Cromwell v. Cromwell

| New York Court of Chancery | Oct 15, 1835

The Vice-Chancellor:

The Revised Statutes, which were in force when this will was made and took effect, provide “ that the absolute ownership of personal property shall not be suspended by' any limitation or condition whatever for a longer period than during the continuance and until the determination of not more than two lives in being at the date of the instrument containing such limitation or condition or if such instrument be a will for not more than two lives in being at the death of the testator” : 1 R. S. 773, § 1;

The question is : whether this case comes within the section just quoted? Is there, by this will, a suspension of the absolute ownership beyond the lives of two persons in being at the death of the testatrix ?

If the will bequeath the property to the executors in trust or convert it into a trust fund in the hands of the executors for the benefit of the three sons for life in joint tenancy, creating but one estate or interest in the whole fund and preventing a partage or division until the termination of all three of the lives and, in the meantime, the interest of persons who are to take in remainder be contingent, then, according to the opinion of the Chancellor, in Lorillard v. Coster, the whole trust would be void. _ But I think the present is not such a case. According to my understanding of the will in question, the property is given in several undivided third parts. The three sons take as tenants in common for life, with benefit of survivorship in the event of either dying without issue—the issue surviving the parent to take his share. In this way the absolute ownership in each share or third, considered distinctly, is not suspended for three lives. It is only suspended in fact for one life, for upon the death of any one of the first takers, his share vests in the survivors or survivor or in the deceased first taker’s child or children. It is not a case, therefore, within the statute. In Lorillard v. Coster, the chancellor made a similar distinction—and it is sound.

It is the duty of the court to . give effect to the whole will, unless some part or parts of it are clearly against the provisions of the statute or the policy of the law. The will can be supported ; and the complainant’s bill must be dismissed, with costs.