#### Louis B. Hasbrouck, as Executor of and Trustee under the Last Will and Testament of Henry W. Bookstaver, Deceased, Appellant, v. May Aletta Knoblauch and Mary B. Bookstaver, Appellants, Impleaded with The Trustees of Rutgers College in New Jersey, Respondent.

First Department,

February 5, 1909.

Will construed—life estate with power to dispose of corpus for support •— when no trust created — when life estate not changed into fee — Beal Property Law, sections 1S9 and 133, construed — provision that trustees convert property into money and pay proceeds to foreign corporation—conflict of laws.

Where a will after devising certain lands to the testator's widow absolutely, bequeathed the residue, real and personal, to the widow ‘ ‘ for her use and behoof during her natural life, she to have absolute control and disposal of all the income to be derived therefrom and so much of the principal as she may deem necessary for her comfortable sustenance and support,” no trust is created, hut the widow is given a life estate with a power to apply the corpus to her comfortable maintenance if deemed necessary by her.

The life estate is not turned into an absolute fee by the power to dispose of the lands or to use the principal of the personal property for support and maintenance if thought necessary.

Said life estate is not changed into a fee by section 129 of the Real Property Law providing that where an absolute power of disposition unaccompanied by a trust is given to the owner of the particular estate, the latter is changed into a fee absolute with respect to the rights of creditors, purchasers or incumbrancers, for said section expressly provides that future estates may be limited thereon in case the absolute power of disposal is not executed. Moreover, the aforesaid power of disposition was not absolute, hut a mere limited power to dispose of the property for the maintenance of the life tenant, if necessary.

Section 133 of the Real Property Law, providing that every power of disposition by means of which the grantee is enabled in his lifetime to dispose of the entire fee for his own benefit, is deemed absolute, does not mean that such grantee shall have a fee, but merely that the power to dispose of the entire fee shall be absolute.

A further provision that on the death of the life tenant the property remaining is to vest in the testator's executor in trust to convert the same into money and pay the income of a portion thereof to the testator’s daughter for life, the principal of that portion to her issue, if an)'’, if not, the principal to the trustees of a foreign educational institution, the balance of the moneys to be paid .to the trustees of said institution in any event, is a valid disposition of thq *379estate and the trustees of the educational institution take absolutely, not in trust.

• The courts of this State will not consider a contention that the money is left to the foreign corporation in the form .of an invalid trust in the absence of proof as to the laws of the State where the institution is incorporated, for the disposition of the fund by that institution is governed by the laws of that State, and the obligation of the trustees of the institution to comply with certain requests of the testator is a matter with which the courts of this State have no . concern.

Appeal by the plaintiff, Louis B. Hasbrouck, as executor, etc., and the defendants, May Aletta Knoblauch and another, from part of a judgment of the Supreme Court, entered in the office of the-clerk of the county of Mew York on the 26th day of May, 1908, upon the decision of the court rendered after a trial at the Mew York Special Term, construing the will of Henry W. Bookstaver, deceased.

*Edward W. S.*Johnston, for the defendants, appellants.

*Henry J. Wehle,*for the plaintiff, appellant. ¡

*Philip M.*Brett, for the defendant, respondent.

Ingraham, J.:

The plaintiff, named as the sole executor in the last will and codicil of Henry W. Bookstaver, deceased, commenced this action for the construction of his will to which all the- beneficiaries therein named are parties, and from the judgment o'f Special Term construing the will the widow and daughter of the testator and the plaintiff appeal. The testator died seized of a house and lot in the city of Méw Y ork in which he resided and certain personal property in Mew York and Rhode Island. He died on September 21, 1907, leaving him surviving his widow, about seventy years of age, and a daughter, thirty-two years of age, who was married and without issue. The value of- the real property owned by the testator at the time of his death was about $85,000, subject to a mortgage of $15,000,. and the personal property, consisting of a leasehold .and securities, was valued at about $28,000. His debts were about $8,000. By the 1st clause of the will the testator provides that a plot of ground with the buildings thereon in the State of Rhode *380Island, purchased by him for and in the name of his wife, he hers absolutely free and clear from any claim whatever from any person or persons, the personal property therein to be a part of his personal estate. The 2d clause of the will provides :

“ I give,'devise and bequeath all my property of every kind, whether real, personal or mixed, to my said beloved wife, Mary B. Bookstaver, for her use and behoof during her natural life, she to have absolute, control and disposal of all the income .to be derived therefrom .and so much of the principal as‘she may deem necessary for her comfortable sustenance and support.”

The principal question is as .to the estate that the testator’s wife took in the testator’s real and personal property under this provision of his will.

It seems to me that the devise of the real estate by this clause of the will gave to the widow a life estate. There are no words of inheritance connected with the devise, but his real property was devised to his wife “ for her use and behoof during her natural life.” That provision standing alone could not be construed as a devise of the fee. y It expressly limited the estate devised to the widow to a .use for life without words of inheritance, and the principle mainly relied on by the appellants that where a fee in real property is devised by a will subsequent words of limitation inconsistent with the estate primarily granted will not be effective to limit the estate granted has no .application. The clause continues : “ She to have absolute control and disposal of all the income to be derived therefrom,” which expressed the right of the owner of the life estate to the -income of the property d uring her life. There is nothing to indicate an intention to dispose of the income of the property after his wife’s death. The clause continues: “ And so much of the principal as she may deem necessary for her comfortable sustenance and support.” The intention of. the testator from this clause seems clear. -He was including in the bequest both real and personal property, his object was to provide for the comfortable support and maintenance of his wife during the remainder of her life, and for that purpose she was authorized to apply the principal of the property devised or bequeathed to her for life. As affecting the real property, there migiht be an implied power of sale so that the property would be changed into money if it became necessary to use it for her com*381fortable support and maintenance, of which fact she was to be the judge. There was no trust created by this provision of the will, which was a simple devise of a life, estate coupled with the power in the life tenant to apply the principal if she should deem the same necessary for her comfortable sustenance and support.

In *Terry*v. *Wiggins*(47 N. Y. 512) the testator gave three lots • to his wife for her sole and absoluté úse and disposal, and further real and personal property “ for her own personal and independent use and maintenance, with full power to sell or otherwise dispose of the same, in part or the whole, if she should require it or deem it expedient to do so.” And it was held that this latter devise and bequest was intended to give a life estate only. As the court said: “The wife would have taken a life estate, and the heirs-at-law of the testator would have been entitled to the realty in remainder.” Attention was called to the distinction in the words used in relation to the three lots which were held to give to the wife a fee and the remainder of the property which gave to the wife a life estate only. We have in the will now before us the same distinction, for the testator provides that the real property which he had purchased for and in the name of his wife should'be hers absolutely, while the remainder of the property should be for her use and behoof during her natural life. And it was further held-in that case that a power of sale annexed to the life estate does not operate to enlarge the estate to a fee; that the power was conferred the better to secure to the devisee the benefit of the property for her personal use and maintenance; that this power was not absolute; that the power could only be exercised under the will in case the wife should require it or deem it expedient; that is, with a view to her personal use-and maiñtenance, for the purpose for which it was given. And this would apply much moi;e strongly in this case when no absolute power of sale was given, but at most one could be implied if necessary to enable the widow to apply a part of the real property for her maintenance and support. There was no power to sell the property or otherwise dispose of it by will or deed except such implied power as was necessary to. carry oat the intention of the testator.

This disposition would also control in relation to the personal property. As to that there was a direct bequest to the wife for her *382life coupled with a power to apply so much of the principal as she would deem necessary for her comfortable sustenance and support. Ho: trust was created and nothing to restrict the absolute right of the widow to possession and use of the personal property during her life by which she was absolutely entitled to the income derived therefrom.

The cases cited by the learned counsel for the widow and daughter of the testator are not applicable. In *Campbell*v. *Beaumont*(91 N. Y. 464) the will in question gave to the testator’s wife all his property.of whatever, kind without limitation, to be enjoyed by her for her sole use and benefit, and it was held that as there were no words of. qualification she was put in the place of the testator as to' the title and all.rights and privileges belonging to it. In *Van Horne*v. *Campbell*(100 N. Y. 287) the testator devised a parcel of land to his wife for life and remainder to his son, his heirs and assigns forever, and another parcel to another, son ; but in a subsequent clause of the will provided that if either of his two sons should die seized of the estate thereinbefore bequeathed or any part thereof without lawful issue, then there was a devise over. It was held that this latter limitation was invalid and that the two sons took a remainder in fee because there was interposed between the .primary and secondary limitation a disposing power whereby the first taker was entitled to dispose of the whole fee for his own benefit and thereby cut off and defeat the ulterior limitation. In *Smith*v. *Van Ostrand*(64 N. *Y.*278), after citing several cases, it was. said : “ These cases sustain the proposition that where an absolute power of disposal is given to the first legatee a remainder over is void for repugnancy. * * * But tliey also recognize the principle that if the *jus disponendi*is conditional the remainder is not repugnant. * * * The power of disposition, if any, in the present case was only for a special purpose, viz., the support of the widow.” The doctrine of *Jackson*v. *Bull*(10 Johns. 19) is declared to be the settled law in this State and the same rule was applied in relation to personal property as that which applied to real estate; -In *Leggett*v. *Firth*(132 N. Y. 7) the testator bequeathed to his wife his personal property after paying from the same certain legacies named, directed that if the personal property should not be sufficient to pay the legacies enough real estate should *383be sold to raise money to pay them, and then provided: “ I also give, devise and bequeath to my wife Ellisheba all the rest and residue of my real estate, but on her decease the remainder thereof, if any, I give and devise to my said children, or their heirs, respectively.” And it was held that the widow took a life estate with a remainder over; with power of sale if necessary to carry out the provisions of the will. In *Banzer*v. *Banzer*(156 N. Y. 429) the devise and bequest to the testator’s wife was absolute, and the devise to the wife "was not affected by the subsequent provision of the will.

There are many other cases cited, both in this country and in England, which so far as possible have been examined, but in no controlling authority has it ever been held, so far as I can discover, that a devise or bequest of real or personal property which limits „ the right of the legatee or devisee to an interest for her life lias been turned into an absolute title or fee by reason of a power of sale or of disposition of the property for a specific purpose if the necessity therefor arises. But the- learned counsel for the appelants insist that the provisions of the Heal Property Law (Laws of - 1896, chap. 547) have changed this rule* and refer to sections 129 and 133 of that act. Section 129 provides: *“*Where an absolute power of disposition, not accompanied by a trust, is given to the owner of a particular estate for life or for years, such estate is changed into a fee absolute in respect to the rights of creditors, purchasers or encumbrancers, but subject to any future estates limited thereon, in case the power of absolute disposition is not executed and the property is not sold for the satisfaction of debts.” By the express provisions of this act, where an absolute power of disposition is given to a life ; tenant it only becomes a fee for the benefit of creditors, purchasers i or incumbrancers, but such an estate is made subject to any future estate limited thereon in case the power of absolute disposition is not executed. Thus, assuming that the widow was given an absolute power of disposition except as to creditors, purchasers or incumbrancers, the statute recognizes the right to give an estate over upon a failure to exercise that power; but in this case there was no abso- , lute power of disposition, but a limited power for the comfortable support and maintenance of his widow. Section 133, also referred to, provides that “every power of disposition by means of which *384the grantee is enabled in his lifetime to dispose of the entire fee for his own benefit, is deemed absolute.” Here the provision relates not ¡to the title which vests in the grantee o'f the power. The statute does not provide that-the grantee of an absolute power of disposition of the property shall have the fee, but that the power which is granted by which the grantee is entitled in his lifetime to dispose of the. entire fee- for his own benefit is deemed an absolute power. Neither of these sections is new, both being a re-enáetment of the ¡Revised Statutes. (1 R. S. 732, § 81; Id. 733, § 85.) I think, therefore, that under the provisions of this will the widow took a life estate in the real and personal property, with a power to use the property if she should deem the same necessary for her comfortable sustenance and support.

The. will then provides that Upon the decease of his wife all the estate, real and personal, then remaining be devised and bequeathed, to his executor in trust, and it is upon the decease of his wife that. the ¡title to the property vests in the trustee. The trustee' is then directed to convert the same into money, to invest $50,000, the income of which he is to pay to the testator’s daughter for life, and; upon her death to pay the same to her lawful issue, and if. the daughter should die without lawful issue her surviving, the sum of $50i,000' is to be paid to the trustees of ¡Rutgers College in New Jersey. The will then provides that the rest of the estate, as soon as it shall be converted info money, shall be paid to the trustees of ¡Rujjgers College in the State of New Jersey, which sum, together with the sum of $50,000, should the same go to the said trustees, is-to be held in one fund, to be known as the ¡Bookstaver ¡Fund, the principal thereof to be invested and reinvested as occasion may require, and the: income derived therefrom to be used for such purposes: as the trustees may deem for the- best interests of the said' college. The direction to pay the proceeds of this property to the trustees of Rutgers College is valid. The appellants, however, claim that by this bequest to the college a trust is created which is invalid. There, are two answers to this proposition. The first is that there is-no proof that under" the laws of the State of New Jersey such a trust is invalid. ' Upon compliance- with the provisions of this will, the absolute title to this fund would vest in the trustees of the college. With the disposition of that fund by the *385college the courts of this State have no concern, as that question must be determined by the law of the State in which the college is located and under whose laws it is incorporated. *(Manice*v. *Manice,*43 N. Y. 303, 387.; *Chamberlain v. Chamberlain,*Id. 424.) It is very clear, however, that the bequest is to the trustees of the college absolutely and not in trust’. They are given the absolute title to the proceeds of the estate, with a request or direction as to the disposition that the college shall make of the bequest. The acceptance of this direction by the legatee is not made a condition of the gift; it took effect absolutely and by it the trustees of the college become the owners of the property bequeathed. Whether or not the trustees were bound to comply with the request of the testator, or compliance with such request could be enforced is a matter with which the courts of this State have no concern, and that question should be left to the courts of the- State of New Jersey under whose laws the college was incorporated.

My conclusion, therefore, is that there is here a bequest of the real and personal property of the testator to his widow for life, with a gift over to the testator’s' executor as trustee, to commence upon the death of the widow and that during her life she is not a trustee.

The judgment appealed from is, therefore, modified accordingly and as modified affirmed, with costs to all pa'rties who have appeared payable out of the estate.

Patterson, P. J., McLaughlin, Clarke and Houghton, JJ., concurred.

Judgment modified as directed in opinion, and ■ as modified affirmed, with costs to all parties appearing payable out of the estate. Settle order on notice.