
    The People's Trust Co., as Substituted Trustee under the Will of Johh Flynn, Plaintiff, v. Mary C. Flynn et al., Defendants.
    (Supreme Court, Kings Special Term for Trials,
    December, 1905.)
    Suspension of power of alienation — Conditions determining validity of suspension — Suspension for more than two lives.
    Wills — Interpretation and construction — Construction to sustain validity.
    Where a testator left his residuary estate to his executors in trust to pay his widow an annuity for life in lieu of dower and, upon the death of his two daughters, gave the estate to their issue; held, on appeal to the Appellate Division, that the trust was void for suspending the power of alienation for the lives of the two daughters and the widow. Upon the new trial granted upon the appeal the trial court, though following the decision of the Appellate Division, expressed the opinion that the testator was content to rely upon the probability that the widow would not outlive both daughters and intended to limit the trust upon the lives of the daughters only, and that such intention should be presumed as it would uphold the testamentary provisions.
    Suit for the construction of the will of John Flynn, deceased, by the substituted trustee under the said will.
    T. Ellett Hodgskin for plaintiff.
    John Delahunty for Mary C. Flynn and others.
    David McClure Guardian ad litem for Charles Egan.
    Robert P. -Orr Guardian ad litem for John Flynn.
    M. F. McGoldrick for defendant Annie D. Flynn.
   Gaynor, J.:

The will leaves the residuary to the executors in trust; the trust expressed being to collect the income and to pay thereout to the widow $1,800 a year for life in lieu of dower; and the remainder, share and share alike, to the testator’s two daughters and three sons, his only children, all named in the will, or to those of them who survive the testator, or to the issue of any who might die either before or after the testator, until the death of the said two daughters. They all survived him, and are still alive except one son.

After creating this trust, the will next provides for its duration and the final distribution, in express terms, as follows:

“ Upon the death of my two daughters Mary and ¡Regina, I give, devise and bequeath the entire estate of which I may die seized”, to the issue of the said daughters, and to the said sons, or the issue of any of them who may be dead, the issue in each case taking per stirpes.

This suit has been tried before. Every party was then satisfied with the family arrangement made by the foregoing trust, as wise and for the benefit of all, and not void - for illegally suspending the absolute power of alienation longer than two lives.

The sole question then litigated was this: One of the said sons had died intestate after the testator, and the remaining four children claimed that his share of income and corpus went to them by the will; whereas, a grandson of the testator (viz., the only child of a child of the testator who had died before the testator made his will), claimed that there was an intestacy in respect of such share, and that he came in by inheritance for a share of it (People’s Trust Co. v. Flynn, 44 Misc. Rep. 6). It was decided that there was an intestacy.

All of the parties acquiesced in the judgment, except the widow, who alone appealed to the Appellate Division, and only because she was not content that the grandson should get anything, as the will mentioned him and sought to prevent him from sharing in the final distribution in any event. ¡No question was argued on appeal except the one tried below, but the learned court, of its own motion, ordered a reargument on the question whether the said trust was not void for suspending the power of alienation for longer than two lives, viz., not only for the lives of the said two daughters upon which the duration of the trust is expressly limited by the will, hut also, by inference, for the additional life of the widow. After reargument, it declared the trust void for being limited on the widow’s life also, to the regret of all the parties, including the widow, now freely expressed to me (People’s Trust Co. v. Flynn, 106 App. Div. 78).

This question is now argued before me on this second trial, and I am asked to uphold the trust; but in view of the ■decision on appeal, though no one asked for or wanted it, I cannot do this, whatever my view may be, or however unfortunate the predicament may be.

But as I am urged by counsel to express my views, as the case is to be again appealed, I may with propriety say that it appears to me that the testator was content to rely •on the human probability that his old wife would not outlive both of his daughters, and to therefore limit the trust which he created for her benefit upon the lives of the said ■daughters, which he did in so many words. This he had the right to do; and it was nothing new that he did; it was and is common for testators to act on such safe probabilities (Buchanan v. Little, 154 N. Y. at p. 152).

And, besides, he was not making an absolute provision for his widow, but only an alternative one subject to her election in lieu of dower. If she should think there was too much risk of both of the daughters dying before her, she was not obliged to take the trust provision to her in lieu of her dower; she was free to elect to take her dower. That is, in fact, what she did; and yet the whole trust is to be declared void, all on the theory that the trust provision for her was of such controlling consideration in the mind of the testator that he must have meant to limit it on her own life in addition to the lives of her two daughters; which the will does not say, but which is drawn as an inference against what may well seem to some of us the plain inference that the testator felt safe to limit the trust for her benefit on the lives of the two daughters for the reason that it was not at all likely that she would survive them. Against this latter inference, the contrary one, that the testator must have meant to take no chance, however remote or improbable, in providing for his widow, and that therefore his intention was to do the illegal and vain thing •of limiting the trust on three lives, including that of the widow, does not seem strong. I understand that the desire of courts is to uphold just testamentary provisions, and that they will not be set at naught except they be plainly illegal. And, in this case, the widow not having taken the trust provision for her at all, there exists no reason to be astute to break the trust on the sole ground that that provision is void.

I think the will shows, on its face, that the testator was advised and Imew that the trust could be limited on not more than two lives and that he acted accordingly.

I have thus given my views in response to the insistence of •counsel, with due respect and submission by all of us to the superior and safer authority of the Appellate Division, and only as a contribution toward the final elucidation of the case.

But judgment must be entered that the trust is void.  