
    Harlin James Woodward, by Frank E. Smith, his Guardian, App’lt, v. Julia L. James, individually and as Ex’x, et al. Resp’ts and App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 31, 1887.)
    1. Trusts—Ho particular words necessary to create.
    The will of a testator, among other provisions, contained the following, viz.: I give my "x" wife * for her sole use * during her life, etc., first, one-half the income of all his property; second, the use, rental and occupation of residences therein designated. By a subsequent provision, the testator gave the remainder of the income from his property during the life of his wife, after certain payments to his legal heirs, and also gave to his legal heirs the reversion of his property after his wife’s death, directing that any one of them making any attempt to interfere with the enjoyment and management of his estate by his wife should be excluded from sharing in the same. Held, that no particular words were necessary to create a trust by will, so long'as the provisions thereof were of such a character as that, in order to carry them out, the ordinary powers and duties within the Revised Statutes were required.
    ¡3. Same—What will create.
    
      Held, that the will by necessary implication, created a trust in the wife of the testator.
    3. Will—Interpretation of—Construction.
    
      Held, that the collateral relatives were the persons referred to in the will as legal heirs, and took not individually, but in families, or per stirpes, because the testator had not named any of his collateral relatives anywhere in the will, and referred to them in this position in the will in the same way that they would be considered when applying to their rights the statute of descent of this state.
    4. Same—Who not entitled to partition.
    
      Held, that a grand nephew of the testator was not entitled to a partition of the real estate, but was entitled to a share therein as remainder man.
    5. Same—Who not entitled to distributive partition.
    
      Held, that he was not entitled to a share in the personal property, because, though a legal heir, he "was not of the next of kin within the statute of distributions, which prohibits representations among collaterals further removed than the children of brothers and sisters of the decedent.
    6. Same—Prohibition from -interference with enjoyment of estate —What is not within.
    
      He d. that the plaintiff had not by bringing this action, debarred himself from sharing in the property under the prohibitory clause of the will.
    
      Appeal by the plaintiff Harlin James Woodward, and by the defendants Henry A. James, Honorah 0. James,
    Howard ,L. James, Horace E. James, Julia W. Phillips • and Virginia P. Kean, from that portion of the judgment of the special term which decided,
    
      First. That the defendant Julia C. James is entitled to one-half the gross income of the estate.
    
      Second. And that the devisees take per stirpes and not per capita, and,
    
      Third. That the will creates a valid trust in the executrix.
    The testator/left surviving him only his widow, Julia L. James, one brother and two sisters, five nephews, four nieces and the plaintiff herein, who is his grandnephew.
    He left neither father, mother nor descendants.
    The material parts of the will are as follows: “I give and bequeath to my beloved wife, Julia, for her sole use, enjoyment and benefit during her life, without restraint, deduction or interference in any manner whatever, as follows:
    • First. One behalf of the income of all my prqperty of every kind of which I may die possessed.
    
      “Second. The use, enjoyment, rental and occupation of my two residences, one known as Craig Side, in Cold Spring and Phillipstown, New York, and the other known as No. 400 Fifth avenue, New York city.
    “ Third. I give, devise and bequeath absolutely to my said wife all the household furniture, pictures, plate, books, ornaments, horses, carriages, farm implements and property of every description in or upon or pertaining in any manner to the two houses and residences aforesaid. The said devises and bequests to my said wife to be in lieu of dower and right of dower.
    “ I give, devise and bequeath to my legal heirs the remainder of the income from my property during the life of my wife, after the payment and discharge of all taxes and assessments and charges and interest and obligations against my said estate, except as hereinafter provided, in case of interference. I give, devise and bequeath to my legal heirs, except as herein provided otherwise, the reversion and ownership of all my estate and property after the death of my wife, with the reservation, exception and direction that in the event of any of my legal heirs making any attempt, directly or indirectly, in any manner or form to interfere with, or restrain in any manner, my beloved wife from the full enjoyment, use, management, direction and disposition of the property and income of my estate as herein devised, then and and in that event, such one of my legal heirs as shall do or perform or aid or abet the performance of such an act, or cause the same to be done, shall be forever debarred from any part, parcel, interest or ownership or inheritance to any of my property, and be excluded from sharing the same, and the share that would otherwise have gone to him or her shall be divided among the remaining heirs according to law.
    “ I authorize and direct my executrix, in her discretion, to sell and convey such portion of my property as may be requisite or necessary to pay and discharge my just debts and obligations. I constitute and appoint _my_ wife, Julia L. James, my sole executrix, and direct that no bond, obligation or surety be required from her. j
    
      Frank E. Smith, guardian ad litem, for the pl’ff; Robert Mazet, Charles S. Clark and William C. Holbrook, for sundry defendants; Franklin Bartlett, for the defendant Julia L. James.
   Macomber, J.

The principal question is whether or not a trust was created by the will of Frederick P. James. It is observable that no distinct words imposing a trust in the language of the Revised Statutes are used, yet we think the learned judge at the special term was correct in holding that the intention of the testator, as derived from the whole will, and the situation of his property and the relation of his heirs-at-law and next of kin to him, was to create a trust by necessary implication. It is apparent that the prime motive of the testator was to make ample provision for the support and maintainance of his wife.

She was the immediate subject of his bounty. He had no father or mother living and no descendants. His collateral relatives are not shown to have had any particular claim upon his bounty which was not in his mind subordinated to the interest and protection of his wife. He gave one-half of the whole income of his property to her, without restraint, deduction or interference in any manner whatever. He gave her the use and occupation of a city residence and of a country residence, together with the household furniture, plate, books and ornaments, horses and carriages and implements and property of every discription pertaining to such residences which were necessary to a proper maintenance thereof, and, in fine, the testator appears to have had the purpose clearly defined in his mind, as disclosed by the will, to sustain the property, both real and personal, in the hands and under the control and management of his wife, and that there should not be any division thereof among his next of kin, or heirs-at-law until her death. She was authorized to receive the rents, issues and profits of the estate, and, as has already been pointed out, was personally entitled to retain for her own use and purposes, one-half of the gross income. Under these circumstances, there was imparted into the will, by necesary implication, a duty upon the wife as executrix or trustee, to hold the property, collect the income thereof and properly to distribute, after paying all expenses, the other portion, in accordance with the third clause of the will.

It cannot now be successfully contended in this state, that particular words are necessary to create a trust by will, so long as the provisions thereof are of such a character as that in order to carry them out, the ordinary powers and duties of a trustee, within the Revised Statutes, are required. Brewster v. Striker, 2 N. Y., 19; Vernon v. Vernon, 53 id., 351; Morse v. Morse, 85 id., 60.

Another question raised by the appellants relates to the term legal heirs ” as used in the will, and whether the persons answering to that description take under the will per stirpes or per capita. The special term has, we think properly construed the will to mean that the collateral relatives should take, not individually, but in families or per stirpes. This result is mainly arrived at in this particular instance, for the reason that the testator has not named any of his collateral relatives anywhere in the will, and refers to them in this position of the will in the same way that they would be considered when applying to their right the statute of descents of this state. See, Ferrer v. Pyne, 81 N. Y., 281; Kelly v. Vigas, 20 Reporter, 103.

The trial judge, while denying to the plaintiff his prayer for partition of the real estate, gives certain relief to him by way of a judicial construction of the will, and holds that he, with other parties to the suit, is entitled to share in the property, both real and personal, as a remainderman. So far as the decision relates to the real estate, it is correct, but the plaintiff is not entitled to share in any of the personal property. Though a legal heir, he is not the next of kin, within the statute of distributions, which prohibits representation among collaterals, after brothers and sisters children.

The plaintiff, being a grandnephew, is not entitled to share in the personal property, unless the expression “ legal heirs ” is to be construed broadly enough to include next of kin. A careful reading of the will leads irresistibly to the conclusion that the testator intended, as has been intimated above, that after the full enjoyment by his wife of his estate, at her death the property should go to his collateral relatives as in case of intestacy. The expression in this clause of the will means, that the property after the death of his wife, should be distributed according to law. It would do violence to the whole will and to the situation of the beneficiaries in their relationship to the testator, to say that he intended that the plaintiff should have greater rights or interest in his property than he would have had, had there been no will. It is noticeable that the expression is not “ heirs” alone, but “legal heirs,” thus imparting into it a distinct intimation that the property should be distributed and descend according to law.

The only remaining question is, whether or not the plaintiff, by bringing this action,, has debarred himself from sharing in the property under the prohibitory clauses of the will. Although this position is taken in the printed briefs, yet we do not understand counsel to have insisted, upon the oral argument, that a declaration of this court to that effect should be made. Indeed, were the position insisted upon, we should feel constrained, under the circumstances, to overrule it, not only upon the ground stated by the learned trial judge, namely, that the plaintiff is an infant, but upon the further ground that the action itself was not, in its scope and purpose, intended to defeat the known and established intention of the testator, but to obtain an adjudication as to what that intention was. This is not an interference with the legal rights of the executor and trustee.

Had the action been based upon an allegation of undue influence in procuring the will or of the mental incapacity in the testator, or of duress, and the plaintiff had been defeated upon the issues, a different question would probably arise. Indeed, the fact that we feel constrained to differ from the trial judge in relation to the extent of the interest of the infant in the estate, is sufficient to show that the action was not brought without a semblance of a just claim.

It follows that the judgment should be affirmed, except as modified in the particular above mentioned, the costs to be paid out of the estate.

van Brunt, J, concurs.  