
    Jennie L. Brown, Appellant, v. Annie M. Brown and Sebastian Brown, her Husband, Respondents, Impleaded with Others.
    
      Will — a devise to three sons with a provision that the land should remain inviolate and intact for ten years, and in case of the death of any son within that period then to go to the survivors.
    
    A testator devised all his real estate to his three sons “share and share alike, providing, however, that said real estate shall remain inviolate and intact for ■ the period of ten years from the date of my death; and that neither of my said sons shall encumber, dispose of or sell such real property until the expiration of the time hereinbefore mentioned. And in case of the death of any or either of my said sons previous to the said limited time, the proportionate share or shares of either or any of them shall be distributed to the living or surviving brothers.”
    It was conceded that the clause quoted effected a valid devise of the real estate to the testator’s three sons, and that the provision thereof, requiring that the property should remain “ inviolate and intact” for ten years from the .testator’s death and forbidding its alienation within that period, was void and .should be disregarded.
    
      Held, that there was devised a one-third share to each son, in fee, - subject to its being divested or reduced to a life estate by the death of the devisee within ten years after the death of the testator, the power of alienation of any share not being in any case suspended for a period longer than one life.
    Smith, J., dissented.
    Appeal by the plaintiff, Jennie L. Brown, from a judgment of the Supreme Court in the favor of the defendants, Annie M. Brown and another, entered in the office of the. clerk of the county of Ulster on the 21st day of October, 1899, upon the decision of the court rendered after a trial before the court without a jury at the Ulster Trial Term.
    
      John J. Linson, for the appellant.
    
      Howard Chipp, for the respondents.
   Edwards, J.:

There is presented, for construction, the 4th paragraph of the will of John Brown, deceased, which reads as follows :

“Fourth. I give, devise and bequeath to my children, John Brown, Sebastian Brown and Edward Brown, all of the. real estate of which I shall die seized and possessed, share and share alike, providing however, that said real estate shall remain inviolate and intact for the period of ten years from the-date of my death ; and that neither of my said sons shall encumber, dispose of or sell such real property until the expiration of the time hereinbefore mentioned. And in case of the death of any or either of my said sons previous to the said limited time, the proportionate share or shares of either or any of them shall be distributed to the living or surviving brothers; that is to say, that if either of my said sons shall die, the proportionate share or interest he may have in my said real property shall revert to my surviving male children, with the exception, however, that in case my son, Sebastian Brown should die, his share and interest in said real property shall descend and revert to his issue by marriage, and if none, the same to descend tó and be ■owned by Annie M. Brown, the wife of Sebastian, to each of their own use forever.”

The will is dated August 30, 1888, the testator died October 9, 1888, and the will was admitted to.probate November 27, 1888. This action for partition of the real estate mentioned in the will was begun on November 28, 1898, by the plaintiff, one of the children and devisees of John Brown named in the will, who died April 27, 1889. The plaintiff assailed the validity of the entire 1th paragraph, except the 1st clause thereof which devised the teal estate to her father, John Brown, and to his brothers, Sebastian Brown and Edward Brown.

The counsel' agree that in the first part of this paragraph a valid devise to John, Sebastian and Edward Brown is effected, and that the' succeeding provision for keeping the property “ inviolate and intact” for ten years and forbidding its alienation within that period is void and should be disregarded. Here their lines of reasoning diverge, and the controversy arises out of the appellant’s contention that the remainder of said paragraph is invalid and should be rejected.

In the construction of wills it is a cardinal principle that the intention of the testator must be ascertained and must be effectuated, except so far as it is in contravention of law.

The testator owned Ho other real estate than that mentioned in this paragraph of the will. There is no other clause under which such real estate can pass, and it was obviously his primary intention to give this property to his three sons. The subsequent conditions, were secondary to that purpose.

It is also a settled rule of law that effect should be given to each valid provision of a will, and if the will contains any invalid provision, the valid should be separated from it so far as can be done without subverting the general intention of the testator. (Oxley v. Lane, 35 N. Y. 349; Harrison v. Harrison, 36 id. 543; Henderson v. Henderson, 113 id. 1.)

This brings us to the question whether the provision following the one for the illegal suspension of alienation should be preserved. That provision is, in substance, that in case of the death within ten years of either of the three sons to whom the real estate is devised,, his proportionate share should go to the surviving sons, except that Sebastian’s proportionate share, in case of his death within that, period, should go to his children, if any, and, if none, to his wife. Is this provision invalid ? I think it is apparent, from the language of the will, that the testator intended to devise the real estate to liis. sons severally, to give to each an undivided one-third part or share. This intent is evidenced by the language' “ share and share alike,” “ neither of my said sons shall encumber ” ‘‘ the proportionate share or shares of either or any of them.” (Everitt v. Everitt, 29 N. Y. 39; Stevenson v. Lesley, 70 id. 512.) I think, also, the effect of the statute (1 R. S. 727, § 44) is to make the devisees tenants in common of the real estate.

Regarding this as the legal effect of the devise the difficulty in respect to the unlawful suspension of the power of alienation disappears. It was a devise of a one-third share to each, in fee, subject to being divested or reduced to a life estate by the death of the devisee within ten years after the death of the testator. The alienation of each share was not suspended for a longer period than the life of the owner. If he survived the period of ten years his title became absolute; and if he died within the ten years his share immediately vested in the survivors, except in the case of Sebastian, whose share vested in his children, if any, and, if none, in his wife. There could not, therefore, as to each be a suspension of the power •of alienation for a longer period than the • single '.life* arid it might be for a shorter period. The period of the suspension of alienation was not measured by years, but by a single life. This provision was'not a violation of the statute. (Montignani v. Blade, 145 N. Y. 111; Schermerhorn v. Cotting, 131 id. 48.)

This provision is not so involved in the former void provision prohibiting alienation as that it may not be readily separated from it. It does not subvert the intention of the testator, and is secondary to his main purpose, to devise the estate to his three sons. If, as contended by the appellant, it is a part of the scheme to keep the property intact for ten years, it is not an essential part, and as it is not in. itself invalid, it is the duty of the court, under the principles of law, to preserve it and to give to it its legal effect.

It follows, therefore, that John, one of the sons, having died within a few months after his father, his one-third share passed under the will to his surviving brothers; and the plaintiff, as one of his daughters and devisees, derived no title from him.

' The complaint was, therefore, properly dismissed, and the judgment should be affirmed.

All concurred, except Smith, J., dissenting.

Judgment affirmed, with costs.  