137 N.Y.S. 162 | N.Y. Sur. Ct. | 1912
It is a great satisfaction to me that this cause is brought on for rehearing, or rather hearing, for there has been no prior hearing or argument. I myself had suggested such “ re-hearing,” before formal application for it was made. I should have greatly regretted to have had any decree entered in this matter without a hearing, as when it came before me for the first time by submission I labored under a misapprehension as to the facts. The only brief then submitted to me was one for the special guardian, a gentleman of my own designation, in whose experience and learning I have confidence. From the fact that no other brief was submitted to me by any one concerned, I inferred that the real question of law was agreed on and foreclosed, and that all the parties, including the very experienced counsel for the trust company, acquiesced in the position taken by the special guardian, and that the limitation was affected by the vice of a perpetuity. My prior conclusion was predicated wholly on that circumstance. But it was not so. But I will not excuse myself by the plea of a wrong assumption, as I gave the case inadequate attention when first before me. I hope that I have no pride of opinion, and I have since re-examined my former conclusion with scrupulous care, and I am not satisfied with it. All I can say in extenuation of my former conclusion is: Erravi “ mea culpa.”
Let me remark, however, at this point, that as the tendency is to resort to this court more and more, for purposes of judicial interpretation of wills, appointments of trustees and other matters not formerly within the cognizance of courts of probate, I shall for my own protection, as our regular contentious business is very great, feel at liberty hereafter, in all such matters of construction and interpretation, to pursue
The only questions submitted to me in this proceeding concerns the validity of the sixth paragraph of the will of Philip Kraker, as follows:
“ Sixth. I give, devise and bequeath unto my executors, the sum of two thousand dollars, in trust nevertheless for the following purposes: To pay the entire income thereof, annually, to my son, Solomon P. Kraker, until two years shall have elapsed from the date of my decease, when one-half of the trust fund shall be paid over-to him; the trust of the remaining one thousand dollars ($1000) shall then continue as before; until five years shah have elapsed from the date of my decease, when said remaining one thousand dollars ($1000.00) shall be paid over to my son, Solomon P. Kraker, whereupon the trust herein created shall cease and come to an end.”
The will contains the following general and unrestricted residuary clause:
“ Seventh.. All the rest, residue and remainder of my estate, I give, devise and bequeath unto my two daughters,
The special guardian objects that the sixth bequest is void because the limitation of the trusts contained in the- sixth clause of the will is invalid, and he insists that the $8,000 thereby attempted to be disposed of consequently falls into the residuary, and that the decree herein should so provide. As trusts of personalty in this state are now adjudged^ to suspend the power of alienation, modo et forma, as trusts of real property, and for the same reason (Tilman v. Reddington, 84 N. Y. at page 12; Genet v. Hunt, 113 id. at page 168; Lent v. Howard, 89 id. at page 379) they must be limited on lives in being and must terminate within, or at the expiration of, the life of the longest liver of two cestui que vie, or the trust is void in the creation. Pers. Prop. Law, § 11; Emmons v. Cairns, 2 Sandf. Ch. 369, 377; Manice v. Manice, 43 N. Y. 303, 388; Wells v. Wells, 88 id. 323, 331, 332; Beardsley v. Hotchkiss, 96 id. 201, 216; Matter of O’Hara, 95 id. 417; Underwood v. Curtis, 127 id. 523.
At common law, where an executory trust now arises" on a too remote event, the invalidity of the trusts will not destroy the rights of the persons intended to take the proceeds, if they are ascertained. Matter of Daveron, Bowen v. Churchill, (1893) 3 Ch. Div. 421; Tullet v. Corville, (1894) 2 id. 310; 3 id. 381. In this jurisdiction if the trust is void as a perpetuity, the fund sometimes falls into the residuary. Leggett v. Stevens, 185 N. Y. 70; Almstaedt v. Bendick, 47 App. Div. 265, 267; Matter of Miner, 146 N. Y. 121; Riker v. Cornwell, 113 id. 115, 125; Gallavan v. Gallavan, 57 App.
I was under the impression, when I handed down my former direction for decree in this matter, that the counsel for all the parties had agreed that the bequest for the benefit of Solomon P. Kraker was void as a perpetuity, and that the trust fund therefore went into the residuary. But I was mistaken on this point, as I stated above. Upon further examination it is apparent to me that the decision on this bequest to Solomon P. Kraker, even since the Revised Statutes altered the common law so materially, is entirely decisive against the special guardian’s contention, and that this particular bequest for the benefit of Solomon P. Kraker is as valid as it would be at common law. In the case of Warner v. Durant, 76 N. Y. 133, the same contention, now put forth by the guardian herein, was considered under an almost identical state of facts, and without dissent that eminent court affirmed the validity of a very similar bequest. There, as here, was a bequest to executors in trust to hold a specific sum for five years and at the expiration of five years to pay the same to the legatee entitled meanwhile to the interest. The Court of Appeals went directly to the heart of the matter and ignoring forms held that it was obvious that the testator intended that the gift was to be severed instcmter from the general estate for the benefit of the legatee, and in the meantime that the interest thereof was to be paid to such legatee. That such direction was indicative of the intent of the testator that the legatee should at all events have the principal and was to wait for the same only until the day fixed. The Court of Appeals held that the gift vested at once, and they cite Matter of Hart’s Trusts, 3 De G. & J. 195, although their citation is to a wrong volume of the reports of De Gex & Jones.
That the point of perpetuity was not discussed in Warner
But there are other adjudications of this state which I have found for myself upon my re-examination of this case and which do speak in terms of the existing law of uses, trusts, remainders and future interests in personalty. These decisions seems to me also applicable to this will now before me. In Keenan v. Keenan, 122 App. Div. 435, there was a devise to trustees, income to a son “ for a term of five years,” and if at the end of five years it shall be found that the son has abstained from intoxicating liquors the executors may turn over the property to him with the surplus or continue to hold the same in their discretion, and in case the son died without issue, remainder over, etc. The court held that, as the trust must end at the death of the beneficiary in any event, it did not suspend the power of alienation beyond a
Having now reconsidered the matter and heard parties not heard before, I feel that I must adjudge the sixth clause of the will of Philip Kraker valid and sufficient to carry the legacy or corpus of $2,000 to Solomon P. Kraker as the testator intended.
Decreed accordingly.