
    Bernard McGowan and others v. Ann McGowan and others.
    (Before Duer and Campbell, J.J.)
    February 21;
    February 26, 1853.
    B. McGowan, by his last will devised all his estate to his wife, “ for her own be-hoof, and the maintenance of his children, and upon his son John (the youngest child) becoming of age, the whole estate to be equally divided among his seven children (naming them), and that should death take either from the world, it should be equalty divided among the survivors.”
    
      Held, That the devise created no trust suspending the power of alienation, and that, at any rate, the suspense, if any was created, could not exceed a single life in being at the death of the testator.
    Judgment at special term affirmed with costs.
    Appeal from a judgment at special term, sustaining a demurrer to the complaint.
    The suit was for the partition of certain real estate in the city of New York, which had belonged to Bartholomew McGowan, deceased. The plaintiffs were two of the children of the deceased, who claimed to be entitled, as heirs at law, to two sevenths of the estate. The defendants were the widow and the remaining five children of the deceased. The complaint admitted that the deceased had made a will, duly executed and published, devising all his real estate, but insisted that the devise was absolutely void, as repugnant to the provisions of the Rev. Stat., respecting the creation of .estates in land. The devise; which was set forth in the complaint, and upon the validity of which the case turned, was in these words: “ Second. I give and bequeath to my wife Ann all my real and personal estate whatsoever; the real estate consisting of house and lot 38 Centre street, and houses and lot 17 Roosevelt street: the personal estate in the house now occupied by me, 17 Roosevelt street, for her own behoof and the maintenance of my children, her to keep economically as possible, after paying my just debts, to rear and educate my children, and give them trades, whereby they may help her; and at my son John becoming of age, the whole of my estate to be divided equally among my children, named Bernard, Alice, Bartholomew, Martin, Matthew, Mary, and John, seven in all; but should death take either from the world, it shall be equally among the survivors.”
    The defendants demurred to the complaint, upon the ground that it appeared upon its face that the plaintiff had no right to claim a partition, and judgment upon the demurrer was "rendered at special term in their favor.
    
      M. Hoffman, for the plaintiffs,
    insisted that the devise suspended the power of alienation for a greater period than two lives in being at the death of the testator: and also created a suspense for an absolute term of years, namely, the possible duration of John’s minority. It was therefore absolutely void, and the estate descended to the testator’s heirs at law. (He cited 2 R. S., 3 id., p. 10 and 15; 16 Wend. 61; 1 Sand. Ch. R. 359; 4 id., pp. 414, 515, 528.)
    
      C. Schaffer, contra.
   By the Court. Duer, J.

The widow in this case took the whole estate subject to the maintenance and education of the children, as a charge, which a court of equity might enforce (2 Hare, 607. 10 Simons, 293. 8 L. and Eq. R., p. 53), but which created no trust under the provisions of the R. S. She was not bound to apply the whole rents and profits to the use of the children, and hence the case is not covered by sub. 3, § 55 in the title of uses and trusts (1 R. S., p. 328), and it is only an express trust created under this subdivision, which suspends at all the power of alienation. Under the provisions of this will there is no suspense except such as may be occasioned by the minority of the children—there is none which is caused by any limitation or condition in the will (1 R. S. § 15, p. 23).

Even could we hold that the will creates an express trust suspending the power of alienation, the suspense is limited to a single minority, and is therefore valid. According to the settled construction of such a limitation, the suspense would terminate on the death of John the youngest child, and is therefore confined to a single life in being. We see nothing in the provisions of the will that should lead us to depart from the general rule. On the contrary, we believe that a single minority was selected for the very purpose of meeting and avoiding the objection that has been relied on. Should John die during his minority, the fee would vest immediately in the surviving children, and in the fee, the charge for their education and maintenance would necessarily be merged. The estate of the widow and the trust attached to it would then cease.

The principles of our decision in Lang v. Ropke (5 Sand. 368), will be found on examination to embrace this case.

The judgment at Special .Term is affirmed with costs.  