In re the Construction of the Last Will & Testament & Codicil Thereto of Allen

188 A.D. 867 | N.Y. App. Div. | 1919

Per Curiam:

It does not' result from the undoubted illegality of the disposition of the residuary estate after the death of the wife and of Eva B. Graham that the trusts are void. We know of no reason why it is not competent for a testator to provide for particular estates in trust or for life which will be valid although no disposition is made of the residue. Possibly the trusts might be of such a nature as to make it unjust that’ they should be upheld if the residuary bequests should be held to be void. Such was the case of Brown v. Quintard (177 N. Y. 75). But in the present case no injustice results from declaring the residuary estate void and saving the will as to the trusts.

The question then before us is whether, under the terms of the will and codicil, the trust suspends the absolute ownership of property for more than two fives in being at the death of the testator. This question cannot be answered on the present record, for we have no evidence before us that any of the employees of the corporation, mentioned as beneficiaries in the will or in the codicil, were in the employ of the corporation at the time of the testator’s death. If they were not in such employ, the trust may be maintained as continuing during the lives of the wife and of the stepdaughter, Eva B. Graham, and the 12th clause of the will may be sustained as an authority to the executors to add from the corpus of the estate, during the fife of the wife, such sum or sums as in their opinion might be necessary for her proper support and maintenance.

The decree of the surrogate is reversed, with costs of the appeal to all parties who have appeared, payable out of the estate, and the case remitted to the surrogate for determination upon such facts as may be adduced on a new trial regarding the conditions as they existed at the time of the execution of the will and the codicil and of the death of the testator. The judgment to be entered upon this proceeding does not affect the conclusive nature of the decrees that have been rendered upon the accounting of the executors, with the contents of which we are not acquainted.

Jenks, P. J., Putnam, Blackmar, Kelly and Jaycox, JJ., concurred.

Decree of the Surrogate’s Court of Westchester county reversed, with costs of the appeal to all parties who have appeared, payable out of the estate, and case remitted to said court for determination in accordance with opinion. Order to be settled on notice.