Testator devised his residuary estate to his executors to have and to hold the same in trust for the uses and purposes following: The executors are directed to set apart and invest one-third of his personal estate for the benefit of his widow during her lfe, and upon her death the corpus to be disposed of for the benefit of her children, “ by adding the same in equal parts to the several shares ” representing her children in the residuary estate. After various other provisions, with which we are not concerned upon this appeal, the executors are directed to divide the residuary estate into four equal parts or shares, to represent respectively his four living children, and to hold and invest each share and apply the income to the support of each child, until such child shall attain twenty-one years, and after such child shall have attained twenty-one years, to apply the whole income of the share representing such child to his use, and when each child arrives at stipulated ages, to wit, twenty-three, twenty-six, thirty-two and forty, fixed portions of the corpus of each share are also directed to be paid over, with discretion in the executors to withhold payment of one-fifth of the corpus of each share during the life of any child.
It is further provided that in the event of any child dying before receiving his full share, leaving issue, the issue to take the parent’s share, to remain upon trust, however, until such issue attains twenty-one years of age, or in the event of the death of a child without issue, the share of the one so dying is directed to be apportioned among the surviv ng children and added to their respective shares.
The trust for the testator’s four children, as outlined in paragraph “ seventh ” of his will, has been carried out, and three of his children, together with the children of one who has died, have received their respective shares of the corpus of this trust, upon the theory that each of the four children acquired a vested remainder therein. The trust for the benefit of testator’s widow, with which we are concerned, has been carried out only to the extent of the widow’s life estate, and upon her death, July 22, 1922, testator’s son by his first wife brought this proceeding to determine the validity and construction of this portion of the will.
*676It is his contention that, in violation of the Statute against Perpetuities, the power of alienation or the absolute ownership with respect to the trust set apart for the benefit of the widow for life, is suspended by the provisions of the will during at least five lives. As a matter of fact, it appears that testator did the thing he intended to accomplish without offending the statute, but the determination of the validity of this trust depends not on what has happened since the death of the testator, but on what might have happened. Chief Judge CULLEN, speaking for the Court of Appeals in Matter of Wilcox (194 N. Y. 288, 294, 295), says: “ At this point we must recall two elementary principles in determining the validity of wills. First. Such validity must be determined not in the light of what has actually transpired, but from exactly the same point of view from which it would be regarded had a suit been brought to determine the validity of the will at the time of the death of the testator, instead of at a subsequent period. That is to say, the validity of a will depends not on what has happened since the death of the testator, but on what might have happened. * * * ”
This will offends the statute, in that the testator directed the suspension of the power of alienation or of the absolute ownership, first, for the natural life of his wife; upon her death, the principal of her trust was to be added in equal parts to the several shares of her children (three) in his residuary estate, which was disposed of by paragraph “ seventh ” of the will. The shares referred to were directed in that paragraph to be held by his trustees, the income of which was to be applied to the support, maintenance and education of each child representing the shares, until each attained twenty-one' years of age, when all accumulations of interest were to cease and be paid over to the several children, and thereafter the entire net income of each share was to be paid over, with payments of principal to each child at stipulated ages, with discretion in the executors to withhold payment of one-fifth of the principal of each share during the life of any of the children represented thereby. This constituted a suspension for a second life. In the event of the death of any child, leaving lawful issue, such issue are to take the share of the deceased parent, but if such issue shall be an infant under twenty-one, then the share to which such infant is entitled shall be held upon trust during his or her minority. This constitutes a suspension for a minority, which for the purposes of the statute is equivalent to another, or in the case at bar, a third life. (Hayden v. Sugden, 48 Misc. Rep. 108; Benedict v. Webb, 98 N. Y. 460.) In the event of the death of any child leaving no issue, the share of such child is to be added, in equal parts, to the shares of the surviving children which under the earlier provisions of para*677graph “ seventh ” are to be held in trust, first, for the lives of the children, and second, for the minority of grandchildren. This creates a possibility of a further suspension for one or two lives, depending upon how many of testator’s three children by his second wife survived until they reached forty years of age, which might swell the total of lives for which the power of alienation or the absolute ownership is suspended to five. (See 1 R. S. 773, §§ 1, 2; revised by Pers. Prop. Law of 1897, § 2, and Pers. Prop. Law of 1909, § 11. See, also, 1 R. S. 723, §§ 14-16; revised by Real Prop. Law of 1896, § 32, and Real Prop. Law of 1909, § 42.)
The precise question, therefore, presented for decision relates to whether or not, because of these invalid provisions, the cutting-off process is to commence at the end of the widow’s life estate, or only the limitations beyond the second life. (Church v. Wilson, 152 App. Div. 844; affd., 209 N. Y. 553.) Respondents Emily H. Trevor and others assert it to commence at the limitations beyond the second life, and as authority for the contention cite Church v. Wilson (supra), while the appellant says it should commence at the termination of the widow’s life estate. (Matter of Silsby, 229 N. Y. 396.)
Future estates, to be valid, must be so limited that in every possible contingency they will absolutely terminate at the period prescribed by the statute. (Matter of Wilcox, supra.) Tested by the rule, the provision in the case at bar for a further life estate, causing a further suspension in case one of testator’s children should die leaving no issue, undoubtedly violates the statute (Church v. Wilson, supra), but in that case the court observed that its effect would not be to destroy the entire trust, but only the limitation beyond, the second life, as to which no valid remainder having been created by the will, there would be an intestacy. Respondents distinguish the Church Case (supra) from the Silsby Case (supra), upon which appellant relies, in that it was commenced after the death of the widow, the first life tenant, whereas the Silsby case was instituted after the death without issue of the second life tenant. Appellant seeks to distinguish the Church case, however, on the ground that there the primary and secondary life estates were vested, and hence a cross remainder of a third life estate could be cut off to prevent an invalidity, while had the remainder been contingent, it could not have been accelerated or cut off. (Purdy v. Hayt, 92 N. Y. 446, 452-457; Dana v. Murray, 122 id. 604, 618.)
I think this is the proper distinction, and that unless it can be determined, that both the widow’s and her children’s life estates were vested at the date of testator’s death, the cutting off process must begin at the end of the widow’s life estate. Thus in Simpson *678v. Trust Co. of America (129 App. Div. 200; affd., 197 N. Y. 586), where the will is very similar to the one in the case at bar, Mr. Justice Scott, writing for the First Department, said: “ It is urgently argued on behalf of the appellants that it is unnecessary and improper to apply the cross remainders provided by the will as between the surviving brother and sister, to the share originally set apart for the wife, and directed at her death to be added to the shares set apart for the brother and sister, and it is insisted that the language of the will will be satisfied if the provision for cross remainders be limited to the shares originally set aside for the surviving brothers and sister. A number of well-known cases are cited in support of this contention. (Beatty v. Godwin, 127 App. Div. 98; Corse v. Chapman, 153 N. Y. 466; Everitt v. Everitt, 29 id. 39; Vanderpoel v. Loew, 112 id. 167.) All of these cases, however, are to be distinguished from thé present because there was in each a provision whereby the accrued share would vest absolutely in some one upon the death of the first or second life tenant. In the present case no such provision is to be found.” That the children’s life estates were not vested is clear from the provisions of the “ fifth ” paragraph of the will, providing that the corpus of the trust for the widow’s benefit was not to be added to her children’s trusts under the “ seventh ” paragraph until her death.
While a most unfortunate result will flow from this conclusion, in that the appellant will receive a share in what testator patently never intended him to have, the duty of this court is to interpret, not to construct, to construe the will, not to make a new one. It is not the duty of the court to strive by a strained construction to uphold the will, but to seek to ascertain the disposition which the testator undertook and intended to make, and having ascertained that, to determine whether or not it is valid. (Simpson v. Trust Co. of America, supra.)
It follows that that portion of the decree of the Surrogate’s Court of Westchester county which sustains the validity of the trust after the life estate of the widow, should be reversed upon the law, and in all other respects affirmed, with a separate bill of costs to the appellant, the executors, and the special guardians, payable out of the fund.
Kelly, P. J., Jay cox and Manning, JJ., concur; Young, J., dissents and reads for affirmance.