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and 114 New York State Reporter 8. SAME

Where a will provides for the accumulation of the income on a legacy to an infant until he reaches the age of 25, such direction is valid until

he becomes of age, after which time he will be entitled to the income. Action by Bertha Tobin against Frederick H. Graf and others to construe a will. Judgment rendered.

George P. Breckenridge, for plaintiff.
Hugo H. Ritterbusch, for defendant trustees,
Henry Fried, for defendant Mary C. Kiefer.

Leon Lewin, guardian ad litem for infant defendant Henry S. Kiefer.

see fit.

STECKLER, J. The will of Catharine Kiefer, deceased, for a construction of which the action is brought, contains the following provisions :

"All the rest, residue, and remainder of my estate, of whatsoever kind, and wheresoever situate, I give, devise, and bequeath unto my daughter, Bertha Tobin, forever, providing that her husband, John T. Tobin, shall have predeceased me; but, if the said John T. Tobin survive me, then and in that event all the rest, residue, and remainder of my estate I give, devise, and bequeath unto Frank H. Graf and Charles Frederick Gruninger, or survivor of them, in trust for my daughter, Bertha Tobin, until the death of her husband, John T. Tobin, at which time they are directed to transfer and convey unto her the whole of said estate, with accumulated profits, forever. If my daughter, Bertha Tobin, shall predecease me or predecease her husband, then and in that event I give, devise, and bequeath all the rest, residue, and remainder of my estate unto my grandson Henry S. Kiefer, the child of my son Henry, forever. The trustees, in whom I have full confidence, have full power to manage, sell, or invest my estate as they, in their sound judgment,

I further direct the rents, issues, and profits be accumulated as capital."

Bertha Tobin, the daughter of the testatrix, survived her mother, and Bertha's husband, John T. Tobin, is living. It was evidently the intention of the testatrix that Bertha Tobin should receive neither the principal nor interest of the residuary fund until the death of her husband.

The direction for the accumulation of income on the gift in trust for the benefit of Bertha Tobin, not being for the benefit and during the minority of an infant, is unlawful. Real Property Law, $ 51; Personal Property Law, § 4; Pray v. Hegeman, 92 N. Y. 508. So that, if the residuary estate was realty the trust would be void, for it is not one of those authorized by Real Property Law, $ 76; a trust in real estate being invalid unless brought within the terms of the statute. Hagerty v. Hagerty, 9 Hun, 175. But the residuary estate consisted solely of personalty, and trusts of personal property are not, in respect either of the mode or purposes of their creation, within the statute of uses and trusts (In re Carpenter, 131 N. Y. 86, 29 N. E. 1005; Hagerty v. Hagerty, supra), and may be created for any purpose not per se illegal (Gilman v. Reddington, 24 N. Y. 9). It is true that in Maitland v. Baldwin, 70 Hun, 270, 24 N. Y. Supp. 31, the contrary doctrine seems to be stated; but that statement is mere dictum, for it was not necessary in the disposition of the case. A void direction for accumulation does not invalidate the gift or bequest of the principal, which, if valid, may stand without the accumulation. Williams v. Williams, 8 N. Y. 538; Kilpatrick v. Johnson, 15 N. Y. 322; Barbour v. De Forest, 95 N. Y. 13; Hascall v. King, 162 N. Y. 134, 56 N. E. 515, 76 Am. St. Rep. 302. It seems to me, therefore, that if, apart from the direction for accumulation, a valid trust was created by the testatrix, it is the duty of the court, to prevent intestacy, to leave that trust intact, so as to preserve the general plan of the testatrix. Kalish v. Kalish, 166 N. Y. 368, 59 N. E. 917. Apart from the accumulation, the trust had a legal purpose, for it was plainly the design of the testatrix that Bertha should receive the residuary estate; that the executors should hold the property until the death of John T. Tobin, and then transfer it to Bertha, if living; and the direction to the trustees, on the death of John T. Tobin, to transfer and convey the property to Bertha (although, even if the corpus was realty, the statute would doubtless operate to execute the use in the beneficiary in case of the failure of the trustees to convey), makes the trust an active one. Townshend v. Frommer, 125 N. Y. 446, 26 N. E. 805. And see Holly v. Hirsch, 135 N. Y. 590, 32 N. E. 709; Reynolds v. Denslow, 80 Hun, 359, 30 N. Y. Supp. 77. The trust having been created for a proper purpose, and the power of alienation not having been unduly suspended, it follows that the trust is valid.

The situation is similar to that presented in Hascall v. King, 162 N. Y. 134, 56 N. E. 515, 76 Am. St. Rep. 302, where the court said (page 152, 162 N. Y., page 520, 56 N. E., 76 Am. St. Rep. 302):

“But it does not follow that the entire trust should be held to be void because of the direction to unlawfully accumulate a part of the income. The rule is that where there are two trust objects, one of which is principal, and the other alternative, and the latter only is void, the principal trust may stand, and the other fail. That rule is applicable to this situation, and should govern it. The primary object of this testator, by the creation of this trust, was to provide an income for his wife; the accumulation for the purpose of paying mortgages being secondary.”

So in this case the primary object of the testatrix was that her daughter, Bertha, should receive on the death of John T. Tobin the residuary estate; the disposition of the income from the fund being of secondary importance in the design of the testatrix.

The question as to the disposition of the income from the residuary fund, the accumulation of which income would be void, remains to be considered. Section 2 of the personal property law (Laws 1897, C. 417), after providing that the absolute ownership of personal property shall not be suspended for more than two lives in being, states that:

"In other respects limitations of future or contingent interests in personal property, are subject to the rules prescribed in relation to future estates in real property."

The real property law (Laws 1896, c. 547, § 53) provides that:

“When, in consequence of a valid limitation of an expectant estate, there is a suspension of the power of alienation, or of the ownership, during the continuance of which the rents and profits are undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the persons presumptively entitled to the next eventual estate.”

and 114 New York State Reporter The last provision cited, therefore, refers also to personal property. Cook v. Lowry, 95 N. Y. 104.

Who is the person presumptively entitled to the next eventual estate in this case ? The trustees have a present estate in the property. In case of the death of John T. Tobin before his wife, the plaintiff, she will be entitled to the fund, while, in the event of Bertha Tobin predeceasing her husband, the property will go to Henry S. Kiefer. The trust was made primarily for the benefit of the plaintiff, and it seems to me that, within the meaning of the statute, she is the person presumptively entitled to the next eventual estate.

The testatrix also directed the accumulation of income upon a legacy given by her to her infant grandson, Henry S. Kiefer, until the legatee should reach the age of 25 years. Such direction, as respects the time beyond the minority of the infant, is void, but the bequest and the accumulation until the infant arrives at his majority are valid. Kilpatrick v. Johnson, supra. Said legatee is therefore entitled to the income earned by the fund after his twenty-first birthday, and, when he arrives at the age of 25 years, to the fund as it shall exist on his twenty-first birthday. See Lang v. Ropke, 5 Sandf. 363.

Submit form of decision and decree in accordance with these views. Judgment accordingly. (39 Misc. Rep. 401.)

ORUIKSHANK V. CRUIKSHANK et al. (Supreme Court, Special Term, Kings County. December, 1902.) 1. WILL-CONSTRUCTION-NATURE OF ESTATE.

Testator died, leaving a daughter, who thereafter died, leaving a son, who sued for the construction of a holographic will of his grandfather. The will provided for a life trust in behalf of the daughter, and that after her death the income should be used for the support of her surriving children during minority, the principal to be paid at majority to such issue, but that if no issue survived, or if the issue died before “maturity,” the principal should go equally to testator's "remaining children." A codicil provided for the amendment of such bequest by giving to such issue the income of the fund, instead of the principal, and, “with this end in view, I therefore give to my executors full power and authority to act as trustees of said issue, and in like manner as in the case of the daughter." Held, that the grandson took only a life interest in the body of the estate, and testator's remaining children took

the remainder. 2. SAME-VESTED INTEREST.

Where a will gives certain property to trustees, the income to be paid to testator's grandson for life, with remainder to testator's children, such remainder vests in the children on the testator's death, and is not affected by a power given the trustees to sell any of the property upon the consent

of certain of the beneficiaries, with directions to reinvest. Action by James H. Cruikshank against Edwin A. Cruikshank and others to construe a will. Judgment for defendants.

Russell E. Burke and William Harison, for plaintiff.
Edward De Witt, for the defendant trustees.

J. Bradley Tanner, for defendants Warren Cruikshank, Edwin A Cruikshank, and Carrie C. Timpson.

William H. Harris, guardian ad litem for infant defendant.

MADDOX, J. The will and codicils under consideration, holographic in character, were prepared with evident care; and the will alone, by itself, comprehensively presents a complete scheme, is readily and without difficulty construed and interpreted, and testator's plan and purpose made plain. It is with the second codicil that question is raised, and that of a serious nature, since it involves the possible disinheriting of a grandchild, save as to the income during his life of a trust fund of about $50,000. Testator's intention must be gathered, if possible, after a careful scrutiny and consideration of all the language employed in the will and the three codicils, as one instrument, and his purpose, when ascertained, effectuated, and not frustrated because of any inapt or incomplete expression or by reason of an inadvertent omission in a provision or item thereof; and the language of a holographic will should be given its ordinary and popular significance and meaning, rather than a technical interpretation, especially if the testator be a layman.

The controversy here is as to the final disposition of the corpus of the trust created for the benefit of the daughter Hattie and her issue, by the fourth item of testator's will, as the provisions thereof are affected and changed by the second and third sentences of his second codicil. By said fourth item the testator gave and devised certain property to his"Executors, in trust, for the benefit of my daughter Hattie during life;

and all moneys derived thereby from rents, dividends, interest, and from all other sources, are to be paid over in quarterly payments to my said daughter Hattie, after all taxes, insurance, repairs, and other proper charges. including a commission of five per cent. on sums collected as income for their services, bave been deducted and paid. On the death of my said daughter Hattie, leaving issue, her surviving, the income derived from this trust, or so much of it as my executors may deem proper, is to be used for the support, education, and maintenance of such issue during minority, and when that is reached the entire principal is to be paid over to such issue; and in case there be no issue, her surviving, or the issue die before maturity, then, in either event, the said principal is to go to my remaining children, share and share alike."

A trust provision similar in every respect to the foregoing was made in favor of testator's other daughter, Carrie, and her issue, which was not changed by any of the codicils; and the bequests and devises to the three sons are alike in tenor, and absolute in terms.

By the second codicil testator, among other things, provided as follows:

"Under section four of said will I have given to the issue of my daughter Hattie at her death the entire principal, real and personal, of the fund held by my executors in trust for her use and benefit during her life. This bequest I bereby amend by giving to said issue the income of said fund, instead of the principal; and, with this end in view, I hereby give to my executors full power and authority to act as trustees of said issue, and in like manner and respect as in the case of Hattie during her lifetime."

It is plaintiff's contention that the gift of the principal of that trust to Hattie's issue was not revoked by the second codicil

, and that he, as the sole issue, has a vested remainder therein, subject to an equitable life estate; that the control and enjoyment only of the principal are postponed, and instead thereof that he takes the income

and 114 New York State Reporter The last provision cited, therefore, refers also to personal property. Cook v. Lowry, 95 N. Y. 104.

Who is the person presumptively entitled to the next eventual estate in this case? The trustees have a present estate in the property. In case of the death of John T. Tobin before his wife, the plaintiff, she will be entitled to the fund, while, in the event of Bertha Tobin predeceasing her husband, the property will go to Henry S. Kiefer. The trust was made primarily for the benefit of the plaintiff, and it seems to me that, within the meaning of the statute, she is the person presumptively entitled to the next eventual estate.

The testatrix also directed the accumulation of income upon a legacy given by her to her infant grandson, Henry S. Kiefer, until the legatee should reach the age of 25 years. Such direction, as respects the time beyond the minority of the infant, is void, but the bequest and the accumulation until the infant arrives at his majority are valid. Kilpatrick v. Johnson, supra. Said legatee is therefore entitled to the income earned by the fund after his twenty-first birthday, and, when he arrives at the age of 25 years, to the fund as it shall exist on his twenty-first birthday. See Lang v. Ropke, 5 Sandf. 363.

Submit form of decision and decree in accordance with these views. Judgment accordingly. (39 Misc. Rep. 401.)

ORUIKSHANK v. CRUIKSHANK et al. (Supreme Court, Special Term, Kings County. December, 1902.) 1. WILL-CONSTRUCTION-NATURE OF Estate.

Testator died, leaving a daughter, who thereafter died, leaving a son, who sued for the construction of a holographic will of his grandfather. The will provided for a life trust in behalf of the daughter, and that after her death the income should be used for the support of her surviving children during minority, the principal to be paid at majority to such issue, but that if no issue survived, or if the issue died before "maturity,” the principal should go equally to testator's “remaining children.” A codicll provided for the amendment of such bequest by giving to such issue the income of the fund, instead of the principal, and, "with this end in view, I therefore give to my executors full power and authority to act as trustees of said issue, and in like manner as in the case of the daughter." Held, that the grandson took only a life interest in the body of the estate, and testator's remaining children took

the remainder. 2. SAME-VESTED INTEREST.

Where a will gives certain property to trustees, the income to be paid to testator's grandson for life, with remainder to testator's children, such remainder vests in the children on the testator's death, and is not affected by a power given the trustees to sell any of the property upon the consent

of certain of the beneficiaries, with directions to reinvest. Action by James H. Cruikshank against Edwin A. Cruikshank and others to construe a will. Judgment for defendants.

Russell E. Burke and William Harison, for plaintiff.
Edward De Witt, for the defendant trustees.

J. Bradley Tanner, for defendants Warren Cruikshank, Edwin A Cruikshank, and Carrie C. Timpson.

William H. Harris, guardian ad litem for infant defendant.

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