Terms of the Courts. Edmonds. do. Willard. do. Hurlbut. do. Hoyt. ceeding in personam, or look to the ques- 1st Monday of Sept., City Hall, Justice tion of jurisdiction under any principles of equity which may be applicable to this court. I must therefore reject this application to compel these foreigners to give bail to the cross action entered against their ship; but they must give bail for costs in their own action. Do. do. Oct., 1st Monday of Jan., do. Edwards. do. Jones. Do. do. Dec., do. Edwards. Time of holding. Place. Justices assigned. CIRCUIT COURT AND COURTS OF OYER AND 1847. 1st Monday, Sept.,City Hall, Justices Cady, 1847. TERMINER. McCoun and Hurlbut. 3d Monday of Sept., City Hall, Justice 1st Monday, Nov. do. do. Hurlbut, 1848. McCoun and Mason. 1st Do. do. Nov., 1848. 1st Monday, Jan., do. do. Strong, 1st Monday of Jan., McCoun and Edwards. Edwards. do. Edmonds. do. Morse. Do. do. Feb., do. Strong. Do. do. March., do. Edwards. do. April, do. Hurlbut. do. May, do. Edmonds. do. June, Do. Do. Do. do. Edwards. 1st Monday, Oct., do. do. Shankland, Marvin and Edwards. Do. do. Sept., do. Hurlbut. Do. do. Oct., do. Barculo. 1849. Do. do. Nov., do. Jones, 1st Monday, July, do. do. Jones, Do. Edmonds and Hurlbut. Do. 1st Monday, Oct., do. do. Jones, Edmonds and Edwards. Do. Do. do. Feb., do. Hurlbut. Do. do. do. do. Nov., do. Hurlbut. Edmonds. Do. do. Dec., do. Edmonds. Do. do. Oct., do. Willard. Do. do. Nov., do. Edwards. Do. do. Dec., 1848. Do. CIRCUIT COURTS. 1st Monday of Oct., City Hall, Justice Morehouse. do. Edmonds. Do. do. Dec. do. H. Gray. 1st Monday of March, do. Welles. Do. do. Nov., do. Harris. 1849. 1st Monday of Jan., Do. Do. Do. 1st Monday of March, do. Sill. Do. do. Nov., do. C. Gray. 1847. THE R& Bork Begal VOL. V.] ew NEW-YORK, SEPTEMBER, 1847. TRUSTS TO APPLY OR TO PAY OVER RENTS AND PROFITS OF LANDS UNDER THE N. Y. REVISED STATUTES. ART. II. We have been endeavoring to show that, to limit the creation of trusts, under the third subdivision of the fifty-fifth section of our statute as to uses and trusts to persons under disabilites, would be inconsistent with the amendment of that act, adopted in 1830, and is not sanctioned by the Revisers' original note. In other words, that the validity of those trusts does not, in any degree, depend upon the capacity or the situation of the cestui que trust. This conclusion, though adverse to the construction given to the statute by Ch. J. Savage and Mr. Justice Bronson, finds, it would seem, some favor with the latter. In Hawley v. James, (16 Wend. p, 158, 9 of Op.,) he observes, "I do not say that we should inquire into the character of the beneficiary, for the purpose of deciding on the validity of trusts under the third subdivision, but I do say that the trust cannot be valid unless the trustee is to apply, as well as to receive, the rents and profits." If the negative portion of this sentence affirms any thing-if it is to be regarded as a concession, that the character of the person, for whose benefit the trust may be created, is not material; that whenever the court may be called upon to enforce, or to set aside such trusts, the situation or qualifications of the cestui que trust, would not present a question to be entertained or looked into, as a part of the case to be adjudged; then, it seems to us that, though this is the true Observer. [MONTHLY PART. doctrine, it is conceding quite too much. for the rest of his theory. It follows from that concession, 1. That the Legislature did not intend to prohibit trusts for persons not under disabilities, or to confine trusts to cases of mere necessity. 2. That the Revisers did not, and could not, designate the persons for whom alone such provision out of the rent could be made. 3. That in no case could it be said that the trust is not "valid unless the trustee is to apply as well as to receive the rents and profits." It is manifest that, if the Legislature did intend to limit trusts to any particular class of persons, the beneficiary must belong to that class, or the trust cannot stand. The purpose of the law maker is to govern. (1 Show. 491. Sir W. Jones' Rep. 105. Plow. Rep. 105, 201.) Hence, if this legislative intent be once ascertained, no ingenuity can baffle or elude it. It is not to be sacrificed to mere forms, or glossed over by technical observances;-a trust for an object or person not embraced within the intention and spirit of the act, could not be sustained, though created in the very words of this subdivision. The party objecting to such a trust could, on filing his plaint, set up the fact that the cestui que trust was not within the statute, was not a married woman, a minor, improvident, intemperate nor imbecile, (if, as Ch. J. Savage and Senators Maison and Young have held, the existence of some such disability be an essential qualification,) and thus distinctly tender an issue to be denied by the other party. The question thus raised would be material in the controversy. It would then be the duty of the court to "inquire into the character of the beneficiary for the pur Trusts to Apply or to Pay over Rents, &c. pose of deciding on the validity of the tention to limit trusts to a particular class trust;" and we cannot believe that a of persons is to be preserved inviolate, judge who has been eminently distin- these would be dangerous tribunals. guished by the faithful observance of the Though it may involve all the trouble behests of the Legislature, and of the and expense incident to the trial of isprinciples by which statutes are to be sues of fact, another and more searchconstrued, could suggest a doubt as to ing ordeal must be established. Senathe duty of the court in such cases, unless tors Maison and Young however, seem he inclined to the opinion that the inten- disposed to look into the instrument tion of the framers of the act was to al-making provision for the trust to ascerlow a trust for any person, irrespective tain the character of the beneficiary, of his or her situation or character. Still (14 Wend. 354. 381;) but that method it is not to be forgotten, that the learned judge, in the case above cited, (p. 157 of Op.,) has declared that in allowing trusts under the third subdivision, "the Legislature had in view a particular class or description of persons who were to be provided for by the trust." would be putting the statute at any man's mercy, and enabling a scrivener, by a skilful arrangement or choice of words, to play with and elude the purpose of the Legislature. It could not suffice, unless substance is to be sacrificed to mere form, that the direction be and profits." It would, indeed, be easy to adopt those words, and thus frame trusts for "all sorts and people;" but what then becomes of this imputed intention to tolerate such trusts in only a limited degree? But while intimating that it might be" to apply as well as to receive the rents possible for the court to escape from an inquiry as to the character of the beneficiary, Mr. Justice Bronson must have seen how inconvenient and embarrassing it would often be, if trusts under this subdivision were to be confined in practice, to persons possessing certain spe- It is obvious that all attempts to concial qualifications; qualifications too, fine the creation of trusts, under the subfrom their very nature, often depending division, to the descriptions of persons upon mere opinion or suspicion, and of referred to in the Revisers' original note, short or uncertain duration. In the cases must be fruitless. The elements of a of a minor and of a married woman, the practical system-clearness, certainty, infancy of the one and the legal duress simplicity-every thing like adaptation of coverture resting upon the other, to the necessities and conveniences of could be well and easily ascertained. mankind-will be wanting. Then is Not so, however, where the disability arises from the habits or conduct of the party. How is it to be determined whether the cestui que trust, on the ground of intemperance or improvidence, needs the aid of a trustee? Gross instances of that vice or infirmity, are out of the question; but what shall be the standard? Who shall draw the line of sepa- But assuming that the validity of a trust, ration in those cases where the benefici- in its creation, does depend upon the ary, not utterly lost, stands on the verge disability of the beneficiary, does the of a decent respectability? The ques- continuance of the trust depend upon tion cannot be referred to the person de- the continuance of that disability? Anasirous of authorizing a trust, that would logous to the principle that the reason be making his caprice or fancy the mea- for a law having ceased, the law itself sure of the law; nor to the trustee, his ceases also, does the trust cease on the own existence, as such, depends upon failure of those reasons which justified its the existence of the trust; nor to the creation? It has been intimated, (14 beneficiary, whose cupidity could always Wend. 377, per Senator Young,) that the devise some mode of attaining the requi- education of a minor which, under the site qualification. If the supposed in-original subdivision, might have been this the true construction of the statute? Does it not render that which the Revisers purposed should be "uniform and intelligible," "various, complicated and abstruse "-" plunging the law on the subject into endless uncertainty." Either this interpretation should be rejected or the statute forthwith repealed. Trusts to Apply or to Pay over Rents, &c. carried on for life, is now to terminate with his minority. In like manner, is the trust for a married woman to determine on her becoming a widow? Or for "an absent friend," on his returning to the State? Or for an indigent and thriftless beneficiary on his or her becoming so industrious and prosperous as to no longer really need the application of the rent? Or in the case of a trust creting a fund for the use of one intemperate or improvident, if the person lose that qualification-cease to be intemperate or improvident-is the forfeiture of the bounty, which otherwise would have been conferred, the penalty of that reformation ? ken off, will be deemed a sufficient apology for invoking the aid of the statute, and, in many cases, though the qualification may continue only for a day, the fruits of the trust may be enjoyed for years. But the 55th section of the statute af. fords, in itself, conclusive evidence that the trusts in question are not to be confined to persons in any peculiar relations. Under the 1st subdivision the trust is for creditors; under the 2d subdivision, for legatees and to satisfy any charges on the land; and under the 4th subdivision, to accumulate rents for the purposes and within the limts prescribed in the 1st Article of that title. By the 37th section (1 R. S. 720) to which reference is thus made, this accumulation of Thus If not, then it cannot be said that a provision under this subdivision, to apply rents can only be for minors. such rents, is sustained because of some the special objects of the trusts to be necessity arising from the existence of created under these several subdivisuch disabilities, or that the peculiar condition of the beneficiary has any thing to do with the validity of the trust. sions are distinctly designated-creditors, legatees, minors, and charges on the lands, as by judgments or mortgages. After the same distinct and intelligible mode of enactment, the third subdivision authorizes the application of rents and profits to the use of any person-not any person belonging to this class or that, or possessing any distinctive qualifications, or resting under disabilitiesbut for any person in the unrestricted sense of that term. Nor is there, as in We shall not pause to consider the moral tone of that legislation which elevates, in point of privilege, the idle and profligate, above the sober and useful citizen; which enables the former to receive benefits often denied to the latter, making these benefits more certain and abundant as the beneficiary becomes more unworthy or necessitous, because there are consequences arising, the fourth subdivision, any provision denot from the act itself, but from an erro- fining those words, or limiting their apneous construction of it. But the objec-plications. As the creation of the trust tions to that construction, suggested by these considerations, would seem to be insuperable. does not depend upon the character of the cestui que trust, so, neither does the continuance of it; the term is not limiThe admission however, that in cases ted to the duration of any disability, like those above referred to, the trust but may be for life, or for a shorter pemay survive the disability, cannot be riod. The trust is subject to no condireconciled with the proposed limitation tion whatever, save that by the rules preof the statute. Upon principle, the quali-scribed in the first article of the second fication of the beneficiary must be a material in one stage of the trust as in another; especially if trusts are to be confined to cases of necessity, and if a person may be represented by a trustee only on the ground that he is incapable of acting in his own behalf. Otherwise the restrictive policy imputed to the act, would have no certain or potential existence. A temporary weakness or frailty in the person or character of the cestui que trust, easily assumed and easily sha title, the alienation of the property in trust shall not be suspended longer than during the continuance of two lives, and that, by other provisions in the second article, neither the recipient of the rents, nor the trustee, shall assign or transfer their respective estates. In Coster v. Lorillard, before cited, Mr. Senator Young, while concurring with Ch. J. Savage, also relies upon the original note of the Revisers, framed in view of this subdivision Trusts to Apply or to Pay over Rents, &c. But it was not advisable that those sections should have been repealed, as the same persons for whose benefit this subdivision was at first adopted, are yet, in common with others, the objects of such trusts. The 63d section is as necessary now as it ever was, for the protection of those under disabilities, while as to those who possess a sound capacity it may be useless, but never can be injurious. as first adopted. Not content with this, I had been adopted with reference to the he resorts to other sections of the act, 55th section as enlarged! The error as which were passed conjointly with the to time having been corrected, the ob55th section, section 60th vesting the le- jection has neither force nor application. gal estate in the trustee, section 65th If existing sections are inconsistent with prohibiting its sale or transfer, and sec- another, or with an amendment about to tion 63d enjoining the person entitled to be adopted, their repeal or modification the rents from disposing of that interest. would be a natural work. So, too, it is He says that this is the only instance in well that all parts of a system should which such multiplied prohibitions have harmonize, but to insist upon a particubeen cast about men to prevent sales, lar adjudication because of some supand that such laws never could have posed incongruity between such sections been intended for general use. Nay, he and the nice sensibilities of the cestui que thinks, that to extend such provisions to trust, seems to be a doubtful mode of any save a class of persons under disa- construction. bilities, would be arbitrary and unjust, certain to excite the humiliation of the cestui que trust, and the indignation of all mankind, (14 Wend. p. 379 of Op.) As if courts of justice could take for their guidance the fine drawn maxims peculiar to codes of honor, rather than the plain and practical rules and principles consonant with real life. As if men whose self-respect is so exalted as to unfit them for daily contact with the world, unroman- Nor is it easy to perceive how "the tic as it is, were to be dealt with tenderly, indignant reprobation," which the Senaand have their artificial and evanescent tor apprehends as conséquent upon such sentiments recognized in legislation! As" 'interference with the volitions of manif a cestui que trust of undoubted capaci- kind," can aid his argument. It is a graty, might not, by improvidence, or by tifying circumstance that, without the misfortune arising from no fault of his sacrifice of any principle, some laws may own, be stripped of the bounty con- be administered consistently with the ferred upon him; and as if that squea-pular will, but it is a source of security, mishness, which causes him to feel hurt more consolatory far, that all laws are to because a gift comes shackled with these be enforced independently of any such restraints, were something better than behest. But if this were not so, what ingratitude in disguise! The truth is, are we to think of that interference with legislation itself involves no compli- the volitions of a testator which forbids ment to any class, since numerous penal- his directing that the rents and profits of ties hang suspended alike over "the evil real estate left by him in trust, shall be and the good," and in various relations paid over to the object of his favor, or of life and departments of business, we which denies to him the right of making are hemmed in by so many restraints any provision out of such rents for the that, as the price of our civilized condi- benefit of his friend, save on the humilition, no right of property remains abso- ating assumption, that such person belute and unqualified. longs to a class incapable of making a discreet use of the fund, a class fit only to be placed under the absolute domination of a trustee? Yet, with all his eagerness to hold inviolate the volitions of mankind, the Senator finds nothing in this conflicting with the general liberty! The Senator appears to have forgotten that these peculiar sections were passed before the amendment of the third subdivision. When that change took place they were not repealed, and this, according to Mr. Justice Nelson and Mr. Justice Cowan, was mere inadvertence in legislation. (14 Wend. 331; 16 ib. 200.) Yet the Senator refers to them as if they po If "every rule of law which impedes or discourages the acquisition of alienation of property, is a substraction from |