John M. Knox, Executor, etc., Respondent, v. William W. Jones, Respondent, and Georgiana Onativia et al., Appellants

John M. Knox, Executor, etc., Respondent, v. William W. Jones, Respondent, and Georgiana Onativia et al., Appellants. Whether a trust created by a will, as to realty situated in another State, is valid or not, can only be determined by the courts of that State. Although real and personal property aré given by the same clause of á will and upon the same trust, they are severable, and the validity of one does not depend upon that of the other. And where the testator was domiciled in this State at the time of his decease, the validity of the bequests of personal property depends upon the laws of this State. Where personal property is bequeathed to an executor in trust, to receive and pay over the income to the cestui que trust, the latter acquires an equity under the will, but no legal estate in the property itself. Such a trust is not within the class of passive trusts condemned by the statute. The executor and trustee is not the absolute owner, but holds upon special trust, and if the trusts may in any event suspend the ownership for a longer period than during the continuance of two lives in being at the' time of the death of the testator, the disposition is void. A void trust, which is separable from other valid trusts, and is not an essential part of the general scheme, may be cut off, but where the trust is an entirety it cannot be sustained in part and avoided in part. J., by his last will, bequeathed his personalty to his executor, in trust, to pay the income to W. B. J. during his life; upon his death, the income to be divided equally and paid to O. and GK during their lives, and upon the death of both, the whole estate to pass to the child or children of G-.; if Q-. die without issue, then to the trustees of Columbia College. Held, that by the terms of the will there was no vested estate in remainder until the death of the three cestuis que trust, and that the bequest was therefore void. (Argued January 18, 1872; decided February 6, 1872.) Appeal from judgment of the General Term of the Supreme Oourt in the first judicial department, modifying a judgment of special term. The action was brought by the executor to obtain construction of the following will: “ In the name of God, Amen. I, Alfred Goldsborough Jones, of the city of New York, counselor-at-law, do make, publish and declare this to be my last will and testament. Fi/rst. I do appoint my friend, John M. Knox, the executor of this my will. Second. I do devise to my sister, Catharine Griffing, wife of Frederic Griffing, the sum of $1,000; to my sister, Georgiana, wife of J. V. Onativia, the sum of $1,000; to my friend, Catalina, wife of T. Bailey Myers, $500; and to my friend, Ellis Potter, $500. Third. All the rest, residue and remainder of my estate, of every kind whatsoever, I do devise unto my said executor, in trust, the whole income of which shall be paid to my brother, William B. Jones, during his life. Upon the death of my said brother, the said income shall be divided equally and paid to my said sisters, Catharine and Georgiana, during their lives; and in case of the death of either of them, the whole income shall be paid to -the survi vor; and upon the death of both of my said sisters, the whole estate shall then pass to the child or children of my sister, Georgiana, to them and their heirs forever. In case my said sister, Georgiana, shall die without leaving issue, then do I x/ devise the whole residue of my estate to the trustees of Columbia College in the city of Hew York. It is my will that such sums of money as may become due under this my will to my sisters, Catharine and Georgiana, shall be paid to them, individually, free from the control of either of the husbands of my said sisters. In witness, whereof, I have hereunto set my hand and seal, this twenty-ninth day of August, in the year one thousand eight hundred and sixty-four (1864). A. GOLDSBOROUGH JOHES. (l.s.) ” Alfred G. Jones died on the 12th day of April, 1868, unmarried and without issue. He was a resident of the State v of Hew York at the time of his death, and owned considerable personal estate here, besides certain real estate in California. He left him surviving a brother, William B. Jones, and two sisters, Catharine Griffing and Georgiana Onativia, being the same persons named in the will. Both sisters are married and have issue. The brother is unmarried. These three parties are the sole heirs-at-law of Alfred G. Jones. The executor brought this action to obtain the ruling of this court as to the rights of the various parties interested under the will. The action was tried at Special Term on the 21st day of April, 1869, and a decision made affirming the validity of said will, on the ground that the life estates of William B. Jones, Catharine Gfriffing and Georgiana Onativia did not constitute three lives in being. An appeal to the General Term was taken from this judgment by the present appellants and their brother, the respondent, William B. Jones. This appeal was argued on the 9th day of November, 1870, and the said judgment was modified by the General Term, which adjudged that the trust contained in said will is a good and valid trust for and during the life of William B. Jones in the said will mentioned, and during the life of either of the sisters of the said Alfred G. Jones, named in the said will, who shall die first; after the death of said William B. Jones, if either of the sisters of the said testator shall survive the said William B. Jones, and that upon the determination of said lives the said trust cease, and the next, of kin and heirs-at-law of the said testator are entitled to the principal of the said residuary estate after the payment of the debts and specific legacies, in the same manner as if the said Alfred G. Jones had died intestate. On this decision judgment was entered on the 10th day of February, 1871, that the plaintiff do pay over the income of the residuary estate to the said William B. Jones during his life, and that, upon the death of the said William B. Jones, he pay one-half of the said income to Georgiana Onativia, and the other half to. Catharine Griffing, the sisters of the testator, in case they both survive the said William B. Jones, during the life of the said sister so surviving who shall die first, after the death of said William B. Jones; and that, upon the death of the said sister so first dying after the death of the said William B. Jones, he divide and distribute the said residuary estate to and among the persons who, at the time of the death of said testator, would have been entitled to receive the same in case the said Alfred G. Jones had died intestate; and that, in case only one of the said sisters of the said testator shall survive the said-William B. Jones, the said executor and trustee pay the whole income of the said residuary estate to the said sister so surviving, during her life, and that after her death he divide and distribute the said residuary estate to and among the persons and in the manner hereinbefore directed; and that, in case neither of the said sisters of the said testator survive the said William B. Jones, then, upon the death of the said William B. Jones, the said executor and trustee divide and distribute the said residuary estate to and among the persons and in the manner hereinbefore directed. From this judgment the two sisters and the infant children of Mrs. Onativia appeal to this court. J. Pyne for adult appellants. A devise of real estate, in trust, to receive the rents and profits, and to apply them to the use of more than two persons for life, and to the survivors, is void. (Coster v. Lorillard, 14 Wend., 265; Hone v. Van Schaick, 7 Paige, 221; Van Vechten v. Van Vechten, 8 id., 104; Maurice v. Graham, 8 id., 483.) The beneficiaries of this estate do not take successive legal estates, but naked equities ; and, if the trust is void, the equities fail. (Amory v. Lord, 5 Seld. [9 N. Y.], 403; Boynton v. Hoyt, 1 Denio, 53; Beekman v. Benson, 9 Smith [23 N. Y.], 316 ; Kane v. Gott, 24 Wend., 641; Yates v. Yates, 9 Barb., 344; Tucker v. Tucker, 1 Seld. [5 N. Y.], 408; Hawley v. James, 16 Wend., 61; Thompson v. Clendenning, 1 Sandf. Ch., 387; McSorley v. Wilson, 4 id., 524; Craig v. Hone, 2 Edw. V. Ch., 561; Brown v. Evans, 34 Barb., 594; Van Vechten v. Van Vechten, 8 Paige, 104; Peysons v. Snook, 40 Barb., 144.) Remainders limited upon a limitation which suspend the power of alienation for more than two lives in being at the death of the testators are void. (De Banante v. Gott, 6 Barb., 492; McSorley v. Wilson, 4 Sandf. Ch., 324; Hone v. Van Schaick, 20 Wend., 564; Wood v. Wood, 5 Paige, 596.) Any future estate is void in its creation which may, in any event, suspend the absolute power of alienation, exceeding two lives in being at the death of the testator. (Gott v. Cook, 7 Paige, 521, 539, 540; Hawley v. James, 16 Wend., 61; Schellter v. Smith, 41 N. Y. [2 Hand], 328, 335; Vail v. Vail, 7 Barb., 241.) A bequest of an interest in the income of personal property is a limitation of a future interest, within the meaning of the Revised Statutes. (Hone v. Van Schaick, 7 Paige, 233; Gott v. Cook, 7 Paige, 523.) The bequest is void, as it suspends the absolute ownership of the personalty for three lives. (Banks v. Phelan, 4 Barb., 80; Westerfield v. Westerfield, 1 Bradf., 137; Gott v. Cook, 7 Paige, 523; Schellter v. Smith, 41 N. Y., 335.) Where the court cannot execute the whole will, or some separate and independent intent, it should be declared void. (Coster v. Lorillard, 14 Wend., 349; Rort v. Stuyvesant, 18 id., 257, 317; Arnold v. Gilbert, 3 Sandf. Ch., 531; McSorley v. Wilson, 4 Sandf., 525; Hawley v. James, 16 Wend., 213, 250-252; Hone v. Van Schaick, 7 Paige, 222-233.) The trust in the will is invalid. (Jones v. Babcock, 15 Barb., 144; Hawley v. James, 16 Wend., 64; Gott v. Cook, 7 Paige, 539; Boynton v. Hoyt, 1 Denio, 57; 2 R. S., chap. 1, tit. 2, § 45.) E. Logan for guardian ad litem of infant appellants. As there are no lands in this State, the will relates only to personal property. (3 R. S., 5th ed., 75.) The trust therein is valid. (3 R. S., 5th ed., 18.) The law favors and upholds wills. (Oxley v. Lane, 35 N. Y., 340.) The latter part of a will is to be regarded as the testator’s latest intention; if the prior part contains repugnant provisions, the latest shall govern. (Jarman on Wills, 4th Am. ed., 404; Doe on the several demises of Leicester v. Briggs, 2 Taunt., 109-112; Sherratt v. Bentley, 2 M. & K., 149; Homer v. Shelton, ex’r, 2 Metc., 202.) The devise to the sisters being void, the remainder, created and given to the children, at once vests. (Cooke v. The Stationers' Co., 3 M. & K., 262; Gore v. Stevens, 1 Dana, 206; Jarman on Wills, 4th Am. ed., pp. 474, 477, marginal 513; also page 527, etc., chap. 21; also page 536, marginal 600, 601; Yeaton v. Roberts, 8 Forster [28 N. H.], 459 ; Hayden v. Stoughton, 5 Pick., 528, etc.) The whole trust is not void, but only in such parts as contravene the rules of law. (Harrison v. Harrison, 36 N. Y., 543, and the cases there cited; Lang v. Ropke, 5 Sandf., 71; Kane v. Gott, 24 Wend., 641, 666; Parks v. Parks, 9 Paige, 107-117; De Kay v. Irving, 5 Denio, 646; Lang v. Ropke, 5 Sandf. S. C., 363-371; Williams v. Williams, 4 Seld., 525-539; Savage v. Burnham, 17 N. Y., 561, 562; Post v. Hover, 33 N. Y., 593; Everett v. Everett, 29 N. Y., 99.) J. M. Mason for respondents. If trusts are void the legatees must make their election, and if they take as distributees, they must forego the specific legacies, and throw them into the general estate. (Hawley v. James, 16 Wend., 142; Persons v. Snook, 40 Barb., 145.) [MAJORITY — Allen, J.] Allen, J. This court has only to do with the bequest of the personalty. The real property devised by the testator is situated in California, and whether the devise is valid depends upon the laws of that State. Title to real estate can only be acquired or lost agreeably to the law of the place where the same is situated. (Abell v. Douglass, 4 Denio, 305.) The tenure, mode of enjoyment, transfer and descent of real property is regulated by the lex hoi rei sitae. (2 Kent Com., 429; Story Confl. Laws, §§ 465, 474.) Whether, therefore, the trust created by the will as to the realty is valid, or whether it is void as in conflict with the laws or policy of the State of California, can only be determined by the courts of that State. Although the real and personal property are given by the same clause of the will, and upon the same trusts, they are severable, and the validity of one does not depend upon that of the other. One may be good by the lex hoi rei sitae, while the other is bad, by the lex domicilii, or vice versa but they are not necessarily brought into the same condemnation by reason of their connection with each other. The real and personal property are entirely distinct, and the trusts as to each can be well executed and effect given to the will of the testator, without reference to the other. The intent was to create a trust in all the property, real and personal, for the benefit of the three individuals named, for their lives, and can be well executed as to part, although it may fail as to another part of the property. The testator having been domiciled within this State at the time of his death, the validity of the bequests of the personalty depends upon the laws of this State. ( Wood v. Wood, 5 Paige, 596.) By the devise, if valid, the title to the personal property necessarily vested in the executor. It was given to him in trust, and no title or interest vested in the cestui que trust. They acquired equities under the will, but no legal estate in the property itself. (Amory v. Lord, 5 Seld., 403.) The devise was to the executor in trust, the whole income of the property devised to be paid to the brother William B. Jones, during his life, and upon his death to be divided equally and paid to the sisters Catharine and Georgiana, during their lives, and in ease of the death of either, the whole income to be paid to the survivor. It is not a passive trust, but a duty is devolved upon the trastee to receive and pay over the income as it accrues. This necessarily gives him the legal property in the personalty and a right to the possession of the same, and excludes the idea of successive estates in the corpus of the property in the brothers and sisters in the order named. The income was to he paid to them by the executor and trustee, and no other person is named or recognized as the devisee and donee of the property itself. The clear intent of the testator was to vest the title in the executor dining the continuance of the lives named, with limitation over at the death of the survivor. The executor was authorized by necessary implication arising from the duty imposed of paying over the income, to collect and receive the same, which takes the trust out of the class of passive trusts condemned by statute. (Boynton v. Hoyt, 1 Denio, 53.) The whole tenure of the will, as well as the particular devise, negatives all intent to give the corpus of the estate, or any part of it, to the persons entitled to the income for their respective lives in succession. The will then suspends the absolute ownership of the personal property, for a longer period than during the continuance of two lives, in being at the time of the death of the testator, and is void. (1 R. S., 773, § 1; Gott v. Cook, 7 Paige, 521.) The executor and trustee is not the absolute owner. He holds it upon a special trust, and there can be no absolute ownership, until after the death of the last eesfrwi que trust, and the title vests as a gift over after that event. It is true that it is possible, that by the death of one or both of the sisters, during the life of the brother, the absolute ownership may not actually be suspended beyond the time allowed by law, but this possibility will not sustain the will. If the suspension of absolute ownership will not, under all circumstances, that is, necessarily, terminate within the prescribed period, the disposition is void. (Schutter v. Smith, 41 N. Y., 328; Lewis on Perpetuities, 170.) By the terms of the will, the gift over cannot take effect until the death of three persons named as beneficiaries under the trust, all of whom were living at the death of the testator. The gift is to the executor in trust, to pay the brother the whole income during his life; at his death, pay one-half to each of the two sisters during their joint lives, and upon the death of either, to pay the whole to the survivor for her life, and then to the child or children of the sister Georgiana, or if she shall have died without having issue, then to Columbia College. The three lives must terminate, not only as a condition precedent to the taking effect of the gift over, but before it can be known who will be entitled ultimately to take. Georgiana may die before Catharine, leaving issue capable of taking, if they shall be living at the death of Catharine, but that they will survive Catharine, and actually take, to the exclusion of Columbia College, cannot be known until the death of both sisters, for it is “ then,” upon the happening of that event, the estate is to pass “ to the child or children of Georgiana, or to Columbia College, as the one or the other shall be entitled.” The ultimate limitation over is too remote, being suspended until the actual termination of three lives in being. ( Wood v. Wood ; Amory v. Lord ; Schutter v. Smith ; Gott v. Cook, supra; Van Vechten v. Van Vechten, 8 Paige, 104.) The trust created was an entirety, and cannot be avoided in part and sustained in part. The trust is to receive and pay over the income for the three lives, to the brother for his life, and then to the two sisters, with cross limitations over as between them, and the vesting of the estate in those to whom it is ultimately limited and given cannot be accelerated, if for no other reason than that it cannot be known who will be ultimately entitled under the will, until the death of the last sister, for then, and then only, is the limitation over to take effect. A decree or judgment declaring the trust good for two lives, and determining the trust upon the death of the sister first dying, would not accelerate the vesting of the estate in those ultimately entitled. The testator has not given, as between the sisters, successive estates or equitable interests; they take simultaneously, with cross remainders, and the case is not within the rule which allows courts applying the doctrine of cy pres to give effect to parts of a will, while avoiding other parts of the same instrument. A void trust, which is separable from other valid trusts, may be cut off when the trust thus defeated is independent of the other dispositions of the will, and subordinate to them, and not an essential part to the general scheme. This was held in Manice v. Manice (43 N. Y., 303) after a careful consideration of the authorities, and the rule thus limited and restricted was adopted as a rule just in itself, and fairly deducible from all the adjudications. Here there is no separate trust which is void and which can be separated from the others. The one trust is void, because by it the absolute ownership of the property is suspended for more than two lives grouped together, not only as eestuis que trust, but as indicating the limit of the trust as to time, and the consequent suspension of ownership. If it were allowable to sever lives thus grouped, dropping all that might be in excess of two, and to cut off one or more of several eestuis que trust, all of whom are provided for in a single clause of the will, and, in pursuance of a single intent of the testator, all being embraced in a common purpose, all the trusts which have been adjudged void might have been sustained in part instead of being void in toto. The intent of the testator was to make provision for .his brother and sisters from the income of his estate during their lives, and the life of the survivor, and that the corpus of the estate should be inalienable until after the death of all, and to this end the property, real and personal, was devised to the executor in trust for the purposes named, and the will is so framed that there can be no vested estate in remainder in the personalty, no ownership under the limitation over until the death of the three cestuis que trust for life. The bequest of the personalty to the executor upon the trusts named must, therefore, be declared void, and that portion of the estate distributed to those entitled, as in case of intestacy. To the sisters who contest the will a legacy is given of $1,000 each. Their counsel upon the argument consented, in case the trust was held void, to relinquish their rights as legatees. It is doubtless a case in which they should elect between the provision made for them in the will, and their rights in opposition to the will. (Hawly v. James, 16 W. R., 142, and cases cited.) The judgment of the Supreme Court should be reversed, the bequest of the personal property declared to be void, and, after the payment of the debts and legacies, other than the legacies of Georgiana Onativia and Catharine Griffing, and other proper charges, the same should be divided equally between William B. Jones and Georgiana Onativia and Catharine Griffing, the distribution entitled under the statute of distributions, and the costs of the several parties to be adjusted by the Supreme Court, and paid from the fund by the executor before making distribution. Proceedings should be remitted to the Supreme Court for such further action as maybe necessary to give effect to the judgment of this court. All concur. Judgment accordingly.