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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 408 James Amory died in February, 1835 By the seventh clause of his will he appointed his wife Martha, during her widowhood, his executrix, and Burtus and Gross his executors, and trustees of his estate, real and personal. The testator then proceeds to declare that, "notwithstanding anything hereinbefore contained, I do devise the same in trust to them for the purposes of this will." The better to effect his purposes in the will, he authorized them to lease his real estate for a limited term, to erect buildings, pay all liens, c., and, if it should be necessary, to sell so much of the real estate as might be necessary for those purposes. They were also to receive the rents, profits, income and dividends of his estate, real and personal, and pay them over to his widow so long as *Page 409 she continued unmarried, to be disposed of by her as directed in the previous clauses of the will; and after her death or marriage to pay over the personal estate, and the net annual rents, c., to and among the devisees and legatees in the manner thereinbefore directed.
The testator by this provision creates a trust fund consisting of all his real and personal estate. The trust may continue during the life of Mrs. Amory, as the trustees are directed to pay over to her, as the beneficiary, the rents and profits during her life, or until her marriage. The trust, however, is to continue beyond her life, since the trustees are required after her death or marriage to pay over the personal estate and the net annual rents, c., to and among the devisees and legatees, as thereinbefore provided. By the third clause of the will the personalty is divided into equal shares, and given to such of the testator's children as survive him, and to the issue of those who die before him, the issue respectively taking the share of their deceased parent. The trust as to the personal estate of course ceases with the life of Mrs. Amory.
By the fourth clause the net annual income of the real estate is given, one share to each surviving child, "to be received by such child during his or her natural life." As the trustees, by the seventh clause, are to pay over the net annual income, as directed by the fourth clause, the trust as to the real estate must continue during the life of the children surviving the testator. This is the second life. But the trust does not then cease; because it is provided by the same clause not only that each child shall receive his or her share during his or her natural life, but that afterwards the same shall be received "by his or her wife or husband so long as such wife or husband shall not marry again." And at the death of such child, and the determination of the interest of his or her wife or husband, he gives "the fee of the share of which such child received the profits to the children of such child absolutely, in fee, as *Page 410 tenants in common." As the wife or husband may remain unmarried, the trust may continue for the life of these persons, which is the third life in the order prescribed by the testator. If we are to understand the language of the devisor in its usual and ordinary acceptation, there is no room for construction. It is plain and explicit. He makes the seventh clause the controlling one, by expressly declaring that, "notwithstanding anything before contained," he devised the whole property "in trust for the purposes of this will." One of those purposes was, that the trustees should receive the rents, issues and profits of his real estate, and pay them over to the husband or wife of a child dying after the decease of the testator. And, as if to remove all doubt of the continuance of the trust, he further declares, in the fourth clause, that upon the determination of the interest (that is, the equitable right of the husband or wife to receive these rents), the estate shall go in fee to the ultimate devisees. The right of the unmarried beneficiary to receive, and of course the duty of the trustees to collect and pay over, would only terminate with the life of the former; and the estate would then vest in interest and possession at the same moment. To my mind it is too plain for controversy, that if any trust is constituted by the seventh clause, it endures and was intended to endure for three lives at least. It therefore contravenes the provision of the statute which declares that the absolute power to sell real estate shall not be suspended, by any condition or limitation whatever, for a period longer than two lives in being at the creation of the estate, and was consequently void.
It is, however, argued, upon the part of the respondents, that the testator gave successive legal estates to the devisees named in the will; that these are valid for two lives, and void as to the residue, according to the provisions of the 17th section, 1R.S., 723. But this hypothesis repudiates the seventh clause altogether. When this clause *Page 411 was framed, the testator was fully aware that he had in form devised the rents and profits to his wife and children and their surviving wives or husbands; but he declares that, notwithstanding this disposition, he devises the whole of his estate in trust to the trustees designated, through whom the widow and the devisees are to receive the rents and profits previously allotted to them. They are to take from the trustees and through the trust. There is no discrepancy between the different parts of the will. By the prior provisions of this instrument, the widow and the other beneficiaries were to receive for their use the rents during their lives respectively. The mode by which this object was to be effected was the trust; and in the clause establishing it the testator distinctly refers to all the devisees as the cestuis que trust who are to receive his bounty in the manner and by the instrumentality there designated. This was his leading purpose; and to its accomplishment every other part of the will, whether apparently in conflict with it or not, is made subservient. To reject a clause thus explicit and emphatic would be in effect to make a will, instead of construing the one executed by the testator. The conclusion, I think, is inevitable, from the plain language of the testator, that he intended to create a trust as to his real estate, and we are bound to presume that he designed to establish a legal trust, with all its incidents. One of these incidents was, that the whole estate, legal and equitable, in the land, should be vested in the trustees, and that the persons for whose benefit the trust was created should take no estate in the lands, but might enforce the performance of the trust in equity. (1 R.S., 729, § 60.) This equitable right, and no other, the testator intended to confer on the cestuis que trust, the widow included; and if by construction we can change this equity into a legal estate in the land, I see no reason why we might not designate a new beneficiary. *Page 412
It is said that since the widow, as one of the trustees, was entitled to possession and the receipt of the rents and profits, she must be deemed to have a legal estate of the same quality, duration, c., as her beneficial interest, according to 1 R.S., 727, § 47. There are two answers to this suggestion: First, that this action was not aimed at active, but passive trusts. (4Paige, 404.) This is far from being a nominal trust. The trustees were to lease the land, collect rents and erect buildings; and it was their duty to preserve the property for the benefit of the beneficiaries whose interest accrued subsequently to that of Mrs. Amory. In the second place, the legal estate established by the will was a joint tenancy. Mrs. Amory had, at law, no interest in the land, or the rents and profits, which was susceptible of a division. Her separate conveyance would be a nullity; and she could confer on no one the right of entry, or of collecting the rents. If the effect of the 47th section was to enable her to convey a freehold estate for her life, she could by a conveyance divest her co-trustees of possession, deprive them of the power to lease or sell the land, or to make improvements; in a word, she could by her own act abolish the trust. And this doctrine, if sound, would be equally applicable to every trust sanctioned by the 55th section of the chapter of the Revised Statutes above cited, by which trustees were authorized to receive the profits of land and apply them to the use of any person for life or a shorter period.
Again, an attempt is made, in the argument submitted to us, to apply the rule prescribed by statute for future legal estates, to this trust; and the trustees are supposed to hold one estate for the life of Mrs. Amory, a second for the child surviving the testator, and a third for his or her wife or husband; that since by the statute a remainder limited on three or more lives is void, as to the excess beyond two lives in being at the death of the testator, so in this case the law will preserve the two first trust estates, and avoid *Page 413 the third only. The answer to this suggestion has been anticipated. The testator created, or intended to create, a single estate in joint-tenancy, which should vest in the trustees the whole estate in law and equity, for all the purposes of his will. The quality of the estate would have been the same, whether the beneficiary was to receive the profits for two years or two lives. Where the statute clothes the trustees with the entire estate, legal and equitable, there can be no remainder, and where the right of the cestuis que trust is defined and limited to the enforcement of the trust in equity, there is neither necessity nor room for a springing use. In this case the trust is void because it establishes a perpetuity which the law prohibits. The whole estate upon which it was dependent falls with it. The powers bestowed upon the trustees are utterly incompatible with the hypothesis of distinct estates, either in law or equity. The power to make improvements, for example, is a continuing power, and might, for aught we can know, be discreetly exercised as well during the second or third life as the first; and during the time when the widow was to receive all the rents, as when they were to be divided into shares, the number of which was unknown, both at the execution of the will and at the death of the testator.
The judgment of the supreme court should be reversed, but under the circumstances, without costs.