
    Christian C. Haug, Individually and Executor, etc., Plaintiff, v. Henry J. Schumacher, Individually and Executor, etc., et al., Defendants.
    (Supreme Court, New York Special Term,
    August, 1899.)
    Will — Suspension of power of alienation — Bight of after-born grandchildren to take — Intestacy as to personalty.
    The will oí a testator, which did not dispose of the income of his personalty and created no trust as to his realty, first, forbid a sale of the latter until after the deaths of his wife and his two sons; second, gave his wife during life or widowhood one-third of the income of the realty and one-third thereof to each son; third, upon her death or remarriage, gave said income in equal shares to the two sons; fourth, upon the death of all three, gave all the estate real and personal “ to all of my grandchildren, to be divided among them equally share and share alike, per capita, not per stirpes ”. Finally, it authorized the executors to rebuild destroyed or dilapidated buildings.
    Held, that the Illegal inhibition of a sale of the realty during three lives must be rejected from the will.
    
      That, with this rejection, the power oí alienation was not suspended for more than two lives in being as the scheme of the will was that when a son died, having survived his mother, the title to one-half of the realty vested at once in all the grandchildren then living; and that, upon the death of the mother, the estate was divided into two shares, separately enjoyed by each son for life, with remainder over to the grandchildren surviving at the death of the particular son.
    That five grandchildren, who were living at the death of the testator, did not take vested interests to the exclusion of grandchildren born after the testator’s death.
    That the testator died intestate as to his personalty.
    Action for the construction of a will.
    Tillo, Ruebsamen & Higginbotham (E. G. Higginbotham, of counsel), for plaintiff.
    Reeves, Todd & Swain (Alfred G. Reeves, of counsel), for Schumacher and others.
    W. H. Steinkamp, guardian ad litem (Abel Crook and A. 0-Salter, of counsel), for infant Hildenbrand.
    R. G. Babbage, guardian ad litem, for other infants.
   Russell, J.

John C. Haug, of the city of Hew York, died the 26th day of December, 1897, owning personalty of the value of $77,000, and realty of the value of $114,000. He left a widow, Walburga Haug, a son, Christian C. Haug, the plaintiff, who is married, but childless; another son, Frederick L. Haug, married, with four children, aged from two years to eleven, and a grandson, the only child of his deceased daughter, Louisa Hildenbrand, which grandson is now of the age of thirteen years.

The clauses of his will which require construction by this court, are as follows:

“Sixth. It is my will and pleasure and I hereby direct that none of my real estate shall be sold until after the death of my said wife and my two sons.
“Seventh. I give and bequeath the equal one-third part of all the income, rents, issues and profits of all the rest, residue and remainder of my lands and real estate of what nature and kind soever and whatever the same may he at the time of my death to my wife Walhurga Haug for and during the term of her natural life or so long as she shall remain my widow and not marry again in lieu of dower, the remaining equal two-thirds of the income, rents, issues and profits of my said lands and real estate, I give and bequeath to my two sons, Fréderick Ludwig Haug and Christian Charles Haug to be divided among them equally share and share alike.
“Eighth. Immediately upon the death of my said wife or her remarriage whichever event shall first happen, I give, and bequeath, all the income, rents, issues and profits of my said lands and real estate to my two sons Frederick Ludwig Haug and Christian Charles Haug to be divided among them equally share and share alike.
“Ninth. ■ Immediately after the death of my said wife and the death of my said two sons Frederick Ludwig Haug and Christian Charles Haug, I give, devise and bequeath all of my said estate, real and personal, to all of my grandchildren, to be divided among them equally share and share alike, per capita, not per stirpes.
“Tenth. I hereby authorize ánd empower my executors to rebuild any of the buildings now standing upon any of my lands and which may become destroyed or dilapidated by fire or otherwise, and to use and employ any moneys or funds that may be in their hands belonging to my estate for the purpose of such rebuilding.”

In case of intestacy, the laws of the State of Hew York endeavor to make a fair disposition of the property of the deceased, with due regard to the claims of next of kin and heirs. But there is accorded to the testator as an inherent right, where he has accumulated or preserved property, the power to dispose of the same by will, and let his parting directions govern its ultimate disposition, although he has forever ceased to need its use. This is not only as an incentive to the judicious conservation of property through life, but because he, better than all others, knows the condition in which he leaves it; the needs of those who are dependent upon him; the safeguards required to accomplish benefit, combined with protection, and all of the other details of fact and circumstance involved in correct judgment. The courts will go far to accomplish the beneficial results if they can safely ascertain the testator’s wishes., They will not allow rules designed by public policy to be transgressed; but if they can effectuate the main object of the testator’s directions, they will blot out those lingual expressions which bring invalidity, but which only serve to frustrate the testator’s design. Even a limitation may be implied to effectuate the general scheme. Roe v. Vingut, 117 N. Y. 204.

The separation of the void finishing of a trust from the valid part of the trust may be made. Duncklee v. Butler, 38 App. Div. 103.

A division may be had of the portion into separate funds to save it from the objection of invalidity; Allen v. Allen, 149 N. Y. 280.

Even though there be an implied provision as to accumulations which renders the trust as a whole ineffective, the primary intent may be regarded and the valid trust separated from the void. Cochrane v. Schell, 140 N. Y. 516.

Though the scheme be to preserve the fund as a unity for investment, a severance of it into shares by a conclusion of law may be made to prevent undue suspension. Schermerhorn v. Cotting, 131 N. Y. 48.

Though the restriction of the vesting of title to such children as shall be living at a future time, may render the vesting of that title at such time impossible, as offending the policy of the law, yet such restriction may be lopped off to prevent the necessary conclusion. Henderson v. Henderson, 113 N. Y. 1.

In the present case, no express trust is created by the will, giving title to the executors, of the realty or the personalty; and none will be implied where such implication makes the disposition of the property void. Greene v. Greene, 125 N. Y. 506.

So far as I can penetrate the wishes of the testator in this imperfectly drafted will, he desired to provide a satisfactory income for his wife and two sons during their respective lives, and to give thereafter to his grandchildren the estate per capita, and not per stirpes, so that each living descendant of the second degree should participate in the bounty of the grandfather. His eye was mainly upon'the realty, which was the largest part of his property, and he knew that his personalty would be diminished by the payment of the specific legacies and his obligations, including probably the mortgage on one of the pieces of realty. His widow and his two sons needed the benefits of his property, undiminished by the power of deduction through their alienation of any part during their lives; each dying, he or she needed that benefit no longer, and it was among the survivors he had to look for the distribution of the benefits of the residue. By the seventh clause of his will, he indicates the use of the income during the three lives, giving to the widow until a possible remarriage, in lieu of dower, the income of one-third from his realty, and to each of his two sons the income of another third. By the eighth clause, he provides for the passage over to the sons of the widow’s income on her death or remarriage, leaving out of this portion of his will any right of survivorship as between the two sons, thus making them tenants in common during their respective lives, but with no direction, the absence of which is significant, as to the income of the realty during the life of the third survivor.

He suspends the power of alienation of the whole only during the life of the widow; he further, immediately after the death of the wife and the death of the two sons, devises and bequeaths all of his real and personal property to all of his grandchildren per capita, and not per stirpes. If one son dies without the vesting of a separate share of the realty, he has made no provision whatever for the continued income of that share during the life of the other son. He does not give it to that surviving son, nor does he anywhere indicate that either of these two sons shall have the income of the whole in any contingency. It may be he intended delaying the final vesting of title until the death of the surviving son, in order that it should be then determined what grandchildren survived who should take by the head and not by the stock; for we cannot reasonably believe that he meant to limit the remainder to the five grandchildren living at his death, one of whom "was born after he made the will, and thus exclude not only other children, born to a son who had four children, but the entire possible issue of his other son who had no children. Hope deferred in such cases is of larger value to a father or grandfather than as to some other events of the future. Nothing in the will indicates a distinction of division between all of the grandchildren, who would in the future represent that family. Words of survivorship apply only to life or déath during the existence of the testator where there is an absolute gift, and never where some take a preliminary life interest a||er the testator has passed away. Mullarky v. Sullivan, 136 N. Y. 227.

We must, therefore, conclude that this will cannot be sustained by holding that the five living grandchildren took a vested interest at the death of the testator, and, therefore, as a necessary consequence, be prepared to face the conclusion that all of the takers of at least some interest in the realty would not be known until the third death, which in all probability will be that of one of the two sons.

This consideration, however, does not destroy the power of the court to uphold the devise in the greater part of its beneficent results. Henderson v. Henderson, supra. When one of the sons dies, within the apparent scheme of the testator’s will, the-title to one-half of the realty, if he has survived his mother, may go immediately to the grandchildren then living, and so that moiety of the real estate is suspended only for two lives, in being at the time the devise took effect. Upon the death of that mother, the estate was divided into two shares, each occupied and enjoyed for life by a son, with remainder over to the grandchildren of the testator surviving at the death of the particular son. So that, by this construction, neither moiety of the realty is suspended from the power of alienation beyond the life of the mother and the particular son representing the share.

We have thus effected the main intent of the testator’s will to provide a suitable income to the widow for life, to provide the same for the two sons during their lives, such incomes enhanced by hers when she no longer needs it, and a division of the realty for the grandchildren, with no inequality between them, except a possible addition of one or more after the death of the. son first dying, to a division in only the remaining share, which inequality is so remote at that distant period of time as not to seriously embarrass the conclusion reached. It is, of course, plain that the sixth clause, directing that none of his real estate be sold until the death of his wife and two sons, must be rejected as void, nor is it an essential part of the scheme. It also, follows that the personalty, the amount of which, after payment of legacies and debts, is not apparent, must go into intestacy and be distributed under the rule in such cases. It is somewhat singular that nowhere in the will should the testator provide for the income of that personalty, if it was of magnitude, should make no disposition of the residuary, and should only refer to this personalty in s disposing way by the casual allusion to it in combination with the realty as to the time of division.

I do not think that the last clause of the will, providing for the substitution of Samuel Schumacher, should Henry Schumacher die before the final settlement of the estate, affects the question considered. That clause has reference only to the settlement of the account of the executors as executors. Williams v. Freeman, 98 N. Y. 577.

Eo question is raised by any of the counsel as to the proper construction of the fifth clause in regard to the $2,000-fund for the boy Hildenbrand. There is, therefore, no occasion to decide as to whether the opinion of the surrogate in his construction is conclusive upon all the parties, and that construction is accordingly here adopted.

Judgment may be entered in accordance with this opinion.

Judgment accordingly.  