Hone v. Van Schaick

7 Paige Ch. 221

Opinion

The Chancellor.

Some questions embraced in the pleadings and points of the parties, before the vice chancellor, were not finally disposed of by the decree ; but as there is no appeal on that ground, and the decree reserves the right to the parties to apply for further directions as to any matters not disposed of by the decree, they cannot be taken into consideration at this time. And as none of the parties have appealed from that part of the decree which declares the validity of the legacy of $30,000, to the widow and son of the testator upon an undefined and secret trust, the question cannot now be raised whether such a limitation of personal property in trust is valid, under the provisions of the revised statutes relative to the accumulation of personal property and to expectant estates in such property. (1 R. S. 773, § 1, 2.) It is also proper to remark that some parts of the appeals embrace matters in which the appellants have no interest, either as trustees or otherwise, in having those parts of the decree reversed ; and where parties to the suit who are the only parties aggrieved, if the decree is erroneous in those respects, have not thought proper to complain thereof. Those parts of the decree cannot be reversed upon these appeals, even if I should arrive at the conclusion that the decision of the vice chancellor was wrong in respect to the matters in which these appellants have no interest in reversing the decree. For it is well settled that no person is authorized to appeal from a decree unless he is aggrieved by it. And that a party who is aggrieved by one part of a decree only, cannot by appeal call in question another part of the decree in which he is not interested. (Cuyler v. Moreland, 6 Paige’s Rep. 273. Idley v. Bowen, 11 Wend. Rep. 227.)

As to the most important questions in this cause, which arise upon the appeals of the complainants and of Eliza Hone and her minor daughter, from that part of the decree embraced in the first four clauses thereof, and involving the validity of the trust term and the several trusts depending on the same, as well as of the several remainders limited thereon, I have no doubt that the decision of the vice chancellor must be sustained ; in conformity with the decisions of the court for (he correction of errors in the cases of Coster v. Lorillard, (14 Wendell, 265,) and of Hawley v. James, (16 Id. 61.) In the first of those causes it was decided that in the case of a devise in trust of an entire estate, to receive the rents or income thereof and to distribute it among several cestuis que trusts, it could not be considered as a seperate devise of the share of each cestui que trust, so as to protect the share of each cestui que trust as a tenant in common during his own life; and that as the trust was to endure for a longer period than two lives in being at the death of the testator the whole devise in trust was void. And in the last case it was decided that the absolute power of alienation could not be suspended by means of a trust term, unless the term itself was so limited that it must necessarily terminate during the continuance or at the expiration of not more than two lives in being at the death of the testator. Here there is an absolute limitation of a trust term for twenty-one years in gross, and a disposition of the rents and income of the property during the whole of that period; even if the whole of the testator’s children and grandchildren who were in being at his death shall have died before the expiration of the twenty-one years. And provision is made for the division of the rents and income in that case, for the residue of the term, among their descendants who may not have been in existence at the commencement of the trust term. The whole trust estate and the several remainders limited thereon are therefore void, according to the decision of the court of dernier resort in James’ case; as the remainders depend upon the power to partition the estate after a suspension of the power of alienation for more than two lives in being at the death of the testator. The real estate therefore descended to the heirs at law, upon the testator’s death, and the complainants took the personal estate, in their character of executors, discharged of the special trusts as to the income thereof during the trust term .and afterwards. So much of the .personal estate therefore as was not legally disposed of by the testator in other parts of the will and cocqc¡]S) bek,ngs to the widow and next of kin of the testator; and must be distributed among them by the executors in the same manner as in cases of intestacy.

As the widow and the niece of the testator have not appealed from that part of the decree which declares that the annuities to them,and which are payable out of the fund directed by the testator to be created out of the rents and profits of the real and personal estate, are void, it is probably unnecessary that I should consider the question whether such annuities can be charged upon the personal estate .not otherwise legally disposed of by the will. I think however they must fail on the ground that they were not intended by the testator to be charged upon his estate generally, but only upon the particular fund which has failed by reason of the illegality of the direction for its creation. So far as respects the annuity to the widow in lieu of her dower, it cannot be charged upon the personal estate generally, for another reason. As her annuity was payable out of the income of the estate and not out of the principal thereof, it would be wholly inconsistent with the intention of the testator to give to her the one third of such principal of the personal estate, as property not legally disposed of, and at the same time to give her the annuity which by the will was payable out of the income of the same property as a part of the trust fund. This disposes of the appeals from the decision of the vice chancellor contained ¡ in the fifth clause of the decree, even if the present appellants were the proper parties to appeal therefrom and had an interest in the reversal of that part of the decree.

I can see no possible objection to the sixth clause of the decree, which declares the devise of the mansion house, and the bequest of the furniture, books, plate, and carriages and horses to the widow-to be valid; subject to her right of election to recieve them in lieu of her dower in the real estate. These specific devises and bequests are in no way connected with the illegal trusts and limitations, in .the will. And although the testator had also given to her the annuity which is declared to be illegal, as a part of the consideration for the relinquishment of her dower, she still has the right, if she thinks proper to do so, to accept of a part of what was intended for her by the testator as an equivalent, and to relinquish her dower for that consideration only. Even if she had precluded herself from claiming her dower by receiving the annuity given to her by the will in lieu thereof, and by neglecting to commence proceedings for the recovery thereof within a year from the death of her husband, she ought not in equity to be bound by that election, except as against bona fide purchasers or mortgagees, when the principal part of the consideration for the relinquishment of her claim has been taken from her by the decree of this court declaring the annuities to be invalid.

The provision in the decree for a reference to a master to take and pass the accounts of the executors, with a view to the distribution of the personal estate of the testator, not legally disposed of by his will, among the next of kin of the decedent, was but a necessary consequence of the decision that the trusts of the will and the interests limited upon the trust term were invalid ; as by the provisions of the revised statutes in relation to the limitations of interests in personal estate, the absolute ownership thereof cannot be suspended by any limitation or condition whatever for a longer period than the power of alienation of real estate can be suspended. And in all other respects limitations of future or contingent interests in personal estate are subject to the same rules which are prescribed by the revised statutes in relation to future estates in lands. (1 R. S. 761, tit. 4.) Dispositions of the rents and profits of land to accrue and be received subsequent to the execution of the instrument creating such dispositions thereof are considered as future estates and interests, and are subject to the rules established by the revised statutes in relation to other future estates in lands. (1 R. S. 726, § 36.) And in analogy to this provision relative to the rents and profits of lands, a bequest of the interest or income of personal estate, to accrue and be received after the death of the testator, is a limitation of a similar interest in personal estate and must be subject to the same rules. The limitation of a trust of personal estate, to receive the future interest or income thereof and to apply jt t]¡c use 0f the cestui que trust for life or any shorter period, as authorized by the fifty-fifth section of the article of the revised statutes relative to uses and trusts, renders the interest of the cestui que trust in such income inalienable, according to the provisions of the sixty-third section of the same article. Such a limitation therefore suspends the absolute ownership of the trust fund; as the trustee cannot dispose of the fund absolutely, even with the assent of the cestui que trust, without being guilty of a breach of trust. And if the trust to receive and apply the interest or income is so limited as to suspend the absolute ownership for more s than two lives in being at the death of the testator, such limitation is void. In the present case, as the limitations in trust of the real and personal estate were the same, as well as the power in trust to partition and divide the same after the expiration of the twenty-one years, it followed, as. a necessary consequence, that if the limitations were void as to the real estate they were equally void as to similar interests which the testator had attempted to create in relation to this part of his personal property.

Being satisfied that there is no valid objection to this part of the decree, it only remains for me to consider the question whether the vice chancellor was right in that part of the decree which is appealed from by Van Schaick and others. The several legacies of $6000 each, to the grandchildren of the testator, are not payable out of the interest or income of the property, but are directed to be paid out of the personal property generally. They are no part of the trust fund devised and bequeathed to the executors upon the special trust mentioned in the will. They are therefore to be raised out of the personal estate in the hands of the complainants in the character of personal representatives of the testator merely', and not by virtue of any special trust. And the amount of each legacy, if valid, must be raised out of personal estate, and be securely invested for the legatee until it becomes payable according to the terms of the will; and the interest or income of the fund in the meantime belongs to the widow and next of kin of the testator, as property not disposed of by the will. But as the interest of each legatee in his or her $6000 legacy was limited to commence in possession at a future day, the bequest of the legacy was a limitation of a future estate or interest in personal property, according to the statutory definition of a future estate. (1 R. S. 723, § 10.) The validity or invalidity of each of these legacies payable at a future day, must therefore depend upon the rules of the revised statutes which are applicable to the devise of a similar future interest or estate in land. Each legacy being carved out of the personal estate at the death of the testator, or within the year allowed by law and the practice of the courts for the settlement and distribution of the testator’s personal property, is in the nature of the limitation of a future estate in fee in lands after the expiration of a term of years, and without the intervention of a precedent estate by the will: the present interest in the land, or the right to receive the rents and profits during the term, descending in the mean time to the heirs at law of the testator as an interest in the land not legally disposed of by his will. The limitation of such a future estate in land, whether the same is vested or contingent, is authorized by the revised statutes, if limited to a person in being at the death of the testator; provided it is so limited that it must vest in interest, if ever, during the continuance of not more than two lives in being at the death of the testator. Here the limitation is, in terms, to grandchildren in being at the death of the testator. And if the legacies are not vested in interest at that time, but remain contingent until the parents or the surviving parent of the respective legatees has given the written direction for the payment thereof, the legacy must still vest in interest before the termination of the lives of the two parents, who were in being at the death of the testator. The legacy therefore must be vested in interest in the legatee, if ever, at or before the termination of the lives of both of his parents.

The conclusion then at which I have arrived in this case is, that the decree of the vice chancellor is not erroneous in any of the provisions thereof which are called in question by these appeals. It must therefore be affirmed. And the costs of all the parties upon the appeals must be paid out of that part of the testator’s personal estate which is not legally disposed of by the will. As some of the parties are understood to have died since the perfecting of the appeals, the decree of affirmance must be entered nunc pro tunc as of the 5th June, 1837; and the proceedings are to be remitted to the vice chancellor.