Brace M. Gallien left a will disposing of an estate of the value of from $150,000 to $200,000. He was survived by his wife and by a son of unsound mind. The son had been cared for by one Mabel Crans, who is described as a foster daughter, but who was never adopted. She survived the testator only four days. By the will, which was written on a printed form, the whole estate, after payment of debts, is given to a trustee in trust "from the income thereof to pay monthly to our foster daughter, Mabel Crans, so long as she may live, the sum of fifty dollars ($50) per month for her personal use. The balance of the income of my estate is to be paid to my wife Ida L. Gallien as she may desire it. If my said wife, should be survived by our son Brace Goodwin Gallien, then the said balance of income or so much thereof as may be necessary is to be expended for his proper support and maintenance." Immediately *Page 199 after this gift there is one of interests in remainder: "When the above payments shall cease by reason of the deaths of the beneficiaries mentioned, I direct my said trustee to pay the following bequests in the order mentioned dividing the residue of my estate into six equal parts." One-sixth is given to a brother; one-sixth to another brother; one-sixth in trust for a sister; the residue to a church and to Wesleyan University. The surrogate held that the trusts for the wife, the son and the foster daughter suspend the power of alienation and the absolute ownership for more than two lives in being at the death of the testator and that the entire will is void. In his view, the whole estate must have been kept within the trust if Mabel Crans had survived the other beneficiaries, though the income to be paid to her would be only $50 a month ($600 a year) out of a yearly income of $10,000 or more. The preservation of an idle trust might be incongruous with reason. Even so, the incongruity was unavoidable in view of the language of the will. The Appellate Division affirmed by a divided court.
"When the above payments shall cease by reason of the deaths of the beneficiaries mentioned," what is undisposed of shall be divided. The question is whether division is to be made when the payments severally cease and the deaths severally occur, or is to be postponed until all the deaths shall have occurred and all the payments shall have ceased. We reach the first of these results if we hold that the word "when" at the beginning of of the sentence may fairly be interpreted as equivalent to "as." Equivalent they often are (Murray, Oxford Dictionary, s.v. As, subd. III, 16; s.v. When, subd. II, c). The will in that view is to be construed as if it read: "As the above payments shall cease (or shall severally cease) by reason of the deaths of the beneficiaries mentioned," what is undisposed of shall be divided. Such a reading has support in the evidences of intention furnished by the will itself as well as in settled principles *Page 200 of testamentary construction. One of the best known of those principles is that if two or more constructions are reasonably possible, the one that will sustain the validity of the will is to be preferred, generally speaking, to the one that will defeat it (Roe v. Vingut, 117 N.Y. 204, 212; Phillips v. Davies,92 N.Y. 199; Greene v. Greene, 125 N.Y. 506, 512). The court struggles to preserve, and surrenders to nothing short of obvious compulsion. In the attainment of its end, it may "reject words and limitations, supply them or transpose them, to get at the correct meaning" (Phillips v. Davies, supra; cf. Roome v.Phillips, 24 N.Y. 463; Miller v. Gilbert, 144 N.Y. 68, 74). There are internal evidences of intention here to reinforce these general precepts. The will does not say that division is to be postponed until the entire trust shall terminate. It says that when there is cessation of "payments," there shall also be division. Certainly some payments will cease upon the death of wife and son. If the trust is to exist thereafter, it will cease to be bounded by the time when the income or any substantial part of it can continue to be paid in accordance with the trust provisions. "We are not to gather, from the language of the will, the absurd and destructive intention to continue a trust beyond the limit implied by its own nature and inherent character, unless compelled to do it by language which will admit of no other interpretation" (Crooke v. County of Kings, 97 N.Y. 421,438; cf. Locke v. F.L. T. Co., 140 N.Y. 135, 147). More significant, however, than any argument that has its roots in verbal criticism is the argument that is drawn from a survey of the consequences to be promoted or averted. By reading "as" for "when," or construing the cessation of payments as several or distributive rather than general or collective, we not only save the validity of the trust or at least the greater part of it. We cut an avenue of escape from consequences so unreasonable, we might even say so ludicrous, that a *Page 201 sensible testator cannot be supposed to have intended or approved them. The wife and the son were the chief objects of solicitude. The care of them was the primary purpose of the trust. The trifling provision for the "foster daughter" was an incident and nothing more. To tie up the whole estate in a continuing trust after the death of wife and son in order to make these petty payments, is a result so extraordinary, even if it were lawful, that only words inexorably clear should drive us to accept it. Acceptance will be the more reluctant when one of the consequences accompanying it is to make the will unlawful.
We hold, accordingly, that "when" in the sentence defining the time of distribution is equivalent to "as." If the will were so phrased, it would be the duty of the trustee, upon the death of wife and son with the foster daughter living, to retain within the trust an amount adequate to make provision for the monthly payments of fifty dollars, and to make division of the residue. A severance of the trust to that extent would then be an implied command (Matter of Horner, 237 N.Y. 489; Matter of Trevor,239 N.Y. 6; Locke v. F.L. T. Co., 140 N.Y. 135, 149;Hopkins v. Kent, 145 N.Y. 363). A like duty exists under the will as it is written. We do not say that such a severance will save the trust in its entirety. It must fail even then as to the share directed to be retained for the use of Mabel Crans, since there are possible contingencies in which three lives might have to elapse before the trust as to that share would end. If the foster daughter were to die before the wife, the income thus released would become an accretion to the income payable to the wife, and in the event of her death might be added to the income of the son. This would transgress the statutory limit. On the other hand, the trust for wife and son must terminate in any event at the end of two lives, since their shares are to be severed and distributed in fee if the daughter shall survive them. *Page 202
We see no difficulty in determining the proportion of the estate to be set apart as sufficient to yield the monthly payments (Bradhurst v. Field, 135 N.Y. 564). A different question would be here if the testator could be supposed to have intended that the payments should have the security of a trust enveloping the whole estate regardless of its size. Such was the situation, e.g., in Cochrane v. Schell (140 N.Y. 516, 535). Here the direction to divide the principal when payments to the beneficiaries shall cease is equivalent to a direction to make whatever severance is necessary. Nor is there substantial ground for the belief that the failure of the trust for Mabel Crans will so mutilate the will in the essence of its plan as to make it better to drag down to destruction at the same time the trust for wife and son. Mabel Crans would not take anything if the will were rejected altogether. She was not an heir or next of kin. We have no such problem here as arises at times where the failure of a separable trust will involve an unintended discrimination between children or other relatives who would take equally or proportionately if there were to be intestate succession (Benedict v. Webb, 98 N.Y. 460, 466). Nothing is done here save what we may safely presume that the testator would have wished the court to do in the presence of such an emergency if he had been able to foresee its happening (Kennedy v. Hoy,105 N.Y. 134).
We are told that the will, if read as directing a division when payments severally cease, would fail even then to express the wish of the testator. The argument is made that immediate division of the principal would be necessary in that event if the wife died before the son. No such result would follow. The income would then be carried over to the survivor by the express mandate of the will. Not till the death of the survivor would the time arrive when the payments to the beneficiaries as directed by the testator could be said to have ceased as *Page 203 to any portion of the trust estate. Subtle refinements are unnecessary to give support to that construction. What is needed is nothing more unusual than a common sense appraisal of probabilities and meanings.
We hold that the trust for the foster daughter fails, that as to the capital reasonably necessary to produce the income payable to her, distribution is to be made upon the basis of intestacy, and that the trust is valid as to the residue.
Questions may arise hereafter in respect of the validity of some or all of the gifts to take effect as remainders when the trust is at an end. None of these questions was considered by the courts below. We leave them open now, to be dealt with hereafter by the surrogate or the Supreme Court if it shall be found expedient to answer them (Matter of Farmers' Loan Trust Co.,226 N.Y. 691).
The order of the Appellate Division should be reversed, and the proceeding remitted to the Surrogate's Court for the entry of a decree construing the will in accordance with this opinion, costs to be allowed to all parties appearing and filing briefs in this court, payable out of the estate.