trustees. The law does not give his children what he gave his grandchildren, nor give his grandchildren what he gave his children. At some time the grandchildren will have their remainder. If his appointment of the time when it is to pass to them from the trustees were a mere nullity, the consequence would be, not that substantially the whole will would be unnecessarily broken, but that the remainder would pass at the termination of the life interests of C. and H. Beyond that time, the validity of the trust depends upon the question whether on this point the will is a mere nullity, or whether the testator's intent that the remainder shall pass at a period more distant than the law allows is carried into effect as nearly as it can be; that is, at the most remote legal time. In Hum. berston v. Humberston (1716) 1 P. Wms. 332, a testator "devised his estate ... to the Drapers Company and their successors in trust, to convey the premises to his godson Matthew Humberston for life, and afterwards, upon the death of the said Matthew, to his first son for life, and so to the first son of that first son for life, etc., and, if no issue male of the first son, the to the second son of the said Matthew Humberston for life, and so to his first son, etc., and, in failure of such issue of Matthew, then to another Matthew Humberston for life, and to his first son for life, etc., with remainders over to very many of the Humberstons (I think about fifty) for their lives successively, and their respective sons, when born, for their lives, without giving an estate in tail to any of them, or making any disposition of the fee. 547, 548. "It is difficult to discover any principle which forbids the sustaining of the general intent of the testator by cutting off a void trust which is separable from other valid trusts, in a case where the trust which is defeated is independent of the other dispositions of the will, and subordinate to them, and is not an essential part of the general scheme." Manice v. Manice, 43 N. Y. 303, 384. This is "merely a statement in another form of the general proposition that valid and void trusts, when independent of each other, may be separated, and the one rejected and the other sustained." Van Schuyver v. Mulford, 59 N. Y. 426, 432. "When several trusts are created, and they are independent of each other, each trust complete in itself, and the legal can be separated from the illegal, and upheld, without doing injustice, or defeating what the testator might in the emergency be presumed to wish, the illegal trust may be cut off, and the legal permitted to stand, and thus the intention of the testator be effectuated so far as the law will permit. Kennedy v. Hoy, 105 N. Y. 134, 137, 138; Underwood v. Curtis, 127 N. Y. 523, 541, 542. "Courts should endeavor, by every resonable intendment aud by a liberal construction, to sustain a testamentary disposition of property, when, in so doing, they can give actual and just effect to the testator's purpose, and validate at least the main, if not the true, part of a testamentary scheme, which contemplates distinct and severable acts. Henderson v. Henderson, 113 N. Y. 1, 16. "The endeavor is to find a way of up holding the will, not of breaking it down." Greene v. Greene, 125 N. Y. 506. 512. "It By Lord Chancellor [Cowper]: is now considered to be the settled rule of Though an attempt to make a perpetuity for law in New York that the will of a testator successive lives be vain, yet, so far as is conis to be carried into effect so far as that insistent with the rules of law, it ought to be tention is consistent with the rules of law; that although some of the objects for which a trust is created, or some future interests limited upon a trust estate, are illegal and void, yet, if any of the purposes of the trust are valid, the legal title vests in the trustees during the continuance of such valid objects of the trust, provided the legal be not so mixed up with the illegal objects of the trust that one cannot be sustained without giving effect to the other." 4 Kent, Com. 281, note a. . complied with, and therefore let all the sons Withholding the remainder from Barker's grandchildren beyond a reasonable time was not the sole or the main purpose for which he devised nearly all his estate to trustees; and his inability to postpone the grandchildren's title unreasonably does not invalidate the trustees' title, nor prevent their doing by direct devise to themselves." Mortimer the lawful fiduciary work which he ordered v. West, 2 Sim. 274, 282. The case of them to do. The general devise in trust Humberston v. Humberston has usvests the legal estate in them for such legal ually been considered as a leading authority purposes as require their services. It is a for the doctrine" of cy près. "The trust, good devise for the valid uses (including the however, being executory, the court was interests, absolute and conditional, of C. and authorized to mold the limitations so as to H.) for which the trustees are directed to bring them within the established limits, inhold the property during the lives of C. and dependently of the doctrine in question." H. Greene v. Greene, 125 N. Y. 506, 510.1 Jarman, Wills, 4th ed. 298, note i. When During their lives the trust will not infringe the construction is cy près, nothing is gained any rule of law. During the intended con by giving it some other name. "In Parfitt tinuance of the trust the testator meant the v. Hember, L. R. 4 Eq. 443, where it was remainder should vest in no one but the considered that the testator had intended to place. create a series of life estates in perpetuity, | but his intention also clearly was that all . The court must put themselves in the place of the testator, and determine as he would have done if he had been told that both of his intentions could not take place, and had been asked which of them he desired should take effect. If we balance the two intentions, the weightiest is that all the sons of George Grew should take in succession; and therefore George Grew must be adjudged to have been tenant in tail, for the testator's great intention most clearly was that the lands should never go over to the plaintiff but upon a failure of issue of George Grew." "The great intention," says Clive, J., "is to give in succession to all the sons of George Grew, which cannot be without construing it an estate tail in him.” "Where there appear a particular intent and a gen eral intent, the general must take place.' Bathurst, J., in the same case. "The most striking illustration of the anxiety of the courts to prevent the total disappointment of the testator's inten tion by the operation of the rule against per petuities is afforded by the doctrine of cy près or approximation, as it is called. This doctrine applies where lands are limited to an unborn person for life, with remainder to his first and other sons successively in tail, in which case, as such limitations are clearly incapable of taking effect in the manner intended, the doctrine in question gives to the parent the estate tail that was designed for the issue, which estate tail (un- The doctrine of cy près goes on the prin less barred by the parent or his issue, being ciple "that where there is a general and a tenant in tail for the time being) will com particular intent, and the particular one prise, in its devolution by descent, all the cannot take effect, the words shall be so conpersons intended to have been made tenants strued as to give effect to the general intent." in tail by purchase. The intention that the Robinson v. Hardcastle (1788) 2 T. R. 241, testator's bounty shall flow to the issue is 254. "It has been the settled doctrine of considered as the main and paramount de- Westminster Hall for the last thirty or forty sign, to which the mere mode of their tak-years that there may be a general and a par. ing is subordinate, and the latter is there-ticular intent in a will, and that the latter fore sacrificed." 1 Jarman, Wills, 260, 261. must give way when the former cannot other"Where a testator has two objects, -one wise be carried into effect. Nothprimary or general, and the other secondary ing could be more positive than the words or particular,-which are incompatible, the of the will in" Robinson v. Robinson "to show particular intention must be sacrificed, in a particular intent that the first taker should order that, as far as possible, effect may be take an estate for his life, and no longer. given to the general one. Lewis, Perpe- But there was a general intent apparent, tuities, 426. In Robinson v. Robinson (1756) which could not be effected but by giving 1 Burr. 38, 50-52, it was held "that, upon him an estate tail, and on that the decision the true construction of the said will, was founded." Doe v. Cooper (1801) 1 East, the said Lancelot Hicks must, by necessary 229, 234. “A particular intent expressed in implication, to effectuate the manifest gen- a will must give way to a general intent. eral intent of the said testator, be construed It is not to be inferred that, because to take an estate in tail male, not- the heirs of the body cannot take in the parwithstanding the express estate devised to ticular mode prescribed by the testator, he the said Lancelot Hicks, for his life and intended that they should not take at all." no longer.'" In Dodson v. Grew (1767) 2 Doe v. Harvey (1825) 4 Barn. & C. 610, 620. Wils. 322, the will was: "I give, devise, "There is certainly no express gift to" the and bequeath unto my nephew George Grew sons of P. M. "as tenants in tail; but it is all my lands for and during the contended that, in order to effectuate the testerm of his natural life, and, from and after tator's general or leading intention, they his decease, to the use of the issue male of must be held so to take, according to what his body lawfully to be begotten, and the has been called the doctrine of approximaheirs male of the body of such issue male; tion or cy près. .. The doctrine of cy and, for want of such issue male, then I give près, in reference to questions of perpetuity, all and every the aforesaid premises unto my arises where a testator gives real estate to an Dephew George Dodson, his heirs and as unborn person for life, with remainder to the signs, forever." George Dodson was the first and other sons of such person in tail plaintiff. George Grew entered, and suf- male, or with remainder to the first and other fered a common recovery, and died without sons of such person in tail general, with reissue male. It was held that he took an es- mainder to the daughters as tenants in comtate tail, and consequently the plaintiff was mon in tail, with cross-remainders amongst barred by the recovery. "The statute of them. In such a case, the course of succeswills," says Wilmot, Ch. J., "gives a mansion designated by the testator is one alpower to devise his lands, but he cannot by his will create a perpetuity, nor restrain tenant in tail from suffering a recovery. The intention of the testator clearly was to give George Grew an estate for life only, lowed by law, but the direction that the first taker should take for life only, with remainder to his children as purchasers, is illegal, as tending to a perpetuity. In such cases the law, in order to prevent the testa is clearly nearer to the intention of the tes- . tor's intention from being entirely defeated, | correspond with his views than an estate in has treated his expressed intention as divisi- fee simple. An estate in tail male ble into two parts: First, the intention that the first taker and his issue male or issue general, as the case may be, shall all take in succession, according to the legal course of descent; and, secondly, the intention that the first taker shall take an estate for life only, and that his children shall take as purchasers. And, the two intentions being thus ascertained, the courts have treated them as independent of each other, and have said that the inability to carry into effect the second or subordinate intention shall not defeat the primary or general intention; and such a devise has therefore been held to give an estate in tail male or in tail, as the case may be, to the first taker. By these means, the estate will go in the precise course marked out by the testator, though it will be (contrary to what he intended) liable to be divested from that course by the act of the first taker. The doctrine has been long recognized, and we should be unsettling landmarks if we were to call it in question. The doctrine is nowhere more clearly stated than in a note of the late Mr. Butler, at the end of Fearne's chapter on the rule in Shelley's Case [1 Coke, 88]. Fearne, Remainders, 204. 'The courts have considered that the testator's primary object was that the issue of the devisee should take the land, and that the mode in which the issue should take it was the testator's secondary object, or, as it has been usually expressed, that the former was his general, the latter his particular, intention. Then, in conformity to their uniform practice of effecting the testator's intention as far as possible, they have thought themselves required to adopt that construction of the devise which, by including the devisee, satisfied the testator's general intention that the issue should take, but which, at the same time, by raising in the issue estates different from those which the testatorlar appeared to have intended them, sacrificed to that extent his particular intention.' Monypenny v. Dering (1847) 16 Mees. & W. 418, 428, 429. "That an estate for life in the plaintiff, according to the particular intent of the testator, contravenes no rule of law, is indisputable. This construction, however, would defeat the testator's general intent, which was to create an interminable succession of estates in the premises. To effectuate, therefore, the general intent of the testator, it is necessary to vest in the plaintiff a fee tail." Allyn v. Mather (1832) 9 Conn. 114, 127. If the intention cannot be carried into full effect, it is to be carried as nearly into effect as the law will permit. What the real intention of the present testator was with respect to the property in ques-effect. tion appears to be clear. He wished his son to enjoy it during his life, and his grandson during his life, and so on forever. But this intention contravenes a legal principle, and cannot be carried into full effect. intent by giving to his issue estates different from those intended by the testator. By raising the estate tail in S., we should defeat the general intent of the testator, to wit, that of continuing the estate in his descendants as long as the rules of law will permit. If the will gave S. an estate tail, our statute converted it into an estate in fee simple; but, if S. took only an estate for life, then the perpetuity is carried one degree further in the family of the testator. law will permit that to be done, then it is the duty of the court to do it, as more nearly effecting the intention of the testator. The testator intended that the lessor [the oldest son of S.] should take as purchaser, and not as heir. This intention is consistent with the rules of law, and should be carried into If the It was also the testator's intention that the lessor should take an estate for life only. That intention is contrary to the rules of law, as tending to a perpetuity. That intention the court cannot effectuate. But, to effectuate the general intent as far as posAs, then, the intention of the testator cannot sible, the lessor must take an estate of inbe completely effectuated, it becomes neces-heritance, - -a fee simple." "When the parsary to consider what estate allowed by law will be nearest to that which he intended; and it is clear that an estate tail will better ticular intent cannot be executed, the general intent must direct the construction." Hailey v. Northampton (1811) 8 Mass. 3, 37, 5 Am. Dec. 66. "The general intention is to con- As a description of the operation of the trol any particular intention. Ut rule in Shelley's Case, the doctrine of general res magis valeat quam pereat. Malcolm intent is immaterial. A devise or bequest v. Malcolm (1849) 3 Cush. 472, 477-479. to A. for life, and to his heirs, shows an "Where the general intent of the testator is intent, not that A's life estate shall be enclear, and it is impracticable to give effect larged by the gift to his heirs, but that A. to all the language of the instrument express shall have a life estate, and his heirs the ive of some particular or special intent, the remainder. The principle of our common latter must yield to the former. law that finds the intent in competent eviThis rule is now clearly established, both dence, and not in rules of construction, upin the English and American courts. Redf. holds the intent, notwithstanding the rule Wills, 432, 433. "The doctrine that the gen- in Shelley's Case. Sanborn v. Sanborn, 62 eral intent must overrule the particular in- N. H. 631. If the operation of that rule tent has been much, and we conceive justly, had not been prohibited by statute, it would objected to of late, as being, as a general not defeat the intention that a remainder proposition, incorrect and vague, and likely should go to the heirs of a tenant for life. to lead in its application to erroneous re- So far as the doctrine of general intent is a sults. In its origin, it was merely rule of approximation that makes the least descriptive of the operation of the rule in sacrifice of a testator's declared intention Shelley's Case; and it has since been laid concerning realty or personalty (or a mixed down in others, where technical words of fund of realty and personalty), rejecting no limitation have been used, and other words more of his will than the law makes it necshowing the intention of the testator that the essary to reject, and preferring "the greater objects of his bounty should take in a differ- part" and the "weightiest" intent when the ent way from that which the law allows have greater and the less cannot both be carried been rejected; but in the latter cases the into effect, it is as applicable in this and more correct mode of stating the rule of con- other cases as in those in which it has been struction is that technical words, or words applied. of known legal import, must have their legal By this curative process, a line of partieffect, even though the testator uses incon- tion is drawn through a gift to a polygamous sistent words, unless those inconsistent words church. The donor's intent is executed so are of such a nature as to make it perfectly far as it is legal, and the whole gift is supclear that the testator did not mean to use ported and applied to lawful uses. Church the technical words in their proper sense. of Jesus Christ of Latter-Day Saints v. United This doctrine of general and partic- States, 136 U. S. 1, 50, 55, 56, 34 L. ed. 478, ular intent ought to be carried no further 493, 495. By the same process, a devisee's than this; and, thus explained, it should life estate is made an estate tail, and the be applied to this and all other wills. An- time appointed by the testator for the vestother undoubted rule of construction is that ing of title is changed, and brought within every part of that which the testator meant the period prescribed by law. Gray, Perby the words he has used should be carried petuities, SS 643-670. A charity being a into effect as far as the law will permit, trust in the support and execution of which but no further; and that no part should be the whole public is concerned, and which rejected, except what the law makes it neces- is therefore allowed by the law to be perpetsary to reject. This construction ual, deserves and often requires the exercise makes the least sacrifice of the testator's de- of a larger discretion by the court of chanclared intention. It preserves estates to all cery than a mere private trust; for without his grandchildren.. It is true that a large discretionary power, in carrying out these grandchildren cannot take estates for the general intent of the donor, to vary the life, as the testator intended, for the rule in details of administration, and even the mode Shelley's Case prevents it, nor the children of of application, many charities would fail." those children estates for life, for Jackson v. Phillips, 14 Allen, 539, 580. Disthe rule of law against perpetuities prevents cretionary power is exercised by weighing that; but this is unavoidable, and no con- evidence on a question of fact. Bundy v. struction can carry into effect all the testator Hyde, 50 N. H. 120; Darling v. Westmorewished. Murthwaite v. Jenkinson, land, 52 N. H. 408, 13 Am. Rep. 55; Boody 2 Barn. & C. 357, is an example v. Watson, 64 N. H. 186; Eckstein v. Downof the proper construction of the word 'ising, 64 N. H. 259; 66 N. sue, which was considered as a word of lim- H. 153. As a devise to members of the tesitation, embracing all the descendants, and tator's family is more specific than an orin which the inconsistent intent that all those dinary public charity, it may carry less descendants should take for life formed no latitude of approximation; but authorities reason why they should not take at all. before cited show that the margin is not narThinking therefore that this mode row in all cases of private use. Barker did of construing the will gives effect to the not intend that his gift to his grandchildren greater part of it, and, as far as the rules of should fail by being excepted from the law will permit, the whole, whilst that con- method of construction that would save a tended for on the part of the plaintiff strikes bequest to the Mormon Church. The apout altogether the devise to the grandchil-proximation intended by testators is not limdren, our opinion is that the former ought ited to charitable uses and cases in which to be preferred." Doe v. Gallini (1833) 5 the time of vesting is changed by converting Barn. & Ad. 621, 640-645; 2 Jarman, Wills, life estates into estates tail. Prohibiting a 484-489. change of the time without such an altera V. tion of a devised estate would be arbitrary | The nature of the case is evidence of his inlegislation. The time is changed by an in- tent that there shall be no useless mutilatended approximation because the testator's tion, but that, when enough of his plan is disposition of his property is not invalidated annulled to conform it to the law, it shall be beyond the bounds of necessity. The con- left as nearly whole as consistency and reastruction is cy près because it is an ascertain- son will permit. The same evidence shows ment of his intent. Perry, Tr. §§ 723-729; his meaning to be that if all his arrangeAdams Female Academy v. Adams, 65 N. H. ments, general and particular, primary and 225, 226, 6 L. R. A. 785; Arnold ́v. Congreve, secondary, cannot be carried into effect, "the 1 Russ. & M. 209, 215. If the whole of inability to carry into effect the secondary Barker's property had been New Hampshire or subordinate intention shall not defeat the land, and his will had been in the form of primary or general intention." If any of his a devise of the whole in tail to his grand- orders cannot be executed in the designated children living at his death, he would not time or manner, or to the designated extent, have been intestate. His general and pri- he means that the execution shall be approxmary intent would have been that they should imate (as nearly as possible according to inhave the property; and, as they could not structions) in time, manner, and extent. A take an estate tail, they would have a fee bequest of $100, to be paid at the end of six simple. Jackson v. Brown, 13 Wend. 437; years, does not mean that the legatee shall 66 N. H. 469. It has been said that "the have nothing in case there is less than $100 doctrine of cy près goes to the utmost verge for him, or in case the executor has no means of the law, to the outside of the of payment before the end of twelve years, rules of construction" (1 East, 451), and that or in case he has means of payment at the "it is not proper to go one step further." 7 end of five years, and the law requires all Ves. Jr. 390, and authorities cited in Gray, legacies to be then paid notwithstanding the Perpetuities, §§ 645, 651. In changing the testator's appointment of a more remote time. character of devised estates for the purpose With other evidence, a mere devise of a farm of changing the time of vesting, the authori-accompanied by a suspension of the title in ties have gone further than there is occasion trust for a time, does not indicate a purpose to go in this case. "Such a construction is that the devisee is not to have the farm if the to be adopted as will make the devise effect-specified time is a day, a year, or twenty ual; and, if it cannot be so to the full ex-years longer than the legal period, and if no tent, then so far as it lawfully can." Den- wrong would be done by an approximation. nett v. Dennett, 40 N. H. 498, 500. "The Within the legal limit, the testator's power method of the courts is not to set aside the of suspending the title is not affected by the intent because it cannot take effect so fully disability under which he labors beyond that as the testator desired, but to let it work as limit. The devise is effective cy près, in far as it can. The very being of pursuance of his implied intent to divide acexecutory devises shows a strong inclination, cording to common reason,-throw out what both in the courts of law and equity, to sup- is against law, and let the rest stand. port the testator's intent as far as possible." legal intent, correctly inferred as a fact, is Talbot, Ld. Ch., in Hopkins v. Hopkins a part of the will, not less operative or less (1734) Forrester (Cas. t. Talb.) 44, 50. important than it would be if set forth in The common law doth divide according to express terms in the writing. A refusal to common reason, and, having made that void execute it would be an alteration of the will, that is against law, lets the rest stand." and a violation of common law principle and Norton v. Simmes, Hob. 12, c. 14; 4 Kent, statutory right. Com. 281, note a. "It is difficult at times to determine whether in the case of an executory devise to a class, when some cannot take because too remote, the whole devise is void as against perpetuity, or only that part which offends. The determination of the question depends upon the ability to separate the good from the bad, and at the same time preserve the intention of the testator." Tiedeman, Real Prop. § 544. This test is as applicable to other questions of approximation as to the divisibility of a class of devisees. This The legality of Barker's small bequests is not disputed. The will is not wholly void, but is admitted to be good in part, and to be divisible. The question is not whether it shall be divided, but where the line of division shall be drawn. In the devise of the remainder to the grandchildren, the last nineteen of the forty years are too remote. In the rest of the time and the rest of the will there is no illegality. The invalidity arising from remoteness would be unnecessarily and unreasonably extended by throwing out twenty-one years that are not too remote. A division of a defective will is the exe- The intestacy asserted by H. would be a more cution of the testator's intent, inferred as a inordinate expansion of the limited defect. fact from competent evidence. When a con- "When a man sits down to dispose of his trary design does not appear, he intends that property by will, it is fair to presume that separable parts shall be separated if one is he does not intend to die intestate, nor to illegal or otherwise incapable of execution. become intestate after death." Weatherhead He could not desire that the whole should v. Stoddard, 58 Vt. 623, 629; Kennard v. be unnecessarily and unreasonably set aside; Kennard, 63 N. H. 311; Hoitt v. Hoitt, Id. that an effort should be made to save as little 499, 56 Am. Rep. 530. "Where the will adas possible, or that the dividing line should mits of two constructions, that is to be prebe drawn at random. A total or dispropor- ferred which will render it valid. tionate destruction of the will is not one of Of two modes of construction, that is to be the objects he had in view in making it. I preferred which will prevent a total intes |