Margaret Belinda Wilber, George I. Wilber and David Forrest Wilber, Individually and as Executors, etc., of David Wilber, Deceased, Appellants, v. Edith M. Wilber, an Infant, by James H. Crandall, her Guardian ad Litem, Respondent, Impleaded with Myra Wilber and Others

Margaret Belinda Wilber, George I. Wilber and David Forrest Wilber, Individually and as Executors, etc., of David Wilber, Deceased, Appellants, v. Edith M. Wilber, an Infant, by James H. Crandall, her Guardian ad Litem, Respondent, Impleaded with Myra Wilber and Others. Will—gift of theme of property for a term of yeiM's and of the remainder to grandchildren, where the testator leaves but two sons — there is no illegal suspension of the power of alienation. A testator by the 16th clause of his will gave and devised the use, for fifteen years after his death, of all his real estate and farms to his wife, in lieu of dower, and to his two sons, with the use of all the stock and farming equipments thereon, on condition that the personal property should be- kept in' as good condition and of the same value as at the time of his death, with right of survivorship. J The 17th clause provided as follows: “ Seventeenth. I give, devise and bequeath all my real estate and farms, * * * and all the personal property upon or belonging to said farms, which is more particularly mentioned in the last preceding sixteenth item, subdivision or devise or bequést of this my last will- to my grandchildren, to be equally ' divided between them, share and share alike, subject only to the fifteen years’ use of the same, heretofore provided for, intending hereby to grant and devise to my grandchild or children all the land and personal property mentioned, referred to or intended in the preceding sixteenth subdivision of this my last will.” / Held, that whether the fee vested absolutely in the one grandchild who was living at the death of the testator, or vested subject to open and let in after-born grandchildren, thére was no unlawful suspension of the power of alienation, as under the latter construction the grandchildren who would be entitled to take must be ascertained at the death of the testator's two sons, who were his sole surviving children, and there would then be persons in being who could convey a complete title; That the conditions contained in the 16th clause, requiring the legatees to keep the personal property in good condition, did not invalidate the bequest to the grandchildren. Appeal by the • plaintiffs, Margaret Belinda Wilber and others, individually and as executors, etc., of David Wilber, deceased, from a judgment of the Supreme Court in favor of the defendants, Edith M. Wilber and Myra Wilber, entered in the- office of the clerk of thé county of Otsego on the 18th day of February, 1899, upon the decision of the court rendered after a trial at the Otsego Special Term excepting the 4th provision thereof. The action was brought for the construction of certain provisions of the will of David Wilber, who died on or about the 1st of April, 1890, leaving a will bearing date March 25, 1890. His only heirs and next of kin were his two sons, the plaintiffs, George I. Wilber and David Forrest Wilber, and they were the residuary legatees and devisees in the will. The defendant Edith M. Wilber is the daughter of the plaintiff David F. Wilber, and was about eight years old at the time of the death of the testator, and is the only grandchild the testator ever had. The son George I. was married in 1872, but has had no children. The other son was married in 1881, and said Edith is his only child. The clauses of the will that are in controversy upon the appeal are the 16th and 17th, which are as follows : Sixteenth. I give, devise and bequeath to my wife, Margaret Belinda Wilber, also in lieu of dower, and my two sons, George I. Wilber and David Forrest Wilber, the use for fifteen years after my death of all my real estate and farms, which is situate in the towns of Milford, Morris, Middlefield and Maryland, in the county of Otsego and State of Rew York, and also giving and bequeathing the use of all the teams, harnesses, horses, cows, young cattle, sheep and all farming and dairying tools and utensils on or belonging to any and all of the farms in the towns above named: But as a condition all of said farms and all of said personal property' are to be maintained and kept in as good order and condition as they are in at the time of my death, meaning by this that the personal property left on said farms at the end of the fifteen years shall be as valuable as it is at the present time, and the real estate shall be in as good asíate' of cultivation and capable of as much production, and the fences and buildings thereon in as good a state of repair as they now are, so that my grandchild or children mentioned in the next or seventeenth devise or bequest or subdivision, shall have and receive as much personal property and of as much value as the personal property herein mentioned is worth at the time of my death. In case of the death of any of the persons above named, then the two surviving shall take the use of the property herein intended, share and share alike, to the end of the fifteen years’ term above mentioned, and in case of the death of two of the persons above named then the survivor shall take the entire use of the farms and property to the end of the term aforesaid, intending to give one-third of the produce and profits of said farms and real estate and stock, etc., to each of the persons above named, to the end of the fifteen years, or so much of said term as they all live. “ Seventeenth. I give, devise and bequeath all my real estate and farms in the towns of Milford, Morris, Middlefield and Maryland, in the county of Otsego, R. Y., and all the personal property upon or belonging to said farms, which is more particularly mentioned in the last preceding sixteenth item, subdivision or devise or bequest of this my last will to my grandchildren, to be equally divided between them, share and share alike, subject only to the fifteen years’ use of the same, heretofore provided for, intending hereby to grant and devise to my grandchild or children all the land and personal property mentioned, referred to or intended in the preceding sixteenth subdivision of this my last will.” The plaintiffs have had the use of the property, mentioned in said clauses according to the terms and by virtue of the will since the death of the testator. J. Lee Tucker, Albert C. Tennant and A. Raymond Gibbs, for the appellants. Hobart Krum, for the respondent. [MAJORITY — Merwin, J.:] Merwin, J.: The contention of the appellants is that the provisions of the 16th and 17th clauses of the will of David Wilber operate as an unlawful suspension of the power of alienatipn of the property referred to in those clauses, and that, therefore, the ownership of such property passes to the appellants, George I. Wilber and David E. Wilber, who are the sole residuary devisees and legatees named in the will, and are also the sole heirs at law and next of kin of the testator. If, under the provisions of the 17th clause, the defendant Edith M. Wilber, the only grandchild of the testator living at the time of his death, became vested at that time with the entire title, subject •only to the provisions of the 16th clause, then the entire ownership was in persons in being, there was no trust, and there was no suspension of the power of alienation. (Williams v. Montgomery, 148 N. Y. 519; Sawyer v. Cubby, 146 id. 192.) There is no doubt that under the present and direct devise and bequest in the 17th clause, the entire title vested at the death of the testator in the grandchild. Such was the meaning of the words used and such manifestly was the intention of the testator. (Tucker v. Bishop, 16 N. Y. 404; Matter of Seaman, 147 id. 74.) The further question, however, arises whether the grandchild took an absolute fee subject only to the estate for years given by the 16th •clause, or whether she took the fee subject, also, to open and let in after-born grandchildren to share with her the estate. The devise and bequest is “ to my grandchildren, to be equally divided between them, share and share alike, subject only to the fifteen years’ use of the same heretofore provided for.” It is argued by the respondent that the class named will be ascertained and determined as of the ■death of the testator, in the absence of a different intention (Campbell v. Rawdon, 18 N. Y. 412; Matter of Brown, 154 id. 314), and that there is here not only no different intention, but an intention that an absolute title should vest at his’death subject only to the fifteen years” use. If the title in the living grandchild was subject to open and let in after-born grandchildren, then the power of alienation would by possibility be suspended. It would be uncertain, until the death of the two sons, whether there would be other grandchildren. The suspension, however, caused by such uncertainty would in no event, in contemplation of law (Tucker v. Bishop, supra; Smith v. Edwards, 88 N. Y. 92, 110; 4 R. S. [8th ed.] 2434, § 30), continue for a longer period than the lives of the two sons. At their death the members of the class of grandchildren would necessarily become fixed and determined, and persons would be in being who could give a complete title. It is no objection that a remainder is limited in favor ox persons not in being when the limitation is created, provided that the contingency upon which the final vesting depends must happen, and the persons entitled to take be ascertained within the permitted period. (Hillen v. Iselin, 144 N. Y. 365, 378; Purdy v. Hayt, 92 id. 446.) So that,, whether the fee is to oe deemed to oe vested absolutely in the one grandchild at the death of the testator, or to be vested subject to letting in other possible grandchildren, there is in either event no unlawful suspension. There was nothing to prevent the owners of the estate for years from conveying their interest at any time, and the ownership of the fee was not illegally suspended. The conclusion, therefore, of the trial court, that there was no unlawful suspension of the power of alienation, was correct. Ror is it apparent how the conditions in the 16th clause, requiring the legatees therein named to keep the personal property good, invalidates the bequest to the grandchildren. The latter take subject to the rights of the former, and are entitled, for aught that appears, to the benefit of such conditions as are imposed for their benefit. There was in substance" a lease for fifteen years with reasonable conditions. The question of costs was in the discretion of the trial court. The action was practically for the benefit of the plaintiffs George I. and David F. Wilber. They failed to sustain their contention, and cannot justly complain as to the costs. All concurred; Landon, J., in result. Judgment affirmed, with costs.