Christian Thieler, Appellant, v. Mary Rayner and Others, Respondents, Impleaded with Christian Thieler, as Executor, etc., of Theodore Thieler, Deceased, Defendant

Christian Thieler, Appellant, v. Mary Rayner and Others, Respondents, Impleaded with Christian Thieler, as Executor, etc., of Theodore Thieler, Deceased, Defendant. Second Department November 16, 1906. Will power of alienation not suspended. A devise of lands and personal property to certain persons named for life, share and share alike, and to their survivor or survivors, remainder at' their death to certain benevolent societies, does not suspend the power of alienation, for the ■ life tenants and remaindermen by joining in a deed could convey ah absolute title in fee. ' Appeal by the plaintiff, Christian Thieler, from a judgment of the Supreme Court in favor of the defendants, Mary Bayner and others, entered in the office of the clerk of the county of Kings on the 11th day of January, 1906, upon the decision of the court, rendered after a trial at the Kings County Special Term, adjudging the 5tli and 6th clauses of the last will and testament of Theodore Thieler, deceased, to be valid and effective. The clauses of the will in question are as follows: “ 5th. I give and devise to my affianced, Mary A. Choisy, of Fort Lee, FT. J., and to my brother, Christian Thieler, and to Mary Bayner, the only daughter of the said Mary A. Choisy, all of my real and personal estate (not hereinbefore disposed of by me) in equal parts, share and share alike, during their natural lives and to their survivor or survivors, subject to all of the provisions herein-before stated. “ 6th. At and after the death of the said Mary A. Choisy, Christian Thieler and Mary.Bayner, I give and devise all the rest, residue and remainder of'my real and personal estate to the Trustees of the Hall and Asylum Fund and to The German Masonic Temple Association (of Freemasons) and to the American Society for the Prevention of Cruelty to Animals in equal parts forever (all of Hew York City, H. Y.).” Edward G. Nelson, for the appellant. Herbert L. Fordham [Townsend Scudder, Gotthardt A. Litthauer and J. Mayhew Wainwright with him on the brief], for the respondents. [MAJORITY — Woodward, J.:] Woodward, J.: It distinctly appears by the terms of the will itself, the validity of which is attacked in this case, that a deed executed by the life tenants and the remaindermen would convey an absolute title in fee. Under these circumstances there is no restraint upon alienation or violation of the rule against perpetuities within the express definition of the statute. . The judgment should be affirmed, with costs: Hirschberg, P. J., Gaynor, Rich and Miller, JJ., concurred. Judgment affirmed, with costs.