259 A.D. 849 | N.Y. App. Div. | 1940
This is a proceeding for a judicial construction declaring invalid the provisions of paragraphs “ 6th,” “ 7th,” “ 8th ” and “ 9th ” of the will of testatrix, on the ground that they involve the suspension of the power of alienation for more than two lives in being at the date of the death of the testatrix; and as to paragraph “ 6th,” on the further ground that its provisions are indefinite and uncertain. Decree of the Surrogate’s Court, Westchester County, modified by adding thereto a paragraph to the effect that the provisions of paragraph “ 9th ” of the will of testatrix are invalid and are to be deemed expunged from the will. As so modified, the decree is unanimously affirmed, without costs, and the matter remitted to the Surrogate’s Court for the entry of a decree accordingly. The provisions of paragraph “ 9th ” create a possible suspension for more than two lives in being of the power of alienation of the corpus of the trusts created by the provisions of paragraphs “ 7th ” and “ 8th ” of the will. But the provisions of paragraph “ 9th ” represent a subordinate intention of testatrix. Her primary intention was to give the income and the principal of the trusts to her two grandchildren. This intention may be fulfilled by excising paragraph “ 9th.” “ * * * an ulterior limitation, though invalid, will not be allowed to invalidate the primary dispositions of the will, but will be cut off in the case of a trust which is not an entirety.” (Matter of Colegrove, 221 N. Y. 455, 459. See, also, Matter of Lyons, 271 id. 204.) As the trusts created by the provisions of paragraphs “ 7th ” and “ 8th ” are saved by excising paragraph “ 9th,” the decree, therefore, should contain a statement to the effect that the provisions of paragraph “ 9th ” are invalid and are to be deemed expunged. With paragraph “ 9th ” eliminated, all the trusts created by the will are valid. There is no basis for the contention
