Baptist church in Oliver street, in
the city of N. Y., to be by them put
out at interest until, with the addi-
tions which should be made by sub-
scriptions or otherwise, a sufficient
sum should accumulate to enable
the trustees of that church to erect
in the said village of H. a church or
place of worship for christians of
the Baptist denomination. The will
contained a general power to the ex-
ecutors, as trustees, to sell and dis-
pose of all the real and personal
estate of the testatrix, and directed
them to divide the proceeds, after
the payment of her debts and the
performance of the trusts mentioned
in the will, to her brothers and sis-
ter, and the children of a deceased
brother. After the making of the
will, the testatrix sold the lot on C.
street for $250. The value of the
lot subsequently increased, so that
at the death of her mother, in 1856,
it amounted to from $1000 to $1500,
irrespective of any improvements
made after the date of the will. The
acting executor had in his hands
about $700, being what remained of
the personal estate of the testatrix,
after payment of debts, &c. and all
her bequests, except those to the
Baptist church and the residuary
legatees. He had sold the real es-
tate to the defendant L. for $2600,
who was willing to take a convey-
ance and pay the purchase money,
if the court should determine that
the executor had power to sell and
convey the land, so as to give à good
title. After the date of the will,
and during the lifetime of the testa-
trix, a church was erected by the
Baptists in H., sufficient to accom-
modate all of that denomination re-
siding in that vicinity, to which the
testatrix contributed $50. Held,
1. That under the provisions of the
revised statutes relative to accumu-
lations (1 R. S. 773, 774, § 3) and the
decision of the court of appeals in
Williams v. Williams, (4 Selden,
525,) making those provisions ap-
plicable to bequests to religious so-
cieties, the direction for an accumu-
lation for the erection of a church
at H. was inoprative and void.
2. That donations to incorpora-
ted religious societies are exempt
from the provisions of the revised
statutes to prevent perpetuities.
3. That the legacy to the Baptist
church in Oliver street could not be

sustained, either as a contribution
towards building another church, or
to defray the expenses of the edifice
which was erected during the life-
time of the testatrix; inasmuch as
the bequest could not be effectuated
without violating the provisions of
the revised statutes against accu-
mulations, and because the pro-
posed object had been accomplished
through other means, in the lifetime
of the testatrix. 4. That although
the legacy to the Baptist church
was void, the power given to the ex-
ecutors to sell the real estate of the
testatrix was valid; and that L.
must complete his purchase.
son v. Lynt,

Wil-

124

6. A testator, by the 2d clause of his
will, devised a part of his homestead
farm to his three grandchildren,
Erastus, Mary E. and John Hover,
share and share alike, but subject to
the payment of debts and legacies,
and to the conditions thereinafter
stated. These conditions were, that
they, being minors, were not to take
said estate until they should several-
ly arrive at the age of twenty-one
years; with a further provision that
in case of the death of either before
that age and without issue, the sur-
vivors or survivor should take such
share; and in case of the death of
all, under age and without issue, it
should go to the testator's son John
in fee. The testator then directed
that during the minority of the
grandchildren his son John should
take charge of, and have the man-
agement of the said estate, and out
of the avails should support the
grandchildren and their mother;
and he appointed his son John their
guardian, and as such guardian he
was to have charge of their estate.
Out of the surplus of the avails of
the estate, over and above such sup-
port, (if any,) his son John was di-
rected to pay the debts and legacies
charged thereon; and, after doing
so, to invest at interest any surplus
that might remain, for the use and
benefit of the grandchildren, to be
paid over to them at the age of
twenty-one. He was not to be made
liable or accountable for losses in
the management of the estate, un-
less for gross neglect, &c. The tes-
tator also directed that so long as
Mary H., the mother of his said
grandchildren, and the widow of his

deceased son Peter, should remain
the widow of his son, she should re-
main in the testator's mansion house
and superintend the household af-
fairs, and be supported out of the
avails of the property devised to the
grandchildren. Held 1. That the in-
tent of the testator, as appearing
from the terms of the devise, was as
follows: 1. A devise of the real es-
tate to the three grandchildren, in
fee, to take effect in possession on
their arriving at the age of twenty-
one years. 2. In case either of them
should die before the age of twenty-
one and without issue, a devise over
to the survivors, and if they should
all die, to the testator's son John, in
fee. 3. A devise of the fee in trust,
by implication of law, to John, dur-
ing the minorities of the grand-
children, and until the youngest
grandchild should arrive at the age
of twenty-one years. 2. 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 minorities
of the grandchildren, was void, as
involving, necessarily, a suspense of
the power of alienation during the
minorities of the three grandchil-
dren. And that the trust was not
saved, as a valid trust, by the pro-
visions of section 55 of 1 R. S. 728.
3. That the whole devise, including
the illegal trust, was not so closely
interwoven, in its several parts, but
that the valid could be detached
from the void provisions, and pre-
served, without doing violence to
the testator's intentions. 4. That
the main devise to the infant grand-
children and to the testator's son
John, was valid; and that the same
took effect during the respective mi-
norities of the grandchildren, as well
as afterwards. And that the estate
vested in the grandchildren immedi-
ately on the death of the testator,
subject to be divested or determined
by their death under age and with-
out issue. 5. That the provision for
the residence of the mother of the
infant devisees in the mansion house
of the testator, and for her support
out of the avails of the estate, during
her widowhood, was valid. 6. That
during the minorities of the grand-
children the estate descended to the
infant devisees of the testator, sub-
ject to the charges named in the
will, including the charge for the

14. A testator, by the first clause of his
will, gave and bequeathed to various
relatives legacies amounting in the
whole to $11,000; and he directed
that such legacies be paid in such
order, and by such installments, or
otherwise, as his executors might
deem most for the interest of his
estate, and that they should pay in-
terest thereon from the time of his
death, half-yearly, until they should
be paid. He then gave and bequeath-
ed to M. M. $250 in quarterly pay-
ments, for life; and to the Roman
Catholic Orphan Asylum, in the city
of New York, $100 a year, until the
lapse of 21 years from the time of
the testator's death, or until the
death of the survivor of his two
youngest children living at the time
of his death. And he directed his
executors to apply, at their discre-
tion, $50 a year to the relief of the
poor of St. Mary's church, in Grand
street, New York, until the lapse of
21 years from his death, or until the
death of the survivor of his two
youngest children. The last threo
legacies and annuities were to be a
charge on the testator's leasehold
property No. 197 Chatham street.
By the seventh clause, in case he
should leave more than one child
him surviving, the testator divided
the rest, residue and remainder of
his estate, real and personal, into
so many equal shares as there were
children, and he gave one of said
shares, as applicable to cach child,
to his executors and the survivors
and survivor of them, his heirs and
assigns for ever, in trust for the
benefit of such children and their
issue. The testator left him surviv-

ing two children. His personal
estate was not sufficient, after the
payment of his debts, to pay in full
the legacies given by the will.
Held, 1. That the whole frame and
scheme of the will plainly showed
that the testator intended the lega-
cies to be paid absolutely, and at all
events; and that they were a charge
upon the whole real estate of the
testator; and if necessary his real
estate, other than the leasehold
interest in 197 Chatham street, must
contribute to the full payment
thereof. 2. That the legacies must
be paid, in full, before the residue
and remainder could be held and
applied upon the trusts and to the
uses declared in the seventh clause,
&c. 3. That the direction to the
executors to apply at their discre-
tion $50 a year to the relief of the
poor of St. Mary's church was valid,
and could be enforced. McLough-
lin v. McLoughlin,
458

15. A testator, by his will, gave and
devised to his wife J. all his estate,
real and personal, so long as she re-
mained his widow; making no dis-
position of the estate in remainder,
which accordingly descended to C.
his heir at law. The personal estate
proving insufficient to pay the debts,
J. the executrix applied to the sur-
rogate for authority to mortgage,
lease or sell the real estate of the
testator, for that purpose, and that
she be allowed to sell, in the first
instance, the reversionary interest
of C. therein. The petitioner claimed
that the estate in remainder should
be first sold, and the proceeds ap-
plied to the satisfaction of the debts;
or that the value of her life estate
in the premises should be computed
and ascertained upon the principles
applicable to annuities, and deduct-
ed from the proceeds of the sale,
and the residue applied to the satis-
faction of the debts, before any part
of the ascertained value of the pe-
titioner's life estate should be ap-
propriated to that object. The sur-
rogate made a decree authorizing.
a sale of the land, and directed that
the proceeds be applied to the pay-
ment of the debts; taking no notice
of, and giving no preference to, the
estate of J. as tenant for life, over
that of C. in remainder. Held that
the rule of distribution contended
for by J. was inconsistent with the

directions of the statute; and that
the decree of the surrogate was
right. Pelletreau v. Smith,
494

16. A testator, by his will, directed
that all his real and personal estate
should remain as it was at the time
of his death, for the exclusive use
of his wife and children who were
under age and unmarried, and should
be so managed by his executors as
would accomplish two objects; first,
the comfortable maintenance of his
wife; and second, the comfortable
maintenance of his children; that
nothing consisting of the character
of personal estate should be sold,
unless under the greatest necessity,
and then under the immediate di-
rection of the executors; that the
property, both real and personal,
should be so kept, and the income so
used, as might best subserve the ob-
jects above stated, as long as the tes-
tator's wife lived; and after her
death the whole of his estate should
be so occupied for the benefit of
his children who were under age
and unmarried, as might best pro-
moto the objects above mentioned;
that after the children were of full
age, and after the death of the wife,
all the property should be sold, and
the proceeds divided among the
children, as the law directs. That
if the widow should marry again
she should have no right or claim
to the estate, and should cease to
be executrix, and be "cut off" from
every portion of his estate. A lega-
cy of $500 was given S. Conrad, to
be paid to him after the death of
the testator's wife, and after the
testator's children should be of full
age, out of the moneys so realized
out of the sale of my estate." There
was no direct devise to the execu-
tors, nor any express trust, in words,
created, in them. Held, 1. That
after the payment of his debts, &c.
the testator intended that all his
property, real and personal, should
remain and be kept undisposed of
for the use of his wife and his chil-
dren under age and unmarried, dur-
ing the life of his wife, or until she
should marry again. 2. That the
testator also intended that all his
property should be kept, and re-
main undisposed of, after the mar-
riage or death of his widow, for the
use of such of his children as should
then be under age and unmarried.

3. That the testator intended his |
wife should use and receive, and
apply, the rents and income of all
the property to the support and
maintenance of herself and children
under age and unmarried, during
her life, or until she married again;
which was substantially a devise and
bequest of all his property, real and
personal, to her for such term, for
that use and purpose. 4. That so
far as such devise and bequest to
the wife were for the benefit of the
children under age and unmarried,
they involved an express trust, which
made her term inalienable during
the minority of the unmarried chil-
dren, or of an unmarried child; but
that as such inalienability could not
continue longer than her life, such
devise, and bequest, and trust, was
lawful and valid. 5. That the further
trust after the death or marriage of
the widow was not valid, as it might
have suspended the absolute power
of alienation, for a longer period
than during the continuance of two
lives. But that the invalidity of
that trust did not affect the validity
of the devise and bequest to the
widow; and there was, therefore,
by the will, a good and valid devise
and bequest to the widow, for life.
6. That all the property, or the pro-
ceeds of its sale, should be divided
or distributed, and the rights of all
the parties declared, upon the theory
that the will made no disposition of
the property after the death of the
widow, and that the same should be
treated, and be divided and distribu-
ted among the heirs and next of kin
of the testator, or those who had
succeeded to their interest by pur-
chase or otherwise, as an undisposed
of reversion. 7. That the real estate
of which the testator died seised
vested, on his death, in all his sur-
viving children, as his only heirs at
law, subject to the devise thereof
to his wife for the use of herself and
of the children under age and un-
married, and subject to the implied
power given to the surviving execu-
tor to sell, &c.; and that the rights
and interests of all the parties claim-
ing, by descent, purchase or other-
wise, must be declared, and the
proceeds of the sale, after the pay-
ment of the $500 legacy, must be
distributed, upon the theory that it
was so vested. 8. That the legacy
of $500 to S. Conrad was vested, not

contingent; that it did not lapse by
the death of the legatee before the
death of the widow; and that it
must be paid out of the proceeds
of the property, to the personal re-
presentatives of S. Conrad, &c., and
the remainder of the proceeds must
be distributed among the heirs and
next of kin of the testator, and those
claiming and entitled under and
through them. 9. That there was
no ground upon which the real
estate could be considered as con-
verted into money, from the death
of the testator. Williams v. Con-
rad,

524

17. A testator, by his will, directed his
executors to retain and invest, and
keep invested from time to time, one
sixth part of his estate, upon real
estate security, or in stocks, and to
apply and pay over the income
thereof, to his wife, during her life.
A portion of the trust fund was in-
vested by the trustee appointed in
the place of the executor, in the
capital stock of the National Bank.
The charter of the bank expired
January 1, 1857, and the bank reor-
ganized under the general banking
law. Preparatory to the reorgani-
zation. the bank made and declared
a dividend, over and above the par
value of the stock, of 18 per cent;
leaving it to the option of the stock-
holders to take stock in the new
bank, adding the said dividend of
18 per cent, or to take the same in
money. The trustee elected, instead
of money, to receive the dividend in
the new stock, and received the
same, and held the certificates there-
for. Held, that the testator intended
all the income of the property
which he ordered to be converted
should be paid to his wife, but that
the capital so invested should be
preserved. Simpson v. Moore, 637
18. Held also, that under the case of

Clarkson v. Clarkson, (18 Barbour,
646,) the payment of the 18 per cent
by the bank must be considered as a
dividend; but as it contained part
of what was held as capital, when
the stock was purchased, so much
thereof as was necessary to make
up the original investment, over and
above the par value of the stock
taken by the trustee in exchange,
should be retained by him; and
that the residue belonged to the
plaintiff.

ib