Schettler v. . Smith

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HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 333 Some of the trusts created by the will of the testator in the present case are claimed to be invalid by the counsel for the appellant, upon the ground that the absolute power of alienation of the real estate is thereby suspended for a longer period than two lives in being at the death of the testator, and the absolute ownership of the personal property is also suspended for a longer period than two lives in being at that time. Section 15, 1 R.S., 723, provides that the absolute power of alienation shall not be suspended by any limitation or condition whatever for a longer period than during the continuance of two lives in being at the creation of the estate, except in the single case mentioned in the next section. The latter section has no bearing upon the question in the present case. Section 1, page 773, 1 R.S., provides that the absolute ownership of personal property shall not be suspended by any limitation or condition whatever for a longer period than during the continuance and until the termination of not more than two lives in being at the date of the instrument containing such limitation or condition; or, if such instrument be a will, for not more than two lives in being at the death of the testator. In determining the validity of limitation of estates, under the above statutes, it is not sufficient that the estates attempted to be created may, by the happening of subsequent events, be terminated within the prescribed period, if such events might so happen that such estates might extend beyond such period. In other words, to render such future estates valid, they must be so limited that in every *Page 335 possible contingency, they will absolutely terminate at such period, or such estates will be held void. (Lewis on Perpetuities, 170; Hawley v. James, 16 Wend., 62, and cases cited.) Applying this rule to the trusts created by the third clause of the will in favor of the wife of the testator's son, John Jacob Smith, during her life, and the further trusts limited upon the termination of such life, they are void. The son was unmarried at the death of the testator. This clause gave one-fourth of the residue of the estate to the executors, in trust, to receive the income thereof and pay the same to the son during life, and on his decease, to pay the same to his wife during her life, and on her decease, if he leave a widow, or if he leave no widow, then, on his decease, to convey said one-fourth part to the issue of his said son then living; but in case said son should die without issue, then on the expiration of said life estates, to convey such fourth part to the issue then living of his other children, in the manner provided by the will. Now, it is clear, that the son might have married a woman born after the death of the testator, and consequently one not in being at the death of the testator, and that such woman might have survived the son; and in the happening of such events, the trust to pay the income to such woman, during her life, would not have terminated upon the death of two persons in being at the death of the testator; consequently the provision in favor of the son, and the further trusts to convey upon her decease might suspend the power of alienation of the real for a longer period than two lives in being at the creation of the estate, and also the absolute ownership of the personal property for a period longer than two lives in being at the death of the testator, and were therefore void. But it will be seen, that the clause of the will under consideration makes a disposition of this portion of the property in the alternative upon the happening of another series of events. That provision is: or if he (the son) leave no widow, then upon his (the son's decease) to convey as above provided. It will thus be seen, that in the contingency of the son's having no widow, the property is to *Page 336 be conveyed to his issue upon his decease; that is, upon the termination of a single life in being at the death of the testator. Had this been the only direction as to the conveyance, it is clear that it would have been valid, as by no possibility could the power of alienation of the real and absolute ownership of the personal been suspended beyond the period allowed by statute. The son having died leaving no widow, the inquiry is, whether this lawful disposition is rendered invalid by the unlawful disposition attempted to be made in the contingency of his leaving a widow. It is difficult upon principle to see why it should. But for the prohibition of the statute, both dispositions would have been lawful and valid, and either would have taken effect according to the happening of the events giving it vitality. The statute comes in and avoids one of the dispositions, leaving the other unaffected by its provisions. Why should not the latter take effect upon the occurrence of the events, upon which it was made to depend. The authorities sustain its validity. Lewis on Perpetuities (501, 2), says, that where a limitation is made to take effect on two alternative events, one of which is too remote and the other valid as within the prescribed limits, although the gift is void so far as it depends on the remote event, it will be allowed to take effect on the happening of the alternative one. That is, in principle, precisely this case in this aspect, vide, Crompe v. Barrow (4 Vesey, 681); Savage v. Burnham (17 N.Y., 561). The trust to convey to the issue of John Jacob, the son, living at his decease, in case he left no widow, must be held valid. From the facts found, it appears that John Jacob died not only leaving no widow, but also without issue. Consequently the last mentioned trust in favor of his issue never became operative. In the events which have actually happened, the trust required the trustees to convey this portion of the estate on the expiration of said life estates to the issue of other children of the testator. It is insisted by the counsel for the appellant that this is void, as the conveyance to the latter issue is expressly made dependent upon the termination of said life estates, one of *Page 337 which might have been that of a person not in being at the death of the testator. If this be the true construction, the counsel is right in his conclusion. We have already seen that to render the limitation valid, it must be such that it not only may, but must terminate within two lives in being. It is true, that the language used would, if read without reference to other parts of the clause, import that the only contingency upon which this conveyance was to be made, was the termination of the life estates of both the son and his wife; and if so, the limitation over would have been too remote, and therefore void, but the entire clause not only, but if necessary, the whole will must be examined to ascertain the intention of the testator; and if from such examination, the intention clearly appears, such construction must be put upon any particular language as will carry out the intention, if it will admit of that construction. In the present case, the testator provides, that if the son left no wife, then upon his death the trustees should convey to his issue; and if he left no issue, then upon the expiration of the life estates to convey to the issue of the other children, clearly indicating an intention, that in case the son left no wife, the conveyance to the issue of the other children should be made upon the happening of the event upon which it was to be made to his own issue if any, that is his death, leaving no wife. Adopting this construction, which I think the entire third clause shows was the intention of the testator, the alternative disposition to the issue of the other children was made dependent upon the same contingency as that of the conveyance to the issue of the son, if any, that is his death, leaving no wife. This renders the limitation in favor of the issue of the other children valid. The only distinction between the third clause of the will and the fourth, in favor of the testator's son Lawrence, and his wife and issue, arises from the fact that Lawrence had a wife and issue living at the time of making the will, and also at the death of the testator, who are still living. The trust in this clause, was to receive the income and pay the same to *Page 338 Lawrence during his life, and upon his decease to pay such income to his wife during her life, and on her decease, if he leave a widow, or if he leave no widow, then upon his decease to convey to his issue, c. The question presented upon this portion of the will is, whether the gift of the income to the wife of Lawrence, was confined to his then wife; or in case of her death during the lifetime of Lawrence, and he should thereafter marry another woman, such woman would be entitled to take under the will. If the former, the trust is valid, as in that view, the power of alienation, and absolute ownership could not be suspended beyond the lives of two persons in being at the death of the testator. If the latter, it is invalid in respect to the life estate of the latter woman, as Lawrence might marry a woman not in being at the death of the testator. This would be too remote, and consequently the limitation in favor of such wife would be void, and the trust to convey to the issue of Lawrence, being limited in this aspect of the case, to take effect upon the termination of the life estate of such second wife, would be likewise void. Lawrence having a wife at the time of making the will, and also at the death of the testator, the gift in the will to his wife would include his present wife only. That person is, by the term, just as plainly pointed out as the object of the testator's bounty, as though her name had been inserted, or she had been otherwise fully identified in the will. Had there been nothing further affecting this limitation, I should have found no difficulty in sustaining it. But there is added to this bequest to the wife of Lawrence, for life, the following: and on her decease, if he leave a widow, or, if he leave no widow, then, on his decease, to convey, c., to his issue, c. In another clause of the will, we find the testator making provision for the wife of a son not married. In the clause under consideration, the direction to convey to the issue, is not limited to the death of the wife of Lawrence, which we have seen would be applicable to his present wife only, but to the decease of his widow, if he left a widow, plainly including any wife that might survive him. This, I *Page 339 think, was the intention of the testator, and such must be the construction of this portion of the will. This being so, it follows that the direction to convey to the issue upon the death of the widow of Lawrence, is too remote, and therefore void; and this, irrespective of the question, whether such widow was the present wife, or any other woman, whether born or unborn at the death of the testator, for the reason that such widow might possibly be the latter. Should, therefore, Lawrence die, leaving a widow him surviving, the trust, to convey to his or the issue of the other children, being too remote and void, it would follow that the testator died intestate, as to this portion of his estate, and that it would be disposed of under the statutes provided for such cases. But should Lawrence have no widow at his death, then the alternative disposition to convey upon his death, will be valid and effectual, as in the case of John Jacobs' portion. No question as to the unlawful suspension of the power of alienation of the real, or of the ownership of the personal property, arises upon the fifth clause of the will. That suspension, in no contingency, could extend longer than the life of the testator's daughter, Cornelia, a single life in being. The only question arising upon this clause, is, whether this daughter, either as heir or legatee, has any interest in the income of the fourth of the residue of the estate disposed of by this clause, over and above what has been paid to her. No valid direction, for the accumulation of the income of this share, is given by the testator. By this (5th) clause, the one-fourth of the residue is given to the executors in trust, to receive the income thereof, and pay therefrom to the testators' daughter, Cornelia, $800 a year, quarterly, until her marriage; and upon her marriage with any person other than Frederick R. Schettler, or upon his deccase, to pay to her all the income arising from the death of the testator. But, in case the daughter married Schettler, all her interest in the estate was to cease during the coverture, and the same, during such coverture, is given to the other children of the testator, and to the issue of such of them, as might have died. The daughter received the $800 *Page 340 as provided, from the death of the testator until she intermarried with said Schettler. After such marriage, she died, leaving him surviving, and leaving one child by him. Upon her death, this fourth is given to her issue by any husband other than Schettler, and in default of such issue, is given to the issue of other children of the testator. The income arising from this fourth, was the interest given to Cornelia, for her life, upon her marriage with a person other than Schettler, or upon his decease, together with any excess of income arising therefrom, after the death of the testator, over and above the $800, to be paid to the daughter until such marriage or death; and this was the interest, that in case of her marriage with Schettler, was by the will declared, should pass to the other children of the testator, during the coverture of the daughter with Schettler, in case she married him. Upon this marriage, all the income arising from this fourth thereafter, belongs to the other children of the testator, and the issue, c., under this clause of the will. Under the same, the other children and issue would take any excess of income that may have arisen prior to the marriage, unless the same is otherwise disposed of by the statute. We have seen that no valid direction for the accumulation of this income was given. The power of alienation of the real, and ownership of the personal estate, was suspended during the life of Cornelia. 1 R.S., 726, § 40, provides, that when in consequence of a valid limitation of an expectant estate, there shall be a suspense of the power of alienation, or of the ownership, during the continuance of which the rents and profits shall be undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the persons presumptively entitled to the next eventual estate. The daughter, Cornelia, was presumptively entitled to the next eventual estate in the income. This is given to her for life, upon her marriage with any person other than Schettler, or upon his death. It is given to no one else, until after it shall be determined, whether she marries Schettler. Under this statute, I think, the excess of the income, until the marriage *Page 341 of Schettler, if any, belonged to Cornelia, and upon her death, vested in her administrator, the plaintiff. My conclusion is, that the judgment appealed from, should be modified, so as to declare the life estate of the widow of Lawrence void, and, also, the trust to convey to his issue, upon the death of his widow, void, as being too remote; and, also, declaring that the plaintiff is entitled to recover the income, arising from the fourth of the estate, specified in the fifth clause of the will, until her marriage with Schettler, not already paid to her, or her legal representatives, and as so modified affirmed.