
    The People’s Trust Company, as Substituted Trustee under the Last Will and Testament of John Flynn, Deceased, Respondent, v. Mary C. Flynn and Others, Appellants, Impleaded with Annie D. Flynn, Individually and as Administratrix with the Will Annexed of John Flynn, Deceased, and Others, Respondents.
    Second Department,
    June 15, 1906.
    Trust — suspension of power of alienation — effect of refusal of,one of the beneficiaries to accept provisions.
    When a testamentary trust is void for unlawfully suspending the power of alienation, it cannot be made valid by a refusal of one of the beneficiaries to accept the benefit of its provisions.
    Hence, when under such a void trust, a widow is given a behcficial interest in lieu of dower, the trust cannot be made valid by an election by the widow to take dower instead.
    Appeal by the defendants, Mary C. Flynn and others, from so much of a'judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the cleric of the county of Kings on the 3d day of January, 1906, upon the decision of the court, rendered after a trial at the Kings County Special Term, as determines a certain trust created under the will of said John Flynn, deceased, to be void by reason of undue suspension of the power of alienation.
    
      S. P. Cahill, for the appellants Mary C. Flynn and others.
    
      Robert P. Orr, for the appellant John Flynn, Jr.
    
      Forbes J. Hennessy, for the appellants William J. Flynn, Jr., and J. Philip Cahill.
    
      T. Ellett Hodgskin, for the respondent The People’s Trust Company.
    
      Michael F. McGoldrick, for the respondent Annie D. Flynn.
    
      David McClure, for the respondent Charles E. Egan, Jr.
   Miller, j.:

■ We desire tb add nothing to the discussion on the former appeal (106 App. Div. 78) except in reference to the point again forcibly- ■ urged upon,us that the widow; having elected to take dower, the provision for her benefit should be eliminated in determining the question of" the suspension of £he power of falienation. - In support of this proposition ou'r attention is called to an excerpt from the opinion of Judge Miller in Bailey v. Bailey (97 N. Y. 460, 471).. But it will be noted that the provision for the wife in that case was wholly independent "of the trust, and the decision was expressly placed upon the ground that the estate given her was assignable and that, therefore, there was no suspension during her l,ife; as stated by the learned counsel for the respondent trust compan yherein,, the Bailey case was cited in Corse v. Chapman (153 N. Y. 466, 473); bilt only upon the proposition that a, life estate given the widow independent of the- trust was alienable. Research- of counsel supplemented by our own has failed tó disclose a single • case, holding that a void testamentary disposition is made valid by the refusal of one of the beneficiaries to accept the benefit of its provisions; oil the contrary, the Court of Appeals- has- frequently reiterated the rule that “ where, by the terms of an instrument creating an estate, there may be an. unlawful, suspension of the power of alienation or of the- absolute ownership, the limitation is void, although it turn out by subsequent" events that no actual suspension beyond the • prescribed .period Would have taken place.” (Herzog v. Title Guarantee & Trust Co., 177 N. Y. 86, and cases cited on page .99.)

We think this case presents no exception to the rule, arid for this ^reason, in addition'to those stated in our former opinion, affirm the-judgment now appealed from, with costs to all parties to the a-ppeal, payable, out of the fund. ^ ,

Hirschberg, P, J., Jenks, Hooker and Rich, JJ., concurred.-

judgment affirmed, with costs to' all parties to the appeal, payable out of the fund. ' ~  