193 A.D. 292 | N.Y. App. Div. | 1920
The decree under review laid stress on the provision that each $10,000 legacy in trust is to be a “ vested interest in each of them on their respectively attaining the age of twenty-one years or marrying which shall first happen nevertheless to be held by the said company [no punctuation here] Upon the trusts hereinafter declared concerning the same.” A vested legacy is " a legacy given in such terms that there is a fixed, indefeasible right to its payment.” (Standard Diet.)
In Matter of Payne (25 Beav. 556) the testator made a provision for his daughter’s children, making the time of vesting differ according to sex. To the daughters, it was prescribed as the age of twenty-one, or day of marriage—• when the share or parts of shares “ shall become a vested and transferable interest in each of the children of my said daughter.”
In Edmondston’s Estate (L. R. 5 Eq. Cas. 389), Page Wood, V. C. (afterwards Lord Hatherley), remarked that the word “ vested ” is to be interpreted as meaning “ ‘ Lee from all contingency.’ But the word at the sa,me time is a flexible word. It has been construed to mean indefeasibly vested, as contrasted with being vested subject to some defeasance of interest.” (P. 396.)
Hence this expression “ vested ” is here important only in the possibilities of a daughter dying, or being married, before she becomes twenty-one. The testator merely made a declaration that the interests of the daughters before the age of twenty-one, or prior to their several marriages, should not vest or be transferable. . When they attain majority or many, the trusts vest in interest but not in possession.
In my view, this will intended the following:
(a) To put a $10,000 legacy in trust for each daughter for her lifetime. After the “ vesting ” she was to be consulted when investments should be changed.
(b) On either’s death, that it should go to the children of such deceased daughter, by exercise of her power of appointment, until such children become twenty-one, or marry.
(c) If either daughter die with no issue, then such share augments the share of surviving sister.
(d) In default of appointment the fund is in trust “ for all the children of my same daughter who being sons attain the age of twenty-one years or being daughters attain that age or marry in equal shares.”
(e) If both die without leaving issue, the whole forms part of the residuary estate.
This attempt to extend a trust beyond two lives, being thus in contravention of the Statute against Perpetuities, should not be sustained. (See Pers. Prop. Law, § 11.) How- . ever, the illegal part can be separated from the remainder
It, therefore, follows that the trust should be sustained for the lives of the daughters, including their disposition of their shares by means of the power of appointment so that in that regard the decree of the Surrogate’s Court should be modified.
The decree should be sustained in its disallowance of the claim of the appellant Schwartz.
As thus modified, the decree is affirmed, with the costs of this appeal of the trustee and of the children payable out of the estate.
Rich, Blackmar and Kelly, JJ., concur; Jay cox, J., dissents except as to the disallowance of the claim of Anna Schwartz, as to which he concurs.
Decree of the Surrogate’s Court of Richmond county modified on reargument in accordance with opinion, and as modified affirmed, with costs payable out of the estate.