Margaretha Thomagel filed her petition on December 23,1902, alleging that John Pforr, her brother, died in San Francisco on July 17, 1902, being a resident thereof and leaving a will dated January 27, 1902, which was admitted to probate on August 20, 1902; that Anna Pforr and Max Waizman were duly appointed executrix and executor of said will and qualified as such and received letters testamentary thereon, and have continued to act thereunder ever since and are now so acting.

The will is in words and figures as follows:

The petition further recites that all of the legatees and devisees mentioned in said last will and testament were at the time of the execution of said last will and testament and at the time of the death of said deceased over the age of majority, and none of them were, nor was either of them, at either of said times, minors or a minor; that she is advised and believes, and therefore alleges, that the trust or disposition attempted to be created or made by said portion of said last will and testament was, and is, void in its inception, and that all of the property therein mentioned, at the death of said John Pforr, deceased, passed to and vested in his heirs at law; and that she is advised and believes, and therefore alleges, that she is entitled to have distributed to her, as a sister and heir at law of said deceased, an undivided and one-fifth part of the real estate described in the inventory on file herein, and belonging to the estate of said deceased, and she is also advised and believes, and therefore alleges, that she is entitled to have distributed to her one-fifth part of all of the personal property belonging to the estate of said deceased, now in the hands of the executrix and executor, save and except the household furniture, books and pictures mentioned in said clause or portion of said last will; that the estate of said John Pforr is not indebted in any further or greater sum than twenty-five thousand dollars ($25,000), and that the whole of said indebtedness is secured by mortgages upon said real property; and the aforesaid portion of said property may be allotted and distributed to her without loss to the creditors of said estate, or *461 any of them, and she is ready and willing and hereby offers to execute and deliver to the executrix and executor a bond in such sum as shall be desired by the court, with sureties to be approved by the judge thereof, payable to the executrix and executor, and conditioned for the payment, wherever requested, of her proportion of the debts due from said estate, not exceeding the value or account of the portion of said estate which may be distributed to her, or to which she may be entitled.

The executrix and executor respond to this petition in its essential averments by alleging that said estate is largely indebted, and that the encumbrances thereon and there against amount to approximately twenty per cent of the value thereof; that they consist of unsecured claims and promissory notes, and of promissory notes secured by mortgages upon the real property of said estate; that the said last will and testament of John Pforr, deceased, does not attempt to create a trust as to the'whole or any portion of the property belonging to said decedent, but that the provision for the suspension of the distribution thereof for a term of two years is valid and not repugnant to the laws of the state of California; that at the death of said John Pforr, deceased, all of his property passed to and vested in the devisees of his will in accordance with the provisions thereof; that in accordance with the provisions of said will Margaretha Thornagel, the petitioner, is entitled to a one-sixth part of all of the estate of said John Pforr, deceased, except his household furniture, books and pictures, the same to be reduced to money by a probate sale, and one-sixth part of the net proceeds distributed to her; that no part of the estate of said John Pforr can or may be distributed to petitioner without loss to the creditors of the estate.

On behalf of petitioner it is contended that the only provisions of this testament that are valid are those appointing the executrix and executor, and disposing of the books, pictures, and household furniture, thus making the deceased intestate as to the remainder of the property.

It is argued in the same behalf that the testamentary language creates a trust, and deposits the legal fee of the estate in the executors for a fixed and absolute term; that under it the beneficiaries take no interest in the property, but only the *462 right to have the trust enforced, and if either of the beneficiaries died before the termination of the trust, his interest would remain in the estate and a resulting trust would arise in favor of his heirs; that the will necessarily gives the fee in trust, for the right to sell and convey the fee and also to mortgage is given, which could not be done unless the fee were placed in the trustees.

It is further argued that the disputed dispository provisions are void because they violate section 715 of the Civil Code, and, also, section 724 of the same, since there is no disposition made of the net proceeds during the period named, but they are to be accumulated and east into the corpus of the estate to be divided at the end of the time indicated.

It is finally contended by petitioner that the court cannot undertake to meddle with the will by attempting to mend it, for such an instrument is contrary to public policy as established by the statute, as vice permeates the entire scheme of testator so completely that no part is effectual except the bequest of books, pictures and furniture, which is severable.

In connection with this last contention the rule of construe- . tion laid down by the appellate tribunal should be kept constantly before the eyes of the judge of the trial court. It must be remembered that the law abhors partial intestacy as nature is said to abhor a vacuum; and, therefore, if we can maintain the substantial integrity of the testamentary disposition by excising the unsound parts, it is our duty to save the substance by eliminating what is nonessential. The supreme court has expressed the rule in Estate of Pair, 136 Cal. 81 , 68 Pac. 306 , in these words:

The sections of the statute invoked in aid of this application read:

Is there here a suspension of the absolute power of alienation under section 715, Civil Code ? It is said by respondents that paragraph a, second, ’ ’ does not interfere with the power of alienation, but merely directs that the executors take charge of and hold the property for the term of two years; it suspends the distribution, but any heir can alienate his share without impediment from its terms. Respondents say that if any period within which alienation is suspended be created by this testament, it is found in paragraph “a, third,” but even that directs an alienation and does not prohibit one, and counsel cite the Toland Case, 123 Cal. 140 , 55 Pac. 681 , to sustain this view.

In the case at bar, paragraph “a, third,” expresses the desire of the testator that at the expiration of two years from the day of his demise the executrix and executor shall have the property sold at public auction or otherwise, and after paying *464 all indebtedness standing against it to divide the net proceeds of such sale into six equal parts or divisions, and to distribute the same share and share alike to his heirs and devisees as thereinafter set forth.

It is said by respondents that this does not prohibit a sale by the executors within the two years, and is, therefore, not a suspension of alienation. In the Poland case the supreme court said her direction to sell the land “so soon as” the leases are canceled designates a point of time after which the beneficiaries might enforce a sale, but does not postpone the right to make the sale until the expiration of the terms created by those leases. It is equivalent to a direction to sell the land “whenever” the leases are “canceled.” The word “canceled” is to be taken in its ordinary sense, and the use by her of that word instead of “expired,” or “determined,” justifies an inference that she had in her mind the possibility that the tenants might surrender the leases prior to the expiration of the term for which they were given. There was, therefore, no time after the death of the testatrix that an absolute interest in possession could not have been conveyed. The tenants could at any time by agreement with the executor cancel their leases, or unite with him in a conveyance, and, give to the grantee the fee and the possession of the land.

From this it is argued that the question of distribution is distinct from alienations. Respondents call attention to the opinion in a case decided in a co-ordinate department, while presided over by Hon. Charles W. Slack, in the matter of the Estate of Nickolaus Becker, No. 15,939, which being brief is here inserted:

In reference to this decision counsel for petitioner says that if Judge Slack intended to hold that the testator could place the property in the executors, and direct them and their executors to hold it in probate for one hundred years, and prévent any distribution by the probate court until after that time, his decision is not sustained by the work cited by him, but is opposed by that of all other authorities on the subject.

*466 As a matter of curiosity, if not particularly pertinent to this point, the will of Niekolaus Becker is here inserted, and it may be remarked incidentally that it seems to be (including the attestation clause) in the handwriting of John Pforr, the decedent testator herein:

In comparing these two documents a similarity of scheme may be perceived, and as they are both the product of the same penman, it is fair to presume that he wrote his own in 1902 on the plan of the one drawn in 1892, instructed by the ruling of Judge Slack in 1897. The testator here was the *468 draughtsman, apparently, as well as an executor of the Becker testament, and, as he was a man of affairs, properly assumed to understand how to construct such instruments, and undertook in the light of the law as he saw it and as it was interpreted by respectable authority to impose limitations upon the administration of his own estate such as were sustained in the matter of Becker.

These remarks may be regarded in the nature of surmise and speculation, and not necessary to the consideration of this case, but the reference to the record and the suggestion as to the probable facts in the other case may justify such sidelight allusion or observations.

In the Becker case the heir at law petitioner asked for partial distribution on the ground that the trust attempted to be created by her in the fourth and fifth clauses of the will was void in its inception, and in violation of the provisions of .section 716 of the Civil Code of California, and that all the property therein mentioned at the death of the testator passed to and vested in the heirs at law.

Section 716, Civil Code, says that every future interest is void in its creation which by any possibility may suspend the absolute power of alienation for a longer period than is prescribed in this chapter. Such power of alienation is suspended when there are no persons in being by whom an absolute interest in possession can be conveyed.

Judge Slack seemed to consider in his short statement of a conclusion that the New York cases settled the question, and that the attempted postponement of the period for distribution was not in contravention of the statutes. Petitioner challenges the correctness of this conclusion, but it may be said of his assertion that Chaplin does not support Judge Slack, but, on the contrary, and that work and all the authorities, so far as seen by petitioner, are opposed to the decision in the Becker case, that there is room for difference of opinion on this point.

The fact is, that decisions have been diverse, and that there is no such uniformity as to justify absolute assurance of authority on either side. It has been held that such provisions giving ample power to take in charge and manage the property, with a right to receive the rents and profits, could be very *469 well executed under such a power and occasion no suspension of alienation; and again, it has been decided that such a power as would seem to be created by “a, third” of the Pforr testament occasions suspension, because it operates to suspend the vesting of the fee until the power is executed or the estate is terminated.

In certain of the cases, the suspension was held to arise out of the particular provision of the will in hand, rendering imperative a sale at, and not before, a future date not limited by two lives.

In the case at bar, in clause “a, second,” testator desires and directs that his executors shall hold up his estate “for a term of two years” from the date of his demise; and in clause “a, third” he desires that they shall, at the expiration of that period, sell the property at public auction or otherwise, and after discharging all debts against it divide and distribute the proceeds. Now, if this constitutes a case where there is a power which, for the time being, renders absolute alienation impossible, and where it can be neither released nor extinguished, then suspension results. Much stress is laid,' in some cases, upon the fact that the power is imperative, and some important ruling rests upon this distinction. It is said that every trust power, unless its execution or nonexecution is made expressly to depend upon the will of the donee, is imperative, and imposes a duty the performance of which may be compelled in equity by the beneficiaries. This is the test: Is the power sought to be imposed imperative 1 If it is not imperative, but leaves a discretion possible to be perverted, such a contingency will not invalidate the power. Upon this question, appellate judges of eminence have differed diametrically.

Many cases are cited on either side of the proposition presented by petitioner, and each of the respective counsel undertakes to show that his opponent’s citations are inapposite or to be discriminated from the ease at bar; thus illustrating the remark sometimes made by appellate courts that little aid is derived from decisions in matters of testamentary construction ; each controversy has its own peculiarities developing its own doubts and difficulties, not easily settled by reference to other cases.

*470 The rule that construction of a will which involves intestacy is not to be favored is a salutary one, and where it can be applied it should be enforced.

If the parts of the will under censure be removed, and the remainder, freed from their operation, present an intact instrument expressive of the ultimate intention of the testator, then the court may declare the instrument void as to such paragraphs and executable as to the rest.

Take out clause “a, second” and “a, third” and we have the will in this shape:

If the situation here presented is such that among provisions valid by themselves there are clauses illegal for attempting undue suspension or postponement, which are not essential to the final scheme of testator, then they should be severed from the body of the testament and the main idea preserved. The main idea here was to divide the estate into six equal parts, and this may be done after the exclusion of the infected portions of the instrument as well as if those portions were untainted.

It does not necessarily follow that the whole scheme is vitiated because certain separable clauses are unsound.

The rule has been stated that where the testator’s main scheme is valid, it will not be destroyed by the presence of provisions which effect an illegal suspension, if these provisions are separable and not essential to the harmony and proportion of the whole; for then they may be cut out without destroying the general design.

In determining, in any given case, whether an invalid provision is or is not separable, it is said that importance may sometimes be attached to the form of the document.

If we regard form in this case, it will be seen upon inspection of the original that the instrument is so divided into paragraphs that any one may be removed without affecting the symmetry or stability of the entire structure. Certainly this is true of the paragraphs marked “a, second” and “a, third,” as appears above from the document with those divisions discarded. Expunge these clauses and we still have the intention of .the testator, validly expressed, to divide his estate in six parts, each part conveyed by its separate and sufficient words of devise.

The contention ef petitioner that the language of the will, in the clauses expunged by this process, creates a trust and places the legal fee of the property in the executrix and executor for a fixed and absolute term, has some seeming support in the eases cited, although in most of them the distinction dwelt upon by respondents, as to the California cases particularly, that those authorities presented conditions of *472 absolute trusts created after an estate had been administered upon and by a decree of distribution following the testamentary terms, and are not analogous to the Pforr will, where the circumstances are entirely connected with powers in probate, cannot be ignored by the court; but in view of the premises recited in this opinion that the paragraphs in question may be eliminated without harm to the entire instrument, since their vice, if they be vicious, does not necessarily affect the whole scheme of testamentary disposition, which is complete and valid without them, the petition for partial distribution should be denied.

Estate of John Pforr was Before the Supreme Court of California in 144 Cal. 121 , 77 Pac. 825 .

The Fact that a Portion of a Will is Invalid does not necessarily vitiate the effect of the entire instrument. A will may be void in part and valid and effectual as to the residue. On the other hand, the void provisions of a will may destroy the otherwise valid provisions. If there are valid and invalid clauses in a will, the question whether the valid ones may be allowed to stand depends'upon whether or not the invalid ones are so inextricably interwoven with them that they cannot be eliminated without interfering with or changing the main scheme of the testator. “When the several parts of a will are so intermingled or interdependent that the bad cannot be separated from the good, the will must fail altogether; but when it is possible to cut out the invalid provisions, so as to leave intact the parts that are valid, and to preserve the general plan of the testator, such a construction will be adopted as will prevent intestacy, either partial or total, as the case may be”: Estate of Fair, 136 Cal. 79 , 68 Pac. 306 ; Estate of Pichor, 139 Cal. 682 , 73 Pac. 606 ; Toland v. Toland, 123 Cal. 140 , 55 Pac. 681 .