and indefeasible estate in fee. See Home v. Pillans, 2 Mylne & K. 15, 19, and cases cited; Ware v. Watson, 7 De Gex, M. & G. 248. Such appears to be the rule in Pennsylvania - Mickley's Appeal, 92 Penn. St. 514- and the same rule has been adopted in this court

Quackenboss v. Kingsland, 102 N. Y. 128; 4 East. Rep'r, 701and was recognized in Vanderzee v. Slingerland, 103 N. Y. 47; 8 N. E. Rep'r, 247, before referred to. But in that case the learned judge writing the opinion - ANDREWS, J.- says that the rule established by the courts applies only when the context of the will is silent, and affords no indication of intention other than that disclosed by word of absolute gift, followed by a gift over in case of death, or of death without issne, and that, indeed, the tendency is to lay hold of slight circumstances in the will to vary the construction, and give effect to the language according to its natural import, and in the will which the learned judge was then construing he found such indications.

I think that similar indications exist in the will now before us. The testatrix does not charge the legacies upon her daughter, Minnie, personally, but upon the real estate devised; so they would be borne by whomsoever should become entitled to that real estate. She devises the real estate to her, without words of inheritance. She then directs that, in case she should die without issue, her estate, real and personal, should be possessed and enjoyed by the others named in the will. Her death without issue is a contingent event; but by adopting the construction contended for, and claimed to be established by the authorities, the court would add another contingency not specified by the testatrix; that is, that she die without issue during the life-time of the testator. As if to make his intentions clearer, and to indicate that no other contingency was contemplated than the one which she had expressed, the testatrix adds at the end of the clause: "The devise over to my husband, sister, and brothers to depend upon the contingency of my daughter, Minnie, dying without issue;" this repetition clearly defining the testator's intention that, in the event of her daughter's dying without issue, her husband, sister and brothers should enjoy the property, without reference to any other contingency. The daughter was an infant of about six years of age at the time of the death of the testatrix, and it would be a very forced construction of the language of the will to hold that the testatrix had an unexpressed intention that if the child should die the next year, or at any other time after the death of the testatrix, the devise over to her husband, sister and brothers should not take effect.

Our conclusion is that Minnie Van Zandt took, under her mother's will, a base or conditional fee defeasible by her dying without leaving issue living at the time of her death-1 Rev. Stat. 724, § 22-that her issue, should she leave any, would take by inheritance from her, but a conveyance by her in her life-time would be effectual as against them; and that an indefeasible title in fee could be conveyed, and the contingent expectant estate, limited to the husband, sister and brothers of the testatrix in the event of Minnie dying without issue, cut off, by their joining with her in a conveyance. See Emmons v. Cairns, 3 Barb. 243, 246, et seq.

For these reasons we think the order appealed from should be affirmed. All concur.

Order affirmed.

KENNEDY V. HOY.*
March 22, 1887.

WILL TRUSTS-LEGAL AND ILLEGAL IN PART.

Where in a will some trusts are legal and others illegal, if they are so connected as to constitute an entire scheme, so that the presumed wishes of the testator would be defeated if one portion were held legal and other portions illegal, or if manifest injustice would result to the beneficiaries under the will, or some of them, by holding one trust legal and the other illegal, then all must be held illegal. But if the trusts are independent of each other, each complete in itself. and the legal can be separated from the illegal and upheld without doing injustice or defeating what the testator might be presumed to wish, the illegal trust may be cut off and the legal permitted to stand.

CREDITOR'S ACTION— REACHING TRUST FUnd.

The testatrix placed a share of her estate in the hands of her executors, and directed them to apply the income thereof to the support and maintenance of William E. Hoy and his family during his life, and, after his death, to pay the income to his surviving children "until they reach the age of twenty-one years, when the principal is to be divided among them, share and share alike;" and in case William should die without lawful issue surviving him, or in case all his children should die subsequently to his decease, before reaching the age of twentyone years, and without leaving issue, then she directs the share to be divided equally among all her three surviving children and the children of any decased child. William survived, and had a wife and two children.

In an action brought by a judgment creditor of the son to procure satisfaction of his judgment out of the fund in the hands of the executors, on the ground that the trusts created for the son's benefit were void, because the ownership of the property was thereby suspended for a longer period than authorized by statute, held, that plaintiff was not entitled to recover, as the trust for the son was separate in itself and unconnected with the trust intended to take effect after his death, and it could stand alone.

Appeal from judgment of the general term, fourth department.
The opinion states the case.

Thomas M. Wheeler, for appellant. E. H. Grandin, for respondent. EARL, J. The plaintiff, a judgment creditor of William E. Hoy, seeks in this action to procure satisfaction of his judgment out of a certain fund placed in trust under the last will of his mother, Ella Nora Hoy, for the benefit of William and his children. In her will the testatrix placed a share of her estate in the hands of her executors, and directed them to apply the income thereof to the support and maintenance of William E. Hoy and his family during his life, and, after his death, to pay the income to his surviving children "until they reach the age of twenty-one years, when the principal is to be divided among them, share and share alike;" and in case William should die without lawful issue surviving him, or in case all his children should die subsequently to his decease, before reaching the age of twenty-one years, and without leaving issue, then she directs the share to be divided equally among all her three surviving children and the children of any deceased child. William survived, and had a wife and two children.

The claim on the part of the plaintiff is that the trusts created for

* Affirming 23 Week. Dig. 438; 39 Hun, 657.

the benefit of William and his children are void, because they suspend the absolute ownership of personal property for a longer period than is authorized by the statute, and that, therefore, the whole or a portion of the trust property became vested in William, and that the plaintiff can reach that property for the satisfaction of his judgment.

We do not deem it important now to determine whether all the trusts for William E. Hoy and his children are valid or not, because it is sufficient for the determination of this action that the trust for the life of William is legal and valid. That is a separate trust, created by a separate paragraph in the will, is complete in itself, and is not connected with the trust intended to take effect after his death, and can be permitted to stand alone. It has been decided in many cases that where, in a will, some trusts are legal and others illegal, if they are so connected together as to constitute an entire scheme, so that the presumed wishes of the testator would be defeated if one portion were held legal and other portions illegal, or if manifest injustice would result to the beneficiaries under the will, or some of them, by holding one trust legal and the others illegal then all the trusts must be construed together, and all must be held to be illegal, and must fall together. But when several trusts are created, and they are independent of each other, each trust complete in itself, and the legal can be separated from the illegal, and upheld without doing injustice or defeating what the testator might in the emergency be presumed to wish, the illegal trust may be cut off, and the legal permitted to stand, and thus the intention of the testator be effectuated so far as the law will permit.

In this case, by upholding the trust for the benefit of William E. Hoy during his life, no injustice is done to any of the other beneficiaries under the will, and effect is given to the primary intention of the testatrix, so far as pertains to William and his family. A precise authority for this conclusion is the case of Van Schuyver v. Mulford, 59 N. Y. 426. In that case the will of M., by separate and independent clauses, gave to his wife the rents, income and profits of his estate, real and personal, during her life, to the extent necessary to her support, and, in case they were insufficient, he directed his executor and trustee to take and pay to her from the body of the estate what should be necessary from time to time. In another clause he bequeathed the rents, income and profits after the death of his wife to his two daughters during life; and, after the death of the wife and daughters, he devised and bequeathed the estate to the issue of his said daughters; and it was held that the provision for the wife was valid, and would be sustained, although the devise over was void. That case is so like this that no other authority need be referred to or cited. Therefore, the trust for William E. Hoy being valid, there is nothing out of which to satisfy the plaintiff's judgment, and there is no ground for the maintenance of this action.

The judgment should be affirmed, with costs.

All concur.

QUESTIONS OF REGULARITY COMPTROLLER.

The State comptroller, as between the purchaser at a tax sale and the State, under whose authority he acts, may decide questions of regularity relating thereto. He has no judicial power to determine a controversy between other parties, but to "discover" a fact which, when found, is to determine his own conduct.

Motion for re-argument. Denied.

W. B. Van Rensselaer, for appellant. D. O'Brien, attorney-general, for respondent.

DANFORTH, J. On November 11, 1884, the relator by petition represented to the comptroller that in December, 1871, he became the sole owner of certain lots of land, numbered 18, 20 and 34, in the north half of Arthurboro patent, in the town of Morehouse, Hamilton county; that in 1877 they were sold for the taxes of 1870, and Nos. 18 and 20 conveyed to Ballou, and lot 34 to Peck; that the sale was void, because : "First, the corrected assessment-roll for the town of Morehouse being the township in which said lots are situated for the year 1870, as delivered by the supervisor of the town of Morehouse to the town clerk thereof, is incomplete and defective, because (a) there is no oath of the assessors on said assessment-roll or attached thereto; (b) that these lots belong to non-residents, and that the number of acres of each lot is not given; (c) that the values of the above lots are not given; (d) that there is no fifth column at all; (e) that there are no figures set down to show the respective sums in dollars and cents, to be paid as a tax on said lots. 1 Rev. Stat. 395, $$ 33, 35. Second, that it does not appear, from any statement in the collector's return, and affidavit thereto, or the county treasurer's certificate, that the taxes for the year 1870 remaining unpaid were assessed upon the lands of non-residents." And prayed, therefore, that, in pursuance of the authority conferred upon the comptroller by section 85 of chapter 427 of the Laws of the State of New York, passed in the year 1855, that the tax sale of 1877, so far as the same relates to lots numbered 18, 20 and 34, in the north half of the Arthurboro patent, in Hamilton county, and State of New York, be canceled, and that any conveyance delivered by virtue of said sale of the said lots be set aside, and discharged of record.

The comptroller, after hearing, denied the application. The relator by certiorari sought to review that decision. Upon return made, the supreme court affirmed it. The relator appealed to this court. Upon the argument the learned counsel for the relator repeated upon his points the statement of the petitioner that "the application made by the relator on November 11, 1884, to the comptroller to cancel such tax sale was made under the authority of sections 83, 84 and 85 of chapter 427 of the Session Laws of 1855," and in reply thereto the learned attorney-general, for the respondent, submitted as a distinct proposition that there is no statute authority for the demand made by the relator upon *Motion for re-argument. See 4 East. Rep'r, 305, for opinion on former argument.

the comptroller to cancel the sale; that the sections above named and cited by the appellant were enacted for the benefit only of purchasers who had paid their money on the strength of the title of the State, and gave no right to an owner of the lots either to make the demand that the comptroller cancel the sale, or, upon his refusal, to review that determination.

This position was not answered by the relator upon any authority, nor other statute than that of 1855, supra. We sustained the view of the attorney-general, and without passing upon the merits, dismissed the appeal March 2, 1886. A motion for a reargument is now made by the relator upon affidavit of his counsel showing that the point made by the attorney-general, as to the limitation of the statute of 1855, was not taken in the supreme court, nor anticipated by the relator as one which might be made in this court, and, therefore, that he failed to cite decisions and statutes bearing upon, if not controlling, the question, viz.: Laws 1873, chap. 120; Laws 1885, chap. 448; Clark v. Davenport, 95 N. Y. 477.

The beginning of this remedial legislation may be found in chapter 262 of the Laws of 1823, which enacted - § 52" that if the comptroller shall discover, at any time before he conveys land sold for taxes, that the sale was, for any cause whatever, improper, he shall not convey the land so improperly sold, but shall pay the purchasers of such lands the sum which they would be entitled to if such land had been regularly redeemed by the owner, and the sum to be paid shall be a charge against the county from which the return of the tax was made, if the cause why such sale was improper originated with the county.' By 1 Revised Statutes, page 413, section 89, this provision was re-enacted so as to read: "Whenever the comptroller shall discover, prior to the conveyance of any lands sold for taxes, that the sale was, for any cause whatever, invalid and ineffectual to give title to the lands sold, he shall not convey the lands so improperly sold, but shall forthwith cause the purchase-money and interest thereon to be refunded out of the treasury to the purchaser, his representatives or assigns." And by section 91 it was provided that "if the discovery that the sale was invalid shall not be made until after a conveyance shall have been executed by the comptroller for the lands sold, it shall be the duty of the comptroller, on receiving satisfactory evidence thereof, to refund out of the treasury, to the purchaser, his representatives or assigns, the purchase-money and interest thereon; and to recharge the county from which the tax was returned with the amount of tax and interest, at the rate of seven per cent from the time interest was charged thereon by him, and such county shall cause the same to be levied and paid as provided in the last section." It is obvious that these provisions concern no one but the purchaser, the State, and the county or town from which the tax was returned.

The act of 1850-chap. 298, $$ 102, 104- contains the same provisions, with slight verbal alterations, among others directing that after such discovery the comptroller shall cancel the sale. This was evidently for no other purpose than to preserve the regularity of the proceedings in the refunding and recharging process, and concerned