Hyperlawhypertext legal databasebeta In re the Estate of Sands 20 N.Y. St. Rep. 850

← Cases

In re the Estate of Sands

20 N.Y. St. Rep. 850 Court N.Y. Sur. Ct. Decision date 1888-12-11 English

Contents

Majority

p. 850
In the Matter of the Estate of Mahlon Sands, Deceased.
(Surrogate’s Court, New York County,
Filed December 11, 1888.)

Headnote

1. Will—Construction of.
The testator, by the tenth clause of his will, directed substantially that the residuary estate shall, when his youngest child attains majority, be equally divided between his wife, if she remain his widow, and his children by her, and that one of such equal portions resulting from such division shall be invested as a separate fund for the benefit of said persons, and the income thereof be paid over to the one for whom such portion be set apart as long as he may live. The clause further provides: “At the death of my wife, or of any one of my children by her, the principal sums
p. 851
hereinabove provided for, shall be divided equally between the survivors, but should any child die leaving issue, such issue are to receive in equal shares such portion of my residuary estate as their parent would have received if living " The testator, at the time of his death, left four children surviving, one being by a former marriage, an adult, and the other three minors, children of his second wife, who is now living Held, that the disposition which the testator made of his personal estate in said clause was valid. That by such disposition separate trusts were, upon his youngest child reaching majority, or in case of his previously dying, at the time of his death, created for the benefit of his wife and her children by him for their respective lives, and upon their respective deaths, whether occurring before or after the death or majority of the youngest child, the funds belonging to the respective trusts would go to the issue of the respective beneficiaries absolutely.' In case there should he no surviving issue of any beneficiary, then the share in which such beneficiary was interested would -be divided among the surviving beneficiaries. The share of the wife upon er- death would be distributable among such of the children as should urvive her, and the issue then surviving of any of them who should be -dead. In case of the death of a beneficiary before the arrival of the time designated for setting up the trusts, those who would take the principal of-the shares would become entitled to a vested interest in the same, with the right of possession or enjoyment postponed until the death or majority of the youngest child. If the death of a beneficiary happened subsequently to the time just mentioned, his issue then living would take a vested interest, with an immediate right of enjoyment, in the principal of the trusts for the benefit of such beneficiary
8. Same—Accumulations.
The eighth clause of the will provides for the continuance of the interest of the testator in the business therein mentioned, and the reception of the profits thereof by the executors, until the youngest child should reach majority, and then their division between the testator’s wife and her children by him. Held, that in so far as it makes provision for the retention of the profits for the purpose of division until the event specified, it is invalid. Such provision contemplates an accumulation of profits in the mean time which are not expressed or intended to he for the benefit of the minors solely.
3. Same—Third Revised Statutes (7th ed.), page 2179, applicable to personal property.
The provisions of the 3d Rev Stat. (7th ed), page %179, which directs that the rents and profits of an expectant’s estate during the time when the power of alienation is suspended, shall be given to the persons presumptively entitled to. the next eventual estate, is applicable to personal prop ' erty, as well as real estate.
4. Same—Who presumptively entitled to next eventual estate.
■ The parties presumptively entitled to the next eventual estate or interest ■ in the fund set apart by the eighth clause of the will, are those for whose, benefit the trusts are provided to be set up out of the residuary estate, the widow of the testator and her children by him.
5 Same—Intent op provision altering age when legacy payable.
The testator by the fifth clause of the codicil which reads, “I hereby alter the age at which my sons are to receive each a capital sum of $30,000, from the principal of my estate, to twenty-one years, so as to make the date correspond with the time at which my residuary estate can be divided.” intended to change the time which he had previously fixed for receiving the respective legacies, to the time which he had designated for the division of the residuary estate, that is, when his youngest child should reach the age of twenty-one years.
8. Same—Suspension op alienation.
The third clause of the codicil provides, “ it is my will that when my youngest child attains the age of twenty one years, the sum of $30,000
p. 852
be set apart by my executors before my residuary estate is divided for the benefit of my wife, provided she remains my widow, and that said sum shah be invested for her benefit, and the interest thereon paid over to her during her natural life, and at her death the principal to revert to my estate. Held, that such part of the legacy as would upon the death of (he wife go into and become part of the trust fund held for the benefit of a child's share other than the youngest was void. That such part as might become a portion of the trust fund for the benefit of the youngest child would be valid, for it would be held for no more than two lives in being at the testator’s death, before it is required to be finally distributed.
Mahlon Sands died May 8, 1888, being at the time of his death a resident of and leaving personal estate within the county of New York. He left him surviving his widow, Mary M. Sands, and four children, his only heirs-at-law and next of kin.
1. Mabel Sands, his daughter by a former marriage.
2. Ethel Sands.
3. Mahlon Alan Sands.
4. Morton Harcourt Sands.
The last named' children are the issue of his marriage with Mary M. Sands.
At the time of the decedent’s death Mabel Sands was of, full age; the other three children were all minors, Ethel Sands being fifteen years old, Mahlon Alan Sands being ten years old, and Morton Harcourt Sands being four years, old.
The decedent left no real estate, except a certain house and lands at Newport, Rhode Island.
The instruments which are presented for probate as his-last will and testament, consist of a will dated May 19, 1883, and a codicil dated May 1, 1885.
The dispositions of the personalty attempted to be made by these instruments are as follows:
By the first clause of the will the decedent directs the-payment of his debts and funeral expenses. By the second clause of the will he bequeaths to his widow $2,000 in cash and also his furniture, carriages, horses, harness and plate,, except the articles which belonged to his first wife, which . he bequeaths to Mabel, his daughter by such wife.
By the fourteenth clause of the will the decedent also bequeaths to Mabel various articles which belonged to her mother, his first wife, in a jewel case stored with Messrs. Tiffany & Co., New York, and a set of bedroom furniture in his house at Newport, R. I.
By the sixth clause of his will, he appoints his widow and her uncle, L. P. Morton, guardians of his children by a second marriage.
By the thirteenth clause, he appoints his brother, Phillip-J. Sands and L. P. Morton, and his widow, executors of his will, and further directs that in the event of his brother
p. 853
Phillip dying leaving a will, that the person or persons appointed by him as his executors, or such of them as shall act, etc., shall also be qualified to act as his executors and trustees, etc.
By the twelfth clause, he prescribes the powers of the executors, as follows:
‘1 Twelfth. I give to my executors full control over the investment of funds belonging to my estate, and I empower them to retain or to sell and convey any property belonging to me at the time of my death, not herein otherwise disposed of.”
By the fourteenth clause, he appoints guardians for his daughter during her minority, and bequeaths her upon attaining her majority the income upon $20,000 for life. This bequest is revoked by the first clause of the codicil, and as Mabel was of full age at the time this proceeding was commenced, the appointment of a guardian is inoperative.
The will by the third clause makes a specific disposition of decedent’s real estate in Ehode Island, the validity and effect of which is not considered in the opinion.
By the fifth clause, he appoints his wife, the mother, and one Eobert Minturn guardians of his daughter Mabel, and directs that when she attains the age of twenty-one years, his executors should take from the capital of the estate $20,000, and invest it and keep it invested as a support fund, and to pay the income thereof so long as she shall live to her, and at her death he further directs the said fund to be divided equally among her children, or if she had none, that it revert to the testator’s estate.
The other dispositions of the will and codicil, except those relating to the house and land in Ehode Island, and being those which are now brought into question, are as follows:
Will.
“4th. I give to my said wife, so long as she remains my widow, and until such time as my youngest child by her attains its majority, two-thirds of the net income of my estate. The provisions herein made for my wife are hereby declared to be in lieu of and in bar of all dower or third in my estate.
“8th. It is my will that the business of making and selling Wright’s pills, McMunn’s Elixir of Opium, and the other patent medicines now manufactured and sold under the agency .of Mr. E. Ferrett, in which medicines I have an interest under my late father’s will, be continued as far as possible as at present conducted, and that the profits of my interest be paid to my executors until my youngest child attains its majority. I then direct my executors to divide the profits of my interest equally between my wife, provided she remains my widow, and her children by me. Should
p. 854
my wife have remarried, the profits are then to be divided equally between the children of my second marriage. And it is my will that the final disposition of the fee of my interest in above medicines shall be the same as is hereinafter provided, icith reference to my residuary estate.
“ 9th. The income of my estate not otherwise disposed of, I direct my executors to invest in their best discretion in such securities as are usually selected for trust funds, and among such I class the mortgage bonds of railways mortgaged for not over $25,000 per mile, or of railways earning six percent on their capital stocks.
“ 10th. When my youngest child attains its majority I direct that all the rest, residue, and remainder of my estate be divided equally between my wife, provided she has remained my widow, and her children by me; and that one of such equal portions be invested as a separate fund for the benefit of each of said persons and the income thereof be paid over to each of said persons as long as they may live. At the death of my wife, or of any one of my children by her, the principal sums herein above provided for shall be divided equally between the survivors, but should any child die leaving issue, such issue are to receive in equal shares such portion of the patent medicines above referred to, and of my residuary estate as their parent would have received if living.
“lith. Should my wife remarry, it is my will that the income provided for her under the fourth clause of this, my will, shall go to my residuary estate until my youngest child attains its majority, and that the share in the profits of the patent medicine business given to her in clause eight shall be similarly disposed of, but it is my intention to give my wife the house and land at Newport, R.' I., absolutely.
“7th. When my son snail attain the age of twenty-five years, I direct my executors to pay to him from the capital of my estate the sum of $30,000, provided they deem him solvent and of good habits, but if not, I direct them to injvest that sum as a separate fund for his benefit, and to pay over to him the interest thereon during his fife, and at his [ death. the principal to be divided among his children, or should he have none, it is to revert to my estate.”
Codioil.
“Second. It is my intention in clause seven to refer to my eldest son, Mahlon Alan, and it is my will that the same provision as is made in said clause seven for said eldest • son shall be made by my executors for my second son, Morton Harcourt, when he attains the age of twenty-five years, subject to the same restrictions.”
“Fifth. I hereby alter the ages at which my sons are to
p. 855
receive each a capital sum of $30,000 from the principal of my estate to twenty-one years, so as to make the date correspond with the time at which my residuary estate can be divided. ”
'Third. It is my will that when my youngest child attains the age of twenty-one years a sum of $30,000 be set apart by my executors, before my residuary estate is divided, for the benefit of my wife, provided she remains my widow, and that said sum shall be invested for her benefit and the interest thereon paid over to her during her natural life, and at her death the principal to revert to my estate.™
The clauses of the will and codicil are here grouped so as to present together those which refer to the same subject matter.
Robinson, Scribner & Bright, for Mary M. Sands; Boor-man Hamilton, for William H. Hamilton, special guardian of Ethel Sands; Frederick D. P. Foster, for proponent; Sidney J. Cowen, special guardian; Rtissell Benedict, for Mabel Sands.

The formal requisites provided by the statute for the execution of a will have in this case been complied with by the testator. It is undisputed, and has been proven, that he possessed, at the time of the execution of his will testamentary capacity. The validity, however, cf the disposition of his personal estate, attempted to be made by the will, is questioned; and it is claimed that these dispositions, or the most important of them, are of such a character as to require that they should be declared void and inoperative. The tenth clause, which is the main object of attack, directs, substantially, that the residuary estate shall, when his youngest child attains majority, bo equally divided between his wife, if she remains his widow, and his children by her; and that one of such equal portions resulting from such division shall be invested as a separate fund for the benefit of each of said persons, and the income thereof be paid over to the one for whom such portion had been set apart, “as long as they may live.” The clause further provides:- “ At the death of my wife, or of any of my children by her, the principal sums herein-above provided for, shall be divided equally between the survivors; but should any child die leaving issue, such issue are to receive in equal shares such portion of my residuary estate as their parent would have received if living.” The testator at the time of his death left four children, who still survive; one of them is a child by a former marriage, and is an adult; the other three are minors, and are children by his second wife. ■ She is now living. The point is made with regard to the direction for the division of the residu

p. 856
arv estate, that it was designed to so operate that in case any two of the minor children should die before attaining majority the division should be deferred until the third child who happened to survive them should reach majority and that in the meantime the executors were, by the provisions of the will, required to hold and administer the estate upon trusts which, if such provisions are valid, would render it, during their .continuance, inalienable. The effect of this would be a suspension of the power of alienation for' more than two lives in being at the death of the testator, and the consequent invalidity of the provision under consideration. Part 2, chap. 4, tit. 4, § 1; 3 Rev. Stat. (7th ed.), 2,256; Manice v. Manice, 43 N. Y., 303 .

I have no doubt whatever that it was the intention of the testator to invest his executors with the actual control and active management of his personal estate, save such part as he had specifically bequeathed, with the collection and investment of the income and of its disposition in the way indicated by the will, and to constitute them for the purpose trustees of a trust to continue until, the time which he had appointed for the division of the residuary estate should arrive. The provisions of the fourth, eighth, ninth, tenth and twelfth clauses recognize this, although the will does not expressly so provide. Ward v. Ward, 105 N. Y., 68 ; 6 N. Y. State Rep., 798; Robert v. Corning, 89 N. Y., 225 .

The contention that the youngest child mentioned in the clause in question refers to such one of the testator’s minor children as shall live to first reach majority, and not solely to the youngest child living at the time of his death, is untenable. The child meant is undoubtedly the latter. The construction which adjudged cases have put upon provisions of similar character leave no room for any other conclusion. They hold besides that the effect of such a provision is simply to prevent a division of the estate until the child shall attain the age of twenty-one years, or previously depart this life. Muller v. Struppman, 6 Abb. N. C., 350 ; Lang v Ropke, 5 Sand., 369 ; Burke v. Valentine, 52 Barb., 412 ; Gilman v. Reddington, 24 N. Y., 9 ; Van Cott v. Prentice, 104 N. Y., 56 . 57 ; 5 N. Y. State Rep., 654.

Any uncertainty that may be supposed to exist as to whether the child intended was the youngest living at the time of the execution of the will, or the child who was after-wards born, but was the youngest living at the time of the death of the testator, is at once removed upon reading the third clause of the codicil in connection with the clause of the will now being considered. They unmistakably show that the testator had in mind the youngest child living at his death.

p. 857
The time for the division of the residuary estate being postponed for the minority of a single child or until such child should depart this life before reaching majority, the power of alienation could, of course, be suspended for but a single life. The direction for the division into separate trusts for the lives of the respective beneficiarcies constituted as to each share a distinct and separate trust for the life of the person entitled to its income. The dispositions thus far attempted to be made of these shares, or of the residuary estate from which they were to be carved, considered apart from the provision for their ulterior limitation, are not open to the objection that they unlawfully suspend the power of alienation, as under them in no event could any share be held longer than for the life of the youngest child and the life of the particular beneficiary for whom such share was required to be put in trust. Manice v. Manice, supra; Wells v. Wells, 88 N. Y., 329 -330, 332-333 ; Monarque v. Monarque, 80 N. Y., 320 .

The first part of the provision for the ulterior disposition of the residuary estate requires that, at the death of the testator’s wife or of any of her children by him, the principal sums hereinabove provided for, shall be divided equally between the survivors. The death here mentioned is not expressly referred to any particular period, nor are any terms of contingency, such as in case of, or in the event of, used in connection with it, so as to allow the inference that it was intended to be confined in its application to death happening before the youngest child should attain majority. It, in my judgment, refers to the death of any of the persons specified, whether occurring before or after the happening of the event mentioned.

The survivors of such persons who should be living at the time of the death of any of them, would then become entitled to a vested interest in the property given by this provision. In the event of such death occurring before the youngest child should reach majority, the right of enjoyment of the person or persons taking would be postponed until the time for the division of the residuary estate should arrive, viz., death or majority of the youngest child. Should the death referred to happen after the youngest child had attained majority, the right of possession and enjoyment of the survivor or survivors of such deceased person or persons would be immediate.

The right of the survivors to take all n case of the death of a child is, in my judgment, made dependent by the subsequent portion of the provision upon the contingency of the child dying without leaving issue. The interest bequeathed to the survivors is “the principal sums” therein provided for. By these sums is evidently meant the principal of the several funds embraced in the trusts constituted

p. 858
by the primary bequests. Literally construed, the direction for division between the survivors of his wife and her -children by him would seem to contemplate a disposition upon the death of any of them of not merely, the part of the residuary estate held or intended to be held in trust for the' one dying, but of the rest of the residuary estate as well. The fact that the testator, by the primary bequest of such estate expressly provides for the constitution of trusts to endure for the lives of the respective cestuis que trust plainly evidences that the design attributed to him by the construction suggested was never entertained, but that his purpose was to provide for the distribution of the share affected by the trust constituted, or intended to be constituted, for the person dying. In other words, the testator meant that the share intended to be held in trust for ,a beneficiary should go, upon the death of the beneficiary, to the survivors. In case of a beneficiary who is a child there is the proviso that the child should have left no issue. This bequest to the children who might survive the wife, of the fund, the income of which was left to her, as well .as the gift to the survivors of the wife and children of the share of such of the children as should die without leaving issue, is, in the view I take of the matter, so disconnected from the disposition which immediately follows as to render their invalidity unaffected by any taint of illegality that may attach to the latter. I regard them as entirely independent provisions and the disposition over upon the death of a child without leaving issue as a strictly alternative bequest. Schettler v. Smith, 41 N. Y., 328 ; Manice v. Manice, supra.

The meaning of the provision which immediately follows the one just considered is more difficult of solution. It declares: “But should any child die leaving issue, such issue are to receive in equal shares such portion of the patent medicines above referred to and of my residuary estate as their parent would have received if living.” The portion of the estate here intended obviously refers to a part of the principal sums previously mentioned, and whose meaning I have already explained. Such sums represent the shares resulting from the division of the residuary estate, of which the interest of the testator in the patent medicine business is, by the eighth clause of the will, in effect made a part. This provision is susceptible of several interpretations. By one, it might be construed as making provision for the distribution among the issue of a deceased child of the portion such child would have succeeded to had he survived to do so in the share held in trust for the wife, or a child who had died.

This would involve the notion that the share of each

p. 859
beneficiary of a trust would, upon the death of such beneficiary, go, in the case of a child, not to his issue, but to the surviving children and the issue of any child who then happened to be dead. Under this interpretation, in case of the death of a child leaving issue, the issue would be entirely excluded from participation in the share set apart for the parent, which would be distributed among the widow and survivng children of decedent; and while the issue of the child first dying might eventually become entitled, upon the death of the other children, to a part of each of their shares, the issue of the child last dying would be debarred entirely from any share in the funds in which their parent or the other children were interested. In the distribution required • by this viewr, the issue of the second child dying could only become entitled to share in the principal of the trust appropriated for the last. In view of the strange results flowing from this construction, it would be scarcely possible to suppose that it represents the intention of the testator; while the language employed closely scanned may give some color of plausibility to the interpretation which 1 have declined to adopt.

The construction which would permit the surviving children of decedent to take the share of a deceased child only in the absence of issue of such child would seem to reflect the intention of the testator, and I have previously indidicated that I think it does. It is manifest from the language of this provision that the testator intended that the issue of a deceased child should take some portion of the residuary estate, including the interest in the patent medicines; but the precise share or portion is in some degree rendered uncertain by the language he has used to identify or describe it. I am satisfied that the “portion” which it was intended that the issue should take was that in which their parent was given a beneficial life interest, together with such part as he would be entitled to take in the share of the widow and in the share of the other children dying without issue, in the event that he survived them. The language by which the testator made the gift should, for the purpose of effectuating his intent, be so construed as to read as if the bequest was of the portion -of the residuary estate whose principal or income the parent would have taken if, or while, living. Wells v. Wells, 88 N. Y., 330 .

This construction of the bequest is justified from what I deduce to be the intention of the testator from the general scope and purpose of his will, as well as from the plain im port of the bequest itself and the authority of decided cases. DuBois v. Ray, 35 N. Y., 172 , 175; Wager v. Wager. 96 id , 172, 174.

Either of the interpretations just considered relieves the

p. 860
dispositions affected by it from any objection of unlawfully suspending the power of alienation.

A third interpretation is suggested. This would restrict the right of the survivors of the wife and children and the issue of the latter to take only in case of the death of the wife or of a child who had survived the majority of the youngest child. This would not, in the view I have taken of the meaning of the language employed, involve any question as to the unlawful suspension of the power of alienation. It would, however, in the event of any or all of the beneficiaries dying previously to the period stated, work an intestacy as to a part or all of the estate, as the case might be, and thus defeat the manifest intent of the testator to prevent an intestacy and to make complete disposition of his entire residuary estate.

Still another construction, to the effect that the testator intended, in any event, that the trust created for the benefit of a child should be continued after his death for the benefit of his issue, or in the absence of such for the surviving children, and thus effect an unlawful suspension of the power of alienation of the fund, finds no support whatever in the language of the provision.

I have thus arrived at the conclusion that the dispositions which the testator has made of his personal estate by the tenth clause of his will are valid. By such dispositions separate trusts were upon his youngest child reaching majority, or in case of his previously dying, at the time of his death, created for the benefit of his wife and her children by him for their respective lives, and upon their respective deaths, whether occurring before or after the death or majority of the youngest child, the funds belonging to the respective trusts would go to the issue of the respective beneficiaries absolutely. In case there should be no surviving issue of any beneficiary, then the share in which such beneficiary was interested would be divided among the surviving beneficiaries.

The share of the wife, upon her death, would be distributable among such of the children as should survive her and the issue then surviving of any of them who should be dead. In case of the death of a beneficiary before the arrival of the time designated for setting up the trusts, those who would take the principal of the share would become entitled to a vested interest in the same, with the right of possession or enjoyment postponed until death or majority of the youngest child. If the death of a beneficiary happened subsequently to the time just mentioned, his issue then living would take a vested interest with an immediate right of enjoyment in the principal of the trust for the benefit of such beneficiary.

There can be no question that the bequest to the widow in the fourth clause is valid. She is given two-thirds of

p. 861
the net income of the estate as long as she remains testator’s widow, but in no event is this bequest to extend beyond the time when the yougest child shall attain majority or previously die. After this time, provision is made for her in the tenth clause, in case she remains unmarried; should she remarry, she would cease to enjoy the income given by the fourth clause. By the eleventh clause it is directed that such income is thereafter to go to the residuary estate, to be held until testator’s youngest child shall reach majority. The effect of this attempted disposition of the in come will be afterwards considered. The interest in the re • siduary estate, which the widow is, by the tenth clause, •entitled to take, is made dependent on her remaining testator’s widow; although the language used here, when taken literally, would seem to preclude the widow only in the event of her having ceased to be such, at or previously to the time of the division of the estate, from taking any share in the property divided, yet its obvious sense and purpose is, upon her remarrying, without reference to when it may occur, to deprive her of any share in testator’s residuary estate. Clauses four, eight and eleven leave no doubt of the correctness of this view.

Mo disposition is made of this share in the contingency stated. The bequest to the widow and children provides for the division between them equally and for the retention in trust for each of them of a distinct and separate fund or share. The fund so intended to be held for the wife will, in the event of her remarriage, be disposed of as in case of intestacy and not go to augment the shares to be held for the children. The direction is for a division between the wife and children equally. This, if the provision stopped here, would make them tenants in common, and the result as to the direction in which the share would go, would undoubtedly be as indicated. Stevenson v. Lesley, 70 N. Y., 515 -516; Everitt v. Everitt, 29 id., 72.

The separation, however, which is to follow the division of the respective shares into distinct and independent trusts, and their ultimate disposition, affords additional and convincing proof that the effect must be as stated. The circumstance that the bequest is part of the residuary estate does not alter the result. Kerr v. Dougherty, 79 N. Y., 346 -349; Beekman v. Bonsor, 23 N. Y., 312 .

The direction contained in the eighth clause for the continuance of the interest of the testator in the business therein mentioned, and the reception of the profits thereof until the youngest child should reach majority, and then their division between his wife and her children by him, is, so far as it makes provision for their retention for the purpose of division until the event specified, invalid. Such provision plainly contemplates an accumulation of profits

p. 862
in the meantime, which are not expressed or intended to be for the benefit of minors solely. To the extent that it provides for such accumulation, the provision is, therefore, void. Part 2, chap. 4, title 4, §§ 2, 3; 3 Rev. Stat. (7th ed.), 2257; Boynton v. Hoyt, 1 Denio, 53 ; Lang v. Ropke, 5 Sand., 365, 371, Pray v. Hegeman, 92 N. Y., 517 to 519; Kilpatrick v. Johnson, 15 id., 326.

The invalidity of this direction for accumulation, while-obviating the necessity for any consideration of the subject of the seeming incompatibility between the dispositions contained in the eighth and eleventh clauses of the will with respect to the accumulations in the event that the widow should remarry, does not affect the validity of the provision for the ultimate incorporation in the residuary estate of the principal of the fund.

The provision requires that its disposition shall be the-same as is provided with reference to the residuary estate. The word “fee,” which has been employed to define the-character of the interest given, while a very inapt term to-use in the connection in which it has been employed, leaves no doubt that the intention was to the effect stated. The-cases which follow and are cited with respect to the question of the disposition of the intermediate profits are authorities for the conclusion that the disposition of the- corpus of the fund is valid, dispite the nullity of the directions for accumulations. The statute (part 2, chap. 1, tit. 2, art. 1, § 40; 3 Rev. Stat. [7th ed.], 2,179), provides: “ When in consequence of a valid limitation of an expectant estate, there shall be a suspense of the power of alienation or of the ownership, during the continuance of which the rents and profits shall be undisposed of, and no valid; direction for their accumulation is given, such rents and profits shall belong to the persons presumptively entitled to the next eventual estate.” This section, although a part of an article of the Revised Statutes relating to real estate, has been held alike applicable to personal property. Gilman v. Reddington, 24 N. Y., 19 , and cases cited next below.

In the present case the parties presumptively entitled to the next eventual estate or interest in the fund in question, .are those for whose benefit the trusts are provided to be set up out f the residuary estate—the widow of the testator and her children by him. Manice v. Manice, supra; Pray v. Hegeman, 92 N. Y., 508 ; Barbour v. DeForrest, 95 id., 13; Shettler v. Smith, 41 id., 332-339-340.

The ninth clause of the will pertains, not merely to the manner of investment of the income, but also contemplates its accumulation. The intention of the testator, as to the character of the securities to be selected for investment, is perfectly plain, and no aid from the court is required to dis

p. 863
cover it. But, considering the provision in connection with the dispositions made in the tenth clause, and of those in the eighth, there can be no doubt that an accumulation was intended for disposition under the tenth clause. The same result in all respects follows as in the case of the accumula ■ tian provided for by the eighth clause.

The second clause of the codicil, taken in connection with the seventh clause of the will, makes provision for the payment out of the capital of the estate, under certain conditions, of a legacy of §30,000 to each of his sons upon their respectively reaching majority.

The fifth clause of the codicil reads: “I hereby alter the ages at which my sons are to receive each a capital sum of $30,000 from the principal of my estate to twenty-one years, so as to make the date correspond with the time at which my residuary estate can he divided.” There is no doubt some ambiguity and indefiniteness in this language, yet I think the testator’s meaning is easily discovered. He intended to change the time which he had previously fixed for receiving the respective legacies to the time which he had designated for the division of his residuary estate, that is, when his youngest child should reach the age of twenty-one years. That this was his purpose is obvious from his language altering the time, viz.: “So as to make the date correspond with the time at which my residuary estate can he divided.” This accords fully with the scheme of the testator’s will, and his palpable purpose to make the majority of his youngest child the event upon which the distribution of his residuary estate was to be dependent. The circumstance that this provision is contained in a clause which almost immediately follows a bequest of a like sum to the widow, to take effect when the youngest child should attain majority, affords strong evidence of the correctness of the conclusion reached with respect to the time when, the legacies to the. sons are payable. These bequests will, therefore, be payable out of the corpus of the estate for the benefit of the respective legatees when the youngest child of the testator shall attain majority in the manner provided, and subject, of course, to the restrictions imposed by the bequest, in case either of the legacies should be retained and invested for the fife of the legatee who should have no child surviving, the legacy would under the provision for its reversion to the estate go into and become part of the residuary estate. In such event, in the case of the youngest son, who happens to be the youngest child of the testator, there can be no question as to the validity of this disposition. Respecting the bequest of the residuary estate, it has been stated that the interests which were given the

p. 864
legatees they take separately or as tenants in common, and-not as joint tenant's.

Part of this legacy would then revert in equal shares to the trusts for the benefit of the other beneficiaries who should then be living, and be incorporated with the shares included in such trusts and devolved with them. The balance of the legacy would pass in the same manner as the principal share of the legatee in the residuum in the event-of his not leaving issue; that is, to the survivors. The disposition of this legacy would, therefore, in no event, involve an unlawful suspension of the power of alienation for more than two lives in being at the death of the testator Manice v. Manice, supra.

In the instance of the other son, a different result would, be produced as to such part of his legacy as would be incorporated with the trust for a beneficiary other than the youngest child of the testator. The power of alienation as-to that might be suspended during three lives, to wit : The life of the youngest child of testator, the life of the legatee himself and that of any other beneficiary of a share in the trust in which it might be incorporated. As to such part the legacy is void and would go as in case of intestacy. This result would not affect the validity of the interest of the legatee in the legacy or the alternative disposition in favor of his children. Schettler v. Smith, supra; Manice v. Manice, supra.

The condition to which the right of the legatees to take their legacies absolutely is made subject, is such a restriction as a testator can lawfully impose. Hull v. Hull, 24 N. Y., 647 ; Wells v. Wells, 88 id., 323

The bequest of $30,000 for the benefit of the widow contained in the third clause of the codicil is, in like manner,, made payable out of the capital of the estate when the-youngest son shall reach majority, in the event of her remaining testator’s widow, and upon her death would, under the direction for its ultimate disposition, become part of the residuary estate. The same result as in the case of the second child follows here as to such part of the legacy as would, upon the death of the wife, go into and become a part of the trust fund held for the benefit of a child other than the youngest. It is void, and would go as in case of intestacy. Such part as might become a portion of the trust fund held for the benefit of the youngest child could, of course, be held for no more than two lives in being at the testator’s death before it is required to be finally distributed, and is valid.

The foregoing, I think, disposes of all the questions which have been presented- for my determination.

Statutes and regulations cited