
    Tucker v. Tucker et al.
    
    
      Power in Trust. — Revocation of devise.
    
    An executor does not take an estate, by implication, in the lands of his testa-tator, when the duties enjoined on him can be performed under a power; especially, where, by construing it to be an estate, the devise would be void, as illegally suspending the power of alienation.
    The revocation of a devise, by the substitution of an illegal trust, is invalid and inoperative.
    * Apte at. from tbe general term of the Supreme Court, in the first district, where a decree of the special term, in a suit for the construction of the will of Gideon Tucker, deceased, had been modified, and the bill dismissed. (Reported at special term, 5 Barb. 99.)
    This was a bill in equity, filed by Gideon J. Tucker and Joseph C. Tucker, for the construction of the will of their grandfather, Gideon Tucker, deceased; alleging that it created a trust in the executors, for a term not-allowed by law, and illegally suspended the power of alienation.
    On the 8th August 1838, Gideon Tucker executed his last will and testament, so as to pass real and personal estate, and died in April 1845, leaving surviving a widow, three sons, two daughters and two grandsons, his heirs-at-law.
    By his said will, the testator devised to his widow, the use, rent and income of his dwelling-house, during life or widowhood, and directed that all taxes and assessments thereon should be paid by his executors out of the estate, until the premises should pass to the devisees in remainder; he also gave her an annuity of $1500, during widowhood, which he charged on eight houses and lots in White and Chapel streets, in the city' of New York.
    He devised two of the houses in Chapel street to his grandsons, John and William, the children of his son, Moses Tucker, during their joint lives, and if either died without issue, then to the survivor for life; *upon the death of either, or both leaving issue, then to such issue, and their heirs and assigns for ever, so much of the said premises as their father had a life-estate in, whilst living; upon the death of both, only one leaving issue, then both houses to such issue in fee; but in case of the death of both, without issue, then over to his four children, George, Mary, Sarah and Charles. 'To Gideon and Joseph, the children of his son, John C. Tucker, deceased (the plaintiffs in this suit), he devised the two other houses in Chapel street, with remainders over, in similar language. '
    By the fourth clause of his will, the testator devised his four other houses -and lots, to his four children, George, Mary, Sarah and Charles; one to each of them in fee; adding — “ But it is my will, that neither of the above-mentioned eight houses and lots shall pass to the possession or use of the aforesaid devisees, or either of them, until the expiration of one year from the death or marriage of my said wife.”
    The seventh clause of the will, which raised the question litigated in the case, was as follows: “ I do authorize and empower my executors, to exchange, sell and convey to and with adjoining owners or others, such gores, strips, or pieces of land, as 'they may deem advantageous to my estate, by straightening and equalizing boundary lines, and to execute, deliver and receive sufficient deeds therefor. And I also authorize my executors to rent and lease houses and lands, and to collect the rents; to cause all needful repairs to be done; to pay all taxes and assessments; and to effect insurances on the buildings, from time to time; and to cause all surplus moneys (if any) over and above the uses before specified, to be, from time to time, divided and paid over to my four children, George, Mary, Sarah and Charles, in equal parts, until a final division and settlement of my estate.”
    The testator devised the residue of his estate to his four married children, and their heirs, and to the survivors, if any of them should die without issue. And by a codicil he ^revoked the devises to his son Charles, and gave his share of the estate to his son George, in trust, to receive the income thereof and apply it to the use of Charles, during his life, and upon his decease, to convey the same to his children, and in case of his death, without children, to his heirs-at-law, in fee. The will and codicil were duly proved, and letters testamentary issued to George W. Tucker, one of the executors.
    The cause was brought to a hearing, at special term, before EBmoNds, J., upon a master’s report, finding the facts as set forth in the bill; *and a decree was made declaring that the seventh clause of the
    will created a trust, which was illegal, as suspending the power of alienation, beyond the time allowed by law; and because the purposes were not such for which an express trust might be created; that the testator died intestate as to the rents and profits of the eight houses devised by the will, from the death of the testator, until one year after the death or marriage of the widow; that the ultimate limitation over, contained in the codicil, was void, as illegally suspending the power of alienation; and that the other devises and bequests were valid.
    On a rehearing at general term, this decree was reversed, so far as it declared void any of the provisions of the original will, and that the testator died intestate as to any part of his estate. The trust declared by the codicil was held to be void, as to the ultimate 'limitation of the property devised *to the grandsons, for the reasons assigned; but that the attempted revocation of the limitation to Charles, by the substitution of an illegal trust, was invalid and inoperative; and the will and codicil were, in all other respects, declared to be valid; and the bill was dismissed; whereupon, the plaintiffs took this appeal.
    
      O’Conor, for the appellants.
    
      Bidwell, for the respondents.
   Foot, J.

The appellants, who are two grandsons and heirs-at-law of the testator, and do not share in the distribution of the rents, until the final division of the estate, claim that the executors take a trust-term under the will, and then that such term is void, and consequently, that the testator died intestate as to the rents, and that they must, therefore, be divided equally among .the heirs-at-law, instead of being divided among the four children as directed in the will. If there is no trust-term, created by the will, then this chain of consequences falls to pieces, and the clearly-expressed intent of the testator is not defeated, by its violation of any rule of the law.

In my opinion, the will does not create a trust-term in the executorsit certainly does not, by express words. Then, do the purposes of the will require- the legal estate to be vested in the executors, or, in other words, does the will give any directions to them, which cannot be complied with, or enjoin upon them any duty, which cannot be performed, without their being invested with the legal title? After a careful examination of the will, I see no direction given to the executors, nor duty enjoined upon them, nor purpose to be accomplished by such direction, nor duty which cannot be fully met and effected, under a power. (1 R. S. 732, § 74; Id. 735, § 106.)

*In the case of Brewster v. Striker (2 N. Y. 20), and which the counsel for the appellants supposes controls the present case, the provisions of the will not only showed, in the opinion of the court, that the testator intended to give “ the entire and exclusive possession, charge and management of the real estate” to the executors; but by the clause, that “the said real estate shall not, at any time hereafter, be sold or aliened, but by my said executors and the survivor of them,” also intended, “to withhold from the grandchildren the power of sale, and thus prevent the alienation of the estate, or any incumbrance thereon, until the inheritance should finally vest in fee-simple absolute, under the limitations of the will;” and this could not be accomplished, unless the title vested in the executors. Hence, there was, in that case, a necessity for holding, that a trust-term vested, by implication, in the executors, which does not exist in this case. In that case, too, the implication accorded with, and effectuated the intention of the testator; but if it prevails in this one, it defeats such intention. Without however adverting to other grounds, I am satisfied, that on the one already stated, the judgment of the supreme court should be affirmed; but without costs to either party as against the other.

Rugóles, C. J.

The first objection raised by the executors to a reversal of the decree of the supreme court dismissing the bill, is, that the complainants had no right to call on the court of chancery for a construction of the will. The executors, claiming an interest in the real estate under the trusts, purporting to be created by the testator, might clearly have filed a bill for that purpose; but it is said, that the right is not reciprocal, and that this court should affirm the decree of the supreme court, without passing on the questions decided there, in relation to the construction of the will, and on the ground that that court had no jurisdiction.

The case does not show that the question of jurisdiction was raised in the supreme court, either at the special or general term. At the special term, the decree in regard to the construction of the will, was in part favorable to the complainants, and in part to the defendants. The defendants brought only a portion of it before the general term for review; availing themselves in part of the construction which was given to the will, at the special term. At the general term, the defendants took a decree, not merely for a dismissal of the bill; hut a decree declaring the construction of the will favorable to themselves. The defendants, therefore, did not raise the point, or did not adhere to it, that the bill ought not to be entertained; and they ought not, therefore, now to insist upon it.

Upon the construction of the will, the principal question is, whether the testator attempted to give to his executors a trust-term in his eight houses and lots in Chapel and White streets, to continue until the expira: tion of one year after the death or re-marriage of his widow? and if so, whether he created a valid trust?

By the second clause in his will, the testator charges these eight houses with an annuity of $1500, to be paid to his wife, during her lifetime, or so long as she continues his widow. By the third clause, he devises two of those houses to John and William, his grandsons, with certain limitations over, and two more to his grandsons, Gideon and Joseph, with similar limitations. By the fourth clause, he devises the remaining four to his children, George, Mary, Sarah and Charles, that ie to say, one lot to each. Thus far, the testator uses apt words, to devise the legal estate, entirely free from any trust; and if this part of the will is to be interpreted by itself, no doubt can exist in regard to its effect. *But the testator proceeds in the fourth clause to say — “ But it is my will, that neither of the above-mentioned eight houses and lots shall pass to the possession or use of the aforesaid devisees, or either of them, until the expiration of one year from the death or marriage of my said wife.”

By the seventh clause, after having empowered his executors to exchange with adjoining owners, such gores and strips of land, as they might deem advantageous for straightening boundary lines, he proceeds — “ And I also authorize my executors to rent and lease houses and lands, and to collect the rents; to cause all needful repairs to be done; to pay all taxes and assessments; to effect insurances on the buildings, from time to time, and to cause all surplus moneys, if any, over and above the uses above specified, to be, from time to time, divided and paid over to my four children, George, Mary, Sarah and Charles, in equal parts, until a final division and settlement of my estate.”

These passages, although standing apart in the will, have evident connection with each other. The possession was taken from the devisees, for the purpose of being given to the executors; and this purpose is abundantly manifested, by the power of actual disposition and management, which he confers upon them by the seventh clause above quoted. The power of leasing and collecting rents, necessarily includes the power of putting in and putting out the tenants; and the right of possession is also necessary for the purpose of making repairs. Taking the two clauses together, they are sufficient to vest the trust estate in the executors, by implication, provided the trust is legal with respect to its duration. (Leggett v. Perkins, 2 N. Y. 305; Oates v. Cook, 3 Burr. 1685; Doe v. Humphrey, 6 Ad. & E. 206; Bradley v. Amidon, 10 Paige 235; Fletcher on Trustees 1-9; Brewster v. Striker, 2 N. Y. 31.)

A trust to receive rents and profits of real estate, and to pay them oyer to the beneficiaries, is valid, within the provisions of the statute of trusts. (1 R. S. 728, § 55, sub. 3; Leggett v. Perkins, 2 N. Y. 297, 306.) Such a trust is inalienable. The 63d section of the same statute renders the beneficiary incapable of assigning or disposing of his interest ip. the trust; and the 65th section makes void every sale or conveyance by the trustee, in contravention of the trust. (1 R. S. 730.) The 15th section of the act concerning the acquisition, the enjoyment, and the transmission of property (1 R. S. 723), forbids the suspension of the absolute power of alienation of real estate, by any limitation or condition whatever, for a longer period, than during the continuance of not more than two lives in being, at the creation of the estate. The power of alienation is suspended, when there are no persons in being by whom an absolute fee in possession can be conveyed. (1 R. S. 723, § 14.) Trust estates are within the operation of these sections (Coster v. Lorillard, 5 Paige 218, and s. c. 14 Wend. 305), and the consequence is, that if, by the continuance of the trust, the power of alienation is, or may be illegally suspended, the trust is void, and everything dependent upon it is void.

In Hone’s Executors v. Van Schaick (20 Wend. 564), in the court for the correction of errors, it was declared, that every estate is void in its creation which is so limited that the absolute power of alienation may be suspended for more than two lives in being, at the creation of the estate. The lives must be designated, and life must in some form enter into the limitation; no absolute term, however short, can be maintained.” A single year may be longer than any life which could have been named by the testator, and the creation of a trust-term for that period is therefore forbidden. The trust, in the present case, was to continue until the expiration of one year from the death or marriage of the testator’s wife, and must, therefore, be declared void.

It was suggested on the argument, that the parties interested could, at any time, have put an end to the trust, by a * division and settlement of the estate • J ’ but I think, this is not so. The trust was to continue as long as the devisees were to remain out of the possession, by the direction contained in the fourth clause, that is to say, until the expiration of a year after the death or marriage of the widow; and the division and settlement spoken of in the seventh clause, was not to take place until then. An earlier release or conveyance by the executors, would have been in contravention of the trust.

We are then to inquire, what becomes of the interest in the eight houses and lots, which the testator attempted, ineffectually, to devise in trust ? Did it pass to his four children, George, Mary, Sarah and Charles, under the residuary clause in the will ? Or, did it become vested in the children and grandchildren, to whom the houses were respectively devised, as if no trust clause had been contained in the will ? Or, did it descend to the tes-* tator’s heirs-at-law ?

If we were at liberty, in construing this will, to strike out the clauses which purport to create the trust, and to interpret the instrument, as if those clauses had never been contained in it, the interest in the eight lots, during the time for which the trust was to continue, would pass by the will to the children and grandchildren, to whom the lots were respectively devised. The language of those devises, when freed from the modification introduced by the trust clauses, is sufficient for that purpose. The residuary devisee would not take it, because, when the trust clauses were stricken out, it would appear to have been previously disposed of to the children and grandchildren.

But we are not at liberty to interpret the will, without reference to the inoperative devise. Although that part of the instrument is void, and of no effect in creating the trust-estate, it is, by a settled rule of construction, to be retained for the purpose of expounding the other provisions of the will. (Van Kleeck v. Dutch Church, 20 Wend 472.) It is *this rule of construction which excludes, in most instances, the land described in a void devise from the operation of the residuary clause in a will. The judgment of the court of last resort in the case cited, was founded on this rule of construction. The void devise to the Dutch church was held to indicate the testator’s intention to take the thing intended to be devised out of the operation of the residuary clause, because it was apparent, that the testator meant that the church should have it, and, therefore, that the residuary devisee should not; and the heir was held to be entitled to it, because the church was incapable of taking it under the devise, and the testator never meant to give it by his will to anybody else.

Being thus bound to look at the clauses purporting to create the trust, for the purpose of ascertaining the meaning of the residuary clause; we must also look at and consider them, with respect to the devises to the grandchildren and children, contained in the third and fourth items of the will. And so regarding them, we find that the attempt to create the trust-estate has the effect of modifying the devises contained in those items. If the trust had been valid, it would have carved the trust-estate out of the gift to the grandchildren, contained in the third item of the will; and they would have taken no beneficial interest in the houses therein devised to them, until the termination of the trust-estate. The testator thus manifested his intention to modify those devises; and although the trust-estate failed, the testator’s inter;tion to limit and modify the devises, is as plainly manifested, as if the trust had been valid. He meant, that the clear surplus income of the eight lots should be enjoyed by his children, George, Mary, Sarah and Charles, and that his grandchildren, John, William, Gideon and Joseph, should not have the possession, or come into the enjoyment of, the lots devised to them, or the income thereof, until- the expiration of a year after the death of the widow. We cannot, therefore, say that the grandchildren, in consequence of the ^failure of the trust-estate, are entitled to the immediate possession of the four houses mentioned in the third clause in the will.

If the trust-estate had been intended for the benefit of a stranger, or any person other than the residuary devi-sees, I should have no doubt that, upon its failure, the interest embraced within it would have descended to the heirs-at law. It would then have been a case like that of Van Kleeck and the Dutch church. There would have been a plain intention that the residuary devisee should not have the benefit of the property, because the testator had intended to give it to some one else. It is true, that this construction of the residuary clause is not strictly logical. Gideon Tucker, the testator, by the eighth clause of his will, devises to his four children, George, Mary, Sarah and Charles, “all his estate, real and personal, of which he might die possessed, and not therein otherwise disposed of.” The trust-estate was void, and therefore “not otherwise disposed of.” The words of the residuary clause were, according to their common and usual acceptation, sufficient to embrace everything which the testator had not effectually devised. But the courts have, in these cases, departed from a strict and logical construction of the language of the residuary clause, for the purpose of preventing an estate from passing by that.clause to a person to whom the testator did not intend to give the benefit of it. When the testator, in the residuary clause, devises all estate “not otherwise disposed of,” the courts have read it, as if it had been written “not otherwise specified.” They have refused to award to the residuary devisee, what the testator had not otherwise disposed of,-although the language of the residuary devise strictly embraced it, because they saw that the testator had intended to dispose of it.

I do not mean to say, that the liberty which has thus been taken is unjustifiable; on the contrary, where it is necessary to avoid doing violence to the testator’s intentions, it is right. But it is apparent to my mind, that it wou^ wrong to *apply that rule or construction to the residuary clause in the will of Gideon Tucker. The residuary devisees in this case were also the beneficiaries in the failing trust; the testator intended to give them the benefit of the eight houses; the beneficiaries in the trust which he attempted to create, were themselves the residuary devisees. If we look at the clause purporting to create the trust, we see, that the testator intended to give the land, or what is substantially the same thing, the income of the land, to his four children, George, Mary, Sarah and Charles, so long as the trust was to last. But the trust is void, and they take nothing by this attempted gift; the residuary clause gives to these same children all the estate not otherwise disposed by the will; this right to the land, until a year after the death of the wife, was not, in fact, disposed of, They are, therefore, entitled, by force of the residuary clause, and according to the natural import of its words, to this undevised right. We are not compelled to alter the meaning of the language, to accommodate it to the testator’s intention, as discovered in the other clauses in the will; its natural import corresponds with that inten tion; we cannot change its natural and logical import, without taking the land from those for whom the testator intended it, and giving it, or part of it, to those for whom he did not intend it. I am, therefore, of opinion, that the interest intended to be embraced within the trust, passed a legal estate to the residuary devisees, as such, and did not descend to the heirs-at-law.

With respect to the effect of the codicil, I concur with the supreme court at the general term, that the trust created in the codicL for the testator’s son, Charles, is void, for the reasons stated in the decree, so far as it affects the ultimate contingent interest devised to Charles, by the second and third clauses of the will; and that it is valid, with respect to the other property given him by the testator; the revocation is invalid, so far as it purports to affect the ultimate contingent interest just mentioned, but valid to the extent to which the *trust created by the codicil takes effect; that is to say, as to all the estate which Charles takes by virtue of the eighth or residuary clause.

The authority given to the executors by the first sentence of the seventh clause of the will, to exchange, sell, and convey gores and strips of land, for the purpose of straightening and equalizing boundary lines, is a mere power, and not a trust.

The will and codicil are valid in all other respects than those herein above stated. I agree, therefore, with my brethren, that the decree of the supreme court, dismissing the bill, was right, although my reasons for that conclusion differ from those which they, or some of them, have expressed.

Decree affirmed. 
      
       See Garvey v. McDevitt, 72 N. Y. 556, s. c. 11 Hun 457, where it wag determined, that if a trust created hy will he invalid, as suspending the power of alienation, for a longer period than that allowed by law, it cannot he sustained as a power.
     
      
       A majority of the court concurred in this opinion; that of Ruggi.es, C. J., though concurring in thd judgment, -was really a dissenting one, as tc the main question involved
     
      
       See Bowers v. Smith, 10 Paige 200; Bailey v. Briggs, 56 N. Y. 407; Chipman v. Montgomery, 63 Ibid. 221; Sutherland v. Ronald, 11 Hun 238; Marlett v. Marlett, 14 Ibid. 313; Duncan v. Duncan, 4 Abb. N. C. 275.
     
      
       See Garvey v. McDevitt, 72 N. Y. 556.
     