In re the Judicial Settlement of the Account of Proceedings of Abbey

18 Mills Surr. 289 | N.Y. Sur. Ct. | 1917

Ketcham, S.

The will under which this accounting is made contains a devise of the testator’s estate to trustees, among other things, for the following purposes:

“ To pay the income received therefrom to my wife, Ella Louise White, for and during her natural life. In the event of the death of my said wife before my daughter, Frances Louise Abbey, then, to pay all the income received from said estate to my said daughter Frances Louise Abbey, for and during her natural life. In the event of the death of my said wife, and of my said daughter without issue, then I direct that my said estate be paid to my legal represéntatives then living.”

This was modified by the codicil, Avhich reads as follows: “ I hereby revoke that portion of the above will giving my estate to my legal representatives, and do hereby will that in case my son-in-law Frank R. Abbey survive his Avife (Frances Louise Abbey), my daughter, that in that event the entire in- ' come of my estate be paid to the said Frank R. Abbey, and at his death my estate be paid to my legal representatives then living.”

The construction of the Avill and codicil is not controlled by section 43 of the Real Property Law, which provides: “ * * * 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.”

This section is made applicable to limitations of future or contingent interests in personal property (Pers. Prop. Law, § 11), but it relates only to legal estates, and is not available for the interpretation of a trust. (La Farge v. Brow

But the instruments under examination present a typical case for the application of the rule: “ When the several parts of a Avill 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 Avill be adopted as Avill prevent intestacy, either partial or total, as the case may be.” (Kalish v. Kalish, 166 M. Y. 368, 315, containing a general collection of authorities on the subject. See, also, treatment of the Kalish case in 15 M. Y. Ann. Dig. 1218.)

There remain serious question as to the ultimate destination of the remainder in this trust, but these cannot be now considered. It is enough if the decree shall proceed upon a finding that the provisions of the codicil, so far as they seek to extend the trust for a third life, are void; that the provisions of the will by which the trust estate is suspended for two lives are valid, and that the fund must. remain in the hands of the trustee during the life of the beneficiary, Frances Louise Abbey. Upon the death of the last-named beneficiary any party may apply for further direction with respect to the. fund. ,U

Decreed accordingly.