place. It is only in cases where the realty is indirectly charged that there will, in general, be any difficulty.

Whether a general direction in a will by a testator that his debts shall be paid, charges the real estate with the payment, has been much agitated. The weight of authority is that such direction alone is not sufficient to charge the real estate. It means, merely, that his debts shall be paid out of the primary fund for their payment. (Freeman's Ch. Cas. 192. Lupton v. Lupton, supra. Eyles v. Cary, 1 Vern. 457.)

A charge is implied when it appears, from the whole will, that it was clearly the testator's intent that the charge should be imposed, and in no other case. (Per Johnson. J. in Reynolds v. Reynolds, 16 N. Y. Rep. 262. Harris v. Fly, 7 Paige, 421. Warren v. Davies, 2 M. & K. 49.)

The usual residuary clause in a will does not of itself imply that the real estate is to be charged with either debts or legacies. Nor does the blending of the real and personal estate in one devise in the same clause of the will. This subject was well considered by the court of appeals in New York, in Reynolds v. Reynolds, (2 Smith, 259.) The cases are reviewed by Bowen, J., and the result seems to be that when a testator directs his debts and legacies to be first paid, and then devises real estate; or when he devises the remainder of his estate, real and personal, after payment of debts and legacies; or devises real estate after payment of debts and legacies, the real estate is held to be charged. (Newman v. Johnson, 1 Vern. 45. Harris v. Ingledew, 3 P. Wms. 91. Trott v. Vernon, 2 Vern. 708. Kentish v. Kentish, 3 Br. Ch. Cas. 257. Shalcross v. Finden, 3 Ves. 739. Tompkins v. Tompkins, Prec. in Ch. 397. Williams v. Chitty, 3 Ves. 545. Hassel v. Hassel, 2 Dick, 527. Brudenell v. Boughton, 2 Atk. 268. So, too, where the devisee of real estate is appointed executor, and is expressly directed to pay debts and legacies, the charge will be created. (Henvell v. Whitaker, 3 Russ. 343. Doe v. Pratt, 6 Add. & Ell. 180. Alcock v. Sparhawk, 2 Vern. 228. Dover v. Gregory, 10 Sim. 393.)

Bench v. Biles, 4 Mad. 187.)

So where a testator gives several legacies, and then, without creating any express trust for their payment, makes a general residuary disposition of the whole estate, blending the realty and personalty together in one fund, the real estate will be charged with the legacies; for in such a case the "residue" can only mean, what re

mains after satisfying the previous gifts. (Lewis v. Darling, 16 How. 10. Hill on Trustees, 508. Brudenell v. Boughton, supra. Bench v. Biles, supra.) But in these cases the residuary legatee was the executor, and the gifts to him did not become effectual until all antecedent dispositions of the estate were first satisfied. But if the executor is not a legatee or devisee, but an indifferent person, and the residuary legatee and devisee is not expressly charged with the payment of debts or legacies, and the residuary devise is not expressed to be made after such payment, the prior legacies and debts are not charged. (Myers v. Eddy, supra.) The law will raise no implication in such a case to change the ordinary rule for the payment of debts and legacies.

Where the testator by his will directs his real and personal estate to be sold and converted into a common fund, charging the fund with the payment of debts and legacies, it has been held, as was said by the learned judge in Reynolds v. Reynolds, (supra,) that the charge is not primarily upon that part of the fund arising from the personalty, but that the portion arising from each is charged proportionably. (Roberts v. Walker, 1 Russ. & Myl. 752. Kidney v. Coussmaker, 1 Ves. jun. 436. Salt v. Chattaway, 3 Beavan, 576. Stocker v. Harbin, 3 id. 479.)*

SECTION V.

Of Executory Devises, and of the Residuary Clause of a Will.

The subject of executory devises is nearly allied to that of contingent remainders, and has been adverted to in a previous chapter, when we were treating on that subject. (See Part 1, ch. 6, p. 174.)

An executory devise is a limitation by will of a future contingent interest in lands, contrary to the rules of limitation of contingent estates in conveyances at law. If the limitation conforms to the rules regulating contingent remainders, it is a remainder, not an executory devise. This is the construction whenever a remainder is limited upon a preceding freehold. (Doe v. Morgan, 3 Term Rep. 763. Wolfe v. Van Nostrand, 2 Comst. 442.) The changes in

* The case of Tracy v. Tracy, (15 Barb. 503,) was a special term decision, and was correctly decided, but upon erroneous reasons. The legacies were not charged by the blending and combining of real and personal estate, but by the "rest, residue and remainder" being given after the payment of debts. See remarks of Bowen, J. on this case, in Reynolds v. Reynolds, (2 Smith, 261.)

troduced by the revised statutes into the doctrine of future estates have made certain future estates contingent remainders, which formerly could be upheld only as executory devises. The statute has however fixed limits to the power of the owner over the disposition of his property. It has made all future estates void in their creation which shall suspend the absolute power of alienation for a longer period than during the continuance of not more than two lives in being at the creation of the estate, except in a single instance. That instance is, that a contingent remainder in fee may be created on a prior remainder in fee, to take effect in the event that the persons to whom the first remainder is limited shall die under the age of twenty-one years, or upon any other contingency by which the estate of such persons may be determined before they attain their full age. (1 R. S. 723, §§ 14-16.) The power of alienation is said to be suspended when there are no persons in being by whom an absolute fee in possession can be conveyed.

The effect of the statute is to destroy the distinction between contingent remainders and executory devises, which may now alike be created by grant or by will. They are made alike applicable to real and to personal property.

The questions growing out of these statutory changes have, in most instances, arisen under wills. In Irving v. De Kay, (9 Paige, 521,) the subject was extensively examined by the chancellor in determining various points arising out of the will of the late Henry Eckford. He stated some of the principles which had been adopted by his court and affirmed by the court of errors. He considered it settled that an estate which is inalienable for an absolute term, and which is not so limited as to be certainly determinable at the expiration of not more than two lives in being at the death of the testator, is void in its creation. He considered it also as well settled, that any legal trust is sufficient to sustain a devise or conveyance to the trustee, of an estate commensurate with such trust, without reference to other illegal trusts, which the testator or grantor has attempted to create in the same estate as distinct and separate trusts.

The intention of the testator, when ascertained from an examination of the will in connection with the situation of his property, &c. at the time of making his will, must be carried into effect by the courts, so far as is consistent with the rules of law. Although some of the objects for which a trust is created, or some future interests, limited upon the trust estate, are illegal and invalid, if any of the

purposes for which the trust was created are legal and valid, and would have authorized the creation of such an estate, the legal title vests in the trustees, during the continuance of such valid objects of the trust; except in those cases where the legal and valid objects of the trust are so mixed up with those which are illegal and void, that it is impossible to sustain the one without giving effect to the other; and that every disposition by the testator of an estate or interest in the rents, profits or income of his real or personal property, and every trust in the will which, if valid, would have the effect of rendering the property inalienable for a longer period than is allowed by law, and every remainder, or other future estate, or other interest limited upon the trust, which would have that effect, must be considered and treated as absolutely void and inoperative, in determining the question of the validity of a devise of the legal estate to trustees, or the validity of any other provision of the will. (See Gott v. Cook, 7 Paige, 521; Van Vechten v. Van Vechten, 8 id. 104; Darling v. Rogers, 22 Wend. 483; Amory v. Lord, 5 Seld. 403. Taylor v. Gould, 10 Barb. 388. Hawley v. James, 16

Wend. 61.)

The courts have held that the provisions of the revised statutes prohibiting a suspension of the power of alienation for more than two lives in being at the creation of the estate, applies as well to present as to future estates. (Coster v. Lorillard, 14 Wend. 265.) And that a limitation which may by possibility suspend the absolute power of alienation illegally, is void. (Per Nelson, Ch. J. in Hawley v. James, 16 Wend. 120.)

There are few duties more difficult to be performed by the conveyancer than the creation of future estates and trusts, in such a form as not to be in conflict with some provisions of the revised statutes. It is impossible to anticipate all objections which may arise, or to prescribe any invariable rules which will avoid all objections. The careful draftsman must examine the cases which have been decided, and see wherein the wills which were the subject of discussion were erroneous, and in what respect they departed from the statute. Those wills were prepared by learned counsel, and were drawn with much ability. They should be examined in connection with the criticism to which they were subjected, and the ultimate decision of the courts. They thus, as corrected, become models which may be safely followed.

If a will makes no valid disposition of any part of the estate, real

or personal, the property of the testator must be distributed as in the cases of intestacy. A testator may appoint an executor and testamentary guardian by a will which is invalid in every other respect. (Bayeux v. Bayeux, 8 Paige, 333.)

Distinct, independent provisions in a will, which are in themselves valid, will not be invalidated by other separate provisions which are contrary to law. But if the valid and invalid provisions are so intermingled that they cannot be separated from each other, they must all fall together. So where a particular provision, which if it stood alone would be valid, forms a part of, or depends upon a general purpose of the testator which is contrary to law, it is void. (Hawley v. James, 5 Paige 318; 16 Wend. 61. Lorillard v. Coster, 5 Paige, 172; 14 Wend. 265. Haxtun v. Corse, 2 Barb. Ch. 506. De Kay v. Irvin, 5 Denio, 646, affirming 9 Paige, 521. Parks v. Parks, 9 Paige, 107.)

The residuary clause in a will is in general inserted to prevent the effect of an intestacy. It means, says Chancellor Kent, in Lupton v. Lupton, (4 John. Ch. 623,) that the testator does not intend to die intestate as to any part of his property, and it generally means nothing more.

There are no particular words necessary to a residuary bequest or devise. In a will disposing of both real and personal property, the usual formula is: "I give, devise and bequeath all the residue of my estate, real and personal, to A. B., his heirs and assigns, forever." This form may be varied to meet the taste of the framer of the will. In Howland v. The Union Theological Seminary, (1 Seld. 193,) the residuary clause was in this form: "As to all the rest and residue of my estate, real and personal, whatsoever and wheresoever, I give, devise and bequeath the same in three equal parts, to be divided as follows," &c. This was held to be a general residuary clause, disposing of all the testator's estate of which no specific disposition was made by other parts of the will.

We have shown, under a previous head in this chapter, what becomes of a void devise, in a case where the will contains a residuary clause, (see § 3, p. 514,) and it need not be repeated.