The Subrógate. — By his will, the testator, after certain specific devises and legacies, directed his executors, as soon after his decease as might be judicious, to sell stocks of any amount sufficient to realize the sum of fifty thousand dollars, which he afterwards, by a codicil, reduced to forty thousand dollars, and to invest this sum in mortgages upon real estate in their own names, in trust, to, apply the income of it to the * support and maintenance of his widow during her natural life, and to the maintenance and education of his two children, Louisa and Gilbert, until they became of age. He further declared, that if his widow should marry, that then she should have the income of thirty thousand dollars of the [438] amount so invested for her support and maintenance during her life; and that the income of the residue should, in that event, be devoted to the support and education of the two children, Louisa and Gilbert, until they should arrive at the age of twenty-one years, when it should become part of his residuary estate, to be divided and disposed of in the manner afterwards directed; and at the death of his wife, that the sum so invested and set apart for .her to receive the income thereof, should become part of his residuary estate, and be divided among his heirs then surviving, as provided in respect to the residue of his estate, and that it should be so divided at the time afterwards named by him. Then, by a subsequent clause, he directed that upon his son Gilbert arriving at the age of twenty-one years — or, if he should die before that period, then in a reasonable time afterwards — that his executors should sell the whole of his real and personal estate (except the forty thousand dollars before invested and set apart), unless the same could be divided and partitioned off to the satisfaction of all concerned; and that the proceeds should be divided among his children, if living, or their survivors, if any should have died, share and share alike; — the share which any child would have been entitled to if living, to be divided among the heirs of such child, if he or she should have any, share and share alike. And to effectuate and carry out the above provision, he clothed his executors with full power to sell and dispose of all his real and personal estate at the time appointed, and to give all necessary deeds and instruments for conveying the property so sold, and carrying out the sale thereof.
The trust estate in the forty thousand dollars is void, as it suspends the power of alienation for a longer period than that of two lives in being at the time of the testator’s death. (3 Rev. Stat., 5 ed., 75, § 1.)
A limitation upon minorities is a limitation upon lives. (Hawley v. James, 16 Wend., 61.)
There was here three lives in being at the time of the testator’s death — his widow, and his two infant children, Louisa [439] and Gilbert; and if there is a possibility of the limitation extending over the lives of any two of them, it is void. (Hawley v. James, 16 Wend., 61; Vail v. Vail, 7 Barb., 236; Taylor v. Gould, 10 Id., 391; 4 Cruise, 449; 4 Kent, 283.)
That possibility exists. If Louisa and Gilbert should die during .their minority, the trust would continue until the death of the widow; and the absolute ownership of the property would, in that event, be suspended for a longer period than that of two lives in being at the time of the death of the testator; or, if one of the children named and the widow should die during the minority of the remaining child, the effect would be the same.
As either of these two events is possible, and may happen, the limitation is void.
It is suggested that there is not an absolute limitation during the minority of these two children, as, upon the death of the widow, the sum “ invested and set apart, for her to receive the income thereof,” is to become part of the testator’s residuary estate, and that, consequently, if the widow should die during the minority of either Louisa or Gilbert, the trust would cease, and the limitation be put an end to.
This point has been simply taken without argument, and without the submission of authorities, and in the very short time that remains within which I am to administer the duties of this office, now limited to two days, it is not in my power, in the necessary-attention which I must give to many other matters, to do more than to pass upon it as my present judgment dictates.
I do not think that the terms of the will would justify the construction that the trust was to cease if the widow died during the minority of these children.
It is expressly declared that the income of this fund is to be applied to their maintenance and support until they become twenty-one years of age, and this explicit provision would not, in my judgment, be affected either by the death of the widow before that period, or by the death of Gilbert during his minority.
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The Subrógate. — By his will, the testator, after certain specific devises and legacies, directed his executors, as soon after his decease as might be judicious, to sell stocks of any amount sufficient to realize the sum of fifty thousand dollars, which he afterwards, by a codicil, reduced to forty thousand dollars, and to invest this sum in mortgages upon real estate in their own names, in trust, to, apply the income of it to the * support and maintenance of his widow during her natural life, and to the maintenance and education of his two children, Louisa and Gilbert, until they became of age. He further declared, that if his widow should marry, that then she should have the income of thirty thousand dollars of the [438] amount so invested for her support and maintenance during her life; and that the income of the residue should, in that event, be devoted to the support and education of the two children, Louisa and Gilbert, until they should arrive at the age of twenty-one years, when it should become part of his residuary estate, to be divided and disposed of in the manner afterwards directed; and at the death of his wife, that the sum so invested and set apart for .her to receive the income thereof, should become part of his residuary estate, and be divided among his heirs then surviving, as provided in respect to the residue of his estate, and that it should be so divided at the time afterwards named by him. Then, by a subsequent clause, he directed that upon his son Gilbert arriving at the age of twenty-one years — or, if he should die before that period, then in a reasonable time afterwards — that his executors should sell the whole of his real and personal estate (except the forty thousand dollars before invested and set apart), unless the same could be divided and partitioned off to the satisfaction of all concerned; and that the proceeds should be divided among his children, if living, or their survivors, if any should have died, share and share alike; — the share which any child would have been entitled to if living, to be divided among the heirs of such child, if he or she should have any, share and share alike. And to effectuate and carry out the above provision, he clothed his executors with full power to sell and dispose of all his real and personal estate at the time appointed, and to give all necessary deeds and instruments for conveying the property so sold, and carrying out the sale thereof.
The trust estate in the forty thousand dollars is void, as it suspends the power of alienation for a longer period than that of two lives in being at the time of the testator’s death. (3 Rev. Stat., 5 ed., 75, § 1.)
A limitation upon minorities is a limitation upon lives. (Hawley v. James, 16 Wend., 61.)
There was here three lives in being at the time of the testator’s death — his widow, and his two infant children, Louisa [439] and Gilbert; and if there is a possibility of the limitation extending over the lives of any two of them, it is void. (Hawley v. James, 16 Wend., 61; Vail v. Vail, 7 Barb., 236; Taylor v. Gould, 10 Id., 391; 4 Cruise, 449; 4 Kent, 283.)
That possibility exists. If Louisa and Gilbert should die during .their minority, the trust would continue until the death of the widow; and the absolute ownership of the property would, in that event, be suspended for a longer period than that of two lives in being at the time of the death of the testator; or, if one of the children named and the widow should die during the minority of the remaining child, the effect would be the same.
As either of these two events is possible, and may happen, the limitation is void.
It is suggested that there is not an absolute limitation during the minority of these two children, as, upon the death of the widow, the sum “ invested and set apart, for her to receive the income thereof,” is to become part of the testator’s residuary estate, and that, consequently, if the widow should die during the minority of either Louisa or Gilbert, the trust would cease, and the limitation be put an end to.
This point has been simply taken without argument, and without the submission of authorities, and in the very short time that remains within which I am to administer the duties of this office, now limited to two days, it is not in my power, in the necessary-attention which I must give to many other matters, to do more than to pass upon it as my present judgment dictates.
I do not think that the terms of the will would justify the construction that the trust was to cease if the widow died during the minority of these children.
It is expressly declared that the income of this fund is to be applied to their maintenance and support until they become twenty-one years of age, and this explicit provision would not, in my judgment, be affected either by the death of the widow before that period, or by the death of Gilbert during his minority.
[440] This fund is specially excepted from the general division which is to take place, should Gilbert die during minority ; and should that event take place during the minority of Louisa, the trust would, I think, continue for her maintenance and education until she reached the age of twenty-one. The direction.that “the sum set apart, for the widow to receive the income thereof,” should, upon her death, become part of the residuary estate, and be distributed at the time when the general division of the estate was to be made, is, as I read the will, a direction given in view of the possible contingency of the marriage of the widow, and had reference only to the sum to be set apart for her upon the happening of such an event. It follows immediately after the clause which declares that in the event of her marriage she shall have the income of thirty thousand dollars only, during her life; and the language would denote that he refers to that sum, as he speaks of it as “ the sum invested and set apart, for her to receive the income thereof — unless in such a contingency as her marriage, no sum can, in strictness, be said to be specially set apart for her, for the forty thousand 'dollars was to be invested for the joint benefit of herself and the two children during their minority. It is not declared what proportion of the income of it she is to have, or what proportion was to be applied to the maintenance and education of the children during their minority. That would seem to have been left to the discretion of the executors. In the -event of her marriage, however, a specific sum is set apart for her, the income of which she is to receive during life; and another specific sum, the residue of the fund, is set apart for the maintenance and education of the children. I think, therefore, that the contingency which the testator contemplated, and for which he meant to make provision, was the possibility of the marriage of his widow, and of her death before the happening of the event upon which the general division of his estate was to take place, and that he meant .only to refer to the sum which would, should she marry, be set apart for her. In creating this trust he certainly in[441] tended that the income of the forty thousand dollars should he a provision for the support of his widow during life, and for the education and maintenance of the two children during minority; and though, if the widow should die before they'reached the age of twenty-one, the whole income would be more than sufficient for the maintenance and education of these children, still it does not follow from that, that the trust would cease. The executors could act on their own discretion, or take the direction of the court as to how much should be applied for that purpose, and the residue would accumulate. (Gott v. Cook, 7 Paiqe, 521; Lang v. Ropke, 5 Sandf.., 363.)
In Clive v. Walker (1 Pro. C. C., 146), where the testator gave one of his sons maintenance out of a trust created upon his real estate, and also gave him- maintenance out of a trust created upon his personal estate, the court held that he was entitled to two allowances for maintenance, and referred it to the master to ascertain what allowance was necessary for his support, and directed that the rest should accumulate for his benefit.
But I regard the question, whether the trust" would or would not terminate by the death of the widow before the children attained their majority, as wholly immaterial upon the question of its validity. The test, in my judgment, is not whether any further limitation would be cut off by her death before that period, but whether there is a possibility that the trust might, by circumstances that may happen, be carried over beyond the period of two lives in being at the time of the death of the testator. I have pointed out that that is possible, and that, in my opinion, is sufficient to show that it is void.
The authority given to the executors to sell the real and personal property except the trust fund, did not, as respects the real property, vest in them any estate. It was simply a power, and the land passed at once to the devisees, subject only to the execution of the power if the whole estate could not be divided and partitioned off to the satisfaction of all [442] concerned (3 Rev. Stat., 5 ed., 20, 21, §§ 75, 77; Germond v. Jones, 2 Mill, 573; Hall v. McLaughlin, 2 Bradf., 107), at the time appointed for the general division of it. The income and profits that might arise from it before it could be so divided or sold belonged to the heirs, and would not necessarily accumulate ; but it is otherwise as respects the personal property. The title to that was vested in the executors, and as the testator had made no disposition of the income and profits that would arise from it before distribution could be made, the necessary effect would be that there would, in the mean while, be an accumulation of the income and profits, and not for any of the purposes allowed by statute. (3 Rev. Stat., 5 ed., 75, § 13; 4.) Though the will does not in terms direct the accumulation, the direction given leads to that result, and consequently the appointment of a further and distant time for the division of the personal estate, to which such accumulation was a necessary incident, was void, (Converse v. Kellogg, 7 Barb., 597; Hawley v. James, 5 Paige, 318 ; Vail v. Vail, 4 Id., 417.)
There are certain items in the executrix’s account which ! cannot pass. All the heirs agreed, in writing, that the mortgage of five thousand dollars on the farm in Orange county, devised by the testator to his wife, should be paid out of and be a charge upon the personal estate, the same as debts of the testator not secured by mortgage upon real estate; that it should be paid out of the assets without any charge or claim upon the widow, and accordingly the executrix has paid off the interest upon the incumbrance.
Some of the heirs, however, who signed this instrument, are infants, upon whom it is not binding. When they become of age they may, and probably will, ratify the act; but so far as the right to pay this mortgage depends upon this agreement, I cannot allow such payment as a charge against the personal estate. The land is the proper fund for the discharge of the mortgage. She took the land charged with the incumbrance. It was her duty to pay it off, or to pay the interest upon it, if she allowed the mortgage to remain, no [443] express direction being contained in the will that the mortgage was to be paid, otherwise than out of the real estate. (3 Rev. Stat., 5 ed., 38, § 4; Ram. on Assets, ch. 29, § 1, and the cases there cited; 2 Wms. on Ex., 144; Taylor v. Wendell, 4 Bradf., 324; Rome v. Fisher, 2 Barb. Ch., 559.)
The bond for $6,000, paid by the executrix to the corporation of Trinity Church, is in a different position. It was a debt due by the testator, for the payment of which he gave his bond. It was a charge, therefore, upon the personal estate, and not upon the realty, and the executors were bound to pay it out of the assets in their hands. This item will, therefore, be allowed.
The executrix should be charged with interest on the moneys of the estate which were appropriated by her in the purchase of the house and lot 156 West 34th-street. Three instruments were signed by the heirs, dated on the first of May, 1859, reciting that in consideration of their natural love and affection for the executrix, their mother, and in the further nominal consideration of the sum of one dollar, they agree that she shall have, use, occupy, and enjoy, during her pleasure, the sums of $3,750, $5,000, and $6,000, making in all the sum of $14,750, that sum having been appropriated by the executrix for the purchase of the premises purchased by her, Ho. 159 West 34th-street; but to these agreements the same objection exists, that they are not binding upon the infants, and they must, therefore, be held to be of no validity.
The small item for the rent of a pew in the church in Broome-street, rented by the widow for the use of herself and the children, after the testator’s death, is not a charge upon the personal estate, and cannot be allowed.
The item $100, paid to Mr. Bradford, is proved to have been paid for legal services rendered in the collection of rent. The two payments, to Mr. Smith, of $350, were stated by him, upon the hearing, to have been paid to him for legal services rendered to the estate, — Mr. Smith’s examination, [444] under oath, having been waived by the opposing counsel. I shall, therefore, allow all these items for leg'al services.
The two safes were shown to have been purchased for the use of the estate; and, also, that they were necessary for the safe keeping of the mercantile books and voluminous papers left by the testator.
This, I think, embraces all the items that have been objected to. A decree will be entered accordingly.