The question arises here, what property did the testatrix, Elizabeth Thomas, devise and bequeath by her will, since it is for this that her executor must account?
The first husband of the testatrix was Benjamin W. Bedell. All the property Mrs. Thomas had came from him. His will was as follows:
I, Benjamin W. Bedell, of the city of Brooklyn, in the county of Kings, and State of Hew York, do make and ordain this, my last will and testament, as follows:
First. All my debts and funeral expenses to be paid out of my personal estate if the same shall prove sufficient.
Second. I give, devise and bequeath all the residue and remainder of my real and personal estate, after my debts are paid, to my beloved wife, Elizabeth, and my beloved children, Virginia, Georgiana, and Le Boy, as follows: The said property to be kept entire in the family *368till my youngest child, Le Roy, arrives of age; or, if he should decease, till either of the others arrive of the age of twenty-one, or all should be deceased; that in the mean time my wife shall have the use of the one-third part and of one thousand dollars in addition thereto; and the said children shall each have the use of an equal share of the remainder; and upon their arrival of age or decease, as aforesaid, my said wife shall then take her one-third, with the addition of one thousand dollars, and my said children each-one third of the balance remaining to them, their heirs and assigns forever.
' In case either of my children shall die unmarried, and without children, before the age of twenty-one, his or her share shall be divided among or go to the remaining child or children ; or, in case of marriage, to the child or children of such marriage. In case of the decease of all my children before the decease of my wife, it is my desire that my said wife shall have the one-half of all my estate so devised and bequeathed to all or either of them which shall not vest as aforesaid. I also give to my executors and executrix, hereinafter named, full power and authority to sell any and all of my real estate, and to execute propel1 conveyances therefor; and in case of the decease of one of them, the survivor shall have such power; and to use the funds arising therefrom, if necessary, in payment of any debts for’ which my personal estate shall not be sufficient; and to' invest the balance in safe securities for the uses and purposes above mentioned.
I hereby constitute and appoint my beloved wife, Elizabeth, and my brother, Elisha Bedell, executrix and executor of this, my last will and testament, hereby revoking any and all other wills by me heretofore made.
In testimony whereof, I have hereunto set my hand, this third day of Hay, one thousand eight hundred and forty-five. J
J Me v Benjamin W. M Bedell. * mark.
*369Subscribed, published, acknowledged and declared by the said testator to be his last will and testament, in the presence of us, who, at his request, in his presence and the presence of each other, have hereunto signed our names as subscribing witnesses.
Auden J. Spoonek, Gothic Cottage, Brooklyn.
Phebe Stmmqnbqn,
113 Sands street, Brooklyn.
This devise is in such terms that it is impossible to divorce or separate the devise from the limitation. The limitation if excessive must fall, and carry the whole devise with it.
The income of the estate, during the term, is given to the wife and children. The term is to last until Le Boy attains majority, or in case of his death, until either of the others arrives at majority. Upon their arrival at age, or decease, the widow is to take one-third, and the children the remaining two-thirds.
All the children were minors. The term of suspension of the estate must last, 1st, until it is ascertained whether Le Boy arrives at majority. That is one life. 2dly. If the next youngest should live to attain the age of twenty-one, that would end the suspension, but if she should die before twenty-one, and the sole surviving child should live to attain twenty-one, it is obvious that the trust has been made dependent upon three minorities or three lives.
The vicious element in the devise that produces this result consists in hanging the term, after Le Boy’s decease, upon the niajority of either of the others, so that the term must last until it is ascertained that neither of the two could attain twenty-one; an event dependent upon the lives of both. (Hawley v. James, 16 Wendell's R., 61.)
Every limitation on a minority is a limitation on life. We cannot limit on a fixed term of years, or days, under *370our statute. But we may select a life, or any period within a designated life. And so an estate may be limited on two minorities. A minority cannot exceed a life, and it may be less.
• But an estate limited on three minorities is limited on three lives, and is void, and falls, carrying with it all subsequent and dependent limitations.
There is a power of sale, in this will, in the executors; but this does not affect this question. The exercise of the power would merely change the form of the property. The proceeds were still to have been held suspended.
The devise in Bedell’s will being thus void for suspension of the power of alienation, he died intestate as to his whole real and personal estate. His widow, afterwards Mrs. Thomas, the present testatrix, took her dower in his real estate, and was entitled to one-third of his personal property. This is the “real and personal estate,” if traceable, which she must be held to have devised and bequeathed by her will, which reads as follows.:
In the name of God: Amen. I, Elizabeth Thomas, of the city, county and State of Hew York, being in sound mind, do hereby declare this my last will and testament for -the distribution of my property as follows: 1st, I give and - bequeath to my son, Balpli Thomas, the equal one-third part of - all my real and personal estate for his use and benefit forever, and hereby appoint Virginia Bedell his guardian. 2d, I give and bequeath to my daughters, Virginia, Georgiana, and my son, Le Boy, the remaining two-thirds of all my real and personal estate to be equally divided among them, and appoint'Virginia Bedell jointly with J. C. Havens guardians for my daughter, Georgiana, and son, Le Boy. 3d, I hereby-order, in the event of my said son, Balph Thomas, dying before arriving at the age of twenty-one years, that his portion of the property, aforesaid willed to.' him shall be equally divided among my children, Virginia, Georgiana and Le Boy, for their use *371and benefit forever. 4th, I hereby order that in the event of the death of my daughter, Georgiana, or son, Le Roy, before arriving of age, that their portion of the estate be equally divided among the remaining children. 5th, I hereby order that in the event of my daughter, Virginia Bedell, being disqualified to act as guardian, that William Van Marne, Esq., be appointed in her stead. 6th, I hereby order that the portion of my estate willed to my son, Ralph Thomas, be appropriated in educating, clothing and boarding my said son, Ralph Thomas, until he attains the age of twenty-one years. 7th, I hereby appoint William Van Marne and J. C. Havens, executors by this my last will and testament, and by this revoke all former wills and codicils. her
Elizabeth M Thomas. mark.
Signed and executed in the presence of the testatrix, at her request, and in the presence of each other, this twenty-seventh day of July, I860.
Daniel D. Tompkins,
61 West 26 th street, H. Y.
C. A. Main,
184 West 30th street, M. Y.
Rosalie Wetmoke,
Port Richmond, Staten Island.
her Annette H Burns, 35th street.' mark.
Witness to signature of Annette Burns.
An administrator should be appointed to take charge of and distribute Bedell’s personal property. His three children, Virginia, Georgiana and Le Roy, are entitled to two-thirds of the personalty. The real estate of Bedell descended to them and is now freed of their mother’s dower. Hone of this was affected by the will of Mrs, Thomas, or passes under it.