
    In the Matter of the Application of the Mayor, etc., of New York, to Compel an Accounting by Alfred L. Simonson et al., as Executors, etc., of Samuel Wood, deceased.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 2, 1889.
    
    ~Wills—Suspension of power of alienation.
    Testator devised the residue of his property to his three executors in trust to create, endow and maintain an institution to he incorporated. The will also provided that in case said charter of incorporation should not he obtained within the life of the longest liver of the executors, said residue was given, devised and bequeathed to the mayor, etc., of New York, in their corporate capacity, to be strictly devoted to the charitable uses declared in the will. Held, that as the intention was clear that the mayor, etc., should receive nothing until the death of the last of the executors, there was an unlawful suspension of the power of alienation which attached to the gift, and that the mayor, etc., of New York were not persons interested in the estate within Code Civ. Pro., §§ 2726, 2727.
    Appeal by the mayor, aldermen and commonalty of the city ■of Mew York from an order of the surrogate’s court, denying an application to compel the executors of the last will and testament ■of Samuel Wood, deceased, to account, under the provisions of §§ 2726, and 2727 of the Code of Civil Procedure.
    
      B. E. Valentine, for app’lts; Edward Schenck, for the executors, resp’ts.
   Bartlett, J.

The appellants failed in their application because in the opinion of the learned surrogate they were not persons interested in the estate or fund in the hands of the executors within the meaning of the Code; and the only question presented by this appeal is whether that view is correct We think it is. The claim of the city to any interest in the estate of the testator rests upon the second subdivision of the seventh article of the will, which seeks to establish a trust in three executors for purposes which are thus stated:

“ To create, endow and forever maintain an institution in the city of New York, to be called ‘ The Samuel Wood Benevolent Institute,’ and to vest in said institute all of my property and estate not otherwise disposed of, and for the use and purposes thereof as the same are hereinafter declared; and to the end that the said ' The Samuel Wood Benevolent Institute ’ may, by the laws of this state, be capable of taking and holding real estate and other gifts and donations to its use, I hereby direct and order my executors, as soon as may be after my decease, to apply to the legislature of this state for an act of incorporation incorporating the said ‘ The Samuel Wood Benevolent Institute ’ with power to take and hold real estate for the purposes of said institute, and to prosecute said application until a charter shall be obtained conformably to this my will, and to be governed as hereinafter provided ; and in case said charter shall not be obtained within the life of the longest liver of my executors, I give, devise and bequeath the said rest, residue and remainder of my estate, real and personal, to the mayor, aldermen and commonalty of the city of New York, in their corporate capacity, to be strictly devoted by the city of New York to the charitable uses in this my will declared.”

The primary gift for the establishment of the Samuel Wood Benevolent Institute, changed by the codicil to a college of music, was invalid. So far as the real estate was concerned, the power of alienation was suspended for more than two lives. So far as the personal property was concerned, the absolute ownership was suspended for more than two lives. In neither case was the-period of suspension limited by two lives in being, but, on the-contrary, the testator contemplated that it might last through the lives of his three executors. But notwithstanding that the-primary gift must be deemed void, the learned counsel for the appellants insists that -the substituted gift to the city of ¡New York is good; and he refers to Cruikshank v. Home for the Friendless, 113 N. Y., 337; 22 N. Y. State Rep., 738, as a case in which a somewhat similar primary devise was adjudged void, while the alternative and substituted gifts were upheld. But in that case-the- testator plainly intended that the gifts over should take effect at once if the prior disposition of his property for the benefit of a non-existent corporation was invalid in law.

In the will now under consideration, however, the language upon which the substituted gift is dependent manifests a clear intention that the mayor, aldermen and commonalty of the city of ¡New York shall receive nothing until the death of the last of the-testator’s three executors. “ In case said charter shall not be obtained within the life of the longest liver of my executors,” is the-phraseology. The suspension of the absolute ownership and power of alienation is thus attached to the substituted gift itself, and operates to invalidate it equally with the primary-devise. The lurking doubt of the validity of the prior trust which influenced the testator in the case of Cruikshank v. Home for the Friendless, see opinion qf Finch, J., 113 N. Y., 350 ; 22 N. Y. State Rep., 739, does not appear to have existed in the mind of Mr. Wood. He contemplated possible and probable delay in the formation of such a corporation as he desired to have organized, but no legal objection to the testamentary disposition he-attempted to make. He distinctly postponed his gift over to the-city-of New York until the expiration of three lives in being, and hence rendered ineffectual the only portion of his will under which the city could assert any interest to compel his executors to-account.

The order of the surrogate should be affirmed, with costs.

Yan Brunt, P. J., concurs.  