Judgment affirmed on the opinion of Adams, J., delivered at Special Term, with costs and disbursements to respondents and appellant, payable out of the estate.
All concurred; except Adams, J., not sitting.
The following is the opinion of Adams, J., delivered at the Special Term:
Adams, J.:
The plaintiffs, who are the executors of the will in question, in their complaint allege that construction of that instrument, in sev-. eral important particulars, is necessary to the due and proper administration of the estate committed to their charge, but by consent of all parties the only question which is at present, submitted to the court for its adjudication is that which relates to the interest in such estate of the defendant Frances Pomeroy.
In order to clearly appreciate the attitude towards the estate which this defendant occupies it will be necessary to detail, with considerable particularity, the disposition which the testator has attempted to make of his property, and the conditions existing at the time of his death. He died leaving two children, a son and a daughter. The son, Rhea, was a young man of intemperate habits, and the defendant, who is his widow, was a domestic in the testator’s family;There is some reason to suppose that the son’s attachment for her was known to the father, but however this may be, it is a matter of minor consequence.
By the first clause of the will this son is given a life estate in the homestead, with remainder over to his sister, Eliza A. McIntyre, in the event of his dying without children. By the second clause certain specific personal property is given absolutely to the sou, and by' the third, or residuary clause, all the rest, residue and remainder of the testator’s estate, both real and personal, is devised and bequeathed to his executors in trust for the purposes thereinafter named. The trust thus created contemplates, among other things, the payment of [438]*438one-half of the income arising from- the trust estate to Rhea until he shall attain the age of forty-five years, and when that 'period arrives the corpus of his share of such estate is to be transferred to him absolutely, if, in the judgment of the executors, he is then “ a sober man and fit to be entrusted with said property,” but in case of his death before reaching the: age of forty-five years, leaving- a child or children him surviving, the executors are directed to transfer his share of the estate to such child or children, but, in the event of his death within the period last aforesaid, leaving a widow but no child or children, then the will further provides, “ I devise and bequeath to her one-half of the income of said half of the'rest, residue and remainder of my said property so long as she shall remain his widow,” and in case she should marry again her share of such income is given to the daughter, Eliza A. McIntyre, who also receives a life interest in the remaining moiety of. the residuary estate. The will in question bears date the 4th day of August, 1884. The testator died December 14, 1887, leaving considerable real estate, and also' personal property to the amount of at least $14,000.
■Shoi-tly after his father’s death Rhea was inarried to the defendant, and soon thereafter, and prior to his arrival at the age of forty-five, he departed this life, leaving the defendant but no child or children him surviving. The widow, who has never remarried, now insists that by the terms of the will she is entitled to the income, during her life or widowhood, of one-quarter of the residuum of the estate, whatever that may prove to be; and it is the claim thus urged that raises the issue which, in its determination, seems to demand a legal construction of the will in question.
The first proposition suggested by a reading of this instrument is that it contains an attempted suspension of the power of alienation of a portion of the testator’s property beyond the period permitted by the statute.
In other words, that inasmuch as Rhea' did not marry until after the death of his father, there was a life possibly not in being at the time of the testator’s death, and that, consequently, such provision is repugnant to the Statute of Perpetuities, and, therefore, void.
Such, indeed, does seem to be' the law of this State. It is, perhaps, carrying the doctrine to an extreme limit, and it is a rule which will undoubtedly prove a harsh one in many cases, and per[439]*439haps in none more so than in the case under consideration, where it was unquestionably the intention and desire of the testator to make some provision for his son’s wife in the contingency of his marrying and leaving a wife surviving him. But the court cannot concern itself with the operation of any rule. It must apply the law as it finds it, and it is certain that the principle contended for has been adjudicated in a case, the circumstances of which were not unlike those which are here being considered, and that adjudication has, in several instances, been quoted with approval by the court of last resort. (Schettler v. Smith, 41 N. Y. 328; Burill v. Boardman, 43 id. 259; Knox v. Jones, 47 id. 397; Smith v. Edwards, 88 id. 104; Tiers v. Tiers, 98 id. 573; Haynes v. Sherman, 117 id. 437; Underwood v. Curtis, 127 id. 540.)
Recognizing the fact that this court must of necessity be concluded in its determination of this question by the authority first cited, the defendant’s counsel insists that the will is capable of a construction which renders the law of that case inapplicable and suggests that the provision for the defendant be regarded as withdrawn from the trust and treated as an absolute legacy of the one-fourth part of the income of the testator’s estate.
This contention is presented most elaborately and with no little adroitness, certain words and phrases being ingeniously selected which, isolated from their context, would seem to warrant such a construction, and then counsel seeks to fortify his position with the further suggestion that the construction for which he contends would enable the court to regard the obvious intention of the testator. But while anxious to sustain rather than to invalidate every testamentary disposition of property where the intention of the testator is made clearly manifest, the, court cannot, even for the accomplishment of so desirable a result, do violence to certain well-established canons of construction, one of which is that when the general plan or scheme of a testator is ascertained, effect must be given to it, even at the sacrifice of a particular intention which is inconsistent with it. (See opinion of Sutherland, J., Lovett v. Kingsland, 44 Barb. 561-567.) The first endeavor, therefore, must be to determine, if possible, upon what general plan or basis the testator designed the disposition of his estate. Fortunately, the language of his will, taken as a whole, leaves very little room for [440]*440doubt upon this subject, for it requires but a casual examination to reach the conclusion that the prime object which he had in mind, so far as the residuum of his estate is concerned, was the making of a suitable provision for his own children during their lifetime with the ultimate intention of securing to his grandchildren the corpus of the estate; and to this end a trust was created and the trust estate was to consist of the entire, residuum whatever it might be.
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Judgment affirmed on the opinion of Adams, J., delivered at Special Term, with costs and disbursements to respondents and appellant, payable out of the estate.
All concurred; except Adams, J., not sitting.
The following is the opinion of Adams, J., delivered at the Special Term:
Adams, J.:
The plaintiffs, who are the executors of the will in question, in their complaint allege that construction of that instrument, in sev-. eral important particulars, is necessary to the due and proper administration of the estate committed to their charge, but by consent of all parties the only question which is at present, submitted to the court for its adjudication is that which relates to the interest in such estate of the defendant Frances Pomeroy.
In order to clearly appreciate the attitude towards the estate which this defendant occupies it will be necessary to detail, with considerable particularity, the disposition which the testator has attempted to make of his property, and the conditions existing at the time of his death. He died leaving two children, a son and a daughter. The son, Rhea, was a young man of intemperate habits, and the defendant, who is his widow, was a domestic in the testator’s family;There is some reason to suppose that the son’s attachment for her was known to the father, but however this may be, it is a matter of minor consequence.
By the first clause of the will this son is given a life estate in the homestead, with remainder over to his sister, Eliza A. McIntyre, in the event of his dying without children. By the second clause certain specific personal property is given absolutely to the sou, and by' the third, or residuary clause, all the rest, residue and remainder of the testator’s estate, both real and personal, is devised and bequeathed to his executors in trust for the purposes thereinafter named. The trust thus created contemplates, among other things, the payment of [438]*438one-half of the income arising from- the trust estate to Rhea until he shall attain the age of forty-five years, and when that 'period arrives the corpus of his share of such estate is to be transferred to him absolutely, if, in the judgment of the executors, he is then “ a sober man and fit to be entrusted with said property,” but in case of his death before reaching the: age of forty-five years, leaving- a child or children him surviving, the executors are directed to transfer his share of the estate to such child or children, but, in the event of his death within the period last aforesaid, leaving a widow but no child or children, then the will further provides, “ I devise and bequeath to her one-half of the income of said half of the'rest, residue and remainder of my said property so long as she shall remain his widow,” and in case she should marry again her share of such income is given to the daughter, Eliza A. McIntyre, who also receives a life interest in the remaining moiety of. the residuary estate. The will in question bears date the 4th day of August, 1884. The testator died December 14, 1887, leaving considerable real estate, and also' personal property to the amount of at least $14,000.
■Shoi-tly after his father’s death Rhea was inarried to the defendant, and soon thereafter, and prior to his arrival at the age of forty-five, he departed this life, leaving the defendant but no child or children him surviving. The widow, who has never remarried, now insists that by the terms of the will she is entitled to the income, during her life or widowhood, of one-quarter of the residuum of the estate, whatever that may prove to be; and it is the claim thus urged that raises the issue which, in its determination, seems to demand a legal construction of the will in question.
The first proposition suggested by a reading of this instrument is that it contains an attempted suspension of the power of alienation of a portion of the testator’s property beyond the period permitted by the statute.
In other words, that inasmuch as Rhea' did not marry until after the death of his father, there was a life possibly not in being at the time of the testator’s death, and that, consequently, such provision is repugnant to the Statute of Perpetuities, and, therefore, void.
Such, indeed, does seem to be' the law of this State. It is, perhaps, carrying the doctrine to an extreme limit, and it is a rule which will undoubtedly prove a harsh one in many cases, and per[439]*439haps in none more so than in the case under consideration, where it was unquestionably the intention and desire of the testator to make some provision for his son’s wife in the contingency of his marrying and leaving a wife surviving him. But the court cannot concern itself with the operation of any rule. It must apply the law as it finds it, and it is certain that the principle contended for has been adjudicated in a case, the circumstances of which were not unlike those which are here being considered, and that adjudication has, in several instances, been quoted with approval by the court of last resort. (Schettler v. Smith, 41 N. Y. 328; Burill v. Boardman, 43 id. 259; Knox v. Jones, 47 id. 397; Smith v. Edwards, 88 id. 104; Tiers v. Tiers, 98 id. 573; Haynes v. Sherman, 117 id. 437; Underwood v. Curtis, 127 id. 540.)
Recognizing the fact that this court must of necessity be concluded in its determination of this question by the authority first cited, the defendant’s counsel insists that the will is capable of a construction which renders the law of that case inapplicable and suggests that the provision for the defendant be regarded as withdrawn from the trust and treated as an absolute legacy of the one-fourth part of the income of the testator’s estate.
This contention is presented most elaborately and with no little adroitness, certain words and phrases being ingeniously selected which, isolated from their context, would seem to warrant such a construction, and then counsel seeks to fortify his position with the further suggestion that the construction for which he contends would enable the court to regard the obvious intention of the testator. But while anxious to sustain rather than to invalidate every testamentary disposition of property where the intention of the testator is made clearly manifest, the, court cannot, even for the accomplishment of so desirable a result, do violence to certain well-established canons of construction, one of which is that when the general plan or scheme of a testator is ascertained, effect must be given to it, even at the sacrifice of a particular intention which is inconsistent with it. (See opinion of Sutherland, J., Lovett v. Kingsland, 44 Barb. 561-567.) The first endeavor, therefore, must be to determine, if possible, upon what general plan or basis the testator designed the disposition of his estate. Fortunately, the language of his will, taken as a whole, leaves very little room for [440]*440doubt upon this subject, for it requires but a casual examination to reach the conclusion that the prime object which he had in mind, so far as the residuum of his estate is concerned, was the making of a suitable provision for his own children during their lifetime with the ultimate intention of securing to his grandchildren the corpus of the estate; and to this end a trust was created and the trust estate was to consist of the entire, residuum whatever it might be.
It is true that in making provision for the possible contingency that his son would marry and then die' leaving a widow and no children, he uses this language : “ Then she (meaning the widow) is to have, and I devise and bequeath to her, one-lialf of the income of said half of the rest, residue and; remainder,” etc., but how can the meaning which is sought to be given to these words be made to harmonize with the primal idea that his trustees were to take control of all his residuary estate and which is expressed in the phrase. “ All the rest, residue and remainder of .my real and personal property and estate, of every name, kind and nature wheresoever situate * * . * I will, devise and bequeath to my executors hereinafter named,, and their successors, in trust, upon and unto the uses, purposes and trusts hereinafter named?” There are- no succeeding words which, in express terms, withdrew any portion of the residuum from the trust estate, and to imply any such intention upon the part of the testator would result in much confusion and lack of harmony, for in other parts of the will direction is made that from the net income of the estate $100 shall be expended annually in repairs to the homestead; that a monument, costing not to exceed $600, shall be erected and paid for out of the income of the whole' estate, and that the support and maintenance of one Euretta Miles, as well as her funeral expenses, shall be provided for from the same source.
If, then, the provision for the defendant is to be regarded as a - bequest of income, it is certainly subject to proper deductions for the purposes just specified, and these deductions must necessarily be made by some one other than the defendant. The mere statement of this proposition is sufficient, I think, to show quite conclusively that whatever interest the defendant might' have in the estate was ' inseparable from the trust, and if so, then it is impossible to give to the will the construction contended for.
[441]*441The learned counsel for the defendant cites several authorities which, he insists, fully support him in the position he occupies, but it seems to me that it is not a difficult matter to distinguish them from the case in hand. In Mason v. Jones (2 Barb. 229), upon which much stress is apparently laid, the testator had devised to his executors in trust one-half of the estate, from the income of which they were directed to pay certain specific annuities to the annuitants therein mentioned, and in order to uphold the will the court held that several trust funds were created and that the annuities were a charge upon the estate.' But, as has been stated, the rents and profits were not to be distributed among certain beneficiaries, but from that source annuities which were certain in their amount were to be paid to them.
The facts in the case of Griffen v. Ford (1 Bosw. 123) were quite different from those in the present case. There the testator directed his trustees to apply so much of the rents and profits of his estate as might be necessary towards the' support and maintenance of his wife as long as. she remained his widow, and it was held that this was in the nature of an annuity; that it did not effect a suspension of the power of alienation, because it was within the power of the trustees, or of the court to fix upon a specific sum to be set apart for the widow’s support, or it was within her power to accept a gross sum and release the estate. But such is not the case with this defendant for, as has already been shown, her interests in the estate could only be satisfied by transferring to her one-quarter of the net annual income of the estate during her widowhood, which may be equivalent to saying during her lifetime.
The case of Matteson v. Matteson (51 How. Pr. 216) is one in which it appears that the testator created no trust, but gave directly to his wife one-half of all the income of his real and personal estate, which, of course, amounts to nothing more than a charge upon the estate and does not suspend the power of alienation. This would be ample authority for the defendant if, as claimed, her interest in the testator’s estate were not affected by, and embraced in, the trust.
To epitomize the whole matter, I am persuaded that the will under consideration- must be construed to contain a trust which embraces the defendant’s interest in the estate; that such trust is [442]*442one expressly'recognized, by the statute (1 R. S. 728, § 55, subd. 3); that the necessary effect thereof upon so much of the estate, as-would otherwise belong to the defendant, is to create an illegal suspension of the ¡rower of alienation as to such portion; that upon the death of Rhea Pomeroy, one-quarter of the residuary estate of Dr. Pomeroy became the absolute property of his daughter,. A. Eliza Pomeroy, and that she was likewise entitled to the income from the remaining quarter during her lifetime.
Further construction does not seem to be required by the exigencies of the case, and, therefore, judgment' is ordered in accordance with the views herein expressed,, with costs to both parties to be paid out of the estate.