7 N.Y.3d 546 | NY | 1852
The respondent seeks to recover in this action an undivided sixth part of certain real estate situated in the city of New York, of which her father, Joseph Jennings, died seized in May 1850. The appellant sets up a title under the will of Joseph Jennings who resided at the time of his death in New Jersey. A demurrer to the answer, puts in question the validity of the will, so far as respects the title of the property in New York. This question must be decided by the laws of this state (2Kent's Com. 429, note (a); Story's Conflict of Laws, 539).
The part of the will on which this question depends, is in the following words: "I give and bequeath unto my daughters Elizabeth Linard and Ann Jennings, my children by a former wife, to each one dollar (only). I will that all the income of my estates, real and personal, be applied, after the payment of my just debts, to the maintenance and clothing of my said wife, and the maintenance, clothing and education of my children by her now born, or such as may be born in due time after my decease. *548 And the surplus of such income to be laid up by her for these my children by her, on interest invested in the purchase of United States stocks, in her name as trustee to these my children.
"And as soon as the eldest surviving child by my present wife becomes of the age of twenty-one years, the whole of the property to be fairly appraised and valued, and his or her equal share of the property apportioned, and if required paid to him or her. And in like manner the same course to be pursued in respect to the rest of my surviving children by her," c.
The will further provided that after the last of these children by his present wife should arrive at twenty-one years of age, his said wife should take possession of the property in Swedes-borough, New Jersey, for her own use during her life, or widowhood, and after her decease, or her interest should cease, this property was to become the joint property of the surviving children.
The scheme of the will is therefore this; that the income of the testator's estates, real and personal, after the payment of his just debts, should be applied to the clothing and maintenance of his wife, and the clothing, maintenance and education of his children by her, and the surplus was to be invested by the wife as trustee for the children. The property was all to be kept together, undivided, until the eldest surviving child, by his present wife, should become twenty-one years old, and then to be appraised, and his or her equal share apportioned, and paid if required.
Now the objection to this scheme is, that by the will the absolute power of alienation is suspended for a longer period than two lives in being, and therefore the will contravenes the fifteenth section of the article of the revised statutes entitled, "Of the creation and division of estates" (1 R.S. 723, § 15), and is therefore void. This very question was decided in Hawley v. James (16 Wend. 61). It was held by Judge Bronson in that case, and his ruling has been followed by the courts since, that "the power of alienation can not be suspended for a longer period than during the continuance of two lives in being at the *549 creation of the estate; and every limitation by which the power of alienation may be suspended for a longer period is void in its creation. The lives must be designated, either by naming the persons in particular or by limiting the estate on the two first lives that shall fall in a class of several individuals." By this rule it will be seen that the power of alienation was suspended in the case at bar, or, which is the same thing, might be suspended during three lives. Suppose the three eldest of the four children living at the testator's death should die and the remaining child should, after their death, arrive at the age of twenty-one years, it is clear that by the terms of the will the estate must be kept together and the power of alienation must be suspended during three lives. The same doctrine has been decided in Kane v. Gott (7 Paige, 521), and the same case in the court of errors (24 Wend. 564), and in Boynton v. Hoyt (1Denio, 53), and in several cases arising in the Superior court of the city of New York. This view of the case is conclusive against the appellant. But the estate is not to be divided at the majority of the eldest child. The residue is still to be kept together and undivided for the maintenance and education of the rest, until the last of the children shall arrive at the age of twenty-one years; so that the power of alienation is suspended as to all but the portion of each successive child who arrives at twenty-one years of age, until the last shall reach that age. The consequence is, that the judgment must be affirmed.
Judgment affirmed. *550
