
    Emanuel Mansbach and Others, as Executors, etc., of the Last Will and Testament of Jacob New, Deceased, and Others, Appellants, v. Florence New and Others, Respondents.
    
      Will — trust for the life of the testator’s widow,'to continue daring the minorities of his two children — when a valid trust will be enforced, although an invalid trust is attached to it—equitable conversion.
    
    The will of a testator devised all his real estate to his executors upon trust: First. “ To hold one equal one-third part thereof during the life of my said wife Esther New, and to pay to her during her life the net income of said one-third part;” second, “After the death of my said wife to hold the said one-third part for the benefit of my children until my daughter Mabel New shall arrive at the age of twenty-one years, or until the coming of age of my next older surviving child, should my daughter Mabel not live to that age, and to pay the net annual income thereof to my children in equal shares; ” third, “ to hold the remaining equal two-thirds part thereof until my daughter Mabel New shall arrive at the age of twenty-one years, or until the coming of age of my next older surviving child, if my daughter Mabel should not live to that age, for the benefit of all my children ” (naming them), “ and to pay to each of them an equal one-fifth part of the annual net income thereof;”' fourth, “ upon the coming of age of my said daughter Mabel or of my next older surviving child in case of her death, I direct my trustees to sell and dispose of all of my trust estate, at public or private sale, and give good and sufficient deeds for all real estate so sold, and divide the two-thirds of the net proceeds thereof among my said children, share and share alike; ” sixth, “to invest an equal one-third of said net proceeds in bonds and mortgages upon good security, * * * and pay over the net income to my said wife until her death, and then to sell and dispose of the same in same manner as hereinbefore provided, and divide the proceeds thereof among my said children or their issue or survivors, in the same manner as hereinbefore provided for the other two-thirds of my estate.”
    The provisions for the benefit of the testator’s widow were declared to be in lieu of dower.
    
      Held, that the trust created in the 1st and 2d subdivisions was separate and distinct from that created by the 6th subdivision and did not embrace the same subject-matter;
    That the trusts created by the 1st, 2d and 3d subdivisions could not last longer than during the continuance of the lives of the two children, upon whose death or coming of age they were limited, and did not unlawfully suspend the power of alienation;
    That the provisions of the 4th subdivision constituted an equitable conversion of the real estate and essentially changed the character of the trust property;
    That the trust attempted to be created by the 6th clause was void as it postponed the ultimate vesting of one-third of the proceeds of the real estate for a longer period than, two lives in being at the death oí the testator, namely, the lives of the two children upon which the prior trust was limited and the life of the widow;
    That upon the termination of the trusts created by the 1st, 2d and 3d subdivisions, one-third of the proceeds of the testator’s real estate should be distributed among the testator’s widow and next of kin as personal property. Yan Brunt, P. J., and Rumsey, J., dissented.
    Appeal by the plaintiffs, Emanuel Mansbach and others, as executors, etc., of Jacob New, deceased, and others, from so much of a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 27th day of July, 1900, upon the decision of the court rendered after a trial at the New York Special Term, as provides as follows-:
    
      “Tenth. That under subdivisions ‘1st’ and ‘2d’ of paragraph 4 Ninth,’ which must be read in connection with each other, the testator creates a trust .which provides for the suspension of the power' of alienation for a period of one life and two minorities!, a minority being equivalent to a life, and is, therefore, a violation of the statute against perpetuities, and is void.
    “ Eleventh. That as to that portion of the testator’s real estate mentioned in the two subdivisions aforesaid, testator must be deemed to have died intestate.
    .“ So much of paragraph ‘ Thirteenth ’ as does not state that the power of sale created under subdivision ‘4th’ of paragraph ‘Ninth’ of said will is valid during the continuance of the trust created and provided for in subdivision ‘ First ’ and ‘ Second ’ of paragraph 4 Ninth ’ of said will. Also except to the following containéd in said paragraph ‘ Thirteenth: ’ ‘ All said real estate being subject to the right of dower of the widow therein.’
    
      “Fifteenth. That subdivision ‘6th’ of paragraph ‘Ninth’.has reference to the invalid trust created by subdivisions ‘ 1st’ and‘ 2d’ of paragraph ‘Ninth,’ and is, therefore, ineffectual for any purpose, and falls with the trust to which it refers and is invalid and void.
    “■ So much, of paragraph ‘ Sixteenth ’ as does not state ■ that the powers of sale created under paragraphs ‘Tenth’ and ‘ Eleventh’ of the said will are valid during the continuance of the trusts providéd for in subdivisions ‘ First ’ and ‘ Second ’. of paragraph ‘ Ninth ’ of said will. Also except toso much of 'the. judgment contained in paragraph ‘ Sixteenth’ as states: ‘Ail the real estate being subject to the right of dower therein.’
    
      “Eighteenth,. That paragraph ‘ Thirteenth ’ of the said will becomes ineffectual since the provision made for the wife of the testator under subdivision ‘ 1st ’ of paragraph ‘ Ninth ’ of the said ■will is void.”
    
      Sol. M. Stroock, for the plaintiffs, appellants.
    
      David Bandler, for the respondent Freeman.
    
      David B. Calm, guardian ad litem, for the infants, defendants, ¡respondents.
   Ingraham, J.:

This action was brought to construe the will of Jacob New, •deceased. The will was executed on the 10th of June, 1896, and the testator died on the 3d of January, 1898, leaving considerable real estate, all situated in the city and county of New York. The testator left him surviving a widow and several children, two of whom were infants. The question presented in this case is as to the A'-alidity of the devise of the testator’s real estate contained in the 9th clause of the will. The testator therein devised all of his real estate to his executors upon trust. First. “ To hold one equal •one-third part thereof during the life of my said wife Esther New, ■and to pay to her during her life the net income of said one-third part; ” second, After the death of my said wife to hold the said one-third part for the benefit of my children until my daughter Mabel New shall arrive at the age of twenty-one years, or until the •coming of age of my next older surviving child, should my daughter Mabel not live to that age, and to pay the net annual income thereof to my children in equal shares ; ” third, to hold the remaining equal two-thirds part thereof until my daughter Mabel New ¡shall arrive at the age of twenty-one years, or until the coming of age of my next older surviving child, if iny daughter Mabel should not live to that age, for the benefit of all my children ” (naming them), and to pay to each of them an equal one-fifth part of the annual net income thereof ; ” by the 4th subdivision the testator directed that “ upon the coining of age of my said daughter Mabel or of my next older surviving child in case of her death, I direct my trustees to sell and dispose of all of my trust estate, at public or private sale, and give good arid- sufficient deeds for all real estate so sold, and divide the two-thirds of the net proceeds thereof among my said children, share and share alike;” and, by the 6th subdivision, directed his trustees to invest an equal one-third of said net proceeds in bonds and mortgages upon good security, ■* * * and pay over the net income to my said wife until her death, and then to sell and dispose of the same in same manner as : hereinbefore provided, and divide the proceeds thereof among my said children or their issue or survivors, in the same inanner as hereinbefore provided for the other two-thirds of my estate.” It was further provided that the provisions made in the will for the benefit of the testator’s wife were to be in lieu of dower. In making this disposition of his property the testator seems to have intended to make provision for his wife in lieu of her dower in his real estate, and to postpone the distribution of his real property until all of his children should be of age. At the time of the making of the will there were two-children who were infants, and his general intention was that his estate should be held by the trustees until both of those children should arrive at age. To accomplish that result he created a trust which was to continue until, his youngest surviving child should arrive at age. This seems to have been the predominating idea that pervades the whole of this will. Except so far as lie made provision for his wife, all of his estate was to be distributed when his youngest surviving child arrived at age; and to accomplish that purpose he expressly provides that “ upon the coming of age of my said daughter Mabel or of my next older surviving child in case of her death, I direct my trustees to sell and dispose of all of my trust estate* (which of course would include the one-third that was held in trust for his wife as well as the two-thirds held in trust for his children) * * * and divide the two-thirds of the net proceeds thereof among my said children, share and share alike.” The existence of this trust did not depend upon the continuance of the' life of his wife. Upon the happening of the contingency which must take place within the two lives in being at the death of the testator, the trusts created by this clause of the will that we have been considering terminated ; and upon such termination of the trusts there was an imperative direction to sell the property constituting the trust. There was then an equitable conversion of the whole of the real estate and a termination of the two trusts before created. I can see no reason why either of these trusts should be declared void. The trust created by the 1st, 2d and 3d subdivisions could not last longer than during the continuance of the lives of his two infant children upon whose death or coming of age it was limited. The property constituting the trust was then directed to be at once converted into money and the proceeds thereof distributed.

The learned judge before whom this case was tried seems to have considered that because by the 6th subdivision of this .clause of the will a new trust in one-third of the proceeds realized from the sale of the real estate was created which would, taken in connection with the trust created by the 1st and 2d subdivisions, continue for a period beyond two lives in being at the death of the testator, that the whole of the trust created for the benefit of the widow by the 1st and 2d subdivisions of this 9th clause of the will was void ; but it seems to me that the trust created by the 1st and 2d subdivisions and that created by the 6th subdivision were entirely distinct and separate trusts, not embracing the same subject-matter and not necessarily dependent one upon the other. By the 1st and 2d subdivisions of this clause of the will one-third of the testator’s real property was to be held in trust for the purposes therein mentioned. By these provisions the trustees were required to set apart one-third of the real estate, and hold such one-third for the purpose specified; but when that trust ended by a sale of. all the property held in trust by the trustees and the conversion of the whole of the testator’s real estate into money, it was not the proceeds of this one-third of the real estate which had been held for the benefit of the widow that was to be continued to be held in trust- for her benefit. The new trust, which was then to be created, was to be composed of one-third of the proceeds realized from all of the testator’s real estate. It is evident that this sum of money, that was to constitute the new trust created by the 6th subdivision of the 9th clause of the will, might be a different amount from that realized by a sale of the one-third of the estate which had been set apart for the benefit of the widow under the 1st and 2d subdivisions of the clause of the will in question. It might be that the one-third of the real estate held under the 1st and 2d subdivisions of this clause of the will would, upon the final sale of the estate, sell for much more or for much less than one-third of the total amount realized from a sale of all of the testator’s real estate. There was thus no identity between the two trusts. One was to be constituted by one-third of the specific real estate of which the testator died seized, to be set apart at the death of the testator, and the,other was to be constituted by one-third of the net proceeds realized, from the sale of all the testator’s real estate at the termination of the trust; and even though the estate was fairly divided at the time of the testator’s death, with the fluctuations of the value of real estate, during the period that this trust created by the 1st, 2d and 3d clauses of. the will was to continue, the amount to be held in trust under the. 6th clause of the will might and probably would be a different sum than that realized by the sale of the one-third of the testator’s estate which had been held by the trustees under the 1st and 2d subdivisions. There is nothing to identify these two trusts except the beneficiaries. They are absolutely distinct, to consist of different property, quite possibly different in amount, and the trust created by the-6th clause was to be created, not at the time of the testator’s death out of any property which he then- had, but from the proceeds of all of the testator’s real estate when sold at the termination of the first trusts created. That the provisions of the 4th subdivision of this clause was an equitable conversion of the real estate, and thus essentially changed the character of the trust property, seems to be settled. In Stagg v. Jackson (1 N. Y. 206) it was- held that where the testator’s direction to sell the land was absolute, although the executor had discretion in respect to the time of the sale, the principle of equitable conversion applied, and the real estate was converted by the devise and direction to change into personalty. The same principle was applied in Everitt v. Everitt (29 N. Y. 70) ; Hood v. Hood (85 id. 569) ; Greenland v. Waddell (116 id. 238), and Lent v. Howard (89 id. 176). In Phelps v. Pond (23 N. Y. 69) it was expressly held that, where the testator intended that the whole real estate should be sold and converted into money prior to the general distribution, the doctrine of equitable conversion applied, and this although, as in that case, a final division of the estate was postponed during the two lives. And in Savage v. Burnham (17 N. Y. 561) it was held that where a valid trust was created during the life of a widow, with a direction upon her death to sell the property and convert it into personalty, “ when that period arrives, the estate will be deemed to undergo the change directed by the will, whether then actually sold or not.”

Upon the arrival of age, therefore, of the surviving infant daughter of the testator, the property became by operation of law, under the doctrine of equitable conversion, personalty in the hands of the trustees to be distributed as directed by the testator.

As to two-thirds of the proceeds realized from the sale of this property, the trustees were required to distribute it immediately among the surviving children of the testator, the issue of any one dying to take the share of the parentbut, as to one-third of the proceeds of such estate, a new trust was created by the 6th subdivision of this clause of the will, by which the trustees were directed to invest such one-third of the net proceeds and to pay the net income to the testator’s wife until her death, and then to divide the same among the testator’s children. It seems to me that this new trust thus attempted to be created was void, as it postponed the ultimate vesting of the proceeds of this real estate for a period longer than two lives in being at the death of the testator. Whether we treat this as real estate or personal property, any provision whereby the absolute ownership was suspended for a longer period than during the continuance and until the termination of two lives in being at the death of the testator was void. (R. S. pt. 2, chap. 1, tit. 2, art. 1 [1 R. S. 723], § 15 ; Id. chap. 4, tit. 4 [1 R. S. 773], § 1 ; Real Prop. Law [Laws of 1896, chap. 547], § 32; Pers. Prop. Law [Laws of 1897, chap. 417], § 2.) It seems to me, however, that the validity of the trust established by the 1st, 2d and 3d subdivisions of the 9th clause of the will is not affected by the invalidity of the subsequent provision creating a new trust for the benefit of the wife by subdivision 6. It is true that the testator intended to make provision for his wife after the termination of the trust by the crea-t tion of this new trust of one-third of the proceeds of his real estate ; but as that provision is void as postponing the absolute ownership of this property for a longer period than that allowed by law, to that intention no effect can be given. That full effect cannot be fully given to the intention of tiie testator to provide for his widow, does not justify us declaring void all the provisions made for her benefit. She can refuse to accept the .provisions of the will in lieu of dower, or she can accept the provisions, in which case she would be entitled to the income of one-third of the real estate until the youngest surviving daughter arrives at age, and then the proceeds of the real estate being equitably converted into personalty, and held by the trustees as personal property, the testator died intestate as to the one-third that was to constitute the trust, and the said one-third of the proceeds would then be distributed among the widow and the next of kin of the testator, as in case of intestacy, of which, therefore, the widow would be entitled to one-third thereof absolutely. If the whole of this 9th clause of the will, or the trust created by the 1st and 2d subdivisions be declared void, because of the attempt of the testator', by this 6th subdivision of the 9th clause,, to create a trust prohibited by the statute, the widow would then be only entitled to her dower in the real estate, with no provision made for her by the will. So far, therefore, as the- provision for the widow is concerned, this construction that we have indicated would seem to be more advantageous to her than is the judgment appealed from and more in conformity with the intention of the testator. That this- provision in the 6th subdivision of the 9th clause of the will can be declared void without affecting the valid trust contained in the 1st, 2d and 3d subdivisions of the clause in question, seems to me to be settled by authority. Thus, in Savage v. Burnham (17 N. Y. 561), the question was presented whether ultimate limitations ever could be dropped and the primary disposition of the estate be allowed to stand, and it was held that this could be done if the intention of the testator will be thereby effectuated rather than defeated; and that case was followed in Harrison v. Harrison (36 N. Y. 544), where it is said: The principle is now well settled that the courts. lean in favor of the preservation of all sucb valid parts of a will as can be separated from those that are invalid without defeating the general intent of the testator.” In Underwood v. Curtis (127 N. Y. 532) it was held that the trust terms sought to be created were in hostility to the • statute; but “ where several trusts are created, and those which render the entire disposition illegal can be separated and the legal upheld without doing injustice or defeating that which the testator might be presumed to wish, that which is illegal, or which added to others renders the whole illegal, may be cut off and the intention of the testator given effect so far as the statute will permit.” It would seem that effect can be given to the intention of the testator to a much greater extent by the construction before indicated than by holding that the trust created by the 1st and 2d subdivisions of the 9th clause of the will void, or by holding the whole trust to be void. In either case the widow of the testator would obtain just what she has now, that is, a right to her dower if she elects to take it, and in addition to that she has by this construction the right to elect to take this provision made for her during the minority of these two children of the testator, with a right to the one-third of the one-third of the proceeds of the real estate as to which the testator died intestate. There is nothing in the case of Benedict v. Webb (98 N. Y. 460) that in any way conflicts with this conclusion. It was there held that a limitation upon the minority of two persons is a limitation upon their lives, and that' the absolute ownership of the property could not be suspended to a period beyond such minorities, but in determining that case the court says : “We should feel disposed to sustain the trusts in favor of the other children, except for the reason that to uphold those, while setting aside the trust in favor of Anna Augusta, would seriously interfere with the intention of the testator, that all the children and their issue should share equally in his estate, and would produce great injustice. The result of sustaining the trusts in favor of the other children would be that each would take one-fourth share of the estate, and also as heirs and distributees an equal share with Anna Augusta in the share intended for her. No case, we think, can be found which would justify upholding a part of a will, when by so doing it would produce such manifest injustice.” No such injustice will result in this case from this construction of the will, but on the contrary effect would be given to the expressed intention that the estate should not be sold until the coming of age of the youngest of his infant daughters and a substantial provision for the widow secured.

It follows that the judgment appealed from must be modified by declaring valid the trusts created by the 1st, 2d and 3d subdivisions of the clause of the will in question, and as void the trust created by the 6th subdivision of the said clause, and upon the termination of the trusts that one-third of the proceeds of the testator’s real estate: be declared personalty and be distributed among the widow and next of kin of the deceased as personal property, the costs of the plaintiffs and the guardian ad litem to be paid out of the estate.

McLaughlin and Hatch, J"J., concurred; Van Brunt, P, J.,, and Bumsey,. J., dissented.

Van Brunt, P. J. (dissenting):

For the reasons stated in the opinion of Mr. Justice Freedman in the court below I think the judgment should be affirmed.

Bumsey, J., concurred.

The following is the opinion of the court below:

Freedman, J.:

This is an action brought by the plaintiffs, as executors, and by two of the plaintiffs, in their individual capacity, for the cofistruction'of the last will and testament of Jacob New, deceased. After providing for the payment of certain legacies and the disposition of certain .personal property in no way in contravention of law, the testator then devises his real property in a manner which one of the defendants claims renders the entire will invalid and void so far as it relates to the disposal of such real estate. By the provisions of the will the testator has created two separate and independent trusts. The 1st and 2d subdivisions of paragraph 9 of the will must be read in connection with each other, and by those subdivisions he provides that one-third of his real estate shall be held in trust, the net. income thereof paid to his wife during her lifetime, and that, after her death, the said one-third shall be held for. the benefit of all his children until his daughter, Mabel New, shall arrive at the age of twenty-one years, or in case of her death prior to arriving at that age, then to be held in trust until the next older surviving child shall become of age. By paragraph 13.of said will it is further provided that “ the provisions made in this will for the benefit of my wife, Esther New, are to be accepted by her in lieu and bar of all dower or thirds in my estate.”. At the time of the death of the testator he left him surviving his widow, Esther New, and five children, two of whom were under the age of twenty-one years, viz., Mabel and Florence New. The trust created by the two subdivisions aforesaid provides for the suspension of the power of alienation for a period of one life and two minorities,, a minority being equivalent to a life (Benedict v. Webb, 98 N. Y. 460), and is, therefore, a violation of the statute against perpetuities and is void. As to the portion of the testator’s real estate mentioned in those subdivisions he must be deemed to have died intestate. The will must be considered as though no mention of the wife of the testator had been made therein, and all of the real property belonging to the testator at the time of his death will be burdened with the dower interest of the widow, for she cannot be deprived of the interest given her by statute in all the real estate of which her husband died seized by the creation for her benefit of an illegal and void trust and asserting that she must take and accept such void provision in lieu of dower. The second trust created by subdivision 3 of paragraph 9 is valid and terminates upon the arrival of Mabel New at the age of twenty-one years, or, in case of her death prior thereto, then upon the arrival of Florence at that age. During the continuance of this trust the power of sale given under subdivision 4 of paragraph 9 and in paragraphs 10 and 11 are valid, the real estate being subject to the right of dower of the widow therein. Subdivision 6 of paragraph 9 has reference to the invalid trust created by subdivisions 1 and 2 of paragraph 9, and is, therefore, ineffectual for any purpose and falls with the trust to which it refers. The legacies provided for in the will are independent and valid bequests. The word “ surviving ” in subdivisions '2, 3 and 4 of paragraph 9 refers to the death of the testator. The foregoing construction violates no law, does equal justice to all the parties and carries out the intent of the testator so far as the same can legally be done. Decision and judgment to be settled on notice.

Judgment modified as directed in opinion, with costs to the plaintiffs and the guardian ad litem to be paid out of the estate.  