
    Charles T. Duncklee, as Executor and Trustee of the Estate of John G. Butler, Deceased, Respondent, v. Francella Butler and Others, Appellants, Impleaded with J. Arthur Butler.
    
      Will — valid, separable from invalid, limitations—accumulation of income— intestacy.
    
    A testator by the 3d clause-of his will gave to his executor the sum of $25,000, in trust, to pay the income thereof to the testator’s wife during her life, said sum, upon her decease, to become a part of the residuary estate, and to be disposed- of under the 4th article of the will. By the 4th article the testator gave to his executor all the residue of his estate, real and personal, in trust, to divide the same into four equal parts, and apply so much of the income thereof as might be necessary to the support and education of the testator’s four children (three daughters and a son) during their minority, but with this proviso, that as soon as each of his daughters “shall arrive at the age of twenty-one years, said trustee shall pay over to such one so arriving at the age of twenty-one years the net income semi-annually thereafter of one of said equal fourth parts of my said estate during her life, and upon her death shall pay over the principal thereof to her issue, if any; but if she shall die leaving no issue living at the time of her death, then said one-fourth part of my estate shall be added to the portions of my estate held in trust for the benefit of my other children then living, an equal amount thereof to each portion. Should any of my said children die before arriving at the age of twenty-one years, said residue shall be held in trust as aforesaid for the benefit of the survivors of them and administered as above provided, only the number of parts into which said residue shall be divided shall be equal to the number of children then living.
    “When my son, John G. Butler, Junior, shall be twenty-one years of age, said trustee shall pay to him, out of one of the portions of said residue of my estate, the sum of five thousand dollars, and he shall pay the income of the remainder of such portion semi-annually to my said son until he reaches the age of twenty-five years, when he shall pay to my said son the sum of ten thousand dollars, and he shall pay the income of the remainder of said portion to my said son semi-annually until he reaches the age of thirty years, when all the remainder of such portion shall he paid over to him. Should my said son die before reaching the age of thirty years, leaving issue, said trustee shall pay over to such issue all of said portion or part of said trust estate then remaining in his hands ; but should my said son die leaving no issue, then said part of said trust estate, or any unexpended portion thereof, shall be added to the portions held in trust by said trustee for the benefit of my other children then liv- , ing, an equal amount thereof to each portion.”
    In an action brought to obtain a construction of the will,
    
      Held, that the provisions of the 4th clause, “Should any of my said children die before arriving at the age of twenty-one years, said residue shall be held in trust,” etc., were intended to apply to the death of a child occurring during the lifetime of the testator, the words “ said residue” referring to all that portion of his estate remaining after the payment of his debts and legacies, and not to any particular portion thereof in which any one of his children had an interest;
    That the disposition made by the testator of the shares of his daughters in case they should die leaving issue was.legal, and was separable from the subsequent provision that, upon the death of a daughter without issue, one-fourth part of the testator’s estate should be added to the portions of his estate held in trust for the benefit" of his other children then living, an equal amount thereof to each portion; that this latter provision, although it could be legally complied with upon the’death of the daughter first dying without issue, would, upon the death of another daughter without issue, result in placing a further and illegal limitation upon that portion of the share held for the second daughter who had died, which had originally been set off to the daughter who had first died without issue;
    That the same rule applied to the provisions 'in reference to the share of the ’son;
    That the will did not provide for an unlawful accumulation of income, there being no direction as to what should be done with the income that might accumulate during the minority of the infants, which would, under the statute, go to the person entitled to the next eventual estate;
    ‘That the additions provided for in case of the death of a son .or daughter without issue, were confined to the principal of the various portions, and had no reference to accumulations of income;
    That the direction that, upon the death of the son without issue, the “ said part of said trust estate or any unexpended portion thereof, shall be added to the portions held jn trust ” for the testator’s other children then living, referred to that part of the principal which should remain after the payments of $5,000 ?and 810,000 to such son, upon his attaining the age of twenty-one and twentyifive years respectively; ■ -
    
      That the bequest of $25,000 to the executor in trust, contained in the 3d clause: of the will, which was, upon the death of the wife, to be disposed of as part: of the residuary estate under the 4th article of the will, was in contravention of the statute, and that with respect thereto the testator died intestate.
    Appeal by the defendant, Fran celia Butler, from so much of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 31st day of December, 1898, upon the decision of the court, rendered after a trial at the Flew York Special Term, as excludes such defendant, the decedent’s widow, from participation in the undisposed estate of such decedent.
    Appeal by the defendants Jennie G. Butler, Mary E. Butler and James B. Brown, from so much of said judgment as adjudges that upon the death without issue of any child of the testator the fractioti which such child may have received of the share of the predeceased child of the testator is undisposed of under the will, and belongs to the testator’s heirs or next of bin.
    Appeal by the infant defendants, Blanch Jane Butler, Ethel Cole Butler, John G. Butler,' Jr., and Maude Duncklee Butler, by Charles W. Truslow, their guardian ad litem, from the following portions of such judgment: All that portion of said judgment which adjudicates that none of the trusts contained in said will is invalid as unduly suspending ownership or restricting the power of alienation,, but that all of said trusts are legal and valid (but the defendants do. not appeal from said judgment in so far as the trust of $25,000 for the life of the defendant Francella Butler is concerned); and the said defendants appeal from each and every portion of said judgment adjudicating the construction to be given to the 4th paragraph of the will of said decedent; also from that portion thereof which provides as follows : “ And it is further adjudged and decreed that in case all of the testator’s children die before- arriving at the age of twenty-one years, leaving no issue living at the time of their respecive deaths, then the entire residuary estate shall be conveyed and paid over to the defendants, J. Arthur Butler, Jennie- G. Butler and Mary E. Butler, children of the testator’s brother James S. Butler, and to James B. Brown, only child of the testator’s sister Betsey Jane Brown, their heirs and legal representatives, in equal shares, and shall belong to'them absolutely; ” also from that portion thereof referring to the trust fund of $25,000 provided for by the 3d para- . graph of said will, in so far as the same adjudicates the disposition to be made of such funds after the decease of the defendant Francella Butler; also from that portion thereof referring to the life estate in favor of the defendant Francella Butler, which adjudicates “ that the remainder of said property forms a part of the residuary estate to be disposed of in accordance with this judgment and decree.”
    
      Charles W. Truslow, for the infant defendants, appellants.
    
      Otto C. Wierum, Jr., for the defendants Butler, appellants.'
    
      Charles Henry. Phelps, for the defendant Francella Butler.
    
      Albert SUoleney, for the respondent.
   Van Brunt, P, J. :

This action was brought for the construction of the will of John Gr. Butler, deceased. The clauses of the will which give rise to the questions involved are the 3d and 4th. They are as follows:

“ Third. I give and bequeath to Charles T. Duncklee the sum of. twenty-five thousand dollars, but in trust nevertheless, to hold, manage and dispose of as follows: He shall keep said sum invested in good, sound, dividend paying securities, and pay over the net income thereof, semi-annually, to my said wife during'her life, and upon her decease said sum shall become a part of my residuary estate, and be disposed of under article fourth of this my will.
Fourth. I givé and bequeath to Charles T. Duncklee aforesaid, all the residue of my estate, real and personal, but in trust neverthe^less, to be held, managed and disposed of as follows, viz.: He shall divide said residue of my estate into four equal parts, keep the same invested in good, sound, dividend paying securities, and apply so much of the income thereof as may be necessary to • the support and education of my children Blanch Jane Butler, Ethel Cole Butler, Maude Duncklee Butler and John Gr. Butler, Junior, during their minority, but with this proviso, that as soon as each one of my daughters shall arrive at the age of twenty-one years, said trustee shall pay over to such one so arriving at the age of twenty-one years the net income semi-annually thereafter of one of said equal fourth parts, of my said estate during her life, and upon her death shall pay o ver the principal thereof to her issue, if. any, but if she shall die leaving no issue living at the time of her death, then said one-fourth part of my estate shall be added to the portions of my estate held in trust for the' benefit of my other children then living, an equal amount thereof to each portion. Should any of my said children die before arriving at the age of twenty-one years, said residue shall be held in trust as aforesaid, for the benefit of the survivors of them, and administered as above provided, only the number of parts into which said residue shall be divided shall be equal to the number of children then living.
“ When my son, John G. Butler, Junior, shall be twenty-one years of age, said trustee shall pay to him out of one of the portions of said residue of my estate the sum of five thousand dollars, and he shall pay the income of the remainder of such portion semi-annually to my said son until he reaches the age of twenty-five years, when he shall pay to my said son the sum of ten thousand dollars; and he shall pay the income of the remainder of said portion to my said son semi-annually until he reaches the age of thirty years, when all the remainder of such portion shall be paid over to him. Should my said son die before reaching the age of thirty years, leaving issue,' said trustee shall pay over to such issue all of said portion or part of said trust estate then remaining in his hands; but should my said son die leaving no issue, then said part of said trust estate, or any unexpended portion thereof, shall be added to the portions held in trust by said trustee for the benefit of my other children then living, an equal amount thereof to each portion.
“ Should all of my said children die before arriving at the age of twenty-one years, leaving no issue living at the time of their respective deaths, then said trustee shall pay over all said trust estate to the children of my brother, James S. Butler, and the children of my sister, Betsey Jane Brown, or their heirs, in equal shares per stirpes

It is claimed upon the part of the appellants that from the provisions of the will it is evident that the testator attempted to and did create trusts suspending the power of alienation of his real property and suspending ownership of his personal property for periods longer than those permitted by the statute, and that he also directed accumulations of income to be added to and to become a part of the trusts created, and the trusts under the will are so interwoven that they cannot be severed and separated, the unlawful cut off’ from the lawful and the lawful permitted to stand.

Upon an examination of the provisions of the will it is evident that there is attempted to be created trusts in certain portions of the estate of the testator which are in contravention of the statute. But it seems to us that-it is possible to carry out the intention of the testator so far as it is lawful, and to sever those provisions- which are in contravention of the statutes without in any respect infringing upon the intention of the testator in regard to those portions of the will which come within the provisions of the law. In the determination of these questions it seems to be important -to consider tlie last clause of the 1st paragraph of the 4th subdivision of the will. This clause- is as follows: “ Should any of my said children die. before arriving at the age of tw.enty-one years, said residue shall be held in trust, as aforesaid, for the benefit of the survivors of them, and administered as above provided, only the number of parts into which said residue shall be divided shall be equal to the number of children then living.”

It seems to be apparent that the-provisions of this clause were intended to apply to the death of a child during the lifetime of the testator, because the direction of the will in that event is in respect to the ‘‘ said residue,” which residue was that portion of his estate Remaining after the payment of his-debts and legacies — referring, therefore, to the whole of the residue and not to any particular por-. tion in which any one of his children had had an interest.

At the time -of his death the testator left his widow; three daughters and one son, all of which children -were minors. ■ By the 4th subdivision of the will the testator bequeathed to his executor-all -the residue of his estate in trust, to divide the same into four equal portions and to keep the same invested and to apply so much of the income as might be necessary to the support and education of his said four children during their minority, with the further provision that as soon as each -one of his daughters should arrive at the age. of twenty-one years the trustee should pay over to the one so •„ arrived at the age of twenty-one years the net income semi-annually of one of said equal fourth parts of his estate during her life, and-upon her death the trustee was directed to pay the principal thereof-to her issue. ' But if she should die leaving no issue living at the time of her death, then the testator directed that said one-fourth part of his estate should be added to the portions of his estate held in trust for the benefit of his other children then living, an equal amount thereof to each portion.

It is apparent that this clause, so far as it directs a division of the estate into four parts, the ajiplication of so much of the income as might be necessary for the support and education of his daughters, during minority, and the payment of the total income after majority, and in the case of the death of any one of his daughters leaving, issue, the payment over of the principal of her share to such issue,, comes within the provisions of the statute, and it is only, the subsequent clause having reference to the death of a daughter without issue, which in any way contravenes the statute. That clause provides that said one-fourth part of his estate should be added to the portions of his estate held in trust for the benefit of his other children then living, an equal amount thereof to each portion. This provision, upon the death of the daughter first dying without issue,, could be legally complied with because the limitation would only be during the continuance of two lives. But upon the death of another daughter, without issue, no further limitation could legally be placed upon any portion of the share which had originally been set off to the daughter who had first died without issue, and if this, provision is severed from the other trust, then the testator, in that event, would have died intestate as to that portion 'of his estate. This same ruling applies to the portion of the daughter subsequently dying. It is apparent that these trusts are separable, and that the illegal portion can be separated from the legal, and the'intention of the testator carried out, so far as they arc lawful, without, in any respect, doing violence to his expressed will. He had a complete scheme in reference to the shares of his daughters as long as they should be living. He makes a legal disposition of such shares in case they should die leaving issue, and it is only after two daughters have died without issue that there is any transgression of the law in respect to the suspension of alienation, and that only as to a portion, of the residue. ■ It is a well-settled, principle of construction that the intentions of a testator must be carried out as far as possible,, and it is only where illegal trusts are so interwoven with those which are legal that the illegal cannot be severed without affecting the intention of the testator as to the others, that the whole trust will be declared void. In the case at bar, as before stated, it appears that the intentions of the testator, so far as they are legal, are separate and distinct from the subsequent provisions in which the 'illegality arises.

What has already been said with regard to the shares of the daughters applies also to the provisions in regard to the share of the son.

In respect to the. claim that there is an unlawful accumulation of income, we fail to find any provision of the will'which directs any such accumulation. There is a provision that as long as the children are under age the trustees shall apply so much of the income as may be necessary to their .support and education. But there is no direction as to what shall be done with the income which shall have accumulated during the minority of the infants. That, under the statute, would go to the person entitled to the next eventual estate. In reference to the additions provided for in case of the death of a son or daughter without issue at the times mentioned in the will, such additions are confined to the principal of the various portions, and have no reference whatever to the accumulations of income. This is manifest in respect to the daughters, and the only provision in the will as to the son’s share, which gives any coloring to the contention that surplus income is attempted to be included with the principal of any of the portions, is found in the provision : “ Should my said son die leaving no issue, then said part of said trust estate, or any unexpended portion thereof, shall be added to the portions held in trust by said trustee for the benefit of my other children then living, an equal amount thereof to each portion.”

Mow, it is plain that the “said part of my trust estate” whs the share of his son, and' the “unexpended portion thereof” was that part of the principal which should remain after the payment of $5,000 when he became twenty-one, and $10,000 when he became twenty-five.

The only othér portion of the will necessary- to consider is the 3d clause, which gives and bequeaths to his executor in trust $25,000, the net income to be paid to his wife during her life, and which directs that upon her decease said sum should become a part of his residuary estate and' be'disposed of under article 4 of the will. • It is apparent that no limitation upon such portion could legally be placed except for the life of each child, and that upon the death of any child leaving issue his or her interest in the $25,000 would go to the issue by the provisions of the will, and if she left no issue, the directions of the will as to its further disposition were in contravention of the statute, and the testator died intestate in respect thereto.

There is an appeal also by the widow upon the ground that her interests are not properly protected by the decree. It is evident that as far as the testator died intestate the widow would be entitled to her interest, as provided by" statute.

The judgment appealed from should, therefore, be modified so as to conform to the views expressed in the foregoing opinion, and as modified affirmed, with costs to all parties to be paid out of the estate.

Patterson, O’Brien, Ingraham and McLaughlin, JJ., concurred.

Judgment modified as directed in opinion, and as modified affirmed, with costs to all parties, to be paid out of the estate.  