said: "The Statutes against perpetuities are directed against provisions by will or deed which prevent the vesting of estates in the beneficiaries; and, when such vesting is postponed beyond the limits allowed by law, the provision is void as being too remote. It can make no difference whether, during the time which shall lapse before it vests in the beneficiary, the estate vests in trustees, or is by them transferred to others than the beneficiary, and the proceeds and avails are held by the trustees subject to the trust; the policy of the law is defeated unless the contingency happens when the estate shall vest in the beneficiary within the prescribed limits. There would be but little use in statute or common-law restrictions against perpetuities, and the tying up of estates to await the happening of future events, if they could be avoided by merely clothing the trustees with power of sale, but subjecting the proceeds to the trusts declared, and by this simple device such postponement of the vesting of contingent interests be validated"92. §229. Charges of Legacies on Real and Personal Property. In general it may be said that the primary fund for the payment of legacies is taken from the personal estate unless the testator has otherwise directed and in the event that the personal estate should fail, the pecuniary legacies may be properly charged against the real property. Thus where there is a provision in the will that certain debts, legacies, and charges are to be paid, and the residue of the estate after these charges are settled is then to be divided, the particular debts, legacies and charges will be considered a charge against the estate, real and personal92. 92. Palms v. Palms, 68 Mich. 355, 36 N. W. 419; $230. The Distinction Between The Palms' Will Case and The Niles' Will Case. The wording of both these wills was identical excepting in the latter case there was added a clause by which a devise was made to the sister of the testator giving her an annuity of a specified sum per month, creating thereby a charge upon the property. This devise brought the case clearly within the rule established in a previous case93, where a testator gave his widow a life estate in the homestead, and the executors, who were in fact trustees, were to pay the widow a specified sum per year during her life, the entire estate being burdened with the annuity and if necessary the entire income must be appropriated to pay it. It is manifest that the statutes in restraint of alienation are directed against provisions in conveyances by will or deed which prevent the power of alienation to be suspended beyond the period prescribed by law, and therefore will not support a charge upon the legacies which will be upon the property beyond the time limited by law. §231. An Estate Placed In Trust and Alienation. The rule against suspension of alienation for a longer period than two lives in being was not offended, where a will placed the estate in trust for the lives of two persons and provided that the executors should pay a certain sum annually to a third person94. $232. What Law Governs. A foreign will directing the absolute and immediate sale 93. Dean V. Mumford, 102 Mich. 510, 61 N. W. 7; 94. Cole V. Lee, 143 Mich. 267, 106 N. W. 855; of all the estate belonging to the testator in Michigan, and its conversion into lands in another State in which the trusts are declared, is not void although the Michigan Statute in restraint of alienation is violated95. $233. Construction of Statute. The cardinal rule in the construction of wills is to ascertain the intent of the testator, and if that intent can be clearly perceived, and is not contrary to some positive rule of law, it must prevail98. In construing the statute the above rule is not to be neglected. This statute was adopted in this state verbatim et literatim from the New York Statute of 1830, and it is manifest that the construction placed upon this statute by the courts of that state had had a controlling influence here, and courts will presume that the legislature recognized and accepted such construction97. It is said in construing the legislative intent concerning certain trusts that in guarding against remote entanglements the legislative action which relates to perpetuities very carefully avoided the prevention of such trusts as might be necessary to save estates from being sacrificed or disposed of to pay charges or encumbrances. It is no part of the statutory policy to prevent land from being preserved as land for devisees, and when charges exist or are created which might involve either a sale or other burdensome interference with its actual enjoyment, trusts are expressly authorized, without being subjected to the perpetuity clauses, in order 95. Ford v. Ford, 80 Mich. 42, 44 N. W. 1057. 96. Foster V. Stevens, 146 Mich. 131, 109 N. W. 265; 97. State v. Holmes, 115 Mich. 456, 73 N. W. 548; to save the estate from much worse consequences. These trusts are not subjected to the law of perpetuity98. §234. Accumulation. Accumulating is the adding of the interest or income of a fund to the principal, or the withholding of income from present distribution, for the purpose of creating a constantly increasing fund for distribution at a future time, pursuant to the provisions of a will or deed99. §235. The Rule that Obtains as to Accumulations of Income From Personal Property. The rule that obtains as to accumulations of the income of personal property under a will is the common law rule under which the utmost length of time allowed for the contingency of an executory devise to happen in was that of a life or lives in being, and twenty-one years afterwards100. It is under this rule that one Peter Thellusson in 1796 devised his fortune to trustees, for accumulation during the lives of three sons and of their sons, and during the life of the survivors. At the death of the last survivor the fund was to be divided into three shares, one share for the eldest male lineal descendant of each of his three sons; upon failure of such descendant, the share to go to the descendants of the other sons. The testator left three sons and four grandsons living, and twin sons born soon after his death. It was found that at the death of these nine persons the fund would exceed nineteen million pounds; 98. Toms v. Williams, 41 Mich. 552, 2 N. W. 814; 99. Hascal v. King, 162 N. Y. 142, 70 Am. St. Rep. 302. and, upon the supposition of only one person to take and a majority of ten years, that the sums would exceed thirtytwo million pounds. The will was sustained in 1798 by the court of chancery101 and in 1805 by the House of Lords102. § 236. The Object of the Statute Forbidding Accumulations. The statute103 forbidding the accumulation of rents and profits is to prevent tying up real estate for the purpose of accumulation during extended periods, so that its continued rental might keep the property entire and undisposed of, and build up a large fund in connection with a landed estate104. A provision in a devise covering a piece of property which was rented under a lease for a long term providing for its own renewal in the event the appraised value of buildings erected by the lessee should not be paid at the expiration, and other property, both real and personal by which a certain sum was to be annually set aside from the income of the whole, to constitute a sinking fund to pay for the building, is not void as against the statute of accumulation105. 101. Thellusson v. Woodford, 4 Ves. 227. 102. Thellusson v. Woodford, 11 H. L. C. 112. 103. C. L. '97, §8819. An accumulation of rents and profits of real estate for the benefit of one or more persons, may be directed by any will or deed sufficient to pass real estate, as follows. 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 expir ation 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. 104. Toms v. Williams, 41 Mich. 552, 2 N. W. 814; 105. Toms v. Williams, 41 Mich. 552, 2 N. W. 814; |