(dissenting). By the will of Brace M. Gallien, now deceased, he gave his entire estate in trust and described the purposes of the trust in directions to the trustee as follows: “ From the income thereof to pay monthly to our foster daughter, Mabel Crans, so long as she may live, the sum of fifty dollars ($50) per month for her personal use. The balance of the income of my estate is to be paid to my wife Ida L. Gallien as she may desire it. If my said wife should be survived by our son Brace Goodwin Gallien, then the said balance of income or so much thereof as may be necessary is to be expended for his proper support and maintenance. 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 nature of the division of the estate after the termination of the trust and the other parts of the will are immaterial to the present discussion.
This will has been held invalid because the testator suspended the power of alienation of his estate for three lives in being, The question is whether the language of the will in the light of surrounding circumstances compels the conclusion that he so intended. We should strive as far as possible for such a construction as will render the will effectual rather than invalid. He left an estate of between $150,000 and $200,000. He first directed his trustee to pay Mabel Crans $50 monthly as long as she lived. This is said to be the first of the three lives. He speaks of her as his “ foster daughter.” We know nothing further of his relations to her nor of her circumstances. It is said that he had not legally adopted her. It does not appear that she was a member of his family nor that she was performing any duties in respect either to his wife or incompetent son. It is reasonably clear that he did not expect the $50 monthly payment to constitute her entire support and maintenance. The amount of his estate forbids such an inference, especially in view of the provision in the will that all the rest of the *414income was to go to his wife “ as she may desire it,” and the further provision that in case his son survived his wife “ then the said balance of income or so much thereof as may be necessary is to be expended for his proper support and maintenance.” In providing for his son the testator speaks of “ his proper support and maintenance ” and clearly implies that there may be more than sufficient income for that purpose. But in providing for his “ foster daughter ” he intended the provision to be, not for her support and maintenance as in the case of his son, but “for her personal use,” as he expressed it. It was something carved out of what would otherwise go to his wife or son. The dominating purpose of the testator was to care for his wife and incompetent son. Although making some provision for his “ foster daughter,” that was less important. With these thoughts in mind we approach the question as to whether the testator intended the division of his estate to depend on the life of his “ foster daughter.” If so we have the incongruous and unreasonable result that should she survive his wife and son the entire estate would be held in abeyance during her remaining life with no provision for the payment or distribution of its income except as to the small proportion of the estate needed to produce the income of fifty dollars monthly. The question whether the testator intended such a result answers itself. He clearly did not so intend. On the contrary, he must have intended that the trust should continue only during the lives of his wife and son who were the chief objects of his solicitude. Can the will be so construed as to effectuate that intent? In framing and connecting his sentences the testator did not exercise the precision and accuracy desirable in the formation of a will. But as stated in Denison v. Denison (185 N. Y. 438, 445): “ This is a case for the application of the rule that in order to effectuate the intention of the testator derived from the whole will, grammatical rules may be disregarded and words and limitations may be transposed, supplied or rejected. (Pond v. Bergh, 10 Paige, 140, 152; Phillips v. Davies, 92 N. Y. 199; Starr v. Starr, 132 N. Y. 158.) ” As above pointed out -the chief concern of the testator was his wife and son. When, immediately after providing for them he referred to the “ beneficiaries mentioned ” he evidently had those two in mind because if he had all three in mind he would have produced the unthinkable result above pointed out. In order to effectuate the clear intent of the testator we have merely to transpose “ words and limitations ” as authorized by the authorities above cited. This is not a mutilation of the will but a preservation thereof in accordance with its plain intent. This construction would not jeopardize the rights of Mabel Grans in case she might have survived the wife and son. *415In that event the present value of the monthly payments would have been ascertained and paid over to her. The fact that those monthly payments are directed to be paid by a trustee out of a trust fund does not militate against such a conclusion. (Buchanan v. Little, 154 N. Y. 147; People’s Trust Co. v. Flynn, 188 id. 385.) In view of those cases we need not speculate as to whether the provision for Mabel Crans should be technically denominated an annuity. Whatever its nature she would under all circumstances be adequately protected under the construction of the will here suggested. The case of Hooker v. Hooker (166 N. Y. 156) presents no analogy to the present case. Precedents in the construction of wills rarely present close analogies. In that case alienation of the trust estate was clearly suspended for three lives independently of the monthly payment to the wife of the testator.
Other provisions of the will present questions which it is unnecessary now to consider.
The decree should be reversed and the proceeding remitted to the surrogate.
Davis, J., concurs in memorandum as follows: I concur with Cochrane, P. J., for reversal. I think the trust is severable. (Matter of Horner, 237 N. Y. 489; Matter of Trevor, 239 id. 6, 15; Matter of Buttner, 243 id. 1; Matter of Chittick, 216 App. Div. 179, 180; mod., 243 N. Y. 304.)
Decree affirmed, with costs to all parties filing briefs, payable out of the estate.