
    John F. Montignani, Adm’r, etc., Resp’t, v. Mary T. Blade, et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December, 1893.)
    
    1. Will—Unlawful suspension
    Where, by a will, the estate vests in the son of the testator, if alive, if dead, then in the grandson, if alive, and, if both die within ten years, then, immediately on the happening of that event, vests in such other person as may he under the will entitled to it, even though the ten years’ limit has not expired, the provision is valid.
    
      2. Same.
    A clause, which is limited only by a definite period of time, not dependent upon the expiration of two lives in being, is within the prohibition of the statute.
    
      3. Same—Trusts.
    If a valid trust is created, it will not fail for want of a trustee, as the court will appoint one.
    4. Same.
    Where the testator appoints his executors as trustees, gives them an estate for a number of years, and names the final beneficiaries, a trust is created.
    This action was brought by the administrator with the will annexed of Barnabas Staats for a judicial construction of such will and the direction of the court as to the administration and disposition of the estate devised and bequeathed therein, and this appeal is from a judgment and decree entered in such action.
    
      Geo.. EL Malory, for pl’ff, resp’t; Robert G. Sherer, for Mills T. C. Staats, app’lt; Geo. H. Stevens, for Mary T. Blade, app’lt; Allen McDonald, for Barnabas E. Staats; Eugene D. Flannigan, for Belle T. Staats.
   Mayham, P. J.

This action was tried by the learned judge principally upon agreed facts, stipulated by the counsel for the respective parties, and the main contention on this appeal arises out of the determination of the trial court upon the second, third, fourth and fifth disposing clauses of the testator’s will.

If that determination is correct, then there is little or no difficulty in the administrators administering the estate under the will and law as laid down by the learned trial judge.

Each of these disposing clauses except the fifth suspended the alienation of the property devised and bequeathed for a period of years, nor depending upon the continuance of two lives in being, and each assumed to create a trust to continue during the period of such suspension.

The trial judge held that such suspension was illegal and that property so sought to be devised and bequeathed was not by said clauses in the will disposed of by it, and that the same lapsed and reverted into and became a part of the estate of the deceased.

It is insisted by the counsel for the appellant Barnabas E. Staats that the bequest to him in the second disposing clause of the will of the stock in the Wells, Fargo Co. Express,” is not subject to the objection, that it is subject to an illegal trust created in the will, and that the vesting or alienation of the same is not by that clause suspended for more than two lives in being.

That clause reads as follows: “ I hereby bequeath and give my son Barnabas E. Staats all my shares of stock in the Wells Fargo Company Express to be held in trust by my executors ten years from and after my decease, then to be delivered and transferred to him, if deceased, do and continue the same to his son William, now in his eighth year of age. The dividends shall be collected, when and as declared by my executors until transferred and delivered and paid to my son, or, if deceased, to his son William, if both are deceased before the ten years have expired, then transfer and deliver the said shares to my daughters Lydia Anna Staats and Mary Yates Staats each share and portion equal. If either daughter is deceased, her portion shall be transferred and delivered to the remaining daughter. If both are deceased, then this bequest shall be given to my daughter-in-law, wife of my son John H. Staats, or their heirs, and my daughter-in-law, Harriet Staats, or her heirs, each share and portion equal.

This language, though somewhat inartificial and obscure, does not extend the period of the suspension of alienation beyond the life of testator’s son, Barnabas, and grandson, William.

If both of these lives expire before the limitation of ten years fixed for vesting in one of them ” have expired, then transfer and deliver said shares, each share and portion equal.” The clause then provides for the vesting at that time of this stock if any of the persons first named are dead. There can be little doubt but that this clause limits the suspension to the time of the death of Barnabas and his son William if both die before the expiration oftthe ten years.

It will be observed that this disposing clause is independent of any other, and its execution does not impair any other rights under the will, except as it may diminish the residuum of the testator’s estate.

Was this provision of the will an illegal suspension of the power of alienation or an illegal accumulation of the income of the stock ? In Dodge, ex'r, v. Pond, 23 N. Y., 69, it was held that: “ A testator, without violating any law, may. not only suspend the absolute ownership of his estate during the continuation of any two lives in being. at his death, but may dispose of the income annually as it accrues during this period of suspension ; he may also give vested legacies and provide for their payment at a future period. The court also held in that case that it is no violation of the statute against accumulations for a testator after rendering his estate inalienable for two lives to give a pecuniary legacy, payable at a future period, in such a manner as to show that he intended that they should be paid exclusively from income as it accrued, leaving the corpus of the estate to pass unimpaired to the residuary legatee.

In Schemerhorn v. Cotting, 131 N. Y., 58; 42 St. Rep., 608, Peckham, J., in discussing a question similar to the one raised on this clause, uses this language: “ A limitation of a trust estate for an arbitrary period of time, such as fifty years, is valid, provided a termination at an earlier period is called for by the expiration of two lives in being at the time of the creation of the trust.

If provision is made for such termination, the income of the estate may, in the meantime, be divided among any number of successive lives.”

Applying the principal of these decisions to the provisions of the second disposing clause in the will under consideration, it cannot be held void for an alleged suspension of the vesting of this stock or of the suspension of the power óf alienation. We must, therefore, hold that the conclusion of the learned judge upon this disposing clause in the will was erroneous, and the clause must, therefore, be upheld as a valid disposition of these stocks. This is upon our construction of the clause, that the trust estate terminates with the death of the two lives in being at the time of the creation of the estate, if they die within the ten years.

If they' or either of them are still living at the end of the ten years, then the estate vests in Barnabas, if alive, if dead, then in William, if alive, and if both die within the ten years, then immediately upon the happening of that event, it vests in such of the other persons as may be under the will entitled to it, even though the ten years limit has not expired. This construction we believe to be in harmony with the intention of the testator, and not in violation of any rule of law.

Hor do we believe that the limitations over after the death of Barnabas and his son, within ten years, too remote to enable them to take in the order of their survivorship as designated in the will. On the happening of such event, the title would devolve on the person entitled to take co instanter.

We think the third disposing clause comes clearly within the prohibition of the statute, as it is limited only by a definite period of time, not dependent upon the expiration of two lives in being, and is, within the provisions of the statute, absolutely void.

Upon this clause we are urged by the learned counsel for the beneficiaries to follow what is claimed to be the manifest intention of the testator, and uphold the bequest.

But we are not at liberty to violate the plain language of the statute, and the well authenticated and authoritative adjudication to uphold the intention of the testator.

In Underwood v. Curtis, 127 N. Y., 525 ; 40 St. Rep., 255, it is held that a provision by which the possession of personal property and the legal estate therein, is vested in a trustee during the continuance of the trust, the absolute ownership of such property is suspended and the validity of the trust, the duration of such suspension, must be limited to two lives in being, and not to a term of years, however short. Smith v. Edwards, 28 Hun, 223. As to the fourth disposing clause in said will, the learned counsel for Mary Staats, now Mary Staats Blade, insists that the devise of the real estate therein made, is absolute, and that no trust is created in fact as to the same. The language of that provision is as follows :

“I hereby bequeath to my daughter, Mary Yates Staats, the house and lot Ho. 52 Elm street, now occupied by myself, also all the furniture and house-keeping articles and utensils therein, for her own occupancy and use, to be held in trust by my ex-, ecutors seven years from and after my decease. I also bequeath to said daughter all my shares of stock in the Hew York Central & Hudson River Railroad Co., the dividends, when declared, shall be collected by my executors and paid to said daughter.

At the expiration of the seven years the foregoing bequests shall be transferred and delivered to said Mary Yates Staats as and when so bequeathed by her and practicable. If this daughter is deceased before the expiration of the seven years these bequests shall be delivered to, or disposed of, as my daughter Lydia Anna Staats, and my son John J. Staats shall request and direct; the proceeds shall be paid to my daughter Lydia Anna Staats and my daughter-in-law, Willa F. Staats, and my daughter-in-law, Harriet Staats, each share and portion alike, as near as can be done, and satisfactory to all concerned.”

By this provision it is contended, that no valid trust was created as to the real estate. The testator named in his will two persons as executors, and while it appears that the persons named did not qualify, it is also true that if- a valid trust was created, it would not fail for want of a trustee, as the court would appoint one. We must therefore look at the provision under consideration, to ascertain whether a trust was created.

The language is — “I hereby bequeath to my daughter Mary Yates Staats the house at Ho. 52 Elm Street, now occupied by myself, also all the furniture and house-keeping articles therein for her own occupancy and use, to be held in trust by my executors seven years after my decease.”

It is quite clear that, but for the concluding paragraph of the above quoted provisions of the clause, this daughter would have taken a fee in the real estate. But the court in attempting to give effect to this provision, must read and give effect to all of its parts, and is not at liberty to expunge that part in which the testator attempts to create a trust.

If he had failed in that attempt, we may give effect to the balance of the provisions'of the clause. But has he failed ?

He names his executors as trustees. He gave them an estate for seven years; and names the final beneficiaries. This is all that is required to - create a trust. Greene v. Greene, 125 N. Y., 510; 36 St. Rep., 30.

Iu that case, however, it was held that no trust was created for the reason that the legal and trust estate were sought to be given to the same persons, and that the legal estate dominated and merged the trust estate and no trust was therefore created.

But in the case at bar the trustees and beneficiaries are not identical, and the estate is sought to be suspended for seven years and at the end of that period was to vest in Mary, if living, and if not, in some other person. Clearly by the provisions of that -clause the power of alienation was suspended for seven years.

Suppose we assume that it was not, and that Mary was vested with the title on the death of the testator, and that acting upon that assumption, she during the seven years should assume to a lien or mortgage this real estate, and die before the expiration of the seven years; if this clause is upheld, would not Lydia Anna Staats be in a position to claim a devolution of this property to her, and thus defeat the conveyance made by Mary ? We see no aspect'of this provision of the will in which we can hold that there is not an illegal suspension of the power of alienation, and the vesting of the estate, real and personal, sought to be devised and bequeathed by this clause in the will, and must concur with the trial judge in holding it void.

It is quite clear that the word “bequeathed” as used in this clause, as applied to both real and personal, is used without regard to its technical signification, but that could not defeat the manifest intention of the testator, had there been no illegal suspension of vesting or alienation of the property sought to be passed under the will.

We have carefully read the case and examined the very elaborate brief, furnished by the respondent, and all of the appellants, and fully concur in all the conclusions of fact, or law of the learned trial judge, except as to second disposing clause of the will of .the testator.

The decree should be reversed so far as it declares the bequests in that provision void, and in all other respects affirmed, with costs of the estate to the appellant Barnabas E. Staats, and as to all the other parties, the appeals be dismissed, and the decree affirmed without costs, to either party, as against the other.  