majority">By the Court, Johnson, J.

In respect to the personal estate of the testator, the obvious intention to be gathered *154from the "provisions of the will was, to have it sold hy the executor, and the proceeds after paying twenty-five dollars therefrom to Samuel Stacey, the child and heir at law of a deceased daughter of the testator, divided into eight shares, one of which was to he paid to the testator’s daughter Bhua Mosher, directly, in her own right, as her share. Five of the other shares were to he retained hy the executor, and the interest only, on one share, to he paid hy him, to each of five surviving children named in the will, during the life of each; and two were to he paid over, one to the heirs of Rebecca Daniels and one to the heirs of Maria Nickerson, if any such heirs .should he living at the death of the testator. In case no heirs of either of the persons last named should then he living,,the executor was to retain the share designed for such heirs, and pay the interest thereof to the testator’s surviving children, during their lives. Upon the death of the surviving children of the testator,, or either of them, the share of which the one so dying had the use during his or her life, was to go directly and absolutely to his or her heirs if there were any heirs or issue then living. If not, the use or interest of such share was to "be paid by the executor to the testator’s surviving children, during their lives. It is quite apparent that the testator used the term “ heirs” of bis children then living, or- deceased children, to designate lawful issue of such children, or other heirs contradistinguished from and not including his own children. It is claimed on the part of the plaintiffs that upon the death of either of the surviving children, without heirs, the share of which such child had had the use, went directly and absolutely to the testator’s remaining children. But it is quite clear, I think, from all the terms and provisions of the will, that the intention of the testator was to give the survivors the use, only, of such share during their lives equally. He first provides that the use or interest of the share, one-eighth, shall "be paid to each of his children living, during the life of such child. Then, at the decease of any child it is provided that *155the entire share shall go to the heirs of such child, if any heirs are living at the time of such death. If not, then such share is to go to his “ children who are then living, or to their use, as above or hereafter specified.” Nothing but “ use” is specified above in the will, for the living children, and use or interest only, is afterwards specified, in providing for the shares designed for the heirs of Rebecca Daniels, and Maria Nickerson, in the event of there being no heirs of these persons living. The same disposition, precisely, is made of the seven shares into.which the proceeds of the real estate when sold was to be divided. As to the seven shares, therefore, it is manifest that nothing was given or intended to be given, to the five living children named, or any of them, except interest or use for life.

This brings this disposition of the personal property directly within the prohibition of the statute, in regard to the suspension of the absolute ownership of personal property for the."period of more than two lives in being at the death of a testator. (1 R. S. 773, § 1.)

It is claimed on the part of the plaintiffs that the grandchildren living at the death of the testator took a vested interest in the share of their parents, subject to open and let in after-born children. But this clearly is not so. Their interests were not vested, but contingent, and depended entirely upon the event of their surviving their parents. If they did not, the use of the share and the trust continued to other beneficiaries, and the absolute ownership would necessarily go to others. Whether it would ever vest in the grandchildren could not be determined until the death of their parents. The rule is, that if, according to the provisions of the will, such a suspension of absolute ownership may possibly happen, it renders the bequest void, the same as though the happening of such event were inevitable.

That such may be the result in regard to either or all of these shares is quite obvious. In case of the death of either one of the children of the testator without heirs, the absolute *156ownership of his or her share would necessarily be suspended through each of the five lives. Each survivor, in that event, would take his proportion of the use of such share during life, the use in such case of the entire share continuing to the survivors in succession through the entire series. Each share being liable to this unlawful suspension of absolute ownership, the disposition of at least five of the seven by the will is void.

In respect to the real estate, the executor, as trustee, took, under the will, no title to any portion of it. It is not given to him in terms; nor is he to have any thing to do with the rents and profits. Every thing which he is required by the will to do with the real estate, as such, may be done under a simple power without the vesting of any title in the trustee. It is therefore a mere power in trust, and the lands not absolutely disposed of by the will descended to the heirs of the testator subject to the execution of the trust as a power, if valid. (1 R. S.129, §§ 58, 59.. De Peyster v. Clendining, 8 Paige, 304, 5.)

The executor, as trustee, never takes a fee by implication, unless the fee in him is necessary to the complete execution of the trust. (Tucker v. Tucker, 1 Selden, 408.) The heirs at law of the testator, therefore, took all the real estate not devised absolutely by the will, subject to the execution of the trust as a power, if valid, and subject also to the estate for years therein given to Mrs. Mosher. The absolute power of alienation of the title was not suspended at all, by the will, and no question under the statute arises in the case. The power of the executor to convey was suspended for the term of three years, but in the mean time the remainder, subject to the execution of the power, remained perfectly vested in the heirs at law.

The devises and bequest to Mrs. Mosher, being absolute and unconditional, and in nowise connected with the trusts created by the will, are not affected by its void provisions. She must therefore be held to take as by a valid devise, all *157the interest in the real estate given directly to her by the terms of the will. As to the residue of the real estate not devised, and in reference to which a power in trust to sell only was given to the executor, the only object of the powei being to establish a void trust with the proceeds of the sale, it is manifest that the power must be held to be void, and the estate to vest in the heirs at law of the testator absolutely.

But inasmuch as it is apparent that the testator intended to make a complete and perfect disposition of his entire estate, real and personal, and this intention is to be defeated by reason of his ignorance of the law, Mrs. Mosher ought not to be permitted to retain what she gets by the will and then share equally with the other children in the residue of the estate as heir at law. If she were to be allowed to take under the will and in hostility to it also, the intention of the testator not only as to the other children, but as to herself, would be entirely frustrated and-disappointed. She should therefore be put to her election whether she will take under the will, or as one of the heirs at law merely, according to the rules laid down by Nelson, chief justice, in Hawley v. James, (16 Wend. 142, 143.)

The two shares, from the proceeds of the personal estate, which were to be paid to the heirs of Rebecca Daniels, and Maria Nickerson, are valid bequests, if such heirs were living at the death of the testator; as in that event the shares were to be paid to them directly, and not to be held in trust. Otherwise, if no such heirs were then living and those shares went into the trust fund, they would follow the other five shares.

The other two shares, however, given to them, from the proceeds of the sale of the real estate, must necessarily fail with the failure of the power of sale, and these grandchildren" must take, if at all, as heirs at law of the testator.

There must therefore be a decree declaring all the, provisions of the will void except the devises and bequest to Rhua *158Mosher, the bequest to Samson Stacey, and the bequest of the two shares of the proceeds of the personal estate, to the heirs of Rebecca Daniels and Maria Nickerson, and compelling Mrs. Mosher to elect whether she will take under the provisions of the will and relinquish her claim as heir at law of the testator, or relinquish her rights under the will and take her share as heir merely, in the whole estate. Costs of both parties to be paid out of the estate.

[Monroe General Term,June 2, 1862.

Johnson, Welles and Campbell, Justices.]

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