
    Thomas J. Casey, Appellant, v. William H. Casey and Others, Respondents.
    Third Department,
    March 4, 1914.
    Trust—unlawful suspension of power of alienation — decedent’s estate — when administration not necessary — action to declare valid portions of trust and for payment of remainder to next of kin.
    An agreement under which a decedent gave to his son a certain sum of money, on condition that after paying all the debts and funeral expenses of the decedent, and paying to a daughter a certain sum, he should hold the balance for the lives of six children of the decedent for the benefit of any one of them who should become sick, creates a valid trust, except as to the last provision which unlawfully suspends the power of alienation.
    No administration of the estate was necessary under the circumstances, and an action was properly brought by one of the next of kin for the purpose of declaring the trust as far as it was valid, and for an accounting and payment of the balance to the next of kin..
    Appeal by the plaintiff, Thomas J. Oasey, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Albany on the 30th day of April, 1913, upon the dismissal of the complaint by direction of the court at'the close of plaintiff’s case.
    
      H. C. Grupe, for the appellant.
    
      William L. Visscher, for the respondents.
   Smith, P. J.:

Upon the 26th day of January, 1911, John B. Casey died in the city of Albany. He left surviving as his heirs at law and next of kin a son, William H. Casey; a daughter, Nellie L. Casey, plaintiff, Thomas J. Casey, and three other childraen. Prior to his death, while he was in his last sickness, he gave to his son William H. Casey a sum of money amounting to about, $1,300 or $1,400, under an agreement that the said William H. Casey, after paying all the debts and funeral expenses of the said John B. Casey, would pay to the daughter, Nellie Casey, the sum of $500, and the balance he was to hold for any one of the children who should be sick. This plaintiff brought this action, alleging that the said moneys were given to the defendant to pay to Nellie Casey the sum of $500, and the balance to the next of kin, including the plaintiff. Upon the trial the complaint was dismissed, and from the judgment entered this appeal has been taken.

It is settled law that one who accepts from a party a gift before death upon promise to make certain disposition thereafter, is deemed to hold such property in trust for the purpose of making such disposition after the death of the testator. (Goldsmith v. Goldsmith, 145 N. Y. 313.) As far, therefore, as these trusts created were valid trusts, defendant is under obligation to execute them. The trust as to the sick benefits, that the defendant was to hold the balance of the property for the benefit of those of the children who were sick, is an illegal trust, as not depending upon lives. It would operate to suspend the power of alienation of the fund beyond the lives of two persons in being, contrary to the statute. (See Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 11.) The trust for the payment of debts and funeral expenses is not an assignment for the benefit of creditors. It does not appear that there were any debts at the time the assignment was made. The debts which were to be paid were not those then existing, but those that should exist after the death of the assignor. This was not property of which the deceased died possessed, and, therefore, the administrator was not entitled thereto. No reason is suggested why such a trust cannot be created, and'if there be any defect in the manner of its creation the court will imply a trust for the purpose of preventing fraud, as was held in the Goldsmith Case (supra). The trust for the payment to Nellie of $500 seems to be unquestioned.

With the trust for the payment to the daughter established, and with the trust for the payment of debts and funeral expenses held valid, and the trust for the sick benefit held illegal, there should be found an implied trust for the payment of the balance to the next of kin of the assignor. This property was never intended to be given to the defendant for his personal use, and the invalidity of part of the trust for which .it was given him will not operate to make effectual a gift which was never intended. To that extent the gift will be deemed to have failed, and the title revert to the assignor or to his next of kin, who are his representatives. No administration is necessary, because a valid trust has been created to accomplish all the purposes of administration. This action, therefore, is properly brought by one of the next of kin for the purpose of declaring the trust, as far as the same may be, valid, and for an accounting and payment of the balance to the next of kin. The dismissal of the complaint was, therefore, erroneous, and the judgment must be reversed. Inasmuch, however, as the defendants have not presented their evidence, a new trial should be ordered.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

All concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event.  