Matter of Colegrove

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The principal trust provisions of this will can be upheld, discarding such as are illegal. The rule is quite well settled that an ulterior limitation, though invalid, will not be allowed to invalidate the primary dispositions of the will, but will be cut off in the case of a trust which is not an entirety. (Tiers v. Tiers, 98 N.Y. 568, 573; Kalish v. Kalish, 166 N.Y. 368,375; Hascall v. King, 162 N.Y. 134, 152.)

The testator intended three separate and distinct trusts of five thousand dollars each for his three grandchildren. The fact that the trusts were to be kept in one fund does not necessarily create one trust. (Leach v. Godwin, 198 N.Y. 35.) The direction to pay over five thousand dollars to the grandchild becoming twenty-one years of age suggests separate trusts.

Reading this will as applicable to separate trusts of five thousand dollars for each grandchild, it directs the income to be paid to the grandchild until he becomes twenty-one years of age, when he is to receive the principal. In the event of the beneficiary's death before attaining twenty-one leaving issue, then the principal is given to the issue absolutely.

Up to this point the trusts can be sustained. The latter part of the fourth paragraph, however, contains limitations which cannot be upheld. It directs that if any of said beneficiaries die before the age of twenty-one years without issue, then the trustee shall apply the income and profits thereof to the use of the survivor or survivors of said beneficiaries until said survivor or survivors shall attain majority, when the trustee shall dispose of the trust fund, in whole or in equal shares as the case may be, in accordance with the third paragraph of the will.

These clauses taken in connection with other parts of the will indicate an intention upon the part of the testator to keep the trust fund, in the event stated, tied up until the youngest of the three grandchildren arrives at twenty-one. This, of course, is in violation of section 11 of the Personal Property Law (Cons. Laws, ch. 41), as rendering it possible to suspend the absolute power of alienation for longer than two lives in being.

Eliminating from the will this illegal portion, there remains for each of the grandchildren a trust fund of five thousand dollars, the income from which is to be paid until the beneficiary arrives at twenty-one when the principal sum is to be turned over to him absolutely and forever. Upon the death of the beneficiary before twenty-one leaving issue, then said principal sum is given to the issue absolutely. Should the beneficiary die under twenty-one and without issue, the trust ends and the principal sum falls into the residuary estate under the sixth paragraph of the will. The sixth paragraph is a general residuary clause carrying everything not otherwise disposed of. (Leggett v.Stevens, 185 N.Y. 70.)

The order of the Appellate Division and the decree of the surrogate should be reversed and the matter remitted to the Surrogate's Court for decree in accordance with this opinion, with one bill of costs to the executor and special guardian in this court and in the Appellate Division, payable out of the estate.

HISCOCK, Ch. J., CHASE, COLLIN, HOGAN, CARDOZO and McLAUGHLIN, JJ., concur.

Order reversed, etc.