
    Matter of the Judicial Settlement of the Account of William K. Murray, as Executor Under the Last Will and Testament of Michael Welsh, Deceased.
    
      (Surrogate’s Court, Queens County,
    
    
      Filed December, 1901.)
    ExpRess Trust — Alternative Limitations, One Valid, and One 'Suspending Illegally the Power of Alienation — Power in Trust.
    A valid testamentary express trust, in executors, to receive the rents and profits of lands of their testator and apply them to the use of a person during life, is not invalidated by a subsequent and separate clause of the will directing them, upon the death of the beneficiary or at tile expiration of fifteen years after the testator’s decease, “whichever event shall last occur,” to sell the corpus and divide the proceeds in a manner specified, as, although the limitation predicated upon years is void, the alternative limitation upon the life of the beneficiary is valid and saves the devise.
    Provisions not within the statute of trusts, but for purposes which may be lawfully performed under a power in trust, are valid as a power.
    Affd., 75 App. Div. 246.
    Proceedings upon the judicial settlement of tbe accounts of an executor.
    M. D. .Gould, for executor; Monfort & Faber, for Bridget Welsh; Henry A. Monfort, special guardian for Johanna Welsh, Owen Welsh and John Welsh, infants; John J. Gleason, special guardian for Bessie Welsh, Mary Welsh, Joseph Welsh, Eugene Welsh and Agnes Welsh, infants.
   Noble, S.

— This matter comes before the court on the petition of William K. Murray, as executor, to have his accounts judicially settled as such.

The accounts as filed are objected to by Bridget Welsh, widow and Johanna Welsh, Owen Welsh and John Welsh, children of Joseph Welsh, a deceased nephew of the testator above named, and on the following ground's:

First. On the ground that the provisions contained in the seventh, eighth and twelfth paragraphs of the will of the testator, and the second paragraph of the codicil thereto, are void.

Second. That the executor erroneously credits himself, in said account, with payments, made under and pursuant to the alleged void provisions of the will and codicil, to Michael Welsh as legatee; and then to the statement of interest of these objectors in the estate of the deceased as set forth in Schedule D of the account, and also to the statements of the interest of the said Michael Welsh, legatee, heretofore mentioned, and on the ground that these statements are erroneous.

Then follow minor objections hereafter disposed of.

After which follows the last paragraph and objection, numbered six, which, together with number one and two remains undisposed of, and is as follows: VI. And on the ground that the said executor, in said account, fails to credit these objectors with together being the owners of one equal undivided one-half of all the real property left by the testator, covered by the said void provisions of his said will and codicil.

The executor interposes an answer to the objections by pleading the terms of the will, his obedience to the instructions of the court, etc., and practically asks the court’s advice in the further administration of the estate.

Paragraph seventh of the testator’s will follows:

I give and devise to my executors in trust for the uses and purposes hereinafter mentioned, to wit:
“ In trust in the first place to let and rent the same and collect and receive all the rents, issues and profits thereof and apply the same to the payment of the taxes, assessments and insurance thereon and in keeping the buildings thereon in good repair. In trust in the next 'place to pay the balance of such rents, issues and profits to my said nephew, Michael Welsh, for his individual use and benefit in the month of January in each year during the term• of his natural life, provided that prior to such payment my said nephew shall deliver to said executors satisfactory receipts and vouchers showing that he has paid the taxes and assessments, insurance and repairs on the property at Little Neck hereinbefore given to his life use. In trust in the next place to make the payments and repairs affecting the Little Neck property hereinbefore required to be made by Michael Welsh in case of his failure to make the same and to pay over the balance to my said nephew, Michael Welsh.
“ The property given to my said executors in trust for the purposes aforesaid consists of my three lots and the houses thereon situate on the southerly side of Grove street, my one bouse and lot on tbe northerly side of Grove street, and my two lots, with houses thereon, situate on the easterly side of Lawrence street, all in the village of Flushing aforesaid.”

Then follows paragraph eighth, as follows:

Eighth. Upon the death of my nephew', Michael Welsh, or -- at the expiration of fifteen years after my decease, whichever event shall last occur, I direct, authorize and empower my ecx-ecutors to sell at public or private sale the said houses and lots herein devised to them in trust as aforesaid, and to execute and deliver good and sufficient conveyance therefor and after defraying the expenses of such sale.
“ I give and bequeath one equal half part of the net proceeds of such sale to the children of my nephew, Michael Welsh, who shall be then living and to the descendants of such as shall be then dead leaving issue surviving, to be divided among them so that the children then living shall take equal shares and the descendants of such as have died shall take the share which their parent would have taken if then living.
“ I give and bequeath the other equal half part of the proceeds of such sale to my nephew, Joseph Welsh, now residing at Martinsburg, West Virginia, and to his heirs and assigns forever.”

Out of these two paragraphs of the testator’s will arise the objections interposed to the settlement of the executor’s accounts as aforesaid, the objecting parties contending that the testamentary dispositions contained in paragraphs seven and eight are illegal and void, for the reason that they are in: violation of the statute against the suspension of the power of alienation, and that both paragraphs (seven and eight) must be read together to find the true intent of the testator, that one supplements the other, and only when so taken together do they disclose the object of the testator, the creation of a trust void as aforesaid.

A perusal of paragraph seven discloses that the testator devised to bis executors certain specific real property upon a number of trusts and particularly upon tbe trust to receive tbe rents and profits of tbis real property and apply tbe net income and profits thereof to tbe use of bis nephew, Michael Welsh, during bis life.

Tbe other so-called trusts in this paragraph mentioned not being permitted by statute, but being for purposes which may be lawfully performed under a power, are valid as a power in trust.

With these last mentioned eliminations, we have all tbe required elements of an express trust in real property:

A lawful purpose.

Specified property to be held in trust.

Vesting of title in -trustee.

A certain term, and authority to receive rents and profits.

Standing alone, tbe provisions contained in paragraph seven are lawful and create an express trust permitted by statute, limited by a term not greater than two lives in being namely: during the life of nephew, Michael Welsh, and, therefore, there is no unlawful suspension of tbe power of alienation.

But counsel for tbe widow and heirs of Joseph Welsh contend that paragraph eighth must be read with paragraph seven, and that, in tbe eighth paragraph, is found the limitation of the trust created in the seventh paragraph. This paragraph reads as follows:

“Eighth. Upon the death of my nephew, Michael Welsh, or at the expiration of fifteen years after my decease, whichever event shall last occur I direct, authorize and empower my executors to sell at public or private sale the said houses and lots herein devised to them in trust as aforesaid and to execute and deliver good and -sufficient conveyances therefor, and after defraying the expenses of such sale, I give and bequeath one equal half part of the net proceeds of such sale to the children of my nephew, Michael Welsh, who shall be then living and to the descendants of such as shall be then dead, leaving issue surviving to be divided among them so that the children then living shall take equal shares, and the descendants of such as have died shall take the share which their parent would have taken if then living.
“ I give and bequeath the other equal half part of the proceeds of such sale to my nephew, Joseph Welsh, now residing at Martinsburg, West Virginia, and to his heirs and assigns forever.”

The direction to sell and divide, contained in the eighth paragraph, and upon the alternative events upon which it is limited, is, by the objectors’ contention thought to be substituted, or supplemented, for, or to, that direction contained in the seventh paragraph, which limits the trust estate during the life of nephew, Michael Welsh, and their desired construction would practically make the seventh paragraph, supplemented by the language of the eighth, read — -that the rents and profits of the devised realty should be paid to nephew, Michael Welsh, during the term of his natural life, and, if he died immediately after the testator, for a period of fifteen years.

This obviously cannot be so, and the reading together of the provisions as to limitation in paragraph eight, with all the provisions of paragraph seven, does not aid in the construction of paragraph seven, but would put a strained and tortured interpretation to that which, standing alone, needs no interpretation, namely: that paragraph seven creates a legal trust with a legal limitation. Even if it were possible that the provisions contained in the eighth paragraph extended the trust period, the period in which the legal estate was to repose in the executor, to a time fifteen years after the death of the testator, or, repeating the language of the eighth paragraph of the will, “ Upon the death of my nephew, Michael Welsh, or at the ex-jfiration of fifteen years after my decease, whichever event shall last occur, etc., etc.,” the alternative event being void on account of remoteness and in contravention of the statute against perpetuities, the trust would be saved on the happening of the other good alternative, the death of nephew, Michael Welsh. Schettler v. Smith, 41 N. Y. 328; Hascall v. King, 162 id. 134. This doctrine has been sustained through a long line of decisions since the enactment of the Revised Statutes.

When any one part of a will, or any other instrument for ■that matter, is ambiguous or unintelligible and needs interpretation, several parts harmonious with each other, or, if necessary, the whole instrument, must be read to find the true intent of the testator or the parties thereto. This is a well settled rule and needs no further comment.

So, to find the true intent of the testator as to the seventh paragraph of his will, all of his will has been read to find his intention as expressed in that paragraph.

Though there is no necessity at this time, yet it might elucidate and be beneficial, in the nature of advice to the executor, to have construed the eighth paragraph as far as it relates to the seventh.

It is apparent that the chief object of solicitude of the testator was his nephew, Michael Welsh, and he desired to, and did, make him his principal object of bounty by devising the specified property in paragraph seven of the will and that mentioned in paragraph two in the codicil in trust to his executors to receive the rents and profits and pay over the net income to his nephew during his life.

The eighth paragraph provided that “ Upon the death of my nephew, Michael Welsh, or at the expiration of fifteen years after my decease, whichever event shall last occur— " then follows an imperative direction to sell and convey all the property herein devised to them in trust as aforesaid. Then after defraying the expenses of the sale directs them to divide the net proceeds of the sale among a number of legatees mentioned, etc.

Tbe trust term having come to an end, and the object of the trust being executed by the receiving of rents and profits and the paying over of them to Michael Welsh during his life, and there being no further authority to receive rents and 'profits for any purpose, the devise contained in this eighth paragraph, if it needed any interpretation, which it does not, would be interpreted, by the' statute as a power. . But the language of the paragraph itself is too explicit to be questioned. A power is given the executors to sell and convey and to divide the net proceeds of the sale among legatees named therein. This power is inqperative and works an equitable conversion of the realty into personalty the moment the power becomes effective.

So, here the question is: When does it become effective? And the question arises: Is the limitation upon which it arises lawful ?

This power is directed to be exercised “ upon the death of my nephew, Michael Welsh, or at the expiration of fifteen years after my decease, whichever event shall last occur.”

At the happening of one or the other event which should last occur. Here the same reasoning applies as above:

The alternative event; the period of time to elapse after the death of the testator, should Michael Welsh die before then, is contrary to the provisions of the statute against perpetuities and postpones the alienation for a period other than lives in being, and is void. But the other alternative, on the death of Michael Welsh, is good, being a period not greater than two lives in being, and sustains the devise. The power in trust is valid on that account. See cases cited.

Another evidence as to the testator’s intention as to what he intended in the seventh paragraph may be gleaned from the expression used- in the eighth paragraph, where, defining what property he authorized and empowered his executors to sell, pointing them out as “ the said houses and lots herein devised to them in trust as aforesaid.” Here he speaks; of something done previously and as a whole, and in tbe second clause of tbe codicil of bis will be reiterates tbe creation of tbe trust in tbe seventh clause and enlarges tbe source from which tbe income is to be derived.

Tbe validity of tbe twelfth paragraph of tbe testator’s will and tbe second paragraph of-tbe codicil being entirely dependent upon that of tbe seventh and eighth paragraphs, and they being valid, are sustained with them.

In view of tbe foregoing, all objections are dismissed.

Let a decree bé entered accordingly.

Decreed accordingly.  