In Robert v. Corning et al., 89 N.Y. 225, 235, ANDREWS, C.J., said: "Where the trustee is empowered to sell the land without restriction as to time, the power of alienation is not suspended, although the alienation in fact may be postponed by the non-action of the trustee, or, in consequence of a discretion reposed in him, by the creator of the trust."Summary of this case from Industrial Trust Co. v. Colt
Argued April 20, 1882
Decided May 30, 1882
Ch. Francis Stone for appellant Jane R. Corning.
John Clinton Gray for appellant Frederick Robert.
A.J. Vanderpoel for plaintiff, respondent.
Thomas G. Shearman for the trustees of Robert College, respondents.
By section 15, of the article of the Revised Statutes relating to the creation and division of estates in land (1 R.S. 723), the absolute power of alienation cannot be suspended by any limitation or condition whatever, for a longer period, than during the continuance of two lives, in being at the creation of the estate, except in a single case, not material to the present inquiry. What shall constitute such suspension is declared in section 14. Such power of alienation (the section declares), is suspended, when there are no persons in being, by whom an absolute fee in possession can be conveyed. The rule declared in this section, constitutes, under our statute, the sole test of an unlawful perpetuity. Construing sections 14, and 15, together, it is manifest, that where there are persons in being at the creation of an estate, capable of conveying an immediate and absolute fee in possession, there is no suspension of the power of alienation, and no question under the statute of perpetuities arises. But the statute does not prohibit all limitations of estates, suspending the power of alienation. It permits them, within the restriction of two designated lives in being at their creation, and a minority. If the suspension of alienation is effected by the creation of future contingent estates, the validity of the limitation depends upon the question, whether the contingency upon which the estates depend, must happen within the prescribed period. If the suspension is effected by the creation of an express trust to receive the rents and profits of land, under section 55 of the statute of uses and trusts (1 R.S. 728), the lawfulness of the suspension, depends upon the question, whether the trust term is, in respect of duration, lawfully constituted. But the mere creation of a trust, does not, ipso facto, suspend the power of alienation. It is only suspended by such a trust, where a trust-term is created, either expressly or by implication, during the existence of which, a sale by the trustee, would be in contravention of the trust. Where the trustee is empowered to sell the land, without restriction as to time, the power of alienation is not suspended although the alienation in fact may be postponed, by the non-action of the trustee, or, in consequence of a discretion reposed in him, by the creator of the trust. The statute of perpetuities is pointed only to the suspension of the power of alienation, and not at all to the time of its actual exercise, and when a trust for sale and distribution is made, without restriction as to time, and the trustees are empowered to receive the rents and profits, pending the sale for the benefit of beneficiaries, the fact that the interest of the beneficiaries is inalienable by statute, during the existence of the trust, does not suspend the power of alienation, for the reason, that the trustees are persons in being, who can, at any time, convey an absolute fee in possession. The only question which, in such a case, can arise under the statute of perpetuities, is, whether the trusts in respect to the converted fund, are legal or operate to suspend the absolute ownership of the fund, beyond the period allowed by law. If the limitation of the interests in the proceeds, is illegal, the consequence might follow, that the power of sale given to accomplish the illegal purposes, would be void. ( Van Vechten v. Van Veghten, 8 Paige, 124.)
It is strenuously insisted by the counsel for the respondent, that the testator intended the will in question to vest the legal title to his residuary real estate in the executors, and that this is the legal effect of the power of sale conferred by the fourth section, in connection with the clause in the eighth section, whereby he directs his executors to divide all the "rents, income or profits from any estate until it is finally distributed semi-annually among those to whom the bequests are made, in the proportion that the amount of the said bequest bears to the said net income or profit." There is no express devise to the executors of the legal estate; but the direction that they shall semi-annually divide the net income and profits, until the final distribution among the several distributees carries with it, by natural implication, an authority to receive the rents, income and profits meanwhile, to enable the executors to perform the duty of dividing them among the several beneficiaries. The testator contemplated that the real estate might not be sold for some time after his death, for by the first clause in the eighth section, he authorizes the executors "in view of the present great depression in real estate," to postpone the sale in their discretion, but for a period not longer than three years after his decease. The presence of the legal estate in the trustees pending a sale, if not absolutely necessary to enable them to perform the duty imposed upon them, to divide the net income and profits, is a convenient and natural arrangement, and the vesting of the legal estate in the trustees by implication, would not, as we construe the will, defeat or disturb any of its provisions, but would be in harmony with its scheme and dispositions. The general rule, that to constitute a devise of an estate by implication, the intention must be clear, is well settled. (Jarman on Wills, 465.) The rule has especial application, and is most stringently applied, where a beneficial devise by implication is claimed, which would divest the title of the heir if the claim should be admitted. This rule has also been frequently applied in cases involving questions under our statute of uses and trusts, where a trust estate, if held to result from the language and dispositions of a will, would render it illegal and void. In such cases the courts, for the purpose of sustaining the will, construe an authority and duty conferred or imposed upon executors, where it is possible to do so, as a mere power in the trust, although the duty imposed, or the authority conferred, may require that the executors shall have control, possession, and actual management of the estate. ( Downing v. Marshall, 23 N.Y. 366; Post v. Hover, 33 id. 593; Tucker v. Tucker, 5 id. 408.) But there are many authorities tending to sustain the proposition, that a trust will be implied in executors, when the duties imposed are active, and render the possession of the legal estate in the executors, convenient and reasonably necessary, although it may not be absolutely essential to accomplish the purposes of the will, and when such implication would not defeat, but would sustain the dispositions of the will. ( Craig v. Craig, 3 Barb. Ch. 76; Bradley v. Amidon, 10 Paige, 235; Tobias v. Ketchum, 32 N.Y. 329; Vernon v. Vernon, 53 id. 351; Morse v. Morse, 85 id. 53. See, also, Brewster v. Striker, 2 id. 19.)
But it is unnecessary to determine whether the executors took under the will in question, the legal title to the real estate, for in the view we take of the will, there was no suspension of the power of alienation, whether the executors took a trust estate, or were simply donees of a trust power. In either character, whether as trustees or as executors only, they could at any time from the moment of the testator's death, have conveyed an absolute fee in possession. The suspension of the power of alienation of the real estate is supposed to result from the direction of the fourth section of the will, that the sale of the testator's real estate, situate in the State of New York, should be made by the executors at public sale in the city of New York, after three weeks' notice by publication in four daily newspapers of the city, and also from the provision in the eighth section that "in view of the present great depression in real estate," the executors might exercise a discretion as to the time of sale not longer than three years after the testator's death. The direction that the real estate in this State, should be sold at public sale, on three weeks' notice, was a prudential arrangement to insure a fair sale, and prevent a sacrifice of the property, and in no proper sense suspended the power of alienation. The direction for notice was a mere incident to the conversion of the property, and the requirement was both usual and reasonable. The statute of perpetuities is not violated by directions which may involve some delay in the actual conversion or division of property, arising from the necessity of giving notice, or doing other preliminary acts. ( Manice v. Manice, 43 N.Y. 303.) Such delays are not within the reason or policy of the statute. The statute was aimed against the creation of inalienable trust estates, or contingent limitations, postponing the vesting of titles beyond the prescribed period. The act of 1837 (Chap. 460, § 43), provides that sales of real estate made by executors in pursuance of an authority given by any last will, unless otherwise directed therein, may be public or private. A public sale implies prior notice. The direction that the sale should be public was clearly valid, and it can make no difference upon the point now in question, whether the length of the notice (if reasonable) is prescribed by the testator or is left to the judgment of the executors.
We are also of the opinion that the discretion vested in the executors to delay the sale of the real estate not exceeding three years, did not create a trust term for any period of time and involved no suspension of the power of alienation. The discretion, as the testator declares, was given in view of the depression in real estate. In the absence of any provision in the will, the executors would have a reasonable discretion as to the time of sale, to be exercised in view of all the circumstances. The power of sale was not fettered by the discretion given by the will. The executors could sell and convey the land at any time, by a perfect title. It may be conceded that they were bound to exercise their discretion in good faith, and to delay the sale if the interests of the beneficiaries seemed to require it. But there can be no unlawful perpetuity unless the power of sale is suspended, and the mere fact that it might be the duty of the executors, in the exercise of their discretion, to postpone the sale to await a more favorable market, does not, we think, constitute such a restraint as suspends the power of alienation within the statute.
The remaining question on this branch of the case relates to the limitation of interests in the proceeds of the sale to be made by the executors. There was, by the will, an absolute conversion of the real estate into personalty, as of the time of the testator's death, and the several distributees took their interests as money and not as land. ( Kane v. Gott, 24 Wend. 641; Stagg v. Jackson, 1 N.Y. 206.) Were these interests so limited as to vest the absolute ownership within or at the expiration of not more than two lives in being at the death of the testator? (1 R.S. 773.) The executors, in the fourth section of the will, are directed, after selling the real and personal property, and deducting expenses and charges and $30,000 for the testator's wife, to divide the remainder into fifty equal parts, "and if my son Christopher R. Robert, junior, be then surviving, to pay over to him twelve equal parts thereof, but, in case of his death prior to such distribution, upon such distribution to pay over the said twelve parts to his lawful issue in equal portions, share and share alike." The testator, in similar language, gives to his son Frederick, eleven shares, to his son Howell, twelve shares, and to his daughter Jane R. Corning, five shares, and the executors are directed, on the division, to pay the remaining ten shares to "the trustees of Robert College of Constantinople." We are of opinion that the legacies to the sons and daughter of the testator, and to Robert College, vested in the respective legatees immediately on the death of the testator. It is true that there is in the fifth section of the will, no gift to the several legatees, except the gift implied in the direction to the executors upon the distribution, to pay over the shares respectively, and by a general rule of construction, where there is no direct gift, and words of condition such as if or upon are used, in connection with a direction for payment at a future time, the time is regarded as of the substance of the gift, and the legacy is contingent and not vested. But the question is generally one of intention, and the whole will is to be considered in determining the intention of the testator. The intention of the testator in respect to the shares of the sons and daughter, appears to have been to give them the absolute title to their respective shares, subject to a limitation over to their issue, in case of their death before the period of distribution. The postponement of the distribution, which was contemplated, was for the convenience of the estate to enable the executors advantageously to convert the property, and the rents, income and profits which might accrue between the time of the testator's death and the time of distribution were given to the several legatees to be paid semi-annually, in proportion to their interests in the corpus of the fund. These circumstances are regarded as rebutting the presumption against the vesting of legacies, arising from the fact that there is no direct gift, but only a direction to pay over at a future time. The postponement of the payment, where it is made for the convenience of the estate, is consistent with the vesting of the legacies, and the gift of the intermediate income, indicates an intention to vest the corpus from which the income is to be derived. ( Packham v. Gregory, 4 Hare, 396; Hanson v. Graham, 6 Ves. 239; Davies v. Fisher, 5 Beav. 201; 1 Jar. 843; 1 Rop. on Leg. 573; 2 Wms. on Exrs. 1243.) It is also to be observed that in the fifth section of the will, which provides for the contingency of the death of a child without issue, before the death of the testator, the testator designates the interest which is to go to the survivors, as "the share or proportion of my estate hereby given to the one so dying." The limitation over to the issue of any child dying before the distribution, was the limitation of a future contingent estate to such issue, but the ultimate vesting of the several legacies given primarily to the sons and daughter, could in no event be postponed longer than the life of the parent. On the death of any son or daughter before distribution, leaving issue, the share of the one so dying would immediately vest in such issue, and if there was no issue, it would go to his or her next of kin. (See Norris v. Beyea, 13 N.Y. 273; Trustees, etc., v. Kellogg, 16 id. 83.) The legacy to Robert College was also vested, and we perceive no ground upon which its validity can be questioned. It is not claimed that the corporation was not capable of taking the legacy, and the fact that the testator restricted the college to the use of the income was consistent with the purpose of donations to such corporations, and did not create a perpetuity. ( Wetmore v. Parker, 52 N.Y. 450.) The provision that if the college should be discontinued, the trustees should apply the fund for purposes of Evangelical and Protestant education among the nationalities of the Turkish empire, if held to be void as a limitation over for the benefit of unascertained beneficiaries, or for other reason, would simply result in confirming an absolute title to the fund in the corporation.
We think the sixth section of the will is valid, within the rule that a testator may direct that the amount of a legacy once completely fixed by the will itself, shall be diminished by events actually occurring as matters of fact, but not by an unattested testamentary writing, disconnected from any actual occurrence. ( Langdon v. Astor, 16 N.Y. 26.) The sixth section was, we think, intended to provide simply, that any actual indebtedness found charged concurrently therewith on the testator's books of account, should go in diminution of the payments to the several legatees as a part of their shares respectively.
These views lead to an affirmance of the judgment.
All concur, except TRACY, J., absent.