It is provided by the statute (1 R. S. 773, § 1) that “ The absolute ownership of personal property shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance, and until the termination of not more than two lives in being at the date of the instrument containing such limitation or condition, or if such instrument be a will, for not more than two lives in being, at the death of the testator.” And (by 1 R. S. 737, § 129) that, “Ho estate or interest can be given or limited to any person by an instrument in execution of a power which such person would not have been capable of taking under the instrument by which the power was granted.”
It is not disputed but that the will of William G. Fargo effected an equitable conversion of the property in question into personal property, and that for the purposes of this case it must be regarded as personal property.
The disposition of the property under the will of Georgia Fargo was an attempted execution of the power created under and by the will of William G. Fargo. The validity of the attempted execution of the power must, therefore, be tested, under the statute, by reading the provisions of the will of Georgia Fargo, relating to the property, into the will of William G. Fargo. The absolute ownership of the property under the statute could not be suspended longer than during lives in being at death of William G. Fargo. It could not be suspended during the life of the Squiers children, or any part of such lives, because those children had not been born when William G. Fargo died. In order, therefore, that this attempted execution by Georgia Fargo of the power . created by the will of William G. Fargo, should be determined to be valid, it must be held that the absolute ownership' of the property vested in the Squiers children at the death of Georgia Fargo.
*490There can be no doubt of the intention of Georgia Fargo to execute the power created by her father’s will. She. expressly so stated in her will. Her language was, “ intending hereby * * to direct the payment and distribution * * * of the sum held in- trust for me, under the provisions of * * * such last will * * * hereby executing each and every power of appointment vested in me by said will,” etc., etc.
Neither would there seem to be any doubt that her intent was mainly to provide for the four Squiers children, because she provided that the property should be divided into four equal parts, one of which should be held for the use and benefit of each .of those children, and then she provided that the whole income accumulated before the beneficiaries should become twenty-one (21) years of age, or their deaths, if prior to that time, should belong absolutely to the beneficiaries, and should be paid to them or their estates free from any trust, and that the whole income accumulated, while the beneficiaries were between the ages of twenty-one (21) and twenty-five (25) years, should be paid to the beneficiaries annually; that one-half of the fund itself should be paid to the beneficiaries absolutely at the age of twenty-five (25) years; that the whole income from the - balance accumulated, while the beneficiaries were between the ages of twenty-five (25) and thirty (30) years should be paid to the beneficiaries -annually, and that the remaining one-half of the fund, itself should be paid to the beneficiaries absolutely at the age of thirty years. If this will contained -only these provisions, it might well be said that the whole scheme of .the testatrix was to provide for these four children, and that the intention of the will was to vest the title in the children at her death and merely to postpone, payment or enjoyment thereof to a subsequent time.
The principle of law applicable to this question was well stated by Denio, Oh. J., in Everitt v. Everitt, (29 N. Y. 39, 75, 77), viz.: “ The leading inquiry upon which the question of vesting or not vesting turns, is whether the gift is immediate and the time of payment or of enjoyment only postponed, or is future and contingent, depending upon the beneficiary arriving of age or surviving some other person, or the like. futurity is annexed to the substance of the gift, the vesting is suspended, but if it appear to relate to the time of payment only, the legacy vests instanter.” And in this con*491dition of things, the fact that a trust was also created by the will would not prevent the vesting of the title in the beneficiaries at the death of the testatrix. (Vanderpoel v. Loew, 112 N. Y. 167-181.) But there were other provisions in this will connected with this trust and with the final disposition of the property. The testatrix provided that in case of the death of the beneficiaries before arriving at the age of thirty years, the fund should thereupon be paid to their issue, if any; if no issue, then to the persons appointed by their wills, if any; if there were no issue and no appointees, then to brothers and sisters of beneficiaries, if any; and if no issue, no appointees, and no brothers or sisters, then to the two nieces of the testatrix named in the will.
These provisions expressly negative the idea that the whole scheme of this will was to provide for these four Squiers children, and that the intention was to vest title absolutely in them at the time' of the testatrix’s death, and show that the intention was to withhold the title from the children and to vest the same in the trustees until the children should arrive at the age of twenty-five (25) and thirty (30) years; that in case of their death before the times specified the property should not be disposed of as the property of the children, but under the particular provisions of her own will, which disposition would be entirely different from that which might be made if the property were the absolute property of the children and was distributed in case of intestacy or passed under their wills.
If this construction is to be given to this will of Georgia Fargo, then it cannot be sustained as a valid execution of the power created by the will of William G. Fargo. It is true that courts, in construing wills, are -required to carry into effect the intention of a testator so far as possible, but the statute also requires such intention to be collected from the will itself. (1 R. S. 748, § 2.)
And where the intention is plainly deducible from the will, the court has no power to disregard that intention in the construction of the instrument. The court cannot make a new will for a testator under a pretended construction of the one made by such testator. We cannot here, in view of the plain language and design of this will, hold that the whole scheme of this execution of the power was to provide for the Squiers children, and that the testatrix had no design to withhold the absolute title to the fund and to dispose of it herself in *492the event of these children dying before they became twenty-live or thirty years of age. . The contrary design is clearly apparent from a mere reading of the provisions of the attempted execution of the power. There are many cases in the books where the courts have struggled hard to save wills from the provisions of the statute, and by cutting out some provisions, clearly invalid, to give effect to the intention of the testator, and they have sometimes succeeded. Many of these cases are cited and commented upon and distinguished by counsel upon this appeal. We do not regard it as necessary, however, to go through these cases or discuss them here. It seems to us that this case is to be determined by the application of the principles of law and a consideration of the facts already referred, to, and we rest our decision upon the fact that the intent of the testatrix, as indicated by the language of the will, was to suspend the vesting of the absolute title to the property until the Squiers children should arrive at the age of twenty-five and thirty years respectively, that is, as to one-half of each child’s share, until he should arrive at the age of twenty-five years, and as to the other one-half, until he should arrive at the age of thirty years.
This was a violation of the statute which rendered the execution of the power invalid.
The judgment appealed from should be affirmed, -with costs.
Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.
Judgment affirmed, with costs.