
    In the Matter of the Judicial Settlement of the Account of Percy Hinchman, as Administrator with the Will Annexed of George W. Hinchman, Deceased, Respondent. Georgena Ferry and Others, Appellants; Mortimer L. Hinchman, Respondent.
    Second Department,
    November 18, 1910.
    Will construed — trust not unlawfully suspending power of alienation, '
    A testator having given his widow the income from his entire estate for life, on her de'ath bequeathed the entire estate in .trust to be divided into three equal shares. The will provided that-the income from two of the shares was to be paid to W. A. and D., two sons of the testator, for their lives, with remainders ■ over to their issue respectively,. The income from the third share was directed to be paid to G. W., a son of the testator, and to his grandchild William, the son of G. W., in equal proportions during the life of G. W., and on bis death the remainder to be paid to the grandchild. It "was further -provided that should Q-. W. survive his son William the former was .to receive the whole income of the share-for life, and should either W. A. “ and ” D. die without issue and should Gt. W. die without his son William surviving, in that event'the share of which such deceased received the income should be paid to the survivors or survivor; the issue of either of the sons W. A. and D., if deceased, however, to receive the share to which the parent would be entitled if living, and- the grandson William to receive the share to which his father would have been entitled if'living.
    
      Held, that there was no'suspeusion of the power of alienation or of the absolute ownership of personal property for more than two lives in being, as each of the trusts must terminate on the death of the life tenant and pass to certain prescribed though contingent remaindermen;
    That, although the testator in the last clause of his will spdke of W. A. “and” D. dying without issue, the word “ and ” was intended to he used in a dis- . junctive.sense and should be so construed-. ■ .
    Where there are two possible constructions of the language of a testator that will be adopted which will uphold rather than destroy the will.
    ' Appeal by Georgena Férry and others' from a decree of the Surrogate’s Court of Queens county, entered in said. Surrogate’s ■ Court on the 3d day of May, 1909. .
    
      Charles E. Hunter, for the appellants.
    
      Learider B. Faber, for the respondent Percy Hinchman. ,
    
      Frank 11. Platt, for the respondent Mortimer L. Hinchman.
   Care, J.:

This is an appeal from a decree of the. Surrogate’s Court óf Queens county settling the accounts of an administrator with a will annexed and providing for the distribution of the- estate. The only ■ question brought up ■ for consideration on this appeal arises from the interpretation of certain trust clauses in the will. The testator provided first that his widow should have the interest and income of his entire estate- for life. On her death he bequeaths and devises his-entire estate in trust to his executors. He directed the division - of the estate into three' equal shares. Then he. provides ' that- as to two of these equal shares the income from each share should-be paid-to his sons William A. and Douglas Hinchman, respectively, during their lives, with the remainders over. to their issue, respectively. The income on another share he directs to be paid to his son George W.,-and. bis. grandchild,, the son of - George'W., in equal portions during the life of George W., and on the death of George W. the remainder is to be paid to the specified grandchild, whom, the testator calls “ William.” Realizing that there would be an intestacy in case the life tenants were not survived in each case by the designated remaindermen, that is, the issue of'the sons of William A. and Douglas and the grandson, William, respectively, he set out to provide for such contingencies in the following language: “Should my said son George W. survive his said son whom'I call William, then he said George W. is to receive the whole income of said share during his natural.life, and should either of my said sons William A. and Douglas die without leaving lawful issue, and my said son George W. die without leaving him surviving his said son whom I call William, then and in that event, the share of which siich deceased received the income shall be paid to the survivors or survivor, the issue of either of my sons William A. and Douglas, if deceased, however, to receive the share to whicli the parent would be entitled if living, and the said son whom I call William, of my son George W. to receive the share to which said George W. would be entitled if living.”

The appellants contend that the foregoing provisions constitute . an illegal suspension of the power of alienation or of the absolute ownership of the personal property for more than two lives “in .being,” and that the trusts created by the will are, therefore, void. It is perfectly plain that there is no suspension of the trust estates for more than two lives “in being,” as each of the trust estates terminated necessarily on the death of the life tenant, and passed to certain prescribed, though contingent, remaindermen. The scheme of the will is simple enough. • If either of his sons, William A. or Douglas, died without issue, then the remainders in the separate trusts held for their respective benefits would go to the survivors or the survivor of the three brothers, with the qualification, however, that if one or other of these, who might have been survivors, had died leaving lawful issuer then that issue were to have by substitution the rights which their parent would have had had he survived. . As to the son George W., however, the testator had a special purpose, for he expressly limited the remainder of that separate trust estate to one person only, the grandson, called William, and to this person alone he limited the right of substitution as to survivorship which would have accrued to George Wl.if alive. .It whs the apparent motive to exclude from any share.Of his estate any issue which George W. might have except the.son called “William,” and.hence the, seemingly involved provision. The intent, however, is clear enough.. Under these provisions it would have been impossible for any one of these- trust estates to have been suspended beyond the death of the life tenant,.and hence there was no unlawful suspension.

Of. course, at the time of the- death of the testator^ there was an uncertainty as to just which persons might- be in being to' take af the termination, of each of the' separate trusts, and the remainders limited were c'onlingent in nature, but there- was no - uncertainty Whatever about the time of the termination of each of the three . separate trusts as. being.on the death of each of the three separate life tenants. .

The whole argument of the appellants proceeds apparently upon a confusion of ideas. If the whole estate was to-be held in trust in sólido, instead, of in three equal shares* then, there would be some basis for their contention. ' They urge, however, that the use of the Gord “ and,” in'the- sentence, which- reads as follows, “ should either . of'my said sons William A. and Douglas die: with out leaving lawful. issue, and- my said son George W. die without-leaving him surviving his said son whom I call William,”- indicates a purpose’ upon-the part of the testator to suspend the absolute ownership of the .shares held in trust during the- lives of the other two sons upon the contingency of the death in the meantime of the son George W. without leaving him surviving his son, called William. To adopt' this construction would be to render the trust void as suspending the absolute ownership -for three lives. (Ward v. Ward, 105 N. Y. 68.) To give to the testator’s language ■ this meaning because he-used the word “ and” in the connection above noted, would be wholly inconsistent, with the plain ' scheme of the will' as a:-whole. It was used clearly in a disjunctive sense,,'as is quite common both in spoken and written language'.- ■ Do court would resort to over-literalness -simply to destroy a testamentary provision. -Where the word “ arid’’appears from, the context to have .been used in the sénse of the word' “.or,” a court will so interpret-it, whether it be in a will or a statute. (Scott v. Guernsey, 48 N. Y. 106.)

It is a well-settled rule of interpretation of wills that even where tlieré are two permissible constructions of the language of'the testator, that will be adopted winch Will uphold rather than destroy' the will. (Jacoby v. Jacoby, 188 N. Y. 124, 130; Matter of Lally, 136 App. Div. 781.)

The decree of the Surrogate’s Court .should' be affirmed, with cogts. . '

"Woodward, BurR, Thomas .'and Rich, JJ., concurred.

Decree of the Surrogate’s Court of Queens county affirmed, with costs. . ' ' '•  