Opinion
October 8, 1920.
Willard Bartlett, for the appellants.
Louis J. Altkrug, for the plaintiff, respondent.
William Lieberman, guardian ad litem [ Louis Marshall of counsel], for the respondents Tessie and Howard Werbelovsky.
The main purpose of this trust was to secure to these two minors the income of this property. The difficulty arises "when the younger of my said two children shall have reached the age of twenty-one." Then the trustees are to sell the two properties in fee to the three brothers named. The ninety days' option was regarded as constituting the violation of the rule against perpetuities.
During the infancy of Howard, the younger of the two, there is no improper suspension of the power of alienation. The assumed suspension is upon his reaching the age of twenty-one. Then arises this option to purchase at $25,000; failing this, the two younger children (or the survivor) take in fee. Hence, on Howard's reaching twenty-one, he with Tessie (who would be older) could lawfully join with the brothers Charles, Abraham and Benjamin in giving a deed which would effectively pass title in fee to this property. The grantors would be all of adult age. The statute which provides that an infant's real property or his interest in real property shall not be sold, contrary to the provisions of a will by which it was devised (Code Civ. Proc. § 2357), would not apply after the parties were no longer infants. The trustees have the power to convey. "The absolute power of alienation is suspended, when there are no persons in being by whom an absolute fee in possession can be conveyed." (Real Property Law, § 42.) Hence, it follows that "Where there are living parties who have unitedly the entire right of ownership, the statute has no application." ( Williams v. Montgomery, 148 N.Y. 519; Spitzer v. Spitzer, 38 App. Div. 436; Wells v. Squires, 117 id. 504; 191 N.Y. 529; Chapl. Susp. Alien. [2d ed.] §§ 39-43.)
The suggestion that in case of Howard's death the corpus of the estate is not provided for, is met by the provision that on the death of either child the whole passes to the survivor. Howard's death after Tessie's majority, therefore, would end the trust. His death before Tessie had become of age would leave her, as survivor, to take the whole, and at her majority terminate the trust.
However, an accumulation of income for Tessie for the six years after she should reach twenty-one is illegal. But that is void only as to accumulations beyond her minority (Real Property Law, § 61, subd. 3, as amd. by Laws of 1915, chap. 670), so that this incidental accumulation may be eliminated without avoiding the trust.
I, therefore, advise to sustain the trust, and so to reverse and dismiss this partition suit, with costs to appellants in both courts, payable out of the estate.
JENKS, P.J., RICH, PUTNAM, BLACKMAR and KELLY, JJ., concur.
Judgment reversed, and partition suit dismissed, with costs to appellants in both courts, payable out of the estate.