Hiscook, J.
The substantial questions presented for our decision on this appeal are two in number. • The primary one is whether a certain clause in the codicil of the testator Sands directing a violation of the prohibition against undue suspension of the power of alienation ever took effect so as to produce intestacy as to part of his estate. The second one is whether, even if this question as an original one could be answered in the negative, those contending for and who would be benefited by such answer are so bound by a former adjudication to a contrary conclusion that they may not now escape. The Appellate Division has decided the last question in the negative and by a divided vote has answered the first one in the affirmative. While agreeing with its decision on the second question we find ourselves unable to agree with that made by it on the first one.
Although set forth in the foregoing statement of facts, for convenience we shall again quote in this connection the disputed clause found in testator’s codicil which reads: “ It is my will that when my youngest child attains the age of twenty-one years a sum of thirty thousand dollars be set apart by my executors before my residuary estate is divided, for the benefit of my wife, provided she remains my widow, and that said sum shall be invested for her benefit, and the interest thereon paid over to her during her natural life, and at her death the principal to revert to my estate.”
This clause is related to and must be construed with reference to the tenth clause of the will also heretofore quoted, which in substance directed that when the testator’s youngest child attained its majority all of the residue of his estate should be divided equally between his wife, provided she had remained his widow, and her children by him, a separate trust fund being created for each of said persons the income payable during life and the principal on the death of any one to be divided amongst the others, issue taking the share of a deceased parent.
It is conceded that if the third clause of the codicil took effect at all events on the testator’s death and as of that time created a trust, taken in connection with the tenth clause of the will it did permit a suspension of the power of alienation of at least two-thirds of thirty thousand dollars for more than two lives in being. On the other, hand it is or must be conceded if this clause merely directed the setting up of a trust at a specific future day, providing and providing only testator’s widow on that day was still living and a widow, that the contingency thus provided for never having arisen the clause never became effective and the estate is to be administered under the other valid provisions of the will as though it had never been written. The question is, which interpretation shall be placed on the clause and we confess that the decision of that question has not been accompanied by any considerable doubt. It seems quite plain that the latter construction is the one which should be adopted. The language
employed by the testator does not either expressly or by any fair implication create a trust to take effect at his death and at all events. He, judged by what he said, was contemplating a specific event in the future, namely, the survival by his widow still unmarried of the minority of their youngest child, and by language which is quite apt he provided for this particular contingency. If it arose, then and then for the first time,, his executors were authorized to withdraw from the disposition of his residuary already made under clause ten of his will a certain amount of money and apply it to the use of his widow. There is nothing in this language which fairly indicates to us that he intended to create a trust even though this contingency did not arise and which should he applicable in case the wife did not survive the minority of the youngest child, a .condition already amply provided for by the other provisions of his will.
Some other features of the will strengthen the conclusion to which the language of this specific clause leads us. In considering his widow the testator divided the future into two distinct periods, one during the minority of the youngest child and one after. In addition to other things he had provided that his widow should have two-thirds of the income of his estate during this minority. Then he provided still by the will proper that when this minority ended the widow should receive the income of only a quarter of the residuary estate. Later he apparently became solicitous lest this reduction in her income might be too severe and, therefore, by this disputed clause of the codicil he provided for this express contingency of her survival unmarried of the minority of the child directing that she should have the income of an additional thirty thousand dollars. There was no object in his providing for anything else and in our judgment he clearly and decisively limited this clause to this future event and did not intend that the other provisions of his will should in any way be affected or changed by it until and unless such contingency arose, as it never did and never can.
If this view is correct there is, of course, no invalid suspen
sion of the power of alienation in the remainder in the fund of thirty thousand dollars, after the widow is deceased, to his residuary estate and through it to his children. The clause never having taken effect there could be no remainders. The tenth clause of the will completely and legally provided for a disposition of the residuary estate and it remains as originally framed, the clause of the codicil having failed of operation.
We now come to the second question, whether there has been an adjudication against them which prevents the appellants from securing the benefit of the views which we have expressed. The claim that there has been such an adjudication is based on the provisions of the decree admitting to probate and purporting to construe certain provisions of the will in question, and especially upon that provision of the eighth clause of the decree already quoted in the statement of facts whereby it is determined that the provision of the will (third clause of the codicil) for the reversion of the said legacy to the residuary estate upon her (the widow’s) death or remarriage, after the majority, or decease before obtaining majority, of Morton Harcourt Sands, is invalid. It frankly may be admitted that this question is a closer one, and that a forcible argument may be made as it has been made on either side thereof. The genera] question whether there was an adjudication of the question now before us resolves itself into the other one, whether the surrogate did intend or attempt to decide whether the third clause of the codicil created a trust taking effect on the testator’s death and at all events, and, therefore, involving an undue suspension, or whether he intended and attempted simply to pass on the validity of said clause on the assumption that it did create such a trust, and without deciding the underlying question whether it did so create one or not. After proper consideration we have concluded to adopt the latter view and treat the decree as not adjudicating the proposition now pressed on our attention that here was a clause only to take effect on a certain contingency which never happened. The pleadings in the proceeding before the surrogate were
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Hiscook, J.
The substantial questions presented for our decision on this appeal are two in number. • The primary one is whether a certain clause in the codicil of the testator Sands directing a violation of the prohibition against undue suspension of the power of alienation ever took effect so as to produce intestacy as to part of his estate. The second one is whether, even if this question as an original one could be answered in the negative, those contending for and who would be benefited by such answer are so bound by a former adjudication to a contrary conclusion that they may not now escape. The Appellate Division has decided the last question in the negative and by a divided vote has answered the first one in the affirmative. While agreeing with its decision on the second question we find ourselves unable to agree with that made by it on the first one.
Although set forth in the foregoing statement of facts, for convenience we shall again quote in this connection the disputed clause found in testator’s codicil which reads: “ It is my will that when my youngest child attains the age of twenty-one years a sum of thirty thousand dollars be set apart by my executors before my residuary estate is divided, for the benefit of my wife, provided she remains my widow, and that said sum shall be invested for her benefit, and the interest thereon paid over to her during her natural life, and at her death the principal to revert to my estate.”
This clause is related to and must be construed with reference to the tenth clause of the will also heretofore quoted, which in substance directed that when the testator’s youngest child attained its majority all of the residue of his estate should be divided equally between his wife, provided she had remained his widow, and her children by him, a separate trust fund being created for each of said persons the income payable during life and the principal on the death of any one to be divided amongst the others, issue taking the share of a deceased parent.
It is conceded that if the third clause of the codicil took effect at all events on the testator’s death and as of that time created a trust, taken in connection with the tenth clause of the will it did permit a suspension of the power of alienation of at least two-thirds of thirty thousand dollars for more than two lives in being. On the other, hand it is or must be conceded if this clause merely directed the setting up of a trust at a specific future day, providing and providing only testator’s widow on that day was still living and a widow, that the contingency thus provided for never having arisen the clause never became effective and the estate is to be administered under the other valid provisions of the will as though it had never been written. The question is, which interpretation shall be placed on the clause and we confess that the decision of that question has not been accompanied by any considerable doubt. It seems quite plain that the latter construction is the one which should be adopted. The language
employed by the testator does not either expressly or by any fair implication create a trust to take effect at his death and at all events. He, judged by what he said, was contemplating a specific event in the future, namely, the survival by his widow still unmarried of the minority of their youngest child, and by language which is quite apt he provided for this particular contingency. If it arose, then and then for the first time,, his executors were authorized to withdraw from the disposition of his residuary already made under clause ten of his will a certain amount of money and apply it to the use of his widow. There is nothing in this language which fairly indicates to us that he intended to create a trust even though this contingency did not arise and which should he applicable in case the wife did not survive the minority of the youngest child, a .condition already amply provided for by the other provisions of his will.
Some other features of the will strengthen the conclusion to which the language of this specific clause leads us. In considering his widow the testator divided the future into two distinct periods, one during the minority of the youngest child and one after. In addition to other things he had provided that his widow should have two-thirds of the income of his estate during this minority. Then he provided still by the will proper that when this minority ended the widow should receive the income of only a quarter of the residuary estate. Later he apparently became solicitous lest this reduction in her income might be too severe and, therefore, by this disputed clause of the codicil he provided for this express contingency of her survival unmarried of the minority of the child directing that she should have the income of an additional thirty thousand dollars. There was no object in his providing for anything else and in our judgment he clearly and decisively limited this clause to this future event and did not intend that the other provisions of his will should in any way be affected or changed by it until and unless such contingency arose, as it never did and never can.
If this view is correct there is, of course, no invalid suspen
sion of the power of alienation in the remainder in the fund of thirty thousand dollars, after the widow is deceased, to his residuary estate and through it to his children. The clause never having taken effect there could be no remainders. The tenth clause of the will completely and legally provided for a disposition of the residuary estate and it remains as originally framed, the clause of the codicil having failed of operation.
We now come to the second question, whether there has been an adjudication against them which prevents the appellants from securing the benefit of the views which we have expressed. The claim that there has been such an adjudication is based on the provisions of the decree admitting to probate and purporting to construe certain provisions of the will in question, and especially upon that provision of the eighth clause of the decree already quoted in the statement of facts whereby it is determined that the provision of the will (third clause of the codicil) for the reversion of the said legacy to the residuary estate upon her (the widow’s) death or remarriage, after the majority, or decease before obtaining majority, of Morton Harcourt Sands, is invalid. It frankly may be admitted that this question is a closer one, and that a forcible argument may be made as it has been made on either side thereof. The genera] question whether there was an adjudication of the question now before us resolves itself into the other one, whether the surrogate did intend or attempt to decide whether the third clause of the codicil created a trust taking effect on the testator’s death and at all events, and, therefore, involving an undue suspension, or whether he intended and attempted simply to pass on the validity of said clause on the assumption that it did create such a trust, and without deciding the underlying question whether it did so create one or not. After proper consideration we have concluded to adopt the latter view and treat the decree as not adjudicating the proposition now pressed on our attention that here was a clause only to take effect on a certain contingency which never happened. The pleadings in the proceeding before the surrogate were
not put in evidence, and, therefore, we are deprived of the help which they might have afforded to us in determining the precise issue which was submitted to the surrogate. It is to be borne in mind that at the time when this decree was made the widow was still living, and, therefore, it was quite natural to view and consider the will on the theory that the contingency mentioned in the third clause of the codicil would arise and then pass on to a construction of its provisions when and after it had become effective. Without refining too much on the presence or absence of some comma or on the most exact meaning of some particular word, but giving to all of his words a fair and reasonable meaning in the light of circumstances then existing, this is apparently what the surrogate did. We find it first adjudged and determined that the
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bequest of thirty thousand dollars to the testator’s widow is made payable
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* * when the youngest child shall attain majority or shall previously die, provided she, testator’s widow * * * shall have, until then, remained his widow.” That is what the surrogate was considering — a clause directing payment of a certain sum at a certain time, provided the widow at that particular time still remained unmarried. Evidently he was” not considering at all the scope or effect of this clause provided the widow did not survive the minority or decease before majority of the child. She was then alive, and his mind contemplated the continuance of present conditions. Then on the theory thus and alone adopted he necessarily reached the conclusion that “ the provision of the will for the reversion of the said legacy to the residuary estate, upon her death or re-marriage, after the majority, or decease before obtaining majority, of Morton Ilarcourt Sands, is invalid.” This we think is all that the decree may fairly be regarded as having adjudicated, that this clause, if assumed to take effect, did illegally suspend the final disposition of the fund after the widow’s death or re-marriage<;
Aside from the fundamental questions which we have discussed, it is urged that the appellants have not taken such
exceptions to the decision of the referee before whom this case was tried on this subject of former adjudication in bar as to permit them to question its consequences. The first conclusion of law of the latter was “ That the decree of the Sur. rogate hereinbefore found to have been made on or about January 25, 1889, is valid and binding and a final adjudication in respect to all the questions and matters determined by the said decree on all the parties thereto and hereto, their heirs, successors, executors, administrators and assigns.” ■ This conclusion and fifth finding of fact on this- subject were not excepted to. Exceptions were taken to various findings of fact and to other conclusions of law which probably were sufficient to enable the appellants to argue the questions which they desire to even if they had neglected to take a necessary exception to the conclusion quoted. We do not, however, think that it was necessary for them to take any exception to this conclusion. It may be conceded that the decree of the surrogate was a binding and final adjudication “in respect to all the questions and matters determined by the said decree.” The very question involved on this branch of the case is whether said decree did decide the question now presented in regard to clause three of the codicil. Having reached the conclusion that it did not adjudicate that question there is nothing in the conclusion of law here presented which bars appellants from urging their views.
The judgments of the Appellate Division and of the Special Term should be reversed and a new trial granted, with costs to each appellant, appearing on appeal and filing briefs, payable out of the estate.
Cullen, Ch. J., Edward T. Bartlett, Haight, Vann, Werner and Willard Bartlett, JJ., concur.
Judgments reversed, etc.