177 A.D. 385 | N.Y. App. Div. | 1917
The following is the opinion delivered at Trial Term:
Jonathan Levi died in the city of Schenectady April 6, 1905, leaving a last will and testament and codicil. This is an action for the construction of the clause in the will as follows:
“For the purpose of continuing and providing a home after the decease of my said wife for the use and occupation of any of my daughters who may remain unmarried or who may be or may become widows, I do give and devise the house in which I now reside and the lot on which the same stands*387 and known as 428 State Street, Schenectady, N. Y., unto my executors hereinafter named, or the survivors of them, in trust, however, for the following uses, purposes and trusts, to keep and to hold the same as a home for the use, enjoyment and occupation of any of my daughters who shall remain unmarried or who may be or who may become widows, and to be used for the actual occupation of such daughters and for no other purpose, without any rent or charges against the daughter or daughters for such use of occupation, excepting that the daughter or daughters so occupying such property shall pay all taxes, assessments, water rates and insurance and keep the same in proper repair and condition.
“ Upon the death of my last surviving daughter such trust herein lastly created shall cease and determine, and I do then give and devise said house and lot unto the children of my daughters who shall be living at that time, excepting, however, Howard Stern, the son of my daughter Fannie L. Stem, whom I hereby will and direct shall receive and take no share in the aforesaid property. ” •
There is no dispute as to the facts. Eight daughters and a number of children of daughters survived the testator. Other children may be born.
The trust in said clause is void. There are no persons in being by whom an absolute fee in possession can be conveyed, and the future estate suspends the absolute power of alienation for a longer period than during two lives in being. (Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], § 42; Schettler v. Smith, 41 N. Y. 328.) The property referred to in said clause is the residence of the testator in Schenectady and will be spoken of hereafter as the residence. The question presented to the court is to determine who takes the residence. It is claimed (1) by the remaindermen — the children of daughters; (2) by the residuary legatees; (3) by the heirs at law.
It is (¿aimed that, though the trust is void, the following devise to the children of the daughters need not fail; that it can be severed from the trust provision and be upheld. There are cases where courts have declared a trust void and yet have upheld the devise or bequest to the remaindermen. In each of
Does the residence then go to the heirs at law or under the residuary clause? The residuary clause of the will is as follows:
“Sixth. All the rest, residue and remainder of my estate, both real and personal, of every name, kind and description, and wheresoever situated, and not hereinbefore disposed of, I give, devise and bequeath unto my said two sons, Albert J. Levi and Sidney J. Levi, share and share alike.”
Deference is made by those who claim the residence passes to the heirs at law to the words, “not hereinbefore disposed of.” These words add nothing to the meaning of the clause. The residue of the estate is that part of the estate not before legally disposed of. The trust clause being void, and the devise following it falling with the trust estate, the property sought to be disposed of is not disposed of, and it comes within the exact terms of the residuary clause. (Riker v. Cornwell, 113 N. Y. 115; Anthony v. Van Valkenburgh, 154 App. Div. 380; Langley v. Westchester Trust Co., 180 N. N. 330, 331.) “When it is possible to cut out the invalid provisions, so as to leave intact the parts that are valid, and to preserve the general plan of the testator, such a construction will be adopted as will prevent intestacy, either partial or total, as the case may be.” (Kalish v. Kalish, 166 N. Y. 368.)
I have given full consideration to the argument that the testator intended to give his two sons a “specific residue,” and I am unable to so conclude. The residuary clause is broad. “All the rest, residue and remainder of my estate, both real and personal, of every name, kind and description and wheresoever situated,” is the expression, and it could hardly be made more comprehensive. It indicates plainly that he did . not
There is now no distinction between invalid devises and invalid bequests, “as it respects the operation upon them of a general residuary clause.” (Cruikshank v. Home for the Friendless, supra.)
A decision accordingly may be presented.