....

....

with the payment of the foregoing bequests and legacies, and it being, as I now believe, with moneyed securities on hand, amply sufficient to pay said legacies in full, together with the taxes . . . . on my real property, so that at the expiration of said period the residue of said real estate . . . should remain unencumbered and intact. After the payment of said legacies, the said property and estate shall be managed for the joint benefit of my said three sons, . . . . who shall annually render to each other a just and full statement of the rents, issues, and profits, and all transactions relating to said property and estate." Then follow two provisions, one empowering the trustees to sell all the realty, except certain specific pieces, on certain conditions, and the other enjoining against any partition or division of the estate devised in trust to his sons until the expiration of six years, under penalty of forfeiture of the interest of the son offending. Then follows this (the fifteenth) clause: "15. At the expiration of said period of six years, the rest and residue of my said estate, real and personal, remaining after the payment of said legacies and debts, shall belong to my said three sons, John B. Greene, Harry B. Greene, and Samuel B. Greene, share and share alike, their heirs and assigns forever."

The last clause in his will is termed by testator as "explanatory and qualifying." He says a partition of the estate "as at present situated" would be detrimental to his three sons, and that the personalty would nearly suffice to pay the legacies; but in case of an exigency, he authorizes them "to mortgage the real estate" for that purpose.

The difficulty which this will creates in the work of construction exemplifies the value of the rule which is controlling upon the courts in the interpretation of wills; that the intention of the testator, if discoverable and lawful, shall prevail and be effectuated. In this will the language is involved; clauses are in seeming conflict, and some provisions are illegal. But notwithstanding the confusion and conflict of language, a purpose is evident from a consideration of the whole testament, and that is, that the three sons, who are constituted executors and trustees, are to have the whole of the testator's estate which shall remain after the payment of legacies, etc. The idea is prominent that the personalty will suffice for every testamentary provision requiring the use of moneys by the executors. The restriction upon a partition between the sons

is, plainly, based upon the desire that the real estate shall be left to improve in value, and that its income shall meet any deficiencies in the application of the personalty to the payment of legacies, etc. Of the legality of such a restriction we shall speak hereafter. We shall first see if and how this will, in its residuary scheme, may be upheld.

By the fifth clause the testator, in terms, gives the residue of his estate to his three sons, as trustees, "to execute the trusts thereafter specified." Without the aid of this language we should have no difficulty in holding that that clause conferred a legal estate upon the trustees named, wherever a valid express trust was created. That principle was expressly declared in Manice v. Manice, 43 N. Y. 303, where there was a general devise of the residuary estate to the executors, in trust, for the uses and purposes set forth in the will. It was there considered that such a general devise in trust vested the legal estate in the trustees for such legal purposes as required it to be vested in them, and in other respects it would be inoperative. So in this case, the general devise in trust may apply to the valid trusts created for the testator's wife and sister, and will vest the trustees with the requisite legal estate. What, then, is in the remaining trust which the testator has attempted to create? Substantially, the trustees were to hold and manage the residue of the estate for six years, for the joint benefit of themselves, as the three sons, and at the expiration of that period of time it was given to them in equal shares absolutely. Such a trust would be wholly invalid, if for no other reason, because it would be for a period not measured by lives. But there is a fundamental objection to our construing this provision as a trust. To the constitution of every express trust there are essential these elements, namely, a trustee, an estate devised to him, and a beneficiary. The trustee and the beneficiary must be distinct personalities, or, otherwise, there could be no trust, and the merger of interests in the same person would effect a legal estate in him, of the same duration as the beneficial interest designed: 2 R. S. 727, secs. 47, 55; Woodward v. James, 115 N. Y. 346. That the legal and beneficial estates can exist and be maintained separately in the same person is an inconceivable proposition. It is quite as much of an impossibility, legally considered, as it is physically. These three sons would have the actual possession of the lands; they would be entitled to receive and retain and enjoy the rents and profits, and they and their heirs would

be subjected to no change of title or possession, nor other diminution of interest than what might be produced by an application of income, or of any proceeds of sales, to the payment of legacies. The result is, that they have every estate and interest in possession, in remainder and in reversion, or in other words, the whole fee of the property. It was the design of the legislature, in the revision of the statute of uses, to abolish technical and useless distinctions between the title and the use, and to convert the estate of a beneficiary into a legal estate, commensurate with the beneficial interest intended, whenever the trust was of a passive or formal character, and the actual possession and fruits of possession were the beneficiary's. Under section 47 of the article upon uses and trusts, if a person by virtue of a devise shall be entitled to the actual possession of lands, and the receipt of the rents and profits thereof, in law or in equity, he shall be deemed to have a legal estate of the same quality and duration, and subject to the same conditions as his beneficial interest. This article would distinctly operate upon the devise which this testator made in favor of his three sons, to vest in them, from the time of his death, a legal estate in fee in the lands, and the only conditions, subject to which the devisees would take, would be that the land might be resorted to for the payment of legacies,

etc.

As executors, they would administer upon the personalty in the payment of debts and legacies, and in the establishment of the trust funds directed. If the personalty proved insufficient, they were to sell or mortgage the realty to com. plete that much of the testator's plan of distribution of his estate. Whether such a sale or mortgage would be made under the power conferred by the will, or whether it would be by contribution of the devisees is, obviously, quite a profitless discussion. The fact was, that the real estate was charged with the payment of debts and bequests in the hands of the devisees, and they were personally bound for the payment: Brown v. Knapp, 79 N. Y. 136.

It is in no wise necessary, and there are no conditions which demand, that we should construe an express trust out of the residuary devise for the three sons. The doctrine established by the cases is, that a trust estate will never be implied, where it would render a will illegal and void. If we were to hold this devise to be an express trust, we should be doing a work which would result in overthrowing the whole testamentary

scheme, for the accomplishment of no useful purpose, and not demanded by any legal principle.

If it is urged that the inhibition against a partition or a division of the estate for a period of six years and the restriction upon the power of alienation are provisions which for their illegality affect the will, the answer is, that, as invalid limitations upon the free ownership of the property devised, they are void, and may be disregarded: Henderson v. Henderson, 113 N. Y. 1, 15; Harrison v. Harrison, 36 N. Y. 543.

The present case illustrates the peculiar character of cases involving the construction of wills. Each case must be determined upon its own particular facts and features, and former precedents are rarely availing in the office of construction. The supreme importance of giving effect to the last will of the decedent requires the court to search out his intention and to validate his scheme, unless to do so would contravene the statute. The endeavor is to find a way of upholding the will, not of breaking it down; and thus in every case the inherent purpose, if lawful, should be effectuated through what legal channels of construction may be open. We should not make a new will for the testator, and we need not strain to support his testamentary plan, if the object is unworthy, or commands our just condemnation.

The complaint was properly dismissed by the trial court, and the judgment of the general term, affirming the judg ment of dismissal, should be affirmed by us, with costs.

WILLS, INTERPRETATION OF. — In construing a will, the intention of the testator is to be ascertained and given effect: Shadden v. Hembree, 17 Or. 14; Jasper v. Jasper, 17 Or. 590; Dulany v. Middleton, 72 Md. 67; Roe v. Vingut, 117 N. Y. 204; Bartlett v. Patton, 33 W. Va. 71; Morrison v. Sessions's Estate, 70 Mich. 297; 14 Am. St. Rep. 500, and note. A will void in part may nevertheless be good for the residue: Kane v. Gott, 24 Wend. 641; 35 Am. Dec. 641. Of two constructions that may be put upon a will, the one which will sustain it is preferred to the one which will defeat it: Roe v. Vingul, 117 V. Y. 204

READ V. WILLIAMS.

[125 NEW YORK, 560.J

WILLS, JURISDICTION TO CONSTRUE-Court of equity has jurisdiction in an action in behalf of the next of kin of a testator to construe a will disposing of personal estate, where the disposition made by the testator is claimed to be invalid and inoperative, though such next of kin claim in hostility to the will.

PERPETUITIES.-A PROVISION IN A WILL, Setting apart A TRUST FUND

TO BE PERPETUALLY KEPT by the trustees, and by them applied to cemetery purposes, is void, because it involves an unlawful suspension of the ownership of personal property. WILL-DEVISE VOID FOR WANT OF DESIGNATION OF BENEFICIARIES. A devise of the residue of testator's property to such charitable institutions and in such proportions as his executors and J. H. shall choose and designate, is void, because it substitutes for the will of the testator the will and discretion of the donees of the power; nor can such will be made valid by the donees of the power designating and thus making certain the beneficiaries.

J. Edward Swanstrom, Manley A. Raymond, P. H. Vernon, Fordham Morris, and John E. Parsons, for the appellants.

Charles A. Jackson, for the respondents.

ANDREWS, J. The jurisdiction of a court of equity to entertain an action in behalf of the next of kin of a testator for the construction of a will disposing of personal estate, where the disposition made by the testator is claimed to be invalid or inoperative for any cause, was asserted by the chancellor in Bowers v. Smith, 10 Paige, 200, and was maintained in Wager v. Wager, 89 N. Y. 161, and in Holland v. Alcock, 108 N. Y. 312; 2 Am. St. Rep. 420.

It is true that in such cases the next of kin claim in hostility to the will; but the executors, in case the disposition made by the testator is invalid or cannot take effect, hold the personalty upon a resulting trust for those entitled under the statute of distributions, and thereby the jurisdiction to bring an equitable action for construction, and to have the resulting trust declared by the court, attaches as incident to the jurisdiction of equity over trusts. The Code of Civil Procedure, section 1866, has extended the remedy so as to include suits for construction of devises in behalf of heirs claiming adversely to the will; and it would not be consistent with the spirit of this legislation to narrow the jurisdiction in cases of bequests of personalty. The case of Chipman v. Montgomery, 63 N. Y. 221, contains expressions which, considered independently of the facts of the case, may seem adverse to this view; but, as was