Coster v. Lorillard

Whereupon, after advisement, the following opinions were delivered by members of the court for the correction of errors :

By Chief Justice Savage.

The validity of the legacies and annuities contained in the first clause of the will has not been argued ; they were conceded to be a charge upon the estate, and to be paid whether the principal trust in the will be sustained or not. That concession was unnecessary.

The estate may be said to be disposed of as follows : Devise to the executors and trustees, and the survivors of them, their heirs and assigns, in trust, to receive the rents and profits of the testator’s lands, and to account for, pay over, and divide the net proceeds among his twelve nephews and nieces, during their natural lives, and to the survivors and survivor of them equally, to be divided share and share alike; with remainder over to all the children of the said twelve nephews and nieces, and the children of such of them as may be dead. In shorter terms: devise to the trustees for the lives of twelve nephews and nieces, remainder in fee to their children. The main question is whether this devise is valid 1

Independent of the Revised Statutes, there could not be a well grounded doubt on the question. The only objection to such a disposition of property arises from the length of time during which it is inalienable, and its tendency to a perpetuity.

Anciently, in the time of the Saxons, an unlimited power of alienation existed in England ; but the Normans introduced the feudal law, and all lands became inalienable. William the conqueror well knew the effect of that system of military tenures, in giving stability to a throne which he had acquired by force of arms. Simultaneously with the introduction of the feudal system, he reduced the ecclesiastical revenues, *295 and compelled the bishops and abbots to furnish, when required, a number of knights or military tenants, in proportion to the property they severally held, and thereby probably laid the foundation of the. hostility of the church to the feudal tenures, which subsequently, by the aid of the court of chancery, effected substantial changes in the system. By degrees the owners of land acquired the power of disposition. This power proved so beneficial, that for many centuries it has become an established rule that real property shall in no case be rendered perpetually inalienable ; in other words, that perpetuities shall not be allowed. The nobility indeed, by the statute de donis, made an attempt to render their possessions inalienable, but the ingenuity of the courts, both of equity and of law, effectually defeated the operation of the statute by means of fines and common recoveries.

The owners of estates have been permitted however to indulge, to a considerable extent, that propensity which seems to be inherent in human nature-—a desire to continue their acquisitions in their own families as long as the law will admit, by means of what are called family or marriage settlements. Of these 1 shall only say, that one mode was that of limiting estates for life to the persons then in being, with remainders to their children, purchase. This was not entirely effectual, because the tenants for life, by destroying their estates, might bar the remainders—and hence the introduction of trustees to preserve contingent remainders. By this means the estate is rendered inalienable till the eldest son of the marriage attains the age of twenty-one, when lie can join with his father in suffering a common recovery by which an estate tail limited to the eldest son and all the remainders are barred, and an estate in fee simple is acquired. Cruise, tit. 32, Deed, ch. 23.

It has become well settled in England, that real property may be rendered inalienable during the existence of a life in being, and twenty-one years after ; that is, till the son of a tenant for life shall attain his full age. From one life the courts gradually proceeded to several lives in being at the same time; for this, in fact, only amounted to the life of the survivor. Provision has also been made for the case of an unborn *296 son of a tenant in tail, to whom an estate tail was limited, and the time of gestation has been added to the twenty-one years ; and it has been said that this time of gestation may, if necessary, be added twice.

It has also become well settled in England, by analogy to these settlements, that an executory devise must vest within the compass of a life or lives in being, and twenty-one years and nine months after.

This subject has been much discussed of late in tho case of Thellusson v. Woodford, 4 Vesey, 227 to 342, and 11 Vesey, 112 to 149, in which Lord Eldon repeats the language of Lord Thurlow in Robinson v. Hardcastle, 2 Bro. C. C. 30, that a man may appoint one hundred or one thousand trustees, and that the survivor of them shall appoint a life estate ; that would be within the line of a perpetuity. What is a perpetuity, asked Lord Thurlow, but the extending the estate beyond a life in being, and twenty-one years after ? Lord Eldon adds, that the language of all the cases is, that property may be so limited as to make it inalienable during any number of lives, not exceeding that to which testimony can be applied, to determine when the survivor of them drops. The testator, in that case, devised liis estate after the death of his three sons and of his grandson, and of such other sons as his own sons might have, and of such issue as such sons might have as should be living at the time of his death, or should be born in duo time afterwards, and after the death of the survivors and survivor, to such person as at that time should then be the eldest male lineal descendant of his son, Peter J. Thellusson, and his heirs forever. In that case there were nine persons at the testator’s death whose lives must be terminated before the remainder could vest; in this there are twelve, and that is the principal difference. In that case the person of the remaider-man was equally contingent with the children of the twelve nephews and nieces in this case, with no other difference except as to the number. In that case the devise was declared to be good and valid in law by the lord chancellor, assisted by the master of the rolls and Judges Buller and Lawrence, and afterwards affirmed in the house of lords up *297 on the unanimous opinion of all the judges. If that devise was good at common law, so is that now before the court.

The only question then will be,-whether our Revised Statutes render such a devise invalid ?

In considering this case, as it is affected by the Revised Statutes, I shall take three views of it:

I. The effect of the statute, supposing the trust to be embraced under the 3d sub. of the 55th section.

II. I shall inquire whether it is a trust under the 55$h section at all.

III. If not embraced in the 55th section, is the trust valid as a power in trust ?

1. In construing statutes, the usual and proper mode is to ascertain the intention of the legislature, from the language they have used, connected with the slate of the law on the same subject anterior to the passage of the statute. When the courts know for what particular mischief the legislature Intended to provide a remedy, it is their duty so to construe the statute as most effectually to suppress the mischief and advance the remedy. It- seldom happens that a key is furnished by the law-making power, whereby the courts may unlock the arcana of the legislative mind, and thus ascertain with unerring certainty the real intention of the legislature. It fortunately happens in this case that we* have such a key; and I hope and trust, that by a proper application of it, light may be thrown upon whatever may appear obscure; apparent discrepancies may be reconciled ; and upon comparison of a 1 its parts, we shall find *• a system simple, uniform and intelligible.”

It is known to us all, that preparatory to the late revision of the statutes, the work of revising, analyzing, collating, composing, and, if there were such a word, I might say codifying,and presenting to the legislature in a new form the statutes of the state, was committed to three gentlemen, distinguished for their legal learning, their ability and their industry. The result of their labors is before us in their reports to the legislature. Whenever their recommendations have betin adopted by the legislature, and their notes have declared the *298 object in view in plain language, free from all technicality, we may safely pursue that object, and in the path pointed out. In relation to article first of the second title of chapter first of the second part of the Revised Statutes, the revisers inform the legislature that the provisions recommended by them are the result of much and attentive consideration, and arc intended to “extricate this branch of the law from the perplexity and obscurity in which it was involved ; and render a system simple, uniform and intelligible, which was various, complicated and abstruse.” The means by which they proposed to effect this object are: “To abolish all technical rules and distinctions, having no relation to the essential nature of property or the means of its beneficial enjoyment, to define with precision the limits within which the power of alienation may be suspended by the creation of contingent estates, and to reduce ail expectant estates substantially to the same class, and applly to them the same rules, whether created by deed or devise.” They subsequently, in the same note, allude to the general principles by which they have been governed, to Wit: “ If a rule of law is just and wise in itself apply it universally, as far as the reasons upon which it is founded extend, and in no instance permit it to be evaded ; if it is irrational and fanciful, or the reasons upon which it is rested have become obsolete, abolish it at once.” These are sound and salutary principles, and as justly entitled to the consideration of courts in expounding the statutes, as of the legislature in enacting them. That great and radical changes were intended to be effected is declared throughout—particularly all expectant estates, uses and trusts, and powers, are expressly abolished—except such as are authorized,enumerated and defined in the several articles relating to these several subjects.

In the further progress of my remarks, I shall quote freely from these notes when necessary, as expressing the intention of the legislature, and as containing the reasons or premises sustaining the conclusion to which I have arrived.

I.refer again to the devise itself. It is a devise of all the testator’s estate, real and personal, to the trustees, their heirs and assigns, as joint tenants, in trust, to account for, pay over and divide among his twelve nephews and nieces, the net *299 proceeds of the income, rents and profits of the estate devised to the trustees, during the natural lives of the twelve nephews and nieces, and to the survivors and survivor of them, equally to be divided between them, share and share alike— with remainder over, after the death of the twelve nephew's and nieces, to such of their children as shall be then living, and to the children of such of them as shall be dead, to be equally divided per stirpes and not per capita.

It is a cardinal rule, in the construction of wills, that the intention of the testator shall be carried into effect if consistent with the rules of law 5 so is the common law'; so are the Revised Statutes. What did the testator mean by the clause to which reference has been made ? On that subject there is no difference of opinion. All agree that the testator intended to prevent the alienation of his estate during the lives of the twelve nephew's and nieces, and for two years after the death of the survivor of them; and that then it should be divided among the children and grand-children of the twelve nephews and nieces. That such was the real and actual intention of the testator is perfectly plain ; and it is also perfectly dear that if that intention is consistent with the rules of law, it is the duty of the court to give it effect.

Previous to the operation of the Revised Statutes, it was competent for a testator to render his estate inalienable for any number of lives in being at the time of his death. “ An estate,” say the revisers, “ is never inalienable unless there is a contingent remainder, and the contingency has not occurred and they give the instance of a grant to A for life, remainder to B. (a person in being) in fee. Here there is no suspense of the power of alienation, because the owners of the life estate and of the remainder may unite, and thus convey the whole estate. This idea they have incorporated, as they supposed, in the 14th section. “ Such power of alienation is suspended, when there are no persons in being by whom an absolute fee in possession can be conveyed.” Unless therefore the owners of the precedent estate, the trustees, can unite with the owners of the remainder, the power of alienation is suspended. According to the doctrine of the revisers, if the remainder is contingent, and the contingency has not occurred, the estate is inalienable.

*300 It will be seen that there are here at least two contingencies to happen before the remainder can be conveyed. 1. The twelve nephews and nieces must die ; but this only renders the time of vesting contingent. 2. The persons to take must be in existence at the death of the last survivor of the twelve nephews.and nieces ; before that period the persons cannot be ascertained, and are therefore contingent. Remainders strictly so called, future uses and executory devises are all denominated expectant estates by the revisers. See vote to § 10. At common law there were, according to Mr. Fearne, four kinds of contingent remainders. 1. When the remainder. depends entirely on a contingent determination of the preceding estate itself. As if A. gives an estate to B. till C. returns from Rome; after the return of C. then remainder over in fee. Here the particular estate terminates and the remainder vests on the return of C., but as that event may happen, the remainder is contingent. 2. The remainder is contingent when some uncertain event must, by the nature of the limitation, precede the remainder: for instance, an estate for life is given to A., B. and C., remainder to B. and his heirs, if he survive C. Here, unless B. survive C. the remainder cannot vest, it is therefore contingent. 3. The third kind is when the remainder is limited upon an event which must happen at some time, hut may not happen till after the determination of the particular estate. A remainder must vest during the continuance of the particular estate, or at the instant of its termination. If the event does not happen during the continuance ol the preceding estate, the remainder is void. Thus, an estate to A. for life, and after the death of B. remainder to C. in foe, this is contingent; for though B. must die, yet he may survive A., by whose death the life estate is terminated, and the remainder will be void, because it could not vest before or at the termination of the life esiate. 4. The fourth kind is when the remainder is limited to a person not ascertained, or not in being at the lime when such limitation is made; as where an estate is limited to two persons for their joint lives, remainder to the survivor in fee—such remainder is contingent because it is uncertain which will survive—so the usual remainder in marriage settlements to the first and other sons *301 of the intended marriage, is a contingent remainder. Cruise, tit. 16. Remainder, ck. 1, § 10 to 27.

In the case now under discussion, the remainders fall under the fourth class of Mr. Fea me: the persons who are to take arc not ascertained, and probably not in being. The event here upon which the remainders are to vest, is the death of the survivor of the twelve; and their children who are to take, are such as shall be then in being, and the children of such as may be dead. The devise is not to such children of the twelve as should be living at the death of the testator; they may be all dead before the death of the survivor of the twelve. It was perhaps unnecessary for me to have referred to the former definitions of contingent remainders, as the statute before us contains all that are necessary to a clear understanding of this ease. By § 10, a future estate is an estate limited to commence in possession at a future day, either with or without a precedent estate. By § 11, a future estate dependant on a precedent estate, is termed a remainder. By the statute definitions, therefore, the estate given to the grand-nephews and nieces is a rema rider, and is what is called a future estate; it is also dependant upon the precedent estate, which is the estate vested in the trustees for the lives of the twelve nephews and nieces. Thus far then we have, in the language of the statute, the precedent estate in the trustees, which may be called a present estate, and we have the remainder over in fce, which is a future estate, and these two compose the whole estate which the testator himself had. I shall hereafter take notice of the interest of the twelve nephews and nieces ; I atn now speaking of the estate in the lands which are the subject of the devise. Section 13. Future estates are either vested or contingent. They are vested when there is a person in being who would have an immediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate. They are contingent whilst the person to whom, or the event upon which they are limited to take effect, remains uncertain. These definitions of vested and contingent remainders, it will be seen, are very different from the common law definitions of those estates. At the common law, vested remainders are those by which a present *302 interest passes to the party though to be enjoyed in future; and by which the estate is invariably fixed to remain to a determina'e person after the particular estate is spent. Cruise, tit. 16, Rem. ch. 1, § 8. By this definition, the remainder in the present case is not embraced; for, by the devise, a present interest does not pass to any particular determinate person, to whom it is to remain invariably fixed. On the contrary, the persons who are to enjoy the remainder are unknown and must be of course contingent until the death of the twelve nephews and nieces. But by the statute definition this is a vested remainder, because there .arc persons in being who would have an immediate right to the possession upon the ceasing of the precedent estate, that is, there are persons in being who would take the possession of the estate were the precedent estate now to cease. Should the twelve nephews and nieces all die this day, there are persons now in being who would be entitled to the remainder under the devise.

This remainder is also contingent, according to the statute definition—the event upon which it is limited to take efi'oet is certain, to wit, the death of the twelve nephews and nieces; but the persons who are to take are uncertain, depending upon the fact of their being in existence at the death of the last of the twelve. If the remainder now vests in the fifteen grand-nephews and nieces, the estate is not, in the language of Mr. Cruise, invariably fixed to remain to a determinate person—for all who shall be born before the death of the twelve nephews and nieces will also be entitled to a share. It was contended upon the argument, that this was an estate which would open to let in after-born children. It is not necessary, I apprehend, to discuss that point, though such must be the case, if this is a vested remainder. Whether, however, the remainder be vested or contingent is not a controlling fact in the case, and does not determine the rights of the parties.

The 15th section declares that the absolute power of alienation shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance of not more than two lives in being at the creation of the estate. By § 14, the power of alienation is suspended where there are no persons in being by whom an absolute fee in pos *303 session can be conveyed ; and by the same section, every future estate shall be void in its creation which shall suspend the absolute power of alienation for more than two lives in being at the creation of the estate. A present estate which should have the same effect is not necessarily void in its creation. It is therefore important to inquire whether the estates granted in the present devise, are present or future, and whether the absolute power of alienation is thereby suspended for a longer period than is permitted by the statute ? At the death of the testator, the estate of the trustees vested immediately; that is therefore a present estate; but the remainder over is limited to commence in possession at a future lime; that is therefore a future estate.

To determine whether the power of alienation is suspended by cither or both of these estates, we must ascertain whether there are persons in being by whom an absolute fee in possession can be conveyed. It is argued that the power of alienation is not suspended, because an absolute fee in possession can be conveyed—that the trustees, the twelve nephews and nieces who are entitled to the net proceeds of the rents and profits, and the grand-nephews and nieces in whom the remainder vests, may all unite in a conveyance, by which the whole estate may be alienated. To this it is answered, that the trustees cannot convey, because the 65th section declares, that when the trust shall be expressed in the instrument creating the estate, every sale, conveyance or other act of the trustees in contravention of the trust, shall be absolutely void. The creator of the trust intended it should continue during the lives of his twelve nephews and nieces. The trustees cannot therefore legally convey ip contravention of their trust: it is not enough that they have the physical power to execute a conveyance; the statute requires the moral legal power. To be able to convey within the meaning of the 14th section, the persons must be able to execute a legal valid conveyance; an absolute fee in possession must be conveyed, which cannot be done by a deed which is void the moment it is executed. To my mind it is clear that the trustees cannot legally convey their estate.

*304 In my judgment it is equally clear that those beneficially interested'in the rents and profits cannot convey. Sect. 63. “ No person beneficially interested in a trust for the receipt of the rents and profits of lands can assign it, or in any manner dispose of such interest.” In answer to this, it is said, that by the devise the twelve nephews and nieces may convey with the assent of the trustees or a majority of them. I reply, the statute says they shall not; the statute is paramount, and must control the permission in the will; and as the statute forbids the sale or transfer, any assent by the trustees would itself be invalid and void. The trustees can do no valid act which is contrary to law, or contrary to the will of the testator. When the testator says that the trustees shall hold the estate for twelve lives, it is a violation of the trust to dispose of it by way of sale; or to convey to any but those designated to receive it, unless by order of some court of competent jurisdiction.

It may be doubted, perhaps, whether the twelve nephews and nieces have any interest to convey. Section 60 says, that “ every express trust, valid as such in its creation, except as herein otherwise provided, shall vest the whole estate in the trustees, in law and in equity, subject only to the execution of the trust. The persons for whose benefit the trust is created shall take no estate or interest in the lands, but may enforce the performance of the trust in equity. This is positive and plain ; the whole legal and equitable estate is vested in the trustees, and the twelve nephews and nieces have no estate or interest. The whole legal and equitable estates embrace the whole estate; there is nothing left. There may be liens upon it, but they constitute no part of the estate itself; the twelve nephews and nieces have no estate or interest to convey; all they have is a mere right to compel the performance of the trust; more like an unassignable chose in action than an estate in lands; and this right they are prohibited from conveying.

I have shown that the trustees cannot lawfully convey ; and that alone renders the estate inalienable. I apprehend also, that the remainder-men cannot convey,for the reason that the persons who are to take the remainder are contingent, and *305 cannot be ascertained until the death of the survivor of the twelve nephews and nieces—but this point will be discussed hereafter. If I am correct that all of these persons, or either of them, cannot convey legally, so that a fee in possession can be transferred, then it follows that the power of alienation is suspended.

It will be seen by the devise, that the time of suspension is during the natural lives of twelve persons, the nephews and nieces of the testator, who are named in the devise; that is, during the continuance of twelve lives in being at the creation of the estate. The 15th section says, “ The absolute power of alienation shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance of not more than two lives in being at the creation of the estáte.” The devise in effect says, that the absolute power of alienation shall be suspended during the continuance of twelve lives in being at the creation of the estate, and for at least two years afterwards. There is a manifest repugnancy, and at least so much as is repugnant must be void.

Before I pursue this subject further, I will consider an objection to the application of the 15th section to this case, which was urged upon the argument. It was said that the 15th section was applicable to future estates only. The reason for that assumption is, that future estates alone were the objects of the six previous sections. The juxta position of these sections is not alone sufficient to authorize the court to say, that future estates only were intended, when the language is broad enough to embrace all estates attempted to be conveyed by “ any limitation or condition whatever.” But there is a conclusive answer found in the notes of the revisers, and the amendments made by the legislature to that section as originally reported, together with the rejection of the 17th section as reported. The 15th section as reported, reads thus: “ The absolute power of alienation shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance and until the termination of a life or lives in being at the creation of the estate.” The 17th section as reported, reads thus: In every creation of a future estate the *306 absolute power of alienation shall not be suspended longer tjjan the lives of two persons then in being” Did the revisers mean the same thing by these two sections ? or did they mean that property might be rendered inalienable by a present estate for any number of lives in being at the creation of the estate, and future estates for only two such lives ? or did they mean that after the termination of a present estate, which should continue for any number of lives in being at the testator’s death, that then a future estate should be created by conveyance from the trustees which should continue for two lives then in being: that is, two lives in being at the termination of the lives in being at the death of the testator ? This would be going as far as Lord Thurlow, in Robinson v. Hardcasile, allowing the survivor of one thousand trustees to appoint a life estate ; and which was attempted, but not permitted, in Humberston’s case. The note of the revisers upon sections, from 14 to 22, states the leading objects in view in those sections. They state that by means of executory dispositions of land and its profits, as the law then stood, the land itself might be rendered inalienable for a life or lives in being, and twenty-one years thereafter ; that by means of a springing use or executory devise, it might be rendered inalienable longer than by an entail; that any number of lives might be introduced for the purpose of protracting the period of alienation ; that in these sections they have proposed some new regulations which will considerably abridge the present power of rendering real estate inalienable. They state the difference to be the following: 1. That alienation by these sections cannot be protracted by means of mere nominees unconnected with the estate, beyond the period of two lives. 2. That no more than two successive estates for life can be created; and 3. That the period of twenty-one years after a life or lives in being, is no longer allowed as an absolute term ; and they suggest “ whether the genius of our government, and the state of our society, do not require that the right of suspending alienation should be still further reduced.”

From these remarks it is evident that the object was to abridge, not to enlarge the period of inalienability; that the termination of any number of lives selected by the testator was *307 the utmost limit; and that in respect to future estates, that number of lives should not exceed two. When the subject was acted on by the legislature an alteration was made; whether it was first suggested by the revisers or some member of the legislature, does not appear; but by a special report it does appear that the revisers recommended an alteration of the 15th section, in the manner in which it now appears, to wit: that the power of alienation shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance of not more than two lives in being at the creation of the estate. They recommended to the legislature to strike out the 17th section, as being rendered unnecessary by the above amendment. Both these amendments were adopted, showing conclusively the intention of the legislature that the same rule should be applied to the inalienability of real estate, whether it is attempted by means of creating a present or future estate. Such inalienability shall not continue beyond the termination of two lives in being at the creation of the estate. It makes no difference, therefore, by what sort of limitation or condition the attempt may be made; the matter is settled—inalienability for a longer period cannot be effected. This is doing what the revisers recommend, to wit: " to define with precision the limits within which the power of alienation may be suspended by the creation of contingent estates,” and in consonance also with some general principles recommended by them which have been already quoted. The legislature, doubtless, saw no reason why estates should be rendered inalienable in this state, for so long a period as was lawful before the passage of the revised statutes, which were then before them, and they reduced the period, as being better suited to the nature of our institutions, as a free as well as a commercial people. Nor was there any reason why property should be rendered inalienable by means of a present estate, rather than by a future estate.

But to return to the deviso, I have said, and I think it has been shown, that there is a manifest repugnancy between the statute and the devise to the trustees. The statute fixes the limit of the inalienability of the estate to the termination of two lives. The devise extends such inalienability to twelve lives. It is clear therefore, that the devise to the trus *308 tees cannot be sustained in its full extent. The question then arises, is the whole devise void, or can a part be supported upon the doctrine of cypres ? There is nothing new in that doctrine •, there are many cases in the books in which it has been applied, and it is now a part of our statute law. 1 R. S. 748, § 2. “ In the construction of every instrument, creating or conveying, or authorizing the creation or conveyance of any estate or interest in lands, it shall be the duty of courts of justice to carry into effect the intent of the parties, so far as such intent can be collected from the whole instrument, and is consistent with the rules of law.” The general intent of the testator was to make his estate inalienable as long as the law would permit; that is a lawful intent. In this case he attempted to render the estate inalienable during the continuance of twelve lives ; that intent is not consistent with the rules of law, and therefore cannot be carried into effect to that extent. It is consistent, however, with the rules of law, that any testator should tie up his estate, and render it inalienable during the continuance of two lives. In the language of Mr. Justice Wilmot, 3 Burr. 1635, “ Let his intention therefore take place as far as it can go ; but it can go no further.” It seems to follow that it is the duty of the court to carry the testator’s intent into effect to that extent. By the cypres doctrine, which is now statute law, it is the duty of the court to carry that intent into effect, as far as is consistent with the rules of law. And that is done by construing this devise, as if the direction to pay over the net proceeds of the rents and profits of his real estate to his nephews and nieces, instead of saying during their natural lives, had said during the natural life of such two of my nephews and nieces as shall soonest die. He might have selected any two by name, but not having done so, no other selection can be made by the court than as above. There are in the revised statutes themselves numerous instances of the application of the cypres doctrine. I will refer to a few. The 17th section provides that when a remainder shall be limited on more than two successive estates for life, all the life estates subsequent to those of the two persons first entitled thereto shall be void ; and upon the death of those persons the remainder shall take effect. That is cypres, viz. carry into effect the intention of the party *309 ■is far as you can, to wit: as far as is consistent with the rules of law.' Other instances are found in the 19th section, in the 37th, and many more, which I will not now particularly designate. In short, in all cases where a party attempts to go beyond what the law allows, the instrument shall be construed as though it went no farther than the law permits. The 37th section contains a clear illustration. There it is provided, that when an accumulation of rents and profits is permitted during the minority of any person—if the testator attempts to carry it further, the provision is not all void, but only so much as goes beyond the minority, that being the limit fixed by law. That is the doctrine of cypres. There are several instances in which the legislature declare, that when an instrument attempts to create a larger estate than the law allows, such estate shall be void in its creation; section 14 is such an instance. My conclusion, therefore, upon this view of the case, assuming what Í shall presently deny, that the trust itself is lawful, would be that the estate in the trustees is good, during the continuance of two lives ; and that as soon as two of the twelve persons named shall have died, the estate of the trustees must cease. The inquiry seems naturally to present itself, upon whom does the title fall at the termination of the estate of the trustees ? It must necessarily go to those in remainder, or to the heirs at law. It goes to those in remainder, if that part of the devise is valid. I have shown that by the definitions of the statute, the remainder contained in this devise is a future estate. It is an estate limited to commence in possession at a future day, on the determination of a precedent estate created at the same time; and whether it is vested, or contingent, or both, is quite immaterial, unless upon the fact of its being either vested or contingent, depends the question whether it suspends the power of alienation.

I must again refer to the notes of the revisers as explanatory of this branch of the case. “ To prevent a possible difficulty,” say they, “ in the minds of those to whom the subject is not familiar, we may also add, that an estate is never inalienable, unless there is a contingent remainder, and the contingency has not yet occurred. When the remainder is vested, as when the lands are given to A. for life, remainder to B. (a *310 person then in being) in fee, there is no suspense of the power of alienation, for the remainder-man and the owner of the prior estate, by uniting may always convey the whole estate. This is the meaning of the rule of law prohibiting perpetuties, and is the effect of the definition in section lé.” That definition is as follows: “ Such power of alienation is suspended, when there are no persons in being, by whom an absolute fee in possession can be conveyed.” This definition, it will be seen, is exemplified in the instance put by the revisers, of a life estate granted to A., remainder to B in fee. Here there is no contingency as to the person entitled to the remainder; and it is true that the whole estate can be conveyed by A. and B., uniting in a conveyance. But I will put this case: an estate for life to A., remainder to the eldest son of B., who shall be living at the death of A. Suppose B. has a son living at the creation of the estate. Can there be a union of the life estate and remainder so as to convey the whole estate 1 Manifestly not. Here is a contingency which has not occurred, and cannot be determined until the death of A. Such a remainder would necessarily suspend the power of conveying an absolute fee in possession, until the death of A., and yet there is a person in being who would have an immediate right to the possession upon the death of A. We will suppose, however, that A. and B.’s son, unite and convey to C. what purports to be the whole estate. But before A.’s death, B. had another son born, and the eldest son dies, then A. dies, what becomes of C.’s remainder % It goes according to the grant or devise to the eldest son of B., living at the death of A., and C. loses it.

The case I have supposed is in principle the case now before us. Suppose, for the sake of the argument, that the trustees can convey, though I have shown that they cannot—suppose, too, that the twelve persons beneficially interested in the rents and profits can convey, though the statute says they shall not—and I will for the present suppose that a conveyance from them is necessary for the purpose of alienation—suppose they and the trustees are ready and willing to unite in a conveyance to transfer an absolute fee in possession. It is very clear that they cannot do it alone, for the interest and estate *311 of all of them ceases, by the terms of the devise, upon the death of the survivor of the twelve nephews and nieces. Application is then made to the grand-nephews and nieces now in existence ; and who would take were the twelve nephews and nieces now to die—what estate can the grandnephews and nieces convey 1 They are indeed persons answering the description in the devise as owners of the remainder ; they may be said to stand in the character of heirs presumptive j whether they will ever enjoy the remainder of the estate depends upon a contingency—it depends upon the fact of their surviving all the twelve nephews and nieces. But to test it still farther; suppose all parties unite in a conveyance to John Stiles, and he takes possession. The nephews and nieces continue to increase and multiply and replenish the earth with a numerous progeny; they live to a good old age themselves, and one of them, as we all know is consistent with possibility, should more than double the ordinary period of human existence ; in all probability the fifteen grand-nephews and nieces now in existence, will have descended to the tomb, and their children or grand-children, together with all the other descendants of the original twelve, will claim their shares as purchasers. They take under the original devise, not by descent, and the conveyance of their particular ancestor is no estoppel to them. Is it not clear that John Stiles, or his descendants, mast give up the possession 1 The truth is as I have already stated, that the present fifteen grand-nephews and nieces have no present estate ; they have a possibility. If they survive the twelve nephews and nieces then they take their proportion; if they die, no interest of theirs in the estate in question can descend to their heirs. It is impossible, then, to convey an absolute fee in possession; and this impossibility results upon the previous supposition, from the fact that the estate given in remainder suspends the power of alienation during the continuance of twelve lives. That the estate in remainder is a future estate, dependant upon a precedent estate, has already been shown. Parts of the 14th and 15th sections close this view of the case, and draw the conclusion resulting from these premises. Every future estate shall be void in its creation, which shall suspend the absolute power of *312 alienation for a longer period than during the continuance of not more than two lives in being at the creation of the estate. The remainder over was therefore void in its creation.

Unless I greatly deceive myself, I have established these propositions:

First. That as to all estates, whether present or future, the absolute power of alienation shall not be suspended beyond the continuance of two lives in being at the creation of the estate. This shall not be done by any limitation or condition ; that is by any kind of assurance or conveyance; by any shift or contrivance whatever, by which estates may be created. In short, that it shall not be done at all.

Second. That the devise in question attempts to render the estate inalienable for twelve lives: 1. By conveying an estate to the trustees for twelve lives; the trustees being unable to convey without a violation of the trust. 2. By the creation of a future estate to commence in possession in two years after the death of the survivor of the twelve lives.

Third. That by the devise the estate is inalienable: 1. Because the statute prohibits trustees from conveying in violation of their trust; and 2. There are no persons in being who can convey the remainder. I take no notice here of the inalienability of the interests of the twelve nephews and nieces in the rents and profits, for if alienable, the estate itself would not be, and these interests are no part of the estate. From this view of the case, my conclusions are, 1. That the future estate or remainder was void in its creation, according to the 14th section: 2. That the precedent estate in the trustees was not necessarily void in its creation.

Although the testator attempted to render his estate inalienable longer than the law will permit, yet it is the duty of the court to carry into effect his intent, so far as is consistent with the rules of law ; in other words, so to construe the devise as to render the estate inalienable as long as the Jaw will permit: which is for two lives, and no longer. It follows, upon this view of the case, that at the expiration of the second life, the estate of the trustees would terminate, and the whole estate would vest in the heirs at law of the testator. This seems to me to *313 be a plain common sense view of the case, so far as concerns the principal devise, and ássuming that the devise itself is authorized by the statute for the term of two lives.

Other views have been presented; it is proper to pursue them. Before doing so, I will remark, that the revisers in presenting the provisions iii article second, on the creation and division of estates, expressed their confident belief that their adoption would extricate this branch of the law from the perplexity and obscurity in which it was before involved. They have certainly succeeding to a very great extent, if not entirely. And they have éffected this object as they have themselves remarked, principally by the new application of established rules, to all classes of expectant estates created by the act of the party. There are, however, some new principles; one I will point out, to which the revisers have not called the attention of the legislature. Formerly estates could not be rendered inalienable, but by means of contingent estates. They may now be rendered inalienable by means of a present estate—a trust estate, when the trust shall be expressed in the instrument creating the estate. Such an estate, by section 65, cannot be aliened by the trustees in contravention of the trust. Whoever, therefore, creates a trust estate to receive the rents and profits of land for any fixed period, renders the estate inalienable during the existence of the trust, or to the extent permitted by I law. If indeed the trust be to sell and convey, then it is' not inalienable.

If, however, the revisers have accomplished much in the creation and division of estates merely by a new application of old principles, they found in the old doctrines of uses and trusts, and powers, subjects which baffled their powers of modification. In their notes to these articles (No. 2 and 3) they remark in the language of Mr. Cruise, that “ the law of real property is the most extensive and abstruse branch of English jurisprudence,”—and in their own more eloquent language, they say: “ Such indeed are its extent and intricacy, that even in the legal profession it is very imperfectly understood by any who have not made it an object of peculiar study and attention; and so remote are its principles and maxims *314 from ordinary apprehension, that to the mass of the community seem to be shrouded in impenetrable mystery.” “ The law of powers,” say they, “ as all who have attempted to master it, will readily admit, is probably the most intricate labyrinth in all our jurisprudence. Few in the course of their studies have been called to enter it, who have not found it difficult to grope their way in its numerous and winding passages.” Instead, therefore, of endeavoring to unravel the mysteries of uses and trusts, or to cast light into the numerous dark and winding passages of the labyrinth of powers, they demolished the whole. The learned antiquarian will pause and ponder over this vast pile of ruins; venerable at least for their antiquity, the erection of which occupied centuries, and put in requisition the labors of kings, ecclesiastics and laymen. Upon these ruins have been erected new edifices— a new system of uses and trusts, apparently plain and intelligible, and adapted to the real wants of society; but whether it is so in reality is yet to be proved. Instead of the labyrinth of powers, we have a new building of modern architecture, through which I hope we may pass with safety, with such clue as the revisers have furnished.

Though the labyrinth of cross-remainders is left standing, I shall not enter it, believing that it does not stand in our way in pursuing the path of justice. I-will state my reasons for this belief; and for this purpose I shall assume, as has thus far been assumed, that the trust in controversy, to wit, a trust to receive and pay over, is one authorized by the Revised Statutes.

The revisers, in a learned note to article 2, have given a concise and accurate history of the rise and progress of the doctrine of uses and trusts, and have shown its defects. They say, “ There are three classes of trusts, each requiring to be noticed: I. When the trustee has only a naked and formal title, and the whole beneficial interest or right in equity to the possession and profits, is vested in those for whose benefit the trust is created ; 2. When the trustee is clothed with some actual power of disposition or management, which cannot be properly exercised without giving him the legal estate and actual possession; 3. Trusts arising or resulting by implica *315 tion of law." They proceed to state that the first class is not only useless, but they facilitate fraud, by separating the legal and equitable estates. The second class they propose to retain, only limiting their continuance and defining the purposes for which they may be created. The third class they retain in order to prevent fraud, prohibiting however a secret resulting trust from being created by the party claiming its benefit. In pursuance of this plan, in the 47th section they declare, that the person entitled to the possession of lands and the rents and profits, shall be deemed to have the legal estate. In section 49, they prohibit the creation of formal trusts, and declare that in such cases “ no estate or interest, legal or equitable, shall vest in the trustees.” In their note to this section they put this emphatic question : “ Why indeed should uses and trusts be continued for the mere purpose of converting them into legal estates as soon as they arise, unless it is thought desirable that conveyances should continue complex and obscure, and difficult questions of title be perpetuated ?

The only possible way in which cross-remainders can be introduced into this case, is by converting the interest of the twelve nephews and nieces in the proceeds of the rents and profits, into legal estates. Now I ask, if it was the intention of the revisers and the legislature to abolish all such fictions, not only as unbecoming the dignity of a due administration of justice, “ not merely as curious and overstrained, but as entirely useless, unless to propogate lawsuits,” why should this court seek to perpetuate “ that infinity of subtleties and refinements” with which this branch of our jurisprudence has been overloaded; and from which it was the expressed intention of the revisers and the legislature to relieve us? I know it may be said that these remarks were made in relation to formal trusts; but if active trusts are to be involved in the same intricacy and obscurity, and to be followed by similar consequences, are they not liable to the same objections ? In relation to trusts of this description, the revisers remark, note to section 56, as reported, now section 55, “ As the creation of trusts is always in a greater or less degree the source of inconvenience and expense, by embarrassing the title and requiring the frequent aid of a court of equity, it is desirable that express *316 trusts should be limited as far a possible, and the purposes for which they may be created strictly defined.” I shall hereafter have occasion to quote the remainder of this note. The section to, which they refer is as follows: “ Section 55. Express trusts may be created for any or either of the following purposes: I. To sell lands for the benefit of creditors; 2. To sell, mortgage or lease lands, for the benefit of legatees, or for the purpose of satisfying any charge thereon ; 3. To receive the rents and profits of lands, and apply them to the use of any person during the life of such person, or for any shorter term, subject to the rules prescribed in the first arti.cle of this title ; 4. To receive the rents and profits of lands, and to accumulate the same for the purposes and within the limits prescribed in the first article of this title.” “ Section 60. Every express trust, valid as such in its creation, except as herein otherwise provided, shall vest the whole estate in the trustees in law and equity, subject only to the execution of the trust. The persons for whose benefit the trust is created shall take no estate or interest in the lands, but may enforce the performance of the trust in equity.”

This is a modification of a species of trust mentioned by Mr. Cruise, 1 Cruise, tit. 12, Trust, ch. 1, § 12, 13, where a man made a feoffment in fee to his own use during his life and after his decease that J. N. should take the profits; this was a use in J. N.; contrary, if he said that after his death his feoffees should take the profit^ and deliver them to J. N.; this would be no use in J. N., because he could have them only by the hand of the feoffees. Thus the feoffees would have the legal estate, and consequently J. N. could only have a trust which would be enforced in equity. This rule has been applied to devises; but a distinction has been made between a devise to a person in trust to pay over the rents and profits to another, and a devise in trust, to permit some other person to receive the rents and profits. In the first case it was held that the legal estate should continue in the first devisee, in order that he might be able to perform the trust; for when he is directed to pay over the rents, he must necessarily receive them. But in the, second case it has been adjudged that the legal estate is vested by the statute in the person who is to re *317 ceive the repts. By the statute all, the right which the twelve nephews and nieces have, is a right to enforce the performance of the trust in equity. They have no estate or interest in the landp—nor have they any right to receive the rents except from the hands of the trustees. We must consider the trustees as distinct persons from those entitled to receive the proceeds of the rents and profits, in order clearly to understand the question. Suppose John Doe, the trustee, who is to receive and pay over the rents and profits to Richard Roe. Richard Roe would have no right to go to the tenants and receive the rents—he must receive them from John Doe, and from him alone. If J. D. refused to pay over what he had received, R. R. might file his bill in equity and compel him. Suppose now a greater number of persons entitled to receive ; all J. D. would have to do, would be to pay over to them their several proportions. Suppose that in the present case Jacob Lorillard alone was trustee, and the income $84,000 net proceeds. He would pay each of the twelve the sum of $7000. Suppose one of the twelve dies, the $84,000 must be divided equally between eleven, and each must receive $7,636 and a fraction; and so on as one drops away, the dividend is increased among the survivors. How does this differ from an annuity, except that the amount is contingent, depending on the amount of rents and profits 1 What has this to do with cross-remainders, with the doctrine of joints tenancy or tenancy in common 1 Who ever heard of either of them existing in a mere right of action—in other words, a chose in action 1 And how does this ideal theory of cross-remainders in the beneficiaries of the trust, consist with the intent of the revisers, “ To abolish all technical rules and distinctions having no relation to the essential nature of property, or the means of its beneficial enjoyment.” A simple question in arithmetic settles the rights of the parties better than the doctrine of cross-remainders.

But suppose l am wrong in this view of the subject; suppose there may be a joint tenancy or a tenancy in common with cross-remainders in “ a right to enforce the performance of a trust in equity:” how does that aid the perpetuity which *318 is attempted ? It is claimed that this is a trust under the third subdivision of the 55th section, to receive rents and profits and apply them, subject to the rules prescribed in the first article of this title. The first question which naturally arises is, what are the rules referred to ? What rules are there in the first article relating to the rents and profits of lands ? Rents and profits are the subject of the trust, and we must look for rules regulating that subject. Such rules we find in the 36, 37, 38 and 39th sections, and those are the only sections in the first article which speak of the rents and profits of lands. The 36th is as follows: “ Dispositions of the rents and profits of lands to accrue and be received, at any time subsequent to the execution of the instrument creating such disposition, shall be governed by the rules established in this article in relation to future estates in lands.” A reference to the devise in question, will show that it is precisely such a disposition. The three following sections relate to the accumulation of rents and profits for the benefit of minors during their minority. The 36th section turns us back upon the doctrine of future estates in lands. ■ We go back then to the I Oth section, which defines a future estate ; the 11th defines a remainder; the 12th defines a reversion ; the 13th explains when future estates are vested and when contingent; the 14th section is the first which may be said to contain a rule regulating future estates—it is as follows: “ Every future estate shall be void in its creation, which shall suspend the absolute power of alienation for a longer period than is prescribed in this article.” This period, by the next section, the 15th; is limited to two lives. .Thus then we have the rule, subject to which is the trust authorized by the third subdivision of the 55th section. When it is all put together it will read thus: “ Express trusts may be created to receive the rents and profits of lands, and apply them to the use of any person, during the life of such person, or for any shorter term ; such trust shall be void in its creation if it shall suspend the absolute power of alienation, for a longer period than during the continuance of not more than two lives in being at the creation of the trust.” It-will be seen at a glance, that to make sense of it, we must read the word person, in the plural persons, and that the trust must be to re *319 ceive and apply the rents and profits to the use of any persons during the lives of such persons. This is the species of trusts which" the revisers call active trusts, and in their notes they “ propose to retain them, only limiting their continuance, and defining the purposes for which they may be created.” It will be seen that the revisers have done both by the sections which I have brought together; and unless they are to be thus limited, there is no limitation to be found in the first article, or any other to which we have been referred. Suppose that this is the true solution of the enigma contained in the words “ subject to the rules prescribed in the first article of this titlethen it is clear, that if the execution of this trust will require the suspension of the power of alienation of the the lands, out of which the rents and profits are to accrue, for a longer period than two lives, the trust was void in its creation. I have already shown that the trustees cannot convey. § 65. The beneficiaries of the trust cannot convey. § 63. The absolute power of alienation is therefore suspended for a period of twelve lives, and that being a longer period than is allowed by the first article, the trust is void.

How can this consequence be avoided by the supposition of a tenancy in common in the interest, of the twelve nephews and nieces ? In order the more clearly to convey my ideas, I will separate the trustees from the persons benefit-ted by the trust. I will suppose John Doe and Richard Roe are the trustees who are to collect the rents and profits, and the twelve nephews and nieces are the persons who are to receive them. The estate of John Doe and Richard Roe is a joint tenancy, and not a tenancy in common. It is so expressly by the devise itself; it is so by the 44th section. They hold the legal and equitable estate, and that is a joint tenancy. It cannot be separated, unless by some other section such separation is permitted. We now suppose the interest of the twelve nephews and nieces to be a tenancy in common; that is, the rents and profits, when received by the trustees, (John Doe and Richard Roe,) are separated into twelve separate parcels, and marked from one to twelve. The nephews and nieces are numbered in the same way, and each person is entitled to his corresponding number of the parcels. It is argued that each *320 owns his own parcel not only, but that each has a cross-re-mainder in every other parcel except his own. It is further argued, that when No. 1 dies, his share is to be divided into eleven parts, one of which goes to each of the eleven survivors. That each one, therefore, is to enjoy his own twelfth for his own life, and only the eleventh of the part of No. 1 for another life ; and therefore, when No. 2 dies, the ten survivors divide his share into ten parts, and drop their eleventh of the share of No. I, because it is admitted that their estates can be enjoyed for two lives only. I ask now, what becomes of that part of the rents and profits which has dropped ? It cannot go to the heirs; the estate is still tied up in the hands of John Doe and Richard Roe. They go on upon this supposition, receiving the rents and profits until the whole twelve are dead. Is it not plain that the supposition of a tenancy in common does not relieve the case from its embarrassment l It is no answer to say, that by section 67, when the trust ceases, the estate in the trustees ceases; and that when one twelfth drops, oné twelfth of the estate in the trustees is at an end. The estate of the trustees is joint, and cannot be severed.

Besides, if we suppose a tenancy in common, there can be no remainders. The trust is for the life of each person, and that part of the devise which purports to give a remainder is void, not being authorized by the statute. The statute authorizes such a trust for the life of any person, or for a shorter term, not for a longer term ; but the negative is implied. The trust however is to pay to the survivor, and clearly intended to be joint and continue for twelve lives, and therefore void in its creation ; and by the 67th section, the trust being at an end, the estate in the trustees ceases. To speak more correctly as to this case: the trust attempted to be created being void, (he devise to the trustees is also void, and the estate belongs to the heirs at law.

II. Is this a trust under the 55th section 1 As to this section the revisers say, “ The object of the revisers in this section, is to allow the creation of express trusts in those cases, and in those cases only, where the purposes of the trust require that the legal estate should pass to the trustees. An *321 assignment for the benefit of creditors would, in most eases, be entirely defeated if the title were to remain in the debtor; and where the trust is to receive the rents and profits of lands, and to apply them to the education of a minor, the separate use of a married woman, or the support of a lunatic or spendthrift, (the general objects of trusts of this description,) the utility of vesting the title and possession in the trustees is sufficiently apparent. After much reflection, the revisers have not been able to satisfy themselves that there are any cases not enumerated in this section, in which, in order to secure the execution of the trust, it is necessary that the title or possession should vest in the trustees. Where no such necessity exists, (as when the trust is to convey, or to make partition, &c.,) it is obvious that without giving any estate to the trustees, the trust may as well be executed as a power; and that trusts of this kind may not be entirely defeated, it is provided in section 59, (now 58,) that they shall take effect in the manner suggested.”

In this note the revisers have told us what cases the 55th sect., sub. 3, was intended to provide for, to wit: minors, married women, lunatics and spendthrifts. As the 3d subdivision of this section was first drawn, it is very clear that this species of trust was intended for no other persons than those enumerated. It reads thus; “ To receive the rents and profits of lands, and to apply them to the education and support, or support only, of any person, &c.; and it was passed by substituting the words or either for the words support only. So it appears now in the Revised Statutes. During the session of 1830, an act was passed “ to amend certain provisions of the Revised Statutes, and in addition thereto.” This subdivision was then amended by striking out the words “ education and support, or either,” and by substituting the word “ use” in lieu thereof. The only reason given by the revisers was, that “ the word ‘ use’ includes education and support, and each of them. It will also include other purposes which ought to be provided for.” But it is not intimated that any other classes of persons are intended to be provided for, nor that a trust nearly approaching a mere formal trust, was to grow out of the word *322 “ use.” The trustees are to receive the rents and profits, and apply them, to the use. This surely does not mean to pay over to the person for whose benefit the trust was created. In that case he would apply them himself to his own use. Here the trustees are to judge of the propriety of the expenditure. A trust to receive rents and profits and to pay over was a trust known at common law, and was of course abolished with all other trusts; but the legislature, from the peculiar phraseology apply to the use of, seem to convey a different idea; and this view receives support from the report of the revisers. (Note to 56th section.) A trust to receive and pay over is very little if at all different in principle from a formal trust. The only difference is, that in one case the cestui que trust is entitled to the possession and profits ; in the other, to the profits only. One gives the cestui que trust the equitable estate in the possession; the other, in the profits only. According to Mr. Cruise, in one case the cestui que trust has the legal estate; in the other, the legal estate remains in the trustee, 1 Cruise, cited above. The equitable estate would be in the cestui que trust. Precisely the case disapproved of by the revisers in their note: “ They separate the legal and equitable estate for no purpose that the law ought to sanction. They answer no end whatever, but to facilitate fraud—to render titles more complicated, and to increase the business of the court of chancery,” and it may now be added, “to render estates inalienable.” Most assuredly, neither the revisers nor the legislature intended to effect any such object; their intention was to abolish all but active trusts, in which the trustee should have the whole title, the whole estate, legal and equitable, and the whole management of the estate ; in cases where there is a real necessity for the interference of a trustee, where the person for whose benefit the trust is created shall have no estate whatever, and only a right to enforce the trust in equity ; not as a contrivance to effect an object disapproved by the law—to prevent the absolute power of alienation of real estate. A trust to receive the rents and profits, and pay them over, gives the cestui que trust the equitable estate; but the statute permits no such trust. The persons to be benefitted shall have no estate or interest, but only a right to enforce the trust. If *323 the rents are to be paid over, why not give the estate directly ? Such is the spirit of the statute. It was not intended that any one should be his own trustee. As all trusts are abolished except those expressly authorized by the second article, section 45, and as no trust to receive rents and profits and pay them, over to another is authorized by that article, the trust in question is not authorized by the Revised Statutes; it is not a valid trust.

III. If the devise is not valid under the 55th section, is it valid as a power in trust ?

The counsel for the trustees, aware that the view of the case just presented might be taken by the court, suggested that if the devise is invalid as a trust, it is valid as a power, and refers to the 58th section, which is as follows: “ When an express trust shall be created for any purpose not enumerated in the preceding sections, no estate shall vest in the trustees; but the trust, if directing or authorizing the performance of any act which may be lawfully performed under a power, shall be valid as a power in trust, subject to the provisions in relation to such powers contained in the third article of this title.” The 59th section is in these words: “ In every case where the trust shall be valid as a power, the lands to which the trust relates shall remain in or descend to the persons otherwise entitled, subject to the execution of the trust as a power.” Our attention and inquiries must therefore be directed in a new channel. If no estate has vested in the trustees, then it would seem to follow, that if the property is inalienable, it is not imputable to the devise to the trustees. We must inquire, therefore, whether the acts which it directs may be lawfully performed under a power; if so, it is valid as a power of trust.

It is to be remarked, that the whole doctrine of powers, as it existed previous to 1830, is abolished, and a new system introduced. The old vocabulary is superseded by a new one. Instead of powers appendant and appurtenant, collateral and in gross, or simply collateral, we have now powers general or special, and beneficial or in trust. (§ 77.) Instead of donor or donee, we have grantor and grantee of a power. I will give the definition of each from the statute itself. And, first, *324 what is a power ? (§ 75.) A power is an authority to do some act in relation to lands, or the creation of estates therein, or of charges thereon, which the owner granting or reserving such power might himself lawfully perform. A power is general when it authorizes the alienation in fee, by means of a conveyance, will, or charge of the lands embraced in the power, to any alienee whatever. A power is special: I. When the persons or class of persons to whom the disposition of the land under the power is to be made, are designated. ' 2. Where the power authorizes the alienation, by means of a conveyance, will, or charge of a particular estate, or interest less than a fee.

A power, whether general or special, is beneficial where no person other than the grantee has by the terms of its creation any interest in its execution.

A general power is in trust, where any person or class of persons, other than the grantee of such power, is designated as entitled to the proceeds, or any portion of the proceeds, or other benefits, to result from the alienation of the lands according to the power.

A special power is in trust: 1. Where the disposition which it authorizes is limited to be made to any person or class of persons other than the grantee of such power; or, 2. Where any person or class, other than the grantee, is designated as entitled to any benefit from the disposition or charge, authorized by the power.

Every trust power is imperative, unless made expressly to depend on the will of the grantee. § 95 to 97 inclusive. Section 128 provides that the period during which the absolute right of alienation may be suspended by any instrument in execution of a power, shall be computed not from the date of such instrument, but from the time of the creation of the power. This last section shows clearly that the legislature did not intend that property should be rendered inalienable by means of a power, longer than by the act of the party creating the power ; and that the time should run from the creation of the power, not its execution. For instance, the owner of land grants or devises the same to A. for life, with power to him to devise the same in fee. It shall not be in the pow *325 er of A. to render the land inalienable for a longer time than the original owner could, calculating the commencement of the inalienability from the grant or devise to A.—in other words, the land may be inalienable for two lives only. The life of A. is one, and A., by the power, may render it inalienable for one other life, and no more.

A general power authorizes the inalienation in fee to any -one; a special power authorizes a like conveyance in fee to persons designated, or an estate less than a fee. The only question therefore, that can arise thus far, is whether the power to lease may not be embraced in these definitions. The powers last spoken of, however, are not powers in trust, and unless the devise in question is good as a power in trust, it must fail. It is not sufficient that it is within any other ■definition. I have already given the definition of a general power in trust. It is only applicable when the grantee of the power aliens the land, sells absolutely by virtue of an express power, and divides the proceeds, if more than one, or pays them over to one, if there are no more designated as entitled to them. It is essential also, that the person or class of persons entitled to the proceeds, or any portion of them, or other benefits to result from the alienation, shall be other than the grantee of such power. Here the grantee of the power, or grantees, (for it is immaterial whether singular or plural is used,) are the persons entitled to a portion of the proceeds. It is therefore not valid as a general power in trust. A special power in trust is, 1. Where the disposition which it authorizes is limited to be made to any person, or class of persons, other than the grantees of such power, that is, perhaps to lease, sell or mortgage to some persons designated by the grantor of the power, other than themselves ; or, 2. Where any person or class of persons, other than the grantee, is designated as entitled to any benefit from the disposition or charge authorized by the power. That is, as I understand it, the grantee of a special power in trust, may sell, lease or mortgage lands for the benefit of any designated person or class, other than himself, when he is expressly authorized to do so; but he has no authority to receive the rents and profits himself, and pay them over, or dispose of them in any way whatever, and for *326 the reason that he has but a bare authority. He has no interest in the lands which he has authority to sell or dispose of. Section 58 declares that, in all trusts not created under the 55th section, no estate shall vest in the trustees; and section 59 declares, that in such case the lands shall remain in or descend to the persons otherwise entitled, subject to the execution of the power.

To apply these remarks and propositions: If the devise in question is good as a power in trust, then the trustees take no interest under the devise; the lands descend to the heirs at law, and they are entitled to receive the rents and profits, until the grantees of the power choose, or are compelled to1 execute it. But the conclusive answer to the whole argument is, that the grantees of the power, if the trustees are to be considered such, are the very persons entitled by the devise to the proceeds, or part of the proceeds, or other benefits to result from the alienation or disposition which they, as grantees of the power, are to make; and in such case it is not a general power in trust, neither is it a special power in trust. It is not embraced in the first subdivision, because the leases which it authorizes are not limited to be made to any person or class, other than the trustees themselves. Nor is it embraced in the second subdivision, because the grantees, that is, the trustees, are designated as entitled to the benefits arising from the execution of the power. Nothing therefore can be more clear than that the power contained in this devise is not a power in trust at all, neither general nor special. Powers which would execute trusts like this would be subject to the same objections as formal trusts. “ They would answer no end but to facilitate fraud; to render titles more complicated, and to increase the business of the court of chancery,” as the revisers justly remarked concerning formal trusts.

I have thus gone through this whole case with some care ; although I cannot presume to say, that I am sure I am right, yet never has my mind come to a more satisfactory conclusion, founded, I flatter myself, upon the statutes, upon reason and common sense. If the other members of the court shall have come to the same conclusion, the whole trust estate in the trustees, so far at least as it operates in favor of the *327 twelve nephews and nieces, must fall before the supremacy of the laws. The owners of large landed estates will learn, that in this state, overgrown fortunes are not to be rendered perpetual; and this court will perceive that they are but carrying out the principles upon which our system of laws relating to real estate is founded. “ It is not surprising,” say the revisers, “ that powers should be favored in England; for the continuance of the landed property of the kingdom in the hands of its aristocracy, is the basis upon which the monarchy itself may be said to rest; but with us it should never be forgotten that it is the partibility, the frequent division and unchecked alienation of property, that are essential to the health and vigor of our republican institutions.” Never was there a sounder sentiment uttered,, nor in more appropriate terms. The partibility of real estate, the absolute power of alienation, is the basis upon which republican institutions must rest in this country not only, but throughout the world.

Before I leave this subject, I must be indulged in a single remark in relation to the revisers’ reports. I have quoted freely from them, because they are the fountain head of information as to the intention of the legislature. It is only by taking a view of the whole system, that we can judge correctly of any of its parts. In those reports we have an expose of the old system, its defects pointed out, and the remedies proposed. It is by keeping these objects constantly in view, that we can most effectually carry into operation the intentions of the legislature.

I will now recapitulate the points upon which I rest my opinion.

I. Assuming that the trust in favor of the twelve nephews and nieces is authorized at all, for any time, by the 3d subdivision of the 55th section, I have endeavored to show that the estate is rendered inalienable by the devise to the trustees, which by the devise itself necessarily continues during the continuance of twelve lives.

I have endeavored to show that the absolute power of alienation is also suspended by the creation of the remainder in favor of the grand nephews and nieces, to be vested in possession two years after the death of the survivor of the nephews, *328 and nieces; and that this remainder was void in its creation. That the estate in the trustees, if authorized by law was not void; but that it would in that case be the duty of the court, so to construe it as to sustain the trust during the continuance of the lives of two of the twelve nephews and nieces—that the right of the twelve nephews and nieces, to enforce the trust in chancery, ought not to be likened to a legal or equitable estate ; that their interest is inalienable ; but if otherwise, the estate itself would not be alienable—that the idea of cross-remainders in the right which the twelve nephews; and nieces have to enforce the trust in equity has no real existence, but is entirely fanciful; but if real, the devise to the trustees being expressly an estate in joint tenancy, cannot be construed a separate devise, or rather twelve separate devises, being one in favor of each of the twelve beneficiaries of the trust—and that if the interest of the twelve nephews and nieces is to be assimilated to an estate in lands, it must be subject to the restrictions upon future estates ; and having the effect to suspend the alienation of the estate for a longer period than is allowed by law, it was void in its creation, and consequently that the trust being at an end, the trust estate itself is at an end.

2. Under my second general head, I have examined the 55th section and the intent of the legislature in the 3d subdivision, and have endeavored to show that the words apply to the use of do not mean to pay over, and consequently that the object of the trust in the devise in question is not sanctioned by the Revised Statutes, but is such as the law cannot approve ;. and that the trusts authorized by that subdivision are-intended to be active trusts, in which the agency of a trustee is indispensable for the purposes of the trusts; not to. constitute a person his own trustee, nor to effect a purpose-disapproved by the law, to render real estate inalienable.

3. Under my third head, I have endeavored to show that the trust attempted .to be created by the devise in question cannot be sustained as a power in trust: I. Not as a general power in trust, because such a power contemplates an absolute sale and division of the proceeds, and because such a power cannot be executed by the grantee thereof for his own *329 benefit; 2. Nor as a special power in trust % first, not under the first subdivision, because it does not authorize a disposition, limited to be made to any person or class of persons other than the grantees of the power; and second, nor under the second subdivision, because the grantees of the power are designated as entitled to the benefit to arise from the disposition. In short, that no trust is valid as a power in trust, if to be executed by the grantee for his own benefit. It is then beneficial.

In any view of the subject which I have been able to take, I cannot avoid the conclusion that the devise, in so far as it conveys a trust estate for the benefit, and to continue during the lives of the twelve nephews and nieces, is entirely void, and that the estate vests in the heirs at law.

The validity of the legacies and annuities was not argued ; but if my premises are correct, the annuities must also fall, as depending upon the same principles with the rights of the twelve nephews and nieces. They depend upon the trust for'the lives of the twelve nephews and nieces, and render the estate inalienable; and resting upon the same rules as future estates in land, are void in their creation. The legacies to the Theological Seminary and to St. Philip’s Church are good, as clearly authorized by the 2d subdivision of the 55th section. I state these conclusions as to the legacies and annuities as corollaries from the principles above supposed to be correct, and not as being any part of the present adjudication.

My opinion is, that the decree of his honor, the Chancellor, be reversed.

By Mr. Justice Nelson.

The first question to be considered and decided is, whether the trusts raised by the first and second clauses in the will, for the benefit of the twelve nephews and nieces, come within any of the provisions of the second article of the Revised Statutes regulating these interests. If they do not, then it follows they are void, unless they can be preserved and executed under the next article as a power.

The 45th section expressly abolishes all uses and trusts, except as authorized and modified in that article ; and it is declared that every estate and interest in lands shall be deem *330 ed a legal right, cognizable as such in courts of law, except when otherwise provided in the chapter. We must therefore look to the provisions of this article alone, when searching for authority, express or implied, to create this trust.

The 55th section authorizes the creation of express trusts for four specified purposes. The 3d subdivision, to receive the rents and profits of lands and apply them to the use of any person, during the life of such person or for any shorter period, subject to the rules prescribed in the first article. This is the only section or clause within which it is pretended the trust can be brought or supported as such. The clause was originally reported to the legislature as follows: “ and apply them (rents and profits) to the education and support, or support only,” of any person, &c. It was amended by striking out “ support only” and inserting “ either,” so that it read, as passed and took effect 1st January, 1830, “ and apply them to the education and support, or either,” of any person. In about three months after the section went into operation, it was amended again by striking out the words “ education and support, or either,” and substituting simply the word “ use,” giving obviously much greater scope to the power in creating the trust; the legislature deemed it, no doubt, too much restricted as it was originally passed. It should be borne in mind, that while this clause, permitting by far the most important trust in the article, underwent very material modifications, the other sections remained as originally reported ; and it will then be perceived that some, if not most of the apparent incongruities and difficulties in the practical operation of the article as a system, are to be traced to this circumstance. As the clause was originally reported and passed, the object of it was to permit the creation of trusts to receive rents and profits, and apply them to the education and support of persons not qualified from age, condition, or some infirmity, to take charge of the fund themselves. This is sufficiently clear from the qualified language used; and the propriety and even absolute necessity of allowing the creation of such a trust was too obvious to have escaped either the revisers or the legislature. It was recommended and defended upon the above ground.

*331 The 60th and 63d sections are intelligible and appropriate in connexion with the 55th as thus understood. They were enacted more effectually to carry out the purposes of the third clause. By the 60th, every express trust, valid in its creation, except as otherwise provided, shall vest the whole estate in the trustees in law and equity, and the persons for whose benefit the trust is created, shall take no estate or interest in the lands, but may enforce it in equity. This positive and negative exclusion of any legal or equitable interest, or any interest whatever in the land, would seem to be sufficient to preclude alienation by cestuis que trust; which no doubt was the object of the section. But for abundant caution the 63d was also adopted. It provides that no person beneficially interested in a trust for the receipt of the rents and profits of land, can assign or in any manner dispose of such interest. The 65th section makes every sale, conveyance, or other act of the trustee in contravention of the trust, absolutely void. Now, taking all these provisions together, as a system, and they skilfully accomplish the purposes intended; the different provisions harmonize, and the fund is effectually secured from dissipation, by the inexperience, improvidence, or weakness of the beneficial owner on the one hand, and from, perhaps, less excusable infirmities of the trustee on the other. We discover the reason and value of each provision, and can cheerfully give to them full scope, and practical operation. When the restriction of the trust to the two objects, education and support, was removed, and a general one was authorized, the effect, 1 think, of the amendment of 1830, the good sense, and direct use of the 60th and 63d sections, are not so obviously apparent.

When the office of the trustee may be confined, as in this case, simply to collect the rents and profits, and pay them over, without the exercise of any discretion in their application, all the provisions to prevent the beneficial owner from disposing of his interest, do not seem to be so material; and yet they may be. A prudent father or benefactor may consistently confide to his son, or other object of his bounty, the absolute control of the annual rents and profits, and withhold from him the disposition of the estate. At first I entertained doubts *332 whether this trust came within the terms and meaning of the 55th section, but upon further consideration, I am inclined to think it does. The mode of applying the rents and profits, as well as the amount of them, as the section now . stands, is not limited or made material, and rests in the discretion of the person creating the trust. Even under the restricted clause, he might, I think, have directed as has been done here, the rents and profits to any amount specified, to be paid over at fixed periods, for the education and support, or either, of any person—leaving the application of them to himself. There was nothing in the clause necessarily preventing this. The legislature, I think, could not have meant that a parent should be compelled, in creating a trust for the education or support of his son, to place him at the mercy of an undefined discretion in the trustee ; and thereby exclude the exercise of all discretion on the part of the parent. The reverse would seem to be the more reasonable construction of the clause. The legislature meant that the person creating the trust might exercise the discretion, if he pleased, and regulate the administration of the trust.

The difficulty in the clause in its original enactment, consisted in restricting the power to create the trust to the two specified objects, and which necessarily excluded by implication, any discretion over the trust fund beyond them. The whole of the rents and profits might not be exhausted in education and support. What was to be done with the excess ? Striking out the limitation left the object undefined. This enlargement, however, of the trust, has not altered the effect •or bearing of the 60th and 63d sections. They are still as applicable and controlling, as regards the interest of the beneficial owner, as before. Indeed, his condition and the nature of his interest are in no way changed. He may now exact from the trustee in equity, the amount of the rents and profits, directed to be applied to his use, be they more or less, as he before could those directed to be given to him for his education and support. But the principal trust fund, in the hands of the trustee, is beyond his reach.

It was said on the argument, that the 63d section was intended as a restriction upon the person, and not upon the estate, and that as the devisor in this case authorized the cestuis *333 que trust to alien, the prohibition is removed. I shall not stop to inquire whether such authority is or is not given in the will, as I am satisfied the disability is annexed to the fund. It must be remembered that no trusts now exist in this state out of this second article, except those created before it became a law. They are now the creature of the statute; and to be sustained by the court, must not only be in conformity to the provisions authorizing their creation, but subject to the restrictions the statute has imposed. The legislature must have deemed ail of them essential to constitute a perfect system. When we recur, also, to the original object of the section, and the nature of the trust as it then existed, and as has been briefly stated, we are confirmed in this construction. No trusts were intended to be authorized under this third clause, except in cases where the prohibition against assignment of the principal fund was deemed necessary. It was to allow a trust to be raised in cases where the beneficiary was incapable of judiciously managing the fund himself. Another consideration also is decisive to my mind. If the person creating the trust may at discretion lodge a power in the trust instrument, and thereby enable the beneficial owner to control and dispose of the trust term, or principal fund, then we have, to all intents and purposes, a revival of trust estates, as they before existed in this state. The case would fall within the very definition of a formal trust, which is defined to be a right in equity to take the rents and profits of lands, whereof the legal estate is vested in some other person; and to compel the person thus seized of the legal estate, who is called the trustee, to execute such conveyances of the land as the beneficial owner shall direct. Assuming that the beneficial owner within the trust under the 55th section possessed the power to assign his interest, a court of equity would be obliged to compel the trustee to convey to the purchaser the legal title; otherwise the power of sale would be nugatory. The legal estate might be in one person, and the equitable, with the power of controlling the legal, in another, under the statute, and all the attendant evils so frequently lamented, and which were believed to have been removed, growing out of the separation of the two estates, would remain to an indefinite extent. One great object of *334 the article on uses and trusts was to cut up the separation of the legal and equitable title where no valuable purpose was effected by retaining it. •>

In this case, if the nephews and nieces can dispose of the trust term, of what use could it be to any one to put the legal estate into the hands of the trustees 1 Why not devise it to them at once, without the useless machinery of passing it through the hands of trustees to purchasers ? It is true the assent of a majority required in the will is some check $ but if a trust can be thus raised with a qualified, it may be with an absolute power of assignment. By applying strictly the 60th section to the trusts under the 55th, and thereby preventing any assignment of them by the beneficial.owner, we shall go far in confining the creation of them to the real objects for which they were originally designed, and at the same time accomplish all that the necessity of society or convenience can require. It is surely ho hardship if we compel a man, to give to a son, or other object of his bounty, an estate directly, of which he is willing to give him the absolute disposal through the instrumentality of a trustee.

Believing the trust to be expressly authorized within the provisions of the second article, I am brought to the consideration of the only difficult question, upon my view of the case, and that is, whether or not this trust term violates the provisions of the fíe vised Statutes, designed to prevent the creation of perpetuities ? That it would be unexceptionable in this respect, according to the rule of the common law, is not doubted ; but the statute has materially modified that rule. It allowed property to be tied up; that is, the power of alienation to be suspended, for any number of lives in being at the creation of the estate, (which is at the death of the testator in case of a will,) and the period of minority, and gestation. This enabled any person to keep his estate in his, family during the period of the longest liver of the persoils whose lives he selected, and twenty-one years and nine months. I did not understand the position taken, and I think satisfactorily maintained by the chancellor in his opinion, now to be seriously disputed, that under the 15th section, the absolute power of alienation could not be suspended beyond two lives in being *335 at the creation of the estate; and that this prohibition applied to both present and future estates. The 16th section makes a single exception, which it is not material to notice. The 14th defines what is meant by the suspension of this power; it is suspended “ when there are no persons in being by whom an absolute fee in possession can be conveyed.” Has then the power of alienation been suspended beyond two lives in being at the creation of this trust term by the testator, upon a proper and legal construction of the language of the will ?

In order understandingly to answer the question, we must inquire into the nature of the estate or interest devised. On the part of those who maintain the validity of the will, it is contended it is in the nature of a tenancy in common with cross-remainders, that is,that each holds an undivided twelfth part of the rents and profits for life, with cross-remainders, that give to each survivor a portion in the share of the deceased co-tenant. Those contending against the validity of the will, maintain that the estate is in the nature of a joint tenancy, a distinguishing incident of which is, the estate being an entirety, but one in law, on the death of a joint tenant the survivors or survivor still enjoy the whole. It will be seen that the practical operation upon the nephews and nieces in either view of the nature of the estate devised, is the same, the interest of any one dying goes over to the survivors. It is contended, however, that the mode of arriving at the result is very material in regard to the validity of the trust. The testator devised all his estate, both real and personal, to his executors and trustees, and the survivors of them, their heirs and assigns forever, as joint tenants, and not as tenants in common, in trust for the purposes afterwards declared. There were thirteen of them, the twelve nephews and nieces and the brother of the testator. Superadded to this express grant is the positive enactment of law, contained in the 60th section before referred to, and “ shall vest the whole estate in the trustees in law and equity, subject to the execution of the trust,” and the negative provision that the nephews and nieces “ shall take no estate or interest in the lands, but may enforce the performance of the trust in equity.” Upon a strict and literal construction of this section, it is obvious the nephews and nieces *336 have but a chose or right in action. The expression, “ no estate or interest in the lands” would seem entirely to exclude it when the interests of the cestuis que trust are the subject of consideration. That is not, however, in my view, the just and sound construction of the section, when we are engaged in ascertaining the interest or estate of the nephews- and nieces, to the enjoyment of which they are entitled: The language was used in the section, when the legislature were seeking to interpose obstacles against disposition and assignment by the beneficial owners, and should be construed with reference to the object of the provision, secundum subjectam materiam. By the 55th section, the express-trust allowed by the third subdivision, is made subject to the rules prescribed in the first article. That article is devoted-to the creation and division of legal estates, and it seems necessarily to follow, that the rules there prescribed concerning these estates,- so far as they can be consistently applied, are to govern the interest, or trust, or whatever other name the right may be called, that belongs to the nephews and nieces, under the second article.

It may be observed that the application of rules concerning legal estates to trusts, in a court of equity, is not original in-the statutes. The beneficial owners, soon after the statute of uses were, and ever since have been, regarded in that court as-the legal owners, and the trust regulated in the same manner-as a legal estate. We have the authority of Lord Mansfield, that the cestui que trust is actually and absolutely seized of the-freehold in the consideration of that court; that the trust is-there the land, and that the declaration of the trust is the disposition of the land. Cruise, tit. 12, ch. 2, § 1 to 6 inc.. Assuming, then, that in determining the- nature of the interest-of twelve, that is, whether it must be deemed & joint tenancy or tenancy in common, we are to be governed by the rules applicable to legal estates, it becomes necessary to look at some of the principles and authorities concerning-them.

At common law, an estate in joint tenancy, says Sir W. Blackstone, is where lands or tenements are granted to two or more persons to hold in fee simple, fee tail, for life, for years or at will. In consequence of such grants, an estate is called an estate in joint tenancy, which signifies an union, or conjunc *337 tion of interest. Each joint tenant has the entire possession of every parcel and of the whole; and this union and entirety of interest and possession has given rise to the principal incident to the estate, which is the right of survivorship. The interest being not only equal or similar, but also one and the same, on the death of his companion, the sole interest in the whole remains to the survivor. 2 Black. Com. 182 to 187, 1 Co. Litt. 840, 845. 2 Cruise, 503, 4. Tenants in common are such as hold by several and distinct titles, but by unity of possession, because none knows his own severally, and therefore they all occupy promiscuously. Lord Coke draws the true distinction between these estates, in his commentaries on Littleton. The essential difference, he says, between joint tenants and tenants in common is, that joint tenants have the land by one joint title, and in one right; and tenants in common by several titles, or by one title and several rights; which is the reason joint tenants have one joint freehold, and tenants in common have several freeholds. 1 Co. Litt. 875, In the more brief language of Mr. Preston, joint tenants have one estate in the whole and no estate in any particular part. Tenants in common have several and distinct estates in their respective parts. Preston on Estates, 137.

Before we refer to some authorities on this branch of the case, we will recur to the material words of the will: “I direct my executors and trustees to pay over and divide (the rents and profits) to and among my nephews and nieces, (naming the twelve) during their natural lives, and to the survivors and survivor of them, equally to be divided between them, or such of them as shall from time to time be living, share and share alike.” The case of Fisher v. Wigg, 1 Ld. Raym. 622, the words were—and after her decease (his wife) “ to the use of B., C., D., E. and F., his children, equally to be divided among them, and their respective heirs and assigns forever.” The question was, whether the children took as joint tenants, or tenants in common. The case was elaborately examined by the judges; Turton and Gould maintaining it was a tenancy in common—Ch. J. Holt, that it was an estate in joint tenancy. He conceded the position to his brethren, if these words had been in a will. *338 In Rigden v. Vallier, 2 Vez. sen. 252, the words were, “ my said two daughters, M. and H„ to have the said last mentioned lands, to them and their heirs forever, equally to be divided between them.” Lord Ch. Hardwicke said, this question depends on.a very litigated and disputed point in the books. He considered the words “ equally,” or “ share and share alike,” when found in a will, as creating a tenancy in common. He said the courts had leaned against survivorship, and therefore had created a tenancy in common, by construction, on the intent of the parlies.

In Hawes v. Hawes, 2 Ves. sen. 13, the words were “ to his three children and their heirs when he, she and they attained the age of twenty-one or married, equally to be divided between them, share and share alike as tenants in common, and not as joint tenants, with benefit of survivor-ship.” The will then directed the rents and profits to be for their maintenance and education during their minority ; one of the three children died under age, and the question was, whether his share went to the survivor. The lord chancellor said, that joint tenancies were not favored, because they were inconvenient estates, and made no provision for famillies in consequence of the incident of survivorship. The only difficulty in this case arosé from the words, with benefit of survivorship, that followed those indicating a severance of the interest. He gave effect to them, however, by holding that the share of the deceased child should go to the survivors, and not to the heir at law, deciding that there was a joint tenancy in the rents and profits during the minority.

In the case of Clerk v. Clerk, 2 Vernon, 323, the words were, “ that his sisters, T. and A., might live in the capital house, and equally divide the rents and profits of the four farms betwixt them, and the whole to the'survivor of them.” It was resolved that this was a joint estate, and not a tenancy in common ; for although the words equally to be divided betwixt them, in a will, made a tenancy in. common by way of construction on the intent of the testator, yet if afterwards it is declared it should go to the survivors, that would oust such construction, and it would be a joint estate.

*339 In Baker v. Giles, 2 P. Wms. 280, the words were, “ to the use of the testator’s two nephews, and the survivor of them, and their heirs, equally to be divided between them, share and share alike.” Lord Ch. King, after referring to the rule that in the construction of wills every word should have effect, if poss.ble, said, the first part of the devise being to two and the survivor of them, made them plainly joint tenants for life; and he so decided; under the other words the heirs, look a tenancy in common in the inheritance.

In Rose v. Hill, 3 Burr. 1381, the words were, “ to his five children, and the survivors and survivor of them, and the executors and administrators of the survivor of such survivors, share and share alike, as tenants in common, and not as joint tenants.” Lord Mansfield said, “an estate to more than one, with a benefit of survivorship, was a joint tenancy.” But he put the case upon the express words, that the estate should be held as a tenancy in common.

In Armstrong v. Eldredge, 3 Br. Ch. 215, the words were, “ in trust to pay the interest and profits thereof to his four grand daughters, equally between them, share and share alike, for and during their respecting natural lives, and after the decease of the survivor of them, in trust, to pay the principal money to and among the children of his said grand daughters, equally to bo divided between them, share and share alike.” Two of the grand daughters died, leaving children. It was decided the two living grand daughters took the whole interest by survivorship; for notwithstanding the words, equally to be divided, share and share alike, the context shewed that a joint tenancy was intended, as the interest was to be divided among four, whilst they were alive *, three, whilst they were alive ; and nothing was to go to the children whilst the mothers were living.

In Blissel v. Cranwell, 1 Salk. 226, the words were, “I give to my two sons, and their heirs, and the longest liver of them, equally to be divided between them arid their heirs” This was decided to be a tenancy in common, according to the intent of the testator; it being manifest he meant to provide not only for his two sons, but for their posterity ; that not only his *340 sons, but their heirs should have an equal part, the words being, “ equally to be divided between them and their heirs. ’

In Russel v. Long, 7 Ves. 551, the words were, “ to pay, apply and dispose of the whole sum, principal and interest, unto his three sisters, and the survivors and survivor of them, during their natural lives, share and share alike ; or permit his said sisters, and the survivors and survivor of them, to receive and take the same in equal parts, shares and proportions, to and for their and her separate use and benefit, the survivors and survivor, or their and her heirs forever.” One of the sisters died before a distribution of the property, which was personal estate. The master of the rolls declared it to be in the nature of a tenancy in common.

We might refer to numerous other cases upon this “ litigated and disputed point in the books,” as determined by Lord Hardwicke, but they would shed no additional light upon the question. It is clear, that where the words “ equally to be divided,” “ share and share alike,” “to and among,” and others of like import, stand alone in a will, they indicate a severance of the estate devised, and establish a tenancy in common. In connexion with a peculiar phraseology of the will, they may also so strongly indicate an intention of a severance of the estate, as to compel the court to reject the term survivor, or other repugnant expressions ; as in the case of Blissel v. Cranwell, and Russel v. Long. In the former case the devise clearly shews that the testator intended to provide for the heirs of the two sons, which was repugnant to the idea of a survivorship, and joint tenancy. In the latter, the estate being personal, and the principal and interest directed to be paid to the three sisters in equal parts, shares and proportions, for their separate use, and their heirs, afforded very conclusive ground against the claim of survivorship. It is equally clear and well settled, that if the testator intended to give the estate to the survivors or survivor of the devisees named, the idea of a severance is excluded, and they take an estate in joint tenancy, as was declared in the cases of Clerk v. Clerk, Baker v. Giles, and Armstrong v. Eldredge, even against' words of a contrary import. There is perhaps no general or useful rule to be extracted from the cases. The intent of the testator being *341 the cardinal object, and that to be derived from the language of the will, giving to every word its reasonable weight, the reasoning of the court, and the decision must necessarily depend more or less upon the circumstances and language of the particular case. Another observation may also be made upon the numerous cases that, one difficulty common to them all, was to ascertain whether survivorship was within the intent of the testator, and the leaning of the court being against it because it cut off the heirs, and did not provide for posterity, a construction was sought after, that would create a severance of the estate. But where the intent of survivorship was plain, no such reason existed, and other apparently repugnant words were made to yield.

In this case the language of the testator is so explicit that no question can be raised as to the intent of survivorship. The estate must remain in the survivors till the whole vest in the last, before it goes over, and after his death, is then distributed among the descendants. The postponement of the severance and distribution till that probably remote event, was a primary object, obviously the most prominent in the mind of the testator. The scheme as well as the language of the will, favors the conclusion that it was the design of the testator to keep the estate together; and that it should be held in the nature of a joint tenancy. The whole fund is placed in the hands of the nephews and nieces, with one exception, to be jointly managed during the trust term.' They are the persons who are entitled to the enjoyment of the income that arises out of the joint estate, and the expenses and disbursements are to be first deducted, and annuities paid before any distribution is to be made. No such division among themselves is contemplated till then. It is the “ residue” of the rents and profits that is to be paid among them, the survivors and survivor. The words “equally to be divided,” “ share and share alike,” have no application or effect, from the express terms of the will, till the income is supposed to be collected, and the annual charges upon it satisfied. A provision that the share of each should bear an equal proportion of these charges, would have been a natural one, if the idea of a several estate had existed in the mind of the testator. A distribution of this *342 “ rest and residue” of the rents and profits, is not necessarj]y a severance of the beneficial interest in the trust term. The latter must be regarded, when we are endeavoring to ascertain the nature of the estate devised. I freely concede, that if the words directing a division of the annual income stood alone, they might justify the construction of an intent to sever the estate, as courts lean against survivor-ship. But other words precede and follow them, expressly providing for this incident to a joint tenancy. The rents and profits are to be paid to the 12, and to the survivors and survivor of them, language, which upon all the cases, so far as I know, was never doubted, create this estate. Equally to be divided between them, or such of them as shall from time to time be living, share and share alike, again in terms provide for the survivorship ; that is, the income is to • be paid to those happening to be alive at the time. As was said in Armstrong v. Eldredge, the context shews a joint tenancy was intended, as the interest was to be divided among 12 while 12 were living, 11 while 11 were living, 10 while 10 were living, and so on, excluding necessarily the idea of any permanent severance of the estate between the 12, 11, 10, or any other number. Other parts of the will also confirm this view. The testator directs the real estate out of the city of New-York, and all his personal estate, to be converted into real property in the city; thus turning the whole into real estate, and concentrating it at one place, to be held jointly by the trustees.' After tying it up in the hands of the nephews and nieces, till the death of the last survivor, he makes provision for its distribution ; directs particularly the mode. In order, he says, to a fair and just division and distribution of my estate, I do direct, &c. And such division and distribution shall not take place until two years, &c. My executors shall cause a fair and equitable distribution, reasonably implying a supposed previous joint and undivided estate. I may add that in arriving at the conclusion that the estate is one of joint tenancy, wo give effect to all the words in the will, to the explicit language of survivorship, a leading intent of the provision; and to the other words, by referring them to the distribution of the *343 balance of the income, when paid over to the nephews and nieces, and the survivors, after deducting all charges upon it.

I have come to this conclusion without overlooking the 44th section of the first article, and intend to admit its application as one of the rules concerning legal estates referred to, and to be regarded when determining the nature of the estate in the trust. By that section, every estate granted or devised to two or more persons in their own right, shall be a tenancy in common, unless expressly declared to be in joint tenancy. Now if my construction given to the language of the will be correct, according to the intent of the testator, a joint tenancy has been expressly declared. The words joint tenancy need not be used in order to create the estate; any other expression clearly importing such an intent must be sufficient. The statute did not mean to establish a mere verbal distinction. Before its enactment, as has already appeared, a grant or devise to two or more, without any other words, created a joint tenancy. It has reversed the rule by declaring the estate shall be a tenancy in common. This is the whole amount of the provision. If there be other words in the instrument, which, upon a legal construction, necessarily create an estate in joint tenancy, the statutory inference is rebutted. A joint estate is then expressly declared by the grantor or devisor, within this section.

But it is said there is another mode of carrying into effect the intent of the testator as to survivorship, compatible with the idea of a severance of the estate between the twelve, i. e. by a tenancy in common, with cross remainders. It will be necessary, therefore, to examine briefly this doctrine. Until the case of Perry v. White, decided 1778, Cooper, 777, the law was understood to be, that cross remainders could not be raised by implication between more than two persons ; and it had been frequently so decided. In that case Lord Mansfield hold, that wherever cross remainders are to be raised by implication between two and no more, the presumption is in favor of cross remainders ; - where they are to be raised between more than two, there the presumption is against them. But that presumption may be answered by circumstances of plain and manifest intention either way. This, he said, was a qualifi *344 cation of the rule laid down in former cases, for they seem to say that there shall not be cross remainders between more than two. It was said, on the argument, that they are expressly given in this will; or if not, the presumption against them is rebutted by that part of it directing, survivorship. But this is assuming the whole point in dispute. If the estate is in joint tenancy, then no cross remainders need be implied to carry it on to the survivors, and surely there are none in express terms.

I have examined many cases in the books involving a consideration' of this complicated doctrine, and will not say that none can be found, but none were cited, nor have any come within my researches, where the devisees took an estate, as a class, to them and the survivors and survivor, in terms cutting off the heirs till the death of the last survivor, in which cross remainders were implied, to fulfil the intent of the will. There are many cases to be found, some of which have already been referred to, where this has been done, by considering the devisees as holding in joint tenancy. This answers all the purposes intended.

Where an estate is given to two or more, and their heirs, and the survivor of them, and in default of such heirs then over, cross remainders are necessarily implied, to carry out the intent of the will. As the estate was not to go over till all the descendants of the devisees became extinct, in order to carry it on, throughout perhaps numerous branches of the families in the line of descent, before their blood became extinct, this complex doctrine was devised. Phipard v. Mansfield, Cowp. 797. Alberton v. Pie, 4 T. R. 710. Watson v. Fox, 2 East, 36. Roe v. Clayton, 6 East, 628. 1 Saund. 180, n. 6. It will undoubtedly perform that office, however multiplied the descendants or the branches, as cross remainders may now be raised between any number ; but it is apparent the application of the rule in the case of a long line of descent and numerous progeny, must be appalling, and may be out of the reach of human capacity. The power of mathematics would fail to trace or comprehend the practical operation or result..

*345 It is not surprising, then, that courts at first were deterred from extending them further than between two persons and their descendants ; and that the presumption of law exists still against them beyond that number. In Claches' case, Dyer, 330, the court say that no implication of any cross-remainder could be raised, when an express and special gift and limitation are made by the devisor himself. The same principle was applied in the recent case of Wooler v. Andrews, 2 Bingh. 126. The devise there was in trust, to per* mit six children to receive one sixth part each, in the rents and profits during their natural lives, and after decease, to their issue. And further, that in case any or either of his said six children should die without leaving any lawful issue, then llis or her share to go to the survivors or survivor. All died but the defendant, and one only left issue, a son, the plaintiff. He claimed a moiety of the rents with his uncle, on the ground that the surviving children of the testator took the shares of those dying without issue, by cross-remainders ; and it was contended the heirs of a deceased child would take the same share as their parent would have taken if living. This was conceded to be the effect, if cross-remainders were allowed. But Chief Justice Best said, though the court will imply cross-remainders, where there appears to have been an intention on the part of the testator that the property should be so disposed of, we cannot im* ply them here, because the testator expressly gives the property to the survivors or survivor, that is, to the survivors for life, and afterwards to the last survivor; that the accruing shares passed on to the defendant, as survivor. He repudiated the idea of raising cross-remainders between the six children, for the purpose of giving the shares falling in to the issue of a deceased one, as well as to the survivors, and put the case upon the ground that the rents and profits were held in this respect in the nature of a joint tenancy, from the express language that the share of a deceased child without issue should go to the surviving brothers and sisters.

Without pursuing this branch of the examination further, it appears well settled that cross-remainders are never raised by implication, unless upon the plain and manifest intent of *346 the testator, nor when a different mode of directing or vesting the estate has been expressly declared by him. They are never implied in a deed. From an attentive examination of the several provisions of the will, (and the language is not ambiguous,) we cannot say the testator intended to raise cross-remainders in this case. They are not necessary to accomplish any general or particular purpose he had in view. The persons who were to enjoy the rents and profits are all designated, and it is declared, in the most explicit terms, how they are to be received. After deducting charges and annuities, the trustees are to pay them to the twelve, and the survivors or survivor in equal proportions. There is no permanent severance of their interest, nor can there be, consistent with the language used, because there is no fixed division among any number; and it is only upon the idea of a several estate that cross-remainders can be necessary. The income is to be paid directly to those living at the time, to 12, 11, 10, as the number may happen to be. How can it be said that cross-remainders are plainly and manifestly implied, or that they are necessary to carry a share falling in, over to the survivor, when every thing is expressed. The court say, in Claches’ case, no implication of any cross-remainder could be raised, when an express and special gift and limitation are made by the testator himself. Nothing can be more express and specific than the limitation in this case. All presumption is excluded. Every intent of the testator and the mode of carrying it into effect is declared.

If I could have arrived at the conclusion that the testator intended to sever the interest of the nephews and nieces, and thereby create a tenancy in common, giving to each an estate in severalty for life, it is possible that under the rule of approximation in the construction of wills, the validity of the trust term for the life estates might be maintained. I must confess, however, I am not prepared to concede the position. I do not intend to examine it, but will state some of the difficulties. This qualified execution of the will grows out of the disposition of courts to carry into effect the intent of the testator, as far as consistent with the rules of law. The general principle is, that in construing wills according to such *347 intent, courts should look at the general intent, and give effect to that; and if there is a secondary or particular intent which interferes with it, the whole is to be reconciled as far as can be; but, at all events, give effect to the general intention, Now, upon the doctrine of cross-remainders, as explained by the learned chancellor, the life estates are saved by cutting off all the remainders but one. The consequence is, that the several estates of the twelve, after that of the one first dying, instead of going over to the survivors, descend to the heirs at law. The exceptionable part of the trust is thus turned into a separate estate, to enable the court to cut it off and save the rest. In this way, however, I am unable to comprehend how any one provision of the will, save the annuities and other independent bequests, can be carried into execution according to any general or particular intent of the testator. Not as to the nephews and nieces, because, instead of enjoying the whole fund during their lives and the survivors of them, but one twelfth and one eleventh of one twelfth is the utmost that will be left in the hands of any one, and of the last survivor. What is to become of the share of the last one, upon his death ? Is it to descend to the heirs at law as the others have, or to be distributed by the trustees in the manner particularly directed in the will 1 In the mean time, how are the annuities to be paid by the trustees, when the fund upon which they depend is passing beyond their control, upon the decease of each ? When the trustees are reduced below five, and the grand nephews are brought in, out of what fund will their one-sixteenth be taken ? Is it not obvious that upon this scheme, after considerable reduction of the number, the fund remaining in the hands of the trustees will not be adequate to bear the burdens upon it, if the annuities are to continue 1 In this way, the general intent of the testator, which obviously was to secure to the twelve the enjoyment of the rents and profits of the entire fund, during their joint lives, and after that, a distribution of it among their posterity, is altogether defeated. The twelve hold but the twelfth of the estate separately for life, besides the fraction; and the entire mass, at the death of all except the last, instead of being distributed to their posterity, has already gone to a different *348 class of persons, to wit, the heirs at law. There is not even a particular intent saved by this construction. Can it be believed, if it had been presented to the mind of the testator, that he was giving but one-twelfth of the rents and profits to each nephew and niece for their lives, with all the consequences that must follow such a disposition, he would have directed it ? It seems to me, we would not only be making a will for him, but making one that he or any other rational man would instantly reject—one that is incoherent, repugnant and impracticable. As was said by the master of the rolls, in Leake v. Robinson, 2 Merivale, 388, “ If I could at all alter the will, I should be inclined to alter it in the way in which it seems to me most probable that the testator himself would have altered it.” That would have been, if he had known the rule of law, judging from what he has done, to limit the enjoyment of the whole estate to the twelve for two lives in being, and after that a distribution as directed. That would undoubtedly come much nearer his intention than is effected by the scheme of cross-remainders. Indeed, without protracting this discussion, it may be said that no one can read the will without its being apparent to him, the scheme depends upon the preservation of the trust fund entire. Excepting the two legacies of $20,000, and $1000, and perhaps some independent bequests in the codicil, there is not another disposition made, but what is expressly or necessarily dependant upon it. If it falls, the whole must fall with it. Under the idea that we are carrying into effect the intent of the testator, as far as is consistent with the rules of law, in regard to the twelve, we are not to shut our eyes to the consequences upon other parts of the will. That these are thereby made inconsistent and impracticable, afford at least some ground for saying no such intent could have existed as that we are asked to effectuate.

I have no difficulty in conceding, if the trust term had been valid in this case, and the ultimate remainder over void, that under the rule of approximation, the term would have been sustained. The cases of Spencer v. Duke of Marlborough, 5 Bro. P. C. 572, Humberston v. Humberston, 1 P. Wms. 332, Chapman v. Brown, 3 Burr. 1626, Pitt v. Jackson, 2 Bro. C. C. 31, and others, would have afforded abundant authority. *349 The will, then, as far as sustained, would have been consistent and reasonable, as well as in pursuance of the testator’s intent.

I put the case however, for myself, upon the broad ground that, according to the language of the will, when tested by established rules of construction, and also upon adjudged cases so far as they are applicable, the twelve took an estate in the nature of a joint tenancy, and, therefore, to be held by them and the survivor of them for twelve lives; that under the 63d section it was inalienable during that period, so far as their interest was concerned; and as to the interest of the trustees, not alienable at all under the 65th section; and that the power of alienation was suspended for more than two lives in being, to wit, for twelve lives at the creation of the estate, and therefore a violation of the 15th section.

If the trust term is to be deemed an estate in the nature of a joint tenancy, it is an entirety—but one estate. The interest the twelve hold in it, is one and the same ; and under no rule of construction that I have been able to find, can it be split up for the purpose of carrying into effect the intent of the testator. If we could cut it down to a joint estate for two, instead of twelve lives, upon legal principles, and thereby bring it within the limitation of the perpetuities ah lowed by law, I do not know but I should be willing so to modify it. As before said, this would approximate nearer to the intention of the testator than any other proposed alteration. But after a diligent inquiry, I have not been able to satisfy myself that there is any principle or decision that would authorize such an interference. It would be arbitrary, and establish a precedent for courts, not to construe wills according to the intent of the testator as derived from a consideration of the language used to express it; but to make a will for him, such an one as we undertake to presume he would have made, if advised that his own was void as against law. This 1 cannot consent to do. Better that the intent of a testator should fail, in a particular case, than that the court should assume such arbitrary and undefined discretion over his estate. If we cannot execute the whole will, or some distinct and independent intent, the whole had better be declared void. The law *350 makes a better one than will usually be made by the court. Assuming the estate to be one in joint tenancy, the court below came to the conclusion that no part of the trust term could be sustained. From the result to which I am brought, it is apparent the immediate objects of the testator’s bounty, the twelve nephews and nieces, are deprived of it; and they, or their ancestors, are obliged to take their estate in common with the heirs at law. I am, however, the more reconciled to this result as to them, from the fact that other objects of his bounty must also be deprived of it, or the estate made valueless to a portion of the twelve. For if they take separate estates for life, the utmost contended for, instead of their income increasing as their numbers diminish^ as provided for in the will, it decreases by descending to the heirs at law. If the annuities are to be continued, it is obvious, after a considerable reduction of the number of the nephews and nieces, and consequent diminution of the fund, they may entirely exhaust it. The longest liver of the twelve, instead of enjoying the accumulated income of a princely and growing fortune, might not receive enough from the trustees for the necessaries of life, upon the proposed modification. Upon the whole, without pursuing the examination further, I conclude:

1. That the trust in this case comes within the third subdivision of the 55th section.

2. That the interest of the cestuis que trust is in the nature of a joint tenancy for twelve lives, and that the power of alienation is suspended during that time by the 6th section, which is in violation of the 15th, limiting perpetuities.

3. That the estate in joint tenancy, being an entirety, the twelve nephews and nieces having but one estate in the whole, cannot be reduced to the limitation of two lives within the 15th section, and the trust term is therefore altogether void.

4. That cross-remainders between the nephews and nieces are not expressly declared in the will, and cannot be implied: every intent being so clearly declared that nothing is left to implication.

5. That if the estate of the twelve nephews and nieces could be considered in the nature of a tenancy in common *351 with cross-remainders, the trust term would still be void, because, by cutting off the remainders and saving the life estates only, under the doctrine of cy pres, we should break up the trust fund, upon which the scheme of the will depends. It would be thereby entirely deranged, made inconsistent, unreasonable and impracticable ; every general and particular intent of the testator would be defeated.

1 am therefore in favor of reversing the decree of his honor the chancellor, and of the vice chancellor.

By Mr. Senator Maison.

The different devises and bequests in this will, including the ultimate remainder over, are valid at common law; and it has been very elaborately and learnedly argued that the Revised Statutes do not affect or control the provisions in this will, except so far as to render null and void the ultimate remainder over. I agree with the chancellor in the opinion, and for the reasons by him given, and by the chief justice more fully detailed, that the remainder over is void. The vice chancellor, before whom the cause was first argued, has considered the cestuis que trust as joint tenants, and the trusts in the will as valid and legal. The chancellor, on the appeal from the vice chancellor, considers the cestuis que trust as tenants in common, with cross-remainders, and decides that the trusts in the will cannot be fully carried into effect by reason of the provisions of the Revised Statutes, and reverses the decree of the vice chancellor. When judges of such learning and ability, after devoting to the case all their mental energies, in patient investigation and labored research, have been unable to harmonize in their views and opinions on this will, it cannot well be expected that those of more humble pretensions should be able to form an opinion which will meet with general satisfaction. After bestowing upon this case much anxious labor and deliberation, I am reluctantly compelled to disagree with both.

The first section of the article on uses and trusts, 1 R. S. 727, § 45, declares, that “ uses and trusts, except as authorized, and modified in this article, are abolished.” The reasons which induced the legislature to adopt this provision, are ably and eloquently set forth in the revisers’ notes ; they were to *352 simplify the law relative to real estates, to annihilate all the entangling perplexities, the complicated and abstruse distinctions, and palpable inconsistencies and contradictions to be found in our books, which has enshrouded the law relating to real estate in dark mysterious doubt, and to render that which was incomprehensible, complex and uncertain—plain, consistent and intelligible. Never were the powers of a legislature more beneficially exerted than when they applied the axe to the root of the evil, in abolishing all uses and trusts, except those specified in the provisions of the statute.

The 55th section, page 728, declares that express trusts may be created for four specified purposes : 1. To sell lands for the benefit of creditors ; 2. To sell, mortgage, or lease lands for the benefit of legatees, or for the purpose of satisfying any charge thereon; 3. To receive the rents and profits of land, and apply them to the use of any person during the life of such person, or for any shorter term, subject to the rules prescribed in the first article of that title; and 4. To receive the rents and profits of lands, and to accumulate the same for the purposes and within the limits prescribed in the first title of that article. It is contended, that the 3d subdivision of this section is authoritative of the trust in this will, and gives to it legal vitality. Although the section seems to authorize a trust to receive rents and profits to be applied to the use of only one person during his life, yet by the act of the legislature, 2 R, S. 778, § 11, it may be read so as to authorize the creation of a trust, to receive rents and profits to be applied to the use of persons during the lives of such persons. Now, what was the object of the legislature in adopting this 55th section ? The object is lucidly set forth by the revisers in their notes, and the vice chancellor and chancellor both agree in opinion with the revisers, that the grand, prominent and unquestionable object of the legislature was to enable persons by devise or deed to make provision for the helpless and infirm; for married women, whose husbands may be deemed unfit to be trusted with the management of property; for dissolute and improvident persons, spendthrifts, whose wasteful and profligate habits render it necessary that the fund intended for their support should be beyond their reach or control. This object is also apparent *353 from the provisions of this statute, which became needful and proper, in order that the object should not be frustrated. The 63d section, p. 730, declares, that “ no person beneficially interested in a trust for the receipt of the rents and profits of lands can assign, or in any manner dispose of such interest ; and with a view of more certainly securing to the objects of the bounty of the testator, the absolute certain enjoyment of the funds designed for their use, as for other purposes, the legislature has thrown around them another safeguard, by declaring in the 65th section, that “where the trust shall be expressed in the instrument creating the estate, every sale, conveyance or other act of the trustees in contravention of the trust, shall be absolutely void,” The provisions thus far are full and complete, in securing the fund for the enjoyment of those for whose use it is intended, but there is reserved to the trustees the discretionary right of paying to the use of the cestuis que trust, such sum and sums, at such time and times, as the trustees shall consider the necessity of the cestuis que trust may require. This discretionary power is necessarily implied by the word apply, in the 55th section. The trustee is to receive the rents, and apply them to the use, and in case the trustee abuses this discretion, or does not perform the trust, the cestui que trust, by the 60th section, p. 729, may apply to a court of equity to enforce its performance ; which court, by the 70th and 71st sections may remove the trustee, if he shall be deemed for any cause to be an unsuitable person to execute the trust, and appoint another in his place.

I am not to be understood as going so far as to say, that no express trust can be created under any circumstances, unless there be in the trustee plenary and uncontrolled discretion in paying to ilia use of the cestui que trust such sums at such times as he shall see fit; for it is apparent that if the devisor or grant- or, create a trust to pay the cestui que trust, a certain specified sum, there the trustee has no discretion in paying or withholding such sum; the duty is imperative ; he must pay as. directed, and this for a very sensible reason, that in the direction to pay a specified sum, the creator of the trust recognizes the ability of the cestui que trust to dispose of such sum to his *354 own use, with proper prudence and discretion ; while he may doubt the propriety of giving to the cestui que trust the control of the whole estate out of which the fund may arise. In harmony with this view is the authority given by the act, p. 730, § 63, to such cestui que trust, to assign his right and interest, where the payment of a sum in gross is directed. Is the trust in this will such an one as comes within the intent, spirit or policy , of the statute ; or rather, is it not in palpable direct contravention of its provisions 1 Who are these cestuis que trust, the twelve nephews and nieces of the testator ? Are they married women, infirm, helpless; are they dissolute and improvident; are they spendthrifts, unfit to be trusted with the management of property ? They are the very persons who, of all others, the testator has singled out as the most calculating, prudent, sagacious and trust worthy persons, to manage and improve this enormous estate. He has entrusted them with full and absolute power over his whole estate, confident in the belief that they will faithfully and honestly fulfil the requisitions of his will. He has made these very cestuis que trust his trustees; nay, further, he has, in the face of the statute, authorized each of them “ to alienate, sell, assign and transfer their respective interests, shares or proportions of the rents, proceeds and income of any part of his real estate, in his will directed to be paid to them, or any part thereof, with the written consent of a majority of them." It is true, the testator has appointed his brother a co-trustee with these twelve cestuis que trust, but that can have no influence in removing the objections stated. It is apparent he is merely a nominal trustee ; his power and control over the property, in opposition to the views and wishes of a majority of them, is nothing. The testator has left no discretion to be exercised by the trustees in paying these trust monies, as the necessities of the cestuis que trust may require, and as prudence may dictate. The direction in the will is imperative, that the executors and trustees account for, divide, and pay over to the cestuis que trust, the whole of their respective shares of the income of this estate. Indeed, the giving of any discretion in the will would be a palpable absurdity; these twelve nephews and nieces, as trustees, are to receive all the rents, and these same persons, in *355 the double character of trustees and cestuis que trust, are to divide among themselves, and to pay themselves each one his share. The cestuis que trust, being the same persons who are trustees, have, contrary to the express provisions of the statute, the whole legal and equitable estate. This trust is not then, in this view of it, such a trust as was designed to be authorized by the statute.

But there is another objection to the validity of this trust: it effectually suspends the power of alienation for more than two lives in bein'g. The object of the testator, as appears from the whole will, is to tie up this estate for twelve livesf and for two years thereafter. There can be no question of this; for, after the expiration of the twelve lives, he directs a fair and just division and distribution of his estate, but no such division and distribution shall take place until two years after the decease of all his nephews and nieces. If this trust could be deemed a valid trust, as the testator intended it should be, the whole legal and equitable estate, by the 60th section, is in the trustees, subject only to the execution of the trust; and the cestuis que trust have no estate or interest in the lands, having only a mere naked right to enforce the performance of the trust in equity; and by the 65th section, the trustees cannot sell the trust estate, in contravention of the trust. There is then an absolute statutory prohibition to sell, during the lives of these twelve nephews and nieces, and during these lives the power of alienation is absolutely suspended.

The object of the revisers and of the legislature in these enactments, was to abridge the then existing power of rendering real estate inalienable. The revisers, in their notes, state the difference between the sections by them proposed for adoption and which were adopted, and the then existing law, to consist in the following particulars: “ I. Alienation cannot be protracted by means of mere nominees, unconnected with the estate beyond the period of two lives ; 2. No more than two successive estates for life can be created; and 3. The period of twenty-one years after a life or lives in being is no longer allowed as an absolute term ; but the rule is restored to its original object, by being confined to the case of actual i nfancy, which is directly provided for, by rendering thedis *356 position defeasible, and allowing another to be substituted during that period.” It cannot be necessary, at this late day, to inquire into the reasons which in this country render it extremely proper that estates should not be tied up, and their alienability suspended for an unreasonable length of time ; they are well known to all who are the least conversant with the principles and spirit of our institutions. It is enough on this present occasion to know, that, the legislature, in carrying out those principles, have expressly enacted, p. 723, § 15, that the absolute power of alienation shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance of not more than two lives in being at the creation of the estate, except in the single case mentioned in the next section, which does not reach this case. This estate is therefore, in the manner it is sought by the will to be disposed of, perfectly and absolutely inalienable ; the trusts cannot be carried into effect, unless the estate remains entire in the trustees, until the death of the last survivor of the twelve nephews and nieces. The trust is therefore, for this reason, in my judgment, not such an one as is authorized by the statute, and cannot prevail.

It is however urged upon our consideration, that the power of alienation is not suspended, because there are persons in being who can, by uniting, convey a fee; the remainder over being deemed void, the reversion is in the heirs, and the heirs, cestuis que trust and trustees together, can convey a fee—and that, although the trustees cannot sell in contravention of the trust, yet they can sell subject to the trust. There might be some plausibility in the arguments ably and ingeniously urged on this branch of the case, were it not for the fact that any sale or conveyance of the estate, would be in direct contravention of the trust; all the rents and profits of this estate are disposed of by the trust; every fraction which can be produced from the land is appropriated to the use of the cestuis que trust; not a foot of this estate can be sold, unless in contravention of the trust. But it is said a sale can be made, not in' contravention, but subject to the trust. I must be excused in saying that this appears to me quite absurd. Who would purchase any part of this estate, where the purchaser could not be permitted to en *357 joy even the smallest fraction of benefit or advantage which the premises might produce 1 for even that smallest portion belongs to the cestuis que trust. Land thus shackled and encumbered is worth nothing; it is valueless; the fee is not worth the paper upon which the conveyance would be written. The power of alienation is as effectually suspended where no human being will buy, where there is nothing to sell, as where a conveyance is absolutely prohibited ; the effect is precisely and identically the same. But the cestuis que trust cannot convey—they cannot release—they have nothing in the estate but a mere naked right to have the performance of the trust enforced. The language of the act is absolute and imperative: they “ shall not assign or in any manner dispose of their interestthey may refuse to receive the rents and profits, but they cannot legally bind themselves that they never will receive them, for that would be in a manner disposing of them. Even if they should obligate themselves that they never would receive the rents, and thereafter they should claim in opposition to their deed all the rents which they had not received, it cannot be doubted but that the court of chancery would order those arrearages of rents to be paid to them, upon the ground that the deed is absolutely void. The shackles and encumbrances then still remain ; the power of alienation is yet suspended, and must necessarily remain suspended during the twelve lives.

The legislature, in carrying out their plan as to the alienability of estates, have, with proper caution, restricted the power of creating trusts of the rents and profits of land, and have subjected them to the same rules as control the disposition of estates, so far forth as relates to the creation and continuation of the trust; aware that a full disposition of all the rents and profits was tantamount to an absolute control of the fee. The interests of the cestuis que trust have been considered, upon the argument, what in fact they are not, estates. The cestuis que trust have been considered as the persons holding an intermediate or precedent estate, the remainder being limited to the grand-nephews and nieces, and their children. It is unnecessary, from the view I have taken of this case, to examine with much minuteness or particularity, what kind of *358 quasi estates these cestuis que trust have. The vice chancellor is of opinion that they are joint tenants; the chancellor, that they are tenants in common with cross-remainders. If it were at all material to express an opinion on this point, I should hold that they both were partly right and partly wrong. The directions in the will are, to pay over and divide the rents among the twelve nephews and nieces during' their natural lives, and to the survivors and survivor of them. This creates a joint tenancy ; they all come in at the same time and by the same title. The will then proceeds, “ equally to be divided between them.” This regulates the enjoyment of the estate among them as tenants in common. “ Or such of them as shall from from time to time be living, share and share alikecarrying out the idea to the last life, that the survivors take the deceased’s share as joint tenants, to be enjoyed as tenants in common. Was the estate a tenancy in common, then when one of the twelve, having children, should die, his share would go to bis children. This was not intended by the testator, for he directs his estate to go to the survivors and survivor, and the children of the nephews and nieces have no participation in the estate until the lapse of two years after the decease of all the nephews and nieces. What Lord Ellenborough said in Boswell v. Abey, 1 Maule & Selw. 428, is quite pertinent to this case. He said, “ The words tenants in common are of a flexible meaning, and may be understood, that although they should take by survivorship as joint tenants, yet the enjoyment was to be regulated among them as tenants in common. The prevailing intention of the testator seems to have been, that the estate should not go over till the death of the survivor.” And Chief Justice Best, in Wollen v. Andrews, 9 Com. Law R. 345, said, the remark of Lord Ellenborough, above, was applicable to that case, because the the testator has expressly mentioned the survivors and survivor, by which he means not the surviving stock, but the surviving children. 2 Cruise, tit. 18, ch. 1, § 26, 27, 28, 29. 6 id. tit 38, ch. 15, § 4, 5, 6, 7; also § 1, pt. 6, 7. Had the devise been to the twelve, share and share alike, or equally, without the word survivor, Gaskin v. Gaskin, 2 Cowp. 657; Prince v. Heylin, 1 Atk. 493; Heathe v. Heathe, 2 id. 122, or to them *359 and their heirs, and the longest liver of them, equally to be divided between them, Blisset v. Cranwell, 1 Salk 226; 3 Lev. 372; Prince v. Heylin, 1 Atk. 493 ; Warner v. Stone, Prec. in Ch. 491, then would they have been tenants in common. As was remarked in the case of Clerk v. Clerk, 2 Vern. 323, so may it be remarked in this, that although the words “ equally to be divided between them, sometimes in a will, may make a tenancy in common, yet it is only by construction, and that it was the intent of the testator that there should be a division; yet if afterwards it is declared in the will it should go to the survivor, that would oust such a construction, and it will be a joint estate.” See also Tuckerman v. Jeffries, 11 Mod. 108 ; Holt, 370 ; 1 Vent. 188 ; Com. Dig. tit. Estates by Devise, n. 8 ; Hawes v. Hawes, 1 Wils. 165 ; 3 East, 533; and Barber v. Giles, 2 P. Wms. 280. But the cestuis que trust have no estate whatever in the premises ; the whole legal and equitable estate are in the trustees ; and besides a legal and equitable estate, there is none which can exist in the cestuis que trust. The have nothing but a right to receive the rents, a mere chose in action, and to enforce the payment thereof in a court of equity. This is not the subject matter of a tenancy, either joint or common ; much less the subject of cross-remainders. The trustees having the legal and equitable title, and the cestuis que trust the right to receive the fruits of the estate, together form a precedent estate; and it is a precedent estate, created to continue during the lives of twelve persons in being; during which time the absolute power of alienation is suspended, there being no persons in being by whom an absolute fee in possession can be conveyed : the power of the persons in being, who have the fee to convey, is taken away expressly by statute, and nothing short of legislative interposition can restore it.

But again : The trust in this will is not authorized or sanctioned by any of the provisions of section 53. The power given to the trustees is an unlimited power, except that of conveying and appropriating the rents otherwise than directed in the will; they are empowered to improve and manage the estate. I know not what the trustee could not do with this estate, under the head of improvment; any thing, every *360 thing which will tend to enhance its value. They have the power of laying out streets, of tearing down and building up-houses, churches, theatres, or any other edifices which the peculiar locality of the premises would seem to justify as an improvement; and all the “ necessary expenses, charges and disbursements, consequent upon such improvements, are first to be paid, before there is to be any division or distribution of the rents.” It may well be, that it might be necessary for years to apply all the rents which the premises might produce, to meet the expenses of these improvements, and the cestuis que trust thus effectually deprived of the enjoyment of the intended bounty, which it was the-design of the-statute should be most certainly secured and faithfully applied for their use and enjoyment. The creation of such a trust was never intended to be authorized by the statute, however well it comports with the design and object of the testator; for certainly he who would make the cestuis que trust recipients of the rents for their lives, their own trustees, to receive the rents and divide them among themselves, giving to them as trustees an absolute fee of his estate, determinable two years after the death of the cestuis que trust, would not deem it inconsistent to empower them to do with this estate what they pleased, by way of improvement, as the expenses thereof come out of their own pockets, and particularly as after their death the whole property, with the improvements, will go to their children, and their children’s children. But the intent of the testator is in conflict with the intent of the law ; and in such a contest, the law must triumph, or else must be imparted to every man the power to repeal a statute when it is in the way of gratifying his will or inclination.

It is. however, contended, that if the trusts in this will cannot be directly carried into effect by reason of the provisions, of the statute,and are to be deemed illegal orinvalid trusts,yet they can be indirectly carried into full effect under section 58. That section declares, that where an express trust shall be created for any purpose not enumerated in the preceding sections,no estate shall exist in the trustees, but the trust, if directing or authorizing the performance of any act which may be lawfully performed under <zjpotoe?’,shall be valid as a power in *361 trust, subject to the provisions in relation to such powers, contained in the third article of this title. The first difficulty to be encountered on the threshold is, that if this section is to control this will, then is the manifest, direct, unequivocal intent of the testator, most clearly thwarted and perverted, and there is a total and unqualified repeal of a part of his will. This section declares, no estate shall vest in the trustees. The will provides, “ I do will, devise and bequeath all my estate, real and persona], &c. to my executors and trustees, and the survivors of them, their heirs and assigns, forever, as joint tenants, and not as tenants in common, in trust,&c.; and the fee is necessarily invested in them, for the purpose of carrying out the general design of the testator, as they are to convey that fee to the grand-nephews and nieces, and the children of such as shall be dead, after the death of the twelve nephews and nieces. In connection with section 58, is to be read section 59, which declares, that in every case where the trust shall be valid as a power, the lands to which the trust relates, shall remain or descend to the persons otherwise entitled, subject to the execution of the trust as a power. This at once transfers the fee from the trustees to the heirs at law, where the testator intended it never should fully vest. A conveyance to trustees and their heirs in trust, is a conveyance recognized by the law, and yet would the giving of such conveyance be adjudged illegal; and that which the testator might lawfully do, is to be entirely vacated, in order to carry into effect the trust in this will as a power in trust, which, as an express trust, is utterly void. What is a power in trust ? The Revised Statutes have given a technical definition of a power in trust, whether general or special. They declare, 1 R. S. 734, § 94, that a general power is in trust when any person, or class of persons, other than the grantee of such power, is designated as entitled to the proceeds, or any portion of the proceeds, or other benefits to result from the alienation of the lands, according to the power. They declare in the next section that a special power is in trust, 1. When the disposition which it authorizes is limited to be made to any person, or class of persons, other than the grantee of such power; and 2. *362 When any person or class of persons, other than the grantee, is designated as entitled to any benefit from the disposition or charge authorized by the power. There are no other powers in trust recognized by the statute; and though a general and special power differ in some respects, yet they agree in this : that the grantee of the power must be a person other than he who is entitled to the benefits of the trust. In this will the trustees are the grantees of the power, and they are the very persons, with the exception of one, who are entitled to the benefits of the trust. The addition of the one can make no difference ; it does not remove the objection that all the cestuis que trust are grantees of the power. It appears to me, there can be no well grounded pretence that the trusts in this will can be carried into execution as a power in trust. But even if this objection were removed, by converting this trust into a power in trust, the power of alienation is alike suspended. The next section (96th) declaring that every trust power, unless its execution or non-execution is made expressly to depend on the will of the grantee, is imperative, and imposes a duty on the grantee, the performance of which may be compelled in equity for the benefit of the parties interested. Although the fee of this estate would be taken from the trustees, by converting this trust into a power in trust, and be vested in the heirs at law, yet the heirs at law hold subject to the charge of this power, and they cannot alien until the power be spent by the death of the twelve nephews and nieces. The power of alienation, therefore, is as effectually suspended by considering this trust as a power in trust, as in the c

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