
    In the Matter of the Probate of the Last Will and Testament of William E. Trumble, Deceased. Trust and Deposit Company of Onondaga and Others, Appellants, Respondents; George D. Read and Others, Respondents.
    Fourth Department,
    March 29, 1910.
    Will—trust construed. — bequest of income to surviving sisters and to the heirs of such as die — trust for heirs of sisters offends statutes against perpetuities — trust for sisters not void — separation of legal from illegal trusts — subjects of illegal trust pass as unbequeathed . assets.
    Where a .testator after giving a life estate to one sister with remainder to her children, provides that the residue of his property be converted into cash and ' deposited by the executors in banks paying interest, such income to be paid to such other sisters of the testator as are living at his death at the rate of forty dollars per month to each until such moneys and interest are fully paid to them, with a'further provision that if any of the surviving sisters die before the fund is fully paid out, the executor shall pay to her heirs the monthly sum of forty dollars until the same is fully paid out, the provision in favor of the heirs of a deceased sister is void as offending the statute against perpetuities.
    But the provision for the sisters, as distinguished from the provision for their heirs, is not void in that there is no creation of a common fund in which they have a joint interest with the right of survivorship; but on.the contrary, an independent trust is created for each sister, and the illegal provision in favor of the sister’s heirs may be disregarded as the two provisions are independent. As the provision for the heirs of deceased sisters is invalid any fund left on the' ■ death of a sister should be distributed as unbequeathed assets.
    McLennan, P. J., and Robson, J., dissented, with opinion.
    Separate appeals by the Trust and Deposit Company of Onondaga, proponent, and by Amanda F. 'Parldmrst and others, contestants, from parts of a decree of the Surrogate’s Court of the county of Oswego,' entered in said Surrogate’s Court on the 28th day of October, 1909, construing the will of William E. Trumble, deceased.
    The controversy is over the construction and effect of the 4th and 5th clauses of the will of William E. Trumble, late of the .city of Oswego, which are as follows:
    
      “Fourth. I give and bequeath all the rest, residue and remainder of my estate, if any, to be paid out as set forth in this paragraph of this, my last Will and testament, equally to stich of my sisters, Amanda F. Parkhurst, Waty A. Hodgerneyj Eebecca J. Dalrymple, Fanny M. Tyler and Mary B. Draper, as are living at the time of my death.
    
      “ I hereby direct my executor, hereinafter named, to convert my estate which has not been disposed of by this will, into money and deposit the same in banks or trust companies paying interest on deposits, and to pay therefrom monthly to such of said sisters named in this paragraph of this will as are living at the time of my death the sum of forty dollars to each until such moneys and interest, are fully paid out to them.' '
    
      “ In case one or more of my sisters named in this paragraph of my will shall survive me, but shall die before said fund is fully paid out, then in that case from that time on, I direct my executor here7 inafter named to pay to the heir or heirs of such sister, except the heir or heirs of my sister, Amanda F. Parkhurst, the monthly sum of forty dollars until said fund is fully paid out; it being my intention and direction that the said heir or heirs, except the "heir or heirs of Amanda F. Parkhurst, shall be substituted in the place of said sister ■ and receive the said sister’s payment of forty dollars per month, and said forty dollars per month shall be divided among the heir or heirs of such sister in the proportion prescribed by law for the division of personal property among heirs of a deceased person. And in that event to that end, I hereby give and bequeath to such heir or heirs the sum or sums which he or they shall be entitled to receive under this fourth paragraph of my last will and testament except the heir or heirs of Amanda F. Parkhurst as stated above.
    
      “ Fifth. I expressly declare that it is my intention in this my last . will and testament, that any relative or relatives of mine not named in this last will and testament shall under no circumstance have any part of my estate unless that it may be that a relative or relatives may receive a part of my estate as provided in the fourth paragraph of this will as heir or heirs of one of the beneficiaries named in said paragraph.”
    The testator left as his only heirs at law and next of kin the six sisters named in the will, five nephews and a niece, children of a deceased sister, and another niece, a child of another deceased sister. There are twenty-four other relatives of the testator who might take a possible contingent interest in the testator’s estate under the 3d subdivision of the 4tli clause of the will.
    The only specific devise or bequest contained in the will is the sum not to exceed fifty dollars for a headstone, and the two farms to the sister, Emma A. Tyler, for life, and after her death to her children in fee; with a further provision that if the farms had been sold by him before his death, then his sister, Emma A. Tyler, should have an equal share in his estate with, the other sisters mentioned in the 4th clause of the will, as were living at the time of his death. The value of. the property attempted to be disposed of by the 4th clause of the will is upwards of $30,000.
    
      James & Thorny for the appellant, respondent, the Trust and Deposit Company of Onondaga.
    
      B. O. Turner, for the appellants, respondents, Waty A. Hodgerney and others.
    
      Claude B. Alverson and B. C. Emerson, for the respondents George D. Eead and others.
    
      Joseph T. McCaffrey, for the respondent Jennie V. Lally.
   Kruse, J.:

The question presented by the clauses of the will in controversy is not over what disposition the testator intended to make of his property, but whether his intentions can be carried into effect without offending the statutes against perpetuities.' It is very plain that what was uppermost in his mind was to provide for his sisters. He gave the life use of his two farms to his sister Emma, with remainder in fee to her children; and the other five sisters were provided for by the 4th clause in the will, and included his sister Emma if he sold the farms. All the rest of his property was directed by the 4th clause to be converted into money and deposited in banks and trust companies paying interest on deposits; and in substance he directed that forty dollars be paid monthly to each sister during her life, and upon her death the like monthly payment to her heirs, except the heirs of his sister Amanda.

If the 4th clause of the will creates but a single, indivisible trust, it is clearly in contravention of the statute against perpetuities and invalid since it suspends the absolute ownership of the trust property for- more than two lives in being at the death of the testator. (See Pers. Prop. Law [Consol. Laws, chap. 41,;. Laws of 1909, chap: 45], § 11.) I do not see how the provision in favor of the heirs of the sisters can be upheld in any view of the cáse.

But it does not necessarily follow that the provision for the sisters-is illegal also. The fund is.not a common fund in' which the sisters have a joint interest,, so that in the case of the death of one or more, the surviving sisters are entitled to use what is left of the fund to make the monthly payment of forty dollars to each of the survivors ; but it is provided that the heirs of the one so dying, (except Amanda’s heirs) are to be substituted in her place, and to receive her monthly payment of forty dollars. I think that although the monéys may be kept together in one fund there is an independent trust created for each of the siSters, and that the illegal provision in favor of the heirs of the sisters may be disregarded. The trust in favor of each sister is entirely independent of the provision for her heirs, and does .not depend upon the validity of the disposition made of what remains of the fund after her death.

• The rule is tersely stated in the head note to the case of Van Schuyver v. Mulford (59 N. Y. 426) as follows: “ Where an estate is vested under a will in a trustee, upon several independent trusts, one or more of which are valid and the others void, the latter will be rejected and the estate of the trustee will be upheld to the extent necessary to enable him to execute the former.”

This rule, in principle, has been applied in many cases. It is sufficient to call attention to only a few of them. (Kennedy v. Hoy, 105 N. Y. 134; Underwood v. Curtis, 127 id. 523; Hascall v. King, 162 id. 134, 152; Robb v. Washington & Jefferson Col lege, 103 App. Div. 327, 355 ; 185 N. Y. 485, 495.) The primary object of the trust was to provide for the sisters, and 1 think under the rules to which I have adverted the provision in their favor should be sustained.

As regards the 5th clause of the will, I think the learned surrogate correctly decided that that provision did not affect the right of any of the heirs at law or next of- kin of the testator in respect of property not effectually disposed of by the will: What remains of the trust funds after the death of the sister beneficiaries should be distributed as unbequeathed assets. The rule in such case is quoted and reaffirmed in Pomroy v. Hincks (180 N. Y. 73, 75) as follows : “ It is a settled principle of law that the legal rights of the heir or distributee, to the property of deceased persons, cannot be defeated except by a valid devise of such property to other persons. * * * It was not sufficient to deprive an heir at law or distributee of what comes to him by operation of law, as property not effectually disposed of by will, that the testator should have signified his intention by his will that his heir or distributee should not inherit any part of his estate.”

It follows that the decree of the surrogate should be modified by adjudging that the provision for the sisters contained in the 4th clause of the will is valid; that an independent trust is created thereby, as therein provided,for the benefit of each sister; that the provision therein contained for the heir or heirs of any sister therein named is illegal and void; and that the property embraced therein, remaining after the death of any such sister, is not disposed of by said will, and passes and should be distributed to the persons entitied thereto as provided by law in case of intestacy; and as so modified the decree should be affirmed, with costs to each of the parties or set of parties appearing by separate attorneys, payable out of the estate.

. All concurred, except McLennan, P. J., and Hobson, J., who dissented in an opinion by McLennan, P. J.

McLennan, P. J. (dissenting):

The material facts, which are not in dispute, are stated with sufficient detail in the opinion tif brother Kruse. As therein suggested, the important question to be determined upon this appeal ' is: Did the testator by the 4th paragraph of his will create a single trust or five independent trusts, it being conceded that if only one trust was created all the provisions of such 4th paragraph are void and that the testator died intestate as to all,the property sought to be disposed of under such paragraph ?

The 1st clause of such 4th paragraph is as follows:

• “Fourth. .1 give arid bequeath all the rest, residue and remainder of my estate, if any, to be paid out as set forth in this paragraph of this, my last will and testament, equally to such of my sisters, Amanda F. Parkhurst, Waty A. Hodgerney, Rebecca J. Dairymple, Fanny M. Tyler and Mary B. Draper, as are living at the time of my death. I hereby direct my executor, hereinafter named, to convert my estate which has not been disposed of by this will, into money and deposit the same in banks or trust companies paying interest on deposits, and to pay therefrom monthly to such of said sisters named, in this paragraph of this will as are living at the time of my death the sum of forty dollars to each until such monies and interest aré fully paid out to them.”

In the next clause of such 4th paragraph it is provided as follows:s “In-case one or more of my sisters named in this paragraph of my will shall survive me, but shall die before said fund is fully paid out, then in that case from that time on, I direct my executor hereinafter riamed to pay to the heir or heirs of such sister, except the heir or heirs of iriy sister Amanda F. Parkhurst, the monthly sum of forty dollars until' said fund is fully paid out; it being my intention and direction that the said heir or heirs, except the heir or heirs of Amanda F. Parkkurst, shall be substituted in the place of said sister, and receive the-said sister’s payment of forty dollars per month,, and said forty dollars per month shall be divided among the heir or heirs of such sister in the proportion prescribed by law for the division of personal property among heirs of a deceased person. And in that event to that end', 1 hereby give and. bequeath to such heir or heirs the. sum or sums which he or ■ they shall be entitled to receive under this fourth paragraph óf my last will and testament, except the heir or heirs of Amanda F. Parkhurst as stated above.”

There can be no doubt — indeed' it - is conceded — that the testator’s residuary estate was bequeathed to his executor to be disposed of in the manner above directed. Was such directed disposition void because it prevented the distribution of the corpus of the trust fund or residuary estate for more than two lives in being and in violation of the statutes relating to perpetuities \

Concededly, if force and effect is to be given to all the provisions of paragraph 4, it is void, because clearly it provides that such forty dollars per month made up of income and principal shall be paid to each of the testator’s sisters during their natural lives ; ánd in case one of such sisters dies leaving issue, such amount shall be paid to such issue, share and share alike. So that it is apparent that if force and effect be given to all the provisions of such paragraph 4, the trustee might be required to retain the corpus of the trust at least until the youngest child of the sister last deceased had reached its majority, which, of .course, would be in violation of the statutes against perpetuities.

It is urged that the last clauses or provisions of paragraph 4 may be disregarded and that it may be held that the will is susceptible of the interpretation that the testator intended that his residuary estate should be divided into as many trust estates as he had sisters living at the time of his death, and that the forty dollars per month specified should be paid to each during their lives respectively, and that upon the death of each or any of them the amount of her share not received by or paid to her during her lifetime may be regarded as unbequeathed assets, to be distributed to the heirs and next of kin of the testator the same as if no will had been made by him.

Of course, it is well settled by authority that the intention of a testator should have a very material bearing in determining the validity of any provision of his. will. It, however, is equally well settled that such testator, no matter what his intention, cannot make a will in conflict with the laws of the State. But as to the intention of the testator in this case: Did he not intend that in case, of the deatli of one of his five sisters who survived him, her children, if any, should receive one-fifth of the trust estate less what she had 'received or been paid during her lifetime ? I think there is no warrant for any other assumption as to his intention, because such is his expressed declaration. He said, in substance, to his executor: “ Pay to each one of my sisters who may survive me forty dollars per month, during her lifetime or until such time as the principal and interest of such trust fund is exhausted, and in case one of my sisters; shall die before; said estate is exhausted leaving' issue her surviving, pay to them such forty dollars per month share and share . alike.”

'., It seems to me that the result of the decision of á majority of the Court, as outlined in the prevailing opinion is to construe the will in question, in such manner as to thwart the express intention of the ' testator in respect to the’ disposition of liis. property. I fail to find in the will, any warrant for the proposition that the testator intended that in case either or any of his sisters died before their interest in the trust estate was exhausted; such interest should be regarded as the unbequeathed propérty of the testator. Unless there was' such intention of the testator, and - it can be. sustained under, the provisions of the statute, the' disposition which he sought to. make of his property tinder paragraph Í of his will is void.

As was said by Judge Martin in Herzog v. Title Guarantee & Trust Co. (177 N. Y. 86): “The intent -to be discovered is not whether he intended to make a valid disposition of' his estate, but what1 provisions lie in fact intended to make. When that is. found, it,is for the court to determine whether such intended provisions are valid or otherwise.” The duty of the court, as the learned' judge further and appositely, remarked, “is not to make a new will or codicil to carry out some supposed but undisclosed purpose. * ' * * The duty- of the court is to interpret, not to construct.”

The appellant is in effect asking this court to make a new will for the testator and one entirely different from what he intended as expressed in the will which lie purported to make. As before said, he gave his residuary estate to his executor as trustee to be paid out •to his five sisters who survived him at the rate- of forty dollars per mouth to each,'and that upon the death of either, such executor or trustee should continue to pay such forty dollars' per -month to the ' children of such deceased sister share and share alike. Tlierb is no ’ suggestion in' the will of an- intention on the part of the testator that in case of the death of one of such sisters, although leaving issue, the balance of her interest in such estate should go to the heirs of the testator as unbequeathed assets. All the .provisions of the will relating to this question , are included. in one paragraph and each is dependent upon the other. It is impossible, as it. seems to me, to construe one independent of the other.

If, as suggested in the Opinion of brother Kruse, the interest of any sister remaining after her death was not bequeathed or disposed of by such will, I consider that it would go into the residuary estate, provided the provision creating such residuary estate was valid, and, therefore, precisely the same difficulty would be presented. I understand the law to be that “ A residuary gift of personal estate carries not only everything not in terms disposed of,, but everything that in the event turns out to be not well disposed of. A presumption arises for the residuary legatee against every' one except the particular legatee, for a testator is supposed to give his personalty away from the former only for the sake of the latter. It has been said that, to take a' bequest of the residue Out of the general rule,, very special words are required, and accordingly a residuary bequest of property ‘not specifically given,’ following, various specific and general legacies, will include lapsed specific legacies.” (1 Jarman Wills [Big. 5th Am. ed.], 756.)

I conclude that the disposition sought to be made of the testator’s property under paragraph 4 of his will is void and that all of such property passed , to his heirs and next of kin as unbequeathed assets, and, therefore, that the decree appealed from should be affirmed, with costs.

Robson, J., concurred.

Decree modified in accordance with opinion of Kruse, J., and as so modified, affirmed with costs to each of the parties or set of parties appearing by separate attorneys, payable out .of the estate.  