
    Arthur P. Mills et al., Trustees, Plaintiffs, v. Lavina Frances Mills et al., Defendants.
    (Supreme Court, New York Special Term,
    August, 1899.)
    1. Trust — Foreign, improperly suspending the power of alienation.
    The scheme of a testamentary trust, valid in the foreign State where it was created, and affecting New York real estate, was that the executors and trustees should hold the residuary estate and divide its income between his widow and his three children during their lives, the income to be divided among the survivors as each life ceased and the last survivor to enjoy the whole income. After her death certain charitable legacies were to be paid and the balance was to pass absolutely to a museum of fine arts of said foreign State.
    Held, that as there was no time during the existence of the four lives when an absolute fee in possession could be conveyed, the power of alienation was, as to the New York real estate, illegally suspended and that the testator died intestate as to it.
    2. Same — Personalty used by foreign trustees to pay New York mort-
    gages — Subrogation.
    The will directed the foreign executors and trustees to pay “ all mortgages which may be upon any real estate owned by me at the time of my decease ”. The executors paid from the personalty a mortgage on the New York real estate.
    Held, that as the primary purpose of the testator was to benefit his widow and children, the payment was proper, and that the museum was not entitled to subrogation, as against that real estate, to the extent of ihe payment; and particularly when it had been confirmed by the foreign court on the accounting of the executors.
    Action for the construction of a will.
    David B. Ogden, for plaintiffs.
    William E. Oarnochan, for widow and heirs.
    John J. Oadwalader, for Museum of Fine Arts.
   Russell, J.

The difficulty in the construction of the last will and testament of Dexter T. Mills, of Boston, arises out of the differing laws of Hew York from those of Massachusetts as to the power of suspension of alienation for more than two lives in being at the creation of the trust. The will of the testator was valid, under the law of Massachusetts, but a portion of his estate .consisted of real property Ho. 80 Pearl street, in the city of Hew York. By his will the testator first directed his executors to pay all his just debts “ and all mortgages which may be upon any real estate owned by me at the time of my decease.” He then gives certain specific legacies, easily payable out of his personal property, leaving a balance of personalty upon which, as well as upon his real estate, the remaining clauses of his will operated. The residuary clause of that will is as follows:

“All the rest, residue and remainder of my estate, real, personal and mixed, of every name and nature, of which I may die seized, possessed or entitled, together with any legacy hereinbefore given which may lapse or become void by reason of the death of the legatee before my decease, I give, devise and bequeath unto Arthur P. Mills and Horace Q-. Allen, of Boston aforesaid, to have and to hold to them and their heirs and assigns forever, but in strict trust nevertheless for the following purposes, to wit: To pay the net income from said trust estate to- such of the said Lavina Frances Mills, Ann Dexter Mills, Helen Whittington Ooolidge and Susan Lincoln Mills as may be living at my decease, in equal shares, for and during their respective lives, such' payments to be made for their sole and separate use upon their own proper receipt in writing, free from all marital control or interference and not by way of anticipation or in compliance with any assignment. Upon the death of either my said wife or any of my said daughters, after my decease, the income previously paid to such deceased under the terms of this trust shall thereafter be divided equally between such of my said wife and daughters as survive; it being my desire that the entire income from said trust fund shall be divided into as many parts or portions as there are survivors of my said wife and daughters from time to time.
“ Upon the death of the last survivor of my said wife and daughters I give, devise and bequeath the property then held by said trustees or their successors as follows, to wit:
“ Ten thousand dollars from said fund to the Home for Aged Couples in Boston. ' Five Thousand Dollars from said fund to the Home for Aged Men in Boston. Five Thousand Dollars from said fund to the Home for Aged Women in Boston. The entire residue and balance of said trust fund to the Trustees of the Museum of Fine Arts in Boston, to have and to hold forever free and discharged of all trust herein created.”

The action here affects only the real estate in the city of Mew York. Was the power of alienation unduly suspended for more than two lives in being by the trust clause, and did the disposition of the residue, after the trust estate terminated, fall with an illegal creation of that trust estate?

The scheme of that estate, bequeathed and devised in trust, was that the trustees should hold the legal title during the respective lives of the widow and the three children, and give to each the net income of an equal share, enhancing that income to the survivors as fast as death released any of the shares so that the last survivor would take the whole income on her death; then, and then alone, should the trust fund, less $20,000 bequeathed to three eleemosynary institutions in Boston, be the absolute property of the Museum of Fine Arts. This is not the case where, upon the death of one, the share held in trust for that one becomes released from the fetters of the will and goes absolutely to the survivors, thus separating the trust estate into shares, no one of which shall survive beyond two lives; nor is it a case where the beneficial interests of those succeeding to the persons named may be lopped off as unessential to the entity of the whole scheme; but it is a plan rounded and complete, valid by the laws of the State in which the will was made, by -which the beneficial income was not released until the termination of the fourth life, and the power of alienation was not transmitted to any absolute owner of either the income or the principal until that termination occurred. Duncklee v. Butler, 38 App. Div. 100; Amory v. Lord, 9 N. Y. 403; Hobson v. Hale, 95 id. 588; Fowler v. Ingersoll, 127 id. 472; Shipman v. Rollins, 98 id. 311.

There was no period when an absolute fee in possession could be conveyed during the existence of the four lives named.

The residuary clause under consideration is not one of general residuary effect, taking in all of the remnants which fall into the estate devised, whether by lapse or ineffectiveness of bequest or devise of the parts specifically bequeathed or devised; it is a residuary bequest and devise, limited in purpose and effect,' to have beneficial operation only upon the cessation of enjoyment of the life income by the four persons named, and, therefore, does not reach out to grasp immediately portions of the estate which can-, not pass under the trust clause primarily for the benefit of the widow and the children, so that, neither by the letter nor by the spirit of the will, should the Museum of Fine Arts, as residuary devisee, take immediately property not intended to be-enjoyed by it until after those four lives had terminated; and it is easily to be perceived that, if the testator had known of the ineffectiveness of his devise in trust as to real property in the State of Hew York, it would more accord with his scheme to have that real estate pass absolutely to his three heirs-at-law, his daughters and his widow, whom he intended to benefit by the income through their lives, than to allow the absolute estate to pass immediately upon his death away from them to the Museum of Fine Arts. The estate, therefore, in Hew York, goes into intestacy rather than into the residuary clause, and that residuary clause cannot be upheld with the intervening title going to the heirs and the widow during their lives, for it is dependent upon the validity of the prior estate. Shipman v. Rollins, supra; Fowler v. Ingersoll, supra.

Hor does the power of sale to the executors assist as conferring the right of alienation. Brewer v. Brewer, 11 Hun, 147; affd., sub nom. Brewer v. Penniman, 72 N. Y. 603; Amory v. Lord, supra; Hobson v. Hale, supra. It must, therefore, be held that the real estate in the State of Hew York went into intestacy.

Secondly. The remaining question arises out of the use of the sum of $9,000 by the executors in the city of Boston, in paying out of the personal property the mortgage resting upon the real estate in Hew York. It is claimed by the Museum of Fine A rts -that, as a portion of the personal property was diverted to ease the Hew York real estate from the burden of the mortgage, it should have the equitable right of subrogation as against the Hew York property to that amount. It is true that, considering the personalty and the realty as the residuary estate for the Museum of Fine Arts after the termination of the lives of the wife and daughters, this payment of the sum of $9,000 depleted the personalty that at some future time would be likely to go to the museum. It is also true that the customary rule is that the real estate must bear the burden of the payment of the mortgage where the mortgage is not a personal debt of the testator, as in this case, he buying this property in the city of Hew York subject to the mortgage and covenanting to indemnify the mortgagor, but not assuming the payment himself. Did the scheme of the will, therefore, intend this mortgage to be paid out of the personalty irrespective of any effect which that payment might have as to the rights of the beneficiaries in the will? The first disposing clause in that will directed, the payment of all mortgages upon the testator’s real estate. The subsequent scheme of the will, instead of modifying the effect of that clause, strengthened its application to the claim here made. Viewing the situation from the eyes of the testator, he undoubtedly contemplated his will as effective upon all of the property passed by it; he looked forward to his widow and daughters enjoying the income of the Hew York estate as well as the rest, and it may not be supposed that he would deprive them of the enjoyment of that Hew York estate for their lives, or any portion of it, by the retention of a mortgage upon it which in all probability would have to be paid during their lives. And viewing the disposition of all his property as for their benefit during their lives, and to be enjoyed only by the Museum of Fine Arts after the decease of all, it follows as a necessary consequence that he intended the payment of the mortgage to be made out of property ultimately coming to the Museum of Fine Arts, that institution receiving this property only after the diminution of the amount thereof by the sum called for by the mortgage. There is, therefore, nothing whatever in the will, even viewing it for the purpose of the argument as valid in the contemplation of the testator, to subvert the direction for the payment of all the mortgages on his real estate, and to free that estate entirely from such burdens during the lives of his widow and daughters. We would rather infer that, if he had known the ineffectiveness of the trust as to the Hew York real estate, he would have preferred the widow and daughters to own it absolutely, freed from the burden of the mortgage, than that he would wish the amount of that mortgage to be held as a claim by the Museum of Fine Arts, which was not to receive any of his ' property until that widow and those daughters had forever ceased to need any relief from its burdens.

This view seems to be in accord with the rulings in similar cases of the Massachusetts Supreme Court. Andrews v. Bishop, 5 Allen, 493; Creesy v. Willis, 159 Mass. 249; see, also, the New York case decided by Surrogate Bradford of Waldron v. Waldron, 4 Bradf. 114.

There is another consideration which pertains with considerable force to the solution of this question of subrogation. It appears by the conceded facts that a final accounting by the executors has been had, in which their payments out of the personal property have been ratified and confirmed, and which is effective and binding upon all of the parties to this litigation. If that payment of the New York mortgage was rightfully made, and it was so adjudged in Massachusetts, it would be somewhat difficult to revive its validity or power so as to make it an obligation as against the title held by the heirs to the real estate in this State.

Let judgment be entered in conformity with the views of this ■opinion.

Judgment accordingly.  