Thorn v. Coles , 3 Edw. Ch. 330 ( 1839 )

The Vice-Chancellor :

I concur generally in the views expressed in the written argument of the counsel for the guardian of the infants and for the female adults.

If a trust in the executors of the real estate directed to be purchased was intended by the will, that is, if the executors were to take the title in their names and to hold the property in trust, receive the rents and dispose of the nett income in the manner therein directed, it would be a trust for a purpose not authorized by the revised statutes. So, likewise, the trust as respects its duration, being for the lives of the eight children of the testator, would be objectionable as unduly suspending the power of alienation, it being clearly intended, by the will, that the estate so to be purchased should bé kept entire until the death of the longest liver of the eight persons.

So again, if, instead of a trust in the executors by taking the title in their names, they should take the title, in the first instance, in the names of the eight, childrenjointly for their lives, with remainders over, so as to carry out and effectuate the intention and object of this part of the will, then it would be equally objectionable as suspending the power of alienation beyond the period of two lives in being, &c., since, in that case, the property must be kept entire with a view to an equal division of of the nett income'so long as one of the eight children shall live. If, in making the investment of the one hundred thousand dollars, the executors were at liberty to take the title to themselves in equal undivided eighth parts for each child, in trust to apply the rents and profits to each for life and, at the death of any one child, to convey such share of the estate to his or her children in remainder in fee, so as to render such share then divisible from the rest and alienable or if they could take the title to the eight persons as tenants in common for life in equal shares, with remainder in fee of each undivided share to the child or children of any one dying or to their survivors in case of death of either childless—so that, upon the termina- . tion of the respective life estates, the remainder in such share might vest and the property be partitioned or the respective shares be sold in fee, then the difficulty would not exist.

But it seems to me that such a construction cannot be given-to this clause of the will; and that the executors are not authorized and this court cannot give them authority to carry it int0 effect in that way. I am, therefore, of opinion that the sixth clause of the will, directing the purchase of real estate to be held in the manner and for the purposes therein mentioned, is contrary to law and cannot be carried into effect by the executors.

- The next question then is, what shall be done with the one hundred thousand dollars ?

In my judgment, this money does not sink into the residue and pass to the residuary devisees of the will. Being the proceeds of land and intended by the testator to have been invested in land and, as such, disposed of, it is still to be regarded as land ; and where a devise of land fails by lapse or is otherwise void, the rule is that it does not pass to the residuary devisee, but descends to the heir at law : Chitty on Descents, 309.

This fund is, consequently, to be distributed by the executors among the eight children as heirs at law in equal parts.

The costs of all parties to this suit may be paid out of that fund. Decree accordingly.