
    George C. Genet Ex’r, etc., App’lts, v. Mary R. Hunt et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed April 16, 1889.)
    
    1, Trust deed—Will—Suspension of the power of alienation.
    The plaintiff’s testator, Mrs. R., in 1858, in contemplation of marriage, made a trust deed, the leading purposes of which were to secure to her the income of her property for her own benefit during the marriage, free from the control, disposition or incumbrances of her husband, and to secure the control to her, if she survived her husband, or in case she should die during coverture, to her appointees by will; or if she should make no appointments, to such persons as at her death would be her heirs under the laws •of New York, as if all the property was real estate. Mrs. R. died in 1884, ■during coverture. By her will she devised all her estate to the plaintiff, in trust for the benefit of her children during their lives, with remainders to their heirs at law and next of kin. Held, that the validity of the suspension in the will of Mrs. R. is to be determined by the test whether it would be valid if it had been part of the limitation in the trust deed, and .'had been inserted therein at the time the deed was executed, and the trusts in the will are therefore to be considered as if created at the date of the trust deed of 1858, and that so reading them, they are invalid as :an attempt to suspend the power of alienation of real estate and the absolute ownership of personal property for three lives; and for the additional reason, that the two children, upon whose lives the trusts in the will are limited, were not in being when the trust deed was executed, and could not have taken such an estate as was limited under the will if it had been limited in the same manner in the deed of 1858.
    2. Same—When trust not within the provision of statute of 1849—
    Laws 1849, chap. 875.
    
      Held, further, that this trust is not within the purview of the statute of 1849, which was intended to apply merely to nominal trusts, to secure a married woman in the enjoyment of her separate estate, where this was the sole object of the trust.
    In 1853 Oaroline M. Riggs, then Caroline M. Field, in contemplation of marriage made a trust deed of her estate during coverture, and in case she did not survive coverture the trustees were directed by said deed to convey said estate “ unto such devisee or devisees, in such share or proportion as she, the said party of the first part, by her last will and testament may direct, which wfill and testament she is empowered, authorized and enabled to make, and by force of these presents, without any other further reservation of power in that behalf the same to alter,” etc., as if she were a, feme sole.
    
    Cai’oline M. Riggs died in 1884, leaving her husband and two children, the defendant George F. Riggs and Mary R. Hunt, and a grandchild, the infant defendant Alice Hunt. Mrs. Riggs left a will by which she devised all her estate to the plaintiff, in trust for the benefit of her children during their lives, with remainders to their heirs at law and next of kin.
    This will the court below declared invalid, on the ground that the will was made in pursuance of a power reserved in the trust deed of 1853, and that the suspension of the power of alienation dates from that time. The appellants claimed that the will took effect from Mrs. Riggs’ death, and that consequently it did not suspend the power of alienation for more than two lives in existence at that time.
    
      Geo. G. Genet and Wm. B. Crosby, for app’lts; Franklin B. Lord, for resp’ts.
    
      
       Affirming 4 N. Y. State Rep., 664.
    
   Andrews, J.,

—The question presented on this record is whether the trusts created by the will of Caroline M. Riggs, dated June 27, 1867, are valid within the law of perpetuities, or are void for remoteness. There can be no doubt that if the testatrix at her death was the absolute owner of the estate embraced in the trusts, they were valid both in respect of their purposes and duration. In general character they are trusts to apply the rents, profits and income of the trust estate for the support and maintenance of two children of the testatrix during their lives respectively, with remainder on the death of either, of the share of the one so dying, to his heirs and next of kin, except that in case of the death of either child during minority and without issue, the whole estate is to be held in trust for the survivor during life, with remainder to his heirs and next of kin; and in case of the death of both children during minority and without issue, then on the death of the longest liver the whole estate is given absolutely to designated beneficiaries.

Under the will the estate was to vest in absolute ownership, at the furthest, within the compass of the lives of the two children. The share of each child, provided he attained majority, would be liberated from the trust on his death, and the suspension of that share would in that event be but for one life only. But if either child should die during minority without issue, there would be a further suspension of the absolute ownership of his share during the life of the survivor. As to each share therefore there might be a suspension for two lives, but this would he within the limit allowed by law. There would be no difficulty in sustaining the limitations in the will, if the period of suspension in-this case is reckoned from the death of the testatrix and the will only is to be regarded in determining the validity of the trusts. The statutory limit of suspension of the power of alienation of real estate, is two lives in being at the creation of the estate, and a minority (1 Rev. St. 723 § 15), and substantially the same rule applies to limitations of personal property.

- By another section of the statute (section 41) it is declared that “the delivery of the grant, where an expectant estate is created by grant; and where it is created by devise, the death of the testator, shall be deemed the time of the creation of the estate.” If nothing is to be considered in this case except the terms of the will and these two sections of the statute, no doubt could be entertained of the validity of the trusts in the will. But if the will was the execution of a power of appointment vested in the testatrix, and not an exercise by her as the owner of the property devised and bequeathed, of the “jus disponendi,” incident to ownership, a new element is introduced, and the validity of the trusts in the will is to be considered in view of the trust deed of -January 6, 1853, and the provisions of the statute of powers. 1 R. S. 732, et seq. By section 128, of that statute, it is declared that “the period during which the absolute right of alienation may be suspended by an instrument in execution of a power, shall be cumputed, not from the date of the instrument, but from the time of the creation of the power,” -Section 129, declares that “no estate or interest can be given or limited to any person by an instrument in execution of a power, which such person could not be capable of taking under the instrument by which the power was granted.”

And by section 105 it is declared, in substance, that a power reserved is subject to the provisions of the article in the same manner as a power granted. It is claimed in behalf of the respondents that the will of Mrs. Riggs was merely an execution of a power of appointment, reserved in the trust deed of January 6, 1853, made between the testatrix (then Caroline .M. Field), of the first part, and George S. Riggs and others, of the second part, and that, construing the will in connection with the trust deed and the provision of the statute of powers, the trusts created by the will contravened the statute, for the reason that they were limited upon the lives of persons not in being at the creation of the power, viz.: upon the lives of the two children of the testatrix, who, though living when the will was made, were not born till long after the trust deed creating the power had been executed. The consequence is claimed to follow that the will was an unlawful attempt to suspend the power of alienation upon a contingency not authorized, viz.: the lives of persons not in being at the time from which, by section 128 of the statute of powers, the suspension must be computed. The trust deed was made in contemplation of the marriage of the settlor, Caroline M. Field, with George S. Eiggs. Its leading purposes were to secure to the settlor the income of her property for her own benefit during the marriage, free from the control, disposition, debts or incumbrances of her husband, and to secure the principal to her if she survived her husband, or in case she should die during coverture, to her appointees by will, or if she should make no appointment, to such persons as at her death would be her heirs, under the laws of New York, as if all the property was real estate. To secure these objects, the settlor conveyed by the trust deed to the trustees all her real and personal estate in trust, to receive and apply the rents, issues, profits and income to her use as received, without power of anticipation during her coverture, and in case she survived her coverture, to reconvey the property to her; but in case she should die during coverture, then the trustees are directed to grant, assure and deliver all and whatever may remain of the hereby granted premises unto such devisee or devisees, in such share or proportion as she, the said party of the first part, by her last will and testament,” the instrument declares, “she, the said party of the first part, is empowered, authorized and enabled to make, and by force of these presents, without any other or further reservation of power in that behalf,” etc!

Then follows an alternative provision, that in default of appointment the property shall “go unto such person or persons living at the death of the said party of the first • part, and being her heir or heirs-at-law, as would be entitled to take the same by descent from her in case the samé was ■ land belonging to her, situate in the state of New Yoyk, and if more than one person then in the proportion in that behalf prescribed by the laws of said state.”

The trust deed created a valid trust for the joint lives of Mrs. Eiggs and her husband, or during coverture, if she should become discovert by the death of her husband before her death. It was one of the express trusts authorized by statute to receive the rents and profits of lands and apply them to the use of any person during the life of such person, or for a shorter period (1 Rev. St., 728, § 55, subd. 3), and suspended the power of alienation of the real estate and the absolute ownership- - of the personal property embraced in the trust, during the trust term, and although the trust might have terminated before the expiration of Mrs. Riggs’ life by the death of her husband in her lifetime, the suspension was in legal effect a suspension during a life. Neither she alone, nor in conjunction with the trustees, could abrogate the trust. The statute makes every conveyance or other acts of the trustees of an express trust in lands, in contravention of the trust, absolutely void, and by analogy the same rule governs trusts of personal property. 1 Rev. St., 730, § 65; Graff v. Bonnett, 31 N. Y., 9; Campbell v. Foster, 35 id., 361.

The will further provides, in a contingency, for the suspension of the power of alienation and the absolute ownership of at least one-half of the same property during the lives of the two children of the testatrix, making possible a suspension for three lives, if the trust created by the trust deed and the trusts created by the will are to be read as if incorporated in a single instrument, viz., the trust deed of 1853.

If Mrs. Riggs remained the absolute owner of the property after the execution of the trust deed, subject only to the estate of the trustees for her life, the trusts in the will would be valid. The reversion in the case supposed would be property which she could grant or devise, and limit future estates thereon in her discretion, subject only to the restriction that they must vest in absolute ownership within two lives in being at their creation. But Mrs. Riggs was not the absolute owner of an estate in reversion after the execution of the trust deed. In form the whole estate was conveyed to the trustees. Their title, however, was in legal effect limited in point of duration to the trust term. Stevenson v. Lesley, 70 N. Y., 512; Crooke v. Co. of Kings, 97 id., 451.

But the trust deed itself contains a limitation of the estate to other persons than Mrs. Riggs in the event of her death before her ■ husband, and without having made an appointment by will, viz., to such persons living at her death as would take the property as her heirs under the laws of the state of New York by descent, as if it was wholly real estate.

The property transferred by the trust deed, was mainly personal, but at the time of Mrs. Riggs’ death, was mainly real, the trustees having under the authority of the deed invested the fund to a large extent in real estate situate in New York and Maryland. The remaindermen, in case the

event happened upon which the remainder was limited, would take as purchasers. It was limited to persons who would not be entitled as of course to the personal estate, and who might not be entitled to the real estate outside of New York, and whose title would not be subject to the tenancy by the curtesy of the husband, as it would have been if the deed had not been made (see Reading v. Rawsterne, 2 Ld. Raymond, 829). It is true that the remainder might be defeated by either of two events, by the death of Mrs. Riggs before the death of her husband, or by her will in execution of the power of appointment made and taking effect during his life, and it was in fact defeated in the latter way. But Mrs. Riggs could not during the life of her husband affect the limitation in remainder, except in the particular way pointed out, that is by an appointment by will. She could not defeat it by a conveyance inter vivas. The quality of absolute property, which enables an owner to dispose of it in any of the forms known to the law, did not attach to the interest remaining in Mrs. Riggs after the execution of the trust deed. What she did have was a reversion depending on the event of her outliving her' husband, which has been defeated by her death, and in addition a right to appoint by will only in case of her death during coverture. It is a doctrine of the common law that an unrestricted power to appoint a fee in lands by deed or will is equivalent to ownership, because the donee of the power may at any time, by exercising the power, acquire an absolute estate, and in such cases the question of perpetuity arising upon limitations made by the donee of the power, is determined with reference to the date of the execution of the power, and not of the instrument creating it. Sugden on Powers, vol. 1, p. 469, et seq. But the general rule is expressed by Chancellor Kent in his commentaries, (vol. 4, p. 337): “An estate created by the execution of a power, takes effect in the same manner as if it had been created by the deed which raised the power.”

The power of disposition reserved by Mrs. Riggs in the trust deed, was not an absolute power equivalent to absolute ownership. It was restricted to a disposition by will. The statute of powers (sections 81-5) defines an absolute power to be one by which the grantee is enabled in his life time to dispose of the entire fee for his own benefit. The power in this case was general but not absolute (Cutting v. Cutting 86 N. Y., 535)

We think the validity of the suspension in the will of Mrs Riggs is to be determined by the test, whether it would be valid if it had been part of the limitation in the trust deed, and had been inserted therein at the time the deed was executed. This seems to be the rule of our statute and it is the rule of the common law in respect to appointments under special powers. Mr. Jarman, in referring to this subject says that the reason that this test is not applicable to appointments under general powers, is that such powers are, in point of alienation, equivalent to actual ownership, but he adds, “this reason fails when the power, though general in its objects, is to be exercised by will only. In such a case the power of disposition is suspended during the life of the donee, and appointments made by virtue of it are therefore to be tested in the same way as appointments under a special power” 1 Jar. (5th ed.), 291.

The case of Re Powell’s Trusts (39 L. J. Ch., 188), decided by James, V. C., cited by Mr. Jarman, fully sustains the text.

The case of Rous v. Jackson (L. R., 29 Ch. Div., 521) seems to be adverse, but it proceeded, I think, on a failure to discriminate between a general and unrestricted power, and one to be exercised by will only, and this is the view taken by Mr. Gray in his work on Perpetuities, section 526. See, also, Marsden on Perpetuities, 250.

We think, therefore, the trusts in the will of Mrs. Riggs are to be construed as if created at the date of the trust deed of 1853, and that so reading them they are invalid as an attempt to suspend the power of alienation of real estate and the absolute ownership of personal property for three lives, and for the additional reasons that the two children upon whose lives the trusts in the will are limited were not in being when the trust deed was executed, and could not have taken such an estate as was limited under the will, if it had been limited in the same manner in the deed of 1853. The argument has been urged upon us that, conceding that the absolute power of alienation of the trust estate was suspended during the coverture of Mrs. Riggs, under the general rule, by reason of the disability imposed by the statute upon the trustees to do any act or make any conveyance in contravention of the trust, this disability was removed as to property held in trust for married women by the married woman’s act of 1848, as amended by the second section of the act of 1849. That section provides that any person who may hold any real or personal property as trustee, for any married woman, may, on her written request, convey the same to her, or the rents, issues or profits thereof, for her “sole and separate use and benefit,” but it is made a condition to such conveyance that the request shall be accompanied by a certificate of a justice of the supreme.court that “he has examined the condition and situation of the property, and made due inquiry into the capacity of the married woman to manage and conduct the same.”

This statute does not, we think, answer the difficulty. Assuming that the trust, in this case, was within the statute of 1849, the disability imposed upon a trustee of an express trust by the general statute is not removed in the case of a trustee for a married woman, except conditionally, the condition being the judicial action of a judge certifying after a judical examination of the facts, that it is a proper case for the exercise of the power conferred by' the act.

In substance, the statute confers a power dependent upon the consent of a judge of the court. Until such consent is obtained, the suspension continues. It could not be terminated by the conjoint action of the trustees and Mrs. Higgs. The general test of alienability is that there are persons in being who can make a perfect title. This cannot be predicated, we think, of a situation where judicial action, which may or may not be obtained, is requisite to authorize a conveyance. See Gray on Perpetuities, § 527.

But independently of this consideration, we think the statute was intended to apply merely to nominal trusts, to secure a married woman in the enjoyment of her separate estate, where this was the sole object of the trust. The statute in such a case permits the trust to be abrogated and the legal title to be vested in the beneficial owner, the separation of the legal and equitable estate no longer serving under our statutes any useful purpose. It certainly cannot be construed to prevent a parent, relative or other person from creating an express trust to apply the rents and profits of the trust estate for the benefit of a married daughter, niece, or other female, without subjecting it to the risk of destruction by the conjoint action of the trustee, the beneficiary and the court.

In this case the trust created by the deed of 1853 was not a mere formal or passive trust. The title to the property was vested in the trustees. It was strictly a trust under the statute. The deed not only declared the interest of Mrs. Higgs in the trust property, but limited thereon future contingent estates, to take effect on her death during coverture, unless defeated by her appointment by will. This trust was not, we think, within the purview of the Statute of 1849. If a conveyance had been made to her Under that statute, the property would not be held “ for her sole and separate use and benefit,” because the contingent estate in remainder could not in that way be defeated. See Bryan v. Knickerbacker, 1 Barb. Ch., 409; Wright v. Tallmadge, 15 N. Y., 315.

We think the court below properly construed the will, and the judgment should therefore be affirmed.

“Earl, Finch and Peckham, JJ., concur. Daneorth, J., reads dissenting opinion. G-ray, J., concurs on the-ground that the fee did not pass to the trustees by the deed._ They took no greater estate under it than was sufficient for them to perform the duties stated. The remainder or reversion remained in Mrs. Biggs, the grantor. The will was not in execution of any power, and there is, therefore, no contravention of the statute against unlawful perpetuities in the trust provisions of the will. Btjger, Ch. J., not voting.”

_ The plaintiffs ask for a construction of the will of Caroline M. Biggs, in respect to certain trusts claimed by "her heirs at law to be invalid, and if that claim be sustained, that the executor and trustee account. Field, one of the defendants, demurred to the complaint upon the ground that the facts stated do not constitute a cause of action. But his demurrer was overruled and judgment absolute rendered against him.

The heirs at law, and other defendants having an interest, reiterating their claim as to the invalidity of the trusts, ask that it may be adjudged that the will was not valid as-an appointment of the property embraced within a trust deed made by Mrs. Biggs, January 6, 1853, or as a disposition of the individual estate of the testatrix, and that the estate held by the trustees under that deed at the time of her death, vested in the defendant, Mary R. Hunt, and the defendant, George F. Biggs, in equal shares, and her individual estate in her next of kin and heirs at law.

Upon trial at special term the court held the will to be-in valid, and upon appeal to the general term, the judgment upon that decision was affirmed, and the plaintiffs appeal to this court.

Danforth, J.

(dissenting). —The record shows that in 1853, Caroline M. Field, contemplating marriage with George S. Biggs, conveyed all her property to certain persons in trust, to hold the same for one year, and if the anticipated marriage should take place, to collect and pay toiler the rents and profits during coverture, or her life if she should not survive such coverture, and at the expiration of the trust, reconvey the property to her; or if she should “not survive her coverture then upon the further trust, that they, the parties of the second part, do grant and deliver whatsoever may remain of the premises unto such devisee or devisees in such share or proportion as she, by her last will and testament,” might direct; which will and testament the deed declares she “is empowered, authorized and enabled to make, and without any other or further reservation of power in that behalf the same to alter, re-yoke and make anew with the same or different provisions from time to time and at all times during her said coverture, at her free will and pleasure in like manner as if she were a feme sole, provided that every such alteration or revocation be made in writing subscribed by her and attested by two subscribing witnesses.” The marriage took place. The grantor, then Caroline M. Biggs, died November 21, 1884, leaving surving, her husband, George S. Biggs, a son, George F. Biggs and Mary B., now the wife of Charles W. Hunt, and Alice Hunt, an infant under fourteen years of age, the only child of Mary B. By her will she devised to the plaintiffs and Franklin C. Field, all her estate in trust to collect and pay over the rents and profits thereof in equal shares to her children George and Mary during their lives, declaring that at their death, the respective shares of the estate set apart for them, should go and belong to their heirs at law and next of kin as if they were absolute owners thereof.

The will was admitted to probate. The plaintiff, George C. Genet, alone qualified and acted as executor and trustee under it. The courts below have so construed the ante-nuptial agreement as to deprive the settlor of any power of disposition of her property, except as regulated by the terms of that insrument. We think the court erred, both upon that point and in the effect given to its provisions. Upon the face of the will, the intent of the testatrix is plain. “Being desirous,” she says, “of making a testamentary disposition of all” her property, and “especially of her trust estate ” (referring to the deed of trust already mentioned), she directs her estate “to be set apart into two equal shares, or portions, for the benefit of her two children, George and Mary, respectively. She entrusts the property to the plaintiffs, as executors and trustees, to manage and invest, and apply the proceeds in equal parts to the maintenance and education of those children, until they respectively attain twenty-one years of age, and then to pay over “to each child attaining that age, the net income, rents and profits of one-half of said estate, for his or her sole use and benefit during their respective lives, and after their death respectively, the shares of said estate so set apart for them, shall go and belong to their heirs at law and next of kin respectively, in the same manner as though they were respectively absolute owners of the same.” The testatrix also declares, in case of the death of either of my children before attaining lawful age, and without issue, I direct the share set apart for the benefit of the one so dying, to be applied to the use and benefit of the survivor in the same manner as is before provided in respect to their own share, but if the one so dying shall leave issue, then such issue shall be entitled to the same. The other provisions of the will are not material. It is not questioned by the respondents but that these provisions would be valid were it not for a supposed illegal suspension of alienation or of ownership, found, not in the will, but in the deed of trust, or an incapacity on the part of the beneficiaries by reason of certain statutory provisions.

I am unable to see that the two instruments are so connected as to make the relation fatal. In the first place the object of the trust created by the deed was merely to prevent interference by the expected husband and to secure to the grantor the same rights of property as if she were a feme sole, free from his control, disposition, debts or incumbrances. To that end it provides that if she remained unmarried for one year, the property was to be absolutely conveyed and delivered to her. In case she married within the year, and .should not survive her coverture, the grantees were to convey the property as she, by will'and testament, should direct, and upon her death, leaving no will, then to such persons as, under the laws of the state, would be entitled to it. The will is plain in its provisions, and the construction which has so far succeeded in defeating its execution, is that it was made in pursuance of the power of appointment contained in the trust deed, that it is deemed, to have taken effect at the date or delivery of that instrument, and so is void as against the statute forbidding a suspension of the absolute power of alienation for a longer period than d,uring the continuance of two lives in being.

The position of the defendants is that the will attempts to give the trustees therein named an estate in trust during the lives of the children of the testatrix, and that this estate could not have been given to them by the marriage settlement, because the children were not then in being.

We do not think this is consonant to reason. It would be strange if the grantor, in obeying a provident fear in regard to the interference of a future husband, had so .bound herself as to be unable, after marriage, to provide according to her then judgment, for the wants or deserts of those who, in consequence of that marriage, should become dependent upon her, or for others' whom, at her death, she might regard as proper subjects for her bounty. The trust continued no longer than her coverture, and by the trust deed she parted with no greater estate than was necessary to enable the trustees to manage, and'collect, and pay over the rents and profits accruing from her property. The power of disposition by will remained to her. That she did not part with. It would pervert language to give any other meaning to the deed in this case. It reserves to her the right to dispose of the property described in it to any person, according to her own absolute will and pleasure, in such share and proportion as she pleases; “to alter, revoke and make anew, with the same or different provisions, from time to time, and at all times during her coverture, notwithstanding her said coverture, as if she were a feme sole. Her will, whenever executed, must speak from the time of her death, the objects of her bounty might be changed at her pleasure, and it is not required by any rule of the common law, or by any statute, that her choice as to those objects, or the manner of distribution, should be restricted by the condition of things existing at any prior time.

The situation of persons and property is changeable, and in designing a will, the parties must be deemed to have looked forward to the relation of the testatrix in regard to both at the time of her death. That in such disposition she was to be, in all respects, unfettered, is the obvious and • clear meaning of the instrument.

The argument of the respondent is that the will is in execution of the power, and that the estate created by it takes effect as if originally created by the instrument raising the power; that although the trust deed was executed in 1853, the will made in 1884 is to be treated as if made at the former date. In 1853 the grantor was unmarried, but then contemplating matfimony. In 1884 she had married and was the mother of two children. By a will she provides, through a trastee, for those children so long as they live, remainder to their heirs and- next of kin. We are asked to read that will as if made in 1853, and then declare it void because the two lives (those of the children), during which the absolute power of alienation is suspended, were not in being at the creation of the estate. The position df the respondent would lead to a result, to be adopted of course if required by the authorities, but with reluctance, as at the doing of an unjust and absurd act. But we find nothing in the statute or the cases cited to require it, or any rule or regulation in either the statute or the common law which interferes with the intent of the testatrix as expressed in her will. By its terms the power is as we have seen unqualified to deal with the property by wifi at the grantor’s pleasure. Yet if the view of the respondent prevails, she could make in 1884 only such wifi as she might have made in 1853, or some thirty years before. Assuming for argument’s sake with the respondent that .the testatrix was acting under a power, we find no violation of any statute. A power within the definition of the Revised Statutes is general, where it authorizes the alienation in fee by means among others either of a conveyance, or a will, of the property embraced in it, to any aliens, whatever. 1 R. S., 732, § 77.

Such is the power, if any, in this case. Under such a power at common law the donor disposes of the estate as if she were seized in fee, and to whomsoever she pleases, and therefore the period of the commencement of limitations in point of perpetuity is the time of executing the power, and not that of raising it, and the validity of the estate devised does not depend on whether it would have been valid if limited in the original instrument. Sugden on Powers, 394, 396; Chance on Powers.

The statutes cited by the respondent declare fhat the absolute power of alienation cannot be suspended by limitation or condition for a longer period than during the continuance of not more than two lives in being at the creation of the estate (1 R. S., 723, §§ 14, 15), but the same statute declares that where the disposition is by will, the. death of the testator shall be deemed the time or the creation of the estate. 1 R. S., 726, § 41.

It is also the general rule that a will can only take effect at the death of the testator, and an assertion that a power given to make a will in the future requires the will when made to be construed as if it took effect at a previous time, should, before assented to, be supported by some very explicit language on the part of those competent to impose the condition. That language is not found in the deed, and no authority cited by the respondent requires that conclusion. In Rous v. Jackson (L. R. 29 Ch. Div. 521), a case not unlike the one at bar was before the court. There was a settlement in trust before marriage, with general provisions in substance like those in this instance, a power reserved to make a will. A will was made and after death of the testatrix it was claimed to be invalid because limiting life estates to persons unborn at the date of the settlement, and so contravening the law against perpetuities. The court held otherwise. It could find no distinction between the case of capacity to alienate by reason of a general power, and general capacity to alienate property, and held that a general power of appointment was outside the rule against perpetuities, and that the period of commencement of limitations in point of perpetuity, is the time of the execution of the power and not of the creation of it, .and declared the appointment valid, whether made by deed or will.

On the other hand, if, as the respondents claim, the case is within the statute of powers, the authority reserved by the deed is under its definitions a general and beneficial power. It authorizes the alienation in fee by means of a will, and so is general. 1 R. S., tit. 2, pt. 2, chap. 1, art. 3, § 11, p. 732. It is beneficial, for no person other than she who reserved it has by the terms of its creation any interest in its execution (id., § 79), and being both general and beneficial, she possessed an absolute power of disposition (id., § 84), and whether the power be regarded as granted or reserved is immaterial. Id., § 105.

The obligation of the trustees to convey and hand over the property held by them, according to her directions, is-absolute. But without the interference of the trustees, their estate ceased when by the death of their grantor, the purposes for which it was created, had been accomplished. 1 R. S., p. 730, § 67. It is obvious that the trust created by the ante-nuptial settlement was a trust during coverture, and when this terminated by the death of the settlor, the will took effect. Its provisions were valid whether its execution was justified as a grant of property by the owner, or as an appointment under the statute.

In either view we think the learned court below erred, and the plaintiffs are entitled to such construction of the will as will give effect to its provisions.

The judgment of the general and special terms should therefore be reversed and a new trial ordered with costs to abide the event.  