Locke v. Farmers' Loan & Trust Co.

BARRETT, J.,

(concurring.) The appellants say that there must i necessarily be an actual severance of a proportionate part of the principal upon the death of each of the first beneficiaries, because the gift' ■of income to the second beneficiaries cannot take effect; such secondary -gifts of income to the corporations being void. Upon this, they contend that an original severance in' law is to be implied, because so imuch of the principal as may be thus released from the production of dncome must go somewhere. This amounts to saying that, even if Mr. •'Scoville intended no severance, and although he certainly made no iprovision with regard to the principal, yet the law will insist upon and ■ declare a severance, for the purpose of sustaining the trust. This is • carrying- the doctrine of severance to an impossible extreme. There uvas here, in reality, no “severance” of principal, and that expression is • misapplied. What the appellants mean is that, upon the death of each •original beneficiary, a proportionate part of the principal will be incidentally released. But that release would not result from an original ■severance, but simply from the further nonemployment of principal for ■the trust purpose. I do not mean to say that the appellants concede that Mr. Scoville intended no severance. They do insist that his indention was to create separate trusts of properly proportioned principal. Where I essentially differ'with them, however, is in finding such intention from the release of principal which may result from the void ■ gift of income to the corporations. No such intention can be inferred from a condition resulting solely from the trustor’s illegal purpose. On the contrary, the secondary gift of income to corporations plainly indi- • cotes an intention to keep the principal permanently employed, and to keep it, while so employed, in solido. I agree with the presiding justice that the judgment of the special term was correct, and should be, ■in all respects, affirmed, with costs.