
    Charles T. Duncklee, as Executor, Etc., of John G. Butler, Deceased, Plaintiff, v. Francella Butler et al., Defendants.
    (Supreme Court, New York Special Term,
    December, 1898.)
    1. Trusts — Suspension of power of alienation — Subdivision upon the death of a beneficiary without issue—Bight of minor leaving issue.
    A will created trust estates for life for the four children of the testator, and directed that the share of a child dying without issue should be subdivided among the surviving children by way of addition to their trust portion, but it made no disposition of the remainder in case the second taker should also die without issue.
    Held, that the contention that the power of alienation might be suspended during three lives was not tenable.
    That only one subdivision was intended, that upon the death of the second taker without issue the trust addition would pass under the Statute of Distribution or Descents to the next of kin of the testator and that upon the decease of any child without issue any trust addition would pass in the same manner.
    The same clause also provided: “ Should any of my said children die before arriving at the age of 21 years, said residue shall be held in trust, as aforesaid, for the benefit of the survivors of them, and administered as above provided, only the number of parts into which said residue shall be divided shall be equal to the number of children then living.”
    
      Held, that the whole clause was intended to provide for the issue of a daughter who died during minority in the same manner as if she had died after majority.
    2. Dower — Election.
    A gift by a testator to his widow of one-third of the income of his real estate for life is to be deemed in addition to dower and does not put the widow to an election, as a person cannot be required to elect between two things which are precisely the same.
    Action for the construction of a will.
    Stickney, Spencer & Ordway, for plaintiff.
    Blair, Phelps & Lymap, for Francella Butler.
    Otto C. Wierum, Jr., for Jennie G. Butler, Mary E. Butler & James B. Brown.
    Charles W. Truslow, guardian ad litem of various infant defendants.
   Daly, J.

It is not clear that the testator intended successive subdivisions of the trust estates created by the will,' which would illegally suspend the ownership or the power of alienation. The first division is into trust estates for life for the four children, and there is a subdivision of the .share of a child dying without issue among the surviving children by way of addition to the portion originally held in trust for each survivor. It can, be argued that this involves a further subdivision upon the death of each second taker, and that a further addition to the shares held in trust for the survivors of the latter, and a possible third life interest in portions of the shares may thus be created; but it is not apparent, from the text of the will, that such was the scheme, and that the whole intention of the testator would be defeated by a different construction. We may hold, under the authorities in this state, that but one subdivision was intended (Everitt v. Everitt, 29 N. Y. 84; Vanderpoel v. Loew, 112 id. 161; Corse v. Chapman, 153 id. 466), iand that upon the death of the second taker (if a daughter or if the son under thirty) the addition to the share held in trust for each second taker will go, in default of issue of the latter, to the next of kin of the testator under the Statute of Distribution or of Descents, no taker of the remainder upon the death of such second taker withont issue being named by the will. "Upon the decease of any child withont issue, if the estate from which it derives an income for life has been increased by an addition upon the death of any other child, or of the widow, such addition upon such decease will be distributed under the statute.

There would seem to be no express provision, under another portion of the clause under discussion, for the inheritance by the issue of a daughter dying before reaching the age of twenty-one, of its mother’s share. The provision: “ Should any of my said children die before arriving at the age of twenty-one years, said residue shall be held in trust, as aforesaid, for the benefit of the survivors of them, and administered as above provided, only the number of parts into which said residue shall be divided shall be equal to the number of children then living,” would seem to leave unprovided for issue of a daughter dying under the age of twenty-one. But it can reasonably be held that, taken in connection with the preceding portions of the clause, such provisions would not prevent the issue taking in the same manner that it would if the mother died after reaching the age of twenty-one.

It is manifest from the provision, that the testator’s nephews and nieces are to inherit if all his children die under age without issue, that they are not to take in any other contingency. As to the provision for the widow from the real estate, it should be construed as an addition to dower, otherwise it is wholly meaningless. It gives her the income of a third of the real estate for life. If it were intended in lieu of dower, it would follow that she would be required to make an election between two things, which are precisely the same; and no such idle intention can be attributed to any testator. To require a widow to make an election, it must clearly and manifestly appear by implication that the testator intended the provision to- be in lieu of dower. Kimbel v. Kimbel, 14 App. Div. 570-579. This cannot be manifest where it appears that there is no room to choose, and there is nothing with respect to- which option can be exercised. The right to dower in the real estate, described in the undelivered deed of the testator, cannot be disputed. The execution of the deed by the wife with her husband during his lifetime without delivery conveyed nothing, and is not shown to have worked any estoppel against her. Judgment may be settled upon notice.

Ordered accordingly.  