
    Greer v. Chester et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    December 28, 1891.)
    1. Wills—Partial Invalidity—Separable Provisions—Trusts.
    An estate was devised in trust to pay the income to the husband of testatrix during his life, and after his death to pay one-half the income to her grandson during his life, the other half to accumulate until the grandson’s death, when the whole of the estate was to go to certain charitable institutions. The direction for accumulation was unlawful, and the charitable bequests failed because the will was not executed two months before the death of testatrix. Held, that the trusts in favor of the husband and grandson might be sustained, as separable from the invalid provisions.
    2. Same—Merger of Trusts.
    The fact that the husband and grandson were the only heirs and next of kin, for which reason the husband became entitled to the remainder in one-third of the personalty, and the grandson after the husband’s death would take one-half the estate absolutely, and the remainder in the other half subject to a trust in his own favor, constitutes no reason why, in either case, the trust should be held to merge, especially as the grandson refused to consent to a merger of any part of the trust.
    Appeal from circuit court, Albany county.
    Action to construe a will, brought by Thomas H. Greer, individually and as executor of the last will and testament of Anna L. Greer, deceased, against Thomas Hoag Greer, Albany Guardian Society & Home of the Friendless of Albany, N. Y., the Babies’ Nursery of Albany, N. Y., the Albany City Tract & Missionary Society, the Home for Aged Men of Albany, N. Y., and Alden Chester, as executor of and trustee under the last will and testament of Anna L. Greer, deceased. On trial by the court without a jury, judgment was rendered declaring the will entirely void. Defendant Alden Chester appeals.
    Judgment modified so as to sustain certain trusts.
    Argued before Learned, P. J., and Mayiiam and Putnam, JJ.
    
      Robert &. Scherer, for appellant. James J. Farren, (D. Cady Herrick, of counsel,) for respondent.
   Putnam, J.

The action was brought to obtain a construction of the will of-Ann a L. Greer, deceased. Certain provisions therein are conceded to be void by the parties, and were so held by the court below. The question in the case arises out of the ninth clause in the will, which the trial court held invalid, and which, as far as necessary to set out, is as follows, viz.: “Ninth. I give, devise, and bequeath all the rest, residue, and remainder of all my property and estates, real and personal, of whatever name, nature, or kind, to Alden Chester, of the city of Albany, N. Y., in trust, nevertheless, to receive the interest, income, rents, issues, and profits thereof, and, after paying thereout all taxes and assessments, cost of repairs and insurance, and all expenses and commissions for the management of said trust, to pay the balance of said interest, income, rents, issues, and profits, quarterly, to my said husband, Thomas H. Greer, for and during the term of his natural life; and, from and after the death of my said husband, to pay one-half of the said balance of said interest, income, rents, issues, and profits, quarterly, to my said grandson Thomas Day Greer, during the term of his natural life, and the other one-half thereof to be added to the principal of my estate.” The will then provides for or contemplates an accumulation of one-half of the income of the testatrix’s estate specified in said ninth clause, after the death of plaintiff, until the death of her grandson Thomas Day Greer, when the whole estate is devised to certain charitable and benevolent corporations. The direction for the accumulation is conceded to be unlawful, and also the devise to such benevolent corporations; the will not having been executed two months prior to the death of the testatrix. After the bequest or devise to the defendant Alden Chester, as trustee, to pay over the income of all her said estate to her husband, Thomas H. Greer, for life, and, after his death, one-half of said income to her grandson Thomas Day Greer, the residue or remainder of the estate of the testatrix was in fact undisposed of, the direction for the accumulation and the devise to said charitable associations being void. The plaintiff, the husband of the testatrix, and the defendant Thomas Day Greer, are the only heirs and next of kin. The special term held the ninth clause of the will invalid; and as to the property therein bequeathed and devised to said defendant Alden Chester, in trust, that testatrix died intestate; and adjudged that such property should be divided between the husband and grandchild, one-third to the former and two-thirds to the latter. In effect, the court below held that the legal portion of the will in the ninth clause could not be sepa-, rated from the illegal parts of the will therein or subsequent thereto, and that hence the whole was void. Knox v. Jones, 47 N. Y. 390.

The doctrine is well established that “where several trusts are created by will, which are independent of each other, and each complete in itself, some of which are legal and others illegal, and the legal can be separated from the illegal, and upheld, without doing injustice or defeating what the testator might in the emergency be presumed to wish, the illegal trusts may be cut off, and the legal permitted to stand.” Kennedy v. Hoy, 105 N. Y. 134, 11 N. E. Rep. 390; Van Schuyver v. Mulford, 59 N. Y. 426; Underwood v. Curtis, 127 N. Y. 542, 28 N. E. Rep. 585. The bequest, to the defendant Chester, as trustee, to pay over the rents and income to the plaintiff for life, and after his death to pay one-half of said income to the defendant, his grandson, is legal, and does not violate any statutory provision. Being lawful, the intent of the testatrix should be carried out, and effect given to such provisions of the will if said lawful provisions can be separated from the parts of the will that are unlawful, without defeating what the testatrix might under the circumstances be pres umed to wish. See Van Schuyver v. Mulford, ubi supra. The lawful provisions in the will so contained in the ninth clause, bequeathing to defendant Chester property upon the trust to pay over the income to plaintiff for life, are plainly separable from the subsequent unlawful provisions, within the cases above cited. There seems to be no connection between said lawful bequest and the unlawful provisions of the instrument. As before stated., the will is the same as if, after the bequest for the benefit of her husband and grandson, testatrix had failed to devise or bequeath the residue and remainder of her estate. The bequest for the benefit of the plaintiff being lawful, the intent of the testator should be carried' out. See Manice v. Manice, 43 N. Y. 384. This bequest being lawful, and not inconsistent with other portions of the will, or with the presumed intentions of the testatrix, there seems no difficulty in giving it effect.

Bub it is claimed by plaintiff that, the remainder of the estate of deceased not being disposed of by the will after the life-interest of the plaintiff, he became, from the death of the testatrix, seised of a one-third interest in the remainder of the personal estate left by deceased; and that as to that part of the personal estate, being entitled to the income and also the owner of the remainder as next of kin, he should receive the same divested of the trust. There are certain cases cited by the plaintiff holding that, where all the objects and purposes of the trust have been accomplished, the court can terminate it, all the parties beneficially interested desiring its termination. Sears v. Choate, 146 Mass. 398, 15 N. E. Rep. 786; Inches v. Hill, 106 Mass. 575. This is not such a case, however. The intent of the testatrix was that defendant Chester, as trustee, should hold all the property described in the ninth clause of her will for the life of plaintiff, and pay over to him the rents and profits for that period. It is an active trust. Besides, the defendant Thomas Day Greer has an interest in the carrying out of the trust, and does not consent to the termination of the trust as to any part of the trust-estate. See Asche v. Asche, 113 N. Y. 232, 21 N. E. Rep. 70, and 47 Hun, 285, 18 Abb. N. C. 82. The personal estate of testatrix being left after the life-interest of plaintiff therein has expired, undisposed of, probably on her death the husband acquired an interest in one-third of the same, subject to the trust. As held in Asche v. Asche, 113 N. Y. 232, 21 N. E. Rep. 70, by such acquisition the plaintiff acquired a future estate, dependent upon the precedent estate of the trustee, which he cannot enjoy in possession. He might devise it, but cannot possess an estate conditioned upon his own death. It follows that the ninth clause, as far as it devises or bequeaths to the defendant Alden Chester the residue of the estate of the testatrix in trust to manage and control and pay the income to the plaintiff for the period of his natural life, should be deemed and held valid, and the intent of the testatrix, as therein stated, should be carried out. But the ninth clause in addition provides that the trust of one-half of the estate shall continue during the life of the defendant Thomas Day Greer also. This is valid, as is shown in the opinion of Judge Learned. Decree modified in accordance with these opinions. Costs of both parties on appeal to be paid out of estate.

Learned, P. J.

The provision is: “From and after the death of my said husband, to pay one-half of the said balance of said interest, income, rents, issues, and profits, quarterly, to my said grandson Thomas Day Greer during the term of his natural life.” This devise and bequest in trust is valid, as it does not extend beyond two lives in being. The further clause, “and the other one-half thereof to be added to the principal of my estate,” is invalid. So, it is conceded, are the bequests and devises after the death of the husband and grandson to certain societies. Assuming, then, that, as to the one-half of the estate after the trust life-estate for the husband, and as to the other-half after the trust life-estate for the grandson, the testatrix was intestate, the grandson would take this undisposed-of property as heir at law and next of kin, excepting such personalty as must go to iler husband. But I see no reason why this inheritance and succession should affect the valid trust-es-tote for his life. Suppose, as might be the case, that he were not the only next of kin and heir at law, would not the trust for his life remain undisturbed, notwithstanding the failure of these other provisions? The testatrix contemplated giving to a trustee an estate for life in one-half of her property for Thomas Day Greer. This estate went to the trustee. Thomas Day Greer had no estate therein, legal or equitable. 1 Rev. St. p. 729, § 60. Why, then, should the failure of the intentions of the testatrix in other respects defeat this provision? She may have thought it best to protect the grandson as to the income of half of the estate against loss or improvidence. We need not defeat that intention because he inherits and succeeds to property which she had intended should go elsewhere. There is nothing inconsistent in the fact that the trustee should have an estate in trust for the life of the beneficiary Thomas Day Greer, and that the beneficiary should have the remainder in fee. There is no merger. 1 Rev. St. marg. p. 727, §§ 47, 48. He is not the owner of a particular estate, as mentioned in Id. p. 732, § 81. He can dispose of the remainder in the half of the estate in which he has a beneficial interest, subject to the trust. Id. p. 729, § 61. But, notwithstanding this, the object of the testatrix, (as we may suppose,) viz., to secure the income to the grandson for life, against the risks of business or improvidence, should be carried out. Id. p. 730, § 63. When a valid devise in trust is plainly given, and can be carried into effect, although other parts of the will fail, we should not endeavor to ascertain what the testatrix might have done if she had known that these other parts of the will were invalid. So far as her will is valid, it should be performed. In that way we shall come nearer to giving her wishes effect. I think, therefore, that the judgment should be modified by declaring the two trusts above mentioned to be valid, and that subject to these two trust-estates in the trustee the property of the deceased went to her heir at law and next of kin and husband, according to the laws of descent and distribution.

Mayhah, J., concurs.  