[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 325 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 327 The primary intent of the testator, as indicated by his will, was to give the income of his estate to his wife and children during their lives respectively, and the corpus to the issue of his children. The existence of this intent furnishes the only adequate explanation of the motive of the testator in creating the trust estate in his executor, and the power conferred and the duties enjoined upon the trustees, have especial and consistent relation to this general scheme for the distribution of his estate. The question is whether this plain purpose of the testator has been accomplished.
The testator directs the trustees to convert his real and personal estate into money, and to invest the proceeds in certain specified securities, and in the sixth and seventh clauses of his *Page 329 will provides that one-third of the interest from this consolidated fund shall be paid annually or semi-annually, as the case may be, to his wife during her life, and that the remaining two-thirds shall be equally divided among his children, share and share alike, and that on the death of his wife, the interest on the one-third of his estate given to her for life, shall be divided among his children, as provided in respect to "the remaining two-thirds of said income."
The ninth clause contains the only disposition of the principal of the fund contained in the will, with the exception of the contingent limitation in the tenth clause, which will be referred to hereafter, and a provision in the eighth clause, that upon the death of either of his children without issue before the decease of his wife, "the share or proportion of my estate and the interest and income to which such child would be entitled, shall revert to my estate and be divided and distributed as hereinbefore (hereinafter) provided." The ninth clause is as follows: "In case of the death of either of my children, leaving issue, after the decease of my wife Caroline B., the share or proportion of my estate and the income and interest thereof, to which such child shall then be entitled, shall be paid to such issue or the next of kin of such deceased child." The wife of the testator died subsequent to his death. The seven children of the testator are still living, some of whom are married and have issue, born since his death. It is claimed on behalf of the children that the trust terminated on the death of the testator's wife, and that by the true construction of the will, a fee in the corpus of the estate was given to the children to vest in possession on the death of the mother. This claim cannot be sustained without subverting the plain intent of the testator. The duration of the trust was not limited to the life of the testator's wife. This is apparent from several considerations. The provision in the sixth clause that on the death of the wife the one-third of the income given to her for life shall be divided among the children, as provided in respect to the two-thirds given to them, manifestly implies that the trust *Page 330 is to continue for the purpose of receiving and dividing income which may thereafter accrue. The ninth clause directs the payment over to the issue of any child dying after the death of the wife, of the share of the child so dying, a provision wholly inconsistent with the idea that the trust terminated on the death of the wife. The direction was necessarily a direction to the executors and trustees to whom the fund had been given, and implies that it was to remain in their hands after the death of the wife, for the purposes of the will. The tenth clause confirms this construction. This clause authorizes the executors, whenever either of his sons shall have accumulated "an amount of property equal to the amount of principal held in trust for them respectively, from which they receive annual or semi-annual interest, and have good habits and business qualifications, so that in the opinion of my executors they would not be likely to waste the principal, to pay over such principal to the son so entitled thereto," and the testator adds, "and I hereby give and bequeath to such son, such principal sum to be paid to him." This authority is to be exercised whenever the principal condition is fulfilled, which may occur either before or after the death of the wife.
The claim that the corpus of the property was given to the children, is founded in part upon a criticism of the language of the testator in the ninth and other clauses of his will. For example, in the ninth clause he speaks of the "share and proportion of his estate, and the interest, etc., to which such child" is entitled. The language is inexact and inappropriate upon the construction that the children take no share of the principal, but as the context shows, it was made to define the proportion of the corpus to which their issue would be entitled on the death of the parent. In the tenth clause, which, in a certain contingency, gives to his sons a share of the principal, it is referred to as the share "from which they receive annual or semi-annual interest," showing that the original gift to the sons comprehended the income only. The counsel for the appellants, to support their contention that there is a gift of the corpus *Page 331 to the children, refer to the doctrine that a general gift of the income of a fund, is a gift of the fund itself. (Haig v.Swiney, 1 Sim. Stu. 488; Patterson v. Ellis, 11 Wend. 260.) But this doctrine does not apply in this case, for the reason that there is no general gift of the income to the testator's children. It is true that the gift of the income to the children is not in express terms limited to their lives, but this is the necessary construction from the gift over of the principal sum on their death. The direction to divide the income among the children, and to pay over the principal to their issue on their death, is equivalent to a bequest of the income, to the children for life, and of the principal to their issue. (Gilman v. Reddington, 24 N.Y. 10; Manice v. Manice, 43 id. 378.) It is to be observed also, that in the tenth clause, providing for a contingent limitation of the fee to the sons, the testator uses terms of express gift, and does not leave his intention to inference. That the testator's general intention was to give the income only to his children and the principal to his grandchildren, is plain and unmistakable. The substituted gift in the tenth clause is not inconsistent with the general purpose. He may reasonably have supposed that if his sons demonstrated their ability to accumulate property, and were of good habits, his estate, given to them in that contingency, would be preserved for, and ultimately be applied for the benefit of their issue.
The argument that the construction that the children took life estates only, disinherits the heirs of the testator, and that courts lean against such a construction of a will, is only relevant when the intent is doubtful. But a limitation by a parent of his estate to his children for life, remainder to their issue, is in no just sense a disinheritance of his heirs.
The only question remaining respects the validity of the trust under the statute against perpetuities. Upon the doctrine of equitable conversion, the trust in this case was a trust of personal property. (Kane v. Gott, 24 Wend. 659.) The absolute ownership of personal property cannot be suspended by *Page 332 any limitation in a will, for more than two designated lives in being at the death of the testator. (2 R.S. 773, § 1; Hawley v.James, 16 Wend. 61.) Such ownership may be suspended during the continuance of a lawful trust, and if the trust in question is so constituted that by its terms or necessary construction, it will not, or may not terminate within the period of two designated lives after the death of the testator, it is void.
It is evident that the trust was to continue so long as was necessary to pay the income to the beneficiaries for life. The wife, on the testator's death, was entitled to the income of one-third of the estate for her life. The contingency was possible that she might outlive all of the children. In that possible, though improbable event, it would be necessary that the trust term should continue as to the one-third part of the fund, to enable the trustees to fulfill the trust in her favor. But upon her death the trust would expire, because the purpose of the trust would then have been accomplished. The part of the estate then in the hands of the trustees would go either to the issue of the children, or to the next of kin of the testator, depending upon the construction of the ninth clause. If that clause is construed as a limitation to the issue of children only who should die after the death of the wife, the fund would be undisposed of and would be distributed as in case of intestacy. But as the wife died before the children, it is unnecessary to consider this question. It is material only to observe that in the case of the widow surviving all the children, the ownership of the one-third of the fund would be suspended by the trust during her life only, which would be a valid limitation. In the event which has happened, the whole fund is held in trust to receive and pay the income to the children. It is claimed by the counsel for the children that, assuming (as we have held) that the trust did not terminate on the death of the wife, then by the true construction of the will, the trustees are to hold the fund given to them in trust, as an entirety during the lives of the seven children. This would plainly transcend the limitation of the statute. But this is not the true construction of the will. The estate, as was said in Savage v. Burnham *Page 333 (17 N.Y. 571), is consolidated under one trust, but it is a trust for distribution and payment to each beneficiary, or class of beneficiaries, upon the events specified in the will. The income not only is given to the children in shares, but by the ninth clause, the share out of which the income of each child comes, is given immediately on his death to his issue. The testator plainly contemplated a segregation of each share from the general mass upon the death of any child leaving issue, and a payment over of such share to such issue. Each share in turn will be liberated from the trust upon the death of the parent leaving issue, and the trust as to each share will thus terminate. The utmost period of suspension of the ownership of any part of the estate, will be the lives of the widow and of one child, a period within the statute. The interests carved out of the trust are separable and distinct, and the will is to be construed as though in terms it had created a separate trust for each child and the issue of each child, in one undivided seventh part of the estate. (Savage v.Burnham, 17 N.Y. 571; Everitt v. Everitt; 29 id. 39;Stevenson v. Lesley, 70 id. 512; Monarque v. Monarque, 80 id. 320.)
The testator has not provided for the devolution of the share of a child, dying without issue, after the death of the wife. We concur in the opinion of the court below that such share, upon the death of a child so dying, goes to the next of kin of the testator. It is unnecessary to determine whether the ulterior limitation in the eighth clause, in the event of the death of a child without issue before the death of the wife, can be sustained. The death of the wife, the children surviving, renders that question unimportant.
For the reasons stated we think the judgment is right, and it should, therefore, be affirmed.
All concur.
Judgment affirmed. *Page 334