Opinion
November, 1904.
Joseph Fettretch, for the plaintiffs.
Charles C. Peters, for the defendant.
It is seen from the quoted paragraph of the will that the testator gives to his executors in trust all the rest, residue and remainder of his entire estate, both real and personal, remaining after the specific devise and bequests first above mentioned. The will then provides that the business conducted by the testator and his sons in his lifetime should be carried on and the capital remain in the business until the youngest daughter Eva should attain the age of twenty-one years upon certain terms and conditions prescribed therein. Aside from the property and capital invested in the business the remainder of the personal estate was required to be invested by the executors and certain securities for investments were recommended. The real estate was directed to be rented. Out of the income of the trust estate, both real and personal, the direction is first to pay to the testator's wife, Mary Hagemeyer, the sum of $7,000 annually in every year during her natural life, commencing from the date of the decease of the testator. Provision is then made for the support, maintenance and education of the three minor daughters, for certain advancements in the event of marriage, and then for a division of the estate upon the youngest daughter Eva attaining the age of twenty-one years, at which time the whole estate was to be distributed, save such portion of either real or personal property, or both, as should be amply sufficient to produce an annual income of $7,000, to be paid to the wife during her life. There was not, therefore, a creation of new and independent estates. It was also provided that the share of the two younger children, Emma and Eva, should be retained by the executors and kept securely invested until the two younger daughters respectively attained the age of twenty-eight years, during which period each was to receive an income of $900 per annum, which was to be increased to $1,500 per annum in the event of the death of the wife prior to the expiration of the trust period. Upon their attaining the age of twenty-eight years the sum invested was to be paid over to such children absolutely. Upon the decease of the wife that portion of the estate set apart for the purpose of producing the annuity of $7,000 per annum was to be paid over and distributed to the two sons and five daughters equally, share and share alike, unless the wife died before the youngest child attained the age of twenty-eight years. The will in this respect provides "that if my said wife shall die before my youngest child attains the age of twenty-eight years the provisions hereinbefore contained as to the time of the payment of the respective shares of my children shall control the time of the payment of their shares upon this final distribution. The time when my youngest daughter Eva attains the age of twenty-one years or becomes twenty-one years of age, shall be construed in this will (in case of her decease during her minority) to mean the time when, if living, she would have attained that age." By the scheme of this will two divisions of the estate by the trustees were contemplated, one when the youngest child Eva became twenty-one years of age, in which event the distribution was to be absolute of all the property, save such as was necessary to produce the annuity to be paid to the widow and the shares of the two youngest children. The second division was to occur upon the death of the widow, and that distribution embraced the trust property which had been held by the executors for the purpose of producing the annual income payable to the widow, but both distributions were made dependent upon the arriving at age of the youngest child Eva, and by the express provision of the will such time was fixed and absolute as of a given date, namely, the 20th day of November, 1900. If Eva died during her minority the period of distribution was postponed to this date, as the will provided that the date of distribution in such event should be construed "to mean the time when, if living," she would have attained that age. It seems clear that the testator contemplated that his wife would survive the youngest daughter's coming of age, as he made provision for the distribution of his estate when the daughter should arrive at twenty-one, and also of the property in the trust provision for the wife's benefit upon her death, but each distribution was made to depend upon a particular period of time, not measured by any lives, for there could be, under the scheme of this will, no division of this trust estate prior to the 20th day of November, 1900, whether the widow was living or not. This is clearly made to appear in the exception which we have already quoted, following the direction to distribute the estate upon the death of the widow, and in express terms such distribution is controlled by the previous direction to distribute, which was dependent upon Eva's having attained her majority, or the arrival of the period when she would have attained it, if she had deceased. And as to the two younger children, if they had not then attained the age of twenty-eight years, no distribution could be made of their shares prior to such period. By the first direction to distribute, which contemplated the continued existence of the widow, the shares of the two younger children were to go into a trust fund, the title to which remained in the trustee, there to stay until they should respectively reach the age of twenty-eight years. So that the direction for distribution was in each event dependent upon years; first as to the elder children upon the lapse of time necessary to arrive at a period when Eva would become twenty-one, and upon the period when the two younger children would become twenty-eight years of age respectively. Then follows the construction which the testator required should be given to the will in this respect, which shows it to have been made to depend upon a fixed date, and not upon the lives of particular individuals or of any. And during that period of time the trust estate was to remain in the trustees. It seems plain, therefore, that the duration of these trust estates under either scheme of distribution, whether upon the arrival of Eva at her majority, prior to the death of the widow, or upon the death of the widow prior to such period, or upon the death of Eva before attaining her majority, the vesting of the estates in the beneficiaries is made to depend upon a term of years. Such trust provisions are, therefore, void as offending against the Statute of Perpetuities. (See 1 R.S. 723, §§ 14-16; Id. 773, §§ 1, 2; revised in Real Prop. Law [Laws of 1896, chap. 547], § 32, and Personal Prop. Law [Laws of 1897, chap. 417], § 2.) Upon this subject the authorities are so plain as to admit of no controversy. ( Haynes v. Sherman, 117 N.Y. 433; Jennings v. Jennings, 7 id. 547; Staples v. Hawes, 39 App. Div. 548; Brown v. Quintard, 177 N.Y. 75.)
Nor does the power of sale which was vested in the trustees of the trust estate cure the invalid provisions of the will. The power thus given is for purposes of distribution, and the proceeds of any sale were subject in all respects to the execution of the trusts. The will is, therefore, condemned, whether the trustees execute the power of sale or not, or whether the property used to carry out the terms of the trust provisions be real or personal. ( Brewer v. Brewer, 11 Hun, 147; affd. sub nom. Bremer v. Penniman, 72 N.Y. 603.) In no view, therefore, can the provisions of this will be sustained, and, reaching this conclusion, it necessarily follows that the plaintiffs are unable to convey a good title to the premises. The defendant is, therefore, entitled to judgment for the sum of $2,500, paid on the execution and delivery of the contract, with interest thereon from the 10th day of March, 1904, together with the further sum of $400, fees and expenses incurred in examining the title, together with the costs of this submission.
VAN BRUNT, P.J., PATTERSON, O'BRIEN and LAUGHLIN, JJ., concurred.
Judgment ordered for defendant for the sum of $2,500, with interest from March 10, 1904, together with the further sum of $400, fees and expenses, together with the costs of this submission.