
    Lawrence C. Hafner et al., as Executors, Etc., Plaintiffs, v. Rosana C. Hafner et al., Defendants.
    (Supreme Court, New York Special Term,
    February, 1901.)
    'Trust — Illegal provision for paying mortgages out of the rents and profits rejected in determining the time for distributing income — Validity of annuities — Rights of a grandchild who died before distribution — Illegal accumulation during minorities.
    A testator created a trust in all his property for the life of his daughter Rosana, gave out of the rents and profits an annuity to her and to his granddaughter Loretta until the mortgages on his real estate had been fully paid, gave an annuity for the support of the three infant children of his deceased son Eugene with directions to accumulate so much thereof as was not needed until the youngest of the children became of age and then to pay the accumulations and annuity equally to all, directed upon the death of Rosana that one part of the corpus should be distributed to her children, one part to the children of Eugene and one part to Loretta, provided, however, that if Loretta should be dead at the time of the division, leaving lawful issue, her share should go to her issue, but if she died without issue it should go to the children of Rosana and Eugene equally. Loretta died before the testator and left a son Francis who has since died. The testator also directed that after payment of the said annuities the surplus income should be devoted to paying the incumbrances upon his real estate and, further, he divided among the same beneficiaries any income remaining. He further directed distribution of the income after the mortgages had been paid.
    Held, that the direction to pay off the mortgages with the surplus income was void as an illegal accumulation.
    That, rejecting this direction, distribution of the income was to be had at once and that the annuities were valid until distribution, but ceased thereupon.
    That the administrator of Francis, deceased child of the deceased Loretta, was entitled only to so much of one-third of the income, his mother’s share, as accrued during the life of Francis, the other two-thirds passing to the presumptive owners of the next eventual estate.
    That Francis, having died before the termination of the trust, took no interest in the principal of his mother’s share.
    That the direction for accumulation during the minorities of the three children of Eugene, was void in so far as it was to endure during the majority of any of the beneficiaries, and that, consequently, so much of the fund as was thus accumulated passed to the infants themselves as the presumptive owners of the next eventual estate.
    Actios for construction, of will.
    Robt. A. B. Dayton, for plaintiffs.
    Howard 0. Tracy, for defendant Brandon.
    George E. Warren, Jr., for infant defendants.
   Bischoff, J.

The testator, by his will, created a trust whereby the corpus oí the estate was to be held during the lifetime of his daughter Rosana, and at her death to be distributed by division into three parts — one to Rosana’s children, one to the children of a deceased son, Eugene, and one to his granddaughter Loretta Donlon — the will providing, however, “if my said granddaughter 'Loretta Donlon should be deceased at the time of such division, leaving lawful issue, then I give, devise and bequeath the share herein devised and bequeathed to her, to such issue; but if she die without such issue, then I give and devise one-half of such share unto the children of my daughter Rosana, and the other half thereof I give and devise unto the children of my deceased son Eugene.”

Pending the termination of this trust, disposition of the income was to be made primarily in the form of stated annuities, the excess of income to be devoted to the discharge of incumbrances upon the real estate, and after that discharge the income over certain annuities was to be divided into three parts, of which one part was to be paid to Rosana, one to Loretta Donlon, and one to the three grandchildren, the issue of the deceased son Eugene.

Loretta Donlon predeceased the testator, leaving a son, her sole issue, living at the testator’s death, but since deceased.

By the force of the late decision of Hascall v. King, 162 N. Y. 134, the provision for the payment from the income of sums sufficient to discharge the incumbrances is unquestionably void, and this action is brought to obtain a construction of the will relative to the disposition of the income, and particularly as to that part of the income which was payable to Loretta Donlon.

The second paragraph of the will contains a direction to pay out of the income the sum of $1,000 annually to Loretta Donlon “until the aforesaid mortgages shall be fully paid and discharged,” and by the first paragraph an annuity of $1,500, with the same limitation, was made payable to the testator’s daughter Rosana.

By the sixth paragraph the distribution of the income was provided for “ after the aforesaid bonds and mortgages shall be fully paid and discharged,” and the question arises whether the annuities of Loretta and Rosanna were subject to any limitation in view of the invalidity of the scheme for the payment of the mortgages, and what that limitation, if any, is to be; or, on the •other hand, whether, since the provision for the payment of the mortgages falls, the annuities must fail altogether.

The language employed by the testator leaves no doubt that these annuities were to cease when thq income was distributed, after the discharge of the mortgages; this is the express limitation, and no other construction is reasonably to be reached, but since the provision, upon which the distribution of the income depended was wholly void, that distribution was to come to pass at once, if at all.

Eliminating the void provision for the payment of incumbrances, there is nothing to which this distribution is postponed, and it appears to be conceded at all hands that the scheme of distribution is to be carried out and does not fail because of its incidental connection with the void provision referred to. This view is in harmony with the authorities, and the result is that the sixth paragraph of the will took immediate effect, but with the ■taking effect of that paragraph, the annuities, which were given only in contemplation of its postponement, must be held to have ceased.

When this will was construed in Matter of Hafner, 45 App. Div. 549, the annuity to Loretta Donlon, and the rights of the infant Francis Brandon therein, were treated of without reference to the invalidity of the provision for an accumulation now before me, and the assumption being, necessarily, that the will was valid throughout, the conclusion then reached by the court, as to the existence of the annuity, cannot bear upon the present question.

The result is that the annuity of $1,000 can be made the subject of no claim by any party whether claiming through Loretta Donlon, or otherwise, and the rights of the defendant Brandon, as administrator or as heir-at-law of Francis Brandon (the child of Loretta, deceased), depend upon the construction of the sixth paragraph, relating to the distribution of the income.

The direction of this paragraph is that the executors pay one-third of the income to Loretta Donlon, and upon her death prior to the death of the testator, it resulted that the payment was to be made to her surviving child, Francis, as though he had been named in the will in her stead (Matter of Hafner, supra), and, therefore, the defendant Brandon, as administrator, is entitled to so much of one-third the income, under the general-provision for distribution, as accrued during the infant’s life.

As to the rest of this one-third share, however, the will cannot be construed as giving any interest to this defendant either as administrator or as heir-at-law of the child, for at best the provisions for the distribution are to be taken as upon a substitution of Francis Brandon for Loretta Donlon, and the income is payable to the beneficiary without any words which would show an intent that upon his death the right should survive to anyone claiming under him. A distinction appears to exist between such a case and one where a specific sum is made payable for a certain period by way of an annuity. In the latter instance, upon the death of the annuitant, his personal representative may take (Montanye v. Montanye, 29 App. Div. 379), but in the case of the distribution of a trust income, such as this, in the absence of the expression of a contrary intent, the interest of a beneficiary in that income ceases at his death and belongs to the presumptive owners of the next eventual estate. Manice v. Manice, 43 N. Y. 303, 386.

I have no doubt that the child of Loretta Donlon was excluded from an interest in the principal of the estate (the next eventual estate) unless living at the time when the trust terminated. The will clearly intends that the shares in the division upon the death of Rosana shall be determined according to the situation as itj shall exist at that time, with regard to the presence or absence of children of Loretta Donlon. There was no present vesting of an estate in remainder, and nothing to pass to the heir-at-law of her child whose death antedated the event upon which the division depended.

The remaining question of construction is raised by the guardian of the infants (children of Eugene) for whose benefit an annuity of $1,500' was provided under directions for the accumulation of so much thereof as was not needed for their education until the youngest should reach his majority, at which time the surplus was to be divided among all, and the annuity thereafter paid to each in equal shares.

This accumulation was in excess of the permission of the statute, so far as it was to endure during the majority of any of the beneficiaries (Hascall v. King, supra), and so much of the fund as was thus accumulated should be treated as the property of the infants, who, as the presumptive owners of the next eventual estate (that is in the annuity itself after their majority), are the persons to whom the accumulation, thus theoretically undisposed of, should belong. Manice v. Manice, 43 N. Y. 384, 385.

To the extent that payments have been made by the executors for the benefit of the estate, in accordance with the provision for the satisfaction of incumbrances, such payments should be allowed, so far as any personal liability of the executors is concerned, but, for the purposes of the proper ascertainment of the distributable income, payments made from the income under this invalid direction, should be made instead a charge against the principal account and the income account, so far, corrected.

Decree may be presented, together with form of decision on five days’ notice of settlement.

Ordered accordingly.  