
    McSorley and Wife v. Wilson and others.
    November 6, 1846,
    March 27, 1847.
    A testator, having real estate with a trifling personal property, devised and gave the whole to trustees in trust, to receive the rents and profits, to sell the real estate in their exclusive discretion, and to invest, &c. Out of the income, they were to pay an annuity to his mother for her life, and one-third of the net income to his wife during her life. The residue of the income was to be divided into three equal parts ; one of which the trustees were to pay to his son J. during his life, and if J. died childless, then his share was to vest in the testator’s surviving children. Another third of the two-thirds of income, was in like manner to be paid to his daughter A. yearly, for life, with a like provision on her death, childless. The remaining third was to be paid to his daughter M., in case she survived his wife, but not otherwise; and until the wife’s death, was to be paid yearly to her. If M. died first, the income was to go to her children after the wife’s death, and if childless, then to the testator’s surviving children. At any time after the real estate w.as converted, J. and A. were to be permitted to draw out their shares absolutely ; but the time of conversion was to be exclusively in the trustees discretion. At the death of his wife, the third, of which the income was first given to her, was to fall into the residue of his estate; and tfie residue he gave to his children who might be living at the time the same should become payable, and if either were then dead, his share to go to his issue.
    
      Held, that as to two-thirds of the trust estate, the absolute power of alienation, might, (and on the most probable contingencies, would,) be suspended for more than two lives in being at the death of the testator, and the trusts thereof were void. The will was thereupon avoided as to the whole real estate devised in trust.
    The bill was filed December 12th, 1845, by Thomas McSorley and Mary his wife, against Joanna Wilson, Joseph Wilson, and Anne Wilson, to procure a partition of the real estate of which Robert Wilson died seised, and to that end to have the trusts of his last will and testament declared to be void, as well as to set aside the will itself. Joanna W. was the widow and executrix, and Mary McSorley and Joseph and Anne Wilson were the only children and heirs of the testator. The two latter were infants.
    Robert Wilson died October 16th, 1845, leaving a will, dated October 1 Oth, 1845, and a codicil thereto, dated four days after-wards, both of which appeared to have been executed and q.p.~ 
      tested in due form. The disposing part of the two instruments was as follows:
    “ First. I give my household furniture to my wife, that she may use the same as long as she lives.
    
      “ Second. I give to the Asylum for the relief of poor widows and widowers fifty dollars, which I direct shall be paid out of the proceeds of my pew, No. 114, in St. Joseph’s church in the city of New York.
    “ Third. I give and devise in fee simple all my real estate, lands, tenements, and hereditaments, whether in possession, reversion or otherwise, and bequeath the remainder of my personal estate, unto my executor and executrix hereinafter named, upon trust to receive the rents, issues and profits of said real estate, and to recover and get in such personal estate, and to sell and dispose of the said real estate, together or in parcels, if they should deem it proper and expedient so to do, at such time or times, and in such manner, as in their discretion they shall deem prudent; and for that purpose, to execute all deeds or instruv ments or assurances, requisite for the completing the sale of the said real estate, such real and personal estate, and the rents, profits and income thereof, shall be subject to the trusts hereinafter named; that is to say, upon further trust to invest the moneys to arise from the real and personal estate to be sold and got in as aforesaid, after the payment of all lawful debts and the annuity hereinafter bequeathed, in some safe investment in stock, or to loan the same on bonds and mortgages on real estate in the state of New York; with liberty to my executor and executrix to vary and transpose such investments at their discretion; and as to the rents, interest money, or other profit or income to arise from the real estate, or from the said investment, upon trust, first, that my executor or executrix receive the same, and shall pay to my mother, Agnes Brown, an annuity of fifty-two dollars semi-annually, as long as she lives, and her funeral expenses on her decease. Second, that my executor do and shall pay to my wife Joanna, or my said wife shall retain, one-third of the rents, interest money, or other profits or income to arise from said real estate or investment, during her life, whose receipt alone shall be from time to time a good and sufficient discharge from the same, to be enjoyed by her free from the control, debts or engagements of any future husband. And I declare that the provision made by me in this my will is in lieu of and full satisfaction of dower or thirds out of my estate, out of which I have been, now am, or shall be seised, I direct that my said wife shall use and enjoy the premises now occupied by me, as long as she thinks proper to remain in the same, without let or hindrance. And as to the residue of said rents, interest money, or other profits or income, upon further trust, and I hereby direct that my said executor and executrix do divide the same into three equal parts or portions; one portion whereof they shall pay over yearly and every year, to my son Joseph during his natural life, but in case of his death childless, then his share shall vest in my surviving children, to be equally divided between them, or to the survivor, unless such part or share should have been drawn out of my estate pursuant to the privilege hereinafter conferred, and until the said Joseph claims the same, it is my desire, and I direct that his share as it-accrues shall be paid to my wife Joanna, and by her received and placed to his credit. One other third equal part or portion, shall be paid over yearly and every year, to my daughter Anne during her natural life; but in case of her death childless, then her share shall vest in my surviving children, or survivor of them, unless such part or share should have been drawn out of my estate pursuant to the privilege hereinafter conferred. Another third equal part or portion of - the said rent, interest money, or other profits or income, shall be paid over to my daughter Mary, the wife of Thomas McSorley, in case she survives my wife Joanna, but not otherwise, and until the decease of my said wife Joanna, such part or portion shall be paid to, and I hereby give the same to, my said wife Joanna, during her natural life, such payments to be yearly and every year; and after her death, then to my said daughter Mary, and in case of her death, then to her child or children equally; and in case she die childless, then to my surviving child or children. I direct the several shares of my said income so to be paid to my said daughters, shall be free from all marital control or interference whatsoever, and that their several receipts shall b,e a good and sufficient discharge for the same. And I do direct that at any time after my said real estate shall have been converted into money, it shall and may be permitted to my son Joseph, and my daughter Ann, or either of them, to draw out and receive into their own possession or control as their absolute property, their respective shares of my said estate, of which he or she would be entitled to the income as above provided ; and that thereupon the trust herein-before declared as to their respective shares, shall cease; but this privilege shall not be held to extend so far as to enable them, or either of them, to compel my executor and executrix to sell my real estate before they shall deem it prudent and expedient so to do, it being my will that the time of said sale shall be entirely and exclusively at their discretion. I direct, that after the death of my widow, the part or share of which she is to receive the interest during life, as is first hereinabove provided, shall fall into the residue of my estate. And I hereby give and bequeath all the rest and residue of my said estate to my said children, who may be living at the time the same shall become payable, to be equally divided between them, share and share alike, and the issue of any such child who may then be dead, such issue taking his, her, or their parents share. I hereby appoint my wife, Joanna Wilson, and my friend, Nicholas Walsh, executrix and executor of this my will, and guardians of my daughter Anne.”
    Codicil.—“ I, Robert Wilson, the testator named in a last will, dated the tenth day of October, 1845, do hereby make this codicil, to be taken as part of my last will and testament, as follows Whereas, it is my desire to prevent all disputes, controversies, and suits at law or in equity, concerning my said will, and the property therein disposed of; - now, my will is, and I do hereby direct, that if any dispute shall arise between, or on the part of my said children, or either of them, or any other person interested in my will, that such dispute or controversy, if not settled between the parties themselves, shall be finally ended and determined by my executor, without any suit at law or in equity. And I do hereby declare, that if the party or parties shall refuse to accede to this direction, and to abide by .and perform the determination and adjustment of my said executor and executrix, then such party or parties shall receive no benefit or advantage whatever from the property or effects respecting which such dispute or controversy shall arise, but the same shall belong to and become vested in the party or parties so willing to abide by the determination and adjustment of my said executor and executrix, as fully as if the same had been originally so vested, and subject to the same provisions as are contained in my will respecting the share or shares of such last mentioned party or parties. And further, that if my said children, or either of them, or the husband or husbands of such of my daughters as may be married, shall dispute the validity of my last will and testament, or any part thereof, or of this codicil, at law or equity, or shall contest the probate thereof, then such party or parties, or the wife or wives of such husband or husbands, shall, in like manner, receive no benefit or advantage whatever from the provisions of my said will, but the same shall in that event be deemed annulled, revoked, and made void, as to such party or parties, and all his, her, or their right, title, or interest, under my said will, shall belong to and become vested in such other of my legatees and devisees as shall not dispute or contest the same, as fully as if the same had been originally so vested, and subject to the same provisions as are therein contained, respecting the share or shares of such last mentioned child or children.”
    The bill stated that Nicholas Walsh, in the will named as executor, declined to act under the will and codicil, or either of them, or to accept any office or appointment under the same.
    The bill alleged, that the execution of the will was procured by fraud and undue influence, practiced on the testator by Joanna his wife, who was the step-mother of Mrs. McSorley. Also, that the trusts of the will, and the trust estate thereby sought to be created, were void, as being in contravention of the provisions of the statutes respecting the creation of estates in land.
    Mrs. Wilson answered, denying the allegations of fraud and undue influence. No proofs were taken in support of those charges. She also insisted on the validity of the will in every respect. Formal proofs were taken in respect of the infant defendants. It appeared that the testator left a very trifling amount of personal property. The cause was heard on the bill and answers.
    
      T. J. Glover and C. O’Conor, for the complainants.
    I. The trust declared in this will, to receive and pay over the rents and profits, is not a valid express trust.
    If such a trust is a valid express trust, it renders the property inalienable during the continuance of the trust; and so much of the will as authorizes a sale and a distribution of the two shares of Joseph and Ann, is repugnant and void.
    II. If the trust is valid, notwithstanding the defect pointed out in the first point, then, as a consequence of the position just stated, the trust term, if supported, must endure until the end of the lives of the widow and the three children, during all which time the lands would be inalienable. (16 Wend. 69, 117, 118, 122, 164, 165, 173.)
    III. The ultimate remainder by which the residue, after satisfying the life interests, is disposed of, is limited to the children, or their issue who may be living, at the time when such residue shall be payable.
    IY. This consolidates into one mass the whole residue, and fixes one point of time for the distribution of the whole, and directs the distribution to be made among those who may be in life and answer a given description at that time. (1 Sand. Ch. R 338.)
    Y. This distribution cannot take place upon any construction, until the death of Mary McSorley, Agnes Brown the annuitant, and the widow. (14 Wend. 381.)
    The remainder is consequently void, and there should he a decree pronouncing an intestacy, and directing partition.
    YI. There is no personal estate; but if there had been any, the dispositions contained in this will, if permitted to take effect, would suspend the absolute ownership thereof for a longer period than the duration of two designated lives.
    That the remainder, referred to in the third, fourth, and fifth points, is contingent, will appear by the following authorities : 4 Kent’s Comm. 207; 25 Wen. 241; 1 Sandford’s Ch. R. 396, 397, 398.
    A contingent remainder al ways suspends the power of alienation until the remainder vests.
    This remainder, it is confessed, will not vest, until the death of Agnes Brown, the annuitant, and the devisors widow. This is two lives ; the question then arises, whether it will vest before the death of Mrs. McSorley?
    1. The inquiry may be still further narrowed. Did the devisor intend that Mrs. McSorley should receive the income during the residue of her life, in case she survived both the widow and the annuitant ? We claim an affirmative answer; because, 1st. Mary’s income begins at the death of the widow, and it is irrational to infer, that the devisor contemplated that this old mother would survive his young wife. Observe the strange words in which the annuity to the mother is limited; not “ during her natural life,” but “ as long as she lives implying, that she had already passed beyond the limits of “ natural life,” and was living on contrary to all just expectation.
    2d. The income is given to Mary’s separate use, showing the motive to be, to secure her an independent support, and showing an object personal to the legatee, which would necessarily enure during her natural life, or at least during that of the husband. He does not allow her to draw out her share, as he does the other children.
    3d. The legal presumption from an unlimited annuity, is that it is given for life.
    4th. A close examination of the provisions for the income of the several children, will show that they were once all alike in the draft; and that the widow came into Mary’s share by subsequent interpolation. It was in this way that the words “ during her natural life,” became, by the inadvertence of the penman, detached from the gift of income to Mary.
    5th. The gift of income to each of the children, is followed by a limitation of such income in remainder to children of such child, if any, and if none, then over to the surviving children of the devisor. This limitation, be it observed, is of income merely, for the principal is completely disposed of, in absolute property, at the close of the trust, by full and distinct words of investiture and limitation, in the final or residuary devise. As to Mary, the income on her share, which might accrue after her death, in case she died before the widow or annuitant, is limited in like manner, on the event of her death without issue, or on the event of her death with issue ; thus plainly showing, that the gift of income to her, as well as to each of the other children, was a gift for life, or which is the same thing until death. He has provided, or attempted to provide, a means for curtailing their life estates, but he has not made any attempt to cut down hers.
    Where a fund is given to A., after the death of B., the latter takes an estate for life by plain implication. Jarman’s Powell on Dev. 209.
    
      D. B. Ogden, for the defendant.
    The question in this case arises upon the will of Robert Wilson, deceased The complainant contends that the devise of the property in the will, is void under the statute. The objection is, that it ties up the property for a longer period than is allowed by la\V.
    Let us briefly examine this. The words of the statute are: “ every future estate shall be void in its creation, which shall suspend the absolute power of alienation for a longer period than is prescribed in this article,” (§ 14;) “ and such power of alienation is suspended, when there are no persons in being by whom an absolute fee in possession can be conveyed.”
    The next section declares, that the absolute power of alienation “ shall not be suspended for a longer period than during the continuance of not more than two lives in being at the creation of the estate ”
    The question is, whether the devise in this will suspends the absolute power of alienation, for a longer period than for two lives in being at the creation of the estate. In other words, will there be no persons by whom an absolute estate in the property can be conveyed for a longer period than during the lives of the persons in being when this will was made.
    He gives an annuity to his mother, of fifty-two dollars during her life. He gives one-third of the income, after paying that annuity, to his wife during her life; and the residue of such income, he directs his executors to divide in three equal parts. One portion thereof to be paid to his son Joseph, during his life ; and, if he die childless, then to be divided among his other children. Another part or portion thereof, one-third to be paid annually to his daughter Anne, during her life ; and if she die childless, her share to vest in his other children, The other third part or portion, he directs the income thereof to be paid to his daughter Mary, the wife of the complainant, during her life, in case she survives his wife, but not otherwise ; and during the life of his wife Joanna, he gives the income of this one-third to her. After the death of his wife, then he paid to his daughter Mary; and in case of her death, then to her children. If she die childless, then he gives this share to his other children.
    Now let it be supposed, that no absolute alienation of this property can be made during the life of the testator’s mother, (which is by no means admitted,) and suppose the mother and the wife both dead, what is to prevent the property from being imme-: diately transferred ? As to the share of Mrs. McSorley, it is contended by the complainant, that it was intended that she should enjoy the income of her portion only daring her life, and the principal, therefore, cannot be disposed of until after her death, which would, it is said, render the property inalienable on the three lives of the mother, the wife, and Mrs. McSorley.
    Now if this be true, it would only affect the portion of Mrs. McSorley, the other two shares could in no manner, be affected by it. But the provision in the will is, that after the death of' Joanna his wife, this share is to go to his daughter Mary, for her own separate use ; if she be dead, then to her children ; if she leave no children, then to the other two children of the testator. If the words carry nothing but the income, then it would follow, that nothiug but income would go to the children of Mary, if she was dead. The words are the same in both cases.
    But it is contended, that the life of the mother, she having an annuity only, did not make the property inalienable during her life ■; she could at any time have released or discharged the eg, tate from the annuity. If this be so, then there would be only the two lives of the wife and Mrs. McSorley.
    We contend, that the trusts in this will are no violation of any provisions contained in the revised statutes.
   The Vice-Chancellor.

The whole real estate is devised in trust, and if, by the limitations grafted upon the trust, the absolute power of alienation may be suspended for more than two lives in being at the testator’s death, the devise is void. (Hawley v. James, 16 Wend. 61; Thompson v. Carmichael’s Executors, 1 Sandford’s Ch. R. 387.) The validity of the trust will therefore be properly tested by the inquiry whether, on any supposable contingency, it may continue beyond two such lives.

The first gift from the trust fund, is the annuity to Mrs. Brown for life. This is an inalienable trust interest, and requires the estate to continue in the trustees while she lives. (Hawley v. James, 16 Wend. 117 to 119 ; 121, 122 ; 164, 165; 173, 174.)

Next in order, is the devise of one third of the net rents to the testator’s wife for life. As she is the trustee, as well as the beneficiary, she must be deemed to take an absolute legal estate in this provision. (Mason v. Mason’s Executors, 2 Sandf. Ch. R. 432. But this does not affect the question, because her life is to elapse before it can be ascertained who will be entitled to the residuary estate. Her life, is therefore, to be taken into the account, and with that of Mrs. Brown, it exhausts the limit which the law has assigned to the suspense of the power of alienation.

Then, as to the remaining two thirds of the rents and profits, after paying the annuity. The testator divides this remainder into three equal parts. One part of the income is to be paid to Joseph, during his life.

Now, let it be supposed that Joseph has survived both Mrs. Brown and Mrs. Wilson. The trust must still continue while he lives, unless the trustees, who are, in that respect, vested with an uncontrollable discretion, (Bunnerr v. Storm, 1 Sandf. Ch. R. 357;) shall have sold the real estate, and Joseph received the two ninth parts, absolutely, as permitted by the will. But, inasmuch as he could not receive any part of the estate, absolutely, until after the conversion of the lands devised, and as that conversion was purely discretionary, it is perfectly obvious, that by the terms of the will, the trust, as to two ninths of the real estate, might continue through the life of Joseph, after the death of both Mrs. Brown and Mrs. Wilson. The same argument applies to the two ninth parts, of which, the income is given in the first instance, to the testator’s daughter, Ann.

The remaining two ninths, is subject to the same observations, in the event of Mrs. McSorley surviving Mrs. Wilson. She would, then, receive the income during her life, and the trust would continue for that purpose.

Thus, it appears, that as to two thirds of the trust estate, the absolute power of alienation may be suspended, and, on the most probable contingencies must be suspended, for more than two lives in being, at the death of the testator.

The third part, out of which Mrs. Wilson’s income is made payable, is, upon her death, devised directly and absolutely ; so, that the suspended power revives after the lapse of the two lives first named. The trust, in respect of this portion of the property, is, therefore, unobjectionable; but the remaining trusts being void, it cannot be upheld without doing injustice to the parties, and must fall with the principal devise.

There must be a decree, declaring the will void as to the real estate, and directing the usual reference in partition cases.  