Loring v. Blake

Wells, J. The only question which seems now to arise, in regard to the estate of Mrs. Blake, is whether the limitations she has provided are void for remoteness. In order to give all those provisions effect, may it require, in any contingency, that the ultimate disposition of the estate should remain in suspense for a period beyond lives in being and twenty-one years ? The trustees are to hold during the life of each child, and of any surviving husband or wife. Upon the decease of any child, “ without a husband or wife, or upon the subsequent decease of such husband or wife,” the trustees are “ to hold the portion of such child” “to the use of his or her children, their heirs,” &c.; and “ if, at the decease of any child, his or her husband or wife, as the case may be, there should be no issue of such child living,” then to such person as such child should appoint by testamentary writing; or, in default of appointment, “ to such persons as would have been my heirs at law had I then died intestate.” It was possible that a child of Mrs. Blake might marry a person not in being at the time of her decease; and that such person might be the survivor of the marriage. In that case, a limitation of her estate, not to take effect until after the decease of such unborn person, would be in violation of the rule against perpetuities; because it would not be supported by the definite measure of a life or lives in being and twenty-one years. By Mrs. Blake’s will the ultimate enjoyment and possession of the estate is thus postponed. The rule however regards, not the possession, but the title or absolute right. If that vest within the prescribed period, the rule is satisfied. It is necessary therefore to measure with precision the force and effect of the terms by which the limitation of the ultimate interest ia made. — 260 — It will be seen that while there is an alternative as to the tim of enjoyment, depending upon whether a husband or wife shall survive the child of Mrs. Blake, this alternative affects only the time of such enjoyment or possession. In expressing the interest to be transmitted, and the objects who are to receive it, the same language is made applicable to either alternative. “ The portion of each child ” is to be held “ to the use of his or her children, their heirs,” &c. Applied to one alternative, this can only refer to children who should be living at the decease of any child of Mrs. Blake, and must embrace all the children of such parent. There is nothing to require a different application of the term “ his or her children ” in the other alternative, nor to show that the same identical persons were not intended in the one case as in the other; nothing to indicate an intention to make the interests of her grandchildren contingent upon their surviving such husbands or wives of her children. The enjoyment is postponed to enable the surviving husband or wife to receive the income during life; but the title, the absolute interest in remainder, is fixed at the decease of the child of Mrs. Sally Blake. This construction is, at least, in accordance with the manifest intent of the testatrix, and is effectual to accomplish the purpose she had in view; while the other construction, making the ultimate interests of the grandchildren await the decease of a surviving husband or wife, and remain contingent meanwhile, would defeat that purpose, by creating a perpetuity which the law would not sustain. In such a case, the court is bound to adopt that construction which will sustain the will and effectuate the objects of the testator. Upon this interpretation of Mrs. Blake’s will, the whole interest in each share of her estate will become vested absolutely at the decease of the child for whose benefit the share was set apart. If there are issue living, it vests in such issue, subject to a life charge for the benefit of a surviving husband or wife. If no issue, then it vests at once,'either by appointment under the power, or in the persons who would stand in the relation of heirs to Mrs. Blake, if she had then died intestate. All these interests will therefore be supported by a life in being, namely, the life — 261 — of the child of Mrs. Blake, for whom the share is set apart. The limitation of a life interest to a surviving husband or wife, who may not have been born at the time of Mrs. Blake’s decease, does not tend to make a perpetuity; because that interest, although contingent during the life of the child of Mrs. Blake, becomes vested at the death of such child; and the limitation over, as we have already seen, is not at all dependent upon such life interest, but itself also becomes vested absolutely at the same time. 1 Jarman on Wills, (4th Am. ed.) 241, 265. In executing the powers under the will of Joshua Blake, Mrs. Blake makes the same limitations as in disposing of her own estate, with the single difference of substituting heirs of Mr. Blake instead of her own heirs, in case of the death of any child without issue and intestate. Of course his estate must vest, under such an execution of the powers, at the same time with that of Mrs. Blake; namely, each share at the decease of the child for whose benefit it was directed to be set apart; that is, at the end of a life in being at the time of his decease. The objection of remoteness is not applicable therefore to the disposition of his estate. The interpretation which we have adopted frees the further consideration of the case entirely from difficulty on this ground. But surviving husbands and wives, to whom Mrs. Blake limits an interest in the several shares appointed to the children, are not objects of the powers which she is authorized to execute. They cannot therefore take such interest by way of appointment. The range of objects extends only to children and such issue as should be living at the decease of Mrs. Blake. The limitation made by her extends to all issue of any child, living at the decease of such child. But grandchildren, born after the decease of Mrs. Blake, would be excluded from the range of objects to which the powers applied, and could not take by appointment. It is urged, upon the one hand, that in so far as the exercise of the power of appointment by Mrs. Blake is excessive, it is merely void, and, being separable from that which is authorized by the power, it may be rejected, leaving the rest to stand. On — 262 — the other hand, it is argued that the dispositions which Mrs, Blake has made of her husband’s estate are so blended together the good with the bad, that it is impossible to separate them that her arrangements all constitute one scheme, the various parts of which are so inter-dependent that to reject a part and sustain another part would more completely defeat her purposes than it would to reject the whole; that even the life interests in the children ought not to be sustained without the rest, because the remainder of each share would, at the decease of the child to whom it was appointed, become distributable, as unappointed estate of Joshua Blake, among all his children; thus giving to the longest livers of them an undue share of his estate, contrary to the intent both of himself and of Mrs. Blake. There certainly would seem to be no great difficulty in separating that which is well executed by Mrs. Blake from that which is unauthorized, by rejecting her provisions for surviving husbands and wives, and also for such grandchildren or issue as were not living at her decease. If the question were merely between disappointing a part only of the objects of her favor, and defeating altogether the direction she intended to give to the estate at her disposal, we cannot doubt that it would be the duty of the court to make the separation, and give effect to her dispositions of the estate so far as they were well made in accordance with her power. Sugden on Powers, 503, 506-7. But where the estate, in the absence of any direction by the donee of the power, would be cast more nearly in the same manner she has attempted to transmit it, than by giving effect to a part only of her directions, it is difficult to say that such partial execution would accord with the intentions of the testatrix. The will must stand upon the supposed intentions of the testatrix, as well in the testamentary appointments as in the direct gifts of her own estate. If the rejection of those parts which are unauthorized will break up the general scheme or main purposes of her dispositions, then it will operate to defeat and not to effectuate the intentions of the testatrix, if the court sustain such parts only as conform to her authority. Treating the limitations contained in Mrs. Blake’s will as appointments of — 263 — interests, by way of exercising her power to direct and appoin proportions or shares among the children of Mr. Blake and their issue, the rejection of that which is excessive must operate to defeat her intention, not only in respect to those provisions which fail, but in respect to the entire disposition of the estate. But we are not satisfied that such is the character of these provisions, nor that they were so intended. By the will of Mr. Blake his estate was placed in trust. The trustees had but two directions in relation to the final disposition of property in their hands; first, to pay the income to Mrs. Sally Blake during her life; second, to “ convey, assign, deliver or pay ” the principal to her appointees, or, in default of appointment, to his children. This would all be accomplished, and their trust terminated at Mrs. Blake’s decease. They were clothed with no title nor authority to serve any postponed interests or subsequent limitations. If the nature of Mrs. Blake’s appointments should require the property to be held in trust after her decease, it was to be by trustees of her appointment, to whom the trustees under the will of Mr. Blake were to “ convey, assign and deliver,” at her decease. Such part of bis estate “ as shall not be so embraced ” in any direction or appointment by Mrs. Blake, and the whole, in default thereof, was to be held to the use equally of all his children living at the decease of Mrs. Blake, and the issue of any deceased, deducting advancements. Mrs. Blake was clothed with a power of revocation and appointment to a larger class, embracing as well issue of children as children living at her decease; or to a smaller class, being “ such of them as she shall direct.” Having these for her range of objects, her power was to “ direct and appoint ” the “ proportions ” in which the trustees under the will of her husband should “ convey, assign and deliver ” his estate to such of them as she should select, or to trustees for their benefit. In addition to this power, the will of Mr. Blake contains another, to be exercised by Mrs. Blake in case she should determine to place any share in trust. By following back the reference indicated by the adjunct “ as aforesaid,” we find that the trust was to be for the benefit of the object selected to receive anv — 264 — share or “ proportion ” of the estate, “ upon such trusts and conditions and for such purposes as the said Sally shall in like manner, direct and appoint.” From the natural import of the terms, the inference would seem to be that the first of these provisions was intended to authorize Mrs. Blake merely to control and direct the distribution of the property itself—the substance of the estate — and not to limit qualified interests in it. Still the language may bear a construction that would warrant an appointment by assigning life interests to some and remainders to others among the proper objects of the power, provided such were the manifest intent and purpose of the testatrix in executing the power. Turning then to the will of Mrs. Blake, we think it is apparent, from the form and language in which she proceeds to execute the powers, that she adopted the natural and limited purport of the one first referred to above; and that in prescribing the limitations of interests under the trust which she created she had reference to and was attempting to exercise, not that power, but the other, which authorized her to direct and appoint the trusts, conditions and purposes for which the property should.be held by her trustees. Her execution is marked by a division corresponding to the two distinct powers confided to her. First, she directs and appoints that the property be divided into equal shares, corresponding to the number of the children, excluding issue altogether, unless by representation of a deceased child; “ which portions,” she declares, “ shall be severally set apart for the benefit of each of them respectively.” Second, she appoints and directs “ that the share of each child shall be held and invested in trust,” “ upon the same trusts and for the same purposes” as are declared concerning her own estate. Construing these two clauses by their own phraseology, without reference to the manner in which she disposes of her own estate, there would be little doubt that the first clause was intended to execute the power to direct and appoint the “ proportions,” and to select the objects for whose benefit they should be set apart; while the second had reference solely to the othe' — 265 — branch of the power, namely, to create a trust and direct the trusts, conditions and purposes thereof. Her limitations of interests to parties other than appointees of shares cannot be sustained ; because the trust is to be declared only “ for the benefit of such” appointees; and her power, to appoint the trusts, conditions and purposes, cannot be used to change or enlarge the class of those who are to take as cestuis que trust. It is equally impossible, as we have seen, that they should be sustained as appointments of “ proportions” of Mr. Blake’s estate. If the proposed beneficiaries were all within the range of objects designated by him, it might be proper to assume a construction of Mrs. Blake’s will, in favor of her manifest general intent, that would give effect to her dispositions of the estate. But such is not the case. The range of objects, to which these remainders are limited, not only may include issue not living at Mrs. Blake’s decease, but such after-born issue may alone be living to take, under the limitations thus made. It seems to us clear, therefore, that the limitations to grandchildren generally cannot be treated as good appointments of “ proportions ” to grandchildren only who should be living at the decease of Mrs. Blake, without doing violence to the intent of the testatrix, and adopting a mere factitious construction. The result at which we arrive is, that the power to select the objects, and to direct and appoint the proportions of Mr. Blake’s estate to be conveyed, assigned and delivered to each, was fully and properly executed by Mrs. Blake: 1st, by selecting children only, and issue of deceased children, by representation, as objects; 2d, by appointing equal shares to each, without deduction for advancements, and directing these shares to be “ severally set apart for the benefit of each of them respectively; ” 3d, by directing the several shares to be placed and held in trust. Upon the shares so apportioned and appointed, the will of Mr. Blake operated to vest in the several appointees the entire interest and title to their respective shares. In the execution, by Mrs. Blake, of the other power, — to direct and appoint the trusts, conditions and purposes, upon which the shares should be held, — she could not divest nor limit — 266 — the interests of the appointees, nor deprive them of the fui. benefit thereof. She could impose conditions and declare purposes and trusts for the security and protection of the fund against loss, improvidence, alienation, anticipation of income, control or interference of husband, &e.; but the trust itself continues only during the life of each appointee, and might be terminated at any time, by the joint action of the trustees and the cestui que trust. Upon the decease of each child of Mr. Blake, the entire interest will pass to the heirs or devisees of such child, or be distributed under the statute. No right of dower attaches to real estate thus held in trust; but a surviving wife takes an interest in so much of the fund as consists of personal estate, in the same manner as if no trust had existed. The interest of the surviving husband of Mrs. Austin, having been adjusted by indenture of the parties, need not be further considered. As the entire interest is in the appointee as cestui que trust for life, with remainder absolute, the conversion of real property into personal, by the trustees, can give rise to no question. The property will pass according to its character in fact, as realty or personalty, at the time the descent is cast. As the trust is terminated, so far as relates to the shares of the estate of Joshua Blake, held, under Mrs. Blake’s appointments, for Charles S. Blake and Mrs. Austin, the parties now interested are entitled to a decree for the transfer of the property in accordance with the foregoing conclusions. The shares of Mrs. Blake’s estate, held for the same children, will continue in trust, and the income be payable to the surviving husband and wife during the life of each, in accordance with the directions of Mrs. Blake’s will.