
    Mary L. Whitefield, as Executrix, etc., of George Whitefield, Jr., Deceased, and Individually, Respondent, v. Mary Whitefield Crissman, as Executrix, etc., of George Whitefield, Jr., Deceased, Defendant, Impleaded with Letitia Whitefield and Others, Appellants.
    First Department,
    January 10, 1908.
    Will—trust for the minority of four children — suspension of power of alienation and absolute ownership — power of sale not coupled with power to dispose of proceeds.
    A will placing the entire estate in trust for the benefit of four children, “the income of such portion of the principal as may be necessary for their maintenance to be used until all shall have reached their majority,” at which time the residue is to be divided share and share alike, with a power in the trustees-to-sell and dispose of any of the property in their discretion, unlawfully, suspends the power of alienation of the real property and the absolute ownership of the personal property, as the ultimate vesting of title is postponed until four children arrive at the age of twenty-one years.
    The illegality is not cured by the power of sale, it not being coupled with a power to divide the-proceeds before the termination of t-lie trust.
    Under the provisions of the statute (Real Prop. Law, § 32; Pers. Prop. Law, .§ 2). the validity of a testamentary provision is to be determined by the legality of the ultimate disposition of the corpus of the estate for which the power of sale or disposition i8 given.
    Appeal by the defendants, Letitia Whitefield and others, by their guardian ad litem, William Klein, from a judgment of the Supreme Court in favor of the plaintiff, entered -in the office of the clerk of. the county of blew York on the 13th day of August, 1907, upon the decision of the court, rendered after a trial at- the Yew York Special Term, declaring certain provisions of the will of George. Whitefield, Jr.,, deceased, to be void."
    
      William Klein, guardian ad litem, for the appellants.
    
      Robert A. B. Dayton, for the respondent.
   Ingraham, J.:

The will gave' all the testator’s property to -his wife and sister in trust for the benefit of his four children, “ the income and, such portion of the principal as may be necessary for their maintenance to be used until all shall have reached their majority, when after deducting the percentage legally allowed to my wife Mary L. Whitefield, the residue or balance is to be divided share and share alike among the aforementioned children Letitia, Mary, Martha and George 3rd; in the event of the death of any of said children without issue, said share to be divided pro rata among those remaining. * * * I hereby authorize and empower my trustees hereinafter named to sell and dispose of any * * * of my property, real and personal or mixed, in their discretion, and to execute all necessary papers to consummate such sale or disposition.”

There'can be no.- question but what the ultimate vesting of the title of the testator’s property was postponed until his four children ■ arrived at the age of twenty-one. All the property of the testator, real and personal, was to be retained by the trustees during that period, the income and the necessary portion of the principal to be used for their maintenance and support, the share of any one dying to be divided among the survivors. The power of sale vested in the trustees does not change the situation. There is no provision in the will that authorizes the trustees to sell the property and divide the proceeds before the termination of the trust. If they sold-the real property they would still hold the proceeds subject to the same trust as they held the property prior to the sale. The question is not as to the power of alienation but the suspension of the ultimate vesting of the property. If the sale of the real property would terminate the trust and vest the proceeds .at once in the devisees or legatees, a different question would be presented.

Section 32 of the Real Property Law (Laws of 1896, chap. 547) provides that: Every future estate shall be void in its creation which shall suspend the absolute power of alienation by any limitation or condition whatever for a longer period than during the continuance of not' more than two lives in being at the creation of the estate.” Section 33 provides: “ Successive estates for life shall not be limited except to persons in being at the creation thereof, and where a remainder shall be limited' ón'moré than two successive estates for life all the life estates subsequent to those of the two persons first entitled thereto, shall be void, and on the death of-those persons the remainder shall take effect in the same manner as if no other life estates had been created.” And section 36 provides: “A. contingent remainder shall riot be created ori a term of years unless the nature of the contingency on which it is limited be such that the remainder must vest in interest during the continuance of not more than two lives in being at the creation of such remainder or on the termination thereof.” And by section 2 of the Personal Property Law (Laws of 1897, chap. 417) it is provided that the absolute ownership of personal property shall not be suspended by any limitation or condition for a longer period than during the continuance and until the termination of not more than two lives in being at the date of the instrument containing such limitation or condition; or, if such instrument be a will, for' not more than two lives in being at the death of the testator.” .

The will gives all of the testator’s possessions to his trustees during the minority of- his four children, and it is only, on the. four children arriving at age that the residue or balance is to be divided among them. The absolute ownership of all the personal property contained in the will was thus suspended during the minority of these four children, and the alienation of the read property was also suspended during the same period, unless the executors, under the power of sale, should sell the property, in which event they would be bound to hold the proceeds as personal property until the arrival at age of all four of the testator’s children. Under the provisions of the statute the validity of the testamentary provision is to be determined by the legality of the ultimate disposition of the corpus of the estate for which the power of sale or disposition is given. (Garvey y. McDevitt, 72 N. Y. 556; Stoiber v. Stoiber, 40 App. Div. 156.) Under this will there is no method by which the trustees could distribute the property bequeathed to them until the termination of the minority of the four children, nor could there be any alienation of the real property and distribution of the proceeds during a like period.

It follows that the will violated the statute in relation to the creation of estates and disposition of personal property, and is, therefore, void, and the judgment must be affirmed, with costs to the plaintiff payable out of the estate.

Patterson, P. J., Lattghlin, Clarke and Scott, JJ., concurred.

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