Butler v. Butler , 3 Barb. Ch. 304 ( 1848 )

The Chancellor.

The fair construction of the fourth codicil is, that the testator referred, therein, to the eldest child of the complainant at the time of making such codicil, as the one upon whose arrival at the age of twenty-one, the complainant’s estate or income in the profits of that fourth of the testator’s property should terminate; and not the eldest child which she might have who should attain the age' of twenty-one. For in the last case the power of alienation might he suspended for more than two lives in being at the death of the testa tor, before the contingency would happen by which the estate in remainder would vest in interest. And in the construction of wills, if the language of the testator is such that it may be construed in two different senses, one of which would render the disposition made of his property illegal and. void, and the other would render it valid, the court should give that construction to his language which will make the disposition of his property effectual.^(a) In this case, therefore, the fourth codicil shoúld be construed as if the testator had directed the trustee to pay the income of the fund to the complainant until her .oldest child then in existence, or who should be in existence at his death, should arrive at the age df twenty-one years, or until the time when such child would arrive at the age of twenty-one years, if sjie lived to attain her majority; and in case such eldest child lived to attain her majority, then that this one-fourth of the estate should be divided into as many shares as there were children of the complainant then living, and that one shave should belong to each, payable when they respectively arrived at the age of twenty-one; the income in the meantime to be accumulated for the benefit of such of them as were minors. This would give to each child living when the oldest; in existence at the death of the testator, arrived at the age of twenty-one, an absolute interest in his or her share; and would be perfectly consistent with the language which the testator has actually used in his will.

It is true the remainder to the children is a contingent remainder, and is limited on a term of years. For the estate of the mother in the income of. the fund, which is to endure until the time when her eldest child Eliza Butler will attain the age of twenty-one, if she lives so long, is an estate in the fund for a term of years ; that is, for the term of twelve yeare, or a little less, from the death of the testator. But a contingent remain tier may be limited upon, a term of years, provided the nature of the cotuingencyon which it is limited is such that the remainder must vest in interest, if ever, during the continuance of not more than two lives in being at the lim° of the creation of such remainder, or at the termination of not more than two lives thus in being. (1 R. S. 724, § 20.) Here the contingent remainder is so limited that it must vest in interest, if ever, during the continuance of one life in being at the death of the testator; which, in a will, is to be deemed the time of the creation of the estate. For the contingent remainder, to the eldest, child of Mrs. Butler at the death of the testator, and to the other children who are to share in the ultimate remainder in fee of this fourth of the testator’s estate upon the happening of the contingency contemplated by him in his will, is so limited that it must take effect, if ever, during the continuance of the life of such eldest child. The absolute ownership of the fund, therefore, could not be suspended by this contingent limitation, beyond the continuance of two lives in being at the death of the testator. For, if the giving of the rents and profits to the complainant until her eldest child should attain the age of twenty-one years, would have the effect to suspend the absolute ownership of the property beyond her own life and the life of the eldest child, in case such eldest child died before arriving at the age of twenty-one years, the limitation to the complainant, instead of the contingent limitation to her children, would be the void limitation.

It is understood that Eliza, the eldest child of the complainant who was in esse at the death of the testator, actually lived to attain the age of twenty-one years in May, 1846. If so, the contingency contemplated by the testator then occurred; and the children of the complainant who were then living became the absolute owners of the whole of the fund in controversy, upon the happening of that event. It is therefore unnecessary to inquire who would have been entitled if Eliza Butler had died under the age of twenty-one. It is sufficient to say, none of the respondents in this case had any interest in that question when the bill in this cause was filed. Nor were the proper parties before the court to authorize a decree giving a construction of the will in reference to such a contingency.

There was, therefore, no error in the decree of the vice chan cellar; and it must be affirmed, with costs.

(a) Mason v. Jones, 2 Barb. Sup. Court Rep. 244.