
    Julius T. Asch et al., Executors, etc., Resp’ts, v. Estelle Asch, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed April 16, 1889.)
    
    1. Wills—When equitable conversion implied.
    A testator devised and bequeathed all of his real and personal property, after the payment of debts and funeral expenses, to his executors in trust to invest and keep invested the proceeds thereof in United States bonds or in the bonds of the state or city of -Hew York, or in bonds secured by first mortgage on real estate in the city of New York, and to pay the interest and income to his widow during her life, and after the death of Ms wife he devised and bequeathed the whole of Ms said estate to his surviving children, share and share alike. At the testator’s death Ms wife and two children survived him. One of the children died subsequently and before the commencement of this action. Held, that the necessity of a conversion to accomplish the purpose expressed in the will is equivalent to an imperative dire. tian to convert, and effects an equitable conversion of the property.
    3. Same—Dower—When widow must elect between provision contained IN WILL AND HER DOWER.
    
      Held, that the provision made in behalf of the widow of the testator required her to elect between accepting what had been provided for her by the will, or rejecting it, and taking dower in the estate. Vernon v. Vernon, 53 N. Y., 351; KonmXinka v. Schlegel, 104 id., 135; Matter of Zahrt, 94 id., 605, followed.
    3. Same—Estate acquired on death of remainderman by life tenant AND HEIR OF REMAINDERMAN.
    
      Held, that the widow’s interest in the trust estate did not merge in the-legal estate which she acquired by the death of her daughter, and that by such death she acquired a future estate dependent upon the precedent estate, which she could devise but could not enjoy in possession.
    Appeal from a judgment of the general term, supreme-court, first department, affirming a judgment in favor of the plaintiffs, entered on a trial at special term.
    
      Joseph Fettretch, for app’lt; Simpson & Werner, for resp’ts.
    
      
       Affirming 13 N. Y. State Rep., 419.
    
   Ruger, Ch. J.

—This- is an action between the several executors of the will of Jacob Asch and his widow and legatees to obtain a construction thereof by the court. The will, in substance, devised and bequeathed all of his real and personal property, after the payment of debts and funeral expenses, to his executors in trust, to invest and keep invested the proceeds thereof in United States bonds, or in bonds of the state or city of New York, or in bonds secured by first mortgage on real estate in the city of New York, and to pay the interest or income of a certain small part thereof, determinable by the gross value of his estate, to his mother during her life, and to pay to his widow during lier life the interest and income upon all the rest, residue and remainder of his estate, including that bequeathed to his mother, upon her death, and after the death of his wife, remainder over to his surviving children, share and share alike. At the testator’s death, his wife and two children survived him. One of the children died after the testator and before the commencement of this action.

The widow now claims the benefit of the provision made for her by the will, and also dower in the real estate owned by the testator at his death. She also claims that upon the death of her daughter she became entitled, as next of kin, to one-half of the remainder provided for each child, and to an absolute interest in possession of one-quarter of the estate, by reason of an alleged merger of her legal and equitable interest therein.

These questions are to be determined from the intentions of the testator, as indicated by the language of the will and the circumstances surrounding its execution. The general scheme of the will seems to be antagonistic to the claims of the widow. The creation of a trust estate mainly for the benefit of his wife, which was to endure so long as she lived, is inconsistent with an implied right on her part to manage and control any part of the property devised. The testator excluded his wife from the control of his per.sonal estate, and the reason influencing this provision would seem to indicate a similar intention in regard to his real estate. The circumstance that the testator substantially made his wife the sole beneficiary of the trust, thus giving her the income of all of his estate, gives force to the implication 'that he did not suppose she would also take dower.

That the testator intended the conversion- of all of his property into money and its investment in interest bearing securities, which should remain under the exclusive management and control of his trustees during the life of the widow, • .is clearly to be implied from the purposes. expressed in the will. Those purposes can be effected only in the mode directed, and the legal estate given to the trustees must necessarily continue so long as the objects of the trust remain unperformed. The necessity of a conversion to accomplish other purposes is equivalent to an imperative direction to convert and effect an equitable conversion of the property. Hobson v. Hale, 95 N. Y., 588; Chamberlain v. Taylor, 105 id., 185; 7 N. Y. State Rep., 517. This conversion was essential in order to determine the amount of income to which the testator’s wife and mother should be respectively entitled, and is inconsistent with the existence of a life estate in any part of the real property in the wife. The absolute power of sale conferred upon the executors was evidently not intended to be limited or impaired by an inability on their part to convey a good title to the whole of such real estate, and the purposes of the will required such sale to be made unhampered by obstructions which might be interposed by conflicting interests in the property.

Although there is no express language providing that the bequest to the widow shall be in lieu of dower, yet where there is a manifest incompatibility between such provision and dower, it is held that she cannot take both and is put to her election between them. Vernon v. Vernon, 53 N. Y., 351; Konvalinka v. Schlegel, 104 N. Y., 125; 5 N. Y. State Rep., 562; Matter of Zahrt, 94 N. Y., 605. To hold otherwise would impair the general scheme of the will and cause an incompatibility of provisions which should preclude the widow from taking dower.

It is also quite clear that the widow’s interest in the trust estate did not merge in the legal estate which she acquired by the death of her daughter. In equity the union of legal and equitable estates in the same person does not effect a merger unless such was the intention of the parties, and justice and equity require it. Smith v. Roberts, 91 N. Y., 470; Champney v. Coope, 32 id., 543.

Merger is accomplished in law when two or more estates in the same property unite in the same person, and when such estates comprise the whole legal and equitable interest in such property the person holding them becomes the absolute owner. Mickles v. Townsend, 18 N. Y., 575; Bouvier’s Institutes, §§ 1990, 1991.

Merger requires the existence of two estates, a greater and lesser, and upon merger taking place -the lesser estate is said to be extinguished and absorbed in the greater, but this cannot take place where there is an intermediate estate. Merger takes place by virtue of unity of seizin. Mickles v. Townsend, (supra).

There could, therefore, be no merger here because of the existence of a valid trust, with the right to the possession of the trust fund, for the purposes of management and control, during the life of its beneficiary.. The trust must exist so long as the widow lives, and during her life there could be no merger. She has no estate in the subject of the trust.. She had an interest in it as beneficiary, but it was essential to the existence of that interest that the trust estate should be maintained. The destruction of the trust would necessarily terminate her interest therein, and there would then be nothing to merge.

As was held in Pauling v. Hardy (Skinner, 62): “Where an estate and a mere right in the land, not an estate, meet in the same person, the merger will not take place, because such an interest is not an estate.” ' A merger cannot take place except by the extinguishment of the lesser estate, and in this case to extinguish the lesser interest would leave the widow in possession of a remainder only, which could take effect in possession only upon her death. Bouvier’s Institutes, § 1991.

The provisions of the revised statutes indicating the circumstances under which the union of legal and equitable estates extinguishes the latter, are, in principle, equally applicable to trusts of personal property. Section 47 of the chapter on uses and trusts, as was said by the chancellor in the Matter of DeKay (4 Paige, 403), provides that every person who is entitled to the actual possession of lands and to the receipt* of the rents and profits thereof in law or in equity, is deemed to have a legal estate therein, commensurate with his beneficial interest in the premises, except in those cases where the estate of the trustee is connected with some power of actual disposition or management.

Here the widow is not only not entitled to the possession of the trust fund, but there is also a valid trust imposing upon its trustees the duties of actual .disposition and management which will continue as long as the fund exists and the widow lives.

.It is argued by the appellant that upon the death of both children the widow would become, as heir to her children and the sole beneficiary in the trust, entitled to the immediate possession, and control of the trust fund. 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. The necessity for the maintenance of the trust would remain in full force, notwithstanding the widow’s succession to the rights ■<o£ her children. By such acquisition she would acquire a future estate, dependent upon the precedent estate of the trustees, but which she cannot enjoy in possession. She might devise it but cannot possess an estate conditioned upon her own death.

In view of the full and satisfactory opinions of the courts below, we have already extended our discussion of the case beyond the limits which necessity required and those which we intended.

The judgment appealed from should be affirmed, with costs of all parties to be paid from the estate.

All concur.  