The sun. [volume] (New York [N.Y.]) 1833-1916, 1891-10-28

executed solely for the. benefit Of such othe
ana their %ay
compelled in equity unless their execution q
op The viii a9 b Is made expressly nnS
where the grantee Of the power has the RICH
seeons iS6 S and f q %sie provsS
where the ysS ds
but has omitted to designate n person to exc
cntei Il, TRUST power. to DO valid. therefore
tSs sso 81 81 hs
sole SsSat and II must be- exercised fST tn
It's sq %hy be- IN sSn
| A non enforceable Imperative power is an i'm
possibility under our law. unless by the In
depend for It's execution on the will OF thu
T q Wse Ho s s us Il yaa
sr nc to the s 9TH
' 70 rass % the Ss ri
this purpose we must read the whole instrn.
me1t, Including the provisions. admitted to be
g gG,n ah f r. royisons though neiestnst tG
tanning the to sr nt hs Van kleeoh
a aT D9sG 50 SSh99re aaG 2owend 4S kiat as
!. The promi9ent fact in the testator's, will is
Sat h RSs4s to 'hsEt
kin should take any OF it except such as he
Gay,e to them through the severe spscaltrqsts
providing that m Of them 5eS ae should I
w or to TO-
visions should be excluded from. any partici-
under its provisions should be devoted
to erass trust Of this he bsa1s
merous trusts for the benefit OF his relatives
and for the creation Of other libraries, and
cial, Trusts.". In tho thirty-ninth article lie
devised and be1ueathcd to his executors and
TO their successors In the trust hereby Gro.
them" all the rest and residue Of his property,
to have and to hold the same unto my said
in the trust hereby created = 70 pos
the Ses a his nes the s, dT
apply, the same. and the proceeds thereof to
tine the oil, objects "a and PURPOSES mentioned in this
to collect the income of the whole estate. that
st nat in the trusts and
estate rns. n the 1e esate ny
denominnted the " General Trust" and in the
twenty-sixth article he gives direction as to
the ths,t continuance Of the trust Of my general
n
and In plain. unequivocal language he indi-
Gated his purpose to be that tho trustees
until they should divest themselves Of it in
Carrying r.ir on, ont the PURPOSES mentioned IN the
a E'4 rns % ts a an tis thu th
portant feature Is that the power there given
eP sne trustees, and the only power that could
devote his property to charity. was an impera-
tive one.
the question whether the property shall GO to
charitable purposes. There is no act involving
that disposition OF the property the execution
81 which is made to depend on tho will Of the
Discretion there is as to the. objects of the
lion OF the estate Il the Tlden Trust di IS in
,orporated in form and manner satisfactory
70 the trustees they are authorized TO convey
much thereof as they shall deem eNpedient,
and II for any cause or reason " they deem it
whole or any part OF the residue. then to apply
a thsy do not napE to
sticial to mankind.
The object and purpose in this scheme OF the
estator is. therefore. devotion Of his estate
But it is said that, the Tilden Trust repre-
's ys So hn IMITATION tn I, SeFhent H% and
clause Of the article.
lower to devote the estate to the other unde-
That We ths p ntter in
character. the former is discretionary wholly
md depends for its execution upon the Will OF |
eparate and distinct from the OTHER and i the
'ower to endow the Tilden Trust is likened to
power OF appointment.
,y,nr In,
estnmentary dispositions OF property that no
itatio , Of authority is necessary to show their
Their execution may depend solely upon tho
'lil OF the donee q the power. and they are
ion q the statute, already quoted: Il siveto
hall within tho lifetime Of The survivor OF,
ase suggested On tho brief. and is undoubted.
a good testamentary beluest; and is a good
10 execution Of Which depends o" "nth the viii oi
and is not cnforceabie at the suit of A. ..
In such case the title to the property de-
nder the will to tho Interior donee. subject to
70 execution OF the power. But there is no
,e viii before u.s. FoloW int beauest s' by sha
ift over to charitable uses or let it stand alone
the VII. and you have IN one case alterna-
there Is @ preference expressed or implied
y the testator as to tho purpose to which his
state e. shall 90 and tho objects that shall be
In the one case the choice lies between tho
ldividual legatee and the heirs, in the other
larity.
But in the will before us there is no alterna-
vo purDoso. There is single scheme. a gift
cha irritable uscs. and the suggestion OF tho
ilden Trust indicates no intent in tho tesla
RS mind contrary to the Intention to devote
q estate to charity. and in this respect tho
III before us is distinguished from the case
lEgested by tho learned counsel for the ap-
'llants OF power to convey the estate to
individual at u stated age, and in !
Q event Of the donee Of the power dceming
inexpedient 30 to do. then gift over to un- I
filmed. charitable uses.
There the primary purpose OF the testator is
gift to the designated legutee and not to {
arity; And tho intent to give the estate to !
aritable uses is secondary and limited upon :!
o determination OF the trustee not to make
o primary gift. Such u will plainly indicates !
purposes. and contains alternative I
wers. The two gifts are in no respect con- [
cited. and II tho gift over is void. the first y
~ stand. and II executed represents the !
II OF the testator. !
But In the thirty-afth article OF tho will I'M q .
r consideration there Is no antithcsis so far g
the purpose to which the property Is to be n"
voted is concerned. 1t expresses a single "
tent only. viz. to devote the estate to char G
bile uses. and. while Of course In such a
ha irhk for md |