
    Alma L. Wells, Respondent, v. Grant Squires and George A. Wells, as Executors, etc., of Henry M. Wells, Deceased, and Others, Appellants.
    First Department,
    February 8, 1907.
    Will — when absolute ownership of personal property not suspended.
    There can be no suspension of absolute ownership of personal property when there are persons inbeing who unitedly can convey an absolute title.
    The mere creation, of a trust does not ipso facto suspend the power of sale.
    Thus, when a will bequeaths the residuary .estate in trust to pay over annuities to each of three beneficiaries named during their natural lives, and the payment of annuities is not limited to payment out of the income, hut payment may he made out of the principal if necessary, there is no suspension of absolute ownership obnoxious to the statute.
    The power of such beneficiaries to convey absolute title by uniting with the remaindermen and trustee is not prohibited by section 3 of the Personal Prop • erty Law forbidding the assignment by a beneficiary of the right to enforce a trust of personal property, as that section is limited to cases where the trust is to receive the income and apply it to the use of any person.
    Appeal by the defendants, Grant Squires and another, as executors, etc., and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 17th day of September, 1906, upon'the decision -of the court rendered after a trial at the Hew York Special. Term.
    
      John J. Healey, Jr., for the appellants Wells.
    
      Edward Bruce Hill, for the- executors and Eliza L. Stone, appellants.
    
      Yincent P. Donihee, for the respondent.
   Scott, J.:

This action calls in question the validity of the 6tli article of the will of Henry M. Wells, deceased, and also the 3d article of the codicil to the will.

The 6th article of the will reads as follows : “I give, devise and bequeath unto Grant Squires, in trust, all the rest, residue and remainder of my estate, to the following uses and purposes: (l)-To pay over therefrom unto my wife,- Alma L. Wells, the sum of Twenty-one hundred dollars annually, in monthly payments of one hundred and seventy-five dollars eacli, during the term of hér natural life (2) To pay over therefrom unto my cousin, Eliza L. Stone of Greenfield, Massachusetts, the sum of three hundred and sixty, dollars annually, in monthly payments of thirty dollars each, during the term of her natural life. (3) Tt> pay over therefrom unto my cousin, Helen A. Wells of Saratoga Springs, Hew York, the sum of two hundred and forty dollars annually, in monthly payments of twenty dollars each, during the term of her natural life, it being expressly understood and agreed that the foregoing provision for my wife shall be a first charge upon both principal and income of my estate, and is in lieu of her dower, thirds and exemptions.”

The 3d article of the codicil increases the sum to be paid to the wife annually, and makes provision for the payment of the admission fee for Eliza L. Stone in case she should be received into a home for the care of aged women, but otherwise does not alter the provisions of the will.

The plaintiff asserts that the article and codicil are invalid and void because they unlawfully suspend the absolute ownership of personal property, of which alone the estate consists. It is observable that the direction for the payment of the annuities is not limited to their payment out of the income. Indeed the word “ income ” or “ rents and profits ” are not to be found in either article, except where the wife’s annuity is made a first charge upon the principal and income. A gross sum is given t.o the trustee, and out of that sum, not alone out of its income, are the annuities to be paid. In other words, if necessary, the principal is to be used, and it appears that it will be necessary to use it.

It is perfectly well settled that there can be no suspension of absolute ownership when there are persons in being who can conVey an absolute title. The mere creation of a trust .does not'ipso facto suspend the power of alienation, (Robert v. Corning, 89 N. Y. 225; Williams v. Montgomery, 148 id. 519.)

If then there are persons in being who can, unitedly, give a pen feet title, there is no suspension of alienation. The plaintiff’s contention is that the title cannot be transferred, because the annuitants could not lawfully transfer their interests. This contention cannot be sustained. Tlie prohibition against the assignment by a beneficiary of the right to enforce the 'performance, of a trust of personal property is limited to cases where the trust is one to receive the income and apply it to the use of any person. The statute expressly provides that the right and interest of the beneficiary of any other trust in personal property may be transferred.” (Pers. Prop. Law [Laws of 1897, chap. 417], § 3, as amd. by Laws of 1903, chap. 87.) The trust in the present case is distinctly riot a trust to receive the income and apply it to the use of any person, and cannot be construed as such by any known rule of construction. Consequently the-interests of the beneficiaries are alienable and do not suspend the absolute ownership of the-fund. (Kane v. Gott, 7 Paige, 521; 24 Wend. 641.) The annuitants, acting in conjunction with the trustee, could convey the estate- to the remainderman, or they, with the remainderman,- could convey to a third person. And if the .annuitants and the remainderman united in an assignment, the trustee would ‘be obliged to convey to the assignee, (Coster v. Lorillard, 14 Wend. 265.) Mo other objections to the validityof the will and codicil have been suggested and none present themselves to us.

-It follows that the judgment appealed from must be reversed, without costs, and judgment entered in favor of defendants, declaring that the provisions' of article 6 of said will as modified -by article 3 of the codicil thereto are valid' and" effectual dispositions by the testator of liis residuary estate.

Patterson, P. J., McLaughlin, Houghton and Lambert, JJ., concurred. - z

Judgment reversed and judgment ordered as directed in opinion. Settle order-on notice.  