
    Elias Kahn and Others, Respondents, v. Michael J. Tierney, as Executor, etc., of Joseph L. Heymann, Deceased, and Others, Appellants.
    Second Department,
    December 30, 1909.
    Trust — suspension of power of alienation — duration of trust controlling — trust for definite period otherwise measured by lives in being — period need not be measured by lives of beneficiaries — construction — intent of testator governs — trust not unlawfully suspending power'Of, alienation. O ' " /
    In determining whether a trust violates the statutes limiting the suspension of. power of alienation or the absolute ownership of personal property, only the duration of the trust term should be considered, not the nature of the trust . property or the objects of the trust.
    A trust may be created for a definite period, if coupled with a proviso that it shall determine on the death of persons in being at the time of the creation of the trust as permitted by the statutes forbidding perpetuities.
    It is notnecessary that the beneficiaries of the trust or any of them should be identical with the persons whose lives measure the trust term.
    No trust can survive the purpose of its creation, and when that is accomplished it necessarily terminates.
    In construing a will, the intent of the testator must be discovered, and, if possible, carried into effect. If a will be susceptible of two interpretations, that will be adopted which validates its provisions and gives effect to the disposition of property rather than that which will destroy it.
    A will giving property in trust, income payable to K. for the use and benefit of her five children named, and providing that as each child arrives at majority, the trustee shall pay to her $l,0p0 of the principal, the share, of the principal of any child dying before majority to be paid on the happening of that event to K., and further providing that at the expiration of five years from the majority of the youngest of said children, or from her death within that period, the trustee shall pay the whole trust estate to K., if living, and if dead to the living heirs of her body,, does not unlawfully suspend the power of alienation or the absolute ownership of personal property, for in any event the trust cannot extend beyond the lives of K. and her youngest daughter.
    Such construction will be given although the testator stated that the trust was to determine “ from ” the death of the youngest daughter instead of at her death, for the latter was his evident intention.
    Appeal by the defendants, Michael J. Tierney, as executor, etc.? and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the. county of Kings, on the 17th day of June, 1909, upon the decision of the court rendered after a trial before the court without a jury at the Kings County Trial Term.
    
      John J. Crénnan [John F. Coffin, guardian ad litem for infant appellants Klein, with him on the -brief], for the appellant Tierney.
    
      Richards Mott Cahoone [Frederick 3. Chase with him on the brief], for the appellant Pauline Klein.
    
      Louis Frankel, for the respondents.
   Burr, J.:

The clauses of the last will and testament of Joseph L. Heymann which he attempts to dispose of his estate are as follows:

“ Second. I give and devise my house and land known as Ho. 577 Henry Street, Brooklyn, Hew York, where ! now reside, to Mrs. Pauline Klein, the wife of Bernard Klein, who resides with and has cared for me.

Third. All the rest, residue and remainder of my estate of every name and nature, and wheresoever the same may be situated, I give, devise and bequeath to my executor hereinafter named, in trust, nevertheless, to invest and keep the same invested, collect the income and earnings thereof, and pay the same semi-annually to the. aforesaid Mrs. Pauline Klein for the use and benefit of her five children, Mignion, Corinne, Margaret, Amy and Eveline, and as each of the said' children arrives at the age of twenty-one years my said executor shall pay to her of the principal of said estate the sum . of One thousand dollars, the said share of the principal of any child dying before attaining that age to be paid upon the happening of that event to her mother; and at the expiration of five years from the arriving at twenty-one years of age of the youngest of said children, or from her death, should she die before reaching that age, then my said executor shall pay the residue of my said estate to the said Pauline Klein, if living, and, if dead, the living heirs of her body.”

From a decision of the Special Term of the Supreme Court to the effect that the 3d clause of the will abo ve quoted is invalid this appeal is taken. “ Every * * * trust has three separate elements intertwined closely, but capable of independent consideration and treatment. These are the trust property, the trust objects, and the trust term.” (Crooke v. County of Kings, 97 N. Y. 421,436.) The first element relates to the property subjected to the trust, the second to those for whose benefit it may be created, and the third to the time during which it may continue. The statute against perpetuities deals only with the third and last element, the duration of the trust or the lawful suspension of the power of alienation.” (Id.) By force of the provisions of the statute no valid trust in real property can be created “ for a longer period than during the conx" anee of not more than two lives in being at the creation estate ” (Beal Prop. Law [Gen. Laws, chap. 46; Laws o chap. 547], § 32), and “ The absolute ownership of personal prop shall not be suspended by any limitation or condition for a Ions period than during the continuance and until the termination of not more than two lives in being at the date of the instrument containing such limitation or condition, or, if such instrument be a will, for not more than two lives in being at the death of the testator.” (Pers. Prop. Law [Gen. Laws, chap. 47; Laws of 1897, chap. 417], § 2.) It may be made to terminate, however, at an earlier period, and it is no objection to the validity of such a trust that this is a fixed and definite period provided that fixed period must terminate within two lives. For instance, such fixed period may" be when all three children of the testator who are infants at the date of testa,tor’s death attain the age of twenty-one yea,rs, provided this is within another period of duration the extreme limit of which is a life in being at the creation thereof, to. wit, the testator’s wife. (Provost v. Provost, 70 N. Y. 141; Manice v. Manice 43 id. 303.) It is not necessary that all of the beneficiaries of the trust or even that any of them should be identical with those whose lives measure the duration of the trust term. These lives may be those of persons who are total strangers to the trust objects. (Bailey v. Bailey, 97 N. Y. 460; Crooke v. County of Kings, supra; Bird v. Pickford, 141 N. Y. 18; Schermerhorn v. Cotting, 131 id. 48.) No trust'can • survive the purpose of its creation, and when that is accomplished the trust must of necessity terminate."' (Real Prop. Law, § 89 ; Watkins v. Reynolds, 123 N. Y. 211; Manice v. Manice, supra, 363; Burke v. O'Brien, 115 App. Div. 574.) This period of duration is aptly described by Judge Finch" in the Groolce case as the. “ natural term ” as distinguished from the stipulated term,” which is the close of the selected and designated lives. He says : The natural term," which is the lives of all the beneficiaries, and the stipulated term, I which is the close of the selected and designated lives, may either, 1 taken separately, work out an unlawful trust; while construed" together and in combination, as they should be, they bring the trust within the requirements, of the statute. The natural term alone Vmight make the trust last beyond, the lawful extent of two lives in iqiqg. The stipulated term alone might go beyond the lives of the 3é|i§ficiaries, but the two combined "and made elements of the trust, •in its-creation, effect a lawful duration and limit the trust to the stipulated term, unless before it is reached the natural term expires, or to ■ the natural term unless before it is reached the stipulated term expires. Unless the language of. the will creating the-trust imperatively forbids, where both terms áre present as elements of the creation, it must be construed to run for the natural term, except as shortened by the stipulated term; or for the stipulated term except as shortened by the natural term.” In construing the will then under consideration the. court said : The trust created is limited for its beneficial objects, and so for its natural term, upon the nine lives of the children, which would violate' the statute- by an unlawful suspension ; but ’the trouble is ’corrected and- made harmless by the presence also of a stipulated term, the one life, of the trustee^ beyond which the natural term is not allowed- to, run,, and which in turn is itself modified so that it cannot carry the trust beyond the natural term. The trust can outrun neither.” Keeping these principles in mind, and also the cardinal rule relating to the construction of wills that the intent of the testator must he discovered and if possible carried into effect, and that if a will is susceptible of two interpretations, that shall be adopted which will validate the provision and give effect to the disposition rather than that which will destroy it (2 Jarm. Wills [6th Am. ed.], 772, rule 16), let us consider, first, what is the trust property disposed of by this will; second, who are the trust objects, and, third, what is the trust term? The answer to the first inquiry is not difficult. It is all of testator’s' property except his house and land at 577 Henry street. The immediate objects of the trust are the five children of Pauline Klein, named by the testator. The income and earnings of the trust are to be paid by the executor named in the will to Pauline Klein “ for [their] use and benefit.” It is true that indirectly Mrs. Klein also receives a benefit, for she is relieved to that extent of any obligation, legal or moral, to provide for their support and maintenance. But, if they should all die during her life, the purpose of the trust would be accomplished, and it must of necessity terminate. Mrs. Klein could not then call upon the executor to pay over the income of the said estate to her, for she is not entitled to use any part of such income for her own use and benefit. The duration of the' term of the trust presents a more difficult question. The lives of these five children constitute what Judge Finch has designated as the “ natural term,” and if the testator’s will had been that the executor should collect the “ income and earnings ” of his residuary estate, and apply them to the use and benefit of the five children of Pauline Klein without further direction or limitation, it might well follow that as the natural term was the only designated term the trust would violate the statute of perpetuities. But the testator did go further. He fixed three stipulated terms. The first stipulated term was the life of Pauline Klein. The income was to be paid to her, and to her only, and of necessity this1 must be during her life. As we have suggested, while the direct purpose of the trust was to provide for the use and benefit of Mrs. Klein’s children until they were able to provide for themselves, an indirect purpose also appears, namely, to relieve Mrs. Klein from that burden and responsibility. If this were all that the will said on the subject, the trust could not, therefore, survive the period when this responsibility ceased. Again quoting from Judge Finch’s opinion in the OrooTce case, the trust “ must be construed to run for the natural term, except as shortened by the stipulated term; or for the stipulated term, except as shortened by the natural term.” That is, in the absence of any other prdvision in the will, the income of the estate would be paid- to Mrs. Klein for her life, which was the stipulated term, unless during her life the natural term expired because all of her children for whose use and benefit the income was received by her should die, or during the lives of all of said children (the natural term) unless during their lives the stipulated term was reached by the death of Mrs. Klein. So far the entire scheme of the will was within the life of Mrs. Klein. In the absence of further provisions, the principal of the estate must then be disposed of. But the testator fixed another period as the limit of the stipulated term. This second-period might or might not be within the life of Pauline Klein. He provided that when Eveline, who was the youngest of the five children named by him, was twenty-six years of age (his language was “ at the expiration of five years from' the arriving at. twenty-one years of age”), then the trust should terminate, and the entire residue . of the estate should be paid to Mrs. Klein, if living, ‘or if not, to the “living heirs of her body.” Here, again, the natural term, the lives of all five of -the children,, might be shortened by the expiration of this stipulated term, although in this instance the stipulated term could not be shortened, since the life of Eveline was a part both of the natural and the stipulated term. But he realized that Eveline might not 1-ive to be twenty-six years of age, and so he added a further clause to .the effect that the principal of the said estate should be paid over to Mrs. Klein if living, -or if dead, to the living heirs of her body, “ from her [Eveline’s] death, should she die before . reaching that age.” What age did he refer to ? Manifestly five years after she arrived at. twenty-one, or when she was twenty-six. When we consider that the primary purpose' of his testamentary scheme was to provide for the children of Mrs. Klein. until such time as they would in all probability be no longer dependent upon her, and the secondary purpose was to relieve her from the burden of such support, during that interval, and that it was then his purpose to give his entire estate which then remained to Mrs. Klein if living, it seems clear that the words “five years from ” must be limited to the immediately succeeding words “ the arriving at twenty-one years of age,” and not be carried over' to qualify the succeeding clause “ from her death.” If Eveline died at twenty-five- years' of age, there could be no purpose suggested why the trust should be longer continued, since as she was the youngest of Mrs. Klein’s children, it may be assumed that the others were already in a position where they were not dependent upon the proceeds of the trust for their support and maintenance. No reason can be suggested why, if Eveline died at twenty-five, the trust should be continued for four years longer than if she had lived to be twenty-six. It is true that Eveline might die the year after the testator, instead of at twenty-five, and that the trust term, so far as it was measured by this clause of the will, would be greatly diminished, but this uncertainty always attaches to the duration of a trust term limited upon lives. We may assume that the testator framed his will with knowledge of the provisions of the law limiting his power of testamentary disposition, and since this construction of the will will establish rather than destroy its validity, if possible we must follow it. It may be urged that a more apt form of expression to sustain this construction would have been “ at her death ” rather than “ from her death.” Even so, if we are sure that we know the testator’s intention, the court will change a word when it appears from the context of the will that the word was incorrectly employed by the testator in place of some other word. (Theobald Wills [5th ed.], 661; Scliouler Wills, § 477; 1 Jarm. Wills [6th Am. ed.], *469; Smart v. Clark, 3 Russ. 365; Du Bois v. Ray, 35 N. Y. 162.) If this be the correct view of testator’s intention, then the construction here advised produces this result: The stipulated term of the duration of the trust cannot be extended beyond the lives of Mrs- Klein and Eveline. This may be shortened, first, by the death of all the children during her life, or in part by the death or arrival of each of the children at twenty-one years of age during her life, when portions of the principal of the said estate were to be paid either to the children or to Mrs. Klein and. the trust as to such portion terminate, or by the death of Eve-line or her arrival at twenty-six years of age either before or after the death of her mother. In no event can the stipulated term of the trust extend beyond the life of Pauline Klein and her daughter Eveline.

The judgment appealed from should be reversed and, as the action cannot be maintained, the complaint should be dismissed, with costs.

Woodward, Jenks, High and Miller, JJ., concurred.

Judgment reversed, with costs, and complaint dismissed, with costs.  