4. It has been held under the Thellusson Act, that directions for accumulation beyond the term allowed are good for that portion of the time coming within the statute, and only void for the remainder. But it seems to be settled, that as the law stood before the act, the trust for accumulation was void in toto, and the estate vested in the same manner as if the entire direction in regard to accumulation had been omitted.8

5. Under the Thellusson Act, the exception for payment of debts only extends to the debts of the testator, and that in regard to leasing portions for children does not allow the testator to add income to principal, and thus hand it over at some remote period in mass, so as virtually to produce the very evils which the act was intended to prevent.9

6. The destination of the income thus released from accumulation may be regarded as determinable, much upon the same principle before the Thellusson Act, as since. The cases under the statute may therefore be of some value to be here adverted to.

(1.) Where there is a present gift in possession, and the direction for accumulation is merely given to govern the mode of

Maxwell, 3 Beav. 587, 595. The cases which have been decided upon the construction of the particular provisions of the English statute need not be here discussed, unless they apply to the rule as it existed at common law, and which prevails generally in the American States. See Haley v. Banister, 4 Madd. 275; Ellis v. Maxwell, 3 Beav. 587, 596, and the cases there cited upon the point, whether the Thellusson Act allows accumulation during the minority of a child en ventre sa mere at the death of the testator, and which seem to hold that the statute does not allow this period for accumulation in the case of such as are so situated at the death of the testator, which at common law was clearly allowed. Ante, § 71, pl. 71, and note.

Longdon v. Simson, 12 Vesey, 295; Griffiths v. Vere, 9 Vesey, 127; Palmer v. Holford, 4 Russ. 403; Rosslyn's Trust, 16 Sim. 391.

8 Boughton v. James, 1 Coll. 26; s. c. 1 Ho. Lds. Cas. 406; Scarisbrick v. Skelmersdale, 17 Sim. 187; 1 Jarman, 286.

9

• 1 Jarman, 287, and cases cited. But the act says, "the debts of any person." 1 Jarman, 295.

enjoyment, the result is to give those entitled the present income the same as if the direction had not been given.10

(2.) Where the trust for accumulation is grafted upon an estate, where vesting is deferred, or made contingent, until after the period of accumulation, the statute, by stopping the accumulation, does not hasten the vesting or the possession, and the income goes to the residuary legatee, or the heir, as it is personal or real estate, until the vesting or possession of the estate is matured. But where the residue is not given absolutely, but only for life or years, the interest upon a legacy thus directed to be accumulated beyond the legal period, goes into the residue of the estate as capital.12

(3.) And where a residue is directed to be accumulated, the income, when its accumulation becomes illegal, will go to the heir or next of kin, as the case may be real or personal estate.13

(4.) And the income of the accumulations follow the same rule as the accumulations.14

7. The rule against accumulations applies not only to cases which expressly provide for it, but equally to such as make provisions which by implication result in such accumulations. As where the whole residue of an estate is given in such a manner as to postpone the vesting until a period beyond the term

Clulow's Trust, 5 Jur. N. s. 1002; Trickey v. Trickey, 3 My. & K. 560; 1 Jarman, 291. In a very recent case, Coombe v. Hughes, 11 Jur. N. s. 194, Rolls; Chanc. Appeal, 380, (1865,) it was held in the Court of Chancery Appeal, that where a will contains an absolute gift, followed by a direction to accumulate, for more than twenty-one years, the income after the twenty-one years passes under the previous gift, and is not undisposed of.

11 1 Jarman, 292; Macdonald v. Bryce, 2 Keen, 276; Eyre v. Marsden, id. 564; Ellis v. Maxwell, 3 Beav. 587, 597; Nettleton v. Stephenson, 3 DeG. & Sm. 366; Lord Barrington v. Liddell, 10 Hare, 429; Attorney-General v. Poulden, 3 Hare, 555; Jones v. Maggs, 9 Hare, 605.

12 Crawley v. Crawley, 7 Sim. 427; Morgan v. Morgan, 4 DeG. & Sm. 164,

175.

13 1 Jarman, 292; Hull v. Hull, 24 N. Y. Ct. App. 647.

14 1 Jarman, 292, and cases cited.

allowed by law. This, of necessity, involves the accumulation of such residue, by adding income to principal during the time for which the vesting or possession is suspended.15

8. It has been made a question how far a provision in a will for the payment of premiums upon insurance upon the lives of beneficiaries under the will is obnoxious to the objection of infringing the rule against accumulations. In Bassil v. Lister,16 Sir G. J. Turner, Vice-Chancellor, gave an elaborate opinion against the proposition that any such direction came within the rule against accumulations. But the argument of the learned judge is quite unsatisfactory to the learned editors of the last English edition of Mr. Jarman, and is, perhaps, liable to some exception, as opening a very wide door for evading the statute and the common-law rule against accumulations. We apprehend, however, that there can be no just ground of objection to such a direction as was contained in the will in that case, it being for the payment of the premiums upon two policies for the life of the testator's two sons, procured by the testator himself.

9. If life insurance should be sought by testators, as a mode of escaping from the restraints of the rule against accumulations, as matter of evasion, it ought to be held to come within the evils intended to be guarded against. But to hold that life insurance is, in all cases, a mere mode of accumulation, and nothing more, seems to be a very forced construction of the facts

15 1 Jarman, 293. Sir L. Shadwell defines the rule in such cases somewhat differently, but the cases confirm the proposition in the text. Elborne v. Goode, 14 Sim. 165; Corporation of Bridgnorth v. Collins, 15 Sim. 538; Evans v. Hellier, 5 Cl. & Fin. 114; s. c. nom. Shaw v. Rhodes, 1 My. & Cr. 135; McDonald v. Bryce, 2 Keen, 276; Tench v. Cheese, 6 DeG., M. & G. 453; Bryan v. Collins, 16 Beav. 14. In this latter case it was held, that one entitled to a fund upon the happening of a contingency, where the accumulation is directed beyond the time allowed, is entitled to the interest upon the fund from the period that the accumulation becomes illegal.

involved in such a transaction. It is more obnoxious to the charge of being a species of betting or gambling; a kind of lottery, dependent upon the chances of human life, than that of being a species of accumulation.17

10. Accumulation of the income of real estate for the benefit of infants, in esse, at the time such accumulations are directed to begin, and which must terminate with the minorities of the respective legatees, is valid under the New York statute.18 But where the children for whose benefit the accumulation is directed are not in esse at the time the accumulation is to begin, and where the right to the accumulated fund is altogether contingent, the direction is void.18

11. Where the will contains different trusts, some of which are valid and others void, or not authorized by the statute; and there are distinct and independent provisions as to different portions of the testator's property, or where different estates or interests in the same portions of the property are created, some of which estates, provisions, or interests are valid, and others invalid, the valid trusts, provisions, estates, or interests will be preserved, unless they are so dependent upon, or intermingled with, those which are invalid, as not to be separable, without defeating the general intent of the testator. 18

12. Trusts for accumulation, except for infants, are prohibited by the New York statute. A trust, therefore, to accumulate the rents and profits of real estate, or the interest or income of personal estate, cannot be created for the benefit of a lunatic who is not an infant. But where an annuity is given absolutely to a lunatic, a court of equity may direct the surplus, beyond what is required for his support, to be paid over to his committee, and invested for his use. And this will result in an accumulation for his benefit or that of the next of kin, but it is not a trust for accumulation which is prohibited by the statute.19

17 1 Jarman, 294–297.

18 Haxtun v. Corse, 2 Barb. Ch. 506. See pl. 12.

19 Craig v. Craig, 3 Barb. Ch. 76.

13. Where bequests are given, as already stated, with directions for accumulation which are void under the statute, it is held in New York, in accordance with the English rule before stated, that only the direction for accumulation is to be held void, and that the bequest will take effect the same as if no such direction had been given.20

Ante, § 71, pl. 71, and note.