Holly v. Manhattan Railway Co.

The trust clause in the will of Robert Carnley, deceased, cannot be construed as partly valid and partly invalid. The trust attempted to be created constitutes a scheme which permeates the entire will to such an extent that the will, as a whole, is either valid or invalid in this respect. In either case all the necessary parties in interest are before the court as plaintiffs with others, and the defendant is fully protected by the^decision and the judgment herein. There is no merit in the claim that the judgment is assailable on the ground that there are remaindermen who were not made parties, and that in their absence the court below erred in refusing to assess the permanent damage upon the theory that the plaintiffs, Margaret Ann Holly, Frances Sackett and Emma Holly, are only life tenants.

The findings as to the damages are sustained by the evidence.

Hpon the whole case no error appears which calls for reversal.

The judgment should be affirmed, with costs.

Present: Freedman and Gildersleeve, JJ.

Judgment affirmed, with costs.