Opinion
November 16, 1906.
William Drennan and Paul Victor O'Neil, for the appellants.
Daniel T. O'Brien and Frank X. McCaffry, for the respondents.
The plaintiff brings this action for a partition of real estate under the provisions of section 1537 of the Code of Civil Procedure, alleging the invalidity of a trust provision in the will of Margaret O'Brien, deceased. The complaint has been dismissed, the plaintiff and one of the defendants appealing. The trust provision of the will is as follows: "I give and devise to my Executor hereinafter named any and all Real Estate of which I may die seized, to hold in trust for the benefit of my children, for which said purpose I hereby direct that my Executor apply whatever proceeds there may be therefrom to their benefit, until the youngest of my said children shall have attained the age of twenty-five years," etc. This is coupled with a discretionary power of sale, not material to the question presented on this appeal.
The defect alleged is that the will provides no termination of the trust estate, though a definite term is set apart for the trustees to make a particular disposition of the proceeds. This is clearly untenable. All trusts end when the purpose for which they have been created has been performed, and the testatrix having provided a trust fund to pay over the income to her children until the youngest of them shall be twenty-five years of age, the trust terminates upon the arrival of that time, because there is no further purpose of the trust to be accomplished.
But it is urged that if the above proposition is overruled that the trust is for a term fixed by years, and is, therefore, void. The trust is for the benefit of a class measured by the life, or a less time, of the testatrix's youngest child. It terminates absolutely upon the youngest child reaching the age of twenty-five years, and if he dies before that time the trust term is ended by his death. ( Sawyer v. Cubby, 146 N.Y. 192, 197.)
There is a perfectly valid trust, and the plaintiff is without a cause of action.
The judgment and order appealed from should be affirmed, with costs.
JENKS, HOOKER, RICH and MILLER, JJ., concurred.
Judgment and order affirmed, with costs.