
    Eliza Bird et al., Resp’ts, v. Samuel Pickford et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed August, 1893.)
    
    Will—Suspension of power of alienation.
    By testator’s will he gave the residue of his estate to his executors in trust to divide the income equally between his daughter-in-law and two cousins during their natural lives, and provided that if said cousins should die before the daughter-in-law, the corpus of the esta'e should go to the daughter-in-law, her heirs and assigns; but if the daughter-in-law should die first, the corpus was given to such persons as she should designate by will. Held, that the trust was invalid, as there might be an illegal suspension of the power of alienation if the daughter-in-law should die first and leave no will.
    Appeal from judgment in favor of plaintiffs, sustaining the validity of certain portions of the last will of William Baltz, deceased.
    
      Jehiel T. Hurd, for app’lts; John R. Tresidder, for resp’ts.
   Barnard, P. J.

The residuary clauses contained in the will and codicil of William Baltz, deceased, are as follows:

Thirdly. I give and devise all the rest of my estate, real and personal, to my executors hereinafter named in trust, nevertheless, to invest and keep the same invested, and divide the net income arising therefrom equally among my said daughter-in-law, Ophelia Baltz, and my said cousins, Rachel and Addie Yan Gilder, the survivors or survivor of them,'during their natural lives.
Fourthly. If my said cousins, Rachel and Addie Yan Gilder, should die before my said daughter-in-law Ophelia Baltz, then and in that event I give and devise the corpus of said trust estate to the said Ophelia, her heirs and assigns forever. But if my said daughter-in-law, Ophelia Baltz. should died before my said cousins, Rachel and Addie Yan Gilder, then and in that •event I give and devise the corpus of said trust estate to such person or persons as my daughter-in-law Qphelia Baltz, may designate in her last will and testament. ”

The three persons named in these clauses all survived the testator :and the question presented is whether there is an illegal suspension of the power of alienation created by these clauses.

It seems clear that the absolute power of alienation may be •suspended for more than two lives in being at the death of testator. If Ophelia Baltz die first and leave no will, the estate would still continue in trust during the lives of Rachel 0. Yan Gilder and her sister Addie E. Yan Gilder. The only escape from this •conclusion is to hold that if Ophelia die first and without exercising the power of appointment, that the interest of the Yan Gilder sisters ceases and the estate at once, upon Ophelia’s death, goes to the testator’s heirs-at-law as in case of intestacy. This would defeat the purpose of the will, which was to give the income of the tr.ust fund to the three legatees, or survivor of them, during their natural lives. It was not within the purpose of the testator to divide the estate when Ophelia died, whether she made a will disposing of the body of the trust fund or not. A valid trust must be so drawn that in every possible contingency they will absolutely terminate within the prescribed period of two lives. Schettler v. Smith, 41 N. Y., 328; Haynes v. Sherman, 117 id., 433; 27 St. Rep., 254.

If the scheme of the will in question is carried out, there may be an illegal suspension if Ophelia die first and leave a will. The income would go to the Yan Gilder sisters and to the survivor during their lives, and it would be only after the death of the last of the three lives the property could be divided. The trustees would hold the fund until the last of the three lives had passed away.

The judgment should be reversed and judgment ordered that the clauses in question create an illegal suspension, and that the fund go to the next of kin and heirs-at-law as in cases of intestacy.

Dykman and Pratt, JJ., concur.  