Tweddell v. New York Life Insurance & Trust Co.

O’BRIEN, J. The validity of the trust, as shown by the questions submitted, is not presented, except as to the accumulated income. But it is argued that inasmuch as the remainder over to the-plaintiff’s children, provided by the fourth clause of the will, is repugnant to the absolute bequest in the third, the former is wholly void, and there is no valid remainder bequeathed; and from this-the conclusion is sought to be derived that, as there is no remainder, the accumulation is wholly for the benefit of the plaintiff, who. was an infant at the death of the testator; that she is to receive the income of the accumulation; and that the accumulated principal belongs to her absolutely, subject to the trust, and is disposable of by her by will, or wdll pass to her legal representatives. Iff the construction to be given to the will requires a holding that the remainder over to the children is void, then it would seem to follow that not only the accumulation of income, but the principal as well,, would belong to the plaintiff, freed from the trust. We think, however, that the intention of the testator, so far as it relates to the creation of a trust, is clear and valid. By the third clause, the residue of the testator’s property is bequeathed to the plaintiff, subject to the restrictions that the same is to be placed in the keeping and control of the trust, company, to be held by it during the term of her-natural life, with a provision that the interest accumulating thereon should be paid over quarterly to the executors until the plain 766 tiff’s arrival at the age of 25, after which time the interest or income was to be paid to her directly during the period of her natural life. By the fourth clause, what the executor was to do with the interest or income is shown, it ■ being therein provided that certain sums should be paid to plaintiff during certain periods of her life until she arrived at the age of 25 years, and that any excess over such payments should be added to the principal, and, upon her arrival at the age of 25, that the interest upon the entire fund thus made up of capital and income should be paid to her during her life, with power to plaintiff to' bequeath by will any part of the funds thus placed in trust, and, upon failure to dispose of the same by will, upon her decease the same to go to her "child or children, equally. It will thus be seen that a trust is created in the fund, with remainder over to her child or children, which remainder is subject to her right to dispose of the same by will. Such a disposition being clear and definite, and in no wise against any statute, should be upheld. In regard to the income accumulated during the infancy of the plaintiff, we think that, under the statute and decisions, it should be paid to her. The will provides that the accumulation saved out of the income shall not be paid over to the minor upon her attaining her majority, but, when she reaches the age of 25 years, shall be1 added to the principal of the trust fund, of which the principal is to be payable at her death to her appointees, or, failing appointment, to her children. This presents the precise question which was fully discussed and decided by the court of appeals in Pray v. Hegeman, 92 N. Y. 508, and Barbour v. De Forest, 95 N. Y. 13. As said in the former case (headnote): “The provisions of the Revised Statutes (1 Rev. St. p. 726, § 37; Id. p. 773, § 3) authorizing an accumulation of the income of real and personal property for the benefit of minors require that the accumulation shall be for the benefit of a minor solely and during his minority, and that, when the period of accumulation ceases, the accumulated funds shall be released from further restraint, and paid over to the person for whose benefit the accumulation is directed. A direction for accumulation during a minority, accompanied with a- gift of the income of the accumulated fund, after the expiration of the minority, to the minor for life, and of the principal upon his death to other persons, is void.’’ These cases are controlling, and the distinction sought to be made between them and the one at bar we regard as untenable. If we are right in our view that the plaintiff has but a life interest in the-fund, whether we regard such fund as the result of the original capital, or of such capital as increased by the accumulated income, then it is evident that the accumulation resulting during minority, although the plaintiff would receive the interest arising therefrom," when added to the capital, is not solely for the benefit of such minor, but will go upon her death to her appointees or her children.' We think, therefore, that, with regard to the first question, the statutes of this state do not permit the accumulated income to be added to the capital when plaintiff attained majority, and thereafter to be held in trust; and, secondly, that the sum of $7,500 (being such accumulated income) should be paid to the plaintiff. Judgment accordingly, with costs. All concur.