In re the Judicial Settlement of the Accounts of Mead — 27 N.Y. St. Rep. 36

Majority

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In the Matter of the Judicial Settlement of the Accounts of George H. Mead, as Executor, etc., of Rebecca J. Fisher, deceased.

(Surrogate's Court, Westchester County,

Filed October, 1889.)

Headnote

1. Wilis—Perpetuities.

A will directed the executors to expend a certain sum as they might think best, “within the time prescribed by statute governing perpetuities,” in keeping a burial plot in good condition. Held, that the provision was in violation of the statute and the sum named fell into the residuum.

2. Same—Residuary legatee entitled to interest.

A gift of the residue for life entitles the residuary legatee to such interest as may have accrued on the fund up to the end of a year from testator’s death and to interest accruing thereafter.

The testatrix died March 15, 1887, and letters testamentary were issued to the executor October 10, 1887. Among other things the testatrix, by the first clause of her will, provided as follows: “After all my just debts and funeral expenses are paid, I order and direct my executors, hereinafter named, to expend the sum of $200, as my executors may deem best, within the time prescribed by the statute governing perpetuities, in keeping my burial plot in White Plains Cemetery in good condition.” Then, among other bequests, she gave to her sister, Matilda C. Harrington, her clothes and $500 in money. After the sum of $200 directed to be expended by the first clause, and the payment of the other legacies, she directed that the residue of her estate be invested by the executors on bond and mortgage, the interest or income thereof to be paid to her said sister during her natural life, with remainder oveh

W. Stebbins Smith, for executors; Frederick William Sherman, for Matilda C. Harrington.

On the part of Mrs. Harrington two objections, among some minor ones, are presented for solution. The first is-, that the provision of the will directing the executors to expend two hundred dollars in keeping the burial plot of the deceased in order is void, because in conflict with the statute against perpetuities ; the second is, that the executor has not paid and resists payment to the residuary legatee for life of the earnings of the fund.

It may be regarded as somewhat remarkable that no adjudicated case, in this state, can be found, which determines the point covered by the first objection, although a similar provision is made in many wills which have come under my observation. Doubtless the reason why a similar objection has not been made in such cases was a delicate regard for the wishes of the deceased in that respect. Whatever the cause, as the question is now raised, it must be determined. Our statute forbids a disposition of property in such a mode as will suspend the absolute ownership of it perpetually, but allows such suspension during not more than two lives in being at the death of the testator. Now; although no trust, in terms, is conferred upon the executors, yet that is the effect of the provision, and was the intention of the

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testatrix. A trust may be created without using the word “trust” or “ trustee,” and so the word or words may be used and yet no trust be created. Here the sum was to be used for the purpose indicated as the executors might deem best, “ within the time prescribed by the statute governing perpetuities. ” What the testatrix meant by this last phrase it is difficult to understand, as our statute, 1 R S., 773, § 1, authorizes certain limitations based upon life or lives, and not at all upon time. There is, therefore, no valid limitation whatever to the trust in question. The executor, if he were dishonest, might retain the fund so set apart indefinitelv, and not expend a cent of it for the designed purpose ; and has, in fact, only expended enough to paint the fence around the plot, not exceeding ten dollars, which is not equal to the interest on the fund for one year. While the point does not appear to have been determined by our courts, yet the question has been settled in other states and countries, where such a provision is held to be in violation of the statute, which appears to be nearly universal McLeod v. Dell, 9 Fla., 427 ; Rickard v. Robson, 31 Beav., 244; Fowler v. Fowler, 10 Jur., N. S., 648. It is also void because a dishonest executor could take to his own use the entire fund without question. There is no person beneficially or otherwise interested who could compel an employment of the fund as the testatrix intended. Holland v. Alcock, 108 N. Y., 312 ; 14 N. Y. State Rep., 761, and cases cited.

As to the second point, it seems to be well settled that the gift of the residue for life will entitle the residuary legatee to such interest as may have accrued up to the end of the year after testator’s death, and then interest on the amount of the fund, as afterwards ascertained, from that first year. 2 Redf. on Wills, 472; Dimes v. Scott, 4 Russ., 195; 9 Cush, 151 , 156; Williamson v. Williamson, 6 Paige, 298.

It follows then that the $200 to keep the burial plot in good condition, being undisposed of in a legal sense, will fall into the residuum, and that Mrs. Harrington is entitled to interest as above stated.

The other objections are overruled.