
    Edwin B. Meeks, Ex’r and Trustee, Resp’t, v. The Metropolitan Elevated Railroad Co. et al., App’lts.
    
      (New York Superior Court,
    
    
      General Term,
    
    
      Filed December 1, 1890.)
    
    Trespass—When trustee mat maintain.
    The will of plaintiff’s testator devised the premises in question to his executors in trust for the life of his wife, and at her death directed that it be sold and the proceeds divided and in the meantime the executors were authorized to receive the profits. Held, that plaintiff, as surviving executor and trustee, was entitled to possession of the property and to the rents and income thereof, and could maintain an action to restrain a trespass and for damages.
    Appeal from a judgment entered on the decision of this court at an equity term.
    The plaintiff brings this action for an injunction against the defendants to perpetually restrain and enjoin the further construction, maintenance and operation of their elevated railroad along and to the west of plaintiff’s premises, No. 30 Vesey street, and that the structure be removed, and that plaintiff have judgment for injuries to said premises in the past, and, if the court permit the continuance of the road, the defendants shall be adjudged to pay damages for the property and rights of property taken. The judgment awarded the plaintiff damages for past injury at the rate of $1,200 per year, which, with costs, amounted to $11,762.59. The judgment further gave the plaintiff the injunction as asked for, but stayed the enforcement of the same for ninety days, and permitted the defendants in the meantime to purchase the property and rights of property on payment of $15,000.
    Plaintiff1 is the surviving executor of Joseph W. Meeks, who died seized of said property, and who devised said premises with others to his executors in trust during the life of his wife, and directed that on her death the same be sold and the- proceeds divided among his heirs.
    
      Davies & Bapallo, for app’lts; Dugene D. BTawJcins, for resp’t.
   Ingrai-iam,. J.

The complaint alleges that one Joseph W. Meeks died seized of certain property therein described, leaving a last will and. testament whereby the said property was devised to the plaintiff in trust for the purposes and objects of the will, and that by virtue thereof plaintiff became the lawful owner of said property with all the rights, easements and appurtenances thereto belonging, and the owner of any and all causes of action for damages thereto.

These allegations are denied by the answer. The will of said Joseph W. Meeks was introduced in evidence, and to entitle plaintiff to judgment it must appear that the title to the property appropriated became vested in the plaintiff as trustee, or that he was entitled to the possession and enjoyment of such property.

If there is any intention clearly expressed in the will, it is that the testator’s property shall not descend to his heirs at law.

The executors are directed to sell the property and receive and distribute the proceeds thereof, and until the property is sold the executors are to receive the rents and profits, and to pay insurance, taxes and assessments. Under no circumstances can the heirs at law as such be entitled either to the proceeds of the sale of the property or to the rents and profits realized therefrom during the period that should elapse between the time of the death of the testator and the time of such sale.

If the defendant had taken the ¡property under the right of eminent domain, it is the plaintiff as trustee who would have been entitled to the amount required to be paid for such property, and until the property was sold the plaintiff as trustee would be entitled to the possession of the property, and to the rents and income realized from the use and occupation thereof.

It is the plaintiff as trustee, therefore, who could maintain an action for the use and occupation of the property and for an injunction to restrain a trespass upon it. A conveyance by the trustee would convey a good title to the defendant under power of sale contained in the will, and the heirs at law are not necessary parties either to this action to restrain a trespass thereupon or to recover possession thereof, or to a conveyance of the property so as to vest a good title in the defendant.

ít is not therefore necessary to decide in this action whether the title to the real estate vested in the plaintiff as trustee under the will, but if it were necessary to determine that question I think that under the rule stated in Robert v. Corning, 89 N. Y., 225, the executor took the legal title to the property.

Andrews, J.„ speaking for the court in that case, said “ The testator contemplated that the real estate might not be sold for some time after his death. * * * The presence of the legal estate in the trustees pending a sale, if not absolutely necessary to enable them to perform the duty imposed upon them to divide the net income and profits, is a convenient and natural arrangement and the vesting of the legal estate in the trustee, by implication would not as we construe the will defeat or disturb any of its provisions but would be in harmony with its scheme and dispositions. * * * There are many authorities tending to sustain the proposition that a trust will be implied when the duties imposed are active and render the possession of the legal estate in the executors convenient and reasonably necessary, although it may not be absolutely necessary to accomplish the purposes of the will and when such implication would not defeat but would sustain the disposition of the will.”

These remarks apply to the will in question. There is I think a clear intention expressed in the will that the executors should take the title to the real estate, collect the rents and profits until it should be sold, and then receive the proceeds of the sale and divide it among the legatees. An express trust may be created to sell lands for the benefit of legatees and to receive the rents and profits of lands and apply them to the use of any person during the life of such person, and such a trust is created by the will as thus construed.

Henderson v. Henderson, 113 N. Y., 1; 21 N. Y. State Rep., 800, does .not apply, for there the direction to the executors is to partition, not to sell, and the will gives the share set off to each child by the executors under the power conferred to the child to whom it is allotted.

It was held that no express trust was created because it was not within the provisions' of the statute; that the main purpose of the testator was to divide the residuary estate among his children and the power of sale was given for the better execution of that purpose, but in this case the trust will be within the provisions of the statute as before stated.

The other questions presented on this appeal have all been decided by this court adversely to the appellants and require no special mention.

Judgment should be affirmed, with costs.

Freedman, J., concurs.  