
    Sarah Lang v. William Ropke.
    An express trust, suspending alienation during a minority, is not an absolute term of years, irrespective of life, but is determined by the death of the minor before he attains his age.
    When the trust is to continue during more than two minorities, the limitation is void, since it may suspend alienation beyond two of the lives upon which it depends.
    But it is certainly valid when it appears from the state of facts existing at the death of the testator, that it could not exceed a single minority.
    An estate by devise is not created by the publication of the will, but by the express words of the statute, the death of the testator is the time of its creation.
    In computing the period of suspense, the lives of annuitants are not to be added to a term of minority.
    When the will directs that a capital shall be set apart for the payment of the annuities, there must be a distinct capital for each annuity, and hence the suspense in such case cannot exceed a single life in addition to the term of minority.
    But a trust for the payment of an annuity, even when it is payable out of rents and profits, does not fall within Sub. 3, in § 55, in the article of trusts. That subdivision is confined to the cases in which the whole rents and profits are to be applied or paid over.
    An annuity given by a will is a pecuniary legacy, and the trust for its payment must be referred to Sub. 2, in § 55.
    It is not subject to the prohibition in § 63, and therefore imposes no restraint upon alienation. The annuitant may release to the persons entitled in remainder, or may unite with them in the conveyance of an absolute fee.
    The invalidity of a trust for accumulation does not affect independent provisions in the will. The only consequence is, that those for whose benefit the accumulation is directed to be made have an immediate right to the whole income.
    A power to sell lands and distribute the proceeds among those to whom the lands are devised is not one of the purposes for which an express trust may be created. The sale is for the benefit of devisees, not of legatees. •
    It is, however, no objection to the validity of a power in trust, that it-is granted for the same purpose for which an express trust is authorized.
    The R. Statutes have imposed no limitation whatever upon the creation of trusts, in the full sense of the term, and a valid trust may now be created for any and every purpose, for which it might have been created before the R. S. were adopted.
    The changes made by the R. S. are: 1. The entire abolition of passive trusts, and 2. A limitation of express trusts, i. e. of trusts which pass an estate as well as grant an authority.
    But these changes have neither abridged the real power of the owner of lands in the creation of trusts, nor the jurisdiction of equity in compelling their execution.
    On the contrary, when there is no illegal suspense of the power of alienation, the real intention of the party creating the trust will in all cases be carried into effect.
    When the trust is passive, the intention is executed by giving to the cestui qui trust a legal estate; when active, by construing-it as a power in trust, if it cannot take effect as an express trust.
    In the latter ease the powers and duties of the trustee and the rights and remedies of the beneficiary are exactly the same as in the case of an authorized express trust.
    When the trust is entire, and suspends unduly the power of alienation, it is wholly void, but its mere invalidity as an express trust never operates to deprive the beneficiary of the benefit intended.
    
      Held, that the trusts of the will, (except that for accumulation,) and the power of sale, given to the executors, were valid, and the power well executed by the surviving executor, and consequently that the defendant was entitled to judgment.
    (Before Duer & Campbell, J. J.)
    (January Term, 1852.)
    John Lang, of the city of New York, died on the 17th of March, 1836, having made and executed his will, dated 9th February, 1824, whereby, after bequeathing certain legacies to his wife and his mother-in-law, Mrs. Ustick, he disposed of the residue of his estate as follows :
    Item.—All the rest, residue and remainder of my estate, both real and personal, whatsoever and wheresoever situate, lying and being, I give, devise, and bequeath unto my beloved children, Hannah Gamble (wife of John M. Gamble of the United States Navy), Robert Ustick Lang, Mary Lang, John Lang, Jr., Sarah Lang,' Charles Lang, William Lang, and Edmund Lang, and to their "heirs, executors, administrators and assigns for ever, equally to be divided amongst them, share and share alike, subject, however, to the deductions, limitations, and provisions hereinafter contained and set forth, and to the annuities and legacies above bequeathed. Item.—Should any of my children die, leaving a child or children, him or her surviving, I will, order, and direct that such child or children shall, in each and every such case, stand in the place and stead of the parent so dying, and take the share or portion of my real and personal estate so given and intended for such parent, and I give, devise, and bequeath the same to him, her, or them, and to their heirs and assigns for ever accordingly. ***** Item.—I order and direct that all my estate, consisting of houses, lots, and premises, and making up my whole real estate (together with five-twelfths of the newspaper establishment aforesaid), be vested in my executors, or the survivors or survivor of them, until my youngest child living shall attain to the full age of twenty-one years, and that they, or the survivors or survivor of them, rent out the same from time to time, and at all times for the most moneys which can be obtained therefor (and that they continue the said newspaper establishment with my interest and portion therein if they shall deem it prudent, or sell the same if that -shall be deemed the most advantageous and desirable on account of my estate and those interested therein), and that they, or the survivors or survivor of them, pay or disburse for the maintenance, support, and education of my children, out of the neat proceeds of the rents, issues, and profits of my real estate, and of the neat proceeds of the interest, income, profits or dividends of my.personal estate when and as often as the wants and necessities of my said family shall require the same. Item.—All sums over and above what is so bequeathed and devised for the support of my said family as it shall or may accumulate, I direct my executors as aforesaid to invest in some productive stock or to be loaned out on bond' and mortgage, and to call in, change, or re-invest the same as the interest of my estate in their opinion may require. * * * Item.—For the purpose of facilitating a division of my estate amongst my children when the youngest living shall be of lawful age, I do hereby authorize and empower my executors or the survivors or survivor of them, to sell my real estate, or any part or parcel thereof, and to give deeds of conveyances to the purchaser or purchasers thereof in fee simple, saving the house which is given to my said wife, which can and may be sold also, but not during her lifetime. * * * The testator made and published a codicil to his will on the 29th July, 1831, appointing new executors in lieu of those appointed by his will. Under the power contained in the said will, Edward Harris, the surviving executor, so appointed on the third day of July, 1850, executed and delivered to Wilhelm Ropke, a conveyance of certain premises, of which the said John Lang died seized. .
    
      At the time of the death of the testator, there were living his widow, Sarah Lang, and seven children, namely : Hannah Gamble, Robert U. Lang, John Lang, Jun., Sarah Lang (now Spencer), Charles E. Lang, William Lang, and Edward Lang.
    All of these children, except Edward Lang, were of age at the time of the death of the testator. Edward Lang became of age in the month of October, 1837.
    Robert U. Lang died intestate. July 10th, 1837, leaving three children him surviving, viz : John Lang, since deceased, Sarah Lang, and Robert Lang. John Lang, Jr., died August 7th, 1836, intestate and without issue. Charles E. Lang died July 9th, 1848, intestate, and without issue. Sarah Lang, the widow of the testator, died in March, 1850.
    The estate of the testator consisted of some personal property, but chiefly of real estate, consisting of seven houses and lots in the city of New York, of unequal value, so that no one house and lot could be given to any one child as his equal share.
    At the time of the publication of the codicil to his will, two of the children above named, viz. William Lang and Edward Lang, were under the age of twenty-one years.
    The case was submitted for the opinion of the court without action, on the above facts, the plaintiffs contending that the devise and disposition of the real estate of the testator contained in the will was invalid,-and that she was entitled in fee to one undivided tenth part thereof, and the defendant contending that he is the sole owner of the said premises, by virtue of the conveyance executed by the executor of the said John Lang, the testator.
    
      Wm. Curtis Noyes & A. S. Garr, for the plaintiffs, made and argued the following points:
    I. The will of Mr. Lang suspended the absolute power of alienation of the real property for more than two lives in being at the creation of the estate : 1. It is suspended by the trusts of the will during the lives of the widow and Mrs. Ustick, and until the youngest child attained the age of twenty-one years. (1 R. S. p. 723, §§ 14, 15, 16; Hawley v. James, 16 Wend. 4 Kent Com. 271.) 2. This objection is not obviated by the power of sale given to the executors; as the direction to sell is not peremptory, and is besides of doubtful construction. 8. But if there was a peremptory direction to sell, still the same character is impressed upon the proceeds of the sale in the hands of the trustees, and the trusts would continue, and the result would not be different regarding the fund as personal property. (1 R. S. p. 77, § 1.) 4. The time of the “ creation of the estate” in this instance, is the publishing of the will. (16 Wend. 121, supr.; Ram on Wills, 6; Lewin on Perpetuities, 170 to 172— 442; 4 Kent’s Com. 283.)
    II. The trust for accumulation until the youngest child was twenty-one, was void; it being for the benefit of adults as well as minors. (1 R. S. 773, § 3, 4, 5; Boynton v. Hoyt, 1 Denio 53.)
    III. The power to the executors to sell the real estate was void, being evidently for the same purpose for which an express trust is authorized under § 55. (Wend. § 55 ; 1 R. S. 729, § 58 ; per Bronson, J., in Hawley v. James, 16 Wend. 174, 5.)
    
      Geo. Wood and Theodore Hinsdale, for the defendants, made and argued the following points :
    I. The sale of the premises in question by the executor under the power in the will to the defendant, is valid and operative, and the plaintiff has no right to them or any part thereof, as heir at law.
    II. The purpose for which the power was conferred upon the executors, was a lawful motive, namely, to facilitate the division of the estate.
    III. This power was not void, as being for the same purpose for which an express trust is authorized under 1 Rev. Stat. page 739, § 55. 1st. The object is to facilitate the division of the estate, personal being more readily divisible than real estate. 2d. Even if the dispositions in the will of the property, which is the subject of the power, were invalid, the power would be good, as it would facilitate the division among the heirs at law. 3d. A will may be void in some of its provisions, and good in others, when the parts can be separated. 4th. The sale under the power is not for' the purpose of carrying out the limitations merely, but for the purpose of division of the estate generally.
    IV. The disposal to the executors in trust for support and maintenance, is good, being expressly authorized by the said §55.
    V. There is no trust for accumulation for any period directed by the will, which is the case contemplated and prohibited in the § 37 of Rev. Stat. 726. * The will means by accumulation, merely the surplus of rents and profits beyond what is necessary for support and maintenance. There is no direction in the will that this surplus shall accumulate for any time. The executors are simply directed to invest it, a duty which the laws would impose upon them as trustees, without any testamentary direction. The interest resulting from such investment is not required to be accumulated either‘by law, or by the direction of the will.
    VI. If the direction for accumulation had been such as was prohibited by the Revised Statutes, it would be inoperative only pro tanto, without impairing the rest of the will. (1 Rev. Stat. 726, § 38.)
    VII. The trust created is not in violation of the rules of perpetuities prescribed in the Revised Statutes. Alienation is not suspended for more than two lives in being- at the creation of the estate, viz. the death of the testator. 1st. Such a construction shall be given, if it will admit of it, as will support the disposition. (Archibald v. Thomas, 3 Cow. 289, 6 Paige, 54.) 2d. A will, where no specific time is limited, is presumed to refer in its provisions to the testator’s death. 3d. The youngest child living, means the youngest living at the death of the testator, when the creation of the estate takes place. 4th. The inalienable trust lasts only till that youngest child attains the age of twenty-one, and not till the time when, if it should continue to live, it would attain the age of twenty-one. It therefore does not last beyond that life in being, and will not last so long if that child should survive twenty-one. 5th. The trust is not suspended by the lives of the widow, and Mrs. Ustick. It is not at all dependen) upon them. 6th. They take annuities which are alienable by them at any time. They are, therefore, persons in being who may join in disposing of the estate. 7th. In the Lorillard will, though the trusts were held void, annuities were sustained.
    VIII. The conveyance by the surviving executor is executed in due form, and in due exercise of the power to pass the estate.
   By the Court.

Duer, J.

It may be admitted that the necessary effect of the trust, which this will creates in relation to the rents and profits, was to suspend, during its continuance, the absolute power of alienation, but as the trust was to last no longer than until the youngest child of the testator should attain the age of twenty-one years, the suspense, which it involved, was far within the limits which the statute allows. A devise to trustees to receive and apply the rents and profits, during a minority, is not an absolute term of years, corresponding with the possible duration of the minority- but is determined by. the death of the minor before he- attains his age. This construction of such a limitation was adopted both by the chancellor, and the court of errors, in Hawley v. James (5 Paige, 463; 16 Wend. 60), and although i,t is not easy to be reconciled with the English decisions (Boraston’s case, 3 Rep. 19; Taylor v. Biddell, 2 Mod. 289; Stanley v. Stanley, 16 Vesey, 491), it must now be considered as the settled law of the state. Hence, when the trust is to continue during more than two minorities, the limitation is void, since the suspense' of alienation, which it creates, may exceed two of the lives upon which the trust depends ; but when limited to a single minority, it is plainly valid, since the suspense cannot possibly exceed the life of the minor, and by his attaining his age, may be determined at a much earlier period than his actual death. In contemplation of law, the suspense is fora shorter period than the continuance of a single life in being at the creation of the estate (1 Rev. Stat. § 15, p. 723). In the case before us, but one of the children of the testator was under age, at the time of the death of the testator ; and it seems to us that there is no exception from the rule which the Revised Statutes expressly declare, namely, that where an estate is created by devise, the death of the testator shall be deemed the time of its creation (1 R. S. § 41, p. 726). By thus referring to the statute, we are not to be understood as inti mating that such is not also the rule of the common law. It must be admitted that the language of some of the more recent text-writers (Ram on Wills, 6 ; Lewin oh Perpetuities, 170,442) seems to favor the position that an estate by devise is created by the publication of the will, but whether these writers are sustained by the cases to which they refer, is a different question, which we deem it unnecessary now to examine.

To the proposition, that in computing the period of suspense, the lives of the two annuitants are to be added to that of the minor, we cannot assent. The testator plainly intended that the estate of the trustees should cease, when his youngest child should attain his age, since he authorizes them, at that time, to sell the whole of his real estate, with the exception of the house and lot devised to his wife, and divide the proceeds among the children, reserving, however, a sufficient capital for the payment of the annuities. Supposing, therefore, the directions of the will to be followed, there could be no suspense of the power of alienation beyond the term of minority, except as to the capital set apart for the payment of the annuities ; and as it was the duty of the executors to set apart a distinct capital for each annuity, the suspense in each case, if it existed at all, was only during a single life, in addition to the term of minority. As the premises now in controversy could not have formed a part of the capital reserved for the annuities, they were freed from any suspense of the power of alienation, directly upon the expiration of the trust term. As soon as the youngest child attained his age, there were persons in being by whom an absolute fee in possession might have been conveyed.

We observe further, that the argument as to the effect of the annuities in suspending alienation, was founded upon an erroneous construction of those provisions, -which bear upon the question, in the article of “ uses and trusts.” It assumed that the direction to pay an annuity, which is charged upon lands, or the rents and profits of lands, creates an express trust under the third subdivision of sec. 55, and is therefore subject to the prohibitory clauses in sec. 60 and 63 ; but we are clearly of opinion, that this subdivision extends only to the cases in which the whole rents and profits, whatever may be their amount, are to-be paid over, or otherwise applied to the use of, the beneficiary, and not to those in which the sum to be raised and paid over, whether immediately or annually, is ascertained and defined. An annuity, given by a will, whatever may be the direction as to the mode of its payment, is a pecuniary legacy, and hence, when it is charged upon lands, it is only under the second subdivision of sec. 55 that a trust for its payment can be sustained. This question was very fully debated and considered in Hawley v. James, and it is manifest, from the terms of the decree, that the construction we have stated is that which the court of errors finally adopted (16 Wend. p.—).• The annuities, which in that case were sustained, by the express terms of the will, were to be paid by the trustees out of the rents and profits of the lands devised, and had they not been regarded as legacies, assignable in their nature, and therefore imposing no restraint upon the alienation of the lands, the court, instead of decreeing them to be paid, must have declared them to be void. That such must have been the result of a different construction was admitted by nearly all the judges and senators who delivered opinions. We therefore consider the law as settled, that the bequest of an annuity, to be paid by trustees, does not suspend the alienation of the lands upon which it is charged, even during the lifetime of the annuitant, since, by releasing to the persons entitled in remainder or reversion, he may extinguish the trust, or may unite with them and the trustees in conveying an absolute fee to a third person.

The direction, or, more correctly, the permission given to the executors to accumulate the surplus rents and profits during the trust, as the accumulation was for the benefit of adults, as well as of minors, it may be admitted, is void ; but we cannot admit that by this illegality the other provisions of the will are at all affected. The only consequence is, that the children were entitled to the whole income, not merely to such a proportion as the executors might have deemed sufficient for their maintenance and support. The doctrine that an express trust, with all its powers and incidents, is rendered void, by the invalidity of any one of several distinct and independent purposes, for which it is created, we rejoice to say, may now be considered as decisively and completely overruled. (Hone’s Executors v. Von Schaick, 20 Wend. § 564; Darling v. Rogers, 22 Wendall, 483; Irving v. De Kay, 9 Paige 521, 8.) Root v. Stuyvesant is an anomalous case, to be rejected and shunned, not to be followed; as an authority, it ought never to be quoted.

We are not certain that we rightly apprehend the meaning, or intended application, of the last objection to the validity of the defendant’s title, namely, that the power of sale vested in the executors was void, because it is given for the same purpose, for which an express trust is authorized, by the statute. The objection, it is probable, was suggested by some of the observations of Mr. Justice Bronson, in Hawley v. James, but those observations, as we understand them, only .mean that where an express trust, otherwise valid, is held to be void, as involving a perpetuity, it cannot be sustained as a power in trust under section 58 in the article of “ Uses and Trusts and we certainly agree with the learned judge, that, to such a case, the terms of that section do not at all apply. But if we have rightly construed, the provisions of the will, the case before us is not the case to which the observations of Mr. Justice Bronson above refer ; and hence the objection we are considering, so far as it rests upon those observations, has manifestly no application. Had we been constrained to adopt that construction of the will upon which the learned counsel for the plaintiff insisted, namely, that the express trust which the will creates embraced all the estate of the testator, was intended to last during the lives of the two annuitants, as well as during the minority of his youngest child, and during that period' rendered the whole property inalienable, we should probably not have hesitated to say that the power of sale given to the executors was annexed to and must fall with their estate ; but holding, as we do, that the trust term, as created by the will, involved no undue suspense of the power of alienation, and was therefore valid, we are unable to see that there are any grounds upon which the validity of a power of sale to be exercised, at the expiration of the term, or the legality of its exercise, by the surviving executor, can reasonably be questioned. .

It is probable, however, that the objection that the power to-sell was void, as given for the same purpose for which an express trust may be created, was meant to be understood, in a different sense, from that which we have supposed. The meaning may be that a power in trust can never be created for any purpose that may be effected by an express trust; that is, that a power to sell lands for the benefit of creditors or legatees, or for satisfying a charge, is absolutely void, unless the trustee is clothed with an estate, as well as an authority. It would be a sufficient reply to the objection thus stated, that the power to sell, as created by this will, is not given for any purpose which the statute enumerates. The proceeds of the lands when sold, are to be divided amongst those to whom the lands themselves are devised, and their distributive shares are not legacies, but belong to them as owners. It is for the benefit of devisees, not of legatees, that the sale is directed (Patten v. Randall, 1 Jac. & Walk. 189; Bentham v. Wilshire, 4 Mad. 44; Dominick v. Michael, 4 Sand. S. C. R. p. 374.)

The sole object of the power is to facilitate an equal division of the property-which it embraces; and to secure the proper execution of such a power, it is not at all necessary that any estate should be given to the trustee in the lands to be sold. This is no more necessary, where the power is created by a will, than where it is given by a court of justice to commissioners, in a suit for partition ; as it is essentially a power to make partition, it is only as power in trust that it could be granted or exercised.

But we must not limit ourselves to a reply that while it proves the objection to be irrelevant, seems to admit that, if relevant, it would be valid. No such admission is intended to be made, or can justly be made. The position that a power in trust cannot be granted for any purpose for which an express trust is authorized, we are convinced, is groundless, as well as novel. When a trust is created for the payment of legacies, or the satisfaction of a charge, by a sale or mortgage, it rests entirely in the discretion of the testator. whether he will confer an estate, or a mere authority. That he possessed this discretion, at common law, it is impossible to doubt, nor have we discovered a single word in the revised statutes from which the intent of the legislature, to take it away or abridge its exercise, can be inferred. On the contrary, as the article Of Powers,” has imposed no restriction whatever on the creation of powers in trust, it seems a necessary consequence that a trustee may be authorized to perform any act “ in relation to lands or the creation of estates therein, or charges thereon, which the owner granting the power might himself lawfully perform” (1 R. S. p. 732, sec. 74).

We have said all, that the decision of this controversy requires to be said, but there are some further observations in relation to “ Trusts and Powers,” as modified by the revised statutes, which the points involved in this case have suggested, and which, for many reasons, we deem it expedient to add. It is frequently asserted, or intimated, and seems indeed to be generally thought, that the new statutory provisions have prescribed limits to the creation of trusts much narrower than the exigences of society demand, and which must therefore operate, in numerous cases, to deprive meritorious trusts of the security and protection to which, by law, they were formerly entitled ; yet this is so far from being true, that if the term trust be understood, in its general and appropriate sense, as applying to every case, in which a power of control or disposition is given to one person to be exercised for the benefit of another, and if the limitation is so framed as not to involve an undue suspense of alienation, it is certain, that a valid trust may now be created for any and every purpose, for which a trust might have been created, before the revised statutes were adopted. The attempt to define and limit active trusts by an enumeration of all the purposes for which they may be created, would be extravagant and futile; and' so conscious were the revisers of this, that in their notes to the chapter “ Of Real Property,” they expressly said that such trusts from their nature cannot be limited (3d R. S. 2d ed. p. 590). No such limitation therefore could have been intended by them as the effect of the regulations which they proposed.

It is not at all necessary, however, to the preservation of trusts, that a naked title should be vested in one person, when the actual possession, the reception of the rents and profits, and the entire power of disposition and control, are given to another. Nor, in many cases, is it requisite to give to the trustee any estate in the lands, to enable him to execute the powers, or fulfil the duties, which the trust confers or enjoins. Hence the revised statutes have wholly abolished passive trusts, and by enumerating the purposes for which alone an express trust may be created, have limited the cases in which an estate may be given to the trustee, as well as an authority. The supposition, however, that by these changes the power of the owner in the disposition of his property is really abridged, or his intentions in favor of those who may be the object of his bounty, rendered liable to be defeated, is a serious error, which it is time should be banished from the minds of the profession, and be no longer implied in the opinions of judges. The trust, where lands are granted or devised in trust, is, in all cases, either nominal and passive, or real and active. Where it is passive, as where lands are granted or devised to A. to the use of B., or in trust to permit B. to take the possession and receive the rents and profits, although the trust is wholly void, yet by force of sec. 49, in the article of “Uses and Trusts” (1 R. S. p. 722), the intent of the person creating it is fully executed, by giving to the beneficiary a legal estate, of the same quality and duration, as his beneficial interest. When the trust, although not created for a purpose enumerated in the definition of express trusts, is real and active, as where the trustee is empowered to convey the lands upon certain conditions to certain persons, the grant or devise, as passing an estate, is indeed void, but the trust in its substance and reality is fully preserved, and its execution may be enforced, by the same means and with the same certainty} as had a title to the lands been vested in the trustee, as well as a power of disposition. The statute then executes the intention of the grantor or testator, by declaring the trust to be valid, as a power in trust (sec. 58, p. 723), and by this construction the powers and duties of the trustee, and the right and remedies of the cestui que trust, are precisely the same as they would have been had the revised statutes never been passed. The conclusion is, that neither the power of the owner of lands in the creation of trusts, nor the jurisdiction of equity in compelling their execution, although somewhat changed in form, have been in reality abridged ; and it is therefore an unnecessary alarm that the statutory provisions are said to have excited. It is true where a trust, whether an express trust or merely a power, is so framed as to suspend alienation for a longer period than the statute allows, the entire limitation, as in Coster v. Lorillard, and in Hawley v. James, is justly held to be illegal and void, but we state, with entire confidence, that the invalidity of an express trust upon the sole ground that it cannot be referred to any class of those which the statute has alone authorized, can never operate to deprive the objects of the trust of the benefits intended.

In conformity with the views we have expressed, judgment must be entered for the defendant. ' •  