In re the Judicial Settlement of Account of Proceedings of Bankers Trust Co.

Paragraph “ thirty ” of the last will and testament of the decedent provides as follows: “ In case my estate is worth more or less at my death, or if any of the persons, designated in these trusts, should die, before or after me, the amounts left to Prosper J. Aucaigne, Josephine Jacquin, Blanche Ams, Emil Ams, Jr., Hortense Ams, Mrs. Botsford, Mrs. Schoener, Blanche Covary and Martha Hobson are to be proportionately increased or decreased as the case may be, and upon the death of the last trustee legatee, these amounts are to go to my nearest heirs at law.”

Prior provisions of the will, after specific legacies to most of

The executor who is the present accounting trustee made its account as such and a decree was entered thereon. No construction was asked for and no objection was made by any of the parties in that proceeding.

Josephine A. Jacquin, the beneficiary of one of the said trusts, has now died, and the trustee is in doubt as to the validity of the disposition of the principal of her trust fund, and asks for a construction of paragraph thirty quoted above determining the manner in which the same shall be distributed.

The provision as to the share of Blanche Ams in the said principal is legal because the general legacy to her was outright, and as her share in such principal is to be added to her legacy, she obtains this share without the intervention of any further trust. It is quite evident, however, that the testator intended that the shares of the other persons in such principal should be added to the respective trust funds established for their benefit because he provides that “ upon the death of the last trustee legatee, these amounts are to go to my nearest heirs at law.” By “ trustee legatee ” I assume he meant beneficiary of a trust. As to these shares a limitation of one life has already been effected, and a limitation for the life of the next beneficiary involves a second life. The further limitation is, therefore, for more than two lives in being and hence the trust term constitutes an unlawful suspension of the power of alienation. (Real Prop. Law, § 42; Mansbach v. New, 58 App. Div. 191 ; affd., 170 N. Y. 585 ; Matter of Finck, 171 N. Y. Supp. 573 ; Pers. Prop. Law, § 11.)

The question involved is whether the trust for this deceased beneficiary fails in its entirety, or may be given effect as to some of its provisions and adjudged invalid as to others.

The executor having accounted and having set. up the various trusts of which this is one, it might be urged that the persons cited upon that accounting are estopped from raising a question as to the validity of this trust; at least to the extent to which, with their acquiescence, it has functioned; and none of them have

The law seems to be well settled that where some of the trusts are legal and others illegal, and they are so connected that if effect is given to some portion and the other invalidated the presumed wishes of the testator will thereby be defeated, or where it is evident that manifest injustice will result to the beneficiaries therefrom, all must be construed together and all must either be held valid or invalid. Where, however, several trusts are created and they are independent of each other, each trust complete in itself, and the legal can be separated from the illegal without the consequences above set forth, and without violating what the testator might in an emergency be presumed to wish, the illegal trust may be cut off and the legal be permitted to stand and thus the intention of the testator be effectuated, so far as the law will permit this to be (¿one. (Kennedy v. Hoy, 105 N. Y. 134 .)

In the case last cited, effect was given to a trust for the benefit of a son during his life, to effectuate the primary intention of the testator to care for the son and his family, and the trust provisions to come into effect after the death of the son were held invalid. In Carrier v. Carrier ( 226 N. Y. 114 , 124) a trust was established by deed for the benefit of husband and wife and two daughters during the lives of the husband and wife. Upon their death the corpus was to be divided into two trust funds for the benefit of two daughters with contingent remainders to their issue. The trust during the life of the husband and the wife was upheld in order that the primary purpose, which was to maintain the family as a unit while the husband and wife lived, might be given effect, and the trusts after the death of the husband and wife were declared invalid. In Van Schuyver v. Mulford ( 59 N. Y. 426 ) a trust for the benefit of a wife during her fife, and after her death for the benefit of two daughters for their lives, and after the death of all three the corpus to the issues of the daughters, was upheld during the fife of the wife to carry out the primary object of the decedent to support his wife, and the devise over and the subsequent provisions for the fives of the daughters were held invalid. In Matter of Trevor ( 239 N. Y. 6 ) it was said: “ But, if a way may be found to preserve what is essential and legal, that which is illegal and of minor consequence must not be permitted to defeat the clear purpose of the testator.

‘ The provision that in given circumstances a share shall fall back into the general body of the trust and remain unsevered from the bulk is so subordinate in importance and so separable in function that we are at liberty to cut it off and preserve what goes before.’ (Matter of Horner, 237 N. Y. 489 , 495.) ”

The intention of the testator was quite clear; he desired to provide for the care and support of the deceased beneficiary. That was his primary purpose; to that end he wished to devote the income, and if that was insufficient, so much of the principal as the trustee deemed necessary, and that purpose should be given effect if it is possible to do so.

The language of the paragraph in which this purpose is stated, and in which the trust is created, does not suspend the power of alienation for more than one fife. If the trust has been rendered invalid, it is due to paragraph “ thirty ” which provides what shall be done with the principal after the death of the life beneficiary.

In order to give effect to the intent of the testator as nearly as this may be done without involving an illegal suspension of the power of alienation as to any part of the principal of the trust fund in question, it would be necessary to terminate the trust as to the amount by which the trust funds of each of the survivors are augmented upon the death of each of the latter respectively. If this is done, the trust period would be (a) as to the whole principal, for the life of the deceased beneficiary, Josephine A. Jacquin, and (b) as to each share of the principal" added to the other trust funds, for the fife of the beneficiary thereof respectively. This would appear to be a way to preserve what is legal by cutting off that which is illegal and of minor consequence (Matter of Horner, supra; Matter of Trevor, supra); his primary purpose would not thereby be defeated, but on the contrary would be effectuated as far as permissible, and no manifest injustice would result to any beneficiary; hence

I accordingly hold that the trust for Josephine A. Jacquin was valid for her life; that upon her death, Blanche Ams is entitled to receive outright a proportionate share of the principal, and the remaining trusts referred to in paragraph thirty are augmented by proportionate shares thereof, and that upon the death of the beneficiary of each of such trusts, the same ends as to the amount of such augmentation, and the latter then passes as if the deceased testator had died intestate.

Costs to the petitioner and an allowance to the special guardian payable out of the estate.

Settle decision and decree accordingly.