
    James C. Fargo and Others, as Executors, etc., of William G. Fargo, Deceased, Respondents, v. Herbert G. G. Squiers and Edward R. Bacon, as Executors and Trustees under the Last Will and Testament of Georgia Fargo, Deceased, and Others, Appellants; Anna E. Fargo and Mary C. Fargo, Respondents, Impleaded with Others.
    
      Legacy — when not vested—execution of a power of appointment.
    
    Courts, when construing a will, are required to carry into effect the intention of a testatrix as far as possible, but the intention must be collected from the will itself.
    The leading inquiry, which determines the question whether or not a legacy vests, is directed to the point whether the gift is immediate while the time of payment or of enjoyment only is postponed, or whether the gift is future, and dependent upon the happening of some contingency.
    If futurity is annexed to the substance of the gift the vesting is suspended, but if futurity appears to relate merely to the time of payment, the legacy vests at once in the beneficiary at the death of the testator, nor will vesting be prevented by the fact that the will also creates a trust.
    In an action brought to procure a construction of the will of Georgia Fargo, which attempted to exercise a power of appointment given to her by the will of her father, William G. Fargo, it appeared that Georgia Fargo, by her will, stated her intention to execute the power of appointment given her, and then proceeded to bequeath the property to her executors in trust, directing them to divide the same into four equal parts and hold one in trust for each of the four children of her sister Mrs. Squiers. The testatrix directed that the whole income should be accumulated until the beneficiaries reached majority, or until the death of any beneficiary if he died before reaching majority; that after reaching majority, and until he arrived at the age of twenty-five years, he was to receive the income, and at twenty-five years half of the principal; that after he arrived at the age of twenty-five years, and until he reached the age of thirty years, he was to receive the income, and at the latter age the rest of the principal. The testatrix further provided that in case any of the beneficiaries died before reaching the age of thirty years the fund should be paid to their issue, if any, and if there was no issue it should be paid to the persons appointed by the will of the beneficiary, if any, and if there was no issue and no appointee, payment should be made to the brothers and sisters of the beneficiary, if any; and if there was no issue, no appointee and no brothers or sisters, then the fund should pass to two nieces of the testatrix. It further appeared that the wall of William G. Fargo effected an equitable conversion of the property in question into personal property, and that the four children of Mrs. Squiers were born after the death of William G. Fargo.
    
      
      Held, that as no estate could be given or limited to any person, in execution of a power, which such person would not be capable of taking under the instrument creating the power, the suspension during the lives or parts of the lives of the Squiers children! was invalid, as such children were not in being at the death of William G-. Fargo.
    That it could not be said, in order to effectuate the testatrix’s intention to exercise the power of appointment, that the legacies to the Squiers children vested absolutely at her death ;
    That, while it was the intention of the testatrix to provide principally for the Squiers children, it appeared from the provisions of the will that this was not her sole intention;
    That the provisions as to the course which the property should take, if any of the beneficiaries died before arriving at the age of thirty years, indicated that the testatrix intended to suspend the vesting of absolute title to the property until the children should reach the age of twenty-five years, and again until they reached the age of thirty years, upon the conditions stated, and that it was the intention of the testatrix that, if the children died before these periods, the property should be disposed of, not as belonging to them, but as the property of-the testatrix, passing under her own will-
    Appeal by the defendants, Herbert G. G. Squiers and Edward R. Bacon, as executors and trustees, etc., of Georgia Fargo, deceased, and others, from a judgment of the Supreme Court in favor of the plaintiffs and the defendants Anna E. Fargo and Mary C. Fargo, entered in the office of the clerk of the county of Hew York on the 21st day of April, 1896, upon the decision of the court rendered after a trial at the Hew York Special Term.
    The action was brought by the plaintiffs, as executors and trustees under the will of William G. Fargo, to procure a construction of the will of Georgia Fargo, which attempted to exercise a power of appointment given her under the will of William G. Fargo, and a judicial determination as to the validity of the attempted exercise of such power.
    The provision of the will of William G. Fargo creating the power of appointment was, in brief, as follows;
    . “ Upon the death of my said daughter, the principal sum so held in trust for her, under this provision of my last will and testament, shall he paid and distributed by my executors, as she shall, by her last will and testament, direct. But if my said daughter shall die intestate, then, if she leave issue her surviving, the said principal sum shall be at once distributed to such issue.
    
      “ If my said daughter shall die intestate, leaving no issue her surviving, then my executors shall distribute, except as hereinafter provided, the said principal sum to my heirs at law then living,” etc.
    By the will of the daughter, Georgia Fargo, she stated her intention to direct the payment and distribution, by the executors of her father’s will, of the sum held in trust for her under such will, and to execute each and every power of appointment vested in her by such will, and then provided in substance:
    
      “ Thirteenth. All the rest and residue of my estate, of every kind and nature whatsoever, including that of which I have the power of appointment under the will of my father and any legacy which may lapse or fail, I give and bequeath to my Executors, in trust, however, for the -following purposes: To divide the same into four equal parts and to hold one of said parts for the use and benefit of Gladys Fargo Squiers ; another of said parts for the use and benefit of William George Fargo Squiers; another of said parts for the use and benefit of Georgia Fargo Squiers; and another of said parts for the use. and benefit of Helen Fargo Squiers; In Trust
    “ (a) To accumulate the income, issues, rents and profits derived from each such share until the beneficiary shall have attained the age of twenty-one years, or in case of his or her death prior to attaining such majority, until such death; such accumulation to belong absolutely to each beneficiary, and to be paid over to the beneficiary on his or her attaining his or her majority, or to his or her estate in case of his or her death prior to attaining such majority, free from any trust whatsoever.
    “ (5) After the beneficiary has attained the age of twenty-one, and until he of she attains the age of twenty-five, the said shares to be held in trust, the rents, issues and profits to he paid over annually to such beneficiary, and on his or her attaining the age of twenty-five, one-half of such share to be paid over to him or her absolutely.
    “ (e) After he or she attains the age of twenty-five and until he or she attains the age of thirty, the rents, issues and profits of the remaining one-half to be paid over .to such beneficiary, annually, and on his or her attaining the age of thirty years, the said remaining half to be paid over to him or her absolutely.
    “ Fourteenth. If the beneficiary shall die before having attained the age of thirty years, leaving issue him or her surviving, such share or such part of such share as shall be held at the time of his or her decease in trust for him or her, is to be paid to such surviving issue, share and share alike, absolutely, and free from any trust.
    •“ Fifteenth. In case of the beneficiary departing this life before having attained the age of thirty years, leaving no issue him or her surviving, such share or such part of such share as shall be held at the time of his or her decease in trust for him or her-shall be paid to such person or persons as he or she, by his or her last will and testament or any other instrument in writing, may appoint, absolutely and free from any trust.
    “ Sixteenth. If such beneficiary shall die leaving no issue him or her surviving, and having made no appointment as provided for in Paragraph Fifteenth of this will, his or her share or such part thereof as shall be held in trust for him or her, at the time of his or her decease, is to be paid to such of his or her brothers or sisters as may survive him or her, share and share alike, absolutely and free from any trust.
    
      “Seventeenth. In case of the death of such beneficiary before attaining the age of thirty years, leaving no issue, brother or sister, him or her surviving, and without having made an appointment as provided for in Section Fifteen of this Will, his or her share, or such part of the share as shall be held in Trust at the time of his or hev death, is to be paid .in equal shares to my nieces, Mary and Ann Fargo absolutely and free from any trust.”
    The four Squiers children, who are the children of the testatrix’s sister, were born after the death of William G. Fargo.
    The court decided that this attempted exercise of the power' of appointment was invalid, teoavise the will of William, G. Fargo •effected an equitable conversion of the. estate, mostly realty, into -personal property, which estate was, therefore, to be treated as personal property, and that
    1. The legacies to the Squiers children did not vest in them at the death of Georgia Fargo.
    2. Under her will the legal title to the property was vested in the executors as trustees, and the absolute ownership thereof was suspended until the beneficiaries arrived at the age of thirty (30) years.
    It is claimed by the appellants that the legacies to the Squiers -children did vest in them at the death of Georgia Fargo; that no trust estate therein was created, and that the directions for the accumulation of income and the limitations over may he held void without invalidating the attempted execution of the power.
    
      John G. MiCburn and William D. Guthrie, for the appellants,
    
      Edward E. Tanner and Lewis O. Ledyard, for the respondents.
   Williams, J.:

It is provided by the statute (1 R. S. 773, § 1) that “ The absolute ownership of personal property shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance, and until the termination of not more than two lives in being at the date of the instrument containing such limitation or condition, or if such instrument be a will, for not more than two lives in being, at the death of the testator.” And (by 1 R. S. 737, § 129) that, “Ho estate or interest can be given or limited to any person by an instrument in execution of a power which such person would not have been capable of taking under the instrument by which the power was granted.”

It is not disputed but that the will of William G. Fargo effected an equitable conversion of the property in question into personal property, and that for the purposes of this case it must be regarded as personal property.

The disposition of the property under the will of Georgia Fargo was an attempted execution of the power created under and by the will of William G. Fargo. The validity of the attempted execution of the power must, therefore, be tested, under the statute, by reading the provisions of the will of Georgia Fargo, relating to the property, into the will of William G. Fargo. The absolute ownership of the property under the statute could not be suspended longer than during lives in being at death of William G. Fargo. It could not be suspended during the life of the Squiers children, or any part of such lives, because those children had not been born when William G. Fargo died. In order, therefore, that this attempted execution by Georgia Fargo of the power . created by the will of William G. Fargo, should be determined to be valid, it must be held that the absolute ownership' of the property vested in the Squiers children at the death of Georgia Fargo.

There can be no doubt of the intention of Georgia Fargo to execute the power created by her father’s will. She. expressly so stated in her will. Her language was, “ intending hereby * * to direct the payment and distribution * * * of the sum held in- trust for me, under the provisions of * * * such last will * * * hereby executing each and every power of appointment vested in me by said will,” etc., etc.

Neither would there seem to be any doubt that her intent was mainly to provide for the four Squiers children, because she provided that the property should be divided into four equal parts, one of which should be held for the use and benefit of each .of those children, and then she provided that the whole income accumulated before the beneficiaries should become twenty-one (21) years of age, or their deaths, if prior to that time, should belong absolutely to the beneficiaries, and should be paid to them or their estates free from any trust, and that the whole income accumulated, while the beneficiaries were between the ages of twenty-one (21) and twenty-five (25) years, should be paid to the beneficiaries annually; that one-half of the fund itself should be paid to the beneficiaries absolutely at the age of twenty-five (25) years; that the whole income from the - balance accumulated, while the beneficiaries were between the ages of twenty-five (25) and thirty (30) years should be paid to the beneficiaries -annually, and that the remaining one-half of the fund, itself should be paid to the beneficiaries absolutely at the age of thirty years. If this will contained -only these provisions, it might well be said that the whole scheme of .the testatrix was to provide for these four children, and that the intention of the will was to vest the title in the children at her death and merely to postpone, payment or enjoyment thereof to a subsequent time.

The principle of law applicable to this question was well stated by Denio, Oh. J., in Everitt v. Everitt, (29 N. Y. 39, 75, 77), viz.: “ The leading inquiry upon which the question of vesting or not vesting turns, is whether the gift is immediate and the time of payment or of enjoyment only postponed, or is future and contingent, depending upon the beneficiary arriving of age or surviving some other person, or the like. futurity is annexed to the substance of the gift, the vesting is suspended, but if it appear to relate to the time of payment only, the legacy vests instanter.” And in this condition of things, the fact that a trust was also created by the will would not prevent the vesting of the title in the beneficiaries at the death of the testatrix. (Vanderpoel v. Loew, 112 N. Y. 167-181.) But there were other provisions in this will connected with this trust and with the final disposition of the property. The testatrix provided that in case of the death of the beneficiaries before arriving at the age of thirty years, the fund should thereupon be paid to their issue, if any; if no issue, then to the persons appointed by their wills, if any; if there were no issue and no appointees, then to brothers and sisters of beneficiaries, if any; and if no issue, no appointees, and no brothers or sisters, then to the two nieces of the testatrix named in the will.

These provisions expressly negative the idea that the whole scheme of this will was to provide for these four Squiers children, and that the intention was to vest title absolutely in them at the time' of the testatrix’s death, and show that the intention was to withhold the title from the children and to vest the same in the trustees until the children should arrive at the age of twenty-five (25) and thirty (30) years; that in case of their death before the times specified the property should not be disposed of as the property of the children, but under the particular provisions of her own will, which disposition would be entirely different from that which might be made if the property were the absolute property of the children and was distributed in case of intestacy or passed under their wills.

If this construction is to be given to this will of Georgia Fargo, then it cannot be sustained as a valid execution of the power created by the will of William G. Fargo. It is true that courts, in construing wills, are -required to carry into effect the intention of a testator so far as possible, but the statute also requires such intention to be collected from the will itself. (1 R. S. 748, § 2.)

And where the intention is plainly deducible from the will, the court has no power to disregard that intention in the construction of the instrument. The court cannot make a new will for a testator under a pretended construction of the one made by such testator. We cannot here, in view of the plain language and design of this will, hold that the whole scheme of this execution of the power was to provide for the Squiers children, and that the testatrix had no design to withhold the absolute title to the fund and to dispose of it herself in the event of these children dying before they became twenty-live or thirty years of age. . The contrary design is clearly apparent from a mere reading of the provisions of the attempted execution of the power. There are many cases in the books where the courts have struggled hard to save wills from the provisions of the statute, and by cutting out some provisions, clearly invalid, to give effect to the intention of the testator, and they have sometimes succeeded. Many of these cases are cited and commented upon and distinguished by counsel upon this appeal. We do not regard it as necessary, however, to go through these cases or discuss them here. It seems to us that this case is to be determined by the application of the principles of law and a consideration of the facts already referred, to, and we rest our decision upon the fact that the intent of the testatrix, as indicated by the language of the will, was to suspend the vesting of the absolute title to the property until the Squiers children should arrive at the age of twenty-five and thirty years respectively, that is, as to one-half of each child’s share, until he should arrive at the age of twenty-five years, and as to the other one-half, until he should arrive at the age of thirty years.

This was a violation of the statute which rendered the execution of the power invalid.

The judgment appealed from should be affirmed, -with costs.

Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.

Judgment affirmed, with costs.  