
    Georgiana P. La Farge, Individually and as Executrix of the Last Will and Testament of Elizabeth B. Caldwell, Deceased, and John S. Davenport, as Executor of the said Last Will and Testament of Elizabeth B. Caldwell, Deceased, Respondents, v. Joanna C. Brown and Others, Respondents, and the D. R. Smith Infirmary and Children’s Aid Society (Sued as the Newsboys’ Home) and Others, Appellants, Impleaded with Others.
    
      Will—a trust covering one-third of the estate limited on three lives is void—-a trust as to the other two-thirds, coupled with the first trust, is also void.
    
    A testatrix bequeathed the residue of her estate to her executors intrust “to pay the rents, incomes and profits thereof unto my sister, Georgiana P. La Barge, and my mother, Joanna 0. Brown, in the proportion of two-thirds of said income, rents and profits to my said sister, and one-third of same to my mother, for and during their lives; and in the event of my sister’s deathbefore my mother, her share shall be paid to my mother; and in the event of my mother’s death, her share of said income, rents and profits shall be paid to my aunt, Banny Nichols; upon the death of both my mother and my aunt aforesaid, said one-third shall be paid to my sister; the intention of this will is that each and all said estates to bo for and during the life of the persons named in this clause, anything to the contrary herein contained notwithstanding.” The will then provided that “upon the death of the last survivor,” the executors were to dispose of the estate in a manner specified.
    
      Held, that the will was in violation of the statute against perpetuities, as to the one-third of the income to be paid by the executors under the trust, first, to the mother of the testatrix for life; secondly, to the aunt of the testatrix for her life, and in the third place to the sister for her life;
    That the trust could not be sustained as to the other two-thirds of the income, as the testatrix evidently contemplated that her residuary estate should be kept together as a whole, and intended that the income derived from it as a whole, reckoned in thirds, should be paid, two thirds of it to one set of beneficiaries, and one-third to another set;
    That the provisions of the Real Property Law (Laws of 1896, chap. 547, § 33), enacting that a remainder limited on more than two successive life estates, shall take effect upon the death of those life tenants, was a rule of law, and did not apply to a trust.
    Appeal by the defendants, the S. R. Smith Infirmary (sued herein as D. R. Smith Infirmary) and the Children’s Aid Society (sued as the Newsboys’ Home), from so much of a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Richmond on the 20th day of December, 1897, upon the decision of the court rendered after a trial at the Richmond Special Term, construing the will of Elizabeth B. Caldwell, deceased, as adjudges clauses 8 and 9 of said will to be void and of no effect.
    
      S. F. Rawson, for the S. R. Smith Infirmary, appellant.
    
      11. Linsly Johnson [Stanley W. Dexter with him on the brief], for the Children’s Aid Society, appellant.
    
      Aaron O. Thayer, for Joanna C. Brown and William N. Browne, respondents.
    
      Hcunford 8. Weed, for Albert G. Browne, respondent.
    
      Edward G. Board-man, for Charles A. Browne, respondent.
   Willard Bartlett, J.:

This suit presents for judicial construction the 8th and 9th numbered paragraphs of the will of Elizabeth B. Caldwell, an inhabitant of Richmond county, who died there on the 29th day of December, 1896.

The first seven numbered paragraphs of the will contain directions and bequests which are not material to this controversy. The 8 th paragraph is in these words :

Eighth. All the rest, residue and remainder of my estate, real and personal, I bequeath unto my executors, in trust, to pay the rents, incomes and profits thereof unto my sister, Georgiana P. La Large, and my mother, Joanna C. Brown, in the proportion of two-thirds of said income, rents and profits to my said sister, and one-third of same to my mother, for and during their lives; and in the event of my sister’s death before my mother, her share shall be paid to my mother; and in the event of my mother’s death, her share of said income, rents and profits shall be paid to my aunt, Lanny Nichols; upon the death of both my mother and my aunt aforesaid, said one-third shall be paid to my sister; the intention of this will is that each and all of said estates to be for and during the life of the persons named in this clause, anything to the contrary herein contained notwithstanding.”

At the conclusion of the 8th paragraph, the will continues:

Ninth. Upon the death of the last survivor to the estate above created in the last preceding clause of this will, I direct my executors, or their survivor and successors, shall dispose of the estate as follows, to wit: ” and then follow seven specific bequests to various charitable organizations, incorporated and unincorporated, including a gift to each of the appellants, the S. R. Smith Infirmary and the Children’s Aid Society. Her sister, Georgiana P. La Farge, her mothe)1, Joanna C. Brown, and her aunt, Fanny Nichols, the three beneficiaries named in the 8th paragraph, all survived the testatrix.

The learned judge at Special Term held that the trust sought to be created by the 8th paragraph could not be sustained, because by its terms it is to continue for three lives in being at the death of the testatrix; and that the gifts which she attempted to make in the 9th paragraph must also fail, because no one of them is to take effect until the three persons named as beneficiaries in the 8tli paragraph shall all be dead. He also decided that it was impossible to separate any valid trust from the invalid provisions of the 8th paragraph.

I think it is tolerably clear that his conclusions were in all respects correct. Analyzing the language of the 8th clause of the will, we find that it deals first with two-tliirds of the income of the residuary estate of the testatrix. Two-thirds of the income are to go to the sister of the testatrix for life, and then to the mother of the testatrix for life; so that only these two persons are mentioned as the beneficiaries who are to receive this part of the income. On the other hand, one-third of the income is to be paid by the executors under the trust, first, to the mother of the testatrix for life; secondly, to the aunt of the testatrix for her life, and in the third place to the sister for her life.

That the gift of this one-tliird of the income constitutes an illegal suspension of the absolute power of alienation of the real estate of the testatrix beyond the continuance of two lives in being at the time of her death, cannot be doubted. It also, if carried into effect, would work an illegal suspension of the absolute ownership of the personal property of the decedent. As against the manifest invalidity of this portion of the will, the appellants invoke the operation of section 33 of the Real Property Law: “ Where a remainder shall be limited on more than two successive estates for life, all the life estates subsequent to those of the two persons first entitled thereto shall be void, and on the death of those persons the remainder shall take effect in the same manner as if no other life estates had been created.” (Laws of 1896, chap. 547.) This section is a re-enactment in substance of a similar provision in the Revised Statutes. (1 R. S. 723, § 17.) The rule which it embodies, however, has never been applied, so far as we are aware, to the case of a trust. Its application has been confined to life estates in which the legal title to the property is in the life tenant. (Amory v. Lord, 9 N. Y. 403; Woodruff v. Cook, 61 id. 638.)

While it is plain, therefore, that the trust must fail so far as the gift of one-tliird of the income successively to the mother, aunt and sister are concerned, we are urged to separate from the rest of the trust the gift of two-thirds of the income for the lives of the sister and mother. This, of course, we ought to do, if the result can be accomplished consistently with the intent of the testatrix as manifested by the language of her will. There is a difficulty, however, which seems to me impossible to overcome in the way of effecting the desired separation. The testatrix has not directed the division of her residuary estate into two parts, and that the income of one of those parts shall go in one direction and the income of the other part in another. She evidently contemplated that her residuary estate should be kept together as a whole, and that the income derived from it as a whole, reckoned in thirds, should be paid, twotliirds of it to one set of beneficiaries and one-tliird of it to another set. Upon the theory of two separate trusts, the first trust gives two-thirds of the income to the sister during her life, and then to the mother during her life, and the remainder to the institutions named in the 9th paragraph of the will, while the second trust gives one-tliird of the income to the mother for her life, then to the aunt for her life, and finally to the sister for her life, with a similar remainder over to the institutions. Regarding them as separate trusts, the remainder, in case of the first trust, it is said, should go to the institutions upon the death of the sister and mother. But what remainder % According to this theory the aunt, under the second trust, would still be entitled to one-third of the income of the whole estate, and this could not be ascertained unless all the property constituting the principal from which the income was derived remained “ under the control of the trustees until the aunt’s life was terminated. Such must have been the result contemplated by the testatrix, but, unfortunately, it is a result which the law forbids. It was plainly her purpose to provide not only for her mother and sister, but for her aunt, and we shall have to disregard this purpose in order to maintain the validity of any part of the trust in question.

I think the judgment should be affirmed.

All concurred, except Hatch, J., absent.

Judgment affirmed, with one bill of costs, and the disbursements of all the respondents.  