(concurring in part and dissenting in part): I concur in the affirmance of the judgment of the trial court but find myself unable to agree with that part of the majority opinion regarding the common law theory of accumulations which is known as the English Thellusson Act. As we stated in In re Estate of Yetter, 183 Kan. 340, 348, 328 P. 2d 738, our legislature has not passed any statute governing the accumulation of surpluses in trusts or estates and for that reason the provisions respecting the six-twentieths interest under the testamentary trust are not void. I think this court should be meticulous in its references to accumulation of surpluses in trusts or estates in order not to confuse our conclusions and holding in the Yetter case. With respect to the fourteen-twentieths interest, it is my opinion the trust created by the will of Sarah G. Foster providing for a life estate for Miriam F. Ball is valid but the provision that at her death the remainder over went to the children of her body is void because it clearly violates the rule against perpetuities.
Obviously, of course, the express purpose and intention of the testatrix was to die testate or, stated in another way, her intention was not to die intestate, but still the provisions of her will had to be according to law. By those provisions she died intestate so far as any gift over to the remaindermen, children of the body of Miriam F. Ball, are concerned. Therefore, at the death of Miriam F. Ball the fourteen-twentieths interest and the six-twentieths interest should both revert back to the estate of the testatrix and pass under the laws of intestacy.
I have no desire to extend this opinion by repeating the appropriate law, as I understand it to be, but I do wish to call attention to 2 Bartlett’s Kansas Probate Law and Practice, rev. ed., Rule Against Perpetuities, § 583, on Application of the Rule, pp. 114-119, and § 585, Operation and Effect of the Rule, p. 120, where it was said:
“The remainder which offends the rule reverts to the donor or becomes a *506part of the residue of his estate. The provision of the will being void, the estate goes as if such provision had not been made.”
The author of the above work discussed the cases in Kansas including the McEwen case cited in the majority opinion wherein there was no intervening legal or equitable estate, but only a trust for the testator’s grandchildren for a period which violated the rule against perpetuities, and at the end of that time the same grandchildren were to take the fee simple title. In our present case, however, there is an active trust with the legal title in the trastees and the beneficial title in Miriam F. Ball for her lifetime, then a continuing trust with the legal title remaining in the trustees and the equitable title in the children of the body of Miriam until those children reach the age of twenty-three years, or Miriam dies, whichever is the later. Thus this trust must fail as to the children of the body of Miriam because of violation of the rule against perpetuities, and since it does not go to those children in fee simple title until the above provision is terminated, it cannot go through a residuary clause except by reverting back into the void trust. If we were to accelerate the fee simple title as was done in the McEwen case, the children of the body of Miriam would take at the death of the testatrix and thus the life estate of Miriam, which was equitable, would be cut out and the intention of the testatrix to give Miriam only the proceeds from the trust during her lifetime would be defeated.