THIRD DEPARTMENT, NOVEMBER TERM, 1901. [Vol. 66. teenth item of said will, and the said share upon the death of the said Robert II. and his wife Mary to devolve as in the said seventeenth item specified, and the share of said Mary S. Putnam to be held in trust by her husband John R. Putnam in accordance with the terms of the eighteenth item of said will, and to devolve on the death of said Mary S. Putnam as in the said eighteenth item specified. That the other three-fifths of said residuary estate and the income thereof vested at the death of the testator in Mary (Murray) C. Shoemaker Michael M. Shoemaker and Henrietta Christopher respectively in equal shares, the real estate in fee simple and the personal property absolutely." The said decree then refers to a condition subsequent contained in the 19th item of the will which relates to a child dying without lawful issue before the period of distribution mentioned in the 21st item of the will, and then the decree continues: "The said Murray C. Shoemaker having died within the said period, but leaving lawful issue, and the four other children having survived said period, the estates of Murray C., Michael M., and Henrietta Christopher have become absolute and vested estates in fee simple and not subject to any condition; that the time fixed by said twenty-first item for the distribution of said residuary estate having expired February 10, 1887, and no distribution thereof having been made, the said distributees are each and all entitled to have their shares distributed to them immediately as such absolute owners thereof, except Robert H. Shoemaker and Mary S. Putnam, who are entitled as above found. * * * " * * * From this decree John R. Putnam and Mary S. Putnam gave notice of appeal, but nothing further seems to have been done in bringing the appeal to a hearing. Thereafter a division of the personal property was made by the surviving executors and receipts taken from the different persons under said will; the receipt of John R. Putnam being as follows: "Rec'd of Exrs. of R. M. Shoemaker the same number of bonds as Mrs. Christopher, of same denomination and description. Sep't. 21, '87. John R. Putnam, trustee, etc." On the 13th day of April, 1898, the surviving executors of Robert M. Shoemaker, deceased, executed and delivered to John R. Putnam, his heirs and assigns forever in trust for the benefit of his wife Mary S. Putnam and her children, including the lineal descend App. Div.] THIRD DEPARTMENT, NOVEMBER TERM, 1901. ants of any deceased child upon the terms and conditions specified in said 18th clause of said last will and testament of said Robert M. Shoemaker, deceased, a deed of an interest in certain property in Saratoga county, N. Y. Thereafter and on the 14th day of July, 1899, John R. Putnam, trustee, under the last will and testament of Robert M. Shoemaker, deceased, and individually, executed and delivered a deed of the same property to his wife, Mary S. Putnam. John R. Putnam, as trustee, had transferred most, if not all, of the personal securities to the name of Mary S. Putnam. This was principally done shortly prior to his death. On the 28th day of November, 1899, John R. Putnam died on shipboard at or near Hong Kong. He left him surviving his widow, Mary S. Putnam, and three sons, Robert M. S. Putnam, the plaintiff herein, and John Risley Putnam and Israel Putnam, defendants herein. This action was commenced in the summer of 1900 for the purpose of having the trust under the will of said Robert M. Shoemaker established and declared and for the appointment of a trustee as a successor to John R. Putnam, deceased. On the 30th day of September, 1900, Mary S. Putnam died leaving a last will and testament and this action was changed in form to have a construction of that portion of the will of Robert M. Shoemaker relating to the trust construed and for the division. of the trust fund as between the plaintiff and his brothers John Risley Putnam and Israel Putnam. The personal representatives of said John R. Putnam, deceased, and of the said Mary S. Putnam, deceased, have been brought into and made parties to this action. The defendant John Risley Putnam joins in the prayer of the plaintiff herein. The defendant Israel Putnam claims that there never was any title in John R. Putnam, as trustee, but that the legal title to the entire fund vested in and has always remained in his mother, Mary S. Putnam, and passes under her will, or in case her will is not established then by virtue of the laws of this State relating to the descent and distribution of property in cases of intestacy. The trial court rendered an interlocutory judgment in favor of the contention of the plaintiff and the defendant John Risley Putnam. (34 Misc. Rep. 333.) C. H. Sturges and Corliss Sheldon, appellants in person and for the appellant Israel Putnam. THIRD DEPARTMENT, NOVEMBER TERM, 1901. [Vol. 66. A. Pennington Whitehead, Edgar T. Brackett and Nash Rockwood, for the respondent John Risley Putnam. Albert Stickney and Otto C. Wierum, Jr., for the plaintiff respondent. CHASE, J.: The decisions of the courts of the State of testator's domicile, as well as the decisions of the courts of this State, hold that the intention of the testator is the polar star to guide in the construction of wills, and that such intention is to be found in the language contained in the four corners of the will. (Collins v. Collins, 40 Ohio St. 353.) And in its construction the intention of the testator as gathered from the whole will must control when such intention is not in conflict with public policy (Carter v. Reddish, 32 Ohio St. 1), the settled rule of law (Thomas on Law of Estates Created by Will, vol. 2, 1645) or some prohibitive statute. The two years' period allowed to the executors under the 21st clause of the will, in which they may hold the residuum for investment before division, is an incident to the convenient settling of a large estate. (Robert v. Corning, 89 N. Y. 225.) The law of the domicile must prevail in the interpretation of wills (New York Life Ins. & Trust Co. v. Viele, 161 N. Y. 11), and the decree of the Court of Common Pleas of Hamilton county is binding upon the courts of this State. (Smith v. Central Trust Co., 154 N. Y. 333.) That court has held that the title to the property of Robert M. Shoemaker, deceased, vested in the legatees living at the testator's death. The important question for this court to consider is whether John R. Putnam, as trustee for the benefit of his wife and her children, took the title to one-fifth of the residue of the estate of testator, or whether the title thereto vested in Mary S. Putnam, leaving John R. Putnam merely a passive trustee without authority to do any effective act. In considering testamentary provisions the Ohio courts have gone even further than the courts of this State in upholding trusts for the benefit of remainder interests. In Johnson v. Johnson (51 Ohio St. 446) the will of testator provided: “I give and devise unto my beloved wife, Mary Ann A. Johnson, and her assigns all the remainder of my property, both real and personal, THIRD DEPARTMENT, NOVEMBER TERM, 1901. App. Div.] however the same may be known or wheresoever the same may be situate, with full power to bargain, sell, convey, exchange, or dispose of the same as she may think proper, but if at the time of her decease any of my said property shall remain unconsumed, my will is that the same be equally divided between my brothers and sisters and their children, if deceased, the children to have the same amount the parent would be entitled to if living." Held, that the widow took a life estate only, and that she was by implication a quasi trustee for those in remainder, and the interest of the brothers and sisters of the testators in the unconsumed property was a vested right which could not be destroyed by the act of the widow in disposing of the property by gift to a third party or otherwise than for her support or the benefit of the estate. To a similar effect are the decisions in Пuston v. Craighead (23 Ohio St. 198); Baxter v. Bowyer (19 id. 490); Watts v. Watts (38 id. 480), and other cases. In Ide's Executors v. Clark (5 Ohio Cir. 239) the mere words "Should my wife die I desire that her estate and mine * * * * * * be * * * divided equally among our several children," following after an absolute gift to the wife, were held to create a trust. The court said: "Controlling effect is due to the intention of the testator, and that intention must be gathered from the entire will. Where from the entire scope of a will and all of its terms it appears that the testator intended to charge the estate in the hands. of his immediate devisee with a trust in favor of others, the court will give effect to that intention whether the terms be in form dispositive, peremptory or precatory only." In Boyd's Lessee v. Talbert (12 Ohio, 212) the will contained an absolute devise to the wife, but in another clause were directions to the executors to lease, and, after paying taxes and ground rents, to pay the proceeds to the wife. It was held that the executors took the title charged with a trust in favor of the wife. The head note in Greene v. Greene (38 Ohio Wkly. Law Bul. 205) is as follows: "A provision in a will by which the testator gives to his wife, her heirs and assigns, his whole estate to use, enjoy and dispose of as she shall deem best, any remainder thereof at her death to be divided between the children, share and share alike, gives a life estate to the widow only, without the power of testamentary APP. DIV.- VOL. LXVI. 10 THIRD DEPARTMENT, NOVEMBER TERM, 1901. [Vol 66. disposition of the estate on her death." This decision was affirmed in 57 Ohio State, 628, on the authority of Johnson v. Johnson (supra). In Morse v. Morse (85 N. Y. 53) the court, in discussing what is necessary to a valid trust, say: "It is not essential that the words 'trust' or 'trustee' should be used, or that there should be a direct devise in terms to the trustee, or that the authority to receive the rents and profits should be conferred in express language. It is sufficient if the intention to create a trust under the statute can be fairly collected from the instrument, and what is implied from the language used is, as in other instruments, deemed to be expressed. Nor will the instrument necessarily fail as a trust, because the authority given could be executed by the creation of a mere power in trust." (See Donovan v. Van De Mark, 78 N. Y. 244; Cass v. Cass, 15 App. Div. 235.) In Howland v. Clendenin (134 N. Y. 305) testator devised and bequeathed all of his property to his eight children, naming them, and to their respective heirs, executors, administrators and assigns forever, to be divided equally between them, share and share alike. A subsequent provision of the will provided: "And with regard to the portions of my daughters, my will and direction are that my said executors, and the survivors and survivor of them be, and I hereby constitute them and him the trustees and trustee of the portions of my said daughters respectively, during their respective natural lives; and I hereby give and bequeath the same to my said executors and the survivors and survivor of them accordingly, in trust for my said daughters, respectively. * Held, that while the language of the earlier provision of the will, standing alone, would have given an absolute estate to the daughters, the whole, read together, gave simply a life estate to each daughter, and the portion of one dying without issue was not disposed of, but would go to the heirs at law and next of kin of the testator. * In Felter v. Ackerson (35 App. Div. 282) the testator gave his residuary estate to his children, naming them, "To be divided equally between them, share and share alike." By a subsequent provision of the will he directed that the shares to be given to two of the children named be held in trust for them, and that R. act as trustee of said property and pay over to said children the respective |