
    John D. Snedeker and Others, as Executors of the Last Will and Testament of John Poole Rolfe, Deceased, Plaintiffs, v. Helen Rolfe Congdon and Others, Defendants.
    
      Will—when a life estate and not a trust is created in personalty—when a trust imposed on a remainder does not unlawfully suspend the absolute power of alienation—an unlawful limitation imposed on an absolute gift —right of the owner in fee of a remainder to terminate a trust for her benefit and to the immediate possession of the fund.
    
    The will of a testator, whose estate consisted of personalty, provided: “I give to my said brother and sister the use, interest and income of personal property during their joint lives and the life of the survivor; subject to such life estate I give the principal of the rest, residue and remainder of my property and estate to my five nephews and nieces, as follows: * * *
    “o. To Enriquita Emma, daughter of my said brother, deceased, now wife of Winfield Scott Shrigley, of Valparaiso, Chili, one fifth (1/5) part of such property; hut it is my will, and I hereby direct, that such part shall he paid to and held in trust by her brothers, to apply the same and such parts thereof as they may deem proper to the separate use of their sister.”
    
      Held, that the will did not create a trust in favor of the testator’s brother and sister, but merely created life estates in favor of such persons;
    That the effect of the trust created in the share of Mrs. Shrigley was not to unlawfully suspend the absolute ownership of such share, as»the life estates •created in favor of the testator’s brother and sister were legal and capable of alienation, but that the clause providing that such share should be paid to and held in trust by Mrs. Shrigley’s brothers, "to apply the same and such parts thereof as they may deem proper to the separate use of their sister,” imposed a limitation upon the absolute gift previously made, which was repugnant to the gift and was, therefore, void;
    That as it was the duty of the trustees either to apply the whole of Mrs. Shrigley’s share to her use during her lifetime, or at her death to pay over the unexpended remainder to her estate, the case was analogous to that of a vested legacy where the time of the payment is postponed, and that Mrs. Shrigley’s interest was alienable; that, considered in this view, Mrs. Shrigley, having absolute ownership of the share and an absolute power of disposition thereof, was entitled to the immediate possession o,f the fund;
    That if the trust were to be regarded as one to invest the fund and apply the income arising therefrom to the use of Mrs. Shrigley during her life, with power in the trustees in their discretion to apply the principal or any part thereof to the same purpose, Mrs. Shrigley was entitled to the immediate possession of the fund upon executing the deed prescribed by chapter 453 of the Laws of 1893, which was in force at the time of the testator’s death, providing that any person beneficially interested in the income of a trust who is also entitled to the remainder upon the determination of the trust may abrogate the trust and acquire possession and absolute ownership of the property upon executing the deed mentioned in said act.
    
      Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    
      John P. Morris, for the plaintiffs.
    
      E. A. Carley, for the defendant Shrigley.
   Cullen, J.:

This controversy is as to the interpretation, validity and effect of certain provisions of the will of John P. Rolfe, who died at the city of Brooklyn in January, 1895, possessed of a personal estate amounting to $766,000. The material parts of the will are as follows : I give to my said brother and sister the use, interest and income of personal property during their joint lives and the life of the survivor; subject to such life estate I give the principal of the rest, residue and remainder of my property and estate to my five nephews and nieces, as follows: * * *

“ 5. To Enriquita Emma, daughter of my said brother, deceased, now wife of Winfield Scott Shrigley, of Valparaiso, Chili, one-fifth (1 /5) part of such property; but it is my will and I hereby direct that such part shall be paid to and held in trust by her brothers to apply the same and such parts thereof as they may deem proper to the separate use of their sister.”

Since the death of the testator the brother and sister mentioned in the will have died, and the present controversy is as to the right of Mrs. Shrigley to require payment to her personally of her share in the estate.

The learned counsel for Mrs. Shrigley assails the "validity of the trust attempted to be created in her share on the ground that it suspends the absolute ownership of that share for three lives, to wit, those of the testator’s brother and sister and that of Mrs. Shrigley herself. The foundation of this claim is that the will creates a trust in favor of the testator’s surviving brother and sister during their joint lives; for if the interests given to those beneficiaries are legal and not equitable, the bequest in their favor does not suspend the ownership of the property for any period. We are entirely clear that the will creates no trust in favor of the brother and sister. There is no express gift to the executors, and no direction for them to apply the income to the use of the legatees. The bequest of the interest and income of the property during life is the bequest of a life estate simply; and the testator (a lawyer of great experience in the preparation of wills and management of estates) fully appreciated the nature of the estate given, for in the gift of the remainder to his nephews and nieces he characterizes the precedent gift as “ such life estate.” It is true that the executors would not be justified in paying the estate over to the life tenants without security, ■and it would be their duty to invest the principal and pay the beneficiaries only the income. But this is the case with every gift of a life estate in a fund, yet a legal life estate, susceptible of alienation or release, can as well be created in money or a fund as it can in real estate. (Gilman v. Reddington, 24 N. Y. 9, 18; Everitt v. Everitt, 29 id. 39, 72; Bliven v. Seymour, 88 id. 469.) Ward v. Ward (105 N. Y. 68), on which the defendant’s counsel relies to support his theory of a trust, was an extreme case, and its doctrine should not be extended. However, it is plainly distinguishable from the present case, for there the testator appointed his executors as trustees for the purpose of carrying out the provisions of the will. In that will were also found certain provisions for payments which were regarded as inconsistent with a legal life estate in the widow. The will before ns is barren of any such features, and if we should construe it as creating a trust in favor of the life tenants, it would ho practically holdingdhat every life estate in a fund is per se a trust. We are of opinion, therefore, that this claim of the defendant is not well founded.

We now come to the question of the validity and effect of the trust created in the share of Mrs. Shrigley, considered apart from the previous provisions of the will. We first find an absolute and present gift to this defendant, subject only to the previous life estates. This gift is followed by a direction that the share be paid to and held in trust by her brothers “ to apply the same and such parts thereof as they may deem proper to the separate use of their sister.” It is contended that this limitation imposed on the gift to Mrs. Shrigley is repugnant to the gift and, therefore, void. Such is our judgment. (2 Jarm. Wills, 854, 855.) The trust is not to apply the income of the share to the use of the legatee, but to apply the share itself or such parts thereof as the trustees may deem proper. Doubtless it would be the duty of the trustees to invest the fund and to apply the interest or income it might earn, together with the principal, to the use of the legatee. But the collection of income is a mere incident of the trust, and would not constitute the trust one to collect the income and profits and apply them to the use of a person, within the provisions of the Revised Statutes. The trust can cut down the previous gift only so far as it is consistent witn it, and that gift is absolute to the legatee with no gift over. The duration of the trust is by its nature limited to the life of Mrs. Shrigley, and, therefore, the trustees must either apply the whole share to her use during her lifetime, or at her death pay over theunexpended remainder to her estate. Her interest is, therefore, always alienable. The case seems to us entirely analogous to that of a vested legacy, where the time for payment is postponed. The rule is stated by Mr. Williams (Executors, 1256): 11 So, notwithstanding a legacy is directed to accumulate for a certain period, e. g. until the legatee attains the age of thirty, yet if he lias an absolute indefeasible interest in the legacy, he may require payment the moment he is competent, by reason of having attained twenty-one, to give a valid discharge.” In Josselyn v. Josselyn (9 Sim. 63) the testator gave his residuary estate unto his cousin, and ordered his executors to invest the same and pay the principal to the legatee on his attaining the age of twenty-four years. It was held that as the interest of the legatee was absolute he was entitled to the principal of his share when he became of the age of twenty-one years, notwithstanding the direction of the will to the contrary. (In Saunders v. Vautier (4 Beav. 115), and in Rocke v. Rocke (9 id. 66), exactly the same rule was held. In Matter of Young’s Settlement (18 Beav. 199) the testator gave his estate to trustees to dixdde between his two children wlien they arrived at the age of twenty-five, their several shares to vest at txventv-one, or upon marriage. He directed that bis daughter’s share should, on her marriage, be settled upon her, but that until marriage she should only receixre the income. The daughter after arriving at the age of twenty-one years remained unmarried. It xvas held that she was entitled to payment of the principal fund. As the absolute ownership of this share is in Mrs. Shrigley, and she has, therefore, an absolute poxver of disposition, she is also entitled to the immediate possession of the fund.

But if we have erred in our viexv of the character of this trust, it xvill, under the present law, make no difference in the result. The construction of the xvill most unfavorable to the claim of the defendant would be to regard the trust as one to invest the fund and apply the income arising therefrom to the use of Mrs. Shrigley during life, with poxver in the trustees, in their discretion, to apply the principal or parts thereof to the same purpose. There is no possible view of the case, hoxvever, which would defeat Mrs. Shrigley’s claim to the remainder in the fund after the termination of the trust. Since the enactment of the Revised Statutes, and until 1893, the income from such a trust was inalienable by the beneficiary, and the trustee could make no disposition of the trust estate in contravention of the trust. But by chapter 452 of the Laws of 1893, amending section 63 of article 2, title 2, chapter 1, part 2 of the Revised Statutes, in relation to uses and trusts (which was in force at the time of the testator’s death), the provisions of the Revised Statutes as to the inalienability of trust incomes and the integrity of trust estates were substantially altered. By that act any person beneficially interested in the income of a trust, who was also entitled to the remainder in the estate upon the termination of the trust, was empowered, by a deed to himself, to abrogate the trust and immediately acquire possession and absolute ownership of the property. The case of Mrs. Shrigley falls within this statute; so that if it be considered that the will created a trust to apply the income of the share held in trust to her use, she has the power to destroy the trust. Under either construction, therefore, she is entitled to possession of the fund.

Our view of the effect of the statute of 1893 is not in conflict with the decision in Oviatt v. Hopkins (20 App. Div. 168). In that case, the trust having been created before the enactment of the statute, it was held that the trust could not be abrogated by a conveyance from the i*emainderman to the equitable life tenant. The decision proceeded on the ground that property rights could not be destroyed by subsequent legislatiozz. We express zzo opizzion on the questiozi whether there is any property right, in the true sezise of the tezun, in a trustee, which precludes the State fz'orn permitting, by subsequent statute, the z*eal party in intez-est — the beneficiary — to abrogate the trust and take the pz-operty. Hez-e the law of 1893 was in force at the time of the testator’s death. The tenure of pz’operty, whether real or personal, and the character azid nature of the estates that may be created therein, have always been the subject of legislative aetiorz. The Legislatzire zniglzt forbid the creation of any trust estates in property, or the suspension of the power of alienation for any period whatever, as it has foz'bidden the suspension of the power-of alienation beyond two lives in being. At the time this will took effect it was the law of trusts to apply the income or rents and profits of a trust estate that a trust might be terminated in certain contingencies at the election and by the action of the cestui que trust. When the testator bequeathed his property upon trust, he could bequeath it only upon such a trust as the law permitted, and subject to such regulations and limitations as the Legislature had prescribed for such trusts.

There should be judgment in favor of the defendant Shrigley, that the executors pay to her one-fifth of the residuary estate of the testator, upon her executing a deed as prescribed in chapter 452 of the Laws of 1893, the costs of all parties to be paid out of the fund

All concurred.

Judgment for defendant ■ Shrigley on agreed statement of facts, that the executors pay to her one-fifth of the residuary estate of the deceased upon her executing a deed as prescribed in chapter 452 of the Laws of 1893, costs of all parties to be paid out of the fund.  