
    Mackenzie et al., as Executors, etc., v. Mackenzie, Individually and as Trustee, et al.
    (Supreme Court — New York County, Special Term,
    April, 1893.)
    In an action for the construction of a will, it appeared that testator described himself therein, as also in a trust deed executed in his lifetime, ' as a resident of New Jersey, where he died in January, 1892; that he had two residences, one in New Jersey, the other in Sullivan county, N. Y., where the will was probated, and at the latter of which places he resided the greater portion of his time; that he had voted there, and, when applying in 1890 to be excused as a juror in New Jersey, had sworn that for fifteen years last past had been a resident of New York. It also appeared that it was testator’s custom to go to New Jersey after the fall election, for the winter months; that at different times he was elected, and served as an officer and postmaster of Sullivan county, N. Y. Held, that his domicile was in New York, and that a provision of his will, although valid under the laws of New Jersey, but in contravention of the statutes of New York, was void.
    
      Action brought by the executors of George R. Mackenzie, deceased, for a construction of his last will and testament. The opinion states the facts.
    
      Edward Russell, for plaintiffs.
    
      William E. G. Ma/yer and Josiah T. Ma/reau, for defendant Easton.
   Lawrence, J.

On the 1st day of March, 1887, George R. Mackenzie executed and delivered to the defendants, Alexander Mackenzie, Hugh R. Mackenzie, Charles Elkin, Peter Alexander and Robert T. B. Easton, a deed of trust, in and by which he gave, granted, sold, transferred and set over to said grantees, the sum of $500,000, consisting of railroad bonds, bonds and mortgages, promissory notes and cash, which were more particularly described in a schedule annexed to the deed.

Such transfer was made upon trust to collect and receive the rents, income and profits arising from said personal property, and after deducting all the necessary expenses and charges, to divide the same into ten equal parts, and pay one of such parts to each of the children of the grantor who were in said deed specifically named, during their natural lives, such division and payment to be made to them as well as to their issue, representatives or survivors, hereinafter mentioned, semi-annually, and at such times as the majority of the grantees might deem most conducive to the performance of the trust.

It was further provided in the said deed that in case of the death of any of the above-mentioned children, leaving lawful issue him or her surviving, the trustees should dispose of the share of the interest in the common profits aforesaid, of the child so dying in such manner, as such child may by last will and testament have directed; but in the event of such child leaving no will, to pay to the issue of such child the share or portion of the interest, income and profits of such deceased child.

The deed then provides, that on the death of the last survivor of the said ten children, the trustees shall divide the property then in their hands into as many shares as there were children who died, leaving lawful issue them surviving at the time of such division, to set apart one share for each of said children so dying, and to dispose of the share so set apart among the issue of any such child in such manner as such child shall have directed by last will and testament; or, if such child shall have died intestate, to pay the same to his or her children or next of kin. After the execution and delivery of this deed, George R. Mackenzie, while temporarily absent from this country, made his last will and testament at the city of London, England, dated July 28, 1887, the sixth clause of which is as follows :

“ Sixth. I give and bequeath the sum of five hundred thousand dollars unto my sons, Alexander Mackenzie and Hugh R. Mackenzie, my sons-in-law, Charles Elkin and Peter Alexander and Robert T. B. Easton, and their successors, as trustees, under and by virtue of a certain instrument of trust, executed by me and said trustees at Jersey City in the state of Hew Jersey, on the 1st day of March, 1887, the said sum of five hundred thousand dollars to be received bv said v trustees and their successors as trustees as aforesaid, and by them added to and become a part of the trust fund or estate created by said trust instrument, and subject to all the terms and conditions thereof to the same extent as if the said amount hereby devised and bequeathed had been added to and made part of said trust fund or estate at the time the same was created.”

It will be observed that in the trust deed and in the will George R. Mackenzie describes himself as of Jersey City in the state of Hew Jersey. George R. Mackenzie died at Jersey City on the 6th day of January, 1892, leaving numerous heirs at law and next of kin, who are the defendants in this action. It is claimed by the plaintiffs, who are his executors, that the decedent was a resident of Sullivan county in this state at the time of the execution of the will and at the time of his death. The will was admitted to probate by the surrogate of Sullivan county, in this state, on the 16th day of March, 1892, as a will of real and personal estate, and letters testamentary were issued to the plaintiffs, as his executors. The $500,000 bequeathed by the sixth paragraph of the will, has come into the plaintiffs’ hands, and this action is for the purpose of obtaining a judicial construction of the will respecting that sum, it being claimed by the plaintiffs that, under the laws of this state, the bequest is invalid, inasmuch as the absolute ownership of the $500,000 is suspended for more than two lives in being at the time of the death of the testator.

' By the terms of the trust relating to the $500,000 conveyed and set apart for the children of George R. Mackenzie, the ultimate division of the fund is not to take effect until the death of the last of the ten children therein named. This would be fatal, in this state, to the trust, as an illegal suspension of the power of alienation ;* but the evidence shows that such a trust is valid under the laws of New Jersey.

It is claimed by the plaintiffs that, as George R. Mackenzie’s domicile, at the -time of his death, was in this state, his will, as to his personal property, must be construed according to the law of this state.

The defendants claim that under the evidence, which shows that the testator had two residences, it ought to be found, as matter of fact, that he resided in Jersey City, and that, even though it should be assumed that the testator’s domicile was in New York, the bequest must be sustained, because the bequest was to be added to a trust fund which was valid under the laws of New Jersey.

I think that, on the evidence, there can be no doubt that the testator’s domicile was in the state of New 'York. Glen Spey, the place which he had selected, in Sullivan county, for his residence during the greater portion of the year, was regarded by him as his domicile or permanent home. He had for years voted in that county. As late as the 12th of May, 1890, he had sworn, in applying to be excused from serving as a juror in New Jersey, that he was, and for fifteen years last past had been, a resident of Glen Spey, Sullivan county, in the state of New York. It was his custom to go to Jersey City after the fall election in November, and to take his family out again in the spring, as soon as the weather would permit. He took his library there, and the house was fitted for winter as well as summer occupation.

Furthermore, the testator was elected and served as a school trustee and was also the postmaster at Glen Spey. The mere fact that the testator is described in the will and in the deed of trust as of Jersey City and that he spent his winters at that place, cannot overcome these facts, and I must, therefore, hold that the decedent was a resident of this state.

If the domicile of the testator was in the state of New York at the time of his death, any disposition of his property in his will, which was in contravention of the laws of this state, is, of course, invalid.

The latest case upon this subject is that of Cross v. United States Trust Company, 131 N. Y. 332, in which the doctrine was reaffirmed that personal property is subject to the law of the owner’s domicile, both in respect to a disposition of it by acts writer vimos and to its transmission by will or by succession upon the owner dying intestate.

In that case the court held, where a resident of Rhode Island had created a trust in personal property, to be administered in this state, which trust was in contravention of the statute of this state against perpetuities, that the validity of the trust was to be determined by the laws of Rhode Island, and it being valid under those laws, an action was not maintainable here to have it declared invalid.

Applying the principles reasserted in that case to the case at bar, it seems clear that the sixth clause of the will of George R. Mackenzie, whose domicile was in this state, must be declared to be invalid, inasmuch as the absolute power of alienation is thereby suspended for more than two lives in being at the time of the testator’s death.

Settle findings on two days’ notice.

Judgment accordingly.  