
    Mary E. Buchanan, Appellant, v. Sarah J. Little and Others, Respondents.
    
      Trust ■— suspension of the power of alienation —• when annuities cease with a trust.
    
    William H. Cooper devised his residuary estate to -his executors in trust, directing them to pay from the income an annuity to his wife and to his sister, and to apply the remainder of the income, one-half to the use of each of his two daughters, Sarah Jane Little and Mary E. Cooper, for life, providing that in the event of either of his daughters dying without issue during the life of the other, the share of the deceased should go to the survivor, but that if the deceased left issue the share should go to such issue. He then provided as follows: “At the death of my two daughters, Sarah Jane Little and Mary E. Cooper, I give, devise and bequeath all my property, both real and personal, to their children, one-half to the children of each daughter, share and share alike, per stirpes and not per capita. Should either of my said daughters die without leaving lawful issue, then I give all my estate to the children of the other, share and share alike. Should both of my said daughters die without leaving lawful issue, my estate shall then go to my heirs at law.”
    
      Held, that the will created a trust, the duration of which was measured by the lives of the two daughters of the testator and that when they died the trust would terminate and the property vest in the residuary legatees and devisees;
    That the provision relative to the annuities to the wife and sister of the testator did not conflict with this construction, for the reason that both of these annuities would cease and determine with the termination of the trust upon the death of the two daughters;-
    That the fact that the annuity to the wife was stated to be in lieu of dower did not indicate that it was the intention of the testator to continue the annuity during the full term" of her life, irrespective of the fact that the trust might terminate before her death; fii'St, because the trust was limited upon the lives of the daughters who would presumably outlive their mother and also because if the wife preferred her dower she would be at libertyto claim it;
    That the provision “ should either of my said daughters die without leaving lawful issue, then I give all my estate to the children of the other,” was not intended to become operative until the death of the surviving daughter, for. the reason that it was subject to the. provision that the trust was to continue until the death of both daughters;
    That the construction adopted was confirmed by the fact that no disposition had been made of the income of the estate not required for the payment of the annuities after the death, of the daughters, as, had the testator contemplated a continuance of the trust after the death of the daughters, he would have made some disposition of the surplus income.
    Appeal by the plaintiff, Mary E. Buchanan, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 30th day of Decernher, 1895,- upon the decision of the court, rendered after a trial at the New York Special Term dismissing the plaintiff’s complaint.
    The action was brought to obtain a construction of the will of William H. Cooper, deceased, and a partition of certain property.
    The will of William H. Cooper contained the following, among other provisions:
    “ Second. 1 give, devise and bequeath all the remainder of my estate, both real and personal, to my executors hereinafter named, and the survivor of them, in trust, however, for the uses and purposes hereinafter set forth, to take the possession, care and management thereof, to let or lease the real estate and safely invest the personal estate, to collect the rents and income and to pay taxes, assessments, insurance, cost of repairs and other proper charges thereon, and pay over the net income of my said estate, as follows :
    “ls¡5. I direct my said executors to pay my beloved wife, Jane Cooper, the sum of. five hundred dollars per year, each and every year during her natural life, to be paid half-yearly or quarterly, if practicable, which said sum is hereby given her in lieu of dower.
    
      “ 2d. I direct my said executors to .pay to my sister, Rebecca Cooper, the yearly sum of four hundred dollars, each and every year during her natural life, payable quarterly.
    “ 3rd. I direct my said executors to pay all the remainder of the income of my estate, after paying the above-mentioned legacies to my wife and sister as follows: One-half of the remainder of the income of my said estate to my daughter, Sarah Jane Little (formerly Cooper), for and during her natural life, and the other half of the remainder of my said income to my daughter, Mary E. Cooper, for and during her natural life, said income to be paid half-yearly or quarterly, if practicable.
    “ Uh. Should either of my said daughters die without lawful issue, during the life of the other, I give the share of the deceased sister, in my estate to the survivor.
    “ 5th. Should either die during the life of the other, leaving lawful issue, I direct the share of such deceased sister to be paid to her children, share and share alike:
    “6zA At the death of my two daughters, Sarah Jane Little and Mary E. Cooper, I give, devise and bequeath all my property, both real and personal; to their children, one-half to the children of each daughter, share and share alike, per stirpes and not per capita. Should either of my said daughters die without leaving lawful issue, then I give all my estate to the children of the other, share and share alike. Should both of my said daughters die without leaving lawful issue, my estate shall then go to my heirs at law.”
    The complaint demanded judgment:
    “ 1. That the apparent devise of the premises above described by the will of said William H. Cooper, deceased, to the defendants Samuel F. Jayne and Hoses T. Buchanan, as executors of and trustees under said will, be declared null and void, that the provisions of said will in so far as they affect said premises be declared illegal and invalid, and in nowise to affect the disposition of the real property of said William H. Cooper, and that it be declared that the said William H. Cooper died intestate as to the premises above described.
    “ 2. That the part or share of said premises belonging to this plaintiff, and the part or share of each of the other parties to this action of, in or to said premises may be ascertained by and under the direction of this court, and that a partition and division thereof may be made between the said plaintiff and the other parties to this action, according to the respective rights and interests of each therein,” etc.
    
      George S. Namlin, for the appellant.
    
      B. Aymar Sands, G. P. Northrop and Nathaniel Gothren, for the respondents.
   Ingraham, J.:

We agree with the counsel for the appellant in this case that the will created a trust estate in the executors of the entire remainder of the estate and that the real question involved is as to the period during which this trust is to continue If such period is not measured by two lives in being at the time of the death of the testator, or by any contingency can exceed that .period, then the trust is void, but we are of the opinion that the period during which the trust is to continue is measured by two lives in being, namely, the lives of the two daughters of the testator, Sarah J. Little and Hary E. Cooper, and that upon their death the trust terminates and the property vests in the residuary devisees.

By the second clause of the will all of the remainder of the testator’s estate, both real and personal, is devised and bequeathed to liis executors in trust; and then follow provisions giving to the, executors the power necessary for the proper execution of the trust. The direction as to the income of the estate is contained in the first, ■second, third, fourth and fifth subdivisions. In neither of these subdivisions is there any direction as to the period during which the' trust is to continue or as to the disposition of the remainder after the termination of the trust. The first subdivision directs the payment of an annuity to his ijife, which is to be paid to her during her ■life, but this provision as to a payment during her life is necessarily subject to a continuance of the trust during that period.. If the trust by the express provisions of the will should terminate before the death of this annuitant, then, as a matter of course, there being no fund from which this annuity could be paid, the annuity would cease. And the fact' that this annuity .is given in lieu of dower • would not indicate that it-was the intention of the testator to continue the annuity during the life of the annuitant, irrespective of the continuance of the trust, for, in the first place, the persons upon whose lives the trust was limited were the children of the annuitant, who, in the ordinary course of events, would be presumed to live longer than she would, and she was not bound to, accept this provision in lieu of dower if for any reasons she preferred her dower. And so, the direction to the • trustees to pay the testator’s sister the .yearly sum of $400 during her natural life would not be construed to continue the trust for a longer period than by the express provisions of the will it was to continue. Both ■ of these annuities were given subject to the continuance of the trust during the lives of the several annuitants.

By the third subdivision of the second clause of the will the trustees are directed to pay the remaining income of the estate, after paying the annuities to the testator’s wife and sister, one-lialf to the testator’s daughter Sarah Jane Little, for and during her natural life, and the other half to his daughter Mary E. Cooper, for and ■during her natural life.. The fourth and fifth, subdivisions of this •clause provide that after the death of either of the testator’s' daughters the income payable to the one dying shall go to the survivor; ;and by the sixth subdivision of this clause of the will provision is made for the termination "of the trust and the disposition of the property upon such termination. ’ There the language is explicit: “ At the death of my two daughters, Sarah Jane Little and Mary E. Cooper, I give, devise and bequeath all my property, both real and personal, to their children, one-lialf to the children of each daughter,” etc.

Thus, by the express terms of the will, by which the remainder is devised and bequeathed, such devise and bequest over takes effect upon the death of his two daughters. Nothing could be more explicit or clear than that upon the death of the testator’s two daughters the title to this property vests absolutely in the devisees named in the sixth subdivision of the second clause of the will.

The subsequent provisions of the sixth subdivision are perfectly consistent with this construction. The provision, that “ should either of my said daughters die without leaving lawful issue, then I give all my estate to the children of the other,” was not intended to become operative until the death of the surviving daughter, for it was subject to the provision that the trust was .to continue until the death of both daughters. The same may be said of the clause providing for the contingency of' both daughters dying without issue, for in that case, upon the death of the survivor, the property was to go to the testator’s heirs at law. This construction is confirmed by the fact that no disposition is made of the income of the estate not required to pay the annuities to the testator’s wife and sister after the death of both children. If he had contemplated the continuance of the trust after the death of his daughters he would have made some provision for the disposition of such income.

This construction of the will is according to its plain meaning. It is legal, violates no rule of law, nor express or implied intentions of the testator, except his apparent wish that his wife and sister should have their several annuities during their respective lives; and this, in the ordinary course of nature, would be accomplished by the provisions of the will which- limited the duration of the trust estate upon the lives of two persons much younger and more probable to survive than the annuitants.

We think the judgment was clearly right, and that it should be affirmed, with costs.

Van Brunt, P. J., Barrett, Bumsey and O’Brien, JJ., concurred.

Judgment affirmed, with costs.  