Post v. Bruere — 127 A.D. 250

Majority

p. 250

Peter K. Post, Jr., Respondent, v. Joseph H. Bruere, as Executor, etc., of Peter K. Post, Deceased, and William B. Davenport, as Administrator, etc., of Minerva W. Post, Deceased, Appellants, Impleaded with Frederick H. Post and Others, Defendants.

Second Department,

June 5,1908.

Headnote

Will construed—when absolute ownership of personal property not unlawfully suspended—several trusts from one fund.

A will placing personal property in trust for the benefit of the testator’s wifé for life or widowhood, after her death or remarriage the income to he paid to two sons equally during their natural lives, and at their death the corpus to he. divided, or on the death of either son, then one-half of the corpus to be divided share and share alike among the children of said sons then living, does not suspend the absolute ownership of personal property for more than two lives in' being. This, because there would be a distribution of one-half of the principal on the death of each son, so that the absolute .ownership of any part of the trust fund is suspended only for the life of the widow and a son.

It is not necessary that a testator actually sever a trust 'fund where several trusts are carved out of it. It suffices that each trust be made distinct, and each will he considered alone on the question of illegal suspension.

Appeal by the defendants, Joseph II. Bruere, as executor, etc., and another, from a judgment of the Supreme Court in favor of the' plaintiff, entered in the office of the clerk of the county o.f Kings' on the 16th day of April, 1907, upon the decision of the court rendered after a trial at the'Kings County Special Term.

The judgment appealed from adjudged the third clause of the will of Peter K. Post void for. suspending the absolute power of ownership of personal property for more than two lives in being at

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the death of the testator, against the prohibition of the Personal Property Law (sec. 2, ch. 417, L. 1897).

The said clause is as follows :

“ Third. I do direct my said executor to invest the sum of Ten Thousand Dollars for the use and benefit of my wife during her natural life and widowhood the interest thereon to be paid tó her semi-annually until her death or remarriage, after her death or remarriage, I do direct that said '.interest shall be paid ■ to my sons Peter IL Post, Jr., and .Charles E. Post semi-annually share and share alike,'during their natural life and at their death I do direct my said executor to divide the said principal sum of Ten Thousand Dollars, or on the death of either of said sons then the one-half of the said Ten Thousand Dollars share and share alike among the children of said sons then living.”

Samuel Keeler, for the appellant Bruere.

R. M. Cahoone [Frederick H. Chase: with him on the brief], for the appellant Davenport.

Frederick C. Tanner, B. E. Valentine, Walter H. Cragg and Joseph J. Hood, for the respondents.

The third clause of the will leaves $10,000 in trust to the- executors to pay the interest thereon (1) to the widow for life, (2) upon her death to the two sons “share and share alike”, and (3) upon the death of each son to divide one half of the principal sum among his children. Nothing different to this can be spelled out of it unless the words, “ or on the death of either of said sons then the one-half of the said ten thousand dollars ”, be ignored and given no effect in the interpretation, and that cannot be permitted. The meaning is that the income is to be paid to the two son's during their natural lives, “ respectively ”, and upon the death of each one half of the principal to be divided. The language of the clause is not exact nor grammatical, but the meaning is unmistakable. The plural “their” is used,only to be followed by the singular “life”; which, coupled with the words which follow, “ or on the death of either ”, etc., shows that their respective lives were meant, and that there was to be a distribution of one half the principal on the death

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of each; and the same distinction and severance being kept up te the end (for the same idea runs through it all) each distribution is to be among the children of the son whose death caused such distribution. Thus interpreted, the absolute ownership is not suspended for the continuance of more than two lives in being at the testator’s death, i. e., that of the widow and a son, in respect of any part of the trust fund. It is not necessary that a testator actually sever the trust fund in the case of several trusts carved out of such fund. It suffices that each trust be made distinct, and each will be considered ' alone on the question of illegal suspension (Savage v. Burnham, 17 N. Y. 561 ; Monarque v. Monarque, 80 id. 320; Wells v. Wells, 88 id. 323; Vanderpoel v. Loew, 112 id. 167). Words in the opinion in Savage v. Burnham (p. 571) are exactly applicable here, viz.:

“ There is indeed but one fund, which is embraced in a single trust, but the interests carved out of it are entirely distinct. The trust itself is necessarily divisible as often as the beneficial dispositions of the will call for a division ”, etc. And on this ground the trust was upheld as not involving an illegal suspension of ownership, or of the power of alienation.

The judgment should be reversed.

Jenks, Hooker, Rich and Miller, JJ., concurred.

Judgment reversed on the law and the facts, and new trial granted, costs to abide the’final award of costs.

Cases cited

Savage v. Burnham 17 N. Y. 561 N.Y. p. 252