
    Matter of the Judicial Settlement of the Account of Horace L. Ingersoll, as Executor, etc., of Henrey S. Ingersoll, Deceased.
    (Surrogate’s Court, Kings County,
    November, 1903.)
    Testamentary trust — Construed so as to avoid an illegal suspension of the power of alienation — Executor refused commissions.
    Where the evident intention of a testator was to provide by his will for the children of his nephew, of whom there were five at the time he made his will and when he died, the surrogate, in order to avoid an illegal suspension of the power of alienation, construed a gift of one-half of the estate to the executor to be held in trust and invested by him and the income, and so much of the principal as he deemed necessary, to be applied to the children’s education, maintenance and support, as creating five separate valid trusts, one for each child.
    Where the executor and trustee had never taken any steps to procure a judicial construction of this gift and had persistently refused to pay the children anything under it, the surrogate refused him commissions on a compulsory final accounting as executor.
    
      Proceedings upon the judicial settlement of the accounts of an executor.
    John J. O’Brien, for executor.
    Francis B. Chedsey, for Horace Ingersoll..
    Brennan & Curran, for Kate Ingersoll Walker.
   Church, S.

Upon the settlement of the executor’s accounts herein the question is raised as to the validity of a certain provision in the will of the deceased. The clause in question provides as follows: "Seventh. * * * The other of said equal one half Parts, I give, devise and bequeath to said Horace L. Ingersoll, to be held by him in trust nevertheless, to invest the same in such manner as he shall deem wise and apply the income thereof and so much of the principal as he may deem necessary to the education, maintenance and support of the children of my nephew Henry F. Ingersoll.”

It appears that the said Henry F. Ingersoll, at the date of the will and at the time of decedent’s death, had five children, two of whom are now of age.

It is contended herein, on the part of the executor, that this provision in question is void in consequence of there being a suspension of the power of alienation for more than two lives in being, namely: During the lives in being of the said five children of Henry F. Ingersoll.

While in a plain case the courts should, without any faltering, declare a provision to be invalid, yet, if the matter is somewhat obscure, so that the declaring of any provision invalid would do violation to the intent of the testator, then it is the duty of the court, if possible, to give the matter such a construction as will effectuate the intention of the testator, and yet make such provision perfectly legal and valid.

It needs no words of mine to show that it was plainly the desire of this testator to provide for these children of his nephew. It does not appear who drafted the will, or whether it was done by an attorney, or by some person assuming to have certain capability in this line. It is apparent, however, that if we regard) this trust as one created for the benefit of the various children, individually, and not collectively, that then it would be valid.

With the intent of the testator, in mind, therefore, and with the knowledge that if this trust was intended to be for the benefit of these children collectively that it would be plainly invalid, it seems that the proper interpretation of this will is to regard that this trust is to be for the benefit of these children, individually, as effectually as if it had expressly so provided.

With this interpretation in mind the direction of the application of so much of the principal as may be deemed wise for the education, support and maintenance is simplified, as if in the judgment of the trustee any one particular child needs more than the income of the specific amount held in trust for him the trustee may apply such proportion of the principal as, in his judgment, is proper.

The trustee named in the will should, therefore, treat this provision as five separate trusts for the benefit of each of the children of said Henry F. Ingersoll.

Objection is made to the payment of commissions to the executor herein on account of the fact that he has arbitrarily refused to make any of these payments, and has done nothing to endeavor to get a construction upon this provision until this final compulsory accounting. It is true that the offices ■ of executor and trustee are separate ones and that a trustee, of course, cannot act until the money is turned over to him by the executor, but in this case the same person filled both places. The relations were interblended and it was evidently the intention of the testator that the payment of these proportions of the estate should begin immediately after his death. The executor herein, having doubted the validity of the provision of the will, should have, upon the probate, asked for a construction of the same under the appropriate provision of the Code, and he at least could have treated the request of these children for money with some degree of courtesy. It appears that there has been absolutely no answer whatever of any kind made to their demands for money, nor has there been any explanation or suggestion as to his conduct in the matter. •

Under the circumstances, it seems to me that to allow him his commissions would be in the nature of rewarding improper conduct.

Decreed accordingly.  