Frazer v. Hoguet

Hatch, J.: So far as disposition is made by this will of the personal property there can be no possible controversy, for by the 2d clause the personal property is bequeathed to the wife of the testator absolutely, and the title thereto vested immediately in her at the death of the testator ; therefore, no further consideration is necessary respecting this question. It is the claim of the plaintiffs that the 3d clause of the will offends against the Statute of Perpetuities, and that there is an unlawful suspension of the power of alienation for more than two lives. It is quite evident from the reading of this clause of the will that the person who drew the same had in mind the rule respecting the suspension of the power of alienation, and, as we read the language of this clause, he carefully avoided infringement of such rule. By it a trust is created and certain real estate therein mentioned is devised to the executors -in trust for and during the lives of the wife and sister-in-law, with express directions as to payment over of the income, (1) to the wife and sister-in-law; and (2) $1,000 in gold annually to a sister residing in Ireland, and if said sister should die during the lives of the wife and sister-in-law, the $1,000 directed to be paid to her is to be paid to her son, if he be living, so long as he shall live during the lifetime of the wife and sister-in-law ; and if both the sister and son die then the payment is to be made to the wife and sister-in-law and to the longest liver of them. It is clearly apparent, therefore, that these provisions do not create an unlawful suspension of the power of alienation, for the payment of the annuity to the sister or her surviving son is in terms made to end, so far as the trust estate is concerned, with the [199] termination of the trust, viz., upon the death of both the wife and sister-in-law. Upon the happening of this event this clause of the will directs the executors and trustees to transfer, grant and convey the real estate to the Most Reverend Michael A. Corrigan, archbishop of New York, to have and to hold to him, his heirs and assigns forever ; and in the event of his death during the life of the testator, or of the joint lives of the wife and sister-in-law, to the person who should, at such time, be the Roman Catholic archbishop of New York, or, if the see should then be vacant, to the ordinary administering the spiritual affairs of the diocese; and if the wife and sister-in-law should die leaving testator’s sister, or her son, or either of them, still living, the executors and trustees in such event should transfer such real estate to the person named above, upon the contingency therein provided, upon the condition that such person purchase an annuity of $1,000 for the benefit of the sister, and after her death for the benefit of the son, and the will makes such annuity a charge upon the real estate until purchased. If the archbishop or ordinary refuse to accept a conveyance subject to the conditions, then the executors and trustees are directed to sell the real estate and out of the proceeds purchase such annuity and pay over the balance to the archbishop or ordinary, who is to have and hold the same to him, his heirs and assigns forever. It seems clear from these provisions that immediately upon the death of both the wife and the sister-in-law an absolute devise is made of the real estate and title thereto vested in the archbishop, or, in the event of his death, in the ordinary of the diocese. Such vesting was not hampered by any condition whatever, and in the persons named who took the fee was vested the immediate power of alienation of the whole estate devised. The condition contained in this clause of the will relates, not to the vesting of the fee, or the effect of the devise; it simply seeks to name with certainty the person who shall take. The testator was careful to provide for all the conditions which the course of distribution of his property might create, and therein it was contemplated that the archbishop might not be in being, or both he and the ordinary might refuse to take, and in such event the will vests in the trustees immediately upon the death of the longest liver of the life annuitants a power in trust to sell the real estate, purchase an annuity and pay over to [200] the archbishop or the ordinary the remainder. If this contingency should happen the effect would be to work an equitable conversion of the real estate into money, but the power of alienation and the disposition of the proceeds would not thereby be suspended for an instant. It is said, however, that the charge of the annuity upon the real estate, payable to the sister or to her son, is a limitation upon the power of alienation which renders the will in this respect void. This contention cannot be upheld. The mere fact that the purchase of the annuity was postponed to a future time did not prevent the immediate vesting of the estate. The fact that it could only be done in the future in carrying out the terms of the will necessarily contemplated the lapse of some time. Such delays, which involve either mere prudential arrangements or affect the convenience of administration, are never held to offend against the Statute of Fertilities. (Robert v. Corning, 89 N. Y. 225; Cruikshank v. Home for the Friendless, 113 id. 337.) The charge itself was in the nature.of an incumbrance and no more interfered with the vesting of the fee than would the existence of a mortgage or the charge of a legacy. It was in reality in the nature of a legacy and vested in the annuitant immediately with the vesting of the estate. Such conditions do not prevent the descent of the estate, nor occasion a suspension of the power of alienation. (Marsh v. Wheeler, 2 Edw. Ch. 156; Loder v. Hatfield, 71 N. Y. 92.) Assuming, however, that this defeated the provisions of the will, it would only render it void pro tanto, and under the provisions of the residuary clause of the will, as we shall hereafter see, would not inure to the benefit of the plaintiffs. We are also of the opinion that there is nothing in the contention that the residuary clause is void as being merely an attempt to devise or bequeath income in perpetuity. All of the estate, not theretofore effectually devised or bequeathed, vests under this clause upon the death of the wife and the sister-in-law in the defendant Corrigan, or, if he be dead, in the other persons named as the contingency shall require. The words “ devise and bequeath the same ” relate to “ the rest, residue and remainder ” of the estate and not to the words “ net income.” The clause itself is clear and unambiguous and is a distinct devise and bequest of all the rest, residue and [201] remainder of the estate to individuals, and operates to save any lapsed or void legacy. (Fairchild v. Edson, 154 N. Y. 199; Riker v. Cornwell, 113 id. 115.) In order to give any apparent force to his contention in the interpretation of this clause of the will, the appellant, in his brief, commences to quote in the middle of a sentence, and begins such quotation with a capital letter “ To collect, demand,” etc., as if this were the principal direction as to the residuary estate. The division is misleading and it is needless to say was'never intended by the testator and distorts the meaning of the clause as a whole. The appellants further contend that the provisions of the will are void, in that it is contrary to chapter 360 of the Laws of 1860, as it is a devise or bequest of more than one-half part of the testator’s estate to a religious corporation. It is not at all necessary that we determine whether this gift is to the Roman Catholic Church, or to the archbishop as an individual. Assuming it to be the former, for present purposes, it is perfectly evident that the plaintiffs take nothing thereby and have no interest therein. This testator left no child or parent; he did leave a wife, but these plaintiffs would take nothing by descent or distribution from or through her; they are not of the class of persons named in the statute, and it has been held that “ The rights springing from the statute are personal, the same as the rights of a borrower under the Statute of Usury,” and only the persons named in the act and those benefited through them can invoke its protection. (Amherst College v. Ritch, 151 N. Y., 282.) It follows that the judgment appealed from should be affirmed, and, as the plaintiffs can take nothing under the will, they are possessed of no cause of action! The complaint should, therefore, be dismissed, with separate bills of costs to the respondents. Van Brunt, P. J., Patterson, Ingraham and Laughlin, JJ., concurred. Judgment affirmed and complaint dismissed, with separate bills of costs to the respondents.