
    Henry Arthur, Jr., Appellant, v. Henry Arthur, Individually and as Executor, etc., of Sarah Arthur, Deceased, Respondent, Impleaded with Florence A. Kellogg and Others.
    
      Will — when an accumulation of the rents and profits of land, after majority, is not directed thereby.
    
    An action was brought to procure the partition of certain lands which had belonged to Sarah Arthur, who, by her will, devised all her property to her husband as executor in trust to convert it into cash, invest it, pay such sums as might be necessary to support each and all of her children until they arrived at the age of twenty-five years, and on their attaining that age distribute it among them, and if any of the children died before that age and left issue she provided that the issue should take “ that proportionate part of iny estate, with its accumulation, to which the said parent would be entitled had he or she attained the age of twenty-five years at the time of said decease.” The plaintiff contended that the will directed an improper accumulation of the rents and profits of lands for a period extending beyond the minority of the beneficiaries; that this was void as respected the time beyond minority, and that the plaintiff became seized of his undivided share of the property and entitled to its possession on reaching the.age of twenty-one.
    
      ■Reld, that it was the intention of the testatrix that none of her children should have possession of their shares in the corpus of the estate until they reached the age of twenty-five years, they in the meantime to receive their support and maintenance .from the trust fund;
    That no accumulation of the rents of the real estate after any child arrived at the age of twenty-one was specifically directed, nor was it intended;
    That the accumulation of any possible surplus of the rents and profits of the land was valid until each child arrived at the age of twenty-one years, at which. time he became entitled to the whole of his or her share of such accumulation;
    That full effect would be given to the word “ accumulation” as used in the last clause of the will by limiting its meaning to such a sum as had legally accu-. mulated in the hands of the trustees before the deceased child had attained his majority;
    That as it appeared that the estate of the testatrix consisted solely of the premises sought to be partitioned and about twenty or more vacant and unproductive lots, it was evident that the condition contemplated by the testatrix was not a surplus of rents and profits, but rather an income insufficient for the support of her children, because of which the will permitted the trustee to draw from the coi’pus of the estate for the support of the children;
    That where an instrument is capable of two constnictions the court must adopt that construction which will render the trust attempted to be created thereby legal and operative.
    
      Appeal by the plaintiff, Henry Arthur, Jr., from a judgment of the Supreme Court in favor of the defendant, Henry Arthur, individually and as executor, etc., of Sarah Arthur,, deceased, entered in the office of the clerk of the county of Kings on the 2d day of January, 1896, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the plaintiff’s complaint upon the merits.
    
      L. Laflim, Kellogg and Alfred G. JPetté, for the appellant.
    
      Jesse Johnson, for the respondent.
   Brown, P. J.:

The appellant alleges in his complaint that he is seized of an undivided one-quarter of a certain lot of land, with the buildings thereon, situated on Myrtle avenue in the city of Brooklyn, the lot being twenty-two feet in front and in rear, and seventy-five feet deep, and he seeks in this action a judgment directing a sale of said land and a division of the proceeds among the several tenants in common. The appellant is the son of Sarah Arthur, who died seized of said land in March, 1882. Mrs. Arthur left surviving her her husband, the defendant Henry Arthur, and four children, all of .whom were minors at the time of their mother’s death;

Mrs. Arthur left a last will and testament, which was duly admitted to probate as a will of real and personal .property, whereby she devised to her husband, as executor, all the property of which she died seized, upon the following trust :

“First. To convert the same, or such portions thereof as shall in his judgment seem best, into cash, and to keep the same, and the proceeds and income of all my estate, after paying the necessary expenses, safely invested.
“ Second. To pay such sum as may be necessary for the expense of supporting, maintaining and educating each and all of my children in such manner as my husband shall deem suitable and proper until my said children shall arrive at the age of twenty-five years.
Third. Upon the arrival of my said children, respectively at the age of twenty-five years, to distribute and pay over to them respectively such portion of my estate as they would be entitled to in case of my dying intestate.
“Fourth. In case of the decease of any of my said children before arriving at the age of twenty-five years, and leaving issue surviving him or her, such issue is to take, upon the decease of their jiarent as aforesaid, that ¡n-oportionate part of my "said estate, with its accumulation, to which the said parent would be entitled had he or she attained the age of twenty-five years at the time of said decease.”

It is the appellant’s contention that the trust thus created by the will is one which permits an accumulation of the rents and profits of land for a period extending beyond the minority of the beneficiaries, and is, therefore, void as respects the time beyond such minority (1 R. S. 726, §§ 37,'38), and that the plaintiff became seized of an undivided fourth of said property and entitled to the possession thereof on attaining the age of twenty-one years.

If the trust created by the will was one solely for the accumulation of the rents and profits of land, or any part - thereof, this argument might prevail. But one of the cardinal rules for the construction of a will" is to give effect to the manifest ihtent of the testator, as deduced from the language of the instrument, and it is quite clear in this case that Mrs. Arthur did not intend that her children should, under any circumstances,, have possession of their shares in the corpus of the estate until they respectively reached the age of twenty-five years.

Until that period arrived the trust was to continue and the children’s right therein was to draw their'support and maintenance from the trust fund. The direction that the sum to be applied to the support and maintenance of the children was such amount only as the trustee should deem necessary for that purpose, was incident only to the main purpose of the testatrix, which was to provide for the education, support and maintenance of her children until they reached the age of twenty-five years. It is impossible, therefore, to avoid the conclusion that if the appellant’s argument is sound the result, must be to render the -whole trust void, in which case the property passed to the children under the Statute of Descent, subject to their father’s estate for life as tenant by the curtesy, and as it is evident that there could not be actual partition of a city lot twenty-two by seventy-five feet, with buildings thereon, the appellant would not be entitled to have the property sold, unless his father consented thereto in writing, and we should be compelled for that reason to affirm the judgment dismissing the complaint. (Code Civ. Proc. § 1533.)

But we are of the opinion that the trust estate created by the will is valid. An accumulation of the rents of real estate is not specifically directed, nor was such the purpose of the testatrix. The sum to be applied and expended for the support of the children was not limited to the income, but might be drawn from the corpus of the estate. The testimony shows that the estate of the testatrix consisted of the property described in the complaint and twenty or more vacant and unproductive lots in the city of Brooklyn, and it is quite evident, I think, that the condition which the testatrix contemplated and provided for was not a surplus of rents and profits which might accumulate in the trustee’s hands, but an income insufficient for the support of her children, which was provided against by granting to the trustee power to use the principal of the estate for that purpose.

If the language of the instrument before us is capable of two constructions, it is our duty to adopt that which will render the trust legal and operative, rather than one which will render it void. It does no violence to the language of the will to hold that, the main purpose of the testatrix being to create a trust for the support and maintenance of her children, each child became entitled to the whole of his or her share of the rents or profits of the real estate upon attaining the age of twenty-one years. ’The accumulation of any possible surplus of the income from the land was valid .until that period arrived, and there is nothing in the will which indicates any intention of the testatrix that after that period arrived an illegal accumulation was intended.

Full effect is given to the use of the word accumulation ” in the last clause of the will by limiting its meaning to such sum as had legally accumulated in the hands of the trustee before the deceased child had attained his or her majority. The language of the instrument permits this construction, and under well-settled rules applicable to the interpretation of wills it is our duty to adopt it.

The judgment should be affirmed, with costs. .

All concurred, except Bartlett, J., not sitting,.

Judgment affirmed, with costs.  