In re Bray

David White, of the county of Niagara, died October 29, 1902 leaving a last will and testament. In the first item, after a legacy to the wife of his brother Patsey, lie provided: “ I give and bequeath to my brother, Patsey White, the pse of my house and seventeen acres of land lying on the extension of Mill Street, in the town of Boyalton, until the last of my children shall become of age. Then the propérty shall be sold and divided equally between iny children, share and share alike.” " ■

The testator left four minor children, his only heirs at law. The land devised was sold by proceedings in the" Surrogate’s Court to pay the debts of the testator, and after paying the same there was a surplus which came into the hands of the executor and was included among the assets for distribution upon the judicial settlement of his account. The surrogate in construing the provision of the will , quoted for the purpose of decreeing distribution has determined that the division of the property of the testator is suspended during the lives of the four minor children, which would be an unlawful suspension, and by his decree has directed distribution of this surplus to the guardians of the respective infants.

We cannot concur in his decision. The testator did not create any trust in his brother. He only permitted him to enjoy the use of the property for a designated time. The primary scheme of the will, apparently, was to provide for his children, and- he accomplished that purpose by vesting the title in them absolutely, but not to be enjoyed in possession until the youngest child attained his

There was no suspension of the power of alienation. “ The absolute power of alienation is suspended, when there are no persons in being by whom an absolute fee in possession can be conveyed.” (Real Prop. Law, § 32.) There are persons in being who can convey the property devised by the testator. Patsey White, who had the “use, and the children in whom the fee was vested, could pass an indefeasible title at any time by joining in a conveyance of the premises, and immediate possession of the premises could be given. The remainder was not contingent, but vested; and the construction which permits this will be upheld where it can be consistently done. {Hersee v. Simpson, 154 N. Y. 496 ; Miller v. Gilbert, 144 id. 68.)

If one of the children died his title .would pass by descent to his heirs at law, even though the date of possession was not reached.

The distinction between this case and others which have been held to offend' against the Statute of Perpetuities is that in that class of cases a trust was created and the estate did not vest, as in Haynes v. Sherman ( 117 N. Y. 433 ), while here the devisees -took the title immediately upon the death of their devisor, but the enjoyment of it, was postponed.

The decree, so far as appealed from, should be reversed, with costs to appellant payable from the fund,.and,the proceeding remitted to the Surrogate’s Court of Niagara county to correct its decree in compliance with this opinion.

All concurred.

Decree, so far as appealed from, reversed, with costs to the appellant payable out of the fund, and proceeding remitted to \he Surrogate’s Court of Niagara, county to correct its decree in compliance . with opinion.