
    EDWIN B. MEEKS, as Surviving Executor, etc., Respondent v. THE METROPOLITAN ELEVATED RAILWAY COMPANY, et al., Appellants.
    
      Trusts under a will, express and implied—Power in trustees to hold and sell and distribute the rents and profits and the proceeds of a sale.
    
    Joseph W. Meeks, the testator, died seized of certain property, leaving a last will and testament whereby the said property was devised to the plaintiff and another person, in trust, as executors and trustees. (1.) The executors and trustees are directed, until the sale of the real estate as provided in the will, to keep the buildings in repair and insured; to pay all taxes and assessments on the property, and to collect and receive the rents and profits. (2). The executors are further expressly authorized, empowered and directed to sell at public auction, at such time and manner as they shall think best, all the real estate, etc., and to divide the proceeds into four parts, and pay over one and invest the other three in three separate trusts each for one life with remainder. (3.) Until the conversion of the real and personal estate into money, and its division as provided, the said absolute legatee and the three life legatees are to receive the income of the residuary estate, share and share alike. The defendants moved to dismiss the complaint on the grounds (1.) That the will attempts to Great an express trust not authorized by the Revised Statutes; (2.) That the trust created may suspend the power of alienation in contravention of the statute of perpetuities, and (3.) That the action should have been brought in the names of the real parties in interest.
    
      Held, That to entitle plaintiff to judgment it must appear that the title to the property in question became vested in the plaintiff, as trustee, or that he was entitled to the possession and enjoyment of the property. The testator clearly expressed his intention in the will, that his property should not descend to his heirs at law; and the heirs at law, as such, are not entitled 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. It is the plaintiff, as trustee, who would have been entitled to the amount required to have been paid for the prop erty, if the defendants had taken the same under the right of eminent domain; and, until the sale of the property by the plaintiff, as trustee, he is entitled to the possession of the property and to the rents and income thereof. It is the plaintiff, as trustee, therefore, who can maintain an action for the use and occupation of the property and for an injunction to restrain a trespass upon it; and a conveyance by him to the defendants, under the power of sale contained in the will would have conveyed a good title. The heirs at law of the testator were not necessary parties to this action to restrain a trespass upon the property, or to recover possession thereof, or damages for such trespass, nor necessary parties to a conveyance of the property in order to vest a good title thereby. The executors and trustees took the legal title to the property under the will. The intention of the testator that they should take the title to the estate, collect the rents and profits until it should be sold, and then receive the proceeds of sale and divide the same, is clearly expressed by the will. The will created an express trust to sell the property, receive the rents and profits and to apply the same, and the proceeds of the sale, to the use of the persons having a life estate in the same or otherwise entitled thereto.
    Before Freedman and Ingraham, JJ.
    
      Decided December 1, 1890.
    Appeal from judgment entered upon the decision of the special term.
    
      Davies & Rap alio, for appellants, argued:—
    The learned trial judge erred in finding that the plaintiff was, and with his co-trustee had been, the owner in fee simple of the premises in question. The Code requires that every action must be prosecuted in the name of the real party in interest, except that an executor or administrator, a trustee of an express trust, or a person expressly authorized by statute may sue without joining with him the person for whose benefit the action is prosecuted. Code of Civil Procedure, § 449. The objection that the plaintiff is not the real party in interest is available to the defendants. Sandford v. Sandford, 45 N. Y. 723 ; Hubbill v. Lerch, 62 Barb. 295. If the plaintiff claims to be within the exception of a.n executor, or trustee of an express trust, he must show that he is an executor, or trustee, and has a right of action as such. If he has no right of action as executor , or if he is not a trustee, or if his alleged trust is void so that he takes no estate, then he cannot maintain the action. Griswold v. Watkins, 20 Hun, 114 ; McColl v. Frazer, 40 lb. 111. It is to be observed of this will that there is no devise of the residuary estate to the executors or trustees. On the contrary, the language, in respect to all that precedes the division of the converted estate, is, “ 1 order and direct ” or “ 1 authorize, empower and direct,” etc. This language shows clearly an intent that all that precedes the division shall be accomplished by means of powers in trust given to the executors. Fortunately it is not necessary to go far to find conclusive authority upon the true construction of such a will. The case of Henderson v. Henderson, 113 N. Y. 1, is, upon this point, the counterpart of this will, and decides that the executors take only powers in trust. The testator in that will directed his executors to partition his estate among his children, and, for that purpose, to sell the real estate, and, in the meantime, to take entire charge and control and .management of the real and personal estate ; to lease and to collect the rents, issues, profits-and income; to make investments ; to insure ; to pay taxes and assessments ;' to make repairs ; to pull down buildings and to erect new ones, and to pay each child of the testator $2,400 annually, in quarterly payments until the estate was divided. No devise of the residuary estate was made to the executors. The only difference in the two cases is that, in the Henderson case, after the estate was converted and divided, each child got his share absolutely, while in this case Albert V. Meeks gets his one-quarter absolutely, and Joseph, Edwin and Mrs. Hawkins each have their shares vested in the executors, as trustees, upon an express trust for their lives severally. But this difference does not touch the question of the character of the executor’s interest prior to the division. In construing the Henderson will the Court of Appeals says: “We do not think that any valid express trust was created by the testator, for, if such was his intention, it would be ineffectual for not being comprehended within the provisions of section 55 of the Article on Uses and Trusts in the Revised Statutes. The main purpose of the testator’s will was that his children should participate equally in his residuary estate, and that its division among them should be effected by his executor. For the better execution of that purpose he gave a discretionary power of sale to the executor and the further power to manage the estate and to receive the rents, profits and income thereof is conferred until partition and division.. There is no express devise of the residuary estate to any one, and, if no valid trust title was created in the executor, it must follow that the legal title to the real estate vested in the children at the testator’s death, subject to the power given to the executor to partition, and meanwhile to manage and sell.” " The same rule applies, even where the estate is devised directly to the executors, unless a valid express trust is also created. Cooke v. Platt, 98 N. Y. 35 ; Korvalinka v. Schlegel, 104 lb. 125. In Robert v. Corning, 89 N. Y. 225, upon which the plaintiff relies, the question whether the executors took an estate or simply powers in trust was not decided. Judge Andrews said that it was unnecessary to decide it. But he concurred in the opinion in the Henderson case, supra, that such a will created only powers in trust.
    In this will, the executors or trustees are not empowered to make leases. They are simply appointed collectors of the rents, etc., of property which is bequeathed directly to the children until the conversion of the estate. No duties are imposed by this will upon. the executors or trustees which require, or which even render convenient for their discharge, the vesting in the executors of an estate in these premises. Hence no estate in the executors will be implied, where none is expressly created. Brewster v. Striker, 2 N. Y. 19 ; Morse v. Morse, 85 lb. 53. As there is no valid trust title created in the executors of this will, and as their trusts relate only to the funds of Donelly and the widow, and the separated three-quarter shares of the divided estate, after sale and division, it necessarily follows that the legal title to No. 30 Vesey street, the premises in question, is now vested in the heirs at law of the testator, subject to the powers given to the executor to partition and in the meantime to manage and sell. But these powers do. not give to the surviving executor any standing in court as executor, or as trustee, to maintain this action. He stands in respect to the heirs, precisely as if he had a valid and irrevocable power of attorney from them to do what the will empowers him to do. The logical conclusion is that the plaintiffwas not the proper party to bring this action ; that he owns no estate in the premises to .which this action relates ; that judgment against him would not have barred an action by the true owners ; and that judgment in his favor will be no protection against an action by the true owners, if such should be brought. The existence of a power of sale for the purposes of division does not affect the question, for, in the first place, such a power does not authorize the plaintiff to maintain this action. In the second place the power of sale is expressly limited to a sale at public auction, and a conveyance taken from the plaintiff in the manner contemplated by the judgment, would not be in compliance with the terms of the will, and would be no protection to the defendants in case an action were brought for an injunction by the devisees under the will of Joseph W. Meeks.
    
      
      Eugene D. Hawkins, for respondent, argued:—
    I. The appellants must on this appeal take the position that the plaintiff is not properly a party to the suit; they cannot claim as a ground for reversal that there is a mere defect of parties plaintiffs or defendants, or that the plaintiff has not the legal capacity to sue. The plaintiff was named as executor in the will and qualified as such ; he has proceeded to act in the execution of the duties of the trust for eleven years, and he has brought this suit in his representative capacity, as executor and trustee. These acts are sufficient to denote his acceptance of the trust. 1 Lewin on Trust (1st Amer. ed.), p. 200. He alleges and proves that he is trustee of an express trust, and so, under § 449 of Code of Civ. Pro., he is the real party in interest and can sue without joining the beneficiaries. See Hubble v. Medbury, 53 N. Y. 102, where the court holds, “ The trustee of an express trust may by it, sue without joining the beneficiaries ” (it referring to § 113 of the old Code, which is the, same as § 449 above). See also Clark v. Fosdick, 118 N. Y. 12, and cases there cited. These questions as to plaintiff’s want off capacity to sue, and as to defect of parties, could not have been raised by demurrer, as the facts on which the defendants make the claim do not appear on the face of the complaint. The defendants should have raised these objections by answer (Code, § 498), and not having-raised them by answer (ff. 36-58) they are deemed to have waived them (Code, § 499). Defendants did notvat añy timé move to amend their answer by setting-up these additional defenses.
    II. That there is no express devise in trust to the executors,' does not prevent the existence of an express trust, under the Statute of Uses and Trusts. Vernon v. Vernon, 53 N. Y. 359. “To constitute a valid trust .under the statute, the trust must be declared in the instrument creating it; but it is not necessary that the purpose of the trust should be stated in the words of the statute. It is sufficient that a purpose within the statute is clearly embraced in the language used, in that a power conferred in express times includes a power over the estate, for the execution of which the trustee may be clothed with the legal title.” Hill on Trustees, (3d Amer. ed.), p. 99 : “ It is by no means necessary that the donee should be expressly directed to hold the' property to certain uses, or in trust, or as a 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 that effect. It was said by Lord Eldon, that the word 6 trust ’ not being made use of is a circumstance to be alluded to, but nothing more ; ,and if the whole frame of the will creates a trust, the law is the same though the word trust is not used.” (This paragraph quoted with approval in Tobias v. Ketchum, 32 N. Y. 326). Ward v. Ward, 105 N. Y. 74. “ 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 ”—(cases cited). Morse v. Morse, 85 N. Y. 60. “No particular formula of words need be used. It is not essential that the words ‘ trust ’ or 6 trustee ’ should be used, or that there should be a direct devise in terms to the trustee, or that the authority to receive the rents and profits should be conferred in express language.” .In Leggett v. Perkins, 2 Comstock, 298, the will read r “ I give unto my two daughters, Susan .and Mary Jaggar, the remaining two-fifths of my estate, so that each may have and enjoy the interest and income of one equal one-fifth thereof during their several natural lives and at their deaths respectively I will the share of each to their respective issue, their heirs and assigns forever. Item, I hereby appoint my executors * * trustees to the estate of my two daughters, hereby authorizing and desiring my executors, as such trustees, to take charge of all such portion of my estate as is herein given to them respectively, and to take care of, manage and improve the same and to pay over to them the rents, interests or net income.” The executors were further authorized to- sell the real estate and invest the proceeds for the benefit of said daughters. Held : “ Now the trust to .receive and pay over the rents and profits of real estate was a familiar trust at common law ; and the decisions are uniform and clear, that, as a general rule, when a testator by his will empowers and requires his executors to receive and apply or pay the rents of an estate, to make repairs, or to pay annuities out of the same, the executors take by implication of law, the estate in trust over which those powers are to be exercised.” “The formal devise or delegation of the trust to them, is alone wanting ; but no express devise or delegation of trust was indispensably necessary. The law will imply the formal delegation, where the trust is in substance indicated.” Craig v. Craig, 3 Barb. Ch. 80 (Walworth, Ch.). Donovan v. Van DeMark, 78 N. Y. 246. “I give, devise and bequeath to George Chambers all my estate, in trust nevertheless for the necessary support and maintenance of my son A. during his natural life, and after his death I give and bequeath the said estate to Abraham’s children. “ I appoint and empower him to sell,” etc. Held, that the trustee was trustee of an express trust and the proper party to bring ejectment. All decisions agree “ that it is not necessary the trust should be stated in the very words of the statute, but it is sufficient if a purpose within the statute is clearly embraced in the language used, for the execution of which the trustee may be clothed with the legal title.” 1 R. S. pt. II., chap. I., tit. 5, p. 748, § 2 : “ § 2. In the construction of every instrument creating or conveying or authorizing the creation or conveyance of any estate or interest in lands, it shall be the duty of courts of justice to carry into effect the intent of the parties, so far as such intent can be collected from the whole instrument, and is consistent with the rules of law.”
    III. The power given the executors to insure, to repair, to pay taxes and assessments, to collect and receive the rents, and the direction that the residuary legatees shall receive the net income of the residuary estate, share and share alike, taken together with the imperative power of sale given to the executors, created an express trust and gave the executors the title to the real estate in fee, in trust. R. S., part II., chap. I., tit. 2, art. 2, p. 728, § 55 (7th Ed., p. 2181), provides as follows: “ § 55. Express trusts may be created for any or either of the following purposes : (2.) To sell * * * lands for the benefit of legatees. (3.) To receive the rents and profits of lands and apply them to the use of any person during the life of such person or for any shorter term.” “ § 60. Every express trust, valid, as such, in its creation, ***** shall vest the whole estate in the trustees, in law and in equity, subject only to the execution of the trust. The person for whose benefit the trust is created shall take no estate or interest in the lands, but may enforce the performance of the trust in equity.” Downing v. Marshall, 23 N. Y. 377 ; Coster v. Lorillard, 14 Wend. 323 ; Tobias v. Ketchum, 32 N. Y. 329 ; Duval v. Eng., etc., Church of St. James, 53 lb. 500 ; Moore v. Hegeman, 72 lb. 376 ; Savage v. Burnham, 17 lb. 561 ; Noyes v. Blakeman, 6 lb. 578 ; Marvin v. Smith, 46 lb. 576 ; Craig v. Hone, 2 Edw. Ch. 559; McLean v. McDonald, 2 Barb. 537.
    IV. The residuary estate, under the will of Joseph W. Meeks, so far as it was composed of real estate, was equitably converted into personal property the moment the will went into effect, and whatever interest the beneficiaries have is personal property, the whole title to, and estate in the real property vesting absolutely in the executors. Gilman v. Reddington, 24 N. Y. 12. “ Trusts in personal estate are subject to no statutory restriction ; in other words, the legislature has never attempted to define and enumerate the lawful occasions for creating such trusts. They stand, therefore, as at common law, subject only to the statutory rule against the suspension of ownership for more than two lives.” Greenland v. Waddell, 116 N. Y. 240 ; McLean v. Walgrove, 2 Barb. 534 ; Ash v. Ash, 18 Abb. N. C. 82 ; Morse v. Morse, 85 N. Y. 53 ; Thomson v. Thomson, 55 How. 494 ; Roberts v. Corning, 89 N. Y. 225 ; Grieveson v. Kirsopp, 2 Kean, 653 ; Burrell v. Baskerfield, 11 Beav. 533 ; Ward v. Arch, 15 Sim. 389.
   By the Court.—Ingraham, 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 of and object 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 defendants had taken the property under the right of eminent domain it is the plaintiff, as trasteé, 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 defendants under the 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 defendants.

It 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 Roberts 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 nable 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 trustees 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 purpose 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, 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 required no special mention.

Judgment should be affirmed, with costs.

Fbeedman, J., concurred.  