
    Grace A. Keyes, App’lt, v. William H. Manning et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 26, 1895.)
    
    W ills—Pebpet dities.
    Where & will gives the entire estate to executors, in trust, to divide the property into three equal shares and hold one part for each of the testator’s three children for life, and provides that, at his death, tlio trustees shall give the son’s share to his issue, but, should he leave no issue, then his share shall he distributed equally between the issue of the testator’s daughters, and that, if one of said daughters leave no issue, then such shares shall be given to the children of his other daughter, there is no suspension of the power of alienation longer than two lives in being at testator’s 'death.
    Appeal from a judgment, construing the will of Seth G. Keyes, deceased.
    
      Samuel TF. Bower, for app’lt; William J. Carr, for resp’ts Bertha A. Norton and others. Farnham & Stevens, for resp’t J. S. Hilliard ; Russell, Paste & Percy, for executors.
   Dykman, J.

This action was commenced by the plaintiff, who was a daughter and legatee of Seth G. Keyes, deceased, against the executors and other legatees and next of kin, to obtain a judicial construction of the will of her father, and for judgment directing the executors to pay to her such share as she may be entitled to receive. The testator, Seth C. Keyes, died on t-he seventh day of January, 1893, leaving him surviving (his only heirs at law and next of kin), three children, to wit: Amelia A. Norton, Grace A. Keyes and Seth C. Keyes, Jr. The will was proved and admitted to probate on the twenty-sixth day of January, 1893, and letters testamentary were issued to the defendants Wiiliam'H. Manning and John Wood, Jr., and they took possession of the estate, which amounted, to about the sum of $15,000. Seth G. Keyes, Jr., died on the eleventh day of June, 1893, intestate, without issue, and without leaving father or mother, and leaving, him surviving (his only heirs at law and next of kin), his two sisters, ■Amelia A. Norton and Grace A. Keyes. The scheme of the will of the testator is obvious. The entire property is given to the executors in trust to receive the rents and profits of the same, sell and dispose of the same, and divideJfche property, or the proceeds thereof, into three equal shares, and hold one of the said parts for each of the children, Amelia, Grace and Seth, during his and her natural life, and pay over to each one the income of the share so set apart for him or her, so long as they live ; to give or apply to either a part or the whole of the principal of the share so set apart to him or her, in the discretion of the executors.

The fifth clause of the will has created the embarrassment, and it reads as follows:

“At the death of Seth 0. Keyes, Jr., my trustee shall give his one-third share, or so much thereof as may remain, to his lawful issue; to have and to hold to them, their heii’s and assigns, forever. Should he leave no such issue, the said share, or so much thereof as may remain, shall be distributed equally between the lawful issue of my daughters, Amelia A. Norton and Grace A. Keyes. Should Grace A. Keyes leave no such lawful issue, then said share, or so much thereof as shall remain, shall be given to the children of said Amelia A. Norton ; to have and to hold, their heirs and assigns, forever.”

It is the claim of the plaintiff that the provision in said fifth clause is void, because it suspends, the power of alienation for _ more than two lives in being 'at the death of the testator, to wit, Amelia, Grace and Seth, and that one-third share therein mentioned descends to the plaintiff and her sisters, as heirs at law and, next of kin of the testator and Seth 0. Keyes, Jr., and she seeks a judgment to that effect. The fund is separated into three shares, and the income upon each share is given to a beneficiary. In effect, there are three distinct trusts, or more properly speaking, a trust in relation to the three distinct funds. The absolute ownership of the fund is not suspended at any time. The title is in the trustees until the death of the life tenant. Then each share vests in the remainderman. No disposition of income after the death» of each life tenant is made, because then the fund goes to the owner. The testator contemplated his grandchildren as the object of his bounty, as a class, because he denominated them as “children," and not individually. They became tenants in common, and the language employed is equivalent to a direction to pay to the grandchildren. There is therefore no embarrassment in relation to the shares of Amelia and Grace. When the time arrives for the distribution, the share of Amelia is to be given over to her children, and the share of Grace is to be given to the children of Amelia, unless Grace leaves lawful issue; but if she leaves lawful issue, her surviving, then her share is to be given to them.

In relation to the fifth clause, which relates to the testator’s son, Seth, his share went to his issue; but if he left none, then it went to the lawful issue of his two sisters, as a class. It was a fluctuating class, to be ascertained and determined at the time of the death of the son. Such is the natural inference from the phrase, “ at the death of Seth 0.," at the commencement of the clause. As no class answered to that description at that time, except the children of Amelia, they must be deemed to have taken the share of the testator’s son, Seth. We think, therefore, the will received the proper construction in .the court below, and the judgment should be affirmed, with costs to Amelia A. Norton, to be, paid from the estate.

All concur.  