
    Matter of Proving the Last Will and Testament of Max Kalter, Deceased.
    (Surrogate’s Court, New York County,
    July, 1914.)
    Wills — bequest of entire personal estate — direction to executor to deposit in savings bank — when bequest is contingent and not vested — what creates an unlawful perpetuity.
    Where a bequest of testator’s entire personal estate to several nephews and nieces, his only heirs-at-law, in equal shares, payable to them as they respectively became of age, was followed by a direction that the executor deposit in a savings bank all moneys of testator, and a bequest of the interest thereon for a period of ten years was given to a third person payable to him every five years, and after the ten years to be paid to testator’s heirs equally as before provided, the bequest is contingent and not vested and the contingency enduring for ten years creates an unlawful perpetuity.
    Proceedings upon the probate of a will.
    
      Louis J. Jaco ves (Robert H. Ernest, of counsel), for executrix.
    Leopold Freiman, for Sara Kalter.
   Fowler, S.

On the probate construction of the will was reserved, and pursuant to section- 2624, Code of Civil Procedure, now comes on for hearing. The second clause of the- inartificial will of the late Mr. Kalter gives and bequeaths to his eight nieces and nephews named in the will all his little personal estate, “ to be distributed among them, share and share alike, payable unto them upon their attaining the respective -age of 21 years.” This bequest appears on its face to involve no illegality, but taken in connection with subsequent clauses of the will a point of no little difficulty arises.

- The demarcation between absolute gifts of personalty and gifts on conditions precedent is often very narrow. A bequest to one at twenty-one and a bequest payable at twenty-one do not much differ in expression, yet one is vested and the other contingent. If the gift and direction as to payment are, however, distinct the direction as to the- time of payment does not postpone the vesting. Bartholomew’s Trust, 1 M. & G. 354; Lister v. Bradley, 1 Hare, 10; Everitt v. Everitt, 29 N. Y. 75; Loder v. Hatfield, 71 id. 92, 99; Warner v. Durant, 76 id. 133, 136: Standing alone-there would be no question, I think, that the- bequests contained in the second clause of the will are vested. But the will proceeds as follows: “Third. I hereby direct my executor * * * to deposit all my moneys that I may die possessed of in the savings bank to bear interest. Fourth. To my friend Hyman Wolf Aufner I give.and bequeath the interest that may accrue on my such possessions deposited in a bank for a period of ten years, payable to him every five years. After a period of ten years the interest to go to be payable to my heirs equally as hereinbefore provided.”

Clauses “ third and fourth,” just quoted, undoubtedly modify the gifts given by the second clause of the will now before me. The question is, Do they so modify it as to create an unlawful perpetuity! An unlawful perpetuity in this state under our present law of property can, as said by that most admirable judge, Rapallo, arise only in two ways: ‘6 There are but two modes in which the absolute power of alienation can be suspended, viz., by an express trust or power in trust * * * or by a contingent limitation. ’ ’ Radley v. Kuhn, 97 N. Y. 34. As there is no pretense of a trust'in this will the only question on it is, Is there a contingent limitation!

The main reason why the' bequests to the nephews and nieces may be regarded as contingent is that the nephews and nieces are not to get the interest on the capital until majority. It is claimed that this fáct takes the bequests out of the category of vested and puts them for ten years into the category of contingent bequests. There is a great difference between a gift to a contingent class and a gift to a class upon a contingency. A gift to those who attain twenty-one or to such nephews and nieces as attain twenty-one is a gift to a contingent class. ' But a gift of interest meanwhile may have the effect of vesting the bequest. Theobald Wills, 561. I do not wish to be taken as affirming that the right of a legatee to the interest before he attain majority is the sole criterion of vesting; the immediate severance of a legacy from the estate may operate to make the legacy vested, even though the legatee is not to get the interest before majority. But as this point is not in this case it need not be discussed. Pearson v. Dolman, L. R. (3 Eq.) 315.

Undoubtedly the disposition of the interest is a very important criterion in the determination whether testamentary gifts of personal estate are to be held vested or contingent. Hanson v. Graham, 6 Ves. Jr. 239, 249; per Jessel, J., Matter of Parker, 16 Ch. Div. 44; per Leach, V. C., in Vawdry v. Geddes, 1 R. & Hy., 208. A. gift of the interest, in the absence of anything else, for example, prima facie vests the principle (Hawkins Wills [2d ed.], 272), while a gift of the interest to another than the donee of the capital undoubtedly tends to raise an inference that the gift of the capital was intended to be contingent on the arrival of the donee at the age of twenty-one years. Vise v. Stoney, 1 D. & W. 337; Warner v. Durant, 76 N. Y. 136; Smith v. Edwards, 88 id. 92, 106; Steinway v. Steinway, 163 id. 183; Matter of Dippel, 71 App. Div. 598. It seems to me that as the nephews and nieces of Mr. Kalter are not by his will to get the interest on their legacies for a stated term the bequests are to be taken as contingent and not vested.

The contingency under the will endures for ten years. Now, a contingent gift of personalty for a stated term of ten years raises in this state an unlawful perpetuity. The bequests to the nephews and nieces are therefore void, which destroys the scheme of the will, as the other provision is too inseparable to be saved. I am the less reluctant to come to this conclusion because the nephews and nieces in question will take all under the Statute of Distribution.

Decreed accordingly.  