(dissenting in part).
I dissent in part. I agree with syllabuses 1 and 2 of the majority opinion. I also agree that a provision in a will professing to set up a trust creating a motive for terminating the family relation of husband and wife may be held invalid as being contrary to public policy. However, this case is not ripe for that determination on the record before us. It is correctly stated in the ma-j ority opinion that “ * * * no testimony was taken in county court, the only thing before us is the will.” That there may be exceptions to the general rule is clearly shown by the cases cited in the majority opinion. I do not feel that we are at liberty to look solely to the language of the will to *593make this very important determination. We have said many times that the primary consideration in construing a will is the intention of the testatrix. In re McQueen’s Estate, 64 N.D. 31, 250 N.W. 95; In re Gray’s Estate, 27 N.D. 417, 146 N.W. 722, L.R.A.1917A, 611; Crabtree v. Kelly, 65 N.D. 501, 260 N.W. 262; In re Glavkee’s Estate, 76 N.D. 171, 34 N.W.2d 300; Hoellinger v. Molzhon, 77 N.D. 108, 41 N.W.2d 217, 19 A.L.R.2d 1147; Hull v. Rolfsrud, N.D., 65 N.W.2d 94.
Section 56-05-01, N.D.C.C., provides:
“A will is to be construed according to the intention of the testator. When his intention cannot have effect to its full extent it must have effect as far as possible.”
We said In re Glavkee’s Estate, supra:
“The sole purpose of the court in construing a will is to ascertain the intention of the testator as the same appears from a full and complete consideration of the will, when read in light of the surrounding circumstances. If that intent can be ascertained and is not violative of some rule of law which exists for the purpose of limiting the power of the testator to dispose of his property as he wishes, such intent must prevail.”
In the case of Davidson v. Wilmington Trust Company, 23 Del.Ch. 1, 2 A.2d 285, upon which the majority opinion relies, the court considered evidence adduced and found:
“Not only does the evidence fail to disclose facts which can give this exacting condition a setting in justifying circumstance so as to make it reasonable and therefore properly to be excepted from the general rule; the evidence is forceful to the contrary. * * The evidence of the facts and circumstances surrounding the will and the persons concerned show that no ground whatever existed to supply a reasonable basis for the condition.”
The court then concluded that the trust, therefore, appeared to be one whose sole purpose was to subserve the destruction of the marriage tie and that such purpose was obvious. The court concluded:
“ * * * When that is so, the purpose is condemned; the condition which seeks to accomplish it is violative of sound public policy and is therefore void.”
There is no evidence on which to substantiate such a finding in this case.
In the case of Hamilton v. Ferrall, 92 Cal.App.2d 277, 206 P.2d 663, the California court, holding a similar provision in a will valid, said:
“In the pending case the trial court adopted the view that the intention of the testator was to protect his daughter; that he knew that so long as she' was married to Alex C. Hamilton she would be supported by him, but anticipating that the death or divorce of the husband would end his daughter’s support from that source, the testator tried to provide for her better support in either of these contingencies.”
The court also stated:
“ * * * When by will he creates a trust a liberal construction should be given to its terms, it being the policy of the law to carry out the testator’s intention so far as possible. * * * The language of the trust must admit of no other reasonable construction than that of illegality before a court will declare it invalid.”
I note the careful language of Restatement of the Law, Trusts, Second, Section 62:
“A trust or provision in the terms of the trust may be held invalid on the ground that its enforcement would tend to the disruption of the family, by creating an improper motive for terminating the family relation.
*594“A provision in the terms of the trust for the payment of a sum of money to a beneficiary if he should procure a divorce or separation from his existing' spouse, may be invalid.” (Emphasis supplied.)
In the case relied upon in the majority opinion, Davidson v. Wilmington Trust Co., supra, the court was very careful to point out that the husband and wife had lived in a state of contentment and happiness for some time and from the evidence there was not the slightest reason to suggest that the thought of divorce had ever so much as occurred to either until the testator intruded the objectionable thought upon them. The court also acknowledged that there were cases where the condition may not be calculated to influence the conduct of the beneficiary, and stated:
“ * * * The difference is plain between a condition which adjusts a gift to a fact situation as it exists at the testator’s death, and one which is designed to induce the creation of a fact situation after the testator has died.”
For the reasons aforesaid, I believe the judgment of the district court should be reversed and the case remanded to the district court with instructions to the county court to conduct a hearing at which evidence may be adduced in order that a knowledgeable determination may be made as to the validity of the challenged portions of the will.
I am also of the opinion that if the purported trust is void and where, as here, there is no other provision in the will expressing, either affirmatively or negatively, any contrary intention of the testatrix, the property should pass to her heirs at law under the laws of succession.
“The failure of a testamentary trust because of invalidity or otherwise does not render invalid other provisions of the will which are not affected by the trust. In the absence of a manifest intention or a provision in the will to the contrary, the property included in a trust will pass to the heir or next of kin of the testator, or to his residuary devisee or legatee, as the case may be, where the trust is invalid; * * * ” 96 C.J.S. Wills § 1060.BURKE, C. J., concurs in Judge TEI-GEN’S dissent.