
    Mary Jane Ward, Individually and as Ex’rx, Resp’t, v. De Witt Clinton Ward, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed March 15, 1887.)
    
    1. Will—Construction—Executors when deemed trustees.
    Where testator by his will appointed his wife executrix, and his brother executor, and by a codicil says: “I do nominate and appoint 'them’ as-my trustees for the purpose of carrying out any of its provisions,” and it would be difficult, if not impossible to carry into effect the plan devised by the testator, except through the intervention of some third person who might collect, manage and retain his property until the time arrived for final distribution, and the executors are to pay debts and disburse the income with power to change investments, etc. Held, that the executors, will be deemed trustees for the performance of their duties to the same extent as though declared to be so by the most explicit language.
    3. Same—Suspension of power of alienation.
    The will contained the following clause. “And upon my wife’s decease, the use and income of all my estate, subject to the above provisions, to my two sons, share and share alike; and upon the decease of my sons, I give, -bequeath and devise to their heirs, should both have heirs, their father's portion only, share and share alike; and in case of one having no heirs, then to the heirs of the other, share and share alike; and if both should have no heirs then as the law directs. Held, that this was a suspension of the power of alienation for more than two lives, and thus void.
    Appeal from judgment of supreme court, general term, first department, affirming judgment of court below, with costs to all parties out of the fund.
    The action is brought for the purpose of obtaining the direction of the court in regard to certain questions arising on the will of Mortimer Ward, deceased. The plaintiff is his widow and the executrix of the will, and in both capacities interested in its construction. The defendants are De Witt Clinton Ward, executor and brother of the deceased, Walter Edmund Ward and De Witt Clinton Ward, his only children, and Abby P. Ward, the mother, Sarah. Brindley, the aunt, and Henrietta B. Ward, the sister, of the testator, and beneficiaries under his will.
    The defendants appeared and answered separately. A trial was had at the special term, and from the judgment there DeWitt Clinton Ward, the son, alone appealed to the general term, and from its judgment he appeals to this court.
    The following is a copy of the will and codicil. The will bore date November 20, 1870, the codicil March 27, 1882: “First. I commend my immortal being to Him who gave it, and my body to the earth, to be buried, with as little expense or ostentation as maybe necessary, by my executors hereinafter named; and as to my Worldly estate and all the property, real and personal or mixed, of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease, I devise, bequeath, and dispose thereof in the manner following, to wit:
    
      “My will is that all my past debts and funeral charges shall, by my executors hereinafter named, be paid out of my estate as soon after my decease as shall by them be found convenient. I give and bequeath unto my beloved wife, Mary Jane, all my household furniture, and to her the use and income of all my real and personal estate during her natural life, should she not marry again, subject to the necessary expenses of living, which includes everything that may be required for my two sons, DeWitt Clinton and Walter Edmund, until they arrived at the age of twenty-óne years, if it should be necessary, and the necessary expenses for good schooling and a collegiate education, if either or both of them should desire it, without any reference to their intention of following a profession. And further, upon their arriving at the age of twenty-five years, I desire that each should have in real or personal estate equal to $10,000, or instead an equivalent in money of $10,000; and my executors are authorized to dispose of any of my property to pay these legacies. In case I should have other heirs, they are to be treated the same as those mentioned, and share and share alike. And, further, I desire that such sums, from time to time, as may be necessary and deemed advisable, be paid to my mother, Abby P. Ward, my aunt, Sarah Brindley, and my sister, Henrietta B. Ward, should she remain single, that they, or either of them, may not want for the necessaries of life. And, upon my wife’s decease, the use and income of all my estate, subject to the above provisions, to my two sons; share and share alike; and, upon the decease of my sons, I give, bequeath, and devise to their heirs, should both have heirs, their father’s portion only, share and share alike; and, in case of one having no heirs, then to the heirs of the other, share and share alike; and, if both should have no heirs, then as the law directs. And, should my wife marry again, I give and bequeath to her, in lieu of all dower, $10,000 in money, to be paid to her by my executors, hereinafter named, and they are authorized to dispose of any of my property to pay the amount.
    “Should my executors deem it necessary and advisable, for the better security and interest of my estate, to change the investment of my property, they may dispose of all or any part of it, and invest the proceeds in United States government, New York state, or New York city, bonds, registered, or on good bond and mortgage, or New York city or Brooklyn city improved property, in sums of not more than $10,000 each, upon property at a moderate value worth at least double the amount.
    “ I hereby appoint my beloved wife, Mary Jane, executrix, and by brother, De Witt Clinton Ward, executor, of this, my last will and testament, hereby revoking all former wills by me made, without giving security.”
    This will was dated November 24, 1870; and on March 27, 1882, the the testator duly executed the following codicil thereto:
    “I, Mortimer Ward, the testator named in the above will, do hereby make, publish, and declare the following r codicil thereto: I desire that my sons shall each receive the sum of $10,000, either in property or money, when they arrive at the age of thirty years, instead of twenty-five, as mentioned above. I do nominate and appoint my executors named in the above will as my trustees, for the purpose of carrying out any of its provisions.”
    
      James M. Hunt, for app’lt; George G. Be Witt, Jr., for resp’ts.
    
      
       Modifying and affirming 39 Hun, 658.
    
   Danforth, J.

The testator died in August, 1884, leaving a will and codicil, which were duly admitted to probate as a will of real and personal estate. These, under established rules, are to be taken as one instrument, and construed together as expressing the intent of the testator. If in one, therefore, the omission of certain technical words gives color to the contention of the appellant that no express trust is created, the other declares the design of the testator that the executor and executrix shall take the residuary estate for the object declared and set forth in the will, and it is sufficient if from the two instruments it can be implied that his intent was to establish a trust. Morse v. Morse, 85 N. Y., 53.

By the will he appoints his wife executrix, and his brother executor, and by the codicil he says: “Ida nominate and appoint ” them ‘ as my trustees for the purpose of carrying out any of its provisions.” In the first place, it would be difficult, if not impossible, to carry into effect the plan devised by the the testator except through the intervention of some third person who might collect, manage, and retain his property until the time arrived for final distribution. Such functions are imposed on the executors. They are to pay the debts of the testator out of his estate as soon “as shall by them be found convenient.” Each son is to have in property or money $10,000 on arriving at the age of thirty years. It was also the intention of the testator to provide for the support of his mother, his aunt, and his sister out of the property, and that so much as might be necessary should be paid to them for that purpose. To his wife the testator gave all his household furniture, “and the use and income ” of all his real and personal estate “ during her life,” or “until, after” his “ death, she marries;” but in that case, “in lieu of all dower, $10,000 in money to be paid ” by his executors, and they are in terms authorized to dispose of any of his property to pay this sum, or to pay the legacies given to his sons. And although, as we have seen, his wife was to have the income of his estate, the executors are authorized in their discretion “to change the investment of” the testator’s property, or dispose of all or any part of it, “ and invest the proceeds ” in United States government, or New York state, or New York city, bonds, registered, or .on bond and mortgage.

Upon his wife’s decease the testator gives the “ use and income ” of his estate, subject to diminution by the support of his relatives above named, and the' payment, when due, of the legacies to his sons, to those sons, “ share and share alike; and, upon the decease of his sons, to their heirs, should both have heirs, their father’s portion only; and, in case of one having no heirs, then to the heirs of the other, share and share alike; and, if both should have no heirs, then as the law directs.” It is plain, therefore, that the executors are to have the management and direction of and title to the property not specifically bequeathed, until the children attain the age of thirty years, and upon their death only the residue goes to whomsoever shall be entitled to it in remainder. The executors may not only invest, but re-invest; and in whose name, if not their own, shall the government, state, or city securities be registered? They may also sell any part of the estate as in their judgment becomes necessary. They are to divide, therefore they are to receive, the income. By these incidents the case seems to be brought within the rule that when the duties imposed are active, and render the possession of the estate convenient and reasonably necessary, the executors will be deemed trustees for the performance of their duties, to the same extent as though declared to be so by the most explicit language. Tobias v. Ketchum, 32 N. Y., 319; Robert v. Corning, 89 N. Y., 225.

' The remaining question has been presented with much earnestness on the part of the learned counsel for the appellant, and is of greater difficulty. His contention is that the power of alienation of a portion of the estate is illegally suspended for a period beyond two lives, and the argument is placed on words already quoted. As before suggested, the trust created by the testator will continue after the wife’s death and during the lives of the two sons. But upon the death of either, the children of the one dying, if he has any, will be entitled to his share, but, if he has none, then the heirs of his brother will be entitled to it; and, upon the death of that brother leaving heirs, the same re-suit follows. On both dying without heirs, the estate must go where the law directs. It follows that the property cannot be sold except for the purposes of the trust during the life of the widow. That is a suspension for life. It must remain undisposed of during the life of the son first dying, that is, the second life, and still undisposed of during the life of the other son; for the time fixed for distribution is the death of both sons. That makes the third life, and it is clear that the suspension of absolute ownership will or may exceed a longer period than the continuance of two lives. All these fives were in being at the time of the death of the testator, and must terminate, not only as a condition precedent to the taking effect of the gift over, but before it can be known who wrill be entitled ultimately to take. This limitation is too remote, and renders the disposition void. 1 Rev. St. 773, section 1; Knox v. Jones, 47 N. Y., 389; Colton v. Fox, 67 N. Y., 348; Smith v. Edwards, 88 N. Y., 92; Bailey v. Bailey, 97 N. Y., 460.

In Monarque v. Monarque (80 N. Y., 320), the widow had the first fife-estate, and at her death the four daughters of the testator took for fife, and upon the death of any daughter the fee of one-fourth part at once vested in her children. In Wells v. Wells (88 N. Y., 323), there was a similar provision, first for the wife, then for the testator’s children; but it was also provided that, upon the death of either child leaving issue, such issue or next of kin should take his proportion. In neither case was the final disposition of the estate suspended beyond the first and second fife; for, that ending, the share of the child dying was at once liberated from the trust. But in the case before us it is otherwise. The testator provides for the devolution of the share of the child dying to the heirs of that child, if any, but if not it is still to be held by the trustee for the children of the other son; and until it is seen that neither has issue does the trust terminate.

Another question is presented by the pleadings, and was considered by the court below—that relating to the mother, aunt and sister of the testator, all beneficiaries under the will; but we understand from concessions of counsel on the argument of this appeal that it was no longer deemed material by either party. Other questions raised by the pleadings, and answered by the court below, become material by reason of the death of the the testator’s widow unmarried, and still others are not presented on this appeal; but on the question argued we think a valid trust was created by the testator, to continue during the life or widowhood of the plaintiff, Mary Jane Ward (and, she having died, that question, even, becomes unimportant); but as to the residuary estate then remaining, it should be divided according to the statute of distributions in cases of intestacy.

The judgment appealed from should be so modified, and, as modified, affirmed; the costs of this appeal to be paid out of the estate.

All concur.  