The plaintiffs are the children of the testator, and the defendant is his widow and sole executrix and trustee under his will. The plaintiffs contend that, the trust attempted to be created is invalid as suspending the power of alienation for a period not measured by one or two lives in being at the death of the testator; that the contingent limitations over at the end of the trust period of five years to issue or survivors fail for the same reasons; that the contingent limitations to the wife and children cannot stand because not certain to vest in interest within a life or two lives in being at the time of the death of the testator, and that the contingent limitations to the wife and children if they survive the five-year term cannot stand without the estates that precede and follow them.
If the proper construction to be placed upon the, language used by the testator, considered in connection with his intent which must be gathered from the whole scheme of the distribution of his estate, creates an absolute trust period of five years and is not measured by any life or two lives in being at the time of his death, the trust is invalid and plaintiffs’ contention must be sustained, unless, as defendant argues, the term during which distribution of the estate is postponed may be disregarded and the estate distributed immediately in accordance with the provisions of the will. ■
Under the well-settled law of this State, the will must if possible be so construed as to fender it valid; and effect must be given to the intention of the testator when ascertained. I think it was the intention of the testator that the income of his residuary estate, and, if subsequent conditions (not foreseen) *317rendered it necessary, the principal, should, for the full term of five years, he devoted to the support and maintenance of his wife and three children, and that if any of them survived that term the trust should continue; that it should not be terminated before the expiration of five years unless the wife and all of his children should die during that túne.
There is no specific limitation of the five-year term upon a life or two lives in being at his death, but upon the contrary his language and the scheme of distribution establish, I think, that the testator did not intend such a'limitation.
The entire residue, both real and personal, is to be kept intact, unless unforeseen conditions render it necessary to use the principal, the net income paid to the wife during the continuance of the trust to be used for her support and that of her three children, the survivor or survivors.
It is directed that the trust shall cease and determine at the expiration of five years from his death, and it is clear, I think, that he intended that it should not be terminated until that time, and that in the event of the death of his wife or any of the children the trust is nevertheless to continue for five years.
It is difficult to conceive of language which would more clearly indicate the testator’s intent that distribution should not be had of his entire estate until the expiration of five years after his death, irrespective of who or how many of his cestui que trusts might die during such trust period. Until the expiration of five years, all of the remaindprs are contingent only; the survivors of the cestui que trusts then, and not until then, are vested with “ an indefeasible and absolute estate of inheritance.”
The vesting in interest as well as the vesting in possession is postponed until the expiration of the five-year period, and until such time it could not be determined who would be entitled to the residuary estate.
The contention of the defendant that the trust term should be disregarded and the estate distributed immediately cannot be sustained; such a disposition would" cut off the ultimate limitations to surviving children, their issues, and the widow, contrary to the testator’s clearly expressed intent that neither widow nor child should have any portion of the residuary estate, *318unless the same should be necessary for their support during the trust period.
The contingent limitations cannot survive the failure of the rest of the instrument, and the residuary estate, real and personal, must be distributed in accordance with the provisions of the Decedent Estate Law relating to the inheritance of property of persons dying intestate. (See Consol. Laws, chap. 13 [Laws of 1909, chap. 18], art. 3, as amd. by Laws of 1909, chap. 210.)
Judgment may be entered accordingly.
Hirschberg, Thomas and Carr, JJ., concurred;■ Burr, J., read in favor of judgment for defendant.