146 N.Y.S. 657 | N.Y. App. Div. | 1914
It is within the jurisdiction of a court of equity to entertain a suit, at the instance of one of the next of kin of a testator not interested under the will, for the construction of the will involving the annulment of a trust or other disposition of personal property by will, and to declare a resulting trust in favor of the next of kin as against the executor who holds the property. (Read v. Williams, 125 N. Y. 560; Tonnele v. Wetmore, 195 id. 436; Kalish v. Kalish, 166 id. 368.) The executor and trustee, who is a member of the bar in' New Jersey, testified that voting trust agreements with respect to capital stock are lawful in that State, and that there is no limitation with respect to the period for which they may be created. But we are not concerned with the validity or effect of the directions, with respect to the management of the corporation through stock control, given by the testator, by paragraph 3 of the will, to his trustees. If the trustee should fail or refuse to observe the directions then those questions might arise between him and those beneficially interested in the stock, but they are not presented for decision now. We have merely to decide whether any attempted disposition of property by the testator is invalid. It is stated in the will that he gives and bequeaths this stock to his executors in trust for the period of twenty-five years. He not only attempted to make them voting trustees of the stock for that period, but he expressly authorized them to collect and distribute the income, if any, from the stock during that period and to pay the same to the legatee Ourrey so far as necessary to make up the amount of $2,100 given to her by paragraph 4, and to divide the surplus, if any, and all of it in the event of said Ourrey’s death before the expiration of twenty-five years, between the testator’s sister Florence and his nephew until the determination of the trust period of twenty-five years, with a proviso that on the death of Florence, her husband, if living, and if not, her children, should take her share, and if the nephew should die his share of such income was to go to the sister if living, and if not, to. her husband, and if he should not be living, then to her children. In order to accomplish his purpose with respect to the development of the corporation, for
I am of opinion, therefore, that there was a valid trust created during the life of Mrs. Currey, but that the trust attempted to be created for the period of twenty-five years was void.
Counsel for the executor respondent contends that if the testator contemplated a trust for the period of twenty-five years which would be invalid, that provision may be disregarded, and the trust sustained as one for the life of Mrs. Currey, and the will upheld as a valid disposition of the remainder at that time, and counsel for all the respondents contend that, in any event, in order to sustain the will as a disposition of the
It follows, therefore, that the judgment should be reversed, with costs to appellant and to the executor, payable out of the estate, and judgment should be entered in favor of the plaintiff to the effect that the trust in the 4th paragraph of the will is valid for the life of Mrs. Ourrey, and that the provisions thereof disposing of the income of the residuary estate during that period are valid, but that the further trusts with respect to income until the expiration of the twenty-five-year period and the disposition of the remainder of the residuary estate are void, and that upon the death of Mrs. Ourrey the next of kin of the testator will he entitled to take in possession the residuary estate as intestate property.
Ingraham, P. J., McLaughlin, Scott and Hotchkiss, JJ., concurred.
Judgment reversed, with costs to the appellant and to the executor, and judgment ordered for plaintiff as directed in opinion. Order to be settled on notice.