194 Misc. 972 | N.Y. Sur. Ct. | 1949
In this trustee’s accounting a construction is sought respecting paragraph ninth of the will. Thereunder tes
It is conceded and it is settled law that the life estate attempted to be created for the son’s surviving wife, Clare, cannot be sustained. Where a secondary life estate is limited upon the life of any wife whom the primary life tenant might marry it is void as violating the rule against perpetuities (Schettler v. Smith, 41 N. Y. 328; Van Brunt v. Van Brunt, 111 N. V. 178; Meeker v. Draffen, 201 N. Y. 205; Matter of Trotter, 175 Misc. 356; Matter of Copp, 176 Misc. 777). Such wife may be a person born after the death of the testator and not in being at the date of the creation of the estate.
The question therefore arises as to disposition of the remainder. That determination depends upon whether the remainder is vested or contingent. It is plain here that futurity is annexed to the gift of the remainder. Distribution was directed in the first instance to be made to the issue of the primary life tenant surviving him, if he left issue, and until his death it could not be ascertained whether he left issue or who they might be. Vesting as to such issue was postponed until his death. Testator further provided that in default of issue of his son a trust be created for his wife, if he left a wife surviving, and distribution of the
We come now to ultimate distribution. The trust under paragraph ninth was not part of the residuary estate. It was for a fixed amount carved out of the general estate and not part of the residuary disposition. Beekman v. Bonsor (23 N. Y. 298) has, therefore, no application. Since, however, there was an abatement of the legacies and trusts under the will, the remainder of the trust accounted for should be first applied toward their payment in full (Matter of Thompson, 126 Misc. 99, mod. 218 App. Div. 130, affd. 245 N. Y. 565; Matter of Reynolds, 124 Misc. 435, affd. 215 App. Div. 763, revd. on other grounds 242 N. Y. 389; Matter of Farmers’ Loan & Trust Co., 186 App. Div. 722, mod. on another point 226 N. Y. 691; Matter of Title Guar. & Trust Co., 195 N. Y. 339, revg. 127 App. Div. 118). There can be no rest, residue or remainder until all legacies and trusts have been satisfied in full. If, after the legacies and the other trusts have been paid in full there is left any part of the remainder, it should be distributed in accordance with the residuary clause which is broad enough to carry all undisposed of provisions in the will (Lamb v. Lamb, 131 N. Y. 227).
Submit decree on notice construing the will and settling the account accordingly.