(239 N. Y. 1) (145 N.E.) SCHNITZER v. LANG et al. (Court of Appeals of New York. Sept. 30, 1924.) 1. Sales 288 (4)—Buyer must give notice of breach of promise or warranty within reasonable time after knowledge of breach. If, after acceptance of goods, buyer fails to give notice to seller of breach of any promise or warranty within reasonable time after he knows, or ought to know, of breach, seller is not liable therefor, under Personal Property Law, § 130. 2. Sales 445 (5)-Buyer held not required, as matter of law, to have known before he did of defects constituting breach of warranty. Where cloth was delivered to shirt maker, buyer, in installments between June 11, 1919, and January 29, 1920, and was placed on shelves and not used immediately, held that it could not be said, as matter of law, that buyer should have discovered that colors ran, contrary to warranty, before August 1920, when fact was first ascertained, under Personal Property Law, § 130. 3. Sales284 (3)-Buyer of shirt material not required to resort to extraordinary test to determine whether colors would run. Buyer of goods to be manufactured into shirts was under no duty to resort to extraordinary test to determine whether colors would run, contrary to warranty; his duty to inspect being confined to forms of inspection that were customary and reasonable. Hiscock, C. J., and McLaughlin and Crane, JJ., dissenting. fendants and peculiar to their business. The colors were to be distributed among the total yardage in designated proportions. Delivery was to be as soon as possible, beginning in July and to be completed by November 1. The plaintiff bought the goods for use in his business, which was that of a manufacturer of shirts. As to many of the facts, there is sharp conflict in the testimony. Since the judgment under review is one dismissing the complaint, it is enough for present purposes to state the plaintiff's version. Before the contract was signed, he was told by the defendants' salesman that No. 1000 was the designation in the defendants' business of a quality of silk with fast colors suitable for shirts. A sample stated to be of this number was left with the plaintiff, who tested it by washing and scrubbing, found the colors fast, and thereupon gave the order. Deliveries were slow; and by November 1 only 59 pieces had been received out of the total 78. The goods as they arrived were inspected with a view to the discovery of any defects that inspection would reveal, and were then placed upon the shelves. When November 1 had passed and delivery was overdue, the plaintiff telephoned the defendants complaining of the delay. He said that he would no longer be able to use the goods for the spring trade, but would keep them on his shelves, and hold them till the following season, i. e., the fall of 1920. With this understanding, the belated deliveries, continuing till January 29, 1920, Appeal from Supreme Court, Appellate Di- In the meantime some sample shirts had were accepted, and the goods were laid aside. vision, First Department. Action by Charles Schnitzer, doing business under the name of the Le Roy Shirt Company, against Carl Lang and another, doing business under the name of Lang & Hoffman. From a judgment entered on an order of the Appellate Division (207 App. Div. 595, 202 N. Y. S. 530), reversing a judgment in favor of the plaintiff entered on a verdict, and directing a dismissal of the complaint, plaintiff appeals. Judgment in so far as it dismisses complaint reversed, and new trial granted. Eugene L. Bondy, of New York City, appellant. for Samuel Fleischmann, of New York City, for respondents. CARDOZO, J. On June 11, 1919, plaintiff and defendants made a contract in writ ing by which plaintiff agreed to buy and defendants to sell 78 pieces of silk at the price of $1.60 per yard. The quality was to be No. 1000, a description adopted by the de145 N.E.-5 been made up to be exhibited to the trade. There is evidence that in August, 1920, a few of these shirts were sold to employees, and were then washed for the first time. The colors ran, and at once there was complaint. On August 27, 1920, the plaintiff gave notice to the defendants that the colors washed out as soon as the goods were placed in water. This action followed to recover damages for breach of warranty. The breach assigned is twofold: Breach of an implied warranty that the bulk shall correspond with sample; and breach of the implied warranty of a dealer that goods in which he deals shall be of merchantable quality. Personal Property Law (Consol. Laws, c. 41) § 97, subds. (a) and (c). The jury found a verdict for the plaintiff. The Appellate Division reversed, and held that as a matter of law there had been unreasonable delay. buyer fails to give notice to the seller of the [1-3] "If, after acceptance of the goods, the breach of any promise or warranty within a reasonable time after the buyer knows, or ought to know, of such breach, the seller shall not be liable therefor." Personal Property Law, be reversed, and a new trial granted, with costs to abide the event. § 130. The buyer did not know of this breach. The question is whether, as a matter of law, he ought to have known. We think the knowledge to be imputed to him in the exercise of reasonable diligence must be deAt the termined by the triers of the facts. dates of delivery, the defect, the running of the colors, was not apparent to the eye. It could not be ascertained till the silks were washed or laundered. We cannot say as (Court of Appeals of New York. Sept. 30, a matter of law that the plaintiff was under 1924.) 459-Court should read language so as to effectuate testator's purpose, but not rewrite or mutilate will. 2. Wills 452-Mere expression of testamentary desire insufficient to exclude heir from participation in trust estate. Rules as to suspension of power of alienation will be reasonably applied, and, to make intention to exclude heir from participation in trust estate, testator must use apt legal words; mere expression of testamentary desire being insufficient. a duty to resort to tests so rigorous. American. Wills Steam Gauge & Valve Mfg. Co. v. Mechanics Iron Foundry Co., 214 Mass. 299, 101 N. E 376. He had already washed the sample, Court should so read language of will as and found the colors fast. He had no reason to effectuate testator's purpose, if canons of to suppose, when the goods thereafter deliv-construction and interpretation permit, but ered were fair upon their face, that defects should not rewrite or mutilate will. foreign to the sample were latent in the bulk. M. & M. Co. v. Hood Rubber Co., 226 Mass. 181, 183, 115 N. E. 234. So at least a jury might find if they found his testimony true. "Reasonable time is not an inflexible term. It depends commonly upon the circumstances of each case." Am. Steam G. & V. Mfg. Co. v. Mech. Iron Foundry Co., supra; 2 Williston, Sales (2d Ed.) §§ 476, 484a. The defendants had notice that the goods were to be placed in stock and held in reserve for This meant that the fall season of 1920. there would be no opportunity to discover the defective coloring until the shirts had been manufactured, and customers had worn them. As to imperfections so concealed, a reasonable man might not unreasonably assume that the delivery had been made in accordance with the contract. M. & M. Co. v. Hood Rubber Co., supra. The plaintiff was under no duty to resort to extraordinary tests. His duty to inspect was confined to forms of inspection that were customary and reasonable. Doane v. Dunham, 79 Ill. 131; 2 Williston, Sales (2d Ed.) §§ 474, 476. think a jury might find that this duty fulfilled. We was Some point is made that in later correspondence the defendants disclaimed a willingness to guarantee the goods at all. The chief subject of discussion was a supposed warranty that the goods would not "slip, pull, or fuzz." This had no relation to a warranty of the firmness of the colors. If some expressions here and there might be thought to have a broader meaning, the result would not be changed. The contract had been made. The defendants could not destroy its warranties by denying their exist 3. Wills 634(15), 680-Will construed as not vesting share of personalty in children of testator's second wife on his death nor as creating one indivisible joint trust. Will held not to vest third of testator's personalty on his death in children of second wife, subject to her life estate and to be divested, in case of death, in favor of issue or surviving brothers and sisters, nor to create one indivisible joint trust. 4. Perpetuities 4(11)-Power of alienation of child's share held not suspended beyond child's life. Expressed intention that absolute ownership of child's share, to vest in such child's issue on devisee's death, be not suspended, except during single life of child and minority of grandchild, held not to necessarily imply suspension of power of alienation beyond child's life; right of possession merely being postponed, if issue were infants, by provision that such share should remain in executor's custody. 5. Wills 473-Illegal unimportant provision will not defeat testator's purpose, if essential legal provisions may be preserved. If way may be found to preserve what is essential and legal in will, that which is illegal and of minor consequence must not be permitted to defeat testator's clear purpose. 6. Wills 473-Provisions in favor of existing children and their issue held not invalidated by provisions violating rule as to perpetuities. Provisions vesting shares of estate in certain children on their reaching 40, or in issue (145 N.E.) of deceased children, held not invalidated by provisions for addition of share of child dying without issue to shares of surviving children, as involving contingent continuance of trust during lives of widow, children, and two lives more. 7. Wills 81-WII not invalidated because alternative provision might possibly suspend ownership for four lives, where estate actually vested in second life. Alternative provision of will, creating invalid contingent estate because absolute ownership might possibly be suspended for four lives in being, does not invalidate entire will, where the contingency never occurred, and property actually became vested under a valid provision. the validity of a will is to be determined as of the time of the death of the testator and not in the light of what has actually occurred (Matter of Wilcox, 194 N. Y. 288, 87 N. E. 497), obtained an adjudication that, as thus read, the will is invalid in respect to the trust created for their benefit because, under possible contingencies, the power of alienation is suspended for more than two lives in being at the death of the testator, and that he is accordingly entitled to share equally with them in the fund provided for their benefit. [1, 2] These provisions refer to the onethird part of his residuary estate amounting to upwards of $3,000,000, which testator directed to be "set apart for the benefit of Hiscock, C. J., and Crane and Andrews, JJ., my wife and after her death for the childissenting. dren of our marriage, in view of the fact that my eldest son Henry G. Trevor is in Appeal from Supreme Court, Appellate possession and enjoyment of a separate esDivision, Second Department. tate derived from his mother and maternal Petition by Henry G. Trevor for construc-grandfather." If the testator has not validtion of the will of John B. Trevor, deceased, ly executed his declared purpose to exclude From order of Appellate Division (209 App. Henry from participation therein, the court It should be sedulous Div. 1, 204 N. Y. S. 387), reversing in part sur- should so declare. rogate's decree construing will, petitioner not to defeat the testator's expressed intenand John B. Trevor and others appeal. Re- tion. It should so read his language as to versed, and surrogate's decree affirmed in effectuate his purpose, if the canons of construction and interpretation permit. But it part. should not assume the task of rewriting or The rules as to the mutilating the will. suspension of the power of alienation are explicit, although their application is at times difficult. The court will not trifle with See, also, 119 Misc. Rep. 277, 196 N. Y. S. 152; 120 Misc. Rep. 22, 197 N. Y. S. 719; 207 App. Div. 673, 202 N. Y. S. 862; App. Div., 203 N. Y. S. 956. George W. Wickersham and Francis Smyth, both of New York City, for John B. Trevor and others. J. Edwards Wyckoff, John F. Devlin, and James Morrow, all of New York City, for John A. Stewart and others. Abel E. Blackmar, C. C. Daniels, Henry A. Forster, and Henry J. O'Neill, all of New York City, for Henry G. Trevor. POUND, J. Testator died over 33 years ago. His widow died July 22, 1922. He had a son by his first wife, Henry G. Trevor. By his second wife, Emily G. Trevor, he had three children, Mary, Emily, and John, who were at the time of his death under the age of 21 years. For this wife and her children he made special provision in his will. The daughter Mary married, died December 1, 1900, and left two children. The daughter Emily and the son John are living, and are upwards of 40 years of age. The children of Mary are of full age. No obstacle would remain in the way of the vesting and distribution of their shares under the terms of the will if it were not for the fact that Henry G. Trevor has, by invoking the rule that them, but will give them a reasonable ap plication. Whatever the intention of the tes tator may be, he must use apt legal words to make his intention effective as against the statute. The heir's interest may not be taken from him by a mere expression of testamentary desire. At the death of the widow the will provides: "The said principal sum (i. e., of the trust for the benefit of the wife and her children) shall be disposed of by my executors for the benefit of her children, Mary T. Trevor, Emily H. Trevor and John B. Trevor, Junior, by adding the same in equal parts to the several shares representing her said children respectively in my residuary estate as hereinafter provided." The will directs the executors or trustees to divide the residuary estate into four equal shares to represent his four children, and "to hold and invest each share" and apply the income to the support of each child during minority, etc. We are not concerned with the provisions as to income on the shares in the one-third part here involved, as the widow had the entire income during her life. The will provides for the disposition of the principal of the residuary estate as follows: Upon each child attaining the age of 23 years, 26 years, and 32 years respectively, the executors are "to pay over" to such child one-fifth part of the principal and two-fifths thereof at the age of 40 years, subject to the discretionary power, which is not asserted, of the executors or trustees to withhold payment of one-fifth during the life of a child. By distinct and separate provisions testator further directs: "In the event of the death of any child of mine before me, or after me, before receiving his or her share of my estate in full leaving lawful issue, such issue shall stand in the place of the deceased parent and the share of my estate representing the child who shall have so died shall belong to and vest in the issue of such child so dying and be divided equally among them per stirpes, share and share alike, but in respect to any issue of a child so dying who shall be an infant under the age of twentyone years, I direct my executors to set apart the equal part of the parent's share to which such infant child will be entitled at the death of the parent and hold the same during the minority of such infant child and to apply the income only of such share to the benefit of such infant child during minority as far as may be necessary, and on such child attaining the age of twenty-one years to pay over the principal of the share of such child to such child with any accumulations of interest thereon. * It being my intention that the absolute ownership of each share of my estate representing any child or grandchild of mine shall not be suspended except as hereinbefore specified during the single life of the child whom it represents and during the minority of any grandchild. In the event of the death of any child of mine before me or after me without leaving lawful issue surviving him or her, and before he or she shall be entitled to receive his or her share of my estate in full as hereinbefore provided, I direct my executors or trustees to add the share representing such child, or so much thereof as may remain unpaid, in equal sums to the shares of my estate representing my other surviving child or children." The trusts were duly created. No question is raised on this appeal except as to the right of Henry G. Trevor to share in the trust fund created for the benefit of his stepmother and her children after her death. The residuary estate has, with this exception, been administered in accordance with the terms of the will on the theory that the shares of the children therein were vested, but the question here raised was not decided in the prior accountings, did not necessarily arise until the termination of the life of the second wife, and is an open one. [3] The will cannot be fairly read, as is contended by appellants, as vesting upon the death of the testator one-third of testator's personal estate in the three children of the second wife, subject to the life estate of the mother, and subject to being divested in case of death in favor of issue or in favor of surviving brothers or sisters. The will contains no words of present gift to the children depending on a contingency, and may not be construed as applying merely to futurity of possession. As was said in Lewisohn v. Henry, 179 N. Y. 352, 361, 72 N. E. 239, 241: "He was determined that they should not squander his estate, and he took great care to prevent that result, which he could not prevent in the case of their issue, appointees, and next of kin, owing to the limitations placed by law upon the right to create trusts. If a share vested in each child upon the death of the testator, it was subject to alienation at the will of the owner, for a vested right is alienable and may be assigned. Whatever one owns he may sell, even if the date of full possession and enjoyment is not due. "The trustees took the legal title with the usual power of management and with the duty of applying the net income to the use of the respective beneficiaries. They were to have and to hold' each share until the child for whose benefit it had been set apart should reach a certain age and, 'upon arrival' at that age, they were to convey and pay over to him or her a part of the capital 'in fee simple and absolutely.' The use of the word 'upon' followed by a direction to convey indicates that until the contingency named should happen ** No part there was to be no vesting. of the capital was to go to the children until the time fixed for absolute transfer to them should arrive. The direct gift to the executors and the absence of any gift of capital to the children in the first instance show that there was no intent to vest title in them prior The gift to the date named for distribution. of capital to the children was through the direction to convey, and there was no vesting until the time to convey came around." elaborate scheme of contingencies thus proOn the other hand, notwithstanding the vided for, no suggestion appears of an intention to create one indivisible and joint trust. The expressed purpose of the testator is, first, to separate the residuary estate into four distinct shares, one for each of his children, and then to anticipate possible contingencies by making provisions applicable separately to each share, which might prove unessential to his dominant purpose. [4-6] The possibilities of distribution provided for by the will which are said to contravene the provisions of the statute against suspending the power of alienation are as follows: First, if a child dies before receiving the principal, and leaves issue, the issue are to take, except that if they are minors they are not to have the principal until majority. (145 N.E.) When the testator says that it is his inten- | preserved, the result will be validly to tie tion that absolute ownership of a child's up each share, first, for the life of the widshare shall not be suspended except during ow, and then for no more than the life of a the single life of the child whom it repre- child whom the share represents. The tessents and during the minority of any grand- tator's desire is thus far validly expressed. child, he does not necessarily imply that the If the estates then vest, the statute is not power of alienation has been thus suspend-offended. If, in providing for the distribued by him beyond the life of the child. He says, first, that the child's share shall on the death of the child "belong to and vest in the issue of such child." He postpones the right of possession, if the issue are infants, by providing that such shares shall remain in the custody of the executors, and it may well be said for the sake of consistency and in order, if possible, to vest an estate, that the interest of the minors vests absolutely at the end of the second life. In other words, he directs when their vested interests shall be given to them; when they shall come into free and unrestricted possession of their shares. Nothing is interposed between the beneficiaries and their enjoyment of their estate except the provisions of the will as to the time of such free and unrestricted possession of their shares. Van Brunt v. Van Brunt, 111 N. Y. 178, 187, 19 N. E. 60. The suspension of the full power to alienate during minority results from the disability of infancy. The statute is aimed only as suspension by the terms of the will. Beardsley v. Hotchkiss, 96 N. Y. 201, 214. tion of the share of a child who should die without issue before receiving his share, testator has potentially gone beyond the statutory limitation, the line of cleavage may be drawn accordingly. His primary purpose is that, if the children of his widow live to become entitled to possession of their shares under his will, ownership shall vest in them; if they die leaving issue before becoming entitled thereto, the ownership shall vest in their issue. His secondary, separable, and alternative purpose is that, if any of them die without issue before receiving possession of their shares, such shares shall go to the surviving children. The trust for the benefit of the children and their issue may be treated as an entirety; the contingent trust for the benefit of the surviving children in the case of the death of a child without issue as another entirety. [7] One of the alternative provisions is valid. If a child does not die, his estate vests when he reaches the age of 40; if he dies leaving issue, the estate vests in his is which is good. The invalidity of the testamentary provision in favor of surviving sue. The mere fact that the limitation over Secondly, if there are no issue, the share on another contingency which has not oeof a child so dying before receiving posses-curred is invalid does not invalidate that sion is to be added to the shares of the surviving children. This possibility involves a contingent continuance of the trust. The share of a child might be augmented by the death of the others and continued under the trust. Matter of Silsby, 229 N. Y. 396, 128 N. E 212; Church v. Wilson, 152 App. Div. 844,1 affd., 209 N. Y. 553, 103 N. E. 1122. Absolute ownership of such a share might thus be suspended (a) during the life of the widow, (b) during the life of a child, and (c) during two lives more. Ward v. Ward, 105 N. Y. 68, 11 N. E. 373. But, if a way may be found to preserve what is essential and legal, that which is illegal and of minor consequence must not be permitted to defeat the clear purpose of the testator. "The provision that in given circumstances a share shall fall back into the general body of the trust and remain unsevered from the bulk is so subordinate in importance and so separable in function that we are at liberty to cut it off and preserve what goes before." Matter of Horner's Will, 237 N. Y. 489, 495, 143 N. E. 655, 656. If what goes before the contingent limitation of a possible part of a child's share by more than two lives in being is cut off and 1137 N. Y. S. 1002. brothers and sisters does not affect the legality of the trusts in favor of the existing children and their issue. Schettler v. Smith, 41 N. Y. 328; Matter of Colegrove, 221 N. Y. 455, 117 N. E. 813; Church v. Wilson, supra; Matter of Mount, 185 N. Y. 162, 77 N. E. 999. In Matter of Wilcox, supra, the dominant purpose of the testator was to provide for his daughter Frances and her issue. In carrying out this purpose he ran into the statute. It was held that the gift over, although valid in itself, was invalid for the reason that the subsequent passing out of an intermediate life could not be considered as removing the invalid suspension. The case is clearly distinguishable. The future estates, the validity of which is now in question, are the contingent estates which do not vest until after the termination of the second life. With their validity the court is not now concerned. The court deals not with academic or abstract questions as to what may happen. No child has died without issue. The will is to be read in the light of what has happened, not so much for the purpose of determining its validity, as for the purpose of |