Statement of case.

ABRAHAM POST and others v. JOHN HOVER, Jr., and others.

If the purposes of a trust are separable, and some of them must arise within two lives, and there are others which can only become operative after the expiration of the two lives, the former may be sustained, but the latter cannot be.

To devise an estate by implication, there must be so strong a probability of such an intention, that the contrary cannot be supposed.

Where, by the terms of the will, the supposed devisee by implication is constituted a guardian, &c., and, as such guardian, is to have charge of the estate, the idea of devise by implication is strongly repelled.

If the language of a deed or will is susceptible of two constructions, and, by adopting one construction, it would be unlawful, while, if the other were followed, it would be valid, the latter interpretation should be given.

APPEAL from the judgment of the Supreme Court. The plaintiffs, being two of the heirs-at-law of John Hover, deceased, brought this action to determine the construction of his will, and to obtain such relief as they might be entitled to.

The testator made his will in 1852, and died in 1857. After directing the payment of his debts out of personal estate, he proceeds, in the second clause, as follows:

"I give, devise and bequeath unto my three grand-children, viz. Erastus Hover, Mary Elizabeth Hover and John Hover, infant children of my son Peter, all that part of my homestead farm, so as to include my dwelling house, &c. (describing the premises, which are said to contain two hundred and twenty acres of land), to have and to hold the same to my said three grand-children above named, share and share alike, subject, however, to the conditions hereinafter stated, and to the payment of all my just debts and funeral expenses, and to the payment of all such legacies as I shall charge upon this part of my estate so devised to my said grand-children. Whereas, the three grand-children above named, to whom I have devised that portion of my homestead farm, are now all minors under the age of twenty-one years, now, it is my will and pleasure that they are not to take said TIFFANY.- VOL. VI. 75

3391

Statement of case.

estate until they severally arrive at the full age of twentyone years; and in case of the death of either of them before arriving at the age of twenty-one years, without issue lawfully begotten, the survivors or survivor of them to take the share of such as may die without issue before a division is to take place; and should all of said three grand-children above named happen to die without leaving lawful issue before they arrive at full age of twenty-one years, then, in such case, I give said real estate to my son John Hover, his heirs and assigns forever. It is my further will and pleasure, and I do so order and direct, that during the minority of the said three grandchildren, my son, John Hover, shall take charge of, and have the management of that part of my real estate immediately after my decease, and out of the avails of said estate my said son John shall support my said grand-children and their mother Mary, if she remains single; and I do hereby nominate, constitute and appoint my son John Hover guardian of my said three grand-children above named during their minority, and as such guardian to have charge of their estate. And whereas, I desire to make provision for the support of my daughter-in-law, Mary Hover, widow of my deceased son Peter, now it is my will, that so long as Mary Hover, the widow of my deceased son Peter, shall remain single and continue the widow of my said son, she shall remain in my mansion house and superintend the household affairs, and be supported out of the avails of that part of my estate herein devised to my three grand-children above named, children of the said Mary and Peter Hover; but in case she should again intermarry, then the provision for her support and maintenance is to cease, and she no longer will be permitted to remain in my said mansion house or upon my said farm; and in case of the death of all my said three grand-children without issue before they all arrive at the full age of twentyone years, so that the said real estate shall fall to my son John, as above stated, then I direct, that upon the happening of such an event, that my son, John Hover, shall pay over to my daughter-in-law Mary, widow of my deceased son Peter, the sum of one thousand dollars, which shall be in full of

Statement of case.

her maintenance and support, and in full of all claims she might have against my estate.

“It is my further will and pleasure, and I do so order and direct, that my son John shall, after supporting my said three grand-children and their mother, if there shall be any sur plus arising from the avails of this part of my estate devised to them, pay and discharge the debts and legacies charged thereon; and after the payment of all debts and legacies charged thereon, then I direct that my said son shall invest at interest such surplus for the use and benefit of my said grand-children, to be paid over to them when they severally arrive at the full age of twenty-one years, share and share alike; and for the care and attention that my said son John shall necessarily bestow in the management of my said estate, he be paid, over and above all his expenses and legal fees, the yearly sum of fifty dollars; and my son John shall not be made liable nor held accountable for any losses in the management of said estate, unless for gross neglect, provided he does the best he can for the interest of said estate, which is to be left wholly to his sole judgment.'

The testator then gives legacies of $25 each to three of his daughters, one of whom and her husband are plaintiffs in the action, and legacies of $200 each to his four other daughters, one of which last and her husband are the other plaintiffs. These sums are directed to be paid out of the personal estate, and are also contingently charged upon the land devised to the three above mentioned grand-children.

He then makes certain provisions for other of his children and grand-children, and disposes of the residue of his personal estate as follows: "Whereas I have in this my will directed my executors to pay all my debts, funeral expenses and legacies out of my personal estate, and have also made them liens upon that portion of my homestead devised to my three grand-children, heirs of my son Peter: Now to enable them to meet the payment of all the debts and legacies, I give and devise all the rest of my personal estate not otherwise devised, unto my said three grand-children, heirs of my son Peter, share and share alike, subject, however, to the payment of

Statement of case.

all my debts, funeral expenses and the legacies devised to my daughters and my son John, and which I have charged upon my homestead farm to my said three grand-children last named; but I desire to have it fully understood that my said grand-children last named are not to enter into the possession of any part of my real estate devised to them until the youngest child shall arrive at the age of twenty-one years; but in regard to the personal estate I have devised to them, they shall take and receive their several shares or portions as soon as they shall arrive at the age of twenty-one years." The real estate devised to his grand-children was of the value of about fifteen thousand dollars, and the personal property left by the deceased was of the value of about eight hundred dollars. The testator's son, John, and John P. Johnson were appointed executors. The testator left surviving him, his heirs and next of kin, eight sons and daughters, and seventeen grand-children, sons and daughters of deceased children.

The executors and certain of the heirs and next of kin answered, insisting that the provisions of the will were in all respects legal and valid, while others of the heirs in their answer claimed that the devise to the three grand-children was illegal and void. Those who were infants put in a general answer by their guardian ad litem.

The case was tried by a jury before Judge GOULD, when the facts above mentioned being proved or admitted, the judge ordered judgment for the defendants, subject to the opinion of the court at General Term.

The General Term gave judgment to the effect that the trust or direction to the testator's son, John, to manage and control the estate and receive and apply the avails thereof during the minority of the three grand-children, and to accumulate the surplus thereof, was invalid, and that the other dispositions, including the devise to the three grand-children, were valid and effectual.

The plaintiffs and two defendants who had insisted on the invalidity of the devise, appealed from the whole judgment, except the part which adjudged the alleged trust in John

Opinion of the Court, per DENIO, Ch. J.

Hover void. The three grand-children who were devisees of the homestead, did not appeal.

John H. Reynolds, for the appellants.

A. J. Parker, for the respondents.

DENIO, Ch. J. The Supreme Court considered that by the terms of the will there was a devise in trust by implication of that part of the homestead farm described in the second clause to John Hover; and that, as the trust term was to continue during the minorities of the three grandchildren, the devise was void as creating an illegal perpetuity. But it was held that by rejecting this void devise there would remain a direct and immediate devise in fee to the grandchildren, subject, of course, to be defeated by the happening of the event by which the executory limitations were to take effect, and it was adjudged that such was the effect of the will. I concur in the result at which the Supreme Court arrived, but not upon the precise grounds on which it is placed in the opinion. That supposes the testator's intention to have been to withhold the legal estate from these devisees until they should all have arrived at the age of twenty-one years, and in the meantime to vest the title in the trustee. The change wrought in the will, by the application of this theory, would be to anticipate the gift to the grandchildren by the whole period of their minorities, to transform a devise, which was intended to be distant and contingent, into one which will be immediate and direct, and to subvert the power of management during the nonage of the children, which was carefully provided for by the testator. The cases referred to in the opinions do not go the length of authorizing so great a departure from the provisions of a will. In Savage v. Burnham (17 N. Y., 461), the devise was to the widow for life, then to the daughter of the testator for life, and then, if any of them should die. without issue, to the survivors, not absolutely, but subject to the same limitations which were applied to their original shares; that is, the parts of shares which should accrue to