A testator gave all his estate, real and personal, to his
executors for the term of twenty years, "in trust, and for the
uses, objects and purposes hereinafter mentioned," and authorized
them to make leases not extending beyond the twenty years, and to
lend money on mortgage for the same period, and, "after the
expiration of the trust estate vested in my executors and trustees
for the term of twenty years after my decease," devised and
bequeathed one-fourth part of all his estate, subject to the
payment of debts and legacies, to his widow, one-fourth to his
daughter, one-fourth to his brother, and one-fourth to nephew; gave
certain legacies and annuities to other persons; directed his
executors to pay a certain part of the income to his brother "until
the final division of my estate, which shall take place at the end
of twenty years after my decease, and not sooner;" that no part of
his estate should
"be sold, mortgaged (except for building) or in any manner
encumbered until the end of twenty years from and after my decease,
when it may be divided or sold for the purposes of making a
division between my devisees as herein directed;"
and also that, in the event of any of the legatees or annuitants
being alive at the end of the twenty years, there should then be a
division of all his estate,
"anything herein contained to the contrary notwithstanding, and
in such case my executors, in making division of the said estate,
shall apportion each legacy or annuity on the estate assigned to my
devisees, who are hereby charged with the payment of the same
according to the apportionment of my said executors;"
and further provided as follows:
"It is my will that my trustees aforesaid shall pay the several
gifts, legacies, annuities and charges herein to the persons named
in this will, and that no creditors or assignees or purchasers
shall be entitled to any part of the bounty or bounties intended to
be given by me herein for the personal advantage of the persons
named, and therefore it is my will that
Page 141 U. S. 297
if either of the devisees or legatees named in my will shall in
any way or manner cease to be personally entitled to the legacy or
devise made by me for his or her benefit, the share intended for
such devisee or legatee shall go to his or her children in the same
manner as if such child or children had actually inherited the
same, and in the event of such person or persons having no
children, then to my daughter and her heirs."
He also declared it to be his wish that W., one of his
executors, should collect the rents and have the general
supervision during the twenty years, and further provided that the
share devised to his daughter should be conveyed at the expiration
of the twenty years, for her sole use, to three trustees to be
chosen before her marriage by herself and the trustees named in the
will, and the net income be paid to her personally for life, and
the principal be conveyed after her death to her children or
appointees, and that, in the event of his wife's marrying again,
the share devised to her should be held by his trustees for her
sole use.
Held:
(1) That the powers conferred and the trusts imposed were
annexed to the office of executors, and that they took the legal
title in fee, to hold until they had divided the estate, or the
proceeds of its sale, among the devisees of the residue.
(2) That an equitable estate in fee in one-fourth of the residue
of the estate vested in the brother and the nephew, respectively,
from the death of the testator.
(3) That the limitation over, in case of alienation, was
intended to apply to the residuary devises, but was void because
repugnant to the estates devised.
(4) That by the law of Illinois, such an equitable estate could
not be taken at law or in equity, for the debts of the owner.
(5) That a conveyance thereof by such owner, in consideration of
an agreement of the grantee to buy up outstanding judgments against
the grantor and to sell the interest conveyed and pay one-half of
the net proceeds to the grantor's wife, no part of which agreement
was performed by the grantee, gave him no right which a court of
equity would enforce.
(6) That these conclusions were not affected by the following
facts: the daughter was married ten years after the death of the
testator, having first, by indenture with the trustees named in the
will, appointed them to be trustees for the benefit of herself and
her children. Just before the end of twenty years from the
testator's death, a mortgagee of all the real estate agreed with
the trustees under the will to postpone payment of the principal
and to reduce the rate of interest of the mortgage debt, provided
the whole estate should continue to be managed by W., and thereupon
the testator's widow, brother, nephew, daughter, and her husband,
individually, and the widow, brother and W., as trustees of the
daughter, made to W. a power of attorney, reciting that by the will
the testator devised his whole estate in trust for the period of
twenty years, which was about to expire, and upon the
termination
Page 141 U. S. 298
of that trust to the widow, brother, nephew and daughter in
equal parts, and that it was deemed advantageous to the devisees,
as well as to the mortgagee, that the estate should continue to be
managed as a whole, and therefore authorizing W. to take
possession, to collect rents, to pay taxes, debts against the
estate, and expenses of repairs and management, and to sell and
convey the whole or any part of the estate at his discretion.
These were appeals from a decree in equity by various persons
asserting claims to the real estate devised by Ira Couch, who died
January 28, 1857, to his brother, James, and to his nephew, Ira, by
his will dated November 12, 1855, and duly admitted to probate
March 21, 1857, by which he appointed his wife, Caroline E. Couch,
his brother, James Couch, and his brother-in-law, William H. Wood,
executors and trustees, and devised and bequeathed all his
property, real and personal, to them in trust for the term of
twenty years, and for certain uses and purposes, and then, after
payment of debts and legacies, in equal fourths, to his wife, to
his daughter and her children, to his brother, James, and to his
nephew, Ira, the son of James, with devises over in case of
alienation. The material provisions of the will are copied or
stated in the margin,
*
Page 141 U. S. 299
and so much of the facts as is necessary to the understanding of
the questions of law decided was as follows:
Page 141 U. S. 300
It was contended by some of the parties that the real estate
devised by this will was owned jointly by the testator and his
Page 141 U. S. 301
brother James. But upon the whole evidence it clearly appeared
that although James lived with the testator, and helped
Page 141 U. S. 302
him in his business, they were not partners, and, as James knew,
all the real estate was bought and paid for by the testator out of
his own money, and the deeds were taken in his name. The property
belonged to the testator, and James had no title in it, legal or
equitable, except under the will. Caroline E. Couch, the testator's
daughter, was married January 28, 1867, to George B. Johnson,
having before her marriage, and by indenture with the trustees
named in the
Page 141 U. S. 303
will, appointed them to be trustees for the benefit of herself
and her children under the twentieth clause of the will. Three
children of this marriage were born before 1877.
The testator left real estate worth about $1,000,000, consisting
of nine lots of land in the heart of the City of Chicago, on two of
which stood the Tremont House, and left personal property to the
amount of $11,000, and owed debts amounting to $112,000, besides
unpaid taxes on real estate. The trustees under the will -- Wood
collecting the rents and having the principal management --
improved the real estate so as to produce a large net income, until
the great fire of October, 1871, destroyed all the buildings. In
1872 and 1873, the trustees erected new buildings on the property
at an expense of $1,000,000, of which they borrowed $750,000 on
mortgage executed by the trustees, as well as by the widow, James,
Ira, and the daughter and her husband, individually, of all the
nine lots, payable November 1, 1877, with yearly interest at eight
percent.
On the completion of the new Tremont House, the trustees being
unable to find any person, not interested in the estate, who would
undertake to pay a fair rent and provide the necessary furniture, a
lease thereof was made on November 15, 1873, by the widow, James
Couch, and William H. Wood, as trustees under the will and as
trustees of the daughter, and by the widow, James, Ira, and the
daughter and her husband, individually, for ten years, to James
Couch, who agreed to furnish in and carry it on as an hotel, and to
pay one-tenth of the gross amount of his receipts therefrom until
February 1, 1877, to the widow and Wood as joint trustees with
himself under the will, and after that date to pay to the widow, to
Ira, and to the daughter's trustees three-fourths of such tenth,
retaining the other fourth himself. James Couch carried on the
hotel accordingly, but unsuccessfully, until January 18, 1879, when
his lease was terminated, and the hotel was leased to another
person.
In December, 1876, the mortgagee agreed with the trustees named
in the will to extend the term of payment of the principal of the
mortgage debt, and to reduce the rate of interest,
Page 141 U. S. 304
provided the whole estate should continue to be managed as
before, and Wood should remain in the principal charge and control
thereof.
On January 8, 1877, James Couch and wife, the testator's widow,
the daughter and her husband, and Ira and his wife, in their
individual names, and the widow, James Couch, and William H. Wood,
as trustees of the daughter, executed and delivered to Wood a power
of attorney, containing these recitals:
"Whereas, by the will of Ira Couch, deceased, all of his estate,
both real and personal, was devised and bequeathed to James Couch,
Caroline E. Couch, and William H. Wood, in trust, for the period of
twenty years from the time of his death, which period will expire
the twenty-eighth day of January, 1877, and, upon the termination
of said trust, to the said James Couch and Caroline E. Couch, and
to Ira Couch, son of said James Couch, and Caroline E. Johnson,
daughter of said testator and now the wife of George B. Johnson,
one-fourth thereof to each of said devisees, . . . and whereas the
said Caroline E. Johnson did, prior to her marriage and pursuant to
the provisions of said will, by her deed of trust appoint the said
James Couch, Caroline E. Couch, and William H. Wood trustees of all
her share and interest in said estate, and whereas, by reason of
the destruction of the buildings belonging to said estate, and
situate upon said lands, by fire, the said trustees under said will
have, as such trustees, incurred a large indebtedness in rebuilding
the same, and for other purposes beneficial to said estate, and
which indebtedness is a lien or encumbrance thereon, and whereas it
is deemed advantageous to the undersigned, devisees as aforesaid,
as well as to the creditors of said estate, that the same should,
from the time of the expiration of said period of twenty years, be
managed as a whole by some person appointed and agreed upon by the
parties interested, to the end that sales of said estate, or parts
thereof, may be made from time to time to meet the said
indebtedness, that said estate may in the meantime be kept rented,
and the income therefrom applied to the payment of the interest on
indebtedness, the taxes, premiums on insurance, and the expenses
for repairs, and for the management of the estate."
This power accordingly
Page 141 U. S. 305
authorized Wood, on and after January 28, 1877, to enter upon
and take possession of all the real estate devised, to rent it, and
to collect the rents, and also all arrears of rent under leases
made by the trustee under the will, to pay taxes and assessments,
and the interest and principal of debts against the estate, and all
expenses of repairs, preservation, and management thereof, and to
borrow money when necessary for these purposes, and to sell and
convey the whole or any part of the estate whenever and upon such
terms as in his judgment should be for the best interest of the
constituents, and provided that it should be irrevocable, except
that after January 28, 1880, a majority of them, or, on giving six
months' notice in writing, any one of them might "revoke this power
of attorney and annul this agreement."
By reason of the embarrassment caused by the financial panic of
1873, the real estate depreciated in value, so that it was worth
less than the sum due on the mortgage, and during the years 1876,
1877, and 1878 the income was insufficient to pay the interest on
the mortgage debt, taxes, insurance, and expenses. The estate
afterwards increased in value until 1884, when the income had
become sufficient to pay annual expenses and interest and a large
part of the principal.
The testator's debts, and the legacies given by the twelfth and
thirteenth clauses of the will, as well as the annuities to the
testator's sister and to his mother-in-law under the seventh and
eighth clauses, were all duly paid before 1877, those annuitants
having died before that time. The annuities to his widow and
daughter under the tenth clause were paid until the fire of
October, 1871, but were not paid in full after \wards, and his
brother, James, was paid more than his share of the income under
the eleventh clause.
The estate was never divided by the executors among the devisees
of the residue, because of the impossibility of making partition of
the most valuable lots, or of selling them except at a great
sacrifice. On February 15, 1879, judgments to the amount of $6,000
were recovered against James Couch in a court of the State of
Illinois on debts contracted since January 28, 1877, and
executions
Page 141 U. S. 306
thereon were forthwith taken out and returned unsatisfied. On
February 24, 1879, one Sprague, who recovered two of those
judgments, amounting to $1,097.85, brought a suit in equity in that
court, upon which a receiver was appointed, to whom, by order of
that court, on March 29, 1879, James Couch executed a deed of all
property, equitable interests, things in action, and effects
belonging to him. In 1881 and 1882, James Couch's undivided fourth
of the real estate devised was levied on and sold by the sheriff on
pluries executions issued on Sprague's judgments at law.
On May 10, 1879, one Brown, as trustee for Howard Potter,
recovered judgment in the circuit court of the United States
against James Couch for $15,038.92 on a debt contracted in 1874,
and in 1881 caused an alias execution thereon to be levied on the
same undivided fourth, and purchased the same at the marshal's sale
on execution.
On February 9, 1881, James Couch and Elizabeth G. Couch, his
wife, executed a deed of all their interest in that fourth to
William E. Hale, expressed to be for a nominal consideration, but
the real consideration for which was a contemporaneous agreement
between the wife and Hale, by which Hale agreed to buy up the
judgments existing against James Couch, and to sell the interest
conveyed to him by the deed, and, after reimbursing himself for his
expenses, to pay one-half of the proceeds to her, and hold the
other half to his own use. Hale bought up the judgments recovered
February 15, 1879, being about one-third of the judgments against
Couch, as well as the title under the sheriff's sale aforesaid; but
on November 16, 1882, sold them again to Potter, and never bought
up any of Potter's claims or paid anything to Elizabeth G.
Couch.
Ira Couch, the testator's nephew, came of age January 9, 1869,
and never had any children. His interest in the estate of the
testator was conveyed by him, being insolvent, on January 29, 1877,
to one Dupee, as a trustee for his creditors, with authority to
sell at private sale; by Dupee, on November 26, 1881, to one
Everett, in consideration of the sum of $1,000 paid by Elizabeth G.
Couch, mother of Ira; by Everett, on November 28, 1881, to her, and
by her, on February 28, 1886, back to Ira.
Page 141 U. S. 307
On March 9, 1885, Caroline E. Johnson, the testator's daughter,
conveyed to her husband all right, title, and interest she might or
could have in real estate under the nineteenth clause of the will.
On July 5, 1885, she died, leaving her husband and three children
surviving her.
On July 14, 1884, James Couch, Caroline E. Couch, and William H.
Wood, being the executors and trustees, and the first two of them
devisees named in the will, filed a bill in equity in the state
court to obtain a construction thereof, to which Caroline E.
Johnson and her husband and children, Elizabeth G. Couch, Potter,
Hale, Ira Couch, the judgment creditors of James Couch, and the
receiver appointed in Sprague's suit in equity, were made
parties.
On August 4, 1884, Potter filed in the circuit court of the
United States a bill for partition of the real estate of the
testator, making all other parties interested defendants. On
October 23, 1884, the bill for the construction of the will, and on
May 15, 1885, the bill of Sprague, were removed into that court. On
August 3, 1885, these three causes were consolidated by order of
the court, and on November 18, 1887, after the various parties had
filed answers stating their claims, it was ordered that each answer
might be taken and considered as a cross-bill.
No question was made as to the share devised to the wife by the
second clause, or as to the share devised to the daughter and her
children by the third and twentieth clauses of the will.
The claims to the various parties to the shares devised to the
testator's brother, James, by the fourth clause, and to the
testator's nephew, Ira, by the fifth clause, were as follows:
Potter claimed the share of James under the judgments and the
sales on execution against him.
Hale claimed the same share under the deed to him from James and
wife.
James claimed his share under the fourth clause of the will.
Ira claimed his share under the fifth clause, and also claimed
the share of James, on the ground that, by reason of the
alienations thereof to Potter and to Hale, the devise over in the
nineteenth clause to his children took effect.
Page 141 U. S. 308
The daughter's husband and her children, respectively, claimed
the shares of both James and Ira, contending that, by reason of the
alienations thereof, they vested, under the ultimate devise over in
the nineteenth clause, in the daughter and her heirs, the husband
claiming under his wife's deed to him, and the children claiming
under the twentieth clause of the will be reason of her death.
By the decree it was declared that the devised estate vested at
the expiration of twenty years from the testator's death,
one-fourth in fee in the widow, one-fourth in fee in James,
one-fourth in fee in Ira, and the remaining fourth in the daughter
for life, with remainder in fee to her children, and the claims of
Potter, of Hale, and of the daughter's husband and children to the
shares of James and of Ira, and of Ira to the share of James, were
disallowed. Potter, Hale, the daughter's husband, and her children,
respectively, appealed from the disallowance of their claims, and
James Couch appealed from so much of the decree as declared that
legal title under the residuary devises vested at the expiration of
twenty years from the testator's death. The five appeals were
submitted together on printed briefs and arguments.
Page 141 U. S. 309
MR. JUSTICE GRAY, after stating the facts as above, delivered
the opinion of the Court.
The matters in controversy concern those shares only of Ira
Couch's real estate which he devised to his brother, James, and to
his nephew, Ira, the son of James.
1. In order to ascertain the nature and the time of vesting of
their interests, it is important, in the first place, to determine
the extent and duration of the trust estate of the executors and
trustees named in the will, bearing in mind the settled rule that
whether trustees take an estate in fee depends upon the
requirements of the trust, and not upon the insertion of words of
inheritance.
Doe v.
Cosidine, 6 Wall. 458;
Young v. Bradley,
101 U. S. 782;
Kirkland v. Cox, 94 Ill. 400.
In the first clause of the will, the testator appoints his wife,
his brother, James, and his brother-in-law, Wood, "executors and
trustees" of his will, and devises and bequeaths to them all his
estate, real and personal,
"for the term of twenty years, in trust, and for the uses and
objects and purposes hereinafter mentioned and expressed, and for
the purpose of enabling them more fully to carry into effect the
provisions of this will, and for no other use, purpose, or
object;"
authorizes them to lease his real estate at their discretion,
and, out of any surplus funds, to improve his real estate, to
purchase other real estate to be held upon the same trusts and to
lend money on bond and mortgage; but in order that their doings may
not create any obstacle to the division of his real estate at the
end of the twenty years, provides that they shall not make leases
or lend money on mortgage beyond twenty years, or purchase or
improve by building after sixteen years from his death, and he also
authorizes them to mortgage real estate for the purpose of
rebuilding in case of destruction by the elements.
In the next four clauses, he devises and bequeaths to his widow,
daughter, brother, and nephew, respectively, "after the expiration
of the trust estate vested in my executors and trustees for the
term of twenty years after my decease," one-fourth part of all his
estate, both real and personal, after payment of
Page 141 U. S. 310
debts and legacies, which he charges upon the real estate. In
the eleventh clause, he directs his executors to pay to his brother
a certain part of the income "until the final division of my
estate, which shall take place at the end of twenty years after my
decease, and not sooner." And in the twenty-first clause, he
declares his wish that Wood shall collect the rents and have the
general care and supervision of the affairs of the estate during
the same period. These provisions, had the testator said nothing
more upon the subject, might have been construed as assuming or
implying that the trust estate was to terminate at the end of
twenty years from the testator's death, without any act of
conveyance on the part of the trustees. But the will contains other
provisions concerning the powers and duties of the trustees which
are wholly inconsistent with such a conclusion.
The sixteenth clause is as follows:
"I will and direct that no part of my estate, neither the real
nor the personal, shall be sold, mortgaged (except for building),
or in any manner encumbered until the end of twenty years from and
after my decease, when it may be divided or sold for the purpose of
making a division between my devisees as herein directed."
The very object of this clause is to define when and for what
purposes the trustees may mortgage or may sell the real estate.
Before the end of twenty years, it is neither to be mortgaged
(except for building, as allowed in the first clause) nor to be
sold. At the end of twenty years, all authority to mortgage it is
to cease, but "it may be divided or sold for the purposes of making
a division between my devisees as herein directed." This division
or sale (like all sales or mortgages spoken of in this clause) is
evidently one to be made by the trustees under authority derived
from the testator, and while the legal title remains in them; not a
judicial division or sale for the purpose of partition after the
legal title has passed to the residuary devisees. Again, in the
eighteenth clause the testator directs that in the event of any of
the legatees' or annuitants' being alive at the end of twenty years
after his death, there shall be a division of all his estate at
that time, "anything herein contained
Page 141 U. S. 311
to the contrary notwithstanding," and that
"in such case, my executors, in making division of the said
estate, shall apportion each legacy or annuity on the estate
assigned to my devisees, who are hereby charged with the payment of
the same according to the apportionment of my said executors."
This clause puts beyond doubt the intention of the testator not
only that the division of his estate, and the assignment and
conveyance of the several shares to each devisee, shall be made by
his executors, but that the question which share shall be charged
with the payment of any legacy or annuity shall depend upon the act
of executors in making the division among the devisees.
Although at the expiration of twenty years from the testator's
death, all the legacies and annuities to others than the residuary
devisees had in fact been paid, yet the duty still remained in the
executors and trustees to make a division, by sale if necessary.
Under the circumstances of this case, it was impracticable to make
the division, either by the partition of the lands themselves or by
selling them and distributing the proceeds, immediately upon the
expiration of the twenty years, and until a division was made in
one form or the other by the executors and trustees, the legal
title must remain in them. The sale and conveyance by them, whether
directly to the residuary devisees, or to third persons for the
purpose of paying the proceeds to those divisees, was not in the
exercise of a power over an estate vested in other persons, but was
for the purpose of terminating an estate vested in the executors
and trustees themselves by conveying it to others. The twentieth
clause, by which the daughter's share, in case of her marriage, is
to be conveyed at the expiration of the twenty years by the
trustees named in the will to trustees for the benefit of herself
and her children, and the twenty-second clause, by which the share
of the widow, in case of her marrying again, is to be held by the
executors and trustees in trust for her, are also worthy of notice
in this connection, although they might not, standing alone, affect
the time of vesting of the legal title in the shares of the brother
and the nephew.
Wellford v. Snyder, 137 U.
S. 521.
Page 141 U. S. 312
There can be no doubt that all the powers conferred, and all the
trusts imposed, were annexed to the office of executors, and not to
a distinct office of trustees. And, taking the whole will together,
it is quite clear that the legal title of the executors and
trustees did not absolutely terminate upon the expiration of twenty
years from the death of the testator, because it was necessary for
the purpose of enabling them to execute the trusts, and to carry
out the provisions of the will, that the legal title should be and
continue in them until they had, by sale or otherwise, settled the
estate, and conveyed to the devisees severally their shares in the
estate or its proceeds. The testator doubtless intended that after
the expiration of the twenty years the estate should cease to be
held and managed by his executors and trustees as a whole, and
should be divided into four parts, to be held in severalty by or
for his residuary devisees. But he intended and expressly provided
that the division should be made by his executors and trustees, and
therefore their trust estate could not terminate until they had
made the division and conveyed the shares.
McArthur v.
Scott, 113 U. S. 340,
113 U. S. 377;
Kirkland v. Cox, 94 Ill. 400; Perry, Trusts, §§ 305, 315,
320. Whether, in case of unreasonable delay on their part to make
the division, a court of equity might have compelled them to do so
is a question not presented by this record.
The decision of the Supreme Court of Illinois in
Kirkland v.
Cox, above cited, is much in point. In that case, the testator
devised and bequeathed all his estate, real and personal to
trustees, to control and manage it and to make such disposition of
it as should in their judgment increase its value; to pay to his
daughter such installments as they should deem sufficient for her
support until she reached the age of thirty-five years, and then to
convey the estate to her in fee, authorizing them, however, if she
should be then married to a man whom they thought unworthy, to
continue to hold the title in trust during his life, and further
providing that, if she died without issue, the whole estate, after
paying certain legacies, should "be divided equally between" three
charitable corporations. It was held that the powers conferred on
the trustees implied
Page 141 U. S. 313
a power to sell the lands, and convert them into money or
interest-bearing securities, and therefore that the trustees took
and held the title in fee simple, notwithstanding the death of the
daughter before reaching the age of thirty-five years, the court
saying:
"The power implied to sell is to sell the whole title, and to
this essential the power to convey that title, requiring, as a
condition precedent, a fee simple estate in the trustees. The
property is devised to the trustees to sell and convey if they deem
it advisable, or to hold and control until it is to be transferred
as directed, and in the contingency that has arisen, it was
intended that it should be the duty of the trustees to make the
equal division of the property between the corporations designated
and convey it accordingly, for the grant to these corporations is
in severalty, and not as tenants in common, and their title must
necessarily rest on the conveyance of the trustees."
94 Ill. 415.
The cases cited against this conclusion differ widely from the
case at bar. The two most relied on were
Minors v.
Battison, L.R. 1 App.Cas. 428, in which the facts were very
peculiar, and there was much diversity of opinion among the judges
before whom it was successively brought, and
Manice v.
Manice, 43 N.Y. 303, in which the construction adopted was the
only one consistent with the validity of the will under the
statutes of New York.
2. From this view of the nature and duration of the estate of
the trustees it necessarily follows that by the terms of the fourth
and fifth clauses of the will, devising and bequeathing to the
testator's brother and nephew, respectively, "after the expiration
of the trust estate vested in my executors and trustees,"
"one-fourth part of all my estate, both real and personal" (after
the payment of debts and legacies, which he charged upon the real
estate), no legal title in any specific part of the estate, and no
right of possession, vested in either of them until the trustees
had divided the estate, and conveyed to each of them one-fourth of
the estate, or of the proceeds of its sale; but, on well settled
principles, an equitable estate in fee in one-fourth of the residue
of the testator's whole property vested in the brother and in the
nephew, respectively, from the death of
Page 141 U. S. 314
the testator.
Copley v.
Cooper, 19 Wall. 167;
McArthur v. Scott,
113 U. S. 340,
113 U. S. 378,
113 U. S. 380;
Phipps v. Ackers, 9 Cal. & Fin. 583;
Weston v.
Weston, 125 Mass. 268;
Nicoll v. Scott, 99 Ill. 529;
Scofield v. Olcott, 120 Ill. 362.
To the suggestion that the will violated the rule against
perpetuities, which prohibits the tying up of property beyond a
life or lives in being and twenty-one years afterwards, it is a
sufficient answer that after twenty years from the death of the
testator, and after the death of the widow and daughter (if not
before), the title, legal and equitable, in the whole estate would
be vested in persons capable of conveying it.
Waldo v.
Cummings, 45 Ill. 421;
Lunt v. Lunt, 108 Ill.
307.
3. Nor is the estate of the residuary devisees affected by the
nineteenth clause of the will, which is in these words:
"It is my will that my trustees aforesaid shall pay the several
gifts, legacies, annuities, and charges herein to the persons named
in this will, and that no creditors or assignees or purchasers
shall be entitled to any part of the bounty or bounties intended to
be given by me herein for the personal advantage of the persons
named, and therefore it is my will that if either of the devisees
or legatees named in my will shall in any way or manner cease to be
personally entitled to the legacy or devise made by me for his or
her benefit, the share intended for such devisee or legatee shall
go to his or her children in the same manner as if such child or
children had actually inherited the same, and in the event of such
person's or persons' having no children, then to my daughter and
her heirs."
The devise over in this clause cannot, indeed, by reason of the
words, "gifts, legacies, annuities, and charges" and "bounty or
bounties" in the preamble be confined to the legacies and annuities
given by the testator and charged on his real estate by clauses 6
to 13, inclusive, and by clause 18. So to hold would be utterly to
disregard the comprehensive and decisive words, "devisees or
legatees," "legacy or devise," and "share intended for such devisee
or legatee," by which the testator clearly manifests his intention
that the devise over shall attach to the shares of his real estate
devised
Page 141 U. S. 315
to his widow, daughter, brother, and nephew, respectively, by
clauses 2, 3, 4, and 5, except so far as its effect upon the shares
of the daughter and the widow may be modified by the trusts created
for their benefit by clauses 20 and 22.
The testator having declared his will that the devises of the
shares shall be "for the personal advantage of" the devisees, and
that "no creditors or assignees or purchasers shall be entitled to
any part," and having directed the devise over to take effect "if
either of the devisees shall in any way or manner cease to be
personally entitled to the devise made for his benefit," the devise
over of the shares of the brother and the nephew, if valid, would
take effect upon any alienation by the first devisee, whether
voluntary or involuntary, by sale and conveyance, by levy of
execution, by adjudication of bankruptcy, or otherwise, or at
least, upon any such alienation before his vested equitable estate
became a legal estate after the expiration of the twenty years. But
the right of alienation is an inherent and inseparable quality of
an estate in fee simple. In a devise of land in fee simple,
therefore, a condition against all alienation is void because
repugnant to the estate devised. Co.Litt. § 360;
id.,
206b, 223a; 4 Kent Com. 131;
McDonogh v.
Murdoch, 15 How. 367,
56 U. S. 373,
56 U. S. 375,
56 U. S. 412.
For the same reason, a limitation over, in case the first devisee
shall alien, is equally void whether the estate be legal or
equitable.
Howard v. Carusi, 109 U.
S. 725;
Ware v. Cann, 10 B. & C. 433;
Shaw v. Ford, 7 Ch.D. 669;
In re Dugdale, 38
Ch.D. 176;
Corbett v. Corbett, 13 P.D. 136;
Steib v.
Whitehead, 111 Ill. 247, 251;
Kelley v. Meins, 135
mass. 231, and cases there cited. And on principle, and according
to the weight of authority, a restriction, whether by way of
condition or of devise over, not forbidding alienation to
particular persons or for particular purposes only, but against any
and all alienation whatever during a limited time, of an estate in
fee is likewise void, as repugnant to the estate devised to the
first taker, by depriving him during that time of the inherent
power of alienation.
Roosevelt v. Thurman, 1 Johns.Ch.
220;
Mandlebaum v. McDonell, 29 Mich. 78;
Page 141 U. S. 316
Anderson v. Cary, 36 Ohio St. 506;
Twitty v.
Camp, Phil.Eq. 61;
In re Rosher, 26 Ch.D. 801.
The cases most relied on as tending to support a different
conclusion are two decisions of this Court not upon devises of real
estate, but upon peculiar bequests of slaves at times and places at
which they were considered personal property.
Smith v.
Bell, 3 Pet. 68;
Williams v.
Ash, 1 How. 1. In
Smith v. Bell, the
general doctrine was not denied, and the decision turned upon the
construction of the words of a will by which a Virginia testator
bequeathed all his personal estate (consisting mostly of sieves) to
his wife, "to and for her own use and benefit and disposal
absolutely, the remainder of said estate, after her decease, to be
for the use of" his son. This was held to give the son a vested
remainder, upon grounds summed up in two passages of the opinion,
delivered by Chief Justice Marshall, as follows:
"The limitation in remainder shows that, in the opinion of the
testator, the previous words had given only an estate for life.
This was the sense in which he used them."
6 Pet.
31 U. S. 76.
"he limitation to the son on the death of the wife restrains and
limits the preceding words so as to confine the power of absolute
disposition, which they purport to confer, of the slaves, to such a
disposition of them as may be made by a person having only a life
estate in them."
6 Pet.
31 U. S. 84.
In
Williams v. Ash, a Maryland testatrix bequeathed to
her nephew all her negro slaves, naming them,
"provided he shall not carry them out of the State of Maryland
or sell them to anyone, in either of which events I will and devise
the said negroes to be free for life."
One of the slaves was sold by the nephew, and, upon petition
against the purchaser, was adjudged to be free. As stated by Chief
Justice Taney in delivering the opinion of the Court, and
recognized in the statute of Maryland of 1809, c. 171, therein
cited:
"By the laws of Maryland as they stood at the date of this will
and at the time of the death of the testatrix, any person might, by
deed or last will and testament, declare his slave to be free after
any given period of service or at any particular age, or upon the
performance of any condition, or on the event of any contingency.
"
Page 141 U. S. 317
1 How. 13; 3 Kilt's Laws. The condition or contingency,
forbidding the slaves to be sold or carried out of the state, was,
as applied to that peculiar kind of property, a humane and
reasonable one. The decision really turned upon the local law, and
appears to have been so understood by the court of appeals of the
state in
Steuart v. Williams, 3 Md. 425. Chief Justice
Taney indeed, going beyond what was needful for the ascertainment
of the rights of the parties, added:
"But if instead of giving freedom to the slave, he had been
bequeathed to some third person, in the event of his being sold or
removed out of the state by the first taker, it is evident upon
common law principles that the limitation over would have been
good,"
citing
Doe v. Hawke, 2 East, 481. But the case cited
concerned an assignment of a leasehold interest only, and turned
upon the construction of its particular words, no question of the
validity of the restriction upon alienation being suggested by
counsel or considered by the court, and the dictum of Chief Justice
Taney, if applied to a conditional limitation to take effect on any
and all alienation, and attached to a bequest of the entire
interest, legal or equitable, even in personalty, is clearly
contrary to the authorities.
Bradley v. Peixoto, 3 Ves.Jr.
324, Tudor's Leading Cases on Property (3d ed.) 968, and note;
In re Dugdale, 38 Ch.D. 176;
Corbett v. Corbett,
13 P.D. 136;
Steib v. Whitehead, 111 Ill. 247, 251;
Lovett v. Gillender, 35 N.Y. 617.
The case at bar presents no question of the validity of a
proviso that income bequeathed to a person for life shall not be
liable for his debts, such as was discussed in
Nichols v.
Levy, 5 Wall. 433; in
Nichols v. Eaton,
91 U. S. 716, and
in
Spindle v. Shreve, 111 U. S. 542. In
Steib v. Whitehead, above cited, the Supreme Court of
Illinois, while upholding the validity of such a proviso, said:
"We fully recognize the general proposition that one cannot make
an absolute gift or other disposition of property, particularly an
estate in fee, and yet at the same time impose such restrictions
and limitations upon its use and enjoyment as to defeat the object
of the gift itself; for that would be in effect to give and not to
give in the same breath. Nor do we at all question the general
principle
Page 141 U. S. 318
that upon the absolute transfer of an estate, the grantor
cannot, by any restrictions or limitations contained in the
instrument of transfer, defeat or annul the legal consequences
which the law annexes to the estate thus transferred. If, for
instance, upon the transfer of an estate in fee, the conveyance
should provide that the estate thereby conveyed should not be
subject to dower or curtesy, or that it should not descend to the
heirs general of the grantee upon his dying intestate, or that the
grantee should have no power of disposition over it, the provision
in either of these cases would clearly be inoperative and void
because the act or thing forbidden is a right or incident which the
law annexes to every estate in fee simple, and to give effect to
such provisions would be simply permitting individuals to abrogate
and annul the law of the state by mere private contract. This
cannot be done."
111 Ill. 251.
The restraint sought to be imposed by the nineteenth clause upon
any alienation by the brother or by the nephew of the share devised
to him in fee being void for repugnancy, it follows that upon such
alienation, or upon an attempt to alienate, his estate was not
defeated, and no title passed under the devise over either to the
nephew in the share of the brother or to the daughter or her
children in the share of the brother or of the nephew, and
therefore nothing passed by the daughter's deed to her husband.
For the reasons already stated, the appeal of the nephew, Ira
Couch from so much of the decree below as declared the legal title
under the residuary devises to have vested at the expiration of
twenty years from the testator's death is well taken, and the
equitable estate in fee in one-fourth of the residue of the
testator's property, having vested in Ira Couch from the death of
the testator, passed by his deed of assignment to Dupee, and by
mesne conveyances back to him.
The various alienations of the share of the brother, James
Couch, require more consideration.
4. The appellant Potter claims the share of James Couch under
proceedings against him by his creditors at law and in equity, the
effect of which depends upon the statutes of Illinois.
Page 141 U. S. 319
As we have already seen, the legal title in fee was vested in
the trustees not under a passive, simple, or dry trust, with no
duty except to convey to the persons ultimately entitled, but under
an active trust, requiring the continuance of the legal title in
the trustees to enable them to perform their duties, and until the
trustees had divided the property, either by conveying the lands to
the residuary devisees or by selling them and distributing the
proceeds among those devisees, James Couch had only an equitable
interest in the testator's whole estate, and no title in any
specific part of his property, real or personal. Such being the
facts, it is quite clear that the trust was not executed, so as to
vest the legal title in him, by the statute of uses of Illinois.
Hurd's Rev.Stat. 1874, c. 30, § 3;
Meacham v. Steele, 93
Ill. 135;
Kellogg v. Hale, 108 Ill. 164.
It is equally clear that such an equitable interest was not an
estate on which a judgment at law would be a lien, or an execution
at law could be levied, under the Illinois statute of judgments and
executions, although the term "real estate," as used in that
statute, is declared to include "lands, tenements, hereditaments,
and all legal and equitable rights and interests therein and
thereto." Hurd's Rev.Stat. c. 77, §§ 1, 3, 10;
Brandies v.
Cochrane, 112 U. S. 344;
Baker v. Copenbarger, 15 Ill. 103;
Thomas v.
Eckard, 88 Ill. 593;
Haward v. Peavey, 128 Ill.
By the Chancery Act of Illinois,
"whenever an execution shall have been issued against the
property of a defendant on a judgment at law or equity and shall
have been returned unsatisfied in whole or in part, the party suing
out such execution may file a bill in chancery against such
defendant and any other person to compel the discovery of any
property or thing in action belonging to the defendant and of any
property, money, or thing in action due to him or held in trust for
him, and to prevent the transfer of any such property, money, or
thing in action, or the payment or delivery thereof, to the
defendant except when such trust has in good faith been created by
or the fund so held in trust has proceeded from, some person other
than the defendant himself."
Hurd's Rev.Stat. c. 22, § 49.
Page 141 U. S. 320
This statute, as has been adjudged by this Court, establishes a
rule of property, and not of procedure only, and applies to all
cases where the creditor or his representative is obliged, by the
nature of the interest sought to be reached, to resort to a court
of equity for relief, as he must do in all cases where the legal
title is in trustees, for the purpose of serving the requirements
of an active trust, and where consequently the creditor has no
lien, and can acquire none at law, but obtains one only by filing a
bill in equity for that purpose. The words "in trust," as used in
the exception or proviso, cannot have a more restricted meaning
than the same words in the enacting clause.
Spindle v.
Shreve, 111 U. S. 542,
111 U. S.
546-547;
Williams v. Thorn, 70 N.Y. 270, 277;
Hardenburgh v. Blair, 30 N.J.Eq. 645, 666.
As the only title of James Couch in the property devised was an
equitable interest, which could not lawfully have been taken on
execution at law against him, and as the trust was an active trust,
"in good faith created by," and "the fund so held in trust
proceeded from," the testator, "a person other than the defendant
himself," the letter and the spirit of the statute alike require
that this equitable interest should not be charged for his debts.
It follows that neither the judgments and executions at law nor the
suits in equity against James Couch gave any lien or title to his
creditors, and that the deed from him to a receiver was wrongly
ordered by the state court in which one of the suits was commenced,
and was rightly set aside by the circuit court since the removal of
that suit.
5. The appellant Hale claims the share of James Couch under a
deed from him and his wife. The interest conveyed by that deed
being an equitable interest only, Hale requires the aid of a court
of equity to perfect his title, and would have to seek it by
cross-bill but for the order of the circuit court that each answer
should be taken as a cross-bill. The real consideration of that
conveyance was an agreement by which Hale promised to buy up the
existing judgments against James Couch, to sell the interest
conveyed by the deed of James and wife, and to pay to the wife
one-half of the net proceeds. In
Page 141 U. S. 321
fact, he bought up some of the judgments only, and sold those
again, and never performed his agreement in this or any other
particular. Consequently he is not entitled to the affirmative
interposition of a court of equity to obtain the interest included
in the deed.
Towle v. Ambs, 123 Ill. 410.
6. It remains only to consider the contention that by the
instrument of January 8, 1877, the devisees entered into an
agreement by which they took the whole estate as tenants in common,
and rendered any division unnecessary, and therefore all the duties
of the trustees ended, and the legal title vested in the residuary
devisees at the expiration of the twenty years. Undoubtedly those
interested in property held in trust, and ultimately entitled to
the entire proceeds, may elect to take the property in its then
condition and to hold it as tenants in common; but the acts showing
an intention so to take must be unequivocal, and must be concurred
in by all the parties interested.
Young v. Bradley,
101 U. S. 782;
Baker v. Copenbarger, 15 Ill. 103;
Ridgeway v.
Underwood, 67 Ill. 419; 1 Jarman on Wills, (4th ed.) 598-602.
In the present case, the instrument in question cannot have this
effect, for two reasons. In the first place, it manifested no
intention to alter in any way the existing titles of the residuary
devisees, either as being legal or equitable or as being in
severalty or in common, but was simply a power of attorney, the
object of which was to continue Wood's management of the estate as
a whole, as under the twenty-first clause of the will. In the next
place, the instrument was not executed by or in behalf of all the
parties in interest, inasmuch as it was not executed by anyone
authorized to affect the share devised for the daughter's benefit
for life, and to her children or appointees after her death. By the
clear terms of the twentieth clause of the will, neither the
daughter nor her husband had any authority to do this, and her
trustees had no power over he share until it had been conveyed or
set apart to them by the trustees under the will; and, if the
trustees under the will were duly constituted trustees for her and
for her children (which is disputed), they had no greater power in
this respect, before the estate was divided, than distinct trustees
would have had.
Page 141 U. S. 322
The result is that the decree of the circuit court must be
affirmed in all respects, except that the declaration therein as to
the time when the legal estate of the residuary devisees vested
must be modified in accordance with the opinion of this Court.
This conclusion, by which the brother and the nephew take the
shares originally devised the them, carries out the intention of
the testator, though probably not by the same steps that he
contemplated.
Decree accordingly; the appellants in each appeal, except
James Couch, to pay one-fourth of the costs, including the cost of
printing the record.
MR. JUSTICE BREWER and MR. JUSTICE BROWN took no part in the
decision of this case.
*
"First. I do hereby give, bequeath, and devise unto my beloved
wife, Caroline Elizabeth Couch, and my brother, James Couch, and my
brother-in-law, William H. Wood, whom I hereby constitute, make,
and appoint to be my executrix, executors, and trustees of this my
last will and testament, and the survivors of them, and, in the
event of the death of either of them, the successor appointed by
the surviving trustee or trustees, all my estate, both real and
personal, of every nature and description, for the term of twenty
years, in trust, and for the uses and objects and purposes
hereinafter mentioned and expressed, and for the purpose of
enabling them more fully to carry into effect the provisions of
this will, and for no other use, purpose, or object, hereby giving
and granting unto my said executors and trustees full power and
lawful authority to lease my real estate at such time or times, and
in such parcels, and in such way and manner, and upon such terms
and conditions as to my said executors and trustees, or the
survivors or successors of them, in their sound discretion, shall
be deemed most advantageous and for the true interest of my estate,
but no lease shall be granted of any building for a longer term
than five years, and all leases shall expire at the end of twenty
years from the time of my death. And I do also hereby authorize and
empower my said executors and trustees, and the survivor or
survivors of them, and their successors, from time to time, as
they, in the exercise of a sound discretion, shall deem for the
true interest of the estate, to purchase with the surplus funds
belonging to my estate such real estate as they may deem proper and
expedient, and take and hold the same, as such executors and
trustees as aforesaid, upon the same trusts, and for the same uses
and purposes, as the other real estate now owned by me, and more
especially to purchase for the benefit and use of my estate, when
they, my said executors and trustees, or the survivors and survivor
of them, or successors, shall think it expedient so to do, any real
estate which is or may be subject to any such judgment, decree, or
mortgage as is or at any time hereafter may become a lien, charge,
or encumbrance for my benefit, or for the benefit of my heirs or
executors, upon the same, and, again, that my said executors and
trustees have the like discretion to lease the same. And I do
hereby authorize my said executors and trustees, if they shall
think proper so to do, to loan on real estate situate in the City
of Chicago any of the surplus moneys arising from my said estate,
as aforesaid, on bond and mortgage: provided always that such real
estate shall be worth double the amount so loaned thereon, over and
above any other liens and encumbrances existing against the same,
and that such moneys shall not be loaned for a longer period than
twenty years from my decease."
"And, generally, I do hereby fully authorize and empower my said
executors and trustees, from time to time, to improve my real
estate, and invest all surplus moneys belonging to my estate,
arising from any source whatever, and not wanted immediately, or
required to meet the payments and advances, legacies, annuities,
and charges required to be made under this, my said will, in such
way and manner as to them, my said executors and trustees, or the
servivor or successors of them, in the exercise of a sound
discretion, shall be deemed most safe and productive; but no moneys
are to be invested except in improving my real estate, or in the
purchase of other real estate, or on bond and mortgage as
aforesaid. And I direct that my executors or trustees, or their
successors, shall not purchase or improve by building upon any real
estate after the expiration of sixteen years from my decease."
"Relying on the fidelity and prudence of my said executors and
trustees in executing the various trusts to them given and confided
in and by this, my last will and testament, my executors are
authorized to mortgage my real estate to improve by building on the
same only in the event of the destruction of some of my buildings
by the elements, and then only to supply other buildings in the
place of those destroyed."
"It is my will that all my just debts and the charges of funeral
expenses be paid and discharged by my executors, as hereinafter
named and appointed, out of my estate, as soon as conveniently may
be after my decease, and the said debts become due, and I leave the
charge of my funeral expenses to the discretion of my said
executors."
"Second. I give, devise, and bequeath to my beloved wife,
Caroline Elizabeth Couch, after the expiration of the trust estate
vested in my executors and trustees for the term of twenty years
after my decease, one-fourth part of all my estate, both real and
personal, after the payment of all my debts, funeral expenses and
the legacies in this will mentioned, which are hereby made a charge
on said real estate, which part is to be accepted by my said wife
and received by her in lieu of dower."
"Third. I give, devise, and bequeath unto my beloved daughter,
Caroline Elizabeth Couch, after the expiration of the trust estate
so vested as aforesaid, one-fourth part of all my estate, both real
and personal, after the payment of all my debts, funeral expenses,
and the legacies in this will mentioned."
"Fourth. I give, devise, and bequeath unto my brother, James
Couch, after the expiration of the trust estate so vested as
aforesaid, one-fourth part of all my estate, both real and
personal, after the payment of all my debts, funeral expenses, and
the legacies in this will mentioned."
"Fifth. I give, devise, and bequeath unto my nephew, Ira Couch,
son of my brother, James, after the expiration of the trust estate
so vested as aforesaid, the remaining one-fourth part of all my
estate, both real and personal, after the payment of all my just
debts, funeral expenses, and the legacies in this will
mentioned."
"Sixth. I hereby will and direct that the said legacies
hereinafter mentioned shall be charged on my real estate, to be
paid out of the rents and profits thereof as hereinafter
directed."
* * * *
"Tenth. I give and bequeath to my wife, Caroline Elizabeth
Couch, for the support of herself and daughter, from the rents of
my real estate, the sum of ten thousand dollars a year until all
the debts due by me are paid by my executors, and after my
executors have paid such debts I give and bequeath to her for the
same purpose fifteen thousand dollars a year, to be paid quarterly
to her until my daughter becomes of age or is married, when my
daughter may draw one-fourth of all the net rents and profits,
after payment of all expenses, taxes, repairs, legacies, annuities,
and other charges on my said estate, and my wife may draw ten
thousand dollars a year until my nephew, Ira Couch, attains his
majority, when she shall draw one-fourth of all the net rents and
profits, after paying all expenses, taxes, repairs, legacies,
annuities, and other charges as aforesaid."
"Eleventh. I give and bequeath to my brother, James Couch, for
the support of himself and family, from the rents of my real
estate, the sum of ten thousand dollars a year, to be paid
quarterly until all the debts due by me are paid by my executors,
and after such debts due by me are paid, I give to him for the same
purpose fifteen thousand dollars a year, to be paid quarterly to
him until my nephew, Ira Couch, attains his majority, after which
time I give to my brother, James Couch, one-fourth part of all the
net rents, income, and profits of my estate, to be paid him by my
executors quarterly until the final division of my estate, which
shall take place at the end of twenty years after my decease, and
not sooner."
* * * *
"Sixteenth. I will and direct that no part of my estate, neither
the real nor the personal, shall be sold, mortgaged (except for
building), or in any manner encumbered until the end of twenty
years from and after my decease, when it may be divided or sold for
the purposes of making a division between my devisees as herein
directed."
"Seventeenth. It is my will that any and all real estate which
may hereafter be purchased by me shall be disposed of, and is
hereby devised, in the same manner and to the same persons as if
owned by me at the time of making this, my last will and
testament."
"Eighteenth. In the event of any of the legatees or annuitants
being alive at the end of twenty years after my decease, it is my
will, and I hereby direct, that there shall be a division of all my
estate, both real and personal at the end of said twenty years,
anything herein contained to the contrary notwithstanding, and in
such case my executors, in making division of the said estate,
shall apportion each legacy or annuity on the estate assigned to my
devisees, who are hereby charged with the payment of the same
according to the apportionment of my said executors."
"Nineteenth. It is my will that my trustees aforesaid shall pay
the several gifts, legacies, annuities, and charges herein to the
persons named in this will, and that no creditors or assignees or
purchasers shall be entitled to any part of the bounty or bounties
intended to be given by me herein for the personal advantage of the
persons named, and therefore it is my will that if either of the
devisees or legatees named in my will shall in any way or manner
cease to be personally entitled to the legacy or devise made by me
for his or her benefit, the share intended for such devisee or
legatee shall go to his or her children in the same manner as if
such child or children had actually inherited the same, and in the
event of such person or persons having no children, then to my
daughter and her heirs."
"Twentieth. It is my will that the estate, both real and
personal, hereby devised and bequeathed to my daughter, Caroline
Elizabeth, shall be vested in trustees, to be chosen by herself and
my trustees herein named, before her marriage, and said trustees
shall be three in number, to whom all her estate, both real and
personal, shall be conveyed at the expiration of twenty years, the
time hereinbefore specified for the termination of the estate of my
trustees herein, to such trustees so to be appointed as aforesaid,
and it is my will that the estate, both real and personal, herein
devised and bequeathed for the benefit of my daughter shall be held
by such trustees for the sole and only use and benefit, and that
the same shall not in any manner be subject to the marital rights
of any future husband my daughter may have, and that all moneys
shall be paid by such trustees to my daughter personally, and to no
other person for her except upon her written order or assent, and
it is my will that her said trustees pay to her during her life the
entire net income of the estate, both real and personal, herein
devised and bequeathed to my daughter, after the same shall have
been conveyed to her trustees by my executors and trustees or their
successors, and after the death of my said daughter I direct that
the said estate, both real and personal, shall be conveyed to the
children of my daughter, and, in the event of her having no
children, to such person as my daughter may direct by her last will
and testament."
"Twenty-First. It is my wish also that William H. Wood, my
executor and trustee, shall be charged with, and take upon himself,
the collection of all rents accruing to my estate, and that he
shall continue to perform the same during the period of twenty
years after my decease, and for the performance of this service and
other services, and for his general care and supervision of the
affairs of my estate, I hereby direct that the sum of two thousand
dollars per annum shall be paid to him; but in the event of his
decease before entering upon said duties, or before the twenty
years aforesaid shall expire, or shall decline to act as in this
section provided, I hereby authorize and direct my said trustees to
appoint some other person to act in his stead in collecting said
rents and performing the other duties as above specified, and to
pay him the same compensation therefor which said Wood would have
had."
"Twenty-Second. And in the event of the marriage of my said wife
after my decease, it is my will and I hereby authorize and direct
my said trustees and executors to pay over to my said wife, and to
no other person, the rents, annuities, legacies, and other income
herein bequeathed to my said wife, and to take her separate
receipts therefor, and it is my will that my said trustees and
their successors in such case hold the same, subject to her order,
in trust for my said wife, so that said property so devised and
bequeathed to her as aforesaid can in no event be subject to the
marital rights of such husband."
