Mason v. Jones

2 Barb. 229

• Court: New York Supreme Court
• Decided: January 3, 1848
• Status: Published

Opinion

By the Court, McCoun, J.

The leading question to be considered in this case, arises upon the sixth devising clause of the will, it is this: Whether the trustees take one half of the estate as one entire gift for the purpose of a common fund to be made up of income,-out of which to pay the four several annuities ; or whether it is to be understood as a devise of half the estate in shares; thereby creating several trust funds for the payment of the respective annuities, each annuity being payable out of a distinct fourth part of the income.

If the former was intended by the testator, and such be the design of the will, then the devise is clearly void ; because the trust renders the property inalienable for a longer period than is allowed by law; but if the latter is the true meaning of the will, (and the meaning is to be gathered from the whole instrument;) the objéction on the score of an undue suspension of absolute ownership or of the power of alienation, entirely vanishes;

It was certainly as competent for the testator to devise this half of his property to trustees in shares, as it was for him to devise the other half in distinct undivided parts free from any trust; and had the draftsman, in framing the devising clause in question, added the words “ in four equal shares,” or, in the direction for the payment of annuities, had he said “ out of the income of the respective shares,” or employed words of similar import in that immediate connection, I apprehend there would have been no question of this sort. It would have been too clear for a doubt as to its being a devise in shares. But though such words are wanting here, yet are they not supplied in the subsequent parts of the instrument ? It seems to me they are, and that the subsequent provisions show clearly enough an intention to devise this half of the property in four distinct and equal shares, as well for the sake of trusts to be executed, as for the sake of limitations over after the trusts shall have ceased.

An evidence of such intention is to be found in the direction that upon Helen Alston surviving her husband, her annuity is to cease and she is to take “ the one equal undivided fourth part of the property,” absolutely. The same share, under the designation of “ the said last mentioned one equal undivided fourth part,” &c. is given over to her issue in the event of her death leaving her husband surviving.

And again : In the accumulations of surplus income, “ three equal fourth parts thereof” are mentioned to which this direction of the will applies, and these are the shares of Helen, James, and Henry, whose issue respectively are intended to be benefit-ted by the accumulations. And in the next paragraph the will is still more explicit on this point, using this language : “ And with regard to the said trust shares of the said Helen, James, and Henry, so long as they may severally be without issue living, the surplus of the said income thereof,” that is, of those three shares, are to be paid over to persons in esse, and not to await the birth of issue of the three first takers.

Then again; another equal fourth part of this half of the property is disposed of on the death of John, together “ with the surplus of income thereof,” after satisfying the annuity to him. This clause strongly indicates that the testator himself understood the will as setting apart a one-fourth of the half devised to the trustees, for his son John, out of the income of which fourth, and not out of the income of the entire half as a common fund, John’s annuity is payable; for it is the surplus income of that one-fourth, as a distinct share, and as a fund by itself, that is given over, with the principal, at his death. So, likewise, upon the death of James and Henry respectively, it is equal fourth parts that are given over to their respective issue, or in default of issue surviving, then to others.

These directions of the will, which have reference to the same undivided half of the property devised in trust, show very clearly that the testator intended the trustees to take and hold the property thus devised, in four equal undivided shares, and each share under a separate trust. Even if the will is capable of receiving a different interpretation for the want of words of severance in the immediate devising clause, yet when the whole is looked at, it is not perceived that any violence is done to its language, or to the general import of the instrument, by adopting this as the preferable meaning. The court is bound by that familiar principle which prevails both at law and in equity, that where a deed or a will admits of a twofold construction, one of which would render it void, and the other would uphold.. it, to give it that construction which will leave it effectual in law.

An argument has been urged against considering the trust as a trust of shares, because of the unequal amounts of the annuities, and of the discretionary power of the trustees to increase one or more of them, so as not only to produce a still greater inequality, but to enhance the amount of one or two, beyond equal fourths of the income, so that they could not be paid except by considering the income as a fund in gross, and not held in shares.

If, from these circumstances, it followed that the exercise of the power to increase annuities would necessarily prevent the payment of all, except out of a common fund, however small or partial the increase might he, then it would be an evidence of the testator’s intention to place this half of his property under one general trust. But the facts in relation to the annual income, and the testator’s knowledge of the amount, do not impose the necessity of inferring such an intention. The annual rents of the real estate, at the testator’s death, were about sixteen thousand dollars. His personal property is inventoried at five hundred and sixty-six thousand dollars. This, at a moderate rate of interest, added to the rents, will form a clear net annual revenue of at least forty thousand dollars. Assuming this to.be so, (and there would seem to be nothing unreasonable in the assumption,) each annuity might be increased to five thousand dollars, and still he paid out of separate shares of the income.

The testator well knew the amount of his income, and what the estate, in all probability, would continue to yield; and knowing this, he might well authorize an increase of the annuities ; and it is difficult to believe that in conferring the power, although it is declared to be “ a full discretionary power,” he had the remotest idea or intention of the trustees increasing any one of the annuities so that it should exceed a fourth part of the net income of the property devised in trust. There is room enough for the exercise of the power without its going beyond that limit; and if the trustees should ever attempt to exceed it, there would be, within the equitable jurisdiction of this court, a power, as I have no doubt there would be a duty, to restrain them.

The testator, indeed, contemplated that there would be a surplus of income after paying the annuities, and a surplus not depending on the trustees’ omission to increase the annuities, but a surplus even if increased; for. his directions to accumulate the surplus in respect to three shares, or three fourth parts of the income, are general. In giving these directions he speaks of the surplus “ of three equal fourth parts” of the net income, and calls these three fourths, the “ trust shares” of Helen, James, and Henry. Thus showing that he had distinct shares in his mind, and that the surplus of such shares of income, was still the subject of his concern, though he had given to the trustees a power by which the surplus might be diminished, and perhaps entirely absorbed in the payment of annuities; but not necessarily showing that one annuity, for example, might be so increased as to require more than one such equal share of the income to satisfy it, and thus to do away with all idea of separate funds.

Taking, then, the devise to the trustees, of one half of the property, to be a devise in shares upon separate trusts, the next question is upon the duration of the trusts, and the nature of the limitations over, whether they unduly suspend the power of alienation as to either or any of the shares.

I shall consider them in their order. The first is a trust for Helen Alston, viz. to pay her a clear annuity of $3000, in two equal instalments, at the end of every six months, from the death of the testator so long as she remains covert, and no longer ; for her annuity is to cease when, and if, she survives her husband, Joseph Alston. And in that event, the one equal undivided fourth of the property devised to the trustees vests in her absolutely. And in the event of her death in the lifetime of her husband, then the same fourth part goes over to her child, or children, or other issue, absolutely, in fee, but subí ject nevertheless to the annuity to her husband, the will having directed the annuity of $3000 to be paid to him during the residue of his natural life, in the event of his surviving her. The meaning of the will in respect to this share is very plain. The trust is to cease upon the happening of either of the two events, discoverture by the death of her husband, or her own death, her husband surviving. In the latter case, the annuity will remain to be paid, not however by the trustees, but by the remainder-men, who take subject to the annuity, as a charge or incumbrance upon the property in their hands. Hence it is a trust which cannot endure beyond the life of one person in being, Mrs. Alston, and may terminate sooner.

But if the annuity to the surviving husband is to be paid by the trustees, under a continuing trust for that purpose, it is even then a trust but for two designated lives in being, and is therefore unobjectionable. The second is a trust for the testa-, tor’s son, John, to pay him an annuity of $2000 in like half yearly payments. This annuity is not to be continued to or for the benefit of any other person after John’s death; and upon his death the whole of the trust share out of which the annuity is payable, is given over, “ together with the surplus income thereof,” to other persons, discharged of the trust. There is almost an unintelligibleness in the words as they stand in this clause of the will, by which the last mentioned share, with its surplus of income, is limited over on the death of John; but by transposing the words, “ with the surplus of income thereof,” and placing them next after “ together,” and before the words “ in the meantime,” all obscurity about that part of the sentence is removed. Words may be transposed, and changed, when necessary, in order to get at the correct meaning. (2 Roper on Leg. 321.) There may be some questions to be considered hereafter as “ to the several persons, and for the several estates, and upon the several contingencies,” to which this limitation, or gift over refers.

Next is the trust for James, and the like for Henry, viz. to pay each of them an annuity of $2500 in half yearly instalments, during their respective lifetimes. As in the case of the daughter Helen’s annuity, so here, on the death of James or Henry, leaving a widow, the annuity of each is to be continued to his widow during her life. But is the trust to continue? We have seen in Helen’s case, that the trust will cease upon her husband’s death, she surviving, or upon the happening of her own death, he surviving hen In regard to John’s share, the trust will cease upon his death; so, as to the share of James, it is equally clear the trust is to continue no longer than during his life ; and Henry’s stands Upon precisely the same footing. The property appropriated in shares for the purpose of paying their respective annuities, is tied up by a trust only for one life, that of a son, in respect to each share. It is true, that if the trusts of James and Henry’s shares were to continue after their deaths, for the sake of their widows’ annuities, it would be a well founded objection that they were trusts for two lives each, one of which might not be a life in being when this will took effect; for, though James was then' married, yet the will does not give the annuity to his present wife nominatim if she survives; and she may not be the widow to claim and receive the annuity, but some future wife, perhaps not yet born. And as Henry was younger, and unmarried, there might be a still greater uncertainty as to the person, and whether in being, who would stand in that relation to him. But as the trusts of James and Henry’s shares, like the others, will cease at the expiration of one life, and as the property is then to pass under the limitation over, provided they are effectual for that purpose, subject only to widows’ annuities, as a charge upon the remainder, there is no difficulty, and can be none hereafter, about the absolute ownership or power of alienation being suspended ; because mere charges on an estate have not that effect. *

Another point has been made as to the purposes of the trust, which is equally applicable, whether the will be considered as creating several trusts or only one. The objection is, that the statute does not allow trusts to be created for such purposes as are here intended* A distinction exists, in this respect, between a trust of personal property and its income, and a trust of the rents and profits of real estate; the latter only being the subject of express regulation by the statute of uses and trusts. (See in Gott v. Cook, 7 Paige, 534, and 24 Wend. 661.) But as both species of property are here thrown together, under the same trusts, I shall test the purposes and objects of the trusts by the statute. In the first place, it is well settled that the payment of annuities is a legitimate purpose of a trust. (Depeyster v. Clendining, 8 Paige, 275, and 26 Wend. 21.) So it is equally well settled, that the directions “ to pay ” to the annuitants, in-’ stead of using the words “to apply to the use of,” is just as good. This precise point arose and was considered at length by the chancellor, in Gott v. Cook, (7 Paige, 521.) There he held that a trust expressed as this is, was within the letter as well as within the spirit of the statute. His decision having been affirmed on appeal, (24 Wend. 641,) puts this question at rest. The opinion expressed by the chancellor as to the duty of trustees in executing a trust “ to pay,” meets another branch of the objection; for although the terms of the trust may seem to contain an unqualified direction “to pay over,” money to the beneficiary, yet the trustee is to exercise a discretion on that subject, and he is not to place money, or whatever else he may furnish, directly in the hands of a beneficiary, who from his mental or moral condition, is incapable of using it beneficially to himself. Such a proceeding will be accounted a breach of duty on the part of the trustee, rather than a compliance with the terms of the trust* (7 Paige, 538.)

Next, as to the directions of this will in respect to the accumulations of surplus. It is contended that these are void. One of the express trusts authorized by the statute of uses and trusts, is to recover the rents and profits of lands, and to accumulate the same for the purposes and within the limits prescribed in the previous article of the statute relating to estates; and there we have the cases specified in which, and the purposes for which accumulations of rents and profits of real estate may be made. (1 R. S. 726, §§ 37, 38.) Accumulations of the income of personal property are placed on the same footing, and are governed by the same statutory rules. (1 R.S. 773, § 3.) These rules are, 1. That an accumulation, in order to be valid, must be for the benefit of minors, and it must terminate at the expiration of minority. 2. If the accumulation is directed to commence on the creation of the estate, or on the taking effect of the instrument by which it is directed, it must be for the benefit of one or more minors then in being. 3. If the accumulation is directed to commence at a future period, that is to say, at a time subsequent to the creation of the estate, or the taking effect of the instrument by which it is directed, the commencement must be within the time allowed for the vesting of future estates in lands, or, which is the same thing, for the vesting of the absolute ownership of personal propperty; that is, within the running of two lives in being. And 4. Where it is to commence at such future period, it must commence at some time during the minority of the persons intended to be benefitted.

Now in respect to the surplus income of the three shares set apart for Helen, James and Henry, after paying their several annuities, the will directs that such surplus accruing after one month from the testator’s death, is to accumulate equally for the benefit of the children or other issue of Helen, James and Henry, respectively, during their respective minorities, and to be paid to them respectively as they shall severally attain the age of twenty-one years; such children or other issue taking their respective shares thereof by representation and not per capita. Here, in some respects, is such a direction for accumulating rents and income as the law allows. Minors only are to be benefitted, and the accumulations are to terminate when, and as, such minors severally attain full age. But when are the accumulations to commence? One month from the death of the testator is fixed by the will as the period from which the surplus to be accumulated is to accrue. This is a good appointment of a subsequent or future time for the accumulation to commence for the benefit of Helen’s child, born before the death of the testator, and then, and still, a minor, and would have been an equally good and binding appointment as to any other child or children of Helen, James and Henry, who had happened to be born at any time within a month after the death of the testator. It does not appear, however, that any were born during that short interval, and the child of Helen is therefore the only one whose benefit of accumulation is to date from the expiration of the month, instead of dating from the time of the testator’s death, as it might have done. If Helen should have further issue, they will be entitled to participate with the child she now has, in the benefit of the accumulation going on from the expiration of the month. But the period of one month from which the surplus income is to accrue as here mentioned, is of no consequence as to children of James and Henry not born at that time; for by the terms of the will no accumulation could or can commence for the benefit of the children of either, until a child or children is or shall be born to them. The language of the will is that “ so long as they may severally be without issue living, the surplus of the said income, &c.” instead of accumulating in the hands of the trustees, is to be paid over from time to time to the other persons therein named-. When issue was born to Henry, therefore, the accumulation, according to the will, commenced for the benefit of his children. So, whenever a child shall be born to James, he as yet having no issue, as appears from the pleadings in the cause, (for none is spoken of, or made a party to the suit, though his wife is,) the accumulation of the surplus income of his share will commence, according to the directions of the will, for the benefit of his issue. It is made a question, however, whether the appointment by this will of the birth of issue to James and Henry, respectively, as the period or time for the commencement of the accumulations for the benefit of such issue, (neither of them having issue at the time of the testator’s death, nor within the one month thereafter,) is such an appointment for the commencement as the statute allows to be made. One objection would seem to be, the want of two designated lives in being, within which the accumulations must commence by the birth of subsequent issue; but this objection is removed, if from the will it is made to appear that there is one designated life within, or at the. expiration of which, the accumulations must commence by the birth of issue, or not. commence at all. Is that the case here 1 James and Henry, sons of the testator, are named as the persons whose respective issue, or children, are to be benefitted by the intended accumulations. Issue not already born to them, must be born, if ever, within their lifetimes, or within the period of gestation after-wards. Suppose, then, the issue to be born happen to be posthumous, which is possible, still, such issue would answer the description in the will of issue or children of these sons, and of such issue, too, who are to be benefitted by the accumulations ; but would they be issue in the lifetime of the father, within the meaning of the statute which fixes a time beyond which accumulations cannot commence 1 The statute says they are not to commence beyond the period allowed for the vesting of future estates in land, or for the suspension of the absolute ownership of personal property; that is, two lives in being. But future estates may be limited to vest in possession sooner, or at any other time, which by no possibility can exceed two specified lives. Here it may be said that the period of gestation, or the time for a posthumous child to be born, added to its father’s life, may, by possibility, be a longer term than any two specified lives. I think, however, our statutes haye cured this difficulty, and we are at liberty to hold that the time required for a posthumous child to be born, is not to be taken into account. Posthumous children are placed on the same footing, with respect to property devised, and to property coming by descent, as other children of the same parent. [2 R, S, 65, § 49. 1 Id. 754, § 18.) This is upon the principle that a child era ventre sa mere, shall be considered in esse, for most purposes of property. (See Clarke v. Blake, 1 Bro. C. C. 320.) In the same case at law, (2 H. Black. R. 399,) Eyre, C. J., held that an infant era ventre sa mere, who, by the order and course of nature is living, comes clearly within the description, of a child living at the time of its father’s decease. At common law, a remainder must vest eo instanti, the particular estate is deter mined, or it is void; but under the remedial statute of 10 and 11 William III, ch. 16, from which the provisions of our statutes above referred to, are to some extent borrowed, posthumous children take in remainder, notwithstanding the interval, and notwithstanding there happen to be no estate limited to trustees after the decease of the father, to preserve the contingent remainder to such after-born children until they are bom, or come in esse to receive the estate. (2 Prest. Touch. 235, n. 20.) And in Basset v. Basset, (3 Atk. 203,) Lord Hardwicke determined under that statute, that a posthumous child, born after the rent day following his father’s death, was entitled to the previous profits of the land, from the time of such death, as well as to the land itself. Our statute relating to the creation and division of estates, contains the same principle. “ Where a future estate shall be limited to heirs, or issue, or children, posthumous children shall be entitled to take in the same manner as if living at the death of their parent.” (1 R. S. 725, § 30.) Here, then, is a complete annihilation, in law, of the time that may elapse between the death of a father and the birth of a previously begotten child. The instant such child is born, it is made to step back to the end of the father’s life, there to take its stand and become clothed with all the rights of property previously conferred. The time allowed for an accumulation to commence in future, is the same as is allowed for a future estate in lands to vest in possession : and when the beneficiary, under a trust for such an accumulation, happens to be en ventre sa mere, at the death of the father, the same reason exists why the time that may elapse for his birth should be disregarded. The possibility of such an occurrence, under the trusts for accumulation for the benefit of the issue or children of James and Henry, as declared in this will, cannot therefore, in my opinion, be allowed as an objection to the validity of those trusts. The accumulations under them must commence, if ever, within, or at the expiration of one life, and this will necessarily be during the minority of the persons to be benefitted; and according to the will the accumulation is to terminate at the expiration of minority. Hence the requirements of the statute, allowing accumulations, are complied with.

It has been suggested,' in argument, whether during the one month from the death of the testator, when no accumulation could commence, the power of alienation was not suspended, and if so, being for a term, and not for lives, it was an undue suspension. The trusts, however, for the payment of the annuities, were not suspended. They commenced at the death of the testator. The title vested immediately in the trustees, for the purposes of those trusts, and the annuities would absorb the rents and income of that month, so that no surplus, even for that period, would remain undisposed of by the will.

I now proceed to examine, a little more particularly, the limitations over of the trust property, and its increase, in order to ascertain whether there is any thing in them to impair the otherwise legal effect of the will. If they confer absolute rights of property in possession, however entangled the limitations may appear, or difficult it may be at this time to point out and identify the persons who will be entitled under them, yet the devise over may be good. Even should there be a failure of persons, or events, provided for, it may not invalidate the will. The first thing I shall notice is the gift of the surplus income of the “ trust shares ” of Helen, James and Henry, “so long as they may severally be without issue living,” or in other words, until the time arrives for the accumulations to commence by the birth of such issue, the surplus income of these shares is directed to be paid from time to time to individuals therein named, and to classes of persons described as children or issue of others. The trustees are the persons who are to make the distribution, for it is some portions of the money they are to receive under the trusts which are to be divided and paid over. We have seen that- the trusts to receive and pay over are valid. The recipients of these surplus moneys are cestuis que trust for the time being. They take their respective shares, when paid, as absolutely as the annuitants take their annuities. No condition, limitation or trust is attached to the receipt of the money by either of the donees, to qualify their absolute ownership. There may be some uncertainty as to the persons who will be entitled to receive some of the shares at some of the times, owing to the happening of events which may shift the rights from one to another. Thus, for instance, it is a matter of uncertainty whether George Jones will take the share given to him, or whether his children by his late wife will take it, substitutionally, in the event of his death. So with Mrs. Alston: she is to be the recipient provided she becomes discovert by the death of her husband; but while she and her husband both live, her issue are to take. The event of her death, leaving her husband surviving, seems not provided for; but the effect of this omission is not such as to impair the validity of the limitation, as far as it goes. What will become of that share, in the event last mentioned, is a question which it is not now necessary to consider.

In this distribution of surplus income the will also gives shares “ to the issue of either of the sons, James and Henry, who may have issue.” This is easily understood. For example, if James should have issue and Henry none, it would be the surplus income of Henry’s share that would be distributable so long as he remained childless, and James’ child or children would participate in such distribution. And so vice versa, Henry leaving children and James none, it is the surplus income of James’ share that is now distributable, and Henry’s children come in for one equal part between them, while the two Mrs, Jones are each entitled to a part, Mrs. Hammersley to a part, and Mrs. Alston’s child, as she is situated, to another equal part.

Next, as to the one-fourth share of the property devised in trust for the testator’s son John. Upon John’s decease this share, together with the surplus of income thereof after satisfying the annuity to him, is given “ to the several persons, and for the several estates, and upon the several contingencies, herein lastly above specified.” This is a limitation over of a remainder upon the determination of John’s equitable life estate, or in other words, of the trustees’ legal estate held for John’s benefit during his life. First, then, who are the “ several persons” to whom this remainder and its surplus income are devised ? They are the same persons and classes of persons just spoken of, to whom the surplus income of any of the other three fourths is given-by the next preceding clause of the will. 2d. For what <£several estates” do they take? The answer is, absolute estates or interests, as tenants in common—children or issue taking by representation and not per capita, as declared in the will. 3d. Upon what “ several contingencies ?” One contingency, as to one share, is that George Jones is to take it if he is living at the time for it to vest in possession, (i. e. at John’s death,) and if not then living, his children by his late wife are to take. As to another share, the contingency is of Mrs. Alston becoming discovert by the death of her husband and being still living, when she will be entitled; and if she remains feme covert and have issue living, such issue to take. And in respect of James and Henry, the contingencies are of their having issue to take other shares. Now with regard to the shares in John’s one-fourth, which are given to the two Mrs. Jones and Mrs Hammersley, there is no contingency in the limitations over. They each take a vested remainder, and their title and ownership is at once absolute. The limitations of the other shares to the other persons create contingent remainders, owing not to any uncertainty in the event on which they are limited to take effect, viz. the death of John, but to the uncertainty of the persons who are to take. Whilst they remain uncertain, the remainders to them are contingent. (1 R. S. 723, § 13.) This uncertainty, however, can last no longer than during John’s lifetime. The moment he dies, it will be ascertained from events that have transpired, who and which are the persons in whom the title and estate in remainder will vest in possession. It will then be known whether it will be in George Jones or his children—whether in Mrs. Alston or her child or other additional issue—and whether James and Henry will have issue living in whom likewise shares will vest. Whichsoever of them is then in a situation to take, will take absolute ownerships; and if there should be a failure of devisees there will be heirs at law in whom the fee will vest. In no event will the power of alienation be any longer suspended. Next in order are the limitations over of the two equal fourth parts upon the deaths of James and Henry respectively. Their respective issue are to take these shares in fee, taking by representation and not per capita, subject to the charge of a widow’s annuity upon each share, as before stated. But should James and Henry, “or either of them, die without leaving issue them or him surviving,” then these two equal fourth parts, or one equal fourth part, as the case may be, are given and devised subject to the last mentioned annuities, to the same persons and in the same manner as the remainder of John’s share is previously given, with the difference of a single word as respects the issue of the two sons. In the previous clause the words are, “ and to the issue of either of my sons James and Henry who may have issue.” In this clause the words are, “ and the issue of either of my last mentioned two sons who may have left issue.” The word “ left," as used here, would seem to imply the death of" a son and the survivorship of'his issue, before such issue are permitted to take. A manifest difference is thus made in the vesting of the remainder in the issue of a son, under this limitation, and under the previous limitation of another share of the estate to take effect upon the death of John. No good reason can be assigned why any such difference should be made in the two cases; nor why, in this instance and not in the other, the testator should have been minded to postpone the vesting. It would indeed seem contrary to the general plan of his will, in relation to one half of the estate, for him to do so. I cannot but think, therefore, that this word “ left” has unfortunately, from oversight, obtained a place in this will, without its being intended to have the effect it would appear to have. What is that effect ? The most that can be said of it is, that the issue of a son,' to take under this limitation, must, be the issue who has or have survived his or their father; and then it follows, that there may be a period of time to elapse after the death of one of the sons, leaving no issue, before the issue of the other son can take. For example; suppose James dies without issue, and Henry is still living having issue; Henry’s issue, though appointed to take, in common with other persons, the remainder in one fourth upon the death of James, yet cannot take in the lifetime of Henry their father; for till his death, they are not issue which he has left. Here then is an interval of time, a possible event, which postpones and suspends the vesting of a share in this remainder until the happening of another event besides that upon which it is in the first instance limited to take effect, viz. the death of James without issue. All the shares in the remainder limited to the other persons vest in possession at that time; yet the share to the issue of the other son, Henry, is to remain contingent and uncertain as to the persons to take, until his death shall determine who are the issue he leaves. In the meantime, the benefit of' the share thus kept in suspense is given to nobody—it is under no trust. Cases have occurred in which courts of justice have felt themselves at liberty, in considering and giving effect to wills, to reject words which, if allowed to stand, produce repugnant and inconsistent results. (2 Jarman’s Powell on Dev. 9, and cases there cited.) I am strongly inclined to think the present is such a case, and that we are warranted in discarding the word in question; and then this part of the will will be in perfect harmony with the previous limitations. But whether it be rejected or not, it has not the effect of suspending the absolute ownership and power of alienation of any part of the property beyond the period of two lives in being at the death of the testator. The two lives are those of his sons James and Henry. Under the limitation to the issue of either of these sons who may have left issue, the remainder will necessarily vest, if it vests at all, in such issue, at the time of the death of the longest liver of the two. Upon the whole, therefore, if the views taken of the previous devises and provisions of this will are correct, there is no cause in law for interfering with any of the trusts or limitations it contains. And this being the opinion of the court, the decree appealed from is affirmed, with costs.