
    John Dickman Brown, Individually and as Administrator, etc., of Caroline L. Brown, Deceased, Appellant, v. Charles J. Richter, as Executor, etc., of James W. Lawrence, Deceased, and Others, Respondents.
    
      Idfe beneficiary — not excluded from taking as next of kin — intention of the testator as indicated by void provisions of Ms will—extent of the title acquired by a trustee.
    
    A cestui .que trust, entitled to the income of a fund for life, is not for that reason to be excluded from the number of the next of kin entitled to the ultimate ownership of the trust fund, where there is no valid disposition over of the fund after the expiration of the life interest.
    Where no intention can be inferred from anything contained in the will that the testator intended that, in case of partial intestacy, the cestui que trust for life should take nothing but a life interest in the fund, the representative of such cestui que trust who is also one of the next of kin of the testator will not be precluded from sharing, under the Statute of Distributions, in the estate in remainder for the reason that the testator has, by certain void provisions of the will, attempted to make a different disposition thereof.
    
      
      Semble, that another rule applies where the question is, whether a reversion shall pass under the will itself to a residuary devisee.
    Where a trust is created for the life of a beneficiary, with directions to the trustee on the termination of the life estate to make a disposition of the fund which is subsequently adjudged to be illegal, the trustee takes, not a fee, but only the estate necessary for the execution of the trust, and the ownership of the residue of the estate remains in the creator of the trust or reverts to his heirs or next of kin.
    Appeal by the plaintiff, John Dickman Brown, individually and as administrator, etc., of Caroline L., Brown, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 5th day of August, 1897, upon the decision of the court rendered after a trial at the Hew York Special Term dismissing the complaint upon the merits.
    
      F. M. ILardenbrook, for .the appellant. •
    
      L. A. Lockwood, R. L. Redfiéld and- L. V. Lockwood, for the respondents.
   Patterson, J.:

The plaintiff in this action was the.husband of Caroline L. Brown, a daughter of James W. Lawrence. Mrs. Brown died intestate on' the 8th of February, 1897, and without children. Sarah C. Lawrence, a sister, and James B. Lawrence,.a brother, survived her. James W. Lawrence died on the 21st of April, 1891, leaving a widow and three children, above named. His widow died on the 29th of August, 1891. He left a last will and testament, by the terms of which he gave to his executors all the remainder of his estate in trust to sell and dispose of the same, and invest the proceeds and keep the same invested ; to pay over the income to his wife during her life, “ with leave to my executors to pay her from time to time any part or the whole of the said principal, if in their judgment the same shall be necessary for her comfortable maintenance and. support.” The executors were then directed, upon the decease of the. ■ testator’s wife, to divide so much of -the estate as might then remain into as many equal portions as there were children surviving the testator, and to pay over the income of one of such portions to his daughter Caroline (Mrs. Brown) during her life, “and upon her decease * * * the principal thereof * * * shall be added to and disposed of as a part of the said other portions.” The executors were directed then to pay over the income of another portion to the testator’s daughter Sarah during her life, and upon her decease to pay the principal to her issue, if any ; if none, then the same to he added to and disposed of as a part of the other portions. They were then directed to make a similar disposition with reference to the third portion, to be held for the son, with leave, however, to the executors to pay to him, from time to time, the whole or any part of such portion, as they might deem best for the interest of such son Interpretation of the will of James W. Lawrence was made by the Supreme Court and the -Court of Appeals in a suit brought hy Mrs. Brown and her brother and sister (Brown v. Richter, 76 Hun, 469; 144 N. Y. 706), and it •was held that the absolute ownership of personal property was unlawfully suspended by those provisions of the will which carried over in certain contingencies one share in augmentation of the others; but it was also held that the void provisions might be cut off and the valid ones be made effectual. As a result the will was, in substance, recast, so that it was made to read and to stand and be executed as if originally written: “ That they (executors) pay the income of one of such portions to my daughter Caroline during her natural life and uj>on her separate receipt; ” that they pay the income of one of such portions to the daughter Sarah during her natural life, and upon her decease that they pay the principal thereof to her issue, if any; that they pay the income of one of such portions to the son James Brewster during his natural life, and upon his decease that they pay the principal thereof to his issue, if any, etc. The entire estate of the testator consisted of personal property. It is now claimed by the plaintiff (who'was appointed administrator of his wife’s estate) that James W. Lawrence died intestate as to the remainder or reversion in the one-third in which a life interest was given to Caroline; that by reason of such intestacy the ultimate ownership of the third was devolved, by the statute, upon the next of kin in being at the death of James W. Lawrence; that such next of kin were his three children, and that he (the plaintiff) has succeeded to the interest of his wife Caroline in one-ninth of the estate, and that he is entitled to that amount from the executors. That contention of the plaintiff was rejected by' the court below, and it was there held that Mrs. Brown took no interest as next of kin in the one-third of the personal property of her father, in which she was given, under .the will, •the life interest, but that that one-third passed to her brother and .sister, the defendants herein. The general ground upon which that •decision of the court below was based is that'it is apparent that Caroline Brown was excluded from participation, and that the ne,xt of Mn, who were entitled to the third referred to, were to be ascertained at the death of Caroline Brown and not at the death of the testator, James W. Lawrence.

We cannot agree with the court below in that conclusion. It ■cannot be sustained on the theory that one entitled to the income of* & fund must be excluded in ascertaining the next of kin entitled to the ultimate ownership of a share in or of the whole of that fund, ’ where there is no disposition over of the fund itself after the expiration of the life interest. There are many cases in which, for the want, or on failure of gifts over, the reversionary interest which would pass to the next of kin under the statute passes to the representatives of the recipient of the income or the person entitled for life.' Where there is no disposition o.ver, the statute fixes the ■ownership. We had occasion to consider that subject fully in the case of Simonson v. Waller (9 App. Div. 503). That was a decision relating to a foreign will, but the same reasoning and the same rule of law applies here. Where no intention can be gathered to the contrary from the will, even where the life tenant is the only person ¡answering the description of next of kin, the representative of that 3ife tenant may take the whole fund on the expiration of the particular estate and so take in the right of the person .who was that life tenant, as next of kin. It is said, however, that it conclusively .•appears by the terms of the will that it was the intention of the testator that his daughter. Caroline should not, under any circumiStances, take any other interest in his estate than that for life, given .by the 4th clause of the will. It is undoubtedly the law that, in ■.some cases, in order to ascertain the intent of the testator, void provisions of a will may be considered, and to that extent be given effect to in connection with the valid ones. Such' was Van Kleeck v. Dutch Church of New York (20 Wend. 457) and Van Cortlandt v. Kip (1 Hill, 591), but those were cases in which all the provisions of the will were searched in order to ascertain whether it was the intention that the reversion should pass wider the will itself to a residuarydevisee. There the residuary devisee was excluded because, by the terms of the void provisions, it was obvious that the testator intended that such residuary devisee should not take; but in this case no intention can be inferred from anything contained in the will that the testator contemplated or intended that, in case of partial intestacy, his daughter Caroline should take nothing but a life interest in the third. Or, to put it differently, no intention can be inferred that would defeat the operation of the statute, which devolves the ownership upon the next of kin, in default of the testator having declared or intimated where that ownership should ultimately rest.

But it is further claimed •— and the decision of the learned judge below was based principally upon that position — that the interposition of a trust title and interest carried with it the whole ownership to the trustees, and that that title was not divested until the death of the cestui que trust. We cannot assent to that proposition. The trustees did not take the whole ownership of the fund. If, for the-.purposes of the trust, and in order to effectuate the valid purposes of that trust, a less estate than the whole were required to vest in the trustees, the mere fact of the existence of the trust would not have prevented the expectant interest in the reversion of a part of the fund inhering in Caroline Brown as one of the next of kin. It has come to be the . well-settled rule in this State that trusts of personal property are to be assimilated as near as may be to the provisions of law respecting trusts under the Statute of Uses. In Cook v. Lowry (95 N. Y. 111) it is said .that the decision in that case was supported “by the rule of construction, declared in several cases that, in interpreting the provisions of the Revised Statutes, the rules governing estates or interests in land should, as far as practicable, be applied to like estates or interests in personal property. "Where there is no reason for a distinction in the nature of the property there is certainly great propriety in assimilating the rules governing dispositions of real and personal estate. Acting upon this principle, the statutory rule rendering the interest of a beneficiary in a trust for the receipt of the rents and profits of land inalienable, has by analogy been applied to trusts of personal property. (Graff v. Bonnett, 31 N. Y. 9.) So, also, the rule subjecting the surplus rents and profits of land held in trust to the claims of creditors. (Williams v. Thorn, 70 id. 270.) In like manner the provisions in the article regulating powers over real property have by analogy been applied to powers relating to personal property. (Cutting v. Cutting, 86 id. 523; Hutton v, Benkard, 92 id. 295.) ” So,, with reference to the title of trustees of personal property, thé provisions of the Statute of Uses will be made aj>plicable. By that statute it is provided in the 60th section that “ every express trust, valid as such in its creation, except as herein otherwise provided, shall vest the whole estate in the trustees in law and in equity, subject only to the execution of the trust.” The exceptions referred to in that section are contained in the two following. ; and by the 62d section (1 R. S. 729) it is provided that, where an express trust is created, every estate and interest not embraced in the trust, and not otherwise disposed of, shall remain in or revert to tbe person creating the trust or his heirs as a legal estate. There are expectant estates or interests in personal property as well as in real estate,- and the Statute of Accin mulations, by its 2d section (1 R. S. 773), subjects such expectant estates to the government of the rules prescribed with reference to such estates in land.' It' will thus be seen that the trustees took only that estate which is necessary for the pui'poses of the trust, and other estates or interests remained or reverted as provided in the 62d section. The test in'every case must be.: What estate, is required in order to enable the trustee to carry out the- terms of his trust? -What' estate or interest is embraced in -the trust, in order that it may be fully executed ?. What estate or quantity of interest, therefore, was it necessary for these trustees to have in order to carry out the valid provisions of the will of James-W. Lawrence ? Evidently not the whole ownership of the fund.. The provision made for the benefit' of the widow of the testator was for the income, with a simple right to appropriate so much in excess thereof as might be deemed necessary for her comfortable maintenance and support. That did not vest the whole-ownership of the capital of the fund in the trustees, but only so much of it as they might in'their discretion use for that purpose. They could call upon that capital if it became necessary, and to the extent to which they thus called upon it reduce the amount. That is a mere power to-apply if the necessity arose, and nothing more. It is not like a power of sale of the whole of a fee, and until such power was exercised the resultant ownership of the next of kin remained undisturbed.

We think, therefore, that the decision of the court below was erroneous; that the representative of Caroline Brown was entitled to the one-ninth of the personalty, and that the judgment appealed from should be reversed and that judgment should be directed in favor of the plaintiff, as prayed for in the complaint — the amount, however, being limited to one-ninth and not one-tliird of such personalty, and such amount to be ascertained by an accounting, with costs to the plaintiff as against the defendants James B. Lawrence and Sarah C. Lawrence, with costs to the executors payable out of the estate; the taxable costs of the guardian ad litem to be paid out of the portion of the estate now awarded to the plaintiff.

Van Brunt, P. J., Barrett, Rumsey and O’Brien, JJ., concurred.

Judgment reversed and judgment ordered for plaintiff, as directed in opinion, with costs to the plaintiff as against the defendants James B. Lawrence and Sarah 0. Lawrence, with costs to the executors payable out of the estate, and with taxable costs of the guardian ad, litem to be paid out of the portion of the estate now awarded to the plaintiff.  