#### Clara Hacker et al., Plaintiffs, *v.*Joseph Carl Hacker and Philip Young, Defendants.

(Supreme Court, Rockland Special Term,

January, 1912.)

Wills — Disposal by will — Right of disposal and matters disposable by will — Interpretation and construction — Actions and proceedings to judicially construe will — Invalidity on face of will.

Where material provisions of a will are illegal and cannot be separated from the rest without' defeating its general scheme the • whole will is void and the property must be disposed of as in case of intestacy.

A testamentary provision, that testator’s entire estate, absolutely devised to a nephew by a previous clause of the will, shall only be disposed of in the name of the testator’s family, thus limiting the nephew’s interest to a life estate, will not be declared invalid so that the estate may pass to him under the absolute devise, as such a construction would disregard the testator’s wishes and defeat his plan, but both provisions must be construed together, the will declared void and the testator held to have died intestate except as to a legacy given by the will.

Action for the construction of a will.

Katz & Sommerich, for plaintiffs.

Harvey DeBaum, for defendants.

Tompkins, Ji.

This is an action to construe the last will and testament of Ulrich Haclcer, which provides as follows:

*“*First, after my lawful debts are paid, I give, devise and bequeath all the remainder of my estate, both real and personal, to my nephew Joseph Carl Hacker. My farm and house and furniture household goods therein contained where T now reside at Hanuet in the Town of Clarkstown, County of Rockland, and State of Hew York.

*“*Second, that the said estate shall not be given or sold only in the name of the Hacker Kamily, and must remain the Hacker estates forever.

" Third, I hereby nominate and appoint my nephew Joseph *381Carl Hacker the Executor of this, my Last Will and Testament, and hereby authorize and empower him, the said Joseph Carl Hacker, to compound, compromise and settle any claims or demand which may be against or in favor of my said estate.

" Fourth, I give, devise and bequeath to Philip Young one thousand dollars.”

The plan and scheme of the testator’s will was to give all of his estate to Joseph Carl Hacker, except the $1,000 legacy to Philip Young; and that such of his estate, both real and personal, as should go to his nephew, Joseph Carl. Hacker, should forever remain in the name of the Hacker family, “ and must remain the Hacker Estates forever;” and the will provides that the said estate shall only be disposed of in the name of the *“*Hacker Family.” The testator’s plan seems to have been to perpetuate all of his estate, save the $1,000 legacy, in the name and for the benefit of the “ Hacker Family,” limiting, in effect at least, the interest of his nephew, Joseph Carl Hacker, to a life estate, and without absolute power to sell or dispose of the property as he might see fit. This, of course, is an illegal suspension of the power of alienation, and provides as well for an unlawful accumulation, and is void.

While an invalid arid ineffective provision in a will may be ignored, and effect be given to other provisions that are in themselves valid, yet that cannot be done where the- clear intention of the testator would.be thereby defeated, and the entire scheme of his will thwarted.

Here, it seems to me, that to hold the second clause of the will invalid and to so construe the will that the entire estate goes absolutely to the nephew, Joseph Carl Hacker, would be to disregard the testator’s wish and defeat his plan; and the rule in such a case seems to be: *“*Where material provisions of a will are illegal and cannot be separated from the rest without defeating its general scheme, the whole is void, and the property must be disposed of as in case of an intestacy.” Harris v. Clark, 7 N. Y. *242.*

It is clear that it was not the testator’s intention to give the entire estate absolutely to his nephew; and yet that would be *382the effect if the court should hold the first clause of the will to he valid, and the second void.' It seems to me that the first and second clauses of the will must be read together and both held to be void; and that, as to all of the property, real and .personal, of the testator, except the $1,000 legacy to Philip Young, he must be deemed to have died intestate.

I have not overlooked the rule that a clear and decisive bequest or devise cannot be cut down or taken away by. words in a subsequent clause that are not as clear and decisive as the bequest or devise; but it seems to me in this will, that the testatoPs intention that his nephew, Joseph Oarl Hacker, should not have the absolute ownership, is made very clear by.the second clausé of the will, and is as explicit and decisive of his intent as are the provisions of the first clause of said will. The testator evidently did not’ intend to die intestate as to any part of his estate, else he would not have made a will at all; but he did endeavor to dispose of his estate by will in a manner contrary to law, and thereby failed to dispose of it at all, except the $1,000 bequeathed to Young.

'Submit findings in accordance herewith; and counsel fertile defendant Hacker is given ten days within which to submit requests to find.

Judgment accordingly.