
    Brewster and others v. Brewster.
    April 25 ;
    
    Aug. 24, 1846.
    Where by the terms of a devise and bequest in trust, to pay over the income to the testator’s son, it was provided that if he should die, or in any way cease to be personally entitled to the same, it should go to his children; it was held, that a voluntary alienation by the party first entitled, vested the trust estate in his children, although the alienation was made for the avowed purpose of so vesting the property.
    Upon the termination of the interest of the son who was the first beneficiary in such a trust, it was provided that the income should be paid to his wife ; so long as she should live and be personally entitled to the same, and no longer ; and whenever they both should in any way cease to be entitled to the income, the entire fund should go over to and vest in the children of the son, and the issue of such as should be dead. The son died, and his wife, for the express purpose of terminating the trust, released and conveyed to his children, all her interest in the trust es ate :
    
      Held, that the whole property thereby became vested in such children.
    Also held, that in a bill for an account and payment against the trustee, the issue in esse of such children, were necessary parties.
    The bill in this cause was filed by Sturges Lewis Brewster, and George B. Kissam and Lucy A. his wife, and set forth, that Caleb Brewster, formerly and at the time of his death, of the town of Fairfield and State of Connecticut, was at the time of making his last will and testament, and at his decease seised and possessed of a considerable real estate situate in the County of Herkimer and elsewhere in the State of New York, and was also possessed of some personal property. That on the 25th day of February, 1825, he made and executed in due form of law, for devising real and personal estate, his last will and testament, by which, after directing the payment of his debts, and after making certain legacies to his wife Anna Brewster, and to his daughter Sally Brewster, and to his grandson Caleb B. Hackly ; directed, that all his estate both real and personal in what state or place soever the same might be, should be divided into four parts equal in value, and one-fourth part thereof he devised and bequeathed to his son Sturges Brewster in trust, in these words, viz:
    “ Sec. 8. Next, I give, devise, and bequeath to my said son Sturges Brewster, subject to and chargeable with one-fourth of said legacy to said Caleb B. Hackly, one other fourth part of the said four parts of my estate ; and the real estate contained in said fourth part shall be designated and set off by metes and bounds, by the same persons before referred to; and the said fourth part thus given to my said son Sturges, he is to hold in trust for the following uses, intents and purposes, namely; the said Sturges Brewster shall use, occupy and improve, the same both real and personal, in such manner as shall be most for the benefit and value thereof, and the clear profits and products of the same, after deducting all necessary charges and expenses incident to the management thereof, he shall account for and pay over to my son, Jonathan L. Brewster, for so long a time as the said Jonathan shall live and be personally entitled to the same and no longer; but if he shall die, or in any way cease to be personally entitled to the same, my will is that two-third parts of said profits and products thereof, which shall thereafter accrue, shall be paid to the children of said Jonathan, and their'issue, or to their legal guardians respectively, in equal parts respectively, the issue of any child to be entitled to such part as such child would be entitled to if living ; and the other third thereof to the present wife of said Jonathan, to her sole and separate use, so long as she shall live and be personally entitled to the same and no longer; and whenever neither the said Jonathan nor his said wife shall be living, or whenever they both in any way cease to be entitled to any part thereof, the said fourth part shall go over to, and vest equally, in the children of the said Jonathan, and the issue of such as shall then be dead, the issue to have such part as the parent of such issue would be entitled to if living; and thereupon the trust hereby vested in said Sturges, shall thereafter cease and determine; and if there be no issue of said Jonathan then living, the said fourth part shall enure to and follow such of the bequests, devises, and trusts, herein made and declared of the said other three-fourths of said residue of my estate as relate to any of my issue then living.”
    After this, there was a devise of another fourth to Sturges Brewster, in trust for a daughter of the testator; and several bequests and directions.
    The fifteenth section of the will was in these words:
    “ Sec. 15. Next, I hereby direct, that, if the said Sturges Brewster, my trustee, as aforesaid, he disposed to sell said two fourth parts thereof, and convey the same in fee simple, or any less estate, and to invest the avails in bank stock, canal stock, or any other safe stock, he is hereby fully authorized to do the same, and the stock in which he shall invest the avails of such sale or sales, shall be and remain for the same uses, trusts, bequests, devises, limitations and purposes as the property so sold was subject to.”
    The testator then appointed Sturges Brewster to be the executor of his will.
    The bill further stated, that Caleb Brewster died, on the thirteenth day of February, 1827, leaving him surviving his wicU ow and his sons, Sturges Brewster and Jonathan L. Brewster, his two daughters, and a grandson by a deceased daughter.
    That the widow of the testator departed this life in August, 1833; and that Jonathan L., the son of the testator, departed this life on the 27th day of October, 1836, leaving him surviving, his widow, Clarina Brewster, and three children, his only heirs at law, viz.: the complainant Sturges L. Brewster, Benjamin Brewster, and the complainant, Lucy A. Kissam, who, on the eighth day of August, 1843, intermarried with the com- „ plainant, George B. Kissam. That Benjamin Brewster, on the eighth day of January, 1844, departed this life intestate, without leaving a widow or any issue. That, as Sturges Brewster has informed the complainants, he has sold and disposed of the real and personal estate so devised and bequeathed to him in trust, under the eighth clause of the will, and that there is now remaining in his hands between four and five thousand dollars, as the net proceeds thereof.
    That Clarina Brewster, the widow of Jonathan L. Brewster, as party of the first part, made and executed, under her hand and seal, and delivered to the complainants, as parties of the second part, an instrument in writing, dated the fifteenth day of January, 1845, in which Sturges Brewster is named as the party of the third part; and which, after reciting at large the eighth section of the will, and also reciting the death of Jonathan L. Brewster, his heirs, and the death of his son, Benjamin, proceeded as follows :—■
    “ Now this indenture witnesseth, that the party of the first part hereto, for the purpose of terminating and putting an end to the trust created by said will, and enabling the said party of the third part to pay over to and divide among the said parties of the second part, the property so held in trust under the eighth section of said will, and for and in consideration of one dollar to her in hand well and truly paid, has bargained, sold, assigned, transferred, and set over, all her right, title, and interest, income, claim, or demand, which the said party of the first part now has, or hereafter may have, under any section or provision in said will, to the parties hereto of the second part; to have and to hold the same to them, their heirs, executors, administrators or assigns, forever.
    “ And for the more effectually accomplishing a termination of said trust, and for the consideration and purposes aforesaid, the said party of the first part hereby releases to the said parties of the second part, all claim to the income, profits, and products devised to her by said will, and hereby ceases to be entitled to any part thereof; and the said party of the first part doth hereby release, quit claim, and discharge the said party of the third part, his successors, executors, administrators, or assigns, of and from all claim which she may have by reason of any section or provision in said will contained.”
    The bill further stated, that this instrument was duly proved before a commissioner, and was then tendered or shown to Sturges Brewster, and a request then and there made to him, that he would account to and with the complainants, for the amounts which had come into his hands as trustee and executor, and would pay over and transfer to them the property or assets which had come into his hands as such trustee. That he declined to comply with such request under various pretences, and among others, under the pretence that notwithstanding the provisions and directions, of the will and the execution of such instrument by Clarina Brewster, the -complainants are not entitled to the proceeds of the property hereinbefore referred to ; he, Brewster, alleging, (and which the complainants admit to be the fact,) that they have each .of them children, and also, that there are other relations of the blood of Caleb Brewster ; and that, notwithstanding the instrument executed by Clarina Brewster, the right to such proceeds has not vested in the complainants, but that, on the death of Clarina B., the pro ceeds, or-the' right thereto, may vest in other persons besides the complainants, and that, therefore, hecannot safely pay the same over to them, without the order and direction of this court. ■ - :
    .The bill prayed that Sturges Brewster might be compelled to account, and to pay over to the complainants, all such sums of money and property, which upon such accounting, should be found to be due them from him, as trustee under the eighth section of the will.
    The defendant demurred to the bill for want of equity, and because the children of the complainants, and their other relatives of the blood of the testator, were not made parties to the suit.
    The demurrer was referred by the Chancellor, to the Assistant Vice-Chancellor for hearing.
    
      E. Paine, for the defendant, in support of the demurrer, argued the following points:
    I. The remainder limited upon the determination of the trust estate, is an executory devise. (Glanville v. Glanville, 2 Mer. 38; 1 Powell on Dev. 223.)
    II. Neither of the events upon which the remainder is to vest, and the trust estate determine, as provided by the will, has occurred. (Lear v. Leggett, 2 Sim. 479.)
    III. This court will not allow the cestui que trust of the particular estate, by her own act purporting to have that object in view, to defeat the executory devise limited to take effect at her • death, and give effect to a remainder limited to take effect on a previous contingency. (1 Sanders on Uses and Trusts, 342; Willis on Trustees, 122,123; Fearne on Exec. Dev. 418.)
    
      E. Sandford,
    for the complainants, cited Bryan v. Knicker-backer, decided by the Chancellor, April 9, 1846 ; Graves v. Dolphin, 1 Sim. 66; Green v. Spicer, 1 Russ. & M. 395; Piercy v. Roberts, 1 M. & K. 4; Lewes v. Lewes, 6 Sim. 304, and note ; Snowden v. Dales, 6 ibid. 524; Brandon v. Robinson, 18 Ves. 429 ; Hallett v. Thompson, 5 Paige, 583,
   The Assistant Vice-Chancellor.

The testator gave one-fourth of his estate to the defendant, in trust to improve it and receive the rents and profits, and pay over the same to Jonathan L. Brewster, so long as he should live and be personally entitled to the same and no longer. On his death or ceasing to be personally entitled, two-thirds of such income were to be paid to his children and their issue, and the other third to his wife for her sole use, so long as she should live and be personally entitled to the same and no longer. And whenever neither Jonathan L. nor his wife should be living, or whenever they both in any way ceased to be entitled to any part of the income, the fourth part of the estate was to go over and vest equally in the children of Jonathan, and the issue of such as should be then dead, and the trust should then cease. If there were no issue of Jonathan living, the fourth part was to pass to others, with the residue of the testator’s estate.

Jonathan L. Brewster died in 1836, and his widow on the 15th of January, 1845, executed a conveyance to their surviving children, of all her right and interest under the will, with a release of her claim to the income under the same. The object avowed in the instrument, is to put an end to the trusts of the will, as to the fourth part of the estate.

The surviving children, who if the trust is terminated, are in-titled to the fourth part, filed this bill against the trustee for an, account and a transfer of the property to them.

The trustee demurs for want of equity and want of sufficient parties.

The first point made against the bill, is that the devise oyer to the children is an executory devise, and not a remainder. I do not deem it material to decide as to this, because in either view of the question, the complainants must first show that the trust has ceased, and if it have ceased the complainants are the parties entitled, whether the estate be a remainder or an executory devise.

The defendant next insists that neither of the events has occurred, upon which the property was to vest in the children of Jonathan L. Brewster.

He contends that the provision of the will relative to the widow’s ceasing to be personally entitled, was aimed at creditors exclusively, and that the property would not be divested, except when seized by creditors, or conveyed upon an assignment in insolvency or bankruptcy. That there is no prohibition against her alienating the income, in any manner she should think proper. The case of Lear v. Leggett, 2 Simons, 479, was cited as sustaining this argument. There the provision declared that the property should not be subject to any alienation or disposition by the beneficiary for life, and if he should alienate, or attempt to alienate, it should operate as a forfeiture of the provision, and the same should devolve upon the person next in expectancy, it was held that on the beneficiary’s becoming bankrupt, his assignees were entitled to his life interest. (1 Russ. & Mylne, 690, S. C.) This case differs from Dommett v. Bedford, 6 T. R. 684, and 3 Ves. 149, where it was held the assignees were not entitled, in the circumstance that by the will in the latter case, the annuity was to be paid to the annuitant alone, and upon his receipt and no other. In Graves v. Dolphin, 1 Simons, 66, the assignees took the annuity, there being no positive forfeiture and no disposition of the fund over, in such a contingency.. The case of Brandon v. Robinson, 18 Ves. 429, turned on the same circumstance.

All the cases agree, that if a provision be made for divesting the bequest or devise in the event of bankruptcy, or in case of its alienation or an attempt being made to alienate it, the property will be divested on the happening of such event. In some of the cases, one mode of forfeiture was provided, and in some the other; and where but one of them is pointed out, the testator’s design of benefitting the objects of his bounty, is sometimes defeated by the contingency against which he has omitted to guard.

From, the language of this will, I infer that the testator intended to provide against every contingency by which the tenants for life of the income might cease to become entitled to its personal enjoyment. A voluntary alienation of such an estate, is often caused by the improvidence of its owner; equally so, if not as frequently, as in the instances of seizure by creditors or insolvent assignees. The provision here is, that whenever Jonathan and his wife, in any way, ceased to be entitled to any part of the income, the estate of the children should take effect. Jonathan ceased to be entitled by his death, and his widow by her alienation of her interest.

It is however urged that she could not make a valid conveyance, and further that the court will not allow the beneficiary of a particular estate by his own act, having that object in view, to defeat the executory devise limited to take effect at his death, and to give effect to one limited on a previous contingency.

As to the latter proposition, if one or the other of the future estates can be accelerated by the act of the owner of the particular estate, it must be by force of some power or provision in the will or deed creating the estate. The court can neither confer the power, nor withhold it where it is granted by the donor. If the beneficiary be clothed with that control over the period of vesting the future estates, either in interest or in possession, it seems more reasonable to give the effect to his intentional act, than to one which was fortuitous. In this instance, the testator conferred the power, by the provision that the future estate should take effect, on a contingency which might be the result of a voluntary act of the beneficiary for life, as well as of a dispossession of the particular estate through improvidence or misfortune. I can perceive no good ground for believing, that he had in view the latter event, any more than the former.

As to the inability of Mrs. Brewster to make a valid conveyance, I cannot agree with the defendant’s counsel. She had an absolute control over the third part of the income, so long as her estate continued. (See Hallett v. Thompson, 5 Paige, 583 | Bryan v. Knickerbacker, before the Chancellor, April 7, 1846, 6 Barbour’s Notes of his decisions, p. 3, .) Her conveyance was operative to pass any income then accrued; and although it could convey no future interest under the trust,'the deed would be effectual against her, should she after its delivery, set up a claim to the income.

The objection that nothing passed by the transfer, and so it was nugatory and did not interfere with her enjoyment, might "be made in every case where alienation is declared to be a for- ' feiture of the interest. In Lewes v. Lewes, 6 Simons, 304, under a similar provision, the interest was held to be defeated by the attempt to assign it.

“■Ceasing to be personally entitled,” under this will, was doubtless a consequence, anticipated from a state of facts, as the defendant’s counsel argued. But a voluntary conveyance is a state of facts leading as directly to that consequence, as any that can be mentioned. I am satisfied that it was within the intention of the testator, as declared in the will, and that the event has arisen upon which the trust was to cease.

The demurrer also presents the question of parties. I think the objection is valid, to the extent of the children in esse of the complainants. They are the persons who are presumptively next entitled to the succession, if the defendant’s construction of the trust be correct. The cause was so fully and so well argued by the defendant’s counsel, that I felt no hesitation in passing upon the question involved, as the bill now stands. Still, the proper parties must be presented, before a decree can be made on the construction of the will. The cause may stand over for that purpose.

Demurrer for want of parties allowed in respect of the com. plainant’s children. Residue of the demurrer overruled. Leave to the complainants to file a supplemental bill to make the nesary parties. 
      
      
         Now reported in 1 Barbour’s Ch. Rep. 408.
     
      
       The children of the complainants, were made parties defendant; and subseseqnently, Mr. Sandford as Vice Chancellor, made a decree in "accordance with this decision. • ■ ■ ■■
     