The action is brought for a judicial construction of the will of James N. Wells, deceased, and for instructions to plaintiffs, the executors and trustees under such will. The testator was at the date of his will, and at the time of his death, the owner of a residence at Biverdale, in the northern extremity of the city of New York, and of three adjoining houses situated on Ninth avenue, in said city, and known as Nos. 189, 191, and 193. The Biverdale property was subject to a mortgage of $15,000, and 191
The first question submitted is whether the provisions of the second paragraph of the will, directing the payment from the proceeds of the sale of the Biverdale property of “my just debts, both funded and otherwise,” include the two mortgages on 191 Ninth avenue, and whether it is the duty of the executors to apply the balance of about $2,000 now in their hands on account thereof. This, of course, depends upon the intention of the testator as indicated by the will. At common law the mortgage debt was primarily payable, like other debts, out of the personalty, by the executor in exoneration of the devise. But under the Bevised Statutes, where real property which is subject to a mortgage executed, by the testator passes to a devisee, the latter must satisfy it without resorting to the executor, unless there be an express direction in the will that the mortgage be otherwise paid. 1 Rev. St. p. 749, § 4. A mere direction in the will to pay debts is not enough to-relieve the land from the burden of the mortgage. Rapalye v. Rapalye, 27 Barb. 610; Taylor v. Wendel, 4 Bradf. Sur. 824; Meyer
The next question is whether the rents of testator’s property are also intended to be applied to the payment of the mortgage ■debts, if the proceeds of sale of the Riverdale property are insufficient. The second clause of the will says, at its end:
“But, if there is not enough derived from the proceeds of said sale to pay all of my said debts, that then for my said executors, or the survivor of them, to apply the net income from what other property I may die possessed of towards the payment of said debts, until all my said debts are paid in full.”
The court is next asked to pass upon the validity of the provision of the sixth paragraph of the will, directing the executors to lease the previously devised property until the net amounts derived therefrom shall amount to enough to pay all the debts, and then to convey to the devisees. The provisions of the Bevised Statutes regulating the accumulation of rents and profits, and the creation of perpetuities, are as follows: It is provided in 1 Rev. St. p. 726, as follows:
“Sec. 37. An accumulation of rents and profits of real estate, for the benefit of one or more persons, may be directed by any will or deed, sufficient to> pass real estate, as follows: (1) If such accumulation be directed to commence on the creation of the estate out of which the rents and profits are to arise, it must be made for the benefit of one or more minors then in being, and terminate at the expiration of their minority. (2) If such accumulation be directed to commence at any time subsequent to the creation of the estate out of which the rents and profits are to arise, it shall commence within the time in this article permitted for the vesting of future estates and during the minority of the persons for whose benefit it is directed, and shall terminate at the expiration of such minority. Sec. 38. If, in either of the cases mentioned in the last section, the direction for such accumulation shall be for a longer term than during the minority of the persons intended to be benefited thereby, it shall be void as respects the time beyond such minority. And all directions for the accumulation of the rents and profits of real estate, except such as are herein allowed, shall be void.”
It is provided in 1 Rev. St p. 723, as follows:
“Sec. 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 in this article. Such power of alienation is suspended, when there are no persons in being by whom an absolute fee in possession can be conveyed. Sec. 15. 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, except in the single case mentioned in the next section.”
It seems to be well settled that a suspension or accumulation for an absolute and definite fixed period, or for an indefinite period not measured by human lives in being, is in violation of the statutes. The direction to the executors to collect the rents until they accumulate to an amount sufficient to pay all the testator’s debts, funded or otherwise, is clearly contrary to the statute provisions cited, and therefore void. The testator has not attempted to create such a trust as the statute authorizes,—that is, a trust to sell lands, a trust for alienation,—but the trust in the will is of an opposite character. It is a trust to tie up the estate, and prohibit all alienation, until all the debts of the testator, “funded” or otherwise, are paid; a trust which, if properly declared, suspends the power of alienation until the purposes for which it was created have been accomplished. Hawley v. James, 16 Wend. 60. These debts are to be paid, not from sales, but from the rents and profits of the lands devised to the trustees. Such a direction is invalid because it might travel through a longer space of time than allowed for the suspension of alienation. Even the possibility, at
The plaintiffs request that in the event of the court finding this attempted disposition of the rents and profits invalid, and in violation of the statutes, the court give instructions as to the validity of the devises in the prior part of the sixth paragraph of the will, and whether it is their duty to immediately convey to the persons mentioned as therein directed. The answer to this may be foreshadowed from what has preceded. The will indicates an intent to charge all of testator’s debts, including mortgage debts, upon his entire real property, in the event of the Riverdale property not producing a sufficient sum. It is apparent from the fifth paragraph of the will that the testator understood that he possessed no personal property of any pecuniary value, and was solicitous to have his debts paid. This intent is reiterated in almost every dispositive provision of the will, and would satisfy the requirements of the analogous rule as to charging legacies upon lands. Legacies have been deemed charged on the real estate in cases where there was a known insufficiency of personal estate, and the surrounding circumstances give support to such intent. Briggs v. Carroll, 50 Hun, 586, 3 N. Y. Supp. 686; Society v. Foote, 52 Hun, 307, 5 N. Y. Supp. 236; Adkins v. Adkins, 13 N. Y. St. Rep. 193, and kindred cases. The intent of testator to charge these debts on his real property being established, and the means selected having failed, the balance, on equitable principles, is chargeable upon the entire real estate devised, proportionately to the value of the respective parcels. The will sufficiently expresses an intent to take the mortgage debts out of the general rule of the Revised Statutes, and put them in the same position as other general debts charged upon real property. This created a lien which may be enforced by the executors, either in equity, or in the statutory proceeding to sell
There must be a decree in accordance with these views, and it must provide that the amount of the two mortgages is a charge upon the three ¡Ninth avenue houses, in proportions fixed by the respective values, as proved at the trial; and, so charged, the executors may convey the land to the beneficiaries at once.