1 Pow. Surr. 513 | N.Y. Sur. Ct. | 1893
—The testator, by the fifth clause of his will, provides for the investment during the lifetime of his widow of the surplus of his personal estate after paying legacies and carrying out the provisions of his will, and directs the division of the-“investment” and the accumulations thereof, together with his residuary estate, among certain designated persons upon the death of his widow. The provision for investment for the purpose specified is invalid, as involving an accumulation of the income and profits of personal property not authorized by law. An accumulation of such income and profits is only allowed for the benefit of a minor, and must cease at the expiration of his-minority. 4 Rev. St (8th Ed.) p. 2516, pt. 2, tit. 4, c. 4, secs. 3, 4. The illegality of the direction for accumulation does not vitiate the provision for the ultimate division of the principal of the fund. That is valid. The disposition of the surplus or accumulated income is provided for by the statute. It declares, that when, in consequence of a valid limitation of an expectant estate, there shall be a suspension of the power of alienation or ownership, during the continuance of which the rents and profits shall be undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the persons; presumptively entitled to-the next eventual estate. Id. p. 2435, tit. 2, art. 1, c. 1, sec. 40. This section, although embraced in the title in respect to real estate, has been held applicable to personal as well as real property. Kilpatrick v. Johnson, 15 N. Y. 322; Gilman v. Reddington, 24 N. Y. 19. The parties