Niles v. Mason , 126 Mich. 482 ( 1901 )

Grant, J.

(after stating the facts). 1. The evident intention of the testator was to follow the Palms will, which was in the main upheld in Palms v. Palms, 68 Mich. 355 (36 N. W. 419). The only real difference between the will of Mr. Palms and the will of Mr. Niles is the clause in the latter will by which he devised to his sister an annuity of $12.50 per month during her life, and burdened his entire estate with the payment of that annuity. No such provision is found in the will of Mr. Palms. With that provision eliminated, this case would fall directly within the Palms Case. The claim of the appellants is that this case is ruled by that of Dean v. Mumford, 102 Mich. 510 (61 N. W. 7). In that case the widow of the testator was given a life estate in the homestead, and the executors, who were in fact trustees, as in this case, were to pay the widow $1,500 per year during her life. It was there held, and in fact conceded, that the fifth clause of the will of Mr. Dean restrained alienation for the period of two lives in being. The question, therefore, was, Did the provision for the widow include another life, and render the subsequent provision void, under the statute against perpetuities ? It was held that it did. The construction cannot be influenced by the amount of the annuity. The same conclusion would have been reached in the Dean Case if thé annuity had heen $150 per year, as in this case, or $1,500, as in that. As in that case, so in this, the entire estate was burdened with the annuity; and, if necessary, the entire income must be appropriated to pay it. The circuit judge, in a written opinion, held that, if he applied the rule in the Dean Case, the will must fall. The circuit judge reached his conclusion by holding that section 9 of this will was of no force or effect, and should be considered as though not written in the will, because both of the children Charles .and Lottie were living at the time of his death, and that the provision for his sister, Sarah, would cease upon the •death of both children Charles and Lottie. In other words, he reads into section 4 a further contingency, viz., that if his children Charles and Lottie should die before his sister, then the annuity to his sister should cease. "We think the judge erred in this conclusion. The intent of the testator to provide this amount for his sister during her life is clear. The only condition upon which it was to cease was that she marry. This case is ruled by the Dean Case.

2. It is urged that the statute is aimed solely at the' alienation of land, and does not apply where the trustees are given the power to sell, although they are given the' power to tie up the proceeds of the sale beyond the time fixed by the statute. Thatcher v. St. Andrew's Church, 37 Mich. 264, is relied upon to sustain this contention. If the language there used be not considered in connection with the facts of the case, there would be much force in the contention. In that case, however, the trust ceased with the alienation of the land by the trustee, and the' trust was at an end. Such was also the case in Robert v. Corning, 89 N. Y. 225. A similar state of facts, existed in Henderson v. Henderson, 113 N. Y. 1 (20 N. E. 814), where the executor was given five years within which to partition the estate. The language of th& Thatcher Case clearly stated the law as applicable to its facts. It was not a case where the trustees were authorized to tie up the proceeds of the land beyond the limitations of the statute. This point was directly involved in the Palms Case, and, we think, settled the rule against the contention of the appellees. The power of alienation was expressly conferred upon the trustees, with the authority to reinvest the same in land or other property, according to their judgment. Justice Champlin, in his opinion, expressly repudiated the doctrine of the Thatcher Case as applicable to the Palms Case, and on page 385-gives his reasons in part as follows:

“ The statutes against perpetuities are directed against provisions in conveyances by will or deed which prevent the vesting of estates in the beneficiaries; and, when-such vesting is postponed beyond the limits allowed by law, the provision is void as being too remote. It can make no difference whether, during the time which shall elapse before it vests in the beneficiary, the estate vests in trustees, or is by them transferred to others than the beneficiary, and the proceeds and avails are held by the trustees subject to the trust. The policy of the law is. defeated unless the contingency happens when the estate shall vest in the beneficiary within the prescribed limits. There would be but little use in statute or common-law restrictions against perpetuities, and the tying up of estates to await the happening of future events, if they can be avoided by merely clothing the trustees with power of sale, but subjecting the proceeds to the trusts declared, and by this simple device such postponement of the vesting of contingent interests be validated.”

He then discusses the Thatcher Case, and cites many authorities to support his holding. This opinion was concurred in by Chief Justice Sherwood. Justice Morse, in his opinion, concurred in by Justice Campbell, does not discuss the question. His opinion is, however, based upon the theory that the statute against perpetuities is applicable, and the case was disposed of upon that theory. We are therefore of the opinion that that case disposes of the question; otherwise, the main contention would have been disposed of by holding, as is here claimed, that the power of alienation was conferred upon the trustees, and therefore the statute did not applyv

3. It does not follow that this will is void in toto. It was the clear intention of the testator to provide a life annuity for his sister. The subsequent provisions of the will, tying up the estate against the statute of perpetuities, do not invalidate this provision. Counsel for appellants seem to recognize this, for they state in their brief that they have executed a mortgage to the sister to secure this life annuity. It is unnecessary to tie up this entire estate, and prevent those who are entitled to it from receiving the full benefits thereof, during the lifetime of the sister. We think it entirely equitable and just that, upon the execution of a note or bond and mortgage upon real estate, satisfactory to the circuit judge, the trustee should be discharged, and the estate distributed among the children. Decree will be entered accordingly. Under the circumstances, we think no costs should be allowed to either party, either in this court or the court below.

The other Justices concurred.