
    Matter of the Judicial Settlement of the Account of The Brooklyn Trust Co., as Executor of the Last Will and Testament of Hannah Toner, Deceased.
    
      (Surrogate’s Court, Kings County,
    
    
      Filed February, 1901.)
    Trust in Personalty — Reservation of Remainder.
    A woman created a trust in personalty for lier own benefit, made it revocable by either party thereto after six months, made the corpus payable to herself after revocation, and it was stipulated that if she died during the trust, the corpus should be “ disposed of ” according to her last will. More than two years later she died without having revoked the trust and devised her residuary estate to her executor in trust to pay the income to her daughter for life, and thereafter to grandchildren until the youngest survivor of them had reached majority, when, if her daughter were dead, all the residuary estate was to be divided among them.
    
      
      Held, that she had absolutely reserved to herself the remainder in the trust which she created for her own benefit, and that title to the remainder passed by the will as her own property to her executor, as trustee, for at least the period of the life of her daughter.
    Proceedings upon tbe judicial settlement of tbe account of an executor.
    Bergen & Dykman, for executor; Jones & Titcomb, for petitioner; Tbomas H. Troy, special guardian.
   Abbott, S.—

On January 4, 1897, Hannab Toner entered into an agreement witb tbe Brooklyn Trust Co., whereby sbe agreed to deposit witb Tbe Brooklyn Trust Co. tbe sum of $6,000, to be bold in trust by tbe party of tbe second part (Tbe Brooklyn Trust Co.) for tbe sole use and benefit of Mrs. Toner. Tbe said Trust agreed to invest tbe said sum in securities specified, and pay to Mrs. Toner on tbe first days of May and November in each year tbe net income from said investments. If Mrs. Toner should die during tbe continuance of tbe trust, tbe trust estate and all accumulations shall be disposed of according to tbe last will and testament of ” Mrs. Toner. Tbe Brooklyn Trust Co. agreed to accept tbe trust and at tbe termination of tbe trust to pay over to tbe party of tbe first part (Mrs. Toner) tbe sum held in trust by it and all accumulation of interest thereof. . . . Tbe trust estate hereby created shall continue for a period of six months from this date, after which time it shall be revocable by either party.” Tbe $6,000 referred to in tbe agreement was paid to tbe Brooklyn Trust Co., and afterwards, on March 5, 1898, a further sum of $4,000 to be held in accordance witb tbe provisions of tbe trust agreement.” Tbe Brooklyn Trust Co. retained this fund of $10,000 under tbe terms of tbe trust agreement until after tbe death of Mrs. Toner, which occurred on April 18, 1899, after which date tbe fund was paid by tbe Trust Co. to the executor of her will. The will was admitted to probate and letters testamentary issued to the Brooklyn Trust Oo. as such executor. The entire estate consisted of personal property. The testatrix bequeathed her residuary estate unto her executor in trust to invest the same and pay the interest and income therefrom to her daughter, Augusta M. Smith, during the term of her natural life.

After the death of her daughter, she directed her executor and trustee to pay the, said interest and income to her grandchildren, Augusta L. Smith, Florence Smith and Susanna Estelle Smith, for their support and maintenance “ until the youngest survivor thereof shall arrive at the age of twenty-one years, in the following proportions, viz., One part thereof to Augusta L. Smith, two parts thereof to Elorence Smith, and one part thereof to Susanna Estelle Smith. . . . "When the youngest survivor of my said grandchildren shall arrive at the age of twenty-one years, if after the death of my said daughter, Augusta M. Smith, then I direct my said executor and trustee to distribute among and pay to my said grandchildren all of my said property in the following proportions, namely ”: specifying the proportions above set farth.

In case the youngest survivor of my said grandchildren ” should be of the age of twenty-one years or more at the death of testatrix’s daughter, she directed her executor and trustee to distribute and pay over to her grandchildren all of her said property in the proportions named.

In case any of her grandchildren should die before “ becoming vested with, or entitled to any of my property under this will, then the share to which she would have been entitled shall go to the survivor or survivors in the same relative proportions as stated in the preceding paragraph of this will.”

The will then contains a provision over in the event of the decease of all the testatrix’s grandchildren, before the youngest survivor of them shall arrive at the age of twenty-one years.” The codicil of the will has no bearing upon the questions under consideration.

While it is true that the Brooklyn Trust Co. was vested with the title to the trust fund, it was only vested with such title as was necessary for the purposes of the trusts established by the trust agreement. The term of such trust agreement was to be:

1. Eor a period of six months from the date of the agreement, January 4, 1897.

2. For a further period of time dependent upon the joint will of the parties to the agreement, and revocable at any time by either party.

3. If Mrs.. Toner should die during the continuance of the trust, the trust estate and all accumulations shall be disposed of according to the last will and testament of the party of the first part.”

4'. At the termination of the trust, if terminated by revocation, the Trust Co. was “to pay over to the party of the first part, the sum held in trust by it and all accumulations of interest thereof.”

The extreme period of time during which the trust was to continue, was during the life of the creator of the trust. At any time during her life after July 4, 1897, the trust was revocable, but if it continued during the extreme period specified in- the trust instrument, i. e., during the life of Mrs. Toner, then, upon the termination of the trust by the death of Mrs. Toner, the trust estate and all accumulations were to be disposed of according to the last will and testament of the party of the first part.” Suppose this provision had been entirely omitted from the trust instrument. There can be no doubt whatever, that the remainder in the trust estate, after the termination of theh trust period fixed by the agreement, would have remained vested in the testatrix, and would unquestionably have passed under her last will and testament as a part of tbe property and estate owned by ber in her own right. In such case the estate of the trustee would have terminated -with the life of the testatrix, and the trustee would have had no title or interests whatever in the remainder. The title to the remainder not having been disposed of by the trust agreement ■would have remained vested in the creator of the trust, Mrs. Toner.

The natural and reasonable construction of the words the trust estate and all accumulations shall be disposed of according to the last will and testament of tire party of the first part,” is, that they were a mere declaration of the reservation by Mrs. Toner of the ownership of the remainder of the fund upon the termination of the trust by her death. This language was not intended to, and did not vest Mrs. Toner with a mere power of appointment of a trust fund by her last will and testament. Matter of Ogsbury, 7 App. Div. 71.

But even so, it is unquestionably the fact that the will of Mrs. Toner would have operated, so far as its mere form is concerned, as an appointment which would satisfy the provisions of the trust agreement. New York Life Ins. & Trust Co. v. Livingston, 133 N. Y. 125.

It is contended in behalf of the contestant, however, that if the trust fund passed by virtue of an appointment under the powers contained in the trust agreement, the title to this fund was acquired, not by virtue of the provisions of the will, but by virtue of the provisions of the trust agreement, and that the disposition so made violates the provisions of the statute against the suspension of absolute ownership of personal property beyond two lives in being at the time of the creation of the trust. Even assuming this contention to be sound, and that the creator of the $10,000 trust has attempted to suspend the absolute ownership of this fund beyond the statutory period, viz.: her own life, the life of her daughter, Augusta M. Smith, and the life or lives, according to the construction which may be given to tbe subsequent clauses of tbe will, of tbe testatrix’s three grandchildren, still, I am of tbe opinion that tbe provision of tbe will in relation to tbe successive estates are not so closely connected and allied, or so dependent tbe one upon tbe other, as to invalidate the two life estates first created, viz.: those, of tbe testatrix herself, and her daughter, Augusta M. Smith. . To this extent at least, tbe provisions; of tbe will are valid, and due force should be given to them in any event. Maitland v. Baldwin, 70 Hun, 267; Henderson v. Henderson, 113 N. Y. 1-15; Tiers v. Tiers, 98 id. 568.

One intention of tbe testatrix is perfectly clear, that her daughter should have tbe income of her estate during life and nothing more. To so much of tbe will effect may be lawfully given.

It follows, that for tbe purposes of tbe issue now before me, it is immaterial what construction shall be ultimately given, either to tbe trust agreement or to tbe provisions of tbe will, so far as concerns tbe remainder contingent upon tbe decease of Augusta M. Smith. Until tbe termination of her life, tbe title to tbe entire residuary estate, including tbe $10,000 trust fund, is vested in the trustee for tbe purpose specified in tbe will. It will be quite soon enough to determine tbe individuals who shall be entitled to the remainder on tbe death of Mrs. Smith, when that event occurs. It is unnecessary to determine that question at this time.

I am, therefore, of the opinion that tbe objections filed . should be overruled, and a decree made directing tbe payment of tbe entire residuary estate to tbe Brooklyn Trust Oo. as trustee during the life of Augusta M. Smith.

Let decree be presented accordingly on two days’ notice.

Decreed accordingly.  