Morton Trust Co. v. Sands

122 A.D. 691, 107 N.Y.S. 698, 1907 N.Y. App. Div. LEXIS 2534

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 13, 1907
• Status: Published

Opinions

Scott, J.:

This appeal presents but the single question as to the validity of a certain disposition of personal property attempted to. be made by the will"and codicil of Mahlon Sands, deceased. The testator died oh May 1, 1888, leaving a widow, one child by. a former wife, and three children by his second wife, who became his widow. After making certain provisions for his wife and children not necessary to be considered here, he provided by the 10th clause of his will that when his youngest child should attain its majority, his residuary estate should be divided equally between his wife, provided she has remained his widow, and his children by her; that one of such equal proportions should be invested as a separate fund for the benefit of each of said persons, and the income thereof be paid over to each of said persons so long as they lived. At the death of his wife, or of any of the children by her the principal sum hereinbefore provided for should be divided equally between the survivors, except that if any child should die leaving issue such issue are to take the share allotted to the parent. ■ By the 3d clause of the' codicil to the will the testator provided as follows: “ 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.” Thé controversy arises over this legacy of $30,000, and the question presented is whether the disposition attempted to be made -violates the statute

* forbidding the suspension of the absolute ownership of personal property for more that two lives in being. Beading the will and codicil together as we must, it is clear that the testator expected that his wife would survive the majority of his youngest child. In that event the residuary estate, including the $30,000, would be. held by the executors, as trustees, until said youngest child should attain his or her majority; the $30,000 would then be held by his executors as trustees. during the lifetime of his widow and the said sum would then fall into the residuary estate to be divided into parts and held for the respective lives of-the surviving children. There can be no doubt that, if the expectations of the testator liad been fulfilled, the will and codicil would have required, at least as to a part of the $30,000,. that it be held, in trust for more than two lives in being at his death. It so happened, however, that the testator’s widow did not survive until the majority of the youngest child, so that the occasion never arose for setting apart the fund of $30,000, and no illegal suspension of absolute ownership was actually effected. The question is whether or not this fortuitous circumstance cured the vice in the attempted disposition of the fund. In our opinion it did not. The will speaks as of the time of the testator’s death and whether or not it violates the statute against perpetuities must be determined as of that date, and not as of some subsequent date. The rule is inflexible, and has been often repeated and applied that the validity of such an attempted disposition is-to be determined not by the event but by the possibility. As was said in Herzog v. Title Guarantee & Trust Co. (177 N. Y. 86, 99) : “ The rule is that where, by the terms of an instrument- creating an estate, there may be an unlawful suspension of the power of alienation, or of the absolute ownership, the limitation is void, although it turn out by subsequent events that no actual suspension beyond the prescribed period would have taken place. In other words, to render such future estates created by will valid, they must be so limited that in every possible contingency they will absolutely terminate within the period of two lives in being at the death of the testator, or the estate will be held void.” In the light of this plain and explicit statement of the rule we see no escape from the conclusion that the attempted disposition of the fund of $30,000 was void, and that as to that sum the testator died intestate, unless the disposition was saved as to one-third of the sum by the circumstance that, as to that proportion, the reversion after the death of the widow would be held for the life of Morton Harcourt Sands, the youngest child mentioned in the 3d clause of the will, so that as to that proportion the absolute ownership would be suspended in any event only during two lives, to wit, Ms, and that of his mother. The result of holding the disposition valid as to this share would be that Morton Harcourt Sands would receive not only the provision which his father intended for him, but also one-fourth of the larger sum which the testator intended should be enjoyed solely by the other two children of his second marriage. There is nothing to indicate that any such result as this was.within the intention of the testator. The rule in such cases is .to hold the entire disposition invalid. (Benedict v. Webb, 98 N. Y. 460, 466 ; Brown v. Quintard, 177 id. 75, 85.) It is true that the testator’s daughter by the first marriage will thus share in the fund, and that her father did .not intend that she should do so. . This, however, is the legal and necessary consequence of his intestacy as to this fund, resulting from his attempt, to make an unlawful and invalid disposition of it. By holding the disposition invalid in- toto the departure from the testator’s intention will be the result, not of our decree, but of his own act. The' judgment appealed from must be so modified as to decree that Mahlon Sands died intestate as to the whole trust fund of $30,000 attempted to be set up by the 3d clause of the codicil to; his will, and that the whole of said sum shall be paid' over in equal shares to his children by the second wife, and the substituted trustees under the ante-nuptial settlement of Mabel Sands, his child by his first marriage, and as so modified the judgment will be affirmed, with costs in this court to all parties separately appearing and filing briefs,-' payable out of the estate.

Patterson, P. J., and Clarke, J., concurred; Ingraham and Laughlin, JJ., dissented.

See 1 R. S, 773, § 1; revised in Pers. Prop. Law (Laws of 1897, chap. 417), § 2.— [Rep.