
    In the Matter of the Probate of the Last Will and Testament of Harvey N. Dewitt, Deceased. Lillie M. Dewitt, Appellant ; Robert H. Clark, as Executor, etc., of Harvey N. Dewitt, Deceased, Respondent.
    Second Department,
    June 8, 1906.
    Will — unlawful trust of personal . property in perpetuity.— when residuary "clause fails with invalid trust — surrogate must admit to ' probate will duly "executed malting a valid disposition of real estate."
    .A testator ordered a sale of his real estate by his executor, and’from the proceeds thereof and 'from the personal property directed the purchase of a cemetery lot, the removal thereto of his “father’s family dead,’’ and the purchase of monuments, etc. The will then provided for the setting apart by his executor ■ of a fund to produce interest sufficient tó provide for the care of the cemetery . lots and graves, said sum to be held in trust in perpetuity, the residue, of the estate to his executor in payment for services.,
    
      Reid, that the-will was invalid as an unlawful suspension of the absolute ownership of personal property; ' '
    "That the residuary clause was dependent upon the execution of the invalid trust and failed with it; ■ .
    .That-so far as the real property was concerned the surrogate’s jurisdiction.was limited, to questions of execution and testamentary capacity, and that he was required to admit the will to probate as a will valid to dispose of real property.
    Appeal by Lillie M. Dewitt from that part of a decree of the 'Surrogate’s Court of the county of Orange, entered in" said Surrogate’s Court on the 10th day of October, 1904, which admits to "probate certain portions of the will of Harvey Ñ.. Dewitt, deceased.
    
      John A. Kemp, for the appellant,
    
      John F. Halstead, for the respondent.
   Miller, J.:

. A testator, possessed of personal property amounting to $3,800, and real estate of the value of $800, provided by his. will, first, for the payment of his debts; second for the sale of his real, estate by his executor, and for the purchase, from the proceeds of such sale and from his personal estate, of a cemetery lot in a cemetery named, the removal • thereto of his father’s family dead,” and the purchase and erection of a suitable monument and markers; third, for the setting . apart by his executor of a'fund- to produce interest sufficient to provide for the care of said cemetery lot and graves, said fund to be held in trust in perpetuity; fourth, for the disposition of the residue in the following language: “ Whatever residue or remainder, if any, there may be left of my estate after paying my debts, the expenses incurred in its settlement, and in performing and carrying out the provisions and directions hereinbefore stated and ordered by me, and after paying all costs and charges therefor, I give and bequeath such residue and remainder of my estate to my Executor, Robert H. Clark, as payment for his services as such Executor in the settlement of my estate.”

The appellant, the sole heir at law and next of kin, objected to the probate of the will and insisted that its provisions were invalid, and thus the surrogate was required'to pass upon its validity to pass personal property. (Code Civ. Proc. § 2624 ; Matter of Austin, 35 App. Div. 278.) The learned surrogate held that the 3d clause of the will was void as being an unlawful suspension of the absolute ownership of personal property, and both sides concede that this determination was correct (see Read v. Williams, 125 N. Y. 560), and the appellant insists that the 3d clause failing, the entire will fails, upon the well-settled rule'that where valid and invalid por- , tions of a will are so interdependent as to constitute one scheme, so that the presumed wishes of the testator would be defeated if one portion was retained and the other portion.was rejected,: the entire will fails. (Beekman v. Bonsor, 23 N. Y. 298, 311 ; Tilden v. Green, 130 id. 29, 50 ; Kalish v. Kalish, 166 id. 368, 375.) It is plain that the testator intended to provide a single scheme, and it is equally plain that if the construction contended for by the respondent is to be indulged in, a.result will be accomplished which" the testator never contemplated. . The respondent 'contends that the portion attempted to be disposed of by the 3d clause falls into the . residuum under the. general rule, that a general residuary clause 'carries all personal property not. validly disposed of, but the clause in question is" not a general residuary clause, • It is clearly so cir.cuinscribed as to be confined to the portion of the. estate left after carrying out the other provisions and directions of the will (Matter of Benson, 96 N. Y. 499, 510 ; Kerr v. Dougherty, 79 id. 327); in • fact it is a residue of a residue (Beekman v. Bonsor, supra), and it . was plainly the intention of the testator that the executor shoiild only have such sum-as was left af ten carrying out all of the provisions of lvis will, and tliis sum was intended rather as a compensation for his'services in carrying out such provisions than as a gift, .and upon the question ‘whether property, ineffectually disposed of by specific legacies, falls into the residuum, the intention of the testatpr is controlling as upon all other questions respecting the interpretation of the will. (Carter v. Board of Education, 144 N. Y. 621.) It is plain that the residuary clause must .fail within the rule stated in Beekman v. Bonsor (supra) for the reason that it is the residue of a sum devoted to an invalid prior purpose the amount of which is' uncertain, The respondent, however, contends that such sum is not uncertain, and relies upon propf in the record to the effect that two dollars a year would be sufficient to care for the lot and .graves. This Suggestion, however, emphasizes the point that if this will is sustained a result will be accomplished which the testator never thought of, because- thereby the executor, the son of the draftsman of the will, and a stranger, in blood to the testator, will be able to get the major portion, of the estate instead off the sum which ,the testator plainly contemplated should be merely compensation for his services, because, upon the basis of the two dollars a year to be expended in the care óf the lot, it can easily be inferred how -much the executor will spend in carrying out. the second provision of the will. The testator’s scheme -clearly was the devotion of his estate to the purchase of a-cemetery lot, the removal of his family .dead thereto, and the care and maintenance of such lot, the residuary clause being' intended solely to compensate the executor, for his services.

The third provision is a necessary part of the scheme, and, this failing, it is plain that a result will be accomplished which the testator never contemplated, if the rest is permitted to stand. The surrogate, however, was required to admit the will to probate as a will valid to dispose of real property, as, so far as the disposition of the real property was concerned, his jurisdiction was limited to the question of execution and testamentary capacity. (Matter of Merriam, 136 N. Y. 58.) The decree should be modified to the extent of adjudging the will invalid to dispose of the personal property, and, as thus modified affirmed, without costs.

Hirschberg, P. J., Woodward, Gay nor and Rich, JJ., concurred.

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Decree of the Surrogate’s Court of Orange county modified to the extent of adjudging* the will invalid to dispose of the personal property, and as modified affirmed, without costs.  