The Surrogate.—[After a statement of the testimony.] —No question is raised as to the sufficiency of the proof of the execution of the instrument propounded, nor is there any doubt upon the evidence as to the soundness of decedent’s mind, though some testimony is given by the contestant, of her strange conduct just before the execution of the instrument; but her intelligent and coherent letters of May 29 and June 11, after its execution, and the proof of the subscribing witnesses, are sufficient to overcome the statements of the contestant in that particular, and I entertain no doubt that she was, at the time she executed the will, of sound and disposing mind, sufficient to enable her to make her will, unless she was controlled unduly.
This brings me to the consideration of the objection to the probate, that its execution was not free, unconstrained, or voluntary. But before considering that question on the evidence, it becomes necessary to determine what portion of the testimony contained in the several memorandum books or diaries is admissible, and upon what branches of the case. I entertain no doubt that on the question of mental capacity, being the emanation of the decedent’s own mind, they are all admissible, though they are quite too remote for any marked effect upon the case.
But I am, equally clear in the opinion that any •statement of fact upon any subject, whether tending to show the conduct of the decedent, or Mr. Bradley, or of the contestant, other than those above stated, must be .held to be hearsay, and, therefore, incompetent, except such as were made at the time and formed-part of the transaction of the execution of the instrument pro-1 pounded ; in other words, these declarations would form a part of the res gestee.
In the case of La Bau v. Vanderbilt (3 Redf., 384), I had occasion to review a large number of authorities upon a question akin to this, to wit: as to the admissi.bility of declarations made by the decedent after the execution of his will; and I reached the conclusion that no declarations by the testator subsequent to the execution of the will propounded were admissible in evidence, except it satisfactorily appeared to the court that these declarations reflected upon his mental condition at the .time when he executed the instrument.
In Stephens v. Van Clief (5 Wash. C. C. 265), Washington, J., says : “ The declarations of a party to a deed or will, whether prior or subsequent to its execution, are nothing more than hearsay evidence, and nothing could be more dangerous than its admission, either to
Redfield (1 Law of Wills, 553), after a careful consideration of the numerous authorities, states that the declarations of a testator near the time of making a will, so as to be regarded as part of the transaction, should be received upon the principles of evidence, as part of the res gestee. On the other hand, mere naked declarations of the testator, made so remote from the time of execution as not to form part of the res gestee, to the effect that attempts at fraud or under influence had been made, or had compelled him to make a will contrary to his real purpose and intent, seem wholly inadmissible upon recognized principles of evidence ; and after considering the leading case in this state, of Waterman v. Whiting (11 N. Y., 157), and stating the rule enunciated by that decision, the learned author, at page 556, says: “ It is here very justly said, that where the issue involves no question of mental capacity, declarations of the testator are not receivable. But as few cases of this kind arise in the courts where some such question is not involved, such declarations must generally be received for the purpose of showing the state of the testator’s mind as part of the res gestee ; although not entitled to have any weight in proving external acts either of fraud or undue influence;” and in speaking, at p. 557, of the different elements going to create undue influence, he says : ‘1 They consist partly of extraneous acts and partly of the effect produced upon the mind of the testator by such acts. Both are equally indispensable to be established by competent evidence ; the former (extraneous-acts) can only be proved by evidence independent, of the
The facts in this case may be briefly stated as follows :
The decedent, the contestant, and their sister, Emma, were owners of property jointly, yielding an annual income of about $15,000, all three of whom were members of the Protestant Episcopal Church, and attendants on St. Alban’s Church, in East Forty-seventh street, in this city, commonly denominated a ritual church. Some time in the year 1869, Mr. Bradley came to this country, and rendered some temporary assistance at St. Alban’s in the absence of the rector, he having been, in June, 1867, ordained deacon of the Church of England, as Joshua Dodgson Bradley, and on the same day, as Joshua Dodgson Bradley, licensed to assist as curate at St. Alban’s, Holborn, and in June, 1868, was ordained priest, as Joshua Dodgson Bradley ; and in the will he is named the Rev. Aloysius J. D. Bradley, and his petition to. intervene in this proceeding is .signed John.
Soon after his arrival from England, he made the acquaintance of decedent and her. sister, and was licensed by Bishop Potter, of this diocese, to preach. He was invited to dine with the sisters by decedent, with the assistant of St. Alban’s, Mr. Hoyes, and thereafter continued to visit with some regularity at the house, but appeared to be more attentive to the decedent, and more courteously received by her, than the other sisters.
Late in the year 1869, he contemplated starting a mission for poor people in the eastern part of the city, and obtained some subscriptions therefor, the sisters in question having subscribed; but late in December of that year, without starting the mission, he returned to Europe, the decedent going to the steamer to see him off.
' It appears that decedent was greatly attached to St. Alban’s and its services, and took an active personal interest in it, and served in some capacity about the altar. The following May, Mr. Bradley returned, and called upon decedent, and. was, from time to time, entertained by the sisters. The intimacy between decedent and Mr. Bradley increased, they attending different churches together .at this time ; the memoranda of the decedent indicates her interest in the Reverend Mr.. Hoyes, to whom she had theretofore been greatly attached.
Mr. Bradley abandoned the mission on the' east side,
Her sister, the contestant, remonstrated with her, but. with no effect. Decedent used to teach in the Sunday-school.
The oratory did not succeed, and Mr. Bradley removed to West Forty-third street, and decedent accompanied him, and occupied a room near that used for the mission.
This new mission was called the Orphanage, where decedent remained until December, 1871, when she became sick and was taken home by contestant. Mr. Bradley called to see her while sick. . Before she fully recovered, she returned to the Orphanage, when she was informed by Mr. Bradley that he was going to join the Roman Catholic Church, and in January, 1872, he made the announcement in a sermon preached at the Orphanage, at which the decedent was present.
For some time thereafter decedent remained at home. Mr. Bradley called frequently upon her, and, on June 30, she departed in the same steamer with Bradley, having announced to her sister, a few days before, her intention to sail with a professor and his family. She was attended to the steamer by Mr. Bradley and some. Catholic priests of the city, and just before the departure of the steamer, she reached there in time to bid farewell to her sister, who had gone to the steamer to see her off. Decedent remained abroad from that time until April, 1878, nearly six years, corresponding frequently with her sisters, and receiving remittances from home; and her diary professes to give account of the manner in which she spent her time, traveling sometimes with Mr. Bradley, after residing with and visiting and corresponding with his family in England, and continuing the correspondence with Mr. Bradley when they were separated. She spoke of Mr. Bradley’s father, mother, and sister, with great interest and affection, and almost daily made some memorandum of her correspondence with Mr. Bradley, describes their travels through Europe, their visit to Rome, and other cities and countries ; their attendance upon the Romish Church, and describes the services, the entrance of Mr. Bradley as a student in| theology of the American College at Rome, his progress' and his final ordination, using in her memorandum, and
On her return, she very soon spoke to contestant, with reference to the will of her sister, deceased, and charged her, and other persons connected with St. •
In her letters she made some allusion to calling on Dr. McGrlynn, and his introduction to the Lady Superior, who had a brother by the name of Ryan,whom she subsequently procured to draw her will, and who became one of the subscribing witnesses. Mr. Ryan was spoken to by his sister, the Lady Superior, who made an engagement for him to meet the decedent at St. Stephen’s Home, where the will was subsequently executed.
After its execution, she wrote to Mr. Bradley, stating that the will business was finished to her satisfaction, and in the hands of Mr. Ryan, a lawyer, giving Bradley the office number of said Ryan, and stating that she had remembered her sister, as she had behaved handsomely about Emma’s will, stating that when she had time she would send him a copy of her will, as the one drawn in Liverpool was not of any use, as he could not inherit the property, but only receive the income ; it had better be destroyed, for the one here was different in other respects ; asking Mr. Bradley to communicate with Mr. Bradley who drew the will in Liverpool. Decedent also informed him that she had named Dr. McGrlynn as executor. Afterwards she had received information from .her lawyer at Liverpool, that he had destroyed the will executed there according to her instructions. On October
■ It is claimed, on the part of the learned counsel for the contestant, that all this attention, the renunciation of the Episcopal Church, and the entrance into the Roman Catholic Church, and influencing the decedent to follow him, and to go to Europe and reside abroad with him, were all concerted designs to acquire mastery over her mind, and the ultimate disposition of her property in his favor, and that the circumstances of her return after the execution of a will in Liverpool, and her execution of the present instrument and its terms, indicated and established Bradley’s influence over her mind and will, and that that influence was continued through the
The circumstances relating to the consultation of counsel and the drawing of the will by Mr. Ryan, the attorney, as proved by him, are substantially as follows:
That in the early part of May he received a letter from his sister, the Lady Superior of St. Stephen’s Home, a Roman Catholic institution, requesting him to call at the “ Home,” but that there was no statement in the note as to any matter of business ; and that, in pursuance of the invitation, he did call, and after waiting a few moments the decedent came in, and she was introduced to him by his sister, who left the room immediately; and he was then informed by decedent that she desired him to draw her will, and received her instructions, of which he made a memorandum in writing, and that his sister came in after he had taken the memorandum and was about departing ; that when he saw his sister on his first call she informed him that the decedent wished him to draw her will and to make an appointment to meet her, which he did, and called accordingly, when he met decedent and received her instructions, as above stated ; that his sister said nothing as to the terms of the will, and only inquired if it had been made, after it had been executed ; that decedent spoke to him about Mr. Wandell being the attorney for the family; that a few days after taking her instructions he submitted a draft to her, at the Home, and she took it away, and afterwards he heard that she wanted it altered; and after it had been changed according to her wishes, it was executed before
■ This is all the testimony tending to show undue influ- ■ ence exerted over the mind of the testatrix, at the time of the preparation or execution of the instrument, either by Dr. McGiynn, the Lady Superior, or the attorney, Mr. Ryan ; although in her letters to Mr. Bradley about that time she refers to a visit to Dr. McGiynn, and receiving a letter from him to the Lady Superior, and of consulting a lawyer recommended by Dr. McGiynn, who •had advised her to make a new will; and she alluded to the fact that Bradley could not inherit the property, but only receive the income ; and that. she desired the will, . under the advice of her attorney, made in Liverpool, to be destroyed. But in respect to these latter statements, under the authorities above cited, I am entirely clear in the opinion that the facts alleged in her letters are not proved, and that there is nothing in this case justifying the finding that decedent ever executed a will in Liverpool, or that she ever received -the letter from Dr. McGiynn to the Lady Superior, or that Dr. McGiynn ever recommended Mr. Ryan as a • lawyer, for they are mere statements-of the decedent, not otherwise proved, and are competent only for the purpose above stated. There is nothing in the testimony given by Mr. Ryan, amounting to a rational suspicion that any one benefited by the terms’of the will was present, either at the dictation of its provisions by the decedent or its execution, or participated in any way in procuring the attorney who drew the will, or its execution ; nor is there the slightest evidence that either Dr. McGiynn, the Lady Superior,
In reaching the conclusion that the facts stated in the
• ■ This brings me to the inquiry whether the testimony ■warrants the conclusion that the instrument propounded was produced by the undue influence of Mr. Bradley, exercised over the mind of the testatrix.
U Th¿ influence or importunity which will avoid a will •must be such as to deprive the testator at the time of the free exercise of his will, whereby the instrument becomes •the will of another mind, rather than that of the testator, and such undue influence must have been exercised in respect to the very act, and the act must be proved, and .will not be inferred from, opportunity and interest. (Gardner v. Gardiner, 34 N. Y., 155; Seguine v. Seguine, 4 Abb. Ct. App. Dec., 191; Kenny v. Johnson, 60 Barb., 69; Cudney v. Cudney, 58 N. Y., 148.)
In Deas v. Wandell (3 Sup'm. Ct. [T. & C.], 128), it was held, that the circumstance that the testatrix’s will 'gave all of her property to persons not related to her,
In Children’s Aid Society v. Loveridge (70 N. 7., 388), it was held, that to avoid a will upon the ground of undue influence, it must be shown that the influence exercised amounted to moral coercion, which restrained independent action and destroyed free agency, or that by importunity which he was unable to resist, the testator was constrained to do that which was against his free will and desire.
Judge Redfield (American Cases upon the Law of Wills, page 472, note), says : “ We may safely say that where an unjust will is produced by deception and fraud, it cannot be upheld; so, too, where such will is the off
In Rollwagen v. Rollwagen (63 N. Y., 504), Judge Eabl, at page 519, says : “ The influence exercised over a testator, which the law regards as undue or illegal, must be such as to destroy his free agency, but, no matter how little the influence, if the free agency is deployed, it vitiates the act which is the result of it.” But when it is held in Seguine v. Seguine, and Deas v. Wandell, Cudney v. Cudney, and other cases above cited, that there must be evidence that the person, having the motive and opportunity to exercise undue influence, did so, it is not to be understood that there must be direct evidence of such undue influence; for in Fagan v. Dugan (2 Redf., 341), I reached the conclusion that to prove the exercise of undue influence at the particular time of the
From a careful consideration of all the testimony in this case, it is quite apparent that soon after Mr. Bradley made the acquaintance of the decedent, down to the time when she left England for home, he exercised,
In Sears v. Shafer (6 N. Y., 268), it is said that in some cases undue influence will be inferred by the nature of t-he transaction, and the exercise of occasional or habitual influence, citing several authorities ; and in Tyler v. Gardiner (35 N. Y., 559) it is stated, that when the beneficiary is the active agent in procuring the execution, by one in extremis, of an instrument disturbing dispositions previously settled, and where the transaction is surrounded by the usual indicia of undue influence, ■he is called upon to show that .the inducements which confessedly led to the change wmre not unfounded and illusory ; and at page 595, Judge Porter says : “It is no sufficient answer to the presumption of undue influence, which results from the undisputed facts, that the testatrix was aware of the contents of the instrument
In Nesbit v. Lockman (34 N. Y., 167), Judge Hunt said: ‘ ‘ Where persons standing in a confidential relation make bargains with, or receive benefits from, the persons for whom they were counsel, attorney, agent or trustee, the transaction is scrutinized with the extremes! vigilance, and regarded with the utmost jealousy. The clearest evidence is required that there was no fraud, influence, or mistake ; (hat the transaction was perfectly understood by the weaker party, and usually evidence is required that a third and disinterested person advised such party as to his rights. The presumption is that the propriety of the transaction, and the onus of establishing the gift or bargain to have been fair, voluntary, and well understood, rests upon the party claiming, and this in addition to the evidence to be derived from the execution of the instrument conveying or assigning the property ;” but he proceeds to review the several authorities, and arrives at the conclusion, “ that while a bargain between attorney and client, or principal and agent, is viewed with great jealousy and suspicion, and its entire fairness must be shown by the party claiming the benefit of it, there is no inexorable rule pronouncing its illegality.” In the case of Ingersoll v. Phipps (ante, p. 99), I had occasion to review most of the authorities upon this subject, and concluded that where a paralyzed
I have stated the circumstances under which, if Mr. Bradley had been present, and had participated in the making and execution of the will propounded, a presumption of úndue influence against its validity would be indulged in ; but as he was in Europe, thousands of miles away, and could not then have exerted any active, controlling, or persuasive influence upon the mind of the decedent, except sr^ch as resulted from their long continued and confidential intimacy, and the great partiality which she had manifested for him, and doubtless felt at the time of the execution of the instrument,—the entirely novel question is raised as to the indulgence of any presumption of undue influence from the terms of the will.
We have already seen that intelligent persuasion may be addressed to a testator in behalf of a person seeking a benefit by his will, or in behalf of charitable or religious institutions, without any imputation of improper influence, and that if the intelligent mind of the testator
Now, a view of all the testimony in this case fails to show to iny mind that the decedent, in all the intercourse with Mr. Bradley, however questionable as to its propriety in the eyes of society, ever yielded her opinion or will to Mr. Bradley, in the sense contemplated by the law of undue influence. It is quite clear that the decedent was a person who was easily influenced by the ornate ritualism of the Homan Catholic Church ; indeed, her early devotion at the St. Alban’s Church afforded sufficient evidence of that fact; but I am not warranted by any adjudicated cases, nor the opinion of an enlightened public, in holding that that indicates even a weakness of mental powers, nor am I able to see that her change of religious faith affords any reliable evidence of any mental alienation or impairment.
This litigation, perhaps unconsciously, has been intensified by an element of religious prejudice and intolerance, which, in its unrestrained supremacy, tramples relentlessly upon law, justice, and logic, and would run riot over precedents, principles and convictions ; indeed, if there is any passion of unregenerate, fallen humanity calculated more than any other to unsettle the judgment and to pollute the streams of judicial impartiality, and undermine even the social fabric, it is the indulgence of religious prejudice, bigotry, and controversy, and it is always to be regretted when it forms a constituent element of legal adjudication.
It should be remembered that the doctrine of presumption of undue influence has arisen from what is denominated the execution of undutiful wills, and
The decedent and the contestant were at its execution spinsters of advanced years, and it does not appear that either of them had near relatives, who might justly claim a share of their property. They were entitled to property yielding an income of about $15,000 a year, and half of which was ample for. the respectable maintenance of either. They entertained different religious views, and were members of different-church organizations, and some feelings of hostility had mutually resulted from that fact, and the will of their deceased sister had increased that difference.
The decedent had an. enthusiastic fondness for the Roman Catholic Church and for Mr. Bradley, a pastor, and when she made the provision that she did for the contestant she might well have supposed that she had made all the provision for her support and maintenance for the remainder of her years that was needful and proper; and if she was as devoted a Catholic as she professed to be, it was not unreasonable that she should manifest her interest in the charitable work of that church in her native city, as naturally she expected the contestant would do at her decease in behalf of the church and its charitable work to which she belonged. Judge Redfield, at page 526, in the first volume of his treatise, says, “That it must, always have considerable weight in favor of the validity of a will, where the testator lived many years after its
It seems to me pr iper to consider the fact that* the decedent executed the will offered for probate when undue-influence exercised by Mr. Bradley, then in Liverpool, seemed improbable, and that such a separation was more significant of free agency, than any lapse of time after its execution, and opportunity to change the will, free from the influences alleged.
Whatever may be said as to the means used or the" influence exerted to induce decedent to leave the Protestant Church and embrace the Roman Catholic . faith, it must be quite evident that, having remained a member of the latter church seven or eight years,, she must have emerged from Mr. Bradley’s influence,, if originally exerted, and become a free agent, capable • of exercising her own volition, especially as for a considerable period she was separated from him by a long distance. It is also worthy of observation that the decedent in all her numerous letters and diaries makes no suggestion of an effort on the part of Mr. Bradley* to induce her to do or omit to do anything against her will or*preference.
The history of the decedent’s following him to the orá
- I am not unmindful of the fact that the relation of priest and communicant, and, if you please, that of the-confessional, is one of peculiar significance. Confidence affords a very easy and apt opportunity for the exercise of influence, and doubtless none more potential than the Roman Catholic communion ; and hence, if such a priest should appear to have participated in such a will, or its preparation, which substantially conferred a personal benefit upon him, to the exclusion of the next-of-kin, presumably entitled to the bounty of the decedent, I should not hesitate to hold that there would arise from these facts and relation a presumption of undue influence, requiring a clear and satisfactory explanation, consistent
But I am of the opinion that such a presumption would not arise in a case where but a portion of testator’s fortune was given to a church or charitable person, even where the priest belonged to the church by which the charitable or church objects are fostered, for the reason that it is regarded by all intelligent persons, as one of the duties of a Christian minister zealously to present the claims of such establishments upon the liberality of Ills parishioners during their life, and at their decease upon their generous testamentary remembrance; and if such provision be not to the substantial deprivation of the next-of-kin having reasonable claims upon his bounty, it would raise no such presumption, but the contestant would be charged with the duty of proving such facts as would establish an improper influence exerted upon the mind of the testator. Hence I conclude that the mere fact that the decedent became a convert to the Roman Catholic Church under the ministerial influences of Mr. Bradley, and continued an" enthusiastic and devout worshiper in that faith, and made some of its charitable institutions, and a favorite priest therein, towards whom she had contracted an enthusiastic and demonstrative fondness, and another in whose church and by whom she was admitted to the new communion, the objects of her testamentary bounty,—raises no such suspicion as to the constrained testamentary purpose of the decedent, as to amount to undue influence as a matter of law.
But in reaching this conclusion I do not deem it necessary to pass upon the good taste or propriety of Mr.
I am, therefore, of the opinion - that the instrument propounded'as the'last will and'testament.of the decedent, is shown to have been -duly executed according to law, when the 'decedent was of "sound and disposing mind; and that the same was executed free from any undue influence, and should therefore be admitted as a will of real and personal estate.
Under section 11 of chapter 359 of' the Laws of 1870, certain questions of construction are raiséd by the contestant, as to the validity of some of the provisions of the' will, viz. : The righ t of the legatee and devisee, Bradley, as a- non-resident alien, to take either real or personal property ; also as to the validity of the concluding bequest, to the Roman Catholic Little Sisters of the Poor of the city of New York, an institution called the “ Home for the Aged of the Little Sisters of the Poor of the city of New York,” it being claimed that there is no-such-corporation entitled to receive the legacy; and' that, if such corporation existed, the provisions of the will-referred-to would be ■ void, under section 6 of the Act of 1848, chapter 319, because the will was not made at least two' months before the death of the testatrix.
The learned ■ counsel for the legatee, Bradley, objects to the authority of the Surrogate to construe' the instrument, for the reason that he alleges that the proper parties are not before the court, and that in a certain event the heirs of Bradley and of the contestant might
Until the act of 1870, Surrogates had no power to construe wills on probate, and I am informed that my predecessors never exercised the authority conferred by that act; and as that act seems not to be obligatory upon the Surrogate of this county, to whom the jurisdiction is limited, and as the Code of Civil Procedure, which will
The next point to be considered, is whether Mr. Bradley’s alienage forbids his .taking the income directed to be paid to him by the executor under the third clause of the will.
The proponent’s counsel claims that the executor by that clause is made an active trustee, and that the title to the property vests in him as such, and therefore a receipt through him as trustee is not obnoxious to the restrictions of the statute as to alienage ; while the contestant’s counsel claims that the clause in question only creates a passive trust, and if it shall be adjudged to be active, and therefore authorized by section 55 of 2 R. S., p. 1106, subd. 3 (6 ed.), yet it is a receipt of the proceeds of real estate, and comes within the spirit of the prohibition contained in section 6 above stated.
The language of the 3d clause, under consideration, is as follows:
“It is m'y will and desire that my executor hereinafter named pay to the Rev. Aloysius J. D. Bradley all the income derived from my estate, after paying the necessary expenses accruing thereon.”
The testator in that case gave to his wife an annuity of $700, to be paid by the executor out of her share of the rents of certain stores, of which she owned a moiety, and it was held that a power to receive the rents and profits was necessarily implied from the duty enjoined upon the executor to apply them. (See also Tobias v. Ketchum, 32 N. Y., 319 ; Betts v. Betts, 4 Abb. New Cas., 317, 385; Leggett v. Perkins, 2 N. Y., 297.)
It appears that the principal part of the decedent’s estate consists of real estate, and “ the income therefrom, after paying the necessary expenses accruing thereon,” embraces principally decedent’s real estate.
From the authorities above cited it is apparent that when the executors are directed to pay the income so derived, to Mr. Bradley, there is an implied power conferred upon the executor, within the third subdivision of section 55 of the Revised Statutes, above cited, “to receive the rents and profits of decedent’s lands, and apply them to (said Bradley’s) use during his life,” and thus an active trust is created within that statute.
The subdivision referred to provides that an express trust may be created to receive the rents and profits of lands, and apply them to the use of any person during the life of such person, or any shorter term ; hence there is nothing in that provision which intimates that a trust to receive and apply such rents may not be for
But it is claimed, by the learned counsel for the contestant, that the cestui que trust Bradley, though he ■receives the rents and profits through the intervention of •the trustee and executor, yet he receives an interest in the land, and is therefore prohibited by section 6 of the 'Revised Statutes, as an alien; but it has been shown that the third clause of the will creates an express trust.
By section 73 of the same statute, at page 1109, it is .provided that every express trust, valid as such in its creation, except as therein otherwise provided, shall vest '“•the whole estate in the trustee, in law and equity,” ¡subject only to the execution of the trust, and that the 'person for whose benefit the trust is created shall take no estate or interest in the land, but may enforce the •performance of the trust in equity.
This statute seems to remove the objection upon which •the statute prohibiting the conveyance or devise of real estate to an alien is based ; for the estate, both legal and equitable, being in a resident trustee, amenable to the ■control of our courts, there seems to be no more reason for excluding an alien from participation in the rents and profits of real estate through the intervention of a trustee, than there would be to his receipt of personal property by the same intervention, or his independent .ownership thereof.
■ Perry on Trusts, section 64, says, that if an alien is made cestui que trust of land, he may enjoy it against all but the state, “ but the state can at any time claim an equitable interest, and that this rule applies where a
Under these latter authorities,'the trust in question would have been held valid at common law, and, in order to avoid it under our statute, it is obvious that it should be brought substantially within its terms of prohibition, and from the reasoning already presented it is apparent that there is no title or interest in the land in question vested in the cestui que trust, Mr. Bradley. I am,
■ therefore, of the opinion that- the third clause of the will under consideration creates a valid trust in the executor for the benefit of Mr. Bradley, though an alien.
Ordered accordingly.