
    Union Trust Company of New York, as Executor of and Trustee under the Last Will and Testament of Andrew Jeffries Garvey, Deceased, Respondent, v. John Owen and Others, Appellants, Impleaded with New York Press Club, Respondent, and St. Luke’s Hospital and Others, Defendants.
    
      A construction which makes an instrument valid preferred to one which makes it invalid.
    
    Where an instrument is capable of two constructions, one of which will render it valid and the other invalid, the court will adopt the former construction in preference to the latter.
    Appeal by the defendants, John Owen and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of May, 1902, denying said defendant’s motion to amend the judgment theretofore entered in the action.
    
      
      James M. Gifford, for the appellants.
    
      Hoffman Miller, for the plaintiff, respondent.
    
      Charles MoÁtland Beattie, for the respondent, New York Press Club.
   Per Curiam :

"We are of the opinion that the order appealed from should be affirmed. When the agreement is read and considered as a whole it is clear that the parties to it intended that there should be a distribution of the fund referred to at and immediately following the death •of Mrs. Garvey, and the income on this fund, which was directed to be paid to the Owens, was only to be paid during her life. This construction not only gives effect-to the provision of the agreement which directs a distribution upon Mrs. Garvey’s death, but it also makes the agreement a legal one, while the construction contended for by the appellants would make it illegal, inasmuch as it unlawfully suspends the power of alienation. This must have been so held by the referee, otherwise he would not have reached the conclusion that the agreement was a valid one. The general rule is that where an instrument is subject to two constructions, one of which would make it valid and the other invalid, the court will adopt the former in preference to the latter. (Post v. Hover, 33 N. Y. 593; Greene v. Greene, 125 id. 512; Locke v. F. L. & T. Co., 140 id. 149; Roe v. Vingut, 117 id. 204.)

The order appealed from is affirmed, with ten dollars costs and disbursements.

Present—Yak Brunt, P. J., Patterson, O’Brien, McLaughlin and Laughlin, JJ.

Order affirmed, with- ten dollars costs and disbursements.  