Phelps v. Phelps

28 Barb. 121, 1858 N.Y. App. Div. LEXIS 128

Opinion

Sutherland, J.

This case calls for the construction of the will of Anson Gr. Phelps, sen., deceased, late merchant of the city of Hew York; who died on the 30th November, 1853, leaving a widow and five children, Anson Gr. Phelps, jun. Mrs. Dodge, Mrs. Pond, Mrs. Stokes, Mrs. Atterbury, and twenty-two grandchildren, him surviving. Three of these grandchildren were children of a deceased daughter, Mrs. James;.the other grandchildren were children of the four daughters before named. After the testator’s death, and before the commencement of this action, two more grandchildren were born. All the grandchildren, excepting three, were minors when thó action was commenced. The testator died seised and possessed of real and personal estate of the value of about two millions, exclusive of the homestead devised to his widow; his real estate, exclusive of the homestead, having been valued at $1,069,650, subject to mortgages to about the amount of $254,000; and his personal property inventoried at $999,-867.19. The greater part of the real estate was in the city of New York; the remainder in Connecticut, Pennsylvania, Indiana and Missouri. In addition to bonds and mortgages, to the amount of about $254,000, all executed by himself, the testator was individually indebted at the time of his death, exclusive of the notes to his children, to about the amount of $47,000. The net annual rent of his real estate, in the city of New York, was about $24,500, and in Connecticut $9,500; total $34,000. The testator by his will, which is dated the 24th March, 1852, appointed his wife executrix, and his son Anson G-. and his son-in-law William B. Dodge executors. The executrix has alone qualified; the executors have neither qualified nor renounced. The executrix has sold to the survivors of the firm 'of Phelps, Dodge & Co., of which firm the testator was a member at the time of his death, all the interest of the testator in the assets of the firm for $689,569.83. The partnership property consisted both of real and personal property ; the legal title to which property had been vested in all of the copartners in fee as joint tenants, and not as tenants in common, for the'sole purpose of giving to the surviving members of the firm, upon the death of any of them, the legal title and power of selling for the benefit of all the copartners and their representatives. The executrix has, under the will, sold other portions of the real estate, and was continuing to do so until restrained by injunction. The widow has elected to take the provisions made for her in the will in lieu of dower. To provide for her annuity of $5,000, she has, as executrix, set apart bonds and mortgages and other securities to the amount of $104,100, and yielding an annual interest of $7,325.50. These bonds and mortgages, &c., are in her owh hands. Some portion of the $254,000 of mortgages was on real estate not in this-state.

In construing this will, the fifst question is whether the real estate of the testator is to be considered as converted into money under the power of sale contained in the will. In the first section of the will, immediately after appointing his executrix and executors, the testator says: “And I do hereby fully authorize and empower them, (the executrix and executors,) or such one or more of them as may prove this my will, and the survivors and survivor of them, to sell and convert into money all my estate, real and personal, whatsoever and wheresoever, (except my present homestead and lands hereinafter devised to my wife,) and either at public or private sale, and upon such terms as they may think most conducive to the interest of my estate; and to make, execute and deliver good and sufficient deeds and conveyances therefor to the purchasers thereof.” The power of sale and of conveyance, it is seen, is as full as it well could be drawn. This power is given, before any devise or bequest is made, and appears to have been the first thing thought of after the appointment of his executrix and executors.

I think that in construing and giving effect to the will this power must be considered as having been exercised, and the real estate all converted into money. From the whole will it appears to have been the intention of the testator to have this done. The most important purposes and provisions of the will appear to me to call for this conversion. Indeed, I do not see how the evident intention of the testator as to the final disposition of his residuary estate, the payment of the contingent legacies, and even the payment of some of the vested legacies, can be carried out without it. There is no express direction in the will to sell; but as the execution of the power to sell is not made expressly to depend on the will of the executors, it is therefore imperative. (1 R. S. 734, § 96.) After the devise of the homestead to his wife, in the second article of the will, the word devise is not found until we come to the residuary clause. The testator died seised of real estate, exclusive of the homestead, worth a million; and yet there is not a specific devise in the whole will of any part of it, and not a word referring to it as distinguished from the personal, in the whole will, except in the first article, in giving the executors the power of sale, and in the residuary clause, where the word devise is used. In the third article, after the devise and bequest of the homestead, and household furniture, plate, books, '&c., to his wife, the testator by the fourth article gives to his wife an annuity of $5000, and directs his executors “to invest, as a separate fund, in such securites as they may judge most expedient, a sum sufficient to yield that amount annually," &c. There is no other separate investment of any other part or portion of the estate directed, but the whole residue and bulk of the estate, real and personal, with the rents, issues and income thereof, in the absence of any express devise to the executors, or to any one else, is left to go, until, and as the legacies are paid, or provision is made for' their payment as the will directs, and until the residuary clause takes effect by the vesting of the residuary estate absolutely in possession in the residuary'devisees or legatees, under it, where the law, or reasonable implications of the intention and purposes of the testator, derived from the several express provisions of the will, and its general scope and scheme, will carry it. How, by law the personal property goes to the executors without any express direction; but where did his real estate with its rents, issues and profits go on the testator’s death ? Who was to have the possession and use of the same until the legacies were paid or provided for by the executors, and until the residuary estate should vest absolutely in possession under the will ? From the express provisions, what are we to infer was the testator’s intention in relation thereto ? After separating and setting aside the fund for the use of his wife, for life, and after giving away, absolutely or contingently, out of the remainder and bulk of his estate, $1,200,000 in legacies, the residuary clause is, “after paying and satisfying, ox providing for the payment, of all the legacies and bequests hereinabove mentioned, in full, then as to all the rest, residue and remainder of my estate whatsoever and wheresoever the same may be, .1 give, devise atid bequeath the same to my children and grand children, as follows: I order and direct the same to be divided into as many shares as I shall have children and grandchildren living at the end often years after my decease, provided that my son Anson Gr. Phelps, and my son-in-law Wm. E. Dodge, shall either of them be living at that time. But if before the expiration of ten years from my death, my son Anson Gr. Phelps and my son-in-law Wm. E. Dodge, shall both happen to die, then at the decease of the survivor of them I order and direct my residuary estate to be divided into as many shares as I shall have children and grandchildren living at the time of the decease of such súrvivor, it being my intention that each child and grandchild receive one equal share of my residuary estate upon such division as aforesaid, as soon thereafter as can conveniently be done.”

Bow it is very clear, that the testator intended to dispose of all his estate by his will; he does expressly devise and bequeath it all—the residue, after the payment or provision for the payment of all the legacies, and subject to such payment or provision. The postponement of the residuary devise and bequest until after the payment or provision for the payment of all the legacies; the contingency as to the time of the division of the residue among the children and grandchildren then living; the division itself by the executors; the careful postponement of the payment of the large vested, absolute legacies to the religious and charitable corporations and societies ; their payment in annual installments; the postponement of the payment of the vested legacies to the grandchildren, of’ $15,000 each, in the seventh and eighth articles of the will, until they severally arrive at the age of twenty-one; the fact that the vesting of the contingent executory legacies of $100,000 to each of his children in the ninth article, is made to depend as to the time of their vesting absolutely, upon the same contingency, as the time of the division of the residuary estate among the children and grandchildren; the fact that this contingency might occur within a month or ten days after the testator’s death, and if so, that then the $1,200,000, given in legacies, must be paid, or the payment of them provided for by the executors out of the personal property, .diminished hy the fund set apart for the widow, and the simple contract debts of the testator, and out of the real estate, diminished hy the $250,000 of mortgages; and that then, also, the residue of the whole estate must be divided by the executors among the children .and grandchildren; the fact that the residuary clause does not vest the residuary estate in the children and grandchildren living at the testator’s death, on his death, (as I shall presently show,) but that the devise and bequest in that clause is executory, and by it the residuary estate cannot vest, until the end of ten years from the testator’s death, unless the life nominees, Anson Gr. Phelps, jun. and William E. Dodge, loth die sooner; all these facts’ and circumstances show-—the whole scheme of the will shows—that the testator did not intend that his real estate should go to his heirs at law, with its rents and profits, subject to be divested at the end of ten years, or on the death of the life nominees, if they die before, in favor of the residuary devisees; but that he intended his whole estate, real, with its rents and profits, or its proceeds, as well as personal, except the homestead, furniture &c., specifically devised to his wife, to go into the hands of his executors ; and that they, after investing separately out of the same the fund for the widow’s annuity, and paying out of the same the trifling amount of legacies payable immediately, and the testator’s debts, should hold the residue in bulb, in trust, to pay or provide for the payment of the contingent and postponed legacies, and . to make the division of the final residue under the residuary clause. As the expectant estates and interests of the children and grandchildren in the residuary estate, created by the residuary clause, cannot properly be called limitations, on a previous term, nor even limitations without a previous term, of any particular parcel of real estate or fund, but are executory devises and bequests of an undefined residue of the bulk of the éstate to be kept together by the executors in trust until the residuary clause takes effect; and then, (the bulk of- the estate, and not the residue,) to he divided, and one part of it taken by the executors to pay or to provide for the payment of all the legacies, and the other part and residue to be divided by the executors, at the same precise time, among the children and grandchildren under the residuary clause; the whole trust closing when this division of the bulk of the estate, and of the residue among the children and grandchildren takes place; I think the provision of the revised statutes, (1 B. 8. 726, § 40,) that “ When, in consequence of a- valid limitation of an expectant estate, there shall be a suspense of the power of alienation, or of the ownership, during the continuance of which the rents and profits shall be undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the persons presumptively entitled to the next eventual estate,” has no application here; even admitting these expectant estates to be valid, and the suspense of the power of alienation to arise from the creation of these expectant estates, and not from the trust; and that this section applies to contingent future estates as well as to • vested future estates. Now, as it is very clear, from the whole will, that the testator intended his executors to take his whole estate, real, as well as personal, and the rents- and income thereof; and as it is very natural and reasonable, and the testator probably intended, that, taking it, they should first apply the rents and income to the payment of the legacies, and thus increase the dividend of the residuary estate; and as an express devise to the executors, of the real estate, to receive the rents, issues and profits thereof in trust, to apply the same towards the payment of the legacies would have been illegal, and the trust void; (Hawley v. James, 16 Wend. 61, 144, opinion of Bronson, J.;) and as there is a full express power in the will to the executors to sell and convey all his real estate; I think the will of the testator should be carried out and executed in all its parts, if it can be, by considering the power of sale exercised, and the real estate of the testator converted into money. It is the duty of the court to consider the real estate of the testator converted immediately into money, under the full power of sale, if hy so doing the will can be carried into effect. (Van Vechten v. Van Veghten, 8 Paige, 104. Haxtun v. Corse, 2 Barb. Ch. 519.) The conversion of the whole real estate into money involves the payment or disposition of the $250,000 of mortgages.

Looking, then, upon the real estate as converted into money, and the money in the hands of the executor, in trust, for the purposes of the will, the second question is, whether the effecting these purposes may involve the unlawful suspension of the power of the absolute disposition of this money, or of any part of it; or necessarily involves an unlawful accumulation of its interest, or of any part of it ? In the examination of this question the first thing to he looked at is the residuary clause, as furnishing the key to the whole will. Is the devise and bequest by the residuary clause a devise and bequest of the residue to the children and grandchildren living at the death of the testator absolutely; giving them a vested estate ■ and interest in the residue on his death, liable to be divested in favor of the survivors as they severally might die before the time for the actual division of the residue, and to open and let in after-born grandchildren; or is the devise and bequest to such of the testator’s children and grandchildren living at his death or born afterwards as shall be living at the end of ten years, or at the death of the survivor of the two life nominees if they both should die before the expiration of the ten years ? Is the expectant estate or interest of the testator’s children and grandchildren now living, in the residuary estate, vested; or is it contingent, depending for its vesting upon their living until the end of ten years, or until the event happens upon which the residue is to be divided sooner ? And here let me remark, that if this expectant estate were limited as a remainder, the question would be precisely the same whether you call the whole residue money or land. Previous to the revised statutes money as well as any other chattel could be limited over after a term, by way of remainder, (2 Kent, 5th ed. 352 353; Moffat v. Strong, 10 John. 12; Westcott v. Cady, 5 John. Ch. 334,) and by the revised statutes, (1 R. S. 773, § 2,) “ limitations of future or contingent interests in personal property, are made subject to the rules prescribed therein, in relation to future estates in lands.” How I concede, that if the future interests in the residuary estate created by the residuary clause were interests in a particular fund, which had been previously set apart, and the use of it previously given for a particular term, like the widow’s fund for life, then these interests might be considered limited as remainders; and then they might be vested; certainly the liability to be divested by death, in favor of the survivors, and to open and let in after-born grandchildren, would not have prevented their vesting on the death of the testator, in the children and grandchildren then living. The liability to defeasance by condition subsequent cannot prevent an estate from vesting. Such defeasance and consequent revesting in some other, is an alienation. But as the residuary bequest in this case, looking upon the whole estate as converted into money, is a bequest of an indefinite residue of the bulk of the estate, previously and up to the very instant of the bequest taking effect, kept together in trust, without any previously limited term or use of such residue as a distinct separate fwnd, such bequest cannot be considered, and cannot take effect, as a remainder.

The simple question, then, is as to the intention of the testator;—did he intend to give the residuary estate to his children and grandchildren living at the time of his death, absolutely, subject to be divested &c., to be paid at the end of ten years, or sooner, if the life nominees both died before; or did he intend to give it only to such children and grandchildren as should be living when the' residue should be divided ? I think the latter; and that, consequently, the legacies are executory and contingent.

The legacy of $100,000 to each of his children in the ninth article, is clearly contingent. The bequest is, unto each of my children who shall be living at the end of ten years, &c. Then three legacies of $100,000 each are given to three religious societies or corporations, payable severally in ten annual installments of $10,000 each, the first installments payable three, five and seven years after the testator’s death; thus postponing the payment of the last installments thirteen, fifteen and seventeen years. Now, the words of the residuary clause are: “ After paying and satisfying or providing for the payment of all the legacies and bequests hereinabove mentioned, in full, then as to the residue &c., I give, devise and bequeath the same to my children and grandchildren as follows,” &c. The devise and bequest by its very terms is not a present but a future devise and bequest. It is not a devise and bequest of the residue, after paying &c., the before mentioned legacies; but after paying them &c., a devise &c., of the residue. But how is the residue to be divided, and between what children and grandchildren ? The will is, “I order and direct the same to be divided into as many shares as I shall have children and grandchildren living at the end of ten years.” The bequest of the legacies of $100,000 each in the ninth article, is not to each of his children, but to each of his children who shall be living at the end of ten years after his decease, &c. Although there are words of present gift, yet the objects of the gift cannot be ascertained until the end of ten year’s, or the event happen upon which these legacies and the residuary bequests are all to be paid, or their payment provided for, sooner, and at the same time. Although in the residuary clause there are words of present gift in addition to the direction to divide, yet I think the testator intended to give to such children and grandchildren as should be living at the time the division of the residue should take place.

If there was any direction in the will that the income or interest of a portion of the estate should be paid to or applied or accumulated for the benefit of, the children and grandchildren of the testator, living at the time of his death, until the legacies in the ninth article should be paid, and the residuary estate should be divided, that would be a circumstance to show that he intended to give to his children and grandchildren living at his death, absolutely. (2 Williams’ Ex’rs, 1059, 1061, 1066, 7, and cases there cited.) The law favors the vesting of legacies, but the law cannot vest them, against the words and plain intention of the testator.

The vesting of the residuary interests, and of the legacies given by the ninth article, is contingent. This contingency and the provision to be made for the payment of the postponed vested legacies, calls for the trust, and the trust supports the contingent legacies and the contingent future residuary interests.' Now it is plain, that between the two, the trust and this contingency, there is a suspension of the power of the absolute disposition of the bulk of the estate, and that there was intended'to be. The testator intended the income of his estate to be applied to the payment of the installments of his charitable legacies, as they should fall due, and of the vested legacies given to bis grandchildren, as they severally arrived at the age of twenty-one, and thus make his estate work in the hands of the trustees after his death, to increase the residuary dividend. The scheme involves the keeping of the bulk of the estate together, undisposed of, until the event or the time occurs, when the residuary estate is to be divided, the contingent legacies paid, the others provided for, and the trust closed. It is immaterial, whether the restraint upon alienation is caused by the contingent future interest, or the trust, or both. During the trust’, and until these contingent future interests vest, the absolute disposition of a great part of the estate is suspended. The important question is whether this suspension is unlawful. It must cease during the continuance, or at the expiration of two lives, or it is unlawful. It is evident, that the suspension cannot continue longer in this case.

By the residuary clause, the residuary estate is to be divided by the executors among the children and grandchildren, on the death of the survivor of the two life nominees, if they both die before the expiration of ten years, or at the expiration of ten years. Of course, this division must take place, either at the expiration of the two lives, or within the 'continuance of at least one of the lives. If the division is postponed ten years, one of the lives must he living; if the division takes place sooner, it must be at the expiration of the surviving life. I do not see that it makes any difference that Anson G-. Phelps, jun., one of the life nominees, is also one of the expectant residuary legatees. By the statute, the life nominees may or may not be irrespective of the estate. It is true, all his sisters and all the grandchildren might die before the expiration of the ten years, leaving him the expectant of the whole residuary estate; but if he lived to the end of the ten years, it would vest absolutely ih him, and, if he died before, it would vest absolutely under the statute of distributions or of descents; and so, in any event, the residuary estate must vest absolutely and'the trust close, at the expiration of the two lives, or during the continuance of one of them.

It follows, that no direction or provision of the will is void as involving an illegal restraint of the absolute alienation of any part of the estate, unless it is the bequest over of the widow’s fund on her death, by the 21st article. This fund cannot fall into the bulk of the estate and form a portion of the residue, if the widow dies before the division of the residue; for then its absolute alienation might be suspended for three lives. If the widow should die before either of the residuary life nominees, and her fund should fall into the bulk of the estate and be divided before the end of the ten years on the death of the survivor of the life nominees, under the residuary clause, the alienation of the fund would have been suspended for three lives. But I do not see why the limitation over of this fund to the children and grandchildren living at the decease of the widow in case she dies after the division of the residue, is not valid. This limitation is contingent, and may never take effect; but if it does take effect the alienation cannot thereby be suspended longer than one life; it must take effect absolutely on her death. Reject the first limitation over of the fund in case of her death before the division of the residue as unlawful, and you have a second good limitation over, nowise affected by the first.

On the death of the widow, therefore, this fund will go and vest absolutely either in the children and grandchildren under the second limitation in the 21st article; or it will go, as undisposed of by the testator, after the widow’s death, to his next of kin, under the statute for the distribution of intestates’ estates; but as in any event it cannot vest absolutely in possession either in the children and grandchildren under the second limitation of the 21st article, or -in the next of kin as undisposed of, until the widow’s death; she having a good life use of the whole of the fund; it is impossible that the widow has, or can ever have, any other right or interest in this fund, than her life use. It would certainly be very extraordinary, if the widow was entitled to a share of a remainder (for it is the remainder and not the reversion that is undisposed of absolutely) limited on her own life.

Having considered the objections to the will, founded on the supposed unlawful restraint of the right of absolute alienation, let us now consider the other principal objection, that it involves necessarily an unlawful accumulation of the interest, rents and income of the estate.

If the carrying out of the will requires an accumulation of the interest, &c., it must be unlawful, for such accumulation would not be for the benefit of minors exclusively; and the accumulation which might be lawful for the benefit of the minors exclusively, cannot be separated from the accumulation for the benefit of others, which would be unlawful. How looking at the whole estate as converted into money, and in the hands of the executrix at the death of the testator; and after the payment of the debts and the small legacies payable immediately, at the residue as invested for the purposes of the will and its trusts; I know of no rule of law which would prevent the application of the interest and income first to the payment of the legacies as they should become payable; and if so applied, I cannot say from the pleadings and proofs in this case, that there must he any accumulation. $300,000 of the estate has gone, or must go, to pay the debts of the testator; and the proofs do not disclose the ages of the twenty-two grandchildren, living at the testator’s decease, who are each to have legacies to the amount of $15,000 paid to them as they arrive severally at the age of twenty-one. Who can say, how soon the whole trust will terminate, when all the legacies are to be paid or to be provided for, and the residuary estate is to be divided, by the death of the survivor of the two life'nominees ?

Whether the whole estate is to be considered as converted into money or not, I cannot say that there need be any accumulation. There is in the will no direction for an accumulation. If there was, that would be void. There being no.direction for accumulation, the court must see that some provision or direction in the will necessarily involves an unlawful accumulation, before they can declare the will, or any part of it, void for that cause. I think there is no unlawful restraint upon alienation, nor any unlawful accumulation directed or involved, in the provisions of the will, and that the whole will is valid, (except the first of the alternative limitations over of the widow’s fund in the 21st article as aforesaid,) and (with that exception) should be carried into effect, so far as any objections have been made to it by any of the parties on those grounds.

As to the religious and charitable legacies, I think they all come within Owens v. The Missionary Society M. E. Church, (14 New York R. 380,) and are valid; except the conditional one of $50,000 for erecting and founding a college in Liberia, Africa. All the other charitable legacies are given to corporations, capable of taking, or to trustees capable of administering the charities; and the charity, or object of the other charitable legacies is sufficiently plain and distinct. If the legacies given in the 12th, 18th and 19th articles of the will, should be considered as given to the treasurer of the “American Home Missionary Society,” to the “Deacons of the Congregational Church in Simsbury, Connecticut, &c.,” to the acting “Treasurer of the New York Colonization Society,” mentioned in those articles of the will respectively, in trust for the charitable uses and purposes in those articles severally specified, and not to the executors in' trust, although formally so expressed, still I think the bequests valid; the charities being sufficiently definite, and the treasurer, deacons, &c., being persons easily ascertained and capable of taking. But the gift in the 17th article for the erection and founding of a college in Liberia is, I think, too indefinite to be enforced. What kind of a college did the testator mean ? Religious, literary, or a college of physicians ? As he wished his “executors to have in view the establishment of a theological department in said college, to be under the supervision of the Union Theological Seminary in the city of New York,” perhaps he meant a literary or theological college. But how did he intend it to be under the supervision of the “Union Theological Seminary in the city of New York?” Did he mean his money to go to the erection of the building, or to “the establishment of a theological department ?” Who were to be the trustees of the charitable use ? The executors are only to pay over or apply the money in the first instance. It is true they are to apply it in their discretion, but the object of the charity, and the trustee, should be sufficiently certain to enable the court to decree the execution of the trust. How long are the executors to wait for the $100,000 to be raised by the friends of the college in Boston ? All these things are indefinite; and, upon the whole, I think, the object of the charity, the mode of applying it, and the time it should take effect, so uncertain that the trust cannot be enforced by the court. And a charitable trust, the execution of which cannot be legally enforced, must be considered void.

I have noticed, I believe, all the questions raised in this case, involving the construction of the will or the validity of any of its legacies or provisions. The only remaining questions in the dase are as to the validity of the notes, or papers called notes, given by the testator in his lifetime to his son Anson, and to his daughters, Mrs. Dodge, Mrs. Stokes and Mrs. Pond. I do not see how any of them can he legally enforced against the estate. They were all gifts of mere prom.ises of^the testator, without consideration, in his lifetime, and I cannot see how they can he enforced against his estate after his death.

The letter of the testator to .his son, which accompanied the gift of the note for $100,000, shows not only that it was a mere promise without consideration, hut that the testator never intended it to have the force and character of a valid promissory note in his lifetime. It was not delivered to be enforced against the testator, but against his estate. To hold the note valid would he in effect to give the note the force and operation of a codicil to the will, properly executed according to the forms of law; and thus a mere naked promise made hy the testator after his will would he made to operate as a revocation of the disposition hy his will of one hundred thousand dollars of his estate. I do not see how the payment of the interest on the notes to the daughters, for two or three years before his death, can make the notes valid against his estate. The notes, as against the testator, were without consideration and void in the hands of the daughters. The payment of the interest conld not react and make the notes valid from their inception. One can give goods, chattels, money, hut not his own promises so that they can he enforced. If there is a consideration for the promise, it is not a gift.

Let a decree he settled, on four days’ notice, in accordance with the principles and directions stated in this opinion.

Davies, P. J., concurred.

Ingraham, J.

The power to sell all the real estate was not necessarily to he executed, in order to carry into effect the subsequent provisions of the will. A sale of sufficient to pay all the bequests ¡and legacies provided fon, except those in the 20th clause, would have been sufficient to enable the executors to close up the estate after the expiration of the time embraced by the limitations therein. After these payments were made, the real estate would pass, under the devise in the 20th clause of the will, as fully as if the real estate had been converted into money under the power of the 1st article; or if ■that clause is not valid, it would vest in the heirs at law of the testator. And for the purpose of division into equal parts or shares, it would not be necessary that the same should be sold. The estate in the lands would vest in the devisees, or heirs, and it is apparent from the whole clause that the division into shares was merely to show the intent of the testator that his children and grandchildren then living should each receive an equal share of the residuary estate. The mere authority to sell all the real estate was not under any portion of the will obligatory upon the executors to sell, and even if the testator thought the power advisable for the more easy settlement of the estate, still it left to the executors the discretion of deciding whether they would sell, or not, the portion that would remain to be distributed under the residuary clause.

I feel much hesitation in adopting any view of this question which could be construed into an evasion of the provisions of law in regard to trusts. It must be conceded that a devise to the' executors, of the real estate in trust to carry out the subsequent provisions of the will, would in many respects be illegal, as creating trusts not allowed by law. To hold that the executors could do under a power what they could not do under a devise of the real estate, would be a palpable evasion of these provisions; while the construction suggested—that this power to sell was given for the purpose of enabling the executors to pay the moneys to be paid from time to time under the will, and not necessarily requiring a sale of all the testator’s real estate, so as to apply the rule which would convert it into personal property'—would be no violation of law, and at the same time would leave the estate in the portion of the real estate un sold to vest in those to whom it was devised, or who inherited it. If the estate, real and personal, is to be considered as solely personal under the power to sell, then the difficulty arises under the other provisions, that the personal estate is directed to be held for accumulation for the benefit of other than minors ; and - the same difficulty exists as to the personal estate which is bequeathed by the 20th clause.

The will gives specific legacies, to be paid absolutely before the division of the residuary estate, to an amount exceeding one-half the real estate. The payment of those legacies depends upon contingencies which may postpone that payment for years, or which might happen in the case of some of them at any moment. The postponement of the payment of these legacies, and the distribution of the residue in any event, for ten years, clearly renders an accumulation necessary, and that accumulation necessarily operates for the benefit of those taking under the residuary clause. There are already in existence two grandchildren born after the death of the testator, and many of those who were in being at his death were not minors. If the accumulation had been specially directed, so as to make the amount larger for those entitled to the residue, it would have been illegal. Shall the testator be allowed by such an evasion to effect a result which the law forbids his doing directly ?

The direction to pay the legacies does not limit such payments to be made out of the income, If the income is insufficient, they must be paid out of the principal of the estate. The delay in these payments, and the consequent delay of distribution of the residue, enables the executors, by the accumulation of interest, to increase the amount of the principal to be paid under the 20th clause of the will. If such a result could not have been directed by the testator in his will, .surely the court ought not to sustain, as valid, provisions producing the same results, because the testator does not in words direct the accumulation.

The bequest to the widow, under the 4th article, of an an- . nual sum in lieu of dower is undoubtedly valid, and is not objected to by any of the defendants. But the provision in the 21st article, which disposes of the fund reserved for the •payment of such annual sum, appears to me to be illegal, because it suspends such distribution for the period of three lives. The fund must be reserved during the life of the widow, and it cannot be divided under the 20th article before ten years, unless the son and son-in-law of the testator are also dead. It is said, “under other contingencies it might only be suspended for one life, viz., that of the widow, in case she outlived the other two lives.” But still the two other lives on which the distribution was also made contingent, must have first terminated, and that termination was necessary before such distribution could be made, whether the widow outlived the son and son-in-law or not.

There can be no doubt that the absolute ownership of this fund may be suspended during the lives of more than two persons. It must be suspended during the life of Anson G-. Phelps, jun., who has died before the widow, and it cannot be distributed during the life of Mr. Dodge, if he lives for ten years from the death of the testator. So far as the 21st article disposes of this fund in the contingency of the three lives, it is illegal and void.

The same difficulty applies to the provision in case the widow shall live beyond this period (of a division of the residuary fund.) This is equally dependent on three lives. The division of that fund is dejiendent on two lives. This condition applies to the division of the residuary estate which is contingent on two lives and the death of the widow. In any view that may be taken of the provisions of the 21st section, they are illegal and void, as suspending the absolute ownership of the fund for more than two lives.

I do not think the executors can properly anticipate the payment of the legacies. The whole scope and tenor of the wifi and the particular bequests, as well as the direction to provide a fund for their payment, all show that the testator intended that the payments should not all be made at once. To the children and grandchildren they are made payable, either after ten years, or arriving at age; to the societies or other charities, they are payable at future periods, and in di-, vided amounts. It would not be a compliance with the will of the testator to have them paid at once; and when such clearly appears to have been his intention, courts should not defeat it by allowing such payments to be made in gross, and in anticipation.

[New York General, Term, September 20, 1858.

Dames, Sutherland and Ingraham, Justices.]

As to the. other points submitted to us, I concur in the conclusions to which Justice Sutherland has arrived.

The judgment of the special term is erroneous, in my judgment, in holding the 20th article of the will to be valid. It appears to me that the bequest and devise is void, so far as relates so the personal estate, inasmuch as the provisions of the will are such as to direct an accumulation for the benefit of persons not minors.

It is also erroneous in holding that the bequest of $50,000 for a college in Africa, is valid. Such bequest is void, for uncertainty as to the object of the testator.

It is also erroneous in holding that the widow was entitled . to one-third part of the fund reserved for her income.

It is also erroneous in holding that the executors may anticipate the payments of the legacies which the testator has made payable at future periods, and in divided amounts.

It is also erroneous in holding that the surplus income of the personal property should be paid over to the children and grandchildren. It would go to the children.who were living, and the issue of such as are dead, and not to the grandchildren whose parent was living at the time it became payable.