
    Gustavus H. Stoiber, Respondent, v. Louis Stoiber, as Trustee of the Trust Attempted to be Created by the Fourth Clause of the First Codicil to the Last Will and Testament of Felix Stoiber, Deceased, Appellant, Impleaded with Louis Stoiber, Individually, and Others, Respondents.
    
      Trust—power of alienation not suspended where the trustee, with the consent of other parties, may terminate the trust. — the absolute ownership of personal property unlawfully suspended —• a contingent remainder must nest at the expiration of two-lines. '
    A testator by the 7th clause of his will gave all the residue of his estate, both, real and personal, to trustees “ for and during the following period, viz., so-long, as my said wife shall live and until my daughter Clara M. shall have reached the age cf twenty-one years, unless my wife shall be living when my daughter Clara M. shall have reached the age of twenty-five, then Only until ■ my said daughter shall reach the age . of twenty-five,” in trust to receive ithe rents.and profits, and after making certain payments, therefrom to divide ¡the surplus equally among his children or their issue per stirpes. The clause further -provided that at the expiration of the trust period the trustees should ■ sell and convert the trust property and divide the proceeds equally among all the testator’s children or their issue per stirpes, with the exception of the share pf the testator’s daughter Clara M., which was directed to be paid to a trustee Upon certain trusts. It was also provided that the trustees might at any time, with the consent of the testator’s adult children, sell any or all of the trust property, and that in such case the proceeds should he paid to the testator’s children then living or their issue per stirpes, with the exception of the share of his -daughter Clara M.
    By-a codicil to the will the testator revoked the provisions- for the benefit of his ■ .son Edward, contained in- the 7th- clause of the will, and in lieu thereof, gave-the latter’s share to a -trustee in trust to. -pay over -the rents and income to him. during his natural life, and upon-his death without issue him surviving, then, absolutely to such of the testator’s sons as might survive his son'Edward-, and: the trustee of his daughter Clara, the share of such of his said sons as. should ' have died to go to their issue, and upon the death of Edward leaving lawful issue him surviving, the testator gave the trust property to said issue abso- - lutely, subject to a pecuniary charge. ' • '
    
      Held, that the trust created by the will itself did not suspend the power of aliena- ' tian, because the trustees might sell and terminate the trust at any time;
    That in the. case of a trust of this character, its validity was to be determined by the legality of the ultimate dispositions of the proceeds of the sale -or corpus of the trust estate; that while there was no suspension of the power of alienation, the absolute ownership Of the fund or proceeds would, by the provisions of .¡the will, be suspended during two lives in being, and, therefore, the testator by the will alone tied up the property as far as the statute would permit;
    That the codicil added to this suspension of ownership a third life, and was, therefore, void.
    Appeal by the defendant, Louis Stoiber, as trustee of the trust attempted to be created by the fourth clause of- the first codicil to the last will and testament of Felix Stoiber, deceased, from a judgment of the Supreme Court in favor of the plaintiff and certain defendants, entered in the office of the clerk of the county of Kings on the 1st day of December, 1898, upon the decision of the court rendered after a trial at the Kings County Special Term, adjudging “ that the trust attempted to be created by the fourth clause of the first •codicil to the last will and testament of Felix Stoiber, deceased, for the benefit of his son Edward G. Stoiber, is invalid, and (that) the revocation of the devises and bequests to him contained in the seventh ■clause of said will attempted to be made in and by said fourth clause of said codicil is void, and (that) the provisions made for said Edward G. Stoiber in and by the said seventh clause of said will are valid and remain in full force and effect, and (that) the share and interest in the residuary estate of said Felix Stoiber, deceased, which he gave to his said son Edward G. Stoiber, in and by said seventh clause of said will, to wit: One equal undivided fifth part of his residuary estate (except the interest of the said Edward G. Stoiber in the proceeds of the premises known as No. 128 Essex street, in "the city of New York, which had been theretofore sold) passed to his brother, the plaintiff, Gustavus II. Stoiber, subject to the execution of the trust created in said seventh clause by virtue of the deed from said Edward G. Stoiber and wife to said Gustavus IT. Stoiber, •dated October 31. 1891.”
    
      Fernando Solinger, for the appellant.
    
      William G. Choate [Charles H. Woodruff with him on the brief], Asa A. Spear and Robert Goeller for the respondents.
   Cullen, J.:

This action was brought for the construction of the will and 1st codicil thereto of Felix Stoiber, who died in the city of New York ■on November 12, 1889, leaving him surviving his widow and five 'children, all of age except Clara M. Stoiber, an infant. By the 7th. clause of the will the testator gave all the residue of his estate, real and personal, to certain trustees “for and during the following-period, viz., so long as my said wife shall live and until my daughter Clara M. shall have reached the age of twenty-one years, unless my wife shall be living when my .daughter Clara M. shall have reached the age of twenty-five, then only until my said daughter shall reach the age of twenty-five,” in trust, to receive the rents and profits and apply the same, first, to the payment of certain provisions made in favor of his widow; second, to the payment of other bequests made by the testator, and the discharge of any incumbrances on the property ; third, to divide the surplus equally among his children or their issue per stirpes. At the expiration of the trust period, the .trustees were directed to sell and convert, the trust property and divide the proceeds equally among all the testator’s children or their issue per stirpes, except that the share of the daughter Clara M. should go to a trustee upon trusts subsequently prescribed in the will, to which- it is unnecessary to refer, as they have no bearing on this controversy. The will also provided that the trustees might at any time, with the consent of the children who should be of full age, sell any or all of the trust property, in which case the testator gave and bequeathed the net proceeds thereof to his children then living or their issue per stirpes (with the exception of the share of the daughter Clara), thus terminating the trust. By the 1st codicil to-the will, the testator declared that it was his intention that his son Edward G-. should receive only the income and not the principal of any part of his estate, and that, therefore, he revoked and annulled any and all devises and bequests to him contained in the 7th clause of. his will, and in lieu thereof gave his share to a trustee, in trust, to pay over the rents and the'net income to said Edward G\ during his natural life, and upon his death without issue him surviving, then absolutely to such of the testator’s sons as might survive-him (Edward) and the trustee of the trust created for his daughter-Clara, the share of such of his said sons as may -have died to go to their issue; but upon the death of Edward leaving lawful issue him surviving, then he gave the trust property to- said issue absolutely, subject to a small pecuniary charge. It is the validity of this provision of the codicil- that is attacked by the plaintiff. The-learned judge at Special Term held that the trust attempted to be created by the testator in favor of his son Edward and in substitution of the previous devise to him, taken in connection with the provisions of the will, was void as effecting an unlawful suspension of the power of alienation, and that Edward took any interest that might accrue to him under the will unaffected by the terms of the codicil. From that judgment Louis Stoiber, the trustee for Edward,, appointed by the will, has appealed.

If it were not for the discretionary power granted to the trustees to dispose at any time of the trust property and terminate the trust,. • it would be unquestionable that the. trust created by the codicil suspends the power of alienation for three lives. The Ith clause of the will suspends the whole residuary estate for two lives, that of the widow and that of the daughter Clara; for in ease the widow should die before Clara reached the age of twenty-one, then the estate was to be held in trust for the further time until Clara should arrive at that age; while in case Clara should die before the age of twenty-one, the trust would continue during the lifetime of the widow. The codicil continues the share of Edward, already held in trust for two lives under the will, in another trust during a third life, that of Edward himself. "We do not understand that the appellant controverts this proposition. The contention of his learned counsel is that the clause in the will does not suspend the power of alienation for any period whatever, because it is within the power of the' trustees, with the consent of the adult children of the testator, to convey the trust property and terminate the trust at any time. In support of his contention the counsel relies upon the cases of Robert v. Corning (89 N. Y. 225) and Henderson v. Henderson (113 id. 1). In these cases it was held thi%under the statute a power of alienation is suspended onlyíwlaere there are no persons in being by whom an absolute fee in possession can be conveyed, and that “ where the^frustee is empowered to sell the land, without • restriction as to tiiye, ^ the power of alienation is not suspended, although the alienation in fact may be postponed, by the non-action of the trustee, or, in consequence of a discretion reposed in him, by the creator of the trust.” We do not see that the present case can be logically taken out of the rule quoted by the fact that the trustees require the consent • of the adult children of the testator to effect a sale. Those adult children, though not trustees, are certainly persons who, in connection with the trustees, can comply with the terms of the statute and convey an absolute fee in possession. The statute places no limit on the number of persons whose action is requisite to make the conveyance. If a discretion vested in three whose unanimous consent to act is requisite to make a.conveyance, is a sufficient compliance with the statute, the same rule must obtain when the discretion is vested in thirty. It may be that the courts will ultimately limit the doctrine of the Robert and Henderson cases, even in the direction in which we have expressed our doubts whether it cannot be logically done. For the purpose, however, of -disposing of the case before us, we shall assume the doctrine of those cases in its broadest form and extended to its greatest limits; ■and shall concede for the argument that no trust which can be terminated at any time at - the discretion of’ a number of persons, however great, and no matter for how long a period that discretion may be given, can constitute a suspension of the power of alienation under our statute. This concession, however, does not dispose of the question before us.

The provision that the absolute power of alienation cannot be suspended by any limitation or condition whatever .for a longer period than two lives in being at the creation of the estate is by no means the only limitation placed by statute on the power of testators or donors to fetter or tie up estates. The statute prescribes (1 R. S. 773, § 1) that the absolute ownership of personal property shall not be suspended by any limitation or condition whatever for more than two lives in being at the date of the instrument or death of the testator; and as to real property (Id. 724, § 20), that “ a contingent remainder shall not be created on a term of years, unless the nature of the contingency on which it is limited be such that the remainder must vest in interest during the continuance of not more than two lives in being at the creation of such remainder, or upon the termination thereof.” Therefore, while a trust, determinable at anytime in the discretion of the trustee,-may not offend against the statute prohibiting restraints on alienation, the disposition of the trust fund or property at the termination of the trust, must, to be lawful, conform to the other statutory requirements which we have quoted. In other words, the validity (of these testamentary provisions is to be determined by the question of the legality of the ultimate disposition of the corpus of the estate for which the power of sale or distribution is given. (Garvey v. McDevitt, 72 N. Y. 556.) If in tire present case, at the termination of the trust, whether by the occurrence of the contingencies named by the tes-, "tator for that purpose or by the previous exercise of the discretion ■of. the trustees, the trust estate had been given to the testator’s children, so that the interest of each child was vested absolutely in him, •and was not subject to be divested by his death before the termination of the trust or any other contingency whatever, the gift would neither create a suspension of the power of alienation or postpone the vesting of the absolute ownership for any period. But the will -directs that on the termination of the trust the distribution shall be •made among the children then living or their issue per stiipes,” which we construe to mean the issue of those children that may at the time be deceased. Therefore, the interest of- the ultimate . recipients of the trust funds would not vest beyond the possibility of ■defeat until the termination of the trust, and until that time the ^absolute ownership of the personal property is suspended. As the limitation of the trust is for two lives; it follows that in the 7th -clause of the will alone the testator has exhausted all .the power given him by law to suspend the absolute ownership. The codicil attempts to suspend the ownership for another life, and is, therefore, void.

In our view the will effects an equitable conversion of the property at the termination of the trust period (Morse v. Morse, 85 N. Y. 53; Delafield v. Barlow, 107 id. 535), and we have, therefore, discussed the question of the validity of the codicil with reference to the statutes concerning the tenure of personal property. But in in our judgment the result would be the same as to the realty, even if treated as such. The interest of any beneficiary in real estate set apart to him at the termination of the trust would be a contingent remainder, contingent upon his surviving that time. By. the provisions of law cited that remainder must vest in interest at the expiration of two lives in being, and, as already said, the 7th clause of the will exhausted all the latitude given to a testator by law in that -direction.

When the cáse of Henderson v. Henderson was at the General Term of this district (46 Hun, 509) we thought that the will there-presented was bad on account of. its postponement of the absolute; ownership of the property beyond the statutory period. Our decision was reversed by the Court of Appeals; but, as we read the; opinion, we were not overrpled on the proposition that the validity of the will was to be determined by the legality of the ultimate disposition of the corpus of the estate, nor in the view that certain testamentary dispositions were illegal. The result was arrived at by the Court of Appeals, by eliminating as void the illegal directions of the will and sustaining the remainder.

The judgment appealed from should be affirmed, with costs to all! parties, payable out of the estate.

All concurred.

Judgment affirmed, with costs to all parties, to be paid out of the estate.  