
    NESTER et al. v. NESTER et al.
    (Supreme Court, Equity Term, Ontario County.
    October 4, 1909.)
    1. Wills (§ 450)—Construction—Construction in Favor of Validity.
    The construction in favor of the validity of all the items of a wiil should be adopted where it can be done within the established rules of construction.
    [Ed. Note.—For other cases, see Wills, Cent. Dig. § 966; Dec. Dig. § 450.]
    2. Wills (§ 470)—Construction—Intention of Testator.
    The true intent and meaning of each item of a will should be ascertained from tlie whole instrument.
    [Ed. Note.—For other cases, see Wills, Cent. Dig. § 988; Dec. Dig. § 470.]
    
      3. Wills (§ 587)—Residuary Estate.
    AVliere the remainder of real estate devised to the executors in trust for a specified period is not otherwise disposed of, it becomes a part of the residuary estate to be distributed therewith.
    [Ed. Note.—For other cases, see Wills, Cent. Dig. § 1290; Dec. Dig. § 587.]
    4. Perpetuities (§ 6)—Suspension of Absolute Power of Alienation.
    Testator devised real • estate to his executors in trust “until the arrival of the time herein fixed for my said executors to have their first judicial accounting” if his son F. should live so long, and, if not, then until his death, and during that time apply the rents to. his use, and fixed the time for the first accounting when his son. S. attained the age of 26 years or should die before then, leaving the son B. surviving, then when B. attained the age of 26 or should die before attaining that age, or in case of the death of S. occurring before attaining the age of 26, and B. not living, then within two years after the death of 8. so occurring. Held, that the quoted clause must be interpreted as if it read “until the beginning of the time herein fixed,” etc., and the trust created was not void because of an unlawful suspension of the power of alienation beyond two lives in being.
    [Ed. Note.—For other cases, see Perpetuities, Cent. Dig. §§ 31-39; Dec. Dig. § 6.]
    5. Perpetuities (§ 6)—Suspension of Absolute Power of Alienation. '
    The trust was measured only by the lives of testator’s sons B. and S., and not also by the life of his son F., and hence the trust was not void because of a suspension of the power of alienation during the three lives of F., B., and S.
    [Ed. Note.—For other cases, see Perpetuities, Cent. Dig. §§ 31-39; Dec. Dig. § 6.]
    6. Perpetuities (§ 6)—Suspension of Absolute Power of Alienation.
    Testator devised his homestead and other property to his trustees to receive the rents for the life of his wife, and pay the same to her, and provided that, on the death of his wife at the time of the first accounting provided for in the will, the proceeds should be distributed with the residuary estate among the next of kin, but, if she was then living and died thereafter, then on her death the executors should convert the property into money, and distribute it among his next of kin, and provided that the executors should account when his son S. attained the age of 26 years, or, on his death before that time, when his son B. should attain that age, etc. Held, that the trust was .not void, because in no event was the absolute ownership or power of alienation of the property held in abeyance longer than during the life of the wife.
    . [Ed. Note.—For other cases, see Perpetuities, Cent. Dig. §§ 31-39; Dec. Dig. § 6.]
    7. AVills (§ 473)—Invalidity in Part—Effect.
    AVhere a will created a valid trust for testator’s widow for life, and then provided for an invalid trust after her death, the invalid trust did not affect the validity of the trust for the wife.
    [Ed. Note.—For other cases, see AVills, Cent. Dig. §§ 992-995; Dec. Dig. § 473.]
    8. Perpetuities (§ 6)—Trusts—Suspension of Power of Alienation.
    Testator gave his residuary estate, real and personal, to his executors, in trust to receive the rents until his sons, B. and S., should die or until the youngest of them should attain the age of 26 years, and pay specified sums to the widow and other beneficiaries, including annual sums to children named, until the time should arrive 'for the first judicial accounting, or until their death before that time if they should so die. He provided that the executors should account when his son S. attained the age of 26 years, or should die before that time, leaving his son B. surviving, that when B. attained that age, or should die before attaining that age, or on the death of S. occurring before attaining the age of 26, B. having pre-
    
      deceased, then within two years after the death of S. Held, that the trust created was an express trust, which could not continue beyond two lives, and hence it was not void as suspending the power of alienation beyond the statutory period, and the executors had the title to the realty during that period, and under Personal Property Law (Consol. Laws, c. 41) § 15, the rights of the beneficiaries as to the personalty were inalienable during that period.
    [Ed. Note.—For other cases, see Perpetuities, Cent. Dig. §§ 31-39; Dec. Dig. § G.]
    9. Wills (§ 81)—Partial Invalidity—Effect.
    The invalidity of one provision in a will, which never became operative because of the death of the beneficiary, during the lifetime of testator, does not affect the validity of the remainder of the will.
    [Ed. Note.—For other cases, see Wills, Cent. Dig. § 202; Dec. Dig. § 81.]
    10. Perpetuities (§ 6)—Trusts—Suspension of Power of Alienation.
    A will created an express trust during the lives "of two sons of testator, and provided for a second trust out of the corpus thereof by directing the executors to set apart a sum sufficient to produce an annuity for the widow for life. Held, that the second trust was void because suspending the power of alienation beyond the legal limit of two lives.
    [Ed. Note.—For other cases, see Perpetuities, Cent. Dig. § 202; Dec. Dig. § 6.]
    11. Wills (§ 81)—Partial Invalidity—Effect.
    Where, if a will containing an invalid trust provision for the benefit of the widow of testator should fail, as a whole, the widow would receive a share in the personal estate far greater than testator intended her to have, the invalid provision must be stricken out, and the remainder of the will must stand so as to produce a result in harmony with the disclosed intentions of testator.
    [Ed. Note.—For other eases, see Wills, Cent. Dig. § 202; Dec. Dig. § 81.]
    12. Perpetuities (§ 6)—Suspension of Power of Alienation.
    Where a will creating a trust during the lives of two sons of testator provided for the payment out of the profits of the corpus of an annual sum for the use of after-born children of testator until they attained the age of 21, etc., the trust in favor of the after-born children, though void, because unlawfully suspending the power of alienation beyond two lives, would be upheld until the term of the trust for the lives of the two sons had termináted.
    [Ed. Note.—For other cases, see Perpetuities, Cent. Dig. § 43; Dec. Dig. § 6.]
    Action by Minnie J. Nester and others- against Harold A. Nester and others for a Judicial construction of the will and codicils of Samuel K. Nester, deceased, and adjudging the same void as to certain provisions therein.
    Judgment construing will and determining the validity of its provisions.
    Plaintiffs are the widow and four adult children of the late Samuel K. Nester, and they bring this action against Harold A. Nester, the infant son, James N. Rawleigh and others, the infant grandchildren, and the executors of his last will and testament, and the trustees of the trusts therein and the legatees, for a judicial construction of said will and codicils, and adjudging the same to be invalid and void as respects all the provisions thereof, except the pecuniary bequests to testator’s sisters, and that as respects the' rest of his estate testator died intestate, or, in the alternative, if any of the trust provisions thereof are held to be valid, that the extent and duration of the same be determined and adjudged, hnd the trustees directed as to the proper performance of their duties in respect thereof and as to the compensation said trustees are entitled to receive.
    
      Evarts, Choate & Sherman (Thos. .T.'Sherman, of counsel), for plaintiffs.
    Charles A. Hawley (Denis O’Brien and Edwin A. Nash, of counsel), for defendants Sanford and David S- Nester.
    James R. Knapp, for defendants Gerber & Acker, Minnie J. Nester, Sylvia M. Rawleigh, and Byron M. Nester.
    C. Monteith Gilpin, guardian ad litem for infant defendants James N. Rawleigh, Carol J. Rawleigh, Howard W. Nester, and Albert T. Nester.
    Lewis T. Keyes, guardian ad litem for infant defendant Harold A. Nester.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’< Indexes
    
    
      
      For other oases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
    
      
      For other oases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   FOOTE, J.

The testator, Samuel K. Nester, died on the 10th day of January, 1908. His will, and two codicils thereto, were probated on the 25th of January, 1908, and letters testamentary were issued to the plaintiff Minnie J. Nester, his widow, the defendant David S. Nester, his cousin, the plaintiffs Byron M. Nester, his son, and Sylvia M. Rawleigh, his daughter, and the defendant Montgomery S. Sanford. The testator left him surviving his widow, Minnie J. Nester, about 48 years of age, a son, Frederick T. Nester, aged 39, and a daughter, Sylvia M. Rawleigh, aged 35, both children by a former wife and both plaintiffs, and three sons, Byron M. Nester, aged 24, Samuel K. Nester, aged 21, both plaintiffs, and Harold A. Nester, aged 11, a defendant, children by his surviving wife. He also left him surviving four infant grandchildren, the defendants Howard W. Nester and Albert T. Nester, sons of the plaintiff Frederick T. Nester, the first born before, and the second after, the date of the will, and James N. Rawleigh and Carol J. Rawleigh, children of the plaintiff Sylvia M. Rawleigh, the first born before, and the second after, the date of the will. He left an estate inventoried after his death as of the value of about $1,075,000, about $360,000 of which consisted of numerous parcels of real estate in and near Geneva, N. Y., where he resided, and large farms in Dakota and Kansas. He had about $430,000 invested in the malting business aside from the real estate where that business was conducted. The annual income from his real estate is about $10,-000, and from his personal estate about $35,000. At the time of his death he was 68 years of age. His will was executed on the 9th day of May, 1896, the first codicil on the 24th of January, 1905, and the second on the 3d day of May, 1907. These codicils make changes in Ihe executors and trustees named in the will and, revoke some pecuniary legacies, but do not affect the main provisions in question here.

The controversy here is over the legal validity of the trusts created by the will; the claim of plaintiffs being that they all suspend the power of alienation of the real estate and the absolute ownership of the personal property beyond two lives in being at the time of the death of the testator, contrary to statute. It should be noted that the widow and all the adult children join in the attack upon this will,, and that it is defended only by two of the executors and trustees, who receive nothing under the will except the annual salary of $1,000 for one and $1,500 for the other, in lieu of all commissions or other compensation, and by the guardian ad litem for the infant son Harold.

By the first item of his will the testator gives to his executors the house and lot in the village of Geneva, where his son Frederick resides, in trust, to receive the rents, issues, and profits “until the arrival of the time herein fixed for my said executors to have their first judicial accounting,” if his son Frederick shall live so long, and, if not, then until his death, and during that time to apply the same to the use of his said son Frederick. By the eighth item of the will the executors are directed to permit his son Frederick to live in and occupy said house and lot during the time limited for the duration of the trust. By the fifteenth item the executors are authorized to sell this house and lot in the event of Frederick’s death or his entire abandonment of its occupancy, and, in case of such sale, it is provided as follows:

“The avails thereof shall, if the time herein fixed for the distribution of the capital of the estate given in trust by said seventh item shall not have arrived, pass to said executors in trust and be held by them upon the trust in said seventh item defined.”

The remainder, after the termination of the term for the benefit of his son Frederick, is not afterward otherwise mentioned or disposed of in the will. By the seventh item of the will all the testator’s property, real and personal, not otherwise specially disposed of, is given to the executors on certain trusts therein mentioned during the two lives of his sons, Byron and Samuel, or until the youngest shall have attained the age of 36 years. By the tenth item of the will provision is made for an accounting by the executors and trustees upon the termination of this trust of the residuary, and for a distribution of his estate among his next of kin, except in respect to a portion directed to be held to produce annuities for life to his widow of $3,000, and to his son, Daniel Delano, for $600.

The plaintiffs contend that there is an unlawful suspension of the power of alienation of this house and lot beyond the statutory period; the argument being, first, that the time fixed by the tenth item for the first accounting may be beyond two lives in being; and, if not so, then, second, that there is a suspension of thé power of alienation during the three lives of Frederick, Byron, and Samuel. Neither of these contentions is in my opinion well founded. This house and lot is, by the first item of the will, given to the executors in trust “until the arrival of the time herein fixed for my said executors to have their first judicial accounting.” The time for the first judicial accounting is fixed by the tenth item of the will in the following language:

“When my son Samuel shall have attained the age of twenty-six years, or it before then he shall die leaving my son Byron surviving, then, when my son Byron shall attain the age of twenty-six years, or shall die before attaining that age, or in case of the death of my son Samuel occurring before he attains the age of twenty-six years my son Byron be not living, then within two years after the death of my said son Samuel so occurring, my executors shall render to the proper court an intermediate account of their proceedings as such and as trustees under this will.”

It is said that because of the expression “then within two years after the death of my said son Samuel” the time fixed by the testator for his executors to have their first judicial accounting (and so the time fixed for the termination of the trust of the house and lot for his son Frederick) is or may be limited by the two lives of his sons Byron and Samuel, and a term or period thereafter not measured by lives, but by the time within two years within which the executors may render their account.

The principal trusts created in this will are. found in the seventh item embracing the residuary estate. Their validity is attacked upon the same ground, but the question is not precisely the same as will be seen when we come to consider the seventh item. A construction should undoubtedly be made in favor of the validity of this as of all the items of this will, if it can be done within the established rules of construction, and the true intent and meaning of each item of the will should be ascertained from the whole instrument. There appears to be no reason for assuming from anything to be found in this will that the testator intended to create a trust in respect to this house and lot for Frederick to endure for a longer period than the principal trusts embraced in the seventh item of the will covering the bulk of the estate. Moreover, the remainder of this house and lot after the termination of the trust for Frederick, not being otherwise disposed of, becomes a part of the residuary estate to be distributed therewith; so that there was not only no occasion for the trust of this house and lot to endure for a longer time than the trust of the residuary estate, but from the fact that the proceeds of its sale is to be distributed with the residuary estate we should expect the trust term of each to be of the same duration. By the seventh item of the will the trusts in respect to the residuary estate are expressly limited until the testator’s sons Byron and' Samuel shall have died, or until, before such death, the youngest of the two shall have attained the age of 26 years. The language is:

“All the rest, residue and remainder of my property, real and personal * * * I give, devise and bequeath to my said executors, in trust, however, for the following uses and purposes, to wit, to employ so much thereof as they may deem best and for the interest of the estate so given them in trust by this item of my will in continuing the business of malting in which I have been engaged, so long as they may deem best for the interest of such estate, and to such extent as they may deem best for such estate, not longer, however, than until my sons Byron and Samuel shall have died, or until before such death the youngest one of said two sons shall have attained the age of twenty-six years; to receive the rents, issues and profits of my real estate in this item given them in trust which shall not be so employed, and of any real estate they may purchase under my authority herein given, until my sons By ron and Samuel- shall have died or until the youngest one of them living shall have attained the age of twenty-six years; and during the same time to invest and keep invested earning income the personal estate in this item mentioned that shall not be so employed, and from the rents so received and the income produced by the personal property so invested and the profits, if any, that may arise from the conduct of the business I have herein authorized them to carry on [to pay certain specified sums each year to his wife and children and certain taxes and insurance, and the surplus income, if any, to divide annually among his next of kin, etc.]”

The power of the executors to receive the income as trustees continues only “until my sons Byron and Samuel shall have died or until the youngest one of them living shall have attained the age of twenty-six years.” The trust as an express trust continued no longer, and the power of alienation was suspended no longer.

In view of this, what did the testator mean by the expression in the first item, “until the arrival of the time herein fixed for my said executors to have their first judicial accounting” ? Clearly he did not mean until the first accounting was actually had. The proper interpretation in harmony with what appears to have been the testator’s intent is that when his youngest son Samuel (who was 21 years old at the death of the testator) should become 26 years of age, or in case of his death before reaching that age, then when Byron (who was three years older) should become 26 years of age, or, if neither reached the age of 26 years, then on the death of the survivor, the time arrived for the executors to have their first accounting. This accounting the executors were directed to make within two years, in the event of the younger son Samuel dying before he became 26 years of age and of Byron having previously died. If Samuel lived to be 26 years of age, the duration of the trust would be about 5 years, and the executors would know long in advance of his reaching that age the day when the trusts would terminate and the day their duty to account would begin. They could, therefore, make the necessary preparations in advance, which involved, among other things, selling and converting into money a considerable amount of real estate. But, if Samuel’s death should occur unexpectedly before he became 26 years of age, his brother Byron having previously died, then the trust would come to an end at an unexpected time, with no opportunity on the part of the executors to have prepared in advance for their accounting, and it may have been in view of this that the testator provided in this latter event that the executors should render their account within two years. However that may be, there seems to be nothing in this will requiring the construction that the duration of the trust was to be prolonged until the executors saw fit to render their account or have their accounting in the contingency of Samuel surviving his brother and dying under 26 years of age, when it clearly would not be prolonged until the accounting in case the trust was brought to an end by any of the 'other contingencies. I think the intention of the testator was in the first .contingency mentioned to give the executors more time for rendering their account, but not thereby to extend the duration of the trust, and that the expression “until the arrival of the time herein fixed for my executors to have their first judicial accounting” should be interpreted as if it read “until the beginning of the time herein fixed.”

The second objection to the validity of this trust is that it is said to be measured by three lives in being, irrespective of the two-year period within which the executors may have their accounting; • that is to say, the lives of Frederick, Byron, and Samuel. The provision is that this house and lot shall be held in trust by the executors until the arrival of the time fixed for the first accounting “if my said son shall live so long, and, if he shall not live so long, then until his death occurring before that time.” The argument is that here is one life bj' which the duration of the trust is measured, namely, that of Frederick, and, in the case of his death before the first accounting, then by virtue of the seventh item, the trustees will hold the house and lot as a part of the residuary estate during the existence of the general trust created by the seventh item of the will, or during the lives of Byron and Samuel, and So it is said that there may be a suspension of the power of alienation during the lives of Frederick, Byron, and Samuel.

I think, however, the duration of this trust is to be measured by the lives of Byron and Samuel. In no event can it continue beyond the duration of those two lives. The construction should be the same as if-the trust in item 1 were included in item 7, being the residuary trust. ■ •In- that case this house and lot would have vested in the executors in trust to permit Frederick to occupy the same, or to receive the rents and profits during the term of the residuary trust or for his life, if he should sooner die. In that case it would be clear that the duration of the trust would be measured by the two lives-of Byron and Samuel, and not by that of the beneficiary, Frederick.

The second item of the will creates a trust in the executors of another house and lot in favor of the testator’s brother, Franklin Nester, in substantially the same language as that used in the first item. Its validity is questioned upon the same grounds as the trust for the testator’s son Frederick, and what has been said in defense of the first-item will apply here. There is this difference, however, in the language of the two items. The trust in the first item is “until the arrival of the time herein fixed for my said executors to have their first judicial accounting”; while in this item it is “until the time herein fixed for my executors to have their first judicial accounting.” There is no reason apparent or possible to be inferred from anything contained in this will for imputing to the testator an intent to make the trust term here longer than in the first item for his son Frederick, or longer than the general residuary trust, nor does the slight change in phraseology from that used in the first item require a different interpretation. The scrivener no doubt used the reference to the time fixed for the accounting to mark the termination of the trust for convenience and brevity, since a reference to the death or coming to 36 years of age of the two sons as the termination would have required a much longer form of expression to be repeated in each of the items.

By the fourth item the testator devises to his executors his homestead property in Genesee street, in the village of Geneva, and all the furniture, horses, carriages, etc., and also the house and lot on Clinton street occupied by his coachman, “in trust, however, to receive the rents, issues, and profits thereof for and during the life of my wife Minnie, and during that time to pay the same over to my said wife for her own use.” By the tenth item of the will it is provided that, in case his wife Minnie shall not be living at the time of the first accounting provided for in that item, then the proceeds of this property shall be distributed with the other residuary estate among his next of kin, but, if she is then living and dies thereafter, then upon her death the executors shall convert this real property into money, and distribute it among his next of kin. It will thus be seen that in no event is the absolute ownership or power of alienation of this house and lot to be held in abeyance longer than during the life of his widow. But if it be assumed that the death of the wife may occur before the first accounting, arid that the executors are then to hold this house and lot or its proceeds during the same period of time measured by the lives of Byron and Samuel until the time for the first accounting, and that thus the duration of the trust may be measured by those three lives, then clearly the life estate to the wife should not be invalidated, but that part of the trust to continue after her death and until the first accounting should be cut off as invalid. Post v. Hover, 33 N. Y. 593; Harrison v. Harrison, 36 N. Y. 543.

But the principal attack of the plaintiffs is made against the seventh. item, embracing the great bulk of the estate. By that item the testator gives all the rest, residue, and remainder or his property, real and personal, to his executors, in trust to receive the rents, issues, and profits of the real estate until his sons Byron and Samuel shall have died, or until the youngest one of them living shall have attained the age of 26 years, and during the same time to invest and keep invested, earning income, the personal estate, and from the rents of the real estate and income of the personal estate to pay certain specified sums to his widow and children, and to make certain other payments not pertinent to the question which is here presented. Among other payments is one of $2,000 a year directed to be made to his daughter Sylvia “until the time shall arrive for the first judicial accounting herein directed to be made or until before that time she may die”; also a payment to his son Frederick of $3,000 each year “during the same time or until such time before then as he may die”; also a payment to his son Daniel Delano of $600 each year "during that time if he shall so long live.”

The main provisions of the tenth item in reference to the time when the executors are to account and distribute the residuary estate have been already stated, but in addition there is the following provision:

“And if at that time [when Samuel becomes twenty-six years of age or if he dies before that age, the other contingencies mentioned have happened] my said wife and my son Daniel Delano or either of them be living, there shall then be estimated and set apart by my said executors of the property, real or personal, or both, given them in trust by the seventh item of this will, or property which my executors may have purchased with the avails of the sale of any property included in said seventh item, an amount ample in value to produce the income herein directed to be paid to my said wife and son, if both be living, and if both be not living, then to the one of 'them who shall be living, and my executors shall continue to hold the same in trust, to receive the rents from the real estate, invest and keep invested the personal property so retained and set apart, producing income, if my wife be living, so long as she shall live, and'from such rents and income they shall pay to my wife each year during her life the sum of three thousand dollars for her own use and to be absolutely hers; and to my son, Daniel Delano, if he be living, each year until the death of my wife, should he live so long, the sum of six hundred dollars in monthly payments of fifty dollars each. And at the death of my wife, if my said son Daniel Delano be living, my executors shall render to the proper court another intermediate account as such executors and trustees, of their proceedings in the execution of this will, when there shall be estimated of the property so retained and set apart, an amount ample in value to produce sufficient income to enable such executors to pay my said son Daniel Delano annually the sum of six hundred dollars in monthly payments aforesaid, which property so estimated and lastly set apart, said executors shall continue to hold in trust to keep the same invested earning income until the death of my said son, Daniel Delano, and from the rents and income that may be produced thereby, shall pay to my said son, Daniel Delano, each year the sum of six hundred dollars, in monthly payments aforesaid, and the remainder of said property so given in trust by the seventh item of this will, including any that shall have been acquired by my executors as in this will authorized, after taking out the amount so directed to be retained and set apart upon each such intermediate accounting, I direct my executors to distribute to and among my next of kin, except my said son, Daniel Delano, so that each shall take the same proportional share thereof that he or she would be entitled to take of my personal estate had I died intestate. And should the amount of income from the property so directed to be estimated and set apart and retained by my executors, in either case, exceed in any year the amount of income actually directed to be paid therefrom, after taking out the expenses of executing said trust, such excess shall annually be distributed tó and aiqong my next of kin, except my son, Daniel Delano, in the manner hereinbefore directed as to other property directed to be distributed.”

The other provisions of item 10 need not be stated to appreciate the questions presented in respect to the validity of the residuary trust.

It is said, first', that the residuary trust is invalid because the trust term may continue during the lives of Byron and Samuel, which would be the statutory limit,' and for a further term not measured by lives, but by the term allowed to the executors to make their first accounting within two years after the term of the two lives. This objection to the validity of the trust term is not in my opinion well taken for reasons already stated. The seventh item of the will, which creates the trust term in express terms, limits its duration “until my sons Byron and Samuel shall have died, or until the youngest one of them living shall have attained the age of twenty-six years.” I find nothing in the tenth "item of the will fixing the time when the executors shall have their first accounting, which in express terms, or by necessary implication, prolongs the trust term as stated in item 7, or inconsistent with the termination of the trust as there prescribed. It is manifest -that during the time which may elapse after the termination of the trust as prescribed in the seventh item and before the accounting of the executors the trust term will not be continued, but the executors will hold the property only for distribution; their title as trustees having ceased. The testator has, however, seen fit to create at.this time a further express trust in the executors of sufficient of this same property-to cofitinue for his widow the annuity of $3,000 per year- during the remainder of her life, and for his son, Daniel Delano, the annnuity of $600 per year during his life. The son, Daniel Delano, died before the testator; hence, the provision -for him never- became effective, and, if invalid, does not affect the remainder of the will. But the widow is living, and the question is as to the validity of this additional trust created or continued for her annuity, and, if it be invalid, as to its effect upon the will as a whole. The general trust of the residuary is clearly an express trust within the statute as regards the real estate, rendering the property inalienable during its continuance, or, if the power of sale works an equitable conversion, the executors still have the title and the trust is indestructible. As regards the personalty, the trust is equally effective to vest title in the executors, and the rights of the beneficiary are likewise inalienable by statute. Personal Property Law, § 15, being chapter 41 of Consolidated Laws, and prior statutes re-enacted in this law.

The same is true of the additional trust created for the widow’s annuity, and, as the first trust is measured by the two lives of Samuel and Byron, the second trust for the widow’s annuity certainly creates a term in some of the same property for an additional life, namely, the life of the widow, and so the absolute ownership of the personal property and the power of alienation of such part of the real estate as may be set apart to produce the widow’s annuity are suspended beyond the legal limit of two lives prescribed by the statute. But the learned counsel for the executors suggest that this result may be obviated by treating this annuity as a charge only upon the property held to produce it, in which case its present value may be computed and paid off, and thus the corpus of the fund released from the custody of the executors, as was directed to be done in Buchanan v. Little, 154 N. Y. 147, 47 N. E. 970, and People’s Trust Co. v. Flynn, 188 N. Y. 385, 80 N. E. 1098. In those cases the annuity was treated as a charge or lien upon the property from which it was to be produced payable from the property itself or its income. There was in those cases no indestructible trust, as here, and for that reason I think it is impossible to adopt the course suggested. It follows, I think, that the trust for the widow’s annuity beyond the termination of the residuary trust is in conflict with the statute, and' void. .

Plaintiffs contend that this being one of the main provisions of the will for the widow, if it fails, the whole will, or at least the residuary trust, must fall with it, on the ground that the provision for the widow is so substantial a part of the scheme of the will that to permit the remainder to stand alone would produce a result out of harmony with the intention of the testator. The question is certainly a debatable one and is not free from doubt. On the face of the will the testator made no other provision for the support of his widow after the termination of the general trust. He apparently overlooked the fact that she would be entitled to her right of dower in his real estate, notwithstanding his will, for he made no reference to the subject. He left real estate of the value of about $360,000, and by virtue of her dower right the widow will be entitled during life to the income from one-third of this. If the will failed as a whole, she would receive a share in the personal property far greater than the testator intended her to have. It would seem, therefore, that to strike out the invalid provision for her annuity after the termination of the general trust, leaving the remainder of the will to stand, would produce a result more nearly in harmony with the disclosed intentions of the testator. Manice v. Manice, 43 N. Y. 305, 384; Tiers v. Tiers, 98 N. Y. 568. The will should, therefore, be held valid, notwithstanding the void trust attempted to be created for the widow’s annuity after the termination of the general trust.

By the sixteenth item of the will it is provided that, if any child shall be hereafter born to the testator, the executors are directed from the rents, income, and profits arising from the principal given to them in trust by the seventh item of the will, to pay annually to his wife, if living, and, if not living, to the guardian of each such child during his •or her minority, for his or her support and education, the same amount of money directed to be paid by the said seventh item to his wife or to the guardians of his sons Byron and S.amuel, respectively, for the like purpose during their minority. By the seventh item of the will the executors are directed to pay to his wife, or, in case of her death, to the guardians of his sons Byron and Samuel, the sum of $1,000 a year for the support of each of said sons until their death or until they, respectively, attain the age of twenty-one years, and to pay to her or such guardian such further sum each year for the education of said Byron and Samuel as his executors shall deem reasonable, not, however, exceeding the sum of $1,000 a year for each son. The testator’s son Harold was born about seven months after the date of the will, and at the death of the testator he was 11 years of age. It is contended by the plaintiffs that this provision of the sixteenth item of the will for the benefit of this son Harold, he being the only child born after the making of the will, requires a continuation of the trust term in' the executors as to enough of the estate to continue these payments to Harold from the income for about ten years, or until he arrives at the age of twenty-one years, and that such trust will or may endure beyond the trust term created by the seventh item of the will during the lives of Byron and Samuel. Assuming this to be true, although no provision is made by the tenth item of the will for such payment, all the estate being therein directed to be distributed from which .these sums could be paid, it follows, I think, that, if an unlawful suspension would thereby be created, it must be adjudged null and void from and after the termination of the general trust of the residuary. A trust in the executors to produce these sums for Harold after the termination of the general trust is clearly separable from that time. At that time Harold becomes entitled to his distributive share of the whole estate as one of the next of kin, and there is no hardship to him and no interference with the general plan of the will to annul this trust by itself without interfering with the' other provisions of the will.

Findings may be prepared in accordance with these views to be settled upon notice, and upon the settlement of findings other questions proper to be determined within the issues, if any, will be passed upon.  