Opinion
January 10, 1908.
William Klein, guardian ad litem, for the appellants.
Robert A.B. Dayton, for the respondent.
The will gave all the testator's property to his wife and sister in trust for the benefit of his four children, "the income and such portion of the principal as may be necessary for their maintenance to be used until all shall have reached their majority, when after deducting the percentage legally allowed to my wife Mary L. Whitefield, the residue or balance is to be divided share and share alike among the aforementioned children Letitia, Mary, Martha and George 3rd; in the event of the death of any of said children without issue, said share to be divided pro rata among those remaining. * * * I hereby authorize and empower my trustees hereinafter named to sell and dispose of any * * * of my property, real and personal or mixed, in their discretion, and to execute all necessary papers to consummate such sale or disposition."
There can be no question but what the ultimate vesting of the title of the testator's property was postponed until his four children arrived at the age of twenty-one. All the property of the testator, real and personal, was to be retained by the trustees during that period, the income and the necessary portion of the principal to be used for their maintenance and support, the share of any one dying to be divided among the survivors. The power of sale vested in the trustees does not change the situation. There is no provision in the will that authorizes the trustees to sell the property and divide the proceeds before the termination of the trust. If they sold the real property they would still hold the proceeds subject to the same trust as they held the property prior to the sale. The question is not as to the power of alienation but the suspension of the ultimate vesting of the property. If the sale of the real property would terminate the trust and vest the proceeds at once in the devisees or legatees, a different question would be presented.
Section 32 of the Real Property Law (Laws of 1896, chap. 547) provides that: "Every future estate shall be void in its creation which shall suspend the absolute power of alienation by any limitation or condition whatever for a longer period than during the continuance of not more than two lives in being at the creation of the estate." Section 33 provides: "Successive estates for life shall not be limited except to persons in being at the creation thereof, and where a remainder shall be limited on more than two successive estates for life all the life estates subsequent to those of the two persons first entitled thereto, shall be void, and on the death of those persons the remainder shall take effect in the same manner as if no other life estates had been created." And section 36 provides: "A contingent remainder shall not be created on a term of years unless the nature of the contingency on which it is limited be such that the remainder must vest in interest during the continuance of not more than two lives in being at the creation of such remainder or on the termination thereof." And by section 2 of the Personal Property Law (Laws of 1897, chap. 417) it is provided that "the absolute ownership of personal property shall not be suspended by any limitation or condition for a longer period than during the continuance and until the termination of not more than two lives in being at the date of the instrument containing such limitation or condition; or, if such instrument be a will, for not more than two lives in being at the death of the testator."
The will gives all of the testator's possessions to his trustees during the minority of his four children, and it is only on the four children arriving at age that the residue or balance is to be divided among them. The absolute ownership of all the personal property contained in the will was thus suspended during the minority of these four children, and the alienation of the real property was also suspended during the same period, unless the executors, under the power of sale, should sell the property, in which event they would be bound to hold the proceeds as personal property until the arrival at age of all four of the testator's children. Under the provisions of the statute the validity of the testamentary provision is to be determined by the legality of the ultimate disposition of the corpus of the estate for which the power of sale or disposition is given. ( Garvey v. McDevitt, 72 N.Y. 556; Stoiber v. Stoiber, 40 App. Div. 156. ) Under this will there is no method by which the trustees could distribute the property bequeathed to them until the termination of the minority of the four children, nor could there be any alienation of the real property and distribution of the proceeds during a like period.
It follows that the will violated the statute in relation to the creation of estates and disposition of personal property, and is, therefore, void, and the judgment must be affirmed, with costs to the plaintiff payable out of the estate.
PATTERSON, P.J., LAUGHLIN, CLARKE and SCOTT, JJ., concurred.
Judgment affirmed, with costs to respondent payable out of the estate.