1 The new revision - the Real Property Law of 1896 - has changed the arrangement of the sections of the Revised Statutes and their phraseology to some extent. It has been suggested that an unlawful suspension of the absolute power of alienation cannot now arise merely on account of the creation of a spendthrift trust, no matter how many lives are involved. Chaplin on "Express Trusts and Powers," §§ 383-386. - Ed.
It cannot be well said that this trust was limited upon the life of the widow and to terminate at her death. It is doubtless true that the testator expected that his wife would live to the termination of the trust. But the trust was for the benefit of his children as well as his wife, and they have an interest in its execution. It was to continue until the division of the estate, and that was not to take place until December 10, 1893. If the widow should die before that date, the trust, if valid, would devolve upon the court, and it could appoint another trustee. The trust was not so far personal that it would disappear with the death of the widow. The discretion vested in her was not a personal discretion, but one to be exercised by her as trustee, which could, therefore, be devolved upon her successor to be appointed by the court. Hull v. Hull, 24 N. Y. 647; Rogers v. Rogers, III Id. 228.
It is contended further, on the part of the defendants, that, as the widow has full power to use so much of the principal of the estate as she might deem necessary for the support of herself and children, and as she has full power of sale the testator meant her to have dominion of the entire estate, and that her children should take what she did not use, and that such disposition confers upon her a fee; and the cases of Beaumont v. Beaumont, 91 N. Y. 464; Wager v. Wager, 96 Id. 164; and Crane v. Wright, 114 Id. 307, are cited to uphold this contention. These cases, as well as certain provisions of the Revised Statutes (I R. S. 733, §§ 81-83), would have been controlling if the testator had given his widow the absolute power to dispose of the estate for her sole benefit. But she was not solely interested in the estate. She was a trustee and was clothed with a power for the benefit of others as well as herself, and, therefore, she took no greater or other estate under the will than its terms gave her.
1N. Y. R. P. L., §32. - Ed.
2 N. Y. Personal Property Law, § 2. - Ed.
As there was here an absolute power of sale conferred upon the widow, it cannot be said that the power to alienate the real estate was suspended. But the proceeds of the sales of the real estate, whether regarded as realty or personalty, would be tied up by the trust, in violation of the provisions of the Revised Statutes first above referred to, and hence the power of sale does not save the provision of the will from condemnation.
This estate did not vest in the testator's children at his death. It vested in the widow as trustee, and at the termination of the trust period what remained of it was to vest in the testator's legal heirs then living as if he had then died intestate. There were, therefore, no persons in being at the death of the testator, assuming the trust to be valid, who could convey an absolute title to the estate. The trust stood in the way of such a conveyance as well as the impossibility of determining who would take the estate after it passed from under the trust.
We are, therefore, brought to the conclusion that the judgment of the General Term should be reversed and that of the Special Term affirmed, and that the costs of all parties upon the appeal to the General Term and in this court should be paid out of the estate.
b. "Estates in 'Remainder' Shall be so Limited that Within the Statutory Period, if Ever, they Must Vest in Interest." 1
1Chaplin on The Suspension of the Power of Alienation, § 1. The term "remainder" is here used in the broad sense given to it by the New York sta-utes. See note, p. 867, supra. This rule is nowhere stated in terms in the N. Y. statute, but is a generalization from §§ 32-36, 40, N. Y. R. P. L. The "statutory period" is two lives in being at the creation of the estate, except in the case of a contingent remainder limited on a fee. §32. See §§ 319, 323, Chaplin. - Ed,
4. The Rule Restricting the Accumulation of the Income of Land.1
14 New Hampshire, 215. - 1843.
Another question in the case arises from the deed by Mrs. Hall. It appears that on the 26th day of April, 1824, the petitioner and her husband, by their quit-claim deed, conveyed to Gaius Hall " all our right, title and claim to all the land or real estate willed to us by Seth Britton." The defendants have all the right and interest of Gaius Hall. Mrs. Chaffee died in the year 1839. The question is, whether the interest which Mrs. Hall took under the will, being by way of executory devise, could be transferred by such a conveyance? A contingent remainder does not confer any interest which is grantable. Shep. Touch. 238. At common law, a possibility was held not to be assignable. 6 Cruise, tit. 39, § 47. Contingent executory interests or possibilities may be passed at law by fine, by way of estoppel. Fearne on Rem. 551. An assignment of a contingent interest in lands of inheritance may be carried into execution by a court of chancery, upon the ground that it is such a contract that its specific performance may be decreed. Wright v. Wright, 1 Vesey, Sen. 409. It may be transferred by deed in equity to a stranger. Higden v. Williamson, 3 P. Wms. 132. A court of law, however, will not recognize the assignment of such interests before they vest in possession. 2 Prest. Abstr. 118. If A have a term for 1,000 years, and devise it to B for life, remainder to C and his heirs, C may release his interest to B, although he cannot grant it over. 1 Co. no, 114, Albany's Case; 10 Co. 47, 51, 52, Lampet's Case.