
    Sylvanus Finch, as Executor, Plaintiff, v. Elizabeth P. Wilkes et al., Defendants.
    (Supreme Court, Albany Special Term,
    June, 1896.)
    Will — Trust — Suspension oí alienation. • ..
    By the will, of testator the use of .a certain house was given, to testator’s sister ¿fid brother, and after their deaths the rest and residue of the estate was directed to be held by the executors for the benefit . of. two- grandchildren until the youngest arrived át the age of twenty, five years, when- it was devised to said grandchildren or the survivor.
    • By a codicil the residue of the property not affected by the. will was given to the executors to pay taxes, repairs and insurance, and to be otherwise used for ¡the benefit of said sister'and brother. Held, that the attempted trust in favor of the grandchildren was void as unduly suspending the power of alienation,, but that as they - were the sole heirs and next of kin, they took a vested remainder in the real estate and were entitled to the balance- of the personalty remaining unexpended at the death of. the life tenants.
    - Actios for construction of will;
    Mead, Hatt’ & Paliner, for plaintiffs.
    Pratt & Logan, for defendant Wilkes.
    ■ S. J. Hull, for defendants Smith.
    Dyer & Ten Eyck, for defendants Palmer.
    ' John T. McDonough,. guardian ad litem, ion defendant De Pew.
   , Ohesteb, J.

The plaintiff has brought this action to procure .a judicial construction of the will and codicil of Huth P. Haynes.

The will was dated October 25, 1878, and the codicil April' 27, 1879. They were admitted to probate June 6, 1879.

The will first contains a bequest of all household -furniture and property that may be in the residence of the testatrix at the time of her death to her brother,-Ira W. Palmer, and to her .sister, Elizabeth P. Wilkes,' and then contains the following"provision:

Item 2d.' I give and bequeath to my-brother, Ira W. Palmer, and to my,sister? Elizabeth P. Wilkes,- the use' and occupation of'niy house No. 46 Chapel street, or the income derived from its sale, if my executors shall decide to sell the same, and to invest the proceeds so as to produce an income of interest, or the use and occupation of another house, if they shall decide to invest the money, during their natural lives, and in the event of the death of either, then the survivor shall be entitled to the use of the same during his or her natural life. The rest and residue of my estate, after ' the death of my brother Ira and sister Elizabeth, I direct shall be held by my hereinafter-named executors, or the survivor, and their successors, for the sole benefit of my two grandchildren, Almira M. and Loren V. Smith, until Loren arrives at the age of 25 years, at which period I devise it to them or the survivor absolutely. In case both should die before arriving at the age of 25, then I direct the property to be equally divided, one share to be delivered to the heirs at law of my brother Asa, and the other to the heirs of my brother L’a W. Palmer.
“ I hereby constitute and appoint Ira W. Palmer and my sister Elizabeth P. Wilkes, of Albany, New. York, and Sylvanus Finch, of New Brunswick, in the State of New Jersey, my executors and trustees of this my last will and testament, with full powers to sell and convey and invest the proceeds of the estate at their .discretion.”

The codicil contains a direction to the executors to pay funeral expenses, and also contains bequests of specific articles to each of her two grandchildren,' and then concludes with the following provision:

“ Fourth. I further will or leave in the hands of my heretofore-' named executors, Elizabeth P. Wilkes and Sylvanus Finch, the residue of my property not otherwise disposed of in my foregoing will, to dispose of as I hereby direct, to pay the taxes on the house arid lot they are to have the use of, arid to make such repairs as they think necessary, and pay insurance, and to otherwise make use of for the individual use of my sister Elizabeth P. Wilkes and my brother Ira W. Palmer.”

The testatrix died May 12, 1879. The plaintiff alone of those named as executors in her will qualified as such. The brothers Asa and Ira W. Palmer and the sister-Elizabeth P. Wilkes named in the will each survived the testatrix, but the two brothers died before the commencement of this action.

The grandchildren of the testatrix, Almira M. and Loren V. Smith, are her only heirs at. law and next of kin. The former has arrived at the age of 25; the latter will not be 25 until November, 1897.

The only estate of the testatrix at the time of her death was the house No. 46 Ohapel street^ Albany, mentioned in the will, and a. small amount of personal property. -

The executor has not exercised the power of sale given to him in the will, so there is no question to be determined with reference to the clause permitting a reinvestment of the proceeds of a sale.

It appears by the will that the testatrix, after making a specific bequest of some personal property, created a life, estate for the lives of her brother and sister in her house No. 46 Chapel street. She then directs that the rest and residue of her estate, after the death of her brother and sister, shall be held by her executors for the sole benefit of her two grandchildren, Almira M. and Loren V. Smith, until Loren arrives at the age' of 25 years, at which period she devises it to them or the survivor absolutely.

It is claimed that this is an unlawful suspension of the power ‘ of alienation.

By the Revised Statutes future estates in lands which suspend the absolute power of alienation beyond two lives in being and a minority, and future interests in personal property which suspend such alienation for more than two lives in being, are void. 2 R. S., 723, §§ 15 and 16, as to real property; 2 R. S. 773, § 1, as to personal property; Manice v. Manice, 43 N. Y. 303, 382.

The duration.of the suspension must be measured by existing lives and not by a fixed period. The statute is plain in this respect ' and the cases are uniform in so holding.

So far as the house is concerned, the provision to hold it for the benefit of the grandchildren until Loren arrives at the age of 25 ■ years -— being for a fixed period added to the trust for the benefit of the brother and sister during their lives — is repugnant to the statute against perpetuities and cannot stand.

I think the same is true of the personal estate that ■ enters into the residue, for the reason that the language used by. the testatrix in the will and the codicil makes it clear that she intended to create a trust in her personal as well as in her real estate during the lives of her brother and sister. She 'directs in the will that the residue after the death of her brother and sister shall be held by her. executors for the benefit of her two grandchildren, as above stated, and in the codicil she leaves in the hands of her executors the residue of her property not otherwise disposed of by her will to pay taxes on the house and lot - and to pay for repairs and insurance “ and to otherwise make use of for the individual use of ” her brother and sister. ■

It is probable that the omission by the testatrix in her will to make any bequest of the use of her personal estate to her brother and sister for life, except by implication, was the reason for the provision in the codicil above referred to. When the will and codicil are considered together the intent of the testatrix to also create a trust in her personal estate for the benefit of her brother and sister is apparent.

If this construction is correct, the trust to hold the personal property as well as that to hold the house until Loren — the youngest of her two grandchildren — arrives at the age of 25 years must, fail also-.

While this conclusion results in defeating the provision of the will, that the executors shall hold the residue until the youngest of the two grandchildren of the testatrix arrives at the age of 25, it happens in this case that it will not materially interfere with her desires as expressed in the will, for the reason that her. sole heirs at law and next of kin are the two grandchildren in question, and it is not of much moment whether the latter take the estate under the provisions of the .will or as heirs at law and next of kin.

The trust for the benefit of the- life tenants is entirely separate and distinct from that attempted to be created for the benefit of the grandchildren, and while the latter falls, it does not stand in the way of the execution of the former. Kennedy v. Hoy, 105 N. Y. 134; Underwood v. Curtis, 127 id. 542; Brown v. Richter, 76 Hun, 469.

It is difficult to determine from the language employed whether or not the testatrix intended to give to her brother and sister anything more than a life estate in the personal property, but a careful study of the will and .codicil leads me to the conclusion that it was her intention not to limit the trustee to expending only the income of the personal property for the benefit of the life tenants.' In the codicil, which I think was made because of the failure in the will to expressly dispose of the income of the personal estate, the testatrix places in the hands of her executors the residué of her property not otherwise disposed of in her will. She then authorizes them to pay the taxes on her house and lot, to make such repairs as they think necessary, and to pay insurance. There is nothing limiting the amount of these expenditures by the amount of the income. She also authorizes the executors “■ to otherwise make, use of (this residue) for the individual use of” her sister - and brother. The brother is dead, the sister survives. I think the intent is to give the executors a discretion as to what amount they shall devote to the individual or personal use' of the surviving sister as well as' to ■ what amount they shall expend in repairs, which is not'limited by the amount of the income.

I think that the heirs of Ira and Asa Palmer, the brothers of testatrix mentioned in the will, have at the present time no.interest, and never can have, in the estate, for the reason that one of the grandchildren is now over 25) and it was' only in case both grandchildren should die before arriving' at the age of 25 that the property was to be divided equally and one share given to the heirs of each brother. Notwithstanding this, these heirs were proper defendants. in this action,' that they might be heard, if they desired, upon the proper construction of this portion of the will which affects their interests.

. It follows that the grandchildren, Almira M. and Loren V. Smith, have vested remainders as .the sole heirs at law of Mrs. Haynes in'the house and lot, and entitled to possession thereof in fee upon the expiration of the life estate therein of the surviving sister, Mrs. Wilkes, and that' they are entitled, at her death, as next of kin of Mrs. Haynes, to what remains unexpended of the personal ■ property in the hands; of the executor or trustee after paying the expenses of the trust, and, of course, in case the executor should exercise the power of sale of the real estate, Mrs. Wilkes and the grandchildren would, respectively, have the. same interests in the proceeds or in anything the proceeds should be invested in which they now have in the house and lot.

The. decree will be settled on two days’ notice, and at the time of settlement the question of costs will be considered.

Ordered accordingly.  