Foote, J.:
We think the intent of testator, as expressed in the 6th and ^th clauses of his will, was to give his widow an estate for life in the residue of his real and personal property, with the right to use the principal of the personal property, if necessary, and at her death to give the use and income of what was left, the real'property being converted into personal property, one-third to each of his three children during life, with remainder to vest on the death of each in his or her surviving children, or, in the alternative, if any child should leave no surviving child, then a further life estate in the share of the one so dying is given to the survivors. The shares of the grandchildren are not to be paid to them until they become of full age; until then, they receive the income only. This, we think, does not prevent vesting the grandchildren’s shares on the death of their parents, or their absolute ownership at that time.
But for the provision for a further life estate in the surviving children of the testator, upon the death of one leaving no [849]*849surviving children, there would be no ground for the contention that there is an unlawful suspension of the power of alienation or of the absolute ownership of any share, for after the death of the widow the estate is, in legal effect, divided into three shares, and the ownership of each share is suspended only during two lives, namely, that of the widow and of the child who has the use and income of that share. Such was the construction placed upon a similar will in Monarque v. Monarque (80 N. Y. 320). By the 1st clause of his will Monarque gave to his wife the use of all his real and personal property during her life. By the 2d clause, after the death of his wife, he gave and bequeathed the income arising from his estate to his four daughters, to be divided between them share and share alike during their, and each of their, respective natural Uves, and remainder to their respective children and to their respective heirs and assigns forever. In the opinion of Andrews, J., giving construction to this will, it is said: “ There was no illegal suspension of the power of alienation of the property devised. The manifest design of the testator by the first and second clauses of the will was to give successive life estates in the property, first to his wife, and then to his daughters, remainder in fee to their children, and this is the construction of the language used. The gift of the income by the' second clause,- to his daughters for life, was equivalent to a dévise to them of a fife estate in the land. * * * But the devise to the daughters for life, although embraced in a single clause in which all are named, is by the well settled construction of similar clauses, a devise to each in severalty of a life estate in one-fourth part of the property. * * * The consequence is, that on the termination of the life estate of the widow, and the death of any daughter of the testator leaving children, the remainder in fee, as to the one-fourth part, would immediately vest in possession in such children. The absolute ownership or power of alienation of the estate is not, therefore, suspended beyond the period of two lives in being at the death of the testator.”
Hence, if the three children of the testator each dies leaving children, there can be no unlawful suspension. The provision [850]*850for a further life estate, causing a further suspension, in case one of testator’s children dies leaving no child, undoubtedly violates the statute against perpetuities and cannot be sustained, but that is a contingency which may never happen. Should it happen, its effect would be, not to destroy the 7th clause of the will as a whole, but only the limitation beyond the second life, as to which no valid remainder having been created by the will, there would be intestacy. We reach this conclusion upon the authority of Fowler v. Depau (26 Barb. 224); Schettler v. Smith (41 N. Y. 328); Matter of Wilcox (194 id. 288). The rule established by these cases, which we think controls the construction of this will, is thus succinctly stated in Chaplin on Suspension of the Power of Alienation (2d ed. § 430): “ Where the instrument provides for a future disposition of property, by making alternative hmitations, one or the other of which is to take effect according to the happening of specified alternative contingencies, the mere fact that the limitation over upon one contingency is invalid because it might involve undue suspension, or postponement of vesting, does not invalidate the other limitation which, if the contingency upon which it would become operative should occur, could not possibly occasion such undue suspension or postponement.”
This rule was applied by this court .construing the will in Matter of Wilcox (125 App. Div. 152). The Court of Appeals in reversing the decision of this court (194 N. Y. 288) recognized the authority of the rule in the construction of wills, but held that it did not apply in that case, for the reason that the Contingency, the happening of which was to determine which of the alternative provisions of the will should take effect, might not occur or happen within two lives in being.
The will in our case is not subject to this infirmity. The contingency which is to determine which of the alternative provisions for the remainder shall take effect, must happen at the end of the second life.
It follows that we cannot now say that there has been any unlawful suspension of the absolute ownership of any share in this estate by the 7th clause of the will. Plaintiff herself has living children, as has one of the other children of the testator. The other child is married and may have children. Should [851]*851any of plaintiff’s children survive her, they will, upon her death, become the owners of the share from which she is to receive the income. If any of them are then infants, their share will remain in the custody of the executor, but the title and ownership will be completely vested in such infant and alienable. The fact that testator’s son, William E. Pettit, now has no child and may leave none him surviving does not affect the validity of his life estate in his share. In further treating of alternative future dispositions, Chaplin (in § 432) says: “And in such cases'also, if the disposition of the precedent estate is so far separable as to be valid in any event, irrespective of which contingency may occur in future, then it may be sustained, and the determination of the validity of the future dispositions may be deferred, within the limits of the statutory period, until the events occur upon which the decision as to them must be based.”
The court, at Special Term, was of opinion that the 7th clause of this will was invalid under our statutes against perpetuities (Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], § 42; Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 11), but held the plaintiff estopped from maintaining this action on account of the family agreement to which she was a party for the probate of the will, and the settlement and discontinuance of the prior action which she had brought based on its invalidity, and dismissed the complaint on the ground that she had waived and surrendered her right to maintain this action.
We think there was no such estoppel or waiver as precluded plaintiff from maintaining this action.
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Foote, J.:
We think the intent of testator, as expressed in the 6th and ^th clauses of his will, was to give his widow an estate for life in the residue of his real and personal property, with the right to use the principal of the personal property, if necessary, and at her death to give the use and income of what was left, the real'property being converted into personal property, one-third to each of his three children during life, with remainder to vest on the death of each in his or her surviving children, or, in the alternative, if any child should leave no surviving child, then a further life estate in the share of the one so dying is given to the survivors. The shares of the grandchildren are not to be paid to them until they become of full age; until then, they receive the income only. This, we think, does not prevent vesting the grandchildren’s shares on the death of their parents, or their absolute ownership at that time.
But for the provision for a further life estate in the surviving children of the testator, upon the death of one leaving no [849]*849surviving children, there would be no ground for the contention that there is an unlawful suspension of the power of alienation or of the absolute ownership of any share, for after the death of the widow the estate is, in legal effect, divided into three shares, and the ownership of each share is suspended only during two lives, namely, that of the widow and of the child who has the use and income of that share. Such was the construction placed upon a similar will in Monarque v. Monarque (80 N. Y. 320). By the 1st clause of his will Monarque gave to his wife the use of all his real and personal property during her life. By the 2d clause, after the death of his wife, he gave and bequeathed the income arising from his estate to his four daughters, to be divided between them share and share alike during their, and each of their, respective natural Uves, and remainder to their respective children and to their respective heirs and assigns forever. In the opinion of Andrews, J., giving construction to this will, it is said: “ There was no illegal suspension of the power of alienation of the property devised. The manifest design of the testator by the first and second clauses of the will was to give successive life estates in the property, first to his wife, and then to his daughters, remainder in fee to their children, and this is the construction of the language used. The gift of the income by the' second clause,- to his daughters for life, was equivalent to a dévise to them of a fife estate in the land. * * * But the devise to the daughters for life, although embraced in a single clause in which all are named, is by the well settled construction of similar clauses, a devise to each in severalty of a life estate in one-fourth part of the property. * * * The consequence is, that on the termination of the life estate of the widow, and the death of any daughter of the testator leaving children, the remainder in fee, as to the one-fourth part, would immediately vest in possession in such children. The absolute ownership or power of alienation of the estate is not, therefore, suspended beyond the period of two lives in being at the death of the testator.”
Hence, if the three children of the testator each dies leaving children, there can be no unlawful suspension. The provision [850]*850for a further life estate, causing a further suspension, in case one of testator’s children dies leaving no child, undoubtedly violates the statute against perpetuities and cannot be sustained, but that is a contingency which may never happen. Should it happen, its effect would be, not to destroy the 7th clause of the will as a whole, but only the limitation beyond the second life, as to which no valid remainder having been created by the will, there would be intestacy. We reach this conclusion upon the authority of Fowler v. Depau (26 Barb. 224); Schettler v. Smith (41 N. Y. 328); Matter of Wilcox (194 id. 288). The rule established by these cases, which we think controls the construction of this will, is thus succinctly stated in Chaplin on Suspension of the Power of Alienation (2d ed. § 430): “ Where the instrument provides for a future disposition of property, by making alternative hmitations, one or the other of which is to take effect according to the happening of specified alternative contingencies, the mere fact that the limitation over upon one contingency is invalid because it might involve undue suspension, or postponement of vesting, does not invalidate the other limitation which, if the contingency upon which it would become operative should occur, could not possibly occasion such undue suspension or postponement.”
This rule was applied by this court .construing the will in Matter of Wilcox (125 App. Div. 152). The Court of Appeals in reversing the decision of this court (194 N. Y. 288) recognized the authority of the rule in the construction of wills, but held that it did not apply in that case, for the reason that the Contingency, the happening of which was to determine which of the alternative provisions of the will should take effect, might not occur or happen within two lives in being.
The will in our case is not subject to this infirmity. The contingency which is to determine which of the alternative provisions for the remainder shall take effect, must happen at the end of the second life.
It follows that we cannot now say that there has been any unlawful suspension of the absolute ownership of any share in this estate by the 7th clause of the will. Plaintiff herself has living children, as has one of the other children of the testator. The other child is married and may have children. Should [851]*851any of plaintiff’s children survive her, they will, upon her death, become the owners of the share from which she is to receive the income. If any of them are then infants, their share will remain in the custody of the executor, but the title and ownership will be completely vested in such infant and alienable. The fact that testator’s son, William E. Pettit, now has no child and may leave none him surviving does not affect the validity of his life estate in his share. In further treating of alternative future dispositions, Chaplin (in § 432) says: “And in such cases'also, if the disposition of the precedent estate is so far separable as to be valid in any event, irrespective of which contingency may occur in future, then it may be sustained, and the determination of the validity of the future dispositions may be deferred, within the limits of the statutory period, until the events occur upon which the decision as to them must be based.”
The court, at Special Term, was of opinion that the 7th clause of this will was invalid under our statutes against perpetuities (Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], § 42; Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 11), but held the plaintiff estopped from maintaining this action on account of the family agreement to which she was a party for the probate of the will, and the settlement and discontinuance of the prior action which she had brought based on its invalidity, and dismissed the complaint on the ground that she had waived and surrendered her right to maintain this action.
We think there was no such estoppel or waiver as precluded plaintiff from maintaining this action. Neither the executor nor the infant, who alone are defending this case, were parties to such family agreement or bound by its terms; nor had they at the time this action was begun acted upon the agreement to then* prejudice. As the agreement was not binding upon them it is not available to them as a basis for estoppel. The parties to the agreement and their privies alone can enforce it. Nor is the plaintiff precluded by the decree of the surrogate admitting the will to probate, from maintaining an action for its judicial construction. This decree has the effect only prescribed by section 2625 of the Code of Civil Procedure. It is conclusive as an [852]*852adjudication of the validity of the will, but not as to its • construction, except in cases where a party, expressly puts in issue the construction or effect of any disposition of property contained in the will as prescribed by section 2621 of the Code, and the surrogate actually determines such questions. Moreover, if the 7th clause of this will could not be sustained because containing an unlawful restraint upon alienation, it could not be validated by agreement of the parties. The statute can no more be violated by agreement of the parties than by will.' It represents the public policy of the State, and is not such a statute as may be waived by interested parties on the theory that it was made for their benefit.
We conclude that this court should, as required by section 993 of the Code, grant such judgment as the facts warrant, without awarding a new trial. The judgment appealed from should, therefore, be modified- by striking out all that part which dismisses the complaint Upon the merits, and by adding appropriate provisions to give construction to the will in accordance with this" opinion, with separate bills of costs of this appeal to the defendant Wilson as executor, and to Brong as guardian ad litem, payable by the executor out of the estate.
All concurred, except Kruse, J., who dissented and voted for affirmance, and Robson, J., who dissented and voted, for reversal.
Judgment modified by striking out all that part which dis- ' misses the complaint upon the merits, and by adding appropriate provisions to give construction to the will in accordance with the opinion, with separate bills of costs on this appeal to the defendant Wilson as executor, and to Brong as guardian ad litem, payable by the executor out of the estate.