CHAPTER 62. alienation or other act of the owner of the intermediate or precedent TITLE XIV, estate, nor by any destruction of such precedent estate by disseizen, forfeiture, surrender, merger or otherwise. estate may be SEC. 33. The last preceding section shall not be construed to pre- When expectant vent an expectant estate from being defeated in any manner, or by defeated. any act or means which the party creating such estate shall, in the creation thereof, have provided or authorized; nor shall an expectant estate thus liable to be defeated, be on that ground adjudged void in its creation. certain cases. SEC. 34. No remainder, valid in its creation, shall be defeated by Remainder not the determination of the precedent estate, before the happening of to be defeated in the contingency on which the remainder is limited to take effect; but should such contingency afterwards happen, the remainder shall take effect in the same manner, and to the same extent, as if the precedent estate had continued to the same period. SEC. 35. Expectant estates are descendible, devisable and alienable, in the same manner as estates in possession. Qualities of expectant estates. Future profits of SEC. 36. Dispositions of the rents and profits of lands, to accrue and be received at any time subsequent to the execution of the in- lands. strument creating such disposition, shall be governed by the rules established in this chapter, in relation to future estates in lands. SEC. 37. An accumulation of rents and profits of real estate, for Accumulation of the benefit of one or more persons, may be directed by any deed sufficient to pass real estate, as follows: will or 1. If such accumulation be directed to commence on the creation of the estate out of which the rents and profits are to arise, it must be made for the benefit of one or more minors then in being, and terminate at the expiration of their minority: 2. If such accumulation be directed to commence at any time subsequent to the creation of the estate out of which the rents and profits are to arise, it shall commence within the time in this chapter permitted for the vesting of future estates, and during the minority of the persons for whose benefit it is directed, and shall terminate at the expiration of such minority. the profits of lands. 4 Paige, 328. directions, SEC. 38. If in either of the cases mentioned in the last preceding other dir section, the direction for such accumulation shall be for a longer time part, when wholthan during the minority of the persons intended to be benefited ly void. thereby, it shall be void as to the time beyond such minority; and all directions for the accumulation of the rents and profits of real es tate, except such as are herein allowed, shall be void. SEC. 39. When such rents and profits are directed to be accumu- Application of lated for the benefit of infants entitled to the expectant estate, and support of insuch infants shall be destitute of other sufficient means of support fants. and education, the chancellor, upon the application of their guardian, may direct a suitable sum out of such rents and profits to be applied to their maintenance and education. Who entitled to SEC. 40. When in consequence of a valid limitation of an expect profits of land in ant estate, there shall be a suspense of the power of alienation, or of certain cases. the ownership, during the continuance of which the rents and profits shall be undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the person presumptively entitled to the next eventual estate. Expectant es ted. SEC. 41. The delivery of the grant, where an expectant estate is created by grant; and where it is created by devise, the death of the tates, when createstator, shall be deemed the time of the creation of the estate. TITLE XIV. CHAPTER 63. Certain expectant estates abolished. Estates in seve ralty, joint tenancy and in com. mon. Certain grants to create estates in common. 16 Mass., 61. Application of last section. Nominal condi grant. SEC. 42. All expectant estates, except such as are enumerated and defined in this chapter, are abolished. SEC. 43. Estates, in respect to the number and connexion of their owners, are divided into estates in severalty, in joint tenancy, and in common; the nature and properties of which, respectively, shall continue to be such as are now established by law, except so far as the same may be modified by the provisions of this chapter. SEC. 44. All grants and devises of lands, made to two or more persons, except as provided in the following section, shall be construed to create estates in common, and not in joint tenancy, unless expressly declared to be in joint tenancy. SEC. 45. The preceding section shall not apply to mortgages, nor to devises or grants made in trust, or made to executors, or to husband and wife. SEC. 46. When any conditions annexed to a grant or conveyance tions annexed to of lands are merely nominal, and evince no intention of actual and substantial benefit to the party to whom or in whose favor they are to be performed, they may be wholly disregarded, and a failure to perform the same shall in no case operate as a forfeiture of the lands conveyed subject thereto. CHAPTER 63. Certain uses and OF USES AND TRUSTS. SECTION 1. Uses and trusts, except as authorized and modified in trusts abolished. this chapter, are abolished, and every estate and interest in lands shall be deemed a legal right, cognizable as such in the courts of law, except when otherwise provided in this title. Executed uses confirmed. Right to possesfion of lands creates legal ownership. 4 Paige, 403. Active trusts not affected by last section. 4 Paige, 352. Trustees of estate for use of another take no interest. [See 15.] Preceding sec tions qualified. SEC. 2. Every estate which is now held as an use, executed under the laws of this state as they formerly existed, is confirmed as a legal estate. SEC. 3. Every person who, by virtue of any grant, assignment or devise, now is, or hereafter shall be entitled to the actual possession of lands, and the receipt of the rents and profits thereof, in law or in equity, shall be deemed to have a legal estate therein, of the same quality and duration, and subject to the same conditions as his beneficial interest. SEC. 4. The last preceding section shall not divest the estate of any trustees, in any existing trust, where the title of such trustees is not merely nominal, but is connected with some power of actual disposition or management, in relation to the lands which are the subject of the trust. SEC. 5. Every disposition of lands, whether by deed or devise, hereafter made, except as otherwise provided in this chapter, shall be directly to the person in whom the right to the possession and the profits shall be intended to be vested, and not to any other, to the use of, or in trust for, such person: and if made to one or more persons, in trust for, or to the use of another, no estate or interest, legal or equitable, shall vest in the trustee. SEC. 6. The preceding sections of this chapter, shall not extend to trusts arising or resulting by implication of law, nor be construed to prevent or affect the creation of such express trusts as are hereinafter authorized and defined. 255 TITLE XIV. CHAPTER 63. 3 Paige, 390. 16 J. R., 197. 5 SEC. 7. When a grant for a valuable consideration shall be made to John. Ch. R., 1. one person, and the consideration therefor shall be paid by another, Grant to one, for no use or trust shall result in favor of the person by whom such pay- mother, no trust ment shall be made; but the title shall vest in the person named as to result. the alienee in such conveyance, subject only to the provisions of the next section. money paid by fit of creditors. SEC. 8. Every such conveyance shall be presumed fraudulent, as Except for beneagainst the creditors of the person paying the consideration; and when a fraudulent intent is not disproved, a trust shall result in favor of such creditors, to the extent that may be necessary to satisfy their just demands. qualified. SEC. 9. The preceding seventh section shall not extend to cases Section seven where the alienee named in the conveyance shall have taken the same as an absolute conveyance in his own name, without the knowledge or consent of the person paying the consideration, or when such alienee, in violation of some trust, shall have purchased the lands so conveyed, with moneys belonging to another person. SEC. 10. No implied or resulting trust shall be alledged or estab- Purchasers prolished to defeat or prejudice the title of a purchase, (purchaser,) for a valuable consideration, and without notice of such trust. tected. SEC. 11. Express trusts may be created for any or either of the For what purpofollowing purposes: 1. To sell lands for the benefit of creditors: ses express trusts may be created. 2. To sell, mortgage or lease lands, for the benefit of legatees, or 11 Wend.. 240. for the purpose of satisfying any charge thereon: 3. To receive the rents and profits of lands, and apply them to the use of any person, during the life of such person, or for any shorter term, subject to the rules prescribed in the last preceding chapter: 4. To receive the rents and profits of lands, and to accumulate the same for the benefit of any married woman, or for either of the purposes and within the limits prescribed in the preceding chapter: 5. For the beneficial interest of any person or persons, when such trust is fully expressed and clearly defined upon the face of the instrument creating it, subject to the limitations as to time prescribed in this title. SEC. 12. A devise of lands to executors or other trustees, to be sold Certain devises or mortgaged, when such trustees are not also empowered to receive in trust, to be deemed powers. the rents and profits, shall vest no estate in the trustees; but the trust shall be valid as a power, and the lands shall descend to their heirs, or pass to the devisees of the testator, subject to the execution of the power. ors in certain SEC. 13. When a trust is created to receive the rents and profits of profits of land lands, and no valid direction for accumulation is given, the surplus of liable to creditsuch rents and profits, beyond the sum that may be necessary for the cases. education and support of the person for whose benefit the trust is created, shall be liable in equity, to the claims of the creditors of such person, in the same manner as other personal property which cannot be reached by an execution at law. SEC. 14. When an express trust shall be created for any purpose Other express not enumerated in the preceding sections of this chapter, no estate trusts to be pow shall vest in the trustees; but the trust, if directing or authorizing the 8 Wend., 661. ers in trust. CHAPTER 63. TITLE XIV, performance of any act which may be lawfully performed under a power, shall be valid as a power in trust, subject to the provisions in relation to such powers contained in the next succeeding chapter. SEC. 15. In every case where the trust shall be valid as a power, &c., to persons the land to which the trust relates, shall remain in, or descend to the otherwise entitled, subject to the execution of the trust as a Land to descend, entitled. Trustees of express trusts to have whole estate. Last section qualified. Interest remaining in grantor of express trust. Powers over trust, of party interested. Effect of omitting ance. persons SEC. 16. Every express trust, valid as such in its creation, except as herein otherwise provided, shall vest the whole estate in the trustees, in law and in equity, subject only to the execution of the trust; and the person for whose benefit the trust was created, shall take no estate or interest in the lands, but may enforce the performance of the trust in equity. SEC. 17. The preceding section shall not prevent any person creating a trust, from declaring to whom the lands to which the trust relates shall belong, in the event of the failure or termination of the trust, nor shall it prevent him from granting or devising such lands subject to the execution of the trust; and every such grantee shall have a legal estate in the lands, as against all persons except the trustees and those lawfully claiming under them. SEC. 18. When an express trust is created, every estate and interest not embraced in the trust, and not otherwise disposed of, shall remain in, or revert to the person creating the trust, or his heirs as a legal estate. SEC. 19. No person beneficially interested in a trust for the receipt of the rents and profits of lands, can assign or in any manner dispose of such interest; but the rights and interest of every person for whose benefit a trust for the payment of a sum in gross is created, are assignable. SEC. 20. When an express trust is created, but is not contained or trust in convey declared in the conveyance to the trustees, such conveyance shall be deemed absolute as against the subsequent creditors of the trustees, not having notice of the trust, and as against purchasers from such trustees, without notice, and for a valuable consideration. Certain sales, SEC. 21. When the trust shall be expressed in the instrument cre&c., by trustees, ating the estate, every sale, conveyance, or other act of the trustees, in contravention of the trust, shall be absolutely void. void. Other persons not to be affected of trustees. SEC. 22. No person who shall actually and in good faith make any by misconduct payment to a trustee, which the trustee as such is authorized to receive, shall be responsible for the application thereof according to the trust; nor shall any right or title derived by such person from the trustee, in consideration of such payment, be impeached or called in question, in consequence of any misapplication of such payment by the trustee. When estate of SEC. 23. When the purposes for which an express trust shall have trustees to cease. been created, shall have ceased, the estate of the trustee shall also 4 Paige, 403. On death of sur viving trustee, trust to be exe rection of the cease. SEC. 24. Upon the death of the surviving trustee of an express trust, the trust thall not descend to his heirs, nor pass to his personal cuted under di representatives; but the trust, if then unexecuted, shall vest in the court of chance. Court of chancery, with all the powers and duties of the original trustees, and shall be executed by some person appointed for that purpose, under the direction of the court. ry. SEC. 25. Upon the petition of any trustee of an express trust, the TITLE XIV. CHAPTER 64. court of chancery may accept his resignation, and discharge him from the trust, under such regulations as shall be established by the court for that purpose, and upon such terms as the rights and interests of When and how the persons interested in the execution of the trust may require. sign. trustees may re trustees may be SEC. 26. Upon the petition or bill of any person interested in the 3 Paige, 420. execution of an express trust, and under such regulations as shall be When and how established by the court for that purpose, the court of chancery may removed. remove any trustee who shall have violated or threatened to violate his trust, or who shall be insolvent, or whose insolveney shall be apprehended, or who, for any other cause, shall be deemed an unsuitable person to execute the trust. removed, how SEC. 27. The chancellor shall have full power to appoint a new places of trus trustee, in the place of a trustee resigned or removed; and when, in tees resigning or consequence of such resignation or removal, there shall be no acting supplied. trustee, the court, in its discretion, may appoint new trustees, or cause the trust to be executed by one of its officers, under its direction. CHAPTER 64. OF POWERS. SECTION 1. Powers, except as authorized and provided for in this Powers, except chapter, are abolished; and from the time this chapter shall be in as provided for force, the creation, construction and execution of powers, shall be in this chapter, governed by the provisions herein contained. abolished. SEC. 2. A power is an authority to do some act in relation to lands, Definition of or the creation of estates therein, or of charges thereon, which the power. owner granting or reserving such power, might himself lawfully per form. SEC. 3. No person is capable in law of granting a power, who is Who incapable not at the same time, capable of aliening some interest in the lands of granting a to which the power relates. power. SEC. 4. Powers, as authorized in this chapter, are general or spe- Division of powcial, and beneficial or in trust. ers. SEC. 5. A power is general, when it authorizes the alienation in Definition of gefee, by means of a conveyance, will or charge of the lands embraced neral powers. in the power, to any alienee whatever. SEC. 6. A power is special, 1. When the person or class of persons, to whom the disposition of the lands under the power is to be made, are designated : 2. When the power authorizes the alienation, by means of a conveyance, will or charge, of a particular estate or interest less than a fee. SEC. 7. A general or special power is beneficial when no person Beneficial powother than the grantee has, by the terms of its creation, any interest ers. in its execution. SEC. 8. A general and beneficial power may be given to a married Powers to marwoman, to dispose during the marriage, and without the concurrence ried women. of her husband, of lands conveyed or devised to her in fee. SEC. 9. When an absolute power of disposition, not accompanied |