
    Ferdinand Brooks, Pl’ff, v. John T. Terry et al., Ex’rs, Def’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April 17, 1891.)
    
    1. "Will—Trust by implication.
    A testator gave his wife the use, interest, income and profit of all his estate, real and personal, while she remained his _ widow, and then appointed his wife and her brother “trustees of the said legacy to my wife.” He directed the trustees “ to loan the same on bond and mortgage,” and to pay over to his wife the net income. He gave his trustees power of • sale, and directed that the provisions for the wife_ be in lieu of dower. Held, that, by implication, a trust in favor of the wife was created in both the real and personal estate.
    
      3. Executors and administrators—Trustees—Deed.
    Where, under the above will and the power of sale therein contained, the real estate of the testator is conveyed, the conveyance should he by the executors in their capacity of trustees, and not otherwise.
    Case agreed" upon and submitted under § 1279 of the Code of Civil Procedure.
    
      Townsend & Mahan, for pl’ff; Edmund R. Terry, for def’ts.
   Daniels, J.

The defendants, as executor and executrix of the estate of Edmund Terry, deceased, entered into an agreement with the plaintiff to sell and convey to him a parcel of land situated on the westerly side of Ninth avenue, near Fortieth street, in the city of New York. The land was part of the estate of the testator, and at the time finally appointed for the completion of the agreement they tendered a deed to him for the conveyance of the land, which was executed by them only as executors. The deed was declined by the plaintiff, and this case has been submitted to obtain the determination of this court upon the point whether it was sufficient to convey the title to him.

After directing the payment of the testator’s debts, he gave and bequeathed to his wife “ the use, interest, income and profit of and from all of my real and personal estate, of every name and nature whatsoever and wheresoever situated, which I may have or of which I may be possessed at the time of my decease, so long as she shall continue to be my widow, to be appropriated by her to her support and the maintenance and education of my children, and upon her marriage or death, whichever shall first happen, all said property is to go to my children as herein provided, and I hereby constitute and appoint my wife Anna and my brother, John T. Terry, trustees of the said legacy to my said wife, and they are hereby instructed to loan the same on bond and mortgage upon real estate of at least double the value of the amount loaned, or invest in securities regarded as equally safe, but in no case in speculative securities, so-called or considered, or to let the same remain invested as they find the same at the time of my decease, if they shall think best so to do, and pay over to her, my said wife, the net income after deducting charges and incidental expenses, and I give my said trustees joint power to sell or dispose of any or all of said real or personal property at public or private sale at such time or times and upon such terms and in such manner as to them shall seem meet. This provision for my said wife to be in lieu of dower.”

And it is upon the construction which this paragraph should receive that the disposition of the controversy must depend. A trust in favor of the widow for the benefit of herself and the children was not expressly created by it, but that was not necessary, for if, by clear implication, the intention to provide a trust for her and their benefit has been disclosed, that will be sufficient to maintain it. Morse v. Morse, 85 N. Y., 53 ; Toronto Trust Co. v. Chicago, etc., R. R. Co., 123 id., 37; 33 N. Y. State Rep., 78. And that such an intention has been embodied in this part of the will is supported by the directions contained in it. For while the testator has given to his widow the use, interest, income and profit of his estate during her life, or as long as she shall remain his widow, he has directed that to be provided through the intervention of the trustees of his estate. They have been appointed trustees- of the beneficial interest given to her, and which he has denominated her legacy. And to secure to her the income, they have been directed to loan the money of the estate upon bond and mortgage, and to pay over to her the income, after deducting the charges-and incidental, expenses. And to promote that end, power has been given to them to sell and dispose of any, or all, of his real estate. It is not to be disguised that his will has been awkwardly framed in this respect. But what he seems to have intended was that his widow should have- the income and proceeds of his estate for these objects, after deducting the charges and expenses of its management, and this- income and proceeds are what he intended should be understood as her legacy. And of that the executors were appointed trustees, with, directions to pay the amount realized to her. It is true that he has not by apt word's included the proceeds of the real estate in this- direction, but as its use, as well as the income, interest and profit, have all been included in the words “ said legacy)” it is to be fairly inferred that, he designed that it should be brought under the management of the trustees, substantially in the same manner as the- funds, they have been directed, to loan. And this is further confirmed by the power of sale, which, has- been delegated alone to the truste.es-of this legacy. And all the directions intended for their observance are consistent with no other construction-than that he intended to create a trust for the benefit of his widow and children, through which the. interest, income and profits of the estate should be received by the executors as trustees, and paid over to her, after deducting the expenses and charges incurred in its management, and that the power of sale was given to advance that object. This certainly was the intention as to the funds which were to be loaned on bond and mortgage, and power was given to convert the real estate into money, and loan it out in the same manner.

There was no direction for any separation of the real from the personal estate in the management. But the intention to vest all alike in the trustees is evinced by declaring them trustees of her legacy, which included the use, interest, income and profit of the estate as an entirety. It was all in this manner brought under their control, and equally for her and their benefit. And that benefit could be no otherwise effectually secured than to devote to her this income of all the testator’s property. And that this complete degree of control was intended appears further from the next paragraph of the will directing that:

“ Notwithstanding the above provisions, it is my will that my said trustees may and they are hereby directed and ordered to make a payment of not exceeding five thousand ($5,000) dollars to either of my said children by way of advancement if at any time it shall be the opinion of my said wife that the well being or interest of either of. my said children shall require it, and the amount of such payment with interest from the time of payment shall be charged to such child or children in the final distribution of my estate, to take place on the marriage or death of said wife, as herein provided.”

But however the conclusion may be regarded that a trust in the entire estate was created, there can be no room for doubt that this trust did exist over the funds to be loaned on bond and mortgage. And the executors were made trustees over that part of the property. And it was in their capacity of trustees that they were empowered to sell the real estate and convert it into money. And that, under the language of the statute, as the authorities have construed it, was a valid power of sale. This was fully conceded in Chamberlain v. Taylor, 105 N. Y., 185, 192; 7 N. Y. State Rep., 517. What that case has decided is that such a power was not a trust, as express trusts have been declared and provided, but that it was a power in trust. And the reason why the plaintiffs in that action could not maintain it was that they ■did not become vested with the title of the land in question, for the sole reason that no other than a power had been created, upon the effect of which unexecuted an action of ejectment could not be maintained. That the power could be lawfully exercised was not denied, but on the contrary it was assumed that it could be, and the provisions defining powers have certainly provided that it could be done.

But whether there was a trust lawfully extended over the real estate, or whether it was confined to the funds of the estate, the result must be the same, for the power was delegated to the executors as trustees, and not otherwise. And to lawfully execute it they were required to act in that capacity. They did not so .act, but executed the deed intended to convey the title to the plaintiff only as executors. That was inoperative and was not aided by the additional deed executed by the widow, whose sole •object was to release any claim she might be at liberty to assert ;as doweress.

The plaintiff was not bound by the contract with him to accept these deeds ; what he was entitled to was a deed conveying" the title to the land, and that deed was riot offered to him by the defendants. Judgment should, therefore, be pronounced in his favor, that the defendants as trustees convey this land to him, ■or in default thereof pay him the sum of $500 received by them from him, with the interest thereon, and the expenses incurred in the examination of the title, and also pay to him the costs of this proceeding.

Van Brent, P. J., concurs.  