
    ENOS T. SIMPSON and another, Executors, etc., Respondents, v. ESTHER ENGLISH and others, Appellants.
    
      WiU — comto'uction of— Accumulation — dweetions for — when void.
    
    The ninth clause of the will of the plaintiff’s testator, was as follows: “I further bequeath to my children, after paying all the above legacies and my just debts, all interest that may accrue on the balance of my estate, to be divided between them at the age of forty years, to hold for their natural lives and then to be divided between their heirs.” Held, that the provision for the accumulation of the income of the estate was void, as it extended beyond the minority of the children; and held further, that the provision could not be held void in so far as it required the accumulation to extend beyond the minorities of the respective children, and effect be given to the residue, for the reason that it provided for a suspension of the power of alienation' for more than two lives in being at the time of the creation of the estate.
    Appeal from a judgment, entered upon the trial of this action at Special Term.
    
      The action was brought by the executors of Myron J. English, deceased, to obtain a judicial construction of his will. The only question before the court, was as to the validity of the ninth item of the will, which is given in full in the opinion of the court.
    
      JET. B. Selden, for the appellants.
    
      Holmes, Thompson & Spencer, for the respondents.
   E. Daewin- Smith, J.:.

The cardinal rule in the construction of wills, is to seek the intention of the testator, and give effect to such intention, if not inconsistent with the rules of law.

The difficulty and doubt in respect to the will of the testator in this case, relates to the section or provision of said will, numbered therein as ninthly, which is as follows : “ I further bequeath to my children, after paying all the above legacies and my just debts, all interest that may accrue on the balance of my estate, to be divided between them at the age of forty years, to hold for their natural lives and then to be divided between their heirs.” The testator left three children, which, at his decease, were under age, all of whom appear and answer in this action, by guardian ad litem,, by answer dated May 3d, 1873. The learned judge who tried this cause at Special Term, held, that all the residuary estate and interest, remaining after paying debts, annuities, legacies and bequests, referred to in said ninth clause of the will, vested in the said testator’s said three children, upon his death, as tenants in common, each having an undivided third part thereof, for his or her natural life, and no more, with remainders over to the heirs-at-law of such children, respectively. If this be so, and these children took any present estate under said will, it was subject to a power in trust in the executors, to control the property and receive the rents and profits thereof, and to accumulate' the same till the said children should arrive at the age of forty years, when the amount or balance of such increased accumulation, was to be divided between them, and they were thereafter to' receive such increase during their natural lives, and, upon their decease, the remainder was to go to their heirs, and was to be divided between them. This was the clear intent of this provision of the will. This provision for the accumulation of the income of such estate, was clearly void beyond the majority of said children, respectively, under the provisions of sections 37 and 38, of article 1st, chapter 1, part 2, of the Revised Statutes, page 726. This provision for the accumulation of the income of the estate, might be held void after the said children respectively arrived at their majority, and effect given to the residue of the will, except that the suspension of the power of alienation of said estate, would then be for more than two lives in being at the time of the creation of such estate, which would make this clause of the will void, within the provisions of sections 13, Id and 15, of said title and chapter of said statute, and the absolute ownership of such estate, if personal, within section 1, title d of said statute, page 773. This provision of the will was therefore clearly void, and must be so declared, and the judgment at Special Term, so far as it holds otherwise, should be reversed. Regarding this residuary clause of the will as void, there is nothing in the will to charge upon the real estate, embraced in such residuary clause, the payment of the legacies contained therein. The personal estate is the proper fund for the payment of debts and legacies, and no power can be implied in the executors to sell the real estate.

The judgment of the Special Term should therefore be modified in conformity with these views.

Present—Mullin, P. J., Smith and Gilbert, JJ.

Judgment modified accordingly. 
      
       Parks v. Parks, 9 Paige, 117.
     
      
       Knox v. Jones, 47 N. Y., 390.
     
      
       Myers v. Eddy, 47 Barb., 263; Lupton v. Lupton, 2 John. Ch., 614.
     
      
      
        Vide Matter of the Will of Fox, 52 N. Y., 530.
     