Onderdonk v. Onderdonk — 26 N.Y. St. Rep. 966

Majority

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John C. Onderdonk, App’lt, v. Andrew J. Onderdonk et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed May 18, 1889.)

Headnote

1. Wills — Cohstbtjoticw.

A bequest of income of a certain fund to one A. for life provided that if he violated certain specified conditions the income was to be applied to his children at once. Held, that the estate vested in the children at once and that A. had a valid life estate, at least until he violated the conditions,

2. Same.

The will provided that if any beneficiary was guilty of certain practices or should acquire such habits the provision as to him should become void, and the executors weie to be sole judges of the fact. Held, that this would not prevent the estate from vesting in those who fill the conditions,' and did not invalidate the provisions of the will.

Appeal from order of special" term sustaining demurrer to complaint and from the judgment entered thereon,

Action to declare certain clauses of a/will invalid. The will in clauses 1 to 5 made provisions for certain of testator’s children as follows: The income of a certain fund was directed to be paid to one for life and on her death without issue to another for life, and on her death the capital to be paid to the next of kin of testator’s first wife. By clause 7 the income of a fund was given to testator’s son Francis as long as he complied with certain conditions, such as not incumbering the estate, marrying before the age of twenty-eight without consent of the executors, or becoming addicted to vicious habits. On his death or failure to comply with the conditions, the income to go to his children for life. By clauses 17 and 18 it was provided that on the death of certain legatees without issue their portions were to be divided among “ all my then living, complying first wife’s descendants per stirpesBy clause 39 it was provided that if any of the persons provided for should be guilty of idleness, profligacy, etc., the provision in his favor should not take effect, or if he should acquire such habits the provision should become void; the executors to be sole judges of the existence of such faults.

Vanderpoel, Green & Cuming, for app’lt; Geo. W. Van Slyck, for resp’ts.

The provisions of the will contained in the sections numbered 1,2, 3,4 and 5 are in themselves unobjectionable. In each of those clauses a fund is created, and two life estates charged thereon. At the end of the second life estate the fee absolutely vests. The clause No. 7 is equally without legal objection. A fund is created, and it is provided that the life estate shall be paid to one of the testator’s sons. A number of things are stated in this clause that this son is expected not to do, and if he violates these conditions the life estate is to be applied to his children during his life. The estate vests in these children after the son’s

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death, absolutely and at once. The will is a proven will, and the plaintiff does not claim or aver that the son either has or is likely to violate the conditions. Until he does, he certainly has a valid life estate.

Section 16 is also valid. The residuum of the estate is divided into six shares. None of these shares are held for over two lives in being at the testator’s decease,and each share vests at the termination of the second life estate. The only objection to sections 17 and 18 is that after the life estate the fund goes to the “living, complying first wife’s descendants per stirpes." The will gives no indication of the testator’s meaning of the word “ complying,” except that it speaks of the appointment of trustees to replace dead ones ; that they be selected from testator’s descendants, “if of pure moral character, sound mind, good judgment, complying with all of the conditions thereof.” There is nothing in the use of this word which would, so far as the will speaks, prevent any designated beneficiary from taking his or her share in the fund. Section 19 merely provides that lapsed legacies are to go to the residuum, which would be so if the clause were stricken out. Section 25 is good for the same reason which is stated in support of section 18. The distribution is to be made among those of a class who have “ never violated any lawful condition or requirement hereof.” The conditions contained in section 26 are in respect to the income on life estates, and do not violate any rule of law. The life estate is to go to the beneficiary, and, if he has debts, the income is not to pay them, even as to such part as the life estate does not need. The excess over the support needed is to go to the residuum. Section 20 is entirely harmless, whether legal or not. If one who takes under the will be a minor, the executors are to retain the share until the minor becomes of age. If the heir be incompetent, the testator wishes his executors to be the committee.

In the absence of proof, section 89 is harmless. Those take who by the will are entitled to take. The power given to the executor to determine the question as “sole judges ” would be subject to judicial control. The probability of a beneficiary being or becoming subject to scrutiny in respect to the many conditions specified in the section will not prevent the vesting of the estate to persons who fill the conditions. It is in this view quite immaterial whether the conditions are precedent or subsequent. There is nothing harmful in the conditions, and, while it may require a very faultless person to take under them, it must, on the will alone, be assumed that the proper persons will take, as designed by the testator. The judgment should be affirmed, with costs.

Order sustaining defendant’s demurrer and judgment entered thereon affirmed, with costs.

Dykman and Pratt, JJ., concur.