#### Lucy Estelle Pelton, Plaintiff, *v.*George H. Macy and George B. Phelps, Jr., as Executors of and Trustees under the Last Will and Testament of Oliver S. Carter, Deceased, Defendants.

First Department,

February 7, 1908.

Wills — trust during life of beneficiary’s husband — effect of divorce — stipulation — construction.

A statement in a submission of controversy on an agreed case that a wife obtained an absolute divorce from her husband in this State and that he after-wards married another person and is now her lawful husband is a stipulation in part of a legal conclusion, but since the marriage could have taken place lawfully-without this State the stipulation should be accepted as proof .of that fact.

Under a will giving specified sums, of equal amounts, to each of testator’s daughters and providing that the- bequest to-one of the daughters-in case her husband should be living at the time of testator’s death should be invested and the income paid to her during her husband’s life, and upon his death the principal to be paid to her, the trust is not terminated upon her obtaining an absolute divorce from her husband and his remarrying.

Submission of- a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.

*368
      *Percy L. Hloclc,*for.the plaintiff.

, *William P. Hill,*for the defendant.

LaughlTn, J7:

The" single: question of law presented by . this submission is whether a trust created' by.- the last will ¡and testament of Oliver S. Garter, deceased, for the benefit of the plaintiff, who is his daughter, has terminated. The' precise question is whether the trust wliich has been expressly created- to last *during the life of her husbahd*has terminated *during his lifetime*by her obtaining a divorce from him and his'remarrying again. By the 8th clause of the will the testator gaye a' legacy of' $30,000 to each of his foul-daughters, payable at the expiration of two years after his death. With respect to the legacy to the plaintiff he expressly provided as follows: “ In case, however, the husband of my daughter, Lucy Estellé Pelton, shall be living at the time of my decease, I direct that the amount of her legacy of Thirty thousand dollars ($30,000) shall be invested by my said executors in safe income-bearing securities, and the- income derived therefrom shall be paid to her quarterly during her said husband’s lifetime, and upon his death this limitation shall-cease, and the said sum of Thirty thousand dollars ($30,000) shall be payable to her.” Ho other provision of the will relates to the disposition of this fund in which the plaintiff is interested. At the time the will was made and when it was probated, the plaintiff was the .wife of one Franklin D. Pelton, but thereafter and on the 28th day of September, 1907, in an action , duly brought' by her, in the Supreme Court of this State, against her husband for an absolute divorce, a final decree in her favor dissolving the marriage was duly made and entered. Another fact stipulated is that -thereafter and on the 7th day of October, 1907, said Franklin D. Pelton was married to one Daisy Gordon Hanna and is now her lawful husband. This is a stipulation in part of a legal conclusion, but since the remarriage could have taken place lawfully without this State the stipulation should be accepted as proof of that fact. The marriage took place without the State of Hew York, where it might legally be performed. The defendant's, under ancillary letters, hold within this jurisdiction applicable to the. trust, for the plaintiff contained in said will the sum of $29,157, being the legacy