178 N.Y. 442 | NY | 1904
The question brought up for review involves the construction of the will of Andrew Soher, who died on the 9th day of February, 1901, in the city of New York, leaving the will in question, which has been duly admitted to probate by the surrogate of that county. He left him surviving as his only next of kin and heirs at law two sons, Le Roy, born in January, 1882, and Rodney, born in November, 1893. The testator, by his will, after making certain specific bequests, among which was one to Rodney of $15,000 upon his becoming twenty-one years of age, devised and bequeathed all the residue and remainder of his estate, real and personal, to his executors in trust, giving them a power of sale as to his real and personal property, and directing them to invest the proceeds and to apply the income by paying an annuity to each *446 of his sons, varying in amount but specifically fixed for each year until the amount reached $6,000 per year for Le Roy and $9,000 per year for Rodney, and thereafter such sums were payable yearly during the life of each. Upon the death of either of the sons one-half of the trust estate, including the accumulations of income, if any, was directed to be distributed among the children of such deceased son or the issue of any such deceased child that should then survive; or, in case such deceased son should die without leaving any lawful child or the issue of any deceased child him surviving, then, in that event the trustees were directed to deliver the same over to his brother in case he should then survive, or in case of his death to his lawful children or their issue in case of their decease. The testator left a large estate, consisting of real and personal property which produced an annual income of upwards of $50,000, which, after paying the annuities directed to be paid to the sons, has thus far left a surplus exceeding $40,000 per year.
We fully concur with the learned Appellate Division in the conclusions which it has reached to the effect that the trust created by the will is valid; that but one trust was created and that the implied or contemplated accumulation of the surplus income for the benefit of the grandchildren is in violation of the statute. As to the legacy payable to Rodney upon his becoming of age we have had some doubt as to whether it was payable out of the principal or income, but under the view which we take of the will it makes but little difference to the parties, and we have finally concluded to approve of the conclusions reached by the Appellate Division that it should be paid out of the income, if sufficient. There is but one question in the case which we propose to discuss and that arises out of the disposition that should be made of the surplus income.
Sections 51 and 53 of the Real Property Law (Chap. 547 of the Laws of 1896) provides as follows:
"All directions for the accumulation of the rents and profits of real property, except such as are allowed by statute, shall *447 be void. An accumulation of rents and profits of real property, for the benefit of one or more persons, may be directed by any will or deed sufficient to pass real property as follows:
"1. If such accumulation be directed to commence on the creation of the estate out of which the rents and profits are to arise, it must be made for the benefit of one or more minors then in being, and terminate at or before the expiration of their minority.
"2. If such accumulation be directed to commence at any time subsequent to the creation of the estate out of which the rents and profits are to arise, it must commence within the time permitted, by the provisions of this article, for the vesting of future estates, and during the minority of the beneficiaries, and shall terminate at or before the expiration of such minority.
"3. If in either case such direction be for a longer term than during the minority of the beneficiaries it shall be void only as to the time beyond such minority." (§ 51.)
"When, in consequence of a valid limitation of an expectant estate, there is a suspension of the power of alienation, or of the ownership, during the continuance of which the rents and profits are undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the persons presumptively entitled to the next eventual estate." (§ 53.)
Section 4 of the Personal Property Law (Chap. 417 of the Laws of 1897) contains substantially the same provisions as that incorporated in section 51 of the Real Property Law. It will be observed that under the statute, whether it be real property or personal property, the accumulation of income or profits in order to be valid must be for the benefit of one or more minors thenin being. Under the will, as we have seen, there has been no disposition of the surplus profits except in the clauses in which provision is made that upon the death of one of the sons the one-half of the trust estate consisting of the residue and remainder, including one-half of all the profits and accumulations, shall be paid over and distributed *448
to the children of such deceased son. It was, therefore, evidently intended that the surplus profits should accumulate during the lifetime of the sons for the benefit of their children and such accumulation is not limited to the period within the minority of such children. While an accumulation for the benefit of an unborn child, which commences after its birth and terminates during its minority, is lawful, the statute does not permit an accumulation for the benefit of an unborn child where the accumulation is to commence before its birth. (Manice v.Manice,
We have discussed this question upon the assumption that the disposition of the surplus income derived from the personal property was the same as that derived from the real estate. It has been so held in Cook v. Lowry (
The judgment in this case reserves the question as to the manner of the distribution of the surplus after the birth of grandchildren. We, consequently, have considered the question only, during the period that intervenes between the death *451 of the testator and the birth of grandchildren, expressing no opinion whatever as to the manner of the distribution thereafter. While we may differ in the reasons given, the result reached by us is the same as that by the Appellate Division.
The judgment should, therefore, be affirmed, with costs to all of the parties appearing in this court, payable out of the surplus moneys of the estate.
PARKER, Ch. J., GRAY, MARTIN, VANN and WERNER, JJ., concur; BARTLETT, J., votes for affirmance on the grounds stated in the opinion of the Appellate Division.
Judgment affirmed.