residuary.2 But if the estate is limited in trust generally, and only the direction for accumulation is void, the income alone may go as undevised or as provided for in the sixty-third section of this article.

3

In Disposition of Accumulations when Infant Dies before Distribution. the event of the demise of an infant entitled to accumulations, but before distribution thereof, such accumulations, if vested in interest, pass to the personal representatives of the deceased, unless they are otherwise limited, devised, or bequeathed over; 5 and, it seems that the accumulations of personal estate may be limited over to adults. in the contingency of the infant's death before majority, and so the accumulations from real property.7

Accumulations for Charity. Formerly accumulations for charity offered no exception to the general rule and were unlawful in New York. But under recent legislation touching charities it was doubted whether accumulations for charitable objects remained subject to this general rule, as charities are in reality for the public good and outside of the ordinary rules relating to perpetuities and accumulations for non-charitable purposes.10 But it has at last been finally held that accumulations for the benefit of a charitable corporation offer no exception to the general rule stated above.11

This section of this act (re-enacting chapter 74, Laws of 1846, and chapter 432, Laws of 1855) now specially authorizes certain accumulations for the benefit of particular charities.

The doubt expressed, that all accumulations for charity after the act of 1893 in this State might afford an exception to the general rule, or at least be outside of the statutory condemnation of other accumulations, is now quite at rest. The case of St. John v. An

2 Cruikshank V. Home for the Friendless, 113 N. Y. 337; Matter of Allen, 151 id. 243; cf. Kerr V. Dougherty, 79 id. 327, 346.

3 Haxtun v. Corse, 2 Barb. Ch. 506, 518; Vail v. Vail, 4 Paige, 317, 328; Manice v. Manice, 43 N. Y. 303, 383; Cochrane v. Schnell, 140 id. 516; Endress v. Willey, 122 App. Div. 110. 4 See below under section 63.

5 Smith v. Parsons, 146 N. Y. 116. 6 Smith v. Parsons, 146 N. Y. 116; cf. Pray v. Hegeman, 92 id. 508, 519; Gilman v. Healy, 1 Dem. 404.

7 Pray v. Hegeman, 92 N. Y. at p. 513.

8 See Scott, Trusts for Accumulation, 209; 3 Lewis on Trusts (American edition), chap. 8.

9 See below, under § 113, Real Prop. Law.

10 Fowler, Char. Uses, 150, 151, note; Brigham v. Peter Bent Brigham Hospital, 126 Fed. Rep. 796; affd., 134 id. 513; St. John v. Andrews Institute, 117 App. Div. 698, 720; modified, 191 N. Y. 254.

11 St. John v. Andrews Institute, 191 N. Y. 254.

drews Institute decides that trusts for accumulations for the benefit of charity are not an exception to the general rules of law, condemnatory of accumulations, and that chapter 701, Laws of 1893, as amended, does not operate to except such accumulations for charity 12 Accumulations for charity then are prohibited in this State unless some statute excepts them in specific cases. This section now states all the exceptions to the general rule, that trusts for the accumulation of funds for the benefit of charity are void in this State. The exceptions are closely connected with certain authorized trusts, in favor of the incorporated colleges or literary institutions mentioned in section 114 of this act." The income of such trusts may accumulate until they amount to sufficient in the opinion of the Regents of the University to fulfil the trusts. The other exception relates to an augmentation of trust funds in case loss occurs in such trust funds of the educational or civic institutions, specified in section 114 of the Real Property Law.14

13

New York Statute very Rigid in Operation. The law of New York in regard to accumulations does not contain the exception contained in the English act which provides "that nothing in the act contained shall extend to any provision for payment of debts of any grantor, settlor or devisor or other person or persons, or for raising portions for any child of the settlor or devisors, or any person taking an interest under the settlement or devise, or to any direction touching the produce of timber or wood."

The English act is certainly wise in tolerating such accumulations and there would seem to be no strong reason why similar exceptions would be impolitic in New York.

12

191 N. Y. 254.

18 See § 114, Real Prop. Law.

14 See 115, Real Prop Law.

§ 62. Anticipation of directed accumulation. Where such rents and profits are directed to be accumulated for the benefit of a minor entitled to the expectant estate, and such minor is destitute of other sufficient means of support and education, the supreme court, at a special term, or, if such accumulation has been directed by will, the surrogate's court of the county in which such will has been admitted to probate, may, on the application of his general or testamentary guardian, direct a suitable sum out of such rents and profits to be applied to his maintenance or education.

Formerly section 52, Real Property Law of 1896, chapter XLVI, General Laws:

§ 52. Anticipation of directed accumulation.— Where such rents and profits are directed to be accumulated for the benefit of a minor entitled to the expectant estate, and such minor is destitute of other sufficient means of support and education, the supreme court, at a special term, or, if such accumulation has been directed by will, the surrogate's court of the county in which such will has been admitted to probate, may, on the application of his general or testamentary guardian, direct a suitable sum out of such rents and profits to be applied to his maintenance or education.15

Section 52 was formerly 1 Revised Statutes, 726, section 39:

39. Where such rents and profits are directed to be accumulated for the benefit of infants entitled to the expectant estate, and such infants shall be destitute of other sufficient means of support and education, the chancellor, upon the application of their guardian, may direct a suitable sum out of such rents and profits to be applied to their maintenance and education.

In 1891 section 39 was amended by "An act to amend section thirty-nine of article first of title two of chapter one of part two of the Revised Statutes, relating to infants' estates." (Chap. 172, Laws of 1891.) Approved April 13, 1891, so as to read as follows:

§ 39. Where such rents and profits are directed to be accumulated for the benefits of infants entitled to the expectant estate, and such infants shall be destitute of other sufficient means of support and education, the supreme court at special term, and, where such accumulations have been directed by a last will and testament, the surrogate's court of any county in which such last will and testament has been admitted to probate, upon the application of their guardian, may direct a suitable sum out of such rents and profits to be applied to their maintenance and education.16

15 Repealed by Real Prop. Law of

1909, 460, art. 14, chap. 50, Consolidated Laws. See below, § 460.

16 As amended, repealed, chap. 547, Laws of 1896.

17

Comment. Under this section the allowance may be to the father, or mother,18 and for past as well as for future support.19 Where the accumulation is directed to be made for the benefit of a class with the right of the survivors to take the whole, the court may allow maintenance out of this fund; although, as a rule, maintenance cannot be allowed to minors out of the accumulations of a fund which on a certain contingency is to go elsewhere than to the person maintained.20

Surrogates May Order. Under this section, as amended in 1891, the surrogate has now jurisdiction to make the order, and it rests in discretion.21

17 Matter of Burke, 4 Sandf. Ch. 617; Suesens v. Daiker, 117 App. Div. 668.

18 Gladding v. Follett, 2 Dem. 58, 68.

19 Matter of Kane, 2 Barb. Ch. 375; Smith v. Gertner, 40 How. Pr.

185; Matter of Bostwick, 4 Johns. Ch. 100; Matter of Muller, 29 Hun, 418.

20 Matter of Davidson, 6 Paige,

316.

21 Matter of Lehman, 2 App. Div.

531.

§ 63. Undisposed profits. When, in consequence of a valid limitation of an expectant estate, there is a suspension of the power of alienation, or of the ownership, during the continuance of which the rents and profits are undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the persons presumptively entitled to the next eventual estate.

Formerly section 53, Real Property Law of 1896, chapter XLVI, General Laws:

§ 53. Undisposed profits. When, in consequence of a valid limitation of an expectant estate, there is a suspension of the power of alienation, or of the ownership, during the continuance of which the rents and profits are undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the persons presumptively entitled to the next eventual estate.22

Section 53 was formerly 1 Revised Statutes, 726, section 40:

$ 40. When in consequence of a valid limitation of an expectant estate, there shall be a suspense of the power of alienation or of the ownership, during the continuance of which, the rents and profits shall be undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the persons presumptively entitled to the next eventual estate.23

Common-law Rule. Before this section of the Revised Statutes, just set out above, any portion of real estate undevised, or undisposed of by deed, went to the heirs 24 or resulted to the grantor or settlor.25 Rule Since the Revised Statutes. The Revised Statutes altered the common-law rule only where a limitation of an estate suspended the power of alienation or the ownership, and, during the continuance of such suspension, there is no specific devise of the rents and profits.26 There must be a valid, not an invalid, limitation of an expectant estate, before this section can apply to undisposed of income and profits,27 and there must be also a failure or omission

22 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460.

23 Repealed, chap. 547, Laws of 1896.

24 See Lalor, Law of Real Prop. of the State of New York, 112, and cases cited; Vail v. Vail, 4 Paige, 328; Cruise Dig., tit. 38, chap. 18, § 1; 2 Black. Comm. 173.

25 Supra, pp. 37, 204; Cornish, Uses, 68 et seq.

26 Gott v. Cook, 7 Paige, 542; Craig v. Craig, 3 Barb. Ch. 76, 93.

27 Williams v. Williams, 8 N. Y. 538; Gilman v. Reddington, 24 id. 9, 19; Schettler v. Smith, 41 id. 328, 340; Manice v. Manice, 43 id. 303, 384; Pray v. Hegeman, 92 id. 508, 519; Cook v. Lowry, 95 id. 103; Matter of Hoyt, 116 App. Div. 215, 221; cf. Reeves v. Snook, 86 id. 303, 308.