Ahern v. Ahern

65 N.Y.S. 81 | N.Y. App. Div. | 1900

Patterson, J.:

The 17th clause of the will of the testator, Maurice Ahern, is susceptible of no other interpretation than that it created a trust in his real and personal estate to continue during five minorities, and, therefore, unlawfully suspended the power óf alienation of the realty and the absolute ownership of the personalty of which the testator died seized and possessed. In express words, the gift is to the executors to have and to hold the same “ until all of my children shall have arrived at the age of twenty-one years ; and during, the period of their said trust to receive the income, rents, issues and profits, of said property, and to apply the net sum to the support and maintenance of my wife and children and the' education of my children.” The testator left five minor children surviving him. There is a provision 'in the 17th clause which reads as follows: “ Upon the said event of the youngest of my said children attaining the age of twenty-one years, I direct and empower said executors and trustees to sell my said estate either at public auction or private sale and at the best price and terms in their discretion advisable; and to apply the proceeds. * * * ” If this provision stood alone, and directed a sale and distribution upon the arrival of the youngest child at the age of twenty-one, it might be argued,.to support an otherwise valid disposition, that the court would imply the alternative that the trust should cease upon the death of the youngest child before attaining majority, as was done in Lang v. Ropke (5 Sandf. 369), but such an alternative cannot be implied in this case, because the general scheme of the trust is utterly opposed to such an implication. In the 16th clause of the will the testator gives to his wife a life estate in a house and lot, and upon her death, devises that property to his children in equal shares, subject to the provision of the trust created in the 17th clause. In the direction for distribution contained in that 17th clause, the testator provides- as follows: “ In the event of the death of my said wife before all of my children shall arrive at the age of twenty-one years, it is my will that the property heretofore devised to her by the sixteenth clause of this my will, form part of and be included in said trust estate.” Here is reiterated the purpose of creating a trust that shall continue until all of his children shall have attained the age of twenty-one years. It is impossible, without destroying the whole scheme of the trust, to limit it to the life of the youngest child in being at the testator’s death by making it determinable upon, that child’s attaining the age of twenty-one years or dying before reaching that age.

The judgment must be reversed and judgment directed declaring the trust created by the 17th.clause to be void, with costs to all parties appearing to be paid out of the estate.

Rumsey, Ingraham and McLaughlin, JJ., concurred.

Judgment reversed and judgment directed declaring the trust created by the 17th clause to be void, with costs to all parties appearing to be paid out of the fund.