Opinion
November Term, 1899.
J. Lee Tucker, Albert C. Tennant and A. Raymond Gibbs, for the appellants.
Hobart Krum, for the respondent.
The contention of the appellants is that the provisions of the 16th and 17th clauses of the will of David Wilber operate as an unlawful suspension of the power of alienation of the property referred to in those clauses, and that, therefore, the ownership of such property passes to the appellants, George I. Wilber and David F. Wilber, who are the sole residuary devisees and legatees named in the will, and are also the sole heirs at law and next of kin of the testator.
If, under the provisions of the 17th clause, the defendant Edith M. Wilber, the only grandchild of the testator living at the time of his death, became vested at that time with the entire title, subject only to the provisions of the 16th clause, then the entire ownership was in persons in being, there was no trust, and there was no suspension of the power of alienation. ( Williams v. Montgomery, 148 N.Y. 519; Sawyer v. Cubby, 146 id. 192.)
There is no doubt that under the present and direct devise and bequest in the 17th clause, the entire title vested at the death of the testator in the grandchild. Such was the meaning of the words used and such manifestly was the intention of the testator. ( Tucker v. Bishop, 16 N.Y. 404; Matter of Seaman, 147 id. 74.) The further question, however, arises whether the grandchild took an absolute fee subject only to the estate for years given by the 16th clause, or whether she took the fee subject, also, to open and let in after-born grandchildren to share with her the estate. The devise and bequest is "to my grandchildren, to be equally divided between them, share and share alike, subject only to the fifteen years' use of the same heretofore provided for." It is argued by the respondent that the class named will be ascertained and determined as of the death of the testator, in the absence of a different intention ( Campbell v. Rawdon, 18 N.Y. 412; Matter of Brown, 154 id. 314), and that there is here not only no different intention, but an intention that an absolute title should vest at his death subject only to the fifteen years' use.
If the title in the living grandchild was subject to open and let in after-born grandchildren, then the power of alienation would by possibility be suspended. It would be uncertain, until the death of the two sons, whether there would be other grandchildren. The suspension, however, caused by such uncertainty would in no event, in contemplation of law ( Tucker v. Bishop, supra; Smith v. Edwards, 88 N.Y. 92, 110; 4 R.S. [8th ed.] 2434, § 30), continue for a longer period than the lives of the two sons. At their death the members of the class of grandchildren would necessarily become fixed and determined, and persons would be in being who could give a complete title.
It is no objection that a remainder is limited in favor of persons not in being when the limitation is created, provided that the contingency upon which the final vesting depends must happen, and the persons entitled to take be ascertained within the permitted period. ( Hillen v. Iselin, 144 N.Y. 365, 378; Purdy v. Hayt, 92 id. 446.)
So that, whether the fee is to be deemed to be vested absolutely in the one grandchild at the death of the testator, or to be vested subject to letting in other possible grandchildren, there is in either event no unlawful suspension. There was nothing to prevent the owners of the estate for years from conveying their interest at any time, and the ownership of the fee was not illegally suspended.
The conclusion, therefore, of the trial court, that there was no unlawful suspension of the power of alienation, was correct. Nor is it apparent how the conditions in the 16th clause, requiring the legatees therein named to keep the personal property good, invalidates the bequest to the grandchildren. The latter take subject to the rights of the former, and are entitled, for aught that appears, to the benefit of such conditions as are imposed for their benefit. There was in substance a lease for fifteen years with reasonable conditions. The question of costs was in the discretion of the trial court. The action was practically for the benefit of the plaintiffs George I. and David F. Wilber. They failed to sustain their contention, and cannot justly complain as to the costs.
All concurred; LANDON, J., in result.
Judgment affirmed, with costs.