text:
    Eckford and others, executrix and executors of Eckford, vs. De Kay and wife and others.
    Where E., the executor of D. his son-in-law and guardian of his infant grand daughter, received and applied to his own use monies which by the will of D. belonged to such grand daughter unless she should die under age without issue, but which upon the happening of that contingency belonged to her mother in fee in case she survived, and if not to E. himself in fee; and E. having become embarrassed in his pecuniary affairs made a conveyance of certain lands in New-York to his daughter in fee, in trust for J. H. D., the grand daughter, and her heirs and assigns forever, provided she did not die under age without leaving issue; but if she died under age and without issue, then for the sole use of her mother and her heirs and assigns; and the deed recited his appointment as executor of D. and as guardian of J. H. D., and that as such executor and guardian he was in. debted to the estate of B. in the sum of $27,000 for moneys received by him on account thereof; in consideration of which indebtedness, and of the sum of $10 paid by his daughter, the grantee, he conveyed, &c. Held, that such conveyance upon its face was an absolute deed, and not a mortgage; and that it was not an executory trust to sell the premises and raise t]ie $27,000 out of the proceeds thereof for the benefit of B.’s estate; but that the interest created by the deed was an executed trust, and that the deed not only conveyed the absolute legal estate to the trustees but the whole beneficial interest in the whole property to the ccstuis que trust.
    Where the guardian of an infant invests the property of his ward in real estate in the name of such ward, without authority, or conveys to the ward real estate in payment of a debt due from himself, without the sanction of of the court of chancery, the infant upon arriving at the age of twenty-one has the right to elect to keep the property thus conveyed in lieu of the debt, or may repudiate the conveyance and claim the money and interest.
    January 21,
    The bill in this cause was filed by the executrix and the executors of Henry Eckford, deceased, who were also the trustees of his real estate under his will, for the purpose of redeeming a lot of land in the city of Hew-York, containing about nine acres, conveyed by the testator to Mrs. Drake, in August, 1826, in trust for his infant grand daughter, now the wife of the defendant G. C. De Kay; which conveyance as the complainants alleged was intended to be a mortgage merely. G. C. De Kay put in his separate answer, and his wife, who was then an infant, put in her answer by her guardian ad litem. The children of Mr. Eckford, who had a common interest with his executors and trustees in having the conveyance declared a mortgage, were also made defendants, and appeared and answered the bill. And the cause was heard on pleadings and proofs as to all the parties.

      F. B. Cutting, for the complainants.
    The conveyance of the 14th of August, 1826, from Henry Eckford and wife to Sarah Drake, set forth in the pleadings, is upon its face, and without reference to extraneous circumstances, a security for the indebtedness therein recited. The facts and circumstances shew that it was not executed upon any negotiation, bargain or treaty for the sale of the premises therein mentioned, but that it was understood, intended and treated by the parties thereto as a security for. an antecedent indebtedness, and not as an absolute conveyance. A right of redemption is incident to every contract for the security of a debt by the conveyance of real estate. The complainants ought to be permitted to redeem upon payment of the principal and interest of the debt due by the estate of Mr. Eckford.

      N. Dane Ellingwood, for G. C. De Kay.
    The deed in controversy in this cause being absolute upon its face in trust for an infant, no parol defeasance to make it operate as a mortgage can be admissible as against such infant, or against a subsequent purchaser for a valuable consideration without notice. If, however, such parol defeasance were admissible, the fact of its existence is not admitted in the pleadings, nor proved by the evidence. Independent of the evidence contained in the deed itself, there is evidence aliunde before the court to show, that such deed was intended to operate absolutely.

      Theodore Sedgwick, jun. for Janet H. De Kay.
    This is not a case where parol proof can be admitted to contradict a deed or if admitted at all, it must be of the strongest character possible. The testimony of the witness Jane Black must be excluded on the ground of interest. The evidence produced by the complainant is wholly at variance with the allegations of the bill, and must therefore be rejected as irrelevant. If the testimony is admitted, it goes only to prove that the deed in question was a fraudulent conveyance intended to defeat creditors ; and neither the grantor of such an instrument nor his representatives can be permitted to avail themselves of such a defence, as against the grantee or those claiming under the grantee. There is no evidence to support the bill, and it must consequently be dismissed.
   The Chancellor.

Although this case involves a very large amount of property, there is, with a single exception, very little dispute in relation to facts. The documentary and other evidence, independent of the disputed fact as to whether there was an actual agreement between the parties to the deed of August, 1826, contrary to the terms of the conveyance upon its face, are briefly these. In October, 1816, Dr. Joseph Rodman Drake, who will be remembered as the talented author of The culprit Fay,” long after the valuable property in dispute in this cause shall have passed into the hands of strangers to his blood and to that of his enterprising father-in-law, intermarried with the daughter of Mr. Eckford. Shortly after the marriage, the doctor having little or no property, Mr. Eckford set him up in business as an apothecary, and conveyed to him two houses and lots in New-York, the one in Chat-ham Row and the other in Grand-street. The nominal consideration in the conveyance was $15,000 ; but it was in fact an advance to him, or a deed of gift; the situation of the grantor’s property being unquestionably such at that time as to justify him in making such an advance to his son in law, without injustice to his creditors or to other members of his family who might have claims upon his bounty. Dr. Drake died in September, 1820, leaving his wife surviving him, and an only child, now the wife of the defendant G. C. De Kay, then an infant under two years of age. By his will which was made a few days before his death, he bequeathed to his sister a demonstrative legacy of $2500, and to a friend a similar legacy of $400, payable out of the proceeds of his store of drugs and medicines, and to his wife a specific legacy of his household furniture and plate. All the residue of his estate, real and personal, he gave to his daughter in fee, provided she should not die under age without leaving issue; and if she did so die, then he gave the same to his wife in fee. And in case his wife died first, and the daughter died under age without issue, he then gave the property to his father-in-law in fee; and if he by reason of death was at that time incapable of inheriting it, then to his children. He also appointed his wife and her father the executrix and executor of his will, and testamentary guardians of the person and estate of his daughter during her minority. They proved the will and assumed the execution of both trusts ; but as the complainants allege in their bill, the personal estate of the decedent was barely sufficient to satisfy the demonstrative and specific legacies. And this was probably so ; though it does not distinctly appear what his personal property really was—no inventory thereof having been filed. Nor does it appear what became of the furniture and plate bequeathed to Mrs. Drake, after her death. When Dr. Drake died, his wife and daughter went into the family of Mr. Eckford to reside, and continued there as a part of his family; the former until her death in November, 1828, and the latter until his death about four years after that. As the testamentary guardian of his grand daughter, Mr. Eckford received the rents of the house and lot in Chat-ham Row until it was sold in 1822, and of the house and lot and Grand-street until the time of his death. He and his daughter Mrs. Drake, as the guardians of his infant grand daughter applied to Chancellor Kent for leave to sell the first mentioned house and lot, and obtained an order authorizing such sale. They sold it in January, 1822, for $20,000, and conveyed it to the purchaser; by which conveyance they also released their respective contingent interests in the property, under the will of Dr. Drake, and she also relinquished to the purchaser her right of dower in the same. The purchase money upon the sale was received by Mr. Eckford; but instead of investing it upon bond and mortgage for the benefit of the infant, and making a return of such investment under oath, as required by the order of the court, and paying over the interest of one third of the fund to Mrs. Drake for her dower during her life, he kept and used the money himself, in violation of his trust as the special guardian under the statute. On the 14th of August, 1825, finding himself embarrassed and in danger of losing all his property by the failure of the Life and Fire Company, of which he was president, and which had issued bonds to a large amount, and being then indebted to the estate of Dr. Drake in the sum of $27,000, he made the conveyance in question to Mrs. Drake, in.trust for herself and her infant child ; and caused it to be put on record, the same day, as an absolute conveyance.

This deed, in which Mrs. Eckford joined as one of the grantors, was probably drawn by Mr. Tillou, one' of the complainants, who witnessed and took the acknowledgement thereof, and by whose request it was recorded as appears by the transcript; as the testimony of Mr. Cutting shows that Mr. Tillou was at that time the attorney of Mr. Eckford and attended to his business of that description. That Mr. Tillou did not suppose he had drawn an instrument to be executed by them which was upon its face a mortgage, as now contended for by his counsel, is evident from the fact that it was not registered as a mortgage. It recites the appointment of Mr. Eckford and Mrs.Drake as the executor and executrix of the will of Dr. Drake and the guardians of his infant daughter, and that Eckford, in his capacity of executor and guardian, was indebted to the estate, for monies received by him on account thereof, in the sum of $27,000, in consideration of which indebtedness and of the sum of $10 paid by the grantee, the grantors conveyed the premises to Mrs. Drake in fee, in trust for her daughter Janet H. Drake, and her heirs and assigns forever, provided she should not die under lawful age without leaving issue; but if she should so die under age and without issue, then in, trust for the sole use of Mrs. Drake, her heirs and assigns forever. This conveyance therefore, upon its face, is not a mortgage. Nor is it an ex-ecutory trust to sell the premises and raise the $27,000 out of the proceeds of the sale for the benefit of Dr. Drake’s estate ; which would have been a conveyance in the nature of a mortgage, as the grantors in that case would have' been entitled to the surplus proceeds of the sale as a resulting trust. On the contrary it was an executed trust, and the deed not only conveyed the absolute legal estate to the trustee but the whole beneficial interest in the property to the cestuis que trust. And so far as Mrs. Drake, the grantee, was interested in the estate of her former husband, or in the fund raised by the sale of the house and lot in Chatham Row, the acceptance of that deed was an absolute bar, upon her part, of all claim upon her father on account of the $27,000 previously due from him to the estate. It would also have had the same effect as to her infant daughter, if Mrs. Drake had obtained the sanction of this court to the arrangement which she made, with her father, for the benefit of that daughter as well as herself. But as the guardians had vested the fund, in which this infant daughter had an interest, in the purchase of this real estate without the previous sanction of the court, she would of course have the right, when she became of age, if this court in the meantime had not made the election for her, to repudiate the deed ; and to claim her share of the $27,000 and interest, from the estates of her guardians, or from their sureties: But if she elected to accept the estate or interest conveyed for her benefit, by the trust deed, which estate became absolutely vested in her as a legal estate by the death of her mother in 1828, that election would of itself be a bar to any claim against the estates of her guardians for any thing received by them from her estate previous to the execution of that deed. (Overback v. Heermance, Hopk. Rep. 337.)

It does not appear from any thing in this case whether the interest which the infant was to derive under this conveyance was or was not a fair equivalent for her interest in the fund which formed the consideration of the deed ; as the actual value of the premises in controversy at the date of the deed does not appear. The consideration mentioned in the conveyance from the insurance company in March preceding is $12,000. But whether the premises were actually bought for that sum at the date of that deed, or whether that was the mere consummation of a previous agreement for the purchase does not appear. And the fact that Mr. Smith, the street commissioner, estimates the premises as worth about $70,000 in 1831, and more than treble that sum when he was examined in December, 1835, is pretty strong-evidence that Mr. Eckford considered them a fair equivalent for the interest of his daughter and granddaughter in the $27,000, due from him to Dr. Drake’s estate in August, 1826.

It must be recollected also that as he was giving to his daughter and grand-daughter a greater interest in the property conveyed than they had in the $20,000 which was produced upon the sale of the house and lot in Chat-ham Row, he would not have been justified in conveying to them property of the value of $27,000 at that time, considering his embarrassed circumstances; as that might have been a fraud upon his creditors. The $20,000 had been raised by the conveyance of his contingent interest in that house and lot under the will of Dr. Drake. He had therefore the same contingent interest in the fund as he had in the real estate sold, under the provisions of the act of March, 1815; (Laws of N. Y. Sess. 38, ch. 106, § 5;) although the children of Mr. Eckford, whose contingent estate in the house and lot was not affected by the sale, had no interest in the fund raised by that sale. The grand-daughter was at that time but seven years of age ; and if the health of Mrs. Drake was infirm the chance that the whole capital of the $20,000 might belong to him by the happening of the contingency contemplated in the will of Dr. Drake, was something more than a mere possibility. And as he relinquished that right and gave to the grantees, together, the whole interest in the property conveyed, so that upon the death of Mrs. Drake her daughter took an absolute title discharged of his contingent claim, a corresponding deduction in the value of the property conveyed in satisfaction of the $27,000 was perfectly proper. The trusts in the deed are in another respect inconsistent with the idea that it was intended to be a mere mortgage, for the purpose of securing to the mother and daughter the interest in the fund which they had before that conveyance was executed. The recital in the conveyance is that Mr. Eckford has received the $27,000 as executor and guardian •, and the bill alleges that the personal estate was barely sufficient to pay the demonstrative and specific legacies. The residue of the fund beyond the $20,000 must therefore have been the infant’s two-thirds of the rents of the two houses and lots of which her father died seized, and of her two-thirds of the interest on the monies raised by the sale of one of them, from the time of such sale, with perhaps some trifling addition for a surplus of the personal estate beyond the amount of the legacies. Estimating the house and lot in Grand street at $7000 as stated in the proofs, and the other at the value at which it was sold, and computing the rent to be equal to seven per cent on that amount, it will be seen that the infant’s two-thirds of the rents and of the interest on the $20,000 from the death of Dr. Drake to the date of the deed of trust, would amount to about the sum of $7000 exclusive of the widow’s dower. And as that fund belonged to the infant exclusively, it would have been manifestly wrong to give a mortgage; which would give to her a mere defeasible interest therein, as in the capital of $20,000, to which she was entitled only to such an interest under the will of her father. But considering the deed as an absolute conveyance, in the nature of a new investment of the whole fund in this real estate, the limitations in the deed of trust are perfectly fair and equitable. For by this new arrangement the infant, as an equivalent for the limitation over to the mother of the whole property in case of the death of the infant without Issue before she is of lawful age, obtains her base or determinable fee discharged of the dower, to which her mother is entitled in the $20,000 which forms a part of the purchase money of this estate. And the mother as an equivalent for this right of dower which she relinquishes, gets a more enlarged estate in the premises in case of the death of her child. For the limitation over to her is absolute, by the relinquishment of Mr. Eckford’s contingent interest in the $20,000 ; thereby turning what was before her contingent interest in that part of the fund into an estate or interest in the lands purchased therewith, in the nature of a vested remainder in fee in the whole premises. Having arrived at the conclusion that it is impossible to construe this conveyance to be a mortgage, from the instrument itself, either independent of or when examined with reference to the various interests in the funds which formed the consideration thereof, it remains to be seen whether there is any legal evidence, beyond the deed itself, to show that it was intended by the parties thereto to be a mere mortgage or security for the payment of money.

Many of the remarks which I have already made are applicable to the case when considered in reference to this question ; for if it was intended to be a mortgage merely, it is impossible to conceive what honest object the parties could have had in taking a conveyance in this form. And, without some further evidence than is contained in this case, I will not' for a moment indulge the belief that either of the parties to that conveyance were actuated by the dishonest and fraudulent motive of placing the property beyond the" reach of the creditors of Mr. Eckford by making what purported to be an absolute conveyance, upon its face, with a secret understanding between him and his daughter that it was to be in fact nothing but a mortgage. In the first place there was no adequate object in making it in that form for the purposes of fraud. For the. whole object of securing the lien upon the property for a debt which was actually due, if that was the only object, would have been much better attained without any such fraudulent contrivance, by giving a bond and mortgage in the usual fonn upon the same property, or rather upon this and the adjoining property ; the whole of which would not have been an unreasonable security for the $27,000, for the time which must expire before the termination of his trust as guardian would take place, if the parties lived so long. On the other hand, if the discerning mind of Mr. Eckford foresaw that this property, although it could not then be sold and converted into money for the payment of his creditors, even for the amount then due to his ward and the estate of his deceased son-in-law, must in a very few years increase in value so as to make a most valuable investment of the fund which he then held in trust for his daughter and her child, he had an honest and fair motive for giving them the full benefit of the anticipated rise in the value of the property ; which in his then situation there was very little probability that he could honestly retain for himself. And I have looked in vain in this case for any legal evidence to show that Mr. Eckford intended this conveyance to be any thing else than what it purports to be upon the face of the instrument itself.

The evidence of the two females, as to what they supposed they had heard from Mrs. Drake, does not advance a step towards establishing the issue raised in this cause, that this conveyance was intended as a mortgage ; as no inference of that kind can be drawn from the loose declarations they heard from her. And if those declarations amounted to any thing, under the circumstances of this case, it would be to establish the feet that the deed was not given either as a mortgage to secure the $27,000 and interest, or as a conveyance in satisfaction of the debt; but for the mere purpose of defrauding the creditors of Mr. Eckford, by placing the property beyond their reach, for the purpose of preserving it for the use of himself and his family. All that could be drawn from Mrs. Black, in answer to the question of the complainant’s counsel as to whether she understood from Mrs. Drake that the property was taken in security, was that it was taken as security for her father. That is, as she afterwards explained it in her further examination, that it was made over in trust for Mr. Eckford, to avoid any difficulty that might arise out of the failure of the Life and Fire Company. Again; in her cross-examination, she says Mrs. Drake said it was deeded to her in trust for Mr. Eckford and his children. And she afterwards says it was to save the property for his children, as Mr. Eckford believed his creditors would distress him. And Mrs. Rhodes, although she does not speak of any declarations of Mrs. Drake on the subject, says it was understood in the family hat the object of making the conveyance by Mr. Eckford was to secure the property to his family. It is evident from the examination of both of these witnesses, that neither of them obtained the impression, from what they saw or heard, that Mr. Eckford had in his hands $27,000 belonging to his daughter and grand-daughter, and that the conveyance was intended as a mortgage to secure the payment of that debt. On the contrary, they were laboring under the impression that the conveyance was a mere fraudulent trust, to secure the property for himself and his family, and to place it beyond the reach of his creditors. If such was in fact the intention of the parties to that transaction, it is unnecessary for me to say that neither the grantors in that deed, nor their executors, could come into this or any other court to enforce the execution of the trust, or to obtain any relief against the conveyance.

I am satisfied however, that the inference which might be drawn from this testimony, if it were not explained by other circumstances, would be a libel upon the memories both of Mr. Eckford and of Mrs. Drake. I have no reason to believe the witnesses have testified dishonestly. They undoubtedly heard it talked of in the family that Mr. Eckford had become embarrassed in his affairs ; and that he was in danger of losing his property by reason of the failure of the institution with which he was connected as president, and. upon the bonds of which* company his name so often appeared. And they undoubtedly knew that a conveyance had been made to Mrs. Drake, which had some connection with the anticipated failure of the grantor. If any thing was said by Mrs. Drake or Mr. Eckford in reference to that conveyance, without a full explanation of all the circumstances, and of the provisions and legal effect of the deed, it was perfectly natural that they should suppose it was given upon a secret trust to place .the property beyond the reach of the grantor’s creditors. But if a fraud was actually intended, it is wholly improbable that Mr. Eckford or his daughter would have spoken of it thus openly in the presence of these good ladies ; whose memories were taxed, after the expiration of nine years, to fix upon the characters of their deceased relatives the stain of fraud. In the view which I have taken of this testimony, it is unnecessary for me to examine the question which was raised as to the competency of Mrs. B ack as a witness, in favor of the complainants, to increase the fund out m which her legacy is payable under Mr. Eckford’s will.

The testimony of Mr. Cutting, as to what was said or done by Mr. Eckford after the execution of the deed, and when Mrs. Drake was not present, was clearly inadmissible as evidence in favor of the complainants. If Eckford himself had filed this bill in his lifetime, it is very certain he could not have given in evidence his own acts or declarations, to contradict or explain the deed which he had previously executed. And if he could not have introduced such evidence, it is equally certain that it is inadmissible upon this bill, filed by his executors and trustees. As this testimony was objected to, it could have no influence in the decision of this cause if it was in other respects relevant and proper. The only inference however which I should draw from exhibit A., even if it was legal evidence, would be that Mr. Eckford had either forgotten that the title to the property conveyed by the trust deed was not limited over to him, in the event of his daughter and granddaughter both dying without issue, in the same manner, as the original estate was limited under the will of his son-in-law. And that he therefore might have a residuary or contingent interest in the Love Lane property; as he had in the Grand-street house and lot, which immediately follows it in his memorandum. Again; as the consideration of that deed, or the greatest part thereof, was the proceeds of the estate of his son-in-law, in which the grantor had a contingent interest, a man who was not a lawyer might have supposed there might be a resulting trust therein, which might belong to him in the event contemplated in the will of Dr. - Drake. Or what is more probable than either of these conjectures, his lawyer may have informed him, at the time the trust deed was executed, as it was his duty to do, that that the arrangement which he then made for the payment of the debt to his daughter and grand-daughter, by this investment, would ¡¡not be absolutely binding on the latter $. unless it was subsequently sanctioned by the chancellor, or ^7 the infant ward herself when she became of age. He therefore had a contingent interest in that property which it was proper to convey, in a general assignment for the benefit of his creditors. The knowledge of the existence of such a right on the part of his gran d-daughter may probably account for the fact, that in making his will, in 1831, he fixed upon the 1st of February, 1840, a few days after the time when she would arrive of full age, and be bound to make such election, as the period for the sale and distribution of his property among his legatees and devisees.

But the idea that the trust deed was intended as a mortgage merely, is wholly inconsistent with Mr. Eckford’s declarations to Mr. Griffin, a year or two after that deed was executed ; while the witness was negotiating for the lease of this property. And when he subsequently sold some of the adjoining property to Cutting and Tillou, and reserved a small-gore for the purpose of squaring out the lots on the premises now in controversy, it is wholly incredible that he should have taken the trouble of having that gore conveyed absolutely to his grand-daughter, if he supposed he had a redeemable interest in the tract conveyed by the trust deed. The conveying of that strip to her, instead of retaining the title in himself, would render it impossible to obtain his object of squaring out the lots, either upon the redemption or foreclosure of the mortgage ; she being then but ten years of age, and therefore incapable of uniting the two pieces together if her interest under the trust deed was a mere mortgage interest. On the contrary, if the trust deed was intended to be absolute, as upon its face it purports to be, her interest in the two pieces would be the same. For the transfer of the gore took place in 1829, after the death of her mother, and when her title to the premises in question had become a perfect fee, by the union of the legal and equitable interests of her mother and of herself in the same person; she being the heir at law of her mother.

It is impossible therefore to resist the conclusion that Mr. Eckford in April, 1829, did not consider himself as the owner of the premises in controversy, and that his grand-daughter had a mere chattel interest therein, as a security for money. The fact that Mr. Eckford received the rents of the premises, and paid the taxes and assessments thereon, down to the time of his death, is not inconsistent with her right as legal owner. For it was his duty to do so, as her testamentary guardian under the will ; especially after the death of her mother in 1828, when he became the sole guardian of her person and estate. Even if he had not been the legal guardian, the relation in which he stood to her, as her natural guardian, after the death of both her parents before she was nine years of age, would itself have made it a moral if not a legal duty for him to have done the same thing.

As the will of Mr. Eckford is not before me for construction in this case, I have purposely declined expressing any opinion thereon until it shall come before me in a form in which the construction which 1 might give to it would be subject to review in the court of dernier resort; if either party should be dissatisfied. It may be necessary, too, in order to give a proper construction to that will, to have the testimony of some persons who are not competent witnesses here; to enable the court to apply the language of the testator to some of the subjects to which that will relates.

The decree in this case must declare that the conveyance in question is not a mortgage, and the complainants therefore are not entitled to redeem. But that the same is to be deemed a full satisfaction of the $27,000 and the interest thereon, unless the defendant George C. De Kay, and his wife who has now arrived of full age, shall within 20 days after the entry of the decree, elect to receive the $27,000 with interest thereon, and to reconvey the premises to the complainants as the executors and trustees of Mr. Eckford to be disposed of according to the directions in his will. And in case of such election, written notice thereof, under the hands and seals of G. C. De Kay and. wife, agreeing to convey the same upon the terms aforesaid, subject to such equitable adjustment as this court shall make in relation to such advances as have heretofore been made under its direction, and duly acknowledged by them in the manner prescribed for conveyances of real estate, must also be served upon the complainants’ solicitor, within the twenty days. This decree is also to be without prejudice to the rights of either party in relation to any advances, or liens, which have been made, or created,, during the pendency of this suit, by the parties, or either of them, or by their guardians.

And as this suit has been prosecuted for the benefit of the devisees and legatees under Mr. Eckford’s will, it appears to be a proper case to direct the costs of all the other parties, as well as the costs of G. C. De Kay and of the guardian ad litem for his wife, to be paid out of the estate of Mr. Eckford, in the hands of his personal representatives.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Van Vechten, executor, &c. vs. Van Veghten and others.
    Where the testator, by his will, after providing for the payment of his debts, and making certain specific bequests, gave the residue of his real and personal estate to his executors in trust to lease his house and" lot on Market-street, and to lease and soli and convey the rest of his property, and apply the proceeds and income thereof as follows: one-fifth to his son in fee; three-fifths to the support of his daughters, E., G., and H., respectively ; and one-fifth to the support of his daughter A., free from the control or debts of her husband ; and should any of his daughters die leaving issue, the share given for her support to be applied to the support and education of such issue ; but in case either of his said daughters should die without leaving issue, the use and income of her share which should then remain, to be divided among his surviving children or their heirs, except the share thereof to which his daughter A. would be entitled, which was to be vested in his executors, subject to the trust relative to her fifth of the estate : Held, that under the provisions of the revised statutes, the devise of the testator’s house and lot upon Market-street was inoperative and void ; as the trust to receive the rents and profits during the lives of his four daughters would suspend the power of alienation for more than two lives.

      Held also, that the devise of the residue of the real estate was valid as a power in trust to the executors to sell such estate for the benefit of legatees, and convert the same into personalty for all the legal purposes of the will; and to invest the share of each daughter as personal estate, and fo receive the interest or income thereof for her use. But as the power to lease such real estate and receive the rents during the lives of the four daughters might suspend the alienation beyond the limits allowed by law, the trust to lease the same and receive the rents thereof as real estate was therefore void; and that the land descended to the heiis at law of the testator, subject to the right of the legatees to have the same immediately converted into personal estate by the execution of the power in trust to sell.

      Held further, that each of the daughters of the testator was entitled to the whole income of her fifth of the estate for her support during life, and to so much of the principal of the fund, in addition thereto, as might be necessary for that purpose from time to time; and that the residue of the prin. cipal of the shaic of each daughter who should leave issue at the time of her death, would belong absolutely to such issue, under the provisions of the will.
    Where the testator directed in his will that his son should be discharged from all notes which ho held against him, and from all charges made against him by the testator for loans or advances, and all claims against him for the occupation or rents of certain premises specified: Held, that the son was entitled to a dicliargc from all such claims against him which existed at the death of the testator, and not merely those which were in existence at the date of the will.
    To take the case of a specific legacy out of the general rule, that in a will of personal estate the testator is presumed to speak with reference to the time of his death, there must be something in the nature of the property or thing bequeathed, or in the language used by the testator in making the bequest thereof, to show that lie intended to confine his gift to the property or subject of 1 he bequest as it existed at the time of the making of the will.
    In trusts of personal property, or of money, a suspension of the absolute ownership of a part of the property or fund, beyond the time allowed by law, will not render the suit void as to another part of the property or fund which can be separated therefrom.
    Every limitation of a future interest, or use, in any particular portion of a personal fund, which would have the effect of suspending the absolute ownership of that part of the fund for a longer period than is allowed by law is absolutely void. But the limitation of other interests in that part of the fund may still bo valid, if they are in the nature of different and distinct estates therein.
    If personal estate is vested in trustees upon various trusts, some of which trusts are valid and the others void, the court will sustain such as are le. gal and valid, if they can be separated from thosj which are illegal and void.
    Where it is necessary to carry into effect the intention of the testator, under a power in trust to convert real estate into personalty or personal estate into realty, so as to produce no injustice between the different objects of his bounty, equity considers the conversion as having been made at the death of the testator or at least within one year thereafter

      A testator having hy his will bequeathed to each of his three daughters who should marry an outfit, of a specified value, two of the daughters subsequently married during the life of their father; who died a short time thereafter, without having given to either of them any marriage portion; Held, that each was entitled to her outfit, under the will, in the same manner ag she would have been if she had married after the testator’s death.
    January 21.
    The object of this suit was to obtain a judicial construction of the will of Abraham Van Vechten, deceased ; several questions having arisen between the executors and some of the devisees and legatees, as to the meaning of many of the provisions of the will, as well as to the validity of most if not all of the trusts contained therein. At the time of the making of the will, in March, 1833, and at his death in January, 1837, the testator had five children who were his only heirs at law; to wit: Jacob T. B. Van Vechten the complainant, Anne the wife of Walter Van Veghten, Eliza, Gertrude, and Harriet Maria. After the making of the will and before the death of the testator, Gertrude married A. S. Van Vechten, one of the executors and trustees named in the will, and Harriet Maria married W. Lehmann. By his will, the testator, in the first place, directed his debts and funeral expenses to be paid out of his estate ; for the purpose of paying which debts, &c. he authorized his executors to sell the whole of his real and personal estate, or so much thereof as a majority of the executors, who should assume the execution of the will, might deem proper ; except his dwelling-house and lot, and the house and lot occupied by his son. He then devised to his son, in fee, the house and lot wherein the latter resided ; but directed that the son should be charged therefor, in the settlement and division of the residue of the estate, as thereafter directed, the sum of $6000. He also directed that his son should be discharged from all notes which he held against him, and from all charges made against him on book or otherwise, for loans or advances by the testator to or for him, and all claims against him for the occupation of, or rents by him received for, the two houses and lots in. that clause of the will mentioned. And he likewise released to his son-in-law, Walter VanVeghten, all the moneys which the latter owed for moneys advanced to or for him, by the testator. He also bequeathed to his son the use of his gold watch, for life, with remainder to his grandson ; and he likewise authorized his son to take the whole or any part of his law library, at an appraised value. The fifth and sixth clauses of the will were as follows :

      "Fifth—The residue of my real and personal estate I .give, devise, and bequeath to my executors or the survivor of them, and their assigns, in trust, to lease my aforesaid dwelling house and lot fronting on Market-street, and to lease and sell and convey the residue of my real estate, and invest the same as they shall deem most beneficial, and apply the proceeds and income thereof, including the sum charged against my son for his house and lot devised to him, and deducting $1200 from the share given in trust for the support of my daughter Ann, as follows, to wit : The equal fifth part thereof, including the $1200 to be deducted as above from Ann’s share, and the $6000 charged against my son Jacob T. B. Van Vechten, to my said son, his heirs and assigns; three-fifth parts to be applied towards the support of my daughters Eliza, Gertrude, and Harriet Maria respectively ; and the remaining fifth, excluding the aforesaid $1200, to be applied towards the support of my daughter Ann, in such a manner as my executors or a majority of them, or survivors of them, shall deem most proper and expedient, free from the contracts or debts of her husband.

      "Sixth—Should any of my said daughters die, leaving issue living, the share of my estate devised and bequeathed for her or their support, to be applied towards the support and education of such issue; and should either of my daughters, Eliza, Gertrude, or Harriet, marry, I will that each receive an outset of the same value as my daughter Gertrude has had, in addition to the above share of my estate devised and bequeathed to and for their use. But in case any of my said daughters die without leaving issue living, the use and income of my estate so as above devised and bequeathed to her or them, which may remain, shall be divided among my surviving children or their heirs ; except the share thereof to which my daughter Ann would be entitled, which I will and direct shall be vested in my aforesaid trustees, subject to the aforesaid trust relative to her share of my estate.’*
    The testator appointed the complainant his son, and his nephews A. S. Van Vechten and T. Van Vechten, together with J. Winne, executors of his will; the two last of whom renounced the trust; but the other two proved the will and took out letters testamentary thereon. The testator at the time of his death, was seized of considerable real estate, besides his dwelling house and lot on Market-street, and the house and lot devised to his son ; as well as of some personal estate. His daughter, Mrs. Lehmann, had one child born in the lifetime of her father, and another subsequent to his death ; both of whom were made defendants in this suit, together with the daughters of the testator, and the husbands of such of them as were married. The complainants stated that doubts had arisen as to the true construction of the will in several important parts thereof; as to which parts counsel who had been consulted by him differed in opinion ; and as the individual interests of the co-executor and his wife were involved in such construction, he declined being a co-complainant, and was therefore made a defendant in the suit. The particulars in which a judicial construction of the will was asked by the complainant in his bill, were,

      First. Whether by the second clause of the will, the complainant was discharged from all notes and charges for loans, advances, rents, &c. due at the time of the testator’s death, or only such as were due at the time of the execution of the will 1

      Second. Whether the devise of the testator’s dwelling-house and lot on Market-street, in trust to lease the same and apply the income thereof in the manner and for the period in the will limited, created a valid trust; and if not, whether such house and lot were legally devised so as to give the executors any power to lease or otherwise dispose of the same 1

      Third. Whether the power to lease, sell and convey the residue of the testator’s real estate, except the house and lot devised to his son, was a legal and valid power, which might be exercised by the executors at any time during the continuance of their trust, in their discretion 1

      Fourth. Whether under the fifth clause of the will, the executors were authorized to apply any part of the principal of the shares of the testator’s daughters, respectively, for their support, if the income thereof was not sufficient for that purpose 1

      Fifth. Whether any part of the income of either of the three fifths of the estate directed to be applied to the support of the testator’s daughters Eliza, Gertrude, and Harriet Maria, respectively, if the whole of the income of the one-fifth should not be wanted for the support of one of such daughters, could be taken and applied, if necessary, to the support of either of the others of the said three daughters 1 Sixth. Whether the executors were themselves bound strictly to attend to the application of the income of the estate to the support of the respective daughters of the testator; or whether the payment to the daughters severally, of such portions of the proceeds and income of the estate as they were required to apply for their support, would be a compliance with the requisitions of the will, and their receipts sufficient vouchers for the executors in passing their accounts 1

      Seventh. Whether under the will, and particularly under that part thereof which directs that in case of the death of any of' the testator’s daughters, leaving issue living, the share of such daughter should be applied to the support and education of such issue, the issue would be entitled at any time to the whole of that share which was not required for such support and education ; or if not, what disposition was to be made of the residue of such share 1

      Eighth. Whether the two daughters of the testator, who married after the making of the will and before the death of the testator, were entitled to the outfits, mentioned in the sixth clause of the will; and whether, in the event of a future marriage of either of the testator’s daughters, Eli— za, Gertrude, or Harriet Maria, the trust as to her share of the estate will be terminated, so that she will be entitled to receive not only such outset but also the one-fifth of the estate devised and bequeathed for her use %

      Ninth. Whether in the event of any of the daughters dying without leaving issue, the trust as to that share of the estate, except so much thereof as in that event is limited over to the executors for the separate use of Ann,, ceases so that the devisees in remainder will be entitled to receive their distributive shares thereof immediately and absolutely 1

      Tenth. Whether the trust created by the fifth and sixth clauses of the will, is a single trust, to continue until all the daughters of the testator therein named are dead; or four separate and independent trusts, each of tvhich will terminate at the death of the cestui que trust %

    The adult defendants put in a joint answer, admitting the facts stated in the bill; but insisting they were advised by counsel that several of the provisions of the will of the testator were not in conformity with the provisions of the revised statutes, and were therefore inoperative and void • and particularly, that several of the trusts created by the will were not such trusts as were authorized by the revised statutes ; and also that the limitations of the estates in trust, created in and by the fifth and sixth clauses of the will, or some of them, exceeded the period allowed by law for the suspension of the absolute power of alienation, and such estates were therefore absolutely void in their creation. And those defendants concurred with the complainant in asking for a judicial construction of the will in the several particulars mentioned in his bill, and as to all other questions arising under the will. The infant defendants put in a general answer by their guardian ad litem, submitting their rights to the decision of the court. The 'cause was heard upon the bill and answers,- and upon a master’s report as to the truth of the matters stated in the bill.

      S. Stevens D. Buel, jun. for the complainant.
    The fifth clause of the will manifestly creates a trust estate in the executors as to the house and lot on North Market-street during the lifetime of the testator’s four daughters at least. During this period the executors have no right to alien the property, because it would be a violation of their duty. The effect of this devise would be different had the executors power to sell this house and lot as they have the residue of the real estate. 1 R. S. 730, § 65. The cestui que trusts cannot sell, assign or in any manner dispose of their interests therein. (Ibid.) It cannot be known in whom the reversion in fee will vest until after the death of all the daughters. There are, therefore, no persons in being by whom an absolute fee in possession can be conveyed. By the provisions of this devise, therefore, the absolute power of alienation of this house and lot is suspended for a longer period than during the continuance of two lives in being at the creation of the estate. The devise of this property is therefore void, and it descends to the heirs at law of the testator. (1 R. S. 723, § 14, 15.) The disposition of the residue of the testator’s real and personal estate which is made by the fifth and sixth clauses of the will, is valid. The fifth clause authorizes and directs the executors to lease and sell and convey the residue of the real estate, &c. This is an authority to the executors to do both or either ; they may sell the whole or lease the whole, or lease part and sell part, in their discretion. That part of the trust which authorizes the trustees to lease any portion of the residue of the estate thus devised to them in trust is void, for the reasons above stated as to the house and lot on Market-street; but this does not necessarily render void the trust to sell, and as they are authorized to sell, the trust may be executed in that manner, and will be valid for that purpose, if there is no other legal objection to it, When the executors by sale have converted the whole of the residue of the real estate into money, they are required to invest the same as they shall deem most beneficial, and apply the proceeds and income thereof. The estate, after being converted into money, is to be divided into five equal parts. There is in reality no trust as it respects the share of Jacob T. B. Van Vechten ; or at most, no further than may be necessary to authorize the executors to reduce the estate to cash for the purpose of a division, which may rather be termed a power than a trust; or if it should be deemed a trust, the purpose for which it was created, as to the son’s one-fifth ceases when the estate is reduced to money and divided, and of course the estate of the trustees in that share also ceases at that time.
    There is a trust, however, so far as regards the shares of the testator’s four daughters. The executors are to apply their shares towards their support and maintenance. This necessarily implies that the executors are to use a discretion in the amount to be applied from time to time for their support. They are to invest their shares and apply the income and so much of the principal as may be necessary for their support. The trustees are not barely to receive the rents and profits and pay over, but are themselves to apply the income, and the principal if necessary, of the share of the daughters to their support during their lives respectively; this is therefore an active trust, and one authorized by the statutes. (See 14 Wendell’s Rep. 322.) This trust is not void, as suspending the power of alienation of the trust estate for a longer time than the duration of two lives in being at the death of the testator. It is a trust of one-fifth of the testator’s estate, for the maintenance of each of the daughters separately or individually, and terminating as to each one-fifth upon the death of each of the daughters. If one of the daughters should die leaving issue, the trust as to her fifth would continue only during the life of such daughter, and until the issue left by her should arrive at the age of twenty-one years. If any of the daughters should die without issue living, the will directs the use and income of the share of the estate devised and bequeathed to her, which may remain, to be divided among the testator’s surviving children ; that is, the share or portion of the testator’s estate devised and bequeathed to the daughter so dying, and which may remain undisposed of at her death, is to be so divided. The estate of the trustees in the share of the daughter who shall die without leaving issue living, ceases then on the death of such daughter. A court of equity will so construe the will as to give effect to the intention of the testator, where it can be done without a manifest violation of the meaning of the terms and language made use of in the will. The general intent of the testator is manifest, to create a trust for the maintenance and support of Iris daughters during their lives. The trust during the lives of the daughters, considering it a separate trust for each, may be declared valid; although the trust in favor of the issue of such daughters may be deemed void. This would be carrying the intent of the testator into effect so far as is consistent with the rule of law; which the court is authorized to do. (1 R. S. 748, § 2. 14 Wend. 308.) The provision made in the sixth clause of the will for the outset of the testator’s daughters Eliza, Gertrude and Harriet Maria, in case they or either of them should marry, can only apply to such of those daughters as should marry after the decease of the testator. The outset mentioned in the will cannot be given by the executors to either of the daughters who were married subsequent to the date of the will, and prior to the death of the testator. The decision of the chancellor upon a similar provision in the will of Mr. James, is conclusive upon this question. (5 Paige’s Rep. 322, 477.) This part of the chancellor’s decision in that case was afterwards affirmed in the court for the correction of errors.

      J. Rhoades, for the infant defendants,
    concurred in these views of the questions arising on the will.

      John Davis, for the adult defendants.
    The devise in. trust of the house and lot in North Market-street, contained in the fifth clause of the will, is void, and the property descends to the heirs at law of the testator. If valid, it would create a trust estate in the executors at least during the lives of the testator’s four daughters. And it might continue for at least such longer period as should be necessary for the support and education of the issue of either of them who should die leaving such issue living. The executors have no power to sell this house and lot. And the cestuis que trust cannot assign their interest therein. Consequently, the devise suspends the absolute power of alienation for a longer period than during the continuance of two lives in being at the creation of the estate> and is therefore void. (1 R. S. 730, § 63. Id. 723, § 14, 15. Wood v. Wood, 5 Paige, 596. Hawley v. James, id. 318 to 320. Coster v. Lorillard, 14 Wendell, 265. Hawley v. James, 16 id. 61.)
    The authority contained in the fifth clause of the will, given to the executors to lease, and sell and convey, the residue of the real estate of the testator, so far as their right to lease the same is concerned, is also void. The trust contained in the fifth clause of the will, for the benefit of the complainant, J. T. B. Van Vechten, is also void. The manifest intention of the testator in this clause was, not to devise or bequeath to him any estate or property absolutely, but to devise the whole of the residue of the estate to the executors, in trust, to lease the same and pay one-fifth of the rents, or to sell the same, invest the proceeds, and pay one-fifth of the income of the proceeds, or in part both, at the discretion of the trustees. In one-or both these ways a common fund was to be created in the hands of the trustees, by whom the proceeds or income of this fund was to be disposed of as directed by the fifth and sixth clauses of the will. Now the complainant, J. T. B. Van Vechten, is one of the trustees, and may become, by survivorship, the sole trustee, and cannot legally be trustee for himself as cestui que trust. Besides, this part of the trust is inseparably blended in its execution with the provisions mentioned in the next point. (5 Paige, 320.) The trust contained in the fifth and sixth clauses of the will for the benefit of the testator’s four daughters, especially that relating to Eliza, Gertrude and Harriet Maria, is void, as suspending the power of alienation of the trust estate, for a longer period than two lives in being at the death of the testator. The testator intended to create a trust of the whole four-fifths of the residue of his estate for the joint benefit of his j/iror daughters ; and in case of the death of either, substituting her issue in her place. And he intended to leave their interest in the use and income of this fund, joint, to provide for the case of unequal wants through sickness or misfortune. If this be so—if this investment is to continue during the lives of the four daughters, and as a fund for the support and education of the issue of such as shall die leaving issue, the trust is void. There is no express provision for the vesting of the real estate in the children of the testator, if it should be leased by the trustees, nor of the fund if it should'be sold and the proceeds invested. They are to have the proceeds and income thereof. These clauses of the will, afford no reasonable or just implication, that the testator, when they were drawn, had at all in his mind the idea of a division of the principal fund during the lifetime of any of his children. The direction in the will as to the outfits of Eliza, Gertrude and Harriet Maria, are irreconcileable with the idea of a division of the principal fund,,
    It may, perhaps, be safely affirmed that ho part of the testator’s estate, except that directed to be applied to the payment of debts, and existing in debts released, arid given in specific legacies and devises and outfits, is, in any manner, finally disposed of. At least the trust, as to the three-fifths the income of which, is given to Eliza, Gertrude and Harriet Maria, is void. The terms in which their interest is given, are as follows: three-fifth parts to be applied towards the support of my three daughters respectively. The word respectively, qualifies the persons and not the parts of the fund given. The whole of these three-fifths is a joint fund, and must continue during the lives of the three daughters, as there is no provision that one-third of the three-fifths shall be applied to the support of each, but the whole income was intended to be applied to all, as their wants might require. Three persons must die before the trust fund can be absolutely disposed of, and consequently, the absolute power of alienation is suspended for a longer period than the statute justifies.
   The Chancellor.

The first question, as to which the parties in this case ask for a judicial construction of the testator’s will, arises upon the provisions contained in the second clause thereof, discharging the complainant from all notes which the testator holds against him, and from all charges on book, or otherwise, against him for loans or advances to or for him, and all claims for the use or rents of the two houses mentioned or referred to in that clause of the will. This provision, as well as the similar provision in the same clause, fur the release of W. Van Veghten, the son-in-law, of what he owed on account of moneys advanced to or for him, by the testator, are in the nature of personal legacies of the several sums thus due from them respectively. And, in the absence of any thing from which it can be inferred that it was the intention of the testator to confine these testamentary bequests to what was due at the date of the will, the provision must be construed to include all sums thus due at the time of his death, and to ex-.elude any thing which had been paid, or secured in a different manner, previous to that event. Although, as a general rule, it is well settled that a will of personal property relates to the time of the death of the testator, both as to the legatees and the subjects of the bequests mentioned in the will, yet, in the case of specific legacies, it is sometimes very difficult to ascertain whether he intended to confine the bequests to the subject matter thereof as it existed at the time of making the will, or as it might exist at the time when such will should take effect by his death. But to take the case out of the general rule, that in a will of personal estate, the testator is presumed to speak with reference to the time of his death, there must be something .in the nature of the property or thing bequeathed, or in the language used by the testator in making the bequest thereof, to show that he intended to confine his gift to the property, or subject of the bequest, as it existed at the time of the making of the will.

In the case of Sayer v. Sayer, (Gilb. Eq. Rep. 87,) where the testator bequeathed all his personal estate in Wanstead, to J. S., as a specific legacy, Lord Cowper decided, that the bequest related to the time of the death of the .testator ; and therefore that the testator’s coach and horses, which were at that place at the time of his death, and all the arrears of rent then due, issuing out of his lands there, belonged to the legatee. And this case appears to have been followed in most of the subsequent decisions, where the terms of the legacy were general, as in the case under consideration ; except in those cases in which - the language of the will itself clearly indicated the intention of the testator to confine the bequest to the time of the execution of the will merely. (See 1 Roper on Leg. 188; and 2 Will, on Executors, 885.) The decision in Sayer v. Sayer was also in strict accordance with a previous decision of Sir Nathan Wright, made in the case of Gayre v. Gayre v. North, (2 Vern. Rep. 538,) a few months before the great seal was delivered to Lord Cowper the first time, in 1705.

The case of Smallman v. Goolden, (1 Cox’s C. C. 329,) is certainly an authority against the complainant on this question ; so far as a decision of the master of the rolls can be said to be an authority, when it conflicts wfith previous decisions of the holders of the great seal. In that case the bequest to the son was general, of all sums of money due to the testator on bond, or bonds, or any other security. And the son, at the date of the will, being indebted to the testator upon one bond only, and becoming indebted to him in another bond afterwards, Lord ICenyon held that the first bond only passed by the bequest, and that the subsequent bond debt was not included therein. If there had been any thing in the language of the will) in that case, to confine the bequest to debts then existing—for instance, the words “ now due,” which were used by the testator, in the case of the Attorney General v. Berry, (1 Eq. Cas. Abr. 201)—I should have fully concurred in the conclusion at which the master of the rolls arrived. But as the testator had used general words, which were broad enough to include the subsequent bond as well as the one then in existence, the words “ all bonds,” in the plural being used, when there was but one bond at the time of the making of the will, I think the decision in that case was in conflict with the whole current of authorities in reference to wills of personal estate. All question on the subject is now put at rest, in England, by the 24th section of the recent statute of wills, (1 Vict. ch. 26;) which declares, in accordance with what Mr. Williams supposed to have been the true rule on the subject previous to that time, that a will, in reference to the estate comprised therein, shall be construed to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. And the same rule is now extended to wills of real estate ; which before that statute had reference to their dates only, and could not transfer the title to after acquired lands by any form of expression.

The supposition of Lord Kenyon, that the testator intended to measure his bounty according to the situation at the time of making his will, although he had used general terms which were broad enough to cover any bonds, or other securities, which he might have against his son at the time of his death, could with equal propriety be applied to a general bequest of all the testator’s furniture, horses, or bank stocks ; as to which there is no doubt that a bequest in those general terms, without any words of restriction, would carry to the legatee all of that description of property which the testator had at the time of his death, although the whole, or a very considerable part thereof, was acquired after the making of the will. In the case under consideration, the language of the will is equally broad and comprehensive, to cover all notes which the testator held against his son, and all charges made against him on book or otherwise for loans or advances to or for him, and all claims against him for the use and occupation of, or the rents received by him, for either of the two houses and lots therein referred to. And there is nothing to indicate an intention on the part of the testator to confine this devise to the debt as it then existed, or to the rents or use of the houses up to the date of the will only. On the contrary, there is reason to suppose, from the will itself, independent of the general rule of law on the subject, that as to the use and occupation of the house and lot where the complainant then resided, the testator did in fact intend to bequeath the same to him; as it was the same house and lot which had been specifically devised to him in the previous part of the same clause in the will. When we take into consideration, in connection with this, the well known fact, that the testator was one of our ablest and most distinguished lawyers, and was therefore well acquainted with the general rule of law on this subject, I think there can be no doubt that this provision in his will must have reference to the state of the subject matter of the bequest as it existed at the time of his death. All debts, therefore, which were due from the complainant, or from Walter Van Veghten, the son-in-law, to the testator at the time of his death, and which answer the description contained in this clause of the will, are discharged ; except as against creditors of the estate, who will have a right to resort to the same in case of a deficiency of other property to pay the debts.

The recent decision of the court for the correction of errors, in the case of Darling and others v. Rogers and Sagory, decided in December, 1839, in which it was settled that a conveyance in trust was valid, so as to vest the estate in the trustees pro tanto, if any of the trusts therein specified were authorized by the revised statutes, although the property was conveyed upon other express trusts which were prohibited by law, has relieved me from much embarrassment in relation to some of the trusts in this will. Previous to that decision, I supposed that the 58th section of the article of the revised statutes relative to uses and trusts, (1 R. S. 729,) which declares that where an express trust shall be created for any purpose not specified in the statute, no estate whatever shall vest in the trustee, when taken in connection with the previous decisions of the same court in Coster v. Lorillard and in Hawley v. James, in which cases 1 had attempted to separate the legal from the illegal parts of the trusts, precluded the possibility of making such a separation, where an estate not divisible in its nature was attempted to be conveyed to the trustees. It being now settled that any legal trust is sufficient to sustain a conveyance, to the trustee, of an estate commensurate with such trust, without reference to the illegal trusts which the testator or grantor has attempted to create in the same estate, there will be no difficulty hereafter in vesting the legal title in the trustee for any purpose which is authorized by the revised statutes; without reference to the illegal trusts connected therewith. But as "the court of dernier resort, in its recent decision, has not in terms overruled that part of its decision in the case of Coster v. Lorillard, in which it was held that a trust to receive the rents and profits of real estate and apply them to the use of more than two persons for life, with contingent cross remainders in the shares of each, was void as to the shares of each cestui que trust, even for his or her own life, it appears to be impossible in the present case to sustain the devise of the testator’s dwelling-house and lot in Market-street. As to that house and lot, it was unquestionably the intention of the testator that it should remain in the hands of his executors, to lease the same and to receive the rents and profits thereof, so long as any of his daughters should live; as the share in the rents and profits of either of them who shall die without issue living at the time of her death, is given over, to or for the use of the survivors. And as my attempt to carry into effect the intention of the testator as far as was practicable consistently with the rules of law, by considering the share of each cestui que trust as a tenant in common in the rents and profits of the real estate as a separate and independent trust, was disallowed by the court of dernier resort, in the case of LorillarcPs will, I am admonished by that decision, that it would be improper for me to attempt to sustain the devise of the Market-street house and lot, even for the lives of the several cestuis que trust in their respective shares. I must therefore declare that the devise of that part of the testator’s property is void and inoperative; and that the executors, as such, have no estate or interest therein under the will, and have no right or authority to lease the same, or to receive the rents or profits thereof. That house and lot, upon the death of the testator, descended to his five children as tenants in common. And the rents and profits thereof, since that time, belong absolutely to them, or to the husbands of such of the daughters as were married, in equal shares ; and must be distributed accordingly.

I should have had the same difficulty in sustaining the devise of the residue of the testator’s real estate, on the ground that the testator had authorized that to be leased for the same length of time if the trustees thought proper to do so instead of selling the same, had it not been for the decision of the court for the correction of errors in the case of Darling and others v. Rogers Sagory, to which I have before alluded. But that case shows, that where property is conveyed in trust, with authority to the trustee either to sell or mortgage the same, in his discretion, and the power to mortgage is illegal and void, the trust is still good as to the power to sell. In other words, the power to mortgage being void, it is an absolute power to sell; not depending upon the discretion of the trustee but upon the right of the cestui que trust to compel the execution of the power. Applying the principle of that decision to the present case, as the discretionary power to lease the premises and to receive the rents and profits for a term which might by possibility continue for more than two lives is illegal and void, the devise in trust must be construed in the same manner as it would have been if the power to lease such real estate had been left out; and as though the only power in trust, in relation t.o the real estate, was a mere power to sell and convey the same and convert it into personal estate, for the benefit of the legatees ; and to invest the proceeds of their respective shares thereof upon such of the trusts directed by the testator as were legal, if any of them were so. No other construction can be given to this part of the will consistently with the decision of the court of dernier resort in the last mentioned case. And such a construction does not appear to be in actual conflict with the decrees of that court in the cases of the Lorillard, James, and Hone."wills ; except the decision relative to some of the annuities in the first case, and the declaring of the legacy to Anna McBride James void in the second case. But I admit this construction may be inconsistent with the opinions of some of the members of that court in all of those cases.

The power to lease the testator’s real estate, and to receive the rents thereof for the use of his children during the lives of the four daughters being void, on the ground that such a trust would suspend the power of alienation beyond the limit allowed by law, the legal title was not vested in the executors by the will. But it descended to the heirs at law, under the provisions of the 56th section of the article of the revised statutes relative to uses and trusts, to which I have before referred ; subject to the execution of the power in trust, to sell the same for the benefit of the legatees, and to invest their respective shares thereof as personal estate, for all the valid purposes of the will. (1 R. S. 129, § 36.) A difficulty would still exist, if the executors had an unlimited discretion to execute this power of sale at any time during the lives of the four daughters. Such a power would not indeed suspend the power of alienation ; as the trustees might at any time convey an absolute estate in the premises, by the execution of the power, without any violation of the trust. But as the personal estate of the testator may not be, and probably is not, sufficient to make up the shares of the daughters respectively, including the $1200 which is to be deducted from the share of Ann, to the $6000 which is to be deducted for the share of the son, it appears to be necessary, in order to carry into effect the intent of the testator and prevent injustice, not only that this power in trust to sell and convert the real estate for the purposes of the will should be sustained, but also that it should be sustained as an imperative power ; the execution of which may be enforced by a decree of this court, if the executors should neglect or refuse to execute the same. The devise to the complainant, of the house and lot on which he resided at the date of the will, was absolute and unconditional j and vested in him an indefeasible estate of inheritance, in fee simple, at the death of the testator. No provision is made by the testator for giving to the other children an equivalent for the $6000 at which that house and lot is estimated by him, except by deducting the $6000 from his son’s share of the residue of the estate, in the settlement and division thereof as personal estate which the testator has directed in his will. And if this power in trust fails, or is not executed until the complainant and his co-executor think proper to do so voluntarily, he may continue to receive one-fifth of all the rents and profits of the other real estate, without giving to his sisters any equivalent for the $6000 at which his house and lot is valued by the testator ; in case the personal estate is insufficient, or the division thereof as contemplated by the testator is found to be illegal and therefore impracticable.

I think however, if the power to sell the residue of the testator’s real estate, except the house and lot on Market-street, can be sustained as a valid power in trust, the case will be relieved from the embarrassment of having an unequal distribution of the estate of the testator among his children, contrary to his evident intention. For by the 96th section of the article of the revised statutes relative to powers, it is declared that every trust power, unless its execution is made expressly to depend upon the will of the grantee, imperative 5 and imposes a duty on such grantee, the performance of which may be compelled in equity, for the benefit of the parties interested. (1 R. S. 734.) And, in all such cases, this court requires the power in trust to be executed in such manner as to produce no injustice to any of the parties. The trustee of sucha power, therefore, can never be permitted to execute it at such a time or in such a manner as to defeat the intention of the party creating the power. And where it is necessary to carry into effect the intention of the testator, under a power in trust to convert real estate into personalty or personal estate into realty, so as to produce no injustice as between the different objects of his bounty, this court considers the conversion as having been made at the death of the testator ; or at least, within one year thereafter. (See Leigh & Dalz. Eq. Conv. 48.)

Having arrived at the conclusion that the power in trust to convert the real estate into personalty, in this case, is such as not to produce any suspension of the power of alienation of such real estate, and that to carry into effect the intention of the testator the execution of the power may be enforced in equity in reference to the time of the death of the testator, when the absolute devise to his son took effect, it remains to consider whether any, and if any which of the purposes for which the conversion is directed were legal and valid. For if the whole of the trusts upon which the converted funds are directed to be invested are illegal, the power in trust to sell the real estate is void.

The general plan of the testator’s will appears to be, to divide his personal estate, and the proceeds of his real estate which was to be converted into personalty, into five equal shares, for the benefit of his five children respectively ; the advance of $1200 which had been made to the husband of his daughter Ann being considered as a part of her share, and to be deducted therefrom, and the estimated value of the house and lot devised to the son being considered as a part of his share. And though the language of the will is not perfectly clear, I think he intended to give to his son an absolute estate or interest in fee in his share. It is given to him and his heirs and assigns. But the interests of the daughters, in their several shares of the personal estate and of the converted fund, the testator evidently intended should be interests of a different nature. Ann was then married. And it is certain he meant to place her share entirely beyond the reach of her husband and his creditors; not only as to the original share, but also as to any accumulations which it might receive by the death of either of the other daughters without leaving issue. In this respect only does it differ from the interests of the other three daughters in their respective shares. He intended that his daughter Ann should not only have the whole income of her share, as her separate estate, but that the executors should also, from time to time, apply so much of the principal of her share as might be necessary, for her support, if the income was not sufficient for that purpose ; and that the shares of the other three daughters, respectively, should be applied for their support and maintenance in the same manner. No provision is made for the disposal of any surplus income of the shares of either of the daughters ; as the testator was unquestionably satisfied that if each received such a support as he intended she should have out of her share of the estate, she would not only require the whole income but also a part of the capital to be appropriated for that purpose. The income of one daughter’s share cannot therefore be applied to the support of another daughter ; neither can the executors retain or accumulate any part of the income of the share of either, without her consent. But they must apply, or pay over to her for her support, the whole income if she thinks proper to claim it; and so much of the principal as may be necessary, from time to time, in addition to such income. In the case of Gott v. Cook, (7 Paige’s Rep. 538,) the principles are stated upon which trustees are to act in the application of a trust fund, or the income thereof, to the support of the cestuis que trust. And these executors will be protected sú long as they act in accordance with those principles ; whether they apply the income, &c. of the fund themselves to the wants of the cestuis que trust, or place the same in their hands, from time to time, to be applied by the cestuis que trust for themselves. But as the principal of the fund which has notbeen expended from time to time is limited over to others, upon the deaths of the daughters respectively, the executors will not be justified in appropriating either the principal or the income in advance. The remainders in fee, in the shares of such of the daughters as shall leave issue living at the time of their respective deaths, are not in terms given to any one. But by necessary implication from the whole will, the children or issue of either of the daughters, who are living at her death, will be entitled to an absolute interest in so much of her share as is then unexpended; although no words importing an absolute interest in fee in the children or issue are used. (1 R. S. 748, tit. 5, § 1, 2.) The direction to the executors, to apply the same to the support and education of such issue, applies to the capital of the fund, and was undoubtedly intended to ¡movide for the issue as minors ; it is therefore not inconsistent with the idea that the testator intended to give such issue the absolute ownership of the fund.

Although the testator in his will is supposed to speak in reference to the time of his death, it does not necessarily follow that the outfits which the daughters who marry are to receive, as legacies in addition to their shares, apply only to marriages which should take place after the testator’s death. It is not unreasonable to suppose he may have contemplated giving them these legacies after his death, as marriage portions, even if the marriages should take place in his lifetime ; but payment of such marriage portions to the daughters in the lifetime of the testator, would have operated as an ademption of the legacies. In the case of Mrs. Barker’s marriage portion, the legacy was not absolute ; but a discretionary power was given to the trustees to give her a marriage portion if she married during the continuance of the trust. She married, however, before the trust commenced, and when the discretionary power, which the testator had given to others in case she married after his death, could have been exercised by himself. And it was for these reasons that I thought her case was not provided for by the will. (See 5 Paige’s Rep. 477.) In this case, I think the two daughters who married during the lifetime of the testator, are each entitled to an outfit of $700, with interest thereon from the end of one year after the death of the testator; at which time those legacies should have been paid. And to provide for the outfit of the remaining daughter, the sum of $700 must be invested until it is ascertained whether the contingency upon which that legacy is payable will ever happen the income thereof in the mean time is to be divided into five equal shares, and to be distributed or applied by the executors in the same manner that the income of the residue of the shares of the five children is to be distributed or applied. This provision for the payment of a future and contingent legacy out of personal estate, or out of real estate which is directed to be converted into personalty for the purposes of the will, does not violate any provision of the revised statutes; as it cannot interfere with the absolute disposition of any other part of the fund. And the absolute ownership of this part of the fund can in no event be suspended for a longer period than two lives in being at the death of the testator, to wit, the life of the unmarried daughter, upon the contingency of whose future marriage her right to the legacy depends, and the lives of the other daughters respectively into whose shares portions of the $700 may go, if she dies unmarried.

The words “ in addition .to the above share,” in the sixth clause of will, do not indicate an intention of the testator that the share is to be absolutely payable on the marriage of the daughters respectively; but were used by him to show that the marriage portion was to be in addition to the equal share of the estate, and was not to be carved out of that share exclusively. The executors are therefore bound to retain the principal of the original share of each of the daughters, which is not wanted for her support from time to time, and to keep the same invested during her life. And upon the death of either of the daughters without leaving issue, what remains of her share is to be distributed equally between the surviving children of the testator, and the heirs—that is, the children or descendants of such of the testator’s children as have died leaving issue ; except the share to which Ann may be entitled in the share of a deceased sister, which is to be held by the executors as trustees for her separate use, free from the control of her husband, during the continuance of her life. The income and so much of the principal as is necessary for that purpose must be applied for her support. And what remains thereof at her death, will belong to her absolutely ; and may be disposed of by her will as her separate estate. But what remains of her original share, if any thing, will then belong absolutely to her children or issue if she has any ; and if she has none, it will then belong to her surviving sisters and brother, and the children or issue of such of them as have died leaving issue, in fee.

In trusts of personal estate, or of money which is infinitely divisible in its nature, a suspension of the absolute ownership as to one part of the fund for a longer period than is allowed by law, will not make void the disposition which has been made of another part thereof. As the statutory rules as to limitations of future contingent interests in lands are applicable to similar interests in personal property, any limitation of a future interest or use in any particular portion of a personal fund, which would have the effect to suspend the absolute ownership of that part of the fund for a larger period than is allowed by law, would be absolutely void in its creation. But it does not follow from this, that every interest which has been created in that particular part of the fund is also void, if it is in the nature of a separate and distinct estate or interest therein. And as the revised statutes have not prohibited express trusts of personal property for any purposes which are legal, it follows of course, that where personal estate is vested in trustees upon various trusts, some of which are valid and others void, the courts must sustain those which are legal and valid if they can be separated from those which are illegal and void.

In the present case, no material change in the disposition which the testator intended to make of his property will be produced by separating the unauthorized trusts relative to the house and lot in Market-street, and the power to lease his other real property, from the trust to convert such other real property into personalty and to invest the same with the other personal estate, upon the other valid trusts specified in the will.

As the equitable conversion of the real estate into personalty has reference to the death of the testator, if the rents and profits previous to the actual conversion are distributed equally among the five children, the three daughters must be allowed the interest on $6000 of their shares from the same time, as an equivalent for the value of the house and lot devised to the son ; and Ann must be allowed interest on .same sum, less the $1200 specified in the will. As between Ann and her husband, the rents of her share of the real estate, except those of the house and lot in Market-street, will belong to her, from the death of the testator, as a part of her separate estate, according to the intention of the testator as stated in his will.

A decree must therefore be entered, declaring the construction of the will accordingly ; and directing the executor to sell the real estate, except the Market-street house and lot and the house and lot devised to the son, and to invest the proceeds thereof according to the directions of the will; except the share of the personal estate and of the converted fund belonging to the complainant, which is to be paid to him absolutely. The costs of all parties are to be paid out of the principal of the personal property; so as to give the daughters the benefit, immediately, of all the income of their respective shares which has already accrued. And it must be referred to the injunction master in Albany, to take all proper accounts relative to the estate ; and authorizing the executors to pass their accounts annually before him, or his successor in office, upon due notice to the parties interested in such accounts, or to their solicitors. Liberty must also be given to any of the parties to apply to the court from time to time, upon like notice, for such other and further directions in the premises as may be necessary.


text:
    Storm vs. Badger and others.
    Where the complainant after filhg a bill in chancery against his judgment debtor upon the return of an execution- unsatisfied, takes out a new execution upon his judgment and levies upon the property of the defendant, but which is insufficient to satisfy the debt, he is not compelled to elect either to dismiss his bill in this court or to abandon his execution. But he may proceed here to collect the residue of the debt which cannot be raised by a sale of the property on the new execution at law.
    It is a good plea in bar, to a creditor’s bill filed upon the return of an execution unsatisfied, to obtain satisfaction of a judgment out of the equitable interests and choses in action of the defendant, that such defendant had property oat. of winch the judgment might, have been satisfied, wholly or in part, which property was not levied upon by the officer, who held the execution, in consequence of collusion between him and the complainant.
    February 17.
    This was an application on the part of L. Badger and L. W. Badger, two of the defendants, that the complainant’s bill be dismissed with costs ; or, that he should elect whether he would proceed at law or in equity for the satisfaction of his judgment which had been obtained in the supreme court against J. Crooker and L. Badger. The bill was in the usual form of creditors’ bills, as to the judgment debtors ; and the other defendants were made parties to reach property in their hands belonging to such judgment debtors. An execution was issued, and was returned unsatisfied, before the filing of the bill. But L. Badger pleaded, in bar of the suit, collusion between the complainant and the sheriff, in procuring the execution to he returned unsatisfied when he, L. Badger, had goods to the amount of ninety dollars and upwards which might have been levied upon by such sheriff. The motion was founded upon the bill and plea; and upon an affidavit stating that issue had been taken on the plea, and that another execution had been issued upon the judgment subsequent to the filing of the bill.

      D. S. Dickinson, for the complainant.

      John A. Collier, for the defendants.
   The Chancellor.

This is not a case for compelling the complainant to elect. The object of the suit in this court is to aid the execution at law ; and not as a mere substitute of an equitable instead of a legal remedy. To compel an election, therefore, the defendant must show that the complainant is proceeding in each court in a manner in which if he succeeds, he will obtain satisfaction of his whole debt. Here the debt is about $900, and it is not alleged that the defendant Badger has property to exceed $90 or $100 which can be reached by the new execution, even if such property was still in his possession when that execution was issued. And there has been no receiver appointed in this suit, who could protect that property from being levied on by other creditors notwithstanding the injunction. Compelling the complainant to elect, would, therefore, be to deprive him of the power of reaching that part of the debtor’s property by his execution, without any certainty of obtaining satisfaction of his whole debt by his suit in this court; even if he succeeds in reaching other property here. To authorize the defendants to come here for such relief as is asked for by this motion, they should show that the complainant, by his subsequent execution, had levied upon, or at least that he was able to levy upon, property sufficient to satisfy his whole debt and costs, on a sale of such property by the sheriff. (Cuyler v. Moreland, 6 Paige’s Rep. 273.) If the defendant, L. Badger, establishes the truth of his plea, the bill, as to him, will be dismissed ; and if he fails, the complainant will not be permitted to obtain a double satisfaction of his judgment. Upon the final hearing, if either party desires it, a reference will he directed, of course, to ascertain the amount then due on the judgment.

The motion in this case is therefore denied, with costs.


text:
    Gibson and others vs. Woodworth and others.
    The courts of the United States, under the patent law of July 4th, 1836, have exclusivo cognizance of suits in' equity relative to interfering, patents ia cases where the court under that law is authorized to declare a patent inoperative and void, either wholly or in part,, or as to any particular portion of the United States.
    Whether the court of chancery has concurrent jurisdiction with the federal courts in cases in. which rights under the patent laws come in question collateral!)', or in suits in which the nature of the relief asked for would not have the effect to invalidate the patent; Querré ?.

    March 3.
    ' This was an application for an injunction to restrain the defendants from using, or granting to any other person the right to use, a planeing machine in the county of Albany, in virtue of a patent granted to William Woodworth, in November, 1836. The ground upon which relief was sought was, that this patent was an infringement of a right which the complainants claimed they had obtained under a previous patent to Woodworth ; which they alleged to be substantially the same improvement for which the last patent was obtained. They also claimed the right to the benefit of the last patent for the county of Albany, as the assignees of a covenant or covenants entered into by Woodworth with the assignees of the first patent. In opposition to the motion the affidavit of Woodworth was produced, in which he stated that the machine for which he obtained the patent in 1836, was not an infringement upon, nor in addition to the machinery of the planeing machine previously patented to him, and claimed by the complainants as special assignees; ncc was it an alteration of such previous patent.

      Ira Harris, for the complainants.

      S. Stevens, for the defendants.
   The Chancellor.

Upon the hearing of this motion I had great doubts whether a state court of equity had jurisdiction to settle the conflicting claims of the parties under these two patents. I therefore gave leave to the complainants to withdraw their application, for the purpose of presenting it to the circuit court of the United States ; which court had an unquestionable jurisdiction of the case, under the seventeenth section of the patent law of July 4, 1836. (Laws of U. S. 1836, p. 242.) But as that suggestion was not acted upon by them, the duty is imposed upon this court of deciding this question of jurisdiction, as well as the merits of the application if the claim of the complainants can be entertained here.

In the case of Burrall v. Jewett, (2 Paige’s Rep. 134,) which arose and was decided long previous to the act of 1836, I arrived at the conclusion that the act of February, 1819, extending the jurisdiction of the circuit courts of the United States to cases arising under the law relating to patents, was not intended to give to the federal courts exclusive jurisdiction of all cases in equity arising under the patent laws. And that the words of the statute, “ shall have original cognizance,” did not necessarily exclude the state courts from exercising original cognizance of such cases also ; except where the object of the suit, or the effect of the decision in such suit, might be to avoid the patent or to render it a nullity, as in the case of Parsons v. Barnard, (7 John. Rep. 144.) Since the decision in Burrall v. Jewett the act of 1819 has been superseded by the revised patent law of 1836. This last law also repeals the provision, in the act of February, 1793, under which the supreme court of this state, in Parsons v. Barnard, declared the courts of the United States had exclusive jurisdiction in suits where the court was directed to declare the patent void upon a verdict against its validity. The language of the 17th section of the act of 1836 is somewhat altered from that which was contained in the act of February, 1819. The section now provides that “ all actions, suits, controversies, and cases arising under any law of the United States granting or confirming to inventors the exclusive right to their inventions or discoveries, shall be originally cognizable, as well in equity as at law, by the circuit courts of the United States,” &c. It is not necessary here to decide whether it was the intention of the framers of that section to give to the circuit courts of the United States exclusive jurisdiction of every case in which a right under the patent laws might come in question collaterally; or even to exclude the jurisdiction of the state courts in any case, except those where, from the nature of the relief to be given, the jurisdiction of the federal courts must necessarily be exclusive under the constitution and laws of the United States.

But upon referring to the sixteenth section of that act it will be seen that, upon such a bill as the present, the court is authorized, in a case of interfering patents, to adjudge and declare a patent inoperative and void, either wholly or in part, or in any particular portion of the United States. Upon the principle, therefore, on which the decision in Parsons v. Barnard was based, I think this court has not jurisdiction to settle the conflicting claims of these parties under the two patents of 1828 and 1836.

The application for an injunction must therefore be denied with costs ; without reference to the merits of the case.

Order accordingly.