
    John P. Kennedy, App’lt, v. Robert T. Hoy, Ex’r, et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed March 22, 1887.)
    
    1. Will—Trusts created by—Some legal, others illegal—When connected, THE WILL VOID.
    Where in a will some trusts are legal and others illegal, if they are so connected together as to constitute an entire scheme, so mat the presumed wishes of the testator would he defeated if one portion were held legal and other portions illegal, or if manifest injustice would result to the beneficiaries under the will, or some of them by holding one trust legal and the other illegal, then all must be held illegal and must fall together.
    2. Same—When independent, legal trust sustained.
    But when several trusts are created and they are independent of each other, each trust complete in itself, 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 trust may be cut off and the legal permitted to stand.
    
      Thomas M. Wheeler, for app’lt; E. H. Grandin, for resp’t.
    
      
       Affirming 39 Hun, 657, mem.
      
    
   Earl, J.

The plaintiff, a judgment creditor of William. E. Hoy, seeks in this action to procure satisfaction of his judgment out of a certain fund placed in trust under the last will of his mother, Ella Nora Hoy, for the benefit of William and his children.

In her will the testatrix placed a share of her estate in the hands of her executors and directed them to apply the income thereof to the support and maintenance of William E. Hoy and his family during his life, and after his death to pay the income to his surviving children “until they reach the age of twenty-one years, when the principal is to be divided among them share and share alike,” and in case William should die without lawful issue surviving him, or in case all his children should die subsequently to his decease before reaching the age of twenty-one years and without leaving issue, then she directs the share to be divided equally among all her three surviving children and the children of any deceased child. William survived and had a wife and two children.

The claim on the part of the plaintiff is that the trusts created for the benefit of William and his children are void because they suspend the absolute ownership of personal property for a longer period than is authorized by the statute, and that, therefore, the whole or a portion of the trust property became vested in William, and that the plaintiff can reach that property for the satisfaction of his judgment.

We do not deem it important now to determine whether all the trusts for William R Hoy and his children are valid or not, because it is sufficient for the determination of this action that the trust for the life of William is legal and valid. That is a separate trust, created by a separate paragraph in the will, is complete in itself, and is not comiected with the trust intended to take effect after his death, and can be permitted to stand alone.

It has been decided in many cases that where in a will some trusts are legal and others' illegal, if they are so connected together as to constitute an entire scheme, so that the presumed wishes of the testator would be defeated if one portion were held legal and other portions illegal, or if manifest injustice would result to the beneficiaries under the will, or some of them, by holding one trust legal and the others illegal, then all must be held to be illegal and must fall together. But when several trusts are created and they are independent of each other, each trust complete in itself, and the legal can be separated from the illegal and withheld without doing injustice or defeating what the testator might in the emergency be presumed to wish, the illegal trust may be cut off and the legal permitted to stand, and thus the intention of the testator.be effectuated so far as the laws will permit. In this case, by upholding the trust for the benefit of William E. Hoy during his life, no injustice is done to any of the other beneficiaries under the will, and effect is given to the primary intention of the testatrix, so far as pertains to William and his family.

A precise authority for this conclusion is the case of Van Schuyver v. Mulford (59 N. Y., 426). In that case the will of M, by separate and independent, clauses, gave to his wife the rents income and profits of his estate, real and personal, during her life, to the extent necessary to her support; and in case they were unsufficient he directed his executor and trustee to take and pay to her from the body of the estate what should be necessary from time to time. In another clause he bequeathed the rents, income and profits after the death of his wife to his two daughters during life; and after the death of the wife and daughters he devised and bequeathed the estate to the issue of his said daughters; and it was held that the provision for the wife was valid and would be sustained although the devise was void. That case is so like this that no other authority need be referred to or cited.

Therefore, the trust for William E. Hoy being valid, there is nothing out of which to satisfy the plaintiff’s judgment, and there is no ground for the maintenance of this action.-

The judgment should be affirmed, with costs.

All concur.  