vivor of them, my executors and trustees hereinafter appointed, in trust, nevertheless, for the uses and purposes hereinafter set forth.

* *

"I hereby request, authorize and direct my executors and trustees to keep the funds and moneys of my estate, not needed in such business as they shall engage in or continue as aforesaid, invested in good and solvent interestbearing securities, and to collect the interest, rents and income of my estate, not herein otherwise disposed of, and reinvest the principal and such part of the income as is not otherwise needed in carrying out the provisions of this will, as often as shall be needful, and to pay over the rents, issues and profits and the principal thereof as follows:

"One-third part of the use, rents, issues and profits of my entire estate, after deducting therefrom the income of twenty-five thousand dollars at the average rate of profits on my estate so held in trust, shall be collected and paid over by my said executors and trustees to my said wife in semi-annual installments; that is to say:

"I wish the $25,000 hereinbefore bequeathed absolutely to my wife to be wholly taken from the third part of my entire estate, and only the remainder of such third of my entire estate, after deducting from her third the aforesaid bequest of $25,000, is to be held in trust for my said wife and the use, rents, issues and profits paid over to her in semi-annual installments for and during the period of her natural life.

"I further direct that during the minority of my daughters, Mary Edna Davidge and Florence Harriet Davidge respectively, my executors and trustees shall clothe, school, educate and maintain them in a manner in keeping with my estate and their station in life, and upon the arrival of my daughter Mary Edna Davidge to the full age of twenty-one years, I direct that onehalf of the accruing net rents, issues and profits of my estate, after deducting the portion thereof hereinbefore bequeathed to my wife, shall be paid over to her semi-annually during the term of twenty years, until she attains the age of forty-one years, at which time I direct that the said one-half part of my entire estate shall be paid over, delivered and transferred to her, for her sole use, to her and her heirs forever.

"And upon the arrival of my daughter, Florence Harriet Davidge, at the age of twenty-one years, I direct that the other one-half, subject to the aforesaid bequest of my wife, of the accruing net rents, issues and profits of my estate to be paid to her semi-annually until she attains the age of fortyone years, at which time the remaining one-half part of my said estate be paid over, delivered and transferred to her for her sole use, for her and her heirs forever.

"And in dividing my estate as aforesaid equally between my said daughters or their heirs it shall be found impracticable to make division of the property so as to be entirely satisfactory to my said daughters, then my said executors and trustees shall at the time my said daughter, Mary Edna Davidge, attains the age of forty-one years, convert my entire estate into money and securities which shall be capable of an exact equal division, one half of which shall be delivered to my said daughter Mary Edna Davidge, and one half of the principal retained by said executors and trustees until my said daughter, Florence Harriet Davidge, shall have attained the age of forty-one years, when the same shall be delivered to her as aforesaid.

"In the event of the death of either of my said daughters before reaching the age of forty-one years, leaving a child or children, then the semi-annual installments of the income from the one-half of my estate, and the final payment and delivery of the entire one-half of the principal of my said estate shall be paid over to such child or children, share and share alike in the same manner and at the same time the same is made payable by the terms hereof to my said daughter; that is to say at the same actual dates such income and principal are made payable to my respective daughters by the terms hereof, such income and principal shall be paid to the child or children of my said daughters or either of them, if they or either of them shall die before attaining the age of forty-one years, leaving a child or children. "If either of my said daughters shall die before attaining the age of fortyone years leaving no child or children, then the share and part of my estate

herein before directed to be paid to her, shall be paid to her surviving sister herein named, at the same times and in the same manner the one half of the income and principal of my estate to such surviving sister hereinbefore made payable.

"In case of the death of either of my said daughters leaving a minor child or children, to whom any portion of my estate is made payable, by the terms hereof, I expressly charge my executors and trustees to see that proper persons are appointed and qualified as guardians of such child or children before paying any portion of my estate over for the benefit of such child or children.

"The foregoing directions to pay over the rents, issues and profits of my estate to my daughters or the survivor of them are all subject to the bequest to my said wife and her portion of said rents, issues and profits hereinbefore given and bequeathed to her.

"The share and portion of my estate upon which the use, rents, issues and profits are herein directed to be paid over to my wife for and during the term of her natural life, shall upon her death become a part of the estate so held by my trustees for my said two daughters and to be treated and distributed between them in same manner as the other part of my estate herein devised and bequeathed for them.

"Provided that if my said wife shall survive the period at which my youngest daughter will, if living, become of the age of forty-one years, then upon the death of my said wife, the portion so held in trust for her shall then be paid over to my said daughters, or their heirs or the survivor of them in manner aforesaid.

"In the event another child or children shall be born to me after the execution of this will by me, then such child or children shall share in my estate equally with my said daughters, and the trust herein and hereby created shall be for the equal benefit of all my children or their heirs share and share alike. And the same shall be payable at the same times and in the same manner as above provided for my daughters, viz.-to enjoy the rents, issues and profits after arriving at the age of twenty-one years and each to receive his or her portion of the corpus of said trust on reaching the age of forty-one years, except the portion so held for my said wife and that shall not be so paid over until her death and not until my youngest child reaches the age of forty-one years, except that after her death such children or the heirs of such of my children as have reached the period when their shares of my estate are made payable, may receive their portions thereof."

Upon the death of the testator, there was found attached to the said last will and testament a paper, in the handwriting of the testator and signed by him, which was offered in evidence by the plaintiff, and received, reading as follows:

"Middletown, N. Y., June 13, 1907.

"To my Executors: I want my property, both real and personal, divided into three equal parts, and my wife, Alice W. Davidge, to have one part, my daughter M. Edna to have one part, and my daughter Florence H. to have one part.

"I hereby revoke the part of my will that gives to my wife the use only of one-third of my property.

"You may close up the personal part of my estate and make the division as soon as you think best and the real estate whenever you think the proper time has arrived. I wish you would be governed by the wishes of my wife and daughters in regard to the disposal of our residence.

"Mamie Collins, Witness."

"Edson G. Davidge.

The plaintiff was married to the testator on the 1st day of October, 1892, and was his second wife, and lived happily with him and. his children by his first marriage until his death. The plaintiff's claim

137 N.Y.S.-9

is that the trust provisions of the will are void, because they illegally suspend the power of alienation beyond two lives in being when the testator died, and that the bequest to her of $25,000 is valid. One of the children of the testator contends that the entire will is invalid, and that the decedent died intestate as to his entire property. On behalf of the infant grandchild of the decedent, it is claimed that the trust provisions do not unlawfully suspend the power of alienation, while the trustees take a neutral position.

[1] I have reached the conclusion that the entire will is invalid. Gathering the testator's intention from the entire instrument, it seems clear to me that he intended that the trust should last, not until each of the daughters should attain the age of 41 years, or until the death of each, only, if one or both of them should die before attaining that age, but, if one or both of them died before attaining that age leaving children, until the very day when she or they, respectively, would have attained that age, if she or they had lived so long. It is to be noted that the testator distinctly says that:

"At the same actual dates such income and principal are made payable to my respective daughters by the terms hereof, such income and principal shall be paid to the child or children of my said daughters or either of them, if they [my said daughters] or either of them shall die before attaining the age of forty-one years, leaving a child or children."

The testator's daughter Mary Edna Davidge was born on January 5, 1879, and his daughter Florence Harriet Davidge on May 24, 1884. It is clear that by this direction the testator intended that, if his daughter Mary Edna Davidge died before reaching the age of 41 years, leaving children, those children should not receive one-half, or on a contingency the whole, of the principal of the estate, until the very day of January 4, 1920, and that in a similar case the children of his daughter Florence Harriet Davidge not until the very day of May 23, 1925, and that the interest upon their portions of the principal should be paid to them semiannually until those dates. This can be the only meaning of the words "same actual dates."

It will also be observed that the testator had previously used the words "term of twenty years" in speaking of the duration of the trust period, extending from the majority of his daughter Mary Edna Davidge to the time when she should receive her share of the principal. It is therefore evident that the testator intended an absolute trust period until January 4, 1920, as to one half of the principal, and until May 23, 1925, as to the other half. Further, the trust period. stated in the will is not even measured only by the lives of his two daughters, for his will states:

"The share and portion of my estate upon which the use, rents, issues and profits are herein directed to be paid over to my wife for and during the term of her natural life, shall upon her death become a part of the estate so held by my trustees for my said two daughters and to be treated and distributed between them in same manner as the other part of my estate herein devised and bequeathed for them.

"Provided that if my said wife shall survive the period at which my youngest daughter will, if living, become of the age of forty-one years, then upon the death of my said wife the portion so held in trust for her shall then be

paid over to my said daughters, or their heirs or the survivor of them in manner aforesaid.

"In the event another child or children shall be born to me after the execution of this will by me, then such child or children shall share in my estate equally with my said daughters, and the trust herein and hereby created shall be for the equal benefit of all my children or their heirs share and share alike. And the same shall be payable at the same time and in the same manner as above provided for my daughters, viz.-to enjoy the rents, issues and profits after arriving at the age of twenty-one years and each to receive his or her portion of the corpus of said trust estate on reaching the age of fortyone years, except the portion so held for my said wife and that shall not be so paid over until her death and not until my youngest child reaches the age of forty-one years except that after her death such children or their heirs of such of my children as have reached the period when their shares of my estate are made payable, may receive their portions thereof."

The provisions of the will relative to the establishment of the trust are therefore clearly violative of the statute against the unlawful suspension of the power of alienation and ownership of property. There is but one trust, and that is void under the statute and the well-settled law of this state, and that applies to the personal property as well as to the real estate. Real Property Law (Consol. Laws 1909, c. 50) § 42; Personal Property Law (Consol. Laws 1909, c. 41) § 11; Haynes v. Sherman, 117 N. Y. 433, 22 N. E. 938; Hagemeyer v. Saulpaugh, 97 App. Div. 535, 90 N. Y. Supp. 228; Boynton v. Hoyt, 1 Denio, 58. [2] It must be held, from all the provisions of the will, that this bequest and the income payable to the widow were intended to be in lieu of dower. To now give the testator's widow the legacy of $25,000, and also her portion of the principal of his estate, as to which he died intestate, the trust provision being invalid, would violate the entire scheme of his will. While an invalid and ineffective provision of a will may be ignored, and effect be given to other provisions that are in themselves valid, yet that cannot be done where the clear intention of the testator would be thereby defeated and the entire scheme of his will thwarted. As the will in question is one entire scheme, the provision as to the legacy cannot be retained without defeating the expressed and clear intent of the testator.

[3] The paper found attached to the will, and in the handwriting of the testator, which was offered in evidence by the plaintiff, was improperly admitted in evidence. It is not competent evidence for any purpose, and I have entirely disregarded its contents in making this decision.

My conclusions are that the $25,000 legacy to the plaintiff, as well as the trust provisions, are invalid, and that the entire estate must be distributed under the Intestacy Law, and that an interlocutory judg ment to that effect should be entered, which judgment should direct the executors to file their account, after which final judgment may be made by this court settling the account and directing the distribution of the estate.

Costs to all parties payable out of the estate. Requests to find may be submitted within 10 days.

(152 App. Div. 280.)

COSTELLO v. COSTELLO et al.

(Supreme Court, Appellate Division, Fourth Department. July 9, 1912.) TRUSTS (§ 331*)—ACCOUNTING-CONCLUSIVENESS OF SURROGATE'S DECREE.

Testator bequeathed one-half of the residue of his estate to trustees, to pay the income to his son J., for life, and at his death to divide the corpus among J.'s children. Nearly all testator's property consisted of his interest in various tanneries. In 1891 a petition was filed for an accounting, J.'s children being represented by a guardian, in which a decree was made settling the account and fixing the amount of the residuary estate. The next year a combination of all the tanning interests was projected, to avoid competing with a powerful trust, and the trustees, being unable to accept payment in the stock of the consolidated corporation, sold the trust interest to J. for an amount which was very nearly the value of the trust estate as fixed by the surrogate's decree. J. transferred such interest to the consolidation, receiving preferred stock for the value thereof, and an equal amount of common stock representing good will. Four years after the sale an accounting was had before the surrogate, and a decree entered settling the accounts, and the trustees turned over the balance found due to a substituted trustee and were discharged. Held that, in the absence of proof of fraud, the surrogate's decree constituted a bar to a subsequent suit to compel a further accounting by such trustees on proof that the stock received by J. subsequently became far more valuable than the value of the trust estate as fixed by the surrogate.

[Ed. Note. For other cases, see Trusts, Cent. Dig. § 494; Dec. Dig. § 331.*]

Spring, J., dissenting.

Appeal from Equity Term, Erie County.

Action by Clarence E. Costello against Alfred Costello and others. Judgment of dismissal, from which plaintiff and certain defendants appeal. Affirmed on the opinion of Clinton, Referee, which is as follows:

Patrick H. Costello died December 17, 1890, leaving a last will and testament in and by which, among other things, he gave one-half of his residuary estate to Alfred Costello and Patrick C. Costello, in trust to pay the rents and profits to his son John H. Costello during his life, and at his death to divide the funds amongst such children of John H. Costello who might survive him. He appointed Alfred Costello, Patrick C. Costello, and John H. Costello executors. Almost the entire property of the testator consisted of his interest in various partnerships in which he and the persons named as executors were interested. One of the partnerships, Alfred Costello & Co., was engaged in tanning hides, which were bought and when tanned sold by the principal one of the other partnerships, P. C. Costello & Co. By the terms of the will the executors were permitted, without liability on their part, to allow the testator's interest to remain in the partnerships, and this they did. The will was admitted to probate in Oneida county, and Alfred Costello and Patrick C. Costello qualified and entered upon the discharge of their duties as executors. In September, 1891, on the petition of the lastnamed executors, an accounting was had before the surrogate of that county; the proceedings being in all respects regular and all parties being duly cited, the infants, children of John H. Costello, being represented by a guardian who made certain objections to the account as filed by the executors. Full proofs were given before the surrogate, and in July, 1892, a decree was made by him settling the account and fixing the amount of the residuary estate. In 1893 a combination of all the tanning interests within a very large dis*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes