
    Frederick C. Boynton et al., as Trustees Under the Last Will and Testament of Theodosia Boynton, Deceased, Plaintiffs, v. Elinor w. Lahens and Others, Defendants.
    (Supreme Court, New York Special Term,
    June, 1913.)
    Wills—Bequest of Residuary Estate, all Personal, to Trustees—iNr tention of Testatrix—Vesting.
    Where testatrix, who was survived by five adult children, one of whom, a bon, died intestate, married and without issue and two of the other children are married and have minor children, bequeathed her residuary estate, all personalty, to trustees in trust • (1) to hold and invest the same and collect the income therefrom and pay the sdme to her children share and share alike during their respective lives; (2) on the death of any of said children the trustees were directed to pay to him or her issue, share and share alike, one equal part of the estate on the basis of a division thereof into as many parts as there shall be children surviving testatrix; (3) “In case any of my said children shall leave no issue him or her surviving, then I direct that said share set apart to him or her in trust as aforesaid shall be disposed of as he or she may direct by his or her last will and testament, and failing such disposition by him or her, then I direct that such share shall fall into my residuary estate and be distributed as hereinbefore provided. (4) In case any of my said children shall predecease me, leaving issue him or her surviving, then I direct my said trustees to pay over to such issue, share and share alike, that portion of the income of my said estate to which such child would have been entitled if living, and on the death of any one of the other surviving children, then I direct my said trustees to pay to said issue, share and share alike, one equal part of said estate as provided in subdivision 2 thereof,” the testatrix intended that in the event of the death of any child without issue surviving and without disposing of its share by will, the share of such child should be divided into as many subshares as there were children then surviving, which sub-shares should be added to and form a part of each of the subsisting trusts; that, upon the death of each child, the subshares so added should vest in its issue,, if any; that if any such child should die intestate and childless the subshare held for such child should vest in the decedent’s next of kin, if any, as of the date of decedent’s death.
    Action for the construction of a will.
    Daly, Hoyt & Mason, for plaintiffs.
    Joseph L. Delafield, for defendants Chester C. Boynton and Elinor V. Lahens.
    Joseph V. Gallagher, for defendant Nathalie Boynton.
    W. Holden Weeks, guardian ad litem.
   Guy, J.

This is an action for a construction of the will of Theodosia Boynton, deceased. The testatrix died January 25s 1908, leaving her surviving five adult children; four of whom are now living; her son, Theodore V. Boynton, having died on November 15, 1911, intestate, married and without issue. Two of the testatrix’s surviving children are unmarried, the other two are married and both of them have surviving minor children. The testatrix’s two surviving married children contend that the tenth clause of the testatrix’s will is void as unlawfully suspending the ownership of the residuary estate, which the account shows is all personalty, for more than two lives and that the testatrix died intestate as to her entire residuary estate. The guardian for the infant children of the testatrix’s two surviving married children claims that the five trusts set up in the residuary clause are all valid and that the one-fifth share held in trust for the testatrix’s since deceased son, Theodore V. Boynton, should be divided into four equal parts or subshares, each of which subshares should be added to and form a part of one of the four subsisting trusts, and upon the death of each child the subshare so added should vest in the then next of lein of the testatrix. The residuary clause of the testatrix’s will reads: “ Tenth. All the rest, residue and remainder of my estate, I give, devise and bequeath to my trustees hereinafter named in trust, nevertheless, for the following uses and purposes, namely: (1) To hold and invest the same and collect the income therefrom and pay such income to my children, share and share alike, during their respective lives. ' (2) On the death of any of my said children, I direct my said trustees to pay to his or her issue, share and share alike, one equal part of my said estate, on the basis of a division thereof into as many parts as there shall be children me surviving. (3) In case any of my said children shall leave no issue him or her surviving, then I direct that said share set apart to him or her in trust as aforesaid shall be disposed of as he or she may direct by his or her last will and testament, and failing such disposition by him or her, then I direct that such share shall fall into my residuary estate and be distributed as hereinbefore provided. (4) In case any of my said children shall predecease me, leaving issue him or her surviving, then I direct my said trustees to pay over to such issue, share and share alike, that portion of the income of my said estate to which such child would have been entitled if living, and on the death of any one of the other surviving children, then I direct my said trustees to pay to said issue, share and share alike, one equal part of said estate as provided in subdivision 2 thereof.” The five trusts set up by the residuary clause of the will are not indivisible or joint nor do they create a blended trust fund, but they are independent, separate and distinct, the beneficiaries take as tenants in common, and the power of alienation of each share is only suspended during the lives of the two successive beneficiaries, during which that share with its respective subshare is limited. Schey v. Schey, 194 N. Y. 368, 373-375; Chastain v. Dickinson, 138 App. Div. 746, 751-752; affd., 201 N. Y. 538-543, 544; Vanderpoel v. Loew, 112 id. 167, 177, 180—186; Matter of Mount, 185 id. 162, 169, 170, Smith v. Edwards, 88 id. 92—103; Moore v. Hegeman, 72 id. 376, 382—384; Stevenson v. Lesley, 70 id. 512, 515, 516; Amory v. Lord, 9 id. 403, 415, 416; Chapl. Sus. Alien. (2d ed.) §§ 100-112. Although the principal of the trust fund is held in one general mass for convenience of investment, yet the primary beneficiaries’ interests, as well as the successive beneficiaries’ interests, are several and are held by them respectively as tenants in common, even though the fund remains undivided. Leach v. Godwin, 198 N. Y. 35, 41. No contingency resulting from the uncertainty as to which of the alternative future estates in the subshares will vest or fail to vest could create any restraint on the power of alienation of the remainder. Real Prop. Law, § 51; Hennessy v. Patterson, 85 N. Y. 91, 99; Knowlton v. Atkins, 134 id. 313, 317—322. The cases where trusts in joint tenancy for the lives of more than two persons, blended trust funds to be held intact until the death of the last of more than two beneficiaries, and trusts of personal property to continue during the lives of persons not in being at the creation of the trust, have been held invalid, are not in point. The testatrix intended, and I see no legal difficulty in the carrying out of such intention, that in the event of the death of any child without issue surviving and without disposing of its share by will, the share of such child should be divided into as many subshares as there were children then surviving, which subshares should be added to and form a part of each of the subsisting trusts ; that, upon the death of each child, the sub shares so added should vest in its issue, if any; that if any such child died intestate and childless the sub share held for such child should vest in the decedent’s next of kin, if any, as of the date of decedent’s death. Matter of Wilcox, 194 N. Y. 306; Clark v. Cammann, 160 id. 316, 328, 329; Greenland v. Waddell, 116 id. 234—245. Judgment construing the will accordingly, with costs to plaintiff and to the infant defendants.

Judgment accordingly.  