
    Nicholas W. Walsh, Ex’r, Resp’t, v. Marie Waldron et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 18, 1892.)
    
    "Wmij—Suspensión of power of alienation.
    A testator, by his will, devised his estate to trustees, and directed that each child during minority should receive such portion of the entire in- . come as the trustees thought best; that the interest of the sons in the principal and income should cease at majority unless the daughters died without issue. There were four sons and two daughters; all but one of whom were minors when their father died. Held, that the trust was entire and was void as suspending the power of alienation for more than two lives in being at the death of the testator.
    Appeal from a judgment at special term construing the will of Hugh Waldron, deceased.
    _ John Delaliunty, for pl’ff, resp’t; Michael J. Scanlon, guardian ad litem for infant app’lts; David M. Newberger, for def’ts, resp’ts; Ezekiel Eixman, for guardian ad litem for infant resp’ts.
   Lawrence, J.—The

learned justice who decided this case below rendered the following opinion:

O’Brien, J.—In

construing the will of Hugh Waldron, deceased, no doubt as to his intentions exists. The language used is unambiguous and the scheme proposed clearly indicated.

He intended that each child during minority should receive • such a portion of the entire income as, in the discretion and judgment of the executors and trustees, would be requisite for his or her support and education, and that as each son attained his majority his interest in the income should cease, and even in the principal he should not thereafter participate, except in the event of either of his daughters dying without issue, or perhaps in the event of the daughters dying, though leaving issue, without having made a will.

His two daughters were the primary objects of his solicitude, as evidenced by the provisions which gave to each of them upon the youngest son, Daniel, attaining his majority, one-half of the entire income for life, with the right to each upon her death having issue to dispose of one-half of the principal.

To effectuate these intentions a conversion of the real estate would be necessary, and in determining the validity of the trusts created by the will we must assume the real estate to be equitably converted into personal property. Should the trusts, however, be declared void and the testator be held to have died intestate, then the necessity of resorting to the doctrine of equitable conversion likewise falls by becoming immaterial.

Are the trusts of personalty created by the will valid ? Under the Revised Statutes, the absolute ownership of personal property shall not be suspended by any limitation or condition whátever by will for a longer period than two lives in being at the death of the testator.

By the fourth clause of the will, the ownership is suspended during the minority of at least four of testator’s children, and even if we construe minority to mean lives we have still the ownership suspended for a period longer than the statute allows.

There is no separate trust in favor of each child, nor any aliquot or proportionate share of income allotted, but the principal and income are to be held in a single trust, and each child receives such proportion of the income as the trustee thinks proper to give.

The fourth clause being void, can the sixth clause be upheld ?

This provides “ that when my youngest son, whose name is Daniel, shall have attained the age of twenty-one years, that the income arising from all of my estate shall then be equally divided between my daughters, Marie and Ellen, during their lives, and in the event of either of my said daughters dying leaving issue, then, and in that event, one-half of my said estate in the hands of my said executors to be disposed of as she might direct by will,” etc.

In determining the validity of limitations of estates under the Revised Statutes, as said by Judge Grover in 41 N. Y., 328: “It is not sufficient that the estates attempted to be created may, by •the happening of subsequent events, be terminated within the prescribed period, if such, events might so happen that such estates might extend beyond such period. In other words, to render such future estates valid, they must be so limited that in every possible contingency they will absolutely terminate at such. period, or such estates will he held- void.” Haynes v. Sherman, 117 N. Y., 433; 27 St. Rep., 254.

It has repeatedly been held, that .the period of suspension must depend upon lives. Every suspension for a definite or indefinite period, however short, is void.

If the court were at liberty to make a will other than the testator himself made, it might indulge in a construction which would give a meaning to the sixth clause holding that the trust is one for the life of Daniel as to the whole fund, and then a trust as to one-half of the fund for each girl for life, and then the entire fund to vest.

It is evident, however, that the period of the minority of Daniel, as said in Titus v. Weeks, 37 Barb., 136, “is not a minority dependent upon life, but is a definite term extending until the time when the minority would terminate, or, in the event of his death, would have terminated The name and the minority are used in this will' simply to indicate the period of distribution and as a measure of time. It is plain that the testatrix had in mind a definite period during which she desired her nephews to receive the income, and that she also intended that the final distribution of her estate should not take place until the, end of that period. It would be doing violence to her intention, and to the whole structure of the will, to hold that all its provisions should be changed, and the distribution of her estate accelerated by an event she does not seem to have contemplated.”

This language is equally applicable to the will under consideration.

The suspension, therefore, attempted by the sixth clause, having been not for a life or lives, but for a definite period, the whole disposition of the estate made by the will is void.

There should be a decree accordingly.

We fully concur in the views expressed in the foregoing opinion, and therefore affirm the judgment rendered at the special term.

Van Brunt, P. J.—I

concur in the result. It is apparent from a reading of the will in question, whether the subject matter of the trust is to be considered as real or personal estate, the trust is to continue as to the whole of the estate as long as any of the children remain minors. Because if the youngest son dies before attaining the age- of twenty-one years, and during the minority of the other children or any of them, the trust for the sons continues until all the-minorities of the sons cease and after that the final distribution of the estate is dependent upon the life of a sister.

Thus if Daniel should die during his minority, and before James, William and Hugh had become of age, the trust must continue during the minority of each of these or until all had died during minority, or had attained their majority; and also until the death of one of the daughters before a distribution could be had of any part of the estate.

It might happen, therefore, that five lives must terminate before distribution; a clear violation of the statute.  