Opinion
December Term, 1902.
James M. Gifford, for the appellants.
Hoffman Miller, for the plaintiff, respondent.
Charles Maitland Beattie, for the respondent, New York Press Club.
Present — VAN BRUNT, P.J., PATTERSON, O'BRIEN, McLAUGHLIN and LAUGHLIN, JJ.
We are of the opinion that the order appealed from should be affirmed. When the agreement is read and considered as a whole it is clear that the parties to it intended that there should be a distribution of the fund referred to at and immediately following the death of Mrs. Garvey, and the income on this fund, which was directed to be paid to the Owens, was only to be paid during her life. This construction not only gives effect to the provision of the agreement which directs a distribution upon Mrs. Garvey's death, but it also makes the agreement a legal one, while the construction contended for by the appellants would make it illegal, inasmuch as it unlawfully suspends the power of alienation. This must have been so held by the referee, otherwise he would not have reached the conclusion that the agreement was a valid one. The general rule is that where an instrument is subject to two constructions, one of which would make it valid and the other invalid, the court will adopt the former in preference to the latter. ( Post v. Hover, 33 N.Y. 593; Greene v. Greene, 125 id. 512; Locke v. F.L. T. Co., 140 id. 149; Roe v. Vingut, 117 id. 204.)
The order appealed from is affirmed, with ten dollars costs and disbursements.
Order affirmed, with ten dollars costs and disbursements.