
    
      In re Wood’s Estate.
    
      (Supreme Court, General Term, First Department.
    
    December 2, 1889.)
    Wills—Construction—Perpetuities.
    Testator, by bis will, made Ms three executors trustees to create and maintain a benevolent institute, directing them to vest in it all his property not otherwise disposed of, and to apply to the legislature for a charter of incorporation; “and, in case said charter shall not be obtained within the life of the longest liver of my executors, ” then over to the city of New York, to be strictly devoted to the charitable uses declared in the will. Held, that both the primary and substituted gifts were void because limited on three lives, in violation of the statute against perpetuities.
    Appeal from surrogate’s court, New York county.
    Petition by the mayor, aldermen, and commonalty of the city of New York to compel an accounting by Alfred L. Simonson and another, executors, etc., of Samuel Wood, deceased. The surrogate made an order denying the prayer of the petition, and the petitioners appeal. Code Civil Proc. N. Y. §§ 2726, 2727, provides that “a person interested in the estate or fund” may present a petition praying that an executor or administrator be compelled to account.
    Argued before Van Brunt, P. J., and Bartlett, J.
    
      William H. Clark, (B. E. Valentine, of counsel,) for appellants. Edward 8chenek, for respondents.
   Bartlett, J.

The appellants failed in their application because, in the opinion of the learned surrogate, they were not persons interested in the estate or fund in the hands of the executors, within the meaning of the Code; and the only question presented by this appeal is whether that view is correct. We think it is. The claim of the city to any interest in the estate of the testator rests upon the second subdivision of the seventh article of the will, which seeks to establish a trust in three executors, for purposes which are thus stated: “To create, endow, and forever maintain an institution in the city of New York, to be called ‘The Samuel Wood Benevolent Institute,’ and to vest in said institute all of my property and estate not otherwise disposed of, and for the use and purposes thereof as the same are hereinafter declared; and to the end that the said ‘ The Samuel Wood Benevolent Institute ’ may, by the laws of this state, be capable of taking and holding real estate and other gifts and donations to its use, I hereby direct and order my executors, as soon as may be after my decease, to apply to the legislature of this state for an act of incorporation incorporating the said ‘The Samuel Wood Benevolent Institute,' with power to take and hold real estate for the purposes of said institute, and to prosecute said application until a charter shall be obtained conformably to this my will, and to be governed as hereinafter provided; and, in case said charter shall not be obtained within the life of the longest liver of my executors, I give, devise, and bequeath the said rest, residue, and remainder of my estate, real and personal, to the mayor, aldermen, and commonalty of the city of New York, in their corporate capacity, to be strictly devoted by the city of New York to the charitable uses in this my will declared. ” The primary gift, for the establishment of the Samuel Wood Benevolent Institute, changed by the codicil to a college of music, was invalid. So far as the real estate was concerned, the power of alienation was suspended for more than two lives. So far as the personal 'property was concerned, the absolute ownership was suspended for more than two lives. In neither case was the period of suspension limited by two lives in being, but, on the contrary, the testator contemplated that it might last through the lives of his three executors. But, notwithstanding that the primary gift must be deemed void, the learned counsel for the appellants insists that the substituted gift to the city of Mew York is good; and he refers to Cruikshank v. Home for the Friendless, 113 N. Y. 337, 21 N. E. Rep. 64, as a case in which a somewhat similar primary devise was adjudged void, while the alternative and substituted gifts were upheld. But in that case the testator plainly intended that the gifts over should take effect at once, if the prior disposition of his prop-arty for the benefit of a non-existent corporation was invalid in law. In the will now under consideration, however, the language upon which the substituted gift is dependent manifests a clear intention that the mayor, aldermen, and commonalty of the city of Mew York shall receive nothing until the death ■of the last of the testator’s three executors. “In case said charter shall not be obtained within the life of the longest liver of my executors” is the phraseology. The suspension of the absolute ownership and power of alienation is thus attached to the substituted gift itself, and operates to invalidate it, equally with the primary devise. The lurking doubt of the validity of the prior trust which influenced the testator in the case of Cruikshank v. Home for the Friendless, (see opinion of Finch, J.,) 113 N. Y. 350, 21 N. E. Rep. 64, does not appear to have existed in the mind of Mr. Wood. He contemplated possible and probable delay in the formation of such a corporation as he desired to have organized, but no legal objection to the testamentary disposition he attempted to make. He distinctly postponed his gift over to the city of Mew York until the expiration of three lives in being, and hence rendered ineffectual the only portion of his will under which the city could assert any interest to compel his executors to account. The order of the surrogate should be affirmed, with costs.  