Titus v. Weeks

(dissenting.) I am unable to concur in the conclusion • at which my brethren have arrived. I agree with them that the period fixed by the testatrix for the distribution of her estate is the time when John A. Whitson, if he • had lived, would have attained the full age of twenty-one years, and that the executors are to hold the estate as trustees until that time. This, in my opinion, suspends the absolute ownership of the property until that period f and the question of difference between us is whether there is any suspension at all, for it is conceded that if there is, then it is a suspension for a fixed time, a prescribed number of years, and' not limited by any life or lives in being, and is consequently unauthorized by our law.

It was evidently the intention of the testatrix to increase the fund to be distributed, by the addition to the estate of • which she should die possessed, of the interest that should accrue thereon subsequent to her death up to the time of the division and distribution thereof directed to be made. This . increased fund is made the basis of such division and distri- ■ bution, and although it is true that the interest thus accrued is to be paid from time to time to four of her nephews named *151by her, and thus in one aspect of the case there is no accumulation, yet there is such in fact for all substantial purposes. The. interest, and the whole of it, is made a part of that fund, and although paid over in the meantime, it is so paid more in the nature of an advance than as an absolute payment, inasmuch as it is declared to form a part of the one half of the “ gross sum” to which these nephews are entitled in the distribution of the increased fund. In any view of the case, a portion of the fund to be distributed is accrued interest. To produce that interest the principal is necessarily retained in thé hands and under the control of the executors, as trustees. ■ That control is to be exercised by them for a specific period or term, and the entire estate is vested in them for that purpose; and conceding that the ultimate distributees may have vested estates or interests in the fund to be divided, yet they cannot confer an absolute and immediate ownership of-the property upon any one. The estate of the trustees prevents such an alienation, and there are no persons in being by whom an absolute ownership can be conveyed, nor can there be until the time designated by the testatrix for its distribution.

If I am right in these views, the absolute ownership and power of alienation of the property is suspended for a longer period than is allowed by law, and the judgment of the special term should be affirmed.

Judgment reversed.

Emott, Brown and Lott, Justices.]

The will of Rachel Weeks directed all her property to be converted into personal estate immediately upon her death. It does ■ not appear whether she left any real estate, but that is immaterial, since under the directions of the will the trusts and limitations are to be treated as limitations of personal estate.

The provisions of the will are substantially these: The whole fund is to be placed and kept at interest during the minority of John A. Whitson, and all the interest paid to the testatrix’s four nephews, Warren, Albert, Thomas and Henry Mitchell, equally. When John A. Whitson shall arrive at full age, the fund is to be divided as follows : The amount of interest paid to the four nephews is to be computed, and then one half of an amount formed by adding this interest to the principal of the fund, is to be divided equally among the four nephews. The other half is directed to be disposed of as follows: One thousand dollars to be placed at interest, and the interest paid to Smith Whitson during his life, and *146at his death the principal sum of one thousand dollars to he paid to the children of Smith Whitson/ in the proportion of ■ one share to a daughter and two shares to a son. Hext, out of this half of the estate, at the period of the majority of John A. Whitson, two hundred dollars is bequeathed to Isaac Weeks, and the-residue of such half is to be divided into-four parts, of which three parts are given to the children of Smith Whitson, and one part to Ann Mowbray, a sister of the testatrix.

The direction in this will to ascertain the amount of the legacies to the various beneficiaries, by adding to the principal of the fund the amount of interest which should have been paid to the four nephews, is not a direction for accumulation. Ho amount is to be actually received and retained and added to the fund, but the amounts which have been paid over to the four legatees are merely to be computed as a part of the fund, before • dividing it between them and their co-legatees. This is a method of computation—of ascertaining or declaring the amount of their shares—and not an accumulation. " It in effect charges them with one half of what they receive during the minority of John A. Whitson, as a part of their shares of the estate.

The first question of importance is, what is .the period-fixed for the distribution; whether the executors are to hold the estate as trustees until the period at which John A. Whit-son would have become twenty-one years of age, or only during his life, if he should die before that period. John A. Whitson did not live to become twenty-one, and if the time" for distribution is accelerated by his death, it will have a. most material effect upon the execution, "as well as the construction, of this will. •

I am "of opinion, however, that this period of the minority • of John A. Whitson is not a minority dependent upon life, but is a definite term extending until the time when that minority would terminate, or in the event of his death, which has happened, would have terminated. It must be observed *147that J ohn A. Whitson takes no interest whatever either in the income or in the principal of the fund. He is not a legatee or a beneficiary in any way. The time of distribution is not postponed, nor the ownership of the fund suspended, if it be suspended, for his benefit. If there were a trust created to pay over to him or apply for his benefit the income during his minority, it would be reasonable to suppose that with the termination of his life the trust "should determine, equally as upon the termination ■ of his minority. But the name and the minority of J ohn A. Whitson are used in this will simply to indicate the period of distribution, and as a measure of time. It is plain that the testatrix had in inind a definite period during which she desired that the four nephews, whom she named, should receive the benefit of the whole income of her estate, and that she also intended that the final distribution of her estate should not take place until the end of that period. It would be doing violence to her intention, and to the whole structure of her will, to hold that all its provisions should be changed, and the distribution of her estate so materially accelerated, by an event which she does not seem to have contemplated, and which does not necessarily produce any change or effect upon the directions of the will, or the enjoyment of the property.

It follows from these premises, that if the absolute ownership of the whole or of any part of the estate is suspended by the direction to pay. or apply the interest to the four nephews during the minority of John A. Whitson, the whole disposition of the estate made by the will is void. For the minority of John A. Whitson being a fixed term, and not dependent upon his life, it would be illegal to suspend the ownership of the property for such a period, without reference to the future limitations. The rule of the statute is that life must be the measure of the period during which a suspension of the absolute ownership of personal property is permitted, and that it cannot be measured by any number or term of years, however short.

*148I do not however so regard the provisions of this will. The four nephews, Warren, Albert, Thomas and Henry Mitchell, take an absolute interest in- the legacies given to them respectively. Their legacies are dependent upon no condition. They are certain, ór capable of being rendered certain in amount, and they are payable at a definite period, while in the meantime the legatees are to receive the interest or income. These four nephews are as" much the "absolute owners of the amounts to be paid to them at the period fixed by the will, as they are of the income in the meantime, and are entirely competent to alienate their legacies or shares of the estate at any time. The bequests to‘them are vested, although the time of payment is. deferred.

Similar observations apply to the legacies to Isaac Weeks and to Ann Mowbray. These-gifts must be sustained by the same rules which have now been applied.

There remain the bequests to, Smith Whitson for life and at his death to his children, and the independent bequest to the children of Smith Whitson. As to the latter, the rule undoubtedly is that the gift will embrace not only the children living at the death of the testatrix, but all such children who may come into existence before the period of distribution. Yet the interests of the persons now belonging to the class are vested, although they are "subject to be divested in part in favor of or in order to let in those who may be born subsequently but before that period. (Jarman on Wills, 75, 76. Tucker v. Bishop, 16 N. Y. Rep. 402.) . If any of the. children of Smith Whitson living at the testatrix’s death "should die;, their shares would devolve to their representatives. The interests .of these children in the bequest to them, payable at the same time as the legacies to the nephews of the testatrix, are as much vested as those given to the latter.

The amount of these legacies, as well as of that to Ann Mow-bray, will depend upon the amount of the residue of the one-half of the estate not given to the four nephews, after deducting the amounts directed by the clauses of the will to be paid *149from it. As to the two hundred dollars given to Isaac Weeks I find no difficulty, as has been already said. The bequest of one thousand dollars to be kept at interest during the life of Smith Whitson for his benefit, and the interest paid to him, and the principal to be divided among his children at his death, presents different and more difficult questions. Still, I have reached, the conclusion that this portion of the will also can be sustained. The interests of the children ultimately entitled to this fund of a thousand dollars, are to be regarded as-vested, upon similar principles to those which govern in the instance of the bequest payable at the period when J ohn A. Whitson’s minority would end. The period of distribution is postponed still further, to the death of Smith Whitson, and any children who might come into being too late to share in the former legacy will, nevertheless, share in this. Still, the children of Smith Whitson now living take vested interests in this bequest, subject, as before, to be divested, pro tanto, in favor of all who might be born subsequent to the death of the testatrix, and in this case previous to the death of Smith Whitson. The intervening life estate in Smith Whitson neither prevents their interests from vesting, nor renders the fund inalienable. F.or the better opinion is that expressed by Judge Cowen, in the court of errors, in Kane v. Gott, (24 Wend. 662,) and followed by this court in several more recent cases, that the provisions of the statute forbidding the alienation by a cestui que trust of his interest ‘ in an express trust, are not applicable to trusts or estates in personal property, if or does the possible diminution of the quantity of the estate which will be payable to each of .Smith Whitson’s children, either at the arrival of the period when J ohn A. Whitson’s minority would terminate, or at the death of their father, render the interest of these children inalienable. Whatever interest each has in either of these bequests is alienable at any time, and if it be diminished by the birth of other children entitled to share in the distribution, the interests of these children, also, will be *150alienable as well as vested and transmissible as soon as they come into being. The case of Tucker v. Bishop (16 N. Y. Rep. 402) was in this particular like the present, and the reasoning of Judge Paige is conclusive upon this question.

I am therefore of a different opinion from my learned associate who heard this cause at the special term, as to the validity of the bequests contained in the will of Bachel Weeks.

I think all these bequests should be sustained, and that the judgment appealed from should be reversed, and a judgment entered declaring the rights of the parties according to the ■ views I have now expressed. The costs of all parties will be paid out of the fund.

Brown, J. concurred.