other characteristics of the custom or usage, and that as to the knowledge thereof of the parties, and therefrom to determine whether there is shown a custom of such age and character as that the presumption of law will arise that the parties knew of and contracted in reference to it, or whether the usage is so local and particular as that knowledge in the party to be charged must be shown affirmatively or may be negatived."

In Underwood v. Greenwich Ins. Co., 161 N. Y. 413, at page 423, 55 N. E. 936, the rule governing the admission of evidence of usage to affect and interpret a contract as laid down in Newhall v. Appleton, 114 N. Y. 140, 21 N. E. 105, 3 L. R. A. 859, and Atkinson v. Truesdell, 127 N. Y. 230, 27 N. E. 844, was quoted with approval. The rule in Walls v. Bailey, supra, was quoted with approval in London Assurance Co. v. Thompson, 170 N. Y. 94, at page 99, 62 N. E. 1066.

In Miller v. Fischer, 142 App. Div. 172, 126 N. Y. Supp. 996, plaintiff brought an action upon a contract for the hiring of a canal boat for the transportation of ice. The defendant's contention at the trial. was that there was a custom among boatmen and ice dealers, known to the plaintiff, to the effect that boats engaged in the transporting of ice should not be paid for unless ice should form of sufficient thickness to be marketable. The trial court ruled that the contract was specific and that proof of custom was immaterial. Mr. Justice Houghton, writing the unanimous opinion of the court, said:

"We are of opinion this was error. Assuming that the telegrams and writings which passed between the parties constituted a binding written contract, still the terms are not so specific that it can be said as matter of law that it was not made with reference to a well-known and uniform custom of the business. Parties are presumed to contract in reference to a uniform, continuous, and well-settled usage or custom pertaining to the matters as to which they enter into agreement, where such usage is not in opposition to well-settled principles of law, and is not unreasonable, and not in contradiction of the express terms of the contract, whether such contract be written or oral [citing cases]."

The foregoing are but a few of the cases establishing the proposition that evidence of usage, for the purpose of establishing the intent of parties to a contract who are engaged in any business, trade, or profession, is admissible when such evidence does not contravene positive provisions of law or contradict clear and express terms of the contract itself.

In the case at bar the parties were both in the theatrical business and made a contract in reference to theatrical matters. That business is as clearly a distinct business as any of those considered either in the cases cited or in others to be found in the books; and it may well have particular usages, which must be taken into consideration. in ascertaining the intent of such contract, or which by such long and universal continuance arrive at the dignity of custom as binding as a rule of law. Whether the particular evidence sought to be introduced would have been sufficient to have supported the allegations of the answer and controlled the disposition of the case is not before us. The sole question is whether such evidence was competent. I have no doubt that it was, and therefore, in my opinion, the determination of the Appellate Term, and judgment and order of the City Court,

should be reversed, and a new trial granted, with costs in all courts to the appellant to abide the event.

DOWLING, J., concurs.

(165 App. Div. 481)

RIPLEY et al. v. GUARANTY TRUST CO. OF NEW YORK et al. (No. 6500.) (Supreme Court, Appellate Division, First Department. December 31, 1914.) 1. POWERS (§ 36*)-CONSTRUCTION-EXECUTION.

The validity of provisions of a will of real or personal property, executing a power of appointment contained in an earlier instrument, must be tested by reading the provisions of the will into the instrument which created the power.

[Ed. Note. For other cases, see Powers, Cent. Dig. §§ 137-149, 155; Dec. Dig. § 36.*]

2. WILLS ($ 81*) - VALIDITY

SIONS.

- INTERMINGLED AND INTERDEPENDENT PROVI

When the several parts of a will are so intermingled or interdependent that a bad provision cannot be separated from the rest of the will, the whole must fall; but if it is possible to cut out the invalid provisions, so as to leave intact valid parts and preserve the testator's general plan, such construction will be adopted as will prevent intestacy, either partial or total, as the case may be.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 201, 202; Dec. Dig. § 81.*]

3. WILLS (§ 680*)-TESTAMENTARY TRUST-VALIDITY-Perpetuities.

Testator, having a wife and one child, an infant, who was his only surviving child, by the residuary clause of his will bequeathed his property to his executors, as trustees, during the life of the widow, with a proviso that half of it should be paid over to the child if he lived to reach 30 years of age, the other half remaining in the trustees for the widow's benefit during the remainder of her life, she to enjoy the whole income during the child's infancy, but after he arrived at 21 he was to receive one-quarter of the income, one-half after reaching 25, the balance in each case to go to the widow, and finally, when the child became 30, he should receive half of the fund. The eleventh subdivision of such clause declared that on the death of the widow the trustees should hold the remaining moiety in trust for all or any of testator's child or children who, being sons, attained the age of 21, or, being a daughter or daughters, attained that age or married, if more than one in equal shares, but subject to the trusts and powers previously declared. Held that, while such latter subdivision was void as an illegal suspension of alienation, the balance was valid as creating a single trust term limited on the life of the widow, subject to terminate as to one-half of the fund when the child arrived at 30 years of age, and terminating as to the whole on the death of the widow.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1594-1598; Dec. Dig. § 680.*]

4. PERPETUITIES (§ 6*)-SUSPENSION OF ALIENATION.

A testator may suspend the absolute power of alienation for two selected lives in being at the creation of the estate, and during that time may make such disposition of the annual income among as many persons as he sees fit.

[Ed. Note. For other cases, see Perpetuities, Cent. Dig. §§ 4-47, 4953, 56; Dec. Dig. § 6.*]

Laughlin and Dowling, JJ., dissenting.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Appeal from Special Term, New York County.

Action by Alice L. Ripley and others, as executors, against the Guaranty Trust Company of New York, impleaded with Alice L. Ripley and Harry D. D. Ripley, an infant, etc. From an interlocutory judgment in favor of plaintiffs, Harry D. D. Ripley appeals. Affirmed.

See, also, 149 N. Y. Supp. 1108.

Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, SCOTT, and DOWLING, JJ.

Richard Cummins, of New York City, guardian ad litem, for appellant.

Samuel B. Clarke, of New York City (Roger H. Clarke, of New York City, on the brief), for respondents.

SCOTT, J. The sole question of law presented by this appeal is as to the validity in whole or part of the attempted disposition in the will of Harry Dillon Ripley of the fund which he had assigned in. trust to the Knickerbocker Trust Company and Sidney Dillon Ripley, as trustees, and which is now held by the Guaranty Trust Company as trustee. The facts have been so fully and clearly stated by Mr. Justice LAUGHLIN that it will be unnecessary to recapitulate them, and we can accordingly proceed at once to the consideration of the will in controversy. We pass, without deciding, the question whether or not the decree in the Surrogate's Court, referred to by Mr. Justice LAUGHLIN, is res adjudicata so far as concerns the question here, since we are not agreed on that point, and proceed to consider the validity of the will de novo.

The objection urged against the will is that, so far as it relates to the fund involved in this proceeding, it undertakes to suspend the absolute ownership of the personal property, of which the trust fund consists, for more than two lives in being at the date of the instrument containing the limitation, in violation of what is commonly known as the statute against perpetuities.

[1] It is perfectly well settled that, with regard to personal property, as well as with regard to real estate, the validity of the provisions of a will executing a power of appointment contained in an earlier instrument must be tested by reading the provisions of the will into the instrument which created the power. Fargo v. Squiers, 154 N. Y. 250-259, 48 N. E. 509. So reading the deed of trust and the will conjointly, it is apparent that one of the lives mentioned in the statute was that of Harry Dillon Ripley himself, the creator of the trust. This left it open to him to suspend, by his will, the absolute ownership of the fund for not more than one life in being at the time the deed of trust was executed. This one life, as the will was drawn, was that of his wife, Alice Louisa Ripley, for whose benefit the fund in controversy, with other property, was given to the executors as trustees. It is conceded that this provision for the testator's widow, if standing alone, would be unimpeachable, and would not contravene the statute against perpetuities. The argument against the entire invalidity of the ninth clause of the will rests upon the invalidity of

other provisions contained in that clause, which, as it is considered by the appellant, constitute so important a part of the testator's scheme of disposition that their invalidity necessarily condemns the whole clause, including the trust attempted to be created for the benefit of the widow. The fundamental question, therefore, which we are called upon to decide, is as to whether the valid trust for the life of the widow is so distinct and separable from the other and concededly invalid provisions of the will that it can be upheld.

[2] The rule to be followed in such a case is thus declared in Kalish v. Kalish, 166 N. Y. 368, 59 N. E. 917:

"This necessity [of deciding whether as to certain wills the void provisions may be excised] has led to the rule, which is now firmly established in this state, that when the several parts of a will are so intermingled or interdependent that the bad cannot be separated from the good, the will must fail altogether; but when it is possible to cut out the invalid provisions, so as to leave intact the parts that are valid, and to preserve the general plan of the testator, such a construction will be adopted as will prevent intestacy, either partial or total, as the case may be."

See, also, Davis v. McMahon, 161 App. Div. 458-464, 146 N. Y. Supp. 657, and cases cited.

[3] When the testator made his will, he had one child, the appellant here, then an infant of tender years, and, as the event proved, his only surviving child. The general scheme of the residuary (ninth) clause of the will was that the property should be held by the execu tors as trustees during the lifetime of the widow, with the proviso that one half of it should be paid over to the child if he lived to the age of 30 years, the other half remaining in the trustees for the benefit of the widow during the remainder of her life. The widow was to enjoy the whole income during the infancy of the appellant; after he arrived at the age of 21 years, he was to receive one-quarter of the income, and after he arrived at the age of 25 years, one-half, the balance in each case still going to the widow; and, finally, when the appellant arrived at the age of 30 years, he was to receive one-half of the fund in possession and control.

We think it quite clear that this created but a single trust term, limited upon the life of the widow, subject to terminate as to one-half of the fund when the child arrived at the age of 30 years, and terminating as to the whole fund on the death of the widow. That this is the true construction of the will is indicated, as we think, by the eleventh subdivision of the ninth clause, wherein the testator attempts to dispose of the remainder after the death of his widow. That subdivision reads as follows:

"(11) Upon the death of my said wife then to hold the remaining moiety of my said estate upon trust, for all or any of my children or child who being sons attain the age of twenty-one years or being a daughter or daughters attain that age or marry if more than one in equal shares, but subject to the trusts and powers hereinafter declared concerning the same."

This provision is clearly invalid, but it serves to illuminate and emphasize the intention of the testator that the first gift to his trustees was to last for the lifetime of his widow and be limited thereby.

[4] There are in effect two separate and successive gifts to the

trustees. The first expires on the death of the widow. The second was intended to go into effect at her death. If this be the proper construction of the will, it is of no consequence that the whole income is not to be paid to the wife during the full term of the trust. The validity of the will depends upon the limitations of the trust estate, and notupon the manner in which the income is disposed of.

"A testator may suspend the absolute power of alienation for a period of two selected lives in being at the creation of the estate, and during that time he may make such disposition of the annual income among as many persons as he sees fit. Thus having created a trust term which must end within the period required by the statute, he may provide that the income shall be paid during that time to A. for life, remainder to B. for life, remainder to C. for life, and so on for as many different lives as he chooses, provided the whole trust term must end with the death of the survivor of the two lives." Schermerhorn v. Cotting, 131 N. Y. 48-58, 29 N. E. 980, 981.

The above quotation exactly fits the case at bar. Here the testator has created a trust term limited upon the life of his wife, and which must end at her death, because upon the happening of that contingency a new trust estate was provided for in the eleventh subdivision of the ninth clause of the will. Within the term of the first trust, differing dispositions are made of the income, depending upon the age of the son. The circumstance that when the son reaches 30 years of age a portion of the fund is to be withdrawn from the trust and paid over to him does not affect the validity of the trust. All that is invalid in the ninth clause is the eleventh subdivision, undertaking to create a new trust in the remainder after the death of the wife. The only effect of deleting this provision will be that the remainder will be undisposed of and pass as if no such provision had been attempted to be made. It is true that the absolute vesting of the estate in the son may be accelerated if the widow should die before he attains the age of 30 years, and to this extent the intention of the testator may be defeated; but it will be much more decisively defeated if the whole ninth clause be declared invalid and the testator held to have died wholly intestate. In Kalish v. Kalish, supra, the Court of Appeals, after an exhaustive review of the authorities in this country and England, approved a construction of a will which lifted bodily out of it an invalid trust provision, leaving the antecedent and subsequent provisions standing, although the effect was to accelerate the ultimate vesting of the estate.

We are therefore of the opinion that the trust provision for the life of Mrs. Ripley was and is valid, and should be upheld, notwithstanding the obvious invalidity of the provision for the disposition of the remainder after her death.

It follows that the judgment appealed from must be affirmed, with costs to plaintiff and the guardian ad litem payable out of the estate.

INGRAHAM, P. J., and McLAUGHLIN, J., concur.

LAUGHLIN, J. (dissenting). This is a suit in equity by the executrix and executor of Harry Dillon Ripley to compel defendant Guaranty Trust Company to account to them for property held in trust under a deed of trust made by their testator on the 27th day of April,