MARIE WADE ORR, as Executrix, etc., of JOSEPH K. ORR, Deceased, and FRANK ORR, Appellants,
HENRY S. ORR and MARY LOUISE ORR, as Executors, etc., of JOHN C. ORR, Deceased, and Others, Respondents.
APPEAL by the plaintiffs, Marie Wade Orr, as executrix, etc., and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 14th day of December, 1910, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.
Morgan J. O'Brien of counsel [George B. Hayes, attorney], for the appellants.
Alfred B. Cruikshank, for the respondents.
On December 15, 1906, John C. Orr died, leaving a last will and testament executed November 27, 1906. He left him surviving his widow, Amelia S. Orr, who died October 31, 1907, and six children, Henry S., born May 5, 1870; Mary Louise, born May 5, 1872; Frank, born May 19, 1879; Joseph K., born May 9, 1884; Frederica, born December 29, 1885, and John C., Jr., born August 1, 1893. Testator left real estate of upwards of $100,000 in value and personal property of upwards of $300,000 in value, situated within the State of New York. The will was admitted to probate January 21, 1907. Defendants Henry S. and Mary Louise were appointed executor, executrix and trustees. The provision in favor of Amelia S., the widow, was in lieu of dower and was accepted by her as such.
By the 3d paragraph of the will the testator bequeathed to his wife the use of his residence 122 East Seventy-second street, and the rents, income and profits thereof and the use of all his horses, carriages, wagons, harness, furniture, pictures,
books and plate for and during her natural life; 'and I further direct that upon the death of my said wife said real and personal property bequeathed in this paragraph fall into and form a part of my trust estate hereinafter disposed of, and that the same go to my trustees above named and their successors, as provided in the eighth paragraph of this will, and that the same be disposed of as provided by the ninth, tenth and eleventh paragraphs of this will.' By the 4th, 5th, 6th and 7th paragraphs he made certain specific bequests.
The 8th clause of the will provides as follows: 'I give, devise and bequeath all my property, real and personal, wherever situated, not otherwise disposed of by this will, unto my trustees or the survivors of them, in trust, however, to collect and receive the same and convert the same into cash, except as hereinafter stated, and in their discretion to invest and reinvest the proceeds from time to time upon the following trusts, namely: [A small trust for his sister during her lifetime which it is not necessary to consider.] Ninth. All the rest of said trust estate, being all my residuary estate is to be divided by my said trustees into six parts, shares or portions, one for each of my six children [naming them]. I direct my said trustees to set apart each of said portions separately for each of the beneficiaries, and to place the same at interest for their benefit and for the benefit of my said wife. And I direct my said trustees to pay over to my said wife, semi-annually, two-fifths of the net income or interest of each of said portions for and during the term of the natural life of my said wife, and during that time to pay the remaining three-fifths of said income, in each case, to such of my children as shall be of age and in the case of those who may not be of age to apply the said three-fifths income or interest, or as much thereof as may be necessary for that purpose, for and towards the maintenance, education and support of each one of them respectively. Tenth. Immediately upon the death of my said wife, I direct that the share or portion of my son, Henry S. Orr, and that of my daughter, Mary Louise Orr, thus set apart for him and her, be paid over to him and to her respectively, and that the shares and portions of each of my other children, Frank Orr, Frederica Orr, Joseph Orr and Jack
Orr be retained by said trustees or their successors, and that the whole of the net income arising from the share or portion of such of said four children as may be adults be paid over semi-annually to each of them respectively, and the net income of such as may be still minors or infants shall be applied by said trustees to his or her maintenance and support or as much thereof as may be necessary. And that upon the coming of age of each one of said minor children, he or she forthwith be paid semi-annually his share or portion of said income together with the interest upon the accumulations of unexpended or unapplied interest or income, if any. The principal of the share or portion of my son, Frank Orr, together with the accumulations of income, if any, is to be paid over to him by my said trustees when he reaches the age of thirty-five years; the principal of the share of my daughter Frederica Orr together with the accumulations of interest, if any, is to be paid over to her when she reaches the age of thirty years; the principal of the share or portion of my son Joseph Orr together with the accumulations of interest, if any, is to be paid over to him when he reaches the age of thirty-five years; the principal of the share or portion of my son Jack Orr together with the accumulations of interest, if any, is to be paid over to him when he shall reach the age of thirty years. Eleventh. * * * In case any of my children die after my decease and before reaching the age at which he or she shall be entitled to receive the principal as above stated, leaving no issue him or her surviving, then it is my will that the share or portion of the one so dying shall be apportioned among my surviving children equally, share and share alike, and that the trust share of any child not having reached the prescribed age be proportionately increased upon the same trusts as above stated, and that those who are not cestuis que trustent nor within the age limitations prescribed by this will receive in cash their shares so accruing to them respectively. Should any of my children die before my decease, or after my decease and before reaching the age at which he or she is entitled to receive the principal as above stated and leaving issue or descendants, then I direct that the share or portion of the one so dying go to the said issue or descendants, but that the same be held in trust
and administered by my said trustees during the respective minorities of the said issue, and be paid over to each of them at majority according to law.'
The court has found that the trusts provided for by the said will were set up by the said executors and trustees. This action was brought by Joseph K. Orr and Frank Orr, who by the terms of the will were not to receive the principal of their shares until they reached the age of thirty-five years, and none of the children have reached the age fixed for taking possession.
The complaint alleges that the provisions of the will unlawfully suspend the absolute power of alienation of such portions of the estate as are embraced therein, and that by said provisions accumulations of the income of personal property are directed to commence at the date of the death of the said testator, for the benefit of persons, not minors, and an accumulation of personal property for the benefit of John C. Orr, an infant, which is not to terminate at the expiration of his minority. Wherefore, plaintiffs ask for judgment that the said several devises and bequests embraced in said clauses of said will were on the death of said John C. Orr, and each of them was and is, illegal and void and of no effect; and that as to such property he died intestate and that the ...