The surrogate has decided that the entire will is void, on the ground that the trust created by it suspends the power of alienation of testator’s real and personal property for a longer period than during the continuance of two lives in being at the creation of the trust estate, contrary to the provisions of section 42 of the Real Property Law and section 11 of the Personal Property Law, and that the subsequent provisions fall with it, on the ground' that they are dependent on and inseparable from the trust. (128 Misc. 370.)
This proceeding was brought by testator’s wife, as executrix, and his brother Henry, as executor. The will was made May 27, 1921. Testator died April 14, 1926. He left him surviving his wife, Ida L. Gallien, his son, Brace Goodwin Gallien, of full age, but an idiot, and a so-called foster daughter, Mabel Crans. She died four days after the death of the testator. It is said that the estate is between $150,000 and $200,000. The will is holographic and was written on- a printed form. After directing the payment of his debts, the testator gives, devises and bequeaths the remainder of his estate to the National Commercial Bank and Trust Company of Albany, N. Y., as trustee, in trust, to pay from the income thereof to “ our foster daughter ” Mabel Crans, as he described her, as long as she may live, the sum of $50 per month for her personal use; to pay the balance of the income to his wife, Ida L. Gallien, as she may desire it; and, if she is survived by the son, to expend such balance of income or so much thereof *411as may be necessary for his proper support and maintenance. The will then provides: “ When the above payments shall cease by reason of the deaths of the beneficiaries mentioned, I direct my said trustee to pay the following bequests in the order mentioned, dividing the residue of my estate into six equal parts.” The six parts are, one-sixth to his brother Henry, in case of Henry’s prior death to Henry’s son, Henry, Jr., and, in case of his prior death, back to testator’s estate; one-sixth to his brother Addison J., in case of his prior death to Addison’s wife, in case of her prior death to their son Kenneth, in case of Kenneth’s prior death to Kenneth’s brother Paul, in case of Paul’s prior death to Paul’s brother Gurnee, and if none survive then back to testator’s estate; one-sixth to the permanent endowment fund of the First Presbyterian Church of Albany; one-sixth to the permanent general endowment fund of Wesleyan University; one-sixth in trust and the income therefrom in monthly installments to his sister Clara K., and in case of her death, to her two sons, Thomas and Milton, equally, or all to the survivor, and at their death, the said one-sixth to revert to testator’s estate; and the residue, with any reversions, to be equally divided between the said endowment funds of the First Presbyterian Church of Albany and Wesleyan University. Finally, he names his wife as executrix and his brother Henry as executor. The division of the residue into parts presents certain questions, but the surrogate rested his decision upon the invalidity of the provisions for the widow, the son and the so-called foster daughter, so that it will be necessary to consider only those provisions. The executrix and the executor, as such, are attacking the will. Testator provides for Mabel Crans,- his wife, and his son, for their lives, and his estate is not to be divided until all three have died. The trust is to continue for three lives and, unless the provisions are separable, it will follow that absolute ownership and the power of alienation are unduly suspended. In construing a will the first step is to ascertain the testator’s intention, as expressed in his will, and the next is to give effect to it, if possible. While the rules as to the suspension of the power of alienation are explicit, their application is at times difficult and the court will give them a reasonable application to effectuate the testator’s intention, but apt legal words must be used to make it effective as against the statute. (Matter of Trevor, 239 N. Y. 6, 11, 12, 16, 18.) If what is good is separable from what is bad, severance of what is bad may be made, so as to prevent intestacy, either partial or total. (Harrison v. Harrison, 36 N. Y. 543; Kalish v. Kalish, 166 id. 368, 374, 375; Matter of Horner, 237 id. 489, 493, 502.) And the surrounding circumstances may be considered. Testator and his wife were *412getting along in years. They had an adult son, who had been an incompetent since birth. Mabel Grans had been and was taking care of him in some sort of capacity. Testator called her “ our foster daughter,” but she had not been adopted. In this situation, with an estate worth from $150,000 to $200,000, he planned and drew his will. He desired to provide for all three. He did in the way stated. Then he had certain desires in connection with the residue and he gave that to relatives on his own side of the family and to his church and college. And he named his bank as trustee, so that bis wife might not be burdened with trust duties. His intention is clear and it should be carried out, if it may be. But here a difficulty arises. He gives $50 per month out of income to Mabel Grans for life and the balance of the income to his wife for her life and then for the benefit of his son, during his life. It is the entire income which is thus to be divided, and such division is to continue during the three lives. The testator created a trust for the purpose, with title in the trustee, and the provision for Mabel Grans, whatever it may be called, is a part of the trust and is inalienable by her. (Real Prop. Law, §§ 96, 103; Cochrane v. Schell, 140 N. Y. 516, 534, 535.) It may be that the testator did not think of the result which would follow in case she survived, but the language is clear and her life is included as one for the measurement of the duration of the trust. And the result is not changed by the fact that she survived the testator only a few days. What might have happened is the determining factor. The decision in Hooker v. Hooker (166 N. Y. 156, 158) is in point. There, the testator gave his property, after payment of his debts, to a trustee to pay to his wife the sum of $100 per month so long as she remained unmarried and upon certain other conditions, then directed a yearly division of unexpended balance of income into three equal parts, one part to his wife, the other two parts to be invested for his two children, and, after certain provisions for wife and children under certain contingencies, directed a division of the balance of his estate in the following language: “ Upon the death of my daughters, leaving no issue, and after the provisions of this my last will made for the benefit of my wife, shall have been carried out, I order and direct my executor to divide the balance of my estate into four (4) equal parts and dispose of the same as follows.” The division followed. The Court of Appeals decided that the trust was measured by three lives. The provision was similar to the one here. The cases of Buchanan v. Little (154 N. Y. 147, 152) and People’s Trust Co. v. Flynn (188 id. 385, 392, 393) are not similar. The duration of the trust in each of those cases was made dependent upon the lives of the two daughters named in *413each. Here the provision for Mabel Crans is not separable from the provision for the wife and son. And the division of the remainder is not to be made until the termination of the three lives. Thus, that is dependent upon and inseparable from the trust and falls with it. The case is one where a saving interpretation should be made, if possible, but the language prevents.
It seems to me that it will be necessary to affirm the decree of the surrogate.
Hinman and McCann, JJ., concur; Cochrane, P. J., dissents with opinion in which Davis, J., concurs in a memorandum.