
    In the Matter of Proving the Last Will and Testament of Inslee Hopper Berry, Deceased. The Lutheran Hospital of Manhattan, Appellant; Sarah C. McCamly and Others, Respondents.
    First Department,
    January 3, 1913.
    Will—trust — suspension of power of alienation for definite period — when void trust may be disregarded and remainder given effect.
    Where a will creates a trust for a definite period of five years with a vested remainder after the expiration of said period, the trust provision, being invalid as not measured by two lives in being, may be disregarded and the vested remainder given effect upon the death of the testator instead of at the expiration of the five-year period.
    A vested gift, otherwise valid, will not fail merely because it is limited to take effect at the expiration of a trust which is void under the statute.
    Appeal by The Lutheran Hospital of Manhattan, a legatee, from so much of a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 20th day of July, 1912, as refused to admit to probate the 10th clause of the decedent’s will.
    
      Roger Hinds, for the appellant.
    
      Rockwood & Haldane, for the respondent Sarah C. McCamly.
   McLaughlin, J.:

Mr. Inslee H. Berry died on the 30th of January, 1912, leaving a last will and testament, which, except the 10th clause, was admitted to probate. As to this clause probate was refused on the ground that it violated the provisions of the statute relating to the suspension of the power of alienation, and was, therefore, invalid. It reads as follows:

Tenth. All the rest, residue and remainder of my estate, réal, personal and mixed, of whatsoever nature and wherever located, I give, devise and bequeath to my executor hereinafter named, in trust never-the-less for the following purposes, to wit: To invest the said rest, residue and remainder in good, safe securities and to pay the income therefrom for a period of five years from the date of my decease, one-half thereof to the Employees Benefit Association of the Department Store of Simpson, Crawford Company, of New York City, and one-half thereof to the Employees Benefit Association of the 14th Street Store, in New York City. At the expiration of said five years from the date of my decease, my executor, as such trustee to pay over the principal of my said residuary estate to the Lutheran Hospital, now in process of organization, and of the Medical Board .of which I am a member and its Secretary. Should this said Hospital not be organized at, or before, the expiration of said five years, then and in that event, my said executor, as such trustee shall pay the principal of my said residuary estate to Angeline Mott Berry, of Bockaway, New Jersey.”

The appeal is taken by the Lutheran Hospital. The will purports to have been executed on the 20th of January, 1911. At that time the testator was a member of an unincorporated association known as the 1 c Society of the Lutheran Hospital of the City of New York,” one of the purposes of which was to effect the incorporation of the appellant, the “ Lutheran Hospital of Manhattan,” and it was in fact incorporated under article 7, section 130, of the Membership Corporations Law (Consol. Laws, chap. 35; Laws of 1909, chap. 40) on the 23d of November, 1911, and is the hospital referred to in the 10th clause.

The learned surrogate, as appears from his opinion, held — and I think Correctly — that the provision in the 10th clause relating to the Employees Benefit Association of the Department Store of Simpson, Crawford Company, of New York City, and the Employees Benefit Association of the 14th Street Store in New York City, was invalid because the trust was measured, not by two lives in being, but by the definite period of five years. (Brown v. Quintard, 177 N. Y. 75; Haynes v. Sherman, 117 id. 433; Hagemeyer v. Saulpaugh, 97 App. Div. 535.) And he concluded that since the clause was void in this respect the bequest to the hospital was also void since it depended upon the former gift and could not be separated from it.

I am of the opinion that he was in error in holding that the gift to the hospital was invalid. The enjoyment of this gift by the hospital is definitely fixed, i. e., the expiration of five years, and the person to whom it was. given was in being, definitely ascertained and competent to take at the time of the death of the testator. There is nothing uncertain about it. It was a vested remainder. A future estate is vested when there is a person in being who would have an immediate right to the possession of the property on the determination of all the intermediate or precedent estates. (Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], § 40.) The authorities, so far as I have been able to discover, are all to the effect that a vested gift, otherwise valid, will not fail merely because it is limited to take effect at the expiration of a trust which is void under the Statute of Perpetuities. (See Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], § 42; Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § HO

In Kalish v. Kalish (166 N. Y. 368) the court expunged the intermediate trust estate, but held the remainder valid, and in doing so said: “It is axiomatic that courts cannot make new wills for testators who have failed to make valid wills for themselves. While recognizing the force of this truth, courts have from the earliest times been compelled to choose between the alternatives of setting aside certain wills altogether, or of cutting out simply their void provisions. This necessity has led to the rule which is now firmly established in this State, that when the several parts of a will are so intermingled or interdependent that the bad cannot be separated from the good, the will must fail altogether; but when it is possible to cut out the invalid provisions so as to leave intact the parts that are valid, and to preserve the general plan of the testator, such a construction will be adopted as will prevent intestacy, either partial or total, as the case may be.”

In Brinkerhoff v. Seabury (137 App. Div. 916; affd., sub nom. Brinkerhoff v. Green, 201 N. Y. 559) the will contained a provision for a fifteen-year trust. This was held bad and expunged, but the trust for the testator’s two daughters at the expiration of fifteen years was held valid and was accelerated when the fifteen-year trust was expunged.

In Smith v. Chesebrough (176 N. Y. 317) the testator attempted to create a trust for a period of two years. This was held void as against the Statute of Perpetuities and expunged, but the gift over after the expiration of the trust was held good, the court saying: “ The ultimate trust was not revoked by the' codicil, and the nature of the estate devised to the ultimate trustees was hot changed, but the- testator made an attempt to postpone the enjoyment thereof, which was in contravention of the statute, and, therefore, void. • By taking out of the codicil the invalid provision for postponement, the only change in the testator’s plan for the disposition of his residuary estate is that the physical possession of the remainder is accelerated so as to take effect upon the testator’s death instead of two years later.”

Here, by eliminating the provision of the 10 th-clause relating to the employees Of the two associations, the intent- of the testator will be carried out. The only change in his plan ,is that the physical possession of the residuary estate is accelerated so as to take effect upon his death instead Of at the expiration of five years. By expunging the invalid part of the- 10th clause a partial intestacy — which the law does hot favor— is avoided (Harrison v. Harrison, 36 N. Y. 543) and the substantial part of it. is preserved in. its: entirety.

The decree, in so far as appealed from, is, therefore, reversed, and the whole will admitted to probate as indicated in this opinion, with costs to the appellant payable out of the estate.

Ingraham,' P. J., Olarke, Sgott and Dowling, JJ., concurred.

Decree reversed and will admitted to probate as indicated in opinion, with costs to appellant payable out of estate. Order to be settled on notice,  