People's Trust Co. v. Flynn

Appellate Division of the Supreme Court of New York

People's Trust Co. v. Flynn

113 A.D. 683, 99 N.Y.S. 979, 1906 N.Y. App. Div. LEXIS 1513

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 15, 1906

StatusPublished

Cited by1 cases

This text of 113 A.D. 683 (People's Trust Co. v. Flynn) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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People's Trust Co. v. Flynn, 113 A.D. 683, 99 N.Y.S. 979, 1906 N.Y. App. Div. LEXIS 1513 (N.Y. Ct. App. 1906).

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Opinion

Miller, j.:

■ We desire tb add nothing to the discussion on the former appeal (106 App. Div. 78) except in reference to the point again forcibly- ■ urged upon,us that the widow; having elected to take dower, the provision for her benefit should be eliminated in determining the question of" the suspension of £he power of falienation. - In support of this proposition ou'r attention is called to an excerpt from the opinion of Judge Miller in Bailey v. Bailey (97 N. Y. 460, 471).. But it will be noted that the provision for the wife in that case was wholly independent "of the trust, and the decision was expressly placed upon the ground that the estate given her was assignable and that, therefore, there was no suspension during her l,ife; as stated by the learned counsel for the respondent trust compan yherein,, the Bailey case was cited in Corse v. Chapman (153 N. Y. 466, 473); bilt only upon the proposition that a, life estate given the widow independent of the- trust was alienable. Research- of counsel supplemented by our own has failed tó disclose a single • case, holding that a void testamentary disposition is made valid by the refusal of one of the beneficiaries to accept the benefit of its provisions; oil the contrary, the Court of Appeals- has- frequently reiterated the rule 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.” (Herzog v. Title Guarantee & Trust Co., 177 N. Y. 86, and cases cited on page .99.)

We think this case presents no exception to the rule, arid for this ^reason, in addition'to those stated in our former opinion, affirm the-judgment now appealed from, with costs to all parties to the a-ppeal, payable, out of the fund. ^ ,

Hirschberg, P, J., Jenks, Hooker and Rich, JJ., concurred.-

judgment affirmed, with costs to' all parties to the appeal, payable out of the fund. ' ~

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Miller, j.:

■ We desire tb add nothing to the discussion on the former appeal (106 App. Div. 78) except in reference to the point again forcibly- ■ urged upon,us that the widow; having elected to take dower, the provision for her benefit should be eliminated in determining the question of" the suspension of £he power of falienation. - In support of this proposition ou'r attention is called to an excerpt from the opinion of Judge Miller in Bailey v. Bailey (97 N. Y. 460, 471).. But it will be noted that the provision for the wife in that case was wholly independent "of the trust, and the decision was expressly placed upon the ground that the estate given her was assignable and that, therefore, there was no suspension during her l,ife; as stated by the learned counsel for the respondent trust compan yherein,, the Bailey case was cited in Corse v. Chapman (153 N. Y. 466, 473); bilt only upon the proposition that a, life estate given the widow independent of the- trust was alienable. Research- of counsel supplemented by our own has failed tó disclose a single • case, holding that a void testamentary disposition is made valid by the refusal of one of the beneficiaries to accept the benefit of its provisions; oil the contrary, the Court of Appeals- has- frequently reiterated the rule 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.” (Herzog v. Title Guarantee & Trust Co., 177 N. Y. 86, and cases cited on page .99.)

We think this case presents no exception to the rule, arid for this ^reason, in addition'to those stated in our former opinion, affirm the-judgment now appealed from, with costs to all parties to the a-ppeal, payable, out of the fund. ^ ,

Hirschberg, P, J., Jenks, Hooker and Rich, JJ., concurred.-

judgment affirmed, with costs to' all parties to the appeal, payable out of the fund. ' ~

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113 A.D. 683, 99 N.Y.S. 979, 1906 N.Y. App. Div. LEXIS 1513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peoples-trust-co-v-flynn-nyappdiv-1906.

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