#### Henry W. Jessup, as Guardian *ad litem*of Harry Milligan Chandler, an Infant, Plaintiff, *v.*The Pringle Memorial Home, Impleaded, etc., Defendants.

(Supreme Court, New York Special Term,

May, 1899.)

Devise to a corporation to be formed in the future — Improper suspension of the power of alienation not caused by a precedent life estate.

The will of a testator, after giving his residuary estate to his brother-in-law for life, gave the remainder over to a corporation which he requested his executors to cause to be formed after his death and *428within a period not exceeding the lives .of .two persons whom he named. Such a corporation was formed by the executors after the death of the testator and that of the brother-in-law and within the . period prescribed.

Held, that the testator had a right to devise his property to a corporation to be. formed after his death.

That such a devise created a future estate purely contingent in its character and one which did not require a precedent estate to support it. That, in this,view, the life estate had no effect updn the contingency attending the creation of the corporation and the vesting of the estate in it, and that, consequently the power of alienation was not suspended, for more than two lives in being at the death of the testator.

Action for the construction 'of a will.

David Bennett King and Henry W. Jessup, for plaintiff. '

Robertson A Harmon, for defendant Milligan.

Nelson Zabriskie, for Pringle Memorial Home, etc.

Beekman, J.

Samuel M. Pringle died on the 31st day of October, 1897,.unmarried and childless. He left .a will dated on the 8 tli day. of May, 1897, in'and by which, after directing the-pay^ mént of his debts and certain pecuniary legacies) he gave the following directions: “Third. • I do héreby give, devise and-bequeath to my brother-in-law, David W. Benton, of Hew York city, H. Y., all the rest, residue and remainder of .aljl the .property, real and personal, of .whatever name or nature and wheresoever situated, of which I may be seized or possessed, or to which I may be entitled.at,the time'of-my decease, after payment of the bequests or legacies hereinbefore set forth, to have, hold and enjoy the same and to receive and use the rents, issues and profits thereof for and during the term of his natural life and the remainder thereof (ex-' isting after the death of said David W. Fenton and the consequent termination of said life estate), over in fee simple absolute to the corporation to be formed for the objects, uses and purposes and as provided for and stated in the next succeeding paragraph of this my- will. ■ .. . . ■'.

. • Fourth. I request my executors, .hereinafter named, or their successor or successors in interest, to incorporate, after my decease. *429under the laws of the State of Hew York and within a period not exceeding two lives in being, that is to say, the lives of Emma H-Lewis and Hettie Graham, named in the second paragraph of this will, an institution or home for respectable invalid, aged or indigent men within the State of Hew York, to be known as The Pringle Memorial Home, in memory of my respected father, Thomas Pringle, and it is my wish that preference therein shall be given to educated and literary men (which institution may at present be incorporated under and in pursuance of section 80, chapter 559 of the Laws of 1895, constituting chapter 43 of the General Laws), and for that purpose to designate, select and associate with themselves the necessary number of persons to sign, make, acknowledge and file the certificate of incorporation as required by law, ■ and also to designate and select the first trustees of said corporation and the number thereof, who shall also make the necessary, usual and legal by-laws of said corporation for the management thereof and the better carrying out of the above named uses, purposes and objects of said corporation, in order that the disposition of my property, made absolutely, to said corporation, as set forth in the third paragraph of this will, may accomplish the greatest amount of good and benefit to those unfortunates whose welfare and happiness I have in view.

*“*I hereby áppoint David W. Fenton and Richard B. Ferris, to be executors of this my last will and testament; hereby revoking all former wills by me made.”

The will was admitted to probate, and both executors qualified and entered upon the performance of their duties as such. David W. Fenton, the life-tenant, died on the 20th day of January, 1899, and thereafter a corporation, entitled “ The Pringle Memorial Home,” was' duly incorporated under and in pursuance of the fourth clause of the will, action having been duly taken by the surviving executor in that regard within the lives of Emma H. Lewis and Hettie Graham.

This action is brought pursuant to section 1866 of the Code of Civil Procedure by one of the heirs-at-law of the testator for a construction of the will, and for a judgment declaring that the devise over to The Pringle Memorial Home is void, and perpetually enjoining any party from setting'up the devise or otherwise making any claim in contravention-to the determination of the court. The other heirs are made parties defendant. The basis of the action is the claim that the limitation over in favor of the home *430is void on the ground that it involved á possible suspension of the power of alienation of the property for a period beyond the limitation of two lives in being at the time of the death of the .testator. I find myself unable to agree with this contention.

The court should be slow to adopt a construction which would defeat the intention of the testator. It is to be presumed that he intended to make a legal rather than an illegal disposition of his property, and the evidence of a contrary intent must be clear and unavoidable to justify a construction which would overthrow his will. The sole question then which is to be determined here is whether, in any event,, the absolute ■ power of alienation of ■ the subject of the devise was suspended by the testator for a longer period than during the lives of Emma II. Lewis and ¡Nettie Graham,. the two persons named in the will within whose lives the devisee corporation must come into existence.

There can be no doubt' that the testator had the right to devise his property to a corporation to be formed after his decease. Tilden v. Green, 130 N. Y. 29. In the case cited, the court says (p. 47): “ That a valid devise or bequest may be limited to a corporation to be created after the death of the testator, provided it is called into being within the time allowed for tha vesting of future estates, is not denied, Perry on Trusts, 372, § 736. That question was decided in Inglis v. Trustees of Sailors’ Snug Harbor, 3 Peters, 99, and in Burrill v. Boardman, 43 N. Y. 254.”

Such a devise creates a future estate, which is purely contingent in its character, and does not require dependence upon a precedent •estate to support it. The definition of. future estates, contained in the Real Property Law, chap. 547, Laws of 1896, § 27, is “ an estate limited to commence in possession at a future day, either without the intervention of a precedent estate, or on the determination by lapse of time or otherwise of a precedent estate created at the same time.” This is simply a reproduction of a similar provision contained in the Revised Statutes, and was intended to sweep away certain artificial rules with respect to the limitation ■of estates no longer required by public policy, or, under modern •Conditions, having any support in reason.

The life estate, which was given by the testator to Fenton, was hot necessary then in order to support the ultimate devise to the corporation, so that if no such estate had been created, and the only devise had been to a corporation of the description mentioned to be formed within the two designated lives, the limitation would *431have been a perfectly valid one. The property would have passed to the heirs-at-law, subject to divestment upon the happening within the prescribed period of the contingency which was to give effect to the executory devise. Uor could there be any possible question With respect to the lawfulness of the suspension of the power of alienation of the property caused by the uncertainty with respect to the absolute vesting of the title. Such uncertainty, under no possible conditions, could exceed the limit of two lives in being at the time of the death of the testator, for it is plain that simultaneously" with the death of the longer liver of the two designated lives there must be an absolute ownership vested either in the corporation, if then in existence, or in the heirs-at-law, if no such corporation had then been created.

Uow, how does the fact that the testator has created a legal estate for life, which gives a prior right to the actual beneficial enjoyment of the property during the lifetime of the beneficiary, vary the conditions with respect to the period of vesting? In no way whatsoever; first, because this life has nothing to do yzith the contingency which affects the coming into being of the corporation and the consequent vesting of the estate. The testator has carefully avoided that by conditioning the devise, solely upon the creaation of the corporation within the lives of two persons whom he names for that purpose. If the condition is not satisfied, the gift ■over fails, even though the life estate devised to Fenton continues, for the period has elapsed within which, by the terms of the wall, the limitation over must take effect. In short, the life of Fenton is not one which affects the creation of the ultimate devise, or which conditions; in any way, its vesting, inasmuch as a legal estate for life,, such as this, is alienable at any time, and the mere fact of its existence cannot be considered upon the question of the ■suspension of alienation when it in no way contributes to such a ■condition. The test of such a suspension is whether there are persons in being who, by uniting in a conveyance of the property, •can transfer an absolute title. It matters not how the title may be ■subdivided, or what the individual rights of the parties may be with respect to present possession, the sole question is, are their interests of such a nature that by joint action they can vest the ■■entire title in another. In explaining the meaning of the section on ■this subject, contained in the Revised Statutes, the revisers say in -their notes as follows: “ Where the remainder is vested, as where "the lands are given to A. for life, remainder to B. (a person in *432being), there is no suspension of the power of alienation, for the 'remainderman, and the owner of the prior estate, by uniting, may always convey the whole estate.” 5 Edmonds’ Statutes, 304.

The correctness of this view .of the statute against perpetuities has never been questioned. ' It forms the basis of the test to which I have referred. Taking now into account the various conditions. which • might from time to time have been found to exist under the will in question, it is plain that under no possible circumstances could it operate so as to exceed the limit of. two lives which has been imposed. If within these lives the. corporation comes into being, all suspension of alienation ceases, either because it is then vested- with an absolute fee in possession, or, if the life estate still continues, because such a fee can be then transferred by its union with the life-tenant in a conveyance of the property. If, however, the corporation is not "created within the two lives, as provided in the will, the limitation over fails to take effect,' the devise lapses and all suspension of the power of alienation ceases, for the heirs-at-law of the testator become immediately vested with an indefeasible estate in fee simple in possession, or if the life estate still continues, the life-ténant and the heirs-at-law by uniting can, at any moment, transfer such a fee to another.

Taking events as they actually occurred, the condition of the title at the time of the death of the testator was as follows: Fenton had á legal estate for life, and was entitled to possession of the property.' The undisposed of residuum of the title passed' to the heirs-at-law in fee, subject to be divested by the creation "of the corporation within the time prescribed -therefor.' Upon the decease of Fenton, which took place before the formation of the corporation, the right to the possession of the property passed to the heirs-at-law, and when the corporation was formed the title' and right of possession in turn immediately passed to and became vested in it.

It is desirable to call attention to the fact that -no trust of any kind is created by the testator. This was carefully avoided, for had the provision in favor of Fenton been thrown into the shape of a trust to pay over the income to him during his life, an entirely different question would have been presented, as a trust.estate of that description, unlike an ordinary legal estate for' life, is' inalienable, and there would then have been a possible suspension of alién"ation for more than two lives that' would have been- fatal- to "the ultimate- devise. '

*433The construction which' I have given to the will before me seems to be amply sustained by authority. Bailey v. Bailey, 97 N. Y. 460; Bird v. Pickford, 141 id. 18; Corse v. Chapman, 153 id. 466.

In the case of Bailey v. Bailey, *supra,*the testator devised to his wife a certain house and lot for her life, directing that, upon her decease, the. same should become “ a part of the residue of his estate, and to be disposed of as hereinafter provided.” In a subsequent clause, he devised his residuary estate to. his executor, in trust, to receive the rents, income and interest arising therefrom, and to divide the same into four parts, and to pay one of said parts to his brother Ward; another to his sister Roselia; another to his brother Lewis, and another to his nephew William and his nieces Anna and Sarah, during the natural lives of Thomas Bailey and Webster Mabie. The will made it plain, in its subsequent provisions, that the continuance of the trust was limited solely on the two lives last mentioned. Upon the termination of the trust, the estate was devised in fee to the brothers, sister, nephew and nieces above mentioned. It was claimed that, as to the house and lot devised to the widow for life, there was an illegal suspension of the power of alienation, a view which the court declined to adopt. At page 470, Judge Miller, delivering the opinion of the court, says: “In regard to the devise of the house and lot we think there was no illegal suspension of the power of alienation. By the fifth clause of the will the .use and income of the house and lot were given and devised to the testator’s wife during her natural life, and at her death the house and lot became part of the residuum, which was disposed of as afterward provided in the will. Ho trust was created during the life of the wife and she had the absolute right to dispose of her interest in the house and lot during that period. The power of alienation is, therefore, not suspended during her life. While she had the right to. enjoy the use and income of it, she also had the right to sell her interest in the same if she so wished, and upon her death it passed, under the sixth clause, to the executor, in trust during the Jives named, and, upon their termination, as provided in the seventh clause of the will. It is insisted that the title to the house and lot did not vest until the death of three persons, the widow. Thomas. Bailey and Webster Mabie, and hence there was an illegal suspension of the power of alienation, and the devise was void. The gift of the use and income was equivalent to a devise of the land itself during the life of the widow, *434and she had a legal title and was entitled to possession of the same.”

The court also held that a trust such as was created by the testator was -a valid one, and was to be measured with respect to its duration by the limiting lives expressly designated for that purpose) and not by the lives of the beneficiaries.

In the case of Bird v. Pickford, *supra,*the testator devised his estate, real and personal, to his executors “ in trust, nevertheless, to invest and keep the same invested, and divide the net income arising therefrom equally among my said daughter-in-law, Ophelioe Baltz, and my said cousins Rachel and Addie Van Gilder, the sur- ' vivor or survivors of them during their natural lives.” Immediately following was this, provision: “ Fourthly. If my said cousins Rachel and Addie Van Gilder should die before my said daughter-in-law, Ophelias Baltz, then and in that event I give and devise the *corpus*of said trust estate to the said Ophelioe Baltz, her heirs and assigns forever; but if my said daughter-in-law Ophelioe Baltz should die before my said cousins Rachel and Addie Van Gilder, ' then and in that event I give and devise the *corpus*of said trust estate to such person or persons as my said daughter-in-law Ophelioe Baltz may designate in her last will and testament.”

The court held that the two clauses must be read together, and that it was plain that the estate- could not be tied up longer than during the lives of the two cousins, and that there was no illegal suspension of the power of alienation. At page 20, the court says: “ It is, not sufficient to condemn these clauses that the absolute power of ownership and of alienation may be suspended for three lives or for many lives, provided that such suspension be bounded by two designated lives in being at the death of the testator ” (citing Crooke v. County of Kings, 97 N. Y. 421; Bailey v. Bailey, id. 460. The judgment of the General Term was reversed. 71 Hun, 142.

In the case of Corse v. Chapman, *supra,*the testator gave a legal estate for life to his widow in a certain piece of real estate, and devised all the residue of his estate to his executors to divide the same into eight equal parts, being one share for the use of each one of his -eigh^t children, arid to pay over to each the net income of his or her share for life. As each child died its share was devisbd absolutely to his or her lawful issue, the testator stating that he intended to include issue born after his deaíth. . He further provided that if any of his children died without lawful issue, then-*435the share so set apart for the use of such child should be divided and allotted into as many parts or shares as there might be children of his then living, and that the same should be deemed added to said shares proportionately, severally and respectively, and the rents and income therefrom “ added and paid to his said several and respective surviving children during his or her life.”

The contention was that there was a possible suspension of the power of alienation of the parcel which had been devised to the widow for life for more than two lives in being at the death of the testator, the life of the widow being counted. While it was. conceded that the devise in trust did involve a possible suspension for two lives, the court held that this limit was not exceeded, saying (p. 473), that the life estate had nothing to do with the trusts created by the will, and was alienable at any time by the widow, citing Bailey v. Bailey, *supra.*

These decisions certainly seem to settle the law applicable to the construction of this will conclusively against the contention of the plaintiff. The devise to The Pringle Memorial Home was, therefore, a valid one, and the title to the property in question is now vested in it in fee simple absolute.

Judgment is ordered accordingly. Notice decision and judgment for settlement.

Judgment accordingly.