
    Eloise A. Close, Appellant, v. The Farmers’ Loan and Trust Company, as Executor, etc., of William F. Nisbet, Deceased, Respondent, Impleaded with Wills A. Seward.
    Second Department,
    October 18, 1907.
    Will construed—trust for life .with remainder over—trustee should account to remaindermen.
    A will leaving a portion.of an estate to the testator’s daughter, the same to be invested- by the executors for her benefit' in such securities as they may elect, the interest arising therefrom -to be-paid her semi-annually, and the proceeds ' of the share to' be paid to her brothers and sisters in the event of her dying without issue, creates, an express trust and not a mere.power in trust.
    The trustee holds legal- title on the death of the life beneficiary leaving children 1 and it is its duty to account to them.'. . • . •
    Appeal by the plaintiff, Eloisé A. Close, from a judgment of the Supreme Court iri favor of the defendants, entered in the office of' -the clerk of. the county of Westchester on the 11th day of August, 1904, upon the report of a referee dismissing the complaint upon the merits. • - • ;
    The suit is for an accounting against the sureties.for Henry C. Seivafd as substituted trustee under the. sixth clause of the-will of. Anthony J. Allaire, deceased. The surviving executor and trustee, appointed by the will, for whom the said trustee wás substituted by the Supreme Court, turned over to the said trustee the sum of $12,626.64, the principal of the alleged trust fund. The said trustee afterwards died, and only the sum of about $200 of the' said' trust fund was realized out of his estate by the plaintiff and her brother, the defendant Wills A. Seward, who was made a defendant because lie would not unite wifli her as a plaintiff. They are the only children and next of kin of Maria Etna Seward, mentioned in the said sixth clause of the said will of Anthony J. Allaire, her father, and now deceased, intestate.
    The said will leaves two-tliirds of the estate of the testator to his three sons and three daughters, viz., one-sixth part thereof to each son absolutely, and then one-sixtli part to each daughter by the fourth, fifth and sixth clauses thereof, each clause being in the same words, that for the said Maria Enia Seward (the sixth) being as follows:
    “ To my daughter Maria Ema Seward I also give one other equal sixth part of said remaining two-thirds. The same also to be invested by my executors for her benefit in such securities as they may. elect and the interest arising therefrom to be paid to her semiannually, and in the event of the said Maria Etna dying without issue, then the proceeds of said share to be divided among her brothers and sisters share and share alike.”
    One of the said defendant sureties died before judgment, and the other since. The executor of the latter has been substituted and is respondent here.
    
      Theodore H. Silkman [H. W. Alden with him on the brief] for the appellant.
    
      Hamilton Odell, for the respondent,
   Gaynor, J.:

It may be that more learning was resorted to below, and in argument at our bar, than is applicable to the case. If a trust was created by the sixth clause of the will, then upon the death of the life beneficiary, Maria Ema Seward, the trustee .was under a- duty to account to her children, viz., this plaintiff and her brother, the defendant Seward. If there was no trust, and instead the said mother was the absolute owner of the said fund when she died, then the duty of the trustee to account is to the executor or administrator of the said mother, and this suit was properly dismissed.

; By the said-clause the testator gave oné-sixth of two-thirds of his estate to his said daughter Maria Ema, “ thé saíne also to be invested by my executors for-her benefit in such securities as they -may elect and. the interest, arising therefrom to be paid to her semi-annually, and in the event of the said Maria Ema dying without issue then 'the proceeds of said share" to be' divided among her brothers and sisters share and share alike”. Here is an express trust to receive and invest the fund, arid pay the income to -the said daughter of the-testator for life. This vested the legal title in the trustees (Morse v. Morse, 85 N. Y. 53; Ward v. Ward, 105 id. 68). ' They could not deal with the fund as directed except by having title arid possession thereof.- The trust cannot therefore be.whittled 'down to.a mere power in trust, to which title or possession is not necessary.

How it may betrue as was held below'that a bequest to. one, but if he die without children (as is the provision here), then over (say to liis.brothers and sisters, as is the,'case here), becomes ah absolute .one to him if he die leaving children, and that in such ease the ■children would not take through tlie will, but as next of kin, in case-'of the intestacy of their parent. But that case, sim/plicvter, is' not here. On the contrary, there is á-trust here, from which it fol.lows that at the death of the life beneficiary- the legal title was in the trustees, with, duty to account to the plaintiff and her brother, and turn the property over to them, instead of it belonging to the. administrator or executor of'the life beneficiary, as it would, if the legal title Were in her, and which would'make am obligation to account.to such administrator or executor, instead of to the plaintiff and her brother. ■' '

The judgment should be reversed.

Hirschberg, P. J., Hooker, -Rich and Miller, JJ., concurred.

Judgment reversed-and new trial granted, costs to abide the event.  