The nub of the case is well stated by Judge Evans, as follows:
“In legislating against perpetuities the lawmaking power did not intend to overthrow testamentary provisions such as appear here upon the ground that at the beginning it would take some months to do the necessary adminis- ‘ trative work preliminary to the distribution of the estate among legatees. It must be supposed that this necessary status was not an evil to be remedied by legislators.”
This is in accord with the views of the state courts expressed in a suit between the same parties to construe this same will. In that suit it was prayed that the trust attempted to be created by the fifth clause of the will and the remainders limited thereon be adjudged void. The *115Supreme Court, Special Term, stated the contention of the plaintiff in that suit as being:
“That the trusts created by the will are invalid because the estate does hot vest in the trustee in possession immediately oil the death of the testator but is postponed while it is being administered by the executors. The plaintiff also claims that all the contingencies on the happenings of which the ultimate estates in remainder vest, may happen while the property of the estate is in. the hands of the executors, and the time allowed by law for the suspension of' the power of alienation may pass before the trust estate comes into possession of the trustee.”
This is precisely the argument here presented. The Special Term, the Appellate Division (151 App. Div. 514, 135 N. Y. Supp. 928, and 151 App. Div. 885, 136 N. Y. Supp. 1137), and the Court of Appeals (206 N. Y. 743, 100 N. E. 1128) all decided adversely to the plaintiff.
The fifth clause is too long to quote; it gives all the residue of testator’s property, real and personal (after payment of certain specific legacies), to the United States Trust Company, in trust to invest and keep invested, to pay out of the income to the widow (until death or remarriage) $5,200 annually, to pay the balance of income annually in equal shares to testator’s three daughters (with the usual provision for surviving children of deceased daughters); as to the principal of the trust fund, upon death or remarriage of the widow, to. divide the same into as many equal shares as there may be daughters living and issue of daughters dead; thereafter, during the life of any then surviving daughter to pay the income of her share to her, and at her death to-pay over the principal to her issue surviving. There is the usual provision to cover the case of a daughter dying without issue.
Plaintiff concedes that this is a perfectly valid clause, and that, if the seventh clause of the will had merely nominated and appointed executors, this suit would not have been brought. She seeks to- sustain, the bill on what seems to us a strained and unreasonable construction, of this seventh clause. That clause reads as follows:
“Seventh. I hereby nominate and appoint my sons-in-law Lascelles O. Maxwell and Thomas Y. Crafts, both of the borough of Brooklyn, city and state of New York, to he the executors of this will, and I hereby authorize and empower them and the survivor of them to lease or sell all or any portion of the real estate of which I may die seised, at such times and in such manner as shall seem best in their discretion, and to execute and deliver good and sufficient leases and conveyances therefor; and I also authorize and empower my said executors to retain any securities or investments in my possession at the time of my death and to turn over all or any part of such investments to my said trustee, and my said trustee to accept and hold any such securities or investments and to apportion them among the trust funds hereinbefore created at the respective market prices of such investment when so turned over or apportioned; and I further direct that the securities of the Standard Oil Company which may be held by me at the time of my death shall not be disposed of by either my executors or my said trustee during the life of my above mentioned wife without the consent of all my children surviving at the time and that after the division of ruy property upon the death or remarriage of my said wife, that none of such Standard Oil Securities shall be disposed of by my trustees without the consent of the beneficiary of the fund to which the same may respectively be apportioned; I further authorize and empower my said executors and my said trustee to invest the moneys of my estate which may come into their hands in the first mortgage bonds and stocks of any railroad company owning or operating a railroad within the United States *116oí America which has paid its dividends of not less than four per centum per annum upon its capital stock for not less than ten consecutive years immediately preceding such investment, as well as in the securities authorized by law.”
The statutes of New York provide that the absolute ownership of personal property shall not be suspended by any limitation, or condition for a longer period than during the continuance and until the termination of not more than two lives in being at the death of the testator. That is the period of suspension provided by the fifth clause with its express trust. The theory of plaintiff is that the seventh clause creates another trust estate vested in the executors, which estate may possibly unlawfully postpone the taking effect of the United States Trust Company’s trust as well as the remainders limited to the issue of the daughters.
The draughtsman would have produced a more carefully articulated structure, if he had inserted two clauses (instead of the seventh single clause), one dealing with special powers or authorization to the executors, the other dealing with special powers or authorization to the trustee. It is generally desirable to provide some such authorization as to sale or leasing, as to retention of investments, as to distribution of designated investments, as to investment and reinvestment of money realized from sales. In this case it was the wish of the testator to give the same power and authority in these matters to the trustee that he gave to the executors, so the draughtsman undertook to make provision for both these grants of power in a single clause. In consequence the words “executors and trustees” repeatedly appear in conjunction ; but it seems to us perfectly manifest that there was no intention to give the executors any other or different status from what they would have as executors merely, on whom certain authority as to marshaling and investments was given,'without the exercise of which administration would prove more burdensome to the estate.
We concur with Judge Evans in his reasoning and conclusion.
The decree is affirmed, with costs.