
    William S. Felter and John J. Felter, Jr., Appellants, v. Jane E. Ackerson and Others, Respondents.
    
      Will'—construed to create a trust although there was no express devise to the trustee — when the remainder vests in the life tenants.
    
    A testator, by the 3d clause of his will, gave his residuary estate to his four sons and two daughters, naming them, “to be divided equally between them, share and share alike,” and by the 7th clause thereof provided, “I order and direct that the shares to be given to my sons, William 8. Felter and John J. Felter, Jr., be held in trust for them, and that George William Reimer, of Rockland Lake, act as trustee of said property and pay over to said William S. Felter and John J. Felter, Jr., the respective incomes derived therefrom.” Held, that, notwithstanding that there was no express devise or bequest to the trustee, a valid trust was created in each of the shares of the sons, William S. Felter and John J. Felter, Jr., to continue during their respective lives, the respective estates in remainder being vested under the 8d clause of the will in such life tenants.
    Appeal by the plaintiffs, William S. Felter and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Rockland on the lltli day of July, 1898, upon the decision of the court rendered after a trial at the Orange Special Term.
    
      
      Abram A. Demarest, for the appellants.
    
      Harvey De Baun, for the respondents.
   Cullen, J. :

This action is for the construction of the will of John J. Felter. The following are the only parts of the will material to this controversy:

3rd. All the rest, residue and remainder of my property, both real and personal, I give and bequeath to my four sons and two daughters, viz., Charles Felter, Jane E. Ackerson, Mary L. Felter, George S. Felter, William S. Felter and John J. Felter, Jr. to be divided equally between them, share and share alike. * * *
Hth. I order and direct that the shares to be given to my sons William S. Felter and John J. Felter, Jr., be held in trust for them and that George William Reimer, of Rockland Lake, act as trustee of said property and pay over to said William S. Felter and John J. Felter, Jr., the respective incomes derived therefrom.”

The learned judge at Special Term held that by the 7th clause valid trusts were created in the shares of the two plaintiffs, to continue during their respective lives, and that as to the remainders on their death the testator died intestate and that the same passed to his heirs at law.

We think the decision of the Special Term, that a valid trust Avascreated in each of the shares of the sons William S. and John J.,, was correct. It is true that in the Avill there is found no express-bequest or devise to the trustee, but, nevertheless, the intent of the testator is expressed too clearly to admit of mistake and a devise or bequest to the trustee may be implied. (Brewster v. Striker, 2 N. Y. 19.) “ It is by no means necessary that the donee should be expressly directed to hold the property to certain1 uses ’ or ‘in trust’ or as ‘ trustee.’ * * * It is one of the fixed rules of equitable construction that there is no magic in particular words, and any expressions that show unequivocally the intention of the parties to-create a trust will have the same effect.” (Hill Trust. [4th ed.] 101 Tobias v. Ketchum,, 32 N. Y. 319. See, also, Ward v. Ward, 105 id. 68.)

But Ave think that the court at Special Term erred in its determination that the remainders in these shares after the death of the. Tespective equitable life tenants were undisposed of by the will. The 3d clause, standing by itself, would give to the plaintiffs absolute estates in their respective shares. Two rules of law relative to the construction of wills are well settled. The first is that where an estate is given in one part of the will in clear and decisive terms, it cannot be cut down by any words in a subsequent clause that are not as clear and decisive as the words of the clause giving that estate. ■(Roseboom v. Roseboom, 81 N. Y. 356.) Second, that the law prefers a construction of a will which will prevent intestacy to one that will permit it. (Vernon v. Vernon, 53 N. Y. 351.) We are of ■opinion that the direction of the 7th clause, that the shares of the plaintiffs be held in trust, is so clear and express as to limit the previous absolute gift found in the 3d clause. But the provisions ■of the 7th clause modify or abrogate those of the 3d clause only to the extent to which the provisions are inconsistent. The Special Term held, and rightly, as we think, that a trust in one of these ■shares was created only during the life of the equitable life tenant. Therefore, to this extent only does the 7th clause revoke or modify the absolute gift found in the previous clause. The remainder after the death of the life tenant, which was given to such life tenant by the 3d clause, remains wholly unaffected by the subsequent dispositions of the will, which deal only with the life estate.

The judgment appealed from should be modified so as to declare that each of the plaintiffs has a vested remainder in his share from and after his own decease, the costs of all parties to be paid out of the estate.

All concurred.

Judgment modified so as to declare that each of the plaintiffs has a vested remainder in his share from and after his own decease, and •as modified affirmed, the costs of all parties to be paid out of the «estate.  