## Facts

- Camille F. Howells died domiciled in New York leaving a will naming an executor-trustee.
- The will directed the executor to hold a fund to care for Howells’s five pet animals until their deaths.
- The will also provided that the “balance” of the estate would go to Charles E. Rattray, and authorized the executor during Rattray’s lifetime to pay funds for his care if needed.
- A referee, construing the will in an accounting/construction proceeding, concluded the arrangement effectively ended at Rattray’s death and therefore did not unlawfully suspend the power of alienation.
- Surrogate Wingate reviewed objections to the referee’s construction and independently construed the will.

## Issues

1. Whether a testamentary trust directing the trustee to hold property for the care of animals “until their death” violates New York’s statute forbidding suspension of the absolute power of alienation beyond the permitted period because animals are not permissible measuring lives.
2. If the animal-care provisions are invalid, whether they can be severed so the trust (or remaining dispositions) can operate for the benefit of Rattray.

## Decision

- The court rejected the referee’s saving construction.
- The court held the trust invalid because its duration was measured, at least in part, by the lives of animals, which cannot serve as measuring lives under the statute against suspension of alienation.
- The court held the animal and human provisions were part of a single plan administered from a single fund and were not severable.
- Because the invalid animal-care purpose could not be excised without rewriting the will and defeating the testatrix’s scheme, the entire trust was declared void.

## Legal Principles

- Under New York’s statutory rule against suspension of the absolute power of alienation, non-human animal lives cannot be used as measuring lives to validate the duration of a trust or future interest.
- A court may not “save” an otherwise invalid disposition by construing the will in a way that deletes clear, central directions.
- Severability depends on whether the valid and invalid provisions are sufficiently independent; when they are interdependent parts of a single testamentary scheme supported by one fund, invalidity of a material part can require invalidation of the whole.

## Conclusion

The Surrogate’s Court construed the will as primarily creating a fund to support the decedent’s pets for their lifetimes, with payments for Rattray’s care appended to that scheme, and held the arrangement unlawfully suspended alienation because animal lives cannot measure the trust’s duration; because the provisions were inseparable, the entire trust failed.


In re Howells' Estate, 260 N.Y.S. 598, 145 Misc. 557 (Sur. Ct. Kings Cnty. 1932)