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Statement of case.

59 N. Y. 426; Harrison v. Harrison, 36 id. 544; Savage v. Burnham, 17 id. 561; Oxley v. Lane, 35 id. 340; Van Veghten v. Van Veghten, 8 Paige, 217, 128; Hoxton v. Corse, 2 Barb. Ch. 519; Darling v. Rogers, 22 Wend. 483; Parks v. Parks, 9 Paige, 117.)

James M. Varnum for appellants. The trusts for the benefit of the testator's father and Mrs. Charlotte Varian, and for the testator's brother and sisters are valid. (Kane v. Gott, 24 Wend. 641; Savage v. Burnham, 17 N. Y. 561; 3 R. S. [Bank's Bros. 7th ed.] 2256.) The absolute ownership of personal property is not suspended by the will for more than two lives in being at the death of the testator. (Moore v. Hegeman, 72 N. Y. 376, 383; Everitt v. Everitt, 29 id. 39; Purdy v. Hayt, 92 id. 447; Monarque v. Monarque, 80 id. 320.) The courts lean in favor of the preservation of all such valid parts of a will as can be separated from those that are invalid, without defeating the general intent of the testator. (30 Barb. 322; Darling v. Rogers, 22 Wend. 483; De Peyster v. Glendening, 8 Paige, 265; Haxton v. Coose, 2 Barb. Ch. 506; Van Vechten v. Same, 8 Paige, 120.) The general intent of a testator, apparent upon a will, will be carried into effect, if practicable, although his particular intent cannot prevail. (Jackson v. Brown, 13 Wend. 437; 2 Jarm. on Wills, 743, 745.) Where an estate is vested in trustees upon several independent trusts, one or more of which is valid and the other void, the latter will be rejected, and the estate of the trustees will be upheld to the extent necessary to enable them to execute the valid trusts. (Savage v. Burnham, 17 N. Y. 561; Oxley v. Lane, 35 id. 310; Van Schuyver v. Mulford, 59 id. 426; Monarque v. Monarque, 80 id. 320; Harrison v. Harrison, 36 id. 543; Purdy v. Haight, 92 id. 447; 9 Paige, 107; Kane v. Gott, 7 id. 521; 24 Wend. 641; Gilman v. Reddindon, 24 N. Y. 19.)

Edward C. Delavan for Charlotte Varian, defendant. The will creates trusts, and lawfully directs the trustee to fulfill

Opinion of the Court, per RUGER, Ch. J.

them. (Conovan v. Van De Mark, 78 N. Y. 244.) It indicates an intention to create a trust. (Morse v. Morse, 85 id. 53) Where an estate is vested in trustees upon several independent trusts, one or more of which are valid and the others void, the latter will be rejected and the estate of the trustees will be upheld to the extent necessary to enable them to execute the valid trusts. (Van Schuyver v. Mulford, 59 N. Y. 426; Monarque v. Monarque, 80 id. 320; Savage v. Burnham, 17 id. 561; Leggett v. Perkins, 2 id. 297; Post v. Hoven, 33 id. 340; Woodruff v. Cook, 47 Barb. 304; Harrison v. Harrison, 36 N. Y. 543; Wells v. Wells, 88 id. 323.)

RUGER, Ch. J. In December, 1880, Gardiner H. Wolcott executed a last will and testament, the clauses of which, for the convenience of reference, will be numbered, and for brevity will be summarized as follows:

First. "I wish that any property belonging at my death to me be within two years converted into first class bonds and mortgages on New York city property.

Second. "Out of my estate I hereby authorize my executors herein named to pay the sum of $1,000 to my dear friend Laura W. Leavitt, wife of William E. Leavitt.

Third. "One-half of the legal interest from my property I wish paid to my dear father so long as he may live.

Fourth. "One-half the legal interest or income, as in my father's case, derived from my property, I wish paid to my darling Nina's mother, Mrs. Charlotte Varian, so long as she may live.

Fifth. "On the death of my father his share of the income shall be divided between my brother Frederick and sisters Elizabeth and Alice, share and share alike, for life.

Sixth. "On the death of Mrs. Charlotte Varian her share of the income shall be divided between my brother Frederick and sisters Elizabeth and Alice, share and share alike, for life. Seventh. "At the death of the above-named parties -- my father, Mrs. Charlotte Varian, my brother Frederick, and sisters Elizabeth and Alice-I wish the entire estate held in SICKELS VOL. L.

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Opinion of the Court, per RUGER, Ch. J.

trust for my hereinafter-named trustees and executors, to be paid to my dear nephew Huntington Wolcott Merchant, if of age. If at such time he should be a minor, the property will be held in trust for him until he arrives at his majority."

The other portions of the will are not recited, as they are not material to the determination of the questions raised on this appeal.

It was conceded on the argument that the property assumed to be disposed of by this will was either personal property, or under the doctrine of equitable conversion should be so treated in applying the rules relating to the power of suspending the absolute ownership of such property.

It was also determined by the court below that the seventh clause of said will, by which the property demised upon the death of the respective life tenants therein named was to be paid over to Huntington Wolcott Merchant, was void, for the reason that it provided for the suspension of the absolute ownership of the property of the estate in question for a longer period than during the continuance of two lives then in being, contrary to the provisions of the statute.

No appeal has been taken by any party from this part of the judgment, nor has any question been raised on this appeal as to its correctness.

It is perhaps unnecessary, but it is proper for us to say, that we agree with the conclusions reached by the court below upon. the validity of that portion of the will referred to. These conclusions leave but two questions for consideration here, viz. 1st. Whether the trusts attempted to be created by the fifth and sixth clauses of the will are also invalid as suspending the absolute ownership of property beyond the period of time allowed by law; and, 2d, if so, whether the trust may still be upheld for the purposes provided in the third and fourth clauses of the will.

In proceeding to the consideration of these questions, we are met at the outset by a claim on the part of the appellant that the court is now estopped from examining them upon the mer. its by reason of a prior adjudication upon the same questions.

Opinion of the Court, per RUGER, Ch. J.

If this claim be well founded, of course any discussion of the validity of the provisions of this will upon the merits would be unnecessary and useless. Whatever may be the rule as to such matters as might have been, but were not, litigated in a prior action, it is well settled, that as to all matters, either of fact or of law, which legally might have been, and actually were litigated in an action or special proceeding, between the same parties, in a court of competent jurisdiction, the judgment rendered therein is binding and conclusive in all subsequent litigation between such parties or their privies. (Le Guen v. Gouverneur, 1 Johns. Cas. 436; Clemens v. Clemens, 37 N. Y. 59; Malony v. Horan, 12 Abb. [N. S.] 293; Embury v. Conner, 3 Coms. 511, 522.) The rule was stated by Judge JEWETT in the latter case as follows: "That an allegation on record, upon which issue has been once taken and found, and a judgment has been rendered, 'is, between the parties taking it and their privies, conclusive, according to the finding thereof, so as to estop the parties respectively from again litigating that fact once so tried and found; whether it is plead in bar, or given in evidence."

I will proceed to examine the facts upon which the claim of res adjudicata is predicated by the appellant. Prior to the death of the testator, an action was brought by one Howland and wife in the Supreme Court of this State, to secure the partition or sale of certain premises situate in the city of New York, in which the said Gardiner H. Wolcott was alleged to have had an interest as a tenant in common with other parties to said action. After the death of Wolcott all of the persons named as devisees or legatees in his will, and each of his heirs and next of kin, being the same persons named as parties in this action, were by supplemental summons and complaint brought in, and made parties defendant to that action; and they each appeared therein by their respective attorneys.

An interlocutory judgment was, on the 21st of October, 1881, duly rendered in that action, providing for the sale of the premises in question, and an order duly made therein appointing one Thomas L. Ogden a referee "to ascertain the

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Opinion of the Court, per RUGER, Ch. J.

rights and interests of Frederick H. Wolcott, father of the deceased defendant, Gardiner H. Wolcott, and of William E. Leavitt, Louis M. Howland and Edward E. Williams, executors named in the will of Gardiner H. Wolcott, deceased, and of Charlotte Varian, Huntington Wolcott Merchant, Frederick II. Wolcott, Jr., Alice Wolcott and Elizabeth H. Merchant, in and to the share of the real estate described in the said decree, and thereby adjudged to be owned by the deceased defendant Gardiner H. Wolcott." The persons named include each and every party to the present action. Upon a hearing under this order before the referee, attended by all of the parties named, it was determined by said referee, that the will in question attempts to create a trust which is, by its terms, "to continue for more than two lives in being at the time of the testator's death; and is repugnant to the provisions of the Revised Statutes, and void, and as the same cannot be sustained in part, must wholly fail." Exceptions to this finding were filed by the guardian of the infant defendant, Huntington Wolcott Merchant, and upon motion being afterward made to the Special Term for final judgment and the confirmation of the report of the referee, each and all of the parties to this action had notice, and again appeared and were heard by their counsel; and the court thereupon ordered final judg ment in the action, whereby the said report was, in all things, confirmed, and the said exceptions were disallowed, and the proceeds of the share held as aforesaid by Gardiner H. Wolcott, deceased, was ordered to be paid to his heirs at law, as in cases of intestacy.

This judgment now remains unreversed, and, apparently, in full force, in its effect upon the rights of the several parties thereto.

It is difficult to see why the precise question now addressed to this court was not considered and determined in that case. Whatever may have been the condition of the pleadings in the action, as between the several parties thereto, after the sale of the premises, there arose and was presented to the court a question as to the respective rights as between themselves of the several defendants under the will of Gardiner H. Wolcott,

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