The principal purpose of the testator as shown by his will was to provide an income for his wife and daughter during their lives severally, and to provide support, education and maintenance for his grandson during his life or until he should attain the age of twenty-six years.
If we treat the fund provided in said paragraph of the will as divisible into three separate and independent trusts, the one-third part thereof for the benefit of the testator's wife should be held during her life and then subdivided into two parts, one each for the benefit of the testator's daughter and grandchild. In that case the continuance of the trust would be measured by the life of the wife, and then each subdivided one-half by the life of the daughter and the grandson severally. So far as it gives the whole of the income of such one-third of the principal after the death of the widow to the survivor of said daughter and grandson, it extends the trust beyond the time limited by the statute, and must be held invalid. (Robb v.Washington Jefferson College, *Page 46 103 App. Div. 327; 185 N.Y. 485.) There is no provision in the eighth paragraph of the will bequeathing the principal of such one-third at the termination of the trust. It would pass, therefore, under the residuary clause of the will, or, as in case of intestacy, to the testator's next of kin. The one-third part thereof held for the benefit of the daughter should upon her death be held for the benefit of the grandson, and as there is nothing in the eighth paragraph of the will bequeathing such fund after the termination of the trust, that, too, would pass under the residuary clause of the will, or as in case of intestacy. The third part held for the benefit of the grandson, in case of such grandson dying before the age of twenty-six years, leaving lawful issue him surviving, is to be divided among said issue; but in case he did not leave issue him surviving, then between the testator's daughter and widow or the survivor of them, and in case of such death not leaving lawful issue and not leaving testator's daughter or widow, or either of them, him surviving, it would pass by the express direction of the will into the general estate of the testator, and thus to his next of kin.
The testator was unfortunate in so expressing himself in the eighth paragraph of the will as to cause the difference of opinion that exists among the parties interested herein as to his intention or meaning. It seems to me clear from the will, however, that he did not intend that the entire principal fund included in said eighth paragraph of the will should be held in one fund until the death of his wife, daughter and grandson and the survivor of them. If his grandson should arrive at the age of twenty-six years before the death of his wife and daughter, and that according to the express terms of the will was a possibleevent in the mind of the testator, it would not terminate the trust for the benefit of either wife or daughter. The "full share" of the grandson in the principal as therein mentioned, therefore, must refer to the one-third part of the fund producing the income for him under such provision of the will. In that case it would be necessary, at least at that time, to divide the principal of the fund into *Page 47 parts and the full share of the grandson would in that case be a one-third part of the principal. The intention of the testator is also by that part of the paragraph shown as to the final disposition of any remainder not otherwise disposed of as he directs that such one-third of the principal, subject to the contingencies of his grandson leaving lawful issue or the testator's wife and daughter or one of them surviving him, become a part of his general estate. It appears from his direction in regard to that one-third that a division of the trust fund into separate and independent parts and trusts was assumed by the testator. It is, as we have seen, actually provided for and directed to the extent at least of the fund on which income is to be paid to the grandson.
Such actual division of the principal fund is sufficient in my judgment to show the testator's intent that the principal as well as the income should be divided into three parts and upon which to base the conclusion that the testator, although he may have contemplated holding the entire fund in solido for the purpose of investment, intended that it should, for the purpose of carrying out the provisions of the will, be divided into three separate and independent funds for the benefit severally of his wife, daughter and grandchild. As such intention is expressive of a lawful purpose under the statutes of this state, and any other intention would be contrary to a well-known statutory restriction upon the right to bequeath personal property in trust, the conclusion which sustains the will and carries out the principal purpose of the testator in providing for the persons named, will be held in preference to a conclusion which leaves his widow and grandson wholly unprovided for by any express provision of the will.
We think that the judgment appealed from should be modified so that the paragraph marked "First" shall read as follows: "A trust in one-third of the estate to pay the income to the widow for life, and upon her death to divide it equally between the daughter and grandson, the daughter's share of income to be paid to her for life, and the fund producing such income, i.e., one-sixth of the estate, to be freed from *Page 48 the trust upon her death, the grandson's share of income to be paid him until he attains the age of twenty-six years, and the fund producing said income to be freed from the trust upon his attaining that age, with remainders over to the testator's next of kin." The judgment as modified should be affirmed, with costs.
CULLEN, Ch. J., GRAY, EDWARD T. BARTLETT and WILLARD BARTLETT, JJ., concur with CHASE, J.; VANN, J., concurs with HAIGHT, J.
Judgments reversed, etc.