
    Joseph Liebmann, as Sole Surviving Acting Executor and Trustee Under the Last Will and Testament of Joseph Liebmann, Deceased, Plaintiff, v. Henry Leopold Liebmann et al., Defendants.
    (Supreme Court, New York Special Term,
    March, 1907.)
    Wills—Interpretation and construction: General rules—Subordination of language to intent; Designations and descriptions of property, funds, etc.— Particular terms of doubtful meaning — Corporate stock as including interest in mortgage.
    Suspension of power of alienation — Validity of particular future estates— Suspension within the limitation. •
    Where the intention of a testator appears clear, but his plan and definite purposes are endangered by inapt and Incorrect modes of expression, the court should subordinate the language to the intention; and to get at the correct meaning it may reject words or limitations, supply or transpose them.
    
      About two weeks after the execution of his will testator died, owning 149 shares of corporate stock in a brewery of the par value of $1,000 each, and left him surviving his widow, who died ten years thereafter, a son and four married daughters. The will directed that as to twenty-one shares the son should receive the net income thereof during the life of the widow and that as to the remaining shares she should receive the income thereof during her life; that after her decease forty-five of the shares should go to the son absolutely and that the trustee should continue to hold the remaining shares in trust for ten years from “ my decease ” but in no event beyond the lifetime of the son, and “during the said period” the income on twenty-six shares should be paid to each of his daughters or in the event of their death to their lawful issue. The will further provided that the son should have the right, at or within one year after the expiration of “ said ten years,” to purchase the entire amount of stock set apart for the benefit of testator’s daughters at par value. It further provided that, if the son should fail to exercise the option within one year after the expiration of the ten-year period, the stock set apart for the daughters should “belong to and be delivered to each of them at the expiration of said period of eleven years or upon the decease of my son, absolutely and as their own property, without any restriction whatever.” Held, that the plain purpose of the testator was to give his widow during life all the income except what was to go to the son, and for ten years after her death to give the daughters or their issue the income on twenty-six shares each, and that the 104 shares might then be transferred at par to the son who would, in the meanwhile and subsequently to his mother’s death, absolutely own forty-five shares in his own right; and that, as said provisions were inconsistent and conflicting only on the assumption that the testator meant “ my decease ” and not “ her decease,” all ambiguities would be eliminated and effect given to the design of the testator by substituting “ her ” for “ my and that the son’s option could not be exercised until ten years after his mother’s death.
    It appearing that, previous to the incorporation of the brewing company, the parties conducted the same business as copartners and a bond and mortgage of $150,000 was given in part payment for the transfer to the corporation of the copartnership property it was clear that the testator regarded his interest in said bond and mortgage as a mere incident to his stock; that they were inseparable, and that his disposition thereof was intended to embrace a pro rata interest in his one-half of the bond and mortgage.
    There being but two lives specified, the lives of the mother and son, during which the absolute ownership of the property was suspended, the Statute against Perpetuities had not been offended.
    
      Action for the construction of a will and codicil.
    Eugene G. Kremer, for plaintiff.
    Samuel Hoff, for defendants Furst.
    Mandelbaum Bros., for guardian ad litem.
    
    Guggenheimer, Untermyer & Marshall, for defendant Liebmann.
   O’Gorman, J.

Action for the construction of the will and codicil of Joseph Liebmann, deceased. The testator died on April 5, 1895, about two weeks after the execution of the will and codicil. He was fifty-six years of age at the time of his death. He was survived by his widow, then in her sixty-second year, his son, Henry, twenty-three years old, and four daughters, all of whom, excepting an incompetent, were married. The widow died on October 22, 1904, about ten years after her husband’s decease. At the time of the execution of the will the corporation of Obermeyer & Liebmann, brewers, had outstanding 300 shares of stock of the par value of $1,000 each. Of these 149 shares belonged to the testator, 149 shares were held by the Obermeyer family, and two shares, representing the balance of power, were held in trust. As to 21 of the 149 shares owned by the testator the will provided that his son should have the income thereof during the life of his mother; that as to the remainder of the shares (128) the mother should receive the income during her life; that upon her death the son was to receive absolutely the 21 shares above referred to and 24 additional shares, so that he should then be possessed of 45 shares, being approximately thirty per cent, of the entire interest of the testator in the corporation of Obermeyer & Liebmann, which constituted the bulle of testator’s estate. As to the remaining 104 shares the will confers an option upon the son to purchase the same at par at the expiration of ten years. Whether this period runs from the death of testator or from the death of his wife is the principal question to be determined in this action. The stock is valuable and earns to income from twenty to thirty per cent, annually. The question arises under paragraph 8 of the will, which reads as follows: “ Eighth. I give and bequeath unto my said executors and trustees or to such of them as shall qualify, the survivors and last survivor of them, all of the shares of stock which shall be owned by me in my individual right at the time of my decease in the corporation of Obermeyer & Liebmann.’ In trust, however, to collect and receive the income and dividends therefrom, and to pay over the same as to twenty-one shares of said stock to my' son, Henry Leopold Liebmann, during the lifetime of my wife, Eanny Liebmann, and to pay over the dividend and income from the remaining of said shares of stock to my wife, Fanny Liebmann, during the term of her natural life, and after her decease to deliver said twenty-one shares of stock to my said son, Henry Leopold Liebmann, to have and to hold the same absolutely and without restriction, and as to the remaining of said shares of stock to continue to hold the same for the period of ten years from the time of my decease, but in no event beyond the lifetime of my said son, Henry Leopold Liebmann, and during the said period to pay over the dividends and income on twenty-six shares of said stock to each of my daughters Betty Furst, Clara Bosenfeld, Sarah Cohn and Lilly Gutman. If any of them shall die before the expiration of the said period of ten years, and prior to the decease of my said son, Henry Leopold Liebmann, and before receiving the shares hereinbefore set apart for her benefit, the shares of the one so dying shall go to her issue in equal shares; and if there shall be no issue, to the survivors or survivor of all my children, in equal shares, excepting my daughter Martha. This bequest of said shares of stock for the benefit of my daughters is made expressly subject to and upon the condition that my said son, Henry Leopold Liebmann, shall have the right at or after the expiration of the said ten years, during which term the said stock shall be held in trust, but in no event beyond the lifetime of my said son, to purchase the entire amount of stock so set apart for the benefit of my daughters at the par value thereof. But in the event that he shall fail to exercise the said right within one year after the expiration of said ten years the said shares of stock so set apart for my said daughters shall belong to and be delivered to each of them at the expiration of said period of eleven years or upon the decease of my said son, absolutely and as their own property, without any restriction whatsoever. And in the event that any of said daughters, excepting my daughter Martha, shall die before the decease of my said son, and before the expiration of the said eleven-year period, and prior to the exercise of the right to purchase herein given to my said son, leaving lawful issue her surviving, the dividends and income from the shares of stock so held for the benefit of the daughter so dying shall be paid and applied by my said executors and trustees to the support, maintenance and education of the child or children of such deceased daughter or daughters. The bequest of the said shares of stock of the said corporation made to my said executors and trustees is upon the further trust that they shall, after the death of my wife, in addition -to the twenty-one shares of stock hereinabove given to my said son, Henry Leopold Liebmann, deliver to and T hereby give and bequeath unto my said son, Henry Leopold, . or to his issue, in equal shares, in the event of his death before receiving the same, twenty-four shares of said stock, so that my said son, Henry Leopold, shall have and receive in all forty-five shares of the said stock as his own property absolutely. And if he shall die leaving no lawful issue that the said forty-five shares of stock shall be equally divided between all of my surviving children excepting my daughter Martha. In the event that I shall, prior to my decease, transfer to my said son, Henry Leopold, any of my shares of stock of said corporation, the number of shares so transferred by me to him shall be deducted from the said forty-five shares of stock which it is my intention he shall receive. If I should become the owner of any shares of stock of said corporation in addition to those hereinabove bequeathed I give and bequeath such additional shares to the same persons and in the same proportions as is above provided as to the disposition of the shares of stock owned by me at the time of the making of this my will. I direct that for the purpose of ascertaining the income or dividends upon the whole or any part of the said shares of stock all moneys drawn as salary by any one or more persons representing my holdings of said stock in said corporation or as interest upon my shares of said one hundred and fifty thousand dollars mortgage, shall be regarded as profits and shall be paid over as income or dividends upon said stock, under the terms of this my will.” It is apparent that if the1 expression “ my decease ” is held to correctly express the intention of the testator, it is difficult if not impossible to reconcile many of the testamentary provisions. It will be observed that the testator first directs that as to twenty-one shares the son shall receive the income thereof during the life of his widow, and that as to the remaining one hundred and twenty-eight shares the widow shall receive the income thereof during her life; that after her decease the twenty-one shares and twenty-four additional shares shall pass to the son absolutely, and as to the remaining shares the trustees shall continue to hold the same in trust for ten years from “ my decease,” but in no event beyond the lifetime of the son, and “ during the said period ” the income on twenty-six shares shall be paid to each of his daughters, or in the event of their death to their lawful issue. This clearly imposes an impossibility upon the trustees, as it requires them to pay the same income to the widow for life, and to the daughters during the said period ” of ten years from the testator’s death. The testator further provides that the son shall have the right at or within one year after the expiration of the “said ten years” to purchase the entire amount of stock so set apart for the benefit of his daughters at the par value thereof. The widow lived nine and one-half years after the testator. If she had survived the ten-year period and the son had exercised his option, then the estate of the widow would be cut off and that of the daughters destroyed. There is a further provision that if the son fail to exercise the option within one year after the expiration of the ten-year period the stock set apart for his daughters shall belong to and be delivered to each of them at the expiration of eleven years or upon the decease of my son, absolutely and as their own property, without any restriction whatever.” Under .this provision, if the son died during the period of ten years from the testator’s death, or, if alive, failed to exercise his option before the expiration of eleven years, the stock would go to the daughters absolutely, with the right of immediate possession, although the testator previously directed that the trustees - should hold the same in trust to receive the income, and except as to the twenty-one shares to pay the same to his wife during her life. All of these provisions and others to which reference might be made are inconsistent and conflicting only on the assumption that the testator meant “ my decease ” and not “ her decease ” in the paragraph of the will above quoted. By substituting “ her ” for “ my ” so that the instrument will read “ for the period of ten years from the time of her decease,” all the ambiguities are eliminated and effect is given to what, from the entire instrument, appears to be the design of the testator. His purpose, plainly evinced, was to give to his widow during her life all the income except the income on twenty-one shares, which was to go to the son; that for a period of ten years after her death the daughters or their issue were to receive the income on twenty-six shares each, and that at the end of this ten-year period the one hundred and four shares were to be transferred at par to the son, who, in the meanwhile and subsequent to his mother’s death, would absolutely own forty-five shares in his own right. To hold otherwise would be to practically disinherit the daughters, and there is no reason to believe that the testator intended to do so. If the strict construction urged on behalf of the son were adopted it would result in almost wholly depriving the daughters of the testator or their issue of any share in the large earning capacity of the business in which the testator had a half interest. For nine and one-half years the mother and son received the entire income. For a few months thereafter the daughters or their issue shared in the profits, whereupon the son attempted to terminate their enjoyment of the income by asserting his claim to the one hundred and four shares at par. Where, upon examination of a will taken as a whole, the intention of the testator appears clear, but its plan and definite purposes are endangered by inapt or incorrect modes of expression, the court may and it is its duty to subordinate the language to the intention. It may reject words or limitations, supply or transpose them to get at the corree: meaning Phillips v. Davies, 92 N. Y. 190; Horton v. Gantwell, 108 id. 255; Roe v. Vingut, 117 id. 201. It is evident from the context of the will that the wrong word has been used, and that the real intention of the testator will be defeated unless “ her ” be substituted for “ my.” To prevent such a result and to effectuate the testamentary design, the provision under consideration should read: “ To hold the same for the period of ten years from the time of her decease.” I conclude, therefore, that the limitation set forth in the eighth paragraph of the will is based on the death of the widow and not on the death of the testator. It follows that the son’s option cannot be exercised until ten years after his mother’s death, notwithstanding the employment of inapt language in reference to the $150,000 bond and mortgage in which the testator had a half interest, there is no room to doubt his intention as gathered from the entire will and codicil. Previous to the incorporation of Obermeyer & Liebmann the parties conducted the same business as copartners, and this bond and mortgage was given to them in part payment for the transfer of copartnership property to the corporation, which they organized and all the stock of which they held. It is clear that the testator regarded his interest in the bond and mortgage as a mere incident of his stock; that they were inseparable, and that his disposition of the shares of stock was intended to embrace their pro rata interest in his half of the bond and mortgage. The Statute against Perpetuities has not been offended. There are but two lives specified—the mother and the son — during which the absolute ownership of the property is suspended, and where the trust term is well limited the income may be given to any number of beneficiaries or cestuis que trustent, whether persons in esse or not in esse. The lives may be any lives, whether those of beneficiaries or not. Crooke v. County of Kings, 97 N. YT. 421; Bailey v. Bailey, 97 id. 460. Judgment accordingly.  