Collins v. MacTavish

Miller, J., delivered the opinion of the Court. In this case the authority of the appellee to make leases is founded upon the will of Charles Carroll Mactavish, which was admitted to probate in March, 1868. By this will the testator devised his residuary estate to his wife (the appellee), Marcella MacTavish, her heirs, executors and administrators in trust to apply the income and revenue thereof to her own use during her life, and after her death he devised the same to his four children, hut subject to certain limitations which it is unnecessary to state. Then, with respect to the powers of the said Marcella, he makes the following provisions: “ I hereby authorize and empower my wife, as trustee aforesaid, so long as she shall remain unmarried, and her successors in this trust with the consent of Thomas C.Yearley during the life-time of the latter, and, after his death, with the consent of Daniel J. Foley, and after Mr Foley’s death, with the consent of her brothers-in-law, Henry Scott and Gould Hoyt, the two last persons to he consulted until such time as two of my children shall arrive at ¹⁶⁸ the age of twenty-one years, when said children and my remaining children as they respectively arrive at twenty-one years of age are to be consulted, and with their consent to make such change of investment of my estate and such re-investment and changes thereof from time to time as may be in the estimation of my said trustee proper and advantageous, to which end I hereby authorize and empower my said trustee to do all lawful acts and things, and execute and deliver all needful deeds, leases and other instruments of writing in the premises with the consent and authority aforesaid.” “And I further declare it to be my will and intention that my said wife, trustee as aforesaid, shall continue to exercise the rights and powers conferred upon her as above stated, so long only as she shall remain unmarried, and that should she contract a second marriage then the said trust to cease, and I hereby constitute and appoint her brothers-in-law, Henry Scott and Gould Hoyt, as and for my trustees in her stead, to take charge of my estate immediately after such marriage, and I hereby confer upon them all the powers previously conferred upon and exercised by my wife, as trustee aforesaid, subject to the same conditions.” This case was argued with the preceding one, and it is not therefore necessary to repeat what we have said in our opinion in that case in reference to questions which are common to both.

It is very clear that under this will the leasing power is not open to the objection of transgressing the perpetuity rule, for in no event can either the power or the trust continue for a longer period than the widowhood of Mrs. MacTavish and the lives of Scott and Hoyt. Nor have we any difficulty as to the objection that the assent to the lease of the children, who had attained majority, had not been obtained. The will requires