Shanghai, 23rd December. Before O. N, Dewxy, Enq, Consul-General, Acting Judicially, Re the ox tate of the late E.M. Satrruy, deceased.
The Court, to-day, delivered the following His Hoxour said:—This is a motion on the part of certain of the legatees and next of kin of Edwin Maurice Smith, deceased, and Francis Blackwell Forbes and Frederic D. Hitch, attorneys, i i of said estate, made through their cou: William Venn Drummond, Esq., object to the validity of a certain instrument heretofore filed in this Court for -probate, purporting to be the last will and testament of Edwin Maurice Smith, an American citizen, who died on the 19th day of November, 1878 for the reason that the said alleged will attempts to create perpetual trusts, contrary to law in such cases, The law of Congress creating the Consular Courts in China and Japan, and which gives to these Courts juris: the persons and property of United States, therein provides that this authority shall be exorcised and enforced in conformity with the United States. But in oases wh cannot be applied, or fail to afford the relief sought, the common law and the law of equity and admiralty shall be invoked to famish suitable remedies. Under the common law rule, in the absence of any United States statutes, then will be considered the objections by this motion. The rule at common inst perpetual trusts is clearly defined, and is fixed at the close of a life or ig at the death of the testator, y rule has been estal a long seri cial deci independent English judiciary, which United States Courts have alto ndhe to since except in some instances where it has beet qualified by statutory enactments; and the establishment of such a rule against perpotuities has resulted in incalculable benefits to the living. For it has prevented the conceits or fancies of dying men from tying up the incomes of their estates for the sole of accumulating wealth by compound. after death in order that greater outred in the second and ry document? The tes! for, its provisions, appointed two 10%, who are charged with the duty of giving effect to its conditions. These trustees have power to mortgage the realty for the purpose of sego-luting loans, in order that the debts of the estate may be paid off out of the rents and profits accruing therefrom, according to the conditions of the will. In fact, the debts which are not secured by mortgage must be paid from such income, as the trustees have ho power to even sell or transfer any portion of the realty for any purpose whatever. They tre directed, after Freving the estate from al incumbrances, to apply the income to th payment (Int) of all taxes; (2nd) expenses of management; (3rd, ground rents; (4th) insurance; (5th) the payment of a sum for the formation of a reserve fand, by depeaiting ut the end of every guar ferent, with a first class bank in Shanghai, one fifth part of the gross rents and profite of such real state every three months, which is to be for the payment, from time to time, of such improvements upon the realty as, in the opin may advisable to make; and (6th) a stated of the remainder of the income every quarter to certain named legateos, including one-fifth part to the said trust: parts, aside from the reserve fund, all the interests so bequeathed—with the exception of two—are in favour of not exceeding two persons for life, with remainder over to the heir of the body of the last taker. The two exceptions are the gift to the trustees, which without limi have created such trusts as the common low prohibits: The authorities cited by the learned counsel for the motion support this ion, to which may be also added "Kent" and' Perry on Trusts," If, however, there should be any dou about the will cre legal. trust in this behalf, there can be none in the creation of reserve fund alluded to. For not only are interests named to this fund, upon the happening of cert tingencies, liable to happen, but every dollar expended from it beyond what is absolutely necessary to keep the property in repair, tends to increase its quarterly revenue, and this accumulation is to go on and on to the end of time, #0 far as anything appearing in the will in concerned. The ultimate ownership of this fund vests inno one. Ifthe trusts here sought to he created were executory in their nature, that is, to be perfected and closed at some fature time by a conveyance or settlement, the result would be different, but this is not' the case, Even if the foregoing objections were not urged against the validity of the will, the fact that the testator has disposed of eleven tenths of the income of his estate, would certainly defeat its execution. If the will, the illegal perpetuities—and in my judgment it does—and falls for this robson, the entire document as a testamentary paper for, as the learned conns: scheme some of its parts wi of the rest would so entirely de! tion of the testator that no part of it should be carried out.
It is the judgment of the Court, therefore, that the alleged will should not be admitted to ptovate. The objection is sustained, A decree will be entered accordingly.
Text read from the printed page and cleaned; old type leaves the occasional error.