Matter of Will of Butterfield

Pinch, J. It is not denied by the argument made on behalf of the appellant that the power of sale conferred upon the executrix suspends the absolute power of alienation beyond the permitted period. It is limited not, upon lives in being as the statute requires, but upon five minorities which may- *476 prevent a complete transfer for as many lives. No conveyance could give a perfect and absolute title while overshadowed by the trust power which might, at any time during the prescribed minorities, defeat the estate granted. The learned counsel for the appellant, while frankly admitting the difficulty, seeks to avoid it by insisting that the unlawful restriction may be cut off and disregarded, and the power in trust be allowed to stand free from the prohibition declared. It is quite true that cases occur in which that sort of judicial remedy is applied in order to save valid trusts from the peril of some unlawful incident or limitation, but the doctrine is only applicable where the vicious provision is clearly separable from the valid devise or trust, and may be disregarded without maiming the general frame of the will, or the testator’s substantial and dominant purpose. This is not such a case. The power is given explicitly upon condition, and only upon condition, that it shall not be exercised until the five minor children have all become of age; and the prohibition not only forms an'essential element of the power as given, but cannot be disregarded without also destroying the general scheme of the will and frustrating the testator’s principal purpose. What that was is very plain. He first gave to his wife ■one-tliird of all his real and personal estate, and then divided the residue among his eight children and one grandson, but specifically provided that their shares should be paid to them within one year after the youngest child should reach the age of twenty-one years. He named his wife and one son, Duane, .as executrix and executor, and then gave to the wife and mother, as executrix, a discretionary power of sale, but ■expressly directed that it should, not be exercised until the majority of the youngest child. His manifest purpose, and .almost the only one which made his will necessary, was to keep the real estate unsold and undivided so that it might serve as a home for his family until the last period of infancy had passed and the ultimate division was to occur. To strike from the power of sale the express restraint upon its exercise would materially change the character and purpose of the *477 power and imperil the vital intention underlying the will. We are not at liberty to go so far. Without, therefore, considering whether this trust power could or could not be exercised by an administrator with the will annexed, it is enough to say that the court will not appoint a new trustee in room of one deceased where it is plainly and clearly apparent that the trust or power in trust is void. The order of the General Term should be affirmed, with costs. All concur. Order affirmed.