vania, California, Alabama and Dakota the same rule applies to personalty, also. Thus, if the accumulation is to commence on the creation of the estate the death of the settlor or the execution of the conveyance-it must be made for minors in being at the time of commencement, and must terminate on their majority. If it is to commence at any period subsequent to the creation of the estate, it must be within the time allowed by the statutes against perpetuities, and must commence at some time within the minority of the beneficiary and terminate at his majority.86 But in Alabama there may be an accumulation for ten years without regard to the minority of the beneficiary.87 The New York statute,88 authorizing an accumulation for the benefit of a minor, permits it only during his minority, and requires that when the period of accumulation ceases, the accumulated funds shall be released from further restraint and be paid over to the beneficiary absolutely. So a provision directing that the interest only of a fund which has been accumulating during a minority be paid to one beneficiary during his life, and the principal, upon his death, to another, is void.89 This is also the Pennsylvania rule.90 In Wis

86 Stimson's Am. Stat. Law, § 1443.

87 Ala. Code, (1876) § 2189.

88 N. Y. Rev. Stats. 726, § 37; 773, § 3; Laws, (1896) ch. 547, § 51; Laws, (1897) ch. 417, § 4.

89 Lowenhaupt v. Stanisics, 95 App. Div. (N. Y.) 171, 88 N. Y. Supp. 537; Pray v. Hegeman, 92 N. Y. 508; Hobson v. Hale, 95 N. Y. 588; St. John v. Andrews Inst., 191 N. Y. 254, 14 Ann. Cas. 708, 83 N. E. 981.

90 Schwartz's Appeal, 119 Pa. St. 337, 13 Atl. 212; In re Edwards, 190 Pa. St. 177, 42 Atl. 469.

In Pennsylvania the statute permits of accumulations only during an existing minority and for the benefit of the minor. To be lawful the accumulated fund must be paid to him upon arriving at the age of twenty-one. All other accumulations are void.-Wright's Estate, 227 Pa. St. 69, 75 Atl. 1026; Roney's Estate, 227 Pa. St. 127, 75 Atl. 1061.

consin, profits of real property can be accumulated only for specified purposes.91

§ 1177. The Same Subject: Charities.

In Wisconsin there may be accumulations for the benefit of a literary or charitable corporation for a term of twenty-one years.92 In New York funds held in a lawful trust by a college or literary corporation may be accumulated until the sum is sufficient for the purpose to which it is destined.93 But although charitable trusts form an exception to the common-law rule against accumulation, in all those states where there are statutes limiting the time of accumulation, charities will be governed by the statute unless expressly excepted therefrom.94 Thus, it is held in New York that although the beneficiary be a charity, a direction for the accumulation of interest for twelve years is void.95

§ 1178. Implied Directions to Accumulate.

Accumulations are forbidden no less where they result by indirection than where they are expressly ordered. Where the result in carrying into effect the provisions of the will is to produce accumulations beyond the period and not within the conditions prescribed by the statute, the directions resulting in such accumulations are void.96

91 Stats. Wis., §§ 2060-2063; In re Stark's Will, 149 Wis. 631, 134 N. W. 389. 92 Wis.

§ 2061.

Rev. Stats., (1878)

93 N. Y. Ann., 1846, ch. 74. 94 Perry, Trusts, §§ 392-400, 738; Martin v. Maugham, 14 Sim, 230; Kilpatrick v. Johnson, 15 N. Y. 322.

95 In re Starr, 2 Demarest (N. Y.) 141.

96 Craig v. Craig, 3 Barb. Ch. (N. Y.) 76; Weinmann's Estate, 223 Pa. St. 508, 72 Atl. 806; Neel's Estate, 252 Pa. St. 394, 97 Atl. 502.

The application of the income of a trust estate in the payment of mortgages constitutes an accumu

But if two different constructions may properly be made, the court will favor the one which renders the trust valid.97

A limitation over, not only of the capital of a fund directed to be invested for the payment of an annuity for life, but also of so much of the proceeds thereof as shall remain at the decease of the annuitant, is an implied direction to accumulate the surplus income.98 Where no disposition is made in a will as to a certain income, the testator must be deemed by his silence to have directed it to accumulate.99 However, if the testator directs the income of a fund to be distributed in a certain manner until a fixed period after his death and then the whole to be distributed, and there is no direction for accumulation, the fact that the income from the fund provided was more than sufficient to make the payments directed by the testator and that as a matter of fact accumulation did incidentally result, would not create a trust to accumulate.1

lation under the Revised Statutes of New York, and is invalid even though it takes the form of an extinguishment of indebtedness and is limited to the surplus income remaining after the payment of an annuity, and restricted to the lifetime of the annuitant.Hascall v. King, 162 N. Y. 134, 76 Am. St. Rep. 302, 56 N. E. 515.

Where no disposition is made in a will as to certain incomes the testator must be deemed by his silence to have directed it to accumulate. There is no legal objection to such a direction as to accumulations resulting from the

income of personal estate, but the statutes do not permit accumulations of the rents and profits of real estate except for certain specified uses.-Stats. Wis., §§ 20602063; In re Stark's Will, 149 Wis. 631, 134 N. W. 389.

97 Arthur v. Arthur, 3 App. Div. (N. Y.) 375, 38 N. Y. Supp. 1002. 98 Craig v. Craig, 3 Barb. Ch. (N. Y.) 76.

99 In re Stark's Will, 149 Wis. 631, 134 N. W. 389.

1 Hoadley v. Beardsley, 89 Conn. 270, 93 Atl. 535.

Where the income of a lunatic is more than can be properly ex

§1179. Effect of Trust to Accumulate for Longer Period Than Allowed by Rule or Statute.

The English rule is that where there is a trust or direction to accumulate income or profits for a period exceeding that allowed by statute, but within the common law rule as to perpetuities, it is held valid for the statutory period and void only as to the excess time. But if the period specified exceeds that allowed at common law for accumulations, which necessarily violates the statute, the trust or directions are invalid for any period whatsoever. Pennsylvania follows the English rule. In New York the statute provides that a direction to accumulate for a period longer than is permitted by statute is void only for the excess.5 This is the general rule where statutes have been passed on the subject.

pended for his use, it must of necessity be accumulated for him or his heirs, but that is not a trust which is prohibited by the statute.-Craig v. Craig, 3 Barb. Ch. (N. Y.) 76.

2 Matthews v. Keble, L. R. 3 Ch. App. 691; Evans v. Hellier, 5 Cl. & F. 114; Morgan v. Morgan, 4 De G. & Sm. 164; In re Errington, 76 L. T. N. S. 616; Frost v. Greatorex, L. R. 2 Ch. Div. (1900)

541.

3 Browne v. Stoughton, 14 Sim. 369; Pickford v. Brown, 2 Kay & J. 426; Turvin v. Newcome, 3 Kay & J. 16.

4 McKee's Appeal, 96 Pa. St. 277; Rhodes' Estate, 147 Pa. St. 227, 23 Atl. 553; Leisenring's Estate, 237 Pa. St. 60, Ann. Cas. 1914B, 84, 85 Atl. 80.

51 N. Y. Rev. Stats., p. 774, § 4.

6 French v. Calkins, 252 Ill. 243, 96 N. E. 877; Kimball v. Crocker, 53 Me. 263; Collector of Taxes v. Oldfield, 219 Mass. 374, 106 N. E. 1014; Wilson v. Odell, 58 Mich. 533, 25 N. W. 506; Hillyard v. Miller, 10 Pa. St. 326; Rhodes' Estate, 147 Pa. 227, 23 Atl. 553; Leisenring's Estate, 237 Pa. 60, Ann. Cas. 1914B, 84, 85 Atl. 80.

Where there is a direction in a trust for accumulations beyond the age of minority of the lega tees, this is unquestionably void. This fact, however, does not operate to destroy the trust in its creation, but merely to avoid the provision for the illegal accumu lations, with the result that the legatees after maturity would be entitled to receive the income of the trust funds. - Yates' Estate, 170 Cal. 254, 149 Pac. 555.

TABLE OF CASES OF VOLUME TWO

[References are to pages.]

Ackerman v. Fichter, 954, 1630, Alabone, Estate of, 1005.

(1697)