
    William J. Kelley, as Substituted Trustee under the Last Will and Testament of Priscilla W. Pike, Deceased, and Ralph W. Maverick, Plaintiffs, v. Sarah M. Hogan, Defendant.
    
      Will giving real property in trust to be delivered to thebeneficia/ry should he return— when a pi'ovision over in case the beneficiary should die in possession and not dispose thereof by will is repugnant to the'first gift.
    
    A will provided, “ I give and bequeath, to my brother Calvin Pike in trust all my real, estate (comprising four lots). The said Calvin Pike is to take the said property in trust for the benefit of my brother Sylvester 3VI. Pike during his absence in foreign parts, and is to deliver up to him the entire possession and control thereof whenever the said Sylvester shall require him to do so; but in case my brother Sylvester should not survive, me, or in case he should not claim of my said Trustee the said property, or in case he should die in the possession-of it without disposing-of the same by Will or Deed, then my said Trustee is to hold the said property in trust under this Will for the benefit of my relative Ralph W. Maverick, now a minor, to be applied by said Trustee for the maintenance of said Ralph and for his education and "to fit him for some useful occupation.” Sylvester M. Pike returned from foreign parts and the real estate was turned over to him by Calvin Pike, who had undertaken the trusteeship. Sylvester M. Pike died without disposing of three of the lots.
    
      Held, that Sylvester M: Pike took an absolute and complete estate in the testatrix’s real property, and that the subsequent provision for Ralph W. Maverick was void on the ground of repugnancy.
    Latjghlin, J., dissented.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    Priscilla W. Pike died in August, 1882, leaving a will which provided : “ I give and bequeath to my brother Calvin Pike in trust all my real estate (comprising four lots). The said Calvin Pike is to take the said property in trust for the benefit of my brother Sylvester M. Pike during his absence in foreign parts, and is to deliver up to him the entire possession and control thereof whenever the said Sylvester shall require him to do so ; but. in case my brother Sylvester should not survive me, or in case he should not claim of my said Trustee the said property, or in case he should die in the possession of it without' disposing of the same by Will or Deed, then my said Trustee is -to hold the said property in trust under this Will for the benefit of my relative Balph W. Maverick, now a minor, to be applied by said Trustee for the maintenance of said Balph and for his education and to fit him for some useful occupation.” . The will also made specific bequests and further provided: “ all the rest of my personal property-I give and bequeath to my brother Calvin in trust for Ralph W. -Maverick as above stated.” Calvin undertook the trusteeship, but Sylvester returned from foreign parts and demanded the entire possession and control of the property, and it was turned over to him; He subsequently sold part of the property, but died in January, 1896, without disposing of three lots, His sole heir was the defendant Sarah M. Hogan. Subsequent to his death, and after Ralph W. Maverick had attained majority, all the heirs of Calvin, who died in 1893, and all the heirs of Priscilla joined in a deed of the three lots not disposed of. by Sylvester in his lifetime, and conveyed the same (if not already hers by inheritance from Sylvester) to the defendant Sarah M. Hogan. Thereafter William J. Kelley was appointed substituted trustee under the will of Priscilla, and- he, with Ralph W. Maverick, now seeks an adjudication that the-defendant Hogan is not entitled to the property shetclaims to hold as heir and under the deed above mentioned, but that it is trust property for Ralph W. Maverick, and will so remain during his life.
    
      Peter A. Sheil, for the plaintiffs.
    
      Arthur H. Wadick, for the defendant.
   O’Brien, J.:

The questions for our determination are: Was there a valid limitation upon the, estate of Sylvester in favor of Ralph W. Maverick,, and is it still effective ?

As stated by the plaintiffs’ counsel, probably no branch of the law of estates created by wills presents such an apparent conflict of decision as the question whether a valid remainder can be limited on an estate upon the non-exercise by the first taker of a power of disposition.” The artificial rules of construction based in part on the use or absence of the words heirs, issue,” etc., which were in force prior to the Revised Statutes, no longer obtain; and the controlling factor now is the inteiition of the testator and the testamentary scheme, which is to be. gathered from a reading of the entire will. An illustration of the view taken before the Revised Statutes is to be found in the case of Paterson v. Ellis (11 Wend. 259). So also in the early case of Jackson v. Robins (15 Johns. 169) it was held, as summarized in the head note, that “ where A devises all his estate to B * * * but. in base of B’s death without disposing of it by will or otherwise, then to his daughter, B takes under the devise the entire fee and the subsequent limitation to the daughter is consequently void.” The more modern view can be found discussed in the case of Norris v. Beyea (13 N. Y. 273), relied upon by the plaintiffs. It was therein said: “It is an obvious dictate of reason as well as a settled principle of law that all the parts of an instrument are to be taken together in ascertaining its" meaning, and that no part of it should be rejected as inoperative if the whole can reasonably stand together.” And it was accordingly held, construing the will there involved, that where, after a devise or bequest in language denoting an absolute gift of the whole estate in fee, there is in a subsequent part of the same will a limitation over in the event of the first devisee dying under age and wdthout issue, the gifts are not repugnant to each other, but the latter is a valid executory gift. In that case, nevertheless, the principle was recognized that if the first legatee is authorized to spend the principal for his own purposes, a subsequent limitation to take effect upon a contingency, would be void on the ground of repugnancy ; and it will be noticed that the devise over which was held good, was one applying in case of the death of the first taker during infancy.

We have been referred to no case, wherein the legatee had the power of disposition by will, that he did not take ah absolute estate. This power of disposition by will has been regarded as a controlling element and a crucial test upon the question as to whether the estate given is absolute or. defeasible. If the legatee can only dispose of the estate during life, then the limitation over has been sustained because within the protection of the statute. But a similar rule has. not been applied where there has also been conferred upon the legatee a right to dispose of the corpus by will.

The question received a thorough discussion in the case of Van Horne v. Campbell (100 N. Y. 287) wherein the authorities are collated, and the extent to which the rule of common law has been changed by the Revised Statutes is considered. There the testator devised real estate to his wife for life, with remainder to his són D. “his heirs and assigns forever,” and another parcel to his son H.. and the will provided subsequently that if either of the sons died “ seized of the estate hereinbefore bequeathed or any part thereof, without lawful -issue, that then the estate of him so dying seized * shall descend to the other.” It -was held that the limitation over was void, and D. obtained an absolute title, he having gone into possession after the death of the widow. - Since this case was decided, it was held in Greyston v. Clark (41 Hun, 125) where the will gave to a wife real and personal property “ absolutely * * * and with full power ana authority to sell or mortgage as she thinks proper,” and provided that such of the property as remained when she died should -be divided among others, that “ the estate given by the testator to his wife was of such á nature that she could dispose of it all during her lifetime for any purpose she should judge -to be for her Use or benefit,” but could not dispose of it by will, and so much as remained was to be divided as directed by the testator. It has not been held, however, that where the legatee was given the power of disposition by will, the limitation over was valid; and, as stated, the authorities are the other way. In the present instance, the legatee could not only enter into full possession of the property with power to sell or use it in any manner, but in addition, as expressly provided, might will it as he saw fit. Under such circumstances, an absolute and complete estate was given and, therefore, the subsequent provision giving the property to a trustee for the benefit of Ralph W, Maverick was void as repugnant.

Upon principle, therefore, as well as upon authority, we think it was not intended that the Revised Statutes should in any way change the rule that where the entire estate is given with the power absolutely to dispose of-it by deed and by will, there is nothing left in the testator upon which a limitation over can take effect. This is but another way of saying that after one has given his entire estate away once, he cannot give it away again. What the testator here intended was to give the property absolutely to Sylvester should he return from foreign parts and enter into possession, which, as we have seen, he did. It was only in the event of his not returning and entering into possession, that provision was made for a trust in Ralph’s favor which was. to continue during his infancy, or at most during life.

It will be noticed that unless this construction prevails the result will be that after the trust in favor of Ralph ceases, there is no one who is thereafter to take the property; and thus, in a will where it is clear that the testatrix- intended to make a disposition of her entire property, she would, after the trust estate ceased, have left the property undisposed of. In doubtful cases where the testator shows an intention to dispose of all his estate, that construction should be adopted which favors vesting, rather than one which leads to the conclusion that-the testator died without having made a full disposition of it.

It .is unnecessary to consider the other contentions of the defendant that this trust is void for the reason that the corpus and not the rents and profits are directed to be. applied, and constitutes only a power in trust, ceasing when the cestui que t/rust reaches majority, and that the trust in any event is terminated, as its purpose was to provide for the maintenance and education of Maverick, and to fit him for some useful occupation, which purpose must be deemed to have been accomplished when he reaches majority. On the ground of repugnancy, therefore, we think that the clause relating to Maverick was void and the defendant is entitled to judgment.

Judgment accordingly ordered for defendant, with costs.

Van Brunt, P. J., McLaughlin and Hatch, JJ., concurred; Laughlin, J., dissented.

Laughlin, J.

(dissenting):

Ralph W. Maverick was a minor, not only at the time the will was made, but also at the time of the death of the testatrix and Sylvester W. Pike. The latter having died while in possession of the property without having disposed of it by his deed or will, the testatrix has declared, in clear, pointed language, absolutely free from ambiguity, her intention in those circumstances that Maverick should have some interest in the premises. Where, as here, the intention of the testatrix is not left in doubt, it is the duty of the court to so construe the will as to carry such intention into effect, if that may be done consistently with the provisions of our statutes. (Wager v. Wager, 96 N. Y. 167; Smith v. Bell, 6 Pet. 68.)

The trust attempted to be created in favor of Sylvester, being merely to hold the premises for him, was a naked trust, not authorized by the statute, and, therefore, it is void ; but in such case the interest intended for the beneficiary vests in him at once. (Real Prop. Law [Laws of 1896, chap. 547], §§ 51, 72, 73, 76, 79, 210; Helck v.Reinheimer, 105 N. Y. 475 ; Root v. Stuyvesant, 18 Wend. 278; Downing v. Marshall, 23 N. Y. 366-379; Fowler Real Prop. Law, 241, 242.) Appropriate words to give Sylvester an estate in fee are not found in the will, and it is by no means clear that such was the intent of the testatrix; but, as she has not expressly limited his interest to a life estate, the legal effect of her will may be to vest in him the fee. (Real Prop. Law, §§ 129, 133 ; Deegan v. Von Glahn, 75 Hun, 39; affd., sub. nom. Deegan v. Wade, 144 N. Y. 573; 4 Kent’s Com. 319, 536; Lalor Real Prop. 201, 202, 208, 209, 210.) The will, however, must not be construed as giving Sylvester the fee if that would nullify the provision limiting a future estate thereon, in certain contingencies, in favor of Ralph. If necessary to render the whole will operative, and especially the last clause over, which is to Ralph, it should be construed as giving a life estate only to Sylvester, with power to sell or devise, and with the remainder oyer for the benefit of Ralph. (Real Prop. Law, § 129; Smith v. Bell, supra Crozier v. Bray, 120 N. Y. 366-373.) If it was the intention of the testatrix to give Sylvester only a life estate, which as has been seen may be the effect of the will, with a power of disposition, the fee vested in him by statute absolutely as to creditors, purchasers and encumbrancers, and the contingent limitation over to Ralph was expressly authorized by statute, and as to Sylvester the fee is a defeasible estate and not an estate of inheritance. (Real Prop. Law, §§ 129, 132.) But if he took a fee the rule of construction is that it will not be curtailed or limited by a subsequent clause of the will unless that clearly appears to have been the intention of the testatrix, which is manifest in the case at bar. (Banzer v. Banzer, 156 N. Y. 429; Clay v. Wood, 153 id. 134.)

Here, the testatrix clearly intended that' the entire estate, both legal and equitable, should be divested in the event of Sylvester’s death without having conveyed or devised it; and such a limitation of a fee upon a fee though void for repugnancy at common law (Van Horne v. Campbell, 100 N. Y. 287) is.now'authorized and the common-law rule no longer obtains. (Real Prop: Law, §§ 40, 206 ; Fowler Real Prop. Law, 42, 170, 193, 359, 360; Greyston v. Clark, 41 Hun, 125; Leggett v. Firth, 53 id. 152; affd., 132 N. Y. 7; Terry v. Wiggins, 47 id. 512; Matter of Gardner, 140 id. 126, 127.)

It was, I think, intended by the enactment of the Revised Statutes to abolish all artificial or technical restraints of the common law with reference to the transfer of real property that were not expressly retained on the ground of public policy or expediency ; and that it was intended to alter the common-law rule that a fee or lesser estate could not be limited upon a fee appears from many provisions expressly providing for such limitation. (Real Prop. Law, §§ 22, 40, 42, 43, 48, 129, 130, 206; Fowler Real Prop. Law, 162; Lalor Real Prop. 62, 64, 65, 93, 94, 104.)

If there were greater adherence to the plain language of the statutes and less attention given to the common law our law with reference to the disposition of real property would be better understood, and there Would be less danger that the real intention of the testator would be defeated by an erroneous judicial construction of his will. It is unnecessary to decide whether Sylvester took a life estate or a fee for in either event the trusted took the remainder in trust for Ralph during his minority or for life. The trust for Ralph, though not expressed in the language of the statute, was unquestionably a valid trust to hold the premises and apply the rents and profits, at least, to his maintenance, education, and to fit him for some useful occupation at least during his minority. (Real Prop. Law, § 76, subd. 3; Kiah v. Grenier, 56 N. Y. 220, 225; Vernon v. Vernon, 53 id. 351; Bellinger v. Shafer, 2 Sandf. Ch. 293, 295; Donovan v. Van De Mark, 78 N. Y. 244; Hathaway v. Hathaway, 37 Hun, 265, 269.) In my opinion, it is clear that upon the death of Sylvester no interest descended to his heirs, but the entire legal estate vested immediately in the trustee for the purposes of the trust. (Real Prop. Law, § 80 ; Fisher v. Fields, 10 Johns. 495.)

This brings us to the consideration of other difficult questions. The defendant has fortified herself by conveyances from the heirs of the testatrix; and she claims that even if there were a valid trust for Ralph that it continued only during his minority, and that upon Ms attaining his majority the legal title reverted to the heirs of the testatrix who then became vested with both the legal and equitable title. If the trust was for Ralph’s life, and for that construction some support is found in the authorities (see Kiah v. Grenier, supra ; Crandall v. Fowler, 18 Wkly. Dig. 139), of course.it has not terminated, and. plaintiffs would be entitled to possession, and it would be unnecessary, to decide whether at Ralph’s death the title would vest in his heirs or devisees or would revert to the heirs of the testatrix. It is significant that the testatrix speaks of Ralph as a minor, and .1 am inclined to think that the trust was only for his minority, (Sterricker v. Dickinson, 9 Barb. 516; affd., see Id. 523, note.) The testatrix declares that in the event of the contingency the trustee shall hold the identical property “ in trust for the benefit ” of Ralph. The term “ heirs ” or other words of inheritance not being necessary to create'an estate in fee (Real Prop; Law, § 205), if there be no further provision in the will indicating an intent that Ralph shall only take an estate for his minority or during life he takes - the fee; so, also, in such case if - the further provisions be insufficient to create a valid trust to receive and apply the rents and profits — but doubtless they are — the fee vested in him at once. (Real Prop. Law, §§ 72, 76, subd. 3, 210 ; Crain v. Wright, 36 Hun, 74 ; S. C., 114 N. Y. 307; Richards v. Jones, 1 Ch., Div. [1898] 438.) The question then arises do the words of the devise, “ to be applied by said Trustee for the maintenance of said Ralph and for his education, and to fit him for some useful occupation,” following the words “for the benefit of my relative, RalphW. Maverick, now a minor,” cut down the fee that would otherwise be given by the words “ for the benefit of % ” If the devise had been directly to Ralph to have and to hold “ for his benefit and support,” the fee would vest in him, and if followed by the clause to be “ applied for his maintenance, education, and to fit him for some useful occupation,” such words would be insufficient to cut down the fee to an estate during minority or for life. The use of the word “ benefit” was entirely unnecessary unless it was intended thereby to devise the fee, and it is, therefore, significant. I think the proper .construction of this part of the will is the same as if the words “ the rents and profits ” preceded the words “ to be applied,” etc., for it was manifestly the intention that rents and profits only should be applied by the trustee for the purposes specified.

The same party may be both the beneficiary of a trust and the remainderman. (Chapl. Express Trusts & Powers, § 359.) The law favors that construction of a will which will prevent partial intestacy rather than one which will permit it. (Vernon v. Vernon, supra ; Provoost v. Calyer, 62 N. Y. 545, 550-552; Schult v. Moll, 132 id. 122, 127.)

There is no residuary devise. The testatrix manifestly intended that the entire estate should pass by her will, and I think Ralph took a vested remainder in fee and in possession at the termination of the trust. (Real Prop. Law, § 210; Stevenson v. Lesley, 70 N. Y. 512, 517; Embury v. Sheldon, 68 id. 227, 234, 235 ; Whitney v. Whitney, 63 Hun, 59-63, 78-81; 43 N. Y. St. Repr. 841-843, 855-857; Olmstead v. Olmstead, 4 N. Y. 56.)

My conclusion is, therefore, that the trust is terminated and that the fee is now vested absolutely in Ralph, in whose favor judgment should be awarded accordingly.

Judgment ordered for defendant, with costs.  