If I thought it legally allowable (under a sort of cy pres theory that if the testator's intention cannot be carried uot we should carry out something as nearly like that intention as possible), I should be glad to see the court change the express terms of this testator's will so that the age of vesting ofcorpus in Alexander's children should be twenty-one instead of twenty-five years. Surely, that would come much nearer what the testator intended than does the changing of the trust "until twenty-five years of age" into a trust for life, the gift at twenty-five of the corpus fading out of the picture because of its illegality. But I do not think it is within the proper function of the court to change the terms of the testator's will from twenty-five years to twenty-one years, thereby making a new will for him.
For a like reason I do not see my way to agree with the sixth paragraph of the decree, whereby, in place of the trust for maintenance and education of Alexander's children until *Page 334 twenty-five years of age, there is created a trust for such children for life, because of the fact that the gift of thecorpus to such children at twenty-five years is void. I could unite in upholding the trust until twenty-five as separable from the gift of the corpus, although I think to do so would overrule Hewitt v. Green, 77 N.J. Eq. 345, and Graves v.Graves, 94 N.J. Eq. 268, but, further than this, I do not see my way to concur.
I agree that Alexander's children have no present standing as possible testatmentary nominees of Eleanor.
For affirmance — None.
For reversal — PARKER, WHITE — 2.
For modification — THE CHIEF-JUSTICE, TRENCHARD, MINTURN, KALISCH, BLACK, KATZENBACH, CAMPBELL, VAN BUSKIRK, CLARK — 9.