Doubleday v. Newton

James, J. The will under consideration was made and executed before the revised statutes, but the codicil was made, and the death of the testator took place subsequently; so that the will must be construed according to the law as it stands since those statutes took effect. (Depeyster v. Clendining, 8 Paige, 295. 26 Wend. 21.) Again; courts are bound so to construe a will as to make it legal and valid if possible, and consequently to reject a construction which would render it void, unless otherwise required by strict necessity. (Mason v. Jones, 2 Barb. 230. Butler v. Butler, 3 Barb. Ch. 304.) In order to arrive at the intention of the. testator it is necessary to examine the whole will; but it should be borne in mind that the .whole- will is not necessarily before us "for adjudication; only so much of.it as is. necessary to determine the question of the present application for partition. In this action we have nothing to do with ’the disposition of the rents ■ and profits; nor are we compelled to inquire after the proceeds of any sales made under any power contained in the will, or codicil. The only question before us is, to whom does the real estate in question belong, and shall partition of the same be made ? First. To whom does, the real estate belong ? A careful examination of the instrument will show that no devise of the real estate is therein made, except by the 6 th clause, and the power of sale of certain portions of the estate given to — 441 — the executors by the codicil. This latter power does not reach the estate in controversy, nor in any respect affect the question under consideration. A trust is attempted to be created by the 7th and 8th clauses, but neither of these provisions affect the validity of the 6th clause; this last can stand if either or both the others are void. The 6th clause is in these words: “ I give and bequeath all the rest and residue of my real and personal estate to the children of my said daughters Lydia Ann and Maria, to be equally divided between them as they respectively arrive at the age of 21 years.” If the first part of this clause was read without any reference to the second, no question could arise as to the intent of the testator; or where the legal estate vested, on his death. The language imports a present bequest. It is not devised upon condition, •or in trust. It does not devise the estate “ if they” or “when they” shall arrive at 21 years of age, but gives it by absolute, positive and unconditional terms, which on the death of the testator passed to the beneficiaries named a present estate in fee to the premises in question. This construction is not inconsistent with the second part of the same clause. That part, at most, but suspends the division of the estate until the devisees respectively arrive at the age of 21 years. There is some doubt whether it even does that. The sentence contains no negative words, or words of prohibition, as in the case of Converse v. Kellogg, (7 Barb. 590;) but only words of command. There are not, technically, any words of limitation or suspension, in the 6th clause ; but on the contrary, a requirement that each of the children should receive his or her share or portion as they should respectively reach their majority. The sixth clause then, speaking for the testator, is thus construed to say, “ on my death I give to the children of my two daughters these two farms in fee as tenants in common. It may or may not remain undivided until they reach their majority, but if it do so remain, it is then to be divided equally between them as they respectively reach the age of 21 years.” — 442 — Such a construction would not vitiate the will, nor render the sixth clause, or any part of it, void. But suppose I am wrong in this last construction, and hold that this last sentence of the sixth clause suspends the division of the estate until the devisees respectively arrive at the age of 21 years ■; is such limitation or suspension void ? And if void, does it destroy and render void the other parts of the same clause which makes the devise ? 1. Is the suspension of the division of an estate devised in fee to more than two minors until they shall arrive at the age of 21 years, void under our law ? The, counsel on both sides, in .their points and arguments seem to concede that the direction that the division of the property should not be made until the devisees respectively attained their majority was void because it by possibility suspended the power of alienation for more than two lives in being at the time of the testator’s death. And several authorities are cited by each, to sustain the proposition. I have carefully examined those authorities and they fail to satisfy me upon this point. In all those cases a trust estate was created and the power of alienation suspended, in fact, or by possibility, for more than two lives in being at the creation of the estate; while here, the title is given directly, to the beneficiaries, and partition or division only suspended between the absolute owners. It by no means follows that the power of alienation is suspended, because the right of immediate partition and division is withheld. (7 Paige’s Rep. 521. 7 Barb. 595.) These devisees were tenants in common, and aside from their infancy, so far as I can discover, any one or more of them could have alienated his or their undivided interest in the premises in question, notwithstanding the limitation of division contained in the will. In this case had one of the devisees during his infancy required the proceeds of his interest in these premises for his support and maintenance, I have no — 443 — doubt his undivided interest might have been sold for that purpose by the order of the court. From these premises my conclusions are that if the right of an immediate division of the estate is withheld by the will, such suspension does not vitiate that instrument, but that both parts of the sixth clause are consistent with each other, and the whole clause valid. 2. But suppose that the second part of the sixth clause is void, does it vitiate and render void the whole clause P It is well settled that if effect cannot consistently with the rules of law be given to an entire will, or entire provision of a will, any part of it may be sustained which is conformable to the rules of law, and which can be separated from the residue without doing violence to the testator’s general intention. (7 Barb. 594. 14 Wend. 265. 16 id. 61. 22 id. 483. 24 id. 641.) Thus the devise of the estate, and the direction for distribution, can be separated, and the latter declared Void without any violence to the testator’s general intent; the general intent being to convey the estate and the suspension of division subordinate thereto. It is evident that the testator himself meant to distinguish between the vesting of an estate in the beneficiaries and the actual distribution of the property among them. The first part of the sixth clause therefore can stand, although the latter part be illegal and void. (7 Barb. 594. 1 Barb. Ch. 630, 5 Mass. Rep. 535. 2 Ves. 545. 7 Met. 363, 297.) It is not necessary to pass upon the validity or invalidity of the seventh clause of the will, in the consideration of the question before us. If valid, the limitation of the trust has expired with the minority of the devisees; if invalid, it was never an obstacle to the distribution of the estate. I also fully agree with the learned county judge, that the eighth clause of the will has no application to the premises in question, under the construction given to the sixth clause. 2?or do I think the testator intended these premises should be broken in upon to effectuate the trust declared in that clause. — 444 — The proper construction of the codicil requires the executor to take out of the proceeds of the real estate therein authorized to be sold, so much as shall be necessary for the trust purpose of the will; the surplus to be divided among the children. The testator never contemplated that this fund would be insufficient to effectuate the trust; else he would not have disposed of the surplus. At all events, he never intended that the execution of the trust should prevent the devise of the premises in question to the children. If that clause is to be satisfied at all, it must be out of the funds and property in the hands of the trustees, arising out of exercise of the power contained in the codicil. Those powers are ample, if legal, and the property would seem abundant for all the purposes there declared. The will being thus deemed valid , and held sufficient to pass the estste to the devisees therein named, the next question to be determined is, who are those devisees. On one side it is contended that only those children can take who were in being at the testator’s death, while on the other side it is in-insisted that it was the intention of the testator to let in after-born children equally with the others. The devise in this case is to the children of his two daughters, in general terms. They form a class, and when an estate is devised to a class of individuals it will take in those only who answer the description, at the time the devise takes effect. (Lenton v. Leger, 2 McCord’s Ch. 441.) Here the estate vested immediately on the death of the testator, and therefore only those children could take who were in being at the happening of that event. (1 Barb. 532.) The cases upon this point are all collected in Perkins’ Motes, 3 Brown’s Ch Rep. p. 404, and the above principle is there laid down as well settled law. In Jenkins v. Freyer, (4 Paige, 47,) it is said, “if the period of distribution is left indefinite, or if the gift be by words per verba in presentí, none but those born before the death of the testator can take.” From these premises my conclusions of law are, — 445 — [Schenectady General Term, May 7, 1855. C. L. Allen, James and Bockes, Justices.] 1st. That the will vested in the devisees a present estate in fee in the premises in question. 2d, That there was neither in fact nor in law any suspension of division. 3d. That if there was suspension of division, such suspension did not prevent alienation, or avoid the will. 4th. That if the second part of the sixth clause in the will was void it could he separated from the other, and the valid part he permitted to stand. 5t.h. That the estate under the will vested immediately on the death of the testator, and that only those grandchildren in being at his death took an interest in the estate. 6th. That the validity of the sixth clause of the will, so far as the two lots in question are concerned, is not affected by the validity or invalidity of any other clause of the will or codicil. The judgment of the county court must he affirmed with costs. C. L. Allen, J., concurred. Bockes, J. dissented.