delivered the opinion of the court:
Able and exhaustive arguments have been made by-counsel on both sides of this case, and so directed that, with the opinion of the learned chancellor who heard the case in the court below, we have been relieved of much labor that would otherwise have been imposed upon us. Separate briefs have been filed by the several counsel for appellants, in all of which it is conceded, and which appears plain, that the will, in some of its provisions, violates the rule against perpetuities, though counsel differ somewhat as to which one or more of the provisions is or are affected with that vice, and also as to some of the essential grounds upon which a correct conclusion must be based.
The questions raised are questions of law, the facts being brief and undisputed. The testator died March 18, 1892, owning real and personal property in Cook county valued at about $90,000. He left seven children, all mentioned in the will, viz., Amina E. Smith, Julia M. Jones, Harriet C. Furber, Philip S. Wood, Edward C. Wood, Frederick L. Wood and Frances S. Wood, sometimes called Fannie Starrin, the first five of whom were of the respective ages of fifty-three, fifty-two, forty-nine, forty-five and forty-one years. The last two, being children of the testator’s second wife, were younger, but of mature age. He left him surviving also five grandchildren, viz., Amina E. Smith, Jr., and Jessie Smith, daughters of Amina E. Smith, and of the respective ages of twenty-four and twenty-one years; Alonzo DeHaven Jones and Gertrude M. Jones, children of Julia M. Jones, and of the respective ages of seventeen and fifteen years; and Theodosia Furber, daughter of Harriet C. Furber, and of the age of nine years. The children of the testator, except the first three above named, were unmarried.
The contention of the complainants "below, appellees here, briefly stated, is; That the twelfth, thirteenth, fourteenth and eighteenth clauses of the will violate the rule against perpetuities, because the legacies there provided to be paid by the trustees to the grandchildren may not vest in possession or become payable within the period of a life or lives in being and twenty-one years thereafter. • It is next contended that as the entire estate is given and devised to the trustees, to be managed and administered during a period of time extending until the death of all the testator’s children and until the youngest child of any one of his first named three daughters, including any that may be hereafter born, becomes twenty-five years of age, at which time the trust estate as it may then exist is to be divided among all the testator’s grandchildren then living, the rule against perpetuities is clearly violated, and that such trust is therefore void, and that all provisions of the will directing the trustees to make payment of different sums out of the trust estate so created are also void. We are inclined to this view of the case in the main, and to hold that the learned chancellor of the circuit court rendered the .proper decision on the final hearing, except as to divisions nine, ten and eleven of the will, which will be noticed at another place.
“No interest subject to a condition precedent is good unless the condition must be fulfilled, if at all, within twenty-one years after some life in being at the creation of the interest.” (Gray on Perpetuities, sec. 201; Howe v. Hodge, 152 Ill. 252.) “It is not enough that a contingent event may happen, or even that it will probably happen, within the limits of the rule against perpetuities. If it can possibly happen beyond those limits an interest conditioned on it is too remote.” (Gray on Perpetuities, sec. 214.) The eighteenth or residuary clause of the will provides that the entire principal sum remaining, with its accumulations, after all the previously mentioned sums are paid and after all the trusts created by the will in favor of the “beneficiaries and remainder-men” have terminated, shall be equally divided among all the testator’s grandchildren then living. These previously mentioned sums, and the trusts created in favor of the beneficiaries mentioned in the will, include those provided for all children of the testator’s three first mentioned daughters who may outlive their respective mothers, whether born before or after the testator’s, death and whether of the age of twenty-five years at their mothers’ death or not, and the distribution could not, of course, be made, if the intention of the testator be carried out, until those sums payable by the will should be paid, if payable at all, and the trusts created by the will terminated. The consequence would be that it would be quite within the range of possibility that a large part, if not the bulk, of the estate could not be distributed until after the time limited by the rule, but would then be distributed to grandchildren of the testator born after his death, who, by the terms of the will, could not receive their portion within twenty-one years after any life or lives in being at the death of the testator. Besides, as the gifts provided for in the residuary clause are clearly gifts to a class, and as the amount each would receive would depend on the number of grandchildren then living, and as the possibility is that the class may be composed of those born too late to take under the rule, by the authorities the gift cannot take effect as to any. Gray on Perpetuities, 369.
It is contended by appellants that the residuary clause should be so construed as to require distribution to the grandchildren living when all the valid legacies shall have been paid,—that is, when the payments shall have all been made by the trustees “that are lawfully directed to be paid,”—which, of course, would not include any payments to after-born grandchildren coming within the twelfth, thirteenth and fourteenth clauses, who were not twenty-five years old at the death of their mother. But such was not the intention expressed by the testator in his will, and such a construction would tend to abrogate the rule against perpetuities altogether, whereas it is the duty of courts to give it effect and not to destroy its efficacy by adverse construction. Coggins’ Appeal, 124 Pa. 36; Post v. Rohrbach, 142 Ill. 600; Lincoln v. New Castle, 12 Ves. Jr. 235; Vaughan v. Burslem, 3 Brown’s Ch. 92; Scarsdale v. Curzon, 1 Johns. & Hem. 50.
We are clearly of the opinion that the residuary clause is in violation of the rule, and is therefore void. It is admitted to be so by one of the distinguished counsel for appellants, was so held by the learned chancellor of the circuit court, and we see no escape from the same conclusion.
But it is argued with much force, that, conceding the invalidity of the eighteenth or residuary clause, and conceding, also, that in so far as the twelfth, thirteenth and fourteenth clauses undertake to make provision for any child or children of the first three mentioned daughters of the testator who may be born after his death and who may not be twenty-five years old at the death of its or their mother, those clauses are also within the rule and invalid, still, as the will must speak from the period of the testator’s death and should be construed in the light of circumstances then existing,-and as the only grandchildren then living were the five children above mentioned, who were the children of said three daughters, and the provision for each such child being separate and in nowise dependent on the provision made for or amount to be paid to any other child, those clauses should so far be held valid, and also the trust provisions of the will so far as they are necessary to carry them and other valid provisions of the will into effect.
Bach of the twelfth, thirteenth and fourteenth clauses first directs the trustees to pay from the income of the trust estate an annuity'of §600 a year to the testator’s daughter therein mentioned, during her life. It next directs the payment of an annuity of §300, upon her death, to each of her children then living, under twenty-five years of age, until that age is reached, and then, out of the principal of the trust estate, to pay such child the sum of §10,000 when he or she shall arrive at the age of twenty-five years. It next provides that each of such children as shall have arrived at the age of twenty-five years at the death of his or her mother shall be paid the said sum of §10,000. It is clear from the provisions of the will, that while the testator intended to prefer the children of his three daughters mentioned in the twelfth, thirteenth and fourteenth clauses over any other grandchildren he might have, yet he intended to make no distinction between those born before and those that might be born after his death,—that after-born grandchildren, if any, would come equally within the bounty of the testator as expressed in his will; and as no presumption can be indulged, from the evidence or otherwise, that no children would be born to these three daughters, or to either of them, after the death of the testator, and as the grandchildren now living may die before the happening of the contingency upon which they can take and others may be born who, under the will, might take, it is clearly possible that to carry out these provisions of the will the payments therein directed to be made would have to be made to grandchildren who could not take because of the rule against remoteness, for it would seem indisputable that as to any child which may hereafter be born to either of these three daughters, and who shall not have reached the age of twenty-five years at the death of his or her mother, the gift contingently made to it might not take effect in possession within a life or lives in being and twenty-one years. And as these several sums could not be accumulated and distributed by the trustees under the residuary clause because of its invalidity, there would be a failure of the most substantial provisions of the will, not because the contingency upon which the payments were to be made did not happen, but because it happened after the time limited by the rule. The possibility that the contingencies mentioned in the twelfth, thirteenth and fourteenth clauses may not happen within the time allowed by the rule is sufficient to make them invalid under the rule. We think, also, that to declare those clauses of the will valid as to such of the children of these three daughters as were born before the testator’s death, or as to them and such as may be twenty-five years old at their mother’s death, and invalid as to any others, would be to make a different will from the one made by the testator, who intended equality among the members of this class of his grandchildren; and especially would this be the result when it is seen that such after-born grandchildren would be excluded altogether by the invalidity of the residuary clause. Then, again, the execution of these provisions of the will thus emasculated would be dependent upon carrying into effect the trust scheme devised by the will. But this trust itself violates the rule by making provisions for tying up the estate for a longer period than that fixed by the rule, and cannot therefore be sustained.
From a careful reading of the will set out in the statement of the case, it clearly appears that the trust created by the testator was one entire scheme, upon which the execution, in the main, of the various provisions of his will was made to depend. Aside from the books, pictures, etc., bequeathed to the aforesaid three daughters by the seventh clause of the will, (the validity of which is unquestioned,) there is no bequest made directly to any beneficiary, but directions, only, are given to the trustees to make certain payments out of the trust estate, some out of the principal, others out of the income. In Tilden v. Green, 130 N. Y. 29, it was said: “The appellants' invoke the aid of the principle that where several trusts .are created by a will which are independent of each other and each complete in itself, some of which are lawful and others unlawful, and which may be separated from each other, the illegal trusts may be cut off and the legal ones permitted to stand. This rule is of frequent application in the construction of wills, but it can be applied only in aid and assistance of the manifest intent of the testator, and never where it would lead to a result contrary to the will, or work injustice among the beneficiaries, or defeat the testator’s scheme for the disposal of his property. The rule, as applied in all reported cases, recognizes this limitation: that when some of the trusts in a will are legal and some illegal, if they are so connected together as to constitute an entire scheme, so that the presumed wishes of the testator would be defeated if one portion was retained and other portions rejected, or if manifest injustice would result from such construction to the beneficiaries, or some of them, then all the trusts must be construed together, and all must be held illegal and must fall.”
We see no way by which a division of the trust created by this will can be made, and part held valid and the rest invalid, without doing violence to the intention of the testator. It is all one entire scheme, and although the trust is an instrument to effect the beneficial purpose of the testator, it is made the most prominent feature of the will.
It is said that at least as to the three payments, of §500 each, in the ninth, tenth and eleventh clauses of the will directed to be paid by the trustees to his brother and sisters-in-law soon after his decease, the trust must be sustained; but it is inconceivable that the testator would have created a trust for such a purpose, as such payments can as well be made in due course of administration of the estate in the probate court, and we think they should be so made, and that the court below erred in holding those provisions void. It is true they direct the trustees to pay these sums from the principal trust estate, but as the payments are to' be made soon after the death of the testator, the trust estate might be regarded as the same as the estate in the hands of the executors. These provisions do not seem to be necessarily dependent on the other provisions of the will held invalid, and there is nothing in them, of themselves, in violation of any rule of law. It would also seem to have been clearly the intention of the testator that these beneficiaries should have these gifts independently of any other disposition of his estate. Besides, it is a rule of construction that where effect cannot be given to the entire will, a part of the will may be sustained which conforms to the rules of law, where no violence is thereby done to the general intention of the testator. 2 Jarman on Wills, 843; Oxley v. Lane, 35 Ill. Y. 340.
It is contended by counsel for appellants that this principle should be extended to other clauses which have been held invalid, but we think the contrary. So far as the annuities to the testator’s children are concerned, they are payable out of what will be their own estate, and as they will, under the Statute of Descents, take the principal, that will carry with it the income.
By the nineteenth clause the testator, for reasons therein given, intended to exclude his son Frederick from all interest in bis estate, but as the bulk of the estate must pass, by the statute, to the heirs-at-law, and no disposition of it is made by this clause, it cannot have any effect. An heir cannot be disinherited unless the estate is given to some one else. Coffman v. Coffman, 85 Va. 459; 17 Am. St. 69; Boisseau v. Aldridges, 5 Leigh, 222; 27 Am. Dec. 590; Doe v. Lanius, 3 Ind. 441; 56 Am. Dec. 518, note; Stephenson v. Doe, 8 Blackf. 508; 46 Am. Dec. 489.
The decree of the circuit court will be reversed in so far as it holds the ninth, tenth and eleventh clauses or divisions of the will void and is in all other respects affirmed; and the cause is remanded with directions to modify the decree in accordance with the views herein expressed. Appellants will pay the costs in this court out of funds of the estate in their hands.
Decree affirmed in part and reversed in part.