
    Annie Frazer and Margaret C. Harnett, Appellants, v. Robert J. Hoguet and Margaret Harnett, as Executors, etc., of Daniel Harnett, Deceased, and Others, Respondents, Impleaded with Others.
    
      Will — suspension of the power of alienation — not illegal where the estate rests at the end of two lives — a charge upon real esmte does not create it — who may object to the charge and to a bequest of more than one-half the estate to a leligious corporation.
    
    A testator by the 3d clause of his will devised certain real estate to his executors in trust for and during the lives of his wife and his sister-in-law, with directions to pay out of the income an annuity of §1,000 to the testator’s sister as long as she should live and as long as either his wife or sister-in-law should live, and upon the death of his said sister during the lives of either his wife or sister:in-law to pay the annuity of $1,000 to his sister’s son, should he be then living, as long as he should live and as long as his wife or sister-in-law should live.
    He further directed the executors and trustees to pay the balance of the income over the said annuity of $1,000, and in the event of the death of both of the annuitants during the lives of his wife or sister-in-law then to pay over the whole of said net income to his wife for and during her natural life; that should his sister-in-law survive his wife, the executors should pay her an annuity of $3,000 during her natural life, the surplus income to be paid to the residuary legatee or devisee named in the will during the life of the sister-in-law; that on the death of his wife and sister-in-law, should neither his sister nor her son be then living, his executors should convey the real estate to Michael A. Corrigan, Archbishop of New York, to have and to hold to him, his heirs and assigns forever, and iñ the event of his death during the life of the testator or of the lives of his wife or sister-in-law to the person who should at the time of the happening of said event be the Roman Catholic archbishop of New York, or, if the See should then be vacant, to the ordinary thereof; that should the testator’s wife and sister-in-law both die, leaving the testator’s sister or her son still living, the executors should convey the real estate to the archbishop or ordinary upon the condition that the archbishop or ordinary purchase an annuity of §1,000 for the benefit of the testator’s sister, and after her death for her son, said annuity to be a charge on the real estate, but that if the archbishop or ordinary should refuse to accept a conveyance of said real estate subject to the condition aforesaid, the executors should sell the real estate, and out of the proceeds purchase the annuity and pay the balance thereof to the said archbishop or ordinary, to have and to hold to him, his heirs and assigns forever. The 5th clause bequeathed all the “rest, residue and remainder ” of the testator’s estate, including such portion thereof as was not effectually bequeathed or devised, either by reason of lapse, illegality or other cause, to his executors in trust to pay over the net income and profits thereof to the testator’s wife during her natural life, and upon her death to convey the same to the above-mentioned archbishop, and in the event of his death to the persons mentioned in that contingency in the 3d clause.
    
      Held, that the 3d clause of the will did not suspend the power of alienation for more than two lives;
    That upon the death of the testator’s wife and sister-in law the title to the real estate vested in the archbishop of the diocese, or, in the event of his death, in the ordinary;
    That the provision of the will, that upon the termination of the trust the annuities should remain a charge upon the real estate until purchased as therein directed, did not suspend the power of alienation;
    That, assuming that such provision rendered the will invalid pro tanto, the invalidity was not available to a person who would not take under the residuary clause;
    That the residuary clause was not void as being an attempt to devise or bequeath income in perpetuity;
    That chapter 360 of the Laws of 1860, relating to devises or bequests of more than one-half of a testator’s estate to a religious corporation, can only be invoked by the persons mentioned in the statute.
    Appeal by the plaintiffs, Annie Frazer and another, from an interlocutory judgment of the Supreme Court in favor of certain defendants, entered in the office of the clerk of the county of New York on the 17th day of April, 1901, upon the decision of the court rendered after a trial at the New York Special Term sustaining a ■demurrer to the complaint upon the ground .that it fails to state a cause of action.
    
      The action is brought to have declared void a will made by one Daniel Harnett, or if it be found that the same or any of the provisions thereof are valid, then that such provisions may be construed and the meaning thereof judicially determined.
    It is averred in the complaint that Daniel Harnett died about January 1, 1900, leaving a last will and testament, which was duly probated, and letters testamentary were issued to the defendants Robert J. Hognet and Margaret Harnett, who were named in said will as executors and trustees, and that they duly qualified and entered upon the discharge of their duties as such; and that certain provisions of said will, which, it is averred, were made for'the benefit of the Roman Catholic Church, are void on the ground that it is thus sought to dispose of more than one-half of the estate of the testator contrary to the provisions of the statute (Laws of 1860, chap. 360).
    It is also averred that said will is void because by its terms and conditions the power of alienation of real estate is suspended for a longer period than two lives in being at the death of the testator, and that the ownership of personal property is also suspended for a period of more than two such lives; and that the residuary clause is also void because, as averred, no property is devised or bequeathed thereby to the residuary legatee and devisee, except the income of said residuary estate in perpetuity, which is contrary to the statute, and, therefore, the testator died intestate as to said residuary estate, and the plaintiffs are entitled to share therein.
    The testator left no descendants. His only heirs at law and next of kin are a sister, Johanna Shea, these plaintiffs, who are nieces, and the defendant John Harnett, a nephew (if he be living). The defendant Margaret Harnett is the widow of testator.
    After directing the payment of debts, funeral and testamentary expenses, tho testator bequeated to his wife all his personal property absolutely, and then made provisions as follows:
    “ Third. I give, devise and bequeath the stable known as numbers 15, 17 and 19 East 30th street and the house number 20 East 31st street in the City of Hew York to my executors, or such of them as shall take out letters testamentary on this my will, or to such person or persons as shall administer my estate and the survivor of them in trust, for and during the lives of my wife Margaret Harnett and my sister-in-law Anne Crilly to receive the rents, income and profits thereof, and apply and pay over the same in manner following, that is to say, to pay all taxes, assessments, water rents, insurance premiums, necessary repairs and charges thereon; with the reservation or exception, however, and it is my will, that my executors and trustees shall allow and permit my said wife Margaret Harnett and my sister-in-law Anne Crilly to use and occupy free of rent the house and lot Ho. Twenty (20) East Thirty-first (31st) street for and during their lives and the survivor of them, and to pay over the balance of such rents, issues and profits to and for the following uses and purposes, viz.: To pay over out of said net income the annual sum of One thousand dollars in gold or its equivalent by sight draft on Ireland, to my sister Johanna Shea, now residing at Cleveraugh near Listowel, in the County of Kerry, Ireland, should she survive me, so long as she shall live, and so long as either my said wife Margaret Harnett and my sister-in-law Anne Crilly shall be yet living, said sum to be paid half yearly, the first payment to be made at the end of six months after my decease; and upon the death of my said sister Johanna Shea, during the lives of either Margaret Harnett or Anne Crilly to continue over said annual sum of One thousand dollars to her son Daniel Shea should he be then living, so long as he live, and so long as either the said Margaret Harnett or the said Anne Crilly shall be yet living, in the same manner as I have provided for the payment of the annuity to his mother, but if he be in the United States, said payment to be made in lawful United States money, but if he be abroad the same to be made in gold or its equivalent by sight drafts on Ireland or whatever foreign country he may be living in.
    “ And upon the further trust I direct my executors and trustees to pay over the balance of said net income over and above said annuity of One thousand dollars, and in the event of the death of both of said annuitants Johanna Shea and Daniel Shea during the lives of either said Margaret Harnett or Anne Crilly, then to pay over the whole of said net income to my wife Margaret Harnett, for and during her natural life, to be paid quarterly beginning from the time of my decease.
    “ Should my said sister-in-law Anne Crilly survive my said wife, then I direct my said executors and trustees to pay out of said net income to the said Anne Crilly the .annual sum of Two thousand dollars for and during her natural life, the same to be paid in quarter-yearly payments, and in case the said Anne Crilly survives my said wife as aforesaid, so that she becomes a beneficiary under this clause of my will and should she continue to occupy the house Number 20 East Thirty-first Street, free of rent as aforesaid, and should the net income from the said stable Numbers 15, 17 and 19 East Thirtieth Street, exceed the said annuity of One thousand dollars to Johanna Shea or Daniel Shea and the said annuity of TVo thousand dollars to the said Anne Crilly, then in that event I direct my said executors and trustees to pay over such surplus of income to the residuary legatee or devisee named in this clause of this my will so long as the said Anne Crilly lives. On the death of my said wife Margaret Harnett, and my sister-in-law Anne Crilly, or should they both die before me and should neither my sister Johanna Shea or her son Daniel Shea be then living, then I give, devise and bequeath, and I direct my executors and trustees, if necessary, to transfer, grant and convey said real estate, viz., Nos. 15, 17 & 19 East Thirtieth Street and Number 20 East Thirty-first street to the Most Reverend Michael A. Corrigan, Archbishop of New York, to have and to hold to him, his heirs and assigns forever, and in the event of his death, during my lifetime, or during the lives of said Margaret Harnett and Anne Crilly, to the person who shall at the time of the happening of said event be the Roman Catholic Archbishop of New York, or if the said See shall then be vacant, to the person who shall then administer the spiritual affairs of said diocese, commonly called the Ordinary thereof.
    “ But should the said Margaret Harnett and Anne Crilly both die, leaving my said sister Johanna Shea and her son Daniel Shea or either of them still living, then I direct my executors and trustees in that event to transfer, grant and convey said real estate to said Archbishop or Ordinary upon the condition that said Archbishop or Ordinary purchase in some good and reliable insurance or other Annuity Company, an annuity of One thousand dollars for the benefit of the said Johanna Shea, and after her death for the benefit of her son Daniel Shea, said annuities to be a charge on said real estate until purchased as aforesaid; but should said Archbishop or Ordinary refuse to accept a conveyance of said real estate subject to the condition aforesaid, then in that event I direct my executors and trustees to sell the said real estate, and out of the proceeds thereof to purchase such annuities and pay the balance thereof to the said Archbishop or Ordinary, as above set forth, to have and to hold to him, his heirs and assigns forever.
    
      “Fourth. I hereby authorize my executors and trustees to lease my real estate or any part thereof for a term not exceeding five years at any one time.
    “ Fifth. All the rest, residue and remainder of my estate real and personal of whatsoever kind and wheresoever situate of which I am or may be seized or possessed' or in anywise entitled at the time of my death, including all such estate as may not be hereinbefore effectually bequeathed or devised either by reason of lapse, illegality or other cause whatever, I give, devise and bequeath to my executors and trustees hereinafter named and the survivor of them in Trust, nevertheless to collect, demand and receive the rents, income, issues and profits thereof, and to pay over the net income and profits thereof unto my wife Margaret Harnett for and during her natural life, and upon her death I hereby give, devise and bequeath the same and hereby direct my executors and trustees, if necessary, to transfer, grant and convey the same unto the Most Reverend Michael A. Corrigan, Archbishop of Hew York, to have and to hold to him, his heirs and assigns forever, and in the event of his death during my lifetime or during the lifetime of my said wife to the person who shall at the time of my death and hers be the Roman Catholic Archbishop of Hew York, or if the said See shall then be vacant, to the persons who shall then administer the Spiritual affairs of said diocese commonly called the Ordinary thereof.”
    The defendants, Robert J. Hoguet and Margaret Harnett, as executors, and Margaret Harnett and Anne Crilly, individually, demurred to the complaint generally on the ground that it failed to state facts sufficient to constitute a cause of action, and specifically to so much thereof as attempts to set up a cause of action to the effect that the will is void as being contrary to the Statute of Perpetuities ; to so much thereof as attempts to set up a cause of action to the effect that one or more of the devises or bequests in said will are invalid for the reason that they violate the provisions of chapter 360 of the Laws of I860.
    
      These demurrers were sustained at Special Term and a judgment granted dismissing the complaint, with costs, and from such judgment the plaintiffs bring this appeal.
    
      I. Newton Williams, for the appellants.
    
      William P. Quin, for the executors, respondents.
    
      John P. Kerna/n, for the respondents Margaret Harnett, individually, and another.
   Hatch, J.:

So far as disposition is made by this will of the personal property there can be no possible controversy, for by the 2d clause the personal property is bequeathed to the wife of the testator absolutely, and the title thereto vested immediately in her at the death of the testator ; therefore, no further consideration is necessary respecting this question.

It is the claim of the plaintiffs that the 3d clause of the will offends against the Statute of Perpetuities, and that there is an unlawful suspension of the power of alienation for more than two lives. It is quite evident from the reading of this clause of the will that the person who drew the same had in mind the rule respecting the suspension of the power of alienation, and, as we read the language of this clause, he carefully avoided infringement of such rule. By it a trust is created and certain real estate therein mentioned is devised to the executors -in trust for and during the lives of the wife and sister-in-law, with express directions as to payment over of the income, (1) to the wife and sister-in-law; and (2) $1,000 in gold annually to a sister residing in Ireland, and if said sister should die during the lives of the wife and sister-in-law, the $1,000 directed to be paid to her is to be paid to her son, if he be living, so long as he shall live during the lifetime of the wife and sister-in-law ; and if both the sister and son die then the payment is to be made to the wife and sister-in-law and to the longest liver of them. It is clearly apparent, therefore, that these provisions do not create an unlawful suspension of the power of alienation, for the payment of the annuity to the sister or her surviving son is in terms made to end, so far as the trust estate is concerned, with the termination of the trust, viz., upon the death of both the wife and sister-in-law. Upon the happening of this event this clause of the will directs the executors and trustees to transfer, grant and convey the real estate to the Most Reverend Michael A. Corrigan, archbishop of New York, to have and to hold to him, his heirs and assigns forever ; and in the event of his death during the life of the testator, or of the joint lives of the wife and sister-in-law, to the person who should, at such time, be the Roman Catholic archbishop of New York, or, if the see should then be vacant, to the ordinary administering the spiritual affairs of the diocese; and if the wife and sister-in-law should die leaving testator’s sister, or her son, or either of them, still living, the executors and trustees in such event should transfer such real estate to the person named above, upon the contingency therein provided, upon the condition that such person purchase an annuity of $1,000 for the benefit of the sister, and after her death for the benefit of the son, and the will makes such annuity a charge upon the real estate until purchased. If the archbishop or ordinary refuse to accept a conveyance subject to the conditions, then the executors and trustees are directed to sell the real estate and out of the proceeds purchase such annuity and pay over the balance to the archbishop or ordinary, who is to have and hold the same to him, his heirs and assigns forever.

It seems clear from these provisions that immediately upon the death of both the wife and the sister-in-law an absolute devise is made of the real estate and title thereto vested in the archbishop, or, in the event of his death, in the ordinary of the diocese. Such vesting was not hampered by any condition whatever, and in the persons named who took the fee was vested the immediate power of alienation of the whole estate devised. The condition contained in this clause of the will relates, not to the vesting of the fee, or the effect of the devise; it simply seeks to name with certainty the person who shall take. The testator was careful to provide for all the conditions which the course of distribution of his property might create, and therein it was contemplated that the archbishop might not be in being, or both he and the ordinary might refuse to take, and in such event the will vests in the trustees immediately upon the death of the longest liver of the life annuitants a power in trust to sell the real estate, purchase an annuity and pay over to the archbishop or the ordinary the remainder. If this contingency should happen the effect would be to work an equitable conversion of the real estate into money, but the power of alienation and the disposition of the proceeds would not thereby be suspended for an instant. It is said, however, that the charge of the annuity upon the real estate, payable to the sister or to her son, is a limitation upon the power of alienation which renders the will in this respect void.

This contention cannot be upheld. The mere fact that the purchase of the annuity was postponed to a future time did not prevent the immediate vesting of the estate. The fact that it could only be done in the future in carrying out the terms of the will necessarily contemplated the lapse of some time. Such delays, which involve either mere prudential arrangements or affect the convenience of administration, are never held to offend against the Statute of Fertilities. (Robert v. Corning, 89 N. Y. 225; Cruikshank v. Home for the Friendless, 113 id. 337.) The charge itself was in the nature.of an incumbrance and no more interfered with the vesting of the fee than would the existence of a mortgage or the charge of a legacy. It was in reality in the nature of a legacy and vested in the annuitant immediately with the vesting of the estate. Such conditions do not prevent the descent of the estate, nor occasion a suspension of the power of alienation. (Marsh v. Wheeler, 2 Edw. Ch. 156; Loder v. Hatfield, 71 N. Y. 92.)

Assuming, however, that this defeated the provisions of the will, it would only render it void pro tanto, and under the provisions of the residuary clause of the will, as we shall hereafter see, would not inure to the benefit of the plaintiffs.

We are also of the opinion that there is nothing in the contention that the residuary clause is void as being merely an attempt to devise or bequeath income in perpetuity. All of the estate, not theretofore effectually devised or bequeathed, vests under this clause upon the death of the wife and the sister-in-law in the defendant Corrigan, or, if he be dead, in the other persons named as the contingency shall require. The words “ devise and bequeath the same ” relate to the rest, residue and remainder ” of the estate and not to the words “ net income.” The clause itself is clear and unambiguous and is a distinct devise and bequest of all the rest, residue and remainder of the estate to individuals, and operates to save any lapsed or void legacy. (Fairchild v. Edson, 154 N. Y. 199; Riker v. Cornwell, 113 id. 115.)

In order to give any apparent force to his contention in the interpretation of this clause of the will, the appellant, in his brief, commences to quote in the middle of a sentence, and begins such quotation with a capital letter “ To collect, demand,” etc., as if this were the principal direction as to the residuary estate. The division is misleading and it is needless to say was'never intended by the testator and distorts the meaning of the clause as a whole.

The appellants further contend that the provisions of the will are void, in that it is contrary to chapter 360 of the Laws of 1860, as it is a devise or bequest of more than one-half part of the testator’s estate to a religious corporation. It is not at all necessary that we determine whether this gift is to the Roman Catholic Church, or to the archbishop as an individual. Assuming it to be the former, for present purposes, it is perfectly evident that the plaintiffs take nothing thereby and have no interest therein. This testator left no child or parent; he did leave a wife, but these plaintiffs would take nothing by descent or distribution from or through her; they are not of the class of persons named in the statute, and it has been held that “ The rights springing from the statute are personal, the same as the rights of a borrower under the Statute of Usury,” and only the persons named in the act and those benefited through them can invoke its protection. (Amherst College v. Ritch, 151 N. Y., 282.)

It follows that the judgment appealed from should be affirmed, and, as the plaintiffs can take nothing under the will, they are possessed of no cause of action! The complaint should, therefore, be dismissed, with separate bills of costs to the respondents.

Van Brunt, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.

Judgment affirmed and complaint dismissed, with separate bills of costs to the respondents.  