Opinion
Argued January 21, 1878
Decided February 5, 1878
Robt. Johnstone, for appellant.
E. Moore, for respondent.
Some of the trusts created by the will of the testator are claimed to be invalid and void, and the controversy here arises principally in regard to the construction to be placed upon portions of the fourth clause of the will. As to the first subdivision of the fourth clause it is urged that it suspends the power of alienation or ownership of the property for a period of more than two lives, and thus violates the Revised Statutes. (1 R.S., 723, § 15; id., 773, § 1.) The provisions referred to are perhaps somewhat complicated, but a careful examination of the phraseology employed will, I think, lead to the conclusion that there is no real ground for such an objection.
The whole estate is devised and bequeathed in trust, and by the fourth clause, if the three children of the testator survive him, the trustees are to divide the residue of the estate into three equal shares, one to be held in trust for each of said children during life; and upon the decease of the child who shall first die, the share is to go in fee to the lawful issue, if such there be, and if there be none then to be divided into two equal parts or sub-shares, one of which shall be held in trust for each of the surviving children during life, and at the death of the child who shall next die such parcel or sub-share shall go in fee to his or her lawful issue, and if there shall be no such issue then to the persons who, if the surviving child were dead, would be his heirs-at-law. A provision of the same character is made as to the child who shall next die, and one of the shares is to go to the lawful issue of the child first dying; and if none, then to the testator's heirs-at-law, and the other to the surviving child, and upon his or her death to vest absolutely as provided.
It must be borne in mind that the estate is divided into three separate shares, and each one of these shares is separately disposed of, and therefore the provision in question is not to be considered as if a disposition had been made of the whole estate as an entirety. This was the clear, unequivocal and plain import of the terms of the devise and the manifest intention of the testator, and no other interpretation can be placed upon the language employed without doing violence to its meaning. The authorities abundantly sustain devises and bequests in this form, and they are held to be valid in many of the reported cases. ( Everett v. Same, 29 N.Y., 39; Gilman v. Reddington, 24 id., 9; Tucker v. Bishop, 16 id., 402; Savage v. Burnham, 17 id., 561; Hoppock v. Tucker, 59 id., 202.)
Regarding the clause cited in this point of view, there was no valid suspension of the power of alienation or of ownership for a period beyond two lives. When the first death occurred of testator's children, who were beneficiaries, the share passed in fee under the will to her issue, and it then became vested in them absolutely upon the termination of a single life. If no issue survived, then one-half of her share would have gone to her brother and the other to her sister, who were surviving her for life, and upon the death of either of the survivors the sub-share would have vested as provided in the issue living or in the testator's heirs-at-law. Here would be a suspension for two lives only; first, the life of the child who died; and, second, the life of the one who succeeded to such child's share.
The share of the one who should be second to die would take a similar course, and under no circumstances which might occur, as the will provides, could there be more than two lives before it became absolutely vested. The alternative dispositions of the sub-shares, which depended upon the testator's children dying leaving no issue, did not, in my opinion, suspend the power of alienation beyond two lives in being in any contingency which might happen. By no possibility could this have occurred. The fact that a share was to be sub-divided at the death of the first child without issue, and each of them held in trust, does not alter the case.
A question is also presented as to the effect of the sixth subdivision of the fourth clause of the will, which provides for a partial accumulation during the minority of the children, and directs that certain sums named "shall be applied" to the education and support of said children during the period named, and after that period provides that the whole of the income shall "be paid over" to them. It is insisted that the trust is not within the provision of the statute. (1 R.S., 730, § 55, subd. 3.) And that the provision to pay is valid only when used as an equivalent to apply, and when used in any other sense is void, and as these words are used in opposition to each other the trust cannot be upheld. I am unable to discover that there is any want of harmony or any antagonism in the words referred to. They are substantially equivalent to each other, and whether the sums mentioned are "applied" or "paid over" for the benefit of the children can make but little difference, as the object is the same — the benefit of the children. They are to receive the avails and reap all advantages from the income under all circumstances. One phrase refers to the minority of the children, and the other applies when they have arrived at full age, but there is no real legal distinction between the two. This is not a shifting trust, and it cannot well be said that there is both an active and a passive trust in operation at the same time, and that they alternate. In Leggitt v. Perkins ( 2 N.Y., 297), a trust to receive rents and profits and pay them over to the beneficiary is held to be essentially an active trust in all particulars and within the provision of the Revised Statutes above cited. The trust in the case last cited, which is directly in point, was to pay over to the cestuis que trust; and although it was decided many years since, its authority has never been questioned.
The able argument and exhaustive briefs of the learned counsel for the appellant have been most carefully considered, but we fail to discover any legal ground of error upon the trial, and are of the opinion that the judgment was right and must be affirmed.
All concur, except ALLEN, J., absent.
Judgment affirmed.