105 Misc. 273 | N.Y. Sup. Ct. | 1918
Lorinda B. Dutton died leaving a last will and testament, which was admitted to probate by the surrogate of Erie county on September 13, 1892. After making certain bequests by the “ fourth ” clause of the will the testatrix provided:
“ Fourth. I give, devise and bequeath all of my real estate, subject only to the above mentioned charge in favor of Eliza Parmellee, as follows: to my daughter, the said Eliza Dutton Clarke, for the term of her natural life and upon her death in trust, to my trustee hereinafter named, to divide into four equal parts, to lease the same and to collect the rents, issues and profits thereof and to pay and divide the same among my four grandchildren of my said daughter, viz.:
She appointed her son-in-law, Stephen C. Clarke, trustee to carry out the trusts by the fourth clause created. Eliza Dutton Clarke was her daughter and sole heir at law. Stephen C. Clarke, the trustee, died on May 4, 1908. Eliza Dutton Clarke is also dead. She left a last will and testament wherein and whereby she devised and bequeathed the bulk of her estate in trust for the benefit of the petitioner, Edith Dutton Clarke Bounds, for life with remainder over to the children of Mrs. Bounds.
The brothers of Mrs. Bounds, Edward D. Clarke,
The real question presented is the validity of the trust created by the fourth clause of Mrs. Dutton’s will.
If the will is to be construed as providing for the continuation of the trust until Stephen D. Clarke reached the age of twenty-five without the possibility of an earlier termination in the event of his death prior thereto, then the will offended against the provisions of the statute against perpetuities prohibiting the suspension of the power of alienation for more than two lives in being at the time of the creation of the trust. Real Property Law, § 42.
The courts, however, have construed similar provisions in other trust instruments to mean that the trust is to terminate on the person attaining the age specified, or sooner in the event of his death before specified age is attained. Appell v. Appell, 177 App. Div. 570; affd., without opinion, 221 N. Y. 602; Sawyer v. Cubby, 146 id. 192; Burke v. O’Brien, 115 App. Div. 574; Coston v. Coston, 118 id. 1; Matter of Lally, 136 id. 781; affd., 198 N. Y. 608.
The courts appear to have supplied by way of necessary implication the words “ or sooner ” as expressing the real intention of the creator of such a trust. Consequently it cannot be held that the trust clause of Mrs. Dutton’s will is void for the reason suggested.
It may be further suggested that the trust offends the statute because the words “ any youngest surviving grandchild ” refer not to the youngest surviving grandchild at the time of the death of Mrs. Dutton, but are used to designate the youngest sur
Where the language is ambiguous it is the duty of the court to so construe it as to uphold the will. Hopkins v. Kent, 145 N. Y. 367; Jacoby v. Jacoby, 188 id. 124; Boecher v. Smada Realty Co., 164 App. Div. 838.
In the light' of these decisions it would seem that the trust created by Mrs. Dutton’s will was, by its terms, to end upon her grandson Stephen D. Clarke attaining the age of twenty-five years — or sooner in the event of his death prior to that date. The duration of the trust was therefore measured by the lives of Mrs. Clarke and of her son Stephen, and kept within the limits permitted by the statute.
A limitation of a trust estate for an arbitrary period is held valid if an earlier termination is called for upon the expiration of two lives in which case the income may in the meantime be divided among any
We consequently hold that the trust created by Mrs. Dutton’s will is a valid one and that it terminated in 1900 when the youngest surviving grandson, Stephen D. Clarke, reached the age of twenty-five years. Prior to that date, however, his brothers, Edward D. Clarke and Townsend D. Clarke,"both died intestate and without issue. Consequently under the provisions of the will their respective shares fell into the residuary estate ‘‘ for the benefit of all my grandchildren in the same share and under the same trusts and limitations as provided in this clause of my will in all respects as if such share or portion had been included and formed a part of the original division.”
It follows that on the termination of the trust in 1900 the petitioner, Edith Dutton Clarke Rounds, became entitled to a conveyance of. one-half the real estate held in trust, and her surviving brother, Stephen D. Clarke, of the other half. Stephen D. Clarke died intestate and without issue in 1905. His father, Stephen C. Clarke, and his mother, Eliza D. Clarke, both survived the son, Stephen. The father, Stephen C. Clarke, would ordinarily have taken the inheritance of the son in any real estate owned by him, and section 84 of the Decedent Estate Law so provides “ unless the inheritance came to the intestate on the part of his mother.”
The son’s interest in the real estate in fact did come to him “ on the part of his mother ” as that term is defined by section 80 of the same statute, declaring it includes “ every case where the inheritance shall have come to the intestate by devise, gift or descent from the parent referred to, or from any relation of the blood of such parent.”
It probably would be unnecessary for a formal conveyance from a trustee under Mrs. Dutton’s will to vest a legal title in Mrs. Bounds, but as conveyancers passing title might possibly raise a question as to title without such a conveyance, and as no harm can come from the appointment of some one to formally execute such an instrument, the prayer of the petition is granted.
Ordered accordingly.
