Bird v. Pickford , 71 Hun 142 ( 1893 )

BARNARD, P. J.

The residuary clauses contained in the will and codicil of William Baltz, deceased, are as follows:

“Thirdly. I give and devise all the rest o£ my estate, real and personal, to my executors hereinafter named, in trust, nevertheless, to invest and keep, the same invested, and divide the net income aiising therefrom equally among my said daughter-in-law, Ophelia Baltz, and my said cousins, Rachel and Addie Van Gilder, the survivors or survivor of them, during their natural lives. Fourthly. If my said cousins, Rachel and Addie Van Gilder, should die before my said daughter-in-law, Ophelia Baltz, then and in that event I give and devise the corpus of said trust estate to the said Ophelia, her heirs and assigns, forever. But if my said daughter-in-law, Ophelia Baltz, should die before my said cousins, Rachel and Addie Van Gilder, then, and in that event I give and devise the corpus of said trust estate to such person or persons as my daughter-in-law,Ophelia Baltz, may designate in her last will and testament”

The three persons named in these clauses all survived the testator, and the question presented is whether there is an illegal suspension of the power of alienation, created by these clauses. It seems clear that the absolute power of alienation may be suspended for more than two lives in being at the death of testator.. If Ophelia Baltz die first, and leave no will, the estate would still continue in trust during the lives of Rachel C. Van Gilder and her sister, Addie E. Van Gilder. The only escape from this conclusion is to hold that if Ophelia die first, and without exercising the power of appointment, the interest of the Van Gilder sisters ceases, and the estate at once, upon Ophelia’s death, goes to the testator’s heirs at law, as in case of intestacy. This would defeat the purpose of the will, which was to give the income of the trust fund to the three legatees, or survivor of them, during their natural lives. It was not within the purpose of the testator to divide the-estate when Ophelia died,, whether she made a will disposing of the body of the trust fund or not. A valid trust must be so drawn that, in every possible contingency, it will absolutely terminate within the prescribed period of two lives. Schettler v. Smith, 41 N. Y. 328; Haynes v. Sherman, 117 N. Y. 433, 22 N. E. Rep. 938. If the scheme of the will in question is carried out, there may be an illegal suspension, if Ophelia die first, and leave a will. The income would go to the Van Gilder sisters and to the survivor during their lives, and it would be only after the-death of last of the three lives the property could be divided. The trustees would hold the fund until the last of the three lives had passed away. The judgment should be reversed, and judgment ordered that the clauses in question create an illegal suspension, and that the fund go to the next of kin and heirs at law, as-in cases of intestacy. All concur.