In re the Probate of the Last Will & Testament of Trumble

Kruse, J.: The question presented by the clauses of the will in controversy is not over what disposition the testator intended to make of his property, but whether his intentions can be carried into effect without offending the statutes against perpetuities.' It is very plain that what was uppermost in his mind was to provide for his sisters. He gave the life use of his two farms to his sister Emma, with remainder in fee to her children; and the other five sisters were provided for [486] by the 4th clause in the will, and included his sister Emma if he sold the farms. All the rest of his property was directed by the 4th clause to be converted into money and deposited in banks and trust companies paying interest on deposits; and in substance he directed that forty dollars be paid monthly to each sister during her life, and upon her death the like monthly payment to her heirs, except the heirs of his sister Amanda. If the 4th clause of the will creates but a single, indivisible trust, it is clearly in contravention of the statute against perpetuities and invalid since it suspends the absolute ownership of the trust property for- more than two lives in being at the death of the testator. (See Pers. Prop. Law [Consol. Laws, chap. 41,;. Laws of 1909, chap: 45], § 11.) I do not see how the provision in favor of the heirs of the sisters can be upheld in any view of the cáse. But it does not necessarily follow that the provision for the sisters-is illegal also. The fund is.not a common fund in' which the sisters have a joint interest,, so that in the case of the death of one or more, the surviving sisters are entitled to use what is left of the fund to make the monthly payment of forty dollars to each of the survivors ; but it is provided that the heirs of the one so dying, (except Amanda’s heirs) are to be substituted in her place, and to receive her monthly payment of forty dollars. I think that although the monéys may be kept together in one fund there is an independent trust created for each of the siSters, and that the illegal provision in favor of the heirs of the sisters may be disregarded. The trust in favor of each sister is entirely independent of the provision for her heirs, and does .not depend upon the validity of the disposition made of what remains of the fund after her death. • The rule is tersely stated in the head note to the case of Van Schuyver v. Mulford (59 N. Y. 426) as follows: “ Where an estate is vested under a will in a trustee, upon several independent trusts, one or more of which are valid and the others void, the latter will be rejected and the estate of the trustee will be upheld to the extent necessary to enable him to execute the former.” This rule, in principle, has been applied in many cases. It is sufficient to call attention to only a few of them. (Kennedy v. Hoy, 105 N. Y. 134; Underwood v. Curtis, 127 id. 523; Hascall v. King, 162 id. 134, 152; Robb v. Washington & Jefferson Col [487] lege, 103 App. Div. 327, 355 ; 185 N. Y. 485, 495.) The primary object of the trust was to provide for the sisters, and 1 think under the rules to which I have adverted the provision in their favor should be sustained. As regards the 5th clause of the will, I think the learned surrogate correctly decided that that provision did not affect the right of any of the heirs at law or next of- kin of the testator in respect of property not effectually disposed of by the will: What remains of the trust funds after the death of the sister beneficiaries should be distributed as unbequeathed assets. The rule in such case is quoted and reaffirmed in Pomroy v. Hincks (180 N. Y. 73, 75) as follows : “ It is a settled principle of law that the legal rights of the heir or distributee, to the property of deceased persons, cannot be defeated except by a valid devise of such property to other persons. * * * It was not sufficient to deprive an heir at law or distributee of what comes to him by operation of law, as property not effectually disposed of by will, that the testator should have signified his intention by his will that his heir or distributee should not inherit any part of his estate.” It follows that the decree of the surrogate should be modified by adjudging that the provision for the sisters contained in the 4th clause of the will is valid; that an independent trust is created thereby, as therein provided,for the benefit of each sister; that the provision therein contained for the heir or heirs of any sister therein named is illegal and void; and that the property embraced therein, remaining after the death of any such sister, is not disposed of by said will, and passes and should be distributed to the persons entitied thereto as provided by law in case of intestacy; and as so modified the decree should be affirmed, with costs to each of the parties or set of parties appearing by separate attorneys, payable out of the estate. . All concurred, except McLennan, P. J., and Hobson, J., who dissented in an opinion by McLennan, P. J.