
    MONTIGNANI v. BLADE et al.
    (Supreme Court, General Term, Third Department.
    December 14, 1893.)
    1. Wills—Perpetuities.
    Testator bequeathed shares oí stock to B., to be held in trust for 10 years, and then to be delivered to B., or to his son W. if B. should be dead, or, if both should die before the 10 years expired, the shares were then to be transferred to a certain person, with successive limitations over in case such person should die before B. and W. Held, that the bequest did not violate the statute against perpetuities, since the power of alienation, though suspended for a definite period, could not be for a longer time than the lives of B. and W.
    2. Same—Restriction for Definite Period.
    A bequest which suspended the power of alienation for a definite period, not dependent on the expiration of two lives in being, is void, under the statute against perpetuities.
    8. Same—Trust.
    A devise to M. “for her own occupancy and use, to be held in trust by my executors seven years from and after my decease,” creates a trust in the property devised, and thereby suspends the power of alienation for the definite period of seven years, and is void.
    Appeal from circuit court, Albany county.
    Action by John F. Montignani, as administrator with the will annexed of Barnabas Staats, deceased, against Mary Y. Staats Blade and others, to maintain a construction of the will. From a judgment entered on a decision of the court, defendants appeal.
    Affirmed in part and reversed in part.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Robert G. Scherer, for appellant Willa F. C. Staats.
    Geo. H. Stevens, for appellant Mary Y. Blade.
    Allen McDonald, (Eugene D. Flannigan, of counsel,) for Barnabas E. Staats.
    Geo. H. Mallory, for respondent.
   MAYHAM, P. J.

This action was tried by the learned judge principally upon agreed facts stipulated by the counsel for.the respective parties, and the main contention on this appeal arises out of the determination of the trial court upon the second, third, fourth, and fifth disposing clauses of the testator’s will. If that determination is correct, then there is little or no difficulty in the administrator’s administering the estate under the will and law as laid down by the learned trial judge. Each of these disposing clauses, except the fifth, suspended the alienation of the property in them devised and bequeathed for a period of years, not depending upon the continuance of two lives in being, and each assumed to create a trust to continue during the period of such suspension. The trial judge held that such suspension was illegal, and the property •so sought to be devised and bequeathed was not, by said clauses in the will, disposed of by it, and that the same lapsed and reverted into, and became a part of, the estate of the deceased. It is insisted by the counsel for the appellant Barnabas E. Staats that the bequest to him in the second disposing clause oí the will, of the stock in the ‘Wells, Fargo & Company Express,” is not subject to the objection that it is subject to an illegal trust created in the will, and that the vesting or alienation of the same is not, by that clause, suspended for more than two lives in being. That clause reads as follows:

“I hereby bequeath and give to my son Barnabas E. Staats all my shares of stock in the Wells, Fargo & Company Express, to be held in trust by my executors ten years from and after my decease, then to be delivered and transferred to him. If deceased, do and continue the same to his son William, now in his eighth year of age. The dividends shall be collected, when and as declared, by my executors, until transferred and delivered & paid to my son, or, if deceased, to his son William. If both are deceased before the ten years have expired, then transfer and deliver the said shares to my daughter Lydia Anna Staats and Mary Yates Staats, each share and portion equal. If either daughter is deceased, her portion shall be transferred and delivered to the remaining daughter. If both are deceased, then this bequest shall be given to my daughter-in-law, wife of my son John H. Staats, or their heirs, and my daughter-in-law Harriet Staats, or her heirs, each share and portion equal.”

This language, though somewhat inartificial and obscure, does not extend the period of the suspension of alienation beyond the life of testator’s son Barnabas and grandson William. If both of these lives expire before the limitation of 10 years fixed for vesting in one of them “have expired, then transfer and deliver said shares to my daughter Lydia Anna Staats and Mary Yates Staats, each share and portion' equal.” The clause then provides for the vesting at that time of this stock, if any of the persons first named are dead. There can be little doubt but that this clause limits the suspension to the time of the death of Barnabas and his son William, if both die before the expiration of the 10 years. It will be observed that this disposing clause is independent of any other, and its execution does not impair any other rights under the will, except as it may diminish the residuum óf the testator’s estate. Was this provision of the will an illegal suspension of the power of alienation, or an illegal accumulation of the income of the stock? In Dodge v. Pond, 23 N. Y. 69, it was held that:

“A testator, without violating any law, may not only suspend the absolute ownership of his estate during the continuation of any two lives in being at his death, but may dispose of the income annually as it accrues during this period of suspension. He may also give vested legacies, and provide for their payment at a future period.”

The court also held, in that case, that it is no violation of the statute against accumulations for a testator, after rendering his estate inalienable for two lives, to give a pecuniary legacy payable at a future period, in such a manner as to show that he intended that they should be paid exclusively from income as it accrued,; leaving the corpus of the estate to pass unimpaired to the residuary legatee.

In Schermerhorn v. Cotting, 331 N. Y. 58, 29 N. E. 980, Peckham, J., in discussing a question similar to the one raised on this clause, uses this language:

“A limitation of a trust estate for an arbitrary period of time, such as fifty years, is valid, provided a termination at an earlier period is called for by the expiration of two lives in being at the time of the creation of the trust. If provision is made for such termination, the income of the estate may in the mean time be divided among any number of successive lives.”

Applying the principle of these decisions to the provisions of the second disposing clause in the will under consideration, it cannot be held void for. an alleged suspension of the vesting of this stock, or of the suspension of the power of alienation. We must therefore hold that, the conclusion of the learned judge upon this disposing clause in the will was erroneous, and the clause must therefore be upheld as a valid disposition of these stocks. This is upon our construction of the clause that the trust estate terminates with the death of the two lives in being at the time of the creation of the estate, if they die within the 10 years. If they, or either of them, are still living at the end of the 10 years, then the estate vests in Barnabas, if alive; if dead, then In William, if alive; and, if both die within the 10 years, then, immediately on the happening of that event, it vests in such of the other persons as may be, under the will, entitled to it, even though the 10-year limit has not expired. This construction we believe to be in harmony with the intention of the testator, and not in violation of any rule of law. Nor do we believe that the limitations over, after the death of Barnabas and his son within 10 years, too remote to enable them to take in the order of their survivorship, as designated in the will. On the happening of such event the title would devolve on the person entitled to take eo instante.

We think the third disposing clause comes clearly within the prohibition of the statute, as it is limited only by a definite period of time, not dependent upon the expiration of two lives in being, and is, within the provisions of the statute, absolutely void. Upon this clause we are urged by the learned counsel for the beneficiaries to follow what is claimed to be the manifest intention of the testator, and uphold the bequest. But we are not at liberty to violate the plain language of the statute, and the well-authenticated and authoritative adjudications to uphold the intention of the testator. In Underwood v. Curtis, 127 N. Y. 523, 28 N. E. 585, it is held that a provision by which the possession of personal property, and the legal estate therein, are vested in a trustee during the continuance of the trust, the absolute ownership of such property is suspended, and the validity of the trust—the duration of such suspension—must be limited to two lives in being, and not to a term of years, however short. Smith v. Edwards, 23 Hun, 223.

As to the fourth disposing clause in said will, the learned counsel for Mary Staats (now Mary Staats Blade) insists that the devise of the real estate therein made is absolute, and that no trust is created, in fact, as to the same. The language of that provision is as follows:

“I hereby bequeath to my daughter Mary Yates Staats the house and lot No. 52 Elm street, now occupied by myself, also all the furniture and housekeeping articles and utensils therein, for her own occupancy and use, to be held in trust by my executors seven years from and after my decease. I also bequeath to said daughter all my shares of stock in the New York Central & Hudson River Railroad Company. The dividends, when declared, shall be collected by my executors, and paid to said daughter. At the expiration of the seven years the foregoing bequests shall be transferred and delivered to said Mary Yates Staats as and when so requested by her, and practicable. If this daughter is deceased before the expiration of the seven years, these bequests shall be delivered to or disposed of as my daughter Lydia Anna Staats and my son John J. Staats shall request and direct. The proceeds shall be paid to my daughter Lydia Anna Staats and my daughter-in-law Willa F. C. Staats, and my daughter-in-law Harriet Staats, each share and portion alike, as near as can be done, and satisfactory to all concerned.”

By this provision it is contended that no valid trust was created as to the real estate. The testator named in his will two persons as executors; and, while it appears that the persons named did not qualify, it is also true that, if a valid trust was created, it would not fail for want of a trustee, as the court would appoint one. We must therefore look at the provision under consideration to ascertain whether a trust was created. The language is:

“I hereby bequeath to my daughter Mary Yates Staats the house at No. 52 Elm street, now occupied by myself, also all the furniture and housekeeping articles * * * therein, for her own occupancy and use, to be held in trust by my executors seven years from and after my decease.”

It is quite clear that, but for the concluding paragraph of the above-quoted provisions of the clause, this daughter would have taken a fee in this real estate. But the court, in attempting to give effect to this provision, must read and give effect to all of its parts, and is not at liberty to expunge that part in which the testator attempts to create a trust. If he has failed in that attempt, we may give effect to the balance of the provisions of the clause. But has he failed? He names his executors as trustees. He gave them an estate for seven years, and names the final beneficiaries. This is all that is required to create a trust. Greene v. Greene, 125 N. Y. 510, 26 N. E. 739. In that case, however, it was held that no trust was created, for the reason that the legal and trust estate were sought to be given to the same persons, and that the legal estate dominated and merged the trust estate, and no trust was therefore created. But in the case at bar the trustee and beneficiary are not identical, and the estate is sought to be suspended for seven years, and at the end of that period was to vest in Mary, if living, and, if not, in some other person. Clearly, by the provisions of that clause, the power of alienation was suspended for seven years. Suppose we assume that it was not, and that Mary was vested with the title on the death of the testator, and that, acting upon that assumption, she, during the seven years, should assume to alien or mortgage this real estate, and die before the expiration of the seven years. If this clause is upheld, would not Lydia Anna Staats be in a position to claim a devolution of this property to her, and thus defeat the conveyance made by Mary? We see no aspect of this provision of the will in which we can hold that there is not an illegal suspension of the power of alienation, and the vesting of the estate, real and personal, sought to be devised and bequeathed by this clause in the will, and must concur with the trial judge in holding it void. It is quite clear that the word “bequeath,” as used in this clause, as applied to both “real” and “personal,” is used without regard to their technical signification; but that could not defeat the manifest intention of the testator, had there been no illegal suspension of vesting or alienation of the property sought to be passed under the will.

We have carefully read the case, and examined the very elaborate brief furnished by the respondent and all of the appellants, and fully concur in all the conclusions of fact or law of the learned trial judge, except as to the second disposing clause in the will of the testator. The decree should be reversed, so far as it declares the bequests in that provision void, and in all other respects affirmed, with costs out of the estate to the appellant Barnabas E. Staats, and as to all the other parties the appeals be dismissed, and the decree affirmed, without costs to either party, as against the other. All concur.  