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In re Robinson's Will

130 N.Y.S. 259 Court N.Y. App. Div. Decision date 1911-06-16 English

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In re ROBINSON’S WILL.
(Supreme Court, Appellate Division, Second Department.
June 16, 1911.)

Headnote

1. Perpetuities (§ 8[1] )—Charitable Uses.
A provision in a will that certain accumulations were to be paid over to named trustees “to provide shelter, necessaries of life, education, general or specific, and such other financial aid as may seem to them fitting and proper, to such persons as they shall select,” preference to be given to persons of certain habits and belonging to certain denominations, was void.
[Ed. Note.—For other cases, see Perpetuities, Cent. Dig. §§ 57-66; Dec. Dig. § 8.[1] ]
2. Perpetuities (§ 9[1] )—Trusts—Varidity.
A provision in a will which left a fund in trust during the lives of two persons, the trustees to pay over, out of either the principal or income or both, to the next of kin of the testatrix, such sums in the discretion of the trustee, to maintain them in their particular station and secure for them such education, culture and relief in emergency, as might seem fitting to the trustees, who were to have absolute and uncontrolled discretion, was valid.
[Ed. Note.—For other cases, see Perpetuities, Cent. Dig. §§ 67-73; Dec. Dig. § 9.[1] ]
Appeal from Surrogate’s Court, Westchester County.
In the matter of the probate of the will of Mary S. Robinson. From the decree of the Surrogate’s Court (71 Mise. Rep. 87, 129 N. Y. Supp. 1020 ), this appeal is taken.
Modified and affirmed.
Argued before JENKS, P. J., and THOMAS, CARR, WOODWARD, and RICH, JJ.
Arthur M. Johnson, for appellants.
Edward R. Otheman, for respondents.

We agree with the determination of the surrogate of Westchester county that the attempted trust set forth in the eighth, ninth, and tenth clauses of the will in question is void. We think, however, that the trust attempted to be created in the sixth and seventh clauses of the will is valid. This trust does not direct any accumulation of income, but, because it makes any payment of income or from the corpus absolutely dependent upon the discretion of the trustees under defined conditions, it may be said that it sanctions an accumulation of income during a period which is not measured by a minority. To this extent the accumulation would be unlawful. . Under these circumstances, the accumulation, if any resulted, would go to those entitled to the next eventual estate, who in this cape, as the will is now construed, would be the next of kin of the testatrix. The trust in question can continue, however, certainly as to the corpus of the trust fund during the period defined by the will. In this_ respect the trust in question is quite similar to the class, well recognized as valid, known as “spendthrift trusts.” We think that Holland v. Alcock, 108 N. Y. 312 , 16 N.

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there were no definite beneficiaries of the attempted trust, while- here the contemplated beneficiaries are fully defined by the will as being the next of kin of the testatrix.

The decree of the Surrogate’s Court should be so modified as to declare valid the trust set forth in the sixth and seventh clauses of the will, and, as so modified, affirmed, with costs and disbursements of the appeal payable out of the estate to.all the parties who have filed briefs on this appeal.

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