Post v. Bruere

111 N.Y.S. 51 | N.Y. App. Div. | 1908

Gaynor, J.:

The third clause of the will leaves $10,000 in trust to the- executors to pay the interest thereon (1) to the widow for life, (2) upon her death to the two sons “share and share alike”, and (3) upon the death of each son to divide one half of the principal sum among his children. Nothing different to this can be spelled out of it unless the words, “ or on the death of either of said sons then the one-half of the said ten thousand dollars ”, be ignored and given no effect in the interpretation, and that cannot be permitted. The meaning is that the income is to be paid to the two son's during their natural lives, “ respectively ”, and upon the death of each one half of the principal to be divided. The language of the clause is not exact nor grammatical, but the meaning is unmistakable. The plural “their” is used,only to be followed by the singular “life”; which, coupled with the words which follow, “ or on the death of either ”, etc., shows that their respective lives were meant, and that there was to be a distribution of one half the principal on the death of each; and the same distinction and severance being kept up te the end (for the same idea runs through it all) each distribution is to be among the children of the son whose death caused such distribution. Thus interpreted, the absolute ownership is not suspended for the continuance of more than two lives in being at the testator’s death, i. e., that of the widow and a son, in respect of any part of the trust fund. It is not necessary that a testator actually sever the trust fund in the case of several trusts carved out of such fund. It suffices that each trust be made distinct, and each will be considered ' alone on the question of illegal suspension (Savage v. Burnham, 17 N. Y. 561; Monarque v. Monarque, 80 id. 320; Wells v. Wells, 88 id. 323; Vanderpoel v. Loew, 112 id. 167). Words in the opinion in Savage v. Burnham (p. 571) are exactly applicable here, viz.:

“ There is indeed but one fund, which is embraced in a single trust, but the interests carved out of it are entirely distinct. The trust itself is necessarily divisible as often as the beneficial dispositions of the will call for a division ”, etc. And on this ground the trust was upheld as not involving an illegal suspension of ownership, or of the power of alienation.

The judgment should be reversed.

Jenks, Hooker, Rich and Miller, JJ., concurred.

Judgment reversed on the law and the facts, and new trial granted, costs to abide the’final award of costs.