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28 N. E. 585; Haynes v. Sherman, (1889) 117 N. Y. 433, 22 N. E. 938, reversing judgment 51 Hun 585, 4 N. Y. S. 413; Knox v. Jones, (1872) 47 N. Y. 389; Schettler v. Smith, (1869) 41 N. Y. 328; Chastain v. Tilford, (1910) 138 App. Div. 746, 123 N. Y. S. 513, affirmed (1911) 201 N. Y. 538, 94 N. E. 646; New York Life Ins., etc., Co. v. Cary, (1907) 120 App. Div. 264, 105 N. Y. S. 125, reversed on other grounds (1908) 191 N. Y. 33, 83 N. E. 598; Matter of Howland, (1902) 75 App. Div. 207, 77 N. Y. S. 1025, reversing 37 Misc. 114, 74 N. Y. S. 950; Matter of Russell, (1887) 5 Dem. 388; King v. Rundle, (1853) 15 Barb. 139; Vail v. Vail, (1849) 7 Barb. 226, affirmed 10 Barb. 69; Craig v. Hone, (1835) 2 Edw. Ch. 553. See also Davidge v. Wiggins, (1912) 137 N. Y. S. 127.
Character of the two lives. It is not required that the lives during which the power of alienation is suspended should be those of beneficiaries under the will or instrument limiting the estate; if the estate may be alienated absolutely at the expiration of any two lives in being at the time of its creation, the statute is complied with. Crooke v. Kings County, (1884) 97 N. Y. 421; Bailey v. Bailey, (1884) 97 N. Y. 460, modifying judgment 28 Hun 603.
Testamentary trust for a fixed period.— A testamentary trust for a fixed period of years is void under the present section of the statute, since it is not a limitation to two lives in being. Phelps v. Pond, (1861) 23 N. Y. 69, modifying 28 Barb. 121; Davis v. MacMahon, (1914) 161 App. Div. 458, 146 N. Y. S. 657, affirmed (1915) 214 N. Y. 614, 108 N. E. 1092; Matter of Berry, (1913) 154 App. Div. 509, 139 N. Y. S. 186, affirmed (1913) 209 N. Y. 540, 102 N. E. 1099; Bailey v. Buffalo Loan, etc., Deposit Co., (1912) 151 App. Div. 166, 135 N. Y. S. 344, reversing on other grounds 75 Misc. 23, 132 N. Y. S. 513; Hagemeyer v. Saulpaugh, (1904) 97 App. Div. 535, 90 N. Y. S. 228; McGuire v. McGuire, (1903) 80 App. Div. 63, 80 N. Y. S. 497; In re Pierce, (1912) 76 Misc. 85, 136 N. Y. S. 323; Converse v. Kellogg, (1850) 7 Barb. 590; Matter of Underhill, (1888) 6 Dem. 466; Matter of Starr, (1884) 2 Dem. 141; Hone v. Van Schaick, (1838) 7 Paige 221, affirmed 20 Wend. 564. See also Sullivan v. Parkes, (1902) 69 App. Div. 221, 74 N. Y. S. 787.
Limitation on minorities.-A limitation upon minorities is a limitation upon lives. Scott v. Monell, (1862) i Redf. 431; Hawley v. James, (1836) 16 Wend. 61.
Suspension during minority.- The suspension of the ownership of personal property during a minority is not equivalent to a suspension for a fixed period, but amounts at most to a suspension as to but part of a life, because the law reads into such a suspension the alternative condition that the suspension shall terminate if the life chosen as the standard of duration should end before the expiration of the minority. Matter of Lally, (1910) 136 App. Div. 781, 121 N. Y. S. 467, affirmed (1910) 198 N. Y. 608 mem., 92 N. E. 1089. See also Matter of Lapham, (1885) 37 Hun 15; Jansen v. Cairnes, (1848) 3 Barb. Ch. 350.
Suspension by trust. - Where a trust is created by which the possession of personal property and the legal estate therein is vested in trustees during the continuance of the trust, the absolute ownership of the property is suspended, and to validate the trust the duration of the suspension must be limited to two lives in being, not to a term of years however short. Underwood v. Curtis, (1891) 127 N. Y. 523, 28 N. E. 585. See also Murray v. Miller, (1904) 178 N. Y. 316, 70 N. E. 870, affirming 85 App. Div. 414, 83 N. Y. S. 591; Cottman v. Grace, (1889) 112 N. Y. 299, 19 N. E. 839, 3 L. R. A. 145, reversing 41 Hun 345, 2 N. Y. St. Rep. 630; Gilman v. Reddington, (1861) 24 N. Y. 9; Stoiber v. Stoiber (1899) 40 App. Div. 156, 57 N. Y. S. 916.
Separation of valid from illegal portion of trust.— In trusts of personal property, a suspension of the absolute ownership of a part, illegally, will not render void the disposition of the residue. The statute is to be allowed to
work out the destruction of the legal parts only when they would of necessity uphold the illegal parts with them. Dupre v. Thompson, (1848) 4 Barb. 279, affirmed 8 Barb. 537. See also in support of this principle, Richards v. Moore, (1881) 5 Redf. 278.
Suspension by agreement. The statute against perpetuities represents the public policy of the state, and its provisions cannot be waived by interested parties on the theory that it was enacted for their benefit. Church v. Wilson, (1912) 152 App. Div. 844, 137 N. Y. S. 1002, affirmed (1913) 209 N. Y. 553, 103 N. E. 1122.
Cited.-- This section was cited in the following cases:
St. John v. Andrews Institute for Girls, (1908) 191 N. Y. 254, 83 N. E. 981, 14 Ann. Cas. 708, modifying 117 App. Div. 698, 102 N. Y. S. 808, in connection with the construction of section 16. See infra, § 16 note.
Robinson v. New York Life Ins. Co., (1911) 75 Misc. 361, 133 N. Y. S. 257, in connection with the construction of section 23. See infra, § 23 note.
Ransom v. Ransom, (1910) 70 Misc. 30, 127 N. Y. S. 1027, reversed 147 App. Div. 835, 133 N. Y. S. 173, in connection with the construction of section 15. See infra, § 15 note.
The section was also cited in Matter of Seaman, (1895) 147 N. Y. 69, 41 N. E. 401; Fellows v. Heermans, (1870) 4 Lans. 230; Reynolds v. Reynolds, (1915) 167 App. Div. 90, 152 N. Y. S. 661; Norris v. Beyea, (1855) 13 N, Y. 273; Cutting v. Cutting, (1881) 86 N. Y. 522; In re Roger, (1914) 149 N. Y. S. 462; In re Hansen, (1911) 72 Mis. 610, 132 N. Y. S. 257.
II. APPLICATION OF SECTION
1. In General
Number of beneficiaries.— While a testator may not suspend the absolute power of alienation for a period exceeding two selected lives in being at the creation of the estate, he may during that time make such disposition of the annual income among as many persons as he sees fit. Thus having created a trust term which must end within the period required by the statute, he may provide that the income shall be paid during that time to A for life, remainder to B for life, remainder to C for life, and so on for as many different lives as he chooses, provided the whole trust term ends with the death of the survivor of the two lives. Schermerhorn v. Cotting, (1892) 131 N. Y. 48, 29 N. E. 980. To the same effect are Bird v. Pickford, (1894) 141 N. Y. 18, 35 N. E. 938, reversing judgment 71 Hun 142, 25 N. Y. S. 46; Crooke v. Kings County, (1881) 97 N. Y. 421; Bailey v. Bailey, (1884) 97 N. Y. 460; Manice v. Manice, (1871) 43 N. Y. 303; Ripley v. New York Guaranty Trust Co., (1914) 165 App. Div. 481, 151 N. Y. S. 12; Kahn v. Tierney, (1909) 135 App. Div. 897, 120 N. Y. S. 663, affirmed (1911) 201 N. Y. 516, 94 N. E. 1095. See also Underwood v. Curtis, (1891) 127 N. Y. 523, 28 N. E. 585; Nester v. Nester, (1909) 68 Misc. 207, 118 N. Y. S. 1009, 124 N. Y. S. 974.
Separate trusts in individual funds.— Where from the entire will it is clear that the respective interests of the beneficiaries in an undivided estate shall be distinct and separate, the trust will be valid, even though the property is to be held in solido by the trustees throughout the successive lives of the several beneficiaries. Matter of Verplanck, (1883) 91 N. Y. 439; Everitt v. Everitt, (1864) 29 N. Y. 39; Cheever v. Cheever, (1916) 172 App. Div. 353, 157 N. Y. S. 428; Orr v. Orr, (1911) 147 App. Div. 753, 133 N. Y. S. 48, affirmed (1914) 212 N. Y. 615, 106 N. E. 1037; In re Fidelity Trust Co., (1916) 94 Misc. 533, 160 N. Y. S. 193; Matter of Hoffman, (1909) 65 Misc. 126, 121 N. Y. S. 100, affirmed 140 App. Div. 121, 124 N. Y. S. 1089; Matter
of Lapham (1885) 37 Hun 15; Clancy v. O’Gara, (1876) 4 Abb. N. Cas. 268. In such cases there is a separate trust as to each of the fractions of the estate which is subject to no limitation or suspension for any period other than the lives of the persons for whom the specific fraction is to be held in trust. Pruyn v. Sears, (1916) 96 Misc. 200, 161 N. Y. S. 58; Matter of Hoffman, (1909) 65 Misc. 126, 121 N. Y. S. 100, affirmed 140 App. Div. 121, 124 N. Y. S. 1089; In re Hinchman, (1910) 141 App. Div. 95, 125 N. Y. S. 699.
Thus, in Matter of Verplanck, (1883) 91 N. Y. 439, it appeared that a will bequeathed to executors the sum of $30,000 in trust “ to pay over the net income of $10,000, part of such sum,” to each of three unmarried nieces of the testatrix so long as each remained single; upon the marriage of any one of them to pay over to her $1,000 of the principal sum of $10,000, and to pay over the residue thereof to the surviving nephews and nieces of the testatrix. It was held that this bequest did not involve an unlawful suspension of the power of alienation, since each legatee was interested only in $10,000 of the trust fund, and as to each third the trust remained only for the life of the legatee, and when extinguished by her death or marriage the title to that portion of the bequest would immediately vest.
Liberation of separate trust from individual fund.- In cases where a trust for the benefit of several persons is held in one fund it is necessary for the purpose of holding that they constitute separate and independent trusts that each part of the principal fund should be liberated from the trust fund upon the termination of the lives in being at the death of the testator for which the trust is held, and also to find from within the will itself that such was the intention of the testator. Leach v. Godwin, (1910) 198 N. Y. 35, 91 N. E. 288, reversing 127 App. Div. 98, 111 N. Y. S. 373. See also Matter of Verplanck, (1883) 91 N. Y. 439; Wells v. Wells, (1882) 88 N. Y. 323, affirrning 25 Hun 647; Post v. Bruere, (1908) 127 App. Div. 250, 111 N. Y. S. 51.
When testamentary gift suspended.- If futurity is annexed to the substance of a testamentary gift the vesting is suspended; but if the gift is absolute and only the time of payment is postponed the gift is not suspended but vests at once. Clark v. Cammann, (1899) 160 N. Y. 315, 54 N. E. 709, affirming 14 App. Div. 127, 43 N. Y. S. 575; Miller v. Gilbert, (1894) 144 N. Y. 68, 38 N. E. 979; Smith v. Edwards, (1882) 88 N. Y. 92; In re Gurnee, (1914) 84 Misc. 324, 147 N. Y. S. 396; In re Lincoln Trust Co., (1912) 76 Misc. 421, 137 N. Y. S. 162; In re Becker, (1908) 59 Misc. 135, 112 N. Y. S. 221; Clark v. Clark, (1898) 23 Misc. 272, 50 N. Y. S. 1041; In re Conger, (1903) 81 App. Div. 493, 80 N. Y. S. 933, affirming 40 Misc. 157, 81 N. Y. S. 733; Burrill v. Sheil, (1848) 2 Barb. 457. See also Matter of Trumble, (1910) 199 N. Y. 454, 92 N. E. 1073, modifying judgment 137 App. Div. 483, 122 N. Y. S. 763; Greenland v. Waddell, (1899) 116 N. Y. 234, 22 N. E. 367, 15 A. S. R. 400.
Postponement of sale by executors as suspension of power of alienation.The statute inhibiting perpetuities is directed only to the power of alienation, not to the time of its actual exercise. The mere fact, therefore, that it may be the duty of executors, in the exercise of their discretion, to postpone a sale to await a more favorable market, does not constitute such a restraint as suspends the power of alienation within the meaning of the statute. Henderson v. Henderson, (1889) 113 N. Y. 1, 20 N. E. 814; Robert v. Corning, (1882) 89 N. Y. 225.
Effect of statute upon extraterritorial bequests. This section does not interdict bequests, within the prohibition, made in another state or country to take effect here, and such bequests, if valid at the domicil of the testator, are valid here. Dammert v. Osborn, (1893) 140 N. Y. 30, 35 N. E. 407, reversing judgment 65 Hun 585, 20 N. Y. S. 474; Despard v. Churchill, (1873) 53 N. Y. 192; Chamberlain v. Chamberlain, (1871) 43 N. Y. 424; Cross v. United States Trust Co., (1890) 25 Abb. N. Cas. 166, 10 N. Y. S. 781, 33 N. Y.
St. Rep. 149. See also Bascom v. Albertson, (1866) 34 N. Y. 584; In re Van Kleeck, (1916) 95 Misc. 40, 158 N. Y. S. 539; Robb v. Washington, etc., College, (1905) 103 App. Div. 327, 93 N. Y. S. 92.
Bequest to nonexistent corporation.— A bequest may be limited to a corporation not in existence at the time of the death of the testator, provided it is created within the time allowed for vesting of future estates. Tilden v. Green, (1891) 130 N. Y. 29, 28 N. E. 880, 27 A. S. R. 487, 14 L. R. A. 33, affirming 54 Hun 231, 7 N. Y. S. 382; Southampton Hospital Ass'n v. Fordham (1911) 72 Misc. 247, 131 N. Y. S. 91; Jessup v. Pringle Memorial Home, (1899) 27 Misc. 427, 59 N. Y. S. 207, affirmed 47 App. Div. 622, 62 N. Y. S. 308.
Appointments of future estates under power.- The time of the suspension of the power of alienation, where appointments of future estates have been made under a power, which are claimed to be invalid for remoteness, is to be measured from the death of the testator, or in the case of deeds, from the time of the conveyance. Hillen v. Iselin, (1889) 144 N. Y. 365, 39 N. E. 368, affirming 67 Hun 444, 22 N. Y. S. 282. See also Genet v. Hunt, (1889) 113 N. Y. 158, 21 N. E. 91; Cheever v. Cheever, (1916) 172 App. Div. 353, 157 N. Y. .S. 428.
Illustrative cases of illegal suspension.- It has been held that a testamentary direction that upon the death of a life tenant the executors hold the property in trust with the power to collect the rents, issues and profits, and after the payment of taxes, charges and specified annuities invest the surplus in real estate, and that the estate shall not be settled for a period of five years after the death of the life tenant, final settlement to be made as soon thereafter as in the opinion of the executors will be for the best interests of the estate, is void as contravening the statute against perpetuities, since the indefinite period named for the continuance of the trust may exceed two lives in being. Kalish v. Kalish, (1901) 166 N. Y. 368, 59 N. E. 917, affirm. ing 45 App. Div. 528, 61 N. Y. S. 448.
In Shipman v. Rollins, (1885) 98 N. Y. 311, it appeared that a will directed the executors to invest $9,000 on bond and mortgage, $200 of the interest received thereon to be paid annually to E, and $200 to L during life. The surplus of interest the testator was to give to a charitable association named, unless his sister should become a widow, in which event the surplus thereafter should go to the sister for life. After the death of said three legatees the testator directed the principal to be paid to the said association. It was held that the bequest of the principal was void, as there was an illegal suspension of the power of alienation.
In Simpson v. Trust Co. of America, (1908) 129 App. Div. 200, 113 N. Y. S. 370, affirmed (1910) 197 N. Y. 586, 91 N. E. 1120, it appeared that a testator placed one-third of his estate in trust for the benefit of his wife for life, at her death the portion so set apart to be added in equal proportions to the shares of his surviving brothers and sister, and directed that the remaining two-thirds of the estate should be divided into a number of parts equal to the number of his brothers and sister surviving or dead leaving issue, the portions of the surviving brothers and sister to be held in trust to pay the income to them for life and at the death of either brother or sister his or her part to be added to the share of the survivors or survivor of them in equal portions, and on the death of the last survivor the whole principal to be paid to a nephew and niece named. It was held that the testator made an unlawful suspension of the absolute ownership of one-sixth of the estate, for, as to one-sixth, three lives, to wit, that of the widow, the brother and the sister, must intervene before the principal could be paid to the remaindermen.
In Whitefield v. Crissman, (1909) 123 App. Div. 233, 108 N. Y. S. 110, it appeared that a will gave all the testator's property to his wife and sister, in trust for the benefit of his four children “ the income and such portion
of the principal as may be necessary for their maintenance to be used until all shall have reached their majority, when, after deducting the percentage legally allowed to my wife, Mary L. Whitefield, the residue or balance is to be divided share and share alike among the aforementioned children, Letitia, Mary, Martha, and George 3d. In the event of the death of any of said children without issue, said share to be divided pro rata among those remaining. ... I hereby authorize and empower my trustees hereinafter named to sell and dispose of any of my property, real and personal or mixed, in their discretion, and to exécute all necessary papers to consummate such sale or disposition.” It was held that the absolute ownership of the testator's personal property as well as the alienation of the real property was suspended during the minority of the four children; the will, therefore, violated the statute in relation to the creation of estates and the disposition of personal property, and was void.
In Colton v. Fox, (1876) 67 N. Y. 348, it appeared that the will of a testator, after various specific legacies and devises, gave the residue of his estate, real and personal, to his executors in trust to pay the income and profits to his two brothers and two sisters, in equal proportion, during their joint lives, and, after their “several deaths,” to divide the estate equally among their children. The will then provided: “In case either of my said brothers or sisters shall die, leaving the others surviving, then the income herein intended for the one or the other so dying shall be paid to the issue or the representative of the one or the other so dying.” It was held that the design of the testator was that the corpus of the estate should remain undivided in the hands of the executors until the decease of all of the brothers and sisters named; that the interests of the children of the respective brothers and sisters did not vest in them at the death of the testator, but was future and contingent upon their surviving the parent, and that the provision was in contravention of the statute against perpetuities and therefore void. This case was cited and followed in Almstaedt v. Bendick, (1900) 47 App. Div. 265, 61 N. Y. S. 1019, construing a will with similiar provisions.
2. Real Property Rules Designation of estates in personalty in terms of real property.- Since the present section of the statute subjects limitations of future interests in personalty to the rules prescribed in relation to future estates in real property, it is proper to speak of interests in personalty in the terms of the law of real property and to designate life interests in personalty as estates for life” and absolute interests in personalty as “ estates in fee” fees simple absolute.” In re Kingsley, (1914) 145 N. Y. S. 662.
Real property rules as applicable to personal property.- Under the last provision of this section the courts have gradually assimilated most of the rules governing the incidents of future estates in real property to those applicable to future interests in personal property. National Park Bank v. Billings, (1911) 144 App. Div. 536, 129 N. Y. S. 846, affirmed (1911) 203 N. Y. 556, 96 N. E. 1122. Thus it has been held that the same rules apply to the bequest of a power affecting personal property as to one affecting real property. Hill v. Fiske, (1910) 69 Misc. 507, 125 N. Y. S. 1026; In re Perkins, (1910) 68 Misc. 255, 124 N. Y. S. 998. “ Vested ” and “ contingent future estates in personal property have been given the same definition as like estates in real property. Vanderpoel v. Burke, (1909) 63 Misc. 545, 118 N. Y. S. 548; In re Ryder, (1904) 43 Misc. 476, 89 N. Y. S. 460. The word “heirs ” has been denied any more substitutionary force than it has in devises of estates in land, which gives the word the meaning of “ next of kin.” Steinway v. Steinway, (1900) 163 N. Y. 183, 57 N. E. 312, affirming 24 App. Div. 104,