
    Charles T. Garland and Robert B. Dodson, as Executors, Etc., et al., Plaintiffs, v. Annie Louisa Garland et al., Defendants.
    (Supreme Court, New York Special Term,
    May, 1901.)
    Trust — Void accumulation — Separable from scheme of distribution_
    Disposition of accumulation.
    Personal property can be accumulated only during the minority of beneficiaries (L. 1897, chap. 417, § 4), and therefore a testamentary direction to the trustees of a residuary' estate that they shall pay the testator’s widow a fixed sum for life from the income, accumulate any surplus income, and add it to the principal of the residuary estate, is unlawful.
    The unlawful accumulation does not, however, affect the validity of the life provision for the widow, nor the validity of prior, distinct and separable trusts for children of the testator, to which trusts the entire residuary estate is directed to pass in equal shares upon the widow’s death.
    The accumulated income, and any excess of income accruing in the future, will pass to the last mentioned trustees as the persons presumptively entitled to the next eventual estate.
    Action for the construction of a will. The nature of the action and the material facts are stated in the opinion. ,
    Evarts, Choate & Beaman (William V. Rowe, of counsel), for plaintiffs. ;
    Coudert Brothers (Lorenzo Semple, of counsel), for defendant Annie L. Garland.
    Eliot Tuckerman, for defendants James A. Garland and Charles T. Garland, individually, and Marie T. Garland.
    
      John S. Sheppard, Jr., for defendant trustees.
    Charles N. Harris, for defendant Louise Garland Emmet.
    William V. Rowe, for defendant Harvard College.
    William T. Emmet, guardian ad litem, of infant defendants.
   Giegerich, J.

This action is brought for the construction of a will.

The testator died in July, 1900, leaving a last will and testament by which he disposed of a large estate. Three trust funds are specifically created, each of the amount of $500,000, for each of the testator’s three children, the rents and profits in each case to be paid over by the trustees to the respective beneficiaries. The will further directs the trustees 'to hold the residue of the estate in trust for the widow for life, and to pay therefrom to her the sum of $12,000 per year, further providing.that should the income from such residue exceed $12,000 per annum the excess shall be added annually to the principal of said residue.” There was also the following further directions: Hpon the death of my wife, I direct my executors and trustees to divide the said residue of my estate then remaining into three equal parts, and to add one of said parts to each one of the said separate funds of Five hundred thousand dollars, established as hereinbefore directed and to dispose of the same in the manner hereinbefore directed for the disposition of said separate funds.”

The residue of the estate, remaining after the three trust funds above meptioned were completed, has proved to be upwards of one million dollars, consisting of personalty, with the exception of a small amount of real estate in Maine, and the excess of income from such residue, abovfe the $12,000 directed to be paid to the widow, is about $40,000.

It is conceded by all parties that this direction to accumulate the surplus of income is void as being in contravention of the statute, and the only questions for determination are first whether that direction was so intimately connected with the general scheme of disposition on any particular part thereof, as to nullify the whole or such part, and second, if there is not such an intimate relation, and. the other provisions of the will stand, then to whom shall this excess of income be paid.

The prohibitions against the accumulation of income of personal property are now found in section 4 of the Personal Property Law, chapter 47 of the General Laws (Laws of 1897, chap. 417), and are very similar to the corresponding prohibition against accumulations of rents of realty which is found in section 51 of the Real Property Law, being chapter 46 of the General Laws (Laws of 1896, chap. 547). Both these sections are substantial reenactments of earlier provisions found in the Revised Statutes (1 R. S. 726, §§ 37, 38; 1 R. S. 773, §§ 3, 4, respectively), and consequently the earlier decisions are still applicable to such cases.

In Williams v. Williams, 8 N. Y. 525, 538, it was held that the direction for accumulation only is void in such a case as this, and that the legacy itself is not defeated. The doctrine of the foregoing case was reaffirmed in Kilpatrick v. Johnson, 15 N. Y. 322, 324; Manice v. Manice, 43 id. 303, 384; Pray v. Hegeman, 92 id. 508, 519; Barbour v. De Forest, 95 id. 13, 16; Cochrane v. Schell, 140 id. 516, 535, and Hascall v. King, 162 id. 134, 152.

From these authorities it follows that, although the accumulation cannot be made as the testator desired, nevertheless the trust for the widow and the remainders over to the children are left unaffected, and the only question to be determined is how the excess of income shall be distributed.

The Real Property Law provides (General Laws, chap. 46, § 53) as follows:

“53. When, in consequence of a valid limitation of an expectant estate, there is a suspension of the power of alienation, or of the ownership, during the continuance of which the rents and profits are undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the persons presumptively entitled to the next eventual estate.”

While this section has never been incorporated into the laws governing personal property, it is, in effect, made a part thereof by the general provision that “ in other respects, limitations of future or contingent interests in personal property are subject to the rules prescribed in relation to future estates in real property.” Personal Property Law (General Laws, chap. 47, § 2).

And in Cook v. Lowry, 95 N. Y. 103, 108, it was held to be settled by the great weight of authority that the sentence last quoted makes applicable to personal property section 53 of the Real Property Law, which was at that time 1 Revised Statutes, 726, section 40.

Who, then, are the “persons entitled to the next eventual estate? ” .Are they the trustees of the several funds, or are they the respective beneficiaries? The answer to the question is not of very substantial importance, as in either case the money will go at once to the beneficiaries, but in. the one case it would go through the hands of the trustees, while in the other case it would go directly.

In Manice v. Manice, supra, 385, 386, it was decided, under circumstances similar to those now presented, that the trustees should take, and that decision controls in this case.

The accumulated income should, therefore, be divided into three equal parts and one of such parts be paid to the respective trustees of each of the three funds who should, in turn, pay over the same, as income, to their respective cestuis que trustent. The same course should be followed with the surplus, hereafter, as it irom time to time accrues.

Ordered accordingly.  