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tioned therein. It has been said that an adopted child is not intended to receive the benefit of this statute, but the point has not yet been authoritatively settled. The obvious intention of the legislature was to secure to such child the same share of his parents' estate as if such parents had left no will at all; at the same time leaving to such parents the privilege of specifying the amount of his inheritance, or of expressly disinheriting him. To what extent a child must be "mentioned" to save the will from partial revocation is not stated. Certain it is that no express mention is required. Thus, in one case, the testator bequeathed his property after the death of his wife “to those persons who, if my death occurred at the time of her death, would then be my heirs at law by blood.” It was held that a child born after the execution of the will was “mentioned" therein, and therefore took under it; hence it was not entitled to the share given by the statute.
25. Restraints on testamentary alienation.
We have already pointed out that the right of a man to dispose of his property by will in any way he sees fit is not wholly untrammeled. Public policy requires that certain restrictions be placed upon the indulgence of his inclination to divert his property from the possession and enjoyment of those whom the statute has fixed upon as being naturally entitled to receive it. But no one can say that these regulations are at all oppressive or unreasonable, or that they unduly impair any of the inherent rights pertaining to the ownership of property.
These restrictions relate (1) to the kind of trusts which may be created in lands, (2) to the suspension of ownership and possession of both real and personal property, (3) to the accumulation of rents of lands and income of personal property, and (4) to charitable, benevolent, and other like bequests.
The reported cases in which these restrictions and regulations have become involved are exceedingly numerous, and most of them are too complicated to be easily understood. To interest the general reader, therefore, only the most cursory statement of the principles will be given; reference being made to standard books on the subject for the benefit of those who may be sufficiently interested to pursue the subject further.
In addition to these, special statutes have authorized gifts of real and personal property to incorporated colleges and other educational and literary institutions, in trust, to establish and maintain an observatory, to found professorships and scholarships, or for any other purpose contemplated by their charters. So, too, city and village corporations may receive gifts of land as well as personal property in trust for purposes of education, for the relief of distress, and for parks and gardens. Likewise, superintendents of common schools of any town may take and hold real property in trust for the benefit of the common schools of the town; and grants of land may be made to religious corporations in trust to apply the same or the income therefrom to cemetery purposes, and the care of plots therein.
26. Express trusts in lands.
So far as personal property is concerned, the legislature has found it to be impracticable to limit or define the purposes for which trusts may be created. Not so, however, with respect to lands.
In most of the states the purposes for which trusts of real property are permitted are expressly limited, and all others are declared void.
In New York the statute provides that such trusts may be created (1) to sell real property for the benefit of creditors; (2) to sell, mortgage, or lease real property for the benefit of annuitants or other legatees, or for the purpose of satisfying any charge thereon; (3) to receive the rents and profits, and apply them to the use of any person during the life of that person, or for any shorter term, subject to the provisions of law relating thereto (see post, $ 27); and (4) to receive the rents and profits of real property and to accumulate the same for the purposes and within the limits prescribed by law (see post, § 28). Hence, a devise to an executor in trust, which does not authorize him to collect the rents and profits, but gives to the life beneficiary the right to occupy the lands devised, is what is called a passive trust and is not one of those recognized by the laws of this state.
27. Suspension of the powers of alienation of
lands and of the ownership of personal
property The dry and technical language of the statute need not be quoted. The substance of it is that while the owner of property may, by deed or will, so transfer or devise his property as that the grantee or devisee shall not have the power to control or dispose of it, yet the period during which this suspension of the rights of ownership may be continued must be limited. This limit of time is not the same throughout the United States. In New York, and certain other States, the title and control of the property must vest in the beneficiary at or before the expiration of two lives in being at the date of the deed, or at the death of the testator. That is, the suspension of the power of disposal may continue during the lives of two living persons who are designated in the deed or will, or referred to in such a way as to be capable of ascertainment. In other states, the old Common law still prevails, which permits the suspension to continue during the lives of any number of designated living persons.
It is thus seen that this period is measured only by existing lives, or by some event which must occur during those lives. Hence, a trust to continue for a specified number of years is void; but a trust for the benefit of A for ten years, unless he sooner die, is valid, because in no event can it continue after A's death. A suspension of the power of alienation during an infant's minority is not equivalent to a suspension for a fixed period, but merely works a suspension for part of a life, for the law reads into it the alternative condition that the suspension shall cease if the life measuring the trust shall end during the minority.
A suspension of the power to dispose of property given by deed or will, is usually, if not invariably, accomplished through the medium of a trust. Thus, where a testator directs his lands to be held by his executor in trust to collect the rents and apply them to the use of A during his life, and