| N.Y. App. Div. | Jun 7, 1907
I think 'that the main, intent of the testator was to divide his estate equally among his children and the issue of any predeceased child per stirpes. The trusts' provided for during the minority of his child Sydney were plainly created because'of his minority and . were but incidental ■ to the division, which was only. postponed because the second trust required it. As Sydney attained’ his majority during the life of the testator the provisions for the trusts became inoperative and the main disposition by the - residuary clause became at once operative. For that disposition could not fail unless it was só related to the trust that the failure of the latter necessarily involved its failure as well. (McLean v. Freeman, 70 N.Y. 81" court="NY" date_filed="1877-06-05" href="https://app.midpage.ai/document/mclean-v--freeman-3633148?utm_source=webapp" opinion_id="3633148">70 N. Y. 81; Wager v. Wager, 96 id. 164, 171; Hughes v. Mackin, 16 A.D. 291" court="N.Y. App. Div." date_filed="1897-07-01" href="https://app.midpage.ai/document/hughes-v-mackin-5182216?utm_source=webapp" opinion_id="5182216">16 App. Div. 291.) I think that it is clear that the estate necessary to the existence of the trust must be. regarded as but a preceding limitation and not as a preceding condition. (Williams v. Jones, 166 N.Y. 522" court="NY" date_filed="1901-04-16" href="https://app.midpage.ai/document/williams-v--jones-3596308?utm_source=webapp" opinion_id="3596308">166 N. Y. 522, and authorities cited.) The expression of the residuary clause is sufficient to convey the estate. (Roosa v. Harrington, 171 N.Y. 341" court="NY" date_filed="1902-05-29" href="https://app.midpage.ai/document/roosa-v--harrington-3598299?utm_source=webapp" opinion_id="3598299">171 N. Y. 341, 350; Matter of Brown, 154 id. 313.) . The words “ uppn the termination of the trust ” can'have no meaning or effect attributed to them, as the trust had no existence. (Weeks v. Cornwell, 104 N.Y. 325" court="NY" date_filed="1887-02-01" href="https://app.midpage.ai/document/weeks-v--cornwell-3587951?utm_source=webapp" opinion_id="3587951">104 N. Y. 325, 340.) The discretionary power of sale in the executors did-, not'vest them with the’legal title, and it is not inconsistent with the passing of the estate under the residuary clause. (Rea] Prop. Law [Laws of 1896, chap. 547], § 77; Fowler Real Prop. Law [2d ed.], 389, and cases cited; Hughes v. Mackin, supra.)
So far as the disinheritance of the contestant is concerned, provided that act was plainly accomplished by a valid will, we cannot interfere with it. (Matter of Mondorf, 110 N.Y. 450" court="NY" date_filed="1888-10-02" href="https://app.midpage.ai/document/in-re-the-probate-of-the-last-will-of-mondorf-3629473?utm_source=webapp" opinion_id="3629473">110 N. Y. 450.) The testator in his codicil excluded one child by name upon the express ground that- he had been undutiful. That exclusion, even if unaccounted-for, .would present no ground for a contest unless marked
The decree is affirmed, with costs.
Woodward, Hooker, Gaynor and Eich, JJ., concurred.
Decree of the Surrogate’s Court of Kings "county affirmed, with costs.