Provost v. . Provost

*144 Allen, J. The trust created by the will is for the preservation of the estate, and the payment of the net income from the rents and profits to the widow of the testator quarterly, or as received by the trustees, and had the will ended with this provision, the trust would have terminated with the life of the cestui que trust and no question would have been made as to its validity. The trust thus created is among those authorized by statute (1 R. S., 728, § 55, sub. 3.), and but for the added clause, “ until all of my living children shall be of full age,” the estate would only have vested in the trustees for the life of Mrs. Provost, and the estate would have ceased with her death, as the purposes of the trust would have ceased. (1 R. S., 729, §§ 61, 62, 67.) The question is as to the effect of the words limiting the continuance of the trust to the minority of the children of the testator. The well established rule is, that if a will or any clause of a will is susceptible of two interpretations, that shall be adopted which will validate the provision and give effect to the disposition, rather than that which will destroy it. (2 Jar. on Wills, 743, Rule XVI.) The testator having, by the preceding words, created a valid trust which, without qualification, would continue during the life of his widow, and no longer, entitling her to the net income of his estate so long as she should live, by the added words provided for its termination during her life in case all his living children shoidd attain their majority before her death. The effect of the- added words Was as if after having created a valid trust for the life of his widow, the testator had said, but said trust shall continue no longer than during the minority of one or more of my living children. The trust, therefore, is for the life of the widow, but subject to be determined by the other event; and must terminate when the widow shall die, or all the children shall become of age, whichever shall first happen, and cannot continue beyond the life of the cestui que trust. The reason for an earlier termination of the trust than the death of the widow, is obvious; but there is no apparent reason for continuing it beyond that *145 period, and there was no purpose to be accomplished by its contiuance. There is no direction for the application of the rents and profits after that time, or for their accumulation. There is no valid limitation of an expectant estate suspending the power of alienation or of the ownership entitling the persons, presumptively entitled to the next eventual estate to the rents, and profits after the death of the widow, as undisposed of under the statute upon that subject. (1 R. S., 726, § 40.), The trust certainly would, from its nature and the terms and purposes of its creation, terminate upon the death of the widow as one, the purposes of which were fully accomplished, being for her personal benefit, neither assignable or descendible, and might also terminate at an earlier period, and for that, provision is made in the third paragraph of the will in. the devise to the widow of a life estate in a portion of the realty subject to the trust. The trust was solely for the benefit of the widow, and for her life only, and did not suspend the power of alienation beyond a single life in existence at the time of its creation. In Irving v. De Kay (9 Paige, 522, and 5 Denio, 646,) there were two successive trusts, and the case differed in that respect from the present. The. trusts in that case being separable, the first was sustained and the last held invalid. The direction for a division of the estate may be interpreted as having respect to the termination of the trust estate, before the death of the widow, upon the happening of the event named; but if it did net, but must be read literally, it did not create or continue an estate in the executors named in the fifth, or the trustees named in the second paragraph of the will. The execution of that power, in whomsoever vested, did not suspend the operation of the devises of the several parts of the estate, or the power of alienation in the devisees. The devises are all in the present tense, and immediate to the devisees, and speaking from the death of the testator they took effect immediately, subject only to the trust for the life of Mrs. Provost. No division of the property devised was necessary, *146 as that was accomplished by. the terms of the will assigning to the devisees in severalty their respective portions. The introductory clause of the third paragraph of the will did not postpone the enjoyment of the devised estates. There was no estate or right of possession in any person other than the devisees, after the trust estate ceased, and it cannot be implied that the testator intended that the estate shoidd vest in his heirs at law for the brief period of the minority of any of his children after the trust ceased, and thus qualify the present and absolute gifts of the will. The clause has no meaning, and can have no effect in overthrowing the otherwise intelligent and valid provisions of the will. The estates vest absolutely in the devisees, and are not subject to any condition or contingency by which they may be defeated before the period assigned in terms for the division of the property. This being the case even if the period of enjoyment should be deemed postponed, the estates have vested,'-- and the law against perpetuities is not violated. (Duffield v. Duffield, 1 Dow. & Clark, 311; per Best, Ch. J.; 1 Jar. on Wills, 733, et seq.) The costs were in the discretion of the court below, and their action in respect of them is not reviewable in this court. (Code, § 306.) The reasons for this part of the judgment do not appear by the order, and as the question of costs was peculiarly "within the discretion of the Supreme Court, its action must be deemed to have been in the exercise of that discretion, and not the subject of review. The judgment must be affirmed, without costs to either party in this court as against the other. All concur, except Rapallo, J., absent. Judgment affirmed.