
    Matter of the Estate of Susan E. Hurlbut, Deceased.
    (Surrogate’s Court, New York County,
    June, 1906.)
    Suspension of power of alienation — Conditions determining validity of suspension — Property and estates affected by statutes against suspension; Necessity that suspension period' should be measured by human lives — Estate in trustees; Validity of particular future estates-—Creation of more than two life estates.
    Surrogates’ Courts — Procedure and review — Orders and decrees ■— Operation as bar or as conclusive evidence — Subjects and matters concluded.
    Executors and administrators — Distribution and disposal of personal estate — Reimbursement of principal out of income.
    A trust for the lives of her two sons, created by a testatrix in the remainder of her estate, limited upon a life estate to her husband, with an ultimate remainder to her grandchildren who should be living- at the death of both sons, does not unlawfully suspend the power of alienation.
    Nor does the will offend the statute limiting successive life estates to two persons in being, the estate in the trustees being but-a single estate.
    A decree of a surrogate is not conclusive upon the parties in establishing a rule of law which will control in the la.ter administration of the estate.
    Disbursements. from capital in discharging taxes and defraying other expenses which should have been paid out of income, when the income on hand was insufficient, should be made good out of income subsequently collected.
    Proceeding for the judicial settlement of the account of executors and trustees.
    Peabody, Baker & Peabody, for trustees.
    Howard Payson Wilds, for objector.
    Parsons, Olosson & Mcllvaine, for objectors.
    John T. Penlon, referee.
    Charles D. O’Connell, special guardian.
   Thomas, S.

The legal estate for his life, devised to the husband of the testatrix by the third clause of her will, did not suspend the power of alienation for any period or for any purpose. So long as the husband lived he could convey his life estate to whomsoever he chose, and the only difficulty in conveying the entire fee arose from the provisions in the fourth clause of the will, which created a trust in the remainder, after the husband’s life estate, the continuance of which was measured by the lives of her two sons, with an ultimate remainder to the grandchildren of the testatrix who should be living at the death of both of the sons. This trust suspended the power of alienation, for; while it continued, the estate included in the trust provision, and the proceeds of such estate, if sold under the power, were barred by the trust, and the persons ultimately entitled thereto could not be ascertained until the two sons were both dead. But this suspension was not in any degree caused by the legal life estate to the husband, and could not, under any circumstances whatever, exist beyond the lives of the two sons. For if at the end of their lives the husband was already dead, the entire property would at their death be released from the suspension. And if, on the other hand, at the end of their lives the husband were still living, then the ultimate remainder would vest absolutely in the grandchildren of the testatrix living at that time, and they and the husband would, among them, hold the entire fee with power to convey absolutely. Thus, whether the husband did or did not survive the two sons, still at their death all parts of the absolute fee would certainly vest somewhere. For this reason the trust created by the fourth clause of the will is not void as offending against the statute concerning unlawful suspensions of the power of alienation. Bailey v. Bailey, 97 N. Y. 460.

It is also contended that the will offends the statute as to successive life estates. This statute is as follows: “ Successive estates for life shall not be limited, except to persons in being at the creation thereof; and 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 estate had been created.” 1 R. S. 723, § 17; Real Prop. Law, § 33. The legal estate in the trustees in the remainder is not two life estates, though two lives are employed as a measure of the continuance of the trust term, but it is a single estate, and it is not invalid, either in whole or in part, because it is of a remainder interest after a preceding life estate. Amory v. Lord, 9 N. Y. 403; Woodruff v. Cook, 61 id. 638, 641; Bailey v. Bailey, 97 id. 460; La Farge v. Brown, 31 App. Div. 542, 545. No invalidity appears in the will, and the referee’s report will be confirmed and all objections overruled which depend upon the questions heretofore considered.

The referee erred, however, in treating the decree of this court made, on default of objections thereto, in October, 1900, as conclusive upon the objectant as to her contention that the capital of the trust had improperly been used since the date of that decree, in making payments to beneficiaries of the trust, instead of making good therefrom capital which, before that decree, had been applied in discharging taxes and defraying other expenses which should have been paid out of income. The decree of a surrogate is not conclusive upon the parties in establishing a rule of law which will control in the later administration of the estate. If not appealed from, it will serve as a complete protection to the accounting executor or trustee, against all of the parties duly cited, as to all questions concerning the correctness of his accounts thereby approved and the disbursements therein directed; but the jurisdiction of the surrogate to construe the will of the testator or to define or declare the rights of the beneficiaries of a trust as between themselves is limited to the necessities of the accounting then before the surrogate. Bowditch v. Ayrault, 138 N. Y. 222, 231; Matter of Hoyt, 160 id. 607, 618; Matter of Perkins, 75 Hun, 129; affd. on" opinion below, 145 N. Y. 599; Frethey v. Durant, 24 App. Div. 58; Matter of Hunt, 41 Misc. Rep. 72. Having in mind the character of accountings before the surrogate, the large number of issues possible to be raised on numerous items of receipts and disbursements, and the necessity for expedition in passing upon the decree, the rule is not only logical, but is also useful and just.

At the time when the disbursements from capital were made, which are complained of, the income .in the hands of the trustees was entirely insufficient to make them. The use of capital to pay the obligations of the persons then entitled to income should have been corrected by turning over income subsequently collected to the account of principal, and this may be done in the decree in this proceeding. So much of the referee’s report as concerns these matters is reversed, and the proceeding will be set down before me on July second, at ten thirty a. m., for further hearing with respect thereto. Notice of such hearing should be served.

Decreed accordingly.  