27 N.Y.S. 1094 | N.Y. Sup. Ct. | 1894
This action was brought by the children of James W. Lawrence, deceased, against the executor of the will of James W. Lawrence, and Helen Or. Lawrence, the infant daughter of the plaintiff, James B. Lawrence, for a judgment declaring that the will of said James W. Lawrence is void, as unlawfully suspending the absolute ownership of personal property, and for an accounting by the executor, and distribution of the property among the plaintiffs. Judgment having been rendered in favor of the plaintiffs, and an interlocutory judgment entered, this motion for a new trial is made under section 1001 of the Code. The testator died on the 21st of April, 1891, leaving him surviving his widow, two daughters,—Caroline married, Sarah unmarried,—his son James B., the plaintiff, and his granddaughter Helen, the daughter of his said son. On the 2d July, 1885, the testator executed a will, which was duly admitted to probate, and letters testamentary issued to the defendant Richter on the 30th April, 1891. There was also a codicil to said will, bearing date the 3d of August, 1865, which was also probated, but Avhich does not affect the question involved in this action. The testator’s widoAv died on the 29th of August, 1891, the whole estate being personal property. That portion of the will which is involved in this action reads as follows:
“Third. All the remainder of my estate real and personal I give to my executors in trust: (1) That they sell and dispose of the same at private sale, or at public auction, at such time or times, and upon such terms, as they deem adAÚsable, and invest the proceeds thereof and keep the same invested. (2) That they pay the income thereof to my wife during her natural life, with leave to my executors to pay to her, from time to time, any part or the whole of the said principal, if, in their judgment, the same shall be necessary for her comfortable maintenance and support. (3) That upon the decease of my wife they divide so much of my estate as may then remain into equal portions to the number of children me surviving; the issue, if living, of a deceased child to count one in such division. (4) That they pay the income of one such portions to my daughter Caroline Roof during her natural life, and, upon her separate receipt and upon her decease, the principal thereof shall be added to and disposed of as a part of the- said other portions. (5) That they pay the income of one of such portions to my daughter Sarah Catherine during her natural .life, and, upon her decease, that they pay the principal thereof to her issue, if any; if none, then the same shall be added to and disposed of as a part of the said other portions. (6) That they pay the income of one of such portions to my son James Brewster during his natural life, and, upon his decease, that they pay the principal thereof to his issue, if any; if none, then the same shall be added to and disposed of as a part of the said other portions, with leave, however, to my executor to pay from time to time, or at any time, to my said son, the whole or any part of the said portion, if, in their judgment, they deem such payments to be for the best interest of my son.”
It will be seen by an examination of this will that the testator first gives the income of his whole estate to his widow during life, and upon her death his executors are directed to divide his estate-into portions equal to the number of children he might IeaA’e him: surviving, the issue, if living, of a deceased child to count one in. such division. The executors were directed to pay the income of one of such portions to each of his daughters, and the remaining: portion of income to his son, the plaintiff James B. Lawrence-After the bequest to his daughter Caroline, he provides that upon.
There is no question but that the bequest of the remainders over after the termination of the lives of the children was a violation of the statute, in that the absolute ownership of the estate was suspended for more than two lives in being at the death of the testator; and it is for this reason that it is contended upon the' part of the plaintiffs that the whole bequest is void, and that the estate must be divided as in case of intestacy. This is undoubtedly true, if the requests are so interwoven that they cannot be separated, and the testator cannot be said to have a separate and distinct intention in regard to each. It has become a familiar principle in our law since the decision of the case of Schettler v. Smith, 41 N. Y. 328, that where several trusts are created which are independent of each other, and each complete in itself, some of which are legal and others illegal, and the legal can be separated from the illegal, and upheld without doing injustice, or defeating what the testator might in the emergency be presumed to wish, the illegal trust may be cut off, and the legal permitted to stand. This rule was lately enunciated in the case of Kennedy v. Hoy, 105 N. Y. 134, 11 N. E. 390, and our attention has been called to no case which in any way conflicts with the rule thus laid down. In support of the plaintiffs’ contention this last case is cited as an authority, as also the cases of Tilden v. Green, 130 N. Y. 29, 28 N. E. 880, and Cross v. Trust Co., 131 N. Y. 330, 30 N. E. 125. An examination of the case of Kennedy v. Hoy seems to show that it is peculiarly an authority in favor of the proposition that, as far as the provision for the first two life estates is concerned, the will was valid, and that only the remainders over were affected by the unlawful attempt to dispose of the same upon the part of the testator. In the case last cited the will of the testatrix directed a share of her estate to be placed in the hands of her executors as trustees, the income thereof to be applied to the support and maintenance of her son and his family during his life, and after his death the income to be paid to his surviving children until they reached the age of 21, when the principal was to be divided among them, share and share alike. In the case of the death of the son without issue, or of all his children dying subsequéntly to¡ his decease before reaching the age of 21, the will directed the share to be divided among her other children. The son survived the testatrix, having a wife and two children; and during the lifetime of the son a judgment creditor filed a bill to reach the trust fund, he claiming the trust to be void for unlawful suspension of the absolute ownership, and that the title to the trust property vested in the son as the heir of his mother. The judgment of the