72 N.Y.S. 239 | N.Y. App. Div. | 1901
This action was brought to secure a judicial construction of the last will and testament of the late Mathias Bindrim, who died on October 6, 1894, leaving him surviving a widow and seven children, and resulted in a judgment declaring certain pi’Ovisions of the said will void, as contravening the statute inhibiting the suspension of the power of alienation during a period of more than two lives in being at the time of the creation of the estate. The guardian ad litem of the infant defendants appeals from the judgment and from an order denying the guardian an allowance.
Mathias Bindrim died seized and possessed of both real and per sonal property, and by his will, probated December 24, 1894, he gave, devised and bequeathed his entire estate to his executors, with power of sale, but in trust, to pay the income and profits thereof to his widow during her life, and upon her death to divide the estate
It is urged by the appellant that this last clause may be disregarded for the purpose of sustaining the previous provision for the education, maintenance and support of the grandchildren, it not being necessarily involved in, the scheme of the will, and it may be that such action would be' supported by the authorities. The difficulty is, however, that with this clause entirely eliminated from the will, it is upon no better footing. While we are fully agreed with the appellant that it is the province of the courts to give effect to the declared intention of the testator, this rule is subject to the limitation that the testator-shall not seek to do that which is unlawful; when he attempts to do this, it is the duty of the court to defeat his
In the case now before us Eva Bindrim and her husband are both living. The gift of the testator is to the grandchildren by this pair, and in legal contemplation a gift to a class is an aggregate sum to a -body of persons uncertain in number at the time of the gift, to be ascertained at a future time, who are to take in equal, or- in some other definite proportions, the share of each being dependent for its amount upon the ultimate number. (Matter of Brown, 154 N. Y. 313, 326, and authorities there cited.) And a devise or bequest of a corpus or aggregate fund to children as a class, where the gift is not immediate, vests in all the children in existence at the testator’s death, but so as to open and let in any who may come into existence afterwards, at any time before the fund is
If we look beyond the clause of the wilLcreating the trust for the children of Eva Bindrim to the ulterior limitations contained in the 2d numbered paragraph of the will, we shall encounter new difficulties in sustaining the intention of the testator. He provides that “ In case of the death of any of my said children or grandchildren under the age of twenty-one years, the share of such child shall go to his or her issue,” etc. Such a contingent limitation over necessarily suspends the power of alienation, provided it is or may be in favor of persons not in being at the death of the testator, and the suspense continues so long as there is a possibility that a person may come into being who would be entitled to take under the ulterior limitation. That is the situation in this case. Issue not yet in being may be born who will be entitled to take under the will (Cochrane v. Schell, supra), and we are thus again confronted with a condition fatal to the contention of the appellant. In no view that we are able to take under the authorities can this will be sustained in the clauses now under consideration; it undertakes to do what the law says shall not be done, or, what is to the same purpose, it permits to be done what may not lawfully be accomplished, and it cannot be sanctioned by the courts.
We are unable to find any authority for reversing the order deny- ■ ing to the guardian ad litem a special allowance. The infants have
The judgment and order appealed from should be affirmed, with costs.
Goodrich, P. J., and Sewell, J., concurred Hirschberg, J., concurred in result; Jenks, J., taking no part.
Judgment and order affirmed, with costs.