■ I think the judgment rendered below is right and should be affirmed, without modification.
Whether the trust deed and the will be construed as one instrument or not, there is no violation of the statute as to one-third of the 1,000 shares of Standard Oil stock placed in trust by the deed for the daughter Nellie during her life. By the will the residue of the testator’s estate is divided into three separate parts and one part is given to the wife for life and on her death to Nellie for life, then to the latter’s issue or next of kin. Nellie having died without issue, the stock placed in trust for her, by the terms of the deed passed to the testator’s estate and swelled the residue. As to the one-third thus carved out for the wife and Nellie for the life of each no more than two lives are involved. The fact that Nellie was given a life estate by the deed, and another by the will after the wife should die, did. not constitute a provision for a third life. Nellie hád only one life, and it is of no moment how many instruments she is mentioned in as taking a life estate in the same property, for she could take but one any way. Even'if the deed and will be construed together only the two lives of the wife and Nellie are involved in the first one-third part disposed of by the' 1st subdivision of the 4th paragraph of the will. Nellie having died without issue her next of kin, therefore, on the death of the wife will take under the will of the testator, and not because of her own intestacy. I see no possible reason for saying that there is not a valid disposition under the will of this one-third part, and it should be held by the executors and trustees and finally distributed as thé will provides.
As to the other two-thirds there is more room for question, but T. am of the opinion that the will should be read alone and that the trust deed should not be grafted upon it. The court below did not find, and from any facts disclosed could not have found as a fact, that the deed and will were executed in pursuance of one general scheme to evade the statute and to tie up personal property for moro' *270than two lives in being. The. will was executed in 1890 and the deed in 1892. Standing alone the deed is valid, and the will is valid, and neither, offends the statute. It is only by assuming that they must be read together, and- that the property disposed of by both passed only at Mr. Bostw-ick’s death hy virtue of the two instruments that any offense against the statute can he found. It is true that Mr, Bostwick reserved power in the- deed to terminate the trust, and to change and supervise its investment. But he never did revoke it. The fact that he had the power to do so as long as lie lived did" not make the trust effective only- when he should die. It was valid and effective when he created it, and continued to be so unless lie chose to destroy it. . It was not given life by his death. That event only took.away the power to destroy it. In a sense it. became absolute only when the ¡Dower to destroy it was gone: hut that power never having been exercised its validity and the passing of the property and rights by it depended upon what was done at its execution and upon the terms contained in" it.
Counsel for appellants do not contend that Matter of Bostwick (160 N. Y. 489) is decisive of the question now involved, and it does not seem tó me that it is,-although I confess to some embarrassment because of it. .The question there under review wras whether a transfer tax could be imposed on the' property passing by this trust deed. ■ The Transfer Tax' Law in force at the time of the testator’s death (Laws of 1892, chap, 399, § 1, subd. 3) provides for the - imposition of a tax upon a transfer of property when it was made in-contemplation of. death or intended to take effect in “possession or enjoyment ” .at or after such death.' .It was deterriiinedthat the creator of the trust retained such dominion over the fund that its possession and enjoyment, did-not become absolute in a taxable sense,, until his death, when the power to revoke ceased. That a tax may have been, properly imposed under the peculiar provisions of the Transfer Tax Law does not compel the óonclusion that the , trust deed must be engrafted upon the will for the "purpose of making the will invalid. The trust deed provided that in case. Nellie should-die without issue the fund should revert to testator or his ■estate. As the event happened, the. residuary estate of "the testator was augmented from the termination of the trust by such death. If Nellie had died an hour before the testator, I apprehend there *271•could have been no question that he could have given in trust for two lives the exact fund which had been held in trust for her. The fact that the fund had been once tied up would not prevent its being again suspended in absolute ownership for the prescribed two lives. Uor is there any difference from the fact that she lived several years and it then fell into the residuary estate of the testator and under the operation of his will. Unless the deed and will must of necessity be read together, there is nothing in the fact that the fund came to the testator’s estate from the termination of a former trust, even though such trust was created by himself, which renders the provisions of the will void. The testator had the right to will such an expectant estate contingently vested in himself, and he was not prevented from so doing because it had been held in trust for one life or two, and lie could by his own will dispose of it in trust to the limit of the law.
I do not think the two instruments must or should be read together, and I, therefore, vote for an affirmance of the judgment.
Patterson, P. J., concurred.
Judgment modified as directed in opinion, and as modified affirmed, with costs to all parties separately appearing, payable out of the fund.