29 F.2d 412 | S.D.N.Y. | 1928
(after stating the facts as above). Both personally and as representatives of a class too numerous to be brought in, plaintiffs sue as heirs and descendants of Christopher and Valentine Emerick. They do not claim as heirs and next of kin of John Nicholas Emerick, nor does it appear who his heirs and next of kin were. To succeed, they must therefore trace their title through the trusts declared by John Nicholas Emerick during his lifetime, and confirmed in his will. If these trusts be void, this suit must fail, even if upon the allegations of the bill it could be said that the heirs and personal representatives or next of kin of John Nicholas Emerick were at one time entitled to an accounting from John Jacob Astor, Sr., as the trustee of the resulting trust or as the surviving member of a partnership.
The validity of the trust is to be determined by the common-law rule against perpetuities which prevailed in Pennsylvania and in New York prior to the death of John Nicholas Emerick. Unless it was intended that descendants of the two brothers living when the trust was created should then take a vested interest in the trust property which they could immediately alienate, and which upon their deaths would pass to. their representatives (see Conklin v. Conklin, 3 Sandf. Ch. [N. Y.] 70, and Tucker v. Bishop, 16 N. Y. 402), the gift over, limited as it was upon the termination of a prior estate in trust for 90 years, was clearly invalid at common law. Hillyard v. Miller, 10 Pa. 326; Johnston’s Estate, 185 Pa. 179, 39 A. 879, 64 Am. St. Rep. 621; Gerber’s Estate, 196 Pa. 366, 46 A. 479; Curtis v. Lukin, 5 Beav. 147; Palmer v. Holford, 4 Russell, 403; Speakman v. Speakman, 8 Hare, 180; Baker v. Stuart, 28 Ont. 439.
Intention that the descendants of the two brothers living when the trust was created-should take no vested interest in the estate is apparent on the face of the instruments. The simple purpose to tie up this estate for 90 years without providing for the support of any living person evinces a controlling desire to place beyond the reach of any living descendant of his two brothers any share in his estate whatsoever. Obviously the objects of his bounty were yet unborn. Indeed, it is not even alleged that any descendants of the two brothers were in being when the trust was declared. Not only in the scheme, but in the language of the gift, is the purpose to withhold the vesting of any interest made clear. In plain language, the gift itself is postponed until the 90 years have run. For it is said: “After which time said estate, together with the accumulations therefrom, shall be given to and divided between the descendants of my two brothers.” Substantially the same phrase recurs in the will, and the provisions of both instruments contemplate a determination of the descendants of the two brothers living when the 90 years have passed so that distribution may then be made to them. There was no immediate grant. The expiration of 90 years was the event which was intended to indicate which of the brothers’ descendants were to take, and their taking was made contingent upon their Surviving that period. The only gift was of the estate together with the' accumulations after the period of accumulation had passed. Futurity was thus annexed to the substance of the
It would indeed be grossly repugnant to the whole scheme to say that the donor intended to vest any interest in descendants of his two brothers living when the trust was declared, which they might alienate during the period of accumulation. Resort to rules of construction is futile, because the rule of intention overrides all such. Robinson v. Martin, 200 N. Y. 159, 167, 93 N. E. 488. The gift over is therefore void, and the gift in trust also fails because its only purpose was accumulation for the ultimate donees who took nothing. Thorndike v. Loring, 15 Gray (Mass.) 391; Raker v. Stuart, supra; Gray, “Rule against Perpetuities,” §§ 242, 671, 674.
It follows that upon the death of John Nicholas Emeriek his heirs and next of kin succeeded to his estate, including the right, if any there was, to an accounting of the property here in question; and the plaintiffs have no standing, as they do not claim under them. This conclusion results in the dismissal of the complaint, with costs, and makes unnecessary the consideration of any other question presented.
