The testator, among other things in his will, devised to his executors all his real estate, excepting the farm devised to his wife, in trust to receive the rents and profits, and after providing that the same be paid to his wife, and on her death, in part to his daughter during her life, or until a division of the estate should take place as thereinafter provided, directed the executors, from the residue of such proceeds, to pay, on account of the moneys due on bonds and mortgages, such payments as they could, and to pay all indebtedness of the estate until the estate should be free, clear and discharged of and from all liens and incumbrances; and until such payments could be made, the executors were authorized to invest such proceeds from time to time. He also directed that after the estate was free of all liens and incumbrances, the executors should continue to receive all the rents and profits thereof, and to divide the residue of such proceeds among his children and the issue of any that might be dead, yearly and every *82year, until all the issue then living of his children should have arrived at the age of twenty-one years.
This action was commenced to have these trusts declared void.
The first objection, as to the payment to the daughter Eliza, is because its limitation is so connected with the other parts of the will, as to render it impracticable to carry it out if the remaining trust is not sustained. In regard to this bequest there is no difficulty. The intent of the testator evidently was that the payment to the daughter- should only continue to the time when the estate should be divided. If the period fixed by him for the division of the property is changed, in consequence of the invalidity of any of the trusts, the time for the payment of this money from the income to the daughter must necessarily also cease; and whenever such division shall take place, whether upder the will or sooner by the operation of the statute affecting the trust, at that time the payment to the daughter terminates.
The provision for accumulation is void, as made .for,a purpose not authorized by the statute. The only accumulation of rents and profits of lands allowed by law (3 R. S. 5th. ed. 17,) is for the benefit of minors then-in being and during their minority, or in case such accumulation be directed to commence at a subsequent time, it shall terminate at the expiration of the minority of those who are to be benefited thereby. All other accumulations are declared void. The accumulations in this case are for the- payment of debts and incumbrances of the estate, and then for the benefit of the children and the issue of any that might be dead, until all the grandchildren should arrive at age.
Hone of the provisions for this accumulation are within the terms of the statute. The provision for payment of debts is in fact to relieve the personal estate from being applied to this pmpose, and necessarily results in an accumulation of money for subsequent distribution. It is also unlimited as to duration, except on payment of all the indebtedness of the^ estate, and when that will be, is uncertain. The residue of the time for *83which the executors are to receive the rents is during the minority of the grandchildren, but for the benefit of the children. But there is no accumulation, as the rents and proceeds are to be paid over to them as received by the executors.
[New York Special Term, December, 23, 1859.The difficulty as to this devise is that the whole trust must fail because it is not made dependent on any lives then in being, but upon the lives of some then in being and upon the arrival at age of all the grandchildren, some of whom were not then in existence, I think there can be no doubt but that the devise in this case is not within the provisions of the statute. The power of alienation is suspended during the life of the wife, then during the life of the daughter Eliza, or until a division of the estate as afterwards provided, and after the death of Eliza it is still suspended until all the grandchildren arrive at the age of twenty one years, and is to be continued until there are no grandchildren living who shall be minors. It appears from the pleadings that there are now living eight or nine grandchildren, some of whom were born since the death of the testator, and that there is no probability of failure of issue as to any.
My conclusion is that this devise is void; and that the plaintiff is entitled to judgment declaring such trusts void, and that the estate vests in the children in fee.
Judgment accordingly.
Ingraham, Justice.]