For the reasons stated in the opinion of Mr. Justice Freedman in the court below I think the judgment should be affirmed.
Bumsey, J., concurred.
The following is the opinion of the court below:
Freedman, J.:This is an action brought by the plaintiffs, as executors, and by two of the plaintiffs, in their individual capacity, for the cofistruction'of the last will and testament of Jacob New, deceased. After providing for the payment of certain legacies and the disposition of certain .personal property in no way in contravention of law, the testator then devises his real property in a manner which one of the defendants claims renders the entire will invalid and void so far as it relates to the disposal of such real estate. By the provisions of the will the testator has created two separate and independent trusts. The 1st and 2d subdivisions of paragraph 9 of the will must be read in connection with each other, and by those subdivisions he provides that one-third of his real estate shall be held in trust, the net. income thereof paid to his wife during her lifetime, and that, after her death, the said one-third shall be held for. the benefit of all his children until his daughter, Mabel New, shall arrive at the age of twenty-one years, or in case of her death prior to arriving at that age, then to be held in trust until the next older surviving child shall become of age. By paragraph 13.of said will it is further provided that “ the provisions made in this will for the benefit of my wife, Esther New, are to be accepted by her in lieu and bar of all dower or thirds in my estate.”. At the time of the death of the testator he left him surviving his widow, Esther New, and five children, *201two of whom were under the age of twenty-one years, viz., Mabel and Florence New. The trust created by the two subdivisions aforesaid provides for the suspension of the power of alienation for a period of one life and two minorities,, a minority being equivalent to a life (Benedict v. Webb, 98 N. Y. 460), and is, therefore, a violation of the statute against perpetuities and is void. As to the portion of the testator’s real estate mentioned in those subdivisions he must be deemed to have died intestate. The will must be considered as though no mention of the wife of the testator had been made therein, and all of the real property belonging to the testator at the time of his death will be burdened with the dower interest of the widow, for she cannot be deprived of the interest given her by statute in all the real estate of which her husband died seized by the creation for her benefit of an illegal and void trust and asserting that she must take and accept such void provision in lieu of dower. The second trust created by subdivision 3 of paragraph 9 is valid and terminates upon the arrival of Mabel New at the age of twenty-one years, or, in case of her death prior thereto, then upon the arrival of Florence at that age. During the continuance of this trust the power of sale given under subdivision 4 of paragraph 9 and in paragraphs 10 and 11 are valid, the real estate being subject to the right of dower of the widow therein. Subdivision 6 of paragraph 9 has reference to the invalid trust created by subdivisions 1 and 2 of paragraph 9, and is, therefore, ineffectual for any purpose and falls with the trust to which it refers. The legacies provided for in the will are independent and valid bequests. The word “ surviving ” in subdivisions '2, 3 and 4 of paragraph 9 refers to the death of the testator. The foregoing construction violates no law, does equal justice to all the parties and carries out the intent of the testator so far as the same can legally be done. Decision and judgment to be settled on notice.
Judgment modified as directed in opinion, with costs to the plaintiffs and the guardian ad litem to be paid out of the estate.