Bird v. Pickford — 56 N.Y. St. Rep. 577

Majority

p. 577

Eliza Bird et al., Resp’ts, v. Samuel Pickford et al., Executors, etc., App’lts.^[1]

(Court of Appeals,

Filed January 16, 1894.)

Headnote

Will—suspension.

The absolute power of ownership and of alienation may be suspended for three lives or for many lives provided such suspension is bounded by two designated lives in being at the death of the testator.

Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order made August 5, 1893, which reversed a judgment in favor of plaintiffs entered upon a decision of the court on trial at special term.

The nature of the action and the facts, so far as material, are stated in the opinion.

John R. Tressider, for appl’ts; Jehiel T. Hurd, for resp’ts.

This action was commenced for the construction of two clauses in the will of William Baltz, deceased. The clauses are as follows:

“ Thirdly. I give and devise all the rest of my estate, real and personal, to my executors hereinafter named, in trust nevertheless to invest and keep the same invested and divide the net income arising therefrom equally. among my said daughter-in-law, Ophelioe Baltz, and my said cousins Rachel and Addie Yan Gilder, the survivors or survivor of them during their natural lives.

p. 578

“ Fourthly. If my said cousins, Rachel and Addie Van Gilder, should die before my said daughter-in-law, Ophelioe Baltz, then, and in that event, I give and devise the corpus of said trust estate to the said Ophelioe Baltz, her heirs and assigns forever; but if my said daughter-in-law Ophelioe Baltz, should die before my said cousins, Rachel and Addie Van Gilder, then, and in that event, I give and devise the corpus of said trust estate to such person or persons as my said daughter-in-law, Ophelioe Baltz, may designate in her last will and testament.”

The plaintiffs, who the heirs and next of kin of the testator, claim that these clauses violate the statute against perpetuities, and are, therefore, void. The special term held that they are valid and the general term that they are void. We agree with the special term.

The first of the two clauses vests the corpus of the trust estate in the trustees and creates a trust for the three beneficiaries named. Standing alone, that clause would suspend the absolute ownership of personal property, and the absolute power of alienation of real property for more than two lives in being, and would, therefore, be void. But it must be construed in connection with the succeeding clause, and there it is plainly provided that the trust shall not survive the lives of the two cousins. If they die before Mrs. Baltz then the trust is to cease and the corpus of the estate is to go to her absolutely. If she dies before them, then the corpus of the trust estate is' to go to such persons as she may designate in her will. In that event the trust terminates at her death, and it has not lasted for the full term of the lives of the two cousins. But suppose she dies intestate or without making any appointment of the estate by will, then one of two things will happen; either the corpus of the estate will pass absolutely,to the-heirs and next of kin of the testator, or it will pass to them subject to the trust for the lives of the two cousins. So it is clear that in no event can the estate be tied up longer than during the lives of the two cousins, and hence there is no illegal suspension of the ownership or the power of alienation. It is not sufficient to condemn these clauses that the absolute power of ownership and of alienation may be suspended for three lives or for many lives, provided that such suspension be bounded by two designated lives in being at the death of the testator. Crooke v. County of Kings, 97 N. Y., 421 ; Bailey v. Bailey, id., 460 .

The judgment of the general term should, therefore, be reversed, and that of the special term affirmed, with costs of the appeals to the general term and to this court to be paid by the plaintiffs to the defendants.

Judgment reversed.

All concur, except Bartlett, J., not sitting.