
    George Gueutal, Second, and Others, Respondents, v. Adele Gueutal and Others, Appellants, Impleaded with George Gueutal and Others, Defendants.
    First Department,
    May 11, 1906.
    Trust deed — when void as indefinite and''for unlawfully suspending! power of alienation — when such alleged trust passive — equity will! not construe or enforce instrument plainly void.
    Action in equity to construe and enforce an instrument alleged to create a trust.! One G-.-conveyed property by, deed to a trustee, who simultaneously delivered! an instrument reciting that she held as "trustee and that she would continue to bold “,in trust -only for the use and benefit of the estate of 01” and'-otheil ■ beneficiaries: ’ - V '.
    
      
      Held, that the alleged trust was void for uncertainty of beneficiaries, for “the estate of 0.,” in the absence of anything to the contrary, means executors or administrators and such representatives cannot take title to real estate; .
    That the trust was void in creating a perpetuity, there being no time fixed for , the duration thereof;
    That the trust created was passive, not active, and thus no trust at all by virtue' of the statute abolishing passive trusts, and hence the title never vested in the trustee, but passed immediately to the beneficiary;
    That as those entitled to the property had an,adequate legal remedy by partition or ejectment, equity would not take jurisdiction;
    That as the trust attempted to be created was void, equity would not con- • strue or enforce the instruments and the demurrer to the complaint should be sustained.
    Appeal by the defendants, Adele Gueutal and others, 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 14th day of December,. 1905, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the said defendants’ demurrer.
    
      Rastus S. Ransom, for the appellants.
    
      I. Newton Williams, for the respondents.
   McLaughlin, J.:

This appeal is from an interlocutory judgment overruling a demurrer to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action. The complaint alleges that on the 2d of - January, 1880, George Gueutal conveyed the premises therein described to Louise 0. Gueutal, “trustee, etc. that simultaneously with the delivery of the deed she made and delivered an instrument which is annexed to. and made a part of the complaint, designated Exhibit A. This instrument was recorded immediately prior to the recording- of the deed. It recites that “'Whereas, George Gueutal * * * has, by deed bearing even date herewith, granted and conveyed to me in fee simple as trustee,” (Here follows description of land conveyed,) “How Know Ye, that I, said Louise C. Gueutal, do by these presents make known, admit and declare that said premises were so conveyed to me and that-1 now hold and will continue to hold the same in trust only for the use and benefit of the estate of Catherine Gueutal, and also for the use and benefit, of Ádele Gueutal, Ma-rie Gueutal and myself and for our respective heirs, executors and administrators. The respective interests of the said cestui que trust in same being- as follows, viz.: Interest of .the estate Catherine Gneutal-in said property being Thirty-nine hundred and sixty, Sixty-one hundred and sixty-eighths (3960/6168) of "the same and the respective interests of the said Adele Gueutal, Marie Gueutal and myself. in said property being Seven -hundred and thirty-six. Sixty-óne hundred and sixty-eighths (736/6168) of tiie same,”

The complaint further alleges that Louise C. Gueutal accepted the trust, entered into possession of the real estate described, received the rents and profits thereof and applied the same'according to the terms of the trust until she died on the 17th of March, 1895, and on the 4th of March, 1904, letters of administration de bonis non were granted to the defendant, George Gueutal) 2d, who/ duly qualified and since has been'and now is acting as such administrator; that at the time of the execution and delivery of the deed and the declara- , tion of trust Louise C. Giieutal was. the administratrix of Catherine Guetal, deceased, who died leaving George Gueutal, her husband,, and certain heirs at law, who are named; that the husband died on the 26th of. August, 1884, unmarried and intestate, leaving him-surviving certain heirs at law, who are named. -

The complaint further alleges that the trustee named ,in the conveyances not only entered into .possession of the property conveyed,, , but that she collected and applied the zrents according to the terms of, thé trust until her death .in 1895 ; that in 1904 one Edward „J. McGuire was appointed by the court to execute, under its direction, the trust created by the deed and the declaration of the same,'and that he qualified, entered upon'the discharge of his duties, ever since lias been and now is acting as such; and that the defendant Myers, executor of the will of'the defendant Pauly, prior to 1904, took possession of the land, under a claim of right, the nature 'and extent of-which is unknown to the plaintiffs, and has since received the rents, '■ issues and profits, of the' same, notwithstanding the order of. the court, although possession of such property and the rents have been duly demanded by the trustee appointed as above stated.

The judgment demanded is that the deed and the declaration of trust be construed Nby, the court ■ and that it declare and direct the trustee to enforce the same by a sale and a division of the proceeds derived therefrom among the persons entitled thereto; and that Myers, and such other defendants as shall appear to have received any part of the rents, issues and profits, account.

I am of the opinion that the demurrer should have been sustained, and for that reason the judgment must be reversed. The action is in equity and' its purpose is to procure a construction of the conveyance and the declaration of trust; a sale of the subject-matter of the trust; a division of the proceeds; together with an accounting by the persons who have received any income from such property prior thereto. A court of equity never exercises its powers except to accomplish some purpose (Chipman v. Montgomery, 63 N. Y. 221) and here it would accomplish no purpose to construe the deed of conveyance and the declaration of trust in connection therewith because the trust attempted to be created is void. If it be considered as an active trust it is void (1) because it is so indefinite it cannot be enforced (People v. Powers, 147 N. Y. 104); and (2) because it suspénds the power of alienation for a longer period than two lives in being. (1 R. S. 723, §§ 14-16; revised in Real Prop. Law [Laws of 1896, chap. 547], § 32.)

Just what is mpant by “ the estate of Catherine Gueutal” cannot be determined from the conveyance or the declaration of trust, nor is there anything in either or both of such instruménts which throws' any light on that subject. If it be assumed that those words mean the legal representatives, which in the absence of anything to the contrary mean the administrators or executors (Griswold v. Sawyer, 125 N. Y. 411), then it must also be assumed that such legal representatives were to reqeive the same for the purposes for which an administrator may receive the personal property of an intestate. An administrator cannot take title to real estate. Such title must be taken by a person or a corporation created for that purpose, designated by the owner. (Tilden v. Green, 130 N. Y. 29.)

The trust attempted to be created is a perpetuity. It is to hold the land conveyed in trust only for. the use and benefit of the estate of Catherine Gueutal and also for the use and benefit of Adele Gueutal, Marie Gueutal and myself, and- for our respective heirs, executors and administrators.” But for the interposition of this supposed trust term the beneficiaries would be entitled to possession. There is no limit fixed for the duration of the trust; or) the,contrary, the words used indicate it is to continue indefinitely.

■' This makes it void under the ’Statute cited. (Crooke v. County of Kings, 97 N. Y. 421; Greene v. Greene, 125 id. 506.) But this is not an active trust. The deed and the declaration of trust made by Louise C. Gueutal did nothing .but create a,passive trust, which in effect did not create any trust at all, the result" of which is that the title conveyed -immediately passed to the beneficiaries of the trust and not to the trustee; in other words, the trustee was the-mere Qonduit through which the title passed from. George Gueutal, the grantor,, to the' beneficiaries named by Louise 0: Gueutal in her declaration of trust. She, at most, took a mere naked trust which was abolished' by the "Bevised Statutes (1 R. S. 727; -§§ 47,. 48; Id. 728, §§ 49, 50 ; Id. 732, § 81), and the Beal -Property Law (Laws of 1896, chap. 547, §§ 72, 73, 129). The legal or equitable estate never vested in her, but did vest iinmediatel-y upon the exe^ cntion and delivery ’of the instrument in the persons in whose favor the trust was'declared (Wendt v. Walsh, 164 N. Y. 154, and cases cited), and the grantee in the deed did. not receive-even a powei- in trust. This being so, there 'is no necessity for resort to a court 'of equity, inasmudh as .they may maintain an action-at^ law for a partition of the property conveyed, or, if possession be withheld, then to an action in ejectment. '

If the estate of Catherine.Gueutal has a valid claim- to-any portion of the rents and profits of the land, then such claim is personal property and the .title- thereto is in the administrator of her estate, yvlio ..may enforce- the same by an appropriate action, or by a, proceeding in the Surrogate’s Court.

If the foregoing views be correct,'then it follows that -the interlocutory judgment appealed from must-be reversed, with costs,' aiid the demurrer sustained,, with costs, 'with leave to serve an -amended complaint upon payment of. costs in this court and in the court below.

O’Brien, P. J.;. Ingraham,. Clarke and Houghton, JJ., concurred.

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs- in this court. and in the. court below. Order filed.  