#### Dora E. Endress, Appellant, *v.*Lorin G. Willey and Pearl H. Willey, Individually and as Executors, etc., of Charles B. Willey, Deceased, and Others, Respondents.

Fourth Department,

November 12, 1907.

Will construed — trust with incidental direction for unlawful accumulation— when validity of trust not affected—disposal of unlawful accumulation.

Where a will creates a valid trust, hut in connection therewith directs an express or implied unlawful accumulation of income, if the valid trust is the main purpose of the will and the provision for accumulation is incidental merely, the trust will be sustained so far as it is legal, while the unlawful accumulations will pass under the residuary clause of the will, if any, otherwise as unbequeathed assets. ' •

A will which gives the whole estate, real and personal (with some exceptions), to executors in trust to collect the income, and directs them after paying taxes and expenses of the estate, home expenses, including those of the testator’s wife specifically provided for, to keep the estate and any balance of income remaining invested so as to yield a good income until the death of the wife, and then after the payment of certain legacies, etc., to divido the residue and remainder “of my estate” among certain sons, creates an illegal accumulatitin of income. But the trust is valid and unaffected by the illegal provision for accumulation, which is merely incidental, and any accumulation remaining on the death of the life beneficiary is not part of the trust fund, hut passes under the . residuary clause.

As the testator provided for the division of the remainder “ of my estate ” after the death of the life tenant, thfe words apply to the whole estate, and are- as effective as a residuary clause as if contained in a separate paragraph.

Robson, J., dissented.

Appeal by the plaintiff, Dora E. Endress, from certain parts of a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Livingston on the *1117th day of February, 1907, upon the decision of the court rendered after a trial before the court without a jury at the Livingston Trial Term.

*Clare A.*Pickard, for the appellant.

*B. G. Foss*and *George Clinton,*for the respondents.

Williams, J.:

The judgment should be affirmed, with costs.

The'action was brought to procure the will of Charles B. Willey to be adjudged invalid and that he died intestate as to his real and personal estate.

The claim made by the' plaintiff was that the 2d clause of- the will was invalid because it created a trust, and as a part thereof illegally directed the accumulation of tlie-income from the real and personal property involved in the trust. The court found the trust provided for was valid, except so far as it provided for the- accumulation'of income, that such provision for accumulation was invalid, but did not affect the balance of the trust provision, that the surplus income belonged to the three sons named in 2d clause of the will and the plaintiff had no interest therein.

The téstator died May 27, 1904, leaving a widow, three sons and two daughters. By the 2d clause of the will he gave all his real and personal property (except some portions otherwise'- disposed of) to his executors in -trust to collect the income therefrom, to pay from.the income all taxes, costs and expenses of the estate, home expenses and those of his wife specifically provided for, and to keep the estate and any balance of income remaining after the *payments*aforesaid invested so as to yield a" good income until the death of his wife, and then *pay*each of his two daughters $15,000 and cancel a mortgage held against plaintiff and her husband; and after the payment of such legacies to the daughters, and all debts and expenses, to divide the balance among his three sons equally. The widow died November 13, 1905, one and one-half years after the testator. The property left by the testator was personal of the value of about $38,000 and real of the value of many hundreds of thousands of dollars. The executors qualified and acted as such. After the death of the widow they paid to the plaintiff her legacy *112of $15,000 and discharged the mortgage against her and her husband. Pláintiff received and has ever since retained the legacy and discharge of mortgage. It does not appear what income was received by the executors under the 2d clause of the will or whether after making the payments directed therein there was any, and if so how much income left, subject to the provision for investing or accumulating the same. We agree with the trial court in his finding that this clause of the will did provide for an illegal accumulation of income. It was conditioned upon there being in fact any income to accumulate after making the payments provided for, but if, upon an accounting for the income, there shall be found any balance then it could not be regarded as a part of the trust fund, but must be disposed of as uubequeatlied assets Or under the residuary clause in the will. The general trust provisions weré legal and were unaffected by the illegal provision as to accumulation of income. The latter provisions were merely incidental to the carrying out of the other trust provisions which were the real purposes of the testator.

Under these circumstances the. rule laid down in *Cochrane*v. *Schell*(140 N. Y. 516, 536) is applicable and should control our decision. That rule is, in substance, that where a valid trust is constituted under á will, but connected, with, it is an express or implied direction for an unlawful accumulation of income, if the valid trust is the main purpose of the will and the provision for accumulation is incidental merely, the trust.will'be sustained so far as it is legal and the amount of the unlawful accumulation will pass under the residuary clause in the will, if there is one, otherwise as unbequeathed assets. (See, also, *Henderson*v. *Henderson,*113 N. Y. 1, 15, and cases therein referred to.) So that the trial court was correct in sustaining the main trust as. valid and in holding that- the provision for accumulation of income was illegal.' Whatever income, therefore, was accumulated did not pass under the trust provision as trust estate, and was in no way disposed of unless there was a general residuary clause that would cover the same. The trial court apparently held that the provision at the end of the 2d clause of the will *was*such a residuary clause as took the accumulated income, if any, to the three sons therein named. The language was : “ After the payment of the above legacies and all debts and expenses, then *113to divide tlie residue and remainder *of my. estate*equally, share and share alike, in full amongst my three sons,” etc. This clause, it will he observed, does not relate solely to the trust provision or to the trust property. It covers *dll his estate*and provides for payment of debts and expenses which are in no way connected with tlie trust provisions. It is just as effectually a general residuary clause as though it Were inserted as a separate clause in the will, and, therefore, being general and unlimited, it carried all that fell into the residue by lapse, invalid disposition or other accident, *(Matter of Bonnet,*113 N. Y. 522; *Riker*v. *Cornwell,*Id. 115.)

In this view of the case the court very properly held that the plaintiff had no interest that entitled her to maintain this action, and in this decision we concur. We do not see that it was necessary for the trial court to pass upon the question of estoppel by reason of plaintiff having accepted and retained the provision for her under'the alleged invalid trust clause in the will, and we refrain from passing upon that question here.

All concuyred, except Dobson, J., who dissented.

Judgment affirmed with costs.