In re Pross (245 A.D. 548, 1935)

Hagarty, J.

The question presented on this appeal is whether intestacy or only partial intestacy as to the residuary estate results from the elimination of secondary life estates and remainders from the will under construction in this proceeding.

The testatrix, Malky Lyons, died a widow, leaving her surviving four children, three of whom are sons, Nathaniel, Lewis and Joseph, and one a daughter, Annie L. Spiegel. By her will she disposed of the remainder of her estate, of the approximate value of $100,000, by giving it to her trustees, directing them to divide it into four equal parts, each of such parts representing a child or the child’s issue.

The scheme of distribution is to be found in the residuary clause, constituting the fifth paragraph of the will, in which the testatrix, after leaving a one-fourth share outright to her son Nathaniel, or, in the event that he should not survive her, to his descendants, per stirpes, then set up three trusts, each disposing of one of the three remaining one-quarter shares. Two of these trusts, namely, those providing for Lewis and his children and for Annie and her children, are manifestly violative of the rules against perpetuities (Real Prop. Law, § 42; Pers. Prop. Law, § 11). As these last-mentioned provisions of the will are identical, we may confine our consideration to the trust provision for Lewis and his children and the disposition of the remainder.

Lewis is to be paid the income of his share for life and, upon his death, a division is to be made into as many shares as he shall leave children surviving and children who have predeceased him leaving descendants. While the descendants of the children who may have predeceased Lewis are then to receive their respective shares outright, the surviving children do not take absolutely, but they in turn are given life interests with remainder over to their respective descendants, per stirpes.

The learned surrogate has properly held, we think, that the secondary life estates offend against the statutes (supra), for the reason that the trusts are measured possibly by lives that are not in being at the time of the death of the testatrix. (Matter of Horner, 237 N. Y. 489, 501, 502.) These secondary life estates, however, may not be eliminated and the remainders accelerated, since the remainders go to the descendants