[217] In New York, as in many if not all the States, the law relating to trusts as it formerly existed in England in its intricate details, has been abolished, and only express, active trusts are permitted, where the trustee has some active duty to perform in the management of the estate. These express trusts are of four kinds: 1. To sell land for the benefit of creditors; 2. To sell, mortgage, or lease lands, to pay legacies or other charges; 3. Where the trustee is authorized to receive the rents and profits, and apply them to the use of some person during his life, or for a shorter period; 4. To receive rents and income to accumulate for the benefit of minors, to cease at majority. The same trusts only are allowed in California: Civil Code 857. It is therefore held that all trusts, for any purpose whatever, not coming under one of these four classes, are void, as it was apparent in the enumeration of these the legislature intended to exclude all others. Hence, in the drawing of wills, attention is most particularly needed to see that no trusts are created other than those above.
[218] 34 N. Y. 584. It is not uncommon for persons to devise property to the United States Government. The last case in New York was somewhat singular. It is in the case of United States v. Fox, in 52 N. Y. 530. The testator there devised “to the Government of the United States at Washington, District of Columbia, for the purpose of assisting to discharge the debt contracted by the war for the subjugation of the rebellious Confederate States.” It was held that the government had no capacity to take. This case is now appealed to the Federal Courts, but with little prospect of reversal.
[219] Burbank v. Whitney, 24 Pick. 146; Beall v. Fox, 4 Ga. 404; Griffin v. Graham, 1 Hawks, 96; 7 Vt. 249; Vidal v. Gerard, 2 How. 127. The doctrine was elaborately argued and examined in the Gerard Will Case, 28 Penn. 54, and it was maintained that it was founded on the common law.
[220] There are many institutions permitted by statute in New York to take property by devise or bequest. By Laws 1848, ch. 319, benevolent, charitable, literary, scientific, missionary, or Sabbath-school societies can take a devise or bequest, the clear annual income of which shall not exceed $10,000; but, to be valid, the will must be executed two months before testator’s death. By Laws 1841, ch. 261, colleges and literary incorporated institutions are allowed to take for certain purposes. And, by Laws 1864, the State can take a devise for benefit and support of common schools. For these reasons, it is held the law of charitable uses is not so much required in New York; and, by special enactment, the legislature will incorporate societies to take a devise for pious, benevolent, or charitable purposes.
[221] 4 Ves. 227.
[222] In case the trust exceeds this term, it is void in toto, and not merely pro tanto; Griffiths v. Vere, 1 Ves. 136, 10 Penn. St. 326.
[223] A direction to accumulate all the testator’s estate for fifteen years by investment and reinvestment in bonds is valid in Illinois. Rhoads v. Rhoads, 43 Ill. 239.
But in New York an accumulation for three years, and also ten years, was held invalid: 4 Sandf. 442; 7 Barb. 590.
[224] In New York it is two lives; in California, any lives in being: Civil Code, 715.
[225] Schettler v. Smith, 41 N. Y. 328.