Haynes v. Sherman

• Citation: 22 N.E. 938,117 N.Y. 433
• Parties: HAYNES v. SHERMAN et al.
• Decision Date: 26 November 1889
• Court: New York Court of Appeals

117 N.Y. 433

22 N.E. 938

HAYNES

v.SHERMAN et al.¹

Court of Appeals of New York.

Nov. 26, 1889.

Appeal from supreme court, general term, second department.

Action by Ella M. Haynes, a daughter and heir of Elijah T. Sherman, deceased, against Catharine M. Sherman, widow and executrix, etc., of said Elijah T. Sherman, and others, to declare void a devise by said testator of certain lands, and for a partition or sale thereof. The judgment of the special term in favor of plaintiff was reversed by the general term, and plaintiff appeals. 1 Rev. St. N. Y. p. 723, § 15, provides that the absolute power of alienation shall not be suspended by any limitation or condition whatever, for a longer period thatn during the continuance of not more than two lives in being at the creation of the estate.

Abel E. Blackmar, for appellant.

S. P. Nash, for respondents.

EARL, J.

Elijah T. Sherman died in the city of New York in October, 1886, leaving a will in which he disposed of his estate as follows: ‘After paying my just debts, I give, devise, and bequeath all my estate, real and personal and mixed, and wherever situate, to my wife, Catharine M. Sherman, in trust, nevertheless, to have and to hold the same, and use so such of the income and principal as she may deem necessary for her support, and the support of our children, until our youngest child now living shall arrive at the age of twenty-one years, or would arrive at that age if living; and at that time I order and direct my said estate to be divided among my legal heirs then living, in such manner and proportion as they and each of them would be entitled under the laws of the state of New York if I had died intestate.’ And he appointed his wife sole executrix, and empowered her to sell and convey all, or any portion, of his estate at such prices and upon such terms as she might elect.

The plaintiff contends that this disposition of his estate by the testator is in valid, because it offends against the statutes which prohibit perpetuities, and that therefore the estate has passed as if he had died intestate; and we are of that opinion. The youngest child of the testator living at the date of his will was born December 10, 1872, and will not, therefore, attain the age of 21 years until the 10th day of December, 1893. The defendants contend that the words ‘or would arrive at that age if living’ may be disregarded, and that the trust would be simply for the minority of the youngest child,-would terminate at his death, if he died before 21; and hence that it could not extend beyond his life, and is therefore valid. When a will contains separate trusts, some of which are legal and some illegal, or various limitations of estates, not dependent upon each other, or essentially connected, some of which are legal and some illegal, the illegal portions may be stricken out, and the other portions permitted to stand; and the books are full of illustrations of such cases. The courts will strive to uphold so much of a will as they can, without frustrating the main intention of the testator, or violating any rule of law. Here it is clear that the testator meant that the trust should last, not only during the life of his child, if he should die before 21, but until the time he would reach 21 if living. It is the same as if he had in terms created a trust to last until the 10th day of December, 1893. It was then, and not till then, that he meant his estate should be divided among his legal heirs living at that time. There are not two trust terms, but one, and there is but one trust; and hence no part of the trust term can be cut off, and no part of the trust can be disregarded, for the purpose of rendering the remainder of the term and trust valid. It matters not that the youngest child might live until he should be 21. He might not live so long; and that is enough to condemn the trust. In determining the validity of limitations of estates under the Revised Statutes, (1 Rev. St. p. 723, § 15; page 773, § 1,) as said by GROVER, J., in Schettler v. Smith, 41 N. Y. 328, ‘it is not...