105 N.Y. 68 | NY | 1887
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *70
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *71
The testator died in August, 1884, leaving a will and codicil, which were duly admitted to probate, as a will of real and personal estate. These, under established rules, are to be taken as one instrument and construed together as expressing the intent of the testator. If in one, therefore, the omission of certain technical words gives color to the contention of the appellant that no express trust is created, the other declares the design of the testator that the executor and executrix shall take the residuary estate for the object declared and set forth in the will, and it is sufficient if from the two instruments it can be implied that his intent was to establish a trust. (Morse v.Morse,
By the will he appoints his wife executrix and his brother executor, and by the codicil he says, "I do nominate and appoint" them "as my trustees for the purpose of carrying out any of its provisions." In the first place it would be difficult, if not impossible, to carry into effect the plan devised by the testator, except through the intervention of some third person who might collect, manage and retain his property until the time arrived for final distribution. Such functions are imposed on the executors. They are to pay the debts of the testator out of his estate, as soon "as shall by them be found convenient.' Each son is to have in property or money $10,000 on arriving at the age of thirty years. It was also the intention of the testator to provide for the support of his mother, his aunt and his sister, out of the property, and that so much as might be necessary should be paid to them for that purpose. To his wife the testator gave all his household furniture, "and the use and income" of all his real and personal estate "during her life," or "until after" his "death she marries," but in that case "in lieu of all dower, $10,000 in money to be paid" by his executors, and they are in terms authorized to dispose of any of his property to pay this sum, or to pay the legacies given to his sons. And although, as we have seen, his wife was to have the income of his estate, the executors are authorized, in their discretion, "to change the investment of" the testator's property, or *74 dispose of all or any part of it, "and invest the proceeds" in United States government, or New York State, or New York city bonds, registered, or on bond and mortgage. Upon his wife's decease the testator gives the "use and income" of his estate, subject to diminution by the support of his relatives above named, and the payment, when due, of the legacies to his sons, to those sons, "share and share alike, and upon the decease of his sons, to their heirs, should both have heirs, their father's portion only, and in case of one having no heirs, then to the heirs of the other, share and share alike, and if both should have no heirs, then as the law directs"
It is plain, therefore, that the executors are to have the management and direction of, and title to the property not specifically bequeathed, until the children attain the age of thirty years, and upon their death only the residue goes to whomsoever shall be entitled to it in remainder. The executors may not only invest, but reinvest, and in whose name, if not their own, shall the government, State or city securities be registered? They may also sell any part of the estate as in their judgment becomes necessary — they are to divide, therefore, they are to receive the income.
By these incidents the case seems to be brought within the rule that when the duties imposed are active and render the possession of the estate convenient and reasonably necessary, the executors will be deemed trustees for the performance of their duties, to the same extent as though declared to be so by the most explicit language. (Tobias v. Ketchum,
The remaining question has been presented with much earnestness on the part of the learned counsel for the appellant, and is of greater difficulty. His contention is, that the power of alienation of a portion of the estate is illegally suspended for a period beyond two lives, and the argument is placed on words already quoted. As before suggested, the trust created by the testator will continue after the wife's death and during the lives of the two sons. But upon the death of either, the children of the one dying, if he has any, will be *75
entitled to his share, but if he has none, then the heirs of his brother will be entitled to it, and upon the death of that brother, leaving heirs, the same result follows. Or both dying without heirs, the estate must go where the law directs. It follows that the property cannot be sold except for the purposes of the trust during the life of the widow. That is a suspension for one life. It must remain undisposed of during the life of the son first dying, that is the second life, and still undisposed of during the life of the other son; for the time fixed for distribution is the death of both sons. That makes the third life, and it is clear that the suspension of absolute ownership will or may exceed a longer period than the continuance of two lives. All these lives were in being at the time of the death of the testator, and must terminate not only as a condition precedent to the taking effect of the gift over, but before it can be known who will be entitled ultimately to take. This limitation is too remote and renders the disposition void. (1 R.S. 773, § 1; Knox v. Jones,
In Monarque v. Monarque (
Another question is presented by the pleadings, and was *76 considered by the court below; that relating to the mother, aunt and sister of the testator, all beneficiaries under the will, but we understand from concessions of counsel on the argument of this appeal, that it is no longer deemed material by either party. Other questions raised by the pleadings and answered by the court below — become immaterial by reason of the death of the testator's widow unmarried, and still others are not presented on this appeal, but, on the question argued, we think a valid trust was created by the testator to continue during the life or widowhood of the plaintiff Mary Jane Ward (and she having died, that question even becomes unimportant), but as to the residuary estate then remaining, it should be divided according to the statute of distributions in cases of intestacy.
The judgment appealed from should be so modified, and as modified, affirmed, the costs of this appeal to be paid out of the estate.
All concur.
Judgment accordingly.
