
    Jennings v. Jennings.
    
      Illegal suspension of power of alienation.
    
    
      A trust created by will, which may have the effect of suspending the power of alienation during more than two lives in being, at the death of the testator, is illegal and void.
    This doctrine applied to a devise for the maintenance and education of four infants, with a direction for the accumulation of the surplus, and a division of the fund, as the cestuis que trust should successively become of age.
    Jennings o. Jennings, 5 Sandf. 174, affirmed.
    Appeal from the general term of the Superior Court of the city of New York, where a judgment for the plaintiff, upon demurrer to the answer, had been affirmed. (Reported below, 5 Sandf. 174.)
    This was an ejectment to recover possession of one undivided sixth part of certain lots of ground, in the city of New York, which the plaintiff, Ann Jennings, claimed as one of the heirs-at-law of her father, Joseph Jennings, who died seised thereof, in May 1850. The defendant, Mary Ann Jennings, the widow of Joseph Jennings, claimed title under the will of her deceased husband.
    The defendant set forth the will in her answer to the complaint; to which the plaintiff demurred. The clause of the will which gave rise to the question litigated in this suit was as follows :
    “ I give and bequeath unto my daughters, Elizabeth Linard and Ann Jennings, my children by a former wife, to each one dollar (only). I will, that all the income of my estates, real and personal, be applied, after the payment of my just debts, to the maintenance and clothing of my said wife, and the maintenance, clothing and education of my children by her, now born, or such as may be born in due time after my * 548 1 ^ecease" *And the surplus of such income to J be laid up by her for, these my children by her, on interest, invested in the purchase of United States stocks, in her name as trustee to these my children. And as soon as the eldest surviving child by my present wife becomes of the age of twenty-one years, the whole of the property to be fairly appraised and valued, and his or her equal share of the property apportioned, and, if required, paid to him or her. And in like manner, the same course to be pursued in respect to the rest of my surviving children by her,” &c.
    The will further provided, that after the last of these children by his present wife should arrive at twenty-one years of age, his said wife should take possession of his property in Swedesborough, New Jersey, for her own use, during her life, or widowhood, and after her decease, or her interest should cease, this property was to become the joint property of the surviving children.
    The court below, at special term, gave judgment for the plaintiff upon the demurrer, holding that there was an illegal suspension of the power of alienation; and this judgment having been affirmed at general term, the defendant appealed to this court.
    
      Cook, for the appellant.
    
      Rodman, for the respondent.
   Gbidley, J.,

after stating the facts of the case, and the provisions of the will, proceeded: — The scheme of the will is, therefore, this: that the income of the testator’s estates, real and personal, after the payment of his just debts, should be applied to the clothing and maintenance of his wife, and the clothing, maintenance and education of his children by her, and the surplus was to be invested by the wife, as trustee for the children. The property was all to be kept together, undivided, until the eldest surviving child, by his present wife, should become twenty-one years old, and then to be appraised, and his or her equal share apportioned, and paid, if required.

Now, the objection to this scheme is, that, by the will, the absolute power of alienation is suspended for a longer period than two lives in being, and, therefore, the will contravenes the loth section of the article of the revised statutes entitled, “ Of the creation and division of estates” (1 R. S. 723, § 15), and is, therefore, void. This very question was decided in Hawley v. James (16 Wend. 61). It was held by Judge Bbonson, in that case, and his ruling has been followed by the courts since, that “the power of alienation cannot be suspended for a longer period than during the continuance of two lives in being at the *creation of _ ^ the estate; and every limitation by which the “ power of alienation may be suspended for a longer period, is void in its creation. The lives must be designated, either by naming the persons in particular, or by limiting the estate on the two first lives that shall fall, in a class of several individuals.”

By this rule, it will be seen, that the power of alienation was suspended, in the case at bar, or, which is the same thing, might be suspended, during three lives. Suppose, the three eldest of the four children, living at the testator’s death, should die, and the remaining child should, after their death, arrive at the age of twenty-one years, it is clear, that by the terms of the will the estate must be kept together, and the power of alienation must be suspended, during three lives. The same doctrine has been decided in Kane v. Gott (7 Paige 521), and the same, case in the court of errors (24 Wend. 564), and in Boynton v. Hoyt (1 Den. 53), and in several cases arising in the superior court of the city of New York. This view of the case is conclusive against the appellant.

But the estate-is not to be divided at the majority of the eldest child. The residue is still to be kept, together and undivided, for the maintenance and education of the rest, until the last of the children shall arrive at the age of twenty-one years; so that the power of alienation is suspended as to all but the portion of each successive child who arrives at twenty-one years of age, until the last shall reach that age. The consequence is, that the judgment must be affirmed.

Judgment affirmed. 
      
       See Stevenson v. Lesley, 70 N. Y. 512.
     