Willard Bartlett, J.
This suit was brought by the Hew York Life Insurance and Trust Company, as trustee, under an instrument executed by the late Jabez A. Bostwick, and as trustee under his will, to obtain a judgment settling its accounts as such trustee, and determining the manner in which the assets of the trust estate should be distributed.
The trust instrument (which, following the example of counsel, I shall call a trust deed, although it relates solely to personal property) was executed and delivered by Mr. Bostwick on January 13, 1892. It assigned to the Hew York Life Insurance and Trust Company one thousand shares of . Standard Oil Trust certificates to hold during the lifetime of Mr. Bostwick’s daughter, Hellie Bostwick Morrell, and provided that if she should die without leaving a child or children the trust should cease and the certificates should revert and be delivered to Mr. Bostwick or his estate; but that if at the death of his daughter she should leave issue, then the trustees should distribute the said certificates or the proceeds thereof to said issue equally. The trust deed further provided that the trust might be terminated by Mr. Bostwick at any time during his natural life by his giving to the trustee a notice in writing of his desire to terminate the same. Mr. Bostwick died on August 16, 1892, leaving a will which pro
vided that his entire residuary estate should be divided into three equal parts. These parts were devised and bequeathed as follows: One was given to the New York Life Insurance and Trust Company in trust to receive the income therefrom and pay the same to the testator’s wife, Helen C. Bostwick, during her life, and upon her death to pay the same to his daughter, Nellie Bostwick Morrell, during her life, and upon the death of said wife and daughter to distribute the principal to the issue of Nellie Bostwick Morrell in equal shares, or in default of such issue to her next of kin. One part was given to the United States Trust Company in trust to receive the income and pay the same to the testator’s wife, Helen C. Bostwick, during her life, and upon her death to pay the same to his daughter, Fannie E. Bostwick, during her life, and upon the death of said wife and daughter to distribute the principal to the issue of Fannie E. Bostwick in equal shares, or in default of such issue to her next of kin ; and one part was given to the Farmers’ Loan and Trust Company in trust to receive the income and pay the same to the testator’s wife, Helen 0. Bostwick, during her life, and upon her death to pay the same to his son, Alfred C. Bostwick, until he should arrive at the age of twenty-one, and then to distribute onelialf of the principal to the said Albert 0. Bostwick and to continue to pay him the income from the other half during his life, and upon the death of the said son to distribute all of the principal then remaining to the issue of said Albert C. Bostwick in equal shares, or in default of such issue to his next of kin.
Nellie Bostwick Morrell, the daughter for whose benefit the trust deed was made, subsequently married Hamilton W. Cary and became known as Nellie Bostwick Cary. She died intestate on January 19th, 1906, leaving no issue. Her husband, however, survives her and is the administrator of her estate.
The property conveyed to the New York Life Insurance and Trust Company by the trust deed for the benefit of Nellie Bostwick Morrell was not embraced in any specific bequest contained in Mr. Bosfcwick’s will; and consequently' it has
become a part of his residuary estate by reason of the death of the daughter without issue.
The question presented for our determination is whether the disposition which Mr. Bostwick attempted to make of this personal property involved a suspension of the absolute ownership thereof sucli as is forbidden by the statutes of this state. The learned judge who heard the case at Special Term held that it did not. A majority of the members of the Appellate Division reached a different conclusion. It appears to have been conceded throughout the litigation that neither the trust deed nor the will, if considered by itself, would operate to suspend the absolute ownership beyond the term fixed by the statute, but the learned Appellate Division held that the deed and will must be read together as indicating a general scheme, and that thus read they created an unlawful suspension of the absolute ownership of the personal property in question.
It is difficult to find anything to sustain this view as to the relationship of these two instruments either m the facts of the case or in the rules of law applicable to the construction and interpretation of the deed of trust. There is no finding by the trial court to the effect that the deed and will were executed in furtherance of a scheme to tie up the fund for a longer period than that permitted by the law, as is suggested in the prevailing opinion at the Appellate Division ; nor do the contents of the instruments themselves necessarily indicate any such intent. I am equally at a loss to find any warrant for tho conclusion that although the deed and will were executed at different dates “they both speak from the same moment, to wit, tho death of Mr. Bostwick.” Whatever may have been accomplished by the trust deed was accomplished immediately upon its delivery to the trustee, accompanied by a transfer of the property therein mentioned. All the rights that JSTellie Bostwick Morrell ever acquired in the trust fund she acquired at that moment. There was no postponement of the enjoyment of those rights until the death of Mr. Bostwick. This view is not inconsistent with anything this court said in
Matter of Bostwick
(160 N. Y. 489), in which case it was
determined that this trust deed did not constitute an absolute gift of the grantor’s property so as to exempt the transfer from taxation. It is perfectly true, as Judge Gray then said, that it was not an “ out and out gift; ” but nevertheless it became instantly effective, upon its execution'and delivery and the transfer of the property, to vest the beneficiary with a right to the income thereof, which could only be divested by the exercise of the power of revocation reserved to the grantor. It has been expressly decided by this court more than once that the presence of a full power of revocation in an instrument of this character does not render it testamentary.
(Robb
v.
Washington and Jefferson College,
185 N. Y. 485, 493.) In the case cited, Chief Judge Cullek clearly points out the distinction between a testamentary instrument and a deed, in correction of a misapprehension which has frequently misled the courts on this subject; and what he said is as applicable to the case at bar as it was to the instrument there under consideration. Furthermore, it appears to me that we should disregard a sound principle of construction if we held that two instruments not necessarily connected must be read together with the result that their provisions become invalid, where there is no question of their validity if the instruments be considered separate and apart from one another. This would amount to nothing less than construction for the sake of destruction.
Premising then that the trust deed was not testamentary in its nature and that it took effect at or about the date of its execution, January 13,1892, what were the rights of Mr.
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Willard Bartlett, J.
This suit was brought by the Hew York Life Insurance and Trust Company, as trustee, under an instrument executed by the late Jabez A. Bostwick, and as trustee under his will, to obtain a judgment settling its accounts as such trustee, and determining the manner in which the assets of the trust estate should be distributed.
The trust instrument (which, following the example of counsel, I shall call a trust deed, although it relates solely to personal property) was executed and delivered by Mr. Bostwick on January 13, 1892. It assigned to the Hew York Life Insurance and Trust Company one thousand shares of . Standard Oil Trust certificates to hold during the lifetime of Mr. Bostwick’s daughter, Hellie Bostwick Morrell, and provided that if she should die without leaving a child or children the trust should cease and the certificates should revert and be delivered to Mr. Bostwick or his estate; but that if at the death of his daughter she should leave issue, then the trustees should distribute the said certificates or the proceeds thereof to said issue equally. The trust deed further provided that the trust might be terminated by Mr. Bostwick at any time during his natural life by his giving to the trustee a notice in writing of his desire to terminate the same. Mr. Bostwick died on August 16, 1892, leaving a will which pro
vided that his entire residuary estate should be divided into three equal parts. These parts were devised and bequeathed as follows: One was given to the New York Life Insurance and Trust Company in trust to receive the income therefrom and pay the same to the testator’s wife, Helen C. Bostwick, during her life, and upon her death to pay the same to his daughter, Nellie Bostwick Morrell, during her life, and upon the death of said wife and daughter to distribute the principal to the issue of Nellie Bostwick Morrell in equal shares, or in default of such issue to her next of kin. One part was given to the United States Trust Company in trust to receive the income and pay the same to the testator’s wife, Helen C. Bostwick, during her life, and upon her death to pay the same to his daughter, Fannie E. Bostwick, during her life, and upon the death of said wife and daughter to distribute the principal to the issue of Fannie E. Bostwick in equal shares, or in default of such issue to her next of kin ; and one part was given to the Farmers’ Loan and Trust Company in trust to receive the income and pay the same to the testator’s wife, Helen 0. Bostwick, during her life, and upon her death to pay the same to his son, Alfred C. Bostwick, until he should arrive at the age of twenty-one, and then to distribute onelialf of the principal to the said Albert 0. Bostwick and to continue to pay him the income from the other half during his life, and upon the death of the said son to distribute all of the principal then remaining to the issue of said Albert C. Bostwick in equal shares, or in default of such issue to his next of kin.
Nellie Bostwick Morrell, the daughter for whose benefit the trust deed was made, subsequently married Hamilton W. Cary and became known as Nellie Bostwick Cary. She died intestate on January 19th, 1906, leaving no issue. Her husband, however, survives her and is the administrator of her estate.
The property conveyed to the New York Life Insurance and Trust Company by the trust deed for the benefit of Nellie Bostwick Morrell was not embraced in any specific bequest contained in Mr. Bosfcwick’s will; and consequently' it has
become a part of his residuary estate by reason of the death of the daughter without issue.
The question presented for our determination is whether the disposition which Mr. Bostwick attempted to make of this personal property involved a suspension of the absolute ownership thereof sucli as is forbidden by the statutes of this state. The learned judge who heard the case at Special Term held that it did not. A majority of the members of the Appellate Division reached a different conclusion. It appears to have been conceded throughout the litigation that neither the trust deed nor the will, if considered by itself, would operate to suspend the absolute ownership beyond the term fixed by the statute, but the learned Appellate Division held that the deed and will must be read together as indicating a general scheme, and that thus read they created an unlawful suspension of the absolute ownership of the personal property in question.
It is difficult to find anything to sustain this view as to the relationship of these two instruments either m the facts of the case or in the rules of law applicable to the construction and interpretation of the deed of trust. There is no finding by the trial court to the effect that the deed and will were executed in furtherance of a scheme to tie up the fund for a longer period than that permitted by the law, as is suggested in the prevailing opinion at the Appellate Division ; nor do the contents of the instruments themselves necessarily indicate any such intent. I am equally at a loss to find any warrant for tho conclusion that although the deed and will were executed at different dates “they both speak from the same moment, to wit, tho death of Mr. Bostwick.” Whatever may have been accomplished by the trust deed was accomplished immediately upon its delivery to the trustee, accompanied by a transfer of the property therein mentioned. All the rights that JSTellie Bostwick Morrell ever acquired in the trust fund she acquired at that moment. There was no postponement of the enjoyment of those rights until the death of Mr. Bostwick. This view is not inconsistent with anything this court said in
Matter of Bostwick
(160 N. Y. 489), in which case it was
determined that this trust deed did not constitute an absolute gift of the grantor’s property so as to exempt the transfer from taxation. It is perfectly true, as Judge Gray then said, that it was not an “ out and out gift; ” but nevertheless it became instantly effective, upon its execution'and delivery and the transfer of the property, to vest the beneficiary with a right to the income thereof, which could only be divested by the exercise of the power of revocation reserved to the grantor. It has been expressly decided by this court more than once that the presence of a full power of revocation in an instrument of this character does not render it testamentary.
(Robb
v.
Washington and Jefferson College,
185 N. Y. 485, 493.) In the case cited, Chief Judge Cullek clearly points out the distinction between a testamentary instrument and a deed, in correction of a misapprehension which has frequently misled the courts on this subject; and what he said is as applicable to the case at bar as it was to the instrument there under consideration. Furthermore, it appears to me that we should disregard a sound principle of construction if we held that two instruments not necessarily connected must be read together with the result that their provisions become invalid, where there is no question of their validity if the instruments be considered separate and apart from one another. This would amount to nothing less than construction for the sake of destruction.
Premising then that the trust deed was not testamentary in its nature and that it took effect at or about the date of its execution, January 13,1892, what were the rights of Mr. Bostwick, the grantor therein, in respect to the property which was the subject-matter of the trust 2 The deed reserved to him the reversion thereof in the event of the death of the beneficiary leaving no issue. This was an estate in expectancy (Beal Property Law, Laws of 1896, ch. 547, § 26, formerly B. S. pt. 2, ch. 1, tit. 2, § 9, § 35). But an expectant estate “ is descendible, devisable and alienable in the same manner as an estate in possession.” (Beal Property Law, § 49, B. S. as above cited, § 35.) Does the word “ alienable ” in this statu
tory provision empower the owner of an expectant estate to deal with the same in all respects as he might if he were actually in possession of the property representing the estate, or is the term used in the statute in a restricted sense and only as enabling the owner of an expectant estate to convey merely his expectancy and not to deal with the property represented thereby as if he were its absolute owner ?
This question has been answered twice by the courts of this state; once by the General Term of the Supreme Court in the first department in an opinion expressly approved by this court
(Livingston
v.
N. Y. Life Ins. & T. Co.,
36 N. Y. S. R. 506; Same Case,
sub nom. McCurdy, Exr.
v.
Same,
151 N. Y. 667); and again by this court itself in
Genet
v.
Hunt
(113 N. Y. 159). In the
Livingston
case two brothers owned reversions in a trust fund for the benefit of their mother during the joint lives of their mother and her husband. They executed a trust deed to the trustee of the fund whereby they conveyed to the trustee their expectant estates upon conditions which would result in suspending the absolute ownership during both their lives. The General Term, speaking through Vak Brukt, P. J., upheld the right of the brothers under section 35 of the Revised Statutes (now § 49 of the Real Property Law) to dispose of their expectant estates as they had done, notwithstanding the fact that the result might be to suspend the absolute ownership of the trust estate during two additional lives beyond that of the original beneficiary, saying :
“
The person in whom an expectant estate is vested has the same control over 'the interest which he thus possesses as though he were in actual possession of the property representing the estate. He may deal with it in precisely the same manner.”
/ In
Genet
v.
Hunt (supra)
the trust deed under consideration was made by Caroline M. Field in contemplation of her marriage with George S. Riggs, its purpose being to secure to her the income of her property during the marriage free from the control of her husband and to secure the principal to her if she survived, or in the event of her death to her appointees
by will or to her heirs. After declaring that the deed created a valid trust for the joint lives of Mrs. Biggs and her husband, Judge Andrews, who wrote for a majority of the court, observes: “ If Mrs. Biggs remained the absolute owner of the property after the execution of the trust deed subject only to the estate of the trustees for her life the trusts in the will would be valid.
The reversion in the case supposed would be property which she could grant or devise and limit future estates thereon in her discretion, subject only to the restriction that they must vest in absolute ownership within two lives in being at their
creation.” Judges Earl, Finch and Peckham concurred in this opinion. Judges Gray and Danforth dissented, but placed their dissent on a ground which necessarily involved concurrence in the correctness of the proposition which I have quoted from the opinion of Judge Andrews. Chief Judge Bhg-er did not vote.
We have here a clear and unequivocal expression of opinion upon the question of law which is the turning point in the case at bar. It may be said that it was not absolutely necessary to a determination of the appeal; but it was germane to the consideration and discussion of the issues involved and it undoubtedly represents the deliberate conclusion of this court as then constituted upon the meaning and effect of the statute declaring what are the qualities of expectant estates. It is in precise accordance with a previous judicial utterance by the appellate branch of the Supreme Court made through one of the ablest lawyers who ever sat upon that bench. It seems to me to be the natural, if not the necessary, interpretation of the statutory provision. And if so, -I do not see why we should hesitate to follow it simply because it has not the same authority as it would have if a determination of the precise questio'n had been essential to the determination.
The views which I have expressed lead to the conclusion that the learned court at Special Term was right in treating the trust deed and the will as separate instruments differing essentially in their character and in holding that the validity of the testamentary disposition of the trust property as a part
of the testator’s residuary estate was not affected by the deed of trust. It must freely be conceded that this conclusion permits the owner of an expectant estate in personal property to suspend the absolute ownership for more than two lives in being by means of different instruments; but this result is by no means so alarming in contemplation as counsel seem to apprehend. Most attempts to suspend the absolute ownership of personal property for more than two lives in being or to evade the rule against perpetuities applicable to real estate are made by means of wills rather than by means of deeds; and a will, whatever its form, can never be more than one instrument in the view of the law. At most, even through the agency of trust instruments relative to estates in expectancy, the absolute ownership can be suspended only during lives
in being
and this was permitted by the common law. The question involved in this case is one of technical law pure and simple, and as Professor Gray has well said in his work on the Rule of Perpetuities: “ In no .part of the law is the reasoning so mathematical in its character; none has so small a human element.”
The judgment of the Appellate Division should be reversed and that of the Special Term affirmed, with costs to all parties appearing in this court and filing briefs, payable out of the fund.
Cullen, Ch. J., Grat, Edward T. Bartlett, Haight, Werner and Hiscock, JJ., concur.
Judgment accordingly.