Opinion
September Term, 1902.
Joseph A. Kellogg, Stephen Brown and Louis M. Brown, for the appellant J. Edward Howland.
Edgar Hull, for the appellant Fred D. Howland.
Edgar T. Brackett and A.D. Wait, for the respondents Grenville M. Ingalsbe and John E. Parry as executors.
L.H. Northup, special guardian, and W.L. Sawyer, for infant respondents Amasa W. Howland and others.
By section 2 of the Personal Property Law (Laws of 1897, chap. 417) it is provided: "The absolute ownership of personal property shall not be suspended by any limitation or condition, for a longer period than during the continuance and until the termination of not more than two lives in being at the date of the instrument containing such limitation or condition; or, if such instrument be a will, for not more than two lives in being at the death of the testator; in other respects limitations of future or contingent interests in personal property are subject to the rules prescribed in relation to future estates in real property." The will in question is sui generis. No case is cited where the intent of the testator is sought to be expressed in similar language. The language here used, however, is clear and the intent which must control this decision seems unmistakable. There is grave doubt in my mind whether this provision be not intended for grandchildren born after the testator's death. The will assumes to provide for the children of J. Edward Howland who had no children living either at the time of the making of the will or at the death of the testator. But grant for the argument that only those grandchildren living at the death of the testator are the intended beneficiaries. There were three grandchildren then living. By the terms of the will no absolute ownership in any part of that property is given to any grandchild until that grandchild reaches the age of twenty-one years. Even though the living grandchildren take a vested estate at the death of the testator it is concededly liable to be divested. The term "absolute ownership" hardly needs definition. An ownership liable to be divested by any contingency arising under the instrument creating the ownership is not absolute. Any two of those grandchildren might die and still the ownership of the property be undetermined. Giving to the will the most favorable construction possible, and assuming the bequests to be several, upon the death of any one, the share that was to be his if he reached twenty-one years of age goes to the survivors only on condition that they reach the age of twenty-one. Here lies the distinction between this case and the case of Everitt v. Everitt ( 29 N.Y. 39). In that case it was held that, under the language used, upon the death of the beneficiary his share passed absolutely to the survivors, and upon that construction only was the will upheld. The provisions of this will giving the share of a grandchild who should die before reaching twenty-one to those survivors only who reached that age would seem to preclude the construction which alone saved the will in the case cited and to bring this will within the condemnation of the reasoning of the learned judge in that case. It is hardly necessary to call attention to the difference between the rule governing real property and that governing personal property. The right to suspend the power of alienation of real property may continue through two lives and a minority. The absolute ownership of personal property can be suspended only for two lives. The rules of law governing the construction of wills are not questioned by counsel; the sole contention is over the interpretation of the language used. The language to my mind expresses a clear intent in the execution of which the absolute ownership of personal property may be suspended beyond two lives. This the statute forbids. The decree, therefore, must be reversed, and this provision of the will in so far as it assumes to dispose of personal property should be declared invalid.
All concurred.
Decree of the surrogate so far as appealed from reversed, with costs to appellant from the estate, and the 5th provision of the will declared invalid. Order to be settled by SMITH, J.