Denison v. . Denison

The action is for the construction of a will. The appellants are certain of the testator's next of kin and heirs at law for whom he made no provision. They assert the invalidity of the residuary clause, and claim that as to the property passing under it the deceased died intestate. The great prolixity of the instrument and the comparative unimportance of the questions presented, except to the parties to the litigation, forbid our incumbering the reports with a literal statement of its provisions. The testator after creating a trust to provide an annuity for his wife gave all the residue of his estate to his executors in trust for the benefit of the children of a named brother and of a sister who might be living at his decease to be divided into shares, the shares to be held for the "use and benefit" of the several beneficiaries during their respective lives and on the death of any beneficiary "in trust for his, her or their child or children and the issue, if any, of any of his, her or their deceased child or children who shall be living at the time of his, her or their decease respectively, his, her or their executors, administrators and assigns." In case of the death of any beneficiary without leaving issue at his death there is a gift over of which it is sufficient to say that its terms are such as to render it concededly illegal and void, and so the courts below have held. The invalidity of the gift over in default of issue surviving the life tenant cannot affect the primary gift to that issue if there should be such. (Harrison v. Harrison, 36 N.Y. 543; Woodgate v. Fleet, 64 N.Y. 566;Underwood v. Curtis, 127 N.Y. 523.) The question then is as to the interpretation and effect to be given to the provision in favor of the issue of the life tenant. If that gift terminates the trust then there is no illegal suspension of the power of alienation or of the absolute ownership of the property; while on the other hand if by the provisions of the gift a trust otherwise lawful is continued for the benefit of the children the gift would be *Page 443 void as suspending the absolute ownership of property during the lives of persons not in being at the death of the testator. The learned trial judge held that on the death of a life tenant the corpus of his share vested absolutely in his issue. In this view we think he was clearly correct. The trust designated in the will is a dry or passive trust involving no active duties on the part of the trustees. In such case the law vests the legal title in the beneficiary. (Real Property Law, § 73.) A grant to A in trust or for the use or benefit of B is not void, nor does it fail. It is in law a grant to B. (Wright v. Douglass, 7 N.Y. 564;Woodgate v. Fleet, supra.) It is also quite apparent that such was the intent of the testator, for while the executors are directed to hold the shares of the beneficiaries who took immediately on the death of the testator during their respective lives, the provision for the issue of the life tenant is unlimited and unqualified, "in trust for his, her or their child * * * his, her or their executors, administrators and assigns." Surely the testator, although layman as he was, and possibly ignorant of the statute against perpetuities as he may have been, never contemplated the continuance of a trust for the benefit of the assignee of those children. (See Hopkins v. Kent,145 N.Y. 363.) The learned counsel for the appellants insists that the same doctrine, if applied to the trusts for the immediate beneficiaries, renders them inoperative as trusts, for as to those no active duties are imposed upon the trustees. Other portions of the will lead to a contrary view, but granting the claim of the counsel in this respect it can have no effect on the validity of the will. The only result that would flow from his contention is that the life estates of the primary beneficiaries would be legal instead of equitable, and would not suspend the absolute ownership of the property for any period whatever. In that question, however, the appellants have no interest. It concerns only the life tenants. It is urged, however, that the testator intended to create a trust and that if his intention is not allowed to prevail the whole testamentary scheme should fall. This argument is equally applicable to every grant *Page 444 made to one for the use or benefit of another, and would abrogate the statute which prescribes in such case, not that the grant shall be void, but that the legal title shall vest in the beneficiary. We are, therefore, of opinion that the judgments of the court below were correct and should be in all respects affirmed, with costs to all parties to be paid out of the estate.