Second Nat. Bank of Paterson v. Curie

The opinion of the court was delivered by Pabkee, J. The principal controversy between the parties is fully set-out in the memorandum opinion of the vice-chancellor and needs no repetition here. The case was submitted on briefs without oral argument and the points made and argued in those briefs have been fully and carefully considered. *109 The first principal point made for the appellant is that there was error on the part of the vice-chancellor in determining that the trust agreement was supported by a valuable consideration. We are satisfied that there was no such error ■and are content to rest oúr holding in this regard upon the reasoning of the vice-chancellor. 'The second main point for the appellant is that the court of chancery erred in determining that the trust agreement was valid when construed by the law of New York. The principal argument against the validity of this agreement was based upon the claims that it was void because of the statute of perpetuities. The New York counsel involved were fully aware of this and, as stated by the vice-chancellor, undertook to invoke the New Jersey law by bringing both parties over into this state to execute the agreement, designating a New Jersey corporation as trustee, and lodging all the securities which were the subject-matter of the trust with that trustee in Paterson. It is nevertheless argued that the New York law remained applicable. We find it unnecessary to determine this point. In fact, it may well be that the agreement is vulnerable to the rule of perpetuities existing in this state, because the trust is limited, after the death of the husband and wife, “to the lawful issue of the donor and the beneficiary per stirpes and not per capita until the youngest of such issue shall have attained the age of twenty-one years.” There is nothing here to restrict the application of this clause to the issue of the donor who were in esse at the time of the execution of the agreement, and it is altogether conceivable that other issue might be born thereafter. However, it is unnecessary to pass directly on this point, because the rule appears to be settled in this state that even although The ultimate gift of corpus is void under the rule against perpetuities, the prior gifts will not be invalid if they do not themselves contravene the rule against perpetuities, unless they are so inseparably interwoven with the invalid gift as necessarily to fall with it, or unless merely incidental to and in aid of the main invalid gift.” McGill v. Trust Co., 94 N. J. Eq. 657, affirmed as to the point under consideration in 96 N. J. Eq. 331. *110 The Curie children were not made parties to the present litigation, and apparently both sides agree that they are not particularly interested in the present controversy. We concur in this view. The only subject-matter of the appeal is the question whether the trust for the .benefit of the wife for her life is a valid trust and whether it should be enforced strictly according to its terms. It is unnecessary, therefore,, to-intimate any definite decision on the second main point. The third and fourth points are that paragraph 10, quoted in the opinion of the vice-chancellor, supra, is in effect a. contract between husband and wife, and is not fair and just; and that the court of chancery erred in decreeing specific performance of the trust agreement. We take the view that the agreement in these aspects was in its essence and purpose-an agreement for the reasonable and suitable support of the wife according to her station and according to her husband’s means and ability to support her, and that it comes therefore under the general class of agreements for maintenance where-husband and wife are living apart and, as such, is subject to the control of the court of chancery, but not by way of' specific performance. Apfelbaum v. Apfelbaum, 111 N. J. Eq. 529. The agreement itself may be regarded by the court as evidential with regard to the amount of money to be paid, though not controlling in that regard; same case, No. 60, October term, 1933. 115 N. J. Eq. 555. There are three other points stated in the brief but they are all covered by what has been said above. We conclude that the decree of the court of chancery should be affirmed so far as it upholds the validity of the trust for the life of the respondent’s wife. It seems plain that so far as relates to the actual lodging of the original securities in the hands of the trustee, this has the effect of an irrevocable settlement upon the wife for life of the beneficial interest therein. As regards, however, the obligation of the husband to supply other securities and .make up deficiencies in income so as to keep an income figure of $19,000 a year in favor of the wife, these provisions are controlled by what we have said *111 in the matter of specific performance and are therefore within the discretionary regulation of the court of chancery. The decree helow, is therefore reversed, for modification in the particulars above specified, and in other respects affirmed. For modification — Tee Chiee-Justice, Trenohard, Parker, Lloyd, Case, Bodine, Donges, Heher, Perskie, Yan Buskirk, Kays, Heteield, Dear, Wells, Dill, JJ. 15.