Fargo v. Squiers

• Decision Date: 23 November 1897
• Citation: 154 N.Y. 250,48 N.E. 509
• Parties: FARGO et al. v. SQUIERS et al.
• Court: New York Court of Appeals Court of Appeals

154 N.Y. 250

48 N.E. 509

FARGO et al.

v.SQUIERS et al.

Court of Appeals of New York.

Nov. 23, 1897.

Appeal from supreme court, appellate division, First department.

Action by James C. Fargo and others, executors of William G. Fargo, deceased, against Herbert G. Squiers and oters. From a judgment of the appellate division (39 N. Y. Supp. 648) affirming a judgment for plaintiffs, Herbert G. Squiers, Edward R. Bacon, and others appeal. Modified.

John G. Milburn, for appellants.

William D. Guthrie, guardian ad litem, for infant appellants.

Lewis Cass Ledyard and Edward E. Tanner, for respondents.

HAIGHT, J.

This action was brought by the plaintiffs, as executors and trustees under the will of William G. Fargo, to obtain a construction of the will of Georgia Fargo, who attempted to exercise the power of appointment given her under the will of William G. Fargo. William G. Fargo, a resident of the city of Buffalo, died on the 3d day of August, 1881, leaving a last will and testament, in which he disposes of the residue and remainder of his estate, after making specific bequests, by giving it to his executors, in trust, to convert into money, and to invest, with directions to divide into three equal parts, one of which parts was to be held by his executors for the benefit of his daughter Georgia during life, another part for his daughter Helen Lacy, and the remaining third for his granddaughters Anna E. Fargo and Mary C. Fargo, the daughters of his deceased son. With reference to the estate given to his executors as trustees for his daughter Georgia, he provides that ‘upon the death of my said daughter the principal sum so held in trust for her under this provision of my last will and testament shall be paid and distributed by my executors as she shall by her last will and testament direct; but, if my said daughter shall die intestate, then, if she leave issue her surviving, the said principal sum shall be at once distributed to such issue. If my said daughter shall die intestate, leaving no issue her surviving, then my executors shall distribute, except as hereinafter provided, the said principal sum to my heirs at law then living; each taking the share therein they would have taken had the same been real estate in the state of New York, of which I had died seised, intestate, and survivor of my wife, and had my death been immediately subsequent to the death of my said daughter.’ His daughter died on the 10th day of September, 1892, without issue, but leaving a last will and testament, in which she first declared her intention to dispose of all of her estate to which she was in any manner entitled, and to direct the payment and distribution by the executors of the will of her father of the sum held in trust for her under the provisions of the will, in execution of the power of appointment vested in her thereby. She makes specific bequests amounting to about the sum of $50,000, and then, by the thirteenth clause of her will, provides: ‘All the rest and residue of my estate, of every kind and nature whatsoever, including that of which I have the power of appointment under the will of my father, and any legacy which may lapse or fail, I give and bequeath to my executors,-in trust, however, for the following purposes: To divide the same into four equal parts, and to hold one of said parts for the use and benefit of Gladys Fargo Squiers, another of said parts for the use and benefit of William George Fargo Squiers, another of said parts for the use and benefit of Georgia Fargo Squiers, and another of said parts for the use and benefit of Helen Fargo Squiers, in trust, to accumulate the income, issues, rents, and profits derived from each such share until the beneficiary shall have attained the age of twenty-one years, or, in case of his or her death prior to attaining such majority, until such death; such accumulation to belong absolutely to each beneficiary, and to be paid over to the beneficiary on his or her attaining his or her majority, or to his or her eatate in case of his or her death prior to attaining such majority, free from any trust whatsoever. After the beneficiary has attained the age of twenty-one, and until he or she attains the age of twenty-five, the said shares to be held in trust; the rents, issues, and profits to be paid over annually to such beneficiary; and, on his or her attaining the age of twenty-five, one-half of such share to be paid over to him or her absolutely. After he or she attains the age of twenty-five, and until he or she attains the age of thirty, the rents, issues, and profits of the remaining one-half to be paid over to such beneficiary, annually; and on his or her attaining the age of thirty years, the said remaining half to be paid over to him or her absolutely.’ Other provisions follow, in which it is provided that, in case of the death of the beneficiaries before arriving at the age of 30 years, the fund should be paid to their issue, if any; if there be no issue, then to the persons appointed by their wills, if any; if there be no issue and no appointees, then to the brothers and sisters of the beneficiaries, if any; and if there be no issue, appointees, brothers, or sisters, then to Anna E. and Mary C. Fargo, the granddaughters of William G. Fargo. The beneficiaries named are the children of Helen Lacy Squiers, all of whom were born after the decease of William G. Fargo.

The trust estate created by the will of William G. Fargo was, by the express provisions of the will, converted into personal property; and the courts below have held, with reference to the bequest to the Squiers children under the will of Georgia Fargo, that a trust was created suspending the absolute ownership of one-half of the property until such children should become 25 years of age, and the other half until they should become 30 years of age, respectively; that this was a violation of the statute which provides that ‘the absolute ownership of personal property shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance and until the termination of not more than two lives in being at the date of the instrument containing such limitation or condition; or if such instrument be a will, for not more than two lives in being at the death of the testator.’ 1 Rev. St. p. 773, § 1. Such, undoubtedly, is the effect of the provision, if a trust were created, in so far as it relates to the trust estate created by the will of the testatrix's father, of which she had the power of appointment. The statute further provides that, in all other respects (referring to the section above quoted), limitations of future or contingent interests in personal property shall be subject to the rules prescribed in relation to future estates in lands. Id., § 2. In the case of Mills v. Husson, 140 N. Y. 99-104, 35 N. E....