Opinion
Argued June 14, 1940
Decided July 24, 1940
Appeal from the Supreme Court, Appellate Division, Second Department, MILLARD, J.
Samuel D. Cooper for petitioner, appellant and respondent. Angeline Bennett and William Feinberg for Bertha S. Gorham, as executrix, respondent and appellant.
The testator, Frank Gorham, died March 17, 1918. He left three sons surviving him, George Arthur Gorham, Walter Durbrow Gorham and Frank Gorham, Jr. Frank Gorham, Jr., died August 27, 1937, leaving no children. George Arthur Gorham is still living. At the time of the death of the testator, George Arthur Gorham had two children, Frank M. Gorham and the petitioner, Margaret Gorham Olena. Frank M. Gorham died July 9, 1933. Walter Durbrow Gorham is living but has no children.
Margaret Gorham Olena has brought this proceeding, asking for such a determination of her interests in the estate of her grandfather as requires a construction of paragraph third, subdivision IV, of his will.
By the terms of the will testator's wife is given a life estate in the entire residuary estate of the testator. She, however, predeceased the testator, and the provision for her benefit never became effective and may be disregarded. By the first three subdivisions of paragraph third, each of testator's sons is given one-quarter of the residuary estate outright. The fourth subdivision is as follows: "I give, devise and bequeath the other of such parts or fourths, to the executor hereof, in trust nevertheless to divide the same into three equal parts or shares and to set apart and hold during the life of my son George Arthur Gorham, upon a separate trust for the benefit of any child or children there may be of my said son, George Arthur Gorham, surviving his death, one of such equal thirds; to set apart and hold during the life of my son, Walter Durbrow Gorham, upon a separate trust for the benefit of any child or children there may be of my said son, Walter Durbrow Gorham, surviving his death, one of such equal thirds; and to set apart and hold during the life of my son, Frank Gorham, Jr., upon a separate trust for the benefit of any child or children there may be of my said son Frank Gorham Jr. surviving his death, the other of such equal thirds, the part or third (being a twelfth part of my entire estate) so held, in the event of any one or more of said sons not leaving children surviving him, to be forthwith added to and become proportionately a part of the share or shares, as the case may be, held in trust for the children of the other sons, the said executor and trustee to have full power, upon the request of any one of my said sons, to advance to said son so much of the part so held for his child or children, as such parent may deem fit and proper, and necessary to resort to, in or toward their education."
Three separate trusts, as distinguished from a single trust, are created by the quoted language. ( Looram v. Looram, 269 N.Y. 296.) As, in the case of each of these separate trusts, only the children of a son who survive their father are entitled to receive the principal, there is a suspension of the absolute power of alienation in the case of each trust for one life only so far as the provision relates to this primary disposition. It is only when the cross-remainders are considered that a suspension of the absolute power of alienation beyond the permissible period occurs. (Pers. Prop. Law [Cons. Laws, ch. 41], § 11; Real Prop. Law [Cons. Laws, ch. 50], § 42.) In this regard the will requires the trust principal in each of the three trusts, if the son of the testator dies childless, to become a part of the corpus of the other trusts or trust. The absolute power of alienation of all of the principal of each of the three trusts may thus under varying conditions be suspended for three lives. Invalidity results as to the provision for cross-remainders. ( Matter of Colegrove, 221 N.Y. 455; Matter of Bardol, 278 N.Y. 543, affg. 253 App. Div. 498.)
The primary intention of the testator was that the children of each son surviving their father should receive the principal of one of the three trusts. The cross-remainders were subordinate to this thought. In somewhat similar cases the good has been separated from the bad and effect given to the good. This is to be done here, and only the cross-remainders held invalid. ( Looram v. Looram, supra; Matter of Colegrove, supra; Matter of Bardol, supra.)
No provision is made for the payment of the income of these trusts during the life of the son on which the future estates are limited. In the case of the trust for the children of George Arthur Gorham, the income has been payable to his living children as presumptively entitled to the next eventual estate by reason of a valid limitation of an expectant estate. (Pers. Prop. Law, § 11; Real Property Law, § 63.) This right to income and the right to participate in the distribution of the principal of the trust for the benefit of the children of George Arthur Gorham, if the petitioner outlives her father, are the only interests which the petitioner has under her grandfather's will. There has been a complete intestacy as to the trust for the benefit of the children of the deceased son Frank Gorham, Jr., and, unless and until a child of Walter Durbrow Gorham is born, there is an intestacy as to the income from the trust created for the benefit of his children, and as to the principal there will be an intestacy unless a child is born and survives his father.
For these reasons the order should be affirmed, without costs.
LEHMAN, Ch. J., LOUGHRAN, FINCH, RIPPEY, LEWIS and CONWAY, JJ., concur.
Order affirmed.