The sole question of law presented by this appeal is as to the validity in whole or part of the attempted disposition in the will of Harry Dillon Bipley of the fund which he had assigned in trust to the Knickerbocker Trust Company and Sidney Dillon Bipley, as trustees, and which is now held by the. Guaranty Trust Company, as trustee. The' facts have been so fully and clearly stated by Mr. Justice Laughlin that it will be unnecessary to recapitulate them, and we can accordingly proceed at once to the consideration of the will in controversy. We pass, without deciding, the question whether or not the decree in the Surrogate’s Court referred to by Mr. Justice Laughlin is res adjudicata so; far as concerns the question here, since we are not agreed on that point, and proceed to consider the validity of the will de novo.
The objection urged against the will is that, so far as it relates to the fund involved in this proceeding, it undertakes to suspend the absolute ownership of the personal property, of which the trust fund consists, for more than two lives in being at the date of the instrument containing the limitation in violation of what is commonly known as the statute against perpetuities. (See Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 11.)
It is perfectly well settled that, with regard to personal property as well as with regard to real estate, the validity of. the provisions of a. will executing a power of appointment contained in an earlier instrument must be tested by reading the provisions of the will into the instrument which created the power. (Fargo v. Squiers, 154 N. Y. 250, 259.) So, reading the deed of trust and the will conjointly, it is apparent that one of the lives mentioned in the statute was that of Harry *483Dillon Ripley himself, the creator of the trust. This left it open to him to suspend, by his will, the absolute ownership of the fund for not more than one life in being at the time the deed of trust was executed. This one life, as the will was drawn, was that of his wife, Alice Louisa Ripley, for whose benefit the fund in controversy with other property was given to the executors as trustees. It is conceded that this provision for the testator’s widow, if standing alone, would be unimpeachable and would not contravene the statute against perpetuities. The argument against the entire invalidity of the 9th clause of the will rests upon the invalidity of other provisions contained in that clause, which, as it is considered by the appellant, constitute so important a part of the testator’s scheme of disposition that their invalidity necessarily condemns the whole clause, including the trust attempted to be created for the benefit of the widow. The fundamental question, therefore, which we are called upon to decide is as to whether the valid trust for the life of the widow is so distinct and separable from the other and concededly invalid provisions of the will that it can be upheld.
The rule to be followed in such a case is thus declared in Kalish v. Kalish (166 N. Y. 368): “This necessity [of deciding whether as to certain wills the void provisions may be excised] has led to the rule which is now firmly established in this State, that when the several parts of a will are so intermingled or interdependent that the bad cannot be separated from the good, the will must fail altogether; but when it is possible to cut- out the invalid provisions, so as 'to leave intact the parts that are valid, and to preserve the general plan of the testator, such a construction will be adopted as will prevent intestacy, either partial or total, as the case may be.” (See, also, Davis v. MacMahon, 161 App. Div. 458, 464, and cases cited.)
When the testator made his will he had one child, the appellant here, then an infant of tender years, and, as the event proved, his only surviving child. The general scheme of the residuary (9th) clause of the will was that the property should be held by the executors as trustees during the lifetime of the widow, with the proviso that one-half of it should be paid over *484to the child if he lived to the age of thirty years, the other half remaining in the trustees for the benefit of the widow during the remainder of her life. The widow was to enjoy the whole income during the infancy of the appellant; after he arrived at the age of twenty-one years, he was to receive one-quarter of the income; after he arrived at the age of twenty-five years, one-half; the balance in each case still going to the widow; and finally, when the appellant arrived at the age of thirty years, he was to receive one-half of the fund in possession and control.
We think it quite clear that this created but a single trust term, limited upon the life of the widow, subject to terminate as to one-half of the fund when the child arrived at the age of thirty years, and terminating as to the whole fund on the death of the widow. That this is the true construction of the will is indicated, as we think, by the 11th subdivision of the 9th clause, wherein the testator attempts to dispose of the remainder after the death of his widow. That subdivision reads as follows: “ (11) Upon the death of my said Wife then to hold the remaining moiety of my said estate upon trust for all or any [of] my children or child who being sons attain the age of twenty-one years or being a daughter or daughters attain that age or marry if more than one in equal shares but subject to the trusts and powers hereinafter declared concerning the same. ”
This provision is clearly invalid, but it serves to illuminate and emphasize the intention of the testator that the first gift to his trustees was to last for the lifetime of his widow and be limited thereby.
There are in effect two separate and successive gifts to the trustees. - The first expires on the death of the widow. The second was intended to go into effect at her death. If this be the proper construction of the will, it is of no consequence that the whole income is not to be paid to the wife during the full term of the trust. The validity of the will depends upon the hmitations of the trust estate, and not upon the manner in which the income is disposed of. “A testator may suspend the absolute power of alienation for a period of two selected lives in being at the creation of the estate, and during that time he *485may make such disposition of the annual income among as many persons as he sees fit. Thus having created a trust term which must end within the period required by the statute, he may provide that the income shall be paid during that time to A for life, remainder to B for life, remainder to C for life, and so on for as many different lives as he chooses, provided the whole trust term must end with the death of the survivor of the two lives.” (Schermerhorn v. Cotting, 131 N. Y. 48, 58.)
The above quotation exactly fits the case at bar. Here the testator has. created a trust term limited upon the life of his wife, and which must end at her death, because upon the happening of that contingency a new trust estate was provided for in the 11th subdivision of the 9 th clause of the will. Within the term of the first trust, differing dispositions are made of the income, depending upon the age of the son. The circumstance that when the son reaches thirty years of age a portion of the fund is to be withdrawn from the trust and paid over to him does not affect the validity of the trust. All that is invalid in the 9th clause is the 11th subdivision, undertaking to create a new trust in the remainder after the death of the wife. The only effect of deleting this provision will be that the remainder will be undisposed of and pass as if no such provision had been attempted to be made. It is true that the absolute vesting of the estate in the- son may be accelerated if the widow should die before he attains the age of thirty years, and to this extent the intention of the testator may be defeated, but it will be much more decisively defeated if the whole 9th clause be declared invalid and the testator held to have died wholly intestate. In Kalish v. Kalish (supra) the Court of Appeals, after an exhaustive review of the authorities in this country and England, approved a construction of a will which lifted bodily out of it an invalid trust provision, leaving the antecedent and subsequent provisions standing, although the effect was to accelerate the ultimate vesting of the estate.
We are, therefore, of the opinion that the trust provision for the life of Mrs. Ripley was and is valid and should be upheld, notwithstanding the obvious invalidity of the provision for the disposition of the remainder after her death.
It follows that the judgment appealed from must be affirmed, *486with costs to plaintiffs and the guardian ad litem payable out of the estate.
Ingraham, P. J., and McLaughlin, J., concurred; Laughlin and. Dowling, JJ., dissented.