
    DAVID SEARS, et al., Respondents v. THE METROPOLITAN ELEVATED RAILWAY COMPANY, et al., Appellants.
    
      Will directing a division into shares—Direction accomplished by a partition action—Jury trial, xohen not a constitutional right.
    
    By the will in the ease at bar the testator directed that his estate, real and. personal, should be divided into five shares, and devised to each of his three sons one of such shares in fee, one other of such shares he devised to his executors in trust upon the following trusts, among others, to receive the rents thereof and apply them to the separate use of his daughter Sabina Redmond during her life, and devised the fee over on her death, the persons to take depending on the happening of one of three events in the will specified; the remaining share he devised to his executors in trust upon the following trust, among others, to receive the rents thereof and apply them to the separate use of his daughter Emily E. Hoyt during her life and devised the fee over on her death, the persons to take depending on the happening of one of the three events specified in the will, one of which events was the death of such daughter leaving children or grandchildren living at her death without having by her will or an instrument in the nature of a will made any devise, direction or appointment as to such share, in which event he devised such share in fee to her child or children then living and to the child or children then living of every child of hers who should then be dead, as tenants in common, the child or children of a deceased child to take the same share which his, her or their parent, if living would be entitled to. The testator died in 1842.
    In 1876, one of his sons commenced a partition action, making all persons in esse, having any interest, partie.s. Such proceedings were had that a decree of sale was made. Before the sale two of the persons named in the will as executors (one of them having qualified) divided the real estate whereof the testator died seized into five parcels as nearly equal in value as possible, and assigned one of such parcels to each share devised; and arranged to bid in at the sale at the valuation they had placed on them the pieces assigned to each parcel for the benefit and on account of those respectively interested in the share to which the parcels were respectively allotted. Thi» arrangement was in effect carried out at the sale; and the premises in question were bid in at the sale by Goold Hoyt as trustee under the will of Goold Hoyt, deceased, for Emily E. Sears (Emily E. Hoyt having married David Sears) and her children, and the same were by the referee conveyed to him as such. Thereafter Mrs. Sears died, without having made any devise, direction or appointment by will or instrument in the nature thereof, of the share so devised in trust by the said will of Goold Hoyt, deceased. The plaintiffs are the only children who survived her. She had two other children who died before her intestate. She left no grandchildren. Her husband died before her. Held, that the setting off directed by the will was accomplished by the partition action; that' Goold Hoyt 2d, as trustee under the will of Goold Hoyt, deceased, for Emily E. Sears and her children and heirs took the property conveyed to him by the referee as such trustee in severalty for the purposes of that trust; and that Mrs. Sears having died the legal estate of the trustee ceased, and the fee vested in the plaintiffs.
    This action was for both legal and equitable relief in respect of the same cause of action. Held, that the ease presented was not one of right triable by jury under the constitution.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.
    
      Decided April 6, 1891.
    . Appeal by defendants from judgment entered upon findings and conclusions made at special term.
    
      This action is brought to restrain defendants from maintaining, adding to, constructing or operating its road along, adjoining or in front of certain premises abutting on a certain street and to recover damages for injuries done in the past to certain easements appurtenant to said premises by the obstruction of light, air and access, and by the emission from the locomotives run on the road of great quantities of cinders, soot, ashes and other obnoxious material which enter the premises and make the occupancy thereof unhealthy and disagreeable, or if defendants should be permitted to continue the use of its railroad structure it should be on condition of their paying in addition to damages in the past the sum of fifty thousand dollars.
    The plaintiffs claimed title to the premises in question as heirs of Emily Esther Hoyt, wife of David Sears, who derived title through the will of her father Goold Hoyt who died seized and possessed of the premises ; her present source of title being a deed from Goold H. Redmond who claimed under a deed from Henry S. Hoyt, dated September 20th, 1883, in which the grantor describes himself “ as sole surviving executor of and trustee under the last will and testament of Goold Hoyt.”
    Goold Hoyt died July 22d, 1842, leaving a widow, Sabina Hoyt, and five children, viz.: Henry S. Hoyt, Goold Hoyt, 2d, Lydig M. Hoyt, Sabina E. Redmond and Emily E. Hoyt, the mother of the plaintiffs. He left a last will and testament dated April 19th, 1841, by which after making sundry specific devises and bequests not affecting the question involved in the case at bar, he directed that “all the residue of my real and personal estate shall be divided into five shares as hereafter directed.” He then made the following devises and bequests. He devised one of the five shares to his son Henry S. Hoyt, his heirs, executors and administrators. He .made a similar devise and bequest of one other of the five shares to his son Goold Hoyt. He made a similar devise and bequest of another of the five shares to his son Lydig M. Hoyt. He then gave, devised and bequeathed “ one other share or fifth part of my said residuary real and personal estate to my executors, in trust, to receive the rents, issues and profits thereof, and to apply the same to the separate use of my daughter Sabina, wife of William Eedmond during her life, free from the control, debts and engagements of her present or any future husband; ” and gave the same in fee after the death of such daughter to such one or more of her children and descendants, and on such shares or portions as she by her last will and testament or instrument in the nature thereof (which she, whether married or unmarried, was thereby authorized to make) shall devise, direct or appoint, and for want of such directions and appointments, and so far as the same shall not extend, he gave the same in fee, after the death of such daughter to her child or children then living, and to the child or children then living of every child of hers who shall then be dead, as tenants in common, the child or children of a deceased child of such daughter to take the same shares which his, her or their parent, if living, would be entitled to, and if such daughter should have no child or descendants her surviving then he gave said share in fee, after her death, to her heirs-at-law.
    He then made a devise and bequest similar to the one last above of the remaining one fifth share for the benefit of his daughter Emily E. Hoyt, her children, descendants, grand-children and heirs-at-law.
    He then gave his trustees directions as to the keeping of the real estate devised in trust in repair, paying taxes, assessments and insurance thereon and rebuilding in case of destruction by fire out of the rents, issues and profits thereof and also as to leasing the same.
    
      He then authorized the trustees “ to sell and convey in fee the real estate included in the shares held in trust.” And gave directions as to the investment of the proceeds of the sales and also of the personal property included in such shares.
    The will then contained the following item :
    
      “ Item. It is my advice to my children that after payment of all charges, debts and legacies the income of my estate be divided among all the persons entitled thereto but that the final settlement and partition of the estate to be made on or before the expiration of ten years from my decease.”
    It then contained directions as to charging against his children any advances he may have made to them.
    The will then contained the following items:
    “Item. Whenever my residuary estate shall be divided into five shares as aforesaid each of said shares shall be held in severalty, and as to such of the said shares as are devised and bequeathed in trust as aforesaid, I direct that the accounts respecting them be kept separate.
    “ Item. I authorize my executors to make partition of any real estate which at the time of my death I shall be seized of or entitled to as tenant in common with any other person or persons, and to execute proper deeds. and conveyances to carry such partition into effect, and to pay or receive money for equality of partition.
    “ Item. I authorize my executors at any time before partition thereof shall have been made as before directed, to sell, change or invest any part of my personal estate and also to sell all or any part of the real estate whereof I may die seized, except that which is situate in the city of New York, at public auction or at private sale, for cash or on credit, or partly for cash and partly on credit, and on such terms as they may think expedient, and to execute conveyances in fee to the purchasers, and also to execute conveyances for land contracted to be sold by me, or by my authority, and the money and proceeds arising from said sales shall go and be disposed of in the same manner as the real estate sold would have gone and been disposed of if no such sale had been made.
    “ Item. All the powers, authorities, estates and trusts hereby given to my executors, I do hereby give to such one or more of them as take upon himself or themselves the execution of this my will and to the survivors and last survivor of them.
    “ Item. I appoint my sons Henry S. Hoyt, Goold Hoyt and Lydig Monson Hoyt, and my son-in-law William Redmond, executors of this will.”
    There are" other clauses in the will which in no aspect are material to the questions involved in this action.
    The will is recorded in the office of the surrogate of the county of New York, in liber 85 of wills, page 343.
    Letters testamentary were granted to Goold Hoyt, 2d, August 9th, 1842, and he continued as the sole executor and trustee until his death about 1882.
    In 1860, the testator’s widow died. In 1849, his daughter (Emily E.) married David Sears, Jr. Sabina E. Redmond died in 1870. Lydig Hoyt died in August, 1868, In the year 1876, Henry S. Hoyt and wife instituted an action of partition in the Supreme' Court against Goold Hoyt, individually and as executor and trustee under the said will, and all other persons interested in the real estate of the testator, who were then in esse and such proceedings were had therein that by a decree dated November 28, 1877, the said real estate was adjudged to be sold by Henry J. Scudder, referee.
    Mr. Redmond testified that an made in 1877 (before the partition sale under arrangement was the decree above mentioned), between the different members of the family by which the property was divided between them; that Mr. Henry Hoyt and Mr. Goold Hoyt, who wrere the executors under the will of his grandfather, and himself divided all the real estate as nearly as they could into five parcels (that being the number of shares in which the testator Goold Hoyt directed his estate to be divided into), and allotted to each of the five shares devised by the will of Goold Hoyt one of such parcels; that in making the division they took all the different buildings and divided them into five; that there were fifteen or twenty different pieces of real estate; that each share got at least one or more pieces; that they valued each of those pieces for the purpose of making up the shares; that then they arranged that at the partition sale each parcel should be bid off for the benefit of those interested in the share to which it had been allotted, each, piece of property in each of thfe five allotted shares to be bid off at the valuation they had placed on them; that the piece of property in question like the others was bid off at the valuation, and in itself constituted one share ; that there were no biddings in opposition to them at the exchange; and that the partition sale was purely formal.
    At the partition sale the piece of property now in question was struck off to Goold Hoyt as trustee under the last will and testament of Goold Hoyt, deceased, for Emily E. Sears and children for $100,000. Other pieces of property .were struck off to Henry S. Hoyt for prices aggregating $100,000. Other pieces of property were struck off to Goold Hoyt individually for prices aggregating $100,000. Other pieces of property were struck off to Geraldine S. Hoyt as trustee under the will of Lydig M. Hoyt, he having died leaving a will devising his share in his father’s property in trust. The aggregate sums bidden for these pieces was $100,000. The remaining pieces were struck off to those interested in the share devised in trust for Sabina E. Redmond, she having died without making any devise or appointment of the share. The sums bid aggregated $100,000. Thus the arrangement made before the sale was carried into effect. Thereafter the referee who made the sale under the partition decree conveyed by deed, dated June 10,1878, the premises in question to “Goold Hoyt as trustee ■under the last will and testament of Goold Hoyt, deceased, for Emily E. Sears’ children ” pursuant to the terms of sale.
    In 1882, Goold Hoyt, 2d, having died, Henry S. Hoyt qualified as executor and letters testamentary were issued to him. In 1883, Henry S. Hoyt as sole surviving executor of and trustee under the last will and testament of Goold Hoyt, deceased, for a valuable consideration conveyed to Goold H. Redmond the premises which had been conveyed by said referee to Goold Hoyt, 2d, as trustee under the last will and testament of Goold Hoyt, deceased, for Emily E. Sears and children, and Goold H. Redmond conveyed the same to Mrs. Sears.
    The plaintiffs are the only surviving children of Mrs. Sears who died intestate in March, 1888, leaving no grand-children. She had two other children, both of whom died before her intestate. David Sears, the husband of Mrs. Sears, died in 1873.
    There never was any conveyance of these premises from Goold Hoyt as trustee, etc., to any one, and there never was any appointment of a .new trustee by the supreme court to execute the trust, if any, created by the deed to him as trustee.
    
      Davies & Rapallo, attorneys, and Edward C. James of counsel, for appellants, after referring to the . provisions of the will set forth in the statement of the case and the other matters therein set forth, argued on the questions contained in the opinion:—
    
      I. The will, having clothed the acting executor, Goold Hoyt, with a valid power in trust to make partition of the testator’s real estate, such partition could only be made by the due execution of said power, as directed by the testator, and the adverse partition action instituted by Henry S. Hoyt, and the proceedings taken therein were not a due execution of such power, but a nullity. Henderson v. Henderson, 113 N. Y. 1, 13; Cook v. Platt, 98 Ib. 35; Woodward v. James, 115 Ib. 346, 357.
    II. The deed from. Henry J. Scudder, referee, to Goold Hoyt as trustee, etc., for Mrs. Sears, did not convey the title to the premises in question, but was ineffectual for any purpose. Such referee could not create a trust in the lands of the testator, or fix upon any particular parcel of such land, the trust or estates, which the will provided should attach to the one-fifth to be divided and conveyed for Mrs. Sears by the act-, ing executor, under his powers in trust conferred for that purpose.
    III. The deed from Henry S. Hoyt, as sole surviving executor of and trustee under the will of Goold Hoyt, to Goold H. Redmond, dated Sept. 20, 1883, purporting to convey these premises, was ineffectual for any purpose, because, as executor and trustee, he had no power to convey real estate of the testator situate in the city of New York; and, as trustee for Mrs. Sears, he had no title to this particular lot, because it had never been set apart for her, or charged in severalty with the trust for her, as provided in said will; and also because whatever title Goold Hoyt had acquired therein, under said referee’s deed, if any, had vested at his death in the Supreme Court (3 R. S. (7 ed.) p. 2183, § 68); and also because such deed of Henry S. Hoyt was in subversion of such alleged trust.
    IV. The deed from Goold H. Redmond to Emily E. Sears, of the same premises, was also void for the same reasons.
    V. The interest of Emily E. Sears, at the time of her death, in the premises in question, was exactly what it had been immediately after her father’s death, to wit: a naked title to one undivided fifth part as heir-at-law of her father, subject to be divested by the due exercise of the powers in trust to partition and convey conferred by said will upon the executors, and subject to the powers of management and control conferred by said will upon the said executors until such division. Chamberlain v. Taylor, 105 N. Y. 185, 192; Henderson v. Henderson, 113 lb. 1. It was error, therefore, to allow these plaintiffs as the heirs-at-law of Emily E. Sears to maintain this action, either as taking directly from her by descent, through the Eedmond deed, or by purchase as remaindermen under the will of their grandfather. These premises in question have never been lawfully set apart, divided, or conveyed so as to become the separate property of the plaintiffs, or of their mother and her trustee, and plaintiffs are not entitled to the judgment appealed from. The defendants have the right to raise this objection and have it allowed, if well taken. They have already been victimized in one case by paying the executors and then being compelled to pay the heirs-at-law because of the defect of the executors’ title, and they do not mean to be caught a second time in a like fix if they can avoid it. Mitchell v. Met. El. Ry. Co., 31 N. Y. State Reporter, 625.
    VI. At the opening of the trial of this action the defendants demanded a trial by jury on the ground that this was an action for a nuisance. The court denied the motion, and defendants duly excepted. The defendants, also, demanded a jury trial on the issue of past damages, on the ground that they were entitled to it by the Constitution and the Code. The court denied the motion, and the defendants duly excepted. The plaintiffs claim in this complaint that the railroad subjects their property to a continuing nuisance, and their prayer is in effect that the nuisance be abated or. enjoined, and that the defendants pay damages. A private nuisance is defined to be anything done to the hurt or annoyance of the lands, tenements or hereditaments of another. Heeg v. Licht, 80 N. Y. 579, 582. A plaintiff cannot deprive a defendant of his right to trial by jury of an issue of fact in an action for a nuisance, as provided by § 968 of the Code, by putting his action in the form of an equity suit and asking for an injunction. Before the adoption of the present Constitution, the existence of an alleged nuisance and the amount of damages were both inquired of by jury, and the constitutional guaranty of trial by jury applies to such an action as one of the cases in which it has been heretofore used. Hudson v. Caryl, 44 N. Y. 553; Dorr v. Dansville, Gaslight Co., 18 Hun, 274; People v. Met. Tel. Co., 31 Ib. 596, 600. The plaintiff, by bringing his equity action thereby waives his right to trial by jury, but he cannot thereby deprive the defendant of such right. Duncan v. Associates, etc., 71 N. Y. 334, 340. But, if this is to be treated as an action, not for a nuisance, but simply to enjoin continuing trespasses, and to recover past damages, then it was error to refuse the defendants’ claim for a jury trial of the issue of past damages. Jefferson v. N. Y. El. Ry. Co., 33 State Rep. 916. In the case just cited, Justice Daniels says that a motion for a jury trial in one of these elevated railroad equity cases, was properly denied, because “it was addressed to the whole case, and not merely to that part of it which included the damages allowed ” (Ib. 117). Here the motion was addressed solely to the trial of the issue of the past damages. We respectfully submit that this motion should have been granted as a matter of right.
    
      
      G. Willett Van Nest, attorney and of counsel, for respondents, on the questions considered in the opinion, argued:
    I. This partition made by the executor would have been effectual by itself, for the fee passes by the terms of the will itself. Corbin v. Jackson, 14 Wend. 619 ; Wood v. Fleet, 36 N. Y. 499; Per Kent, C. J., 4 Johns. 207, 212.
    II. In order to have the sanction of the court a partition suit was brought to which all those interested in the estate were made parties. The judgment in that partition suit absolutely settled the rights of all the persons interested, in the estate by repeated adjudications of the courts. Jordan v. Van Epps, 85 N. Y. 427; Brooks v. Davey, 109 Ib. 495; Howell v. Mills, 56 Ib. 226; Blakely v. Calder, 15 Ib. 617; Brevoort v. Brevoort, 70 Ib. 136 ; Griffin v. Long Island R. R. Co., 102 Ib. 452; Patrick v. Shaffer, 94 Ib. 430; Cromwell v. Hull, 97 Ib. 209; Reed v. Reed, 107 Ib. 545. (A.) These premises remained then in the hands of Goold Hoyt, as executor and trustee, under the will for the benefit of Mrs. Sears. It appears by the partition suit that all the other real estate owned by the testator went to his other heirs as provided by the will. The referee made a deed conveying the interests of all these heirs to Goold Hoyt of the city of New York as trustee under the last will and testament of Goold Hoyt, deceased, for Emily E. Sears and children, and thereby the partition suit served its sole purpose in excluding the other children of the testator from all interest in this property. This sale by the referee gave further recognition to the partition made by the executor as testified to by Mr. Redmond, and established these premises as the part of the trust estate held before by him as tenant in common, and thereafter as of the entire title to this parcel under the provisions of the will. By the very terms of the will this estate is devised to these plaintiffs. These remainders vested in these plaintiffs on the division by the executors. Provost v. Provost, 70 N. Y. 141. The counsel for the defendants contended at the trial that a trustee should be appointed by the Supreme Court to make a conveyance to these plaintiffs. It is quite well settled that on Mrs. Sears’ death the trust estate terminated, for the will provided then for the vesting of the remainder in possession, and the Supreme Court cannot appoint unless a trust estate remains unexecuted. Nicoll v. Walworth, 4 Den. 385 ; Norton v. Norton, 2 Sandf. 296; Jarman on Wills, p. *292, n. 2; Colie v. Jamison, 4 Hun, 286. (B.) Even if an estate is devised to trustees to pay the income to A. for life, and on his death to convey to C. the trust ceases on the death of A. and the estate immediately vests in C. without a conveyance, under the Statute of Uses. Miller v. Wright, 109 N. Y. 194, 199-200; Matter of Livingston, 34 Ib. 556; Bruner v. Meigs, 64 Ib. 516; Manice v. Manice, 43 Ib. 368; Vanderpoel v. Loew, 112 Ib. 180; Stevenson v. Lesley, 70 Ib. 512; Van Brunt v. Van Brunt, 111 Ib. 178. The legal title is of course in the trustees until the death of the life tenant, just as the legal title is in a life tenant where property is devised to him for life and on. his death to others. The legal title is always, however, vested in the remaindermen by the Statute of Uses on the termination of the life estate, whether that estate be confided to the care of trustees or of the life tenant himself. Perry on Trust, § 351; 1 R. S. 725-731, contained in Vol. 4, pp. 2434 -2440 of 8th ed., commencing at § 34 on p. 2434. (C.) To the claim that a trustee should be appointed it is only necessary to add that it is quite well settled that the Supreme Court can only appoint a trustee where it is shown that the trust is unexecuted at the time of the application. In re Waring, 99 N. Y. 114; Laws 1882, Ch. 185 ; Code C. P., § 2818. Mr. Hoyt was not the surviving trustee. His brother H. S. Hoyt succeeded him.
    • III. In the foregoing we have assumed the validity of the contention of the defendants that the deed by Henry S. Hoyt as executor did not pass the title to Mr. Redmond and consequently to his grantee 'Mrs. Sears, the mother of the plaintiffs. We cannot, however, agree with that contention. Henry S. Hoyt being appointed trustee by the testator, became such in legal effect in 1882. Robertson v. McGeoch, 11 Paige, 640 ; Codding v. Newman, 3 T. & C. 364; 63 N. Y. 639; Code C. P. §§ 2639, 2642; Judson v. Gibbons, 5 Wend. 224, 227; Williams v. Conrad, 30 Barb. 526. This is an appointment under the will and it is unnecessary to claim that it was made under § 2818 of the Code. He had done nothing to decline the appointment. His acceptance was all that was necessary to constitute him trustee. Perry on Trusts, § 260; Earle v. Earle, 93 N. Y. 104; Hill on Trustees, 214, 215; Cummins v. Cummins, 3 Jones & Labouche, 64 ; Ward v. Butler, 2 Molloy, 533. Frequently an executor or trustee does not accept at once. On becoming trustee he acquired all the interest in the property which he would have acquired earlier by force of the will, which provides. “ Item. All the powers, authorities, estates and trusts hereby given to my executors, I do hereby give to such one or more of them as take upon himself or themselves the execution of this my will and to the survivors and last survivor of them.” On being appointed executor by the surrogate he became the successor of his brother, Goold Hoyt, who had died, and he acquired the premises in suit, also under the very terms of the referee’s deed, which expressly stated that the conveyance was to the executor, to have and to hold him, “ his successor and assigns.” He was successor and also an assign under the terms of the will, under which this property - was conveyed.
    
      Apart from this deed he acquired, as we have contended, under the terms of the will itself, an estate in trust in these premises the moment they became divided by himself . and his brother. The will gave authority to sell the real estate held under the trust. He sold to Goold Redmond for a valuable consideration, who conveyed to .Mrs. Sears, the mother of the plaintiffs.
    IV. The case seems so clear that it has only been argued at this length because the counsel for the defendants showed such reliance on his position. If there is any substance in that position, it is still well settled that the plaintiffs, being the real parties in interest, can sue. Hubbell v. Meedbury, 53 N. Y. 98.
   Per Curiam.

It is claimed by the learned counsel for the appellant that the plaintiff did not show title to the land, appurtenant easements to which have been taken, as the complaint charges. The supposed defects in the title, as claimed, arise from the non-compliance with certain of the provisions of the will of one Hoyt, from whom the title comes.

If the land is a part of a share, described in the will, which was to be set off to the trustee for the mother of the present plaintiff for her life, then under the will the plaintiff took the remainder in fee at her death. This setting off was accomplished by the partition suit, to which all persons who could question plaintiff’s title to the land were parties. These parties having received in lieu of undivided interests the whole of the fee of the other parcels of land cannot claim that they have an undivided interest in the land conveyed by the referee to Hoyt as trustee for plaintiff’s mother. The mother having died, the legal estate of the trustee then ceased.

The defendants have not a right to a jury trial in this case as the action is for equitable relief. “ Where a plaintiff brings an action for both legal and equitable relief in respect of the same cause of action, the case presented is not one of right triable by jury under the constitution, Cogswell v. N. Y., N. H. & H. R. R. Co., 105 N. Y. 319.

Judgment affirméd, with costs.  