(dissenting).—As stated in the prevailing opinion the decision of this case depends entirely upon the construction of the will of Patrick Sheehy. After a small bequest to each of his daughters the testator left all the rest, residue and remainder of his estate to his executors in trust, to receive the rents, issues and profits thereof and to pay to his wife from *168time to time two-fifths of the rents, issues and profits during the term of her natural life; to divide the remainder of the rents, issues and profits thereof into two equal parts; to apply so much of one of such parts as the trustees should deem proper to the maintenance and education of his son Edward until he should attain the age of twenty-one years, and upon his said son attaining the age of twenty-one years to pay to him one of said parts from time to time until he should attain the age of twenty-five years, and upon his said son attaining the age of twenty-five years to convey, transfer and pay over to him three-tenths of his residuary estate together with all unexpended income and profits of the said one of the said equal parts to his said son Edward. And further providing that upon the decease of his wife if his said son be then twenty-five years of age to convey to his said son one-fifth of all the rest, residue and remainder of his estate, and if his said son be not then twenty-five years of age then upon his attaining that age; with a similar provision as to the other equal parts of three-fifths of his estate to his son Frank. The testator’s wife and his son Edward survived the testator. The testator’s wife died on the 6th of March, 1904, and the testator’s son Edward died on the 16th of January, 1901, then over twenty-one years of age, leaving a last will and testament which was duly admitted to probate and which bequeathed and devised the interest that he had in his father’s estate. If the undivided half of the estate held in trust for the benefit of Edward vested on the death of the testator or upon his arriving at the age of twenty-one years then the plaintiffs had no interest in the property and the action cannot be maintained. If no interest in the estate vested in the testator’s son Edward until he became twenty-five years of age then the testator died intestate as to Edward’s share of the trust property and plaintiffs have an interest in common in the real property and can maintain this action which is to partition the real property left by the testator.
*169I think, under the will, the residuary estate was divided upon the death of the testator into three parts. Two-fifths thereof were to be held for the benefit of the widow during her life, and the remaining three-fifths were to be held for the benefit of the two sons until they, respectively, arrived at the age of twenty-five years. Unless that was the intention of the testator, a ques-ion would be presented as to whether the trust was not void, as it would apparently continue during the lives of the widow and the two sons, being three lives in being at the death of the testator. If there was but one trust, and no final distribution of the property until the death of the widow, and the two sons becoming twenty-five years of age, then the trust could not terminate upon the ending of two lives in being at the death of the testator. But this, I think, would be clearly contrary to his intention, and it is a settled principle in the construction of wills that, if it is possible to construe a will so that a trust will not violate the statute, and thus be void, such a construction will be given to it. This testator clearly intended that one-half of three-fifths of his residuary estate should go absolutely to each of his two sons upon their arriving at the age of twenty-five irrespective .of the death of his widow prior to that time. The express language of the will is that the executors are directed to divide “ the remainder of all the rents, issues and profits, interest and income arising from and out of all the rest, residue and remainder of all my estate, both real and personal, into two equal parts,” and pay half thereof to each son, and upon each son attaining the age of twenty-five years, to convey, transfer and pay over to him three-tenths of all the rest, residue and remainder of all the testator’s real estate, and one-half of all the rest, residue and remainder of all his personal estate. While the direction to pay the income is to pay a proportion thereof to his son before he reaches the age of twenty-five, upon the son reaching the age of twenty-five he was to have ab*170solutely three-tenths of all the testator’s real property and one-half of his personal estate, and, on the death of his mother, if he was then twenty-five years of age, the son was to have one-half of the two-tenths of the real estate which had been held in trust for his mother. There must, therefore, have been a division of the estate at some time, either at the death of the testator or at the time that a son became twenty-one years old, and I think it should be treated as being at the death of the testator. That construction certainly will not do violence to the testator’s intention. It will carry out the object that he had in mind and will avoid any question as to the validity of the trust.
It is quite difficult to reconcile all the cases that have discussed this rather troublesome question, and it is not necessary to make the attempt. In the construction of a will such a construction will be given to it if possible as will sustain the will and carry out the intention of the testator and also that the vesting of estates is favored and a will is to be construed, if possible, so as to vest the interest of a devisee or legatee. Generally it may be said that the cases that have held that where there is a mere direction to pay or convey, futurity was of the nature of the gift and the property did not vest until the time arrived at which the trustee was to transfer or convey the share of the trust property, the will has in addition to the form of the bequest or devise an expressed intention that if the beneficiary should die before the time arrived there was substituted some other person or persons who were to receive the property. Thus in People’s Trust Co. v. Flynn (188 N. Y. 394) the will provided that if the person to whom the remainder was given should die before the life estate terminated the property was to go to his issue, and there is a similar provision in Lewisohn v. Henry (179 N. Y. 352). In this case the testator’s intention was that Lis two sons should each have three-tenths of his real estate and one-half of his personal property upon their arriving at the *171age of twenty-five and the income in the meantime. In Warner v. Durant (76 N. Y. 133) it was said that the provision directing the payment of income to a beneficiary, who was to receive the corpus of the estate at the age of twenty-five, created a vested remainder, and that is just what the testator provided in this case. As to three-fifths of his estate and one-half of his personal property each of his sons was to receive the whole income from the time they were twenty-one until they were twenty-five, when they were to receive the principal, and as to the two-fifths of the estate held in trust for the widow they were to receive the whole corpus of the estate if they were twenty-five years of age at the death of their mother or, if not, then upon attaining the age of twenty-five. (See, also, Canfield v. Fallon, 43 App. Div. 561; affd., 161 N. Y. 623; Vanderpoel v. Loew, 112 id. 167, and Steinway v. Steinway, 163 id. 183.)
It seems to me, therefore, that this will should be construed as vesting a remainder in each son on the death of the testator, the enjoyment of which was, however, postponed until each son became twenty-five years of age. This construction of the will would necessarily create a vested remainder at the death of the testator and the interest of his son Edward passed under his will and plaintiffs had no interest in the property.
I think, therefore, the judgment was right and should be affirmed.
Laughlin, J., concurred.
Judgment reversed, with costs, and demurrer overruled, with costs, with leave to defendants to withdraw demurrer and to answer on payment of costs.