Bartlett, J.
This is an action to construe a will and the courts below have held that the widow of testator’s son was provided for in a trust, void as to her, for the reason that it created an illegal suspension of the power of alienation. In other words, the will is held to have created but a single trust, and that it is only invalid as to the widow of the son, but stands for all other purposes. We are unable to adopt this construction, and before deciding the effect that must be given to the instrument, it is proper to consider the situation of the testator at the time he decided upon the testamentary scheme which appears not only on the face of the will, but is justified by those considerations that must have acted upon his mind in forming that intention which is manifested in the final disposition of his estate.
The testator was a prominent physician, possessed of an estate consisting of several farms, a hotel, five dwelling houses, a homestead and considerable personal property. He left two children, a married daughter and an unmarried son; the daughter had two minor children; the son was dissipated. The testator was a widower, but his deceased wife’s sister, Euretta Miles, resided in his family.
If anything is absolutely clear in the scheme of the will it is the intention of the testator that his property should follow his blood in the ultimate disposition thereof, and that the widow of his son, if such a contingency ever presented as the death of the son leaving a widow and no children, should be entitled to a certain portion of the income of the estate only so long as she remained unmarried.
The testator was confronted by the task of dealing with two distinct and entirely different situations.' The first was to determine how he should provide for his unfortunate son, about thirty-one years of age at the time the will was executed in 1884, who might survive for many years, marry, have children, and possibly forsake his evil habits. The second was to
provide for a daughter with a living husband and minor children, and secure a portion of his property to the latter.
In view of this state of affairs it was natural that the testator, when he came tó dispose of the residue of his estate, should seek to carry out his scheme by the erection of two distinct trusts. An inspection of the will discloses a plan in entire harmony with the motives that influenced the testator when he drew it.
In the first clause he devises the homestead to his son for life, and after his death, if he leaveá a wife with children, a life estate in wife and fee to children. If the son died childless, the testator’s daughter took a life estate and the fee went to her children.
We have here a clear indication of the manner in which the testator proposed to deal with tlie widow of the son. He seemed to contemplate her existence as not only possible, but probable, and carefully guards the fee of his real estate so that it shall follow his blood. This provision as to the homestead shows the affectionate regard and solicitude entertained by the testator for his son.
The second clause bequeaths certain valuable personal property to the son, and is only important as emphasizing testator’s love for him. The third clause creates a separate trust in favor of the son, and the fourth clause erects still another dealing with the interests of the testator’s daughter, husband and" children.
The third clause is in one respect inartificially drawn, but there is no serious difficulty in construing it, and the intention of the testator is clear. It opens with the formal words devising and bequeathing the residue of his property to his executors for the purposes of certain trusts.
These words may be treated as merely introductory, as they, are followed by apt language in the third and fourth clauses creating separate trusts, each embracing one-half of the residuary estate. These trusts are not .only separated by the arrangement of the will on its face, but in substance and subject-matter.
The trust for the son opens with the following language: “ The equal one-half of said rest, residue and remainder of my said property and estate I will, devise and bequeath to my said executors and their successors, in trust, to receive the rents, issues, income and profits (including one-half of the interest on moneys invested) thereof, and pay and apply the same to and for the use of my son, Rhea B. Pomeroy, until he shall arrive at the age of forty-five years, if he shall so long survive, or in case my said son Rhea should not live to reach the age of forty-five years, then to apply the same to the use of my said son during his life.”
As the son died before he attained the age of forty-five years, we need not examine those provisions regulating the manner in which the trustees were to deal with him and his interests after he attained that age. It suffices to say that the trust was measured by the duration of his life only. The trust provided that the executors could sell no real estate without the son’s consent, and he was to advise as to rebuilding and repairs.
It also provided that, if the son died leaving a child or children, the executors should convey the half of the residue of his estate to such child or children absolutely.
This is of no importance save as it still further shows the-regard which the testator liad for his son and his children, if any should be born to him.
The son died childless, but he left a widow, and this brings us to the disputed clause in the will. It reads: “ If he, in such event of his death, within the period last aforesaid ” (forty-five years),- “ should leave no child or children him surviving, but should leave a wife him surviving, then she is to have and I devise and bequeath to her one-half of the income of the said half of the rest; residue and remainder of my said property, so long as she shall remain his widow, unmarried; the other one-half of said income is to be held by my said executors or their successors, and paid by them to and for the use of my daughter, Eliza A. McIntyre. In case the wife of my said son should marry again, then the share of said
income so bequeathed to her is to go to my daughter, Eliza A. • McIntyre, if she then survives; if not, to her children.”
In' the courts below the trust for the daughter in the fourth clause, which conveys to the executors in separate and apt words the other half of the residué of the estate in trust for the benefit of the daughter, including her husband and children, is blended with the son’s trust and treated as a single trust, and the clause just quoted in favor of the son’s widow is declared void, for the reason that it contains an attempted suspension of the power of alienation of a portion of testator’s property beyond the period permitted by statute, as the. son did not marry until after the death of the father, and there was the possibility that he might take as wife one not in being at testator’s death.
We are not called upon to pass upon the correctness of this decision, supported as it is claimed by
Schettler
v.
Smith
(41 N. Y.
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Bartlett, J.
This is an action to construe a will and the courts below have held that the widow of testator’s son was provided for in a trust, void as to her, for the reason that it created an illegal suspension of the power of alienation. In other words, the will is held to have created but a single trust, and that it is only invalid as to the widow of the son, but stands for all other purposes. We are unable to adopt this construction, and before deciding the effect that must be given to the instrument, it is proper to consider the situation of the testator at the time he decided upon the testamentary scheme which appears not only on the face of the will, but is justified by those considerations that must have acted upon his mind in forming that intention which is manifested in the final disposition of his estate.
The testator was a prominent physician, possessed of an estate consisting of several farms, a hotel, five dwelling houses, a homestead and considerable personal property. He left two children, a married daughter and an unmarried son; the daughter had two minor children; the son was dissipated. The testator was a widower, but his deceased wife’s sister, Euretta Miles, resided in his family.
If anything is absolutely clear in the scheme of the will it is the intention of the testator that his property should follow his blood in the ultimate disposition thereof, and that the widow of his son, if such a contingency ever presented as the death of the son leaving a widow and no children, should be entitled to a certain portion of the income of the estate only so long as she remained unmarried.
The testator was confronted by the task of dealing with two distinct and entirely different situations.' The first was to determine how he should provide for his unfortunate son, about thirty-one years of age at the time the will was executed in 1884, who might survive for many years, marry, have children, and possibly forsake his evil habits. The second was to
provide for a daughter with a living husband and minor children, and secure a portion of his property to the latter.
In view of this state of affairs it was natural that the testator, when he came tó dispose of the residue of his estate, should seek to carry out his scheme by the erection of two distinct trusts. An inspection of the will discloses a plan in entire harmony with the motives that influenced the testator when he drew it.
In the first clause he devises the homestead to his son for life, and after his death, if he leaveá a wife with children, a life estate in wife and fee to children. If the son died childless, the testator’s daughter took a life estate and the fee went to her children.
We have here a clear indication of the manner in which the testator proposed to deal with tlie widow of the son. He seemed to contemplate her existence as not only possible, but probable, and carefully guards the fee of his real estate so that it shall follow his blood. This provision as to the homestead shows the affectionate regard and solicitude entertained by the testator for his son.
The second clause bequeaths certain valuable personal property to the son, and is only important as emphasizing testator’s love for him. The third clause creates a separate trust in favor of the son, and the fourth clause erects still another dealing with the interests of the testator’s daughter, husband and" children.
The third clause is in one respect inartificially drawn, but there is no serious difficulty in construing it, and the intention of the testator is clear. It opens with the formal words devising and bequeathing the residue of his property to his executors for the purposes of certain trusts.
These words may be treated as merely introductory, as they, are followed by apt language in the third and fourth clauses creating separate trusts, each embracing one-half of the residuary estate. These trusts are not .only separated by the arrangement of the will on its face, but in substance and subject-matter.
The trust for the son opens with the following language: “ The equal one-half of said rest, residue and remainder of my said property and estate I will, devise and bequeath to my said executors and their successors, in trust, to receive the rents, issues, income and profits (including one-half of the interest on moneys invested) thereof, and pay and apply the same to and for the use of my son, Rhea B. Pomeroy, until he shall arrive at the age of forty-five years, if he shall so long survive, or in case my said son Rhea should not live to reach the age of forty-five years, then to apply the same to the use of my said son during his life.”
As the son died before he attained the age of forty-five years, we need not examine those provisions regulating the manner in which the trustees were to deal with him and his interests after he attained that age. It suffices to say that the trust was measured by the duration of his life only. The trust provided that the executors could sell no real estate without the son’s consent, and he was to advise as to rebuilding and repairs.
It also provided that, if the son died leaving a child or children, the executors should convey the half of the residue of his estate to such child or children absolutely.
This is of no importance save as it still further shows the-regard which the testator liad for his son and his children, if any should be born to him.
The son died childless, but he left a widow, and this brings us to the disputed clause in the will. It reads: “ If he, in such event of his death, within the period last aforesaid ” (forty-five years),- “ should leave no child or children him surviving, but should leave a wife him surviving, then she is to have and I devise and bequeath to her one-half of the income of the said half of the rest; residue and remainder of my said property, so long as she shall remain his widow, unmarried; the other one-half of said income is to be held by my said executors or their successors, and paid by them to and for the use of my daughter, Eliza A. McIntyre. In case the wife of my said son should marry again, then the share of said
income so bequeathed to her is to go to my daughter, Eliza A. • McIntyre, if she then survives; if not, to her children.”
In' the courts below the trust for the daughter in the fourth clause, which conveys to the executors in separate and apt words the other half of the residué of the estate in trust for the benefit of the daughter, including her husband and children, is blended with the son’s trust and treated as a single trust, and the clause just quoted in favor of the son’s widow is declared void, for the reason that it contains an attempted suspension of the power of alienation of a portion of testator’s property beyond the period permitted by statute, as the. son did not marry until after the death of the father, and there was the possibility that he might take as wife one not in being at testator’s death.
We are not called upon to pass upon the correctness of this decision, supported as it is claimed by
Schettler
v.
Smith
(41 N. Y. 328), as the existence of two distinct trusts renders it unnecessary, but we do not wish to be regarded as yielding even an implied assent to the decision of the court below, or the binding force of the authority cited, by reason of our resort to a different construction of this will.
Treating the trust for the benefit of the son as distinct from his sister’s trust, we have now to consider the effect of the son’s death upon the principal of the fund.
A reading of the provisions for the benefit of the son’s widow, that we have already quoted in full, shows that when the testator vested in the widow the right to one-half of the income of the trust estate during her widowhood or life, if she never remarried, he uses very different language than that employed by him when he secures the other half of the income of this trust share to his daughter.
When dealing with the son’s widow he says,
“
she is to have and I devise and bequeath to her,” etc. As to the other half of the income he says, “ it is to be held by my said executors or their successors and paid by them to and for the use of my daughter, Eliza A. McIntyre.”
The legal effect of the son’s death was to terminate the
trust for his benefit, and the devise and bequest.of one-half of the income of the principal theretofore tied up in the trust, to his widow, vested in her a legal estate in one half of the principal, real and personal, to wit, a life estate during her widowhood, under the familiar -principle that a gift of the rents and profits of land, or gift of the income arising from personal property, vests such an estate in the devisee or legatee as conforms to the evident intention of the testator.
(Paterson
v. Ellis, 11 Wend. 298;
Smith
v.
Post,
2 Edw. Ch. 527;
Hatch
v.
Bassett,
52 N. Y. 362;
Locke
v.
Farmers' Loan
&
Trust Co.,
140 N. Y. 146.)
During the time the son’s -widow remains unmarried, which may be her life, she is, by virtue of her life estate, a tenant in common with the owners of the principal of the share which was released from the trust for the benefit of the son by his death.
The fact that the executors, as such, may have to deal with the income of the vested interests in order to carry out the provisions of the will does not create any illegal suspension.
(Gilman
v.
Reddington,
24 N. Y. 9-18.)
It is clear that the provision for annual repairs of the homestead in the first clause of the will, and for the support of Euretta Miles in the sixth clause, and for the erection of a monument in the seventh clause, are no part of the trusts created for the son and daughter respectively, but are general charges upon the entire income of the estate, which must be paid by the executors as such and not by them as trustees.
These charges will of course diminish, the income of the trust estates, and all interests which vested at the termination of the son’s trust are subject to their payment in due proportion.
It is very common to make annuities, or other payments, a charge upon an entire estate without regard to whether it is carved up into trusts or vested interests, and such a lien is a testamentary incumbrance which follows the estate under all the provisions of the will.
We have not considered it essential or proper to decide all
of the questions which were deemed presented by the court below.
This appeal requires us to determine the interest in the estate of the testator of the defendant and appellant, Frances Pomeroy, the widow of Rhea Pomeroy.
This question we have decided.
The judgments of the Special Term and Appellate Division should be reversed and judgment ordered for the appellant Frances Pomeroy in accordance with this decision, with costs to her in all the courts payable out of the estate.
All concur, except Haight, J., absent.
Judgments reversed.