Schlereth v. Schlereth

Hatch, J.: It is not contended by any of the parties to this appeal but that the will, which is the subject of construction, worked an equitable conversion of the testator’s real property into personalty. Such is clearly the effect of the provisions of the will, and, therefore, the same is to be construed by the rules applicable to the bequest of personal property. The real question which the case presents is, [287] whether the gift over to the children of the testator’s brother-in-law and the children of a sister, all living in Germany, is so dependent upon the validity of the 7th and 9th clauses of the will that if the latter be held void as repugnant to the Statute of Accumulations, the former must fall therewith. There can be no doubt, we think, but that the bequests provided for in the 7th and 9th clauses of the will are void as being in contravention of the statute. If the language of the will vested an estate in the children of the testator’s daughter at her death, then the provisions of the will would be clearly valid as the absolute ownership would not be suspended beyond two lives in being at the date of the death of the testator, even though there was postponement of distribution until the youngest of such children should become twenty-one years of age. Such, however, are not the provisions of this instrument. The direction contained in the 7th clause of the will is to pay over the income of the trust estate to the issue in equal shares, each share and share alike, until the youngest of such issue shall have attained the age of tmenty-one years, and then to divide and distribute the whole fund in equal shares, and by the 9th clause, in case the daughter died leaving issue, but none of such issue should reach the age of twenty-one years, then the direction was to divide and distribute the whole trust fund among the persons named in the 8th clause of the will. Therefore, by virtue of these provisions, it is evident that no title vested in the children until the period of distribution arrived, and the time when the title vests is the determining rule of construction under the statute. The gift over to the persons named in the 8th clause of the will became vested at the earliest moment when title to the property could vest under the terms of the will, and this carried it beyond two lives in being, and was, therefore, within the clear prohibition of the statute. It is also evident from the terms of the will that the persons mentioned in the 8th clause were not vested with any title to the property, nor could they take any title or interest therein except upon the termination of the two contingencies provided in the 7th and 9th clauses of the will. The 8th clause, by the terms of these two clauses of the will, was dependent upon the contingencies therein provided, as no title could vest until they had happened. It seems to follow, therefore, that as the testator made provision for [288] the suspension of the absolute ownership of the estate bequeathed dependent upon the surviving of issue of the daughter to twenty-one years of age, he was without power to give further directions concerning the disposition of title to the property beyond this period. Each one of these questions seems to have been clearly and authoritatively determined in Greenland v. Waddell (116 N. Y. 234). There, as here, the gift over was to certain named persons after the suspension of the power of alienation for two lives, and it was held that the persons to whom the bequests were made took no title or interest in the estate; that the will was void, and that the testator died intestate with respect to such property. There, as here, the direction contained in the will as to the vesting of the estate was made dependent upon the time when the distribution was to take effect, so that in all substantial respects, and clearly so, for all the purposes of construction, the present will is like the will then before the court. The decision is, therefore, controlling. The life estate provided for in the will is not dependent upon the other provisions of the will. (Adams v. Berger, 18 N. Y. Supp. 33.) It follows that the decision of the trial court was correct and the judgment entered thereon should be affirmed, with costs to the respondent payable out of the estate. Patterson, O’Brien and McLaughlin, JJ., concurred; Laughlin, J., dissented.