
    Thomson v. Livingston.
    A testator who died in 1825, gave his personal estate to his executors, in trust, to pay out of the income certain annuities, also an annuity to his son for life, and if he should marry and die before his wife, then to pay to her an annuity for her life, and to accumulate the surplus income; and on the death of the son to set apart enough to secure the annuity to his widow, if she survived him, and the residue, (and on her death, the fund set apart, in like manner,) to pay and transfer to all, or such one or more of the son’s children and grandchildren, at such time or age, in such manner, and in such shares and proportions as the son should by his will appoint. And in default of such appointment, then to his children and grandchildren, per stirpes, and if none, to the testator’s brothers and sisters and their issue.
    The son married and died, leaving a widow and two sons, the eldest being only nineteen years of age. By his last will, he directed that half the estate should be kept by the trustees till the eldest son became forty-five years of age, or till his death, if he died under that age, applying the income for his benefit, and on his attaining that age, to transfer the capital to him absolutely. If he died before that, to transfer the estate to his next of kin. The like provision was made for the younger son in respect of the other moiety. Held,
    
    1. That the will of the first testator and the appointment by his son, were to be considered, in respect of the validity of the latter, as if they were contained in the same instrument, and were a single disposition of the estate made at the death of the first testator.
    2. That the appointment was void, because it suspended the absolute ownership of the personalty bequeathed, beyond the period allowed by law before the revised statutes.
    3. That assuming personal property was, before those statutes, analogous in this respect to real estate, the utmost limitation permitted by law, was for a life or lives in being at the death of the testator, and twenty-one years and the longest period of gestation, after.
    4. That the will of the testator, and the appointment combined, tied up the personal property during several specified lives, and for a period of more than twenty-five years after the death of the last life specified. •
    (Before Oakley, Oh. J., and Sanotokd and Paine, J. J.)
    Feb. 18;
    April 19, 1851.
    This was a suit for an account and payment to tbe plaintiff, of a moiety of the personal estate of his grandfather, James Thomson, deceased.
    
      The complaint stated that in or about the year 1825, James Thomson being a resident of the city of New York, departed this life, leaving a large amount of real and personal property, and by his last will and testament, the testator devised all his personal and real estate to his wife Eliza Thomson, as executrix, and his friends, Peter Augustus Jay and Peter W. Eadcliff, as executors, in trust; 1st. To pay out of the personal estate certain legacies. 2d. To collect and receive the rents and profits of the real estate, and to apply the same to the use and benefit of certain tenants for life, and also to support certain other estates therein named. After which, the testator devised all the rest and residue of his personal estate as follows:—
    “ Item. — I hereby direct and declare that my personal estate, bequeathed to my executrix and executors in trust, as aforesaid, and the proceeds of my real estate at Ehinebeck, directed to be sold as aforesaid, shall be held and disposed of by my executrix and executors for the purposes and upon the trusts following, that is to say: in trust first, to pay the legacies hereinbefore bequeathed, and to invest the residue in stock of the United States of America, or in stock of the Bank of the United States, or in bonds and mortgages, and from time to time, to sell the said stock and collect the money due on the said bonds and mortgages, and to re-invest the said money, and to change the said securities, according to their discretion; and out of the dividends, interests, and profits of the said moneys, to pay the said annuities heretofore given and bequeathed; and also, an annuity to my said son James of eight hundred dollars, to be paid to him by my said executrix and executors, every year in quarterly payments, so long as he shall continue unmarried, during the lifetime of my wife. And as soon as my said son shall marry, then to pay to my said son, during the lifetime of my wife, an annuity, or yearly sum of three thousand dollars, to be paid to him every year by my executrix and executors, in quarter-yearly payments. And further, in trust, after the death of my said wife, to pay such sum or sums of money as she may have bequeathed or appointed to be^ paid, by virtue of the power hereinbefore given her, as aforesaid, and not exceeding in the whole twelve thousand dollars; and also, to pay to nay said son James, after the death of my said wife, and during his natural life, an annuity or yearly sum of six thousand dollars, to'be paid to him every year, in quarter-yearly payments. And if my said son shall marry and die before his wife, then to pay to his widow, during her natural life, an annuity or yearly sum of five hundred dollars, to be paid to her every year, in quarter-yearly payments, if she shall, have no children by my said son living, at the time óf his decease; but if she shall have a child or children by him living at the time of his decease, then to pay to her, in lieu of the annuity last aforesaid, an annuity or yearly sum of two thousand dollars, to be paid to her yearly, and every year during her natural life, in quarter-yearly payments. And further, in trust, that if the dividends, interests, and profits of the said moneys shall be more than sufficient for the purposes aforesaid, from time to time, as it shall accrue, to invest the surplus in stock or mortgages, as aforesaid, and suffer the said trust fund to accumulate. And further, in trust, after the death of my wife, and of my said son, to set apart such portion of the said trust fund as will be sufficient to secure the payment of the said annuity to which his widow, if he leaves one, will be entitled, and to dispose of the residue of the said funds immediately, and after «the death of the said widow, to dispose of the part set aside to secure her annuity, as follows, to wit, to pay and transfer the same to all or such one or more of the children and grandchildren of my said son, at such time or age, in such manner and in such shares and proportions, as, my said son shall, by his last will and testament, or by any codicil thereto, direct and appoint. And if my said son shall not make such direction or appointment, and so far as such direction or appointment, if incomplete, shall not extend, then in trust to pay and assign the said trust fund to all and every the child and children of my said son, who shall be living at the time of his decease, or born in due time afterwards, and the children of any and every child of my said son, who shall have died leaving children in his lifetime, the children of such child so dying, taking the same share or proportion wbiob. tbe child so dying would, if alive, be entitled to; and if there be no child or descendant of my said son James who shall survive him, then in trust to pay and assign the said trust money to my said brothers and sisters, and their issue, exactly in like manner as the moneys arising from the sale of my real estate are hereby directed to be paid over.”
    The complaint further stated that all the legacies and charges upon the personal and real estate have been discharged and paid; that the executrix and executors are dead; that Anson Livingston, and James Thomson, the son of the testator, were, by an order of the late court of chancery, made the 17th day of April, 1843, appointed trustees of the last will and testament in the place and stead of the deceased executrix and executors, and the estate, both personal and real, in pursuance of the order, was assigned and transferred to the new trustees.
    That James Thomson, the son of the testator, intermarried with Mary L. Livingston, by whom he had issue, the plaintiff and Henry Livingston Thomson, and no other children, but who were not born in the lifetime.of the testator, but several years afterwards; that James Thomson, the son of the testator, died •in the autumn of 1847, leaving him surviving Mary L., his wife, and his two sons, and that he never had any other wife, or any other children. That the plaintiff further is now of the age of twenty-one years and upwards, but was only of the age of nineteen years when his father died.
    That his father, James Thomson, in pursuance of the powers contained in the will of James Thomson, the testator, executed his will, by which he made the following appointment relative to the personal estate mentioned and devised as above set forth.
    “ Whereas, the said property at Rhinebeck was sold and the proceeds thereof added to the personal estate whereof my said father was possessed at the time of his death, and out of the fund thus constituted, the debts of my father and the legacies bequeathed by said will were paid. And, whereas, there remains of the said fund a considerable sum of money, which is invested in bonds and mortgages and other securities and property, in the name of Anson Livingston and myself, as trustees of the personal estate of my said father, appointed by the court of chancery of the state of New York such trustees under said will in the place of the executrix and executors named in the said will, who are all deceased — Now, I do also by this my last will and testament, in pursuance and execution of the further powers vested in me by my said father’s last will and testament as last above recited, declare it to be my will that the said personal estate of my deceased father, bequeathed to his executrix and executors as aforesaid, upon the trusts above mentioned, and the bonds, mortgages, securities and property of every kind and description in which said personal property now is, or shall be invested, be disposed of for the benefit of my two sons, in manner and form following; that is to say, upon and immediately after my death, I direct that the whole of the said personal property, in case my wife shall not survive me, but if she should, then the whole except such portion thereof as shall be reserved according to the provisions of my said father’s will, to provide fox the payment of the annuity therein bequeathed to hex after my death, and after her death, the portion so reserved, be, together with the securities representing the same, and all vouchers and papers connected therewith, kept and retained by the trustees for the time being under my said father’s will, and disposed of and paid out to and for the use and benefit of my said two sons, in the manner hereinafter specifically declared in relation to the same. 5th ly. I do hereby direct and declare that one equal half part of the said personal property in the preceding fourth section of this my will, mentioned and referred, be held by the said trustees under my said father’s will upon trust for them the said trustees, until my said son James Thomson, Jun., shall arrive at the age of forty-five years, provided that he shall live to attain that age, but if he should not, then until the time of his death, to collect the interest, issues, income, and profits which shall accrue or be derived from the said moiety of said personal estate, and after paying therefrom all charges and expenses connected with the management of the said moiety of said personal estate, to apply the balance and surplus, of such interest, issues, income, and profits, to the use of my said son, James Thomson, Jun., yearly, or every year, until he shall attain the age of forty-five years, provided he shall live to attain that age, and upon the further trust for the said trustees, when my said son, James, shall attain the age of forty-five years, to convey and deliver over the said moiety of said personal estate, and also all the said accumulations of the said moiety, if any there shall be, to my said son James, to have and to hold to him, his executors, administrators, and assigns, forever, absolutely and unconditionally from that period. But if my said son, James, should die before attaining the age of forty-five years, then and in that case upon the further trust for them the said trustees, upon and immediately after the death of my said son, James, to assign and deliver over the said moiety of said personal estate, and also the said accumulations, and to divide and distribute the same between and amongst the next of kin of my said son, James, living at the time of his death, according to the statute of the state of New York, relating to the distribution of the personal estate of persons dying intestate. 6thly. And as to the other equal moiety or half part of the said personal property in the preceding fourth section of this my last will, and mentioned and referred to, it is my will, and I do hereby direct and declare that the same shall be held and disposed of by the trustees for the time being of my said father’s will, upon the trusts following, that is to say, in trust for them my said trustees, until my son, Henry 'Livingston Thomson, shall arrive at the age of forty-five years, provided that he shall live to attain that age, but if he should not, then until the time of his death, to collect and receive the interest, issues, income, and profits, which shall accrue and be derived from the said last-mentioned moiety of said personal estate, and after paying therefrom all charges and expenses connected with the care and management of the said last-mentioned moiety of said personal estate, to apply the balance and surplus of such interest, issues, income, and profits, to the use of my said son, Henry Livingston Thomson, yearly or every year, until he shall attain the age of forty-five years, provided he shall live to attain that age, and upon the further trust, when my son Henry shall attain that age, to convey and deliver over the said last-mentioned moiety of said personal estate, and also all the accumulations of the said last-mentioned moiety, if any there shall be, to my said son Henry, to have and' to hold to him, his executors, administrators, and assigns, forever, absolutely and unconditionally, from that period. But if my said son, Henry, should die before attaining the age of forty-five years, then and in that case, upon the further trust, for them the said trustees, upon and immediately after the death of my said son, Henry, to assign and deliver over the said last-mentioned moiety of said personal estate, and also the said accumulations, and to divide and distribute the same between and amongst the next of kin of my said son Henry, living at the time of his decease, according to the statutes of the state of New York relating to the distribution of personal estate of persons dying intestate.”
    The complaint further stated, that the personal estate is of the value of one hundred and sixty thousand dollars, and is held by Anson Livingston, as the surviving trustee of the estate of the first testator, James Thomson. That he, the plaintiff, claims that the appointment made by his father, James Thomson, is illegal and void, and that he is entitled to his portion of the personal estate in like manner as if his father had died without making any appointment, and that he has demanded the same of the surviving trustee, which he refused to give and assign over to the plaintiff.
    The defendant demurred to the complaint, insisting,
    1st. That James Thomson, the second, the father of the plaintiff, had the right and power, under his father’s will, by law, to make the will and appointment alleged in the complaint to' have been made by him. 2d. That the will and appointment alleged in the complaint to have been made by James Thomson, the second, is a valid will and appointment in law, and the plaintiff is not entitled to the relief sought and demanded by him.
    The cause by consent was referred to Hon. Samuel Jones, late chief justice of this court, as sole referee, to hear and determine the same.
    The referee reported, that the complaint does state facts sufficient to constitute a valid cause of action; that James Thomson, the father of the plaintiff, had no power under his father’s will to make the appointment set forth in the complaint; that the appointment of James Thomson, the father of the plaintiff, set forth, in the complaint, is an invalid appointment and'utterly illegal and void; and that the plaintiff is entitled to the relief demanded in the complaint.
    Judgment having been entered on this report, in favor of the plaintiff, the defendant appealed to the general term. ■
    
      Geo. S. Stitt, for the defendant.
    I. The complaint asks that defendant be ordered to assign to the plaintiff, his portion of the personal estate, the same as though James Thomson the 2d had made no appointment. Is the appointment valid ?
    This question involves two others. 1st, does the appointment 'contravene the intention of the testator, James Thomson the elder ? or 2d, does it create a perpetuity or an unlawful limitation?
    As to the 1st question:
    II. The will gives the power to James Thomson the 2d, to select any of his children or grandchildren as the persons to whom certain funds shall be transferred, and to fix the “ time or age” and “ manner” and “ shares,” &c., when and in which such transfer shall be made.
    III. The appointment in question designates the time or age, by directing the trustee to convey to each son a moiety, when each shall have attained a certain age, (45.) This is the appointment, or clause in the appointment, on which this case depends. The subsequent clause, providing for the contingency of the death of the son of the appointor, has nothing to do with this case. The complaint asks for a present vested right. Now 'as the will of the elder James gives the son unrestricted power as to Eie designation of the age at which his child shall be entitled to a transfer of the fund, the appointment is plainly in accordance with the will.
    IY. To consider the 2d question. Is the appointment illegal, as creating an illegal limitation ?
    In Cruise’s Digest, the rule is laid down in sections 32 to 35 of Oh. 24, Title 32, that a valid remainder may be limited upon an estate for life given to an unborn person, and that a limitation for life to one, and at his death, for life to an unborn person, is good.
    Y. The power in James Thomson the 2d, is a power in gross, and could be barred and extinguished by a fine and other modes of conveyance. (See Sugden on Powers, pp. 71, 73.) Therefore there was not an absolute limitation of the estate, beyond one life in being. We must bear in mind that the will and the appointment are to be construed and governed by the laws in existence at the death of the testator, James Thomson the elder.
    YI. The estate given to James Thomson the 2d was not a mere life estate. The power of appointment given to him by the will, in connection with the life estate, vested in him an interest, different from, and of more value, than the life estate, in the benefits which the exercise of the power enabled him to bestow. (Sugden on Powers, 72.)
    YII. If the clause in the appointment providing for the contingency of the sons not living to the age of 45 years, be bad and invalid, then the sons have a vested interest in the funds in question, and the appointment in question in this case is valid. (Burrill v. Sheil, 2 Barbour’s Rep. 457.)
    . YIII. Where a perpetuity is attempted in a will, the courts will not, if they can avoid it, construe the devise void, but expound the will in such a manner as to carry the testator’s intentions into effect as far as the rules respecting perpetuities will allow.
    This is the doctrine of cy prés. (Bouvier’s Law Diet., Cy prés.) This doctrine applies to wills of personal as well as real estate. (Attorney General v. Baxter, 1 Vern. R. 248; Story’s Eq. Juris. 1169; Inglis v. The Trustees, &c., 3 Peters R. 99; 3 Ves. Jr. 141, Attorney General v. Whitchurch; Gott v. Cook, 7 Paige, 535.)
    
      W. H. Jansen, for the plaintiff.
    I. The appointment of James Thomson, under the will of his father, is bad, because it suspends the power of alienation beyond the period the testator could haye tied up his estate.
    At common law, there could be no limitation of chattels personal, but the gift of them carried the absolute property. (2 Black. Com. 897; 2 Kent’s Com. 352, 420.) But this rule had been so far relaxed, that a limitation over might be made previous to the revised statutes, but such limitations were always more jealously watched than limitations of real estate. The utmost extent to which they had gone was to limit a remainder upon a life estate, although there was a general disposition in the courts to place limitations of real and personal property upon the same foundation, and which since, the revised statutes have done. (Vide Jackson, ex. dem., Livingston v. Robins, 16 John. 585, 586.)
    The position is then taken, that the law relating to the two kinds of estates, which is to govern in the decision of this question, is the same, and is argued upon that assumption. As the testator died in 1825, the law existing previous to the Rev. Stat. will govern in a great measure, if'not entirely.
    By the law, as it then existed, real estate could only be tied up for one or more lives in being, and 21 years and 9 months after the time of the testator’s death. (Cruise’s Dig. vol. 4, page 1.61; 2 Cow. 333.) Assuming that personal property could be limited only in the same way, the testator could only in this case render inalienable the fund during that time — and his son, James Thomson, by appointment, could do no mo re.. But in this case, by the appointment of the son, the estate has been rendered inalienable during the lifetime of the appointor and his mother, and from and after their death, until the plaintiff and his brother arrive at the age of forty-five years, which will be about twenty-six years after the death of the appointor and His mother, in the case of the plaintiff, and of twenty-eight years in the case of the plaintiff’s brother Henry, which is, as before said, a longer period than'an estate at that time could be rendered inalienable. (Routledge v. Dorrell, 2 Ves. Jr. 359 ; 1 R. S. 724, § 65.)
    When a trustee has the legal estate, and there is a duty to perform which would carry the inalienability of the fund beyond the time permitted, the estate in him is illegal and void, and those entitled to it take as if no such term existed. Estates can no more be rendered inalienable through trustees than in any other manner. (14 Wend. Rep. 265; 16 Ibid. 61; 7 Paige, 221, 521, 542; 1 R. S. 723, §§ 60, 68.)
    Whether we consider the law in regard to the legal estate in this fund,- and the power of alienating it by those who hold the legal and equitable estates, either as it existed previous to the revised statutes, or under the revised statutes if they affect the question, the absolute power of alienation has been suspended longer than for one or more lives in being, and twenty-one years and nine months afterwards, and consequently is void. The fact that the sons may die under the age of 45 years, does not alter the case. The possibility of the trust continuing makes the limitation void. (Hawley v. James, 16 Wen. 171; De Barante v. Gott, 6 Barbour, 503; Sugden on Powers, 353.)
    The limitation here is thus: “ To trustees, during the life of my son James, and my widow; then an estate in trust, for years to the unborn sons of my son James, ending when they become forty-five years; then and thereafter, provided they reach the age of forty-five years, I give them the fund in fee; but if they die under the age of forty-five, I give the said fund to the next of kin, living at the time of their death.” Here, then, wre have two life estates — a term of years to unborn children, an absolute estate fixed upon, the contingency of their living out that term, and a further remainder limited to next of kin, provided they do not live out the term of years. The sons get the property and vested interests therein, only provided they become forty-five years of age. Until that time the trustees are directed to keep it. (Coster v. Lorillard, 
      14 Wend. 265, 316, 322 ; Garrick v. Lord Camden, 14 Ves. 372.)
    If the sons do not live to that age, the next of kin take it, not by the law of the statute of distribution, but by power of the appointment. The distribution over to such next of kin, then, not coming by inheritance, through the sons, or by any vested interest of theirs, is a limitation over or contingent estate, and the next of kin take as purchasers and not by the statute of distributions. They take the fund from the hands of the testator, by the appointment of his son James, with his authority. As before said, according to the rule laid down by Sugden, such a limitation upon an estate to an unborn person, is void.
    II. The appointment is also bad, because it gives a different estate to the sons from that directed by the testator. In his will he directs that the trustees shall transfer and pay over the fund to the sons, “ at such time and age, in such manner and in such shares and proportions” as his son James should appoint. Here, then, it is clear that the testator intended the fund should go to the children of his son James, in any event. He intended that there should, immediately upon the death of his son James, be a vested and absolute property in the children who survived him, capable of being transmitted by inheritance or disposed of by will or deed; and for fear that there might be no such children in whom the fee could vest, he limited a remainder to his brothers and sisters, and their children. Instead of this, the appointor has made a new estate; he has created a new trust term. He has directed the trustees to keep the property for a period of years, upon an active trust, and if the plaintiff die under 45 years of age, then to transfer and pay over the fund to his next of kin, living at the time of his death. This is a new estate, a new trust term, given to the trustees, quite different and more extensive than the one given under the will of the testator. The appointor has given the fund, not to the children, but to the trustees. Their interest in the fund is contingent ; until the happening of that contingency, their right is only to the income and profits. Even upon that contingency they do not get tbe fund, tbe estates limited thereupon being void. The estate appointed to the children, on condition of, their attaining the age of 45 years, and in default thereof, the remainder to their next of kin, living at the time of their death,, are contingent remainders, limited upon an estate for years. A contingent remainder cannot bé so limited. (2 Black. Com. 171.) They are also void as being too remote. The remainder, to the next of kin is .void, because it depends upon two contingencies. The one that James Thomson should have sons; the, other that they should die under 45 years of age. (2 Black. Com. 170.)
    As to sustaining the appointment cy prés, see 2 Ves. Jr. 357 Alexander v. Alexander, 2 Ves. 640; and Campbell v. Leach, Ambl. 740.
    III. The appointment is bad, because it is upon condition, which the will does not authorize. (Vide Pawlet v. Pawlet, 1 Wils. 224; Roe v. Dunt, 2 Ibid. 337.) .Here the fund is not left to one merely upon condition, but to both. A life estate might have been given possibly to one, had the remainder been absolutely given to the other. But it is not so left; the fund is given to both, upon condition.
    IY. The appointor undertakes to appoint the whole fund, and yet, but contingent interests are ■ given to the children, which is bad. (Snape v. Turton, Cro. Car. 472; also 1 Vern. 84.) And he has appointed to persons not the object of the power. (1 Atk. 561, 63, 64.)
    Y. The term at “ such time and age,” was intended by the testator to refer to a time or age under 21 years. The term, 21. years and 9 months, must be taken in connection with birth and infancy. (See Sugd. Purch. 2d ed. page 556 and. authorities.)
    It may be proper to suggest to the court, that the real estate of the testator was devised and appointed precisely in the same way as the personal, except that the widow of the appointor has a life estate therein; that it is perhaps of the value of $300,000 ; that it is spread over this city and other places, diminishing in value in some places, though rising in others; and that the suspension of the power to sell, to give leases for any considerable time, and to build upon unimproved or badly improved property, is of great detriment. That, although .in this action the court cannot decide upon that part of the will, yet the principle will be decided.
   Oaklet, Ch. J.,

delivered the opinion of the court, affirming the decision of the referee and the judgment at the special term, on the grounds stated in the syllabus of the case. T^he Chief Justice’s opinion was oral, and accidentally there was no note of it taken when it was delivered. The argument which led the court to the conclusion adopted, is contained in substance in the points of the plaintiff’s counsel.  