Monypeny v. . Monypeny

Culler, Ch. J. The fate of this litigation has been a peculiar one. When the case reached the Appellate Division on demurrer to the first complaint in the action, one-half the court' sustained the demurrer practically on -the ground that the courts of this state had no jurisdiction of the matter in controversy, while the other half sustained it on the ground that the validity of the *92 provisions of the will was too clear for discussion and the questions sought to be raised were frivolous. (131 App. Div. 269.) On the second appeal to the Appellate Division the demurrei seems to have been upheld on the ground first stated, the court being of opinion that any decision of the courts of this state would be' without effect. The judgment there entered is now sought to be sustained on the ground that there is no practical question before us. Let uS see. The will is drawn with a prolixity of language and confusion in thought and in expression approximating to genius, and the complaint in the action is entitled to the same high commendation; nevertheless, it states sufficient to require the judgment of this court, to wit: a will of real estate within this state and a demand for its interpretation as to validity and effect, unless the construction of the will, as is claimed, presents no practical question. The Code of Civil Procedure (§ 1866) expressly authorizes an action to determine the validity and construction, or effect, under the laws of this state, of a testamentary disposition of real property situated within it. There can be no question that, though the will was made in Ohio, its interpretation and effect, so far as it relates to the real property within this state, is to be determined by the courts of this state and that their decision is conclusive. (Peck v. Cary, 27 N. Y. 9.) The rule justifying the maintenance of such an action is well stated in Horton v. Cantwell (108 N. Y. 255) by Judge Peckham : “There must be some color of a question for construction before the court can be called upon to construe the devise.” In that case the court refused to act on the ground that, under no construction of the will, could the plaintiff be entitled to the possession of a remainder in the property upon her own demise. In determining whether the plaintiffs have, in any view, a present interest in the real property within this state I shall assume that the will did not create an equitable conversion; for, even if we should think it did, *93 the fact that two judges of the court below not. only thought there was no equitable conversion, but that the claim to that effect was frivolous, at least makes the question a debatable one worthy of adjudication by the courts. We now turn to the trust created for the benefit of the plaintiffs’ father, the testator’s son. What is meant by the expression “ to raise a trust ? ” It is certainly inartificial, and possibly the subject of differing interpretations. I think the intention of the testator was to give one-fifth of his estate, both real and personal, to his trustees in the trust directed by his will; for, on the death of the equitable life tenant, he provides for transferring and conveying, in fee, the corpus of the trust estate to the remainderman, which expression clearly contemplates that the trust estate might contain realty. Now, this conveyance is to be made to the children of the life tenant upon the youngest child attaining his majority ; in the meanwhile the income to be paid to them. But there is no provision authorizing the trustees to collect the rents and profits of the real estate, and without such direction, either express or implied, the statute vested the legal estate in the plaintiffs upon the death of their father and entitled them to possession. (Beal Property Law, § 73 ; Denison v. Denison, 185 N. Y. 438.) Surely, the question whether there is an implied direction to collect the rents is fairly debatable. But there is a still more serious objection to the validity of the continuing of the trust. The statute forbids a suspension of the power of alienation, except during the continuance of two lives in being at the death of the testator, and the validity of the provisions of the will is to be determined, not by what has happened but what might have happened under them. Plainly, children of his son might be bom after the testator’s death. This renders the trust void and the plaintiffs may be now entitled to the possession of the property. It is true, there is one exception to this absolute rule prescribed by statute. *94 That .is, “a contingent remainder in fee, may be created on a prior remainder in fee, to take effect in the event that the persons to whom the first remainder is limited, shall die under the age of twenty-one years, or upon any other contingency, by which the estate of such persons may be determined before they attain their full age.” (1 R. S. part 2, ch. 1, art. 1, section 16.) This exception, however, would not save this will, because the remainder which each of the several children would be entitled to, is not given over on his failure to arrive at the age.of twenty-one, but on the failure of the arrival of the youngest of the children at the age of twenty-one) a provision not within the exception. This objection also disposes of the validity of the attempted bequest over upon the death of the so’ns and their issue before the termination of the trust. The result is that it may be at least plausibly if not rightly argued that, under the will and laws of this state, the plaintiffs, on the death of their father, became seized in fee simple of the real estate within this state. (Radley v. Kuhn, 97 N. Y. 26; Livingston v. Greene, 52 N. Y. 118, 123.) It is true that this result would not necessarily destroy a discretionary power of sale in the executors, but the right to share in the proceeds of the sale depends upon the right to the lands sold, and it is ;he courts of this state, not those of Ohio, that are to determine the rights of the parties. I think there is more in this case than has been appreciated, and that the questions presented by it are entitled to at least consideration and decision; and that, as some of the members of the court share the views I entertain as to the effect of this will, the questions cannot be said to be frivolous or not practical. If the question whether the plaintiffs are now seized in fee of an undivided interest in the real estate is not a practical one, pray what would be such? The judgment should be reversed and judgment ordered for plaintiffs on the demurrer, with costs in all courts, *95 with leave to defendants to withdraw demurrer and serve answer within twenty days on payment of costs.