48 Misc. 285 | N.Y. Sur. Ct. | 1905
It is contended by the three daughters of the testator, who are the residuary legatees under his will, that they are personally entitled to their respective distributive shares, after setting aside a fund sufficient to pay the annuities respectively bequeathed to Sara D. Avery, widow, and Mc-Dougal Avery, son, and to provide for the maintenance of the homestead, and their contention in this respect is based upon
The question, therefore, of primary importance in this case is whether, under the provisions of this will, the absolute ownership of personal property and the power of alienation of real estate is unlawfully suspended, and dependent upon the answer to this question being in the affirmative arises the further one of the remedy to be applied.
Section 2 of the Personal Property Law, as applicable to the primary question involved, reads as follows: “Section 2. The absolute ownership of personal property shall not be suspended by any limitation or condition, for a longer period than during the continuance and until the termination of not more than two lives in being at the date of the instrument containing such limitation or condition; or if such instrument be a will, for not more than two lives in being at the death of the testator; in other respects, limitations of future or contingent interests in personal property, are subject to the rules prescribed in relation to future estates in real property.”
■Section 32 of the Real Property Law, which prescribes the limitations on the creation of future, contingent interests in real property, and which is applicable in determining the validity of limitations respecting personal property, by force of the foregoing statute, reads as follows, so far as applicable to the facts of this case, viz.: “ The absolute power of alienation is suspended, when there are no persons in being by whom an absolute fee in possession can be conveyed. Every future estate shall be void in its creation, which shall suspend the absolute power of alienation, by any limitation or condition whatever, for a longer period than during the continuance of not more than two lives in being at the creation of the estate.”
These statutes are in pari materia and by reason of this fact, as well as the fact of the reference by the one to the other, are to be construed together, and hence it has become the settled
The statutory test, therefore, of what constitutes a suspension of the power of alienation as to real estate, and of absolute ownership as to personal property, is that it occurs only when there are no persons in being by whom an absolute estate in possession can be conveyed. Sawyer v. Cubby, 146 N. Y.. 192-196; Murphy v. Whitney, 140 id. 545.
The number of persons in which the ownership and right of alienation exists is unimportant; if by their all joining in a conveyance an absolute title can be transferred, the requirements are satisfied. Williams v. Montgomery, 148 N. Y. 519-526. The court in this case citing authorities, s'ays: “ The test of alienability of real or personal property is that there are persons in being who can give a perfect title. Where there are living parties who have unitedly the entire right of ownership, the statute has no application. The ownership is absolute whether the power to sell resides in one individual or in several. If there is a present right to dispose of the entire interest, even if its exercise depends upon the consent of many persons, there is no uhlawful suspension of the power- of alienation. The ownership, although divided, continues absolute.”'
It is now the settled law in this State that absolute ownership is suspended in only one of two ways: 1. By the creation of a trust which vests the estate in trustees. 2. By the crea
It is important in dealing with questions arising under this statute, limiting the power of alienation and of absolute ownership, that we do not confuse them with the limitations prescribed. by section 33 of the Real Property Law, which provides that, “Successive estates for life shall not be limited, except to persons in being at the creation thereof; and where a remainder shall be limited on more than two successive estates for life, all the life estates subsequent to- those of the two persons first entitled thereto, shall be void, and on the death of those persons, the remainder shall take effect, in the same manner >as if no other life estates had been created,” Under this section a vested remainder can be created on two successive life estates and no more, and if a third life estate is attempted to be created prior to the absolute vesting of the remainder it would be cut off and eliminated by force of the provisions of section 35 of the Real Property Law, and the prior estates would be held to be good. Thus, successive life estates to A, B and. 0, with remainder over to D (a person in being) violates the provisions of this section as being an unlawful limitation, but would not offend the statute of perpetuities because the owners of the several life estates, joining with the tenant in remainder could convey 'an absolute fee in possession. In other words, it would, satisfy the test that there must be persons in being by whom an absolute fee in possession can be conveyed. Purdy v. Hayt, 92 U. Y. 446-451. Under this rule it is unimportant how many or what estates are existing in the property, whether they are vested or contingent, whether there are many or few owners of the estates and interests, for, if by uniting they can convey an absolute estate in possession, there is no suspension whatever.
'Having determined in a given case that there is a suspen
But in applying the test it must always be kept in mind that where, by the terms of an instrument creating an estate, there may be an unlawful suspension of the power of alienation or of the absolute ownership, the limitation is void, although it should, by subsequent events, turn out that no actual suspension beyond the prescribed period would have taken place. In other words, to render such future estates created by will valid, they must be so limited that in every possible contingency they will absolutely terminate within the period of two lives in being at the death of the testator or the estate will be held void. Herzog v. Title Guarantee & Trust Company, 177 N. Y. 86-99. Having stated the rule by which it is to be determined whether there has been any suspension of the power of alienation or absolute ownership, it remains necessary to state the rule to be applied in testing the question of whether such suspension is unlawful, as being in contravention of the statute, where any such suspension is found to exist. In such case the further inquiry must be made whether during two designated lives in being there must be persons in being by whom an 'absolute estate in possession can be conveyed or transferred. If this question be answered in the affirmative, there is no undue suspension of the power of alienation or of absolute ownership. Sawyer v. Cubby, 146 N. Y. 192; Robert v. Coming, 89 id. 225; Herzog v. Title Guarantee & Trust Co., 177 id. 86.
Inasmuch as the test to be applied in such cases is as to whether there are persons in being, or persons who must come into being during the period of the authorized suspension, it follows, and our courts have held, that where there is an ab
Under the Real Property Law we have estates in possession and in expectancy. Section 25 provides, “ Estates, as respects the time of their enjoyment, are divided into estates in possession, and estates in expectancy. An estate which entitles the owner to immediate- possession of the property is an estate in possession. An estate-, in which the right of possession is postponed to -a future time, is -an estate in expectancy.” Section 26 provides, “ Estates in expectancy are divided into, 1. Future estates; and 2. Reversions.” Section 27 defines a future estate as follows: “ A future estate, is an estate limited to commence in possession at a future day, either without the intervention of a precedent estate, or the determination, by lapse of time or otherwise, of a precedent estate created at the same time.” By section 28 a remainder is defined to be a future estate dependent upon a precedent estate. Section 30 defines-vested and future contingent estates as follows: “A-future estate is either vested or contingent. It is vested, when there-is a person in being, who would have an immediate right to the possession of the property, on the -determination of all the intermediate or precedent estates. It is contingent while the person to whom or the event on which it is limited to take effect remains uncertain.”
It is conceded that the will creates no express trust and vests no estate in trustees; and a trust will not be implied unless the execution of the will demands it, and never, if to do so will con
It is not claimed in this case that the provisions made for the widow and son in any manner violate the statute against perpetuities, and, hence, it is unnecessary to discuss the character, nature, or extent of their interests or estates. The part of the estate with which we are to deal, in determining whether there has been an unlawful suspension, as I understand the position •of counsel, is the estate remaining after providing for the annuities for the widow and son, and exclusive of the homestead and contents—the latter vesting absolutely in the daughters, subject to the widow’s life estate; and I shall so regard the matter and spealk of the estate to he dealt with as the residuary estate, for the convenience of reference. This residuary estate consists wholly of personal property. If, however, the residuary interest in the homestead and contents should be claimed to be involved in the question it would make no difference in the conclusions reached respecting an unlawful suspension., and hence I shall treat it as not involved.
These three daughters take their shares and interests in the estate in severalty and as tenants in common, both by force of the provisions of the statute which declares that, “ Every estate granted or devised to two or more persons in their own right, ■shall be a tenancy in common, unless expressly declared to be in joint tenancy ” (Real Property Law, § 56), and by force of the provisions of the will which divides the residuary estate between the daughters “ share and share alike.” The whole fund in this case is to he treated as a single fund, for the purpose of management only, and the bequests to the several daughters asi ■separate and distinct from each other. Steinway v. Steinway, 163 N. Y. 183; Locke v. Farmers’ L. & T. Co., 140 N. T. 135; Purdy v. Hayt, 92 N. T. 446.
The estates created by the “ Seventh ” paragraph of the will in favor of the issue of a daughter dying subsequently to the making of the will and before distribution, ten years after the testator’s death, are future, contingent estates.
As to the character of these several estates generally, see Dana v. Murray, 122 N. Y. 604; Campbell v. Stokes, 142 id. 23; (filman v. Reddington, 24 id. 1; Bowditch v. Ayrault, 138 id. 223; Purdy v. Hayt, 92 id. 446; Cochrane v. Schell, 140 id. 516; Steinway v. Steinway, 163 id. 183; Hall v. La France Fire Engine Co., 158 id. 570; Henderson v. Henderson, 113 id. 1.
While each daughter takes a presently vested future estate, yet she does not take an absolute title, because of the conditional limitation in favor of survivors and the substitute -conditional limitation in favor of issue. She takes a base or qualified fee, determinable by her death before the time fixed for distribution —in other words, a defeasible estate; and her title will only become absolute and perfect by her surviving the distribution period. It follows, therefore, that she cannot alienate the estate until her title becomes absolute by the expiration of the ten-year
Under these authorities absolute ownership and the absolute power of alienation is suspended in this case by both the conditional limitations, creating future, contingent estates in favor of issue and in favor of survivors.
The future, contingent estates created on behalf of issue are so limited as to render it impossible of present ascertainment as to who will take in the event of the parent’s death. They take, if at all, as primary and substituted legatees under the will (in the event of the death of the parent within the ten-year period), and not by inheritance from such parent; but they take as a class, uncertain in number, to be ascertained upon the happening of the event, the death of the parent, which will vest in them the absolute estate. Herzog v. Title Guarantee & Trust Co., 177 N. Y. 97. Until that event occurs the persons who will take are incapable of ascertainment, nor can it previously he deter- . mined whether there will be any issue in being upon the happening of the event. While these conditions create a suspension, the suspension is not an unlawful one because, there being an absence of any farther limitation, the estate vests in the issue of the daughter dying, at the time of her decease, and therefore, at the utmost, the suspension can continue only during the period of one life in being. If the daughter survives the ten-year period her ownership will become absolute, ¡and if she die in the interim those entitled to take as substitute legatees under this provision of the will—her issue—will be capable of ascertainment, and in them will become vested, in interest, the absolute ownership of the property, and the absolute power of alienation, with the time of payment, only, postponed until the expiration of the ten-year period.
The future, contingent estates, created in the daughter, by way of cross remainders, under the eighth paragraph of the will, in,
A supposed case, within the range of possibility, under this provision of the will is aptly put by counsel for the daughters, in his brief submitted in this case, thus: “ At the present time one of the daughters, Mrs. Jarvis, has no children. She has a vested estate, subject to be divested by her death before the expiration of ten years, and the enjoyment of that estate postponed by the directions of the will. Supposing she died at the expiration of the fourth year, her estate then is not vested in any one. Why ? Because the directions of the will are that it shall go to the daughter or daughters who survived at the expiration of ten years. It is impossible to tell how many of the daughters, or whether any of them, will be alive at that time. Each of the living daughters, however, has a contingent estate, or a possibility of receiving the deceased sister’s share, should she live at the expiration of ten years. We find two people who are presumably entitled to the lapsed estate of Mrs. Jarvis. Supposing now, another daughter die at the expiration of the sixth year. The portion that came to this daughter secondly deceased has already passed through the life of Mrs. Jarvis and
Before passing from this branch of the case, it seems advisable to make brief reference to the position taken by counsel for the executor upon a former hearing, whose brief is submitted by the special guardian for our consideration. The position taken was (1), that the daughters take a presently vested estate, subject to be defeated by death within the period of ten years fixed for distribution, and (2), that such vesting enables the daughters, by uniting with the executor, to convey an absolute title to the estate, and hence the power of alienation and absolute ownership is not suspended at all.
It seems clear to me that the statement of the proposition car
Having determined that the provisions of the will create an unlawful suspension of the power of alienation and absolute ownership, we are next called upon to apply the proper remedy for its correction.
It is now so thoroughly settled as to be deemed axiomatic that the cardinal rule in the construction of wills is to arrive at and give effect to the intention of the testator, where such intention may be carried into effect without violation of law; such intention to be derived from the context of the will itself, viewed in the light of all surrounding circumstances; and where, as in this ease, it is found that the provisions of the will violate some provision of law, public policy requires, and Our courts have established the doctrine, that, through the process of elimination and excision, the offending provisions will be cut off and dis
Any lengthy discussion of the law in relation to the application of the doctrine of elimination, and expunging of offending provisions of wills, for the purpose of validating them and preserving to the fullest extent possible the testamentary scheme and purpose of the testator, is rendered superfluous by the able presentation and discussion of the question by Judge Werner in Kalish v. Kalish, 166 N. Y. 368, and cases therein cited by him. In reviewing this doctrine at page 374, he says: “ Having demonstrated, as we think, that it is not only for the interests of all concerned in the estate, except the plaintiff, but also in direct furtherance of the testator’s plan, to uphold this will by simply eliminating the void intermediate trust and its necessary incidents, we have now to inquire whether there is any legal obstacle to such a course. It is axiomatic that courts cannot make new wills for testators who have failed to make valid wills for themselves. While recognizing the force of this truth courts have from the earliest times been compelled to choose between the alternatives of setting aside certain wills altogether, or of cutting out simply their void provisions. This necessity has led to the rule which is now firmly established in this state, that when the several parts of a will are so intermingled or interdependent that the bad cannot be separated from the good, the will must fail altogether; but when it is possible to cut out the invalid provisions, so as to leave intact the parts that are valid, and to preserve the general plan of the testator, such a construction will be adopted as will prevent intestacy, either partial or total, as the case may be. This case
‘ Courts should endeavor, by every reasonable intendment, and by a liberal construction, to sustain a testamentary disposition of property when, in so doing, they can give actual and just effect to the testator’s intent and validate at least the main, if not the true, part of a testamentary scheme which contemplates distinct and severable acts.’ -Analagous to the foregoing cases, are Robinson v. Robinson, 5 Lans. 168, where it was held that Wills may be void in part for some illegality or violation of
In the case of Smith v. Chesebrough, 176 N. Y. 317, the-court, quoting the rule of law laid down in the Kalish case, and applying it to the case then under consideration, says at page 322: “ If the invalid parts of the codicil can be expunged
■What then is the testamentary scheme of this testator ? He gives to his widow the use of the homestead and personal effects in and about the same for and during the term of her natural life, and charges maintenance of the homestead upon his estate; and, in addition thereto, gives her an anuity of $300 a month during life. He gives to his son, McDougal Avery, an annuity of $50 per month during life. He gives to each of his three daughters an annuity of $100 per month for the period of ten years next following his decease. The entire estate of the testator is to remain in the hands of 'his executor and be managed by it until the expiration of the period of ten years next following his death, and during that period of time the said annuities are to be paid by the executor out of the estate. The entire estate, excepting the homestead and personal effects in and about the same, is charged with the payment of the annuity to the widow ,during the ten-year period, and, subject thereto, the said'estate is also charged with the payment of the annuities to the three daughters. At the end of the ten-year period the executor is directed to purchase, out of the corpus of the estate, from an insurance company, an annuity which will produce the sum of $3,600 per annum for the benefit of and to be paid to the wife, in equal monthly installments, during the term of her natural life, and a life annuity of $600 per annum, for the benefit of and to be paid to the son, McDougal Avery, in equal monthly installments during his lifetime. These provisions for the benefit of the widow and the son are declared by the testator to be the entire benefits which they are to receive from his estate. At the end of the ten-year period the annuities provided for the daughters are to cease, and all the residue and
The homestead 'and personal effects in and about the same, are given 'absolutely to the three daughters, subject to the life estate therein of the widow.
We have already pointed out the character of the several estates created in the interested parties by the provisions of this will, and no further discussion of that branch of the case is needed at this time.
It will thus be seen that, after providing for his widow and son, the testator intended that his daughters should have his entire estate, provided they survived the distribution period, (which in the natural order of events is likely to occur, be
Counsel for the daughters' urge that in applying the docu trine of elimination and excision to this will we should declare invalid;, (T) The contingent estate given to each daughter as survivor of a possibly deceased daughter; (2) The contingent estate given to the issue of a possibly deceased daughter; and (3) The ten-year period fixed for distribution. In support of the first two propositions, in addition to what has already been said respecting the suspension of the power of alienation and absolute ownership’, counsel urge that these provisions in favor of issue and .surviving daughters create future contingent estates, created on a term of years, not vesting in interest during the continuance of not more than two lives in being at their creation. This position introduces no new difficulty into the case. Section 36 of the Real Property Law provides that “A contingent remainder shall not be created on a term of years, unless the nature of the contingency on which it is limited be such that the remainder must vest in interest, during the continuance of not more than two lives in being at the creation of such remainder, or on the termination thereof.”
In respect to the provisions of the will in favor of the issue-of a possibly deceased daughter, the contingency, dependent upon which the estate must vest in absolute interest in such-issue, as we have already seen, is the period of one life—the-life of the parent of such issue—and hence is not within the prohibitive force of this statute.
As respects the provisions of the will in favor of each daughter as survivor of a possibly deceased daughter, this statute is offended, as well as the statute against suspension of absolute ownership and power of alienation, but the remedy is alike in both cases and hence no new difficulty is created.
We now return to a consideration of the question asi to what provisions of the will should be eliminated. The contingent estates created on behalf of the issue of a possibly deceased daughter should not be eliminated, because they are valid limitations and the estates thereby created will vest in absolute interest within the period of one life in being at the time of the ■creation of the estates.
The elimination of the ten-year period would, in effect, eliminate the contingent estates created on behalf of issue and on behalf of surviving daughters, because, with the ten-year period eliminated, the absolute title to the estate and the immediate right to its possession would vest in the daughters at the time of the death of the testator. As already stated, we are of the opinion that the ten-year period of itself does not offend the statute, because of the vesting of the estate, the time of payment -and distribution alone being postponed.
H, however, it shall be found that this ten-year period is so dependent upon, connected and interwoven with the unlawful suspension in favor of surviving daughters under the eighth paragraph -of the will, as to be inseparable from it, or if the main testamentary scheme can be more fully protected by its elimination, we would then be called upon to- expunge it from the will. We do not think, however, that the circumstances require this to be done.
As already stated, the provisions of paragraph “ Eighth,” of the will, by creating future, contingent estates in the daughters, as survivors, introduce the difficulty in the case. It seems dear, however, that the provisions of this paragraph and the-ten-year period are not so dependent upon or connected with each other, as to require ’both to fail. On the contrary, I am clearly of the opinion that the objectionable features contained" in paragraph “ Eighth ” of the will, can be eliminated and expunged, leaving the provision® for the management of the estate, during the ten-year period, intact and lawful. To eliminate the entire “ Eighth ” paragraph would leave a complete- and lawful testamentary scheme throughout. Such an elimination would, however, defeat the intention of the testator, by
The elimination of these words, or rather this unlawful limitation, would permit the immediate vesting, in interest, of the share of any daughter dying within the ten-year period, without issue, in the survivors; and such vesting would avoid' the unlawful suspension of the power of alienation and absolute ownership; because such future, contingent estate would then be limited to take effect within the lives of two- persons in being-at -the creating of the estate. In other words, the future, contingent estate would then be limited to take effect upon the death of one person in- being, to wit, the daughter dying, in the-same manner as under -the “S'eventh ” paragraph of the will, bad- the daughter so dying left issue.
The elimination of this objectionable feature of the will would preserve the testamentary scheme of the testator to the fullest possible extent, and substantially intact. It would preserve -the lien charged upon the estate for the payment of the--annuities, a-nd it would preserve the future; contingent estates
I am clearly of the opinion that it is this void, ulterior limitation which should be eliminated from the will. The effect of this elimination is to render harmonious every provision of the will, and to carry into effect the apparent testamentary -purpose of the testator, in every essential particular. It harmonizes with the provision of the will which vests in the daughters the absolute title to the homestead and contents, subject to the life ■estate of the widow, and it also harmonizes with the provision ■of the will which vests, in interest, the absolute title in the issue of the deceased daughter (dying within the ten-year period), such daughter’s share of the estate; and it seems to me more than probable that it harmonizes with the precise intent of the testator in that respect. It seems more than likely to me that the words: “ at the time of distribution or payments,” as used by the testator in this connection, were intended to relate purely to the time of division, and not as creating a condiditional limitation respecting the persons who were to take; but that by the careless construction of the sentence and use of these words they give rise to the contention of a different meaning. The conclusions reached, I believe to be fully justified by the principle involved in the decision in the cases, Henderson v. Henderson, 113 N. Y. 1, under a will containing a •similar provision; Kalish v. Kalish, 166 id. 377, and the cases •cited, and Smith v. Chesebrough, 17 6 id. 317.
Counsel for the daughters have urged that we are not justified, under the doctrine of elimination, in expunging a portion of a sentence. "What the doctrine does justify is the elimination and expunging of void provisions, and it matters not whether those provisions involve a whole paragraph, a whole
It follows, of course, from the conclusions reached that there can be no. distribution of the residuary estate among the daughters at this time. The only remaining question, to be considered is the disposition to be made of the accumulated surplus income and earnings of the estate, in excess of the .amount required to meet the annuities provided for by the will. The net earnings of the estate exceed the amount required to meet such annuities by several thousand dollars in each year. These earnings and accumulations arise from personal property.
The will contains no direction as to the. disposition of such accumulated surplus. If it should be held that the surplus earnings are to be accumulated under any implied direction, 'contained in the will, it would 'be to tire effect that they should be held until the expiration of the ten-year period, and then be distributed as part of the corpus of the estate. Clearly such an implied direction would be void under section 4 of the Personal Property Law. For all purposes of this case we may treat such accumulations as arising by reason of the fact that no valid directions are contained in the instrument for their disposition.
Such being the case, the accumulated surplus earning in this case belong to the three daughters, in equal shares, as- the persons presumptively entitled to the next eventual estate both under the statute, section 53 of the Real Property Law, and by the decisions of our courts. Matter of Crossman, 113 N. Y. 503; United States Trust Co. v. Soher, 178 id. 442; Cochrane v. Schell, 140 id. 316; Schermerhorn v. Cotting, 131 id. 48.
The decree to be entered in this proceeding will be in accordanc herewith.
Decreed accordingly.