Brunt v. Van Brunt

• Decision Date: 27 November 1888
• Citation: 19 N.E. 60,111 N.Y. 178
• Parties: VAN BRUNT v. VAN BRUNT et al.
• Court: New York Court of Appeals Court of Appeals

111 N.Y. 178

19 N.E. 60

VAN BRUNT

v.VAN BRUNT et al.¹

Court of Appeals of New York.

November 27, 1888.

Appeal from supreme court, general term, First department.

Peter W. Van Brunt brought this action against Stephen Van Brunt and others, who were the children of Margaret Van Brunt, with their respective wives, husbands, and children, for a partition of the real estate of which she died seized. Her executors were also parties. The special term sustained a demurrer to the complaint, and this judgment was affirmed by the general term, (48 Hun, 614.) Plaintiff again appeals.

Elon R. Brown, for appellant.

Wm. C. Spencer, for respondents.

FINCH, J.

Margaret Van Brunt, at her decease, left eight children her surviving. Seven of the eight were married, and had children of their own. By her last will some few specific legacies were given, and then the balance of the estate was disposed of by a residuary clause upon the asserted invalidity of which this action is founded. By that clause the testatrix devised and bequeathed the whole of her estate, real and personal, to her executors, in trust to collect and pay over the rents, incomes, and profits to her children in equal proportions during their natural lives, and after their decease to their respective wives or husbands during their lives, or until they should remarry. Pausing at this point, we find, as it respects each of the eight children, a trust for the life of such child, followed by a second life-interest to the surviving wife or husband, as the case might be. It is conceded that ordinarily, and in the absence of qualifying expressions, the husband and wife referred to in the second limitation would be one living at the death of the testatrix, and so the limitation would run, in each part of the divisible trust, for two lives in being at its creation. But this construction is claimed to be inadmissible by reason of qualifying words contained in the devise and bequest of the remainder. The will proceeds: ‘If any of my children should die without issue, or without leaving a husband or wife him or her surviving, then I give, devise, and bequeath his or her share to the survivor or survivors of them, share and share alike.’ There is no defect in this limitation over of the remainder considered by itself, but the expression ‘a husband or wife’ is alleged to reflect back upon the construction of the second life-interest, and make that a limitation, not upon the life of the husband or wife in being at the decease of testatrix, but upon the life of any husband or wife whom oa child should thereafter marry, who might be a person born after the death of the testatrix, and so not in being when the limitation was created. And this construction is said to be fortified by the next provision, which is this: ‘If he or she leave a husband or wife him or her surviving, then I give, devise, and bequeath his or her share to the survivor or survivors of my said children, share and share alike, after the decease or remarriage of said husband or wife.’ Here, it is argued, is distinctly manifested a purpose to postponethe vesting of the remainder in possession until the death of the first life-tenant, and then until the death or re-marriage of any husband or wife who may survive, and who might be a person both born and married after the death of testatrix. The final clause of the paragraph respects the contingency of children dying leaving issue, and gives to them per stirpes, after the death or remarriage of their father or mother, their parent's share of the rents and profits during minority, and then their interest absolutely.

The next paragraph of the will reads thus: ‘I hereby authorize and empower my said executors hereinafter named, at any time when in their judgment it may be advisable to do so, to sell any part or all of my said personal and real estate in the last preceding paragraph referred to, and invest the proceeds arising therefrom in some good, safe, and sufficient security.’ One of the children now brings this action for a partition, alleging that the whole trust is void because it suspends the absolute power of alienation for more than two lives in being at its creation, that the testatrix died intestate as to the whole residue beyond the specific bequests, and the plaintiff, as heir at law, is entitled to his proportion of the real estate. To this complaint a demurrer was interposed, on the ground that no cause of action was stated. The demurrer was sustained by the special term, and that decision affirmed by the general term. The conclusion reached went upon the ground that, whatever might be true of the limitations after the first life-estate, the power of alienation was not suspended because of the authority to sell conferred upon the executors by the will.

We are not prepared to give our assent to the doctrine asserted; but, without discussing that specific question, we think there is no difficulty in affirming the judgment upon the ground that, irrespective of the power of sale, the trust is valid, and its limitations not too remote. As we have said, the words ‘husband and wife,’ as first used in the will, would naturally and ordinarily refer to a husband and wife living at the death of the testatrix. That meaning, and the purpose...