Opinion
March, 1927.
John A. Anderson, for the executors.
Lawrence R. Condon, special guardian.
The accounting executors request a construction of the last will and testament of the decedent. The widow and all of the heirs and next of kin of the testator have filed a stipulation and consent that a certain construction be given to the language of the will. While such a stipulation might be binding upon the adult parties as against each other, the court can accord it no consideration, but must give such a construction to the instrument as its language warrants.
The first question arises as to paragraph "fourth" which provides as follows:
" Fourth. After the death of my said wife, I give and bequeath to each of my sons, Henry and Edward — the sum of one thousand dollars."
The son Henry died after the death of the decedent and it is urged that the legacy to him took effect upon the death of the decedent's wife, and as she is still alive, that it lapsed upon the death of the legatee, he having left no child or other descendant surviving. (Decedent Estate Law, § 29, as amd. by Laws of 1918, chap. 384.) With that contention I do not agree. The legacies to the two sons vested upon the death of the decedent. The words "After the death of my said wife" relate only to the time of possession and enjoyment of the legacies and not to the time as to which they vest. ( Connelly v. O'Brien, 166 N.Y. 406; Hersee v. Simpson, 154 id. 496, 500; Corse v. Chapman, 153 id. 466, 471; Livingston v. Greene, 52 id. 118, 123; Matter of Livingston, N.Y.L.J. Dec. 24, 1920.)
No provision is made for the payment of the income on the legacies in question pending the time when the legatees obtain possession thereof. If the intent of the decedent was that it should be accumulated, this could not legally be done under the statute. (Pers. Prop. Law, § 16, as amd. by Laws of 1915, chap. 670.) Hence, such income is payable to the persons presumptively entitled to the next eventual estate (Real Property Law, § 63, as amd. by Laws of 1916, chap. 364; Matter of Harteau, 204 N.Y. 292; Matter of Kohler, 231 id. 353, 375), that is, to the son, Edward, and to the estate of Henry, until the widow of the decedent dies when the legacies are distributable in the same manner.
By the 5th paragraph of his will the testator gives and bequeaths to his daughter, Lottie, the sum of $1,000, which shall not be paid to her "until her children, if any, shall have attained the age of 21 years; or, upon her becoming a widow before her children shall have become of age," and then provides:
" Sixth. Should my said daughter Lottie die without leaving issue, and before the happening of the events above set forth — then and in that event I give and bequeath the said sum of One thousand dollars to my said sons Henry and Edward to be divided equally between them share and share alike."
If the first limitation of the trust, namely, "until her children, if any, shall have attained the age of 21 years," were considered as standing alone and being the only language fixing its continuation, a question might well arise whether or not this involved an unlawful suspension of the power of alienation, for the reason that the daughter might have more than two children, some of whom might be born after the death of the testator ( Monypeny v. Monypeny, 202 N.Y. 90, 93), although it would not be free from doubt if the daughter did not have more than two children at the time of decedent's death. ( Seitz v. Faversham, 205 N.Y. 197; Jacoby v. Jacoby, 188 id. 124, 131.) However, we must not read that clause alone, but with the other provisions of the will of which it forms a part.
It is a fundamental principle that the intent of the testator shall be carried out if possible ( Matter of Evans, 234 N.Y. 42; Matter of Silsby, 229 id. 396; Stewart v. Stewart, 205 A.D. 587) ; also that a construction should be favored which tends to uphold the provisions of the will rather than one which would destroy them ( Matter of Hitchcock, 222 N.Y. 57; Schult v. Moll, 132 id. 122, 127; Matter of Buechner, 226 id. 440), and that a construction which would involve an intestacy should, if possible, be avoided. ( Matter of Ossman v. Von Roemer, 221 N.Y. 381; Haug v. Schumacher, 166 id. 506; Meeks v. Meeks, 161 id. 66.) The language of paragraph "sixth" indicates that the decedent intended that the trust mentioned should end upon the death of his daughter, unless it had been terminated before that time by her children attaining the age of twenty-one years or by her becoming a widow. If it was terminated by her death, leaving issue, the issue were to take, but if no issue survived, the legacy was to be distributed to the two sons, Henry and Edward. As, therefore, the term of the trust could under no circumstances continue for a longer period than one life in being, the testator could within that life period provide for any other limitations which he desired. ( Van Cott v. Prentice, 104 N.Y. 45, 57; Montignani v. Blade, 145 id. 111.)
I hold that the trust is valid, and there being no disposition of the income pending its termination, such income is payable to the daughter as the person presumptively entitled to the next eventual estate. (Real Property Law, § 63; Matter of Harteau, supra; Matter of Kohler, supra.)
I find no authority permitting the court under the language of this will to accelerate the three legacies above referred to, as requested by the petitioners.
By the 7th paragraph of his will the testator attempts to create a trust of the residue of his estate and provides for the payment of the income to his children as therein more particularly set forth. No time limit is set for such trust, but in the 8th paragraph he provides as follows:
" Eighth. Twenty years after my death, I order and direct my executors and Trustees to distribute my estate to and among my said Children share and share alike excepting however that the share which would come to my said daughter Lottie, should she have children and should she not be a widow — shall be held in trust for her children and be paid over or retained by my said trustees for the support and maintenance of my said children. Should she become a widow, then I direct that her share be paid over to her, her heirs or assigns."
This trust, therefore, is for a specific number of years, and is not measured by lives. Hence, there is a violation of the statute (Pers. Prop. Law, § 11; Real Property Law, § 42; Brown v. Quintard, 177 N.Y. 75; Matter of Wilcox, 194 id. 288; Matter of Hitchcock, supra), and it follows that the trust is invalid and that the residue must be distributed as in a case of intestacy.
Settle decision and decree accordingly.