
    Mary Trotter Chastain, Respondent, v. Richard Curd Tilford and Others, Respondents, Impleaded with Hunt Tilford Dickinson and Henry M. Tilford, as Executor, etc., of Catharine Hunt Tilford, Deceased, Appellants.
    First Department,
    June 3, 1910.
    Will construed—provision working intestacy after two life estates — unlawful suspension of absolute ownership of personal property — invalid provisions not destroying "remainder of will.
    A will after making specific legacies bequeathed §10,000 to trustees to collect the income and pay it to a daughter of the testatrix for life; at her death the principal to become part of the residuary estate and to be divided equally between the residuary legatees as subsequently provided. ' •
    By the following clause one-fifth of the residuary estate was placed in trust, income payable to a son of the testatrix for life, upon his death the principal to become part of the residuary estate and to be divided equally between the remaining residuary legatees, subjeótto the same, terms and conditions provided in the case. of the other one-fifth portions of the residuary estate. Another one-fifth "portion- of the residuary estate was put in trust for the benefit of -another son under the same conditions. One equal óne-fifth part of the residuary estate was placed in trust, income to a daughter for life, on her death income to a great-grandson, if living, until he attained the age of twenty-five years, the corpus to be conveyed .to him if he attain that age, but if he ' died before arriving at the age of twenty-five years without lawfúl issue surviving, the corpus of that portion of the estate on his death and on the death of the daughter to become part of the residuary estate and tó be divided equally among the residuary legatees. Two other one.-fifth parts of the resid-uary estate were bequeathed to other sons of the testatrix and to their heirs.
    ' Reid, that while the will provided for a division of the original shares given to the. life beneficiaries in case they died, it made no disposition of an additional share which might come to any one of them on the death of his co-life beneficiaries in case he himself should also die, and hence as to the property taken by-one beneficiary by the death of the other, the testatrix died intestate;
    That such partial intestacy did not, however, destroy the general scheme of the will so as to require the rejection of the whole residuary clause.
    
      Held further, that the clause creating a trust for the life of the daughter, with a" further trust for the great-grandson, if living, until he should attain the age of twenty-five years, and if not the corpus at the death of the two beneficiaries to become part of the residuary estate, to be divided in the sarnie manner as the other portions, unlawfully suspended the absolute ownership of personal property in that it is possible that such ownership might be suspended for the life of the daughter, the great-grandson and the other .residuary legatees who ,by the terms of the will took only a contingent life interest in said share, not an absolute ownership;
    That the provision working such illegal suspension of absolute ownership was not so intermingled with the valid parts of the will that the whole will must fail, but the invalid provision should be deleted and the general scheme of the testatrix preserved.
    Whether or no there be an unlawful suspension of the absolute ownership of personal property is not to be determined from what actually happens, but upon what may happen under the terms of the will at the date of the death of the testator. Nor is an unlawful suspension of ownership or power of alienation made valid because the suspension actually terminates within the statutory period of subsequent events.1
    To fender suoh future estates valid they must be so limited that in every possible contingency they will absolutely terminate within the period prescribed by the statute.
    Appeal by the defendant Hunt Tilford Dickinson, by his guardian ad litem, Andrew Gr. Dickinson, from part of a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, and appeal by the defendant Henry If. Tilford, as executor, etc., from the whole of said judgment, which was entered in the office of the clerk of the county of New York on the 29th day of December, 1909, upon the decision. of the court, rendered after a trial at the New York Speeial Term, adjudging the 13th and 14th paragraphs of the will of Catharine Hunt Tilford invalid and void.
    
      J. Markham Marshall and Alton B. Parker, for the appellant Dickinson.
    
      John Brooks Leavitt, for the executor Henry M. Tilford.
    
      George Gordon Battle for the respondent Mary T. Chastain.
    
      Edward B. Hill, for the respondent Elizabeth T. Keferstein.
    
      Michael E. Eirtlcmd, for the respondent Frank B. Tilford.
    
      Stuart G. Gibboney, for the respondent Bichard 0. Tilford.
   Scott, J.;

This appeal presents the question of the validity of certain trust provisions contained in the will of Catharine Hunt Tilford, deceaéed. The provisions called in question involve the disposition of the residuary estate, consisting wholly of personalty, and amounting as it is said to over $800,000.

The testatrix at the time of her death on or about September 3, .1908, was a widow* upwards of eighty years of - age. She left her ■ surviving one daughter,, the plaintiff herein, a widow with an infarit grandson,/Hunt Tilford Dickinson,- who -is one of.-the proposed beneficiaries of liis great-grandmother’s bounty; two grandchildren, Frank T. Tilford and Elizabeth T. Eeferstein,'children of a deceased son ; four sons, Richard C.,. Wesley H., Edward Á. and- Henry M." Tilford, of whom Richard; Wesley and Edward' were, unmarried at the- date of the death of the testatrix.

Wesley and Edward have since died. The grandchildren,. Fran It V. Tilford and Elizabeth T. Keferstein, received legacies of $5,000 each, but do not participate in the residuary estate for the reason stated by the testatrix in her will. The disputed clauses are the 13tli and, 14th, which read as follows: “ Thirteenth. I bequeath, ten thousand dollars to my Trustees hereinafter named or the survivor of them, in trust to invest, .re-invest and manage the sainé, collect the issues and profits thereof, and pay the net income thereof, quarterly,, to my daughter, Mary Trotter Chastain, during her life, and upon her death the principal sliall again become a part of my residuary estate, and shall be' divided equally between the devisees of said residuary estate in accordance with the terms - and conditions hereinafter provided.'

Fourteenth. I devise and bequeath all the rest, residue and remainder of my estate, real and personal, as follows : I devise and bequeath one equal fifth part thereof .to my Trustees hereinafter named, or the survivor of them, in trust to enter into possession thereof, to invest; refin vest and manage the same,-collect, the rents, issues and profits thereof and. pay the said rents, issues and profits quarterly to my son Richard Curd Tilford, during his life, and upon his death the principal shall again become a part of my residuary estate and shall be divided equally between the remaining- devisees of said residuary estate, subject to the same terms and conditions as; are herein provided for'the several one-fiftli portions thereof.

“ 1 devise and bequeath one equal fifth part thereof to my Trustees hereinafter naméd, or the survivor of them, in trust to- enter into possession thereof* to invest, re-in.vest and manage the same, collect "the rents* issues and profits thereof and pay the said rents, issues and profits quarterly to my. son Edward Alfred Tilford, during his' life, and upon his death the principal shall again become a part of my residuary estate and shall be divided equally, between the remaining devisees of said residuary estate, subject to' the same terms and conditions as are herein provided for the 'several one-fifth portions thereof.

“ I devis.e and bequeath one equal fifth part thereof to my Trustees hereinafter named, or the survivor of them, in trust to enter into possession thereof, invest and. re-invest and . manage the same, collect the rents, issues and profits thereof and pay the said rents, issues and profits quarterly to my daughter Mary Trotter Chastain during her life, and upon her death to pay the. rents, issues and profits quarterly to my great-grandson Hunt Tilford Dickinson, if he is living, until he is twenty-five years of age, and when he shall arrive at the age of twenty-five years, my said trustees shall convey and pay over to him, the said Hunt Tilford Dickinson, the said trust estate. If, however, he" shall die before he arrives at the age of twenty-five years, without lawful issue him surviving, the principal of said trust estate shall, on his death, and the death of my said daughter, become again a part of - my residuary estate and shall be divided equally among the devisees. of my residuary estate, subject to the same terms and conditions as herein provided for-the several one-fifth portions thereof.

“I devise and bequeath one equal fifth part thereof to my son Wesley H unt Tilford and his heirs. I devise and bequeath one equal fifth part thereof to my son Henry Morgan Tilford and his heirs.

“ The reason I have not devised any of my estate except as above to the children of my deceased son J. B. Tilford, is because of his wish that I should not do so, he stating that his children would inherit from him all that he desired they should have.”

The controlling purpose of the testatrix in the disposition, of her residuary estate is very evident. She desired that her daughter and each of her four sons should share equally in. the enjoyment of the estate during their respective lives. As to the daughter and the sons Edward A. and Richard C. she proposed to limit their enjoyment to the use of the income, the whole principal ultimately going. to the sons Wesley and Henry and their heirs and the. great grand-, son, Hunt Tilford Dickinson. . The criticism made.. upon this attempted disposition is that it violates or in certain contingencies may violate the provisions of law contáined in section 2 of the Personal Property Law (Gen. Laws, chap. 47; Laws of 1897, chap. 417), which are now embodied in section 11 of the Personal Property' Law (Consol. Laws, chap. 41; Laws of 1909, chap. 45),. that: “ The absolute ownership of personal property shall not be suspended by any limitation or condition, for a longer period than during the continuance and until the termination of not more than two lives in being at the date of the instrument containing such limitation or condition ; or, if such instrument be a last will and testament, for not more than two lives in being at the death of the testator.” As the residuary clause stands, if it must be construed as the respondent construes it, there is certainly a possibility that it might be found to violate the rule above quoted. That such a possibility is remote would not be sufficient, of itself to save the will, for in determining the validity of a will we are bound to.observe two elementary principles often stated and but recently reiterated with emphasis by the Court of Appeals. These are : First. Such validity must be determined not in the light of what has actually transpired, but from exactly the samp pqint of view from which it would be regarded had a suit been brought to determine the validity of the will' at the time of the death of the testator instead of at a subsequent period. That is to say, the validity of a will depends not on what has happened since tile death of the testator but on what might have happened. Second. In determining the validity of limitations of estates Under the statutes with reference to absolute ownership and restraint of alienation it is not sufficient that the estates attempted to be created may, by the happening of subsequent events, be terminated within the prescribed period, if. such events-might so happen that such estates might extend beyond that period. In other words, to render such future estates valid they must be so limited that in every possible contingency they will absolutely terminate at such period, oj? such estates will be held void. (Matter of Wilcox, 194 N. Y. 288, 295; Schettler v. Smith, 41 id. 328, 334.) It so happens that since the death of the testatrix, one of her sons, Edward A., to whom was given a life interest in the residuary estate, lias died, and according to the terms of the will upon his death the principal of the sum given in trust for his benefit again became a part o'f the residuary estate “ apd shall be divided equally between the remaining devisees of said residuary estate, subject to the same terms and conditions as are herein provided for the several one-fifth portions thereof.” That is to say the share held in trust for Edward A. is to be divided between Mrs. Chastain, Richard C. Tilford, Wesley A. Tilford . and Henry M. Tilford, the terms and conditions attached to the gifts being that Mrs. Chastain and Richard shall enjoy only the income of their shares, the trustees holding the principal,. while Wesley and Henry take their shares outright. Up to this point the attempted disposition is perfectly valid. The possible invalidity comes afterwards. Suppose that Richard C.. Tilford, the other son holding a life interest in one-fifth of the residuary, dies next. The trustees will hold for his benefit at the time of his death his original share of one-fifth, and the sub-share of one-quarter of Edward’s share. The will makes no disposition of this sub-share upon the termination of the second life interest. The will by its terms provides only for a division and distribution of the original share given for the life of each of the children to whom life, interests are given. '• It is not expressly provided, and we are not called upon to so construe the will, that the sub-shares arising upon the termination of one life, estate shall be added to and become a part of the principal share given by the will to tlie other life beneficiaries. . (Schey v. Schey, 194 N. Y. 368; Vanderpoel v. Loew, 112 id. 167.)

In case then of Richard’s death, after that of Edward, the terms of the will will be sufficiently, and indeed precisely, complied with if the principal fund originally set apart for Richard be divided between Mrs. Chastain, Wesley and Henry, or the respective heirs of the two latter, leaving the sub-share which came to Richard upon the death of Edward undisposed of. As to that sub-share, after the death of Richard, being one-twentieth of the residuary estate, the testatrix, wittingly or unwittingly, died intestate.

The same rule applies to the sub-shares which may come to Mrs. Chastain upon the death of either of her brothers , Richard or Edward. Each of the provisions for Richard, Edward and Mrs. Chastain reads alike. One-fifth of the estate is given to the trustees, to hold the same and pay the income to the named beneficiary. What is to be divided upon his or her death is the principal,” meaning obviously the principal of the share originally set apart.. The will certainly does not say in words that the sub-shares resulting from such a division shall be added to. or become a part of “ the' principal ” held- for either of the life beneficiaries, and it would require a strained and" forced construction so to read it, and one which would result in the total destruction of the whole, residuary clause. So in the case of Mrs.: Chastain, .wliat is to go to her grandson Upon her death is not the sub-shares which may have come to her from her brothers, but “ the said trust estate,”'meaning obviously the one-fifth of the residuary estate, which was originally sét apart for his grandmother. . Any sub-shares which may have come to her from her brothers are not disposed of, -after her death, by the will of Mrs. Tilford. The result of this, construction is to pronounce ultimate intestacy as to two-fifths of the residuary estate, but such intestacy is the result of the language used by the testatrix, and not of.any forced construction. It may be that it was unintentional on her part, but even if it was, it does not so far déstroy "the general scheme bf her will as to require the rejection of the whole residuáry clause. There is still left the equal division, of her estate into five parts for the- benefit of her five children, the enjoyment during life by three of the children of the share alloted to him or her, with the possible enjoyment of a sub-share out of the share allotted to another ; the enjoyment -in absolute possession of one-fifth each by two sons,-with the possible enjoyment of the sub-share allotted to another, and finally the ultimate enjoyment by the great-grandson of the one-fifth share allotted to his grandmother for her. life. So long as the general scheme can be carried out, the fact that it may be found in the end that as to a minor portion of her estate the testatrix has died intestate, does not materially interfere with her general plan. . As the devolution will be deemed to take place when the legacy lapses, rather than. upon the death of the testatrix (Savage v. Burnham, 17 N. Y. 561, 574), it is impossible to say now how far this possible intestacy will depart from what we may presume to have been the desire of the testatrix as to the final, vesting bf her estate. What has been said as to the 14th clause applies equally, to the special legacy in trust for the benefit of Mrs. Chastain provided for in the 13th clause.' *

There is one possible contingency in which the will, as drawn, might produce an illegal suspension of the absolute ownership of a fraction of the residuary estate. It relates to the disposition of the one-fifth to be held for the life of Mary Trotter Chastain. As to this share, if Hunt Tilford Dickinson should survive his grandmother, but should die without issue and before attaining the age of twenty-five years, the will requires that the one-fifth share shall be divided equally among the devisees of the residuary estate, “ subject to the same terms, and conditions as herein provided for the several one-fifth portions thereof.” The' proper construction of this clause, as already pointed out, is that in the-contingency supposed Richard and Edward, if then living, would each take a life interest in one-quarter of the share set apart for .the benefit of Mary Trotter Chastain. Thus, as to one-twentieth or perhaps two-twentieths of the residuary estate, the will seems to provide for a possible suspension of the absolute ownership for three lives, viz., those of Mary Trotter Chastain, Hunt Tilford Dickinson. and either Richard or Edward Tilford. • There is no legal obstacle to the suspension of absolute ownership during the successive lives of Mary Trotter Chastain and Hunt Tilford Dickinson, nor to the division of the share among the sons of the testatrix upon the death of both Mrs: Chastain and her grandson, and if upon the death of these two the share was directed to be divided between and paid over to the four sons of the testatrix absolutely the provision would be unassailable. The illegality, consists in providing, as we think the will clearly does and as the testatrix undoubtedly, intended that it should, that Richard and Edward Tilford should take only a life interest in, and not the absolute ownership of their several sub-shares of the share set apart for the benefit of Mrs. Chastain. This suggests the question whether or not the illegal provision may be deleted without so far destroying the scheme of the will as to require its entire rejection. • It is a well-established rule of law in this State that where the several .parts of a will are so intermingled or interdependent that the bad cannot be separated from the good,- the will must fail altogether; but when it is possible to cut out the invalid provisions so as to. leave intact the parts that are valid and to preserve the general plan of the testator, such a construction will be adopted. As was recently said by the learned judge who wrote for the Court of Appeals in Schey v. Schey (supra), speaking of a will containing many features similar to those in the will at bar: “If we had been compelled to hold that the particular provision in controversy did provide for an unlawful suspension of the power of alienation, ánd, therefore, was void, we should have found -no' trouble in further .holding that it could be detached and separated from the other provisions creating and defining the trust, and that such other provisions and the trust' as created and limited by.them could be saved from destruction and enforced. A complete and lawful trust is cheated before we encounter the provision which is challenged; The latter provides for a limitation over in the event of a. single and entirely distinct .and' disconnected contingency, and there is abundant authority for the proposition .that under such circumstances an invalid clause,, although one of Several employed'. in the creation of a single trust, may be eliminated and disregarded and the trust otherwise sustained.” These, words are directly apposite to the invalid provision contained in the present will. It is true that they may be' said to be obiter, because the disputed provisions in the will then under discussion were found to be valid, but they are supported by a long line of _ precedents. (See Savage v. Burnham, 17 N. Y. 561; Oxley v. Lane, 35 id. 340; Tiers v. Tiers, 98 id. 568; Smith v. Chesebrough, 176 id. 317; Kalish v. Kalish, 166 id. 368, and the cases ■ therein cited and' discussed.) . The effect of exercising tins power is not to make a new will for the testator, but to sustain the will in its general scope and purpose, and prevent .a complete thwarting "of the testator’s intentions by reason of a minor and .unimportant defect’. . It is manifest that the excision of the possible, life estate of Richard and Edward in five per cent or even ten per cent of the residuary estate will not materially destroy the scheme which the-testatrix had'in mind. The attempted illegal disposition may, therefore, -be disregarded. .

It follows that the' judgment appealed from must be reversed, and a judgment entered in accordance with the view's expressed in this opinion, with costs payable out of the estate to, all. parties who have separately appeared and filed briefs.

Ingraham, P. J., Laughlin, Clarke and Miller, JJ,,.concurred.

Judgment'reversed and judgment ordered as directed in-opinion, with costs payable out. of the estate to all parties who have separately appeared and filed briefs. Settle order on notice. ' •'  