Jenks, J.:
I think that the intendment of the testator was an express trust in the executors; not a power, in trust. (Spitzer v. Spitzer, 38 App. Div. 438; Hubbard v. Housley, 43 id. 129; affd., 160 N. Y. 688; Staples v. Hawes, 39 App. Div. 548.) I think that the provision empowering the executors to sell “at such time within five years after my decease as they may be able to obtain the' sum of fifty thousand dollars in the aggregate therefor,” is not merely advisory but is a limitation, so that they have no authority to sell during that period for a less price. Fowler, on Beal Property Law of the State of New York (2d ed. 479, citing authorities), writes: “ While a peremptory power .of sale does not,per se, suspend the power of alienation, á'power to sell and distribute; does not necessarily relieve a-trust limitation, óthenvise invalid, from the effect of suspending the • power of alienation. So if the execution of even a, power of sale is, by any limitation, unduly postponed, such limitation violates- the rule' against a perpetuity, and is void, unless, the power is of such a nature as to be presently extinguished or merged.- Where the power' may be released by a. person entirely sui juris, it would seem to create a perpetuity.” If the power of alienation w'aá' suspended for a term not measured by lives, then the provision is void. (Brown v. Quintard, 177 N. Y. 75, 82; McGuire v. McGuire, 80 App. Div. 63.) It is bad if, at the time of the creation of .the trust,- there, was á possibility that there could be no sale for the period- of five years. Nelson, Oh.. J., in Hawley v. James (16 Wend. 61, 120), says: “ Now if in either aspect the limitation of the estate might suspend the power of alienation beyond the timé [535]*535allowed by the law, it will be impossible to sustain it, because the rule is well established that a limitation which, by possibility, may create such a suspension, is void.” (See, too, Amory v. Lord, 9 N. Y. 403, 415, citing Hawley v. James, supra; Herzog v. Title Guarantee & Trust Co., 177 N. Y. 86, 99; Trowbridge v. Metcalf, 5 App. Div. 318; affd., 158 N. Y. 682.) In Spitzer v. Spitzer (supra) this court, per Cullen, J., said: “ The will directs that the executor shall sell,' as soon as possible after the testator’s death and within two years from the admission of her will' to probate,, for the best price that can.be realized, but for not less than $18,500 without the written consent of the testator’s sons. It seems to us that this' does not violate the statute against perpetuities. The- trust is to continue until the time of sale. If ¿he authority to sell was unqualifiedly limited by the- provision that the executor should obtain the sum of $18,500 for the property, the trust would be illegal because it might be that the executor never could obtain that price.” (See, too, Stewart v. Hamilton, 37 Hun, 19, 21.) -The learned Special Term was moved to pronounce the provision valid by the consideration that a price well within the fair market value of the thing to be sold is no more than is implied in all powers of sale, and there was no attempt to show that the realty could not fetch, the price named within five- years. But the fact that normally •a voluntary vendor does not sell at a sacrifice, if in any way, germane to the question before us, could indicate nothing more than that this testator thought that the sum which he named might be realized within the five years. And the implied restriction upon an agent or a trustee that he should not make a ■ voluntary sale at a foolish price, is quite- different from an express prohibition that he should sell only at a prescribed, price. The validity of the provision, as I have shown, is not to be determined by probabilities or possibilities of a sale, but the possibility that there could not be a sale.-
- I am of opinion that the power of sale cannot be' defeated or annulled. A specified part of the proceeds of a sale is to be held by the -executors in trust for the lifetime of the testator’s son George. Hence there cannot be a present right in existence to dispose of the entire interest. (Garvey v. McDevitt, 72 N. Y. 556.) In addition, -after the-gifts to his children John and Sarah, and the making of [536]*536the-said trust for the life of George, any residué of the sale, is to he distributed “ amongst Such Free Protestant Church and Evangelical Protestant Churches in sums- not to exceed five hundred dollars fib any one church, as my said .Executors or the majority of them then acting shall, in their discretion deem most deserving and-in need thereof, but-no church shall-be selected to receive any benefit under this provision of my will unless the same, shall be a free church, where no charge is made or fee is required to be'paid-tb occupy the pews or sittings therein, during-diyine services.” How I do riot-find ¡that there is any religious denomination ■ known or. .described- even approximately as the Free Protestant Church. There is a,religious body known as the Evangelical Church, but there is doubt whether.the' testator by the expression “Evangelical” intended any more definite., designation than those churches\which conformed,.to the principles of the gospel of Jesus Christ. (Century Dictionary.) It is to be noted that there is'no territorial limitation whatever, b.ut for aught, expressed all churches within those Terms may be selected by the-executors. .There is serious question under the rule of Read v. Williams (125 N. Y. 560) whether this power is not too indefinite. However this may be, this .residue w.as. not given to any church- or churches which could be selected at the time of the. death of "the -testator,' for only after the sale was the residue to be. given to such churches “ as my said Executors or the majority of them then acting shall in their discretion deem most deserving.and in need thereof-;” It-seems clear that the executors cannot now exercise-such ,a discretion-which must regard the deserts and needs of particular churches, which at the time of the distribution, may then ,show themselves, worthy and free churches.' .... . .
The scheme of the part of the will under consideration-coptemplated the creation of a fund which required the. sale of- the realty'. specified.- It is true that the. power, of sale was limited for a period by the provision in question, but ait the expiry of that, period the the power of sale was. imperative. All agree that the provision' for accumulations meanwhile is bad. The question is whether tlie -provisions are' so articulated with the scheme that the scheme itself must fail. If. we eliminate the void provisions as to the sale (that, for accumulations is but incidental • to it) we cpfi Off a provision-designed not to -defer the scheme but. to secure' a particular price. [537]*537Whenever that price could .be obtained the scheme of distribution was to be carried out. It was not essential to the scheme that a par. ticular price be obtained, inasmuch as there is no restriction as to price after the 'lapse of five years. Elimination of the void provision leaves intact both the imperative power of sale and the plan of distribution! If we uphold the scheme, aside from the void provisions, we but now make possible the plan the testator intended should become effective immediately within five years if the fixejd price was realized, and in any event upon the lapse of that period. We write, then, no'new will. We but possibly
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Jenks, J.:
I think that the intendment of the testator was an express trust in the executors; not a power, in trust. (Spitzer v. Spitzer, 38 App. Div. 438; Hubbard v. Housley, 43 id. 129; affd., 160 N. Y. 688; Staples v. Hawes, 39 App. Div. 548.) I think that the provision empowering the executors to sell “at such time within five years after my decease as they may be able to obtain the' sum of fifty thousand dollars in the aggregate therefor,” is not merely advisory but is a limitation, so that they have no authority to sell during that period for a less price. Fowler, on Beal Property Law of the State of New York (2d ed. 479, citing authorities), writes: “ While a peremptory power .of sale does not,per se, suspend the power of alienation, á'power to sell and distribute; does not necessarily relieve a-trust limitation, óthenvise invalid, from the effect of suspending the • power of alienation. So if the execution of even a, power of sale is, by any limitation, unduly postponed, such limitation violates- the rule' against a perpetuity, and is void, unless, the power is of such a nature as to be presently extinguished or merged.- Where the power' may be released by a. person entirely sui juris, it would seem to create a perpetuity.” If the power of alienation w'aá' suspended for a term not measured by lives, then the provision is void. (Brown v. Quintard, 177 N. Y. 75, 82; McGuire v. McGuire, 80 App. Div. 63.) It is bad if, at the time of the creation of .the trust,- there, was á possibility that there could be no sale for the period- of five years. Nelson, Oh.. J., in Hawley v. James (16 Wend. 61, 120), says: “ Now if in either aspect the limitation of the estate might suspend the power of alienation beyond the timé [535]*535allowed by the law, it will be impossible to sustain it, because the rule is well established that a limitation which, by possibility, may create such a suspension, is void.” (See, too, Amory v. Lord, 9 N. Y. 403, 415, citing Hawley v. James, supra; Herzog v. Title Guarantee & Trust Co., 177 N. Y. 86, 99; Trowbridge v. Metcalf, 5 App. Div. 318; affd., 158 N. Y. 682.) In Spitzer v. Spitzer (supra) this court, per Cullen, J., said: “ The will directs that the executor shall sell,' as soon as possible after the testator’s death and within two years from the admission of her will' to probate,, for the best price that can.be realized, but for not less than $18,500 without the written consent of the testator’s sons. It seems to us that this' does not violate the statute against perpetuities. The- trust is to continue until the time of sale. If ¿he authority to sell was unqualifiedly limited by the- provision that the executor should obtain the sum of $18,500 for the property, the trust would be illegal because it might be that the executor never could obtain that price.” (See, too, Stewart v. Hamilton, 37 Hun, 19, 21.) -The learned Special Term was moved to pronounce the provision valid by the consideration that a price well within the fair market value of the thing to be sold is no more than is implied in all powers of sale, and there was no attempt to show that the realty could not fetch, the price named within five- years. But the fact that normally •a voluntary vendor does not sell at a sacrifice, if in any way, germane to the question before us, could indicate nothing more than that this testator thought that the sum which he named might be realized within the five years. And the implied restriction upon an agent or a trustee that he should not make a ■ voluntary sale at a foolish price, is quite- different from an express prohibition that he should sell only at a prescribed, price. The validity of the provision, as I have shown, is not to be determined by probabilities or possibilities of a sale, but the possibility that there could not be a sale.-
- I am of opinion that the power of sale cannot be' defeated or annulled. A specified part of the proceeds of a sale is to be held by the -executors in trust for the lifetime of the testator’s son George. Hence there cannot be a present right in existence to dispose of the entire interest. (Garvey v. McDevitt, 72 N. Y. 556.) In addition, -after the-gifts to his children John and Sarah, and the making of [536]*536the-said trust for the life of George, any residué of the sale, is to he distributed “ amongst Such Free Protestant Church and Evangelical Protestant Churches in sums- not to exceed five hundred dollars fib any one church, as my said .Executors or the majority of them then acting shall, in their discretion deem most deserving and-in need thereof, but-no church shall-be selected to receive any benefit under this provision of my will unless the same, shall be a free church, where no charge is made or fee is required to be'paid-tb occupy the pews or sittings therein, during-diyine services.” How I do riot-find ¡that there is any religious denomination ■ known or. .described- even approximately as the Free Protestant Church. There is a,religious body known as the Evangelical Church, but there is doubt whether.the' testator by the expression “Evangelical” intended any more definite., designation than those churches\which conformed,.to the principles of the gospel of Jesus Christ. (Century Dictionary.) It is to be noted that there is'no territorial limitation whatever, b.ut for aught, expressed all churches within those Terms may be selected by the-executors. .There is serious question under the rule of Read v. Williams (125 N. Y. 560) whether this power is not too indefinite. However this may be, this .residue w.as. not given to any church- or churches which could be selected at the time of the. death of "the -testator,' for only after the sale was the residue to be. given to such churches “ as my said Executors or the majority of them then acting shall in their discretion deem most deserving.and in need thereof-;” It-seems clear that the executors cannot now exercise-such ,a discretion-which must regard the deserts and needs of particular churches, which at the time of the distribution, may then ,show themselves, worthy and free churches.' .... . .
The scheme of the part of the will under consideration-coptemplated the creation of a fund which required the. sale of- the realty'. specified.- It is true that the. power, of sale was limited for a period by the provision in question, but ait the expiry of that, period the the power of sale was. imperative. All agree that the provision' for accumulations meanwhile is bad. The question is whether tlie -provisions are' so articulated with the scheme that the scheme itself must fail. If. we eliminate the void provisions as to the sale (that, for accumulations is but incidental • to it) we cpfi Off a provision-designed not to -defer the scheme but. to secure' a particular price. [537]*537Whenever that price could .be obtained the scheme of distribution was to be carried out. It was not essential to the scheme that a par. ticular price be obtained, inasmuch as there is no restriction as to price after the 'lapse of five years. Elimination of the void provision leaves intact both the imperative power of sale and the plan of distribution! If we uphold the scheme, aside from the void provisions, we but now make possible the plan the testator intended should become effective immediately within five years if the fixejd price was realized, and in any event upon the lapse of that period. We write, then, no'new will. We but possibly accelerate the operation of testator’s dominant purpose. The disposition of the fund to be realized from a sale does not offend the law. The trust in $10,000 thereof is measured by the life of the son George: 'The other parts thereof áre to be distributed outright, and the disposition of the residue, if any, may be sustained. Under the doctrine of Kalish v. Kalish (166 N. Y. 368, 372); Haxtun v. Corse (2 Barb. Ch. 506) and Van Vechten v. Van Veghten (8 Paige, 104) I think that this should be the disposition of this case. My view constrains me to differ and to ágree with the learned" Special Term. First; I differ .in that I think that the limitation of the power of sale for five years is bad-. Second, I agree that the direction for the accumulation of the net rents and profits until the sale is bad. Third; I agree that if the sale does not realize the sum of $30,000 the rents are given to the absolute distributees- to the extent necessary to make the fiind $30,000; aud; further, I think that an excess of rents over that sum is applicable to the provision for. the churches. Fourth, I agree that the one-third of that contribution which is directed to be held in trust for the life of George E. Woolley,is void. Fifth, in other respects I agree. .1 advise that the judgment as thus modified should be affirmed, with costs .to all parties, payable out of the estate. - ;
Hirschbero, P. J., Woodward, Hooker and Miller, JJ., concurred. • . •
Judgment modified in accordance with opinion of Jenks, J., and-as so modified affirmed, with costs to ail parties payable o.ut of the estate. Order to-be settled on notice before Mr. Justice Jénes