57 N.Y.S. 916 | N.Y. App. Div. | 1899
This action was brought for the construction of the will and 1st codicil thereto of Felix Stoiber, who died in the city of New York ■on November 12, 1889, leaving him surviving his widow and five
If it were not for the discretionary power granted to the trustees to dispose at any time of the trust property and terminate the trust,. • it would be unquestionable that the. trust created by the codicil suspends the power of alienation for three lives. The Ith clause of the will suspends the whole residuary estate for two lives, that of the widow and that of the daughter Clara; for in ease the widow should die before Clara reached the age of twenty-one, then the estate was to be held in trust for the further time until Clara should arrive at that age; while in case Clara should die before the age of twenty-one, the trust would continue during the lifetime of the widow. The codicil continues the share of Edward, already held in trust for two lives under the will, in another trust during a third life, that of Edward himself. "We do not understand that the appellant controverts this proposition. The contention of his learned counsel is that the clause in the will does not suspend the power of alienation for any period whatever, because it is within the power of the' trustees, with the consent of the adult children of the testator, to convey the trust property and terminate the trust at any time. In support of his contention the counsel relies upon the cases of Robert v. Corning (89 N. Y. 225) and Henderson v. Henderson (113 id. 1). In these cases it was held thi%under the statute a power of alienation is suspended onlyíwlaere there are no persons in being by whom an absolute fee in possession can be conveyed, and that “ where the^frustee is empowered to sell the land, without • restriction as to tiiye, ^ the power of alienation is not suspended, although the alienation in fact may be postponed, by the non-action of the trustee, or, in consequence of a discretion reposed in him, by the creator of the trust.” We do not see that the present case can be logically taken out of the rule quoted by the fact that the trustees require the consent • of the adult children of the testator to
The provision that the absolute power of alienation cannot be suspended by any limitation or condition whatever .for a longer period than two lives in being at the creation of the estate is by no means the only limitation placed by statute on the power of testators or donors to fetter or tie up estates. The statute prescribes (1 R. S. 773, § 1) that the absolute ownership of personal property shall not be suspended by any limitation or condition whatever for more than two lives in being at the date of the instrument or death of the testator; and as to real property (Id. 724, § 20), that “ a contingent remainder shall not be created on a term of years, unless the nature of the contingency on which it is limited be such that the remainder must vest in interest during the continuance of not more than two lives in being at the creation of such remainder, or upon the termination thereof.” Therefore, while a trust, determinable at anytime in the discretion of the trustee,-may not offend against the statute prohibiting restraints on alienation, the disposition of the trust fund or property at the termination of the trust, must, to be lawful, conform to the other statutory requirements which we have quoted. In other words, the validity (of these testa
In our view the will effects an equitable conversion of the property at the termination of the trust period (Morse v. Morse, 85 N. Y. 53; Delafield v. Barlow, 107 id. 535), and we have, therefore, discussed the question of the validity of the codicil with reference to the statutes concerning the tenure of personal property. But in in our judgment the result would be the same as to the realty, even if treated as such. The interest of any beneficiary in real estate set apart to him at the termination of the trust would be a contingent remainder, contingent upon his surviving that time. By. the provisions of law cited that remainder must vest in interest at the expiration of two lives in being, and, as already said, the 7th clause of the will exhausted all the latitude given to a testator by law in that -direction.
The judgment appealed from should be affirmed, with costs to all! parties, payable out of the estate.
All concurred.
Judgment affirmed, with costs to all parties, to be paid out of the estate.