after his death for the benefit of B, and upon B's death to transfer the land to C absolutely, this is a valid trust, and suspends C's possession and power of disposal during the lives of A and B. But the period of suspension need not necessarily be measured by the lives of the beneficiaries, for the testator may direct his property to be held in trust during the life of A, and the income in the meantime paid to any number of persons. Such a trust is valid because by no possibility can it continue longer than during the life of A, that is, one life in being.

Whether or not in a given case there is an unlawful suspension is not to be determined from what actually happens, but upon what may happen under the terms of the will at the date of the death of the testator. An unlawful suspension of ownership or power of alienation is not made valid because by subsequent events it actually terminates within the statutory period. To render such future estates valid they must be so limited that in every possible contingency they will absolutely terminate within the period prescribed by the

statute.

Where a clause in a will is invalid because containing an unlawful restraint on alienation, it may not be validated by an agreement of the parties, because the statute represents the public

policy of the state, and its provisions may not be waived. But whenever it is possible to do so, the illegal provisions will be eliminated, leaving the balance of the trust to stand. Thus, where a will creates a trust for a definite period of years, with a remainder after the expiration of said period, the trust provision, being invalid as not measured by lives in being, may be disregarded and the remainder given effect upon the death of the testator, instead of upon the expiration of the given period.

If the provisions of the instrument amount only to a bequest or devise, there can be no suspension at all. Therefore, the mere postponement of the time of payment of a legacy or delivery of property, does not violate the statute.

Thus, a provision in a will creating a trust fund for the payment of annuities out of the fund for a period of years does not suspend the absolute ownership within the statute, since the annuities need not be paid out of the income, and are alienable.

28. Accumulations of income.

It is not permissible, either by deed of trust or by will, to direct that income from real or personal property be allowed to accumulate for the benefit of an adult person; nor, in any case, for a period

measured by lives or years. If, however, a minor is intended to be thus benefited, an accumulation may be allowed, the same to continue during his minority. This accumulation of income may be directed to commence from the date of the deed, or from the death of the testator. The latter may, if he choose, first create one or two estates for life in the income of his property, and direct that the accumulation shall commence at the termination of such life estate. But it must commence sometime during the minority of the infant intended to be benefited, and must terminate at or before the expiration of such minority. The statute affects an implied as well as an express direction to accumulate, but a violation of its provisions does not invalidate any portion of the will not connected with the illegal direction. other words, if the accumulation be for a period longer than during the minority of the beneficiary, the illegal portion may be cut off, and the balance of the gift and its general purpose may remain. Where a fixed amount of annual income is directed to be paid to a beneficiary, when the total income from the fund is known to be in excess of the amount given, a direction to accumulate the surplus will be implied; but where the income of a fund is given generally, the necessary accumulation yearly resulting from the use of but a portion

In

of the income is not a void accumulation under the

statute.

29. Spendthrift trusts.

By this term is meant a trust intended to secure the trust fund, not only against the improvident habits of the beneficiary, but also from seizure by his creditors. To accomplish this purpose the fund is rendered inalienable by him, either during his life, or until such time as it shall be directed to be paid to him.

The policy of permitting such trusts has frequently been questioned, and in some of the states they are still regarded as repugnant to the law. They are generally upheld, however, rather in recognition of the testator's right to place such conditions upon the bestowal of his bounty as he chooses, than out of consideration for the beneficiary and his creditors.

It need hardly be added, that such a trust created by deed for the benefit of the donor himself, is everywhere held void.

30. Secret trusts.

Since wills are required to be in writing, an intention on the part of the testator that the subject matter of a gift should be used for a purpose not expressed, is ineffectual, and cannot

be established either by oral testimony or by any writing apart from the will itself. Thus where a will directs that a legatee should devote a part of his legacy to making such gifts to the friends and relatives of the testator as he has verbally specified, the direction is invalid and purely discretionary with the legatee.

Such trusts are nowhere recognized by the statutes, nor by courts of law. But under certain circumstances courts of equity have been forced to take notice of them, in order to remedy an evil which has grown up in comparatively recent times.

Where one has induced another to make him a gift by will, upon the promise to devote the gift to some lawful purpose requested by the testator, a trust is created which equity will recognize and compel him to perform. And even if the gift was not induced by the legatee, if it was given with the request and upon the understanding that it was to be applied to a specified use, the legatee will not be permitted to appropriate it for his own benefit.

But to sustain such a trust it is not enough that the testator has given a legacy, coupled with an expression of confidence that the legatee will follow his known wishes as to the disposition of it. There must be not only the intent of the