Opinion
March, 1920.
Stewart Shearer (McCready Sykes), for plaintiff.
Root, Clark, Buckner Howland (Vanderbilt Webb), for defendant Webb.
Richmond J. Reese and Richard H. Clarke, for Charles Eastman et al.
Plaintiff sues for a judicial settlement of its accounts as trustee of a trust created by an agreement made on July 1, 1899, between Henry Walter Webb, Sr., and the United States Trust Company. By the terms of the trust agreement the settlor transferred to the trust company certain securities to be held in two equal and distinct trust funds. The settlement of only one of these trust funds is involved in this action. Under the provisions of the trust the trustee was to pay the income of the fund to the wife of Henry Walter Webb, Sr., until her death or remarriage. Thereafter the income was to go to Walter Webb, Jr., for his life. The latter was also to get one-half of the principal of the fund at that time, if he had already reached the age of thirty, or thereafter when he should reach such age. Upon Walter Webb, Jr.'s, death the balance of the fund was to be distributed as he in his will directed, and upon his failure to so direct the balance was to be divided equally between his surviving uncles. In the year 1900 Henry Walter Webb, Sr., died, and the trust company continued to pay the income to his widow until the year 1904, when she remarried. At that time Walter Webb, Jr., had not reached the age of thirty years, and accordingly he received the income from the entire fund. In the year 1916 Walter Webb, Jr., became thirty years of age and one-half of the principal of the fund was paid to him, and he received the income from the remaining one-half until his death on January 18, 1919. In his will he attempted to exercise the power of appointment given to him over the trust fund. In paragraph (E) of part first of the will there are directions as to the distribution of the residue of the fund in case the testator left his wife, Constance E. Webb, surviving him. She did survive him, but died on July 8, 1919. The principal question at issue is the interpretation and the validity of paragraph (E) of the first part of the will. In brief, the testator bequeathed one-quarter of the residue of the trust fund to his widow absolutely, and in the event of the testator's death without lineal descendants the remaining three-quarters to his wife for life or until her remarriage, with remainders over to his brother, J. Griswold Webb, the latter's lineal descendants, and finally to the testator's three uncles or their issue per stirpes. The testator further requested his widow to convey her life estate to trustees upon certain trusts. The testator died without issue, and his brother, John Griswold Webb, was born August 13, 1890. The administrators of the estate of Constance E. Webb now claim that the power of appointment was invalidly exercised by Walter Webb, Jr., with respect to the trust fund residue, and that in consequence thereof the next of kin of his deceased widow are entitled to the entire trust fund residue by operation of law and by the Statute of Distributions of the state of New York. In this position they stand apart from all other parties to the suit. The plaintiff contends that the estate should be distributed in accordance with the directions of the will of Walter Webb, Jr., executing the power of appointment confided in him by his deceased father. The validity of the appointment of one-fourth of the trust fund residue to Constance Webb, absolutely, is unquestioned. This gift was subject to no limitations over, and passed to her outright upon the testator's death. It amply provided, upon her death, for the relatives of Constance Webb. With respect to the remaining three-quarters, I am satisfied that the testator specifically directed that it should pass to his widow "to be held and enjoyed by her during her life or until her remarriage." The will not only in precise words restricts the widow's interest to a life estate, but proceeds to limit various remainders on this legal life estate. The will then provides that the widow might convey her legal life estate in trust, because the testator had been unable, under the law against the suspension of absolute ownership, to leave it in trust for her. If he died leaving his widow without children she was to get everything during her lifetime, and care was exercised to provide that at her death the property was not to go to her next of kin, but should return to the testator's brother, John Griswold Webb. In this disposition he followed the plan and theory of his father's trust gift. It seems to have been the family scheme to give the beneficial uses of the property to the respective widows for life, and thereafter the property should pass over to those of the testators' flesh and blood; in a word, that the property should not pass into alien channels. Under section 43 of the Real Property Law the prohibition against more than two successive life estates has no application. In the case at bar the property was held in trust for the lives of his mother and Walter Webb, Jr., the trust being followed by the appointment under a power of a legal life estate to Constance Webb, and of a legal remainder in fee to John Griswold Webb. The authorities hold that section 43 of the Real Property Law does not apply to trusts, but only to legal life estates. La Farge v. Brown, 31 A.D. 524; Matter of Hurlbut, 51 Misc. 263; Matter of Abbey, 98 id. 506. I hold that judgment in favor of the plaintiff may be entered directing the payment of one-fourth of the principal of the estate of Walter Webb, Jr., to the administrators of Constance E. Webb, less advances heretofore made thereon, and of the residue to John Griswold Webb, without costs, payable out of the share passing to the administrators of Constance E. Webb.
Judgment accordingly.