Jacoby v. . Jacoby

Werner, J. The appellants claim .and the respondents concede that the first or “ trust ” clause of the will is invalid, but they do not agree as to the reasons for its invalidity, or its effect upon the rest of the will. With great elaboration and much force the learned counsel, .for the appellants contend, in substance, that when the first and sixth clauses of the will are read together, as they should be, it becomes apparent that the trust is void because it involves an unlawful suspension of the power of alienation, which is so -inseparably interwoven with all the other essential features of the will as to render the whole instrument void. The respondents, while conceding the invalidity of the *129 trust, contend that it is nullified, not by the statute against unlawful suspension, but by the statutory provisions relating to passive or “ dry ” trusts, and that its extirpation from the will does not affect the rest of the testator’s plan for the devolution of his estate. By the first clause the testator gives to his wife all his estate, in trust for the residuary legatees, subject to certain specific legacies. The residuary legatees named in the sixth clause are the testator’s wife and his four children, Esther, Bathan, Edward and Charles. The property is directed “ to be equally divided and equally shared among them after the youngest child of them shall have attained the age of twenty-one years, and until such time and during his minority, I desire that my said wife shall receive and have the sole use of the rents and income of my said estate.” Bo second reading of these two clauses of the will is necessary to demonstrate that they create no valid trust. The designated trustee is herself one of the residuary legatees, and not a single trust duty or function is imposed upon her. The projected trust is clearly a passive one which, under section 73 of the Beal Property Law, transmits no title to the trustee, but devolves it directly upon those entitled to the ultimate beneficial estate. (Rawson v. Lampman, 5 N. Y. 456 ; Fisher v. Hall, 41 N. Y. 416 ; Woodgate v. Fleet, 64 N. Y. 573.) By the sixth clause the ultimate beneficiaries are the testator’s wife and the four children named, subject to the wife’s use of the estate during the minority of the youngest child of them. Unless there is something in this sixth clause directing an unlawful suspension of the power of alienation it is, therefore, plain that the estate has vested in the five named residuary legatees, subject to the wife’s use during the minority of the youngest child, or until his earlier death, for it is well settled that a term measured by a minority ends upon the death of the minor. (Roe v. Vingut, 117 N. Y. 204 ; Real Prop. Law, sec. 32.) The next question to be considered is whether there is anything in the will which offends against the statute forbidding *130 the absolute power of alienation of real property by any limitation or condition for a longer period than during the continuance of not more than two lives in being at the creation of the estate.. Counsel for the appellants contend that when the sixth clause is read and construed in connection with the context of the whole instrument, the testator’s direction that the widow shall have the use and income of the estate “ until such time and during his minority,” makes it plain that the testator not only referred to the minority as a fixed period of time, but that the particular minority mentioned is that of the testator’s youngest surviving child who shall reach the age of twenty-one years. It needs neither argument nor authority to show that if the Avill before us can be fairly thus construed, it is irretrievably void, (1) because it suspends the power of alienation during a fixed period not measured by lives, and (2) because the same power is suspended during, the existence of more than two lives in being. We cannot subscribe to the view that' there is anything in the will to indicate that it was the testator’s intention to suspend the power of alienation for a fixed ¡Aeriod of time. On the contrary, the term used, when given its usual legal meaning, imports simply a suspension during a “ minority^” and that expression, as defined by the statute, is deemed to signify “ a part of a life and not an absolute term equal to the possible duration of such minority.” (Real Prop. Law, sec. 32.) Neither is the second contention of the appellants, to the effect that the power of alienation is suspended for more than two lives in being, any more admissible than the first. If we should assume that the phraseology of the will were ambiguous, so that it might be given either of two meanings, it would be our duty to adopt that Avliich will uphold the will. (Hopkins v. Kent, 145 N. Y. 367.) Thus if we AArere in doubt as to Avhether the diA'ision of the testator’s property is directed to be made when the youngest of his children shall have arrived at the age of tAventy-one years, or upon the majority of the youngest of his children who shall reach that age, Av'e should have to interpret the will as directing the former dis *131 position, because it is valid, as against the latter direction, which is invalid. It is not necessary, however, to go to that extremity, for we think the testator’s language is reasonably clear and unambiguous. He directs that his property “ be equally divided and equally shared ” among his wife and children, “ after the youngest child of them shall have attained the age of twenty-one years.” If we apply to this language the rule that the will speaks as of the time of the testator’s death, it plainly refers to the youngest of his children then living, who was in fact the testator’s youngest child, and a suspension of the power of alienation during “ his minority ” is unquestionably valid. (Chaplin on Suspension, etc., sec. 100; Van Cott v. Prentice, 104 N. Y. 56.) Much more might be written upon tlie various suggestions so elaborately and ably presented on behalf of the appellants, but it would add nothing substantial to the discussion. In the last analysis every case involving the construction of a will must be decided upon? its own particular facts and circumstances, and we have said enough to indicate that we have no doubt as to the validity of this will. The judgment herein should be affirmed, with one bill of costs. Cullen, Oh. J., Edward T. Bartlett, Haight, Vann, Willard Bartlett and IIiscock, JJ., concur. Judgment affirmed.