Opinion
Argued April 26, 1955
Decided June 10, 1955
Appeal from the Supreme Court, Appellate Division, First Department, COLLINS, S.
Paul Bauman, Herman Goldman and Milton J. Levitt for James M. Engle, appellant.
Ruth Lewinson, special guardian, and Louis C. Fieland for Lani C. Engle, infant, appellant. Copal Mintz, special guardian for June D. Brackett and others, infants, respondents, and for Barry S. Brackett, respondent.
Hugh L. Thomson for Bankers Trust Company, trustee, respondent.
This appeal is from an order affirming the Surrogate's construction of a will. The problem arises due to the death of one grandchild and the birth of another after the death of testator. The residuary estate is given in trust for his wife during her lifetime, to be divided into three equal parts upon her death. One of these parts is to be subdivided "into as many shares or portions as I may have grandchildren surviving me," and the testamentary trustees are directed "to pay the income from one such share unto each of such grandchildren for and during the term of its natural life and upon its death to pay the principal sum from which it has been receiving the income unto its issue, if any, and, if it leaves no such issue, unto my remaining grandchildren in equal shares or portions, the children of any such grandchildren who may be then dead to take the share or portion which their parent would have received had it lived." (Italics supplied.) The question is whether the unqualified language, "my remaining grandchildren", encompasses afterborn grandchildren and thus all grandchildren who are alive when the contingency occurs, or whether it is limited by referring back to those grandchildren who were alive at the time of the death of testator and who have been previously designated as "grandchildren surviving me". Testator could not establish a trust for the life of a grandchild not in being at the time of his death, for that would have violated the Rule against Perpetuities (Personal Property Law, § 11; Real Property Law, § 42; Seitz v. Faversham, 205 N.Y. 197). But nothing stood in the way of his giving a remainder to afterborn grandchildren upon the termination of trusts for the benefit of those who had been born during his lifetime. It is manifest from the next paragraph of the will that testator wanted to provide for afterborn children of his daughter Faith, whom he seems to have considered to have been the child whose age rendered her the most likely to bear children in the future. When it came to distribution on the death of any of these secondary life beneficiaries, the Rule against Perpetuities did not interfere, and we find no difficulty in giving the language its full scope which directs distribution to "my remaining grandchildren".
The order should be reversed, with costs to all parties appearing separately and filing separate briefs payable out of the estate, and the matter remitted to the Surrogate's Court for further proceedings in accordance with the opinion herein.
CONWAY, Ch. J., DESMOND, DYE, FULD, FROESSEL and BURKE. JJ., concur.
Order reversed, etc.