
    (75 Hun, 239.)
    RAYMOND et al. v. ROCHESTER TRUST & SAFE DEPOSIT CO.
    (Supreme Court, General Term, Fifth Department.
    January 18, 1894.)
    W ills—Construction—Trusts.
    Testator bequeathed all his property, real and personal, to his wife for life, and authorized his executors, out of any moneys that might come into their hands, to pay all taxes and interest, etc., on incumbrances on the real estate, and to sell and dispose of any of the real estate. Held, that the will created a trust as to the personal property, which could not be divested or extinguished during the lifetime of the widow.
    Submission of controversy without action under Code Civil Proc. § 1279, between Harriett A. Raymond, Dora V. Rappleyea, and Ina Jane Lotzar, as plaintiffs, and the Rochester Trust & Safe-Deposit Company, administrator with the will annexed of Henry B. Raymond, deceased, as defendant. Judgment for defendant.
    Argued before DWIGHT, P. J., and HAIGHT and LEWIS, JJ..
    W. H. Shuart, for plaintiffs.
    W. N. Cogswell, for defendant.
   DWIGHT, P. J.

The controversy here submitted relates to the-construction of the will of the defendant’s testator, of which the following is the text, complete, viz.:

“I, Henry B. Raymond, of the city of Rochester, Monroe county, N. Y., do make, publish, and declare this, my last will and testament, as follows,, to wit:
“First. After all my lawful debts and funeral expenses are paid, I give, devise, and bequeath to my wife, Hattie A. Raymond, the use of all my real and personal property, including all life-insurance moneys, during the-term of her natural life, or so long as she shall remain my widow, charging ■and directing, however, that my said wife give and furnish to my father, Alexander R. Raymond, a good and comfortable support and maintenance during his natural life.
“Second. After the death or remarriage of my said wife, I give, devise, and bequeath the rest, residue, and remainder of my property to my children;. Frank H. Raymond and Dora S. Rappleyea, forever, share and share alike.
“Third. I authorize my executors, hereinafter named, out of any moneys which may come into their hands, to pay any and all taxes, interest, of payments on incumbrances on my real estate, which in their discretion may be necessary and proper; and I further authorize and empower my said executors to sell and dispose of any and all of my real estate, and give good and sufficient deeds of conveyance therefor.
“I hereby constitute 'and appoint my said wife, Hattie A. Raymond, and John 0. Bertholf, of the city of Rochester; Monroe county, N. Y., as the executors of this, my last will and testament, revoking hereby all former wills by me made.
“In witness whereof I have hereunto set my hand, and affixed my seal, this 33rd day of. February, 1891.
[Signed] “Henry B. Raymond. [L. S.]”

The specific question submitted is whether this will, by its third clause, creates a trust as to personal property which cannot be divested or extinguished during the lifetime or widowhood of the widow, the plaintiff Harriett A. Raymond. Letters testamentary were originally granted to John 0. Bertholf, above named, as one of the executors of the will, but they were subsequently revoked, and letters of administration with the will annexed were issued to the defendant. The controversy arises under the following circumstances : The devisee and legatee in remainder Frank H. Raymond has sold all his interest in the estate, real and personal, to the plaintiff Lotzar, and the latter, with the other legatee and devisee in remainder, Mrs. Rappleyea, have agreed to sell all their interest in the estate to the widow, and she has agreed to purchase the same, at a fixed price, provided the defendant, as administrator, etc., will account and pay over to her, as the assignee of the other .two plaintiffs, absolutely, all the balance of personal property remaining in its hands. This the defendant, as such administrator, declines to do before it shall have been judicially determined whether there is not an existing trust under the will which cannot be divested or extinguished during the life or widowhood of. the plaintiff Mrs. Raymond, and it unites in the present submission to obtain the determination mentioned. The action of the defendant was prudent, and its contention here we believe to be well founded. The defendant, as successor or substitute for the executors named in the will, though not in terms denominated a trustee by the will, was yet manifestly charged with a trust in respect to the personal estate. Ward v. Ward, 105 N. Y. 68, 11 N. E. 373, and the cases cited; Marx v. McGlynn, 88 N. Y. 358-375. In this case the trust was not merely to invest the moneys of the estate, and collect the income, thereof and pay it to the widow during the term limited by the will, but also, in their discretion, to apply such moneys for the benefit of the real estate, not only in the payment of taxes and assessments, but. in the reduction of existing incumbrances thereon. These incidents certainly rendered the possession of the corpus of the estate by the executors “convenient and reasonably necessary,” and, as was said in Ward v. Ward, supra, rendered them “trustees for the performance of their duties to the full extent, as though declared to be so by the most explicit language.” Such a trust being created and devolved upon the person or persons finally charged with the execution of the will, it seems to be settled by authority, as well as consonant with the reason of the case, that it will not be terminated or extinguished by the union of the interests of the life tenant and the reaminder-men in one person. Such is the clear doctrine of the cases of Greer v. Chester, 62 Hun, 329, 17 N. Y. Supp. 238, affirmed in court of appeals, 131 N. Y. 629, 30 N. E. 863, and Asche v. Asche, 113 N. Y. 232, 21 N. E. 70; and both the rule and the reason of it are well stated in the opinion of Adlington, in Re Lewis’ Estate, 3 Misc. Rep. 164, 23 N. Y. Supp. 287. In the first of the cases cited, it resulted, from the declared invalidity of certain provisions of the will, that the beneficial interest in a trust for life, and the estate in remainder in the same fund, became at once united in the same person. The court at general term in the third department say:

“There is nothing inconsistent in the fact that the trustee should have an estate in trust for the life of the beneficiary, and 'that the beneficiary should have the remainder in fee. * * * He can dispose of the remainder in the half of the estate in which he has a beneficial interest, subject to the trust. But, notwithstanding this, the object of the testatrix, (as we may suppose,) viz. to seciu-e the income to the grandson for life against the risks of business or improvidence, should be carried out.”

And in Asche v. Asche, the widow, as in this case, was the beneficiary of the trust for her life, and the remainder-men were her own two children; and it was argued that, upon the death of both children, the widow, as their heir, and at the same time the sole beneficiary of the trust, would become entitled to the immediate possession and control of the trust fund. But the court say:

“We do not think so. The object of the creation of the trust estate would not then have been accomplished. The intention of the testator to put the corpus of the fund beyond the hazard of impairment and waste during the life of his wife cannot be defeated or affected by the acquisition by her of the estates in remainder created by the will.”

This statement discloses an apparently sufficient reason for the rule previously stated, and it is applicable, in terms, to the case before us. The question propounded by this submission must be answered in the affirmative, and judgment accordingly directed in favor of the defendant. So ordered, with costs to the defendant payable out of the fund. All concur.  