Tiers v. . Tiers

Rapallo, J. The trust in the third clause of the will as to four of the six equal parts into which the testatrix directed her residuary estate to be divided, created a separate trust as to each one of the four shares, to continue during the lives of the beneficiaries respectively. (Savage v. Burnham, 17 N. Y. 561; Moore v. Hegeman, 72 id. 376 ; Purdy v. Hayt, 92 id. 447.) On the death of each of the four beneficiaries, his or her share was directed to be conveyed or transferred to his or her children or issue upon arriving at the age of twenty-one years. No valid objection can be raised to this disposition. The only questions arise upon the ulterior contingent remainders. The third clause, after directing that upon the death of each of the beneficiaries first named, the share of principal producing the income of the one so dying, be transferred to “ his or her child or children ” upon their arriving at the age of twenty-one years, and to the lawful issue of any of “ such children ” who may be deceased at the time of his or her or their parent’s death; but if any “ such children ” should die before the age of twenty-one years and without leaving lawful issue, then the share or portion of the one so dying shall become part of the *573 residuary estate of the testatrix for the benefit of all her children in the same share and under the same trusts and limitations as provided in the third clause. This direction is quite obscure, but we think that its correct interpretation is that the “ children ” referred to are the children of the first-named beneficiaries and not the beneficiaries themselves, who, although children of the testatrix, are mentioned in the will by their respective names and are nowhere designated by the general appellation of “ children.” The ordinary rule would require that the words “ such children ” be deemed to refer to the last antecedent with which they connect, which is, in this case, the children of the sons and daughter of the testatrix, and there would be difficulty in holding them to have reference to the children of the testatrix, for it appears that these were all of age at the time of her death, and all but one were of age at the date of the execution of the will. The language “ if any such children should die before the age of twenty-one years,” etc., would hardly have been used by the testatrix if she had intended to refer to her own children. But whatever construction be adopted in this respect, it is very evident that the ulterior contingent limitation is quite separable from the primary trust, and merely incidental, its only purpose being to provide for a contingency which may never arise, and the failure of that provision would not affect the general scheme of the testatrix. In such cases the rule is quite well settled that an ulterior limitation, though invalid, will not be allowed to invalidate the primary dispositions of the will, but will be cut off in the case of a trust which is not an entirety, as well as in the case of a limitation of a legal estate. (Harrison v. Harrison, 36 N. Y. 543; Savage v. Burnham, 17 id. 561; Manice v. Manice, 43 id. 303,383, 384; De Kay v. Irving, 5 Denio, 646 ; Knox v. Jones, 47 N. Y. 389.) The other contingent limitation is contained in the fourth clause of the will, which limits a trust term for thé life of any widow of either of the three sons of the testatrix named in that clause, in the event of his dying without issue. Such a limitation was held void in Sohettler v. Smith (41 N. Y. 328) where the son being unmarried at the *574 testator’s death, it was possible that he might' marry a person not in being at the time of the creation of the estate, and she might survive him, and the validity of the disposition could not be made to depend upon the event. But though the contingent limitation over after the death of the unmarried son was held void, the primary disposition in trust for his benefit was not disturbed, nor were the other dispositions of the will held to be affected. On these grounds we conclude that the trust during the lives of the three sons and the daughter of the testatrix was a valid trust of one-fourth for each, terminable as to each one at his or her death. That consequently the share of which Joseph L. Tiers was entitled to the income, was inalienable during his life, and the plaintiff took nothing by her deed from him. The judgment should be affirmed, with costs. All concur. Judgment affirmed.