cestui que trust. It is the duty of the executors before paying over the "net income" of the estate to deduct the necessary expenses, such as taxes, repairs, and costs of collection, incurred in caring for the estate21, and it is further their duty under a will bequeathing to them a sufficient amount of money to be by them invested in the best government bonds to the amount of $75,000 to invest in such bonds an amount sufficient to secure $75,000 principal22. A codicil revoked an executor's appointment as trustee thereby substituting the later appointee to perform the trust duties in his place23.

In general it may be said that the will creates the trust, appoints the trustees, fixes their duty, and no action of the court is necessary to complete the trusts24.

$171. Effect of Failure of a Trust.

The effect of failure of a trust where a will provided annuities for the children of a testator, all of whom were under twelve years of age at the time of his death, and it set aside certain real estate to be held "for the purpose of aiding in carrying out this trust," and where otherwise it gave the executors a general power to sell and a residue to the children's children, after the death of all the children and on the majority of the youngest grandchildren, continuing the annuity of any deceased child to the children of such child until the division, is void as far as the reservation of the specified land and of the accumulation therefrom is antagonistic to the statute25, for any period

21. Dickinson v. Henderson, 122 Mich. 583, 81 N. W. 583. 22. Wisner v. Kleinhans, 69 Mich. 307, 37 N. W. 290.

23. Palmer V. Keam, 54 Mich. 617, 20 N. W. 613.

24. Worden V. Kerr, 91 Mich. 188, 51 N. W. 937.

25. C. L. '97, §8819. An ac

CONSTRUCTION OF TESTAMENTARY POWER §173

beyond the minority of the youngest child, and for that reason the heirs take the land by intestacy, subject only to the accumulations so far as needed to pay the annuities of the children, while the remainder, like the land, passes to the heirs at law26.

A power is an authority to do some act in relation to real property, or to the creation or revocation of an estate therein or a charge thereon, which the owner might himself perform for any purpose27. It is apparent that a power does not confer any estate.

§173. Construction of Testamentary Power.

A power under a will to sell and convey real estate in

fee simple for the donee's own use and benefits is not affected by statute28. The devise to a sister, contingent upon her remaining unmarried, is good where the trustee is authorized to sell the real estate and other property of the deceased, but is required to immediately reinvest it and to which the statute of perpetuities applies29. A power of sale coupled with an interest, although not a naked one, was one which related to the land, and as such survived to the executor of the legatee30. A sale of land without the direction of the judge of probate is void, although the husband devised all his real estate to his wife for the purpose of being used for her support and maintenance during her natural life, and directs that, if the rents and profits arising there from shall prove insufficient for such support and maintenance, she may, under the direction of the judge of probate sell and convey so much of the land as shall be sufficient therefor, and that, if any of the real estate remains unsold at her death, it shall be equally divided among the heirs of the testator31. A power by which a fund is to be used for the support of a person, cannot be appropriated to the building or completion of a dwelling house32.

CHAPTER XI.

VESTED AND CONTINGENT ESTATES.

$174. Vesting of Estates.

$175. Creation of Vested and Contingent Estates.

$176. Distinction Between Vested and Contingent Estates.

$177. Opening of Vested Remainders for Newly Born Remainderman. $178. Vested Defeasible Remainders.

$179. Contingency Resting Upon Person.

$180. Difference of Time of Vesting Estates Where Time of Payment is Postponed.

$181. The Time When Contingent Estate Became Vested.

$182. When a Vested Estate is Divested.

$183. Property Out of Which Legacies Are Payable or Charged.
$184. Types of Contingencies Upon Which Estates Depend.
$185. Construction of Vested and Contingent Estates.

$174. Vesting of Estates.

It

may be said that a title is vested in a person when he has a certain definite interest in some particular piece of property or fund, which, if not specially restrained, has all the attributes of ownership. The title under such circumstances passes to his heirs upon his death, and the estate is liable for his debts and engagements. The personal property vests in the executors for the purpose of administering the estate and the payment of debts and legacies. It is not apparent what property is available for the payment of general residuary bequests until administration is had and the debts are paid. In the event of a devise of real estate, unless expressly made contingent, it vests immediately in the devisee, subject, however, only to be

taken if necessary for the payment of testator's debts, while a bequest passes to the executors and then by them vested in the legatees. A devise made to members of a class, for example, to children, gives rise to some difficulty in regard to determining when the estate vests. The general rule may be stated that all the children will take, under a will where children are designated as a class and no further description is given, who answer the description at the time the will took effect. The vesting of the various interests is not postponed, under a will in which the division is to be made at a future time, unless express provision has been made to that effect. In the case of realty it is only the time of possession that is postponed.

$175. Creation of Vested and Contingent Estates.

Estates are vested when there is a person in being who would have an immediate right to the possession of the lands, upon the coming of the immediate or precedent estates1.

Estates are contingent while the person to whom, or the event upon which they are limited to take effect, remain uncertain2.

Where an estate to A. for life, remainder to B. and his heirs is limited, a vested remainder passes to B., for the reason that his interest will come into possession the

1. C. L. '97, §8795.

2. C. L. '97, §8795. Future estates are either vested or contingent.

They are vested when there is a person in being who would have an immediate right to the

possession of the lands, upon the ceasing of the immediate or precedent estate;

They are contingent whilst the person to whom, or the event upon which they are limited to take effect, remain uncertain.