
    Lena H. Ogilby and Anne H. Ogilby, Respondents, v. Chandlee H. Hickok, Appellant.
    First Department,
    April 7, 1911.
    Trust — right of person having beneficial interest in lands to act as trustee — court — power to appoint trustee — suspension of power of alienation — partition — defenses — agreement that land shall be held in trust.
    While the same person cannot at the same time be trustee and beneficiary of the same interest, one having with others a one-third interest in lands may hold the same on a trust to manage two-thirds of the property for the other beneficiaries, even though the trust covers the whole estate for the purpose of management and disposition.
    Even if such trustee be disqualified from acting, a trust otherwise valid created by deed does not fail, but vests in the Supreme Court which may appoint its agent to carry out the agreement.
    A deed placing lands in trust until such time as the survivor of two beneficiaries in being at the time of the creation of the trust shall die does not violate the statute against perpetuities, even though it provide that at the termination of the trust the lands shall be divided among the heirs of three beneficiaries named.
    Where a trust deed requires the trustee to pay the net rents and profits • of lands to beneficiaries monthly, he is, by implication, given power to collect the rents and profits and apply the same, and the trust is not invalid because of lack of power to collect.
    It is a good defense to an action for partition to set out a conveyance to the defendant whereby he holds the lands under a valid trust until such time as both of the plaintiffs shall die.
    Appeal "by the defendant, Chandlee H. Hickok, from an ■ interlocutory judgment of the Supreme Court in favor of the plaintiffs,- entered in the office of the clerk of the county of New York on the 19th day of December, 1910, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiffs’ demurrer to a separate defense set forth in the defendant’s answer.
    
      Ralph Polk Buell, for the appellant.
    
      Arthur O. Townsend, for the respondents.
   McLaughlin, J. :

The complaint alleges that the mother of the plaintiffs and defendant, in 1905, died intestate, leaving as her sole heirs at law the parties to this action; that at the time of her death she was seized and possessed of certain real estate situate in the city of ¡New York; that prior to her death, without any consideration, she conveyed the real estate to the defendant upon his promise to hold it for her sole use and benefit and to reconvey to her, or her heirs, whenever she or they so requested; that the deed of conveyance to the defendant was recorded, and some time thereafter he, at her request, reconveyed the property to her, but that the deed of conveyance ■ was never recorded and has been lost; the judgment demanded is that it. be decreed that each of the plaintiffs and defendant is seized and possessed, in fee simple, subject to. a mortgage now on the premises, of an equal undivided third párt thereof; that the

■ premises are so situate that, an actual partition cannot be had; that' for that reason the premises be sold and the proceeds derived therefrom paid to the parties according to their respective rights therein; that the defendant account for the rents-received, and whatever amount may be found due, together with the costs of the action, be deducted from his share. ..

. As- a separate defense the defendant alleged that after the death of his mother a dispute arose between the plaintiffs and defendant concerning the premises in .question, and in order ■ to settle the same, amicably adjust the claims of the parties and preserve' the defendant’s rights in the premises, they entered into an agreement in writing, which is ■ annexed, to and made a part of such defense. This agreement recités: “In consideration of the love and affection which the said Chandlee H. Hickok bears to his said sisters, and of the sum of one dollar to him in hand paid by each of said sisters, the receipt whereof is hereby acknowledged, and in consideration of the moral obligation, recognized by him to them, and in further consideration of each. of his said sisters releasing to him * * * all claims, legal and equitable, which each of said sisters might have upon the property hereinafter described, which she does hereby so release, the said Chandlee H. Hickok agrees to hold the premises known as number 43 East Fifty-ninth Street, Manhattan, ¡¡New York City, heretofore conveyed to him by his mother, in trust for himself and each of said sisters and their respective heirs, in equal shares, and that he will upon demand execute and have recorded a deed in proper form showing the interest of his said sisters in said property. Upon the written demand of any two parties hereto, or their legal representatives, the trustee shall be required to sell said premises for sixty thousand dollars ($60,000) or upwards, at any time, and said trustee shall have power to sell the same at a less price upon the written consent of all of the "parties hereto, or their legal representatives. * * In case of the sale of said premises, the proceeds of said sale shall be divided into three equal parts, and shall be paid to each of the respective parties hereto. * * * Upon the death of the survivor of said Lena H. Ogilby and Anne H. Ogilby, this trust shall terminate and the property shall be divided, or the fund from the sale thereof distributed, among the heirs-at-law of the three beneficiaries above named. For the «purpose of distribution the interests of said three beneficiaries shall be considered as vesting at the date of this agreement.” The agreement also contains a provision as to the rents and profits derived from the premises, and a division of the same equally among all of the parties thereto.

The plaintiffs demurred to this defense upon the ground that the same was insufficient in law upon the face thereof. The demurrer was sustained, and from an interlocutory judgment to that effect the defendant appeals.

The demurrer was sustained upon the ground, as appears from the opinion delivered by the learned justice sitting at Special Term, that the agreement was ineffectual for any purpose because it made the defendant a trustee for his own benefit. I do not think the agreement is subject to this criticism. The fact that the defendant has a beneficial interest in the real estate in question does not prevent his taking charge of the same for himself and others having a like interest therein. Of course the same person cannot be, at the same time, trustee and beneficiary of the same interest. (Woodward v. James, 115 N. Y. 346.) Here the defendant is to take arid manage the property, at least to the extent of two-thirds of it, not for himself but for the benefit of the plaintiffs. He can, therefore, act as trustee for them, and that trust is over the whole estate for the purpose of its management and disposition. And if it were held that he was disqualified for any reason from acting, that would not destroy the agreement, because the trust thereby created would then vest in the Supreme Court, which would appoint its agent to carry out the same. (Rankine v. Metzger, 69 App. Div. 264; affd., 174 N. Y. 540; Losey v. Stanley, 147 id. 560; Rogers v. Rogers, 111 id. 228; People ex rel. Collins v. Donohue, 70 Hun, 317.)

It is also urged that the trust is invalid. because iff vio- ■ lates the law against perpetuities, but the agreement expressly • states that the trust is to terminate upon the death of the survivor of the plaintiffs, both of whom were in being at the time the agreement was made. It is true that provision is made for distributing the trust property among “ the heirs at law of the three beneficiaries,'” but this provision must be construed in con- • nection with the one above referred to, which terminates the trust upon .the death of the survivor, of the plaintiffs. The further suggestion is made that a valid trust was not created because defendant was not given the power to collect the rents and profits and apply the same. A fair construction of the agreement, I think, clothes him with that power. It provides that u the trustee shall divide the net rents and profits * * ' * as-they accrue, equally between the three beneficiaries and pay the same monthly to each * * This he could not do unless he had the power to collect.

I am of the opinion that the agreement constitutes a good defense to this action, and this whether it be construed as creating a trust for the management of the property until the death of the survivor of the plaintiffs (Harris v. Larkins, 22 Hun, 488), or as an' agreement not to partition or' sell, except under certain conditions. A consideration of the whole agreement indicates that each party to it intended to bind himself to the plan expressed for the future management and disposition of the property. Their minds met on that subject, and what fhey intended to accomplish is clearly expressed. The property was not to be-sold without the consent of all, unless $60,000 or upwards could be obtained for it, and then only when at least two of the parties so desired. It could not be sold for any less price except upon the consent of all the parties. These conditions were to be maintained until the death of both the plaintiffs; in the meantime the rents and profits were to be divided equally amono- all of them. The consideration for the promise of each party was the promise of the other. The agreement has all the elements of a valid contract and should be enforced, and if so a sale in partition cannot be had.

The interlocutory judgment appealed from is, therefore, reversed, with costs, and the demurrer overruled, with costs, with leave to plaintiffs to withdraw demurrer upon payment of costs in this court and in the court below.

Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred.

Judgment reversed, with costs, and demurrer overruled, with costs, with leave to plaintiffs to withdraw demurrer on payment of costs.  