subdivision of the 55th section of the article relative to uses and trusts, to lease lands and receive the rents and profits for the payment of legacies, or any charge on such lands. (1 R. S. 728.) An annuity is a legacy; and when payable out of the rents and profits of land, it is a charge upon the land. The trust to pay the annuitants out of the rents and profits and income of the estate is, therefore, sufficient to sustain the trust term in the executors and trustees until the youngest child or grand-child arrives at the age of twenty-one, if any of the annuitants so long live. As the testator has charged the rents and profits of every portion of the estate with the payment of the legacies and annuities, and conveyed the whole legal estate to the trustees, to enable them to receive the rents and profits and make such payments, the legal and equitable title to the whole premises is vested in the trustees during the trust term, if the legitimate objects of the trust continue so long, subject only to the execution of the trust. And the court of chancery has not the power to divest the legal title, as to any portion of the estate, for the purpose of vesting it in the heirs at law. (See 1 R. S. 729, § 60.) But if there is any surplus of the rents and profits, after satisfying the annuities and other sums legally charged thereon, there is a resulting trust as to such surplus, either in favor of the persons presumptively entitled to the next eventual estate, or in favor of the heirs at law of the testator; which question I will hereafter consider.

The estate devised to the executors and trustees, in this case, was a term of years, in the testator’s real property of which he was seized at the time of his death, and in the real property into which he directed the personalty to be converted, for the term of twenty years and ten days; the youngest grand-child who was living at the date of the will being one year old ten days after the death of the testator. In ordinary cases of a trust for the payment of debts and legacies, or other charges upon the estate, to continue until a child or grandchild shall arrive at the age of twenty-one, the trust estate will not be determined by the death of the child or grandchild under age; but will continue until the time when- he would have arrived at that age if he had lived. (Sweet v. Beal, Godolphin, 388; Boraston's case, 3 Coke's Rep. 21, a; and per Sir J. Jekyl, in Lomax v. Holmeden, 3 P. Wm. 177; Stanley v. Stanley, 16 Ves. Rep. 506.) But in this case it is evident, from the language used by the testator, that he contemplated the possibility that his youngest children or grand-children might die under age; and that he intended the trust estate should cease whenever the minorities of the children or grand-children should terminate, either by death or lapse of time. The language used by him does not, in terms, provide for the possible contingency of the death of the youngest child or grand-child under twenty-one, after the others have arrived at full age. But in that event the will must be carried into effect according to the manifest intention of the testator; and the trust estate will cease at the death of the last who shall die under age, after the survivors have all attained their majority. It is therefore not an estate for years determinable on lives, nor an absolute term ; but it is an estate for years, for twenty years and ten days, determinable sooner if the minorities shall cease before the expiration of that time. And vested remainders which are limited upon the trust term, except so far as they are to be composed of the rents and profits or income of the estate, illegally accumulated for that purpose during the term, are valid ; whether such remainders are in fee or for life only.

The 20th section, of the title of the revised statutes so often referred to, prohibits the creation of a contingent remainder upon a term of years, unless the nature of the contingency upon which it is limited is such that the remainder must vest in interest, during the continuance of not more than two lives in being at the creation of the remainder, or at the termination of such lives. (1 R. S. 724.) But this provision of the revised statutes cannot be construed to mean that no contingent remainder shall be limited on a term of j^ears, unless it is so limited as to render it certain that the remainder must, in any event, become vested in interest, Upon such a construction of the 20th section of the statute, the next section is not only useless but absurd. The 21st section 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 estate. (1 R. S. 724.) A remainder to a person not in being must always be contingent until his birth; and until that event it cannot be known that it will ever vest in interest, in whatever form it may be limited. Even if it is to the general heirs of a person in being at the creation of the remainder, it may never become vested, as such person may die without an heir. The fair construction of these two sections of the statute taken together, therefore, is, that a contingent remainder upon a term of years must be so limited that it will necessarily vest in interest within the period required by the 20th section, if it ever becomes thus vested. And that a contingent remainder for life, to a person not in being, shall not be limited on a term of years, although it is so limited that it will become vested within that period, if ever. Neither does this 20th section of the statute render it absolutely necessary that the term of years, on which a contingent remainder is limited, should be made determinable upon lives. But such remainder may be limited upon a term in gross, if the remainder itself is-so limited that it must necessarily become vested in interest, if ever, during,.or at the expiration of, not more than two specified or ascertained lives, in being at the creation of such remainder. Thus, upon a devise to A. for fifty years, as an absolute term, remainder to B. for life if he should marry C.s- and remainder in fee to the children of such marriage : The remainder to B. upon condition of his marriage with C. is contingent, but must necessarily vest in interest, if ever, during the period of his' own life, although it will never vest in possession if he dies within the term. And the ultimate remainder in fee to the children of the marriage must also vest in interest, if ever, within the period of one life in being at thedeath of the testator. The first child of the marriage would, upon its birth, take a vested interest in the ultimate remainder in fee, subject to open and let in after-born children. And it would be no objection to the validity of the contingent remainders to the children, in the case supposed, that a child might not be born in the lifetime of the father, although begotten before his death, and that it might be brought into existence by the caesarean operation, even after the death of the mother. For, upon a limitation of a future estate to children, or heirs, or issue, a posthumous child, if born alive, is considered as in existence, and capable of taking a vested interest for its own benefit, in the same manner as if born and living at the death of its parents. (1 R. S. 725, § 30. Marsellis v. Thalhimer, 2 Paige’s Rep. 35.)

Applying these principles to the case under consideration, the life estates to Augustus James, and to his six brothers and sisters, and to Mary Ann King and Robert James, in the eight and a half shares of the estate devised to them respectively, exclusive of any accumulation of rents and profits or income, are valid as contingent remainders limited on a term of years. For the life estate in the share of each must necessarily vest in interest, and in possession also, if ever, during the continuance of one specified life in being at the death of the testator; to wit, the life of the child or grand-child to whom the remainaei in each share is given by (he 37th clause of the will. And the f 10,000 legacy to James King, which is to be carved otit of his daughter’s twelfth of the estate, is also valid.

If these first remainders for life, to the seven children and two grand-children, in the eight and a half shares, vest in possession at the expiration of the trust, by the execution of the trust power contained in the 40th clause of the will, the contingent remainders in fee, in the shares which become thus' vested, which by the 44th clause of the will are in that event devised to the descendants or special heirs of the first takers respectively, are also valid. For it is evident that the ultimate remainders, in the respective shares of these tenants for life, must necessarily become vested in possession, as well as in interest, at the expiration of a single specified' life in being at' the death of the testator. To illustrate this point more clearly : If Mrs. B., the daughter of the testator, and who was in being at his death, survives until the expiration of the trust term, and becomes entitled, by the decision of the trustees, to one twelfth of the property for life, the ultimate remainder in fee in that twelfth, to her decendants, or special heirs, must necessarily become vested in possession, as well as in interest,by her death; and of course, at the termination of a single life in being at the creation of such remainder. For, 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. (Corn. on Rem. 193.)

The several contingent estates or interests, which by the 39th clause of the will are limited to the heirs and representatives of the testator’s children, or grand-children, who may happen to die during the continuance of the trust, are contingent remainders created On a term of years, within the meaning and intent of the 20th section of the statute. By the common law, a remainder could not be limited on a base or determinable fee which was vested in interest. And such a limitation of a future estate could only be good as an executory devise. But, where the determinable fee was contingent and might never vest in interest, a remainder might be limited tip-on the precedent estate, to vest as a remainder "in the event oí the base fee never taking effect. (Crump v. Norwood, 7 Taunt Rep. 362. Doe, ex dem. Herbert, v. Selby, 2 Barn. & Cress. Rep. 926.) This case, therefore, comes within that principle,, if the previous devise to the children and grand-children for life are contingent and not vested remainders. The revised statutes, however, have given a much broader construction to the term remainder; so that every future estate in lands which is dependant upon a precedent estate, whether it is limited to take effect in case of the failure of a contingent or a vested fee,, or otherwise, must be deemed a remainder, in giving a construction to the several provisions of this title of the revised statutes. (See 1 R. S. 723, § 11.) To ascertain whether any of the substituted remainders thus limited by the 39th clause of the will are valid, it is necessary to inquire whether they will become vested in interest upon the death,, during the continuance of the trust, of the children or grandchildren upon the failure of whose estates, respectively, such substituted remainders to their heirs and representatives are limited. For if they do not then become vested, they will not necessarily become vested in interest during the continuance,, or at the termination, of any two specified or ascertained lives in being at the death of the testator..

A remainder is vested in interest where the person is in being and ascertained, who will, if he lives, have an absolute and immediate right to the possession of the land upon the ceasing or failure of all the precedent estates, provided the estate limited to him by the remainder shall so long continue. In other words, where the remainder-man’s right to an estate in possession cannot be defeated by third persons, or contingent events, or by the failure of a condition precedent, if he. lives, and the estate limited to him by way of remainder continues, till all the precedent estates are determined, his remainder is vested in interest. The contingent remainders in the respective shares of the children and grand-children who may die during the continuance of the trust, therefore, will vest in interest in those who are their heirs or representatives at their several deaths, if the absolute right of such heirs or representafives to a future estate in possession is then conclusively settled ■and determined. So far as relates to the contingent remainders to the heirs and distributees which, by the thirty-ninth clause of the will, are given in the several legacies of Anna M’Bride James and Lydia James, as the legatees are not. to share in the final partition of (he estate, but are to have their legacies raised out of the rents and profits during the term, which legacies are to vest in possession by the determination of the trust estate merely, those remainders must vest in Interest, if ever, at the termination of one life in being, and therefore are valid. So also are the prior vested remainders to Anna M’Bride and Lydia, for life, if they live till the termination of the trust estate; and the contingent remainders to their descendants, or special heirs, in fee after their deaths. Buf the power in trust given to these and other tenants for life, by the 44th clause of the will, to devise the ultimate fee to any of their descendants who may not be in existence at the time of the deaths of such tenants for life respectively, or to appoint any other estates than absolute and unconditional fees, except in the single case of death during minority, as provided for by the 16th section ofthe statute, is clearly void. (See 1 R. S. 724, § 20, 21. Idem, 737, § 129.)

A remainder is contingent, although the remainder-man Is in being and ascertained, so long as it remains uncertain whether he will be absolutely entitled to the estate limited to him in remainder, if he lives and such estate continues until all the precedent estates have ceased. , But where a mere power is given to appoint a remainder among a particular number or class of persons who are known and ascertained, with a limitation to the whole number, as tenants in common or otherwise, in default ofthe appointment, the remainder is vested; subject to be divested by the execution of the power of appointment. (See Sugden on Powers, 5 Lond. ed. 151, where all the cases on this subject are collected.) In the case under consideration, the substituted contingent remainders in the -eight and a half shares, which by the 39th clause of the will are given to the respective heirs and representatives of the seven children and two grand-children who are to share in the final partition of the estate, as well as all other remainders on such partition, are made by the testator to depend absolutely upon the contingent event of the decision which the trustees may then make upon the question as to moral character, and upon the execution of the power of appointment consequent upon that decision. These remainders are not limited, by the will of the testator, to take effect in a particular way in case this power in trust is not executed by the trustees, or the condition precedent is not performed by John, Edward, Howard and Robert. But the extent of the share of the estate, if any, which is to become vested in each, is referred wholly to the decision of the trustees for the partition, upon the then state of moral character. It is not therefore a case which comes within the provision of the 100th section of the article of the revised states relative to powers. (1 R. S. 734.) That section is only applicable to a trust power, with an arbitrary and absolute right of selection ; .such as is given to the parents, or trustees, in relation to the $50,000 legacy to the children of Augustus, by the 36th clause of the will; not where the selection or appointment depends upon the existence or ascertainment of a fact. A court of chancery may compel the execution of the trust power, or may perhaps itself execute it by a new trustee, or one of its officers, if the trustees appointed under the will refuse to make the partition in the manner directed by the testator. But if the decision as to moral character is made in good faith, by the trustees, it cannot be controlled; as the testator has constituted them the sole judges of the facts upon which the vesting of these contingent remainders are to depend. The remainders must therefore take effect by the execution of this trust power, or wholly fail; as they can take effect in no other manner, in conformity with the intention of the testator. These remainders, then, must continue contingent, so far as relates to any interest in the eight and a half shares, until the termination of the trust estate. The remainders in those shares which are given to the heirs and representatives of the .original remainder-men by the 39th clause of the will, are therefore void, as they are not limited in such a manner that they must necessarily vest in interest, if ever, within the time prescribed by the 20th section of the statute.

The several estates or interests in the remaining three and a half shares, with the additions of the forfeited portions of the other eight and a hálf shares, as directed by the 40th clause of the will, are future estates, dependant on a precedent estate, and are therefore remainders, according to the statutory definition of the term. (1 R. S. 723, § 11.) They are dearly contingent remainders limited on a term of years; which remainders cannot possibly vest in interest during the continuance of the trust term. And the nature of the contingencies, on which the estates or interests' are limited, in these three and a half shares, with the additions, which may be denominated the testator’s residuary fund, are not such that any .estate, or right in such residuary fund, will necessarily vest in interest within the time required by the 20th section of the statute. The whole devise as to this residuary fund, after the termination of the trust, is therefore void. It is doubtful whether the devise is not also void on account of the uncertainty as to what persons the testator intended should be comprised in the class of legatees or devisees who were to be beneficially interested in the execution of the trust power in relation to this residuary fund.

I have before stated, in relation to the lapsed specific legacies to the widow, that the personal property as to which the testator died intestate, either by lapse or otherwise,, is the primary fund for the payment of debts, except where it manifestly appears that'the testator intended to exonerate the primary fund, for the benefit of a residuary legatee or of some other person ; and that where such intention is manifest, a failure of the object for which the primary fund was intended to be exempted, restores the unbequeathed fund to its primary liability. I think it will be found, upon examination, that none of the cases conflict with this principle; which is equally applicable to the failure of a bequest of the primary fund because the bequest thereof cannot take effect according to the intention of the testator, either on account of the illegality of the bequest, or for want of legal capacity in the legatee to take. In every case of this kind the intention of the testator is to govern. And where a case occurs which it is evident was not in the contemplation of the testator in exonerating the primary fund for the payment of debts, and by which occurrence the object for which the primary fund was to be exonerated is wholly defeated, the exoneration itself must fail pro tanto. The cases of Waring v. Ward and Noel v. Lord Henley were both decided on this principle. In the case under consideration it is manifest, that the sole object of the testator in exempting the capital of the personal estate included in the bequest to the trustees, was to enable them to distribute it according to the declared trusts of the will, at the end of the trust term; and not for the benefit of his widow and next of kin. And as the devise of the contingent remainders in three and a half twelfths of the testator’s personal property, after the termination of the trust, wholly fails, that portion of the personal estate remains a part of the primary fund for the payment of the debts. The same principle must also be applied to so much of the personal estate as may be included in any -of the eight and a half shares which shall fail, upon the happening of the contingencies contemplated in the 39th and 40th clauses of the will. The three and a half twelfths of the personal estate which are included in the devise in trust, with the proceeds of the lapsed specific legacies to the widow, and the interest or income of the whole personal estate for the first year after the testator’s death, will form an ample fund for the payment of all his debts and funeral expenses, and all legacies which became due at the end of the year; except such debts, if any, as were secured by mortgage upon the real estate. I am therefore relieved from the necessity of deciding the question as to the legality of an indirect accumulation of the testator’s estate, by charging the income of such estate, in anticipation, with the payment of debts. From a principle of convenience, this court has long since adopted the rule that the personal representatives of the testator, or intestate, shall have one year after his death, to get in the assets, and to liquidate and pay off the debts, and prepare for a distribution of the estate, or to invest the same in the manner directed by the will; except in those cases where explicit directions on his subject are given by the testator himself. (Sitwell v. Bernard, 6 Ves. Rep. 539.) The legislature of this state, in the recent revision of the laws, has also recognized and to a certain extent adopted this rule of convenience. The interest or income of the personal estate of the decedent, for the first year, may therefore unquestionably be appropriated by him to the payment of his debts, without violating either the letter or the spirit of the statutory provisions against the accumulation of vents and profits, interest or income, of real or personal estate, except for the benefit of minors. And beyond this it cannot be necessary to go in the present case.

The direction for the payment of legacies out of the rents? and profits or income of the estate, by anticipation, is not a violation of the statutory provisions against accumulations. Where the testator dies possessed of a largo estate over and above all his debts, he has an unquestionable right to devise or bequeath it as a future estate, undiminished in amount; provided he does not violate any of the rules of law against perpetuities. He may, therefore, carve such intermediate estates, interests, legacies, or portions, out of the income in the mean time, as he may think proper, if it can be done without an actual accumulation of the rents and profits for that purpose. And the raising of a legacy or portion by anticipation, out of the intermediate rents and profits, is in effect nothing more than charging the estate of those who would otherwise be entitled to such intermediate rents and profits, with the payment of a sum in advance, out of the rents and profits they may after-wards receive. But an accumulation of such rents and profits,, for the purpose of raising a legacy or portion at a future day,, cannot be permitted, except where such legacy or portion is-for the sole benefit of a minor who is in existence when the accumulation is directed to commence. (1 R. S. 726, § 37, 38. Idem, 773, § 3, 4.) In the present case, if there are any directions, either express or implied, for the accumulation of the rents and profits or income of the estate, such accumlation must be considered as directed to commence at the death of the testator, although from the situation of the estate it may not actually commence at that time. And as there is no fund or portion to be raised for the sole benefit of any minor in being at the death of the testator, none of the portions or provisions for the testator’s children, or their widows or descendants, can be paid out of an accumulated fund. But such portions and provisions, so far as they are valid, must be peid out of the rents and profits and income of the current year in which the payment-shall become necessary, or by anticipating the future rents and profits.

The $50,000 legacy to the children of Augustus, so far as their life estates therein are concerned, like the legacies to Anna M’Bride and Lydia, is already vested. And the contingent remainders in their several shares of the legacy, to their descendants or special heirs, must necessarily vest in interest, if ever, upon the termination of their respective life estates ; and of course within the' time allowed by law for the vesting of a contingent remainder limited upon a term of years. And if Augustus and his present wife should have any more children, the interests of such after-born children in the legacy, as remainder-men in fee determinable by death during the continuance of the trust, "will become vested at their several births, and of course during the life of one person in being at the death of the testator. The power of appointment which is given to the parents, or trustees, in relation to this legacy, does not prevent the shares of the several children from becoming vested previous to the termination of the trust; subject, however, to be divested by death, or by the execution of the power of appointment in favor of some of them exclusively. This is a case provided for by the article of the revised statutes relative to powers. And the beneficial interest of the present children in the execution of the trust power gives them a vested interest in the remainder, which can only be divested by their death, or by the execution of the trust power in favor of others. A similar interest in the remainder will vest in each after-born child at its birth, subject to open and let in others. If those who are intrusted with the execution of the power should be living at the end of the trust term, its execution may be compelled, in equity, as its execution or non-execution is not made expressly to depend upon the will of the grantees of the power. And if they should all die, this court will decree an execution of the power in favor of all the children, of Augustus and his present wife, who may be living at the end of the trust term, equally. (1 R. S. 734, § 96, 100.) If any shares of this legacy is appointed or decreed to the children who were in being at the death of the testator, they will take life estates in such shares. with remainder in fee to their descendants or special heirs; subject to the restriction on the power of appointment, by such tenants for life, which I have before mentioned. And the shares, if any, in the $50,000 legacy, appointed to the after-born children of Augustus and his wife, will be remainders in fee.

The annuities for life to those whose portions are wholly withheld, and which by the 43d clause of the will are limited as contingent remainders upon the trust term, must, so far as concerns the question of their validity, depend upon the validity of the respective remainders to the same persons for life, in their original portions of the estate. No persons, therefore, except the seven children and two grand-children of the testator, who were in being at the time of the testator’s death, and who are named in the 37th clause of the will, as being entitled to the eight and half shares on the partition of his estate, subject to the conditions, limitations and retributive purposes therein afterwards expressed, can be provided for under such 43d clause. The annuities, if any, to such persons respectively, must be raised out of or charged upon the several shares to which they would have been entitled if they had not forfeited them, by the non-performance of the condition precedent, or otherwise. And the residue of such forfeited shares must then be added to the residuary estate or fund, composed of the capital of the three and a half shares, and the capital of such of the eight and a half shares as may become lapsed by death during the existence of the trust term. If any part of this residuary fund is composed of the testator’s personal estate, after the testator’s debts and funeral expenses have been paid out of the proceeds of the specific legacies to the widow and the personal estate not legally and effectually bequeathed, such personal estate must be distributed to the widow and next of kin of the testator, according to the statute relative to the distribution of personal estates in cases of intestacy. And the real estate comprised in that residuary fund must be distributed to the heirs of the testator, according to the law of descents. For the purpose of ascertaining what is real and what is personal estate at the termination of the trust, it will be necessary to keep a separate account of the investménísj of the proceeds of personal property in the purchase of real estate, and of the investment of the proceeds of the sale of real estate of which the testator died seized, or which he had contracted to purchase before his death. The proceeds of such as he had contracted to sell must be considered as a part of the' personal estate, in keeping these accounts.

As the interest or income of the real and personal estate cannot be accumulated for the purpose of increasing the shares which are to be apportioned to the seven children and two grand-children at the termination of the trust, no investments in real estate are to be made from the rents and profits or interest, except that which is to be applied near the termination of the trusts to raise the portions for Anna M’Bride and Lydia, and for the children of Augustus. All other rents and profits and income of the trust property, which are not wanted for the immediate and legal objects of the trust, or to reimburse the capital of the trust estate where the income has been anticipated, must be distributed by the trustees, annually, among those to whom such rents and profits or income legally belong. Separate accounts must therefore be kept of the income of the real and personal estate, or of the lands in which the proceeds of each species of property has been or may be invested. And all disbursements, except the payment of debts and funeral expenses, must be apportioned rateably upon the income of each, except so much of the personal estate as is included in the three and a half shares; so that the surplus of the rents and profits of each species of property, as it existed at the death of the testator, may be rightfully distributed. The purposes for which the personal estate included in the three and a half shares was directed to be converted into realty being wholly void, it is not to be considered as equitably converted. The interest or income thereof, therefore, is not to be considered as rents and profits in making such apportionment. The personal estate • included in the other eight and a half shares must be invested in real estate, as directed by the testator. The dower of the widow in those parts of the estate in which she is entitled to dower, or such annual allowance as she may consent to receive in lieu thereof if (Sower is not actually assigned to her, must be deducted from the gross amount of the rents and profits of the real estate, before the apportionment of the charges upon the two funds is made.

Tiie testator intended that the portions for Anna M’Bride and Lydia, and for the children of Augustus, should be raised near the time appointed for the termination of the trusts, so that their legacies or portions, which were to vest in possession at the end of the trust term, should be of the required value, or as nearly so as practicable, at that time. But as the time of the termination of the trust is contingent, the trustees should exercise the discretion conferred upon them by the will in such a manner, with reference to the annual income of the estate and the probable termination of the trust, that the portions may be raised during the term, and be of the required value, as near as practicable, when the trust terminates, No particular injury could result from raising the portions immediately, except as to the valuation; for the rents and profits of these portions, when raised, will, during the continuance of the trust, belong to those who are entitled to the rents and profits out of which the purchase money for these portions is to be paid. If through any inadvertence the trust estate should terminate before these portions were raised, they would not wholly fail. For as this court considers that which should have been done as done, it would direct the portions to be raised out of the rents and profits then on hand. And if the whole had been distributed, the distributees would be compelled to refund.

It is admitted by all parties, I believe, that the annuities and legacies mentioned in the ninth, tenth, eleventh, twelfth, and thirteenth clauses of the will, are valid. And if those are all legal and can be sustained, the annuities to the testator’s two sons William and Henry are also valid ; as the whole of these legacies and annuities are charged upon the rents and profits of the testator’s estate, in the hands of the trustees, during the continuance of the trust term, and in the same manner. The legacy to G-. Hawley the trustee, and the allowance to other trustees who may be appointed in the manner directed by the testator, if that mode of appointment is legal, are also valid, and ..must be paid, together with the expenses of the execution of the trust, out of the rents and profits of the year in which, or at the end of which, the payments become due.

The capital stock of the testator, which was invested in the copartnership with M. D. Burnet, at the time of his death, should be left in the firm for the benefit of Augustus, so long as the lease and partnership continues, in case he continues to attend to the business of the firm as (he active partner, as directed by the 21st clause of the will. But he must account to the estate of the testator for the whole of such capital, whenever he ceases to act as such partner. In other words, he must sustain the loss of any diminution of the capital during the time he is permitted to use it without interest; as he is to be considered the partner, and not the testator’s estate.

The 56th section of the' title of the revised statutes relative to sales of real estate by executors and administrators, (2 R. S. 10.9,) only applied to sales of real estate for the payment of debts and legacies. And it is very doubtful whether it was intended to embrace the case of a sale under a trust power, by an executor, for the mere purpose of re-investment or exchange, as authorized by the 27th clause of this will. But this question is put at rest as to all future sales, by the act of the last session on this subject. (Laws of 1835, p. 304.) By that act, sales of real estate by executors, except where such estate lies in t.he city of New-York, may be made either at public or private sale. But every sale of real estate in that city, by an executor under an authority contained in a will, whatever may be the object of such sale, must be at public auction, upon the like notice and conducted in the same manner as is directed by the revised statutes in relation to sales under the orders of surrogates. The executors and trustees, therefore, are not authorized hereafter to sell any real estate in the city of New-York at private sale, under the authority to sell or exchange, contained in the 27th clause of this will. The authority of executors to sell the Illinois lands for the purpose of re-investment, under this power in trust, and the manner of making such sales, must depend upon the local law of that state.

If I am right in supposing that an inalienable trust term may be created, to continue during the actual minorities of more than two persons in being at the creation of such estate, then there dan be no valid objection to the provision for the support of the testator’s minor children out of the rents and profits of the estate, after the death of their mother. And if this provision is valid, that contained in the 30th clause of the will, for the support of the widows and children of the sons, and the children of the daughters of the testator, who may happen to die during the continuance of the trust, is also valid. Although this last provision includes persons who were not in esse at the testator’s death, it must necessarily vest in interest, if ever, at the termination of one life in being at the creation of the estate or interest; to wit, the life of the son or daughter whose widow or children are thus to be provided for.

The legacies of $2000, authorized to be raised out of the rents and profits, and paid to Anna M’Bride and Lydia respectively upon their marriages, are in effect but the payment of portions of their larger legacies in advance. If the $2000 is raised and paid as a marriage portion, it must, in obedience to the direction contained in the 35th clause of the will, be deducted, together with the compound interest at five per cent., from the amount of the $20,000 portion which is to be raised near the termination of the trust, and that portion will be so much less. And as these marriage portions are given to persons in being at the death of the testator, the raising of them cannot suspend the power of alienation beyond the period allowed by law. These legacies are therefore valid.

As it regards the marriage portion to Mrs. Barker, the event has not happened which was contemplated by the testator at the time of making his will. He undoubtedly intended the marriage portions to bis daughters should be payable, if ever, immediately after their respe ctive marriages. And if his widow and trustees did not think it fit and proper that the daughter should then receive a marriage portion, their power to bestow such a portion upon her would be at an end. He could not, therefore, have intended to delegate the power to his widow and trustees of bestowing marriage portions upon his daughters who might be married in his lifetime; of the propriety of which he undoubtedly considered himself fully competent to judge. As the testator lived more than a month after the marriage of Mrs. Barker, during which time he could in person have exercised the discretionary power of bestowing upon her a marriage portion, I could not, without making a new will for him, authorize the widow and trustees to give such a portion at this time. It is highly probable that the sudden death of Mr. James may have prevented him from giving such an outfit to his daughter, upon her marriage, as was suitable to her station and condition in life. But that cannot authorize the widow and trustees to execute a power which the testator never intended to delegate to them by his will. The provisions for the support of Mrs. Barker, as well as the other daughters and the grand-daughter who might be married before the termination of the trust, is clearly within the spirit and intent, although it is not strictly within the letter of the 33d clause of the will. The object of this provision of the will was to give a discretionary power to the widow and trustees, to advance to the married daughters and granddaughter who were to share in the partition of the testator’s estate at the end of the trust term, such sums as might be necessary for their support and the support of their children, not exceeding a certain amount in any one year. As this was a discretion to be exercised after the death of the testator, from time to time during the continuance of the trust, and which therefore could not be exercised by himself, even as to those who might happen to marry before his death, it would be doing violence to the manifest intention of the testator, to say that this provision of the will was not applicable to the case of Mrs. Barker.

The advances which the widow and trustees are authorized to make to the sons or grand-sons of the testator, by the 31st and 32d clauses of the will taken together, were not intended to exceed in the aggregate one fourth of the probable amount to which the son or grandson, to whom the advances were made, would be entitled upon the ultimate division of the estate. The testator evidently contemplated the event of some of his sons or grand-sons studying a profession or learning a trade, and of others becoming merchants or engaging in some business requiring capital merely, and he intended to provide for all these cases. He could not, however, have intended a double provision to such as should think proper to engage in a multiplicity of occupations. I think he meant to limit the extent of these advances to the probable amount of the portions of the individual to whom such advances were made, at the termination of" the trust, and without reference to the duration of the estate of the individual in such portion. Thus : the advances to Augustus might be to the extent of one fourth of the probable amount of his twelfUxof the estate at the end of the trust term, including such advances with compound interest thereon as provided for by the 35(h clause of the will; but in case he should die during the continuance of the trust, after having received a partial or full advance, that then the amount of such advance, with compound interest, should be deducted from the twelfth of the estate which, in the event of his death during that time, is devised over to his heirs and representatives, by the 39th clause of the will. And if any of such heirs or representatives should happen to he sons or grand-sons of the testator, who had arrived at the age of manhood, they might also have advances to the extent of one fourth of the probable amount of their respective proportions of the residue of the share, after deducting from such share the advances to Augustus, together with such compound interest. The language of the testator in this part of the will, clearly shows that he did not intend to confine the advances to the sons and grand-son named in the 37th clause; but that he also intended to embrace those sons and grand-sons who might take as heirs or distributees under the 39th clause. If by the age of manhood the testator meant the full age of twenty-one years, he has also included a class of persons who could not in any possible event become entitled to advances during the trust terra ; even if the limitations of the contingent remainders to the heirs and distributees by the last mentioned clause of the will were valid. He has provided for an advance to the son of a daughter who might be dead ; but as none of the daughters were married at the date of the will, it was impossible that any such grandson of the testator should arrive at the age of twenty-one during the continuance of the trust. And if by attaining the age of manhood he meant any other, age, under twenty-one, the provision for advances as to all but Augustus, is probably void for uncertainty as to the time at which such advances may commence.

The objection that some of these advances are directed to .be made to persons whose contingent remainders are invalid, because such remainders are not so limited that they must vest in interest within the time prescribed by the 20th section of the statute, might probably be obviated by allowing advances to the sons and grandson, to whom the shares are limited in the first instance; and by disregarding the provision for such advances to those who might become presumptively- entitled to those shares at a future day.if the limitation of the remainders in the 39th clause of the will had been valid. But , there is another and more serious difficulty in this case, which affects the validity not only of the provision for advances to sons and grand-sons, as contained in the thirty-first and thirty-second clauses of the will, but-also the provision for marriage portions and advances to the daughters, and to Mary Ann King, the grand-daughter of the testator.-

Taking the whole of the provisions of this will together, it is impossible to resist the conclusion that the testator contemplated and intended that there should be an accumulation of the rents and profits of the trust estate, by his executors and trustees, during the time prescribed by him for the continuance of the trust. And for this purpose he directs them to invest all monies which may come to their hands in the purchase of real estate; except such monies as may be wanted to pay debts and legacies, and to fulfil the other objects of the trust. This necessarily includes the rents and profits of the estate during the trust term. And the whole trust estate, with such accumulations, is to be partitioned among the objects of his bounty at the termination of the trust. Such an accumulation of the rents and profits of real estate, or of the income of personal property, is clearly illegal, under the provisions of the revised statutes. (1 Rev, Stat. 726, § 37,38. Idem, 773, § 3, 4.)

Judging from (he peculiar form of the clause in this will by which the trust term is devised, E am inclined to think the testator has acted upon the erroneous supposition that an accumulation of the rents and profits of his estate would be valid, if one or more infants in being at the making of the will xvere to be benefitted thereby, provided such accumulation was not continued beyond the minorities of all such infants; and without reference (o the extent of the beneficial interests which such infants were to take in the accumulated fund. It is evident, however, that such could not have been the intention of the legislature. For if such a construction should be put upon the statute, (he accumulation of an estate for twenty years could always be secured, by selecting several infants, upon whose minorities the trust term should be limited, and giving to them mere nominal limited interests in the accumulated fund. The only way to prevent this is to give that construction to the statute which, from the notes of the revisers, it is evident they intended should be given to the language employed to convey the meaning of the legislature. That is, to allow an accumulation of the rents and profits only in those cases where the accumulated fund is for the sole benefit of one or more minors, if they live until they are of age, who are in existence at the time the accumulation is directed to commence, and who will continue such minors, if they live, until the accumulation ceases. Or, in the language of the revisers’ note, “ during the minority of any person or persons who, under the deed or will directing the accumulation, would, if then of full age, be entitled to such rents and profits.” (Rev. note to ch. 1, pt. 2, p. 28.)

But as the direction for the illegal accumulation and that only is made void by the statute, the devise as to the residue of the estate, to which such illegal accumulation of rents and profits was intended to be added, will not be affected by such void direction, if the devise of the original estate can be separated therefrom. It may also be proper here to remark, that the direction for an illegal accumulation is equally void, whether such direction be express, or is merely implied. (Vail v. Vail, 4 Paige’s Rep. 317.) In the present case, the limitation of the expectant estates to the seven children aná two grand-children of the testator, is not rendered invalid as to the eight and a half twelfths of the original trust property, by the express or implied direction of the testator to add the accumulated rents and profits to any of their shares. But as the testator has directed the advances which may be made to those children and grand-children out of the rents and profits, with the compound interest thereon, to be added to their respective shares at the termination of the trust, not for the purpose of diminishing their respective shares of the original estate, a portion of which they thus receive in advance, but for the sole purpose of increasing the original shares of those to whom no such advance or a less advance, is made, it is an indirect mode of accumulating the rents and profits, at compound interest, for the purpose of increasing the shares of the original trust estate, for the benefit of those who are to take estates therein, either in possession or in remainder, at the termination of the trust. The direction to add the amount of the advances, with compound interest thereon,- to the original share of the individual to whom such advances may be made, for the purpose of increasing the shares of others by means of that accumulated fund, is therefore clearly void.

Although the estate of a son, to whom such an advance should be made, and who might happen to die during the continuance of the trust, would not probaly be liable to refund the amount of such advance, yet so far as regards the accumulation for the purpose of increasing the other shares, it is equivalent to a loan of the rents and profits included in such advance, at compound interest, during the residue of the term,- and the addition of a portion of this fund, thus accumulated, to the shares of the others. As this cannot be done, consistently with the restrictions in the statute against the accumulation of rents and profits or income, the intention of the testator in directing these advances to be made cannot be carried into effect, so far as relates to the seven children and two grand-children who are now presumptively entitled to the eight and a half shares of the trust estate.

It is very evident, from the different provisions of the will, that the testator intended that the marriage portions, and other advances which might be made lo his children and grand-children, under the 31st, 32d and 33d clauses, should be in the nature of mere advances out of the accruing rents and profits of the shares or portions of the estate to which they were presumptively entitled at the termination of the trust. And if they are by law entitled to the whole of the rents and profits not legally and effectually disposed of by the will, of the several shares or portions of the. estate to which they are presumptively entitled on the final division, it would defeat' the manifest intention of the testator to permit such advances to be made out of, or to be charged upon, the rents and profits of the trust estate generally. I will therefore proceed to inquire to whom the rents and profils and income of the estate, which are not legally and effectually disposed of by the will, belong, either by the rules of the common law, or under the provisions of the revised statutes.

' By the common law, where the legal estate was devised to trustees to preserve contingent remainders, or for any other legal purpose, so much of the rents and profits as were not legally and effectually disposed of by the testator, belonged to bis heirs during the continuance of the trust estate, by the operation of a resulting trust. (Hopkins v. Hopkins, Cas. temp. Talbot, 44. Carrick v. Erringion, % P. Wms. Rep. 362.) The limitations over to the children and grand-children of the testator, in the present case, were not intended to take effect immediately, even if the trusts are invalid so as to be insufficient to support a legal estate in the trustees. But they are to take effect and be vested in possession, by the express words of the will, only at the expiration of the period prescribed by the testator for the continuance of the trust. The intermediate rents and profits, therefore, by the common law, would have belonged to the heirs of the testator, so far as such rents and profits were the proceeds of the real estate of which he died seized ; and so far as they were the proceeds of his personal property, they would have been distributed to the widow and next of kin. A different rule, however, has been introduced by the 40th section of the article of the revised statules relative to the creation and division of estates. (1 R. S. 726.) That section provides for the case of surplus rents and profits which may accrue during the suspense of the power of alienation, or of ownership, by means of a valid trust of the legal estate; by giving such rents and profits to the person who is presumptively entitled to the next eventual estate in the premises. As the estate of the trustees must continue so long as any of the children or grand-children who were living at the date of the will are minors, unless it should sooner terminate by the death of all the annuitants and others for whose benefit a trust to receive rents and profits could be legally created, the persons presumptively entitled to the next eventual estates in eight and a half twelfths of the trust property are the seven children and two grand-children named in the 37th clause of the will. They are, therefore, for the present, entitled to that portion of the surplus rents and profits which may accrue, from time to time, from the eight and a half twelfths of the property. But the substituted contingent remainders in the eight and a half shares, as limited by the 39 th clause of the will, being invalid, if any of the children or grand-children named in the 37th clause should happen to die during the continuance of the trust term, a new rule of distribution must then be adopted. The heirs at law of the testator have, in that case, a vested interest in the reversion of so much of the shares of such decedents as is composed of the testator’s real estate, or the proceeds thereof, and the widow and next of kin have a vested interest in the reversion as to the remaining parts of such shares. And the rents and profits of the shares of such decedents must, thereafter, from the time of their respective deaths, be distributed accordingly, during the residue of the time prescribed by the testator for the continuance of the trust estate.

The trust to receive the rents and profits, and to pay the annuities out of the same, during the period prescribed by the testator for the continuance of the trust, does not render the estate inalienable beyond that time, even if a trust for the payment of an annuity is not to be considered as a trust for the payment of several sums in gross at stated periods; as the interests of the annuitants may then be sold, if not before. The annuities to such persons as are in existence at the expiration of the trust term must then be secured to them respeclively, by a charge upon the. original trust estate, or the proceeds thereof, independent of the portions raised out of the rents and profits for Anna M’Bride and Lydia, and the children of Augustus; so that every part of such original trust estate, which then remains, except the 10,000 legacy to James King, shall bear and be charged with its rateable proportion of the annuities thereafter to become payable. But during the time appointed for the continuance of the trust, the annuities, and all other sums properly chargeable upon the rents and profits, must be-paid out of the gross amount of the annual income, before a distribution of any part of the rents and profits for the year is made to the heirs and widow and next of kin of the testator, or to the individuals who are then presumptively entitled to the next eventual estates in the undivided shares of the premises.

The amount of the commissions to be allowed to Augustus for collecting the rents and profits of the estate, is by the 33d clause of the will submitted to the discretion of the other trustees. This discretion they may exercise from time to time, in reference to the trouble and expense of the duty to be performed. And so long as the discretionary power of the'. trustees is exercised in good faith, this court has no right to: interfere to control its exercise. The master reports that four ^ per cent, would be a proper and sufficient compensation for the collection of the rents; and if the trustees suppose with him that five per cent, is more' than a reasonable compensation for the services to be performed, taking into consideration the safety of the fund collected and the different places at which the rents are to be received, the allowance should be reduced. But as five per cent, is the usual allowance in the city of Albany, this court is not authorized to say the trustees have abused the discretionary power confided to them by the testator, by allowing that amount as a compensation to Augustus James for his services in this respect.

The trustees are not authorized to employ a clerk, and pay him out of the income of the estate, for the performance of services which the testator intended the trustees, or any of them, should perform in person. Augustus, therefore, would not be authorized to employ a clerk or agent, to collect the rents. and to pay him out of the estate. Neither should Mr. King be allowed to employ a cleric or agent to sue,for and collect the debts due to the estate, and to make a charge therefor beyond the usual allowance to himself for professional services. But the testator could not have supposed it possible that all the various and complicated accounts of this estate could be kept, and the necessary writings and papers relative thereto be drawn and prepared by Mr. Hawley in person, for the annual allowance of $500, which he has given to him for his personal services. The employment of a clerk for the purpose of making and keeping such accounts, under the direction and superintendence of Mr. Hawley, is therefore a reasonable and proper charge to be borne by the estate. Besides; the election of the widow to take her dower in the real estate, and the failure of some of the trusts of the will, must necessarily increase the trouble and expense of keeping the accounts, far beyond what was contemplated by the testator.

As the personal property of the testator is directed to be converted into real estate for the purposes of the trust, and as such conversion is valid so far as relates to the eight and a half twelfths thereof, it must in equity be considered as already converted, pro tanto. The several legacies, portions and annuities are, therefore, properly chargeable upon the income of that portion of the personal property which is included in the eight and a half shares, as a part of the real estate, out of the rents and profits of which the testator has directed the legacies, portions and annuities to be raised and paid. But as the direction to convert the three and a half twelfths of the personal estate must wholly fail, in consequence of the illegality or invalidity of the object for which the conversion was directed, it remains personal property, and cannot be considered as •producing rents and profits, within the meaning and intention of the testator. That portion of the estate, with the interest thereon, after the payment of debts and funeral expenses, may therefore be distributed, immediately, to the widow and next of kin of the testator. So much thereof as belongs to minor children, and so much of the surplus rents and profits belonging to such minors as are not wanted for their support, should be paid into court, by the trustees, or be invested by them in the name of the register, for the benefit of the minors. And Mrs. James, the testamentary guardian of the unmarried children, should have liberty to apply to the court from time to time, for such allowances, out of the property of her wards, as may be proper for their support and education.

A trustee who has only a delegated discretionary power. cannot give a general authority to another to execute the same, unless he is specially authorized so to do by the deed or will creating such power. A general authority to an agent to sell and convey lands belonging to the estate, or to contract absolutely for the sale of such lands, cannot therefore be given by the trustees. But they may entrust an agent with an authority to make conditional sales of lands lying at a distance from the place of residence of the trustees, subject to the ratification of such trustees or any two of them. And they may also empower him to make and execute valid conveyances of the land thus sold, upon a compliance with the terms of sale, after such sales have been so ratified by them. The purchaser in such a case, however, would probably be bound to show that this condition precedent had been complied with, in order to render his title perfect, where the conveyance was executed by the agent under such a power. The better course in a case of this kind therefore is, to entrust the agent with a discretionary power to contract, subject to the ratification of the trustees, upon his report of the facts; and that they should themselves execute the conveyance, when the terms of the sale have been complied with, and transmit it, properly acknowledged, to the agent, to be delivered to the purchaser.

So far as relates to the rights of the infant defendants who are interested in the rents and profits of the real estate, the court can authorize the trustees to agree upon an annuity, to be allowed to the widow during the continuance of the trust, if she shall so long live, in lieu of dower; to be paid out of the income of that part of the estate in which she is either legally or equitably entitled to dower. And if all the adult parties assent to it, a reference will be directed to a master to ascertain what is a reasonable allowance. But if such consent is not given, one third of the real estate of which the testator died seized must be assigned to her for her dower; and she must also have one third of the net amount of the rents and profits of the land in which she is entitled to equitable dower, or one third of those lands must be assigned to her for that purpose. Or, if she and the trustees prefer it, they may continue to receive the whole rents and profits of that part of the estate in which she is entitled to dower, and accouut to her for one third, after deducting her proportion of the expenses of collection and other incidental expenses and commissions, including repairs and a reasonable proportion of the cost of permanent improvements.

Th ere can be no reasonable objection to the periodical settlement of the accounts of the trustees, before a master, as asked for by their bill, so long as the suit is pending and remains in full life. It may, therefore, be referred to a master to take and state the accounts of the executors and trustees with the several and respective parties to this suit, upon the principles established by the decree; and also to report the proper form of conveyances to be taken by such trustees up. on the purchase of real estate. The master must also examine and report the facts in relation to the claim of Augustus James to the Syracuse property; and whether such property is in any way connected with the partnership, between the testator and Burnet, the profits of which were bequeathed to Augustus by the will.

As the case under consideration is very complicated, it, is probable I may have overlooked some point which should be decided at this time; and many new questions may arise out of the decision of some of the main points in the cause. None of the collateral questions which were not fully discussed on the former argument will, therefore, be considered as fully decided until the settlement of the decree; at which time I propose to hear the counsel for all the parties who choose to attend, as to any thing contained in the drafts of the decree, or the amendments to the same which they may severally present. And I will then hear a re-argument, if necessary, as to any of these collateral points.

The executors were right in filing their bill to ask the direction of the court, as they could not safely execute the trust until a legal construction was given to the will, and to the several anomalous provisions contained therein. And the cross bill and supplemental bill were also proper, for the purpose of bringing the several questions more fully before the court, together with the new parties who had become interested subsequently to the filing of the original bill. The costs of all parties should therefore be paid out of the personal property of the decedent as to which he died intestate. And all further directions, and all questions not disposed of at the settlement of the decree, must be reserved until the coming in of the report of the master, or until the further order of the court. Liberty must also be reserved to any of the parties to apply to the court from time to time for such further directions as may be necessary; due notice of any such application being given io all parties interested in the question to be decided.

Blakeney v. Blakertey, 8 8im. JSep, 52,

See Vance v. Huling, 2 Yerger's Rep. 135.

Sec Muldrow’s Ex'rs v. Muldrow’s Heirs, 2 Dana’s Rep. 386 ; Prytharch v. Havard, 6 Simons Rep. 9.