The respondent insists that the devises contained in the will of James Amory are valid, and for that reason the suit for partition of the estate among the children could not divest the estate of the grandchildren of the testator who might be born subsequently to the commencement of the suit for partition; that such grandchildren might take a valid estate in the property devised by the testator, of which they could not be deprived by the judgment in the partition suit, hence a perfect title could not, *Page 414 in pursuance of the orders and decrees in that suit, be conveyed to the respondent.
If the respondent is right in this proposition, the order of the general term must be affirmed. It therefore becomes necessary to examine the statute in connection with the adjudications under it, to ascertain whether the devises in the will of the real estate, other than the devise to the wife during her widowhood, are or are not valid. "The absolute power of alienation shall not be suspended 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." (1 R.S., 723, § 15.) "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. Such power of alienation is suspended when there are no persons in being by whom an absolute fee can be conveyed." (Id., § 14.)
Tested by the rules laid down in these two sections, the devise in this case cannot be sustained in its full extent, unless we construe the statute as not applying to those cases where the suspension may or may not exceed two lives in being at the creation of the estate. Laying the question of trust aside, it is very evident that the absolute power of alienation is so suspended that more than two lives in being may exist intermediate to the creation of the estate and the vesting of an absolute estate in possession. The testator devises his estate to his wife during her widowhood. This is one intervening life between the creation of the estate and the vesting of an absolute fee in possession, provided she remains a widow during her natural life. One-seventh part of the estate is then devised to Samuel B. Amory during his natural life. This is the second intervening life estate, and at the end of such life estate there may be no person in being by whom an absolute fee in possession can be conveyed, or in whom it will vest; for if Samuel B. Amory shall leave a wife surviving him, she will *Page 415 be entitled under the will to an estate for her natural life, being the third intervening life estate before the vesting of the absolute fee in the children of Samuel B. Amory.
It will be observed that the testator does not devise the estate to his children, but only the net annual income during their lives; and he does not devise the fee of the shares to his grandchildren at the expiration of the life of the child, but devises the estate to the grandchildren at the death of the child and the determination of the interest or title of his or her wife or husband. The estate does not vest in the surviving grandchild at the decease of his or her father or mother, but it remains in the trustees until the death of the surviving husband or wife. Although the grandchild who survives the deceased child eventually takes the estate, such child does not take it until the determination of the third life estate, and the grandchild cannot convey a fee in possession until the estate vests.
In the case of Hawley v. James (16 Wend., 120) Chief Justice NELSON, in delivering an opinion in the court of errors, says: "If in either aspect the limitation of the estate might suspend the power of alienation beyond the time allowed by the law, it will be impossible to sustain it, because the rule is well established that a limitation which by possibility may create such suspension, is void." And again, he says: "In the language of Chancellor KENT, the possibility at its creation that the event upon which it depends may exceed in point of time the authorized period is fatal to it." (4 Kent's Com., 283; 4Cruise, 449; 2 Burr., 873.) In the same case Mr. Justice BRONSON says: "If the estate is so limited that by any possibility the power of alienation may be suspended beyond the statute rule, the limitation is void."
I have treated the devise in this case as creating a tenancy in common in the children of the testator, and concede that it is a separate and distinct devise to each of such children, and so far as relates to them, alienation is not suspended *Page 416 for the seven lives instead of one life for each child. In this view of the case it is necessary to ascertain whether the devise is in accordance with the provisions of the statute. It is fully settled by the cases of Coster v. Lorillard (14 Wend., 265) and Hawley v. James (16 Wend., 61), that the provisions of section 14 apply as well to present as to future estates, and also that the said section applies to trust estates as well as to estates in fee. It is, therefore, unnecessary to discuss these questions, even if they were essential to the decision of the case, but we need only ascertain whether the absolute power of alienation is suspended for more than two lives in being at the creation of the estate.
The testator gives the net annual income of his estate to his wife so long as she shall continue his widow. After her death or marriage he directs his real and personal estate to be equally divided into as many shares as shall be equal to the whole number of his children surviving him, or who shall die before him leaving lawful issue surviving him. He gives the net annual income of one such share of his real estate to each child who shall survive him, to be received by such child during his or her natural life, and afterwards by his or her wife or husband while unmarried, and at the death of such child and the determination of the interest or title 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. During the continuance of these three estates or interests the title to the property is vested in the executors in trust. The title does not vest in the widow, nor in the child, nor in the husband or wife of such child. It does not vest in fee upon the death or marriage of the widow or upon the death of the child, but is held by the executors in trust until the termination of the three intermediate estates. Is the absolute power of alienation suspended? The trust in this case, if valid as such, is a trust within the third subdivision of § 55 in the article relating to uses and trusts, viz., "To receive the rents and *Page 417 profits of lands and apply them to the use of any person during the life of such person or for any shorter term."
By § 60 it is provided that "every express trust, valid as such in its creation, except as otherwise provided, shall vest the whole estate in the trustees in law and equity, subject only to the execution of the trust. The persons for whose benefit the trust is created shall take no estate or interest in the lands, but may enforce the performance of the trust in equity."
Section 63 provides that "no person beneficially interested in a trust for the receipt of the rents and profits of lands can assign or in any manner dispose of such interest;" and by § 65, "every sale, conveyance, or other act of the trustees in contravention of the trust shall be absolutely void."
The testator authorized his executors to lease out all his real estate from time to time, for a term of years not exceeding ten at a time, to erect buildings thereon if it be necessary, and to pay all taxes, charges or liens on his real estate, by a sale, if it should be required, of so much only as should be necessary for the purpose. Aside, therefore, from the prohibition contained in § 65, the trustees are impliedly restrained from selling by the provisions of the will itself; and they are expressly disabled from selling by the provisions of that section. The cestuis quetrust are prevented from selling by §§ 63 and 60. There are, then, in the language of § 14, "no persons in being by whom an absolute fee in possession can be conveyed." The absolute power of alienation is consequently suspended for a longer period than during the continuance of two lives in being at the creation of the estate. The estate was therefore void in its creation, and never had a valid or legal existence
It is insisted that because the third life estate is made void expressly by the provisions of § 17 of the same statute, so much of the will as gives an estate to the surviving husbands or wives of the testator's children should be stricken *Page 418 out as surplusage, leaving the remainder of the will to stand in full force and effect. That section provides that successive estates for life shall not be limited unless to persons in being at the creation thereof. Now this provision avoids the estate to the surviving husband or wife, as their estate was in favor of persons not in being at the creation of the estate. But the remainder of § 17 is more especially relied upon to sustain the will. That provides that where a remainder shall be limited on more than two successive estates for life, all the life estates subsequent to the two persons first entitled thereto shall be void, and upon the death of those persons the remainder shall take effect in the same manner as if no other life estates had been created.
This argument is a plausible one, and were it not for the rule that all parts of a statute should have effect, if possible, perhaps it might prevail. The argument may be somewhat strengthened by § 19, which provides that where a remainder shall be created upon any such life estate, and more than two persons shall be named as the persons during whose life the estate shall continue, the remainder shall take effect upon the death of the two persons first named, in the same manner as if no other lives had been introduced.
If, however, the reasons of the supreme court in the opinion delivered on the decision of this case are sound, what becomes of § 14? "Every future estate shall be void in its creation, which shall suspend the absolute power of alienation for a longer period than is prescribed," viz., not more than two lives in being at the creation of the estate. The creation of the estate was at the death of the testator. (§ 41.) If it suspended the power of alienation beyond two lives then in being, it was then void. It clearly did suspend the power of alienation during the probable life of the widow, then during the life of the child, and contingently during the life of the surviving husband or wife. *Page 419 It was, therefore, a void estate by the provisions of §§ 14 and 15, and (if the supreme court is right) a valid estate by the provisions of §§ 17 and 19. The estate was vested in the executors during the continuance of the three lives, two in being at its creation and the other not then in being. The third life interest is void by the first as well as the last clause of § 17. In order to give effect to §§ 14, 15, 17 and 19, and each of them, we must adopt the following hypothesis, viz: where the absolute power of alienation is suspended for a longer period than two lives in being at the creation of the estate, the whole estate is void in its creation, so that not only the third life estate and the remainder, but the prior life estates are void. But where the absolute power of alienation shall not be suspended, although more than two successive life estates are created, the first two life estates and the remainder are valid estates under the provisions of §§ 17 and 19, but the third life estate is void, and the remainder must take effect immediately. In one case, the estates attempted to be created are vested estates, and the persons in whom they are vested may convey an absolute fee in possession. In the other, the estates are contingent, and do not vest until the happening of the event upon which the estate depends. The distinction I have attempted to draw removes all the difficulties, and all of the provisions of the statute above referred to have their full effect consistently with each other.
I must, before closing this case, refer to a class of cases which may be claimed to conflict in some manner with the case ofCoster v. Lorillard. In the case of Irving v. De Kay (9Paige, 523), the chancellor refers to the case of Hawley v.James (5 Paige, 320, 458, 459), and says: "The principles stated in that case, and which are now the settled rules of law, are, that the intention of the testator, when it shall have been ascertained from an examination of the will in connection with the situation of his property, *Page 420 c., at the time of making such will, must be carried into effect by the courts so far as that intention is consistent with the rules of law; that although some of the objects of the testator for which a trust is created, or some future interests limited upon the trust estate, are illegal and invalid, if any of the purposes for which the trust was created are legal and valid, and would have authorized the creation of such an estate, the legal title vests in the trustees during the continuance of such valid objects of the trust; except in those cases where the legal and valid objects of the trust are so mixed up with those which are illegal and void that it is impossible to sustain the one without giving effect to the other; and that every disposition by the testator of an estate or interest in the rents, profits or income of his real or personal property, and every trust in the will which if valid would have the effect of rendering the property inalienable for a longer period than is allowed by law, and every remainder or other future estate or other interest limited upon the trust which would have that effect, must be considered and treated as absolutely void and inoperative, in determining the question of the validity of a devise of the legal estate to trustees, or the validity of any other provision of the will."
Tested by the rules here laid down, I see no reason to change my opinion that the whole estate created by the will in question is void. The legal and valid objects of the trust, viz., the estate in the rents, profits, c., devised for the benefit of the children, and the remainder in fee in the grandchildren, are so mixed up with the illegal and void one (the life estate in the surviving husband or wife), that it is impossible to sustain the one without giving effect to the other. The remainder limited upon such illegal estate is, therefore, absolutely void. Nothing remains, then, but the life estate in the child. That estate cannot be sustained, for a further reason than is stated above. It is merged in a greater estate, viz., the fee. The subsequent life estate and the *Page 421 remainder limited thereon being void, the fee must vest, and it vesting in the cestuis que trust of the second life estate, such estate is merged in and destroyed by the greater estate.
The order of the general term must be reversed, and that of the special term affirmed.
All the judges concurred in the foregoing conclusions.
Judgment accordingly. *Page 422
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