[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 149 The single question considered and decided by the learned Appellate Division is, does this will create a trust measured by two lives in being at the time of the death of the testator, or is it dependent upon four lives, as insisted by the appellant? The validity of the trust was upheld, and we should affirm the judgment on the opinion below, were it not for the fact that a very important feature of this case was not fully considered.
The scheme of this will is exceedingly simple. The testator, after directing the payment of his debts, gives his entire estate, real and personal, to his executors to carry out the following trust: To pay his wife $500 a year during life in lieu of dower; to pay his sister Rebecca Cooper $400 a year during life; to pay the remainder of the income, one-half to his daughter Sarah Jane Little, and the other half to his daughter Mary E. Cooper during their lives.
If either of the daughters died without leaving lawful issue during the life of the other, the survivor took the deceased sister's share. If either died during the life of the other, leaving lawful issue, the issue took. At the death of the two daughters named he gives the trust property absolutely to their children, one-half to the children of each, per stirpes, and not per capita.
There are other provisions as to the remainder not material to the question now before us.
The duration of the trust is clearly dependent upon the lives of the two daughters, and there is no other suggestion on the face of the will. We, therefore, agree with the court below, that the testator created a valid trust.
The principal argument urged against this construction of the will by the appellant was, that the lives of the daughters might fall in, thus terminating the trust long before the death *Page 152 of either the wife or the sister, who are entitled to annuities during their natural lives, and that it was quite impossible that the testator should have contemplated that there might be a very considerable time when his wife and sister would be cut off from any income under the will.
The opinion below intimates that the testator selected the lives of his children, who, in the ordinary course of events, would be presumed to live longer than the annuitants, and if this expectation was not realized, it was one of the risks that the testator assumed when he created such a trust.
We are of the opinion that the termination of the trust while the annuitants, or either of them, survived would not result in cutting off the annuities. It is clearly the intention of the testator, on the face of the will, that the annuities during the lives of his wife and sister, respectively, should be a charge upon his residuary estate, whether held by the executors in trust or freed from that limitation by the falling in of the selected lives.
This lien upon the estate, consisting of real and personal property, could not be effectually enforced by the annuitants if the estate were distributed to the remaindermen under the provisions of the will, especially if there should be a failure of grandchildren and the residue passed to the heirs at law and next of kin.
It would, therefore, be necessary to ascertain the present value of the annuities at the termination of the trust and pay the amount over to each annuitant respectively, and distribute the residue of the estate to the remaindermen, discharged of any lien. In this manner the entire will of the testator is carried out, and those who stood quite as near to him as the life tenants and remaindermen are protected from a result that never could have been contemplated when the will was framed.
The judgment appealed from must be modified so as to conform to these views, and as so modified affirmed, with costs to all the parties to be paid out of the estate.
All concur.
Judgment accordingly. *Page 153