
    In the Matter of the Judicial Settlement of the Account of Franklin A. Williams, Ex’r. Franklin A. Williams, Ex’r, and individually, App’lt, v. The Second Congregational Society of the Town of Coventry, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed May 13, 1892.)
    
    Will—Perpetuities—Legacy.
    By testator’s will he gave to “The Second Congregational Society of Coventry the sum of seven hundred dollars; the same to be loaned on bond and mortgage, and so kept by my executors; and the interests arising therefrom to be appropriated yearly to pay for the preaching of the gospel in said Congregational Church.” Held, that the gift was not void under the statute against perpetuities; that the gift was directly to the church, followed by a limitation upon its management which may be disregarded, and that the church was entitled to receive the legacy.
    Appeal from the decree of the surrogate’s court of Chenango county, entered on the 27th July, 1891, upon the petition of the appellant for a final judicial settlement of his accounts.
    
      W. G. Cady, for app’lt; W F. Jenlcs, for resp’t.
   Merwin, J.

controversy in this case is over the validity of the thirteenth clause of the will of Timothy D. Porter. That ■clause is as follows: :

Thirteenth. “ I give and bequeath unto the Second Congregational Society of Coventry the sum of $700, the same to be loaned on bond and mortgage and so kept by my executors; and the interests arising therefrom to be appropriated yearly to pay for the preaching of the gospel in said Congregational Church.”

It was held, by the surrogate that the legacy was valid and that the church was entitled to receive the amount thereof.

It is not claimed by the appellant that the church has no power to take the legacy, or that the specification of the object or purpose to which the interest is to be applied defeats the legacy, but that the gift is, in substance, to the executors in trust in perpetuity, and is, therefore, invalid under the law' as laid down in Adams v. Perry, 43 N. Y., 487.

The claim of the respondent is that the legacy is given absolutely to the church and vests in it, and that the attempt to create in the executors a trust in its management is not operative and does not defeat the legacy.

In Adams v. Perry it was held that a bequest to trustees of personal estate to invest and reinvest and pay over the income to an incorporated academy forever, is void under the statute of perpetuities. In that case the property was given expressly to the trustees and provision was made for the perpetuation of the. trusteeship. So that it was held that under the provisions of the will the title vested in the trustees. It was said by Judge Grover, in delivering the opinion of the court (page 497), that he would have found no difficulty in sustaining the bequest of the residue had it been made directly to the corporation, or if capable of being so construed as to vest the title of the corpus in the corporation, subject to the trusts and conditions specified. In Cottman v. Grace, 112 N. Y., 299 , 20 St. Rep., 783, the gift was directly to the trustees, and so it was in Read v. Williams, 125 N. Y., 560; 35 St. Rep., 909.

These cases are unlike the present. Here there is a gift directly to the' church, followed, however, by a limitation upon its management, and the question is whether such limitation can be disregarded. There are authorities which sustain such a conclusion.

In Dorland v. Dorland, 2 Barb., 63, the testator gave to his wife five hundred dollars, and directed his executors to put it at interest and apply the interest for her support. It was held that the widow was entitled to receive the legacy, it being said by Justice Strong that “ the gift of that sum is absolute. The direction to the executors to put the money at interest for her. support does not in any manner revoke or qualify the donation.. It merely relates to the investment, and, as it is inconsistent yzith the absolute title before given to her, it is null and void.”

In Pray v. Hegeman, 92 N. Y., 508, it was held that an invalid direction for the accumulation of a portion of 'the income of the share of a life estate man was to be regarded as stricken from the will, thus leaving the life estate man the owner of the entire income. The same principle was applied in Barbour v. De Forest 95 N. Y., 13. An ineffectual attempt to create a trust estate in regard to a bequest does not affect the validity of the bequest if in other respects it is valid. Everitt v. Everitt, 29 N. Y., 39, 82. In Greene v. Greene, 125 N. Y., 506; 36 St. Rep., 30, there was an inhibition against a partition or division for six years, and a restriction upon the power of alienation. It was held that the invalidity of these limitations did not affect the devise otherwise valid, it being said that invalid limitations upon the free ownership of property devised may be disregarded. Courts lean in favor of the preservation of all such valid parts of a will as can be separated from those that are invalid without defeating the general intent of the testator. Harrison v. Harrison, 36 N. Y., 543, 548, and cases cited.

It should be said here, as in the Greene case above referred to, that the attempted limitations upon the free ownership of - the legacy may be disregarded. It follows that the surrogate did not. err in holding that the church was entitled to receive the legacy.

The appellant further claims that the surrogate exceeded his jurisdiction in that in one of his conclusions of law he held that the legacy was a lien upon the farm devised to said Franklin A. Williams by a subsequent clause of the will. The evidence and . proceedings before the surrogate upon the trial are not returned. The findings of fact and law which appear in the record before us, are, according to the recitals therein, based upon the testimony and stipulations of the parties.” The petition, presented by the appellant, asked that the legacy be declared void and that the petitioner be discharged and held not liable to pay the same. The court held that he was liable. Whether in arriving at this. conclusion it was important or proper for the court to pass upon the effect of any other provision of the will, we cannot well determine without having before us the proceedings before the court, at the trial. What questions were in fact presented to the surrogate for decision does not appear. It does not appear what personal estate, if any, was in the hands of the executor. If it was-important for the appellant to raise the question that the surrogate had decided too much, he should have made a case containing the proceedings. The appellant does not claim that the legacy was not in fact a lien.

It follows that the decree of the surrogate’s court should be affirmed, with costs.

Decree of surrogate’s court of Chenango county affirmed, with costs.

Hardin, P. J., and Martin, J., concur.  