In re the Will of Friend

The testator died on June 30, 1932. Four children, two daughters and two married sons, survived him. In his will (paragraph fourteenth) he directed his executors to divide his residuary estate into four equal parts. In four separate clauses of the same paragraph he then disposed of the four parts. In each of such clauses he provided that one share should be held in trust during the lifetime of the child named in that clause and the interest paid to such child and after the death of the life beneficiary leaving issue, the testator devised that share to such issue. In the contingency that the life beneficiary of any share died without issue, the testator made other disposition of that share. The validity of the testamentary disposition of the shares held in trust for the daughters is not challenged. Upon the death of each the share was devised absolutely to remaindermen. There is no suspension of the power of alienation of those shares beyond two fives in being at the death of the testator under any possible construction of the will or in any contingency. The questions presented upon this appeal concern only the validity of the testamentary disposition of the two shares held in trust for the benefit of the testator’s two sons.

The two clauses of the residuary paragraph of the will which dispose of the two shares of which the testator’s sons, Sol and Ike, were the fife beneficiaries are identical except for the name of the beneficiary. We quote plause “ a;”

Sol Friend died on June 2, 1933, without issue. His wife survived him. Ike Friend died eight days thereafter. Like his brother he left a wife but no issue him surviving. Under the terms of the will, the disposition of the remainder of the fund held in trust for each son depended upon alternative contingencies, which could be determined only upon the death of the life beneficiary. In one contingency — the death of the life tenant leaving issue — the fund would go absolutely to such issue. In such contingency there would be no suspension or restraint of the power of alienation beyond one life, and the disposition would be valid. Since neither son died leaving issue, we are concerned only with the limitation to take effect upon the alternative contin

In proceedings for the settlement of the account of the executors and for a construction of the will, the committee of one of the testator’s next of kin has challenged the validity of the provisions of the will for the benefit of the widows of the two sons. The sons were married to them at the time the testator executed the will, but it is said that at the death of the testator it was possible that either son might survive his wife and might then marry a woman not yet born at the death of the testator. In that event, a trust for the life of the son and thereafter for the life of his “ widow ” would not terminate upon the death of two persons in being at the death of the testator, if the term “ widow ” is broad enough to include not only the wife to whom the son was married at the death of the testator but any woman whom the son might marry thereafter. This court has said that a testamentary disposition which would in any possible contingency attempt to create such a trust would be invalid, for “ in determining the validity of limitation of estates * * * it is not sufficient that the estates attempted to be created may, by the happening of subsequent events, be terminated within the prescribed period, if such events might so happen that such estates might extend beyond such period.” (Schettler v. Smith, 41 N. Y. 328 , 334.) The Surrogate held, however, that the testator in this case intended that after the death of each son without issue, a part of the share held in trust for him should continue to be held in trust for his “ widow ” only if the wife of such beneficiary, who was known to the testator and was in the testator’s mind when he executed the will, survived her husband and that the will is misread if the word “ widow ” is given wider scope. We agree with the interpretation which, under the circumstances of this case, the Surrogate has given to the word “ widow.”

The question remains whether the provision of the will that the remaining one-half of the share held in trust for each son shall immediately, after his death without children, revert to and become part of the residuary estate is valid. Upon Sol’s death, one-half of the share held in trust for him was then added to the shares held in trust for the testator’s three surviving children. Under the terms of the will, the shares of the residuary estate held in trust for the two daughters would, upon the death of the life beneficiary, be paid over to the remaindermen absolutely. Thus, the part of the share of the residuary estate which was originally held in trust for Sol and then added to the share held in trust for the testator’s daughters, would in no contingency be held in trust for more than two fives in being. That is not true of the part added to the share held in trust for the testator’s son Ike. As we have said, the clause of the will providing for the disposition of the share held in trust for Ike was in the same words as the clause providing for the disposition of the share held in trust for Sol. Under the terms of the will, one-half of the trust fund would be held in trust for his widow and the other half would be held in trust for the testator’s surviving children. Since at the death of Ike, the part or sub-share, which at Sol’s death was added to the principal of the fund held in trust for Ike, had already been held for

At the testator’s death, when the testamentary disposition of the property took effect, it was, of course, impossible to foretell which son would survive the other or whether either son would survive his wife. If the limitations after the first life estate are given effect, then in some contingencies the share held for either son might be held in trust for only one life; in other contingencies, a one-sixth part of such share would be held in trust for more than two lives. If the validity or invalidity of the testamentary disposition is tested not “ by the happening of subsequent events ” but by “ every possible contingency ” which might occur after the will took effect, in accordance with the rule stated in Schettler v. Smith (supra), then the same taint which rendered invalid the testamentary disposition of part of the share directed to be held in trust for Sol was inherent in the testamentary disposition of the share directed to be held in trust for Ike; for the disposition was in the same terms and subject to the same contingencies. Nevertheless, perhaps by inadvertence, the Surrogate did not decree that one-sixth of the share which the testator directed should be held in trust for Ike and which would have been added at Ike’s death to the principal of the fund held in trust for Sol if Sol had survived Ike, passed as intestate property, and not under the will, after both Ike and Sol had died; though he did decree invalid the attempted testamentary disposition after Ike’s death of the part of the share originally held in trust for Sol, which at Sol’s death had been added to the principal of the trust for the benefit of Ike.

Only one of the respondents attempts to sustain this ruling. From the practical standpoint the ruling is not very important to any party and the question involved was not stressed either in the courts below or here. The test of the validity of limitations is always whether an estate attempted to be

It follows that the order of the Appellate Division and the decree of the Surrogate’s Court should be modified by providing that upon the death of both Sol Friend and Ike Friend, one-sixth of the principal of the trust funds established for them by clauses “ a ” and “ c ” of paragraph fourteen of the will passed to the persons entitled to take the property of the testator as if he had died intestate, and as so modified, affirmed with costs, payable out of the estate, to all parties filing separate briefs. (See 283 N. Y. 775 .)

Lotjghran, Finch, Rippey, Sears, Lewis and Conway, JJ ., concur.

Ordered accordingly.