HARLOW W. BAILEY, Respondent, Appellant,
THE BUFFALO LOAN, TRUST AND SAFE DEPOSIT COMPANY and Others, Appellants, Respondents, Impleaded with ANTOINETTE B. STRONG and Others.
APPEAL by the defendants, The Buffalo Loan, Trust and Safe Deposit Company and others, from a judgment of the Supreme Court in part in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 15th day of January, 1912, upon the decision of the court rendered after a trial at the Erie Special Term.
Also an appeal by the plaintiff, Harlow W. Bailey, from so much of said judgment as awards to the defendant, The Buffalo Loan, Trust and Safe Deposit Company, a certain sum by way of commissions, and also from so much of said judgment as allows costs to certain of the defendants; also from that part of the judgment which allows to the plaintiff and adjudges that the defendant trust company pay to him only five per cent interest from July 1, 1911, on the sum adjudged by the said judgment to be paid to him by the defendant trust company, instead of six per cent.
The controversy is over a certain clause of the will of Daniel E. Bailey, late of the city of Buffalo, Erie county, deceased, which is attacked upon the ground that it violates the statute against perpetuities.
The will, after directing the payment of the testator's debts and making provision for his wife and sister, provides by the clause in question as follows:
' Fourth. I direct that bonds of the Toledo Consolidated Street Railroad to the amount of Sixty Thousand Dollars be deposited in trust with the Buffalo Loan, Trust and Safe Deposit Company of Buffalo, N.Y. , as trustees, and in case at the time of my decease, I should not be possessed of the above bonds, then the same amount in cash or other good securities be placed in the hands of said Buffalo Loan, Trust and Safe
Deposit Company, as a trust fund, the income of which, after paying the expenses of such trust, I direct to be paid as follows: Fifty dollars per month to my brother, Alanson C. Bailey, of Toledo, Ohio, during his natural life; Thirty dollars per month to Mrs. Mary A. Swain, of Buffalo, N.Y. , during her natural life, and the remainder of said income to my son, Harlow W. Bailey, during his natural life, or until the trust shall terminate, as hereinafter stated. And in case of the death of either my said brother, Alanson C. Bailey, or Mrs. Mary A. Swain, then their proportions of said income shall be paid to my said son Harlow W. Bailey, and in case of the death of my said son Harlow W. Bailey, then I direct that his share of said income shall be added to the principal sum of said trust. The principal of said trust fund of Sixty Thousand Dollars, I direct to be held in trust by the said Buffalo Loan, Trust and Safe Deposit Company for the children of my said son, Harlow W. Bailey, and I direct that each child of my said son Harlow W. Bailey, shall have and receive his or her proportion of said trust fund upon his or her arriving at the age of twenty-one years, and then to take such proportion of said principal sum as the number of children then living and minors, shall bear towards the principal sum then undivided, so that if there be three children living when the oldest becomes twenty-one years of age, such oldest child shall receive one-third of said principal sum of said trust fund, and if another child shall be born after the oldest child has become twenty-one years of age, and shall have received his or her proportion of said trust fund, then the second child shall, upon becoming twenty-one years of age, have and receive one-third of the remaining principal of said trust fund.
'And in case there be no children of my said son, Harlow W. Bailey, living at the time of my decease, or in case the children then living shall die before arriving at the age of twenty-one years, then I direct that the trust hereby created shall continue for twenty-five years from the date of this will, and if at that time there be no children of my said son, Harlow W. Bailey, living, I direct that the trust hereby created shall cease and be determined, and I hereby direct that the principal of said trust fund shall then be paid to my said son,
Harlow W. Bailey, and the same shall be his property absolutely, and forever, and if at that time my said son Harlow W. Bailey shall not be living, then I direct that the principal of said trust fund shall be divided and paid over, share and share alike to the heirs of my said sister, Caroline E. Blair, of Madison, Ohio. But if there be a child of my said son, Harlow W. Bailey living twenty-five years from the date of this will, though born after my decease, then said trust hereby created shall continue for the benefit of such child.'
Then follows the general residuary clause under which the plaintiff claims, as follows: 'All the rest, residue and remainder of my estate, whether real or personal, I give, devise and bequeath to my said son Harlow W. Bailey.'
The will appoints the plaintiff and the defendant trust company executors of the will. It is dated February 16, 1894, and was probated March 22, 1894, the testator having died March 3, 1894. The plaintiff and the trust company qualified as executors and acted as such until on or about January 23, 1899, when they were discharged by a decree of the Surrogate's Court of Erie county, the plaintiff in conjunction with the trust company having theretofore set aside and turned over to the trust company the $60,000 in bonds referred to in the will, in accordance with the provisions of the 4th clause, and the income has been distributed by the trust company without objection, as therein provided, until the validity of the clause in question was challenged by the commencement of this action, in May, 1911.
The judgment declares that the clause in question attempts to suspend the absolute ownership and power of absolute alienation of the personal property therein referred to as a trust fund for a period beyond the determination of two lives in being at the death of the testator, and is illegal and void; and adjudges the said fund to be the property of the plaintiff, the residuary legatee under said will, and directs ...