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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 163 The question presented on this record is whether the trusts created by the will of Caroline M. Riggs, dated June 27, 1867, are valid within the law of perpetuities, or are void for remoteness. There can be no doubt that if the testatrix, at her death, was the absolute owner of the estate embraced in the trusts, they were valid both in respect of their purposes and duration. In general character they are trusts to apply the rents, profits and income of the trust estate for the support and maintenance of two children of the testatrix during their lives, respectively, with remainder on the death of either, of the share of the one so dying, to his heirs and next of kin, except that in case of the death of either child during minority and without issue, the whole estate is to *Page 166 be held in trust for the survivor during life, with remainder to his heirs and next of kin; and in case of the death of both children during minority and without issue, then, on the death of the longest liver, the whole estate is given absolutely to designated beneficiaries. Under the will the estate was to vest in absolute ownership, at the furthest, within the compass of the lives of the two children. The share of each child, provided he attained majority, would be liberated from the trust on his death, and the suspension of that share would, in that event, be but for one life only. But if either child should die during minority without issue, there would be a further suspension of the absolute ownership of his share during the life of the survivor. As to each share, therefore, there might be a suspension for two lives, but this would be within the limit allowed by law. The statutory limit of suspension of the power of alienation of real estate is two lives in being at the creation of the estate and a minority (1 R.S. 723, § 15), and substantially the same rule applies to limitations of personal property. By another section of the statute (§ 41) it is declared that, "the delivery of the grant where an expectant estate is created by grant, and where it is created by devise, the death of the testator shall be deemed the time of the creation of the estate." There would be no difficulty in sustaining the limitation in the will, if the period of suspension is reckoned from the death of the testatrix.
It is claimed, however, in behalf of the respondents, that the will of Mrs. Riggs was merely an execution of a power of appointment reserved in the trust deed of January 6, 1853, made between the testatrix (then Caroline M. Field), of the first part, and George S. Riggs and others, of the second part, and not an exercise by her, as owner of the property, of the jusdisponendi incident to ownership, and that the trusts created by the will were void under the statute of powers (1 R.S. 732), for the reason that they were limited upon the lives of persons not in being at the creation of the power, viz., upon the lives of the two children of the testatrix, who, though living when the will was made, were not born until long after *Page 167 the trust deed creating the power had been executed. By section 128 of that statute it is declared that "the period during which the absolute right of alienation may be suspended by an instrument in execution of a power shall be computed not from the date of the instrument, but from the time of the creation of the power." Section 129 declares that "no estate or interest can be given or limited to any person by an instrument in execution of a power, which such person could not be capable of taking under the instrument by which the power was granted." And by section 105 it is declared, in substance, that a power reserved is subject to the provisions of the article in the same manner as a power granted.
The trust deed was made in contemplation of the marriage of the settlor, Caroline M. Field, with George S. Riggs. Its leading purposes were to secure to the settlor the income of her property for her own benefit during the marriage, free from the control, disposition, debts or incumbrances of her husband, and to secure the principal to her if she survived her husband, or in case she should die during coverture, to her appointees by will, or if she should make no appointment, to such persons as at her death would be her heirs under the laws of New York, as if all the property was real estate. To secure these objects the settlor conveyed by the trust deed to the trustees, all her real and personal estate in trust, to receive and apply the rents, issues, profits and income to her use as received, without power of anticipation during her coverture, and in case she survived her coverture, to reconvey the property to her; but in case she should die during coverture, then the trustees are directed to "grant, assure and deliver all and whatever may remain of the hereby granted premises unto such devisee or devisees, in such share or proportion as she, the said party of the first part, by her last will and testament, may direct, which will and testament," the instrument declares, "she, the said party of the first part, is empowered, authorized and enabled to make, and by force of these presents, without any other or further reservation of power in that behalf," etc. Then follows an *Page 168 alternative provision that in default of appointment, the property shall "go unto such person or persons living at the death of the said party of the first part, and being her heir or heirs-at-law, as would be entitled to take the same by descent from her in case the same was land belonging to her situate in the state of New York, and if more than one person, then in the proportion in that behalf prescribed by the laws of said state.
The trust deed created a valid trust for the joint lives of Mrs. Riggs and her husband, or during coverture, if she should become discovert by the death of her husband before her death. It was one of the express trusts authorized by statute to receive the rents and profits of lands and apply them to the use of any person during the life of such person, or for a shorter period (1 R.S. 728, § 55, subd. 3), and suspended the power of alienation of the real estate and the absolute ownership of the personal property embraced in the trust, during the trust term, and although the trust might have terminated before the expiration of Mrs. Riggs' life by the death of her husband in her lifetime, the suspension was, in legal effect, a suspension during a life. Neither she alone, or in conjunction with the trustees, could abrogate the trust. The statute makes every conveyance or other act of the trustees of an express trust in lands, in contravention of the trust, absolutely void, and, by analogy, the same rule governs trusts of personal property. (1 R.S. 730, § 65;Graff v. Bonnett, 31 N.Y. 9; Campbell v. Foster, 35 id. 361.) The will further provides, in a contingency, for the suspension of the power of alienation and the absolute ownership of at least one-half of the same property during the lives of the two children of the testatrix, making possible a suspension for three lives, if the trust created by the trust deed and the trusts created by the will are to be read as if incorporated in a single instrument, viz., the trust deed of 1853.
If Mrs. Riggs remained the absolute owner of the property after the execution of the trust deed, subject only to the estate of the trustees for her life, the trusts in the will would be valid. The reversion in the case supposed would be property which *Page 169 she could grant or devise, and limit future estates thereon in her discretion, subject only to the restriction that they must vest in absolute ownership within two lives in being at their creation. But Mrs. Riggs was not the absolute owner of an estate in reversion, after the execution of the trust deed. In form the whole estate was conveyed to the trustees. Their title, however, was, in legal effect, limited in point of duration to the trust term. (Stevenson v. Lesley, 70 N.Y. 512; Crooke v. Co. ofKings, 97 id. 451.) But the trust deed itself contains a limitation of the estate to other persons than Mrs. Riggs in the event of her death before her husband, and without having made an appointment by will, viz., to such persons living at her death as would take the property as her heirs under the laws of the state of New York by descent, as if it was wholly real estate.
The property transferred by the trust deed was mainly personal, but at the time of Mrs. Riggs' death was mainly real, the trustees having, under the authority of the deed, invested the fund to a large extent in real estate situate in New York and Maryland. The remaindermen, in case the event happened upon which the remainder was limited, would take as purchasers. It was limited to persons who would not be entitled, as of course, to the personal estate, and who might not be entitled to the real estate outside of New York, and whose title would not be subject to the tenancy by the curtesy of the husband, as it would have been if the deed had not been made. (See Reading v.Rawsterne, 2 Ld. Raymond, 826.) It is true that the remainder might be defeated by either of two events; the death of Mrs. Riggs before the death of her husband, or by her will made in execution of the power of appointment and taking effect during his life, and it was in fact defeated in the latter way. But Mrs. Riggs could not during the life of her husband affect the limitation in remainder, except in the particular way pointed out, that is by an appointment by will. She could not defeat it by a conveyance inter vivos. The quality of absolute property, which enables an owner to dispose *Page 170 of it in any of the forms known to the law, did not attach to the interest remaining in Mrs. Riggs after the execution of the trust deed. What she did have was a reversion depending on the event of her outliving her husband, which has been defeated by her death, and in addition a right to appoint by will only in case of her death during coverture. It is a doctrine of the common law that an unrestricted power to appoint a fee in lands by deed or will is equivalent to ownership, because the donee of the power may at any time, by exercising the power, acquire an absolute estate, and for this reason the question of perpetuity arising upon limitations made by the donee of such a power is determined with reference to the date of the execution of the power and not of the instrument creating it. (Sugden on Powers, vol. 1, page 469et seq.) But the general rule is expressed by Chancellor KENT in his Commentaries (Vol. 4, page 337): "An estate created by the execution of a power takes effect in the same manner as if it had been created by the deed which raised the power." The power of disposition reserved by Mrs. Riggs in the trust deed was not an absolute power equivalent to absolute ownership. It was restricted to a disposition by will. The statute of powers (§ 85) defines an absolute power to be one by which the grantee is enabled in his lifetime to dispose of the entire fee for his own benefit. The power in this case, under the definition in our statute, was general, but not absolute. (Cutting v. Cutting,86 N.Y. 535.)
We think the validity of the suspension in the will of Mrs. Riggs is to be determined by the test whether it would be valid if it had been part of the limitation in the trust deed and had been inserted therein at the time the deed was executed. This seems to be the rule of our statute and it is the rule of the common law in respect to appointments under special powers, but not as to appointments under general or absolute powers. Mr. Jarman, in referring to this subject, says that the reason that this test is not applicable to appointments under general powers is that such powers are, in point of alienation equivalent to actual ownership, but he adds: "This *Page 171 reason fails when the power, though general in its objects, is to be exercised by will only. In such a case the power of disposition is suspended during the life of the donee, and appointments made by virtue of it are, therefore, to be tested in the same way as appointments under a special power." (1 Jar. [5th ed.] 291.) The case of Re Powell's Trusts (39 L.J. Ch. 188), decided by JAMES, V.C., cited by Mr. Jarman, fully sustains the text. The case of Rouse v. Jackson (L.R. 29, Ch. Div. 521) seems to be adverse, but it proceeded, I think, on a failure to discriminate between a general and unrestricted power and one to be exercised by will only, and this is the view taken by Mr. Gray in his work on Perpetuities (§ 526); see, also, Marsden on Perpetuities (p. 250). Construing the trusts in the will of Mrs. Riggs as if created at the date of the trust deed of 1853, they are invalid as they provide for a possible suspension of the power of alienation of real estate and the absolute ownership of personal property for three lives, and for the additional reasons that the two children, upon whose lives the trusts in the will are limited, were not in being when the trust deed was executed, and could not have taken such an estate as was limited under the will, if it had been limited in the same manner in the deed of 1853.
The argument is urged that, conceding that the absolute power of alienation of the trust estate was suspended during the coverture of Mrs. Riggs under the general rule, by reason of the disability imposed by the statute upon the trustees to do any act or make any conveyance in contravention of the trust, this disability was removed as to property held in trust for married women, by the married woman's act of 1848, as amended by the second section of the act of 1849. That section provides that any person who may hold any real or personal property as trustee for any married woman may, on her written request, convey the same to her, or the rents, issues or profits thereof, for her "sole and separate use and benefit," but it is made a condition to such conveyance that the request shall be accompanied by a certificate of a justice of the Supreme Court that "he has examined the condition *Page 172 and situation of the property and made due inquiry into the capacity of the married woman to manage and conduct the same." This statute does not, we think, answer the difficulty. Assuming that the trust in this case was within the statute of 1849, the disability imposed upon a trustee of an express trust by the general statute, is not removed in the case of a trustee for a married woman, except conditionally, the condition being the judicial action of a judge certifying, after an examination of the facts, that it is a proper case for the exercise of the power conferred by the act. In substance, the statute confers a power dependent upon the consent of a judge of the court. Until such consent is obtained the suspension continues. It could not be terminated by the conjoint action of the trustees and Mrs. Riggs. The general test of alienability is that there are persons in being who can make a perfect title. This cannot be predicated, we think, of a situation where judicial action, which may or may not be obtained, is requisite to authorize a conveyance. (See Gray on Perpetuities, § 527.) But, independently of this consideration, we think the statute was intended to apply merely to nominal trusts to secure a married woman in the enjoyment of her separate estate, where this was the sole object of the trust. The statute in such a case permits the trust to be abrogated and the legal title to be vested in the beneficial owner, the separation of the legal and equitable estates no longer serving under our statutes any useful purpose. It certainly cannot be construed to prevent a parent, relative or other person from creating an express trust to apply the rents and profits of the trust estate for the benefit of a married daughter, niece or other female without subjecting it to the risk of destruction by the conjoint action of the trustee, the beneficiary and the court. The trust created by the deed of 1853 was not a mere formal or passive trust. The title to the property was vested in the trustees. It was strictly a trust under the statute. The deed not only declared the interest of Mrs. Riggs in the trust property, but limited thereon future contingent estates to take effect on her death during coverture, unless defeated by her appointment by will. This trust was *Page 173 not, we think, within the purview of the statute of 1849. If a conveyance had been made to her under that statute, the property would not be held "for her sole and separate use and benefit," because the contingent estate in remainder could not in that way be defeated. (Bryan v. Knickerbacker, 1 Barb. Ch. 409;Wright v. Tallmadge, 15 N.Y. 315.) We think the court below properly construed the will, and the judgment should, therefore, be affirmed.
EARL, FINCH and PECKHAM, JJ., concur; DANFORTH and GRAY, JJ., dissent on the ground that the fee did not pass to the trustees by the deed. They took no greater estate under it than was sufficient for them to perform the duties stated. The remainder, or reversion, remained in the grantor. The will was not in the execution of any power, and there is, therefore, no contravention of the statute against unlawful perpetuities in the trust provisions of the will. RUGER, Ch. J., does not vote.
Judgment affirmed. *Page 174