¶1(dissenting.) I am unable to concur in the conclusion • at which my brethren have arrived. I agree with them that the period fixed by the testatrix for the distribution of her estate is the time when John A. Whitson, if he • had lived, would have attained the full age of twenty-one years, and that the executors are to hold the estate as trustees until that time. This, in my opinion, suspends the absolute ownership of the property until that period f and the question of difference between us is whether there is any suspension at all, for it is conceded that if there is, then it is a suspension for a fixed time, a prescribed number of years, and' not limited by any life or lives in being, and is consequently unauthorized by our law.
¶2It was evidently the intention of the testatrix to increase the fund to be distributed, by the addition to the estate of • which she should die possessed, of the interest that should accrue thereon subsequent to her death up to the time of the division and distribution thereof directed to be made. This . increased fund is made the basis of such division and distri- ■ bution, and although it is true that the interest thus accrued is to be paid from time to time to four of her nephews named *151by her, and thus in one aspect of the case there is no accumulation, yet there is such in fact for all substantial purposes. The. interest, and the whole of it, is made a part of that fund, and although paid over in the meantime, it is so paid more in the nature of an advance than as an absolute payment, inasmuch as it is declared to form a part of the one half of the “ gross sum” to which these nephews are entitled in the distribution of the increased fund. In any view of the case, a portion of the fund to be distributed is accrued interest. To produce that interest the principal is necessarily retained in thé hands and under the control of the executors, as trustees. ■ That control is to be exercised by them for a specific period or term, and the entire estate is vested in them for that purpose; and conceding that the ultimate distributees may have vested estates or interests in the fund to be divided, yet they cannot confer an absolute and immediate ownership of-the property upon any one. The estate of the trustees prevents such an alienation, and there are no persons in being by whom an absolute ownership can be conveyed, nor can there be until the time designated by the testatrix for its distribution.
¶3If I am right in these views, the absolute ownership and power of alienation of the property is suspended for a longer period than is allowed by law, and the judgment of the special term should be affirmed.
¶4Judgment reversed.
¶5Emott, Brown and Lott, Justices.]