Appell v. Appell

Scott, J.: The action is for the partition of the real property which belonged to Jacob Appell at the time of his death, and the only question presented is as to the validity of his attempted disposition of his property by his last will and testament. If such disposition was valid, the plaintiff and other heirs at law of said Jacob Appell have no present title to the real estate which would entitle them to a partition. If invalid, the testator died intestate as to his real property and an action for partition will lie. The will was duly admitted to probate by a decree of the Surrogate’s Court. That decree is conclusive as an adjudication that the will was validly executed and is the last will and testament of the decedent. But no question as to the validity of any provision of the will was necessarily involved in the probate proceeding,-and the decree in that proceeding is consequently not res adjudicata of the question presented on this appeal. The will of Jacob Appell gave all of his property to his executor and executrix in trust to collect and receive the rents, issues and profits of the real estate (of which he held many parcels) and the income of the personal property, and out of the net revenue to pay annuities to his widow and each of his children. [572] Next they were to create out of said net income “ a so-called sinking fund with which to pay off and discharge the mortgages and other incumbrances of or upon my real estate or to be used in the improvement of such property.” A ft,or all the mortgages and incumbrances had been thus paid off the trustees were directed to divide the whole of the net income between testator’s widow and children. That the provision for the accumulation of the income and its appropriation to paying’ off mortgages and incumbrances is invalid is clear and is not disputed. But it is equally clear that it may and should be cut out, as so doing will not wholly defeat the intention of the testator. (Hascall v. King, 162 N. Y. 134.) By this means the trust provision for the benefit of the widow and children will be preserved, the only effect being that the beneficiaries will be entitled to receive the whole net income from the beginning. A second objection urged by the appellants is that the whole trust provision is void because the term of the trust is not limited by a life or lives, but by a fixed period of time. The provision of the will is that the corpus of the estate shall be divided between the testator’s children “ when my youngest child living at the time of my death shall arrive at the age of forty-five years.” This necessarily fixes the end of the trust term, because when the corpus is divided and distributed the trust ipso facto comes to an end. The appellants would have us read the clause fixing the termination of the trust as if it read that the distribution was to be made when the youngest daughter if living would attain the age of forty-five years. The clause is not so written, and if so read it would destroy the trust and defeat the will of the testator. But the question is not a new one. It has been frequently raised and always decided the same way. The settled rule is that where a trust is limited upon a certain person attaining a given age it is to be construed as if it was in terms provided that the trust was to continue until the person upon whose life it is limited attains the given age, or sooner dies. (Sawyer v. Cubby, 146 N. Y. 192; Burke v. O’Brien, 115 App. Div. 574; Coston v. Coston, 118 id. 1; Matter of Lally, 136 id. 781; affd., 198 N. Y. 608.) [573] If we read the testator’s will in the light of this well-settled and compelling rule of construction it will appear that the trust estate cannot extend beyond one life, and the trust is not, therefore, invalid. No rules for the construction of wills are more firmly established than those which lead to the foregoing conclusions. The order appealed from is, therefore, affirmed, with ten dollars costs and disbursements to the respondents. Clarke, P. J., Laughlin and Davis, JJ., concurred; Shearn, J., dissented.