
    The Orange County Trust Company, as Sole Executor and Trustee Under the Last Will and Testament of Catherine W. Morrison, Deceased, Plaintiff, v. George M. Morrison, Frank Morrison, Catherine Carpenter and Edith Weller, Defendants.
    (Supreme Court, Orange Special Term,
    September, 1907.)
    Wills — Interpretation and construction — Terms defining the nature and quality of estates or interests — Future interests and vesting, etc.— Direction to convey, deliver, etc. at future time — Where gift is positive and direct.
    Suspension of power of alienation — Prevention of invalidity hy other provisions of grant or subsequent events — Suspension for period of years with provision limiting same to life in being.
    Where a testatrix bequeaths to each of her nephews, George and Frank, and a niece, their heirs and assigns forever, a distinct and' certain number of shares of corporate stock with a proviso that the stock shall be held in trust by her executors for seven years from her death if that shall occur before a certain date or from that date if she lives longer “ the said heirs ” to receive the dividends from the date of her decease, and that, in case of the decease of George before the expiration of the seven years without child or children, the shares bequeathed to him shall go to the children of testatrix’s brother James, share and share alike, all the legacies being upon condition that in no event shall the shares be delivered to the legatees until the expiration of the said period of seven years, the legacies as to Frank and the niece vest absolutely upon the death of testatrix, and the legacy to George vests on her death subject to be divested by his death should it occur prior to the 'expiration of said period.
    The only suspension of the absolute ownership of said shares of stock was measured by the life of George.
    Action for the construction of a will.
    Henry W. & Russell Wiggins, for plaintiff.
    John W. Lyon and Finn & Finn, for defendants.
   Tompkins, J.

This action is for the construction of the first clause of the will of Catherine W. Morrison, deceased.

The clause in question reads as follows:

“Item J. I give, bequeath and devise unto my nephew George M. Morrison, son of my brother John H. Morrison, deceased (10) ten shares of the capital stock of the Sussex National Bank of Newton, N. J., and to my nephew, Frank Morrison (10) ten shares of the said Sussex National Bank of Newton, N. J.”
“And to my niece Catherine Carpenter (6) six shares of the capital stock of the said Sussex National Bank of Newton, N. J., to them and to their heirs and assigns forever subject to the following conditions:—That the said capital stock shall he held by my executors in trust for the period of seven years, from the date of my death; should I decease on or before the date of January 1st, 1901, They the said Heirs to receive the dividends on said stock from the date of my decease. But, should I survive this period, or a portion of it, Then, the time to be computed from the above named date, January 1st, 1901, until the said seven years shall have expired, and then said stock shall be delivered to them, my said nephews and niece, to keep and to hold, to them, their heirs and assigns forever; Except should it be, that at or before the expiration of the said seven years from the said date of January 1st, 1901, that the said George M. Morrison should decease without child or children Then in, that event the said (10) ten' shares of the capital stock of the said Sussex ¡National Bank shall go to the children of my brother James V. Morrison, to be divided equally share and share alike.”

The plaintiff’s claim is that the absolute power of alienation of the shares of stock sought to he bequeathed is unlawfully suspended for a longer period than two lives in being at the date of the death of the testatrix.

My conclusion is that there is no unlawful suspension of the absolute ownership of the shares of stock or of the power to sell, assign or otherwise dispose of them.

By the clause in question the testatrix gives to George ten shares, to Frank ten shares, and to Catherine six shares, there being three distinct- and separate lots of shares and three distinct and separate bequests. The substance of the conditions imposed is that in no. event shall the shares he delivered to the legatees until the expiration of seven years from the 1st day of January, 1901; and plaintiff’s contention is that the vesting of the- gifts does not occur until the expiration of that period, and that the vesting and distribution at that time must depend upon who are alive and entitled to take at that time, and that a trust has been created in the executors which offends the statute against the unlawful suspension of the power of alienation. It is to he noted that the shares of stock are not given by the will to the executors in trust, but are expressly given directly to the-nephews and niece named. The gifts are .absolute and immediate and vested in the legatees upon the death of the testatrix, the time of the delivery of the property, however, in the case of -Frank and Catherine, being postponed until the expiration of a period of seven years from January 1, 1901. In the case of George M. Morrison, if he survives the said period of seven years, the ten shares of stock are to he delivered to him; and, if he shall die before the expiration of said period without child or children, said shares shall go to the children of James V. Morrison.

I think the intention of the testatrix was, immediately upon her death, to vest the title of the said property in her nephews and niece, merely suspending the time for the delivery thereof until the expiration of seven years from January 1, 1901, and providing that in the meantime the executors should hold possession of the shares of stock, paying the dividends to the legatees; and that, upon the expiration of said period, the said shares bequeathed to Frank and Catherine should be delivered to them, if living, or, if dead, to their heirs or assigns. There was no suspension of the power of alienation in a’espect to the shares bequeathed to Frank and Catherine. The will not only gives the shares directly to both nephews and the niece but adds the words “to them and to their heirs and assigns forever,” giving to Frank and Catherine the right to sell and assign their shares, subject of course to the condition that the shares could not be delivered until January 1, 1908, and giving to George M., the said ten shares to he delivered to him should he survive the said period of seven years, the dividends in the meantime to he paid to him and, in the event of his prior death, the shares to he delivered to the children of James V. Morrison.

A mere postponement of the time of payment of a legacy or delivery of property does not make a legacy contingent or unlawfully suspend the power of alienation. Bushnell v. Carpenter, 92 N. Y. 270; Thomas Laws of Estates Created by Will, 391.

Having in mind the rule that, by every reasonable intendment and by a liberal construction, the intention and purpose of the testatrix should be ascertained and given effect, I conclude that, as to Frank and Catherine, the legacies vested absolutely upon the death of the testatrix and that, as to George M. Morrison, the legacy vested on the death of the testatrix, subject to be divested by his death, should it occur prior to January 1, 1908, the only suspension of absolute ownership being measured by his life.

I accordingly direct judgment in favor of the defendants, adjudging that the provisions of the first clause or item of said will are legal and valid, and for costs to the defendants payable out of the estate. Submit findings in accordance herewith.

Judgment for defendants.  