40 Barb. 144 | N.Y. Sup. Ct. | 1862
In respect to the personal estate of the testator, the obvious intention to be gathered
This brings this disposition of the personal property directly within the prohibition of the statute, in regard to the suspension of the absolute ownership of personal property for the."period of more than two lives in being at the death of a testator. (1 R. S. 773, § 1.)
It is claimed on the part of the plaintiffs that the grandchildren living at the death of the testator took a vested interest in the share of their parents, subject to open and let in after-born children. But this clearly is not so. Their interests were not vested, but contingent, and depended entirely upon the event of their surviving their parents. If they did not, the use of the share and the trust continued to other beneficiaries, and the absolute ownership would necessarily go to others. Whether it would ever vest in the grandchildren could not be determined until the death of their parents. The rule is, that if, according to the provisions of the will, such a suspension of absolute ownership may possibly happen, it renders the bequest void, the same as though the happening of such event were inevitable.
That such may be the result in regard to either or all of these shares is quite obvious. In case of the death of either one of the children of the testator without heirs, the absolute
In respect to the real estate, the executor, as trustee, took, under the will, no title to any portion of it. It is not given to him in terms; nor is he to have any thing to do with the rents and profits. Every thing which he is required by the will to do with the real estate, as such, may be done under a simple power without the vesting of any title in the trustee. It is therefore a mere power in trust, and the lands not absolutely disposed of by the will descended to the heirs of the testator subject to the execution of the trust as a power, if valid. (1 R. S.129, §§ 58, 59.. De Peyster v. Clendining, 8 Paige, 304, 5.)
The executor, as trustee, never takes a fee by implication, unless the fee in him is necessary to the complete execution of the trust. (Tucker v. Tucker, 1 Selden, 408.) The heirs at law of the testator, therefore, took all the real estate not devised absolutely by the will, subject to the execution of the trust as a power, if valid, and subject also to the estate for years therein given to Mrs. Mosher. The absolute power of alienation of the title was not suspended at all, by the will, and no question under the statute arises in the case. The power of the executor to convey was suspended for the term of three years, but in the mean time the remainder, subject to the execution of the power, remained perfectly vested in the heirs at law.
The devises and bequest to Mrs. Mosher, being absolute and unconditional, and in nowise connected with the trusts created by the will, are not affected by its void provisions. She must therefore be held to take as by a valid devise, all
But inasmuch as it is apparent that the testator intended to make a complete and perfect disposition of his entire estate, real and personal, and this intention is to be defeated by reason of his ignorance of the law, Mrs. Mosher ought not to be permitted to retain what she gets by the will and then share equally with the other children in the residue of the estate as heir at law. If she were to be allowed to take under the will and in hostility to it also, the intention of the testator not only as to the other children, but as to herself, would be entirely frustrated and-disappointed. She should therefore be put to her election whether she will take under the will, or as one of the heirs at law merely, according to the rules laid down by Nelson, chief justice, in Hawley v. James, (16 Wend. 142, 143.)
The two shares, from the proceeds of the personal estate, which were to be paid to the heirs of Rebecca Daniels, and Maria Nickerson, are valid bequests, if such heirs were living at the death of the testator; as in that event the shares were to be paid to them directly, and not to be held in trust. Otherwise, if no such heirs were then living and those shares went into the trust fund, they would follow the other five shares.
The other two shares, however, given to them, from the proceeds of the sale of the real estate, must necessarily fail with the failure of the power of sale, and these grandchildren" must take, if at all, as heirs at law of the testator.
There must therefore be a decree declaring all the, provisions of the will void except the devises and bequest to Rhua
Johnson, Welles and Campbell, Justices.]