An instrument purporting to be the last will and testament of this decedent and to dispose of personal property whereof he died possessed is about to be admitted to probate. Pursuant to § 2024 of the Code of Civil Procedure I am asked to pass upon the validity, construction and effect of its very inartificial provisions.
The testator left him surviving a wife and three, infant children. The first clause of his will bequeaths small pecuniary legacies to certain specified persons. The second is in these words: “ I give to my wife $6,000 per year during her life for her support.” The third is as follows : “ I give'to each of my children not less than $600 nor more than $1,500 per year for their education and support until they become twenty-five years of age, as my executrix and executor may think proper. As each of my children becomes twenty-five years of age, my executrix and executor shall give each child $50,000. My executrix and executor are given full power and authority to make any . investments of my estate as they may think proper, without regard to any laws regulating trust or other estates and to make private sales of any of my property.”
It is claimed that as no particular portion of the residuary estate is directed to be set apart for the satisfaction of each of the foregoing bequests, I am
This contention involves the notion that the testator contemplated that no part of the corpus of his estate should be distributed until the death of the last survivor of the four persons interested in the provisions above quoted, except that the sum of $50,000 should be distributed to each of the children upon his attaining the age of twenty-five years ; that save for this exception the entire estate must, if the will be obeyed, be held intact to supply the income for the discharge of the annual payments directed by the will.
If it be true that the corpus of the estate must, even in the event of the death of two or more of the children in the lifetime of the widow and before reaching the age of twenty-five years, or in the event of the death of the widow and of one or two of the children not having attained that age, continue to be held for the benefit of the survivor or survivors, then the will certainly contemplates an unlawful suspension of the power of alienation.
But it seems to me that this was not the purpose of
The income will naturally be the primary source" from which, if the provision in question is upheld, it will in fact be satisfied, but the beneficiary can compel a resort to the corpus at any time if the income shall prove inadequate. The annuity being thus charged upon both corpus and income, and not being connected with any trust, is an interest which the law regards as alienable at the pleasure of the beneficiary; and is not therefore under the ban of the statute against perpetuities (1829, Bradhurst v. Bradhurst, 1 Paige, 331, 346; 1836, Hawley v. James, 16 Wend., 61; 1839, Gott v. Cook, 7 Paige, 521, 535; 1840, s. c., sub. nom. Cane v. Gott, 24 Wend., 641, 664; 1840, Maurice v. Graham, 8 Paige, 483; 1844, De Graw v. Clason, 11 Paige, 136; 1848, Mason v. Jones, 2 Barb., 229, 242, 247; 1852, Lang v Ropke, 5 Sandf., 363; 1853, McGowan v. McGowan, 2 Duer, 59; 1853, Hunter v. Hunter, 17 Barb., 25, 92; 1857, Griffen v.
It follows that the bequest to the testator’s widow is of itself valid, and- that it must therefore be upheld unless the bequest to his children is ineffectual, and the two bequests are so interdependent that neither can stand alone. The only noticeable particulars wherein the latter provision differs from the one already considered are these: that the latter provision is not a gift of a definite annuity simpliciter, but is an annual gift of a sum to be determined by the executors, in the exercise from time to time of a limited discretion, which sum is to be applied to the children’s education and support.
These features of the legacy now under consideration do not, in any legal sense, distinguish it from the legacy to the widow. The grant of discretionary authority to the executors to fix the amount to be applied for the children’s support and education, and the grant of authority to make and change investments, may not unreasonably be regarded as indicating an expectation on the ¡3art of the decedent that resort would be had to the income of the residuary estate for meeting the annual payments; but it is true of these bequests as of the bequests to the widow, that the will contains no direction and no suggestion of a direction that the executors shall discharge them wholly out of the income. I am clear that in the event of insufficiency of income the principal estate could properly be depleted for their satisfaction. The doctrine that an annuity, or a provision in the nature of an
In the -case last named, a testator after giving an annuity of $300, payable out of the income of his estate, directed his executors to provide for the education • of his grandchildren out of the income, and made the annuity a charge upon such income. The court held that there was no suspension of the power of alienation, as the annuity “ might be personally released by the children but for their minority, and a suspension resulting simply from minority is not such as is contemplated by the statute.” In Griffen v. Ford, there was a gift to trustees for this purpose among others : “ to apply out of the income so much thereof as is necessary for the support and maintenance ” of a person named. There was a direction to pay the beneficiary in the event of her marriage an annuity of $100 out of such income during her life. It was held that the trust was not such a trust as suspended the power of alienation but was “in its nature an annuity.”
The cases referred to are like the case at bar, both as regards indefiniteness in the amount of the bequests, and as regards the purposes to which such bequests were made applicable.
The testator’s provision that as each of his children shall become twenty-five years of age-the executors shall give him $50,000 is entirely independent of the provision for the children’s support and maintenance in the interval. There is no present gift of these legacies with a direction for future payment, but the notion of futurity is a part of their very substance. The interests of the legatees therefore are not vested but contingent (Knight v. Knight, 2 Sim. & St., 490; Paterson v. Ellis, 11 Wend., 259, 271; Emmons v. Cairns, 3 Barb., 243; Jansen v. Cairnes, 3 Barb. Ch., 350; Warner v. Durant, 76 N. Y., 133; Everitt v. Everitt, 29 N. Y., 39; Murray v. Tancred, 10 Sim., 465; Smith v. Edwards, 88 N. Y., 92).
The testator has made no disposition of his residuary estate. It appears that after payment of the debts, the legacies bequeathed by the first clause of the will,