#### J. Warren Hardenbergh and Others, Executors of and Trustees under the Last Will and Testament of John M. Jones, Deceased, Late of Jersey City, New Jersey, Plaintiffs, *v.*William O. McCarthy, Defendant.

First Department,

February 11, 1909.

Will construed — when no unlawful suspension of power \of alienation — when whole will not affected by invalidity of part — vendor and purchaser — specific performance.

Where a will places a portion of the residuary estate in trust the income to be paid to the testator’s brother'for life and at his death the corpus to be divided into shares equal to the number of the brother’s cMhfien surviving him or dying leaving,issue surviving, each nephew or niece of full age to take one share, with a further provision that the share of any child of the life tenant who shall not at the time of his death have attained majority, shall continue to be held in trust until majority, and then be turned over, the income in the meanwhile to be paid to the minor, and further providing that if' any minor child of fhe life tenant dies-before majority without lawful issue his share shall-be equally divided and added to the shares of his surviving brothers and-sisters, or the issue of those who have died, each infant child surviving the life tenant takes at once an estate in expectancy to be held in trust for his minority, subject to be divided only if he die during infancy without issue.

*539. As eacli infant child of the life tenant takes a defeasible estate at the life tenant’s death; and as in case of the death of such child during minority without issue, his share is to be divided and added to the shares of the surviving brothers and sisters, and as there is no direction to hold the share of any child longer than the date of his majority, or earlier death, there is no unlawful suspension of the power of alienation on the theory that if two minors should die without issue, the power of alienation would be suspended for three lives and a minority, to wit, the lives of the life tenant, the two infants dying without issue and the minority of a third.

Even if the devises contingent on the death of an infant child of the life tenant without issue be deemed to suspend unlawfully the power of alienation, the' offending clause may be cut out of the will without disturbing the harmony of the other provisions or affecting the purpose of the testator, which was merely to create a trust for the life of the brother, with remainders to his issue *per stirpes,*the provision.that the shares of infants be held by the trustee dur- . ing a minority being merely a convenient way of bridging that period so that each child on arriving at age should take his share outright.

A vendee who has agreed to purchase lands held by the trustees under said will and who rejects title solely upon the ground that there was an unlawful suspension of the power of alienation, will be required specifically to perform although persons having an interest in the construction of the will are not made parties, where there are no disputed questions of fact.

Submission of a controversy upon an agreed statement of- facts, pursuant to section 1279 of the Code of Civil Procedure.

*John B.*Talmage, for the plaintiffs.

*Harold Swain,*for the defendant.

Scott, J.:

. This is a submission of a controversy between the plaintiffs, as executors of the last will and testament of John M. Jones, deceased, as vendors, and the defendant as vendee of certain real estate situated in the city of hfewYork. On July 20,1908, the parties entered into a written contract of sale of the premises in question. The plaim tiffs proposed to convey under a power of sale contained in the will of their testator. The defendant, admitting that the power is suflbcient as to its terms, claims that it is inoperative because conferred upon the executors for the purpose of carrying out an illegal and void disposition of the testator’s residuary estate, to which alone the power of sale applies. By his will the testator, after making many specific bequests and devises, directed that his residuary estate should *540be divided into three parts, one of which is given to a sister Abby L. English, and another to a sister Maggie E. Bliss. The question at issue arises respecting the disposition of the third part. This is given to the executors in' trust to hold the same *and*collect the income thereof, and, after paying taxes and'assessments and proper charges, to pay over the net income to the testator’s brother, Enos F. Jones, for his life. At the death of Enos F. Jones, the said share is to be divided, into as many equal shares as will equal the number, of children of Enos who may survive him, and the number of his children who may then have died leaving lawful issue them surviving. At the death of Enos, eacli of his children who may survive him and shall then have attained the age of *twenty-one years*-shall have and take one of said shares, and the lawful issue of any child of Enos who may have predeceased him shall have and take one of said shares..

The will then proceeds as follows: “ And the share of any child ■ of my said brother Enos who shall not-,, at the time of his death have attained the age of twenty-one years shall continue .to be held in trust as aforesaid by my executors or the survivors or survivor of them or those or the one who may qualify and act, for such child until he or she shall attain that age, and be then paid, transferred or conveyed to him or her —

“ And I give, bequeath and devise over — accordingly and' until the attaining of the age of twenty-one years by any taker entitled to receive under the foregoing provisions applying' to persons who are governed by this limitation as to age the net income of his or her share so to be held in trust is* to be paid semi-annually to the'duly appointed guardian of the minor for whom the share is held.-

“And if any child of my said brother Enos, who shall survive him, shall die 'before 'attaining the age of twenty-one years leaving, no lawful issue,' the share of the child sc dying is to be'equally' divided between and added to the shares of his or her surviving brothers and sisters, and the shares of the lawful issue of any deceased child of my said brother. '

“ But if any child of my said brother Enos shall die before attaining the age of twenty-one years and shall leave' lawful issue him or her surviving, the share of such child so dying is to be paid, trans*541ferred, assigned and conveyed unto such issue, if one, wholly, and if more than one, share and share alike.”

At the time of the testator’s death, his brother Enos, who was then living but has since died, had seven children, three of whom were infants. All of the seven are still living and are all of the children of Enos. The defendant’s contention is that the remainder over, in the event that any child of Enos should die during infancy, leaving no issue, creates an illegal suspension of the power of alienation. It is claimed that if one of the children of Enos should die during infancy, leaving no issue, a part' of the share held for him by the executors would be added to the shares held by the executors for the other two infants, and if one of these should die in infancy, a part of his share, including the contribution thereto from the share of the infant first dying, would be added to the share then held by the executors for the surviving infant. Hence, it is argued that as to some part of the residuary estate the power of alienation might be suspended for three lives and one minority, to wit, the life of Enos; that of the infant first dying; that of the infant secondly dying, and the remainder of the minority of the third infant. This objection is based in large part upon the case of *Simpson*v. *Trust Company of America*(129 App. Div. 200), lately decided by this court. The analogy between the two cases is, however, far .from perfect. In the *Simpson*case the will provided that certain shares of the estate' should be held by the executor for the benefit of a brother and sister during their respective lives; that upon the death of either his or her part should be added to the share of the survivor, and upon the death of the last survivor the whole principal should go to a nephew and niece. Mo estate whatever was given to either brother or sister, in possession, or remainder, the only interest of either being a life interest in the income. It was considered that the share or interest of a surviving brother or sister, to which was to be added the share of a sister or brother dying, must of necessity be deemed to be the share held in trust by the executor for the benefit of the survivor, because there was no other share of such survivor to which it might be added. Mor could the cross-remainders, which resulted in an illegal suspension, be disregarded without destroying the whole scheme of the will, which was that the income of the shares set apart for the brother and sister should be *542enjoyed by them so long as either of them lived, and that the'whole principal should then go to the nephew and niece. To have.cut out the cross-remainders would either have deprived the surviving brother and sister of a part of the income intended to be enjoyed by him or her, or would have deprived the. nephew and niece of a part of the principal -intended to be ultimately paid to them.. In either case the testator’s intention would be destroyed. In the present case each infant child of Enos surviving him takes at once an estate in expectancy in the share held for him or her by the executors during minority, subject to be divested only if he or she shall die during infancy without lawful issue. ' Such infant, therefore, takes at once upon the death of Enos'a defeasible estate in the share set apart for him. The -provision of the will is, in case of the death.of an infant child of Enos, without issue, that the share of such child shall be “ *divided between*and added to the shares of his or her surviving brothers and sisters.”

The validity of the contingent devises in case of the death of an infant child.might well be upheld upon the theory that the testator intended that the share df such child should be , divided between and paid over tó the surviving brothers and 'sisters, for there are no words in the will directly indicating an intention that the executors should continue to hold any child’s share longer than the date of the attainment of his majority, or his earlier death, and the estate in expectancy which each -infant holds would be a sufficient “ share ” in the-estate to afford something to which an addition "might be made. If, however, we go to the full length of the defendant’s contention and hold that, as to the portion of the share set- apart and held by the .executors for an infant child of Enos who dies in infancy, without issue, the will provides that it shall continue to be held by the executors during the infancy or life of a second child and the infancy of a third and thereby as to such portion-creates an illegal suspension of the power of alienation, still the illegal disposition may be, cut out of the will without disturbing the,harmony of its other provisions, or -affecting the obvious purpose which the testator had in mind. His scheme for the disposition of the one-third of the residuary estate is perfectly clear. He desired-that his brother Enos should enjoy the income during his life, but ,not the principal. "At -the death of Enos he desired that -the principal *543should be divided between the children and descendants of Enos in equal proportion *per stirpes.*It was no part of his general scheme to extend the trust beyond the death of Enos. So as to Enos’ adult children, and the children of a deceased child, whether adult or infant, he provided that their share should be paid over at once. It was only as to infant children of Enos that he provided for a continuance of title and possession in the trustees, and this evidently was intended merely as a convenient way of bridging over the term of minority, for each child upon arriving at age was to take his share outright, and if any child should die during infancy leaving issue, such issue though necessarily under age, were to take. Throughout all the provisions as to this one-third of the residuary estate there appears a careful avoidance of the possibility of tying up the property beyond the permissible period, even to the extent in two separate contingencies of providing that shares might go directly to infants. It is most improbable that the testator intended to make an illegal disposition in case of a child of Enos dying in infancy without issue, and if by the inadvertent use of language he has so provided, there is ample authority for separating the illegal provisions from the legal and upholding so much of the will as is free from objection. *(Kalish*v. Kalish, 166 N. Y. 368, and cases therein cited.) We do not consider that the absence of those who may have an interest iii the construction of the will renders it improper to require the purchaser to complete his purchase. There is no disputed question of fact in the case, and the question of law involved does not seem to us to be so doubtful as to. render the title unmarketable.

There must be judgment for the plaintiffs as prayed for in the submission, with costs.

Patterson, P. J., McLaughlin, Laughlin and Houghton, JJ., concurred.

Judgment ordered for plaintiffs, with costs. Settle order on notice.

*

*Sic.*