After advisement, the following opinion was delivered:
By CowE2í, J.
An easy solution of the main difficulty raised by these appeals, is to be found in that feature of the will which converts the whole of the property under question into personal estate. A trust in the executors is created with imperative directions to sell as soon as may be the testator’s whole real estate, except certain specified portions not now in question, and appropriate the avails to the purposes of his will, in connection with his other personal property. It is of the nature of such a trust that immediately on the testator’s death, and for all the purposes of testamentary disposition, the real becomes personal property in every sense; and must be treated precisely as if it had been so before. This is a position so entirely clear, that nothing was introduced among the printed points of either ^appellant, to the contrary. It was not denied in argument to be [ *660 ] the settled doctrine; but, as' an incidental complaint was thrown out, that it is but a fiction, which ought not to stand in the way of the revised statutes when they come to destroy trusts, ive may as well look at the strength of the footing which it has obtained in our law. In Jarman’s edition of Powell on Devises, it is said, “ on the principle that equity considers that as done, that ought to have been done, it has been long established that money directed to be employed in the purchase of land, and land directed to be sold, and turned into money, are to be considered as that species of property into which they are to be converted ; and this in whatever manner the direction is given, whether by zvill, by contract, &c. It follows, therefore, that every person claiming property under an instrument directing its conversion, must take, ¿é in the character which that instrument has impressed upon it, &c. This principle is obviously founded in justice and good sense, &c. It is, besides, too well settled by numerous authorities to be called in question at this day.” An unbroken series of cases are cited by the book, ranging from Charles 2, to the time when the learned editor was writing. 2 Jarman’s Powell, ch. 4, p. 60. In a late work devoted to the doctrine of equitable conversion, it is said to be “ highly interesting, as involving consequences of great importance to the community at large.” And though difficulties may arise in its application," it is reducible to some of the most just and simple principles on which the jurisprudence of our courts of equity has been formed.” Leigh and Dalzell on Eq. Conversion, ch. 1, p. 1. It will be seen by the cases cited in 2 Powell, 64, and Leigh and Dalzell, 48, that where executors are clothed with a trust to sell the real estate for [660] money, and appropriate the avails to the uses of the will in the form of personal property, no doubt was ever entertained that it must be considered in equity, the same as if the testator had himself sold land, and then" bequeathed the consideration money. Sitting in a court of equity, therefore, we can no more refuse to consider the whole of the real property in question as personal, than we could in a court of law, if the tea- [ *661 ] tator had himself chosen *to make it physically so, and then had bequeathed it. By his own act he had the power to throw it into this shape either by sale or by will; and if in either way it be thus withdrawn from the operation of the statute concerning trusts, it is only in the exercise of a power by the absolute owner of property which no court or legislature ever thought of denying. This is the first time in centuries, and indeed the only time in our judicial history, that a doubt has been started on the effect of provisions such as are contained in this will. In the progress of the inquiry, therefore, ! shall assume that the question stands entirely on the porver of a testator to create a trust and limit estates in his personal property. The doctrine of trusts and limitations of real estate has nothing to do with it, farther than the revised statutes may have expressly brought personal property to the same footing or measure.
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After advisement, the following opinion was delivered:
By CowE2í, J.
An easy solution of the main difficulty raised by these appeals, is to be found in that feature of the will which converts the whole of the property under question into personal estate. A trust in the executors is created with imperative directions to sell as soon as may be the testator’s whole real estate, except certain specified portions not now in question, and appropriate the avails to the purposes of his will, in connection with his other personal property. It is of the nature of such a trust that immediately on the testator’s death, and for all the purposes of testamentary disposition, the real becomes personal property in every sense; and must be treated precisely as if it had been so before. This is a position so entirely clear, that nothing was introduced among the printed points of either ^appellant, to the contrary. It was not denied in argument to be [ *660 ] the settled doctrine; but, as' an incidental complaint was thrown out, that it is but a fiction, which ought not to stand in the way of the revised statutes when they come to destroy trusts, ive may as well look at the strength of the footing which it has obtained in our law. In Jarman’s edition of Powell on Devises, it is said, “ on the principle that equity considers that as done, that ought to have been done, it has been long established that money directed to be employed in the purchase of land, and land directed to be sold, and turned into money, are to be considered as that species of property into which they are to be converted ; and this in whatever manner the direction is given, whether by zvill, by contract, &c. It follows, therefore, that every person claiming property under an instrument directing its conversion, must take, ¿é in the character which that instrument has impressed upon it, &c. This principle is obviously founded in justice and good sense, &c. It is, besides, too well settled by numerous authorities to be called in question at this day.” An unbroken series of cases are cited by the book, ranging from Charles 2, to the time when the learned editor was writing. 2 Jarman’s Powell, ch. 4, p. 60. In a late work devoted to the doctrine of equitable conversion, it is said to be “ highly interesting, as involving consequences of great importance to the community at large.” And though difficulties may arise in its application," it is reducible to some of the most just and simple principles on which the jurisprudence of our courts of equity has been formed.” Leigh and Dalzell on Eq. Conversion, ch. 1, p. 1. It will be seen by the cases cited in 2 Powell, 64, and Leigh and Dalzell, 48, that where executors are clothed with a trust to sell the real estate for [660] money, and appropriate the avails to the uses of the will in the form of personal property, no doubt was ever entertained that it must be considered in equity, the same as if the testator had himself sold land, and then" bequeathed the consideration money. Sitting in a court of equity, therefore, we can no more refuse to consider the whole of the real property in question as personal, than we could in a court of law, if the tea- [ *661 ] tator had himself chosen *to make it physically so, and then had bequeathed it. By his own act he had the power to throw it into this shape either by sale or by will; and if in either way it be thus withdrawn from the operation of the statute concerning trusts, it is only in the exercise of a power by the absolute owner of property which no court or legislature ever thought of denying. This is the first time in centuries, and indeed the only time in our judicial history, that a doubt has been started on the effect of provisions such as are contained in this will. In the progress of the inquiry, therefore, ! shall assume that the question stands entirely on the porver of a testator to create a trust and limit estates in his personal property. The doctrine of trusts and limitations of real estate has nothing to do with it, farther than the revised statutes may have expressly brought personal property to the same footing or measure.
The revised statutes concerning uses and trusts, 1 R. S. 721, 2d ed., have of themselves nothing to do with personal property, either directly or by reference. That statute declares that uses and trusts, except as authorized and modified in article second, are abolished. § 45. The whole article is then in terms confined to real estate or its rents and profits. The 55th section declares and defines the only express trusts which can" be fastened on such estate ; and there the only trusts at all analogous to those now in question are spoken of in the third and fourth subdivisions of the section, viz. a trust to pay over the rents and profits, and to accumulate them for the benefit of persons named or not in esse. There is nothing in any part of the statute tying up the trust in personal property to receiving and applying the income to the use of any person, or otherwise restricting the mode of appropriation. The third subdivision speaks of the rents and profits of lands only. The right to these are, by § 63, declared inalienable. Such a provision has been, therefore, looked upon by several cases as furnishing one sort of element by which a limitation may be destroyed. In any view, the statute should be construed with great strictness. It is supposed that 1 R. S. 761, 2, 2d. ed. § 1 and 2, place both real and personal [ *662 ] property *on the same narrow footing as to a declaration of trust. But that is not so. These sections relate exclusively to limitations of future or contingent interests in personal property, making them subject to the same rules asTimitations of future estates in lands. The word limitation, when applied to future or contingent estates, regards the time at, [662] or condition upon which they are to vest, either as an interest or in possession. The same word when applied to a vested estate, regards its duration. Toml. Dict. Limitation of Estate. 1 Preston on Estates, 38, 40, Am. ed. of 1828. In neither sense has it any respect to the particular manner in which the beneficiary is to be supplied under the trust. The latter is a mere appropriation of the fund ; and may at common law, be as various as the purposes of the donor. Limitation is another matter. When the interest is vested, this may be long or short according to the pleasure or caprice of the donor, because the land may always be aliened. But when the limitation is on a contingency it must be confined within certain boundaries of time ; otherwise you run into an objectionable, perpetuity. This is about all that is meant by the various provisions of the revised statutes against perpetuities. Thus the revisors say, in commenting on § 14, 1 R. S. 718, 2d ed., “ To prevent a possible difficulty in the mind of those to whom the subject is not familiar, we may also add that an estate is never inalienable, unless there is a contingent remainder, and the contingency has not yet occurred. This is the meaning of the rule of law prohibiting perpetuities, and is the effect of the definition in § 14.” 3 R. S. 573, 2d ed. Under the old law, the objection commonly arose on executory devises.. I know that in the case of real estate, § 14 has been extended by construction to a vested interest under § 55 and § 63. But that was grounded on the restraint of alienation arising from the mode of appropriating rents and profits in a trust of real estate, and real estate only ; not by reason of the contingent limitation. In the case of personal property, we are still left to the rule in the revisers’ note. We are, on the point of perpetuity, to regard the contingent character of the limitation alone ; and if the event be *not too [ *663 ] remote, the limitation is valid, whatever be the form in which the trust is to be executed. The provisions in regard to estates in personal property are made by a distinct title of the statute, and profess to treat of accumulation and expectant estates only. Tit. 4, p. 761 of vol. 1. This title is in detail confined to those objects. The first section limits the suspension of absolute ownership to two lives. This suspension, as we have seen, is predicable of contingent estates only. Then the second section is, that in all other respects, limitations of future or contingent interests shall be the same as if the subject were real estate. The remaining three sections of title four regard accumulation, which may, and in its nature, must be generally conducted through the medium of a trust. And here alone do we find any thing directly cutting down the power to create trusts in personal property.
But counsel recur to the broad meaning of the words used in the statute of trusts. “ Trusts, except as authorized and modified in this article, are abolished.” 1 R. S. 721. We are told that the only trusts authorized by [663] the article are those implied by law, § 50, and the few express trusts enumerated in § 55. Taking the broadest abstract meaning of the word trusts, and disregarding the context, the counsel arc right in saying that all express trusts in personal as well as real property would be included. Tho clause in a will directing an executor to apply a portion of the assets to any particular purpose, as to procure a monument or an epitaph, would be void. So all charitable trusts, and,, for aught I see, all legacies in a will. These and 1 the like are no less than express trusts. All that the law would imply as the duty of an executor, would be to collect and pay debts with funeral expenses, and distribute the balance of the estate among the next of kin. All the express trusts of business life, this side the grave would also be abolished. Instructions to servants, factors, auctioneers, all special agencies accompanied by bailment would be destroyed. A vivid imagination might even carry the provision into the moral world, and say that men should no longer repose a trust or confidence in one another. By cutting off" all that fol- [ *664 ] lows in and *after the first section, one knows not what would set bounds to the extravagance of construction. Whereas the very first section, when read through, shows clearly the limitation under which it must be taken. The whole of it is thus, § 45 : Uses and trusts, except as authorized and modified in this article, are abolished ; and every estate and interest in lands shall be deemed a legal right cognizable as such in courts of law.” Every subsequent section of the article, from 45 down to 7 2, uses language most obviously applicable to technical trusts in real estate, and nothing else. I have already shown that there is nothing in the subsequent provisions concerning personal property which can, without a perversion of language, be made referable to any provision in this article. They refer to the next previous one on estates ; to what extent it is not necessary to enquire while considering the mere declaration of trust. The learned chancellor being clearly right in saying that this was so far a common law matter, it becomes unnecessary, at'least for the present, to institute an examination of its validity on the hypothesis that it comes within the 55th section.
The only question remaining is, how far the limitation of the trusts conform to the provisions in article first concerning the creation and division of estates. The bequests of annuities to the sister in law and mother of the testator are distinct independent vested legacies payable out of the' principal of the fund. The executors are, by the will, created trustees with the express duty to make the payment. The whole stands on the footing of any other common pecuniary legacy ; and unless the statute has abolished the trust in executors to pay legacies, it is valid. Tho same thing may be said of the neices, so far as the legacies are for their benefit personally. Quoad, hoo there is no contingent estate in question ; but the limitation is of a pres[664] ent vested estate in each for life. The provision for accumulation during their minorities is expressly authorized by the statute. 1 R. S. 767, § 3, sub. 1.
Passing beyond the immediate lives of the nieces, we do find ourselves in the region of future and contingent estates ; and here the statute of limitation of estates becomes applicable. ^Admitting the cross [ *665 ] remainders between the neiccs to be contingent, it cannot be pro-tended that they are void as being too remote. They are clearly within the compass of two lives in being. We then come to the issue of the nieces. The limitation'of income to them was a contingent remainder. So to the surviving husband of the niece who should die leaving issue, living the other niece. The husband being unmarried, and the issue unborn, both events and persons were uncertain. The final vesting of the absolute property is also made to fluctuate on various events, but the provisions in these respects aim at no events which can be questioned as too remote. All the contingent provisions as to income in favor of any person beyond the nieces, were cut off by the chancellor as illegal and void ; and that part of the decree which does this, is not appealed from. Pro tanto, he held that the income was undisposed of and ordered it to be paid by the executors to the testator’s next cf kin or heirs according to the nature of the estate out of which it may arise. That part of the decree which makes this consequential distribution, is appealed from ; but no distinct point was made against it, and very little said about it on the argument. It struck me at first that the whole income arising from the avails of the real estate, even the income undisposed of by the will, should be considered as personal estate, and go to the next of kin. However, another view is, that, so far, the income being untouched by the will, it is not converted ; but left to its original character, as income from real estate. This may be refining too much ; but without farther discussion, I am not prepared to say that the refinement has no foundation. The question seems to be practically of but little moment in any point of view. There is nothing that I see in the statute concerning the limitation of estates, carrying any of this undisposed income to the next eventual taker.
The most important consequence sought to be drawn from the will being void in respect to these remote collateral provisions, is, that therefore the whole is necessarily void. Nothing is better settled than the direct contrary ; and the contrary was held by this court in the late case of Darling v. Rogers, 22 Wendell, 483. That a will or any [ *666 ] other instrument passing an estate may be void in part, and yet good for the residue, was never doubted, when the division into good and bad parts was made by force of the co trim on law; and Darling v. Rogers maintained a trust deed under the revised statutes in such parts as were good, though one declaration of trust was void. I know there are a sort of [666] standing quotations to the contrary, of cases decided by this court. They appear upon the printed points: Coster v. Lorillard, 14 Wendell, 265; Hawley v. James, 16 id. 61; Root v. Stuyvesant, 18 id. 257. So far from sanctioning the doctrine for which they are cited, the opinion of every judge who spoke to those cases expressly denied it. It is true, that the wills in question went pretty much by the board; but all that can be said as a consequence is, that the conservative rule was not liberally applied. If that be so, it is sufficiently unfortunate; for there is no rule of law which calls for greater latitude and even ingenuity in enlarging and extending it. The most able and safe judges have said that the courts should be astute in allowing it a comprehensive operation for the giving effect to all instruments, and especially to last wills and testaments; and though some parts may be contrary to the rules of law, yet all other parts should be saved. Any court acting systematically upon the opposite principle, would be a great evil.
But the' sixth and seventh clauses of the decree pronounce the income in the hands of the nieces and their issue inalienable, as if it came within the 63d section concerning express trusts. I have already given my reasons why this cannot be so : and perhaps the appellants might, on a proper course,, have had the decree modified in the parts mentioned. The learned chancellor thought that if the income were derived from real estate, the trust would yet have been valid within the. third subvision of § 55. Perhaps he is right; but at any rate he is clearly so in saying that all, so far, is personal estate ; and therefore I have inferred that the question cannot arise under that subdivision. The rules of real property are not impressed upon personal property, except as to future contingent limitations. [ *667 ] Here the income *is vested in the nieces; though I admit it is future and contingent in the remainders. But the 63d section is not a section of limitation. It merely impresses an inalienable character on the income of real property, which happens to be appropriated in a certain form. It disqualifies the beneficiary to alien. It treats him as it would an infant, by imposing a personal disability. It is in derogation of common right, and ought not to be extended by analogy or construction. The decree aims so to extend it. But I am not- prepared to say that it should therefore be modified. There is, to be sure, a simple appeal from those parts of it which I think are erroneous $ but the points made, and the whole drift of the argument by the counsel for the appellants, were opposed to the idea that the income of personal estate can be put in trust for any other purposes than are allowed to rents and profits of land ; and though the respondents denied this, they still maintained the chancellor’s reasoning, from construction and analogy. The question of inalienability, therefore, has not been argued. The counsel on both sides agreed in the propriety of the income being considered inalienable, provided the will is to be maintained in its prin[667] cipal provisions, as it clearly must. Beside, the declaration in the decree, that the income shall be inalienable, cannot have any effect, except as a temporary direction and qualified protection to the executors. A decree that property in A.’s hands shall be inalienable, will not make it so. Suppose he takes a title in fee simple under a decree for a specific performance, and the decree should go on to say that it should remain inalienable in his hands ; no one would suppose that a perpetuity could be created in this way, though the decree should profess to be founded on the construction of some parts of the revised statutes. Property is alienable; and no court, as such,can impress a condition upon it, which shall be repugnant to its very nature. The alienee would not be bound, in the case put, nor would he, for the same reason, in the case before us. On his coming in as a party, the question would be entirely open as to the right, though the trustees would not be subjected to costs for refusing to pay him. 1 presume, however, the point was not *made and argued even in the court below ; and for that [ *668 ] reason, if no other, we ought not finally to pass upon it now.
I am of opinion that the decree is not in any part so impeached that this court ought to interfere, either by reversing or modifying it. Therefore it should be affirmed.
On the question being put, Shall this decree he reversed? all the members of the court (eighteen being present,) with one exception, voted in the negative, whereupon the decree was affirmed.