68 N.Y.S. 674 | N.Y. App. Div. | 1901
Lead Opinion
This action was brought to construe the will of Jacob New, •deceased. The will was executed on the 10th of June, 1896, and the testator died on the 3d of January, 1898, leaving considerable real estate, all situated in the city and county of New York. The testator left him surviving a widow and several children, two of whom were infants. The question presented in this case is as to the A'-alidity of the devise of the testator’s real estate contained in the 9th clause of the will. The testator therein devised all of his real estate to his executors upon trust. First. “ To hold one equal •one-third part thereof during the life of my said wife Esther New, ■and to pay to her during her life the net income of said one-third part; ” second, “ After the death of my said wife to hold the said one-third part for the benefit of my children until my daughter Mabel New shall arrive at the age of twenty-one years, or until the •coming of age of my next older surviving child, should my daughter Mabel not live to that age, and to pay the net annual income thereof to my children in equal shares ; ” third, “ to hold the remaining equal two-thirds part thereof until my daughter Mabel New ¡shall arrive at the age of twenty-one years, or until the coming of age of my next older surviving child, if iny daughter Mabel should not live to that age, for the benefit of all my children ” (naming them), and to pay to each of them an equal one-fifth part of the annual net income thereof ; ” by the 4th subdivision the testator directed that “ upon the coining of age of my said daughter Mabel or of my
The learned judge before whom this case was tried seems to have considered that because by the 6th subdivision of this .clause of the will a new trust in one-third of the proceeds realized from the sale of the real estate was created which would, taken in connection with the trust created by the 1st and 2d subdivisions, continue for a period beyond two lives in being at the death of the testator, that the whole of the trust created for the benefit of the widow by the 1st and 2d subdivisions of this 9th clause of the will was void ; but it seems to me that the trust created by the 1st and 2d subdivisions and that created by the 6th subdivision were entirely distinct and separate trusts, not embracing the same subject-matter and not necessarily dependent one upon the other. By the 1st and 2d subdivisions of this clause of the will one-third of the testator’s real property was to be held in trust for the purposes therein mentioned. By these provisions the trustees were required to set apart one-third of the real estate, and hold such one-third for the purpose specified; but when that trust ended by a sale of. all the property held in trust by the trustees and the conversion of the whole of the testator’s real estate into money, it was not the proceeds of this one-third of the real estate which had been held for the benefit of the widow that was to be continued to be held in trust- for her benefit. The new trust, which was then to be created, was to be composed of one-third of the proceeds realized from all of the testator’s real estate. It is evident that this sum of money, that was to constitute the new trust created by the 6th subdivision of the 9th clause of the will, might be a different amount from that realized by a sale of the one-third of the estate which had been set apart for the benefit of the widow under the 1st and 2d subdivisions of the clause of the will in question. It might be that the one-third of the real estate held
Upon the arrival of age, therefore, of the surviving infant daughter of the testator, the property became by operation of law, under the doctrine of equitable conversion, personalty in the hands of the trustees to be distributed as directed by the testator.
As to two-thirds of the proceeds realized from the sale of this property, the trustees were required to distribute it immediately among the surviving children of the testator, the issue of any one dying to take the share of the parentbut, as to one-third of the proceeds of such estate, a new trust was created by the 6th subdivision of this clause of the will, by which the trustees were directed to invest such one-third of the net proceeds and to pay the net income to the testator’s wife until her death, and then to divide the same among the testator’s children. It seems to me that this new trust thus attempted to be created was void, as it postponed the ultimate vesting of the proceeds of this real estate for a period longer than two lives in being at the death of the testator. Whether we treat this as real estate or personal property, any provision whereby the absolute ownership was suspended for a longer period than during the continuance and until the termination of two lives in being at the death of the testator was void. (R. S. pt. 2, chap. 1, tit. 2, art. 1 [1 R. S. 723], § 15 ; Id. chap. 4, tit. 4 [1 R. S. 773], § 1 ; Real Prop. Law [Laws of 1896, chap. 547], § 32; Pers. Prop. Law [Laws of 1897, chap. 417], § 2.) It seems to me, however, that the validity of the trust established by the 1st, 2d and 3d subdivisions of the 9th clause of the will is not affected by the invalidity of the subsequent provision creating a new trust for the benefit of the wife by subdivision 6. It is true that the testator intended to make provision for his wife after the termination of the trust by the crea-t tion of this new trust of one-third of the proceeds of his real estate ; but as that provision is void as postponing the absolute ownership of this property for a longer period than that allowed by law, to that intention no effect can be given. That full effect cannot be fully given to the intention of tiie testator to provide for his widow,
It follows that the judgment appealed from must be modified by declaring valid the trusts created by the 1st, 2d and 3d subdivisions of the clause of the will in question, and as void the trust created by
McLaughlin and Hatch, J"J., concurred; Van Brunt, P, J.,, and Bumsey,. J., dissented.
Dissenting Opinion
For the reasons stated in the opinion of Mr. Justice Freedman in the court below I think the judgment should be affirmed.
Bumsey, J., concurred.
The following is the opinion of the court below:
This is an action brought by the plaintiffs, as executors, and by two of the plaintiffs, in their individual capacity, for the cofistruction'of the last will and testament of Jacob New, deceased. After providing for the payment of certain legacies and the disposition of certain .personal property in no way in contravention of law, the testator then devises his real property in a manner which one of the defendants claims renders the entire will invalid and void so far as it relates to the disposal of such real estate. By the provisions of the will the testator has created two separate and independent trusts. The 1st and 2d subdivisions of paragraph 9 of the will must be read in connection with each other, and by those subdivisions he provides that one-third of his real estate shall be held in trust, the net. income thereof paid to his wife during her lifetime, and that, after her death, the said one-third shall be held for. the benefit of all his children until his daughter, Mabel New, shall arrive at the age of twenty-one years, or in case of her death prior to arriving at that age, then to be held in trust until the next older surviving child shall become of age. By paragraph 13.of said will it is further provided that “ the provisions made in this will for the benefit of my wife, Esther New, are to be accepted by her in lieu and bar of all dower or thirds in my estate.”. At the time of the death of the testator he left him surviving his widow, Esther New, and five children,
Judgment modified as directed in opinion, with costs to the plaintiffs and the guardian ad litem to be paid out of the estate.