In Re Estate of Fay

COOPER, P. J.

Appeal from decree of final distribution, and from an order denying appellants’ motion for a new trial.

The will of deceased was duly admitted to probate and bears date, “May twenty-fifth, eighteen hundred and fifty-nine.” It contains the following clause:

“I will all my separate property and all my share of the community property of every description, name and nature both real and personal, to my brother, David Fay, and my son, John Fay, in trust for the benefit of my three children, Luke Fay, Mary Montealegre and John Fay.

“The said David Fay and John Fay, or either of them, to hold and manage said property for the space of twenty-five years from this date; they shall keep the property in repair, pay all expenses, and divide the income from said property monthly or quarterly between my children, Luke, May and John, or their children, if they should have any; if either of my children should die without lawful children of their body, then the survivor shall inherit their share; should all of my children die before the expiration of this trust without lawful children it is my wish that my sister, Mary J. Scott, or her children should inherit or have all of my share of the estate, David Fay or my son, John Fay, will act or manage the property without giving bonds.”

[190]

The court below found that Mary Montealgre (the only daughter of said deceased) died without lineal descendants prior to the death of deceased; that the provisions of the will above quoted are invalid, and the trust thereby attempted to be created is void, for the reason that the absolute power of alienation of the property therein mentioned is thereby suspended for a longer period than during the continuance of the lives of persons in being at the creation of such limitation or condition, or at the death of said testator, capable of taking the same under said provisions, and for the reason that there were and are no persons in being by whom an absolute interest in possession can be conveyed; that the period of the said trust expired and ceased prior to the death of the testator, and that said trust clause is void for uncertainty.

The deceased left surviving him his wife and two sons, Luke Pay and John Pay, his only children. After the death of deceased Bridget M. Pay, his widow, and the mother of Luke Pay and John Pay, conveyed all her title and interest in the estate to John Pay, and such conveyance was made pending the administration and prior to the decree of distribution. The property was distributed to the two sons,. Luke Pay and John Pay.