The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-01-22
pIcIsl|


Esq, died in Is
life estates were
1916, one Of hS B6nss,S4S0 sn6 fai
pose Of annulling the will, and OF obtaining pari
ton Of the real estate Of the testator This
referred to Pho T. Ruggles, Esq. who after hearing
argument in relation TO the will, decided its provi-
sons to be against statutes and void and that the
real estate should be sold for the purpose OF making
partition. Under the judgment of this decision OF
Mr. Ruggles and report the property vas sold in the
fore part OF the year 1862 Samuel Lord, Esq, on
the sale purchased some valuable lots but refused
to complete the purchase, on the ground that the
referee could not convey to him good title in fee.
An order entered pro omd atspe cia term OF the
Supreme Court, compelling Mr. Lord TO complete his
purchase. From this order an appeal was taken TO
the general term, which reversed the order OF the
special term, and sustained the views of Mr.. Lord.
From this last orderth heirs Of the estator appealed
to the Court Of Appeals and on that appeal this opin-
considerably in value since the sale.
OPINION or THE COURT.
James Amory, the testator, died in February,
1885. BY the seventh clause OF his will he appointed
his wife artha, during her widowhood, his execu-
trix and Barriers Cross, his executors and trustees
Of his estate real and personal The testator then
proceeds to declare, g notw outstanding anything
herein before contained, do devise the same in
trust to them for the purposes Of this will and the
better TO effect my purposes in said will" He al.
thoriZed them to lease his real estate for limited
term, and to erect buildings, pay all liens, and il it
shall be to sell much OF the real estate
as may be necessary for that purpose and also to re-
ceive tue rents profits in come, and dividends of his
estate zeal ana personal and then pay them Overt to
disposed OF by her directed in The previous clauses
Of the will and after her death marriage then to
| pay over the per Onal estate and the net annual
rents and profits, &C., to and among the devisees
| aud legatees i'll tie manner therein before d.
rected.
The iesta.or by this provision creates trus. fund,
Consisting Of all his real AID personal estate The
trust may continue during the life of Mrs Amory,
directed
beneficiary the rents and profits during her life or
until her marriage TIE trust, however, is to CONT
nue. beyond her life, since the trustees are required
after her death or marriage TO pay over the personal
estate and the let annual rents, &c, to and among
the deyi ees and legatees as therein before provided
BY the third clause of the will, the personally is
divided into equal shares and given to such of the
testators children survive him, and to the issue Of
those who die before him, the issue respectively
taking the share of their deceased parent The trust
as to the personal estate, OF course, ceases with the
| life Of Mrs. AmOry
By the fourth clause, the net annual income of the
real estate is given, one share to each surviving
ch,d to be received by such child during his her
natural ife As the trustees, by the seventh clause
are to pay over the net annual income, as directed
by the fourth clause, the trust to the real estate
must continue during the lie OF the children sur
| viving the testatOr. This Is the second lie. But
the trust does not then cease because it provided
by the same clause not only that each child shall
receive his or her share, ring his or her natural
life" bu: thai " afterwards the same shall be
| wife or husband shall not marry again." And at
the death Of such child and the determination of the
interest Of bis or her wife or husband he gives the
profits to the children Of such child absolutely in
| fee, as tenaIIes in common"
| As the wife or husband may remain unmarried,
the trust may continue for the life Of those persons,
which is the third life in the order prescribed by the
testator. II we are to understand the language Of
the devsor in its usual and ordinary acceptation,
there is no room for construction 1t is plain and
ling one, by expressly declaring that, notwitstand-
ing anything before contained, che devised the
whole property in trust for the purposes Of his will
One OF these purposes was that the trustees should
| and pay them over to the husband or wife Of
child dying after the decease OF the testator;" and
as to remove all doubt as to he continuance of the
trust he further declares in the fourth clause, chat
upon the determination Of this interest," Chat u.s. the
equitable right of toe husband wife to receive
t,ese Tents) 1.-THE estate shall go in fee to the ult-
mate devisee.'
The right of the unmarried beneficiary to receive,
and Of course the duty of the trustees to collect and
pay over would oIy terminate with the life Of the
frner and the estate would then vest in interest and
possession at the same moment To my mind, it is
too plain for controversy that il any trust is consi
tuteo by tue seventh clause, 1t endures, and was in
tended TO endure for three lives at least. 1t there
fore con'raveued the provision OF the statute which
declares that the absolute power to sell real estate
shall not be suspended by any condition or limitation
whatever for period longer than two lives in being
THE crea ion OF The estate, and was consequently
void. It's however urged upon the part of the re.
sponde tina. the testator gave sue :essve legal es-
taes to the devisees named in the will That these
are valid for two lives and void as to the residue
cording to the provisions OF the II s. r. s. 723.
But this hypothesis repudiaes the seventh clause al
together.
When this clause was penned, the testator was
fully aware that he had in form devised The rents and
profits to his wife, children and their surviving wives
and husbands. but he declares tina. Notwithstanding
this deposition he devises the whole of his estate in
trust to the trustees designated, through whom the
widow ard other devsees TO receive the rents and
profits previously allotted to them They are to take
from the trustees, and through the trust.
There is no discrepancy between the different
parts Of the will BY the prior provision of this ia
strument the widow and The other benefciaries were
to receive for their use the rents fer their lives re-
spectve'y. The mode by which this object was 10
be effected was the trust and in the clause establish
ing it the esator distinctly refers to all the deysees
the ceStut que trusts who are to eive his boun
ty ia the manner AID by the fundamentally there
designated. Tbs was his lea ling purpose, and to
Its accomplishment every other part OF the will
whether apparently in conflict with it or not, il
made subseIyient. To reject clause thus expli:it
ard emphatic would be in effect to make will, in.
stead Of cfSsrurg The one executed blythe testator
! The conclusion, / think, is Inevitable, from the
plain language OF the testator, that he intended to
create trust as to his real estate, and bound
to presume that be designed to establish legal trust
with all its incidents One OF these was, that The
Whole estate, legal and equitable, in the land should
be vested in the trustees, and that the person Tor
whose benefit the trust was created should take no
estate in the lands but might enforce the perform
ance Of the trust in equity. q r s., 729, $. 60
This equitable right the testator intended confer
ON the cestr que trusts, the widow included and no
ether; and il by construction we can change that
equity into legal estate in the land, reason
why we might net designate new beneficiary.
IL is said that since the widow, as of the trus
tees was entitled to possession and the receipts of
The rents and profits, she must be deemed to have
legal esi-te Of the same quality and duration &C.
Der beneficial interest, according to s. AZ OF Il. s.
| T27. There two answers 10 this suggestion
First that this section not aimed ut active, bat
| passive trusts. "a Paige. 404 page.) This is far
| IRON blipg a nominal trust. The trustees were 20
les Sc the land collect rents and to erect buildings
and it was their duty TO preserve the properly for
the benefit OF the tenefcaries whose interest accrued
| subsequent TO thoSe Of Mrs. Amory.
In the second place, the estate established by the
| will was JOINT tensncy Mrs Amory hsdat law no in