This action was brought to obtain a construction of the will of John C. Haug, deceased. He died in the city of New York on the 26th day of September, 1897, leaving him surviving Walburga Haug, his widow, the plaintiff herein, and the defendant Frederick Ludwig Haug, his sons, and the defendant John Walther Hildenbrand, a grandson, the son of testator's deceased daughter, his only heirs at law and next of kin. The defendants Frederick William Haug, John Haug, Chester Amos Haug and George Haug are the grandchildren of the testator and the children of the defendant Frederick Ludwig Haug, and were all infants under the age of fourteen years at the time this action was commenced. The testator left an estate consisting of real property of the value of about $114,000, subject to a mortgage of $12,000, and of personal property valued at $77,000. His will was admitted to probate on the 26th day of May, 1898, and in it he first provides for the payment of his debts and funeral expenses. He then gives to his widow *Page 519 the sum of $1,500, with certain household goods and furniture, to his son Christian his gold watch, to his son Frederick his iron safe, and then directs the investment of $2,000, giving the income therefrom, upon certain conditions, to his grandson Hildenbrand. No question is raised with reference to the validity of these clauses or to the construction that should be placed thereon. The controversy has reference to the 6th, 7th, 8th, 9th and 10th clauses. They are as follows:
"Sixth. It is my will and pleasure and I hereby direct that none of my real estate shall be sold until after the death of my said wife and my two sons.
"Seventh. I give and bequeath the equal one-third part of all the income, rents, issues and profits of all the rest, residue and remainder of my lands and real estate of what nature and kind soever and whatever the same may be at the time of my death to my wife, Walburga Haug, for and during the term of her natural life or so long as she shall remain my widow and not marry again in lieu of dower, the remaining equal two-thirds of the income, rents, issues and profits of my said lands and real estate I give and bequeath to my two sons, Frederick Ludwig Haug and Christian Charles Haug, to be divided among them equally, share and share alike.
"Eighth. Immediately upon the death of my said wife or her remarriage, whichever event shall first happen, I give and bequeath all the income, rents, issues and profits of my said lands and real estate to my sons Frederick Ludwig Haug and Christian Charles Haug to be divided among them equally, share and share alike.
"Ninth. Immediately after the death of my said wife and the death of my said two sons Frederick Ludwig Haug and Christian Charles Haug, I give, devise and bequeath all my said estate, real and personal, to all of my grandchildren, to be divided among them equally, share and share alike, per capita, not perstirpes.
"Tenth. I hereby authorize and empower my executors to rebuild any of the buildings now standing upon any of my lands and which may become destroyed or dilapidated by fire *Page 520 or otherwise, and to use and employ any moneys or funds that may be in their hands belonging to my estate for the purpose of such rebuilding."
The Special Term reached the conclusion that the testator died intestate as to his personal estate remaining after the payment of his debts, expenses of administration and specific legacies; and that he intended to divide his real estate into three parts, one of which he had devised to his widow during life or until she should remarry, then to his two sons for life with remainder of Christian's half to the grandchildren of the testator living at Christian's death per capita, and with remainder of Frederick's half to the grandchildren of the testator living at Frederick's death per capita, and that the other two parts he had devised to his two sons, one part to each during life, with contingent remainders to the grandchildren, as above specified.
The Appellate Division reached a different conclusion. It held that the testator did not die intestate as to his personal estate remaining, but that he intended that its use and income should go to his widow and sons in the same proportion as provided for his real estate and that the grandchildren in being at the death of the testator took vested, instead of contingent, remainders in both the real and personal estate.
We find it difficult to sustain the conclusions reached by either of the courts below. It will be observed that the testator makes no provision for the disposition of his personal estate remaining until after the death of his widow and his two sons, and then he gives it with his real estate to his grandchildren. He creates no trust with reference to his real estate, but attempts to give the income from one-third to his widow during her life or until she shall remarry, and to give the income from the other two-thirds to his sons. He makes no division of the estate between them further than to specify the proportion of the income that each shall receive. He makes no distribution of his estate in case one son dies before the other, but evidently intended that the income of the whole should go to the survivor during life; for it is only *Page 521 after the death of the widow and the two sons that he gives his estate to his grandchildren.
It is conceded that the sixth clause of the will is void as being in contravention of the statute which prohibits the suspension of the power of alienation beyond two lives in being. This provision, however, would not necessarily invalidate the other provisions of the will if they were separate and independent. There is, however, one idea which appears to have been paramount in the mind of the testator in disposing of his estate. This idea he has given expression to in the sixth clause of his will. He directed that none of his real estate should be sold until after the death of his wife and two sons. This declared purpose appears to have controlled him in framing the seventh, eighth and ninth clauses, for he concludes the ninth by withholding the giving of any of his estate to his grandchildren until after the death of his wife and his two sons, thus indicating that it was his intention that the survivor of his sons should have the whole income during his life. The court may construe wills and determine the evident intention of the testator, but it is not authorized to make a new will for him. It appears to us that the seventh, eighth and ninth clauses of the will are so connected with, and dependent upon, the declared intention as disclosed in the sixth clause, that they cannot be separated therefrom, and this disposition being prohibited by statute, these provisions must also be held to be illegal. It follows that the testator died intestate as to all of his property not disposed of by the first five clauses of his will.
The judgment of the Appellate Division and that of the Special Term should be modified accordingly, with costs to the parties appearing upon this appeal, payable out of the estate.
O'BRIEN, MARTIN and VANN, JJ., concur with BARTLETT, J., for affirmance; PARKER, Ch. J., and LANDON, J., concur with HAIGHT, J., dissenting.
Judgment accordingly. *Page 522