
    (89 Hun, 552.)
    BURNS et al. v. ALLEN et al.
    (Supreme Court, General Term, Fifth Department.
    October 16, 1895.)
    1. Wills—Legacies—Charging on Land.
    An intent to charge on land a pecuniary legacy which is not, by the terms of the will, made such charge, cannot be inferred from the evidence that after testator’s death (four months after the will was made) the personal estate was not sufficient to pay debts and legacies, but it must appear that at the date of the will the personal estate was so clearly insufficient to pay the legacies that the testator must have then known that their payment could not be made without the aid of the real estate.
    2. Same—Trusts.
    Testator devised real estate to B. for life, and in case of his death to B.’s wife, as long as she should remain a widow, and directed that at the end of the life tenancy such real estate should be held in trust for certain persons, or the survivor of them. Held, that there was not an unlawful suspension of the power of alienation, as the life estate of B. was not cut down by the declaration of a naked trust.
    8. Same—Suspension of Power of Alienation.
    Testator, by the seventh clause of his will, devised the residue of his estate to his daughter; giving his executors power of sale, and providing that the income should be used in the education and support of his daughter. By the eighth clause he directed that, if his daughter should die without issue, the trust estate should be divided equally between his nephews. By the ninth clause he directed that, if his daughter should leave children, the trust estate should be held in trust for them until the youngest became 21 years old, when the estate should be divided equally between them, and that in case none of them reached the age of 21 the remainder of the estate should be divided between testator’s nephews. Held, that there was not an unlawful suspension of the power of alienation, so as to invalidate the seventh clause of the will, as the provisions of the ninth clause are not so united with those of the seventh clause as to render its execution dependent on the validity of the ninth clause.
    Appeal from special term, Chautauqua county.
    Action by Edward C. Burns, individually, and Edward C. Burns and Walter S. Harsha, as executors of the will of Charlotte 0. Black, deceased, against Augustus F. Allen and another, to obtain a judicial construction of the will of plaintiffs’ testatrix. From the judgment construing such will, Augustus F. Allen and Alfred D. Allen appeal. Affirmed.
    The purpose of the action was to obtain judicial construction of the will of the plaintiffs’ testatrix, and the controversy has relation to the first, fourth, seventh, eighth, and ninth clauses of the will, which are as follows: “First. After all my lawful debts are paid and discharged, I give and bequeath to my nephews, Augustus F. Allen and Alfred D. Allen, the sum of one thousand dollars each ($1,000); said sum to be expended upon their education, and for no other purpose whatever. In case either or both of said nephews should die before the above-mentioned sum or sums are expended as directed above, I direct that the sum or sums be given to Isabella S. Burns, daughter of Edward G. Burns.” “Fourth. I give and bequeath to Edward 0. Burns, for the term of his natural life, and in case of his death to Mary G. Burns, as long as she shall remain a widow, the use of my house and lot, on the corner of Fifth and Spring streets, in the city of Jamestown, New York, together with the use of my household furniture. On the completion of the life tenancy as above, I direct the aforesaid house and lot and household furniture to be held in trust for my adopted daughter, Melita Black, and Isabella S. Burns, or the survivor of them.” “Seventh. I give to my executor or executors hereinafter named all my interest in the wheat farm of the Brown Bros, and Preston Company, Blanchard, Trail county, Dakota; my land in Lansing, Michigan; fifty-five (55) and one-half acres of land in Dexterville, or East Jamestown; the ‘homestead,’ subject to the conditions of the preceding clause. All of said enumerated property, together with the rest, residue, and remainder of my estate, of every kind whatsoever, to be held in trust for my adopted" daughter, Melita Black, giving to my said executor or executors full power to sell any or all of said real estate or corporate interest at public or private sale, at such time and upon such terms as they may deem best, in the peaceful execution of their trust, and to give good and sufficient deeds for the same. The income arising from said trust estate, or so much thereof as may be necessary, to be used in the education and support of Melita. Directing and authorizing my said executor or executors, however, from said trust estate, to provide a sufficient sum to afford Isabella S. Burns like educational advantages as are afforded to Melita. Should the income of said trust estate be insufficient to carry out the provisions of this clause, then so much of the principal may be used as may be necessary for that purpose. Should Melita marry without the full consent of Edward 0. and Mary G. Burns, then only so much of the income arising from said trust estate be paid her as shall be absolutely necessary for her support. Eighth. Should Melita die without leaving issue, I direct that the aforesaid trust estate be divided equally between my nephews, Augustus E. Allen and Alfred D. Allen, and Isabella S. Burns, or the survivors of them. Ninth. Should Melita have children surviving her, I direct that the said estate be held in trust for said child or children until the youngest of said children reaches the age of twenty-one years. The estate then to be divided equally between such children; and, in case none of said children reaches the age of twenty-one years, the remainder of said estate to be divided as provided in the preceding clause.” The trial court determined that the legacies mentioned in the first clause were not a charge upon any of the real estate left by the testatrix; that by the fourth clause the estate in remainder was devised to Melita Black and Isabella S. Burns as tenants in common, or to the survivor of them; that by the provisions of the seventh clause a valid trust was created; and that in the event mentioned in the eighth clause the persons there mentioned, or the survivors or survivor of them, will take the estate there referred to.
    Argued before LEWIS, BRADLEY, WARD, and DAVY, J J.
    A. 0. Wade and Noah Davis, for appellants.
    Robert G. Shaw and George Barker, for respondents Melita Black and Isabella S. Burns.
    Stillman F. Kneeland, for other respondents.
   BRADLEY, J.

The legacies bequeathed to the appellants are not expressly charged upon the real estate of which the testatrix died seised, by any provision of the will, nor does it furnish any implication of her intent to that effect. In re City of Rochester, 110 N. Y. 159, 17 N. E. 740; Brill v. Wright, 112 N. Y. 129, 19 N. E. 628; Morris v. Sickly, 133 N. Y. 456, 31 N. E. 332. But it is urged that extrinsic circumstances appearing by the evidence required the conclusion that the intention of the testatrix was that those legacies should be a charge upon the realty. If that contention is supported, they are entitled to that advantage. McCorn v. McCorn, 100 N. Y. 511, 3 N. E. 480; Briggs v. Carroll, 117 N. Y. 288, 22 N. E. 1054. The appellants were nephews of the testatrix, and at the time of her death they were her only heirs and next of kin. Her will was made in September, 1886, and she died in January, following. The intention in that respect, so far as it is to be ascertained by extrinsic facts, is dependent upon the circumstances as they existed and appeared at the time her will was made; and, to thus establish the charge of the legacies upon the real estate, it must clearly appear that the intent of the testatrix to make them so was manifested. Such intention may be inferred where it appears that the personal estate of the testator at the date of his will is largely and clearly insufficient to pay the legacies, and that the testator must have then kno vn and understood that their payment could not be made without the aid of the real estate. In Briggs v. Carroll, it was said in the opinion of the court, delivered by Judge Finch, that “the deficiency must exist when the will is executed, and be so great and so obvious as to preclude any possible inference that the testator did not realize it, or that he may have expected and intended, before his death, to remove the difficulty.” In the present case the only evidence relating to the personal estate of the testatrix is in the testimony of the person who is an executor of the will, that “there was not enough personal property of the testatrix to pay her debts, to the best of my belief.” This statement was made in reference to the personal estate after the death of the testatrix, and in view of the debts as they then existed. There is no evidence of the nature of her personal estate at the time the will was made, nor of the extent or value of it, other than such inference as is derivable from that before mentioned. This is not sufficient to fairly require the conclusion that there was an obvious deficiency of personal property four months before her death to pay the legacies, in view of her debts as they then existed. It therefore does not appear to have been the intention of the testatrix to make those legacies a charge upon the real estate.,

In the view taken of the fourth clause of the will, the contention that by its provisions the power of alienation of the real estate, and the absolute ownership of the personal property therein mentioned, are unlawfully suspended, is not sustained. The purpose of the testatrix evidently was that Edward G. Burns, during his life, and Mary G. Burns, if she survived him, so long as she remained his widow, should have the use of the property. And the limitation over was to the use of Melita Black and Isabella S. Burns, without the creation of any trust by that clause of the will. If the use were restricted to the income, it may be that the executors, although not named in that connection, might be treated as the trustees, without the expression of any devise to them, and a trust be deemed created, within the statute. 1 Rev. St. p. 729, § 55. But the provisions in that clause, giving Melita and Isabella the beneficial enjoyment of the remainder of the estate in that property without intervention of any recognized trust in another, gave to them the estate in remainder, not cut down by the declaration of a mere passive or naked trust. Id. pp. 727, 728, §§ 47, 49. And such must be deemed the legal effect of the devise to them, unless there is elsewhere in the will some qualification of the provisions in that respect of the fourth clause. Rawson v. Lampman, 5 N. Y. 456; Bank v. Holden, 105 N. Y. 415, 11 N. E. 950; Greene v. Greene, 125 N. Y. 506, 26 N. E. 739. The disposition of this property by the provisions of the fourth clause, as relates to the beneficiaries there mentioned, seems to be independent of the other provisions of the will. And therefore the suspension of alienation of the estate therein referred to terminates with the tenancies of Burns and his wife. The trial court determined that the devise of the remainder to Melita Black and Isabella S. Burns, or to the survivor of them, is to take effect as of the time of the termination of the prior estates. If it were necessarily here, the question whether or not the estates in remainder vested in the persons last named at the time of the death of the testatrix would be worthy of some consideration. The general rule of construction is that an estate in remainder is vested, rather than contingent, unless ..something appears in the instrument to indicate that the intent of the donor was otherwise. Moore v. Lyons, 25 Wend. 119; Livingston v. Greene, 52 N. Y. 118; Kelly v. Kelly, 61 N. Y. 47; In re Mahan, 98 N. Y. 372; Nelson v. Russell, 135 N. Y. 137, 31 N. E. 1008; Jennings v Barry, 5 Dem. Sur. 531.

By the seventh clause the executors take the property there referred to in trust for Melita Black, and, in execution of it, are to apply the income of that estate, or so much of it as may be necessary, to her education and support. They, are also directed to use sufficient of the income to give Isabella S. Burns like educational advantages, and if the income is not sufficient they are to appropriate so much ■of the corpus of the fund to these objects as may be necessary for such purposes. To this, standing alone, there can be no objection going to its validity. The eighth clause follows, giving direction for the ultimate disposition of this trust estate in the event that Melita Black dies without issue. Thus far there is no illegal suspension of alienation or ownership of the estate. But it is urged that the seventh and eighth clauses are rendered invalid by the provisions of the ninth clause, which is to the effect that, if Melita leaves children surviving her, the estate is to be held in trust until the youngest of them arrives at the age of 21 years, when it is to be divided between them. There might be some force in this contention, if the provisions of the seventh clause were dependent upon those of the ninth clause. Rice v. Barrett, 102 N. Y. 161, 6 N. E. 898. But they are not. The provisions of the seventh clause created the trust, and, for the purpose of its execution as there provided, they are complete, and independent of those which follow. While the devolution of the estate in the events mentioned was within the scheme which the testatrix had in view when she made the several provisions of her will, those of the seventh and ninth clauses are not in such relation, or so united, as to render the execution of the former, in any sense, dependent upon the validity of the latter. Savage v. Burnham, 17 N. Y. 561; Kennedy v. Hoy, 105 N. Y. 134, 11 N. E. 390.

The question of the validity of the ninth clause had no consideration of the trial court, and none is necessary to the result on this review. The judgment should be affirmed, with costs of this appeal to the respondents, payable out of the estate. All concur.  