' The special guardian" for the infants next of kin submits that the provisions of the will, ór some . of them, contravene the Revised Statutes by "illegally suspending the power of alienation and creatin'g trusts' for terms and purposes, not "authorized. It will be . necessary to" examine the several, clause's of the.'will in thfeir .order. . ’' ' '' . "A. '
The first clause creates ti trust, to cdllect the Sum secured by a certain policy' of insurance;' to divide this sum mto ' four'equal parts; tó pay to Gedrge Ruppert óné of "those parts; and to invest the three parts remaining and" hold tfiem'in ti.TÍst' for‘John," Jacob and"William,until they *485respectively arrive at age; and to pay each ■ of them, on his arriving at age, his part of the principal so invested, with the accumulated interest thereon.
This is a valid trust. A direction for accumulation of personal property for the benefit of an infant, then in being, to take effect at the death of testator, and to end with the minority of each cestui que trust, is expressly authorized by the Revised Statutes;
“ § 3. An accumulation of the interest of money, the produce of stock, or other income or profits arising from personal property, may be directed by any instrument sufficient in law to pass such personal property, as follows:
“.1. If the accumulation be directed to commence with .the date of the instrument, or from the death of the person executing the same, such accumulation must be directed to be made for the benefit of one or more minors then in being, or in being at such death, and.to terminate at the expiration of their minority. * * *
“ § 4. * * * A direction.for an accumulation in either of the eases specified in the last section, for a longer term than the minority of the persons intended to be benefited thereby, shall be void only as -respects the' time beyond such minority.” (3 11. S., ed.,p. 15.)
This bequest and trust are therefore good.
Thé next question arises under the second clause of the , will. , This clause is a full disposition, of the testator’s . residuary estate, “ except as hereinafter provided.”' "It is only out of the usual place in the will; had it been placed at the end of the instrument, it would not have attracted .objection. So far as it .comes in . conflict with any subse- , quent valid clause or provision of the will, it must be held to be modified thereby and subject thereto.
The fourth clause creates a trust or a power, in trust, in all the residue of the real and personal estate, during . the life of the widow, and charges her support upon the income of the r.eal estate so long as .she shall live. This ’ is valid beyond a doubt, and suspends the power of aliena*486tion of the residue of the real estate, and the absolute ownership of the residue of the personal property, during ■ one life—that of the widow.
■ The fifth 'clause of the will creates two trusts, or rather, what may be considered as two. The first is, to support and educate each child, except Phillippine, out of that child’s respective share of the income of the residue, both real and personal, until the majority of that child. • This . is unquestionably good.
The second is, to continue, after the. majority of each child, to hold his share of-the- principal in trust till the ■youngest attains majority'; to pay each child, ón majority, - that child’s accumulation of the income on his share, over •the amount which-has been expended for his "support; ‘and only to' divide the principal of the residue, real and personal, among all the children, when • the youngest
' "attains majority, '■ ■
t The duties imposed on the executors as trustees were, then:
' -‘1st. To hold "in trust during the widow’s life for her
- support. • • ' ■ ■
2d. To hold in trust the surplus' income, after paying . widow’s support, or after her death, for support of minor children, and for accumulation of what shall remain.
■ 3d. To pay over his share of unexpended and accumulated income to each child attaining majority. *’'■
fth.- To continue to receive the income of the shares of both adult and minor' children, till William attains majority."' • ' ■ ' ’ '-■
■5th. To sell real estate and' distribute when" William attains majority." ■ ' - - • : -
William being the youngest child, át thé timé of the death of the testator, and the creation of the estate in the - trustees, the decisions have settled the point that it is his • minority that is to bé considered: (Eels v. Lynch, 8 Bosw. Supr. Ct. R., p. 465.)
'Wei-have, as -to the duration óf'thé trust, first,-the life *487of the widow, and secondly, the minority of William. These must both expire before the residuum is to be divided, before the power of alienation of the realty can be .exercised, or the ownership of the personalty transferred.
There is no disposition made, in this, clause of the will, of such income as may accrue on each child’s share-of the real estate, after that child attains majority. And it is this that has made the difficulty in the will. For instance, John, the testator’s son, arrives at age. He then receives his arrears of accumulation of unexpended income. But his share is still suspended. What becomes of the income yet to accrue upon it till William arrives at age ? It must go on earning income. It must remain in the hands of the trustees. The trustees must continue to receive the income upon it. Does this income go to and become distributable among the legatees named in the second section? I think it does. ,
The will before me differs from that of Michael Burn- - ham, construed by the Court of Appeals in Savage v. Burnham, 17 N. Y., p. 561. In that case .the -trust was: 1. To sell the real estate on the death of the widow; 2. That the widow should, during her life, receive to her use one-third the income of the realty, the remaining two-thirds, until the. sale, to be deemed- personal estate and subject to the same dispositions, which were; 3. To apply the income to support of six sons till they respectively attained age, and four daughters, till • they respectively attained age or married; 4. To transfer the principal of the fund to come from, the sale, equally, to the children; the shares of the sons to vest at age, the daughters’ shares to vest in trustees, to pay the daughters the income for life, with remainder to- the daughters’ respective; issue. . This was held good, because the trust provided for no unlawful accumulation. The trust ceased on the principal of each' share, when the son or daughter entitled to that share should attain lawful age.,. The remainders over, *488and all limitations beyond the. majority of the-children were, however, held void, as to each share so limited.
In that case, the principal of each share was to go to the child when he came of age. Here, the principals of the shares of the adult children still remain suspended until the youngest child comes of age. There was an accumulation directed in the Btimham will, but not only the accumulation on each share went to the child on his coming of age, but the share went also. In the present casé the accumulation goes, but the share remains. The share remains and continues to accumulate, after the payment of the accumulation made at majority. The share remains suspended for the benefit Of adults aiid "infants together; and this will continue to be "the case even after the third infant has come of age, and until the fourth does. There, there wás a division of the principal" of the fund to take place on each successive majority. Here, the1 principal remains intact -until four' minorities have expended themselves. ■ •
In that case, as in this, the life of the widow was to be r'éckonéd as one of the lives beyond "which" absolute ownership could not be suspended. We, therefore, begin to calculate with the widow’s life. In Savage v. Burnham, there was -one minority, - as to each- share, to be super-added to the widow’s life, to estimate -the suspension. In that case, Judge Comstock remarked, in "delivering his opinion: ' ; - - :
■ “ If the will had provided that the whole estate should be kept "under this, trust till "all the lives dr minorities be spent, then it might well be that the absolute ownership of the whole would be deemed suspended, and - the trust would fail'.'” : •
The trust in Savage v. Burnham did not infringe upon the provision of the Revised Statutes (above quoted), which limits trusts for accumulation to the -case of infants. The trust- in -the will before u's is for an accumulation for the benefit of the children, - aftér the majority of each *489of them except William, and until the majority of William. . ■ . •
The case of Eds v. Lynch, 8 Bosworth R., p. 465, is directly in point, and furnishes, an .almost absolute precedent in this connection. • .
■The direction of the, will, in that case, was that “my youngest children,, Marcellus. and Mary, now infants, be educated out of the income, of. my real estate; and that they, and. all my infant children, have maintenance until they, attain the age of twenty-one years out of the income.” The real estate was not to be sold till the youngest, child should attain age. This was held good, as terminating -with the majority,of Mary, the youngest child. .The. trust for the maintenance, of each child ceased with that .child’s majority. S.o in this,case. The surplus of the. income was there bequeathed to. the widow until the youngest child attained-.majority. In this case the whole interest on each adult’s share goes,- under-the second clause of Valentine Buppert’s will, to George, Phillippine, John, Jacob and William, as residuary legatees. ■
■. -I-must consider .this trust tobe good, under the decision in Eels v. Lynch, although, had the question never been . passed.upon, I should have held the accumulation of income on the adults’ respective shares, after their majority, to be void.
. . The sixth- clause .of this will is clearly in conflict with the statute, in as far as it attempts to create a trust for . the investment and accumulation of Phillippine’s share of income, beyond her attaining of age, and until the youngest child of the testator ■ (who is not interested in that share) shall attain , age. The prohibition of such a suspension is similar as to both real or personal property. It must . , terminate , with the minority-of the person for whose benefit the accumulation is directed. I suppose the , provisiones valid as to the investment -and accumulation . of Phillippine’s share, tip to the termination -of her own minority,-but-no- further... - . .
*490It is well settled that the valid portions" of a trust void in part, will be -upheld in construction by the. Courts. (DeKay v. Irving, 5 Denio R., p. 646; Parks v. Parks, 9 Paige P., p. 107; Harrison v. Harrison, 42 Barb. S. C. R., p. 162; Williams v. Williams, 8 N. Y. R., p. 538.)
The seventh clause prohibits the sale of any portion of the real estate, until the arrival at age 'of the youngest child, William. -A power of sale is then given to the executors, to-be exercised at that time.' ■ This is good, as there is no unlawful suspension of the time for its exercise. The widow must die, and William must come of age; then the executors must sell.
The ninth clause attempts to appoint a testamentary guardian for the children. This - is invalid, unless the consent of the mother be given. Formerly, by the Revised Statutes (3 P. 8., i>ih ed.,p>. 243, § 1), á father could absolutely appoint a testamentary guardian by his will.- This power was sometimes, exercised so as to deprive the mother of the care, custody and' tuition of the children she had brought into the world. It was an arbitrary power in the ..father, given in consonance with the policy of the English Common Law, which- suspended the legal existence of a wife during marriage. This status of married women was never accepted voluntarily by the Ecclesiastical Courts of England, which persisted in recognizing their existence and capacity in many ways. (See cases cited in estate of Bronson, supra, p. 467.) The Legislature of this State turned its attention to this question in 1862. {Acts of 1862, chap. 172, § 2, p. 343.) It declared that “ no man shall' create any testamentary guardian for his child, unless the mother, if living, shall, in' writing, signify her assent thereto:” This appointment is, therefore, void, it- appearing that the mother of the minors is living, and it not appearing that she has signified her assent to the appointment of Frans; Ruppert as testamentary guardian.
It appears, by the account of the executors, that they *491have not attempted to interfere with the fee of the testator’s real estate, and that their acts have not affected the rights of the parties in interest in the estate, as I have considered them to exist.
It also appears that the third clause of the will has been inoperative, the real estate therein referred to having been foreclosed and sold under a mortgage, which existed at the time of testator’s death.
A decree will be made declaring the above conclusions, and settling the accounts of the executors accordingly.