
    Katie T. Schermerhorn et al., Adm’rs, Resp’ts, v. James Cotting et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed January 26, 1892.)
    
    1. Will—Trust—Alienation nor more than two lives.
    A testator devised his residuary estate to his brother in trust to pay over to his widow one-third of the net income, rents and profits, and one-third to a daughter and one-third to a son; in the event of the death of the son or daughter, the widow was to receive one-half of the income and the surviving son or daughter the other half; and in case of the death of both son and daughter intestate, and without issue, the widow was to receive the whole income. But in regard to the son’s (a minor’s) share, the trus'.ee was to accumulate the income and make only certain payments up to certain ages; if the son died during the widow’s lifetime, one-half of the income was to go to the widow during life, and the other half to the daughter; if the son be dead at the death of the widow, the whole income to go to the daughter. Held, that there was no undue suspension of the power of alienation. Although the trust would last through three lives, yet the will would be valid, because it would be limited upon the one selected, life, viz., that of the wife.
    2. Same.
    A testator may suspend the absolute power of alienation for a period of two selected lives in being at the creation of the estate, and during that time he may make such disposition of the annual income among as many persons as he sees fit.
    3. Same.
    Income and principal given in equal shares out of one fund kept in solido for mere convenience of investment may be severed and independent trusts created for the several beneficiaries, and thus the shares and interests will be several, even though the fund remain undivided.
    4. Same.
    Where a trust is created which by no possibility and in no contingency can endure longer than during the existence of two lives in being, it is of no consequence that if one contingency happen the estate is to be measured by two named lives, or if another contingency happen the estate is-still to be measured by two named lives, one of them different from the-one named in the other contingency.
    Appeal from judgment of the supreme court, general term,, first department, reversing judgment recovered at special term declaring certain trusts invalid.
    
      John L. Cadwalader, for app’lts; Charles Jones, John Al Roosevelt and Frederic J. Middlebrooh, for resp’ts.
    
      
       Reversing 35 St. Rep., 125.
    
   Peckham, J.

It has been held in the court below that this will in one contingency (the death of the son before the wife, and the latter's death before the daughter) illegally attempted to suspend the absolute power of alienation of the real estate and the absolute ownership of the personal property for a period beyond the existence of not more than two lives in being at the creation of the trust estate. It was stated that in such contingency the trust estate might be limited upon the lives of the son, the wife and the daughter of the testator, and thus three lives instead of two would be the limitation of the trust. If this be the true construction to be given to this will, it might be that the whole trust was illegal, and not simply the remainder over the limit allowed by law. It seems to me, however, that it is not only possible, but proper, to take another view, and to construe the provisions of the will somewhat differently, and at the same time keep clearly within and nearer to the intention of the testator as expressed in the will. The construction that I suggest would also keep the disposition of the property of the testator within the rules of law. Briefly, I think the following is the true construction of this will: After disposing of a part of his property, the testator created a trust estate in the residue for the life of his wife, and provided that, during that time, the income arising from such estate should be divided into three parts, and one part should be paid to his wife, one to his son and one to his daughter. The payment of the one-third to the son was on certain conditions, depending upon his age, not material upon this question.

Upon the death of the wife the whole estate was to be divided into two independent trusts, one in favor of the son and one in favor of the daughter.

I think this construction not only admissible, but clearly demanded upon the authority of the cases in this court herein referred to. Everitt v. Everitt, 29 N. Y., 40; Stevenson v. Lesley, 70 id., 512-516; Monarque v. Monarque, 80 id., 324; Vanderpoel v. Loew, 112 id., 167; 20 St. Rep., 654. The whole estate is bound in solido during the life of the wife, and upon her death the independent trusts provided for by the will come into play, and it follows that the life of the wife must be counted as one of .the lives upon which the independent trusts must be limited. In fact the will does this. And the other life upon which each independent trust could be limited must, of course, in each case have also been in existence at the time of the death of the testator. The will does so provide.

There are two contingencies which could happen in regard to the son. He ■ might survive his mother, the wife of the testator, or he might die before her. The will makes provision for each. We will first assume that the son survives the wife. The trust in favor of the son is upon this construction, and in such contingency, bounded by the life of the wife for one life, and by the son's life for another or by his arrival at the age of thirty years. In such event there is no undue suspension of the power of alienation.

There was, however, one other contingency that could occur which would affect this question, and that was the death of the son before the death of the wife. in mind that the trust estate is to last in any event during the life of ,tke wife, and that the income only is to be divided between the persons entitled to it during such time, if the son die before the wife the only change that occurs is that his share of the income is divided between the wife and the daughter, but in this contingency the trust estate is not limited or bounded by his life, nor does his death in the slightest degree affect it.

That estate continues in exactly the same condition it had been in, and must so continue during the life of the wife. The only difference made by the death of the son is that his share of the income is divided during the wife’s life between her and her daughter. It seems clear that in this contingency the duration of the trust estate is not, and never has been, measured by the life of the son, but by the lives of the wife and daughter.

A testator may suspend the absolute power of alienation for a period of two selected lives in being at the creation of the estate, and during that time he may make such disposition of the annual income among as many persons as he sees fit. Thus having created a trust term which must end within the period required by the statute, he may provide that the income shall be paid during that time to A. for life, remainder to B. for life, remainder to 0. for life, and so on for as many different lives as he chooses, providing the whole trust term must end with the death of the survivor of the two lives.

A limitation of a trust estate for an arbitrary period of time, such as fifty years, is valid, provided a termination at an earlier period is called for by the expiration of two lives in being at the creation of' the trust. If provision be made for such termination, the income of the estate may in the meantime be divided among any number of successive lives. Phelps' Executor v. Pond, 23 N. Y., 69. The statute is satisfied by the absolute necessity for the termination of the trust at the expiration of the two lives, and what may be done with the income in the meantime is, so far as this question is concerned, wholly immaterial. In this case the income from the trust estate may be paid according to the terms of the will during the lives of the son, the daughter and the wife, and to the wife as the survivor of both, provided they die before her intestate and without lawful issue, in which case she would be entitled to the whole income during her life. In this event it would happen that the trust would last during three lives, and yet it would be valid because it would be limited upon the one selected life, viz., that of the wife.

It is true the will does not in terms provide for the event of the death of the son subsequent to the wife, and before he arrives at the age of thirty, intestate and wdtho'ut issue. I think, however, the whole scheme of the instrument shows what was the intention in such event,, and that enough of such intention,is stated to permit of its being carried out, __ The testator provided specifically for the payment of the income of one-half of the estate to the son or to his guardian for his benefit, subsequent to the death of the wife and prior to the arrival of the son at the age of thirty years, and lie provided that, if the son died after the wife and before he arrived at that age, the share of the property intended for him. should go to such persons as the son should, by will, appoint, or, in default of appointment, to his children. This gift of the immediate income to the son or to his guardian for his benefit, indicates an intention to vest in the son the corpus from which such income is derived. Robert v. Corning, 89 N. Y., 225, 241. This intention is actually carried out in terms in the will incase the son arrives at the age of thirty years, or, if he die before that time, in case he makes a disposition by will, and in default of making such disposition then by the will, the share is to go to his issue. The one event, that of1 dying before thirty, intestate and without issue, not being specifically provided for, reference may be had to the language of the will generally and to the whole scope and tenor of that instrument, and from such reference it is plain that the corpus was so far vested in the son after the wife’s death, that upon his death before thirty, intestate and without issue, his interest in the one-half share of his father’s estate passed to and vested in his heirs and next of kin, freed from any trust whatever. The same result follows in the case of the daughter dying subsequent to the wife, intestate and without issue and before the son arrives at the age of thirty years. The share of the original estate which would come to the daughter vested in her after the death of the wife (her mother).

From that time the will specifically provided for the gift of the income from one-half of the original estate to the daughter, with a right in her to dispose of it by will, and in default of such disposition it was to go to her children. From all this it is clear that tbe corpus was so far vested in the daughter that in case of her dying without making any appointment by will, and without-any children, her share in the estate would pass to and vest in her heirs and next of kin, freed from any trust.

This construction prevents the trust in either part from enduring beyond the lives of the wife and daughter in one case, and of the wife and son in the other, and upon the death of the son or daughter at any time subsequent to the death of the wife, even if without issue and intestate, the property is freed from the trust and goes in the latter event to the heirs and next of kin.

I think the construction above outlined may fairly be held to-answer the objections set up by the counsel for the respondents to the validity of this trust for the son. If the son die before the wife, we have seen that the trust estate is limited by the lives of the wife and daughter, and is therefore valid; If the wife die and leave the son and daughter both surviving, the will has provided for two independent trusts, and each lasts only during the life of the son or daughter, respectively, or until the son arrives at the-age of thirty years.

The provisions of the third subdivision of the fourth clause in the will do not render it necessary to keep the whole, trust estate undivided after the death of the wife and until the son arrives at the age of twenty-five years. The payments which are therein directed to be made to the guardian of the son and to the son are not to be deducted from the amount of the whole income of the undivided trust estate. This result would be at war with the fundamental scheme of the will, which manifestly is predicated upon an equal division of the income from the testator’s property between his wife, son and daughter during his wife’s life, and upon her death between his son and daughter. The payments mentioned in this subdivision are, on the contrary, to be deducted from the son’s share of the property, and the balance of that share after the payments are made is to be accumulated. Hence it is unnecessary to keep the original trust estate together after the wife’s death for the purpose of deducting these sums from the total income'of such estate, and of then dividing the balance between the son and daughter. Even if after the death of the wife the separation of the estate were into undivided halves of income and subsequently of principal, to be paid to the son and daughter and their issue respectively, that fact would not necessarily prove there was no division into separate trusts. Income and principal given in equal shares out of one fund kept in solido for mere convenience of investment may be severed and independent trusts created for the several beneficiaries, and thus the shares and interests will be several, even though the fund remain undivided. This is the result of the case of. Vanderpoel v. Loew, supra. Nothing in Colton v. Fox, 67 N. Y., 348, or in Ward v. Ward, 105 id., 70; 6 St. Rep., 798, is opposed to this view. The facts are entirely different It is, however, not questioned by any that the trust for the accumulation of the surplus income in favor of the son after his arrival at the age of twenty-one years is void. Such surplus goes to the son as presumptively entitled to the next eventual estate. This answers the proposition as to the payment of income.

The further objection is made that there may be a trust for the life of the wife and for the life of the son until he reaches the age of twenty-five, and on the death of the wife the trust would continue during the lives of the daughter and the son until the latter arrived at the age of thirty years or the daughter died, and this would, as claimed, make a trust for three lives and hence illegal. The answer to this proposition, however, has already been given. Treating the estate as a trust for the life of the wife, and then severing the trust estate into two separate and independent trusts for the son and daughter, respectively, during their lives or until the son reaches the age of thirty years, there is no attempt at an invalid suspension of the power of alienation.

If the daughter should die before the wife intestate and without issue, and the wife should then die leaving the son surviving under the age of thirty years, the same answer which has been made in regard to the death of the son before the wife applies in this case. The trust was for the life of the wife, and the death of the daughter in the contingency mentioned before the wife did not affect the trust estate, which in this event would be limited by the lives of the wife and son, or by the life of the wife and upon the son attaining the age of thirty years.

I see no legal or other difficulty in carrying out the intention of the testator on the theory that these trusts are separable after the death of the wife.

I think the whole plan of the will is better carried out on the theory of separable trusts than upon any other. The language of the testator in regard to the payment from the trust estate after the death of the wife may reasonably be regarded as a direction to divide the estate and pay the income of one moiety to the daughter, and that of the other moiety to the son. Other provisions of the will lend color to the correctness of this interpretation; among them is the provision for taking $50,000 from the son’s share as an advancement to him, and giving him the rents and profits arising thereafter from his share of the estate, and deducting the said sum of $50,000 from the principal of his share. And the principal is to be charged to him when he is paid at the age of thirty the full amount of his share in the estate. Some of the provisions in regard to the daughter lead to the same conclusion. It is not material to specifically mention them.

There is one feature resulting from this construction of the will which I have not yet mentioned, but which must be adverted to and decided before we can reach the conclusion that the trusts which are objected to are valid. It has appeared that in the contingency of the death of the son before the wife, the trust term was limited by the lives of the wife and daughter, while upon the other contingency, viz., the death of the wife before the son, the trust in the one-half of the estate was limited by the lives of the wife and son, or upon the life of the wife and the attainment by the son of the age of thirty years. The two lives which govern the duration of the trust in one contingency are not the same two lives which govern its duration in the other. Does this circumstance render the trust void.

I do not see why it should. In no event is there a suspension for more than two lives in being at the creation of the trust, and upon any contingency the trust must determine upon the death of the survivor of two lives in being when it was created.

Contingencies are provided for by the testator, and he says, in effect, that upon the happening of one contingency the trust shall terminate upon the death of my wife and daughter, and upon the happening of the other upon the death of my wife and son. The wife is the one person whose life is counted in both contingencies, and in the one the daughter is added and in the other the son; but one or the other of the two contingencies must happen, and in no event is the trust to endure longer than the two selected lives in being at its creation. Such a provision does not run counter to the views upon which our statute against perpetuities is based. The common law regarded the burden of proof as being upon the party who claimed it to sustain a future gift, and by one decision after another, the courts holding some good and some bad, finally settled down to the rule that all future gifts, to be valid, must be limited to a life or any number of lives in being and for twenty-one years thereafter. 1 Jar. on Wills, 252, 5th Am. ed. Our Revised Statutes limited the term to two lives only, and both must be in being when the estate is created. In this case the two lives are thus in being.

Where a trust is created which by no possibility and in no contingency can endure longer than during the existence of two lives in being, of what consequence can it be that if one contingency happen, the estate is to be measured by two named lives, and if the other contingency happen, the estate is still to be measured by two named lives, but one of them is different from the one named in the other contingency ? So long as both contingencies cannot, happen the number of lives upon whose duration the trust term is to be limited cannot be more than two actually named and in existence when the trust was created. I cannot discover any reason which forbids such a contingency and such a limitation imposed thereon. I have not been able to discover any authorities upon this precise point, and we must, therefore, rest our decision upon the general principle that so long as the trust can last but two lives, which two shall be the selected ones may be left to the happening of a contingency such as exists in this case.

The construction which we have above given would leave the main trusts of the will valid. All concede the invalidity of the trust for the accumulation of the income. The special term while holding the main trust valid, adjudged that relating to the accumulation to be void. We think the special term was right.

The judgment of the general term must, therefore, be reversed and that of the special term affirmed, with costs of all parties to be paid from the estate.

All concur.  