#### The United States Trust Company, Executor and Trustee, Plaintiff, *v.*Giovanna P. Maresi et al., Defendants.

(Supreme Court, New York Special Term,

January, 1901.)

1. Will — Separable illegal portions may be rejected.

Separable portions of a will, illegally suspending the power of alienation, may be rejected and the remainder may stand.

2. Trust — Title by implication.

Trustees may take title to a trust estate by implication where title is necessary for the purposes of the trust.

Action for the construction of a will.

Edward W. Sheldon, for plaintiff.

Frederick J. Middlebrook and Ullo & Reubsamen, for defendants.

Russell, J.

It is important to bear in mind in this action to ■construe the will of Pompeo Maresi, deceased, that the instrument was evidently drawn by an unskilled hand, perhaps that of the *540testator himself, with the purpose of effectually stating the wishes of the testator, and yet conforming to legal phraseology possibly deduced from other testamentary instruments inspected by the draughtsman. In the formation of the legal conclusions upon the questions arising for which the plaintiff-executor and trustee desires a controlling instruction, it is not necessary to review all of the provisions of this lengthy instrument. The testator, who came to this country from Italy, over a quarter of a century ago, found here a profitable business as a caterer, and acquired a fortune of perhaps half a million. He left surviving him a widow and four children, none of whom were married, and whose ages ranged from nine to twenty-seven. His main purpose, evidently, was to suitably provide for that widow and those children, giving the widow a proper maintenance, without leaving her any property to dispose of at her death, as her natural heirs were his children, as well as hers, and also to give a sufficient income, in a proper and guarded way, to each of his children, and the ultimate benefit of his property to those children and their heirs. Subordinate to this main purpose he made some charitable benefactions and minor legacies.

There are provisions in the will which, if strictly construed a« independent clauses, offend against the policy of the law of the State of New York. The principal one reads as follows: *“ Eighteenth.*If, at the end of forty (40) years from the date hereof (or, if my wife shall be living at the expiration of this fixed period it shall be postponed until one year after her decease) this estate shall be equally divided between my then surviving children or their lawful heirs.”

I regard this clause as unessential, in construing the main intent of the testator, and as ineffective to destroy the force of the beneficent provisions of the will, as thoiigh never written. He could not suspend the power of alienation for a period of forty years, and there is no reason to believe that he so wished to’ the detriment of any estate or interest conferred by the will. He may, very likely, have intended to say, that, at all events, the estate should be divided by the expiration of forty years, or within one year, after the decease of his wife, if she lived for that period, and the incomplete grammatical construction of the paragraph rather sup' ports this conclusion. Otherwise, the separation can be easily made of this provision from the remainder of the will, the remaining portion adjudged to be valid, and the trust interest of the plaintiff *541held to be good for the period that such trust needs an existence to accomplish the wishes of the testator. Underwood v. Curtis, 127 N. Y. 523.

The provision, in the fourth paragraph, as to the residence on •Columbia Heights, in Brooklyn, that “ After the marriage or death of all of my children the building is to revert to the estate, and the hereinafter mentioned furniture, bric-a-brac, etc., to go to my son, Pompeo Maresi, and, in case of his death, to his male heirs, and if he should have no male heirs then and in that event it is to- be divided between my surviving children *”*is invalid, but was evidently designed to provide a residence for the children who should be unmarried, in case their mother married again, in which event she was not to continue to occupy the Brooklyn residence, and other provision was made for her. The same considerations also apply to the provision in paragraph seventeenth for the occupancy of the Brooklyn residence by the oldest surviving child, in case of the remarriage of the mother.

The executors were given a trust estate in the property, for the purposes named in the will, during the lifetime of the widow Giovanna. It would be otherwise impossible for them to pay the annuities provided for by the will during her life, and discharge the other duties' conferred as to the real and personal estate. The implication is, therefore, effective that the testator intended they should take title. Cochrane v. Schell, 140 N. Y. 516; Morse v. Morse, 85 id. 53.

The will failed to effectually provide for the disposition of the residuary estate, after the purposes of the trust were accomplished, and the four children, therefore, are seized of a vested interest in equal shares of the reversion upon the death of the widow, subject to the annuities to the defendants Adelaide Borlinghi and Francesco Maresi, given by the ninth and tenth- paragraphs of the will.

I am satisfied from the Italian Code, and the testimony of Dr. Tost-i, that the villa, at Lake Como, Italy, passes under the will to the trustees, and is subject to the power of sale conferred upon the executors by the sixteenth paragraph of the will, even were such power of sale necessary to be conferred upon trustees, with the title, and that the residence on Columbia Heights, Brooklyn, was also included in the devise of the residuary estate to the executors, trustees, subject, however, to the provisions as to occupation by the widow.

*542The legacy of $1,000 to the village of Gisazio, Italy, is effective, and the income will he expended, in accordance with the terms of the will, under the direction of the president of the commissioners of charity, at Gisazio, Italy. Matter of Sturgis, 164 N. Y. 485.

The foregoing covers all of the questions as to which the parties seek a construction of the will of this testator. Judgment is directed, therefore, in accordance with the views herein expressed.

Judgment accordingly.