
    Francis O’Brien, surviving Executor, &c., of James Whitty, deceased, v. Nicholas Mooney, Alexander H. Mooney, and Melissa Keenan.
    J. W., by his last will and testament, devised a house and lot, in the city of "New York, to his executors, in trust, to pay over the rents &e., to his father during his life, and after the death of his father, to pay out of the income an annuity of $300 to his mother, during her life, and the residue to his sister M. M. B. After the death of his mother, to pay the whole income to his sister during life, and after the decease of his father, mother and sister, to pay the income to the three children of his sister, A. H. M., N. M., and M. M., as soon as the youngest of them should attain the age of 21, during their lives. After their death, and as soon as the youngest child of any of them should attain the age of 21, to sell the property, and divide the proceeds among the children of the children named in the will, in certain specified proportions.
    
      Held, that the devise to the executors was either, as an entirety, wholly void, or was valid only during the lives of the father and sister of the legatee, and that, upon either supposition, the children of the sister became entitled, upon her death, as her heirs-at-law, to the house and lot, as tenants in common in fee.
    (Before Duer, Bosworth and Siossosr, J.J.)
    October term, 1855.
    This was the submission of a controversy under § 372 of the Code. The parties to the submission were the surviving executor and trustee, under the last will and testament of James Whitty, deceased, and the three children, mentioned in his will, of his sister Mary Mooney.
    The following are the material facts stated in the written submission, signed by the parties.
    James Whitty made and published his last will and testament in due form of law, dated February 5, 1834, and also a codicil thereto, dated 6th February, 1834, which will and codicil are as follows, viz:—
    In the name of God, Amen: I, James Whitty, of the city and state of New York, being at present weak in body, but of sound and disposing mind and memory, do make, publish, and declare this instrument tobe my last will and testament, as follows, to wit:—
    
      First. It is my will, and I do hereby order and direct, that all my just debts and funeral and testamentary expenses be paid and discharged by my executors hereinafter named, within a reasonable and convenient time after my decease.
    
      Second. I give, devise, and bequeath unto my executors hereinafter named, and the survivor of them, my house and lot, known and distinguished by the number 244 Water street, in the city of Hew York, upon the trusts and condition following:—Eirst: To pay out of the rents, issues, and profits arising therefrom, all taxes and assessments against the same, and also such sum or sums of money as may be necessary to effect insurance upon the said house against loss or damage by fire, and as may be necessary to keep the same in sufficient repair. Second: To pay the whole of the net annual income of said house and lot unto my father, Hicholas Whitty, of the city of Hew York, for and during the term of his natural life; and at the decease of my said father, then to pay unto my mother, Melissa Whitty, should she at that time be living, for and during the term of her natural life, the sum of three hundred dollars per annum, in equal quarter-yearly payments, and the balance of the said net annual income unto my sister, Mary Mooney, widow of Alexander H. Mooney, for and during the term of her natural life.
    
      Third,. At the decease of my said mother, I direct my said executors to pay unto my said sister, Mary Mooney, should she at that time be living, the whole of the said net annual income for and during the term of her natural life; and in the event of the death of my said sister before she would become entitled to receive the said income, then I direct my executors to invest the same in such manner as they, in their discretion, may deem most advantageous for my estate, for the benefit of the children hereinafter mentioned of my said sister.
    
      Fourth. After the decease of my said father, mother, and sister, I direct my said executors, and the survivor of them, to pay to Melissa Mooney, Alexander H. Mooney, and Hicholas Mooney, the children of my said sister Mary, so soon as the youngest of them shall arrive at the age of twenty-one years, but not before —yearly and every year during their natural lives—to each of them an equal third part of the said income arising from and out of the said house and lot; and in case that either the said Melissa Mooney, Alexander H. Mooney, and Hicholas Mooney should depart this life, either before or after the decease of my said sister leaving a child or children, then I order and direct my said executors, and the survivor of them, to apply such share of said rents, issues, and profits, as would have been paid to such parent or parents, if living, of such child or children, for the support, maintenance, and education of such child or children; and after the decease of the said above named children of my said sister, and so soon as the youngest child or children of them shall have attained the age of twenty-one years, but not before, I direct my said executors, and the survivor of them, to sell and dispose of the said house and lot number 244 Water street, either at public auction or private sale, as they in their discretion shall deem best; and the proceeds of the sale to divide in the following proportions, namely: To the child or children then living of the said Melissa Mooney, one-third part thereof; to the child or children then living of the said Alexander H. Mooney, one other third part thereof; to the child or children then living of the said Nicholas Mooney, the remaining third part thereof. But in case that either the said Melissa Mooney, Alexander H. Mooney, or Nicholas Mooney should depart this life without leaving a child or children, in that event the part or share of the proceeds of the sale of said house and lot, which would have belonged to such child or children, had he, she or they survived, his, her, or their said parent, shall belong and be paid to the survivors, in the proportions above mentioned.
    The residue of the will, and the codicil, are omitted, as having no bearing upon the questions to be decided.
    The testator died March 19,1834; his father, mother, and sister, and the children of the sister named in the will all surviving him. He had no other near relatives. The father died in July, 1838; the mother, in November, 1852; and the sister, the mother of the defendants, in July, 1841. Melissa, one of the defendants, intermarried with John Keenan, who died in May, 1850.
    The questions were, whether the legal estate was in the plaintiff, as surviving trustee, or in the defendants, as heirs-at-law of their mother; and from what time, if at all, the plaintiff was bound to account to the defendants for the rents and profits received by him.
    -, for plaintiff, the trustee.
    
      
      F. Byrne, for the defendants.
   By the Court.

Whether the devise in trust to the executors ought to be regarded, according to the principle of the decision of the Court of Errors in Coster v. Lorillard, (14 Wend. 265,) as an entirety and as such, wholly void, is a question which it is unnecessary to decide, since it is certain that the- devise, if valid at all, was only so, during the lives of the father and sister of the testator. The estate of the trustees necessarily ceased upon the death of the sister, as its continuance during the lives of her children, the defendants, would suspend the power of alienation beyond the period allowed by the statute, that is, beyond two lives in being at the death of the testator. All the trusts in the will limited to take effect after the death of the sister are very plainly illegal and void. It follows, that as the reversion in fee was undisposed of by the will, it descended, upon the death of the testator, to his father; upon his death, to the sister, as heir-at-law of the father, and upon her death, to the defendants as her heirs; and as the estate of the trustees terminated at the same time, it vested in them, not as a reversion, but as an immediate and absolute fee. The result is exactly the same, upon the supposition, that the devise to the executors is wholly void, for then the estate descended, as an absolute fee, to the father; upon his death, to the mother of the defendants, and, upon her death, to the defendants. Hence, guacwnque via data, the defendants are entitled to the possession of the house and lot devised, as tenants in common in fee.

A judgment, containing this declaration, must be entered, and also that the plaintiff account to the defendants for the rents and profits received by him since the death of their mother; but in taking this account he is to be allowed the payments made by him on account of the annuity to the mother of the testator, for, although the devise is wholly or partially void, the' annuity is valid, as a legacy charged upon the rents and profits, (Hawley v. James, 16 Wend. 61; Lang v. Ropke, 5 Sand. S. C. Rep. 464.) 
      
       The better opinion would seem to be, that the devise to the trustees was wholly void, and such, had it been necessary to decide the question, would probably have been the judgment of the court. Vide Amory v. Lord, 5 Seld. 403, (R.)
     