It is claimed by the plaintiff that the seven notes for which it has obtained judgment were never properly executed, owing to the absence of Winslow's signature, not only as president of the Company but also as a guarantor, and that this defect was apparent upon the face of the paper, and deprived the notes of the character of commercial paper.

The case shows that the plaintiff had never adopted any general by-law prescribing a method for the execution of its pecuniary obligations; and there is no claim that it ever authorized the treasurer alone to issue them by any special resolution of its board of directors. Resolutions had frequently been adopted by the board, authorizing the treasurer and president together to execute notes for specified amounts duly guarantied by the twelve resident directors of the plaintiff company; and one or two resolutions were also adopted, providing for small amounts of paper, which did not prescribe any particular form of execution. But it had theretofore been the uniform prac tice of the plaintiff to cause all of its bonds and notes to be signed by both its president and treasurer, and guarantied by its twelve resident directors, of whom Winslow was one. Three of the notes in suit were so signed and guarantied and they belonged apparently to the same series as the seven not so signed.

The Trust Company had theretofore dealt largely in the plaintiff's paper, and at the time of receiving the securities mentioned was perfectly familiar with its mode of executing such obligations. It was also obvious from the form of the notes that it was intended to have them signed by the president, since a blank was left for that purpose at the usual place for a maker's signature. Not only did the seven notes in dispute show by mere inspection that they were imperfect and improperly executed, but they were never in fact authorized by the plaintiff to be issued in that form. There is nothing in the resolution of September, 1875, indicating an intention to authorize the treasurer to negotiate the notes with his signature alone; but it expressly required him not to sign them, but "to have them signed."

What is the natural significance of this language? It was obviously to have them signed by the officers who had theretofore been accustomed to sign such instruments for the Corporation.

Certainly no inference could be drawn that any other persons were authorized to sign and issue them than those whose usual practice it had been to sign like instruments. Indeed, a portion of these very notes issued under the same authority indicated the mode of execution intended; and it is an irresistible inference therefrom, either that they bore an unnecessary name, or that the other seven lacked an essential signature.

It, therefore, appears not only that the plaintiff never in fact authorized the transfer of obligations bearing the treasurer's signature alone; but there are no circumstances from which third parties had any right to infer such authority. On the contrary universal experience justifies the inference, from the very appearance of an unfinished instrument, especially when incomplete as to the signatures from which provision seems to have been made, that the orig

inal intention which impelled the maker to undertake its execution was abandoned.

Although Winslow was intrusted to sell these notes and would have been authorized to transfer them by affixing his signature, as president and guarantor, thereto, yet he had no authority to dispose of them without performing the implied condition imposed by the plaintiff upon such exercise of authority.

Not only the paper itself but the plaintiff's uniform custom bore evidence of the condition which attached to Winslow's right to transfer the paper. The performance of this condition materially affected the legal rights of the plaintiff and its guarantors, and could not be omitted without prejudice to their interests. It is quite clear, therefore, that these seven notes were never executed as the plaintiff intended they should be; and the question arises, not whether for any reason they were enforceable against the plaintiff but whether the transferee of such notes, by paying value therefor, became clothed with the character of a bona fide purchaser.

The authorities seem to be consistent and uniform to the effect that the defendant cannot be considered such a holder.

The suggestion that a party issuing negotiable paper with blank spaces therein, apparently intended to be filled up to make a complete contract, impliedly authorizes its holder to insert appropriate words in such blanks may be dismissed as inapplicable to such a case as this.

It has sometimes been held that a party signing such paper and delivering it to a third party unfilled, by implication confers such authority; but it can hardly be claimed that one drawing the form of a promissory note, which is unsigned and falls into the hands of another, thereby authorizes the holder to attach the maker's signature or to add anything which is incomplete in its execution.

The rule that a party buying commercial paper which remains in some essential particular incompleted and imperfect does not acquire the character of a bona fide holder, rests upon sound reasons and is well established in commercial law.

No stronger evidence could be afforded that such paper had been prematurely put in circulation contrary to the will and intention of its maker than the fact that it had not been fully and completely prepared to perform the office for which it was designed. It is apparent that such paper must have been taken from the possession of its maker before an intention to part with it had been fully formed, and that he still designed to add some provision or formality to give it vitality and effect. It was said by the late Judge Folger in Ledwich v. McKim, 53 N. Y. 313, that "A negotiable instrument must be a complete and perfect instrument when it is issued, or there must be authority reposed in some one afterwards to supply anything needed to make it perfect."

The rule is also laid down in Daniels on Negotiable Instruments. SS 841, 842. We cannot, therefore, hold that the Trust Company became the bona fide holders of the seven notes.

The reasons which lead us to this conclusion would also seem to require us to hold that the trial judge erred in directing the jury to assess

Knox v. Jones, 47 N. Y. 389, 397; Schettler v. Smith, 41 N. Y. 328, 334; Colton v. Fox, 67 N. Y. 348; Smith v. Edwards, 88 N. Y. 92. Does the will create a valid, express trust? Section 60 of the Statute of Uses and Trusts (1 R. S. 679), provides that a valid, express trust shall vest the whole estate in the trustees, in law and in equity, subject only to the execution of the trust. Conversely, if no estate is given to trustees, there is no valid express trust. In no clause of this will is any estate whatever given directly to the executors. Neither "trust" nor "trustee" appears in any portion of the will except the codicil, and the fact that the codicil contains the word "trustees" does not create a valid trust.

Verdin v. Slocum, 71 N. Y. 345.

The gift is directly to the wife. She takes absolutely and directly; Monarque v. Monarque, 80 N. Y. 320; and an estate thus given cannot be taken away or cut down by any subsequent words that are not as clear and decisive, certainly not by implication.

Roseboom v. Roseboom, 81 N. Y. 356; Campbell v. Beaumont, 91 N. Y. 464.

and the cases cited in 88 N. Y. 477, are direct authorities against the construction of a trust in this will.

If the more important provisions of this will, should be controlled by the less important and contingent provisions, it is submitted that if the latter provisions impose any active duties whatever upon the executors, such duties are merely to pay debts, expenses and (in certain contingencies) legacies, and that such duties are insufficient for the purposes of a trust. Re Will of Fox, 52 Ñ., Y. 530, 536; Dill v. Wisner, 88 N. Y. 153.

It is well settled that an instrument should not be construed to create a trust, unless its words plainly indicate such an intention.

Heermans v. Robertson, 64 N. Y. 332, 343; Heermans v. Burt, 78 N. Y. 259.

Mr. George G. DeWitt, Jr., for respondent:

Smith v. Van Ostrand, 64 N. Y. 278, 282. Words must be supplied to cut down an apparent absolute gift; and this cannot be done unless the language actually used by the testator requires it. We are not to conjecture what he meant, but ascertain the meaning of his words.

Campbell v. Beaumont, 91 N. Y. 467. The cases relied upon by the court below are distinguishable.

The will in the case of Robert v. Corning, 89 N. Y. 227, by its fourth paragraph gives the estate directly to the executors; while the will in question places the estate immediately in the hands of the widow and the sons.

In Savage v. Burnham, 17 N. Y. 561, the will gave the estate in question to specified trustees upon certain specified trusts.

In Vernon v. Vernon, 53 N. Y. 351, the will gave all the estate to the executors and trustees in the first instance, and then gave a house and lot to the wife; but it said that the executors might sell the same (it was held that the executors took no estate in that house and lot), and then gave his wife an annuity "to be paid semi-annually by my executors" out of certain specified rents.

In Low v. Harmony, 72 N. Y. 408, the will directed the executors to invest $10,000; "And the interest of the same shall go towards the support of Alice Harmony, *** only the interest or income paid over to herself."

In Tobias v. Ketchum, 32 N. Y. 319, 321, the will gave the executors express directions as to the division of the proceeds of testator's estate and authorizes them "to rent, lease, repair and insure.”

In Biiven v. Seymour, 88 N. Y. 469, 477, the will is more like the one under consideration, than is that found in either of the above cited

Westcott v. Cady, 5 Johns. Ch. 334; Howland v. Union Theological Seminary, 5 N. Y. 193; Morse v. Morse, 85 N. Y. 60.

The fact that there is no express devise to the executors in trust is immaterial. No devise in express words is necessary to create a trust estate.

Robert v. Corning, 89 N. Y. 225.

The courts have uniformly held that to create a trust it is not essential to use the words "trust" or "trustee;" or that the authority to receive rents and income should be conferred in express language. They have also held, where it appears to have been the intention of the testator, as gathered from his will, that the income given to one by the will is to be received by the beneficiary through the medium of an executor, that a trust is established.

Craig v. Craig, 3 Barb. Ch. 76; Leggett v. Perkins, 2 N. Y. 297; Savage v. Burnham, 17 N. Y. 561; Tobias v. Ketchum, 32 N. Y. 319; Vernon v. Vernon, 53 N. Y. 351; Low v. Harmony, 72 N. Y. 408; Morse v. Morse, 85 N. Y. 53; Marx v. McGlynn, 88 N. Y. 357; Robert v. Corning, 89 N. Y. 225; Hathaway v. Hathaway, 37 Hun, 265.

It was the intention of the testator to continue the trust after the death of the wife during the lives of the sons.

There is no illegal suspension for a period beyond two lives. The trusts for the two sons, although embraced in a single fund, are distinct and separable trusts and terminate at their deaths respectively.

Savage v. Burnham, 17 N. Y. 561; Stevenson v. Lesley, 70 N. Y. 512; Monarque v. Monarque, 80 N. Y. 320; Wells v. Wells, 88 N. Y. 323. By the well settled rules of construction the word "heirs,' as used in the trust clause, is equivalent to "children" or "descendants."

"

Heard v. Horton, 1 Denio, 165; Vannorsdall v. Van Deventer, 51 Barb. 137; Scott v. Guernsey, 48 N. Y. 106; Lytle v. Beveridge, 58 N. Y. 592.

The executors are empowered by the will to sell the real estate and give good title. Such power of sale is created by the following words of the will:

"Should my executors deem it necessary and advisable for the better security and interest of my estate to change the investment of my property, they may dispose of all or any part of it." Livingston v. Murray, 39 How. Pr. 102; Phillips v. Davies, 92 N. Y. 199.

Danforth, J., delivered the opinion of the

court:

The testator died in August, 1884, leaving a will and codicil, which were duly admitted to probate, as a will of real and personal estate. These, under established rules, are to be taken as one instrument and construed together as expressing the intent of the testator. If in one, therefore, the omission of certain technical words gives color to the contention of the appellant: that no express trust is created, the other declares the design of the testator that the executor and executrix shall take the residuary estate for the object declared and set forth in the will, and it is sufficient if from the two instruments it can be implied that his intent was to establish a trust. Morse v. Morse, 85 N. Y. 53.

By the will he appoints his wife executrix and his brother executor, and by the codicil he says, "I do nominate and appoint" them "as my trustees for the purpose of carrying out any of its provisions." In the first place it would be difficult if not impossible to carry into effect the plan devised by the testator, except through the intervention of some third person who might collect, manage and retain his property until the time arrived for final distribution. Such functions are imposed upon the executors. They are to pay the debts of the testator out of his estate, as soon "as shall by them be found convenient."

Each son is to have in property or money $10,000 on arriving at the age of thirty years. It was also the intention of the testator to provide for the support of his mother, his aunt and his sister, out of the property, and that so much as might be necessary should be paid to them for that purpose. To his wife the testator gave all his household furniture, "and the use and income "of all his real and personal estate "during her life," or "until after" his "death she marries," but in that case," in lieu of all dower, $10,000 in money to be paid " by his executors; and they are in terms authorized to dispose of any of his property to pay this sum, or to pay the legacies given to his sons. And although, as we have seen, his wife was to have the income of his estate, the executors are authorized in their discretion "to change the investment of" the testator's property, or dispose of all or any part of it," and invest the proceeds" in United States government, or New York state, or New York city bonds registered, or on bond and mortgage.

tion only; and in case of one having no heirs, then to the heirs of the other share and share alike; and if both should have no heirs, then as the law directs."

It is plain, therefore, that the executors are to have the management and direction of, and title to the property not specifically bequeathed, until the children attain the age of thirty years; and upon their death only the residue goes to whomsoever shall be entitled to it, in remainder. The executors may not only invest, but reinvest; and in whose name, if not their own, shall the government, state or city securities be registered? They may also sell any part of the estate as in their judgment becomes necessary; they are to divide, therefore they are to receive, the income.

By these incidents the case seems to be brought within the rule that when the duties imposed are active and render the possession of the estate convenient and reasonably necessary, the executors will be deemed trustees for the performance of their duties, to the same extent as though declared to be so by the most explicit language. Tobias v. Ketchum, 32 N. Y. 319; Robert v. Corning, 89 N. Y. 225.

The remaining question has been presented with much earnestness on the part of the learned counsel for the appellant, and is of greater difficulty. His contention is that the power of alienation of a portion of the estate is illegally suspended for a period beyond two lives; and the argument is placed on words already quoted.

As before suggested the trust created by the testator will continue after the wife's death and during the lives of the two sons. But upon the death of either, the children of the one dying, if he has any, will be entitled to his share, but if he has none, then the heirs of his brother will be entitled to it, and upon the death of that brother, leaving heirs, the same result follows; or, both dying without heirs, the estate must go where the law directs.

It follows that the property cannot be sold, except for the purposes of the trust, during the life of the widow. That is a suspension for life. It must remain undisposed of during the life of the son first dying, that is the second life, and still undisposed of during the life of the other son, for the time fixed for distribution is the death of both sons. That makes the third life; and it is clear that the suspension of absolute ownership will or may exceed a longer period than the continuance of two lives. All these lives were in being at the time of the death of the testator, and must terminate not only as a condition precedent to the taking effect of the gift over, but before it can be known who will be entitled ultimately to take. This limitation is too remote and renders the disposition void. 1 R. S. 773, § 1; Knox v. Jones, 47 N. Y. 389; Colton v. Fox, 67 N. Y. 348; Smith v. Edwards, 88 N. Y. 92; Bailey v. Bailey, 97 N. Y. 460.

In Monarque v. Monarque, 80 N. Y. 320, the widow had the first life estate, and at her death the four daughters of the testator took for life; and upon the death of any daughter the fee of one fourth part at once vested in her children.