The opinion of the court was delivered,
by Agnew, J.The primary rule in the interpretation of wills is to determine the true intention of the testator, and if lawful to give it effect. If this great canon of interpretation he observed there will be little difficulty in applying to a will, the law which governs the'creation and transmission of estates. We shall then be less embarrassed by the artificial and difficult rules relating to contingent remainders, executory devises, and trusts. It cannot be doubted that John L. Barclay created a trust to be managed by the trustees named in his will, during the lives of his *321wife, two sons and daughter. He gave -his trustees for this purpose large powers to sell, lend on mortgage, or otherwise to invest and pay over the income of his estate in certain proportions to his wife, daughter and sons. The direction to the trustees to pay annuities of $500 and $600 to- his sons, is expressly for and during life. He says that out of the income of the before-directed investment, his trustees shall pay to each annually the said sums. The “before-directed investment” is “shall invest all the proceeds of my estate, not hereinbefore provided for the payment of my debts,” &c. It is clear, therefore, that the testator intended that the trust, which was by its nature and terms an active one, should remain during the lives of his sons as well as of his wife and daughter, for as to all he provided only for the payment of income, while all of his estate was to be invested. It was in terms “ the balance of the income of my (his) estate after the annual payment” of the $500 and $600 to his sons, which he directed to be-paid to his wife and daughter. And it was the income only which his daughter was to receive after the death of his wife for and during her natural life. As he could not know which of these objects of the payment of income would die first, while all of his estate was to be invested, it is evident he intended an active management of the trust to invest, preserve and pay over -the income, to exist so long as any of the objects should survive. Then we come to the 13th item providing for the contingency of the deaths of his wife and daughter: “ 13th. I direct that after the death of my wife and my daughter Fanny, my estate shall be held in trust for the benefit of the children of my sons and daughter should they have any, and until said children shall be twenty-one years of age, and then equally divided among said children.” The children here take not by limitation, or per stirpes ; but as purchasers in their own right, their title vesting at birth, but deferred in the time of enjoyment, until their arrival at full age. It is obvious that the trust and the investment as income must necessarily survive the death of the wife' and daughter (leaving the sons surviving), in order to pay the annual income of $500 and $600 to the sons, and preserve the remainder for the children born or to be born. The legacy to the children was not to accrue at one fixed and independent period, or upon any contingency or condition other than birth, which would prevent it from vesting at birth or opening to receive after-born children. Birth was a -contingency neither impossible nor too remote, and was therefore not unlawful. There is no reason then why the intent of the testator to provide absolutely for the children of his sons and daughter in equal proportions when arriving into life, should be set aside in favor of the sons to whom he clearly intended to give the annuities of $500 and $600 during their lives, and *322nothing more. It is impossible to deny the intention of the testator to create a continuing active trust, to remain during the lives of his sons, and preserve the estate to their children in their own right. There being nothing too remote, contingent or unlawful in this provision, it is therefore not to he set aside by any artificial or technical rules. The law will support it, call it by one name or another. There is abundant authority for this to bo found in the opinion of the learned judge and in the citations of the defendant in error.
Judgment is therefore affirmed.