Opinion
Argued January 17, 1908
Decided February 18, 1908
William P. Maloney and Edmund F. Harding for appellant. William A. Keener for Charles H. Young et al., as trustees, respondents.
Albert W. Ransom for Edith M. Barker, as executrix of George A. Barker, deceased, respondent.
Tarrant Putnam and James W. Hawes for Mary E. Leavitt, respondent.
I think it is plain that the interests of the testator's nephews and niece in his residuary estate vested in them at the time of his death. By the express terms of his will, in case of the death of his daughter, leaving no lawful issue her surviving, he gave, devised and bequeathed to each one-third of his residuary estate. The duration of the trust, which he created, was measured by the life of his daughter and, upon its termination, with no intervening marriage and birth of children, the gifts of the estate are made in absolute terms. The conditions of the test as to the vesting of a future estate in remainder were satisfied; inasmuch as there was an absolute gift to designated persons, then in existence, upon the termination of a precedent estate, which might only be defeated by the happening of a contingency provided for in the will. The contingency did not affect the vesting of the interests given; it was a possible event, provided for by the testator, which should operate to divest those interests. It was not a gift limited to take effect upon an uncertain event; it was a gift, which the uncertain event might chance to defeat.
The argument is made that the trust disposition in the will was not one of the express trusts, permitted to be created by our Statute of Uses and Trusts and, therefore, it should be executed as a power in trust. The Revised Statutes provided, (1 R.S. 729, sec. 55), for the creation of four express trusts; one of which was "to receive the rents and profits of real property and apply them to the use of any person during the life of that person, or for any shorter term, subject to the provisions of law relating thereto." They subjected the creation and limitation of future interests in personal property to the rules regulating future interests in lands. (1 R.S. 733, secs. 1, 2.) We need, therefore, only regard the trust as one concerning real property; for, if valid as such, it is valid as a trust of personalty. The point is taken, with respect to this trust, that, as it was a trust for the receipt and application of rents and income, which was not measured, for its duration, by the life of the beneficiary, but by the life of the testator's daughter, it was not within the statute. This is an attempt to narrow the construction and operation of the statutory provision which is not justified and is without support in authority; although in Downing v. Marshall, ( 23 N.Y. 366, 377), it was suggested. It is not essential to the validity of the trust that its continuance should be dependent upon the life of the beneficiary. In this case, the application of the income is to the beneficiaries named, during the life of the daughter. The trust cannot exceed the period limited for trusts, which suspend the power of alienation. It must end with Catherine Bell's death; or it may have a shorter term, if she should recover, marry and have a child. But what question there may have been has been set at rest by decisions of this court. In Manice v. Manice, ( 43 N.Y. 313, 386), the trust was to pay, annually, a certain sum to the testator's widow, during her life, and, likewise, a certain sum to each of his five children, "during the lifetime of his wife." The trust was declared valid. It was said that "the trust is limited for its duration to the life of the widow and, as to each beneficiary, the beneficial interest is for his life, or a shorter term." In Crooke v. County of Kings, ( 97 N.Y. 421), the trust was for the life of the trustee, to apply the income to the support of the nine children of the testatrix. The duration of the trust was for a single life and it was held that "a trust dependent upon lives, as beneficial objects, need not, necessarily, be dependent upon the same lives for its duration." In Bailey v. Bailey, ( 97 N.Y. 460), the testator devised the residue of his real and personal estate to his executor, in trust to receive the rents and income thereof and to divide the same equally between four beneficiaries, during the lives of two other designated persons. The trust was held to be valid; disapproving of the construction of the statute suggested in Downing v. Marshall. It was held that "the limitation provided is a limitation of time and not a personal one" and that there was no violation of the statute, where the continuance of the trust depended upon the lives of strangers to the trust and not upon those of the beneficiaries. The conclusion was rested upon a consideration of this subdivision 3 of section 55, in connection with that one of the rules referred to in the subdivision, which limited the period of the suspension of the power of alienation to two lives in being at the creation of the estate. "To bring a case", it was said, "within the rule provided for, it is not required, we think, that the lives during which the power of alienation is suspended should be those of the beneficiaries." The case of Crooke v. County of Kings, ( supra), was considered to have finally disposed of the question. In Cochrane v. Schell, ( 140 N.Y. 516), the residuary estate, real and personal, was given to executors, in trust to pay certain annuities from the rents and income received, during the life of the testator's daughter, and, upon her death, to convey the estate to his grandchildren, then living, or their issue. The annuitants were four of the grandchildren. The trust was upheld and it was observed that dispositions by way of trust, within the limitations against perpetuities, will be sustained, if they can, fairly, be brought within the spirit, if not the literal language, of the statute.
It is argued that the assignment to the plaintiff of the income was valid; inasmuch as there was no express inhibition in the Revised Statutes against the alienation of the income of a trust in personal property. This is a question, which should be regarded as having been settled adversely to any such contention.
In Graff v. Bonnett, ( 31 N.Y. 9), the question was considered and decided, with such effect as to justify the acceptance of the principle of the decision by later cases. In that case, the executors were given a fund, upon the trust to pay an annuity during the life of the annuitant named. The question was as to the alienability of the annuitant's interest by his judgment debtor. The Revised Statutes, (1 R.S. 730, sec. 63), provided that "no person beneficially interested in a trust for the receipt of rents and profits of lands can assign, or in any manner dispose of, such interest." It was determined that the same rule should govern as to the inalienability of rents, profits and income, whether in trusts of real, or of personal, estates, and the determination was reached upon an application of the statutory provision that limitations of future, or contingent interests in personal property shall be subject to the statutory rules prescribed in relation to future estates in lands. (1 R.S. 773, secs. 1, 2.) This provision was construed as being, in effect, a legislative application of the same principles and policy to both classes of property. It was observed that "the argument to be derived from the general similarity of the legislative enactments in regard to both classes of property, from the similar, if not equal, mischiefs to be remedied, and from the general policy of the law, would authorize a Court of Equity * * * to apply the same rule to both."
In Lent v. Howard, ( 89 N.Y. 169, 181), following the authority of Graff v. Bonnett, it was held that the statutory prohibition against the assignment by beneficiaries of their interests in trusts for the receipt of rents and profits of lands applied, by force of other sections of the statute, to the interest of beneficiaries in similar trusts of personalty. In Cutting v. Cutting, ( 86 N.Y. 522, 545), it was held to be the duty of courts of justice to preserve an analogy between estates and interests in land and the income thereof and similar interests in personal property. In Cochrane v. Schell, ( 140 N.Y. 516, 534), where a trust to executors for the receipt of the rents and profits of lands and for the payment therefrom of annuities was sustained under the third subdivision of section 55, (1 R.S. 729), the interest of an annuitant was held to be inalienable, under the provision of section 63, (1 R.S. 730). Chief Judge ANDREWS remarked that "there is a manifest propriety in assimilating, so far as practicable, the rules governing trusts and limitations of real and personal property."
It is, further, the contention of the plaintiff that, inasmuch as the defendant Charles Barker, her assignor, did not contest her claim, nor appeal from the judgment, the trustees and the testator's other nephew and niece had no interest in the case, which entitled them to appeal to the Appellate Division. It is sufficient, upon that point, to say that the trustees had a substantial interest in the subject of the litigation. They were interested in preserving the income of the trust estate from any unlawful diversion to other objects. It was their duty to protect the estate and interests confided to them against any alienation thereof, which the law prohibited.
The views expressed lead to the conclusion that, in so far as the original judgment declared the share of Charles B. Barker in the remainder of the estate to have vested in him, it was correct and that the order of the Appellate Division erroneously modified it in that respect.
I advise that the order and judgment of the Appellate Division be modified, so that the same shall adjudge that Charles B. Barker took a vested and an alienable estate and interest in the share of the residuary estate of the testator, and as thus modified, that they be affirmed; without costs to any party.
CULLEN, Ch. J., HAIGHT, WERNER, HISCOCK and CHASE, JJ., concur; WILLARD BARTLETT, J., not sitting.
Ordered accordingly.