
    Haynes v. Sherman et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    February 11, 1889.)
    1. Wills—Construction—Nature of Estate.
    A bequest of all testator’s property to his wife, in trust to hold the same, and use so much of the income and principal as may be necessary for the support of herself " and children, “until the youngest child now living attains the age of 21 years, or would arrive at that age if living, ” at which time the estate is to go as it would under the intestate laws, does not vest a fee in the wife.
    2. Same—Trusts—Restraint of Alienation.
    Though a restriction of the power of alienation until the time at which the youngest child would attain its majority, if living, is invalid in case of the death of such child during minority, the trust is valid during the child’s life-time, as the illegal limitation is not so interwoven with the valid provision that it cannot be separated therefrom, and, in case of the death of the child during minority, the trust terminates, and the enjoyment of the remainder begins.
    Appeal from special term, Kings county.
    
      Action by Elia M. Haynes, a daughter and heir of Elijah T. Sherman, deceased, against Catherine M. Sherman, widow and executrix, etc., of said Elijah T. Sherman, and others, to declare void a devise by said testator of certain lands, and for a partition or sale thereof. Judgment for plaintiff, and ■defendants appeal.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      8. P. tfi J. McL. Nash, for appellants. Baldwin & Blaokmar, for respondents. Chas. L. Jones, guardian ad litem for infant defendants.
   Barnard, P. J.

Elijah T. Sherman died in 1886, leaving a widow and six children. The youngest child would become of age in 1898. The testator left a will by which he made his widow sole executrix, with power of sale of all his estate. He disposed of all of his property in the following clause: “Pirst. 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 M. 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 liv.ing; 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 Campbell 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 majority 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.  