
    The Farmers’ Loan and Trust Company, as Substituted Trustee Under the Will of George Jones, Deceased, Plaintiff, v. Frances Coster Kip et al., Defendants.
    (Supreme Court, New York Special Term,
    January, 1907.)
    Suspension of power of alienation — Conditions determining validity of suspension — Computation of period within which alienation may he suspended.
    Where a testator gave real property to his executor in trust, during the life of the longest liver of his two daughters, to pay the net income to persons designated in his will and directed him then to sell the property and gave one-fifth of the proceeds to the appointees of his daughter Frances hy deed or by will and, in default of such appointment, to her heirs at law; and where the daughter Frances, thereafter, by her will, gave such share of the proceeds to a trust company, during the life of her grandniece, upon certain trusts and, upon the death of her grandniece, gave the same to her issue absolutely; held that the daughter’s will which attempted further to suspend the power of alienation, it having already been suspended by her father’s will for the full period permitted by the statute, was invalid as an exercise of her power of appointment and the fund should he distributed under the provisions of her father’s will in default of her appointment.
    
      Action for an accounting.
    Man & Man (Frederick H. Man, of counsel), for plaintiff.
    Frank L. Hall (Ernest P. Hoes, of counsel), for defendant Frances Coster Kip.
    W. T. Emmet, for New York Life Insurance and Trust Company.
    Strong & Cadwalader, for defendant D. B. Fearing.
    Lyman Ward, for Lewis Quentin Jones.
    J. Du Pratt White, as guardian of Margaret Smith.
    Thomas J. Sanson, for Wm. Alex. Smith, individually and as executor.
    Stewart & Shearer, for United States Trust Company, of New York.
    Fritz W. Hoeninghaus, for infant William Burgh Kip.
   Newburger, J.

This action is brought by plaintiff to pass its accounts, and for directions to whom and in what proportion the balance found in its hands shall be distrib-. uted. George Jones died in December, 1886, leaving as his only heirs three daughters, Kebecca Mason Jones, Frances Jones and Margaret Smith; a grandson, Daniel Butler Fearing; a grandson, Lewis Quentin J ones, and a great-granddaughter, Frances Coster Kip. George Jones died seized and possessed of certain, real estate in Hew York city, known as Ho. JO Broadway, and left a last will and testament In the fourth article of the will be provides as follows: “Fourth. I give and devise to my executor, hereinafter named, the premises extending from Broadway to Hew street, known as number JO Broadway, in the City, of Hew York, during the life of the longest liver of my daughters, Frances Jones and Kebecca Mason J ones, in trust, however, for the following purposes: To lease the said premises, or any part thereof, for such term or terms, as to my said exeoutor may seem advisable, to pay the taxes, charges, insurance, repairs and other expenses necessary to keep the property in good condition, and to pay over the net income of the said property semi-annually to the same persons, and in the same proportions, and subject to the same conditions as are herein stated in the fifth, sixth, seventh, eighth, ninth and tenth clauses of this will in relation to the general remainder of my estate. At the death of the longest liver of my said daughters, Frances and Rebecca, I empower my executor to sell the said premises, number 70 Broadway, and I give and devise the proceeds thereof as follows: One-fifth thereof to the appointees of my daughter Frances Jones, by deed or by will, and in default of such appointment, to her heirs at law. One-fifth to the appointees of my daughter Rebecca Mason Jones, by deed or by will, and in default of such appointment, to her heirs at law. One-fifth thereof to my daughter Margaret Smith. One-fifth thereof to my grandson Daniel Butler Fearing, and if he should have died before the death of the longest liver of my said daughters, Frances and Rebecca, without lawful issue him surviving, then I give the said one-fifth to the appointees, or in default thereof, to the heirs at law of my said daughters, Frances and Rebecca, and to my said daughter Margaret Smith, and ' to the lawful issue living at the time of his death, of any child of mine then deceased, share and share alike, per stirpes. One-tenth thereof to my grandson Lewis Quentin Jones, and if he should die before the said longest liver of my two said daughters, Frances and Rebecca, without lawful issue him surviving, then I give and devise the said one-tenth to the appointees, or in default thereof, to the heirs at law of my said daughters, Frances and Rebecca, and to my said daughter Margaret Smith, and to the lawful issue living at the time of his death, of any child of mine then deceased, share and share alike, per stirpes. One-tenth thereof to my great-granddaughter, Frances Coster Jones, and should my said great-grand daughter have died before the death of the longest liver of my two said daughters, Frances and Rebecca, without lawful issue her surviving, I give the said one-tenth to the appointees, or in default thereof, to the heirs. at law of my said daughters, Frances and Rebecca, and to my said daughter Margaret Smith, and to the lawful issue living ■ at the time of my said great-granddaughter’s death of any child of mine then deceased, share and share alike, per stirpes.” Rebecca Mason Jones died June 11, 1890; Frances died April 15, 1906. In 1897, William Alexander Smith, who was then the trustee, in proceedings instituted in this court, obtained an order authorizing the sale of No. 70 Broadway and directing the proceeds to be held as if the same were real estate and the said trust property had not been converted into money. In 1905, William Alexander Smith was discharged as trustee and the plaintiff was appointed in his place, and certain property was thereupon turned over to the plaintiff and'this property with the income tihereon is now to be accounted for. As the trust created under the fourth article of the will of George Jones came to an end upon the death of Frances Jones, the only question submitted is the distribution of the one-fifth which Frances Jones had power to appoint. Frances Jones by the third clause of her will makes the following disposition: " Third. I give, devise and bequeath to the New York Life Insurance and Trust Company, a corporation having its principal place of business in the City, County and State of New York, and to its successors, all the rest, residue and remainder of my estate, real and personal, of which I shall die seized and possessed, or subject to my disposal by will, to have and to hold the same during the life of Frances Coster Kip, daughter of my nephew Alfred Renshaw Jones, now deceased, in trust and with power to the said corporation and its successors to collect and receive the rents, income and profits thereof, and to apply the said rents, income and profits to the use of the said Frances Coster Kip during her life. Upon the decease of the said Frances Coster Kip, leaving issue her surviving, I give, devise and bequeath the said rest, residue and remainder of my estate, real and personal, to her issue absolutely forever.” She thus attempts to exercise this power by giving the property in trust for the benefit of Frances Coster Kip during her life, and-on her death leaving it to her issue surviving, and in the event that no issue survive her, then to Daniel Butler Fearing and Lewis Quentin Jones. It is apparent that this attempted disposition of the interest in JO Broadway by Frances Jones is absolutely void. The property was tied up by George Jones’ will during the lives of his daughters, Rebecca and Frances, and if the power of appointment exercised by Frances Jones were enforced it would result in suspending the power of alienation and the absolute ownership for three lives, for by the attempted exercise by Frances Jones in her will of the power of appointment, it was further tied up during the life of Frances Coster Kip with remainder to persons who could not be ascertained until the death of Frances Coster Kip. Section 158 of the Real Property Law provides: “ The period during which the absolute right' of alienation may be suspended by an instrument in execution of a power must be computed not from the date of such instrument, but from the creation of the power.” It is further provided by section 32 of the Real Property Law: “ The absolute power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed. Every future estate shall be void in its creation which shall suspend the absolute power of alienation by any limitation or condition whatever for a longer period than during the continuance of not more than two lives in being at the creation of the estate.” I am, therefore, of the opinion that the attempted exercise by Frances Jones of her power of appointment under the will of George Jones is invalid, and the fund should be distributed as provided by the will of George Jones, viz., one-third to Margaret Smith, which interest has since passed to William Alexander Smith; one-third to Daniel Butler Fearing, one-sixth to Lewis Quentin Jones, and one-sixth to Frances Coster Kip. Having held that the attempted appointment by Frances Jones is void, it necessarily follows that the fund cannot be charged with the payment of any of her debts or pecuniary legacies. Submit findings and interlocutory judgment in accordance with the views expressed and providing for the taking of the plaintiff’s accounts before a referee.  