1 The estate is upon condition, limitation or conditional limitation. - Ed. 2 While discussing the case fully from this point of view the court finds that there was in fact an active trust. - Ed.
for life, with no provision for its earlier termination, and no limitation over in the event specified, any attempt of the testator to make the interest of the beneficiary inalienable, or to withdraw it from the claims of creditors, would have been nugatory. Such an attempt would be clearly repugnant to the estate in fact devised or bequeathed, and would be ineffectual for that reason, as well as upon the policy of the law. The Blackstone Bank v. Davis, 21 Pick. 42; Hallett v. Thompson, 5 Paige, 583; Graves v. Dolphin, 1 Sim. 66; Brandon v. Robinson, 18 Ves. 429. This doctrine, however, and the cases on which it rests do not deprive a testator of the power to declare effectually that the bequest shall cease on the happening of an event which would subject it to the claims of creditors, and then to give it a different direction. "There is," said Lord Eldon, in Brandon v. Robinson, "an obvious distinction between a disposition to a man until he becomes a bankrupt and then over, and an attempt to give him property and to prevent his creditors from obtaining any interest in it although it is his." See, also, Shee v. Hale, 13 Ves. 404; Lewes v. Lewes, 6 Sim. 304; and Graves v. Dolphin, 1 Id. 66. This distinction is one of substance, and we think the principle on which it depends will sustain the will of the testator in the present case. If a testator may provide that his bounty bestowed upon one person shall cease and go to another on the occurrence of bankruptcy, I can see no reason why he may not do so in the event of an execution returned unsatisfied, followed by a creditors' suit and judgment therein. * * *
Mitchell, J. - * * * By the will the beneficial interest in a certain share was in Myron during his life, and might pehaps have been reached in part by his creditors. The testator then alters that interest, so that on a certain event it should cease and the income should thenceforth pass to others. As the will and codicil form but one instrument, the estate which the will might have given but for the codicil, never existed. The only estate or interest which Myron ever had was that which was created by the joint effect of the two instruments; that was a right to have the income of a certain share paid over to him until a judgment creditor's bill should be filed against him and a decree had thereon, and then that right was to cease and to pass in favor of his family. The father when he made the will and codicil owned the whole estate; he had the absolute power over it; he could carve out of it such interests as he pleased, if he violated no rule of law in doing so; he could give one-third to Myron so long as he lived in this State, or so long as he lived out of it, or until a third person should return from Rome or go to it, or on any other similar arbitrary contingency, according to his will or caprice. He was under no obligation, legal or moral, to give his property so that the creditors of Myron could take it from him or his family. His moral duty and his duty to the State were greater to save Myron and his family from want or from being a burden on the public, than to devote his property to pay his son's creditors. There is, therefore, no public policy which should frustrate the testator's intention.
The testator has not, as supposed by the counsel for the plaintiff, given to his son a certain estate and then attempted while the estate continued to take from it one of the incidents which the law binds inflexibly to it; but he gives him a certain right in the property, which is to continue for a limited time until an uncertain event shall occur, and then, when that event occurs, is to cease entirely. While the son holds it he holds it with all the incidents which the law attaches to it; when the event, on which it is to cease, occurs, the son has no longer any right or interest in it, and with the loss of his right all right of his creditors also falls to the ground. If the creditors could find any previously arising income, which the son had not called for and could call for, undisposed of and in the hands of the executors, their rights to that would remain unimpaired; but when his right ceased, so also did theirs. * * *
Thus the rule is made not to depend on the question whether the act causing the termination of the estate comes from the tenant for life or from his creditors, but on its being made (whatever it may be) a cause for the transfer of the estate to another. In Hallett v. Thompson, 5 Paige, 583, there was no bequest over on any contingency. In Degraw v. Clason, 11 Paige, 136, there was what the chancellor considered an absolute estate in the legatee, alienable by her although held in trust for her, and there were no words showing that the bequest was for the personal support of the legatee, and there was no bequest over.
(2.) Responsibility of Life-tenant for Incumbrances and Taxes. The Vice-Chancelor in
2 Edwards' Chancery (N. Y.), 231. - 1834.
Then, as to the two mortgages existing on parts of the real estate. The question is, who are to bear the burden of them, and in what proportions and how and by whom are the principal and interest of such mortgages to be satisfied?
By the R. S. vol. I, 749, § 4,1 the devisee of real estate, subject to a mortgage executed by the testator, is bound to satisfy and discharge it out of his own property, without resorting to the executor, unless there be an express direction in the will to the contrary. Here there is no such direction. A life estate in the house and lot in Cedar street (encumbered by a mortgage of ten thousand dollars, being one of the houses there situated of which the testator died seized), is given under the trusts of the will, to the widow of the testator and to his brother Jonathan and sister Lois in equal thirds; and by the residuary clause, an estate in fee in remainder in the same property is given to the two nieces, Mary and Elizabeth L. Cogswell, subject to the contingency of their dying without issue. The same is the case with respect to the ten vacant lots on Front street, which are under a mortgage of two thousand six hundred and ninety dollars. Now, as between the tenants for life and those entitled in remainder, the former are bound to keep down the interest on the mortgage debts, and they must contribute alike out of their respective shares of the rents and profits during life to pay the interest on those sums. As the life estates fall in, the principal sums remain a charge upon the inheritance and must be borne by those who succeed to it. The tenants for life are not bound to extinguish the incumbrances. They are only to keep down the annual interest: 4 Kent's Com. (I ed.) 72, 73; and as a consequence of this rule, in case the mortgagees should call in their money or if it should be found expedient to pay them off out of the residuary personal estate belonging to the nieces Mary and Elizabeth, they will be permitted to stand in the place of the mortgagees so far as to collect the interest payable by the tenants for life.