
    Elizabeth Keenan, Appellant, v. Thomas Keenan and Others, Defendants, Impleaded with Ann Duffy Reilly and Others, Appellants, and Garrett Reilly and Others, Respondents.
    Second Department,
    November 29, 1907.
    Will construed.— power of alienation not unlawfully suspended.
    A will which devises lands in trust, income to a son “for a term of five years,” the remainder to bo held in trust for his benefit in the future, and providing that if at the end of five years it shall be found that the son has abstained from intoxicating liquors, the executors may turn over the property to him, with the surplus, or' continue. to hold the same in their discretion, with a further provision that in case said son dies without issue, the lands so devised for his benefit shall go to other children surviving, does not unlawfully suspend the power of alienation.
    A trust to continue for a definite number of years, during which the power of alienation is suspended, is void; but the trust aforesaid, although directing the executors to hold for five years, must end on the death of the beneficiary, and is therefore valid. '
    Separate appeals by the plaintiff, Elizabeth Keenan, and by the defendants, Ann Duffy Eeilly and others, from a judgment of the Supreme Court in favor of certain others of the defendants, entered in the office of the clerk of the county of Kings on the 21st day of February, 1907, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint.
    
      R. M. Cahoone, for the plaintiff, appellant.
    
      James P. Judge [James P. Collins with him on the brief], for the defendants, appellants.
    
      Lewis C. Grover [James W. Redmond with him on the brief], for the respondent Frank Eeilly, as executor.
    
      Thomas E. Pearsall, for the respondent Garrett Reilly.
   Hooker, J. :

The plaintiff and certain defendants appeal from a judgment dismissing the plaintiff’s complaint. The action is- brought under section 1537 of the Code of Civil.Procedure for the partition of certain real property owned by the deceased at the time of his death. The 4th paragraph of his will, which purports to create a trust, is attacked by the plaintiff, and the case turns upon the question whether or not the trust is valid; if so, the plaintiff is not entitled to any relief.

Paragraph 4 of the will, the effect of which is in dispute, is as follows: . .

“ I give and devise .to my executor the three pieces of real estate ■situate on Carroll street in said borough known by the numbers 18 (eighteen), 49 (forty-nine) and 51 (fifty-one), in trust to hold for the' benefit of my said son, Garrett, for the term of five years and pay him from the income forty dollars ($40) per month, and holding the remainder in trust for his benefit in the future, 'and keeping the ■property in fair condition free from arrears of taxes and assessments. If at the end of that period.it shall be found that my son, Garrett, has abstained from intoxicating drink during the same, the-executor may turn over the property to him with the surplus, of income, otherwise he is to continue to hold the saíne as in his judgment it shall seem proper to do so.”

Paragraph 6 of the will is as follows:

I give, devise and bequeath the residue of my estate, if any there be, to my two sons and daughter, and in case my, son, Garrett, shall die without issue, the real estate devised for his benefit shall go to my suiviving son and my daughter equally.”

In addition to the properties mentioned in these paragraphs of the will, the deceased left the contents of liis stable to his son, Garrett Reilly, a house to his daughter, Elizabeth Keenan, this plaintiff, subject to a lien thereon in favor of her children ; a house in trust for the children -of a deceased child; and certain household furniture-to his daughter, this plaintiff.

The plaintiff contends that the attempted devise in the-4th- paragraph of the -will, for the benefit of the son Garretj;, is void because it suspends the power of alienation for more than two lives in being at the time of the creation of the trust; it is to be observed that the trustee is directed to hold the property for five years for the benefit of the son Garrett, and- pay him from the income the sum of forty dollars per month. If the will merely directed that the property be held in trust for a term of years, the trust would, doubtless be void, as offending against the statntes of perpetuities ; for a trust which is. to continue fora definite number of years, during which the power of alienation is suspended, may readily be for a longer period than two lives in being. (Kalish v. Kalish, 166 N. Y. 368 ; Brown v. Quintard, 177 id. 75 ; Hagemeyer v. Saulpaugh, 97 App. Div. 535 ; Haynes v. Sherman, 117 N. Y. 433.) It seems, however, that it was not the intent of the testator absolutely to suspend the power of alienation of these properties for a period of five years; it is true that the testator was to hold them for five years, but this is for the purpose of paying part of the income to the son Garrett; and inasmuch as such payment could not be made after Garrett’s death, the trust must of course cease upon that occurrence, whether it should fall before or after the end of the five-year period; and this scheme is somewhat emphasized by the provision in the 6th paragraph, that if the son Garrett shall die without issue, the real estate devised for his benefit shall go to the surviving son and daughter of the testator equally.

The trust was, therefore, valid. The judgment merely dismisses the complaint, and it does not seem orderly that we discuss other questions in relation to the alleged unlawful accumulation, for they do not appear to be raised by the record. We conclude that the judgment is right and must be affirmed, with costs.

Jekjis, Gaynor, Rich and Miller, JJ., concurred.

Judgment affirmed, with costs: 
      
       See Real Prop. Law (Laws of 1896, chap. 547), § 32; Pers. Prop. Law (Laws of 1897, chap. 417), § 2.— [Rep.
     