Hawley v. James

The following opinions were delivered by members of this court:

By Chief J ustice Nelson.

The view which 1 have taken of this case is confined chiefly to an examination of the questions involved in the trust term, and the estates in remainder limited thereon. There are some minor points which it will become necessary to notice, in the disposition and settlement of several independant bequests, upon the conclusions at which I have arrived.

The trust term has been properly divided into two branches; 1. Its object, or the purposes for which it was created, and whether it is authorized by law; and 2. Its duration, *114 and whether it be limited in this respect according to law. There can be no doubt the will must have been pronounced valid previous to the revised statutes. The celebrated case upon the will of Thellusson, and the more recent one upon the will of Henry Bengough, establish principles at common law that would sustain every provision now considered objectionable. The great and fundamental difficulty in the will under consideration consists in the objection, that it transgresses the statute forbidding perpetuities beyond a certain period. The above cases show these were permitted before the statute for any number of lives in being, and twenty-one years ; a rule comprehensive enough to sustain in this case the trust term, the accumulations, and all the remainders ; but their validity now depends upon the statutes, which must necessarily lead us to an examination of them in connection with the several provisions of the will that have been deemed objectionable.

As to the. object of the trust term, or purposes for which it was created: the testator has declared his object to be to confide his property to the care of trustees for greater caution, till his minor children and grand-children become of age; and as a natural consequence he has created numerous trusts and directed them to be executed for the benefit of his family, or of those dependent upon and entitled to the enjoyment of the estate during the time they are thus deprived of it. This trust term, which is the estate of the trustees, since the revised statutes, depends upon the validity of these trusts or some of them ; and it will therefore be necessary briefly to refer to. them. My examination, however, shall be confined to those which operate to sustain the devise of the legal estate to the trustees; all the others are mere powers in trust that have no necessary connection with the term. In the case of a devise to executors or trustees, there are but three kinds of express trusts that are accompanied with the legal estate authorized by the revised statutes. The trust to sell or mortgage lands, in the first and second subdivisions of the 55th section, which, if created by deed, carries the title, does not do so in the case of a will, according to the provisions of the 56th section. These three kinds of *115 trusts in a will are, 1. A trust to lease‘lands for the benefit of legatees, or for the purpose of satisfying any charge thereon which is within the 2d subdivision of the 55th section ; 2. To receive the rents and profits of land and apply them to the use of any person, which is authorized by the 3d subdivision; 3. To receive the rents and profits of land and to accumulate the same under the 4th subdivision. The trusts provided for under the 1st and 2d subdivisions, with the exception of the one to lease under the 2d, to which I have referred in the case of a devise, should have been classed under the head of powers, as the legal estate descends to the heirs at law or passes under some other clause of the will as the case may be, subject to the execution of the power, § 58. From this view, it is apparent, there can be no more than three descriptions of trusts in the will that can sustain the legal estate in the trustees, and of course that can in any way affect the trust term. These may be classed under the three authorized trusts, as follows: 1. The trust to pay legacies, and under which head may be included the trust to pay portions, such as the $50,000 to the children of Augustus, the testator’s son, and the $20,000 to each of the two grand-daughters; to make advances to the sons and grand-sons, during the term, not exceeding one fourth of their anticipated shares, and to pay portions to the daughters and grand-daughters, in the event of marriage; all these are in the nature of legacies, and may be properly classed with them; 2. The trust to educate and support the minor children, in the event of the death of Mrs. James, and to support the widows, and to educate and support the children of deceased sons and daughters, and to pay annuities; and 3. The trust to accumulate "the rents and profits not wanted for the purpose of the .will. All these are trusts which may be lawfully created under the 55th section, and when they are, vest in the trustees the^legal estate for the purpose of their execution. Whether they have been created in conformity to the section, so as to sustain the estate in the trustees, is another question which 1 will now examine. For the sake of brevity and clearness, I shall divide these trusts into two classes: 1. Those which are future *116 and contingent, and 2. those which are present and active. It is to me an obvious proposition upon the statutes, that a future trust, whether contingent or not, cannot vest a present estate in the trustees, or sustain a devise of it to them. , Until the trust arises, or becomes active so as to require the collection and application of the rents and profits, the trustees can have no concern with the estate. By the creation of a future or contingent trust, they are not authorized to lease lands or receive the rents and profits till the beneficiaries are entitled to them. In the case of a contingent trust this may never happen, nor can it happen in respect to a future one, in any case, till the 1 time when it takes effect in possession. It is only express trusts that vest the estate in the trustees, and as defined in the 55th section in the case of a will, are, to lease lands, and to receive rents and profits for purposes there specified. The legal estate is given to them as convenient if not necessary to enable them to perform the trusts, to lease the lands, collect the rents, &c.; but great abuse would follow, if permitted to vest them now with the legal estate to enable them to perform a future trust that might or might not happen. They would hold the title without any right to the possession. The estate would be in one person, and the possession and profits in another. This was a defect in the old law which it was intended to remedy in the 55th section, by confining trusts to active, and which must, of necessity, be present trusts. Where no present authority is given to lease, or to collect the rents, but to take effect at a future day, until it takes effect, it cannot be said that any trust exists. It is in expectancy, or a trust by possibility. This view disposes of all the trusts in the will except three, viz. the trusts, 1. To accumulate rents and profits; 2. To pay legacies; and 3. To pay annuities. And all the other are future, and most of them contingent and may never arise. The trust to pay debts I have not noticed, because it is an unlawful one; no such trust is authorized except to sell lands.

The trust to accumulate rents and profits was adjudged void by the chancellor, and was conceded to be so. by most of the counsel on the argument. The 37th section of the *117 1st article authorizes an accumulation for the benefit of minors then in being, and which is to terminate at the expiration of their minority. Here it is for the benefit of adults as well as minors, and is therefore an express violation of this section. The trust to pay legacies is no doubt valid, but it is an unimportant one as respects the trust term, because the will requires them to be paid in a short time, and when paid the trust ceases. The trust to pay annuities amounting to $3675 is valid, and took effect immediately on the death of the testator, and vests in the trustees the legal estate under the operation of the 60th section, and as it is to continue during the time for which the term is limited, it might sustain it throughout. There is some difficulty in determining whether this trust falls under the 2d or 3d subdivision of the 55th section, though I am inclined to the opinion it should be classed under the latter. Considering an annuity as legally comprehended in the term legacy, or as being simply a charge upon the land, it would come within the trust authorized by the 2d subdivision. If it may be considered with more propriety a trust to receive rents and profits and apply them to the use of a person, then it falls under the 3d. An annuity may be included within the term legacy for some purposes, unless there is something to show that the testator himself distinguished between them. This has been repeatedly so decided in respect to the fund or provision for payment, as in the case of the will of the Duke of Bolton, where Lord Thurlow held that legacies being a charge on the real estate, annuities were also charged within the meaning of the term. 7 Ves. 534. In the cass of Hancock v. Horton, 7 Ves. 503, they were considered distinguishable upon the terms of the will. Under the influence of this rule, the trustees might possibly execute the trust within the power to lease for the benefit of legatees and to pay charges, contained in the 2d subdivision. The annuitants being considered legatees or the annuities a charge upon the lands, as they virtually are by the I5th clause of the will ? but the receipt of the rents and profits to pay them seems more appropriately to come under the trust in the 3d subdivision. It is a receipt of them to be applied to the use of persons *118 during their lives, or for a shorter period, as the case may , ftere ft js for the period of the trust term. It is of no other importance under which subdivison this trust is classed, ^an in respect to the power of the annuitants to assign their interest, If viewed strictly as coming within the term legacy, which means a gross sum, or as a charge upon land and nothing more, they then might sell and convey their interest ; if viewed as a receipt of rents to be applied to the use of them, and they are prohibited from selling by the 63d section. It appears to me, however, if it should be determined that it came within the 2d subdivision, upon the principles stated, still the interest ought to be considered unassignable within the section. It provides 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. If the section stopped here, there could be no doubt even a vested future legacy could ndt be sold, for the prohibition applies to every case of a person interested in the receipt of rents and profits by the trustees. It however goes on: “ but the rights and interest of every person for whose benefit a trust for the payment of a sum in gross is created is assignable.” This qualification saves legacies and charges which are gross sums ; but to include annuities, we must not only consider them as coming within the term legacy, for the purpose of payment, but adjudge them to be a gross "sum. It seems to me this would be a forced construction of the language of the section, especially when its'object evidently is to prohibit the assignment of an interest in the periodical application of rents and profits to the use of persons. I have always believed the trust that would be most usually created, under the authority of the 3d subdivision, to receive rents and apply them to the use of a person would be by way of annuity—payable monthly, quarterly, semi-annually or annually. In this way the person creating it fixes the amount which he intends shall be thus periodically paid, to a son, a daughter, or other object of his regard. It is the obvious propriety of permitting him to fix the amount, if he pleases, instead of compelling him to refer it to the arbitrary discretion of his trustee, that has *119 led me to the opinion that such a trust is fairly within this 3d subdivision. I could not believe that the legislature intended to compel a father to give an estate absolutely to an improvident son, or put it into the hands of a third person to dole it out at his will; but that he might fix the amount to be paid and the times of payment. Without, however, pursuing this inquiry farther, whether the trust may be properly classed under the 2d or 3d subdivision, I think it is valid under,one or the other, and is one of the express trusts that may sustain the legal estate in the trustees throughout the limitation of the term.

The next subject of consideration is the trust term in respect to its duration, that is, whether it is properly limited under the statutes. The limitation is found in the 17th clause of the will, where the testator directs that the trust term shall continue, and the final division of the estate shall not take place “until the youngest of my children and grand-children living at the date of this my will, and attaining the age of 21 years, shall have attained that age.” At the date of the will, there were six children and seven grandchildren, minors, in all thirteen ; and it is apparent from the language and intent of the testator, the trust was to continue till the whole thirteen, or those surviving the period of the limitation, should reach the age of 21 years. Youngest of my children and grand-children, standing alone, might well enough refer to the youngest of each class; but the remaining part of the clause is conclusive against this interpretation ; it must be not only the youngest, but the youngest living and attaining the age of 21 years, and who shall have attained that age. If the youngest of each class should die, short of minority, the event designated has not happened, because there may be one living who will attain the age of 21, and who would be the youngest of the class attaining that age. The thirteen minorities, therefore, must all be extinguished, by death or lapse of time, before the trust terminates according to the intent of the will. Although the testator obviously contemplated the possible death of some of the minors before the youngest living, who might arrive at majority, had attained that age ; and therefore comprehend *120 ed in the class all his minor children and grand-children; gtj¡j he has not expressly provided for the termination of the trust upon the event of the death of all of them before that Per>°d. He seems to have expected that some of them would attain the age of 21, and having provided for the duration of the trust till the youngest living of the class should attain that age, he thereby insured its continuance till the termination of all the minorities. It is manifest, however, from this limitation and other provisions of the will, he intended the trust should terminate with the minorities, and that the division of his estate should then take place. This view of the 17th clause, and which was the one taken by the court below, was not seriously questioned upon the argument. The trust estate or term, then, may be said to depend upon lives, upon minorities, and upon both combined. The thirteen may all have died before any one attained the age of 21. In this respect it depended upon lives—upon thirteen lives; all might survive the period when the youngest reached that age; then it depended upon minorities; some of the minors might die and others attain their majority ; then its duration might be said to depend upon lives and minorities combined. In the first case, the trust term would be one whose duration depended simply upon lives ; in the second, it would be a term for 20 years and 10 days, as the youngest of both classes, which was a grand-child, would not reach 21 till the expiration of that period ; and in the third case its duration may be said to depend upon lives and minorities combined. Now if in either aspect the limitation of the estate might suspend the power of alienation beyond the time allowed by .the law, it will be impossible to sustain it, because the rule is well established that a limitation which, by possibility, may create such a suspension, is void. Executory devises and the limitation of springing and future uses and trusts, are cntailments of property which cannot be barred by fine or otherwise; and therefore, unless the limitation or settlement be such that the future estate must certainly vest at some definite time, a perpetuity may be created. Courts therefore heretofore, and the legislature now have fixed upon such time ; and if the limita *121 tion be not such that it must take effect, if at all, within the prescribed period, it is void. So strict is the law not to permit a perpetuity, that it is not sufficient if in the event at the death of the testator, it turns out that the estate is alienable within the proper time, but it must be made so by the will, and not be the result of chance. The proposition is laid down by Mr. Cruise, and may be found in all the books on this subject, that it is not material how the facts turns out; for the possibility, at the creation of such executory limitation, that the event on which its existence depends may exceed in point of time, the limits allowed, vitiates it ab initio. 4 Cruise, 449. 4 Kent’s Comm. 283. Ram. on Wills, 6. At the common law a perpetuity could be created only by means of a contingent future estate. Before the occurrence of the contingency and the actual vesting of the estate in some one, there was no person in being who could unite with the owner of the present or prior estate in the conveyance of the fee. Where the remainder or future estate is vested, or where lands are given to A. for life, remainder to B., a person then in being, there is no suspense of the power of alienation ; for the owners of the two estates uniting may convey the whole, each one being able to convey his own absolute interest. The revised statutes have made present vested estates inalienable, and therefore perpetuities may now be created in cases unknown to the common law ; still many of the common law rules concerning perpetuities created by future estates must be applicable to the creation or settlement of present estates as they are now liable to like abuses. These must now be circumscribed as carefully within the proper limits as future estates formerly were. Like an executory devise or future use, their tendency to a perpetuity cannot be- barred by fine or recovery, or by any other means ; and if not limited within the period allowed by law, the limitation must of necessity be pronounced void, or perpetuities may exist in spite of the law. In this case the trust term is a present vested estate, and is subject to the statutory inalienability during the whole period of its limitation. The trustees cannot convey by rea *122 son of the 65th section; the annuitants, for whose benefit alone, upon my view, the trust estate exists, cannot by reason of the 63d section. There exists, therefore, a complete suspension of ownership puring the term. Even if we should concede the trust to pay annuities came within the 2d subdivision, so as to be unaffected by the 63d section, and therefore the interest assignable, still, in my judgment, the term would be inalienable. The trustees being unable to alien under the prohibition of the 65th section, the legal estate must remain in them during the trust. If the annuitants should sell to third persons, the trustees would hold for their benefit; and if they should sell to the trustees, in equity they would then hold for the benefit of themselves. The trust would not cease, because the purposes of it would not be at an end. Perhaps the annuitants might release it, give it up, and thereby extinguish the trust, and thus put an end to the term; but the court, I apprehend, cannot act upon this possibility. This would not be a power to alien of assign, but to destroy an estate; not to sell for value, but to make a gift; and if a sufficient reason for taking the trust out of the prohibition against perpetuities, the statute would be virtually repealed, for then a trust might bo limited for any period of time, however remote—one hundred years or more, if the annuitants possessed the power to put an end to it by voluntary gift: a very different power, in respect to the transmission of property, from the one to sell for value. It is obvious if the power to destroy the trust estate, by a sacrifice of it, satisfies the statute, then the 63d section seems to me to have been always nugatory ; it prohibits assignment, and if to destroy is equivalent to assignment, then in no imaginable case, except perhaps of minority, could there be a trust where the 63d section would operate to suspend ownership. Upon this interpretation, every cestui que trust could give up or abandon his interest to the trustees; it may be done in all cases of trusts coming directly within this section, and if this is assignment then the interest is alienable. This cannot be the power of alienation contemplated in the 14th and 15th sections of the statute. They mean a power to sell and convey in the ordinary way for value. The trust *123 term then I consider inalienable, both as it respects the estate of the trustees and the interest of the annuitants, and the question then fairly arises, and must be decided, whether its limitation, is within the prescribed period of the statute prohibiling perpetuities.

The 15th § of the 1st article, 1 R. S. 723, gives the rule, which is as follows: “ 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." The next section allows a contingent remainder in fee to be created on a prior remainder in fee, to take effect in case the persons to whom the first one is limited should die under age, or upon any other contingency upon which the estate may determine before they attain full age. Taking the two sections together, and they are so to be construed, they permit a limitation for two lives in being, and twenty-one years in addition in case of actual .minority— for example, an estate to A. for life, remainder to his children in fee; but in case such children shall die under the age of twenty-one years, then to B. in fee. Here the ownership may be suspended for the life of A., and the actual infancy of his children, but in no event can exceed that length of time. If one of the children reach 21 years, B.’s remainder is void. The case upon the will of Henry Bengough was decided in 1827; it involved this question, the only important one in it, viz. whether as the law then stood in England, there could be a suspension of the power of alienation for any number of lives in being, (there were 28 in that- ease,) and 21 years as an absolute term without regard to infancy. The court held that though the rule of law was framed in analogy to the case of a strict settlement, where the 21 years was allowed in respect to the infancy of a tenant in tail, it had been fully settled that a limitation by way of executory devise or springing use, might be made to depend upon an absolute term of 21 years after lives in being. The 16th § was intended to change this rule, and confine the 21 years to the case of *124 actual infancy, as the 15th had changed the other branch of it, arid cut down the lives from an unlimited number in being to two only. The maximum duration, then, of the suspension of the power of alienation, according to the statute, is for the period of two lives in being, and twenty-one years in addition, in case of infancy.^ This is the longest possible time, under any view of the section', that is permitted ; arid if the opinion before expressed, that this trust term is so limited as to depend upon thirteen lives in one aspect of it, is not a mistaken one, and I understood to be conceded upon the argument that it is so limited, it is directly repugnant to the letter of the statute. It seems to me there can be but one answer to this conclusion, and that is a denial that the term depends upon lives at all; for if it depends upon one, it may depend upon all, as no distinction can be made between them. The court below sustained the terrh and expressed the opinion, 1. That the 15th section did not absolutely require the trust estáte authorized by the 55th § to be limited so as to depend upon two specified lives—a position I shall hereafter examine ; and 2. That the limitation in this case was an estate for years, for 20 years and 10 days, determinable not on lives, but upon minorities. I am not disposed to deny it may be deemed an estate for years, and assuming the youngest grand-child to live and attain 21, it would be a term for 20 years and 10 days; and if it depended exclusively upon minorities, would be a term for that number of years, determinable sooner if the minorities should sooner cease; but when we speak of an estate depending upon minorities as contradistinguished front lives, we must and should mean minorities ceasing by lapse of time—ceasing by reaching majorityX' When we contemplate their termination by death, and the estate as depending or ending upon that event, it depends upon and is determinable by lives. It was conceded on the argument by most if not all the counsel, that upon the most reasonable construction of this clause of the will, the term depended on the lives of the 13 aé well as on their minorities. This follows, even from the position that the term was to continue until all the minorities terminated# for *125 while human life is uncertain, it- is impossible to limit an estate upon a number of minorities without including a limitation upon as many lives; and if it be illegal to make such a limitation upon lives, the combination of minorities cannot help it, any more than any other contingency that would not necessarily happen, short of the termination of the lives. If it could be certain that the minorities would cease by lapse of time before the termination of the lives, then I admit it would' be an estate depending upon minorities and not upon lives; but as it may terminate upon the death of all of the thirteen before any one attains majority, it is clear that in that view it is an estate depending upon 13 lives, and may terminate with them.

There is another view of this part of the case which is perhaps more satisfactory and conclusive. The absolute term of 20 years and 10 days, determinable by the ceasing of the minorities, is in no respect different from such a limitation determinable upon lives as to its possible duration. In either view it may continue the whole of the limited period—the 20 years and 10 days. The minorities may hot cease till the youngest grand-child arrives at- the age of twenty-one, in the one case, and the lives may not expire till that period in the other ; it may ; therefore, be an absolute term for twenty years and ten days in either case, and if the principle is established, thfere may be ah absolute term for 21 years, as the youngest child may not be a day old at the creation of the estate. To test such a limitation by the statute, we will take an example. Suppose an estate to A, for 21 years, and during the lives of B. and C. then in being, and remainder over; now the utmost limit of the statute is the two lives: “ 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.” We have now a limitation of twenty-one years, and during the lives of the two persons in being. Suppose these lives should drop at the end of ten years, is not the authority of the statute to suspend the ownership exhausted ? Two specified lives in being, and upon whom in one aspect the *126 estate depended have expired, the precise measure given; and yet eleven years remain unexpired of the estate, and upon the construction contended for, may still continue, and the ownership be suspended for the remaining eleven years. Again, an estate to A. for the lives of B. and C., or twenty-one years, which of these two limitations shall control according to the statute, the two lives or the twenty-one years? According to the construction contended for, if the two lives should fall in at the expiration of ten years, the estate would continue for eleven more, which to my conception is in the teeth of the statute. Again, let us take the case as presented upon this will. An estate to J. K. and H., trustees to hold in trust for twenty years and ten days, determinable upon the ceasing of the minorities of the thirteen infant children and grand-children, then over to the remainder men. At the end of ten years, two of the thirteen lives fall in. Have not two lives in being at the creation of the estate, upon which with eleven others the limitation of it depended, expired ? two specified lives and yet half the trust term remains and may continue ten years longer. It seems to me, after the most deliberate consideration of this part of the case, and I have examined it with a distrust of the soundness of my views, differing, as I am obliged to do from such high authority, it seems impossible to avoid or explain away the repugnance between the limitation of the term and the rule of the statute; testing it in any possible way of which it will admit, still it may exceed the perpetuity there allowed, the duration of two lives being at its creation, and then the principle before adverted to, and stated upon the authorities, applies that if a limitation be too remote in its commencement, it is void, and cannot be helped by a subsequent event, or by any modification or restriction in the execution of it. In the language of Chancellor Kent, the possibility', at its creation, that the event, upon which- it depends, may exceed in point of time the authorized period, is fatal to it. 4 Kent’s Comm. 283. 4 Cruise. 449. 2 Burr. 873.

We shall now recur to the other question growing out of the trust term, and which should now be settled—though in *127 my view not essential to the decision of this case, it is vastly the most important question in it, as it respects the community. Until it is settled by this court, the disposition of estates and family settlements must be made under serious embarrassments. I allude to the question whether the limitation of estates, with a view to suspend the power of alienation, must be upon one or two specified lives in being within the true construction of the 15th or whether this measure may be departed from, and the courts permitted to regulate their judgment in each particular case upon the reason or equity of the statute; in short, whether we shall have a fixed and definite measure of duration, or as many as the courts, in the exercise of their discretion, think fit to establish. The grounds taken in respect to this case are, 1. That the 15th section does not require that the trust term authorized by the 55th § should be limited upon two specified lives-—this is the position of the court below; and 2. That an estate may be limited to depend upon a “ moderate term of years” at common law, within the average duration of a life or lives in being, and that this rule has not been abolished by the statute. The two positions are so connected that they may properly be considered under one view; for if the terms of the statute or measure of duration there given, may be departed from, as contended for, then it would seem necessarily to follow, that a moderate term of years within the reason and spirit of the statute must be allowed: this would be approaching the statutory limit as near as practicable, without adopting its very terms. The first article of the revised statutes concerning “ the creation and division of estates,” does not profess to abolish all the rules relating to them which previously existed at common law: in this respect, it is distinguishable from the articles on “ uses and trusts” and “ of powers.” But where a positive rule of real property is enacted, therein modifying or contradicting a former one, the latter is plainly abrogated, and the rule of the statute the only one in force. Both cannot exist. As it regards future estates, and those in reversion at common law, they are entirely abolished in the article, and pone such are allowed to be created except *128 as there defined. By the 42d §, it is provided that all expectant estates, except such as are enumerated and defined in this article, are abolished. The 8th and 9th § define, estates in expectancy to include all future estates and estates in reversion. The courts must hereafter look exclusively to the rules prescribed in the statute, when called upon to expound the law respecting these estates. Present estates, then as they existed before the revised statutes» are the only estates that were not abolished. They were extensively altered and modified, as is apparent upon a reference to this first article; but as it respects them, it is conceded they may be said still to exist at common law, spfiject to these modifications. Now, as to future estates, they being the creatures of the statute, legally existing only as there enumerated and defined, it would seem to be a difficult .undertaking to maintain that they may be limited so as to suspend the power of alienation in any other mode than that .expressly pointed out by the statute. As to them it cannot well be argued that an estate may be limited for a “ moderate term of years,” as at common law, within the average duration of a life Or lives in being, which rule had not been abolished, because the statute rule, if one exists, and that only must be regarded ; that enters into and helps to definp these estates ; it is one of the most important rules to be observed in the creation of them, and if disregarded, or the estate limited in violation of it, I do not comprehend how its validity can be sustained, Though the difficulty may not be so great in justifying a departure from the statute in respect to present as in the case of future estates as they still exist at common law, it is somewhat enhanced by the above view, because it is reasonably certain but one rule w,as intended to be prescribed for both. No reason can be given for any distinction between them; and besides it has already been decided in the case of Lorillard’s will, 14 Wendell, 265 , that the 15th § applied equally to both; and hence so far as the argument upon this point is concerned, we may consider present as well as future estates mere creatures of the statute, and the only rule prohibiting perpetuities, the one there prescribed.. It. *129 si worthy of remark that this 15th section, as it originally passed, was exclusively applicable to present estates, and was more definite in its language than it now is. It was as follows: “ 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.” Here the legislature did not leave it to construction, how long the ownership could be suspended, having declared it must not extend beyond the termination of the lives. There must be no limitation or condition whatever “ moderate term of years,” average duration of lives, minorities, or any other contingency that may by possibility suspend the ownership beyond the termination of the lives in being. Language could hardly be selected more comprehensive and definite if the legislature had intended to exclude all other measures of duration, and to leave no discretion in the matter to the courts. If the suspension of ownership must end at the termination of the lives, how can the injunction of the statute be obeyed unless the limitation of the inalienable estate depends upon them. Put it upon any other measure, and it may exceed any lives that might have been selected. Though the terms of the present section are not quite so precise, there is a word substituted for those omitted, that clearly shows no alteration could have been designed ; indeed, we know the only alteration intended was the reduction of the lives from an unlimited number to two only. The words now are, “ for a longer period than during the continuance of not more than two lives in being, &c.” One of the counsel for the trustees, in commenting upon this branch of the case, contended the word not was unmeaning, and only proved that the legislature had used bad, grammar; but whether the construction should be the same with or without it, it is most apparent that it gives point and distinctness to the meaning of the legislature; and to me it adds some force to the argument, that they intended in express and positive terms to preclude the limitation of an estate that might by *130 possibility extend the suspension of the power of alienation ¿eyonc¡ two specified lives in being. During the continuanee of not more than two lives, and until the termination of two lives impart the same idea. We may further remark, that the different sections concerning the creation and limitation of estates, universally refer to the statute rule against perpetuities and no other. Thus, the 17th section provides that where a remainder shall be limited on more than two successive estates for life, all, except the two first, shall be void. So in the 19th §, when a remainder shall be created upon any such life estate, that is for the life of a person other than the grantee, and more than two persons shall be named as the persons during whose lives the estate shall continue, it shall take effect upon the death of the two first. The 20th §, a contingent remainder shall not be created on a term of years, unless the nature of the contingency on which it is limited be such that it must vest in interest during the continuance of not more than two lives in being. The 26th §, a fee may be limited on a fee upon a contingency, which, if it should occur, must happen within the period prescribed in this article. So the trusts, to receive rents and profits, and apply them to the use of a person, (the very case under consideration,) are brought within the prohibition against perpetuities by an express reference to the statutory rule prescribed in the first article. No other rule is referred to, and if there should be one at common law not abolished by the 15th it could not help out this trust term, because it is emphatically a creature of the statute, being under the control of the trust which exists only by force of the statute. Thus it is seen that the legislature, in the modification and limitation of estates', have acted throughout with a single view to the rule established by themselves prohibiting perpetuities. In the consideration of this question upon the statute, the observation must occur to every one, that if the legislature had intended to permit the application of any other rule or measure of time in the limitation of estates, they would have prescribed it. The mind of that body, having been brought to act directly upon the subject, and impressed with the *131 importance of changing the law as it then existed, and having acted by fixing a measure or time of suspension, it is to me difficult to resist the inference that they intended to leave nothing unsettled, or open to doubt and discussion. There is nothing in the subject itself, involving any intrinsic difficulties, or that could prevent a complete settlement by positive law, or that could recommend its reference to the determination of courts. On the contrary, the history of the law of perpetuities much of which was before them in the notes of the revisers, was calculated to admonish them of the importance of definite and permanent rules. It had been a subject of discussion, and of various and contradictory judicial legislation, for more than two centuries ; even as late as 1827 the point was most zealously contested and claimed to be unsettled in the court whence we have derived the rule, by eminent counsel, whether 21 years after lives in being were admissible to suspend alienation except in case of infancy. Chancellor Kent, in the 4th volume of his commentaries, p. 262, presents a concise but comprehensive history of executory devises, and of the leading cases from the earliest times to the present day, and he seems to exult at the close of it as if weary with their diversity and contradiction in the following observation : “ and thus,” he says, “ notwithstanding the constant dread of perpetuities, and the jealousy of executory devises, as being an irregular and limited species of entail, a sense of the convenience of such limitations in family settlements, has enabled them after a struggle of nearly two centuries, to come triumphantly out of the contest.” If the learned commentator had been aware of the construction" of the new statute upon the point contended for, and could have anticipated a confirmation of it by this court, the exultation which he very naturally indulged at the permanent settlement of the law, at the end of two centuries, must have given place to the opposite sentiment, despair; for scarcely had the old rule became thus settled beyond doubt or litigation, when it was abrogated by the statute; and if courts may depart from the precise measure of lime substituted, and fix other standards in the exercise of their discretion, a new subject *132 of contention has just arisen in respect to the rule which it may not take centuries to settle, but which I will venture to predict this generation must leave as an inheritance to those who will succeed them. If limitations are to be sustained because the court may pronounce them within the equity of the statute, or within the average duration of two ordinary lives in being, it is obvious cases will be constantly occurring like the one in question, and pressed upon the courts as coming within these principles! The settlement of fixed and permanent general rules must be impracticable, the entire subject not being under the absolute control of the courts as formerly. The spirit of the statute at least must be regarded, and a system of law must spring up under it by successive adjudications founded upon the notion of equities, and each case necessarily turning upon its own peculiar circumstances. We shall have neither the common law nor statute rule, but rules derived by construction from the spirit of the statute. If the limitation in this case be sustained, we determine that twenty-one years is not too long a suspension xvithin the statute, because that is the principle involved in the decision. The next case may press upon us twenty-five, thirty, thirty-five, or forty years, or any other number, supposed to come within the equity of the statute or the average duration of two lives; and suppose we should finally determine, by reference to the tables of mortality, that forty years was within the average duration of two good lives, and that no limitation should exceed it; must not the court, to be consistent, sustain a limitation depending upon ten lives, if they were taken at such advanced ages, that by the tables of mortality the whole of them would not exceed the duration of two ordinary lives? If the one measure is within the equity of the statute, why is not the other ? The tables would prove that the average period of the duration of all of them would not exceed forty years, perhaps not the twenty-one we are now called upon to establish. But without pursuing the enquiry any farther, after the best and fullest consideration I have been able to bestow upon this point of the case, I cannot doubt but that if any other *133 modification of the common law rule than the one contained in the 15th § had been believed necessary or useful in the settlement of estates, it would have been incorporated in it. The legislature could themselves have fixed the “moderate term of years,” or the period of time deemed equivalent to the two lives in being, or any other absolute period, much more satisfactorily than courts of justice. They possessed all the means of information within the power of the court to settle understandingly the proper limit, and the measure by which it might be attained, and then certainty and stability would thus have been given to the law.

From the foregoing view of the questions involved in the trust term, I have arrived at the following results, which it may be proper now to bring within more condensed limits: 1. That the trust to pay annuities is a valid trust within the 3d subdivision of the 55th section, and may sustain in the trustees the devise of the legal estate during the term under the 60th section. II. That all the other trusts are either invalid or are so limited that they cannot sustain it for that period of time: they are future or contingent, or trusts that are immediately executed and cease. III. That the estate thus vested in the trustees is inalienable during the existence of the trust term : 1. By the operation of the 63d and 65th sections, it being a trust within the 3d subdivision of the 55th section ; or 2. Assuming the trust to be within the second subdivision, the term is equally inalienable, as the trustees cannot convey the legal estate in violation of the 65th section, and therefore, though the annuitants may assign their interest, the whole or absolute interest is inalienable; and IV. That the trust term is void, 1. Because it is an estate limited to depend upon thirteen lives, as well as upon minorities, and may postpone the power of alienation for a longer period than is allowed by law, 15th section; 2. That if it should be considered properly a term for 20 years and 10 days, determinable upon thirteen minorities, it is still void, because power of alienation may be suspended for more than two lives of the thirteen individuals upon which it depends; and 3. Because the trust term is not limited to depend upon one or two specified lives in be *134 ing, within the true construction of the 15th section—the only measure for the suspension of the power of alienation, since the adoption of the revised statutes, being a life or lives.

What then becomes of the remainders ? They cannot vest in possession under the will, because that expressly limits them upon the ceasing of the thirteen minorities. By the 17th clause the testator declares, “ I have also determined that this trust shall continue, and that the final division of my estate shall not take place, until the youngest of my children and grand-children living at the date of this my will, and attaining the age of 21 years, shall attain that age.” The 37th clause also expressly limits the distribution to this period i f time, and until then the trustees have no authority under the power conferred to make the division. This was the view of the chancellor, upon the supposition that the trust term should be considered invalid. He directed the surplus rents and profits, the accumulation being void, to be paid to the persons presumptively entitled to the next eventual estate under the 46th sectil n of the statute, 1 R. S. 726. But this was directed upon the ground that the trust estate was legal and valid and continued under the management of the trustees. By that section, when in consequence of a valid limitation of an estate, there shall be a suspense of the power of alienation, and during the continuance of it the rents and profits are undisposed of, they shall belong to the persons entitled to the next estate. This applies only to the case where there is a valid suspense of the ownership and no disposition is made of rents for the intermediate time. Were it not for this section, which changed the common law rule, it is conceded those surplus rents, on account of the void accumulation, must have gone to the heirs during the term. When there is no valid suspense of the power of alienation by the trust estate, it is obvious the 46th section does not apply. The limitation being illegal and the trust term void, the estate does not remain in the lands of the trustees, but must descend to the heirs at law who are immediately vested in possession and entitled to the rents and profits.

We shall next inquire whether the remainders are valid, so as to divest the heirs of the estate on the execution of *135 the power by the trustees in pursuance of the 37th and 44th clauses ot the will. The power to make distribution is a special power or trust, as defined by the 78th and 95th sections of the article on powers. A special power exists, 1. Where the person, or class of persons to whom the disposition of lands under the power is to be made are designated, and 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 ; and a special power in trust is when the disposition which it authorizes is limited to be made to any person or class of persons other than the grantees of such power. Here the class of persons to whom the conveyance is to be made by the trustees is designated, and to some of them the estate is' to be less than a fee, and it is a disposition limited to be made to persons other than the grantees of the power. By the 107th section, every power is made a lien or charge upon the land which it embraces, as against creditors and bona fide purchasers, from the time the instrument containing the power is recorded, and against all other persons from the time it takes effect, § 128. The period during which the absolute power of alienation may be suspended by means of a power, shall be computed from the time of its creation. This section recognizes the principle that the suspension of ownership cannot be postponed for a longer time, by means of a power, than is authorized bylaw; and even without it, the 15th section is sufficiently comprehensive to have embraced the case, because the terms there used, “ by any limitation or condition whatever,” would reach any attempt to create a perpetuity through a limitation under a power. We have seen that the power is a lien upon the land, from its creation till the execution of it at the termination of the minorities, or in other words till the termination of the trust term, which, according to the views before stated, must be deemed void, as suspending the power of alienation longer than is allowed by law; and it is an obvious conclusion, that if during all this time these life remainders are inalienable, the suspension of ownership is as objectionable in this respect as the trust term, and must be declared void. It is a suspension de *136 pending upon the same events, and must necessarily continue for sanie period of time.

Are these remainders alienable before the execution of the power of distribution by the trustees ? The statute declares such power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed. Could the absolute interest in any one of these life estates be conveyed during the term ? Suppose Augustus should sell and convey the interest in his share to A., what estate would pass ? Not the absolute interest, because upon the distribution, by the trustees under the will, this whole share must be conveyed to Augustus, and to him alone, if living; if dead, to his heirs. It seems clear then to me, that the purchaser could not acquire the absolute estate ih remainder belonging to either of the seven children and two grand-children, in the eight and a half twelfths of the estate, within the meaning of the 14th section. But it may be said that the first remainders are vested, and may take effect immediately in possession upon the avoidance of the precedent or trust estate. We have already seen that they must be valid, if at all, at their creation, in other words, at the publication of the will; for if not, they cannot become valid by the happening of subsequent events. This is the settled rule of the common law ; it is also now the rule of the statute in respect to these remainders. They are future estates, and by the 14th section, 1 R. S. 723, every future estate shall be void in its creation which shall suspend the power of alienation for a longer period than prescribed in this article. We have also seen that future estates are the creatures of the statute, and must stand or fall by the rules there prescribed. It is important to this view, in the first place, to ascertain with certainty what the remainders after the trust term are, their nature or character and precise limitation, in order to test their validity by the statute. There are three descriptions of them, all going to different classes of persons, upon the happening of different events; 1. The remainders for life, with the power to devise; these are the first estates in remainder, and are limited to the seven children and two grand-children; 2. *137 The remainders to the descendants or heirs of these, should any of them die before the expiration of the trust term! these may be called the substituted remainders ; and 3. The estates in remainder to those to whom the seven children and two grand-children, or person^ taking the life estates, may elect to devise, in case they survive the trust term or execution of the power by the trustees; these may be called the ultimate remainders, and depend upon the 44th clause of the will. Now I may concede the life estates to the seven children and two grand-children are vested within the statute or common law definition of such estates. I speak without regard to the condition of good moral character, upon which the court below pronounced them contingent. By the statute, § 13, a remainder is vested when there is a person in being who would have an immediate right to the possession of lands, upon the ceasing of the intermediate or precedent estate. These seven children and two grandchildren are in being, and on the expiration of the trust term, which is the precedent estate, have an immediate right to the possession. A vested or executed remainder, at common law, is one where a present interest passes to the party to be enjoyed in future, and by which the estate is invariably fixed to remain in a designated person after the particular estate is spent; as an estate to A. for 20 years, remainder to B. in fee ; here B. has a vested remainder, which nothing can defeat or set aside. True, he may die before the precedent estate terminates; but that only makes the vesting in possession, not in interest, uncertain or contingent. The present capacity of taking effect in possession, if it were to become vacant before the remainder determined, is said universally to distinguish a vested from a contingent remainder. 2 Black. Comm. 169. 4 Cruise, 260. Fearne on Conting. Rem. 216. 2 Cruise, 270. Here, it is apparent, nothing can preveht the life estates from vesting in possession, but the death of the remainder-men before the termination of the trust or precedent estate. The other two remainders are clearly contingent, as will be seen on a brief examination. They are contingent, says the statute, § 13, whilst the *138 person to whom, or the event upon which they are limited t0 take effect remains uncertain. According .to Mr. Fearne, there are four kinds of contingent remainders, of which I not*ce ontytwo’ anc* l"ourth classes. The third is where some uncertain event, unconnected with and collateral to the determination of the preceding estate, is by the nature of the limitation to precede the remainder; as if a lease be made to A. for life, remainder to B. for life, and if B. die before A., remainder to C. Here the event of B.’s dying before A. does not affect the precedent estate, but the event must precede and give effect to C.’s remainder. The event is of course uncertain ; B. may or may not die before A. ; and the remainder depending upon it, must therefore be contingent. In the language of the statute, the event upon which they (the remainders) are limited to take effect remains uncertain. Now the substituted remainders depend upon the event of the death of the seven children and two grand-children, or some of them, during the existence of the trust term or precedent estate. This must precede and give effect to the remainders to their descendants, under the 37th clause of the will, like as the death of B. Before A. gave effect to C.’s remainders in. the example stated. The death of the seven children and two- grand-children is a certain event; but death at or within a particular time is uncertain. The death therefore of all or any of them, before the ceasing of the trust term, is uncertain ; it may or it may not happen, and the remainder depending on this event must therefore be contingent. As to the remainders under the execution of the power to devise, given to the persons to whom the life estates are to be conveyed by the trustees, these are the ultimate remainders. By the statute, the remainder is contingent while the person to whom it is limited to take effect is uncertain, as well as when the event is uncertain. The fourth class of Mr. Fearne is where a remainder is limited to a person not ascertained, or not in being, at the time when such limitation is made ; as an estate to A. for life, remainder to the right heirs of B. Now there can be no heirs of B. till after his death, and that may not happen till after the determination of the precedent estate. There is then no *139 person ascertained or in being, in whom the estate can vest, as the heirs cannot be known till the death ofB., which may or may not happen before the death of A., upon whose life the precedent. estate depends; the remainder is therefore contingent. In the consideration of these remainders I do not intend to overlook a rule of law that appears to be well settled, namely, “ that where a power is given to appoint a remainder among a particular number of persons, or class of persons, who are known and ascertained, with a limitation over to the whole number as tenants in common or otherwise, in default of the, appointment, the remainder is vested subject to be divested by the execution of the power.” Sugden on Powers, 151, and cases there cited. Fearne on Conting. Rem. 227, 233. 4 T. R. 39. 5 Paige 186 . According to this rule the uncertainty, 1. Whether the power would be executed or not by the life remainder-men, assuming they survived the trust term; or 2. The uncertainty of the persons in being who would take upon the execution of the power, as the whole estate may be devised to one of the descendants, according to the 44th clause of the will, would ■ not make the remainder contingent as to those in being at the death of the testator or persons then ascertained: the estate would vest in them subject to be divested on the execution of the power: but as to all the descendants, born after the death of the testator or persons not ascertained at his death, the remainders are contingent and continue so till birth or till ascertained. They are contingent because the persons are not in being, or ascertained, to whom the remainders are limited. All these ultimate remainders then are contingent, except in respect to the three grand-children of Augustus who were living at the death of the testator. They are contingent as respects the descendants or heirs of the other six children and two grand-children and the children of Augustus subsequently born. Being contingent, it is obvious they might continue so throughout the duration of the trust term, because the descendants may never be born, or persons may never be ascertained, the event upon which the vesting of the remainders depends; or they may not be born or be ascertained till after the expiration of the trust *140 term or precedent estate. These are obvious propositions ; and then if right, in the conclusion that the trust term is void on the ground of its being so limited as to suspend the power of alienation longer than two lives in being these contingent remainders which may produce precisely the same effect, for while they are contingent, we have before seen they suspend the ownership, are equally objectionable and void. They are void from their creation, according to the 14th section of the statute. “ 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.” It was said that we should vest these remainders in the children of Augustus living at the death of the testator; but a satisfactory answer is, that it would in effect be an exclusion of all children subsequently born, because as to them the remainders are void. This would be unjust, and besides a palpable violation of the intent of the testator.

But it is said we have still the life estates, vested and conceding all the others to be contingent and x'oid, why not execute these immediately in possession ? I have before shown that the power of the trustees to allot and convey these estates, at the termination of the trust term, rendered the absolute ownership inalienable within the meaning of the 15th section till the execution of the power, and therefore they were as objectionable in their limitation as the trust term itself. But there are to my mind other objections equally conclusive: The trust term is void and gone; the substituted and ultimate remainders are also void and gone; these life estates are the only, ones left that can be sustained under any view. If we should vest these estates on the death of one of these devisees, his power to devise being void, the share would descend not to the heirs at law of the devisee, not to his children, but to those of the testator. As there are eleven heirs, the children of one of the devisees of the life estates would inherit one-eleventh of the share of their parent, the other ten-elevenths passing to the other heirs of the testator. For example, suppose the life estates were now vested in possession and Augustus should die, his children would inherit one-eleventh of his share, and his brothers and sisters *141 and nephews and nieces, as the case might be, would take the residue. If this share was $100,000, his children would inherit about $9000 of it: thus, fora time at least, these children instead of representing their father and inheriting his share according to the will, would receive little more than sufficient to furnish them with the necessaries of life, while the surviving children and grand-children, holding their shares under the will, would receive in addition thereto a large and disproportionate interest. The last survivor would be in possession of about twice the interest intended by the testator, and more than that proportion over any of the descendants of his brothers and sisters. I can never consent to modify and maintain last wills and testaments, where the intent of the testator is thus palpably defeated, and where great injustice must be the consequence to a portion of his descendants. True, the testator intended the seven children and two grand-children should enjoy the shares to be allotted to them for life, but not in connection with the consequences that must follow the execution of such an intent by reason of the illegal remainders, which have been declared void. So much of the will is broken up as illegal, and the parts are so connected with these life estates, if deemed valid, it is impossible to separate them without disregarding the direction of the testator. If then right in the conclusion that the limitation of the trust term is too remote, as tending to a perpetuity in violation of the 15th section of the statute, the limitation of these remainders tending to a like perpetuity, being inalienable for the same length of time, are equally objectionable and void. The entire estate must therefore descend to the heirs at law. and they cannot be subsequently divested on the execution of the power by the trustees.

Should the court concur with me in the conclusion at which I have arrived, it will become necessary to inquire into its effect upon the annuities, legacies and portions, and to shape the decree which shall finally be made accordingly. As to those heirs to whom beneficial interests have been given under the will, in the shape of legacies or annuities, which are consistent with the law and valid, they must be *142 put to their election. They cannot be permitted to take under and also in hostility to the will, unless such is the clear intent of the testator, about which there can be no doubt in this case. Thé first case upon this question is Noyes v. Mordaunt, 2 Vern. 581. There the testator devised to his daughter A. lands in fee simple, and to his daughter B. lands settled upon him in tail: and it was decided that if A. should claim a share of the entailed estate under the settlement, as this devise was void, she must give up the land in fee simple ; for, it was said, the testator having disposed of his whole estate among his children, what he gave to them was upon the implied condition that they should release,to each other. This principle has been recognized and applied as sound law, ever since the decision, which was in the year 1706. In the case of Whisler v. Webster, 2 Ves. 367, the testator, before his death, transferred to a friend leasehold property and moneys in trust to raise £3000, which after his death was to be paid to his children, in such manner as he should appoint by his last will, and in default of such appointment, among them equally. By bis last will he gave several legacies to his children out of other property, and under the above reserved power of appointment gave several legacies to his grand-children. These were void, as by the terms of the settlement the appointment could only be made to his children, and in default, the money was to be paid among them equally. Some of the children filed their bill to set aside the legacies to the grand-children. They were conceded to be void, and the only question in the case was whether the children were bound to elect. The master of the rolls considered it a clear case of election, and observed that the cases of Noyes v. Mordaunt, and Streetfield v. Streetfield had established this broad principle, that no man shall claim any benefit under a will, without conforming as far as he was able, and giving effect to every thing contained in it whereby any disposition is made, showing an intention that such a thing shall take place, without regard to the circumstance whether the testator had any knowledge of the extent of his power or not. He concluded by making the children elect whether they would *143 take their legacies under the will, or give them up and take under the settlement. In 13 Ves. 209, after Mr. Thellus son’s will had been before the house of lords and the trusts in it sustained, it came again before the chancellor upon a question of election. The testator hatT purchased real property after the publication of his will, which of course did not pass under it, and descended to the heir at law. But he had contemplated such purchase before its execution, and provided in it that all such contracts should be completed by his trustees, with the conveyances taken to themselves, and that they should stand seised of the estates for the benefit of the several trusts in the will. The heir at law had a legacy and some other beneficial interests devised to him, and the question presented was, if he was bound to elect whether he would take under the will or as heir at law. The lord chancellor said that the jurisdiction exercised by this court compelling election may be thus described; a person shall not claim an interest under an instrument without giving full effect to that instrument as far as he can. If therefore a testator intended to dispose of his property, and making all his arrangements under the impression that he has the power to dispose of all that is the subject of the will, mixes in his disposition property that belongs to another person, or property as to which another person has a right to defeat his disposition, giving to that person an interest by his will, that person shall not be permitted to defeat the disposition where it is in his power, and yet take under the will. The reason is the implied condition—he shall not take both; the consequence follows, he says there must be an election. Again, he observes, this is a case of a man having a clear right to dispose by will of both his real and personal estate ; but his disposition fails as to these real estates by his ignorance of the distinction that a will of a subsequent date was necessary. That Mr. Thellusson, the heir, takes the estates, therefore, as if his father had not made a will; but he says, my opinion is he cannot also take what is given to him by the will. See also 2 Ves. & Beame, 187. Gilb. Eq. R. 15. Sugden on Vendors, 170 and note. 1 Swanst. 402, note. *144 2 Maddox, 47, 50. Upon these principles and cases, it is very c]ear that the heirs who will inherit the estate upon the will being declared void, and to whom beneficial interests have keen bequeathed, must be put to their election.

By Mr. Justice Bronson.

The rule that the intent of the testator is to govern in the construction of wills has no necessary connection with the inquiry whether the devise or bequest is consistent with the rules of law. When we have ascertained what particular disposition the testator intended to make of his estate, then, and not before, the question arises whether the will is valid. If the disposition actually made is not inconsistent with the rules of law, the will is good and must be carried into effect, whatever the testator may have thought about the legality of the act; and on the other hand, if the disposition actually made is contrary to law, whether it happened through design or the want of accurate information, the will is worthless, and we have no choice but to declare it void.

The will may be good in' part and bad in part. Distinct independent provisions, which are in themselves free from objection, will not be invalidated by other separate provisions which are contrary to law. But if the good and the bad are so intermingled that the one cannot be separated from the other, then both must fall together; and where a particular disposition, which would be valid if it stood alone, forms a part of, or depends on a general purpose which is contrary to law, there both will be alike void, and must share a common fate.

In connection with this remark, I will briefly compare the will as it stands, on the decree of the chancellor, with the original disposition made by William James. In doing so, I shall only notice some of the most important particulars in which the intent of the testator has been overthrown by the decree.

The decree declares that the whole annuity of $3000 to Mrs. James, became lapsed by her election to take dower in the real estate. This annuity was given not only for her own support, but for the education and support of the *145 children, and was the only provision made by the testator for minors during the life time of their mother. The directions in the will for making advances and giving marriage portions to the seven children and two grand-childrcn interested in the eight and a half shares, are also declared void. These, with the annuity to Mrs. James, constitute the only provisions made by the testator for most of his children during the life time of their mother; and if other parts of the will had not also been overturned, the children would at this moment have been utterly destitute of the means of support, unless they were derived from some other source than the estate of their father.

But there are other and more important points in which the intent of the testator has been frustrated. He directed the estate to be divided into twelve equal parts, and then disposed of the whole. As to three and a .half of those shares, the will is declared void by the decree.

The testator in effect directed an accumulation of the rents and profits of the estate during the continuance of the trust. Under this provision it is but reasonable to suppose that the estate, subject to all the probable charges on rents and profits, would have doubled in value before the final distribution. The whole provision for accumulation is declared void. This part of the decree alone defeats the intent of the testator to the extent of one half the probable value of the estate at the end of the trust term.

As to eight and a half shares of the annual rents and profits, the decree declares that they belong to the seven chilren and two grand-children as the persons presumptively entitled to the next eventual estates in eight and a half shares on the final distribution of the property. The effect of this part of the decree is to give this portion of the rents and profits to the nine children and grand-children immediately ; whereas, by the will, they would receive nothing until the end of the term, and if they did not live until that time, they could never take any portion of the rents and profits—they were to go to others.

Enough has been said to show that the will of the testator has undergone a great change in passing through the *146 court of chancery. I shall only notice one other particular in which the intent of the testator has failed. If either of the nine beneficiaries die during the term, the will directs the trustees to convey his or her share to other persons. The decree declares all the substituted estates in remainder void. To arrive at the effect of this part of the decree, let it be supposed that Augustus James, one of the beneficiaries, dies during the term. The estate devised to the trustees, after paying debts, was "valued at about twelve hundred thousand dollars. Without any advance in value, the share which would go to the family of Augustus in the event of his death during the term, would be one hundred thousand dollars. In consequence of declaring the substituted remainders void, this share will go, not to the family of Augustus, but to the family of the testator. As Mr. James left nine children and grand-children .representing two others, the share must be divided into eleven parts, and the family of Augustus, instead of receiving one hundred thousand dollars as the testator directed, will get only one-eleventh part of that sum, or a fraction over nine thousand dollars. And if, upon the true construction of the will the three and a half shares were to be divided among the same persons who are to take the eight and a half parts, then the family of Augustus, in the event of his death before the end of the term, should receive more than one hundred and forty thousand dollars. But under the decree, they will only get a fraction over nine thousand dollars, or less than one fifteenth part of what they would take under the will. The same consequences must follow in relation to any other of the nine beneficiaries who may die during the term-

If the law has rendered void so large a portion of the trust which the testator attempted to create, it is well worthy of consideration whether the residue can be sustained. But in the view which I have taken of the case, it will be unnecessary to pass upon that question.

I shall now examine the will as it came from the hand of the testator, for the purpose of ascertaining whether the whole or any part of it can be carried into effect consistently with the. rules of law.

*147 The testator, after providing for his wife, devised all the 1 ° residue of his estate to trustees for a period of about twenty years, in trust to receive the rents and profits, and from them to make certain payments and advances; and at or near the end of the term to make partition of the- estate among the designated objects of his bounty. The questions which lie at the foundation of the whole case are,

First. Whether the devise to the trustees is valid, so as to vest the estate in them ; and

Second. Whether any part of the the will can be carried into effect under the doctrine of powers.

Both of these inquiries depend principally on the true construction of the second title of the act concerning the acquisition, enjoyment and transmission of property. 1 R. S. 721, 738. This statute has made great, and, in some respects radical changes, in the law of real property, and-very little has yet been done by way of giving a judicial interpretation to its provisions. Whether it was the dictate of a wise public policy to make so great an inroad upon settled principles, as was effected by this enactment, is not my province to determine. In this place 1 shall neither praise nor condemn the late revision of the laws. It is enough that they have passed through all the forms prescribed by the constitution, and furnish the rule of decision to this and all other cases falling within their influence. Like other statutes, they must be so construed as to carry into effect the intent of the law makers ; and we are not at liberty to turn aside from the path where they lead, for the purpose of avoiding consequences which may not correspond with our notions of what is best for the interests of society. If these laws, when fairly expounded in accordance with established principles of. interpretation, are found to operate injuriously in any particular case, the remedy must be applied by the legislature, and not by courts of justice.

First. In considering that branch of the subject which relates to the validity of the devise to the trustees, 1 shall inquire,

*148 I. Whether the trust is valid in relation to the objects or pUVp0Ses for which it was created, and the manner in which is declared :

Whether the power of alienation is suspended during the trust term : and

III. Whether the trust term is limited according to law.

It is important to notice at the outset that all uses and trusts, except as authorized and modified by the statute, are abolished, § 45. Trusts, arising or resulting by implication of law, are for the most part preserved, § 50, 54. But there can no longer be any express trusts except such as are authorized and defined by the statute, and those are all enumerated in the 55th section. To give effect to the statute in the spirit in which it was enacted, we must, as far as practicable, eradicate from our minds all that we have learned in relation to the doctrine of trusts as they existed before the late revision, and read the statute as though the particular kinds of express trusts which it specifies were now for the first time authorized by law. We may resort to the common law for definitions and rules of construction where the statute itself is deficient. But in attempting to ascertain whether any particular trust can now be created, we cannot resort to the common law, for the obvious reason that this light has been extinguished by the legislature. Whether a particular description of trusts is adapted to the wants of the society in which we live, or would prove beneficial to any class of individuals, is a question with which, in this place, we have no concern. We can only read the statute, and give effect to such trusts as it has specially authorized—all others being illegal and void, unless capable of execution in another form, § 58.

All formal or passive trusts are abolished, § 45, 47, 49; and those active trusts which are specially authorized, have undergone some important modifications. With a single exception, § 56, every valid express trust vests the whole estate in the trustee, both at law and in equity, subject only to the execution of the trust; and the beneficiary takes no estate or interest in the lands, § 60. Where the trust is expressed in the instrument creating the estate, a sale by *149 the trustee in contravention of the trust is absolutely void, § 65; and where the trust is for the receipt of the rents and profits of lands, the cestui que trust cannot assign or in any manner dispose of his interest, § 63. If the testator has created an express trust not enumerated in the 55th section, it is either absolutely void, as being contrary to law, or may be carried into effect as a power in trust: but in either case no estate vests in the trustees, and the lands descend to the heirs at law, § 58, 59.

Courts of equity often regard things agreed or ordered to be done as actually performed ; and as the testator has in effect directed all his personal to be converted into real property, we may regard the conversion as actually made for all the purposes of passing upon the validity of the trust.

I. Was this trust valid in relation to the objects or purposes for which it was created, and the manner in which it was declared ?

1. One of the declared objects of the trust was the payment of the debts of the testator. The first subdivision of the 55th section authorizes a trust “ to sell lands for the benefit of creditors.” The testator has not attempted to create such a trust as the statute authorizes. That is .a trust to sell lands—a trust for alienation ; but the trust in the will is of the opposite character; it is a trust to tie up the estate and prohibit all alienation during the term. The debts are to be paid not from the sales, but from the rents and profits of lands devised to the trustees. It cannot be maintained that this was such an express trust as would vest the estate in the trustees.

2. Another and an important object of the trust was to confer on the trustees the power of making partition and conveyances of the estate at or near the end of the term. It has not been pretended that this was a valid trust within the 55th section. Whether it can be executed as a power in trust will be considered hereafter. The provisions in the 36th clause of the will for conveying $50,000, in value of the estate to the children of Augustus James, and $20,000, each to Anna McBride James and Lydia James, depend on the same principle as the power to make partition. These *150 portions are to be carved out of the estate at or near the end 0f term¡ anc| are }n effect only a part of the general distribution which the trustees are directed to make. To the same class of trusts may also be referred the advances which, by the 31st and 32d clauses of the will, are directed to be made to sons and grandsons, on establishing themselves in business, or engaging in any occupation requiring the employment of capital and the marriage portions directed to be paid by the 33d clause of the will. Taking these clauses in connection with the 35th, it will be seen that they only provide in another form for the ultimate partition of the trust estate. They are advances or loans at compound interest in anticipation of the final distribution, and as such they are to be taken into the account, a.nd deducted from the respective shares of the persons to whom the advances may be made.

There is some uncertainty about the persons who may be entitled to advances under the 31st and 32d clauses, but 1 think none are included but those who may take on the final partition. It is expressly provided, that “ the advances to any one individual shall not in the whole exceed the fourth part of the probable amount to which such individual will be entitled upon the ultimate division of my estate.” This plainly evinces the intention of the testator to exclude all his sons and grandsons who were not to share in the final allotment of the estate. There is still some doubt about the persons who may claim advances, and there is room for question whether these provisions are not void for uncertainty. But I shall not examine that question. Assuming that advances may be made to some of the persons presumptively entitled to share in the ultimate distribution of the estate—and very few of them can in any sense be said to have “ attained the age of manhood” during- the trust term,—still if the advances only constitute a part'of the final partition, they are not express trusts within the 55th section of the statute, and consequently will not carry the estate to the trustees.

There is another remark applicable to- the advances and marriage portions. They are future and contingent trusts *151 which may never be called into exercise. If they are valid as express trusts, they can vest no present interest in the trustees.

3. There are several other future and contingent trusts. By the 29th clause of the will, the trustees are directed to make suitable provision for the education and support of the testator’s minor children, in the event of the death of their mother during the term. The event upon which this trust is to be called into exercise is not only uncertain, but the cestuis que trust are all to share in the final division of the estate, and all payments on their account would be charged against them under the 35th clause of the will. By the 30th clause of the will, the trustees are directed in certain events to make provision for widows and children. These are also contingent trusts which may never be called into action; and so far as they relate to any of the grandchildren of the testator, Who may be entitled to share in the ultimate partition of the estate, they also fall within the 35th clause of the will. The provision in the 33d clause of the will, for the support and promotion of the welfare of the daughters of the testator and of his grand-daughter Mary Ann King, in case they shall marry and afterwards need assistance, may never become an active trust in relation to any of the beneficiaries; and if it should, all the advances which they might receive would be taken into the account on the final partition.

If any contingent provision can be valid as an express trust, within the 55th section, it cannot operate to vest the estate in the trustees until the happening of the event which is to call the trust into active exercise. The trustee cannot take the legal estate in the lands so long as it is uncertain whether there ever will be a cestui que trust to demand the rents and profits. If the event contemplated by the donor should never happen, there would be no person to enforce the performance of the trust, § 60; and the trustee would take the rents and profits for his own benefit. If the testator has not created some present active trust, the estate has not vested in the trustees, but has descended to the heirs at law.

*152 4. The ground principally relied on in support of the trust is the direction for paying legacies and annuities. There can be no question that a valid trust to pay legacies and charges on land may be created under the second subdivision of the 55th section. It expressly authorizes a trust “ to sell, mortgage or lease lands for the bonefit of legatees, or for the purpose of satisfying any charge thereon but I think the testator has not created, and that he did not intend to create a trust under this provision. He certainly has not in terms conferred any power to sell, mortgage or lease lands for any purpose; but he has in terms authorized the trustees to receive the rents and profits of lands, which is a trust falling under either the 3d or 4th subdivision of the section. Trusts under the second subdivision, like those under the first, are trusts for the alienation of the estate; but the trust which the testator had in view was one of an entirely different character—one .which should tie up the estate. He therefore by express words created a trust to receive rents and profits—a trust which, if properly declared, suspends the power of alienation until the purposes for which it was created "have been accomplished, § 60, 63, 65.

There may be some difficulty in ascertaining why the word lease was inserted in the second subdivision, and if we attach to it all the consequences which may be deduced from the common law doctrine in relation to the power of making leases, it will include the right to take rents and profits. But that consequence will not follow in this case, for the reason that it would be against the manifest intent of the legislature ; and it is one of the first and most important rules of interpretation, that a statute shall be so construed as to carry into effect the intent of the law-makers. It has already been remarked that all express trusts, save such as are particularly enumerated and defined in the statute, are abolished. This subdivision does not in terms authorize a trust to receive rents and profits, and if we allow such a trust to be built upon it, we shall permit that to be done which the legislature has forbidden. That it was not intended that trusts under this subdivision should work any suspense whatever of the power of alienation, may be in *153 ferred from the fact that they are not in terms subjected to the prohibition against perpetuities, while the two classes of trusts which may suspend alienation are by express words subjected to the rules prescribed in the first article. This caution on the part of the legislature, in repeating the prohibition against perpetuities as often as a trust to receive rents and profits was mentioned, proves most satisfactorily that it was not intended to authorize such a trust under the Second subdivision.

The first subdivision authorizes a trust “ to sell lands for the benefit of creditors.” This is a trust for alienation, and it would have been absurd to subject it to a provision against perpetuities. The second subdivision is of the same character. It authorizes a trust to “ sell, mortgage or lease lands for the benefit of legatees, or for the purpose of satisfying any charge thereon.” A mortgage is one mode of aliening the estate or a portion of it equal in value to the mortgage debt. In this case as well as where an absolute fee is transferred, the trust is at an end the moment the conveyance is executed, so far as relates to any power over the estate. The trustee has no further office to perform but that of making the proper application of the money. There is no suspense of the power of alienation, and it would therefore be idle to provide any safeguard against perpetuity. Was the word lease in this connection used for the purpose of authorizing a trust of a different character l I think not. And we may here very fitly apply the maxim, noscilur a sociis, and hold that a trust “ to sell, mortgage or lease lands,” is á trust for the alienation of the estate, or some interest in it, and that it means nothing but alienation. If there' is any possible way in which the power to lease can be exercised without suspending alienation, effect can be given to every word in the subdivision without contravening the manifest intent of the legislature. It is a power to make leases for the benefit of legatees, and I see no objection to demising the land directly to the legatee at a nominal rent for a period long enough to satisfy the legacy: or in the case of a charge on the land, leasing it directly to the person entitled *154 to the debt for a term which will satisfy the charge. It may a]SOf j think, be leased to a third person, reserving the rent to the legatee'or- person having the charge. I am aware of the rule of the common law that a rent cannot be reserved on a feoffment, gift or lease, to any person but the feoffor, donor or lessor, and that it cannot be reserved to a stranger. This rule was based on the doctrine that rent was a return or retribution for the use of the land, and consequently could only be reserved to the person from whom the land passed. There was nothing in the nature of the case which rendered it improper that the rent should be reserved to a stranger to the conveyance, if the parties so agreed. The statute authorizes a lease for the benefit of legatees, and persons having a charge, and I see no reason why the rent may not be so reserved that it will go directly to the persons beneficially interested in its payment, instead of first passing .through the hands of the trustee. By inserting apt covenants and conditions in the lease, payment of the rent may be effectually secured. Then whether the trustee sell the whole estate as by a deed in fee, or only a part of it, as by a mortgage or lease, it is in every aspect a trust for alienation which does not tie up the estate. When once the alienation is made, the power of the trustee over the land is at an end. All that remains of his trust is a proper application of the money, where he has either sold or mortgaged. The land itself is as much in the market as though a trust had never existed. If a lease has been executed, the tenant can sell his term, the person to whom the rent is reserved may sell his interest, and the reversion or remainder, as the case may be, can be aliened by the person in whom it is vested.

There is also another mode in which the power to lease lands may be exercised without tying up the estate. The trustee may sell a term in the land for a gross sum to be paid on the execution of the lease. Although this is not the usual way of executing such a power, it is enough that the thing may be accomplished in that form.. If the legislature did not intend that the power to lease should suspend alienation, then if there be any possible form in which the power *155 may be exercised without working that consequence, we are, I think, bound to restrict it to that particular mode of execution. In this way we shall give effect to the will of the lawmakers, and save those who devised the new system of uses and trusts from the imputation of wanting skill to accomplish the end which they had in view; we shall moreover save the law itself from the reproach of containing inconsistent and contradictory provisions.

I conclude therefore that a trust cannot be created under the second subdivision, which shall necessarily suspend the power of alienation for any period whatever. It is a trust to sell land or some interest in it. The trustee does not hold for a term, and the property need only remain in his hands until a purchaser can be found who is willing to take it on reasonable terms.

In the closing argument on the part of the trustees, the ground was distinctly taken that trusts under the second subdivision do not suspend the power of alienation—that the authority to lease lands may be so exercised that it will not work that consequence. It was then said that although the trust declared by the testator may be void as to all the other purposes for which it was created, it is still valid under this subdivision, so far as it relates to the payment of legatees and annuitants; and that the trustees may take and hold the estate until those objects are accomplished. I agree that trusts under this subdivision do not suspend alienation; but I cannot yield to the argument that the testator has created such a trust. He not only used the very words which are descriptive of a trust of a different character, but the whole frame of the will plainly manifests his intention that alienation should be suspended until the end of the trust term. In trusts under the first or second subdivisions, there can be no term or prescribed period during which the estate is to remain in the hands of the trustees. They take the land, not to hold, but to alien ; not to receive rents and profits, but to “ sell, mortgage or lease and if they lease, it must be done in some mode which will leave the power of alienation wholly unfettered. The testator evidently acted on the supposition that a trust for any and all purposes might be *156 created under the third subdivision, and he therefore charged debts and legacies, which belong exclusively to trusts under the first and second subdivisions, on the rents and profits of his estate. The directions in the will are the same-in relation to the mode of satisfying debts and legacies as they are in relation to all the other purposes for which the trust was created. The testator clearly did not intend that the trustees should either sell or mortgage any part of his estate, nor did he design that they should lease it in such a way as would leave the land in the market. His purpose was plainly one of a different character. He designed that the trustees should receive rents and profits, and that the estate should remain inalienable until the end of the trust term. We cannot, against the declared intent of the testator, change the character of the trust for the purpose of obviating objections against its validity. It is either good as a trust to receive rents and profits under the third subdivision, or it is void because contrary to law. Those who wish to create trusts must follow the law, or their purpose cannot stand. I do not make this remark from any hostility to trusts, but because the legislature has abolished all express trusts, save those which are specially authorized by the statute.

The next inquiry is whether this trust for legatees, and annuitants can be sustained under the 3d subdivision of the 55th section. That authorizes a trust “ 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.” The trust which the testator has declared is, to receive the rents and profits of lands and pay them over in specified amounts to legatees, annuitants and others. In the case of Coster v. Lorillard, 14 Wendell, 265 , the trust was like the one under consideration, and Chief Justice Savage came to the conclusion that there was a substantial difference between a trust to receive rents and profits and apply them to the use of another, and a trust to receive and pay over. Senators Maison and Young expressed similar opinions; while Mr. Justice Nelson, though with some hesitancy, and senator Tracy took a different view of the question. Although all the members of the court agreed that the trust *157 in that case was void, yet as those who delivered written opinions assigned different reasons for their judgment, it cannot be affirmed that this is a decided question. Still I entertain the belief that a majority of the court acted upon the ground that such a trust, as we are now considering, was invalid.

If, however, this is to be regarded as an open question, I cannot resist the conclusion that a trust to receive and pay over rents and profits, is not authorized by the statute. I think the legislature only intended to sanction a trust under this subdivision where the trustee had a discretion in the application of the money and that an authority to receive and pay over rents and profits is among those passive or formal trusts which were expressly abolished. When we sanction such a trust, we give no force to the word apply. The trustee does not make the application—he exercises no discretion as to the disposition of the money, but leaves that matter wholly to the will of the cestui que trust. The legislature evidently intended to restrict the power of creating trusts, particularly those which suspend alienation, within very narrow limits. An accumulation of the rents and profits of lands is only allowed for the benefit of minors—not for adults of any description, § 55, sub. 4, and § 37. Under the 3d subdivision there may be a trust to receive rents and profits either for minors or adults ; but still it is evident that the legislature had in view a particular class or description of persons who were to be provided for by the trust. They were persons who, for some cause, could not be safely entrusted with the management of their own affairs, and for that reason a trustee was allowed to make the application for them. Although the class of persons are not named in the statute, yet they are sufficiently indicated by the very nature of the trust. The trustee is not only to receive but to apply the money. Minors, improvident and unfortunate sons, and daughters who have married drunkards and spendthrifts,need the protection of some friend or trustee to render them secure in the enjoyment of the bounty intended for their use.¡ They cannot be safely entrusted with the estate itself, nor with the fruits which it yields. If the rents and profits were1' *158 Pa^ over> bounty of the donor would soon find its way into the hands of gamblers and sharpers, or be wasted in dissipation, while the beneficiary was left to suffer hunger anc* want- Although the legislature was opposed to that artificial system which places the legal estate in one, while the beneficial interest is in another, they could not overlook the necessity of allowing a trust for the description of persons which I have mentioned. They, therefore, authorized a trust to receive the rents and profits of lands, and apply them, to the use of another. The trustee is to exercise a fiduciary office—a kind of guardianship in the expenditure of the money. He is not to pay it over and suffer it to flow in the channels where inexperience, improvidence, or vice will carry it; but he is to see that the beneficiary actually enjoys the fruits of the donor’s bounty—that his education, his support and his general welfare are promoted to the full extent of the fund committed to his charge. In short, the trustee is to apply the money to the use of the beneficiary.

If it was intended to authorize a mere formal trust, where the fiduciary was only a conduit to pass the money into the hands of the beneficiary, why was the word apply inserted ? why was it not provided that a trust may be created to receive and pay over ? I cannot believe that the legislature meant to sanction a mere passive trust, when they declared at the very outset that they meant to overthrow the whole system of trusts as it then existed, and only allow them to be created for certain specified purposes. The specified purposes are all either obviously necessary or highly conducive to the interests and conveniences of society. There may be trusts to alien lands or some interest in them for the payment of debts, legacies, and charges. There may also be trusts which suspend alienation where an accumulation is directed for the benefit of minors, or where the trustee is to receive and apply rents and profits. Beyond these the legislature has prohibited all express trusts which carry the estate to the trustee; and I think it quite clear that - a trust to receive and pay over falls within the prohibition. I do not say that we should inquire into the character of the beneficiary for the purpose of deciding on the validity of trusts *159 under the third subdivision : but I do say that the trust cannot be valid unless the trustee is to apply as well as receive the rents and profits. It can make no difference whether the trust extends to all the rents and profits of an estate, or is confined to some specified sum of money. It is not necessary that the trustee should have a discretion as to the amount to be applied—the donor .may settle that for himself. But whether it be a certain or uncertain sum, and whether great or small, the trust will only be valid where the trustee is himself to make the application of the money.

If it were proper in this place to consider that question, it might well be asked, why should a trust be permitted to receive and pay over the profits of real estate ? If the object be to give the fruits of the land to a particular individual, why not give him the land at once and let him take the profits directly, instead of first passing them through the hands of another ? There is no necessity for a trustee in such a case. He exercises no fiduciary office, and serves no purpose but that of aiding frauds and embarrassing estates, by vesting the legal title in one, while the beneficial interest is in another. It is in short a mere formal trust, which answers no better end in relation to the general interests of society, than that of deceiving the unlearned and the unwary, and occupying the courts with legal controversies.

It is worthy of remark that most of the judicial officers who have had occasion to pass upon this provision, seem, in the first instance at least, to have been strongly impressed with the opinion that the legislature did not intend to sanction such a trust as-the testator has declared. In addition to the opinions which have already been noticed, those of the chancellor and the vice-chancellor in the case of Coster v. Lorillard , may also be mentioned. The chancellor remarks that “ the object of the 3d subdivision of the 55th section of the title referred to, when taken in connection with the 63d section, was to enable the owner of property to create a trust therein for the benefit of an unfortunate or improvident child or relative; thereby to secure a support and maintenance for life, or for any shorter period.” He then goes on to remark that such a trust renders the estate inalienable *160 during the term. The vice-chancellor says, “ the great object flle statute in allowing the creation of express trusts for the above purposes undoubtedly is, to enable persons to make pro-' v,s'on by deed or devise for the infirm and helpless, or those laboring under some disability, or who may be unfit to be entrusted with the management of property. Hence the propriety of vesting the trustee in such cases with the legal estate or interest in the lands.”

By confining trusts under the 3d subdivision to those cases where the trustee is himself to apply the fund, we shall, in my opinion, accomplish the precise object which the legislature had in view, and render the system consistent and harmonious. Under the first subdivision a trust may be created to sell lands for the benefit of creditors—under the second a trust to sell, mortgage, or lease lands for the benefit of legatees, or to satisfy any charge thereon. The trustees can alien the land, because that would not be an act in contravention of the trust, § 65. The beneficiary may assign his right, because the trust is for the payment of a sum in gross—the- amount of the debt, legacy, judgment, or other charge as the case may be. There is no necessary suspense of the power of alienation for a single moment. But the 3d and 4th subdivisions provide for trusts to receive rents and profits—trusts which do suspend the power of alienation. As this suspense was in itself regarded as an evil, the legislature not only took care to limit its continuance, but they particularly specified the purposes for which such a trust might be declared, and then it was provided that every valid trust of this description should vest the whole estate in the trustee, § 60 ; that he should not alien in contravention of the trust, § 65; and that the person beneficially interested, should not assign or in any manner dispose of his interest, § 63. We have here a system skilfully adapted to the purpose which the legislature intended to accomplish; the different parts harmonize with each other; the estate is effectually protected against frauds on the part of the trustee ; and the young, the improvident, and the unfortunate persons for whose benefit alone such a trust is allowed, are rendered secure in the enjoyment of the bounty designed for their use. *161 But the moment we say that a valid trust to receive and pay over rents and profits, can be created under the 3d subdivision, we not only revive formal trusts which the legislature intended to abolish, but the harmony of the system is at an end. If a man is absolutely entitled to receive from the trustee a legacy of one thousand dollars or an annual stipend of the same amount, and to dispose of the money as he pleases, what reason can be given why his interest should not be assignable ? If he had not been competent to take proper care of the money, it is not to be presumed that the testator would have directed it paid over—he would rather have charged the trustee with the duty of applying the money to the use of the beneficiary. And again, why should a person entitled to a legacy of one thousand dollars, growing out of a trust under the 2d subdivision, be allowed to assign his interest, when if the same legacy depend on a trust under the 3d subdivision, his interest can in no manner be disposed of? It may be said that he can assign in either case, because it is a trust for the payment of a sum in gross. But I answer, if the legacy depends on a trust for the receipt of rents and profits, the beneficiary cannot assign. It is forbidden by the 63d section. The last clause of that section was not added for the -purpose of qualifying the first; but for more abundant caution, so that no doubt should exist as to the right of the beneficiary to assign where the trusts were under the 1st or 2d subdivision. Those are trusts to raise and pay over money in gross sums ; but under the 2d subdivision, the trust is to receive and apply rents and profits.

There is still another reason why a valid trust to pay legacies cannot be created under the 3d subdivision. Legatees are specially provided for by the second subdivision, and a testator cannot be allowed to select a trust from one specified class and direct its execution in the mode prescribed in relation to trusts of another class. The legislature has authorized trusts to pay debts, legacies, and charges, but it has also prescribed the means by which those trusts shall be executed—-the sale of lands. But for this special authority no trust whatever in relation to debts, le *162 gacies, or charges could be created; and I think it quite clear ^at auth°rity must be strictly pursued,or all will be void. The testator has created a trust to pay debts, not by the sale of lands, as the statute directs, but from rents and profits. That is not a trust authorized by law, and consequently cannot exist, § 45. The debts must be paid—not because the testator has so declared, but because the law requires it. It may be also that some of the legacies are valid, but I think that none of them can be paid under the trusts declared by the testator.

I have before examined the other trusts declared by the testator, and assigned some of the reasons why I think them invalid. But if the views that have been suggested in relation to a trust to receive and pay over rents and profits are correct, there is then another and a fatal objection to every trust which the testator has attempted to create. He has in no case and for no purpose, save that of exchange and reinvestment, authorized the sale or other disposition of a single dollar of the capital of his estate during the term. On the contrary, the capital is to be kept entire until the final distribution, and all the trusts, whether for debts, legacies, annuities, advances, marriage portions or the like, are to be satisfied from rents and profits—and those too are all trusts to receive and pay over. There is no case where the trustees are directed to receive rents and profits and apply them to the use of the beneficiary. If I have not mistaken the law, then upon this ground alone, every trust declared in this will is utterly void.

5. Although the testator did not in terms, yet he did in effect, create a trust for the accumulation of the rents and profits of his estate; and if we look at the magnitude of the estate, and the probable amount of the annual charges on the fund, it cannot be doubted that the estate would at the least be doubled in value by the time assigned for the final distribution. This trust has already been declared void by the chancellor, and upon such satisfactory reasons that the trustees have not deemed it expedient to appeal from that part of the decree. As no attempt has been made to sus *163 tain the provision for accumulation, it cannot be necessary to examine the question.

I shall dismiss this branch of the case with the single remark, that although there were several objects or purposes in the mind of the testator which would have authorized the creation of a valid express trust, yet in my opinion no suck trust has been declared.

II. Is the power of alienation suspended during the trust term ?

In the consideration of this question I shall assume what has just been denied—that the trust is valid in relation to some or all of the purposes for which it was created, and the manner in which it was declared; and then the inquiry is presented, whether it is not subject to objection on the ground that it amounts to a perpetuity.

The article of the statute which relates to the creation and division of estates, has not, like those concerning uses, trusts and powers, abrogated the whole structure of the common law on that particular subject; but it has nevertheless introduced many new provisions which materially modify dhe rules of the common law in relation to the creation and division of estates. We must trace those changes which have been made by the new code, and so construe the different provisions as may be best calculated to attain the end which the legislature had in view.

The case of Coster v. Lorillard has settled that the prohibition against suspending the absolute power of alienation contained in the 15th section of the statute applies as well to present a$ to future estates. “ Such power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed.” § 14. The whole estate is devised to the trustees. They are to manage it, receive the rents and profits, make certain payments and advances during the term, and then to partition the residue among designated individuals. They have no power to sell any part of the estate except for the purpose of making investments in other property or in different places. Clause 27. A power to exchange one piece of property for another, or to sell it for the purpose of investing the proceeds in a different man *164 ner, is not a power to alien the estate within the meaning of the statute. The property newly acquired is as much a part of the estate as was that which was given for the purpose of effecting the exchange or making the new investment. As the question which was made on this subject by the counsel for one of the minors was distinctly abandoned by the counsel for the trustees, I do not think it necessary to pursue the inquiry any farther.

This, then was not a trust for alienation, but one of the opposite character. The predominent purpose of the testator was to preserve entire the capital of his estate until the end of the term. Indeed he intended to accomplish much more by way of accumulations. But it is enough for the present purpose that the testator studiously provided that not a single dollar should be abstracted from the capital until the end of the term. All payments and advances by the trustees, not excepting the debts of the testator, were to be made from the rents and profits of the estate.

The trust was for the receipt of the rents and profits of lands, and was expressed in the instrument creating the estate. The 65th section declares 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.’’ It should also be remembered, the whole legal and equitable estate is vested in the trustees, and that the beneficiaries take no estate or interest in the lands. § 60. To my mind nothing can be more clear than that the estate cannot be aliened during the continuance of the trust term. The trustees who have the whole legal and equitable estate, cannot convey, because it would be an act “ in contravention of the trust.” The consent of the beneficiary would not confer the right to sell. It would still be an act, not in accordance with, but in contravention of the trust. This view alone, disposes, I think, of the whole question. There is no ingenious contrivance by which we can get rid of the difficulty. We must say that the estate is inalienable during the term, pr the statute is nothing but a dead letter.

*165 But if we go beyond the trustees and' inquire into the power of the beneficiaries, the difficulty will be increased. The beneficiaries have no estate or interest in the lands, but only a mere right to enforce the performance of the trust in equity. § 60. How then can they alien 1 They have nothing but a lawsuit to sell, and that can hardly be called a marketable commodity. But this is not all. The 63d section 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.” This provision renders the question almost too plain for discussion. It is in vain to seek after devises which will enable the beneficiaries to sell, when the legislature has said they cannot assign or in any manner dispose of their interest. I have before remarked, that the latter clause of the 63d section does not qualify the first clause; it was added for greater caution, so that no doubt should exist as to the right of a person to assign who was interested in a trust for the payment of a sum in gross. Those are cases under the 1st and 2d subdivisions of the 55th section, where a trust is created to raise a gross sum for the payment of a debt, legacy or charge. They are trusts for the sale of lands—not such a trust as the testator has created, for the receipt of rents and profits. It should also be observed that the last clause of the 63d section does not, like the first, specify a trust “ for the receipt of the rents and profits of land.” As to such a trust the provision is without any qualification—the beneficiary cannot assign.

If I am mistaken in the construction of the 63d section, there is still an insuperable difficulty in the way of any sale by the beneficiaries. Some of them are to receive, not any sum in gross but an indefinite amount, which depends entirely on the discretion of the trustees. But if we look only to the annuities—the ground on which the trustees principally rely—the difficulty still remains. A life annuity is not “ a sum in gross” within the meaning of the statute.

There are, I think, two insuperable objections in the way of any alienation of the estate during the continuance of the trust. First, the trustees who have the whole interest can *166 not sell because it would be an act in contravention of the trust. anc¡ secong¡ the beneficiaries cannot alien, for the reason that they have nothing to sell, and the further reason that the statute has forbidden it. If there could be any doubt on this point, the question was expressly decided in the case of Coster v. Lorillard ; and the maxim, stare decisis ought to govern on the present occasion. Litigation can never be repressed, nor can the rights of property ever be secure, if this court of the last resort departs from its own solemn adjudications.

IIL As the power of alienation is suspended during the continuance of the trust, the next inquiry is whether the trust term is limited according to law.

“ The absolute power of alienation shall not be suspended by any condition or limitation whatever for a longer period than during the continuance of not more than two lives in being at the creation of the estate.” § 15. There is a single exception to the rule, but it does not affect this question. The death of the testator is the time when the estate was created. § 41. The testator, after announcing his purpose of confiding the care and management of his estate to trustees, declares “ that this trust shall continue, and that the final division of my estate shall not take place until the youngest of my children and grand-children living at the date of this my will, and attaining the age of twenty-one years, shall have attained that age.” He had at that time thirteen children and grand-children who were minors, the oldest of whom was his daughter, Mrs. Barker, who was of the age of eighteen years and ten months, and the youngest was his grand-child William. Augustus James, who was eleven months and twenty days old when the testator died. The other minors were of different ages between' one and eighteen years. If William Augustus James lives to attain the age of twenty-one, the term will continue twenty years and ten days.

It is said that the limitation of the term is void for .uncertainty—that the period at which it can be ascertained that the term has ended may overrun the period at which it may in fact terminate. The objection takes it for granted that *167 the term can only end with the minority of some one of the children and grand-children included in the class; and then it would be true that the term might terminate many years before the fact could be ascertained. For example: Mrs. Barker attained the age of 21 in the year 1835. If all the other minors but William Augustus should die under age, and then he should die just before he attained the age of 21, the trust term would, upon the hypothesis of the counsel, have ended when Mrs. Barker attained her full age, and yet that fact could not be ascertained until seventeen years after-wards on the death of William Augustus. But I think the term may end by death as well as the lapse of time, and that in the example already given, the term did not end when Mrs. Barker attained the age of 21, but will continue to and end on the death of William Augustus. In other words, the term will continue so long as any one of the class shall remain a minor, and will terminate when the last minority shall cease, whether that happen by death or the lapse of time. Upon this construction there is no such uncertainty about the limitation of the term as will render the trust void on that ground.

It has not been contended that this was an absolute term of twenty years and ten days, but it is argued that it may end before that time in case of the death of some or all of the minors before they attain the age of twenty-one years.

The term as limited by the testator and qualified by law, depended in part on time and in part on the continuance of life. It might continue twenty years and ten days if William Augustus, the youngest minor, so long lived, or it might end at any earlier period on the death of all or some portion of the persons named in the class. It might end with the death of all the minors before any of them attained the age of twenty-one years, or it might end after one, two, or more of the number attained the age of twenty-one, by the death of the remaining minors under that age. The term was limited by the continuance of minorities, but as those minorities might cease by death as well as the lapse of time, it necessarily depended in part on the continuance of life. It was a term which could not exceed twenty years and ten *168 days, but which might be determined at any earlier period on the death of one, two, three, or all of the minors. There is no possible form in which the case can be fairly stated without showing that the duration of the term depended on lives, and as there were thirteen minors in the class, it depended on more than two lives. This trust, then might continue and the power of alienation be suspended for a longer period than the statute allows.

I do not perceive that this difficulty can be obviated in any of the modes which were urged upon our consideration. The continuance of the trust does not depend upon the minorities of the youngest child and the youngest grandchild in the class; nor does it depend on the minority of the youngest person in the class. If it did, only two lives in the former case, and one in the latter, would be involved in the term. But the testator has directed that the trust shall continue “ until the youngest of my children and grand-children, living at the date of this my will, and attaining the age of twenty-one years, shall have attained that age.” There is but one class of minors, and the trust is to continue—not until the youngest in the class attains his full age, but until the youngest attaining the age of twenty-one, shall have attained that age. In other words, the term does not depend on the minority of the youngest in the class, but on the minority of the youngest who shall attain the age of twenty-one years. This may be rendered more plain by supposing that William Augustus, the youngest minor, had died immediately after the testator. The term would not have ended with his life, but would continue until the next longest minority should cease. And if the three youngest minors, which will include the youngest child and the youngest grand-child, were both to die the present year, the term would not end with their lives, but would continue until the next longest minority should be determined. The testator evidently intended that the trust should continue so-long as anyone of the class should remain a minor. And if this was his obvious intent, much as we may regret the consequences which must follow, I do not think that we can re-model the term for the purpose of *169 making it conformable to law. If the testator had created several estates, some of which were well limited and others not, the good might stand while the bad must fall. If there be an estate to A. for life, remainder to B. for life, remain-z der to C. for life, with a contingent remainder over in fee, the two first life estates would be good, notwithstanding the invalidity of the life estate of C. But the trustees have only one estate. If that is not well limited, we cannot cut it up into parcels, and declare it good in part and bad for the residue. No precedent for such a proceeding has fallen under my observation. The term is entire. If it suspends the power of alienation for too long a period, it is wholly void.

The argument most strongly urged in support of the term, was, that at the common law there were two rules in relation to perpetuities, and that the absolute power of alienation might be suspended either for a moderate term of years without reference to lives, or for a life or lives in being and twenty-one years and a fraction over; and then it was said that our statute had modified the last rule, without touching that in relation to a moderate term' of years. I shall not go over with the cases referred to by the counsel in support of this doctrine, although I have read them with some attention. At one period of the English common law, the power of alienation was almost wholly unrestrained ; and although perpetuities were afterwards introduced, and finally obtained a partial triumph, they were always regarded with jealousy by the courts, and the judges resorted to the most subtle constructions and artful devises to prevent the tying up of estates. When an estate was given to a man and the heirs of his body, thus creating what was afterwards denominated an estate tail, the courts held that this was an estate upon condition, and that as soon as the donee had any issue born, the condition was performed, and the estate might be aliened. This construction was attacked and overthrown by the statute of Westminster the second, which enacted that the will of the donor should be observed. By this statute the aristo *170 cracy gained, for a time, a complete victory over the judges, and for nearly two centuries afterwards, alienation might be suspended to an almost unlimited extent. The evils which resulted from thus fettering inheritances finally induced the courts to sanction common recoveries—a kind of pious fraud —by which the estate was restored to its alienable quality, and the will of the donor as well as the statute of Westmin. ster were defeated.

Executory devises are an innovation upon the ancient common law, and were not finally sanctioned without a struggle. At first it was held that an executory devise would be void which suspended the power of alienation for more than one life in being. Afterwards two or three lives were allowed, and finally it was settled that alienation might be suspended for any number of lives in being. To this was added an absolute term of twenty-one years and the usual period of gestation. It was while the courts were in doubt and uncertainty about the proper limitation, and the rule was fluctuating and unsettled, that some of the cases speak of a reasonable or moderate term of years. Since that period we find no trace in the books of this doctrine of a moderate term of years. It was once allowed, it is true, but it was while the courts were unsettled about what they would sanction and what they would reject. So too, at one period, the rule was a single life in being, and there would, in my judgment, be about as much propriety in .saying that this formed a third rule of the common law in relation to perpetuities as there is in saying that there are two rules on that subject. There have been different rules at different periods. This, like other branches of the common law, has gone through many modifications; but at the time our statute was passed there was but one rule: alienation might be suspended for any number of lives in being and 21 years and a fraction over; and this rule the statute has modified.

But .let it be granted thaf there were two or even twenty common law rules. The . pslature has given one and only one rule on this subject, at; every other or different rule is necessarily abrogated. Le it be granted that the common *171 law allows a term without reference to lives. Any absolute term, however moderate, may last through many lives. Then comes the statute and says the absolute power of alienation shall not be suspended for more than two lives, ■ and this shall not be done by any limitation or condition whatever. What then becomes of the moderate term of years ? It is abrogated. We cannot hold otherwise without repealing the statute.

Another argument in support of the trust is, that alienation may be suspended upon any event which will certainly happen at a period within the ordinary duration of human life; and tables showing the probable value of life were referred to. This argument does not differ materially from the one which has just been considered. I think it a sufficient answer that it sets up a. different rule from that which the legislature has prescribed. Whether the best method has been- adopted for measuring the suspense of alienation is not the question to be decided. The statute has given lives as the measure, and nothing else. If we depart from that standard, we depart from the law, and instead of carrying into effect the declared will of the legislature, we put ourselves in their place, and make instead of administering the law.

It is also said that as the statute has given lives as the rule, and as the greater includes the less, we may, at all events, take any portion of human life as minority and suspend alienation during that period. If the testator had limited the trust upon two minorities, the argument would have been very satisfactory, for then the trust could not extend beyond two lives. But he has created a trust which is to continue through thirteen minorities, and that may amount to as rriany lives. The question is—not whether the trust probably will, but whether it can transgress the statute rule. It must be so limited in point of duration that it cannot in any event exceed two lives ; otherwise it is void in its creation.

There is no way in which we can give effect to the statute but by adhering strictly to the measure of duration which it prescribes. The utmost limit for which alienation *172 may be suspended must be measured by lives, and there can be only two lives. The lives must be designated. This may be done, either by naming two persons in particular, or else by describing a class of persons and bounding the suspense of alienation by the lives of the two'first who shall die out of the class. If the two last lives are taken, it is obvious that the suspense will continue for as many lives as there are persons in the class. The limitation "may be for a shorter period than two lives; it may be for a single life. The estate may also be limited so as to depend on some event besides life; as an estate to A. for ten years if B. and C. or either of them shall so long live. Here the estate may determine either by the lapse of the ten years, or by the death of B. and C., but it can in no event exceed two designated lives. So an estate during the minority, widowhood or other stage of existence, through which two individuals may pass, would be good, because it could not by any possibility extend beyond two designated lives. But life must in some form enter into the limitation. No absolute term, however moderate or however short, can be maintained; and no uncertain term, the utmost limit of which is not bounded by lives, can be sustained. In short, the statute has said that alienation shall not be suspended beyond two lives, by any limitation or condition whatever, and any disposition which may work a larger suspense must be utterly void.

We cannot model this will for the purpose of obviating the difficulty. The testator has not said that the-trust shall cease on the death under age, of one, two, three, or any other number of the minors; and we have no authority to say it for him. We know not which two of the class he would have selected, or whether indeed he would have rested the term on any two lives in the class. He might have created a trust for the lives of two other persons; and if the term had been for the longest of the thirteen minorities, provided A. and B. or either of them should so long live, it would have been a valid trust so far as relates to the suspense of alienation. It could in no event continue beyond the two designated lives, and might terminate sooner by the ceasing of *173 all the minorities. But the two lives which the testator might have selected may have fallen already. Those candles may have burnt out. I know of no legal principle upon which we can re-mould the work of the testator. If he has created a trust which may suspend the power of alienation for too long a period, we can do nothing but adopt the language of the statute and declare it “ void in its creation.” The same question in substance was before the court in the case of Coster v. Lorillard . There the trust was to continue for twelve lives, and the whole disposition was declared void.

Under this branch of the case, I must notice the argument that the trust to pay legacies and annuities is valid under the 2d subdivision of the 55th section; and inasmuch as trusts under that subdivision are not in terms subjected to the rules prescribed in the first article against perpetuities, it is no objection to this trust, so far as it relates to legacies and annuities, that the power of alienation may be suspended beyond two lives. This is a bold argument and one which fully meets the difficulty. It supposes that the legislature has failed in the effort to control perpetuities, and that by a trust for paying annuitants, the power of alienation may be suspended for an unlimited period.

Under another branch of the case I have already remarked that the testator did not attempt to create a trust under the 2d subdivision ; but that he intended to create a trust to receive rents and profits, which if valid for any purpose, must fall under the third subdivision. I have also expressed the opinion that a valid trust to receive rents and profits cannot be created under the second subdivision. But if that opinion is not well founded, I think the ground assumed by the counsel cannot be maintained. The right to create a trust to receive rents and profits is not in terms conferred by the second subdivision, and if it can be made out by argument and inference, it will still be a trust falling within the very letter of the third subdivision, and which is expressly subjected to the rules prescribed in the first article against perpetuities. If the same description of trust may be created under two different branches of the statute, I think it enough that the legislature, when they treat in terms of a *174 trust to'receive rents and profits, have expressly limited the perj0(j beyond which alienation shall not be suspended.

But there are other and I think conclusive answers to the argument. The legislature has spoken more than once on this subject, and there is no device by which a perpetuity can be maintained. The last clause to each of the third and fourth subdivisions of the 55th section was wholly unnecessary. It was added from an excess of caution, and to prevent the possible supposition that a perpetuity might be created by means of a trust. It was enough that the statute had once declared that the absolute power of alienation should not be suspended beyond a specified period, and that this should not be effected by any limitation or condition whatever. But this is not all. The 36th section expressly provides that dispositions of the rents and profits of lands shall be governed by the rules established in relation to future estates. This alone covers the whole ground. It extends to every disposition of rents and profits without any reference to the purpose to which they are to be applied, and it reaches every trust which the testator has attempted to create.

Having disposed of the first branch of the case, which relates to the validity of the trust, nothing remains but to inquire—

Secondly. Whether any part of the will can be carried into effect under the doctrine of powers.

The 58th section of the statute declares, that “ where 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.” It will be observed that an express trust can only be valid as a power in trust, where it' is created for a purpose not enumerated in the preceding sections. Trusts to pay debts, legacies and charges, had been previously enumerated. So also had been trusts to receive the rents and profits of lands and apply them to the use of any person, and a like trust for the purpose of accu *175 mulation. As to any and all of those trusts, they must stand or fall as express trusts under the 55th section, and cannot be carried into effect under the doctrine of powers. The language of the statute is, I think, too plain and explicit on this point to admit of any serious doubt. You may create express trusts for certain specified purposes, which shall be valid, and be carried into effect as trusts—not as powers in trust. But if you create an express trust for any other purpose, it may in certain cases be valid as a power in trust.

It is a matter of no moment that the testator has failed to create any valid trust for the payment of debts, legacies or charges, or for the receipt of rents and profits. It is enough that those are purposes for which a good trust might have been created, and no provision for those purposes can be valid as a power in trust. This covers all the objects for which the estate was devised to the trustees, except that of making partition at or near the end of the trust term. Is this valid as a power in trust ? That inquiry, in my view of the subject, is all that remains of this case.

It cannot be necessary to go through with the new nomenclature of powers contained in the statute for the purpose of proving that a valid power may be granted to make partition. But the time when the power is to be executed may be very material to its validity. There are no means by which alienation can be suspended beyond the period prescribed in the first article ; and we shall find, I think, the same difficulty on that point, when the case is examined under the doctrine of powers, that was presented when considering it as an express trust under the 55th section, The power can only be executed at the time and in the manner prescribed by the testator. Although the trust falls to the ground, the time and manner of executing the power still remain. By the will, the final distribution is to be made and the conveyances executed “ at the expiration of the period herein prescribed for the continuance of the trust.” It can only be done when all the minorities shall have ceased; and if no one can in the mean time convey an absolute fee in the land, then we have already seen that the power of alienation is suspended for a longer period than *176 the statute allows. The inquiry then will be, who can alien during the term 1 It should be observed that the power of alienation is suspended unless there are persons in being by whom an absolute fee in possession can be conveyed. § 14. r , .. , It must be an absolute, not a conditional fee, nor one which is liable to be defeated by any possible contingency, It must not be an estate in expectancy, but an absolute fee in possession. I think it quite clear that such an estate cannot be created in the lands of the testator, either at this time or at any other period during the term. If all mankind were to unite in the conveyance, the object could not be effected.

The trust having failed, the estate descended to and vested in the heirs at law of the testator, subject to be divested by the execution of the power. § 58, 59. The heirs can alien their interest, but that is only an interest for a term of years, which will be divested on the ceasing of the minorities and the execution of the power. Or if we suppose them technically seised of the fee, is not an absolute but a qualified fee, which will be defeated at the expiration of the term. Who then can convey the residue of the estate ? Can the seven children and two grand-children who are to take the eight and a half shares on the final distribution 1 In the first place, I doubt whether they take any estate under the will until the actual execution of the power. But if we may regard their interest under the power as an estate in the lands, they have then, I think, contingent remainders for life limited on a term of years. If they were by the will to take absolutely under the power, the mere uncertainty as to their living until the time when it is to be executed, would not render the remainders contingent. They would be vested in interest although they might never vest in possession. But the persons who may take under the power have as yet no fixed interest. It is not only undetermined what portion of the estate, if any, they will be entitled to receive— whether one-twelfth part each or a smaller quantity—but whether they will ever be entitled to any thing depends on a contingent event—the decision which the trustees shall make at the end of the term in relation to moral character. Until that decision is made, it is impossible to say that they *177 have any certain interests which must vest in possession if they live until the time prescribed for the execution of the power. It is not now certain, nor can it be during the term, that they will ever have a right to the future enjoyment of the estate.

But whether the remainders are vested or not, the nine children and grand-children can only convey such interest as they may possibly take under the power ; that is, only a life estate in each ; and the question still recurs, who can convey the residue of the fee 1 The persons who, are to take the ultimate fee may be, and many of them probably are, yet unborn. They may not be born during the term, nor until an indefinite period afterwards.

For the purpose of illustration, let us take the case of Augustus James. If he die during the term, his share is to be conveyed to his heirs at law. Clause 39. This will include not only his present children, but such as may be born before his death; and if any of his children should die before him, leaving issue, will include such issue. Again: should Augustus die during the term, leaving no lineal descendant, his share would in that case go to his collateral relations, some of whom may be yet unborn. Another case may be put: If Augustus die during the term, leaving any child who was living at the death of the testator, such child is to take only a life estate under the power. Clause 39, 44. Then all the consequences may follow which I am about to mention as depending on the event that Augustus shall survive the term. I might stop here, and it would be impossible not to see that events may happen which would defeat any conveyance which could be made of the estate. But let us suppose that Augustus lives until the time prescribed for the execution of the power, and that he will then be entitled to take one share under it. He will have a life estate in the share with power to devise the same in fee to his lineal descendants, in such manner or proportions as he may think proper. Clause 44. This power of appointment not only includes all his children now living, but such as may be born during or after the end of the term j and *178 it includes all his unborn grand-children or other more remote posterity that may be living at the time of his death. It follows beyond all room for question, that the fee in his share cannot be conveyed during the term, nor within any definite period afterwards. Again, suppose Augustus dies after partition made,' without executing the power of appointment, His share is then to go to those who would take under the statute of descents. Clause 44. This will include all his posterity, however remote, that may be born during his life; and if he leave no lineal descendants, the share will then go to his collateral relations, which may include persons yet unborn, and who may not be born within fifty years. -

Without proceeding further nothing can be more clear than that an absolute fee cannot now be conveyed in the share of Augustus. It could not be effected if all mankind were to join in the conveyance; and the estate is so limited that the same consequences will in all probability exist, not only during the term, but long after it is ended. Although it is in the highest degree probable that the power of alienation will be suspended beyond the term, yet the invalidity of the devise does not depend upon that probability. On the contrary, if the estate is so limited that by any possibility the power of alienation may be suspended beyond the statute rule, the limitation is void. In other words, the estate must be sp limited that some person or persons in being can convey an absolute fee in possession within the duration of two lives—otherwise the limitation is void in its creation. § 14,15.

We have already seen that the term is too long—that it depends on more than two, to wit, thirteen lives. If the trusts are void on that ground, so also must be the power in trust. The particular limitation or condition by which alienation is suspended—whether by a trust or a power— can be a matter of no moment. The statute says it shall not be done by any limitation or condition whatever. This is strong language, but it is the language of the law. We cannot avoid it by construction—we cannot pass it by un *179 noticed—we must see, in this and all other cases, that it is carried into full effect.

The power in trust cannot properly be regarded as a mere incumbrance on the land. Where there is a judgment, mortgage, or other charge of the like nature, the incumbrance may be extinguished by payment or a release. The owner of the land, by uniting with the incumbrance creditor, may convey an absolute fee in possession ; but the power under which the trustees are to make partition and convey, is a power to create an estate. The property of the testator goes to his heirs at law, as tenants in common in equal shares until the time arrives for making partition-Then by the execution of the power, the estate of the heirs will be divested, and such of the beneficiaries as have not forfeited their shares, will take new estates in severalty. What kind of fee can be conveved so long as a power exists by which it may be utterly defeated ? It surely is not an absolute fee.

The power by which the new estates are to be created cannot be released or in any way destroyed. It is imperative on the trustees. § 96, 97. All the persons now living) or who will probably be living at any time during the term cannot extinguish the power; nor would the death of all the trustees defeat its execution. § 100. It is an abuse of terms to call such a power a mere incumbrance on the estate.

But let. it be supposed that the power can be extinguished. What will be the consequence 1 The estate is now vested in the heirs at law. Blot out the power, and their interest will immediately become absolute. There will then be no means by which their estate can be divested for the purpose of giving the property to others ; and the will of the testator will be as completely overturned as it can be in any other possible mode.

Upon the best consideration which I have been able to give to this case, I am brought to t.he following conclusions :

I. The trust in relation to its objects and the manner in which it is declared, is contrary to law, and is consequently void.

*180 II. If the trust is valid so far as relates to the purposes for which it was created, and the manner in which it was declared, it is, nevertheless, void on the ground that it is so limited as to create a perpetuity. In other words, the absolute power of alienation may be suspended for a longer period than the law allows. Upon both or either of these grounds, the devise was invalid as an express trust under the 55th section, and no estate vested in the trustees.

III. The will cannot, either in whole or in part, be carried into effect under the doctrine of powers, because this presents the same objection in relation to the suspense of alienation that arises when the case is considered as an express trust.

The consequences which result from the view I have taken of the case, may be briefly stated as follows:

I. The real estate of which the testator died seised, descended to his heirs at law in the same manner as though he had died intestate ; and his personal property, subject to the payment of debts and legal charges, belongs to those who, at the death of the testator, were entitled to take as next of kin under the statute of distributions.

II. The annuities are inseparably connected with the trust, and must fall with it. Such was the opinion of the late chief justice in the case of Coster v. Lorillard ; and although the rights of the aunuitants were saved in the decree, it was for the reason that they were not before the court, and not, as I believe, from any doubt about their invalidity, I do not see how it is possible to uphold the annuities, when the trust on which they depend is overthrown. They are to b.e paid from rents and profits which will never accrue.

III. None of the directions in the will for making advances to sons and grand-sons, paying marriage-portions to daughters and grand-daughters, nor any of the contingent provisions for minors, widows, and children, can be maintained. The objections to them are fatal, whether they are regarded as trusts or as powers in trust. They are not distinct independent provisions, but evidently resulted from the necessity which the testator had created for guarding his *181 family against absolute want, after having devised his whole estate to trustees for a term of twenty years.

IV. The $10,000 directed to be paid to James King by the 38th clause of the will, is but a part of the general distribution, and must fail with other provisions of the same character; and besides, this portion is to be carved out of the share of his daughter which wholly fails. She will take as heir at law, and not under the will.

V. There may be more room for doubt in relation to the $50,000, given to the children of Augustus James, and the $20,000 each, given to Anna McBride James and Lydia James by the 36th clause of the will. Lydia James will take as heir at law, and cannot also take under the will. But independent of this consideration, these provisions all depend on the trust—the payments are to be made from rents and profits which will never arise. If they are to be regarded as a part of the trust, then they necessarily fall with it. If they constitute a part of the final distribution under the power in trust, then, like other provisions of the same character, they are objectionable on the ground that the power of alienation is suspended for a longer period than the law will permit. I should be glad to uphold the provision for those grand-children who will not take as heirs at law, because they seem to have been favorites with the testator ; but I am unable to discover how it can be done consistently with the views which I entertain of the law of the case.

VI. The several legacies of $3000 to the children of Jeannette B. Gourley, $1000 to John James, and $2500 to the society for the relief of orphan and destitute children, I regard as valid. They are distinct independent provisions which do not necessarily depend on the trust which the testator attempted to create. The provision for orphan and destitute children is in the first instance given in the form of an annuity of $150, but that was only to continue until the trustees should find it convenient to invest the sum of $2500, in some public stock which was thereupon to be transferred to the managers of the society. I think this may properly be regarded as a legacy equal in amount to *182 the sum which the trustees were directed to invest; and as such it is valid. The debts of the testator and the three legacies should be paid out of the personal estateand the residue of the fund, after all just allowances to the trustees and executors, should be distributed among the next of kin to the testator.

I have now gone through with all that T think it necessary to say in relation to this case. Although I came to the ex-: amination of it, strongly disposed to uphold the will, Iam fully persuaded that it cannot be done consistently with the rules of law. If others entertain the opinion that the trust can stand, or if, in any other form, they can give effect to the intent of the testator, I shall not regret it. For myself, I have followed where the law seemed to point the way, and if I have not mistaken the path, the disposition made by the testator of his estate is contrary to law, and consequently void.

So much of the decree of the court of chancery as 'declares the trust or the powers in trust valid for any purpose, should, in my opinion be reversed, and a decree should ' be entered in accordance with the principles which I have mentioned. .If payments or advances have been made to any of the beneficiaries, in part execution of the trust, they should account for and refund those moneys on the distribution of the personal estate. I presume no one has received more than will fall to his share as one of the next of kin to the testator.

The trustees have undoubtedly acted in good faith, and all their acts should be ratified and confirmed. For that purpose the court of chancery may direct releases and conveyances by the heirs at law, should it be deemed necessary. The trustees should render a full account, and should have all just allowances, including compensation for their services and all necessary expenses. The costs of all parties to be taxed should be paid out of the personal estate ; and the court of chancery should be directed to carry the decree of this court 'into full effect.

*183 • By Mr. Justice Co wen. From the decree made by the chancellor all the parties have appealed and urged upon us arguments favorable to their various and conflicting interests. In passing upon these appeals I am so unfortunate as to differ from my learned brethren of the supreme court. They do not agree with the chancellor in sustaining the more important provisions of the will. Before hearing their opinions, in a course of examining this decree and considering the objections made to it, I had encountered little difficulty in reaching the conclusion that the will should be maintained at least in the full extent to which it was declared valid by the court of chancery. It is certainly with diminished confidence that I still adhere to the same opinion.

It is insisted by the heirs in the first place, that the trust term and devises, if otherwise valid, are yet void as being intended to subserve the illegal purpose of accumulation; that this prominent object of the will being condemned by the statute, and therefore invalid, the whole instrument is destroyed. The case was likened on the argument to a deed, one provision of which is intended to defraud creditors. In such a case it is true, the whole deed is a nullity, and even its honest provisions cannot be saved, ‘The statute, however, cuts down the whole as a punishment for the fraud ; and the courts give it a very liberal construction with a view to remove every obstacle in the way of redress to the injured party, There are similar statutes against usurious contracts and gaming contracts, which are construed in the same way.

Such statutes declare the instrument itself, not any particular provision contained in it, to be void and of effect. They are like the old act of 23 Hen. 6 , c. 9, declaring a bail bond to the sheriff void, if taken for any thing beside an appearance at court. The reason given in Norton v. Simmes, Hob. 14, is that “ the letter of the statute is so.” It needs hardly be said, that a statute restricting the power to sell or devise property stands on a widely different ground. There is, however, an authority in point to show that this is so. Both in England and in this country we have enactments called statutes in mortmain, which declare conveyances of land to corporations void. One of these statutes in England *184 ^ec^arec^ conveyances for charitable uses absolutely void, unless made a year before the death of the donor, and attested- and enrolled in a particular way. A deed of land for a charitable use was made in direct violation of the statute; but it also purported to convey other land which the deed would have clearly carried if for that only. The objection was made that all was void under the statute. The Lord Chief Justice Gibbs, in adverting to that objection, said it was admitted that if it were a case at common law, that would not be the consequence; for then it would be void as to so much only as falls, within the objection, and good as to the rest. “ The truth is, there is no difference between a transaction illegal at common law and by statute ; and the objection being that this deed conveys property in a way that is prohibited whether by the common law or by statute, the construction is the same. Taking it to go no further than as I now state, it follows that that which conveys illegally is void, and that which conveys legally is valid. A statute, when it prohibits a thing, may go further, and say that the deed by which it is done shall be void, and then a court of law must decide that it is void to all intents and purposes, because the legislature has said so.” In this opinion the court agreed. Doe ex dem. Thompson v. Pitcher, 2 Marsh. 61 ; 6 Taunt. 369, S. C. The cases of Howe v. Singe, 15 East, 440, and of Adams & Lambert, 4 Rep. 104, 111, are full to the’same point. The chancellor has done in the case at bar precisely what was done by a court of law in Doe v. Pitcher. Instead of confining accumulation to his numerous infant devisees, the testator joined two or “three adults with them. This the statute had forbidden, in the 37th section; and the 38th section declares all directions not in conformity to the previous one, to b

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