
    Bridget Reynolds and Mary Morris, Respondents, v. John Reynolds, Individually and as Executor, etc., of John McGuire, Deceased, Respondent, Impleaded with Margaret Shearan and Others, Appellants.
    Second Department,
    April 9, 1915.
    Will — trust — failure to name beneficiaries — action to impress trust upon personal property — evidence dehors will identifying beneficiaries — decree of surrogate declaring trust provision invalid not res adjudicata.
    Where, in an action by two sisters of the testator to impress a trust upon personal property under a provision in the will by which the testator gave all his personal property to his executor in trust, to dispose of as he had ‘ ‘ advised and directed him to do giving him full power and authority,” it appears from evidence dehors the will that the testator, prior to making the will, had expressly told the executor that he desired to have his personal property divided in equal shares among his two sisters, and that if he would so divide the property he would make a will, a judgment in favor of the plaintiff should be affirmed.
    The fact that the surrogate, when the will was offered for probate, declared the trust provision void, is not conclusive upon the plaintiffs in this action-
    Appeal by the defendants, Margaret Shearan and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 16th day of December, 1914, upon the decision of the court after a trial at the Kings County Special Term.
    
      Michael J. Egan and L. J. Morrison, for the appellants.
    
      Henry F. Cochrane, for the respondents.
   Rich, J.:

The defendants, with the exception of John Reynolds, appeal from a judgment of the Special Term in favor of the plaintiffs, in an action brought to impress a trust upon personal property, under the provisions of the 6th paragraph of the will of Reverend John McGuire, deceased, by which such property was bequeathed to his executor, the defendant Reynolds, in the following language:

“Item Sixth. I do hereby give and bequeath to my said Executor all of the personal property [of] which I may die possessed and which I may own at the time of my death in trust, however, and for the purposes of paying out and disposing of same as I have advised and directed him to do giving him full power and authority as my executor to fully sign, execute and deliver any and all releases, satisfactions of mortgages and other papers necessary for the fully carrying out of the directions so given and to be of full power and effect as though I was personally present and to acknowledge any and all' ne<> essary papers in the matter of carrying out the trust reposed in him.”

The learned trial court has found and the evidence is sufficient to sustain his findings:

“IV. That about two weeks prior to his death the said John McGuire stated and declared to the said John Reynolds that he was desirous of making a will.
“V. That at various times thereafter the said John McGuire stated and declared that he intended to make a will, and further stated and represented to the said John Reynolds that he had a large amount of personal property that he desired to dispose of in a certain manner.
“ VI. That thereafter and prior to the execution of his will, the said John McGuire stated and represented to the said John Reynolds that the disposition which he desired to make of his personal property was to give the same in equal shares to his sisters, Bridget Reynolds and Mary Morris, and he further stated and represented to the said John Reynolds that if he would undertake to dispose of the said personal property in equal shares between the said Bridget Reynolds and Mary Morris, he would make a will, by the terms of which he would leave the said personal estate to the said John Reynolds, in trust, to pay out the same according to the directions which he had given to him, to divide the same equally between the said Bridget Reynolds and Mary Morris.
“ VII. That the said John Reynolds promised and agreed to and with the said John McGuire, that if he, the said John McGuire, would make such a will, that he would carry out the directions of the said John McGuire, and pay out and dispose of the property bequeathed to him in equal shares between the said Bridget Reynolds and Mary Morris,
“Yin. That thereafter, and after the making of the said promise and agreement by the said John Reynolds, and in reliance thereon, the said John McGuire, on the 29th day of April, 1912, made and executed his will in writing, wherein and whereby he appointed said John Reynolds his executor and trustee, and bequeathed him all of his personal property, in trust, to be paid out and disposed of by him according to directions given the said John Reynolds by the said John McGuire to divide the same equally between the said Bridget Reynolds and Mary Morris.
‘ ‘ IX. That thereafter the plaintiffs duly demanded that the said John Reynolds carry out and perform his promise and agreement made to and with the said John McGuire to pay out and distribute the personal property of the said John McGuire to the plaintiffs in equal shares, which demand has been refused by the said John Reynolds.”

No exceptions to the findings were filed by the appellants. The plaintiffs are sisters of the decedent, residing in Ireland, and are the sisters to whom he referred in his conversations with Reynolds. In addition to these sisters, the testator left him surviving, as his. heirs at law and next of kin, Thomas McGuire, a brother, since deceased, the defendants Margaret Shearan, a sister, Elizabeth Rowe, Thomas McGuire, John McGuire and Philip McGuire, children of a deceased brother, Patrick McGuire. The defendant Ellen McGuire is the administratrix of the deceased Thomas McGuire, and upon her appointment was duly substituted as a party defendant in his place. Of his brother Thomas and his sister Margaret Shearan, the deceased while planning the disposition of his property said: “No, I won’t acknowledge them at all.” Mr. Olwell, the lawyer who prepared the will, took it to the house, and in the presence of Reynolds read it to the testator. When he read the 6th clause' he asked who was the beneficiary, and the deceased replied, pointing to Reynolds, “He knows. * * * He will carry out my instructions, he will do it.” Reynolds does not appeal.

It is contended that the case at bar is controlled by the rule that a testamentary disposition which is so indefinite that the intention of the testator cannot be ascertained from the language of the instrument is void and cannot be made valid by any oral testimony or by any written instrument which is not of a probative character, and that for that reason the trust in the will under consideration fails and as to the property included in the 6th subdivision of the will the deceased died intestate. The answer to this contention is that the trust created by the will is constructive, arising by implication of law, to carry into effect the expressed intention of the testator and promise of the legatee, which induced the making of the will, and equity will intervene, even in the absence of fraud, when it is necessary to carry out and effectuate the intention of the testator. (Jay v. Lee, 41 Misc. Rep. 13; Amherst College v. Ritch, 151 N. Y. 282; Matter of O’Hara, 95 id. 403, which recognized the rule, but denied its enforcement because the trust attempted to be created violated the statute against perpetuity; Ahrens v. Jones, 169 N. Y. 555, 561; Rutherfurd v. Carpenter, 134 App. Div. 881, 888; Golland v. Golland, 84 Misc. Rep. 299; Erdman v. Meyer, 52 id. 256.)

The trust is perfect and complete, with the exception that it does not name the beneficiaries. This does not invalidate the trust. As was said in Jay v. Lee (supra): “The designation here is of persons whose names the testator had given to the trustees before making her will. So long as' the fact exists that she gave them the names, it does not matter whether it was done orally or in writing. * * * There seems to he no doubt that evidence dehors the will may be resorted to to identify the beneficiaries designated by the will. It is true that a bequest can only be made by a will. But the bequest here is made by the will, i. e., to the trustees. The evidence dehors is not to make a bequest, but to ascertain and identify the beneficiaries designated by the trust clause of the will.” This rule of law is supported by decisions in many other jurisdictions, among others the following: Curdy v. Berton (79 Cal. 420; 5 L. R. A. 189); Matter of Fleetwood, Sidgreaves v. Brewer (L. R. 15 Ch. Div. 594); Pring v. Pring (2 Vern. 99); Matter of Spencer’s Will (57 L. T. [N. S.] 519); Podmore v. Gunning (7 Sim. 644); Attorney-General v. Dillon (13 Ir. Ch. 127); Irvine v. Sullivan (L. R. 8 Eq. 673).

Evidence dehors the will was competent to establish that the plaintiffs were the beneficiaries named and intended by the testator as the recipients of his bounty, and this being so, the trust is valid and enforcible in equity. The cases cited by the appellants to sustain their contention upon this point differ in their material facts from those presented by the case at bar and are not authorities which apply to or control the disposition of this appeal. The will was construed by the surrogate under the provisions of section 2624 of the Code of Civil Procedure when offered for probate, all of the heirs and next of kin having been cited, and its 6th subdivision was decreed void, and it was decided that as to the personal property included in that subdivision the testator died intestate, and the same should be distributed under and in accordance with the provisions of the Statute of Distribution. It is now contended that such adjudication is conclusive upon the plaintiffs and res adjudicata upon the issues of fact and questions of law presented by this action. The court at Special Term overruled this contention upon the authority of Fair-child v. Edson (154 N. Y. 199), and he was clearly right.

This is not an action to construe the will, but one to declare and enforce a trust created by it. The will is not assailed. The question presented now was not presented to the learned surrogate, who at the time of the probate was without equitable jurisdiction. The only questions within his jurisdiction were the testamentary capacity of the deceased and undue or improper influences exerted over and upon him. While it is true that, as an incident of the probate, he could construe any part of the will if the parties so desired, his consideration was limited by statute and did not include equitable operation. The distinction between the questions raised in the two classes of cases is considered and explained in Edson v. Bartow (10 App. Div. 104, 108; affd., 154 N. Y. 199), and in Matter of Keleman (126 id. 73). In Matter of O’Hara (supra) the question was whether an adjudication by a surrogate admitting a will to probate and decreeing its provisions valid was a bar to an action to annul the bequest or establish a trust which, failing as to the intended beneficiaries, should benefit those who would otherwise have taken by descent or distribution. The adjudication of the surrogate was that the trust was invalid because of its violation of the statute suspending the power of alienation. (See Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 11.) As I have said, no exceptions were filed, and the exceptions taken on the trial are not argued. I have considered them, however, and find no prejudicial errors.

I advise, therefore, that the judgment be affirmed, with costs.

Jenks, P. J., Burr and Thomas, JJ., concurred; Staple-ton, J., not voting.

Judgment affirmed, with costs. 
      
       Now Code Civ. Proc. § 2615, as amd. by Laws of 1914, chap. 443.— [Rep.
     
      
       See Decedent Estate Law (Consol. Laws, chap. 13; Laws of 1909, chap. 18). § 98, as amd.— [Rep.
     