In re the Accounting of Bahrenburg

Headnote

Will — trust — validity of provision that on death of life tenant, if youngest living child shall have arrived or as soon as he does arrive at twenty-one, estate should be distributed amongst living children and issue of any that may be dead.

Matter of Bahrenburg, 214 App. Div. 792 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 12, 1925, which unanimously affirmed a decree of the Kings County Surrogate’s Court construing the will of John Bahrenburg, deceased, and directing distribution of his estate. It was claimed that the following provision of the will was violative of the statute against perpetuities and void: “ Upon the death of my said wife or upon my said wife marrying again, if any youngest child then living shall have arrived at the age of twenty-one years, or as soon after the happening of either of said events as my youngest child then living shall arrive at the age of twenty-one years I direct that my said trustees shall convey all the remaining part of my estate, hereinbefore conveyed to them, together with any income of the same remaining in their hands, share and share alike among my children then surviving and the issue of any child who may have then deceased, such issue taking the share to which such deceased child would be entitled if living.” The surrogate held that the term of the trust set up by the will was not violative of the statute against perpetuities; that the residuary estate should be distributed to and among the children of the testator living at the death of his widow, and the issue of any children who may have predeceased the testator

and the widow; and that the appellant, as the sole legatee and devisee of William H. Bahrenburg, a son who survived testator but died without issue before the death of the widow, was not entitled to share in the distribution.