Forsyth v. Rathbone

By the Court, Sutherland, J. The testator directs his executor to sell all his real estate, not specifically devised to his widow, or grandchildren; and therefore all his real estate, except that so specifically devised, is to be considered as converted into money from the time of the testator’s death. (Stagy v. Jackson, 1 N. Y. Rep. 206.) The proceeds of the sale of the real estate is to go towards forming the general fund belonging to his estate, spoken of by the testator; and into the same fund, to increase it, is to go all his stock and property of every description, not specifically devised. The testator gives several pecuniary legacies to different relatives; an annuity of $5000 to his widow; an annuity of $3000 to his son Douglass; and upon the majority of the youngest child of his deceased son William, he gives the widow of William, in lieu of the rent of the stores in Albany, specifically devised to his grandchildren, the children of his son William, an annuity of $1000. These annuities are to be paid by the executor out of the general fund. The whole estate of the testator, other than that portion of it specifically devised, after the payment of the sundry small legacies to his relatives, is to constitute the general fund out of which the annuities are to be paid. By the sixteenth section of the will the testator, after the death of his wife, directs his executor to set apart from the general fund sufficient of the best and most reliable securities, from the annual profits of which, the annuities to Douglass and the widow of William are.to be paid. He then devises and bequeaths all the rest, residue and remainder of his estate, not otherwise devised or disposed of, by his will, “ to all his grandchildren, share and share alike.” The testator then repeats the same devise, in effect, in these word [406] s: And after the decease of my son Douglass and of my said daughter-in-law, all the rest, residue and remainder of my estate, whether real or personal, I give, devise and bequeath the same to all my grandchildren, to be equally divided between them, share and share alike.” After looking carefully at the whole will, and the conceded facts in the case I think the testator meant, by “ all my grandchildren,” the four children of his deceased son William, who survived the testator. The devise or bequest by the sixteenth section of the will, to the grandchildren, though in form a future devise or bequest, “ after the death of my wife,” and “ after the decease of my son Douglass and of my said daughter-in-law,” is in effect a present devise or bequest; and by it the four grandchildren of the testator, on his death, took equal vested interests. (Vanderheyden v. Crandall, 2 Denio 19, and authorities cited. Fearne’s Con. Bern. 368, &c.) • The sixteenth section of the will is, substantially and in effect, a bequest of the whole general fund contemplated by, and to be constructed under, the will, to the four grandchildren, in equal shares, subject to the annuities, and to the trusts and guardian care created by the will, and vested in the executor in and over the fund. If one of the grandchildren had died the next day after the testator, intestate, his or her share, or interest, would have gone to his or her next of kin, by the law of distribution, and not under any limitation or provision of the will; for there is no limitation or provision which could have carried it. It would appear from the fourteenth section of the will, the desire therein expressed that the executor should not hasten the sales of the real estate, and the direction for the reinvestment of the surplus income therein given, without reference to the codicils, that the testator probably intended that the division of the fund among .his grandchildren should be postponed until after the death of his wife, of his son [407] Douglass, and of the widow of his son William. But, whatever might "have been the construction of the will, as to this point, had there been no codicil, by the first codicil the testator, assuming that his wife would not survive either his son Douglass or William’s widow, expressly declares that “ upon the death of both of them,” the final division of his estate between his grandchildren shall be made. From the whole will, including both codicils, (for the seeond codicil points forcibly to the same intention,) I think it plain that the testator intended that the final division of the general fund, out of which the annuities were to be paid, should be postponed until after the death of the three annuitants. But this mere postponement of the division or possession of the fund itself did not, and could not, prevent the grandchildren’s interest in that fund, or their right to such future division and possession, from vesting absolutely in them on the death of the testator; and if such interest, or right, so vested, why can they not, as they severally attain their majority, absolutely alienate or dispose of such interest or right ? If the postponement of the final division, or possession of the fund itself, contemplated by the testator, is forbidden by any law . against perpetuities, such unlawful postponement cannot impair or affect the absolute bequest of the fund to the grandchildren; but the court should hasten the division; so that the grandchildren, as they severally attained their majority, would take his or her share of so much of the general fund as should not be wanted for the annuities; and as the annuitants severally died, so much of the fund as had been required for his or her annuity would be released for a division among the grandchildren. It is perfectly plain to me that the will creates a trust. The executor took, as executor, all the personal property, except that specifically bequeathed. The testator directs the executor sooner or later to sell all his real estate, except that specifically devised. The whole estate then, except that spe [408] cifically devised or bequeathed, is to be considered, in the hands of the executor, as money or personal property. His office as executor, and the duties imposed upon him by the will as such—:in providing for and paying the annuities; in reinvesting the surplus income, until the youngest grandchild should arrive at the age of twenty-one; and after that, in paying the whole income, except so much as should be required to j3ay the annuities, to the grandchildren, until the final division of the fund; and in malting such division— necessarily call for, and imply, a trust in the executor; and show that the testator intended that the executor should have the custody and management, and legal title, of the fund, until the final division; and that he should keep it together until such final division. Being a trust of money or personal property only, and not for any illegal purpose, unless perhaps an unlawful accumulation of interest or income, the trust is not affected by the provisions of the revised statutes abolishing trusts except' certain express trusts, which apply only to real estate, and is valid for all purposes except such unlawful accumulation. But, although valid, I do not see how it can render the vested beneficial interests of the grandchildren inalienable; or has any bearing on the question of perpetuity. Section 63 of the article of the revised statutes concerning uses and trusts, making the interest of a person beneficially interested in a trust for the receipt of the rents and profits of lands, inalienable, (1 R. S. 730,) applies only to the interest of a person beneficially interested in a trust for the receipt of the rents and profits of lands, and not to the interest of a person beneficially interested in a trust for the receipt of the interest or income of money or personal property. Hone of the provisions of that article apply to personal property. (Kane v. Gott, 24 Wend. 661. Savage v. Burnham, 17 N. Y. Rep. 571.) By section 1 of the title of the revised statutes concerning the acchmtilations of personal property, and of expectant estates in such property, the absolute ownership of personal [409] property shall not be suspended by any limitation or condition whatever, for a longer period than during two lives in being, &o. And section 2 declares that limitations of future or contingent interests in personal property shall be subject to the rules prescribed in relation to future estates in land, [New York General Term, October 9, 1860. The interests of the grandchildren in the general fund, or the income thereof, given to them by this will, are not future, or contingent, but present and vested. It would appear that the absolute ownership of personal property can only be suspended by means of a contingent limitation of a future estate or interest. There is no contingent limitation of any future estate or interest, by this will. There is an unlawful accumulation of interest or income intended and directed by the will. The testator directs the surplus interest or income to be accumulated for the benefit of all the grandchildren, until the youngest attains his or her majority. Such accumulation, if fully carried out, would not be for the benefit of minors, exclusively. The direction is therefore void, so far as it directs an accumulation for the benefit of any of the grandchildren, after they have attained their majority. But this direction for an unlawful accumulation does not affect the validity of the bequest of the fund, or of its surplus income, to the grandchildren. As the grandchildren severally attain their majority they will be entitled to their share of the surplus income, notwithstanding the direction for accumulation. My conclusion is that the whole will is valid, except this direction for accumulation for the benefit of grandchildren after they have attained their majority; and that the judgment of the special term should be affirmed in all respects except in adjudging all the provisions of the will to be valid. Sutherland, Bonncy and Leonard, Justices.]