
    Mary A. Underwood et al., App’lts, v. Harriet S. Curtis et al., Individually and as Ex’rs, Resp’ts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed October 6, 1891.)
    
    1. Will—Equitable conversion—Time of sale.
    By testator’s will the executrices were directed to sell all of the real estate, and the time of sale rested in their discretion. They were authorized to sell a part or the whole of the real estate at once, and they were not required to make the sale until ten years after the death of testator’s widow. Held, that it was the intention of the testator that the conversion into personal property should he deemed to take place at his death.
    3. Same—Perpetuities.
    Testator directed that the income of all his property should he devoted to the use of his wife and two unmarried daughters during the lifetime of his wife, then one-fourth to each of two daughters and the remaining half to be held by the executrices, in trust, for the benefit of his two married daughters, the income of one-fourth to be paid to each during life and .after death the principal to go to her heirs. The trust estate was to be held by the executrices until ten years should elapse after the death of testator’s wife, unless they should before that time exercise the power of sale. Held, that testator had attempted to create a trust term embracing the whole estate not founded on lives, but on one life and an indefinite period thereafter, which may be of ten years’ duration.
    8. Same.
    Within the rule, the trust created for the life of testator’s widow should be permitted to stand and the testator held to have died intestate except as to the estate created for her life.
    4. Same—Partition.
    Partition could not be had, under the circumstances, because the testator had converted his estate into personalty and vested the legal estate in th.e trustees during the lifetime of the widow, and until her death a division of the property could not be decreed.
    Appeal from a judgment of the general term of the supreme court, fourth department, entered on an order affirming a judgment of the special term dismissing plaintiff’s complaint, and brings up for review the order of the general term reversing an interlocutory judgment overruling the demurrer interposed by the defendants and decreeing partition or sale of the premises described in the complaint.
    This action was brought to partition certain lands of which Palmer H. Curtis died seized. He left him surviving a widow and four daughters, two of whom are the plaintiffs in this suit. Curtis left a last will and testament, and a codicil thereto that have been duly admitted to probate, by which he undertook to make a testamentary disposition of the lands in controversy in such manner as to prevent the plaintiffs from receiving any portion of the principal of his estate.
    The plaintiffs claim that the will and codicil by which the testator sought to accomplish such purpose are inoperative, because in contravention either of the statute against perpetuities, cr the statute relating to accumulations of personal property and expectant estates in such property, because the alienation or absolute ownership of his property is thereby suspended for a longer period than during the continuance of not more than two lives in being-at the creation of the estate.
    The will was executed September 13, 1879, and its provisions so far as material are as follows:
    “After all my lawful debts are paid and discharged, I give and. bequeath to my four daughters, Helen C. Waters, Harriet S. Curtis, Mary A. Underwood and Theresa L. Brown, all my household furniture, family pictures and books, etc., to be equally divided between them by my executrices herein named, but said household furniture, family pictures, books, etc, shall not be so-divided during the lifetime of my wife Fanny Curtis, and my wife- and my said daughters, Helen C. Waters and Harriet S. Curtis, shall have the use, benefit and control of the said household furniture, family pictures, books, etc., until the death of my said wife, free from charge.
    “I give and bequeath unto two of my daughters, viz: Helen-0. Waters and Harriet S. Curtis, two horses, two sets of harness, two carriages and two sleighs.
    “ I give and bequeath unto my wife, Fanny Curtis, and unto my daughters, to wit, Helen 0. Waters and Harriet S. Curtis, the use, proceeds, income and benefit of all the rest, residue and remainder of my estate, both real and personal, to share and share alike therein, during the lifetime of my said wife, Fanny Curtis, and the-provisions herein made for my said wife shall be in lieu of dower, providing she shall accept the same. And, upon my death, my said executrices are hereby authorized ■ and empowered to enter upon, into and take possession of all my estate, both real and personal, and hold, use and keep the same, or rent the same, for the sole use and benefit of and for my said wife and my two daughters, the said Helen C. Waters and the said Harriet S. Curtis, until the death of my said wife.
    “ My said executrices are hereby fully authorized and empowered, during the lifetime of my said wife, or at any time thereafter, to sell, grant, bargain and convey by contract, or good and sufficient deed or deeds, all or any of the real estate, lands or •hereditaments of which I shall die seized, for such price or prices,, and upon such terms and conditions as to my said executrices-shall seem meet, the proceeds of such sale or sales to be held by them for the use.and benefit of my said wife, and the said Helen C. and Harriet S., during the lifetime of my said wife, as herein-before expressed; said executrices are hereby authorized and empowered to rent any or all of said real estate during the life of my said wife.
    “ Upon the death of my wife, the said Fanny Curtis, or at such times thereafter as my said executrices shall deem meet, and within, ten years after the death of my said wife, I direct that my said estate, real and personal, be divided by my said executrices into-four equal shares or portions; that one of said shares or portions shall be given to and be the absolute property of my daughter, Helen C. Waters; that one of the said shares or portions shall be given to and be the absolute property of my daughter, Harriet S. Curtis; the remaining two shares. or portions of my estate I give and bequeath, to my said executrices, in trust, for them to hold and invest in good, permanent, well paying securities, and the use, income and proceeds of one of said shares or portions are by them to be paid to and for the use and benefit of my daughter, Mary A. Underwood, during the lifetime of my said daughter, Mary A. Underwood, and upon the death of my said daughter, Mary A, the share or portion last aforesaid shall belong absolutely to her heirs at law. In case of sickness or any other misfortune during the lifetime of said Mary A., my said executrices are hereby authorized to pay over to said Mary A, for her use and benefit (should Mary A, need the same), out of the principal of the said share or portion hereinbefore set apart for the use and benefit of said Mary A. such sum or sums of said share or portion as to my said executrices shall seem meet; but such payments shall not, in the aggregate, exclusive of the use and benefit or income of said share or portion hereinbefore directed to be paid to said Mary A., exceed the sum of two hundred dollars in any one year. The use, income or proceeds of the remaining share or portion of my estate is, by said executrices to be paid to and for the benefit and use of my daughter, Theresa L. Brown, during the lifetime of my said daughter Theresa L., and upon her death the share or portion last aforesaid shall belong absolutely to her heirs at law. In case of sickness or any misfortune during the lifetime of said Theres'a L., my said executrices are hereby authorized to pay over to said Theresa L., for her use and benefit (should said Theresa L. need the same), out of the principal of the said share or portion hereinbefore set apart for her use and benefit, such sum or sums of said share or portion as to my said executrices shall seem meet, but such payment shall not in the aggregate, exclusive of the use and benefit of said share or portion hereinbefore directed to be paid to said Theresa L., exceed the sum of two hundred dollars in any one year. And my said executrices are hereby authorized and empowered to sell, convey, to convert into money any or all of my estate, real and personal, for the purpose of making the division above named, and for that purpose they are given the said ten years in which to make the said division, so that my estate may not be sacrificed, but it is my will that my daughters Mary A. and Theresa L. shall have the income from the share or portion of my estate named for them, and for their use and benefit, from the death of my said wife, to be paid to them from that date, at least once yearly. Likewise I make, constitute and appoint my daughters Helen 0. Waters and Harriet S. Curtis to be the executrices of this, my last will and testament, hereby revoking all former wills by me made, and having full confidence in my said executrices, they nor either of them shall be required to give any bond or security for the execution of said will or the trust herein created.”
    Subsequently and on the 7th day of June,' 1882, Curtis duly executed a co.dicil to his will, which reads as follows :
    “ Whereas, I, Palmer H. Curtis, of the city of Syracuse, Onondaga county, and state of New York, did, on the 13th day of September, 1879, make, subscribe and publish my last will and testament in words and figures as therein expressed ; now, therefore, I, said Palmer H. Curtis, do make this codicil to my said last will and testament as follows: I give and bequeath to my four daughters, Helen C. Waters, Harriet S. Curtis, Mary A. Underwood and Theresa L. Brown, all my household furniture, goods, family pictures and books, to be equally divided between them by my executrices in said will appointed as in said will directed.
    “ Said household goods, furniture, family pictures and books shall not be divided during the lifetime of my wife, Fanny Curtis, nor until my executrices shall sell and convey all the real estate of which I shall die seized, and my said wife, Fanny Curtis, and my said daughters, Helen 0. Waters and Harriet S. Curtis, or any one, or either of the three who shall survive the other, shall have the use, benefit and control of said household goods, furniture, family pictures and books, absolutely free from all charges, until the death of my said wife and until the further time when the real estate of which I shall die seized shall be all sold and conveyed by my said executrices, not to exceed the ten years named in said will.
    “That my two married daughters, to wit, Mary A. Underwood and Theresa L. Brown, shall not have the interest, benefit or income from the share or portion of my estate named for them and for their benefit in said will until the death of my said wife, Fanny Curtis, but said interest, benefit or income shall belong absolutely to my said wife and two other daughters, to wit, Helen C. Waters and Harriet S. Curtis, until the death of my said wife, share and share alike.
    “If, upon the death of my said wife, Fanny Curtis, all the real estate of which I shall die seized-shall not then have been sold ■and conveyed as in said will provided, then, and in that event, said two married daughters, to wit, Mary A. Underwood and Theresa L. Brown, shall not have the interest, benefit or income from the share or portion of my estate named for them and for their benefit in said will, until said executrices shall sell and convey all the real estate of which I shall die seized, but the said interest, benefit and income named in said -will for said Mary A. Underwood and Theresa L. Brown shall belong, absolutely, to my two other daughters, to wit, Helen C. Waters and Harriet S. Curtis, or to the one who shall survive the other, until such time as the real estate of which I shall die seized shall bé sold and not to exceed the ten years named in said will.
    “ This codicil is made to enable my wife and two unmarried daughters to live upon and occupy the said real estate until such time as it shall be sold as in said will provided.”
    
      Charles E. Ide, for app’lts ; M. M. Waters, for resp’ts.
    
      
      
         Affirming 34 N. Y. State Rep., 896.
    
   Parker, J.

The will and codicil are to be construed together .as if they were one instrument, Ward v. Ward, 105 N. Y., 68; 6 N. Y. State Rep., 798, and in the construction now to be made we shall consider first, whether the instrument operated to convert testator’s real estate into personalty. It has long been the established rule that where executors are clothed with the power and duty to sell a testator’s real estate and distribute the proceeds in the manner provided by the will that the real estate will be deemed converted into personalty. Everitt v. Everitt, 29 N. Y, 89; Power v. Cassidy, 79 id., 602. A consideration of the principles which led courts of equity to lay down this rule need not be indulged in, in view of the long line of authorities establishing that property which passes by an instrument, whether will or contract, takes on the character which such instrument has impressed upon it.

It is necessary of course that the direction to convert be positive and explicit irrespective of all contingencies and independent of all discretion on the part of a donee of the power. Turning to the will and codicil it will be observed that the testator commanded the executrices to sell all his real estate, and not until the happening of that event is any distribution of the avails authorized.

There are other provisions relating to the disposition of income and postponing division of proceeds until after the death of testator’s widow, but they need not be considered in this connection, for we are now only concerned in ascertaining whether it was the intent of the testator that all of his real estate should be converted into money and the avails distributed as personal estate.

That such was his intention is apparent from the provision already alluded to, taken in connection with the direction that after the death of testator’s widow and the sale of all the real estate, the proceeds thereof, with all personal estate not specifically bequeathed, shall be divided into four equal shares, one of which shall be given to Helen 0. Waters, another to Harriet S. Ourtis, and “the remaining two shares, or portions of my estate, I give and bequeath to my said executrices in trust for them to hold and invest in good permanent, well-paying securities, and the use, income and proceeds of one of said shares or portions are by them to be paid to and for the use and benefit of my daughter, Mary A. Underwood,” and a like disposition of the other share for the benefit of Theresa L. Brown.

Respondent’s counsel insists that the conversion will not take place until the land is actually sold, unless the executrices fail to execute the power within the limitation prescribed by the testator, in which event it will be deemed to take place as of the time when the sale is. imperatively required to be made, which is at the end of ten years after the death of testator’s widow, and he cites in support of his position, Savage v. Burnham, 17 N. Y., 561.

Whether the conversion shall be deemed to take place on the death of a testator, or at some later period, depends on his intention, as manifested by the provisions of the will.

If it provides in terms that a sale shall be made at some specified future time, or creates a trust with direction to sell only on the happening of a designated event, which might or might not happen, then the conversion would only take place on i.ts occurrence, otherwise the general rule is that real estate will be deemed converted into personalty as of the date of the death of a testator. Pomeroy’s Eq. Juris., vol. 3, § 1162 ; Fisher v. Banta, 66 N. Y., 468.

In Moncrief v. Ross, 50 N. Y., 431, the sale was directed to be made after the death of testator's mother, and the court held that it was clearly the intention of the testator that the conversion should not take place until the happening of that event.

So in Savage v. Burnham, supra, cited by respondent, the will provided that the sale should not take place until after the death of testator’s widow, and it was held that the character of the estate would not be regarded as subjected to the change provided form the will until such occurrence, and in the argument supporting that conclusion the court said: “ Thus, in the present case the real estate is to be sold and the proceeds to become personalty after the decease of testator’s widow and not before. When that period arrives the estate will be deemed to undergo the change directed by the will, whether then actually sold or not. Until then the testator not only contemplated no change, but on the contrary forbid it.”

Now in this will, as modified by the codicil, the time of sale is not necessarily postponed to a specified future time, or until the happening of any event. The executrices are directed to sell all of the real estate, and the time of sale rests in their discretion. They are authorized to sell a part or the whole of the real estate at once, and they are not required- to make the sale until ten years after the death of testator’s widow. It will readily be seen, therefore, that the language of the testator does not indicate an intention to make this an exception to the general rule that a conversion must be deemed to take place at a testator’s death.

The decision of this court in Robert v. Corning, 89 N. Y., 225-239. seems to render further discussion unnecessary, as it is not seen how this feature of the two cases can be distinguished. In Robert's case the testator required his executors to sell all his real estate, but authorized them, in their discretion, to delay the sale for a period of-three years. And the court held that this was an absolute conversión of the real estate into personalty as of the time of testator’s death, the several distributees taking their interests as money, not as land.

In this case the testator also authorized a delay in making sale, and for a longer period it is true, but the fact that more time was given in which the donees of the power to sell could exercise their discretion does not affect the situation.

On the death of the testator, then all of his property became, for the purposes of testamentary disposition, personal estate, and - in the further consideration to be given to the questions presented, it must be steadily borne in mind that while frequent reference may be made to the provision relating to a sale of the real estate, and the time within which it is required to be done, still in legal effect the sale is of personal property. The will converted the real estate into personalty, and the same instrument now directs the executrices to convert such property into money for the purposes therein designated.

We are thus conducted to a consideration of the question whether the provisions of the will and codicil relating to the disposition of the estate are in contravention of that part of the re-' vised statutes which provides that “ the absolute ownership of personal property shall not be suspended by any limitation or condition whatever for a longer period than during the continuance and until the termination of not more than two lives in being at the (íate of the instrument containing such limitation or condition ; or if such instrument be a will, for not more than two lives in being at the death of the testator.”

An examination of the will discloses that the testator, at the time of its execution, intended first, to have the income of all his property devoted to the use of his wife find two unmarried daughters, during the lifetime of his wife; second, that thereafter his two unmarried daughters should each receive one-fourth of his entire estate; the remaining one-half to be retained by the executrices in trust for the benefit of his two married daughters, the income of one-fourth to be paid to each during life, and after death the principal to go to her heirs.

The two unmarried daughters were appointed executrices, and authorized in their discretion to sell all the lands of testator either during the lifetime of testator’s widow or subsequently. Within ten years after the death of testator’s widow, they were directed to divide all the estate, both real and personal, into four equal shares or portions, for distribution in the manner already alluded to. The testator declaring that his purpose in allowing the executrices ten years before requiring them to make a division was to prevent a sacrifice of the estate.

He further provided that during such time as should elapse between the date of the death of his widow and the division, that his married daughters should have the income from the share or portion of the estate named for them, the income to be paid to them at least once a year. The important modifications of the will effectuated by the codicil are three in number. First, it commands the executrices to sell all the real estate, but authorizes them to exercise their discretion whether a sale should be made during the lifetime of testator’s widow, or during a period of not exceeding ten years thereafter. Second, it provides that the division shall not take place until after the real estate shall all have been sold. Third, it declares that until such sale and distribution, the married daughters shall not have the interest, benefit or income from the portion of the estate as provided in the will, but it shall belong absolutely to the widow and two unmarried daughters during the widow’s life, and after her death and until the distribution to the two unmarried daughters.

The will as modified by the codicil, therefore, manifests the purpose and intention of the testator to be, 1. That his executrices shall take possession .of the entire estate and convert the real ■estate into money at such time as they shall deem proper, during a period not exceeding ten years after the death of testator’s widow. 2. That during the lifetime of the widow, and until the real estate is sold, the executrices shall collect the interest and income of the estate, and apply the same to the use and benefit of the widow and executrices, or the survivor of them, and after her death to the use and benefit of the executrices, or the survivor of them.

8. That immediately thereafter the estate shall be divided into four equal shares, one of which each of the executrices shall receive personally. The remaining two shares to be retained by the executrices in trust, the interest and income of one of such shares to be paid to Mary E. Underwood during her life, and at her death the principal to go to her heirs-at-law; and the interest and income of the other share to be paid to Theresa L. Brown during life, and at her death the principal to be paid to her heirs-at-law.

Having ascertained what disposition the testator intended to make of his property, we are to determine whether such disposition is in accordance with law. It will be observed that there was not in terms a devise or bequest to the executrices in trust, but the testator converted his real estate into personalty,, directing the executrices to effectuate his purpose by a sale of the lands. Such estate he authorized them to enter upon and take possession of, collect the income and interest thereof, apply the proceeds for the use and benefit of the widow and executrices for a prescribed term, and at the expiration thereof make division of the avails in the manner directed.

Thus was vested in the executrices in trust the legal estate of all testator’s property. Ward v. Ward, 105 N. Y., 68; 6 N. Y. State Rep., 798; Marx v. McGlynn, 88 N. Y., 357-875; Vernon v. Vernon, 53 id., 351; Leggett v. Perkins, 2 id., 297. And it must continue to reside in them until the purposes of the trust, if legal, shall be accomplished.

The objects of trusts concerning personal property are not defined by statute, but they may be created for any of the purposes for which a trust in lands is authorized by statute, subject to the statutory rule against the suspension of ownership for not more than two lives in being at the death of the testator. And if a trust be created by which the possession of personal property and the legal estate therein is vested in the trustees during the continuance of the trust, an absolute ownership of personal property is suspended within the meaning of the statute. Converse v. Kellogg, 7 Barb., 597. The absolute ownership of personal property being suspended by the creation of a trust in the same manner as alienation of real estate. Hone v. Van Schaick, 7 Paige, 233; Graff v. Bonnett, 31 N. Y., 9 ; Cutting v. Cutting, 86 id., 522; Genet v. Hunt, 113 id., 158-168; 22 N. Y. State Rep., 774.

And the duration of the suspense, in a trust of personal property, like a trust in real estate, must be founded on' lives. Ho term of years however short will satisfy the statute. Schettler v. Smith, 41 N. Y, 328,

Every trust has three elements, closely connected it is true, but nevertheless susceptible of independent consideration. These are the trust property, the trust objects and the trust term. The statute under consideration deals only with the last. The trust objects in this case are the widow and two unmarried daughters,, to whom, or the survivors of whom during the continuance of the trust is to be paid the income of the property.

The fact that there were in being at testator’s death three persons to whom or to the survivors of whom the income was to be paid, does not bring the trust within the condemnation of the statute, for there may be as many beneficiaries of the income of a trust as the testator may see fit to designate, provided the duration of the trust term does not extend beyond two lives in being at the time of his death. Crooke v. County of Kings, 97 N. Y, 421. In this case the trust term was not made dependent in any degree whatever upon the duration of the lives of the executrices or either of them. They were trust objects, entitled to share in the income, but not in any sense term measurers.

In the consideration of the duration of the trust term as to the whole of the estate, and the trust term for one-half of the estate after division, we will first refer to the position of the respondents.

They concede that a trust was created comprising the entire estate, to continue during the life of the widow, but insist that on the happening of that event the active trust is to cease, and the executrices thereafter are to act under a power in trust, which requires them to convert the land remaining unsold into money, for the purposes of distribution in the manner provided by the will. That from the time of the division there is a further trust embracing one-fourth, to last during the life of Mary A. Underwood. And a like trust as to another one-fourth, to continue until the death of Theresa L. Brown. They urge that the period which may intervene between the death of the widow and that of Mary A. Underwood, or Theresa L. Brown, should be carved out of their respective lives, thus limiting the duration of the suspension of ownership of any portion of the estate to two lives.

Robert v. Corning, 89 N. Y., 225, is invoked by respondents as an authority for the proposition that the authorization to sell at any time within ten years after the death of testator’s widow is not a suspension of the power of alienation, because the power of sale was not fettered by the discretion conferred by the will.

But that question is not before us, and its consideration only tends in the direction of confusion, for as we have already observed, for all testamentary purposes, the estate must be treated as personalty, and we are only concerned in ascertaining whether it was the intention of the testator to create a trust of personalty for a term condemned by statute. In Robert's case there was not a trust term created of which the power of sale was an incident.

In Manice v. Manice, 43 N. Y., 303, the executors were only given authority to apply the income during the lifetime of testator’s widow, and the trust was therefore limited to the period during which they were directed to be applied.

But in this case it is conceded that a trust was created to continue during the life of the widow, and it is difficult to suggest any reason for holding that the testator did not intend a trust to last not only during the lifetime of the widow, but for an indefinite period thereafter, not exceeding ten years. And it may be observed that the effect of the codicil is to encourage them in the direction of delay, because until finally sold they are made the beneficiaries of the income of the entire estate. The executrices were not only put in possession of the whole estate with authority to use and invest, but such possession is to continue after the death of the widow, and until the time of division. During the period that may elapse, between the time of the widow’s death and the division, as well as before, they are to collect and receive the income. And also during that time, as before, they are to apply all the income to the trust objects.

During the lifetime of the widow the beneficiaries of the income of the trust fund are the widow and the unmarried daughters, or the survivor of them, and after her death the unmarried daughters, or the survivor of them. The power of sale can be exercised by the executrices in whole or in part, either during the life of the widow or within ten years thereafter. And until ten years shall elapse after her death, unless the executrices shall before that time exercise such power, the trust continues. Clearly then the testator has attempted to create a trust term embracing the whole estate, not founded on lives, but on one life and an indefinite period thereafter, which may be of ten years duration.

The fact that the trust as to the entire property may by the action of the executrices be terminated on the death of the widow is of no moment, if events may happen so that such estate may be extended beyond the statutory limitation. In the words of Judge Grover, “to render such future estates valid they must be so limited that in every possible contingency they will absolutely terminate at such period, or such estates will be held void.” Schettler v. Smith, 41 N. Y., 328-334.

It is unnecessary to refer to the cases in which the courts have declared void trusts attempted to be founded for a term measured otherwise than by lives, because in violation of the statute of perpetuities, or the statute relating to accumulations of personal property and expectant estates in such property, but a few cases may be cited which serve to illustrate the various efforts which have been made in the past to avoid, the rigor of the statute.

In Chuikshank v. Home for the Friendless, 113 N. Y, 337; 22 N. Y. State Rep., 738, and People v. Simonson, 126 N. Y., 299; 37 N. Y. State Rep., 371, the trusts were to continue until the legislature should authorize, by appropriate enactment, an incorporation such as testator desired should receive the estate; in Garvey v. McDevitt, 72 N. Y., 556, the duration of the trust was sought to be limited to a period of four years immediately after testator’s death; in Killam v. Allen, 52 Barb., 605, until the payment and extinction of certain mortgages; in Moore v. Moore, 47 Barb., 257, until the reformation of a person, not exceeding three years; and in Thompson v. Clendening, 1 Sandf. Ch., 387, a trust of personalty was created to continue until a sale and distribution of real estate which could not take place until some one of several children became twenty-one years of age, and need not until the youngest child reached majority.

In addition to the trusts already considered, the testator pro-Tided for a trust as to one-fourth of the estate for the life of Mary A. Underwood, and a further trust as to another one-fourth of the estate during the life of Theresa L. Brown. These trusts cannot take effect until after the expiration of the trust which is to terminate when the sale of the real estate takes place. That fact, taken in connection with the farther fact that the trust as to the entire estate for the indefinite period provided for will not be terminated by the death of both Mary A. Underwood and Theresa L. Brown, renders unnecessary any discussion of the suggestion that such indefinite period not exceeding ten years may be carved out of their lives.

Having reached the conclusion that the trust terms sought to be created are in hostility to the statute, we must now consider whether there may- be such a separation of the trusts as will preserve the trust authorized for the life of testator’s widow.

If the provision for the benefit of the widow and the two unmarried daughters, during the life of the widow, is inseparably connected with the other dispositions of the will and a necessary part of the general scheme for the disposal of testator’s property, then it must fall with them and the testator died 'intestate. Benedict v. Webb, 98 N. Y., 460. But where several trusts are created and those which render the entire disposition illegal can be separated and the legal upheld without doing injustice or defeating that which the testator might be presumed to wish, that which is illegal, or which added to others renders the whole illegal, may be cut off and the intention of the testator given effect so far as the statute will permit Kennedy v. Hoy, 105 N. Y., 134; 6 N. Y. State Rep., 787; Van Schuyver v. Mulford, 59 N. Y., 426 ; Manice v. Manice, 43 id., 303.

In Kennedy's case the will directed the application of the income of a trust estate to the support of testatrix1 son and his family during his life; after his death to his surviving children until they reach the age of twenty-one jmars, when the principal was to be divided among them; with other provisions in case of his son’s death without issue. The trusts were held to be separable .and that for the life of the son declared valid.

In Van Schuyver's case the income of testator’s entire estate was given first to his widow during her life; second, after her death to his two daughters during their lives, and then he devised the estate to the issue of such daughters. The courts declared the trusts separable and the provision for the wife valid although the devise over was void.

And within the rule established by those and kindred cases we think the trust created for the life of testator’s widow should be permitted to stand, and the testator held to have died intestate, except as to the estate created for her life. This can be done without in any manner interfering with the general scheme adopted by the testator for the disposition of his property. On the contrary, it is in furtherance of his wish to as great an extent us the courts may be permitted to go.

It is apparent that his primary purpose was to provide that his widow and unmarried daughters should have the use of his entire estate during the widow’s life. Subsequently he concluded to give the unmarried daughters the benefit of such use for an indefinite period, but while effect cannot be given to such subsequent intention, it may and should be given to the first.

The conclusion thus reached requires an affirmance of the judgment dismissing the complaint by which is sought either a partition or a construction of the will.

Partition cannot be had because, in the view we have taken,, the testator has converted his estate into "personalty and vested the legal estate in the trustees during the lifetime of the widow, and until her death a division of the property cannot be decreed.

Respondent cites Chipman v. Montgomery, 63 N. Y., 221, as an authority for the assertion that the plaintiffs cannot maintain an action to construe the will because they claim in hostility to-it, asserting its invalidity.

As testator’s estate became personalty at the moment of his death, C hipman's case may not be applicable to the situation presented, for courts of equity will often take jurisdiction to construe a will involving the disposition of personalty, where they would refuse if a judicial construction was sought for the mere purpose of determining title to real estate. Wager v. Wager, 89 N. Y., 161.

The reason for it is found in the fact that an executor is regarded as a trustee of the personalty which he holds in trust for the legatees or beneficiaries so far as it is disposed of by will, and as to the residue for those entitled to it under the statute of distributions. Bowers v. Smith, 10 Paige, 193. And courts of equity have ever regarded the supervision of trusts and trustees as peculiarly objects of equitable cognizance.

But we need not inquire whether a complaint might have been so framed as to have authorized a court of equity to assume jurisdiction to construe the will, at the instance of next of kin, claiming in hostility to its provisions, for as complete relief can in due time be obtained in surrogate’s court, the court was authorized on that ground, in the exercise .of its discretion, to decline jurisdiction. Wager v. Wager, supra. And if it should be determined that it might have construed the will, we should be obliged to assume that in the proper exercise of its discretion it. declined to do so, for there is nothing in the record to show that, the complaint was dismissed because of want of jurisdiction.

Whether the court best exercised the discretion belonging to it is not a proper subject of inquiry here, but if it were, reasons could readily be assigned sustaining such position.

The judgment should be affirmed.

All concur, except Vann, J., not sitting.  