35 N.Y.S. 342 | N.Y. Sup. Ct. | 1895
The legacies bequeathed to the appellants are not expressly charged upon the real estate of which the testatrix died seised, by any provision of the will, nor does it furnish any implication of her intent to that effect. In re City of Rochester, 110 N. Y. 159, 17 N. E. 740; Brill v. Wright, 112 N. Y. 129, 19 N. E. 628; Morris v. Sickly, 133 N. Y. 456, 31 N. E. 332. But it is urged that extrinsic circumstances appearing by the evidence required the conclusion that the intention of the testatrix was that those legacies should be a charge upon the realty. If that contention is supported, they are entitled to that advantage. McCorn v. McCorn, 100 N. Y. 511, 3 N. E. 480; Briggs v. Carroll, 117 N. Y. 288, 22 N. E. 1054. The appellants were nephews of the testatrix, and at the time of her death they were her only heirs and next of kin. Her will was made in September, 1886, and she died in January, following. The intention
In the view taken of the fourth clause of the will, the contention that by its provisions the power of alienation of the real estate, and the absolute ownership of the personal property therein mentioned, are unlawfully suspended, is not sustained. The purpose of the testatrix evidently was that Edward G. Burns, during his life, and Mary G. Burns, if she survived him, so long as she remained his widow, should have the use of the property. And the limitation over was to the use of Melita Black and Isabella S. Burns, without the creation of any trust by that clause of the will. If the use were restricted to the income, it may be that the executors, although not named in that connection, might be treated as the trustees, without the expression of any devise to them, and a trust be deemed created, within the statute. 1 Rev. St. p. 729, § 55. But the provisions in that clause, giving Melita and Isabella the beneficial enjoyment of the remainder of the estate in that property without intervention of any recognized trust in another, gave to them the estate in remainder, not cut down by the declaration of a mere passive or naked trust. Id. pp. 727, 728, §§ 47, 49. And such must be deemed the legal effect of the devise to them, unless there is elsewhere in the will some qualification of the provisions in that respect of the fourth clause. Rawson v. Lampman, 5 N. Y. 456; Bank v. Holden, 105 N. Y. 415, 11 N. E. 950; Greene v. Greene, 125 N. Y. 506, 26 N. E. 739. The disposition of this property by the provisions of the fourth
By the seventh clause the executors take the property there referred to in trust for Melita Black, and, in execution of it, are to apply the income of that estate, or so much of it as may be necessary, to her education and support. They, are also directed to use sufficient of the income to give Isabella S. Burns like educational advantages, and if the income is not sufficient they are to appropriate so much ■of the corpus of the fund to these objects as may be necessary for such purposes. To this, standing alone, there can be no objection going to its validity. The eighth clause follows, giving direction for the ultimate disposition of this trust estate in the event that Melita Black dies without issue. Thus far there is no illegal suspension of alienation or ownership of the estate. But it is urged that the seventh and eighth clauses are rendered invalid by the provisions of the ninth clause, which is to the effect that, if Melita leaves children surviving her, the estate is to be held in trust until the youngest of them arrives at the age of 21 years, when it is to be divided between them. There might be some force in this contention, if the provisions of the seventh clause were dependent upon those of the ninth clause. Rice v. Barrett, 102 N. Y. 161, 6 N. E. 898. But they are not. The provisions of the seventh clause created the trust, and, for the purpose of its execution as there provided, they are complete, and independent of those which follow. While the devolution of the estate in the events mentioned was within the scheme which the testatrix had in view when she made the several provisions of her will, those of the seventh and ninth clauses are not in such relation, or so united, as to render the execution of the former, in any sense, dependent upon the validity of the latter. Savage v. Burnham, 17 N. Y. 561; Kennedy v. Hoy, 105 N. Y. 134, 11 N. E. 390.
The question of the validity of the ninth clause had no consideration of the trial court, and none is necessary to the result on this review. The judgment should be affirmed, with costs of this appeal to the respondents, payable out of the estate. All concur.