104 N.Y.S. 1092 | N.Y. App. Div. | 1907
The judgment appealed from declares invalid an attempted appointment contained in the will of-Frances Jones. George Jones, the father of France? 'Jones, died,in 1886, his heirs being his three daughters, Bebecca Mason Jones, Frances Jones and Margaret' Smith, his grandson Daniel Butler .Fearing, his grandson Lewis Quentin Jones, and his great granddaughter Frances. Coster Jones (now Frances Coster Kip), the two latter being,the only descendants of a de'ceased son. He left a will whereby' he gave to Ins executor the real, estate in the city of New York known as No. 70 Broadway “ during the life of the longest liver of my daughters Frances Jones and Bebecca Mason Jones,” in trust to lease the sanie and to pay the net income arising therefrom to the above-named heirs, in certain' proportions, one-fifth of said income tb be paid to his daughter Frances Jones, and a like proportion to each of Ins other daughters. The will then .provided as follows: “At the death Of the longest liver of my said daughters Frances and Bebecca, I empower my executor to sell the said premises number 70 Broadway, and I give and devise the proceeds thereof,, as follows : One-fifth thereof to the . appointees of, my daughter Frances Jones, by deed or by will and, in-default of such appointment, to her heirs-at law.” The remainder of the proceeds of the sale of the property were similarly disposed of in favor of the other heirs. - Frances Jones outlived her sister Bebecca, and died on April 15, 1906. She liad never married, and left a will by which she apparently attempted to exercise the power of appointment given to her by her father’s will. She gave to the New York Life Insurance and Trust Company, as' trustee, all the rest, residue and remainder of her estate of which she might die
This attempted appointment by Frances Jones is, by the judgment appealed from, declared to be invalid, as contravening the statute against perpetuities. It must be conceded that in estimating the extent of the suspension of the power of alienation, the will creating the power of appointment and the will attempting to exercise it must be read together as if constituting a single disposition. (Real Prop. Law [Laws of 1896, chap. 547], §§ 158,-159; Dana v. Murray, 122 N. Y. 604.) The validity of the attempted appointment by Frances Jones must, therefore be tested by reading the provisions of her will into the will of George Jones, and so reading, We find the absolute power of alienation suspended during the life of the longest liver of Rebecca Mason Jones and Frances Jones, and, after the death of said longest liver, for the'lifetime of Frances Coster Kip. •There can be no doubt that by limiting the trust estate upon the life of the “ longest liver ” of two daughters, George Jones effectually suspended the absolute power of alienation for two lives. (Cross v. U. S. Trust Co., 131 N. Y. 330.) By necessity the trust estate was limited upon the life of the “ shortest liver ” of the two, as well as upon that of the “ longest liver,” and hence must exist during the two lives. It would seein to follow that a further limitation for the life of Frances Coster Kip must be held to be violative of the . statute
The judgment must be affirmed, with costs in this court payable out of the fund to all parties separately appearing.
McLaughlin, Laughlin and Houghton, JJ., concurred; Patterson, P. J., concurred in result.
Judgment affirmed, with costs to all parties separately appearing to be paid out of the fund.
See 1 R. S. 723, §§ 14-16; revised in Real Prop. Law (Laws of 1896, chap. 547), § 32.—[Rep.
See 1 R. S. 730, § 63; as amd. by Laws of 1893, chap. .452; revised in Real Prop. Law (Laws of 1896, chap. 547), § 83, as amd. by Laws of 1903, chap. 88.— [Rep, --