
    In the Matter of the Judicial Settlement of the Intermediate Account of Edward Haight, as Trustee under the Last Will and Testament of Augustus Holly Haight, Deceased. Benjamin Haight, Appellant; Edward Haight, as Trustee, and Others, Respondents.
    
      Will — a condition tendi ng to encourage divorce is void —-an adjudication by a Surrogate’s Court not necessary to the decision is not binding — it operates only on the subject-matter of the decree —amendment of a previous decree —commissions forfeited if not taken. ■
    
    A testator by his will, executed two days after the marriage of his son, directed the payment to such son of the income of his residuary estate during life, and .further provided, “hut it is my will that so long as .the present wife of my said son shall be living and he shall be lawfulljr bound to her as a husband, the income to he paid to my said son shall not exceed the sum of two thousand dollars in any one year, and that in case' of the death of said wife, or in case of his ceasing to be bound to her as a lawful husband, then the whole of said income is to be paid over to my said son during his natural life.” field, that the condition attached to the gift, the evident purpose of which was-[_ to induce, the son to secpre a legal divorce or separation from his wife, was / void, as being in contravention of good morals and public policy; and that, whether such condition be regarded as precedent or subsequent, the residuary estate consisting wholly of personalty, the son was entitled to . the entire ( annual income thereof; ■
    That an adjudication establishing the validity of the condition contained in the deci-ee. made upon a prior accounting of the executors under such will before the surrogate, to which the son, who was then of full age, was a party, and from which he'took-no appeal, was not binding upon him on a.subsequent intermediate accounting by the surviving trustee, where it appeared that, at the time of the previous accounting, the annual income of the residuary.estate was less than §¿,000, and that it was, Therefore, unnecessary and improper for the surrogate to direct the distribution of income in excess of §8,000 per annum.Semble, that such prior decree could in any event be binding only as to the specific fund then in hand to he distributed under it. J
    
    
      Qumre, whether the erroneous provision of the decree, made upon the previous accounting, could he amended by the successor of the surrogate.
    A trustee, who pays to his cestuis •qui inistent the entire income of the trust fund, without deducting his commissions, cannot retain them subsequently — certainly not from the principal of the fund.
    Appeal by Benjamin Haight, a legatee under the last will and testament of Augustus Holly Haight, deceased, from an order of the Surrogate’s Court of the county of Orange, entered in said Surrogate’s Court on the 23d day of January, 1899, denying his motion to amend a decree of said Surrogate’s Court, entered in said court •on the 10th day of November, 1880, and to require Edward Haight, as trustee, etc., of Augustus Holly Haight, deceased, to pay . over to him all the income of the residuary estate held in trust for said Ben jamin Haight, and also from a decree bearing date the 26th day of June, 1899, and entered in said Surrogate’s Court, overruling his objections to the intermediate accounting of Edward Haight, as trustee, and settling the accounts of said trustee.
    
      William R. Wilder, for the appellant.
    
      G. D. B. Hasbrouck, for Edward Haight, trustee, respondent.
    
      Henry Bacon, for Joseph Merritt, special guardian, respondent.
   Hirschberg, J.:

Augustus Holly Haight died on the ,10th day of April, 1879, leaving a will and codicil which were admitted to probate in Orange county on the eighth day of May following. He named Louis. Haight, Edward Haight and James G. Roe executors and trustees, and letters testamentary were duly issued to them. They there-' after tiled an account in the Surrogate’s Court, and a decree was rendered on such accounting on the 10th day of November, 1880. Louis Haight died in 1894 and James G. Roe in 1896, and Edward Haight has since acted as sole trustee. He has presented an intermediate account of his proceedings, and the same has been settled . by the surrogate of Orange county in a decree dated January 23, 1899. The testator left no widow and but one child, Benjamin Haight, and these appeals are taken by" Benjamin from the last decree, and from an order denying his motion to amend and modify the first decree in so far as it limited his right to the income of the estate to the sum of $2,000 per annum, and to require the payment to him of all of said income.

Among" other bequests the testator gives to his executors the sum of $8,000 in trust for his sister, Sarah J. Smith, during life, and the • sum of $8,000 in trust for Maria Crassous during life, the principal in each instance to revert to the residue of the estate on the death of the beneficiary. The will contains this provision for t-he testa.tor’s son: “All the rest, residue and remainder of - my estate, both, real and personal, I give, devise and bequeath to my executors, hereinafter named, in trust however, and to and for the following uses and purposes, namely: to invest the same and to keep the same invested, and to pay the income therefrom to my son, Benjamin Haight, for and during the term of his natural life; but it is my will that so long as the present wife of my said son shall be living and he shall be lawfully bound to her as a husband, the income to-be paid to my said son shall not exceed the sum of two thousand dollars in any one year; and that in case of the death of said wife, or in case of his ceasing to be bound to her as a lawful husband, then the whole of said income is to be paid over to my said son during his natural life.”

No disposition is made by the will of the annual income which shall be in excess of $2,060 during the life of Benjamin Haight’s wife and the continuance of their marriage relations; but on the death of the son leaving a child or children surviving, the executors are directed to apply the income to the maintenance, support and education of such child or children during minority, and to pay over the principal equally, to each child on the attainment of its majority; and should the son die without leaving a child surviving and attaining the age of twenty-one years, then the estate is to be paid in equal shares to the .children of the testator’s brother and sister.

Benjamin Haight married on the 21st day of August, 1877, and the will was made two days afterward. At the time of the first settlement and for several years afterward the income of the residue did not amount to $2,000 a year; but .during a few years past it has-been slightly in excess of that' sum, and the excess -is expected to-increase in consequence of the termination of the trusts for the benefit of the testator’s sister and of Maria Crassous. The former' died July 2, 1891, and the latter January 16, 1899, having each received the income of the respective trusts in full, without any deduction for commissions. By the decree of November 10, 1880, the executors and trustees-were directed to pay the income arising from the residue of the estate, less commissions, to Benjamin Haight t'o the amount of $2,000 per year, in the words of the decree “ as long as the present wife of the said Benjamin Haight shall live, or as long as the said Benjamin Haight shall be lawfully bound to her as a husband ; and in case of the death- of the said wife, or in case said Benjamin Haight shall cease to be bound to her as a husband, then said executors are hereby ordered and directed to pay over to said Benjamin Haight the whole of the interest and income arising from said rest and residue for and during the term of his natural life.” Benjamin Haight was a party to the proceedings on the first accounting, was then of full age, and no appeal was ever taken frorii the decree.

The appellant insists that the provision of his father’s will which makes his enjoyment of the whole of the income dependent on the termination of his marriage relations is void as in contravention of good morals and public policy, and that he may now raise the question notwithstanding the decree of November 10,1880. I have concluded that he is correct on both points.

As to the first point, the condition must be held void if its manifest object was to induce Benjamin Haight to take such steps as might be necessary in- order that he should cease to be lawfully bound to his wife as a husband; in other words, to obtain, or provoke and so occasion, a legal divorce or separation, either in this State or in some other jurisdiction. If any other and innocent construction can be placed upon the condition, it is of course to be adopted. But the will was made directly after the marriage of-' testator’s son, and the condition must be regarded as made in hos-. tility to that union, and in the hope of destroying it in so far as that" object could be accomplished by offering money by way of a premium or reward. It is true that the condition is not in so many words that the son shall procure or suffer a divorce in order to entitle him to the entire income, but the precise effect of such an express condition is produced by a provision whicn gives him the entire income when such a divorce is procured or suffered. If the former offends public morals and contravenes public policy, it is difficult to see why the latter does not also. “ It is a general principle, well settled,” said Mr. Justice Ingraham in Wright v. Mayer (47 App. Div. 604, 606), “ that conditions annexed to a gift, the tendency of which is to induce the husband and wife to live separate, or to loe divorced, are, upon grounds of public policy and public morals, void.” In Wilkinson v. Wilkinson (L. R. [12 Eq.] 604) the testatrix gave- the residue of her property to her niece, with a direction that all interest should pass under the will as upon the death of the niece, should' she not cease to reside in Skipton within eighteen month's of testatrix’s death. The husband of the niece'resided at Skipton, and the court considered the provision to be a manifest attempt to induce the legatee to leave her husband, the vice-chancellor saying (p. 608): The condition is a vicious one, and that being só, I .have'no difficulty in declaring that it is void.” In Brown v. Peck (1 Eden Ch. 140) the testator provided that if his niece lived with her husband she should receive two pounds per month from-the estate, but if she lived from him and with her mother the executors should allow her •five pounds per month. The legacy at five pounds per month was held to be good, divested of the condition, the latter being void as contra bonos mores. In Tennant v. Braie (Toth. 76) the' same disposition was made of a bequest to a daughter, conditioned “ if she will be divorced from her. husband.” In Conrad v. Long (33 Mich. 78) a condition annexed to a devise was held void which was to .take effect when the devisee “ should conclude not to live with her present husband.” In Whiton v. Harmon (54 Hun, 552) a like provision was held.to be void, the' devise being to a son “for and during the term of his.natural life, or while he shall live separately from his present wife.” (See, also, Potter v. McAlpine, 3 Dem. 108, cited in Whiton v. Harmon, supra, 555.) In O'Brien v. Barkley (78 Hun, 609; S. C., fully reported in 28 N. Y. Supp. 1049) the authorities on the subject are collated in a very elaborate and able opinion by Mr. Justice Kellogg. In that case a trust created' for testator’s daughter for life “ provided, however, and on the express, condition that she do not, at any time after my decease, associate, cohabit .or live ” with her husband, was declared to be wholly void, as having no other object than to effectuate testator’s design to separate the husband and wife, and the daughter, therefore, took the life estate discharged of the void condition.

In the light of these decisions and the many eases of 'similar' import cited in the opinions, and in view of the mischief apprehended, I can but conclude that there is no difference in spirit and principle between a gift made expressly dependent upon the procurement, of a divorce,: and one which is made payable' only in the event of a divorce. The oneinvites the divorce directly and in terms, while the other incites it by the offer of a premium. The end desired by the donor is the same, viz., to induce the separation or divorce, and the means employed must be regarded as objectionable whatever form or language may be employed, so long as it is apparent that the sole object of the donor is to encourage that result, and the means employed are calculated to promote it.

I have found no .cases to the contrary of the principle stated, but in Born v. Horstmann (80 Cal. 452) and in Thayer v. Spear (58 Vt. 327) provisions similar to the one under consideration were held valid, where made for the benefit of a wife to meet the deprivation of support incident to widowhood, or to the legal termination of her marital relations. In each case increased financial provision was made by will for a daughter in the event of her becoming a widow or otherwise becoming lawfully separated from her husband. The courts found the intention to be in each case only to provide for the daughter in case she were deprived of her husband’s support and made dependent upon her own resources, whether by his death or as the result of a lawful divorce or separation. The manifest object of the provision was not to induce or invite a divorce or separation, but to provide for the widow or the divorced wife, as the case might be, in the event of the happening of éither calamity. In the California case the court said (p. 459): Not only may there be a good and sufficient reason * * * for providing ■ that the legatee shall not have the bulk of the property until she is deprived of the support of a husband, but there may be the best of reasons for placing the same in such condition that she cannot be improperly induced by a worthless or profligate husband to squander it, while she continues to be his wife, and, it may be, under his influence and control. We think such a condition in a will is not only valid, but that, under certain circumstances, it may be just and commendable.” In ^he Vermont case the court said (p. 329): “ The first object is to ascertain, if possible, what the intention of the testatrix was ; and we find no .difficulty in reaching the conclusion that it was to have .her estate dispose.) of just as it has been by the Probate Court. It was a wise and prudent provision to make for her daughter. While she should remain a wife, her husband would be under obligation to support her, and hence the income, only, was absolutely left her during the continuance of that -relation; but when, she should cease to be a wife, and so become dependent upon her own resources, it was just and wise to provide that she should have the entire estate.” Neither the reasoning nor the legal attitude of the parties concerned toward each other fenders these cases controlling or influential in I this instance. The increased provision- is made in the case at bar ¿to take effect at a time when the pecuniary obligations of the beneficiary are lessened, and the duty of support which the husband owes the wife has no reciprocal existence. The cases cited are analogous to Cooper v. Remsen (3 Johns. Ch. 382), where'a legacy was upheld which was designed to provide for the testator’s daughter during the continuance of a separation from her husband actually existing at the time of the execution of the will.

If the condition is void, it follows that Benjamin Haight is entitled to the entire income. This is so whether the condition be regarded as precedent or subsequent. The whole estate appears to be invested in personal securities. A subsequent void condition could not, of course, destroy an estate already vested. Assuming, however, that the condition is precedent in its character, and would, therefore, work a forfeiture of the gift in excess of $2,000 annually, at the common law, yet in equity and under the ■ civil law, though the condition is void the gift is good! “With respect to legacies out.of personal estate, the civil law, which in this respect has been adopted by courts of equity, differs in some respects from the common law in its treatment of conditions precedent; the rule of the civil law being that where a condition precedent is' originally impossible * * * or is illegal as in volving malum prohibitum, the bequest is absolute, just as if the condition bad been subsequent.” (2 Jarm. Wills [6th Am. ed.], 15. See, also, 2 Williams Exrs. [7th Am. ed.] 1261.)' “ When, however, the illegality of the condition does not concern any thing malum i?i se, but is merely against a rule or the policy of law, the condition only is void, an4 the bequest single and good.” (1 Roper Leg. 757.)

As to the second point, I do not regard the decree of 1880 as constituting a binding adjudication against the appellant. On the question now before the court there was not and could not have been any adjudication at all. The proceeding was an accounting by the executors, and the duty of the surrogate was confined • to a judicial determination and 'settlement of the accounts, and the decreeing of distribution. Incidentally of course he could construe the will in so far as might be necessary in order to direct distribution. (Matter of Perkins, 75 Hun, 129; affd. on opinion below, 145 N. Y. 599.) But as the income at the time of the first accounting was less than $2,000 per annum, there was no question before the surrogate as to the legality of the condition now under consideration. Such question could not arise until the annual income should exceed $2,000, and while the surrogate on an accounting would then have jurisdiction to determine the legality of the condition in order to direct the distribution of the fund then in hand, and a decree made by him would be binding, until reversed, upon all the parties before the court, yet even in that case it is doubtful whether his determination would be conclusive upon a subsequent accounting. (Matter of Hoyt, 160 N. Y. 607.) The decree controls the disposition only of the specific futid distributed under it, and even the principles under which the distribution was directed, and the construction then given to the will would appear to be binding only as to the amounts involved at the time. But however that may be, it is unquestionable that there was no occasion for the surrogate in 1880 to direct the distribution of income in excess of $2,000 per annum; which income did not then exist and might never exist. , As a result nothing contained in the decree then made is binding upon the surrogate as to the question of the distribution of the surplus income now presented for the first time. (Matter of McCahill, 29 Misc. Rep. 450; Johnson v. Lawrence, 95 N. Y. 354, 156 ; Matter of Walker, 136 id. 20, 29; Bowditch v. Ayrault, 138 id. 223; Washbon v. Cope, 144 id. 287.) The power of the present surrogate to amend the decree of his predecessor in this particular is, however, doubtful, and as the relief which the appellant seeks may be obtained in the proceedings for an accounting, the appeal from the order may be dismissed, without costs, excepting to the special guardian.

The remaining questions relate to the commissions and allowances. The trustee has not only paid to Benjamin Haight the income payable to him under the terms of the decree of November 10, 1880, without deducting commissions, but has paid all the income arising from the investments made for the benefit of Sarah ,J. Smith and Maria Crassous respectively, to the. beneficiaries respectively, without deducting, commissions. By making these payments in that manner the right to the commissions has.been waived, and .the commissions cannot now be collected or retained, and certainly, not from the principal funds of the estate. (Hancox v. Meeker, 95 N. Y. 528 ; Matter of Harper, 27 Misc. Rep. 471; Spencer v. Spencer, 38 App. Div. 403.) The commissions must be computed on the theory that the trustee is -not entitled to any in tlie two trusts, nor to any as against the appellant excepting during the years that surplus income payable to him under .this decision has been retained, and in that case, only to the extent that such surplus income in each year will pay the same.

As to the allowances other than to the special guardian the provisions of sections 2561 and 2562 of the Code of Civil Procedure must control. The surrogate should fix the costs and disbursements of the trustee in accordance with the requirements of these sections. (See Matter of Welling, post, p. 355.)

The management of the estate has been admirable and beneficial. The trustee has followed the adjudication' in .the Surrogate’s Court, and has lost commissions by reason of a technical rule and a liberality by which the appellant has benefited. There is no injustice, therefore, in directing that the matter of the accounting should be remitted to the surrogate for resettlement in accordance with this opinion, with costs and disbursements of this appeal to all parties payable from the fund.

The apq>eal from the order will be dismissed, with costs and disbursements to the special guardian, and the appeal from the decree remitted to the Surrogate’s Court of Orange county for disposition" in accoidance with this opinion, with costs and disbursements to all parties payable out of the estate.

All concurred.

Appeal from order of Surrogate’s Court of Orange county-dismissed, without costs, excepting to the special guardian, and decree in proceedings for the judicial settlement of the intermediate account reversed, • and proceedings remitted to the Surrogate’s Court of Orange county for disposition in accordance with the opinion of Hirschberg, J., with costs and disbursements of this appeal to all parties payable out- of the estate. ■  