Farmers' Loan & Trust Co. v. Bostwick — 120 A.D. 271

Majority

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The Farmers' Loan and Trust Company, as Trustee under Two Certain Deeds of Trust Made by Jabez A. Bostwick, Bearing Date Respectively January 23, 1892, and February 5, 1892, Respondent, v. Helen C. Bostwick, Individually and as Executrix, etc., of Jabez A. Bostwick, Deceased, and Others, Respondents, Impleaded with Albert C. Bostwick and Others, Appellants.

First Department,

June 21, 1907.

Headnote

See head note in New York Life Insurance & Trust Co. V. Cary (ante, p. 264)

Appeal by the defendants Albert C. Bostwiclc and another from certain parts, and by the defendant Fannie E. B. Francis from the whole of a judgment of the Supreme Court in favor of the ¡ilaintiff and certain of the defendants, entered in the office of the clerk of

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the. county of New York on the 1st day of March, 1907, upon-the decision of the court rendered after a trial at the New York" Special Term:

Egerton L. Winthrop, Jr., for the appellant Francis.

Richard L. Sweezy, for the.appellant Bostwick.

William Pierrepont Williams, for the appellant Cary.

James F. Horan, for the plaintiff, respondent.

George L. Shearer, for the respondent United States Trust Company of New York.

W. T. Emmet, for the respondent New York Life Insurance and Trust Company.

Ward, B. Chamberlin, for the respondent Helen C. Bostwick.

Charles F. Buckingham, guardian ad litem, for the respondents A. C. Bostwick, Jr., and others.

Frank L. Polk, guardian ad litem, for the respondents Carstairs and others.

The questions presented by this appeal are in general similar' to' those presented and discussed in New York Life Insurance & Trust Co. v. Cary ( 120 App. Div. 264 ), herewith decided, and are'' controlled by the same considerations. The only difference, consists in the fact that by one of the trust deeds involved in the present case, Mir. Bostwick undertakes to extend the trust, and consequently suspend the absolute ownership of the. personal property constituting the trust fund during the lives of his daughter Nellie Bostwick Morrell, and of her husband Francis L. Morrell, if he should survive her. Having thus suspended the absolute owner-. ship: of the property for the longest period permitted by the statute,^[1] it was incompetent to create a f urther suspension during., the lifetime of Mrs. Bostwick. Therefore, ás to the property constituting

* See 1 E. S. 773, §1; revised in Pers. Prop. Law (Laws of 1897, chap. 417), §2.—(Rep. ,

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this trust fund, it milst be held that Jabez A. Bostwick died, intestate. The judgment will be modified accordingly, and as-modified affirmed, with costs in this court to all parties separately appearing, payable out of the fund.

McLaughlin and Laughlin, JJ., concurred; Patterson, P. J., and. Houghton, J., dissented.

Judgment modified as directed in opinion, and, as modified affirmed, with costs to all parties separately appearing, payable out of the fund.,

Cases cited

New York Life Insurance & Trust Co. v. Cary 120 App. Div. 264 N.Y. App. Div. 1907-06-21 p. 272