Bean v. Bowen

Morgan, J.—There is no dispute as to the facts of this case. The testator’s estate was of the value of about $8,626.74; his real estate, consisting of a house and lot, was of the value of $3,000. He bequeathed the use of his real and personal estate to his wife, in case she survived him, during her natural life, and so much of the principal as might be necessary for her comfortable support. He then gave legacies of $100 and $400 to Minnie Gray, which are admitted to be valid. Next he gave legacies of $2,000 each, to three theological institutions, to be paid in the order named. Hext he gave specific legacies of certain books to two institutions named, of no great value. As these legacies amounted to $6,500, the personal estate, liable to be diminished by the bequest to the testator’s wife, would not be sufficient to pay them, unless it were suffered to accumulate according to the directions of the testator in the ninth clause, or unless it should be increased by adding to it the proceeds of the sale of the real estate. The testator, however, made ample provision for the creation of a fund sufficient to pay these legacies; and, anticipating a residue, made provision for the disposition of that also. His wife having died prior to his death, no question can — 325 — arise as to the bequest to her. ¡Nor is it perceived how the bequest of a life estate to her can affect the validity of the subsequent provisions of his will. , It might have been an interesting inquiry, if she had survived the testator, to ascertain in whom the reversion of the real estate vested; because it was not devised, in terms, to any one, and it certainly could not be in abeyance, awaiting the action of the executors to convert it into personalty. The whole question in dispute arises out of the provisions of the ninth clause of the will. By that clause the executors are directed, as sooñ as convenient after the death of the testator and his wife, to sell all his real and personal property, except his United States bonds and his stock in the Skaneateles Iron Works, and invest the proceeds for accumulation, and to hold the whole amount, including the bonds and stock, for accumulation for five years. The executors are then directed, after the expiration of said five years, to convert the said, accumulation into cash (except the stock in the Skaneateles Iron Works), and to pay the three legacies of $2,000 each to the three theological institutions in the order named, so far as said accumulation shall provide for such payment. They are directed to hold the stock in the Skaneateles IronWorks five years longer; and, at the expiration of that period, the said stock and the accumulations thereof are to be converted into cash by the executors, and the remaining portion of the three legacies above mentioned paid. Afterward, on a final settlement of the estate, if there are sufficient funds, the executors are required to-give Minnie Gray an additional $500, if in their judgment she shall have used the previous bequest in a careful and prudent manner ; and the residue, after payment of all the previous bequests, the executors are directed to divide equally between three religions societies therein named. It will therefore be seen that, as to.the real estate, the testator, without any words of gift or devise, clothes his executors — 326 — with a power of sale, and they are to take the proceeds as personal property. After realizing the cash from a sale of the real and personal property, they are directed to hold it five years for accumulation, and then convert it again into cash and pay the three legacies of $2,000 each in the order named, so far as said accumulation shall provide funds for that purpose. Of course this fund must be under the control of the executors, and must be invested, collected and reinvested in their names. In my opinion the authority given to sell the real estate is a power m trust, and the proceeds of the sale of both the real and personal property are by necessary implication given to the executors, m trust, to manage for the purpose of raising a fund out of which to pay the $6,000 in legacies, limited to take effect after five years; and the contingent legacy to Minnie Gray, and the residuary legacies, to take effect, if at all, after a? term of ten years. It is admitted that the direction for accumulation must be regarded as illegal and void. In that ease the annual income would belong to the next of kin or the residuary legatees. ’ If it should be determined that it belonged to the residuary legatees, the testator would succeed in evading the statute, for he would .be allowed to do indirectly what he is not permitted to do directly. A great many questions may arise out of the peculiar provisions of this will which it will be unnecessary to determine, as I have arrived at certain definite results which will dispose of the case and which I will proceed to state. (1.) Although there is no trust term granted to the executors, in words, such a term is necessarily to be implied. The directions to sell the real estate and to convert all his property into cash (with certain exceptions), and to hold the proceeds for a term of five years, with directions to invest the same in the meantime, and after payment of certain legacies to hold his stock in the Skaneateles Iron Works five years — 327 — longer, and after paying the balance of the three legacies of §2,000 each, to divide the residue, which they may diminish by an exercise of discretion in giving another §500 to Minnie Gray, impose upon the executors active duties as trustees of his estate, as much as though' the testator had, in terms, described them as such. The executors necessarily took the legal title and the right to the possession of the property, if the directions of the testator can be sustained according to ■ his manifest intention. Even as to real estate, courts have implied an estate in the executors as trustees, although no estate was given to them in words (Perry on Trusts § 313; Hill on Trustees, 231, 239; Brewster agt. Striker, 2 N. Y., 19). And certainly there is no reason why the executors should not be deemed to have the legal title to the personal estate when similar duties are enjoined upon them (See Knox agt. Jones, 47 N. Y, 396). Personal property is subject to trusts as well as real estate, and the statute of perpetuities can no more be violated in the disposition of personal property than of real estate. (2.) The trust estate given to the executors cannot be sustained. It is limited to five years and ten years, and such a term is unauthorized (Hone agt. Van Schaick, 7 Paige, 233).. (3.) The gifts of the three legacies of §2,000 each are limited to take effect after a prescribed period of accumulation, and to be paid out of the accumulated fund as part of the subject matter of the gifts. The period being too remote, the gifts must fail (Perry on Trusts, § 396). Legacies dependent on a void trust fall with it (Arnold agt. Gilbert, 3 Scmd. Ch. P., 531; Armory agt. Lord, 9 N. Y., 403). A gift is too remote, unless, according to the intention of the testator, some person must necessarily be in. existence with legal power to dispose of the property within the period limited by the rules of law (Curtis agt. Lunkin, 5 Beav., 147; Palmer agt. Holford, 4 Russ., 403). If the trust exceed this boundary, it is void in toto, and cannot be cut down to the- legitimate extent (Lewin on Trusts, 71, 72). — 328 — The gifts in the second clause, of $100 and $400 to-Minnie 'Gray, are entirely separable from the legacies subsequently ■given, and also from the trust scheme, and may be sustained; for the statute against perpetuities only cuts off estates which .■are limited to take effect after the prescribed limit (Denio, J., in Post agt. Hover, 33 N. Y., 598). ■(4.) As the trust must be declared void for contravening the statute of perpetuities,.the real estate of the testator will ■descend to his heirs-at-law (1 P. S., 123, § 14; Post agt. Hover, supra, 599). And of course the personal estate must be distributed to the next of kin: (5.) These conclusions have been arrived at, although the decisions cited by the counsel for the legatees clearly show ■that in construing wills the' court is at liberty to reject the •direction for accumulation. If there was a valid trust, the gift might take effect by rejecting these directions; but the difficulty is, that the trust is in direct contravention of the ' statute of perpetuities, and the legacies of $2,000 each, as well as the contingent legacy, are only to take effect upon the termination of a trust which is void. If the gifts are paid, they must be paid by the executors after five and ten years, for the period cannot be shortened ; and they cannot be paid out of the fund provided for that purpose by the testator, but in due course of administration. This would entirely defeat the scheme devised by the testator for the disposition of his estate; and I do not think the courts are at liberty to strike out the trust term, as well as the directions for accumulation, for the purpose of paying legacies which are made dependent upon it. g This would not be carrying out the will of the testator, but, in effect, making a new will. If I am right in these conclusions, the result will be that ■the executors had no authority to sell the1 real estate for the purpose of creating a fund as directed by the testator; nor was there any valid conversion of the real into personal estate. It was not the intention of the testator that the real estate should be converted into money for the purpose of distribu — 329 — tion among his next of kin. There could he no conversion legally effected for the purpose of funding the trust estate; and no other object was contemplated in authorizing a conversion. The bequests to Minnie G-ray of $100 and $400 are valid and should be paid out of the personal estate. The specific bequests of books in the seventh and eighth clauses of the will are also valid. The other legacies must fail with the void trust, upon the termination of which they were to take effect. Judgment must be entered accordingly.