
    Lydia Haberle Schlereth, Individually and as Executrix and Trustee under the Last Will and Testament of Peter Fuchs, Deceased, Respondent, v. Lydia Mathilda Schlereth, Respondent, Impleaded with Susanna Dietrich and Others, Appellants.
    
      Trust to pay over income to a daughter for life and, to her children until theyoungest is twenty-one ; in case she leaves issue, hut none of them reaches the age of twenty-one, then to divide the principal of the trust among others — it is valid, only to the extent of the da/ughter’s life estate.
    
    A testator, by the terms of his will, gave his residuary estate to his executors with directions to convert the real property into personal property and to hold the entire fund in trust for the following purposes: To pay the income therefrom to his daughter Lydia Haberle during her natural life, and, “VII. After the death of my said daughter Lydia Haberle leaving issue born in lawful wedlock, I direct my trustees to pay over the said income to such issue in equal shares, each share and share alike, until the youngest of such issue shall have attained the age of twenty-one years, and then to divide and distribute the whole trust fund so held in trust among such issue in equal shares, each share and share alike.
    “ VIII. In case my said daughter dies without leaving issue bom in lawful wedlock, I direct my said trustees to pay over the whole trust fund then held by them unto the children of my brother-in law Johann Jacob Dietrich * * * of Germany, * * * and unto the children of my sister Elizabeth Lenz, deceased, * * * of Germany, in equal shares, each share and share alike.
    “IX. In case my said daughter dies leaving issue, but none of such issue should reach the age of twenty-one years, I direct my trustees to divide and distribute the whole trust fund among the persons and in the manner mentioned under subdivision VIII of this my last will and testament.”
    In an action brought by the daughter, who was married at the time of the testator’s death, it appeared that she had had born to her three children; that two of such children were dead and that the surviving child was an infant.
    
      Held, that as the direction contained in the 7th clause of the will was to pay over the income of the trust estate to the issue of the testator’s daughter in equal shares until the youngest of such issue should attain the age of twenty-one years and then divide the whole fund in equal shares among such issue, and as by the provisions of the 9th clause if none of the issue of the testator’s daughter should reach the age of twenty-one years, the executors were directed to divide and distribute the trust fund among the persons named in the 8th clause of the will, no title vested in the children of the testator’s daughter until the youngest reached the age of twenty-one years;
    That, consequently, the 7th and 9th clauses were repugnant to the statute of accumulation in that they suspended the absolute power of alienation beyond two lives in being;
    That the persons mentioned in the 8th clause of the will would not take title, except upon the happening of the two contingencies provided for in the 7th and 9th clauses of the will, and that, as these clauses were void, the 8th clause was also void;
    That the life estate given to the testator’s daughter was not dependent upon the other provisions of the will and was valid, but that as to the rest of the property the testator died intestate.
    Laughlin, J., dissented on the ground that the 8th clause was valid.
    Appeal by the defendants, Susanna Dietrich and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of April, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, construing the will of Peter Fuchs, deceased.
    Peter Fuchs died in the city of New York on the 29th day of December, 1898, leaving plaintiff, his daughter, his only child and sole heir at law and next of kin. By the terms of his will and codicil his daughter and one other were therein named as executors and trustees; the will was duly admitted to probate in the city of New York, the plaintiff alone qualifying as executrix and trustee, the other executor and trustee refusing to act. This action is brought for the construction of certain portions of the will. The estate of the testator consisted of both real and personal property. After bequeathing certain personal property to the plaintiff the will gives all the rest and residue of the personal property and all the real property to the executors and trustees therein named in trust, with direction to allow the plaintiff to occupy the dwelling at No. 77 Seventh street, rent free, and upon her giving up her residence therein, to sell said premises and dispose of the proceeds in the manner hereafter provided for the disposition of the residuary estate. To sell and dispose of the residuary estate, both real and personal, retaining such of the personal estate as may consist of mortgages as investments, and after payment of debts to hold the proceeds derived from the sale of the real and personal property, and the mortgages retained as investments with power of reinvestment of the same, in trust for the following purposes: To pay the income therefrom to the plaintiff during her natural life.
    “ VII. After the death of my said daughter Lydia Haberle leaving issue born in lawful wedlock, I direct my trustees to pay over the said income to such issue in equal shares, each share and share alike, until the youngest of such issue shall have attained the age of twenty-one years, and then to divide and distribute the whole trust fund so held in trust among such issue, in equal shares, each share and share alike.
    “ VIII. In case my said daughter dies without leaving issue born in lawful wedlock, I direct my said trustees to pay over the whole trust fund then held by them, unto the children of my brother-in-law Johann Jacob Dietilch * * * of Germany, * * * and unto the children of my sister Elizabeth Lenz, deceased, * * * of Germany, in equal shares, each share and share alike.
    “ IX. In case my said daughter dies leaving issue, but none of such issue should reach the age of twenty-one years, I direct my trustees to divide and distribute the whole trust fund among the persons and in the manner mentioned under subdivision VIII of this my last will and testament.”
    After testator’s death the plaintiff gave up her residence at No. 77 Seventh street and the property was sold as was all the other real property except one lot and the proceeds thereof became part of the trust fund.
    
      The plaintiff was married to Dr. Schlereth on November 17,1895. She has had the following issue: Irene Schlereth, born April 16, 1897, died September 16, 1897; Lydia Mathilda Schlereth, born February 13, 1899, still living ; Edgar Schlereth, born February 3, 1901, died August 14, 1901. The said infant Lydia Mathilda Schlereth is made a party defendant to this action as are all the children of the brother-in-law and sister mentioned above.
    The plaintiff contended at the trial that the will should be construed as follows: That the whole estate should be _treated under the laws governing personal property, as the will directed the trustees to convert the real property into personal; that the trusts attempted to be created therein, with the exception of the trust created for the life of the plaintiff, are illegal and void, because they unlawfully suspend the absolute ownership of the testator’s property ; that the testator created a valid trust for the life of the plaintiff in his real and personal property, but otherwise died intestate as to said real and personal property; that by reason of such intestacy the real and personal property of the testator vested at his death in the plaintiff, his sole heir at law and next of kin, subject only to said trust for the life of the plaintiff.
    The contentions of the plaintiff were sustained by the court below, and from the judgment entered thereon all the remaindermen have appealed except the defendant Lydia Mathilda Schlereth, who does not dissent from the contentions of the plaintiff.
    
      A. B. Porter, for the appellants.
    ■ Isaac Moss, for the plaintiff, respondent.
    
      Devoid B. Luckey, guardian ad litem, for the defendant, respondent Schlereth.
   Hatch, J.:

It is not contended by any of the parties to this appeal but that the will, which is the subject of construction, worked an equitable conversion of the testator’s real property into personalty. Such is clearly the effect of the provisions of the will, and, therefore, the same is to be construed by the rules applicable to the bequest of personal property. The real question which the case presents is, whether the gift over to the children of the testator’s brother-in-law and the children of a sister, all living in Germany, is so dependent upon the validity of the 7th and 9th clauses of the will that if the latter be held void as repugnant to the Statute of Accumulations, the former must fall therewith. There can be no doubt, we think, but that the bequests provided for in the 7th and 9th clauses of the will are void as being in contravention of the statute. If the language of the will vested an estate in the children of the testator’s daughter at her death, then the provisions of the will would be clearly valid as the absolute ownership would not be suspended beyond two lives in being at the date of the death of the testator, even though there was postponement of distribution until the youngest of such children should become twenty-one years of age. Such, however, are not the provisions of this instrument. The direction contained in the 7th clause of the will is to pay over the income of the trust estate to the issue in equal shares, each share and share alike, until the youngest of such issue shall have attained the age of tmenty-one years, and then to divide and distribute the whole fund in equal shares, and by the 9th clause, in case the daughter died leaving issue, but none of such issue should reach the age of twenty-one years, then the direction was to divide and distribute the whole trust fund among the persons named in the 8th clause of the will. Therefore, by virtue of these provisions, it is evident that no title vested in the children until the period of distribution arrived, and the time when the title vests is the determining rule of construction under the statute. The gift over to the persons named in the 8th clause of the will became vested at the earliest moment when title to the property could vest under the terms of the will, and this carried it beyond two lives in being, and was, therefore, within the clear prohibition of the statute. It is also evident from the terms of the will that the persons mentioned in the 8th clause were not vested with any title to the property, nor could they take any title or interest therein except upon the termination of the two contingencies provided in the 7th and 9th clauses of the will. The 8th clause, by the terms of these two clauses of the will, was dependent upon the contingencies therein provided, as no title could vest until they had happened. It seems to follow, therefore, that as the testator made provision for the suspension of the absolute ownership of the estate bequeathed dependent upon the surviving of issue of the daughter to twenty-one years of age, he was without power to give further directions concerning the disposition of title to the property beyond this period. Each one of these questions seems to have been clearly and authoritatively determined in Greenland v. Waddell (116 N. Y. 234).

There, as here, the gift over was to certain named persons after the suspension of the power of alienation for two lives, and it was held that the persons to whom the bequests were made took no title or interest in the estate; that the will was void, and that the testator died intestate with respect to such property. There, as here, the direction contained in the will as to the vesting of the estate was made dependent upon the time when the distribution was to take effect, so that in all substantial respects, and clearly so, for all the purposes of construction, the present will is like the will then before the court. The decision is, therefore, controlling. The life estate provided for in the will is not dependent upon the other provisions of the will. (Adams v. Berger, 18 N. Y. Supp. 33.)

It follows that the decision of the trial court was correct and the judgment entered thereon should be affirmed, with costs to the respondent payable out of the estate.

Patterson, O’Brien and McLaughlin, JJ., concurred; Laughlin, J., dissented.

Laughlin, J. (dissenting):

I consider the 8th clause of the will valid, and, therefore, dissent.

Judgment affirmed, with costs to respondent payable out of the estate.  