Opinion
June 15, 1906.
S.P. Cahill, for the appellants Mary C. Flynn and others.
Robert P. Orr, for the appellant John Flynn, Jr.
Forbes J. Hennessy, for the appellants William J. Flynn, Jr., and J. Philip Cahill.
T. Ellett Hodgskin, for the respondent The People's Trust Company.
Michael F. McGoldrick, for the respondent Annie D. Flynn.
David McClure, for the respondent Charles E. Egan, Jr.
We desire to add nothing to the discussion on the former appeal ( 106 App. Div. 78) except in reference to the point again forcibly urged upon us that the widow, having elected to take dower, the provision for her benefit should be eliminated in determining the question of the suspension of the power of alienation. In support of this proposition our attention is called to an excerpt from the opinion of Judge MILLER in Bailey v. Bailey ( 97 N.Y. 460, 471). But it will be noted that the provision for the wife in that case was wholly independent of the trust, and the decision was expressly placed upon the ground that the estate given her was assignable and that, therefore, there was no suspension during her life; as stated by the learned counsel for the respondent trust company herein, the Bailey case was cited in Corse v. Chapman ( 153 N.Y. 466, 473), but only upon the proposition that a life estate given the widow independent of the trust was alienable. Research of counsel supplemented by our own has failed to disclose a single case holding that a void testamentary disposition is made valid by the refusal of one of the beneficiaries to accept the benefit of its provisions; on the contrary, the Court of Appeals has frequently reiterated the rule that "where, by the terms of an instrument creating an estate, there may be an unlawful suspension of the power of alienation or of the absolute ownership, the limitation is void, although it turn out by subsequent events that no actual suspension beyond the prescribed period would have taken place." ( Herzog v. Title Guarantee Trust Co., 177 N.Y. 86, and cases cited on page 99.)
We think this case presents no exception to the rule, and for this reason, in addition to those stated in our former opinion, affirm the judgment now appealed from, with costs to all parties to the appeal, payable out of the fund.
HIRSCHBERG, P.J., JENKS, HOOKER and RICH, JJ., concurred.
Judgment affirmed, with costs to all parties to the appeal, payable out of the fund.