In re the probate of the will of Underhill — 6 Dem. Sur. 466

Majority

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Westchester County.

Hon. OWEN T. COFFIN, Surrogate.

August, 1888.

Will of Underhill. In the matter of the probate of the will of Edward B. Underhill, deceased.

Headnote

Testator’s will, after devising a lot of ground to the town of Y., for the purpose of erecting a town hall thereon, bequeathed a sum" of money toward such erection, ‘‘upon condition” that the town and people raise a sum specified, and apply it to the same purpose within three years from testator’s death.—Held,

1. That the town had no power, under the R. S., to take the legacy.

2. That the disposition was void, as suspending the ownership of personal property for a period (of three years) which might exceed two lives in being.

Testator’s will, after devising a lot of ground to the executors, in trust for the purpose of erecting a church edifice thereon for the use of any protestant Christian society which might first comply with certain conditions, bequeathed a sum of money to the executors, in trust, to apply the same toward such erection, “upon condition” that a specified sum. applicable to the like purpose, be paid to the treasurer of the society, within three years from testator’s death.—

Held, that the bequest was void under the statute against perpetuities, and that the constitution of a trust did not prevent this result.

On the occasion of the probate of the decedent’s will, the court was asked to construe certain provisions of the same, in so far as they purport to dispose of personal property, and to determine the validity of such provisions. They were embraced in the fifteenth and sixteenth clauses.

The fifteenth clause devised a lot of ground to the town of Yorktown for the purpose of erecting thereon a town hall for the uses of the town, upon condition

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that such building, particularly described, should be erected thereon within three years after the testator’s decease, and then proceeded as follows': “ And I further give and bequeath to said town of Yorktown the sum of three thousand dollars towards the erection of such town hall, upon the plot of ground above designated, provided, nevertheless, and this bequest and devise are upon condition that the said town of Yorktown and people shall raise the sum of fifteen hundred dollars and apply the same towards the erection and completion of such town hall, on such lot within three years after my decease.”

The sixteenth clause gave and devised to the executors, in trust, a certain other lot, describing it, “ for the purpose-' of erecting thereon a large, substantial and tasteful church, for the use of an Episcopalian, Presbyterian, Congregational, Baptist, or any other Christian society of the protestant faith, whichever may first comply with the conditions of this devise and bequest. And I also give and bequeath to my said executors, in trust, nevertheless, the sum of three thousand dollars, to be expended toward the erection of a church edifice upon the site and for the uses before specified. And I also give permission and right to such society to quarry granite or marble stone upon my land from either quarry then remaining unsold, to be used in the erection of the foundation or basement of such edifice, provided however, and the foregoing devise and bequest are hereby made upon the express condition, that within three years from the date of my decease, there shall have been first subscribed and paid in to its treasurer, by such society

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or its friends, for the purpose of the erection of such edifice, the sum of two thousand five hundred dollars, and if such sum, so subscribed and paid in and expended by such society, shall amount to the sum of three thousand dollars, or any sum in excess of said three thousand dollars, in such case the foregoing bequest of three thousand dollars shall be increased to the sum of three thousand five hundred dollars so to be paid by my executors.”

The application for the construction of the will, in this regard, was made, by Alfred M. Underhill, a residuary legatee named therein.

R. H. Underhill, for applicant.

Ab’m S. Underhill, for James Wood and others, executors.

Two objections are raised to the validity of the provisions of the fifteenth clause, in so far as relates to the bequest: First, that the town has no capacity to take a legacy; and second, because the absolute ownership of the amount of such legacy is illegally suspended.

It is provided by 1 R. S., 337, § 1, that each town, as a body corporate, has capacity to sue and be sued, to purchase and hold lands within its own limits, and to purchase and hold such personal property, as may be necessary to the exercise of corporate or administrative powers. Section 2 provides that no town shall possess or exercise any corporate powers, except such as shall be enumerated in that chapter (chap. xi). There does not appear to be any power granted to a town, by statute, to receive such a legacy as the testar tor sought to bequeath. .

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There can be no doubt that the second objection is well taken There is an illegal suspension of the absolute ownership of the amount of the legacy, as it is not limited upon a life, but upon a period of,time. Our statute (1 R S., 773, § 1) is explicit in declaring that the absolute ownership of the personal property shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance and until the termination of not more than two lives in being at the death of the testator.

To render such suspension valid, the bequest must be limited on a life or lives. It is difficult to conceive how a limitation of three years may not be longer than until the termination of the lives of any two beings in existence at the death of the testator. To render such future estates valid, they must be so limited that in every possible contingency, they will absolutely terminate at such period, or they will be held void. The authorities to this effect are abundant. It will be sufficient to cite Lewis on Perpetuities, 170; Hawley v. James ( 16 Wend., 62 ); Schettler v. Smith ( 41 N. Y., 334 ); Smith v. Edwards (88 id., 92).

The legacy • attempted to be given to aid in the erection of a church edifice, must be declared void, on the same ground. That a trust was created in regard to it, can make no difference (Smith v. Edwards, supra).

The result is that the sums, so attempted to be bequeathed, fall into the residuum provided for in the will.

Decree accordingly.