In the view I take of this case there is no occasion to consider the question whether the learned revisers of the statutes intended, when providing for the creation and division of estates, to establish the single rule that the power of alienation should not be suspended for more than two lives in being, or, in addition, to provide, as to remainders, against remoteness of vesting, following the rule of the common law. I, therefore, express no opinion in regard to the question.
In the seventh subdivision of the testator's will he divided his estate into three shares and dealt with each separately. The disposition of the third share is challenged; the courts below have held it valid after striking therefrom a void provision, and the judgment entered on that decision is now before us for review.
The seventh subdivision of the will relating to the third share reads as follows: "And the remaining third thereof to my said executor in trust for the purpose of paying the income thereof to my daughter Frances D. Wilcox for and during the term of her natural life, annually, and at her decease, I give, devise and bequeath to her issue share and share alike such income, and as each of her said issue shall attain the age of twenty-one years, I give, devise and bequeath to it one equal undivided share of the principal of said remaining third, and in case my said daughter Frances D. Wilcox, shall die leaving no issue born to her which shall attain the age of twenty-one years, then and in such case said remaining third *Page 308 of my residuary estate I give, devise and bequeath to my daughter, Maria E. Sanders, and my son Charles McCoy, share and share alike forever."
It is conceded by all that the provisions made for the issue of testator's daughter, Frances D. Wilcox, attaining the age of twenty-one years are void on their face, as illegally suspending the absolute ownership of personal property. The contention of the respondents, which has been sustained by the courts below, is that the gift over to testator's daughter Maria and son Charles, share and share alike, if the daughter Frances died leaving no issue, is valid as an alternative bequest.
The Real Property Law (Laws of 1896, chap. 547, § 41) provides: "Two or more future estates may be created to take effect in the alternative, so that if the first in order fails to vest, the next in succession shall be substituted for it, and take effect accordingly."
The chronology of this case sheds much light on the intention of the testator. He executed his will in August, 1872; at that time his daughter Frances was married; a child of this marriage died in 1869, aged three months; Frances was childless from 1869 until her death in January, 1906, a period of nearly forty years. When the will was executed in 1872, the testator was undoubtedly impressed with the idea that ordinary prudence dictated that he should provide a gift over, an alternative disposition of the residue, which embraced one-third of his residuary estate, in the event of his daughter dying without issue. The testator was certainly justified in assuming the strong probability was that his daughter would die without issue. I do not rest my opinion on the assumption that the gift over, by itself, implied alternatives. The provision as to the issue of Frances living and attaining majority was absolutely void and of no effect. With this void provision lopped off, the will could stand as providing that in case the testator's daughter Frances died without issue, the gift over should take effect. The greater included the less.
Without regard to the void provision, the testator discloses the clear intention to give to his daughter Frances the income *Page 309 of one-third of his estate for life, and if she shall die childless he gave to his daughter Maria and his son Charles the principal of the residuary estate. The intention of the testator is clear and unmistakable — to provide for the disposition of the residuary estate in case his daughter Frances died childless. The statute already cited was, in my opinion, designed to cover just such a case as is here presented.
It has been many times said, judicially, that the intention of the testator is sought after by a court of equity even in wills drawn by unlearned men, where inadequate and inappropriate language has been employed, in order that the desire of the testator in regard to the final disposition of his property after he has passed away should not be defeated.
Two distinct provisions are found in this will when properly construed in the light of testator's clear intention; first, the death of Frances without issue; second, Frances having issue who should attain the age of twenty-one years. The first is valid; the second is void and of no effect.
The decree of the surrogate and order of the Appellate Division should be affirmed. I dissent from the decision about to be made.
VANN, WERNER, HISCOCK and CHASE, JJ., concur with CULLEN, Ch. J.; EDWARD T. BARTLETT, J., reads dissenting opinion; HAIGHT, J., absent.
Ordered accordingly.