
    Charles Kessler, Plaintiff, v. Dora Friede et al., Defendants.
    (Supreme Court, New York Special Term,
    October, 1899.)
    Trust — Suspension of power of alienation — Not affected by preceding life estate — Vesting of remainder.
    In 1893 a testator, whose wife died in 1898, gave her by his will a life estate in all his property. He then created a trust in the rents and profits of certain lands until “the oldest child of my deceased son, Robert Kessler, shall have arrived at the age of 30 years”, at which time he directed a sale and a division of the proceeds into as many shares as Robert had living children at the time of the testator’s decease; and, of these shares, he directed the trustees to “ pay ” one to each child of Robert who had reached the age of thirty years; and, in the case of Robert’s other children, to invest the share until the age of thirty years had been reached and then pay it over. He further directed that, in case any child of Robert should die, leaving issue surviving, the issue should take the share of the parent. In 1895 the oldest child of Robert died unmarried and without issue, aged twenty-four yedrs.
    Held, that the power of alienation was not improperly suspended.
    That the life of the wife of the testator was not one which measured the duration of the trust, as she could alienate her life estate at any time.
    That the trust was measured only by the valid provision that it should last until the oldest child of Robert should attain the age of thirty years and that, as that child had died, aged twenty-four years, the trust ended and an immediate sale should be had.
    That the power of alienation was not improperly suspended by the direction that the share of a distributee who had not reached thirty years should be held in trust until that time, as there could be no suspension of alienation beyond his own life and that of Robert’s oldest son.
    That the shares of Robert’s children vested in interest at the time of the testator’s death; and that the direction to pay over the shares of those, who were minors, only when they had reached the age of thirty years did not impair vesting, although it postponed payment.
    That the provision, that any deceased child of Robert should take its parent’s share, referred only to a death occurring before that of the testator.
    Action for the construction of a will.
    William EL Osborne, for plaintiff.
    Warren W. Foster, guardian ad litem, for Gustave Kessler and William Kessler.
    Thomas W. McKnight, for Bertha Kessler Boswald.
    Edwin F. Stern, for Frederick Kessler.
    
      Alfred B. Cruikskank, for Dora Eriede.
    George T. Hanning, for Gustave Eriede.
    Frank Schaeffler, for defendants Frank 0. Schaeffler, as executor, etc., and Kate Schaeffler.
   Beekmau, J.

Robert Kessler died in the year 1893, leaving a last will and testament in and by which, after directing the payment of his debts and funeral expenses, he devised and bequeathed all of his estate, real and personal, to his wife, Catherine, “ for and during the term of her natural life.” Under the third and succeeding clause of his will he devised and bequeathed all the rest, residue and remainder of his estate, real and personal, as follows: To his daughter, Dora Eriede, certain chattels and also four lots of land, which he describes, in fee;- to his son Frederick two other lots of land in fee, and to his executrix, three other lots of land in trust, to take possession of the same, and to collect and receive the rents, issues and profits thereof until, to use the language of the testator, “ the oldest child of my deceased son, Robert Kessler, shall have arrived at the age of 30 years.” After providing for the payms-nt, out of the income, of the expenses of administering the trust, the testator directs the trustee to apply so much of the balance to the care, maintenance and education of such of the children of his son Robert as may be minors, but during their minority only, as the trustee, in her discretion may deem necessary and proper, and then to divide any balance then remaining into as many shares or parts as his said son Robert had children living at the time of his (testator’sJ decease, allowing, also, one share for Bertha, the widow of said Robert, and to pay one share to said Bertha, and also one share to each of Robert’s children. Immediately following this is a provision which I quote: “ And in further trust, as soon as the oldest child of my deceased son Robert shall arrive at the age of 30 years, that my said executrix sell and convey the said trust property, and I hereby authorize, empower and direct my said executrix to sell and convey the said trust property, at public or private sale, at such time or times and upon such terms as my said executrix shall deem most advantageous, and make, execute and deliver to the purchaser or purchasers thereof good and sufficient conveyanees in the law for the same; also, in further trust, that my executrix divide the proceeds of sale (whenever sale shall be made)' into as many shares or parts as my son Robert shall have children living at the time of my decease, and to pay one of said shares to each child who may have arrived at the age of 30 years, and that my said executrix invest the remaining shares of such proceeds of sale, one for each child under the age of 30 years, at interest, and keep the same so invested until each child shall arrive at the age of 30 years, when the share so invested for him or her, together with any accumulations of interest, shall be paid over by my executrix. And in further trust that my said executrix is hereby authorized, in her discretion, to apply the interest accruing on such investments for the benefit of the respective cestui que trusts, during their minority, and also that she may pay such interest to the respective cestui que trusts after they shall respectively arrive at the age of 21 years.”

The fourth paragraph of the Vill is as follows: “Fourth. It . is my will and I hereby direct that in case any of the children of my deceased son Robert shall depart this life leaving issue surviving, then such issue shall be entitled to and become vested with' the share, interest or portion of, in and to the trust estate and my residuary estate, his or their parent would be entitled to, or would have received if such parent had lived.” The fifth clause contains a general bequest and devise of the rest, residue and remainder of his estate, if any, in equal shares to his two children, Dora and Frederick, and the children of his deceased son Robert, the latter taking together a single share.

His daughter, Dora Friede, was appointed sole executrix of the will. The testator left him surviving his widow Catherine, who died on the 18th day of January, 1898, his daughter Dora and his son Frederick, and four grandchildren, sons of testator’s deceased son Robert, namely, Robert Kessler, who was born on August 22, 1871, and who was the eldest, Charles Kessler, Gustave Kessler and William Kessler. On the 27th day of June, 1895, Robert, being then about twenty-four years of age, died unmarried and without issue; and this action is now brought for the purpose of obtaining a construction of the will above referred to. The main question submitted for solution is whether the provisions affecting the property devised to the executrix in trust involve an undue suspension of alienation in violation of the statute in that regard.

I am quite satisfied that such is not the case. In the first place, the life of testator’s wife is not a measuring life, and is not to be considered. Her interest in the property was a legal estate for life, and was at all times alienable at her pleasure. Being of such a character, there could be no suspension of alienation wrought in any way by reason of this provision in her favor. Bailey v. Bailey, 97 N. Y. 460; Bird v. Pickford, 141 id. 18; Corse v. Chapman, 153 id. 466; Jessup v. Pringle Memorial Home, 27 Misc. Rep. 427. The effect of the provision undoubtedly was to postpone the enjoyment of the actual possession of the property by the trustee so long as the life estate continued, but this did not affect the vesting of the trust estate in the trustee, which took place immediately upon the death of the testator, and the duration of the trust and the suspension of alienation which was affected by the will are measured by other lives than that of the life tenant. The precise question here involved has been so thoroughly discussed in the cases above cited, and the principle which I have stated so firmly established, that it is quite unnecessary to indulge in any further review of the subject.

The trust which was created for the benefit of the children of testator’s deceased son Eobert did involve a suspension of the alienation of the property during the period for which it was to continue, namely, until the oldest child of testator’s deceased son Eobert should have arrived at the age of thirty years, assuming that he lived to reach that age. It is a well-settled and familiar proposition that such a trust is valid, as its duration cannot exceed the Emit of a Efe; for, if the cestui que vie dies before attaining the prescribed age, the trust terminates with his decease. This is exactly what took place in the case at bar. The eldest son of Eobert did die before reaching the age of thirty years, and the trust which was dependent upon his life immediately came to an end and the occasion arose for the sale and distribution of the corpus of the estate. The Eves of the beneficiaries of the trust (other than Eobert’s eldest son) are in no sense measuring Eves, and in nowise affected the duration of the trust. Bailey v. Bailey, 97 N. Y. 460.

It has been suggested that because the will provides that, as soon as the oldest child of testator’s deceased son Eobert shall arrive at the age of 30 years,” the property shall be sold and the proceeds distributed among those entitled to the remainder of the estate, no such sale can take place until the actual lapse of time which would have completed that age had such oldest child lived until then. Such a claim is quite unsound. Obviously, what the testator intended was that the directions to sell and ■distribute were to take effect and be consummated immediately upon the falling in and termination of the preceding particular estate. The words which he uses in giving the direction to sell are the same as those employed by him in specifying the limit of the trust estate and are to be given' the same meaning, and, as the law construes the language used in limiting the trust to mean that it is to continue until Eobert’s oldest child attains the age of thirty years, or until his death should he die before that event, the use of the same phrase with respect to the ■conversion and distribution of the property carries with it the same meaning. In a word, the testator, in directing that the property should be sold as soon as the oldest child of his deceased son Eobert should arrive at the age of thirty years, meant that upon the termination of the trust such should be the immediate disposition of the trust property. Any other construction would be quite too strained and unnatural to admit of acceptance. In any event, it is the duty of the court, as between two possible constructions, to adopt the one which will support rather than impair the validity of the will. But I am not here confronted with the necessity of such a choice, as the general scheme of the will indicates with sufficient clearness that the construction which I have given is plainly in accord with the actual intention of the testator. The direction to sell is a valid one, and should now be exercised.

The only other measuring lives affecting the alienability of the property are those of the distributees of the proceeds of the sale of the property who shall not have attained the age of thirty years. The share of each of such persons is directed to be held in trust until he attains that age, when it is to be paid over to him, the income in the meanwhile to be applied to his use. As to each share so situated, it is manifest that there can be no suspension of alienation in excess of two lives, namely, that of Eobert’s eldest son and that of the child for whose benefit such share is set apart; and as to the shares of those who may have attained the age of thirty years, the suspension of alienation is measured by the single life of Eobert’s eldest son.

As has been said, the life of the widow in no way contributed to the suspension of alienation.' Her estate was absolutely alienable .at any time, and it was competent for her at any time to unite with others capable of conveying their interests in the extinguishment of her life estate. Thus, in no event could the suspension of the power to alienate transcend the prescribed limit.

It becomes necessary now to consider whether the interests of the children of Robert were vested at the time of testator’s death. I am mindful of the general rule that where the interest of legatees or devisees is derivable only under a direction to pay, convey or ■divide futurity attaches to the substance of the gift, and those only who are in being at the time appointed for the transfer are -entitled to take. But it is not an inflexible rule, and always yields to evidence of a contrary intention on the part of the testator as that may be discoverable upon a consideration of the will as a whole. Campbell v. Stokes, 142 H. Y. 23. I am satisfied in the -case at bar that the will discloses an intention to vest the interests ■of the distributees from the date of testator’s death. It will be ■observed that in providing for the distribution of the proceeds of sale of the trust property, the testator directs the same to be divided into as many shares or parts as his son Robert should have -children living at the time of his (testator’s) death, and to each of them an equal share of such proceeds is alloted. They, and not such of them as may be living at the time of distribution, are ■declared to be the objects of his bounty. There are no substitutionary provisions for the benefit of others should any of such children die after the testator, and the unqualified direction for a ■division of the property into as many shares as there were children of Robert living at testator’s decease forbids the idea that he intended that those only who were in being at the time appointed for •distribution should take the entire proceeds. It is true that under the fourth clause of the will it is provided, as we have seen, that if any of the children of Robert should die leaving issue surviving, such issue should be “ entitled to and become vested with the share, interest or portion of, in and to the trust estate and my (his) residuary estate his or their parent would be entitled to or would have received if such parent had lived.” But it is plain that this refers to a death before that of the testator, and this ■construction is much reinforced by the rule that in the absence of evidence in the will of a different intention such a provision will be presumed to relate to a death before rather than after the testator. This rests upon the established principle that the court will always lean to a construction which will vest an estate or interest at the earliest possible moment. The direction to pay the shares of those of the children who were minors upon their attaining thirty years of age did not qualify the vested character of their interests in the principal. If there were no other reason, the rule would prevail that where the gift is severed instanter from the general estate and is directed to be held by the trustee for a specified time for the benefit of the legatee and then to be paid over to him, the interest, in the meantime, to be applied to his use, this is indicative of an intent on the part of the testator that the legatee shall, at all events, have the principal, and is to wait only for the payment until the day fixed. Warner v. Durant, 76 N. Y. 133; Smith v. Edwards, 88 id. 92, 105; Vanderpoel v. Loew, 112 id. 167, 181.

I am satisfied, upon a consideration of the whole will, that the shares which these children were to take were intended to be and were vested interests upon the death of the testator. The whole scheme of the will shows a steadfast intention on his part that, in any event, they were to be the objects of his bounty. Upon this construction, the share of Robert’s eldest son upon his decease passed to his personal representatives. As the will directed the conversion out and out of the property, and apportioned the proceeds only among the children of Robert, their shares must be regarded as personal property and be dealt with accordingly. The rents and profits which have accrued since the death of the widow of testator belong to those entitled under the will to receive the proceeds of the sale of the property. With respect to the payment to the executrix by Frederick Kessler of the sum of $5,000, as directed in the will, and any other matters upon which the direction of the court may be desired, I will hear the parties on the settlement of the decision and judgment.

Ordered accordingly.  