Williams v. Montgomery , 81 N.Y. Sup. Ct. 425 ( 1893 )

PER CURIAM.

We are content with the position taken in this case on the appeal from the order denying plaintiff’s motion for an injunction pendente lite. 68 Hun, 416, 22 N. Y. Supp. 1033. Further reflection induces us to emphasize the assertion then made, that if the agreement was intended to restrain the disposition of the stock for a period of six months from its date it was in violation of the statute relating to accumulations of personal property and expectant estates in such property. The statute reads:

“The absolute ownership of personal property shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance and until the termination of not more than two lives in being at the date of the instrument containing such limitation or condition; or if the instrument be a will for not more than two lives in being at the death of the testator.” 1 Rev. St. p. 773, § 1.

Justice Allen, speaking for the court in Converse v. Kellogg, 7 Barb. 597, had under consideration the meaning which should be given to the word “absolute,” which had prior to that time been introduced into the statute. He said that “the word ‘absolute’ was doubtless used as the opposite of ‘conditional,’ and in the same sense as ‘perfect.’ It signifies ‘without any condition or incumbrance.’ ” This construes the statute as if it read: “The unconditional and unincumbered ownership of personal property shall not be suspended by any limitation or condition whatever.” And clearly a contract which provides that certain shares of stock shall not be sold, but shall be delivered to and held by a third party for a given period, is condemned by that statute, unless the period of suspension is measured by two lives. Vice Chancellor Hoffman, in Butler v. Butler, Hoff. Ch; 347, remarked: “The rule is inflexibly established that there can he no limitation of personal estate by which the power of entire alienation shall be suspended for a longer period than the continuance of two lives,”—an interpretation of the statute which accords with the views of Justice Allen, already alluded to, and.has been followed in many subsequent cases, including Manice v. Manice, 43 N. Y. 303, and nowhere, so far as we have observed, criticised. It commands the determination that an agreement which prohibits the sale and transfer of personal property for a period other than provided by the statute is condemned by it, and therefore invalid. Instances in which efforts to outwit the statute have been brought to the attention of the courts have generally arisen under wills, but the statute applies alike to wills and other, written instruments. It follows that the authorities, in so far as they discuss what accords with and what violates the provision of the statute providing how the term of suspension shall be assured, are alike applicable to both wills and contracts. A few instances of unsuccessful efforts to avoid the rigor of the statute may be cited. In Cruikshank v. Home for the Friendless, 113 N. Y. 337, 21 N. E. 64, and People v. Simonson, 126 N. Y. 299, 27 N. E. 380, the trusts were to continue until the legislature should authorize by appropriate enactment an incorporation such as testator desired should receive the estate; in Garvey v. McDevitt, 72 N. Y. 556, the duration of the trust was sought to be limited to a period of four years immediately after testator’s death; in Killam v. Allen, 52 Barb. 605, until the payment and extinction of certain mortgages; in Moore v. Moore, 47 Barb. 257, until the reformation of a person, not exceeding three years. Other cases might be cited, but need not be, for with one accord they declare the statute violated whenever a suspension of the power of entire alienation of personal property is attempted for any other term or period whatever than that authorized by statute. The judgment should be affirmed, with costs.