
    John W. McDougall and Sidney McDougall, Individually, and as Executors, etc., of Susanna McDougall, Deceased, and Others, Plaintiffs, v. William P. Dixon, Defendant.
    
      Marketable title—an express .trust may be 'valid, although no trustee is named — ' effect of apower of disposition at death given to the beneficiary — sale in partition.
    
    The will of a testatrix, who left four children, after making a specific devise of a house and lot, provided: “ The remainder of my estate * * * ■ is to be divided into four equal shares,” “one share each to be given absolutely ” to each of three children; • “ the remaining one-fourth share is to be invested and held in trust for the benefit of my son Addison McDougall, and the income from said share to.be paid him semi-annually or annually as he may desire it, but he (Addison) is to have the right to bequeath his share at his death to whomsoever or whatsoever he pleases, should he survive me.”
    
      Meld, that the provision relative to the son. Addison, notwithstanding the failure óf the will to name a trustee, created an express trust,, within section 55 of . the Statute of Uses and Trusts (1 R. S. 728), and that the legal title to an . undivided.one fom'th interest in the property would vest in a trustee, which the court would appoint to execute the trust;
    That 'a good title to such óhe-fóufth interest would not be conveyed by a deed --diily fexecuted-by all the children of the testatrix;
    
      That, under the power of disposition given to Addison McDougall, he could create an estate which would pass under the will of the testatrix, and be superior to any estate which he and the other children of the testatrix could convey by deed.
    
      Semble, that a purchaser at a sale in an action for a partition of the property, in which the four children and a trustee when appointed were parties, would obtain a good title.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    
      Brainard Tolles, for the plaintiffs.
    
      Rufus W. Peckham, Jr., for the defendant.
   Ingraham, J.:

The question submitted is as to the sufficiency of the title tendered to the defendant by the plaintiffs in pursuance of a contract of sale of a house and lot on "West Twenty-ninth street in the city of New York. The premises in question were owned in fee by one Susanna McDougall, who died July 26, 1893, leaving as her heirs at law and next of kin four children, all of whom are plaintiffs in this action, as are also the executors of her last will and testament. Susanna McDougall left a last will and testament, by which all the remainder of her estate, after the devise of a specific house and lot, was to be divided into four equal shares. One share each to be given absolutely to my two sons, John Wilson McDougall and Sidney McDougall, and my daughter, LauraK. McDougall.” As to .those three shares there can seem to be no doubt but that they vested at once in the devisees, who thereby became tenants in common of all the real estate of the testator, together owning three undivided fourths of it. The provision as to the fourth share is as follows: The remaining one-fourth share is to be invested and held in trust for the benefit of my son Addison McDougall, and the income from said share to be paid him semi-annually or annually as he may desire it, but he (Addison) is to have the right to bequeath his share at his death to whomsoever or whatsoever he pleases, should he survive me.”

The general scheme of the will is- quite clear, though it is inartificially drawn, and the intention of the testatrix is not expressed in the terms usually used by the profession in instruments of this charaeter. Three undivided shares of the estate, both real and personal, were to vest absolutely in the three children named.. The remaining share was'to-be held in trust for the son Addison, the income of such share to be paid to him semi-annually. The inexperience of the draughtsman of this instrument .evidently made him oblivious-to the necessity of a trustee- to carry the. intention of the testatrix: into effect, or from inadvertence omit to name a trustee. The rule is quite familiar that a court will never allow a trust to fail for want of a competent trustee; and thus, it would become the duty of the court to name a trustee to carry the trust into effect. ■

It is quite apparent, I think, that the direction to divide was equivalent to a direction to separate this share to be held in trust' from that which was to vest in the other children. The division directed by the 'will was evidently not intended to accomplish a physical separation of the property by operation 'of .the will itself, but that each of the four shares. should be distinct as to their vesting in four different individuals. The provision that the remainder .of the estate “is. to be divided' into four equal shares,” does not contain a direction to any individual to make, such a. division' or partition among the legatees or devisees. Ho direction to any one to'make such partition.is given. Ho direction is expressed as to the physical partition or division before the vesting of the estate. The will says that “The remainder of my estate' •* * .* is to be divided into four, equal shares,” that is, I, by this will, direct it to . be divided into four equal shares, one' of which I give to each of the three children named. As, however, to the .fourth share, it is. my Wish to create a trust, the income of which is to be paid to the son named during his life, such son to have a right to dispose of the share at his death. . .

It is quite clear that this is an express trust within section 55 of the Statute of Uses and Trusts (IE. S. 728), and is in all respects valid,,the only difficulty about it being the failure-to name a trustee. ■ That defect' a court of' equity will -supply; and, upon the designation by the court of equity of a trustee, the. title to an undivided fourth interest in the estate would vest in. such trustee.

How, it seems to me quite clear, that .this proposed conveyance • would not convey such undivided fourth part of this estate as vested .in this, trustee. Certainly the legal title vested in such trustee, when appointed, could not be divested by the conveyance of all the plaintiffs in the action. Under the power of disposition contained in this will, Addison, by disposing of his interest in this property upon his death, could create an estate in one not a party to this conveyance, or to this action, whose title would pass under the will and would be superior to that of the grantee of the deed tendered by the plaintiffs. In all events, a question is presented which would be quite serious, and which, in the absence of the person who would then be entitled to the estate, could not be determined in a manner to bind him; and the fact that such a serious dispute as to the title may be presented in the. future, although such a dispute rests upon a question of law, is one that should not be thrown upon the purchaser under such a contract as the present one. A partition of this property, making all of these persons, including a trustee when appointed, parties, would undoubtedly vest a good title in the purchaser, but we think that this conveyance would fail to vest such a title in the defendant as he is entitled to under his contract.

There should be judgment for the defendant, therefore, but, as the parties expressly waived costs on the submission, it should be without costs.

Williams, Patterson and O’Brien, JJ., concurred ; Van Brunt, P. J., concurred in result.

Judgment ordered for the defendant, without costs.  