
    Ella M. Haynes, Resp’t, v. Catharine M. Sherman et al., App’lts.
    
      Supreme Court, General Term, Second Department,
    
    
      Filed February 11, 1889.)
    
    1. Wills—What words do not create a fee.
    A testator disposed of all his property in the following clause: “ I give and devise and bequeath all my estate, real and personal, and mixed, and wherever situated, to my wife, Catharine M. Sherman, in trust, nevertheless, to have and hold the same, and use so much of the income and principal, as she may deem necessary for her support, and the support of our childeren, until our youngest child now living, shall arrive at the age of twenty-one years, or would arrive at that age if living, and at that time I order and direct my said e-tote to be divided among my legal heirs then living, in such manner and proportion as they and each of them would be entitled to under the laws of the state of New York.” Held, that the wife did not take a fee.
    3. Same—When invalid limitation cut off.
    
      Held, that a trust limited solely by time, is unauthorized and void, but an invalid limitation will not be allowed to invalidate the primary disposition of the will, but will be cut oil from a trust which is not an entirety.
    
      3. Same—Ooítstiitjotioh'.
    
      Held, that each child has a vested remainder in fee, subject to be- ■ divested by death, under age, and subject to the trust during the minority of the youngest child. >
    Appeal from a judgment of the special term, for the. partition and sale of premises in Kings county, and declaring void, as regards said premises, the will of Elijah T. Sherman, deceased.
    
      S. P. & J. McL Nash, for app’lts; Baldwin & Blackmar, for resp't.
   Barnard, P. J.

—Elija T. Sherman died in 1886, leaving a widow and six children. The youngest child would become of age in 1893. The testator left a will by which he made his widow sole executrix with power of sale of all hi®, estate.

He disposed of all of his property in the following clause:. First¡ After paying my just debts, “I give and devise and bequeath all my estate, real and personal, and mixed and wherever situated to my wife Catherine H. Sherman, in trust, nevertheless, to have and to hold the same and use-so much of the income and principal as she may deem necessary for her support and the support of our children until, our youngest child now living shall arrive at the age of twenty-one years or would arrive at that age if living; and at that time, I order and direct my said estate to be divided among my legal heirs, then living in such manner and proportion as they and each of them would be entitled under-the laws of the state of Hew York.” Under this clause the wife did not take a fee. The case is entirely different from Cambell v. Beaumont (91 N. Y., 464).

In that case the property was all left to be used by the wife “for her sole use and benefit; and the remains thereof the testator expressed a wish and desire should be received and enjoyed by her son.” Here the trust is for the wife and family with a devise over after the trust ceases, thus.. clearly showing an intent not to give the entire fee to the wife. Wager v. Wager, 96 N. Y., 164.

Does the clause in question create an illegal suspension of' the power of alienation? The question is presented by the-use of the words, “or would arrive at that age if living,” after fixing a limit to the time when the youngest child became of age. A trust limited solely by time is unauthorized and void, but the rule is equally well-settled that an invalid limitation will not be allowed to invalidate the primary disposition of the will. An invalid limitation will be cut off from a trust which is not an entirety. The trust, during minority is valid and it may never happen that the child will die under age. The primary disposition is designed to protect the widow and children during the minority of this child. That the testator in case of death provided that the trust continued up to a date at which the child would reach his minority if he had lived, is not so interwoven with the valid trust as that it must fall with the illegal limitations incident to the trust. Tiers v. Tiers, 98 N. Y., 568.

There is nothing in this will except infancy which restrains alienation by the children. The gift to them is absolute, and the time when they are to take possession is. only postponed;- each child has a vested remainder in fee-subject to be divested by death under age and subject to the-trust during the minority of the child named in the will.

This trust will terminate when the child dies if he should die under age. A limitation during minority is legal and. valid. Beardsley v. Hotchkiss, 96 N. Y., 201.

The judgment should be reversed and a new trial granted, costs to abide event.

All concur.  