
    Alfred Roe et al., Executors, Resp’ts, v. George T. Vingut,, Impl’d, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed November 26, 1889.)
    
    1. Will—Construction on—Trust—Two lives in being.
    Testatrix, by an elaborately worded clause in her will, gave her estate to executors in trust, to hold during the respective lives of her son-in-law and her youngest grandchild, naming them. The rents of her real estate after paying taxes, etc., were to be invested in productive real estate for the benefit of her grandchildren living at the time of her death, during their respective minorities, and for the benefit of such other grandchildren as may be born of her daughter after the death of testatrix, during their respective minorities, and on the arrival of her youngest grandchild at the age of twenty-one years, and the death of her son-in-law, she gave and devised to her grandchildren then living and their heirs all her real estate, but she also directed that as fast as the grandchildren came of age before the death of the son-in-law and youngest grandchild, the trustees were to pay over their proportionate share to them. Held, that the testatrix, in speaking of her youngest grandchild, referred to the one named, and the trust was a valid one, and did not extend further than two lives in being.
    2. Same.
    The "proportionate share of rents, etc.,” to be paid over to grandchildren coming of age during the lives of the son-in-law and grandchild named, included the accumulations from the rent of the original real estate of which testatrix died seized, although reinvested, and_ thus the accumulations were legally provided for up to the time of the division of the estate.
    3. Same.
    The devise of the real estate purchased after the death of testatrix must be understood to include only such real estate as shall have been purchased by the executors and in their possession after conveying the shares to the grandchildren as they came of age.
    
      
      4. Same—Words mat be charged.
    That the word and should he changed to or and grandchildren to grandchild in order to make the will conform to the evident intention of testatrix.
    5. Same—Power of sale.
    The trustees took no power of sale of the unimproved property
    Appeal from a judgment of the supreme court, first department, modifying a judgment rendered at special term construing the will of Elizabeth E. Floyd, deceased.
    
      Joseph H. Jones, for appl’t; John J. Macklin and Wm. C. Beecher, for resp’ts.
    
      
      Affirming 17 N. Y. State Rep., 123.
    
   Peckham, J.

This action was commenced by the plaintiffs, who are the executors of the will of Mrs. Elizabeth F. Floyd, deceased, and trustees under its provisions, to obtain a construction of that instrument.

At special term the court held that the trust provided for therein was valid and that it continued until the youngest grandchild named in the will arrived at age, or his death before that event, and until the death of George T. Yingut, and provision was made for the payment of the accumulations spoken of in the will. The general term affirmed the judgment entered upon this decision with a slight modification, by which it struck out the provision in that judgment permitting the trustees to sell the real estate which was unproductive, it being held that there was no such power of sale granted to the trustees. From the affirmance of the general term the defendants have appealed here.

Mrs. Floyd died in November, 1885, leaving the will in question. She was possessed of quite a large estate and she had but one child, a married daughter, the wife of the defendant George T. Vingut. The daughter was, when the will was made and when the testatrix died, the mother of five children, Benjamin Van Home Vingut being the youngest, and he was born December 23, 1879, and the will was made July 30, 1881. After the commencement of this action and before the entry of judgment therein, the daughter Mrs. Vingut died, leaving the five children surviving her. Her husband, one of the defendants, was appointed her administrator and the action was continued against him in such capacity as well as individually.

The questions to be determined here arise out of the provisions of the sixth clause in the will of Mrs. Floyd, which clause I have subdivided for convenience of description into seven subsections. The clause in question reads as follows:

(1.) Sixth. I give, devise and bequeath to my executors hereinafter named all real and mixed estate of which I may die seized or possessed, in trust, nevertheless, to have and to hold the same during the respective lives of my son-in-law George Thomas Vingut, and my youngest grand-child Benjamin Van Horne Vingut, now living, and to receive the rents, issues and profits thereof, and the accumulations arising therefrom; and after payment of all taxes, assessments, and of so much money as may be necessary for repairs, insurance or improvements or betterments of any or all of my real estate, to invest the balance remaining after such payments in productive real estate in the city of ¡New York, for the benefit of my grandchildren who may be living at the time of my death during their respective minorities, and the benefit of such other grandchildren as may be born of my daughter, Sarah Augusta Yingut, after my death, during their respective minorities.

(2.) To apply the said rents, issues and profits of said real estate to the use of my said grandchildren during their respective minorities, in such sum or sums as in the judgment of my executors hereinafter named may be sufficient for the education ,„and support of each or any of them during their respective minorities; but no payment shall be made unless my said executors shall be satisfied that there is not sufficient income from the estate of my said daughter, Sarah Augusta Vingut, for the support and education of my said grandchildren.

(8.) And on the arrival of my youngest grandchild at the age of twenty-one years, and on the death of my son-in-law, George Thomas Vingut, I give, devise and bequeath to my grandchildren who may then be living, and their heirs forever, all my real estate wheresoever situated of which I shall die seized, or which may be purchased by said executors after my death, as provided for in the sixth clause of this my will, share and share alike, as tenants in common and not as joint tenants, to have and to hold the same to the said grandchildren and their heirs forever.

(4.) In the event of the death of any of my said grandchildren leaving lawful issue him or her surviving, then the share of such deceased parent shall belong to and become vested in such lawful issue him or her surviving.

(5.) In the event of the death of any or either of my said grandchildren unmarried, then the share or shares of such grandchild or grandchildren so dying shall be equally divided, share and share alike, amongst my remaining grandchildren who may be living at the time of the death of such grandchild or grandchildren.

(6.) I direct and empower my executors, hereinafter named, as my said grandchildren shall respectively attain the age of twenty-one years, and my youngest grandchild and my son-in-law may still be living, to pay over to each grandchild as he or she may arrive at the age of twenty-one years a proportionate share of the rents, issues and profits of my estate during the lives of said grandchildren and son-in-law.

(7.) I hereby authorize and empower my executors, hereinafter named, to rent or lease any part of my said estate for such term or terms of years as in their judgment may seem proper.

The questions propounded are (1) whether the trust created by the sixth clause is valid; (2) if valid, when does the trust terminate ; (3) have the trustees an implied power of sale as to the unimproved real estate owned by Mrs. Floyd at the time of her death. Other questions were stated not necessary to be here mentioned.

As to the first question: The trust is claimed by.the defendant, ‘George T. Yingut, to be invalid on two grounds, (1) because of uncertainty and illegality as to the term of its duration, (2) because it is not a trust for any of the puiposes authorized by law.

The will is a most perplexing one. There are provisions in it which at first blush are so seemingly inconsistent and contradictory that it appears impossible to arrive at a meaning which can be said with any certainty to have been that of the testatrix. While the trusts are in the first subdivision of the sixth clause bounded by two lives in being at their creation, the language thereafter used is such that if construed without reference to other portions of the will the trust term is so far extended as to be void, for it is extended until the coming of age of the youngest grandchild, and such grand-child might be bom after the death of the testatrix. To adopt the theory of the administrator defendant as to the meaning of the will, and to say that it means to and does provide for an illegal extension of the trust term, is to do violence to some of the language of the will just as much as is done to some of the other language thereof when the trust is construed to be legal. In either event the strict language used in some portions of the instrument must give way for the purpose of arriving at the meaning of the testatrix based upon a perusal of the whole document. Upon such perusal, if a general scheme can be found to have been intended and provided for in the instrument, and such general scheme is consistent with the rules of law and so may be ■declared valid, it is the duty of courts to effectuate the main purpose of the testatrix; to accomplish such object the meaning of words and phrases used in some parts of the will must be diverted from that which would attach to them if standing alone, and they must be compared with other language used in other portions of the instrument and limitations must be implied and thus the general meaning of all the language must be arrived at.

It is very truly observed in the able opinion in this case delivered by the learned judge at general term that where it can be ■done without violence to the intention of the testator, that one of two possible constructions will be given to a clause which will sustain the intended devise rather than the one that will defeat it

The intention to create a trust for the benefit of the grandchildren of the testatrix, including those that might be born after her ■death, is plainly stated in the will. The draftsman would seem to have been familiar with the rule as to the utmost length of a valid trust term. Such a term is created in the first subdivision of the sixth clause. It is during the respective lives of the son-in-law of the testatrix and her “ youngest grandchild, Benjamin Van Horne Vingut, now living.” The daughter of the testatrix was a comparatively young married woman, and the testatrix knew the possibility, if not probability, of the daughter having other ■children, and perhaps after the death of the testatrix; and she undoubtedly had in her mind the benefit of all the children of her daughter, as well those who might thereafter be born, as those ■already in existence. Having created the trust for as long a time as she legally might, she proceeded to state for whose benefit it was created, and how it should be conducted, and to give instructions as to who should be the recipients of the corpus of the estate after the termination of the trust. The rents of her real estate, after paying taxes, etc., were to be invested in productive real estate for the benefit of her grandchildren living at the time of her death, during their respective minorities, and for the benefit of such other grandchildren as may be born of her daughter after the death of the testatrix, during their respective minorities, and on the arrival of her youngest grandchild, at the .age of twenryone years, and the death of her son-in-law, she gave and devised to her grandchildren who were then living, and their heirs, all her real estate, wheresoever situated, of which she died seized, or which should be purchased after her death, etc. Read by itself this portion of the will might be claimed to be unambiguous, and to mean that the trust estate is to continue during the minority of' the youngest grandchild who might be born of her daughter after the death of the testatrix. The first subdivision of the clause states that the trust is for the benefit, not alone of the living grandchildren, but also for those who might be bom after her death, and the third subdivision states that the estate is to be divided on the arrival of her youngest grandchild at twenty-one years of age, and the death of her son-in-law. The youngest, grandchild might be a grandchild bom after the death of the testatrix, and hence not in being at the creation of the trust. Bounding the trust term by such a life, the term would be in violation of the statute, and would be void. But if the testatrix, in speaking of her youngest grandchild, meant the youngest grandchild that she had already named and referred to as living, then the-trust term would be valid.

I think that she referred to the grandchild upon whose life-she had already fixed as one of the two which should limit the-trust term. The testatrix had all her grandchildren in view, without doubt, when she made this will, both born and to be born ; but it must be assumed, by reason of the fact that a valid trust term for as long a time as was possible is first created, that it was known to be impossible to create a valid term if it were to be limited upon a life not in being at its creation. Therefore, the scheme would seem to have been to create a trust term for the benefit of all her grandchildren, both born and to be born, for as long a time as it could be done, and then when such term should end the division must be made, although a grandchild, born after the death of the testatrix should then be under age.

If the provisions of the sixth clause, other than the first subdivision, are read in close connection with the first, it is quite easy to see that an implied condition runs all through them, and that all the contingencies therein provided for are based upon the-termination of the trust term as provided for in the first sribdivision, or by the arrival at the age of twenty-one of Benjamin, and the death of George T. Yingut, and this implied condition renders the term valid. Subject, therefore, to such a termination óf the trust estate, it would continue for the benefit of th& grandchildren then living, during their respective minorities, and also for the benefit of the other grandchildren born after the death of the testatrix, during their respective minorities.

But it is contended that there is an invalid trust to accumulate during the minorities of the grandchildren an estate which is not to be paid over to such grandchildren at their respective majorities, and which, .on the contrary, may be paid to other persons. Resort is again had to the third subdivision of the will to prove such statement. It is there provided that on the arrival of the youngest grandchild at twenty-one, and upon the death of the son-in-law, the estate is to be divided between the grandchildren who may then be living, and their heirs forever, so that, as is claimed, the accumulations arising during the minorities of the respective infants may not be paid over to those for whose benefit they ought to have accumulated, but will be paid only to such of them as should be living at the time when the youngest grandchild, born or unborn at the death of the testatrix, should come of age, and to the issue of such as should previous to that time have died, leaving issue.

In this way, it is said, the accumulations during the minorities of five infants may go to but one, which is not permitted by the statute. But this result is arrived at by insisting that the only gift of the accumulations is provided for in this already mentioned third subdivision of the sixth clause. H the accumulations have on the contrary been otherwise and legally provided for up to the time of the division of the estate, pursuant to such third subdivision, of course this argument falls. I think that they have. On looking at the sixth subdivision I think the meaning is that so long as the youngest named grandchild, Benjamin, or the son-in-law shall be living, the executors are to pay to each grandchild, at and after he arrives at the age of twenty-one years, his or her proportionate share of the rents, issues and profits of the estate of the testatrix. It seems to me that the expression “proportionate share of the rents, issues and profits of my estate , includes and was meant to include the accumulations arising from the rents, etc., of the original real estate of which the testatrix died seized, although such rents, or some part thereof, were themselves invested in real estate. The real estate which was thus purchased with a portion of the rents and profits of the original estate of the testatrix represented, and in reality was a part of such original rents and profits, and upon the arrival of each grandchild at twenty-one he was entitled to his proportionate share of such real estate thus purchased.

The provision in the third subdivision devising the real estate which may be purchased after the death of the testatrix as provided for by her in the first subdivision, when taken in connection with her language in the sixth subdivision,. must be understood to include only such real estate as shall have been purchased by the executors, and shall be in their possession after a proportionate share thereof shall have been conveyed to the respective grandchildren who arrived at the age of twenty-one years, as provided for in the sixth subdivision.

I recognize the fact that in order to obtain this reading it is necessary to make some alteration in the language of the third and sixth subdivisions, and to supply some omissions. But in doing so it only serves to carry out the main purpose of the testatrix which may be spelled out from the will itself. Governed by the same reasons which obtained in the earlier part of the discussion, I think the words in the sixth subdivision, “my youngest grandchild,” mean the youngest already mentioned in the first subdivision, and the word “ and ” should be read “ or,” so that the clause would read that the executors, as her grandchildren respectively attained twenty-one years, and “my said youngest grandchild or my son-in-law shall still be living,” should pay a proportionate share of such rents during the lives of said “ grandchild” and son-in-law. I use the word grandchild instead of “ grandchildren,” as used in the will, because I think it plain that the latter word is a mistake, and that the payment was to be continued only during the lives of the son-in-law and the youngest named grandchild, or in other words only during the existence of the trust.

To the language used in the third subdivision is added the condition already noticed, that the purchased real estate which is there intended is only that portion which may be left after a distribution to the grandchildren coming of age as provided for in the sixth subdivision. By this construction the grandchild coming of age is entitled to take his share of the amount which had accumulated out of the income during his minority whether invested in real estate or not, and to receive thereafter during the lives of the youngest named grandchild, Benjamin, and the son-in-law, his 'share of the income as it should arise.

The claim upon which the argument for the administrator defendant is principally based is that the division of accumulations is not to he made until the arrival of the youngest grandchild at age and the death of the son-in-law, and that then it is to be made between the grandchildren who may then be living, and the estate is to be tied up by those accumulations, not during the minority of each infant respectively and for its benefit, and to be paid to him on his coming of age, but for the purpose of distribution at the death of the son-in-law and the coming of age of the youngest grandchild among those who shall then be living and the issue of such as shall have died, leaving issue.

This construction leaves out of view the provision of the sixth subdivision, by which, if we are right in our view of the language there used, the accumulation provided for is to be paid over, his proportionate share thereof, to each infant as he arrives at the age of twenty-one. By the fourth and fifth subdivisions provision is made for the payment of the share of a deceased grand-child to its issue, or, failing that, to the survivors. Such a provision for the disposition of an accumulation for the benefit of an infant, in case of his death, is good.

In referring to the Revised Statutes, 1 R. S., 723, §§ 15 and.16, and page 726, § 37, relative to perpetuities and accumulations, Rapallo, J., in Manice v. Manice, 43 N. Y, 303, 375, said: “ These. sections, read in connection, precisely cover the case of a disposition of the ultimate fee, after the expiration of two lives, in favor of a minor, an accumulation during his minority, and a contingent remainder over if he should die during minority.”

There can be little question as to the validity of the disposition in favor of the issue, or the survivors of the grand-children, in case of the death of any of them prior to the time when the division comes to be made, if it be decided that by the sixth clause a division of the accumulations, as each infant reaches his majority, is provided for, and that it is not limited to a mere division of the rents and profits, excluding the real estate which was purchased with a portion of such rents. The whole force of the argument is based upon the assumption that the third subdivision is the only one which in any way provides for the division of the accumulations, and of course if that be not correct, when the foundation goes, the argument built upon it goes also.

There is, however, another objection to the validity of the scheme of accumulation. It is said that by the terms of the will no payment shall be made by the executors unless they shall be satisfied that there is not sufficient income from the estate of Mrs. Vingut for the support and education of the grand-children.

We think the general term took the correct view of this objection. As the testatrix could accumulate the whole of the income for the benefit of the infant, why could she not say that if any part should be necessary to be applied for its support and education the trustees could do it ? And why might not such necessity depend "upon the infant not having enough means from other sources for its proper support and education?

I am unable to preceive any invalidity in this clause. We are also of the opinion that the trustees took no power of sale of the unimproved property. However desirable it might be to sell such real estate, we are unable to see that the trustees have been entrusted with the power.

We are impressed in common with the courts below with the exceeding difficulty attending a construction of this will. A construction quite inconsistent with that which has been here adopted might be supported by many and weighty arguments. It would perhaps come as near to the intention of the testatrix as the one we have adopted. But it would also render the trust illegal and utterly destroy the provisions of the will. The construction which has been herein adopted brings us, as we think, quite as near the intention of the testatrix as the other would have done, and neither construction can be said to do violence to her intention so far as that intention can be discovered from a most attentive examination of the instrument itself. This makes it a strong and clear case for the application of the doctrine already alluded to, and brings us to the point of adopting that construction which, while doing no violence to the intention of the testatrix, at the same time sustains the trust and the devises mentioned in the will, rather than defeats them.

We think the trust is valid, and that it terminates upon the death of the son-in-law and the arrival at the age of twenty-one years, or earlier death, of the grand-child Benjamin Yan Home Yingut, and that the trustees have no power of sale.

The judgment of the general term should be affirmed, and the costs of all parties paid out of the fund.

Ail concur.  