103 N.Y.S. 307 | N.Y. App. Div. | 1907
The action is for specific performance of a contract made by the respondent’s testatrix, whose will was admitted to probate in the District of Columbia. The respondent is sued as executor and trustee, and by demurrer seeks to raise the question of. want of • jurisdiction. • It is not disputed that the courts of this State have no jurisdiction over a foreign executor, but the appellants seek to sustain the complaint against the respondent as trustee, and as-tiie complaint asks for relief which might be granted against the trustee, it becomes necessary to determine the contention of the respondent which prevailed before the learned justice at Special Term that the trust provision is void as offending the statute "against perpetuities. I quote the material part of said provision :
“Fifth. I give and devise all my real estate.situated in the County of Richmond in the State of New York in equal shares to the children of my deceased son, William F. Coston, in the manner following, that is' to say : Said real' estate, shall'be held in trust by iuy executor hereinafter named, until the youngest of said children, shall attain-the age of twenty-five years, at which time they shall take the same in fee simple, the net income therefrom being in the meantime paid to them or for their use and. benefit.”
Five children, of said William F. Coston survived the testatrix. The complaint is silent as to their respective ages, except for the allegation to the effect that two are minors over the age of fourteen, and that the youngest will not attain the age of twenty-five years until the 15th day of July, 1913. The learned justice at Special Term was of the opinion that the power of alienation was suspended
Tire expression “until the youngest of said children shall attain the age of twenty-five years,” seems hardly to require construction. There might be some doubt whether the words “ the youngest of said children ” referred to the date of the will or the death of the testatrix, but this doubt, if doubt there could be, is removed by section 54 of the Real Property Law (Laws of 1896, chap. 547), so that we may start with the premise that the expression means the youngest of said children living upon the death of the testatrim. The property is to be held then until that child “ attain .the age of twenty-five years/’
Hirschberg, P. J., Woodward, Jenks and Hooker, JJ., concurred.
Interlocutory judgment reversed, with costs, and demurrer overruled, with costs, with leave to the defendant to plead over on payment of costs.