In re the Probate of the Last Will & Testament of Trotter

104 A.D. 188, 93 N.Y.S. 404

Opinion

Willard Bartlett, J.:

We agree.with the learned surrogate

* that the trust attempted to be created, by the 1st ..paragraph of the will is void. He was also right in holding that the invalidity of this trust did not wholly destroy the will. An ineffectual attempt to create a trust estate does not' affect bequests which are otherwise valid. (Everitt v. Everitt, 29 N. Y. 39, 82.) Where a will is good in part and bad in part, the good portions should be preserved if they are separable and capable of being carried out in fulfillment of the general plan of the instrument. (Kalish v. Kalish, 166 N. Y. 377; Smith v. Chesebrough, 176 id. 317.) The Kalish case declares the rule to be firmly established in this State “ that when the several parts of a will are so intermingled or interdependent that the bad cannot be separated from the good, the will must fail altogether; but when it is possible to cut out the invalid provisions, so as to leave intact the parts that are valid, and to preserve the general plan of the testator, such a construction will be adopted as will prevent intestacy, either partial or total as the case may be; ” and in Smith v. Chesebrough it was expressly held that where the invalid parts could be expunged without essentially changing or destroying the testator’s general testamentary scheme, the valid parts of the will should be upheld. We think that the learned surrogate has given the appellants the full benefit of this rule, except in one instance. It seems to ns that the life estate in the Warren street house in Brooklyn, devised to Edgar A. Trotter by the 4th paragraph of the will, may be upheld. The time given" to the'devisee .within which to elect whether he will occupy the premises or not, is not an illegal suspension of the power of alienation, since it must necessarily be exercised within the devisee’s lifetime, and the devise is quite as distinct and separable from the objectionable portions of the will as the other testamentary-provisions which have, as we think, been properly; sustained by the decree under review.

. By the provision in paragraph E of, the 2d codicil, substituted 'for the 16th paragraph of the'will, the division 1 of the testator’s residuary estate is postponed until “the termination, of all life ¡annuities by death of the beneficiaries named.” In behalf of the life annuitants, who are at least four in number, we are asked to construe this provision as directing the distribution of the residuary estate upon the death of each annuitant, instead of after, the death of all, or else to disregard the provision altogether.. The language of the testator is too plain to permit the adoption of,'the construction suggested, and it is not clear that the testator’s intent as to the final disposition of his residuary estate would be carried out, if the provision were wholly disregarded. It is quite conceivable that the residuary legacies might have been different, ’ both as tq beneficiaries and proportionate shares, if the testator had not supposed that the residuary estate could be preserved.intact until the termination of all the life annuities.

Concurring, as we do, in the results reached by the learned surrogate,-with the exception which has been noted, it follows that his decree should be modified so as. to adjpdge the .devise of the' life estatfe to .Edgar A. Trotter to be valid, and as thus modified the decree should be affirmed.

Hieschbeeg, P. J., Woodwabd, Rich and MillEb> JJ., concurred.

Decree of the Surrogate’s Court of Kings county modified; só as to adjudge that the devise of the life estate to Edgar A. Trotter is valid, and as thus modified affirmed, withbut costs, of this, appeal.

The following is the opinion of Hon. James 0. Church, Surrogate: Church, -S.:

The will and codicils which the court is asked to construe are quite lengthy, and hence the question has been elaborately argued and briefed hy the respective counsel.

I shall not attempt to take up the various paragraphs of the will and codicils and discuss the meaning and effect of the same, but shall simply state the result of my examination. '

By the 1st paragraph of the will there was- an equitable conversion of all the testator’s real property, and the entire estate (except a certain lease of some mining property) was given to the executors to'hold the same in trust. There is no attempt to create separate trusts, but there is simply a direction to pay different annuities to different beneficiaries for different times. As it cannot be held that the trusts are separate, the same are all void as improper suspension of the power of alienation..

The various specific bequests contained in the 3d, 5th, 6th, 8th and 9th paragraphs of the will, as modified by the codicils, are valid.

The provision for the charge upon the trust fund, of taxes, etc., of the house .No. 161 Warren street, contained in the 4th paragraph, falls with that trust being declared invalid, but the specific bequests of personalty contained in the 4th paragraph of the will are valid.

The direction of the 12th paragraph releasing certain persons is valid. With the exception of the specific bequests, the estate passes by operation of law to the next of kin.