Opinion
December 28, 1945.
Clark, Gagliardi Murphy for George E. Green and another, petitioners.
Insofar as related to real property situate within the State of New York, paragraphs "Second", "Third" and "Fourth" of the will of testatrix create a valid primary trust, the income of which is payable equally to the son and daughter of testatrix during their lives. The duration of the secondary trust may, under some contingencies, be measured by the life or lives of persons not in being at the death of testatrix, and therefore wholly or partially invalid. The primary trust for the benefit of the son and daughter of testatrix is valid and, being separable, may be sustained, and the secondary trust severed, and if necessary, rejected. ( Oliver v. Wells, 254 N.Y. 451; Looram v. Looram, 269 N.Y. 296; Matter of Horner, 237 N.Y. 489; Matter of Trevor, 239 N.Y. 6.)
The test as to the validity of a trust is not whether under some circumstances the trust may be valid. A future estate, in order to be valid, must be so limited that in every possible contingency it will absolutely terminate at the end of the prescribed period. ( Schettler v. Smith, 41 N.Y. 328; Matter of Mount, 185 N.Y. 162.) Since both children of testatrix are still alive and all living grandchildren of the testatrix were in being at her death, any question as to the validity of any secondary trust is presently academic. The court will not undertake to determine academic or abstract questions. ( Matter of Mount, supra.) It is accordingly unnecessary to determine at this time whether the dominant purpose of testatrix was the creation of trusts divisible into separate shares measured by the lives of her son and daughter, and, in the case of the secondary trust or trusts, by the lives of the issue of the son and daughter of testatrix.
Settle decree construing the will accordingly and appointing the proposed successor trustee upon its duly qualifying according to law. The decree shall contain an appropriate provision permitting such trustee to act as such only until the death of the son or daughter of testatrix.