¶1(concurring in part and dissenting in part): I concur in the affirmance of the judgment of the trial court but find myself unable to agree with that part of the majority opinion regarding the common law theory of accumulations which is known as the English Thellusson Act. As we stated in In re Estate of Yetter, 183 Kan. 340, 348, 328 P. 2d 738, our legislature has not passed any statute governing the accumulation of surpluses in trusts or estates and for that reason the provisions respecting the six-twentieths interest under the testamentary trust are not void. I think this court should be meticulous in its references to accumulation of surpluses in trusts or estates in order not to confuse our conclusions and holding in the Yetter case. With respect to the fourteen-twentieths interest, it is my opinion the trust created by the will of Sarah G. Foster providing for a life estate for Miriam F. Ball is valid but the provision that at her death the remainder over went to the children of her body is void because it clearly violates the rule against perpetuities.
¶2Obviously, of course, the express purpose and intention of the testatrix was to die testate or, stated in another way, her intention was not to die intestate, but still the provisions of her will had to be according to law. By those provisions she died intestate so far as any gift over to the remaindermen, children of the body of Miriam F. Ball, are concerned. Therefore, at the death of Miriam F. Ball the fourteen-twentieths interest and the six-twentieths interest should both revert back to the estate of the testatrix and pass under the laws of intestacy.
¶3I have no desire to extend this opinion by repeating the appropriate law, as I understand it to be, but I do wish to call attention to 2 Bartlett’s Kansas Probate Law and Practice, rev. ed., Rule Against Perpetuities, § 583, on Application of the Rule, pp. 114-119, and § 585, Operation and Effect of the Rule, p. 120, where it was said:
“The remainder which offends the rule reverts to the donor or becomes a *506part of the residue of his estate. The provision of the will being void, the estate goes as if such provision had not been made.”
¶4The author of the above work discussed the cases in Kansas including the McEwen case cited in the majority opinion wherein there was no intervening legal or equitable estate, but only a trust for the testator’s grandchildren for a period which violated the rule against perpetuities, and at the end of that time the same grandchildren were to take the fee simple title. In our present case, however, there is an active trust with the legal title in the trastees and the beneficial title in Miriam F. Ball for her lifetime, then a continuing trust with the legal title remaining in the trustees and the equitable title in the children of the body of Miriam until those children reach the age of twenty-three years, or Miriam dies, whichever is the later. Thus this trust must fail as to the children of the body of Miriam because of violation of the rule against perpetuities, and since it does not go to those children in fee simple title until the above provision is terminated, it cannot go through a residuary clause except by reverting back into the void trust. If we were to accelerate the fee simple title as was done in the McEwen case, the children of the body of Miriam would take at the death of the testatrix and thus the life estate of Miriam, which was equitable, would be cut out and the intention of the testatrix to give Miriam only the proceeds from the trust during her lifetime would be defeated.
¶5(dissenting); I concur with what is said in Mr. Justice Jackson’s dissenting opinion, but I wish to add the following: The decedent’s will was executed five months before her death, and the status of beneficiaries and potential beneficiaries was substantially the same on both the execution and operative dates of the will. The appellant, Miriam F. Ball, is the decedent’s sole heir at law. She was 38 years of age and had three living children when the will was executed and when the decedent died. Except for the specific bequest of the bank stock to Marjorie Staggs, the decedent’s will does not specifically name any other beneficiary except her daughter, Miriam F. Ball. While the will provides for a class of beneficiaries —the living children of the body of Miriam F. Ball and the children of deceased children of the body of Miriam F. Ball — it does not express any disposition to benefit any specific individuals except the daughter, Miriam F. Ball, and the granddaughter, Marjorie Staggs, as to the bank stock.
¶6The decedent’s will is very specific. The decedent clearly indicated her desire to protect and perpetuate the stock of the Gorham State Bank and her extensive farming operation. As to the bank stock, it was left in trust to Marjorie Staggs, distributable one-half at 25 years of age and the remainder at 30 years of age. The parties concede that this provision of the will vested title to the bank stock in Marjorie Staggs within the period prescribed by the rule against perpetuities and is not the subject of controversy in this litigation. All the other real and personal property of the decedent was devised to trustees, in trust, with the trustees to make monthly distributions to Miriam F. Ball during her lifetime of fourteen-twentieths of the *508annual net income of the trust estate. Upon the death of Miriam, that distribution was to be made during any remaining trust term to the children of the body of Miriam. The trust was to continue until the youngest child of the body of Miriam had reached the “age of twenty-three (23) years or at the death of (Miriam), whichever event occurs the later.” Upon the happening of those two prerequisites, title to the trust was to be vested in and distributed to the class of beneficiaries consisting of the then living children of the body of Miriam F. Ball, plus any children of deceased children of the body of Miriam F. Ball. Adopted children were specifically excluded from the talcing class.
¶7The parties, counsel, the district court, and this court are all agreed that the remainder to this class of beneficiaries above designated was continquent and that the trust was in violation of the rule against perpetuities that requires that property must vest within a life or lives in being and 21 years thereafter.
¶8The court has now come full circle. It recognizes in one breath that the common-law rule against perpetuities, in force in this state since statehood (Keeler v. Lauer, 73 Kan. 388, 85 Pac. 541; Klingman v. Gilbert, 90 Kan. 545, 135 Pac. 682; Lasnier v. Martin, 102 Kan. 551, 171 Pac. 645; Grossenbacher v. Spring, 108 Kan. 397, 195 Pac. 884; Kirkpatrick v. Kirkpatrick, 112 Kan. 314, 211 Pac. 146; Beverlin v. First National Bank, 151 Kan. 307, 98 P. 2d 200), is still in force, and that paragraph V of the decedent’s will violates the rule and is void in its entirety, but in the next breath it holds that it will reform the will by “excising” the infringing portions of paragraph V and declare the will as it should have been executed to permit the decedent to have left a valid will. Such a conclusion has no precedent in this jurisdiction or elsewhere to sustain it; it is wholly unwarranted, and places the court in the business of rewriting invalid wills of testators to establish what it deems to be the testator’s plan or interest.
¶9It is axiomatic that courts cannot make new wills for testators who have failed to make valid wills for themselves. If the court feels that the rule against perpetuities is no longer fitted to the wants and needs' of the people of the state, it should declare it to be inoperative so that the Bench and Bar may be properly guided in the future when drawing wills. It is not warranted in recognizing the rule as applicable to a decedent’s will, and then avoid its application by the device of excising the invalid portions of a will which violate it.
¶10I would reverse the judgment.